[Cross-posted at Daily Kos]

As many of you know, last Saturday the Seattle Kossacks had a BBQ. You may not know a well known Daily Kos member – our Congressman, Jim McDermott, attended. He had lots of questions about “Blogs” and Daily Kos. We also had an opportunity to discuss quite a few issues with him:

  • His visit to Darfur which was covered in an interview by Armando.
  • The HIV/AIDS situation in Africa.
  • The current atmosphere in Washington D.C.
  • The ongoing frivolous lawsuit involving Congressman McDermott and Ohio Rep. John Boehner. This is not breaking news, but there are some upcoming events that could affect our Representatives and increase the already hostile political environment.

(Pictures of the BBQ are here)

[Congressman McDermott responds in the Kos diary to clarify some points about what is at stake here.]
This diary is about the last issue. This case is important because it is part of the ongoing efforts of the Republicans to silence the Democratic minority. If the attack is successful on one of the most outspoken members of the House of Representatives – other attacks will follow. We need to let the elected officials that stand up to this Administration know that we have their backs. Below is a brief outline of the ongoing proceedings for those of you unfamiliar with the case.

Please visit Congressman McDermott’s site (directly below) to see what you can do to help defend the members of our Party that actually speak out.

If we don’t stand up for those that represent our position, they may be successfully silenced. Then they can’t stand up for us.

From the McDermott for Congress website (I’ve made some editing changes to make it brief and all emphasis is mine)

In 1997 Republicans were caught on tape defying a mandate from the House Ethics panel to not conspire against any ruling regarding Newt Gingrich.

<snip>

 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)

<snip>

In 1995 . . . the [new] House Ethics . . .  received a flurry of complaints against the new House Speaker, Mr. Gingrich . . .  Despite repeated Republican efforts to dismiss all charges against Speaker  . . .  McDermott insisted that the Committee proceed with the Gingrich investigation in a thorough fashion . . .  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.

Speaker Gingrich then did what any good Republican does when told not to “spin” something in a deal with an Ethics Committee – he calls his friends to spin it for him. The parties to the conference call included Representative John Boehner of Ohio, as well as attorneys and staff personnel. Tom DeLay and Dick Armey also participated in the call.

This is where it begins to get complicated. In a bizarre twist, the phone call was accidentally intercepted and recorded. The couple recognized Gingrich’s voice and wanted to get it to Congress. After passing through a series of steps, Congressman McDermott was given a tape of the phone call. McDermott realized the importance of the call and released it to the media.

This was the beginning of the end for Speaker Gingrich. He resigned on November 7, 1998. Republicans pushed the Justice Department to take action against McDermott. The Justice Department said, “No.”

Then the Republicans persuaded Boehner to file a civil suit against McDermott.  This was the first time in the history of our Country that one member of Congress sued another member.

Federal District Court Judge Thomas Hogan granted a motion for immediate dismissal. The Republicans appealed. The Appeals Court determined that Congressman McDermott was not protected under the First Amendment.

US Supreme Court Sides with McDermott

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.

When the case was sent back to the lower court, the plantiffs changed the language of the suit to bypass the ruling of the Bartnicki case.

Congressman McDermott has made three attempts to settle this with Congressman Boehner to put the matter behind them. There was a GOP press release stating that Congressman Boehner attempted to settle the issue, but there has been no written offer ever presented. They want McDermott to admit to wrongdoing and “refused to preclude a future ethics complaint against McDermott”. Many feel the Republicans will be interested in settling the case when it is “no longer politically useful” for them to continue.

The Case Continues

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.

Delay Joins Fray

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. Donate

This issue does not just affect those of us in Washington State. Now that the Texas court has found the DeLay group violated the law, the resolution of the McDermott issue will help clear the way for the Ethics Committee to investigate DeLay.