That did not take long. Director of National Intelligence Dan Coats and National Security Agency Director Adm. Mike Rogers met with Special Counsel Robert Mueller to discuss the subjects that they declined to discuss with Congress. Congress then released the information. It now appears that congressional briefings from the Special Counsel are proxy press conferences in this increasingly strange process. As expected, Coats and Rogers admitted that Trump did in fact ask them to tell the public that there was no evidence of collusion between his campaign and the Russians. That was, again, an inappropriate and ill-considered request. However, the disclosure raises a far more worrisome questions with regard to the role of White House Counsel Donald F. “Don” McGahn II. The two intelligence chiefs said that they took anticipated the questions over their conversations and asked McGahn if there was an executive privilege assertion. McGahn simply never responded. That is a highly disturbing account. Executive privilege is not some tactical toy. It has been defended as a core protection of inherent presidential powers. No high ranking officials should be sent into a committee without a clear understanding of the status of information or conversations relevant to congressional inquiries. The non-response was either negligence by the White House Counsel or, more likely and more seriously, a conscious decision to avoid the politically risky decision of either allowing answers or publicly preventing answers.
The failure of the White House counsel to answer the question led to the embarrassing and ham handed responses by Rogers and Coats before the Committee where they did not claim executive privilege but still refused to answer the questions. I have written that it is not uncommon for witnesses to reserve answers pending review of such questions for either permission to answer or a formal invocation of privilege. However, the two witnesses in this case clearly raised the issue in anticipation with the White House. More importantly, there has been indication that Rogers or Coats or Attorney General Jeff Sessions have indicated that they will inform the Committee on a final answer from McGahn on the status of the information. Instead, the White House put the witnesses in the untenable position of having to either risk a disclosure of privilege presidential communications or risk the ire (and possible contempt) before the Committee. Few high-ranking officials would speak without a direct assurance that privilege has been waived. Frankly, a better approach would have been to say that they had raised the matter with the White House but that the White House had not made any decision on the issue of privilege.
Instead, Rogers testified that “In the three-plus years that I have been the director of the National Security Agency, to the best of my recollection, I have never been directed to do anything I believe to be illegal, immoral, unethical or inappropriate, and to the best of my recollection during that same period of service I do not recall ever feeling pressured to do so.” Coats gave a more nuanced answer: “In my time of service, which is interacting with the President of the United States or anybody in his administration, I have never been pressured — I have never felt pressured — to intervene or interfere in any way with shaping intelligence in a political way or in relation to an ongoing investigation.” The answer about “feeling pressured” stood out as opposed to a denial of being asked. It may have not been intended in that way but that is the problem when the White House leaves it to witnesses to free lance in the area of executive privilege.
In the end, the leaked statements do not materially change the profile of the investigation. Trump still has an obvious defense that would work against an obstruction charge. He had been told that his subordinates that there was no evidence of collusion. Indeed, before his notorious meeting with Comey, Comey reportedly told Congress that there was no such evidence and Trump was not a target. Trump could easily say he wanted that information to be disclosed to the public because the swirling rumors were hampering his new Administration.
The more alarming information rests with the process (and failure) of the White House in addressing executive privilege claims. For Coats and Rogers, the White House put them between a rock and a hard place. The question is whether the hard place is willing push the question of contempt if the rock is refusing to answer the question of privilege.