Attorney General Jeff Sessions’ refusal to answer questions from the Senate Intelligence Committee regarding his conversations with President Donald Trump led to a series of fiery exchanges on Tuesday with senators who questioned the nation’s top law enforcement official for keeping quiet, even though his boss hadn’t invoked executive privilege to prevent Sessions from testifying.
During the Senate Intelligence Committee hearing, Sen. Martin Heinrich (D-NM) accused the attorney general of “impeding” the committee’s investigation after Sessions refused to answer a question about whether the president ever expressed his frustration regarding Sessions’ decision to recuse himself from matters related to the Federal Bureau of Investigation’s probe into whether members of the Trump campaign colluded with the Russian government
Sessions confirmed that Trump has not asserted executive privilege to protect conversations between the two. 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 said.
But invoking executive privilege may not be an option for Trump, who has publicly and repeatedly commented on social media and in media interviews on matters ranging from his firing of former FBI Director James Comey to the FBI’s Russia probe.
Legal experts have told ThinkProgress that Trump’s public disclosures regarding Comey’s firing put into question whether his conversations with Comey are protected by presidential executive privilege, a legal doctrine that is not constitutionally guaranteed but that historically has protected a president’s communications.
Constitutional law expert and University of Texas School of Law Professor Stephen I. Vladeck previously told ThinkProgress 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,” Vladeck said via email.
One form of executive privilege is the deliberative process privilege, which involves advice given to the president — for example, during deliberations or the decision-making process of executive officials. Another form of the privilege applies to confidential presidential communications, but doesn’t apply to conversations of a criminal nature, according to Laurence H. Tribe, a professor of constitutional law at Harvard Law School.
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.
Heinrich didn’t buy Sessions’ explanation that it was inappropriate for the attorney general to discuss his conversations with Trump, noting that Sessions had three buckets to choose from: He could either answer the question, discuss the matter in closed session if the topic was classified, or decline to talk based on presidential executive privilege.
“There is no appropriateness bucket. It is not a legal standard. Can you tell me what are these long standing DOJ rules that protect conversations…without invoking executive privilege?” Heinrich asked.
“Senator, I’m protecting the president’s constitutional right by not giving it away before he has a chance to review it,” Sessions responded.
To which Heinrich interjected: “You’re having it both ways.”
When pressed further by Sen. Kamala Harris (D-CA) regarding what Department of Justice policy he was referring to, Sessions could not cite any specific details.
During his questioning of Sessions, Sen. Angus King (I-ME) confirmed that Trump had not invoked executive privilege to prevent Sessions from testifying at Tuesday’s hearing.
“Well, I don’t understand how you can have it both ways. The president can’t not assert it, and you’ve testified that only the president can assert it. And, yet, I just don’t understand the legal basis for your refusal to answer,” said King.
When King asked Sessions for the legal basis for refusing to answer the committee’s questions, the attorney general said it would be premature to deny the president a choice regarding executive privilege.
“What we try to do, I think most cabinet officials, others that you questioned recently, officials before the committee, (is) protect the president’s right to do so,” said Sessions. “If it comes to a point where the issue is clear and there’s a dispute about it at some point, the president will either assert the privilege or not or some other privilege would be asserted.”
Sessions’ reasoning was similar to the testimony by national intelligence officials, who last week also refused to answer key questions before the same committee, even as they admitted they had no legal justification for that refusal. Legal experts told ThinkProgress that no version of executive privilege could have been invoked to prevent those officials from testifying.