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Memo to the Senate Democrats: Firing the Capitol Hill Memo Leakers May be Unconstitutional
12-01-03 | Jonathan M. Stein

Posted on 12/01/2003 7:13:11 AM PST by jmstein7

Memo to the Senate Democrats: Firing the Capitol Hill Memo Leakers May be Unconstitutional

By Jonathan M. Stein, Hofstra University Law Review

            Over the past few weeks, several memos drafted by Democrats in the Senate have been leaked to the press.  One memo, from the Senate Select Intelligence Committee, highlights how the Democrats planned to use the awesome power and resources of that committee as a political weapon against the President of the United States.  The other memos detail how powerful left-wing interest groups pressured Senate Democrats to impermissibly oppose judicial nominations based on characteristics such as race and gender.  Now the Democrats are outraged – not by the outrageous content of their memos, but by the fact that they were leaked.  Senate Democrats have demanded a probe into these leaks; their request has been granted by Republican Senator Orrin Hatch.  Though the source of the leaks may be revealed, the object of the investigation may be moot, as the Senate may be constitutionally prevented from acting against the leakers. 

 

            If the leakers are fired by the Senate, they may have actionable whistleblowing claims.  In a series of First Amendment cases, the Supreme Court has functionally established three tests to determine whether there exists an actionable claim for the infringement of a public employee's First Amendment rights.

 

            According the Court in Connick v. Myers, it must first be ascertained on the basis of "the content, form, and context of a given statement, as revealed by the whole record," whether the employee in question was speaking "as a citizen upon matters of public concern. . . . [or] as an employee upon matters only of personal interest."  Here, the leaked memos revealed a plot to misuse government resources for partisan gain and schemes to discriminate against judicial nominees based on race and gender.  Federal Appellate Courts, such as the Courts of Appeal for the Fifth, Seventh, and Tenth Circuits, have held that substantive disclosures of corruption, impropriety or other malfeasance by public officials are clearly matters of public concern.  The Supreme Court itself, in Connick, stated that abuse of public office is a matter traditionally occupying "the highest rung of the hierarchy of First Amendment values."  Thus, it is quite likely that the first test would be satisfied, and a court could reasonably find that the leakers’ “speech” – in the form of the memos – was that of citizens “upon matters of public concern.”

 

            Once it is determined that the leakers speech engendered matters of public concern, the second test, according to the Supreme Court in Pickering v. Board of Education of Topeka High School, is to balance “the interests of [the speaker], in commenting upon matters of public concern and the interest of the [government] . . . in promoting the efficiency of the public services it performs through its employees.”  The information the leakers disclosed concerns alleged abuses of public office.  This kind of speech weighs strongly in the leakers’ favor.  As the Third Circuit stated succinctly stated in O'Donnell v. Yanchulis,

[a]n employee who accurately exposes rampant corruption in her office no doubt may disrupt and demoralize much of the office. But it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office. . . .The point is simply that the balancing test articulated in Pickering is truly a balancing test, with office disruption or breached confidences being only weights on the scales.

Thus, while there is a potent public interest in exposing impropriety at the highest levels, the Senate Democrats have yet to justify any legitimate interests reflected in the substance of the leaked memos or legitimate interests in keeping such information secret and away from the public.  The reason is that there probably are no such legitimate interests.  Therefore, the balance here likely tips heavily in favor of the leakers, and a court could reasonable find that the second test is satisfied.

 

            The third test, in the case of the leakers, is merely a formality.  The test is one of causation, i.e. according to the Court in Mount Healthy City School District Board of Education v. Doyle, the leakers would have to demonstrate that leaking the memos was a “substantial or motivating factor” is the Senate’s decision to fire them.  This is a mere tautology – if there is an investigation into the source of the leaks, and the leakers are subsequently fired as a result of such an investigation, then the leaking of the memos is the only factor in the decision to dismiss!  These staffers simply cannot be fired as a result of their constitutionally protected speech.  The government, thus, would be faced with the impossibility of showing “by a preponderance of the evidence that it would have reached the same decision [to fire the staffers] . . . even in the absence of the protected conduct.”  Thus, the leakers could reasonably prevail.

