Why Sessions Might Use Executive Privilege Shield: QuickTake Q&A

Top Moments of Jeff Sessions' Senate Testimony

For the second time in two weeks, a witness who could have plenty to say about U.S. President Donald Trump is getting ready to testify before the Senate committee investigating Russian meddling in the 2016 presidential election and whether Trump or his associates were involved. And for the second time, the presidential prerogative known as executive privilege looms over the proceedings. Trump didn’t try to assert that privilege to prevent former FBI director James Comey from testifying. But Attorney General Jeff Sessions could invoke it to limit the answers he gives. The Trump administration didn’t show its hand in advance of Sessions’ appearance before the Senate Intelligence Committee.

1. What is executive privilege?

It’s the limited right of the president and other executive branch officials to decline requests from Congress and the courts for information about their internal talks and deliberations. The privilege is supposed to provide a safe space for presidents to get candid advice from aides without the concern that they’ll later be called to testify. Privilege claims are strongest when they concern matters within the particular scope of the executive branch, such as national security, military affairs, law enforcement and foreign policy. They’re weakest when used to hide potential evidence of a crime.

2. Is executive privilege spelled out in the U.S. Constitution?

No, though U.S. presidents have claimed a right to confidentiality in the face of congressional demands virtually since the founding of the republic. The U.S. Supreme Court recognized executive privilege in 1974 in the end game to the Watergate scandal, when Nixon, claiming absolute protection of all presidential communications, tried to withhold audio tapes of Oval Office meetings and other evidence demanded by a special prosecutor. The Supreme Court rejected Nixon’s argument, 8-0, finding the need for evidence in a criminal trial overrode the president’s interest in maintaining White House secrecy. Just 16 days after the court’s ruling, on Aug. 9, 1974, Nixon resigned.

3. How might it apply to Sessions?

In most privilege fights, Congress wants information from members of the administration -- allies of the president, in other words, who share the desire to keep their work confidential. Sessions runs the Justice Department, and the Federal Bureau of Investigation falls under his purview. So he and Trump could have talked about the ongoing investigation into Russia’s role in the 2016 election, or about Trump’s decision to fire Comey, and he or Trump may not want those conversations made public. Sessions recused himself from the Russia investigation after it was disclosed he met with the Russian ambassador to the U.S. twice last year, despite testifying at his confirmation hearing that he had no communications with the Russians.

4. How is executive privilege invoked?

Typically, the White House invokes it in writing to explain why it won’t produce documents, or witnesses, requested by congressional committees. Sessions, who volunteered to testify before the Senate committee, can simply cite it to explain to his questioners why he will not answer their questions. The head of enforcement and acting general counsel of the Securities and Exchange Commission chose that route in 2009 when they declined to answer certain questions at a House hearing on the failure to detect Bernard L. Madoff’s Ponzi scheme.

5. How have other presidents asserted executive privilege?

Even before it was called "executive privilege," presidents asserted the right to keep their discussions secret. George Washington refused to turn over papers relating to a treaty to the House of Representatives. Thomas Jefferson tried, unsuccessfully, to resist a document subpoena in Aaron Burr’s treason trial. More recently, Bill Clinton tried, without success, to shield aides from testifying in the Monica Lewinsky scandal. And Barack Obama was unable to block Congress from getting documents related to the Bureau of Alcohol, Tobacco and Firearms "Fast and Furious" operation.

The Reference Shelf

  • The Congressional Research Service summarizes court cases that have stemmed from information access disputes between Congress and the executive branch.
  • President Richard Nixon’s 1973 statement on his views of executive privilege.
  • Text of the 1974 U.S. Supreme Court ruling in United States v. Nixon, in which the court concluded that executive privilege "cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice."
  • Lynn Cheney wrote a novel titled "Executive Privilege" in 1979. Her husband, former Vice President Dick Cheney, used executive privilege to shield his discussions with Enron Corp. executives in 2001.
  • A Bloomberg QuickTake Q&A on the Trump-Russia investigation and a Bloomberg examination of Comey’s seven-page opening statement, released the day before his appearance before the Senate Intelligence Committee.
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