Manuel Miranda Was Not the Only Bad Apple in the Scandal Known As Memogate

Manuel Miranda, one of the more notorious attack dogs attempting to derail the Sotomayor nomination, remains the only lawyer permanently tainted by the scandal known as Memogate, involving the theft of 4600 confidential Democratic computer files. This is largely because the GOP was remarkably effective at burying the story. Though there was evidence implicating others, the media bought into the "few bad apples" narrative. Here's another saga of how the GOP curtailed an investigation into the scope of its corruption.

The AP headline encapsulated Orrin Hatch's successful efforts at damage control. "Report on stolen Senate files cites two staffers, lax security," it said, referring to a low level clerk named Jason, who confessed everything, and a defiant Republican lawyer, Manuel Miranda, who was caught red handed. And the lax security was no innocent oversight.

As Jason told investigators, "Everybody knew." By "everybody," Jason meant other Republican lawyers who were put on notice that Democratic files could be invaded without leaving fingerprints. And the actions of Senator Hatch, the White House and the Senate Sergeant at Arms all point to a cover-up.

The Setup

The dirty tricks began one day in the fall of 2001, when Brian, the new systems administrator for the Senate Judiciary Committee, came by to Jason's workstation and showed him how to do something on the committee's Windows NT network. Jason saw what would happen if he accessed "My Network Places/Entire Network/Judak" and became intrigued.

After Brian left, Jason tried to duplicate Brian's actions. Jason soon realized that he could invade the confidential home directories, or H: Drives, of other users on the committee's LAN. Some H: Drives were unprotected, and some were not. Only the files in user accounts set up by Brian could be invaded. User accounts set up by other systems administrators, those who preceded and followed Brian, were adequately protected with "strict" permissions on the Windows NT H: (home) drive. Since Brian opened user accounts with "open" permissions, the new users probably believed that files stored on their H: drives were secure, when in fact anyone else on the network could invade them.

After poking around, Jason printed out between 100 and 200 pages of confidential Democratic documents. He presented them to his bosses, Rena Comisac and Alex Dahl. Comisac seemed pleased and thanked Jason. Two days later, Comisac and Dahl advised Jason to shred and delete his copies of the documents. Neither Comisac, a former Federal prosecutor, nor Dahl, a deputy staff director and senior counsel to Orrin Hatch, asked about the documents' provenance or about possible breaches of computer security.

Comisac didn't ask any questions 18 months later, when she acquired other confidential Democratic documents, pilfered by Jason, by way of Mitch McConnell's counsel. Comisac handed over copies of those documents to investigators in February 2004.

As it turned out, Comisac and Dahl were not the only ones conspicuously lacking in curiosity. William Pickle, the Senate Sergeant At Arms, tasked with investigating the computer security violations, never asked exactly what went on between Brian and Jason during that first fateful meeting at the workstation. Did Brian intentionally show Jason a gap in the network security? Did Jason figure it out on his own, withholding the information from Brian? Readers of the report have no idea. Pickle's report is a masterwork of obfuscation, relying heavily on vague pronouns, passive verbs, and indefinite tenses.

The "Innocent Mistake"

Brian, whose lapses enabled Jason to eventually steal 4,600 Democratic documents, may or may not have been one of those very smart kids who made a dumb mistake. A recent Phi Beta Kappa grad from U.C. San Diego, where he had been web editor of his college newspaper, Brian had a knack for computer technology. In later years, he would intern at Sun Microsystems, and write about copyright law and digital technologies for the Santa Clara Law Review, where he was Editor-in-Chief. As an associate at DLA Piper in California, he would work on litigation relating to computer hard disk drive technologies, user interfaces, and computer architecture. But in November 2001, Brian was just a systems administrator who compromised the computer network, because no one was looking over his shoulder.

In fact, Brian made sure no one would be looking over his shoulder. During his two years working for the committee, he attended only two technical training classes, neither relating to the NT Administration. In February 20, 2003, when Brian ordered new hardware, he declined to schedule a pre-installation meeting with the office of the Sergeant At Arms, or SAA, which oversees the entire IT function of the Senate. He also declined the SAA's offer to configure the system. Brian insisted that the equipment be delivered in its original boxes, and that he would handle the installation himself.

Had the SAA configured the system, it would have noticed another big mistake. The network security log had not been properly set up, and consequently no breaches of in security would ever be traceable. Investigators could find no electronic record of who had invaded Democratic files.

