Former National Security Advisor John Bolton announced he would comply with a hypothetical subpoena were the U.S. Senate to issue such a demand for testimony in the eventual impeachment trial of President Donald Trump. Observers were immediately skeptical of the infamous war hawk’s allegedly newfound transparency.
Bolton issued the following terse statement Monday morning:
The House has concluded its Constitutional responsibility by adopting Articles of Impeachment related to the Ukraine matter. It now falls to the Senate to fulfill its Constitutional obligation to try impeachments, and it does not appear possible that a final judicial resolution of the still-unanswered Constitutional questions can be obtained before the Senate acts.
Accordingly, since my testimony is once again at issue, I have had to resolve the serious competing issues as best I could, based on careful consideration and study. I have concluded that, if the Senate issues a subpoena for my testimony, I am prepared to testify.
New York Times reporter Charlie Savage credulously took Bolton at his word–asserting that the former White House advisor was telegraphing his intent to testify “without waiting for a judicial ruling” and saying the upshot here is that this “means it’s real this time.”
Legal experts quickly pushed back against this interpretation.
“Could [the White House] sue Bolton to enjoin his testimony?” asked University of Iowa Law Professor Andy Grewal–noting that his question was serious because he had “no idea” what the answer was.
“I think POTUS could file a motion to quash the subpoena,” offered CNN legal analyst, attorney and impeachment expert Ross Garber. “But a motion to quash, even if successful, would not PREVENT Bolton from testifying.”
Garber’s point is salient here because Bolton previously shielded himself from testifying in the House’s impeachment inquiry by using the excuse that there were extant and unresolved separation of powers issues–as enumerated in the House’s now-moot legal battle with Bolton’s former aide Charles Kupperman.
U.S. District Judge Richard Leon dismissed Kupperman’s lawsuit after House Democrats withdrew their subpoena for his testimony in the aftermath of the 45th president’s impeachment.
Bolton’s public invitation for Republicans in the Senate to subpoena him–itself a decidedly dicey proposition–also offers the White House an attempt to file suit in an effort to bar his theoretical testimony. As with the House’s request, Bolton might be more than content to let the legal process play out. Nothing in his Monday statement suggests the opposite–despite media efforts to read into that message.
Journalist Todd Ruger sought to clarify the legal landscape were the White House move to directly block Bolton from testifying.
“So then the subpoena fight skips all the lower court action, and instead it goes to [Chief Justice John] Roberts to decide while presiding over impeachment trial?” he asked. “Or would that motion go to a vote, and if so, seems the same majority who issued the subpoena would deny [the president’s] motion?”
Garber responded with a series of potential outcomes:
Depends on the rules the Senate adopts. The Senate could vote to issue the subpoena. The subpoena could then be subject to a court action by Bolton or [the president] to quash or by the Senate to enforce. Or the rules could allow litigation of the subpoena before the Senate first.
“[The] Chief Justice would just be the presiding officer of the Senate,” Garber clarified in a separate tweet. “No shortcut to avoid courts.”
Ruger registered an askance view of the “game changer” viz. Bolton:
If that’s the case, then Bolton’s announcement doesn’t mean much because the administration could litigate it. Really then, a subpoena to Bolton would actually open the door to delaying the Senate trial while it goes through the (lengthy) court process…
Such a process could indeed stretch out for quite some time. Under the circumstances, however, there would be substantial public pressure for the federal legal system to speed things up several notches and dispense with the issue in a matter of weeks.
Garber later offered a hypothetical situation to deal with the hypothetical issuance of a Senate subpoena for Bolton’s testimony.
“Let’s say Senate subpoenaed Bolton and Bolton showed,” Garber wrote. “Then there could be question-by-question objections by Trump’s lawyers based on [executive privilege]. The Chief Justice could decide these issues (subject to being overruled by Senate) or he could just have Senate vote on objections.”
“In other words, [Chief Justice] Roberts could quickly and unilaterally decide on scope and extent of executive privilege,” Garber concluded. “And unless the Senate wished to overrule him (unlikely), his word would be the final word. Could have big implications for future of Congressional subpoenas and [executive privilege].”
Thoroughly in the realm of What If…?, former Obama Department of Justice official Eric Columbus chimed in with his own take offering a dose of reality should such a nesting doll hypothetical unfold.
“The last sentence is a reason why Roberts is unlikely to do that,” Columbus said, an apparent allusion to Roberts’ stated–and increasingly futile–desire to retain norms and maintain the legitimacy of the nation’s high court as an institution insulated from politics.
[image via Win McNamee/Getty Images]