Warren E. Burger: We’ll hear arguments next in 72-1057 and 1319, United States against Giordano and United States against Chavez. Mr. Solicitor General you may proceed whenever you’re ready.
Robert H. Bork: Mr. Chief Justice, may it please the Court. We have two cases, United States against Giordano and United against -- United States against Chavez which involves the suppression of wire interception evidence and the fruits of that evidence in narcotics cases. The cases are here on writs of certiorari to the Fourth and Ninth Circuits respectively. In both cases the District Court suppressed the evidence applying Title III of the organized -- of the Title III of the Safe Streets Statute and this Court of Appeals affirmed and this Court granted the Government petition for certiorari. These two cases represent a great many cases. Some of them pending here on petitions for certiorari and others awaiting resolution in lower courts being held up. The issue as the Government sees it is entirely a statutory one. It’s a -- the construction of Title III of the Crime Control and Safe Streets Act of 1968 and the Government's -- the propriety, the adequacy of the Government’s procedures in processing applications to courts for orders permitting wire interception. The -- in addition to the adequacy of those procedures, the cases raise the question of whether assuming the procedures were in some degree defective, suppression is the remedy called for. At the outset I’d like to stress what these cases are not about. There are no constitutional violations in our view in these cases, no violations of the Fourth Amendment. Those provisions of this statute which were going to comply with this Court’s decisions in the Burger and Cass were fully complied with. Courts did pass upon probable cause and all other Fourth Amendment elements. There’s no contention nor I think could there be any, but the evidence that has been suppressed is not reliable evidence, there is not accurate evidence. There is no question in this case -- in these cases of convicting innocent persons. I think as we look at the case and the facts, it will also become perfectly plain that the Government’s procedures which in one or two respects certainly must be said to be not the best compliance with some aspects of the statute, do not display any malevolent purpose. There was no sinister purpose, there was no purpose of hiding anything in these procedures and I think insofar as there was a deviation from a procedure, we can just -- we can demonstrate that it was a harmless error and an error I might add which is now have been corrected. Let me --
Warren E. Burger: Corrected as to future, you mean?
Robert H. Bork: It’s been corrected for some time Mr. Chief Justice.
Warren E. Burger: Two years approximately or --
Robert H. Bork: In 70 -- 1972, the last correction took place in November, I believe.
William J. Brennan, Jr.: Mr. Solicitor General, is it the fact in each of these cases, what was told that the judge, any chances was not quite accurate?
Robert H. Bork: In every one of these --
William J. Brennan, Jr.: What happened?
Robert H. Bork: In every one of these cases, there was a letter authorizing an application which went out over the signature of Mr. Will Wilson, then head of the Criminal Division. The letter looked as if Mr. Will Wilson had made the operative decision to authorize the application to the Court. As a result, the Court orders identified Mr. Wilson as the person who had authorized the application. In fact, those applications had been authorized either by the Attorney General in most cases and in some cases by the executive assistant, the Attorney General Mr. Sullivan involved. That was a result entirely as I hope to show of the way the internal memorandum were drafted in the Department of Justice and was not a deliberate misidentification in any way.
William J. Brennan, Jr.: Now, that wasn’t my question. I gather though that what the information the judge had before him was not accurate information at all, was it?
Robert H. Bork: He had accurate information as to everything except, Mr. Wilson’s name.
William J. Brennan, Jr.: Well that’s [Laughter] rather important, isn't it?
Robert H. Bork: Well --
William J. Brennan, Jr.: Under the statute?
Robert H. Bork: I think it has, I think it has importance under the statute. I don’t think it has any importance that we justify suppression in these cases. Perhaps, it would help I can describe the general procedures that were followed in all of these cases and the statutory provisions that are claimed to be violated by that fact and then come to the particular facts of these two cases. When it was thought by an investigator or a field attorney that a wire interception order was required or was appropriate, he would then gather together the information and affidavits and the application to show probable cause, the necessity for the use of wire interception as a technique and the other aspects of the statute calls for. He would forward that to Washington. In Washington, it was reviewed by an attorney in the special unit of the organized crime and racketeering section of the Criminal Division, a special unit setup just for this purpose. That was the main review. It then went with the memorandum from the attorney in that unit to the Assistant Attorney General of a Criminal Division whereby designation it was reviewed by one of the two deputies, one of the two deputies, Attorney General’s Mr. Shapiro or Mr. Peterson at that time. Should they approve and I should stress that at every level, disapproval meant it was sent back. It did not -- if anybody disapproved, it did the applic -- the authorization -- that request did not go on and a number of them were in fact sent back. Should they approve the application and the memo were sent up to the Attorney General’s office where it was reviewed by the Executive Assistant Mr. Sol Lindenbaum, who was been the executive assistant to the Attorney’s General starting with Attorney General Mr. Ramsey Clark and is still the Executive Assistant to the Attorney General. Mr. Lindenbaum would review it and then send it on to the Attorney General, Mr. Mitchell with his recommendation. Through 1969 when this practice -- when the experience with the statute first began, 33 such applications were authorized by Mr. Mitchell personally. Mr. Lindenbaum in 1969 did not attaches Mr. Mitchell’s initials to any. They were all -- everyone was done by Mr. Mitchell. As 1970 began and the flow of these applications begin to increase and Mr. Mitchell began to do some traveling. As close as we can calculate it, about April 1st, 1970 after there had been some further experience beyond the 33 applications in 1969, Mr. Mitchell authorized orally Mr. Lindenbaum to act on his behalf when Mr. Mitchell was out -- was unavailable and could not be reached by telephone with the statement that when he returned, Mr. Lindenbaum was to tell him what he’d done in this respects and he would then see whether he approved as he did in all of these cases. Now --
Potter Stewart: What if he hadn’t approved that after he got back from a month's trip?
Robert H. Bork: Well, I -- if he hadn’t approve, I assume that the interception would have terminated. But Mr. Lindenbaum --
Potter Stewart: The interception would have taken place.
Robert H. Bork: For the month, Mr. Justice Stewart, correct. I want to -- I wish to say however that Mr. Lindenbaum was operating under a policy established by Mr. Mitchell and that he had worked on these things with Mr. Mitchell for some time before he began to do this and I think that was no question and he understood the policy Mr. Mitchell was applying. And I should also stress although I’m afraid that something stressed repeatedly, that although the interception would have taken place, had such a thing occurred, it would have only taken place after a Court had determined that every element of probable cause and every other required element was present.
Potter Stewart: Well, but also the Court, not have determined it, that the -- that Will Wilson had approved it too when he hadn’t?
Robert H. Bork: That is correct.
Potter Stewart: And that Will Wilson had been specifically designated and had in fact approved it?
Robert H. Bork: That is correct.
Potter Stewart: If that a fact it would have been approved by under my hypothetical case by Mr. Lindenbaum who was orally authorized to do it and but then on the return of the Attorney General had been disapproved.
Robert H. Bork: Under your hypothetical --
Potter Stewart: [Voice Overlap]
Robert H. Bork: Well, under your hypothetical that would be true. However, that did not happen and these procedures are no longer in effect so it cannot happen. Now, the -- about a 150 to 180 of these applications out of -- appeared to have been initialed by Mr. Lindenbaum with Mr. Mitchell’s signature. Now, that’s out of a total --
Warren E. Burger: Is that beginning in April 1970?
Robert H. Bork: That is correct Mr. Chief Justice.
Warren E. Burger: And for how long, about a period?
Robert H. Bork: In the 1971 when these practice was first questioned in Court because the Department of Justice said no inkling, anybody, they're being troublesome about this practice. When they were first questioned in the Court, they changed it. But I wish to say, about those 170 or so applications that were authored by -- authorized by Mr. Lindenbaum putting Mr. Mitchell’s signatures on the memorandum, that a great many of those were in fact applications that had been authorized by Mr. Mitchell over the telephone. Mr. Lindenbaum had gotten to him over the telephone, had read hem the stuff and read him the material and had received Mr. Mitchell’s approval. And so that Mr. Lindenbaum was performing in those cases a ministerial act only of doing what Mr. Mitchell conformed we should do. Unfortunately, Mr. Lindenbaum did not keep a record of the telephone calls so that we in every case in which Mr. Lindenbaum put Mr. Mitchell signatures on the memorandum, we must assume that that maybe a case in which there was no telephone authorization. Although we know that a great many of them were in fact authorized by telephone. It’s at this stage that the first problem of -- or claim of violation of the statute occurs because in Title III, 18 U.S.C 2516, it is provided that the Attorney General or any Assistant Attorney General specially designated by the Attorney General may authorize an application to a federal judge. And the claim is that when Mr. Lindenbaum, the Executive Assistant applying the policy laid down for him by the Attorney General authorized that that falls outside the statute. Now, the second issue arises because of the form of the memorandum that Mr. Lindenbaum or Mr. Mitchell in most cases actually initialed. The form of the memorandum was draft -- the memorandum was drafted so as to track the statute. That memorandum was drafted by so far as we can tell by an attorney in the special unit which first reviews these things and send up with the file from Mr. Mitchell to authorize it. And it was in the form of a special delegation so that when the memorandum was initialed, it went back down to the Criminal Division, addressed to Mr. Wilson saying pursuant to the powers conferred on me by Section 2516 of Title 18, you are hereby specially designated to exercise those powers for the purpose of authorizing, the particular trial attorney, to make the above described application. He’s delegate -- he’s designated solely for the purpose of authorizing it so that it’s understood that Mr. Wilson is to perform a ministerial act. He’s not designated to make any judgment. In fact the judgment of the Criminal Division had already been made when the file was on its way up or it wouldn’t have gone up. The net result was, when that memorandum went down, this ministerial act of affixing a -- Mr. Wilson’s signature to a letter was performed by one of his two deputies, both of whom were authorized to do this in a number of matters to Mr. Henry Peterson and Mr. Harold Shapiro. The letter went out, as we have noted, looking as if Mr. Wilson had made the operative decision when in fact the Attorney General had made the operative decision or in some cases, the Attorney General’s executive assistant. And the Attorney in the field would have no way of knowing about this memorandum in its form and why does it occur, so he would assume, usually that Mr. Will Wilson had made the operative decision. And he would so tell the Court and it is claimed there and the Court would include that fact in its order and the claim therefore is that Section 2518 of Title 18 which provides that each application shall include the following information; (a) the identity of the author authorizing the application and in 4 (d); the identity of the person authorizing the application must be in the judge’s order, the wire intercept order. In all of these cases --
Warren E. Burger: Mr. Solicitor General, the order would name in this sequence at that time the Assistant Attorney General of the civil, of the Criminal Division or who would be the named person?
Robert H. Bork: The -- in every one of these wire intercept order, some 500 of them, Mr. Wilson’s name appears, Criminal Division, because of this memorandum and forums that were used in the department. There is no -- all of the cases involved what we call the Will Wilson issue because of that formal letter going out. Only some of the cases involved the question of the delegation by Mr. Mitchell to Mr. Lindenbaum of the authority.
Byron R. White: Well how did this happen Mr. Solicitor General? It just happened, this is the way things happen to work out, nobody caught it?
