Professor Andrew Kent co-authored a piece for the Washington Post outlining how executive privilege can’t be used to block any possible testimony from John Bolton in the Senate impeachment trial.
Bolton has given mixed signals about his willingness to testify. But if he wants to tell all, and the Senate wants to hear it, Trump almost certainly can’t stop him. Executive privilege is a shield that presidents have wielded to attempt to protect the executive branch from efforts by Congress, prosecutors or private litigants to force its employees (including former employees) to testify or provide documents. But we — a legal scholar and former executive branch lawyer who have studied and worked on these issues — are unaware of any instance in which an administration has asserted executive privilege to block the testimony of a former executive branch employee who wanted to talk.
What’s more, even if Bolton wanted to use executive privilege as an excuse to dodge some questions he’d prefer not to answer, he should not be able to, although the Senate will have the final say. As the Supreme Court has recognized, the validity of any assertion of executive privilege must be assessed by balancing the need for confidentiality against the need for the requested information. In the context of a Senate impeachment trial, the need to investigate credible allegations against the president far outweighs any confidentiality interests of the executive branch.