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AADL Talks To: Judge Damon Keith

When: November 16, 2010 at Theodore Levin U.S. Courthouse, Detroit, MI

In June, 1972, then-U.S. District Judge Damon J. Keith of Detroit foiled the Nixon Administration's plan to use the Ann Arbor CIA Conspiracy trial as a test case to acquire Supreme Court sanction for domestic surveillance. Keith's ruling - that the Justice Department's wiretapping was in violation of the 4th amendment - led to a unanimous Supreme Court decision making domestic surveillance illegal…during the same week as the Watergate break-in. In this interview, Judge Keith, now Senior Judge for the United States Court of Appeals for the Sixth Circuit, recalls his memories of the case and his famous Keith Decision. He also talks about how he handled similarly difficult cases, and the legacy of his work.


  • [00:00:04.71] AMY: Hi, this is Amy.
  • [00:00:06.13] ANDREW: And this is Andrew. And in this episode, AADL talks to Senior Judge for the United States Court of Appeals for the Sixth Circuit, Damon Keith.
  • [00:00:15.38] AMY: In this interview, Judge Keith recalls his memories of the CIA conspiracy case and his famous Keith Decision. He also talks about how we handled similarly difficult cases and the legacy of his work. Can you tell us a little bit about where you grew up and your early career?
  • [00:00:35.41] DAMON KEITH: I was born in Detroit, Michigan on the west side of Detroit, 3860 Hudson, and went to Columbian Elementary School, McMichael Intermediary, and Northwestern High School. During that period, I never had a Black teacher from the kindergarten all the way through high school. The official Y, which is just across the street on the boulevard from Northwestern High School, was only for white males. The Black males had to go down to the St. Antoine Y, and the Black females had to go to Lucy Thurman YWCA.
  • [00:01:26.68] Then I went away to college, to a small Black college called West Virginia State College where I had an opportunity to see for the first time the outstanding Black Americans with PhDs and master's degrees and men like Mordecai Johnson, the president of Howard University and Mary McLeod Bethune, the President of Bethune-Cookman College, Carter G. Woodson, great Black historian, Benjamin Mays from Morehouse, Adam Clayton Powell, who was a congressman from New York, and many others. So that is the way my life went. And then after that, I went into the Army in an all-Black outfit and served in Europe, then came back and went to Howard University Law School, because I wanted to see, at that time, if I could legally help change some of the inequities that existed in our country.
  • [00:02:42.96] And there, I met Thurgood Marshall and Charlie Houston, Jim Nabrit, Oliver Hill, and the great Bflack lawyers. And they whet my appetite for being interested in making the Constitution a living document. So that's how I got into law.
  • [00:03:08.12] ANDREW: With some of your decisions, there's been a lot of fallout, for instance, your decision in Pontiac to desegregate the schools. There were protests, and there was the KKK blowing up some of the buses. What is it like, as a judge, to have to sit back and watch the results of a decision you make that might not be popular?
  • [00:03:31.77] DAMON KEITH: It's not difficult at all. You just make the decision. Irene McCabe, at that time, was very active up in Pontiac. And they had a marching to Washington in opposition to that decision. My life was threatened, and I had to have-- my wife didn't know at that time-- the FBI going around my house. I lived on Outer Drive and Prairie. But it was just another decision that I had to make. And you just go ahead and not be fearful of those.
  • [00:04:08.42] ANDREW: Is that something that came from your parents, that feeling that you would do what was right, you would make the right decision, even if it did put your life in danger, put your job in danger?
  • [00:04:18.53] DAMON KEITH: Well, it comes from, number one, believing in yourself, and number two, having courage, and number three, believing in equal justice under the law in the Constitution. And at Howard, Thurgood Marshall and Charlie Houston and Jim Nabrit, and them taught us about courage and to remember the four words inscribed in the Supreme Court, "equal justice under law." And when you get out, start practicing law, try to see that that is a commitment of yours.
  • [00:04:52.78] AMY: In the events leading up to the White Panther trial, there was a lot of publicity. And I was curious about your views of the White Panthers and of Ann Arbor at that time.
