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How Senator Rockefeller Can be Held Responsible for His Role in “MemoGate”
11-28-03

Posted on 11/28/2003 9:03:16 PM PST by jmstein7

How Senator Rockefeller Can be Held Responsible for His Role in “MemoGate”

A Research Outline of Legal Findings

 

    Hopefully, someone who is a member of the bar will read this and take the next step.  Below you will find that I have done a substantial portion of the legal research and theorizing necessary to hold Senator Rockefeller responsible for MemoGate.  This atrocity cannot be allowed to stand.  Note that I did not get into standing or justiciability, but I'm there is a way of finding imminent harm.  I mean, if enforcement of the Partial Birth Abortion Ban can be stayed within an hour of the legislation being signed into law, there must be a way of showing that this grave danger to public safety and welfare is sufficient imminent harm.  If you are unfamiliar with the memo, go to www.intelmemo.com

 

  1. How Senator Rockefeller is liable
    1. An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment.  Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 756 (1998).

                                    Writing memos to a Senator or his/her (implicitly or explicitly) partisan staff is certainly within the “scope of employment” of a congressional staffer.

                                    Therefore, whether Rockefeller or one of his staffers wrote the memo in question is irrelevant.  Either way, Senator Rockefeller is liable for the memo.

                                    However, it has been held that a corporate employee, e.g., typically acts on behalf of the corporation, not its owner or officer.  Meyer v. Holley, 537 U.S. 280, 286 (2003).

Unlike a corporation, Congress operates in a partisan fashion.

In a corporation, every employee is employed by the whole of the corporation for the benefit of the whole of the corporation.

 In Congress, staffers (employees) work for one party or another, either explicitly or implicitly – e.g. a “non-partisan” staff member drafting a clearly partisan memo intended to advantage one party at the expense of the other is implicitly partisan.

Thus, Congress is not like a corporation for the purposes of respondeat superior.  To wit, Congress is like two corporations in direct competition.

Therefore, a Senator (and/or his/her respective party), must be responsible for the actions of staffers owing their partisan allegiance (implicitly or explicitly) to that Senator.  

                                    Thus, Senator Rockefeller is either directly liable for the memo or vicariously liable for the memo. 

    1. Federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities.  Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998).

                                                        This memo is not part of any legislative activities of the Senate Intelligence Committee; construing the memo in the most favorable light, it is, at best, part of investigative activities.

                            Therefore, Senator Rockefeller is not entitled to absolute immunity under this doctrine.

    1. The rule is well settled, that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct.  Amy v. Supervisors, 11 Wall. 136, 138 (1871), cited with approval in Bogan, at 51-52

                                    Here, the duty in question is the duty of a Senator to act within the Senate Rules of Ethics; ergo, there is no discretional element, i.e. a Senator may not choose to not follow the rules of ethics.

Senate employees are compensated from funds of the Treasury for regular performance of official duties. They are not paid to do campaign work. In the words of the United States District Court for the District of Columbia: ‘‘It is clear from the record that Congress has recognized the basic principle that government funds should not be spent to help incumbents gain reelection.’’ Senate Ethics Manual, Chapter 6: Political Activity, p.139 (2003), available at http://ethics.senate.gov/downloads/pdffiles/manual.pdf. 

 The drafting of this memo, a direct effort to help Democrats get elected and reelected, is a clear violation, inter alia, of the above rule of ethics.

 Therefore, by drafting this memo, Senator Rockefeller has violated the Senate Rules of Ethics and he is liable “to the extent of the injury arising from his conduct.” 

                                    A Senator on the Select Committee on Intelligence has a ministerial duty to follow the rules of that committee. 

No member of the Committee or of the Committee staff shall disclose . . . to any person not a member of the Committee . . . the contents of any papers or materials or other information received by the Committee . . . . Failure to abide by this provision shall constitute grounds for referral to the Select Committee on Ethics pursuant to Section 8 of S. Res. 400.  Rules of the Select Committee on Intelligence, Rule 9.6 (2001), available at http://www.access.gpo.gov/congress/senate/srules23.txt.

The memo itself states, “we can verbally mention some of the intriguing leads we are pursuing.”

