(dissenting):
This opinion considers the appeals of Bernard L. Barker and Eugenio R. Martinez, *958who were convicted of conspiracy in violation of 18 U.S.C. § 241, and sentenced to three years probation. They were charged, along with co-defendants John D. Ehrlich-man and G. Gordon Liddy, with conspiracy to enter without lawful authority the offices of Dr. Lewis J. Fielding on September 3, 1971, in order to search for confidential information concerning his patient, Daniel Ellsberg, thereby injuring Dr. Fielding in his Fourth Amendment right to be secure against unreasonable searches and seizures.
Barker and Martinez present considerations and issues that differ in some respects from those discussed in the opinions issued today in the cases of Ehrlichman and Liddy. I would reach the same result, of affirmance. Whatever equities may pertain to the case of these defendants of Cuban origin, who claim that their actions reflect their patriotism, were taken into account when the trial judge limited their sentence to a modest probation. Their quest for complete exculpation does not entitle them, in my view, to a ruling that the trial judge was mistaken as to the pertinent principles of law.1
My opinion explaining why I dissent from the reversals contemplated by Judges Wilkey and Merhige, is cast in the conventional form of opinions that present first a statement of facts, then an orderly discussion of the legal principles more or less seriatim. This case also calls, I think, for an opening exclamation of puzzlement and wonder. Is this judicial novelty, a bold injection of mistake of law as a valid defense to criminal liability, really being wrought in a case where defendants are charged with combining to violate civil and constitutional rights? Can this extension be justified where there was a deliberate forcible entry, indeed a burglary, into the office of a doctor who was in no way suspected of any illegality or even impropriety, with the force compounded by subterfuge, dark of night, and the derring-do of “salting” the office with nuggets to create suspicion that the deed was done by addicts looking for narcotics?
Judge Wilkey begins to cast his spell by describing Barker and Martinez as “footsoldiers” here in court again. Of course, they are here this time for an offense that took place the year before the notorious 1972 Watergate entry that led them to enter pleas of guilty to burglary. Every violation of civil rights depends not only on those who initiate, often unhappily with an official orientation of sorts, but also on those whose active effort is necessary to bring the project to fruition. To the extent appellants are deemed worthy of sympathy, that has been provided by the probation. To give them not only sympathy but exoneration, and absolution, is to stand the law upside down, in my view, and to sack legal principle instead of relying on the elements of humane administration that are available to buffer any grinding edge of law. That this tolerance of unlawful official action is a defense available for selective undermining of civil rights laws leads me to shake my head both in wonder and despair.
I. FACTUAL BACKGROUND
Barker and Martinez are both American citizens.2 They fled Cuba for Miami, Florida, after Fidel Castro came to power. Both Barker and Martinez have been covert agents for the Central Intelligence Agency. Martinez worked for the CIA from 1959 until 1972, and was involved in infiltrating Cuba and supplying arms and ammunition to Cuba from a United States base. Barker *959worked undercover in Cuba before his arrival in Miami in 1960. He was terminated in 1966. During their CIÁ employment both Barker and Martinez were involved with the Bay of Pigs operation, and Barker’s immediate superior for that venture was E. Howard Hunt, known as “Eduardo” in Miami’s Cuban-American Community.
Hunt, along with Egil Krogh, David Young and G. Gordon Liddy, composed the White House “Room 16” Unit. The unit was established under the supervision of John Ehrlichman, then Assistant to the President for Domestic Affairs, to investigate and stop leaks of classified information. Publication of the “Pentagon Papers” was the catalyst for the Room 16 unit’s formation, and obtaining information on the source of that famous leak — Daniel Ellsberg — became the unit’s primary concern. After Ellsberg’s psychiatrist, Dr. Fielding, refused to be interviewed by FBI agents, the unit decided to obtain copies of Ellsberg’s medical records by a surreptitious entry of Dr. Fielding’s office.
To avoid White House employee involvement in the actual search, Hunt recruited Barker, and through Barker, Martinez and Felipe De Diego.3 Barker testified (Tr. 2197ff) that Hunt said he was in an “organization that had been created in the White House level — this organization he described as a sort of superstructure that was above the FBI and the CIA” and “had been formed because the FBI was tied by Supreme Court decisions . . . and the Central Intelligence Agency didn’t have jurisdiction in certain matters.” He spoke of “some kind of upheaval in the intelligence community in Washington” and asked if Barker would like to become operational again, which Barker termed a “very happy thing to us.”
While conducting these negotiations, Hunt represented himself accurately as working in the White House.4 We may assume for present purposes that a jury might reasonably find that Barker and Martinez did, as they later put it, believe or assume that Hunt was a “CIA man” in the White House, notwithstanding contrary indications.5 Martinez was aware that his participation in the plan might have been illegal for a “normal citizen.” (Tr. 2170).
On September 2, 1971, Hunt and Liddy met Barker, Martinez and De Diego at a hotel in Beverly Hills, California. Hunt informed the defendants that they were to enter Dr. Fielding’s office and photograph the files of one of his patients. They were told that Dr. Fielding was not himself the subject of investigation. There was no discussion of authorization for the entry and search. The group met the following day, and Hunt showed Barker and Martinez identification papers and disguises obtained from the CIA.
On the. evening of September 3, Barker and De Diego, dressed as delivery men, delivered a valise containing photographic *960equipment to Dr. Fielding’s office. Later that evening they and Martinez, having been told that the “Ellsberg” file was the one they were to search for and photograph, entered Dr. Fielding’s office and rifled the files. They entered by force, breaking the lock on the office door, and also used force, a crowbar, to open Dr. Fielding’s file cabinets. Although the plan was to accomplish entry without force, it also included the alternative that in the event force had to be used, Barker and his colleagues were to make the entry look as if it had been by an addict seeking drugs, and accordingly, before leaving, they scattered pills about the office. The next day Barker and Martinez returned to Miami, having failed to locate the Ellsberg records.
