FNC’s Napolitano on Executive Privilege: ‘The Congress Is Superior to the President in Terms of Impeachment’

Fox News legal analyst Andrew Napolitano predicted on Tuesday’s broadcast of Fox News Channel’s “Fox & Friends,” that Chief Justice John Roberts would overrule any attempt by President Donald Trump to claim executive privilege to stop former National Security Adviser John Bolton’s testimony in the Senate impeachment trial because “the Congress is superior to the president in terms of impeachment.”

Hosts Steve Doocy said, “It’s protected by privilege, and yesterday the president’s defenders made it very clear, for decades the courts have recognized the president has the authority to exert privilege over testimony from his closest aides.”

Napolitano said, “If John came here as he used to, and started spilling the beans, that would violate the privilege. But it would be perfectly lawful, and he would be able to do it. If he did it in a press conference, it would be lawful, and he could do it. The question is, can he do it under oath in the well of the Senate? That’s where the authority is divided.”

He added, “As Sen. Cornyn told you he thinks the president would challenge it, and it would go to a district court — I have a different view. I think the chief justice would order it, and if the Senate didn’t overrule that ordering, John would have to testify. No judge would take jurisdiction of the case after the chief justice had ordered it.”

He added, “Executive privilege doesn’t apply every conversation the president has. In this context, it applies interestingly, right in John Bolton’s wheelhouse, military, diplomatic, sensitive national security. That’s what United States vs. Nixon, the unanimous Supreme Court opinion said in a criminal context where the government was subpoenaing documents on the president to see if he should be prosecuted. Not in an impeachment context. Remember, the House of Representatives — the branches of the government are equal. But in certain areas, one is superior to the other. So the president is superior to the Congress in terms of running the military. The Congress is superior to the president in terms of appropriating funds. The Congress is superior to the president in terms of impeachment.”

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