Tuesday, June 13, 2017

Pre-emptive Executive Privilege: Examining Committee Questions And Sessions' Answers On Why He Can't Disclose What The President Said To Him In Private

This was going to be several quick reactions to a few points that struck me at the Sessions' hearing today in the Senate Select Committee on Intelligence.  As I started this post I used the excuse of no transcripts to be a little looser than normal and to just write from memory.  But then, like I usually do when I make comments like that, I checked to see if there were transcripts yet.  I found that Politico has "running transcripts" here.  So I decided I'd just focus on the two main reasons that Sessions invoked for not answering certain questions:
1.  Executive privilege - which he acknowledged the president hadn't invoked, but claimed he was going to give the chance to do so after the fact.  
2.  An unspecified rule at DOJ that doesn't allow him to disclose what was said in his private meetings with the president.  

It turns out that Politico's running transcripts weren't complete yet.  At my first went to the site they got to Sen. Heinrich's questions and ended.  I started writing, but then saw it ended at Sen. Heinrich's questions.   When I reloaded the page it got to Sen. Manchin's questions.  The third time it got to Sen. Cotton - who read out answers for Sessions rather than ask him questions. It took longer to get through the Sen. Harris questions which I needed because she pressed him pretty hard on what 'appropriate' means and then for specific citation and copies of the rule he was citing.    The transcripts seem  pretty good, though like most transcripts there are lots of little typos, so keep that in mind.  

Pre-emptive Executive Privilige  And "A Long-Standing Policy"

First was this discussion with Sen. Warner (D-Virginia).  Here, he says he's not claiming executive privilege because that's the president's power. I'm just giving you the relevant parts.  Sessions is claiming "the communications rule" which he later explains as 'there are privileges of communications.'
SESSIONS: Mr. Chairman, I'm not able to comment on conversations with high officials within the white house. That would be a violation of the communications rule that I have to --
WARNER: Just so I can understand, is the basis of that unwilling to answer based on executive privilege?
SESSIONS: It's a long standing policy. The department of justice not to comment on conversations that the attorney general had with the president of the united States for confidential reasons that rounded in the coequal branch.
WARNER: Just so I understand, is that mean you claim executive privilege?
SESSIONS: I'm not claiming executive privilege because that's the president's power and I have no power there.
WARNER: What about conversations with other Department of Justice or White House officials about potential pardons? Not the president, sir.
SESSIONS: Without in any way suggesting I had any conversations concerning pardons, totally apart from that, there are privileges of communication within the department of justice that we share all of us do. We have a right to have full and robust debate within the Department of Justice and encourage people to speak up and argue cases on different sides. Those arguments are not -- historically we have seen they shouldn't be revealed.

Part 2 in exchange with Sen. Heinrich (D-NM)

SEN. MARTIN HEINRICH: Attorney General Sessions, has the president ever expressed his frustration to you regarding your decision to recuse yourself?
SESSIONS: Senator Heinrich, I'm not able to share with this committee private communications --
HEINRICH: You're invoking executive privilege.
SESSIONS: I'm not able to invoke executive privilege. That's the president's prerogative.
HEINRICH: My understanding is that you took an oath, you raised your right hand here today and you said that you would solemnly tell the truth, the whole truth and nothing but the truth. And now you're not answering questions. You're impeding this investigation, so my understanding of the legal standard is that you either answer the question. That's the best outcome. You say this is classified, can't answer it here. I'll answer it in closed session. That's bucket number two.
Bucket number three is to say I'm invoking executive privilege. There is no appropriateness bucket. It is not a legal standard. Can you tell me why what are these long-standing DOJ rules that protect conversations made in the executive without invoking executive privilege?

SESSIONS: Senator, I'm protecting the president's constitutional right by not giving it away before he has a chance to review it.
HEINRICH: You can't have it both ways.
SESSIONS: And second I am telling the truth in answering your question and saying it's a long-standing policy of the department of justice to make sure that the president has full opportunity to decide these issues.
HEINRICH: Can you share those policies with us. Are they written down at the Department of Justice?
SESSIONS: I believe they are.
HEINRICH: This is the appropriateness legal standard for not answering congressional inquiries.
SESSIONS: That's my judgment that it would be inappropriate for me to answer and reveal private conversations with the president when he has not had a full opportunity to review the questions and to make a decision on whether or not to approve such an answer, one. There are also other privileges that could be invoked. One of the things deals with the investigation of the special counsel as other --
HEINRICH: We're not asking questions about that investigation. If I wanted to ask questions about that investigation, I'd ask those of Rod Rosenstein. I'm asking about your personal knowledge from this committee which has a constitutional obligation to get to the bottom of this. There are two investigations here. There is a special counsel investigation. There is also a congressional investigation, and you are obstructing that congressional delegation -- investigation by not answering these questions, and I think your silence, like the silence of Director Coats, like the silence of Admiral Rogers speaks volumes.
SESSIONS: I would say that I have consulted with senior career attorneys in the department.
HEINRICH: I suspect you have.
SESSIONS: And they believe this is consistent with my duties.

