(dissenting):
The majority opinion accurately recounts the facts and aptly states many of the relevant points of law. I concur in its conclusion that appellants’ motions to withdraw their guilty pleas are to be judged by the “fair and just” standard. Majority Op., Part II. However, it is my opinion that the majority errs in its application of that standard to the present case.
I.
The majority bases its decision on appellants’ eight-month delay in asserting their defenses by moving to withdraw the guilty pleas, the unreasonableness of their beliefs that national security reasons prevented them from raising their defenses at trial, the fact that they deceived the court on allocution, and the prejudice to the Government if it must retry appellants at this late date. I shall answer each argument in turn.
The eight-month delay is explainable. It took that long for appellants to obtain sufficient information to realize that they were uninformed on critical facts when they entered the plea. Pleas entered in ignorance of material facts are not knowingly entered. It took the United States Government even longer to uncover certain material facts. Some facts that were very material to these defendants and to the validity of their pleas of guilty did not surface until about November 5, 1974, a year after the trial court on November 7, 1973, denied appellants’ motions to withdraw their pleas. I refer to the discovery of Hunt’s November 14, 1972, memorandum to his then attorney, William O. Bittman.1 *342This piece of evidence alone might be sufficient to prove that appellants’ pleas were involuntary since they were induced by the improper payment of money to others and by an unlawful conspiracy to obstruct justice.
Appellants allege that they believed at the time they entered their guilty pleas that “national security” concerns prevented them from disclosing their defense relating to the authority for their acts. They claim to have developed this belief by observing the actions of their co-defendant, Hunt, and correlating these observations with their knowledge of the expected behavior of espionage agents when captured on an unsuccessful mission. The majority opinion concludes that any beliefs they may have developed in this way were refuted by the fact that they were being prosecuted by the Government and by the Government’s proof at trial that the break-in had only domestic purposes. To the contrary, these facts were consistent with their belief that the Government was unable to disclose their true purpose and thus was compelled to prosecute and conceal national security matters by proving only domestic purposes.
The majority opinion finds that appellants acted unreasonably by not contacting other Government officials in order to confirm their beliefs. However, “footsoldiers” such as appellants could hardly be expected to know which officials would be privy to national security matters. It certainly seems reasonable *343that they would rely instead upon a signal from their supervisor who had provided their previous orders. The majority’s position indicates a lack of understanding of the discipline of spies and the great force of character of appellants.
The majority opinion argues that appellants should be held responsible for failing to apprise the court of their beliefs in camera and finds their deliberate deception of the trial court on allocution to be an additional reason to deny withdrawal of the guilty pleas. A federal judge is not necessarily any more to be trusted with, or authorized to receive, top secret material affecting national security than is any other unauthorized person.2 In any event, the important factor is the reasonableness of appellants’ belief that disclosure to the court was also prohibited. The contention that appellants should have known enough to disclose their national security concerns to the court in camera (Majority Op., 168 U.S.App.D.C. at 329, 514 F.2d at 225) is overly fanciful and is exactly the type of knowledge that this court has traditionally not required of defendants in other criminal cases. In its response to the earlier proposed plea bargains and by various other actions, the trial court had made it clear that it was seeking to cause a full disclosure of all facts surrounding the break-in. This was exactly what appellants believed they had a duty to prevent. In light of their beliefs at the time, it would hardly have been reasonable for them to approach the court with their concerns regarding “national security.” Their refusal to answer truthfully on allocution was simply a further implementation of what they believed to be their duty as captured agents.
The inconvenience to the Government in being required to renew its prosecution of appellants is certainly a weak reed on which to base the denial of the withdrawal motions — especially in a criminal case. The convenience of the Government is of no higher dignity than appellants’ rights to present a valid defense to a criminal charge. The possibility of intervening prejudicial publicity and the taking of immunized testimony will of course create certain difficulties at a renewed trial, but the courts have well-developed mechanisms for dealing with such problems. Rather than causing the loss of evidence or witnesses, the delay has permitted the development of large amounts of evidence which will enable both the Government and appellants to better prepare their case for trial. Finally, if the defenses raised by appellants are recognized, a second trial might be unnecessary. Where the possibility exists that a criminal defendant has valid defenses which were not raised as a result of a guilty plea, the mere fact that the Government may find a retrial somewhat more difficult than the original trial should not by itself justify denial of presentencing motions to withdraw the plea.
