THE LAW AND SOCIETY READER

Vol. 2 No. 11 (November, 1992) pp. 187-188

CLOAK AND GAVEL: FBI WIRETAPS, BUGS, INFORMERS, AND THE SUPREME COURT by Alexander Charns. Champaign, Illinois: University of Illinois, 1992. 206 pp. Cloth $24.95.

Reviewed by David M. O'Brien, Department of Government and Foreign Affairs, University of Virginia.

This engaging and often disturbing book sheds new light on the illegal and unethical activities of the Federal Bureau of Investigation (FBI), along with some Supreme Court justices' highly questionable associations and unethical collaboration with the bureau. Based primarily on FBI files, Alexander Charns, a practicing attorney, begins by recounting his eight year-long litigation battle to force the bureau to release under the Freedom of Information Act its files on the Supreme Court and individual justices. In addition, Charns draws on several of the justices' papers at the Library of Congress and, notably, obtained access to Justice Abe Fortas's papers, which are located at Yale University and closed to the public until the year 2000.

The obsession of FBI director J. Edgar Hoover with combating Communism and Left-wing "subversives" through infiltration, wiretapping, and bugging has been well documented elsewhere. But, the extent to which Hoover directed his campaign at the Court has not received much attention. That, of course, has been largely because the FBI's files have remained secret. And that is where Charns's persistence and research makes a genuine contribution. His story of the FBI and federal judges' collaboration remains far from complete, to be sure, due to the bureau's secret filing systems, destruction of records, and censorship of materials that have been made available. Yet, Charns reveals that Hoover made it a practice to try to curry favor with some justices, to promote or cut short the careers of others, and to otherwise influence the federal judiciary. Moreover, between 1945 and 1974 at least twelve justices were overheard in more than 100 wiretapped conversations and Charns establishes some highly inappropriate connections between Hoover and members of the Supreme Court and the federal judiciary.

Not surprisingly, as with much of the Washington community Hoover sought covert access to and influence in the Court. And as the Warren Court moved in more liberal directions when dealing with alleged Communists in the 1950s and then the rights of the accused in the 1960s, Hoover became increasingly concerned. Hoover persuaded Court employees to inform FBI agents about the Court's deliberations, for example, in the case of Ethel and Julius Rosenberg. Later, he directed an investigation of Earl Warren and maintained files on Justice William 0. Douglas, among other justices, that included material obtained through unauthorized wiretaps. On the basis the latter material, according to Charns, Hoover may have dissuaded President Harry Truman from elevating Justice Douglas to chief justice in 1946. But, on this score Charns's evidence appears weak and circumstantial. And the competing influences and pressures on Truman when naming his friend Fred Vinson to the Court's center chair are greater and more complex that Charns concedes. In illuminating detail, however, Charns recounts how almost two decades later Hoover armed Representative Gerald R. Ford with his file on Douglas prior to Ford's bungled attempt to impeach the justice in the House of Representatives.

More revealing and disturbing is Charns's reconstruction of events in 1966 when Hoover managed to persuade Justice Abe Fortas, whom he once considered a "sniveling liberal," to keep FBI agents abreast of the Court's deliberations in a pending case. The case involved the bureau's unauthorized bugging of the hotel room of Washington lobbyist Fred Black, a close friend of Bobby Baker, who -- like Justice Fortas -- was one of President Lyndon Johnson's intimate associates. Although Justice Fortas recused himself from the case, this story of judicial impropriety comprises the heart of Charns's book and adds another chapter to the volumes already written about Justice Fortas's indiscretions and improper activities on and off the bench.

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Admittedly, as a relentless foe of the FBI and advocate-turned-author, Charns occasionally gets carried away. The significance of the FBI's assisting various justices in making travel arrangements, running background checks on potential law clerks and judicial fellows, or helping Chief Justice Warren Burger bring Oriental rugs back to the United States from England in 1985, for instance, appears highly debatable.

Still, Charns makes a strong case for his claim that "An FBI report on a nominee's background should be viewed with as much skepticism as reports submitted by other interest groups." (p. 130) He does so by revealing Hoover's directives in the 1950s to FBI field offices to identify potential judicial nominees who appear friendly to the bureau, and which turned up the likes of Potter Stewart and Warren E. Burger. Charns also highlights the importance of the FBI's uneven reports on judicial nominees and their selective use by the bureau, as well as the FBI's occasional memos to Department of Justice attorneys suggesting that they forum shop in order to have cases heard by judges known to be sympathetic to the bureau.

Finally, and even more disturbing than Justice Fortas's indiscretions and some other revelations, is the evidence Charns unearths concerning Chief Justice Burger's links with the FBI and federal Judge Edward Tamm (a former FBI assistant director) and their efforts to recruit former FBI agents as court administrators. Alas, Charns does not fully explore these connections or what he terms Chief Justice Burger's "hidden political agenda" (p. 124) in pushing reforms in the area of judicial administration. But, his book is the place for others to begin. And his documentation of the unethical and at times illegal activities of those within the FBI and the federal judiciary underscores his concluding recommendations that the working papers of both the bureau and the justices ought to be made public after a reasonable period of time. Unfortunately, Charns's book may well contribute to precisely the opposite result: former justices destroying or censoring papers before making their collections available as public records, just as has been the FBI's practice.