 That is a direct violation of Rule 9.6

Therefore, in drafting this memo, Senator Rockefeller his impermissibly, and unethically, advocated a violation of the committee rules.

As Senator Rockefeller has a ministerial duty to comply with the committee rules, he is liable “to the extent of the injury arising from his conduct.”

    1. Thus, Senator Rockefeller is either directly or vicariously liable for the drafting of the memo to the extent of injury arising from his unethical conduct. 
  1. The whistleblower (leaker), if any, is protected by the First Amendment
    1. Speech which discloses any evidence of corruption, impropriety or other malfeasance on the part of [elected officials], in terms of content, clearly concerns “matters of public import”.  Pandolfi de Rinaldis v. Varela Llavona, 62 F. Supp. 2d 426, 436 n.18 (D.C. P.R. 1999), citing, e.g., Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988); Breuer v. Hart, 909 F.2d 1035, 1038 (7th Cir. 1990); Brawner v. City of Richardson, 855 F.2d 187, 191-92 (5th Cir. 1988).
    2. Abuse of public office is a matter traditionally occupying "the highest rung of the hierarchy of First Amendment values." Connick v. Myers, 461 U.S. 138, 145 (1983).
    3. The public has a significant interest in encouraging legitimate whistleblowing so that it may receive and evaluate information concerning the alleged abuses of these public officials.  O'Donnell v. Yanchulis, 875 F.2d 1059, 1062 (3d Cir. 1989).
    4. Therefore, the leaker/whistleblower’s First Amendment right to freely speak about Senator Rockefeller’s abuse of office – by making the memo public – can be clearly established.
  2. Available Remedy (what can be done) – Mandamus
    1. A Writ of Mandamus is an order compelling a public official to perform his duty
    2. There are two essential conditions for the issuance of such a writ

                                The party seeking issuance of the writ has no other adequate means to attain the relief he desires.  Kerr v. United States Dist. Court for Northern Dist., 426 U.S. 394, 403 (1976).

The stated purpose of the Select Committee on Intelligence is “to assure that the appropriate departments and agencies of the United States provide informed and timely intelligence necessary for the executive and legislative branches to make sound decisions affecting the security and vital interests of the Nation.”

The Select Committee on Intelligence has the awesome responsibility of overseeing the “comprehensive program for the future security of the United States.”  See 50 U.S.C. § 401 et seq.

The memo reveals that Senator Rockefeller intended to use the resources of this committee to conduct political opposition research to benefit the electoral prospects of the Democrat Party. 

Such a diversion of resources for partisan gain impermissibly, and dangerously, reduces the manpower and resources being utilized to ensure the “future security of the United States.”

Thus, the activities proposed by Senator Rockefeller would recklessly create a public safety and welfare hazard (for partisan gain). 

United States citizens have no other means of avoiding this danger than by seeking a write of mandamus compelling the Senate Select Committee on Ethics to investigate Senator Rockefeller’s conduct and the circumstances surrounding the drafting of the memo. 

                                                                    The duty sought to be enforced must be clear and indisputable.  United States v. Duell, 172 U.S. 576, 582 (1899), cited with approval in Kerr, 426 U.S. at 403. 

Both the Senate Rules of Ethics (Chapter 6) and the Intelligence Committee Rules(9.6) clearly confer jurisdiction to investigate on the Ethics Committee and mandate investigation.

Thus, the duty of the Senate Ethics Committee to investigate is clear and indisputable. 

    1. Thus, an Article III Court should exercise its discretion and issue a writ of mandamus compelling the Senate Select Committee on Ethics to investigate Senator Rockefeller and the circumstances surrounding the memo.


TOPICS: Activism/Chapters; US: West Virginia
KEYWORDS: 2004memo; activism; jayrockefeller; memogate
Hopefully, one of you fully trained FReeper Lawyers can use this info and do what has to be done.
1 posted on 11/28/2003 9:03:17 PM PST by jmstein7
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To: MeeknMing
Need a major Meek-a-Bump!
2 posted on 11/28/2003 9:04:17 PM PST by jmstein7
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To: jmstein7; Howlin
Hey Howlin -- I think you'll want to see this.

Nice work, jm.

3 posted on 11/28/2003 9:09:21 PM PST by reformed_democrat
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To: jmstein7; hellinahandcart; NYC GOP Chick
This magnum opus plus $0.25 is gonna get me...

