About that Executive Privilege “Policy”: Congress Should Call the Bluff

 

 

During last week’s hearing of the Senate intelligence committee, Attorney General Jeff Sessions generated withering criticism by repeatedly refusing to answer Senators’ questions about his communications with President Donald J. Trump, including discussion of the President’s decision to fire James Comey as Director of the Federal Bureau of Investigation. A similar drama occurred a week earlier during the committee’s hearing on reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. Both Director of National Intelligence Dan Coats and National Security Agency Director Mike Rogers refused to answer questions about media reports that the president had asked them to intervene with Comey to dial back the Russia investigation. None of them based their refusal to answer questions on the grounds that the President asserted executive privilege. Rather, they indicated it would be “inappropriate” or argued for the need to preserve the President’s power to make an executive privilege determination in light of a pending congressional request.

Based on my experience as a White House lawyer, I offer some context for the dynamics at play. I also explain why subpoenas under threat of contempt are the only path Congress can take from here to ensure it gets the answers it needs and the American people deserve.

On one hand, the awkward non-answers by Sessions, Coats, and Rogers are consistent with traditional internal executive branch obligations to preserve space for the President to decide what matters are politically worthy and legally justifiable for an assertion of executive privilege.   On the other hand, the Trump administration has not followed the very “policy” to which Sessions repeatedly referred.

Let’s first address the executive branch mindset. During the hearing, Sessions claimed: “I’m protecting the President’s constitutional right by not giving it away before he has a chance to view it and weigh it.” After the Sessions hearing, the Trump administration cited a 1982 memorandum from President Ronald Reagan as the policy justifying Sessions’ refusals to answer. The memorandum reserves to the President, and President alone, any decision to invoke executive privilege in response to a congressional request for information. The D.C. Circuit noted in In re Sealed Case (Espy): “Since the Constitution assigns these responsibilities to the President alone, arguably the privilege of confidentiality that derives from it also should be the President’s alone.”

The Trump administration has elsewhere asserted the President’s prerogative as the sole holder of privilege claims. During the dustup over the prospect of executive privilege in advance of former Acting Attorney General Sally Yates’s congressional testimony on the Russia investigation, the Department of Justice warned her attorney that “the President owns those privileges.” (In an aside during that hearing that went almost unnoticed by the media at the time, former Director of National Intelligence James Clapper indicated at the outset of his testimony would be limited “[b]ecause of both classification and some executive privilege strictures requested by the White House” (emphasis added)).

Aside from the President’s sole authority over privilege decisions, there is a ripeness question from the executive branch perspective. Sessions, Coats, and Rogers all testified voluntarily before the committee. Congress did not subpoena them to testify about the specific information they refused to provide. While there was an abundance of notice about the subjects that would be covered by these hearings in a political sense, there was not notice in a legal sense that Congress would reject an effort to protect presidential communications. Executive branch lawyers would expect Congress to provide a formal expression of compulsion or, as a matter of comity between the branches, allow the executive branch witnesses time to obtain White House guidance and a Presidential determination once a specific set of questions has resulted in an impasse. John Bies offers a valuable comprehensive analysis of the important role of the accommodation process between the branches as it relates to these ripeness issues.

Here, Congress takes the legal position that the refusal to answer a question at the hearing constitutes a completed act of contempt. In other words, the legal predicate exists should Congress want to pursue contempt against Sessions, Coats, or Rogers. It would only be a matter of political will at this point. However, a former Senate Legal Counsel recalls that every Senate oversight enforcement proceeding during his career involved a subpoena rather than just a hearing colloquy resulting in impasse. So there is, in effect, still a missing step.

With that background, let’s turn to the problems with the Trump administration officials’ position here.

First, this is a matter of intense public interest, and failure to answer questions looks like stonewalling. The Senate has compelling interests in the answers to questions about President Trump’s conduct toward the Russia investigation. I understand that the Senate intelligence committee has decided to avoid the obstruction of justice investigative issues following its meeting with the special counsel. There is still, however, an important role for the committee here. The Senate intelligence committee itself was created, in part, to investigate misuse of intelligence agencies for domestic political purposes. Moreover, the Senate Judiciary Committee has signaled its intent to investigate the obstruction question. This is not going away.

