The recent skirmish over executive privilege during Chief Justice William Rehnquist’s nomination hearings ended in a curious way. The Senate Judiciary Committee gained access to the Rehnquist memoranda, depicting his role in the Army’s civilian surveillance program during the Nixon Administration, but on terms that enabled the Department of Justice to dictate the uses of the documents. In any event, the papers provided no smoking guns to thwart Rehnquist’s confirmation. But since the material had so little value, then why did the Reagan Administration roll out the heavy artillery of executive privilege?
Invoking executive privilege in this case had very little to do with William Rehnquist or his chances for elevation to the chief justiceship. Much more was at stake. The President’s action instead demonstrated once more his resolve to protect Richard Nixon’s right to exercise executive privilege—and hence control—over the release of his papers and tapes. Beyond that, the President and his aides undoubtedly hope they have established a viable precedent, and thereby insure their control over his administration’s papers beginning in 1989.
The documents in question involved Assistant Attorney General Rehnquist’s 1970–71 memoranda that supposedly authorized widespread wiretapping and surveillance of antiwar agitators, basing those views on inherent presidential powers. In some quarters, the documents were imagined to be far more sinister, as they are purported to have advised and approved illegal activities by the Nixon Administration.
The then-current Department of Justice notions of the scope of inherent powers are quite familiar and hardly could shock us at this point. It also is reasonable to believe that Rehnquist provided the necessary legal and constitutional rationalizations. However ideologically obnoxious those views may be to some, they represented ones that had (and still have) substantial political and public support.
Rehnquist hardly needed the President’s intervention. But Richard Nixon does—and possibly, so too President Reagan’s aides who might well be embarrassed by future disclosures of some of their more whimsical and/or chilling views of power. Colonel Oliver North’s activities, for example, might make the then once-born Charles Colson look like an Eagle Scout.
Former President Nixon, undoubtedly enjoying his newly conferred status of “rehabilitated,” would not now want his image sullied by unpleasant reminders of abuses or questionable uses of power, particularly ones that antedate Watergate. For twelve years, Nixon, his staff, his lawyers, and his former aides, have stonewalled all attempts to open his papers. The Presidential Recordings and Materials Preservation Act of 1974 mandated that the National Archives “provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic name ‘Watergate’.” The Archives’ staff has done its work. But Nixon and his aides repeatedly have intervened and have prevented implementation of the rules governing the release and use of his papers.
The Reagan Administration extended a new, formidable weapon to the former president in February 1986. The Office of Legal Counsel in the Department of Justice—Rehnquist’s old stomping grounds—”ruled” that the Archivist of the United States must honor any Nixon attempt to invoke executive privilege. That opinion addressed itself to the history (rather distorted) of the privilege, and in a bit of lawmaking of its own, asserted that incumbent presidents owe the courtesy to their predecessors. In other words, a not-so-subtle message to President Reagan’s successors—and another ingenious scheme for privatizing public papers.
The ostensible reason for exercising executive privilege in the Rehnquist case was to preserve the “confidentiality” of advice to the President. A slippery matter indeed. Are we to believe that the release of Rehnquist’s memoranda would have a chilling effect on all future “confidential” advice, as President Reagan has argued? Presidents do need confidential advice, but the precise location of the difference between confidentiality and the right of other branches of the government to know about that advice in order to inform their own actions, is difficult to deter mine. When there is a conflict over current needs on both sides, United States v. Nixon provides one answer.
Time must toll some limitations. The Rehnquist memoranda were written fifteen years and three administrations ago. In a November 1984 executive order, President Reagan assured Congress that he would assert executive privilege only “in the most compelling circumstances.” Senator Paul Simon thought there was “no compelling reason” for withholding the Rehnquist documents. True enough, if we assume that Justice Rehnquist is the principal in this matter. But once again, it is Richard Nixon, like the Ancient Mariner (as Ronald Steele has written), who is tugging at our sleeve. President Reagan and his aides meanwhile must have smiles to match the Cheshire Cat’s. Why miss an opportunity to establish such a useful precedent?
And what of the boundaries for asserting executive privilege? Richard Kleindienst, one of Nixon’s four Attorneys General, said in 1973 that there were none. Executive privilege, he asserted, is whatever the President decides—and if Congress doesn’t like it, well, then they just might impeach him. Judiciary Committee Chairman J. Strom Thurmond sustained Kleindienst’s point during the Rehnquist hearings. The Administration has “a right to exercise privilege,” he said, when the Justice Department refused at first to release the Rehnquist documents. “So far as I’m concerned that ends it.” If Nixon has been rehabilitated, his Watergate baggage may not be far behind. Certainly, extravagant executive privilege doctrines once again are alive and well in Washington.
Time will tell how many new assertions of executive privilege we will confront. Months after Rehnquist’s confirmation, the Reagan Administration faces a growing scandal of its own. Just when Richard Nixon, and his fellow revisionists, in both the media and the historical profession, almost succeeded in inducing national amnesia regarding Watergate, we find Watergate resonat ing all around us. History doesn’t repeat itself (to invoke a canon), but the media (never really known for its striking originality) cannot resist winning lines. “What did the President know, and when did he know it”? “Follow the money.” ls this a “limited hangout route”? Before long, someone will discover eighteen-and-a-half pages of shredded documents. Watergate, it seems, has never been too far below the national consciousness.
Ironically, charges of scandal in the Reagan Administration just might be the lever for prying open the Nixon Papers. Nixon’s lawyers chose not to challenge the release of the first segment of the former President’s papers on December 1, 1986. The first release contains papers of traditional administration history—no “bombshells,” in other words, and that consideration undoubtedly dictated the lawyers’ strategy. But the growing controversy over the Iran weapons sale make the appearances of propriety ever more crucial. In that charged atmosphere, the Reagan Administration might well have to sacrifice the historical reputations of Richard Nixon and his minions. But then again, what of their own? If the Reagan Administration does not honor Nixon’s claims to executive privilege and his right to control his administrations’ archives, then it mortgages its own future to open access to researchers and historians.
Recording history is a selective process. Indeed, history often is a history of “things left out.” But that choice is best left to later generations, not to the principals themselves. Stalin wrote his history by expunging Trotsky’s. We like to think that in this open society, historical records are fair game. Mr. Nixon cer tainly has reason to fear such a prospect. And that fear apparently has not been far from the minds of President Reagan and his aides.
Stanley I. Kutler is the E. Gordon Fox Professor of American Institutions at the University of Wisconsin. He is the author of The American Inquisition, and currently is writing a history of Watergate. This piece is adapted from earlier versions that have appeared in the Wall Street Journal, April 1, 1986 and the Christian Science Monitor, September 22, 1986.
