John W. Dean, White House Counsel to Richard M. Nixon During His Presidency, And Author of "The Rehnquist Choice"

A BUZZFLASH INTERVIEW
First of Two Parts | Part 2

Introduction

BuzzFlash found John Dean's legal and political commentary in findlaw.com, salon.com and other publications incisive, trenchant and compelling. Forever known as the man who "warned" Nixon of the "cancer on his presidency" (i.e, Watergate), Dean has emerged as one of the most articulate analysts warning of the threats to our Constitutional and civil rights that we face under the Bush administration and the right wing direction of the federal bench and Supreme Court.

Approximately 30 years ago, Dean played a key role in the appointment of William Rehnquist to the Supreme Court. At that time, as a dutiful White House Counsel, he earnestly wanted to assist the President of the United States in finding a conservative candidate for the Court. Last year, partly as an act of penance, he wrote this fascinating account of Rehnquist's appointment: "The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court" (available from BuzzFlash.com by clicking here).

"The Rehnquist Choice" is a riveting recounting of the events that led up to the fateful naming of the now current Chief Justice of the Supreme Court to SCOTUS. Dean makes extensive use, due to the infamous Nixon taping of conversations, of actual confidential dialogue between Nixon and his staff. This is not an Oliver Stone portrayal of Nixon, this is the real thing.

Nixon is revealed as an anti-Semite and bigot, who thought women shouldn't vote or go to college. One of the great ironies of "The Rehnquist Choice" is that Nixon was prepared to appoint the first woman to the Supreme Court because he thought he could get political mileage out of it, even though he doubted the intellectual capabilities of women. Nixon was even prepared to steamroll Chief Justice Warren Burger, who -- in one of the book's many revelations -- briefly submitted his resignation in protest over the pending nomination to the Supreme Court of a female California judge, which, as it happened, never came to pass.

The book opens with a detailed description of how John Mitchell conspired to keep Democratic appointed Justice Abe Fortas from being appointed Chief Justice, and, ultimately, to force him off the Court. In a foreshadowing of Republican Executive branch misuses of the Justice Department and FBI, Mitchell utilized Justice Department investigative powers and personnel to, in essence, slander Fortas and bully him and his supporters on the Hill.

"It is not an overstatement," Dean wrote, "to say that Rehnquist, working with Nixon's attorney general, John Mitchell, and others, misused the resources and powers of the Department of Justice, and other executive branch agencies, to literally unpack the Court by removing life-tenured justices they found philosophically or politically unacceptable."

BuzzFlash strongly recommends "The Rehnquist Choice" for those readers who want a gripping, fascinating insight into how a Republican White House operates. John Dean is to be commended for this detailed insight into Nixon's Supreme Court strategy.

Unfortunately, the Bush administration's efforts to pack the courts with right wing activist judges makes Nixon's efforts look moderate by comparison.

The following is our interview with John W. Dean, a man who was changed by his experiences in the Nixon White House. He is now one of the strongest advocates and voices for individual freedom, democracy, and respect for our Constitutional Rights.

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BUZZFLASH: You write, on page 261 of your book, "Only insiders would know that Rehnquist had never met a repressive law enforcement activity that he did not find legal." Can you amplify that a little?

JOHN W. DEAN: Right. That statement was provoked by my knowledge of Rehnquist when I was at the Department of Justice. John Mitchell was Attorney General, and he would request rulings regarding demonstrations, anti-war demonstrations. And Rehnquist would always give them what he needed to control and, if you will, suppress the demonstration. When the Justice Department was developing new criminal laws, like "no knock" entries and use of electronic surveillance, Rehnquist could be counted on to give it a constitutional okay.

When I went over to the White House, the same was always true there. In fact, in working on "The Rehnquist Choice," I happened to stumble across a couple of memos Rehnquist prepared that never surfaced during any of his confirmation proceedings. And they were very typical of the kind of response that Rehnquist would always give you, which would be exactly what you needed to support the government's position, regardless of how antediluvian it might be.

BUZZFLASH: Now you made the statement, on page 261, just after describing a plan by Bud Krogh to kidnap alleged drug dealers from foreign countries and try them in the United States, that Rehnquist had been asked to develop a legal rationale for this and had dutifully done so.

DEAN: I haven't been able to find the Department of Justice memos from the Rehnquist era in the National Archives. Apparently they never made it, so I'm somewhat hesitant to get into exactly what Bill said, because I'm just relying on a very distant memory on these kinds of details at this point. But those memos are certainly lurking around in government files, and they're going to surface someday.

BUZZFLASH: And that includes the Huston plan, which you referenced?

