A recent en banc opinion by the D.C. Circuit Court of Appeals has decided the latest round in a lawsuit brought by one Congressman against another for disclosure of an illegally taped telephone conversation in violation of 18 U.S.C. 2511(1)(c). (Boehner v. McDermott, C.A.D.C. No. 04-7203, 5/1/07) This is a case that has bounced around in the courts since 1996, has made its way to the Supreme Court, went back down to District Court, and now is back before the Circuit Court of Appeals.
The dispute began in 1996 when Rep. John Boehner (a Republican representing the 8th District of Ohio), the Chairman of the House Ethics Committee was part of a conference call with his party leadership, including Speaker Newt Gingrich. The conversation revolved around a pending resolution of an ethics complaint involving Speaker Gingrich, who was to accept a reprimand and pay a fine rather than face further ethics proceedings. Apparently Rep. Boehner was in Florida in his car on a cell phone when the conference call occurred. (Opinion p. 3)
John and Alice Martin, residents of Florida, eavesdropped on the call and recorded it using a police radio scanner. They tried to deliver the tape to their Congressman, but she refused to accept it based on legal advice that it had been obtained illegally and therefore she should not accept it under any circumstances. Eventually the Martins delivered a copy to the then ranking Democrat on the Ethics Committee, Rep. James McDermott (7th District of Washington) (Opinion pp. 3-4)
McDermott listened to the tape, and immediately called two reporters—one from the New York Times and one from the Atlanta Journal-Constitution–to come listen to the tape. He let one of them record a copy. Both papers ran front-page stories on it, declining to identify their source. (p. 5)
The Martins then publicly disclosed that they were the source of the tape and that they had turned it over to Rep. McDermott. By the time the fallout settled, McDermott resigned his position with the Ethics Committee, and the committee turned the tape over to the Department of Justice. The Martins were charged with a violation of 18 U.S.C. 2511(1)(a), which forbids unauthorized interception of “wire, oral, or electronic communication.” They ended up pleading guilty and paying a fine of $500. (p. 6)
Subsection (1)(c) of the same law makes it illegal to disclose an illegally intercepted conversation if there is a reasonable basis to know that it was obtained illegally. This is the provision invoked by Rep. Boehner in his civil suit against Rep. McDermott seeking damages.
For those wanting factual details, we have provided a link to the full court decision. Bottom line: the tape was made unlawfully. Rep. McDermott, when he accepted it and disclosed it to third parties, knew it was unlawfully obtained, he did not as he had argued have a 1st Amendment right to disclose it. Therefore, he is liable to Rep. Boehner for violation of section 2511.The lower court’s award to Rep. Boehner of $60,000 in damages and attorneys fees stands. (pp. 7-12)