- The Washington Times - Tuesday, October 31, 2006


An attorney for Rep. Jim McDermott told a federal appeals court yesterday that the congressman should not be punished for giving reporters access to an illegally taped telephone call involving House Republican leaders.

Lawyer Christopher Landau said Mr. McDermott had merely received the tape from a Florida couple and therefore had done nothing wrong.

A finding against the Washington Democrat could chill the press’s ability to gather information on important public issues, Mr. Landau said.

“It’s hard to overstate the impact of the case on the media,” he said.

Attorneys for 18 news organizations — including ABC, NBC, CBS, CNN, the Associated Press, the New York Times and The Washington Post — have filed a brief backing Mr. McDermott, who gave reporters a recording of a 1996 call involving Newt Gingrich, the Georgia Republican who was House speaker at the time.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled against Mr. McDermott in March. The 2-1 opinion upheld a lower-court ruling that Mr. McDermott had violated the rights of Rep. John A. Boehner, Ohio Republican, who was heard on the 1996 call. Mr. Boehner was then a Gingrich lieutenant and is now House majority leader.

The full nine-member appeals court vacated the ruling this spring and heard new arguments in the case yesterday. A ruling is expected next year.

Mr. Boehner’s attorney, Michael Carvin, told the court that Mr. McDermott’s actions were clearly illegal. He compared Mr. McDermott to a “fence” who received stolen goods and then sold them.

Mr. McDermott’s actions were especially egregious because he received the tape in his capacity as a House ethics committee member who was sworn to confidentiality, Mr. Carvin said.

Judge David S. Tatel said that under Mr. Carvin’s interpretation, the New York Times and other newspapers that published the contents of the tape could be held liable.

“The argument to extend it to the New York Times is quite powerful,” Judge Tatel said.

“I’m not representing the New York Times,” Mr. Carvin responded. “I’m perfectly happy to throw them overboard.”

But Mr. Landau said a ruling against Mr. McDermott would be disastrous for a free press.

“You are basically saying Congress can indict the media if it is deemed they knew the information was unlawfully obtained,” he said.

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