What exactly?

4 posted on 11/28/2003 9:10:38 PM PST by sauropod (I believe Tawana! Sharpton for Prez!)
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To: Judith Anne
ping
5 posted on 11/28/2003 9:13:27 PM PST by Pan_Yans Wife ("Your joy is your sorrow unmasked." --- GIBRAN)
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Comment #6 Removed by Moderator

To: jmstein7
Evening JM, we are doing a good job of getting out information, but if the Pubbies don't break a sweat over it, it'll be difficult to gain traction. Come ON senators - grow a backbone!
7 posted on 11/28/2003 9:29:11 PM PST by Libertina ("We're not establishing intimacy with these people, we want to crush them." Rush on rats.)
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To: jmstein7
Nice work. I'm still not done being angry, but it's not hot anger any more, it's cold. Rockefeller is a traitor. I will never ever forget that, I will tell everyone with whom I converse, and I will tell them why.

He is harming the country, willing to endanger our safety for political gain. I cannot forgive that.
8 posted on 11/28/2003 9:39:53 PM PST by Judith Anne (Send a message to the Democrat traitors--ROCKEFELLER MUST RESIGN!)
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To: Libertina
Cornyn and Graham, apparently, will be pushing the issue. But, here is a way to MAKE them do it :)
9 posted on 11/28/2003 9:54:53 PM PST by jmstein7
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To: Judith Anne
I'm particularly fond of the rebuttal of the "investigate the leaker" Dem talking point:

The whistleblower (leaker), if any, is protected by the First Amendment (which dems are so fond of -- unless it is used against them).

1. Speech which discloses any evidence of corruption, impropriety or other malfeasance on the part of [elected officials], in terms of content, clearly concerns “matters of public import”. Pandolfi de Rinaldis v. Varela Llavona, 62 F. Supp. 2d 426, 436 n.18 (D.C. P.R. 1999), citing, e.g., Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988); Breuer v. Hart, 909 F.2d 1035, 1038 (7th Cir. 1990); Brawner v. City of Richardson, 855 F.2d 187, 191-92 (5th Cir. 1988).
2. Abuse of public office is a matter traditionally occupying "the highest rung of the hierarchy of First Amendment values." Connick v. Myers, 461 U.S. 138, 145 (1983).
3. The public has a significant interest in encouraging legitimate whistleblowing so that it may receive and evaluate information concerning the alleged abuses of these public officials. O'Donnell v. Yanchulis, 875 F.2d 1059, 1062 (3d Cir. 1989).
4. Therefore, the leaker/whistleblower’s First Amendment right to freely speak about Senator Rockefeller’s abuse of office – by making the memo public – can be clearly established.
10 posted on 11/28/2003 10:22:24 PM PST by jmstein7
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To: FairOpinion; DoctorZIn; onyx; Tamsey; DoughtyOne; strela; PhiKapMom; nopardons; doodlelady; ...
BUMP!
11 posted on 11/28/2003 10:25:45 PM PST by jmstein7
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To: zip
PING
12 posted on 11/28/2003 10:29:02 PM PST by BOBWADE
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To: jmstein7
Bump :-)
13 posted on 11/28/2003 11:48:47 PM PST by Tamzee (Pennsylvanians for Bush! Join http://groups.yahoo.com/group/PA4BushCheney/)
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To: jmstein7
excellent! J-man, do you think it would be a good idea to email this to every republican senator and the attorney general?

CGVet58
14 posted on 11/29/2003 12:53:47 AM PST by CGVet58 (For my fellow Americans; my life... for our enemies; The Sword!!!)
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To: jmstein7
Senate Select Committee on Ethics
(members)</font color>

There are few on this committee who will tackle Senator Rockefeller, one in particular is Harry Reid. However, every one should write the committee or a member on that committee. I hold little hope of their doing anything about this as they historically protect their own – not the American People whom they are supposed to serve. But by sending a letter or calling their offices, if enough of us do it and ask friends and family to do the same, we may at least get their attention. . The leaders are George V. Voinovich, R - OH, Chairman and Harry Reid, D - NV, Vice Chair.
Thank you jmstein for your work – anyone can bring a lawsuit, but it is the job of the SEC to do what is right. Put their feet in the fire!

