The best description of the long-running feud between Reps. John A. Boehner (R-Ohio) and Jim McDermott (D-Wash.)--not to mention the rancorous Congress that generated it--came from U.S. District Judge Thomas F. Hogan in July 1998, when he sided with McDermott: "This case arises out of the unfortunate acrimony, absence of civility and shortage of honor that pervades the partisan sniping between some members of Congress and their supporters."
Hogan ruled that McDermott was shielded by the First Amendment when, in January 1997, he allegedly leaked a tape revealing that Newt Gingrich, then the House speaker, was plotting to undercut the Ethics Committee's investigation of his fund-raising, despite a pledge not to do so. Among the voices captured by a Florida couple using a police scanner was that of Boehner, who was then chairman of the House Republican Conference and was speaking on a cell phone in a Florida parking lot.
McDermott, a psychiatrist with the Navy in his pre-congressional life, is a liberal; Boehner, a conservative, is his party's envoy to the business world. They have no history of mutual animosity. Boehner waited a year and then brought suit against McDermott for violation of the Electronic Communications Privacy Act, which makes electronic eavesdropping a felony. He sued, he says, because he saw no visible progress in a Justice Department investigation of McDermott's leak.
McDermott admits the tape came from the Florida couple--who were fined $500 each for illegally intercepting the call--but not that he turned copies of the tape over to the New York Times, the Atlanta Constitution and Roll Call. Hogan dismissed the case.
For McDermott, it was vindication with excoriation: "The First Amendment prevents the government from punishing the disclosure of truthful, lawfully obtained information of public significance. It is unfortunate that a United States Representative, who had chosen a position that supposedly illuminated him as a beacon of ethical behavior, should so eagerly seek to capitalize on the skulduggery of would-be party operatives to win petty, partisan victories in the press. The First Amendment is largely blind to motives, however, and it offers protection not only to the noble but also to the ignoble."
Boehner appealed Hogan's verdict before a three-judge panel, which ruled in September. The score was 2-1 for Boehner. Judge A. Raymond Randolph, in his majority ruling, wrote that the issue was not one of free speech, but of bad conduct. The dissenter was, surprisingly, Judge David B. Sentelle, the man Democrats love to hate for the appointment of Kenneth Starr--to them, the independent counsel from hell.
Like Hogan, Sentelle roasted McDermott while rescuing him: "He obtained these communications not for the purpose of disclosing the felonies or assisting in the enforcement of law, but solely for the purpose of using the contents . . . in pursuit of the politics of personal destruction. To compound the wrong, this was not just any congressman, but the co-chair of the House Ethics Committee. In other words, a public official charged with the oversight of the ethics of his colleagues willfully dealt with felons . . . on the chance that he might be able to use something . . . to embarrass one of the colleagues whose ethics he was charged with policing. Protecting such an official in such an act cannot be an easy thing to do. Nonetheless, it is, I think, that hard task that the Constitution compels us to undertake."
Now McDermott is asking for a rehearing before the 10-member Court of Appeals. His lawyer, Frank Cicero Jr., is optimistic. "This case is not about privacy," he says. "It's about politics."
Boehner's lawyer, Michael A. Carvin, is also sanguine. "This is not about the First Amendment," he says. "It's about a lawmaker breaking the law."
Boehner insists he is not seeking to punish McDermott for mortifying Republicans. He wants justice. He received permission from the Federal Election Commission to use campaign funds to pay his legal bills.
McDermott says nothing. His bills are up around $250,000, and his campaign war chest is depleted. He has decided not to make a run for the Senate.
The Washington Post was not offered the tape. Some of my colleagues deplore McDermott's dealings with the "felonious eavesdroppers." On the other hand, all agree that, given the chance, they would have printed the leak.
The McDermott case is not just a question of the press not biting the hand that feeds it. Judge Sentelle, of all people, pointed out that we are all in this together: "I do not see how we can draw a line today that would punish McDermott and not hold liable for sanctions every newspaper, every radio station, every broadcasting network that obtained the same information from McDermott's releases and published it again."