Without executive privilege protections, intel chiefs may have to talk

They refused to answer questions about Trump’s conversations with Comey. But where does executive privilege come into play?

National Security Agency director Adm. Mike Rogers, right, sitting next to National Intelligence Director Dan Coats, left, during a Senate Intelligence Committee hearing. CREDIT: AP Photo/Susan Walsh
National Security Agency director Adm. Mike Rogers, right, sitting next to National Intelligence Director Dan Coats, left, during a Senate Intelligence Committee hearing. CREDIT: AP Photo/Susan Walsh

Questions over whether President Donald Trump attempted to obstruct the Federal Bureau of Investigation’s Russia probe could hinge on testimony from the nation’s top intelligence chiefs. But this week, they refused to answer key questions from the Senate Intelligence Committee, even as they admitted they had no legal justification for that refusal.

Numerous times during the hearing on Wednesday, the committee’s senators pressed on the issue of whether the intelligence chiefs were precluded from discussing conversations about Trump and former FBI Director James Comey. Specifically, senators tried to drill down on whether the officials were invoking presidential executive privilege protections.

At every turn, those called to testify hinted that executive privilege would stop them from sharing information, but never quite said President Trump had invoked such a protection. The questioning circled.

Sen. Martin Heinrich (D-NM) questioned acting Director of the Federal Bureau of Investigation Andrew McCabe about whether Comey had ever shared details of his conversations with Trump, and specifically whether Comey said “that the president had asked for his loyalty.”


McCabe declined to comment, saying that the matter fell within the scope of issues being investigated by the special counsel Robert Mueller.  “So you’re not invoking executive privilege and obviously it’s not classified,” observed Heinrich. “This is the oversight committee — why would it not be appropriate for you to share that conversation with us?”

McCabe responded that he would let Comey, who testified before the senate intelligence committee on Thursday, “speak for himself.”

“We certainly look forward to that, but I think your unwillingness to share that conversation is an issue,” said Heinrich.

“[W]hy are you not answering our questions?”

National Intelligence Director Dan Coats also deflected questions during the hearing about whether Trump asked him to intervene in or downplay the Russia inquiry. In response to a request for comment for the Washington Post story about the subject, he publicly stated that he never felt pressured to intervene or interfere in any way with intelligence matters or an ongoing investigation.


But in response to Heinrich’s inquiries regarding Trump, Coats testified that it was inappropriate to discuss his discussions with the president in open session.

“I think your unwillingness to answer a very basic question speaks volumes,” Heinrich told Coats.

But it was Senator Angus King (I-Maine) who had the most contentious exchange with the intelligence officials during Wednesday’s hearing—he grilled McCabe about his reasons for refusing to comment.

McCabe testified that it would be inappropriate for him to discuss issues that could potentially fall within the purview of Mueller’s investigation. King took particular umbrage with this, asking him whether Mueller’s investigation took precedence over the senate’s investigation.

“On the record I would like a legal justification for your refusal to answer the question today because I think it’s a straightforward question. It’s not involving discussions with the president, it’s involving discussions with Mr. Comey,” King told McCabe.

King also grilled the intelligence officials about whether the White House planned to invoke executive privilege regarding their testimony.


“Why are you not answering these questions? Is there an invocation by the president of the United States of executive privilege? Is there or not,” King said.

National Security Agency director Adm. Mike Rogers responded that no executive privilege had been invoked that he was aware of, to which King responded: “Then why are you not answering our questions?”

At a press conference on Thursday after Comey’s testimony, Trump’s personal lawyer Marc Kasowitz cited the testimony of Rogers and Coats as evidence of Trump’s innocence: “Admiral Rogers testified that the President never ‘directed [him] to do anything . . . illegal, immoral, unethical or inappropriate’ and never ‘pressured [him] to do so.’ Director Coates said the same thing.”

But by citing Trump’s interactions with Coats and Rogers, Kasowitz may have complicated the intelligence officials’ ability to avoid testifying publicly about the matter in the future as Congress investigates issues of obstruction of justice.

Rules governing executive privilege

Executive privilege is a legal doctrine that is not constitutionally guaranteed but that historically has protected a president’s communications.

“When privilege is claimed in relation to a conversation or communication directly involving the president, what we’re talking about is presidential communications privilege,” Ohio State University Moritz College of Law Professor Peter M. Shane told ThinkProgress in an email. “That’s what was at stake in U.S. v. Nixon and what would be at stake regarding any conversation or communication directly with Trump,” wrote Shane, an expert in constitutional law and administrative law, with a specialty in separation of powers law.