DEAN: The so-called Huston plan refers to the plan that Nixon tasked White House aide Tom Huston to come up with that removed virtually all restraints on domestic intelligence gathering. I don't think Rehnquist was ever involved in the Huston plan per se. I have no memory or knowledge of him being involved. I've often thought that had Nixon gone to Rehnquist -- but Rehnquist was, of course, on the Court by the time he might have wanted to do so -- to get a justification for the break-in into Daniel Ellsberg's psychiatrist's office, Bill Rehnquist might have been able to give an opinion that would justify that under some sort of national security theory. He always could find some precedent or sophistry to support whatever the government under Nixon thought it needed.

BUZZFLASH: Now you mention, in the beginning of the book -- in fact, on page one -- you make what was, to me, a startling statement -- that "William Rehnquist, who would be Nixon's most important appointment, was actively involved in the efforts to create vacancies in the Court while serving as an assistant attorney general. It is not an overstatement to say that Rehnquist, working with Nixon's attorney general, John Mitchell, and others, misused the resources and powers of the Department of Justice, and other executive branch agencies, to literally unpack the Court by removing life-tenured justices they found philosophically or politically unacceptable. It was all part of a strategy that commenced even before Nixon assumed office." Can you discuss that a bit more?

DEAN: Sure. I've actually got an FOIA request that I've just started working on to see if I can't flush up some of these memos. A professor from Stanford by the name of Alan Morrison did go after one of the memos and just recently received it. And I found it a very interesting memo. It was the one that Rehnquist wrote in the context of whether the Department of Justice could investigate a sitting Supreme Court justice, or was the only procedure to proceed through the normal impeachment route. I don't think Rehnquist personally researched it, but whoever researched it, obviously Rehnquist guided, for he signed his name to the memorandum. And I found the arguments to be totally unpersuasive; in fact, I found Rehnquist's position to be of really questionable legitimacy.

Yet he put a piece of paper in Mitchell's hands that justified the Justice Department doing what the Constitution says was supposed to be an action undertaken only by the Congress itself -- that was to investigate a sitting justice, with the possibility of removal of that person from the bench. What they did with (former Supreme Court Justice Abe) Fortas was just put a lot of pressure on him. And it was the Rehnquist memo that Mitchell was leaning on to undertake his Department of Justice investigation.

BUZZFLASH: And you describe on page seven of your book how Rehnquist sort of puts together the worst-case scenario of Fortas' behavior, without any of this being proven, in order to come to a conclusion that the Justice Department could proceed with activity aimed at investigating him.

DEAN: This information -- the one memo that Alan Morrison was able to get -- doesn't address all these issues. It merely deals with the very technical legal issue of whether the Department of Justice could investigate and proceed against a sitting Article III judge -- Article III being Article III of the Constitution, which creates the Judicial branch, and therefore, they're considered Constitutionally established judges. There are other judgeships that are created by acts of Congress, like the bankruptcy court Magistrates, for that matter, are created by acts of Congress. These are lesser than full Article III judges, and some of the rationale that Rehnquist relies on related to non-Article III judges and the powers against them. However, I don't have all these memos. I based this on material that was...

BUZZFLASH: ...by Robert Shogan?

DEAN: Right. The Shogan interview of Rehnquist in 1971, which was contemporaneous. So it was Rehnquist who brought this material to the Shogan attention. I'm hoping to flush up all the memos Rehnquist wrote on this subject with a FOIA request.

BUZZFLASH: And this was a book -- "A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court."

DEAN: Right.

BUZZFLASH: So we have, in essence, through Mitchell being an agent for President Nixon, that there is a concerted effort here to force Fortas off the Court. And Rehnquist is asked to write a document that gives a justification for the Justice Department investigating Justice Fortas at the time.

DEAN: Broadly speaking, that is correct. And it's corroborated also by John Ehrlichman's writings, where he made it very clear that he became privy to Nixon's plans to unpack the High Court when he was counsel to the President before I went over to the White House. Ehrlichman writes about how this was very much on Nixon's agenda -- to go after Fortas and also Justice William Douglas. Actually, he would have liked to remove any of the liberal justices. Those two, Fortas and Douglas, happened to be within his sights because he thought he had some information he could leverage against them. And indeed, with Fortas, he did.

BUZZFLASH: Now let's move into the primary subject of the book -- how William Rehnquist came to be nominated to the seat on the Supreme Court in 1971. Can you sort of set the scene? What was your position? You mentioned at some point you had also worked at the Justice Department with him. Rehnquist was an assistant attorney general. What were his responsibilities, and who are the main characters involved in the decision?

