Court sides with Boehner in ethics case

Rep. Jim McDermott (D-Wash.) did not have the right to disclose a tape that contained an illegally recorded call between now-Minority Leader John Boehner (R-Ohio) and members of Republican leadership in 1996, according to a ruling by the U.S. Court of Appeals for the D.C. Circuit released yesterday.

The 5-4 split decision reviewed a case that has spanned over a decade, during which several appeals were made and the House ethics committee issued its own opinion on the matter.

{mosads} “I’m encouraged by the court’s ruling, as well as the findings of the bipartisan House ethics committee months ago,” Boehner said. “As I’ve said many times: When you break the law in pursuit of a political opponent, you’ve gone too far.”
McDermott said in a statement that the decision “sharply limited the free speech protections of the First Amendment in violation of binding Supreme Court precedent.”

He indicated that his lawyer was still reviewing the case and would not speculate on whether he would appeal the decision.
 “We have 90 days to decide whether to appeal this important and unfortunate First Amendment ruling to the U.S. Supreme Court,” he said.

According to court documents, Boehner, who was then Republican Conference chairman, participated in a conference call with other Republican leaders, including then-House Speaker Newt Gingrich (Ga.).

The GOP leaders discussed Gingrich’s decision to accept a reprimand from the ethics committee in exchange for the committee’s pledge not to hold a hearing.

The cell phone conversation was picked up by a police scanner and taped by two individuals, John and Alice Martin, who later passed it along to McDermott. The lawmaker, who was the ranking Democrat on the ethics panel at the time, then allowed reporters from three newspapers to listen to the recording.

“When Representative McDermott became a member of the Ethics Committee, he voluntarily accepted a duty of confidentiality that covered his receipt and handling of the Martins’ illegal recording,” the decision said. “He therefore had no First Amendment right to disclose the tape to the media.”

Boehner sued McDermott that year, and a federal court found McDermott liable for $60,000 in damages. A Boehner spokesman said that legal fees, which McDermott would also have to cover, could easily surpass $700,000.
   
That all comes to a price tag that is significantly more than it was several years ago, when McDermott refused Boehner’s offer to drop the suit if the Washington Democrat would apologize to the House and donate $10,000 to charity.

On Dec. 6, 2006, the House ethics committee issued a report that reprimanded McDermott, calling the disclosure of the phone call “inconsistent with the spirit of the applicable rules” and “a failure on his part to meet his obligations” as ranking member of the panel.

McDermott stepped down from the committee in January 1997, saying that the investigation into his handling of the tape was impeding the panel’s work.

In his statement yesterday, he stressed that the panel took no formal action against him and that no further action would be taken. He also argued that the dissenting opinion by Judge David Sentelle was a more accurate reflection of the First Amendment issues at stake.

“Plainly, subjecting a Member of Congress to liability for violating the ‘spirit’ of a rule burdens political speech in the vaguest of ways, leaving the Member to ‘guess at [the] contours’ of the prohibition,” the dissenting judge wrote.

 McDermott has maintained he lawfully obtained the tape and therefore could release it to the media under the First Amendment. But as a member of the ethics committee, he was subject to a set of rules prohibiting him from “disclosing evidence relating to an investigation to any person or organization outside the committee” unless authorized to do so.

The tape was initially passed to former Rep. Karen Thurman (D-Fla.), whose staff sought legal advice about what to do about it.

Stan Brand, former House general counsel, advised that the tape be given directly to either the ethics committee or the proper authorities. When asked yesterday about the implications of the decision, Brand called the case a “historical anomaly.”
“Half the people in Congress weren’t around when this occurred,” said Brand. “This doesn’t really change the law.”