Is the Obama White House on a collision course with its main allies in Congress? And, no, we’re not talking about the Left’s opposition to the president’s Afghanistan strategy, or his on-again/off-again support for a public option in health-care-reform legislation. This time the friction could arise over congressional demands that White House Social Secretary Desiree Rogers — she of “Obama is the greatest brand on Earth” fame — and possibly other White House officials testify before Congress about the serious lapses in security that allowed Mr. and Mrs. Salahi to crash a White House state dinner. Certain congressional committees want Ms. Rogers, who is responsible for invitations to White House social events, to help explain how this could have happened. But the White House has said not only that Ms. Rogers won’t testify, but that Congress has no power to make her testify. As Robert Gibbs, the White House press secretary, told reporters yesterday: “I think you know that, based on separation of powers, staff here don’t go to testify in front of Congress. She won’t — she will not be testifying in front of Congress.’’
The White House’s position that White House staff “don’t go to testify in front of Congress” must come as quite a shock to its allies in Congress — particularly Nancy Pelosi, Harry Reid, John Conyers, and Patrick Leahy, who led the charge to force a number of Bush White House officials to testify during the last administration. Speaker Pelosi and company went so far as to hold certain Bush officials — former White House counsel Harriet Miers and former chief of staff Josh Bolten — in contempt of the House of Representatives and file a lawsuit in federal court demanding testimony and documents concerning the White House’s role in the firing of nine U.S. attorneys. Imagine their surprise to learn that Obama’s lawyers agree with Bush’s lawyers that Congress is powerless to require testimony from senior White House officials.
The White House referred to the general concept of “separation of powers” — in its most basic terms, the constitutional principle that establishes Congress and the executive as co-equal branches of government — as the reason for Congress’s impotence, but carefully avoided using the loaded terms “absolute immunity” and “executive privilege.” Is there really any difference? Law students learn in Constitutional Law 101 that absolute immunity (essentially, the idea that the president and his most senior White House advisers cannot be forced to testify before Congress) and executive privilege (which protects from disclosure communications to and from the president, and communications between administration officials relating to advice that goes to the president) derive in large measure from the principle of separation of powers. So when they said “separation of powers,” what they were really saying was “absolute immunity” and “executive privilege.”
The White House could not, of course, use those actual phrases, because they have been so thoroughly dirtied up by Democrats in Congress, who took every opportunity to use their invocation by the prior administration as evidence of its supposed lawlessness, arrogance, and abuse of power. But make no mistake — there is no difference, none, between the legal grounds the Obama administration is using to tell Congress to pound sand and those relied on by the Bush administration. This does not rise even to the level of a semantic distinction; at best, it is obfuscation by over-generalization.
What should most trouble congressional leaders, however, is that President Obama appears to take a far more expansive view of immunity and privilege than President Bush did. Recall that several Bush White House officials were subpoenaed and actually testified before Congress in connection with the U.S. attorney firings, including two of Karl Rove’s deputies. The Bush White House allowed staff to testify as long as they were not among the president’s most senior advisers. So a very narrow category of Bush White House officials, such as Ms. Miers, Mr. Bolten, and Mr. Rove, were protected, but the vast majority of staffers were not.
Obama’s lawyers have tossed this distinction out the window. Desiree Rogers’s job is special assistant to the president and social secretary. This makes her roughly equivalent in rank to Mr. Rove’s deputies who testified, and certainly well below Mr. Rove, Ms. Miers, or Mr. Bolten. One doubts that Ms. Rogers would be described by anyone at the White House as one of the president’s closest advisers, on equal footing with Rahm Emanuel, David Axelrod, or the White House counsel. Nonetheless, the Obama White House has taken the position that Congress may not require her testimony.
Lest there be any doubt on this front, the White House made it clear that “staff here don’t go to testify in front of Congress.” There is no qualifier of any sort in that statement. At face value, this is a breathtaking assertion that all White House staff — everyone from the chief of staff to the 22-year-old assistant just out of college — are absolutely immune from appearing before Congress to give testimony. This jaw-dropper makes the prior administration, vilified by so many Democrats in Congress as imperious and dismissive of congressional prerogatives, look positively weak-kneed and lap-doggish. Incidentally, one has to wonder whether Attorney General Eric Holder and the Department of Justice agree with the Obama White House’s expansive view of immunity. As former Bush White House officials, we are well aware of the Department of Justice’s view of the scope of immunity during Attorney General Michael Mukasey’s tenure. Perhaps this is another example of President Obama bringing change to Washington. The audacity of hope indeed!
Speaker Pelosi and Chairman Conyers must feel particularly double-crossed because they were the principal sponsors of a lawsuit filed in an effort to compel testimony and documents from Ms. Miers, Mr. Rove, and others concerning the U.S. attorney controversy. The speaker and Chairman Conyers prevailed before the federal district court in the last months of the Bush administration, and the new administration took office before there could be an appeal. The district court rejected the Bush administration’s argument that the president’s closest advisers are entitled to absolute immunity from compelled congressional testimony. As was widely reported in the spring, the Obama White House brokered a settlement that effectively ended the litigation; however, the White House agreed to Speaker Pelosi’s and Chairman Conyers’ demand that the district court’s opinion remain in effect, even though they could have sought to vacate the opinion because the case had settled and there was no appeal.
How frustrating it must be, then, for the speaker and Chairman Conyers to see the new occupants of the White House taking a position so much more aggressive than that of the prior administration, and one that is completely irreconcilable with a federal court opinion that the Obama White House itself has consented to keep on the books. Maybe the White House hoped no one would notice; maybe Gibbs misspoke yesterday. Or maybe the White House expects that its allies in Congress, with strong majorities in both houses, will hold it to a very different standard than they did the Bush White House. If it is this last, rather cynical, expectation that ultimately explains the Obama team’s spectacular stiff-arming of Congress, one must assume the White House has made the calculation that, for the Democratic leadership in Congress, political expediency trumps the principles they purport to hold dear. It’s now up to the speaker and the majority leader to tell the public whether the White House got that calculation right.
– Dana M. Perino is former press secretary to Pres. George W. Bush. Bill Burck is a former federal prosecutor and deputy counsel to President Bush.