Both Sessions and the Senators Were Right in the Fight Over Executive Privilege

jeff_sessions_official_portraitDemocrats 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.

Principal_Cast_in_Casablanca_Trailer_cropThe 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.

220px-Eisenhower_in_the_Oval_OfficeWhile 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.

ericholderThe 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.

65 thoughts on “Both Sessions and the Senators Were Right in the Fight Over Executive Privilege

  1. Cynthia McKinney: U.S. Lawmakers FORCED to Support Israel!

    Former Congresswoman Cynthia McKinney talks with PressTV about how the Israeli Lobby owns both the Congress and the Senate and how AIPAC and the ADL took her out.

  2. Or one could say the alt right revolution of Trump Bannon went too far and the reaction against their tactics has been bigger than they could have ever imagined.

    • To scare us. They have more Americans and want us to worry about their condition when they get home, if they get home. What better torture for families. NK is the equal of Hitler’s Germany. That pig is probably reading, or being read to, the horrible actions of Hitler’s. Certainly the UN should condemn North Korea.

      I would like Trump to announce all Americans back, completely normal by ________. No? Then we blockade any goods to North Korea. China by land, the US by sea.

  3. Well, if Trump had invoked his privilege in advance of Session’s testimony, I wonder, oh I just wonder what the Main Stream Media headlines would have been???

    COVERUP! TRUMP KEEPS SESSIONS FROM TESTIFYING ABOUT RUSSIAN DEALINGS!

    TRUMP SHOULD BE IMPEACHED FOR INVOKING PRIVILEGE!

    TRUMP CHANNELS HIS INNER NIXON!

    TRUMP OBSTRUCTS JUSTICE IN SENATE HEARINGS!

    That is the kind of crap we would have seen, and no matter that Obama invoked his privilege on several occasions. Because the Main Stream Media is not independent. It is mostly just the propaganda arm of the Democratic Party.

    So, I am happy with how Sessions handled it.

    Squeeky Fromm
    Girl Reporter

  4. President Trump won the constitutional election in 2016.

    President Trump will now have to win the election against

    the denizens of the “swamp” in 2017.

    The People will make the choice between Trump and

    the DINO/RINO, liberal, ruling class “deep state.”

    Voters will support President Trump or

    allow this coup d’etat in America to succeed.

    President Trump better put Steve Bannon and

    Kellyanne Conway back out on the campaign trail soon.

  5. They don’t call it the “deep state” because it is shallow.

    The “deep state” has a deep bench.

    The swamp is deep and Trump has a whole lot of draining to do.

    The liberal, DINO/RINO ruling class has been investigating Donald Trump

    since he and Melania walked down the staircase at Trump Tower and

    declared Trump’s candidacy for President (attribution – Rush Limbaugh).

    The current “witch hunt” was ostensibly begun to reveal collusion

    between Trump and Russia during the election. No evidence was found

    in this two-year vetting and investigation of Trump by the democrats, republicans,

    Obama, CIA, NSA, FBI, CNN, PMSNBC, HLN, FOX, NBC,CBS, ABC, NPR, AP, REUTERS and

    every other outlet (print, radio, tv) in the media, so now the well respected and honorable

    man of integrity, Robert Mueller, is going full steam ahead to investigate Jared Kushner.

    After Kushner, Mueller will open an investigation of Ivanka then the maid and then the butler

    ad infinitum. The investigation’s focus and scope were lost long ago morphing from jurisprudence to

    comedy. If Mueller and Rosenstein were, in fact, honorable men of integrity, they would declare

    the investigation closed having found NO evidence of Trump/Russia collusion during the election.

    The inmates have taken over the asylum.

  6. This is all a bunch of apCray. How was I to know, she was with the Russians too?
    That is a good question. Every Trump, Obama, Clinton or Bushie “aide”, “advisor”, “supporter” should ask that question if they ever talked to anybody.
    Google : Warren Zevon, and his songs.

      • Sessions? no way. Sessions came across as honest and sincere. Dems came off bullying. If Trump doesn’t fire Mueller he can kiss off the next year and a half. The beloved by all, Constitution, isn’t beloved. Only when these elite wat it to. With a country full of lawyers couldn’t one be found without D.C. roots? It is a witch hunt and should be stopped. Telling people not to believe anonymous leaks is not enough. Mueller’s army cannot be impartial and the voters should have impartial jurists. I assume Hillary and/or Bill won’t consider coming out about this. Did you see the look on Putin’s face when interviewed?

  7. Socialist Progressives do what they always do which is play stupid. That tired old impeachment garbage as a response could have been written by anyone two weeks prior. So….two weeks agso tghey wee going to file an impeachment charge. Where is it? that’s going to be my answer to another set of playing stupid nonsense.

  8. He should resign because he can’t remember anything. He can show up the next day and say he doesn’t remember resigning.