 

            If the Senate fires staffers for leaking memos that outline how Senate Democrats have abused, or planned to abuse, their positions as United States Senators, the staffers will likely have a cause of action against the government based on First Amendment rights.  Such action, on its merits, will get to the substance of the various memos.  The burden will then be on the Democrats to defend the substance of the memos – an untenable position, which includes, inter alia, defending the unprecedented filibusters of highly qualified minority nominees solely because powerful far left-wing interest groups want to merely deny Republicans the political capital associated with appointing minorities to the Federal bench.

 

            Someone ought to draft a memo to the Senate Democrats suggesting a change in strategy – immediately.

 

Copyright © 2003 Jonathan M. Stein

This Copyrighted Material May Not Be Reprinted

Or Reproduced in Any Manner Without the Express

Permission of the Copyright Owner.  17 U.S.C. § 106 (2002).


TOPICS: Editorial
KEYWORDS: 2004memo; intelmemo; judiciarycommittee; memo; memogate; orrinhatch; rockefeller
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1 posted on 12/01/2003 7:13:13 AM PST by jmstein7
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To: MeeknMing
Need a major Meek-a-Bump!
2 posted on 12/01/2003 7:14:08 AM PST by jmstein7
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To: jmstein7
Too bad this war wasnt officially declared by our leaders...maybe they didnt like the idea of
Wartime Treason = firing squad
3 posted on 12/01/2003 7:18:24 AM PST by joesnuffy (Moderate Islam Is For Dilettantes)
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To: Lauren BaRecall; MainFrame65; backhoe; cake_crumb; countrydummy; Chad Fairbanks; ...
PING!
4 posted on 12/01/2003 7:19:22 AM PST by jmstein7
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To: jmstein7
Good article. It needs to be passed on the Rush and anyone else who can get the word out.

(Either that, or it should be suppressed, until the Democrats have put their feet so far into deep **** that their media pimps can no longer keep this story off the front pages.)
5 posted on 12/01/2003 7:22:28 AM PST by Cicero (Marcus Tullius)
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To: Cicero
Do you know how to get it to him?
6 posted on 12/01/2003 7:27:03 AM PST by jmstein7
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To: jmstein7
Here, the leaked memos revealed a plot to misuse government resources for partisan gain and schemes to discriminate against judicial nominees based on race and gender.

I thought that the Democrats were objecting to the ideology of a few judicial nominees, not their gender or ethnic origin. Can someone quote this memo and back up this claim?

7 posted on 12/01/2003 7:27:06 AM PST by RonF
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To: RonF
Yes.

Go to http://fairjudiciary.campsol.com/cfj_contents/press/collusionmemos.shtml
8 posted on 12/01/2003 7:32:27 AM PST by jmstein7
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To: jmstein7
bump!
9 posted on 12/01/2003 7:34:27 AM PST by countrydummy
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To: jmstein7
Trenchant Analysis.


Loosen up the elbow, ad te shoulder, and give yourself a pat on the back.


Send a copy, along with your resume to Floyd Abrams....
10 posted on 12/01/2003 7:35:26 AM PST by hobbes1 ( Hobbes1TheOmniscient® "I know everything so you don't have to" ;)
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To: jmstein7
Looks like it time to push for protecting "Christians" and "conservatives" legislation.

Civil RIGHTS for MARRIAGE
RIGHT to IDEOLOGY


Take this bunch on with a GOP "HATE CRIME" legislation.

