Memogate.

The law, lawyers, and the court.
Feb. 19 2004 5:35 PM

Memogate

The Judiciary Committee computer scandal is one gnarly sausage.

Illustration by Nina Frenkel

Members of the Senate Judiciary Committee are holding their breath this week as they await a final report in "Memogate," the dust-up over Senate Democrats' strategy documents lifted by GOP staffers from a shared computer server. The documents were internal memos laying out tactics and objections to President Bush's judicial nominees. Mostly, the committee has evinced bipartisan disgust at the act of downloading, studying, and then leaking these memos to the Wall Street Journal and the Washington Times last November. But Senate Judiciary Chairman Orrin Hatch, who launched the wide-ranging investigation, and GOP senators on the committee are being pummeled by conservative groups for letting their disgust at the way the memos were obtained override their obligation to behave like hysterical drama queens about their contents. Democrats on the committee have stepped into the drama-queen breach, demanding firings and criminal prosecutions over an incident Sen. Ted Kennedy has likened to Watergate.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

While there's been loads of screeching and finger-pointing, even in advance of knowing what actually happened, it's not yet certain that what either side did was illegal. What is clear is that the Lord of the Flies atmosphere surrounding the Judiciary Committee—in which outrageous pressure is placed on members of both sides to vote for purely ideological reasons—has spawned a Lord of the Flies culture in which any staffer can justify virtually any conduct to advance the cause. And while it takes some gall to justify this one, someone out there is always willing to try.

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Did GOP staffers commit a crime in stealing these memos? It's impossible to know for sure, until Senate Sergeant at Arms William Pickle submits his final report to the committee next week. Until then we can certainly speculate—and many have—about whether capitalizing on a "glitch" (allegedly the staffers obtained the Democrats' documents by clicking on the "My Network Places" icon on a shared committee computer server) constitutes illegal hacking. Relevant federal laws include 18 U.S.C. Section 1,030 (prohibiting one from exceeding authorized access to a computer and defining that as using authorized access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter); 18 U.S.C. Section 641 (making it illegal to "embezzle, steal, purloin, or knowingly convert to his use or the use of another," the property of any government agency); and Senate Rule 29.5, prohibiting the disclosure of "secrets" or "confidential business or proceedings of the Senate." Senate Democrats last week also raised the possibility that if these documents were used to prepare nominees for questioning, charges of "suborning testimony" could be filed.

All that sounds pretty bad for the staffers, if it turns out there was hacking and it was intentional, which, I repeat, is not yet known. But some conservative groups claim that no crime occurred; that what the staffers did is more akin to glimpsing documents carelessly left on opposing counsel's desk. This defense weakened a little last week when Pickle privately briefed members of the committee, telling them the pilfering had gone on longer than previously believed—two years—and involved over 5,000 documents. Based on what was said in that briefing, some GOP senators have told conservative groups to lay off Hatch for a while. But many groups remain furious at Hatch, the investigation, and the near dismissal of the Democrats' far-more-serious crimes.

There are thus two main defenses to the charges: that it's not a crime, and that the Democrats' crime is worse. The latter rarely prevails at law, so let's start with the first. One of the two former GOP staffers who have been implicated (the other remains unnamed) is Manuel Miranda, formerly a lawyer for the committee, who left his job as a counsel to Senate Majority Leader Bill Frist this month over the dispute. Miranda cheerfully admits to having read the memos, denies leaking them, but argues with great force that there is no expectation of privacy on a shared government computer; that Democrats had been warned of the glitch and did nothing to address it; and that in his view of the legal and ethical rules, "the duty falls on the other party to protect their documents." Strip away all the law-words here, and Miranda seems suspiciously of the opinion that if you don't lock your office door and fellow staffers come along and empty your filing cabinet, well, tough luck for you. Even more troubling, Miranda told the Associated Press last week: "I had an obligation to learn everything possible I could learn to defend my clients." Apparently his legal ethics actually compelled him to review thousands of pages of opposing research.

Which leads us to conservative groups attempting to mount that second defense: that this alleged theft distracts from the real criminality here—the conduct of committee Democrats. So, what about the Democrats' crimes—as revealed by the memos themselves? Paul Weyrich, of the Free Congress Foundation, is quoted in the National Review Online as saying that, had the situation been reversed, and Democrats found the memos, "a special prosecutor would be hired by now." Weyrich is one of 20-some lobbyists who signed a letter to the Public Integrity Section of the Justice Department on Feb. 10, demanding a criminal investigation into the contents of the memos. Miranda has himself filed a complaint with the Senate Ethics Committee seeking an investigation based on the memos, charging that the rest of the stolen memos show "evidence of the direct influencing of the Senate's advice and consent role by the promise of campaign funding and election support." Miranda seems almost eager for the big lawsuit over the memos to unfold, since the contents of all the memos would then be disclosed. "Such a prosecution would make for the most exciting discovery process in Washington history," he told the WashingtonTimes last week.

