As the crazy world of American politics turns, it turns out that it was President Ronald Reagan who, with his signature on March 26, 1981, granted a “full and unconditional pardon” to the former Deputy Director of the Federal Bureau of Investigation, W. Mark Felt, a.k.a. the “Deep Throat” of Watergate legend, as we finally know for certain—and as Carl Bernstein’s son Jacob and some of his old schoolmates have known for years.

Only the Reagan pardon was not for anything related to Felt’s extracurricular activities as “Deep Throat,” during which service he aided and abetted the 24-month-long collapse of the presidential regime of Richard Nixon, culminating with his August 9, 1974 resignation.

Rather, it was for Felt’s performance of his official duties, some of which led to his November 1980 conviction, along with fellow agent of repression and former FBI “intelligence” chief Edward S. Miller, for having ordered multiple illegal “black-bag jobs”—“surreptitious entries,” as they used to refer to them at trial, warrantless and unconstitutional searches of at least five private homes in New York and New Jersey, which the FBI suspected of harboring members of the Weather Underground, ca. 1972-1973.

For these tip-of-the-iceberg convictions—indeed, Felt and Miller having been the “only FBI personnel ever tried and convicted of COINTELPRO-related offenses,” as Ward Churchill and Jim Vander Wall remind us in their invaluable study of the domestic espionage campaign conducted by the U.S. Government against political dissidents in the 1960s and 1970s—Reagan pardoned the two gentlemen in 1981. As the White House explained in a public statement issued shortly after Reagan had signed the pardons (April 15, 1981), Felt and Miller were just doing their jobs:

Their convictions in the U.S. District Court, on appeal at the time I signed the pardons, grew out of their good-faith belief that their actions were necessary to preserve the security interests of our country. The record demonstrates that they acted not with criminal intent, but in the belief that they had grants of authority reaching to the highest levels of government.

America was at war in 1972, and Messrs. Felt and Miller followed procedures they believed essential to keep the Director of the F.B.I., the Attorney General and the President of the United States advised of the activities of hostile foreign powers and their collaborators in this country. They have never denied their actions, but, in fact, came forward to acknowledge them publicly in order to relieve their subordinate agents from criminal actions.

Four years ago, thousands of draft evaders and others who violated the Selective Service laws were unconditionally pardoned by my predecessor. America was generous to those who refused to serve their country in the Vietnam War. We can be no less generous to two men who acted on high principle to bring an end to the terrorism that was threatening our nation.

Hostile foreign powers and their collaborators in this country? Sounds a lot like the rhetoric the current regime and its minions at the Fox News Network and elsewhere smear across the brow of anybody who criticizes the regime’s violations of international, treaty, and constitutional law—from Amnesty International and the American Civil Liberties Union, to the narrow 5-4 majority in the Supreme Court’s three “War on Terror” decisions 12 months ago.

In their defense at the 1980 trial, Felt and Miller noted that the “FBI conducted warrantless break-ins for 30 years before the Weather Underground burglaries,” Associated Press reported at the time (Larry Margasak, Nov. 4, 1980). According to the New York Times, Felt’s attorney contended “that his client had no way of knowing in 1972 that he was supposed to get the approval of the Attorney General or the President for each break-in. He said former President Richard M. Nixon and many former Justice Department officials had testified that the authority to approve break-ins ‘was already there in the office of the Director of the F.B.I’.” Essentially the same defense was put forwarded by Miller’s attorney, who, the Times also reported, said that Felt and Miller need not “apologize for the searches conducted secretly by the bureau because they were necessary ‘to preserve the basic institutions of our country and to attack and overcome its enemies’. In the absence of any guidelines or standards,…Mr. Felt and Mr. Miller had to rely on the authority of their superiors and the past practice of the bureau.” (“Break-In Jurors Asked to Convict Ex-F.B.I. Aides,” Robert Pear, Nov. 5, 1980.)

Exactly who it was that had been attacking the United States—from within, no less—the attorneys left unexplained. But we all get the picture, I think: It wasn’t the FBI or the Presidency or anybody related to the law enforcement branch of the government that was attacking the country from within—at least not from their point of view. On the contrary. It was the critics of the Imperial Presidency, beginning with the critics of its wars in Indochina. The protestors, in other words. The civil rights agitators (i.e., Blacks and Northern Liberals). The generation gappers. The youth. The flower children. The dropouts. The hippies. The potheads. The women’s libbers. The free-sexers. The homosexuals. And so on. Toss in the condom-users and the other members of the “culture of death,” and we have what in other quarters a similarly oppressive regime likes to refer to as the relativists—the ones who dissent and disobey. And whose “dictatorship of relativism” appears as grave a threat to the established order in our day as the Black Panthers and the Weather Underground and the American Indian Movement and the other agents of Cuba, North Vietnam, and Red China seemed to Washington in the 1960s and 1970s.

The portrait of W. Mark Felt conveyed by his detractors today is of a man who, in leaking to the Washington Post what he knew about the FBI’s investigations of the Watergate break-in and cover-up, betrayed his duty as a law enforcement officer of the FBI. Conversely, Felt’s defenders portray him as a man who wanted to uphold the rule of law in the United States, but felt stonewalled by the White House and by colleagues corrupted by power, and who, in leaking to the Washington Post, had resorted to whatever means were necessary to help see justice prevail.

Both of these portraits are false. But the latter portrait especially so. Although Felt’s motives in turning on the Nixon White House are less than clear—for example, did Felt represent a faction that believed Nixon had grown “soft” (from their point of view, that is) on such Cold War themes as the Soviet Union, China, the wars in Indochina, and the like?—we must remember that this was the exact same individual whom Reagan pardoned less than ten years later for his critical role in organizing the FBI along the lines of a Gestapo that ruthlessly harassed and destroyed dissident political groups in the States as they related to the anti-war movement, the civil rights movement, and the like.

