From today’s Senate committee hearing with DNI Dan Coats and NSA chief Mike Rogers, one of the weirdest bits of congressional testimony I’ve ever seen. Ed noted in an update to this post that both men swore today they’d never been “pressured” or “directed” to do anything unethical or to interfere with intelligence. Good to know — but have they ever been asked? Just because they’ve never received a direct order or been aggressively “pressured” (a subjective term) doesn’t mean a request hasn’t been made of them, which of course was the claim in WaPo’s latest Russiagate bombshell. To everyone’s surprise, the senator who picked up on that distinction and grilled the two about it was Marco Rubio, a member of Trump’s party and one of his dinner companions at the White House last night. Watch his brief exchange with Coats and Rogers here. Were you ever asked to influence an ongoing investigation, Rubio wonders? The two … refuse to answer. Coats mentions that he’s not going to “go down that road” of revealing “confidential” discussions in a public hearing but Rubio comes back at him by emphasizing that he’s not asking him to disclose classified information. Simple yes or no: Were you ever asked to influence an investigation? No comment from Coats and Rogers.
Which brings us to the clip below, all of which is worth watching but especially beginning at 2:20 or so. Angus King follows up on Rubio’s point by reminding the two that they can’t “no comment” Congress when they’re under oath. There are specific, limited circumstances in which a witness can refuse to answer. One is if his answer would necessarily contain classified info, in which case he can wait for a closed hearing to respond. The other is if he’s asserting a legal privilege of some kind, like, say, executive privilege. Are you asserting executive privilege, King asks Rogers. Er, no, Rogers replies — he hasn’t received clear legal guidance from the White House about whether they’re invoking the privilege to protect his conversations with Trump so, uh, no.
Let’s pause for a moment to note that the head of the NSA says he couldn’t get a straight answer from Team Trump about whether he should discuss his conversations with the president even though he was scheduled to testify before the Senate this morning.
Anyway, King follows up: If you’re not asserting the privilege and you’re simply being asked a simple yes or no question that doesn’t require you to disclose classified info — i.e. were you ever asked to influence an FBI investigation — how can you refuse to answer? If every witness who came before Congress was entitled not to respond because doing so might damage them or their boss politically, congressional hearings would be pointless. King then asks Coats directly: What is the legal basis by which you think you can refuse to answer our questions under oath? Coats: “I’m not sure I have a legal basis.” W-w-w-what? Did no one at the White House prepare these guys for this completely predictable line of interrogation? An ordinary-joe civilian witness would have been held in contempt for saying that.
Rogers eventually falls back on the idea that somehow there’s something classified about all of this and it can’t be discussed publicly. Okay, then, King says. We’re going to be holding a closed hearing in a few hours. Do you promise to answer then whether you’ve ever been asked to influence an investigation? Rogers hems and haws a bit but clearly he’s hoping that the White House will watch this exchange, panic, and invoke the privilege sometime in the next few hours to prevent him from having to testify. The guy might as well be sitting under a neon sign blinking “THERE’S SOMETHING HE DOESN’T WANT TO TELL YOU.” And given last night’s WaPo piece, it’s easy to guess what that might be.