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Boehner v. McDermott, Round V:

The U.S. Court of Appeals for the District of Columbia issued its en banc decision in Boehner v. McDermott, the long-running litigation between Republican Congressman John Boehner and Democratic Congressman James McDermott over whether McDermott violated federal law when he gave to the press a tape recording of an illegally intercepted cell phone conversation in which Representative Boehner participated. In a divided opinion, the D.C. Circuit affirmed the lower court's judgment in favor of Boehner.

The line-up of today's decision is quite interesting. The court effectively split 4-1-4. Judge Randolph wrote the majority opinion, holding that McDermott's disclosure of the tape was not protected by the First Amendment and vioalted House Ethics rules. He was joined by Chief Judge Ginsburg and Judges Henderson and Brown. Judge Sentelle wrote the dissent, arguing that McDermott's disclosure of the tape was fully protected by the First Amendment. His dissent was joined in full by Judges Garland, Rogers, and Tatel. Judge Griffith split the difference, joining the first part of Sentelle's dissent, but ultimately joining the majority. As Griffith explained:

Although I agree that Representative McDermott's actions were not protected by the First Amendment and for that reason join Judge Randolph's opinion, I write separately to explain that I would have found the disclosure of the tape recording protected by the First Amendment under Bartnicki v. Vopper, 532 U.S. 514 (2001), had it not also been a violation of House Ethics Committee Rule 9, which imposed on Representative McDermott a duty not to "disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee." Although the Court does not and need not reach the Bartnicki issue to resolve the matter before us, two previous panels in this case have held that the congressman's actions were not protected by the First Amendment. I believe it is worth noting that a majority of the members of the Court—those who join Part I of Judge Sentelle's dissent—would have found his actions protected by the First Amendment. Nonetheless, because Representative McDermott cannot here wield the First Amendment shield that he voluntarily relinquished as a member of the Ethics Committee, I join Judge Randolph's opinion in concluding that his disclosure of the tape recording was not protected by the First Amendment.
Is this the last we have heard of this case? I would suspect so. Although this is a fascinating case that presents some interesting questions, I doubt the Supreme Court would accept a petition for cert (although that prediction is worth even less than you paid for it).

JonC:
Does anyone know why Judge Kavanaugh was apparently recused?
5.1.2007 11:52am
Viscus (mail) (www):

(1) If the prediction is less than what we paid for it.
(2) And, we paid nothing for the prediction.
(3) Then, the prediction is worth less than nothing.
(4) And the prediction actually has a negative value.
(5) But the only way a prediction could have a negative value is if it were less than 50% likely to be true.
(6) Thus, the prediction is less than 50% likely to be true.
(7) Then, the opposite of prediction must be more than 50% likely to be true.
(8) The opposite of the prediction is that the Supreme Court will hear the case.
(9) Thus, in Adler's view, the Supreme Court will probably hear the case.
5.1.2007 12:06pm
Felix Sulla (mail):
Viscus: I'm not sure where they fit in that analysis precisely, but it seems to me you omitted the critical steps: (a) collect underpants; and (b) PROFIT! ;-)
5.1.2007 12:34pm
JohnO (mail):
JonC:

