How Senator Rockefeller Can be Held Responsible for His Role in “MemoGate”

11-28-03

[jmstein7]

How Senator Rockefeller Can be Held Responsible for His Role in “MemoGate”

A Research Outline of Legal Findings

 

    Hopefully, someone who is a member of the bar will read this and take the next step.  Below you will find that I have done a substantial portion of the legal research and theorizing necessary to hold Senator Rockefeller responsible for MemoGate.  This atrocity cannot be allowed to stand.  Note that I did not get into standing or justiciability, but I'm there is a way of finding imminent harm.  I mean, if enforcement of the Partial Birth Abortion Ban can be stayed within an hour of the legislation being signed into law, there must be a way of showing that this grave danger to public safety and welfare is sufficient imminent harm.  If you are unfamiliar with the memo, go to www.intelmemo.com . 

 

1. How Senator Rockefeller is liable
   1. An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment.  Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 756 (1998).

                                    Writing memos to a Senator or his/her (implicitly or explicitly) partisan staff is certainly within the “scope of employment” of a congressional staffer.

                                    Therefore, whether Rockefeller or one of his staffers wrote the memo in question is irrelevant.  Either way, Senator Rockefeller is liable for the memo.

                                    However, it has been held that a corporate employee, e.g., typically acts on behalf of the corporation, not its owner or officer.  Meyer v. Holley, 537 U.S. 280, 286 (2003).

Unlike a corporation, Congress operates in a partisan fashion.

In a corporation, every employee is employed by the whole of the corporation for the benefit of the whole of the corporation.

 In Congress, staffers (employees) work for one party or another, either explicitly or implicitly – e.g. a “non-partisan” staff member drafting a clearly partisan memo intended to advantage one party at the expense of the other is implicitly partisan.

Thus, Congress is not like a corporation for the purposes of respondeat superior.  To wit, Congress is like two corporations in direct competition.

Therefore, a Senator (and/or his/her respective party), must be responsible for the actions of staffers owing their partisan allegiance (implicitly or explicitly) to that Senator.  

                                    Thus, Senator Rockefeller is either directly liable for the memo or vicariously liable for the memo. 

2. Federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities.  Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998).

                                                        This memo is not part of any legislative activities of the Senate Intelligence Committee; construing the memo in the most favorable light, it is, at best, part of investigative activities.

                            Therefore, Senator Rockefeller is not entitled to absolute immunity under this doctrine.

3. The rule is well settled, that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct.  Amy v. Supervisors, 11 Wall. 136, 138 (1871), cited with approval in Bogan, at 51-52

                                    Here, the duty in question is the duty of a Senator to act within the Senate Rules of Ethics; ergo, there is no discretional element, i.e. a Senator may not choose to not follow the rules of ethics.

Senate employees are compensated from funds of the Treasury for regular performance of official duties. They are not paid to do campaign work. In the words of the United States District Court for the District of Columbia: ‘‘It is clear from the record that Congress has recognized the basic principle that government funds should not be spent to help incumbents gain reelection.’’ Senate Ethics Manual, Chapter 6: Political Activity, p.139 (2003), available at http://ethics.senate.gov/downloads/pdffiles/manual.pdf. 

 The drafting of this memo, a direct effort to help Democrats get elected and reelected, is a clear violation, inter alia, of the above rule of ethics.

 Therefore, by drafting this memo, Senator Rockefeller has violated the Senate Rules of Ethics and he is liable “to the extent of the injury arising from his conduct.” 

                                    A Senator on the Select Committee on Intelligence has a ministerial duty to follow the rules of that committee. 

No member of the Committee or of the Committee staff shall disclose . . . to any person not a member of the Committee . . . the contents of any papers or materials or other information received by the Committee . . . . Failure to abide by this provision shall constitute grounds for referral to the Select Committee on Ethics pursuant to Section 8 of S. Res. 400.  Rules of the Select Committee on Intelligence, Rule 9.6 (2001), available at http://www.access.gpo.gov/congress/senate/srules23.txt.