  • [00:05:03.33] DAMON KEITH: Well, I guess it's little known, but this case was originally assigned-- that is, the White Panther case-- to Judge Talbot Smith, who lived in Ann Arbor. And we had a judge's meeting. I was just fresh on the bench. What year was this?
  • [00:05:23.01] AMY: 1971.
  • [00:05:24.74] ANDREW: Yeah.
  • [00:05:26.07] DAMON KEITH: Yeah, I was appointed in '67. So we were in a judges meeting. The first Monday, we'd have lunch downstairs, in the judges'-- and Judge Talbot Smith told Judge Ralph Freeman, who was the chief judge, he said he feared for his life and his family. He lived in Ann Arbor. And he says, why don't we get in touch with the chief judge in Cincinnati of the Sixth Circuit and ask him to assign another federal judge from outside the city of Detroit and State of Michigan to hear this case?
  • [00:06:10.28] And I'm just on the bench. I guess I was the youngest on the bench. And I just instinctively spoke up. I said, Chief Judge Freeman, every time we get a difficult case, we cannot ask the chief judge of our circuit to bring another judge in here to try it. I said, we have taken an oath to uphold the Constitution and do justice and try these cases. And I think we should go ahead and try it. Now, Judge Talbot Smith can recuse himself, and that's understandable. But I think one of us should try this case.
  • [00:06:51.96] And to Judge Freeman's credit, he says, I agree with you, Damon. What we'll do now is just put all the names in a box of the judges here today and see who pulls the White Panther case. So as luck would have it, I pulled it. That's a very important element that nobody-- but the case was originally assigned to Judge Talbot Smith, who with his wife, lived in Ann Arbor, and family.
  • [00:07:22.83] ANDREW: And when your name was drawn from the box, were you a little afraid of trying the case, or--
  • [00:07:30.09] DAMON KEITH: Not at all. I'm not, just basically, a fearful man. I think I like making difficult decisions, if you've checked my record, and I had no idea that this case was going to blow up and be so historic. But I've just said, let it go on. So that was it.
  • [00:08:03.94] AMY: William Kunstler writes in his autobiography that you made everyone very comfortable in the courtroom right from the get go, that you served rolls and coffee, I think it was, and that you effectively let everyone know it wasn't going to be the sort of contentious courtroom that they'd just had during the Chicago Seven trial. Did you think it was particularly important to create that sort of atmosphere at that time?
  • [00:08:28.15] DAMON KEITH: Yes, well, I have a basic feeling of fairness. I've been on the court now for over 40 years. I've never held anyone in contempt of court or even threatened to hold anyone in contempt of court. So I knew about what had happened with Judge Hoffman over in Chicago. But I, frankly, thought that a lot of his problems emanated from him himself.
  • [00:09:02.22] But I called Bill Kunstler and Leonard Weinglass, and I've forgotten all of the lawyers. And I served them coffee and buns and doughnuts or whatever and sat out with them. I said, now, we're going to try this case. And when you get up to speak to the court, I want you just stand up and speak. Let the other side respond. You can rebut-- rebuttal, and then sit down. That's the way it is.
  • [00:09:38.14] I said, the court's going to be respectful of you, and I expect you to be respectful of the court. Didn't have any trouble at all, none whatsoever. And that's basically my philosophy of how I've tried to be a trial judge and a court of appeals judge, just to be fair and treat people with decency. And I've tried to live my life that way, frankly. I assume that everybody's nice until they show me that they're not.
  • [00:10:09.89] ANDREW: When the issue of the wiretapping evidence arose, did you immediately know that that was going to put a stop to things? Did you immediately know that that was a major aspect of the case that maybe the prosecution had no idea was going to be an issue? It almost seems like it hadn't occurred to them that it could possibly be an issue.
  • [00:10:29.89] DAMON KEITH: No, well, I think that either it was Bill Kunstler or Leonard Weinglass who said, Your Honor, I believe there was some wiretapping going on here. And we would like to see the tapes of the wiretapping. And I don't know who the attorneys were for the government at that time. They said, oh, no, we can't show you these tapes because of national security.
