Boehner v. McDermott
In December 2004, the House Ethics Committee investigated McDermott over the leaking of an illegally recorded telephone conversation during a 1997 committee investigation of then-Speaker Newt Gingrich.
In the conversation, Mr. Gingrich, his lawyer, and several other Republican Congressmen discussed how Gingrich's Congressional allies should deal with the political consequences of his admission that he had violated House ethics rules by giving inaccurate information to the House Ethics Committee for its inquiry into his use of tax-exempt funds. Democrats have described the conversation as evidence that Mr. Gingrich broke an agreement with the Ethics Committee that he would not orchestrate a politically motivated response to those committee findings.[26]
The recording was made by John and Alice Martin, who claimed that they had overheard the conversation on a police scanner, decided to record it for posterity's sake, and then decided that it might be important for the Ethics Committee to hear.[27] The Martins gave the tape to McDermott because he was the senior Democrat on the Ethics Committee.[28] Within two days, reportedly after the Republican Ethics Committee Chair Nancy L. Johnson refused to allow a vote on making the tape part of the committee's records, sending the tape to the Justice Department, or taking any action against participants in the conversation,[29] and over the warning of the Committee's counsel of possible legal liability, McDermott gave the tape to several media outlets, including the New York Times.
McDermott speaking in 2008
Rep. John Boehner, who was part of the Gingrich conversation, sued McDermott in his capacity as a private citizen, seeking punitive damages for violations of his First Amendment rights.[30] After U.S. District Judge Thomas Hogan ordered McDermott to pay Boehner for "willful and knowing misconduct" that "rises to the level of malice", McDermott appealed, arguing that since he had not created the recording, his actions were allowed under the First Amendment, and that ruling against him would have 'a huge chilling effect' on reporters and newsmakers alike. Eighteen news organizations – including ABC, NBC, CBS, CNN, The Associated Press, the New York Times and the Washington Post — filed a brief backing McDermott.[31] On March 29, 2006, the court ruled 2–1 that McDermott violated federal law when he turned over the illegally recorded tape to the media outlets, ordering McDermott to pay Boehner's legal costs (over $600,000) plus $60,000 in damages. On June 26, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated the judgment, deciding to re-hear the case with all nine judges.[32] However, a split 4 to 1 to 4 en banc decision in Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007) affirmed the three-judge panel, but on different grounds;[33] the Supreme Court declined review.[34] [35] On March 31, 2008, Chief Judge Thomas Hogan of the United States District Court for the District of Columbia ordered McDermott to pay Boehner $1.05 million in attorney's fees, costs and interest. McDermott also paid over $60,000 in fines and close to $600,000 in his own legal fees.[36]
The Ethics Committee formally rebuked McDermott in 2006, writing he had "violated ethics rules by giving reporters access to an illegally taped telephone call involving Republican leaders a decade ago. Rep. McDermott's secretive disclosures to the news media ... risked undermining the ethics process" and that McDermott's actions "were not consistent with the spirit of the committee."[37]
Previously, the Martins pleaded guilty to violating the Electronic Communications Privacy Act. In 1997, Gingrich was reprimanded by the House for providing false information to the Ethics Committee and he agreed to reimburse $300,000 in costs.
I meant to ping you also to my posting here at #433.
Thanks. I didn’t follow it all that closely—what got me was that some one could basically hear them talking. Glad to hear it wound up costing the SOBs who leaked it.