Tuesday, June 13, 2017

What Privilege?

Part of the art of the dodge is in being willfully inarticulate.  Or in willfully not trying very hard to speak as clearly as one thinks.  I won't try to quote A.G. Sessions on the privilege that seems to have the Democrats on the Intelligence Committee so flummoxed.  If he had stated his position clearly, they might have figured out how to deal with the problem.  But, being a skilled obfuscator, the A.G. relied on "policy" - never a legal basis for anything - and forced the poor Dems to ask for a copy.  Yikes.

Here's what A.G. Sessions would have said if he felt obliged to speak clearly:  
All confidential communications between the President and anyone else in the Executive Branch are privileged.  Only the President can waive that privilege.  He does not need to "assert" it; it applies until it doesn't, and the Attorney General has no power to pretend that it doesn't.  Where, however, the President has publicly revealed a communication that would otherwise be covered by the privilege, the action implies that the President does not consider that communication privileged, and so someone privy to that communication can discuss it publicly.  
So, when the President says publicly "I asked Rod Rosenstein and Jeff Sessions for their views on Jim Comey," the communication ceases to be privileged, and the A.G. can properly, i.e., without breaking privilege, tell the Senate that the President "asked him" for his advice on Comey.  That testimony would not, pax, Senator King, amount to "selective" use of the privilege in question, however one frames it.

But Sessions did not expressly rely on Executive Privilege, because the President has not asserted it, as if that were necessary to its application.  Instead, Sessions relied on a policy of the Justice Department, which appears very much to walk like executive privilege and quack like executive privilege.  That's because it is executive privilege.  Otherwise, it would be nothing more than a wish that Congress could rightly ignore.  

This confusion serves Trump very well.  Not one Senator asked Sessions "Could the President authorize you to answer these questions?"  The answer is clearly "yes."  Leading to the follow-up "Will you ask the President to allow you to answer these questions?"  Stonewall that, Mr. Sessions. As things stand, the President can say he didn't "assert" Executive Privilege even has he hides behind it.  All because the Attorney General could get away with invoking the privilege on the President's behalf by reference to a bright, shiny object - the DOJ's policy (of tacitly treating Executive Privilege as asserted until waived) - that the Senators are now all trying to get a copy of.  

Where does that leave Mr. Comey's disclosure of things the President said to him?  The President is free to say that Comey is lying about his conversations with the President and, at the same time, claim Executive Privilege as to what he and Comey talked about.  Comey himself made this clear when he described a newspaper story as false but declined to say in what regard, because that would reveal things that should not be made public.  What is less clear is whether the President can order Comey, now a private citizen, not to disclose his recollections of conversations that arguably have a bearing on his personal status.  Privilege means "You don't have to tell Congress"; that's not the same as "Don't tell Congress."  Or is it?  I'm going to leave that hot potato for another day.

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