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

11-28-03

[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. 

2. 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.

3. 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.”

4. 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. 

3. 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.

[international american]

We need to keep pounding on this Rockadude until he cracks!!

[jmstein7]

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".

[Xthe17th]

Bookmarking WV BUMPS!! Excellent Work.

[cars for sale]

email em Jim ,Lindsey is open to unsights

[Chad Fairbanks]

Bttt!

[jmstein7]

Told you I'd be workin' on it :)

[ODDITHER]

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?

[Chad Fairbanks]

There's no way - she doesn't come close to having the seniority to be on that committee. I can't see that happening...

[jmstein7]

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.

[Don Corleone]

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?

[MeekOneGOP]

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

Well, maybe. I don't know.

jmstein7 ?? ..

[MeekOneGOP]

thesummerwind
Since Nov 27, 2003

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

[floriduh voter]

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

[hoosiermama]

bump later

[countrydummy]

'pod, can you send this on to your dc chapter list?

[jmstein7]

PING! :)

[cake_crumb]

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.

[Lauren BaRecall]

I see you're keeping the faith on this!

My hat's off to you.

Bump.

(Only wish I were a lawyer.)

[Lauren BaRecall]

By the way, how did you make out with the petition?