I’d known from my research for American Original that the first big assignment of Assistant Attorney General Scalia in the Ford Administration in 1974 was an opinion determining whether Richard Nixon owned the tapes and documents sought by Watergate prosecutors. But I found on a recent trip to the Ford Library, where I obtained a declassified memo, that another early assignment was nearly as tricky.
In May 1974, U.S. Judge Gerhard Gesell, hearing the White House “plumbers” case, had ruled that the president lacks constitutional grounds to order break-ins without a warrant — arguably even for matters of foreign intelligence. Nixon administration lawyers had claimed a national-security exemption to the usual Fourth Amendment protection against such searches and seizures as they defended the 1971 break-in of the office of Daniel Ellsberg’s psychiatrist. This takes us all back to a tumultuous chapter in U.S. history, which led to the first-ever resignation of an American president. In this particular matter involving Scalia, the crucial element is that Gesell’s ruling challenged assertions by Nixon (and then Ford) about presidential power in national security and foreign affairs.
Scalia, nominated to be assistant attorney general for the Office of Legal Counsel by Nixon in spring 1974 and then approved by the Senate on Aug. 22, just after Ford had assumed the presidency, was asked for an opinion about the effect of Gesell’s ruling on the administration’s warrantless wiretaps.
In his memo dated Sept. 17, 1974, Scalia concluded that warrantless surveillance was still lawful based on a continued foreign-intelligence exception to the Fourth Amendment.
“While warrantless trespassory electronic surveillance in foreign intelligence matters has not been explicitly sanctioned by the courts,” he wrote, “it has not been explicitly forbidden in holding, or by authoritative dictum, or by necessary implication from holdings in other fields.” Scalia stressed that Gesell’s ruling did not outright eviscerate any foreign intelligence exception to the warrant requirement. And citing the views of recent former attorneys general and some congressional sentiment behind the 1968 crime bill, Scalia concluded, “it can reasonably be maintained that the President can authorize electronic surveillance in the conduct of necessary foreign intelligence operations, without judicial warrant even when a technical trespass is involved.”
Years later, Scalia told me in an interview when I asked him about the 1978 Foreign Intelligence Surveillance Act, which transferred secret wiretapping authority from the executive to a special court: “I had seen how [approval for secret wiretaps] worked under the executive, and it was not done irresponsibly.” He was against FISA but said, “given the times, it was inevitable.”
On the Watergate tapes question that Scalia first fielded, he wrote that the materials did indeed belong to Nixon. That was the view at the time of many Ford officials. As we know, however, Congress quickly reversed that opinion by passing a law to ensure that Nixon’s papers and Oval Office tapes were not turned over to him. The law directed the General Services Administration to take custody of the tapes and eventually open them to the public – which they have been now for years.