Rehnquist FBI File Sheds New Light on Confirmation Battles, Drug Dependence
The late Chief Justice William Rehnquist’s Senate confirmation battles in 1971 and 1986 were more intense and political than previously known, according to a newly released FBI file that also offers dramatic new details about Rehnquist’s 1981 hospitalization and dependence on a painkiller.
The FBI file on Rehnquist, released last week under the Freedom of Information Act, reveals that in 1971, as Rehnquist’s confirmation hearings for associate justice approached, the Nixon Justice Department asked the FBI to run a criminal background check on at least two potential witnesses who were expected to testify against Rehnquist. Then-FBI Director J. Edgar Hoover approved the request.
Also in 1986, the FBI conducted an intensive investigation into Rehnquist’s dependence on Placidyl, a strong painkiller that he had taken since the early 1970s for insomnia and back pain. Rehnquist’s bout with drug dependence had been made public in 1981, when he was hospitalized for his back pain and suffered withdrawal symptoms when he stopped taking the drug.
The FBI’s 1986 report on Rehnquist’s drug dependence was not released at the time of his confirmation, though some Democratic senators wanted it made public. But it is in Rehnquist’s now-public file, and it contains new details about his behavior during his weeklong hospital stay in December 1981. One physician whose name is blocked out told the FBI that Rehnquist expressed “bizarre ideas and outrageous thoughts. He imagined, for example, that there was a CIA plot against him.”
The doctor said Rehnquist “had also gone to the lobby in his pajamas in order to try to escape.” The doctor said Rehnquist’s delirium was consistent with him suddenly stopping his apparent daily dose of 1400 milligrams of the drug — nearly three times higher than the 500-milligram maximum recommended by physicians. The doctor said, “Any physician who prescribed it was practicing very bad medicine, bordering on malpractice.”
A GROWING DEPENDENCY
These and other nuggets of information are contained in the 1,561 pages of Rehnquist’s file, which the FBI released to researchers and others including Legal Times last week in response to Freedom of Information Act requests filed after he died in September 2005. The Privacy Act bars public disclosure of such files during a person’s lifetime. But that protection falls away after death, and it has become common for researchers to seek the files after a famous person dies as a window into the FBI’s practices.
Alexander Charns, a Durham, N.C., lawyer who also received the Rehnquist file last week, says it gives evidence “showing how the FBI and DOJ were out to discredit opponents of Rehnquist.” Charns, who wrote a 1992 book on the relationship between the FBI and the high court, says that aspect of the Rehnquist file “besmirched the fine legwork of the agents on the street” who aggressively investigated Rehnquist’s drug dependence and the allegations of Arizona voter intimidation.
University of Cambridge professor David Garrow, who has written extensively on the mental and physical health of Supreme Court justices through history, did not receive the Rehnquist file. But when told of the new information about Rehnquist’s drug dependence, Garrow said it again raised questions about “the long-term effect on Rehnquist of taking so much of so powerful a drug for so long.”
The file reveals that a primary focus of the 1986 investigation — launched at the request of the Senate Judiciary Committee — was identifying all the doctors who prescribed Placidyl to Rehnquist. A July 26, 1986, memo sent by then-FBI Director William Webster to the Washington, D.C., field office advised agents that some physicians already interviewed indicated Rehnquist had been taking Placidyl since before 1972 — earlier than had been previously disclosed. Agents were told that if, during their investigation, they considered contacting Rehnquist himself, “concurrence must be obtained” first from headquarters. The FBI report ultimately concluded that Rehnquist was already taking Placidyl in 1970, when he was given a physical at a government facility. By the 1980s the drug had fallen out of favor because of its potency and side effects, and even in the 1970s it was recommended only for short-term use.
Though his name was blacked out, Dr. Freeman Cary, then the attending physician of the Capitol — whose services are also available to Supreme Court justices — told agents that he began prescribing Placidyl to Rehnquist in 1972 for insomnia and continued to do so until the 1981 episode. For six or seven months before Rehnquist’s hospitalization in 1981, Cary indicated, Rehnquist was re-filling three-month prescriptions for Placidyl every month — suggesting he was taking close to 1,500 milligrams daily instead of 500.
When Rehnquist went into George Washington University Hospital in December 1981, he was seeking relief for his back but, according to some of the physicians interviewed, also knew he had a drug problem. Rehnquist’s episode with delusions came when doctors ended his Placidyl. Doctors then resumed his high dosage so as to wean him off the drug slowly, reducing gradually until he stopped taking the drug altogether in February 1982. At that point, doctors said Rehnquist was cured of his dependence.
