Can the House subpoena Bolton now?
January 11, 2020 7:50 AM   Subscribe

Can the U.S. House of Representatives subpoena Bolton to testify now?

I guess this is a procedural question. Some members of the US Senate only want to use evidence presented to the House. So even though the White House has forbidden its staff and ex-staff to testify, now that Bolton has said he is willing to testify in the Senate, can the House also subpoena Bolton to testify now?
posted by gt2 to Law & Government (5 answers total) 1 user marked this as a favorite
Best answer: They were always able to subpoena Bolton, the question was how long it would take for the subpoena to be enforced by the courts, if they were willing to enforce it at all. Bolton has said he is willing to testify in the Senate, but that doesn’t mean he would appear before the house if summoned. To me, it sounds like Bolton is just trolling. it appears he enjoys annoying both the current administration and liberals in general, and this gets up hopes on the left while probably freaks out the trumpists.
posted by skewed at 8:25 AM on January 11, 2020

Best answer: For a deeper dive: Should the House Have Gone to the Courts on Obstruction Before Impeaching? (Jonathan Shaub, Lawfare)
The House sued to enforce its subpoena to McGahn, for example, and to enforce its subpoenas for the census documents and Trump’s tax returns. But it did not sue over any subpoenas related to impeachment. Instead, it made the executive branch’s role in encouraging refusals a separate ground for impeachment. The House impeachment report defends this decision at length, arguing that the House has the “sole power of impeachment” and thus should not have to rely on the courts—a process that often takes a long time—to obtain information in an impeachment inquiry.

Somewhat ironically, the long-standing, bipartisan position of the Justice Department has been that the courts do not have the authority to resolve such disputes. [...] The responses to the obstruction charge arguing that the House should have asked the courts to weigh in, rather than impeach Trump, directly contradict that long-standing—and current—position of the Justice Department. But the courts themselves have also repeatedly rejected the Justice Department’s position about the justiciability of such suits. In every dispute that has been litigated in recent years, as well as older cases, the courts have held that they have jurisdiction to rule on the interbranch dispute, and that exercising such jurisdiction is an appropriate function for the judiciary if the other two branches have attempted to resolve their differences but have reached an impasse. [...]

The administration’s current positions reflect significant expansions of past precedents, and, in combination, they have resulted in an extreme view of the executive branch’s authority vis-a-vis Congress. Moreover, the wholesale application of these doctrines to an impeachment inquiry, coupled with the additional, expansive arguments in White House counsel Pat Cipollone’s Oct. 8 letter and elsewhere, is unprecedented—and, in my view, demonstrably at odds with the historical understanding of Congress’s impeachment authority and executive privilege. [...]

Just as there is no requirement that the House ask for judicial resolution of the disputes over documents and testimony, of course, there is no requirement that the House pursue these other procedural options before moving forward with impeachment. That is particularly true about the substantive allegations outlined in Article I of the impeachment articles, concerning abuse of power. The House decided that it had sufficient evidence from the available documents and the witnesses who did comply with the requests for testimony to move ahead on the abuse of power charge without waiting for courts to resolve whether additional evidence should be forthcoming. But I do think these actions make the question of whether the obstruction charge describes an impeachable offense more difficult: The House did not eliminate, as it could have relatively easily in some instances, the primary arguments of the executive branch that have some precedential support.
posted by katra at 8:56 AM on January 11, 2020 [1 favorite]

They always could have, and still could. As a coequal branch of government with the sole power to impeach, the House has a well-defined right to exercise oversight power over the executive branch. The questions of whether they would subpoena Bolton (or anyone else), however, are practical and political more than they are legal.

The practical questions are: how long the courts would take to allow the subpoena(s) to pass review; how much risk there is that "conservative" (in other words, stacked) courts would find (or invent) a precedent for the executive branch's claimed "absolute immunity;" and in the case of a court victory, how, exactly, the House could enforce the subpoena(s) in the case of contempt. They have the power to arrest, but exercise of that power is unusual.

The political questions partly involve taking the temperature of the courts, but also general reading of the climate in a divided country. Even if they had determined that the courts could resolve questions about legality and enforceability of legislative subpoenas in a reasonable amount of time and without setting damaging new precedents for "absolute immunity," they also had to determine if waiting for those outcomes would have been politically helpful or hurtful. In this case they proceeded without subpoenas, arguing that the obstruction itself was an issue (as very well explained above), and chose not to press their political luck.

There's also an ongoing question of whether more impeachment charges would have been worth the time and effort. Given the foregone conclusion of a sham trial in the Senate, coordinated with the White House, the decision to stop at two charges and move onto other business is at least defensible as a choice even if it's not the choice every person who opposes the president might have made.
posted by fedward at 9:15 AM on January 11, 2020 [1 favorite]

One of the reasons for my comment above is this: John Bolton impeachment testimony will be blocked, Donald Trump says (Guardian)
Trump claimed in an interview with Fox News host Laura Ingraham on Friday night he would “love everybody to testify”, including Bolton, secretary of state Mike Pompeo and acting chief of staff Mick Mulvaney.

But he went on to say “there are things that you can’t do from the standpoint of executive privilege”.

“Especially a national security adviser,” Trump added. “You can’t have him explaining all of your statements about national security concerning Russia, China and North Korea, everything. You just can’t do that.”

Asked if that meant he would invoke executive privilege to prevent Bolton from testifying, Trump said: “I think you have to for the sake of the office.”
The House can subpoena Bolton, and House counsel has suggested that Trump could be impeached again (Politico, Dec. 23, 2019), i.e.
House lawyers indicated in advance of last week’s committee and floor votes that the panel planned to push on with its impeachment-related investigations. Democratic lawmakers who led the House impeachment inquiry have long contended that their efforts to gather more evidence would continue and that the timing of the impeachment vote reflected the urgency of the matter, not the conclusion of the effort to obtain witnesses and documents.
but it appears to be a complicated question of constitutional law, timing, and political strategy.
posted by katra at 9:16 AM on January 11, 2020 [1 favorite]

Best answer: now that Bolton has said he is willing to testify in the Senate, can the House also subpoena Bolton to testify now?

The House could subpoena Bolton, but Bolton has not agreed to honor that subpoena and testify before the House. That means if he receives a House subpoena, he could immediately run to a federal judge to challenge the subpoena. That is exactly what Bolton's assistant Kupperman did and Bolton and Kupperman have the same lawyer.

And once the case gets into the hands of a judge, then the judge will forbid Bolton from testifying before both the House and Senate until the case it totally resolved including all appeals up to the Supreme Court. That could take many months.

So there is the risk that if the House issues a subpoena, Bolton will be prevented from testifying in the Senate. That is also the reason the House rescinded their subpoena for Kupperman, because that case could be used to block Bolton as well.

Bolton is playing a game. He wants to have a starring role on TV, Ollie North style, on his terms. The House hearings are the minor leagues. Bolton wants to play in the big time impeachment trial. He is not to be trusted.
posted by JackFlash at 10:45 AM on January 11, 2020 [2 favorites]

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