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Democratic senators skewered Attorney General Jeff Sessions for refusing to answer their questions about his private conversations with President Donald Trump during a June 13 hearing about Sessions’ role in the controversy over Russia and the election.
Sessions said Trump hadn’t invoked executive privilege, which presidents can use to prevent the compelled disclosure of private executive branch communications and deliberations. Instead, Sessions cited "longstanding" Justice Department policy as his reason for declining to comment.
"It's a 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 said.
Sen. Kamala Harris, D-Calif., asked Sessions if this policy is in writing somewhere.
"I think so," he replied.
So we asked the Justice Department where this policy was written down. Spokesman Ian Prior sent us two memos about executive privilege written in 1982, as well as a 2009 memo based on the rationale laid out in the 1982 documents.
Based on Sessions’ testimony, we were looking for the memos to say that an attorney general should not comment on conversations he or she has had with a president or top White House officials, full stop.
But that’s not exactly what the memos say. They acknowledge that the executive branch has an expectation that its communications remain confidential, so they guide the attorney general to consult with the White House counsel about congressional information requests involving White House communications. Then, the president can decide whether to invoke executive privilege to keep those communications confidential if necessary.
In his testimony, Sessions said he didn’t want to answer certain questions without first giving Trump the opportunity to decide whether it would be appropriate to share that information with Congress or keep it confidential.
"It would be premature for me to deny the president a full and intelligent choice about executive privilege," Sessions said.
"It is improper for agents of any of the department (or) any departments in the executive branch to waive that privilege without a clear approval of the president," he added later.
This rationale — that Sessions needs to talk with the president first before commenting — seems to be in line with the 1982 and 2009 memos.
"Congressional requests for information shall be complied with as promptly and fully as possible, unless it is determined that compliance raises a substantial question of executive privilege," says one of the 1982 memos, which President Ronald Reagan issued to the heads of executive branch departments and agencies.
However, it’s important to consider that many of the questions Sessions declined to answer were ones that he could have predicted, given the topic of the hearing, noted Duke University law professor Lisa Kern Griffin, an expert in dishonesty and the law. Sessions deflected questions about details of his conversations with Trump about the Russia investigation or the firing of FBI director James Comey.
So Sessions could have asked Trump in advance of the hearing whether an executive privilege invocation would be appropriate.
"Basically (Sessions) is trying to gain the benefits of claiming executive privilege without its political or legal consequences," said Heidi Kitrosser, an expert in government transparency and professor at the University of Minnesota.
To fully abide with the policies outlined in the Justice Department memos, Sessions should have made it clear that he planned to consult with Trump about the questions Congress asked him, Kitrosser added.
If Sessions continues to refuse to answer Congress’ questions, and Trump doesn’t invoke executive privilege, Congress could ultimately hold him in contempt or impeach him, said Jamal Greene, a constitutional law professor at Columbia University.
"That remedy is, however, highly unlikely," he said.
Interestingly, in his former life as a senator, Sessions asked Attorney General Eric Holder about his private conversations with President Barack Obama during a congressional hearing in January 2014. (Bloomberg View Executive Editor Tim O’Brien uncovered this example.)
"Did he consult with you before he made that statement?" Sessions asked, during a January 2014 hearing, regarding a comment President Barack Obama made to the New Yorker about marijuana.
"No, we didn't talk about that," Holder replied.
This exchange between Holder and Sessions doesn’t automatically refute Sessions’ reasoning, however. We don’t know if Obama cleared Holder to talk about their conversations about marijuana legalization, or if Holder didn’t think his statement raised a substantial question of executive privilege.
In 2012, Congress held Holder in contempt for refusing to provide records related to the Fast and Furious scandal. The Obama White House had invoked executive privilege in that case, though a federal judge rejected that decision in 2016.
Sessions said, "It's a 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."
The Justice Department provided us with memos from 1982 and 2009 about executive privilege. They do not say outright that attorneys general can’t ever comment on conversations with the president.
However, they do guide the attorney general to consult with the White House before responding to congressional inquiries that may involve confidential communications with the president. This is the rationale Sessions invoked later in his testimony.
Sessions’ statement is partially accurate but leaves out important details, so we rate it Half True.
CQ, transcript Senate Select Intelligence Committee Holds Hearing on Russian Interference in the U.S. Election, June 13, 2017
White House, "Procedures governing responses to congressional requests for information," Nov. 4, 1982
Office of Legal Counsel, "Confidentiality of the Attorney General’s Communications in Counseling the President," Aug. 2, 1982
White House, "Congressional requests for information," July 30, 2009
PolitiFact, "Donald Trump: Comey's leak of memo 'totally illegal?'" June 11, 2017
Phone interview, Duke Law professor Lisa Kern Griffin, June 13, 2017
Email interview, University of Minnesota Law professor Heidi Kitrosser, June 14, 2017
Email interview, Columbia Law professor Jamal Greene, June 13, 2017
Email interview, Justice Department spokesman Ian Prior, June 14, 2017
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