A Fine Line And A Delicate Balance

The disturbing “gatecrashing” incident at the White House has resulted in one of those difficult judgment calls that Presidents and their legal counsel inevitably are required to make.  The incident is, quite properly, being investigated by Congress.  Congress no doubt will look at how the security breach occurred, consider how it could have been prevented, and evaluate whether new laws should be enacted to better safeguard the safety of the President and his family and to provide more appropriate punishment for White House trespassers.

The judgment call was presented when Congress asked the White House social secretary, whose office planned the dinner, to testify at the hearing.  She has declined, citing separation of powers issues.  Separation of powers, of course, is the elusive, flexible concept that the three branches of government should stick to their designated constitutional roles and not interfere unduly with the each other’s core activities.  The concept is elusive because the three branches routinely interact.  Congress, with the power of the purse strings and the power to independently investigate, often looks into how the executive branch and the courts function and writes budget and substantive legislation that directly affects the operations of its coordinate branches.

The Constitution doesn’t say a lot about separation of powers.  It is largely a doctrine of judicial creation, developed through a series of cases decided in the centuries since the Constitution was written.  Because it is not well defined, the judgment call comes in deciding when to invoke the concept and when to accede, while reserving all rights, in what seems like a reasonable request by a coordinate branch.  If the President is savvy in waiting to invoke the doctrine until instances where the facts and equities make his case an especially compelling one — say, if Congress sought to force the President’s national security advisor testify about the process the President followed in deciding how to exercise his powers as Commander-in-Chief — then he may create another useful precedent that will expand and strengthen the application of the doctrine.  If, on the other hand, the President repeatedly seeks to avoid any congressional scrutiny through separation of powers arguments, then a judicial challenge may produce a decision that greatly restricts the use of such arguments in the future.  (Of course, there also are political costs to a routine refusal to cooperate in investigations because it looks like the executive branch is stonewalling and overly secretive.)

It is always easy to second-guess judgment calls.  However, I think it is reasonable to question whether the office of the Presidency is well served by refusing to allow the White House social secretary to testify under these circumstances.  Party planning is not a core executive branch function, and Congress’ interest in determining whether the President’s security procedures need to be enhanced is strong.  If the refusal to testify is challenged in court, I am not sure that the equities tip in favor of shielding a social secretary from answering questions about how an uninvited couple that hopes to participate in a reality show was able to get into a high-security state dinner at the White House.

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