Court Rules Against Democrat in Leak of Tape

By Christopher Lee
Washington Post Staff Writer
Thursday, March 30, 2006

Rep. Jim McDermott (D-Wash.) violated the rights of Rep. John A. Boehner (R-Ohio) and broke federal law 10 years ago when he leaked the contents of an illegally taped telephone call to the press, a federal appeals court ruled Tuesday.

In a 2 to 1 opinion, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ordered McDermott to pay Boehner, now House majority leader, more than $700,000, including $60,000 in damages and hundreds of thousands of dollars for legal fees. Boehner had sued McDermott, alleging violations of federal and state wiretapping laws.

The tape was of a Dec. 21, 1996, conference call among Republican leaders, including then-House Speaker Newt Gingrich (Ga.), over how to handle the fallout of the ethics sanctions against Gingrich. Boehner, then the GOP conference chairman, was vacationing in Florida and participated on a cellular phone.

John and Alice Martin, Democratic activists from Florida, overheard the discussion on a police scanner and recorded it. The Martins gave the tape to McDermott; they later pleaded guilty to illegally intercepting the call and were each fined $500.

Boehner targeted his ire at McDermott, then the ranking Democrat on the House ethics committee, who he said leaked the contents of the tape to the New York Times and other news organizations in a blatant invasion of privacy.

"The reason I proceeded then, and the reason I continue to be engaged in this, is because while we all expect our political opponents to go after us, violating the law in the pursuit of your political opponents is, in fact, against the law and should not be tolerated," Boehner said this week.

Boehner said that twice in the past three years he offered to withdraw the lawsuit if McDermott agreed to admit that he was wrong, apologized to the House and donated $10,000 to charity.

In a written statement Tuesday, McDermott said he "respectfully" disagrees with the appeals court's decision and is evaluating whether to appeal. "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 the taped call, he said.

McDermott had contended that he did not break any laws by receiving the tape, and argued that penalizing him for making it public would violate his free-speech rights. The Washington Post, the Times and other news organizations filed briefs in support of McDermott's right to release the contents to the media.

McDermott lost the previous round in federal court in August 2004, when U.S. District Judge Thomas F. Hogan ruled that he "participated in an illegal transaction when he accepted the tape."

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