Attorney General Jeff Sessions repeatedly refused to answer questions from senators during a Tuesday hearing about his conversations with President Trump on the FBI investigation into Russian interference.
The attorney general cited the need to protect President Trump’s right to invoke executive privilege, and the Department of Justice says this argument is supported by two 1982 memos.
Independent Maine Sen. Angus King asked Sessions why he couldn’t respond to questions about his conversations with President Trump, and Sessions replied that he is “protecting the right of the president to assert [executive privilege] if he chooses.”
Sessions used this answer throughout the hearing as his defense to keep conversations with the president confidential. Democratic New Mexico Sen. Martin Heinrich went so far as to say that the attorney general was “impeding this investigation” by not answering his questions.
A Department of Justice official rejected this and told The Daily Caller: “Declining to answer questions at a congressional hearing about confidential conversations with the President is long-standing executive-branch-wide practice. The basis for this historical practice is laid out in the 1982 memos from President Reagan and then-Assistant Attorney General Olson.”
The 1982 Olson memo generally describes the importance of executive privilege between the president and the attorney general, as it allows the president to receive candid advice.
Reagan’s memo specifically lays out how this relates to congressional inquiries. It says that when Congress requests privileged information, “[t]he department head shall request the Congressional body to hold its request for the information in abeyance” and “expressly indicate that the purpose of this request is to protect the privilege pending a Presidential decision, and that the request itself does not constitute a claim of privilege.”
Former federal prosecutor Andrew McCarthy wrote in National Review: “To be clear, the president’s decision not to assert his privilege in order to prevent the attorney general from appearing at the hearing is not a waiver of the privilege with respect to any individual question to which it may apply.”
“The attorney general’s refusal to answer any individual question is not an invocation of the privilege; it is a pause to enable the president to determine whether to waive the privilege,” McCarthy added.