June 8, 1972
Page 20252
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, it is difficult for me to understand the reasoning of my good friend from Nebraska about the series of witnesses, and his statement that we were dilatory in trying to obtain witnesses or in not moving the hearings along. As a matter of fact, those of us on the subcommittee who took testimony from Mrs. Beard went out to Denver, Colo., on Saturday, conducted hearings on Sunday, and we did that on our own time. There was never a time when we were not prepared to meet in the evening or during the course of weekends if we were given the opportunity to do so, and our desire was expressed. The Senator from Nebraska knows full well of the length of time it took us to get Mr. Flanigan before the committee. His name was mentioned on the first day of the hearing, but only in the final hour did he come before the committee, and then only under the most extraordinary restrictions did he answer questions. He was one of the most extraordinary witnesses to come before a committee in the 10 years I have been in the Senate. Mr. Flanigan was permitted to say he would come before the committee but that he would tell the committee what questions he would answer and would not testify on other matters. There was the exchange of correspondence which was worked out to elicit responses showing he was involved with Mr. Kleindienst, and had seen him and called him twice. Rather than satisfying questions that some of us had wanted to ask, answers only raised additional questions.
So I reject again the argument of the Senator from Nebraska that we were dilatory in trying to increase the number of witnesses. We indicated in our report the number of witnesses we wanted to call.
I wish to ask my friend the Senator from Nebraska if he takes some issue with our desire to call Mr. Howard Aibel. Howard Aibel was a quarterback for the ITT settlement offensive. We heard from Mr. Geneen, if only partially, Mr. Gerrity, and Mr. Ryan, but the one fellow who knew what all the others knew and more was Howard Aibel. Why should we not be able to call him? Does not the Senator from Nebraska think that the testimony of Mr. Aibel would be important and worth having for the record?
Mr. Howard James actually negotiated the ITT contribution to the Visitors Bureau in San Diego.
Why should we not hear from Mr. James? We had testimony that Mr. Geneen turned negotiations over to Mr. James. Dita Beard said Mr. James handled the negotiations. Are we being dilatory to try to hear from the man who made the arrangements?
What about Mr. Timmons in the White House? We know he was in San Diego and was involved in the convention arrangements. Why should we not have the opportunity to question him as well as Mr. Flanigan? Is that being dilatory? I suggest it is not.
We go down the list. With respect to Mrs. Dita Beard, we agreed to 9 hours of questioning, yet we were able to get in only 2 hours. The final question was, "Did you know Mr. Kleindienst?"
That is the basic question. But that ended it. She said, "I met him once," and that was the end.
That was the last question. There was no followup on that answer.
There was no followup with respect to Mr. Flanigan. There was no testimony at all from Mr. Timmons, and there was no opportunity to hear from other witnesses.
I challenge the statement of the Senator from Nebraska. If he would like to make comment on these points at this time, I would be willing to yield time to him.
Mr. President, how much time do we have remaining?
The PRESIDING OFFICER. The Senator from Massachusetts has 40 minutes remaining and the Senator from Nebraska has 56 minutes remaining.
Mr. HRUSKA. Mr. President, I yield myself 3 minutes.
The PRESIDING OFFICER. The Senator from Nebraska is recognized.
Mr. HRUSKA. Mr. President, as I indicated earlier Howard Aibel testified on more than one occasion. On at least one occasion he was sitting in the audience and the Senator from Massachusetts called him from the audience. He was not scheduled but he was called upon to testify; he did to the full extent of the negotiations imagined or expressed by the Senator. He already had been questioned on all matters relating to the nominee.
With respect to Howard James, anything he would add would be cumulative and immaterial because we had other witnesses who testified about the ITT pledge. It cannot be linked to Mr. Kleindienst and it is Mr. Kleindienst who was nominated and who stands before this body and not Howard James or ITT. It is Mr. Kleindienst.
As far as Mr. Timmons and Mr. Flanigan are concerned, Mr. Flanigan testified within those boundaries which the committee by a vote of 12 to 1 determined to be appropriate. He came there under those circumstances. It was to prevent what might have been an undesirable confrontation between two constitutional branches of Government that this agreement was entered into. He testified to all matters that are pertinent. to this matter. He did not come there with a blank check and subject himself to some irrelevant, some impertinent, some redundant, and some outright alien questions to the subject at hand, which was the qualification of Mr. Kleindienst to be Attorney General.
We can see in this line of argument a repetition of that system of using and consuming time without any relevance and in redundant fashion again and again. It would serve no purpose. All the facts are there and more than enough for this body to make an intelligent judgment.
Mr. KENNEDY. I ask the Senator if he knows who in the White House negotiated with Mr. James. Do you think that that is immaterial? We have received no testimony in connection with the arrangement to have the Presidential headquarters at the ITT-Sheraton. Mr. James was working on the negotiations. Would it not be well to know with whom in the White House James was negotiating? Would it not be interesting if it turned out to be Mr. Flanigan? Should we not be able to have that information?
With respect to Mr. Aibel, it was very limited testimony, mainly dealing with the ITT shredding operation, despite the fact that he was the quarterback of the whole operation. Obviously, there was a range of contacts that Mr. Aibel knows about because he was the quarterback and knew whom all the ITT officials were talking to. We do not know who all those administration contacts were because we were unable to get the information from either Mr. Aibel or Mr. Geneen or anyone else.
When I hear the Senator from Nebraska say, "What in the world does Howard James have to do with Mr. Kleindienst?" the simple answer is that Mr. James negotiated the contribution for the Republican Convention. When it is asked, "What does that have to do with Mr. Kleindienst?" the simple answer is that for 2½ years there was a strong anti-conglomerate policy which was turned around overnight at the same time as ITT's pledge for the Republican Convention.
Mr. President, we are charged with the responsibility of finding out if there was a connection.
Each time we tried to call witnesses – Howard Aibel, ITT's quarterback on the antitrust cases; Howard James, who negotiated the contribution; William Timmons, up to his ears in convention negotiations between the White House and San Diego – we were denied these witnesses.
We are not interested in hearings ad infinitum; we are interested only in the witnesses listed on page 25 of our report.
We are not asking to go back to the Judiciary Committee and decide whom we might want to have. We have already specifically stated the particular witnesses we want to have, and the subjects on which we want to question them.