One further point needs exposure — the contention that appellants’ guilty pleas cannot be withdrawn because they were entered with the advice of counsel, albeit against the advice of appellants’ prior counsel, and because they had a facial appearance of being voluntary. As the majority notes, Judge Sirica made a very exhaustive and thorough inquiry into the voluntariness of the pleas. In response to his inquiries, Judge Sirica received answers which indicated to him, and which at the time would have led any judge to believe, that appellants’ pleas were vol*344untary. The judge’s conduct in this respect cannot be faulted in any way. However, time 'and circumstances have revealed appellants’ involvement with men who had reason to encourage guilty pleas (even purchase guilty pleas, it is alleged) in an effort to suppress facts which might have surfaced at a trial. Also appellants entered their pleas and answered Judge Sirica’s questions in ignorance of the accuracy of Hunt’s factual representations and the pressures brought to bear upon Hunt and the other co-defendants whose lead they were accustomed to follow.
The Government’s arguments also demonstrate a manifest inconsistency. It presently is prosecuting others for obstructing justice in improperly securing these very guilty pleas and simultaneously it insists that these four victims of such obstructive tactics entered voluntary pleas, though it is admitted they were unaware of subtle, allegedly improper pressures which may have induced those pleas. The Government cannot have it both ways. It cannot both assert that the defendants in United States v. Mitchell, et al.3 obstructed justice by unlawfully causing appellants to enter guilty pleas in this case and refuse to recognize that such unlawful conduct caused the guilty pleas in these cases to be entered unknowingly and involuntarily-
While the average citizen may not have chosen to follow appellants’ course of action in this situation, to my mind it was not unreasonable for persons with appellants’ background and training to believe that they were involved in a national security affair and that it was their duty to go to prison to avoid disclosure of what they knew concerning it. Their actions in court were consistent with and can be explained by this belief. They acted to withdraw their guilty pleas only after sufficient evidence had been produced to conclusively demonstrate to them that their belief had been erroneous. Applying the “fair and just” standard, as formulated by the majority, to the facts of this case, I conclude that this is a proper case for the court to permit withdrawal of a guilty plea when a legally valid defense is asserted.
The majority found it unnecessary to reach the legal validity of appellants’ asserted defenses. As I dissent from the conclusions with respect to waiver of these defenses by delay and misconduct, I now turn to a consideration of their merits.
II.
Barker, Martinez, Sturgis and Gonzalez, four refugees from the terror of Castro’s Cuba, allege in their affidavits that they were led to believe by Hunt that they were to work for “a secretly sponsored government intelligence agency” seeking to photograph documents containing “financial information indicating Cuban communist money was going into the Democratic campaign . .” 4 Hunt, their senior officer in the abortive CIA-sponsored invasion of the Bay of Pigs, had an office in the White House at the time the operation was conceived. In order legally to accept or solicit money directly or indirectly from a foreign government, the Democratic Party would have to be registered with the Attorney General as an “organization subject to foreign control which engages in political activities”; failure to register would be a crime punishable by imprisonment for not more than five years or a fine of not more than $10,000, or both. 18 U.S.C. § 2386.5 The Democratic Party was not registered under this statute. Thus Hunt’s *345representations, on their face, plausibly conveyed to the appellants that they were legitimately attempting to assist the United States Government in uncovering evidence of criminal violations of its national security laws involving a foreign power.
Each appellant alleges he believed that he was participating in “an authorized government intelligence operation.” (Emphasis added.) Such a conclusion would be reasonable for anyone dealing with a person who has a White House office regarding a matter involving national security. Barker states that he relied upon Hunt’s representations as to “his authority” (his White House office certainly corroborated this conclusion) and the fact that the operation “had been secretly sponsored by a government intelligence agency of this country . .” 6 Martinez alleges he was led to believe that “this was a government operation.”7 He was also on a CIA retainer at the time. Because both men had previously been employed by the Government to make a surreptitious entry into Dr. Fielding’s office in California, an operation prompted by Daniel Ellsberg’s alleged violation of national security laws in the so-called “Pentagon Papers” case, the credence given by Barker and Martinez to Hunt’s representations was understandable. Similarly, Sturgis alleges in his affidavit that he believed the Watergate operation had been “secretly sponsored by a government intelligence agency of this country” and that “this was an approved agency operation.”8 After the break-in, he remained convinced “that the operation he had participated in was an authorized government intelligence operation.”9 Gonzalez’ affidavit is substantially the same as that of Sturgis. Appellants assert that this mistake as to their authorization would be a defense to the crimes charged.
