The most important takeaway from Jeff Sessions' testimony was what he refused to say - and legal experts say Congress should subpoena him for answers
The attorney general told the Senate Intelligence Committee 16 times in his blockbuster hearing that he couldn't "recall" a particular detail. That was in addition to eight instances in which he did not "know" the answer to a question posed by a member of the panel, five instances in which he did not "believe," four times he did not "think," and twice each that he did not "have" or "remember" what the senator in question was looking for.
So naturally, the most important takeaway from Sessions' hearing was not what he said, it's what he did not say.
On several occassions, Sessions refused to answer questions related to his private conversations with President Donald Trump, including conversations about FBI Director James Comey's firing, the possibility of presidential pardons for Trump associates, and whether Trump had expressed frustration with Sessions' early-March recusal from any investigations involving the Trump campaign. If these conversations did occur, they could be central to a possible obstruction-of-justice case.
Sessions' rationale for his refusal to detail such conversations was his "duty to protect confidential communications" he's had with the president and a "longstanding Department of Justice practice" not to disclose such information. During testimony last week, Director of National Intelligence Dan Coats and National Security Agency Director Mike Rogers gave similar explanations before the Senate Intelligence Committee.
Several senators zeroed in on that explanation - Democratic Sens. Martin Heinrich of New Mexico and Kamala Harris of California and Independent Sen. Angus King of Maine - in their lines of questioning, hammering the attorney general on the legitimacy of his rationale. The center of their argument was simple: the president had not invoked executive privilege, Sessions could not on his own invoke executive privilege, so how could Sessions not answer the questions?
"You're impeding this investigation," Heinrich said. "So my understanding of the legal standard is that you either answer the question. That's the best outcome. You say this is classified, can't answer it here. I'll answer it in closed session. That's bucket number two. Bucket number three is to say 'I'm invoking executive privilege.' There is no appropriateness bucket. It is not a legal standard."
Sessions said it would be inappropriate to do so without giving Trump the chance to review whether he wanted to invoke executive privilege, a position that a number of legal experts told Business Insider would not pass muster if Congress really wanted to push the White House. And when pressed on the specifics of the Justice Department policy he was citing to sidestep some of the senators' questions, Sessions could not answer much at all.
"Can you tell me what are these long-standing DOJ rules that protect conversations made in the executive without invoking executive privilege?" Heinrich asked, later repeating the question a second time. "Can you share those policies with us? Are they written down at the Department of Justice?"
"I believe they are," Sessions responded.
Sessions could not, however, detail the particulars of the supposed DOJ policy he was referring to.
Harris asked about the long-standing policy, which Sessions said "goes beyond just the attorney general."
"Is that policy in writing somewhere?" Harris asked.
"I think so," Sessions repsonded.
Legal experts who spoke to Business Insider said Sessions has essentially invented a "brand new privilege" and, if the administration is able to have its officials continue to use this rationale during testimony, it would lead to a code of "executive silence."
"Sessions' rationale was completely lacking in any legal basis," Adam Winkler, a law professor at UCLA, told Business Insider in an email.
"There are privileges, such as executive privilege and the privilege against self-incrimination, but Sessions was clear that he was not invoking these well established rights," he continued. "Instead, he was asserting some brand new privilege of his own invention, with no legal support whatsoever. The question is when will Republicans in Congress stand up to the president and stop this lawlessness."
Robert Chesney, a University of Texas law professor and a co-founder of the Lawfare blog, said he was unsure of what Sessions "has in mind" with his explanation.
"Barring a claim of executive privilege, it's unclear how any mere departmental policy position would cut any ice when Congress seeks testimony from an executive branch official," he told Business Insider in an email.
Congress' options in this matter are simple, experts said.
Congress can subpoena Sessions to answer the questions members laid out. That would essentially force the White House's hand to either invoke executive privilege, and possibly go to court over whether the invocation was proper, or decide against invoking privilege, in which case Sessions could be held in contempt of Congress if he chose not to answer.
Democrats such as Sen. Ron Wyden of Oregon and Rep. Adam Schiff of California have already started homing in on that strategy following the testimony.
Republican Sen. Richard Burr, chairman of the Senate Intelligence Committee, concluded the hearing by asking Sessions if he could "go back and work with the White House" to see if he can provide answers to any questions to the committee in writing "if there are any areas of questions that they feel comfortable with you answering," which is far from signaling the potential for a subpoena.
