Democrats are clamoring for the resignation of Attorney General Jeff Sessions this week in the wake of his testimony before the Senate. I fail to see the good-faith basis for these calls, particularly after his testimony. Sessions shot down the claims of a third meeting with Russians that was the subject of breathless media reports for days. He also did an excellent job in explaining the steps that he took in recusing himself, including declining to play any role in the Russian investigation long before his formal recusal. He was also on good ground in declining to discuss conversations with the President in the Oval Office. Despite the shock expressed by Democratic Senators, he is in a long line of cabinet members declining to disclose such presidential communications. Nevertheless, the Democrats were right that you should have a formal invocation of executive privilege before declining to answer questions from Congress. However, as discussed in the column below, that is not uncommon.
Yet, the Administration had just gone through a controversial hearing with top intelligence officials refusing to answer such questions and clearly knew that these questions were coming. What did not make sense in the testimony of National Security Agency director Adm. Mike Rogers and National Intelligence Director Dan Coats was their refusal to answer on the ground that it would be “inappropriate.” That makes no sense in isolation without an indication that the questions will be reviewed and addressed by White House counsel in whether executive privilege will be invoked. The same problem arose with the testimony of Sessions (which was magnified by the fact that the White House has been pummeled over the earlier hearing).
The White House should have simply invoked the privilege with regard to presidential communications in the Oval Office in advance while stating an intention to try to answer as many of the questions of the Committee as possible within those long-standing constitutional confines. It is not unheard of to decline to answer questions pending review but Sessions did not promise to have questions reviewed. If he does not secure an invocation (or permission to disclose), he would simply be refusing to answer questions of Congress which constitutes contempt of Congress. This is not necessary. The White House Counsel should have sent a letter in advance of the hearing either invoking or waiving privilege. Alternatively, he needs to send a letter to address the outstanding questions. Congress has a right to have its questions answered unless the White House claims privilege. Even with an invocation, Congress can overcome the privilege with a proper showing to a court. The process requires a firm answer from the White House on the basis for refusing to answer questions and it cannot be a categorical denial based on unease or discomfort.
Here is the column in the Hill Newspaper.
The Senate hearing of Jeff Sessions this week had the look of an amateur Claude Rains convention with Democratic senators vying to show how each was more shocked than the other by the refusal of Sessions to discuss conversations held in the Oval Office with President Trump.
In reality, this is a familiar scene that has been played out repeatedly in history. Sessions is only the latest high-ranking officer to decline to discuss presidential communications. Both sides had valid points but, as usual, no one appeared interested in an accommodation rather than confrontation in the glare of the television lights.
Sessions was right constitutionally while the Democrats were right procedurally in the confrontation over the refusal to answer certain questions.
While executive privilege is not referenced in the Constitution, it has been asserted by presidents in some form since George Washington. The core purpose of executive privilege is to protect presidential communications to not only safeguard national security secrets but the deliberative process of the White House.
While President Eisenhower may have been the first to coin the phrase, all presidents have bristled at inquiries from Congress that would expose their deliberations with aides in addressing policies or matters of national concern. Presidential aides are uniformly warned not to breach that confidence and, if they do, they do so at their own peril. Eisenhower put it most succinctly when he said, “Any man who testifies as to the advice he gave me won’t be working for me that night.”
The Democratic senators repeatedly asked Sessions about conversations that he had with President Trump on the Russia investigation, Russian influence on our elections, the performance of former FBI director James Comey and other subjects that would fall squarely within the scope of past executive privilege assertions of prior administrations. While the senators contrasted the relative openness of Comey in his testimony, they ignored three salient facts.
First, President Trump has already effectively waived privilege by discussing his conversations with Comey in public. Second, Trump had not discussed his conversations with Sessions in public. Third, Comey himself did not discuss certain aspects of his prior conversations, and Comey has admitted to leaking information to the press on controversy (undermining his standing on the issue of confidentiality).
Sessions cited long-standing policies not to answer such questions. He was right. Prior executive branch witnesses have declined to answer such questions even without a prior executive privilege assertion. Indeed, while senators demanded to see such policies in writing, it is well known that such policies exist.
