Wednesday, April 28, 2004
Copyright © Las Vegas Review-Journal

EDITORIAL: Probing smoke, ignoring fire

Take a closer look at what leaked Judiciary memos really reveal

The Justice Department tapped an acting U.S. attorney from New York on Monday to investigate whether laws were violated when two Senate Republican aides accessed Democratic computer files revealing party strategy for blocking President Bush's judicial nominations.

Sen. Patrick J. Leahy, D-Vt., pontificates that, "This matter can now be more thoroughly investigated, so that those who engaged in criminal conduct may be brought to justice."

Criminal conduct? The Republican staffer who originally found the Democratic memos immediately told investigators he did it. And why not? "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," reports Byron York, Washington correspondent for the National Review.

What's more, there's even a good argument to be made that giving the memos to the press didn't even violate the Senate's Rule 29.5, which has no weight of law, and which bars the disclosure only of "secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees, and offices of the Senate," Mr. York reports. "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."

So what's all the fuss about? The Congress is supposed to conduct the public's business in the open, right?

The reason Democrats are upset is because some of their damning memos were turned over to conservative organizations and newspapers, which printed them as evidence that hyperliberal special interest groups were pulling the strings on their Democratic puppets on the Judicial Committee in order to block the appointment of conservative judges.

Since the Democrats -- thus caught with their pants down -- can't very well continue denying that, they've taken their second best option, going into classic damage control mode, pounding their desks and raising a ruckus about "who leaked our secrets."

So if the leak warrants a major investigation, shouldn't the actions revealed by the memos be the subject of an even more serious inquiry, given that purposely delaying judicial confirmations in order to rig the result of a pending case -- which is just what the memos show the Democrats doing -- actually may be illegal?

One of the leaked memos -- an April 17, 2002, advisory from a staffer to Sen. Edward Kennedy, D-Palm Beach -- detailed how the NAACP Legal Defense Fund was asking Democrats to delay the nomination of Julia Scott Gibbons to the 6th U.S. Circuit Court of Appeals at least until 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."

Smoking gun, anyone?