January 29, 2004,
For months now, Senate Democrats have wanted a scalp in the Judiciary Committee memos investigation. If Republicans can be pressured into firing one of their own for leaking the documents, Democrats the aggressors in the fight over the president's judicial nominees will be able to portray themselves as victims.
You remember the memos. They were from Democratic staffers to Senators Richard Durbin and Edward Kennedy, and they discussed Democratic strategies for blocking the president's judicial nominees.
When they were leaked to the Wall Street Journal editorial page last November, the memos revealed just how closely Senate Democrats worked with outside interest groups like People for the American Way and the NAACP Legal Defense Fund.
The memos showed that Democrats didn't just listen to the groups' concerns, they tried hard to do the groups' bidding.
After the leak, Democrats went into classic damage control mode, accusing Republicans of hacking into Democratic computers, stealing the documents, and then giving them to the press in violation of Senate rules.
Senate Judiciary Committee chairman Orrin Hatch agreed to Democratic demands for a wide-ranging investigation, and soon the Sergeant-at-Arms was seizing computer hard drives and questioning dozens of people.
Some of it seemed a little unnecessary. Right off the bat, the Republican staffer who originally found the Democratic memos told investigators he did it simple as that. And since the memos were on the committee's computers, available to anyone who clicked on them, no one had to break into any computer, or break any laws, to read them.
What's more, there's a good argument to make that giving the memos to the press did not violate the Senate's Rule 29.5, which bars the disclosure of "secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees, and offices of the Senate." That apparently means stuff like the minutes of a closed hearing, or FBI material on a nominee not a staffer's memo to a senator.
Still, Republicans displayed exceptionally poor judgment in peeking at the memos. Whoever did it will have to be punished in some way.
But if the non-illegal, non-rulebreaking leak warranted a major investigation, why shouldn't the actions described in the memos themselves be the subject of another inquiry? Investigators might ask, for example, whether a senator or his staff tried to influence the outcome of a pending case in a federal court.
That seems to be a reasonable inference one can draw from an April 17, 2002 memo from a staffer to Sen. Kennedy detailing how the NAACP Legal Defense Fund asked Democrats to delay the nomination of Julia Scott Gibbons to the Sixth Circuit Court of Appeals while the University of Michigan affirmative-action case ran its course. Even the author of the memo admitted to being "a little concerned about the propriety of scheduling hearings based on the resolution of a particular case."
When presented with Democratic demands for an investigation into the leak, Republicans might have instead demanded a two-track probe: one into the leaks, the other into the Gibbons/Sixth Circuit matter. Instead, the GOP gave Democrats what they wanted.
Now, with the investigation winding down, we'll soon know whether Democrats will get the scalp they wanted, too. There's been a lot of talk about that scalp belonging to Manuel Miranda, an aide to Majority Leader Bill Frist and a former aide to Hatch.
Although his is not a household name, Miranda is a tempting target for Democrats. He's one of Senate's top-ranking Hispanic staffers, and he did extensive work on the hard-fought appeals-court nomination of Miguel Estrada.
Building support for Estrada, Miranda met with more than 20 Hispanic organizations. He made more than 100 appearances on Spanish-language radio and television, and he attended Spanish-language events on behalf of Frist. Rep. Mario Diaz-Balart (R., Fla.), an ally of Miranda's, calls him "sharp, effective, honorable, decent, and hardworking."
The work for Estrada, even though it ultimately failed in the face of a Democratic filibuster, helped Republicans build new ties to Hispanic groups. Getting rid of Miranda would damage that new GOP/Hispanic relationship. Having Miranda gone would also help Democrats in the event that President Bush nominates a Hispanic to the Supreme Court.
Miranda is now on leave from Frist's office, pending the outcome of the memo investigation. He denies any wrongdoing in the case and adds, "To say it was poor judgment to try to benefit lawfully from your opposition's negligence in defending judicial nominees like Priscilla Owen and Miguel Estrada against unconscionable attacks that injure both morality and the public trust is to ignore the real world adversarial nature of the judicial confirmation process and to fail to understand the passion of advocates. The wrongdoing was in writing the collusive memos, not in reading them."
Conservatives certainly agree with that, and this week a number of groups on the right are getting in touch with the Senate Republican leadership, warning them, in the words of one conservative, that "unless there is a bombshell in the report, we think it would be reckless and cowardly and politically tone deaf to have a scapegoating among conservatives in the Senate."
But the issue is much larger than any scapegoat. If the memos leak merited the intense investigation that has been going on for months, then certainly the behavior described in the memos deserves scrutiny as well.
It's only fair.
Byron York is also a columnist for The Hill, where a version of this first appeared.