- The Washington Times - Tuesday, August 24, 2004

After a six-year court battle, a federal judge ruled last week that in-your-face Democratic Rep. Jim McDermott “participated in an illegal transaction when he accepted” an illegally recorded tape of a 1996 telephone conference call involving then-House Speaker Newt Gingrich, Republican Rep. John Boehner and other GOP House leaders. At the time of his illegal actions, Mr. McDermott was the ranking Democrat on the House ethics committee.

In December 1996, a Florida couple, who were Democratic activists, happened upon the telephone conversation, which they taped using a Radio Shack scanner and recorder. In doing so, they violated federal wiretap laws, for which each was fined $500. The conversation among House Republican leaders dealt with the GOP reaction to a finding by a House ethics subcommittee against Mr. Gingrich. In early January 1997, the couple gave the tape to Mr. McDermott, who promptly leaked it to the New York Times, which reflexively put the story on its front page. Demonstrating how contemptuously he regarded his role as the Democratic Party’s senior ethics official in the House, Mr. McDermott initially insisted he “didn’t know anything” about the tape. Compounding the lie, he asserted, “I only know what I read in the newspaper.”

A criminal investigation conducted by the Clinton Justice Department eventually stalled over Mr. McDermott’s efforts to prevent congressional aides and an ethics committee lawyer from testifying before a federal grand jury. Upset with Mr. McDermott’s efforts to stonewall the criminal investigation for more than a year, Mr. Boehner filed a lawsuit in federal court accusing the Washington state Democrat of violating federal law by publicly disclosing the illegally intercepted phone conversation. Citing Mr. McDermott’s right to free speech in dismissing the suit in 1998, U.S. District Judge Thomas Hogan noted that the First Amendment “offers protection not only to the noble, but also to the ignoble” — a rather unflattering reference to the Democrats’ ranking member of the ethics committee.

Mr. Boehner appealed. A 2-1 decision in the U.S. Court of Appeals for the Federal Circuit reinstated the suit in September 1999. It is noteworthy that Judge David Sentelle, who voted to throw out the case on free-speech grounds, nonetheless concluded in his dissenting opinion: “A public official charged with the oversight of the ethics of his colleagues willfully dealt with felons and knowingly received unlawfully obtained evidence on the chance that he might be able to use something contained therein to embarrass one of the colleagues whose ethics he was charged with policing.” Yes, that’s Jim McDermott.

The suit eventually reached the U.S. Supreme Court, which returned it to the appeals court, which permitted Mr. Boehner to amend his suit and reargue it in District Court. Friday’s decision by Judge Hogan against Mr. McDermott was the result. A hearing next month will determine whether Mr. Boehner will receive punitive damages and attorney costs.

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