    • Give me a break, Patriot! Why do you waste time with this nonsense? Did you know that after Hussein’s capture scientists dug up evidence WMD materials they had buried at home? To stop any WMD being completed. And, I think I heard we found what was in those trucks crossing into Syria before we invaded. War material. I still wonder why we didn’t bomb those trucks. If anyone knows, let me know. I also would like to see what Senators reviewed before invading Iraq. How do you find evidence to approve an invasion and when it gets messy deny what you said you saw.

      I have decided the “august” body, the Senate, is full of politicians who could care less about right and wrong.

      • Muhammar Qaddafi and Saddam Hussein were begging for mercy and promising anything and everything in return; to be left in power for regional stability. Imagine the Iraq War never having happened. Wow! Wouldn’t that have been great? The intelligent course was not taken. The intelligent course would have been to use that leverage, keep U.S forces at home and employ the rehabilitated Libya and Iraq as force multipliers. America is broke and Libya and Iraq are basket cases of terrorism. George W. Bush was a fool for the neocons, a leader of fools and an unmitigated disaster for America.

          • Bush, Clinton; what’s the difference? Did you notice any difference between the Bush and Obama administrations regarding endless war in the Middle East?

            • George,…
              I thought for the sake of accuracy I’d point out that Bush was out of office when we toppled Kaddafi.
              t, fine.lump them all together.
              There is no point wasting time in answering your “what’s the difference” if you don’t even know basic and recent historicalfacts.

        • But then George the military industrial complex couldn’t have spent BILLIONS of tax payer dollars in these conflcits. And it also was a helpful diversion from issues at home – growing inequality, joblessness, crumbling infrastructure, etc. etc.. Khaddafi and Hussein both made the mistake of wanting to go off the US/oil dollar for trading.

  9. Unless someone can show me the difference between executive privilege and other testimonial privileges, i.e., doctor/patient, lawyer/client, I fail to see why an express invocation by the holder of the privilege is necessary before the person to whom the privilege binds can refuse to disclose the confidential communications. AG Sessions was bound not to disclose privileged communications with the President unless the President waives the privilege. If there is no waiver, there can be no disclosure. There does not need to be a formal invocation of the privilege.

    It’s like the Miranda warnings. An accused in a criminal proceeding has a right not to incriminate himself or herself. There must be an affirmative waiver of the privilege before the police can lawfully elicit statements from the accused. The police cannot fail to administer Miranda warnings and then say “Well, the accused never said he did not want to answer questions” and get away with it.

    Think about it this way: you go to see a doctor; the doctor treats you; that weekend the doc is at the golf club and a neighbor of yours asks the doc what happened at your visit. You have never invoked the doctor/patient privilege. Is the doctor allowed to tell your neighbor about your confidences which he learned during your office visit? I doubt it.

      • For that matter, why couldn’t any accused criminal claim that his purported offense was discussed in a purported conversation with the President, and therefore he doesn’t have to answer any questions …..

      • Lois Lerner didn’t feel like answering. Jeff Sessions protected a valid privilege. Questions propounded to Session directly solicited answers that involved what he told the President and what the President told him. Those communications directly implicated the executive privilege. There was no way in which Sessions could have answered the questions without violating the privilege.

    • Thanks to Mr. Turley for the provocative historical perspective and to Vince for his excellent comment.

      Vince’s analogy of the AG’s communications with the president as being part and parcel of the executive privilege, whether or not the privilege has been invoked, or to the evidentiary privilege of an attorney to his client, isn’t appropriate simply from a policy perspective. The AG’s duty is first and foremost to the public and not to the president. The president has private counsel, and it isn’t the Attorney General, who is the top law enforcement officer in the US. The People are the AG’s client.

      The idea that the AG should be loyal to the president as an attorney is to his or her client or a doctor or psychotherapist is to his or her patient is based on the president’s unfettered communication with the AG without fear of affectation. Right? How is Congress to properly carry out its regulatory function when the AG’s communications with the president are inaccessible?

      “[T]he functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and . . . the department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year.” (McGrain v. Daughtery (1927) 273 US 135, 178.)

      The assertion of an almost plenary power of executive privilege in the post-WWII era hasn’t always been the case: McGrain v. Daughtery “ratified in sweeping terms, the power of Congress to inquire into the administration of an executive department and to sift charges of malfeasance in such administration.”

      https://www.law.cornell.edu/anncon/html/art1frag9_user.html#fnb176 [Investigations of Conduct of Executive Department]

      If it weren’t for bad conduct, what should the president have to fear from the legislative branch’s access to such information (even in closed session where appropriate) when it is Congress that has the power to investigate, and it enacts the laws the president has sworn to enforce? They’re all on the same team, or at least they’re supposed to be. Aren’t they? In other words, the current policy inherently creates division between the two political branches, and there’s no good-faith reason for continuing it.