The Others Who Knew

Shortly after Comisac advised him that "we don't do that short of thing here," Jason was befriended by a new Senate staffer, a lawyer who had specialized in international project finance at White & Case, one of the most prestigious firms in the country. The lawyer, Manuel Miranda, assured Jason that, the remonstrations by Comisac and Dahl notwithstanding, everyone knew about the open access to the Democrats' files, and that Senator Hatch wanted the staff to use "any means necessary" to support President Bush's nominees. Moreover, he told Jason that there was nothing illegal about invading Democratic files or copying the documents.

In one respect, Miranda was right. Others were aware that user accounts set up by Brian could be invaded. And no one did anything to remedy the problem.

Ryan Davis knew exactly what the problem was. Davis was Brian's predecessor. He had been the systems administrator for the committee's LAN, and was rehired by the committee, four months after Brian replaced him, to work on a special database project. According to Davis, he left Brian a voicemail message after learning of Brian's screw-ups in network security. Brian never returned the message and Davis never followed up.

Investigators interviewed Davis three times. "While he was nervous and guarded with investigators initially, he eventually was forthcoming and essentially confirmed [Jason's] recollection of events." Davis recounted for investigators how he spread the word to other Republican staffers. He set up a demonstration to show how easy it was to access the confidential files of others. He made the demonstration the computer workstation of Amy C. Haywood, who at the time was a law student and an editor of the Georgetown Journal of Legal Ethics.

Haywood's later recollection of events kept changing. When first questioned by investigators, she said that if Davis had shown colleagues how to access files, it was only because he was shocked or startled that it was possible; he was not showing them how they could access the files. She also contradicted the stories of Comisac and Dahl, who said they never asked how Jason obtained the Democratic documents.

When questioned a second time, Haywood said that Jason told her directly that he could access confidential files on the server, but that Jason had done this on his workstation, not hers. But later, she said it was possible that Jason could have performed the demonstration on her own computer. She then conceded that it was possible that Davis conducted a demonstration on her computer, but "she does not remember it because she did not think it was significant at that time."

"Overall, Ms. Haywood was not helpful in determining whether others within the Nominations Unit knew that access was available to Democratic files," wrote investigators. Haywood was also part of the team promoting the controversial nomination of Jeffrey Sutton, a member of the Federalist Society, who was confirmed in May 2003 by a 52-41 vote. During 2004 and 2005, Haywood clerked for Judge Sutton.

According to Jason and Davis, the demonstration on Haywood's computer was observed by two law clerks for the Committee, Peter Jensen and Chris Rogers. Initially, Jensen said that he had never been shown how to access Democratic files. In a second interview, said he had no recollection of a demonstration by Davis, but that it could have happened, though Jensen may not have known what was going on. At the time of the investigation, Jensen had been promoted to Investigations Counsel for the Committee.

Rogers, who had left Washington by the time the investigation was under way, was interviewed by phone and made a blanket denial of everything.

As time passed, Comisac and Dahl continued to be pleased with Jason's performance, though they claimed to be unaware of the pilfering he performed for Miranda. Over time, Jason was given additional responsibilities, such as speaking with representatives from the Justice Department. Investigators were never allowed to interview the Justice Department employee who was Jason's contact. And investigators never disclosed the name of that Justice Department employee.

The Ongoing Theft

As Jason would explain to investigators, he regularly searched the files of Democratic staffers working for Senators, Kennedy, Durbin, Feinstein, Leahy, Biden, and Feingold. But Jason did not know what to look for, so Miranda would guide him as to what information was helpful, often suggesting which directories he should concentrate on. Miranda was able so access the confidential files himself -- he admitted to doing so twice -- but preferred to have Jason hand deliver hard copies instead. Sometimes Miranda and would sometimes alert Jason that there was something new in a particular folder and request that Jason print it out for him. This set up continued after Miranda left his position at the Judiciary Committee to work for Senate Majority Leader Bill Frist.

Miranda had worked for the Judiciary Committee almost exactly one year. While working for Frist, Miranda leaked Democratic documents to other Republican lawyers. In March 2003, he gave some confidential Democratic files to Mitch McConnell's counsel, who in turn forwarded them over to Rena Comisac.

Miranda's scheme for pilfering documents continued without glitch from early 2002 until November 14, 2003. And then it all unraveled within one week.

The Scheme Unravels

On Friday November 14, 2003, 2003, The Wall Street Journal editorial page published excerpts of five strategy memos by Democratic staffers.

The next day, November 15, after a Washington Times article referenced internal Democratic staff memos, a lawyer working for Teddy Kennedy alerted the SAA that there may be a security problem in the Judiciary Committee's computer network.

