McDermott Loses Appeal vs. Boehner

Posted May 1, 2007 at 6:47pm

A D.C. Court of Appeals on Tuesday upheld a ruling in favor of House Minority Leader John Boehner (R-Ohio) in his long-running legal battle against Rep. Jim McDermott (D-Wash.) for disclosure of a taped 1996 telephone call.

In a 5-4 decision, the court reaffirmed that Boehner could be awarded more than $600,000 in damages and attorneys’ fees for the nine-year-long legal struggle. But McDermott still has 90 days to determine whether he will appeal the case to the Supreme Court.

“I’m encouraged by the ruling,” Boehner said in a statement. “As I’ve said many times: When you break the law in pursuit of a political opponent, you’ve gone too far.”

McDermott reserved his right to appeal a ruling that he said “sharply limited the Free Speech protections of the Constitution.”

The Democrat pointed out that in the same decision, a separate court majority overturned a lower court decision in favor of Boehner.

In Tuesday’s decision, the court majority argued that the First Amendment protected McDermott’s rights to disclose information of public interest even if it was illegally obtained. But it also argued that the First Amendment did not apply because McDermott violated House ethics committee rules.

“Legal counsel will continue to review today’s decision. It is premature to speculate on a course of action,” McDermott said.

However, Boehner attorney Louis Fisher was skeptical the Supreme Court would take the case if McDermott chooses to appeal. The Supreme Court already has sent the case back to the lower courts for judgment after ruling on a case similar to this one.

“We’re not going to predict what the Supreme Court is going to do, but the case really does not involve the broad impact and disagreement among lower courts that typically gets the Supreme Court’s attention,” he said.

Since 1998, Boehner and McDermott have been fighting in various courts over whether the Democrat unlawfully obtained an intercepted cell phone call given to him by Florida couple John and Alice Martin on Jan. 8, 1997, and then illegally disclosed it to The New York Times, The Atlanta Journal-Constitution and Roll Call. McDermott was ranking member of the House Committee on Standards of Official Conduct at the time he received the tape.

The Dec. 21, 1996, cell phone call involved then-GOP Conference Chairman Boehner, who was in Florida when the call took place, and other members of the House leadership, including then-Speaker Newt Gingrich (R-Ga.), discussing how to respond to an impending House ethics committee fine and reprimand of Gingrich.

In 2004, a lower district court ruled in Boehner’s favor, awarding him $60,000 in statutory and punitive damages, plus attorneys’ fees that then amounted to $500,000. But McDermott appealed to a three-judge appeals panel, which found against him last March, and then to the full appeals court, which agreed to rehear the whole case.

On Tuesday morning, the appeals court ruled that McDermott did not have a First Amendment right to disclose the taped conversation because he was violating House ethics committee rules on confidentiality. The court essentially put aside the question of whether the tape was lawfully obtained in the first place.

“We agree with and accept the ethics committee’s interpretation of the rules as applied to this case,” Judge Raymond Randolph wrote on behalf of the majority. “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.

“He therefore had no First Amendment right to disclose the tape to the media.”

The court ruling validates the conclusion of a House ethics subcommittee probing McDermott’s conduct in the matter. The ethics panel report issued on Dec. 6, 2006, concludes that as ranking member, McDermott violated House rules pertaining to confidentiality in ethics investigations.

McDermott’s disclosure of the tape is “inconsistent with the spirit of the applicable rules and represented a failure on his part to meet his obligations as ranking minority member of the House ethics committee.”

No further action against McDermott was taken by the ethics committee.

In a concurring opinion, Judge Thomas Griffith said he would have found McDermott’s disclosure of the tape protected by the First Amendment if it was not in violation of ethics committee rules.

Boehner attorney Fisher said, however, that the court ruling was drawn narrowly to apply specifically to this case and McDermott’s role on the ethics panel, rather than House Members as a whole.

“They’re clearly limiting [the decision] to the facts of this case,” Fisher said. “We think it’s the very unusual case where someone like McDermott both violated a federal law and at the same time violates ethics” rules.

“We don’t think the decision is going to have an impact on other cases,” Fisher concluded.

In a dissenting opinion, Judge David Sentelle contended that the district court was wrong on a key issue: that McDermott should have been punished for disclosing to the media a tape that was illegally intercepted.

The dissenters, in a subsidiary opinion supported by a majority, say that the First Amendment protects such disclosure for McDermott, the newspapers that published the materials and their readers.

“We venture to say that an opposite rule would be fraught with danger,” the dissenters opined. “We do not believe that the First Amendment permits this interdiction of public information either at the stage of the newspaper-reading public, of the newspaper-publishing communicators, or at the stage of Rep. McDermott’s disclosure to the news media.”

Furthermore, the dissenters contend that the court should not be ruling on whether House ethics committee rules restrict a Member’s constitutional rights.

Additionally, the dissenters argue that House ethics rules are “hardly unambiguous” when it comes to McDermott’s conduct.