Former FBI Special Agent in Charge Joseph H. Trimbach on "The Wiretap That Wasn't"

"I walked out of the courtroom the same way I walked in; with clean hands and a clear conscience."--Former FBI SAC Joseph H. Trimbach (American Indian Mafia p. 224)

When the American Indian Movement terrorists took the Indian village of Wounded Knee hostage in February 1973, they communicated with the FBI negotiators on a party line.

In his book American Indian Mafia, the former Minneapolis Special Agent in Charge, Joseph Trimbach, explains how the terrorists' lawyers tried to exploit this circumstance to claim that the FBI was violating the defendants' constitutional rights.

In a section on pages 215-224 called "The Wiretap that Wasn't," Joe Trimbach explains how the trial "turn[ed] away from deliberation of crimes committed by two ex-convicts to continual allegations of abuses by government agents bent on depriving the defendants [of] their constitutional rights" (215).

Mr. Trimbach explains that the terrorists cut the people's phone lines to keep them from calling for help:

"On the night of the village assault, Agnes Gildersleeve [an elderly Indian who owned the village Trading Post] used her telephone to call the reservation police. When the militants broke into her neighbors' homes, they cut the lines to prevent anyone else from calling for help. Later, phone service was restored to two Trading Post phones as a means to facilitate negotiations. I used that connection and the phone at the Command Post to communicate with the militants during the first few days of the takeover. We had a second phone at RB 1 [Road Block 1] for the same purpose. It was common knowledge that these phones shared a common line, a party line to enable all parties to be in negotiations, and in the early going, receive demands from the hostage takers" (215).

Mr. Trimbach quotes the testimony of AIMster Clyde Bellecourt to show that the hostage takers were aware that the telephones they were using at Wounded Knee were party lines (215-216).

Assistant U.S. attorney Richard D. Hurd argued in court for the prosecution that "the defendants had no right to expect privacy because the government had installed the phone line and was paying for it" (216). Trimbach explains that Mr. Hurd also explained that "the people using the phones were tresspassing invaders, who could not expect to freely exchange in further criminal acts, such as placing long distance calls for weapons and supplies, without law enforcement intervention" (216). Mr. Trimbach comments on the remarkable fact that Judge Fred Nichol, who had sided with the defense, didn't accept this argument.

On about the 5th day of the takeover, two FBI agents listened on the party line and heard someone "talking about leaving booby traps and explosives in the village to discourage an assault...The Agents followed proper proceedure by drafting memos of what they had heard and when they had heard it...Aside from the useful intelligence gathered about the booby traps, a piece of knowledge that saved the life of at least one Special Agent, I attached little significance to the memos" (216).

A year later, while talking to the judge in his chambers, Agent Trimbach assured the Judge Fred Nichol that the evidence for the Wounded Knee trial had been obtained "without the use of wiretaps of any kind." Trimbach writes that he was not thinking about these memos about the booby traps that his Agents had learned of on the party line.

AIMster lawyer Mark Lane, from whose car trunk the FBI had removed materials that could have been used to make molotov cocktails, testified disingenuously that he did not know that he was using a party line while he "engaged in privileged communications with clients in Wounded Knee" (217).

Mr. Trimbach wonders why the court didn't question why Mark Lane would need to talk in confidence on a telephone to his clients moments before entering the village where he would be able to speak privately in person with his clients.

When Mark Lane questioned Agent Trimbach in court about his discussion in Judge Nichol's chambers to the effect that the FBI had not monitored the telephone in Wounded Knee, Trimbach testified:

"I was not trying to convey the impression because I was not, at the time I made the comment to the Judge, even aware of, or I had forgotten about the extension phone that existed there, so I cannot say that that was going around in my mind when I responded to the Judge's question, or volunteered that information, however it came about. This was not even in my mind at the time I was in the Judge's office" (218).

Mr. Trimbach comments that even Judge Fred Nichol "could not honestly refute anything I said on the witness stand or in his chambers. I believe he sensed I had been completely earnest with him...my ill-advised visit [to his chambers] made it more difficult for him to demonize me" (218).

Mr. Trimbach reports that the main topic during the second round of cross examination was the Title III affidavit that had been requested by U.S. Attorney William Clayton after an airplane landed in the village and resupplied the AIMsters holding the town hostage (218-219).

Mr. Trimbach reports:

"This particular memo, with the knowledge and consent of all three government attorneys, made its way to the Justice Department, where it died a certain death in [President Richard Nixon's] scandal plagued Washington. But like the other memos, a paper trail was enough to feed the conspiracy monster once again. The fact that I had no recollection of approving this request, as I surely must have...was not helpful" (219).

Mr. Trimbach explains:

[Defense attorney Mark] Lane was intent on exploring the history of wiretaps, in an attempt to get me on record as a government agent manifestly well-versed in spying on innocent civilians. I am sure he was disappointed to discover I was not conversant with the extensive approval process required to authorize a wiretap...The answer I gave was truthful, but again my choice of words was less than stellar" (219).

Mr. Trimbach testified in court that he had never seen a "general proceedure" wiretap affidavit, and explains in his book that he was referring to a "full blown Title III wiretap application---the kind I had never seen before---not to the preliminary memorandum and transmittal letter" from one of his Agents. He comments that "the judge's interruption (of which there were several), helped clarify the question as referring back to a Title III affidavit, not the preliminary request" (219-220).

Mr. Trimbach writes:

"This was the only time I misspoke on the witness stand, if you can call it that. According to the defense, I had just committed perjury. I supposedly told a big whopper about not remembering the affidavit that I later acknowledged having authorized. But when I said I had never seen a "general proceedure' wiretap affidavit, I was referring to a full blown Title III wiretap application---the kind I had never seen before---not to the preliminary memorandum and transmittal letter from one of my Agents" (219-220).

Mr. Trimbach explains a few pages later that there was no "effort to hide evidence of a so-called wiretap, as [defense attorney William Kunstler] alleged. Had there been a real wiretap, we would have used special equipment---telephones are for amateurs---for the specific purpose of gathering evidence against the perpetrators. A few monitorings on a common phone line in the midst of a life-and-death situation could hardly constitute a violation of the perpetrator's rights. Moreover, our 'wiretap' involved no wire and no taps. There was no attempt to conceal the telephone at RB1 [Road Block 1]. There was no electronic surveillance, no bugging equipment, no recording equipment, no recording equipment, no Nixonian tapes, none of the things Kunstler was sure we were trying to hide" (221).

...Had Judge [Fred] Nichol truly believed that I had lied in his courtroom, I am quite sure he would have held me in contempt, just as he had threatened. And if I had committed perjury, he might have been justified in doing so. This was a man who would have enjoyed savaging my reputation in front of an approving defense team (223).

..."Much to the disappointment of the defense, this was not how it played out. When it came time to issue his final ruling on the wiretap controversy, Nichol could not convince himself that I had deceived him...I walked out of the courtroom the same way I walked in; with clean hands and a clear conscience" (224).

Mr. Trimbach concludes:

"Despite my success in avoiding jail time, none of Nichol's judicial conclusions prevented certain authors from claiming I lied under oath. Today, my name and the word 'perjury' are often found juxtaposed in accounts promoted by people who would not know the truth if it fell in their laps. For them, accusations from a small group of radical lawyers are sufficient justification for libelous bilge...I take solace in knowing the allegations come from otherwise unremarkable ideologues. In the fullness of time, truth wins out" (224).