Get the Facts
Congressman Jim McDermott is a strong Democrat, a patriot, and a champion of the First Amendment. This is why the Republicans have been after him for eight years. Know the real story…
Right-wing Republicans Break the Rules: In 1997 Republicans were caught on tape link>> defying a mandate from the House Ethics panel to not conspire against any ruling regarding Newt Gingrich.
No Settlement for First Amendment Rights: For over 8 years Ohio Rep. John Boehner has been engaged in a frivolous lawsuit against Washington Rep. Jim McDermott for releasing this tape. The lawsuit pits the First Amendment against the Right to Privacy. Tale of the Tapes link>>
Standing up for Core American Values: Congressman McDermott, an outspoken leader and strong advocate for progressive issues, is being put in front of the political firing squad as an example and warning to others who stand up for core American values. See History below for complete case details.
With the growing sentiment that our country has been hijacked by special interests, this case amplifies the need to continue the battle for core American values.
Jim McDermott is committed to taking the fight back to Congress and the Bush-Cheney administration. Funded by individual contributions from people like you, Congressman McDermott and other leaders like him need our support.
Help the fight for American Values and Contribute to Congressman Jim McDermott’s Campaign today. Donate>>
In 1993, House Speaker Tom Foley appointed Jim McDermott co-chair of the House Ethics Committee. McDermott was appointed after only 4 years of service in the Congress. At the end of the 1993-4 session, Newt Gingrich, a Republican Congressman from Georgia, sought Ethics Committee approval of a proposal to use funds raised by a 501 (c-3) organization to launch a teaching and television course accompanied by distribution of teaching materials to a wide range of outlets.
McDermott and Ethics Committee co-chair Congressman Fred Grandy (R) both were concerned that Gingrich’s proposal used tax-deductible c-3 money to finance a project that would be primarily a political organizing tool, a commingling that violates federal law as well as various rules and regulations. A strong letter was written to Congressman Gingrich, cautioning against any project that did not follow all applicable laws, federal regulations, and Rules of the House, but granting approval with these caveats.
In 1995, Republicans took control of the House of Representatives, and Representative Nancy Johnson (R) of Connecticut was appointed co-chair of the House Ethics Committee with McDermott. The new Committee received a flurry of complaints against the new House Speaker, Mr. Gingrich, beginning with objections to his controversial multi-million dollar book deal with Rupert Murdoch. (This transaction was so problematic, it was later withdrawn.) Despite repeated Republican efforts to dismiss all charges against Speaker Gingrich before adequate investigation by the Committee had been conducted, McDermott insisted that the Committee proceed with the Gingrich investigation in a thorough fashion. This led to the appointment of a Special Counsel to work with the four Ethics Committee members assigned to investigate the charges: Representatives Porter Goss, Steve Schiff, Ben Cardin and Nancy Pelosi. This group of investigators worked in secrecy for nearly a year, found merit in various charges, and imposed upon the Speaker a fine of $300,000. A further condition accepted by the Speaker was agreement that he would not orchestrate a media response to downplay the penalties imposed for his ethics violations.
Before the resolution setting forth these conditions could be presented to the full Ethics Committee so that all members would be fully informed of the investigating team’s findings and sanctions, the Speaker organized a telephone conference call with House Republican leaders to craft and implement precisely the kind of media response that had been explicitly prohibited in the agreement between Mr.Gingrich and the Ethics Committee investigators. The parties to the conference call included Representative John Boehner of Ohio, as well as attorneys and staff personnel.
Mr. Boehner, on a trip to Florida at the time, used a cell phone to participate in the conference call. This phone call was intercepted and taped by two local residents, John and Alice Martin, who recognized Speaker Gingrich’s voice. It seemed an important call to them, so they brought their tape recording of it to their Representative, Congresswoman Karen Thurman, by whom they were told to give it to Congressman McDermott. They did so, and McDermott, who had had no contact with them before this encounter, did not see or speak with them again. They subsequently identified themselves to the press and to the Justice Department as the individuals responsible for illegally taping the conference call, and were fined $500 each.
