Four things Antonin Scalia did on executive power, secrecy & surveillance in the Ford administration

There have been a lot of retrospectives about Justice Antonin Scalia’s record on the Supreme Court since his death on Saturday, but here are four things about his earlier career as head of the Justice Department’s Office of Legal Counsel  in the Ford administration that you might not know about. They are drawn from my first book, Takeover, and are largely based on research I conducted in the archives of the Ford Presidential Library, although one is from a speech he gave at a conference in Ottawa I attended.  (All of these are from Chapter Two of Takeover, which is available to read free on this website.)

1. Scalia advised Ford to veto a bill that expanded the Freedom of Information Act by permitting judges to look at material the executive branch said was classified

But the CIA, the Pentagon, the State Department, and other agencies that dealt in classified information were adamantly against the bill. Leading the charge was the young head of the Justice Department’s Office of Legal Counsel, which advises the president on constitutional matters. His name was Antonin Scalia. Scalia asserted that the bill unconstitutionally infringed on the president’s “exclusive” power to withhold information to protect national defense and foreign policy.45 Joined in argument by all but one of Ford’s top advisers (Buchen, the White House counsel and a friend of Ford’s from their college days46), Scalia and company convinced Ford to veto the bill because it could lead to leaks and “would violate constitutional principles.” 47 The Ford administration then launched an all-out lobbying campaign to urge Congress to sustain the veto and instead pass alternative legislation that Ford’s legal team would help craft. Congress, however, promptly overrode his veto.48

2. Scalia signed off on covert intelligence operations during the Church Committee investigation

Years later, Scalia would recall attending daily morning meetings during this period in the White House Situation Room with Marsh, CIA director William Colby, and other top officials. At those meetings, “we decided which of the nation’s most highly guarded secrets that day would be turned over to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning. One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department, so, believe it or not, for a brief period of time, all covert actions had to be approved by me. Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise. Nor did I feel that the Department of Justice had a security apparatus to protect against penetration by foreign operatives. We had enough security procedures to frustrate la cosa nostra, but not the KGB.”58

3. Scalia told Ford to assert executive privilege to prevent Western Union and the FBI from testifying before Congress about a warrantless surveillance program

The following February, on Antonin Scalia’s advice, Ford asserted executive privilege to prevent FBI agents and Western Union officials from testifying about a program in which the telegram agency had been turning over cables to the government without warrants. Memorandum of conversation, November 21, 1975, Ford Presidential Library, National Security Adviser Memoranda of Conversations, box 16, folder: November 21, 1975—Ford, Kissinger; Antonin Scalia to Philip Buchen, memorandum re: “Claim of Executive Privilege with Respect to Materials Subpoenaed by the Committee on Government Operations, House of Representatives,” February 17, 1976, Ford Presidential Library, Presidential Handwriting File, box 31, folder: National Security Intelligence (13).

4. Scalia told Congress it could not require presidents to show lawmakers all diplomatic agreements after the revelation that Nixon had secretly promised South Vietnam the United States would come back to its defense and resume the war if the North violated the ceasefire

Lawmakers quickly introduced legislation in both houses that would require the president to submit any executive agreements to Congress for approval, as he was supposed to do in the case of a treaty. On May 15, 1975, the Ford administration dispatched Scalia to the Senate to testify against the bills. He called the plan an unconstitutional attempt to usurp presidential power to carry out the nation’s foreign affairs.67 Although legislation to force presidents to submit their executive agreements to a vote in Congress would eventually falter, senators would succeed in getting Ford to show them classified letters he had exchanged with Saudi Arabia, even though the president felt “it would not be wise to establish the precedent of providing correspondence between the heads of state.” 68 As the fight played out, Ford called several congressional leaders into the White House and urged them to slow down the legislation. Ford’s deputy national security adviser, Brent Scowcroft, urged the lawmakers not to undercut the president’s ability to speak for the United States with other foreign leaders. But Senator John Sparkman of Alabama told Scowcroft that the American president didn’t have the power make a commitment on behalf of the country on his own. “Other presidents do speak with that kind of authority, and this is precisely the danger we want to avoid,” Sparkman said, alluding to dictatorships.69