That same day, William McGurn, an editorial writer for The Wall Street Journal, gave the Democratic documents to the counsel for Jon Kyl, a senator on the Judiciary Committee. At that point, McGurn crossed the line from journalism into political dirty tricks. He effectively voided the Journal's claim to maintain the confidentiality of its source. To this day, William McGurn still writes for the Journal.

Then on Sunday, all backup tapes for the Judiciary Committee's network were placed in the custody of the U.S. capitol police.

On Monday, November 17, 2003, the SAA began an investigation into the security breach. Dick Durbin specifically requested that an independent computer forensics and security expert conduct the review into possible thefts.

On Tuesday, November 18, 2003, the Coalition for a Fair Judiciary, posted 28 pages of confidential Democratic documents. Also posted: An e-mail dated April 2, 2003, from Allison Herwitt of NARAL Pro Choice America, that included the directory path of Manuel Miranda, who at the time worked for the office of Senate Majority Leader Bill Frist.

On Thursday November 20, 2003, Orrin Hatch, Chairman of the Judiciary Committee, issued a authorizing the investigation into whether there was any unauthorized access to the Committee documents referenced in The Wall Street Journal and Washington Times.

On Friday, November 21, 2003, Hatch's staff told the Sergeant at Arms that Jason had confessed to everything. Jason's desktop computer was immediately taken into custody. Miranda's desktop computer in the office of Majority Leader Frist was also taken into custody. Jason, who had been preparing to begin graduate school in accounting in Texas, was put on administrative and left for Texas on January 7, 2004.

The investigation proceeded.

Media Noise

On, February 9, 2004, the day he resigned his position with Majority Leader Bill Frist's office and three weeks before investigators published their report, Manuel Miranda gave his side of the story. He learned about the security gap from Jason. But, as Jason said, everybody knew. And everybody knew the legal implications of what they knew. And the Democrats also knew. From his publicly released statement:

"[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." [Emphasis added.]

Pickle's report takes direct aim at Miranda's veracity, stating, "Mr. Miranda's statements contradicted forensic evidence on two occasions and at other times were inconsistent with the recollection of other, reliable individuals." It specifically refutes Miranda's claim that Democratic staffers were aware of the security gap. "The Democratic staff working on judicial nominations clearly did not know there was a vulnerability," it said.

Pickle's report was far gentler with Brian, who had given differing, and false, explanations of what happened. The investigators do not believe that [Brian] acted maliciously, or that he himself inappropriately accessed any user's files," said the report. "Rather, this significant security vulnerability appears to have been caused by [Brian's] inexperience, and a lack of training and oversight."

Most notably, Brian gave his changed -- and false -- explanation more than a week after a battle erupted within the Committee to limit the scope of the investigation. On February 11, 2004 Roll Call reported:

"After almost four hours of briefings by Sergeant-at-Arms Bill Pickle on Monday and Tuesday, Senators said the investigators have compiled a detailed account of thousands of memos that were taken from the Democrats. While Republicans pushed back Tuesday against Democratic assertions that the computer downloading was "probably criminal," they acknowledged that the work done by at least two former Judiciary Committee staffers was improper. ...

"Judiciary Chairman Orrin Hatch (R-Utah) said the files never should have been taken. 'Every member of the committee is a victim,' he said.

"Democrats and Republicans fought over whether there was enough for a criminal case in the probe. Hatch said 'talk of criminal prosecution was premature,' given what the Committee has heard in briefings so far.

''I don't know of any prosecutor who would bring that case knowing what I know now,' he said.'

Right before the SAA report was set to be published, Miranda pulled a rabbit out of a hat, a new unnamed witness whose name had not previously been provided to investigators, who had requested the names of all Committee employees. The unnamed witness, a former unpaid intern who had worked in Republican Senator Charles Grassley's office, ostensibly confirmed that "everybody knew" about the security glitch. But the new witness's signed statement, presented by Miranda on March 2, 2004, never indicated that Democratic staffers had knowledge of the glitch. It did nothing to exonerate Miranda. It only helped implicate the other Republican staffers.

But that wasn't the point. It simply offered Miranda a further pretext to create some distorting noise in the media narrative.

More right wing media efforts came out to coincide with release of the report. At 10:11 a.m. on March 4, 2004, the day the SAA report was reviewed by members of the Judiciary Committee, "Memo Gateless" was posted on the NRO website. Ira Winkler, a computer security and espionage expert, wrote, "The facts, as reported and admitted so far, are these:.." And then he proceeded to make stuff up.

