In his sworn testimony in an open hearing of the Senate Intelligence Committee on Tuesday, Attorney General Jeff Sessions repeatedly invoked what he insisted was a long-standing policy of the Justice Department not to speak about any conversation he had with the president -- even extended to something as mundane as whether the president asked him to leave the room so he could talk to James Comey alone.
Sessions acknowledged that the president had not invoked executive privilege and that only the president can do that. Still, he insisted that he was refusing to discuss his conversation to preserve for the president the option to do so in the future. Sessions was repeatedly challenged to cite the legal authorization for this claim, since he was under oath to "tell the whole truth." He could not.
Therefore Sean Illing, writing for vox.com news service has consulted ten legal experts about this. He writes:
"All but one of the experts rejected Sessions’s argument on its face, insisting that Sessions is legally permitted to discuss conversations with the president, provided the president hasn’t yet invoked executive privilege (which he hasn’t). One expert believes there is a precedent for Sessions’s actions, but that Congress can — and should — compel him to answer their questions."
No one accepted the vague Justice Department "policy" or "regulations" that Sessions referred to but couldn't say for sure that there is actually a written regulation on it. Even if there were, the legal experts said it would not override the right of an oversight committee hearing to have him answer the questions, as long as the president has not exerted executive privilege.
Even the tenth legal expert would not go further than saying there is precedent for doing what Sessions did. But then he offered this suggestion: the committee should give the president a date certain by which he would exert privilege, or else the committee could recall Sessions and compel him to testify fully.
But how do you compel Sessions to testify? He would have to be held in contempt of congress. This would then lead to a court trial -- with all the delays built into that. So it's probably not worth going that route.
Trump and Sessions may have finessed this, for now. By not evoking privilege, Trump avoided the outrage and charges of "cover-up" that would ensue. By taking this middle ground of "preserving the right to invoke privilege," even though it won't hold up, Sessions tested the waters. If the committee decided to push it -- like beginning contempt proceedings -- then Trump can always step in and invoke the privilege.
So the best way forward is probably what that tenth expert, Ohio State law professor Peter Shane suggested: demand an answer from the president by a certain date; if he does not then invoke privilege, bring Sessions back -- and question him again, without allowing his phony "preserve the president's options" excuse.
Beyond whether there is legal justification, however, is the political and practical effect of Sessions' stonewalling. First, he may have restored himself at least temporarily in the good graces of the president, who has been angry that he recused himself in the first place. Second, it appeared that he evoked frustration and probably anger in all of the Democrats on the committee and even some of the Republicans. And finally he made himself the object of ridicule. Steven Colbert had a field day mimicking him and heaping scorn on his performance.
But even beyond that, at least to me, he showed himself unfit for the office of Attorney General. Here we have all of our intelligence and national security agencies in agreement that the Russians hacked into our political process. And the Attorney General has largely ignored this; he even seemed uninterested enough even to read reports about it. We can't count on him to do anything to protect us in the future. Fortunately there are other agencies that will. Jefferson Beauregard Sessions III should be fired -- if only we had a president that wasn't in Russia's debt somehow.