United States v. Barker

WILKEY, Circuit Judge

(dissenting):

Judge Wright’s opinion for the majority dramatically — and accurately — describes the four Cuban-American appellants as “the foot soldiers of the Watergate Break-in.” That characterization, in the context of this case, naturally prompts the question: How much do the “foot soldiers” customarily know of the plans and purposes of their High Command? This question epitomizes the issue which confronted Judge Sirica when the appellants sought to withdraw their pleas of guilty, and is at the core of their appeal here.

As “foot soldiers,” they took no part in planning the Watergate break-in and were informed only vaguely of its purpose. Their willingness to enlist in the operation and help carry it out under these conditions derived primarily from their staunch faith in one man, E. Howard Hunt. Revered in Miami’s Cuban-American community as an active participant in the fight to liberate Cuba, Hunt carried high White House and CIA credentials. The appellants had no reason to doubt his assertion that he was part of a special intelligence unit, or to question his authority to order clandestine operations for “national security” reasons. Long experience with the CIA, and in secret missions directed against the Castro regime, had taught the appellants the importance of complete reliance on, and obedience to, their supervisor. They were accustomed to operate on a “need-to-know” basis. It did not occur to them to second-guess Hunt’s decisions, let alone question his authority.

On 15 January 1973, following Hunt’s lead, the appellants pleaded guilty to all counts charged against them in connection with the break-in. It was clear to them that neither Hunt nor the government wanted the “national security” origins of this or other operations in which they had participated disclosed; thus, it was their duty not to raise a defense based upon their belief in the authorized nature of the break-in. On 14 September 1973, prior to final sentencing — but after the Senate Watergate hearings of that summer had exposed the true origins of the break-in, and the motivation of the principals — the appellants moved to withdraw their guilty pleas. Their grounds were essentially two: (1) they had a legally valid defense to the charges against them, based on their mistake as to Hunt’s authority;1 (2) their guilty pleas were entered involuntarily, because based upon a belief that national security considerations required their silence. The appellants submitted extensive affidavits in support of their motion. On 7 November 1973, without an evidentiary hearing on the appellants’ factual assertions and without opinion,2 Judge Sirica denied the withdrawal motions.

The majority, with the exception of Chief Judge Bazelon, do not reach the question whether the appellants have a valid defense. They hold instead that, even if the appellants can prove their innocence, under the circumstances Judge Sirica did not abuse his discretion in denying the motion. This is hard to accept.

Although the decision whether to allow the withdrawal of a guilty plea is always discretionary with the trial judge,3 the federal courts have consistently held that presentence motions should be granted whenever such appears “fair and just.” 4 I agree with the *353majority’s conclusion that this is the proper standard by which to judge the withdrawal motion filed in the instant case. Yet, under this standard, the most important factor to be weighed is whether the movant has tendered a valid defense.5 As the majority summarizes the case law, “where the motion does assert legal innocence, presentence withdrawal should be rather freely allowed.”6

The reason for this rule of great liberality in granting presentence withdrawal motions is evident. No due process guarantee is more cherished than the right of the individual to a trial, in which he may confront his accusers and present a defense to the criminal charges against him. Where a defendant’s motion asserts a legally valid defense, only the most compelling of societal interests can justify a court in denying that motion and knowingly sending a possibly innocent man to prison. There are few cases where such a man ought not be allowed to withdraw his guilty plea, before sentencing, under the “fair and just” standard.

As Part II of this opinion explains in detail, the appellants in the instant case have presented a potentially successful defense, amply supported by affidavit, to the charges against them. Thus, they have fulfilled the most important requirement for withdrawal of their guilty pleas. The majority takes the position, however, that regardless whether the appellants are in fact innocent of the crimes attributed to them, they must be held to their earlier pleas — because they have not presented adequate justification for delaying the assertion of their innocence. It is to this position that I must register a strong dissent. On the facts of this case it is clear beyond doubt why they delayed — or were delayed — until September 1973 in asserting their innocence. It appears equally clear to me that fairness and justice require that the appellants’ withdrawal motions be granted.

I. THE ADEQUACY OF APPELLANTS’ REASONS FOR DELAYING ASSERTION OF THEIR DEFENSES

The majority begins its argument with the unquestionably correct observation that a guilty plea is a “grave and solemn” action,7 not to be taken lightly or whimsically retracted. If an assertion of legal innocence were always sufficient justification for withdrawal, the majority contends, defendants who entered their guilty pleas for “tactical” reasons could capriciously decide to change their tactics and present their defense to the jury at any time prior to sentencing. In order to provide a check to such “game-playing” with the court and to ensure that the submission of a guilty plea does not become a mere formality, the majority concludes:

[A] court, in addressing a withdrawal motion, must consider not only whether the defendant has asserted his innocence, but also the reason[s] why the defenses now presented were not put forward at the time of original pleading.8

These reasons for “delaying” must then be weighed against countervailing state interests to determine whether allowing withdrawal would be “fair and just” under the circumstances of the individual case.

The majority essentially advances two reasons why the appellants should not be allowed a trial in which to assert their *354defenses.9 The first is the prejudicial effect the delay between guilty plea and withdrawal motion has had on the Government’s ability to prosecute its case.10 The second is the appellants’ deliberate concealment from Judge Sirica during voir dire of their true reasons for pleading guilty. Equipped with these elements of “possible prejudice to legitimate prosecution interests” and “flagrant abuse of judicial processes,” the majority assesses the appellants’ reasons for delaying the assertion of their innocence and determines that those reasons are inadequate under the circumstances to justify withdrawal of their guilty pleas.

The majority’s analysis is faulty in at least three regards. First, although the majority weighs the appellants’ initial reason for not asserting their innocence — viz., their belief that national security considerations required their silence — it ignores entirely the reason for the eight-month delay in presenting their defense — viz., that it was not until the late summer of 1973 that the appellants could have had enough facts to be assured that the break-in was conceived and executed for purely political purposes. Second, the majority exaggerates both the degree to which the delay has prejudiced the Government’s ability to prosecute this case and the extent to which the appellants’ dissemblance with Judge Sirica abused judicial processes. Third, the “reasonableness” standard the court sets up for testing the appellants’ mistaken belief — if, as appears, it is a detached “reasonable man” standard — is not only wholly inappropriate on the facts of this case but of questionable validity as applied to all presentence withdrawal motions.

A. Appellants’ Reasons for Delaying Assertion of Their Defenses

When the majority opinion speaks of the appellants’ “delay” in presenting their defenses, it uses the term in two senses: first, to describe their initial decision to plead guilty rather than assert their innocence; second, to describe the eight-month gap between their guilty pleas and their withdrawal motions. When the opinion assesses the reasons for the “delay,” however, it presents only the explanation for the first decision. No rationale is given for the appellants’ determination after eight months to attempt to present their defenses. The impression is left that the “delay” in this latter sense was the product simply of a capricious change in tactics by the appellants.11

*355In view of the fact that the prejudice to the Government’s ability to prosecute which may have resulted from the eight-month hiatus between plea and motion is the primary argument advanced by the majority for denial of withdrawal, the question whether that delay had a rational basis is of no small moment. The appellants’ position gains considerable strength if the inconvenience to the Government is countered not only by an explanation for their original decision to remain silent but also by an entirely consistent reason for allowing eight months to lapse before attempting to change their plea.

According to appellants’ affidavits,12 they were convinced at the time of their trial that the break-in had been a clandestine operation sponsored and approved by a legitimate Federal government intelligence agency. They pled guilty because they believed national security interests precluded them from disclosing the nature of their activities, and because they interpreted the guilty plea of their supervisor, Hunt, as a directive that they follow the same course of action. New facts about the operation were revealed in the months immediately following their pleas of 15 January 1973 which could have given them reason to believe their assessment was incorrect. The Executive’s public condemnation of the break-in and disavowals of sponsorship, far from weakening the appellants’ position, were consistent with it:

What occurred after we were arrested at the Watergate continued to evidence in my mind that what we had engaged in had been a government intelligence operation. When one is apprehended in such an operation one of two things happen. Either you go to jail because the government denies the entire thing or you are not incarcerated because the government makes secret arrangements or publicly acknowledges responsibility for the operation. Those who have been apprehended have no choice in that decision. If the government does not acknowledge responsibility then assistance is provided in the form of expenses, attorneys, and financial help for the families.13

True to the appellants’ perception, attorneys and financial aid were provided them, through. Mrs. Hunt, despite the Executive’s denial of any responsibility for the operation.14

On 23 March 1973, when the appellants were provisionally remanded to the custody of the Attorney General for an in-depth study to assist the court in imposing sentence,15 Judge Sirica read to the courtroom a letter to him from defendant James McCord. In pertinent part, it follows:

Certain questions have been posed to me from your honor through the probation officer, dealing with details of the case, motivátions, intent and mitigating circumstances.
I will state the following to you at this time which I hope may be of help to you in meting out justice in this case:
*3561. There was political pressure applied to the defendants to plead guilty and remain silent.
2. Perjury occurred during the trial in matters highly material to the very structure, orientation, and impact of the government’s case, and to the motivation and interest of the defendants.
3. Others involved in the Watergate operation were not identified during the trial, when they could have been by those testifying.
4. The Watergate operation was not a CIA operation. The Cubans may have been misled by others into believing that it was a CIA operation. I know for a fact that it was not.16

Although this letter fell like a bombshell on the public,17 it would appear to have supported, more than weakened, the appellants’ view that the Executive had required their guilty pleas in order to protect the integrity of a highly sensitive national security matter. The perjury of witnesses and concealment of the involvement of others was certainly consistent with that belief. That the appellants may have been mistaken in thinking the CIA itself had sponsored the operation was not news to them. McCord had asserted as much to the appellants privately before the trial.18 That CIA tools and identification papers were used for both the Ellsberg and Watergate break-ins,19 however, indicated to the appellants that those operations at least enjoyed the CIA’s cooperation,20 and buttressed their belief that “he [Hunt] was part of a national security intelligence agency that had greater jurisdiction than both the FBI and CIA.” 21 McCord’s letter to Judge Sirica, then, was certainly not grounds for the appellants to abandon their position.

