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Politics Ruling Will Not Lead John Bolton to Testify Soon, Lawyer Says

21:30  26 november  2019
21:30  26 november  2019 Source:   nytimes.com

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WASHINGTON — John R. Bolton, the former national security adviser to President Trump who resisted efforts to pressure Ukraine for help against domestic political rivals, dashed any expectation on Tuesday that he would testify soon in the House impeachment investigation in response to a court ruling involving a onetime colleague.

a man wearing a suit and tie: John R. Bolton, the former national security adviser, giving a speech in Washington in September.© Win Mcnamee/Getty Images John R. Bolton, the former national security adviser, giving a speech in Washington in September.

Charles J. Cooper, a lawyer who represents Mr. Bolton, said that a court decision on Monday ordering another former White House official to appear before Congress under subpoena did not apply to Mr. Bolton because of the nature of his job. Mr. Cooper said Mr. Bolton would therefore wait for another judge to rule in a separate case that could take weeks more to litigate.

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The statement came a day after a federal district judge rejected the assertion that Mr. Trump could block aides from responding to congressional subpoenas based on a sweeping claim of presidential immunity. The ruling ordered Donald F. McGahn II, a former White House counsel for Mr. Trump, to comply with a House subpoena. Mr. McGahn’s lawyer filed a notice on Tuesday that he would appeal and asked that the order be suspended in the meantime.

While the judge said it made no difference whether a White House official dealt with national security matters, Mr. Cooper rejected any suggestion that it would cover Mr. Bolton.

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“Any passing references in the McGahn decision to presidential communications concerning national security matters are not authoritative on the validity of testimonial immunity for close White House advisers” whose “responsibilities are focused exclusively on providing information and advice to the president on national security,” Mr. Cooper said.

Mr. Trump, who is on the verge of being impeached for pushing Ukraine to help him against his Democratic rivals while withholding American security aid, said later Tuesday that he had no concern about Mr. Bolton testifying and that he was resisting the House investigation because he considered it illegitimate.

“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 money also,” Mr. Trump wrote on Twitter, rebutting his own administration officials who have said he was holding the money back to pressure Ukraine.

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Mr. Trump added that his refusal to cooperate with the impeachment inquiry was motivated by a desire to guard the prerogatives of his office. “I am fighting for future Presidents and the Office of the President,” he wrote. “Other than that, I would actually like people to testify.”

House Democrats have not been counting on Mr. Bolton’s testimony and have signaled that they intend to press ahead with the impeachment inquiry without waiting for court cases about testimony from White House aides to be resolved. Representative Adam B. Schiff, the chairman of the House Intelligence Committee, said Monday that he expected his panel to deliver a report soon after Thanksgiving making the case for impeaching Mr. Trump.

Mr. Bolton was among the most prominent witnesses who did not appear during two weeks of public hearings held by the committee examining Mr. Trump’s efforts to push Ukraine to announce investigations tied to Democrats while withholding $391 million in American security aid.

The former national security adviser, who left his post in September after months of disputes with Mr. Trump on a variety of matters, adamantly opposed the Ukraine pressure campaign, according to testimony before the committee. He referred to it as a “drug deal” cooked up with other advisers to the president and instructed aides to report what they knew about it to White House lawyers.

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But Mr. Bolton declined a House invitation to testify after the White House refused to authorize current or former aides to talk with investigators. Instead, he is waiting for the result of a separate lawsuit filed by his longtime friend and former deputy, Charles M. Kupperman, who was subpoenaed in the impeachment inquiry. In October, Mr. Kupperman asked a federal judge to decide whether he should follow the orders of the White House or the House. That case is scheduled to be argued on Dec. 10.

Some Democrats had held out hope that Mr. Bolton might not wait and would instead rely on the decision in the McGahn case to agree to testify. In her ruling, Judge Ketanji Brown Jackson of the Federal District Court for the District of Columbia almost seemed to be addressing Mr. Bolton’s argument that his job was different than that of Mr. McGahn because of its focus on national security matters.

“Nor does it make any difference whether the aides in question are privy to national security matters, or work solely on domestic issues,” she wrote in her 120-page opinion.

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 even showing up when ordered by Congress. “Presidents are not kings,” she wrote. “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

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Mr. Bolton has not given any indication of what he would say if he does eventually testify, but he has teased that he has something to say. While Republicans have sought to dismiss the testimony of others against Mr. Trump as mere secondhand hearsay, Mr. Bolton had more direct regular access to the president than any of the witnesses who appeared over the last two weeks.

Mr. Bolton “was personally involved in many of the events, meetings, and conversations about which you have already received testimony, as well as many relevant meetings and conversations that have not yet been discussed in the testimonies thus far,” Mr. Cooper, his lawyer, wrote in a letter to the House earlier this month.

In a Twitter message last week, Mr. Bolton suggested that the White House had tried to keep him off social media after his departure in September “out of fear of what I may say,” a comment that could refer to his known disagreements with Mr. Trump’s foreign policy but in the hothouse environment of impeachment was taken as a tease.

Because the McGahn ruling will be appealed and any decision in Mr. Kupperman’s suit may likewise be taken to higher courts, it could be months before the judiciary settles the matter. Rather than wait, House Democrats have said they will use the White House effort to block testimony by aides like Mr. Bolton as evidence in an article of impeachment alleging obstruction of Congress. They anticipate a final House vote on impeachment by the end of the year.

At the State Department on Tuesday, Secretary of State Mike Pompeo sidestepped a question about whether he would testify in the impeachment inquiry. “When the time is right, all good things happen,” Mr. Pompeo told reporters. He did not respond to requests to clarify what that meant. The question of how much Mr. Pompeo knew about the Ukraine pressure campaign has come up repeatedly during the impeachment hearings but House Democrats have not subpoenaed him to testify.

If Mr. Bolton and other witnesses who have defied subpoenas or requests for information like Rudolph W. Giuliani, the president’s personal attorney, and Mick Mulvaney, the acting White House chief of staff, have not complied before the House vote, they still could be called as witnesses in a Senate trial.

The court fights may be resolved by then. If not, some lawyers suggest that the House members acting as prosecutors in a Senate trial could ask Chief Justice John G. Roberts Jr., who under the Constitution would preside, to summon Mr. Bolton and others.

Lara Jakes contributed reporting.

McGahn's case appealed after judge says he must comply with subpoena .
On Monday, a federal judge rejected the administration's argument of absolute privilege, declaring "presidents are not kings"On Monday, Jackson wrote that "the primary takeaway from the past 250 years of recorded American history is that presidents are not kings." White House press secretary Stephanie Grisham said that ruling "contradicts longstanding legal precedent established by administrations of both political parties.

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