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Bench Memos

NRO’s home for judicial news and analysis.

The Washington Post on Alito and Wiretap Immunity



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I suppose that I must resign myself to the fact that reporters have a strong incentive to treat every document release by the Archives as newsworthy. After all, if they spend a few hours going through the documents, they might as well generate a story out of it. And, of course, Alito’s attackers are eager to provide their simplistic partisan spins.

I still find it remarkable, even on a slow news day, that the Washington Post would feature Alito’s 1984 memo on wiretap immunity as its lead front-page story under the headline “Alito Urged Wiretap Immunity”. I won’t claim to have examined this issued in extensive detail, but a plain reading of Alito’s memo indicates that the position that he supposedly was urging had been the settled position of both the Carter and Reagan Justice Departments.

Only a careful reader who made it to the 14th and 15th paragraphs of the article would discover that there is no news here:

“Part of the job of the solicitor general’s office, where Alito was an assistant, is to defend the interests of the executive branch, and the argument that the president and his top aides were entitled to absolute immunity was not a new one.

“The Carter administration had taken that position in wiretapping cases stemming from the Watergate scandal, but the issue had not been clearly resolved by the Supreme Court.”



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