Lawmaker loses phone tape appeal

A federal appeals court yesterday upheld a lower court ruling that found Rep. Jim McDermott, Washington Democrat, violated federal law when he turned over an illegally taped phone conversation of House Republican leaders to reporters nearly a decade ago.

In its 2-1 opinion, the U.S. Court of Appeals for the District of Columbia backed the lawsuit against Mr. McDermott by Rep. John A. Boehner, Ohio Republican and now House majority leader, who was among those heard on the call.

Yesterday’s ruling by Judge A. Raymond Randolph, who was appointed by the first President Bush, was supported by Chief Judge Douglas H. Ginsburg, who was tapped for the appellate bench in 1986 by President Reagan. The dissenting opinion was written by Judge David B. Sentelle, a 1987 Reagan appointee.

“I do not believe the First Amendment allows this interdiction of public information, either at the stage of the newspaper-reading public, of the newspaper-publishing communicators, or at the stage of Rep. McDermott’s disclosure to the news media,” Judge Sentelle wrote.

But the other two judges agreed with the August 2004 decision that Mr. McDermott “participated in an illegal transaction when he accepted the tape” from a Florida couple, knowing that the conversation on it had been unlawfully intercepted.

“It is the difference between someone who discovers a bag containing a diamond ring on the sidewalk, and someone who accepts the same bag from a thief, knowing the ring inside has been stolen. The former has committed no offense; the latter is guilty of receiving stolen property,” Judge Randolph wrote.

The panel upheld the trial court’s order that Mr. McDermott pay Mr. Boehner $60,000 in damages and at least $600,000 in legal fees in the lengthy legal battle.

In a statement yesterday, Mr. McDermott said no legal strategy had been decided, but he praised “Judge Sentelle’s strong opinion in support of the First Amendment.”

“The American people have the right to know when their government’s leaders are plotting to deceive them, and that is exactly what was happening,” he said of the Dec. 21, 1996, conversation among House Republicans about an ethics probe of then-Speaker Newt Gingrich.

In 2001, the Supreme Court said the federal wiretap law could not be used to punish disclosure of information about matters of public concern by people who did not engage in obtaining the material illegally. The case was sent back to a lower court, where U.S. District Judge Thomas Hogan said Mr. McDermott was still at fault, since he released information he knew had been obtained illegally.

The ruling yesterday was a blow for the 18 news organizations that filed a brief supporting Mr. McDermott’s right to release the tape, which he had received from Alice and John Martin. The list included the New York Times, The Washington Post, NBC, ABC, CBS, CNN and Associated Press.

“Under the rule proposed by Rep. Boehner, no one in the United States could communicate on this topic of public interest because of the defect in the chain of title,” agreed Judge Sentelle in yesterday’s opinion.

But Boehner attorney Michael Carvin said the Democrat’s action was unlawful and said he “chilled” the free speech of persons such as Mr. Boehner and Mr. Gingrich. In the majority opinion, the appeals court called some of Mr. McDermott’s arguments “implausible.”

Aides close to Mr. Boehner said Mr. Carvin suffered a broken leg yesterday in an accident. As a result, Mr. Boehner did not know of his legal victory when he spoke to a group of reporters at a briefing yesterday morning.

“So they supported my position. Not a surprise. I think it is a good decision,” Mr. Boehner said.

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