I'd note that Trump is reported as saying he wouldn't invoke executive privilege to block Comey's testimony.  But I can't find the same sort of claim about Sessions' testimony.
President Trump will not claim executive privilege to block former FBI Director James Comey from testifying before Congress later this week, the White House confirmed on Monday.
At the daily White House press briefing, Deputy Press Secretary Sarah Huckabee Sanders told reporters the president wants a “thorough investigation of facts,” in reference to Comey’s testimony before the Senate Intelligence Committee this Thursday.
But, if he really wants a 'thorough investigation of facts' one would think that not invoking executive privilege would apply to Sessions' appearance as well.

Then there's this exchange with Sen. King (I-Maine):
KING: I respect your willingness to be here. You testified a few minutes ago I'm not able to invoke executive privilege. That's up to the president. Has the president invoked executive privilege in the case of your testimony here today?
SESSIONS: He has not.
KING: Then what is the basis of your refusal to answer these questions?
SESSIONS: Senator king, the president has a constitutional --
KING: I understand that, but the president hasn't asserted that. You said you don't have the power to exert executive privilege so what is the legal basis for your refusal to answer the questions?
SESSIONS: I'm protecting the right of the president to assert it if he chooses and there may be other privileges that could apply in this circumstance.
KING: Well, I don't understand how you can have it both ways. The president can't not assert it, and you've testified that only the president can assert it and yet I just don't understand the legal basis for your refusal to answer.
SESSIONS: What we try to do, I think most cabinet officials, others that you questioned recently, officials before the committee, protect the president's right to do so. If it comes to a point where the issue is clear and there's a dispute about it, at some point the president will either assert the privilege or not or some other privilege would be asserted, but at this point I believe it's premature
KING: You're asserting a privilege.
SESSIONS: It would be premature for me to deny the president a full and intelligent choice about executive privilege.
That's not necessary at this point.
So at this point he's
1.  Saying he can't tell them what he said in private discussion with the president because he needs to reserve the president's right to invoke executive privilege
2.  And there may be other privileges (that he may not know about yet, but you can be sure his DOJ lawyers are now scouring the rules to find.)

Nobody brought up the fact that Trump waived executive privilege for Comey because he wanted to get the facts out as I mentioned just before this section on Sen. King's questions.

More King questions involving executive privilege:
KING: Did the question of the Russia investigation in the firing of James Comey come up?
SESSIONS: I cannot answer that because it was a communication by the president or if any such occurred it would be a communication that he has not waived.
KING: But he has not asserted the executive privilege.
SESSIONS: He's not exerted executive privilege.
He seems to have decided that this pre-emptive executive privilege is a better grounding than his assertion about a rule protecting his conversations with the president.  It also sounds like he did have such a conversation.  I say that because first he says I cannot answer because "it was a communication by the president."  Then he seems to catch himself and say "or if any such occurred."

Then Sen. Manchin (D- WV) asks if executive privilege would cover non-public hearings.  No, Sessions says, it's not waived in closed session.
MANCHIN: I know it's been asked of you things [I told you the transcripts had some problems], your executive privilege in protecting the president. I understand that, but also when we had Mr. Comey here, you know, he couldn't answer a lot of things in open session. He agreed to go into a closed session. Would you be able to go in a closed session? Would it change your answers to us or your ability to speak more frankly on some things we would want to know.
SESSIONS: Senator Manchin, I'm not sure. The executive privilege is not waived by going in camera or in closed session. It may be that one of the concerns is that when you have an investigation ongoing as the special counsel does, it's often very problematic to have persons, you know, not cooperating with that counsel in the conduct of the investigation, which way or may not be a factor in going into closed session.
He's using the executive privilege grounds here, not the "longstanding" DOJ rule.

Then Sen. Harris (D-CA) got to ask questions.  She was asking if he took any notes or had other written stuff that he could refresh his memory with and send them to the committee.  So now he's looking for rules that cover what documents (rather than oral communications with the president) can be disclosed.
HARRIS: Sir, will you provide the committee with the notes that you did maintain?
SESSIONS: As appropriate I will supply the committee with documents.
HARRIS: Can you please tell me what you mean when you say appropriate?
SESSIONS: I would have to consult with lawyers in the department who know the proper procedure before disclosing documents that are held within the Department of Justice. I'm not able to make that opinion today.
HARRIS: Sir, I'm sure you prepared for this hearing today and most of the questions that have been presented to you were predictable. So my question to you is did you then review with the lawyers of your department if you as the top lawyer are unaware what the law is regarding what you can share with us and what you cannot share with us, what is privileged and what is not privileged.
SESSIONS: We discussed the basic parameters of testimony. I frankly have not discussed documentary disclosure rules.
HARRIS: Will you make a commitment to this committee that you will share any written correspondence, be they your calendars, records, notes, e-mails or anything that has been reduced at any point in time in writing to this committee where legally you actually have an obligation to do so.
SESSIONS: I will commit to reviewing the rules of the department and as and when that issue is raised to respond appropriately.
But then after questions about other topics, Harris got back to the policy rule that kept Sessions citing that prevented him from answering questions:

