Obama Should Swear Off Executive Privilege

Keeping his staff transparent and accountable would send a strong message about open government.

Radley Balko | November 14, 2008

President-elect Barack Obama has been fairly critical of the Bush administration's secrecy, lack of accountability, and executive power grabs over the last eight years. And rightly so. To his credit, Obama has made some early gestures to rolling back some of the power claimed by President Bush and Vice President Cheney.

One way Obama could send a clear message about the type of service he'll expect from the people who will staff his administration is to make an early vow forbidding any of his staff from claiming executive privilege should they later be asked to testify before Congress, in a deposition, or in any other legal setting. The one obvious exception would be if someone were asked to testify about matters classified for national security purposes.

Executive privilege is the idea that a president should be able to shield his staff from congressional or legal inquiries because staffers who know they could potentially be subpoenaed may not feel as free and open to give the president candid advice. This is nonsense.

The president's political appointees are public servants. Their salaries are paid by taxpayers. What they do and say on the public payroll should be accessible to the public, to the courts, and to congressional oversight. If a presidential aide fears that advice he gives the president could subject him to legal action or congressional subpoena down the road, he shouldn't give advice that's of questionable legality or that's ethically dubious in the first place. It really is that simple. If the president wants to hire a personal attorney who can give him personal legal advice that's protected by attorney-client privilege, that's fine. He should pay that attorney out of his own pocket, or out of campaign funds.

The phrase "executive privilege" doesn't actually appear anywhere in the Constitution. Rather, it has been inferred by presidents from the Constitution's provisions dividing power among the three branches of the federal government. Though variations on executive privilege were claimed in limited circumstances by several presidents before him, including Thomas Jefferson and Harry Truman, the term itself was first coined by President Dwight Eisenhower in 1954 during the Army-McCarthy hearings. Eisenhower went on to invoke the privilege dozens of times over the next six years.

The Supreme Court has been inconsistent on the matter. During Aaron Burr's trial for treason in 1807, President Jefferson argued something similar to executive privilege in attempting to prevent Burr from subpoenaing Jefferson's private letters about Burr. The Supreme Court found that the president is not exempt from the discovery process in a criminal trial, and ordered Jefferson to turn over the letters. He complied.

In the 1974 case U.S. v. Nixon, the Court upheld the general notion that presidential aids should be granted some room to speak candidly without fear of subpoena, but the Court also thoroughly rejected Nixon's claim of "absolute privilege." The ruling—that there's some privilege, but not absolute privilege—left a lot of gray area. Subsequent presidents Ronald Reagan, Jimmy Carter, and George H.W. Bush periodically invoked executive privilege, but it was the Bill Clinton and George W. Bush administrations that really abused the idea.

Bill Clinton invoked executive privilege to keep the health care task forces held by his wife Hillary Clinton shielded from federal open meetings laws. He would again invoke the doctrine to stymie investigations into Hillary Clinton's firing of White House Travel Office employees, and then again to prevent his aides from testifying in the Monica Lewinsky case (he lost that particular fight in court).

George W. Bush moved early to shore up executive privilege, blocking efforts to investigate his predecessor Clinton's role in the fundraising scandal involving campaign contributions from non-U.S. citizens. He also blocked investigations into Clinton Attorney General Janet Reno. Bush's non-partisan deference to presidential power reaped benefits, as he'd go on to invoke executive privilege to thwart attempts by Congress to look into his own administration's scandals, including the U.S. attorney firings, years of missing White House emails, and the cover-up of the friendly fire death of U.S. Army Ranger and former NFL star Pat Tillman.

What we see, over and over, is that the executive privilege doctrine is most often invoked to prevent congressional committees, independent counsel, and other oversight bodies from investigating possible legal and ethical breaches by members of the executive branch. It's not being used to promote candor and open dialogue among presidential advisers, but to prevent the public from learning about possible abuses of power by members of the administration, and from holding those members accountable.

If Obama were to peremptorily swear off executive privilege early on in his administration, and vow that his staff and advisers will not have his permission to invoke it at a later date, it would not only send a clear and important message to the country that he plans to keep his vow to run a transparent and accountable government, it would also send a message to everyone working in his administration that what they say and do will be on the record, and that they should behave accordingly.

