Executive Privilege — Real and Perceived

Graphic by Carol Porter for The Washington Post
Lesson 
All U.S. presidents have exercised executive privilege. George Washington refused to give documents to legislators, Dwight Eisenhower named it and Richard Nixon invoked it when asked to provide White House documents and secret tapes. We focus on the Watergate Story, 40 years after the resignation of the president, to examine executive privilege, the balance of power, the duty of federal employees and the responsibility of the press to inform, investigate and watch those in power.
Difficulty 
Additional Disciplines 
Download Classroom Worksheets (PDF) 

George Washington refused to share documents related to a military expedition against Native Americans. Congress had demanded White House records and testimony from his staff. Washington met with his Cabinet and together they agreed the president had the authority to refuse Congress — in the public interest. So began the use of executive privilege.

 

Every president, in some form, has invoked executive privilege. President Dwight Eisenhower being the first to use the term.

 

At the 40th anniversary of the resignation of President Richard M. Nixon, it is suitable that executive privilege be studied. His refusal to give the Senate Watergate Committee access to White House documents and all secret tapes, invoking executive privilege, led to the Supreme Court case U.S. v. Nixon. The Court supported executive privilege as a presidential power, but not an absolute one.

 

Washington Post resources and suggested activities for a study of the Watergate Story, from break-in to resignation are included in this guide. As well as executive privilege, this is the story of a balance of powers, investigative reporting and media as watch dog, constitutional duties and First Amendment rights.


September 2014

Executive Privilege and Power
Resource Graphic 

Develop Vocabulary
Journalism, Reading, U.S. Government
The terms found in In the Know are directly related to Article II of the United States Constitution, presidential duties and privileges, and to aspects of government. Students should be encouraged to learn the definitions. Many of the activities in this curriculum guide present opportunities to use the terms in class discussion and in written responses.


Explore Presidential Power
Journalism, U.S. Government, U.S. History
Textbooks devote chapters to presidential power. Before reviewing your textbook, use a primary document — The Constitution of the United States. Read and discuss Article II.
1. What are the eligibility requirements of someone who will be President?
2. What are the stated powers and responsibilities of the President?

Discuss the significance of the duties of the president and executive branch, the separation of powers, and the responsiblities that provide authority. In what ways have the American public's expectations of the president remained unchanged? Give examples from different administrations.

 

Evaluate How Well Federal Officials Honor the Public Trust
Journalism, Media Arts, U.S. Government
U.S. federal employees are public servants. As stated by the U.S. Department of Justice Departmental Ethics Office, “This means that each Federal employee has a responsibility to the United States Government and its citizens to place loyalty to the Constitution, laws and ethical principles above private gain. The public deserves and should expect no less."

Review and discuss the “Fourteen Principles of Ethical Conduct for Federal Employees.”


Give students the e-Replica activity, “A Civil Duty | Media and Federal Officials Honoring the Public Trust.” Students will use different sources to answer questions about a selected federal employee. After compiling a background on the individual, students will use the e-Replica edition of The Post to search for current activities of the individual. Through this activity, students will consider principles of ethical conduct and oaths of office, utilize the press as a source of information and evaluate the media’s role as a watch dog of those who are to serve the public. 

 


   

 


Watergate and Its Legacy
Resource Graphic 

Examine Executive Privilege
U.S. Government, U.S. History

Having established the constitutional delineation of responsibilities of each branch of government and the basis for separation of powers, introduce the concept of “executive privilege.” 

 

President George Washington refused to provide all of the documents related to a disastrous military expedition against Native Americans in 1791, diplomatic correspondence between the U.S. and France in 1794, and negotiations surrounding the Jay Treaty of 1795. This is the precedent for what became known as executive privilege. Scholars believe President Dwight D. Eisenhower in 1954 was the first president to use the phrase “executive privilege.” He withheld documents more than 40 times.

 

Give students "What Is Executive Privilege?" This activity will provide students opportunities to research the historic use of executive privilege. In the last section, students will discuss recent uses of it as found in the pages of The Washington Post.

 

 

Review Executive Orders
Journalism, U.S. Government, U.S. History

Executive orders are official documents issued by the president (and governors) to direct actions by the federal bureaucracy. With these “the President of the United States manages the operations of the Federal Government,” according to the National Archives. They are numbered consecutively. After each executive order is signed by the president and received by the Office of the Federal Register, the text is published in the Federal Register, the official newspaper of the U.S. government that is published every business day by the NARA and Government Printing Office (GPO) in three formats — print, microfiche and digital. 


The National Archives maintains a disposition table of executive orders, beginning with those of President Franklin D. Roosevelt. Starting with the Clinton administration in 1993 online text can be accessed in PDF format and by subject. Students could go to the National Archives website to determine which presidents issued the most executive orders. Do the years in which the most executive orders were issued reflect significant historic, economic or social events?


