If a majority of the U.S. Senate wants to hear testimony from former national security adviser John Bolton, then the only way that it can be denied is if the Senate emasculates itself.
Bolton has said he is a willing witness if under subpoena. So there is little that President Trump can do to stop him. What is the president going to do — order Bolton’s arrest? No court in the land would uphold such an arrest.
It is spurious to say that the Senate is in the same position the House was in when it declined to subpoena Bolton because it feared a long court battle. Bolton, at the time, was not a willing witness. As such, he had potentially justiciable rights independent from those of the president himself. Those rights, in conjunction with an executive privilege claim, would take far longer to adjudicate than a privilege claim alone.
Plus, the House arguably does not enjoy the same presumption of plenary power while seeking an impeachment that the Senate does in trying an already impeached official. As Chief Justice William Rehnquist ruled during the Senate trial of President Bill Clinton, “The Senate is not simply a jury — it is court in this case.” As such, it has powers to pierce any “executive privilege” claims that are directly analogous to those applicable when a unanimous Supreme Court ruled in United States v. Nixon that President Richard Nixon must turn over his White House audiotapes in a court proceeding. Since then, courts have repeatedly narrowed but never expanded the scope of executive privilege.
The Senate’s constitutionally specified “sole power to try all impeachments” makes its own rules presumptively valid. Standing Senate rules on impeachment, in place since 1986 and still controlling unless overruled by a majority of the Senate itself, say that “the Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writes, precepts and judgments, and to punish in a summary way” all violations thereof.
Trump’s Senate allies have been peddling the notion that it would take “weeks, if not months” for executive privilege to be fought out in the courts. This is tommyrot. If Bolton is willing to testify, the president would need to seek a court order to bar him. If a court granted such an order, the Senate could ask the Supreme Court for expedited appeal or even a writ of mandamus (or a near-equivalent) to compel testimony. Absent some extraordinarily compelling new argument or claim from Trump’s team, the Supreme Court could, and likely would, rule relatively quickly on whether Trump has any enforcement power over Bolton.
In the Nixon tapes case, the Supreme Court ruled against the president in only 16 days. It did so even without conclusive precedent to guide it. Today’s Supreme Court enjoys the unanimous precedent of United States v. Nixon, plus all the subsequent cases further limiting executive privilege. It could quickly decide to lift any lower-court order restricting Bolton’s testimony.
If, and only if, it does not lift the order, but instead calls for full briefing and oral argument on the merits, then and only then would the Senate face the prospect of months of delay. If it decides the delay isn’t worth it, it could withdraw its subpoena. But to refuse to issue one in the first place, because of the mere threat of court action, would be for the Senate to limit its own powers, providing a boost to unfettered imperial executive power that the courts have never yet afforded the president.
In sum, if a majority of the Senate really wants to hear Bolton’s first-hand testimony, it almost certainly can do so, and within a reasonable time period. The only thing stopping it would be an unwillingness to assert its own constitutional authority. A Senate that does so, without a whimper, would make itself a constitutional eunuch.
