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Brett Dunkelman vividly remembers the days in late 1981 when then-Associate Justice William Rehnquist’s back pain was so severe that he would read briefs while lying flat on the floor of his Supreme Court chambers. And Dunkelman, one of Rehnquist’s three law clerks that term, also recalls the December day when Rehnquist abruptly checked into George Washington University Hospital, where, it turned out, he was treated not only for back pain but also for withdrawal symptoms suffered when he stopped taking Placidyl, a powerful prescription sedative. But never, before or after Rehnquist’s hospitalization, did Dunkelman see a justice who was impaired by drug use or functioning as a justice at less than top form. “My whole career since then, I’ve tried to be as �impaired’ as he was then,’ jokes Dunkelman, an attorney with Osborn Maledon in Phoenix. “He always amazed us.” Dunkelman’s observation, echoed by others who worked with Rehnquist then and since, stands in seeming contrast to the picture of the late chief justice that emerged from the FBI file on Rehnquist released recently under the Freedom of Information Act. For six months prior to his hospitalization, the file indicates, Rehnquist was refilling three-month prescriptions for Placidyl every month — suggesting he was taking three times the normal adult dosage every day, in spite of warnings not to from doctors. One physician, whose name is blocked out, told the FBI that even the normal dosage can cause blurred vision and slurred speech. The same doctor said that during his weeklong hospital stay, Rehnquist’s bout with drug withdrawal led him to express “bizarre ideas and outrageous thoughts. He imagined, for example, that there was a CIA plot against him.” Rehnquist “had also gone to the lobby in his pajamas in order to try to escape,” the physician reported. Rehnquist’s delirium was consistent, the doctor said, with withdrawal symptoms that would result from suddenly stopping his high daily dose of the drug. “Any physician who prescribed it was practicing very bad medicine, bordering on malpractice,” the physician told the FBI. The contents of Rehnquist’s FBI file, obtained through a FOIA request, were first reported on legaltimes.com last week. Dunkelman and others, including journalists who covered the high court at the time, note that in the fall of 1981, Rehnquist’s speech was sometimes muddled and that during oral arguments he sometimes had difficulty getting words out. “But what came out of his mouth was always articulate,” says Dunkelman. Even during the worst of his back pain — and, it turned out, during his highest dosages of Placidyl — Rehnquist would have cogent conversations with his clerks about pending cases, according to Dunkelman. “He would stop once in a while and head to the bookcase to get a volume of the U.S. Reports,” Dunkelman recalls. “He would read to us from a case he knew that was right on point.” He recalls no change in Rehnquist’s routine or meticulous work habits. Dunkelman says he never asked Rehnquist about his medical issues — and never saw any need to. Rehnquist was clearly suffering from back pain, but neither Dunkelman nor others were concerned, and Rehnquist’s problems were not the subject of discussion at the Court. After Rehnquist’s weeklong hospital stay — which was made public at the time — the justice worked at home for several weeks during the Court’s winter lull. “We would bring work to him at home, and give him his next �assignment,’ ” Dunkelman says. “ And we would pick up what he had done.” The new information about Rehnquist’s drug dependency adds an undeniable personal dimension to the way the public may remember him, as well as an indelible image of a justice pacing the halls of a hospital in his pajamas. But it should not affect Rehnquist’s judicial legacy in any way, says Dunkelman. “It should be treated [by history] no differently from a heart attack, as a physical impairment he had to endure.” Pepperdine University law professor Douglas Kmiec, a Rehnquist ally who was a Justice Department official at the time of his confirmation, says the revelations last week had a “tabloid quality” that was disturbing. But Kmiec also says the fact that Rehnquist’s performance was never diminished will make it a minor footnote. “There was never any concern about his ability to do the job of chief justice.” David Hudson, author of a new book on the Rehnquist Court, agrees that the news does not appear to tarnish Rehnquist’s reputation as a justice or administrator of the Court. During his research, Hudson says, “I was struck by the high regard his colleagues held him in.” He adds, “If the medications affected him, it sure was kept quiet.” Still, says University of Cambridge professor David Garrow, who has written extensively on the mental and physical health of Supreme Court justices through history, the new information about Rehnquist’s battle with dependency raises questions about “the long-term effect on Rehnquist of taking so much of so powerful a drug for so long.” Partly because Rehnquist overcame his dependence, and partly because it appeared he was functioning normally even when he was taking the drug, Rehnquist got through the 1986 hearings leading to his confirmation as chief justice with only scant mention of the Placidyl experience. Democratic senators raised the issue beforehand, urging that the FBI investigation into his drug dependence be made public. But Republicans refused, and it remained sealed until late last month, 15 months after his death, when the FBI released it. Before the hearing in 1986, Sen. Orrin Hatch (R-Utah) portrayed it as a nonissue and said Rehnquist had been victimized by overprescribing doctors — a view apparently shared by Rehnquist’s late wife, Natalie. 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 blocked 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. The interviews in the FBI file tell slightly conflicting stories about when and how Rehnquist stopped taking Placidyl, triggering the withdrawal symptoms. Some suggest that Rehnquist stopped earlier in December, on Cary’s advice, and that the resulting shock to his system led Rehnquist to go to the hospital. Others imply that Rehnquist went to the hospital because he was feeling the effects of the high dosage and that doctors at the hospital took him off the Placidyl. The FBI file reveals that, unknown to the clerks or anyone else, doctors at the hospital resumed giving Rehnquist high but decreasing doses of Placidyl to wean him off the drug safely and less abruptly. It was not until Feb. 7, 1982, that Rehnquist stopped taking the drug altogether. From then on, doctors interviewed in the report agreed, Rehnquist took no more prescription drugs, apparently managing his back pain and insomnia in other ways. He resumed tennis and walking, and he took a daily constitutional around the perimeter of the Court grounds, usually unrecognized. The dramatic details of Rehnquist’s illness were among the many nuggets of information contained in the 1,561 pages of his file. 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 reporters and researchers to seek the files after a famous person dies as a window into the FBI’s practices. SECURING CONFIRMATION The file also 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. In July 1986, when President Ronald Reagan nominated Rehnquist to be chief justice, the Justice Department asked the FBI to interview witnesses who were preparing to testify that Rehnquist had intimidated minority voters as a Republican Party official in Arizona in the early 1960s. According to a memo in the Rehnquist file, an unnamed FBI official cautioned that the department “should be sensitive to the possibility that Democrats could charge the Republicans of misusing the FBI and intimidating the Democrats’ witnesses.” But then-Assistant Attorney General John Bolton — who more recently served as ambassador to the United Nations — signed off on the request and said he would “accept responsibility should concerns be raised about the role of the FBI.” It is unclear whether the FBI ever interviewed the witnesses. Alexander Charns, a Durham, N.C., lawyer who also received the Rehnquist file, 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. 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 in connection with his critical research of the record of a prior potential nominee to the high court. Asked about the episode last week, Tribe said, “At the time the FBI showed up at my office I had no thought of taking a position one way or the other on that nomination, knew nothing that would have led me to oppose him at that time, and had no plans to testify before the Senate.” A later letter to then-Attorney General John Mitchell, apparently from Harvard University President Derek Bok, 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 the previous 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 Bok, “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.” 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.
Tony Mauro can be contacted at [email protected].

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