The protections afforded by executive privilege were delineated in a key decision by the U.S. Court of Appeals for the District of Columbia Circuit in 1997. That court established that executive privilege offers broad protections to communications between the president and his advisers, including discussions and written correspondences with the president.

However, the court also found that the presidential communications privilege can be overcome if a prosecutor seeking evidence can demonstrate that the evidence is critical, necessary, and cannot be found elsewhere.

“In holding that the privilege extends to communications authored by or solicited and received by presidential advisers and that a specified demonstration of need must be made even in regard to a grand jury subpoena, we are ever mindful of the dangers involved in cloaking governmental operations in secrecy and in placing obstacles in the path of the grand jury in its investigatory mission,” the court stated in its conclusion.

One form of executive 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, which the witnesses were being questioned about during the hearing, explained Laurence H. Tribe, a professor of constitutional law at Harvard Law School.

Would executive privilege apply in this case?

Via email, Tribe told ThinkProgress that of the various forms of executive privilege, none would apply to the intelligence officials.

The requirements for invoking executive privilege, wrote Tribe, are “steep, well-understood, and so far from being applicable” to Wednesday’s testimony from Coats, Rogers, McCabe, and Deputy Attorney General Rod Rosenstein.

On Twitter, Tribe praised King for pressing the intelligence officials to answer “clearly pertinent questions.”

“The truth is that no version of executive privilege could have been invoked, and none was invoked, either by the witnesses or by the president,” wrote Tribe via email. “Instead, when pressed by Senator King and others, each of the witnesses seemed to invoke the totally unfamiliar and indeed non-existent ‘I’d-rather-not-discuss-that-in-a-public-hearing’ privilege. It was contempt in all but name.”

“It was contempt in all but name.”

Past administrations have been careful in balancing the need to protect the confidentiality of communications and complying with congressional requests for information. Shane cited a memo issued by Ronald Reagan’s administration in 1982 that outlined how that administration handled congressional requests for information by asserting executive privilege in only “the most compelling circumstances” to protect the confidentiality of communications.

“Congressional requests for information shall be complied with as promptly and as fully as possible, unless it is determined that compliance raises a substantial question of executive privilege. A “substantial question of executive privilege” exists if disclosure of the information requested might significantly impair the national security (including the conduct of foreign relations), the deliberative processes of the Executive Branch or other aspects of the performance of the Executive Branch’s constitutional duties,” the Reagan memo outlined.

If Trump does invoke executive privilege and his intelligence officials decline to testify based on that protection, the senate intelligence committee or the full Senate could take the matter to court to compel those officials to testify, according to Shane.

So why hasn’t Trump invoked executive privilege?

The lack of cooperation from the intelligence officials did not sit well with Rep. Adam Schiff (D-CA) who told CBS This Morning on Thursday that the intentions behind Trump’s actions were key to understanding whether the president tried to obstruct justice. Congress will want details and statements that can shed light on the president’s intention, said Schiff.

“In this respect this is why we also cannot accept ‘I won’t answer the question’ from witnesses like Director Coats and Director Rogers,” Schiff told CBS. “Because if the president had similar conversations with other intelligence agency heads, that is further indication of what the president’s intent is.”

Prof. Shane told ThinkProgress in an email that it’s not unprecedented for an executive official, who is questioned about a conversation with the president, to defer responding until it’s determined whether the president wants to assert executive privilege.

However, a president’s public comments can waive executive privilege for a particular topic, such as the Comey conversations. Legal experts have told ThinkProgress that Trump’s public disclosures put into question whether his conversations with Comey are protected by presidential executive privilege.

At the press conference on Thursday, Kasowitz also outlined the president’s version of what transpired during Trump’s meetings with Comey, furthering the legal argument that the president cannot hide behind the cloak of executive privilege while at the same time publicly commenting on the conversations.

Rogers testified on Wednesday that no executive privilege had been invoked that he was aware of, but told senators that he felt it was inappropriate to respond to questions regarding Trump’s possible efforts to thwart the FBI’s Russia investigation.

“What you feel isn’t relevant, Admiral. What you feel isn’t the answer… Why are you not answering the questions? Is it an invocation of executive privilege? If there is, then let’s know about it. If there isn’t, answer the questions,” Sen. King told Rogers during the hearing.  Rogers responded that he stood by his comments: “I’m not interested in repeating myself, sir. And I don’t mean that in a contentious way.”  “Well, I do mean it in a contentious way,” King shot back. “I don’t understand why you’re not answering our questions.”