W. Mark Felt simultaneously leaked to the Post about the Nixon White House’s Watergate-related activities, while he himself was involved in who knows how many dirty and illegal practices against American citizens whose crimes ranged anywhere from setting off bombs to being politically conscious and active.

The old-time FBI figure who just came forward as the “Deep Throat” of Watergate legend neither is now nor has ever been a hero.

The COINTELPRO Papers: Documents from the FBI’s Secret Wars Against Dissent in the United States, Rev. Ed., Ward Churchill and Jim Vander Wall, South End Press, 2002

FYA (“For your archives”): Below you will find a selection of what is currently accessible about the trial and the conviction of W. Mark Felt and Edward S. Miller for their services on behalf of the repression of dissident U.S. political figures and movements while they were high-ranking officials of the Federal Bureau of Investigation in the early 1970s. (The space here being limited, please note well.)

United Press International
November 1, 1980, Saturday, AM cycle
HEADLINE: Jury Instructions may be crucial in FBI trial
BYLINE: By GREGORY GORDON
DATELINE: WASHINGTON

A federal judge plans to instruct a jury this week to convict two former top FBI officials of conspiracy if it finds they lacked specific approval from the president or attorney general for ”black bag” break-ins.

Defense lawyers in the seven-week-old trial, in which former President Richard Nixon and Former Attorneys General John Mitchell and Richard Kleindienst testified, were stunned Friday upon learning of Chief U.S. District Court Judge William Bryant’s proposed jury instructions.

W. Mark Felt, the FBI’s former No. 2 man, and Edward S. Miller, its former intelligence chief, are charged with approving warrantless FBI break-ins — known as ”black bag jobs” — at private homes in 1972 and 1973 in a hunt for clues to the whereabouts of radical Weather Underground fugitives.

The case, expected to go to the jury Tuesday or Wednesday, is complicated because the break-ins occurred just months after the Supreme Court ruled on June 19, 1972 a court warrant is required for a break-in in a domestic investigation.

Prosecutors contend the hunt for members of the Weather Underground was a domestic investigation, and even if it qualified as a national security probe, specific approval was required from Nixon or attorney general Kleindienst.

Defense lawyers, producing massive evidence that the Weather Underground had foreign contacts and was linked to dozens of terrorist bombings, argue the case was a national security investigation.

But in more than 10 hours of testimony, Felt conceded he never had specific approval — only ”general approval” — from former FBI director L. Patrick Gray for the break-ins. Felt said he did not know whether Kleindienst or Nixon had approved the break-ins. Miller did not testify, but one of his aides said Gray had given general approval for break-ins to combat terrorism.

Kleindienst said he never approved a ”black bag job.” But he testified under cross-examination by defense lawyers that he probably would have given his OK in the Weather Underground probe if advised of the group’s contacts with North Vietnamese and other foreign powers.

Nixon, in a dramatic courtroom appearance that left the jury glancing about nervously, testified he delegated authority directly to the FBI for break-ins in national security cases.

Bryant’s proposed jury instructions say the jury must find Felt and Miller guilty unless ”each entry and search was specifically authorized by the president, or the attorney general acting as his chief legal advisor.”

”This means that the president or attorney general must have been apprised beforehand of the need for the foreign surveillance information, must have considered the requirements of national security, and must have personally authorized each particular entry and search.”

Mark Cummings, a lawyer for Felt, called Bryant’s proposed instruction ”discouraging, after we’ve elicited opinions from two judges, five former attorney’s general and one president.”

Another Felt attorney, Frank Dunham, said he could accept Bryant’s instruction if the judge allowed the jury to also consider whether Felt and Miller were acting ”in good faith” or that the law was unclear at the time.

The judge was reportedly undecided on whether to allow a similar jury instruction to the one an appeals court ruled should have been used at the trial of Watergate burglars Bernard Barker and Eugenio Martinez. That proposed instruction would have exonerated Felt and Miller if they were ”acting out of a good faith reliance upon the apparent authority of another” — Gray in this case.

Closing arguments in the trial, originally scheduled for Monday, were postponed until Tuesday, because Felt’s chief counsel, Brian Gettings Jr., was hospitalized Friday and Saturday with a sudden rise in blood pressure.

The New York Times
November 2, 1980, Sunday, Late City Final Edition
SECTION: Section 4; Page 4, Column 5; Week in Review Desk
HEADLINE: THE NATION;
Voices of Authority At the F.B.I. Trial

The last witnesses passed in review last week at the trial in Washington of W. Mark Felt and Edward S. Miller, accused of conspiring to violate the constitutional rights of citizens by authorizing unlawful break-ins when they were, respectively, acting associate director and director of intelligence for the Federal Bureau of Investigation in the early 1970’s. And some witnesses they were, too: four former Attorneys General of the United States and one former President.

Richard M. Nixon, who had avoided appearing in court since his resignation in 1974, denied that in his day it was necessary, as the prosecution contends, for the F.B.I. to go to the Attorney General for authorization to conduct warrantless searches in cases related to national security. He testified that he had once specifically authorized a program including such searches, but revoked his approval four days later at the request of J. Edgar Hoover. But it was his understanding, he said, that he did not thereby revoke Mr. Hoover’s own authority to order such searches.

Of the Attorneys General, all four -Ramsey Clark, John N. Mitchell, Richard G. Kleindienst and Nicholas deB. Katzenbach – said they might have authorized such entries, depending on circumstances. But only Mr. Clark said he was ever asked.

