Washington never ceases to amuse. Sen. Patrick Leahy (D., Vt.), himself no stranger to leaking, is furious that Democrat staff memos on politicizing judicial confirmations were read and disclosed. The fact that Republicans (including myself) read Democrats’ documents on an open server to which they had an affirmative grant of access does not stop his histrionics.
Just as amusing, the Washington Post ran two recent editorials indignant that Republicans had read and leaked the Democratic memos. But where was the media sanctimony when, during the Clarence Thomas nomination battle, the Post took illegal possession of the Anita Hill documents, or in other cases of unethical conduct that have embarrassed Republicans?
Unlike the Democratic judiciary memos, the Anita Hill documents were “classified”; their disclosure was a crime. In contrast, the Democratic memos currently under discussion were neither “classified” nor “confidential” under the Senate’s own rules. In addition, functionally, the computer server literally “served” them to Republican staffers; no hacking, no stealing.
In fact, the Code of Ethics for Government Service states that it is a government employee’s duty to “expose corruption wherever discovered.” This is a whistleblower provision that eliminates any doubt as to the ethical obligations of Senate employees who read documentation of wrongdoing. How would corruption be otherwise discovered?
Do government wrongdoers usually call in their staff to witness or proofread their wrongdoing? Of course not. Corruption will always be discovered through the inadvertence of the wrongdoer. Congress has given every government employee free agency.
Democrats need to be reminded of other things in this “Memogate-less” scandal as well, and the first GOP senator who does will be due wide applause. First, Democrats should get a refresher course in the doctrine of unclean hands–that even an aggrieved party should “not be heard to complain” if their own hands are dirty. This principle would be well applied by Republicans to the political kabuki dance that we call the Senate Judiciary Committee. It will take one GOP senator to remind the American people, in a loud voice, of the stream of indignities and abuses that Democrats have introduced into the confirmation process.
This includes heinous acts, such as painting Charles Pickering as a racist and blocking Miguel Estrada because, as one Democrat memo put it, “he is Latino,” as well as the abuse of the Constitution itself through the misuse of the filibuster to prevent honest up or down votes.
Next, Democrats need to stop carping about their invidious documents. Most children come to understand shame at an early age. Rather than showing embarrassment, Senate Democrats seem fixated on taking down the names of everyone who might have seen them with their pants down.
As for Republicans, they need to read Senate Rule 29.5 and its legislative history. That rule says what is okay to leak to the Post and what is not. It was expanded after Democrats unlawfully leaked the Anita Hill documents. Former Democratic Majority Leader George Mitchell laid out its limited purpose “to protect the privacy and other interests of individuals and organizations who provide information or are the subject of inquiry.” Mitchell defined “confidential” as “information received in closed session, information obtained in the confidential phases of investigations, and classified national security information.” The rule’s expansion did not protect confidences of individual senators, or the party caucuses.
In short, the Senate protects official business, but not the illicit activity that the Democrat memos display. Such partisan collusion is not the official business of the United States Senate and is therefore not protected.
Democrats think so too. In late 2001, Sen. Ted Kennedy’s (D., Mass.) counsel got hold of a Republican strategy memo. She promptly distributed it, and then denied doing so. Her colleagues leaked it to newspapers. She then wrote talking points for Kennedy saying: “There was no impropriety, as the information [distributed] was not confidential or privileged.” Similarly, in January, Beryl Howell, former counsel to Senator Leahy, told the Boston Globe that it was probably true that the disclosed memos were not “confidential” under Senate rules.
So why the fuss over the leaking of the Democrats’ documents? Given the legal access, the only mistake Republican staffers made when discovering the judiciary documents was not making copies and holding a press conference. No law can protect evidence of wrongdoing. Senators cannot protect themselves from the scrutiny of the American people. A recent Supreme Court ruling suggests that each document claimed to be private might need separate examination and be weighed against the public interest in its disclosure.
Senator Mitchell said it best in 1992 when adopting the Senate’s confidentiality rule. It is, he said, “the fundamental policy of the Senate to favor openness and public access to information.”
If they can’t be shamed, Democrats should at least quit complaining, lest the American people suspect that politicians who protest so bitterly about having their documents read are people with something to hide.
Actually, it’s too late.
Manuel Miranda is former counsel to Senate Majority Leader Bill Frist and Judiciary Committee Chairman Orrin Hatch.