- The Washington Times - Wednesday, December 3, 2003

Recently, several memos drafted by Senate Democrats have been leaked to the press. One memo, from the Intelligence Committee, exposes a Democrat plan to use the awesome power and resources of that committee as a political weapon against the president. The other memos detail how powerful left-wing lobbyists pressured Democrats to impermissibly oppose judicial nominations based on race and gender. Now the Democrats are outraged — because they got caught. Senate Democrats have demanded a probe into these leaks; their request has been granted by detrimentally congenial Republicans. The investigation notwithstanding, if the leakers are dismissed, they may have actionable claims against the government.

The Supreme Court has established three tests for the infringement of a public employee’s First Amendment rights. According the court in Connick vs. Myers, a court must first ascertain on the basis of “the content, form, and context of a given statement,” whether the employee was speaking “as a citizen upon matters of public concern … [or] as an employee upon matters … of personal interest.” The leaked memos reveal plots to misuse government resources for partisan gain and schemes to violate judicial nominees’ civil rights. The Courts of Appeal for the 5th, 7th and 10th Circuits have held that substantive disclosures of corruption, impropriety or other malfeasance by public officials are clearly matters of public concern. The Supreme Court, in Connick, averred that abuse of public office is a matter traditionally occupying “the highest rung of the hierarchy of First Amendment values.” Thus, a court could reasonably find that the leakers’ “speech” — in the form of the memos — was that of citizens “upon matters of public concern.”

The second test, established in Pickering vs. Board of Education, involves balancing “the interests of [the speaker], in commenting upon matters of public concern and the interest of the [government] … in promoting the efficiency of the public services it performs through its employees.” The memos disclose serious abuses of public office, which weigh strongly in the leakers’ favor. As the 3rd Circuit stated succinctly stated in O’Donnell vs. Yanchulis, an employee who accurately exposes rampant corruption in her office no doubt may disrupt and demoralize much of the office. But it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle … The point is simply that the balancing test articulated in Pickering is truly a balancing test, with office disruption or breached “confidences” being only weights on the scales.

While there is a strong public interest in exposing impropriety at the highest levels, Senate Democrats have not identified any legitimate interests reflected in the substance of the leaked memos or legitimate interests in hiding such information from the public. The reason is that there probably are no legitimate interests. This test heavily favors of the leakers.

The third test, merely a formality here, is one of causation. The leakers, according to the court in Mount Healthy vs. Doyle, have to demonstrate that the leaks were a “substantial or motivating factor” in their dismissal. This is a mere tautology — the leakers would only be dismissed as a result of an investigation into the leaks. Senate Democrats, thus, have the impossible burden to demonstrate “by a preponderance of the evidence that [they] would have reached the same decision [to fire the staffers] … even in the absence of the protected conduct.” It is important to note that the memos weren’t “hacked” or “stolen” — due to an error committed by the Democrats’ own IT personnel, the memo files were accessible to all.

If the Senate fires staffers for leaking memos revealing how Senate Democrats abused, or planned to abuse, their positions as senators, the staffers will likely have a cause of action against the government based on First Amendment rights. Such action will get to the substance of the memos. The Democrats will bear the burden of defending the substance of their memos — an untenable position that includes defending the unprecedented filibusters of highly qualified minority nominees because powerful far-left interest groups merely want to deny Republicans the perceived political capital associated with appointing minorities to the federal bench.

Instead of acceding to the Democrats’ deceitful game of investigating the cops for catching the robbers, the Senate should be investigating the Democrats for abuse of public office.

Jonathan M. Stein is a staffer at the Hofstra University Law Review.

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