All of last week’s witnesses were called by the prosecution to make the record complete on the chain of command. But some of what they said may give comfort to defense lawyers in final arguments this week. If the bureau doesn’t ask Attorneys General or Presidents whether break-ins are allowed, then it may be argued that the authority lies in the F.B.I. itself. The defendants have said that L. Patrick Gray, then chief of the bureau, authorized what they did; Mr. Gray, who faces similar charges, has denied this, but has not been called to testify.

The Washington Post
November 2, 1980, Sunday, Final Edition
SECTION: First Section; A14
HEADLINE: Nixon’s Account: Final Chapter in FBI Aides’ Trial
BYLINE: By Laura A. Kiernan, Washington Post Staff Writer

Flanked by Secret Service agents and deputy marshals, the witness entered the well of the courtroom, raised his right hand high and swore to tell the whole truth. His face and his hair had a familiar, powdered ghostly look, appropriate for a figure just emerged from the past. He positioned himself in the witness chair, an American flag behind him.

The prosecutor, John W. Nields Jr., coolly addressed the first question to the witness, called by the government to testify at the conspiracy trial of two former FBI aides at the federal court here.

“. . . How are you employed?”

“I’m retired,” the witness replied quietly.

“Were you once the president of the United States?”

“Yes.”

For the next 46 minutes, interrupted only briefly by shouts from a few spectators who call him a “war criminal” and a “liar,” Richard M. Nixon was once again in command, in the small, safe forum of a federal courtroom, explaining himself and the way things were when the country and his administration were torn by the Vietnam war.

The exchange betweeen Nixon and the prosecutor was a colloquy between gentlemen, not an interrogation.The former president didn’t sweat, he didn’t shake his head defensively and he didn’t say he wanted to make anything “perfectly clear.” He did sit back in his chair and ramble, his chin resting in his hand, and at times he pounded his finger on the wooden bench in front of him to emphasize a point, reminding his spellbound audience more than once that there are things “we have to understand.”

And when he had the chance, Nixon was more politician than witness, his testimony more like a speech.

“As we sit here today, grave as our problems are, we can be fortunate that the United States at least is at peace in the world. And President Carter has made that point and I think he has every right to make the point that during his period and term in office, we have not at least in armed combat lost — I think what — and we have to understand what the attitude was then.”

“Now, even now, at a time of peace, we are concerned about international terrorism. We are concerned, for example, when we read what happened in France recently, in Paris, the anti-Israeli activity resulting in assassination, murder and bombing, what happened in Italy and so forth. We are concerned it might happen here.”

“But all these concerns, I can assure you as one who went through it, were greatly magnified — I guess that’s the proper word — by the fact that in 1969, 1970, 1971 we were at war. . . .

“I can assure you that — I think that, I hope that neither President Carter or Gov. Reagan if he should be president has to do what I had to do, what Franklin Roosevelt had to do –.”

At that point, an impatient Chief Judge William B. Bryant interrupted and told defense lawyer Thomas A. Kennelly to ask his next question. But, Nixon continued.

” — what President Truman had to do, that is, write letters to people whose sons have been killed in war. . . .”

Nixon’s appearance last week, the first time he has testified in a courtroom since he left the White House in disgrace six years ago, was a stunning, final chapter in the trial of the two FBI aides, W. Mark Felt, once the bureau’s No. 2 man, and Edward S. Miller, once chief of the domestic intelligence division. Both are charged with approving surreptitious entries — known in bureau parlance as black bag jobs — at the homes of friends and relatives of fugitive members of the radical Weather Underground in 1972 and 1973.

It had been rumored for weeks that the former president would appear as a witness for the defense, apparently anxious to testify that domestic terrorism, like that spawned by the Weathermen, hindered his efforts to end the war and justified efforts by the FBI — including secret entries — to penetrate that organization..

The defense, however, completed its case without calling the former president as a witness. Instead, the prosecution took up Nixon’s offer to voluntarily testify for either side at the trial, a tactical decision by the government that could turn out to be a master stroke or a fatal blow to a delicate case, which is expected to go to the jury this week.

Nobody on the prosecution team is revealing any strategy, but a variety of courthouse observers have offered theories on the government’s decision to have Nixon testify.

For one thing, Nields’ questioning of the former president focused on Nixon’s approval of the 1970 Huston plan, a domestic intelligence program aimed almost exclusively at the Weathermen and the Black Panther Party. The plan, Nixon testified, included illegal break-ins and electronic surveillance, but he said he believed his approval erased any illegalities. However, he then testified that he revoked his approval almost immediately, based on FBI Director J. Edgar Hoover’s objections.

That testimony could be key to the prosecution, which argued that Felt and Miller needed direct approval from the president or from the attorney general to conduct the secret warrantless entries aimed at the Weathermen. There was no testimony from Nixon that he approved any entries other than those included in the Houston plan, which he withdrew. Nixon’s statements capped testimony from four attorneys general, all of whom testified for the government that they never gave direct authority for surreptitious entries.

But Nixon’s testimony, as expected, was also strongly supportive of the defense argument that the FBI director had direct authority from the president to carry out break-ins in national security cases against targets with established connections to hostile foreign powers. Nixon testified that it was his belief that a succession of presidents, dating back to Franklin D. Roosevelt, had passed that authority to the FBI director and that approval from the attorney general was not needed.

Some observers felt, however, that no matter how helpful Nixon’s testimony was for the defense, it was doomed to be clouded by the stigma of Watergate, the crimes the public associates with the Nixon administration and the notion that the president and his men felt they were above the law. By calling Nixon, these observers said, the prosecution had imposed that stigma on the defense, a risk the defense thought it had avoided by turning down Nixon’s offer to testify for it.

