2 Separation of PowersThe division of the powers of government among the different branchesSeparation of powers is a primary strategy of promoting constitutional or limited government by ensuring that no one individual or branch can abuse its powersIntertwined with the concept of checks and balances
3 Executive PrivilegeRight of the President to withhold information from the other branches to preserve confidential communications within the executive branch or to secure the national interest.Not explicitly mentioned in the Constitution.
4 Human ContinuumWhen a President receives a court order to turn over evidence, should he have the power to refuse under executive privilege?Write down your answer and why.Line up by Yes or No on opposite sides of the room.Provide reasoning.
6 June 17, 1972 Watergate Break-in Five men were arrested inside the Democratic National Committee’s offices in the Watergate complex in Washington, D.C. at 2:30 am. They were trying to bug the offices.Former Attorney General John Mitchell, head of the Nixon reelection campaign denies any link to the break-in.Image from
7 Nixon ReelectedOctober 1972: FBI agents establish that the Watergate break-in stems from a massive campaign of political spying and sabotage conducted on behalf of the Nixon reelection effort, The Washington Post reports.November 1972: Nixon is reelected in one of the largest landslides in American political history, taking more than 60 percent of the vote and crushing the Democratic nominee, Sen. George McGovern of South Dakota
8 The Case ContinuesJanuary 1973: Former Nixon aides G. Gordon Liddy and James W. McCord Jr. were indicted. They were convicted of conspiracy, burglary and wiretapping in the Watergate incident. Five other men pled guilty, but mysteries remain.
9 Resignations and Firings April 1973: Nixon’s top White House staffers, H.R. Haldeman and John Ehrlichman, and Attorney General Richard Kleindienst resign over the scandal. White House counsel John Dean is fired.
10 InvestigationThe Senate Watergate committee begins its nationally televised hearings. Former solicitor general Archibald Cox is chosen as the Justice Department’s special prosecutor for Watergate.Image from
11 TimelineJune 1973: John Dean (former White House Counsel who was fired) told Watergate investigators that he discussed the Watergate cover-up with President Nixon at least 35 times, The Post reports.
12 The TapesFormer presidential appointments secretary, reveals in congressional testimony that since 1971 Nixon had recorded all conversations and telephone calls in his offices.President Nixon refused to release the tapes to Congress or the Special Prosecutor.He claimed they were protected under “executive privilege”.Image from
13 TimelineOctober 1973: Saturday Night Massacre: Nixon fires Archibald Cox (Special Prosecutor) and abolishes the office of the special prosecutor. Attorney General Richardson and Deputy Attorney General William D. Ruckelshaus resign. Pressure for impeachment mounts in Congress.November 1973: Nixon declares, “I’m not a crook,” maintaining his innocence in the Watergate case.
14 The Release of the Tapes Nixon finally released some of the tapes, but portions of them were blank.Watch a short review of the Watergate scandal.
15 TranscriptsApril 30, 1974: The White House releases more than 1,200 pages of edited transcripts of the Nixon tapes to the House Judiciary Committee, but the committee insists that the full tapes themselves must be turned over.
16 Executive Privilege?Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest.
17 QuestionIs the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial REVIew?
19 Marbury v. MadisonThis case established the court’s power of judicial review.Judicial review: The power of the courts to declare laws and actions of the local and state government or the national government invalid if they are found to contradict the US Constitution.
20 United States v. BurrBurr requested the court to subpoena the President during grand jury proceedings so he could view the evidence that would be used against him. Burr was being tried for treason.The arguments Jefferson offered for not fully complying with the subpoena included the President's executive privilege and his duty to preserve national security by maintaining the confidentiality of certain negotiations.
21 DecisionChief Justice John Marshall’s (presided in this federal circuit case – not US Supreme Court) ruling established that no man, not even the President is above the law.President Jefferson followed Chief Justice Marshall’s orders.
22 Historical Examples Outside the Court George Washington refused to turn over to the House certain documents related to treaty negotiations between US and Great Britain.President Eisenhower in a stand-off with Senator Joseph McCarthy wrote that the President could refuse to turn over any document he felt was privileged or confidential. Coined the term Executive Privilege.
24 Two Arguments United States President Nixon Executive privilege is not an absolute power.Executive privilege cannot be used to deny the Court’s access to evidence.The President should not be able to be the final arbiter of what the Constitution means.This does not involve confidential national security interests.The US Constitution allows the President the power of executive privilege.The power to withhold information is the President’s absolute power. The President must have this power to maintain national security interests.The dispute should be resolved in the executive branch.
26 Individually Answer the Question YES or NO based on…The facts of the caseThe ConstitutionPrecedentGive 3 Reasons in Writing
27 Is there an executive privilege in this case? If you answer YES…If you answer NO…You are siding with President NixonYou are siding with the United States
28 Unanimous Decision, 8-0 Burger Douglas Brennan Stewart White Marshall BlackmunPowell
29 Outcome of US v NixonJuly 24, 1974: The Supreme Court rules unanimously that Nixon must turn over the tape recordings of 64 White House conversations, rejecting the president’s claims of executive privilege.
30 DecisionThe US Supreme Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege.The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice."
31 The DecisionNixon had to release the tapes (there was no executive privilege)The Court has jurisdiction in this caseExecutive privilege conflicts with the constitutional obligation of the judicial branch and the functions of the courtIn order to ensure due process, all “relevant and admissible evidence” must be producedImage from
32 Significance The RULE OF LAW United States v Nixon reinforced the rule of law establishing that no one, even the President of the United States, is above the law.Concept that citizens are governed by the law and institutions, not individuals. The law supersedes all else an dis intended to be constant, predictable, and just.
34 ResignationJuly 27, 1974: House Judiciary Committee passes the first of three articles of impeachment, charging obstruction of justice.August 8, 1974: Richard Nixon becomes the first U.S. president to resign. Vice President Gerald R. Ford assumes the country’s highest office.