A Verdict Against Richard Nixon

When Morton Halperin first went to court three years ago, he had no idea that he would eventually accomplish what no private citizen ever had--a successful suit for damages caused by the official acts of a U.S. President. But Halperin, then 35, a Yale-trained former staffer on the National Security Council, was furious at learning that the FBI had tapped his telephone. He filed suit against the half-dozen top officials whom he felt had to be held responsible. He even sued the Chesapeake and Potomac Telephone Co. Last week Morton Halperin won a resounding victory that could cost his tappers, starting with President Nixon, nearly $1 million in damages.

The case started with Nixon's own anger about foreign policy leaks to the press. On May 9, 1969, the New York Times reported the secret bombing of Cambodia. That same day the FBI started a series of wiretaps that ultimately monitored the telephones of 13 Government officials and four newsmen for various periods of time until February 1971. Halperin, an antiwar holdover from the Johnson Administration, was one of those under suspicion. Within nine months, in fact, he decided to quit. But not until the Watergate disclosures came gushing forth in 1973 did he learn that for 21 months the FBI had eavesdropped on him, his wife and three young sons for "national security" reasons. He demanded $3 million in damages.

After three years of legal wrangling, during which the Justice Department took over the defense, Halperin won his basic points. In a 16-page opinion, U.S. District Court Judge John Lewis Smith Jr. ruled that Halperin's Fourth Amendment rights to protection against unlawful search and seizure had been violated, the taps had uncovered no evidence of wrongdoing by Halperin, and Nixon, former Attorney General John Mitchell and former White House Aide H.R. Haldeman must pay damages

"Like any other citizen," the judge said, "these officials are charged with the knowledge of established law and must be held accountable for personal misconduct." Halperin's suit was a civil action and therefore not covered by President Ford's pardon absolving Nixon of any criminal acts that occurred during his Administration.

Judge Smith found that Nixon was personally liable for damages because he had initiated and overseen the wiretap program without setting specific limits on it. Mitchell, the judge said, was in error because he had failed to review periodically the need for the taps. Haldeman was liable because he too did not put a stop to the monitoring, and in addition used bugs for political spying (after leaving the NSC. Halperin served for a time as an adviser to Presidential Aspirant Edmund Muskie). The judge, however, dismissed charges against three other officials named in the suit, including Secretary of State Henry Kissinger, who had originally listed Halperin as a suspected leak but had played what the judge called an "inactive" role in the actual bugging.

Figuring Damages. Though it is still unclear just how the damages against Nixon and his co-defendants will be computed--the judge left that to a later hearing--Halperin's lawyers want it figured according to the formula now in the federal wiretap law: $100 per day per victim, which for the five Halperins for 630 days would add up to $315,000 against each of the three defendants.

Halperin, now director of an American Civil Liberties Union project that helps file suits against governmental invasions of privacy, was naturally elated. Said he: "It's a sweeping reaffirmation that all public officials, including the President, are strictly limited by the Constitution." Now that the case is over, he admitted that he had not expected to win any damages at all.

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