As a defense to the March 7, 1974, indictment for conspiring to violate Dr. Fielding’s Fourth Amendment rights, Barker and Martinez sought to discover and present evidence as to the reasonableness of their belief in Hunt’s authority to conduct the Fielding operation. Their motion for discovery and their proposed instructions based on the defense of reasonable reliance on Hunt’s apparent authority were denied by the District Court.6 At trial both defendants were nevertheless given latitude to testify extensively about the circumstances underlying their involvement in the Fielding break-in. The jury was advised that to convict they had to find the purpose of the break-in was to enter and search Dr. Fielding’s office without a warrant or permission, and that the conspirators were governmental employees or agents acting for governmental rather than purely personal purposes. The court further instructed the jury that a mistake of fact may constitute a defense to the conspiracy charge, so that if a defendant honestly believed a warrant had' been obtained, this mistake of fact would render him innocent, because it would not be said he intended a warrantless search.7
II. AFFIRMATIVE DEFENSES
The defendants’ principal argument on appeal is the claimed error of the District Court in refusing them a defense based upon their good faith reliance on Hunt’s apparent authority. They say the mens rea required for a violation of section 241 was negatived by a mistake of fact “coupled with” a mistake of law.8 They amplify: “The mistake of fact was the belief that Hunt was a duly authorized agent; the mistake of law was that Hunt possessed the legal prerequisites to conduct a search — either probable cause or a warrant.”9 In the alternative, they contend that Hunt’s inducement estops the government from prosecuting under entrapment principles. I turn to the entrapment question first.
A. Entrapment
The defense of entrapment, developed as a construction of legislative intent, has been evolved for the case of an otherwise innocent person who has been induced to commit a crime by a law enforcement agent whose purpose was prosecution. Recognition of the defense works as an estoppel on the government, preventing it from reaping the benefits of the prosecution and conviction it sought to obtain by unconscionable means.10
*961The entrapment rationale is wholly inapplicable to this case. In recruiting Barker and Martinez, Hunt was not acting as a law enforcement official seeking to induce their participation in order to have them prosecuted and punished. He instead sought their aid for other governmental ends which his unit judged best served by illegitimate invasion of the rights of others. The true entrapment defense seeks to prevent government officials from realizing benefits from unlawful inducement, and thereby to deter official illegality. Extension of the defense to reach Hunt’s inducement of Barker would serve to reinforce the illegal conduct of the government agent, who could then delegate the “dirty work” to private citizens shielded from responsibility by the defense that they had been recruited by a government agent.11
B. The Claim of Mistake of Fact
It is settled doctrine that an honest mistake of fact generally negatives criminal intent, when a defendant’s acts would be lawful if the facts were as he supposed them to be.12 This is considered a matter of essential fairness.13 Even had the facts been as Barker and Martinez claim now to have supposed them, however, their Fielding break-in would still have contravened the clear requirements of the Fourth Amendment.
Classifying mistakes as either of fact or of law is not always an unambiguous task.14 At trial, defendants offered an instruction that rather elusively muddled the two types of mistakes, and sent them in an incorrect context as to the “specific intent” required for the crime.15 The brief before this court attempts to correct that prior lack of clarity *962by advancing the proffered defense with a closer attention to the discrete policies underlying the mistake of fact and mistake of law defenses. It may be convenient to take up the appellants’ defense in terms of the recognized doctrinal distinctions before turning to the applicability of exceptions.
For purposes of this appeal it can be assumed that Barker and Martinez undertook the Fielding break-in while believing that the ultimate “target” was a foreign security risk for the United States. The defendants do not simply claim that they were factually mistaken about the purpose of their mission, however; they also urge that their error in believing that Hunt was a “duly authorized” agent was a factual error. Although defendants claim to maintain a distinction between mistake of fact and mistake of law, this contention entirely erodes the distinction. Defendants did not claim, or offer to prove a belief, that the President or Attorney General personally authorized the break-in; nor did they seek to advance any other specific factual basis for the belief that Hunt was “duly authorized.” They certainly did not offer to prove that they believed John Ehrlichman “expressed or implied that the break-in of Dr. Fielding’s office was legal under a national security rationale.” (Merhige, concurring at - of 178 U.S.App.D.C., at 957 of 546 F.2d). They did not seek outside advice about the factual requirements necessary for such an undertaking. The appellants do not claim they mistakenly believed they were acting under a warrant. Nor do they claim any other representation of fact, express or implied, or mistake of fact.
Martinez says he believed that Hunt was still employed by the CIA. He has apparently put himself in a no-lose position on this point, for when his CIA case officer replied to his inquiry that Hunt was not then employed by CIA, he assumed this answer was a ruse or cover. But this mistake of fact — whether reasonable or not— was irrelevant, for even if Hunt had then been employed by CIA, his employment would not have validated the break-in and search.
At bottom, the defendants’ “mistake” was to rely on Hunt’s White House and CIA connections as legally validating any activities undertaken in the name of national security. They had been told that the matter was something that could not be handled by the FBI because of court decisions or by the CIA because of its limited jurisdiction. Martinez conceded in testimony that he was aware that the operation might have been illegal for a “normal citizen” (Tr. 2170). Barker and Martinez did not consider themselves “normal” because of their putative status as CIA-White House operatives. Their mistake as to who or what the law authorized or required cannot be repackaged as a mistake of “fact” that Hunt had been duly authorized.
It can be assumed for present purposes that defendants mistakenly believed they were entering Dr. Fielding’s office in order to get information on some other person who was a “traitor.” However, their actions taken pursuant to that mistaken belief did not conform with the law’s requirements. The fundamental right to be free from warrantless physical searches has been clear since Boyd v. United States16 recognized that such cases as Entick v. Carring*963ton 17 so intensely affected the framers that those cases have long been taken “as sufficiently explanatory of what was meant by unreasonable searches and seizures.”18 Even when the Executive acts to avert foreign security dangers, no Federal judge, indeed no Department of Justice submission, has ever suggested that action otherwise clearly prohibited by the Fourth Amendment would be valid in the absence of explicit authorization by the President or Attorney General. No generally delegable power to authorize such searches is reconcilable with the requirements of the Fourth Amendment.19
On the separate issue of whether physical searches can properly be included in a foreign security exception to the warrant requirement, the Special Prosecutor says No, while the Attorney General has filed a short memorandum saying Yes, if specifically authorized by the President or the Attorney General.20 The fact that defendants do not assert a belief that the President or Attorney General authorized their violation of Dr. Fielding’s fundamental right to be free of warrantless government forays into his office takes this case outside the mistake of fact defense, for whatever defendants’ other beliefs as to the facts, they would not, if true, establish exculpation.
In an earlier case involving these same defendants, and roughly the same defense as that advanced here, Judge Wilkey rejected the argument that “an error as to the legality of a particular activity, even if based upon the assurances of a governmental official” can be treated as a mistake of fact. He recognized the importance of the issue, for a mistake of fact defense would justify conduct whenever the mistake was honest whether reasonable or not, while the mistake of law defense, if held applicable, justifies conduct only if the mistake is reasonable. United States v. Barker, (dissent) 168 U.S.App.D.C. 312, 514 F.2d 208, 264-68 & n. 76 (1975). I subsequently consider whether the mistake of law defense should be expanded to reach this case. But certainly this should not be done behind the screen that what is involved is a mistake of fact. Defendants cannot avoid the limitations that have historically shaped exculpation because of legal mistake, by characterizing as factual error their belief that a generalized aura of executive branch authorization warranted their nighttime intrusion.
