Executive Privilege Cannot Block Bolton’s Testimony

President Donald Trump has said that he would take the unprecedented step of invoking executive privilege “for the sake of the office [of president],” should former National Security Advisor John Bolton or other national security officials be called to testify in his Senate impeachment trial. But for four reasons, the presiding judge, Chief Justice John Roberts, should reject any such executive privilege claim if proffered and require Bolton’s testimony.

First, judicial precedent does not condone the extension of executive privilege to former officials like Bolton in the context of a Senate impeachment trial. Second, Trump may not invoke national security privilege with respect to Bolton’s and others’ information regarding the president’s conversations with Ukrainian President Volodymyr Zelenskyy. Third, even if Trump could, any such claim of privilege has now likely been waived by the actions of the president, Bolton and others. Finally, this uncontroversial legal issue should not be litigated in courts. Chief Justice Roberts should simply cite the precedent detailed here to require the testimony as part of his judicial management of the impeachment trial.

Executive Privilege Does Not Apply to Bolton’s Testimony

All relevant judicial precedents make clear that Bolton should not be able to invoke executive privilege to avoid testifying in the Senate impeachment trial. As a threshold matter, there is no precedent for the president invoking executive privilege to preclude the private testimony of a witness who is able and willing to testify. Bolton is a private citizen who is no longer a member of the executive branch. He has already indicated his willingness to testify, and he has no legal authority to dictate the conditions. If Trump now attempts to assert executive privilege to prevent Bolton from testifying, existing precedent from the Supreme Court, Circuit Courts, and D.C. District Court all suggest that Bolton’s testimony is not protected by executive privilege.

In United States v. Nixon, the only Supreme Court case to address executive privilege over presidential communications, the Court required President Richard Nixon to comply with a subpoena to turn over audiotapes of his conversations to a special prosecutor. The Nixon Court explicitly rejected the notion of unqualified executive privilege, instead holding that the privilege should be limited to communications in furtherance of actual presidential responsibilities. “[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity ….” Instead, the Court carefully limited its conception of executive privilege to communications “of [the president’s] office” “in performance of his responsibilities.” Three years later, the Supreme Court explained that the Nixon Court had “held that [executive] privilege is limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’” By so saying, the Nixon Court established that executive privilege does not extend to purely political communications that concern the advancement of a crime or other acts in violation of law. Executive privilege should therefore not apply to Trump’s impeachment, where the Government Accountability Office has determined that the withholding of aid from Ukraine—the issue at the heart of the impeachment—violated the Impoundment Control Act, and possibly various federal campaign finance laws as well.

The Second Circuit’s decision in United States v. Myers clarifies that government officials cannot use constitutional privileges to hide evidence of crimes. The court in Myers rejected a congressman’s attempted use of the Constitution’s Speech or Debate Clause to bar the introduction of evidence from a conversation that took place on the floor of the House of Representatives, concerning a bribe unrelated to legitimate congressional activity. “One would think,” Judge Jon Newman wrote, “that a Congressman, even when grasping for objections to a criminal conviction, would understand that the Speech or Debate Clause accords immunity to what is said on the House floor in the course of the legislative process … not to whispered solicitations to commit a crime.” Similarly, if the underlying activity here constituted a crime or unlawful act relating to impeachable conduct, but unrelated to the official’s proper government duties, an executive privilege based in the Constitution should not apply.

More fundamentally, claims of executive privilege should be met with particular skepticism when raised in the context of a presidential impeachment trial, where the question is whether the president used his office to commit impeachable offenses. Bolton would be called as a witness pursuant to a congressional subpoena, which should carry the same weight as the grand jury subpoena in Nixon. In Comm. on Judiciary, U.S. House of Representatives v. Miers the D.C. District Court required former White House Counsel Harriet Miers to comply with a congressional subpoena, explaining that:

Congress’s use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury’s in United States v. Nixon. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon, the president may only be entitled to a presumptive, rather than an absolute, privilege here.