Second, the Reagan memorandum has not been in force for a long time. I can attest that the Reagan memorandum is part of the essential executive branch legal canon for any White House or Office of Legal Counsel lawyer advising agencies on responses to congressional oversight requests. However, guiding principles do not amount to an operative regulatory policy. The Reagan memorandum requires the Attorney General to present the issue of executive privilege to the President through the White House Counsel, and pending the President’s decision:

“…the Department Head shall request the Congressional body to hold its request for the information in abeyance. The Department Head shall expressly indicate that the purpose of this request is to protect the privilege pending a Presidential decision, and that the request itself does not constitute a claim of privilege.”

This provision of the memorandum reflects an obligation to make an express commitment to get Congress an answer to the question of privilege. However, an obligation to make a public commitment to obtain a privilege decision absent a forcing function has not been the executive branch approach since at least the Clinton administration. Based on my experience at both ends of Pennsylvania Avenue, the last three successive administrations sought to delay any assertion of privilege until absolutely the last possible moment. After the barrage of subpoenas served on the Clinton White House, the executive branch started to delay the timing of a presidential assertion of executive privilege in response to a congressional request from the subpoena return date to the date a vote was scheduled to hold an executive branch official in contempt. Consider a recent salient example: President Barack Obama’s assertion of executive privilege the day before the House voted to hold Attorney General Eric Holder in contempt.

Numerous officials in the Obama, Bush, and Clinton administrations have raised “long-standing executive branch confidentiality concerns” in response to requests for information from congressional staffers on the phone and in briefings, in response to letters signed by chairmen, in response to questions by Members at hearings, and even in response to subpoenas. (See examples in various settings here, here, here, here, here, here, here, and here). Congressional staffers generally try to pin executive branch officials down to assert privilege. In response, the administration officials assiduously avoid doing so but press the confidentiality concerns, waiting to see if Congress escalated the dispute to a point requiring presidential attention.

In those situations, in contradiction to the Reagan memorandum, executive branch officials avoided making an on-the-record commitment to ascertain the President’s determination on privilege. While they might request that the committee hold its request in abeyance due to the confidentiality concerns, they would not do so with an explicit promise to chase down a presidential determination. Each administration must establish its own policies and practices anew, with an eye toward the institutional interests of the executive branch, historical practices, and evolving judicial precedent. But at present the key factor is that Congress has not yet pressed its claims by subpoena.

Third, even if we assume President Trump has reinstituted the Reagan memorandum as written, Sessions has not followed it. The memorandum is designed to create a framework for a resolution of the privilege question.  If Sessions believed that his congressional testimony would call for information that “raises a substantial question of executive privilege, he shall promptly notify and consult with…the Assistant Attorney General for the Office of Legal Counsel and…the Counsel to the President.” Presumably he has done so. However, neither Sessions, nor Coats, nor Rogers—all department heads—have made a request of Congress to hold its requests in abeyance pending a determination on privilege, nor have any of them committed publicly to seeking an expeditious decision from the President. None has indicated they are taking these steps toward a prompt and efficient resolution of the potential claim of executive privilege as contemplated by the Reagan memorandum.

Members of Congress are right to castigate the witnesses for their failure to articulate a legal basis for the executive branch confidentiality interests at stake. The witnesses also deserve criticism for failing to commit to seek a presidential determination on privilege and, in the absence of an assertion, offering a commitment to provide the information sought.

In the end, though, Congress needs to use its compulsory power to preserve and perfect its interests in the requested information. It’s simple: subpoena the witnesses for testimony and documents related to their communications with the President or other senior officials related to the Russia investigation and Comey’s termination and do so with a short return window by a date certain. Then, if the witnesses do not meet the deadline, schedule a vote to hold them in contempt of Congress. That will be the only way to force the White House to lay its cards on the table as to its legal theory of privilege and the public’s right to know.

 

Photo: Attorney General Jeff Sessions testifies before the Senate Intelligence Committee on June 13, 2017 – Alex Wong/Getty Images

  

About the Author(s)

Andy Wright

Professor at Savannah Law School, Former Associate Counsel to the President in the White House Counsel’s Office Follow him on Twitter (@AndyMcCanse).