February 9, 2004
Departure Statement of Manuel A. Miranda
Today I announce my departure as Counsel
to the Senate Majority Leader, Dr. Bill Frist. I have departed
so as not to distract the Leader from pursuing a needed legislative
agenda for the American people. My departure will also allow
me to speak freely and seek to return the focus of the Democrat
documents investigation where it should have stayed --- on the
substance of the Democrat documents themselves and the abuse
of the public trust that they spell out, both the few that are
public and the many that remain unpublished and are now in the
possession of the Sergeant at Arms.
I served the Leader as counsel on civil
rights, religious liberty, immigration, higher education, as
well as an advisor on outreach to the Hispanic, Catholic and
Jewish communities. I regret that I will not be working this
year to make viable the Leader's commitments to immigration and
in these other areas.
I served also as his counsel on judicial
nominations and I walk away with pride in last year's accomplishments
in communicating to the American people, in an unprecedented
manner, the significance of the Senate's advice and consent role
and the importance of an independent judiciary. I am especially
proud of my work on three historic Senate floor events, including
the planning of the 40-hour grand debate on judges. I am pleased
with our teamwork on developing the various 51-vote options that
the Leader may some day use to correct the abuse of the filibuster.
I am especially glad that I treated the judicial nominees with
compassion and not as numbers on the Senate calendar. I expect
that the Leader will not diminish the amount of regular, scheduled
Senate floor debate spent on judges in the year to come.
I would like to take a moment to thank
all those who have expressed their support for me in these past
few days, especially the Senators who have called me at home
to express support and concern for my family. I am especially
grateful to all the GOP Senators with whom I have worked. In
particular, I am grateful to each of the Republican members of
the Judiciary Committee and their counsels and staff. These Senators
and their staff share with me both passion and compassion for
the well-meaning public servants who fall victim to carefully
planned distortions and lies as their reward for accepting a
nomination to serve on our federal courts.
* * *
A number of reporters have sought in
the past few days to gain an insight into Bill Frist and the
Leader's office. I take this rare opportunity to address that.
As with all clients, the Leader sometimes took my counsel and
sometimes did not. I certainly had the opportunity to take the
measure of the man. I have had the privilege of working with
all 51 GOP Senators and they fall into many categories. Senator
Frist falls into the category of a statesman and volunteer. He
is truly someone not motivated by partisanship or interested
in rancor. Dr. Frist is a leader unmoved by base ambition but
eager to be of service to the patient before him.
Last year, the Leader asked me to shape
a Hispanic agenda for the Senate. I told him that his legislative
agenda was a Hispanic agenda: a secure homeland, more jobs, better
health care, and lower taxes that help not only families, but
also the growing number of Hispanic-owned small businesses that
are included in what Democrats often describe as the wealthiest
I trust that Senator Frist will continue
to pursue the politics of passion. Likewise, while colleagues
do not always agree, I cannot think of a more talented and hard
working group of men and women than the Frist Tennessee and Leadership
I would like to state also my respect
for my former boss, Senator Orrin Hatch. He and I share a passion
for religious liberty and toleration. He has bestowed on me honors
that I will long recall. But regrettably he and I have disagreed
on the propriety of my reading Democrat documents that are the
subject of investigation. I believe that he is ill advised on
the computer law and legal ethics in question, particularly in
the adversarial and non-collegial environment over which he presides.
Yet my affection for him is not diminished.
I would have welcomed the opportunity
to make my case before the Senate Ethics Committee and I made
that clear. But I look forward to the publishing of the Pickle
report so that I can do so more publicly. I came forward over
two months ago, even before the Democrat documents investigation
formally began to volunteer needed information. I did so to save
time and money. I regret that this option was not exercised.
I also question why this inquiry was directed (by Democrats initially)
at the office of the Sergeant at Arms that has never previously
conducted such an inquiry. I question events that have contaminated
and stifled the investigation, and certain improprieties of the
investigation toward me from the first day I met with the investigators
up to most recent times.
And finally, in the time that this investigation
has been going on my baby has doubled in body weight, but the
Pickle investigators have yet to interview all the staff with
access to the computers in question.
