Just Security reports:

All relevant judicial precedents make clear that Bolton should not be able to invoke executive privilege to avoid testifying in the Senate impeachment trial. As a threshold matter, there is no precedent for the president invoking executive privilege to preclude the private testimony of a witness who is able and willing to testify. Bolton is a private citizen who is no longer a member of the executive branch. He has already indicated his willingness to testify, and he has no legal authority to dictate the conditions. If Trump now attempts to assert executive privilege to prevent Bolton from testifying, existing precedent from the Supreme Court, Circuit Courts, and D.C. District Court all suggest that Bolton’s testimony is not protected by executive privilege.

In United States v. Nixon, the only Supreme Court case to address executive privilege over presidential communications, the Court required President Richard Nixon to comply with a subpoena to turn over audiotapes of his conversations to a special prosecutor. The Nixon Court explicitly rejected the notion of unqualified executive privilege, instead holding that the privilege should be limited to communications in furtherance of actual presidential responsibilities. “[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity ….” Instead, the Court carefully limited its conception of executive privilege to communications “of [the president’s] office” “in performance of his responsibilities.” Three years later, the Supreme Court explained that the Nixon Court had “held that [executive] privilege is limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’” By so saying, the Nixon Court established that executive privilege does not extend to purely political communications that concern the advancement of a crime or other acts in violation of law. Executive privilege should therefore not apply to Trump’s impeachment, where the Government Accountability Office has determined that the withholding of aid from Ukraine—the issue at the heart of the impeachment—violated the Impoundment Control Act, and possibly various federal campaign finance laws as well. [Continue reading…]