Since this lying bunch is after President Bush's secret "INTEL", make a deal with them give us our judges and we will let you have a peek at the "INTEL".
11 posted on 12/01/2003 7:36:30 AM PST by Just mythoughts
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To: jmstein7
INTREP - DemoRAT law-breaking, being unconstitutional as a way of life ALERT!
12 posted on 12/01/2003 7:41:39 AM PST by LiteKeeper
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To: jmstein7
Setting aside the dubious idea that strategizing on matters of politics is subject to whistleblowing interpretations, the public interest would not be served by actually retaining these staffers. If the process revealed the leakers and subsequent terminations were overturned based on the whistleblower rulings, the Member would merely continue to pay the staffer but not allow them in the office.

The effective result would be to pay a congressional staffer to do nothing. This is not a case where a career bureaucrat blows the whistle and needs protection. The staffer could easily lose their job every election cycle. I think in this case, if the law prevents their firing, the law is a ass.

13 posted on 12/01/2003 7:43:25 AM PST by Mr. Bird
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To: jmstein7
Will you be my lawyer? : )
14 posted on 12/01/2003 8:02:31 AM PST by DaughterOfAnIwoJimaVet ("Does this holster make me look fat?" - Conspiracy Guy)
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To: holdonnow
You've probably been pinged already, but I'm sure I'm not the only one who would be curious to know what you think of this.
15 posted on 12/01/2003 8:03:22 AM PST by DaughterOfAnIwoJimaVet ("Does this holster make me look fat?" - Conspiracy Guy)
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To: jmstein7
I'm confused here. Maybe someone can help me out. I think there are more questions about accessing the memos than we know.

If in the regular course of a government employee's duties, they become aware of wrong doing and/or corruption and blow the whistle - they are protected through the whistleblower's act.

Was "monitoring files", in the regular course of the staffer's duties?

Did the whistleblower, violate federal laws in aquiring the information? If they did, does this negate ammunity through whistleblower's act?


Are staffer's made aware that their e-mail and or files can/maybe monitored by their employer and are not to be considered "private" property? If so, are the files property of the committee and not an individual member of the committee?

Are the computers that were accessed, property of the committee or are they property of the Senator's office. Do all staffers regardless of party have access to the data on those computers?

However - could the staffers that held the information be in violation by not securing the computers from being accessed by unauthorized individuals?

Example - If the staffer followed all security rules, and had both the computer and data secured and as a result of hacking or a breakin the data is taken- then the staffer would not be liable. If however, the staffer did not secure the computer and or data, then the staffer would be held liable.?
16 posted on 12/01/2003 8:09:06 AM PST by ODDITHER
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To: ODDITHER
The interest in protecting the people from the corruption of public officials outweighs the interest of public official in covering their butts.
17 posted on 12/01/2003 8:16:11 AM PST by jmstein7
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To: jmstein7
Bttt
18 posted on 12/01/2003 8:21:32 AM PST by Chad Fairbanks (Sound the trumpets, Raise the drawbridge, and drop the Oldsmobile.)
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To: Mich0127
BTTT!
19 posted on 12/01/2003 8:22:36 AM PST by jmstein7
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To: jmstein7
fOR LATER.......
20 posted on 12/01/2003 8:22:39 AM PST by OXENinFLA
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To: jmstein7; ODDITHER
We don't want to chill speech such that public employees are afraid to report corruption.
21 posted on 12/01/2003 8:26:47 AM PST by jmstein7
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To: jmstein7
Small problem, the law probably doesn't apply to congress.
22 posted on 12/01/2003 8:30:51 AM PST by VRWC_minion (Opinions posted on Free Republic are those of the individual posters and most are right)
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To: VRWC_minion
This doesn't involve statutory wistleblowing; this involves First Amendment right, which supercedes.
23 posted on 12/01/2003 8:32:06 AM PST by jmstein7
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To: RonF
you've been on vacation?? ;)im only kidding ok? this topic was all over here the past few weeks.
24 posted on 12/01/2003 8:34:05 AM PST by suzyq5558 (the nine dwarves= idiocrats on parade)
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To: jmstein7
Don't worry. No government employee can be fired for any reason, Constitutional or otherwise.
25 posted on 12/01/2003 8:34:25 AM PST by henderson field
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To: jmstein7
This doesn't involve statutory wistleblowing; this involves First Amendment right, which supercedes.

