Illustration by João Fazenda

Donald Trump, at times when it has served his purposes, has chosen to assume different personae. There was John Barron, an alias he used in the nineteen-eighties when giving false property valuations to a reporter. Later, there was John Miller, a guise he adopted to brag to People about his romances. (“He’s living with Marla and he’s got three other girlfriends.”) David Dennison was his stand-in for a hush agreement with the adult-movie actress Stormy Daniels, which has now led the Manhattan District Attorney to subpoena Trump’s accountant in an effort to get access, at last, to the President’s tax returns.

More recently, Trump has shown an elastic sense of identity in ways that exemplify his Presidential overreach and arrogance. On Halloween, in a case that has major implications for both the impeachment process and the future of executive power, a Justice Department lawyer told Judge Ketanji Brown Jackson, in a district court in D.C., that Don McGahn, the former White House counsel, was “absolutely immune” from congressional subpoenas because he is “the alter ego of the President.” Apparently, he’s not the only one. The office of the current White House counsel, Pat Cipollone, has told potential witnesses in the House impeachment investigation—from Mick Mulvaney, the acting White House chief of staff, to Charles Kupperman, the former deputy national-security adviser—that they, too, are absolutely immune.

The argument is that certain associates work so closely with the President that they are, in effect, an extension of him, and thus free to ignore subpoenas or requests to testify. Others were told that, if they testified, they risked violating additional forms of Presidential privilege. Some witnesses, including Marie Yovanovitch, the former Ambassador to Ukraine, and Fiona Hill, a former National Security Council official, showed up anyway, and their testimony is proving devastating for Trump. More than a dozen witnesses, though, have failed to appear.

A prominent absentee was John Bolton, the former national-security adviser. On Friday, his lawyer said that Bolton’s willingness to testify depends on what the courts have to say about immunity. Bolton had a difficult relationship with Trump, who fired him, and a close view of his foreign dealings. (According to Hill, Bolton called the Ukraine scheme a “drug deal.”) His lawyer added that Bolton had new information, all of which could make him a dangerous witness for the President, particularly after this week, when public hearings begin.

But, even beyond the question of who will testify, the fights over immunity, along with a host of related legal battles, are critical, because Trump’s Presidency has been defined by his belief that he cannot be held to account. That conviction is particularly pernicious given that many of the questions at issue—What is executive privilege? Can a sitting President be indicted?—are surprisingly ill-defined in American jurisprudence. In fact, Presidents from both parties have on occasion tried to claim that close aides had absolute immunity. When President George W. Bush tested the assertion, in a case involving the former White House counsel Harriet Miers and the firing of U.S. attorneys, a federal judge ruled that no such immunity existed. But that case was settled, and never made it to even the appeals-court level. This may be the moment to establish some clarity.

The McGahn case is further along than other suits attempting to do so. (Last week, the House Intelligence Committee withdrew its subpoena for testimony from Kupperman, who had brought his own case, to keep the focus on McGahn.) The case arose from the Mueller report, which suggested that McGahn may have direct knowledge of Trump’s alleged obstructions of justice. By most accounts, Judge Jackson was taken aback by the breadth of the Administration’s claims, which included a denial that courts should be allowed to have any say in a fight between the President and Congress. “How will they resolve it on their own, then—sending the sergeant at arms to arrest Mr. McGahn?” she asked, referring to the House’s security guard. The Justice Department’s lawyers have suggested that a better idea might be for the House committees to rely on an “accommodation process”—in other words, if they were nice to Trump he might throw a few witnesses their way.

Similarly, in a case involving the Judiciary Committee’s efforts to get access to some of the Mueller report’s underlying materials, Judge Beryl Howell, the chief judge of the D.C. district court, said that the White House’s arguments that it was going along with normal processes “smack of farce.” (On October 25th, she ruled for the committee, although her order has been stayed.) And Judge Victor Marrero, the district-court judge in the tax-return case, noted that the President’s argument would “potentially immunize the misconduct of any other person, business affiliate, associate, or relative who may have collaborated with the President in committing purportedly unlawful acts.”

Marrero ruled against Trump on October 7th; an expedited appeal was heard two weeks later. In those oral arguments, Judge Denny Chin, of the Second Circuit, asked the President’s lawyer William Consovoy if he was actually arguing that, owing to Presidential immunity, Trump really could shoot somebody on Fifth Avenue and local authorities would not be able to pursue the case while he was President. “Nothing could be done?” Chin said. Consovoy replied, “That’s correct.”

The crudeness of the Administration’s arguments obscures the delicacy of the constitutional questions. Trump appears unwilling to accept the idea that weighing the President’s powers and privileges against other parties’ rights and interests is essential to a healthy constitutional system. (The Supreme Court performed such a balancing test in ordering Richard Nixon to turn over the White House tapes.) For Trump, it’s all or nothing. But the corollary to any claim of criminal immunity is that the alternative the Constitution provides—impeachment—must not be undermined.

The House isn’t waiting for all the missing witnesses to appear, or for all the cases to reach the Supreme Court. Instead, Adam Schiff, the chair of the House Intelligence Committee, warned last week that the President’s frantic efforts to sabotage the process could, in themselves, be impeachable offenses. As the list of charges grows, more people will be called to testify before the House, and then, most likely, the Senate—and their names may even surprise Donald Trump. ♦