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A Question of Executive Privilege: Professor David Driesen Speaks to VOA

Posted on Wednesday 1/29/2020
David Driesen

How Trump Will Try to Block Bolton's Testimony in Senate Impeachment Trial

(Voice of America | Jan. 28, 2020) With the U.S. Senate increasingly likely to call former National Security Adviser John Bolton to testify in President Donald Trump's impeachment trial, Trump's lawyers are almost certain to assert executive privilege to block his testimony.

Bolton poses a serious threat to Trump's defense in light of reports of Bolton's forthcoming book which corroborates one of the central allegations in the impeachment case against Trump —  that the president tried to coerce Ukraine into investigating former Vice President Joe Biden and his son, Hunter.

But if Trump's lawyers are determined to prevent Bolton from testifying, the claim of executive privilege is unlikely do the trick. Although courts have long recognized a president's right to have confidential communication with his advisers, that right is not absolute, experts say. What's more, when it comes to impeachment, legal experts say the courts will likely side with the interest of Congress in obtaining information over the president's executive privilege claims ...

... But executive privilege is not an unlimited power. That principle was established in a landmark 1974 Supreme Court ruling that forced the White House to turn over tape recordings of conversations between President Richard Nixon and his aides to a special prosecutor investigating the Watergate break-in.  

While recognizing the constitutionality of executive privilege, the high court unanimously ruled that the principle did not override the need for key evidence in a criminal trial. The White House handed over the tapes, and Nixon resigned two weeks later as the House prepared to impeach him.

The case for withholding information in an impeachment case is even weaker, said David Driesen, university professor at the Syracuse University College of Law.

In an impeachment context, "the interest in getting accurate information is just too great," Driesen said. "It doesn't make any sense to say that information that's important to an impeachment trial could be withheld based on executive privilege."

Possibility of compromise

Trump's lawyers haven't said how they plan to stop Bolton's testimony. But if the Senate subpoenas Bolton, the president's legal team could theoretically ask a federal district court to bar him from testifying on executive privilege grounds.

In theory, the case could eventually wind its way to the Supreme Court, but legal experts say that scenario is highly unlikely.

"I can't imagine him winning the case," Driesen said. "Frankly, even with this very conservative Supreme Court, it would be an immense change from the way they've approached such questions in the past" ...

Read the full article.