With respect once again to the role of Mr. Howard James, here is Mr. James' letter which he sent to Congressman BOB WILSON:
July 21, 1971.
To: San Diego County Convention and Tourist Bureau.
C/o: Congressman Bob Wilson, 2235 Rayburn House Office Building, Washington, D.C.
As you know Sheraton Corporation of America will have, with the completion of the Sheraton Harbor Island Hotel, a 700-room hotel being located on land owned and created by San Diego Port Authority, three hotels in San Diego. In consideration of the naming of the Sheraton Harbor Island Hotel as Presidential headquarters hotel in conjunction with its opening at the time of the convention, and as part of the general community effort to establish San Diego as a convention center by bringing the 1972 Republican National Convention to the city, Sheraton is prepared to commit a total of $200,000 to the Bureau for its promotional activities, if San Diego is designated as the convention site, on the following basis: $100,000 in cash to be available to the bureau on August 1, 1971 and a balance to be paid as a matching contribution when the bureau has raised an additional $200,000 in cash from other nonpublic sources.
HOWARD JAMES, President,
Sheraton Corporation of America.
So there is Howard James, speaking about the ITT-Sheraton being named as presidential headquarters. What authority did James have to say that? Whom did he talk to in the White House about that? So now we can see why we need Mr. James.
All we want to do is to have the opportunity to ask those questions. They are extremely relevant to the issues before us. I ask my friend from Nebraska, should we not be entitled to obtain from ITT the various memorandums they have which relate to antitrust policies – those memorandums which were not shredded? We asked Attorney Gilbert if he would provide that material to the committee.
Mr. Gilbert indicated that he would make it available to the committee, but we have never received it.
I would ask why the Senator from Nebraska was not helping us or assisting us in getting that material from ITT, so that we could present it to the Senate? If any of that material had been made available to us, perhaps it would. have been helpful to ITT. Yet they refused to provide it.
Here are some of the items we requested from ITT. These are listed beginning on page 120 of our report: Memoranda or vouchers relating to Mrs. Beard’s visit to the Kentucky Derby. These would include the alleged memorandum from Mrs. Beard to Gerrity indicating that she would see Mitchell at the Derby, and any memorandum reflecting activities or instructions she got thereafter. ITT counsel Gilbert told the committee under oath that "We have found nothing but we believe we can find some vouchers which we do not yet have." None have been supplied to the Committee subsequently.
We also asked ITT for–
Memoranda, correspondence, reports or other documents relating to Geneen's contacts with the 22 federal officials listed in the March 13, 1972 press release.
We were asking for ITT's memoranda that might indicate the nature of the conversations ITT's people had had with White House and Cabinet officials. Does not the Senator think that that would have been relevant, when ITT has admitted that these contacts were about ITT, and antitrust policy? But we were not able to get that information, even though ITT's attorney told us under oath, "When I get back to New York, I will see if we can find anything there."
So we have not been able to find out with any specificity what all these ITT officials were talking about on these occasions when they discussed antitrust policy and anti-conglomerate policy with the administration. That information is extremely important because we know that after the cases were settled none of these ITT people ever went back to the Justice Department or to the White House or to any of those Cabinet officials about antitrust policy. So I think we ought to have an opportunity to get that information.
We are certainly entitled to have the memoranda that were not shredded. And yet we find the ITT failed to furnish us that information, and that the Senator from Nebraska is not distressed that they did not provide us with it. I find that difficult to understand.
We also discovered during the course of the hearings that Mrs. Dita Beard was reimbursed for expenses by the Republican National Finance Committee into the amount of $116.50 on January 19, 1971. And she received another expense reimbursement from the National Republican Senatorial Committee on June 3, 1971, this time for $80.50. This was at a time when matters concerning ITT were being considered. Why was Mrs. Beard having her expenses paid by the Republican Finance Committee on one occasion and by the National Republican Senatorial Committee on the other? When she was charged with making arrangements at San Diego and also involved in the settlement of the ITT cases, we find vouchers paid by the Republican committees. We think there should be some explanation of that. We want to resolve that. That is the kind of information we want and which I think we are entitled to receive. Yet it is said to be irrelevant, and a dilatory tactic to ask for it.
These things are all extremely relevant and certainly justify our motion for recommittal.
Mr. President, how much time do I have left?
The PRESIDING OFFICER. The Senator from Massachusetts has 30 minutes remaining.
Mr. KENNEDY. Mr. President, I reserve the remainder of. my time.
The PRESIDING OFFICER. Who yields time?
Mr. HRUSKA. Mr. President, I suggest the absence of a quorum, to be equally divided between the two sides.
The PRESIDING OFFICER. Is there objection?
Mr. KENNEDY. Mr. President, I object.
The PRESIDING OFFICER. There is objection.
Mr. KENNEDY. Mr. President, how much time remains on the other side?
The PRESIDING OFFICER. Fifty-three minutes remain to the Senator from Nebraska.
Mr. KENNEDY. And how much to us?
The PRESIDING OFFICER. There are now 52 minutes to the Senator from Nebraska and 30 minutes to the Senator from Massachusetts. If no time is yielded–
Mr. KENNEDY. Mr. President, I have some additional remarks. I would have thought that those who support this nomination would be wanting to take the opportunity to respond to the questions raised here and to use some of their time, but they appear unprepared to do so.
A great deal has been said here to the effect that, well, what do all these matters have to do with Mr. Kleindienist? What have Howard Aibel, or Howard James, or Peter Flanigan, or William Timmons, or Dita Beard got to do with Mr. Kleindienst? I would like to mention here the various contacts that Mr. Kleindienst had on the ITT case and to point up the importance of these various contacts. We have talked about the different roles these people have had with the settlement of the case. I would like to review very briefly the contacts between Mr. Kleindienst and representatives of ITT because it stands in stark contrast with what he had written to Mr. O'Brien when he indicated that the ITT matter had been "handled and negotiated exclusively" by Mr. McLaren.
Yet, even though he wrote that to Mr. O'Brien, we find, on page 156 of the hearings, Mr. Kleindienst saying:
Yes, I guess I set in motion a series of events by which Mr. McLaren became persuaded that, for the reasons heretofore discussed, he ought to come off his position with respect to a divestiture of Hartford by ITT.