In brief, when I worked on the Hatch
staff a young colleague brought to my attention that we could
freely access documents from the Judiciary shared network on
our desktops through an icon called "My Network Places."
Although I never discussed this with any other colleagues, I
knew that other Hatch counsels and staff came to know about the
glitch and that some had concluded that the access was not unlawful.
I determined for myself that no unlawful,
unauthorized hacking was involved in reading these unprotected
documents. I knew that in law the duty falls on the other party
to protect their documents. I also considered and studied the
propriety or ethics of reading these documents. I knew that in
legal ethics there is no absolute prohibition on reading opposition
documents inadvertently disclosed and that these ethics are stricter
than our situation in government service. I knew that there is
no privacy expectation to documents on a government server, documents
that are regularly backed up and stored in a government facility.
I knew that these were not confidential or classified documents.
I knew that I was not in a relation of confidence to the Senators
or documents in question.
Finally, I was told that the Leahy staff
had been informed of their negligence, which solved the only
possible ethical consideration left to me. In short, they did
nothing to protect their documents, as the law requires, either
before orr after being informed, and in an obviously adversarial
I have recently studied the Code of Ethics
of Government Service. In my opinion, a prohibition on the reading
of such documents would signify duties and obligations antithetical
to the letter and spirit of the Code.
While Democrats are using colorful analogies,
I concluded that these unprotected documents were virtually placed
on our desks. From a technology point of view, they were at most
left in a common area. Although I came to learn how to access
two or three of these files easily enough, I did so few times
and initially to ascertain that Democrats could access Republican
files as well. I learned that my young friend could take steps
to protect our files locally while the Democrat staff got around
to protect all files system wide.
I have recently come to learn that the
young staffer preserved perhaps thousands of documents on his
hard drive. I did not. I believe that his intention was personal
and benign. I understand that he actually read less than 5% of
the material he preserved. My understanding is that I read only
a small percentage of that 5%. My interest was solely in
nominations-related documents so as to learn when hearings would
be held so that
we could prepare. This was information needlessly withheld from
us from the Leahy staff but communicated freely to liberal outside
groups so that they could prepare distortions and plan their
attacks on judicial nominees.
Almost all the material I came to read
was historical and already a matter of record. Some documents,
however, recorded collusive, partisan considerations in the confirmation
process, and much worse. Only a small amount of these have been
made public. The ones made public are the least indicting of
the documents I came to see.
From its outset, I have considered the
second prong of the Hatch investigation on who disclosed these
documents to newspapers ridiculous and a great waste of government
resources. That moment of disclosure occurred through the inadvertence
of technology staff. But more importantly, Senate rules do not
protect these sorts of documents. Democrats were clever in turning
this matter into a Washington "leak investigation"
and even now the press continues to misuse the word. Someone
should have researched the rules before spending taxpayer money.
The Senate disclosure rule, carefully
expanded in the aftermath of the unlawful Democrat disclosures
in the Clarence Thomas nomination, makes it clear what is and
is not subject to protection. The expanded language was well
explained by then Majority Leader Mitchell in his October 8,
1992 statement in the Congressional Record. In that statement,
Senator Mitchell begins: "it is the fundamental policy of
the Senate to favor openness and
public access to information." The legislative history then
goes on to list the three carve-outs to this policy, and the
offices expressly covered by this rule. Protection against leaks
applies to national security, investigations, and internal inquiries
This was never a leak situation. Rather
than a few newspapers, it would have been entirely proper to
make these documents amply available to the press and hide nothing
from the American people. Collusive, partisan documents of individual
the party caucuses were oddly enough not covered by the 1992
rule expansion because violating the public trust is not the
business of the United States Senate.
Finally, among the great ironies in this
matter is that the two Senators most vocal on this matter are
currently under investigation for unlawfully leaking truly classified
material, while Senator Leahy's history of leaks is pandemic.
Again, thanks to all those who understand
the nature of the fight for the independence of the judiciary
and the reputations of unfairly treated men and women.