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Support Grows For Judicial Memo Whistleblower (MemoGate)
Talon News ^ | 12-03-02 | By Jeff Gannon

Posted on 12/03/2003 6:37:14 AM PST by jmstein7

A Republican staffer on the Senate Judiciary Committee was placed on administrative leave last week in the wake of a U.S. Capitol Police investigation into the release of memos describing strategies for Democrats to use regarding judicial nominees.

Committee Chairman Sen. Orrin Hatch (R-UT) told reporters he took the action because, "I am mortified that this improper, unethical and simply unacceptable breach of confidential files may have occurred on my watch."

Democrats on the committee have expressed outrage over the memos' release to the Wall Street Journal in which their strategy to delay and defeat President Bush's judicial nominees when they were in the majority was outlined. The memos detailed meetings with liberal groups like People for the American Way and NARAL who suggested which judges to block and the tactics to use against them.

Democrats have remained silent on the content of the memos, instead focusing on how they were obtained.

The unnamed staffer has denied the allegations to investigators. Some suggest that that there may have been no criminal activity at all, depending upon when the memos were obtained and considering their content.

It is believed that the memos came from the committee's servers, but it was not until the Republicans took control of the Senate in 2003 that the computers were segregated according to party affiliation. When the Democrats ruled the panel, the servers were accessible to all staffers.

Kay Daly, President of the Coalition for a Fair Judiciary told Talon News, "If Kennedy and Durbin have heartburn over some of these things, they should go see Patrick Leahy."

She pointed out that it was Leahy who opened up the servers when Democrats took control.

She added, "Hatch changed it back. If these were accessed when the Democrats were still in charge, no crime has been committed."

Daly praised the actions of the staffer who blew the whistle on what she considers unethical conduct by Senate Democrats.

She said, "This guy should be given a medal -- he's a hero, he saw wrongdoing and did something about it."

Daly asserts that the content of the memos describes unethical conduct, the most egregious of which is the racial and sexual discrimination against certain judicial nominees. Equally troubling to her is the NAACP's successful attempt to convince Senate Democrats to delay confirming judges to the 6th Circuit to assure that the landmark University of Michigan affirmative action case was decided in their favor.

Jonathan Stein of the Hofstra University Law Review believes that firing the staffer may be unconstitutional under whistleblower laws. He cites several cases to support his argument that the staffer's actions were consistent with his First Amendment Rights.

Gary Aldrich, a former FBI agent and whistleblower on the Clinton White House agreed, but was less certain of the legal basis for such a defense. Still, he urges the staffer to contact the Patrick Henry Center for Individual Liberty, of which he is president and founder for assistance.

Both Aldrich and Daly expressed disappointment in the Republican leadership's capitulation to the Democrat demands on the matter. Democrats on the Senate Intelligence Committee have yet to apologize, disavow or discipline one of their staffers who authored a memo that Chairman Sen. Pat Roberts (R-KS) called an "attack plan" to use classified information against President Bush in the upcoming election.


TOPICS: Extended News
KEYWORDS: 2004memo; estradamemo; intelcommittee; judicialnominees; judiciarycommittee; memogate; patroberts
Good -- we're not letting this one go.
1 posted on 12/03/2003 6:37:14 AM PST by jmstein7
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To: jmstein7
Hatch is a joke - c'mon Utah, you can give us a better Republican Senator than that! Put him out to pasture.
2 posted on 12/03/2003 6:38:45 AM PST by over3Owithabrain
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To: over3Owithabrain
Committee Chairman Sen. Orrin Hatch (R-UT) told reporters he took the action because, "I am mortified that this improper, unethical and simply unacceptable breach of confidential files may have occurred on my watch."

This guy has consistently disappointed conservatives. Is it a morman thing or what?

3 posted on 12/03/2003 6:41:47 AM PST by ClintonBeGone
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To: jmstein7
Jonathan Stein of the Hofstra University Law Review believes that firing the staffer may be unconstitutional under whistleblower laws. He cites several cases to support his argument that the staffer's actions were consistent with his First Amendment Rights.

Wonder if the Whistleblowers law even applies to congress.

4 posted on 12/03/2003 6:42:45 AM PST by ClintonBeGone
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To: jmstein7
Can somebody please put Hatch on administrative leave for dereliction of duty?
5 posted on 12/03/2003 6:43:08 AM PST by Triple (All forms of socialism deny individuals the right to the fruits of their labor)
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To: ClintonBeGone
That's actually a misquote. What I said was that they have an actionable First Amendment claim which resembles a whistleblowing claim -- but its not quite the same.
6 posted on 12/03/2003 6:48:34 AM PST by jmstein7
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To: jmstein7
Couple of thoughts. First of all, the "leaker" better land on his feet somewhere else in the GOP machine. Politics is dirty business, and this guy knows how to play.

Second, I'm not sure Congress should be able to classify documents as confidential if they are simply correspondence. The FOIA should apply to all Congressional documents not classifed due to national security or other legal concerns.

Thirdly, can you imagine the level of press outrage if such information was revealed and the GOP was the culprit?
7 posted on 12/03/2003 6:52:10 AM PST by Mr. Bird
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To: jmstein7
When are the voters of Utah going to wise up and throw this half-assed Hatch-Back out to the junkheap of history?

