Jeff Sessions; Donald Trump (AP/Alex Brandon/Pablo Martinez Monsivais)

Trump, Sessions and the executive privilege paradox: Did the president leave his most loyal follower out to dry?

President Trump could have protected Sessions by invoking executive privilege but chose not to. Another blunder?


Matthew Sheffield
June 14, 2017 8:59AM (UTC)

During his Tuesday appearance before the Senate Intelligence Committee, Attorney General Jeff Sessions repeatedly refused to answer pointed inquiries on grounds that can only be characterized as highly unusual.

In the middle of the hearing for several tense minutes, Sessions told his former Senate colleagues that he would not answer their questions about his role in the decision-making process that culminated in the firing of FBI Director James Comey. His grounds for doing so? That at some point in the future President Donald Trump may choose to invoke executive privilege on those discussions, effectively prohibiting them from being disclosed.

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(Executive privilege is a term of art used in constitutional law to refer to the idea that the president and his or her staff are entitled to privacy while making and debating policy decisions.)

“I'm not able to share with this committee private communications,” Sessions said when Sen. Martin Heinrich, D-N.M., asked him whether Trump had ever expressed frustration about Sessions’ decision to recuse himself from the federal investigation into Russian interference in the 2016 presidential election.

Sessions continued, “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.”

Among the numerous reasons that this is strange is that by his own admission, Sessions had not been authorized to invoke executive privilege.

“I'm not able to invoke executive privilege. That's the president's prerogative,” he told Heinrich.

The attorney general’s refusal to testify about his discussions with the president about Comey's firing and alleged Russian political meddling was clearly irritating to the committee’s Democratic senators, with at least two of them accusing Sessions of “obstructing” the congressional body’s investigation.

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“I don’t understand how you can have it both ways,” Sen. Angus King, a Maine independent who caucuses with Democrats, said a few minutes after Sessions’ exchange with Heinrich.

“You’ve testified that only the president can assert [executive privilege]. I just don’t understand the legal basis for your refusal to answer,” King added.

While Sessions’ adamant denial to answer pertinent inquiries did him no good in the court of public opinion, it was in keeping with the behavior of past administrations, none of whom have been particularly keen on opening up about conversations between chief executives and their top staffers.

In most cases, however, Trump’s predecessors have been clear about formally invoking executive privilege. One earlier such incident was mentioned in passing on Tuesday by Republican Sen. James Lankford of Oklahoma.

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As Lankford briefly referenced, former Attorney General Eric Holder refused to provide certain documents that were pertinent to a House investigation into the "Fast and Furious" operation, a failed gun sting during the administration of former President Barack Obama. After his refusal, Holder was held in contempt of Congress and then referred to a federal court, where the Department of Justice lost its case. Ultimately, he was forced to turn over the documents.

While executive privilege is not a surefire means of avoiding inconvenient questions, it is nonetheless a legal strategy. That’s what makes Sessions’ extralegal standard for refusing — which CNN legal analyst Jeffrey Toobin described as the attorney general's "own invention" — so curious.

Obviously, Sessions and Trump are in regular communication. Surely, as the nation’s top law enforcement officer, Sessions could also get in touch with the White House counsel's office to ask if the administration intended to invoke executive privilege against congressional inquiries into the Comey and Russia matters.

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That does not appear to have happened, and it’s unclear why.

Given Sessions’ careful words about Justice Department policies and his expressed desire to preserve the president’s ability to invoke executive privilege at a later date, the attorney general clearly is aware of the legal possibilities.

There are three major possibilities why Sessions was not instructed to invoke executive privilege. The first is that Trump’s legal team has decided that using it would only make Trump look guilty. While that's possible, such behavior would seem out of character for the Trump White House, an institution known for its devil-may-care attitude toward legal and political norms.

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The second alternative is that the White House has lost confidence in Sessions for recusing himself from the Russian inquiry and was simply letting him twist in the wind before forcing him to resign or eventually invoking executive privilege on these issues.

That would certainly fit within the “Devil Wears Prada” character of Trump the boss. He enjoys humiliating employees in a variety of ways, according to numerous reports. Forcing Sessions to refuse to answer questions with no legitimate legal rationale certainly fits the pattern of a president who would make his press secretary make obviously false claims about the attendance at his inauguration or compel Cabinet members to deliver unctuous paeans to his greatness before the cameras.

The third possibility is that the Trump White House thought that declining to invoke executive privilege, while also opting to not answer questions, might somehow be seen as de-escalating the crisis surrounding the Russian investigation and Comey's firing. That might seem bizarre to outside observers, but this administration has certainly made bad decisions before.

Most recently the Trump team appears to have thought that dismissing Comey would somehow help wind down the Russia scandal, given how much Democrats had blamed him for the defeat of Hillary Clinton.

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The resulting outrage from the left side of the aisle over Comey's firing seemed to have caught the White House by surprise, leaving the administration unable to maintain its preposterous claim that the FBI director had been fired over his handling of his agency's investigation of Hillary Clinton’s private email server.

Ultimately, any or all hese possibilities could explain why Sessions attempted a 21st-century version of the Nixonian strategy known as a modified limited legal hangout. Given how fast the news cycle moves lately, we’ll likely have to wait only a matter of days until we know for sure.


Matthew Sheffield

A writer, web developer, and former tv producer, Matthew Sheffield covers politics, media, and technology for Salon. You can email him via m.sheffield@salon.com or follow him on Twitter.

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