Politics & Policy

Confidential or Criminal?

It's the content of the documents that counts.

Leaking is a way of life in Washington. It could perhaps be said that leaking is the fuel that keeps the city running. Everyone in public life, myself included, has been embarrassed by leaks put out by people who disagree with policy or who otherwise want to blow a whistle. Leaks are rarely investigated, because if they were the activities of both the government and the Washington Post–provided Republicans are embarrassed–would grind to a halt. And because few leaks are actually prohibited by law.

The very rare exception–such as the leak of Valerie Plame’s CIA employment–arises when a leak compromises national security, endangers sources and methods, or puts an undercover career at risk in violation of a law. The key is the harm done by the substance of the leak and whether, with that in mind, the information should be kept from the American people.

It was reported last week that the “Memogate” case was assigned for review by a special counsel. Were it not for politicians’ egos (of both parties), the question as to whether it was criminal to review Democratic documents discovered on a shared Senate server would never have gone so far. But the news broke by the Wall Street Journal on Friday came as shocker to Democrats and even to the staff of Senator Hatch. The WSJ discovered that the investigation will also focus on alleged improprieties evidenced in the Senate documents. This begins to turn things right side up.

Memogate involves the allegation that a Senate computer was improperly accessed to obtain Democratic documents describing improprieties in the Senate obstruction of federal judicial nominations. The allegation isn’t true: Authorized users discovered Democratic documents on an open server. Cyber-security expert Ira Winkler, himself a Democrat, has written that this isn’t Memogate, it’s “Memo-gateless.” The Democrat memos, he concluded, were discovered as if left “in the Capitol rotunda.”

Of course, the press coverage of Memogate has focused on the manner in which these embarrassing documents were discovered and paid almost no attention to their substance. The Washington Post ran their flagship story on a Saturday two days after New Year’s Day, when the entire city was in recess.

But it is impossible to determine whether the material leaked is protected as privileged or confidential without examining what it is. If, for example and at one extreme, the documents revealed conclusive evidence of a bribe, no one would argue that self-serving rhetoric about computer access would trump investigating a potential criminal violation. At the other extreme, no one would argue that it’s permissible to publish a classified FBI file on a nominee even if left on top of a watercooler.

Counsel to Senator Ted Kennedy (D., Mass.) would seem to agree with this approach–at least she did in late 2001. She found herself in possession of a Republican strategy memo very similar to the memos involved in “Memogate” and distributed it, with the predictable result that it was picked up by the media. Her talking points for the Senator said, “There was no impropriety, as the information was not confidential or privileged.” More recently, in January of this year, a former counsel to Senator Leahy (D., Vt.) told the Boston Globe that it was probably true that the memos were not confidential under Senate Rules.

The applicable Senate rule is 29.5, which protects the “confidential business or proceedings of the Senate….” It was expanded after the release of Anita Hill’s classified FBI materials in the Clarence Thomas nomination, which itself precipitated no criminal probe or sanctions. At the time of the change, Senate Majority Leader Mitchell defined “confidential” for the Senate as “information received in closed session, information obtained in the confidential phases of investigations, and classified national security information.” Otherwise, said Senator Mitchell, “It is the fundamental policy of the Senate to favor openness and public access to information.”

How do these rules apply to Memogate? One of the memos has outside groups persuading Democrats that Miguel Estrada “is especially dangerous because …he is Latino,” and, it was suspected, could rise to the Supreme Court. What is the public interest in protecting lobbying of this nature, and thus encouraging more of it in the future? Other memos document how trial lawyers, one of the Democrats’ largest sources of funds, influenced the elevation of a District Court judge to the Court of Appeals. In a time of debate over ever-stricter campaign-finance laws, what is privileged about such considerations?

In such cases there is always a balancing involved between the public’s right to know who is influencing Congress and Congress’s right to candid advice. The FBI relies on confidentiality to obtain candid views on a nominee’s fitness and character. And individual senators, no less than the president, have a right to candid advice from staff. But outside lobbyists present a different picture. If the result of disclosure is to inhibit lobbying with discriminatory overtones and secret special-interest pleading by powerful interest groups, it is difficult to see how the public interest is harmed in any way–and very easy to see how it is helped.

None of this is to say that that there is no place for confidentiality of documents. Vice President Cheney is making that case in the Supreme Court presently, though Democrats seem to think that only they deserve confidentiality. They did not give Miguel Estrada’s Justice Department memos the same respect they now demand for themselves. But as the legislative history of the Senate’s own confidentiality rule illustrates, confidentiality balances against the public’s interest in open access to political information.

The Supreme Court appears to agree with the Senate that confidentiality should not be assumed. The high court has ruled, on First Amendment grounds, in a case involving the disclosure of an illegally intercepted cell-phone call, that “privacy concerns give way when balanced against the interest in publishing matters of public importance.” The Court noted that in deciding the Pentagon Papers case 30 years ago, “the attention of every Member of this Court was focused on the character of the stolen documents’ contents and the consequences of public disclosure. Although the undisputed fact that the newspaper intended to publish information obtained from stolen documents was noted in Justice Harlan’s dissent…, neither the majority nor the dissenters placed any weight on that fact.”

Unlike the Anita Hill or Pentagon Paper disclosures, Memogate is about documents that are neither confidential nor stolen, no matter what politicians say. Of course, politicians who complain so bitterly about the disclosure of their documents may simply have something to hide.

Manuel A. Miranda is former counsel to Senate Majority Leader Bill Frist and Judiciary Committee Chairman Orrin Hatch.

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