For example, the Justice Department often relies on a pair of 1982 memos written by Ted Olson, a respected former Justice official and powerhouse lawyer. The Reagan-era memos state that when a question is raised over a private communication with the president, “[t]he department head shall request the Congressional body to hold its request for the information in abeyance.” Moreover, as Sessions did in the hearing, the witness is told to “expressly indicate that the purpose of this request is to protect the privilege pending a presidential decision, and that the request itself does not constitute a claim of privilege.”
The fact is that a White House does not issue privilege assertions in advance every time a high-ranking official testifies on matters that were addressed within the White House. Officials try to answer questions as best as they can while declining some questions pending a review from the White House. It is a relatively common occurrence and the declination to answer is not a privilege assertion in its own right but a reservation of the question. Since a witness does not know how a specific question will be asked, it is common for a witness to reserve or decline a question out of concern over confidentiality.
Indeed, some common law based privileges like the deliberative process privilege (as opposed to the constitutionally-based executive privilege) have been raised to seek advice before answering. Sessions alluded to those common law privileges in addition to the executive privilege in his testimony. While common law privileges are routinely set aside in the face of a congressional investigatory or oversight demand, they have been raised in the past to allow for a pause to consider how to best answer an inquiry.
Faced with such a reservation of a question, Congress can demand an answer in the form of documents or written answers. If they are refused, Congress has the ability to first subpoena the White House and then go to court on a contempt sanction. This was exactly what was done during the Obama administration, which flagrantly violated the privilege in refusing to share information related to the Fast and Furious investigation.
The Obama administration refused to share information on the notorious and lethal program — withholding some 1,300 documents. At the time, some of us warned that the Obama privilege assertions was facially invalid. However, the administration forced Congress to hold former Attorney General Eric Holder in contempt — a singular and ignoble distinction for Holder. A court then ruled that President Obama had abused the privilege.
As shown during the Nixon administration, executive privilege is not absolute and can be overcome when there is a legitimate investigatory purpose, particularly a criminal investigation. That could prove determinative over any information withheld in this instance. Special Counsel Robert Mueller can demand such evidence and go to court to secure it. The committee can also do so. However, they will have to make a showing that they have a compelling need to overcome the interest of a president in confidentiality.
The questions asked of Sessions did not automatically trigger such an exception. Senators cannot simply presume a criminal purpose behind actions or statements as a general waiver of privilege. Indeed, Sessions testified that his support for terminating Comey was based on his view of Comey’s lack of discipline and adherence to core Departmental rules — a view obviously shared by Deputy Attorney General Rod Rosenstein in his formal memorandum.
History and past court precedent support the line drawn by Sessions, and I expect a court would uphold assertions of privilege over some of these questions. That is not to say that the Democratic senators did not have a valid procedural point. While it is relatively rare to have assertions of executive privilege before a hearing, this is no ordinary hearing. The administration was fully aware of the likely scope of the hearing and could have anticipated these questions.
Ideally, the White House counsel should have sent a letter asserting privilege over presidential communications in the Oval Office and describing the scope of that assertion. The letter would have ideally also suggested a way to accommodate such questions by narrowing the language. The political costs of such a letter may have been viewed as too steep for the White House but it would have been a better legal approach in this case.
Sessions more than once stated correctly that he was not asserting executive privilege — only the president can assert the privilege. Sessions indicated that he would not answer absent permission to reveal a presidential communication or an invocation barring such a disclosure. What he should have done is state his intention to raise the questions with the White House and confirm whether permission or an invocation would occur. There is no basis to simply refuse to answer questions categorically because they might be inappropriate. The policy that Sessions referenced is based on the assumption that such questions would be raised for review as part of this executive process.
In the end, the Sessions answers were neither unprecedented nor unfounded. That does not mean that the Senate cannot or should not demand answers. They can and will likely do so. However, there is a long-standing process by which such information can be extracted from a White House. As Winston Churchill once said, “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.