Just about everyone in the U.S. public square is criticizing John Bolton for waiting until now to tell of his experiences with President Trump. Trump’s supporters fault him for spilling the beans or accuse him of lying. Trump’s critics fault Bolton for failing to speak out during the impeachment process.
Just about everyone is wrong.
Bolton, the former national security adviser, is all over the news this week because of excerpts released from his soon-to-be-published memoir, The Room Where It Happened. The excerpts make Trump look ignorant, incompetent, intellectually unstable, and corrupt. In response, from right, center, and left, the furious cry has rung out: “Why didn’t you testify when it mattered?”
A fair review of Bolton’s political philosophy, the circumstances, the legal maneuverings, and the timelines shows that he had very good reason not to testify before the House of Representatives, and the only reason he didn’t testify to the Senate is because cowardly senators refused to let him.
In other words, don’t blame Bolton.
Last fall and early winter, Bolton found himself in an awkward spot. He has long been known as a proponent of a strong executive with robust privileges against certain sorts of disclosures. He also clearly thought the nation needed to know that Trump was an unsteady hand at the wheel of governance. He also knew, beyond any doubt, that Trump and his team are vindictive and, worse, that they gladly use state power, including that of a politicized Justice Department, to crush their perceived enemies.
Finally, Bolton saw that the House was cutting massive corners in its impeachment investigation in ways that made it impossible to tell if he was even legally free to testify.
The precise extent of executive privilege is an unsettled question in the courts. Trump had issued a blanket directive for his aides not to cooperate with the House investigation. Bolton’s deputy, Charles Kupperman, had filed suit to force a court decision about whether he was legally bound to follow Trump’s directive, or whether he would be legally required to comply with a House subpoena. Bolton let it be known that he would not testify to the House until Kupperman’s case was decided.
Without a court decision, Bolton and Kupperman truly were damned either way — and especially at legal risk from Trump and Attorney General William Barr. This was particularly true because the House had not actually voted to open an impeachment investigation; Speaker Nancy Pelosi merely deemed it an impeachment inquiry on her own, ill-asserted authority.
The House’s power to compel testimony is arguably far stronger in the case of the constitutional process of impeachment than it is otherwise. On the other hand, as long as the House was not legitimately conducting a formal impeachment investigation, Bolton, who supports a robust conception of executive privilege, still could be susceptible to legal punishment from the Trump team if he testified.
Again and again, the House operated in a slipshod, unfair manner, giving Bolton even more incentive not to cooperate unless he had the cover of a court order to do so. Bolton’s position made perfect sense, especially since impeachment would lead to a Senate trial in which he expected to be called to testify anyway.
The House ignored all the legal issues and impeached Trump without recourse to testimony from either Bolton or Kupperman. The judge in Kupperman’s case responded to this correctly by ruling the case moot. And that left Bolton in a bind. Without a court to guide him, he conducted his own careful legal analysis (he is a lawyer) and determined that if the Senate subpoenaed him, he would testify. He was right.
No matter how the House arrived at impeachment, once it was done, there could be no doubt that Senate proceedings were legitimate. Indeed, the Constitution gives a Senate trial of impeachment special weight and provides the Senate the “sole power” to conduct it. Binding precedent holds that the Senate is acting not in a legislative role during a presidential impeachment but specifically as a court. The Watergate case of United States v. Nixon made clear in multiple ways that sensitive presidential discussions are not protected from even ordinary court proceedings, and Nixon’s team even acknowledged that a Senate impeachment trial would enjoy even more power to pierce the veil of privilege.
As the Senate approached a vote on whether to call witnesses, Bolton all but begged, quite publicly, to testify. Without the problem of legitimate executive privilege in his way, and without any threat of legal sanction by Trump and Barr, Bolton wanted the public to know what he had seen. Senate Republicans, against all logic and propriety, refused to let this happen.
So no, it is not Bolton’s fault that the Senate, in cowardly fashion, covered its collective ears.
One other thing about Bolton’s conduct: One of the most important reasons to respect executive privilege is to keep classified information from being inadvertently spilled into the public realm. As an old hand at national security, Bolton knows that any memoir by someone in a high-security position must be vetted by a career official to make sure nothing classified makes it into print. Bolton was cooperating willingly and energetically with that vetting process. That process itself was a guard against the major evil that executive privilege is supposed to conquer.
Bolton’s book, then, is his way of letting the public know the truth about Trump without violating national security. Little did he imagine the lengths to which the Trump administration would go, in bad faith, to try to stop his book’s release. Once Bolton, in late April, was informed that his edited manuscript was free of classified material, he told his publisher to go forward — as is his right. He did not time this based on a desire to make bank — the timeline was limited by the vetting process and the logistical constraints that every publisher faces.
In sum, Bolton’s decisions throughout this process followed legitimate considerations and public duty. He tried at every stage to be as forthcoming as the law allowed. Throughout it all, he has acted not as a profiteer, but as a patriot.
