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Jeff Sessions finds a shield in executive privilege — but it might not be a strong one

Attorney General Jeff Sessions’s repeated refusal to answer lawmakers’ skeptical inquiries Tuesday draws on a long legal and political tradition: Private deliberations involving the president and his top advisers often can be kept out of public view.

But analysts disagreed on whether the attorney general was appropriately using executive privilege to advance a worthy goal, or merely suggesting it as a shield to fend off questions he did not want to take.

Democrats on the Senate Intelligence Committee lambasted the attorney general for failing to provide responses, particularly when they were not asking about classified material or ongoing investigations.

Sen. Martin Heinrich (D-N.M.) said he believed Sessions’s reasoning for not commenting was faulty: There was no “appropriateness bucket,” he said, for declining to answer a legitimate congressional inquiry. Sen. Angus King (I-Maine) said Sessions was being improperly “selective” in what he revealed.

(Jenny Starrs/The Washington Post)

Sen. Ron Wyden (D-Ore.) said Sessions was “stonewalling,” and the public was frustrated by it.

The president undoubtedly has the right to assert executive privilege and stop an adviser from revealing details of deliberations, and Justice Department policies on releasing information to the public note the concept of “deliberative process privilege,” which is meant to “encourage open, frank discussions on matters of policy between subordinates and superiors.”

The Justice Department also pointed to a memo from President Ronald Reagan saying that when privilege about a pending presidential decision was possibly at issue, an official should ask Congress to hold off on its request for information.

Legal analysts, though, were split on whether Sessions did so correctly on Tuesday. Importantly, Sessions said Trump had not yet asserted executive privilege, and he himself had no power to claim it.

But Sessions said he did not want to reveal details that the president might want out of the public eye, if he were given more time to consider.

“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,” Sessions said.

Scott L. Fredericksen, a former federal prosecutor and associate independent counsel now in private practice at Foley & Lardner, said Sessions had taken a “legitimate position . . . to protect the confidentiality of his conversations with the president.”

“I think there’s fairly good history that the Department of Justice resists revealing internal deliberations and discussions, whether it be investigations or policy, as a matter of separation of the executive from the legislative branch,” he said.

But Cornell Law School professor Jens David Ohlin said Sessions’s reasoning did not make sense.

“His justification for refusing to answer the questions was completely incoherent. He claimed executive privilege but then denied that he had done so,” Ohlin said. “It made no sense whatsoever. He’s basically trying to have his cake and eat it, too: claim executive privilege but then pretend that he didn’t. His position has no basis in law, common sense, or logic.”

Sessions declined to detail his conversations with the president on a number of topics — including the firing of FBI Director James B. Comey and possible discussions of pardons or the Russia investigation. He did, though, offer some specifics on why Comey was fired — a point King said showed he was being choosy in what he was willing to discuss.

Legal analysts agreed that it was the president who would have to invoke privilege — although Fredericksen said Congress would have to push the issue if the members really wanted answers. Ultimately, Fredericksen said, a court might determine whether the information is public or not, but all involved would probably want to avoid that outcome.

Last week, Director of National Intelligence Daniel Coats and National Security Agency Director Michael S. Rogers also declined to answer questions from the Senate Intelligence Committee about their conversations with the president.

Coats, like Sessions, said he did not know whether the White House would block his participation in the questioning by asserting executive privilege.

Sen. Kamala D. Harris (D-Calif.) pressed Sessions to promise that he would at least provide documentation to help the committee’s investigation, but Sessions allowed only that he would review Justice Department rules.

President Richard M. Nixon famously invoked the notion of executive privilege to try to withhold White House tapes of himself and others discussing the Watergate scandal, and he resigned not long after he lost in the Supreme Court and was ordered to turn the materials over.

More recently, President Barack Obama invoked executive privilege to block Attorney General Eric H. Holder Jr. from releasing documents in the Fast and Furious scandal. A House panel voted to hold Holder in contempt, and a federal judge eventually rejected Obama’s privilege claim — ruling that it was undercut by public disclosures about the case.

Devlin Barrett contributed to this report.

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