Radley Balko is a senior editor at reason.

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|11.14.08 @ 3:21PM|#

Why Obama Should Swear Off Executive Privilege

Ain't
...
Gonna
...
Happen.

Woah, the wishful thinking's pretty thick in here, isn't it?

The democrats have never had any interest in reducing the power of the presidency or making it more transparent. They'll bitch about how the republicans abuse power, but scale it back? Not a chance.

-jcr

|11.14.08 @ 3:22PM|#

No way, no how.

|11.14.08 @ 3:28PM|#

I think that Obama should support cutting taxes on the top bracket and raising them on the lower brackets (up from nothing on the very lowest and up a tick or two on the others).

I could write a long essay about why this would be good for the country... but getting paid to do it is the only way I'd see it as a good use of my time.

egosumabbas|11.14.08 @ 3:29PM|#

Mr. Balko. You are my favorite writer at reason. You fight the good fight, despite the fact that my faith in humanity decreases whenever I read your articles. Your ability to root out corruption is amazing.

That being said, while the arguments being made here about what Barry-O *should* do are moral and rational, he will likely do the opposite of what you suggest. He may make a few token attempts at transparency, but ultimately expand the powers of the presidency.

In any event, I appreciate the effort and godspeed.

Mad Max|11.14.08 @ 3:29PM|#

"But if he's really serious about it, writes Senior Editor Radley Balko, he should make an early vow forbidding his staff from claiming executive privilege."

While you're at it, why not ask President-Elect Obama to preserve, protect and defend the Constitution of the United States? Or give every American a free pony? You know, something more realistic?

|11.14.08 @ 3:34PM|#

I see I'm not the only cynic here.
;-)

|11.14.08 @ 3:35PM|#

In other opinions:

Edward Longshanks should swear off jus primae noctis.

Superman should swear off X-ray vision.

And LoneWacko should swear off ImproperFormatting.

|11.14.08 @ 3:37PM|#

Wasn't "Barry O" an 80s vintage pro wrestler? I think he used to lose every week.

|11.14.08 @ 3:42PM|#

While you're at it, why not ask President-Elect Obama to preserve, protect and defend the Constitution of the United States?

Yeah, make him put his hand on the Bible and swear to it! No one would ever violate that kind of solemn vow.

|11.14.08 @ 3:44PM|#

Warren, we're saved! Thank God the Founders saw to it that each president would have to swear unbreakable Kryptonian vow before taking office.

Gilbert Martin|11.14.08 @ 3:47PM|#

"Why Obama Should Swear Off Executive Privilege"

Obama thinks he's the second coming of FDR.

He's not going to swear off anything.

egosumabbas|11.14.08 @ 3:51PM|#

Holy crap PM770, Barry O is more than just a cheeky alias for Obama. I had never even heard of him.

Radley Balko|11.14.08 @ 3:51PM|#

I didn't really expect him to take me up on it. Just thought I'd throw out a real-world way he might live up to his campaign promises.

Plus, I'd like to hear Obama supporters explain why he shouldn't disavow executive privilege.

|11.14.08 @ 3:52PM|#

As Mr. Hope-and-Change sows, so shall he reap. You traffic in sky-high expectations to get elected, you should meet sky-high expectations or explain why not.

And thank goodness we have Radley Balko on the Obama accountability beat.

|11.14.08 @ 3:56PM|#

Radley,

Incidentally, I'm mocking Obama, not you. I hope he turns out not so bad, too, but I don't believe there's much chance of that happening.

|11.14.08 @ 3:58PM|#

I didn't really expect him to take me up on it.

We're with you. And no worries; if the thread deteriorates to personal insults, there are dozens of us here who would shank someone in the shower for you.

Joel|11.14.08 @ 4:04PM|#

The one obvious exception would be if someone were asked to testify about matters classified for national security purposes.

Of course it isn't as though the "national security" mantra hasn't been routinely abused to hide embarrassments, too.

Oh, and I'm also firmly in the "ain't gonna happen" camp, though it would be entertaining to see the vow made and keep score of how long till it's broken.