C. Mistake of Law — Generally-
Viewed as a mistake of law, the defense raised by defendants requires us to confront a fundamental tension in our criminal law. The criminal law relies in general on the concept of culpability or blameworthiness as a prerequisite to guilt, expressed as a requirement of mens rea.21 The Supreme *964Court has, however, rejected Blackstone’s formulation that a “vicious will” is necessary to constitute a crime, see Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), and as a society we have stopped short of requiring a subjective behavioral assessment of each offender’s individual stock of knowledge about the law and its applicability.22 Instead, “the rule that ‘ignorance of the law will not excuse’ . • . .is deep in our law.” Lambert v. California, 355 U.S. at 228, 78 S.Ct. at 243, quoting Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68, 30 S.Ct. 663, 54 L.Ed. 930 (1910). The Supreme Court has generally refused to recognize a defense of ignorance of, or mistake as to, the requirements of the law violated, even when the mistake refutes any subjective moral blameworthiness in the offender. See, e. g., United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975); United States v. International Minerals & Chemical Corp., 402 U.S. 558, 563, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971). United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); United States v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 88 L.Ed. 48 (1943).23 Similarly, the A.L.I.’s Model Penal Code § 2.02(9) defines the requirements of culpability so that “neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense unless the definition of the offense or the Code so provides.”24
The general principle that rejects the defense of ignorance of the requirements of the criminal law, or of mistake as to those requirements, is not a casual or happenstance feature of our legal landscape. It formed a part of English and canon law for centuries and all the time with recognition that it diverged from an approach of subjective blameworthiness.25 Its continuing vitality stems from preserving a community balance, put by Holmes as a recognition that “justice to the individual is rightly outweighed by the larger interests on the other side of the scales.”26 Great minds like Holmes and Austin have struggled with the tension between individual injustice and society’s need and have concluded that recognition of the mistake of law defense would encourage ignorance rather than a determination to know the law, and would interfere with the enforcement of law, be*965cause the claim would be so easy to assert and hard to disprove.27
In some aspect the doctrine may be viewed as a doctrine of negligence, holding individuals to minimal conditions of responsibility and making acting without legal knowledge blameworthy for the failure to obtain that knowledge.28 Hall suggests in addition that the rationale can be expressed in terms of ethical policy — that the criminal law represents certain moral principles and that to recognize ignorance or mistake of law as a defense would contradict those values.29 Still, it must in the last analysis be recognized that at its core, the basic mistake of law doctrine imposes liability even though defendant acted in good faith and made a “reasonable” mistake. Otherwise, criminal statutes would be in suspense on any point not authoritatively settled.30 In a particular case adherence to a generally formulated rule may seem to work injustice, but the jurists pondering the general doctrine have both deemed such individual hardships outweighed by the common good, and have taken into account that certain features of the overall system of criminal justice permit amelioration and relief.31 These flexible opportunities for mitigating the law’s impact — through prosecutorial discretion,31a judicial sentencing, and executive clemency — avoid the necessity of bending and stretching the law, at the price of undermining its general applicability.
Every mature system of justice must cope with the tension between rule and discretion. Rules without exceptions may grind so harsh as to be intolerable, but exceptions and qualifications inflict a cost in administration and loss of control. The balance struck by the doctrine with which we are now concerned provides for certain rigorously limited exceptions (inapplicable to defendants’ claim) but otherwise leaves amelioration of harsh results to other parts of the system of justice. In my view, history has shaped a rule that works, and we should be slow to tinker. Consequently, defendants here must be held to a responsibility to conform their conduct to the law’s requirements. To hold otherwise would be to ease the path of the minority of government officials who choose, without regard *966to the law’s requirements, to do things their way, and to provide absolution at large for private adventurers recruited by them.
D. Exceptions to the Mistake of Law Doctrine
I do not discount defendants’ claims that their background, and particularly their previous relations with the CIA32 and Hunt explain their good faith reliance on Hunt’s apparent authority and their consequent failure to inquire about the legality of the activities they were to undertake on his request.33 I feel compassion for men who were simultaneously offenders and victims, and so did the trial judge when it came to sentencing. But testing their special circumstances against analogies they rely on to project a mistake of law defense, leads me to reject their claim to be relieved of personal accountability for their acts.
1. Claim of Good Faith Reliance on an Official’s Authority
Appellants invoke the acceptance of good faith reliance defenses in the Model Penal Code. However, the American Law Institute carefully limited the sections cited to persons responding to a call for aid from a police officer making an unlawful arrest,34 and to obeying unlawful military orders,35 and specifically rejected the defense for other mistake of law contexts.36 In both instances, the A.L.I. recognizes limited curtailment of the doctrine excluding a mistake of law defense on the ground that the actor is under a duty to act37 — to help a police officer in distress to make an arrest when called upon, or to obey military orders. In each case, society has no alternative means available to protect its interest short of imposing a duty to act without a correlative duty to inquire about the legality of the act.38 Punishing an, individual for *967failure to inquire as to the lawful basis for the officer’s request would frustrate the effective functioning of the duly constituted police (and military) force and in its operation on the individual would compel a choice between the whirlpool and the rock.39
There is no similar incapacity of the government to act to protect its ends when a citizen takes action when he is under no duty to do so. Thus under the Model Penal Code, a citizen who volunteers to assist another citizen, or volunteers to assist a police officer in making an unlawful arrest, cannot avail himself of the defense — available to a person responding to an officer’s call — that he participated without making an inquiry as to whether the arrest was lawful. The volunteer is exculpated only if he believed that the arrest was lawful and believed in the “existence of facts which, if they existed, would render the arrest valid.”40 Thus, even if private citizen intervention appears socially desirable in a particular case, the citizen’s scope of action and protection in the event of mistakes are narrow, because, overall, forceful citizen enforcement of the law is susceptible of abuse41 and mischief.
