Darn those actions in furtherance of crimes, Trump still needs his Roy Cohns, as debate roils on whether to call witnesses. The GOP wants justice by the time the Super Bowl begins.
Some Republican Senators, including potential swing voters like Sen. Lisa Murkowski (R-AK), have raised concerns that a subpoena for John Bolton will trigger a claim of executive privilege by the White House and then lead to undesirable drawn out litigation. House managers have sought to downplay the length of any such dispute, noting perhaps too optimistically that Chief Justice Roberts could decide the issue right then and there. They also argue that a court may not even entertain such a motion. Although the House Managers may prove to be right, we don’t address that here. What both sides ignore is a reason that the White House might never truly want to litigate the executive privilege question. That’s because it could cause a federal court (or the Chief Justice) in short order to make the determination that the President committed a crime. Those advising the President would be wise to think hard before taking the actual step of asserting executive privilege to block the testimony of John Bolton or others.
As a threshold question, the judge will most probably look to whether an exception to executive privilege applies. The court could find that the privilege does not apply, for example, in those instances where the privilege has been waived by the President or his agents having spoken about the contents of the conversation. But there is another threshold issue: if the proposed testimony involves evidence of criminal activity (more commonly understood as the “crime-fraud” exception in the context of attorney-client privilege). As former State Department Legal Adviser Harold Koh and his coauthors explained in a thorough analysis of executive privilege and its exceptions, “government officials cannot use constitutional privileges to hide evidence of crimes” (citing United States v. Nixon, United States v. Myers, Comm. on Judiciary, In Re Sealed Case).
IÃ¢ÂÂve worked on 3 impeachments in my life:
-Nixon resigned in disgrace
-Clinton apologized to the nation & repented
-Trump says his behavior was Ã¢ÂÂperfect,Ã¢ÂÂ keeps trying to cheat our elections, & says he has a right to abuse his power
ThatÃ¢ÂÂs why we must #DefendOurDemocracy
— Rep. Zoe Lofgren (@RepZoeLofgren) January 28, 2020