United States v. Ehrlichman
Facts
The Pentagon Papers were leaked to the press by Daniel Ellsburg in 1971. Their leakage caused President Nixon to form a special unit to investigate the source of the leak and to prevent similar leaks from occurring in the future. Ehrlichman (D), assistant to the president on domestic matters, was assigned to lead the special unit. The primary focus of the group was on Ellsburg. A plan was hatched to perform a covert operation to examine all the records held by Ellsburg’s psychoanalyst so long as it was not traceable back to the White House. Without permission of the President or the Attorney General and without a warrant, Ehrlichman and his covert team including G. Gordon Liddy and Howard Hunt broke into the psychoanalyst’s office. They failed to find the documents they were looking for.
Ehrlichman was indicted for conspiracy to commit burglary. Ehrlichman appealed, claiming that the break in related to a national security operation and therefore did not require a judicially approved warrant. Ehrlichman argued that this was a natural extension of the recognized exception for wiretaps performed by the executive branch relating to foreign affairs.
Issue
- May an executive officer who has no explicit authority from the president or the attorney general and without a warrant, break into a private office and claim justification based upon an implicit delegation of presidential power to oversee national security?
Holding and Rule of Law
- No. An executive officer, who has no explicit authority from the president or the attorney general and without a warrant, may not break into a private office and claim justification based upon an implicit delegation of presidential power to oversee national security.
The national security exception does not excuse the failure to obtain a judicial warrant. This exception to the warrant requirement of the Fourth Amendment must be made explicit by the president or the attorney general. It may not be implied or inferred. If presidential approval is to replace judicial oversight of a search for matters of foreign affairs, it is necessary to fix accountability and centralize responsibility. Ehrlichman’s mistake of the law and his mistake of the interpretation of the Fourth Amendment is no excuse. He was not even relying on a misleading statement made by the president or the attorney general. He merely asserts that it was his belief that the break in was lawful and he has no specific defense aside from this.
Disposition
Affirmed.
Notes
A mistake of law (absent reasonable reliance on an official source of law e.g. a judge, or in this case the president or attorney general) will not excuse criminal liability.