The Associated Press
November 4, 1980, Tuesday, AM cycle
BYLINE: By LARRY MARGASAK, Associated Press Writer
DATELINE: WASHINGTON

A prosecutor and a defense lawyer differed Tuesday over how to apply a section of the Bill of Rights to warrantless break-ins that two former officials of the FBI admit they authorized.

The case will go the jury Wednesday after U.S. District Judge William Bryant gives jurors legal instructions.

In his final summation to the jury at the trial of W. Mark Felt and Edward S. Miller, prosecutor John W. Nields Jr. said the two former FBI men violated the Constitution’s 4th Amendment, which prohibits unreasonable searches.

But Felt’s attorney, Frank Dunham, told the U.S. District Court jury that it should focus not on the 4th Amendment but on whether Felt and Miller believed they were acting legally when they approved break-ins to combat a wave of terrorist bombings.

Dunham said the two men thought they were acting properly, and he asked the jurors to imagine themselves “standing in the rubble” of a Weather Underground bomb factory that exploded in New York City in March 1970.

Miller’s attorney, Thomas Kennelly, told the jury “times have changed” and asked jurors not to judge Miller’s actions by today’s standards.

“At no time did Mr. Miller ever believe his actions constituted a criminal offense and neither did anybody else,” Kennelly said.

Noting that the FBI conducted warrantless break-ins for 30 years before the Weather Underground burglaries, Kennelly said Felt and Miller have no apologies for working “to preserve the basic institutions of this country and prevent it from attack from within.”

Felt, the FBI’s former No. 2 man, and Miller, who headed the bureau’s intelligence division, are charged with violating individual rights by authorizing warrantless break-ins at five homes of friends and relatives of Weather Underground fugitives.

Both men admit approving the break-ins in New York City and New Jersey in 1972-73 but contend they were authorized to do so by then-acting FBI Director L. Patrick Gray III.

If convicted, each man could receive up to 10 years in prison and a maximum $10,000 in fines.

Prosecutor Nields told the jury that in 1766, William Pitt of England established the principle that persons should be secure in their homes against unreasonable searches. In 1791, he said, the Bill of Rights was added to the Constitution and the same principle was stated in the 4th Amendment.

“Did Edward Miller and Mark Felt for one minute believe the U.S. Supreme Court would approve the ‘black bag jobs’ they authorized in the homes of friends and relatives of Weather Underground fugitives?” Nields asked the jurors.

“If you answer no, I ask you to return a verdict of guilty.”

Nields also told jurors to discard testimony — including that of former President Richard M. Nixon — that the FBI director had authority from the president to approve warrantless break-ins in foreign intelligence cases.

The prosecutor said every document presented in the case that involved delegation of authority avoided mention of break-ins, but simply told the FBI “to do a job.”

Referring to the break-ins, Nields added, “There is not one single document that suggests it’s legal.”

Dunham said Gray in 1972 reversed a 1966 FBI decision to stop warrantless break-ins. “Mr. Felt believed that the policy had changed,” he said.

Dunham told jurors this is a case where “the present powerful federal government is saying that what the past powerful federal government did was wrong.”

The lawyer said if jurors believe that Felt thought Gray had the authority to reinstitute the warrantless break-ins and was following Gray’s directions by approving them, the verdict should be innocent.

“Don’t let him (Felt) be the object of somebody’s outrage or concern about the practices of the FBI for 30 years,” Dunham said. “The FBI is not on your verdict form.”

United Press International
November 4, 1980, Tuesday, AM cycle
HEADLINE: Final Arguments in FBI Trial
BYLINE: By GREGORY GORDON
DATELINE: WASHINGTON

A federal prosecutor asked a jury Tuesday to disregard Richard Nixon’s testimony and make the Constitution ”speak loudly” by convicting two former top FBI officials of approving illegal break-ins.

But defense lawyers for W. Mark Felt, the FBI’s former No. 2 man, and Edward S. Miller, the bureau’s retired intelligence chief, argued the two acted in a good faith belief they had authority from above for break-ins to combat terrorism.

”You have to get in their shoes and walk a few miles,” Felt’s lawyer, Frank Dunham Jr., told the jury in closing arguments at the seven-week-old trial. ”Ask yourself whether you would have acted differently.”

Felt and Miller are charged with conspiring to commit civil rights violations by approving break-ins — known as ”black bag jobs” — at private homes in a hunt in 1972 and 1973 for fugitive members of the radical Weather Underground.

Chief U.S. District Judge William Bryant was expected to send the sequestered jury into deliberations Wednesday morning in the precedent-setting trial of high U.S. intelligence officials. Never before have FBI employees been criminally prosecuted for allegedly illegal surveillance.

If convicted, Felt and Miller each would face penalties of up to 10 years in prison and a $10,000 fine.

Chief prosecutor John W. Nields, sitting on the prosecution table and talking in hushed, intimate tones in his final arguments, told the jury the searches were unreasonable in violation of the Fourth Amendment to the Constitution.

He said the FBI kept its practice of conducting break-ins secret for 30 years because bureau officials knew ”from the top of their heads to the bottom of their socks they were doing something wrong.”

”Make the Constitution speak and speak loudly — so loudly that officials of the United States government will hear it, even when they are making their decisions in secret and listening to the din of national security and foreign intelligence,” he told the panel.

Nields urged the mostly black jury to reject defense contentions that the ”bag jobs” were part of a national security investigation because the Weather Underground leaders had ties to foreign powers.

