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Thursday, 01 March 2018 05:58

White House Is Steamrolling Congress When It Comes to Executive Privilege

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capitolexecTrump's staff doesn't claim executive privilege on Capitol Hill, but gets it anyway (Photo: brownpau)

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Hope Hicks, White House communications director, yesterday indicated that she was resigning in the near future from her position. It was one day after she testified for nine hours in a private session before the House Intelligence Committee. Although she apparently answered questions about the Trump campaign for president, she refused to answer queries about her time in the White House. Her excuse for not talking about her White House work was that the president might choose to invoke executive privilege over that period in the future. The odd part was that no executive privilege was invoked -- just the threat of it.

According to a February 28 Washington Post article, Hicks, using this ploy, was able to avoid discussing her role, if any, in writing a statement with Donald Trump that defended a key meeting of Donald Trump, Jr., and other Trump staffers with a Russian emissary in Trump Tower in New York. Emails that became public indicated that Donald Trump, Jr., was eager to talk with them about negative material on Hillary Clinton.

The excuse that Hicks could not testify about her working days in the White House because of the potential assertion of executive privilege in the future struck at least one legal expert that the Post contacted as playing fast and loose:

"This is not the first administration to try to get the benefits of executive privilege without formally invoking it," said Heidi Kitrosser, a law professor at the University of Minnesota who wrote a book on the subject. "What is new and really troubling … is that we've seen it quickly become routine that the administration sends out a witness who says, 'I categorically can't discuss this whole set of really important issues because I want to preserve the ability of the president to assert executive privilege.' And then there's no follow up by either the administration or Congress. Essentially, they are allowed to create the shadow of executive privilege, and then they sort of just hide under that shadow."

According to Reuters, the ranking Democrat of the House Intelligence Committee was not pleased: "'This is not executive privilege, this is executive stonewalling,' Representative Adam Schiff, the committee's top Democrat, told reporters after Hicks' testimony."

Hicks is not the first witness from the Trump White House that has employed this strategy of silence on information relevant to the committee. Steve Bannon, for example, used the same maneuver, even though he had already left the White House when he testified.

The Post also offered an example of the withholding of information from the Senate Russian investigations:

Attorney General Jeff Sessions repeatedly declined to answer questions from the Senate Intelligence Committee last June and the Senate Judiciary Committee last October about what transpired before Trump fired James Comey as FBI director. He was asked eight times during the June appearance whether he was formally invoking executive privilege.

"I'm not claiming executive privilege, because that's the president's power, and I have no power to claim executive privilege," Sessions said. "I am protecting the right of the president to assert it if he chooses."

This approach is politically understandable, however dodgy it actually is. After all, if he actually asserts executive privilege, Trump will appear to be hiding incriminating information. However, by having his subordinates protect him with the option to assert executive privilege down the line, Trump escapes the perception that he has something to hide.

NPR provides a background sheet on executive privilege which reveals that the term was first used by Dwight D. Eisenhower. However, executive privilege was used by presidents long before the term itself was deployed: The use of this tool goes back to George Washington. Some presidents succeed in their claims of executive privilege when being investigated; some do not. NPR points to Richard Nixon as being one of the latter:

During the Watergate investigation, though, President Nixon failed in his attempts to withhold White House audio recordings from special prosecutor Leon Jaworski. Nixon handed over the tapes and, four days later, resigned. In his memoirs, Nixon wrote dejectedly, "I was the first president to test the principle of executive privilege in the Supreme Court, and by testing it on such a weak ground, I probably ensured the defeat of my cause."

Note that Nixon was making an actual assertion of executive privilege, rather than having his staff refuse to answer questions on a possible claim in the future.

It should be noted that Special Counsel Mueller is making some of the same queries as the Senate and House committees, but he has the advantage of the formidable threat of testifying before a grand jury. Claims of executive privilege become a bit wobbly when a subpoenaed witness is facing a possible indictment.

Given that both houses of Congress are controlled by Republicans – including the chairmanship of the investigating committees – it appears there will be no action to compel testimony on White House activity regarding investigations when the Trump pseudo-executive privilege strategy is used.

For the time being, Trump's present and former staff are offering a sham excuse to avoid testifying about the facts surrounding the Russian investigations.