"One young Senate staffer discovered that documents of the opposing party were freely available on his desktop from the one file server that both parties shared. He let a few of his colleagues know. Independently, yet another staffer, the Republican technology consultant, also discovered that the shared server was wide open and he informed the Democrat system administrator that each party's documents were vulnerable to the other. The Democrats were in the majority so the Democrat systems administrator had control over the shared server and the security protocols. But it appears he did nothing. It was only months later, after documents were leaked to the press, when the Republicans regained control, that the security problems were fixed."

Presumably, the "Republican technology consultant" was Ryan Davis and the "Democrat system administrator" whom he "informed" was Brian. Winkler lied. The report said the exact opposite. That same day, The Washington Times published an adulatory profile of Miranda.

Hatch Pushes Back

One week later, on March 11, 2004, Orrin Hatch pulled his own dirty trick. Committee members had been talking all day about compromise language to be used in a recommendation to proceed. A majority -- all nine Democrats and at least three Republicans -- had wanted to ask for a prosecutor, perhaps a special prosecutor, to look into what the panel's senior Democrat, Patrick Leahy of Vermont, called "unprecedented partisan espionage." That evening, Democrats stepped out of the committee room to minutes to cast votes on the Senate floor. With no Democrats and about a half-dozen Republicans present, Orrin Hatch proclaimed that the panel would not be able to reach agreement and he would defer to the Senate Sergeant-At-Arms William Pickle to decide what to do.

The matter was referred it the Justice Department, where it languished. Two years later, the Republican Senate's legal counsel was still negotiating over what it would disclose. "The complicated negotiations appear to be slowing down the Justice probe, or at least postponing any decision by prosecutors about whether to bring charges or drop the case, " wrote The Hill on February 16, 2006.

On his website, Miranda writes:

"If you are wondering what happened to the politically charged allegations made against me of legal and ethical wrongdoing in 2003 -- one word: Nothing Why? Take a guess."

Comments

[4KixAfter6]

There is so much criminal activity in our government and no one ever gets prosecuted.

[ssfahrer]

That's why the TEA BAGGERS were out in force against BIG GOVERNMENT!!!!!

[brandnewstuff]

to read the last line- what a smug a-hole
Awesome David- great reporting

[brandnewstuff]

HOLY SMACK_ I am not finished reading -- ALL criminal acts- WTF

[JRsNana]

Yeah, well don't tell Miranda that. He's on this thread saying he's protected by governmental whistleblower protection and that he didn't do anything even unethical much less criminal.

[SurrealPumpkin]

Ira Winkler may be a Computer Security expert but I wouldn't allow him near mine. Does he really think that the Democrats were in the majority in 2004?

[SurrealPumpkin]

A few "bad apples"? Forget used cars, don't buy applesauce from these guys!

[tdpubs]

So remind me why these people are not in jail and trading cigarettes for their lives again?

[charon]

Because the Repubs were not only the criminals, they ran the police department until 2007. Question might be: why don't the Dems revisit it now?

[SurrealPumpkin]

Why do you think the stories are beginning to break? Lots of tiny cracks are opening up.

[GTFOOH]

Great work on this story! Thanks David!

[Bongborg]

My, my, my... the Republicans certainly have come a long way from the days when Fred Thompson just called Nixon's office on the telephone to report what was occurring in the Watergate Committee. LOL.

[rf dude]

Apple, Miranda and that fruit-basket Orrin Hatch

brings Carmen to mind...
--

[JustSayMaybe]

Fiderer, love the run-down here, but for the sake of all that is good and just, please get someone to proof your work. You've got enough errors and typos here to flunk 9th grade english. "Breech" being the most obvious; I'm sure you meant "breach" since this story isn't about buttocks.

[charon]

I think it may be about breeches. Granny's incontinent breeches, and what you find in them: Republicans.

[Pleneras]

Manuel Miranda is the kind of Cuban who think PR's are below him. He's attacking her with no solid reason or facts simply because he was told to do so. He does not represent Mexicans, who are north americans, south america, or PR, DR, and Cuba while I'm at it. He does not speak for or is known by more that 1% of the overall Americans of the Americas.

He's nothing but another crook.

[FloresdelaHoz]

Miranda is an embarrasment to Cuban Americans. He is a cheap court jester (a la Trancredo) for the extreme right wing that has killed the GOP. Sotomayor is brilliant, honest and entitled to a fair hearing. The days of the GOP and the media splitting Hispanic Americans up into subgroups is over. Cuban Americans will stand alongside their Hispanic cousins in the struggle against bigots. Sixty five percent of all "reported" hate crimes are against Hispanics.