He said leaders of the antiwar group, who took credit for dozens of terrorist bombings, were ”bad people,” and the FBI was doing its duty to investigate them. But he said the Weather Underground had no serious connections with the North Vietnamese or Cuba.

Regarding the dramatic testimony from Nixon and former attorneys general John Mitchell and Richard Kleindeinst which climaxed the trial, Nields told the jury that the three neither prohibited nor approved of the break-ins.

Nixon testified he delegated authority for break-ins directly to the FBI and that the ”bag jobs” in the Weather Underground probe were justifiable because the group threatened to affect the outcome of the Vietnam War.

The New York Times
November 5, 1980, Wednesday, Late City Final Edition
SECTION: Section A; Page 14, Column 1; National Desk
HEADLINE: BREAK-IN JURORS ASKED TO CONVICT EX-F.B.I. AIDES
BYLINE: By ROBERT PEAR, Special to the New York Times
DATELINE: WASHINGTON, Nov. 4

The prosecution asked a Federal jury today to ”make the Constitution speak, and speak loudly,” by finding two former officials of the Federal Bureau of Investigation guilty of conspiring to violate the rights of citizens.

John W. Nields Jr., the chief prosecutor, said in his closing argument that the two defendants, W. Mark Felt and Edward S. Miller, had authorized agents to break into homes in 1972 and 1973, knowing that such ”black bag jobs” would probably not be approved by the Supreme Court.

Mr. Nields told the jurors that they should judge Mr. Felt and Mr. Miller by the ”law of the courts,” not by the ”secret law” under which the bureau had conducted ”surreptitious entries” without search warrants for three decades.

”The F.B.I. broke into homes of the American people for 30 years and they kept it a secret from us and from Attorneys General,” Mr. Nields said. ”Then when we find out, they turn around and say, ‘But nobody ever told us it was wrong.’ ”

‘Bottom of Their Socks’

In fact, Mr. Nields said, the Federal agents ”knew, from the tops of their heads to the bottom of their socks, when they were in somebody’s home, looking through their personal belongings, that they were doing something wrong.”

Defense lawyers told the jury, however, that Mr. Felt and Mr. Miller were just trying to do their jobs and had no way of knowing that they needed approval from the President or the Attorney General for the break-ins.

Thomas A. Kennelly, a lawyer for Mr. Miller, said, ”At no time did Mr. Miller believe his actions constituted any criminal offense and neither did anybody else.”

The purpose of the warrantless searches authorized by the defendants was to help find fugitive members of the Weather Underground organization, a militant antiwar group that had claimed responsibility for bombing the United States Capitol, the Pentagon and other public buildings.

Over 60 Witnesses Testified

More than 60 witnesses testified at the trial, which is in its eighth week before Judge William B. Bryant, Chief Judge of the Federal District Court here.

The defense contended that Mr. Felt and Mr. Miller did not need search warrants because they were engaged in a foreign intelligence investigation, collecting information about ties between the Weatherman group and foreign nations hostile to the United States.

Mr. Nields said that over the years citizens had achieved a right to be free in their homes from Government intrusions. He cited the Fourth Amendment, which forbids ”unreasonable searches and seizures,” and a 1966 bureau memorandum that said ”black bag” operations were ”clearly illegal.”

Frank W. Dunham Jr., an attorney for Mr. Felt, said that his client had no way of knowing in 1972 that he was supposed to get the approval of the Attorney General or the President for each break-in. He said former President Richard M. Nixon and many former Justice Department officials had testified that the authority to approve break-ins ”was already there in the office of the Director of the F.B.I.”

Nobody Asked Kleindienst

He told the jury that Richard G. Kleindienst, the Attorney General at the time, would have approved the break-ins if he had been asked, but that nobody asked him.

Although J. Edgar Hoover, former Director of the bureau, ordered a halt to the use of break-ins in 1966 or 1967, Mr. Dunham said, Mr. Felt believed that there was a ”policy change” in 1972. The attorney said his client believed that L. Patrick Gray 3d, then Acting Director of the bureau, ”had turned back on what Mr. Hoover had previously turned off.”

Mr. Kennelly said that the defendants did not apologize for the searches conducted secretly by the bureau because they were necessary ”to preserve the basic institutions of our country and to attack and overcome its enemies.” In the absence of any guidelines or standards, he said, Mr. Felt and Mr. Miller had to rely on the authority of their superiors and the past practice of the bureau.

The jury is expected to begin deliberations tomorrow after receiving instructions on the law from Judge Bryant.

The Associated Press
November 7, 1980, Friday, PM cycle
BYLINE: By LARRY MARGASAK, Associated Press Writer
DATELINE: WASHINGTON

The civil rights conviction of two former FBI officials who ordered warrantless break-ins in the search for left-wing terrorists in the early 1970s may have little effect on today’s FBI.

Edward S. Miller, convicted Thursday along with W. Mark Felt, said the decision will not harm the FBI, which he called still a “great and grand organization.”

An FBI spokesman said agents now have specific guidelines in such cases.

Felt and Miller, who rose through the ranks under the late J. Edgar Hoover, were the highest-ranking FBI officials ever to be convicted of a crime. The U.S. District Court jury found them guilty of conspiracy to violate the civil rights of friends and relatives of members of the radical Weather Underground by approving illegal searches at their homes in 1972 and 1973.

Felt was once the bureau’s No. 2 man and Miller the chief of its intelligence division. They could face up to 10 years in prison and $10,000 in fines if the convictions are upheld upon appeal.

Judge William B. Bryant set sentencing for Dec. 15.

Miller told reporters that FBI officials today should not have to go through his ordeal because “we didn’t have the same kind of guidance that today’s FBI has.”

