New Twist in McDermott Tape Case

House lawyers are asking a federal judge to quash subpoenas sent to five GOP lawmakers by Rep. Jim McDermott, who is battling a lawsuit filed by Rep. John Boehner (R-Ohio) over a taped phone call that was leaked by the Washington Democrat in 1997.

Three of the Republican lawmakers - Reps. Nancy Johnson (Conn.), Porter Goss (Fla.) and David Hobson (Ohio) - were scheduled to be deposed later this week. All three served as members of the House ethics committee in 1997 as the panel grappled with its investigation of then-Speaker Newt Gingrich (R-Ga.).

The other two subpoenas went to House Majority Leader Dick Armey (Texas) and House Majority Whip Tom DeLay (Texas), who both participated in the intercepted phone conversation among GOP leaders on how to handle the fallout of Gingrich's settlement with the Committee on Standards of Official Conduct.

Boehner, who participated in the conference call from a cell phone while vacationing in Florida, is suing McDermott for violating his privacy. The phone call was intercepted by a Florida couple who taped the conversation and then gave the tape to McDermott, who was senior Democrat on the ethics panel at the time.

McDermott admitted in court papers filed last month that he played the tape for two reporters. He maintains that his actions were protected by the First Amendment because the taped conversation was of significant public interest in demonstrating a potential violation of an agreement by Gingrich not to spin his ethics reprimand.

Boehner is scheduled to be deposed June 4. As the plaintiff, he is subject to questioning during the discovery phase of the case. In addition to the lawmakers, several former top GOP aides who are now lobbyists have also received subpoenas, including former Gingrich Chief of Staff Dan Meyer and former Armey aide Ed Gillespie. Gingrich's former attorney, ex-Rep. Ed Bethune (R-Ark.), has also been served.

The case, considered unprecedented by legal experts, has dragged on for four years bouncing from court to court. Each side is currently conducting discovery after the case was sent back to U.S. District Judge Thomas Hogan earlier this year.

The move to kill the subpoenas was not unexpected. Lawmakers enjoy constitutional protection against a host of legal inquiries and the House general counsel's office zealously defends those rights against any attempted infringement.

The twist in this case is that the subpoena is not coming from an aggressive prosecutor or disgruntled constituent, but rather from one of the House's own Members.

The latest struggle over subpoenas represents another of the lawsuit's topsy-turvy features. In 1998, McDermott opposed subpoenas from a grand jury investigating the case by citing the Constitution's Speech or Debate Clause, the same defense now raised by the three GOP former ethics panel members. And Armey, who is fighting the subpoena, appears to be reversing a stated willingness to testify.

The Majority Leader told Roll Call in March 1998 that he would be willing to be deposed in Boehner's lawsuit. "It's basically what I do all my life," he said at the time. "People ask me questions and I tell the truth."

It's not clear when Judge Hogan - who has previously expressed his exasperation at having the court referee a fight between two politicians - will rule. McDermott's attorney, Frank Cicero, said he will likely oppose the effort to quash the subpoenas. He said he may reconsider proceeding with some of the depositions based on how the June 4 Boehner deposition goes.

"I think we'll be able to demonstrate why we are entitled to have testimony from some of these people. And I don't think that the blanket quashing of the subpoenas that they are arguing for is justified," Cicero said.

Despite the unusual Member-vs.-Member aspect of the case, the arguments made by House General Counsel Geraldine Gennet and her deputy, Kerry Kircher, to quash the subpoenas were little different from the arguments often made against outside parties who seek to pierce the legislative privilege shield. And in this particular case, the testimony sought by McDermott is not just relevant to his lawsuit, the counsel's brief maintained.

First, they argued that the lawmakers are just too busy with other duties and pointed out that senior government officials are subject to deposition only in extraordinary circumstances. McDermott, they argued, has not met the test defined in dozens of cases that would allow the questioning of busy, high-ranking government officials.

The motion cited an exhaustive list of the duties and assignments of each of the Republican lawmakers and noted that they "are very busy and have many important responsibilities. Compelling them to prepare for and sit through depositions about events that occurred more than five years ago quite obviously would interfere with the discharge of those responsibilities."

The counsel's brief argued that the information sought by McDermott is not relevant to his case against Boehner.

Cicero, McDermott's attorney, wrote in letters to the general counsel that he wanted to question the three former ethics members on whether they believed the conversation captured on the tape violated the terms of the agreement with Gingrich. But the House lawyers said they could not discern any link between this information and Boehner's claims or McDermott's defenses.

Regarding the Armey and DeLay subpoenas, the counsel's office argued that while the Texans "may have opinions on this subject, they lack first-hand factual knowledge of the disclosure of the tape, and their personal opinions about Representative McDermott's conduct are not particularly relevant to this proceeding."

But the core argument - made most forcefully in the motions involving Johnson, Goss, and Hobson- focused on the Constitution's Speech or Debate Clause, which provides that legislators may not be questioned in the courts about their legislative activities. In addition, the subpoenas to Johnson, Goss, and Hobson would force them to discuss matters that are deemed confidential by House rules.

"The subpoenas ... constitute an extraordinary effort to use the judicial process to pry into the inner workings of the Ethics Committee, and to obtain information from Committee members that House and Committee rules deem confidential," the brief said, arguing that the Constitution's rule-making clause prohibits outside interference in internal matters.