This smarmy lttle wimp of a traitor only shows a backbone when he's attacking his own team.

8 posted on 12/03/2003 6:57:59 AM PST by ctonious
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To: Mr. Bird
My thoughts exactly. I have not heard one TV news report about this. I wonder why?
9 posted on 12/03/2003 7:00:38 AM PST by Sunshine Sister
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To: Mr. Bird
Unless things have changed radically in the last few years, FOIA (the federal law) applies only to the Executive branch of government, and not the Legislative or Judicial. Whether it should or not is a different question.
10 posted on 12/03/2003 7:03:19 AM PST by Tired_of_the_Lies
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To: jmstein7
Nice work! Props to Kay and Jeff!
11 posted on 12/03/2003 7:03:35 AM PST by diotima
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To: Tired_of_the_Lies
Really? I thought court records were covered. Certainly, the operative word is should.
12 posted on 12/03/2003 7:04:39 AM PST by Mr. Bird
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To: Mr. Bird
Public access to court records is not covered by the FOIA, or at least wasn't a few years ago.

I can't speak definitively to how or why court records are open to the public, but it is likely derivitive. in criminal trials at least, of the accused right to a fair and open trial under the Constitution and, in both civil and criminal trials, partly to the right of freedom of the press.

Whtever the legal analysis, court records were generally open to the public long before the FOIA was enacted in the aftermath of Watergate.
13 posted on 12/03/2003 7:16:17 AM PST by Tired_of_the_Lies
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To: jmstein7
Hatch is a Dem stooge. We should be focusing on the content of the memos. Instead, Hatch is deflecting onto this poor staffer. Thank you, Sen. Hatch.
14 posted on 12/03/2003 7:16:52 AM PST by kevao
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To: jmstein7
That's actually a misquote. What I said was that they have an actionable First Amendment claim which resembles a whistleblowing claim -- but its not quite the same.

Ha! That's you cited in the article. I missed that on first blush. You've provided an interesting theory, but is there any authority upon which to base it? It would appear that the GOP staffer has rather unclean hands, at least from a legal perspective. How do you establish too that the judicary staffer, possible a lawyer himself, had some reasonable basis to believe that the democrats memos contain evidence of illegal activity? Especially if he didn't know what the memos contained until he read them.

15 posted on 12/03/2003 7:23:50 AM PST by ClintonBeGone
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To: Mr. Bird
Second, I'm not sure Congress should be able to classify documents as confidential if they are simply correspondence. The FOIA should apply to all Congressional documents not classifed due to national security or other legal concerns.

FOIA may not even apply to congress. It all depends on whether they included themselves when they wrote the law. Some state legislatures have exempted themselves.

16 posted on 12/03/2003 7:25:30 AM PST by ClintonBeGone
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To: Mr. Bird
Really? I thought court records were covered. Certainly, the operative word is should.

It's usally defended in some lame 'seperation of powers' arguement.

17 posted on 12/03/2003 7:27:04 AM PST by ClintonBeGone
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To: jmstein7
Very nice... this helps put the focus back on the Democrats' wrongdoing instead of their synthetic outrage over how the memos were revealed.
18 posted on 12/03/2003 7:41:04 AM PST by Interesting Times (ABCNNBCBS -- yesterday's news.)
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To: over3Owithabrain
He will be replaced next year, at least as chairman of the Senate Judiciary Committee, by Arlen Specter. You'll be pining for the days of Hatch before the snow melts.
19 posted on 12/03/2003 7:42:31 AM PST by seamus
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To: Mr. Bird
What the memos revealed was the Dems working hand-in-glove with lobbyists, even to the point of re-scheduling hearings at their request. Isn't this precisely the sort of unhealthy arrangement with lobbyists that the Dems (especially Henry Waxman) have been telling us the public has a right to know about, and which formed the basis of their legal challenge to obtain Cheney's memos regarding the energy task force? Doesn't the public have a "right to know" about the iner workings of the Dems as well as the Republicans?
20 posted on 12/03/2003 7:47:10 AM PST by Steve_Seattle ("Above all, shake your bum at Burton.")
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To: ClintonBeGone; Mr. Bird
You may not care about this particularly, but the Department of Justice publishes a book each year called the FOIA Guide. For the most part, it is the difinite handbook for FOIA within the Executive branch. Here is the url for the May 2002 edition:

http://www.usdoj.gov/oip/procereq.htm#entities

It says in part (very near the beginning) that:

Entities Subject to the FOIA

Agencies within the executive branch of the federal government, including the Executive Office of the President and independent regulatory agencies, are subject to the FOIA. However, the FOIA does not apply to entities that "are neither chartered by the federal government [n]or controlled by it."

Thus, it is settled that state governments, municipal corporations, the courts, Congress, and private citizens are not subject to the FOIA. Nor does the FOIA apply to a presidential transition team. (footnotes removed; emphasis added)

21 posted on 12/03/2003 7:49:32 AM PST by Tired_of_the_Lies
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To: seamus
He will be replaced next year, at least as chairman of the Senate Judiciary Committee, by Arlen Specter. You'll be pining for the days of Hatch before the snow melts.

