This paper is about presidential powers and executive privilege. You are expected to synthesize the readings from O’Brien and the cases from the book to advance support or opposition for the following scenario. You will not need any outside research. A good answer will recognize the president’s powers in foreign affairs, trade, war, as well as international diplomacy. I realize that you will be using jurisprudence from cases and presidencies more than 200 years AFTER the actions in question. Do your best to support or oppose executive privilege using contemporary understandings of the presidency. Remember, your decision will stand not just for George Washington but for presidencies long after Trump.
[1]After the conclusion of the Revolution the situation between the United States and Great Britain remained difficult. The British were blocking American exports using high tariffs and trade restrictions but British exported goods were flooding the U.S. markets. In addition, the British were seizing neutral American ships that were headed to France who was engaged in a war with the British (long story not relevant).
In 1794 Secretary of Treasury Alexander Hamilton convinced President George Washington to negotiate an executive agreement (which is POLITICALLY binding unlike a TREATY which is LEGALLY binding ) with Great Britain. During the closed door and secret meetings the President recorded information on his Presidential (not personal) iPhone and took extensive notes. Secretary Hamilton was in the room where it happened and took extensive notes of the proceedings.
Congress opposed the agreement claiming it did little to fix the problems identified above granting too many concessions to Britain and not enough for the U.S. Moreover, opponents feared it would anger the French by positioning the US neutrality in their war with Britain and thus risking war with France. The citizens of the United States held hearings in town halls to oppose the executive agreement as well.
An executive agreement is less formal than a treaty and is not subject to the constitutional requirement for ratification by two-thirds of the U.S. Senate. While the Constitution does not specifically authorize executive agreements, Congress may authorize its use, or the President may do so on the basis of the power granted under foreign relations power. In the 1937 case of United States v. Belmont (Links to an external site.) the Supreme Court ruled that executive agreements have the same force as treaties. The president transmitted the text of the executive agreement to Congress on the 59th day of the required limit of 60 days of its entry into to force, pursuant to a 2005 amendment to the Case-Zablocki Act (codified at 1 U.S.C. §112b), as implemented by 22 CFR Part 181.
It was later learned the President could benefit financially from the deal even if the American public would not. As a result of all the turmoil, the House demanded President Washington provide them with tax returns and copies of the notes and recordings of the negotiations so they could make the determination of whether they should fund the terms of the executive agreement. Hamilton advised the president not hand over the notes because it would be a “dangerous precedent” that would violate the proper separation of powers within the government and urged President Washington not to comply; moreover he suggested the President could invoke executive privilege and refuse to hand over the notes.
Do you agree with Hamilton? Why or why not? You should begin with a discussion of the powers of the president as the sole organ of the US, and when the president is at the highest authority in times of international diplomacy, trade and war. Next discuss the President’s powers to keep secret documents secret. In your conclusion be sure to include a brief discussion of how your answer might affect current and future presidential attempts to invoke executive privilege to keep documents from the light of day.
[1] The following are alternative facts to a Treaty the US entered in 1795 recreated to make answering your essay easier. Technology has been retrofitted to allow recording devices on the president in the 18th century.

Sample Solution

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