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.