Flashback to 1997:

KWAME HOLMAN: Even the most imaginative of political fiction writers would be hard pressed to top the tale Alice and John Martin told yesterday.
ALICE MARTIN: We’re just scared.
JOHN MARTIN: We’re just scared.
ALICE MARTIN: We really are.
KWAME HOLMAN: There they were on December 21st, they said, driving from their home in Fort White, Florida, to do some Christmas shopping in nearby Lake City. They were listening to a police scanner John Martin had gotten for his birthday. Also, there was a small cassette tape recorder in the car.
JOHN MARTIN: We kind of record stupid jingles and stuff off the TV set--off the TV and off the radio in the car and--
KWAME HOLMAN: At the same time the Martins were on the road so was Congressman John Boehner, a top member of the House Republican leadership. He was driving through the Lake City area, the last leg of a trip from his home in Ohio, to Marco Island off of Florida’s West Coast. But then Boehner pulled off the road and picked up his car phone to join a conference call.
ALICE MARTIN: I was excited. I mean, I was so excited to think that I actually heard a real politician’s voice.
KWAME HOLMAN: The Martins picked up the call on the police scanner and after a few minutes began recording it.
JOHN MARTIN: We thought it was just a part of history really. I mean--
KWAME HOLMAN: Among those participating in the conference call with Boehner were Republican Majority Leader Dick Armey, Republican Whip Tom Delay, New York Congressman Bill Paxon, and House Speaker Newt Gingrich, discussing possible responses to Ethics Committee charges against Gingrich to be disclosed later that day.
ALICE MARTIN: We’re going to have a grandson at the end of January, and we were thinking how neat it would be to play this tape for him and him hear the voices of people that we thought were important. That’s really all it was going to be is a little tape we put aside and when he was old enough to hear it, he could hear it.
KWAME HOLMAN: Included on the tape reportedly is this conversation: Congressman Paxon: "If we have several hours or a day go by when our members are out there without a response, it will be a disaster. That’s right." Congressman Armey: "Right." Paxon: "When will we see your statement, Newt?". Speaker Gingrich: "My guess is--and I think they are running about 15 minutes late--my guess is we will have our statement out before noon." The Martins, long-time Democrats, gave the tape to Florida Congresswoman Karen Thurman, who later gave it back to the Martins and recommended they give it to Congressman Jim McDermott, the ranking Democrat on the Ethics Committee investigating Gingrich. In Washington last Wednesday the Martins waited for McDermott outside the Ethics Committee room in the capitol.
REPORTER: Had you ever met Mr. McDermott before?
ALICE MARTIN: Oh, no, no.
REPORTER: Did you know what he looked like?
ALICE MARTIN: We had a vague idea that he had white hair from physical description and that way, so we went back and we went back behind where the cameras were, and we asked, I think there was a policeman or a security guard if he could help us because we weren’t exactly sure what Mr. McDermott looked like, and we said, when we see him, could you, could you point him out to us, we need to give him something. And he said, oh, sure. So it seemed like in just a few minutes Mr. McDermott became--coming down the hallway--we asked to see him, and we told him we had something to turn--we told him we had something to turn over to the Ethics Committee, and he asked us who we were. He took the envelope in his hand and he felt where the tape was, and he said he would listen to it. And then he asked if there was any way to get in touch with us. And so my husband gave him one of his STPNEA cards, and he said, thank you, and we said, thank you, and we left.
KWAME HOLMAN: Two days later the contents of the tape were on the front page of the "New York Times." The tape potentially could cause problems for Newt Gingrich, who had made a deal with the Ethics Committee not to orchestrate a response to its charges. But the tape might cause problems for McDermott as well because federal law prohibits intentionally intercepting telephone calls or intentionally disclosing their contents. Late this afternoon McDermott announced he will recuse himself from any further work on the Gingrich ethics matter. As for the Martins, they too could be prosecuted for their actions.
JOHN MARTIN: I just felt that--that if I brought this tape and handed it over that there would be nothing against me because I didn’t use it in a court of law. I felt that the Ethics Committee was like a court of law, but you know--
LARRY TURNER, The Martins’ Lawyers: My hope is that once it’s understood that these folks are Mr. and Mrs. John Q. Citizen, who happened to discover something they felt was pertinent to the Ethics Commission and did what I think we want citizens to do, which is take it to the commission responsible for the investigation and say, here, you do what’s right, my hope is that those who are responsible for making prosecuting decisions will decide this shouldn’t be prosecuted.
KWAME HOLMAN: The entire tape episode has been turned over to the Justice Department for investigation.

Excerpted from: Online Newshour (Speaker Phone) (the Martins' quotes can also be found elsewhere on the web)

Found this in a 1997 NY Times article (posted on another website):

The New York Times, January 19, 1997, WIR, p. 5.

At the New Frontier of Eavesdropping

http://www.cryptosoft.com/snews/jan97/19019700.htm

It was only as recently as 1967 that the Supreme Court, in Katz v. United States, determined that the F.B.I.'s use of electronic devices to listen to and record telephone conversations without a warrant constituted a violation of the Fourth Amendment's unreasonable search and seizure provisions.
That ruling defined many modern notions about privacy and freedom from high-tech surveillance. But while the 1986 Electronic Communications Privacy Act extended earlier laws to include privacy protection for cellular telephone users, it also reduced the penalty for intercepting such communications from a felony to a $500 fine.
Moreover, the law specifically exempted from protection eavesdropping on electronic transmissions between home portable telephones and base stations.

So it would seem that McDermott is saying that his First Amendment protections trump the phone call participants' Fourth Amendment protections.

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