SEATTLE — Rep. James A. McDermott, D-Wash., is appealing a court ruling that found he should pay Rep. John A. Boehner, R-Ohio, more than $600,000 for leaking an illegally taped telephone conversation to reporters.
The notice of appeal, filed Nov. 18 with the U.S. Circuit Court of Appeals for the District of Columbia, stemmed from a decision last month in which U.S. District Judge Thomas F. Hogan held that McDermott’s “willful and knowing misconduct rises to the level of malice.”
Boehner was not surprised by the latest move in a six-year legal battle and expects to prevail, said spokesman Steve Forde.
“Congressman Boehner is intent on pursuing this,” Forde said. “We continue to believe the strongest statement is the ruling Judge Hogan put forth.”
McDermott issued a statement repeating his longstanding claim that his actions were protected under constitutional guarantees of free expression.
“From the very first, my assertion has been that it’s a First Amendment question,” McDermott said. “The American people can only make reasonable judgments (about their government) if they know what‘s going on...
“It’s a core principle, and it’s important to make it an issue and push it as far as you can.”
Losing the appeal could boost his potential liability by thousands of dollars in additional legal costs, but “the principle of the First Amendment is too important ... sometimes you say, ‘I can’t walk away from the principle,’ ” he said.
Both were re-elected easily Nov. 2, McDermott to a ninth term and Boehner to an eighth term.
The case stemmed from a tape that a couple in Florida made and gave to McDermott on Jan. 8, 1997, of Boehner using his cellular telephone in a conference call on a House Ethics Committee investigation of then-House Speaker Newt Gingrich.
McDermott, then the ranking Democrat on the committee, leaked the tape to The Atlanta Journal-Constitution and The New York Times.
Gingrich was later fined $300,000 and reprimanded by the House, and he resigned his seat in November 1998. The couple pleaded guilty to unlawfully intercepting the call, and each was fined $500. McDermott resigned his seat on the Ethics Committee.
McDermott never was charged with a criminal offense, but Boehner filed a lawsuit in 1998 accusing him of violating state and federal wiretapping laws.
A federal judge ruled that McDermott’s actions were protected by the First Amendment, but the Supreme Court overturned that finding and returned the case to the lower courts for further consideration.
Hogan determined in August that it was illegal for McDermott to accept the tape and that, as a result, releasing the tape to reporters was not protected by the First Amendment.