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.

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