Barker and Martinez were under no tension of conflicting duties comparable to that experienced by a soldier or citizen responding to orders. They had and claim no obligation to aid Hunt. Nor did they have a belief of fact rendering their voluntary assistance lawful within § 3.07(4), supra note 33. Nor is there a compelling social interest to be served in allowing private citizens to undertake extra-legal activities, acting simply on the word of a government official. The purposes of the law in rejecting such a defense are underscored by the very kinds of extra-governmental, outside-normal-channels conduct that Barker and Martinez engaged in here. Government officials who claim to be seeking to implement the ends of government by bypassing the agencies and personnel normally responsible and accountable to the public transmit a danger signal. Barker and Martinez acted to help Hunt on his explanation that he sought their recruitment because the FBI’s “hands were tied by Supreme Court decisions and the Central Intelligence Agency didn’t have jurisdiction in certain matters.” 42 There is reason for the law to carve out limited exceptions to the doctrine negating defenses rooted in mistake of law, but the pertinent reasons have minimal weight, and face countervailing policies, when they are invoked for situations that on their face are outside the basic channels of - law and government — in this case, requests for surreptitious or, if necessary, forcible entry and clandestine files search. These are plainly crimes, malum in se,' unless there is legal authority. Citizens may take action in such circumstances out of emotions and motives that they deem lofty, but they must take the risk that their trust was misplaced, and that they will have no absolution when there was no authority for the request and their response. If they are later to avoid the consequences of criminal responsibility, it must be as a matter of discretion. To make the defense a matter of right would enhance the resources available to individual officials bent on extra-legal government behavior. The purpose of the criminal law is to serve and not to *968distort the fundamental values of the society-
2. Exception for Official Misstatements of Law
Although defendants relied on the analogy to a police officer’s request for assistance, Judge Merhige votes to reverse on the ground that appellants could claim as a defense that a citizen has a right to take action in reliance on a government official’s assurance that such action is permissible. The Model Penal Code has addressed itself to that broad problem, and has approved a defense that is narrowly confined in order to protect social interests.43 Its provision yields no excuse for defendants’ conduct. Section 2.04(3) of the Code provides a carefully and properly drawn recognition of a defense based on reasonable reliance on a statute, judicial decision, administrative order or “an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.” Mainly directed to the mala prohibita offenses, the categories protected “involve situations where the act charged is consistent with entire law-abidingness of the actor, where the possibility of collusion is minimal . . . ”44
The section contemplates both accountability and responsible action on the part of the government official giving advice about the law. But defendants do not claim they received any advice, either express or implied, from Ehrlichman, and Hunt had only an ad hoc, undefined position in the White House.45 He had no on-line enforcement or interpretative powers or responsibilities. His undifferentiated power stemmed solely from membership in a large White House bureaucracy.46 The potential for official abuse of power would be greatly magnified if such a government official can recruit assistance from the general public, constrained neither by accountability guidelines guiding agency action under statutorily mandated powers, nor by the recruited citizen who, under the defendants’ formulation, would be under no duty to inquiry about the legality of the official’s request.47
To stretch the official misstatement of law exception for the facts of this case is to undercut the entire rationale for its recognition as an exception. The Model Penal Code hedges in the defense to permit reliance only on an “official interpretation of the public officer . . . charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.” (emphasis added). Certainly Hunt cannot sensibly be described as having been charged by law with responsibility for interpreting or enforcing either § 241, or the Constitution from which the violations of § 241 in this case sprang. Nor can it be said in any meaningful sense that he had the power to provide an official interpretation of the law. These restrictions on the applicability of the official statement exception did not arise haphazardly; they were deliberately drafted to allow, and indeed to promote, good faith reliance on official pronouncements with *969objective indicia of reliability — those made by officials specifically charged with interpreting or enforcing the specific law defining the specific offense charged against the defendant. A defense so confined has values for the law: It avoids punishing those who rely on a crystallized position taken by the officer or body charged by statute with interpreting the law in a particular area.47® The officer’s position in a channel of authority is readily identifiable; any mistakes he makes can be remedied by readily perceived and structured avenues of relief. There is no opening the door to justification for serious offenses based on unrecorded discourse from someone who has an undefined but high-sounding berth in the government.
The “official interpretation” defense thus structured is a functional analogue of the defenses of reliance on a statute, judicial decision or administrative order. It is justified by its twin underlying assumptions that the official is one to whom authority has been delegated to make pronouncements in a field of law, and that the authority can be held accountable by explicitly grounding it in the hands of an identifiable public official or agency. So grounded, the interest of both private citizens and government is served by protecting actions taken in reliance on that interpretative authority. But none of these safeguards of regularity is present in this case. A staff man or even a lower echelon official of the White House may be taken as a man of presumptive standing and even influence, but not seriously as a source of official interpretation of law, much less of such matters as the validity of a stealthy breaking and entering. Even cases postulating a national security exception for wiretaps have never suggested more than that the President or the Attorney General could have authority to evaluate and authorize an exception. No claim of Presidential or Attorney General authorization has been made in this case. The official misstatement of law defense embodies a fundamental requirement that the erroneous interpretation be made by an official in fact possessing the power to make a binding interpretation; it is wholly inapplicable to a case like this, of a claim of reliance on a government official in ah area in which he has no power to interpret. And it is blatant incongruity to stretch an escape clause for mistakes of law arising in the innately public business of official interpretations of law to immunize a secret conference for planning a stealthy entry into a private home or office.
3. The Inapplicability of Other Exceptions
While a mistake of law may negative a specific element of certain crimes,48 or may be accepted where the mistake pertains to a violation of purely civil law as contrasted with the requirements of the criminal law,49 none of these carefully wrought exceptions have application to the case at bar. Defendants’ mistake of law did not pertain to some rule irrelevant to or remote from the criminal law. Nor does section 241 recognize a mistake of law defense or require a specific intent like the statute at issue in People v. Weiss, 276 N.Y. 384, 12 N.E.2d 514 (1938), punishing a “willful” seizure of a person with “intent to [act], without authority of law.”
*970E. The “Specific Intent” Requirement of the Civil Rights Offenses
This brings me to the question whether the civil rights offenses involved here are of such a character, either in terms of required intent or affirmative defense, as to make available an extension of criminal defenses to include mistake of law. I conclude, on the contrary, that this consideration reinforces the rejection of the proffered defense.
The court is dealing here with violations of civil rights. We all agree that “the law is clear that Dr. Fielding’s Fourth Amendment rights were breached when the defendants broke into and searched his office without the requisite judicial authorization” and that they acted with “a purpose to invade constitutionally protected interests.” (Ehrlichman, 178 U.S.App.D.C. -, at -, 546 F.2d 910, at 928). Unless we are willing to undercut criminal enforcement of the civil rights offenses, it is entirely impermissible to stretch doctrines of mistake of law to reach the result of excusing that violation of Fourth Amendment rights. The majority excuses defendants’ conduct on their contention of mistaken reliance on official lawlessness — even though conspiracy for illegal government purposes with government officials is the gravamen of the offenses charged. What the reversals accomplish is an erosion of pertinent Supreme Court rulings rejecting contentions based on “specific intent.”
