Even though President Trump now says he will invoke executive privilege to forbid former national security adviser John Bolton from testifying in Trump’s Senate trial, it should be seen as a fruitless gesture. The president has no real way to punish a former aide who chooses to testify, and courts would be unlikely to uphold any penalty he attempts to impose.
Courts repeatedly have done more to limit than to uphold claims of privilege from testimony, especially in the impeachment context. Impeachment and a Senate trial are both constitutionally prescribed actions, the latter being in many ways the rough equivalent of a criminal trial. The caveat is that because the president otherwise enjoys so much power, along with various immunities, an impeachment trial is an action of last resort that amounts to the people’s ultimate check on any presidential abuse of power.
Except regarding something as nearly sacrosanct as attorney-client privilege, the president’s prerogatives in a Senate trial are rather weak and must bow to the people’s right to know.
Indeed, those aides or former aides caught in the crossfire are far more likely to face legal sanction if they defy a congressional subpoena than if they defy a presidential claim of privilege. The main enforcement mechanism in the president’s hands is the ability to fire an aide, but, of course, that power is immaterial in cases of people who already have left the administration’s employ.
The president’s inability to penalize those who choose to testify was shown during the House impeachment proceedings, when even people who remained a part of the Trump administration, such as Ambassadors Bill Taylor and Gordon Sondland, testified despite the administration’s desire to the contrary.
Senate rules, meanwhile, say that the Senate can “compel” testimony. That means that, unless a court actively intervenes—a most unlikely circumstance—those who are subpoenaed risk criminal contempt of Congress convictions if they refuse to cooperate.
All of which means that if Bolton, upon the advice of his lawyer, decides he should testify, there is almost nothing Trump can do to stop him.
This is as it should be. No trial should occur without hearing from the key first-hand witnesses to the actions in question.
If Trump is innocent of wrongdoing, he should have nothing to fear from Bolton’s testimony, anyway. It’s time to stop all the maneuvering and let the public know the full truth.