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    It’s Not About What He Might Say

    Much has been written about leaks from the upcoming book by John Bolton where he claims President Trump asked Ukrainian President Zelensky to investigate the Bidens as a condition of releasing aid to Ukraine – the now infamous quid pro quo.

    None of us will ever know exactly what President Trump said or what President Zelensky believed at the time. Both have denied any quid pro quo and Zelensky has said he never felt any pressure.  On the other hand, some who were present on the call or who know people who were present on the call claim otherwise. So it’s their word against the statements by Presidents Trump and Zelensky.

    We can now apparently add John Bolton’s to the cacophony of voices expressing an opinion whether or not there was a quid pro quo. There is a real possibility Bolton might be called as a fact witness in the Senate trial.

    For now, however, let’s put aside who is right in the conflicting testimony about a quid pro quo. And for now, let’s put aside whether a quid pro quo rises to an impeachable offense (“treason, bribery or other high crimes and misdemeanors”) and removal of a sitting president. And let’s also put aside for now the arguments that the House could have called Bolton as a witness but chose not to do so. And for now, never mind whether the House should now look to the Senate to correct that misstep. We’ve heard more than enough about those debating points from both Democrats and Republicans. And we’ve heard more than enough biased news reports on both sides of the issues. I seriously doubt Bolton will add more information not already assumed, known or disputed by a long list of House witnesses, House and Senate Managers, and the media on both sides of the issues.

    What we should talk about, however, is whether John Bolton should be talking at all.  I believe he should not.

    Executive privilege is a serious issue for any U.S. President. George Washington was the first president to assert it and virtually every president since has cited it to protect what he believes to be confidential communications with his advisors in the Executive Branch. Derived from the doctrine of separation of powers (and not a right mentioned in the Constitution), it is corollary to the Legislative’s branch’s congressional oversight. Each represents doctrines that are often at odds with one another. When one branch believes asserting either privilege or oversight is improper, the difference of opinion is ultimately adjudicated by courts, the third branch of government. This is the essence of the concept of separation of powers embedded in the Constitution. The courts are the final arbiter when disputes regarding the scope of executive privilege or congressional oversight clash. Neither executive privilege nor congressional oversight, however, are absolute. There are limits set by the Supreme Court (and some lower courts). But without question, both doctrines are integral to the operation of our government.

    Enter John Bolton. Appointed by Trump as his U.S. National Security Advisor on April 9, 2018, he was summarily fired by the president on September 10, 2019. No stranger to holding sensitive positions in government affairs, he previously served as the U.S. Ambassador to the United Nations and Under Secretary of State for Arms Control and International Security Affairs. No doubt he knows the most sensitive of information about national security that has been entrusted to him by numerous presidents over his government service. And we should all applaud that service and his dedication to our nation’s security.

    What I cannot applaud, however, is his dalliance into publishing a tell-all book and collecting royalties by capitalizing on communications that may well be confidential. A president must be able to openly communicate with his advisors, particularly his National Security Advisor. They must be free to exchange ideas without fear that those communications will be made public once his advisor reenters the private sector. Otherwise, presidents would be loath to have such discourse and, as a result, lose the opportunity to hear all sides of a debate before making a final decision on the course of U.S. foreign policy. That need for confidentiality and confidence is critical to every president whether they are Democrats or Republicans. It is the essence of executive privilege. And while asserting the right is not absolute, the legislative branch should think very carefully before it challenges it, remembering that precedent is agnostic to party affiliation.  As we’ve seen in government all to many times, policies based on partisan politics never lead to a good result. Perhaps the best example is the Democrats 2013 rule change during the Obama Administration that opened the door to end debate and approve a nominee to the federal courts by a simple majority. Some would argue that their avarice at the time to stifle debate has now come to bite them with more than 150 confirmations of judges nominated by President Trump in just the first three years of his presidency. No doubt the Democrats in the Senate would like that misstep repealed.

    Congress needs to ask itself if this is the time to adjudicate what will likely be an assertion of executive privilege if Bolton is called to testify in the Senate. Given the inevitable outcome of the trial and President Trump’s acquittal, is now the time to create precedent in a centuries-old doctrine that may well come to bite future Democrat presidents? Or should we ask Mr. Bolton to honor the concept of confidentiality as something far more important than the royalties you may earn trading on privileged information he received while serving the president? That is a message I would deliver to any presidential advisor regardless of the administration they served.