94. Transcript of a Telephone Conversation Between Attorney General Mitchell and the President’s Assistant for National Security Affairs (Kissinger)1

M: About our friends in the JDL and the State request for injunctions of various types.2

K: Right.

M: Al Haig called about the President’s notation on the brief but

I wonder if he has fully considered the consequences … K: Probably not.

M: There are a lot of disadvantages to this picture. There are some advantages too but the advantages may be short-lived and the disadvantages may come back to haunt us like in the Scranton Commission.3 I don’t want to be in a position of disagreeing with the President but we’ve got problems here beyond State’s approach. For one, Helms tells me this will affect the Israelis materially if we take this action because of his opinion that the Israelis will look with disfavor on the publicity that will come from it as we being anti-Jewish. Second, I think this will have an adverse political impact. Third, if we go into court for an injunction we’ll have a coalition of all these liberal groups who will fight us in court on the grounds that we are trying to impinge on free speech. It will result in a prolonged court battle which will be on the front pages of the newspapers for a long time. From a legal procedural point of view we will have to subpoena newspaper reporters and we’ll have to have Russian witnesses and there’s a question of whether they will provide them. And there’s a question of whether we can make the case without the Russian witnesses. And, it’s a questionable precedent for the future as far as the Russians and Arabs are concerned. If we get such a court order we may not have the means of enforcing it in the federal establishment. We have only federal marshals with many other duties and they could not properly enforce it. The only facility the government has is the federal troops and if we get into a position of obtaining a federal court order which we fail to enforce we are just in more difficulty with our Soviet friends.

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There are some half-way measures which might be brought: an injunction against harassment aspects of it.

K: Let me tell you the thing we are above all interested in. The Russians are complaining bitterly, and in conjunction with other things we are doing, that there is no legal action being taken at all. If we can just show something is happening …

M: Do you feel that convening a grand jury to investigate this with respect to the commission of federal crimes would solve the problem?

K: That would help a lot. I have no interest in any particular remedy and consider the arguments you make quite conclusive. If you really think there is a disadvantage I would think if you can do any other legal thing showing the Administration is having recourse to its powers you would serve our purpose.

M: And I am sure that somewhere along the line in the Soviet establishment they realize the federal government has been [omission in transcript] in these activities.

K: To them this is a combination of things: they want to make an issue of it and therefore anything we do doesn’t make any difference. There may be some group thinking this thing can’t happen without government connivance. For them it’s hard to take that there’s nothing getting actions into motion. If you could assemble a grand jury to check whether a crime has been committed I would have no objections.

M: Let me wrestle with State on this.

K: Yes, but fairly soon?

M: I hope to get it resolved today.

K: If not, just do it anyway.

M: Well, they still want the grand sweeping injunctive action.

K: Let’s start with a grand jury and then it can go to an injunction, can’t it?

M: Yes, if it is found to be a crime.4

  1. Source: National Archives, Nixon Presidential Materials, Henry Kissinger Telephone Conversation Transcripts, Box 8, Chronological File. No classification marking. Mitchell was in Washington; Kissinger was in San Clemente.
  2. See Document 91 and footnote 5 thereto.
  3. William W. Scranton, former Governor of Pennsylvania, chaired the President’s Commission on Campus Unrest, which was established to investigate the shootings in the spring of 1970 at Kent State University and Jackson State University.
  4. Mitchell called Kissinger back at 3:10 p.m., PST, and reported: “Henry. We had a meeting with Irwin and the State Department and in accord with the suggestion that I made to you earlier decided to proceed immediately, probably on Thursday [January 14], with the Grand Jury approach … judicial process in New York has picked up Kahane and a couple more of his people. They brought an indictment against him today and other indictments which are going to be brought down and I have talked to [District Attorney] Frank Hogan … and expecting all of their activities. I think this will satisfy the State Department and the Russians.” Kissinger replied: “Excellent.” (National Archives, Nixon Presidential Materials, Henry Kissinger Telephone Conversation Transcripts, Box 8, Chronological File)