Mistake of fact is a valid defense to a criminal charge when the defendant’s acts would not be criminal if the facts were as he supposed them to be.10 It is possible to characterize appellants’ mistake as a mistake of fact — i. e., a mistake as to the fact that all necessary authorization for their activities had been obtained.11 The affidavits demonstrate that these men presumed they were acting for the Government in a duly authorized and approved intelligence activity.12 Their reliance on their superiors was broad enough to include a belief that all necessary approval and authorization from government agencies, including the courts, had been obtained. Nothing in the record indicates that they were aware that all legal requirements had not been met. Our courts regularly authorize and approve wire tapping, eavesdropping and surreptitious entries in similar situations, and tactics such as appellants employed are used by government agents even in the investigation of common crimes. A recent record in this court documents confidential court orders which authorize government agents to “Intercept wire communications [etc. and to] install and maintain an electronic *346eavesdropping device within the [room of a building at a specific address] to intercept [certain specified] oral communications . . . concerning [certain] described offenses. Installation of the above described eavesdropping device may be accomplished by any reasonable means, including surreptitious entry or entry by ruse” [i.e. by burglary — minus criminal intent. Cf. D.C.Code § 22— 1801], The same statute under which courts authorize such wire tapping and bugging explicitly affirms “the constitutional power of the President to take such measures as he deems necessary to obtain foreign intelligence information deemed essential to the security of the United States . . . .” 13 This is a clear recognition by Congress^ that the President possesses additional power and authority in this area. Information that Castro’s communist regime was contributing to the Democratic National Committee would be “foreign intelligence information” within the meaning of the statute.
The New York Court of Appeals decision in People v. Weiss, 276 N.Y. 384, 12 N.E.2d 514 (1938), is indistinguishable from the present case and is the leading case for the proposition that a mistake as to the authority of an apparent official is a defense in a criminal case. There a man purporting to be a detective and displaying a state secret service badge approached two citizens and requested assistance in the arrest of an individual he described as a murderer. In good faith and in the belief that they were performing their duty, both citizens assisted the stranger in the arrest and detention of a man who proved to be entirely innocent. The citizens were charged with kidnapping, and the trial court refused the proffer of evidence of their good faith mistake. The Court of Appeals reversed the trial court on this evidentiary ruling, stating:
If in good faith they believed that they were acting within the law, there could have been no intent to act “without authority of law.” Their belief or disbelief indicates intent or lack of it, Wallace v. United States, 162 U.S. 466, 477, 16 S.Ct. 859, 40 L.Ed. 1039, and they were entitled to testify in respect to their intent based upon their belief, People v. Flack, 125 N.Y. 324, 335, 26 N.E. 267, 11 L.R.A. 807; Dehn v. Mandeville, 68 Hun. 335, 337, 22 N.Y.S. 984.
No matter how doubtful the credibility of these defendants may be or how suspicious the circumstances may appear, we cannot say as matter of law that, even in so strong a case as this for the prosecution, the jury was not entitled to consider the question whether defendants in good faith believed that they were acting with authority of law. We are, therefore, constrained to reverse the judgment of conviction and order a new trial for the purpose of submitting that question of fact to the jury.
12 N.E.2d at 515 — 16 (emphasis added); see also 1 Wharton’s Criminal Law and Procedure § 157 (1974 Cumm.Supp.). *347The facts in Weiss suggest that a warrant for the arrest of the alleged murderer could previously have been obtained, but the court did not require the defendants to assert or prove that they had asked the spurious policeman if he had taken that step. Weiss is solid authority for the conclusion that appellants’ reliance on their superiors for authorization of their activities would present a valid mistake of fact defense.
