WASHINGTON -- A legal fight over executive privilege in the middle of the Senate's impeachment trial of President Donald Trump could put it into suspended animation.
If senators ultimately decide to subpoena Trump administration documents or seek witness testimony, House Democratic managers might have to decide whether to now wage court battles that were avoided during the House phase of the impeachment process.
Senate Judiciary Chairman Lindsey Graham has said in recent days that the Senate would either need to honor the claims that would likely be made by the White House regarding testimony from witnesses like acting chief of staff Mick Mulvaney and former national security adviser John Bolton, or go to the federal courts.
"If the president claims executive privilege, I'll give him the same right as every other president to litigate it," the South Carolina Republican told CQ Roll Call. "It means you'd have to stop the trial and it'd be a disaster for the country, and I don't want any other House to ever do this again. So, if you really want a witness and they're available to you, take the time to do it over there."
Delaware Democratic Sen. Chris Coons said the question of seeking a legal remedy to get testimony from current and former White House officials would be "a judgment call for the House managers."
"Executive privilege is not a 'get out of testifying for free' card. You can't use executive privilege to shield evidence of misconduct, and frankly, if President Trump wants to have a real defense in front of the Senate, he should consent to Bolton testifying," Coons said.
Senate Minority Leader Charles E. Schumer, asked Friday morning if Democrats would be willing to narrow some of their subpoenas to try to skirt any claims of executive privilege, said that's "jumping the gun" when Republicans haven't even said "yes" to the question of subpoenaing witnesses and documents.
"We believe we need to get a full and fair trial at such a solemn and serious trial -- at minimum the four witnesses we asked for and the four sets of documents we've asked for," said Schumer, a New York Democrat.
Sen. Richard Blumenthal dismissed the idea that there could be an extended court process over Bolton's potential testimony. He said the issues are being addressed in litigation over a subpoena the House Judiciary Committee issued for testimony from former White House counsel Don McGahn about what he told investigators in former special counsel Robert S. Mueller III's probe into potential obstruction of justice by Trump.
"There should be no protracted legal battle. The issue of executive privilege has already been decided in the McGahn case. The president is not a king or a monarch. He can't just assert broad executive privilege of blanket immunity," the Democrat from Connecticut told reporters. "The president can do a lot more illegality, but I think the courts will reject that position very quickly."