The banality of broken campaign pledges

The Obama administration campaigned on a pledge to be the most transparent administration ever. They promised political accountability and an change from the politicization of personnel decisions and the administration of justice of which they accused the Bush administration. The media and other Obama supporters were much taken in by the charade. As anyone who has been an adult for more than one presidential administration knows, such pledges have all the value of marriage vows in Hollywood. President Obama administration has not disappointed on that account. Or, at least, he hasn’t disappointed those of us who remembered the Chicago origins of the Obama administration.

One practice of the Bush administration at which liberals were aghast was the assertion of “executive privilege” to withhold information from Congress. Executive privilege is not expressly found in the Constitution. But it is implied from the broader structure of separation of powers in the Constitution as delineated in a combination of text and practice. The Supreme Court agreed with this constitutional foundation for executive privilege in the 1974 case of United States v. [President] Nixon. Although the particulars have changed and the extent and frequency of the claims have become bolder, executive privilege to withhold information from Congress and the courts has been asserted by almost every President, beginning with George Washington. Liberals certainly had little enthusiasm to complain when Bill Clinton’s underlings asserted executive privilege during investigations by the Republican Congress.

Executive privilege is justified on different grounds and policies. Regarding specific claims of national security, the concern is that the information cannot be disclosed without harm to the nation. Perforce, this requires the President to have a great deal of leeway to make that determination, and his judgment is entitled to absolute or near-absolute deference, as he has the most complete access to information and the advice of trained experts that the other branches lack. The more general ground of need of confidentiality of communications between the President and his subordinates may be overridden by federal courts in certain criminal law cases, but, even there, the President’s determination is entitled to great respect. Indeed, if the information is sought by Congress, the President’s refusal to supply the information may be judicially unreviewable, for reasons both theoretical (lack of a “justiciable” question) and practical (difficulty of enforcement of the demand for information). Any Congressional recourse or retaliation is political.

However, the privilege is an affront to the transparency and openness of government seen as necessary to a republic, particularly when only a general need for executive confidentiality and frankness of intra-departmental communication is proffered. Hence, the practice is that the privilege is to be asserted by the President, not by some underling acting on his or her own. The Supreme Court has extended that privilege to the Vice-President, as well. He, too, is a constitutional officer whose authority is independently fixed. He is not merely a political minion of the President.

Placing the power to assert executive privilege in the hands of only such constitutional officers limits the frequency and advances the accountability and consistency of the privilege’s use. One of the constitutional innovations of the Clinton administration was to have underlings assert the executive privilege without direct order from the president, who, then, retained plausible deniability and deflected accountability. Congress might be in an uproar, but there really was little they could do, at least judicially. Still, executive privilege is supposed to be used against serious intrusions by the other branches into sensitive and substantively significant deliberations within the executive branch and for matters of national interest and security.

Now comes word that the Obama administration is planning to assert executive privilege to prevent that pillar of presidential power, the White House social secretary, from testifying before Congress about “Gate-crashing-gate.” This smacks of the same extreme bunker mentality and paranoia exhibited by President Richard Nixon and by the Clinton administration in Hillary’s “Filegate.” But it well symbolizes the secretive and defensive Barack Obama. And, needless to say, he will get away with that, not the least for the reason that the liberal former watchdogs in Congress who were so eager to sound the alarm whenever the Bush administration sought to prevent the publication of national secrets by The New York Times and Senator Jay Rockefeller, are themselves now the majority seeking to silence Republican attempts to obtain the testimony.

But, still, the point has been scored against the administration and its claim of openness and accountability: Expending political credibility on executive privilege to keep the White House social secretary silent?