The GOP Sez The House Should Have Gone To Court

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CNN @mkraju reports: Senate Republicans say they may not vote for witnesses because Trump will invoke executive privilege and that means drawn out litigation.

SEVERAL things very wrong with that position.

1. Good argument that Chief Justice issuing subpoena is final.

— Ryan Goodman (@rgoodlaw) January 24, 2020

Oh, wait; now the Senate can't do that because it would take too long. However, the Senate has an advantage the House didn't:

2. On this first argument—the law makes Chief Justice Roberts’ subpoenas when backed by majority of Senators final and not subject to litigation—see this exchange👇with @gtconway3d @joshtpm @AstorAaron https://t.co/DmQtSMKLyp

— Ryan Goodman (@rgoodlaw) January 24, 2020

I really don't see a District court overruling the opinion of a Chief Justice and the Senate when impeachment itself is not subject to judicial review. That means all actions during the impeachment trial are, similarly, not subject to judicial review. (I'm assuming that's the argument of the Conway article.)  Besides:

3. Now think of the politics. A precondition for idea that there’d be litigation is a world in which a subpoena has been signed by Chief Justice of United States and backed by bipartisan majority of Senate.

That ain’t a situation the witness or White House could easily resist.

— Ryan Goodman (@rgoodlaw) January 24, 2020

Yeah, I'm pretty sure I've made this argument before.

4. Now think of how executive privilege works. Bolton has to show up. The issue is whether he invokes executive privilege for specific questions. Executive privilege is going to fail for a host of reasons including others have already publicly testified on these questions.

— Ryan Goodman (@rgoodlaw) January 24, 2020

"Executive privilege" is not the "absolute immunity" the White House has used to "just say no" to Congressional subpoenas. Like the 5th amendment, you have to show up and testify, and then invoke the privilege for every question asked. And since this isn't a self-incrimination issue, the privilege only works if the information has always been protected. Since it hasn't, you can't protect it now.

Of course, what the Senate GOP doesn't want at all is ANY testimony from witnesses, for obvious reasons:

House Managers have plenty of evidence to make the case in a fair tribunal, but GOP senators have admitted that they have prejudged the evidence. They are afraid that Bolton and other witnesses will make it impossible to acquit Trump. America deserves the facts. https://t.co/C7N2i6tX6P

— Barb McQuade (@BarbMcQuade) January 23, 2020

It's all about the acquittal; at all costs.

I want it to cost the GOP not less than everything.