How Sessions, evading Senate questions, used presidential privilege without actually invoking it
U.S. attorney general reveals little, using 'very unusual legal argument'
His right hand raised before the Senate intelligence committee, U.S. Attorney General Jeff Sessions stood to face a flurry of camera clicks and swore to tell the truth, the whole truth and nothing but.
Then the apple-cheeked Alabamanian sat down and proceeded to deflect a barrage of questions — about President Donald Trump, about alleged campaign collusion with the Russians and about the firing of former FBI director James Comey — during almost two-and-a-half hours of testimony on Tuesday.
Flurry of camera shutters as Sessions rises to swear oath. Says he won't violate duty to protect "confidential communications" w president <a href="https://t.co/qJ4VDLtwrd">pic.twitter.com/qJ4VDLtwrd</a>—@matt_kwong
"I am not stonewalling," a defiant Sessions shot back at Senator Ron Wyden, who accused the attorney general of evading questions.
'You're having it both ways'
Nor was Sessions leaning on the presidential right to keep information a secret from the panel investigating alleged ties between the Trump campaign and Russian officials.
"I'm not claiming executive privilege, because that's the president's power, and I have no power to claim executive privilege," he told ranking member Mark Warner.
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Invoking the privilege is typically reserved for sensitive issues or high-level national security matters. It's used sparingly but in well-defined scenarios. Sessions appeared to be using it to justify his evasiveness, even though the privilege isn't up to him to invoke.
Sessions testified that Trump never asserted the privilege instructing him not to be as forthcoming as possible, but that his priority was "protecting the president's constitutional right" to withhold certain information if Trump needed to down the road.
In other words, as Senator Martin Heinrich put it while questioning Sessions's legal basis for dodging questions: "You're having it both ways."
'Unusual legal argument'
"It's a very unusual legal argument," said Harry Litman, a former deputy assistant in the Department of Justice who specializes in national security. "You use privilege in order to withhold information. That's the motivation."
It could also indicate Sessions and other Trump cabinet members called before the Senate committee are lacking clear guidance from a White House reportedly in disarray.
AG Sessions is impeding this investigation. “Appropriateness” is not a legal standard. <a href="https://t.co/vaAzp6CPEK">pic.twitter.com/vaAzp6CPEK</a>—@MartinHeinrich
"Whether Sessions just believes in the principles [of executive privilege] or he's concerned about not offending a president with whom it's been reported he's been having some difficulty recently, it's hard to know what his motives are," said Norman Abrams, a former acting chancellor at UCLA's Law School who lectures on anti-terrorism law.
The Sessions hearing was ostensibly Sessions's chance to rebut the former FBI director's testimony last week, said Abrams, who also previously worked in the criminal division of the Justice Department. Comey told the same Senate panel that the bureau felt any possible oversight of the Trump-Russia probe by the attorney general would be "problematic" in light of information they learned.
Sessions refused to say what those concerns might be, dismissing Comey's comments as "secret innuendo" that he colluded with the Russian government.
Comey testified in a private session about classified matters he couldn't discuss in public. Sessions made no such similar commitment.
As our top law enforcement officer, the AG must be truthful and uphold the law. Sessions cannot continue to serve. He should resign.—@SenWarren
"They're essentially talking about the same subject, but Comey was candid, forthright, and answered all the questions," said David Cole, a national security legal expert and legal director of the American Civil Liberties Union.
Comey also volunteered to answer questions about classified matters in a closed session.
By contrast, Cole said, Sessions "wasn't saying I'll tell you [these] answers in a closed session. He was saying I won't tell you those answers. Period."
Couldn't recall meetings with Russians
The Department of Justice framed Sessions's appearance on Tuesday as a voluntary show of transparency, saying the attorney general requested public testimony "for the American people to hear the truth."
But the truth was the American people didn't learn many answers at all, Cole said.
Sessions testified multiple times he couldn't recall meetings with Russian officials and declined to discuss private conversations involving Trump.
It was simply Sessions's own judgment that it would be "inappropriate" to air details about any private conversation with the president during a public hearing.
Except, of course, when he felt like it — say, for example, when an increasingly agitated Senator Angus King drilled Sessions about who requested that the attorney general and his deputy draft memos justifying the formal dismissal of Comey as FBI chief.
"Who asked for your opinion?" King pressed him.
"The president asked for our opinion," Sessions answered.
Today before Congress, AG Sessions refused to answer key questions about his discussions with <a href="https://twitter.com/realDonaldTrump">@realDonaldTrump</a> related to Comey’s firing.—@SenWarren
"All right! So you just testified as to the content of a communication to the president," King said.
The gotcha moment laid bare the shaky rationale Sessions used to dodge certain queries, said Ryan Goodman, an expert on national security who served as a special counsel to the general counsel of the Department of Defence during the Obama administration.
"King was saying, 'Aha! You just talked about a discussion with the president, so you're doing this selectively.' So that's the kind of dance Sessions is doing."
Despite testy exchanges with Senator Kamala Harris and others, including a warning by Heinrich that Sessions was "impeding" the congressional probe by refusing to answer basic questions, Goodman said the attorney general was at no actual risk of being held in contempt of Congress by obstructing the delegation.
Put up or shut up
Unless Congress actually decides to subpoena Sessions for the information he was unwilling to provide, the "stonewalling can be used an excuse" for lawmakers not to do their job, said Andy Wright, who served in the White House as an associate counsel to president Obama.
Wright would like to at least see Trump being forced to formally assert executive privilege.
"It's not about arguing in the abstract about whether this was a valid assertion of privilege," Wright says. "They need to make sure the president puts up or shuts up."