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Taking Executive Privilege to Absurd Levels?

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 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 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 — through which a president or presidential adviser may refuse to testify or provide 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. 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 use of a power that every president since George Washington has relied upon.

Obama’s decision will have a significant impact not only on his administration, but it also will create a precedent for future presidents. How much protection will Obama claim under what is an implied Article II presidential power? Does Obama agree with Bush’s belief that Article II grants to former White House staffers absolute immunity from Congressional testimony?

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.

Obama must determine how involved his administration will be in a matter that largely remains a conflict between Congress and Bush 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, he needs to distance himself from Bush’s hard-line legal position. He should declare there is no absolute immunity for presidents or their staff. Next, Obama needs to concede that no current or former 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, he may recognize a limited right of executive privilege that former presidents and their staff can use subject to very high threshold 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 president’s 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.

Obama’s position will do much to signal to Congress and the public his views on executive power and the manner he intends to work with the legislative branch. An official position and shift by the administration will do much to ensure that judicial line drawing does not occur. The last thing Congress or the president needs is the judiciary to mediate another interbranch dispute. Not only will such action ensure that the legislative and executive branches decide for themselves how far executive privilege extends, but it will also guarantee that Rove and others must testify before Congress. Certainly, there will be pressure on Obama to remain resolute and not cede any power Bush seemingly won over the past eight years. This would be foolish. Instead Obama should continue taking the necessary steps to be more accommodating with Congress and promote the openness that he declared during his campaign.

Mark Rozell is a professor of public policy at George Mason University. Mitchel Sollenberger is an assistant professor of political science at the University of Michigan-Dearborn.

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