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Watergate and Executive Privilege

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David Smailes

on 17 October 2018

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Transcript of Watergate and Executive Privilege

and Executive Privilege
What made the Nixon White House different?
In his book "The Imperial Presidency," Arthur Schlesinger refers to the Nixon Administration as a "Revolutionary" Presidency
1. Reorganization of the Executive Branch:
concentration of power into the hands of a few close advisors
White House staff shielded from Congressional oversight unless forced by subpoena
2. Shield POTUS from the public: limit press conferences to managed events, if at all
3. Control of Information - keep away from Congress and centered on White House
4. Move toward the "plebiscitary" presidency:
president is elected by people
this gives president to do whatever the mandate requires
each election, in effect, bestows a "prerogative"
This leads to use of Plumbers/wiretaps/concern over political intelligence
In that sense, Watergate is arguable different from other political scandals:
does not involve money or sexual activity
involves a "manufactured mandate" - Catch 22
undermines constitutional checks through secrecy - definition of prerogative is altered
Impeachment articles against Nixon:

Article I: Obstruction of Justice (27-11 vote)
(focused on diversion of FBI investigation)

Article II: Abuse of Power (28-10 vote)
(included break in of Ellsberg's psychiatrist's office)

Article III: Contempt of Congress (21-17)
(failure to cooperate with House Judiciary Committee and turning over of tapes)
The fight to control the tapes was known as U.S. v. Nixon. The case centered on Nixon's claim that the tapes were covered by a claim of "executive privilege" that allowed him to keep them secret
As Rozell notes, "Executive Privilege" was long recognized as a necessary element of foreign policy and the need for diplomatic secrecy.
Early Presidents established the notion of executive privilege:

- Washington withholds information on the Jay Treaty, but only because House is investigating something the Senate has already examined as part of its treaty power
But where domestic policy is involved, the issue is more problematic:
Modern Presidency: Openness and responsibility to public
Privilege: need for secrecy and privacy
Nixon raised this issue in his reply to a subpoena from Congress for the tapes he had made. The case became known as US vs. Nixon.
Nixon argued executive privilege prevails over a subpoena for the tapes from Congress for two reasons:

1. There is a need for confidentiality for officials

2. Separation of powers means POTUS is independent of the other branches within its sphere of power and can't be subpoenaed as part of a judicial proceeding
The Court found neither argument justified an absolute privilege:
it noted that without a military or diplomatic claim, the need for secrecy is lessened and not diminished by a court's review
and it noted that an absolute separation of functions would upset a "workable government" - so a strict separation is not possible
With that, the majority argued the Court has to weigh:

POTUS's desire for Judicial interest
privacy and the public in preserving the
interest in maintaining VS rule of law and the
secrecy need to compel the
production of
evidence of crime
Burger argues that when we weigh the general privilege of confidentiality (and secrecy isn't involved - this isn't a foreign policy issue) versus the fair administration of criminal justice he finds:

the damage to confidentiality will be slight if Nixon is ordered to turn over the tapes
the damage to due process of law would be severe if the Court allows him to keep the tapes
The Court opinion acknowledged what it called a "presumptive privilege," but ultimately found the concern for due process outweighed that claim here
It's a fair question, then, to ask if the "system worked" in the case of Watergate
Clearly Congress asserted its authority to investigate the Executive branch, and for the first time since FDR the public saw Congress in the lead on Watergate
Legislatively Congress moved to check presidential power, chiefly through the War Powers Act in the case of foreign policy and campaign finance reform in domestic policy
Nixon's resignation led to a backlash against the Republican party in the 1974 midterm elections - and ultimately Ford's loss to Carter in 1976
In many ways the Carter administration was shaped by Watergate politics
symbolically (Inauguration, public addresses, austerity)
press relations (Burt Lance, hostages in Iran)
Democratic leadership in Congress
The Carter presidency, in the aftermath of Watergate and the public reaction (mostly negative) to Ford's pardon of Richard Nixon, sought to symbolize a change in how the presidency would be conducted
H.R. Haldeman
John Ehrlichman
Eight Steps to Impeachment and Removal of the President
1. A resolution is introduced

A resolution (officially called an “inquiry of impeachment” is sent to the House Judiciary Committee

Members may also introduce bills of impeachment, which are referred to the House Judiciary Committee
2. Initial investigation and committee vote

After considering the evidence, the House Judiciary Committee votes on the resolutions or bills of impeachment

A majority vote from the Committee indicates its belief that there is sufficient evidence for an impeachment vote by the whole House
3. The House of Representatives votes

If the articles of impeachment are recommended by the Committee, the entire House votes to approve or disapprove a Judiciary Committee decision to conduct full-blown impeachment hearings
4. Hearings on evidence in House Judiciary Committee

Extensive evidentiary hearings are held by the House Judiciary Committee concerning the allegations of wrongdoing.
Witnesses are called, the scope of the inquiry is determined.

(It was at this point that the House subpoenaed the tapes from President Nixon)

5. The House Judiciary Committee votes
The Committee votes on formal articles of impeachment.
A simple majority vote is enough
A report (along with a minority or dissenting report) is also sent to the whole House and becomes the basis for considering further articles of impeachment
6. The House of Representatives votes to impeach

The full House votes on each article of impeachment

A simple majority vote on any article is enough to send that article to the Senate for consideration
7. Trial in the Senate

A trial is conducted on the floor of the Senate
with the House Judiciary Committee bringing the case against POTUS (who is represented by private attorneys).

The Senate acts as jury, with the Chief Justice presiding
8. Senate Votes on removal

Full Senate votes on each article of impeachment.

If 2/3rds of Senators agree to any article, POTUS is removed from office and the VPOTUS takes on duties of presidency.
Article II, Section Four:

"The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Article II, Section Two:
"...and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
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