Trump's Defense: Calling Bolton As a Witness Would 'Forever' Weaken the Executive Branch

By Susan Jones | January 30, 2020 | 7:40am EST
Democrats want former National Security Advisor John Bolton to testify against President Trump, but defense lawyers say that would set a dangerous precedent. (Photo by NICHOLAS KAMM/AFP via Getty Images)
Democrats want former National Security Advisor John Bolton to testify against President Trump, but defense lawyers say that would set a dangerous precedent. (Photo by NICHOLAS KAMM/AFP via Getty Images)

(CNSNews.com) - In response to a question asked by Sen. John Cornyn, a Texas Republican, President Trump's defense team on Wednesday explained why former National Security Adviser John Bolton should not be called as a witness in the Senate impeachment trial.

As Deputy White House Counsel Patrick Philbin explained, “The Supreme Court has recognized that the confidentiality of communications with the president is essential, keeping those conversations confidential, is essential for the proper functioning of government.”

And so, to suggest that the National Security Advisor, well, we'll just subpoena him -- he'll come in and that will be easy, there won't be any problem -- that's not the way it would work, because there is a vital constitutional privilege at stake there.

And it's important for the institution of the office of the presidency for every president to protect that privilege. Because once precedents start to be set -- if one president says, well, I won't insist on the privilege then, I'll let people interview this person; I won't insist on immunity -- that sets precedent.

And then the next time when it's important to preserve the privilege, the precedent is raised and the privilege has been weakened, and it's forever weakened, and that damages the functioning of government.

Here is Philbin’s full defense of executive privilege:

The Supreme Court has recognized that the confidentiality of communications with the president is essential, keeping those conversations confidential, is essential for the proper functioning of government.

In Nixon vs. United States, the court explained that this privilege is grounded in the separation of powers and essential for the functioning of the executive, for this reason: In order to receive candid advice, the president has to be able to be sure that those who are speaking with him have the confidence that what they say is not going to be revealed. That their advice can remain confidential.

If it's not confidential, they would temper what they're saying. They wouldn't be candid with the president. And the president then would not be able to get the best advice.

And it's the same concern that underpins the deliberative process aspect of executive privilege. Even if it's not a communication directly with the president -- if it's the deliberative process within the Executive Branch, people have to be able before coming up with a decision to discuss alternatives, to probe what other ways might work to address a problem and to discuss them candidly and openly, not with the feeling that the first thing they say is going to be on the front page of the Washington Post the next day.

Because if you don't have the confidence that what you're saying is going to be kept confidential, you won't be candid, you won't give your best advice. And that damages decision-making, and that's bad for the government, and it's bad for the people of the United States, because it means the government, the Executive Branch, can't function efficiently. So there is a critical need for the Executive to be able to have these privileges and to protect them.

And that's why the Supreme Court recognized that in Nixon versus United States and pointed out that there has to be some very high showing from another branch of government if there's going to be any breach of that privilege. And that's why there is an accommodations process, why the courts have said that when the Congress, when the Legislature, seeks information from the Executive, and the Executive has confidentiality interest, both branches are under an obligation to try to come to some accommodation to address the interests of both branches.

But it's not a situation of simply, the Congress is supreme and can demand information from the Executive, and the Executive must present everything. And the courts have made that clear, because that would be damaging to the functioning of government.

And so here, in this case, there are vital interests at stake.

And, you know, one of the potential witnesses that the House managers have raised again and again is John Bolton. John Bolton was the National Security Advisor to the president. He has all of the nation's secrets from the time that he was the National Security Advisor, and that's precisely the area, the field, in which the Supreme Court suggested in Nixon versus United States there might be something approaching an absolute privilege of confidentiality in communications with the president. The field of national security and foreign affairs as the crown jewels of executive privilege.

And so, to suggest that the National Security Advisor, well, we'll just subpoena him -- he'll come in and that will be easy, there won't be any problem -- that's not the way it would work, because there is a vital constitutional privilege at stake there.

And it's important for the institution of the office of the presidency for every president to protect that privilege. Because once precedents start to be set -- if one president says, well, I won't insist on the privilege then, I'll let people interview this person; I won't insist on immunity -- that sets precedent and then the next time when it's important to preserve the privilege, the precedent is raised and the privilege has been weakened and it's forever weakened, and that damages the functioning of government.

So this is a very serious issue to consider.

It's important, the Supreme Court has made clear, for the proper functioning of the Executive Branch, for the proper functioning of our government. And there would be grave issues raised attempting to have a national security advisor for the president come under subpoena to testify. And that all has to be dealt with, and that would take some time before things would continue.





 

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