Jurisprudence

House Democrats Should Be Preparing to Subpoena John Bolton

Bolton adjusts his glasses as he looks off-camera.
Then–national security adviser John Bolton in Minsk on Aug. 29.
Sergei Gapon/AFP via Getty Images

On Tuesday, Senate Majority Leader Mitch McConnell told reporters that he had the votes that he needs from Republican senators to start an impeachment trial without any commitment that witnesses will be called. As Democrats have consistently noted, such a trial would be a sham. Coming one day after former national security adviser John Bolton said he would testify before the Senate if subpoenaed, McConnell’s stated plan is even more outrageous. However, Bolton’s announcement has provided an opening for Congress’ other chamber to give the American public a full airing of the evidence. McConnell might not take Bolton up on his offer, but House leaders should.

The evidence already amassed from the damning testimony of administration officials and Trump aides during the House impeachment inquiry was overwhelming, but substantial elements of the story remained untold. The public never heard from the principal figures involved, including Bolton, Secretary of State Mike Pompeo, Secretary of Energy Rick Perry, and acting White House chief of staff Mick Mulvaney, all of whose testimony would have added greatly to the public’s understanding of exactly how the president leveraged America’s foreign policy and hundreds of millions of dollars in foreign aid towards bolstering his reelection campaign. Even with the evidence already on the table, these officials no doubt have a story to tell.

Bolton has already admitted as much for his own part, and his latest offer was a seeming reversal of his previous refusal to testify before the House and threat to fight a congressional subpoena, a move that forced House investigators to go on without his testimony.

The reversal is also a slap in the face of the American people, who deserve to have the whole story. If Bolton does have information relevant to the Ukraine inquiry, as he claims, that information belongs to the public. Only when they have all the evidence can the American people determine whether they approve of the president’s actions, and whether there is enough evidence for them to press members of the Senate to remove him from office. Witnesses with relevant evidence should not get to select how and in front of which friendly tribunal they share evidence.

In an ideal world, the Senate would simply take Bolton up on his offer and the public would get to hear from him through a trial. Of course, McConnell has said he has no intention of allowing the Senate to hear from witnesses, and that was only confirmed by his announcement that he has the votes to move a trial forward under his preferred ground rules.

But while McConnell has signaled that he has the votes to start a trial without an agreement on witnesses and evidence, it is not yet clear that he has the votes to refuse to hear witnesses. Senators such as Mitt Romney and Lisa Murkowski could still vote during the trial to hear testimony from Bolton (and others) and subpoena documents—Democrats would likely need four such votes to get witnesses.

If, however, the Senate does not vote to subpoena Bolton as a witness, the only option rests back with the House. Now that Bolton has made clear he’s willing to comply with one congressional subpoena, the House should issue its own subpoena and again extend an opportunity to testify to Bolton. Rep. Adam Schiff, who led the impeachment inquiry in the House, indicated on Thursday he had little intention of going that route at the moment, saying there would be “little to be gained” from issuing such a subpoena right now. That may be true today, but the calculus may change if the Senate trial goes forward without Bolton—and if it proves to be the sham trial McConnell has promised the White House.

Though the House has already voted on two articles of impeachment, there is nothing to stop them from continuing their investigation into the Ukraine scandal, and—if the evidence warrants—even drawing up additional articles of impeachment. If the Senate won’t hold a fair trial and expose the evidence to the American people, the House has a responsibility to do so.

In the best-case scenario, Bolton complies with a House subpoena and testifies while the Senate trial is still ongoing. But should he refuse and force the House to go to the courts, that legal battle is a battle well worth having, even if it delays the testimony by months. And the House may not even have to go to court (again). The D.C. Court of Appeals recently heard arguments in the House’s case to subpoena former White House counsel Don McGahn; that decision could come in the coming weeks and could reveal the court’s willingness to weigh in on the balance between congressional oversight and the White House’s broad and untested interpretation of “complete immunity” for presidential aides.

If the panel determines that McGahn must testify, it will open the floodgates to the House calling a litany of White House officials—including Bolton—to testify about Ukraine, Russia, and more. These witnesses remain critical, even after the impeachment vote. If Senate Republicans refuse to provide the public with a fair and meaningful trial in the Senate, Bolton’s evidence may still be valuable to the American people at the ultimate trial on Tuesday, Nov. 3, 2020.