The references to “fake news” and to the press as “the enemy of the people” aren’t just idle insults. That kind of language has helped rationalize warrantless searches and the suspension of the Constitution.

Have I got a wild but little known Watergate back story for you! 1/25 https://twitter.com/ACLU/status/1197676404747493376

I had a law school class on civil rights that ended at 9 pm. My professor was too old to drive at night so I drove him home after class and sometimes we'd stop for a drink at the train station near his house and he’d regale me with war stories. This one’s the wildest of all. 2/25

All lawyers have their war stories, but few had the war stories that Arthur Kinoy had. He was Ethel and Julius Rosenberg’s last lawyer. He argued and won a Supreme Court case that set the stage for Roe v. Wade. He was Bobby Seale's appellate lawyer. Kinoy had serious cred. 3/25

Prof. Kinoy was asked to help defend a case against a militant activist charged with planning on bombing a federal building. It was an open-and-shut case except there was a warrantless wiretap. The defense made a routine motion to exclude the wiretap. And things got weird. 4/25

The US Attorney submitted a letter personally signed by Attorney General John Mitchell claiming the wiretap was valid because it was issued to protect the national security of the nation and no court can restrain the executive when acting to protect the national security. 5/25

This was based on a memo written by a DoJ lawyer named Bill Rehnquist. It was an odd turn because the case was open-and-shut for the government. Why bother? The DoJ was clearly trying to pick a fight - one that it should lose yet they seemed confident they’d win. 6/25

The case went to the Supreme Court quickly. Kinoy argued that the wiretap was illegal. The Solicitor General sat out this oral argument yet he sat in the first row of the gallery as if to let the Justices know he was available to argue the government’s case if he wanted. 7/25

The government's brief was argued by Ed Mardian, later convicted as part of the Watergate break-in and for a long time suspected to be Deep Throat. Oh, I should note this is February 1972. Mardian led the Dirty Tricks unit at DoJ. 8/25

The Court had just eight justices sitting that day. The ninth justice, the newest one on the court, happened to be William Rehnquist, the guy who wrote the national security memo at issue in the case. He had to recuse himself from the deliberations and the decision. 9/25

During the arguments, Kinoy made a very risky tactical decision to claim that the national security exception was vague and could erase the entire Fourth Amendment. Kinoy made a decision on the spot to press his luck and skirt the normal decorum by lobbing an accusation. 10/25

Kinoy: "The President's Chief of Staff, Mr. Haldeman, recently claimed Democratic lawmakers who visited North Vietnam were enemies of the state. What if the President decided the Democratic Party posed a national security risk and ordered wiretaps of Democratic candidates?" 11/25

Mardian flipped out and objected - which is unusual during oral arguments - saying that Kinoy had leveled an outrageous claim.

Kinoy told me he had instantly regretted his gambit, thinking he may have pushed his point too far and offended the Justices. 12/25

What nobody in the room knew at the time - not even Mardian - was that two weeks earlier several lawyers at the DoJ had met and decided to do exactly what Kinoy had hypothesized: they’d wiretap the Democratic headquarters without a warrant. On national security grounds. 13/25

The argument was in February 1972.

The decision was issued on June 19, 1972 -- a Monday morning in June which is when decisions for the term are typically issued.

But between then a couple of things happened. 14/25

The Watergate break-ins intervened. The FIRST break-in was on May 27-29. There was a second break-in on June 17-18. History says the full break-in team returned to repair two faulty "bugs." But they were caught with a lot of equipment, not just a couple of replacement bugs. 15/25

On Monday following the second break-in, when the break-in was a minor news item, the Clerk of the Supreme Court called up Kinoy to tell him that the decision was 8-0. Kinoy, still fearing he’d overplayed his hand, told the clerk he was astonished and dismayed it was 8-0. 16/25

Kinoy said he was shocked Justices Brennan and Douglas had sided with the DoJ. "No," the clerk explained. "You don't understand. You WON the case 8-0."

That was a big surprise if you consider every justice rebuked the memo written by their newest colleague on the bench. 17/25

Kinoy explained this next part to me over his second gimlet at the commuter lounge inside the Bloomfield NJ train station, "As Watergate became big news, I realized they weren't there to repair bugs that night. They came back to remove all the bugs they'd planted in May.” 18/25

Kinoy added, “They had to get all the bugs out before the Court's ruling made them undeniably illegal.

"Hold on a second," I said. "They had no way of knowing what the decision was going to be."

"Not unless it was a matter of national security," Kinoy replied with a smirk 19/25

It slowly dawned on me that Democrats were probably not the only enemies of the state being spied on by the Nixon Administration.

Sure, the Court decision could have been leaked by a law clerk or a secretary with loose lips. Or Rehnquist himself may have been the leak. 20/25

Even if the Nixon Administration wasn't wiretapping the U.S. Supreme Court as Kinoy proposed, I buy into Professor Kinoy's theory that the second break-in was to remove all the wiretaps ahead of the Court decision.

This is the decision, by the way: https://supreme.justia.com/cases/federal/us/407/297/ 21/25

There are some "crazy" ideas out there claiming the government does things that are unthinkable or even comically preposterous. We must remain vigilant because oppression is opportunistic. As soon as we imagine these things can't ever come true in this world, we're screwed. 22/25

When the @ACLU shares news about reporters being questioned about immigration reporting – and juxtaposes that with reminders of how Trump says the press is “fake news” and are “enemies of the people” I wonder if we’re seeing only the tip of the iceberg. 23/25

We’ve seen the government plays these games before. Is there a First Amendment protection for “freedom of the FAKE news press?” Shouldn’t the President be able to use extraordinary measures against a known “enemy of the people?” The DoJ and ACLU may not see eye-to-eye. 24/25

With all the flag-waving that celebrates freedoms preserved by our military and all the bravado of gun rights advocates blathering about fighting tyranny, don’t overlook the heavy lifting the @ACLU, lawyers and journalists do quietly day in and day out with pens and words. 25/25

Bonus: This is Prof. Kinoy - 5 feet 2 inches - being carried away by Deputy U.S. Marshals (and then jailed) for the zealous representation of his client before the House Un-American Activities Committee.

Here's THAT story if you like the Watergate story:

https://www.crmvet.org/docs/kinoy_huac_brief-r.pdf