Mr. President, that is a pretty wide disparity between what was written to Mr. O'Brien as to the involvement of Mr. Kleindienst on the one hand and what Mr. Kleindienst himself indicated to our committee on the other.
It is understandable why he would have made the latter statement "I guess I set in motion a series of events by which Mr. McLaren became persuaded that, for the reasons heretofore discussed, he ought to come off his position with respect to a divestiture of Hartford" because of the series of contacts he had. We saw his repeated conversations with Mr. John Ryan, who was the antitrust listening post for ITT.
We found out about the Rohatyn contacts, involving two telephone calls and six meetings in person with Mr. Kleindienst. We found out about Judge Walsh, who in behalf of ITT made three telephone calls and sent one letter to Kleindienst. We found out about the conversations the nominee had with Mr. Griswold about the procedure to be followed in an ITT appeal. Then, with Mr. Flanigan in the White House, there were two telephone calls and one visit in person to the nominee.
So we can see significance of the contacts that were made with Mr. Kleindienst.
I yield 7 minutes to the Senator from Oklahoma.
Mr. HARRIS. I thank the distinguished Senator from Massachusetts for yielding to me at this time. I want to pay tribute to him on the floor of the Senate for the excellent and worthwhile work he has done as a member of the Senate Committee on the Judiciary in regard to the nomination of Richard G. Kleindienst to be Attorney General of the United States.
Mr. President, I am here today to speak against the confirmation of the nomination of Mr. Kleindienst. I might say that on the day this nomination was announced, I declared that I would oppose the nomination, and my view has not changed. As a matter of fact, I have become more confirmed in my original judgment about the lack of wisdom on the part of the President in making this particular appointment.
I said at that time, that my happiness at the retirement of the then Attorney General was exceeded only by my disappointment at the naming of his successor. I still feel the same way.
My reason for opposing this nomination is basically and fundamentally the same which led me last November to oppose the nomination of Dr. Earl Butz as Secretary of Agriculture.
I simply believe that public officials, especially those who are members of the President's Cabinet, must represent the public interest. They must have backgrounds and attitudes that will lead them to give highest priority to the interests of the ordinary American – the worker, the consumer, the taxpayer.
In the case of Dr. Butz, I was gravely concerned about his ties to the giant agribusinesses and his resulting insensitivity to the needs of small farmers, farm workers, and consumers. It is the same sort of concern that leads me to oppose the confirmation of Mr. Kleindienst. His record as Deputy Attorney General indicates he is unwilling to enforce the antitrust law when big corporations violate it.
The Attorney General of the United States is the country's chief law enforcement official. While at times I have disagreed with the current administration over the methods they have used to curb crime, I remain firmly committed to the principle that the laws of our Nation must be uniformly enforced.
I think the American people rightfully expect that anyone nominated for the post of Attorney General should share this belief. Yet Mr. Kleindienst has, while a member of the Justice Department, blatantly interfered with the enforcement of our antitrust laws on several occasions.
My interest in his record in this area stems from my continuing concern about the economic and political power of big corporations in this country. As Senators know, I sponsored and cosponsored legislation aimed at protecting the ordinary American from the dangers of concentrated economic power – including the Concentrated Industries Act, which would decentralize the shared monopolies that now control 35 percent of basic industry in America.
The economic power of our biggest corporation has grown to the point that it is extremely difficult to find anyone in our Government willing to enforce the antitrust laws passed by Congress. Yet Richard McLaren, the former head of the Justice Department's antitrust division, seemed an exception to this rule. He seemed willing to file suit against those corporations, mainly conglomerates, whose activities or holdings were in violation of the antitrust laws. Mr. McLaren did not get very far; and in at least two cases Mr. Kleindienst was the man who kept the Justice Department from enforcing the law of the land.
Ralph Nader's Study Group report on antitrust, entitled "The Closed Enterprise System," describes these cases in some detail.
According to their account, in early 1969 ITT was attempting to acquire the Canteen Corp., the Nation's leading producer of vending machines. When the Antitrust Division recommended that the Justice Department file suit to block the merger, Attorney General Mitchell withdrew from consideration of the case due to a conflict of interest. As the hearings also brought out, it therefore fell to Richard Kleindienst, Deputy Attorney General, to decide what to do about the case. I would emphasize the importance of the decision Mr. Kleindienst had to make. It did not involve the conglomerate merger of a mom and pop grocery store with a local florist. ITT is the eighth largest industrial company in America, with assets of over $6 billion. At the same time it was seeking to merge with Canteen, ITT was also initiating mergers with the $2 billion Hartford Fire Insurance Co. and with the Grinnell Corp., a large, diversified manufacturer. The March 2 Washington Post noted that Mr. McLaren wanted to overturn these mergers as it stated, "to break up at least part of the giant ITT telecommunications industrial complex." In addition, the Post pointed out that–
On several occasions McLaren said that the ITT-Hartford case could well break new legal ground for the applicability of the Clayton Act.
What did Mr. Kleindienst do, Mr. President, when faced with making part of the decision on whether or not to challenge the biggest merger in the history of corporate America? According to the Nader report, he rejected the advice of Mr. McLaren and the staff of the Antitrust Division, and refused to file suit before the merger went into effect. Whether his decision was based on explicit political considerations, as Nader's study group charges, or rather merely on Mr. Kleindienst's unwillingness to challenge corporate power, it amounted to a refusal to enforce the law.
The Nader report goes on to describe how, after Mr. Kleindienst's initial decision, Mr. McLaren threatened to resign if the case was not brought. The report underscores what happened next.
"The case was filed, but not until after the merger had been consummated. Thus, there was no chance for a preliminary injunction to stop the merger from occurring, as the antitrust staff had urged." When the Canteen case, along with the Grinnell and Hartford Fire cases, were settled in a consent decree on July 30, 1971, ITT agreed to divest itself of $1 billion in assets, including the illegally acquired Canteen Corp. While most of the attention has correctly been focused on the fact that ITT was not required to divest itself of the $2 billion Hartford Fire Insurance Co., the fact remains that the consent decree, splitting Canteen from ITT, confirmed that Mr. Kleindienst had been wrong from the beginning.
