Boehner Vs. McDermott Over, but Not Fees Fight

Posted December 3, 2007 at 6:30pm

The U.S. Supreme Court on Monday declined to review a lower court ruling against Rep. Jim McDermott (D-Wash.) in a 9-year-old case involving the disclosure of an intercepted phone call, effectively handing a long-sought victory to House Minority Leader John Boehner (R-Ohio).

The Supreme Court decision means McDermott is out of options for fighting the verdict, but a squabble over nearly a million dollars in legal fees continues to rage between the two lawmakers.

Judge Thomas Hogan of the U.S. District Court for the District of Columbia has not yet ruled on the matter but is expected to do so shortly.

Boehner attorneys Michael Carvin and Louis Fisher of Jones Day are asking for $865,000 in legal fees through June 30, 2007, dating back to the original court ruling in October 2004. That does not include more than $35,000 in interest, which would bring the total amount to roughly $900,000.

Additionally, the law firm would add fees incurred since June 30, including what Boehner’s attorneys call “fees on fees” for “fees connected with the current fee proceeding,” according to legal records.

“McDermott is seeking some unspecified reduction of that amount for a purported lack of success,” Carvin and Fisher wrote in an Oct. 5 filing with the court.

“Boehner was a fully prevailing plaintiff who achieved complete success on his federal claim,” they contended.

But in an Oct. 19 filing, McDermott attorneys from Kirkland & Ellis, led by Christopher Landau, said that nothing in the “relatively limited” victory by Boehner could justify seeking legal fees 14 times higher than the $60,000 in damages originally awarded to Boehner.

“Even though Representative Boehner was the prevailing party, he is not automatically entitled to the entire amount of his fees,” McDermott’s lawyers argued.

On Sept. 14, McDermott disputed Boehner’s fees as excessive because the lawmaker did not prevail in the “central issue of the case” that would allow the disclosure of information under the First Amendment.

McDermott also contended that the interest for the fees cannot be accrued starting with the first court ruling in Boehner’s favor in 2004 .

McDemott has a legal defense fund that he uses to pay his legal expenses. In the third quarter, he raised $31,900 for the fund and spent $8,200.

At least attorneys’ fees should not continue to accrue in the main legal battle, as the Supreme Court decision not to take up the case seems to settle it in Boehner’s favor. The high court did not comment on its decision.

“We’re obviously very grateful that the Supreme Court declined to review this case and brought litigation to a close,” Boehner attorney Carvin said Monday.

Carvin said the legal fees issue should be resolved in “very short order.”

McDermott said he was disappointed by the Supreme Court’s decision but did not seem to regret the pricey legal battle.

“I knew when I asked the Supreme Court to review this case that the odds were against me,” he said in a statement. “I pursued this case based on my belief in the people’s right to know, and I continue to believe it was my sworn responsibility to vigorously defend that right.”

Boehner called the struggle the “right fight for the right reasons” and said he was pleased to see it reach a “successful conclusion.”

“As I’ve said many times: When you break the law in pursuit of a political opponent, you’ve gone too far,” the Minority Leader said in a statement.

The contentious and long-running case revolved around an intercepted cell phone call between Boehner and other House Republican leaders debating the ethics controversy swirling around then-Speaker Newt Gingrich (R-Ga.).

Florida couple Alice and John Martin taped the phone call in December 1996 and ultimately delivered a copy to McDermott in his Washington office. McDermott, who disclosed the call to media outlets including Roll Call, was House ethics committee ranking member at the time.

Arguing that he should not be denied his right to free speech after a split decision, McDermott asked the Supreme Court to review the case in July.

“With all due respect to the Court of Appeals, the constitutional issues involved here are much too important to be confused by a split decision,” McDermott said at the time. “The protections afforded all Americans by the First Amendment have been placed on a very slippery slope by this decision. By taking away my First Amendment protections, the decision endangers freedom of speech and the press across America.”

By a vote of 5-4 on May 2, the U.S. Court of Appeals upheld the 2004 ruling of a district court that awarded Boehner $60,000 in statutory damages, plus attorneys’ fees, which then amounted to a half-million dollars.

McDermott appealed to a three-judge appeals panel to overturn the earlier ruling; he then appealed to the full appeals court when he lost that decision.

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

“We agree with and accept the ethics committee’s interpretation of the rules as applied to this case,” the court wrote. “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 legal ruling validated a Dec. 6, 2006, House ethics committee decision concluding that as ranking member, McDermott violated House rules pertaining to confidentiality in ethics investigations.

The committee, however, declined to punish McDermott for the action.

Daniel Jackson contributed to this report.