Moreover, although the Executive officially condemned all attempts to cover up the source of Hunt’s authority and the nature of his activities, it was not until 27 April 1973 that the fact of the Ellsberg break-in, an affair closely connected in the minds of the appellants with the Watergate break-in, was revealed to the public.22 Barker and Martinez had engaged in the former operation in complete reliance on Hunt’s representation that it was an authorized national security matter.23 On 22 May 1973 President Nixon issued a statement, partially reproduced in the margin,24 *357which deplored the Ellsberg break-in, but confirmed the appellants’ belief that it was the product of a highly secret White House unit, independent of both the CIA and FBI, and authorized by the President “to stop security leaks and to investigate other sensitive security matters.” Hunt had recruited the appellants for the Watergate break-in with the assurance that, like the Ellsberg break-in, it involved a highly sensitive question of national security. The President, in his 22 March statement, expressly asserted that the intelligence activities of the “Special Investigation Unit” “had no connection” with the break-in of the Democratic headquarters; but, in view of the participation of the same core group of individuals in both operations, the appellants understandably could have continued to disbelieve the President’s disclaimers.

From the latter part of May through the first week of August 1973, however, a steady stream of witnesses described to the Senate Select Committee on Presidential Campaign Activities the political climate inside the White House before the 1972 elections and the lengths to which some individuals were willing to go to ensure a smooth re-election for the President. In particular, the Committee, and the public, were informed in detail of the genesis of “Operation Gemstone,” characterized in the Committee’s Report as “a comprehensive political intelligence-gathering program for CRP [i. e. —the Committee to Re-elect the President].”25 Liddy, Hunt, and McCord, according to the testimony, were all involved with Project Gemstone; and it was out of this program that plans for the Watergate operation arose.26 The message, after three months of testimony, was clear: if the Executive had attempted to confine the scope of investigation into the break-in, it was not for sensitive national security reasons, but for purely political purposes.

Nevertheless, neither Liddy nor Hunt had testified before the Senate Committee during the first stage of its hearings. Incriminating as the testimony had been, it was surely a difficult decision for the disillusioned appellants finally, on 15 September 1973, to move that the District Court allow them to withdraw their guilty pleas.27 The conclusion that they *358had been seriously misled — that their patriotic silence had not helped the country, but only hurt them — could no longer be avoided.

When the majority decries the appellants’ eight-month delay in seeking withdrawal, therefore, it cannot ignore the events which transpired between the January plea and the September motion. The facts behind the genesis of the Watergate break-in were revealed — and are still being revealed — with excruciating slowness. It was not until after the end of Phase I of the Senate hearings that the appellants could be certain their initial assessment was wrong. When this highly important factor is placed in the balance, whatever prejudice has resulted to the Government from the eight-month delay becomes much more justifiable. Particularly in view of the fact that no irreparable damage was done to the Government’s case, as the next section will explain, the scale of “fairness” and “justice” would appear to tip decidedly in favor of the appellants.

B. The Interests Militating Against Acceptance of Appellants’ Motions

The majority essentially advances two reasons why it would not be “fair and just” to allow the appellants to withdraw their guilty pleas. The first is that the delay between plea and withdrawal ■motion has substantially prejudiced the Government’s ability to prosecute its case. Unquestionably, the delay has inconvenienced the Government. Witnesses and evidence will have to be reassembled for trial and a jury selected. Also, the prosecution will have to show in presenting its case that it has not utilized testimony given by the appellants to the grand jury and to congressional committees pursuant to their receipt of “use immunity.”28 That these requirements have worked a substantial prejudice to the Government’s interest, however, is doubtful.

Reassembling the case for trial would not appear inordinately difficult. The Government does not contend any witnesses have died or that evidence has been destroyed. Indeed, the balance of advantage is quite the other way: since the time the appellants entered their guilty pleas a great deal of new evidence has come to light. Moreover, the majority exaggerates the difficulty of selecting an impartial jury. It is true that prospective jurors may have been exposed to the publicity surrounding the facts of the original trial; but that publicity was not of the sort which could have predisposed their judgment on the primary issue which would be involved in a new trial. Neither Liddy nor McCord, the only two defendants who went through a full trial, based his defense on a belief that he had been engaged in an authorized national security operation. Additionally, it may be questioned whether at *359any point during the eight months between the appellants’ guilty pleas and their withdrawal motions the public’s attention was focused on the participation of the four appellants here, the “foot soldiers” of the break-in. The on-going concern of the media was with the involvement in the affair of high government officials, rather than the motivation of these four recruits.

Finally, that the appellants were granted “use immunity” in order to testify before the grand jury and the appropriate congressional committees does not prevent the prosecution from using any and all evidence against the defendants which it could have used in the original trial, and all evidence which it can show is derived from sources independent of the protected testimony.29 To be required to make such a showing obviously places a burden on the prosecution it would rather avoid, but such inconvenience certainly does not rise to the level of significant prejudice to the prosecution’s case. Indeed, it would appear that, far from causing the Government to lose evidence, the eight-month delay has provided both the Government and the appellants with a wealth of new evidence which would greatly enhance the truth-determining process. If the Government is interested in ascertaining the true circumstances of the appellants’ involvement, a trial now would be vastly superior to one held in January of 1973.

Thus, it is clear that while the appellants’ delay in asserting their defenses has in some respects inconvenienced the Government, the prosecution’s case has suffered no substantial prejudice. Particularly when balanced against the strong interest in not sending possibly innocent men to jail, the Government’s rationale for denying the appellants the opportunity to present their defenses is unpersuasive.

The majority’s second argument for holding the appellants to their guilty pleas is even more unconvincing. According to the majority, it is important that “appellants’ withdrawal motion is premised on claims directly contrary to the representation which appellants made to Judge Sirica during the plea-taking procedure.” 30 Since they “willfully abused and misled the court,” they should not now be allowed to recant.

In the first place, it should be observed that all motions to withdraw guilty pleas are effectively motions to allow the defendant to disclaim his earlier position. Certainly, it tries the patience of trial judges to be told one day that a defendant does not feel he has defenses adequate to support a plea of innocence and the next day that he does have such defenses. Nevertheless, because of the critical constitutional importance of the defendant’s right to assert his innocence, even when Rule 11 procedures have been fully complied with, the standard for allowing the withdrawal of a guilt plea remains very lenient.31

More important, however, in the circumstances of this case, is the fact that the appellants’ dissemblance with Judge Sirica was completely in keeping with their perceived duty to keep secret the national security aspects of the Watergate operation. Their purpose was not malicious; they could gain no tactical advantage by it. Viewed from this perspective, the majority’s description of the appellants’ misdeeds takes on an entirely new light:

He [Judge Sirica] asked them if they had ever been employed by the CIA, and they lied that they had not. He asked them if they were pleading guilty for some reason of loyalty, coercion, or inducement, and they lied that they were not. He asked their motives for participating in the break-in, and they retreated into generalities and half-truths.32

Undeniably, this evasive action by the appellants is important, but not, as the majority contends, because it shows bad faith in their dealings with the court. *360Rather, it provides persuasive evidence of their good faith belief that national security considerations necessitated their silence. As Barker’s affidavit explains:

My belief that this was a government operation which was not supposed to be disclosed was reinforced by the questioning by the Court at the time our guilty pleas were entered. In particular, the Court inquired of us whether we had ever worked for the Central Intelligence Agency. For Judge Sirica to ask me to respond in open Court to that question signalled to me that he had not been informed by the government of this fact, was not supposed to know and that I was not supposed to reveal that any more than I was supposed to reveal the nature of the operation itself. I viewed this matter as being the same as regarding Mr. Ellsberg and his case. It was not my position to make any disclosure as to this operation to say nothing of revealing the existence of the Fielding office entry. The government knew about both and the decision as to disclosure was that of the government, not mine.33

Further evidence that the motive of the appellants was not to mislead the court, but simply to reveal nothing which the “government” did not wish disclosed, is provided by their blanket responses to Judge Sirica’s skeptical questioning.34 They were not artful liars. At one point, Judge Sirica went so far as to state that he did not believe Mr. Barker, when the latter disclaimed knowledge of the origin of the group’s expense money.35 Unquestionably, the judge was exasperated; that he was misled is doubtful.

Nor can it be said that the appellants “abused” the judicial process, in the culpable sense of the word. They did not lie to the court for their own ends, or to protect a private individual or group of individuals. If the majority accepts, as it must, appellants’ allegation that they believed they were acting at the direction of the government itself, then it should also accept that the appellants lied only to protect the public. It would appear to run counter to both the letter and the spirit of the “fair and just” standard to use the appellants’ public-spirited, though mistaken, action as a reason for denying them now the opportunity to prove their innocence.