The Nader antitrust report also describes Mr. Kleindienst's actions in the proposed merger between two giant drug companies – Warner-Lambert and Parke-Davis. Again I must emphasize the importance of the decision Mr. Kleindienst would make. As the hearings chaired by the late Senator Estes Kefauver so ably documented, the drug industry is the most profitable one in America. The average person is grossly overcharged for brand name drugs right now. The industry has an elaborate system of patent monopolies, excessive advertising expenditures, and monopolistic structures which takes the ordinary person to the cleaners when he or she buys brand name drugs. For this reason we need more competition in the drug industry – not more concentration.
Yet that is precisely what Warner-Lambert and Parke-Davis proposed in July of 1970 – a merger which would make the new company the fifth biggest drug company in America with sales of $1.1 billion a year. Attorney General Mitchell again had to withdraw from the case because of a conflict of interest with his former law firm. Again, according to the Nader report, Mr. McLaren and the Antitrust Division staff recommended that the Justice Department file suit to block the merger. And again, Mr. Kleindienst refused.
Nader's Study Group believes that "the political context of this case is even more suspect than in ITT-Canteen." They point to the fact that the honorary chairman of Warner-Lambert is Elmer Bobst, a close friend of President Nixon. And that in an interview earlier this year with the Washington Post, Mr. Bobst admitted "I never opened my mouth to the President about the case. I did talk to other people in the White House about it, though."
Whether or not such considerations affected Mr. Kleindienst's refusal to block the merger, his decision was clearly a case of nonenforcement of the law. Five months after he overruled the Antitrust Division and stopped the Justice Department from enforcing the Clayton Antitrust Act, the Federal Trade Commission did challenge the merger. On April 20, 1971, the FTC charged that it would harm competition in the markets for 52 specific drugs. Once again, Mr. McLaren was vindicated and the evidence of Mr. Kleindienst's unfitness to be Attorney General increased.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. KENNEDY. I yield time to the Senator.
Mr. HARRIS. There is one other related issue involving the Justice Department's willingness to enforce the law against big corporations on which I believe this body should consider the impact of confirming Mr. Kleindienst. The Reclamation Act of 1902 was designed to make sure that Federal irrigation projects served small, family farmers and not the agribusinesses, the railroads, and the other giant landowners. The law specifically states that anyone receiving federally subsidized water must sell, at pre-irrigation prices, irrigated holdings over 160 acres. As we all know, this law has never been enforced and there are giant landlords in California with tens of thousands of acres irrigated at the expense of the Federal taxpayer.
Recently, court actions have tended to favor those who would like to enforce the 1902 law. But in an extraordinary letter to Mrs. Stephen L. Stover of Manhattan, Kans., the Solicitor General of the United States admitted that the Justice Department had not pursued one case on appeal because he believed "we should not win it." This, of course, is incredible doctrine – that the Justice Department can simply ignore a law when it disagrees with its intent.
Will Mr. Kleindienst enforce the Reclamation Act of 1902? His record on issues favoring the wealthy over the working man does not suggest this.
I must emphasize once again, Mr. President, that even if the more severe charges that have been made about this nomination are not true, the confirmation of Mr. Kleindienst would be a mistake.
The refusal of a public official, and especially the second highest law enforcement officer in this country, to enforce the law – for whatever reason – is cause enough to reject his promotion to higher office. Even if there were no suggestion of financial and political influence over the decision making process, the fact that Mr. Kleindienst's decisions themselves have amounted to nonenforcement of the antitrust laws disqualifies him from the attorney generalship.
As the Members of this body know, the problem of economic concentration in this country is getting worse all the time. In 1945, the 200 biggest corporations controlled 45 percent of manufacturing. By 1968 that figure had grown to 60 per cent. The actions of Mr. Kleindienst and Mr. Mitchell in refusing to block major mergers, like the Warner-Lambert Parke-Davis merger and the ITT-Canteen Corp. merger, make the problem even worse.
These statistics and the complicated legal arguments may sound dull to the ordinary American, but they determine the prices he pays and the quality he gets when he shops for products every day. Mr. Kleindienst's refusal to enforce the antitrust laws against the big corporations will cost the working men and women of this country dollars and cents.
To confirm as Attorney General a man who has refused to enforce laws passed by this Congress would be to violate our trust to those who elected us, to confirm a man who ignores the antitrust laws at will – laws whose aggressive enforcement could cut many consumer prices by up to 20 percent – contradicts the public interest. And, whether or not there are huge sums of money involved – as there were in two cases I have described – it is clear that the Attorney General's duty is to work for enforcement of every law.
In addition, the Senate should consider what effect the confirmation of Mr. Kleindienst will have on other corporate executives who contemplate violating the antitrust laws.
What does the elevation of Mr. Kleindienst tell big business in this country? It tells them that the refusal to enforce the law against corporate giants will be rewarded by promotion. Dr. William O. Baker, research vice president of the Bell Telephone Laboratories, was asked recently by a Washington Post reporter whether or not he thought the Justice Department would enforce the antitrust laws against corporate efforts to wipe out competition in research activities. He replied:
I think the matter of the Justice Department is being taken care of Mr. McLaren has another job, and Mr. Kleindienst will be Attorney General. (February 18, 1972)
Let there be no mistake about it. The confirmation of Mr. Kleindienst as Attorney General will tell every corporate executive in America that obeying the law is for ordinary people – but not for them. Dr. Baker of Bell Telephone is clear that that is its impact. We should be, too.
Mr. President, I strongly believe that the confirmation of Richard Kleindienst would be a serious mistake in the light of his actions in the antitrust cases I have cited above. For this reason, I believe it is my duty to work and vote against his confirmation as Attorney General. I hope that Members of this body will agree with me. In any event, however, I do not believe that his nomination should proceed further until the Senate receives a complete study of Mr. Kleindienst's actions in every significant antitrust case in which he has been involved in the Justice Department. This committee should not concern itself solely with the few cases that have surfaced in the press and are tinged with allegations of scandal. It must look to the deeper issues that determine what the ordinary person pays for the products he buys; whether or not those products work the way they are supposed to; and whether or not he will be asked to bail out mismanaged giants like the Penn Central and Lockheed which collapse under their own weight. These are the kinds of questions the antitrust laws address; and they are kinds of questions the new Attorney General will face.