Appellants’ affidavits, which on appeal must be accepted, set forth sufficient grounds for a reasonable belief in the fact that they were performing a legitimate, approved and authorized government operation: their prior associations with Hunt, his connection with the White House and the CIA, Martinez’ retainer by the CIA, and the furnishing of identification documents by the CIA, all lent credibility to this belief. Thus appellants had reasonable grounds for a good faith reliance on Hunt’s factual representations. To require a greater showing of good faith is to change the law on mistake of fact.
It may be argued that appellants were mistaken as to the fact of their authorization but still lack a defense since they engaged in activity which could not be legally authorized. However, any determination that warrantless bugging of a domestic organization could never be legally sanctioned would be a post hoc conclusion. Ever since the Presidency of Franklin Delano Roosevelt, and possibly since the time of President Wilson,14 the Government has construed the law to permit warrantless electronic surveillance as a lawful and reasonable exercise of the presidential (executive) power to safeguard the national security from domestic as well as foreign threats. Not until June 19, 1972, two days after the Watergate break-in, did the Supreme Court for the first time reject this claim and use of executive power. See United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).15 These four men can hardly be held to a prophetic knowledge of constitutional law and to a standard not met by any President or Attorney General or other individual in the executive branch of the Government since the New Deal era.16
Although the foregoing argument may establish the existence of a valid defense, it is unnecessary to engage in the relatively difficult determination whether appellants’ mistake as to the authorization for their actions is a mistake of fact. As a general rule, ignorance of the law is no excuse to a criminal offense. However, this general rule concerning mistake of law does not apply where a specific intent is essential to constitute the crime charged and a reasonable mistake of law negates the existence of such intent.17 The general rule is like*348wise inapplicable in a case where the law is not settled, is obscure or is susceptible of more than one reasonable construction.18
Appellants pled guilty to burglary, possession of listening and wire tap devices, attempting to intercept oral and wire communications, and conspiracy to commit these offenses.19 The crime of burglary requires that an entry be made with the specific intent to commit a crime. Since the activities following the entry would not have been a crime if the authorization appellants believed existed actually existed, their mistake of law would negate the required specific intent. The remaining offenses require “willfulness” which may also be negated by a bona fide mistake of law. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); Yarborough v. United States, 230 F.2d 56 (4th Cir.), cert. denied, 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487 (1956). Thus even assuming that appellants’ mistake was one of law rather than of fact, i. e., a mistaken belief that authorization for national security wire tapping of a domestic organization could legally be obtained, that mistake could negate a necessary element of each offense charged and would therefore be a legally valid defense. It is of course unnecessary for us to determine at this point whether appellants’ asserted defenses will ultimately prove to be good defenses to the charges since it is sufficient for withdrawal of the guilty pleas that appellants merely raise defenses which will be legally valid if proven at trial to exist.
The present case may also fall within the exception to the general rule where the law is unsettled or obscure. It is an understatement to assert that the law regarding wire tapping in national security cases was not settled at the time of the Watergate break-in. Presidents and Attorneys General had participated in such activity for over thirty years and had uniformly asserted its validity. There was no opinion by the Supreme Court to the contrary until two days after the instant offenses.
III.
One United States District Judge in this circuit has already considered and determined what effect and influence some of the misrepresentations and pressures referred to above had on two of the appellants. On July 31, 1974, Judge Gesell adjudged sentences upon Barker and Martinez for their role in the Fielding (Ellsberg) break-in in Los Angeles. See United States v. Ehrlichman, Liddy, Barker and Martinez, U.S. District Court, District of Columbia, Criminal No. 74 — 116. He summed up the relationship of these two “footsoldiers” to their superiors in a sentence:
“You were duped by high Government officials.”
