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Alito Urged Wiretap Immunity
The 1984 wiretapping memo involved a lawsuit filed against Nixon administration attorney general John N. Mitchell, who in 1970 had ordered wiretaps of antiwar activists. The FBI suspected the activists of plotting to blow up Washington utility tunnels and kidnap Henry A. Kissinger, then President Richard M. Nixon's national security adviser. The case had been in the courts for years, and it fell to Alito to prepare a memo on whether the government should ask the Supreme Court to review an adverse lower court decision.
Part of the job of the solicitor general's office, where Alito was an assistant, is to defend the interests of the executive branch, and the argument that the president and his top aides were entitled to absolute immunity was not a new one.
The Carter administration had taken that position in wiretapping cases stemming from the Watergate scandal, but the issue had not been clearly resolved by the Supreme Court.
In the 1984 memo to his boss -- Solicitor General Rex Lee -- Alito wrote that "absolute immunity arguments are difficult to advance successfully" and so "there is a need to choose our cases in this area with particular care."
The Mitchell case had several problems, Alito said. Justice William H. Rehnquist would have to recuse himself because he served in the Nixon administration, "a handicap we can ill afford in this difficult area." Moreover, Alito said, "our chances of persuading the Court to accept an absolute immunity argument would probably be improved in a case involving a less controversial official and a less controversial era."
The government, he said, should stick to a less sweeping defense of Mitchell -- that the law was not clear at the time he authorized the wiretaps and that therefore he could not be sued because he did not act in willful disregard of the law.
As it turns out, Alito was right.
The Reagan administration pressed ahead with its argument of absolute immunity, with Alito co-writing the brief. The administration argued that in the abstract it is easy to assert that "public officials who have deliberately flouted clearly established rights should be liable." But, the brief said, that could lead "risk-adverse officials" contemplating "ruinous personal liability" to falter when action was needed to protect the country.
The Supreme Court quashed the lawsuit against Mitchell, but it rejected a blanket shield for illegal conduct.
"The label of 'national security' may cover a multitude of sins," then-Justice Byron R. White wrote for the majority in 1985. "The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.''
The following year, Alito was asked to help bolster executive power on a different front. In a 1986, after being promoted to the Office of Legal Counsel, he sketched out ways for the president to weigh in on the meaning of a law the way Congress does when it builds a legislative history through hearings, committee reports and debate before it passes a bill.
The administration was concerned that judges were not strictly sticking to the language of statutes, instead relying on what various lawmakers had said their intent was.
While the plan probably "will not be warmly welcomed" on Capitol Hill, Alito said "it may help to curb" abuses.
The documents also show that Alito has experience preparing others for Supreme Court confirmation hearings, helping to troubleshoot Rehnquist's nomination to be chief justice in the summer of 1986.
In a memo dated July 28, one day before the start of the Senate Judiciary Committee hearing on Rehnquist, Alito provided defenses to three potential lines of questioning if Rehnquist were asked about $27,000 he had received for a book about his experiences on the high court.
Alito need not have worried. Rehnquist was confirmed without the money becoming an issue.