Robert H. Bork: Nobody caught it. In fact Mr. Justice White when we caught -- when the department caught the delegation problem because litigation arose of it, the delegation from Mr. Mitchell to Mr. Lindenbaum, they corrected that. They didn’t look at the other form and that continued until litigation began over that form.
Potter Stewart: Mr. Will Wilson?
Robert H. Bork: Right. And the -- these forms -- this was a new statute, when Mr. Mitchell started to apply it working with the statute, hadn’t been used before and that there --
Potter Stewart: It turned out that your department, hasn’t it?
Robert H. Bork: The -- some of this relevant positions had been propositions, had been, yes, Mr. Stewart.
William J. Brennan, Jr.: Mr. Solicitor, I see if I get this clearly. 18 U.S.C. 2518 (1) (a), I think that’s the one you just referred to, isn’t it?
Robert H. Bork: Yes.
William J. Brennan, Jr.: That each application, that means the application to the judge, does it not?
Robert H. Bork: That is correct Mr. Justice Brennan.
William J. Brennan, Jr.: And that shall include, shall include the following information: (a) the identity of the investigative or law enforcement officer making the application and do I understand that none of these applications accurately identified the investigative or law enforcement officer making the application?
Robert H. Bork: No Mr. Justice Brennan, they did identify that man, that was the trial attorney, or the investigator.
William J. Brennan, Jr.: Right.
Robert H. Bork: But they did not invest -- they did not correctly identify the officer --
William J. Brennan, Jr.: Officer authorizing.
Robert H. Bork: Authorizing the application.
William J. Brennan, Jr.: None of them did?
Robert H. Bork: That is correct.
William J. Brennan, Jr.: So that at least on the face of the statute, none of these applications complied with that provision of the statute.
Robert H. Bork: That is correct.
William J. Brennan, Jr.: Right.
Potter Stewart: In other words, the facts are that Will Wilson never authorized one of these and never signed the letter.
Robert H. Bork: Will Wilson certainly never signed the letter and the best that can be said about the authorization procedure is that if delegation is permissible in this area, point that I would come to, he had delegated on the way up the power to approve the application to his deputies, two deputies, Mr. Peterson and Mr. Shapiro and they did approve them on the way up. When the memo came back down, Mr. Wilson made no operative decision and neither did his deputies at that stage.
Potter Stewart: Well, one or the other -- the deputies would put his signature on it with a rubber stamp or make some [Inaudible]
Robert H. Bork: I don’t - - I think whether the -- used the stamp or facsimile, I don’t know, but they did put on --
Potter Stewart: Or write out his name as over his signature?
Robert H. Bork: That’s correct.
Warren E. Burger: In effect this was following the practice that is routinely done with ordinary letters every -- day-to-day as distinguished from applications to a court?
Robert H. Bork: Oh! Yes. In fact that there are many as I intend to state, there are many cases in which delegations of this sort or authorizations to [Inaudible]. In the case of Mr. Wilson, when the memorandum came back down, I believe it’s quite clearly a ministerial act at that stage and the only problem, there’s no question about the authority to put on the name, the only problem is that when it -- when the letter goes out that way, the attorney in the field tells the Court that Mr. Wilson made the operative decision when in fact Mr. Mitchell made it.
William O. Douglas: It is hardly ministerial to describe the issue in some of the [Inaudible]
Robert H. Bork: No, I only meant with that Mr. Justice Douglas was that the fact that somebody else signed Mr. Wilson’s signature, I think was ministerial. The fact that the signature should not have been there as the person authorizing is not ministerial, that’s more substantive.
William O. Douglas: Because what you said brought me up rather sharply because in -- when I was in the executive branch, this was a recurring problem that we never dreamed to delegate anybody, deciding the subpoenas in your name?
Robert H. Bork: Mr. Justice Douglas, I don’t think there was any delegation of a signing of subpoenas.
William O. Douglas: Well this is -- we’re getting at the same thing.
Robert H. Bork: Had the --
William O. Douglas: They're collecting evidence.
Robert H. Bork: Had the letter said, this letter was only notifying the trial attorney, had the letter said, the Attorney General has authorized this as was the case and had Mr. Peterson signed Mr. Wilson’s name to a statement that the Attorney General authorized it, I don’t think there would have been any problem, that would have been a ministerial act. The problem is --
Potter Stewart: If the Attorney General had authorized?
Robert H. Bork: That’s correct. Now, the problem is, the identification of the authorizing officer, not the affixing of the signature. Not the question of which person affixed the signature.
Byron R. White: So the order that came back down from the Attorney General actually did say, you are authorized to notify it, didn’t it -- isn’t it?
Robert H. Bork: It said Mr. Justice White that you are specially designated to act in this matter for the purpose of authorizing the application. Pursuant to the powers conferred on me by Section 2516, you are hereby specially designated to exercise those powers for the purpose of authorizing the trial attorney to make the above described application.
Potter Stewart: And that was a communication from the Attorney General to Attorney General Wilson.
Robert H. Bork: That is correct.
Byron R. White: And the --
Robert H. Bork: They were --
Byron R. White: The fact was that at stage, the Attorney General has already approved it and in effect it was an order to Wilson to go ahead and approve it himself, I suppose?
Robert H. Bork: That’s correct.
Thurgood Marshall: Is there any way in the world that the judge could know that Mr. Lindenbaum had approved it and not the Attorney General?
Robert H. Bork: Not unless inquiry was made Mr. Justice Marshall as it --
Thurgood Marshall: But there was a reason for them to make that --
Robert H. Bork: No, they would not. I think however --
Thurgood Marshall: What you’re actually doing, you were telling the judge that either Mr. Wilson or the Attorney General approved this.
Robert H. Bork: Well, the fact --
Thurgood Marshall: And in fact the executive assistant was doing it.
Robert H. Bork: Well, in some cases the executive assistant was doing it, Mr. Justice Marshall.
Thurgood Marshall: That’s the one -- those are the ones I’m talking about.
Robert H. Bork: But the -- in no case was the judge told that the Attorney General did it. He was always told that Mr. Wilson did it.
Thurgood Marshall: It would -- Mr. Wilson wasn’t doing it?
Robert H. Bork: No. Even in the case when the Attorney General was --
Thurgood Marshall: Mr. Wilson was doing what Mr. Lindenbaum told him to do with Mr. Mitchell’s signature.
Robert H. Bork: That is correct Mr. -- that is correct. There is no doubt about it, that some of these cases, but I might say that Mr. Justice Marshall, I think that’s not an uncommon situation in which the Attorney General delegates certain functions that are specified by statute as being Attorney General’s functions. And often, nobody knows that in fact the operative decision was made by someone other than the Attorney General.
Thurgood Marshall: Well, I don’t know whether that happens so often. I hope it doesn’t happen so often when you are interfering with people's rights of privacy etcetera?
Robert H. Bork: Well, Mr. Justice Marshall, I intend to discuss at some length of fact.
Thurgood Marshall: Okay, go ahead.
Robert H. Bork: No, I won’t answer it now, to -- I didn’t mean to put a -- I didn’t mean to put it off. I just meant to indicate my answer which is that I think nobody’s right of privacy was interfered with in these cases in any way. These were all cases in which every Fourth Amendment right was observed and in which in fact Mr. Lindenbaum applied Mr. Mitchell’s policy and nothing would have changed had Mr. Mitchell been there. Same interceptions would have occurred. The same findings of probable cause would have been made.
William J. Brennan, Jr.: And yet I suppose Mr. Solicitor General what this will come down to, is being as you opened in the statement a statutory matter is what significance did the Congress attach to that provision requiring that the application identify the officer authorizing the application, doesn’t it? Not withstanding all of this, if the Congress had a purpose for making that requirement and that purpose s not satisfied by these procedures --
Robert H. Bork: Well, --
William J. Brennan, Jr.: -- depending on everything you’ve said that I spoke -- I expect to – it is still a statutory violation, isn’t it?
Robert H. Bork: No.
William J. Brennan, Jr.: Well, I mean it doesn’t -- you may not concede it but that’s what the issue comes down to?
Robert H. Bork: The issue comes down to that, certainly Mr. Justice Brennan. I think it’s neither a statutory violation particularly in the case of the delegation from Mr. Mitchell to Mr. Lindenbaum nor do I think there is any case in the statute or elsewhere for suppression of the evidence.
William J. Brennan, Jr.: Well, I gather --
Byron R. White: When even if it’s a statutory violation.
Robert H. Bork: That is correct.
William J. Brennan, Jr.: But I gather, when you get to whether or not it was a statutory violation, you will address don’t you that report of the -- the Senate report in which -- in the dealing with this requirement, the emphasis was on the lines of responsibility leading to an unidentifiable person?
Robert H. Bork: I think --
William J. Brennan, Jr.: (Inaudible) this provision itself should go a long way for guaranteeing that no abuses will happen?
Robert H. Bork: I think indeed -- I will come to that and indeed in terms of the delegation by Mr. Mitchell to Mr. Lindenbaum, I would contend that the statutory purposes are carried out precisely. There is a unitary policy. It was established by Mr. Mitchell and Mr. Lindenbaum understood it and carried it out very well and in fact the Attorney General was responsible and there has been no question about fixing the responsibility to him.
William J. Brennan, Jr.: It may not but behind the scenes, that’s quite true. But the question is whether what was before the judge at the time of the application satisfied that requirement of the statute?
Robert H. Bork: That -- yes sir, Mr. Justice Brennan, that is the 2518 (1) and (4) (d) question. I was addressing the --
William J. Brennan, Jr.: I beg your pardon?
Robert H. Bork: -- 2516 question but --
William J. Brennan, Jr.: To the effect of the court.
Robert H. Bork: Let me come to the -- I suppose since these cases are so general in their impact, I need not perhaps detail particular facts of this case and how it happened in the Giordano case. Mr. Lindenbaum did authorize the first application. When the time came seven days later, I believe it was for the extension order, Mr. Mitchell was back in the office, saw what had been done and signed and authorized the application for an extension. One could see I think ratification in that, but the issue is far more general than simply this one case. Although I heard that when one case but not others, but let me -- the issue is quite general. The issue of Mr. Mitchell’s delegation to Mr. Lindenbaum, the 2516 (1) case affects 60 cases with 626 defendants. The issue of Mr. Wilson being identified as the authorizing officer which is the 2518 issue affects 159 cases with 1433 defendants.
Potter Stewart: Are those neutrally exclusive or is the --
Robert H. Bork: No, they overlap Mr. Justice Stewart, I was about to say all of the Mitchell, --
John Paul Stevens: And the latter include the former?