Sentencing Transcript, U.S. District Court, District of Columbia, Criminal No. 74-116, July 31, 1974, p. 10. The court then suspended any sentence and placed Barker and Martinez on probation for a three-year period. Judge GeselTs finding that these men were duped seems equally applicable to their roles, and to those of Sturgis and Gonzalez, in the Watergate break-in. The two clandestine operations had much in common and all the participants in the Ellsberg operation also participated in the Watergate operation under much the same induce*349ment. That “dupes” could possess the criminal intent necessary to support charges of burglary and conspiracy is conceivable, but on these facts it is highly improbable. The finding that they were “duped” is practically equivalent to finding that they did not possess the requisite criminal intent. An even greater leap of faith is required to find that guilty pleas entered by “dupes” under potentially great associational, moral and economic pressure were voluntary. The only “fair and just” conclusion is to allow appellants to withdraw their pleas and assert their defense of mistake in a second trial. The defense may prove unsuccessful, but that decision does not properly lie with this court at this time.
It is apparent that the majority fails to recognize the high character and estimable motives of these four individuals. These men are super-patriots; they have been and remain willing to martyr themselves in the liberation of Cuba from communist rule. They have acted from the purest of motives and in the utmost good faith. These men did not intend to steal. They sought only intelligence — oral conversations and photographs of letters and documents which they were to take on the premises. The burglary (surreptitious entry and by ruse)20 is part and parcel of the authorization for most bugging and wire tapping operations. See discussion at page 9 supra.
Both the majority and the prosecutor recognize that these offenses are essentially political. While “custom and practice” is no defense, the political-criminal nature of the charges and the apparent prevalence of such intelligence activity should be parameters in the equation by which the criminal intent of the appellants is judged.21 What the majority does here, in effect, by failing to recognize the validity of their asserted defenses, is to hold these appellants criminally responsible for not specifically inquiring whether Hunt had obtained the written authorization required by the Act of June 19, 1968,22 or determining that they were operating in a project that was within the recognized exemptions of that statute.23 This demands of them a prescient knowledge of constitutional law and of our legal system. Hunt’s representations reasonably conveyed the impression that the Watergate operation was duly authorized and approved. Greater reliance is not required to support a claim of mistake of fact or to come within the recognized exception to mistake of law.
At the very least appellants are entitled to an evidentiary hearing on their allegations, which was denied them. See *350Majority Op., 168 U.S.App.D.C., p. 352, 514 F.2d, p. 248.
I accordingly dissent.
APPENDIX
THE WHITE HOUSE WASHINGTON
CONFIDENTIAL May 21> 1940
MEMORANDUM FOR
THE ATTORNEY GENERAL
I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary and normal circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.
However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.
It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called “fifth columns” in other countries and in preparation for sabotage, as well as in actual sabotage.
It is too late to do anything about it after sabotage, assassinations and “fifth column” activities are completed.
You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.
(s) F. D. R.
OFFICE OF THE ATTORNEY GENERAL WASHINGTON, D.C.
July 17, 1946
The President,
The White House.
My dear Mr. President:—
Under date of May 21, 1940, President Franklin D. Roosevelt, in a memorandum addressed to Attorney General Jackson, stated:
“You are therefore authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies.”
This directive was followed by Attorneys General Jackson and Biddle, and is being followed currently in this Department. I consider it appropriate, however, to bring the subject to your attention at this time.
It seems to me that in the present troubled period in international affairs, accompanied as it is by an increase in subversive activity here at home, it is as necessary as it was in 1940 to take the investigative measures referred to in President Roosevelt’s memorandum. At the same time, the country is threatened by a very substantial increase in crime. While I am reluctant to suggest any use whatever of these special investigative measures in domestic cases, it seems to be imperative to use them in cases vitally affecting the domestic security, or where human life is in jeopardy.
As so modified, I believe the outstanding directive should be continued in force. If you concur in this policy, I should appreciate it if you would so indicate at the foot of this letter.
*351In my opinion, the measures proposed are within the authority of law, and I have in the files of the Department materials indicating to me that my two most recent predecessors as Attorney General would concur in this view.
Respectfully yours,
/s/TOM C. CLARK
Attorney General
July 17, 1947 [sic]
I concur.
/s/ HARRY S. TRUMAN
ADMINISTRATIVELY
CONFIDENTIAL
THE WHITE HOUSE WASHINGTON
June 30, 1965
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
I am strongly opposed to the interception of telephone conversations as a general investigative technique. I recognize that mechanical and electronic devices may sometimes be essential in protecting our national security. Nevertheless, it is clear that indiscriminate use of these investigative devices to overhear telephone conversations, without the knowledge or consent of any of the persons involved, could result in serious abuses and invasions of privacy. In my view, the invasion of privacy of communications is a highly offensive practice which should be engaged in only where the national security is at stake. To avoid any misunderstanding on this subject in the Federal Government, I am establishing the following basic guidelines to be followed by all government agencies:
(1)No federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved, (except in connection with investigations related to the national security).
