Rep. Jim McDermott (D-Wash.) has opted to use his last legal appeal in a long-running court battle with Minority Leader John Boehner (R-Ohio), announcing today that he will petition the Supreme Court later this month to review the case on the grounds that it raises significant First Amendment issues.
“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 in a statement issued late Friday afternoon. “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.”
Brian Kennedy, a spokesman for Boehner, said the Minority Leader was confident the ruling would stand.
“Mr. Boehner has consistently said that breaking the law or House rules for purely partisan purposes is unacceptable,” Kennedy said. “Our court system has ruled in the Republican Leader’s favor repeatedly, and he looks forward to a review by the Supreme Court.”
On May 2, the D.C. appeals court ruled 5-4 in favor of Boehner in the case involving a taped 1996 telephone call. The court also reaffirmed that Boehner could be awarded more than $600,000 in damages and attorneys’ fees in the nine-year-plus legal dispute. In late May, Boehner’s attorney’s sought $880,000 in legal fees, but McDermott dismissed the request as “unexpected, unsolicited and premature,” as he was still considering whether to appeal to the Supreme Court.
Since 1998, Boehner and McDermott have been fighting in various courts over whether McDermott unlawfully obtained and leaked 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.
The cell phone call involved then-Republican 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.
The D.C. court ruled in May that McDermott was not protected by the First Amendment in this case because he violated House ethics committee rules in the process since he was ranking member on the House Committee on Standards of Official Conduct at the time.
In December 2006, the ethics committee concluded that McDermott had violated House rules regarding confidentiality in investigations by leaking the tape.
Following the appeals court decision, Boehner attorney Louis Fisher told Roll Call in May that he was skeptical the Supreme Court would agree to hear the case.
“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.
McDermott also noted Friday that there is a separate August hearing already scheduled regarding the attorneys’ fees, but his legal counsel filed a motion Thursday evening to postpone the hearing until the Supreme Court decides whether to hear his appeal.