Bolton and the Toothless Specter of Executive Privilege in the Senate

White House National Security Advisor Ambassador John Bolton talks to reporters Wednesday, May 1, 2019, outside the West Wing entrance of the White House. (Official White House Photo by Tia Dufour)

[Editor: This is a guest post by Kel McClanahan, the executive director of National Security Counselors and an adjunct professor at the George Washington University Law School, where he teaches Law of Secrecy. He can be found on Twitter at @NatlSecCnslrs.]

As the Senate begins to seriously consider the possibility of former National Security Advisor John Bolton testifying in the impeachment trial, it is being reported that if Bolton were allowed to testify, the White House might assert executive privilege to prevent it.

Some fear that Senators will even vote not to allow witnesses at all simply because they do not want to wait for a court to resolve a privilege battle. While it would be correct to say that the White House might try to assert executive privilege in that instance, it is not at all clear that such a ploy would actually have any practical effect, for the very reason the Republican Senators have cited in defense of the rules of procedure established by Majority Leader Mitch McConnell: the Senate is not a court of law. For that reason, the possibility that the White House might claim privilege should not factor into anyone’s consideration of whether to allow testimony.

Simply put, in a trial in a court of law, the jury is only allowed to hear evidence that the judge determines to be admissible. If a claim of privilege is made by a party, the judge considers the arguments for and against the privilege and issues a ruling. If the judge rules that the material in question is privileged, the jury never hears it. The cornerstone of this practice is the basic idea that the judge is the information gatekeeper for the jury, and anyone saying something during the trial that the judge has deemed inadmissible is defying a court order and courting a contempt citation.

McConnell has made it clear from the outset, however, that the Senate impeachment trial will not operate as a judicial trial would. To a certain degree, this is not an unreasonable position for him to take. An impeachment trial is as much a political proceeding as it is a legal one, where a majority vote can overrule any conceivable decision made by the Chief Justice on any question, including the admissibility of evidence. McConnell simply took this concept to its logical conclusion when he challenged and defeated Senator Chuck Schumer’s proposed amendment to merely allow the Chief Justice to make decisions about the admissibility of evidence and the propriety of subpoenas, instead insisting that every evidentiary question be put to a vote.

The monkey’s paw angle of this approach, though, is that it drives home the message that the normal rules do not apply, and one of those rules is the idea that giving inadmissible evidence to the jury has consequences. If a witness or a lawyer privately contacts the jury outside of the courtroom and tells them information the judge has determined to be inadmissible, that is no less a violation of the court order than yelling it from the witness stand. But if John Bolton were to tell the House managers ostensibly inadmissible information, or even if he were to write it in the Washington Post, he would suffer no consequences.

Revealing information covered by executive privilege is not a crime. It is not even an actionable claim under his non-disclosure agreements.

In short, the lengthy court battles the Republican Senators appear to fear would not be necessary, because the White House cannot impose a prior restraint on a former employee based on a claim of executive privilege. Because everything in the Senate trial is a question of majority vote, the only way Bolton would ever face any potential consequences would be if 51 Senators voted on the record to hold him in contempt of Congress, and if the Department of Justice were to actively try to prosecute him for it. That is not a reasonable possibility.

If the Senate votes to subpoena Bolton – and if the White House makes a claim of executive privilege – the most the Senate can do to enforce the White House’s claim is prohibit Bolton from officially testifying personally on the Senate floor.

Bolton would be well within his rights to unofficially tell everything he knows to anyone who would listen, since he had in fact received a subpoena from the Senate, and there’s really nothing the Senate could do to stop him, or stop the information he revealed from being repeated to the Senate and the world.

Photo Credit: White House National Security Advisor Ambassador John Bolton talks to reporters Wednesday, May 1, 2019, outside the West Wing entrance of the White House. (Official White House Photo by Tia Dufour)

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