Kissinger v. Halperin

LOCATION: Railroad tracks

DOCKET NO.: 79-880
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 452 US 713 (1981)
ARGUED: Dec 08, 1980
DECIDED: Jun 22, 1981

Mark H. Lynch - on behalf of the Respondents
Wade H. McCree, Jr. - on behalf of the petitioners

Facts of the case


Media for Kissinger v. Halperin

Audio Transcription for Oral Argument - December 08, 1980 in Kissinger v. Halperin

Warren E. Burger:

We will hear arguments next in Kissinger v. Halperin.

Mr. Solicitor General.

Wade H. McCree, Jr.:

Mr. Chief Justice and may it please the Court:

This case requires this Court for the first time in the history of the nation to determine the extent of the personal immunity of the President of the United Stales and his closest advisors for money damages arising from the claimed violation of constitutional rights resulting from the performance of his official duties.

In Butz v. Economou, decided during the 1977 term, the Court held that although a qualified immunity from damages liability should be the general rule for executive officials charged with a violation of the Constitution, there are some officials whose special functions require a full exemption from such liability.

We submit that the President of the United States, the constitutional head of the second branch of government, is preeminently such an official, and that officers carrying out his express directions should be protected by an immunity derivative of his.

The facts in this case may be succinctly stated.

Between February and April, 1969, when the nation was engaged in armed conflict in Southeast Asia, the President and several of his top advisors were deeply concerned about unauthorized disclosures to the news media of confidential information, including foreign policy documents.

The President feared that the unauthorized disclosure of this material would jeopardize the Government's foreign policy initiatives, and would seriously undermine the confidence of our allies in our reliability about classified disclosures to us.

The nature of some of the unauthorized disclosures made the National Security Council a likely source of the security leaks.

Accordingly, the President met with the Attorney General, the Director of the National Security Council, and the Director of the FBI, to discuss remedial measures.

Upon the advice of the FBI Director, that electronic surveillance would be a method of discovering the source of the leaks, the President authorized the use of wiretaps.

The FBI Director prepared a list of officials in the office of the National Security Council Advisor who had access to documents similar to those that were released, and who possessed other characteristics that suggested that they might be likely sources of the unauthorized disclosures.

This list included the name of Dr. Halperin, principal respondent in this case.

The Attorney General approved the installation of a tap on the residence phone of Dr. Halperin and that was accomplished in May, 1969.

Summaries of information obtained from this disclosure were prepared and disseminated, ultimately through the Assistant to the President, Mr. Haldeman, another one of the petitioners, who would bring pertinent data to the attention of the President and to the Director of the National Security Council.

The tap failed to reveal that Dr. Halperin was the source of the leaks, and it was removed from the telephone on his residence in February, 1971.

Potter Stewart:

Was that 21 months after it had been installed?

Wade H. McCree, Jr.:

Yes, Mr. Justice Stewart.

Two years later, when Dr. Halperin learned of the tap, he, his wife, and children filed in the United States District Court for the District of Columbia this action, alleging that the wiretap was unlawful under the Fourth Amendment and under Title III of the Omnibus Crime and Safe Streets Act of 1968.

Petitioners, other federal defendants, and the telephone company were named as defendants and monetary damages, declaratory and injunctive relief, were sought.

After extensive discovery, petitioner's motion for summary judgment on the Title III claim... that's the Omnibus Crime and Safe Streets Act... was granted, and that issue is not before the Court in this appeal.

Potter Stewart:

I notice, Mr. Solicitor General, that the Respondents here are Morton Halperin, et al., and that's the members of his family?

Wade H. McCree, Jr.:

These are his wife and children, yes, Mr. Justice Stewart.

Potter Stewart:

And that's it?

They were the plaintiffs?

Wade H. McCree, Jr.:

They are the respondents.

Potter Stewart:

The plaintiffs were all Halperins?

Wade H. McCree, Jr.:

The plaintiffs are all Halperins.

They are respondents here.