McDermott Wants Taped Phone Call Ruling Overturned

WASHINGTON – Rep. Jim McDermott asked an appeals court Tuesday to overturn a ruling that he took part in an illegal transaction by providing a taped telephone call to reporters.

In arguments that evoked the recent CIA leak case, the appeals court wrestled over whether a federal district court's 2004 ruling could interfere with the news media's ability to gather information on important public issues.

Lawyers for 18 news organizations — including The New York Times, The Associated Press and TV networks — filed a brief backing McDermott.

"If affirmed, the district court's approach will jeopardize and chill traditional newsgathering and likely encourage an increasing variety of efforts by the government and private citizens to punish the publication of truthful information on matters of public importance," the news organizations said.

McDermott, a Washington state Democrat, leaked a tape of a 1996 cell phone call involving former House Speaker Newt Gingrich to The New York Times and other news organizations.

The call included discussion by Gingrich, a Georgia Republican, and other House GOP leaders about an ethics committee investigation of Gingrich.

Lawyer Frank Cicero said that while McDermott's actions might be distasteful and even part of the "politics of personal destruction, the First Amendment covers speech like that."

But a lawyer for one of the participants in the call — Rep. John Boehner, R-Ohio — said McDermott's actions were against the law.

"I think we should chill illegal behavior like Rep. McDermott's — because it's illegal and it chilled the free speech of others," lawyer Michael Carvin said, referring to Boehner and Gingrich.

The case stems from a tape that a Florida couple made in December 1996 and gave to McDermott the following month.

McDermott, then the ranking Democrat on the ethics panel, leaked the tape to the Times and other newspapers, which printed partial transcripts of the call in January 1997.

Gingrich was later fined $300,000 and reprimanded by the House, and he resigned his seat in November 1998. The Florida couple pleaded guilty to unlawfully intercepting the call and were each fined $500. McDermott gave up his seat on the ethics committee.

McDermott was never charged with a criminal offense, but Boehner filed a lawsuit in 1998 accusing him of violating state and federal wiretapping laws.

Last year, U.S. District Judge Thomas F. Hogan ruled that McDermott should pay Boehner more than $600,000. The figure includes $60,000 in damages and more than $500,000 in legal costs.

Hogan, who also was the judge in the case involving the public identification of CIA agent Valerie Plame, ruled that McDermott's "willful and knowing misconduct rises to the level of malice."

Federal law makes the knowing disclosure of an illegally intercepted communication both a crime and the basis for a civil lawsuit.

Cicero said the law did not apply in this case, arguing that McDermott did not know the full circumstances of how the tape was made.