Donald Trump, Mitch McConnell, and a majority of Republican
senators understand a fundamental truth about managing a cover-up: It is
essential to keep the lid on and tightly sealed. The instant the seal breaks,
all bets are off. This is a fundamental truth that many Democrats and pundits
were slow to realize in resisting the inexorable march to impeachment. Those
who argued that impeachment was pointless or worse because the Senate would
never convict did not take into account the uncertain course of any investigation.
It is a process. Things happen along the way. Witnesses and evidence emerge. The
investigation of a petty break-in brought down a president. The investigation
of a land deal in Arkansas ended with a President impeached for lying about sex
in the White House.
The Trump impeachment has now reached the point at which a
limited breach of the cover-up seal — calling a witness, producing some
documents — could unleash unforeseeable consequences. If John Bolton testifies,
the ground will shift under Republican senators. It will be difficult to resist
calling more witnesses who will be identified by Bolton as having been in the
room at one time or another and to produce the extensive record of supporting
notes and electronic communications.
Trump knows this better than most. His career has been built
on fraud and its no-holds barred concealment. He founded a fraudulent
university and operated a charitable foundation for his own enrichment,
misstated the value of his holdings for purposes of taxes and borrowing, and
concealed adultery and sexual misconduct. His operating principle has been to
admit no wrongdoing and fight every disclosure.
Mitch McConnell has proven himself to be a peerless enabler
of Trump’s conduct, willing to use his mastery of the Senate to prevent
disclosure of damning information. His success depends on instilling sufficient
fear of losing control of the trial to convince 51 of his Senate colleagues to keep
the lid tight on the cover-up tight.
The leaks from John Bolton’s manuscript have strengthened an
already overwhelming case for hearing witnesses who can testify to their direct
conversations with the president regarding his withholding of military aid to
Ukraine in exchange for political favors. Polling shows that three-quarters of
the public wants witnesses.
In their desperation, Republican senators are reaching for a
lifeline that avoids the need for witnesses. It was extended with academic
window dressing by Alan Dershowitz, emeritus Harvard Law School professor and
lawyer to celebrities. It holds in simple form that the articles of impeachment
do not state constitutionally sufficient impeachable conduct because they do
not allege criminal conduct.
That position has been crushed by the overwhelming weight of
constitutional experts, but it’s good enough for desperate senators. Now, they
can say — with the backing of Trump’s legal team — that they don’t need more
evidence because even if Trump did everything the House alleges, the conduct
does not rise to the level of an impeachable offense.
This defense has been available all along. Senators have
been free to conclude — as a largely political matter — that the president’s
conduct was not impeachable, but they can now do so with the thin veneer of
constitutional argument provided by Dershowitz.
Previously, Trump’s defenders were reluctant to take this
course because it contains an implicit admission — anathema to Trump — that his
underlying conduct might not be perfect, but merely unimpeachable. The strength
of the case for witnesses, as expressed in public opinion, has moved some of them
to embrace it.
As a final tactic to keep Republican senators in line, Trump
has ignored his previous statements supporting testimony by his advisors and
threatened to invoke executive privilege to block Bolton’s testimony. That’s a
hollow threat for at least five reasons if Bolton wants to testify and senators
decide they want to hear his testimony:
- Executive privilege, which shields some communications between a president and his advisors, yields to a compelling need for the information. In U.S. v. Nixon, the Court held that executive privilege could not prevent production of Watergate tapes demanded through a criminal trial subpoena. An impeachment subpoena is even more compelling.
- Trump has waived the privilege regarding his conversations with Bolton. Trump’s avalanche of tweets and his statements over the din of his departing helicopter went a long way toward waiving confidentiality. He swept away any remaining hint of privilege with a tweet thread including: “I NEVER told John Bolton that the aid to Ukraine was tied to investigations into Democrats, including the Bidens. In fact, he never complained about this at the time of his very public termination.” By describing the content of his conversations with Bolton, he waived any objection to Bolton’s testimony.
- Executive privilege cannot block a willing witness, especially a private citizen, from speaking. The privilege is invoked to prevent a reluctant witness from testifying. The penalties for a government official’s defiance of the president might be firing, but there is no remedy against a private citizen.
- Executive privilege cannot be used to conceal evidence of criminal conduct. If Trump were to go to court to invoke the privilege, he would open his Ukraine conduct to examination for criminality by the court.
- Even if Trump went to court to try to block Bolton’s testimony, he would face a substantial hurdle in getting a court to consider the merits. The Supreme Court rejected Judge Walter Nixon’s request for court review of the Senate’s procedures in his impeachment trial. The Court held that the Constitution’s clear assignment of the power to try impeachments to the Senate made Nixon’s grievance a political question that a court could not decide. There is no reason to think Trump would fare better.
Most recently, the
administration informed Bolton that his manuscript contains significant
classified material and warned him not to publish it until the material was
removed. It strains credulity that an author as savvy and experienced as Bolton
would include significant classified material in his manuscript, raising the
suspicion that the White House will engage in further obstruction by
over-classifying material in the manuscript to delay or prevent its
publication.
Bolton is eager to appear in the Senate and offer compelling testimony. He is not the only witness with first-hand knowledge of Trump’s Ukraine activity and should not be the sole witness. Trump, McConnell, and Trump’s Senate supporters, however, know that allowing a single witness would blow the tight seal on the cover-up protecting Trump. The coming days will test the strength of that seal.
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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.