Fox News Judge Says Trump Making Claims of Executive Privilege 'Weaker' by Releasing Another Ukraine Phone Call Transcript

Fox News senior judicial analyst Andrew Napolitano said that President Donald Trump's decision to release a transcript of his first phone call with Ukraine's President Volodymyr Zelenskiy would make his claims to executive privilege "weaker" moving forward.

"The president will claim executive privilege on other communications, but the more he releases, the weaker his claim of executive privilege becomes," Napolitano, who previously served as a New Jersey Superior Court judge, pointed out during a Tuesday morning segment of the Fox News show Fox & Friends. "It's the selective release, that the courts will say, 'is he really serious about executive privilege?'"

The legal expert gave the assessment after Trump tweeted: "I will be releasing the transcript of the first, and therefore more important, phone call with the Ukrainian President before week's end!"

I will be releasing the transcript of the first, and therefore more important, phone call with the Ukrainian President before week’s end!

— Donald J. Trump (@realDonaldTrump) November 12, 2019

As Napolitano noted, Trump and his lawyers have repeatedly cited executive privilege to deny congressional investigators' requests and subpoenas in connection to the ongoing impeachment inquiry into the president's behavior towards Ukraine.

The legal expert asserted, however, that there could be language in the phone call that supports the president's case as he faces the next, public phase of the fast-moving impeachment inquiry in the House of Representatives this week. But Trump and his advisers had apparently thought the release in late September of the summary transcript of his second call with Ukraine's president would benefit the president. In reality, it only emboldened his critics and pushed the impeachment inquiry forward at a rapid pace.

"We don't know if it's a literal transcript, or if it's a summary like the one we all saw a few months ago," the former judge pointed out. According to closed-door testimony by National Security Council adviser Lt. Colonel Alexander Vindman, the summary transcript of Trump's second call with his Ukrainian counterpart, which took place on July 25, left out key mentions of the president's domestic political opponents.

The July 25 call is at the center of the Democrat-led impeachment inquiry against the president. An anonymous government whistleblower filed a formal complaint about the call and the president's efforts to pressure Ukrainian leaders to open investigations into unsubstantiated claims against Democratic presidential candidate Joe Biden and his son, as well as into a debunked conspiracy theory that Democrats worked with Ukrainians to interfere in the 2016 presidential election.

Trump initially said that the transcript of his first call with Ukraine's president, which was reportedly a congratulatory conversation after Zelenskiy won the country's presidential election earlier this year, would be released last week. It's unclear why the release was delayed and what new details—if any—the call could bring to light.

Thus far, multiple credible witnesses—including Trump-appointed diplomats and national security officials—have corroborated the details of the original whistleblower complaint. Furthermore, they have testified that the president essentially blackmailed Ukraine with a quid pro quo, temporarily withholding nearly $400 million in military aid to pressure the Eastern European nation's leaders to open the investigations he desired. Zelenskiy planned to do an interview with CNN, announcing the probes, as his government reportedly saw it as the only way to guarantee continued U.S. support. However, he canceled that interview after news of the pressure campaign became public knowledge in the U.S. and Democrats moved toward launching the impeachment inquiry.

Donald Trump
President Donald Trump speaks to members of the media on the South Lawn of the White House in Washington, D.C. as he departs for Tuscaloosa, Alabama on November 9 OLIVIER DOULIERY/AFP/HollywoodTake

Napolitano has repeatedly criticized Trump and his administration's actions towards Ukraine, as well as the defenses that Republicans have used to push back against the allegations.

Republicans "have seen the transcripts [of witness depositions] and have dropped their 'no quid pro quo' argument, and now make the legally absurd contention that all evidence derived from witness interviews conducted in secret—with Republican House members present and participating—is somehow tainted and should be thrown out," Napolitano wrote in an op-ed published Wednesday by Fox News.

On Thursday, he told Fox & Friends that "the impeachment process is not only lawful, it's constitutional," Napolitano added later, "under the Constitution the Democrats have a case."