The Justice Department decided to support former president Richard M. Nixon's claim of executive privilege over his White House papers and tapes after Nixon's attorneys met privately with two top aides to Attorney General Edwin Meese III, according to department documents.
Department officials confirmed that Meese's counselor, T. Kenneth Cribb Jr., and senior special assistant, Stephen H. Galebach, discussed the issue with Nixon's attorneys late last year. In February, the department issued a controversial legal opinion saying that President Reagan is bound to support almost any executive privilege claim by a former president.
The Justice opinion could aid the former president's efforts to block the National Archives from gradually releasing 14 million pages of Nixon White House papers and 4,000 hours of Oval Office tape recordings that have been under wraps since Nixon resigned in 1974. Justice's opinion was issued in reponse to a proposed Archives regulation to govern release of the documents.
At a House hearing April 29, Assistant Attorney General Charles J. Cooper, who signed the opinion as head of the Office of Legal Counsel, testified that neither he nor his staff had any contact with Nixon's representatives or former aides. While Cribb and Galebach are not members of Cooper's staff, both men met with Cooper on the issue after their session with Nixon's lawyers.
Cooper said he had been "very open, very forthcoming" with the Government Operations subcommittee, and dismissed "any sinister inference" that he was trying to hide the meeting with Nixon's lawyers. "I personally provided the very document that disclosed that fact" to the subcommittee, he said.
Cooper said the meeting with Nixon lawyers Herbert J. Miller and R. Stan Mortenson "had no impact whatsoever" on his opinion, and that the attorneys said nothing "that was not part of the pitch they've been making for a long time." He said his 30-page opinion also sided with the Archives against Nixon's position on some issues.
But subcommittee Chairman Glenn English (D-Okla.) said in an interview, "It's obvious they are granting special consideration to the wishes of former president Nixon. This is reminiscent of what happened 12, 13 years ago. We still have the stonewalling of the Nixon records."
Cooper's opinion said that "as a general matter, an incumbent president should respect a former president's claim of executive privilege without judging the validity of the claim." It said the archivist, as a presidential appointee, has no choice but to go along.
Mortenson said the opinion "says that we're right" about a former president's right to claim executive privilege. But he said he never argued that the incumbent president must support such claims.
Said Mortenson, "The position reflected in the Justice Department memo is not an argument I've ever advanced to anyone at any time. I agree with the part that says that a former president can assert the privilege and the archivist should not be in a position to overrule it. I did not know the memorandum was going to be issued or what it said." Mortenson declined to confirm the meeting with Meese's aides.
Mortenson said the opinion "certainly protects [Nixon's] interests more than the archivist's position had." But he said the proposed rule still does not provide enough notice to former Nixon aides who might challenge the release of material on privacy or other grounds.
After the Watergate scandal, Congress passed a 1974 law mandating that Nixon's presidential papers be made public. All other presidents have been allowed to take their papers with them upon leaving office, but under another statute, passed in 1978, Reagan's documents and those of his successors will become public property, beginning 12 years after they leave office.
As a result, English said, the Justice ruling also "sets a precedent that would be of value to President Reagan" if he contests the release of his papers after leaving office. A White House lawyer first questioned last July how the the president would be affected by the dispute, as well as its impact on Nixon and former Nixon aides, according to a memo reviewed by the subcommittee.
The memo, from White House assistant counsel John G. Roberts Jr., prompted the Office and Management and Budget and the Justice Department to join the controversy. Roberts' superiors, then-White House counsel Fred F. Fielding and deputy counsel Richard A. Hauser, both worked in the Nixon White House; Fielding had disqualified himself from the issue.
In a memo last August, then-OMB general counsel Michael J. Horowitz called for a high-level administration meeting on the issue, but warned this could draw fire from such critics as Rep. Jack Brooks (D-Tex.). "Given Jack Brooks' passionate stance on both Nixon . . . . and on the 'independence' of the Archives, as well as the possibility that he and others may allege White House involvement in a continuing Nixon 'cover up,' I am obliged to alert you to possible political concerns over any meeting," Horowitz wrote.
Handwritten notes made by Meese's aides also underscore the sensitivity of the issue. One note said that senior Justice Department lawyer Ralph Tarr "thinks we should go to White House and see what amount of political heat we should be willing to take."
Another note said that a public interest group was planning to sue OMB over the proposed rule governing the Nixon papers. "Story planted few weeks ago -- probably by Archives," it said.
In February, when the proposed rule was ready for publication in the Federal Register, a Meese aide wrote that "OMB will not release to Archives 10 days in advance. Will release 2 hours in advance. Don't want any leaks to Washington Post."