In sum, when balanced against the appellants’ fundamental right to a trial, the two rationales advanced by the majority for denying the appellants’ motion are far from compelling. The Government has been inconvenienced by the delay, but not substantially prejudiced. The District Court has suffered some aggravation over the appellants’ early refusal to reveal all they “knew” about the break-in. Given the appellants’ motive, however, it cannot fairly be said that they “abused” the judicial process. Nevertheless, as will be discussed in the next section, it is upon this weak foundation that the majority bases its primary argument for denying the appellants’ withdrawal motion.

C. The “Reasonableness” of the Appellants’ Reason for Delaying the Assertion of Their Defenses

The gravamen of the majority’s position is contained in the following paragraph:

In a ease such as this, involving possible prejudice to legitimate prosecution interests, a flagrant abuse of judicial processes by the appellants, . we do not think it is a sufficient reason, to merit withdrawal of the guilty pleas, that appellants may in fact have labored under a subjective impression that “national security” considerations *361required their silence at trial. If subjective impressions, however irrational and unfounded, were enough, any defendant could claim them and thus secure tactical advantages by pleading guilty and delaying his withdrawal motion to a point where retrial would be onerous or impossible for the Government. In our view, the proper question in this case is not whether appellants entertained the erroneous belief that silence was their duty, but whether this belief was, in an objective sense, reasonable in the circumstances. . . . That the belief was a mistaken one does not mean that it was necessarily unreasonable. But we have no doubt whatever as to the unreasonableness of appellants’ belief.36

First, it should be noted that the majority does not here set up a standard by which to measure the validity of all presentence withdrawal motions. (It could hardly be otherwise, given the strictness of the standard.) Rather, as the italicized language at the beginning of the paragraph makes clear, the majority finds this test of “objective reasonableness” justified only because of the alleged prejudice to the Government and abuse of the District Court present in this particular case. I have already discussed in detail the weakness of both these rationales for denying appellants’ motion. They are wholly inadequate bases for such a stringent standard. As will be discussed in more detail below, such a standard might be appropriate for judging postsenten.ee withdrawal motions; but it can never be justified in presentence situations.

The majority obfuscates the issue by appearing to argue that the only alternative to a test of objective reasonableness is to allow “subjective impressions, however irrational and unfounded” to dictate withdrawal. Unquestionably, there is a legitimate judicial interest in preventing defendants from whimsically withdrawing their pleas, or submitting a motion purely to gain a tactical advantage over the Government. It would appear, however, that, at least in the vast majority of presentence situations, the necessary control can be provided by a test of subjective, as opposed to objective, reasonableness. Under such a test, a judge does not have to accept a defendant’s explanation for desiring to withdraw his plea unless the defendant can show that the erroneous belief upon which he premised his plea was reasonable for him under the circumstances.

This standard, of subjective reasonableness, does of course require the proof of sufficient facts to convince the trial court that it was reasonable for a man of the defendant’s background and experience to make such a mistake. The court does not have to accept as the basis for a withdrawal motion all “subjective impressions, however irrational and unfounded.” The majority’s fear, therefore, that, without a test of objective reasonableness, defendants could easily gain tactical advantages over the government — by inventing stories to support withdrawal — is unwarranted. Equally important, once having determined that the defendants’ mistake was subjectively reasonable under the circumstances, the trial judge is not bound thereby to grant the defendant’s motion. The court must still balance the extent to which that mistake affected the voluntariness of the defendant’s original plea against the prejudice the Government will suffer if unexpectedly required to try the case, in order to determine if withdrawal is “fair and just.”

The fundamental difference between this approach and that of the majority is that, once having established the bona fide nature of the defendant’s error, the focus is placed on the degree to which that error rendered the defendant’s plea involuntary. The greater the coercive effect of the original circumstances, as legitimately perceived by the defendant, the stronger must be the prejudice to the Government to warrant denial of the defendant’s withdrawal motion. To my mind, this balancing process is the only *362approach which is compatible with the “fair and just” standard.37

The voluntariness of a guilty plea is archtypically a subjective question. If a defendant would not have pled guilty but for his mistake, his action was not voluntary. That a perfectly “reasonable man” would not have made the same error or entered the same plea under the circumstances does not render the defendant’s plea any more voluntary. It would seem to me violative of the basic premises of the “fair and just” standard to hold a possibly innocent man to an involuntary guilty plea because he failed to act as would a detached, “reasonable” citizen in the same situation.

This is not to say that the “reasonable man” standard may never be appropriate in evaluating withdrawal motions. Under Rule 32(d) of the Federal Rules of Criminal Procedure, posfeentence withdrawal motions may be granted only to prevent “manifest injustice.” This stringent rule comports with the strong public policy supporting the “stability” of final judgments38 and discourages motions which. _are effectively attacks on the judge’s sentencing decision.39 United States ex rel. Curtis v. Zelker,40 cited by the majority as its principal support for use of an objective standard to judge withdrawal motions, involved just such a postsentence request. Indeed, the defendant there did not seek to have his judgment vacated until seven years after he had been sentenced to a term of „twenty years to life.41 Equally important, the defendant was convicted in state court, not federal court. His motion, therefore, came in the form of a petition for habeas corpus filed in district court. The court of appeals, reviewing the district court’s decision, was concerned only with determining whether minimal constitutional standards had been met in this situation. It is difficult to conceive of a case where the defendant’s burden of justifying his delay in asserting his innocence could be greater. The radical difference of Curtis from the case at bar is readily apparent.

The other cases cited by the majority, United States ex rel. LaFay v. Fritz42 and Townes v. Peyton,43 also involved habeas petitions in the federal courts *363seeking to vacate state court convictions on constitutional grounds. Moreover, in LaFay the basis for the defendant’s alleged mistake was a promise by his lawyer as to the type of sentence which would be imposed. It is settled constitutional law, however, that a defendant’s plea is not rendered involuntary by his lawyer’s misjudgment of law,44 or misassessment of sentence,45 so long as his counsel is competent. Thus, even an objectively reasonable error by a defendant in this situation is insufficient to justify setting aside a guilty plea.46 In Townes, the defendant’s constitutional claim was based on a generalized fear that the judicial system was biased against him. Again, this claim was not raised until long after sentencing; and the defendant alleged no facts with which to support his belief. The court held that under these circumstances, a federal writ would not issue.

The instant case does not involve a post-sentence claim requiring application of the “manifest injustice” rule. Nor is this court called upon to overturn a state court judgment on constitutional grounds. Rather, we are presented with a presentence motion, entered in a federal court, governed by the “fair and just” standard. Under these circumstances, the stringent test of “objective reasonableness” is wholly inapposite.

Under my position stated above, it remains to show, first, that it was reasonable for the appellants, with their particular experience and background, to believe national security considerations required their silence and, second, that this belief rendered their guilty pleas involuntary. If the appellants’ error was indeed “reasonable,” and basic to their pleas, it requires governmental and judicial interests of truly compelling force to justify denying their withdrawal motion under the “fair and just” standard. I have already made clear my belief that the interests ascribed to the Government and the trial court by the majority opinion fall far short of the level of prejudice necessary to cut off the appellants’ right to a trial.

1. The Context of the Appellants’ Belief

It is impossible fully to appreciate how the appellants could have believed in January 1973 that their silence was required without understanding their background and prior experience in government operations. All were, and are, bitter opponents of the Castro regime in Cuba. They blame the Communists for the loss of their homes and livelihood. They exhibit a single-minded dedication to the cause of eradicating Communism in Cuba and preventing the spread of Communism to this country. They were willing in 1972 to give their full cooperation to any government operation which they believed was directed against traitors to this country or aiders and abettors of the Castro regime. This was their patriotic duty, and they performed it unquestioningly.

All but Gonzalez had taken part in the Bay of Pigs affair. Barker and Martinez were in the employment of the CIA even before that operation, and continued working for the agency thereafter. (Indeed, Martinez was still working for the CIA and receiving a monthly salary up until the night of his arrest in connection with the break-in.) They have known each other for over thirty years. Gonzalez is a long-time friend of Martinez’s and was familiar with the CIA connections of his colleagues. He and Sturgis both had worked clandestinely against the Castro regime since its inception. They form a closeknit group, bound by ties of personal friendship and common interest. Above all, they are loyal — loyal to each other, and to the *364cause of fighting Communism, in this country as well as in their native land.

E. Howard Hunt is a figure of no little renown in Miami’s Cuban-American community. Only Barker knew him personally before 1971, but as “Eduardo” apparently many, including the other appellants, knew of his efforts as a CIA official to help liberate Cuba. Hunt was the supervising agent for the CIA in connection with the Bay of Pigs invasion and Barker’s immediate supervisor. His credentials as a government agent with top-security clearance were impeccable.

