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Opinion Trump impeachment: Judge's ruling may mean John Bolton and Mick Mulvaney have to testify

18:45  26 november  2019
18:45  26 november  2019 Source:   usatoday.com

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Trump impeachment : Judge ' s ruling may mean John Bolton and Mick Mulvaney have to More on impeachment :Stefanik's dive into Trump 's MAGA nihilism reveals dark Republican future. McGahn has already said he will respect Judge Jackson’s order and appear to testify if a stay isn’t

Judge Jackson said that individual questions might still be subject to claims of executive privilege but that a president could not prevent former aides from But Mr. Bolton has been maddeningly vague, even teasing, about what he might have to say. He authorized his lawyer to tell the House in a letter

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Pat Skipper wearing a suit and tie talking on a cell phone: In this Sept. 4, 2018 file photo, White House counsel Don McGahn, listens as he attends a confirmation hearing for Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee on Capitol Hill in Washington.© Provided by USA TODAY, a division of Gannett Satellite Information Network, Inc. In this Sept. 4, 2018 file photo, White House counsel Don McGahn, listens as he attends a confirmation hearing for Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee on Capitol Hill in Washington.

A ruling in Don McGahn’s lawsuit could not have come at a worse time for the Trump administration.

Back in April, McGahn, a former White House counsel who resigned in October of 2018, was issued a subpoena by the House Judiciary committee who wanted him to testify about President Trump’s efforts to get him to fire Robert Mueller. President Trump, claiming an absolute privilege to prevent his current and former subordinates from testifying, ordered McGahn to ignore the subpoena. McGahn, finding himself in a constitutional no-man’s land between an executive branch claim of privilege and a legislative branch subpoena, opted to let the courts sort out the competing claims.

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“ John Bolton is a patriot and may know that I held back the money from Ukraine because it is considered a corrupt country, & I wanted to know why nearby European countries weren’t putting up Bolton and Mulvaney said they would wait for the judge ’ s ruling before deciding whether to comply.

--Donald Trump could be in big trouble as his former National Security Adviser John Bolton has been called to testify before the House as part of the

McGahn has a duty to comply

On Monday, a federal district court did just that, categorically rejecting President Trump’s claims and finding that McGahn had a duty to comply with the Judiciary committee’s subpoena and to appear before Congress to testify. “[T]he President does not have (and, thus, cannot lawfully assert) the power to prevent his current and former senior-level aides from responding to congressional subpoenas.”

The court observed that the duty to appear and offer testimony was completely separate from whether a witness could use an appropriate assertion of executive privilege — or some other privilege — to avoid answering a particular question. “White House aides can withhold the kinds of confidential and privileged information that distinguishes them from everybody else; they can do so by asserting an appropriate privilege if needed, when legislators ask questions that probe too deeply.”

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John Bolton should make the same decision.” Bolton , who has said he had conversations with While he said he would prefer for witnesses such as Bolton and secretary of state Mike Pompeo to Mulvaney is among Trump officials who have refused to co-operate with the impeachment inquiry.

In addition to Mulvaney and Bolton , Schumer says Democrats would also like to call Robert Blair, an aide to Mulvaney , and Michael Duffey, who works at the “Conducting the trial according to this plan,” Schumer says, “will also allow the public to have confidence in the process and will demonstrate that

Now it gets interesting. There is no wiggle-room in Judge Jackson’s decision. On the question of an administration official’s duty to comply with a subpoena, it is as clear as it is possible to be. This is immensely consequential for John Bolton, Rudy Giuliani, Mick Mulvaney and a host of others. While this case will almost certainly be appealed, there is no certainty that either Judge Jackson or the Court of Appeals will issue a stay of the order requiring McGahn to testify. In fact, there are good reasons why a court wouldn’t do so in this case. McGahn has already said he will respect Judge Jackson’s order and appear to testify if a stay isn’t issued.

To make matters worse — or better — Judge Jackson’s discussion of executive privilege is in the context of a normal “legislative” subpoena. That’s because this case began on August 7th, long before the House opened a formal impeachment proceeding.

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“ John Bolton never informed Mick Mulvaney of any concerns surrounding Bolton ’ s purported August conversation with the president,” Driscoll said. “Nor did Mr. Mulvaney ever have a conversation with the president or anyone else indicating that Ukrainian military aid was withheld in exchange for a

Bolton is willing to testify if the judge rules in favor of the House, The Washingon Post previously reported. People close to Bolton and Kupperman said the two were flabbergasted by Mulvaney ’ s surprise request to join the lawsuit because they and others on the national security team considered

While this has never been directly tested by a court, most legal scholars agree that there is no such thing as “executive privilege” in the context of an impeachment proceeding. When the House is investigating what it believes is impeachable conduct, the president cannot simply refuse to provide information that it doesn’t want Congress to have. For obvious reasons, it can’t be left up to the target of an investigation to decide what information the investigators are allowed to see. As Judge Jackson observed, “[T]he primary takeaway from the past 250 years of recorded American history is that presidents are not kings.” Indeed they are not. They are subject to the laws and to congressional oversight just like everybody else.

No lazy executive privilege

In other words, not only are all of the president’s aides legally required to testify before Congress, since this is now an impeachment inquiry, they will not be able to refuse to answer questions based on “executive privilege.” They most certainly will not be allowed to refuse to answer questions based on the “lazy” version that has become so popular over the last few years even without an express claim of privilege by the White House. “I can’t disclose my personal conversations with the president.” It’s those personal conversations that are now at the very heart of the impeachment inquiry.

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John Bolton , then the national security adviser, listens as President Donald Trump meets with Netherlands Prime Minister Mark Rutte in the Trump ' s personal lawyer Rudy Giuliani, meanwhile, is not part of the president' s impeachment trial team and has said he would "love" to testify .

News reports indicate John Bolton ' s book ties President Trump personally to the pressure Democrats have sought testimony from Bolton and at least three other administration officials: acting White House chief of staff Mick Mulvaney Bolton , who declined to testify before the House, has

So Judge Jackson’s opinion opens up whole new vistas of inquiry from what were previously unobtainable witnesses. No doubt many of them will refuse to testify no matter what. But some of them, like Don McGahn himself, may well decide to come in from the cold. Adam Schiff recently announced that the House Intelligence committee would be wrapping up its part of the proceedings shortly after returning from the Thanksgiving recess. He might want to rethink that now.

Republican Chris Truax, an appellate lawyer in San Diego, is a member of USA TODAY's Board of Contributors.

You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to letters@usatoday.com.

This article originally appeared on USA TODAY: Trump impeachment: Judge's ruling may mean John Bolton and Mick Mulvaney have to testify

‘The president gave us no choice’: Pelosi resisted Trump’s impeachment, now she’s the public face .
The speaker was skeptical of impeachment for months, considering it a political liability and preferring to focus on pocketbook issues. That changed with Trump’s phone call to Ukraine.Don’t expect these hearings to trigger a massive shift in public support toward ousting President Trump, Pelosi (D-Calif.) told her colleagues the night before the hearing, according to Democrats familiar with her warning who spoke on the condition of anonymity to discuss the encounter frankly.

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