(2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General.
(3) All federal agencies shall immediately conform their practices and procedures to the provisions of this order. Utilization of mechanical or electronic
devices to overhear non-telephone conversations is an even more difficult problem, which raises substantial and unresolved questions of Constitutional interpretation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency’s practices are fully in accord with the law and with a decent regard for the rights of others.
Every agency head shall submit to the Attorney General within 30 days a complete inventory of all mechanical and electronic equipment and devices used for or capable of intercepting telephone conversations. In addition, such reports shall contain a list of any interceptions currently authorized and the reasons for them.
/s/ LYNDON B. JOHNSON
DEPARTMENT OF JUSTICE November 3, 1966
MEMO NO. 493
TO: All United States Attorneys
FROM: Ramsey Clark
Acting Attorney General
* * * Present practice, adopted in July 1965 in conformity with the policies declared by President Johnson on June 30, 1965 for the entire Federal establishment, prohibits the installation of listening devices in private areas (as well as the interception of telephone and other wire communications) in all instances other than those involving the collection of intelligence affecting the national security. The specific authorization of the Attorney General must be obtained in each instance when this exception is invoked. Intelligence data so collected *352will not be available for investigative or litigative purposes. (Emphasis added.)
He sfc * * Jf
. This was first printed in the November 5, 1974, issue of The Washington Post, Washington, D. C., at A — 12, and has been the subject of testimony in the recent trial of the obstruction of justice charges, n. 3 infra. We take judicial notice thereof. Fletcher v. Evening Star Newspaper Co., 77 U.S.App.D.C. 99, 133 F.2d 395 (1942); Hipp v. Hipp, 191 F.Supp. 299 (D.D.C.1960). The account reads:
Following is the text of a memorandum written by Watergate defendant E. Howard Hunt Jr. Nov. 14, 1972, five months after the break-in, pressing the Nixon administration for pardons and hush money. The memo, initially given to Hunt’s attorney, William O. Bittman, was introduced yesterday by prosecutors at the conspiracy trial.
REVIEW AND STATEMENT OF PROBLEM
The seven Watergate defendants and others not yet indicted, bugged DNC offices initially against their better judgment, knowing that Larry O’Brien was seldom there, and that many items of interest were being moved to Florida. Furthermore, the defendants pressed an alternate plan to bug O’Brien’s Fontainebleau convention suite, before occupancy, a low-risk high-gain operation which was rejected.
The seven defendants again protested further bugging of DNC Headquarters on June 16-17, the intercepted conversations by then having shown clearly that O’Brien was not using his office. Again, objections were overridden and the attempt was loyally made even though money for outside guards was struck from the operational budget by Jeb Magruder. In fact the entire history of GEMSTONE was characterized by diminishing funding coupled with increasing demands by those who conceived and sponsored the activity.
If initial orders to bug DNC Headquarters were ill-advised, the defendants’ sponsors compounded the fiasco by the following acts:
1. Indecisiveness at the moment of crisis.
*3422. Failure to quash the investigation while that option was still open.
3. Allowing Hunt’s safe to be opened and selected contents handed to the FBI.
4. Permitting an FBI investigation whose unprecedented scope and vigor caused humiliation to families, friends and the defendants themselves.
5. Granting immunity to Baldwin.
6. Permitting defendants to fall into the hands of a paranoid judge and three self-admitted liberal Democrat prosecutors.
7. Failure to provide promised support funds on a timely and adequate basis; continued postponements and consequent avoidance of commitments.
8. An apparent wash-hands attitude now that the election has been won, heightening the sense of unease among all defendants who have grown increasingly to feel that they are being offered up as scapegoats ultimately to be abandoned.
Items for consideration:
1. Once the criminal trial ends, the DNC civil suit resumes. In his deposition John Mitchell may well have perjured himself.
2. Pending are three investigations by congressional committees. The Democratic Congress is not going to simply let the Watergate affair die away.
