Trump Fires FBI Directer Comey

[Pete at Home]

So where do you guys come down on declining to answer a question because the president MAY decide to invoke executive privilege regarding said question?

I think it's hardly a surprising move, given the history of executive privilege and the age-old battle between Congress and the Executive.

[D.W.]

Him not answering was predictable.  How he went about not answering was seemed odd to me.  And if how frustrated and incredulous a few on the committee seemed to react, it wasn't the standard blow off either. 

[Seriati]

Haven't had a chance to read the transcript yet, but the Executive privilege isn't a mystery to anyone in Congress.  If they asked more than one question where he had to assert it, they almost certain did so as an act of theater.

[D.W.]

He was careful NOT to assert it.  He kinda... split the difference. 

He stated that HE could not claim executive privilege.  His refusal to answer was based on a "long standing policy" of not revealing the content of private conversations with the president.  That he was protecting the president's constitutional rights in refusing to answer.  (This on it's face seems sensible I'll add.  But didn't the president have a some say in whether or not Sessions testified in the first place?  Couldn't Sessions have refused to answer, rather than suggesting he could not answer due to some policy?)

When informed he could answer, answer in a closed session, or claim executive privilege (something Sessions himself seemed to insist he could not do), Sessions just repeated the "policy". 

When asked to see the policy in writing, he said he believed it WAS written down, but the impression left was this is just a common sense, polite tradition that you don't air the president's dirty laundry.  It didn't seem to in any way be a rule or actual policy, let alone a legal shield to duck behind.

It was like Trump or his team expressly forbid him to claim executive privilege and he was trying to still duck behind it without saying the words.

Or, at least that was my impression not knowing the relevant law / procedures.

[Seriati]

He was careful NOT to assert it.  He kinda... split the difference.

You're mixing up a lot of concepts, that again are not confusing at all to the members of Congress.  If you ask an attorney what her client told her, she'll refuse to answer because it's privileged.  That privilege also does not belong to the attorney but to the client.  Sessions deferral should literally be read as a him saying that he views the conversations as potentially subject to the executive privilege and that you'll have to ask the President to release them. 

His refusal to answer was based on a "long standing policy" of not revealing the content of private conversations with the president.

Which again is a long standing policy of the executive branch that Congress is fully aware of.

That he was protecting the president's constitutional rights in refusing to answer.  (This on it's face seems sensible I'll add.  But didn't the president have a some say in whether or not Sessions testified in the first place?  Couldn't Sessions have refused to answer, rather than suggesting he could not answer due to some policy?)

You think it would be better for him to refuse to provide information that Congress would otherwise be entitled to and not state the basis for the refusal?

When informed he could answer, answer in a closed session, or claim executive privilege (something Sessions himself seemed to insist he could not do), Sessions just repeated the "policy".

Which is literally an answer.  It means Sessions thinks the conversations were reasonably within  the realm of the  Executive privilege but its the President's call.  Sessions has no authority to waive the privilege therefor he has no choice but to decline to answer, exactly as other executive officers have done in the past.

When asked to see the policy in writing, he said he believed it WAS written down, but the impression left was this is just a common sense, polite tradition that you don't air the president's dirty laundry.  It didn't seem to in any way be a rule or actual policy, let alone a legal shield to duck behind.

I think you're mixing up policies.  I don't think he was asked to show this policy in writing.  In any event, even claiming this is inconsistent with the history of the executive branch is silly and reflects a lack of history on the topic.  It's something that is being staged to soundbite people who don't know better.

It was like Trump or his team expressly forbid him to claim executive privilege and he was trying to still duck behind it without saying the words.

Lol.  It literally was the opposite.  If you don't know if the President will assert privilege you have no choice but to not answer.  If he knew, Sessions would have had no problem conveying that such answers were privileged.

[D.W.]

That privilege also does not belong to the attorney but to the client.  Sessions deferral should literally be read as a him saying that he views the conversations as potentially subject to the executive privilege and that you'll have to ask the President to release them. 

Totally sensible.  My question would be, is the proper way to decline answering, to just say, “I’m invoking executive privilege.  That’s for the president to reveal, not me.”  OR, was his response appropriate and it was the committee out of line trying to get him to either answer, or claim executive privilege?

Is there another specific mechanism he can use (other than E.P.) to refuse to answer?  Is there ANY legal compulsion to answer once agreeing to testify before such a committee? 

Which again is a long standing policy of the executive branch that Congress is fully aware of.

Again, is this… umm… “legal cover” for refusal to answer?  Or am I conflating this committee too closely to a trial?  Is there such a thing as being held in contempt or being charged with obstruction regarding a congressional investigation?

