In testimony before the Senate Judiciary Committee on Wednesday, Attorney General Jeff Sessions continued to stonewall Congress by recycling an excuse he used four months ago. Sessions is seeking to avoid answering questions about his conversations with President Donald Trump, who has yet to invoke executive privilege regarding conversations with his top officials.
Sessions told Congress he would neither assert executive privilege nor disclose the contents of his conversations with Trump, the same reason he gave to the Senate Intelligence Committee in June. The committee is interested in these conversations as part of its inquiry into the firing of former FBI director James Comey and potential Trump campaign collusion with Russia.
“Until such time as the president makes a decision with respect to this privilege, I cannot waive that privilege myself or otherwise compromise his ability to assert it,” Sessions told the committee on Wednesday. “As a result, during today’s hearing and under these circumstances today, I will not be able to discuss the content of my conversations with the president.”
Legal experts have described this tactic to ThinkProgress as “non-privileged privilege,” and likely a carefully crafted legal strategy to avoid accountability, allowing officials to sidestep the limitations of executive privilege while still refusing to answer questions.
“Attorney General Sessions is skating on very thin legal ice now that he has had more than four months to discuss the executive privilege issue with President Trump, given that his lack of opportunity to do so was the only excuse he gave for refusing to answer the Senate’s clearly relevant questions without invoking the privilege on June ,” Laurence H. Tribe, a professor of constitutional law at Harvard Law School, told ThinkProgress in an email.
Sessions’ opening comments to the committee came in response to a letter sent earlier in October by the panel’s Democratic senators, who put the attorney general on notice regarding his potential assertions of executive privilege.
Sessions’ previous refusal to answer questions in the June 13 hearing was based on two Department of Justice memoranda. The Senators’ letter noted that although one memorandum outlines how the Attorney General may “temporarily hold off inquires” tied to executive privilege while the president decides whether to claim that privilege, the senators expected Sessions to have resolved that question by the time he appeared before the committee on Wednesday.
“We expect that when you appear before the Senate Judiciary Committee on October 18th, you will have determined whether the president will invoke executive privilege as to specific topics and will be prepared to answer completely all questions in those areas on which he has not,” the letter stated.
Despite having more than four months to make that determination since the June hearing, Sessions yet again wiggled out of answering the senators’ questions while acknowledging that Trump had yet to invoke executive privilege.
“[C]onsistent with the longstanding policy and practice of the executive branch, I can neither assert executive privilege nor can I disclose today the content of my confidential conversations with the president,” Sessions told the panel on Wednesday. “Under the administration of both parties, it is well established that a president is entitled to have private, confidential communications with his cabinet officials, his secretary of state, his secretary of defense, his secretary of treasury, and certainly his counsel in the attorney general of the United States and that such communications are within the core of executive privilege.”
Executive privilege is a legal doctrine that is not constitutionally guaranteed but that historically has protected a president’s communications. Privilege claimed in relation to a conversation or communication directly involving the president is presidential communications privilege, according to Ohio State University Moritz College of Law Professor Peter M. Shane, an expert in constitutional law and administrative law.
However, legal experts have told ThinkProgress that Trump’s public disclosures about Comey have put into question whether his conversations with Comey — and subsequent discussions of those conversations — are protected by presidential executive privilege. For example, in May, Trump publicly disclosed that he questioned Comey on multiple occasions about the agency’s ongoing Russia probe. University of Texas School of Law Professor Stephen I. Vladeck, also a constitutional law expert, told ThinkProgress in May that a president’s public comments can waive executive privilege for a particular topic.
“Certainly, the more President Trump opens his mouth and/or his Twitter account, the harder it will be for him and his associates to prevail in a fight over executive privilege — but that won’t stop them from invoking it, and from requiring Congress or the courts to sort it out,” wrote Vladeck in an email.
The courts cannot sort it out, however, until executive privilege is invoked, which may explain Sessions’ strategy.
In theory, a witness testifying before Congress has an obligation to answer questions or to assert a privilege that precludes the individual from responding. But that obligation relies on members of Congress to enforce the requirement, Vladeck told ThinkProgress.
“The committee would have to call the witness on that point and the committee would have to insist that the witness answer or assert a privilege,” said Vladeck. “If the committee does not so insist, then there’s nothing to stop these non-answer answers.”