Robert H. Bork: Yes. All of the Mitchell-Lindenbaum cases are also, Wilson, a few cases so that the outside figure is 1433 defendants in these organized crime cases. There are 525 applications for orders which are at stake. In fact 2 years work of organized crime section is at stake in these cases. I’ve said that the procedures here are no longer in use. I should say that up until -- when this was recognized as an issue, there would be in litigation, they moved immediately to a case where the Attorney General made the authorization. The paper shows he made the authorization and the Court has told that. Recently, special delegation -- special designation has been made to Mr. Henry Peterson, the Assistant Attorney General in charge of the Criminal Division and he is now making the authorizations. We argue this case a little bit in reverse of what would seem to be usual order. That is we usually argue, we didn’t violate a statute, but if we argue suppression. We argued suppression first in this case not because of any particular doubt about the or feeling of weakness about the statutory argument because as we looked at it we felt the weight of this case is not our desire to sustain these procedures for the future. They are of no value. They were accidental procedures that came about by the way the memorandum were drafted. The weight of this case is the preservation of all of these prosecutions against defendants as to which they Government feels it has a very good case and that is why we argued the suppression point first to indicate what the Government perceives as the importance of these cases. I confess that I find it difficult to see any case for the suppression of vital evidence and accurate evidence in this class of cases. I think I have sufficiently --
William O. Douglas: Well, the statute provides for it, doesn't it?
Robert H. Bork: I think not Mr. Justice Douglas. I think the statute does not provide for suppression and --
William J. Brennan, Jr.: Well, what does that provision 2515, whenever any wire or oral communication is intercepted, no part of the content of self-communication and no evidence derived there from, may be received in evidence in any trial before any court, disclosure of that information would be in violation to this chapter.
Robert H. Bork: That is quite --
William J. Brennan, Jr.: That’s the provision, isn’t it?
Robert H. Bork: I don’t think that’s the operative provision. No sir.
Potter Stewart: 2518 can, the other --
Robert H. Bork: That is correct. The disclosure provision goes back to in violation of the subsection and so forth and I think you finally have to as the Court of Appeals recognized, you have to go to 2518 (10) to see what will sustain a motion to suppress. And any aggrieved person may move to suppress on the grounds that; (1) the communication was unlawfully intercepted, the Court Below said that that applied here. (2) The order of authorization or approval under which it was intercepted is insufficient on its face and the Court in the Fourth Circuit said that that applied here. Now, I don’t think those provisions can be read. The first provision I think can -- the communication was unlawfully intercepted most certainly cannot be read to say that if any provision of this Title was deviated from in any way a suppression is called for because it’s an unlawful interception. If you read it that way, there would certainly be no reason to have two or three that the order is insufficient on its face or that the interception is not made in conformity with the order because those are all violations of the statute too. And further more, it would be very easy to draft a statute, to say anytime you deviate, the evidence is suppressed. That is not what was done. I think when you look at the legislative history on page 39 of our brief, we quote the Senate Report. In page --
William J. Brennan, Jr.: Which of these cases is that?
Robert H. Bork: This is in Giordano, Mr. Justice Brennan.
William J. Brennan, Jr.: Thank you. 39?
Robert H. Bork: 39. We quote the Senate Report, it is quoted also on page 29 of respondent Giordano’s brief but I think the passage quoted in that brief cuts off both the – trivial too soon. The provision, Section 2515 must be read, the Senate Reports says, “In light of Section 2518 (10) (a),” which is the point we have just been making. “It largely reflects existing law.” Then further down it says, “There is no intention to change the attenuation rule nor generally to press the scope of the suppression rule beyond present search and seizure law.” I think that reading of legislative history supports the statutory analysis I have just suggested that if you look at 2518 (10) (a), one obviously means the communication was unlawfully intercepted. I think that means under present search and seizure law, it protects Fourth Amendment values. It extends Fourth Amendment values in one respect because it extends them to grand jury proceedings and so forth where the Fourth Amendment might not otherwise apply. Now, I don’t think the misidentification of Will Wilson as the person who made the operative decision nor the delegation in some cases to Sol Lindenbaum can be made into a Fourth Amendment value and therefore I don’t think the first point here can conceivably be used to suppress the evidence of these cases. If you go on to the second point, it says the order of authorization or approval under which it was intercepted is insufficient on its face. The Court of Appeals said a rather peculiar thing I think. It said that once you realize that Will Wilson didn’t make the authorization which you find out by holding an evidentiary hearing, then you’re entitled to take his name out of the order, that leaves the blank in the order and at that point it becomes insufficient on its face. I don’t think that’s the meaning in law of insufficiency on the face of the order. That order was not insufficient on its face. It recited a man who could have been and was specially designated and the order was valid on its face. I don’t know how one can find the facial invalidity by holding a hearing to find out if the underlying facts are true.
Warren E. Burger: Are you saying that that test must be made by assuming the truth and accuracy of everything that’s in the paper -- on the paper. It is nevertheless deficient, if that’s the word of the statute, insufficient on its face?
Robert H. Bork: That’s right Mr. Chief Justice. I think one has to look at it -- I think what this too is, is obviously a back stop to one. The -- (1) Says of communication was unlawfully intercepted. (2) Says insufficient on its face. That means that the man who receives the order is to go out and conduct the wire interception. If he looks at the order and he sees that it’s wrong on its face, he’s got no business going forward, he had to go back and find out why it’s wrong. And that of course, (3) is the -- he must follow the order. So I don’t think --
Potter Stewart: The three, no Court has held the three, isn’t out here?
Robert H. Bork: No, no. That’s correct Mr. Justice Stewart. No Court has said the three is involved here. I can’t understand the facial invalidity argument. Respondent's brief in the Giordano case cites some cases which do not seem to me as I read and to discuss the on its face language, but in fact are cases that say that you may hold an evidentiary hearing to find out that a witness who swore to probable cause, factual and probable cause was not the right witness or did not have the facts and so forth, the cases I think which are totally in apposite to the construction of this language in the statute about invalidity on the face of it. I think that when one gets away -- Oh! I should add I think that this reading not only comports with standard statutory analysis and what the indication of legislative intent that we have, it also makes common sense because of the criminal penalties for wrongful disclosure and because of the civil liability or wrongful disclosure. It seems to me that we’re talking about Fourth Amendment values privacy in those areas and that’s what the suppression provisions are talking about which are not involved in this case.
Potter Stewart: Probably there are good many other provisions in the statute which are restrictions and limitations and conditions limiting the circumstances under which wiretapping can be or -- can be lawfully carried on in addition to the ones we’re talking about here. For example, let’s take for example 18 United States Code 2518 (1) (c), the exhaustion requirements as I think about it, I would -- do you have to -- there has to be a statement to the Court that all other reasonable means have been tried and have failed or have an explanation of why they had not been. Now, let’s say that that was put in conclusionary form that looked all right to the Court but turned out to be absolutely false, concededly false that no effort had been made and no other effort. This was just a lazy person who wanted to intercept the telephone conversations. What do -- wouldn’t your argument mean that that -- there would be no sanction for that either. There could be suppression because that’s not constitutional at all?
Robert H. Bork: No. But -- Mr. Justice Stewart I think I would not exclude the possibility that in cases of willful misleading of a court, this Court might care to use its supervisory powers.
Potter Stewart: Well, I’m talking about -- I’m really not talking about supervisory powers. Well, I’m talking about the meaning of 2518 (10) (a) (1) that the communication was unlawfully intercepted and then your point as I gather it is that unlawfully means unconstitutionally. That may oversimplify your point, but that’s basically it, as I gather it?
Robert H. Bork: I think so Mr. Justice Stewart. That’s the core of the point.
Potter Stewart: Right.
Robert H. Bork: That would not exclude the possibility of that in a case where the investigator you mentioned --
Potter Stewart: Just had been exhausted although he said he did but that -- then it became clear --
Robert H. Bork: They did an intention --
Potter Stewart: One or another that he hadn’t. Let's say he was in good faith. If he thought he’d had exhausted, he read this and he looked out at it, he said any fellows, eyewitnesses to that crime and nobody was and he thought that was enough of an exhaustion.
Robert H. Bork: If it was in good faith Mr. Justice Stewart, I think I would -- I think I have to say that --
Potter Stewart: Your argument --
Robert H. Bork: The suppression provisions do not apply to it.
Potter Stewart: That’s what I thought your argument would lead to. Only --
Robert H. Bork: Congress could apply them at any time.
Potter Stewart: Oh! I understand that but -- so your point really is that unlawfully means unconstitutionally, isn’t it?
Robert H. Bork: In terms of the statute, Mr. Justice Stewart --
Potter Stewart: It may apply 2518 (10) (a) (1).
Robert H. Bork: In terms of the statute I think Mr. Justice Stewart that is probably correct. I think I would like to reserve the possibility that a willful violation of the statute might be read either under one as a reason for suppression or that the Court might use its supervisory powers.
Potter Stewart: Well, my question was directed to one, to the statute.
Robert H. Bork: I think I would like. If I may to reserve the possibility that willful violation of the statute, one that was done with the bad motive to achieve a result that could or what would be achieved.
Potter Stewart: Or you must lead the Court --
Robert H. Bork: Yes, to achieve a result that couldn't otherwise be achieved. I should point out that --
Potter Stewart: To get the issuance of a warrant that otherwise have -- wouldn’t and could’ve had issued.
Robert H. Bork: That’s correct.
Potter Stewart: Knowingly.
Robert H. Bork: That’s correct.
Warren E. Burger: As to number one Mr. Solicitor General, would that embrace a situation where the United States Attorney in the field or his assistant just went out and placed the tap without any authority from anybody, would that be --
Robert H. Bork: Oh! That would certainly Mr. Chief Justice be a violation of one.
Warren E. Burger: Now the -- yes. That would be one of the kinds of things that would be under number one --
Robert H. Bork: Or a case in which the probable cause was absent.
Warren E. Burger: No authority whatever. Well, I was starting from the [Voice Overlap] --
Robert H. Bork: Yes, certainly Mr. Chief Justice that is certainly true.
Warren E. Burger: And then there would be a spectrum of situations --
Robert H. Bork: Well, there are wide varieties of situation in which this would apply.
Warren E. Burger: -- under -- this would all fall under number one.
Robert H. Bork: Correct Mr. Chief Justice. For example, I would think failure to minimize the number of interceptions, failure to terminate when you got the evidence that you’re suppose to get. I think those are all cases which would come under number one. There are a great many of them. I don’t think the situation we have here today is, unless one reads number one to say that any deviation from any provision of the statute requires suppression and I don’t think one can read it that way.
Potter Stewart: What were these -- what are the sanctions then? What is the sanction for it? This – that's assuming and I know you don’t concede but let’s assume that these were violations of the statute. What are the sanctions?
Robert H. Bork: Well, I think they lie primarily with Congress.
Potter Stewart: Well, Congress has enacted this law and said what they’d wanted to take place.
Robert H. Bork: That’s correct.
Potter Stewart: That the Congress has done its job.
Robert H. Bork: Mr. Justice Stewart, what I meant by that was that if the Congress wishes to add a sanction that’s where the sanction should come from. Should the Government, it is quite conceivable that should the Government having once realized that its procedure, well I’m unassuming now for the sake of argument that procedures are deficient, should the Government once realized that those procedures are deficient and continue with the process then I think I would have no particular difficulty in saying that a Court faced with that kind of Government intransitives ought to apply as a supervisory matter, suppression.
Potter Stewart: Well, Congress here wasn’t concerned really with the -- with good faith. It was primarily concerned with limiting the conditions and circumstances under which there could be a wiretap or a wire interception.
Robert H. Bork: That is correct.