1st doesn't protect from loss of job. Seeing that congress exempts itself from most laws and has a constitutional mandate to "police" itself, I would not be surprised if this staffer doesn't have the same protection a worker in the private sector has.

26 posted on 12/01/2003 8:38:00 AM PST by VRWC_minion (Opinions posted on Free Republic are those of the individual posters and most are right)
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To: jmstein7
Excellent work, Jon!
27 posted on 12/01/2003 8:39:38 AM PST by LurkerNoMore!
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To: joesnuffy
Too bad this war wasnt officially declared by our leaders...maybe they didnt like the idea of Wartime Treason = firing squad

Interesting point.
Eliminate the concept of treason by the simple expedient of never declaring a war.

There might be a message there.
I think it's a huge mistake to eliminate the reality of Treason.
There is something of unintended consequences after having fought 5 wars without declaring them as wars.

Perhaps that should end.
Let's be sure up front of two things.
The war is justified, in our own minds and no one else's.
And treason will be dealt with the old-fashioned way.

Otherwise no more conflicts.

28 posted on 12/01/2003 8:43:28 AM PST by Publius6961 (40% of Californians are as dumb as a sack of rocks.)
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To: LurkerNoMore!
Thanks!
29 posted on 12/01/2003 8:44:21 AM PST by jmstein7
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To: VRWC_minion
Read the case law contained herein; I think you will find that my analysis is correct.

So, only write back after examining the case law I reference.
30 posted on 12/01/2003 8:45:31 AM PST by jmstein7
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To: jmstein7
Here, the leaked memos revealed a plot to misuse government resources for partisan gain...

Isn't this a violation of the Hatch Act? /rhetorical

31 posted on 12/01/2003 8:51:06 AM PST by MrConfettiMan (Emily Hope...born 11/10/03...first child of MCM...a gift from God swaddled in a blanket...)
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To: VRWC_minion
The Congressional Accountability Act of 1995 did apply many employment laws to the Congress.


...But not the 1989 Whistleblower Protection Act.

32 posted on 12/01/2003 8:53:19 AM PST by mrsmith
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To: jmstein7; Lando Lincoln; yall

33 posted on 12/01/2003 9:14:49 AM PST by MeekOneGOP (George Soros "MINOB": http://richard.meek.home.comcast.net/SorosRatsA.JPG)
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To: jmstein7

-PJ

34 posted on 12/01/2003 9:18:30 AM PST by Political Junkie Too (It's not safe yet to vote Democrat.)
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To: jmstein7
I just emailed it to Rush @

Rush@eibnet.com
35 posted on 12/01/2003 9:23:15 AM PST by MeekOneGOP (George Soros "MINOB": http://richard.meek.home.comcast.net/SorosRatsA.JPG)
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To: jmstein7; Alamo-Girl; onyx; SpookBrat; Republican Wildcat; Howlin; dixiechick2000; SusanUSA; ...
Memo to the Senate Democrats:
Firing the Capitol Hill Memo Leakers May be Unconstitutional

Excerpt:

Over the past few weeks, several memos drafted by Democrats in the Senate have been leaked to the press. One memo, from the Senate Select Intelligence Committee, highlights how the Democrats planned to use the awesome power and resources of that committee as a political weapon against the President of the United States. The other memos detail how powerful left-wing interest groups pressured Senate Democrats to impermissibly oppose judicial nominations based on characteristics such as race and gender. Now the Democrats are outraged – not by the outrageous content of their memos, but by the fact that they were leaked. Senate Democrats have demanded a probe into these leaks; their request has been granted by Republican Senator Orrin Hatch. Though the source of the leaks may be revealed, the object of the investigation may be moot, as the Senate may be constitutionally prevented from acting against the leakers.


