What is the expectation that the US intelligence community must answer questions posed in congressional hearings?

Question

Question: What is the expectation that the US intelligence community must answer questions posed in congressional hearings? What leeway do the US intelligence community leaders have to determine the appropriateness of the questions asked to them?

The US Senate Select Committee on Intelligence held a hearing today, June 6th 2017, on FISA legislation (LINK: Full hearing video recording). This hearing included testimony by the following witnesses:

Director Daniel R. Coats\ Director of National Intelligence (DNI)

Acting Director Andrew McCabe\ Director of the Federal Bureau of Investigation (FBI)

Admiral Michael S. Rogers\ Director of the National Security Agency (NSA)

Deputy Attorney General Rod J. Rosenstein\ Deputy Attorney General of the Department of Justice (DOJ)

Each witness at several points indicated that they would not or could not respond to direct questions posed by the congressional committee. Examples of this can be particularly seen in Senator Martin Heinrich's time (1:44:46 to 1:50:06) and Senator Angus King's time (1:55:30 to 2:01:55).

From Senator Martin Heinrich's questioning segment:

Senator Heinrich: "Director McCabe, did Director Comey ever share details of his conversations with the President, with you? In particular, did Director Comey say that the President had asked for his loyalty?"

Director McCabe: "Sir, I am not going to comment on conversations the director may have had with the President. I know he's here to testify in front of you tomorrow. You'll have an opportunity to ask him..."

Senator Heinrich: "I'm asking you, 'Did you have that conversation with Director Comey?'"

Director McCabe: "And I've responded that I am not going to comment on those conversations."

Senator Heinrich: "Why not?"

Director McCabe: "Because for two reasons. First, as I mentioned, I am not in a position to talk about conversations Director Comey may or may not have had with the President."

Senator Heinrich: "I'm not asking about that. I'm asking about conversations that you had with Director Comey."

Director McCabe: "And I think that those matters also begin to fall within the scope of issues being investigated by the special council, and wouldn't be appropriate for me to comment on those today."

Senator Heinrich: "So you are not invoking executive privilege and obviously it's not classified. This is the Oversight Committee, why would it not be appropriate for you to share that conversation with us?"

Director McCabe: "I think I'll let Director Comey speak for himself tomorrow, in front of this committee."

Senator Heinrich: "... I think your unwillingness to share that conversation is an issue."

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Senator Heinrich: "Director Coats, you've said as well that it would be inappropriate to answer a simple question about whether the President asked for your assistance in blunting the Russia Investigation. I don't care how you felt. I am not asking whether you felt pressure. I am simply asking, 'Did that conversation occur'?"

Director Coats: "And once again, Senator, I will say that I do believe it is inappropriate for me to discuss that in an open session."

Senator Heinrich: "You realize, and obviously this is not releasing any classified information, but you realize how simple it would simply be to say, 'No that never happened.' Why is it inappropriate, Director Coats?"

Director Coats: "...I do not share with the general public conversations that I have with the President or many of my administrative colleagues... that I believe should not be shared... It is not a matter of unwillingness. It's a matter of how I share and with whom I share it to. And when there are ongoing investigation, I feel it is inappropriate to be involved in that (italicized section is difficult to hear do to overlapping speakers)"

From Senator Angus King's questioning segment:

Senator King: "Why are you not answering these questions? Is there an invocation of executive privilege by the President of the United States? Is there or not?"

Admiral Rogers: "Not that I am aware of."

Senator King: "Then why are you not answering our questions?"

Admiral Rogers: "Because I feel that it is inappropriate, Senator."

Senator King: "What you feel isn't relevant, Admiral..."

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Senator King: "I am not satisfied by, 'I do not believe it's appropriate' or 'I do not feel I should answer'. I want to understand a legal basis. You swore that oath to tell us the truth, the whole truth, and nothing but the truth. And today you are refusing to do so. What is the legal basis for your refusal to testify to this committee?"

Director Coats: "I'm not sure I have a legal basis..."

Director Coats and Admiral Rogers both refer to issues regarding the setting of this discussion and possible involvement classified information as reason why they are not able to answer. But this seems like broad authority to not answer a question, without legitimate privilege.

Senator King explicitly closes his questioning period by stating, "It is my belief that you are inappropriately refusing to answer these questions."

