WASHINGTON -- Although Senate Sergeant-at-Arms William Pickle's investigation into GOP surveillance of Democratic Judiciary Committee communications from 2002 to 2003 is not yet complete, Republicans are preemptively trying to head off any criminal charges or even ethics complaints in the Senate or the D.C. Bar.
The Committee for Justice, headed by C. Boyden Gray, a former senior White House counsel during the first Bush administration, this week began circulating a "fact sheet" arguing that no rules or laws were broken by Republican staffers who exploited a computer glitch on a shared server that allowed them to access memos written by their Democratic counterparts without having to enter a password.
However, Democrats, including Beryl Howell, a former general counsel for the Judiciary Committee who left the Hill a year ago and now runs the D.C. office of the cybersecurity consulting firm Stroz Friedberg, were quick to dispute each of the major points advanced by the Committee for Justice.
The opening salvos in the argument over the law and ethics are revealing because they frame whether Republican staffers, whom the Pickle investigation is likely to identify as knowing about and exploiting the glitch, will be vulnerable to punishment that could include firing, disbarment, or even a year in prison.
The argument advanced by the Committee for Justice is that the behavior did not violate the Computer Fraud and Abuse Act of 1984, which makes it a criminal act to exceed one's authorization to access a government computer. It said staffers "were entitled to access their own desktop computers and committee network on which the documents were inadvertently disclosed" by the mistake of a Democratic technician.
Said Howell: "Just because you can do it doesn't mean it's right, doesn't mean it's ethical, and doesn't mean it's legal."
The group also emphasizes a new assertion that a Democratic technician was told about the problem in mid-2002 but failed to repair it. Democrats say they were never informed. Under certain legal ethics guidelines, a lawyer who inadvertently receives confidential materials must inform the other side.
The Committee for Justice also argues that there is no expectation of privacy for materials stored on a government server because "such documents are automatically stored on tapes and archived in a federal facility" and "staff was advised to keep documents they wanted to better secure on their hard drive."
Democrats said, however, that the culture of Capitol Hill is such that staffers' work product for their senators is private.
However, cautioning that she needed to do more research, Howell said the Committee for Justice might be correct that the memos do not count as "confidential" materials for the purposes of a Senate nondisclosure rule.
Asked to respond to the "fact sheet," a number of Democratic Senate staffers referred to a statement last November by Judiciary chairman Orrin Hatch, Republican of Utah, after he conducted his own preliminary probe. He said he was "mortified that this improper, unethical, and simply unacceptable breach of confidential files may have occurred on my watch."
The memos make it clear that outside liberal interest groups do much of the research on judicial nominees for Democrats and influence their decisions about which ones to try to block. That outside influence, Republicans have said, is unethical. In one, a staffer wrote that former nominee Miguel Estrada should be targeted in part because of his race, which might make him difficult to block from a later promotion to the Supreme Court.
Democrats said some memos were unsent drafts and that the GOP has exaggerated their meaning. For example, in one, a staffer says the NAACP requested that none of President Bush's nominees to fill vacancies on the Sixth Circuit Court of Appeals get a hearing until after that court finished with a landmark affirmative action case. However, then-Judiciary chairman Patrick Leahy, Democrat of Vermont, scheduled a prompt hearing for a Bush nominee to that circuit anyway.
One Senate staffer said that the memos had offered little concrete help to those who were secretly reading them.
"Basically, for most people, they were historical -- about events that already happened," the staffer said, speaking on condition of anonymity.