Conviction under Section 241 requires that the offender acted with a “specific intent”50 “to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . . ” This does not mean that he must have acted with subjective awareness that his action was unlawful; nor need the defendant have thought in constitutional terms while acting. See, e. g., Screws v. United States, 325 U.S. 91, 104-07, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). It is enough that the constitutional right is clearly defined and that the conspirators intend to invade interests protected by the Constitution.51
In essence, defendants Barker and Martinez claim that the destructive social impact wrought by their invasion of another’s civil rights is exonerated by the law so long as an individual is acting at the request of a government official and on his implication that he has legal authority. The price to society of tolerating reliance on the very official misconduct § 241 was directed against, forces us to reject defendants’ argument.52 As the Supreme Court made clear in Screws,53 the scope and significance of the all-important civil rights criminal statutes are not to be cabined or cut down, either by expanding scienter requirements to include knowledge of law or by enlarging defenses based on ignorance or mistake of law. A private citizen must start with a beginning point in his understanding of what the law requires. Breaking and entering a home or office is malum in se — a gross and elementary crime when done for personal reasons, a gross and elementary violation of civil rights when done with the extra capability provided by a government position. Defendants were charged and convicted of violating a clearly defined con*971stitutional right.54 They were not acting in an official law enforcement capacity. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972).55 Their defense instead reduces to an arguable but untested speculation that their otherwise unlawful behavior would be vindicated by a foreign security exemption to the Fourth Amendment’s protections. In regard to subjective “good faith,” they are indistinguishable from any other criminal defendant who deliberately breaks the law in the mistaken expectation that he can assert a constitutional defense at trial or one who is civilly disobedient because his framework for moral action does not coincide with his society’s legal framework.56 Such persons frequently act on a high plane of patriotism, as they view it, but that does not allow them to proceed in ignorance or disregard of the requirements of law.57
III. CONCLUSION
I do not propose to consider whether appellants were unreasonable in accepting a particular view of the law. In the first place, Barker and Martinez do not urge as justification that they had a specific view of the law, but rather that they are entitled to absolution because they relied on a government employee’s credentials and his assurance, by implication, that their action was lawful. Even so, one might well raise the question as to how appellants could reasonably believe that what they were doing was *972lawful when they were told they were called in because the action would have been unlawful for the F.B.I.
The ultimate point is that appellants’ mistake of law, whether or not it is classified as reasonable, does not negative legal responsibility, but at best provides a reason for clemency on the ground that the strict rules of law bind too tight for the overall public good. Any such clemency is not to be obtained by tinkering with the rules of responsibility but must be provided by those elements of the system of justice that are authorized by law to adjust for hardship and to provide amelioration. We should refuse to cut away and weaken the core standards for behavior provided by the criminal law.58 Softening the standards of conduct rather than ameliorating their application serves only to undermine the behavioral incentives the law was enacted to provide. It opens, and encourages citizens to find, paths of avoidance instead of rewarding the seeking of compliance with the law’s requirements. The criminal law cannot “vary legal norms with the individual’s capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable, such as the mental disease or defect that may establish irresponsibility. The most that it is feasible to do with lesser disabilities is to accord them proper weight in sentencing.”59
The sentence performed its proper function here. Our system is structured to provide intervention points that serve to mitigate the inequitable impact of general laws while avoiding the massive step of reformulating the law’s requirements to meet the special facts of one hard case. Prosecutors can choose not to prosecute, for they are expected to use their “good sense . conscience and circumspection” to ameliorate the hardship of rules of law.60 Juries can choose not to convict if they feel conviction is unjustified, even though they are not instructed that they possess such dispensing power.61 In this case, Barker and Martinez were allowed to testify at length about the reasons motivating their involvement in the Fielding operation. This was an exercise of discretion by the judge that gave elbow room to both defendants and jury.62
In sentencing Barker and Martinez after they were convicted to only three years probation, the trial judge made a subjective evaluation of the defendants’ conduct in light of the goals of the criminal law.63 Barker and Martinez’s patriotic motives, good intentions, and prior experience with the CIA and Hunt must all have influenced the sentence imposed.64 The trial judge *973exercised his sentencing power to distinguish, in terms of degree of moral guilt, between appellants Barker and Martinez and codefendant Ehrlichman. But sympathy for defendants, or the possibility that their mistake might be considered “reasonable” given their unique circumstances, must not override a pragmatic view of what the law requires of persons taking this kind of action. I come back — again and again, in my mind — to the stark fact that we are dealing with a breaking and entering in the dead of night, both surreptitious and forcible, and a violation of civil rights statutes. This is simply light years away from the kinds of situations where the law has gingerly carved out exceptions permitting reasonable mistake of law as a defense — cases like entering a business transaction on the erroneous advice of a high responsible official or district attorney, or like responding to an urgent call for aid from a police officer. I dissent.
. Defendants also contend that the district court erred in failing to dismiss the indictment for grand jury improprieties; in failing to correct for prejudicial publicity; and in failing to give a jury nullification charge. The grand jury point is dealt with in note 58, infra. Their claims of error in refusing to dismiss the indictment or order a continuance or change of venue on prejudicial pretrial publicity grounds should be rejected for the reasons set forth in United States v. Ehrlichman, decided this day, at note 8. A right to a jury nullification charge was rejected by this court in United States v. Dougherty, 154 U.S.App.D.C. 76, 93-100, 473 F.2d 1113, 1130-1137 (1972), and that decision controls defendants’ claim as well.
. Barker was an American citizen by birth, lost his citizenship while living in Cuba, but reacquired it. (Tr. 2187). Martinez became a naturalized citizen in July 1970 (Tr. 2149).
. Although De Diego was indicted under § 241 along with the other defendants, the District Court on May 22, 1974, ordered the indictment as to De Diego dismissed with prejudice on the ground that the Government could not meet its burden of showing that its case was not tainted by the use of immunized testimony. This court reversed that order. United States v. De Diego, 167 U.S.App.D.C. 252, 511 F.2d 818 (1975). The Special Prosecutor, however, subsequently elected not to pursue the prosecution.
. Barker visited and telephoned Hunt in his Executive Office Building office, and also received letters from Hunt on White House stationery, all serving to corroborate Hunt’s employment.
