Suit over tape of congressional Republicans call dismissed

WASHINGTON, D.C.–In late July, a federal judge dismissed Rep. John Boehner’s (R-Ohio) civil lawsuit against Rep. James McDermott (D-Wash) over McDermott’s disclosure to The New York Times of a recording of an intercepted telephone conference between Boehner and other House Republicans.

A federal district judge in Washington, D.C. held that even though the conversation was illegally taped, McDermott’s receipt of the recording was not prohibited by wiretapping laws. In addition, the judge concluded that the tape concerned matters of public significance and that McDermott’s disclosure of the tape was protected by the First Amendment.

Boehner was in Florida on vacation in December 1996 and used a cellular telephone to participate in the conference with House Republican leaders to discuss their response to the House Ethics Committee’s investigation of Gingrich.

A Florida couple intercepted the call on a police scanner and recorded the conversation. In January 1997, they delivered a copy of the tape to McDermott, who was the ranking Democrat on the House Ethics Committee at the time. The couple later pleaded guilty to wiretapping violations and paid fines of $500 each.

McDermott was not involved with the interception of the telephone call in question, but was sued under federal and Florida wiretapping statutes solely for disclosing the contents of the taped conversation.

Boehner had alleged in his complaint that McDermott violated wiretapping laws because he disclosed the tape to media with the knowledge or reasonable belief that it was obtained illegally. However, the judge concluded that the unlawful recording had been lawfully acquired and dismissed Boehner’s action.

The court’s ruling would apply to anyone who receives and publishes the unaltered contents of taped telephone conversations involving matters of public significance, including members of the media.

Rep. Henry Hyde (R-Ill.) wrote in an early August letter to Boehner that “the ruling is susceptible to being overturned on appeal” because Congress never intended the federal wiretap statute to allow an unlawfully taped conversation to be distributed with impunity. The letter was released by Boehner.

In mid-August, Boehner announced that he will appeal the decision. In order to finance the lawsuit with his campaign funds, Boehner had to agree not to keep any money awarded in damages if the lawsuit is successful. (Boehner v. McDermott; McDermott’s Counsel: Frank Cicero, Jr., Chicago)