DEAN: I had been at the Department of Justice as the associate deputy attorney general during the nominations of (G. Harrold) Carswell and (Clement) Haynsworth, and actually (Warren) Burger, as well, who became Chief Justice. Haynsworth and Carswell, of course, would be rejected by the United States Senate. It was a bad experience for Nixon. By the time the next two vacancies occurred on the Court, I'm over at the White House. It was the fall of '71 when two vacancies arose with the departures of Justices (John) Harlan and (Hugo) Black. Being at the White House, I was much closer to the real decision-making process. My job was to make sure any nominees did not have any conflict of interest or other such problems, so I was asked to fly around the country vetting potential justices. I was not in the inner, inner circle, rather right outside it. In fact, the circle got very small on the decision to fill those two vacancies. The circle got so small that Nixon cut out everyone at the White House, for all practical purposes, and was working only with Attorney General John Mitchell.

When the Nixon tapes for this period of time, September and October of 1971, became available at the National Archives, I went back to listen to them. What I heard was a remarkable three-act play. Act by act, one potential nominee after the next comes, and then goes, and the drama builds as Nixon is clearly having a problem making a selection he can get confirmed. Bill Rehnquist was not even on Nixon's radar screen, because Rehnquist was in charge of running the radar machine, looking for potential justices.

And at the very end, I happened to be in a situation where I thought that Rehnquist would give the President everything he wanted, but nobody was paying any attention to the fact that the guy running the radar machine had all the qualifications Nixon wanted. So I put his name in play, and was stunned when he was selected. But I'm getting ahead of the story.

BUZZFLASH: Most of your book is made up of conversations between Richard Nixon and his advisors -- which you and your researchers transcribed -- that we never thought we'd find riveting. But, we found it absolutely gripping to read these actual verbatim conversations. What was it like for you to go back and listen to these tapes? You were not involved in many of the conversations, so you were hearing them for the first time.

DEAN: That's correct. It was a bizarre experience. One of the reasons I did the book is never before, and I doubt ever again, will we have a historical record like this of how a Supreme Court justice was actually selected. At that time, you couldn't take copies of the tapes out of the National Archives. They had a listening room in the Archives, and some of the conversations are so outrageous, and Nixon's comments are so unbelievable, that I would burst out in laughter as I was sitting there with earphones on. And everybody in the listening room looked around wondering, What's getting to him?

For example, when Nixon got on the subject of putting a woman on the Supreme Court; he thinks it's a great political idea. But he's actually appalled at the thought of a woman being a justice. He thinks it's a disaster to appoint a woman to the Supreme Court. So he is constantly making comments like, "You know, putting a woman on the Supreme Court would be like putting a woman in a space capsule with a bunch of men." He just can't even envision this -- how awful it would be. I found such bizarre comments funny, because the man was so out of touch with reality.

Rather than do a book of transcripts, which has been the norm with presidential tapes, I created dialogue from the tapes, and it worked remarkably well. Without changing any of the meaning -- Nixon is highly repetitive so I cut out the repetitive parts -- I would just make it a flowing conversation. And people do not feel they are reading transcripts. It is easy to get into the dialogue, and into the conversations, and I thought it worked really well.

BUZZFLASH: Well, before we get to the actual events that led to Rehnquist being nominated, you already brought up some issues which certainly we were astonished by. Although it's been remarked before that Nixon had moments of being a bigot, his remarks regarding Jews and women in particular were astonishing. It seemed blacks were beneath his contempt. Were you surprised at the scorn? Clearly his anti-Semitic remarks are heartfelt anti-Semitism on his part, and they come up repeatedly. I think at one point Mitchell says, "Well, what about the Jewish seat? Aren't you going to appoint a Jew?" And Nixon says, "After I'm dead."

DEAN: Not during my lifetime, right.

BUZZFLASH: Not during my lifetime, and various remarks beyond that. But his remarks about women -- obviously he should get credit for being extremely politically shrewd -- and he was willing to nominate a woman, even though he said, as you noted at points, he'd nominate a woman to the Supreme Court, but he didn't even think they should be educated. And he wouldn't have supported them getting the vote. Was he being serious about this?

DEAN: He's deadly serious in these conversations. While I never heard this from Nixon when I was in the Oval Office, it was one of the things that surprised me when the tapes surfaced. It seems that Nixon had different types of conversations with different people. I find that he was at his worst, it seems, with Bob Haldeman, his chief of staff. When talking with Haldeman, his anti-Semitism is at its worst. He's less so with Ehrlichman. Nixon was also very open with Mitchell, as he is with Haldeman. So it depends on with whom he's talking.

What was most unusual in Nixon's conversations about selecting two new justices, was that he cut out first Haldeman, and then Ehrlichman. In fact, during one conversation he sends Ehrlichman out of the office so he and Mitchell can get down to -- let the boys talk this over and we'll solve this. That's a tape that was recorded in the Executive Office Building, which has the worst of the taping systems. But I believe I was able to get 98 percent of it, and all of the essence of it anyway. Many of these conversations take hours to transcribe, sometimes ten to fifteen hours to transcribe one hour, which I then cut down to its very essence for the book.