The justification for the presumptive executive privilege stated in United States v. Nixon—to preserve the “president’s ability to receive candid advice”—does not apply in the impeachment setting, where allegedly impeachable conduct has already occurred. Outside of the context of litigation or traditional congressional oversight, executive privilege is available only to the person inhabiting the office of the president, not to his subordinates. The Nixon Court asserted that the “presumptive privilege [over executive communication] must be considered in light of our historic commitment to the rule of law,” particularly the Framers’ vision of three co-equal branches of government, which envisioned Congress’s ability to conduct oversight of the executive branch through removal proceedings.  In the impeachment trial, the president’s lawyers have argued that “[n]ot a single witness testified that the president himself said that there was any connection between any investigations and security assistance, a presidential meeting or anything else.” If Bolton is called to testify to the contrary, the Court’s balancing test in United States v. Nixon would dictate that claims of evidentiary need to protect the integrity of the congressional impeachment process—in rebutting that defense and establishing the contours of an illegal act—would outweigh any presumptive right to executive privilege.

In In Re Sealed Case, the D.C. Circuit limited the scope of executive privilege, vacating the district court’s decision not to enforce a subpoena compelling the testimony of former Secretary of Agriculture Mike Espy. In rejecting Espy’s executive privilege claim, the court emphasized that the privilege “should be narrowly construed” and that “[t]he argument for a narrow construction is particularly strong in cases … where the public’s ability to know how its government is being conducted is at stake.” In the current presidential impeachment trial, the core question—whether President Trump should be removed from office because he withheld congressionally appropriated funding to Ukraine for his own personal political gain—directly addresses “how [the] government is being conducted,” and thus requires narrow construction of executive privilege.

Significantly, the D.C. Circuit in In Re Sealed Case identified two distinct privileges within the broader executive privilege: a presidential communications privilege and a deliberative process privilege. In Loving v. Department of Defense, the D.C. Circuit explicitly clarified that “the presidential communications privilege is more difficult to surmount than the deliberative process privilege.” But the discussion of executive privilege thus far has focused exclusively on the presidential communications privilege, because there is no serious claim that Bolton’s testimony could be covered by the deliberative process privilege. As the court in In Re Sealed Case explained, “the [deliberative process] privilege disappears altogether when there is any reason to believe government misconduct occurred.” Here, there is clear reason to believe government misconduct occurred when the Trump Administration broke the law by withholding aid from Ukraine.

National Security Privilege Does Not Apply to Bolton’s Testimony

In United States v. Nixon, the Supreme Court further recognized the existence of a national security privilege, distinct from general executive privilege. But under Nixon, Trump should not be able to invoke national security privilege to bar Bolton from testifying in the Senate impeachment trial. The Supreme Court’s earliest modern articulation of the national security privilege came in United States v. Reynolds, which observed that the privilege is appropriate only when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged ….” Even then, “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” Courts have interpreted the privilege to apply only where disclosure “would result in impairment to the nation’s defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments, or where disclosure would be inimical to national security.” This precedent suggests that the privilege should not bar the suppression of material, nonsensitive information that has already been publicly disclosed, and which goes not to specific intelligence or national security matters, but rather to unlawful executive misconduct.

Although the Supreme Court has rarely addressed this privilege, the lower courts have since developed two models of the national security privilege, which the Ninth Circuit has characterized as “the Totten bar and the Reynolds privilege.” “The Totten bar is invoked where the very subject matter of the action is a matter of state secret”—such as espionage agreements or the location of nuclear weapons—which “completely bars adjudication of claims premised on state secrets.” But “in order to be a ‘state secret,’ a fact must first be a ‘secret.’” That is obviously not the case with regard to the current impeachment controversy, which has now been the subject of massive public discussion.