You think it would be better for him to refuse to provide information that Congress would otherwise be entitled to and not state the basis for the refusal?

That’s my question.  ARE they entitled to it?  If they are (otherwise) and he has a basis for refusing to answer… Was this it?  Shouldn’t it be a statute or written policy or law that outlines just that?  His explanation boiled down to it being a tradition.  Sure, fair, I even agree with that tradition.  But shouldn’t it be codified for just such a situation?

I know things get murky in politics, but I thought our system self policed itself against either wrong doing and fishing expeditions better than this.

Sessions has no authority to waive the privilege therefor he has no choice but to decline to answer, exactly as other executive officers have done in the past.

That seems to be the answer I needed if correct.  The committee was in error trying to press him to “invoke executive privilege” or answer.  Black or white.

I don't think he was asked to show this policy in writing.

He was.  On multiple occasions.  Big part of what led to my fuzziness on this topic.  He was pressed hard to explain what it was, and how it shielded him from answering.  It was several times woven in to opportunities for him to reconsider whether he was invoking executive privilege.  So, proceduraly(?) it seemed they were calling his answer illegitimate and obstructionist.  Once characterizing it as stonewalling.

If he knew, Sessions would have had no problem conveying that such answers were privileged.

This assumes that ambiguity does not play into the executive strategy regarding these investigations.

[Fenring]

Is there such a thing as being held in contempt or being charged with obstruction regarding a congressional investigation?

After what Loretta Lynch pulled in front of the senate regarding the 'classified information' fiasco, I would say...not! I've also seen people like chairmen of the Fed outright flout questions put to them in senate investigations, so the extent to which someone can be held in contempt is probably reverse correlated with how powerful that person is.

[Seriati]

D.W. reading the transcript now, but thought you'd enjoy this quote from Senator Lankford:

It seems to be a short memory about some of the statements Eric Holder would and would not make to any committee in the House or the Senate and would or would not turn over documents even requested. That had to go all the way through the court systems for the courts to say no, the president can't hold back documents and the attorney general can't do that. So somehow the accusation that you're not saying every conversation about everything, there's a long history of attorney generals standing beside the president saying there are some conversations that are confidential, and then it can be determined from there.

[D.W.]

That is indeed helpful.  I don't make it a habit to follow these type of committee meetings.  A willing victim of the public spectacle I guess. 

Trying to sort out what they can or cannot expect to see answered or handed over. 

[Seriati]

Totally sensible.  My question would be, is the proper way to decline answering, to just say, “I’m invoking executive privilege.  That’s for the president to reveal, not me.”  OR, was his response appropriate and it was the committee out of line trying to get him to either answer, or claim executive privilege?

His response was correct.  Step 2 is in the final comment of the Chair, he asked that Sessions consult with the President about whether he can provide answers on those topics and submit them in writing. 

Is there another specific mechanism he can use (other than E.P.) to refuse to answer?

Bunches, he can refuse to share confidential info (though they could move to a closed session on this one), info about active investigations, personal information about investigated persons, privileged information (based on other privileges), and if you believe the validity of Lois Lerner he could assert the fifth (I still say that was wrongly decided, as the records withheld were government records).

Is there ANY legal compulsion to answer once agreeing to testify before such a committee?

My understanding is yes, unless a basis for not answering exists. 

Which again is a long standing policy of the executive branch that Congress is fully aware of.

Again, is this… umm… “legal cover” for refusal to answer?

This is about the separation of powers.  The Executive branch is entitled to not share its internal deliberations with the Legislative Branch.  The SC has upheld this.  The idea is really simple, the President is entitled to get the best advice of his advisers not the advice they feel safe giving subject to Congressional subpeona.

Or am I conflating this committee too closely to a trial?  Is there such a thing as being held in contempt or being charged with obstruction regarding a congressional investigation?

It's like a trial, though there is no accused.  You can hold someone in contempt, but then to enforce it they generally have to go through the courts and the courts respect the exclusions.

Was this it?  Shouldn’t it be a statute or written policy or law that outlines just that?  His explanation boiled down to it being a tradition.  Sure, fair, I even agree with that tradition.  But shouldn’t it be codified for just such a situation?

His explanation expressly stated that it was the principal of executive privilege, the demand for the Justice department's written policies (if any) is a red herring.  The written policies would be an interpretation of the privilege but an independent determination that privilege applies would always overrule the written rules.  It's just a silly attempt by Congress to claim that the "policy" is being violated, when they know its the principal that controls.