Is it possible the case was argued initially before Kavanaugh joined the court? The original argument appears to have been in October 2006, which seems from my memory to be about when Kavanaugh took the bench.
5.1.2007 12:52pm
blindgambit:
Yes, I think Kavanaugh was recused b/c the case was initially argued before he joined the court. Though, I don't know if that's a rule in the D.C. Circuit. As far as I can recall, circuits are free to craft their own rules on who may sit on en banc courts.
5.1.2007 1:25pm
KeithK (mail):
Felix, Felix, Felix. It's a) collect underpants, b) ... c) PROFIT! :-P
5.1.2007 1:30pm
JonC:
JohnO and blindgambit: Judge Kavanaugh's bio indicates that he took the bench in May 2006, several months before the case was re-argued en banc.
5.1.2007 1:32pm
Felix Sulla (mail):
KeithK: I am suitably humbled for having misquoted the Gnome test. I should be more exacting as to my South Park scholarship. ;-)
5.1.2007 1:33pm
JonC:
Perhaps the rule is that you can't sit en banc in the D.C. Circuit if you weren't on the court when the case was argued before the initial panel? That would explain Kavanaugh's recusal, but it would be odd rule, indeed.
5.1.2007 1:35pm
Respondent (mail):
A fascinating, but in my view, incorrect decision. It would seem to me that the only constitutionally sound theory that would allow laws of this sort under the first amendment is that people voluntarily taking up positions of authority can be made, as a condition of the position, to be silent as to certain confidential information they acquire through the work of their position itself. Thus, a lawyer, a doctor, and a member of clergy must keep certain confidences. A prosecutor or court reporter cannot reveal what goes on in the grand jury. IRS and DMV employees cannot leak records they acquire in the normal course of employment. (I would argue that grand jury secrecy laws are indeed unconstitutional as applied to involuntarily serving grand jurors.) In this case, McDermott leaked a tape that he acquired not by means of any subpoena power, but in the same way that any member of the public might have done so. The recorders of the conversation gave the tape to someone they thought might find it intresting and/or useful, but it can't be said that the ape was acquired through an act of employment. Finally, the fact that the House Ethics rules may have prohibited the leaking to the media should make no difference to this case. Since the tape wasn't acquired in performance of the legislative function, the leak was constitutionally protected and an ethics rule prohibiting it should be struck down as an unconstitutional condition.
5.1.2007 2:30pm
David Walser:
The recorders of the conversation gave the tape to someone they thought might find it intresting and/or useful.... Since the tape wasn't acquired in performance of the legislative function, the leak was constitutionally protected and an ethics rule prohibiting it should be struck down as an unconstitutional condition.


Which leak, the one made to McDermott or the one McDermott made to the media? You aren't arguing that the recorders of the conversation had a constitutionally protected right to leak the tape, are you? (I don't think you are. I'm just unsure.)

With regard to McDermott, it appears he was given the tape because he was a member of the House ethics committee. At least, that's a reasonable inference. If he received the tape because of his position on the committee, it would seem reasonable to hold that the committee's rules apply to his use of the tape.
5.1.2007 3:57pm
John425:
"Baghdad Jim" (McDermott) as he is known in these parts- is a scumbag of the first order. If there is any way to inflict additional damage on this country- "Baghdad Jim" will find and use it.
5.1.2007 5:02pm
JohnAnnArbor (www):
Evidence that Democrats are in favor of wiretapping--as long as it's against people they disagree with.
5.1.2007 6:47pm
Kevin Murphy:
With regard to McDermott, it appears he was given the tape because he was a member of the House ethics committee.

That's a sick joke, right?
5.1.2007 7:21pm
Moneyrunner43 (www):
Here's more.



Lawyers for 18 news organizations - including major television networks, The Associated Press, The New York Times and The Washington Post - filed a brief backing McDermott last year. They said a ruling against him could hurt the media's ability to gather information on important public issues.



Putting terrorists under stress and waterboarding is torture, according to the Media Lords, but illegally taping private phone calls and printing them to embarrass your political opponents is an importatn media right and "hurts the media's ability to gather information on important public issues."

Yeah, sure.
5.1.2007 9:43pm
Al Maviva (mail):
Yeah, these details about McDermott are great. But it still doesn't explain what a Wookie is doing on Endor.
5.1.2007 10:24pm
Skip (mail):
Kevin - yes, he received the tape because of his position on the Ethics Committee. The decision makes that quite explicit.
5.1.2007 11:51pm
Charley (mail):
Perhaps he should now be known as Wire Tapping Jim rather than Baghdad Jim.
5.2.2007 1:08am
L.J.:
Moneyrunner,

Yes, many people do indeed think suffocating alleged (or even actual) terrorists is worse than illegally taping phone calls between congressmen. I for one would hate to see it otherwise.
5.2.2007 12:05pm