Bolton and the Consequences of the Destruction of Executive Privilege

Fred Fleitz, a former deputy to John Bolton, the national security advisor President Trump fired in September 2019, over the weekend published an opinion piece explaining the dangers of his former boss’s anticipated tell-all book.

“Given the importance of protecting a president’s confidential discussions with his senior advisers,” Fleitz wrote, “I strongly disagree with Bolton’s decision to release the book before the November presidential election and call on him to withdraw it from the publisher immediately.”

Bolton is just the latest example of former advisors cravenly monetizing the confidential access to a president.

Fleitz represents what seems to be the last gasp of a legal tradition that is vital to our constitutional self-government. The consequences of this ongoing assault on presidential privileges will be catastrophic not only to the security of our Republic but also to self-government.

In 1974, the Supreme Court upheld the necessity of executive privilege, writing:

The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution.

The get-Trump forces have assaulted cherished traditions of executive and attorney-client privileges over the last three years, including the savaging of President Trump’s privileged communication with his private attorney Michael Cohen, the public disclosure of the call records of Trump’s attorney Rudy Giuliani, the public disclosure of confidential communications with the heads of state of Mexico and Australia, the lawless confiscation of private communications of Trump’s transition team, the leaks of private conversations with the head of the FBI, the leaks of Trump’s national security advisor’s communication with the Russian ambassador, and the leak of Trump’s confidential communication with the Ukrainian ambassador, just to name a few such violations.

The damage the get-Trump forces are doing is not limited to Trump personally. These lawless vigilantes are blinding all future presidents from advice and communication vital to the office. Further, they have chilled cooperation between future presidents and legitimate law enforcement inquiries into public corruption.

To illustrate the harm these villains have done to national security and democracy, let’s conduct some thought experiments.

Suppose you become the president and you learn that your staff has been approached by the FBI to investigate supposed malfeasance. Do you now cooperate with confidence that the FBI will call balls-and-strikes without regard to politics?

Suppose one of your staff members refuses to cooperate with the FBI, citing the example of former National Security Advisor Michael Flynn and the instance in which Peter Strzok quizzed him about a recorded conversation. When Flynn failed the memory test, Strzok gave his notes of Flynn’s answers to partisan FBI officials Lisa Page and Andrew McCabe, the latter himself later fired for lying to an internal FBI investigator.

Those individuals, who were not present during Flynn’s interview with Strzok, edited Flynn’s words. Flynn was then charged with lying based upon the account that the FBI altered.

No, you would not trust the FBI if you had any reason to think its politics did not align with your own. But suppose you really did have a bad apple in your organization. You wouldn’t know. Because the people charged with rooting out that rat don’t take care of the rats in their own organization.

Suppose a foreign country attempted to interfere in domestic U.S. politics. Suppose the CIA reported to you it had “high confidence” that a highly placed member of your administration was colluding with Albania. Would you blindly trust the CIA or would you reflect back on the fact that key portions of the CIA’s national intelligence assessment were merely a regurgitation of the lies commissioned by a president’s political opponent?

Suppose the State Department sent over experts on Albania to help advise you on a phone call you planned to have with Albania’s head of state. Would you allow these experts to listen in on that phone call? Not if you planned to have a candid conversation with the Albanian leader because such advisers can no longer be trusted to keep those conversations confidential. The smart thing to do would be to freeze them out if you plan to chart a foreign policy that does not comport with the strongly held opinions of the permanent bureaucracy.

Suppose you learned of some corrupt behavior by a member of your administration. A Justice Department official suggests the appointment of a special counsel to “clear things up.” You would be a fool to agree now that it has been confirmed that special counsel Robert Mueller knew, or should have known, on day one that Trump had already been exonerated by the FBI but that bureaucrats wanted to keep the investigation going anyway for political reasons.

Suppose the FBI approaches you to offer a briefing on intelligence threats to your administration. Now that we’ve learned that the FBI used those briefings to gather dirt on Trump, future presidents would have good reason to decline those briefings.

Suppose you’re considering appointing a national security advisor who will challenge what you think. You want the ability to hear his strong opposition to your foreign policy to keep yourself honest. Suppose you believe that having voices that strongly disagree with you helps you consider tough issues without an echo chamber of yes men. You would be a fool to allow a dissenter into your circle of trust now because he will inevitably breach confidentiality to recount those disagreements in a tell-all book.

Bolton has now confirmed that a president can no longer trust anyone to give advice without using his access to embarrass and undermine the commander-in-chief’s final decision. Opposition lawmakers in Congress will use any unelected bureaucrat they can find as a “whistleblower” to undermine the president from within. The best course of action? Don’t use advisers who disagree with you. That creates an unhealthy echo chamber that will lead to more horrible mistakes.

Imagine our country being led by a president who refuses to take advice from attorneys because he’s afraid of the U.S. attorney for the Southern District of New York seizing those communications and releasing their contents to the world.

Imagine our president shunning foreign policy and security experts because he cannot trust anyone not to leak. Imagine conducting foreign policy with leaders who can’t trust the U.S. government to keep the conversations confidential.

These villains are neutering the office of the president to seize power for themselves at the expense of the American people. Long after Trump is gone, the damage will remain. The get-Trump movement is legal nihilism and the antithesis of the rule of law.

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About Adam Mill

Adam Mill is a pen name. He is an adjunct fellow of the Center for American Greatness and works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. He graduated from the University of Kansas and has been admitted to practice in Kansas and Missouri. Mill has contributed to The Federalist, American Greatness, and The Daily Caller.

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