Trump’s Expansive Executive Privilege Claims Pose Serious Constitutional Crisis

AMY GOODMAN: We’re broadcasting from Park City, Utah. “The president has done nothing wrong.” That was the message President Trump’s lawyers repeatedly voiced during eight hours of oral arguments at the president’s impeachment trial in the Senate Monday. But Trump’s legal team largely ignored the explosive revelations made by Trump’s former national security adviser John Bolton. On Sunday night, The New York Times published details about a draft of Bolton’s forthcoming book, where he claims President Trump personally told him in August he wanted to maintain a freeze on $391 million in military aid to Ukraine until Ukraine turned over materials related to former Vice President Joe Biden and supporters of Hillary Clinton in Ukraine. Biden is Trump’s political rival for president. Bolton sent a copy of the manuscript to the White House December 30th for review. The withholding of congressionally approved military aid to Ukraine is at the center of the impeachment trial. On Monday, Republican Senators Susan Collins of Maine and Mitt Romney of Utah said the Bolton revelations underscore their case for allowing witnesses to testify.

SEN. MITT ROMNEY: I think it’s important to be able to hear from John Bolton for us to be able to make an impartial judgment.

AMY GOODMAN: On Monday, the president’s legal case was made by a team of lawyers, including retired Harvard University law professor Alan Dershowitz and former independent counsel Kenneth Starr, whose probe led to the impeachment of Bill Clinton. During oral arguments, Starr referenced the Clinton impeachment trial.

KEN STARR: The nation’s most recent experience, the Clinton impeachment, even though severely and roundly criticized, charged crimes. These were crimes proven, and the crucible of the House of Representatives’ debate, beyond any reasonable observer’s doubt. So, too, the Nixon impeachment. The articles charged crimes. … Were crimes alleged in the articles in the common law of presidential impeachment? In Nixon, yes. In Clinton, yes. Here, no.

AMY GOODMAN: President Trump’s personal lawyer Jay Sekulow accused Democrats of lowering the bar for impeachment.

JAY SEKULOW: We live in a constitutional republic where you have deep policy concerns and deep differences. That should not be the basis of an impeachment. If the bar of impeachment has now reached that level, then, for the sake of the republic, the danger that puts not just this body but our entire constitutional framework in is unimaginable. Are we going to have, every time there’s a policy difference of significance or an approach difference of significance about a policy — we’re going to start an impeachment proceeding? You know, as I said earlier, I don’t really think this was about just a phone call. There was a pattern and practice of attempts over a three-year period to not only interfere with the president’s capability to govern, which, by the way, they were completely unsuccessful at — just look at the state of where we are as a country — but also interfere with our constitutional framework.

AMY GOODMAN: That’s Jay Sekulow. That’s President Trump’s personal lawyer, speaking on the Senate floor during Trump’s impeachment trial.

To talk more about the trial, we’re joined by Claire Finkelstein, professor of law and philosophy, and faculty director of the Center for Ethics and the Rule of Law at University of Pennsylvania, her recent piece for The New York Times headlined “This Question Is More Important Than Removing Trump: Can a sitting president block witnesses at his own impeachment trial?”

Well, Professor Finkelstein, let’s begin there, this issue of President Trump claiming executive privilege and the whole issue of witnesses.

CLAIRE FINKELSTEIN: Right. Well, so, this is what we’re facing right now. And as I wrote in The New York Times, it is even more important than removing the president to push back on the notion of executive privilege, which has become a broader and broader concept in recent years. When you see arguments that seem to have a veneer of credibility, enough so that the president’s legal team feels they can argue it with impunity, saying that the president actually has the right to block witnesses and refuse to turn over documents in his own impeachment trial, you know that that means that the Senate cannot serve as the check and balance that the Founders designed it to serve. And so, this is a moment of very serious constitutional crisis for our democracy, not because, or not only because, we have a president who is governing corruptly and who thinks he can do whatever he wants, but, most importantly, because we have a Senate that is unable to act to remove the president because they are unable to push back on the president’s own obstruction of the process involved in impeachment.

AMY GOODMAN: On Monday, deputy counsel to the president Patrick Philbin argued executive privilege is a constitutional principle grounded in the separation of powers and must be respected. This is what he said.

PATRICK PHILBIN: The second principle that the Trump administration asserted was that some of these subpoenas purported to require the president’s senior advisers, his close advisers, to testify. Following at least 50 years of precedent, the Department of Justice’s Office of Legal Counsel advised that three senior advisers to the president — the acting White House chief of staff, the legal adviser to the National Security Council and the deputy national security adviser — were absolutely immune from compelled congressional testimony. And based on that advice from the Office of Legal Counsel, the president directed those advisers not to testify. Administrations of both political parties have asserted this immunity since the 1970s. President Obama asserted it as to the director of Office of Political Strategy and Outreach. President George W. Bush asserted it as to his former counsel and to his White House chief of staff. President Clinton asserted it as to two of his counsels. President Reagan asserted it as to his counsel, Fred Fielding. And President Nixon asserted it. This is not something that was just made up recently. There is a decades-long history of the Department of Justice providing the opinion that senior advisers to the president are immune from compelled congressional testimony.

AMY GOODMAN: So, that’s Trump’s lawyer Patrick Philbin. Professor Finkelstein, your response?

CLAIRE FINKELSTEIN: This is a really important issue to deal with. There were a lot of points that were not worth dealing with among the Trump legal team, but this is an issue that is worth dealing with, because there is some truth to their argument that executive privilege has been used by other presidents consistently over time and has been expanding over time. But there was a lot of misleading argument regarding executive privilege in what Patrick Philbin said.