. The Barker-Martinez brief notes (p. 12) that with respect to Martinez’s reporting “Eduardo’s” visit to Miami to his CIA case officer, “[t]he failure of his case officer to respond on the first occasion was significant to Martinez because normally when he reported the presence of someone associated with the CIA in Miami he was told whether the person’s name was cleared. (M., Tr. 2157-58). On the second occasion the case officer’s denial that ‘Eduardo’ was in the White House, something which Martinez knew to be a fact, led Martinez to conclude that his case officer either was not supposed to know about Hunt or that his case officer did not want to convey Hunt’s importance. (M., Tr. 2157) . At a later point Barker told Hunt that he had also assumed at the time that Hunt was still with the CIA and simply had been positioned at the White House by the agency, a customary CIA practice. (Hunt, Tr. 918-20).”
. See United States v. Ehrlichman, 376 F.Supp. 29, 35-36 (D.D.C.1974); Barker Appendix at 104-05. The text of the proffered instruction is set out in note 15 infra.
. Tr. 2524-26. While the trial judge said “valid warrant,” there was no testimony or contention that defendants had a belief that a warrant had been obtained. A person can act upon the basis of a warrant that has been issued in fact, even though it is later held invalid, without incurring personal legal responsibility. This would come within the narrow class of cases where a reasonable mistake of law does constitute a defense, as set out in Part IID2, of this opinion. See also Model Penal Code § 2.04(3)(b) (P.O.D.1962).
. Barker Br. at 31.
. Barker Br. at 31-32.
. See Hughes, C. J. in Sorrells v. United States, 287 U.S. 435, 448, 53 S.Ct. 210, 215, 77 L.Ed. 413 (1932): “We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the *961instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them. . . . This, we think, has been the underlying and controlling thought in the suggestions in judicial opinions that the government in such a case is estopped to prosecute or that the courts should bar the prosecution.”
Sorrells was followed in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed. 848 (1958), and United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In Sherman, 356 U.S. at 372, 78 S.Ct. at 820 Warren, C. J., (in a passage quoted in part with approval of Rehnquist, J. in Russell, 411 U.S. at 434, 93 S.Ct. 1637) stated: “The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. . Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.”
. Congress is presently considering a major extension of the entrapment defense in the bill proposed to codify and revise title 18, S. 1, § 551, 94th Cong., 1st Sess. (1975). As of the present, it is not known or knowable whether or in what form this proposal will be passed, and what Congress may contemplate as to cases previously tried.
. See, e. g., United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); 1 Wharton’s Criminal Law and Procedure § 157, (1957); G. Williams, Criminal Law, The General Part §§ 52-74 (2d Ed. 1961); Model Penal Code § 2.04 (1) (P.O.D.) (1962).
. See H. M. Hart, Jr. “The Aims of the Criminal Law”, 23 Law and Contemporary Problems 401, 414 (1958). Cf. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), and discussion in note 49 infra.
. Generally, Glanville • Williams distinguishes between them as follows: “[A] fact is something perceptible by the senses, while law is an idea in the minds of men.” Williams, Criminal Law, The General Part (2d ed., 1961), § 100, p. 287.
. Defendants’ proposed instruction read: “You have heard evidence during the course of the trial pertaining to the state of mind of certain of the. defendants at the time they agreed to participate and thereafter did participate in the September 3, 1971 entry of the office of Dr. Lewis J. Fielding. I instruct you that a defendant’s motives in committing acts which the law forbids are not germane to whether an offense has been committed. However, since specific intent is an essential element of this offense, if a defendant acted out of a good faith belief that what he was doing was with authority of law and not in violation of the law, that is a defense to the crime charged, even if that sincere belief that his actions were lawfully authorized was erroneous.”
“This is not to say that a mistake of law on the part of a defendant would constitute a defense to the crime charged. Neither ignorance of the law nor mistake of law would excuse the criminal conduct in this case. However, if actions are taken as the result of mistake of fact, as opposed to ignorance or a mistake of law, then the defendant has not *962formed the requisite intent for the crime charged. Accordingly, if you find that a defendant believed he was acting out of a good faith reliance upon the apparent authority of another to authorize his actions, that is a defense to the charge in Count I, provided you find that such a mistake by a defendant was made honestly, sincerely, innocently and was a reasonable mistake to make based upon the facts as that defendant perceived them.” Barker App. 104-05.
To the extent defense counsel was of the view, as appears from the third sentence of his proposed instruction, that a good faith mistake of law negatives the specific intent required for the crime, this is not sound. See Sec. HE of this opinion and Sec. IIA of our opinion in U. S. v. Ehrlichman, issued today; United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941).
. 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).
. 95 Eng.Rep. 807 (1765). Lord Camden upheld damages against Lord Halifax, the Secretary of State who issued the general warrant to seize papers in a case of seditious libel, holding this had never been authorized by a court, other than Star Chamber, and was not a valid justification for a trespass.
. 116 U.S. at 627, 6 S.Ct. at 530.
. See discussion in the companion opinion of United States v. Ehrlichman at Sec. IIB1, and the District Court’s reliance on the defendants’ failure to allege Presidential or Attorney General authorization, 376 F.Supp. at 34.
. The fact that the Attorney General has recently — and so far as we are aware for the first time — made the claim that there is a “national security” exception that would permit physical intrusion in a citizen’s home or office on specific approval of the President or Attorney General, even in the absence of a warrant, does not mean that the law on this position is now to be regarded as clouded with doubt so as to remove such actions from the scope of section 241.
. H. Packer, The Limits of the Criminal Sanction 112-21 (1968), explains the use of culpability as an “appropriate criterion for limiting the reach of state intervention”, “transcendpng a] calculus of crime preventing.” But see J. Hall, General Principles of Criminal Law 77-83 (2d ed. 1960), concluding that even in the earliest cases mens rea was concerned with the intentional doing of a wrongful act and not a general notion of moral blameworthiness; Seney, “ ‘When Empty Terrors Overawe’ — Our Criminal Law Defenses,” 19 Wayne L.Rev. 947, 969 *964(1973), conceptualizing criminal law as imposing a positive duty upon individuals to refrain from antisocial conduct.
. But see Hall and Seligman, “Mistake of Law and Mens Rea,” 8 U.Chi.L.Rev. 641 (1941). (Hereinafter cited as Hall and Seligman). Of course, totally subjective assessments of an accused’s state of mind can never be fully realized. For example, a finding of the subjective intent required for a first degree murder conviction may be and frequently is based on objective inferences from evidence other than direct evidence of the state of mind.
. Only where scienter is “historically required”, as in embezzlement or larceny (see Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1951), discussed in U. S. v. Freed, 401 U.S. at 607 n. 13, 91 S.Ct. 1112), or where the circumstances requiring the law’s application do not “alert the doer to the consequences of his deed” (Lambert, 355 U.S. at 228, 78 S.Ct. at 243) has ignorance of the law been recognized by the Supreme Court as an excuse.
