Wednesday, 14 June 2017 11:50

Sessions's faux presidential privileges raises more questions, than answers

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U.S. Attorney General Jeff Sessions testified before the Senate Intelligence Committee on Tuesday. In that testimony Sessions claimed he wasn’t asserting Executive Privilege when he refused to answer questions that dealt with the existence of any conversations he and Donald Trump might have had about Russia and James Comey, FBI Director. Sessions claimed he couldn’t talk about anything about which the President might wish to exert a privilege, himself, at a later date.

The most pertinent questions, therefore, remain in limbo until the President talks under oath, if ever. The demurred questions could have revealed whether, or not, Trump fired Comey to impede an FBI investigation into Russian meddling in the 2016 election. If Trump encouraged the meddling, or acquiesced in it, that would constitute a per se obstruction of justice. To avoid revealing damning information, if any, Sessions asserted the doctrine of Executive Privilege, even as he said he wasn’t. It was a high-class version of the “who’s on first” routine.

Sessions said that he hadn’t been briefed about, nor inquired into, Russian interference in the election. This assertion, however improbable, allowed him to place reliance for the firing, once again, on the memo, written by Rod Rosenstein, Deputy Attorney General, recommending Comey’s termination. In it, Rosenstein asserted that Comey was doing a bad job though this allegation was never discussed with the Director. Instead, the President called him names.

Sessions testified that he concurred in the Rosenstein recommendation and sent it, with cover letter, to the President who terminated Comey on grounds that included, but were not not limited to, mishandling the Hillary Clinton private email “matter.” It’s all very convenient, but somewhat disingenuous, since the President told NBC’s Lester Holt that he’d decided to fire Comey, almost from the start, because of Russia.

That Sessions resurrected the old “blame Rosenstein” line was surprising since the President had debunked it. Privately, it’s been said that Rosenstein expressed distaste for this version of the facts and threatened to resign because he was being made the fall guy. This miscalculation by the Administration may have led the Deputy Attorney General to appoint Robert Mueller, a dogged investigator, as Special Counsel. Trump, again, may have proven himself  to be his own worst enemy.

What no one on the Committee mentioned is that Executive Privilege, which includes the implied right to keep Presidential communications confidential, outside of which no such right exists, is qualified. A balancing act is required before the privilege can be successfully upheld in a court of law. One factor in the balancing requires a weighing of the public’s right to know measured against the Executive’s need to keep deliberative matters confidential. There is, however, another important measure. It’s the one that sunk Richard Nixon. The Executive can’t conceal crimes, or thwart investigations, by asserting the privilege.

Of the pertinent questions is the one that would have revealed more about the President’s actions once he became aware of the FBI’s Russia investigation Sessions didn’t know anything, couldn’t recall, or wouldn’t say. While there’s no direct legal remedy available to the public at large to challenge the government for its actions, there are remedies usable by specific individuals, or classes, who can allege direct harm from questionable governmental actions. Number here the Senate and news media.

There, also, were questions about the recent rumors that Special Counsel Robert Mueller’s job was in jeopardy. It appears they’ll remain rumors because even Sessions did not assail Mueller and Rosenstein endorsed him earlier in the day in separate testimony, as did Paul Ryan in public comments. If Trump removes Mueller, at this point, he should pack his bags and head back to New York. Even his own party agrees on this.

 

 

Last modified on Wednesday, 14 June 2017 11:59
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