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Sollenberger and Rozell: No Executive Privilege for Obama’s BlackBerry

Does modern technology create new constitutional protections for presidential secrecy? The country’s first BlackBerry-using president is denhaying Congress access to communications on his mobile device — a unique claim of privilege that was bound to happen eventually.

On the heels of President Barack Obama’s refusal to release certain documents relating to Operation Fast and Furious, White House Counsel Kathryn Ruemmler has issued a letter to the House Energy and Commerce Committee denying access to the president’s BlackBerry messages relating to the Energy Department’s loan to Solyndra.

It is safe to assume that the president is using a BlackBerry to communicate with his close advisers and other government officials throughout the executive branch. Such communications, though afforded protection under appropriate circumstances, may be critical to a Congressional investigation of possible executive branch wrongdoing.

Yet Ruemmler maintains that “long-standing and significant institutional Executive Branch confidentiality interests” shield all communications made via Obama’s BlackBerry. She also argues that Congress does not have to encroach “upon these important interests” as “the agency documents the Committee has requested, which include communications with the White House, should satisfy the Committee’s stated objective — to ‘understand the involvement of the White House in the review of the Solyndra loan guarantee and the Administration’s support of this guarantee.’”

Ruemmler’s position is a vast overreach of the president’s right to confidentiality. The chief executive does not possess this type of an absolute protection from producing documents or other evidence under a general rubric of executive privilege. Even though no president before him has used a BlackBerry while serving, the sui generis of this situation does not create a new, or even greater, protective privilege than already exists.

Simply put, new technology does not change the basic norms that govern executive privilege. The House Energy and Commerce Committee is seeking information to carry out its oversight functions. Obama cannot deny Congress access to information on the Solyndra loans just because he used a BlackBerry instead of writing his correspondence on paper.

Ruemmler also implies Congress should be satisfied with the documents disclosed so far, which amount to thousands of files. Past administrations have made a similar argument during their stonewalling efforts against Congress. It is a common executive branch tack: Count the number of pages released to Congress, even if most or all are not germane to the legislative investigation, and then claim to have fully cooperated with the legislative branch.

The fact is, the president does not win or get to say he’s being cooperative with Congress by simply handing over boxes and boxes of documents but withholding the most important or relevant papers. Legislators did not accept the same argument when the George W. Bush White House made it, and they should not do so here.

The last time a president tried to convince lawmakers that they should be satisfied with the large quantity of documents released and some limited testimony, a Democratic House decided to issue a contempt citation against Bush White House officials and bring a suit in federal court.

Obama is going down a path of secrecy that is making his promises of transparency and openness hollow. The constitutional question in this case — Congressional access to a president’s BlackBerry — is new, but it is one that will arise again. The outcome concerns the institutional powers of both the presidency and Congress, along with basic notions of democratic accountability and transparency.

Allowing the president to wall off communications because they happen to have been produced on a handheld electronic device creates a terrible precedent. The future will bring new means of communications that we cannot even imagine today. How many different means of technology will presidents then possess to conceal information from Congress, and also from the media and ultimately the public?

Obama has not provided any reasonable argument that could be used to protect the class of presidential communications that he wants to conceal. Without a showing of a demonstrable need for secrecy, the oversight interest of Congress wins out over any executive confidentiality claims, no matter the means of communication.

Mitchel A. Sollenberger is an assistant professor of political science at University of Michigan-Dearborn. Mark J. Rozell is a professor of public policy at George Mason University. They are the authors of the forthcoming book “The President’s Czars: Undermining Congress and the Constitution.”

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