Appeals Court: Rep. McDermott Violated Law in Leaking Taped Call

A federal appeals court ruled Tuesday that Rep. Jim McDermott violated federal law by turning over an illegally taped telephone call to reporters nearly a decade ago.

In a 2-1 opinion, the U.S. Court of Appeals for the District of Columbia upheld a lower court ruling that McDermott violated the rights of Rep. John Boehner, R-Ohio, who was heard on the 1996 call involving then-House Speaker Newt Gingrich, R-Ga.

The court ordered McDermott to pay Boehner more than $700,000 for leaking the taped conversation. The figure includes $60,000 in damages and at least $600,000 in legal costs.

McDermott, D-Wash., has acknowledged leaking a tape of a 1996 cell phone call involving Gingrich to The New York Times and other news organizations.

The call included discussion by Gingrich and other House GOP leaders about a House ethics committee investigation of Gingrich. Boehner was a Gingrich lieutenant at the time and is now House majority leader.

A lawyer for McDermott had argued that his actions were allowed under the First Amendment, and said a ruling against him would have "a huge chilling effect" on reporters and newsmakers alike.

Lawyers for 18 news organizations — including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post — filed a brief backing McDermott.

But Boehner's lawyers said McDermott's actions were clearly illegal.

By leaking the tape, McDermott "chilled the free speech of others," namely Boehner and Gingrich, said Boehner lawyer Michael Carvin.

In a written statement, McDermott said he respectfully disagrees with the majority ruling.

"My position rightly defends freedom of the press and free speech in America," he said. "The American people have a right to know when their government's leaders are plotting to deceive them, and that is exactly what was happening during a telephone call in 1996 involving Republican House leaders."

McDermott's lawyers are studying the decision and will decide whether to appeal, the congressman said.

Boehner hailed the ruling, but said he expects the case to go to the U.S. Supreme Court. He said he's spent between $600,000 and $700,000 in legal fees, but has made many efforts to resolve the issue out of court.

Three years ago, Boehner said, he spoke to McDermott and offered to drop his civil suit if McDermott promised to admit he was wrong, apologize to the House and donate $10,000 to charity.

"We could never come close to an agreement," Boehner said.

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

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

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

McDermott was never charged with a criminal offense, but Boehner later filed a lawsuit accusing McDermott of violating state and federal wiretapping laws. A federal judge ruled in Boehner's favor in 2004, a ruling that was upheld Tuesday by the appeals court.

"Because there was no genuine dispute that Representative McDermott knew the Martins had illegally intercepted the conversation, he did not lawfully obtain the tape from them," Judge A. Raymond Randolph wrote in an opinion shared by Chief Judge Douglas H. Ginsburg.

In a strongly worded dissent, Judge David B. Sentelle called the majority ruling "fraught with danger." Just as McDermott knew the phone call had been illegally taped, so, too, did the newspapers that printed it, Sentelle said.

Under the majority ruling, Sentelle said, "no one in the United States could communicate on this topic of public interest because of the defect in the chain of title."