Politics & Policy

Legal Privileges Do Not Obstruct Justice

The questioning of Attorney General Jeff Sessions by Senator Martin Heinrich (D., N.M.) demonstrates why congressional hearings are theater, not searches for the truth.

Senator Heinrich pressed the attorney general to disclose the contents of conversations with President Trump. As a matter of policy, the attorney general does not answer such questions in order to protect the president’s power to invoke executive privilege. Heinrich may not like that privilege (at least with a Republican in the White House), but it is recognized in law. Knowing Sessions would not answer the questions, Heinrich proceeded to accuse the attorney general of obstruction — allegations of obstruction having become a Democratic fetish now that the Obama administration is no longer in power and matters such as “Fast and Furious” and the IRS abuse of conservative groups are no longer the focus of congressional hearings.

There are many relationships as to which the law protects the confidentiality of communications: marital, doctor-patient, attorney-client, priest-penitent, and so on. There is also, of course, the privilege against self-incrimination. In a trial, where a judge presides and ensures that lawyers don’t play unfair games, the lawyers know they are not supposed to ask questions in front of the jury that will induce the witness to refuse to answer. The lawyer knows that if the witness is asserting a legitimate legal privilege, the lawyer is not supposed to try to make it look like the witness is obstructing the proceeding. In fact, if a prosecutor refers to the defendant’s refusal to answer questions, it can result in a mistrial, so seriously does the law take the protection of this privilege.

Congressional committees go kangaroo court in this regard. There is no judge to tell them to knock it off.

Senator Angus King (I., Maine) followed up on Heinrich’s “obstruction” shenanigans by, first, establishing that President Trump did not invoke executive privilege in order to prevent Sessions from testifying; then, he got Sessions to acknowledge that the privilege belongs to the president and the attorney general is not empowered to invoke it. Adding two and two but coming up with five, Senator King expressed outrage that Sessions proceeded to refuse to answer questions about his discussions with Trump.

To be clear, the president’s decision not to assert his privilege in order to prevent the attorney general from appearing at the hearing is not a waiver of the privilege with respect to any individual question to which it may apply. And the attorney general’s refusal to answer any individual question is not an invocation of the privilege; it is a pause to enable the president to determine whether to waive the privilege. If the privilege is waived, then the attorney general will answer. And if senators want to advance the inquiry rather than create a misimpression of obstruction, they can submit the questions in writing ahead of time and ask whether the president will waive the privilege.

Of course, legal propriety has to be balanced against political accountability. It is important that Congress and the public be informed about any questions as to which the president is invoking executive privilege. But it is wrong to suggest that the attorney general is obstructing a congressional investigation by protecting a legitimate legal privilege.

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