  • [00:10:59.50] I said, well, you should show them the tapes. That's all there is to it. And if I recall, they said, let me check with higher authorities and all that. And they came back, and they said, no, we can't show them the tapes. I said, you have to show them the tapes. We can't go any further unless you show them the tapes. And they appealed that decision to Cincinnati.
  • [00:11:24.43] My decision, it was a preliminary decision, but it was a critical decision. But they appealed, the government-- that is Mitchell and Nixon-- under the grounds of national security. And it went to the Sixth Circuit, where I now sit. Of course, I was a trial judge at that time. And Judge Edwards, Chief Judge Harry Phillips, and Paul Weick were the three judges on the panel. I'm amazed that I still remember this. And George Edwards wrote the opinion concurred in by Judge Phillips. Judge Edwards was originally from Michigan, served on the Michigan Supreme Court. Judge Phillips was from Tennessee. And Paul Weick was from Ohio. Paul Weick wrote the dissenting opinion. So the Sixth Circuit affirmed me.
  • [00:12:26.82] And then the government said, we're going to appeal to the Supreme Court. I said, my God, what's going on here? And they used they seldom-used legal concept of mandamus. So I find myself being mandamus not to release these tapes or not to order these tapes to be released to the plaintiffs. And I'm now the defendant in the lawsuit. So I had to get a lawyer to represent me.
  • [00:13:03.86] And one of my closest friends that I admired was Bill Gossett, who I got to know when I was on the Michigan Civil Rights Commission. Bill married to Charles Evans Hughes' daughter, Elizabeth. So I called Bill. I said, Bill, let's sit down and have lunch. I've got to have a lawyer. So he came over, and we had lunch. I don't know where we had-- and he said, well, Damon, this is very significant. I have to talk to my partners about this before I can say I represent you. He said, we'll have to do this pro bono. I said, yes. I ain't got no money. [LAUGHS]
  • [00:13:54.42] And a week or so later, Bill Gossett said he'd talked it over with his firm, and they said that he could represent me. So he was my lawyer. And of course, at that time, they worked on the briefs and all that. I've forgotten from that time, up until-- well, I missed a very critical point, that's the Supreme Court granted cert. After the Court of Appeals affirmed me, then the government appealed to the Supreme Court, and the Supreme Court knew how critical this case was, so they granted cert. And when they granted cert, then I had to get Bill Gossett as my lawyer to represent me before the United States Supreme Court.
  • [00:14:47.08] And so Bill argued for me before the Supreme Court. We won the case eight to zero. Rehnquist recused himself, and the judge doesn't have to state why he or she recuses themselves. But it was rumored-- and I said rumored with emphasis-- that he's the one that designed the theory that the president and the attorney general had this right, in the interests of national security, to wiretap without prior judicial approval. My position, they should have gone to a magistrate or some disinterested party to show probable cause as to why they wanted to wiretap these defendants.
  • [00:15:57.14] Now, interestingly enough, I saw the wiretaps after the case was dismissed, and there was absolutely nothing in there about national security. Nothing. Absolutely nothing about national security. But it shows you the danger of giving this type of power to the government, that they just can unilaterally wiretap and use as an excuse national security.
  • [00:16:32.55] AMY: You had said originally that there was nothing in the Fourth Amendment to provide for a national security exemption. Do you feel there are times that would warrant a national security exemption?
  • [00:16:45.08] DAMON KEITH: Well, I don't know. I believe in the Fourth Amendment. And I think the Supreme Court said when it comes to domestic matters that this right is absolute. And I agree.
  • [00:17:00.52] ANDREW: Now, how did it feel 30 years later, after September 11 and everything that followed, that these same arguments were being had, that something that had been decided-- or seemed like it had been decided-- was being talked about all over again, and came up all over again.
  • [00:17:16.98] DAMON KEITH: Well, that's the way life is, young man and young lady. We live in cycles. The Constitution and the Bill of Rights, they're here to protect all of us. And as federal judges, we have a tremendous obligation to do this. Imagine what this country would be like if the federal judges in America had not stepped up prior to Brown v. Board of Education? Down South, in North Carolina and Georgia and South Carolina and Alabama, federal judges protected the Constitution. And I believe in that very strongly.