Potter Stewart: And these are just dead letters that if there’s no sanction.
Robert H. Bork: Mr. Justice Stewart I don’t think --
Potter Stewart: Even if they’re -- even if the violations are in all good faith, whether the violations of the kind involved in the cases now before us or the violation of the kind that I suggested under 2510, whatever it is -- 2518 (1) (a) -- (1) (c), no exhaustion, Congress said there cannot be even if it should -- must not be wire interceptions until all other means have failed for example and under your view, they're -- they're just -- will continue to be such interceptions if you get --
William O. Douglas: In that connection, when cases come here from the state courts it’s traditionally been the argument that the remedy, the sanctions are [Inaudible] and prosecute the policemen, or the man, criminal for doing this unlawful taps or secondly the citizen who send your -- sue under 1983 for damages, do you think if those alternatives would be available here?
Robert H. Bork: If as a willful disclosure of a kind that the statute forbids Mr. Justice Douglas, there isn’t.
William O. Douglas: How about violations of a procedure, for generating the search?
Robert H. Bork: No I doubt Mr. Justice Douglas that I would think that the delegation from this -- I’m sure I would think that the delegation from Mr. Mitchell and Mr. Lindenbaum does not generate either criminal or civil liability and I think the misidentification of Mr. Wilson does not generate either of those varieties --
William O. Douglas: Then Justice Stewart was right to get down to those sanctions and unless its suppressed.
Robert H. Bork: Well Mr. Justice Stewart -- I mean Mr. Justice Douglas, if I may say -- I may say the sanctions have been specified by Congress and the fact that they did not specify this sanction, I think ought to mean something as well as the --
Potter Stewart: Well, it means these words are just precatory?
Robert H. Bork: They are precatory with, if I may say, one exception. It seems to me that the Courts do have supervisory powers and if its willful or if it continues once its been -- once it has been ruled that these procedures are not adequate then they’re no longer precatory. This Court would have the power at that stage to begin the suppress not under the statute.
Potter Stewart: Then you -- your argument is the statute would not have been -- it would not be under a one or two?
Robert H. Bork: That is correct.
Potter Stewart: Right. Or three?
Robert H. Bork: That is correct.
Warren E. Burger: Do you think the statute would have a different meaning Mr. Solicitor General if now calling your attention first to 2518 where all the language is mandatory shall be made in writing, shall the state the applicant’s authority, shall include the following. Having that in mind and then dropping down to (10) (a), instead of reading as it does now, any aggrieved person may move to suppress. Thus the statute had read that any evidence obtained in -- not in conformity with the following paragraphs, one, two and three shall be excluded from evidence for all purposes. Do you think my hypothetical statute that I’ve just tried to construct would be a different statute form one that was written?
Robert H. Bork: No Mr. Chief Justice, I do not. It seems to me that the grounds for suppression would remain the same. It would be different only --
Warren E. Burger: Now, but this does not anywhere in the statute to say anything about what the Court shall do. It says what the party may do. The party may move to suppress. That certainly gives an implication that the Courts -- this isn’t an idle gesture and that the court is going to entertain the motion. Now, what is the range of the judge’s discretion when that motion is made in your view?
Robert H. Bork: In my view Mr. Chief Justice, if a communication was unlawfully intercepted in the sense that we’ve been talking about, I doubt that the judge has any discretion.
Warren E. Burger: Well, then how about number two?
Robert H. Bork: Oh! I would think he had no discretion there either. If the order is insufficient on its face I think the evidence must be suppressed and should -- and the order should not have been followed by the man who went out and apply the device to the wire.
Potter Stewart: Therefore it would have been an unconstitutional tap?
Robert H. Bork: Well, that is correct.
Potter Stewart: With an insufficient warrant?
Robert H. Bork: And if he doesn’t follow the terms of the order, I think it must be suppressed as well.
William J. Brennan, Jr.: Well, Mr. Solicitor General, do you -- are you suggesting that 2518 is to be read without reference to 2515?
Robert H. Bork: No Mr. Justice Brennan, I think if 2518 (10) (a) as we just read in the Senate Report here a moment ago on page 39, was it -- its -- what they say -- the Senate said that 2515 must be read in the light of Section 2518 (10) (a). I think 2518 (10) (a) is clearly the implementing.
William J. Brennan, Jr.: But 2515 is certainly explicit, isn’t it?
Robert H. Bork: Not terribly Mr. Justice Brennan.
William J. Brennan, Jr.: Well, I don’t think this statute is certainly is a model of clarity by any means, and like any of us who had to wrestle with it, but we think so but at least 2515 is susceptible, isn’t it? And the interpretation, no evidence derived there from, maybe received in evidence, any trial before any court that the disclosure would be in violation of this chapter?
Robert H. Bork: Well, one has to discover then Mr. Justice Brennan what disclosure would be in violation of this chapter and then you get back to the suppression provisions.
Warren E. Burger: But it does incorporate into the statute, the judicially constructed exclusionary rule, does it not?
Robert H. Bork: Oh! Yes.
Warren E. Burger: No question about that.
Robert H. Bork: No question Mr. Chief Justice but I think the 2515 point is important because you only know what disclosure Mr. Justice Brennan, is in violation of the statute by knowing what may not be disclosed. That is what may -- must be suppressed.
Byron R. White: Well, once you decide what that is, what is unlawful then you get to your point that the -- if you decide it’s unlawful, there's no discretion. You must suppress it.
Robert H. Bork: I think so.
Byron R. White: Under -- because 2515 said so.
Robert H. Bork: That is correct.
Byron R. White: Your argument is not 2518, 2515 says, it must be suppressed, right?
Robert H. Bork: I think that’s correct.
William O. Douglas: Your Argument Solicitor General it seems to me that if the man is is not in the prison, it has echoes of the harmless error argument. Everything you say, there’s nothing -- they violate the statute that it was -- in an irrelevant, immaterial way?
Robert H. Bork: Well, Mr. Justice Douglas I think there is an echo in that particularly as to the Will Wilson misidentification issue. I -- but I’m but -- it is a harmless error for this reason. No constitutional rights were violated. No wiretaps occurred that would not otherwise have occurred. The evidence is accurate, there’s no question here of convicting the innocent with evidence that maybe inaccurate. And there was no deterrence function to be served at this time. These are abandoned procedures, the Department of Justice is not going back to them. There was no purpose in them in the first place except a mix up under memorandum. And indeed were there to be a ruling that the procedures were inadequate, it seems to me that it would be every reason in the world to rule that -- that ruling had prospective application only. So, there’s no deterrent function and that would’ve -- that would adequately serve any deterrent function there was.
Warren E. Burger: In this respect do you, distinguish it all between what we might call this, the Lindenbaum authorizations and those actually made by the Attorney General but which Mr. Wilson did not in fact act upon. Is there any difference in your mind?
Robert H. Bork: I don’t think in this connection Mr. Chief Justice that I would make any. We had -- the Department of Justice had excellent reason to believe that Mr. Mitchell had the power and the lawful right to delegate this to Mr. Lindenbaum and perhaps I should address that for the moment because this certainly goes --
Warren E. Burger: Before you do for a moment. Is it -- the strength of your argument that if in fact the Attorney General who had the power did make the decision that the confusion about Mr. Will Wilson is irrelevant because the Attorney General had greater power, since he was the source of the power, it has made no difference, is that?
Robert H. Bork: Mr. Chief Justice, essentially that if the Attorney General himself made the decision and through this confusion about memorandum, Mr. Wilson’s name got sent out when it shouldn’t have, it seems to me that that’s error, it seems to be that it shouldn’t happen, but I certainly if anything is harmless error that is -- there is certainly no reason to say that a judge who has found all the constitutional elements, probable cause, need for wire interception, failure of other techniques and so forth would have turned down the application had he been told that the Attorney General, rather than the Assistant Attorney General has authorized it. So I can’t -- it seems to me that that’s utterly harmless error. But on the Lindenbaum-Mitchell delegation which I think is the next question that follows from the question you just asked Mr. Chief Justice, I think it’s clear, now I’m now moving from the argument that there is no case when a suppression of evidence. And if there were a case, it should be perspective only to the argument that in fact the statute was complied with in major respects, in the major respects. The purpose of Section 2516 (1) which is the Section that governs -- that says it must be the Attorney -- the Attorney General may authorize or specially designated Assistant Attorney General is stated in language in the Senate Report which is quoted on page 54 of our brief in the Giordano case and the purpose is to centralize policy to get uniformity of policy and to have a publicly responsible official. I think both of those purposes were completely satisfied when the Attorney General said, “When I’m unavailable, Mr. Lindenbaum you know my policies, you are directly in the Attorney General’s office. You work with me everyday, when I’m unavailable you go ahead and act.” That is, that purpose is served. You have centralization, a unity of policy and you have Mr. Mitchell responsible. Now, the question is whether the statute forbids that delegation. I think rather clearly it does not forbid that delegation. You have as we pointed out in our brief at page 60 and this is by no means our only reliance. The general delegation statute for the Department of Justice, 28 U.S.C. Section 510, it gives the Attorney General power to authorize others to perform any function of the Attorney General and the law generally allows delegations of this sort. We have cited a series of them at page 53 of the brief. You have Title III, the same statute we’re dealing with here, 18 U.S.C. 2514 which is the witness immunity statute which is -- it’s given to the -- Attorney General is given the power to grant a witness immunity and it has been held that that function of the Attorney General, given to the Attorney General by the statute maybe delegated. You have I think an even clearer example in the second paragraph at the footnote on that page, in the case of Jay against Boyd construing 8 U.S.C. 1254, a statute which says that the Attorney General “may in his discretion” suspend the part -- deportation of any alien. That language seems to me to imply even more than the language in the statute we’re examining. That it is a personal decision of the Attorney General and that -- yet this Court has held that that statutory power maybe delegated and in Kleindienst against Mandel which is quoted at the bottom of that footnote, the Attorney General was given discretion which was in fact in that case exercised by the Immigration and Naturalization Service. He delegated it. So that Mr. Mitchell and Mr. Lindenbaum were operating against the background of statutes was a general delegation statute and specific other statutes giving the Attorney General the power or the duty to do things which had been delegated in which delegations have been upheld in the past.
Potter Stewart: Your argument would be very convincing if the sta -- if this statute now before us had simply said the Attorney General. But when it adds or any Assistant Attorney General specially designated by the Attorney General does detract from the argument that there’s an inherent delegation of authority to delegate to other people.
Robert H. Bork: I think it does Mr. Justice Stewart and I think to this extent. I think there’s a limitation obviously but I think the limitation is best read as to the office, the immediate control of one of these two officials. And I say that because we have two examples in our brief on page 57 and page 58 in which this same Congress had provided a couple of months before that something must be done by the Attorney General or the Deputy Attorney General which parallels the language we’re talking about and then Congress went on and said, “Which function may not be delegated?” Now, when you compare that with the language here, I think Mr. Mitchell and Mr. Lindenbaum had a right to say, here as an Attorney General and a Deputy Attorney General, just is in the statute, Attorney General and Assistant Attorney General. In the civil rights act they say it may not be delegated, in this statute they don’t say it which I think gave them a right to think that some delegation within the office was possible. Again, the Federal Food, Drug and Cosmetics Act which we discussed on page 50 has the same kind of language about the Secretary Health, Education and Welfare. There -- and I should say one more thing, if you look, if one looks at the 2516 (2), we see that Congress clearly allows hundreds of state prosecutors to authorize these applications and in fact, in the legislative history which we quote in the brief, it says the question of whether the state officer may delegate, State Attorney General may delegate will be controlled by the law of delegation of the state. Now, that takes the heart out of this argument that Congress was so concerned that the Attorney General himself had to involve himself from the minutiae of every application for a wire interception order.
