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President-Elect Follows Tradition In Testifying

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The New York Times

Published: December 26, 2008

Every president for more than three decades has had to talk with federal prosecutors at one time or another. President-elect Barack Obama may have set a land-speed record by giving his first interview to investigators even before taking the oath of office.

Obama sat down last week with four investigators looking into the alleged effort to sell his former Senate seat. As a witness, rather than a target, Obama seems to have had an easier time with the experience than some of his predecessors. But it is certainly not the way he wanted to begin his presidency.

"Here the guy hasn't even gotten his tuxedo for the ball yet and already there's a prosecutor who wants to talk him," said Robert S. Bennett, one of Washington's most prominent lawyers, who has represented members of Congress, Cabinet secretaries and even President Bill Clinton in all manner of politically charged cases. "It's the era that we live in."

Another reflection of the era is that Obama and his team evidently made no effort to avoid the interview. In the past, some presidents have cooperated with prosecutors or court proceedings only reluctantly, delaying or trying to limit the parameters of their involvement while expressing concern about their prerogatives as the head of the executive branch. But in recent years, the practice has grown so commonplace that Obama's aides said there was never any debate about whether he would answer questions.

With no known legal exposure himself, of course, that was an easier decision for Obama. As a political matter, Obama, coming into office on promises of transparency and reform, may have had little choice but to cooperate, even if it meant disclosing the sorts of internal deliberations that presidents often guard jealously, like whether he wanted an adviser to serve on the White House staff or in the Senate.

In addition, a president-elect could have a harder time making a legal argument about shielding confidential discussions than a sitting president does. The concept of executive privilege, while not explicitly mentioned in the Constitution, has been recognized by courts over the years, though it can be outweighed in compelling circumstances like a criminal investigation. It is a matter of some debate among lawyers whether, as president-elect, Obama would have any claim to executive privilege.

Obama was interviewed Dec. 18 at his Chicago transition office by two assistant U.S. attorneys and two agents from the FBI looking into alleged efforts by Gov. Rod R. Blagojevich of Illinois, a Democrat, to profit from his appointment of Obama's successor to the Senate. Obama was accompanied by his personal lawyer, Robert F. Bauer, and an associate.

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