In contrast, the Reynolds privilege—the only privilege potentially relevant to any claim Trump might now make with respect to Bolton—does not bar adjudication, but “is an evidentiary privilege rooted in federal common law” that “may be asserted at any time” and if successfully asserted, “remove[s] the privileged evidence from the litigation.” The D.C. Circuit has characterized the Reynolds privilege as subject to a stringent inquiry that includes at least four steps. First, “whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.” Second, “[t]he privilege may be asserted only by the government itself; neither a private party nor an individual official may seek its aid.” Third, the D.C. and Ninth Circuits have suggested that invoking national security privilege requires a “formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” Fourth, such invocations must be accompanied by “some form of detailed public explanation of the kinds of injury to national security … and the reason those harms would result from revelation of the requested information” or a statement of “why such an explanation would itself endanger national security.”

Under this reasoning, neither Trump nor Bolton would have any basis to invoke the national security privilege with respect to facts that are not national security secrets, as opposed to facts that may be embarrassing to the president. Even if president Trump himself attempted to invoke the national security privilege to prevent Bolton from testifying to the Senate, such an invocation could not be a blanket assertion, but would need to disentangle information that is already public from bona fide national security secrets that have not yet been disclosed. Such a formal, nuanced claim of privilege would have to be accompanied by a detailed explanation of why identifiable national security injury would arise from Bolton’s testimony, and how any such privilege has not already been waived by the action of Bolton, the president, or others.

Trump and Administration Officials Have Waived Any Claim of Privilege

Even if executive or national security privilege were found to apply to Bolton’s testimony, prior voluntary disclosures by the president, his Chief of Staff, and Bolton himself, among others, have waived those claims of privilege. The D.C. Circuit has held that confidential information cannot be privileged once it becomes publicly known. The same court held that voluntary disclosures by a client to a third party constitute a waiver of attorney-client privilege, both for the specific information disclosed and “communications relating to the same subject matter.” Because  voluntary “release of a document only waives these privileges” for that document, any specific documents or information that have already been disclosed regarding  Trump’s decision to withhold aid from Ukraine can no longer be protected as privileged.

Repeated public statements that Trump and senior administration officials had benign motivations for his Ukraine policy actions undercut the argument that information Bolton and others have on this matter can be withheld as state secrets properly subject to executive or national security privilege. Trump, Acting White House Chief of Staff and Office of Management and Budget Director Mick Mulvaney, former National Security Senior Director Fiona Hill, and former National Security Advisor Bolton himself have all effectively waived the privilege over Bolton’s communications regarding the withholding of aid from Ukraine. First,  Trump has (1) released memos memorializing his April and July 2019 telephone conversations with Zelenskyy; (2) repeatedly requested that the public read these “transcripts;” and (3) commented on his general motivations and his intent in uttering specific statements during those conversations. Second, at a press conference on October 17, 2019, Mulvaney provided his own detailed explanation of the factors that supposedly guided the president’s decision to withhold funding. Third, former Director Hill testified to the House under oath that Bolton had called Trump lawyer Rudolph Giuliani a “hand grenade” and labeled Ambassador Gordon Sondland and Mulvaney’s activities toward Ukraine a “drug deal.” Given that any claim of privilege to that conversation has now been waived, the Senate is entitled to hear from Bolton himself the context in which those statements were or were not made.

Finally, in a forthcoming book due to be published in March of this year, Bolton himself has now reportedly confirmed that the president froze aid in order to pressure Ukraine to investigate former Vice President Joe Biden. Such information would directly contradict the heart of the impeachment defense that is currently being presented at trial by the president’s lawyers. The president has not yet asserted executive privilege over the unpublished manuscript, despite its submission to the White House’s Executive Management Directorate in late December. Bolton has likely shared the manuscript at least with his publishing company, editor, and close associates. By circulating this manuscript, Bolton has already disclosed the information he would present in impeachment testimony outside of the executive branch, thereby waiving his executive privilege claim. Moreover, the White House has not argued that executive privilege would bar publication of this material, which Bolton himself—as one of the country’s most senior former classifying national security officials—reportedly insists is not classified.  If this material can be voluntarily disseminated and publicly disclosed for private profit-taking, that voluntary disclosure waives any claim that the communications contained therein remain privileged.  There is thus no legal basis for either Trump or Bolton to assert that executive privilege should bar Bolton from testifying regarding the same subject matter at the Senate impeachment trial.

