How did Trump use the privilege of being an executive

What is the expectation that US intelligence services will have to answer questions raised in Congressional hearings?


Basically you have to answer all questions, unless -

  1. The witness is exercising his right to self-blame under the fifth amendment
  2. The information is classified
  3. the President asserts his "executive privilege"
  4. The question is outside the scope of the hearing
  5. The question is about investigative information in a criminal case
  6. it is against common law, such as: "A husband or wife cannot be compelled to testify against their spouse; a lawyer cannot be compelled to disclose certain matters about his client, and so on."


According to this CRS report, they have witnesses just Rights and property rights under the Constitution.

Witness rights

No witness may refuse to testify because such a testimony "may tend to shame him or otherwise render him notorious" (2 USC 193). Witnesses at Senate hearings are protected mainly through their constitutional rights and the rules adopted by individual committees . The Protection of the Constitution includes the first, fourth and fifth amendments. While the committees may seek documents from witnesses, the fourth amendment prohibits improper search and seizure for information. The first amendment protects witnesses who may attempt to refuse to comply with a committee subpoena by alleging that the committee violated the witness's right to freedom of expression, assembly, or petition. After the fifth amendment protects against self-indictment, witnesses cannot be compelled to testify against themselves unless they are granted immunity.

(Emphasis mine)

So in theory, they should answer all of the senators' questions.

However, during Attorney General Jeff Session's public testimony prior to the Senate Intelligence Committee hearing (held a week after the intelligence community testified), he also refused to answer questions about his talks with President Trump, pointing out the "longstanding policy of Justice Department "" not to comment on talks with the President or protect the president's right to exercise executive privilege when he so wishes .

Politifact then asked the Justice Department for the "longstanding policy" and managed to get two memos from 1982 (Reagan administration) [one, two] and one from 2009 (Obama administration).

The 1982 memo actually states:

Pending a final decision by the President on this matter, the division head will request the congressional body to provide its request for information. The head of department expressly advises that the purpose of this motion is to protect the privilege pending a decision by the president and that the motion itself does not constitute a claim to privilege.

And Politifact further noted that what Sessions said is not exactly what is stated in the memos, but it is partially correct and quite "long-time".

But that's exactly what the memos don't say. They acknowledge that the executive branch expects their communications to remain confidential and instruct the attorney general to consult with the White House attorney about requests for information from Congress regarding the White House communications. The President can then decide whether to exercise the executive privilege to keep these communications confidential if necessary.

The reasoning used by US intelligence agencies for their refusal to answer the questions posed is somewhat similar to Session's reasoning, as both mention that they protect the president's right to invoke executive privilege.

The attorney general isn't the first administrative officer to find it difficult to answer sensitive questions related to talks with Trump. Senators berated National Intelligence Director Dan Coats and National Security Agency Director Michael Rogers last week as they distracted questions about whether the president had asked them to intervene in the Justice Department's ongoing investigation into possible collusion between the Trump campaign team and Russian government officials. Rogers told lawmakers that he had asked the White House in advance if it was claiming executive privilege, but never received a response. That made him stumble to avoid answering questions that could be embarrassing for the White House without clear legal authority.

(Emphasis mine)


Further reading:

And here are some opinions of 10 law professors, although most of them mainly argue that the president did not officially invoke executive privilege so they should be able to answer any questions.

VG Crutchfield

He's absolutely right that he shouldn't reveal any discussion that may be part of an ongoing FBI investigation. It is a recognized law enforcement concept that disclosure of testimony could hamper the investigation by exposing its scope, focus, goals, and techniques that would help the targets evade detection, destroy evidence, or expose fabricate and disturb sources. Perhaps he could cite Title 28 CFR 16.96 (b) (1) or Title 5 USC 552 (b) (7) or the more definitive exemptions from 5 USC 552 under 31 CFR 1. 36 (h) (2).

James Olson

Of primary concern to your question is the fact that the witnesses did so without being served with a summons to testify.

Voluntary testimony is voluntary and not subject to Congress' recourse to the contempt of congressional process.

The type of (voluntary) testimony you are referring to can be thought of as an informal "question and answer" process, similar to the type of questions and attitudes that might be the subject of a criminal investigation. by a police officer as a witness to a crime before being deposed as a precursor to the trial.

At such a point, one may be inclined to "become an attorney" if there is a chance her testimony could incriminate itself and one would in fact refuse to respond unless a court ordered a subpoena.


In this case, is it important to be sworn in?

James Olson

"Sworn" only refers to the credible veracity of the answers, as well as the credibility of the testator. Despite the "truth, the whole truth, and nothing but the truth" of the oath, one swears, without a subpoena, a "no comment" or circumvention of the question ... other than frustration and a more compelling argument around a subpoena to serve.