Review the Clinton, Bush and Obama administration executive orders by subject. This could include:
• In which year did each administration issue the most executive orders?
• How many executive orders were issued regarding education, environment and health during their terms?
• Select a country for which executive order(s) were issued. On what does the executive order focus? What is the historic context for the order? Do a search of the archives of The Washington Post. Did The Post cover the order, its impact?

Read About Richard Nixon & the Presidency

Remember Watergate
Journalism, Media Arts, U.S. Government, U.S. History

For students, Watergate is history. For teachers, Watergate is what claimed hours of TV time one summer in the 70s, was a significant moment in U.S. history or is the subject of one of their favorite Robert Redford movies. In 2012 at the 40th anniversary of the arrest of a team of burglars and the beginning of the Watergate story, The Washington Post pulled together a series of articles, videos, timelines, profiles, editorial cartoons and reflections. Teachers might review these to determine what they will use with their students.

 

The narrative of The Watergate Story will give you the basics. Review the Watergate story by reading “The Post Investigates” and listening to videos.

 

Bob Woodward and Carl Bernstein are the primary reporters to cover the Watergate story for The Washington Post, and for some time the nation. It began with a police beat story, a break-in of the offices of the Democratic National Committee in the Watergate office complex. Read The Watergate Story again, taking time to read The Post’s coverage. As you continue through The Post’s pursuit of the fuller story (Parts 2, 3 and 4), you will find articles written by Alfred E. Lewis, Lawrence Meyer, Laurence Stern, George Lardner Jr, Haynes Johnson, Jules Witcover and Carroll Kilpatrick as well as Bob Woodward and Carl Bernstein. Discussion might include:
• What beats do the writers cover? What does the variety of beats reflect about the story?
• As coverage is unfolding, how do reporters handle previously reported information?
• Who are the sources that are named? What type of information do they provide?
• Who was Mark Felt? Why was his identity withheld? Why was this confidential source believed by Bob Woodward?
• What is the significance of anonymous sources as reflected in the articles? Does the First Amendment protect the use of anonymous sources?
• Explain the part played by different components of the Federal Government?
• Who do students find to be the most intriguing of Nixon administration officials involved in the Watergate investigation? 
• What insights can be gained from supplemental documents included in each part of The Watergate Story? 

 

To move through the Watergate story in chronological order, visit Post Coverage. Before the Fall: 1968-1972 begins with the 1968 presidential election. Post Coverage, without the narrative of The Watergate Story, provides links to comprehensive resources, including news articles, commentary, edtiorial cartoons and other related documents.

 

Teachers are provided “Listen in on Interview.” Six sources of interviews with eyewitnesses and involved parties are given as a starting point for classroom discussion or student research.

 

Listen to “Watergate Forty Years After the Scandal.” Give students the activity sheet of the same title. After discussing the quotations and students’ responses to the questions, they could be assigned to role play one of the key characters or journalists. They could read All the President’s Men as well as The Washington Post’s Watergate Story material and listen to interviews to gain an understanding of their persona, actions and motivation.

If you want to understand the process of covering the story and meet young Washington Post reporters Carl Bernstein and Bob Woodward — read All the President’s Men. Be sure to distinguish details in the book from the movie. 


Take a Virtual Tour
Geography, Journalism, U.S. Government
All the President’s Men Virtual Tour” takes students to places found in All the President’s Men. Teachers might have students locate them on a map and plan the order of a tour. How have each of these places changed since 1972?

 

Consider All the President’s Men
Journalism, U.S. Government, U.S. History
After reading All the President’s Men, give students “Who Are All the President’s Men?” This activity considers different aspects of the nonfiction work: the individuals involved in the story, the title, oaths of office, media’s responsibility to be accurate and media as watchdog.

 

 

Recall Herblock’s Editorial Cartoons
Art, Journalism, Media Arts, U.S. Government, U.S. History
Herb Block was the official editorial cartoonist of The Washington Post for more than 50 years. Acquaint students with his work through the cartoons included in this curriculum guide.
• Give students “May 27, 1973 | National Security Blanket.”  Wide margins are provided if teachers want students to locate each of the seven details included in the cartoon.
• “Visual Commentary, 1972-1974” provides four editorial cartoons. In addition to the cartoons, teachers are provided with five questions for each cartoon for a closer “reading” of the images. Answers to the questions are included for teachers’ convenience.

 

Review the sidebar and Additional Resources for more Herblock cartoons.

 

Find the Relevance of Watergate
Journalism, News Literacy, U.S. Government, U.S. History
Ask students how major news stories are covered today. Do they get their local, national and international news from Twitter, radio, television, online news or another source? Which do they consider the most valid sources of information? To what extent does it depend on the event? The location? The people involved?