15 posted on 11/29/2003 4:28:55 AM PST by yoe (No to Mrs. Clinton ever entering the White House as president and NO to her sexual predator spouse –)
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To: jmstein7
GOP Senators should apply the "Gingrich" standards adopted by House Democrats. Newt was held accountable for a document prepared by his lawyer, which is all well and good. He was also assessed the costs of looking into things. He was also screamed at for attempting to borrow money to pay those costs. So now, JayBoy should be made to pony up.
16 posted on 11/29/2003 4:43:41 AM PST by laredo44
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To: jmstein7; Alamo-Girl; onyx; SpookBrat; Republican Wildcat; Howlin; dixiechick2000; SusanUSA; ...
How Senator Rockefeller Can be Held
Responsible for His Role in “MemoGate"

Any Legal Beagles out there ? ...


Please let me know if you want ON or OFF my General Interest ping list!. . .don't be shy.


17 posted on 11/29/2003 6:21:47 AM PST by MeekOneGOP (George Soros "MINOB": http://richard.meek.home.comcast.net/SorosRatsA.JPG)
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To: jmstein7
There ya go ! A pingaroo!

Good work. I hope this can be pursued and justice done.
Not holding my breath - though I'd be elated if it IS !


18 posted on 11/29/2003 6:25:23 AM PST by MeekOneGOP (George Soros "MINOB": http://richard.meek.home.comcast.net/SorosRatsA.JPG)
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To: MeeknMing
Any Legal Beagles out there ?

I wish I were, but I'm only more like a Bloodhound. Need some sleuthing done?

Rockefeller is anti-American, and is working actively for some other entity, IMHO.

19 posted on 11/29/2003 6:26:35 AM PST by thesummerwind (one more day like yesterday, please)
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To: reformed_democrat
Thanks!
20 posted on 11/29/2003 7:32:16 AM PST by jmstein7
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To: jmstein7
We need to keep pounding on this Rockadude until he cracks!!
21 posted on 11/29/2003 7:39:07 AM PST by international american
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To: MeeknMing
Yup. We need some BARRED legal eagles to get creative and think outside the box.

Most plain vanilla lawyers will complain that it is difficult to find standing and justiciability here. First, plaintiff class is, obviously, HUGE. However, I'd point out that there is no encroachment amongst the political branches here; an ordinary citizen cannot be left powerless, without remedy, when a public official endangers the public safety and welfare and his peers in the legislative branch will not hold him accountable.

In Baker v. Carr, the rights at stake were important to give rise to a cause of action for any constitutent who thought his vote was being diluted. Here, the danger (imminent harm) is far greater than "vote dilution", and the remedy, if granted, will certainly resolve the problem. Further, the problem cannot be solved through lobbying and legislation because the issue is not a legislative issue -- it is an issue of "abuse of public office".
22 posted on 11/29/2003 7:43:30 AM PST by jmstein7
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Comment #23 Removed by Moderator

To: aprile_showers; BlackbirdSST; cisse morgan; ConservaChick; countrydummy; EternalVigilance; ...
Bookmarking WV BUMPS!! Excellent Work.
24 posted on 11/29/2003 7:56:01 AM PST by Xthe17th (http://groups.yahoo.com/group/repeal17)
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To: jmstein7
email em Jim ,Lindsey is open to unsights
25 posted on 11/29/2003 7:58:15 AM PST by cars for sale
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To: jmstein7
Bttt!
26 posted on 11/29/2003 8:03:15 AM PST by Chad Fairbanks (Of course there's more to Science than just hurting animals, but frankly its the part I like best.)
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To: Chad Fairbanks
Told you I'd be workin' on it :)
27 posted on 11/29/2003 8:07:59 AM PST by jmstein7
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To: jmstein7
My only question on all of this is -

If you get Jay Rockafeller kicked off, you know darn well he would be replaced by Hilary Clinton. Who would you rather have? A wounded head hung Rockafeller or the hildebeast?
28 posted on 11/29/2003 8:16:35 AM PST by ODDITHER
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To: ODDITHER
There's no way - she doesn't come close to having the seniority to be on that committee. I can't see that happening...
29 posted on 11/29/2003 8:21:37 AM PST by Chad Fairbanks (Of course there's more to Science than just hurting animals, but frankly its the part I like best.)
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To: ODDITHER
I don't think she could be. The rules of that committee's membersip are strict:

