The FBI’s Judicial Agenda

Reviewed by Cindy Adcock-Steffey

Vol. 15, No. 1, 1993, pp. 27-28

Cloak and Gavel: FBI Wiretaps, Bugs, Informers and the Supreme Court, by Alexander Charns (University of Illinois Press, 1992, xviii, 206 pages).

In Cloak and Gavel, Alexander Charns, a Southern civil rights attorney, weaves a tale of deception and intrigue. His proposition is that J. Edgar Hoover, during his forty-eight year reign as director of the FBI, greatly influenced both the make-up and the decisions of the Supreme Court. His tale involves plots that most would find unbelievable:

• During the Johnson administration, a Supreme Court Justice violated his judicial oath when he acted as an informer for the White House and the FBI by providing inside information on key cases before the Court.
• During the 1950s and 1960s, the FBI not only used wiretaps, bugging, informants, and disinformation to gather “evidence” on supposed Communists, but also used such methods to try to force “liberals” off the bench and to cultivate favoritism from others on the bench.
• If information obtained through warrantless wiretaps had not been given to President Truman by the FBI, William Douglas probably would have been appointed Chief Justice of the Supreme Court instead of Fred Vinson, changing drastically the make-up of the Supreme Court even today.

Charns supports his proposition with pages and pages of documentation. Consequently, the reader is drawn into the tale, finding it hard to put the book down, hanging at the end of each chapter, eager to discover the exact nature of the FBI’s impact on the Supreme Court.

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Page 28

Charn’s book is actually a tale made of two stories. There is the story in most any legal history, of certain resignations and confirmations of Supreme Court Justices and of the Court’s key decisions from the 1920s to the 1970s dealing with the constitutionality of warrantless wiretapping. This information provides the context for the second story and makes the book easily accessible for even those unfamiliar with legal history.

The second story is the one previously untold. It is the story of J. Edgar Hoover’s anti-Warren court program which consisted of supporting conservative nominations to the Supreme Court by influencing the nomination and confirmation process; whipping up public furor against Warren Court rulings; lobbying for legislation to counteract Supreme Court decisions; penetrating the Court itself to gain advance knowledge of Court business and influence rulings; and attempting to remove enemies of the Court.

Importantly, it is a story about a program which could have never existed without the assistance of various presidents, attorneys general, congressmen, and Supreme Court Justices.

Hoover was director of the Federal Bureau of Investigation from 1924 until his death in 1972. From 1941 to the mid-1960s, the FBI eavesdropped without a warrant on at least 13,500 individuals and organizations, catching information on thousands of non-targeted persons, including at least twelve Supreme Court Justices. Hoover was strongly anti-Communist and believed that the manner in which incriminating information was obtained was largely irrelevant. He also believed that the Supreme Court under Earl Warren, who became Chief Justice in 1953, was coddling subversives in its opinions on criminal law and civil liberties. Consequently, as revealed by Charns, from 1957-1971 Hoover “battled for the soul of the Supreme Court.”

Charn’s expose consists of shocking incidents, uncovered in government documents, of ex parte communications between the FBI and the Court and of vendettas against particular justices. One such incident was Hoover’s interference with the judicial process in Black v. U.S. The government believed Fred B. Black, Jr., had ties to racketeers. During its investigation, the FBI intercepted conversations between Black and his attorney. Black was subsequently tried for and convicted of income tax evasion.

Attorney General Robert Kennedy learned of the bugging several years later, but Hoover did not want him to inform the Court, as he feared the man would be freed. Nevertheless, in that year, Solicitor General Thurgood Marshall did inform the Court of the illegal bugging. From that point, Hoover was determined to lay the blame for the bugging on Kennedy, who had not directly approved the practice but had quietly acquiesced in it. Justice Abe Fortas was a close friend of President Johnson who hated Kennedy; Hoover enlisted Fortas to be an advocate for the FBI on the Court.

Charns goes beyond an historical examination of Hoover. He posits that the FBI has maintained what should be viewed as an inappropriately cozy relationship with the federal judiciary, pointing to the Clarence Thomas confirmation hearings as a recent example of the ill results of such a relationship. During the confirmation process, the FBI did not view Anita Hill’s allegations of sexual harassment sufficiently relevant to put into its investigative report, a report heavily relied upon by the Senate Judiciary Committee. As a result of the omission, the Committee had to learn of the allegations from the news media.

Charn’s contribution is to remind us that the FBI is an agency of the Executive Branch and should not be allowed special access to the judiciary. He shows a passionate devotion to the ideal of separation of powers and prompts his readers to ponder whether they believe the ideal is worth protecting.

As Charns points out, “An informal arrangement in which FBI agents and U.S. attorneys are more welcome in the chambers of justices and judges than defense lawyers or citizens does not inspire confidence and leads to the appearance that cases have been discussed and resolved beforehand, no matter how untrue this may be. This appearance itself is contrary to both the high ethical standards required of judges and to basic notions of fair play and good citizenship.”

He ends the book by making seven logical and seemingly reasonable recommendations, which if taken by Congress, the White House, and the Supreme Court, would prevent abuses of the past from occurring in the future. If the reader believes that such remedies are not necessary because such abuses no longer occur, he or she need only be reminded of what was disclosed in the book’s preface: much of the information found in Cloak and Gavel was discovered only because of Charn’s ten-year struggle to obtain government documents about the FBI’s influence on the Supreme Court through the Freedom of Information Act (FOIA). Only after litigation were the tens of thousands of records eventually released to him.

And the litigation has not ended. The information Charns has disclosed is most likely the tip of the iceberg, and without the implementation of at least some of the reforms Charns recommends, there can be no assurance that the FBI does not continue to influence the federal judiciary.

Cindy Adcock-Steffey is a staff attorney with North Carolina Prisoner Legal Services.