The Chief Justice Has Authority During this Impeachment Trial to Rule Upon and Reject Any Claim of Executive or National Security Privilege.

Finally, the lead House manager, Rep. Adam Schiff, said he would call on Chief Justice John Roberts to expedite rulings on any disputes between Congress and the president regarding witness testimony or documents, should the Senate vote to subpoena them. The Senate Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials have vested Chief Justice Roberts with authority to rule on all evidentiary matters—a category that includes the testimony of Bolton and others whose testimony might be relevant. The Senate Rules of Procedure grant the Chief Justice authority to “rul[e] on all questions of evidence:” including “but not limited to” issues of “relevancy, materiality, and redundancy of evidence and incidental questions.” Every completed Senate impeachment trial in history has included witness testimony as part of the evidence presented, and if Bolton is called to testify, the Chief Justice has ample authority to decide issues of claimed privileges.

In this very proceeding, the Chief Justice has already announced the admission into the impeachment record of the allegedly improperly classified document of vice presidential aide Jennifer Williams relating to a phone call between Vice President Mike Pence and Zelenskyy one week before Zelenskyy met with Trump in September 2019 at the United Nations. Williams told House investigators that Trump’s mention of specific investigations into political rivals was “unusual and inappropriate” and “shed some light on possible other motivations behind a security assistance hold.” While this evidence was admitted pursuant to a closed-door agreement among Senators, there is no legal reason why Chief Justice Roberts’s authority as presiding judge requires that he first obtain bipartisan approval by the Senators, who in this matter are functioning as voting jurors, to rule that Bolton’s witness testimony is admissible in the face of insubstantial claims of executive or national security privilege. And if he were to rule that testimony admissible, it is hard to imagine a majority of the Senate voting to overturn his ruling in order to keep that testimony from public view, especially if that information seems likely to appear in public shortly in book form.

Nor, finally, is there any legal basis for appealing the Chief Justice’s evidentiary ruling to any other court. The Constitution decrees that the Senate “shall have the sole power to try all impeachments” and “[w]hen the President of the United States is tried, the Chief Justice shall preside.” Simply put, an evidentiary ruling by the Chief Justice is textually committed to the Senate impeachment trial process. Accordingly, any effort to challenge in court an evidentiary ruling by the Chief Justice in the ongoing impeachment trial should be summarily dismissed as a nonjusticiable political question.

Conclusion

In sum:

  1. If subpoenaed as a witness in the Senate impeachment trial of President Donald Trump, former National Security Advisor John Bolton and other officials should be required to testify.
  2. Bolton’s and other officials’ communications are not protected from disclosure by either executive or national security privilege.
  3. Even if Bolton’s and other officials’ communications were covered by one of these privileges, those privileges have effectively been waived by the actions and decisions of Trump, Mick Mulvaney, Fiona Hill and others, including Bolton himself.
  4. Finally, if Bolton or other officials are subpoenaed, Chief Justice Roberts, as Presiding Officer, has ample authority, without reference to other courts, to reject an unsubstantiated assertion of executive privilege and require their testimony.
Image: Leon Neal/Getty

 

About the Author(s)

Harold Hongju Koh

Sterling Professor of International Law, Yale Law School; Legal Adviser, U.S. Department of State (2009-13), Assistant U.S. Secretary of State for Democracy, Human Rights and Labor (1998-2001). Member of the editorial board of Just Security.

Rosa Hayes

JD candidate at Yale Law School (class of 2020)

Annie Himes

Annie Himes is a J.D. student at Yale Law School. She formerly worked as a Junior Fellow in the Russia and Eurasia Program at the Carnegie Endowment for International Peace and held a Fulbright Scholarship in Saratov, Russia, where she taught at Saratov State University. Annie received a B.A. from the University of Nebraska-Lincoln in Russian, global studies, and history, and is a Truman Scholar. Follow her on Twitter (@anniehimes)

Dana Khabbaz

JD candidate at Yale Law School (class of 2021)

Michael Loughlin

JD candidate at Yale Law School (class of 2021)

Mark Stevens

JD candidate at Yale Law School (class of 2021)