When Mr. Haynsworth and Mr. Carswell were nominated to fill vacancies on the Supreme Court, we refused to confirm their nominations – and in that refusal we clearly exercised a constitutional charge. Yet every time Senate opposition is voiced to a Cabinet nominee, we are all subjected to a barrage of criticism based on the theory that the President has some kind of "right" to appoint any relatively respectable woman or man to any job he wants to fill.
Mr. President, that is just not what the American Constitution says. As Senators, we have the right, and the duty, to vote against the confirmation of any woman or man who we feel is not suited to serve the public interest in the job for which she or he is nominated. There is no provision in the Constitution that our rejection of a candidate may only be on moral or ethical grounds. In deciding to vote for or against confirmation of Mr. Kleindienst, Senators may, and should, consider any or all of the criteria the President considers when he nominated him.
My own view is that the basic qualification for the Attorney Generalship is a commitment to enforce the law – against the powerful as well as against the powerless. Looking at this record, I must conclude that Mr. Kleindienst does not have that commitment. I, therefore, urge the Senate to recommit this nomination to the Judiciary Committee.
Mr. President, these it seems to me, are basic kinds of questions. Other Members of the Senate have spoken on the role of Mr. Kleindienst in the serious undermining of basic, fundamental, constitutional, individual rights in this country. I speak of his views of wiretapping, no-knock, and preventive detention. Such views influenced my early and immediate decision to oppose this nomination; but I have chosen this time to speak about another fundamental matter in this country, which has to do with the inordinate concentration of economic and political power.
As I have said on other occasions, those of my own party who have occupied the Presidency have not been without blame in this matter by any means. But there never has been the intensification of that kind of concentration of power that we have seen under this administration.
If one looks at a graph of mergers in this country, he will see that just before Teddy Roosevelt took office, mergers went up in a peak on a chart, like Pike's Peak, and when Teddy Roosevelt came in, they went down again. Just before Franklin Roosevelt became President, mergers went up, like Mount Everest, and then with Franklin Roosevelt they went down again. Under this administration, and the preceding administration, mergers have gone completely off the chart. So that today the top 200 corporations control 60 percent of manufacturing, as compared with only 45 percent at the end of World War II. When one considers that more than 80 percent of all individually held corporate stock is today owned by 2 percent of our population, that economic growth is primarily within corporations, and that economic growth is primarily internally generated within corporations, I think it is easy to see that we are more and more becoming a country in which the interests of government and big industry are synonymous.
I do not want to further this trend; I would like to change it. Therefore, I intend to vote against the confirmation of this nomination.
The PRESIDING OFFICER. Who yields time?
Mr. FANNIN. Mr. President, how much time remains?
The PRESIDING OFFICER. The Senator from Nebraska has 51 minutes, and the. Senator from Massachusetts has 15 minutes.
Mr. FANNIN. Mr. President, I suggest the absence of a quorum, and I ask unanimous consent that the time be charged equally against each side.
Mr. KENNEDY. I yield myself 30 seconds.
Mr. President, the Senator from Nebraska kindly offered to yield some time to us. Perhaps if we have a quorum call, the time could be taken out of his time or he could yield us some of his time.
I say to the Senator from Nebraska that we have 15 minutes remaining and he has approximately 50.
The PRESIDING OFFICER. The Senator from Nebraska has 51 minutes remaining. Who yields time?
Mr. KENNEDY. Does the Senator wish to have the time for a quorum call taken out of his time, or will he yield us some time?
Mr. HRUSKA. I have a request for time, and I yield to the Senator from Arizona such time as he may require.
Mr. FANNIN. Mr. President, the past 3½ months have been very frustrating for those of us who know Richard Kleindienst well. He is a man who will make a great attorney general, and it is unfortunate that confirmation was delayed unnecessarily for such a long time. The record is now clear that the nomination of Richard Kleindienst should be overwhelmingly confirmed. Dick Kleindienst has the intelligence, the capability, and the devotion to preserving the rights and protecting the freedom of Americans.
In its May edition Justice magazine carried an article which expressed Dick Kleindienst's deep commitment to the law and to the development of a more democratic society. This magazine, incidentally, is not published by the Justice Department.
I would like to cite a few of the paragraphs from the article which is entitled "Kleindienst: Image Distorted?" This article points out that Dick Kleindienst has a reputation for being "tough" and "hard boiled." But I think it is clear that, although he is "tough" and "hard boiled" when it comes to doing his duty, he also has a deep commitment to the principles of democracy which make our Nation great.
Here are some of the passages from the article:
Concerning his public role:
How does Kleindienst really feel about his public role?
He sees the Department of Justice as one important element in society's two-pronged drive for social reform. "A lawful society is required if we are to have long-term redress of social grievances. It is the Department's role to enforce the laws enacted by Congress, to insure the short-term accommodations to the law, so that you can have the long-term capability of social reform. No social reform is going to take place if anarchy is permitted to take over."
Concerning civil rights, Mr. Kleindienst is quoted as saying:
When the day comes that American citizens in their hearts begin to respect and honor each other as fellow human beings, that will be the day when we have eliminated the biggest injustice in our society. It will be done not by law but by changing people's hearts and minds.
Concerning dissent and violence, the article says:
Justice Department friends tag him, not as a conservative, but rather as middle-of-the-road, or leaning toward liberal. They note his willingness to make intellectual distinctions between dissent and socially violent acts.
"I believe," Kleindienst says, "that not only is the First Amendment right of free speech the most important right we have, but I also believe it important that the government, to the extent that it can, should create and maintain an atmosphere where people feel free to exercise that right."
How does this philosophy jell with his actions during the May Day demonstrations? Marnie Kleindienst describes how upsetting it was for her husband, the father of four children, to look down from a Justice Department window into the faces of 5,000 American youths demonstrating under the banner of a Communist flag.
"The steps he took were simply to hold things together until we grow back together." One of the wonderful aspects of Dick Kleindienst is his devotion to his wife, and children, and to his church.
The magazine closed its article with a brief mention of this–
He and Marnie live with their four children in a big old house in Great Falls, Va. One visitor said the Kleindienst's home appears to be forged together in love and respect, rather than law and order tactics, attributed to his department.
Marnie says that she and her husband make no big issue about hair or dress. Emphasis is placed on earning your way towards goals.
"We give the children great latitude, don't put many restraints on them. They can fly around the country, but it's on money they earned.