Hunt renewed his contact with Barker in April of 1971 and told him he now held a high position in the White House. Barker confirmed that fact in the summer of 1971 in Washington, when he visited Hunt at the Executive Office Building, where his office was located. Barker knew Hunt was supposedly “retired” from the CIA, but in Barker’s mind this fact carried little significance. Thus, in August of 1971, when Hunt solicited Barker’s aid to help him in a matter of “national security,” “involving a traitor to this country who had been giving information to the Russian Embassy,” Barker readily agreed. Before the now-famous Fielding-Ellsberg break-in, Hunt informed Barker that “he was part of a national security intelligence agency that had greater jurisdiction than both the FBI and the CIA.” Hunt discussed the possibility that this intelligence agency might serve as a nucleus for renewed efforts to liberate Cuba.

Barker and Martinez (who was'among those solicited to effect the Ellsberg break-in) were given no details of the operation. This was consistent with their belief that it was a highly sensitive national security operation. As mere operatives, it was unnecessary, indeed foolhardy, for them to know more. Their belief in the authorized nature of the affair was reinforced by Hunt’s confirmation that the equipment, disguises, and fake identification papers used in the operation had been provided by the CIA.

The Watergate operation itself enjoyed similar authorization in the minds of the appellants. They were told only that Hunt had information that Cuban Communist money was going into the Democratic campaign and that they were to photograph documents which would be analyzed to obtain evidence of this fact. Again, fake identification papers were provided by the CIA. The appellants had no reason to doubt Hunt’s authority. Not only was he a well-known CIA official and personal friend of Barker’s, but he had advance knowledge of events to which Barker believed only a high-ranking intelligence officer would have access: viz., the resignation of Mr. Helms as Director of the CIA, and the mining of Haiphong Harbor.

After their arrest, as was noted earlier in this opinion, the appellants received treatment entirely consistent with their belief that they had been engaged in a government intelligence operation. Rather than acknowledge responsibility for the operation, the Executive denied any involvement. Surreptitious assistance was provided the appellants in the form of expenses, attorneys, and financial help for their families.

The government’s apparent desire to keep its role in the break-in secret indicated to the appellants that as little as possible of what they regarded as the true nature of the operation was to be revealed. When Hunt told Barker he had decided to plead guilty and that they did not have any defense, their belief that this was the government’s position was confirmed:

This represented to me a final decision that there would be no disclosure at trial as to the true nature of the operation we had engaged in and that the plan which was to be followed was for us to plead guilty. . . . 47

Given the appellants’ past experience with clandestine operations, and their complete reliance on Hunt’s instructions throughout their relationship with him, that they should have felt compelled to *365stifle their defenses and plead guilty is certainly understandable. They knew they had a good defense. Their lawyer, Rothblatt, believed so strongly that a defense based on a lack of criminal intent would succeed that he refused to plead them guilty. Yet Hunt had told them they had no defense. In their minds, the signal was clear: the government wanted the national security aspects of the operation, and the activities of the top-secret intelligence agency of which Hunt was an official, kept under wraps. If their leader was prepared to go to jail to .protect that information, certainly they were loyal and dedicated enough to follow his lead.

The majority argues that the defendants belief was “patently unreasonable” in several respects. I have observed already that it is improper in this case to judge the appellants’ belief by a test of “objective reasonableness.” To the extent that “patently unreasonable” means unreasonable from the standpoint of a detached “reasonable man,” the majority’s argument has been answered. To the extent, however, that it means wholly irrational, or subjectively unreasonable, a response is necessary.

The majority points first to the fact that the guilty pleas were entered only after the prosecution had outlined a strong case against Hunt and Liddy — to the effect that they had planned the break-in for purely partisan purposes — in its opening argument. “After hearing all this, it was patently unreasonable for appellants to continue believing that they had been part of a legitimate national security enterprise requiring their silence at trial.”48 As far as the appellants were concerned, however, the prosecution had simply outlined the facts as they would have appeared to anyone who did not know the “true” reasons for the break-in. If the case against them, based on a theory of pure political intrigue appeared “virtually watertight,” it was just as well — because no one would suspect that their mission in fact related to highly sensitive national security information. The appellants had no way of knowing at this time (two months after the 1972 election) that the Executive’s desire was not to protect the integrity of sensitive foreign intelligence information, but rather to cover up the involvement in the affair of high White House officials. This situation became clear, as was discussed earlier, only after the Senate Hearings had exposed the truly “unbelievable” genesis of the Watergate affair.

Second, the majority asserts that it was unreasonable for the appellants not to seek out “responsible Government officials” “in the CIA, or the State Department, or the Defense Department, or the White House” to ascertain whether, in fact, the “national security” was at stake.49 This suggestion displays a grave misunderstanding on the part of the majority of the defendant’s situation. Hunt had told them he worked for an agency with “greater jurisdiction than both the FBI and the CIA.” Obviously, a limited number of officials would be privy even to. the existence of such an agency, let alone its clandestine operations. Through long experience with the CIA, Barker and Martinez knew that even within an intelligence agency the number of individuals who were informed of an operation often was strictly, and understandably, limited. If they directed an inquiry to the wrong person, they might breach the security, and thereby destroy the efficacy, of related operations. As Martinez explained with regard to the Ellsberg break-in:_

[D]ue to compartmentalization which exists in intelligence units and in particular, in the CIA, I was not sure whether my CIA supervising agent was supposed to know about my participation in these national security intelligence operations. . . As a result, I broached the name of Mr. Hunt with my supervising agent sometime around the time of the Fielding office entry. The subsequent response *366I received from my supervising agent indicated to me that he had not been informed by his superiors and accordingly, that I was not supposed to disclose any information about these operations to him.50

Barker and Martinez were trained agents. Sturgis and Gonzalez had long worked in clandestine intelligence operations. They knew the value of secrecy and the danger of leaks. They were accustomed to depend entirely on the representations and authority of those delegated to lead them. They were disciplined. It misconstrues their background and character entirely to argue that they not only should have questioned Hunt’s decision, but also carried any doubt they had to a variety of federal agencies for discussion.

The same misconception lies at the heart of the majority’s third, and most important, contention — viz., that the appellants should have informed Judge Sirica of their “national security” concerns. According to the majority:

It would be utterly destructive of the judicial system if a defendant were to be permitted, without any predicate in reasonableness, to minimize the significance of a misrepresentation to the court by an assertion of his belief in some value perceived as higher than the court’s. . . . [Ajppellants themselves met in camera with the judge during the plea-taking procedure and had ample opportunity to seek out his advice.51

First, it bears repeating that, in the only sense which I consider compatible with the “fair and just” standard, the defendant’s belief had ample “predicate in reasonableness.” Second, I find a disturbing self-righteousness in the majority’s implication that no citizen ought to contemplate values higher than those of a federal court. Certainly the Supreme Court does not feel it would be “utterly destructive of the judicial system” not to entrust federal judges with secret “national security” material. In EPA v. Mink52 the Court interpreted the Freedom of Information Act53 not to allow judicial review of government security classifications, or even the in camera inspection of classified documents in order to separate secret and nonsecret matter.54 Congress has since revised the statute to give federal judges this power; 55 but the point is that it is certainly not surprising that a defendant could believe a judge was not among those with authority to know the most closely guarded security information.

Particularly in this case, where Judge Sirica’s questioning revealed to the appellants that the government had not even informed him Barker and Martinez worked for the CIA — let alone that they had taken part in the Ellsberg break-in — it was perfectly understandable that the appellants would not have entrusted him with their knowledge. It appeared to them the government did not think it desirable that the judge should know even rudimentary facts about their intelligence operations. Moreover, Judge Sirica, during voir dire, made quite clear his desire to bring to light all the facts surrounding the break-in.56 This was precisely what the appellants considered was their duty to prevent.

*367In sum, in light of their background in intelligence work and their relationship with Hunt, the appellants’ belief that the government did not want the “national security” aspects of the Watergate operation disclosed was reasonable, and their failure to make their belief known to Judge Sirica or other “responsible officials” was justified under the circumstances as they then believed them to be.

2. The Voluntariness of the Appellants’ Plea

The question of the degree to which the appellants’ belief affected the voluntariness of their plea is readily answered. Their belief effectively dictated their plea. Not only did the government’s apparent desire deprive them' of their only valid defense, but Hunt had made clear that a guilty plea was mandated under the circumstances. The appellants obviously did not want to go to prison, but they felt they had no choice. Theirs was the paradigm of an involuntary plea. That it was entered with the advice of competent counsel, and after extensive questioning by Judge Sirica, does not change its involuntary nature.57 The appellants did not make a reasoned decision based on the chances of success at trial of their “national security” defense. They simply accepted that a guilty plea was required of them because the assertion of that defense was incompatible with the necessity for silence. It was not until eight months later, when the actual genesis of the Watergate operation had been revealed in full, that the appellants could make a reasoned decision. Then they moved the District Court to allow them a trial.

Given the involuntary nature of the appellants’ guilty plea, and the relative weakness of the governmental and judicial interests opposing its withdrawal, I would hold that the District Court abused its discretion under the “fair and just” standard when it denied the appellants’ motion.

II. THE LEGAL MERIT OF APPELLANTS’ PROFFERED DEFENSE

The majority held that the appellants’ defenses were waived regardless of their merit.58 As I dissent from this view, and *368as the assertion of a valid defense is critical to the leniency of the standard applied to a presentence withdrawal motion, it is necessary for me to address the question of the legal merit of the appellants’ assertion of innocence. I conclude that the appellants’ principal defense, based upon their mistake as to the authorized nature of the break-in, constitutes a legally valid defense to the charges against them.59 Their withdrawal motion should have been judged accordingly.

