(February 2004; 3/6/2004)

GOP Senator Orrin Hatch was lambasted by conservatives and Republicans for the position he staked out in the Judiciary Committee e-mail scandal. A brief recap: a legal counsel to Senator Bill Frist read and circulated e-mails from Democrats outlining strategies to defeat the administration’s judicial nominees. The Senate Judiciary Committee Chairman declared the conduct of Manuel Miranda unethical, and called for an investigation of the conduct of Republican staffers in the incident. The February 6 resignation of Miranda, and his unapologetic defense of his actions intensified the criticism of Hatch by conservatives such as columnist Robert Novak, Rush Limbaugh, and Paul Weyrich.

Now the results of the investigation are in. The “Pickle Report” (engagingly named for the Senate’s sergeant-at-arms, William H. Pickle, reveals how Miranda and a subordinate figured out how to access Democratic files and documents through a flaw in the Judiciary Committee’s computer system. The initial caper by a GOP staff member, Jason Lundell netted over 100 pages of Democrat materials and correspondence relating to the judicial nomination of Charles Pickering Sr.

A clear-thinking staff supervisor apparently stepped in at that point, condemned the activity, reprimanded Lundell, and destroyed the documents. But ethical supervision ended when attorney Miranda joined the staff in December of 2001. Working with the enterprising clerk, Miranda oversaw the routine exploration of Democratic files, tapping into 4,670 over 18 months.

The report should make it clear just how wrong Hatch’s critics were. He is an ethics hero, one who deserves to be cheered by anyone, liberal or conservative, who wants to elevate the ethical climate in this country. His detractors are defending ethically indefensible conduct…reading other people’s mail, essentially…because of what the indefensible conduct uncovered, namely, that Democrats on the Judiciary committee were engaged in some dubious tactics to defeat President Bush’s judicial appointments.

“Sometimes, because of the partisan politics in both sides, people think that anything goes,” Hatch has said. “Well, anything doesn’t go.” Senator Hatch is saying that the end does not justify the means, that an unethical action does not become ethical retroactively just because it uncovers another unethical or even an illegal act. This is a difficult ethical principle but an important one, and Hatch is courageous to stand up for it so publicly and unequivocally.

Meanwhile, attorney Miranda’s defenses of his actions amount to blatant rationalizations, and disturbing ones. Even more disturbing is the number of conservatives that continue to defend him, and by doing so, embrace a rejection of ethical norms.

He justifies his unethical behavior by saying “no laws were broken,” what Ethics Scoreboard calls “the Al Gore Fallacy.” Many activities that violate no laws are terribly unethical; this was one of the lessons of Enron. As a lawyer, Miranda well knows that ethical violations often don’t violate any law. But it gets worse: in his statement he put the blame on the Democrats who wrote the memos, saying,

“The bottom line here is that the technology staff of the Democrats was negligent. They put these memos in a shared hard drive. It was like putting the memos on our desk.”

This is an offensive argument. The real bottom line here is that Miranda knew that the memos were not intended for him, and read them anyway. That’s unethical. If someone leaves a memo on your desk, it is reasonable for you to believe they intended you to read it. That wasn’t the case here.

Particularly objectionable is Miranda’s claim that “legal ethics” permits him to read an inadvertently transmitted confidential document. First of all, he’s wrong about that. Virtually all states and the District of Columbia hold that if a lawyer receives such material and knows it isn’t intended for him, he should not read it and should inform the person who sent it. And there’s no exception about leaking such materials to the Wall Street Journal. Second, legal ethics have nothing to do with this incident, which isn’t a situation where the special rules governing lawyers apply. This is a situation where common decency, honesty, and ethical principles like the Golden Rule apply.

All Americans owe a debt of thanks to Senator Hatch for having his values in order, and having the courage to act on them even when it runs counter to the political interests of his own party. If we give our elected officials the message that we appreciate and reward ethical conduct, we’ll get more of it. As for the conservative zealots who continue to defend Miranda and his accomplice, it’s time to get back to basics. Their ideological fervor has caused them to lose sight of the very values they claim to be defending. Once they come to their senses, they owe Senator Hatch an apology.