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Jun 14 2017

The Russian Connection: Sessions’ Obstruction

One of the worst Attorney Generals an administration has produced testified before the Senate Intelligence Committee in a open session. US AG Jefferson Beauregard Sessions III proclaimed over 25 times that he could not remember or recall meetings or conversations with the Russian Ambassador to the US. If this had been a drinking game, there would be a lot of people on life support due to alcohol poisoning.

He also refused to discuss any conversations with Donald Trump even though Trump has not invoked executive privilege. He refused on the fictional grounds that he did not believe it was “appropriate” to reveal what was discussed. He tried to hide behind Justice Department rules that protected conversations with the president even if the president had not invoked executive privilege.

Politifact asked the Justice Department for the written policy and they produced two documents which blew Sessions excuse for not answering out of the water:

Based on Sessions’ testimony, we were looking for the memos to say that an attorney general should not comment on conversations he or she has had with a president or top White House officials, full stop.

But that’s not exactly what the memos say. They acknowledge that the executive branch has an expectation that its communications remain confidential, so they guide the attorney general to consult with the White House counsel about congressional information requests involving White House communications. Then, the president can decide whether to invoke executive privilege to keep those communications confidential if necessary.

In his testimony, Sessions said he didn’t want to answer certain questions without first giving Trump the opportunity to decide whether it would be appropriate to share that information with Congress or keep it confidential. [..]

“Congressional requests for information shall be complied with as promptly and fully as possible, unless it is determined that compliance raises a substantial question of executive privilege,” says one of the 1982 memos, which President Ronald Reagan issued to the heads of executive branch departments and agencies.

However, it’s important to consider that many of the questions Sessions declined to answer were ones that he could have predicted, given the topic of the hearing, noted Duke University law professor Lisa Kern Griffin, an expert in dishonesty and the law. Sessions deflected questions about details of his conversations with Trump about the Russia investigation or the firing of FBI director James Comey.

So Sessions could have asked Trump in advance of the hearing whether an executive privilege invocation would be appropriate. {..]

To fully abide with the policies outlined in the Justice Department memos, Sessions should have made it clear that he planned to consult with Trump about the questions Congress asked him, Kitrosser added.

If Sessions continues to refuse to answer Congress’ questions, and Trump doesn’t invoke executive privilege, Congress could ultimately hold him in contempt or impeach him, said Jamal Greene, a constitutional law professor at Columbia University.

Not that that is likely to happen. Even if Trump decides to invoke privilege, it may not save him or Sessions:

But invoking executive privilege may not be an option for Trump, who has publicly and repeatedly commented on social media and in media interviews on matters ranging from his firing of former FBI Director James Comey to the FBI’s Russia probe.

Legal experts have told ThinkProgress that Trump’s public disclosures regarding Comey’s firing put into question whether his conversations with Comey are protected by presidential executive privilege, a legal doctrine that is not constitutionally guaranteed but that historically has protected a president’s communications.

Constitutional law expert and University of Texas School of Law Professor Stephen I. Vladeck previously told ThinkProgress that a president’s public comments can waive executive privilege for a particular topic.

“Certainly, the more President Trump opens his mouth and/or his Twitter account, the harder it will be for him and his associates to prevail in a fight over executive privilege — but that won’t stop them from invoking it, and from requiring Congress or the courts to sort it out,” Vladeck said via email.

One form of executive privilege is the deliberative process privilege, which involves advice given to the president — for example, during deliberations or the decision-making process of executive officials. Another form of the privilege applies to confidential presidential communications, but doesn’t apply to conversations of a criminal nature, according to Laurence H. Tribe, a professor of constitutional law at Harvard Law School.

The courts have established that executive privilege offers broad protections to communications between the president and his advisers, including discussions and written correspondences with the president. However, presidential communications privilege can be overcome if a prosecutor seeking evidence can demonstrate that the evidence is critical, necessary, and cannot be found elsewhere.

It was announced today that the Senate Judiciary Committee is opening investigation into the firing of FBI Director James Comey

The Wall Street Journal reported on Wednesday that the Senate Judiciary Committee will investigate President Donald Trump’s firing of former FBI Director James Comey.

According to the report, senators want to know if Trump acted improperly when he allegedly fired Comey to influence an investigation into Russia’s hacking of the 2016 U.S. election.

“The Judiciary Committee has an obligation to fully investigate any alleged improper partisan interference in law enforcement investigations,” Chairman Chuck Grassley (R-IA) said in a statement. “It is my view that fully investigating the facts, circumstances, and rationale for Mr. Comey’s removal will provide us the opportunity to do that on a cooperative, bipartisan basis.”

“The American people deserve a full accounting of attempts to meddle in both our democratic processes and the impartial administration of justice,” the chairman added.

Grassley’s statement came after Sen. Diane Feinstein (D-CA) called for an investigation into the firing of Comey.

This goes to the heart of the case for obstruction of justice, one of the many charges that sent Nixon AG John Mitchell to jail. Sessions and Trump are treading on thin ice.