Last week, we learned that the Obama Administration was willing to leave for another day the question of the legitimate, lawful scope of its "executive privilege" to mute former White House subordinates like Karl Rove and Harriet Miers. On Monday, we learned from Charlie Savage of the New York Times that the administration also can wait for an answer about the constitutional scope of a president's power to issue "signing statements" in the way they were used by George W. Bush during his tenure at the White House. (More here.)
(AP Photo/Gerald Herbert)
In both cases, the Obama White House sacrificed a measure of principle to achieve a form of pragmatism. In both cases, it reversed the practical import of Bush policy but kept for itself the option of reversing back yet again should circumstances require it. In both cases, it sought to avoid a court ruling that it may or may not have wanted for its own sake and for the sake of future presidencies. Sort of like cautious lawyer-politicians acting like… cautious lawyer-politicians! Go figure.
We now may never know whether the last occupants of the White House overreached constitutional boundaries when they ordered former officials to observe the privilege of silence even after Bush was no longer the "chief executive." The Obama Administration was willing to give itself legal maneuvering room on "executive privilege" over the next few years should there be a need to invoke it. But Rove and Miers will finally testify about their roles in the U.S. Attorney scandal—to the House Judiciary Committee which has been hounding them to do so for years. As a practically matter, the investigation into the U.S. Attorney scandal will be much the richer as a result of the compromise.
Likewise, we may never know whether it was lawful for Bush to have used those self-serving statements so relentlessly as an offensive political and legal weapon against the legislative branch; whether the president violated the principles and doctrine of "separation of powers" when he undercut the scope of the very laws he was endorsing.
Savage, who won a Pulitzer Prize for his coverage of the issue two years ago, notes that most of Bush's "challenges were based on an aggressive view of the president's power, as commander-in-chief, to take actions he believed necessary to protect national security regardless of what Congress said…"
We won't know this because the Obama team has just completed a tactical retreat from Bush's aggressive approach. There will still be signing statements, Obama reportedly has declared, but they will be used as sparingly as they were before the previous administration (Republican and Democrat presidents like have used them so). Moreover, the justifications and constitutionality of signing statements will now be vetted by the Attorney General at the Justice Department—they will no longer be a White-House-only exercise. And the new president wants everyone to view as suspect the statements issued by his predecessor.
If you were hoping that the Obama team would come into the White House and aggressively undercut its own power it's time to change dreams. But you are no doubt also disappointed if you were wishing the new president would be too busy tackling the economic crisis to expend political energy undoing some of the legal and constitutional excesses of his predecessors. And there is nothing complicated about it: the president, who is a lawyer, and who was a constitutional law professor, so far is acting like one.
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. You can read more of his posts in Hotsheet here.