SHOULD THE Senate confirm for an important
position a nominee who seriously misled the Senate while testifying in hearings on the confirmation of a Cabinet officer? That is the question raised by the nomination of Francis M. Mullen Jr. to be head of the Drug Enforcement Administration, a nomination pending for 17 months. And we think the answer is pretty obvious: no.
Yet there is likely to be pressure on senators, notably Orrin Hatch to stop what has been described as "foot- dragging" and allow Mr. Mullen to be confirmed. For that reason, it's worth recalling the circumstances under which Mr. Mullen misled the Senate. He was testifying as an assistant director of the FBI about the investigation the bureau made of Labor secretary- designate Raymond Donovan. Sen. Hatch, chairman of the committee, asked whether FBI wiretaps contained anything pertaining to Mr. Donovan, and Mr. Mullen said they did not. That wasn't true, and Mr. Mullen has since admitted that he knew it wasn't true. There were references to Mr. Donovan, references that might have persuaded some senators to vote against Mr. Donovan's confirmation or, at the least, to seek more information before they voted for it.
Why did Mr. Mullen answer in a way that misled the Senate? His first explanation is that the mention of Mr. Donovan was "not pertinent" to the FBI's background investigation. Another was that the conversation took place in New York, and Mr. Mullen thought he was being asked about conversations in New Jersey. A third explanation is that Mr. Mullen thought it was repetitive of other allegations already reported to the Labor Committee. None of this will wash. Either Mr. Mullen intentionally misled the Senate or he answered negligently and with such poor judgment that his competence is in question.
The Senate has the right--some might say the duty--to reject such a nominee. Sen. Hatch and Sen. Edward Kennedy who seldom agree on issues, have both delayed action on Mr. Mullen's appointment as head of DEA. Under Senate rules, the nomination will die unless it is resubmitted by the administration. This is one nomination that should not be resubmitted or approved.