Among the first "directives" of this very young presidency is one Barack Obama has given himself. From a press release issued earlier today:
I will also hold myself as President to a new standard of openness. Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.
This is a curious directive. As he has before, Obama here seems to be trying to draw a contrast with his predecessor, George W. Bush. But if there were occasions on which Bush failed to consult with White House or Justice Department lawyers on claims of privilege, they don't come to mind. I checked with a lawyer who worked for Bush in the White House Counsel's office who could not recall any either.
Maybe Obama's real complaint is not with Bush but with Bush's lawyers. Maybe he thinks they approved claims that were not "well grounded in the Constitution."
A question Obama does not address is what happens if, following his own directive, his Attorney General says "no" to a request but his White House Counsel says "yes." Someone has to be the decider, if I may use that word, and it would have to be Obama, who, after all, is the president.