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Mitchell Wins Warrantless Wiretap Case : But Justices Refuse to Give Cabinet Officers Immunity From Suits

Times Staff Writer

Former Atty. Gen. John N. Mitchell may not be sued for civil damages for a warrantless “domestic security” wiretap he authorized in 1970 that later was ruled unconstitutional, the Supreme Court ruled Wednesday.

In a 5-2 decision, the court held that it had not been “clearly established” that such action was illegal at the time the wiretap was placed on the telephone of a college professor who belonged to an anti-Vietnam War group.

Peril Cited

But, significantly, the justices refused to extend to the attorney general and other Cabinet officers the same kind of absolute immunity that protects presidents, congressmen and judges from any damage suit for rights violations.

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“The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity,” Justice Byron R. White wrote for the court.

The court rejected a contention by the Reagan Administration that absolute immunity is necessary to ensure that attorneys general can act “unhesitatingly and energetically” against terrorism and violence without fear of damage suits.

White conceded that in the future the attorney general “on occasion may have to pause” to consider whether a course of action would violate the Constitution. But, he said that “we do not believe that the security of the republic will be threatened if its attorney general is given incentives to abide by clearly established law.”

The case (Mitchell vs. Forsyth, 84-335) involved a long-standing lawsuit stemming from a warrantless wiretap on the professor’s phone for a two-month period beginning Nov. 6, 1970.

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During that time, three calls between the professor and Keith Forsyth, an engineering student in Philadelphia, were intercepted. None of the conversations involved criminal activity. The FBI suspected that the anti-war group of which the professor was a member was considering kidnaping Henry A. Kissinger, then national security adviser to President Richard M. Nixon.

Forsyth learned of the wiretaps in 1972, when he was involved in an unrelated case. In another case, the Supreme Court ruled shortly thereafter that the Constitution barred warrantless wiretaps in cases involving domestic threats to national security. Forsyth then brought suit against Mitchell, charging violation of his constitutional rights.

Suit Dragged on for Years

The lawsuit has dragged on for years. Before trial, Mitchell raised the issue of whether he could be sued, and that issue went to a federal appeals court in Philadelphia, which rejected his position. Mitchell then took the case to the Supreme Court.

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Mitchell, now a business consultant in Washington, argued that, in exercising national security functions, he was protected against all civil damage suits as a matter of law. Secondly, the former attorney general said that he was immune because he believed such action was legal at the time he authorized the wiretap.

The Supreme Court rejected Mitchell’s first contention but accepted the second. The justices filed several opinions--but White, Chief Justice Warren E. Burger and Justices Harry A. Blackmun, John Paul Stevens and Sandra Day O’Connor all agreed that Mitchell may not be sued under those circumstances.

White noted that warrantless electronic surveillance in national security cases had been initiated in 1940 and had been conducted with the approval of six presidents before it was finally struck down in 1972. Although executive authority for warrantless wiretaps did not survive long after the 1970 tap, White said, “it by no means follows that Mitchell’s actions . . . violated law that was clearly established at the time of the authorization.”

In dissent, Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, said that allowing officials to appeal such an issue before a case goes to trial would give authorities “a potent weapon” against such suits, “delaying litigation endlessly with (appeals).”

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Forsyth’s attorney, David Rudovsky of Philadelphia, expressed disappointment that his client would not be able to recover damages “for what was clearly an illegal act.” But he voiced relief that the court did not extend absolute immunity to the attorney general.

“That was the most dangerous claim the government made,” Rudovsky said. “It would have allowed any attorney general to say, ‘I know it’s against the law, but I’m going to do it anyway.’ ”

Justices Lewis F. Powell Jr. and William H. Rehnquist did not participate.

Ruling on Lust

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In another decision (Brockett vs. Spokane Arcades, 84-28), the justices approved a lower court’s invalidation of part of a Washington state anti-obscenity law that banned material inciting “lust.” But, by a vote of 6 to 2, the justices, in an opinion by White, said that a ruling by a federal appeals panel in San Francisco went too far in striking down the entire state law because of the flawed provision.

That provision, existing in laws in only Washington state and Mississippi, denied constitutional protection to films and books that “incite lasciviousness or lust.” The Washington law was challenged by arcade operators and civil libertarians as overly broad.

The appeals court agreed, finding that “lust” now had acceptable connotations. It pointed to the celebrated 1976 magazine interview of Jimmy Carter in which the presidential candidate conceded that he had “looked on a lot of women with lust (and) . . . committed adultery in my heart many times.”

Defamation by Petition

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The justices ruled also, 8 to 0, that the Constitution does not bar libel suits for defamatory statements made in a letter or petition to the President or other government officials (McDonald vs. Smith, 84-476).

At issue were letters written by Robert McDonald opposing the proposed nomination of David I. Smith as a U.S. attorney in North Carolina. McDonald accused Smith, among other things, of being unethical. Smith was never appointed and brought a $1-million libel suit citing McDonald’s letters.

McDonald contended that such suits were barred under the right to petition government for redress of grievances. But the court, in an opinion by Burger, disagreed. The chief justice said that the court could not elevate the right to petition above other First Amendment rights of expression, such as freedom of the press.


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