Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
In the days following National Security Advisor John Bolton’s seismic announcement that he would testify if subpoenaed by the Senate, President Donald Trump went through a range of reactions. At first, Trump punted the issue to “the lawyers” and the Senate, while claiming Bolton “would know nothing about what we’re talking about” anyway.
Trump later took a different tack, promising to go to court and invoke executive privilege to prevent Bolton’s testimony. But, don’t worry, Trump assured us: he would try to block Bolton’s testimony only out of a benevolent desire to protect future presidents. Trump claimed he “would have no problem” with Bolton testifying but felt compelled to stop it because “we have to protect presidential privilege” and “I think you have to for the sake of the office.”
Don’t believe it for even half a second. Trump will try to block Bolton’s testimony not to protect future presidents, or the office of the presidency, or any principle or institution or person – but to protect no one other than Donald J. Trump himself.
Give Trump credit for at least this much: executive privilege actually exists in the law, unlike the bogus concept of “absolute immunity” that his team conjured up to try to block all executive branch employees from testifying in the House. (A federal judge forcefully rejected that claim as a “fiction” that gets separation of powers “exactly backwards”).
The law surrounding executive privilege is complex, and its application to Bolton is a close call. The Supreme Court in the case involving President Richard Nixon’s White House tapes recognized the privilege but determined that it applied only to a narrow class of communications between a president and his close advisers. According to the Supreme Court, executive privilege is not a general shield to hide impropriety but rather primarily “protect[s] military, diplomatic or sensitive national security secrets.” Depending on the specific nature of Trump’s conversations with Bolton about the hold on foreign aid to Ukraine, the privilege might or might not apply.
There also is a compelling argument that executive privilege does not apply at all in the context of impeachment. No court has yet decided the issue. (The Nixon opinion came down in the context of a criminal grand jury subpoena, not a formal Congressional impeachment proceeding.) But there is historical precedent for the argument that an impeachment inquiry necessarily must penetrate into the inner workings of the President and his staff, given that impeachment is necessary to ensure Constitutional balance of powers. Essentially, the argument goes, the need for sensitive information outweighs the need for secrecy, given the stakes.
But here’s the problem with Trump’s claim that he would try to block Bolton only to protect presidential privilege. If Trump truly wanted the Senate and the public to hear from Bolton, he could waive any executive privilege claim without creating any binding or harmful precedent. In other words, Trump could simply say, “There might be an executive privilege claim here, but I’m willing to give it up and let Bolton testify.”
That position would have no binding effect on future presidents, who would remain entirely free to choose to invoke the privilege (or waive it) at their own discretion. The fact that a prior president chose to waive the privilege would in no way bind future presidents to do the same. On the flip side, claiming executive privilege and losing in court – as Trump might well end up doing here with Bolton – would actually impair the privilege for future presidents.
Don’t buy Trump’s spin. He’s not looking out for the welfare of the office he holds or the sanctity of the doctrine of executive privilege. He wants to block Bolton’s testimony to save his own skin.
Now, your questions:
Mika (Colorado): Why are there no standard rules and processes in place for impeachment? It seems like we are starting from scratch.
It’s not quite accurate to say there are no standard rules and processes in place for impeachment but, indeed, the existing legal guidance leaves much to improvisation.
The Constitution is, of course, the necessary starting point. While the Constitution establishes the mechanism of impeachment, it tells us little about how the process should work. Essentially all the Constitution specifies is that impeachment is appropriate for “treason, bribery, or other high crimes and misdemeanors”; the House has “sole power of impeachment”; the Senate has “sole power to try all impeachments”; the Chief Justice of the Supreme Court presides over any presidential impeachment trial; a two-thirds’ vote of the Senate is necessary to convict; and conviction results in “removal from office, and disqualification to hold and enjoy any office.” These are important guideposts, but the Constitution does not specify further procedures.
The Senate has a set of internal rules for impeachment trials. Adopted in 1868 and revised most recently in 1986, they provide guidance on some (but not all) issues. For example, the Senate rules set a schedule (requiring that trial start at 1:00 p.m. on a Monday through Saturday); permit the parties to appoint counsel to represent them; give the Senate the power to issue subpoenas compelling witness testimony and production of other evidence; and permit witnesses to be examined and cross-examined.
Finally, precedent matters. But, of course, we only have two prior presidential impeachment trials to draw upon: Andrew Johnson in 1868 and Bill Clinton in 1999. While those prior proceedings can provide useful guidance, they are not binding in the way that a Supreme Court decision is binding on other courts. While courts must follow prior Supreme Court decisions, there is no legal requirement that the Senate follow procedures adopted in previous impeachment trials.
All of this makes for a dynamic situation, particularly on the question whether the Senate will call witnesses at trial, and who ultimately decides. Much will come down to the will of the majority. Given that Republicans currently hold 53 of the 100 Senate seats, the question will be whether that Republican majority holds, or whether four (or more) Republican Senators join with Democrats on this and other key votes.
Randy (FL): Does the Constitution require that the Senate wait until the House physically “delivers” articles of impeachment before holding a trial?
The Constitution grants the “sole power of impeachment” to the House and the “sole power to try all impeachments” to the Senate. But the Constitution says nothing about the House “delivering” or formally transmitting articles of impeachment to the Senate. There is an argument that the Senate – holding the “sole power to try all impeachments” – does not need approval or permission from the House, or any other entity, to start an impeachment trial.
The Constitution does require formal transmission of a document, in certain scenarios. For example, the Constitution specifies that, once a bill has been passed by the House and Senate, it must be “presented” to the president. And the Constitution requires that after a presidential election, each state must formally “transmit” to the Senate a list of its electors and the names of the candidate they have voted for. Thus, the argument goes, when the Constitution requires that something be formally transmitted or sent within the government, it says so – and it says nothing about formal transmission of articles of impeachment.
The Senate’s internal rules for impeachment trials provide that “[w]hensoever the Senate shall receive notice from the House of Representatives that managers are appointed on their part to conduct an impeachment against any person and are directed to carry articles of impeachment to the Senate,” then the Senate may begin the trial. The rules also specify that trial can begin “upon such articles [of impeachment] being presented to the Senate.”
The Senate can, however, amend its own rules. Ordinarily, the Senate would need a ⅔ supermajority to do so, but there is a procedural mechanism by which a simple majority vote could suffice. If McConnell makes use of the latter avenue, then Senate Republicans could amend the Senate rule requiring the House to formally send articles of impeachment before trial can begin.
Unger (TX): If Trump is removed from office and Pence becomes President, would that count against Pence’s two-term limit?
The 22nd Amendment to the Constitution – ratified in 1951, after President Franklin Delano Roosevelt won election for a third and fourth time (in 1940 and 1944, respectively) – established the now-familiar two-term limit on the presidency.
The Amendment provides that ” [n]o person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.” In other words, it only counts as a “term” if the person serves more than two years as president.
If Trump were removed from office now, Pence would serve about one year before the next swearing-in in January 2021 (following the November 2020 election). So this abbreviated term would not count as one of Pence’s two terms permitted by the Constitution.
Three questions to watch:
1. Will Speaker Pelosi formally submit the articles of impeachment to the Senate, and will the trial start this week?
3. Will John Bolton tell us what he knows?