FBI spokesman John Morrison confirmed that the bureau has specific written guidelines from the attorney general on the legality of investigative techniques. There also is a presidential directive permitting warrantless break-ins in certain foreign intelligence cases, he said.

In addition, a document introduced at the trial shows the FBI has proposed that a special court established to approve government wiretaps also rule on warrantless break-in requests. The court has not decided whether it has authority to do so, and legislation to give it that power has yet to pass Congress.

Felt and Miller admitted approving the break-ins but said they were authorized by Acting FBI Director L. Patrick Gray III, who succeeded Hoover.

Gray, who was indicted with Felt and Miller but faces a separate trial, refused to comment on the verdict.

Felt told reporters he and Miller acted “in the best interests of the country,” but the Justice Department said the warrantless break-ins violated the Fourth Amendment protection against unreasonable searches.

“I spent my entire adult life working for the government and I always tried to do what I thought was right and what was in the best interest of the country,” Felt said. “The jury didn’t agree with me.”

Miller added, “We tried to do our job for people, and I think we did a good job. We did the job the only way the job could be done.”

Stronger reaction came from Norman Philcox, national president of the Society of Former Special Agents of the FBI.

Speaking from Amherst, N.H., Philcox said FBI agents are “scared to death to conduct investigations because they are afraid that five or 10 years later they may be charged with some technical violations of a crime in connection with their investigation.”

The New York Times
November 7, 1980, Friday, Late City Final Edition
SECTION: Section A; Page 1, Column 1; National Desk
HEADLINE: 2 EX-F.B.I. OFFICIALS ARE FOUND GUILTY IN BREAK-INS CASE
BYLINE: By ROBERT PEAR, Special to the New York Times
DATELINE: WASHINGTON, Nov. 6

Two former officials of the Federal Bureau of Investigation, W. Mark Felt and Edward S. Miller, were found guilty today of conspiring to violate the constitutional rights of American citizens by authorizing Government agents to break into homes secretly, without search warrants, in a hunt for bombing suspects in 1972 and 1973.

The defendants, standing with their attorneys and facing the jury, showed no emotion as the foreman announced the verdict in Federal District Court. The jury of eight women and four men reached its decision after deliberating yesterday and today for a total of about eight hours.

The maximum penalty for the offense is 10 years in prison and a $10,000 fine.

Test of Bureau Policies

William B. Bryant, chief judge of the Federal District Court here, who presided over the seven-and-a-half-week trial, set sentencing for Dec. 15. Defense attorneys said they intended to appeal.

Mr. Felt and Mr. Miller were the highest-ranking officials of the bureau to be tried on criminal charges since J. Edgar Hoover became Director of the agency in 1924.

The trial had broader significance as a symbolic test of bureau policies and procedures over nearly three decades with regard to Government power in the legally murky areas of ”national security” and ”foreign intelligence.” The bureau has adopted rules and guidelines in the last four years aimed at assuring greater attention by Federal agents to the right of privacy and the civil rights of individuals.

Defendant Is ‘Disappointed’

Mr. Felt, leaving the courtroom, said he was ”very disappointed.” Mr. Miller said he doubted that the verdict would send a ”message” to agents in the bureau today. ”This is really no surprise,” Mr. Miller said. ”You always have to anticipate this kind of a possibility. It’s a tight legal problem.”

Mr. Felt, 67 years old, served in the bureau more than 31 years and was acting associate director, the second highest official in the bureau, at the time of the break-ins. Mr. Miller, 56, had a 24-year career in the bureau and was assistant director in charge of the intelligence division when he authorized the break-ins.

Mr. Miller reported the break-ins, also known as ”black bag jobs” or ”surreptitious entries,” to Mr. Felt in memorandums marked ”Do Not File.” The memorandums were initialed at the time by both men.

Defense attorneys portrayed their clients as victims of changing times and changing standards. The prosecutors said that they had tried the case in order to uphold the Fourth Amendment, which protects individuals against unreasonable searches and seizures.

L. Patrick Gray 3d, Acting Director of the bureau at the time of the break-ins, was indicted with Mr. Felt and Mr. Miller on April 10, 1978. Mr. Gray is awaiting a separate trial on the same conspiracy charge. He has denied approving the break-ins.

A Justice Department spokesman acknowledged three months ago that the case against Mr. Gray then seemed ”substantially weaker” than when he was indicted. Alan I. Baron, an attorney for Mr. Gray, said today that no new evidence had come out at the Felt-Miller trial that would strengthen the Government’s case against his client.

Opens Way for Damage Suits

The verdict opens the way for courts to hear civil damage suits filed against Mr. Felt, Mr. Miller and the Federal Government by people who contend that the searches violated their civil rights. Evidence used in the criminal trial may be sought by plaintiffs in the civil suits. In those suits, Government lawyers may find themselves in the position of having to defend some of the actions that the prosecutors denounced in the criminal case.

The one-count indictment accused Mr. Felt and Mr. Miller of approving nine break-ins at five different addresses in New York and New Jersey, the homes of relatives and acquaintances of members of the Weather Underground, a militant antiwar organization. The organization claimed responsibility for bombings at the United States Capitol, the Pentagon, the State Department and other public buildings in the early 1970’s.

Teams of Federal agents entered and searched the homes without warrants, photographing any documents with possible clues to the whereabouts of the fugitives. Prosecutors emphasized that the people who occupied the premises had not themselves been suspected of crimes. The defense attorneys said that the Weatherman radicals had many connections with hostile foreign powers, including Cuba and North Vietnam, and that break-ins had been secretly used by the bureau for 30 years in foreign intelligence investigations.