"We take the kids to church every Sunday. We don't make a fetish of religion, but within our concept of the basic Christian meaning, we are a Christian family. We don't interpret that to mean we have virtue. We're all fallible sinners.
Mr. President, I believe that the image of Dick Kleindienst has been terribly distorted by the groundless attacks on him during the past 3½ months. These attacks have obscured the fact that Dick Kleindienst has superb qualifications – technically and morally – to be the Attorney General of the United States.
I hope that we can now put this unfortunate episode behind us and get on with the important work before Congress.
Certainly I am relieved that the Justice Department will once again be able to concentrate its full efforts on enforcing the laws of our Nation. At last we can fill vacancies that have been left open because of the inevitable uncertainty which we have had because of the delay in confirmation.
Mr. President, in the 20 plus years that I have known Dick Kleindienst, I have never known him to act dishonorably. He has excelled in his every undertaking. President Nixon could not have made a better choice for this most important position in our Government. Again, Mr. President, I reiterate that I have every confidence that Dick Kleindienst will be a great Attorney General,
Mr. MILLER. Mr. President, I will cast my vote for confirmation of Richard Kleindienst to be Attorney General.
A study of the record indicates to me that, notwithstanding a great amount of testimony which turned out to be unrelated to Mr. Kleindienst, this nomination should be approved.
The major allegations of the opponents appear to be these:
First. That Mr. Kleindienst did not adequately discipline a U.S. attorney for exercising poor judgment in a case involving certain individuals in San Diego, Calif.
Second. That Mr. Kleindienst did not respond truthfully to the National Democrat Party chairman when he stated in his letter to him that he had not been connected with the settlement of the ITT antitrust cases.
With respect to the allegation concerning discipline, while some of us might have taken more severe measures, this would hardly seem to warrant voting against confirmation.
With respect to Mr. Kleindienst's statement to the National Democrat chairman, I find nothing in the record to refute it. He testified fully and frankly before the committee, showing that he had, indeed, met with ITT representatives and had turned them over to the Assistant Attorney General in charge of the Antitrust Division. The settlement, which was eventually worked out, was handled exclusively by said Assistant Attorney General. Moreover, the distinguished Solicitor General, Erwin Griswold, testified that the settlement was a good one from the standpoint of the Federal Government. I might point out that Solicitor General Griswold has served in his capacity under both Democratic and Republican administrations, and his reputation for integrity is above reproach.
All of this is not to say that, as a member of the legislative branch of our Government, I approve of the conduct by certain ITT officials in connection with the proposed commitment to the San Diego Civic Association to support its bid to obtain the National Republican Convention. But that had nothing to do with this nominee.
I might add that Mr. Kleindienst has earned this promotion in view of his dedication and overall efficiency in conducting the job of Deputy Attorney General, with its enormous duties, for over 3 years.
I ask unanimous consent that the lead editorial from today's Washington Evening Star be placed in the RECORD. It well expresses my sentiments.
There being no objection, the editorial was ordered to be printed in the RECORD, as follows:
VOTING ON KLEINDIENST
It seemed, until just recently, that Richard Kleindienst might become an old man while waiting for the Senate to vote on his confirmation as attorney general. But not so. The senators have agreed to take up the matter this afternoon, and a floor decision may have been reached by the time some of the reader peruse these words.
We hope so, because the affair has been dragged on until it's threadbare, and because the country has to have – or at least ought to have – an attorney general. The latest sporadic parries at Kleindienst by his detractors in the Senate have added nothing of consequence to the record. And if anything is added in the floor debate it will come as a big surprise, for the Judiciary Committee's hearings were more than ample. They were stretched out – to the point of equaling the longest such hearings in history – so that every scrap of information could be grasped. If anything important hasn't been ascertained, it is not for lack of time or energy expended.
And this investigative dragnet did not, as a commanding majority of the committee finally acknowledged, produce anything that disqualifies the nominee. On the most critical question, no political linkage between him and International Telephone and Telegraph's various endeavors was proved. The hearings provided much sensation, but no substance as far as Kleindienst is concerned. Some senators have questioned his judgment in other matters, and there were ups and downs in the quality of his testimony, especially in regard to his retrieval of memory. But there was nothing to indicate unfitness, and indeed no one is challenging his professional qualifications and good record as an administrator in the Justice Department.
Some senators consider Kleindienst's demeanor too bluff and find his hard line on law enforcement difficult to swallow, and some no doubt see partisan political advantage in getting in a few more whacks at him today. But a sizable majority of the Senate apparently perceives that the President is fully entitled to this appointment – to say who will sit in his own cabinet. Only twice in this century have Presidents (Coolidge and Eisenhower) been denied that right, and in neither instance is there any evidence that the Senate was correct. It turned the two appointees down for trivial reasons, not related to qualifications, thereby throwing grit in the nation's system of balanced powers. We're reminded, too, of the fervid opposition to Walter Hickel's appointment as Interior Secretary three years ago, and of the fact that he later became the hero of those environmentalists who had complained the loudest.
So we hope the Senate will approve Kleindienst's appointment with the least possible delay and polemics, and get on with its weightier business. For this debate already has been exhausted.
Mr. MUSKIE. Mr. President, the Office of Attorney General is one of the most important posts in our Government. A man in that position, by word and deed, helps shape the course of justice in our country and the continuing faith, among all segments of our population, in the fairness of our legal system. Burdened with such responsibilities, the Attorney General of the United States must be a man of sound judgment whose legal and ethical sensitivities shield him and his
department from any hint of concealed misconduct or arbitrary enforcement of the laws. I have grave doubts, on the basis of his handling of three matters during his service as Deputy Attorney General, that Richard G. Kleindienst meets these high standards.
The first matter involves Mr. Kleindienst's failure to recognize a bribe offer that was presented to him in the most direct, blatant fashion. A senatorial aide, Robert T. Carson, meeting with Mr. Kleindienst in the Department of Justice, asked for Mr. Kleindienst's help in easing the troubles of a New York friend who was under indictment for Federal offenses. The aide suggested that the man in trouble would be willing to make a substantial contribution of between $50,000 and $100,000 to the reelection of President Nixon. Mr. Kleindienst, in his own testimony at the subsequent trial of Mr. Carson for perjury and conspiracy to commit bribery charges, stated that he simply told Mr. Carson he could not do anything about this matter. Mr. Kleindienst then forgot about this conversation until, almost a week later, he saw a memorandum addressed to the Attorney General from the Director of the Federal Bureau of Investigation which made reference to Mr. Carson. He then reported his conversation with Carson to the Attorney General.