The memo itself states, “we can verbally mention some of the intriguing leads we are pursuing.”

 That is a direct violation of Rule 9.6

Therefore, in drafting this memo, Senator Rockefeller his impermissibly, and unethically, advocated a violation of the committee rules.

As Senator Rockefeller has a ministerial duty to comply with the committee rules, he is liable “to the extent of the injury arising from his conduct.”

4. Thus, Senator Rockefeller is either directly or vicariously liable for the drafting of the memo to the extent of injury arising from his unethical conduct. 
1. The whistleblower (leaker), if any, is protected by the First Amendment
   1. Speech which discloses any evidence of corruption, impropriety or other malfeasance on the part of [elected officials], in terms of content, clearly concerns “matters of public import”.  Pandolfi de Rinaldis v. Varela Llavona, 62 F. Supp. 2d 426, 436 n.18 (D.C. P.R. 1999), citing, e.g., Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988); Breuer v. Hart, 909 F.2d 1035, 1038 (7th Cir. 1990); Brawner v. City of Richardson, 855 F.2d 187, 191-92 (5th Cir. 1988).
   2. Abuse of public office is a matter traditionally occupying "the highest rung of the hierarchy of First Amendment values." Connick v. Myers, 461 U.S. 138, 145 (1983).
   3. The public has a significant interest in encouraging legitimate whistleblowing so that it may receive and evaluate information concerning the alleged abuses of these public officials.  O'Donnell v. Yanchulis, 875 F.2d 1059, 1062 (3d Cir. 1989).
   4. Therefore, the leaker/whistleblower’s First Amendment right to freely speak about Senator Rockefeller’s abuse of office – by making the memo public – can be clearly established.
2. Available Remedy (what can be done) – Mandamus
   1. A Writ of Mandamus is an order compelling a public official to perform his duty
   2. There are two essential conditions for the issuance of such a writ

                                The party seeking issuance of the writ has no other adequate means to attain the relief he desires.  Kerr v. United States Dist. Court for Northern Dist., 426 U.S. 394, 403 (1976).

The stated purpose of the Select Committee on Intelligence is “to assure that the appropriate departments and agencies of the United States provide informed and timely intelligence necessary for the executive and legislative branches to make sound decisions affecting the security and vital interests of the Nation.”

The Select Committee on Intelligence has the awesome responsibility of overseeing the “comprehensive program for the future security of the United States.”  See 50 U.S.C. § 401 et seq.

The memo reveals that Senator Rockefeller intended to use the resources of this committee to conduct political opposition research to benefit the electoral prospects of the Democrat Party. 

Such a diversion of resources for partisan gain impermissibly, and dangerously, reduces the manpower and resources being utilized to ensure the “future security of the United States.”

Thus, the activities proposed by Senator Rockefeller would recklessly create a public safety and welfare hazard (for partisan gain). 

United States citizens have no other means of avoiding this danger than by seeking a write of mandamus compelling the Senate Select Committee on Ethics to investigate Senator Rockefeller’s conduct and the circumstances surrounding the drafting of the memo. 

                                                                    The duty sought to be enforced must be clear and indisputable.  United States v. Duell, 172 U.S. 576, 582 (1899), cited with approval in Kerr, 426 U.S. at 403. 

Both the Senate Rules of Ethics (Chapter 6) and the Intelligence Committee Rules(9.6) clearly confer jurisdiction to investigate on the Ethics Committee and mandate investigation.

Thus, the duty of the Senate Ethics Committee to investigate is clear and indisputable. 

3. Thus, an Article III Court should exercise its discretion and issue a writ of mandamus compelling the Senate Select Committee on Ethics to investigate Senator Rockefeller and the circumstances surrounding the memo.

[jmstein7]

Hopefully, one of you fully trained FReeper Lawyers can use this info and do what has to be done.

[jmstein7]

Need a major Meek-a-Bump!

