By Irvin B. Nathan,
Irvin B. Nathan served as general counsel of the House of Representatives from 2007 to 2011 and attorney general of the District of Columbia from 2011 to 2014. He also served as deputy assistant attorney general and principal associate deputy attorney general in the Justice Department.
Officials in the Trump administration don’t seem to have much respect for congressional oversight. Some officials — including Attorney General Jeff Sessions, Director of National Intelligence Daniel Coats and National Security Agency Director Michael S. Rogers — have refused to answer questions about presidential communications, either because they asserted it was “inappropriate” to do so or because they claimed they wanted to preserve the president’s option to assert executive privilege.
The administration has no right to stonewall like this. It’s time for members of Congress to start using their legal powers to compel answers.
I was general counsel of the House of Representatives during the oversight investigation into President George W. Bush’s political firings of several U.S. attorneys. At the time, top White House aides refused to obey congressional subpoenas to testify or produce documents, claiming they were immune from the congressional process. They even refused to appear at the scheduled hearings.
The House filed suit (with all Republicans abstaining) to compel compliance, and U.S. District Judge John Bates — appointed by Bush — agreed. Bates rejected the claim that White House staff members were immune from congressional subpoenas, requiring White House Counsel Harriet Miers to answer the questions under oath or assert executive privilege on a question-by-question basis.
This, of course, is the way it is for all subpoenaed witnesses in congressional hearings, whether in official positions or not. A refusal by a subpoenaed witness to answer a question, unaccompanied by an assertion of a recognized privilege, is contempt of Congress. After appropriate formalities, lawmakers can enforce this through a criminal prosecution or an arrest by the House sergeant-at-arms.
It is true that Sessions, Coats and Rogers were not subpoenaed; they were invited and did not testify under compulsion. But nothing prevents the committees from issuing subpoenas and demanding answers.
Sessions was particularly cagey in his testimony to Congress, refusing to answer some questions in order to give the White House time to reflect on whether to assert executive privilege — that is, the power of the president to withhold certain information from the courts and Congress. In this, Sessions claimed he was following established Justice Department policy, but there is no such policy, especially when notice of the hearing is provided well in advance and the subject matter is well known to the White House.
The Justice Department produced two memos written during the Reagan administration to support Sessions’s assertion. But neither memo authorized a refusal to answer a question from Congress, and only one of the memos appears to apply to future administrations.
In fact, the Clinton administration tried a strategy similar to Sessions’s and failed. In 1996, White House Counsel Jack Quinn declined to meet the deadline of a House subpoena, opting instead to give the president time to consider asserting executive privilege. The committee held Quinn in contempt. The subpoenaed documents were produced shortly thereafter.
In the abstract, President Trump may qualify for executive privilege regarding Sessions’s advice to fire FBI Director James B. Comey. But such a claim would have to be balanced against what the president publicly discussed on national television and with Russian officials after firing Comey. The White House also publicly released internal Justice Department documents about the department’s recommendations to fire Comey. Congressional committee members would have to take these statements into consideration in evaluating any claim of privilege, and so would the final analysis by the courts.
Most assertions of executive privilege in response to congressional demands are worked out by compromise without court litigation. But in virtually all those situations, compromise is reached only after each side asserts its constitutional prerogative. That means the president has to claim executive privilege, and if he does not, Congress has to pursue contempt against the uncooperative witnesses. In the past, similar evasions have been met with subpoenas backed by at least a threat of a contempt.
Congress and the public will not get the answers they deserve until lawmakers issue subpoenas and pursue contempt charges against officials who deem questions “inappropriate” to answer. If congressional committees are serious about getting to the bottom of their investigations, they will have to be much more aggressive and use the tools provided by the Constitution and the courts.
Read more on this topic: Jennifer Rubin: Executive privilege won’t save Trump Steve Vladeck: Trump’s lawyer says Comey violated executive privilege. He’s wrong. George K. Yin: Congress has the power to obtain and release Trump’s tax returns