Executive privilege redux: it's a tricky business

THE latest skirmish over executive privilege has ended in a curious way. The Senate Judiciary Committee gained access to the Rehnquist memorandums, but on terms that enabled the Department of Justice to dictate uses of the documents. In any event, the papers apparently contained no smoking guns to impede Mr. Rehnquist's confirmation. But if the material was of 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. President Reagan'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 firm precedent, and thereby ensure their control over his administration's papers beginning in 1989.

The documents in question involve Assistant Attorney General Rehnquist's 1970-71 memorandums that supposedly authorized wiretapping and surveillance of antiwar agitators, basing those views on inherent presidential powers. In some quarters, the documents are imagined to be far more sinister, as they have purportedly 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 could hardly shock us at this point. It is also 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.

It appears that Justice Rehnquist hardly needed the President's intervention. But Mr. Nixon did -- and in all probability, so did Mr. Reagan's aides who might well be embarrassed by future disclosures of some of their more whimsical or chilling views of power.

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 antedated Watergate.

The Presidential Recordings and Material 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 intervened and prevented application of the rules governing the release and use of his papers.

The Reagan administration recently extended a new weapon to the former President. Last February, the Office of Legal Counsel in the Department of Justice -- Rehnquist's old stamping 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 owed the courtesy to their predecessors. In other words, a not-so-subtle message to Reagan's successors.

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 memorandums would have a chilling effect on all future ``confidential'' advice, as 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 is difficult to determine. When there is a conflict over current needs on both sides, United States v. Nixon provided one answer.

Time must toll some limitations. The Rehnquist memorandums were written 15 years and three administrations ago. In a November 1984 executive order, Reagan assured Congress he would assert executive privilege only ``in the most compelling circumstances.'' Sen. Paul Simon thought there was ``no compelling reason'' for withholding the Rehnquist papers. True enough, if we assume that 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. 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 generals, said in 1973 that there were none. Executive privilege, he asserted, is whatever the President decides -- and if Congress didn't like it, then they might impeach him. Judiciary Committee chairman J. Strom Thurmond sustained Mr. Kleindienst's point. 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. Extravagant executive-privilege doctrines are alive and well in Washington.

Recording history is a selective process. Indeed, history is often a history of ``things left out.'' But that choice is best left to later generations, not the principals. Stalin wrote his history by expunging Trotsky's. We like to think that in this open society, historical records are fair game. As he marks the anniversary of his resignation, Mr. Nixon might have reason to fear that prospect. If so, then President Reagan has given him welcome breathing room. The President meanwhile has provided well for his own future.

Stanley I. Kutler is a professor of history at the University of Wisconsin and is writing a book on Watergate.