Sec. 2. (a)(1) There is hereby established a select
committee to be known as the Select Committee on Intelligence
(hereinafter in this resolution referred to as the ``select
committee''). The select committee shall be composed of
fifteen members appointed as follows:
(A) two members from the Committee on Appropriations;
(B) two members from the Committee on Armed Services;
(C) two members from the Committee on Foreign Relations;
(D) two members from the Committee on the Judiciary; and
(E) seven members to be appointed from the Senate at large.

I'm not sure she could be ON the committee, let alone ranking Dem.

More:

Sec. 2(a)(2)
Members appointed from each committee named in clauses
(A) through (D) of paragraph (1) shall be evenly divided
between the two major political parties and shall be
appointed by the President pro tempore of the Senate upon the
recommendations of the majority and minority leaders of the
Senate. Four of the members appointed under clause (E) of
paragraph (1) shall be appointed by the President pro tempore
of the Senate upon the recommendation of the majority leader
of the Senate and three shall be appointed by the President
pro tempore of the Senate upon the recommendation of the
minority leader of the Senate.
30 posted on 11/29/2003 8:24:05 AM PST by jmstein7
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To: thesummerwind
Rockefeller is anti-American, and is working actively for some other entity, IMHO.

Do the names CFR, Tri-Lateral Commission and Bilderbergers ring a bell?

31 posted on 11/29/2003 8:38:07 AM PST by Don Corleone
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To: thesummerwind; jmstein7
I wish I were, but I'm only more like a Bloodhound. Need some sleuthing done?

Well, maybe. I don't know.

jmstein7 ?? ..


32 posted on 11/29/2003 8:50:34 AM PST by MeekOneGOP (George Soros "MINOB": http://richard.meek.home.comcast.net/SorosRatsA.JPG)
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To: thesummerwind
thesummerwind
Since Nov 27, 2003

Welcome to FreeRepublic.com, btw !! ...


33 posted on 11/29/2003 8:51:51 AM PST by MeekOneGOP (George Soros "MINOB": http://richard.meek.home.comcast.net/SorosRatsA.JPG)
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To: MeeknMing; mhking; PhiKapMom; Ragtime Cowgirl; windchime; Joe Brower; davidosborne; kinganamort; ...
I haven't gone into this thread yet, just checking my pings. Just in case, the FR Network started the intelmemo.com or something like that. Everyone who has a web site or a blog should PUT THE FR NETWORK URL on their web site.

As soon as I get my new p.c., I'll do the same. I'm getting rid of this old dinosaur very soon... Waiting on a raincheck at the moment.

Further, there's another forum where freepers can "make hay". Visit republicanland.com. There are some eager opponents over there. Have fun. FV

34 posted on 11/29/2003 9:28:45 AM PST by floriduh voter (www.conservative-spirit.org freeper site)
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To: floriduh voter
bump later
35 posted on 11/29/2003 9:56:02 AM PST by hoosiermama (Prayers for all!)
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To: jmstein7; sauropod
'pod, can you send this on to your dc chapter list?
36 posted on 11/29/2003 10:27:15 AM PST by countrydummy
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To: countrydummy
PING! :)
37 posted on 11/29/2003 1:53:01 PM PST by jmstein7
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To: jmstein7
Might I add that memogate makes the veracity any future findings and actions of the Intelligence Committee suspect. The first action against Rockefeller is to get him off of that committee and run a full investigation. Not of the leaker, but of the treasonous witch hunt outlined in the memo.
38 posted on 11/30/2003 8:31:42 AM PST by cake_crumb (UN Resolutions = Very Expensive, Very SCRATCHY Toilet Paper)
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To: jmstein7
I see you're keeping the faith on this!

My hat's off to you.

Bump.

(Only wish I were a lawyer.)
39 posted on 11/30/2003 8:33:23 PM PST by Lauren BaRecall (Impeach Greer!)
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To: jmstein7
By the way, how did you make out with the petition?
40 posted on 11/30/2003 8:36:10 PM PST by Lauren BaRecall (Impeach Greer!)
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