Following Jeff Sessions’ repeated claims Tuesday that it would be "inappropriate" for him to answer certain questions, the New York Times put together a refresher on executive privilege and how it's triggered. The key here appears to be the difference between the letter of the law and what typically happens in practice.
Bottom line: Sessions and other Trump officials appear to have had no legal basis for declining to answer legitimate questions from lawmakers, but subpoenas usually fly before a refusal goes to court and executive privilege is invoked.
Here's some highlights from the piece:
What is executive privilege?
Presidents have claimed the power under the Constitution to prevent the other branches of the government from gaining access to certain internal executive branch information, so that, among other things, the president and top White House aides can communicate confidentially with other officials. The idea is to avoid a chilling effect on the candor of the advice the president receives about his constitutional duties.
Normally, a witness who refuses to answer a question at a congressional hearing can be held in contempt of Congress and face criminal prosecution. Congress could also file a lawsuit asking a judge to order the witness to provide the information, raising the further possibility of being imprisoned for contempt of court. But a valid assertion of executive privilege would provide a lawful basis to decline to answer.
However, executive privilege isn't automatic—the president has to declare that certain topics are off limits. Likewise, information communicated between a president and his deputies isn't shielded by default. So when a dispute arises, lawmakers and the executive often negotiate with each other over what points of inquiry and which responses will be permitted.
How about forcing officials to answer on the spot since they swear to tell "the whole truth"? In theory, lawmakers could have immediately asked the committee chair, Richard Burr in this case, to intervene and force Sessions to answer, said Michael Davidson, who worked as the Senate's top lawyer from 1979 to 1995.
But in practice, Mr. Davidson said, Congress has not acted like that. Every enforcement proceeding in which the Senate went to court during his time as legal counsel, he said, involved a subpoena.
So in the foreseeable future we may be stuck with stonewalling from Trump officials, who have no legal authority to do so. That said, special counsel Robert Mueller will be in a better position to compel responses from the very officials who have declined to answer such inquiries in public, and reportedly he’s already secured interviews with key intelligence officials for his obstruction investigation.