3. The media are offering huge sums for defendants stories. For example, an offer to one defendant for his “autobiography” now stands at $745,000.
4. The Watergate bugging is only one of a number of highly illegal conspiracies engaged in by one or more of the defendants at the behest of senior White House officials. These as yet undisclosed crimes can be proved.
5. Immunity from prosecution and or judicial clemency for cooperating defendants is a standing offer.
6.Congressional elections will take place in less than two years.
Defendants’ Position
The defendants have followed all instructions meticulously, keeping their part of the bargain by maintaining silence. They have not, until now, attempted to contact persons still in positions of responsibility in an effort to obtain relief and reassurance, believing preelection security to be a primary consideration.
The administration, however, remains deficient in living up to its commitments. These commitments were and are:
1. Financial support
2. Legal defense fees
3. Pardons
4. Rehabilitation
Having recovered from post-election euphoria, the administration should now attach high priority to keeping its commitments and taking affirmative action in behalf of the defendants.
To end further misunderstandings the seven defendants have set Nov. 27 at 5 p.m. as the date by which all past and current financial requirements are to be paid, and credible assurances given of continued resolve to honor all commitments. Half-measures will be unacceptable.
Accordingly, the defendants are meeting on Nov. 25 to determine our joint and automatic response to evidence of continued indifference on the part of those in whose behalf we suffered the loss of our employment, our futures and our reputations as honorable men.
The foregoing should not be misinterpreted as a threat. It is among other things a reminder that loyalty has always been a two-way street.
. The Freedom of Information Act does not permit secret national defense and foreign policy material to be disclosed to a federal judge, even in camera. EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1972):
We do not believe that Exemption 1 permits compelled disclosure of documents, such as the six here that were classified pursuant to this Executive Order. Nor does the Exemption permit in camera inspection of such documents to sift out so-called “nonsecret components.”
Id. at 81, 93 S.Ct. at 833.
What has been said thus far . . . also negates the proposition that Exemption 1 authorizes or permits in camera inspection of a contested document bearing a single classification so that the court may separate the secret from the supposedly nonsecret and order disclosure of the latter.
Id. at 84, 93 S.Ct. at 834.
. U.S. District Court, District of Columbia, Criminal No. 74-110.
. Affidavit of Barker at 4, Appellants’ App. at. 15.
. 18 U.S.C. § 2386(A) provides in part:
An organization is “subject to foreign control” if:
(a) it solicits or accepts financial contributions, loans, or support of any kind, directly or indirectly, from, or is affiliated directly or indirectly with, a foreign government or a political subdivision thereof, or an agent, agency, or instrumentality of a foreign government or political subdivision thereof
. Affidavit of Barker at 1, Appellants’ App. at 12.
. Affidavit of Martinez at 6, Appellants’ App. at 25.
. Affidavit of Sturgis at 1, 3, Appellants’ App. at 27, 29 (emphasis added).
. Id at 6, Appellants’ App. at 32 (emphasis added).
. 1 Wharton’s Criminal Law and Procedure § 157 (1957, 1975 Cumm.Supp.); Williams, Criminal Law: The General Part §§ 51 & 68 (2d ed. 1961); Perkins on Criminal Law 939-44 (2d ed. 1969); 21 Am.Jur.2d Criminal Law § 93 (1965). See also Stone v. United States, 167 U.S. 178, 189, 17 S.Ct. 778, 42 L.Ed. 127 (1897).
. Appellants were allegedly mistaken not only as to the existence of official authorization for their operation, but also as to their status as government agents charged with uncovering rumored financial ties between the Democratic Party and Castro’s regime in Cuba. On the facts here, it must be assumed that appellants could convince a jury that they had indeed entertained these mistaken beliefs at the time of the break-in. Hence no further reference to this mistake of fact is necessary.
. No brief need be held for those in this affair —Liddy, Hunt and MfcCord — who knew they were not conducting the Watergate operation on governmental authority, but the allegations in the affidavits, which we must here accept as true, indicate fhat appellants are in a different category.