When he was hospitalized in 1981, journalists who cover the Court recalled, Rehnquist had been having some difficulty speaking from the bench and slurred his words for several weeks. But there were no indications at the time that Rehnquist’s ability to function as a justice was otherwise impaired. All of the physicians interviewed by the FBI in 1986 said his previous drug dependence did not disqualify him from being elevated to the position of chief justice.
LEAVING NOTHING TO CHANCE
The 1986 investigation also included extensive interviews conducted to clarify Rehnquist’s role as a Republican poll watcher in Arizona in the early 1960s. Witnesses had widely varying recollections, and the FBI did not offer the Senate a clear conclusion. It did suggest that at one point, when Rehnquist was explaining voter qualifications to fellow Republicans at a Phoenix polling place, some voters who overheard the conversation left, apparently discouraged.
Some of the 1971 memos make clear that, after the failure of two of its previous nominations to the Supreme Court — Clement Haynsworth and G. Harrold Carswell — the Nixon administration was leaving nothing to chance as Rehnquist’s confirmation hearing approached.
An October 1971 memo from Alex Rosen to Clyde Tolson, two of Hoover’s top aides, reported that then-Deputy Attorney General Richard Kleindienst had called “to have a criminal background check made” on two Phoenix residents — their names are blocked out — who were expected to give testimony that was critical of Rehnquist. At the bottom of the memo is a handwritten “ok” that was the characteristic mark of Hoover himself, according to Charns, the Durham lawyer.
A memo the next day reporting the results of the inquiry is heavily redacted, which could mean that the Phoenix office found some negative information on the two potential witnesses that was redacted to protect their privacy.
The FBI’s interviews of other opponents of Rehnquist in 1971 became a matter of public controversy. The Washington Post reported on Oct. 29, 1971, that FBI agents had interviewed potential witnesses in five cities to find out, among other things, whether they would testify against Rehnquist and what they might say. Harvard Law School professor Laurence Tribe was visited by FBI agents three times, the story indicated.
Hoover, always sensitive about negative publicity, was apparently upset about the Post article. Next to the clipping of the article, Hoover wrote, “Why do we ask if the person plans to fight the confirmation?”
This produced a flurry of memos between field offices and headquarters, but another aide to Hoover concluded that “none of the persons mentioned in the Washington Post article did pose any such questions as suggested in the news article.”
A later letter to Attorney General John Mitchell, from a Harvard University official whose name is obscured, protested that anyone receiving such visits by the FBI would understandably find the visits “seriously intimidating.” Mitchell forwarded the letter to Kleindienst, who asked Hoover what happened. In a Dec. 14 letter, Hoover assured Kleindienst that Tribe was only asked if he planned to study Rehnquist’s record in the same way that he had studied the record of a previous potential nominee. “At no time was [Tribe] asked what he planned to do with any study he had made or might make,” Hoover wrote. “He was never asked for any personal background information . . . or the nature of his motivations.”
Kleindienst then wrote to the Harvard official, “I have been assured and I am convinced” that Tribe had not been asked improper questions, and “any assumption that interviews were conducted with a view toward ‘intimidation’ is completely unjustified.”
Even as the FBI was investigating Rehnquist’s background, the bureau’s legendary director was congratulating him on his nomination. In an Oct. 22, 1971, letter, Hoover told Rehnquist his nomination was “welcomed by all of us in law enforcement, as we know your judicial opinions will be in the best interest of all Americans.”
During the 1971 investigation, some sources were not consulted by the FBI. An agent in the FBI office in Milwaukee, near where Rehnquist grew up, told headquarters that “because of the extreme ultra-liberal policies of the Milwaukee Journal and the Milwaukee Sentinel . . . no inquiry [is] being conducted at these two newspapers.”
The level of detail is humorous at times. In the 1969 background check that preceded his nomination as assistant attorney general, Rehnquist acknowledged he might have been arrested in 1942.
Then a Kenyon College freshman, Rehnquist said, he went to Kent State University to visit a friend one weekend. Because of some miscommunication, the friend had left town, leaving Rehnquist with nowhere to stay. He said he “had no money with which to obtain a hotel room. I therefore lay down on the courthouse lawn at Ravenna, a neighboring town, to spend the night,” Rehnquist told the FBI. “A policeman came along, told me that sleeping on the courthouse lawn was not allowed, that he would arrange for me to sleep in jail. This he did, and I believe, though I am not certain, that I was charged with vagrancy.” Rehnquist added he was released the next morning and no further action was taken.