Some Republican senators, including potential swing voters like Sen. Lisa Murkowski, have raised concerns that a subpoena for John Bolton will trigger a claim of executive privilege by the White House and then lead to undesirable drawn-out litigation. House managers have sought to downplay the length of any such dispute, noting perhaps too optimistically that Chief Justice John Roberts could decide the issue right then and there. They also argue that a court may not even entertain such a motion. Although the House managers may prove to be right, we don’t address that here. What both sides ignore is a reason that the White House might never truly want to litigate the executive privilege question. That’s because it could cause a federal court (or the chief justice) in short order to make the determination that the president committed a crime. Those advising the president would be wise to think hard before taking the actual step of asserting executive privilege to block the testimony of John Bolton or others.
As a threshold question, the judge will most probably look to whether an exception to executive privilege applies. The court could find that the privilege does not apply, for example, in those instances where the privilege has been waived by the president or his agents having spoken about the contents of the conversation. But there is another threshold issue: if the proposed testimony involves evidence of criminal activity (more commonly understood as the “crime-fraud” exception in the context of attorney-client privilege). As former State Department Legal Adviser Harold Koh and his co-authors explained in a thorough analysis of executive privilege and its exceptions, “government officials cannot use constitutional privileges to hide evidence of crimes” (citing United States v. Nixon, United States v. Myers, Comm. on Judiciary, In Re Sealed Case).
Indeed, the chief judge in the District of Columbia courthouse, where the White House would need to bring a court case to block testimony based on a claim of executive privilege, has dealt with the crime-fraud exception to the attorney-client privilege (which is generally more absolute than the executive privilege). Judges even warn counsel away from contesting the issue in these kinds of situations by noting that the court would then be compelled to determine if the relevant communications involved criminal activity. Paul Manafort’s counsel knows this lesson well, where the court issued a lengthy decision finding that his communications with his legal counsel in 2016–17 concerning the Foreign Agents Registration Act fell within the crime-fraud exception. Notably, as the court held, it is not necessary for both parties—the client and lawyer—to be involved in the fraud; it is sufficient that the client was seeking to perpetrate the fraud. The same should apply to the analysis of a claim of executive privilege. As a recent law review article observes, “The crime-fraud exception could potentially also apply. There is no official case in which the crime-fraud exception has been applied to communications otherwise protected by the executive privilege, but it is likely that a court would follow the policy underlying the crime-fraud exception to other privileges.”
Given the list of federal crimes that leading legal experts conclude applies to the alleged scheme with Ukraine, a federal court finding could be a significant blow to the White House both in the impeachment itself and more generally, as it would not be coming from members of the other party. It would also strengthen the hand of prosecutors who may be investigating others, like Rudolph Giuliani, as co-conspirators in such a scheme.
In short, there’s a legal buzzsaw that would await the White House in asserting a claim of executive privilege, as it would open the door to a judge finding that the crime-fraud exception applies.