Court: Congressman Had No Right to Disclose Gingrich Call

By Lee Russ

Monday, May 28, 2007 at 09:54 PM

More than 10 years ago a cell phone conversation between Congressman John Boehner (R-OH), the current House Minority Leader, and Newt Gingrich, along with various other GOP types, was released to the media. It showed Gingrich planning a public relations campaign to spin the recent House Ethics Committee decision to fine Gingrich $300,000. This month, the federal Court of Appeals for the District of Columbia decided that Congressman Jim McDermott (D-WA) could be held liable to Boehner for invading his privacy by releasing that tape to the media, even though the contents were true and McDermott was not the one who had recorded Boehner's call.

You can find the convoluted tale of all the court proceedings, including a remand by the US Supreme Court, either in the latest court opinion at the link above, or at the web site McDermott has set up for his legal defense fund.

The potentially dangerous point of the recent ruling is that despite Supreme Court precedent that the First Amendment is a defense to violations of the law under which Boehner sued, McDermott has narrower First Amendment rights than most folks, because as a member of the House Ethics Committee, he was covered by a House Rule which stated that:

Committee members and staff shall not disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee.

Mind you, the court didn't say that McDermott could be disciplined by the House for breaking that rule, it essentially said that because that rule had the effect of limiting his First Amendment rights to some degree, he couldn't claim the First Amendment as a defense to the civil suit by Boehner. How's that for odd?

The dissent in the most recent case found that decision ridiculous:

It does not follow that Representative McDermott’s violation of a House Committee rule deprives him of a First Amendment defense to every other nondisclosure law, including § 2511(c) – which in this case is unrelated to whatever "special duty of nondisclosure" McDermott may have had as a member of Congress.

Even odder is that the majority determined that the House Rule on which it relied was not ambiguous simply because the House itself had interpreted the rule the same way--ignoring the fact that this "interpretation" by the House occurred after Boehner filed suit against McDermott, and after the Republicans took control of the House and the House Ethics Committee, and shortly before the House reverted back to Democratic control. It also ignored the fact that the interpretation by the House Ethics Committee merely noted that McDermott's actions in releasing the tape had been "inconsistent with the spirit of the applicable rules." That's the sprit, mind you, not the substance.

That's quite an odd opinion. Because there's a House Rule, the spirit of which was violated according to the departing Republican majority, McDermott can't assert a First Amendment defense to a civil suit for money damages by another member of the House, for releasing to the media a tape of then-Speaker Gingrich plotting with the plaintiff in the civil suit to violate Gingrich's agreement with the House Ethics Committee.

Does something seem awry here?