SCRAPBOOK fans will remember a Dec. 21, 1996, conference call during which members of the House Republican leadership discussed pending Ethics Committee actions concerning then speaker Newt Gingrich. They will remember this phone call because a full account and partial transcript of it was published a few weeks later -- on Jan. 10, 1997 -- by the New York Times, in a front-page story under the byline of reporter Adam Clymer. Mr. Clymer had obtained a tape recording of the conversation from the Ethics Committee's then ranking Democrat, Rep. Jim McDermott of Washington state. Who had himself obtained the tape from a Florida couple, John and Alice Martin. Who had made the tape by illegally intercepting, on a police scanner, the cell-phone transmission of Rep. John Boehner of Ohio, then chairman of the House Republican Conference.
The Martins pled guilty to felony violation of the federal Electronic Communications Privacy Act and paid a fine. But McDermott's criminal exposure -- his disclosure of the recording to Clymer was on its face another felony -- remained unresolved, the subject of a typically slow-footed and partisan-tinged Justice Department investigation. So in 1998, Boehner sued McDermott for civil damages, as the privacy law allows. And now, finally, as a result of that litigation, McDermott would appear to be in trouble.
U.S. district judge Thomas Hogan had initially dismissed Boehner's lawsuit, arguing that the privacy law was unconstitutional as applied to McDermott: that McDermott had a First Amendment right to deliver an illegal tape recording to the New York Times. Two weeks ago, however, the Court of Appeals for the Washington, D.C., Circuit rather brutally overruled Hogan and reinstated Boehner's suit. And did so with particularly choice words for Jim McDermott.
Here was Judge David Sentelle: "Knowing of these felonies, a Member of the Congress of the United States, the elected representative of his people, the sworn servant of the law, dealt with the felons, received from them their feloniously obtained communications, and converted it to his own use." And that was in dissent! On the law, Sentelle sided with Hogan.
But his two colleagues on the circuit court were not so generous. Douglas Ginsburg found no Supreme Court precedent for the proposition that full First Amendment protections apply to unlawfully obtained information. "McDermott did not in fact lawfully obtain the tape," Ginsburg wrote separately in concurrence. "McDermott knew the transaction was illegal at the time he entered into it."
Judge Ray Randolph, writing the majority opinion, refused even to accept the possibility that McDermott's "speech" rights were at issue in the first place. "What speech?" Randolph asked, mockingly. After all, the congressman has not been sued for anything he said; he has been sued for delivering an illegal recording to a reporter. "McDermott's behavior in turning over the tapes doubtless conveyed a message, expressing something about him," Randolph dryly noted. But the message is not a flattering one: "In receiving the tape, McDermott took part in an illegal transaction." The First Amendment is not a license to break the law.
The D.C. Circuit has as much as announced that Rep. Jim McDermott is a felon. Shouldn't the House now take steps to expel him?