During his public testimony before the Senate Intelligence Committee on Tuesday, Attorney General Jeff Sessions refused to answer any questions about conversations he might have had with President Donald Trump.
“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,” Sessions told Democratic Sen. Martin Heinrich during a contentious exchange.
Heinrich’s response was forceful: “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.”
But Sessions was adamant that he was obeying long-established DOJ guidelines, and that he was obligated to remain silent.
Later, Sen. Kamala Harris pushed back against Sessions’s argument, asking if this DOJ rule was in writing somewhere. “I think so,” Sessions said.
To find out whether Sessions has a legal justification for his silence, I reached out to 10 legal experts. I asked them if Sessions’s claim that he’s protecting the president’s constitutional right to executive privilege makes any sense.
All but one of the experts rejected Sessions’s argument on its face, insisting that Sessions is legally permitted to discuss conversations with the president, provided the president hasn’t yet invoked executive privilege (which he hasn’t). One expert believes there is a precedent for Sessions’s actions, but that Congress can — and should — compel him to answer their questions.
You can read their full responses below.
The 9 experts who rejected Sessions’s “executive privilege” argument
Asha Rangappa, Associate Dean, Yale Law School
I believe Heinrich is 100% right in this case. First, executive privilege, if it even applies in this case, can only be invoked by the president, as it attaches to his office. Sessions cannot “preemptively” invoke it on the president’s behalf. Second, I’m not sure what DOJ policy has to do with this. DOJ policy is an internal executive branch regulation. It doesn’t provide a legal shield against testifying in Congress when it is conducting an investigation as part of its oversight function.
In fact, even if the president invoked executive privilege, I think it’s an open question if it would be applicable in this case because there has to be a balance in separation of powers between the president’s need to have confidential decision-making (under which firing of an executive branch officer would probably fall) and Congress’s constitutional power of inquiry through investigatory bodies. (At least one district court has said the privilege wouldn’t apply to senior advisers during a congressional investigation unless it implicated a sensitive executive function like national security or foreign policy, neither of which is involved in this case.)
Also, U.S. v. Nixon specifically noted that executive privilege doesn’t extend to communications or materials that might relate to criminal activity. Since that is also implicated in the decision to fire Comey — namely, that they were trying to obstruct justice — I think executive privilege in this context and line of questioning rests on a very weak basis.
In short, Sessions just needs to answer the damn questions.
Jed Shugerman, law professor, Fordham University
Sessions’s argument is absurd, and the reason it’s absurd is that it turns the president’s executive privilege into any executive officer’s silence. The argument goes something like this: Because a president might one day, over the next three or four years, change his mind and invoke executive privilege, I am permanently silenced by that looming privilege invocation in the future, so that I have to be permanently silenced, no matter who’s asking. There is just no legal basis for that.
Honestly, it’s a ridiculous argument, and it raises questions about Attorney General Sessions’s competence in office. His lack of preparation and his inability to put forward a coherent legal argument showed his disrespect for the process, the senate, and the office of the attorney general. He embarrassed himself by coming to this hearing totally unprepared to answer a question everyone knew he would be asked.
Lisa Kern Griffin, law professor, Duke University
Sen. Heinrich is right on the law, although Attorney General Sessions used the invocation of vague principles of confidentiality to his advantage, taking the opportunity to refute some allegations against him without revealing much about the president’s decision to fire Director Comey. In terms of the law of executive privilege, it belongs to the president, and he has not asserted it. General Sessions sought to preserve the president’s ability to assert it, but that is not how it works.
This hearing was planned in advance and concerned known topics, and the president could have instructed him not to answer any questions about their conversations because of executive privilege. That, apparently, did not happen, and no privilege was asserted. In fact, General Sessions carefully avoided the phrase executive privilege and kept referring to confidentiality. This is similar to what occurred during the testimony of Admiral Rogers and DNI Coats. It’s true that confidential conversations within the executive branch about matters pertaining to the president’s constitutional duties may well be covered by executive privilege, but “I can’t answer because that might be covered by a privilege” just deflects the inquiry interminably.
Now that the full substance of the questions is known, the Committee could try to force a choice between answering them and asserting the privilege, or it could negotiate to get answers to narrower or different questions. If the matters were not classified, and the privilege is not asserted, the Committee could hold General Sessions in contempt, but that is extremely unlikely.
Samuel Gross, law professor, University of Michigan
When you’re subpoenaed and required to testify under oath, in court or before a legislative committee, you have to answer questions put to you or invoke a legal claim that you’re entitled to refuse to answer — which normally means invoking a privilege. Sessions did not do that. So Heinrich is probably right, technically. For example, the Hollywood 10 went to jail in 1950 for refusing to answer questions by the House Un-American Activities Committee.
But Congressional Committees are not courts. Getting to that ultimate result is slow and difficult. The committee has to order the witness to answer and he must refuse; then the Senate (or House) has to vote to cite the witness for contempt; and then the witness has to be tried in court and possibly convicted of criminal contempt of Congress. Nobody has the appetite to do any of that for this testimony by Attorney General Sessions.