HARRIS: And you referred to a long-standing DOJ policy. Can you tell us what policy it is you're talking about.
SESSIONS: Well, I think most cabinet people as the witnesses, you had before you earlier, those individuals declined to comment, because we're all about conversations with the president --
HARRIS: Sir, I'm just asking you about the DOJ policy you've referred to.
SESSIONS: A long-standing policy, a policy that goes beyond just the attorney general.
HARRIS: Is that policy in writing somewhere?
SESSIONS: I think so.
HARRIS: So did you not consult it before you came before this committee knowing we would ask you questions about that?
SESSIONS: Well, we talked about it. The policy is based --
HARRIS: Did you ask that it would be shown to you?
SESSIONS: The policy is based on the principle that the president --
HARRIS: Sir, I'm not asking about the principle. I'm asking when you would be asked these questions --
SESSION: Well, I'm unable to answer the quest--
HARRIS: and you would rely on that policy --
SEN. JOHN MCCAIN: Chairman --
HARRIS: Did you not ask your staff to show you the policy that would be the basis for you refusing to answer the majority --
MCCAIN: The witness should be allowed to answer the question. [I'd note he wasn't answering the question and she was redirecting him to the actual question.]
BURR: Senators will allow the chair to control the hearing. Senator Harris, let him answer.
HARRIS: Please do.
BURR: Thank you.
SESSIONS: We talked about it, and we talked about the real principle that's at stake is one that I have some appreciation for as far as having spent 15 years in the department of Justice, 12 as United States attorney, and that principle is that the Constitution provides the head of the Executive Branch certain privileges and that members -- one of them is confidentiality of communications, and it is improper for agents of any of the department -- any departments in the Executive Branch to waive that privilege without a clear approval of the President.
HARRIS: Mr. Chairman. I have asked --
SESSIONS: And that's the situation we're in.
HARRIS: I asked for a yes or no. Did you ask --
SESSIONS: The answer is yes, I consulted.
BURR: The senator's time has expired.
HARRIS: Apparently not.
So, he refused to answer her question whether he talked about the rules that governed his disclosure.  McCain jumped in to tell her to let him answer the question, though he was raising other issues and she was trying to refocus him.  She had limited time and was trying to get the answer before her time ran out.  Sessions was running out the clock.  And he did.  But she made it clear that he couldn't tell her what rule he was supposedly following.  Though now his department has time to find one.

It's interesting because to stall Sen. Harris, he spoke about principles, yet when he answered Sen. Collins  (R-Maine) on something else he said,  he doesn't discuss hypotheticals.  Principles are not hypotheticals, but the way you answer a hypothetical is to apply principles.
SESSIONS: Well, I would just say this, Senator Collins. I don't think it's appropriate to deal with those kind of hypotheticals. I have to deal in actual issues. I would respectfully not comment on that.
Harris was asking for actual rules, not principles or hypotheticals.

While he couldn't tell the committee the specific rule about confidential information that prevented his telling the committee about anything about his private conversations with the president, he was very well prepared when asked about the rules around recusal:
BURR: On March 2nd, 2017, you recused yourself in the investigation being conducted by the FBI and the Department of Justice. What are the specific reasons that you chose to recuse yourself?
SESSIONS: The specific reason, chairman, is a cfr code of federal regulations put out by the Department of Justice. Part of the Department of Justice rules and it says this. I will read from it. 28 cfr 45.2. Unless authorized, no employee shall participate in a criminal investigation or prosecution if he had a personal or political relationship with any person involved in the conduct of an investigation that goes on to say for political campaign and it says if you have a close identification with an elected official or candidate arising from service as a principal adviser, you should not participate in an investigation of that campaign. Many have suggested that my recusal is because I felt I was a subject of the investigation myself, I may have done something wrong. This is the reason I recused myself: I felt I was required to under the rules of the Department of Justice and as a leader of the Department of Justice, I should comply with the rules obviously. 
So, I think that is most if not all of the testimony on the grounds of his refusal to disclose what passed between him and the president - mainly, if I recall correctly - about what was said about the Comey firing.

Ive called what Sessions invoked 'pre-emptive executive' session, because I was thinking about how he was invoking it before the president did.  I guess we could also think about this as 'retroactive executive session' because he's giving the chance to invoke it after the hearing rather than before.

There are lots of other things to remark on about today's hearings, but this is already long enough - just focused on the reasons Sessions used to avoid answering some questions.

[UPDATE just after posting:  I found a tweet that called this "Schrödinger's Executive Privilege" and responders are adding other names for it.]


  1. What about "presumptive executive privilege"? The argument Sessions appeared to be making about executive privilege was "privilege unless the President explicitly states otherwise." That's a little like "innocent until proven guilty," and we describe that as the presumption of innocence...

  2. Sounds reasonable, though Schrödinger's still seems the coolest.


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