Washington – 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.
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,” he said.
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