While you're at it, why not ask President-Elect Obama to preserve, protect and defend the Constitution of the United States?

Oh, now we're really flyin' out in the ozone. What politician would ever do that?

|11.14.08 @ 4:08PM|#

Wait a second. I'm at the National Archives and have flipped over the Constitution. Turns out there's another Article, which states that everything else is trumped by national security. Looks like all those presidents were right! Sorry about that.

Joel|11.14.08 @ 4:12PM|#

Wow! Have you told Nicolas Cage? There's a sequel idea in there somewhere, I'm sure of it.

|11.14.08 @ 4:13PM|#

Obama oppo should be easy-peasy the next four years.

(1) Quote one of his speeches.
(2) Point out something that he just did.
(3) Draw your own conclusions about whether Hope 'n' Change was having you on to get elected.

Gilbert Martin|11.14.08 @ 4:15PM|#

"Wait a second. I'm at the National Archives and have flipped over the Constitution. Turns out there's another Article, which states that everything else is trumped by national security."

Is that above or below the one that states healthcare is a right?

|11.14.08 @ 4:18PM|#

Radley: Good article. EP does have its place, but has been cheapened by overuse ever since Nixon. I'd say any noticeable increase in transparency is an improvement.

JCR: Dude, just because it's always been so, doesn't mean it always will be so. Suspect there's a logical fallacy in there, somewhere.

All: While I realize that cynicism insulates against disappointment, but could you at least give our next President the benefit of the doubt until he's frickin' takes office?

Phelps|11.14.08 @ 4:22PM|#

I'm going to break with tradition and say that I think that BHO might take that pledge.

Like all of his pledges, it wouldn't survive the first instance of one of his people needing to assert that privilege to get out of trouble, but he wouldn't have any problem pledging it.

|11.14.08 @ 4:23PM|#

Gilbert,

That's on the back of the Bill of Rights. Strange, you'd think that someone would've thought to flip these things over.

[What a stupid fucking movie.]

Tonio,

No. The correct view is a presumption against the goodwill of those in power. In fact, our whole system of government is--no, that's not right--was based on that presumption. Let him prove himself, and I'll retract my objections. But I'm confident that I'll be issuing no retractions. The Voracity of Hope, you know.

mnuez|11.14.08 @ 4:24PM|#

Crazy talk. Obama is an ugly little politician like the rest of them. "Slightly better than the alternative" is all I ever asked for and all I'm going to expect.

mnuez

|11.14.08 @ 4:25PM|#

...could you at least give our next President the benefit of the doubt until he's frickin' takes office?

The One didn't just appear in Capitol Hill's cabbage patch. He's already given me every reason to call him full of shit. Once he proves he's changed, I'll begin to hope for change in the bigger sense.

|11.14.08 @ 4:27PM|#

FrBunny,

Do you have the audacity to hope that Hope and Change will change?

|11.14.08 @ 4:32PM|#

Pro Lib,

I guess I'm a maverick that way. I credit the faith of -- and dreams from -- my father.

|11.14.08 @ 4:33PM|#

All: While I realize that cynicism insulates against disappointment, but could you at least give our next President the benefit of the doubt until he's frickin' takes office?

Hey, I seriously considered voting for the guy. I also recognize reality. Yeah I'm a cynic, from Missouri, however you want to put it.

Barrack Obama, prove me wrong. I'm honest enough to admit when I am.

db|11.14.08 @ 4:35PM|#

Do you have the audacity to hope that Hope and Change will change?

I'm sorry sir, you have exceeded your audacity ration for the day. In order to ensure proper supplies of audacity for our Leadership, you must curtail excess audacity use at all times. That is all.

|11.14.08 @ 4:37PM|#

"The Voracity of Hope, you know."

Good one, PL.

|11.14.08 @ 4:40PM|#

I'm with Tonio. You guys would never admit to being wrong in your cynicism even if the proof was magically burned onto Ayn Rand's tombstone. Have a nice two terms ...

BDB|11.14.08 @ 4:42PM|#

I will make a prediction:

Obama will go back to the regular level of Executive power abuse we had prior to 2001, rather than the clownishly criminal abuse of power of the last eight years.