First of all, first and foremost in the history that he cited is that those presidents were not asserting executive privilege in the context of an impeachment. And it should be clear that executive privilege really has no role to play when the president himself is being investigated for misdeeds that could remove him from office. Now, the one exception to that is Nixon, who tried to assert executive privilege to withhold the tapes, but, in fact, the Supreme Court ruled in U.S. v. Nixon that he did not have the right to do that and that in fact he had to turn over the tapes. And so, we do not see executive privilege used in this kind of context to actually bar witnesses from coming to testify in a president’s impeachment.

There are other reasons why that is a misleading statement on Patrick Philbin’s part, which is that the Supreme Court has ruled on other occasions that executive privilege goes too far. And so, we see that this is an issue that needs sorting out rather urgently.

AMY GOODMAN: Trump has claimed that Bolton should not testify because he knows his views on different world leaders and could make trouble in the future for him for divulging those views. If you could respond to that? And then we’ll talk about Ken Starr.

CLAIRE FINKELSTEIN: Right. So, there, it is critical that national — the national security interest be protected. But beyond the mere restriction of classification, which would absolutely be respected in this instance, so there’s going to be no public testimony to classified information before the Senate — beyond protecting classification, it’s a pretty weak argument to suggest that if the president has been engaging in illicit deals and threatening other world leaders, like Zelensky, that that can remain private because otherwise it will damage, in a general sort of way, his relationships with other leaders. It’s a national security issue that the president thinks that he can strong-arm the president of another independent country into digging up dirt on a political rival. That is a national security issue, and Congress has every right to investigate that issue. It’s important that Bolton testify, because he really knows what the president did in that regard.

AMY GOODMAN: Professor Finkelstein, it’s amazing when you look at the chronology of what we now understand. The manuscript of Bolton’s book, you know, he has to get it approved before it is actually published. The manuscript was sent to the White House December 30th. President Trump then has Soleimani assassinated — I don’t know if there’s any connection — on January 3rd, a few days later. Bolton tweets, you know, that this was long in the works, or this is something they had worked on for a long time, leading some to wonder if Trump wasn’t throwing out a bone to Bolton because he knew exactly what he would say if he testified, because the information was in the book that the White House had. I want to turn to — and I want to get your comment on that, and then we’ll go to a next clip.

CLAIRE FINKELSTEIN: Well, the most amazing part of that whole revelation is the fact that Mitch McConnell was so taken aback and thrown off guard by it. That the White House could be in perfect coordination with Mitch McConnell, as McConnell claims, but not tell them that this book was out there and that in fact they had received it a month before shows that the coordination was not so perfect. About Soleimani, it’s very possible that the president was throwing a bone to John Bolton, but it’s also possible that there was a Wag the Dog scenario here and that the president, as he’s a master at doing, was trying to distract from the coming impeachment hearings in the —

AMY GOODMAN: Because he saw — right, because he saw it was coming. So, but very interestingly, though the Bolton revelations are dominating the media and the talk in Washington, that’s not true at the Senate impeachment trial, though he was mentioned, in one of the only brief references to him, Bolton, by retired Harvard law professor Alan Dershowitz, speaking at the impeachment trial. This is what he said.

ALAN DERSHOWITZ: If a president, any president, were to have done what the Times reported about the context of the Bolton manuscript, that would not constitute an impeachable offense. Let me repeat: Nothing in the Bolton revelations, even if true, would rise to the level of an abuse of power or an impeachable offense. That is clear from the history. That is clear from the language of the Constitution. You cannot turn conduct that is not impeachable into impeachable conduct simply by using words like ”quid pro quo” and “personal benefit.”

AMY GOODMAN: So, Professor Finkelstein, if you could respond — Professor Finkelstein, if you could respond to Alan Dershowitz and then also talk about the significance of Ken Starr?

CLAIRE FINKELSTEIN: Right. Well, Dershowitz can say it all he wants, but making the argument that you can’t turn unimpeachable conduct into impeachable conduct by using words like ”quid pro quo” doesn’t respond to the allegations. There’s been very little here that responds to the substance of the allegations.

To the extent that there has been an argument, it’s that there is insufficient proof that the quid pro quo actually existed. For example, when they showed Ambassador Sondland saying “I presume it was a quid pro quo,” “I assume it was quid pro quo, is my own assumption.” That’s sort of casting doubt by raising questions about the burden of proof and suggesting, in effect, as though it were a real criminal trial, that there’s reasonable doubt about whether or not the quid pro quo existed.

But when you have Bolton giving chapter and verse and suggesting that he is willing to testify and ready to come into the Senate and tell what he knows, there goes the Republicans’ argument, because it’s going to be very hard for them to maintain that in fact the quid pro quo did not happen.

AMY GOODMAN: Final comments, Professor Finkelstein, to leave us with today?

CLAIRE FINKELSTEIN: It looks as though it’s very likely that John Bolton will testify. At this point, it will be very difficult for the Republican senators who have been saying that they favor witnesses not to vote in favor of Bolton testimony. And this is a really important development. Again, it’s important not just because it could be a game changer as far as the result goes, but it’s important because it’s pushing back on the president’s own obstruction of the process. And so, it’s a little bit of incremental resistance to Donald Trump’s ability to block witnesses and make the process meaningless. It’s very important that John Bolton is willing to step up to the plate and do this. And we’ll see what that brings.

AMY GOODMAN: Well, Claire Finkelstein, I want to thank you for being with us, professor of law and philosophy, and faculty director of the Center for Ethics and the Rule of Law at the University of Pennsylvania, speaking to us from Philadelphia. We’ll link to your piece in The New York Times, “This Question Is More Important Than Removing Trump: Can a sitting president block witnesses at his own impeachment trial?”

When we come back, feminist and artist Isabel Cabanillas de la Torre has been slain in Juárez, Mexico. We’ll go to Juárez to talk about the issue of femicide. Stay with us.