WASHINGTON - Republican senators allied with President Donald Trump are increasingly arguing that the Senate should not call witnesses or subpoena documents for his impeachment trial because Trump has threatened to invoke executive privilege, and a legal fight would take too long to resolve.
But it is far from clear that Trump has the power to gag or delay a witness who is willing to comply with a subpoena and tell the Senate what he knows about the president's interactions with Ukraine anyway - as Trump's former national security adviser John R. Bolton has said he would do.
Here is an explanation of executive privilege legal issues.
What is executive privilege?
It is a power that presidents can sometimes use to keep information secret.
The Supreme Court has ruled that the Constitution implicitly gives presidents the authority to keep internal communications, especially those involving their close White House aides, secret under certain circumstances. The idea is that if officials fear that Congress might someday gain access to their private communications, it would chill the candor of the advice presidents receive and inhibit their ability to carry out their constitutionally assigned duties.
Can invoking executive privilege block a willing witness?
Not by itself.
The privilege has traditionally been wielded as a shield, not a sword. It has no built-in enforcement mechanism to prevent a former official from complying with a subpoena in defiance of a president's orders, or to punish one afterward for having done so.
Bolton, one of the four current and former officials whom Democrats want to call as a witness, has said that he will show up to testify if the Senate subpoenas him for the impeachment trial, even though the White House has told him not to disclose what he knows about Trump's private statements and actions toward Ukraine.
What can executive privilege do?
A valid assertion of the privilege would protect a current or former official who chooses not to comply with a subpoena.
Three other officials Democrats want to call as witnesses - Trump's acting chief of staff, Mick Mulvaney; a top national-security aide to Mulvaney, Robert Blair; and Michael Duffey, an official in the White House budget office who handled the military aid to Ukraine - are expected to resist appearing if subpoenaed.
Normally it is a crime to defy a subpoena, but the Justice Department will decline to prosecute a recalcitrant official if the president invokes the privilege. Congress can also sue that official seeking a court order, but the department, defending that official, will cite the privilege to argue that case should be dismissed - and as grounds to appeal any ruling that the subpoena is nevertheless valid, keeping the case going.
The Trump administration has broadly pursued a strategy of fighting House oversight and impeachment subpoenas, resulting in a string of lower-court losses that have nevertheless succeeded in running down the clock. Senate Republicans have argued that any effort to enforce impeachment subpoenas could result in a long and drawn-out judicial battle as a reason for the moderate members of their caucus not to break ranks and join Democrats in voting to subpoena witnesses and documents.
What if Chief Justice John Roberts rules that the privilege is not valid?
Rep. Adam Schiff, the California Democrat who is leading the House impeachment managers, has proposed that the Supreme Court Chief Justice, John Roberts, who is presiding over the trial, could swiftly rule on the validity of any executive privilege claim. The trial has "a perfectly good judge sitting behind me," Schiff said.
But Roberts does not embody and is not functioning as the Supreme Court. Several legal experts said that even if he were to rule that any invocation of the privilege is not valid, a subpoena recipient could ignore him and continue to defer to the president.
Then the Senate would likely still have to go through the normal court process to seek a judicial order to hear from the witness.
Could Trump go to court to block Bolton from talking?
The administration could try, but it would face serious hurdles.
In theory, the Justice Department could file a lawsuit and ask a judge to issue a restraining order barring Bolton from testifying on the grounds that he might divulge information that is subject to executive privilege. But the government has never tried to do that.
Even if a judge agreed that the information the Senate would be seeking is covered by a valid claim of executive privilege, it is not clear that any judge or higher court would issue a restraining order. Under a constitutional doctrine called prior restraint, the First Amendment severely limits the ability of the government to gag speech before its expression.
"A restraining order is unlikely because it would be unprecedented, a threat to First Amendment values, and - in this context - a threat to fundamental checks and balances," said Peter Shane, an Ohio State University professor and the co-author of a casebook on separation-of-powers law.
What information does the privilege cover?
It's fuzzy. The scope and limits of the president's power to keep internal executive branch information secret are ill-defined because in practice, administration officials and lawmakers have typically resolved executive privilege disputes through deals to accommodate investigators' needs to avoid definitive judicial rulings.
In a 1974 Supreme Court case about whether President Richard M. Nixon had to turn over tapes of his Oval Office conversations to the Watergate prosecutor, the court ruled that executive privilege can be overcome if the information is needed for a criminal case. Nixon resigned 16 days later.
The Supreme Court in the Nixon case noted several times that the information sought did not involve presidential discussions about diplomatic or military matters, so the Justice Department might argue that the Watergate precedent does not cover Trump's internal communications about military aid to Ukraine.
Nevertheless, the courts would most likely use a balancing test, weighing the presidency's need for private internal deliberations against Congress' need for the specific information to investigate possible high-level wrongdoing, said Mark J. Rozell, a George Mason University professor who has written books about executive privilege.
Noting the Nixon-era precedent, he said he doubted that a claim of executive privilege would be upheld in the context of impeachment because "the courts don't give all that much deference to claims of presidential secrecy in cases of alleged wrongdoing."
Is privilege the same thing as 'absolute immunity'?
In a related legal dispute, the Trump administration has argued that White House officials are "absolutely immune" from being compelled to respond to a subpoena when Congress is seeking information about their official duties.
If that were true, it would mean they did not even have to show up, separate and apart from whether they can lawfully decline to answer a particular question in deference to a president's claim that the answer is covered by executive privilege.
Late last year, a U.S. District Court judge rejected that theory in a case involving a congressional subpoena to Trump's former White House counsel, Donald McGahn. But McGahn does not want to cooperate and has permitted the Justice Department to file an appeal on his behalf, and the litigation is continuing.
This article originally appeared in The New York Times.
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