General Sessions and Executive Privilege

Over the last 24 hours, senators, reporters, and political pundits have generated lots of commentary over Attorney General Jeff Sessions’ refusal to reveal his communications with President Trump during testimony before the Senate Intelligence Committee.  Mr. Sessions cited, but did not invoke, the executive privilege as grounds for refusing to testify.

The Washington Post published this analysis quoting lawyers and law professors’ views on executive privilege.  In this online article, CNN reported on Mr. Sessions’ specific testimony and identified two 1982 DOJ memoranda from President Reagan’s administration as support.  The Wall Street Journal had this brief report on Mr. Sessions’ privilege assertion, and the L.A. Times, in this article, reported on Mr. Sessions’ exchanges with Senators Heinrich and King.

You may see Attorney General Sessions’ privilege assertion in response to Senator Heinrich’s questioning in this video clip from PBS NewsHour.

And you may see his explanation for refusing to reveal his communications with President Trump in this video clip from PBS NewsHour.

Mr. Sessions essentially stated that, although President Trump has not specifically invoked executive privilege, he was not at liberty to answer questions until the President had an opportunity to consider the question and then determine whether to invoke the privilege.

Commentators have raised several questions about the executive privilege’s application to Sessions’ testimony, stating that the requested testimony did not involve national security issues or pertain to an ongoing investigation.  And they question whether the Attorney General may refuse to answer questions when the President has not invoked the privilege.

So, let’s examine these issues from a legal, not political, perspective.

First, as explained in my recent post titled Trump, Comey, and Executive Privilege, the “executive privilege” is a broad phrase that encompasses various subcategories of privilege covering military secrets, grand-jury testimony, law-enforcement investigations, agencies’ deliberative processes, and presidential communications.

As with Director Comey’s testimony, Mr. Sessions’ potential testimony revealing his conversations with President Trump fall within the presidential communications privilege.  The presidential-communications privilege protects from disclosure communications that the President and/or his top advisors made in the performance of the President’s responsibilities.  The privilege is qualified and may be overcome by upon a sufficient demonstration of need and that this evidence is not available from alternative sources.

Second, the President holds the presidential communications privilege and only he can waive it. Think of the attorney–client privilege analogy: the client, not the lawyer, holds the privilege and only the client can waive it.  If one asks a lawyer to reveal what her client said in a private meeting, the lawyer would state that she cannot answer unless her client authorizes disclosure.

Here, while Mr. Sessions does not hold the privilege and cannot officially invoke it, he cannot reveal his conversations with the President unless authorized to do so—meaning that the President has decided to waive the privilege.  According to Mr. Sessions, the President has not broadly invoked the presidential communications privilege regarding the testimony, but also has not considered the privilege with respect to the specific questions raised during the hearing.

Third, what is the process for procuring Mr. Sessions’ testimony now that he has refused to answer?  The Senate Intelligence Committee could (1) work with the Trump administration to determine whether he plans to invoke the privilege and, if not, bring Sessions back to answer the questions; or (2) challenge Sessions’ refusal to testify in court and seek a ruling on whether the privilege even applies.

As noted in my earlier post, and my Law360 article, the latter option presents a long, time-intensive process with no quick resolution.  Commentators who claim that a court will not uphold the privilege may be right, or they may be wrong.  The truth is that we will not know until the matter is actually litigated.

POTUS Communications Privilege Protects Legal Memos on bin Laden Raid

On May 1, 2011, Navy SEAL Team Six entered Pakastani airspace, raided Osama bin Laden’s Abbottabad compound, killed the mastermind of the September 11 Attacks, and buried his body at sea.  For a discussion about the raid, watch this interview with the primary trigger man, Navy SEAL Rob O’Neill.

President Obama authorized the military mission and watched the raid unfold via monitors in the White House Situation Room.  But before the president made the decision, he relied upon a variety of legal opinions about the mission, including five memoranda on violation of Pakastani sovereignty, raiding with an intention to kill bin Laden, duty to alert congressional leaders, plans for bin Laden in the event of his capture, and burial options.  Lawyers for the Pentagon, CIA, NSC, and the Joint Chiefs of Staff authored these memoranda.

Judicial Watch, which describes itself as “a conservative, non-partisan educational foundation” that “promotes transparency, accountability and integrity in government, politics and the law,” made a FOIA request to the DoD and CIA seeking documents and communications from government lawyers regarding the authority, analysis, opinions, and conclusions for the raid and killing of Osama bin Laden. More…

Court Imposes Strict Privilege-Log Standards for Deliberative Process Privilege

As discussed in an earlier post, courts are increasingly finding privilege waiver when a party either fails to submit a privilege log or submits an insufficient one.  And a Delaware court has now elevated the privilege-log requirements when a governmental agency asserts the deliberative process privilege.  State Dep’t of Transp. v. Figg Bridge Engineers, Inc., 2013 WL 5365384 (Del. Super. Ct. Aug. 13, 2013). You may access the opinion here.

In Figg, the Delaware DepartmentSlide1 of Transportation asserted the deliberative process privilege in an effort to preclude production of a retained investigator’s analysis of a bridge-embankment failure.  In a ruling profiled in an earlier post, the court refused to recognize the deliberative process privilege.  But the court nevertheless scolded the government agency for its insufficient privilege log.

The Figg court stated that privilege logs must include sufficiently detailed descriptions “so that someone can actually assess whether it makes sense to challenge the document.”  For the deliberative process privilege, it must include—

  1.  The date of each communication;
  2. The parties to the communication, including both names and positions;
  3. The attorneys involved; and
  4. The subject matter of each communique sufficient to show why the privilege is warranted, as well as whether it pertains to the decision or decisions in question, including the facts to bring each document within the narrow reach of the privilege.

The court stated that, in essence, the privilege log must contain information to show that each document is “both pre-decisional and deliberative.”  In other words, the government agency’s privilege log must include enough information to allow the court to determine how each document fits into the deliberative process.  Boilerplate language and conclusory statements do not meet these strict requirements.

The Department of Transportation included dates and descriptions of the putatively privileged documents, with the descriptions including “analysis of,” “analysis of embankment failure report,” “discussion of,” “notes and handouts,” “draft of,” and “notes of.”  The court found these descriptions inadequate because they did not provide sufficient detail or explanation to identify the deliberative material.  And the court emphasized that the government agency must provide a sufficient description for each document, suggesting that the agency lacked good faith because it cut and paste some of the privilege-log entries.