Hey, that's something.

db|11.14.08 @ 4:44PM|#

Further, to offset the limited rations of Audacity available to Citizens, We are issuing unlimited quantities of Hope for immediate use.

|11.14.08 @ 4:44PM|#

Mr. Butler,

I voted for Bush. I was wrong about him. Dead wrong. Tried-to-invent-time-travel wrong.

Why such confidence in the stubbornness of strangers?

|11.14.08 @ 4:45PM|#

""""You traffic in sky-high expectations to get elected, you should meet sky-high expectations or explain why not.""""

Maybe in a honest world. But I'd still be waiting for Bush to explain why he didn't limit government and failed to uphold gun rights to the point the VP had to file his own brief in support of Heller.

Come on we all know these guys will tell us anything to get elected. We'll see if Obama proves us wrong. My money is also on no.

Someone honest would come out and say I don't have the power to change things but I will work with Congress to make these changes. That's the honest statement and it didn't work well for Ron Paul. The people want superman, someone who can fix all the problems. They don't want the honest guy that understand how our government really works.

"""No. The correct view is a presumption against the goodwill of those in power."""

I'd say that's an educated view.

DannyK|11.14.08 @ 4:47PM|#

Radley, I'm a Obama fan and even I think you're smoking rope.

Look at the list of examples you provide: the one time Clinton didn't get to use Executive Privilege, it nearly blew up his presidency. If Obama just returns to a normal, non-crazy use of the privilege, I'll be happy.

|11.14.08 @ 4:48PM|#

Mr. FrBunny: Okay, maybe not you ... ;)

|11.14.08 @ 4:49PM|#

""""I voted for Bush. I was wrong about him. Dead wrong.""""

Same here. I knew better than to think a politician would keep his word. But for some reason I wanted to believe. I fully expect the Obama supporters that want to believe will be disappointed too.

|11.14.08 @ 5:04PM|#

Mr. Butler,

Much appreciated. BTW, the Fr in FrBunny is for "frau". As in the opposite of "herr". As in "keep the 'Mr.' to yourself". ;)

Hey, I've publicly given Obama a chance (click on the link for a very special Obama photo). Here's what I said:

Since Obama is all things to all people, I choose to view him now as the end-all, be-all libertarian candidate. As such, I urge him--he's a known fan of Urkobold--to review my Top 100 Things I'd Do if I Ever Became a Libertarian President.

Learn it. Love it. Be it.

Gilbert Martin|11.14.08 @ 5:16PM|#

"Gilbert,

That's on the back of the Bill of Rights. Strange, you'd think that someone would've thought to flip these things over."

Your problem is that you are looking at U.S. Constitution version 1.0 - an obsolete national operating system that is no longer supported.

The current national operating system resides on an Etch-a-Sketch at Ruth Bader Ginsburg's house.

ChrisO|11.14.08 @ 5:30PM|#

Plus, I'd like to hear Obama supporters explain why he shouldn't disavow executive privilege.

Radley, you'll probably have to wait until joe gets back to hear the New Official Party Line about this.

|11.14.08 @ 5:35PM|#

Radley, you'll probably have to wait until joe gets back to hear the New Official Party Line about this.

I'm guessing it will have something to do with the Right People Being in the White House.

Realistically, though, as long as Congress is in Dem hands, they aren't going to do anything as rude as subpoena a minion of the Big O, so he'll probably skate on this one by never having the opportunity to claim executive privilege.

Doug|11.14.08 @ 5:59PM|#

Well it's a nice thought, anyway.

Mad Max|11.14.08 @ 6:01PM|#

"(1) Quote one of his speeches.
(2) Point out something that he just did.
(3) Draw your own conclusions about whether Hope 'n' Change was having you on to get elected."

Feel free to try. Obama's supporters will become instant realpolitickers - "oh, don't be so naive, of course he had to say that stuff to get elected, just like FDR had to promise to balance the budget and stay out of foreign wars. Are you saying FDR *shouldn't* have Saved Capitalism From Itself and then gone on to Save the Universe?"

|11.14.08 @ 6:16PM|#

Gilbert -

""Why Obama Should Swear Off Executive Privilege"

Obama thinks he's the second coming of FDR.

He's not going to swear off anything."

