(Photo by Alex Wong/Getty Images)
To be honest, I do not care if Don McGahn ever actually testifies in front of Congress. The House Judiciary Committee screwed up the McGahn testimony a long time ago. As soon as the Mueller report was released, they should have compelled him to testify. As soon as he refused, they should have arrested him and sued him. Instead of playing hardball with Donald Trump’s reluctant accomplice, Democrats played footsie. They didn’t sue him until August. We’ve had to wait until November for his whackadoodle, blanket assertion of executive privilege to be rejected by a court. The government will now appeal to the Supreme Court. Even if the Supreme Court eventually rules against him, McGahn’s actually testimony will basically be a series of questions McGahn refuses to answer, citing various privileges. Moreover, McGahn is a key witness to Trump’s obstruction of justice, a charge that Democrats have all but abandoned in their new search to convince Trump Republicans to finally do the right thing and hold the criminal president accountable.
We must continue to pursue McGahn on general principles, but his part in this drama is no longer relevant.
Former National Security Adviser John Bolton still has a part to play. The McGahn ruling gives all the legal cover Bolton needs to testify in the impeachment inquiry about his knowledge of the bribery scheme implemented by President Trump and his personal lawyer, Rudolph Giuliani. Unfortunately, Bolton still appears to be too chickenshit to do the right thing. From the New York Times:
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…
“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.
John Bolton is most well-known for his aggressive foreign policy positions. There’s nary a problem on the global stage that Bolton doesn’t think can be bombed or shot out of existence. But Bolton’s reticence to provide Congressional testimony — a timidity not shared by his deputy Fiona Hill or former ambassador Marie Yovanovitch or ambassador Bill Taylor or Lt. Col. Alexander Vindman or numerous others who willingly told the truth to the American people — exposes Bolton as a cheap schoolyard bully. He’s happy to fight when he enjoys an advantage of institutional strength over his adversary. But when the odds are even? When the outcome is unclear? No, Bolton shrinks from that challenge to hide under the apron of his lawyer.
To be clear, the argument from Bolton and lawyer Charles Cooper is a bad one. They’re contemplating the same kind of blanket immunity from testimony that was just rejected in the McGahn case. If anything, as not only a top adviser but a lawyer, McGahn has a stronger legal argument to avoid testimony all together. If McGahn can be expected to at least sit there and be asked questions, whether or not he’ll answer them, so must Bolton. Nobody is going to ask Bolton about national security secrets. Trump already declassified his solicitation of bribes; Bolton will just be asked to confirm the obvious.
But Bolton doesn’t want to do his duty — he wants to be a diva. He wants to drag this out. He wants to sell his book. He wants to avoid being seen by fellow Republicans as the man who sunk Trump’s presidency. John Bolton doesn’t want cover, he wants to run away like a coward.
Ruling Will Not Lead Bolton to Testify Soon, Lawyer Says [New York Times]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.