Privileged Executive: How Sessions Has Shut Down Congressional Oversight

by Nomad

One of the duties of members of Congress is to provide oversight over the executive branch. Presidents have long attempted to evade this scrutiny by means both legal and questionable. One tool at president's disposal is the use of executive privilege. 
Here's how Trump's Attorney General has used it to shield the president from oversight in the matter of Russian collusion.

No question about it, as a concept, executive privilege is a tricky thing. It is defined as "a constitutional principle" that allows the president (and high-level executive branch officials) to withhold information from Congress, the courts and ultimately the public.

That's quite a startling idea in a democratic republic where office-holders are supposed to be servants of the people. It doesn't take much imagination to see how this principle can be abused. After all, while it is called a constitutional principle, neither hide nor hair of it can be found in the Constitution.
Constitutional literalists have concluded, therefore, that this privilege is really a product of the imagination and wishful thinking. Be that as it may, it hasn't stopped presidents from using it when and where they could.

The usual cases for executive privilege seem legitimate enough, national security or protecting sensitive negotiations or covert investigations or operations.
In other cases, presidents have used it in more illicit ways.

The 1982 Memo and Executive Order 12667

In November of 1982, then-President Ronald Reagan issued a memo to all the executive department. The subject was the administration's position on executive privilege. 

Congressional requests for information shall be complied with as promptly and as fully as possible, unless it is determined that compliance raises a substantial question of executive privilege.

There could be any number of legitimate reasons for holding back information.

Every effort shall be.made to comply with the Congressional request in a manner consistent with the legitimate needs of the Executive Branch.

Pending a final Presidential decision on the matter, the Department Head shall request the Congressional body to hold its request for the information in abeyance.

It was implied, (though not specified) that this duration would be short. Exactly how long was unclear. It was clearly not intended to go on indefinitely.   

On  18 January1989, the outgoing Reagan issued an Executive order (EO 12667) again outlining a process which would allow forthcoming presidents some kind of guidelines on executive privilege.
(He had excellent reasons for clarifying matters. His vice-president was to be sworn in two days later, and he wished to be sure that George H.W. Bush could exercise executive privilege for Reagan, thereby preventing disclosure of presidential secrets.) 

According to Reagan's executive order, there would be a more formal process for declaring executive privilege. It was intended to be straightforward. 

Both the memo and the executive order established a process recognized and adopted by presidents since Reagan. It works like this:
After the White House receives a request for the disclosure of Presidential records, (from the courts, or Congress for example) the president's lawyer and the Attorney General- or the Assistant Attorney General- would review the requested documents. 

After a review, the Attorney General and the lawyer would determine whether the Executive privilege is unwarranted. Their input is limited to whether the use of privilege was legitimate.
If they agree that executive privilege is not justified, the president would have to turn over the documents. (It is, according to the process, not the duty of the Attorney General to invoke executive privilege, or advise the president on the matter.)

If, on the other hand, the Attorney General and the president's lawyer decide that the circumstances justify the invocation of the Executive privilege, then they together would inform the president. The president could- if he wishes- at that time issue Executive privilege.

Then they president would notify Congress in writing his intention to use his privilege and to which documents it applies. 

The President and the Burden of Proof 

As one source points out, the use of executive privilege is not something that should be used lightly.

In our constitutional system, the burden is on the executive to proof that he had the right to withhold information and not on Congress to prove it has the right to investigate. Executive privilege therefore exists to be used for compelling reason- primarily to protect public interest. It is not a power that should be routinely used to deny those with compulsory power the right to access information.

Congress' right to investigate generally- but not always- takes a higher priority over the right of the executive branch to withhold information.

There is no doubt that president and their staff have secrecy needs and that these decision makers must sometime be able to deliberate in private without fear that their every utterance may be public.

However, the power of executive privilege is obviously not absolute.

Like other constitutionally-based powers, it is subject to a balancing test. Just as presidenrs and their advisers have needs of confidentially, Congress must have access to executive branch information to carry out its investigative function.

For that reason, any evocation of executive privilege has to be weighed against Congress' legitimate need for information to fulfill its own constitutional responsibilities.

As he has done so often in the past, Trump has exposed a dangerous weakness in the system. It's always been there but it has never been abused so openly.
That's no small matter, The abuse of executive privilege is a direct attack at Congressional authority to hold the sitting president accountable. 

Sessions and the Executive Privilege Game

Back in June, Attorney General Jeff Sessions testified before Congress, with Senator Martin Heinrich of New Mexico in the Senate Intelligence Committee hearings.

Heinrich accused the Attorney General of obstructing the investigation by refusing to answer the committee's queries about what Sessions and Trump discussed.

Sessions, in his own defense, claimed that by answering their questions by investigating committee members, he would violate the president's potential application of the executive privilege.

For this reason, all conversations that he had with President Trump on the Russia investigation were off-limits.
But, Sessions also added, that the president had not actually invoked executive privilege but was retaining the possibility of using it in the future.

It was a mind-bending moment when Sessions told committee members

I can neither assert executive privilege nor can I disclose today the content of my confidential conversations with the president. Under the administration of both parties, it is well established that a president is entitled to have private, confidential communications with his cabinet officials … and that such communications are within the core of executive privilege. Until such time as the president makes a decision with respect to this privilege, I cannot waive that privilege myself or otherwise compromise his ability to assert it.

Sessions' defenders at the National Review say:

The attorney general’s refusal to answer any individual question is not an invocation of the privilege; it is a pause to enable the president to determine whether to waive the privilege. If the privilege is waived, then the attorney general will answer.

As we have seen, according to Reagan's guidelines, this is hogwash. But it is typical of Sessions' style of double-speak. How long is this "pause" supposed to last? Forever? 

After the Attorney General gives his approval, the matter becomes whether the president must decide if he will or will not use this privilege. And he must inform Congress. That's something Trump refuses to do so.

Attorney General Sessions has also refused to do his job allowing him to avoid answering any questions which would incriminate or exonerate himself or the president.  Obviously, this is a flagrant abuse of the principle of executive privilege. This misuse could, in theory, be used by any president at any time to thwart all Congressional oversight.

George Washington University Law Professor Jonathan Turley pointed out back in June when Sessions used this specious argument:

The president has to invoke executive privilege prior to its use. If he doesn’t do so, someone in Sessions’ position would have to answer questions.

The idea that the president- working with his Attorney General and his lawyers- could indefinitely delay invoking executive privilege in order to permanently withhold information is clearly an obstruction of constitutional oversight.

Summer Turns to Autumn

Five months have passed and Democrats on the Senate Judiciary Committee investigating Russian collusion allegations were prepared for more of the same from Session when he was scheduled to appear.
In fact, a week prior to his appearance, members sent him a letter, "arguing that he would not have a legal basis to continue to refuse to answer unless Mr. Trump invoked the privilege."

The Attorney General simply ignored that warning. Sheldon Whitehouse, Democrat of Rhode Island, told Sessions:

“You can’t have a situation which the president never has to assert it and the abeyance goes on indefinitely.”

Sessions seemed unimpressed.
Until Republican committee chairmen take their jobs seriously, Sessions can do just as he likes.

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