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He's absolutely immune from having to testify about such topics. And rightly so.
That's precisely the reason I called it a hail Mary. At that point, I'd be more worried about Looking Like I Was Doing Something than winning the case.
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In what way is he absolutely immune from having to testify on this topic? As IANAL, I'd be interested in any of the resident lawyers offering insight on this topic.
My understanding is that executive privilege is not in fact absolute, and it only comes in to play when revealing the information would impair governmental functions. It's difficult to see how it would apply in this instance, since this factor actually cuts the other way: not revealing the information would hinder governmental functions.
At the very least, Biden's refusal to simply testify that he did in fact issue the order to process the pardons would certainly allow the court to draw a negative inference on the matter. It's a pretty simple question to answer. Of course, doing so would open Biden up to further questioning around his mental capacity. C'est la vie.
IANAL either, but my take here is that if the questioning body could get around executive privilege by asserting that "not testifying hinders (whatever it is I'm doing)" then the privilege would be meaningless. It's certainly always true that refusal to testify hinders something.
Moreover, it's not supposed to be about how any specific instance of testimony impairs the functioning of the government. Rather, it's that, a priori, individuals within the executive need to be free to share their candid thoughts and that the threat of testifying would impair the President's right to receive that advice.
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He's immune from having to testify, maybe, but it would be so trivial for him to show up, say "yep, I authorized this" that refusing to do so would raise questions. His refusal to testify on its own would not push towards a verdict that goes Trump's way in the courtroom, but it would certainly go Trump's way in the public opinion.
The pardons, esp Hunter's, were already extremely unpopular. It's hard to see how further public opinion against them would matter if the courts rejected the DOJ's argument.
The pardons themselves are not the only thing this would affect. The narrative is that Americans in 2020 voted for Biden to "restore normality", anything that shatters this idea that the Biden administration was "normal" is good for Trump. Shows that "normality" is not a product of an administration but of its media coverage. That if the media is uninterested in presenting an administration as "chaotic", then it will seem "normal".
Agreed.
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