McDermott listened to the tape and heard Speaker Gingrich describing the elements of the agreement he had entered with investigators, orchestrating a media response in outright violation of that agreement, and discussing the entire matter with individuals beyond the Congress. The discussion took place even though the investigators’ report had yet to be submitted to the full Ethics Committee. McDermott immediately recognized the gravity of the circumstances confirmed by the tape. He understood that the information on the tape was of great public import because it directly concerned the Speaker of the House of Representatives, one of the highest ranking officers of the United States Government. The conference call revealed the clear intention of this prominent public official to manipulate to his own advantage the press coverage of the investigation results.
That the Speaker had promptly and purposely violated his agreement with the Ethics Committee’s investigators could not be concealed or ignored. Accordingly, McDermott contacted reporters from national daily newspapers, and advised them of the tape and its contents. McDermott’s release of the tape recording of the conference call appropriately brought to public scrutiny the intention and the attempt of the Speaker and other House leaders deliberately to mislead the public by “spinning” the outcome of the Committee’s investigation. Although Congressman Boehner and other Republican leaders continued to press the Justice Department to pursue McDermott, the Department took no action of any kind.
The Ethics Committee's findings and sanctions sparked significant erosion of Speaker Gingrich's power. Newt Gingrich resigned on November 7, 1998.
Not satisfied with the Justice Department’s refusal to pursue the issue, the House Republican Leadership encouraged Representative Boehner to file a civil suit in the matter. He did so. This was and is the first time in the history of the Congress that one member has sued another. When the case was filed in the United States District Court for the District of Columbia, McDermott and his legal team moved for immediate dismissal, citing his First Amendment free speech protections. Federal District Court Judge Thomas Hogan granted that motion..
The Republican Leadership was not satisfied with this result either, and appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. The case was heard by a panel of three jurists whose 2-1 decision denied McDermott First Amendment protection for his release of the tape recording.
The case was immediately appealed to the U.S. Supreme Court where it was accepted for review, although a very similar case, Vopper v. Bartnicki, was accepted for oral argument. The Court ruled 6-3 in the Bartnicki case in favor of the First Amendment argument. The Supreme Court then reversed the ruling of the D.C. Circuit Court of Appeals in McDermott’s case, and sent it back to the Circuit Court of Appeals for reconsideration.
But the panel of Circuit Court judges, instead of applying the Supreme Court’s Bartnicki ruling, allowed the plaintiffs to amend the basis of their suit to attempt to escape the Bartnicki language. The Court of Appeals then referred the case back to the trial court in which it was first considered, the United States District Court for the District of Columbia, and the attention of Chief Judge Thomas Hogan.
After the favorable First Amendment ruling by the Supreme Court and while the case was still pending before the Circuit Court of Appeals, Congressman McDermott met with Congressman Boehner to discuss the possibility of a settlement.
On three occasions, Congressman McDermott attempted to craft mutually agreeable language in an effort to bring the matter to a close.
Rather than responding to McDermott's attempts to settle, Congressman Boehner and his Republican advisors continued to insist that McDermott admit wrongdoing and they refused to preclude a future ethics complaint against McDermott. Boehner and his advisors offered no settlement language of their own, choosing instead to issue misleading press releases implying that Congressman McDermott was unwilling to settle.
Contrary to GOP press releases, Congressman Boehner made no serious attempt to settle this matter - no written offer of settlement was ever made. It is clear that Congressman Boehner and his Republican advisors have no interest in settling this lawsuit, preferring to prolong the dispute until it no longer is politically useful to them.
