By Michael D. Shear
Washington Post Staff Writer
Friday, December 4, 2009
On his second day in office, President Obama pledged to create "an unprecedented level of openness in government" -- an executive memorandum that his administration now says does not apply to calls for his social secretary to testify on Capitol Hill.
The scandal over the state dinner breach by a Virginia couple hardly evokes the weight of Watergate or 9/11. But that has not stopped some in Congress from demanding an in-person explanation from social secretary Desirée Rogers, who was in charge of the dinner.
Obama's top aides -- echoing former president George W. Bush and other past Oval Office occupants -- say the idea of sending the woman in charge of White House parties to a congressional committee runs counter to years of history and to the separation of powers built into the Constitution.
It's an argument that some scholars found to be a stretch. "It doesn't even pass the laugh test, to be quite blunt about it," said Mark Rozell, a public policy professor at George Mason University and author of a new book on executive privilege. "This definitely goes against the president's own pledge for a more open administration, and to move beyond the secrecy practices of the Bush era."
A drawn-out standoff over the issue seemed very unlikely Thursday as efforts by Rep. Peter King (R-N.Y.) to subpoena Rogers were ruled out of order by the Democratic chairman of the House Homeland Security Committee.
But even before the hearing into how Tareq and Michaele Salahi got into the dinner began, Obama's top aides made clear that they had no intention of sending Rogers to the other end of Pennsylvania Avenue. "Based on the separation of powers, staff here don't go to testify in front of Congress," press secretary Robert Gibbs told reporters Wednesday afternoon.
A reporter reminded Gibbs on Thursday that White House staffers testified during Whitewater, the investigation into the Clintons' financial affairs. True enough, Gibbs acknowledged. But "there's a pretty long history allowing White House staff to provide advice to the president confidentially and not have to testify before Congress."
White House officials said Gibbs was not formally invoking an executive privilege claim, but rather speaking broadly to the fact that previous presidents had resisted having their top advisers give testimony about internal deliberations and discussions.
And they noted that Obama made an effort to be transparent by posting Wednesday on the White House Web site an internal memo admitting that mistakes by the staff may have contributed to the state dinner breach.
John Podesta, a former chief of staff in the Clinton administration and someone who has testified before Congress many times himself, said Obama is right to defend the prerogative to keep staff conversations private. The state dinner incident doesn't present a case where Congress is looking for "critical information it can't get any other way."
During the campaign, Obama promised a more restrained use of executive privilege, saying that "nobody is above the law. If there are specific assertions of executive privilege, then, you know, those can be examined. But I think this notion, this blanket notion that you can't subpoena White House aides, where there's evidence of genuine wrongdoing, I think is completely misguided."
Obama added: "We're a nation of laws, and not men and women. So, you know -- and my -- that's a precedent I don't mind living with as president of the United States."
But Emily Berman, a fellow at the Brennan Center for Justice at NYU's law school, said Obama has "in many ways fallen into the trap that a lot of leaders do. They come in with the best of intentions and the most forceful rhetoric. But they find that the temptations of governing push quite a bit against the initial statements."