Answer 1

Basically, one has to answer all questions unless –

1. the witness exercise his right against self-incrimination under the Fifth Amendment
2. the information is classified
3. the President asserts his "executive privilege"
4. the question is outside the scope of the hearing
5. the question is asking for investigative information in a criminal case
6. it violates common law, such as: "a husband or wife cannot be forced to testify against their spouse; an attorney cannot be forced to disclose certain matters about their client, and so forth"

^{Source: https://medium.com/@senwhitehouse/why-did-intelligence-chiefs-refuse-to-answer-so-many-questions-in-wednesdays-senate-hearing-99f1ac824fd1}

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Also, according to this CRS report, witnesses only have rights and protections under the Constitution.

Witness Rights

No witness may refuse to testify on the grounds that such testimony “may tend to disgrace him or otherwise render him infamous” (2 U.S.C. 193). Witnesses at Senate hearings receive protections mainly through their rights under the Constitution, and rules adopted by individual committees. Constitutional protections include the First, Fourth, and Fifth Amendments. While committees may seek documents from witnesses, the Fourth Amendment prohibits unreasonable search and seizure to obtain information. The First Amendment protects witnesses who may seek to refuse compliance with a committee subpoena by claiming that the committee has infringed on the witness’s right to free speech, assembly, or petition. Under the Fifth Amendment protection against self-incrimination, witnesses cannot be compelled to give evidence against themselves unless granted immunity.

(emphasis mine)

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So, theoretically, they should answer all the questions posed by the Senators.

However, during Attorney-General Jeff Session's public testimony before Senate Intelligence Committee hearing (the one that's held one week after the intelligence community's testimony), he also refused to answer questions about his conversations with President Trump, citing either the Justice Department's "longstanding policy" of not commenting on conversations involving the President or protecting the right of the President to assert executive privilege if he chooses.

Politifact then asked the Justice Department for the "longstanding policy" and managed to get two memos from 1982 (Reagan administration) [one, two] and one from 2009 (Obama administration).

Within the 1982 memo, it indeed states that:

Pending a final Presidential decision on the matter, the Department Head shall request the Congressional body to hold its request for the information in abeyance. The Department Head shall expressly indicate that the purpose of this request is to protect the privilege pending a Presidential decision, and that the request itself does not constitute a claim of privilege.

And Politifact further commented that what Sessions said is not exactly what the memos stated, but it is partially accurate and quite "longstanding".

But that’s not exactly what the memos say. They acknowledge that the executive branch has an expectation that its communications remain confidential, so they guide the attorney general to consult with the White House counsel about congressional information requests involving White House communications. Then, the president can decide whether to invoke executive privilege to keep those communications confidential if necessary.

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The US intelligence community's reasoning for their refusal to answer questions posed's somewhat similar to Session's reasoning as they both mention that they are protecting the right of the President to assert executive privilege.

The attorney general is not the first administration official to struggle with how to answer sensitive questions about talks with Trump. Senators berated Director of National Intelligence Dan Coats and National Security Agency Director Michael Rogers last week when they deflected questions about whether the president had asked them to intervene to block the Justice Department’s ongoing investigation into possible collusion between the Trump campaign team and Russian government officials. Rogers told lawmakers that he had asked the White House in advance if it was asserting executive privilege, but never received a response. That left him stumbling to avoid answering questions that could be embarrassing for the White House without any clear legal authority to do so.

(emphasis mine)

^{Source: http://www.huffingtonpost.com/entry/jeff-sessions-executive-privilege-trump_us_59404779e4b09ad4fbe3ceeb}

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Further reading:

• CNN – Why Jeff Sessions says he can't talk
• NYT – Explaining Executive Privilege and Sessions’s Refusal to Answer Questions
• Politifact – Jeff Sessions cites 'longstanding policy' to deflect senators' questions in Russia hearing
• The Huffington Post – Jeff Sessions And The Trump Team Really Don’t Want To Say ‘Executive Privilege’

And here are some opinions from 10 law professors, though most of them mainly argue that the President hasn't officially asserted executive privilege so they should be able to be able to answer all the questions.

Answer 2

Of primary relevance to your question is the fact that the persons giving testimony were doing so without having been served with a subpoena to testify.

Voluntary testimony is, well, voluntary and not subject to the Congressional recourse of Contempt of Congress proceedings.

The type of (voluntary) testimonial proceeding you reference might be considered an informal "question and answer" process similar to the type of questions and setting one might be subject, during a criminal investigation; by a police officer, as a witness to a crime, prior to being deposed as a precursor to trial.

At such a point, one may tend to "lawyer-up" if there's any chance their testimony could be self-incriminating and, in effect, one would refuse to answer unless compelled by a court ordered subpoena.