The Federal bribery statute clearly seems to cover the Carson offer. Commonsense shows it was gross impropriety. Yet Mr. Kleindienst was so unmoved by its illegality or impropriety that, according to his own testimony, he did not even give Carson's offer another thought for a whole week, until Carson's existing involvement with Federal authorities came to his attention. Only then did he reconsider his view of the Carson offer and report it to the Attorney General.
I am deeply troubled by the prospect of an Attorney General who does not possess the legal judgment or the good sense to recognize a bribe offer so nakedly put. Nothing Mr. Kleindiest has said about this incident eases my doubts.
The second matter involves Mr. Kleindienst's handling of the Department of Justice's investigation of Harry Steward, U.S. attorney for the Southern District of California. Mr. Steward, upon hearing of a Justice Department investigation involving a friend of his, of possible illegal campaign contributions, intervened to halt the subpoenaing of his friend before a grand jury and, instead, interviewed the man himself, without witnesses, and reported that the expenditure under investigation had been satisfactorily explained. Steward subsequently injected himself into another investigation of the same matter by the IRS.
Steward's conduct came to the attention of Justice Department officials in Washington. Steward was summoned to Washington for a private meeting with Mr. Kleindienst, who reportedly emerged from the meeting to tell the Deputy Assistant Attorney General of the Criminal Division, whose staff was to be in charge of an administrative inquiry into Steward's conduct, that he did not think Steward had done anything wrong.
The Criminal Division, at a meeting held in Mr. Kleindienst's office on February 17, 1971, reported the finding of its staff attorney that Steward's conduct had been "highly improper" and that he should be admonished. Mr. Kleindienst disagreed. Shunning even a mild rebuke, he issued a statement completely exonerating Steward of any wrongdoing. The statement read as follows:
At the request of U.S. Attorney Harry Steward of San Diego, the FBI was directed to investigate allegations which have been raised about the conduct of his office.
These changes were exhaustively investigated by the Bureau and a report was made to the Department. I have evaluated the matter and determined there has been no wrongdoing.
The Department considers the matter closed and Mr. Steward will continue to serve as U.S. Attorney for the Southern District of California with the full confidence of the Attorney General.
Henry Peterson, Deputy Assistant Attorney General of the Criminal Division, later explained that Kleindienst decided to issue the statement because of his belief that Steward, who was about to try a major tax-evasion case, had to enjoy the full confidence of the public.
There are, as Senator TUNNEY has so ably highlighted in his statement "Individual Views on the Kleindienst Nomination," several distressing elements in Mr. Kleindienst's handling of this case:
(1) Mr. Kleindienst prejudged the merits of the case after a single conversation with Steward and informed the subordinates who were to conduct an administrative inquiry of that prejudgment.
(2) Mr. Kleindienst's public statement about the Steward case was highly misleading. Mr. Steward, according to Henry Peterson, never requested the investigation of his conduct. Mr. Kleindienst, who conceded that he did not read the FBI's investigative report on Steward, never truly evaluated the matter in detail. His statement that there was no wrongdoing simply ignored the finding of his own Department that Steward's conduct bad been highly improper.
(3) The rationale for this misleading statement, that public confidence in the office of prosecutor had to be maintained, borders on the incredible. I simply do not see how a responsible public official could contend that public confidence in the processes of government depends on hiding from the people the facts of official misdoing.
Finally, in evaluating Mr. Kleindienst's handling of the Steward case, we cannot ignore the fact that the investigation thwarted by Mr. Steward involved key fund raisers in California and national Republican circles. Mr. Kleindienst, who played a key role in the 1968 presidential campaign, must have been aware of this fact. If so, he should have been all the more sensitive to the need for a frank, judicious treatment of the Steward case. Instead, we find Mr. Kleindienst involved with hasty judgments and a calculated effort to conceal the true facts from the public. This performance, in such a sensitive setting, only erodes that public confidence in our legal system for which Mr. Kleindienst expressed such concern.
The third matter involves Mr. Kleindienst's handling of the ITT antitrust settlement. I cannot escape the conclusion, on the basis of the existing record, that Mr. Kleindienst substantially misrepresented the facts when he wrote to Lawrence O'Brien, the chairman of the Democratic Party, that the ITT settlement had been "handled and negotiated exclusively" by the head of the Justice Department's Antitrust Division. Mr. Kleindienst, in fact, played a determinative role in the events leading to the settlement of the ITT cases. He delayed, at the request of a personal friend representing ITT, a Government appeal to the Supreme Court in one of the three cases involving ITT. He maintained, throughout the crucial period prior to the settlement, continuing contacts with an ITT director, occasionally meeting with him without Assistant Attorney General McLaren, the man most familiar with the details of the case. He sat in on a meeting where ITT, urging its case for special consideration, made a presentation to Mr. McLaren and his staff.
Moreover, Mr. Kleindienst's assertion that the ITT settlement was "handled and negotiated exclusively" by Mr. McLaren ignores the role which Peter Flanigan of the White House staff played in securing the services of a financial expert to analyze ITT's contentions about the economic implications of the divestiture of Hartford Insurance. This report, which both Mr. Kleindienst and Mr. McLaren said they relied upon heavily in making the settlement decision, was later described by its author as simply not standing for the conclusions which Kleindienst and McLaren attributed to it.
These facts, in my judgment, simply do not square with Mr. Kleindienst's avowed detachment from the ITT settlement. This misrepresentation, as in the Carson matter, occurs in a case of extreme delicacy, both because of its implications for the development of antitrust law and because, at the very time the settlement negotiations were in progress, ITT was negotiating a gift that would bring the Republican National Convention to San Diego. There is no clear evidence that Mr. Kleindienst, at the time the ITT settlement was being negotiated, knew of the gift negotiations. He says he did not. However, as Senators BAYH, KENNEDY, and TUNNEY point out in their statement of views, both Mr. Kleindienst and Mr. McLaren were aware of the allegation of a nexus between the two transactions before the ITT settlement became final, as a result of a September 1971, letter from Reuben Robertson, an associate of Ralph Nader, inquiring about such a relationship. The very existence of this suspicion should have emphasized to Mr. Kleindienst the importance of allaying all such doubts through a full, candid explanation of the details surrounding the ITT settlement. Instead, when Mr. O'Brien inquired in December 1971, about these details, Mr. Kleindienst responded with a clear misrepresentation of the facts.