[reformed_democrat]

Hey Howlin -- I think you'll want to see this.

Nice work, jm.

[sauropod]

This magnum opus plus $0.25 is gonna get me...

What exactly?

[Pan_Yans Wife]

ping

[Libertina]

Evening JM, we are doing a good job of getting out information, but if the Pubbies don't break a sweat over it, it'll be difficult to gain traction. Come ON senators - grow a backbone!

[Judith Anne]

Nice work. I'm still not done being angry, but it's not hot anger any more, it's cold. Rockefeller is a traitor. I will never ever forget that, I will tell everyone with whom I converse, and I will tell them why.

He is harming the country, willing to endanger our safety for political gain. I cannot forgive that.

[jmstein7]

Cornyn and Graham, apparently, will be pushing the issue. But, here is a way to MAKE them do it :)

[jmstein7]

I'm particularly fond of the rebuttal of the "investigate the leaker" Dem talking point:

The whistleblower (leaker), if any, is protected by the First Amendment (which dems are so fond of -- unless it is used against them).

1. Speech which discloses any evidence of corruption, impropriety or other malfeasance on the part of [elected officials], in terms of content, clearly concerns “matters of public import”. Pandolfi de Rinaldis v. Varela Llavona, 62 F. Supp. 2d 426, 436 n.18 (D.C. P.R. 1999), citing, e.g., Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988); Breuer v. Hart, 909 F.2d 1035, 1038 (7th Cir. 1990); Brawner v. City of Richardson, 855 F.2d 187, 191-92 (5th Cir. 1988).
2. Abuse of public office is a matter traditionally occupying "the highest rung of the hierarchy of First Amendment values." Connick v. Myers, 461 U.S. 138, 145 (1983).
3. The public has a significant interest in encouraging legitimate whistleblowing so that it may receive and evaluate information concerning the alleged abuses of these public officials. O'Donnell v. Yanchulis, 875 F.2d 1059, 1062 (3d Cir. 1989).
4. Therefore, the leaker/whistleblower’s First Amendment right to freely speak about Senator Rockefeller’s abuse of office – by making the memo public – can be clearly established.

[jmstein7]

BUMP!

[BOBWADE]

PING

[Tamzee]

Bump :-)

[CGVet58]

excellent! J-man, do you think it would be a good idea to email this to every republican senator and the attorney general?

CGVet58

[yoe]

Senate Select Committee on Ethics
(members)</font color>

There are few on this committee who will tackle Senator Rockefeller, one in particular is Harry Reid. However, every one should write the committee or a member on that committee. I hold little hope of their doing anything about this as they historically protect their own – not the American People whom they are supposed to serve. But by sending a letter or calling their offices, if enough of us do it and ask friends and family to do the same, we may at least get their attention. . The leaders are George V. Voinovich, R - OH, Chairman and Harry Reid, D - NV, Vice Chair.
Thank you jmstein for your work – anyone can bring a lawsuit, but it is the job of the SEC to do what is right. Put their feet in the fire!

[laredo44]

GOP Senators should apply the "Gingrich" standards adopted by House Democrats. Newt was held accountable for a document prepared by his lawyer, which is all well and good. He was also assessed the costs of looking into things. He was also screamed at for attempting to borrow money to pay those costs. So now, JayBoy should be made to pony up.

[MeekOneGOP]

How Senator Rockefeller Can be Held
Responsible for His Role in “MemoGate"

Any Legal Beagles out there ? ...

Please let me know if you want ON or OFF my General Interest ping list!. . .don't be shy.

[MeekOneGOP]

There ya go ! A pingaroo!

Good work. I hope this can be pursued and justice done.
Not holding my breath - though I'd be elated if it IS !

[thesummerwind]

Any Legal Beagles out there ?

I wish I were, but I'm only more like a Bloodhound. Need some sleuthing done?

Rockefeller is anti-American, and is working actively for some other entity, IMHO.

[jmstein7]

Thanks!