 

Give students the commentary, “The continuing relevance of Watergate.” Washington Post editorial writer Ruth Marcus reflects on the events that lead to the resignation of Richard M. Nixon forty years ago and how the story might be covered today. Discuss the ideas presented by those Marcus quotes and by Marcus.

 

Investigate Investigative Reporting
Journalism, Media Literacy
In 2012, Washington Post vice president at large Len Downie Jr. reflected on the role of investigative reporting before and after Watergate. Investigation is a collaborative and defining effort as he indicates “several months after the Watergate burglary in 1972, Woodward, Bernstein and their colleagues on the local news staff of The Post were alone on the story. We were ignored and doubted by the rest of the news media and most of the country … We worried over every word of every story before putting it in the paper.”

 

Give students “Is Investigative Reporting Alive in Today’s Media?” after reading “Forty years after Watergate, investigative journalism is at risk.” 


Resource Graphic 
In The Know 

Advice and Consent   

Under the Constitution, presidential nominations for executive and judicial posts take effect only when confirmed by the Senate, and international treaties become effective only when the Senate approves them by a two-thirds vote

Checks and Balances

Ways in which one branch of government influences and limits the action of another branch of government; no branch should dominate the other

Constitutional

Related to the system of beliefs and laws that govern a country; allowed by a country’s constitution

Direct orders

Technique of Congress to establish federal regulations. They must be complied with under threat of criminal or civil sanction.

Executive agreement

Formal agreement between the U.S. president and the leaders of other nations that does not require Senate approval

Executive communication A message sent to the Senate by the president or other executive branch official. Presidential veto messages are an example of an “executive communication.”
Executive orders

Formal directives issued by the president (and governors) to direct action by the federal bureaucracy; has the force of law

Executive privilege Power claimed by the President of the United States and others in the executive branch; the right to keep executive communications confidential, especially if they relate to national security
Inpeachment Formal accusation against a president or other public official, the first step in removal from office
Implied powers

Powers inferred from those (express powers) the Constitution specifically grants to the branches of government

Pardon

Release a person from punishment, exempt from penalty; clemency; at the federal level, the president has the power to grant a pardon (Article II, Section 2, Clause 1). Derived from the British king’s royal prerogative, the right to forgive nearly all forms of crimes against the crown.

Presidential signature A proposed law passed by Congress must be presented to the president, who then has 10 days to approve or disapprove it. Normally, bills he neither signs nor vetoes with 10 days become law without his signature.
Separation of powers

Each branch of government — executive, legislative, judicial — has its own duties and responsibilities; related to the system of checks and balances; legislative branch makes law, the executive branch applies and enforces the law, the judiciary interprets the law

U.S. Constitution

Document establishing the framework of the American government

Veto

The procedure established under the Constitution by which the president refuses to approve a bill or joint resolution, preventing its enactment into law. The president usually returns the vetoed bill to the house in which it originated with a message indicating his reasons for rejecting the measure. The veto can be overridden only by a two-thirds vote in both the Senate and the House.

 

Sources: www.senate.gov glossary, AP Government terms, Merriam Webster Dictionary

Article II of the Constitution of the United States 

ANSWERS. 1. Eligibility Requirements to be President of the United States
To be eligible to run for president, one must be a citizen of the United States, be 35 years old and been a resident with the U.S. for 14 years.


ANSWERS. 2. Constitutional Stated Powers and Responsibilities
A. Commander in Chief of the Army and Navy of the United States and of the Militia of the several States, when called into the actual Service of the United States
B. May require the Opinion, in writing, of the principal Officer in each of the executive Departments
C. Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment
D. Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur
E. By and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, who Appointments are not herein otherwise provided for, and which shall be established by Law
F. Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session
G. Give to the Congress Information of the State of the Union
H. Recommend to their Consideration such Measures as he shall judge necessary and expedient
I. On extraordinary Occasions, convene both Houses, or either of them
J. In Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;
K. Receive Ambassadors and other public Ministers
L. Take Care that the Laws be faithfully executed
M. Shall Commission all the Officers of the United States.

 

 

ANSWERS. Herblock | May 27, 1973
1. a. A symbol of the U.S., its government and constitution
b. Both the break-in at the Watergate complex and other disreputable deeds
c. Donald Segretti, former military prosecutor and operative for the Committee for the Re-election of the President, plead guilty to three misdemeanor counts of distributing illegal campaign literature, including a letter written on the stationery of Democratic presidential nominee, Sen. Edmund Muskie.
d. The eyebrows and "ski" nose were Herblock’s exaggeration of Nixon’s features. It is the president hiding behind the flag, including his invocation of executive privilege.
e. When originally formed the plumbers, headed by John Erlichman, were ordered to plug leaks related to the Pentagon papers. The evening break-in of the Watergate offices of the Democratic National Committee by the White House “plumbers” is the reference in this cartoon. Jeb Stuart Magruder,  E. Howard Hunt and G. Gordon Liddy were “plumbers.”
f. Funding for the “dirty tricks” of the plumbers was obtained by laundering money through Mexico.
g. The tapes of conversations and phone calls in the White House were an essential component of the Watergate investigation.

