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Justices steer clear of lawmakers' feud

  • Story Highlights
  • Case involves private phone call among lawmakers that was illegally recorded
  • Recording of phone call was later leaked to the media
  • Ruling means nearly $1 million penalty against Democrat will likely stand
  • Dispute has bounced back and forth between three federal courts
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From Bill Mears
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WASHINGTON (CNN) -- The Supreme Court refused to get involved Monday in a 10-year legal feud between two congressman over an illegally recorded private phone conversation that was later leaked to the media.

Rep. Jim McDermott, D-Washington, is facing nearly $1 million in damages in the case.

The resulting political firestorm over the leak aggravated already high tensions between the two parties.

Monday's decision not to act by the justices means a nearly $1 million penalty against Rep. Jim McDermott, D-Washington, will likely stand. The case is believed to represent the first time a Capitol Hill lawmaker had successfully filed a lawsuit against a fellow member.

At issue was whether House Minority Leader John Boehner's damages claim against McDermott would hold up under appeal. Boehner, an Ohio Republican, sued his colleague in 1998, two years after the phone call involving party leaders was intercepted.

McDermott claimed that since he did not do the actual recording, he had constitutional protection. Boehner countered that his personal privacy was violated.

The call occurred in 1996, when then-Speaker Newt Gingrich, R-Georgia, was about to admit wrongdoing in an ongoing House Ethics subcommittee investigation. Gingrich was hit by controversy for allegedly claiming tax-exempt status for college courses he taught that had political purposes.

Gingrich had agreed to issue an apology and not criticize Democrats, in exchange for not having potentially embarrassing public hearings on the matter.

Boehner was one of several high-ranking GOP congressmen on the conference call to discuss political strategy. According to court transcripts, Gingrich is heard praising a Republican staffer who was formulating a rebuttal to charges made by the Democrats that Gingrich had violated ethics rules.

The legal twist came when a Florida couple, John and Alice Martin, intercepted Boehner's nearby cell phone off a police scanner in their home, and began recording. Weeks later, the Martins gave the tape to McDermott, then ranking Democrat on the Ethics Committee. The couple believed they would have immunity by turning it over to lawmakers.

McDermott then played the tape to reporters from the Atlanta Journal-Constitution and the New York Times, while receiving anonymity as to its source.

House counsel had earlier advised members not to accept the tape, after it was initially given to the couple's Florida congresswoman.

The Martins later pleaded guilty to a federal wiretap violation and received a fine. Boehner then sued McDermott for disclosing an "illegally intercepted" call, under the Electronic Communications Privacy Act.

McDermott was sued as a private citizen and, as a result, did not enjoy added constitutional protections he might have received as a congressman performing his official duties.

The House Ethics Committee last year wrapped up its internal probe, saying McDermott "violated ethics rules," but chose not to punish him.

The case has bounced back and forth between three federal courts, with the trial judge granting Boehner $60,000 in damages and legal fees now totaling about $900,000. That judge said McDermott engaged in "willful and knowing misconduct" that "rises to the level of malice."

A federal appeals court upheld the judgment, concluding that since McDermott knew the call was illegally recorded, he was not shielded from liability.

Eighteen news organizations -- including CNN (a division of TimeWarner Inc.); the four broadcast networks; the Associated Press; and the New York Times -- filed a legal brief backing McDermott, saying the decision could seriously hamper the ability of reporters to talk with anonymous sources.

In a statement Monday, McDermott said he was "disappointed" that the justices had opted not to hear the case.

"I pursued this case based on my belief in the people's right to know," the statement said, "and I continue to believe it was my sworn responsibility to vigorously defend that right."

Boehner also issued a statement.

"As I've said many times: when you break the law in pursuit of a political opponent, you've gone too far," Boehner said.

"Members of Congress have a responsibility not only to obey the laws of our country and the rules of our institution, but also to defend the integrity of those laws and rules when they are violated."

Chief Justice John Roberts did not participate in the case, and no reason was given.

The case is McDermott v. Boehner (07-439). E-mail to a friend E-mail to a friend

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