On November 14, 2003, the Wall Street Journal published an editorial containing excerpts from memoranda to Senators Edward Kennedy and Richard Durbin concerning strategies for blocking the confirmation by the Senate Judiciary Committee of judicial nominations made by President Bush. The editorial sparked a controversy that became known as Memogate. A central figure in Memogate is Manuel A. Miranda, a Republican Judiciary Committee staffer who became Judicial Affairs Counsel to Senate Majority Leader Williams Frist.
This diary provides a glimpse into the ongoing investigation of Mr. Miranda and his attempts to block that investigation through a civil action filed in the United States District Court for the District of Columbia.
Senator Orrin Hatch directed William Pickle, the Senate Sergeant at Arms and Doorkeeper (the "SAAD") to investigate and determine who had "leaked" the Senate Judiciary Committee documents and to determine whether any crime had been committed. The four-month investigation led to the publication of the Pickle Report. The Pickle Report contains a detailed examination of the activies of Mr. Miranda and another former Republican Judiciary Committee staffer, Jason Lundell.
The Pickle Report was referred for further investigation and potential criminal prosecution to the U. S. Department of Justice. The Department of Justice, in turn, assigned the matter to the Acting U. S. Attorney for the Southern District of New York.
In an attempt to foreclose further investigation and prosecution, Manuel Miranda filed a civil action against then Attorney General John Ashcroft and W. Ralph Bashman, Director of the U. S. Civil Service. The complaint seeks "a declaratory judgment that plaintiff did not violate certain laws of the United States, namely Section 1030(a)(2)(B), Section 641, and Section 1001(c) of Title 18, that certain of these laws are unconstitutional, or unconstitutional as applied to the Plaintiff, or nonjusticiable, and that Plaintiff is immune from prosecution, or testimony under these laws pursuant to the Speech and Debate Clause." Mr. Miranda then filed for a temporary restraining order and preliminary injunctive relief, including an order "that the Defendants and any grand juries under their control be, and hereby are, enjoined from investigating, indicting, or prosecuting the Plaintiff for any matter arising out of the Plaintiff's service to the United States Senate..."
Judge Gladys Kessler denied the application for a TRO on October 1, 2004, on the grounds that (1) Mr. Miranda could not show a substantial likelihood of success on the merits, (2) Mr. Miranda did not allege irreparable harm with sufficient particularity, and (3) a strong judicial policy advocated against intervening in ongoing criminal investigations or prosecutions. The request for preliminary injunctive relief was denied on similar grounds on November 15, 2004.
Filings made by counsel for Manuel Miranda show that the investigation is ongoing. The court papers state, on information and belief, that investigators for the U. S. Attorney "seized and copied the computer files and other records of radio and internet journalist Kay Daly, who is President of the Coalition for a Fair Judiciary, the organization whose website posted some of the Judiciary Committee memos that are the subject of this litigation." The same filing also states: "So far Defendants have intimidated at least one journalist and a stay-at-home mother, one young man who runs a media operation and website, and a score of Senate staffers..."
This suggests to me that the U. S. Attorney is pursuing individuals who did not cooperate in the SAAD inquiry. The Pickle Report states that Kay Daly, Sean Rushton, and C. Boyden Gray did not agree to be interviewed as part of the SAAD inquiry.
The complaint filed by Manuel Miranda ultimately was dismissed by Judge Kessler. Manuel Miranda filed an appeal of the ruling to the Court of Appeals for the D. C. Circuit. The U. S. Attorney filed a motion for a summary affirmance which is pending.