Editor’s Note: This article has been updated to include Jeff Sessions’ opening statment. Text at the end of this story, explaining the power of executive privilege, has been slightly altered.
When U.S. Attorney General Jeff Sessions testified before the Senate Judiciary Committee on Wednesday, he refused to comment on his conversations with President Donald Trump.
Sessions’ silence speaks volumes.
In May, the president fired FBI Director James Comey, the man responsible for investigating the Trump campaign’s possible ties to Russian interference in the 2016 election. If the action was deliberately meant to impede this investigation, it would likely be considered obstruction of justice — an impeachable offense.
What many senators want to know is whether Sessions was privy to the president’s motivations. During the testimony, the attorney general confirmed he met with Trump before writing a letter recommending Comey’s ouster. In regard to what was discussed during this meeting, Sessions is staying mum.
The exchange with Sen. Dianne Feinstein, a Democrat from California, is quite telling:
Feinstein: I wanted to ask you a question or two about the firing of the FBI director; specifically, I have your letter dated May 9 to the president. Specifically, what was your designated role in the decision to fire director Comey?
Sessions: It is — it’s a matter that I can share some information about, because the president, I’m sorry, has talked about it and revealed or — that letter. He asked that Deputy Rosenstein and I make our recommendations in writing. We prepared those recommendations and submitted it to the president.
Sen. Feinstein, I don’t think it’s been fully understood that the significance of the error that Mr. Comey made in the Clinton matter. I don’t think I’ve heard of a situation in which a major case in which the Department of Justice prosecutors were involved in an investigation, that the investigative agent announces the closure of the investigation. And then a few weeks before this happened, he was testifying on — before the Congress, well, Comey was, and he said he thought he did the right thing and would do it again.
So the Deputy Attorney General Rosenstein, who’s got, what, 27 years in the Department of Justice, Harvard graduate, served for eight years, as U.S. attorney on the, under President Obama and four years under President Bush, he said that was a usurpation of the position of the Department of Justice, that position. But particularly we confirmed that he reaffirmed he would do it again. I think that’s a basis that called requester a fresh state after the FBI. Mr. Comey had many talents. There’s no doubt about it. No hard feeling about that. But I am really excited about the new director, Chris Wray, who you’ve confirmed with an overwhelming vote and I believe he’s going to be able to do the job of FBI director with great skill and integrity.
Feinstein: What exactly did President Trump tell you was his reason for firing Director Comey? I know he has said he thought the department was a mess and he asked you and Mr. Rosenstein to take a look at it, and my understanding was these two letters were presented, the letter from you, dated May 9, and the letter from Rosenstein, dated the same date, a response to that request, to take a look at the department.
Sessions: That’s what I can tell you. He did ask for our written opinion, and we submitted that to him. It did not represent any change in either one of our’s opinion as Deputy Rosenstein has also indicated, I believe. And we were asked to provide it, and we did.
Feinstein: Did the president ever mention to you his concern about lifting the cloud on the Russia investigation?
Sessions: Sen. Feinstein, that calls for a communication that I’ve had with the president, and I believe it remains confidential.
Feinstein: But you don’t deny that there was a communication?
Sessions: I do not confirm or deny the existence of any communication between the president that I consider to be confidential.
Feinstein: When did you first speak with the president about firing Director Comey? What date?
Sessions: Sen. Feinstein, I think that’s also covered by my opening statement. I believe the president has the right and I have a duty to meet with him on proper occasions and provide such advice, legal or otherwise, as I’m called upon to do. I have done that. And I believe he has a right to protect that confidentiality until appropriate circumstances exist that he might choose to waive that privilege.
The opening statement to which Sessions refers does indeed sum it up rather nicely:
Sessions: I can neither assert executive privilege nor can I disclose today the content of my confidential conversations with the president.
The attorney general’s argument is that revealing the content of his conversation with the president prevents Trump from being able to invoke executive privilege at a later date, if he so chooses. Executive privilege refers to the executive branch’s ability to resist subpoena power, or compelled testimony, from other branches of government in some instances.
This argument is dubious, at best. Even if executive privilege can be invoked, it hasn’t been. The mere possibility that it may be asserted in the future is irrelevant. This distinction makes all the difference — and it’s an easy thing to remedy. If the president really wishes to invoke executive privilege, he can say so whenever he wants.
The desperate nature of this line of argument makes it seem as if Sessions is trying to hide something. Does he possess information that would doom the Trump presidency if revealed? For now, one can only guess. ■