Over two and a half hours of testimony on Tuesday afternoon, Attorney General Jeff Sessions repeatedly refused to answer questions about his private conversations with President Trump or about other internal discussions between Justice Department and White House officials.
Sessions explained over and over again to frustrated Democrats on the Senate Intelligence Committee that he wasn’t asserting “executive privilege,” a constitutional protection that shields the president from being forced to share internal conversations and documents. Rather, he said, he was acting in line with longstanding practice at the Justice Department not to share information about confidential conversations without the president’s say-so and preserving Trump’s right to assert the privilege later.
Virginia Sen. Mark Warner asked: Had DOJ officials been involved in any conversations about presidential pardons for people involved in the Russia investigation?
“It’s the longstanding policy of the Department of Justice not to comment on conversations that the attorney general has had with the president of the United States for confidential reasons that really are founded in the coequal branch powers in the constitution of the United States,” Sessions replied.
New Mexico Sen. Martin Heinrich asked: Had Trump ever expressed frustration with Sessions over Sessions’ decision to recuse from investigations related to the 2016 campaign?
“Sen. Heinrich, I’m not able to share with this committee private communications,” Sessions said.
It was an “awkward dance,” Andrew Wright, a constitutional law professor at Savannah Law School told BuzzFeed News. Absent Trump invoking executive privilege, there was nothing legally stopping Sessions from answering the questions he was asked on Tuesday, Wright said. But unless the Intelligence Committee compelled him to answer — Intelligence Committee Chair Richard Burr could have ruled during the hearing that Sessions had to answer or assert privilege, for instance — Wright said that he didn’t think Sessions was breaking any obstruction of justice laws by staying mum.
“I understand what he was trying to do, and I’ve seen a lot of people in both Democratic and Republican administrations do that kind of fancy footwork,” Wright said. He added: “Maybe not with the stakes so high as this.”
Executive privilege offers the president broad discretion to withhold information and documents, but it does have limits — it’s intended to protect information that is sensitive or could hurt executive branch decisionmaking if it’s disclosed. Once the president asserts the privilege, whoever is seeking the information can try to challenge the grounds for it.
Executive privilege is different from attorney-client privilege, which protects information shared between lawyers and their clients. Sessions, who as US attorney general is not Trump’s personal lawyer, did not mention that privilege on Tuesday.
Sessions declined to answer a series of questions from Democrats on Tuesday that touched on conversations he had with Trump, or even about the existence of such conversations.
“I’m not able to discuss with you, or confirm or deny, the nature of private conversations that I may have had with the president on this subject or others,” Sessions told California Sen. Dianne Feinstein after she asked him if he and Trump had talked about Trump’s decision to fire former FBi director James Comey.
As Feinstein took off her glasses, smiled, and appeared to gear up to press him further, Sessions continued: “And I know that, how this will be discussed, but that’s the rule that has been long adhered to by the Department of Justice, as you know Senator Feinstein.”
In response to a question from Feinstein’s California colleague Sen. Kamala Harris about whether the DOJ policy that Sessions was referring to was in writing, Sessions said that he thought it was, but he didn’t cite any particular document.
Asked about Sessions’ remarks after the hearing, a Justice Department official pointed to memos from 1982 from President Ronald Reagan and the Justice Department’s Office of Legal Counsel advising that executive privilege can apply to certain communications between the attorney general and the president, and that an agency head could ask Congress to put a request for information on hold until the president decided whether to invoke the privilege.
“Declining to answer questions at a congressional hearing about confidential conversations with the President is long-standing executive-branch-wide practice,” the DOJ official said in a statement.
What happens next is up to Congress. The Intelligence Committee could follow up with written questions on the topics that Sessions declined to address, which would force Trump to decide whether to invoke executive privilege. But that would require action by the Republican-led committee, and legal experts doubted that would happen in the current political climate.
There was an executive privilege showdown in 2012, when President Obama asserted the privilege over documents that congressional Republicans sought from the Justice Department about a botched gun sting operation known as Operation Fast and Furious.
Republicans voted to hold then-Attorney General Eric Holder in contempt, and took the Justice Department to court, challenging Obama’s assertion of executive privilege. A judge ruled against the administration, finding that any claim of privilege was undercut by other disclosures by the Justice Department about the operation. The administration eventually agreed to give up the documents.
Steve Vladeck, a constitutional law professor at the University of Texas School of Law, said that Sessions’ responses on Tuesday struck him as “incoherent.” The attorney general was gambling on the committee not calling his bluff and moving to compel him to answer, he said.
“Either there’s a privilege that allows him not to answer the question or there isn’t,” Vladeck said. “It would defeat the purpose of executive privilege if you didn’t have to assert it to nevertheless benefit from it. Then there’d be no point.”