William J. Brennan, Jr.: Didn't the draft of this statute, Mr. Solicitor General would have authorized the United States Attorney to make the application?
Robert H. Bork: It was a draft of that sort.
William J. Brennan, Jr.: And I gather the -- it was justice that came in and said, it was Mr. Miller wasn’t it that preferred it limit to the Attorney General or an assistant designated by him?
Robert H. Bork: That’s correct. That’s correct and I think he suggested that and I think when one looks at that against the law of delegation and the su -- and the law of no delegation which Congress had worked out, I think it's quite clear that they’re talking about the Attorney General and his immediate office and any Assistant Attorney General in his immediate office and I think the state cases indicate the same policy.
William H. Rehnquist: Well, might not Congress had felt all that, in the case of the states that was pretty much as matter for the states to decide for themselves but in the case of the federal government, they wanted to lay down more stringent standards than they were willing to impose on the state?
Robert H. Bork: Mr. Justice Rehnquist, it seems to me that that would be a very curious result in the state in that way because what that would mean is that Congress was really not terribly concerned about unitary policies of any kind. They were more suspicious of the Department of Justice of the Federal Government than they were in the proliferation of state and local and county governments across the nation. I think the purpose Congress had was in unifying policy, they did not mind delegations so long as the policy was unified and you could identify the man who was responsible even though it delegated it. I think it’s true in the State Government, I think that’s true in the Federal Government under standard delegation law that we’ve just discussed.
William H. Rehnquist: Well of course then it's virtually an abandonment of the notion that you don’t -- that you want to identify the man, to say so, he can delegate it so long as his signature appears because presumably in the most elaborate bureaucracy in the world, the headman signature appears on the thing before it goes out?
Robert H. Bork: No, no, when I said delegation Mr. Justice Rehnquist, what I meant was this statutes says to the Attorney General, unless you designate an Assistant Attorney General, you are the man to be held responsible and we want uniformity of policy and that is accomplished when he takes a man as executive assistant whom -- who has done 50 or 60 of these applications and says now you know my policy, when I’m unavailable, act, tell me when I get back. And it seems to me that that is consistent with what we mean by, it limits the scope of delegation, it keeps the thing within a narrow campus. It seems to me, given the state, the way Congress treated the states, it’s the much more realistic reading of the Congressional policy.
Thurgood Marshall: [Inaudible] Mr. Will Wilson?
Robert H. Bork: I beg your pardon?
Thurgood Marshall: Why he didn’t give Will Wilson an authority while he was out of town?
Robert H. Bork: Mr. --
Thurgood Marshall: After all, Will Wilson was approved by Congress, wasn’t he?
Robert H. Bork: Oh! Yes, Mr. Justice Marshall.
Thurgood Marshall: And Mr. Lindenbaum was not.
Robert H. Bork: That is correct Mr. Justice Marshall.
Thurgood Marshall: I don’t mean Congress, I mean the Senate. What I mean, it was a approved officer?
Robert H. Bork: That is correct.
Thurgood Marshall: And you -- why I think your answers would have been better if he had done it but it’s not wrong the way he did it and that --
Robert H. Bork: As a matter of fact, I think it might have been better Mr. Justice Marshall the way he did do it because the Attorney General did not want to designate any Assistant Attorney General to exercise this operative -- to make the operative decision. He thought he had in Mr. Lindenbaum and in fact, he did have in Mr. Lindenbaum, a man who would follow his policies exactly, and act only when he was unavailable.
Potter Stewart: Alter ego.
Thurgood Marshall: Well, I -- are the Deputy Attorney General that go over run around loose over there?
Robert H. Bork: [Attempt to Laughter] Well, it varies from time to time Mr. Justice Marshall. Deputy Attorney Generals?
Thurgood Marshall: Assistant Attorney General?
Robert H. Bork: That run around, you mean are there irresponsible Assistant Attorney Generals?
Thurgood Marshall: Yes, of course there are, the Attorney General, aren’t they?
Robert H. Bork: Yes, but not in day-to-day contact.
Thurgood Marshall: They don’t -- they carry out the policy of the Attorney General.
Robert H. Bork: They do indeed Mr. Justice Marshall. I think --
Thurgood Marshall: Oh! When you carry out the policy, didn’t he participate that in many of these cases as Mr. Lindenbaum did?
Robert H. Bork: Mr. Wilson?
Thurgood Marshall: Of course he did.
Robert H. Bork: No, apparently, Mr. Wilson had very -- one might say minimal involvement in any of these cases.
Thurgood Marshall: Who did? Who was his deputy?
Robert H. Bork: His deputies were Mr. Peterson, Mr. Shapiro were greatly involved as the memorandum were going up, they approved them. But the operative decision was Mr. Mitchell’s except in those cases where he was unavailable and then it was Mr. Lindenbaum carrying out Mr. Mitchell’s policies and I think Mr. Mitchell thought that that was greater control over the decision than it would have been had he designated --
Thurgood Marshall: And when he went away he says on other things, you take over too, assuming that?
Robert H. Bork: Oh! The executive assistant acts in many ways for the Attorney General on routine matters when he understands the Attorney General’s policy in many cases which is another reason, pardon me, which is another reason why they thought this was perfectly acceptable.
Warren E. Burger: You spoke of a special unit handling these matters. Was that a special unit apart from the Criminal Division or within the Criminal Division?
Robert H. Bork: Within the organized crime section of the Criminal Division.
Warren E. Burger: Well now is that -- are you suggesting that that had a certain autonomy and that they were functioning in this special field on their --
Robert H. Bork: No, Mr. Chief Justice, they didn’t have any autonomy in that sense.
Warren E. Burger: Autonomy, I’m speaking, autonomy from the regular staff line of command of the Criminal Division.
Robert H. Bork: No, not autonomy Mr. Chief Justice, they were specialized and it was their specialized function to make the initial review of these matters before sending it up the hierarchy through the Criminal Division but they had no autonomy. Thank you.
Warren E. Burger: Mr. Smouse.
H. Russel Smouse: Mr. Chief Justice and may it please the Court. In the Giordano case the Court has confronted with compounded violations of Title III, specifically Sections 2516 (1) and 2518 (1) (a) and (4) (d). As for the Section 2516 point, the fact is that on October 16, 1970, Francis S. Brocato, an Assistant United States Attorney for the District of Maryland submitted to Chief Judge Northrop of the United State District Court for Maryland, an application for an order authorizing the interception of wire communications on the telephone of my client, Dominic Nicholas Giordano. Attached to the application as exhibits were a “Will Wilson letter” to Mr. Brocato and the affidavits of two agents of the Bureau of Narcotics and Dangerous Drugs. The Will Wilson letter evidences the fact that Mr. Brocato had requested authorization to apply for the wiretap order, this request having been made to then Attorney General John N. Mitchell. Although the request had been directed to the Attorney General, the record submitted in this case shows that it never was reviewed by the Attorney General himself, but that his initials had been placed on the authorization memorandum by Mr. Sol Lindenbaum, his Executive Assistant. This authorization memorandum had then been dispatched to Assistant Attorney General Will Wilson or the Office of Assistant Attorney General Will Wilson purportedly designating Mr. Wilson to authorize the application to be presented to the United States District Court for the District of Maryland. The record in this case and in the case of murder in the evidentiary hearing held before Judge Merchants (ph) in the Southern District of Florida, evidences the fact that the Attorney General had never specially designated any of his Assistant Attorneys General to issue wiretap authorizations. It is also uncontested that the Will Wilson letters indeed were never signed by Mr. Wilson, not in this case nor indeed in any of the host of cases which have arisen in this series of litigation. There was subsequent to the application for a wiretap order, application for an extension order dated November 6, 1970, some 21 days after the original application. I believe the Solicitor General indicated perhaps some seven days after the original application, the Attorney General had become familiar with the operative facts. The affidavit of Mr. Lindenbaum indicates that some 21 days later, the Attorney General authorized the application for an extension. Included within that application for extension was another Will Wilson letter and an additional affidavit from agent Abraham Azaon (ph) of the Bureau of Narcotics and Dangerous Drugs. On review of the Azaon affidavit, it is to be noted that the operative facts setting forth probable cause are those investigative details and intelligence which developed pursuant to the original wiretap. The Government I believe in its brief indicates that the Azaon application reasserts the facts that was set forth in the original application, indeed, they do not. It merely states I reassert without specifying what those facts were, the fact set forth in the original application, indeed, it is an incorporation by reference type approach. I would ask this Honorable Court to look critically at the particular facts in the case at hand as indeed I suspect they are at perhaps some variance from the facts which the Government indicates in its brief developed at some subsequent point in time with regard to checking with the Attorney General and apprising him of the facts after the fact. As for the Section 2518 point, it must be noted that not only did Mr. Wilson not sign the letter, he indeed never saw any of the papers in this case nor indeed did the Attorney General prior to the application for the extension order. Mr. Wilson testified as I indicated before at the evidentiary hearing in the Southern District of Florida in the Marder case, at which time he stated he did not know that the Will Wilson letter was being submitted to United State District Courts around the country. In fact, he testified the “did not know exactly what was made of them.” He did not know that Mr. Lindenbaum was signing the Attorney Generals initials to authorization memos. He did not know that anyone other than the Attorney General, in fact, was authorizing wiretaps. I would submit to this Honorable Court that this suggests a rather amazing lack of communication within the Department of Justice. This incredibly loose procedure led the late Judge Sobeloff to conclude in his opinion below and I quote “If Judge Northrop had been aware of the real status of the application, that neither Mitchell nor Wilson even knew of it and that the application had been approved and initialed JNM by Lindenbaum, we are certain that he would have refused to permit the wiretap.” The sequence of events here involve I submit constitutes the “elaborate paper charade” which the United States Court of Appeals for the Ninth Circuit condemned in the King case. It is significant that where the violations herein question have been shown to exist in combination, the vast majority of Federal Courts have found a violation of 2516 and have decreed suppression as the remedy. In addition to the Giordano case in the Fourth Circuit, there is the opinion of course of the Robinson Court in the Fifth Circuit, the per curiam opinion in the Robert’s case in the Seventh Circuit, the opinion of the Ninth Circuit in the King Case and the opinion of the Court of Appeals for the District of Columbia in the Mantello case. In addition, to the --
Potter Stewart: And all of the -- excuse me, go ahead.
William J. Brennan, Jr.: I just want to know, are any Court of Appeals, the other way?