It is a commonplace of criminal law that an honest “mistake of fact” negates, criminal intent, when the defendant’s acts would not constitute a crime if the facts were as he supposed them to be.60 Conversely, a “mistake of law” is generally held not to excuse the commission of an offense, even though the defendant was unaware his action was prohibited.61 The frequent difficulty of distinguishing “law” from “fact,” as well as the reluctance of modern courts to hold individuals criminally liable when they acted with honest and innocent purpose, however, has led to some erosion of the principle that “everybody is presumed to know the law” 62 When presented with a mistake on the borderline between law and fact, or a case in which the imposition of strict liability would be particularly unjust, the courts have tended either to characterize the defendant’s error as factual in nature or to find a way to declare an exception to the “mistake of law” doctrine.

Chief Judge Bazelon, although concurring in the majority opinion, has taken the position that the appellants’ belief in the official authorization of their venture constitutes a valid defense to the charges against them. He makes the argument, based on general precepts of criminal mens rea, that recognition of an exception to the “mistake of law” doctrine in this case would not depart significantly from the principle of conventional morality which allows a defense for mistake of fact. Judge MacKinnon, dissenting from the majority opinion, takes a somewhat different approach. He argues that the appellants’ error in relying on Hunt’s representations should simply be characterized at the outset as one of fact — i. e., “a mistake as to the fact that all necessary authorization for their activities had been obtained.”

I agree with both my colleagues that generally a citizen should have a legal defense to a criminal charge arising out of an unlawful arrest or search which he has aided in the reasonable belief that the individual who solicited his help was a duly authorized officer of the law. I am troubled, however, by the breadth of the language in Chief Judge Bazelon’s opinion. That the distinction between “law” and “fact” is often more “nice than obvious” does not mean it is nonexistent.

Judge MacKinnon’s approach, although appealing under the unique facts of this case, I suggest also plays too loose with the law-fact distinction. An error as to the legality of a particular activity, even if based upon the assurances of a government official, has always been treated as a mistake of law in Anglo-Saxon jurisdictions. Although a great many commentators, and a growing number of courts, have argued that an exception to the mistake of law doctrine *369should be recognized in the case of reliance on the authority of a government official, none has suggested that it qualifies for treatment under the rubric of mistake of fact. As will be discussed more fully below, traditionally a defendant has been allowed a mistake of fact defense only when he was in possession of facts, albeit erroneous, about his activity which, if true, would have rendered it legal. If he is not in the possession of such facts, but relies instead entirely on the erroneous assertions of a government official or private individual as to the legality of the activity, his mistake is one of law.

The case of People v. Weiss,63 discussed at some length in the opinions of my colleagues, provides a good vehicle for examining the analytical approach I think should be applied to the case at bar. The defendants in Weiss were convicted of kidnapping, for assisting one whom they believed a detective to arrest and confine an innocent individual they were told was a murderer. They appealed the trial court’s refusal to allow the proffer of a defense based on the defendants’ good faith belief that their actions. were legally authorized — i. e., a “mistake of law” defense (which of course would be proved by facts). The New York Court of Appeals observed first that under that state’s law one element of the crime of kidnapping was that the defendant have “acted without authority of law.” 64 The court then reasoned:

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, [cite], and they were entitled to testify in respect to their intent based upon their belief, [cites].
No matter how doubtful the credibility of these defendants may be or how suspicious the circumstances may appear, we cannot say as a 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.65

Preliminarily, it should be made clear that Weiss is legally distinguishable from the case sub judice on statutory grounds. As interpreted by the court of appeals, a defendant could be convicted of kidnapping under the New York statute only if he seized a person with the knowledge that his action was illegal. By thus defining the crime, the court established that any condition which negatived that required state of mind should result in an acquittal. A mistake of law which had this effect, then, could give a valid defense.66 None of the crimes which remain charged to the appellants in the instant case, however, has as an element the specific criminal intent to act in a manner known to be illegal.67 To be sure, conspiracy and burglary are crimes of “specific intent,” in that each requires a particular intention in addition to the intentional doing of the actus reus itself,68 but this kind of mental state should not be confused with the *370requirement of an intent to violate the law. In the case of conspiracy, generally, “an agreement to do an act that, unknown to the parties, is a crime, is criminal.”69 Mistake of law is no excuse.70 Similarly, burglary requires only an entry into an area “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.” 71 There is no requirement that the actor realize the illegality of his intended action, so long as it actually is unlawful. A mistake on that score, therefore, is not normally recognized as a defense.

As Chief Judge Bazelon correctly observes, however, the technical distinguishability of the decisive issue in Weiss from that presented in the instant case does not destroy the utility of Weiss as a measure of this case. Assuming arguendo that the New York court had not had before it a statute which in terms made a mistake of law defense available, the question becomes whether a cogent decision allowing a defense based on mistake could have been rendered nonetheless. In effect, the defendants in Weiss made two mistakes. The first was in believing that the individual who solicited their assistance was a detective. This can safely be characterized as a mistake of fact. Their second error was in believing that the bogus detective had the authority to arrest the individual pointed out to them. This mistake, depending on the circumstances, could have been one either of fact or of law.

*371A detective, or any other officer of the law, has legal authority to make an arrest only if it meets the “reasonableness” standard of the Fourth Amendment. This requires at least probable cause and, depending on the situation, a judicial warrant. To base a successful defense on mistake of fact, the defendants in Weiss would have had to show that the seizure and confinement of the individual involved would have been legal under the facts as they believed them to be. As far as the opinion of the New York Court of Appeals reveals, however, the defendants believed nothing about the individual whom they helped apprehend other than that he was a murderer. This unsupported conclusion was clearly inadequate to support a finding of probable cause. Nor did the defendants labor under the mistaken impression that the detective had a valid warrant for the arrest of the “murderer.” 72 They were the victims not of mistake of fact therefore, but of ignorance of fact. Such ignorance has never been a defense.73

Similarly, the appellants in the instant case were ignorant of sufficient facts about the Watergate operation to argue that the break-in would have been legal if the facts had been as they believed them to be. They relied not on what they knew about the operation, but on what they knew about Hunt. It was upon his position and authority that their belief in the legality of their action was based. Assured of Hunt’s integrity and high rank in the government, the appellants accepted his judgment as their own. In truth, however, as a legal matter Hunt had neither probable cause nor a warrant (if such was legally required) for a search. His judgment (or what the appellants believed to be his judgment) as to the lawfulness of the break-in was erroneous. His mistake (or disregard) of law became their mistake of law.

The question remains whether, assuming the defendants in Weiss were misled by a mistake of law, they could have based a valid defense thereon (independent of the element of knowledge contained in the statute). I believe that they might have.74 All of the arguments for allowing a defense of mistake of law to the citizen who acts in reliance on the authority of a public official apply most strongly to a case where the official is a police officer or agent who has enlisted *372the aid of a citizen to help him in the performance of his appointed task.75 We should be most reluctant criminally to punish the public-spirited individual who freely performs his civic duty — especially in a day when noninvolvement appears the watchword of citizens at the scene of a crime. This does not mean that protection need be afforded every person who asserts a belief, however irrational, that he acted at the behest of an officer of the law. A balance may be struck here by requiring that the citizen’s mistake as to the officer’s authority be reasonable.76 All the circumstances surrounding the incident in question would enter into such a determination, including the kind of operation the citizen was asked to take part in and, in cases where the “officer” was not such in reality, the objective manifestations of his office. It is not clear from the description of the New York Court of Appeals whether the defendants in Weiss could have met such a test.

It is this question which I consider decisive on the issue of the validity of the defense asserted by the appellants in the instant case. If they honestly and reasonably believed the operation was lawful, their mistake of law should give them a valid defense in this context. We need not determine here whether in fact the appellants’ mistake was reasonable, but only whether, as a matter of law, a jury could find that it was reasonable.

There is a wealth of evidence in this case that the appellants honestly and reasonably believed they were engaged in a top-secret national security operation lawfully authorized by a government intelligence agency. According to their affidavits, Hunt was widely known in Miami’s Cuban-American community as a CIA agent; indeed he was Barker’s “supervisor” for the Bay of Pigs invasion. Martinez had long been on CIA retainer, and Sturgis has taken part in the Bay of Pigs affair and other “clandestine operations” against the Castro regime. Gonzalez was fully apprised of his colleagues’ CIA connections. Further, Hunt had an office at the White *373House. He engaged Barker (along with Martinez and Liddy) for the Ellsberg break-in, which apparently had official authorization, in order to gather information on “a traitor to this country who had been giving information to the Russian Embassy.” They used CIA tools and equipment for the operation. Subsequently Hunt arranged to have the appellants stand guard at the casket of former FBI Director J. Edgar Hoover. As to the Watergate break-in, they were told that its purpose was to seek “financial information . . . indicating Cuban communist money was going to the Democratic campaign?’ Hunt said he had information to that effect. If true, this was clearly an important national security matter. The appellants had no reason to doubt Hunt’s authority, or the reliability of his information. They had had only his representation for the Ellsberg break-in, and probably little more for the Bay of Pigs invasion. He was employed by the Executive, had inside information concerning government affairs, and had supervised authorized clandestine operations in the past. Certainly a juror could find that the appellants’ mistake of law was reasonable under these circumstances.

