In The Pagan Science Reading Room: "Rights on Trial," Arthur Kinoy (1983)

Friday afternoon conspiracy theory --
Here's a refreshing change: The theory's author admits it's only a hunch. But it's a hell of a hunch.
"Few events have had as cataclysmic an impact upon the course of American history as Watergate. And yet no period remains quite so clouded, so little understood. To this day the true explanation for the extraordinary developments which rocked the country remains hidden behind the self-serving accounts written by the participants.
"There were moments, however, when the layers of camouflage were torn away and the underlying truth lay exposed, revealing a frightening reality which had brought the nation closer to the brink of disaster than any turn of events since the rebellion of the southern slaves states over a hundred years earlier.
"Such a moment of truth was the argument on February 24, 1972, before the U.S. Supreme Court of a case with the strange name of United States v. United States District Court for the Eastern District of Michigan...."

This is Arthur Kinoy's pretty good guess about how the case he argued -- and its unforeseen outcome at the Supreme Court -- lead to the discovery of the bugging of the Democratic National Committee in the Watergate Hotel.

The story is a bit involved, but I promise there's a payoff.
(And, by the way, stop us when anything in the historical summary sounds contemporary.)
The U.S. was fighting an unpopular war. Casualties were mounting. Police in the communities and wardens in the prisons coordinated efforts to chill First-Amendment-protected activities.
In the White House, plans were afoot to assert broad "inherent authority" for the Executive Branch. The president and his attorney general had already authorized uncounted hundreds of warrantless wiretaps.
In February, 1972, the solicitor general and the top lawyers at the Justice Department were ready to go to court in defense of the president's scheme. They wanted the illegal wiretapping to be made legal, the Executive Branch to be made supreme. They wanted the Supreme Court to sign off on its own demotion from co-equal branch of government to small claims court.
Under the government's theory in U.S. v. District Court, Congress, too was to be subordinate to the extra-powerful presidency.
At stake was not only the Bill of Rights, but the first three articles of the Constitution itself.
In the COINTELPRO era, the FBI routinely bugged the phones, homes, and offices of alleged "subversives" -- Black nationalists, anti-Vietnam-war activists, labor organizers, and more. If Federal indictments were brought, competent defense attorneys would just-as-routinely file discovery motions. The defendants and their lawyers suspected the bugs, the Feds denied it, and the judges believed the Feds. Any evidence obtained illegally would be admitted, which no chance of relief. Exculpatory evidence would remain hidden. It's still unknown how many folks went to jail like that.
One day in early 1970, this depressing pattern changed for the weird.
The U.S. Attorney in Detroit was prosecuting three White Panthers, anti-racist community organizers who mainly worked among urban, working-class youth. The charge was "conspiracy." One of the charges covered property destruction at a local CIA outpost, which was characterized as a massive terrorist outrage. The case was called U.S. v. Sinclair -- Sinclair being John Sinclair (think: The MC5, Fifth Estate, John & Yoko headlining a "Free John" rally, etc.)
Responding to defense motions, the government admitted that it had obtained evidence from a bugged phone, and that there was no warrant.
While defense lawyers and Judge Damon Keith sat open-mouthed, the government tendered an affidavit from the attorney general, John Mitchell. Mitchell swore that, on behalf of the president, he had the authority to order wiretaps without judicial approval to "protect the nation from attempts of domestic organizations to attack and subvert the government."
The government's position was that the defense wasn't entitled to transcriptions of or any information about the wiretaps.
Judge Keith read the Fourth Amendment differently and ordered the government to turn everything over. The government appealed and lost again. By 1972, the case was going to the Supreme Court.
By itself, this case might have been a weird wrinkle in turbulent times. When comparing notes nationally, though, progressive defense lawyers realized there was a pattern: Mitchell had done the same thing in the Chicago Seven / Eight trial and in a Black Panther trial in California. Something was up.
The attorneys came to a conclusion that shocked them: The Justice Department was strategically acknowledging illegal wiretaps in order to litigate the issue in the hope of winning. That is, the executive branch was challenging the judiciary to grant it extra-constitutional powers.
The lawyers were aghast not only at the arrogance -- and open authoritarianism -- of the government's position. They were afraid the government might win.
On to the Supreme Court
Arguing for the White Panthers and against the government was National Lawyers Guild luminary Arthur Kinoy. Kinoy knew he had a reputation for exaggerating to make a point, and he debated with himself (and co-counsel, including the straight-laced corporate lawyer representing Judge Keith) how far to go in blasting the government's case. He was still unsure when he stepped to the rostrum and the green light blinked. If he told the Justices that the Nixon administration was hatching a plot to abrogate the Constitution, would they roll their eyes and stop listening?
On the other hand, if he stuck to a point-by-point refutation of the government's case, would the technicalities nickle-and-dime him to death?
Kinoy went for broke. He said that two weeks previously, a Nixon official (Halderman, but Kinoy didn't name him in the argument) had claimed that the Democrats were "giving aid and comfort to the enemy." Under the government's scheme, such a designation would open even the loyal opposition political party to warrantless wiretapping by whoever held the White House.
As he made that argument to the Court, Kinoy imagined he heard his co-counsel behind him groan.
They had almost four months to wait for the decision.
Kinoy spent the spring of 1972 in bed with back pain and crushed by the certainty that he'd blown the case with his kooky exaggeration.
So, on Sunday, June 18, 1972, he was distracting himself by leafing through the Sunday New York Times when a strange little article caught his eye: "5 Charged With Burglary at Democratic HQ." The previous Saturday night, five well-dressed burglars with handfuls of eavesdropping gear had been busted breaking into the Democrats' office at the Watergate Hotel.
The investigation later revealed that the bugs had been successfully planted in late May. What were the burglars doing back in there a second time? They said that one of the bugs was faulty and they had gone back to fix it. But, as one of the police officers noted later, that only takes one guy.
The next day, Monday, June 19, 1972, Kinoy and the other lawyers were summoned to hear the Supreme Court's decision on the wiretapping case.
Three new Nixon appointees sat on the bench. The Republican civil-libertarian chief justice, Earl Warren, had retired. Things looked bleak. To everyone's astonishment, not only did the Court decide against the government, it did so unanimously. Illegal wiretapping would stay illegal. The government lawyers looked as floored as Kinoy felt.
And he felt something else. He couldn't prove it. In his autobiography, he doesn't claim certainty. If he'd been from another generation, he might have attributed it to his spider-sense tingling.
Supreme Court decisions are supposed to be strict secrets until they are announced from the bench. A leak from the Court to the White House about how the decision would come down would be highly improper -- and a tightly-kept secret.
It was just the timing of it all that struck Kinoy as odd. The Saturday break-in to remove the bugs, followed by the Monday decision, in which a court Nixon thought of as his own openly rebuked him and his bugging scheme.
Just a hunch, but a hell of a hunch, right?

Tags: politics, law, policy, history, Watergate, conspiracy, conspiracy theory, conspiracy theories, Sixties, John Sinclair, White Panthers, Black Panthers, The MC5, Pun Plamondon, Judge Damon Keith, U.S. v. District Court, Nixon, skepticism, Zombies

Comments

[jordan 1]

let's join our hands together to stop this kind of wrong doings. It may risk lives in the future if we just let them continue.

[red sole]

Cons - There have been some complaints by people who claim that the shoe can be destroyed easily. This is seen after vigorous activity.