Also, while Sessions probably does not have the right to refuse to answer questions without invoking executive privilege in order to “preserve” the president’s right to do so, if the committee did press him and threatened to cite him for contempt, that could get the president to claim executive privilege — after which I am confident that the only issue that anybody cares about would become the propriety of the claim of privilege itself, not the timing and process by which it was raised.
So as a practical matter, Sessions may be right that his technically unjustified refusal to answer did preserve the president’s authority to claim executive privilege. (I won’t speculate on whether that privilege would actually apply; that’s murky.)
One last point. Sessions spoke in detail about the reasons he had for recommending Comey’s removal — all of which related to Comey’s conduct before the election — and he said that he told the president what he thought on that issue. But when Sen. [Angus] King asked him if the president discussed the Russia investigation with him in the context of the discussion of firing Comey, Sessions said he couldn’t discuss those communications with the president because they were confidential and the president might want to claim a privilege.
When privileges apply they attach to both sides of a discussion — what Sessions said to Trump as well as what Trump said to Sessions. If you talk about one part of a potentially privileged conversation — the words you yourself spoke — you’ve waived any privilege you might be entitled to raise for to the entire communication, including what the other person said. Short version: In a normal court proceeding, by the time Sessions refused to discuss what Trump may have said about the Russia investigation he had already waived any privilege he could raise about any part of that discussion.
Brandon Garrett, law professor, University of Virginia
There is certainly no law or publicly available rule suggesting that executive privilege exists when it has not been invoked. Moreover, there is not necessarily any executive privilege, even if invoked, where potential criminal matters are involved.
Jens David Ohlin, law professor, Cornell University
The testimony just didn’t make sense. Sessions effectively asserted executive privilege but then denied that he was asserting the privilege. He waffled back and forth on whether he was appealing to some mysterious and non-existent “policy” about confidential communications or whether he was simply preserving Trump’s ability to assert executive privilege down the road, but which Sessions insisted wasn’t being asserted.
But if the privilege isn’t being asserted, then he really needed to answer the question. The whole thing was absurd and would have been comical if the fate of an administration wasn’t hanging in the balance. The big loser in the hearing was logic and common sense.
Diane Marie Amann, law professor, University of Georgia
Taking the hearing as a whole, the attorney general seemed unclear on whether there existed a written policy not to answer questions in these circumstances. When Sen. [Kamala] Harris asked him if the policy were in writing, he said, “I think so.”
That said, I would expect that executive branch officials take care not to reveal, in public settings, conversations they wish to keep confidential. In the Nixon case in 1974, the Supreme Court acknowledged that presidents may have a generalized interest in maintaining such confidentiality. But it is not absolute.
If Senators were to seek to compel an answer — rather than asking for a voluntary answer, as was the case today — that would put the matter squarely in the executive’s court. If the president then refused to permit the question to be answered, via invocation of executive privilege, a court would have to determine whether the conversation implicated a privilege.
If so, the court then would decide whether the interests underlying that privilege outweigh, or not, Congress’s interest in obtaining the answer. This is the procedure that the court established as a constitutional matter, and it would prevail over any policy statement.
Keith Whittington, politics professor, Princeton University
I am not familiar with any DOJ policy that would prevent Sessions from discussing those conversations in this context, and such policies would have little weight in Congress regardless. I do think the administration has a reasonable basis for asserting privilege regarding the deliberations between the president and his closest advisers, and then it would be a question for Congress to answer as to whether it is willing to respect that assertion of privilege or would want to try to sanction the administration and coerce compliance. The oddity here is just the fact that Sessions tried to leave the issue unsettled when it was clear the senators were expecting him to be more forthcoming in light of Comey’s testimony and Sessions’s willingness to testify at all.
I think Sessions’s stance on this is best read as a threat of asserting executive privilege, or to use a less bellicose image, a trial balloon. He left himself an opening to come back and answer the questions later, in person or in writing, but he tested the waters to see how hard the Senate is willing to push on this. If they push, then the administration could decide to up the ante and assert privilege, and then see how the Senate responds. If the Senate does not push, then the administration can simply let it go for now. Rather than forcing the White House and the Senate into an immediate impasse, Sessions tried to leave room for future negotiations and compromise.
Christopher Slobogin, law professor, Vanderbilt University
If the privilege is asserted, a court will balance the need for secrecy against the need for the information. I think in this case a court might well say the privilege is overridden by the public interest.
If you’re asking whether Sessions can assert the privilege in lieu of the president, the answer is no. Rather, Sessions is asserting that he should not describe private conversations he had with the president until the president indicates whether he wants to assert the privilege (which apparently is DOJ policy and makes sense). Of course, then he went ahead and described some of those conversations, which means either that the president has told him it’s okay to do so or that he’s playing games with the privilege. If it’s the former, the question is raised whether “selective waiver” of the privilege that allows the president to reveal only facts that help him is permissible. Presumably not.
The expert who said there is some precedent for this, but Congress should push back
Peter Shane, law professor, Ohio State University
It is not unprecedented for an executive branch official to decline to provide information about which the president might want to claim executive privilege. What the Committee should do is demand an answer from the White House by a date certain as to whether privilege is being claimed with regard to the conversations at issue. If not, Sessions would have to return and answer. If so, the committee could sue to compel Sessions’s testimony, thus mounting a judicial challenge to the privilege claim.