Mark Felt - Trial and Conviction

Trial and Conviction

In the early 1970s, Felt oversaw operation COINTELPRO during a turbulent period in the FBI's history. The FBI was pursuing radicals in the Weather Underground who had planted bombs at the Capitol, the Pentagon, and the State Department. Felt, along with Edward S. Miller, authorized FBI agents to break into homes secretly in 1972 and 1973, without a search warrant, on nine separate occasions. These kinds of FBI burglaries were known as "black bag jobs." The break-ins occurred at five addresses in New York and New Jersey, at the homes of relatives and acquaintances of Weather Underground members, and did not lead to the capture of any fugitives. The use of "black bag jobs" by the FBI was declared unconstitutional by the United States Supreme Court in the Plamondon case, 407 U.S. 297 (1972).

After revelation by the Church Committee of the FBI's illegal activities, many agents were investigated. Felt in 1976 publicly stated he had ordered break-ins and that individual agents were merely obeying orders and should not be punished for it. Felt also stated Gray also authorized the break-ins, but Gray denied this. Felt said on the CBS television program Face the Nation he would probably be a "scapegoat" for the Bureau's work. "I think this is justified and I'd do it again tomorrow", he said on the program. While admitting the break-ins were "extralegal", he justified it as protecting the "greater good." Felt said:

To not take action against these people and know of a bombing in advance would simply be to stick your fingers in your ears and protect your eardrums when the explosion went off and then start the investigation.

The Attorney General in the new Carter administration, Griffin B. Bell, investigated, and on April 10, 1978, a Federal Grand Jury charged Felt, Miller, and Gray with conspiracy to violate the constitutional rights of American citizens by searching their homes without warrants. Gray's case did not go to trial and was dropped by the Government for lack of evidence on December 11, 1980. Felt told Ronald Kessler:

"I was shocked that I was indicted. You would be too, if you did what you thought was in the best interests of the country and someone on technical grounds indicted you".

The indictment charged violations of Title 18, Section 241 of the United States Code. The indictment charged Felt and the others:

"Did unlawfully, willfully, and knowingly combine, conspire, confederate, and agree together and with each other to injure and oppress citizens of the United States who were relatives and acquaintances of the Weatherman fugitives, in the free exercise and enjoyments of certain rights and privileges secured to them by the Constitution and the laws of the United States of America".

Felt, Gray, and Miller were arraigned in Washington, DC on April 20. Seven hundred current and former FBI Agents were outside the courthouse applauding the "Washington Three", as Felt referred to himself and his colleagues in his memoir.

Felt and Miller attempted to plea bargain with the government, willing to agree to a misdemeanor guilty plea to conducting searches without warrants — a violation of18 U.S.C. § 2236 — but the government rejected the offer in 1979. After eight postponements, the case against Felt and Miller went to trial in the United States District Court for the District of Columbia on September 18, 1980. On October 29, former President Richard M. Nixon appeared as a rebuttal witness for the defense, and testified that Presidents since Franklin D. Roosevelt had authorized the Bureau to engage in break-ins while conducting Foreign Intelligence and Counterespionage Investigations. It was Nixon's first courtroom appearance since his resignation in 1974. Nixon also contributed money to Felt's defense fund, since Felt's legal expenses were running over $600,000 by then. Also testifying were former Attorneys General: Herbert Brownell, Jr., Nicholas deB. Katzenbach, Ramsey Clark, John N. Mitchell, and Richard G. Kleindienst, all of whom said warrantless searches in national security matters were commonplace and not understood to be illegal, but Mitchell and Kleindienst denied they had authorized any of the break-ins at issue in the trial. (The Bureau used a national security justification for the searches because it alleged the Weather Underground was in the employ of Cuba.)

The jury returned guilty verdicts on November 6, 1980. Although the charge carried a maximum sentence of 10 years in prison, Felt was fined $5,000 and Miller was fined $3,500. Writing in The New York Times a week after the conviction, Roy Cohn claimed that Felt and Miller were being used as scapegoats by the Carter administration and it was an unfair prosecution. Cohn wrote it was the "final dirty trick" and that there had been no "personal motive" to their actions. The Times saluted the convictions, saying it showed "the case has established that zeal is no excuse for violating the Constitution."

Felt and Miller appealed the verdict.