Seven Reactions to Today’s Coats/Rogers Testimony

I watched the Coats/Rogers/Rosenstein/McCabe testimony before the Senate Intelligence Committee live today. Even though the testimony provided no direct answers, that’s exactly why it was so significant. The news is what did NOT happen.

  1. When asked directly and repeatedly about whether Trump asked them to influence the Comey investigation into Russia, they had clearly rehearsed a way to avoid answering the question. They said, “We have never felt pressure.” That’s not an answer to the question, and deliberately so. They could have answered, “No, the President never asked.” Instead, they answered a completely different question, and of course, their answer matches up nicely with presenting an image of their toughness, professionalism, and independence. It is most definitely not an answer to the Senators’ questions of what Trump asked or attempted to do. This morning’s non-denials were the biggest tell and a signal to watch for more.
  2. Asked repeatedly for a legal basis for refusing to answer, none of the four provided even a weak legal argument. They acknowledge that their refusal did not have a legal basis. None of the four asserted executive privilege, and the White House never gave them an answer about executive privilege, which is stunning. The President through White House counsel needs to authorize an executive official to claim executive privilege, and that clearly did not happen. Coats etc. said they never heard back from the White House one way or the other, which is amazing but not surprising. It’s chaos, and White House counsel McGahn is already up to his neck in legal trouble himself over Flynn.
  3. What if Trump and McGahn change their minds and invoke executive privilege? Thanks to Sens. Warner, Wyden, and King for repeating questions, Coats and Roges seemed to give enough answers to have waived executive privilege permanently (thanks particularly to Sen. Angus King!). The Democrats changed their questions enough to ask generally about Trump’s questions, and Coats answered just enough to open the door to a waiver argument. If they wanted a strong argument for executive privilege, it should have been granted/invoked at the beginning of the session today.
  4. Instead of invoking privilege, Coats and Rogers focused on “confidentiality” and even more on the “inappropriateness” of answering questions in an open session. There is no legal claim of confidentiality here that could supercede Congress’s duty and power to supervise and ask. The only legal argument relating to confidentiality would be the executive privilege claim that they explicitly refused to invoke. The bottom line for Coats was that it would be more appropriate to answer the questions in a closed session, and they seemed to agree to answer those questions in this afternoon’s closed Intelligence Committee session. We won’t know the answers directly, but from the tenor of today’s session, the Democrats and some Republicans (Sen. Burr in particular) will not tolerate stonewalling in the closed session after this morning’s answers. And in any event, Coats seemed to unwilling to dispute the Washington Post story in public, which means he is unwilling to be a good Trump foot soldier. Coats has a solid reputation, and I’m inferring that he is going to answer questions honestly, both this afternoon and when interviewed by Mueller.
  5. As for the half-hearted arguments, mostly from Rosenstein and McCabe, that they could not answer questions about Comey because of the Mueller inquiry, those arguments are not solidly supported by historical practice. Watergate and Iran Contra had simultaneous investigations by Congress and special prosecutors, and yet those witnesses did not refuse to answer Congressional questions with the excuse of a parallel criminal inquiry. Perhaps the proper compromise here is that the witnesses must answer Congress’s questions, but in closed session out of respect for the special counsel’s investigation. But the Senators showed that they are not going to tolerate less than that.
  6. Senator Burr, the chair of the committee, was remarkably tough on the witnesses and their lack of cooperation in his closing statement on the session. This is one of the best signs of the day. He told them he is not going to tolerate further stonewalling, and he embraced Congress’s role as an equal branch, a check on the executive, and their power to have their questions answered. I am very pleasantly surprised by Sen. Burr’s leadership today and over the past two months. He could be the surprise statesman. Unfortunately, his less balanced reaction to Sen. Harris — interrupting her when he allowed other Senators to interrupt witnesses — marred his day. It was a gray area of how much interrupting to tolerate, but Burr did not treat all interrupters equally today.
  7. Sen. McCain’s presence at the hearing was very unusual. He is not a member of the Intelligence Committee, and the story is that he asked to join. The speculation was that he had a purpose to be there, to push harder on the Trump/Russia story, and it would be a sign of Republicans on the committee being open to such a pushback against Trump by allowing McCain to be there for such a role.  McCain started strong, then seemed unfocused, and then attacked leaks more than asking tough questions. I’m still going to suggest that McCain didn’t totally whiff, but is playing an active but not pugnacious role. Perhaps he understood his role as a guest of the committee, and also read the signals of Coats (his old friend from their Senate days together) than Coats would be more comfortable in the closed session. Maybe I am being naive, but McCain’s presence is a signal that he is increasing an active role as a check on Trump, and a signal that the Republicans on the Intelligence Committee are open to him playing that role. This could get more and more interesting even before tomorrow’s Comey testimony if Coats reveals more in the closed session.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

2 thoughts on “Seven Reactions to Today’s Coats/Rogers Testimony”

  1. Senator McCain didn’t let his role as a guest of the committee keep him from interrupting Senator Harris to ask Senator Burr to chastise her for doing the same thing her male colleagues had been doing. (You point out that this was not a great moment for Burr, but didn’t note McCain’s participation.)

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