A lawyer for Democratic Rep. Jim McDermott told a federal appeals court Tuesday that McDermott should not be punished for giving reporters access to an illegally taped telephone call involving House Republican leaders.
In arguments that evoked the Pentagon Papers and other press freedom cases, lawyer Christopher Landau said McDermott had merely received the tape from a Florida couple and therefore had done nothing wrong.
A finding against McDermott could chill the news media’s ability to gather information on important public issues, Landau said.
“It’s hard to overstate the impact of the case on the media,” he said.
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, a Democrat from Washington state who gave reporters a recording of a 1996 call involving then-House Speaker Newt Gingrich, R-Ga.
A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled against McDermott in March. The 2-1 opinion upheld a lower court ruling that McDermott had violated the rights of Rep. John Boehner, R-Ohio, who was heard on the 1996 call. Boehner was then a Gingrich lieutenant and is now House majority leader.
The full nine-member appeals court vacated the ruling this spring and heard new arguments in the case on Tuesday. A ruling is expected next year.
Boehner’s lawyer, Michael Carvin, told the court that McDermott’s actions were clearly illegal. He compared McDermott to a “fence” who received stolen goods and then sold them.
McDermott’s actions were especially egregious because he received the tape in his capacity as a House ethics committee member who was sworn to confidentiality, Carvin said.
Judge David S. Tatel said that under Carvin’s interpretation, the New York Times and other newspapers that published the contents of the tape could be held liable.
“The argument to extend it to the New York Times is quite powerful,” Tatel said.
“I’m not representing the New York Times,” Carvin retorted. “I’m perfectly happy to throw them overboard.”
But Landau said a ruling against McDermott would be disastrous for a free press.
“You are basically saying Congress can indict the media if it is deemed they knew the information was unlawfully obtained,” he said.
The case is Boehner v. McDermott, 04-7203.