. 18 U.S.C. § 2511(3) provides:
(3) Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to .protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power. (Added Pub.L. 90-351, title III, § 802, June 19, 1968, 82 Stat. 213 [and amended Pub.L. 91-358, title II, § 211(a), July 29, 1970, 84 Stat. 654.)].
. It is reported that on May 13, 1915, in the aftermath of the sinking of the Lusitania, President Wilson authorized William J. Flynn, Chief of the U.S. Secret Service, to tap the telephones of the German Embassy and the private homes of the Ambassador and his attaches. William J. Flynn, Tapped Wires, Liberty, June 2, 1928, at 19; Colin Simpson, Lusitania 190 (1972). As to the possible use of surreptitious entry (burglary) at this time by the United States Government, see Lusitania, supra, 233-37 and citations to archival documents in nn. 1, 2 and 3, on the affair involving the burglary of the Austrian Consulate in Cleveland on July 18, 1915, and the theft of the papers of a chemist named Ritter von Rettegh who had given an affidavit concerning the possible existence of explosives aboard the Lusitania.
. The Supreme Court in United States v. United States District Court dealt only with the domestic aspects of national security surveillance:
We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.
407 U.S. at 321-22, 92 S.Ct. at 2139.
. The precise Presidential directives of Franklin D. Roosevelt, Harry S. Truman and Lyndon B. Johnson authorizing warrantless wire tapping, and part of a memorandum by then Acting Attorney General Ramsey Clark affirming the policy announced by President Johnson, are reproduced as an Appendix to this opinion.
. On the other hand, the general rule in criminal cases is that a mistake of law upon the part of the accused does not constitute justification for his act; that, if he deliberately and intentionally commits the prohibited act, it is criminal, regardless of his belief *348that his act was lawful; except in cases where ignorance of the law may disprove the existence of a required specific intent. (Emphasis added.)
Townsend v. United States, 68 App.D.C. 223, 229, 95 F.2d 352, 358, cert. denied, 303 U.S. 664, 58 S.Ct. 830, 82 L.Ed. 1121 (1938). See also United States v. Squires, 440 F.2d 859, 863-64 (2d Cir. 1971); Long v. State, 5 Terry 262, 65 A.2d 489, 497 (Del.1949); United States v. One Buick Coach Automobile, 34 F.2d 318, 320 (N.D.Ind.1929); People v. Goodin, 136 Cal. 455, 69 P. 85, 86 (1902).
. James v. United States, 366 U.S. 213, 221-22, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961); California v. Latimer, 305 U.S. 255, 261, 59 S.Ct. 166, 83 L.Ed. 159 (1938); United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 78 L.Ed. 381 (1933); Burns v. State, 123 Tex.Cr. 611, 61 S.W.2d 512, 513 (1933).
. The majority opinion vacates all but one count of burglary, one count of possessing listening devices and the conspiracy count. See Majority Op., nn. 1, 5.
. D.C.Code § 22-1801(b) provides:
(b) Except as provided in subsection (a) of this section, whoever shall, either in the night or in the daytime, break and enter, or enter without breaking, any dwelling, bank, store, warehouse, shop, stable, or other building or any apartment or room, whether at the time occupied or not, or any steamboat, canalboat, vessel, or other watercraft, or railroad car or any yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade, with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same, or to commit any criminal offense, shall be guilty of burglary in the second degree. Burglary in the second degree shall be punished by imprisonment for not less than two years nor more than fifteen years.
. The 1972 Presidential election was not the first to be plagued with political espionage. In an interview former President Nixon granted James J. Kilpatrick, printed in the Washington Star-News on Thursday, May 16, 1974, page A — 1, col. 1, he revealed that J. Edgar Hoover, the Director of the Federal Bureau of Investigation (FBI), had apprised him of certain bugging operations:
He [President Nixon] recalled how much he had resented it when he learned that his own offices had been bugged in his 1962 gubernatorial campaign. He also remembered 1968 with equal resentment. “There was not only surveillance by the FBI, but bugging by the FBI, and (J. Edgar) Hoover told me that my plane in the last two weeks [of the 1968 presidential campaign] was bugged.”
These bugging offenses apparently were not investigated by Congress or prosecuted.
. 18 U.S.C. § 2511 et seq. (1970).
. 18 U.S.C. § 2511(3), supra n. 13.