BUZZFLASH: Not to give the impression that this is a totally somber book -- I think it's a fascinating insight into history. Particularly, I mean, you have to give Nixon credit. He certainly was a hands-on president in the sense that he very much deliberated on decisions.

DEAN: You know, I think this is unique. By that I mean, Nixon was not a hands-on president on many things, particularly on the domestic side. Indeed, no president could be. Nixon, of course, was very hands-on on foreign affairs. But I've looked at the selection process for Supreme Court justices in the broader context, and looked how all the modern presidents have selected justices. When you have a president who's a lawyer -- particularly a lawyer like Nixon who had actually argued twice in front of the Supreme Court and did so very well, to the surprise of the Court and to the pleasure of the Court actually, because he was an excellent appellate advocate. Because of Nixon's knowledge of the Court, he was very involved in making his selections.

In fact, Nixon would have been a great appellate lawyer. It would have been a perfect niche for him and might have given him a happier life. But anyway, because he was a lawyer, he was very involved. Bill Clinton was the same; he was deeply involved. George H. W. Bush was barely involved at all because he wasn't an attorney. It didn't interest him. No one was more involved in selecting justices than President Taft, who had been a judge, and would later be chief justice. As I look back over other presidents, it seems those who were lawyers got deeply involved in this process. Those who are not, they delegated it to somebody else.

BUZZFLASH: Now the book is not without at least one or two comic moments. As you mentioned, some of Nixon's statements are so absurd that you laugh at the very dark humor sort of way. But I thought there was a fantastic scene on page 86 of the book, where there's a meeting in the Executive Office Building. This is the first time that Nixon meets Rehnquist. And I don't know if you want me to read it, or do you want to recall it? But this is just a precious moment.

DEAN: It was a precious moment in my experiences at the White House. What happened -- I'll explain it briefly -- is that there was a committee meeting on declassification of government papers. And Nixon, to impress the group that had been formed under Bill Rehnquist, as assistant attorney general in charge of the office of legal counsel, decided to go over to the session where the group was meeting to impress upon them the importance of the undertaking. So he walks in, and Rehnquist is chairing the meeting. After the President was introduced, he gave a little talk. Then he turns around and walks out of the meeting, but on the way out, he signals me to follow him.

So I followed the President out. And he stops in the reception area, outside his office. I don't know if he wants me to follow him into his office. But he stops and turns around, and said, "John, who's that guy who was running the meeting." And I said it was Bill Rehnquist. Nixon said, "Spell it." And I had to spell it for him. And then he asked, "Is he Jewish?" And I said, "No, not to my knowledge. I think he's Scandinavian."

I was trying to figure out what was on the president's mind. And finally he blurts out, "John, the guy looked like a clown to me." Then he turns and goes into his office. After that I went back in and looked at Rehnquist, whom I was used to seeing in those days when he wore big, heavy, black frame glasses -- the frames that Senator Barry Goldwater made famous -- very heavy, black frames. Rehnquist also at that time had muttonchop sideburns. And I think Bill Rehnquist might be color-blind, because he could always manage to get a necktie and a shirt that would drastically clash. Maybe he still does but being on the Supreme Court, because he's wearing a black robe, nobody can see what's underneath the robe. But then there are those amazing chevrons he put on his robe. Anyway, Bill used to wear these amazing combinations. And on that day he was wearing probably one of the uglier ties I've ever seen.

BUZZFLASH: You said an awful psychedelic necktie on a pink shirt and Hush Puppies.

DEAN: Right. And we didn't see a lot of Hush Puppies in the White House in those days. And there was Rehnquist with his Hush Puppies on, pink shirt, and psychedelic tie, which made Nixon think he was a clown. And he actually repeats this later in a conversation with Ehrlichman. He refers to Rehnquist, when he can't remember his name, as "the clown." But this was long before Nixon was focusing on Rehnquist for a job on the Court. It was, however, Nixon's first impression of Rehnquist.

BUZZFLASH: You also quote from another taped conversation later, where Nixon says, "'You remember the meeting we had when I told that group of clowns we had around here -- Renchburg and that group? What's his name?' 'Rehnquist,' Erlichman replied. All in all, an inauspicious introduction for a future Supreme Court nominee to the Commander in Chief."

End of Part 1 | Part 2

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Former White House counsel John W. Dean is a frequent guest on national television shows, discussing matters related to the Nixon presidency as well as legal, political, and government issues in general. He is a columnist for MSNBC.com and Findlaw's "Writ," a popular legal Web site (www.findlaw.com), and he regularly reviews books for such publications as The New York Times Book Review, Chicago Tribune, and Salon.com. He is currently producing a television docudrama (which he also co-wrote) for TurnerTelevision, entitled The Pentagon Papers, starring Alec Baldwin and directed by John Frankenheimer.

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