Several agents testified that the break-ins did not lead to the capture of any fugitives.

Question of Authorization

In his instructions to the jury, Judge Bryant appeared to accept many of the prosecutors’ legal arguments. He said that search warrants were required unless the break-ins were part of a foreign intelligence investigation in which each entry was personally approved, in advance, by the President or the Attorney General.

However, Judge Bryant said that the jury could acquit Mr. Felt and Mr. Miller if it found that the defendants had made an honest ”mistake of law,” believing ”reasonably and in good faith” that the President or the Attorney General had given the F.B.I. Director authority to conduct break-ins as he saw fit in national security investigations.

The judge also said that, for the break-ins to be legal, the persons whose homes were searched must all have had a ”significant connection” with a foreign power or foreign agents. In most of the break-ins there was apparently no evidence of such a connection.

Former President Richard M. Nixon and five former Attorneys General tetified at the trial. Mr. Nixon said that Presidents since Franklin D. Roosevelt had delegated authority to the head of the bureau to use break-ins while conducting foreign intelligence and counterespionage investigations.

Huston Plan Recalled

Mr. Nixon said that he had approved the use of break-ins to collect domestic intelligence in July 1970, when he approved the socalled Huston plan, named for an aide in the Nixon White House, but the former President said he revoked his approval four days later because of objections expressed by Mr. Hoover.

Former Attorneys General Herbert Brownell Jr., John N. Mitchell and Richard G. Kleindienst testified that a President could delegate such authority to the head of the F.B.I. Mr. Kleindienst, who was Attorney General for most of the time covered by the indictment, said that if he had known about the break-ins, he would have required the bureau to obtain his approval in each instance.

The Washington Post
November 7, 1980, Friday, Final Edition
SECTION: First Section; A1
HEADLINE: Ex-FBI Officials Felt, Miller Guilty in ‘Black Bag’ Cases;
Ex-FBI Aides Felt, Miller Convicted
BYLINE: By Laura A. Kiernan, Washington Post Staff Writer

W. Mark Felt and Edward G. Miller, both career FBI men who climbed to the highest ranks of the bureau before their retirement, were convicted yesterday of conspiracy to violate the civil rights of friends and relatives of members of the radical Weather Underground by approving illegal searches at their homes in the early 1970s.

The jury of eight women and four men, sequestered for the duration of the two-month trial in U.S. District Court here, reached its verdict after eight hours of deliberation that began just before noon Wednesday.

Felt, 67, once the bureau’s No. 2 man, and Miller, 56, formerly chief of the powerful domestic intelligence division, stood impassively as the jury foreman announced the decision, maintaining the outward stoicism they had shown throughout the trial.

Outside the courthouse afterward, Felt, holding his wife Audrey’s hand, said he was “very disappointed” with the verdict. “I spent my entire adult life working for the government and I always tried to do what I thought was right and what was in the best interest of this country and what would protect the safety of this country. Obviously the jury didn’t agree with me,” Felt said.

The case drew painful lines between the Justice Department, which said Felt and Miller had breached protections of the Bill of Rights, and the rank and file of the FBI, which rallied to the defendants’ support following their indictment two years ago.

Earlier, as the two men checked in with the courthouse probation office to schedule presentence reports, Miller said he was certain the bureau would continue to be “a very proud organization” despite the jury’s decision.

“Its job is to work for the people of this country today, just as it was our job in 1972 and 1973 to serve the people, and we did it the way we thought was best. As a matter of fact, the only way we thought was possible,” Miller said.

Felt and Miller both face up to 10 years in jail, a $10,000 fine or both on the conspiracy conviction. Chief Judge William B. Bryant scheduled sentencing for both men for Dec. 15.

The government had charged that in 1972 and 1973, Felt and Miller approved nine surreptitious entries — known in FBI jargon as black bag jobs — at the New York and New Jersey homes of friends and acquaintances of members of the Weather Underground. The entries were part of a desperate search for clues to the whereabouts of fugitive members of that antiwar organization.

The government contended that the searches were illegal — and that Felt and Miller knew they were illegal — because they were done without warrants and directed at innocent citizens who had no significant connection to the Weathermen or their violent activities.

The government’s case rested on the language of the Fourth Amendment to the Constitution — part of the Bill of Rights — which special prosecutor John W. Nields Jr. recited repeatedly for the jurors: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated . . . ”

“They were trying to track down the Weathermen through these innocent people,” one juror said last night. And what they found, this juror said, “didn’t give them any leads to the fugitives.”

“They did this to innocent people, so they violated the Fourth Amendment of the Constitution, the rights of the people,” said the juror, who asked not to be identified.

The defense team contended that Felt and Miller had approval from then acting FBI director L. Patrick Gray III to carry out the warrantless entries for national security reasons, to hunt down the fugitive radicals and to stop a series of bombings across the country for which the Weathermen had claimed credit. Gray, who was also indicted with Felt and Miller on the conspiracy charge, had denied that he ever gave approval for the break-ins. Bryant has agreed to a separate trial for Gray which has not yet been scheduled.

The government contended that even if the searches were justified for national security reasons — based on the defense argument that the Weathermen had significant connections to hostile foreign powers — the FBI needed approval on a case-by-case basis from the president or the attorney general before such entries could be carried out.

There was extensive testimony in the case about how the nation’s courts — particularly the Supreme Court — and legal experts interpreted the law of search and seizure. Moreover, an array of former high-ranking government officials, including former president Nixon, were brought to the courtroom to give their view of the rules, regulations and laws that they believed governed the bureau’s use of surreptitious entries. The result was that the trial became bogged down in conflicting opinions, which led the courthouse observers to believe that the case would turn on Judge Bryant’s instructions to the jury on the law that they should apply in reaching their verdict.

