Why Aren’t All the President’s Men Testifying?

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Why Aren’t All the President’s Men Testifying?
By: Harold Hongju Ko - Law Professor @ Yale - 01-07-20
Re: https://www.nytimes.com/2020/01/07/o...ss&partner=rss

Why aren’t all the president’s men testifying? (Very Good Article!)

Some of the president’s closest aides, official and unofficial, past and present — Robert Blair, Michael Duffey, Rudy Giuliani, Don McGahn, Mick Mulvaney and Mike Pompeo — invoke a presidential order to refuse to give evidence about delays in Ukraine aid. But government officials like Gordon Sondland, William Taylor, Alexander Vindman and Marie Yovanovitch all ignored such orders and gave valuable testimony. After weeks of tweeting, giving interviews and writing his memoirs, John Bolton has let it be known that he will testify before the Senate, if he is subpoenaed by the Senate. But what gives him the right to dictate terms?

Mr. Bolton’s statement Monday claims that he is trying to “resolve the serious competing issues” between his obligations as a citizen and a former national security official. In fact, those obligations point in the same direction. Like jury duty or paying taxes, testifying under oath about facts we know is not optional; it is a fundamental obligation of citizenship. As a government official, Mr. Bolton held high office under an oath to “support and defend the Constitution.” Testifying at a Senate impeachment trial fulfills that constitutional oath.

Anyone who served in high public office knows that testifying before Congress about matters you worked on in government is part of your solemn public duty. If legislators’ questions impinge upon legitimate concerns about executive or national security privilege, you still must appear, declining to answer only those questions that call for information legally protected from public disclosure.

It does not matter that these witnesses have successfully withheld their testimony until now. The House’s impeachment vote should overrule any ethical or legal objection these witnesses now have to testifying before the Senate. How can senators vote on Mr. Trump’s removal without the testimony of any of his closest advisers? And if Mr. Bolton ends up testifying, don’t the Senate and the public need the others’ testimony to flesh out the full story?

The testimony of these witnesses may support Mr. Trump’s claims of innocence or help to prove that he committed the acts for which he has been impeached. Either way, these subordinates were all crucial witnesses to and either willing or reluctant participants in those actions.

In United States v. Nixon, the landmark White House tape recordings case, the Supreme Court unanimously rejected the claim of a president under an impeachment inquiry to an “absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” At Bill Clinton’s impeachment trial, a senior adviser to the president testified on videotape. During the Nixon impeachment inquiry, the White House counsel, deputy chief of staff, the president’s former personal lawyer and an assistant attorney general all testified before Congress.

Unlike Nixon, Mr. Trump has now actually been impeached, for abuse of power and obstructing congressional investigation. If official witnesses don’t testify about these acts, the very subordinates who may have helped Mr. Trump commit them can aid and abet his continuing obstruction. If so, on what conceivable basis can such officials as Mr. Pompeo and Mr. Mulvaney continue to hold high office under an oath to support and defend the Constitution? And recent history only repeats itself if former officials can enrich themselves through memoirs based on what they learned in public office about Mr. Trump’s abuse of a public position for private gain.

Until now, public pressure to secure this testimony has been directed more at swing senators than at the recalcitrant witnesses. But these witnesses withhold their testimony in contempt of Congress and the law. Their actions create a new constitutional crisis, to which Congress must respond with four steps.

1. First, no law empowers an impeachment witness to dictate that he or she will testify under subpoena before the Senate, but not the House. To supplement its impeachment report, the House should immediately vote to subpoena Mr. Bolton’s testimony. Mr. Bolton’s new flexibility should reinforce the resolve of the House speaker, Nancy Pelosi, not to transmit the articles of impeachment to the Senate until Mitch McConnell, the Senate majority leader, agrees to a fair trial that includes critical witnesses.

2. Second, the Constitution authorizes Congress to exercise its inherent contempt power to jail an individual who defies an order to testify, until the individual complies with congressional demands. The House should pass a resolution to hold individuals who resist testifying in contempt of Congress, and to arrest and detain them unless and until they agree to give that testimony. As part of the rules it must pass to govern its impeachment trial, the Senate should also pass a resolution — authorized by a 1978 law — demanding these witnesses’ testimony and seeking a declaratory judgment from the District of Columbia federal court requiring these witnesses to testify promptly. Senators’ votes on these contempt-of-Congress resolutions can fairly be read as evidence of whether they intend to follow their constitutional oath “in all things appertaining to the trial of impeachment … now pending …[to] do impartial justice according to the Constitution and laws.”

3. Third, some of these witnesses have shown their contempt not just for Congress, but also the courts. The House legal counsel should petition those courts where subpoenas against these witnesses are pending to arrest and detain them on the ground that their continued refusal to testify, even after the historic passage of an impeachment resolution, constitutes both a criminal violation and civil contempt of court. In the Beatty Chadwick civil contempt case, a defendant was imprisoned for 14 years for failing to comply with the order of a state court.

4. Finally, if all else fails, once House managers are appointed, they should seek an order from the presiding judge, Chief Justice John Roberts, directing these witnesses to testify. If they defy his order, he is entitled to rule that their defiance at Mr. Trump’s direction constitutes evidence that the testimony they are withholding would have supported the impeachment charges, abuse of power and obstruction of justice.

The impeachment voted by the House is the first in history for national security misconduct. The unfolding crisis in Iran only increases the urgency of learning from direct witnesses whether President Trump has responsibly exercised his constitutional responsibilities in foreign affairs. At a moment of such constitutional urgency, the time for half-measures is over. When a presidency, the Constitution and our national security are all at stake, witnesses who flout their duty to testify must bear the consequences of their contempt.

About this writer: Harold Hongju Koh, a professor of international law and a former dean at Yale Law School, served as legal adviser to the State Department from 2009 to 2013.