Obama Should Swear Off Executive Privilege

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

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.

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.

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.