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


36 posted on 12/01/2003 9:27:10 AM PST by MeekOneGOP (George Soros "MINOB": http://richard.meek.home.comcast.net/SorosRatsA.JPG)
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To: MeeknMing
BUMP!
37 posted on 12/01/2003 10:10:09 AM PST by jmstein7
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To: DaughterOfAnIwoJimaVet
LOL!
38 posted on 12/01/2003 10:11:04 AM PST by jmstein7
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To: RonF
Memo says they have to stop Estrada because he's Hispanic; among other things. I've seen the memo.
39 posted on 12/01/2003 10:51:16 AM PST by The Final Harvest (America .. the LIGHT of the World)
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To: CyberAnt
1983 Violation
40 posted on 12/01/2003 10:59:28 AM PST by jmstein7
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To: suzyq5558
Actually, I have been on vacation on and off quite a bit over the last few weeks.
41 posted on 12/01/2003 11:32:12 AM PST by RonF
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To: jmstein7
Nice opportunity to pound sand up their rat arses.
42 posted on 12/01/2003 11:51:16 AM PST by RJS1950
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To: jmstein7
Thanks for the ping!
43 posted on 12/01/2003 11:58:52 AM PST by Alamo-Girl
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To: Alamo-Girl
My pleasure; pass the word on!
44 posted on 12/01/2003 11:59:50 AM PST by jmstein7
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To: All
BTTT!
45 posted on 12/01/2003 12:22:49 PM PST by jmstein7
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To: jmstein7
If the leakers are fired by the Senate, they may have actionable whistleblowing claims.... If the Senate fires staffers for leaking memos that outline how Senate Democrats have abused, or planned to abuse, their positions as United States Senators, the staffers will likely have a cause of action against the government based on First Amendment rights.  Such action, on its merits, will get to the substance of the various memos.  The burden will then be on the Democrats to defend the substance of the memos – an untenable position, which includes, inter alia, defending the unprecedented filibusters of highly qualified minority nominees solely because powerful far left-wing interest groups want to merely deny Republicans the political capital associated with appointing minorities to the Federal bench.

Who would have thunk it? But wasn't Linda Tripp a whistleblower? Proceed carefully.

46 posted on 12/01/2003 12:48:21 PM PST by OESY
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To: left-handed conservative chef
If the Senate fires staffers for leaking memos that outline how Senate Democrats have abused, or planned to abuse, their positions as United States Senators, the staffers will likely have a cause of action against the government based on First Amendment rights. Such action, on its merits, will get to the substance of the various memos. The burden will then be on the Democrats to defend the substance of the memos – an untenable position, which includes, inter alia, defending the unprecedented filibusters of highly qualified minority nominees solely because powerful far left-wing interest groups want to merely deny Republicans the political capital associated with appointing minorities to the Federal bench.


47 posted on 12/01/2003 5:01:18 PM PST by perfect stranger (No tag line today. Tag line yesterday, tag line tomorrow, but no tag line today.)
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To: jmstein7
Let's say I work with someone that I suspect is doing something illegal but I don't have any proof. I decide to break into their office and hack their computer to get the goods on them. I then turn that information over to the press (not the police or my employer) but the press. The evidence gathering doesn't justify my breaking and entering.

That doesn't make the person that is doing something illegal - innocent or should the evidence found be ignored, but it does seem to me that I should be held accountable for breaking and entering.

48 posted on 12/01/2003 5:32:50 PM PST by ODDITHER
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To: All
BUMP!
49 posted on 12/02/2003 5:07:57 AM PST by jmstein7
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To: ODDITHER; All
Except that the computers weren't hacked; they were on a common server (thanks to Leahy). It's not the staffer's fault that the memos were stored in public for all to see (which is why they knew of their existence). It would have been different if they indeed did "hack" into protected servers to get the info, but that is not what happened here.

Plus, congress is considered a "single entity" by its own rules.

Therefore, it was absolutely correct to "blow the wistle" on this corruption; the people at large (we the people) have a string interest in knowing if their elected officials are abusing their offices.
50 posted on 12/02/2003 5:12:58 AM PST by jmstein7
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