Mitchell v. Forsyth

LOCATION: We’ll Do Club

DOCKET NO.: 84-335
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 472 US 511 (1985)
ARGUED: Feb 27, 1985
DECIDED: Jun 19, 1985

David Rudovsky - on behalf of the respondent
Paul M. Bator - on behalf of the petitioner

Facts of the case


Media for Mitchell v. Forsyth

Audio Transcription for Oral Argument - February 27, 1985 in Mitchell v. Forsyth

Warren E. Burger:

We will hear arguments next in Mitchell against Forsyth.

Mr. Bator.

Paul M. Bator:

Mr. Chief Justice, and may it please the Court, in this case the Solicitor General represents former Attorney General John N. Mitchell in a lawsuit that was filed 13 years ago, in 1972.

During these 13 years the court system has been struggling to solve the question whether Mr. Mitchell should personally pay damages to the plaintiff because in 1970 he as Attorney General authorized a telephone tap on the phone of one Davidon.

This was in December, 1970, and this telephone tap lead to the overhearing of three conversations to which the plaintiff was a party.

Warren E. Burger:

Were those conversations the target at their inception?

Paul M. Bator:

Not specifically.

Davidon was the target of the tap, Your Honor.

Davidon was tapped because the FBI had information that there was an organization called ECCSL, of which Davidon was a member, which was planning to blow up the utility tunnels under the Federal Triangle here in Washington, D.C.--

There was also FBI information that ECCL members, including Davidon, had discussed the possibility of kidnapping Dr. Henry Kissinger, who was then Assistant to the President for National Security Affairs.

The District Court made an elaborate inquiry into the purpose of these taps, and explicitly found that they were installed in order to protect the national security by obtaining information and preventing these bombing and kidnapping activities.

And I refer the Court to the District Court opinion at 56 to 60 of the Appendix to our Petition, where the District Court makes it clear that the purpose was prevention, not prosecution.

Now, at the time these wiretaps were authorized, this Court's Keith case, which for the first time held that a warrant had to be obtained for wiretaps involving domestic national security concerns, that case had not yet been decided.

The Keith case, in which the Court itself stated that it was deciding a question of first impression, came down in '72, a year and a half after these wiretaps were placed and removed.

These wiretaps were placed on the basis of a legal position that had been maintained in an unbroken tradition by every Attorney General and every President for over 25 years.

Warren E. Burger:

Does it not go back even more than that?

Paul M. Bator:

My research, Your Honor, shows simply that it was... there are things in this record that indicate in 25 years--

Warren E. Burger:

One case, I thought, in either this Court or the Court of Appeals referred to a memorandum from Franklin Roosevelt to the Attorney General Jackson.

Paul M. Bator:

--That may very well be, Your Honor.

In the packet that we have, the first thing we have is from Attorney General Brownell.

The position was, the substance of the position was that the President did have constitutional authority without a judicial warrant to order electronic surveillances where he was acting to protect the national security against threats of domestic violence and terrorism.

At the time the Davidon tap was installed, that position had never been rejected in any federal court, and had recently been upheld in two Federal District Courts.

Now, of course that position was rejected by this Court in Keith, and this case is really one of a number of cases in which the Courts have been struggling with the question of what to do about pre-Keith taps, how do we untangle the question of what to do about these surveillances, that took place without a judicial warrant at a time when the legal situation was subject to fundamental uncertainty.

Sandra Day O'Connor:

Well, Mr. Bator, even if you are 100 percent correct on the qualified immunity question, what about the review of that at this stage, the appealability question, which seems to me to be a tougher question than the one on the merits?

Paul M. Bator:

Well, Your Honor, we agree, and I am happy to turn to it if you would like me to, although I do want to come back and say perhaps a word or two about the merits of the qualified immunity issue.

The appealability issue arises because the Court of Appeals held that a District Judge's rejection of a defendant's claim of qualified immunity does not at that point become appealable.

The defendant has to wait until the case goes to final judgment, that means usually after trial and after... after discovery and after trial, before he appeals.

The Courts of Appeals are simply divided three to three on this issue, and that is why we are here, and I have four, I think, simple points to make about appealability, Justice O'Connor.

The first one is about this Court's cases.

This Court's cases on appealability are not easily organized into a tidy scheme, but the cases do convey one central unifying theme, and that is that if postponing appeal until the end of the case would in some serious way undermine or subvert the policies of the very rule whose correct application is in question, then the considerations are very strongly in favor of immediate appeal if certain technical requirements, if the Court of Appeals is in a position effectively and definitively to decide the question at this point.