In any event, Congress is completely empowered to follow up on those questions at which time the President will either have to assert the privilege (or another one) or allow the questions to be answered.  In person hearings are characterized by "surprise" questions, which is the exact circumstance under which the President can't provide real time guidance, meaning the errors all have to go in favor of protecting the privilege at that time.

I know things get murky in politics, but I thought our system self policed itself against either wrong doing and fishing expeditions better than this.

There is no protection against Congressional fishing expeditions or grandstanding, or did you miss the hearings on steriod abuse in professional baseball?

Sessions has no authority to waive the privilege therefor he has no choice but to decline to answer, exactly as other executive officers have done in the past.

That seems to be the answer I needed if correct.  The committee was in error trying to press him to “invoke executive privilege” or answer.  Black or white.

They knew he couldn't answer before they asked the question.  The point of the question was to demonstrate that they were being hard on Sessions and obtain soundbites of him not answering so they could claim stonewalling.

I don't think he was asked to show this policy in writing.

He was.  On multiple occasions.  Big part of what led to my fuzziness on this topic.

My mistake, though it is very important to note that the "policy" he was asked to provide is not the basis for the exemption.  Whether or not it covers directly any situation doesn't answer the question of whether privilege exists, and members of the executive branch would be required not to answer if in their judgement it could exist.

He was pressed hard to explain what it was, and how it shielded him from answering.  It was several times woven in to opportunities for him to reconsider whether he was invoking executive privilege.  So, proceduraly(?) it seemed they were calling his answer illegitimate and obstructionist.  Once characterizing it as stonewalling.

Which was the point of asking some of the questions.  I thought Harris was particularly bad on this point, but that makes sense because she's trying to generate sound bites for her political career.  Heck she was trying, again, to force the Chair to correct her for not letting the witness respond so she can tie into the "nevertheless, she persisted" meme.

If he knew, Sessions would have had no problem conveying that such answers were privileged.

This assumes that ambiguity does not play into the executive strategy regarding these investigations.

There is ambiguity.  Your confused because the Senators want you to be confused.  If they want the answers they can demand them in writing from Sessions and/or the DOJ and the President will decide to invoke the privilege or not.  Getting them live from Sessions before that consult happens is the problem.  Nothing - at all - stops them from forcing the President to make a decision on this, they just want you to believe it does so they can claim to be "stonewalled."

[D.W.]

Break downs like that keep me commin' back to tOA.  Thanks again Seriati. 

And yes, I did miss the steroid hearings.  (thankfully?)

[Seriati]

Just to follow up here again, the left demanded that Sessions recuse himself because he met with the Russian ambassador in his official capacity (notice by the way, no mention of whether anyone in Congress involved in the investigation has met with the Russian ambassador), but don't see a recusable issue in connection with Mueller?

Rosenstein recommends Comey be fired, whether or not Trump relied on that recommendation he fires Comey.  The firing of Comey is the basis of of, or heavily connected to, any potential obstruction case.  Rosenstein appoints Mueller, a good friend of Comey's, to investigate the Russian situation.  Mueller is now according to the WP investigating Trump for obstruction.  Both Rosenstein and Mueller are heavily conflicted, far more so than Sessions was, in this matter with respect to Comey's firing, and Mueller is heavily conflicted in pretty much any matter involving Comey at all.

[Pete at Home]

Is there such a thing as being held in contempt or being charged with obstruction regarding a congressional investigation?

After what Loretta Lynch pulled in front of the senate regarding the 'classified information' fiasco, I would say...not! I've also seen people like chairmen of the Fed outright flout questions put to them in senate investigations, so the extent to which someone can be held in contempt is probably reverse correlated with how powerful that person is.

There is "contempt of Congress" but AFAIK it's never applied (or at least never sticks) to persons acting on the President's orders.  It[s one of those things IIRC where SCOTUS says it's a political question and refuses to mediate between the other 2 branches.

[Fenring]

There is "contempt of Congress" but AFAIK it's never applied (or at least never sticks) to persons acting on the President's orders.  It[s one of those things IIRC where SCOTUS says it's a political question and refuses to mediate between the other 2 branches.

That's interesting. I've seen many cases, though, of questions about internal policy being flouted as well. You can find videos of Bernanke, for instance, refusing to answer simple questions that there's a zero percent chance he didn't know about. In the wake of the partial audit of the Fed, when they found out about trillions in bailouts and loans made unilaterally by the Fed, when questioned about any parts of it Bernanke would say something like "I would have to verify the answer to questions like that internally, I don't have that data on hand." He basically was on a "don't confirm or deny" response policy and you could see the Congressmen's frustration when they realized there was no way to do anything about a flat refusal to answer.