Advocates of open government delight at the changes occurring in Washington. Several early decisions by the Obama administration suggest that the days of the obsessive executive branch secrecy of the Bush era are over.
Not so fast. To be sure, the White House scored a big victory for open government when, on his second day in office, President Barack Obama signed an executive order overturning a Bush policy that had vastly expanded the power of executive privilege for current and even former presidents. Although that was a good start for more openness, some Bush era controversies still hang over the political landscape and create special challenges for the new administration.
To take one important example, House Judiciary Chairman John Conyers (D-Mich.) recently subpoenaed former Bush White House Deputy Chief of Staff Karl Rove to testify in the controversy over the firing of U.S. attorneys. Following the lead of the former president, Rove invoked executive privilege the legal principle that a president or presidential adviser may refuse to testify or provide White House documents to Congress and the courts, if the public interest is at stake.
Imagine the dilemma this scenario creates for the Obama White House. The new president assumed the constitutional powers of the executive at noon on Jan. 20. And here we have a former presidential aide, at the determination of private citizen George W. Bush asserting executive privilege, something normally thought to be a constitutional-based power of the incumbent president. The new president, with plenty of trouble to fill his agenda already, now has to decide whether and how he involves himself in this latest Bush era dust-up, and his decision could have important consequences for his own future exercise of a presidential power that every president since George Washington has relied upon at some point.
Indeed, Obamas decision will have a significant impact not only on his administration, but will create a precedent for future presidents as well. How much protection will Obama claim under what is an implied Article II presidential power? Bush thought Article II grants to former White House staffers an absolute immunity from Congressional testimony. Does Obama believe this as well?
Certainly there is a responsibility to ensure that a proper give and take remains between the White House and Congress in policymaking, oversight and other interbranch matters. However, there is also a need to ensure a president and his staff have some degree of protection from public disclosure of their internal deliberations. Clearly Obama will be walking a fine line with many legal and political pitfalls.
In order to resolve this question, Obama must determine how involved his administration will be in a matter that largely remains a conflict between Congress and former Bush White House staffers. Will he make an official statement? Will his White House or Justice Department issue a memorandum? Or will the administration remain silent?
There is very little possibility his administration can sit this controversy out. Instead, Obama needs to act carefully and explain what his official position will be on executive privilege and an absolute immunity claim. To begin, Obama needs to distance himself from the hard-line legal position of the Bush administration. He should declare that there is no absolute immunity for presidents or their staff. Such a claim has no basis in law or fact. Next, Obama needs to concede that no current or former White House staffers can refuse to appear before Congress. If an executive privilege claim is to be made, it must be done on a question-by-question basis in front of a committee of Congress. In addition, Obama may recognize a limited right of executive privilege that former presidents and their staff can use subject to very high threshold standards of review by Congress and the sitting president. This point should be made clear and be reinforced with the understanding that Congress remains the primary decider of former presidents executive privilege claims. Finally, Obama should order Rove to testify before the House committee and that his administration will cooperate with Congress to ensure that full and proper oversight of the Justice Department occurs.
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