Attorney General Jeff Sessions’ refusal to answer key questions during Tuesday’s Senate Intelligence Committee hearing is likely part of a carefully crafted legal strategy to avoid accountability. If President Donald Trump asserted executive privilege over his conversations with his top officials, that move could trigger potential litigation. Citing a more vague reason to not answer questions, on the other hand, likely wouldn’t.
Sessions stonewalled committee members, as did national intelligence officials who testified before the committee last week, using a tactic that Constitutional law expert Stephen I. Vladeck described as the “non-privileged privilege.” Officials, using this tactic, avoid the issue of executive privilege altogether but enjoy its benefits by not answering investigatory questions.
“Sessions is now the third official in the last week to use this strategy. I’m not sure this is the very first time we’ve ever seen it, but it certainly appears to be the first systematic invocation of the idea,” said Vladeck, a University of Texas School of Law professor. “This has all the hallmarks of a carefully crafted strategy by the White House and the Justice Department, and by smart lawyers in the executive branch.”
In theory, a witness testifying before Congress has an obligation to answer questions or to assert a privilege that precludes the individual from responding, said Vladeck. But that obligation relies on members of Congress to enforce the requirement, he added.
“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.”
Committee Chairman Richard Burr, (R-NC) did not step up to compel Sessions to provide the specifics of his legal basis during the hearing, which covered a range of issues tied to the Federal Bureau of Investigation’s probe into whether members of the Trump campaign colluded with the Russian government, as well as Trump’s firing of former FBI Director James Comey.
And although Democratic and independent senators grilled Sessions about his legal grounds for refusing to discuss his conversations with Trump, Sessions repeatedly left the committee hanging. During an exchange with Sen. Martin Heinrich (D-NM) about whether the president had ever expressed his frustration regarding Sessions’ decision to recuse himself from matters related to the FBI’s Russia probe, the attorney general responded: “I’m not able to invoke executive privilege. That’s the president’s prerogative.”
Instead, Sessions cited a “long-standing” Department of Justice policy as his reason for not sharing “private communications” with the president, while seemingly leaving the door open for Trump to invoke the privilege in the future.
“It’s my judgement that it would be inappropriate for me to answer and reveal private conversations with the president when he has not had a full opportunity to review the questions and to make a decision on whether or not to approve such an answer,” Sessions told Heinrich, who accused him of impeding the investigation.
In an interview Tuesday with PBS NewsHour, Rep. Adam Schiff (D-CA) didn’t buy Sessions’ excuse. He pointed out that the questions that the Senate Intelligence Committee asked of Sessions could have been easily anticipated, and said there was “no reason why” the White House could not have instructed the attorney general about whether Trump was going to invoke executive privilege.
“[The White House] didn’t want him to [invoke executive privilege]. They didn’t want the optics of it, and that’s not a good reason for refusing to answer the questions,” Schiff told PBS NewsHour. “But more than that, if the attorney general allowed himself to be used as a pretext, to give justification for a firing that was made on other grounds, that not only violates his recusal, it also potentially violates the law or is a highly unethical practice and we need to find out whether that’s the case.”
Had Trump invoked executive privilege to prevent Sessions from answering questions before the committee, this would have triggered the legal mechanism by which Congress could have questioned the basis for that claim, said Vladeck.
The courts have established that executive privilege offers broad protections to communications between the president and his advisers, including discussions and written correspondences with the president. However, presidential communications privilege can be overcome if a prosecutor seeking evidence can demonstrate that the evidence is critical, necessary, and cannot be found elsewhere.
“So in the [Richard] Nixon tapes case, the special prosecutor was able to get the tapes even in the face of a valid claim of executive privilege because the courts concluded that the public interest in a criminal prosecution outweighed the president’s interests and confidentiality,” said Vladeck.
But the Senate Intelligence Committee would have to agree to challenge the validity of an executive privilege claim, an unlikelihood given partisan divisions.
Legal experts have also weighed in on the question of whether Trump has, in effect, waived executive privilege by publicly discussing Comey’s firing. This may explain why Trump hasn’t yet invoked executive privilege, said Vladeck.
“I think it may even be especially attractive to the administration to try this gambit because they may have doubts about the strength of the privilege claim on the merits,” said Vladeck.
Senate Republicans have to cooperate to hold witness’ feet to the fire
Congress has several options when it comes to holding uncooperative witnesses accountable, said Vladeck. Congress could file a civil lawsuit to try to litigate any type of privilege claim; Congress could hold Sessions in contempt; Or Congress could refer the case to the Justice Department for prosecution under a legal statute that makes contempt of Congress a crime.
All three options require agreement from the majority of the Senate Intelligence Committee’s members, and there’s no indication that Republicans are interested in pursuing any of the options, said Vladeck.
“So what I suspect is going on is the administration is betting that Congressional Republicans just aren’t going to take that step,” said Vladeck.
Schiff told PBS NewsHour that Congress should not let Sessions’ “non-invocation of privilege” prevent the congressional committees from investigating whether the attorney general played a role—when he submitted a letter to Trump recommending that Comey be fired—in providing a “cover or pretext” for a decision that may have been made on other grounds.
“Now I don’t know if that’s the case because [Sessions] wouldn’t answer, but as it goes to the very heart of whether the president sought to interfere or obstruct the Russia investigation, we need to use whatever compulsory process is necessary to get those answers,” said Schiff, the ranking Democrat on the House Intelligence Committee, which is investigating the potential collusion between Trump’s campaign aides and Russia.
Vladeck was not familiar with the long-standing Department of Justice policy that Sessions referenced on Tuesday, but said the committee should have insisted that Sessions provide the legal basis for his refusal to answer questions at that point.
“The question is whether there is some constitutional or a common law privilege that protects the attorney general in that circumstance. There may be, but he should be under an obligation to actually assert the privilege, and I think he’s effectively daring the committee to call his bluff,” said Vladeck.
Sessions withered under the intense, rapid-fire questioning of Senator Kamala Harris (D-CA), a former prosector, who tried to drill down on exactly what Department of Justice policy Sessions was relying on as his legal basis for refusing to answer questions. But before Sessions could respond, Sen. John McCain (R-AZ) interrupted and asked committee Chairman Richard Burr (R-NC) to reprimand Harris for allegedly interrupting Sessions.
And all but one of 10 legal experts interviewed by Vox rejected Sessions’ argument on its face, saying that “Sessions is legally permitted to discuss conversations with the president,” as long as Trump hasn’t invoked executive privilege.
On Twitter, Laurence H. Tribe, a professor of constitutional law at Harvard Law School called Republicans “gutless” for failing to hold Trump’s top officials accountable.
Coats, Rogers, Sessions have all invoked the Non-Executive, Non-5th Amendment Stonewalling Privilege. Gutless GOP Congress is saying: "Fine"
— Laurence Tribe (@tribelaw) June 13, 2017
For Schiff, the matter is far from settled. On Tuesday, he told PBS NewsHour that if Congress is to live up to its institutional responsibility, this requires answers to the questions from its committees. This includes whether the White House will invoke executive privilege.
“And if they’re not, we need to bring the attorney general back before either our committee in the House or before the Senate Committee and demand answers to those questions,” said Schiff.
If Trump does invoke executive privilege, Congress should litigate “the contours of that privilege,” said Schiff.
“But we do need to get to the bottom of this,” said Schiff. “We have the powers and institution to do it and I think we have an ethical obligation to the country to do it.”