H. Russel Smouse: The Pisacano case Mr. Justice Brennan, in the Second Circuit which was later followed although I must say I don’t feel embraced by the opinion in the Becker case, Judge Friendly wrote -- Chief Judge Friendly wrote the opinion in Pisacano, Judge Mansfield wrote the Becker opinion.
William J. Brennan, Jr.: But it’s only the Second Circuit.
William H. Rehnquist: Did it happen --
H. Russel Smouse: The Second Circuit, is the only Circuit that I am aware of Mr. Justice Brennan to the contrary.
William H. Rehnquist: Did Robinson ever come out en banc from the Fifth Circuit?
H. Russel Smouse: It did Mr. Justice, not en banc. It was remanded for an evidentiary hearing after the en banc hearing. It went back to the Southern District of Florida. The evidentiary hearing was conducted in the Marder case and I gather the case is now pending in the Fifth Circuit again.
William H. Rehnquist: But there was an appeal of the Court of Appeals, the Fifth Circuit en banc in Robinson?
H. Russel Smouse: The original opinion resulted in a petition for rehearing. Rehearing was conducted en banc, remanded for an evidentiary hearing to the Southern District of Florida in the Marder case.
Potter Stewart: My question was, we’ve just -- we’ve just -- while you’re already interrupted, you said that all of these courts with the exceptions you’ve now noticed -- noted have decreed suppression. Have all of them without exception relied on 2518 (10) (a) or have they done it in the exercise of -- the purported exercise with some supervisory power?
H. Russel Smouse: In reliance on 2515 and 2518 (10) (a).
Potter Stewart: So they’ve held, more accurately they’ve held that the statute compels suppression, correct?
H. Russel Smouse: That is precisely correct. In addition to the Circuits which have so held, a number of District Courts in other Circuits, specifically two Courts I believe in the Third Circuit and courts in the Sixth Circuit have ruled in like manner.
Warren E. Burger: In other words, your case, to be sure I have it absolutely clear, withstand independent -- independently even if there was no such thing as the doctrine of exclusion of evidence.
H. Russel Smouse: Yes Your Honor, we feel that the remedy here --
Warren E. Burger: The Statute has prescribed the remedy, is your case --
H. Russel Smouse: That is correct Mr. Chief Justice. We feel that Title III is self executing as to remedy. The Robert’s Courts speaks of the persuasive reason -- reasoning of Judge Sobeloff in Giordano. Indeed Giordano seems to be the case most frequently looked to for guidance, most frequently cited and whose language is most frequently adopted by other Courts. The Court’s have with overwhelming consistency really viewed the 2516 defect as a substantial violation. With this background in mind, I would like to turn to Section 2516 with the rationale for that Section and speak to the Government’s contentions concerning the Section. Judge Sobeloff in his opinion below effectively lays to rest the alter ego theory which has with recurring predictability been advanced by the Government. Judge Sobeloff stating in pertinent part, “the alter ego theory is open ended. It need not stop with Lindenbaum but could be extended with an equal claim of validity to anyone within or without the Department of Justice. In determining who qualifies as an alter ego, it would permit side stepping the Congressional mandate, fixing the level of those who maybe designated to authorize applications.” Senate Report 1097 is instructive wherein referring to Section 2516 (1), it is stated and I quote this language which has earlier been referred to by I believe Mr. Justice Brennan but which I feel bears repeating, “This provision centralizes in a publicly responsible officials subject to the political process, the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid the possibility that divergent practices might develop, should abuses occur, the lines of responsibility lead to an identifiable person.” The legislative history of course speaks to identifiable person and not an identifiable office. In the first Robinson case, the Court after noting this --
Warren E. Burger: Well, let me get that last. It does lead to an identifiable office, does it not?
H. Russel Smouse: I submit it does not Your Honor. Identifiable persons speaks of that individual either --
Warren E. Burger: Well, the incumbent, whoever is the incumbent of that office is the identifiable person, is he not?
H. Russel Smouse: He is --
Warren E. Burger: Whoever is, the Attorney General --?
H. Russel Smouse: Yes, he is Mr. Chief Justice, the Attorney General.
Warren E. Burger: So it’s an identifiable office in terms of which changes, in terms of the incumbency from time to time.
H. Russel Smouse: That is correct Mr. Chief Justice. I submit to what the Senate reflects in this legislative history is that they are speaking though of the person either in the position of Attorney General or one of his Assistant Attorneys General who has gone through the process of senatorial confirmation. The Senate obliged to exercise this degree of supervision shall we say or restraint over exercise of the awesome power of wire surveillance.
Warren E. Burger: Could the Attorney General have under this statute lawfully designated all of the Assistant Attorneys General?
H. Russel Smouse: He could Your Honor.
Warren E. Burger: And Acting Assistant Attorneys General?
H. Russel Smouse: I cannot speak to acting Assistants, I’m not sure that they receive, they have gone through the --
Warren E. Burger: They do not.
H. Russel Smouse: They have not gone through the confirmation process I would say no to that Mr. Chief Justice.
Warren E. Burger: Where in the statute do you find this limited to those confirmed by the Senate?
H. Russel Smouse: In the legislative history, actually Senate Report 1097, where it speaks to official subject to the political process and I submit that means the confirmation process, that is the rationale really of the Fifth Circuit in the Robinson case wherein that court noted by expressing its intention that only a publicly responsible official subject to the political process could initiate a wiretap application. Congress wanted to make certain that every such matter would have the personal attention of an individual appointed by the President and confirmed by the Senate.
Harry A. Blackmun: Then you would also exclude an acting Attorney General?
H. Russel Smouse: I would Your Honor unless he had as I believe Mr. Clinding has been confirmed, I believed he had been confirmed as deputy.
William J. Brennan, Jr.: Well, how about the last acting Attorney General, Mr --
Warren E. Burger: The present Solicitor General.
Harry A. Blackmun: Who was confirmed as Solicitor General but not as Attorney General.
H. Russel Smouse: He has been tested by the political process.[Laughter]
Warren E. Burger: Mr. Smouse, is it essential to your case that that be that -- the standard. Is not the Deputy Assistant Attorney General where they have one as much subject to the political process in the sense that if the Assistant Attorney General is dismissed, leaves or resigns, the Deputy Assistant Attorney General is there at sufferance. Are not all the political, the truly political appointees whether appointed by the President or by the Attorney General, are they not at all responsive to the political process?
H. Russel Smouse: Yes Mr. Chief Justice, they are involved in the political process --
Warren E. Burger: Only the --
H. Russel Smouse: But they have not been Senatorially confirmed and I feel that Senate meant --
Warren E. Burger: No, the statute doesn’t say anything about Senatorially confirmed. You draw that from the legislative history.
H. Russel Smouse: I do Mr. Chief Justice.
Warren E. Burger: But you got it from the language, the political language but surely a Deputy Assistant Attorney General selected whether by the Assistant Attorney General himself or by the Attorney General, but in fact appointed by the Attorney General is politically responsive is the sense of that legislative history, is he not?
H. Russel Smouse: I submit Mr. Chief Justice that that confirmation is what the senate had in mind.
Warren E. Burger: Where do they particularly say that?
H. Russel Smouse: They do not say it. I fell that is inherent in the language of the legislative history and I feel that the interpretation placed on that history by a number of lower courts which have looked to the problem is --
Warren E. Burger: Each division of the Department of Justice has one, two or possibly three exempt positions at the top echelon, does it not?
H. Russel Smouse: I believe that is correct Mr. Chief Justice.
Warren E. Burger: And you say they are not embraced within this political process? There’s something less than political but different from career?
H. Russel Smouse: A stamp of approval has not been placed on them by the Senate in an area where the Senate wanted great care exercise in the authorization of wiretap surveillance.
Warren E. Burger: Then, to pursue Mr. Justice Blackmun’s inquiry a few moments ago, if you had a period where you had an acting Attorney General appointed under a recess appointment, who might act for quite a while as some have, you would be immobilized under the statute.
H. Russel Smouse: That would easily be met Mr. Chief Justice had his predecessor designated an Assistant Attorney General to exercise authorization in this area and the Congress --
Warren E. Burger: Wouldn’t you -- wouldn’t the Government immediately run under the proposition that when a principal ceased to hold the power all his agents fell with him?
H. Russel Smouse: I think not Mr. Chief Justice, I feel that if the Attorney General had exercised the foresight here to designate the man chosen to head the Criminal Division to authorize wiretap applications obviously, there would not be this host of cases before the Courts. Provision for delegation was made so that the Government could operate in an effective fashion in the area of criminal investigation and in utilization of wire surveillance. It merely required some delegation within that authorized for the statute and easily enough, the Attorney General could have designated one his assistants and the acting Attorney General who might succeed him would have the benefit then of a person properly designated. This Honorable Court in Gelbard through Mr. Justice Brennan writing for the majority made the following significant comment concerning Title III in noting that act sets forth and I quote, “An approval that may not be given except upon compliance with astringent condition,” citing 18 U.S.C. 2516 and 2518 (1) through (8) obviously and admittedly the Gelbard case did not involve any of the issues here before the Court but I feel that language is helpful and instructive. The courts I submit in the better reason cases speak in terms of 2516 being enacted as a necessary safeguard as expressed in the following language in King. The Act in its legislative history may clear the purpose of the authorization requirement 2516 (1), Congress was well aware of the grave threat to the privacy of every American that is posed by modern techniques of electronic surveillance. In order to insure circumspection in their use, Congress erected the elaborate procedural safeguards, then citing 2516. And as earlier been noted, the language of the statute authorizing but limiting the delegation evolved from the testimony of then Assistant Attorney General Miller, head of the Criminal Division. The responsibility theory which the Government has advanced in his brief in this case in which forums, the underlying rationale of Pisacano, we submit ignores the complete legislative history and ignores the specifically limiting language of Section 2516 and as I noted before, Judge Mansfield in the Second Circuit in writing in Becker expressed no great enthusiasm for the Pisacano holding where he stated, “We feel bound to follow Pisacano especially since it is so recent and the facts before the Court are indistinguishable. Our adherents to the law, the Circuit has thus established is not to be considered as an approval of the procedure followed by the Attorney General and his staff.” With regard to the general delegation of authority, Section 28 U.S.C. Section 510 would submit that as stated in our brief, normal rules of statutory construction reject the applicability of that general delegation of authority. Section 2516 is narrow, specific and limited in terms. Moreover, 28 U.S.C. Section 510 was in existence prior to the enactment of Title III. The Fifth Circuit in Robinson, I submit properly concluded that 2516 (1) was intended to act as a limit upon Section 510. Concerning the remedy, the statute itself in Sections 2515 and 2518 (10) (a) (1) and (2) mandates the remedy and it should be noted that the violation here is of considerable dimension. This is not an isolated case, not an incidental slip up. From the host of cases where the violations herein question have been framed, it clearly appears that for a substantial period of time disregard to the statutory safeguards of Title III in the area of authorization and identification were continuing and constantly recurring within the Department Of Justice. The Government seems to espouse this applicable -- the standard suggested by the American Law Institute. It's footnoted on page 41 of the Government’s brief where it is proposed that the application of the exclusionary rule be determined by the substantiality of the infringement involved. While as I noted before, we submit that the statute itself mandates the remedy and that we are not here dealing with the judicially framed exclusionary rule even looking at the test espoused by the government, it must be recognized that the course of conduct engaged in by the Department of Justice forded the clear requirements of Title III and the purpose of the Sections in question and the violation of them as I noted before was recurring and if quantum of impropriety is to be the applicable standard in this case then I submit that suppression must necessary follow.
