The Ethics of Memogate
By Manuel A. Miranda
June 23, 2004

So what exactly made reading political documents left unprotected on an open server, which were not confidential under Senate rules, in any sense wrong? But for lack of statutory protection for congressional staff, what made it different than an ordinary whistleblower situation - seeing something not intended for your eyes?

Hill staffers, particularly Republicans, learned sad lessons in Memogate, and made political mistakes, but what were the countervailing ethics of the story?

For many observers, Memogate was not about reading opposition papers; it was about the ethics of senators showing no loyalty down. If the greatest and perhaps oldest ethic is "do no harm." How ethical were staffs and senators who placed subordinates needlessly in jeopardy. As in all things, the powerful and rich are judged by how they treat the much less so. What ethical judgment can be made of those who chose expediency over ethical justice?

And then there is the ethics of Senate Sergeant-at-Arms Bill Pickle, who before his report was half way done, thought it appropriate to urge my employer to "throw me over." In addition to being without proper authorization under Senate laws and conducted inconsistent with Senate rules, or even basic constitutional rights, Pickle and his deputy, Al Concordia, directed an investigation both unethical and politically biased.

What, if not at least bias, would one call an investigator who describes former White House counsel C. Boyden Gray as "radical right wing?"

What are the ethics of a report that contains nine unsupported conclusions of law or fact; 20 instances of bias; 22 instances of false inferences; 15 examples of preferences; 14 incorrect facts; 15 embarrassingly negligent statements; ten examples of internal contradictions; 23 instances of major omissions; and 14 half-truths. What of the ethic: "do no harm?"

What about the reading of documents? For Patrick Leahy (D., Vt.), it was criminal. But years spent prosecuting cow-tippers in Vermont doesn't train a legal mind. Orrin Hatch (R -Utah) has said consistently that it wasn't criminal. That may relieve his guilt, but it doesn't give much comfort. No Republican senator has sponsored more laws later held unconstitutional than Hatch. Fortunately, in this case, the Supreme Court disagrees with Leahy.

If not unlawful, what then? Acting, no doubt, ethically, Doorkeeper Pickle told the Associated Press, before his investigation was completed, that it was "improper." Although a lawyer, Hatch published that it was "unethical" before the investigation even began. But under what code; under what theory?

Ethics is not dull etiquette. It is defined as the science of duty, and as with all science there is a method. Norms are either encoded or may be discerned under two theories: duty and consequence. The first asks: is there a duty and to whom is it owed? Consequence theory queries: is someone harmed or benefited? An action is ethical if its consequence is more favorable than unfavorable.

Leaving aside Dick Durbin's (D., Il) campus hysterics about being a "victim" or Hatch's ever self-serving "we are all victims," harm/benefit analysis in Congress must be in the context of the people's interest, as legislators do when they enhance whistleblower laws. This will come as a shocker to Durbin and Hatch, but it is not all about them.

The public harm and benefit of reviewing political documents evidencing corrupt practices, as the Democratic judiciary documents do, is plain. But was there an applicable rule? No. Hatch knew early on that no Senate rule was violated. Pickle and Concordia seemed to think that disclosure of Democratic documents was improper. How else could they justify attempting to circumvent the First Amendment and the Senate's policy of open access to information? But they were wrong.

The Senate disclosure rule does not protect base political documents. Neither does the Supreme Court. Pickle erred also on the only material fact: disclosure occurred, not when Democratic documents were published in the press, but when they were published through carelessness on an open server; including the negligence of Pickle's own office, charged with technology training.

If not a Senate rule, what then? Not a legal ethic. Only a great public interest can overcome the obligation lawyers have to be "zealous" in their cause. Exceptions apply concepts entirely inapplicable to public service. There is no attorney-client confidentiality in Congress. The Code of Ethics for Government Service states plainly that government employees owe no duty to persons or parties. Staff works for the people and for Congress. This is why it is said that staffers are "assigned" to particular offices.

Republican staff owed no duty to Democrat senators. In fact, the Code imposes a duty to disclose evidence of corruption "wherever discovered." Congress may have no whistleblower protection, but it maintains a whistleblower duty.

In final conversations, Hatch agreed with me that no ethical rules were violated but resorted to something about "Hatch ethics." Yet remarkably, in both conversations, Hatch urged that more Democrat documents would be made public. He did the same with other staffers.

But let's assume arguendo that Hatch is not a hypocrite. In time, he came to state two worthwhile norms. First, he reminded reporters that gentlemen do not read other gentlemen's mail. This etiquette is attributed to Henry Stimson who organized the precursor to the C.I.A., a fact that suggests the limits of etiquette, and of shallow ethics.

The second Hatch ethic was more revealing. In Committee meetings, he restated the golden rule: we should do to others what we would want others to do to us. I knew, upon hearing this, the solipsistic quality of Hatch's thinking and just how misguided the situation was. The golden rule is indeed a great private ethic, but one that cannot guide those charged with public duty.

A story is passed down among Hatch staffers of Hatch, accompanied by an aide, discovering a certain senator in flagrant with a woman not his wife. Though we know the adulterous senator, to my knowledge we have not leaked it. That is an application, though some might think unfair to the wife, of the golden rule. That is an entirely private matter. The same cannot be with public issues presented by the Democrat memos, or any Republican memos of a similar ilk.

Ethics is worthy of debate, and so I challenge Senator Hatch to debate me publicly on this issue and prove to folks in Utah that 30 years later he has not come to abuse power, or to hide in Senate corners.

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Manuel A. Miranda is former counsel to Leader Bill Frist and Chairman Orrin Hatch. He is chairman of the Ethics in Nominations Project.

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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.