Great. The other cum laude graduate of the Neville Chamberlain School of Appeasement.

22 posted on 12/03/2003 7:51:37 AM PST by ctonious
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To: jmstein7
Hatch is a ...[fill in the blank]
23 posted on 12/03/2003 7:56:52 AM PST by LiteKeeper
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To: ClintonBeGone; Mr. Bird
Try this url for the whole guide:

http://www.usdoj.gov/oip/foi-act.htm

The portion I quoted is in the "Procedural Requirements."
24 posted on 12/03/2003 7:57:07 AM PST by Tired_of_the_Lies
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To: jmstein7
"This guy should be given a medal -- he's a hero, he saw wrongdoing and did something about it."

There is no greater crime in a bureaucracy than disloyalty; for this guy to have told tales out of school, however true those tales were, is unforgivable. Even the fact that the Wall Street Journal says he's not their source will not save him, since being innocent when your boss has already declared you guilty makes the boss look bad, which is the ultimate disloyalty.

25 posted on 12/03/2003 8:11:49 AM PST by Grut
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To: ClintonBeGone
Don't be so hasty: this is a setup if I ever saw one. If Hatch and the GOP get "incensed" over leaking of these memos, the Dems will be exposed for theirs and (I'd bet) have far more dirty laundry. This is the old "Lazio handshake" maneuver, pulling them out in public.
26 posted on 12/03/2003 8:17:03 AM PST by LS
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To: LS
Don't be so hasty: this is a setup if I ever saw one. If Hatch and the GOP get "incensed" over leaking of these memos, the Dems will be exposed for theirs and (I'd bet) have far more dirty laundry. This is the old "Lazio handshake" maneuver, pulling them out in public.

I hope you're right, but I don't think so. When EVER has the GOP gotten the upperhand in these type of situations?

27 posted on 12/03/2003 8:19:46 AM PST by ClintonBeGone
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To: Tired_of_the_Lies
Thus, it is settled that state governments, municipal corporations, the courts, Congress, and private citizens are not subject to the FOIA. Nor does the FOIA apply to a presidential transition team. (footnotes removed; emphasis added)

Yes, that is consistent with what I said earlier. I don't think anyone was (or should have) implied that the federal FOIA applies to the states. Each state has its own version.

28 posted on 12/03/2003 8:21:28 AM PST by ClintonBeGone
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To: ClintonBeGone
It's an 'FBI-file' thing, I think.
29 posted on 12/03/2003 8:27:50 AM PST by expatpat
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To: expatpat
It's an 'FBI-file' thing, I think.

LOL I can't imagine what would be in the FBI file of a guy that doesn't even drink caffine.

30 posted on 12/03/2003 8:35:04 AM PST by ClintonBeGone
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To: ClintonBeGone
Two words: Pentagon Papers
31 posted on 12/03/2003 9:38:17 AM PST by jmstein7
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To: seamus
All the more reason to be sure Arlen doesn't get re-elected.
32 posted on 12/03/2003 10:49:50 AM PST by OldFriend (DEMS INHABIT A PARALLEL UNIVERSE)
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To: OldFriend
This was my question to White House Press Secretary Scott McClellan at today's briefing:

Q: Memos from the Senate Judiciary Committee that were leaked to The Wall Street Journal show that Democrats opposed Miguel Estrada, and I quote, "because he is Latino," and Priscilla Owen, "because she is a woman from
Texas." Is the White House going to call for an EEOC investigation into the unlawful racial and sexual discrimination against these nominees?

MR. McCLELLAN: I don't know about the specific reports, but the President appoints people who he believes is the best individual for that position. And he appoints people of -- people that have a conservative judicial view that will interpret the law, not make law, from the bench. And that's the President's views and Congress needs to act to vote -- or the Senate needs to allow up-or-down votes on all of his nominees, and that's what we're continuing to do,
that's where our focus is. The Senate needs to fulfill its responsibility to allow all individuals that the President has nominated to judicial positions to receive an up-or-down vote.

There are also a number -- Congress will be coming back in town next week, there are a number of nominations, some hundred nominations that are pending out there, beyond just judicial nominees, that the Senate has yet to act on. And we would encourage the Senate, when they return, to move forward and act on those nominees. These are a number of important positions.

33 posted on 12/03/2003 3:28:45 PM PST by Jeff Gannon
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To: Jeff Gannon
You teed him up -- you would think that he would have wanted to knock that one out of the park.

The new tone has to go.
34 posted on 12/03/2003 3:49:18 PM PST by jmstein7
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To: jmstein7
agreed. too wimpy.
35 posted on 12/03/2003 5:00:30 PM PST by Jeff Gannon
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To: Jeff Gannon
Maybe you should ask him this next time: Mr. McClellan -- do you believe that YOUR interest in "making nice" with the Democrats and maintaining the "new tone" outweighs the PUBLIC'S interest in knowing if their elected Democrat Senators are engaging in corrupt and unethical behavior?
36 posted on 12/03/2003 5:21:57 PM PST by jmstein7
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