Attorney General Jeff Session may not have had the luxury of saying President Trump invoked executive privilege before he went before the Senate Intelligence Committee on Tuesday, but his rationale for what Democratic critics decried as “stonewalling” was not without merit.
Sessions declined to answer lawmakers’ questions regarding private conversations he had with Trump as part of the committee’s broader probe into Russian meddling in the 2016 presidential election and the firing of former FBI Director James Comey.
“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,” Sessions said in his testimony. “I am protecting the right of the president to exert [executive privilege], should he choose it.”
A source close to Trump’s outside legal team, which is led by Marc Kasowitz, told the Washington Examiner the Justice Department did not reach out to them ahead of Sessions’ appearance on Capitol Hill to ask if the administration wanted to invoke executive privilege.
The decision to invoke executive privilege is usually left up to the administration’s legal counsel — currently Don McGahn — but two White House spokespersons directed the question the matter of executive privilege to Trump’s outside legal team.
A Justice Department spokesperson declined comment.
The U.S. Constitution grants the president the ability to claim executive privilege to protect certain internal executive branch information. Only a president can invoke such a privilege, as the aforementioned information is not flat out protected from Congress.
Sources told ABC News following Sessions’ appearance before the Senate Intelligence Committee that the decision to invoke executive privilege to block Sessions is “in its infancy” and could take months to decide.
Even if Trump does not invoke executive privilege, Sessions is still shielded — for now — from answering such questions.
In 2009, former President Barack Obama’s top lawyer Greg Craig issued a memorandum to the attorney general and other department heads describing “procedures … designed to ensure that this Administration acts responsibly and consistently with respect to White House confidentiality interests, with due regard for the responsibility and prerogatives of Congress.”
This, Craig said is a “longstanding policy” overflowing from two 1982 memorandums, essentially confirming them for the time being.
“Historically, good faith negotiations between Congress and the Executive Branch have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving conflicts between the Branches,” then-President Ronald Reagan wrote in his Nov. 4, 1982 memorandum.
The memo says that if after the White House counsel and the department head — i.e. Sessions — have consulted with one another and had a “careful review,” then Sessions can ” request the congressional body to hold its request [for information] to protect the privilege pending a Presidential decision.”
And in an August 1982 memo titled “Confidentiality of the Attorney General’s Communications in Counseling the President,” then-Assistant Attorney General Theordore Olson says communications between the White House and attorney general are presumed “confidential.”
Something that may complicate that matter of Sessions leaning on these policies is that according to Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program, he had enough time to talk to the president.
“[H]e certainly had enough time to go and talk to the Trump administration and see whether or not they intended to assert privilege over those conversations,” Patel told the Washington Examiner.
Patel adds that Sessions should have been prepared to answer a question from Sen. Kamala Harris, D-Calif., on whether the policy or policies were written down.
“That should be an obvious question he should be prepared to answer,” Patel explained. “[I]f you have the opportunity whether or not ask the person with the privilege if he is going to assert it or not and you don’t take that opportunity — I think that’s very telling.”
In order for executive privilege to apply, the president has to say certain information falls into that category. Internal executive branch information is not automatically protected from Congress every single time.
Lawmakers could hold Sessions in contempt of Congress. They could also file a lawsuit asking a judge to order him to provide the information — but if executive privilege is asserted, he could still continue to decline to answer.