Monday, May 16, 2005

Add confidential FBI files that aren’t supposed to be discussed publicly to the list of things Democrats will use to try to block President Bush’s judicial nominees. Speaking on the Senate floor last week, Minority Leader Harry Reid referred to “a problem” in confidential files on Michigan Appeals Court Judge Henry Saad. “All you need to do is have a member go upstairs and look at his confidential report from the FBI, and I think we would all agree that there is a problem there,” he said. In so doing, Mr. Reid brought the battle over the president’s nominees to a new, character-assassinating low. But if Mr. Reid has been following the rules, he hasn’t even seen the files. He only knows about them through hearsay, some perfunctory news articles in the Detroit Free Press and the Gannett News Service a year ago or an apparent mistaken Internet broadcast of a Judiciary Committee hearing on Judge Saad.

The question in conservative circles now is whether Mr. Reid’s remarks violated the standing rules of the Senate. The text of the relevant reads thus: “Any Senator, officer, or employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees, and offices of the Senate, shall be liable, if a Senator, to suffer expulsion from the body; and if an officer or employee, to dismissal from the service of the Senate, and to punishment for contempt.” This is clearly written to discourage the disclosure of confidential material, including FBI files. Whether Mr. Reid violated its letter is a matter Senate experts on the rules are now considering. Clearly Mr. Reid violated its spirit.

It’s worth pointing out that Judge Saad can’t respond to the charges, since he can’t see the files either. Any public figure’s confidential FBI files contain raw data, including gossip, innuendo and much uncorroborated material. It is confidential for good reason. Leaks of FBI files on Clarence Thomas convinced the Senate to restrict access after they turned Justice Thomas’ Supreme Court confirmation hearings into a media circus. Currently, only a nominee’s home-state senators and the members of the Judiciary Committee may see them.

“Senator Reid is hitting below the belt to make such an assertion and innuendo that there is something criminally wrong with an individual nominee,” Republican Sen. George Allen said on Friday. Mr. Reid’s smear stands in the public record. It’s no wonder many good people decide against holding public office.

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