  • [00:17:59.60] And it's interesting, in terms of the Bill of Rights, I got a call from Chief Justice Rehnquist, his office. And I've forgotten who it was said, Judge Keith, Chief Justice Rehnquist wants to appoint you chairman of the Bill of Rights for the whole country. He wants to know if you'll accept it. I said, yes, I'll accept. So as the cycle goes, here I was, the chairman of the Bicentennial of the US Constitution, the only Black on there, and all the other federal judges. And these Bill of Rights plaques in the Thurgood Marshall Building, in FBI Headquarters, in Guam, in almost every federal courthouse in the country, in Harvard, Wayne, Michigan, with my name on it as a national chairman of the bicentennial. But Chief Justice Rehnquist appointed me as the national chairman.
  • [00:19:07.50] ANDREW: I wanted to ask you, as a young judge, you had a couple decisions go up to the Sixth Circuit Court of Appeals and then all the way to the Supreme Court. How nerve wracking is it, as a young judge, to see your decisions escalate that way?
  • [00:19:23.71] DAMON KEITH: Well, young man, when I was a trial judge, my theory was that I didn't worry about the Court of Appeals or the Supreme Court. I did what was right. It's the way I've tried to live my life. Martin Luther King has a quote that I frequently use, that "Cowardice asks the question, is it safe? Expediency asks the question, is it popular? Vanity asks the question, is it politic? But consciousness asks the question, is it right?"
  • [00:19:56.05] And there comes a time in all of our lives that we have to do not which we're afraid of expedient or popular. We must do it because it's the right thing to do. And that's the way I've tried to be a judge of our court since I've been here. And I've never missed a night's sleep on any of these very difficult cases.
  • [00:20:18.87] That's another aspect that you should know about. Getting to your question, I drew Tony Giacalone's case. He was alleged head of the mafia, who Hoffa was supposed to have had lunch with the day Hoffa vanished. Then I drew Mike "The Enforcer" Rubino, a net worth case. Then I drew the Hamtramck case. Then I drew the Pontiac case. Then I drew the Detroit Edison case.
  • [00:20:53.20] So I went to Chief Judge Ralph Freeman. I said, Chief, look, this ain't by accident. No one judge is to get all these bad cases, front-page stories. I said, what's going on? Check down there? Somebody is giving me these cases?
  • [00:21:10.29] And he says, Damon, you have drawn a lot over your share of cases, because you can sit on a court like this, on a district court, and a federal judge can go a lifetime without getting the-- I get all these all together. I try the Tony Giacalone case for eight months. So he said, I'll put an agent down there in the clerk's office to see what's happening. So he put a clerk-- an agent down there. And after a month or two, he says, judge, you just draw all these cases. They were yours. The system down there, the draw is correct.
  • [00:21:54.75] And then, at my age, and as I look back on life-- and I say this to you as three young people-- the things that may seem difficult at the time you're making those decisions, and if you do the right thing, will later turn out to help change the course of your life. You just have to do what's right. And all of these accolades I've gotten, honorary degrees now from Harvard and Yale and Howard and Spelman and Georgetown and College of William and Mary, University of Michigan, but it's all because of these difficult cases that I thought I was being abused when I got them. And then these honors come to you.
  • [00:22:44.08] Now, this is sort of a side thing, but I think God plays a role in all of this. I do. You see the Bible and the Proverbs. I read those every morning before I start doing any of my legal work. And I don't know if it was Jeremiah or Isaiah who asked God, whom shall I send? And I think God said-- no, Isaiah said, here am I. Send me. And I think that I was just here to be sent. And that's it.
  • [00:23:26.47] ANDREW: To learn more about the Keith Decision, to go to
  • [00:23:34.63] AMY: "AADL Talks to Judge Damon Keith" has been a production of the Ann Arbor District Library.


I have to wonder whether the Nixon administration was hoping that domestic surveillance was going to be supported by the supreme court, making the Watergate surveillance legal