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In Refusal To Answer Questions, Sessions Denies Claiming Executive Privilege


We're going to look more closely now at the attorney general's decision not to answer some questions from the Senate intelligence committee. Here's part of what Jeff Sessions said in his opening statement.


JEFF SESSIONS: I cannot and will not violate my duty to protect the confidential communications I have with the president.

SHAPIRO: To help us understand the principle that allows Sessions to avoid answering these questions, we're joined by Steve Vladeck. He's a professor at the University of Texas School of Law and joins us from member station KUT. Thanks for being with us.

STEVE VLADECK: Thanks for having me, Ari.

SHAPIRO: It was widely reported before this hearing that Sessions would claim executive privilege to refuse to answer some questions, but when the ranking Democrat on the committee, Senator Mark Warner, asked why Sessions was refusing to answer questions about conversations with the president, the attorney general said it was based on what he called reasons that are founded in the co-equal branch of powers and the Constitution. Let's listen to this exchange, starting with Senator Warner.


MARK WARNER: Are you claiming executive privilege here today, Sir?

SESSIONS: I'm not claiming executive privilege because that's the president's power, and I have no power to...

WARNER: What about...

SESSIONS: ...Claim executive privilege.

WARNER: What about...

SHAPIRO: OK, so professor Vladeck, explain what exactly is going on here.

VLADECK: So I mean I think the attorney general is basically trying to invent a new doctrine called the non-privileged privilege...

SHAPIRO: (Laughter).

VLADECK: ...Where he basically gets to say, I'm claiming executive privilege by not claiming executive privilege. Ari, that's not how this is supposed to work.

SHAPIRO: Well, why wouldn't he just say, I'm claiming executive privilege? That's something people have done before.

VLADECK: It is, and I think the reason why is twofold. First, it looks bad optically to hide behind executive privilege, especially where the conversation is something about which there's already been so much public discussion, some of which fueled by the president's own tweets. But second, once there is a formal claim of executive privilege, that sets in motion a series of legal maneuvers that could be deployed to litigate the claim of privilege and to determine if it's a valid claim of privilege. By sort of not quite invoking it, I think the attorney general is creating an additional step where first the Senate intelligence committee would have to decide that they wanted to push back and try to compel him to answer.

SHAPIRO: OK, so there is a set of legal rules and procedures if somebody claims executive privilege. What is the set of rules and procedures if somebody invents a privilege on the fly?

VLADECK: Yeah, you know, we're in a bit of uncharted territory here. I mean I think we're still in the same relevant bucket of rules and procedures from the Senate intelligence committee's perspective. So you know, the Senate can try to compel the attorney general to answer the questions. They can hold him in contempt of Congress if he refuses to do so. They can take the somewhat softer option of trying to bring some kind of civil lawsuit to litigate the question of whether the attorney general can invoke either executive privilege or this newfound non-privileged privilege.

But Ari, I think the important point and what the attorney general is surely banking on is that all of those maneuvers require the acquiescence of the Republican majority on the intelligence committee. And so I think he's basically daring the Republicans on the Senate intelligence committee to not let him off the hook and to actually have to agree with the Democrats, many of whom have already pushed and will be pushing for more compelled answers.

SHAPIRO: This seems similar to a situation that we saw last week when two top Trump administration intelligence officials, NSA Director Mike Rogers and Director of National Intelligence Dan Coats, refused to answer questions from a Senate committee but would not specify what legal grounds they were basing that refusal on.

VLADECK: Yeah, and it's the same problem. I mean the short version is, yes, witnesses before a Senate hearing, a House hearing, a court hearing have a right to not answer questions if doing so would violate some legal obligation or privilege. But the questioner has the right to insist that that privilege be asserted entirely so that we know what's going on and so that if the privilege claim is not actually a viable one, it can be tested and litigated the way that, you know, historically we've done that.

SHAPIRO: So this is a slight dodge from the typical claim of executive privilege. But if executive privilege were functioning as we are accustomed to it functioning, what is it? Where does it come from?

VLADECK: Yeah, so the Supreme Court has said that the executive privilege is grounded in Article 2 of the Constitution. That's the part that sets out the president's powers, that it comes from the president's interest in protecting the confidentiality of internal executive branch deliberations and communications. But Ari, it's a qualified privilege.

And so even if we had a valid assertion of privilege in this case, we'd still have to ask two different questions. Had the privilege somehow been waived, for example by President Trump's public statements on the same matters in dispute? And could the privilege be overcome as it was in the Nixon tapes case by some countervailing public need that outweighs the president's interest in preserving the confidentiality of his internal communications?

SHAPIRO: So it seems as though the Trump administration officials who are claiming this non-privileged privilege are gambling that Republicans will want to defend the Trump administration more than they will want to defend the prerogatives of Congress. Does that seem like a safe gamble?

VLADECK: I think that's - well, I think that is the gamble they're taking, and I think that's going to be a safe gamble until the moment the Republicans decide that the separation of powers is more important than the separation of parties.

SHAPIRO: That's Steve Vladeck, who teaches law at the University of Texas. Thanks for joining us.

VLADECK: Thank you.

(SOUNDBITE OF STROBO'S "POP GUIANA") Transcript provided by NPR, Copyright NPR.