Analysis: Courts often decline to get involved in executive privilege fights, considering the disputes to be political, not legal.
ADVERTISEMENTWASHINGTON — If the Senate voted to hear John Bolton's testimony during the impeachment trial of President Donald Trump, the White House would face long odds in trying to get a court to prevent it.
The president has already suggested Bolton's testimony might violate executive privilege.
"The problem with John is that it's a national security problem," Trump said last week in comments in Davos, Switzerland. "John, he knows some of my thoughts, he knows what I think about leaders. What happens if he reveals what I think about a certain leader and it's not very positive, and then I have to deal on behalf of the country? It's going to be very hard, it's going to make the job very hard."
The first challenge for the White House is a procedural one. Without an order from a court blocking Bolton from testifying, he's free to do whatever he wants. That's the opposite of the way these disputes normally play out, when administration officials are prevented by the White House from appearing before Congress unless a court orders them to do so.
In the normal battle over executive privilege, a court defeat or delay works in favor of the administration. But if Bolton is subpoenaed and the White House tried to block it, court delay or defeat would work in his favor.
This is not, however, a well-developed area of the law. Courts often decline to get involved in executive privilege fights, considering the disputes to be political, not legal, ones. Battles between Congress and the administration over executive privilege usually end when the two sides work out a way to resolve the standoff.
There is apparently no case of a White House trying to block the testimony of a former official by asserting executive privilege. And there is certainly no instance of a president citing executive privilege to block testimony or withhold evidence in an impeachment trial before the Senate. Just the opposite is true.
Presidents since George Washington have suggested that while they can withhold documents from Congress when it is engaged in legislative fact-finding, they may not be able to resist demands during an impeachment.
Federal appeals court Judge Neomi Rao noted that history in her dissent from an October ruling allowing the House Oversight Committee to seek financial documents from Trump's accountants. "Congress, the Executive, and the courts have maintained that requests under the legislative and impeachment powers may be treated differently," she wrote.
There's another potential obstacle for the White House, which could discourage federal courts from refereeing any dispute over Bolton. Three decades ago, a federal judge from Mississippi, Walter Nixon, was impeached by the House and convicted in the Senate for lying to a grand jury that was investigating bribery.
Nixon challenged his conviction, arguing that the Senate improperly heard the witnesses in committee instead of on the Senate floor. That violated the Constitution's requirement that the Senate must "try" all impeachments, he said, arguing that the failure to hear the witnesses on the Senate meant there was no actual trial.
But the U.S. Supreme Court unanimously tossed his case out, ruling that the courts cannot second-guess how the Senate conducts impeachments, because the Senate has the "sole power" to try them. The courts "were not chosen to have any role in impeachments," the ruling said.
Letting the courts into the process would "expose the political life of the country to months, or perhaps years, of chaos."