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, pace, 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.

No Comment

A lot of noise is being made these days about what Jim Comey did and did not say publicly.  Almost all of that noise is logically fallacious.  Comey tried to explain the matter using what he called the "slippery slope" analogy, but no one was listening.  He should have been more forceful.

The answer to the question "Why couldn't he simply say that Trump was not under investigation?" is simply this: "What would he have said if Trump were under investigation?"

If a reporter asks the FBI whether X is under investigation, there is only one suitable answer:  "No comment." Every other answer is wrong, because any other answer means that there are at least two possible answers: "No Comment" and [the other answer].  And, if that other possible answer is "No," "No Comment" must imply "yes"; otherwise, the "No" answer would have no reason to exist.

Already, we are seeing the fall-out of the possibility of "No" being an answer.  Comey testified

(i) that when he last spoke to President Trump, he told Trump that the FBI was not investigating him, and 

(ii) that his statement to Trump was true.  

Items (i) and (ii) are entirely separate things.  Item (i) is an action Comey swears he took in private.  Item (ii) is a public statement about an investigation that Comey swears is true.  It would be practically impossible for Comey to deny item (ii) without raising the possibility that he was lying to Trump, but that's why he should not have added item (ii).  Indeed, if asked whether what he told Trump was true, he should have answered "I can't comment publicly on whether an investigation was ongoing."  That sounds bizarre, and it would likely be treated as bizarre by the bozos who make hay out of things that sound bizarre.  But Comey could logically have said this:

"I can testify publicly to what was said by President Trump and me and to what I have done in connection with the matter.  Neither of those things requires me to make a public statement as to the truth of what I told President Trump, and, because there can be only one such statement - "No comment" - I am making that statement.  You should not infer anything from my statement, as it is the only one I am able to make, and so it carries no information with it, as if I did not hear it being asked.

Information theorists will see the heart of the matter quickly.  Information is anything that reduces the degrees of freedom in a system.  That's a high-sounding, generalized way of saying that if there are two possibilities (yes and no), and a statement about those possibilities causes there to be one possibility ("YES!!"), then that statement carries information.  If the statement does not reduce the number of possibilities ("No comment"), it carries no information, and nothing can be inferred from it.  For that description of things to be valid, however, it is essential that "No Comment" be the only possible answer.  Otherwise, there are more than one possible answers, so giving either one of them reduces the degrees of freedom in the system of answers and carries information.  Thus, there must be only one possible answer to the question if that answer is to deliver no information.

Comey's slippery slope argument says that if the FBI says it is not investigating X, it must also say that it is not investigating anyone else about whom it is asked, unless, of course, it is investigating that person.  So, if the answer isn't "no," it will be read as "yes," even if it is spelled "No comment," and there goes the FBI's ability to investigate someone without publicly saying so.

This is a big deal.  It explains everything about why officials don't say things publicly even when it is clear that they know the answer and may even be clear to everyone what the answer is.  Any deviation from "No comment" makes any subsequent "No comment" more meaningful than it needs to be.

Thus, Comey testified that, in connection with the matter of Secy. Clinton's emails, he was permitted to say, to Congress and in press briefings - it's not clear why - that the FBI had opened a "matter," but not an "investigation."  That bothered Comey, who said "We're the Federal Bureau of Investigation," so it makes no sense for us to open anything but and investigation.  But A.G. Lynch's justification for ordering him to call it a matter was that the FBI does not comment on whether it has opened an investigation.  But, by creating an alternative statement to "No comment," A.G. Lynch had made "matter" mean something other than "No comment," and the only reasonable thing it could be made to mean, when opened by the Federal Bureau of Investigation, was, duh, an investigation.  Again, Comey should have been directed not to say anything about the matter, other than "No comment." And now it looks like the A.G. was trying to provide cover for Mrs. Clinton, when, perhaps, she was trying, unsuccessfully, to adhere to a policy without understanding its most important instrument: "No comment."