Maybe the intelligence chiefs had a basis for stonewalling.
On Wednesday, Dan Coats, the director of national intelligence, and Admiral Mike Rogers, the director of the National Security Agency, refused to answer senators’ questions about whether President Donald Trump asked them to help shut down the FBI’s investigation into alleged collusion between Trump aides and Russian officials. Coats and Rogers said they weren’t defying the Senate Intelligence Committee in connection with a claim of executive privilege—a fact that only made committee members more frustrated. Senator Angus King of Maine especially.
If Trump administration lawyers had better prepared the intel chiefs, however, Coats and Rogers could have plausibly invoked a subspecies of executive privilege known as “presidential communications privilege.” According to a handy primer by the liberal Center for American Progress think tank, this privilege applies to communication directly with the president that occurs “in performance of a president’s responsibilities” and “in the process of shaping policies and making decisions.”
Caveat: Does trying to undermine a criminal investigation come within the performance of a president’s responsibilities? Or is it obstruction of justice?
For argument’s sake, let’s say the definition of presidential communications privilege covers the reported conversations between Trump and the chiefs in which the president sought help in stopping the Russia probe (which, again, is not to say such conversations would have been kosher). Writing on the invaluable Lawfare blog, Robert Litt, the former general counsel to the Office of the Director of National Intelligence during the Obama administration, argues that Coats and Rogers would have had “at least a colorable claim” that the presidential communications privilege covered their exchanges with Trump.
Another caveat: If challenged in court, such a privilege claim might get knocked down for one of several reasons, including that Trump had waived it by talking publicly about the investigation.
Litt explains that during the Obama years, agency officials asked by Congress to testify about communication with the president first sought permission from the White House. Rogers testified that he did just that, but never got a response from the Trump White House. (That by itself is quite a commentary on the chaos within Trump’s inner circle.) Lacking permission, Coats and Rogers should have clearly stated that the communications privilege—which belongs to the president-—might come into play, and the Senate Intelligence Committee should take up the issue directly with the White House.
As a practical matter, of course, the invocation of any privilege would have underscored the impression that not only has the president tried to stifle the Russia probe, but he’s also attempting to cover up his behind-the-scenes maneuvering. And there is the bigger question of whether Robert Mueller, the special counsel now leading the criminal investigation of Russian interference with the 2016 presidential election and related matters, will countenance similar demurrals by the intel chiefs.
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