1. Executive Orders and Privileges
Diplomacy, Clemency, Other Executive Powers
How does the president have the power to legislate and keep secrets private?

2. Key Terms
Executive Order: a rule or order issued by the president to an executive branch of the government and having the force of law (only applies to existing laws passed by the legislative branch)
Executive Privilege: executive right not to disclose private information except in criminal investigations (Watergate Scandal)
Executive Agreement: deals brokered between the leaders of other governments and POTUS (can be rejected by ⅔ of the Senate)

3. Who are his Congressional Contacts?
Speaker of the House?
Senate Majority Leader?
Minority Party Leadership?

4. Most important position in the House of Representatives
Speaker of the House
Most important position in the House of Representatives
Paul Ryan is currently serving as Speaker of the House

5. Senate Majority Leadership
Most important position in the Senate
Mitch McConnell is currently serving as the Senate Majority Leader

6. Minority Party Leadership
Democrats are in the minority so Nancy Pelosi and Chuck Schumer are the minority leaders .

7. Obama + Congress = Obstruction

8. President Trump on former President Obama
"Obama goes around signing executive orders," Trump said in February "He can't even get along with the Democrats. He goes around signing all these executive orders. It's a basic disaster. You can't do it."

9. Conclusions
Obama passed a moderate amount of executive orders compared to past presidents.
Executive orders can only impact existing laws (president can’t make new laws like a king)
Designed to help determine how an existing law should be enforced/carried out (i.e. immigration law)
Utilized by presidents who need to take action without waiting for Congressional support

10. What is an executive privilege?
•Executive privilege itself cannot be found in the U.S. Constitution
•Implied from the separation of powers in the Constitution
–Need to have frank discussion with advisors without fear of disclosure
–National security issues need to be protected by the office of the executive

11. Eisenhower
“Any man who testifies as to the advice he gave me won’t be working for me that night.”
Eisenhower was the first President to adopt the term “executive privilege”
He forbade his Cabinet members and other senior advisors from being questioned by McCarthy-Army hearings.
Eisenhower needed to protect sensitive documents from coming into public view and to allow his advisors to have frank discussions!

12. Nixon’s Watergate Scandal Clinton’s Monica Lewinsky Scandal
Executive Privilege
Formulate arguments for the executive, legislative, and judicial branch in the 3 cases listed on the handout.
For each case, answer these questions:
Why should the President have the right to withhold?
Why should the Legislature have the right to seek information?
Why should the Judiciary have the right to decide?
Nixon’s Watergate Scandal
Clinton’s Monica Lewinsky Scandal
George Bush 9/11 Commission

13. United States v. Nixon
The Supreme Court orders Nixon to provide the tapes!
The Court has the authority to interpret claims with respect to powers alleged to derive from enumerated powers….Neither the doctrine of separation of powers, nor the need for confidentiality of high level communications… can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances…. Absent a claim of need to protect military, diplomatic or sensitive national security secrets… the generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

14. United States v. Clinton
Federal District Court Judge Johnson ruled that conversations between a president and top aides can be shielded by executive privilege but that in this case Starr's investigatory need for the information outweighs the privilege.
Clinton dropped his appeal to the Supreme Court and agreed to allow his aides to testify.

15. 9/11 Commission v. Bush
In a letter in which the administration agreed to make Ms. Rice available for public testimony, Mr. Gonzales said the White House was making an ''extraordinary accommodation'' that ''does not set any precedent.'’
''Executive privilege is, in the end, a combination of law and politics,'' said Louis Fisher, a senior researcher at the Congressional Research Service. ''All presidents say they worry about the powers they hand over to their successors, but they also have to worry about their own credibility and the price they pay for what some people might perceive as a cover-up.''

16. Summary
Executive privilege and rule of law (everyone is equal under the law) are both important concepts for American democracy.
How should the courts determine which is more important when the exercise of executive privilege interferes with the rule of law?