Potter Stewart: You rely on the 2518 (10) (a) (1) or (2) or I guess the answer is you rely on both?
H. Russel Smouse: I would rely on both Your Honor. In fact Judge Sobeloff I believe spoke in terms of (2) and --
Potter Stewart: (2) and now the District Court in terms of (1), wasn’t it [Voice Overlap] --
H. Russel Smouse: The District Court in this case and the Veckerelli (ph) case turned it, yes Your Honor that is correct, actually turned on the 2518 violation. The Court of Appeals for the Fourth Circuit decided the case on the basis of the 2516 violation. We submit that, actually, what the government here proposes is that this Honorable Court ignored the plain language of the statute. The government moreover seems to fail to acknowledge the enormity of the violation involved and turns its argument or its approach on a proposition that the violations in question are not central to Fourth Amendment values and so sanction should be something less and suppression. I submit that neither the plain language of the statute or legislative history nor judicial interpretation would support this contention. This Honorable Court in Burger spoke in terms of protective procedures in the area of eavesdropping which of course would embrace wire surveillance, so as to ensure the protection of inherent Fourth Amendment rights. I would submit that we are here dealing with the right of conversational privacy. As noted in Scot, Title III represents the effort of Congress to meet the concerns expressed by this Honorable Court in Burger and Katz and to structure a limited system of wire surveillance and electronic eavesdropping within the framework of the Fourth Amendment and the guidelines of Burger and Katz.
Thurgood Marshall: That’s already been done, hasn’t it? Hadn't the Department of Justice already have done that?
H. Russel Smouse: They have changed and apparently corrected their procedures.
Thurgood Marshall: We don’t have to do that [Inaudible], do we?
H. Russel Smouse: No Mr. Justice.
Potter Stewart: Nothing in Burger or Katz that I can remember, you tell me if I’m wrong, said that in a federal case, the Attorney General or some specially designated assistant Attorney General had to approve it?
H. Russel Smouse: That is correct Mr. Justice Stewart, there is no such language in Burger and Katz.
Potter Stewart: And you don’t suggest that anything in the constitution requires --
H. Russel Smouse: I do not.
Potter Stewart: -- I take it as [Voice Overlap]
H. Russel Smouse: I do not. Burger as the Court well knows spoke in terms of protective procedures. Your Honor, I believe in Katz spoke in terms of appropriate safeguards. Congress cognizant of this express concerned by this Court for the need to embrace protective procedures, framed Title III in an effort to meet those concerns and to meet Congressional concern over a limited approach in this area. Again, if I may borrow from the language of Judge Sobeloff, rejecting the Government contention that suppression would be inappropriate, he stated and I quote, “This is a beautiful example of a bootstrap technique characterization with which judge Donahue in the Ninth Circuit readily agreed.” He goes on to say, “first, the Government minimizes the violation of the various statutory provisions, characterizing them as technical defects and then in typical bootstrap fashion postulates that for minor violations, there should be no sanctions. The defects in this case however go to the very heart of Title III.” The Senate Report dealing with section 2515 provides that this Section must be read in light of Section 2518 (10) (a). Again, the Gelbard opinion where Mr. Justice Brennan wrote for this Court is instructive in noting that indeed the Congressional findings articulate clearly the intent to utilize the evidentiary prohibition of 2515 to enforce the limitations imposed by Title III upon wiretapping and electronic surveillance. The Seventh Circuit in Robert’s meets the Government’s argument as to the drastic remedy of suppression by noting that 2515 and 2518 (10) (a) are patently clear in expressing the Congressional judgment that these intercepted communications may not be received in evidence. This whole area I submit is placed in perspective by this additional cogent statement by Chief Judge Bazelon in the case of In Re Evans wherein he said, “First, 2515 describes in the most sweeping possible terms of prohibition against the use of evidence tainted by an awful wiretap, but the Section gives no indication of a specific remedy. Viewed as a whole, however, Omnibus Crime Control Act does provide such a remedy. The motion to suppress authorized by 2518 (10) (a).” The no need to deter argument rejected in Robinson which is here again advanced by the Government is disposed of in the Vicky (ph) case in the following fashion. The Government claims that no real deterrent effect would result from suppression. However, we are not dealing with the Court fashioned exclusionary rule. What we have here is a separate statutory requirement which this Court has no authority to ignore. Judge Becker enunciated the potential problem in the Narducci case wherein he stated, “The necessity for strict compliance with the statute in a wiretap situation stems as much from the precedence setting example of condoning laxity which could lead to further laxity in years to come.” As for the 2518 point, I will defer to Mr. Hewitt, he’ll argue the Chavez case. However, I would note that in this area, the Congress intended if indeed it be a matter of form, that form be treated as importantly as substance. The implementation of this awesome authority, I submit, was to be treated in accordance with the statutory mandate. In our brief, reference is made to a course of conduct here engaged in by the Department of Justice as amounting to scheme of governmental trickery. On reflection, I submit and confess that this was too harsh a term to the extent that was too harsh a judgment, I apologize. But if use of so dramatic a term is inappropriate, I would submit that what we have here is of course of governmental inattention, indeed, what I submit does amount to governmental willfulness and governmental sloppiness of a quality mounting up to gross mishandling in a particularly sensitive area, the appropriate remedy for which must necessarily be suppression of all evidence obtained from the wiretaps in this and cases similarly situated. Thank you.
Warren E. Burger: Thank you Mr. Smouse. Mr. Hewitt.
James F. Hewitt: Mr. Chief Justice, may it please the Court. While the issues in Chavez involve both types of wiretaps here, the Sol Lindenbaum approved tap and the John Mitchell approved tap, since this Court granted the Government’s petition for certiorari limited to the issue of the tap purportedly approved by the Attorney General and the Chavez decision which based the decision as to that tap solely upon the application of 2518, I’ll try and limit my remarks to that aspect to this total problem, but there maybe some overlapping of necessity. I would submit to the Court that this issue is important for two reasons. First, it involves a very important question of Congressional intent in the enactment of this legislation that affects the very sensitive area in this modern electronic age. And secondly, the important issue is whether or not there has been compliance by the Justice Department with this mandate of Congress which surrounds virtually this authorization to engage in these authorized wiretaps. It’s obvious I think from the legislative history and certainly from the decision of the Ninth Circuit that the institutional decision was of some concern to Congress. Mr. Justice Marshal asked the question of how often do these institutional decisions happen and I think it’s fair to say that they happen often enough over the history of our Justice Department that Congress was concerned about it and wanted to make sure that these wiretap applications would not be the subject of institutional decisions, they would not be rubber stamped and they would not be handled by a subordinate members of the Justice Department no matter how knowledgeable nor how responsible they might be in the performance of their duties. It was for that reason that the legislative history is clear, that Congress wanted a responsible high ranking department official to make these decisions and recognizing that the Attorney General could not conceivably review and make these important decisions in every case, he was empowered to designate an Assistant Attorney General, a specifically identifiable officer within the department to act on these applications and make this decisions on his behalf. Now, the purpose of this was obviously to fix responsibility on this identifiable person so that in later years or should a wiretap become a gross abuse of discretion, or abuse of prosecuted discretion, that Congress and the public and the Courts could put their finger on that responsible individual and point the finger -- the responsibility to him. And for that reason, Congress made a rather unique provision in the statute that he be identified with particularity not only in the application but in the Court order itself. That he’d be identified in the reports that the District Judge must make within 10 days after the completion of the wiretap. That he’d be identified by the administrative officer of Courts and the annual report of the director and the annual report of the Judicial conference, so that this particular individual must be identified throughout the entire reporting scheme as the person who is responsible for the wiretap which bears his name. And of course, the way to get this information is to have him set forth with accurate particularity in the application and the order. Now, the statutory --
Harry A. Blackmun: Let me ask you just a technical question, whom do you represent here?
James F. Hewitt: I represent the respondents in Chavez, Your Honor.
Harry A. Blackmun: Respondents for --
James F. Hewitt: Well, I’m appointed to represent the respondent Apodaca but I’m appearing on behalf of the other respondents also.
Harry A. Blackmun: Even though your brief is restricted to George Apodaca?
James F. Hewitt: That’s correct Your Honor. He is the only one I was appointed by the District Court to represent.
Harry A. Blackmun: But you are positioning yourself as representing all of them here?
James F. Hewitt: Yes Your Honor. I believe there is correspondence in the file from some of the other counsels to that effect. The statute sets forth in essence a broader, a broader set of requirements than are customarily have found in the search warrants. It sets forth that there must be a finding of need for the wiretap. There must be a finding of probable cause and there must be this important prosecutor decision by this responsible officer. The mere fact that the District Judge need not pass upon the propriety of the prosecuted decision of the responsible officer, doesn’t make it any less and important prong of this protective device that Congress setup within the statutory scheme. The Court does have to find a need for the wiretap and that other methods are unlikely to succeed if tried and must find probable cause, but the Court relying upon the representations in the papers presented to it, must assume that a proper prosecutor determination that this is the kind of case that justifies this gross intrusion has been made and find that it has been made by a responsible officer as named in the statute and this is where the Courts were misled in this particular case. Now, the Government doesn’t seem to feel that’s a particularly important factor --
Warren E. Burger: Is it essential to your case Mr. Hewitt that the Court was in fact misled?
James F. Hewitt: No, I don’t believe so Your Honor because the statute wasn’t complied with if the wrong person was placed in.
Warren E. Burger: That’s the end if isn’t it? Whether the court was affected by that or whether it was not affected from your case, that’s irrelevant?
James F. Hewitt: It is unnecessary, but it certainly makes the violation certainly more --
Warren E. Burger: But even if you stopped before you got to what the Judge believed or what he thought he was acting on or what he relied on, you think you’d have your case in the same posture you have it now?
James F. Hewitt: Yes, we would Your Honor. And as a result --
Thurgood Marshall: And if the audit said that it was done by Will Wilson and a matter of fact, it had been done by John Mitchell?
James F. Hewitt: It would be bad Your Honor because it identifies the wrong person. When in later years someone wishes to put the finger of responsibility for the Chavez wiretap, they would go to the records of the Court, the records of the administrative office and Wilson would be the party responsible.
Thurgood Marshall: And they would do what to Wilson?
James F. Hewitt: They might say, “Wilson how dare you authorize this improper wiretap.” Mr. Wilson will say, “I didn’t sign that letter, it was signed by one of my subordinates.” This is exactly what Congress wanted to prevent.
Thurgood Marshall: I know, it’s not what I said. I said where the letter is signed by Wilson and it says that I have approved this. When as a matter of fact he had not approved this, but John Mitchell is courts to prove this.
James F. Hewitt: This is the position in the Chavez case Your Honor, that pretty much the status of the facts.
Thurgood Marshall: And that’s wrong for what reason?
