Attorney General Jeff Sessions tried valiantly to avoid using the phrase “executive privilege” at his hearing before the Senate Intelligence Committee on Tuesday. Executive privilege can be invoked by a president to protect private communications between the president and other executive branch officials. Sessions insists that President Trump did not invoke it, yet he refused to answer questions about his conversations with President Trump.
One of the Senators who attempted to pin Sessions down on the legal grounds for his reticence was Democratic Senator Martin Heinrich:
Heinrich: Attorney General Sessions, has the president ever expressed his frustration to you regarding your decision to recuse yourself?
Sessions: Senator Heinrich, I’m not able to share with this committee private communications—
Heinrich: Because you’re invoking executive privilege.
Sessions: I’m not able to invoke executive privilege. That’s the president’s prerrogative.
Heinrich: My understanding is that you took an oath. You raised your right hand here today and you said that you would solemnly swear to tell the truth, the whole truth and nothing but the truth. And now you’re not answering questions. You’re impeding this investigation. So my understanding of the legal standard is that you either answer the question—that’s the best outcome. You say, “This is classified. Can’t answer it here. I’ll answer it in closed session.” That’s bucket number two. Bucket number three is to say, “I’m invoking executive privilege.” There is no appropriateness bucket. It is not a legal standard. Can you tell me what are these long standing DOJ rules that protect conversations made in the executive without invoking executive privilege?
Sessions: Senator, I’m protecting the president’s constitutional right by not giving it away before he has a chance to review it.
Heinrich: You’re having it both ways.
Sessions: And secondly, I am telling the truth in answering your question in saying it’s a longstanding policy of the Department of Justice —
Heinrich: Are those policies written?
Sessions: — to make sure the president has full opportunity to decide these issues.
Heinrich: Can you share those policies with us? Are they written down at the Department of Justice?
Sessions: I believe they are. Certainly —
Heinrich: This is the appropriate legal standard for not answering congressional inquiries?
Sessions: It’s my judgement that it would be inappropriate for me to answer and reveal private conversations with the president when he has not had a full opportunity to review the questions and to make a decision on whether or not to approve such an answer, one. There are also other privileges that could be invoked.
In this response and a later exchange with Sen. Angus King, Sessions seemed to be saying that while executive privilege hadn’t been invoked, he could refuse to answer questions about his communications with the president because Trump might want to invoke executive privilege. Sessions effectively admitted he was deploying executive privilege in a response to Sen. Joe Manchin, who asked him whether he’d be able to speak more freely in a closed session. “The executive privilege,” Sessions said, “is not waived by going in closed session.”