The amended case continued at the District Court level, Chief Judge Thomas Hogan presiding. Depositions were taken, then both parties filed for a Summary judgment in the case, Boehner seeking award of damages, and McDermott seeking dismissal. Judge Hogan’s ruling this time was a reversal of his earlier decision: he denied McDermott’s claim of First Amendment protection of his actions. Further, he awarded Mr. Boehner $10,000 in statutory damages and $50,000 in punitive damages. An additional award of attorneys' fees was withheld until a pending appeal of Judge Hogan’s ruling is argued and decided. Nonetheless, Mr. Boehner has submitted an affidavit seeking $530,000 in attorneys' fees.
On December 28, 2004, in a move orchestrated by House Majority Leader Tom Delay, (currently under investigation for money laundering and in danger of being indicted as a felon), a ethics complaint arising from the tape case was filed against Congressman McDermott with the House Ethics Committee. In the November 22, 2004, issue of Roll Call, Mr. Delay remarked that House Minority Leader Nancy Pelosi and Representative Jim McDermott are, "the only Members who I know have been found guilty of violating federal law." Many suspect Delay’s move is an effort to barter his own ethics case for McDermott’s.
On November 15, 2005, the U.S. Court of Appeals for the D.C. Circuit heard McDermott's appeal to overturn an October 2004 ruling by U.S. District Court judge Thomas F. Hogan requiring McDermott to pay Boehner more than $600,000.
The panel of judges declined to make a ruling from the bench. The judges could announce their decision in a matter of days, weeks, months, or years. The October 2004 ruling came after 18 months of deliberation. The three most likely outcomes are: The court will 1.) remand the case for trial; 2.) return the case to Judge Hogan to reinterpret it in light of a 2001 Supreme Court ruling that favored our argument; 3.) Affirm Judge Hogan's ruling, in which case we might appeal again to the Supreme Court.
On February 6, 2006, Rep. John Boehner was elected to the position of House Majority Leader replacing the scandal-plagued Tom DeLay. However, Boehner's record is far from squeaky clean. For details, read this list of facts about his voting record and questionable activities.
On March 28, 2006, the three-judge panel of the U.S. Court of Appeals in D.C. decided in a 2–1 ruling to uphold the District Court’s summary decision in favor of Boehner. Their decision stated that McDermott must have known the tape was illegally recorded and thus could not use the First Amendment as a defense. Read the full decision, including Judge David Sentelle's strongly worded dissent.
On April 26, 2006, Jim McDermott ordered his legal team to file a Petition for Rehearing En Banc with the Circuit Court of Appeals for the District of Columbia. The petition requests that the full 12-member court agree to hear McDermott's First Amendment case, "…because the divided panel decided a constitutional issue of exceptional importance in a manner inconsistent with on-point Supreme Court precedent."
The defense of the First Amendment is at the heart of the McDermott case, and the petition says the recent divided ruling "... is both unsound in principle and unworkable in practice, and will chill the disclosure of truthful information on matters of public concern. Clear and authoritative legal guidance here is imperative, especially for the media, which routinely receive information in all sorts of ways from all sorts of sources."
McDermott said the decision to move forward is a reaffirmation of his belief that America cannot be free without free speech. "As a Member of Congress, it is my sworn duty to protect and defend the First Amendment. My opponent has been unwilling to settle this issue without subverting the First Amendment in the process. I am going to defend the First Amendment because freedom is too important to be subverted by censored speech."
On June 26, 2006, exactly two months after McDermott filed his Petition for Rehearing En Banc, the full panel of D.C. Circuit Court of Appeals announced that it will hear Boehner v. McDermott. By granting McDermott's request for a new hearing, the appeals court vacates the 2–1 judgment in favor of Boehner handed down in March. The hearing is set for September 28, 2006.
Now you are up to date. More twists and turns are sure to follow as the case continues through the judicial structure. Whatever direction they take, McDermott will continue to defend his First Amendment right to speak out for truthful public disclosure and full compliance with the law. Help the fight for American Values and Contribute to Congressman Jim McDermott’s Campaign today.
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Revision date: June 27, 2006