It may be objected that no reasonable man could believe a search of an office was valid without prior judicial warrant. To this there are two responses. The first is that the appellants did not know whether Hunt had a warrant. They assumed, like the defendants in Weiss, that he had whatever authorization was required. In view of Hunt’s impeccable credentials as a government agent, their assumption was certainly justified under the circumstances.

The second response is that, as a matter of law, it is presently a subject of no little controversy whether indeed a warrant is required for a foreign intelligence search of the type the appellants believed they were conducting.77 The “national security” exemption to the warrant requirement, long espoused by the Executive branch as a necessary concomitant to the President’s constitutional power over the exercise of our country’s foreign affairs,78 has recently been affirmed by both the Fifth and Third Circuits.79 They determined that the Fourth Amendment requirement of prior judicial approval does not apply to surveillances authorized by the Executive for the purpose of gathering foreign intelligence information. No court, in a case directly on point, has denied the President this prerogative. The Supreme Court, in several recent decisions requiring officials to obtain a warrant before engaging in electronic surveillance, has been careful to note that its rulings did not reach national security cases involving foreign powers or their agents.80

I express no opinion here on the merits of this question. But in view of the fact that the weight of authority favors an exemption to the warrant requirement for the kind of intelligence gathering in which the appellants believed they were engaged, it was certainly understandable that they did not insist upon a *374warrant. If it be objected that the Supreme Court’s decision in United States v. United States District Court,81 holding that a prior warrant was required for a domestic security surveillance, should have put the appellants on guard that a warrant might be legally required for the Watergate operation, it suffices to observe that that opinion was rendered two days after the break-in. Moreover, it represented a sharp reversal of almost three decades of Executive assumption of special authority in the field of domestic, as well as national, security.82 Clearly, a reasonable layman working for the government would have been justified in relying upon Executive pronouncements in this area. And it is as laymen, not as lawyers — as “foot soldiers,” not as generals — that the appellants’ knowledge and responsibility are to be judged.

Thus, I conclude that the appellants have presented a valid defense to the charges against them. As the Government presented no compelling reason why the appellants’ presentence withdrawal motion should be denied, I would find that the District Court abused its discretion under the “fair and just” standard. I would direct the District Court to grant the motion and proceed with trial on the merits.

Even if it be accepted that the action of the majority here in affirming the District Court’s decision is correct on the law, this does not mean that the appellants’ motion to withdraw their guilty pleas should not be reconsidered by the District Court. Not only the appellants but also the Special Prosecutor’s Office have acquired new and critical evidence about the Watergate operation since the appellants entered their guilty pleas in January 1973. Not all of that information was made available in the months between January and September 1973; much evidence came out thereafter. For the reasons of “fairness and justice” set forth in this dissent, I suggest that the Special Prosecutor ought to reconsider his opposition to the appellants’ efforts to obtain a trial in which they would have for the first time an opportunity to present their defenses. In the broad interest of fairness and justice I believe he should either act on his own or support a renewed motion by the appellants before the District Court for withdrawal of their pleas.

. In addition to their principal defense of lack of mens rea, the appellants also asserted defenses based on entrapment and selective prosecution.

. In the absence of an evidentiary hearing, or fact-finding by the District Court, this court must take as true the facts stated in the appellants’ affidavits.

. Everett v. United States, 119 U.S.App.D.C. 60, 336 F.2d 979 (1964).

. See, e. g., Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); United States v. Young, 424 F.2d 1276 (3rd Cir. 1970); Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499 (1959).

. See United States v. Joslin, 140 U.S.App.D.C. 252, 434 F.2d 526 (1970); High v. United States, 110 U.S.App.D.C. 25, 288 F.2d 427, cert. denied, 366 U.S. 923, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961); Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499 (1959).

. Majority Opinion, 168 U.S.App.D.C. at 324, 514 F.2d at 220, citing United States v. Joslin, 140 U.S.App.D.C. 252, 434 F.2d 526 (1970); United States v. Young, 424 F.2d 1276 (3rd Cir. 1970); Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963); Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499 (1959); Poole v. United States, 102 U.S.App.D.C. 71, 250 F.2d 396 (1957).

. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

. Majority Opinion, 168 U.S.App.D.C. at 325, 514 F.2d at 221.

.The question whether the appellants’ pleas proceduraily were properly entered is not a factor in this case. Judge Sirica’s lengthy inquiry into the validity of those pleas complied fully with the requirements of Rule 11. (If a plea has been entered contrary to Rule 11 procedures, as a rule it must be permitted to be withdrawn both before and after sentencing, regardless whether the defendant asserts a legally cognizable defense. See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed. 418 (1969).)

As the majority recognizes, however, even where a plea is properly entered, the standard for judging the acceptability of a withdrawal motion is very lenient, so long as the Government’s interests have not been substantially prejudiced. (Majority Opinion, 168 U.S.App.D.C. at 326, 514 F.2d at 222, citing United States v. Joslin, 140 U.S.App.D.C. 252, 434 F.2d 526 (1970) and Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963).) Thus, the proper focus of inquiry in this case is on that prejudice, rather than on the thoroughness of the plea-taking procedure.

. The majority appears at some points in its opinion to argue that, the eight-month delay between plea and withdrawal motion in itself constitutes a factor which weighs against acceptance of the motions. The primary significance of the length of the delay, however, lies in whatever prejudice it has placed on the Government’s ability to prosecute the case. In terms of balancing the interests of the appellants in withdrawing their pleas against those of the Government in blocking such withdrawal, therefore, the length of the delay cannot be considered an independent factor. Its “weight” is accorded ample recognition as the principal component of the element of prejudice to the Government.

. The majority argue in a footnote that the reasons for the appellants’ eight-month delay in asserting their innocence are “of no concern at all” in this case, because the appellants’ justification for having entered guilty pleas in the first place is inadequate. Majority Opinion, 168 U.S.App.D.C. at 329-330, n. 16, 514 F.2d at 225-226 n. 16. “That appel*355lants’ original unreasonable beliefs may have become progressively more unreasonable is of no import.” Ibid. The fallacy in this position lies in the fact that the majority assert the length of the delay between guilty plea and withdrawal motion — and concomitant prejudice to the Government’s interest — as their primary rationale for applying a stringent test of “objective reasonableness” to the appellant’s original beliefs. See Majority Opinion 168 U.S.App.D.C. at 327-328, 514 F.2d at 223-224 and text 168 U.S.App.D.C. at 323-326, 514 F.2d at 219-222 infra. The majority make quite clear that if the appellants had requested withdrawal within a short period of time after entering their pleas, the standard for judging their reasons would have been quite low. Majority Opinion at 326, 514 F.2d at 222. It is patently inconsistent with this position to use a longer time period as the basis for a much tougher standard of review without considering factors which mitigate the delay, or excuse it altogether.

. See note 2 supra.

. Affidavit of Bernard L. Barker, App. at 16.

. Id. at 17.

. See Majority Opinion 168 U.S.App.D.C. at 323-324, 514 F.2d at 219-220.

. Tr. of Sentencing 3-5.

. See Sussman, The Great Cover-Up: Nixon and the Scandal of Watergate 176-79 (1974).

. Affidavit of Bernard L. Barker, App. at 17.

. Id. at 14-16.

. Id. at 16.

. Id. at 13.

. Sussman, supra note 17, at 227.

. In August, 1971 Mr. Hunt came to Miami, Florida, met with me and asked me if I would be willing to help him on a matter of national security. He did not at that time tell me any details with respect to the operation itself but he did explain to me that it involved a traitor to this country who had been giving information to the Russian Embassy.

This operation and the subsequent operations were handled in a manner that was consistent in my mind with covert intelligence operations. I was not given any details of the operations, what the targets were or what our assignment was until shortly before the operations themselves. For example, I did not know that the office we were to enter was that of Dr. Fielding until after we had arrived in California and I believe it was also at that time that I was first informed by Mr. Hunt that the traitor he had referred to was Daniel Ellsberg.

Affidavit of Bernard L. Barker, App. at 13-14.

.[The theft of “The Pentagon Papers”] posed a threat so grave as to require extraordinary actions.

Therefore during the week following the Pentagon Papers publication, I approved the creation of a Special Investigations Unit within the White House — which later came to be known as the “plumbers”. This was a small group at the White House whose principal purpose was to stop security leaks and to investigate other sensitive security matters. I looked to John Ehrlichman for the supervision of this group.

Egil Krogh, Mr. Ehrlichman’s assistant, was put in charge. David Young was added to this unit, as were E. Howard Hunt and G. *357Gordon Liddy. The unit operated under extremely tight security rules. Its existence and functions were known only to a very few persons at the White House. These included Messrs. Haldeman, Ehrlichman and Dean.

At about the time the unit was created, Daniel Ellsberg was identified as the person who had given the Pentagon Papers to The New York Times. I told Mr. Krogh that as a matter of first priority, the unit should find out all it could about Mr. Ellsberg’s associates and his motives. Because of the extreme gravity of the situation, and not then knowing what additional national secrets Mr. Ellsberg might disclose, I did impress upon Mr. Krogh the vital importance to the national security of his assignment. I did not authorize and had no knowledge of any illegal means to be used to achieve this goal.

However, because of the emphasis I put on the crucial importance of protecting the national security, I can understand how highly motivated individuals could have felt justified in engaging in specific activities that I would have disapproved had they been brought to my attention.

