A legal fight over executive privilege in the middle of the Senate’s impeachment trial of President Donald Trump could put it into suspended animation.
If senators ultimately decide to subpoena Trump administration documents or seek witness testimony, House Democratic managers might have to decide whether to now wage court battles that were avoided during the House phase of the impeachment process.
Senate Judiciary Chairman Lindsey Graham has said in recent days that the Senate would either need to honor the claims that would likely be made by the White House regarding testimony from witnesses like acting Chief of Staff Mick Mulvaney and former national security adviser John Bolton, or go to the federal courts.
“If the president claims executive privilege, I’ll give him the same right as every other president to litigate it,” the South Carolina Republican told CQ Roll Call. “It means you’d have to stop the trial and it’d be a disaster for the country, and I don’t want any other House to ever do this again. So, if you really want a witness and they’re available to you, take the time to do it over there.”
Delaware Democratic Sen. Chris Coons said the question of seeking a legal remedy to get testimony from current and former White House officials would be “a judgment call for the House managers.”
“Executive privilege is not a ‘get out of testifying for free’ card. You can’t use executive privilege to shield evidence of misconduct, and frankly, if President Trump wants to have a real defense in front of the Senate, he should consent to Bolton testifying,” Coons said.
Senate Minority Leader Charles E. Schumer, asked Friday morning if Democrats would be willing to narrow some of their subpoenas to try to skirt any claims of executive privilege, said that’s “jumping the gun” when Republicans haven’t even said “yes” to the question of subpoenaing witnesses and documents.
“We believe we need to get a full and fair trial at such a solemn and serious trial — at minimum the four witnesses we asked for and the four sets of documents we’ve asked for,” said Schumer, a New York Democrat.
Sen. Richard Blumenthal dismissed the idea that there could be an extended court process over Bolton’s potential testimony. He said the issues are being addressed in litigation over a subpoena the House Judiciary Committee issued for testimony from former White House Counsel Don McGahn about what he told investigators in former Special Counsel Robert S. Mueller III’s probe into potential obstruction of justice by Trump.
“There should be no protracted legal battle. The issue of executive privilege has already been decided in the McGahn case. The president is not a king or a monarch. He can’t just assert broad executive privilege of blanket immunity,” the Democrat from Connecticut told reporters. “The president can do a lot more illegality, but I think the courts will reject that position very quickly.”
District Judge Ketanji Brown Jackson sided with the House, but it is now being reviewed by the U.S. Court of Appeals for the D.C. Circuit.
House Counsel Douglas Letter wrote to the appeals court Thursday night, arguing that the statements by the president’s legal team in the impeachment trial undermined the Justice Department’s official position that the courts weren’t the appropriate venue for deciding such a dispute.
“In light of President Trump’s argument, it is not clear whether DOJ still maintains its position that courts are barred from considering subpoena-enforcement suits brought by the House. At the very least, President Trump’s recognition that courts should resolve such suits undermines DOJ’s contrary threshold arguments in this case, which seek to prevent the House and its committees from seeking judicial resolution of subpoena-enforcement disputes. The Executive Branch cannot have it both ways.”
The Justice Department responded on Friday.
“The impeachment trial statements excerpted by the Committee were simply expounding on the President’s position that the House cannot have it both ways; they plainly were not reversing the position that the House may not properly seek judicial enforcement of subpoenas against the Executive,” wrote Deputy Assistant Attorney General Hashim Mooppan.
Lead House impeachment manager Adam B. Schiff, addressing GOP arguments about executive privilege, said, “Unlike in the House, where the president could play rope-a-dope in the courts for years, that is not an option for the president’s team here.”
The California Democrat told reporters that Chief Justice John G. Roberts Jr., who is presiding over the trial, could make decisions on privilege claims.
“We have a very capable justice, sitting in that Senate chamber, empowered by the Senate rules to decide issues of evidence and privilege,” Schiff said.
While the Senate can override any ruling from the justice, Trump and Republicans fear Roberts “will in fact apply executive privilege to that very narrow category where it may apply,” Schiff said.
“Executive privilege isn’t automatic. The president has to assert it,” Sen. Angus King, I-Maine, said Thursday night. “You can’t say a memo from OMB to the Department of Defense is executive privilege, and you also can’t assert executive privilege to cover up your own wrongdoing.”
Sen. John Hoeven of North Dakota is among the Republicans who doubt that legal arguments would be swift.
“They keep making the case that … we subpoena more witnesses right away and do all that. Well, the question is why didn’t the House do that because we’re going to have to do that,” Hoeven said. “We could subpoena somebody, the White House would say, ‘OK, executive privilege,’ then you have to go to the court.”
Hoeven also said he has asked but not gotten clear answers about what happens in the event there is a need to go to court, noting that the regular order would restrict the Senate from doing other business without an agreement.
“Do we recess then, or what do we do?” Hoeven asked.
Sen. Elizabeth Warren of Massachusetts, one of the Democrats running for president, said in response to a question about the possibility of a court battle about executive privilege claims by Trump that the Senate should do what’s needed, even if it prolongs the trial.
“We have to have a fair trial. That’s what the Constitution requires,” Warren told CQ Roll Call. “And if the president of the United States can throw up roadblocks, including roadblocks that may have no basis in law, and as a result the Senate just backs off and says, ‘Well, I guess that’s hard, so we’re going to pack our bags and go home,’ then the whole notion of how impeachment works as a check on the president is completely lost.”
Lindsey McPherson contributed to this report.