He's not the only one... neat little piece over at CNN on reinstituting the FDR type WPA.

As for swearing it off, maybe more likely to get congress to swear off letting it slide.

MAX HATS|11.14.08 @ 6:48PM|#

Realistically, though, as long as Congress is in Dem hands, they aren't going to do anything as rude as subpoena a minion of the Big O, so he'll probably skate on this one by never having the opportunity to claim executive privilege.

Bush frequently invoked "executive privilege" in response to court subpoenas. Those court cases will continue, and new court cases will come about on similar matters. We will indeed see how often the Obama admin resorts to it.

Every modern administration has used it. Bush used it a whole lot more, and for all kinds of novel things. I expect a compromise result - some use of executive privilege (all modern presidents have) but not to the level of the Bush admin (and who could?). Like all compromises, it will leave all purists outraged.

|11.14.08 @ 6:51PM|#

One thing to keep in mind--Bush likely would've been Clinton-Rite without 9/11. If al Qaeda decides to test Obama's resolve and hit us during the transition, he may very well out-Bush Bush. Democrats are notorious for doing that in law enforcement, for instance, because they don't want to appear weak in contrast to the GOP.

MAX HATS|11.14.08 @ 7:12PM|#

One thing to keep in mind--Bush likely would've been Clinton-Rite without 9/11.

I don't know. I recall reading articles about the unprecedented levels of secrecy in the Bush white house before 9-11. Bush + 9/11 led to a perfect storm of authoritarian incompetence, where the worst impulses of the Bush admin had all limits removed.

|11.14.08 @ 7:32PM|#

FrBunny: Verzeihen Sie mir bitte.

Sam Grove|11.14.08 @ 9:07PM|#

The new Time mag cover.

|11.14.08 @ 10:38PM|#

McCain would have been worse.

|11.14.08 @ 10:40PM|#

I may have missed it: what part of the constitution allows the legislative branch to subpoena the executive (other than impeachment?)

If the President and all his advisers are subject to "criminal" investigations for non-crimes like - for example, not re-hiring 9 federal prosecutors at the end of their terms - do you think they will be more or less open in their procedings? If I were advising the President under these conditions I would do nothing in writing, and not give any advice in any location that might be recorded - ever. Is that a better option?

Should we also ask the congress to be willing to deliver any/all staff advice and documents to the executive branch - perhaps the justice department - at any time for any reason? Hey, if you aren't doing anything wrong then there is no reason why we shouldn't be able to see what your staff is telling you. Is this also something you would recommend?

I am not particularly fond of secrecy in government. However, the criminalization of politics is responsible for the increasing secrecy - not necessarily the people occupying the office.

Sam Grove|11.14.08 @ 11:00PM|#

However, the criminalization of politics is responsible for the increasing secrecy...

Has there been criminalization of politics?
You mean like laws restricting the political speech of citizens?

|11.15.08 @ 5:33AM|#

just because it's always been so, doesn't mean it always will be so.

Sure, the guy might suddenly get smacked on the head and become unable to lie, like some character in a Jim Carrey movie.

-jcr

Joel|11.15.08 @ 8:44AM|#

The new Time mag cover.

We are so hosed.

|11.15.08 @ 12:15PM|#

Much appreciated. BTW, the Fr in FrBunny is for "frau". As in the opposite of "herr". As in "keep the 'Mr.' to yourself". ;)

See, I thought it stood for "Freedom Bunny"
But I guess "Frau Bunny" makes more sense.

Neu Mejican|11.15.08 @ 12:16PM|#

Campaign promises.

http://www.propublica.org/article/will-obama-keep-transparency-promises/

Executive Privileged is not the whole game.

Viper makes some good points, imho.

I imagine that Obama will have fewer leaks than Bush, tight control of his process for making decisions, but I can't imagine he would be Bush-like in his evocation of EP.

|11.15.08 @ 1:26PM|#

I'm not an attorney. Privilege is a legal term rooted very deeply in our courts system. Doctors, lawyers and spouses just to name a few. A mass murderer can invoke privilege for things he said to his wife. A defendant can only aid in his defense with atty./client privilege. How can we expect the pres. to be able to run the country without privilege with his staff? Transparency and privilege are not the same.

