Jeff Sessions And The Trump Team Really Don't Want To Say 'Executive Privilege'

The attorney general struggled to articulate a legal basis for dodging questions.

WASHINGTON ― Attorney General Jeff Sessions repeatedly dodged questions on Tuesday about his conversations with President Donald Trump, broadly claiming at a Senate Intelligence Committee hearing that his talks with Trump were shielded by ill-defined protections. He argued that it would be inappropriate to speak publicly about confidential discussions with his boss, but struggled to explain the legal backing for his stance since Trump has not formally invoked executive privilege.

“I am protecting the right of the president to assert it if he chooses,” Sessions told members of the intelligence committee, adding that there may be other privileges the White House could invoke in the future. Conversations with the president are inherently confidential, he said, and it would be improper for him to waive that confidentiality without “clear approval” from Trump.

Executive privilege is a loosely defined concept meant to protect private communications between the president and his aides so that they can deliberate policy without fear that anything they said will later be made public. As-yet-unrevealed conversations between Sessions and Trump about firing then-FBI Director James Comey could fit under this description, although the president has not yet asserted executive privilege to shield those discussions. It would be harder to claim the protection for conversations that Trump has already tweeted or publicly spoken about.

The attorney general is not the first administration official to struggle with how to answer sensitive questions about talks with Trump. Senators berated Director of National Intelligence Dan Coats and National Security Agency Director Michael Rogers last week when they deflected questions about whether the president had asked them to intervene to block the Justice Department’s ongoing investigation into possible collusion between the Trump campaign team and Russian government officials. Rogers told lawmakers that he had asked the White House in advance if it was asserting executive privilege, but never received a response. That left him stumbling to avoid answering questions that could be embarrassing for the White House without any clear legal authority to do so.

Sessions appeared to be in the same position on Tuesday, forced to argue that he was protecting the president’s right to assert executive privilege in the future. That claim might hold up if the attorney general had been “ambushed by some unexpected question about internal conversations,” Julian Sanchez, a senior fellow at the Cato Institute, said. “It rings a bit false when it’s been obvious for some time that Sessions would be asked these questions.”

Senators from both parties appeared visibly frustrated with Sessions’ unwillingness to respond to their queries about conversations with Trump about Comey’s ouster and Sessions’ recusal from the Russia probe. Sen. Martin Heinrich (D-N.M.) accused the attorney general of “obstructing” the intelligence committee’s probe into Russian election interference. Committee Chairman Richard Burr (R-N.C.) asked Sessions to confer with the White House to see if he could provide follow-up responses.

“Declining to answer questions at a congressional hearing about confidential conversations with the president is a long-standing executive-branch-wide practice,” a Justice Department spokesman told HuffPost. “The basis for this historical practice is laid out in the 1982 memos from President Reagan and then-Assistant Attorney General [Theodore] Olson.”

Reagan’s 1982 memo appears to partially support Sessions’ argument argument that he is protecting Trump’s right to invoke privilege in the future.

“Pending a final Presidential decision on the matter, the Department Head shall request the Congressional body to hold its request for the information in abeyance,” Reagan wrote. “The Department Head shall 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.”

But Olson, who was head of the Justice Department’s Office of Legal Counsel at the time, made clear in his memo that executive privilege was intended to be applied narrowly rather than to serve as a blanket shield against public disclosure.

“Factual, nonsensitive materials — communications from the Attorney General which do not contain advice, recommendations, tentative legal judgements, drafts of documents, or other material reflecting deliberative or policymaking process — do not fall within the scope of materials for which executive privilege may be claimed as a basis of nondisclosure,” Olson wrote.

Part of the reason the Trump White House has avoided formally invoking executive privilege could be the optics of the situation. As a private citizen and a presidential candidate, Trump frequently criticized the Obama administration for invoking executive privilege and aides to former Secretary of State Hillary Clinton for invoking their Fifth Amendment right to remain silent to avoid self-incrimination.

Invoking executive privilege is also a politically unpopular move because it conjures up President Richard Nixon’s attempt to use it to conceal wrongdoing. When the Obama administration rejected a congressional request for then-deputy national security adviser Ben Rhodes to testify publicly about the Iran nuclear deal negotiations, then-White House Counsel W. Neil Eggleston argued that such testimony would threaten “the independence and the autonomy of the president, as well as his ability to receive candid advice and counsel.” But Eggleston still stopped short of explicitly mentioning executive privilege.

Trump has repeatedly dismissed the Justice Department’s Russia investigation as “fake news.” Asserting executive privilege and blocking government officials from publicly testifying on conversations related to the probe risks suggesting that the White House has something to hide.

“The obvious rationale for [not invoking executive privilege] would be that Trump doesn’t want his unfiltered remarks about the Russia probe repeated publicly, but doesn’t want to accept responsibility for concealing them,” Sanchez told HuffPost. “Because that raises the obvious question: If Trump is so insistent that he’s never asked anyone to back off the investigation, why would he block his subordinates from clarifying whether that’s true?”

The White House did not respond to a question about whether Trump plans to invoke executive privilege.

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