Topic category:  Law & Litigation Issues

Apparently there are no depths that some leading Senate Democrats will not plumb in their desperate effort to block the elevation of Judge Brett Kavanaugh from the United States Court of Appeals from the District of Columbia to the Supreme Court of the United States.

Alas, Senator Patrick Leahy, currently the longest serving Senator and once a Chairman of the Senate Judiciary Committee, used his bully pulpit at the Kavanaugh hearing to insinuate that Judge Kavanagh used "stolen" email courtesy of Manuel Miranda, Republican counsel on the Senate Judiciary Committee more than fifteen years ago.

In "Hacking controversy from early 2000s resurfaces during Kavanaugh hearings" (www.savannahnow.com/news/20180906/hacking-controversy-from-early-2000s-resurfaces-during-kavanaugh-hearings), Washington Post's Michael Kranish reported: "As Miranda listened, Sen. Patrick Leahy, D-Vt., suggested that he played a key role in an event that raised new questions about Kavanaugh’s credibility.

"Miranda, the former Republican counsel on the Senate Judiciary Committee, was involved in an infamous episode around 2002 in which he gained computer access to records stored by Democrats on the panel. Kavanaugh was associate counsel at the White House at the time, working on judicial nominations.

"Leahy...repeatedly asked...whether Kavanaugh received information that Miranda got from the Democratic files. Leahy said in a statement Wednesday that Miranda and another staffer were behind what he called the hacking of 4,670 computer files and used them 'to assist in getting President Bush’s most controversial judicial nominees confirmed.' He said Kavanaugh 'worked hand in hand with Miranda' to help nominees win confirmation.

"Kavanaugh has consistently denied that he knew anything about Miranda’s access to the files. Asked Wednesday by Sen. Lindsey Graham, R-S.C., whether he ever knew he was dealing with stolen property, Kavanaugh responded, 'No.'"

"Leahy, however, on Wednesday cited emails that have been made public only in recent days that he said suggested that Kavanaugh may have known more than he previously acknowledged about Miranda’s information.

"In an email on July 30, 2002, Miranda wrote Kavanaugh that he wanted to give him and another White House official 'some info' related to an upcoming nomination hearing. Kavanaugh responded that he could talk on the phone at 12:15 p.m. that day. It is not clear from the documents what was discussed in the phone call, if it occurred, or whether any information from Miranda’s access to Democratic documents was involved.

"Separately, Miranda emailed Kavanaugh and another White House official that 'intel suggests that Leahy will focus on all things money' at a 2002 confirmation hearing.

"Leahy said at Wednesday’s hearing that he hoped more documents would be released Thursday that would provide clarity about whether Miranda gave Kavanaugh information based on the Democrats’ documents.

"Miranda, in a telephone interview, said that he worked 'closely' with Kavanaugh on nominations. He said that he is not sure whether he ever shared any information that he gleaned from the Democrats’ documents. But if he did, he said, he never told Kavanaugh how he had gained access to them.

"'I never told him that I got this from the Democrats. There was never anything like that,' Miranda said. 'I can tell you a fact that Brett didn't know, because no one knew' aside from some other staffers.

"Miranda said that he gained access to the documents after a junior staffer on the committee discovered that they were posted on a server shared by Republicans. He acknowledged reading many of the documents and said that he mainly used them to glean insights into how Democrats were preparing for hearings.

"A congressional report blamed Miranda and another staffer for viewing the documents and Miranda resigned from a Senate position in 2004. He said in the interview that he was never charged in the matter and that he never it considered his action to be hacking, because the documents were on a shared computer server.

"Miranda, a lawyer who lives in  Maryland, said that he had never realized until this week that Leahy and other democrats had raised questions at prior confirmation hearings about whether he had given information to Kavanaugh based on the documents.

"Then, on Wednesday, he was at home in bed and turned on the hearings held by the committee that once employed him. He said no one from the committee, Democrat or Republican, had contacted him to hear his side of the story. While he said he had no inkling his name would come up at the hearing, he said it was not entirely unexpected given that Democrats have for years complained about his access to the documents.

"Then, on Wednesday, he was at home in bed and turned on the hearings held by the committee that once employed him.

"I certainly didn't like it, but i wasn't shocked,' Miranda said.

"Leahy, meanwhile, urged Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, to release every document that may 'shed light on Judge Kavanaugh's relationship with Miranda. They need to be made public now, before it's too late.'"

Okay, Senator Leahy.

Here's a statement by Mr. Miranda to the Senate Judiciary Committee rebutting your claims of theft and hacking:

"Sixteen years ago, a colleague of mine on the staff of Senator Hatch discovered that Democrat staff of the Senate Judiciary Committee had negligently placed their documents on our shared server without protections.  I admit that we exploited this to learn simple things about their plans to attack Bush judicial nominees at the behest of the left wing interest groups.  I also did so pursuant to my duty under the Code of Ethics for Government Service.  The documents also revealed unlawful and unethical conduct by Senators.  I reported this unethical conduct to the Senate Ethics Committee but never heard back.

"Among other things, the staff of Senator Leahy met regularly with outside groups in meetings and allowed them to vote as to which nominee would get a hearing and who would not.   As the matter became public in late 2003, the media, coached by Democrat press staff and Senators, focused on the matter as if their documents were 'stolen' or 'hacked,' instead of on the conduct revealed in them.  Senators even abused their power by repeatedly urging the Justice Department to prosecute me, even on the floor of the Senate!  Instead, the US Attorney for the Southern District of New York fully investigated the matter and I was fully vindicated.  I went on to serve as a United States diplomat in Iraq after obtaining a full security clearance review.

  "Nothing was stolen or hacked.  Republican senators should not continue to surrender their words to those with malign intent.

"In 2002 and 2003, I worked with Brett Kavanaugh and many other counsels to confirm the nominations of Bush judges who were being horribly obstructed. Brett Kavanaugh was intently ethical in all my experience with him.  He has no worries now. Contrary, to the malign intent of Senators Leahy and Durbin at Senate Judiciary hearings, I can confirm that Brett Kavanaugh knew nothing of the source of any information that we obtained. Nor did I ever meet with him privately nor publicly to discuss it.  He is qui[t]e right.

"Under federal law, the documents in question were supposed to be turned over to the U.S Archives at the end of the 106th and 107th Senates. They are now supposed to be public.  I call on Chairman Grassley to ensure that this was done fully. I urge the press to ensure that this was done and to review them. The public has a right to know."

Yes. The public has a right to know and Senator Leahy should be trying to explain why he didn't tell the truth, the whole truth and nothing but the truth about the documents put on a shared server and Mr. Miranda.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.