Consequently, as President, I must and do assume responsibility for such actions despite the fact that I at no time approved or had knowledge of them.

The work of the unit tapered off around the end of 1971. The nature of its work was such that it involved matters that, from a national security standpoint, were highly sensitive then and remain so today.

These intelligence activities had no connection with the break-in of the Democratic headquarters, or the aftermath.

9 Weekly Compilation of Presidential Documents, No. 21, at pp. 695-96 (May 22, 1973) (emphasis added).

. 1 Report of the Senate Select Committee on Presidential Campaign Practices, ch. 1, § 1(c).

. Ibid.

. When Hunt finally appeared before the Senate Committee, on 24 September 1973, he testified as follows with respect to the motivation of the appellants in the Ellsberg and Watergate operations:

Senator WEICKER. With respect to the three Cuban-Americans who participated in the Fielding-Ellsberg break-in, those three, in your opinion, did those men act reasonably *358in' believing that the break-in was legal, based upon your apparent authority to direct them in such an operation?
Mr. HUNT. Yes, sir.
Senator WEICKER. With respect to the four Cuban-Americans who participated in the two Watergate Democratic National Committee break-ins, in your opinion, did these men act reasonably in believing that those break-ins were legal, based upon your apparent authority to direct them in such an operation?
Mr. HUNT. Yes, sir.
Senator WEICKER. Are you now willing to accept responsibility for the activity of those Cuban-Americans in those break-ins, based upon the authority you represented yourself to have to direct such operations?
Mr. HUNT. Yes, sir.
Senator WEICKER. And isn’t it fair to say, Mr. Hunt, based upon such things as your past knowledge of the President’s speech of May 8, 1972, on the Haiphong mining, your White House office, your accessibility to high levels of Government, your visit to the Executive Office Building and its agencies, that the Cuban-Americans acted reasonably in believing that those break-ins were legal and that you had the authority to direct them?
Mr. HUNT. Yes, sir.
Senator WEICKER. Well, I thank you very much, because at least we have started, I think, from the bottom up, if nowhere else, to ascertain some of the beliefs which motivated the matters that have come before this committee. I thank you for your candor.

9 Hearings Before the Select Committee on Presidential Campaign Activities of the United States Senate, 93rd Cong., 1st Sess., at 3787-88 (1973).

. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1170, 31 L.Ed.2d 231 (1972).

. Id. at 460, 92 S.Ct. 1170.

. Majority Opinion 168 U.S.App.D.C. at 327, 514 F.2d at 223.

. See note 9 supra.

. Majority Opinion 168 U.S.App.D.C. at 327, 514 F.2d at 223.

. Barker Affidavit, App. at 18.

. See the representative excerpt in the Majority Opinion 168 U.S.App.D.C. at 319, 514 F.2d at 215.

Similarly, the appellants’ adamant refusal to allow attorney Rosenblatt to present a “lack of criminal intent” defense (based on their mistake in thinking the break-in was authorized) reveals not their bad faith in raising that defense now, but the strength of their original belief that national security considerations required their silence.

.Tr. at 417.

. Majority Opinion 168 U.S.App.D.C. at 328, 514 F.2d at 224.

.The majority attempt to nullify the distinction between this approach and their own by arguing that we have simply assessed the relevant factors in opposite order. Majority Opinion 168 U.S.App.D.C. at 328-329, 514 F.2d at 224-225, n. 15. This argument misapprehends the basic difference in our positions. If I understand their approach, the majority would erect two sliding scales — one measuring the strength of the prejudice to the Government if a withdrawal motion is granted, and the other gauging the strength of the defendants’ reasons for delaying the assertion of his innocence. When the prejudice to the Government reaches a certain level on the first scale, withdrawal will only be allowed the defendant if his reasons attain a position of “objective reasonableness” on the second scale. No matter how greatly the defendant’s erroneous belief may have affected the voluntariness of his plea, or how reasonable his mistake was for him, he will not be allowed to present his defense.

This is not my approach, regardless of the attempted order of analysis. The majority’s statement that I would look first to the reasonableness of the defendant’s belief is correct. That inquiry, however, is limited to a determination of the honesty, or subjective validity, of the defendant’s error. (If his mistake has no credible basis, little prejudice to the Government need be found to justify denial of a withdrawal motion.) If it appears that the defendant reasonably believed, in the light of his experience and background, the facts which hy asserts to support his motion, his reliance thereon is established as foundational to the balancing process which follows. Whether a detached reasonable man would have believed those facts is not germane. Rather, the balance is between the prejudice to the Government and the degree to which the defendant's mistake affected the voluntariness of his plea. This, in my estimation, is the proper measure of the “fairness and justice” of allowing the defendant to withdraw a mistaken guilty plea.

. High v. United States, 110 U.S.App.D.C. 25, 27, 288 F.2d 427, 429, cert. denied, 366 U.S. 923, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961).

. Kadwell v. United States, 315 F.2d 667, 670 (9th Cir. 1963).

. 466 F.2d 1092 (2d Cir. 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1045, 35 L.Ed.2d 612 (1973).

. Id. at 1097.

. 455 F.2d 297 (2d Cir.), cert. denied, 407 U.S. 923, 92 S.Ct. 2471, 32 L.Ed.2d 809 (1972).

. 404 F.2d 456 (4th Cir. 1968), cert. denied, 395 U.S. 924, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1969).

. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

. United States ex rel. Bullock v. Warden, Westfield State Farm, 408 F.2d 1326 (2d Cir. 1969), cert. denied, 396 U.S. 1043, 90 S.Ct. 688, 24 L.Ed.2d 686 (1970).

. 455 F.2d at 303 (Feinberg, J., concurring).

. Affidavit of Bernard L. Barker, App. at 18.

. Majority Opinion, 168 U.S.App.D.C. at 329, 514 F.2d at 225.

. Id. 168 U.S.App.D.C. at 329, 514 F.2d at 225.

. Martinez Affidavit, App. at 22. As a practical matter, it is difficult to conceive exactly how these four Cuban-Americans would go about contacting “responsible Government officials” of the CIA, State or Defense Departments, or the White House. Past which gate would they have been allowed to go?

. Majority Opinion 168 U.S.App.D.C. at 329, 514 F.2d at 225.

. 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

. 5 U.S.C. § 552 (1970). Section 552(b)(1) exempted from the forced disclosure requirement of the Act those matters “specifically required by Executive Order to be kept secret in the interest of national defense or foreign policy.”

. 410 U.S. at 81-84, 93 S.Ct. 827.

. P.L. No. 93-502, 88 Stat. 1561 (1974).

. During voir dire, Judge Sirica explained:

I want you to be straightforward with these questions. I want you to come forward in a truthful manner, ... it doesn’t make any difference to this Court who you might mention or what it hurts or helps. .

Tr. at 386.

. Judge Bazelon’s concurrence in the majority opinion places great weight on this factor: The District Court and the defendants’ attorney both very carefully sought to disabuse the defendants of any notion that they were required to plead guilty and also sought to uncover their motive in pleading guilty. These efforts were unsuccessful. In light of the diligent efforts of their attorney and the careful interrogation by the District Judge, one must conclude that the defendants’ pleas were voluntary. They made a bargain with the government and were under no apprehensions as to what that bargain meant. Under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), we must enforce that bargain.

Concurrence of Judge Bazelon, 168 U.S.App.D.C. at 331 n. 1, 514 F.2d at 227 n. 1 (emphasis added).

In the Alford case, the Supreme Court held it is not constitutional error for a trial judge to accept a guilty plea from a defendant who disclaims his guilt, so long as “the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” 400 U.S. at 31, 91 S.Ct. at 164 (emphasis added). Without this freedom of choice, there can be no “bargain.” Judge Bazelon appears to argue that because the appellants were advised they could plead innocent and instead “chose” to plead guilty, their plea was perforce voluntary. The appellants, however, believed they had a directive from their immediate superior to plead guilty. Only in the most mechanical sense can it be said that “footsoldiers” who obey the order of a superi- or officer have made a voluntary choice to do so. Concomitantly, if the appellants were counseled to take a course of action which, in their minds, would have required disobedience to their leader and disloyalty to their country, that alternative was never truly “open” to them. The Alford case, then, affords little support to Judge Bazelon’s position. In every sense which has meaning in the context of withdrawal motions, the appellants’ pleas did not represent a voluntary choice to waive assertion of their innocence.

. Although eschewing a decision on the merits of the appellants’ proffered defenses, the majority in a footnote makes the gratuitous observation that “the national security defense that appellants would assert if they were granted a trial has been rejected as a matter of law by the only court that has considered it. United States v. Ehrlichman, D.D.C., 376 F.Supp. 29 (1974).” Majority Opinion, - U.S.App.D.C. at 330-331, 514 F.2d at 226-227 n. 17.

*368As Part II of my opinion makes clear, however, the gravamen of the appellants’ principal defense is not — as was the case in Ehrlichman —that warrantless searches are legal if conducted for national security purposes. Rather, the appellants contend that a citizen has a valid defense to criminal charges arising out of an unlawful search which he has aided in justifiable reliance on the authority and representations of a high government official. Therefore, even assuming, arguendo, that the Ehrlichman decision was correct, it is not controlling here.

. Thus, I need not, and do not, reach their subsidiary defenses, based on entrapment and selective prosecution.

