In Senate Testimony, Sessions Cites Confidentiality

[struggle4progress]

by DARTUNORRO CLARK

... "Did the president ever mention to you his concern about lifting the cloud on the Russia investigation?" asked Sen. Diane Feinstein, D-Calif.

"Senator Feinstein, that calls for communication that I’ve had with the president, and I believe it remains confidential," Sessions replied during often contentious testimony before the Senate Judiciary Committee.

"I do not confirm or deny the existence of any communication with the president," Session added when pressed repeatedly by Feinstein about the firing of Comey in May ...

https://www.nbcnews.com/politics/congress/senate-testimony-sessions-cites-confidentiality-trump-conversations-n811871

[underthematrix]

1. Sessions was asserting executive privilege, a privilege

he cannot assert on behalf of the president.

[Wellstone ruled]

2. Shades of Nixon.

[struggle4progress]

3. Background on Executive Privilege

Aziz Huq
March 23, 2007

The President's .. privileges subsume privileges for ... <1> military, diplomatic, or national security secrets (the state secrets privilege); <2> communications of the President or his advisors (the presidential communications privilege); <3> legal advice or legal work (the attorney-client or attorney work product privileges); and <4> the deliberative processes of the President or his advisors ...

... The Supreme Court .. strongly suggested the presidential communications privilege must yield whenever a coordinate branchs constitutional role is at stake. Nixon I concluded that President Nixon had to yield to a subpoena to preserve the function of the courts under Article III, and Nixon II held that Congress could roll back a former presidents privilege in light of the scope of Congress broad investigative power ... Congress ought to be able to overcome the presidential communications privilege in any instance that it exercises its constitutional powers to legislate and conduct oversight ...

The "deliberative process privilege" ... protects executive branch officials' communications that are "predecisional" and a "direct part of the deliberative process." A document is predecisional if IT was "generated before the adoption of an agency policy" and deliberative if it "reflects the give-and-take of the consultative process" ... Properly invoked, the deliberative process privilege is narrower than the presidential communications privilege ... It is a "common law privilege," not a constitutional one; hence, it is more susceptible to "congressional or judicial negation" than the presidential communications privilege. Further, "the privilege disappears ... when there is any reason to believe government misconduct occurred" ...

... A governmental attorney-client privilege claim .. cannot be sustained in the face of accusations of criminal wrongdoing ...

Courts have distinguished issues of national security from other species of presidential privilege and granted the executive considerably more discretion with regard to such claims ... "Congress, through its congressional intelligence committees, has asserted in principle a legal authority for unrestricted access to intelligence information," with the executive preserving power to determine how that information is shared ... Congress has authority to resist a national security-related privilege claim. History supports this claim ... As a matter of custom therefore, disclosure rather than secrecy has been the default position since the early Republic ...

https://www.brennancenter.org/analysis/background-executive-privilege