Jack Shafer’s article in Slate on media reporting of the Senate Judiciary Committee memo scandal, highlighted by Eugene below, is definitely worth a read. He points out how much of the coverage, especially that in the Boston Globe, has been way overblown. Shafer’s bottom-line: The Senate staffers’ actions may have been wrong, and perhaps even deserving of censure, but they are hardly the “crime of the century.” Indeed, there is no allegation that anyone surreptitiously gained access to another staffers computers through hacking or another nefarious means. [Note: Contrary to Mathew Yglesias’ suggestion, Senate staffers did not “break into” Democratic staff computers, nor does Shafer say that accessing the files was “okay.”]
Shafer also makes the broader point, a point which merits underlining, that the decision of some media outlets to focus on the acquisition of the memos, rather than their content, is quite out of character. As Byron York noted, in a piece Shafer cites approvingly, “One might expect most journalists—normally the recipients of leaks and protectors of leakers—to be more interested in what the documents say than in how they were obtained. “One might expect most journalists—normally the recipients of leaks and protectors of leakers—to be more interested in what the documents say than in who leaked them.”
As evidence for this point, consider that illegally or unethically obtained documents have often surfaced in the context of judicial nominations. Last year, Senate Democrats sought to use stolen documents to impugn the integrity of 11th Circuit nominee William Pryor. Most news accounts focused on the allegations, not how they became public. Similarly, when Clarence Thomas was nominated to the Supreme Court (but before the Anita Hill story broke) someone on the U.S. Court of Appeals for the D.C. Circuit leaked Judge Thomas’ forthcoming opinion in a controversial case to the press, a clear violation of the code of judicial conduct. The draft opinion made lots of news, but there was little, if any, discussion of how the unreleased opinion made it into the hands of the press.
In the end, Shafer “can’t help but think there’s a journalistic double standard operating here in which partisan leaks to conservative journals and journalists . . . are treated as capital crimes, but partisan leaks that wound Republicans are regarded the highest form of truth telling.” He may be right.
UPDATE: The Frozen North takes issue with my post, but but I take issue with his characterizations of the underlying facts and their implications.
For additional background, the GOP staff snooping involved accessing Democratic files by clicking on the “My Network Places” icon on the Windows desktop and accessing unsecured, unprotected files on the network drive. There was no hacking, no stolen password, no accessing of individual Democratic staff computer drives. If we’re getting into analogies, this is not like walking into someone’s unlocked office and copying their files, but rather like copying files left out in a common area. This does not mean accessing the files was not a slimy thing to do, but I do believe it affects just how slimy it is – and may make all the difference legally. Moreover, as I understand it (and contrary to the Frozen North’s claim), a Republican staffer did let Democratic staff know about the security hole, but it remained unfixed for months. Again, this doesn’t mean copying the memos was not slimy, but it makes the allegations less severe.
I also think Frozen North’s spin on the official Republican response is off. Unlike that of some outside conservative groups, the official GOP response has not simply been to say “that’s what you should expect, etc.” Staffers were placed on leave and when the Democrats asked for a formal investigation, the Republican Committee Chairman gave them one without delay. While it increasingly appears there was no illegal conduct, and it is still possible that one or more of the staffers involved will be punished for violating ethical standards, if not Congressional rules.
Finally, I would note that it is not Democrats who Jack Shafer or I critique for making this a “big deal,” but journalists. Journalists are typically the first to ignore the seamy ways in which secret information is obtained in favor of celebrating its content. The departure from this norm is particularly noticeable here because, unlike in the other cases I noted, there was no clearly illegal conduct involved. In other words, I would expect the Democrats to be outraged (as would the Republicans were the shoe on the other foot), but I would also expect more media coverage of the memos content.
RELATED NOTE: I blogged on the substance of the memos, and the resulting allegations of ethical improprieties by Elaine Jones of the NAACP Legal Defense Fund, here and here. In a nutshell, some of the memos suggested Jones sought to delay nominations in order to affect the outcome of a case in which the Fund was a party, prompting several right-wing groups to file a complaint with the Virginia State Bar. Since the allegations were first made, Jones has announced her retirement from the Fund. Some readers have e-mailed suggesting a connection, but I am not so sure. At this point, I believe Jones’ conduct, if it was as is alleged, was certainly unethical, but is unlikely to result in any formal sanctions.
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