Can a Former President Assert Executive Privilege in an Impeachment Trial?

President Trump speaks after the launch of a SpaceX Falcon 9 rocket on May 30, 2020. (NASA HQ PHOTO, https://flic.kr/p/2j7okd4; CC BY-NC-ND 2.0, https://creativecommons.org/licenses/by-nc-nd/2.0/) The central question of former President Trump’s second impeachment trial may be very similar to the central question of the first trial. Putting aside the larger discussion about whether a president who is impeached but then leaves office may still be tried in the Senate (questions addressed comprehensively by scholar Keith Wittington here ), this trial will depend primarily on examining Trump’s intent. And another question may be familiar as well: If the Senate needs evidence of Trump’s intent, to what extent, if at all, can Trump suppress that evidence by invoking executive privilege? In early 2020, the Senate was asked to decide whether Trump intended to blackmail Ukraine into harming his political rival for his personal gain or whether his request for a “ favor ” from the Ukrainian president was benign or, at least, not sufficiently culpable to warrant impeachment. Now, the Senate is asked to decide what Trump intended when he told his followers on Jan. 6 to march to the U.S. Capitol and “ fight like hell ” to prevent the election from being “stolen” and what he intended in the days leading up to Jan. 6 as he repeatedly endorsed conspiracy theories suggesting his loss to Biden was fraudulent. For both impeachment inquiries, the principal evidence has been public: the transcript of the Ukraine call and the Jan. 6 speech, respectively. But Trump’s intent is a critical issue, perhaps the critical issue for culpability. Indeed, some scholars have gone so far as to argue that Trump cannot be impeached and convicted if his speech is protected by the First Amendment. And even though numerous other scholars , both conservative and liberal, disagree with that analysis, Republican senators have picked up that argument as well. But the First Amendment argument, too, turns on intent. The First Amendment does not protect speech inciting violence. But speech can be considered incitement only if the speaker intended to incite imminent violence and such violence was likely to occur. Proving intent requires evidence. Often, this evidence is circumstantial and in the form of witnesses testifying to what a person told them about her purpose or how the person acted during a crucial time period. In a sense, as some senators have remarked , “We are eyewitnesses.” Trump, before his deplatforming , left no shortage of public statements fomenting his supporters to action over what he called the “stolen” election, and his Jan. 6 speech is there for all to read . But the American public does not know exactly what Trump did as his supporters ransacked the Capitol and pursued violence against the country’s elected leaders. Nor does the public have firsthand accounts of what Trump told his aides and allies in the days leading up to the insurrection. The best evidence of his culpable intent would be the same type of evidence that the House impeachment managers tried—and failed —to introduce in the first impeachment trial, personal testimony from those who interacted with Trump or observed him during these periods. Such testimony could remove any doubt that Trump willfully and mendaciously urged his supporters to refuse to accept the results of the election at all costs, knowing full well that violence was a likely result. Firsthand accounts could also demonstrate Trump’s complicity in the Capitol insurrection by establishing a purposeful failure to act. House impeachment managers appear to understand this and are deliberating whether to call witnesses who interacted with Trump during the occupation of the Capitol and in the days leading up to it. In the first Trump impeachment trial, the arguments against hearing witnesses—which some called “ incomprehensibly weak ”—rested primarily on the claim that they were not necessary or appropriate. Some senators, such as Lamar Alexander and Lindsey Graham, claimed it did not matter if Trump had withheld congressionally appropriated foreign aid to pressure Ukraine into announcing an investigation into his political rival purely for personal gain. Others, such as Marco Rubio, perhaps uncomfortable with blessing such conduct, suggested that Trump’s conduct constituted grounds for removal but did not actually warrant removal. Still others relied on procedural arguments, claiming that the House had the responsibility to gather all relevant evidence, including trying to compel recalcitrant witnesses to testify by filing enforcement actions in court. (Never mind, of course, that such judicial actions take months or even years or that Trump’s Department of Justice had argued that the courts lack authority to hear such actions.) Undergirding many of the senators’ arguments, however, was the contention that the witnesses’ testimony implicated executive privilege. Ron Johnson, for example, said that he wanted to protect against the “weakening of executive privilege,” and Graham characterized the House as “blow[ing] through these privileges” and insisted he would not “destroy the privilege” by seeking testimony. Former National Security Adviser John Bolton, the central figure in the dispute over witnesses, had indicated he was willing to testify if called (having had a change of heart after initially refusing to comply with a subpoena from the House). But Trump had, in a now-deleted retweet, adopted the view that even if Bolton agreed to testify, the “White House c[ould] assert executive privilege. It’s not Bolton’s privilege; it’s the president’s. If executive privilege covers anything, it is a talk between president and top advisor on matters of foreign policy.” As Trump faces his second impeachment trial, this time as a private citizen, the question of witnesses is again percolating —and the question of executive privilege potentially looming. Minority Leader Mitch McConnell, apparently without irony, has called it “ i mperative ” that the Senate not follow a “half-baked process” in this impeachment trial, suggesting he might favor a more traditional trial than last time, that is, one that includes witness testimony and evidence. Some Democrats, such as Tim Kaine, have come out in favor of witnesses for the sake of ensuring the solemnity and thoroughness of the trial, if they are called by the impeachment managers or defense. But others have suggested no witnesses are necessary given that the events that form the core of the charges—the encouragement of the Jan. 6 attack on and occupation of the Capitol—took place in public view. Complicating the question of witnesses are the recent revelations that Trump worked with Jeffrey Clark, a previously little-known Justice Department official, on a plan to oust Acting Attorney General Jeffrey Rosen. Trump reportedly spoke directly to Clark about weaponizing the Justice Department to attempt to overturn the election results once the president removed Rosen. Those reports mention a draft brief prepared by Trump’s personal lawyers that Trump asked the U.S. solicitor general to file in the Supreme Court as well as a brief memo with talking points prepared by the solicitor general’s office for Rosen to use in attempting to dissuade Trump from proceeding with the scheme. Moreover, although the recording of Trump’s infamous call trying to convince Georgia Secretary of State Brad Raffensberger to “find” more votes is public , there is undoubtedly a substantial amount of evidence about that conversation and others that would be relevant to a trial focused on those actions. The potential witnesses—Clark, Rosen, Raffensberger, former White House Counsel Pat Cippolone, his deputy, Patrick Philbin—would be testifying about their conversations and meetings with the president, conversations often considered to be at the core of executive privilege. Presidential communications enjoy a presumptive privilege because, in the Supreme Court’s words , the “President and those who assist him must be free to explore alternatives” without the fear that their deliberations will be made public. But, as Trump retweeted during the last impeachment in response to Bolton’s willingness to testify, executive privilege belongs to the president. And Trump is no longer the president.  Could Trump, as a former president, block the testimony of these witnesses or prevent the release of documents such as the draft brief or Rosen memorandum, by asserting executive privilege? There is, of course, the preliminary question of whether executive privilege applies to an impeachment hearing. I have explained at length why I think the best answer to that question, as a matter of history and theory, is that it does not. But assuming Trump attempts to block some of the testimony or witnesses refuse to answer out of deference to the presi
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