James F. Hewitt: Because the order must identify the person who actually approved the wiretap.
Thurgood Marshall: Even though the subordinate signed it, the boss decided it?
James F. Hewitt: Yes Your Honor. It must identify the proper person. And the reason for this is so that this accurate information can you might say be disseminated to the interested parties, Congress and the public and certainly the District Judge who makes the determination. Because of this false letter, because of this letter bearing someone else’s signature purporting to be Will Wilson and purporting to state in the body of the letter that Wilson reviewed this file, that he carefully looked at it, that he determined that this is the kind of case that requires a wiretap, that I found probable cause, I found that other needs, I apply my experience and my position as Assistant Attorney General and I make this important decision. He represents this in the letter that wasn’t even signed by him. As a result of that, a false application is made to the District Court. The determination the District Judge makes to order the wiretap, to authorize it as based upon a false representation. False information is incorporated into the Court order which the Judge signs in this file. It causes the District Judge to make a false report to the Administrative Office that Wilson had authorized this tap. It causes the Administrative Office to make a false report in its annual report which is subject to public scrutiny. The entire scheme is false because this letter is not true. Will Wilson was not designated to authorize the tap nor did he ever see the file.
Warren E. Burger: And if an application were presented to a District Judge Mr. Hewitt, which recited the correct facts, that is that this in detail, that this application was signed by Mr. Sol Lindenbaum on behalf of, note that Mr. Sol Lindenbaum acting for the Attorney General authorized Mr. Will Wilson to make this application.
James F. Hewitt: I don’t know --
Warren E. Burger: Do you think -- you think that would not comply with the statute?
James F. Hewitt: I don’t think so.
Warren E. Burger: And the District Judge might look at the statute and say, “You can’t do this with Mr. Lindenbaum, whoever he may be,” says the District Judge out in California.
James F. Hewitt: Yes.
Warren E. Burger: Now, on the other hand, if it correctly recited, this application was authorized by the Attorney General of the United States by his designation of Mr. Will Wilson, would you think the District Judge would be misled in the same way?
James F. Hewitt: If the --
Warren E. Burger: Or does not the greater authority of the Attorney General swallow the lesser authority of any Assistant Attorney General?
James F. Hewitt: No, and for this reason Your Honor. Nowhere in this case does John Mitchell say that he ever saw this file, that he ever reviewed or he did more than authorize it. Will Wilson says, “I have carefully reviewed the file. I had exercised my discretion. I make this finding, I make that finding, I’m satisfied.” If Mr. Mitchell signed this letter saying, “I personally as Attorney General have reviewed this file and made these determinations then I think the District Judge must rely upon those determinations.” But here, the District Judge rightfully and justifiably believed that these decisions were made by Will Wilson, the Assistant Attorney General who says he reviewed the file and made these important decisions. And this is simply, I urge Your Honors, it isn’t simply the finding of probable cause indeed. I think the prosecuted decision as to whether or not this is the type of case that justifies a wiretap is a very important one and I think the legislative scheme shows that there was not to be a rubber stamp, a blanket authority to tap any telephone. Only those phones that the Attorney General or a responsible designated assistant finds to justify this intrusion maybe used and I think that’s one of the important decisions that the District Judge was misled on as to who might have made that decision. Now, the government takes the position that that’s not a particularly important facet to the statutory scheme and I would submit to you Your Honors that it is very important. That it's important in the sense that from the Congressional Record on August 11, 1969, Chairman McClellan summarized the first year of operation unto the Omnibus Crime Bill and he stated that apparently, and I call the Courts attention to page 23, 24-0, Chairman McClellan says apparently, “the prosecutor screening process is in fact having a healthy effect on the number of orders applied for and thus granted. Indeed, it appears that a majority of the 167 applications that were approved for submission to the New York Courts were not approved in their original form.” He states also, “I would suggest that the application should be more complete on their face. Our thought was that mandating prosecutor involvement in the warrant process which strengthened it by guarantying that that decision to use these techniques would be preceded by a careful law enforcement screening process. Apparently, this practice is being meaningfully followed in the majority of cases.” He further states, “Prosecutors on whom the administration of the statute rests heavily should always carefully prepare and review these applications in light of the law. What may have been permissible under old practice is not necessarily legal now. I hope too that our judiciary even with crowded dockets is always taking the necessary time to examine and pass on all applications thoroughly. The part they must play in scrutinizing and questioning these applications as well as requiring strict adherence to the statutory standards cannot be over emphasized.”
Harry A. Blackmun: Have you cited that on your brief?
James F. Hewitt: No, I haven’t Your Honor, I found it just the other day.
Warren E. Burger: Could you make that available?
James F. Hewitt: Yes I will Your Honor. I’ll file this as a supplement to the brief. Chairman McClellan goes on, “I realize too that we’re dealing with a new reporting system as well as new legislation and I do not want to be overly critical. I do however want to admonish every law enforcement officer, prosecutor and judge involved in this area that the only way this legislation will be effective in combating crime is by strict adherence to the standards it contains.” And he further stated later that, “My purpose in making these remarks has been to help assure that this legislation will be in fact followed to the strictest letter of the law, both bringing criminals to book and protecting citizen’s privacy. That is the only way in which it can be utilized as an efficient tool in reducing crime.” He states as I’ve indicated, “my only concern at the moment is that the prosecutors in the Courts that has a responsibility under the statute would not become careless, but will remain firm in their determination to see that the statute is strictly followed. If the statute is strictly followed, it is certainly not to be expected that any unnecessary invasion of privacy will result.” I think this is the undercurrent -- that underlies this legislation is that there are these strict requirements. These important decisions by prosecuting officers are an integral part of the scheme to set in motion a rather unique modern type of invasion of a citizen’s privacy. So I would say Your Honors that if the decision of the prosecutor in this case, either the Attorney General or the Assistant Attorney General is important and the information concerning who made that decision is of equal crucial importance. The Ninth Circuit in the decision in Chavez relied solely upon Section 28 -- 2518 which is the deficiency of the order, in effect holding that order that misidentifies the approving officer is the same as an order that would leave that information blank, and therefore, it would be defective on its face. I would submit to Your Honors that if the decision of the Ninth Circuit in Chavez is affirmed, of course, that would take care of the Giordano matter as well, since not withstanding whether Mr. Lindenbaum was or was not authorized if the -- as the Ninth Circuit held in Chavez, if the order itself is defective and thereby vitiating the entire validity of the wiretap, then both Chavez and Giordano will fall accordingly and that would be our protective position with respect to the second prong, the Chavez prong of the argument.
Potter Stewart: Were there pen registers involved in your case?
James F. Hewitt: Yes Your Honor.
Potter Stewart: And do they require as I understand that all that they reveal is the numbers called from a particular phone?
James F. Hewitt: Yes Your Honor. I think pen registers have been held not to be a --
Potter Stewart: And not covered by the statute?
James F. Hewitt: That’s correct.
Potter Stewart: That they are -- on the other hand that you needed the cover by the constitution in the Fourth Amendment, are they not?
James F. Hewitt: Yes Your Honor, I think the statutory scheme for pen registers is adequate in this particular case. They were not the subject of the motion -- they were the subject to the motion of suppress in the District Court but were not before the Court of Appeals necessarily as an issue before the Court of Appeals. Our -- the decision in Chavez parallels the District Court decision in Giordano under the name Focarelli (ph) where the District Judge in Giordano took the position that the orders itself were invalid and therefore the tap was initiated. This reasoning was adopted in Chavez which was considered with the King case which applied the same reasoning as before the Court in Giordano in these pair of cases.
Warren E. Burger: I don’t recall now Mr. Hewitt too clearly, did Judge Duniway of the -- for the Ninth Circuit would rely on both 1 and 2 of Section 10?
Byron R. White: Did he rely on a confirmation?
James F. Hewitt: It’s a little unclear.
Byron R. White: 2515 and --
Warren E. Burger: And 2518?
James F. Hewitt: Yes, and --
Warren E. Burger: But I’m talking now about the subdivisions of --
William O. Douglas: 1, 2 and 3?
Warren E. Burger: 1, 2 and 3 that the communication was unlawfully intercepted. Judge Sobeloff did not track the District Judge’s inclusions in this respect, that is he put them, this is on number 2 as I recall.
James F. Hewitt: Yes.
Warren E. Burger: And I’m just wondering, did Judge Duniway have a bracket to whole area?
James F. Hewitt: No, I think Judge Duniway was considering that probably it applied to both --
Byron R. White: Both unlawful.
James F. Hewitt: -- both unlawfully intercepted and perhaps --
Warren E. Burger: And --
James F. Hewitt: -- valid on its face.
Warren E. Burger: 1 and 2.
James F. Hewitt: Two. I would disagree with my co-counsel or associate, Mr. Smouse to one extent. I think perhaps if the Court were to find that the statute was not broad enough to cover this, certainly there would be an inherent power on the part of this Court to remedy this by fashioning a supervisory rule. I think even though not -- even though there’s no constitutional point involved, I would see no prohibition on this Court in excluding this evidence on the basis that there must be some sanction for failure to comply with the strict statutory requirements.
Warren E. Burger: Well, assuming hypothetically that 2518 (10) (a) (1), (2) and (3) did not by implication cover this; certainly, Section 2515 is explicit, is it not?
James F. Hewitt: Yes, it is Your Honor. And I would point out that the legislative history indicates that it was the intent that 2518 (10) are pretty much set forth those grounds upon which traditional search and seizure concepts have led to the suppression of evidence and here in a situation like this, a search warrant affidavit that had this same defects, a misidentification of the affiant certainly if the Court has the inherent power to suppress that, the same rationale should apply to the orders and the application [Voice Overlap]
Potter Stewart: To suppress what, if the Court has the power?
James F. Hewitt: A search warrant affidavit that misidentifies the affiant. The case is cited in our brief.
Potter Stewart: Well, you -- but you're suggesting that some kind of a McNabb-Mallory --
James F. Hewitt: Yes Your Honor, some type of supervisory rule that would -- that would get the -- some sanction for non-compliance.
Potter Stewart: Even if we find its -- this isn’t covered by the statute?
James F. Hewitt: Yes, I think the statute covers it, but I’m not sure that that would be crucial to uphold the Ninth Circuit's decision. They were not that clear as to the rationale for the suppression, but certainly I think it's implicit and Judge Duniway’s opinion that this type of conduct is in conflict with the legislative history and certainly in conflict with the clear statutory language and there must be some sanction for its violation.
William H. Rehnquist: Do you think your case is stronger or weaker on respect to a judge made exclusionary rule in a situation like this where Congress has laid down statutory qualifications and then itself provided the circumstances under which there should be suppression or in a case like McNabb where simply Congress has enacted a statutory prohibition, has said nothing about suppression. Are the judges freer in one case than the other?
James F. Hewitt: I think the judges would be freer in this case because they can interpret the statute unlawfully intercepted in a broad fashion to include those same traditional defects that the Court would consider defect -- consider controlling in a typical search and seizure.
William H. Rehnquist: Well, then there really wouldn’t be any of our supervisory power, or just be a statutory interpretation.
James F. Hewitt: Yes Your Honor. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.