Rehnquist: No Documents, No Senate Confirmation

More than a decade ago President Richard M. Nixon invoked executive privilege in a desperate effort to prevent a special prosecutor from exposing the conspiracy and cover-up of Watergate.

The Supreme Court rejected that claim. It recognized the need for the courts and the special prosecutor to have access to information to fulfill their separate constitutional responsibilities. The attempt to hide behind executive privilege was blocked, and the Watergate cover-up was revealed. Other federal courts have similarly rejected repeated presidential attempts to invoke executive privilege to prevent legitimate disclosure in civil proceedings and in congressional hearings.

Today Congress is faced with another attempt to invoke executive privilege--this time to prevent the Senate Judiciary Committee from obtaining information plainly relevant to the qualifications of William H. Rehnquist to become the chief justice of the United States.

Ironically, as assistant attorney general from 1969 to 1971, Rehnquist was advising President Nixon and the Justice Department on numerous legal issues at the very time the government was engaging in the improprieties that spawned the Watergate scandal and later drove Nixon from office.

Now the Justice Department is in possession of documents that will reveal the extent, if any, of Rehnquist’s role on the eve of those traumatic times, as well as on matters directly relevant to testimony that he has already given to the Judiciary Committee. To withhold that information is to engage in yet another cover-up that the Senate cannot accept and still be faithful to its constitutional responsibility in the confirmation process.

The committee has asked for material prepared or received by Rehnquist as head of the Justice Department’s office of legal counsel and related to several key areas, including domestic surveillance by the military, wiretapping of journalists, mass arrests in connection with anti-war demonstrations, reform of the classification system, the investigation of security leaks and his role in the confirmation of judges.

Rehnquist’s testimony and published reports link him to each of these matters.

In response to questions by Sen. Robert C. Byrd (D-W.Va.), for example, Rehnquist has testified at his confirmation hearing that he may have written opinions or given advice on wiretapping, domestic surveillance, leaks of classified information and the classification system in general.

Rehnquist is mentioned in John D. Ehrlichman’s book on Watergate, “Witness to Power,” as expertly handling issues that mixed law and politics, with a sensitivity to the “President’s objectives and to the practicalities of our situation.”

In 1969 Rehnquist is known to have advised the governors of legal requirements for the use of federal troops in a riot. This must have been a factor in the presence of the National Guard at Kent State University, in Ohio, on May 4, 1970.

In May, 1973, when Elliot L. Richardson was testifying at the confirmation hearings for his appointment to be attorney general, he produced a typed copy of notes of his conversation with White House aide Egil Krogh. Richardson’s notes reflected that Krogh had asked for advice on the best way to disclose the activities of the so-called plumbers. According to the notes, Krogh mentioned Rehnquist in connection with a “security classification system.”

In “Decision,” a book about Nixon’s nomination of G. Harrold Carswell to the Supreme Court, Richard Harris describes Rehnquist’s direct involvement in the preparation of a letter praising Carswell, which was signed by a black civil-rights lawyer, Charles F. Wilson. At a press conference in the spring of 1969, Asst. Atty. Gen. Rehnquist “described how he had visited Wilson at his home to discuss the matter and had drafted the letter himself,” thereby contradicting Atty. Gen. Richard G. Kleindienst, who had said that the department had nothing to do with the letter.

The Justice Department claims that the disclosure of these documents would keep the department from recruiting able attorneys in the future and impair candid discussion of controversial issues within the executive branch. This is a clear abuse of the doctrine of executive privilege.

Sen. Sam J. Ervin Jr. was right when he convinced the Senate Judiciary Committee a dozen years ago that no President may fairly demand confirmation of his nominee while refusing to divulge the information that senators reasonably may deem necessary to perform their constitutional role in the confirmation process.

The nomination of Kleindienst as attorney general (ultimately approved) was held up until President Nixon relented and permitted a White House aide to testify on particular Justice Department affairs. The confirmation of Patrick Gray as FBI director was derailed, and ultimately withdrawn, when President Nixon refused to allow aides to testify about alleged abuses of FBI memorandums.

The Senate Judiciary Committee should do the same today: no documents, no confirmation.