The president MUST have privilege. Now, we can debate whether or not that privilege is absolute. Where do we draw the line? Perhaps, a 2/3 vote of congress? Criminal investigation? Impeachment proceedings? What about issues of national security? Do I think privilege was abused by Bush/Cheyney? Absolutely. But that alone should not be the reason for denying future presidents of this. And no president should be asked to waive it from the door.

|11.15.08 @ 7:22PM|#

So, does this mean if the President wishes to question Congressional staffers about their internal meetings, perhaps via public hearings, that would be A-OK as well?

The Congress has a constitutional power of "advice and consent" in the hiring of White House bureaucrats. Their meddling and interference in the Presidential cabinet should probably end there.

I didn't agree with much that the Bush White House did or said, but I was completely behind them on this point.

|11.15.08 @ 7:46PM|#

The president MUST have privilege

Then propose a constitutional amendment to give it to him. Until and unless such an amendment is passed, he's just a citizen who's subject to subpoena like the rest of us.

-jcr

Just Plain Brian|11.15.08 @ 9:41PM|#

I'm not an attorney. Privilege is a legal term rooted very deeply in our courts system. Doctors, lawyers

Sure, Doctors and lawyers have privilege with their clients.

But since the "clients" of the President are not their advisors, this comparison ends there. What they are doing might be comparable to your lawyer keeping secrets from you.

The president MUST have privilege.

Then the president MUST pay for those employees out of his own pocket. As long as the citizens pay the tab, the citizens have a right to know.

|11.16.08 @ 8:42AM|#

Those advisors are his "clients". He appoints them. They are there for him and him alone. Just because he is not signing their paychecks is irrelevant in this case. How can the president possibly trust the advice given if that advice is subject to congressional inquiry. How about abuses going in the opposite direction? Yes, it is a two way street. An opposition party controlled congress can use it to undermine a president for their own political gains.

The constitution is at best, vague. I don't think there needs to be a constitutional amendment to solve this. Legal precedent is not enough. Just a "simple" law spelling out exactly when and where. Then, that law could be tested for constitutionality in the Supreme Court, if need be.

John C. Randolph

Do you really think the leader of the free world is just another citizen? Nice sentiment but, don't be naive.

|11.16.08 @ 9:33AM|#

See, I thought it stood for "Freedom Bunny"

And for the record, I don't speak a word of German. One of the H&R regs gave me the Fr, but I can't remember who.

Being at work on Saturday sucks.

|11.16.08 @ 11:02AM|#

"Executive privilege is the idea that a president should be able to shield his staff from congressional or legal inquiries because staffers who know they could potentially be subpoenaed may not feel as free and open to give the president candid advice. This is nonsense."

What is nonsense is your notion. Even more nonsensical is that most executive privilege is bad. That's a pretty big baby (the nation's general interests that are promoted by confidential thought processes) to throw out with the bath water!

VM|11.16.08 @ 12:30PM|#

FrBunny - wasn't that a while ago?

|11.16.08 @ 1:46PM|#

"Sure, Doctors and lawyers have privilege with their clients.

But since the "clients" of the President are not their advisors, this comparison ends there. What they are doing might be comparable to your lawyer keeping secrets from you."

You have it backwards.

The President is the "client" of the advisors. They work for him.

|11.16.08 @ 2:00PM|#

Yes, it was awhile back. Was it you? It was in a thread about Ron Paul being a Christian.

Just Plain Brian|11.16.08 @ 2:01PM|#

The President is the "client" of the advisors

It's called "Public Service", because the public is who they should be serving.

All of them work for us.

If the President needs privileged advice, he can pay his own money for it.

Eric Evans|11.16.08 @ 2:34PM|#

Viper,

The Constitution is so 1788. I mean really. You don't expect the Godzilla Federal Government to actually follow a document that impedes its power, do you?

Just Plain Brian|11.16.08 @ 2:37PM|#

How about abuses going in the opposite direction? Yes, it is a two way street. An opposition party controlled congress can use it to undermine a president for their own political gains.