2. Answers will vary. Nixon was a subject of Herblock’s political cartoons from the 1940s (“dirty tricks” in his campaign for Congress), through the 1950s (anti-communist activities) to 1974 (Nixon’s resignation). Herb Block stated in the forward of Herblock Special Report that his cartoons of Nixon were “ … not liking what he did.”

 

ANSWERS. Is Investigative Reporting Alive in Today’s Media?

1. The “counter-culture” atmosphere of the 60’s spurred on by the civil rights movement and Vietnam War protests. The 1964 Supreme Court decision in New York Times v. Sullivan which made it more difficult for public officials being scrutinized to sue for libel, and the Freedom of Information Act, passed by Congress in 1966, which made it easier for reporters to find vital information.

2. Become an expert on your subject, knock on doors to talk to people in person, protect the confidentiality of sources, never rely on a single source, find documents, follow the money, collect details until a pattern emerges.

3. It requires a greater investment in time and resources for reporters to dig deeper into the details and background of a story.

4. Cuts in newsroom staff due to a decline in revenue for newspapers, and flood of information and sources available through the Internet.

5. Also, due to the Internet, it is easier to find information and sources.

6. Answers will vary.


District of Columbia Public Schools Academic Content Standards 

U.S. Government. Students explain the fundamental principles and moral values of the American Republic as expressed in the U.S. Constitution and other essential documents of American democracy (12.1)
5. Describe the systems of separated and shared powers, the role of organized interests, checks and balances, the importance of an independent judiciary, enumerated powers, rule of law, federalism and civilian control of the military (Principles of U.S. Government)

 

U.S. Government. Students analyze the unique roles and responsibilities of the three branches of government as established by the U.S. Constitution (12.3)
4. Discuss Article II of the Constitution as it relates to the executive branch, including eligibility for office and length of term, election to and removal from office, the oath of office, and the enumerated executive powers (Branches of Government)

 

Learning Standards for DCPS are found online at http://dcps.dc.gov/DCPS/In+the+Classroom/What+Students+Are+Learning

Maryland Academic Content Standards 

Political Science. Investigate the evolution of the U.S. political system as expressed in the United States Constitution
b. Explain and summarize the principles of federalism, popular sovereignty, rule of law, consent of the governed, separation of powers, checks and balances, majority rule, limited government and how they protect individual rights and impact the functioning of government (Standard 1.0)


Academic content standards may be found at http://mdk12.org/assessments/vsc/.

Virginia Academic Content Standards 

U.S. Government. The student will demonstrate knowledge of the Constitution of the United States by
c) examining the fundamental principles upon which the Constitution of the United States is based, including the rule of law, consent of the governed, limited government, separation of powers, and federalism
d) illustrating the structure of the national government outlines in Article I, Article II, and Article III. (GOVT. 4)

 

U.S. Government. The student will demonstrate knowledge of the organization and powers of the national government by
a) examining the legislative, executive, and judicial branches;
b) analyzing the relationships among the three branches in a system of checks and balances; (GOVT. 7)

 

Standards of Learning currently in effect for Virginia Public Schools can be found online at www.doe.virginia.gov/testing/sol/standards_docs/index.shtml

Common Core Standards 

Literacy in History/Social Studies, Science & Technical Subjects. Integrate information from diverse sources, both primary and secondary, into a coherent understanding of an idea or event, noting discrepancies among sources. (Integration of Knowledge and Ideas, CCSS.ELA-Literacy.RH.11-12.9)

 

Literacy in History/Social Studies, Science & Technical Subjects. Determine the meaning of words and phrases as they are used in a text, including analyzing how an author uses and refines the meaning of a key term over the course of a text. (Craft and Structure, CCSS.ELA-Literacy.RH.11-12.4)

 

English Language Arts Standards, Writing. Draw evidence from literary or informational texts to support analysis, reflection, and research. (Research to Build and Present Knowledge, CCSS.ELA-Literacy.W.11-12.9)

 

English Language Arts Standards, Writing. Apply grades 11-12 Reading standards to literary nonfiction (e.g., “Delineate and evaluate the reasoning in seminal U.S. texts, including the application of constitutional principles and use of legal reasoning [e.g., in U.S. Supreme Court Case majority opinions and dissents] and the premises, purposes and arguments in works of public advocacy [e.g., The Federalist, presidential address]”). (SSCC.ELA-Literacy.W.11-12.9B)

 

Common Core standards are found online at http://www.corestandards.org/