Support Grows For Judicial Memo Whistleblower (MemoGate)

Talon News ^ | 12-03-02 | By Jeff Gannon

[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.

[jmstein7]

Good -- we're not letting this one go.

[over3Owithabrain]

Hatch is a joke - c'mon Utah, you can give us a better Republican Senator than that! Put him out to pasture.

[ClintonBeGone]

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?

[ClintonBeGone]

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.

[Triple]

Can somebody please put Hatch on administrative leave for dereliction of duty?

[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.

[Mr. Bird]

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?

[ctonious]

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.

[Sunshine Sister]

My thoughts exactly. I have not heard one TV news report about this. I wonder why?

[Tired_of_the_Lies]

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.

[diotima]

Nice work! Props to Kay and Jeff!

[Mr. Bird]

Really? I thought court records were covered. Certainly, the operative word is should.

[Tired_of_the_Lies]

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.

[kevao]

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.

[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.

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.

[ClintonBeGone]

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.

[ClintonBeGone]

Really? I thought court records were covered. Certainly, the operative word is should.

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

[Interesting Times]

Very nice... this helps put the focus back on the Democrats' wrongdoing instead of their synthetic outrage over how the memos were revealed.

[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.

[Steve_Seattle]

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?