President Donald Trump’s impeachment team reportedly believes that executive privilege poses “significant and important” issues that could prevent former National Security Advisor John Bolton from testifying in a Senate impeachment trial. Though executive privilege may be important to the implementation of executive powers, it does not, as the president’s lawyers argue, “go to the heart” of the president’s constitutional authority under Article II, and it does not stand as a bar to Bolton’s testimony before the Senate.
As I wrote back in November, amidst the House investigations that led to the two articles of impeachment against Trump, there are three reasons why executive privilege raised no impediment to the testimony in the House from any witness, including individuals who served in the executive branch. The first is history. Presidents have long claimed a need to shield from disclosure confidential communications with their advisors. Trump’s defenders in Congress, for example, have pointed to the decision by President George Washington in 1786 to decline to produce certain papers related to the Jay Treaty. But what such statements overlook, as professor Jean Galbraith has observed, is the specific exception to the privilege Washington himself acknowledged: when the House has the “purpose … of an impeachment.” Further, we know that Washington’s advisors agreed with him that executive privilege should not apply in the impeachment context.
Second, the Supreme Court’s 1974 decision in United States v. Nixon supports the view that executive privilege does not apply to impeachment inquiries. In that case, the Court considered the question whether President Richard Nixon could use executive privilege to prevent the disclosure of information related to an ongoing federal criminal proceeding. The Supreme Court recognized the importance of candid advice from the president’s advisors and reasoned that the need to keep such communications confidential drives executive privilege. Absent the privilege, this thinking goes, the president could be denied honest counsel.
In the case of an impeachment proceeding, however, the Court’s justification for the privilege fails. The risk of undermining the president’s ability to receive candid advice is most present when the substance of his communications is sought in connection with ordinary judicial proceedings or congressional oversight of federal programs. Litigation over the validity of a president’s official actions has become commonplace, as both houses of Congress are regularly engaged in legitimate oversight of the actions of the president and the agencies he commands. Indeed, the nature of both judicial and legislative proceedings that might implicate confidential Oval Office discussions is such as to create numerous instances in which information protected by executive privilege could be sought, potentially undermining its purpose.
Presidential impeachment, on the other hand, is substantively different from lawsuits about executive action or the regular day-to-day of congressional oversight. As an initial matter, impeachment is comparatively infrequent. Indeed, the current effort is the fourth in the nation’s history, which makes it unlikely that it would cause a president’s advisors to, as the Nixon court put it, “temper candor with a concern for appearances” in their communications with the president.
Further, an impeachment is objectively distinguishable from both litigation and legislative oversight—it is concerned exclusively with the person of the president, as opposed to the resolution of a civil or criminal dispute about the validity of a law, or the ways in which a president has exercised policy discretion. Impeachment is focused on matters and incidents outside of public policy considerations that underlie the need for executive privilege. Jonathan Shaub has made a similar argument, and the Watergate-era decision by the U.S. Court of Appeals for the D.C. Circuit in Senate Select Committee v Nixon noted that the impeachment context may be distinguished from ordinary and quotidian congressional oversight efforts.
Finally, even assuming impeachment is not sufficiently different from litigation and congressional oversight, the balancing embraced by Supreme Court in Nixon to determine when the privilege must give way indicates that, in the impeachment context, the need for the information sought should outweigh the privilege. The Supreme Court in Nixon concluded that the integrity of the criminal justice system required the production of the information being requested. As Mike Stern has argued, the similarities between impeachment and a criminal proceeding suggest that assertions of executive privilege should be outweighed in the impeachment context as well.
The reasons why executive privilege did not prevent testimony during the investigation phase of impeachment apply equally to a Senate trial of the resulting articles. No doubt, Trump’s lawyers will cling to the language in Nixon suggesting that, at least where information is sought in judicial proceedings, a claim of executive privilege related to “military, diplomatic, or sensitive national security secrets” should be respected. The information at issue here arguably falls into this category. But an impeachment trial is not a judicial proceeding. Though Senators will sit in judgment of the president, they do not thereby become judges for constitutional purposes, any more than Congress becomes an Article III court. It is a particular legislative role, one the framers gave the Senate because judges themselves might be subject to impeachment—which is also a reason why, as the court explained in a decision reviewing the impeachment of Judge Walter Nixon, the determination of how to try an impeachment is the Senate’s alone.
The heart of the impeachment power – to borrow the Trump defense team’s language – lies in its extraordinary nature. Impeachment may prove the only means by which to hold a president accountable—even when the allegations that form the basis of the articles of impeachment implicate foreign affairs and national security concerns. If it were sufficient to invoke these matters to shield relevant communications from disclosure, the Senators would be denied the information needed to determine whether the president has committed the high crimes and misdemeanors alleged in the articles of impeachment. As I argued in respect to the House impeachment inquiry, such a conclusion would effectively make the president unimpeachable when his alleged misdeeds occurred within the expanding realm of foreign affairs and national security, a result contrary to the plain text of the Constitution.
Of course, the Senate may decide that it will respect the president’s claim of executive privilege in respect to Bolton and any other witness who may testify. But the Constitution does not demand that result as a matter of history or logic, and as the Court in Nixon recognized, though executive privilege has evolved to serve important purposes, it is neither absolute nor unqualified. When set against impeachment, the most extraordinary of the Constitution’s mechanisms for holding the president accountable, the privilege should fail.