Dubya got over 50% of Florida's Puerto Ricans vote in 2004. Had the GOP listened to conservative Hispanic Americans, the GOP would still be in control. But the bigot wing of the party got its way and destroyed the party. Now it is time for GOP hosue cleaning.

Hopefully, our Mexican American cousins will deliver Texas in 2012. Si se puede!

[apoyo]

Maybe Coleman meant to say "ethernet".

[JRsNana]

I saw Miranda on Hardball last week making his lame arguments for fillibuster (wait - I thought it was un-Constitutional - oh yeah - only if Democrats are doing the fillibustering). He and his female cohort kept saying, "we want a good debate" . THAT, is a bunch of crap. I say that because the Republicans don't know how to debate. They know how to character assassinate. That's all. I was laughing by the end of the segment because they had both used their talking points over and over and over again and were completely unable to answer a basic question if their talking points couldn't be used. It was hilarious.

[progressiveconnie]

GOOD MORNING!!! MY FELLOW HOMO SAPIENS WHICH MEANS THE SPECIES WHO IS WISE.
America's credit card Robber Barons managed to bribe enough U.S. Senators with campaign contributions so those U.S. Senators would totally undermine the credit card bill by removing a section that would have stopped the astronomical increases in credit card interest rates.
For at least 10 years those credit card corporations have been ripping of credit card customers with excessive interest increases, fees and penalties to the tune of 30 billion a year which makes the Mafia look like petty thieves and during those 10 years what was the U.S. Congress doing about this serious criminal activity by these credit card Robber Barons, well, they were holding committee meetings, THATS IT, NO MORE, THATS ALL THE PEOPLE GET, COMMITTEE MEETINGS FOR 10 YEARS and after 10 years the people get a watered down credit card bill that goes into effect in a year AND THESE THIEVES CAN KEEP THEIR MOST PROFITABLE RIPOFFS; THOSE EXCESSIVE INTEREST RATE INCREASES THANKS TO THOSE U.S. SENATORS. The question is would you vote for a U.S. Senator who is representing those Robber Barons instead of you???!!!!

[ManuelMiranda]

I may be the only one interested in this story after 5 years but it was riveting, better than anyone's before, although incomplete. Feel free to call me. There is one internal inconsistency You say, based on Pickle's report: "According to Davis, he left Brian a voicemail message after learning of Brian's screw-ups in network security. Brian never returned the message and Davis never followed up." But you call poor Ira Winkler, a Democrat, a liar, for saying the same: "Presumably, the "Republican technology consultant" was Ryan Davis and the "Democrat system administrator" whom he "informed" was Brian. Winkler lied. The report said the exact opposite." I believed (right or wrong) that others knew , and that D staff had been informed. I did not know so many files had been downloaded, I saw a relative few. I concluded that reading partisan political documents was not violative of law or ethics, that documents stored in the Senate were in the public interest, not confidential, and reading them (or more) was protected by Congress' whislteblower rule. There was no hacking, we had "open permissions." I later contacted prosecutors, offered to meet, and sued for a declaratory judgment, which failed on procedure (our fault)l. When I was investigated for a Secret clearance in 2006 to work in Iraq for State, I asked them to determine whether there was wrongdoing; urged that they call Durbin first. Nothing came of the 2004 allegations because they were unfounded political tripe.

[ObamacratInCA]

Manuel regardless of whether or not you had open access to the documents, didn't you have an ethical obligation not to print the documents and to admonish your colleagues that this was not the reason you all came to Washington?

Also, your comments denigrating African American voters are disgusting.

[ManuelMiranda]

No. There is no such ethic. The opposite is true in public service. In the executive branch you are actually protected for whistleblower discoveries, i.e seeing something that someone did not intended for you to see. In the legislative branch you have a whistleblower obligation but not the protection. Congress legislates whistleblower protection only for the executive branch but not for its employees. This is also why in Congress, Congress has to specify in its rules what is protected by the Constitution's Secrecy Clause. As Justice Story explains, the Framer's intended for everything the Congress does to be public save what Congress deignates expressly as secret. Otherwise the Code for Goverment Service applies, and you are obliged to discover corruption. In this case, in my opinion, the collusion over the timing of confirmations to affect case results, etc. are examples of corruption, expecially, as was the case, when it was being done to maximize political fund raising. (On other point, don't be a tool.)

[dannyo152]

No ethical violation in reading others' communications? That's convenient and hardly universal.

[Liberal2]

Remember the rethug outrage at Jim McDermott for making public a tape of Newt Gingrich's telephone call?

[karinova]

"Appearance of impropriety"

Google it.

[ssfahrer]

The term, Googled or not, is simply BS. Either you're guilty or not. Which is it????