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Legal Analysis

Sessions Could Try to Use Executive Privilege at Senate Hearing, But It Sure Won’t Be Easy

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Attorney General Jeff Sessions is reportedly planning to invoke executive privilege to avoid answering certain questions about conversations he’s had with President Donald Trump when he testifies before the Senate Intelligence Committee on Tuesday. Of course, this raises the question of whether executive privilege even applies to this situation.

Executive privilege is meant to shield the President from disclosure of sensitive information, protecting the executive branch from the demands of the other branches of the federal government, in this case, Congress. But that privilege has limits. The Supreme Court recognized in United States v. Nixon that the privilege does not extend to covering up alleged misconduct. So if Senators ask questions that could unearth illegal activity, Sessions should not be allowed to hide behind the curtain of executive privilege.

There is, however, a privilege protecting matters of national defense or pecuniary interests. So Sessions probably could invoke it for any questions that brush up against national security issues. Sessions might use national security as an excuse to get around questions referring to conversations between Sessions and Trump regarding Russia that took place after Trump’s inauguration. However, questions dealing with the Trump campaign’s activities prior to the inauguration could be fair game, since at that point, neither Sessions nor Trump were part of the executive branch.

[Image via C-SPAN screengrab]

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