One of the great puzzles in the impeachment hearings against Donald Trump is why so many administration officials are getting away with defying congressional demands to testify. So far, on the president’s instructions, Defense Secretary Mike Esper, Energy Secretary Rick Perry, Secretary of State Mike Pompeo, and acting White House Chief of Staff Mick Mulvaney have refused House subpoenas; Rudy Giuliani, Trump’s attorney, has vowed to do the same. Two other former officials, former National Security Adviser John Bolton and his aide Charles Kupperman — both called to testify before Congress — have asked U.S. District Judge Richard J. Leon to decide between the two branches’ claims, with a hearing set for the distressingly distant date of December 10.
Trump and his aides stand charged with asking a foreign power to help the president in the upcoming presidential election — an obviously impeachable and possibly criminal offense.
Especially now that Congress has formally voted on and opened impeachment proceedings, mooting Trump’s argument that the closed proceedings were illegitimate, only the most tenuous grounds exist to claim immunity from testifying.
But the White House continues to invoke “executive privilege” — a real but ill-defined doctrine that seeks to guarantee that a president can receive unvarnished counsel. If the conversations among top aides were subject to routine public exposure, the argument goes, they would refrain from offering their candid advice.
Although only the cases of Bolton and Kupperman will come before Judge Leon next month (earlier this week Mulvaney sought to join their lawsuit and then, under criticism, reversed himself), the court’s ruling could have implications for all those officials trying to justify their insubordination by hiding behind Trump’s directive.
The key precedent here, as in so many matters Trumpian, is the impeachment of Richard Nixon in 1974. Nixon chose to resign rather than become the first president removed from office through the impeachment process…