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Thoughts on the MemoGate Scandal Report

Commentary by Greg Lewis /
March 16, 2004

On March 4, the report based on the results of Senate Sergeant-at-Arms William H. Pickle's investigation into the "theft" of Democratic documents from a computer hard drive by Republican Senate Judiciary Committee staff members was released. The report identified Jason Lundell, a nominations clerk, and Manuel Miranda, a senior aide to Senate Majority Leader Bill Frist (R, TN), both of whom served as Republican Judiciary Committee aides, as the people responsible for the unauthorized downloading of documents.

During 2002 and 2003, Lundell and Miranda accessed as many as 5,000 Democrat files, some containing damaging and highly incriminating evidence of illegal and unethical Democratic activities and tactics. The files in question included memos from Senators Edward Kennedy (D, MA) and Richard Durbin (D, IL) which detailed procedures for derailing the nominations of several Bush Administration judicial appointees by not letting their nominations come to the Senate floor for a vote. Particularly damning was one memo which cites among the reasons the nomination of Miguel Estrada was to be thwarted was that he was "Hispanic."

The MemoGate scandal broke on November 4, 2003, when one of the memos outlining Democrats' plans to politicize judicial nominations was leaked to radio talk show host Sean Hannity. MemoGate actually began in early 2002, when a Senate Judiciary Committee aide (whose name has not been disclosed) discovered that security on computers that were used by both Democrat and Republican Judiciary Committee staff and were thought to be "protected" was inadequate, and that staffers of either party could easily access the other party's files. The aide, who worked for Senator Charles Grassley (R, IA) and was said to have extensive experience in the area of computer security, disclosed the information in a signed affidavit.

Shortly thereafter, an aide to Senator Orrin Hatch (R, UT), chairman of the Senate Judiciary Committee, made the information about the accessibility of Democratic files available to an aide of Senator Patrick Leahy (D, VT), the ranking Democrat on the Senate Judiciary Committee. Leahy and his staff did nothing in response to the information, and the files in question remained unsecured.

Senator Leahy's history with regard to failing to protect confidential information goes back nearly 20 years, to 1986. It was in that year that he leaked classified information about a covert U.S. operation to overthrow the government of Libyan leader Moamar Gaddafi. Leahy's stated reason for leaking the information was that he (Leahy) thought the proposed operation was "the most ridiculous thing I had seen." The planned military operation, no longer a secret, was called off as a result of the publicity generated by Leahy's making classified information public.

In July, 1987, Leahy resigned from his post on the Senate Intelligence Committee after a six-month investigation into charges that he had compromised our nation's security by leaking classified documents. The investigation revealed that Leahy had also been caught in the act of allowing a network news reporter access to the Senate Intelligence Committee's confidential documents in 1986. It's hardly surprising that this is the same Patrick Leahy who did nothing to protect his Party's files when informed that they were easily accessible to members of the opposition.

The nasty ironies don't end with Leahy's suddenly reversing himself and taking the high road about "illegal" accessing of confidential information. Both Senator Kennedy and Senator Durbin, who authored several of the memos outlining how to prevent the Bush nominees from coming to the Senate floor for a vote, have in the past come out in favor of precisely the opposite policy. On September 28, 1998, Durbin read into the Congressional Record the following about Presidential judicial nominees: "If, after 150 days languishing on the Executive Calendar that name has not been called for a vote, it should be. Vote the person up or down." The Congressional Record of February 3, 1998, documents that Kennedy said the following about Federal judicial nominees: "If our . . . colleagues don't like them, vote against them. But give them a vote."

The investigation into MemoGate had been requested by Senator Orrin Hatch (R, UT) under pressure from Democrats, who insisted that the act of accessing files was potentially criminal. The fact that the accessed files contained sensitive memos which detailed Democratic strategies for delaying or preventing the confirmation hearings of several federal judicial nominees was conveniently not seen by Democrats to be either unethical or criminal, and they have thus far managed to divert attention from the documents themselves to how the documents were obtained.

The grounds for the investigation are highly questionable. In 1992, then-Senate Majority Leader George J. Mitchell (D, ME) read into the Congressional Record changes in the Senate disclosure rules which specified that material protected by those rules included only information relating to national security, investigations, and internal inquiries. All other information was to be shared freely in the spirit of "openness and public access to information." Those changes, which actually relaxed previous Senate disclosure rules, were made as a result of illegal and unethical Democratic disclosures in the Clarence Thomas hearings.

Proof of the malicious intent of the strategy outlined in Durbin's and Kennedy's memos came in January of this year, when Elaine Jones, President and Chief Counsel of the NAACP Legal Defense and Education Fund, unexpectedly announced her retirement. She did so after a complaint was filed against her with the Virginia Bar Association for her role in the MemoGate scandal. Documents released as a result of security lapses by the Leahy-led Democrats indicated that she sought to delay the confirmation hearing of a judge who might have been appointed to the 6th Circuit Court of Appeals until after a case in which she was a participating attorney was heard.

In February of this year, as a result of his role in MemoGate, Manuel Miranda resigned from his position on Frist's staff. In his resignation statement, Miranda said he was resigning so that he could "speak freely and seek to return the focus of the Democrat documents investigation where it should have stayed — on the substance of the Democrat documents themselves and the abuse of the public trust that they spell out." Miranda has also filed a complaint with the Senate Ethics Committee alleging that he has read "documents evidencing public corruption by elected officials and staff of the United States Senate" and urging the committee to open an investigation based on the content of the Democrat memos and not simply the means by which their existence became public.

The bottom line is that Patrick Leahy, an admitted flouter of the rules pertaining to national security, is leading the charge against Republicans for accessing documents to which they had the right of access under the Senate's Disclosure Policy. He's doing so in order to divert attention from (and thus cover up) the truly illegal and unethical activities of Senators Kennedy and Durbin. Manuel Miranda perhaps summed it up best when he released a statement the day after Pickle's report was made public: "The Senate has no power to protect such unethical conduct as the Democrat documents describe from the eyes of the American people."

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