Could Sessions Evoke Executive Privilege?

Could Attorney General Jeff Sessions evoke executive privilege to avoid disclosing the details of private conversations with the president while under oath? During his exchange with Senator Martin Heinrich, Heinrich fought back against the Attorney General’s continued refusal to discuss conversations with the president. You can watch the exchange here:



Sessions implied that he could not answer questions about his conversations with the president because of executive privilege. Heinrich maintained that the Attorney General did not have the right to evoke executive privilege, a power that only the president has.



Sessions replied: “It would be inappropriate for me to answer and reveal private conversations with the president when he has not had a full opportunity to review the questions and to make a decision on whether or not to approve such an answer.”



By saying this, Sessions implied that executive privilege not only allows the president to prohibit certain disclosures de dicto, but in fact requires that the president give explicit permission for the disclosure of any such information.



Sessions insisted that he was following the policies of the Department of Justice and working within their guidelines.



Yet do such guidelines actually exist, or was Sessions attempting to get out of questions? A recurring leitmotif throughout the interview was the phrase “I cannot recall” from Sessions, allowing for him to omit details by claiming he experienced a lapse of memory.



In an interview with Vox magazine, Asha Rangappa, a professor of law at Yale, pointed to the ruling of U.S. v. Nixon, citing the court’s decision that executive privilege does not apply to suspected criminal activity.



Other legal experts interviewed by *Vox* held similar opinions, with the exception of Peter Shane, a professor of law at Ohio state university. Shane said:”It is not unprecedented for an executive branch official to decline to provide information about which the president might want to claim executive privilege.” Shane suggested that congress could have Sessions make an inquiry as to whether the President wished to evoke executive privilege first, after which congress could order him to appear for questioning again.



Whatever the case, congress would have had to decided by voting to order Sessions to answer the question, or vote to find him in contempt, neither of which happened.