- The Washington Times - Wednesday, January 9, 2002

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit has allowed a Republican congressman to revive his lawsuit charging an ethics breach by a Democratic colleague.

The suit by Rep. John A. Boehner, Ohio Republican, says that Rep. Jim McDermott, Washington Democrat, violated a federal wiretapping law by disclosing the contents of an illegally intercepted conference call.

Mr. Boehner's lawsuit accuses Mr. McDermott of disseminating a tape of the Dec. 21, 1996, call involving Mr. Boehner, then-House Speaker Newt Gingrich and other Republican leaders to several media outlets. At the time, Mr. McDermott was the ranking Democrat on the ethics committee, but withdrew from the committee a week after the conference call was made public.

In the call, Mr. Gingrich made suggestions for a statement that the leaders would issue after ethics charges were issued against him.

Ed Bethune, an attorney for Mr. Gingrich, was one of the voices on the call recorded by a Florida couple on a Radio Shack scanner and tape recorder.

"Newt Gingrich was being investigated by the ethics committee and he was entitled to have members keep quiet," Mr. Bethune said. "If McDermott did divulge this … it would be the equivalent of a judge in a court of law deciding he didn't like the way things were going and would bias the jury with things he picked up on a wiretap."

When the action was brought, Mr. McDermott, a seven-term congressman, invoked his First Amendment right to free speech and denied distributing the tapes to the media.

But in dismissing the case in 1998, U.S. District Judge Thomas F. Hogan said, "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 skullduggery of would-be party operatives to win petty, partisan victories in the press."

The judge added: "The First Amendment is largely blind to motives, however, and it offers protection not only to the noble, but also to the ignoble. Thus, Rep. McDermott's actions are protected under the amendment, and the court must grant his motion to dismiss."

Following the dismissal of the lawsuit in 1998, an appeals court reinstated it the next year. Mr. McDermott then appealed to the Supreme Court, which sent it back to the appeals court, which ruled again last month.

Mr. Boehner's attorney, Michael Carvin, said that Mr. McDermott's contention that he did not distribute the tape does not hold up.

"It's as clear as a bell that he did [release the tape] and he has never denied it in court," Mr. Carvin said. "He shouldn't have any problem denying it under oath, if it's true, and we'd be happy to set up a deposition."

Mr. McDermott's attorney, Frank Cicero Jr., said the case will eventually be dismissed. He added that if, as Mr. Boehner contends, the grievance concerns a congressional violation, the case should be tried there.

"There was no violation of House rules, but if that is the case, it's a matter for the House, not the courts," Mr. Cicero said.

During the hearing last month before the three-member appeals court, Mr. Cicero argued that his client did not participate in the illegal interception of the phone call, and the conversation involved a matter of public concern. He said it doesn't matter that Mr. McDermott acquired the tape directly from the person who intercepted the call.

The Florida couple, John and Alice Martin, told investigators that they accidentally picked up the conference call while sitting in a Waffle House parking lot in Lake City, Fla. Mr. Boehner, who was on vacation in Florida, was in the same parking lot, participating in the call.

The Martins were later fined $500 each for federal wiretapping violations.

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