As Alan Dershowitz, the renowned attorney and professor emeritus at Harvard Law School, told Business Insider in an email, Congress "can compel" Sessions to answer the questions and override any Justice Department policy, so long as privilege has not been invoked. He added that Trump would have to invoke executive privilege if Congress were to subpoena Sessions for the questions.
But Jed Shugerman, a law professor at Fordham University, said he believes "it's too late" for Trump to invoke executive privilege, adding that he would argue Trump has already waived his right to invoke.
"Because President Trump was on notice for all of these questions when Comey appeared," he told Business Insider. "President Trump failed to invoke the privilege in time for Comey. I could make arguments that he waived it anyway. The fact is that President Trump was on ample and obvious notice for all of these questions Sessions was asked. And by failing to invoke it before 2:30 p.m., he has permanently waived his privilege on these questions. So you can't go back, you can unring the bell."
"The rationale that it could be invoked at any time, it can be invoked unilaterally by the official without the president" is an improper reading of executive privilege doctrine, he said, adding that Sessions was "incoherent" and had "no arguments" to defend his refusal to answer.
"He had ample time to prepare for this, and he was incoherent, and he did not give competent answers to the legal questions that everyone knew he would have," Shugerman said.
Citing the exchanges with King, Harris, and Heinrich, Shugerman said Sessions had "exposed" himself by failing to give "effective answers" to explain his position.
"What's really was stunning was it's obvious that this question was going to be one of the central questions of today's hearings," he said. "And so for the attorney general to appear and talk about DOJ policy in this completely ambiguous way, completely opened himself up to Kamala Harris' excellent questions."
"The idea that executive privilege exists out there in a floating way to be invoked at some point in the future, it makes executive silence become the policy," he added. "Because at some point in the next three and a half years, Trump might decide to invoke it, thus any executive official can just decide on their own to refuse to answer questions would turn the privilege into a permanent executive code of silence because it could be invoked one day. That is baseless. And absurd."
Shugerman said that, in addition to issuing a written subpoena, the committee can invite Sessions to provide the answers in a closed session. The professor added that other committees - such as the Senate Judiciary Committee - can subpoena Sessions to give answers to the same questions.
And on top of all that, there is special counsel Robert Mueller's investigation. The former FBI director is likely to ask Sessions similar questions under oath in the course of the probe. That probe is now likely looking into possible obstruction of justice on Trump's part, as Comey's testimony from a week earlier alluded to.
"So, anyone who thinks Sessions survived and it is over, that misunderstands how many other steps" there are, Shugerman said. "The non-answers are problematic."
Other experts said that Sessions was "behaving in a way that is consistent" with the way the executive branch has traditionally viewed executive privilege, noting that there is a longstanding dispute between Congress and the executive branch on executive privilege doctrine. Because Trump had not invoked privilege ahead of time, officials like Sessions, Coats, and Rogers enter these hearings "with a really bad hand," Andrew Wright, former associate counsel to President Barack Obama and Vice President Al Gore, told Business Insider.
Wright, now a professor at Savannah Law School, said that President Ronald Reagan's mid-1980s memo lays out some of what Sessions was arguing before the committee. In a "traditional fight," Wright said Congress would then subpoena Sessions for the answers.
"We're at the white hot public intensity moment, but none of the other steps have been taken, right?" Wright said. "Sessions came in on a volunteer basis, he hasn't been threatened with contempt. But make no mistake about it, every other dispute in the past, Congress has been saying you've committed a crime the whole time" by not answering.
Wright, who's been on the other side of the aisle in instances such as the Operation Fast and Furious ordeal and former Attorney General Eric Holder being subpoenaed by Congress for documents related to it, said Congress "needs to enforce its prerogatives here."
"If Congress wants this information, by all means, criticize away about the executive branch not having its act together," he said. "But you've got to subpoena this information, and you've got to threaten contempt if you don't get it. Because otherwise, you're going to let the executive branch away without giving a legitimate legal position and allowing these witnesses to just have to suffer through awkwardness but not actually come to grounds."
But former assistant US Attorney and CNN senior legal analyst Jeffrey Toobin doubts that the Republicans will see any benefit in issuing those subpoenas.
"You won't have these members going to court to get these administration officials to testify on these conversations with the president," he said on CNN Tuesday night. "I think that's the end of the matter."