Eight years on, the Supreme Court's revival of the president's removal power in Free Enterprise Fund v. PCAOB offers important lessons for originalism.
The controversy over whether former National Security Advisor John Bolton should be allowed to testify in the presidential impeachment trial has raised complicated issues regarding the scope and limits of executive privilege. As there is no mention of executive privilege in the Constitution, and this presidential power never has been precisely defined either judicially or legislatively, the circumstances under which a president may exert that power have always been somewhat murky.
Many precedents and judicial opinions have established nonetheless some reliable parameters for the exercise of this presidential power. Executive privilege is thus well-established as a legitimate presidential power, under certain circumstances. It is not an absolute power, and it often must yield to other claims, such as Congress’s need for information to properly conduct an investigation.
National security has been the most frequently cited basis for claims of executive privilege, along with the president’s need for candid, confidential advice. Executive privilege thus protects information that, if released publicly, would cause some national harm, and it protects presidential aides from the fear of public disclosure of the advice they provide to the president.
If the Senate does call Bolton as a witness, President Trump will most likely claim executive privilege to prevent his former aide from testifying. Such a claim will be based on the administration’s contention that Bolton’s testimony is privileged because he was a close adviser to the president and that the testimony provided will touch on national security concerns.
In the view of the members of Congress seeking Bolton’s testimony, both rationales fail due to Congress’s more compelling need for the testimony as it is carrying out its fundamental constitutional function of impeachment. And here is where the issue becomes especially complicated. As with all presidential powers other than pardons and reprieves, the president’s authority is not absolute. It is subject to a balancing test, weighing the importance of maintaining secrecy against, in this case, the Senate’s need for testimony to get the evidence necessary to confirm whether the president acted in a manner that justifies his removal from office.
However, it is likely that the Trump administration will attempt to block Bolton and other witnesses’ testimony, as it did when the House of Representatives subpoenaed former White House aide Don McGahn during its impeachment investigation. In that case, the White House claimed presidential aides are “absolutely immune” from appearing and testifying before a congressional committee. Currently, the McGahn case is before the DC Appeals Court awaiting a ruling.
With past controversies over executive privilege as a guide, it is clear that any claim of executive privilege in the current context will be extremely difficult to uphold for the following reasons:
First, in cases of serious allegations of wrongdoing, executive privilege weakens substantially. The balancing test must be in favor of Congress’s need for information. That was the standard in United States v. Nixon, a case in which the Court validated the principle of executive privilege while rejecting President Nixon’s particular claim because, in a criminal investigation, justice requires the relevant evidence available to determine guilt or innocence.
Second, it is more difficult to claim executive privilege to prevent private citizen John Bolton from testifying than it is to prevent an incumbent National Security Advisor from doing so. Claims of executive privilege weaken significantly when a presidential advisor no longer works for the president.
Third, Bolton clearly has direct knowledge of events and conversations that bear on the allegations against the president. If called to testify, he may limit his answers to such matters, while not revealing any information that bears on critical national security concerns.
Fourth, the president has made public utterances (on Twitter in particular) on matters over which he claims he may invoke executive privilege. That act alone may have undermined the credibility of any presidential claim of executive privilege in the current controversy.
Fifth and finally, much of what Bolton will say in testimony has become public already. Portions of his forthcoming book manuscript appear in news media, and the book itself will soon be in print. The administration’s threats to prevent the release of the book manuscript are unlikely to succeed and therefore a substantial public record—admittedly from Bolton’s perspective—will reflect the contents of any testimony he would provide.
Given that Bolton served in a position that gave him access to critical national security information, it is worth more exposition of this particular area of executive privilege claims. The Supreme Court has on a number of occasions acknowledged the national security component of executive privilege as a separate field for the protection of executive branch information. However, claiming national security concerns does not create an unbreachable form of executive privilege. In fact, the same balancing of interests between the branches that frequently occurs in other contexts would happen under a national security justification for executive privilege. As a result, despite the claims of some past presidents and President Trump that they possess exclusive control over military and foreign affairs, Congress has long been able to access executive branch information that legislators deem necessary to carry out their own legislative, oversight, and even foreign policy responsibilities.
To better understand why national security claims are not an absolute bar to producing information it is helpful to look to the administration of our first president, George Washington, who battled with Congress as that body sought information about a failed military expedition. Despite the fact that Washington determined that he possessed the authority to withhold information from Congress if doing so was in the national interest, he ultimately conceded that Congress needed the information to carry out its own constitutional functions. In fact, in providing the requested information President Washington made the distinction between withholding information to protect the public interest and doing so to protect the administration from disclosures that might be embarrassing or politically damaging. This distinction binds to this day our general understanding of executive privilege.
The abuse of power and obstruction charges against President Trump must be given due consideration and be properly vetted during the current impeachment process. That means executive privilege or other claims that might be made to withhold information cannot stand in the face of a congressional request for witnesses or documents. There simply are no grounds that protect the president or his administration from Congress carrying out its current constitutional obligation to conduct a proper inquiry into whether the president acted in a fashion that justifies his removal.