. 1 Wharton’s Criminal Law and Procedure § 157 (Cumm. Supp. 1974); Williams, Criminal Law: The General Part § 53-74 (2d ed. 1961); Model Penal Code § 2.04(1) (P.O.D. 1962).

. Wharton’s, supra note 60, at § 162; Williams, supra note 60, at c. 8; Hall & Seligman, Mistake of Law and Mens Rea, 8 U.Chi.L.Rev. 641, 642 (1962).

. See generally Williams, supra note 60, at 293-345.

. 276 N.Y. 384, 12 N.E.2d 514 (1938).

. Id., at 387, 12 N.E.2d at 514.

. Id., at 389-90, 12 N.E.2d at 515-16.

. See Hall & Seligman, supra note 61 at 1.

. The pleas of guilty which the majority opinion allows to stand (Majority Opinion, 168 U.S.App.D.C. at 315 n. 1, 514 F.2d at 211 n. 1) are to the following counts:

Count One: Conspiracy to commit the crimes charged in the other counts. See 18 U.S.C. § 371.
Count Two: Burglary, consisting of entry into the Democratic National Committee headquarters, with intent to steal the property of another. See 22 D.C.Code § 1801(b).
Count Six: Unlawful possession of devices for intercepting oral communications. See 23 D.C.Code § 543(a)(1).

See note 70 infra.

.See Perkins on Criminal Law 629 (2nd ed. 1969).

. Williams, supra note 60, at 678.

. It should be noted, however, that mistake of law has been recognized as a defense to conspiracy when the target offense was not “malum in se.” See Perkins, supra note 68, at 630-31; Landen v. United States, 299 F. 75 (6th Cir. 1924); Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (1946). Burglary is clearly “malum in se.” It is possible, on the other hand, to view the D.C.Code offense of possession of eavesdropping devices as merely “malum prohibitum.” If this view is correct, and the defendants were unaware that possession of eavesdropping devices is a crime, then they cannot be convicted of conspiracy to eavesdrop.

Of greater importance to this case, however, is the fact that, as with the kidnapping statute involved in Weiss (and unlike the statutes here prohibiting burglary and conspiracy), the D.C. statute prohibiting possession of eavesdropping devices may itself recognize a mistake of law defense. The statute is directed only at one who “wilfully possesses" an interception device. “[W]ilfull is a word of many meanings, its construction often being influenced by its context. . . . ” Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). One commentator has made the following generalization:

[W]hen found in a statute creating a civil offense [i. e., malum prohibitum] the word “wilful” means intentional as distinguished from inadvertent or negligent and does not imply anything in the nature of an evil intent or bad motive, whereas such additional element is required when the word is found in a common-law definition or in a statute dealing with a true crime.

Perkins, supra note 68, at 780-81. The question of whether the offense involved here is a

“true crime” (malum in se) or only a “civil offense” (malum prohibitum) is difficult of resolution. “Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set of comprehensive criteria for distinguishing between [the two types of offenses].” Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). The possibility of five years imprisonment for a violation indicates a legislative intent that possession of eavesdropping devices be regarded as a “true crime.” The fact, however, that such possession has not long been prohibited, and may still not be considered illegal in the mind of the public, argues that it should be treated as “malum prohibitim” only.
With no discussion, the only court in this jurisdiction to construe the term “wilfully” in a statute similar to the D.C.Code provision concluded that it required that the defendant “knew his activity to be unlawful.” United States v. Bast, 348 F.Supp. 1202, 1203 (1972). That decision referred to the prohibition, contained in 18 U.S.C. § 2512(l)(c), against placing an advertisement for an interception device in any publication. The United States Code provision closely parallels that of the D.C.Code. Both prohibit wilful advertisement as well as wilful possession of eavesdropping devices. Indeed, in the U.S. statute, the term “wilfully” is used only once, and modifies all activities prohibited by the statute. If “wilful” advertisement of an eavesdropping device means advertisement with knowledge of its unlawfulness, then “wilful” possession would appear to require the same kind of knowledge. The defendants’ mistake in believing their activity was lawful, therefore, would, if honest, constitute a complete defense to that charge.

.22 D.C.Code § 1801(b).

. Even if the defendants had believed that the detective had a valid warrant, their mistake would have been one of law, in the absence of facts known to them which could support a proper judicial determination that an arrest warrant should issue. The situation in which a citizen relies on the authority of a judge, rather than a police officer, presents a stronger case for recognizing a defense based on mistake as to the lawfulness of his action. Reliance on the pronouncement of an attorney general or any other high state official also presents a stronger case. But if the citizen relies entirely on that authority, his mistake remains one of law, not of fact. This does not mean that no defense can be recognized in such a situation. It means only that such a defense must be viewed as an exception to the mistake of law doctrine, rather than an extension of mistake of fact protection.

. To illustrate, if a man is charged with kidnapping under a statute which prohibits enticing a girl under sixteen away from her parents, he should have a good defense, based on mistake of fact, if he honestly believed the girl was over sixteen. See State v. Suenen, 36 Idaho 219, 209 P. 1072 (1922) (dictum). If he did not know whether or not she was under sixteen, his ignorance of fact cannot excuse him. His action was not legal under the facts as he knew them. Any impression that he was acting innocently, therefore, rested on a mistake of law, even if he was assured erroneously by an employee of the government that his action was not prohibited. See Hopkins v. State, 193 Md. 489, 69 A.2d 456. (1950).

.The Model Penal Code allows a “mistake of law” defense to a charge of unlawful use of force for a private person called to the aid of a police officer, if he honestly believes that the officer who calls his aid is acting lawfully. M.P.C. § 3.07(4)(a), Commentary at 64-65 (Tent. Draft No. 8 1958). This rule is explicitly recognized as an exception to the general rule that mistake of law is no defense. M.P.C. § 3.09(l)(b). Significantly, only a mistake of fact is a defense to a criminal prosecution for an unlawful arrest when a private person has come to the aid of another private person. In such a case, the Code requires not only that “(i) he believes the arrest is lawful” but also that “(ii) the arrest would be lawful if the facts were as he believes them to be.” M.P.C. § 3.07(4)(b) (emphasis added).

. In support of the proposition that a mistake of law engendered by reliance on the authority of a public official provides a valid defense in compelling circumstances, see Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), and United States v. Mancuso, 139 F.2d 90 (3rd Cir. 1943). Cf. United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574, 581, 17 L.Ed.2d 526 (1967) (“Ordinarily, citizens may not be punished for actions undertaken in good faith reliance upon authoritative assurance that punishment will not attach. . . . and certainly not if the Government’s conduct constitutes ‘active misleading’ . . ..”).

. This parallels the defense of a good faith, reasonable belief in the lawful nature of their conduct which has been afforded police officers in a civil suit under the Fourth Amendment for an unlawful arrest or search. See Bivens v. Six Unknown Federal Agents, 456 F.2d 1339, 1347 — 49 (1972).

Significantly, if a mistake as to the authority of a government officer could be characterized as one of fact, rather than law, it would afford a defense no matter how unreasonable the defendant’s perception. Although there is some authority to the effect that a mistake of fact must be reasonable to negate intent, (Wharton’s, supra note 60, at 382 n. 19.) the better, and more widely held, view is that even an unreasonable mistake, if honest, constitutes a valid defense. (Williams, supra note 60, at 201; Model Penal Code, Tentative Draft No. 4, at p. 136 (Commentary on § 2.04(1) (1953).) In view of the strong public policy supporting the general principle that citizens disobey the law at their peril, whether they are cognizant of their disobedience or not, it would appear unwise to allow defendants a complete defense based on an irrational reliance on the authority of a government official.

At the same time, there is a presumption of regularity in official action on which, I would argue, the individual citizen should be able to rely, when his reliance is reasonable. As one pair of commentators has put it, arguing in favor of a limited mistake of law defense, “in dealing with a defendant who has followed advice from an officer of the state, one aspect of our general policy is to make the community do this very thing in its dealings with the state, and a rule that no defense will be given under any circumstances to such a defendant will be self-defeating.” (Hall & Seligman, supra note 2, at 676 (emphasis added).) Whether this argument is accepted as applied to all state action, it remains true that a limited defense based on a reasonable mistake as to authority can be justified under the rubric of “mistake of law,” but is an analytic anomaly when placed in the category of “mistake of fact.”

. This court is currently considering this question en banc in the case of Zweibon v. Mitchell, et al., No. 73-1847 (filed 1 August 1973).

. As early as 1940 President Roosevelt asserted the power to authorize warrantless surveillances on “national security” grounds — specifically, against “persons suspected of subversive activities against the Government of the United States, including suspected spies.” Memorandum from President Roosevelt to Attorney General Jackson, May 21, 1940, reproduced in United States v. United States District Court, 444 F.2d 651, 669-70 (6th Cir. 1971), aff’d, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (subsequent authorizations of Presidents Truman and Johnson also reproduced).

. United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974); United States v. Butenko, 494 F.2d 593 (3rd Cir.), cert. denied, Ivanov v. U.S., 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 147 (1974).

. United States v. United States District Court, 407 U.S. 297, 321-22, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Giordano v. United States, 394 U.S. 310, 313-14, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969) (concurring opinion of Stewart, J.); Katz v. United States, 389 U.S. 347, 358 n. 23, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

. 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

. See note 78 supra.