WASHINGTON – As a senior member of the House ethics panel, Democratic Rep. Jim McDermott had an obligation not to disclose the contents of an illegally taped telephone call involving House Republican leaders, a lawyer for one of the House Republicans said Thursday.
Just as a federal judge should not reveal confidential information about a case, McDermott should not have given reporters access to the taped telephone call, regardless of how it was obtained, lawyer Michael Carvin said.
“He had a duty not to disclose; therefore, he can’t claim First Amendment rights” allowing him to make the tape public, Carvin told a federal appeals court. “Any third-grader would know it’s absolutely improper.”
Carvin represents House Minority Leader John Boehner, R-Ohio, who was among several GOP leaders heard on the 1996 call, which involved ethics allegations against then-House Speaker Newt Gingrich, R-Ga.
McDermott, D-Seattle, who was then serving on the ethics panel, 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. On Thursday, it heard a second round of arguments, this one focused more narrowly on House rules and the obligations of ethics committee members.
The ethics panel said in a report released in December that McDermott had failed to meet his obligations as a committee leader by giving reporters access to the taped call.
McDermott’s actions “risked undermining the ethics process regarding” Gingrich and “were not consistent with the spirit of the committee’s rules,” the report said.
While Carvin said the report showed McDermott had violated House rules, McDermott’s lawyer disputed that. In fact, the committee said McDermott violated only the spirit of the committee’s rules, said lawyer Christopher Landau.
“They did not find he violated House rules,” Landau said.
McDermott’s obligations as an ethics member, sitting in judgment of a colleague, could be crucial as the appeals court weighs the case. Judge A. Raymond Randolph compared McDermott to an agent from the Internal Revenue Service who discloses confidential information about a taxpayer.
Landau rejected that comparison, saying that members of Congress are neither judges – as Carvin argued – nor tax agents. Instead they are elected officials who must adhere to House rules, he said.
“The court has to be careful not to go further than Congress in interpreting Congressional rules,” Landau said after the hearing.
The House panel took no further action against McDermott beyond release of its Dec. 11 report.
Lawyers for 18 news organizations – including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post – have filed a brief backing McDermott in the civil case. A ruling against him could chill the media’s ability to gather information on important public issues, they said.
The case is Boehner v. McDermott, 04-7203.
Talk to us
> Give us your news tips.
> Send us a letter to the editor.
> More Herald contact information.