      That’s why many are correctly, in my opinion, objecting to it, despite past presidents claiming it. It needs to stop, because it inhibits congressional oversight, it gives the Executive too much power, and power corrupts in a republic.

      • Like other testimonial privileges, the executive privilege exists to permit unfettered communication in furtherance of certain ends. In the case of the executive privilege, the end is a smooth functioning of the executive branch, certainly a legitimate goal. Unless the privilege extends to other members of the executive branch, like the AG, those ends cannot be met. Furthermore, if the privilege does not extend to other members of the executive branch, to whom does the privilege extend. If cabinet members can be compelled to disclose confidential matters, there is no privilege at all.

        • Vince,
          “If cabinet members can be compelled to disclose confidential matters, there is no privilege at all.”

          That is a concern. The balance of power is leaning heavily towards the executive. While the AG is selected by the president and offers council, he is supposed to serve the people, I thought, not shield the president from investigations into possible, even likely wrongdoing. What is fair?

      • Steve,
        Very well said.

        “That’s why many are correctly, in my opinion, objecting to it, despite past presidents claiming it. It needs to stop, because it inhibits congressional oversight, it gives the Executive too much power, and power corrupts in a republic.”

        It does need to stop. It is this observation that makes me suspect, again, that Trump is doing and saying things to elicit particular responses.

        Scott Adams has made some astute observations about Trump. Trump’s 1990 Playboy interview also provides interesting clues.

  10. Ofcourse democrats can never be wrong and there was no crime big enough for mr turley that would have warranted impeachmebt of Obama

      • No, he just ignored the Constitution and used his “pen” for Executive Orders. He wasn’t impeached because he was Black.

        • Wait.

          The Constitution says the president must be a “natural born citizen.”

          The Jay/Washington letter of July, 1787, raised the presidential requirement from “citizen” to “natural born citizen” to place a “strong check” against foreign allegiances by the commander-in-chair.

          The definition of “;natural born citizen” in the Law of Nations, which was, “…continually in the hands of the Members of our Congress sitting…” concludes with this statement:

          “…in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

          Obama never was and never will be eligible for the presidency because he is the son of a foreign citizen.

        • Exactly. He was allowed to do whatever he wanted with no objection because “raaaccciiisstttt”!!!!!!

  11. This blog is one of the alst bastions of straight reporting. JT is not a fan of Trump, to put it mildly, but he is able to put his emotions aside and give us facts. Thanks!

      • mespo, Good find w/ the 50% approval.I have some folks I look to as how the winds are shifting. My daughter and bride are 2 people who are well informed and intellectually honest. My daughter voted for Obama in 2008, my bride both times. My daughter voted for Trump, my bride for Johnson. They are both sickened by what is happening. My bride, who is even tempered, has many friends of the ilk that used to run this place. This morning she yelled @ her computer as a Facebook friend spewed hatred @ Steve Scalise, pointing out a black, lesbian helped save his life. My bride was disgusted. mespo, she’s quite liberal but can’t stand all this horsesh!t and hatred coming from the left. My daughter has seen the hypocrisy for a while now.

        • Nick: I have those people too. After the assassination efforts this week, my jaw dropped at this email from a long-time colleague practicing in Chicago. It actually kind of pained me for him – I can not really imagine what it must be like for them, moderate Democrats who are good solid Americans.

          “I know I speak for thousands, likely millions, when I say I have gone from being a “lifelong Democrat” to absolutely despising the Democrats. Fortunately not all of us were poisoned beyond rehabilitation. The “left” is now indistinguishable from the crazies in third world shithole governments. Count me in on the Trump train – I have concluded he is indeed the most sane voice we’ve heard in decades”

          • INlegaleagle,

            I am reminded of the Twilight Zone episode, “Eye of the Beholder,” which you can view at the link below.

            The protagonist, to her horror, suddenly discovers that she is living in an entirely different reality.

            As a hospital patent whose bandages are finally removed, she finds that her beautiful human face is

            shocking and repulsive in the “real” world of pig-faced humanoids.

        • I think the problem is what happened at UC Davis.
          Students were peppered sprayed by people that were told what to do by the administrators.
          At some point we all recognize we are someone’s stooge based on our gullibility to be assuaged by the prevailing PR that a particular industry connects to our phantom dreams of a better path.
          The Left is now just seeing what kind of abuse the PR wing of Neoliberalism has been providing and is continuing to double down in the reactionary contempt displayed by your average 5 year olds.

          • Thanks, mespo. She is much smarter than me. However, she is the consummate Midwesterner, always trying to avoid conflict. If someone spews hate in her presence, she will diplomatically call them on it. But, she avoids online conflict. I’m just a bit different!

            • I’m hopeful it will be ideas. We need to get the MSM out of the picture if they don’t straighten up their act. I put a lot of the blame for the shooting in Virginia on their heads.

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