. (P.O.D.1962). See also S. 1, supra note 11, § 303(d)(1) “Existence of Offense — Proof of knowledge or other state of mind is not required with respect to: (A) the fact that particular conduct constitutes an offense or is required by or violates a statute or a regulation, rule, or order issued pursuant thereto; (B) the fact that particular conduct is described in a section of this title; or (C) the existence meaning, or application of the law determining the elements of an offense. This careful specification of the elements of an offense is consistent with “[t]he modem practice in drafting penal legislation ... to specify defenses when intended.” United States v. Moore, 158 U.S.App.D.C. 375, 413, 486 F.2d 1139, 1177, cert. denied 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973).
. See Hall & Seligman’s summary, supra at 643-46.
. Holmes, The Common Law 48 (1881).
. As to the doctrinal support for their positions, an excellent summary is presented in Hall & Seligman, supra at 646-651.
. Hart, “The Aims of the Criminal Law,” 23 Law and Contemporary Problems ' 401, 413 (1958).
. “The criminal law represents an objective ethic which must sometimes oppose individual convictions of right. Accordingly, it will not permit a defendant to plead, in effect, that although he knew what the facts were, his moral judgment was different from that represented in the penal law.” Hall, “Ignorance and Mistake in Criminal Law,” 33 Ind.L.J. 1, 21 (1957), quoted in Report of the Senate Committee on the Judiciary, Criminal Justice Codification, Revision and Reform Act of 1974, Vol. II, p. 96.
. It would fairly be argued that no liability attaches for e. g., action taken under a “reasonable”, though erroneous, forecast of how far the courts might go in confining a statute through the doctrine of strict construction. Litigation could come to depend not on what the statute meant, but on the reasonableness of a legal view of its meaning.
. If the social harm in a particular case is slight and the ignorance of the law on the part of the offender is fairly obvious, the state may wisely refrain from prosecution in his case. In certain other cases ignorance of law may be considered by the court in mitigation of punishment, or may be made the basis of an application for executive clemency. But if such ignorance were available as a defense in every criminal case, this would be a constant source of confusion to juries, and it would tend to encourage ignorance at a point where it is peculiarly important to the state that knowledge should be as widespread as is reasonably possible.
R. Perkins, Criminal Law 925 (2d ed. 1969). (footnotes omitted).
. The Justice Department decision against prosecuting Richard Helms may be a sound example of prosecutorial discretion shielding against the cut of the law. It should be noted that unlike the defendants in this case, Helms arguably acted in obedience to a duty imposed by statute, and thus might have come within the compass of a mistake of law defense grounded in the actor’s being under a duty to act.
. However, the CIA’s statutory authority does not extend to domestic intelligence activity. 50 U.S.C. § 403(d)(3) (1970).
. Although Barker and Martinez are American citizens, they are in a sense arguing that they could not be expected to make the right judgments about the requirements of American law because they were accustomed to Cuba’s more authoritarian culture. See Bazelon, J. concurring in United States v. Barker, 168 U.S.App.D.C. 312, 514 F,2d at 235 n.38. However under American jurisprudence an alien or naturalized citizen status does not excuse compliance with the criminal law. Cf. United States v. De La Garza, 149 U.S.App.D.C. 200, 462 F.2d 304 (1972).
. See e. g., Model Penal Code § 3.07(4) (P.O.D. 1962):
(4) Use of Force by Private Person Assisting an Unlawful Arrest.
(a) A private person who is summoned by a peace officer to assist in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, provided that he does not believe the arrest is unlawful.
(b) A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a peace officer in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, provided that (i) he believes the arrest is lawful, and (ii) the arrest would be lawful if the facts were as he believes them to be.
. See Model Penal Code § 2.10 (P.O.D.1962). See also Williams Criminal Law § 105, 296-301; United States v. Calley, 22 U.S.M.C.A. 534 (1973).
. When § 3.07(4) does not specifically apply, § 3.09(1) withdraws any justification defense to the use of improper force where the actor’s “error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the law governing the legality of an arrest or search.” The Commentary explained that provision as dealing with a “body of law [which] is not stated in the Code and may not appear in the form of penal law at all. It seems, clear, however, that the policy which holds mistake of penal law to be immaterial applies with no less force to the law of arrest or search.” A.L.I. Model Penal Code § 3.09(1) comment referring to § 3.04(1) comment (Tent. Draft, No. 8, 1958), at 18.
. An analogous defense under proposed S. 1 is § 541 (Exercise of Public Authority), which justifies conduct by private individuals done at the direction of a public servant where the conduct was required or authorized by law. Because their conduct was neither required nor authorized, Barker and Martinez fall outside the scope of this proposed exception.
. A similar rationale underlies the exception for reliance on government authority when acting under a public duty. See Model Penal Code § 3.03 (P.O.D.1962).
. Even under circumstances of conflicting obligations, the reasonableness of a soldier’s obedience to an unlawful order is tested against the objective standard provided by “a man of ordinary sense and understanding.” 22 U.S.C. M.A. supra, at 542-43. See also footnote 31a supra.
. A.L.I. Model Penal Code, § 3.07(4)(b), see note 33 supra; Comment (Tent. Draft No. 8, p. 65 (1958). Cf. Proposed S. 1 § 544(b) (similar provision for recognizing defenses based on justifiable conduct predicated on a mistake about the factual situation).
. See, e. g., U. S. v. Hillsman, 522 F.2d 454, (7th Cir. 1975), holding that defendant’s attempted citizen’s arrest of a fleeing felon was improper under Indiana law because validity of such an arrest rests on whether a felony (a question of fact and of law) had in fact been committed by the arrestee, and no felony had in fact been committed.
. Barker, Tr. 2197.
. A similar approach appears in § 552 of S. 1, supra note 11.
. Model Penal Code, Tentative Draft # 4 Commentary at 138 (1955).
. The Room 16 unit did not even have an Executive Order formally creating it or endowing it with any powers. Cf. the classified Executive Order used to create the National Security Agency (Nov. 4, 1952, U.S. Govt. Org. Manual 185-86 (1969-70)), discussed in Walden, “The CIA: A Study in the Arrogation of Administrative Powers” 39 Geo.Wash.L.Rev. 66, 67 (1970).
. The way that bureaucracy acquires power and handles its conflicts with agency personnel and policy is examined at length in Thomas, “Presidential Advice and Information: Policy and Program Formulation, 35 Law and Contemporary Problems 540 (1970).
