Bench Memos

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Absolute Immunity


One of the Alito documents released today is a June 12, 1984, memo (pages 2-8 here) that he wrote, as an assistant to the Solicitor General, concerning the case of Forsyth v. Kleindienst. In that case, the plaintiff had been the target of a warrantless domestic national security wiretap. He sued officials responsible for the wiretap—including the Attorney General—for money damages in their personal capacities. In his memo, Alito recommended that the United States seek review in the Supreme Court of a ruling that held that the officials’ assertion of qualified immunity was not immediately appealable under the collateral-order rule. He recommended (for tactical reasons) against seeking review of a ruling that the Attorney General did not enjoy absolute immunity for his role in the wiretap.

I’m reliably informed that Democrats in the Senate, showing their usual legal sophistication, want to try to hammer Alito for stating in the memo that he did “not question that the Attorney General should have this [absolute] immunity.” They (or reporters being spun by them) might take note of pages 2-3 of the memo, which show that DOJ in the Carter administration took that very position in filings before the Supreme Court.


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