Legal Question re Executive Privilege

This seems to be the crux of a dispute between AG Sessions and Democrats on the committee.

Sessions is saying that even if the president has not asserted executive privilege, he is justified in refusing to answer questions that the president might decide to assert this privilege about it. Democrats are denying that this is a valid approach, and they’re saying unless the president asserts this privilege Sessions can’t refuse to answer questions on this basis.

Which is correct as a matter of law?

The extent of executive privilege is not well defined or understood. Both the White House and Congress have historically avoided making a big issue of it. I don’t think Sessions is right though.

Sessions’ situation is kinda unique: he’s an attorney, and more importantly, his Cabinet role is one that requires him to act as an attorney. An attorney cannot waive the attorney/client privilege; only the client may do that. When Sessions is told something in his role as an attorney, it may be privileged (things he is told in his role as a policymaker and administrator are not).

However, his function is not to serve as an attorney to the POTUS, but to the nation. I think his argument might hold water were he White House Counsel, but I’m not seeing it for the Attorney General.

In any case, if the White House is asserting executive privilege it typically does so by telling Congress that it will not produce whatever official has been subpoenaed. If that hasn’t happened, that’s Trump’s fault.

But Sessions is not trying to avoid asking any and all questions. He’s willing to answer all questions not involving potential executive privilege. So it’s not like the WH is going to say he can’t testify at all.

To piggyback, what’s his actual obligation to answer questions anyway? I too found that line of reasoning to be… confusing, but what’s the committee’s recourse if he were to just say, “I’d prefer not to answer that question?” Is there a contempt statute for committee testimony?

Yes. Most recently, IRS something-or-other Lois Lerner was held in contempt of Congress.

Sure. But if there are subjects the WH doesn’t want him testifying about, they can still spell them out in advance.

But the factual question is whether a witness can decline to answer a question on the basis of a privilege that has not been specifically invoked. I can’t think of another situation in which a party can essentially say they won’t answer questions because someone else holds a privilege that has not, but theoretically could, be invoked.

Congress can find witnesses in contempt, and recommend that the U.S. Attorney pursue charges against them, but this basically never happens. Contempt of Congress - Wikipedia

Note: Sessions is not the PotUS’s lawyer. He is a legal representative of the US government. If the PotUS tells the AG about some illegal dealings, the AG is not at all bound by attorney-client privilege. The AG can in fact use such an admission as the basis for pursuing a criminal case.

The question of executive privilege is extremely fuzzy. The courts sort of make up the rules as they appear before them. Congress and the President don’t like having the courts decide these matters so they usually work extra hard to find a compromise.

But both of them need to be willing to compromise. In this situation one side is not a compromiser, the other side is likely quite willing to not push it.

My best understanding of executive privilege is that Sessions cannot claim it on his own initiative. His discussions with the President may well be covered by the privilege, but the President is the one that must assert it. Now, he can certainly say, “The President has advised me that he asserts executive privilege as to any discussions involving the relative merits of Twizzlers as opposed to Red Vines.” But he can only say that if it’s true.

I think that the only example previously of “executive privilege” being invoked by someone without the express permission of the President came in 2009 when the SEC’s general counsel, Andrew Vollmer, refused to answer certain questions. While he was not forced to answer, he did leave the SEC and return to private practice shortly thereafter. Make of this what you will.

I see no reason that “executive” privilege could not be asserted by ANY member of the executive branch of the United States. After all, the basis of the privilege is separation of powers. From a practical standpoint, if someone who is not the President made an assertion of the privilege, Congress (or the courts, as appropriate) could simply climb the ladder of authority to see if the claim would be supported. Eventually, the President would have to weigh in.

I don’t know how practical that is. The WH doesn’t know in advance what the questions are going to be. The WH has to balance their desire for openness, which would be helpful in resolving the issue, with the desire to protect the confidentiality of their internal deliberations. The balance on interests could well vary by question.

That was the factual question in the OP, but the comment that you quoted and responded to was addressing the final paragraph of RNATB’s post #2, which made a different point.

That is also Jeff Sessions’ best understanding of executive privilege. He said so explicitly, at the hearing.

But he also said that even when the president has not made that claim, that another person could decline to answer questions so as to preserve the future ability of the president to make the claim.

FWIW, I saw an article yesterday in WP in which they quoted different legal people with different opinions about the validity of Sessions’ position.

I recently read somewhere (Votemaster?) that the reason Trump had to hire a private counselor is that two government employees cannot assert lawyer-client confidentially against one another. I guess this is similar to the assertion above that Sessions is not Trump’s lawyer, but the nation’s. This of course has nothing to do with the OP which asked about executive privilege, a totally different animal.

They know what the topics are going to be, and virtually all of the questions. If an unanticipated question was tabled I could see Sessions claiming he has to run back to momma, but as far as I can tell he took that position in response to very obvious questions.