That makes no sense. If someone knows they will never have to explain their advice or answer for it, it won't make them more diligent. In the words of Justice Louis Brandeis, "Sunlight is the best disinfectant".

The opposition party is not a bug, it's a feature, and it's one that will reduce the possibility for corruption.

|11.16.08 @ 2:40PM|#

Well then what's the use? If there isn't going to be some sort of privilege, the president can't trust the advice given to him, why have advisers at all? And what's next? Getting Secret Service people to testify? I hate to argue from a slippery slope but, Secret Service salaries are paid with tax dollars. I guess they should have to say everything they see. Or else the president can hire his own "posse" to protect him and his family.

Just Plain Brian|11.16.08 @ 2:47PM|#

If there isn't going to be some sort of privilege, the president can't trust the advice given to him

You're assuming an awful lot, and I don't agree. The president can get good advice, and be able to trust it, without having to keep it secret from everyone.

Exactly what sort of advice do you think the President will get that can never be reviewed by anyone? And if this advice is both good and legal, what exactly is the risk of it being later reviewed? Sounds like it might be the kind of advice he shouldn't be following anyway.

|11.16.08 @ 2:57PM|#

Yes he can get good advice, but can he trust it? Can he trust it to be the true feelings of his adviser if that adviser knows he may someday have to reveal it? That seems to go against the entire intellectual process. Suppose an adviser, playing devil's advocate, recommends a first strike against Russia? Later, in a congressional hearing, that could be taken out of context. So then, the adviser becomes limited in exploring the possibilities, thus hampering the intellectual process.

Just Plain Brian|11.16.08 @ 3:02PM|#

Suppose an adviser, playing devil's advocate, recommends a first strike against Russia? Later, in a congressional hearing, that could be taken out of context.

Being reticent to recommend a first strike against Russia would qualify as a feature, not a bug.

If the adviser has to hide his true feelings from review forever, maybe the problem is the true feelings themselves and not the review.

|11.16.08 @ 3:18PM|#

Look, let's take the example of Richard Clark. He testified before the 9-11 commission about the Bush administration's "predisposition" to attacking Iraq before the 9-11 attacks. That alone could be considered a violation of privilege, and trust. But there was much more to it than that. There was the question of whether or not the Bush admin. manipulated intelligence to justify invading Iraq. There is a much bigger picture here, in this case privilege should be ignored due to the possibility of criminal actions. But, had we not invaded Iraq, and a democratic congress compelled this testimony, they could use it for their own political gain.

I am in no way saying there should be blanket privilege. But there needs to be a base line in order for advisers to effectively explore all possibilities.

|11.16.08 @ 3:24PM|#

I'm not sure I understand you're metaphor with regards to a bug and a feature.

Just Plain Brian|11.16.08 @ 3:29PM|#

There is a much bigger picture here, in this case privilege should be ignored due to the possibility of criminal actions.

But ultimately that's the whole problem, because we won't know when they invoke privilege if it should be ignored or not, we simply have to trust that they aren't misusing the power. Given the government's history of misusing such secrecy I have a hard time giving such absolute trust to any president, regardless of their party.

Just Plain Brian|11.16.08 @ 3:33PM|#

I'm just saying that I think it's a good thing if advisers think twice before suggesting something that could come back to bite them later, because it might make them less reckless.

|11.16.08 @ 3:43PM|#

Well, if there is reasonable suspicion, to use a law enforcement term. The White House and the Congress have proven that neither one can be completely trusted. And you can throw in the Judicial as well. There needs to be certain guidelines in place. I can't expect Obama to completely waive all privilege, but he should not use it to try to cover his ass.

Just Plain Brian|11.16.08 @ 3:52PM|#

Well, if there is reasonable suspicion, to use a law enforcement term.

I would agree, but reasonable according to whom? If the President won't waive privilege, who can overrule him? If no one can, we're right back to "just trust us".

There needs to be certain guidelines in place

I agree.

|11.16.08 @ 5:25PM|#

The President is the "client" of the advisors. They work for him.

I think it's more accurate to say that the president is their boss. The executive branch can be considered a corporation, with all employees reporting ultimately to the president.

It's not being used to promote candor and open dialogue among presidential advisers...

