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."
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..."
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."