I mentioned this exchange from today’s testimony in the live thread but the video, via the Free Beacon, should be seen. It was six days ago that DNI Dan Coats and NSA chief Mike Rogers showed up in front of the Senate Intelligence Committee and also refused to answer questions — but not because they were invoking executive privilege on the president’s behalf. To the contrary, both Rogers then and Sessions today emphasized that they’re not claiming the privilege. Rogers went so far as to say that he couldn’t invoke the privilege because he couldn’t get a straight answer from the White House whether he should or not. If a witness isn’t claiming the privilege and isn’t at risk of revealing classified information in his answer, what legal grounds does he have to refuse to answer a question asked of him while under oath?
Sessions says he’s refusing to answer in case Trump wants to invoke the privilege later. But that doesn’t work: If that were the standard, any witness could refuse to testify about anything the president’s said to him on the theory that, hypothetically, at some undetermined future date, the White House might decide that it doesn’t want to share that information. That would be a neat trick if it were allowed, permitting a witness to avoid answering on the basis of a sort of phantom privilege. I can’t figure it out. Neither can lawyer Gabe Malor:
In particular, I cannot find prior uses of this allegedly "long standing practice of DOJ" in Hill hearings.
— Gabriel Malor (@gabrielmalor) June 13, 2017
Janet Reno answered questions about her communications with Bill Clinton regarding the Waco siege, notes Gabe. Why can’t Sessions answer a straightforward question about whether Trump has ever expressed frustration at him for recusing himself from the Russia probe?
Further complicating this is the fact that the privilege isn’t absolute. Sessions could assert it on Trump’s behalf, which would trigger a court battle over whether he can be compelled to answer. But … he isn’t asserting it. So how do we find out if he’s entitled to assert it or not?
“There is no legally binding basis for refusing to answer questions unrelated to an ongoing investigation unless the President is invoking executive privilege,” William Yeomans, a 26-year veteran of the Justice Department and fellow at American University Law School, told CNN.”That privilege is not absolute — it can be overcome by a sufficient interest. DOJ traditionally does not discuss ongoing investigations in public, but ultimately must answer questions unless executive privilege is properly invoked and upheld.”
Exit question: Why couldn’t the White House give Sessions an answer before today’s hearing about which subjects they do or don’t believe should trigger the privilege? Why does this determination need to be made retroactively?