Radley, you say that Executive Privilege isn't being used to foster communication, but rather to stonewall investigations. And surely the second clause is true. But your article doesn't present any evidence that suggests the first clause. Admittedly, it might be hard to prove or disprove this allegation, since to prove, you have to prove the negative, and to disprove it, you have to find evidence of confidential communication, obviously a difficult task.

I think you'd be best off reserving your judgment on this part of the issue, while sticking to your guns on the palpable use of EP as a stonewalling tool.

|11.16.08 @ 7:37PM|#

Do you really think the leader of the free world is just another citizen?

The president of the united states is not the "leader of the free world." He's not even the leader of the country. He's the leader of one of three coequal branches of the federal government.

-jcr

|11.16.08 @ 7:49PM|#

You don't expect the Godzilla Federal Government to actually follow a document that impedes its power, do you?

Expect it? No. Demand it? Hell, yes.

That document doesn't just impede its power, it's also the entirety of its legal power. Anything the federal government does that's not authorized by the constitution is a usurpation and a violation of the tenth amendment.

-jcr

|11.16.08 @ 8:53PM|#

"The president of the united states is not the "leader of the free world." He's not even the leader of the country. He's the leader of one of three coequal branches of the federal government."

You are confusing leader with totalitarian.

|11.16.08 @ 9:02PM|#

King Baby, George W, tried to be that totalitarian leader, but found it was more effective to throw hissey fits, hold his breath, and bang his fists on the table, destroying careers and reputations of otherwise decent public servants. Do I need to make a list?

|11.16.08 @ 9:37PM|#

You said it, John C.!

|11.16.08 @ 10:09PM|#

"One way Obama could send a clear message about the type of service he'll expect from the people who will staff his administration is to make an early vow forbidding any of his staff from claiming executive privilege should they later be asked to testify before Congress, in a deposition, or in any other legal setting."

Like the vow he made to limit his campaign to public financing? Right...

Dave|11.17.08 @ 9:56AM|#

Assistant Village Idiot|11.17.08 @ 11:30AM|#

EP is generally invoked when the POTUS believes that people might not understand, might jump to the wrong conclusions, or might use the information unfairly. While virtually anything could make it through that loophole without scraping the sides, it is also an accurate assessment of the current political climate. The opposition would absolutely use even mild or innocent material against you if they could. Clinton, especially after 1994, believed that the Republicans would use whatever it could to take him down. Bush believed that the media and the Democrats would reframe anything uncovered to look criminal.

You can see the sense in that thinking, but it still shouldn't be allowed as an excuse. It just gets away from even well-meaning people too quickly. The first time, you use it to cover something that people wouldn't understand properly; after that you use it to cover things because people would understand them properly.

|11.17.08 @ 12:40PM|#

The article above is pure, unadulterated, wishful thinking. Obama will use EP as vigorously, if not more so, than GWB did. He will defend GWBs assertions of EP in the courts and in front of Congress.

The chirping you hear is the crickets. The media, the congressional democrats and academia will be silent about this.

Now that THE ONE is President, Executive power is a blessing not a curse. There can be no issue about abuses of Executive power during the four years commencing 2009-JAN-20.

|11.17.08 @ 12:53PM|#

No offense, but what is the point of such musing? That's like saying Obama should "make the government more efficient" or "balance the budget". It will never happen.

Remember when Bill Clinton promised the most ethical administration in history? Or when George Bush said he believed in small government. They're just words.

|11.17.08 @ 3:48PM|#

What if they are never called until the House or the Senate or both have a Republican majority?

|11.17.08 @ 5:43PM|#

EP is essential (as the Federalist Papers implicitly pointed out in defining the case for an executive that could act with secrecy and dispatch) because advisers need to say things that are impolitic or undiplomatic.

If aide A says "We can't cut the budget that way because Ted Stevens is getting paid to support the project and he'll block us," or aide B says "We can't trust a word that Sarkozy says" it might be better not to have that stuff discoverable by lawyers on fishing expeditions. The issue isn't whether advisors are advocating illegality--it's whether they can candidly discuss the real world without political or diplomatic embarrassment.

PA|11.17.08 @ 8:37PM|#

This is a joke column, right? Is it April 1st already?

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