Thread by @marty_lederman

1/ Very interesting/important things to watch for in the Kupperman case (and the follow-on Bolton case, assuming there'll be one), apart from the immunity question at the heart of it:

i. Will either Trump or the House, or both, argue that it's nonjusticable?

@just_security

2/

ii. Even if the courts rule that there's no immunity from testimony, how much of Kupperman's/Bolton's testimony will be subject to executive privilege and, where it is, when will the privilege be overcome (outweighed) by the House's needs? [cont.]

3/

To be sure, the courts might not settle the privilege questions in this context, but they loom over the case b/c one of the POTUS's primary arguments will be that if virtually or almost all answers would be privileged, why bother requiring the officials to appear? [cont.]

4/

iii. W/r/t (ii), how, if at all, is the privilege question affected by the fact that the POTUS appears to have been acting unconstitutionally to advance his own interests (analogous to a crime/fraud exception question)?

iv. Also, to what extent ...

5/ ... are certain privilege claims waived, by a combination of (i) the release of the Zalenskyy call transcript; (ii) other officials' testimony; and, especially (iii) the fact that Trump's personal counsel, Giuliani, was privy to much of the info? [cont.]

6/ v. If Bolton/Kupperman don't have immunity, does Trump have a constitutional right to have a USG attorney present to assert privilege claims?

7/ FWIW, on the absolute immunity question itself I think Judge Bates's 2008 decision in the Miers case is right and should (& likely will) be followed.

casetext.com/case/committee…

8/ Kupperman complaint, w/OLC opinion, is here:

justsecurity.org/wp-content/upl…

@charlie_savage @jshaub