Congressman loses taped-call ruling

updated 2:25 p.m. ET May 1, 2007

WASHINGTON - Rep. Jim McDermott had no right to disclose the contents of an illegally taped telephone call involving House Republican leaders a decade ago, a federal appeals court ruled Tuesday.

In a 5-4 opinion, the U.S. Circuit Court of Appeals for the District of Columbia ruled that McDermott, a Washington Democrat, should not have given reporters access to the taped telephone call.

McDermott’s offense was especially egregious since he was a senior member of the House ethics committee, the panel ruled.

When he became a member of the ethics panel, McDermott “voluntarily accepted a duty of confidentiality that covered his receipt and handling of the ... illegal recording. He therefore had no First Amendment right to disclose the tape to the media,” Judge A. Raymond Randolph wrote on behalf of the court. Four judges agreed with him.

In a sharp dissent, Judge David B. Sentelle said that under the majority’s ruling, “no one in the United States could communicate on this topic of public interest because of the defect in the chain of title,” that is, the fact that the tape was illegally obtained.

“We do not believe the First Amendment permits this interdiction of public information,” Sentelle wrote on behalf of himself and three other judges.

GOP leaders heard on call
The ruling upholds a judgment in favor of House Minority Leader John Boehner, R-Ohio, who was among several GOP leaders heard on the December 1996 call, which involved ethics allegations against then-House Speaker Newt Gingrich, R-Ga.

McDermott, a Washington state Democrat who was serving on the ethics panel at the time, leaked the tape to The Atlanta Journal-Constitution and The New York Times, which published stories on the case in January 1997.

Gingrich, who was heard on the call telling Boehner and others how to react to allegations, was later fined $300,000 and reprimanded by the House.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled against McDermott last March. The 2-1 opinion upheld a lower court ruling that McDermott had violated Boehner’s rights.

The full nine-member appeals court later vacated the ruling and heard arguments in the case last fall and again in January.

McDermott and Boehner could not immediately be reached for comment.

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