In today’s hearing, Alito tried to defend his 1984 position that U.S. Attorney John Mitchell, who authorized illegal wiretaps of American citizens, should be immune from punishment:
I do not question that the Attorney General [Mitchell] should have this immunity, but for tactical reasons I would not raise the issue here.
Today, Alito said that he supported absolute immunity only because it was a position that Attorney General Mitchell wanted to advance at the time:
Very briefly, is that we were — there we were not just representing the government. We were representing former attorney general Mitchell in his individual capacity. He was being sued for damages, and we were, in a sense, acting as his private attorney. And this was an argument that he wanted to make.…I said I didn’t think it was a good idea to make the argument in this case, but I didn’t dispute that it was an argument that was there.
Actually, Alito recommended the Justice Department pursue a long-term strategy to get the courts to endorse absolute immunity:
There are strong reasons to believe that our chances of success will be greater in future cases…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.
Altio was pusuing an agenda. He just won’t admit it.
Full transcript below.
LEAHY: Well, let me go back to the last time we saw government excesses like this, reported at FISA. When you worked in the reagan administration, you argued to the supreme court president nixon’s attorney general should have absolutely municipality for domestic spying without a warrant in the case of willful misconduct. In your memo, you said, I do not question the attorney general should have the municipality, but — immunity, but for tactical reasons, I would not raise the issue here. Do you believe today that the attorney general would be absolutely immune from civil liability for authorizing warrantless wire taps?
ALITO: No, he would not. That was settled in that case. The Supreme Court held that the attorney general does not have —
LEAHY: But you do believe —
ALITO: Actually, I recommended that that argument not be made. It was made, and I think it’s important to understand the context of that. First of all —
LEAHY: You did say the memo, i do not question that the attorney general should have this immunity.
ALITO: That’s correct. and the background of that, if i could just explain.
ALITO: Very briefly, is that we were — there we were not just representing the government. We were representing former attorney general mitchell in his individual capacity. He was being sued for damages, and we were, in a sense, acting as his private attorney. and this was an argument that he wanted to make. This was an argument that had been made several times previously by department of justice during the carter administration and then just a couple of years earlier in Harlo versus Fitzgerald in the Reagan administration, and I said I didn’t think it was a good idea to make the argument in this case, but I didn’t dispute that it was an argument that was there.