Dinner-gate: Can Desiree Rogers Invoke Executive Privilege?

The pressure is still on the White House Social Secretary to testify in front of the House of Representatives’ Homeland Security Committee.  The Committee has set a January 20 date for another hearing on the state dinner flap and the heat is likely to intensify in light of the new revelation that Carlos Allen, a Washington D.C. party planner, was also able to sneak into the event.

The open question is whether these glitches were indeed lapses in security or whether they were somehow allowed to occur by the White House itself. While the Committee wants Desiree Rogers to testify the White House has so far demurred.

The Committee seems for the moment to be wary that a subpoena might be met with a formal assertion of the President’s executive privilege.

To whom does that privilege belong and thus who can in fact assert it successfully? Well, as the Chicago Tribune pointed out recently the privilege belongs to the President himself. While the boundaries of the privilege are far from clear, a key legal advisor to the President, constitutional scholar Cass Sunstein, has written: “Direct decisionmaking by the President is required. If the President himself is not directly involved, there is no privilege.”

Thus, for Rogers to claim the privilege validly, assuming we accept Sunstein’s view, the President would have had to have been directly involved in the decision that led to the admission of the Salahi’s to the White House for the Indian state dinner.

It turns out that there is some evidence that that is what in fact happened.

Secret Service Director Mark Sullivan testified that the key decisions about the handling of security and guest admissions for the event were made at a meeting between the White House staff and the Secret Service held two weeks before the event. Sullivan was not at the meeting but he told the Congress:

“Sir, for every event that we have at the White House, we have a planning meeting with the White House staff. And we did have a planning meeting for this particular visit. During that planning meeting, we all agree about what our predetermined responsibility will be for that particular event. In this meeting, we agreed at that particular checkpoint, we would take control of the list.”

Rep. King asked: “You said it was agreed; who initiated that? Did you ask the social secretary’s office not to be there or did they ask not to be there?

MR. SULLIVAN: I just know that, that’s what the result of our meeting was, sir.”

Sullivan was asked who was at the meeting and he said he did not know but he would find out and share that list with Congress.

Could Sunstein’s “direct involvement” requirement apply to such a meeting? Possibly.

Let’s assume that Rogers was at that meeting and that – the easy case – a decision was made there that all guests on the list would be admitted if they did not pose a threat to the President. Let’s assume the Secret Service agreed that for such guests there would be no need for a representative of Rogers’ office to be present at the check points.

Now presumably anyone, on the list or not – another easy case –  who was deemed to be a threat to the President would not be allowed in. The Secret Service would take care of those folks on their own no matter what the WH staff said.

That leaves only one possible hard case – individuals who show up and are not on the list but that the Secret Service deems not to be a threat to the President. Since Director Sullivan said all the key decisions about admission and security were made at that pre-event meeting, then this third “hard” case would also have been decided upon at that meeting.

One reasonable assumption in light of the discipline and reputation of the Secret Service is that they actually did what they agreed to the night of the Indian dinner. While Sullivan seemed to apologize for what happened it seems he was really just regretting that standard operating procedure for many years – the presence of a staff person from Rogers’ office – was not used that evening.

So it seems reasonable to presume in that third hard case – the Salahi situation (not on the list yet not a threat) – the Service agreed at that pre-event meeting that they would simply let such individuals enter.

But it seems highly unlikely they would agree to such a change in SOP just because someone like Rogers made the request. Their obligation is to protect the President and it is not clear that they would accept the word of third tier staffers when it comes to such a sensitive issue as access to the White House.

So is there a scenario that explains why the Secret Service did their job yet somehow allows Rogers to claim executive privilege and avoid explaining what happened?

That requires us to return to Sunstein’s threshold of “direct” Presidential “involvement.” Presumably that concept does not stretch as far as including a lower level administrative staffer like Rogers. But it might be argued that it extends to individuals who are agents of the President and speak with his authority when he is not present.

So what if someone else from the President’s team were at that critical meeting?

One possibility of course is that Michelle Obama might have been present since one would think she would care a great deal about the details of this first state visit to her new home. But it is not clear the First Lady could or would want to attempt to invoke the executive privilege (perhaps there is a marital privilege, of course) and since that is what the White House is threatening to do it seems unlikely it is the First Lady they are trying to protect.

That leaves one other serious possibility, that Rogers’ Chicago gal pal Valerie Jarrett was present at the meeting with the Secret Service and that she was the individual who made the decision to allow the Service to just wave in people like the Salahi’s should that situation arise or who minimized that possibility so there would be no need for the presence of a White House staffer slowing up the guests as they arrived.

Jarrett is, without doubt, an agent of the President who can speak with his authority, formally and informally.  She is formally a “senior advisor and assistant to the President for Public Engagement and Intergovernmental Affairs.”  It was, for example, Jarrett who traveled to India recently to persuade the Dalai Lama to delay a trip to the United States so as to not interfere with the President’s plans to engage the Chinese communist regime. (To the credit of the Dalai Lama, she failed.)

Clearly, when Jarrett walks into the room she is seen to speak for the President unless Obama himself is there. That could arguably fall within the ambit of “direct” Presidential “involvement” as Sunstein puts it.

It appears from the photo below that Jarrett was actually just ahead of the Salahi’s in the receiving line, so if true that makes it clear she would have been aware of their presence at the reception.  Indeed, according to the Washington Post that is Valerie Jarrett in the photo. The Post also notes that the White House is unwilling to provide Congress the list of names of individuals at the pre-Dinner planning meeting with the Secret Service. They report the list, a “central part” of the story, “is being guarded by the administration as a virtual state secret.”

*Nov 27 - 00:05*

So when the White House says they view a request for Rogers to testify as possibly violating the Executive Privilege they may in fact be concerned that Rogers will be asked what Jarrett did at that meeting and that Jarrett herself would then be called to testify.

GIven the tight knit relationship between Jarrett and the President, that would, of course, open up another can of worms altogether.