Appeals court rules against McDermott

WASHINGTON — A federal appeals court ruled Tuesday that U.S. Rep. Jim McDermott violated federal law by turning over an illegally taped telephone call to reporters nearly a decade ago.

In a 2-1 opinion, the U.S. Court of Appeals for the District of Columbia ruled that McDermott violated the rights of House Majority Leader John Boehner, who was heard on the 1996 call involving former House Speaker Newt Gingrich.

The court ordered McDermott to pay Boehner more than $700,000 for leaking the taped conversation. The figure includes $60,000 in damages and more than $600,000 in legal costs.

McDermott, D-Seattle, leaked a tape to The New York Times and other news organizations.

The call included discussion by Gingrich, R-Ga., and other House GOP leaders about a House ethics committee investigation of Gingrich. Boehner, R-Ohio, was a Gingrich lieutenant at the time.

A lawyer for McDermott had argued that his actions were allowed under the First Amendment and said a ruling against him would have "a huge chilling effect" on reporters and newsmakers alike.

Lawyers for 18 news organizations — including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post — filed a brief backing McDermott.

But Boehner's lawyers said McDermott's actions were clearly illegal.

By leaking the tape, McDermott "chilled the free speech of others," namely Boehner and Gingrich, lawyer Michael Carvin said after a court hearing in November.

In a statement Tuesday, McDermott said he has not decided whether to appeal. But he defended his actions in providing the tapes to the reporters.

"The American people have a right to know when their government's leaders are plotting to deceive them, and that is exactly what was happening during a telephone call in 1996 involving Republican House leaders, including then Speaker of the House Newt Gingrich and Rep. John Boehner," the statement said.

At the time of the phone call, Gingrich was battling allegations that he had improperly funded a college course he taught. Gingrich had promised not to stir opposition against a House ethics committee investigation into the matter, but the taped call suggested he had violated his promise.

With Tuesday's decision, McDermott can either ask the full appeals court to review the case, called an en banc hearing, or appeal to the U.S. Supreme Court.

"He's asked for an en banc hearing in this case twice, and been turned down twice, so I don't think they will grant him that if he asks a third time," Carvin said.

Boehner said he has spent between $600,000 and $700,000 in legal fees, while McDermott recently estimated his legal bills at more than $400,000.

A defense fund set up to help pay McDermott's legal expenses has collected $351,000 in contributions since it started in 2000, according to congressional filings. Labor unions, liberal interest groups, political-action committees and individual Democrats account for most of the donations.

Boehner said he spoke directly with McDermott three years ago and offered to drop his civil suit if McDermott promised to admit he was wrong, apologize to the House and donate $10,000 to charity.

"We could never come close to an agreement," Boehner said.

Boehner said he renewed talks through intermediaries last summer with similar results.

Congressional scholar Thomas Mann from the Brookings Institution, a research and policy institute, called the ongoing lawsuit "quite extraordinary."

"It's unprecedented, it's bitter, it's personal and it's partisan," Mann said. "Under ordinary circumstances and given the nature of expected relations between members of Congress, you just wouldn't have something like this."

Boehner, who was elected majority leader last month, has highlighted the case in public remarks, even calling on the long-dormant House ethics committee to make his complaints against McDermott its first investigation of the year.

The case stems from a tape that a Florida couple made in December 1996 and gave to McDermott the following month.

McDermott, then the ranking Democrat on the ethics panel, leaked the tape to The New York Times and the Atlanta Journal-Constitution, which printed partial transcripts in January 1997.

Gingrich was later fined $300,000 and reprimanded by the House over ethics charges; he resigned his seat in November 1998. The Florida couple, John and Alice Martin, pleaded guilty to unlawfully intercepting the call and were each fined $500. McDermott resigned his seat on the ethics committee.

He was never charged with a criminal offense, but Boehner later filed a lawsuit accusing McDermott of violating state and federal wiretapping laws. A federal judge ruled in Boehner's favor in 2004, a ruling that was upheld Tuesday by the appeals court.

"Because there was no genuine dispute that Representative McDermott knew the Martins had illegally intercepted the conversation, he did not lawfully obtain the tape from them," Judge A. Raymond Randolph wrote in an opinion shared by Chief Judge Douglas H. Ginsburg.

In a strongly worded dissent, Judge David B. Sentelle called the majority ruling "fraught with danger." Just as McDermott knew the phone call had been illegally taped, so, too, did the newspapers that printed it, Sentelle said.

Under the majority ruling, "no one in the United States could communicate on this topic of public interest because of the defect in the chain of title," he said.

Medill News Services reporter Alison Granito, Seattle Times staff reporter Alicia Mundy and The Associated Press contributed to this report.