So, if we can torture the law to make reading and disseminating private strategy memos perfectly permissible, might we also use it to jail Ted Kennedy and Dick Durban? Based on the memos we've seen thus far, have Democratic senators or staffers broken actual laws in strategizing about Bush nominees? Here, as laid out in full detail on the Coalition for a Fair Judiciary's Web site are the Democrats' most egregious sins:

  1. One memo refers to (the now withdrawn) Bush nominee Miguel Estrada as "especially dangerous because he is … Latino." The Coalition for a Fair Judiciary claims, apoplectically, that this gives Estrada a "prima facie Title VII claim." Presumably under this analysis, every statement ever made about race is actionable. Estrada is Hispanic. And the fact that he was a strategically important nominee because of his race was highlighted in virtually every newspaper article or editorial written about him for months. Is it an act of racism to point out that appointing a Latino to a federal appeals court would give Bush traction with Latino voters? Or is it the sort of thing politicians, journalists, and even Latino lobby groups think and talk about every day? A world where a nominee's race is immaterial would certainly be a nicer place. But not residing in that world is not yet a criminal offense.
  2. Another document claims that "most of Bush's nominees are nazis." This sort of rhetoric is sophomoric and mean. It speaks volumes about the culture of ideology and loathing in judicial nomination battles. But is it a crime or an ethics violation? Please. Does anyone believe private communications among Republicans are limited to warm compliments and generous praise? The president called a New York Times reporter a "major league asshole." This, tragically, is how we talk about each other now.
  3. The memo that has garnered the most attention reveals that Elaine Jones, then-president of the NAACP Legal Defense Fund, spoke with Kennedy staff to request that the vote on Judge Julia Gibbons' nomination to the 6th Circuit Court of Appeals be delayed until after that court decided the affirmative action cases out of Michigan, which they eventually did, by a 5-4 vote. This looks a bit like an attempt by an interested party to influence a tribunal, and Jones has been named in an ethics complaint before the Virginia bar for it. But does the internal discussion in the memo—noting the request, addressing its propriety, and suggesting that it might be honored—constitute evidence of a committee member somehow colluding to tamper with a tribunal? Not at all. Fair-minded conservatives acknowledge that the allegation itself may not be true, that it's unverifiable, and that it isn't the sort of tampering contemplated by the law. There may be unseemliness here, but no crime.
  4. Similarly, Fox News reports that an unreleased memo shows Sen. John Edwards asking Sen. Patrick Leahy to stall the vote on another nominee to protect campaign contributions. And while federal law bars senators from taking gifts, money, or promises of support in direct exchange for votes, there is just no evidence of any such direct swaps in the memos thus far. Miranda promises lots of this in other memos. I guess we will decide if and when we see it.

Mostly, the memos reveal the same depressing delays and manipulations both sides have come to rely on in this fight. But the party line from the right seems to be that we should just ignore their misconduct and prosecute Democrats, because if you root through their private papers you may find some more misconduct. If any truer hypothesis has been advanced in political discourse, I can't think of it. "Serious transgressions are serious transgressions, no matter how they come to light," writes Quin Hillyer, in the National Review Online. As if the use of illegally obtained evidence lies at the cornerstone of our legal tradition.

Is it a bit ironic that the same Republicans now arguing that the details of Vice President Cheney's energy task force be kept private, in order to avoid chilling zealous policy discussions, are advocating the use of improperly obtained policy discussions to persecute Democrats?

The saddest part of this memo scandal isn't that it betrays the same tragic "they started it" finger-pointing that has made it all but impossible to confirm judges in America. The saddest part is that private documents taken and passed on without consent—and no matter what legal language you can chum up to defend it, that is what was done—have given all of us a Fear Factor-worthy glimpse at the squirming ugliness beneath the judicial confirmation fight. Those GOP staffers and the conservative groups who back them have led us into the sausage factory and hollered, "Ew. Sausage!" And unless you are 7, it strains credulity to argue that this virulent lobbying, pressure, and backroom deal-making goes on only among Democrats.

Nobody needed to swipe anything to prove to Americans how ugly the judge wars have become. Only the most naive among us could be shocked at the contents of the memos. But only the most cynical among us can defend the way they were procured.

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