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.
Continue reading “Both Sessions and the Senators Were Right in the Fight Over Executive Privilege”
I had the honor of attending the investiture of Neil Gorsuch yesterday. It was an event steeped in history and the Court’s version of pomp and circumstance. I actually love the Court’s staid and understated style at such moments. The investiture is short and dignified in the courtroom with the reading of his his commission and Gorsuch taking his chair among the nine. President Donald Trump and the First Lady were present as were as array of dignitaries. The investiture was followed by a reception that was incredibly elegant with the justices in my favorite rooms in the Supreme Court with the famous portraits of prior Chief Justices. Deputy Attorney General Rod Rosenstein presented the commission to the Court which was read by the Supreme Court Clerk. There was a notable sound of whispers when the commission from Trump mentioned that Gorsuch was entitle to all of the “emoluments” of his office.
Washington was awaken this morning with our now regular sound of a tweet from the President. At 6:55 am, President Donald Trump blasted the report that Justice Department special counsel Robert Mueller is now investigating him for obstruction of justice. He called the whole thing based on a “phony story” — a likely dig at former FBI Director James Comey. I 
The Washington Post
There is an interesting article in the Washington Post entitled “
It is the presidential version of death by cop. Recently, I wrote a 
Below is my column in The Hill Newspaper on the legal analysis surrounding the disclosure by former FBI Director James Comey that he leaked damaging information against President Donald Trump in memos to the press. I have been surprised by the analysis which has been both artificially narrow or outright erroneous on the underlying legal issues. There was an early effort, for example, to judge the lawfulness of Comey’s actions solely on the basis of whether it was a crime. If these memos were government property, a claim for criminal conduct could be made but it would be unlikely under existing precedent. However, that does not mean that Comey’s conduct was either lawful or professional. Neither is true. In the rush to lionize Comey, the media is ignoring the fact that others have been punished for releasing non-public information to the media. Moreover, Comey and the FBI was tasked with finding leakers in the Administration. Yet, after being fired and publicly insulted by Trump, Comey became himself a leaker (despite a readily available and lawful avenue for disclosing the memos in a matter of weeks). I have stated from the outset that criminal charges are unlikely (and in my view unwarranted) as the facts currently stand with regard to this one leak. However, the leak was in my view unlawful and unprofessional. Comey allowed himself to be baited by Trump and proceeded to discard his professional judgment to strike back through a third party. His conduct should not be judged solely on the basis of whether it might land him in jail. Moreover, if the FBI wanted to pursue the violation, it could drag Comey to court and seek various remedies outlined in the agreement that all FBI agents sign as a condition of their employment.
A Philadelphia reporter, Colleen Campbell, 28, is not only out of job but perhaps a profession after a video of her berating police officers went viral. Campbell is shown below in cuffs after being removed from the Helium Comedy Club on Sunday night. She was asked to leave for disrupting comedian Craig Robinson by her loud whispering. It then went from bad to worse (Warning: the video below contains foul language)
Donald Trump has made his selection for the replacement of former Director James Comey. He notably did not select an FBI career person but did go with a former Assistant Attorney General. He is Christopher Wray.
One can certainly understand if the media is a tad confused. This week, Presidential Counselor Kellyanne Conway chided media for taking President Donald Trump’s tweets so seriously and denied that tweets are one of his preferred methods of communication. Shortly thereafter White House press secretary Sean Spicer reminded media that Trump’s tweets are “official statements” and thus serious articulations of policy.
Albany Law Professor Stephen Clark