WH: Exec. Privilege in Russia Probe 01/18 06:03
President Donald Trump's White House is relying on a sweeping interpretation
of executive privilege that is rankling members of Congress on both sides of
the aisle as current and former advisers parade to Capitol Hill for questioning
about possible connections with Russia.
WASHINGTON (AP) -- President Donald Trump's White House is relying on a
sweeping interpretation of executive privilege that is rankling members of
Congress on both sides of the aisle as current and former advisers parade to
Capitol Hill for questioning about possible connections with Russia.
The White House's contention: Pretty much everything is off limits until the
president says it's not.
The argument was laid bare this week during former White House chief
strategist Steve Bannon's interview with the House Intelligence Committee. As
lawmakers in the closed-door session probed Bannon's time working for Trump,
his attorney got on the phone with the White House counsel's office, relaying
questions and asking what Bannon could tell Congress, according to a White
House official and a second person familiar with the interview.
The answer was a broad one. Bannon couldn't discuss anything to do with his
work on the presidential transition or later in the White House itself.
The development brought to the forefront questions about White House efforts
to control what current and former aides may or may not tell Congress about
their time in Trump's inner circle, and whether Republicans who hold majorities
on Capitol Hill will force the issue. It was also the broadest example yet of
the White House using executive privilege to limit a witness' testimony without
making a formal invocation of that presidential power.
On Wednesday, White House officials said that the phone calls with the
counsel's office were standard procedure followed by past administrations in
dealings with Congress. They argued that Bannon, like every current and former
member of the administration, starts under the assumption that he is covered by
executive privilege and can only answer certain questions unless Trump
explicitly says otherwise.
But members of Congress, including Republicans, criticized the move. The
House panel's top Democrat called it effectively a "gag order." The committee's
Republican chairman, Devin Nunes of California, served a subpoena on Bannon in
an attempt to compel him to answer.
Lawmakers will be closely watching another interview later this week to see
how the White House responds. Trump's longtime spokeswoman Hope Hicks is to
appear Friday for a closed-door interview with committee, according to a person
familiar with the panel's work. The person spoke on condition of anonymity
because the person wasn't authorized to speak publicly about the matter.
The criticisms echoed those from last summer when Attorney General Jeff
Sessions baffled some lawmakers by refusing to answer questions about his
conversations with the president, while also maintaining he was not citing
executive privilege. Following Sessions' testimony before the Senate
Intelligence Committee, Democratic Sen. Sheldon Whitehouse said, "As someone
who served in the Justice Department, I would love to know what he is talking
Michael Dorf, a constitutional law professor at Cornell University, said
that while traditionally Congress has required a formal assertion of executive
privilege in order for a witness to refuse to answer a question, more recently
"we've seen people just not answer questions without asserting privilege."
"It's kind of a game of separation-of-powers chicken that's going on there,"
he said. "Because nobody knows the full scope of executive privilege --- other
than that it's not absolute from the Nixon case --- no one really wants to push
Dorf referred to the court case surrounding the Supreme Court's rejection in
1974 of President Richard Nixon's assertion that he could use executive
privilege to prevent the release of tape recordings involving him and other
aides. Dorf said it does seem unusual for a witness' lawyer to consult in real
time with the White House about which questions can be answered, it is a "bit
more respectful" than a pre-emptive blanket refusal to answer questions.
Bannon's attorney, Bill Burck, spoke with Uttam Dhillon, deputy White House
counsel. Burck is also representing top White House lawyer Don McGahn in
special counsel Robert Mueller's investigation into contacts between the Trump
campaign and Russia.
The White House official and a second person familiar with Bannon's
interview who confirmed the conversations spoke only on condition of anonymity
because they were not authorized to speak publicly.
At the White House, press secretary Sarah Huckabee Sanders confirmed the
questions were relayed over the phone and said it was a typical process.
"Sometimes they actually have a White House attorney present in the room,"
she said. "This time it was something that was relayed via phone and again was
following standard procedure for an instance like this and something that will
likely happen again on any other number of occasions, not just within this
administration but future administrations."
On Wednesday, the AP also confirmed that Bannon will meet with Mueller's
investigators for an interview instead of appearing before a grand jury. A
person familiar with that issue confirmed the interview. That person was not
authorized to speak publicly about private conversations.
Peter Carr, a spokesman for the special counsel's office, declined comment.
White House lawyers to date have prided themselves on their cooperation with
Mueller, making documents and witnesses available upon request without
asserting privileges that could slow the investigation in a protracted legal
fight. The goal of the cooperation, from the White House perspective, has been
to help the investigation conclude as quickly as possible.
That posture has not been uniformly extended to Congress, though. And
Wednesday, there were new signs other Trump associates would be less than
Rep. Adam Schiff of California, the ranking Democrat on the House
Intelligence Committee, said former Trump campaign manager Corey Lewandowski,
who never served in the Trump administration, had adopted the administration's
posture in his interview with the committee. After saying he would answer all
of the committee's questions, Lewandowski on Wednesday refused to answer any
about things that happened after his time on the campaign, saying he wasn't
prepared, Schiff said.
"We as an investigative committee cannot allow that to become routine,"
There were signs, though, that not all administration officials were
expected to do the same.
Schiff said that in an interview with another administration official,
"there was no claim of privilege, no claim that these periods of time were off
limits. And no effort to hide behind a later potential invocation of privilege
by the executive," Schiff said.
He didn't refer to the official by name, but it was White House deputy chief
of staff, Rick Dearborn.