. The potentially broad range of illegal activities that a government official might request a private citizen to do, would make it impossible to rely on the educational value that normally inheres when mistake of law is recognized as an excuse in one case that serves to define the law for similarly circumstanced offenders in the future. See, e. g., Fletcher, “The Individualization of Excusing Conditions,” 47 So.Cal.L. Rev. 1269, 1304-05 (1974).
a. Cf. National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 287-289, 443 F.2d 689, 702-04 (1971).
. See, e. g., Mistake § 521 in S. 1; Model Penal Code § 2.04 (P.O.D.1962). The possibility of a definition of particular crimes to permit exculpation by mistake of law does not contradict the general rule denying exculpation. “The prevailing general rule for criminal responsibility is that, unless the legislature indicates its intention to make it. so, ignorance or mistake of law is no defense.” Report of the Senate Committee on the Judiciary, Criminal Justice Codification, Revision and Reform Act of 1974, Vol. II, p. 94.
. See, e. g., Williams, Criminal Law: The General Part, § 117, Fletcher, “The Individualization of Excusing Conditions, 47 So.Cal.L.Rev. 1269 (1974) at 1272. Williams suggests that a mistake as to purely “civil” law is exculpatory while a mistake as to the “criminal” law is not. See G. Williams, supra §§ 107-117, p. 304-451. Hart, supra at 431 n. 70 explains Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1951), as a “claim of right” civil law mistake.
. See, e. g., United States v. Guest, 383 U.S. 745, 753-54, 86 S.Ct. 710, 16 L.Ed.2d 239 (1966).
. As our companion opinion in United States v. Ehrlichman illustrates, Dr. Fielding’s right to be free of a warrantless search was clear at the time of the break-in.
. See United States v. Konovsky, 202 F.2d 721, 730-31 (7th Cir. 1953):
If a police officer acts intentionally under color of his office to subject a citizen to deprivation of his constitutional rights, he cannot justify his action in that respect by orders from his superiors . . . [A]ny instruction to the jury must carefully point out the distinction between the duty of an officer to allow [sic] his superior’s instructions in the performance of his duty and the equal duty not to aid and abet in the deprivation of citizens’ rights.
. 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).
. See part II of this opinion.
. The Bivens court balanced the need to protect agents’ lives in the course of their duties with the citizens’ constitutional rights and held that “it is a defense to allege and prove good faith and reasonable belief in the validity of the arrest and search” to a damage action based on unconstitutional search and seizure. 456 F.2d at 1348. Although it is not clear that recognized civil defenses should be automatically applied to the criminal law context (see e. g. O’Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)), the defense recognized in Bivens does not in any case aid defendants here. The Bivens defense is applicable in an official law enforcement context where the complex law of probable cause must be applied to widely differing congeries of facts; by contrast, the law governing search and seizure without a warrant or Presidential/Attomey General approval is clear and plainly applied to prohibit the conduct Barker and Martinez engaged in. See also Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), on remand, Strickland v. Inlow, 519 F.2d 744 (8th Cir. 1975) (holding a school board member in a 42 U.S.C. § 1983 (1970) action to a standard of conduct based “on knowledge of the basic, unquestioned constitutional rights of his charges.”). Barker and Martinez had a similar responsibility to know the law.
. See, e. g., United States v. Cullen, 454 F.2d 386, 392 (7th Cir. 1971) (“proof of motive, good or bad, has no relevance to [proving requisite intent]”); United States v. Malinowski, 472 F.2d 850, 856, (3d Cir.) cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973) (“We agree with the district court that ‘whatever motive may have led him to do the act is not relevant to the question of the violation of the Statute.’ Were the state of the law otherwise, a defendant’s transgressions would go unpunished so long as he proved a sincere belief in the impropriety of the statutory goal”); United States v. Moyian, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970). It has been suggested, but not as yet implemented, that defendants in test cases should be allowed to assert their good faith belief in the unconstitutionality of a law as a mistake of law defense. See Dworkin, “On Not Prosecuting Civil Disobedience,” 10 N.Y.Rev. of Books 14 (June 6, 1968). One commentator dealing with assessing criminal responsibility of the political offender concludes, however, that considering motive as a factor in mitigation of sentence rather than as an exculpating excuse would be the “most pragmatic proposal” for dealing with such offenders. Note, Criminal Responsibility and the Political Offender, 24 American U.L.Rev. 797, 833 (1975).
. Barker and Martinez contend, as a separate point, that they lacked “specific intent” to violate a federal right of Dr. Fielding, because the warrantless entry and search of his office were only incidental to their primary purpose of photographing Daniel Ellsberg’s medical file, an objective they characterize as at best a state offense outside the reach of section 241. The Supreme Court’s most recent pronouncement on the requirements of section 241 in Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), makes clear that “if one of [the purposes of the conspiracy] — whether primary or secondary — be the violation of federal law, the conspiracy is unlawful under federal law.”
. My rejection of the defendants’ mistake of law defense also leads me to reject defendants’ contention that failure to present evidence on their claimed defense to the grand jury requires dismissal of the indictment. Nor is an indictment subject to dismissal because of challenges to the competency or sufficiency of the evidence before the grand jury. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 100 L.Ed. 397 (1956).
. A.L.I. Model Penal Code § 2.09, Comment (Tent. Draft No. 10, 1960), at 6.
. U. S. v. Dotterweich, 320 U.S. 277, 285, 64 S.Ct. 134, 88 L.Ed. 48 (1943), quoted in part in United States v. Park, 421 U.S. 658, 669-70, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975).
. See United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113 (1972).
. While not strictly congruent with the law underlying the instructions later given to the jury it did not involve the judge in an affirmative mis-statement of the law. The extra latitude in terms of what may be presented to the jury mayobe viewed as a historic resonance in practice from the days when juries had the power to set punishment as well as to convict, and evidence was admissible at trial in mitigation of punishment. Williams, Criminal Law supra at 291.
. I am well aware that there are differences between probation and acquittal — the judgment of leniency being made by a judge and not a jury and a felony conviction having possible collateral effects in such matters as voting and employment. But if the situation does not prompt a failure to prosecute, the possibility of suspension of imposition of sentence and probation remains an important amelioration that avoids a breach in the law’s resolution of interests.
. Establishment and vindication of the law need not be accomplished by a heavy penalty. See, e. g., Hall and Seligman, supra at 650; Note, Political Offenders, supra at 828-832.
*973Moreover, the trial judge took account of sentence served for the Watergate break-in. (Sentencing Tr. p. 10). It is not uncommon for trial judges to provide for concurrent service of sentence on unrelated crimes; here, the confinement on the prior sentence had already terminated.