In a long-awaited ruling, a federal judge determined Friday that Rep. Jim McDermott (D-Wash.) participated in an illegal transaction not protected by the First Amendment when he accepted and disclosed a taped telephone call of senior GOP leaders discussing strategy during the 1997 ethics investigation of then-Speaker Newt Gingrich (R-Ga.).
The latest decision in a seven-year-old case between two sitting House lawmakers by U.S. District Judge Thomas Hogan marks a clear victory for Rep. John Boehner, whose cellular phone call was illegally intercepted by a Florida couple in December 1996 while the Ohio Republican sat in a van at a Waffle House restaurant with his family during a vacation in the Sunshine State.
The case has traveled up and down the judicial ladder several times. Hogan’s own ruling last week completely reversed his findings of six years ago, at which time determined that McDermott had not engaged in the illegal interception of the phone call.
But the judge relied on a vacated appeals court ruling in the case as well as standards set by the Supreme Court in a closely related First Amendment case involving the public disclosure of illegally obtained information to conclude that McDermott had in fact knowingly participated in an unlawful transaction.
In a deposition, McDermott acknowledged that he leaked the tape to The New York Times and the Atlanta Journal-Constitution hours after he received it from the Florida couple.
“As a preliminary matter, the Court finds that by the time Defendant disclosed the tape to the media, he knew or had reason to know that the tape had been obtained through the unlawful interception of communications. Upon discovering that the tape presented by the Martins, two private citizens from Florida, contained a recorded telephone conversation among several high level government representatives, Defendant would have every reason to realize that the conversation had been illegally intercepted,” Hogan concluded.
Hogan also dismissed McDermott’s assertions that he did not recall reading a letter accompanying the tape that identified the Florida couple as disingenuous. The fact that the letter revealed the identity of the perpetuators and some details of the interception are facts that strip away First Amendment protection under a recent Supreme Court holding.
In that case, the high court ruled that a person who anonymously received illegally intercepted communications that were of public importance enjoyed a free speech right to pass the material on to the media. But here, Hogan found, McDermott had enough information to conclude that the tape was made illegally.
McDermott’s “action of immediately inviting [New York Times reporter Adam] Clymer to listen to the tape is uncontested, and his subsequent attempts in the days following to conceal this disclosure reflects that McDermott knew he had obtained the tape improperly,” Hogan wrote.
Hogan continued, “To counter all of these facts, [McDermott] relies primarily on faulty recollection as to crucial questions regarding what he knew and when he knew it. As to whether or not he read the cover letter, Defendant asserted only that ‘if I read it, I don’t remember it.’”
In a statement, Boehner said “Friday’s ruling demonstrates that no one is above the law. I’m pleased with the judgment but am disappointed that it has taken this long to discover what could have readily been admitted by Congressman McDermott years ago.”
Hogan has scheduled a hearing next month to consider Boehner’s demand for punitive damages as well as attorney fees. The case has already cost both sides hundreds of thousands of dollars, which have been raised primarily through campaign contributions and legal expense fund donations in the long-running battle between two highly partisan lawmakers.
Direct, face-to-face settlement talks between McDermott and Boehner broke down 2002 when the Washington Democrat refused to admit that his actions were wrong, a key demand of Boehner’s.
In his statement, Boehner said: “As Members of Congress, we take an oath to protect the Constitution — including the First Amendment — and uphold the rule of law. That’s why I’ve pressed forward with this case. It’s not about finances, it’s not about Congressional politics, and it’s not even about my relationship with Congressman McDermott.
“It’s simply about the difference between right and wrong. I look forward to finally closing this sad and avoidable chapter in Congressional history.”
In a statement, McDermott said he disagreed with Hogan’s ruling.
“When I first heard the tape recording given to me by a Florida couple,” McDermott said, “I believed important public issues were involved, and that I had the right under the First Amendment to release the taped conversation to the news media.”
It was unclear whether McDermott would appeal Hogan’s ruling but his attorney hinted at the prospect. Frank Cicero, McDermott’s lawyer, said: “We’ve taken a preliminary look at the opinion. This is another step in the process.”