On Episode 33 of War Room: Impeachment, constitutional lawyer David Rivkin discusses his recent Wall Street Journal op-ed, ‘Schiff’s Obstruction Theory’ with hosts Stephen K. Bannon and Jason Miller.

Rivkin outlines: “We’re going to have articles of impeachment that would accuse the president falsely of obstructing congressional inquiry, so it’s important to explain why this is completely illegitimate.”

Democrats are “going to use [obstruction charges] to impede his ability to be treated fairly, if at all possible, in the House Judiciary Committee.” 

Rivkin describes the central thesis of his op-ed: “There are two key points of this piece. You cannot charge the president with obstruction because he’s using his constitutional privileges and absent definitive Supreme Court adjudication of the contrary, he’s fully entitled to do what he’s doing. The second point is equally imperative. To the extent the Democrats are not trying and would be unable to get credible, firsthand information on the president’s state of mind, they would not be able to bring a single article.”

He outlines the types of presidential privileges involved in impeachment: “There are 2 different issues: what substantive issues Democrats are putting on the table and what is their ability to develop facts that buttress this. It is the latter issue that privileges apply, long established before this president got into office. There’s a national security privilege which is a privilege to withhold national security information no matter who in the executive branch possesses it. It dates back to a state secrets privilege which was first asserted by Jefferson and has been repeatedly recognized by the courts as far back as 1807.” 

He continues: “The second privilege has been articulated a bit more recently. It basically dates to 1971 and was done then by young William Rehnquist: immunity for immediate presidential advisors. That immunity applies only to people who are in immediate daily contact with the president.” 

To Rivkin, “Both of those immunities operate together” and afford the president the ability to “order people legitimately not to testify and not to produce documents. It does not have anything to do with the substance or charges.” 

And presidential privileges relating to high-level members of the foreign policy community is even broader: “it doesn’t matter who it is.”

Without such testimony, “They cannot get to the credible evidence of the “quo” talking to Ambassador Yovanovitch or Ambassador Sondland, William Taylor, or George Kent. Most of them have never even met the president in their entire lives.”

Co-host Jason Miller adds: “You took it a step further and even called it a ‘political sham’. What can you say about this roulette wheel of legal allegations that Schiff and the Democrats are throwing out? We have extortion, bribery, obstruction, quid pro quo, all these different allegations. What does that say about their argument and the merits of it?”

Rivkin responds: “It’s infinitely malleable because they don’t have a good argument […] The Democrats are basically coming up with different monikers to describe what is a high crime and misdemeanors, and every one of them is unconvincing as the previous one.”