Last updated on February 7, 2020
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).
Calling witnesses in the Senate trial is ultimately still about Democratic candidates like Joe Biden. “Senator Joni Ernst admits GOP using impeachment trial to damage Biden in 2020” — Bean Spilling.
In the field of political forecasting, almost nothing is a matter of certainty, and almost everything is a matter of probability. If Democrats nominate Bernie Sanders — who currently leads the field in Iowa and New Hampshire, and appears to be consolidating support among the party’s progressive wing, while its moderates remain splintered — his prospects against Donald Trump in November would be far from hopeless. Polarization has given any major party nominee a high enough floor of support that the term “unelectable” has no real place in the discussion. What’s more, every candidate in the race brings a suite of their own liabilities Trump could exploit.
That said, the totality of the evidence suggests Sanders is an extremely, perhaps uniquely, risky nominee. His vulnerabilities are enormous and untested. No party nomination, with the possible exception of Barry Goldwater in 1964, has put forth a presidential nominee with the level of downside risk exposure as a Sanders-led ticket would bring. To nominate Sanders would be insane.
At this point there is hardly any serious evidence to believe that the best strategy to defeat Trump is to mobilize voters with a radical economic agenda. Public satisfaction with the economy is now at its highest point since the peak of the dot-com boom two decades ago. Trump has serious weaknesses of issues like health care, corruption, taxes, and the environment, and a majority of the public disapproves of Trump’s performance, but he does enjoy broad approval of his economic management. Therefore, his reelection strategy revolves around painting his opponents as radical and dangerous. You may not like me, he will argue, but my opponents are going to turn over the apple cart. A Sanders campaign seems almost designed to play directly into Trump’s message.
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