Panel Weighs McDermott Case
Democrat Seeks Relief, New Trial
Roll Call Staff
Lawyers for Reps. John Boehner (R-Ohio) and Jim McDermott (D-Wash.) clashed in federal appeals court Tuesday morning as McDermott sought to overturn a lower-court ruling from last year that could force the Washington Democrat to shell out hundreds of thousands of dollars in damages and attorney’s fees to Boehner.
The legal battle between the two veteran lawmakers, which centers around an illegally taped phone call from December 1996 that Boehner took part in, has been under way for more than seven years. If McDermott and Frank Cicero, McDermott’s lawyer, get their way, a trial could be held in which reporters from The New York Times and other newspapers are called as witnesses.
Boehner and his attorney, Michael Carvin, want an October 2004 ruling issued by District Court Judge Thomas Hogan to stand. In that ruling, Hogan ordered McDermott to pay Boehner $60,000 in damages plus the cost of “reasonable” attorney’s fees, which currently run to more than $500,000.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit took up McDermott’s appeal Tuesday. It marked the third time that the case has been heard by this court.
The case revolves around McDermott’s role in circulating an illegally taped December 1996 phone call between House GOP leaders. Boehner was then House Republican Conference chairman, and senior Republicans were recorded discussing strategy to deal with an ethics charge against then-Speaker Newt Gingrich (R-Ga.). Boehner was on a mobile phone in Florida during the call, and a Florida couple later pleaded guilty to illegally intercepting the call on a police scanner.
McDermott eventually received a copy of the tape and, as he has publicly acknowledged, leaked it to The New York Times and Atlanta Journal-Constitution. Roll Call also obtained a copy of the tape. Boehner sued McDermott for invasion of privacy in 1998, and the case has been bouncing back and forth between federal courts since then.
On Tuesday, Cicero painted the case as a test of the First Amendment’s protection of freedom of the press and, with McDermott in attendance, he repeatedly told Chief Judge Douglas Ginsburg and Circuit Judges David Sentelle and A. Raymond Randolph that failure to overrule Hogan would have a “chilling effect” on reporters that would lead to “self censorship” by the press on issues of national importance.
Eighteen news organizations — including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post — have weighed in on behalf of McDermott’s appeal.
Cicero argued that Hogan had overstepped his authority and ruled on an issue that the Supreme Court has not taken a stand on during consideration of such high-profile cases as the publishing of the “Pentagon Papers” in 1971 by The New York Times and The Washington Post. Rather than direct government restraint preventing publication of stories based on material from questionable sources, the press would instead be forced as a practical matter to abandon such stories out of fear of future legal actions, Cicero claimed.
Cicero wants Douglas, Sentelle and Randolph to send the case back to Hogan for a trial. At that point, McDermott could call Adam Clymer, a former reporter from The New York Times, and Jeanne Cummings, an ex-Atlanta Journal-Constitution scribe who now writes for the Wall Street Journal, to testify, Cicero told reporters in an interview following his court appearance.
Cicero believes the First Amendment protections afforded to the press extend to McDermott in this case because he had nothing to do with illegally recording the call. “The people [who intercepted the call] were strangers. McDermott has no participation in their conduct,” Cicero said. John and Alice Martin pleaded guilty to violating Florida’s wiretapping law and paid a $500 fine.
On McDermott’s own Web site, the Washington Democrat characterizes his actions this way: “McDermott’s release of the tape recording of the conference call appropriately brought to public scrutiny the intention and the attempt of the Speaker and other House leaders deliberately to mislead the public by ‘spinning’ the outcome of the [ethics] Committee’s investigation” of Gingrich.
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