Key figures in President Donald Trump’s White House are
claiming that executive privilege keeps them from testifying
before the investigations into Russia’s meddling in the 2016
The White House claims that pretty much everything is
off limits until the president says it’s not.
But members of Congress on both sides of the aisle are
criticizing the move, and legal experts aren’t sure how long
the argument can hold up.
WASHINGTON (AP) — President Donald Trump’s White House is relying
on a sweeping interpretation of executive privilege that is
rankling members of Congress on both sides of the aisle as
current and former advisers parade to Capitol Hill for
questioning about possible connections with Russia.
The White House’s contention: Pretty much everything is off
limits until the president says it’s not.
The argument was laid bare this week during former White House
chief strategist Steve Bannon’s interview with the House
Intelligence Committee. As lawmakers in the closed-door session
probed Bannon’s time working for Trump, his attorney got on the
phone with the White House counsel’s office, relaying questions
and asking what Bannon could tell Congress, according to a White
House official and a second person familiar with the interview.
The answer was a broad one. Bannon couldn’t discuss anything to
do with his work on the presidential transition or later in the
White House itself.
The development brought to the forefront questions about White
House efforts to control what current and former aides may or may
not tell Congress about their time in Trump’s inner circle, and
whether Republicans who hold majorities on Capitol Hill will
force the issue.
It was also the broadest example yet of the White House using
executive privilege to limit a witness’ testimony without making
a formal invocation of that presidential power.
On Wednesday, White House officials said that the phone calls
with the counsel’s office were standard procedure followed by
past administrations in dealings with Congress. They argued that
Bannon, like every current and former member of the
administration, starts under the assumption that he is covered by
executive privilege and can only answer certain questions unless
Trump explicitly says otherwise.
But members of Congress, including Republicans, criticized the
move. The House panel’s top Democrat called it effectively a “gag
order.” The committee’s Republican chairman, Devin Nunes of
California, served a subpoena on Bannon in an attempt to compel
him to answer.
Lawmakers will be closely watching another interview later this
week to see how the White House responds. Trump’s longtime
spokeswoman Hope Hicks is to appear Friday for a closed-door
interview with committee, according to a person familiar with the
panel’s work. The person spoke on condition of anonymity because
the person wasn’t authorized to speak publicly about the matter.
The criticisms echoed those from last summer when Attorney
General Jeff Sessions baffled some lawmakers by refusing to
answer questions about his conversations with the president,
while also maintaining he was not citing executive privilege.
Following Sessions’ testimony before the Senate Intelligence
Committee, Democratic Sen. Sheldon Whitehouse said, “As someone
who served in the Justice Department, I would love to know what
he is talking about.”
Michael Dorf, a constitutional law professor at Cornell
University, said that while traditionally Congress has required a
formal assertion of executive privilege in order for a witness to
refuse to answer a question, more recently “we’ve seen people
just not answer questions without asserting privilege.”
“It’s kind of a game of separation-of-powers chicken that’s going
on there,” he said. “Because nobody knows the full scope of
executive privilege — other than that it’s not absolute from the
Nixon case — no one really wants to push it.”
Dorf referred to the court case surrounding the Supreme Court’s
rejection in 1974 of President Richard Nixon’s assertion that he
could use executive privilege to prevent the release of tape
recordings involving him and other aides. Dorf said it does seem
unusual for a witness’ lawyer to consult in real time with the
White House about which questions can be answered, it is a “bit
more respectful” than a pre-emptive blanket refusal to answer
Bannon’s attorney, Bill Burck, spoke with Uttam Dhillon, deputy
White House counsel. Burck is also representing top White House
lawyer Don McGahn in special counsel Robert Mueller’s
investigation into contacts between the Trump campaign and
The White House official and a second person familiar with
Bannon’s interview who confirmed the conversations spoke only on
condition of anonymity because they were not authorized to speak
At the White House, press secretary Sarah Huckabee Sanders
confirmed the questions were relayed over the phone and said it
was a typical process.
“Sometimes they actually have a White House attorney present in
the room,” she said. “This time it was something that was relayed
via phone and again was following standard procedure for an
instance like this and something that will likely happen again on
any other number of occasions, not just within this
administration but future administrations.”
On Wednesday, the AP also confirmed that Bannon will meet with
Mueller’s investigators for an interview instead of appearing
before a grand jury. A person familiar with that issue confirmed
the interview. That person was not authorized to speak publicly
about private conversations.
Peter Carr, a spokesman for the special counsel’s office,
White House lawyers to date have prided themselves on their
cooperation with Mueller, making documents and witnesses
available upon request without asserting privileges that could
slow the investigation in a protracted legal fight. The goal of
the cooperation, from the White House perspective, has been to
help the investigation conclude as quickly as possible.
That posture has not been uniformly extended to Congress, though.
And Wednesday, there were new signs other Trump associates would
be less than totally forthcoming.
Rep. Adam Schiff of California, the ranking Democrat on the House
Intelligence Committee, said former Trump campaign manager Corey
Lewandowski, who never served in the Trump administration, had
adopted the administration’s posture in his interview with the
committee. After saying he would answer all of the committee’s
questions, Lewandowski on Wednesday refused to answer any about
things that happened after his time on the campaign, saying he
wasn’t prepared, Schiff said.
“We as an investigative committee cannot allow that to become
routine,” Schiff said.
There were signs, though, that not all administration officials
were expected to do the same.
Schiff said that in an interview with another administration
official, “there was no claim of privilege, no claim that these
periods of time were off limits. And no effort to hide behind a
later potential invocation of privilege by the executive,” Schiff
He didn’t refer to the official by name, but it was White House
deputy chief of staff, Rick Dearborn.