Defense lawyers said yesterday that they believed the guilty verdict hinged on Bryant’s instruction that the FBI needed specific, case-by-case approval from either the president or the attorney general before any surreptitious entry could be carried out in national security cases.

There was no dispute from the defense that Felt and Miller had no such approval. Rather, they presented testimony that the president had delegated that authority in national security cases to the FBI director, an interpretation supported by testimony from Nixon, who was in the White House when the Weathermen break-ins occured.

Bryant had told the jury they could acquit Felt and Miller if they determined the two men “reasonably and in good faith” believed the FBI director had received specific authority from the president or the attorney general to conduct surreptitous entries as he saw fit in national security cases. That had been the defense argument all along.

The juror interviewed yesterday said, however, “we didn’t have the proof to show they [The Weathermen] were collaborating with foreign powers.”

The juror noted a 1966 memo from J. Edgar Hoover, introduced into evidence, in which, the then-FBI director said, according to the juror, “no more bag jobs and he really spelled it out . . ..” Neither Felt nor Miller had anything on paper to show he had Gray’s approval to resume the break-ins, this juror said. Felt, who testified in his defense at the trial, was inconclusive about the approval he claimed he had, the juror said.

“. . . He said he thought he had the approval and if they gave him the approval then he shouldn’t be in doubt at all. He should have had something in writing,” the juror said.

Thomas A. Kennelly, an attorney for Miller, and Frank W. Dunham Jr., a lawyer for Felt, both said yesterday they will appeal.

United Press International
November 7, 1980, Friday, PM cycle
HEADLINE: Two former FBI officials convicted
BYLINE: By GREGORY GORDON
DATELINE: WASHINGTON

Members of a jury that convicted two former top FBI officials of approving illegal break-ins say the issues were clear: the victims of the searches ”were innocent people” and the bureau lacked authority for the surveillance.

But lawyers for W. Mark Felt and Edward S. Miller, the FBI’s former No. 2 and No. 3 men, plan to appeal the guilty verdict announced in U.S. District Court Thursday. It was the first conviction of high FBI officials.

It still is unclear whether the Justice Department now will go forward with prosecuting former acting FBI Director L. Patrick Gray on the same charges.

Felt, 67, and Miller, 56, stood motionless as jury foreman Odell Valentine announced the panel had found them guilty of approving nine illegal break-ins — or ”black bag jobs” — in a hunt for fugitive members of the radical Weather Underground.

Miller’s daughter, Maggie, burst from the courtroom in tears.

After nearly nine hours of deliberations, the jury brought a sudden end to the 7 -week trial and 2 -year-old prosecution, concluding Felt and Miller violated the civil rights of friends and relatives of the fugitives by approving unreasonable searches of their homes.

Defense lawyers argued the searches were justified as part of a national security investigation because the militant anti-war group had ties to hostile foreign powers and was linked to terrorist bombings. The jury apparently didn’t buy it.

”These were innocent people they conducted these searches on,” said juror Evelina Pugh. ”They didn’t find anything about the Weathermen collaborating with these relatives.

”If the Weathermen did have any foreign connection, it wasn’t proven,” she added.

Another juror, 72-year-old retired federal worker Rowena Harwood, said the jury spent much of its time discussing ”the violation of the Fourth Amendment (barring unreasonable searches),” but ”didn’t agree until the last minute.”

The charges against Felt and Miller carry a maximum penalty of 10 years in prison and $10,000 fines. Chief U.S. District Judge William Bryant set sentencing for Dec. 15.

Felt, once a trusted aide to J. Edgar Hoover, told reporters outside the courthouse, ”I am very disappointed. I spent my entire adult life working for the government and I’ve always tried to do what I thought was right and also in the best interest of the country.”

Miller, promising an appeal, said he and Felt were faced with ”tight legal problems. … We didn’t have the kind of guidance the FBI has today.” He referred to clear Justice Department policies that now require court warrants or the attorney general’s approval for break-ins.

Norman Philcox, president of the 7,900-member Society of Former Special Agents of the FBI that raised $1.2 million for Felt’s and Miller’s defense, said he expects a successful appeal because the Justice Department repeatedly delayed the trial while taking steps to protect classified information.

Felt, Miller and Gray were the only FBI officials prosecuted for the break-ins. Former Attorney General Griffin Bell decided responsibility rested at the top — not with 50 to 60 lower-level FBI agents involved in the ”bag jobs.”

The defense had argued that Felt and Miller thought former President Richard Nixon delegated authority to Gray to conduct break-ins on national security cases — and that Gray passed on power to them.

Gray denies approving the break-ins, and Felt conceded in testimony that Gray gave only ”general approval” and was unaware of the Weather Underground searches.

In a dramatic final move in the trial, prosecutors called Nixon and former attorneys general John Mitchell and Richard Kleindienst to testify — and none of the three said he had approved the break-ins.

Prosecutors contended that even if a national security investigation were involved, specific approval of the attorney general or the president was needed.

Nixon testified he delegated authority directly to the FBI to conduct break-ins in national security cases.

But Mrs. Pugh said, ”A lot of things were done without prior approval … If he (Nixon) delegated it, then they should have something in writing. Anytime you receive an approval, you should receive it in writing.”

Another juror, who declined to be named, told United Press International the panel paid little attention to Nixon’s testimony, saying it was difficult to ”tell which side he was on.”

Jurors said the panel was divided at first, but declined to give any head counts. They said foreman Valentine, a retired General Services Administration supervisor, conducted written ballots and said he would not disclose the results until he had a unanimous verdict.

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