Perhaps, in all these matters I have discussed, there is more to be said in Mr. Kleindienst's defense. If so, I would like to hear it. Unfortunately, Mr. Kleindienst has refused to testify any further about the Carson case on the dubious ground that that case, now on appeal, might be prejudiced. The record on the Steward case is incomplete because a majority of the Judiciary Committee refused to call the key witnesses, though I must say that even on the basis of an incomplete record the culpability of Mr. Kleindienst's conduct seems irrefutable. The record on the ITT settlement is much more seriously incomplete, primarily because of the administration's continuing refusal to provide relevant witnesses and documents to the Judiciary Committee.
This last point is particularly troubling. The administration, by its refusal to cooperate with the Judiciary Committee in a full investigation of the ITT affair, is asking the Senate to approve its nominee for the vital post of Attorney General while serious questions about the fitness of that nominee remain unresolved. A President, to be sure, must be able to surround himself with officials of his choice. The Senate must be sensitive to that Presidential prerogative. But the Senate abandons its confirming role if respect for Presidential prerogatives becomes mere compliance with Presidential will, particularly in a situation where the administration itself contributes to the lingering doubts about a nominee's qualifications. I feel no reluctance, under such circumstances, about resolving the doubts against the nominee. Indeed, given the extreme sensitivity of the position under consideration, Attorney General, a position which requires the same unimpeachable integrity as a Supreme Court Justice, I feel I have no other choice.
Mr. Kleindienst's conduct in the Carson, Steward, and ITT cases, on the record before us, raises grave questions about his judgment and his sensitivity to the delicate responsibilities of his office. An isolated act might be forgiven. A consistent pattern of conduct cannot be. I must vote against the nomination of Richard Kleindienst for Attorney General.
Mr. BUCKLEY. Mr. President, I am not a member of the Judiciary Committee and have not participated, up until this time, in the confirmation hearings or debate on the nomination of Richard G. Kleindienst to be Attorney General. However, I did not want the vote on this matter to occur this afternoon without making a few comments on this issue.
I shall vote against recommitting the nomination to the Judiciary Committee. That body has already examined this question on two separate occasions – for a total of 24 days of hearings – and each time it has approved the nomination, once unanimously, once by a vote of 11 to 4. It is time that the Senate worked its will, regardless of what the outcome may be. If the nomination is approved, the Nation will have a new Attorney General and the work of the Justice Department can go forward without interruption. If the nomination is rejected, Mr. Kleindienst will be able to relax after the 4-month ordeal the Senate has put him through, and the President will be obliged to send us another nomination. But it is time we voted and stopped the politically motivated stalling tactics which have consumed so much time and noise.
Should the recommittal motion fail, I shall vote to confirm the nominee.
Several of my colleagues have examined the charges made against Mr. Kleindienst in great detail and I shall not repeat all of these matters. I particularly refer interested Senators to the remarks of the Senator from Nebraska (Mr. HRUSKA) on May 31 and again this afternoon.
Since I have come to this body, I have had numerous opportunities to work with Mr. Kleindienst on matters of interest to the State of New York. I have always found him to be honest, hard- working, cooperative, and open minded.
He is a fine human being and in my judgment will make an excellent Attorney General.
There seems to be no question concerning his abilities. He is an honor graduate of Harvard and Harvard Law School. He has been a respected member of the Arizona bar for more than 20 years and was regarded, I understand, as one of the most capable attorneys in Phoenix prior to the time he became Deputy Attorney General. It is my firm belief that he has carried out his duties as the No. 2 man in the Justice Department these past 3½ years with diligence, intelligence, and a high degree of honor.
I have read the reports of the Judiciary Committee on this nomination with some care. I have dipped to a limited extent into the three volumes of committee hearings. I have reviewed the debate which has occupied the Senate these past 8 days. It is my firm conclusion that there is nothing in all of this material which in any way should disqualify Mr. Kleindienst from being Attorney General of the United States.
To be certain, there are issues raised in the hearings and report on which the answers are not clear. This is particularly so with regard to some of the activities of ITT and its employees.
However, not one of these unresolved questions has anything to do with the nominee. His role in the settlement of the ITT antitrust cases – a settlement favorable to the Government, by the way – was proper and secondary to that of the Assistant Attorney General in charge of the Antitrust Division. His role with regard to the financing of the Republican National Convention was nonexistent.
The other substantive issues questioned by the opponents of the nomination – the investigation of San Diego U.S. Attorney Steward and the bribery trial of Robert Carson – likewise lead to dead ends. Based on the testimony adduced by the Judiciary Committee, it is my conclusion that the nominee acted reasonably and properly in both of these incidents. It would seem, in short, that some of my colleagues are clutching at invisible straws in an attempt to stop this nomination.
There is one point, however, that I would like to discuss for a moment. Much has been made of the fact that during his testimony the nominee did not always remember all the details of meetings, conversations, and events about which he was being questioned. On numerous occasions he told the committee that after refreshing his memory he remembered details and incidents which he had not mentioned earlier. These examples of imperfect recollection are now
being used by some to substantiate a claim that Mr. Kleindienst was less than candid with the committee. This argument strikes me as totally ridiculous. How many of my colleagues can recall with exactitude events and conversations which took place a year ago? I certainly cannot do so in every instance. At the time the Deputy Attorney General was discussing and acting on the various aspects of the ITT cases, those events were no more important to him than any of the other things which occupied his busy days. It is only in retrospect, in the light of later events, that they became important. I believe that it is perfectly natural, perfectly human – given the way our minds function – that he could not recall with accuracy all of the matters about which he was being questioned. Some of my colleagues are attempting to hold the nominee to a standard which they themselves could not meet. In all fairness to Mr. Kleindienst, I think this point should be made for all to consider in light of their own experiences.
These are the reasons why I shall vote for the confirmation of Mr. Kleindienst to be Attorney General of the United States. I am confident that he will bring credit to that office and to the Nation. It is my hope that a majority of my colleagues will agree with me so that the Justice Department can again operate at full capacity.