Sort of, Kind of, Maybe Executive Privilege?

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THE COHEN COLUMN-I was listening to the Senate hearing last week where Director of National Intelligence Dan Coats and NSA Director Mike Rogers both refused to admit that Donald Trump had requested they intervene to stop the FBI's Russian collusion investigation.

 

The heads of the departments said that in their careers, they were never pressured to do anything unethical, illegal etc. But there is a difference between being asked to do something and being pressured into doing it, as former FBI Director James Comey explained on the following Thursday. 

Further, they would not answer the direct question: Were they asked by Trump to back off or otherwise go easy on the Russian/Michael Flynn investigation? They did say that they have to confer with the Administration to find out if they are going to invoke executive privilege regarding their testimony. Not that Trump has, but that he might! 

When asked some general questions, one may call them hypothetical, the department heads said they would not speculate on hypothetical questions, but they were willing to refuse to answer some direct questions because they thought is possible (here we speculate) that Trump may invoke privilege later. Isn’t that speculation a hypothetical? Of course it is. 

Who do the Trump administration and its department heads represent? Sen. John McCain called the performance Orwellian. Then suddenly it hit me, watching Trump’s men:
Hey, wait a minute -- these guys are themselves invoking executive privilege.

Hey, but wait another second, the White House had expressly and publicly declared that they would not be invoking executive privilege with specific reference to the upcoming testimony (at that time) of James Comey, so what's going on with these guys?

Independent Senator Angus King (I-ME) drilled right down on this very question in a way that had us reflexively gobbling popcorn and jujubes.

Meanwhile, back at the hearing it was plain to us that Trump’s men, Coats and Rogers, were behaving in contempt of the committee. They both said they basically did not feel like answering, without any particular legal basis for not doing so. And Senator Angus King got plainly to the heart of the matter.

King: "What you feel isn't the answer. The question: is why are you not answering the question?  Is it an invocation of executive privilege? If there is, let's know about it. If there isn't let's answer the question.

Rogers: "I'll stand by the comments I've made [that he doesn’t feel it is right to answer]. I'm not interested in repeating myself, sir. And I don't mean that in a contentious way."

King: "Well, I do mean it in a contentious way."

Wow, a star is born anew in Maine! Where did all the popcorn go so fast? Shades of Sam Ervin and the Ervin Committee more popularly known as Watergate Committee which was established to investigate Watergate, Ervin was a major figure in Nixon's downfall. That investigation will now be seen in historical context as a much smaller constitutional scandal than Trump has served up.

What is most significant is that despite both having used the crutch excuse that they were hesitant to make public statements, and without justification that their conversations with Trump were classified, neither Coats nor Rogers would commit to answering these questions in a classified session.

It was only in response to Angus King's grilling that both haltingly stuttered that before the classified session they would have to consult with White House counsel about whether they were themselves invoking executive privilege.

Ahhh…huh?

Not only had the White House already repudiated the idea of invoking executive privilege, not only would neither confirm that they were invoking it on the spot at the open hearing, but they were still holding out the possibility that the White House might ad hoc make that invocation in the few minutes between the end of the public hearing and the beginning of the classified one.

This was a stealth invocation of executive privilege. Both these men came before the committee in defiant and contemptuous bad faith, never intending to cooperate at all. And Senator Warner seemed to suggest, when interviewed later in the day, that they both refused to answer these questions even in a classified session.

The reason the White House did not feel the need to publicly invoke executive privilege specifically as to them is because they believed that the slavish partisans Coats and Rogers could be counted on to essentially do that for them, without having the dirty hand prints of the White House on it.

And that's what happened.

Just so we're clear, both these men told lots of other people what Trump had demanded of them, to undercut the FBI investigation, which became the source of many press reports confirming these criminal attempts to obstruct justice. Yet they would not say the same thing out of their own mouths to the American people at large.

By the time most of you read this, the Comey testimony will have already gone down.

But later on we will have some very special insights already in mind that we suspect no other political commentator will pick up on.

Donald Trump Jr. appears to have contradicted his father’s claim saying that Trump, Sr. never told Comey he hoped FBI director would end the Flynn probe. 

“I think it’s clear that everything that went on in the Comey testimony was basically ridiculous,” Trump Jr. told Fox News’ Jeanine Pirro on Saturday night. “You and I both know my father a long time. When he tells you to do something, guess what, there’s no ambiguity in it. There’s no, ‘Hey, I’m hoping.’ You and I are friends, ‘Hey, hope this happens but you get to do your job.’ That’s what he told Comey.”

In a statement, Trump’s lawyer Marc Kasowitz said his client “never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone.”

Of course Kasowitz also said (a lie) that Comey released his memo before the NY Times published the story of Trump calling Comey and the FBI bad. Not true. The NYT story came out first.

 

(Michael N. Cohen is a former board member of the Reseda Neighborhood Council, founding member of the LADWP Neighborhood Council Oversight Committee, founding member of LA Clean Sweep and occasional contributor to CityWatch.) Edited for CityWatch by Linda Abrams.

-cw

 

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