Attorney General Jeff Sessions testified before the Senate Intelligence Committee on Tuesday to discuss why he recused himself from the federal investigation into Russian interference in the 2016 election and the firing of former FBI Director James Comey. Democratic senators grew increasingly frustrated with him, though, as Sessions refused to answer questions about his discussions with President Trump.
After Sessions dodged one such question, he told the committee, "It’s my judgment that 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."
Democrats weren’t buying it. Sen. Martin Heinrich accused Sessions of impeding the investigation, and Sen. Kamala Harris pressed him on what written policy allowed him to keep his conversations with the president from the public. He could not give a specific answer.
Sessions’ reasoning for not revealing his discussions with President Trump came down to the issue of executive privilege, which allows the president to keep information from the public and Congress. Here's what you need to know about the vague privilege as it pertains to Sessions and Trump.
Is it an actual law?
The concept of executive privilege isn’t in the Constitution or any written law. However, the U.S. Supreme court has ruled that presidential communications have "a presumptive privilege" rooted in the separation of powers. "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately," the Court wrote in 1974.
The Department of Justice has a similar "deliberative process privilege" in its regulations, stating that information can be withheld to encourage open discussion within the department, to protect against premature disclosure of proposed policies, and to protect against public confusion that might result from disclosing reasons that weren't ultimately the grounds for an agency decision.
Can Sessions invoke either privilege?
Sessions said he wasn't invoking executive privilege himself, but reserving the right for President Trump to later. However, when asked, he said the president had not yet requested to keep their conversations private.
Democratic senators voiced concerns that it wasn't Sessions place to preemptively claim executive privilege for the president in the hearing, and there's no known legal precedent for someone refusing to answer questions in case the president wants to invoke the privilege. But, last week, two national intelligence officials also refused to tell the Senate about their conversations with the president.
Here's what it comes down to: The president can ask his advisers and White House officials to keep certain details of their deliberations private, but Sessions said himself Trump hadn't requested that he do so.
And in relation to the DOJ's deliberative process privilege, the reasons listed for withholding information could apply to discussion about Comey being fired, but not much else brought up in the hearing.
Can Congress make him talk?
If the Senate intel committee really wanted Sessions to answer all its questions, it could hold Sessions in contempt, which would send the issue to a federal court. That's unlikely to happen right now, but it is possible.
When executive privilege cases have gone to court in the past, it's gone both ways. The Supreme Court solidified the privilege as a necessary function within the constitutional separation of powers during Nixon's Watergate scandal, but the court also ruled that it's not an absolute power and ordered Nixon to give the tapes of White House conversations to Congress.
President Eisenhower, who coined the term executive privilege, did keep his administration from testifying in Army hearings about allegations that Sen. Joe McCarthy improperly pressured the military to give preferential treatment to his former aide.
Essentially, Sessions' reasons for withholding information from Congress and the public were shaky, but it's unclear if anything will come of it.