BY PAUL BARTON
Enquirer Washington Bureau
WASHINGTON -- When Rep. John Boehner's re-election campaign sends out fund-raising letters these days, it's not always about winning in November. Mr. Boehner is asking supporters to help him win in the courtroom as well, in what many view as a political grudge match against Rep. Jim McDermott, D-Wash.
It is a face-off between two of the most partisan members of the House.
In a federal civil suit, Mr. Boehner wants to establish his claim that Mr. McDermott violated his privacy and the federal Electronic Communications Privacy Act when a transcript of one of Mr. Boehner's cellular phone calls to other GOP leaders showed up last year in the New York Times and other newspapers.
"Will you keep fighting with me?" Mr. Boehner, R-West Chester, said in one of the fund-raising letters related to the case.
"The lawsuit against McDermott will be expensive. They'll try every legal trick their Washington lawyers can think of so the truth won't be heard."
Mr. Boehner's staff said the amount of money raised so far for the case wasn't readily available.
But the fourth-ranking House leader and chairman of the House Republican Conference obtained approval from the Federal Election Commission to use his official campaign committee, Friends of John Boehner, as a way to pay for the lawsuit.
Mr. McDermott, meanwhile, the former ranking Democrat on the House Ethics Committee, says the mere fact Mr. Boehner is sending out such fund-raising letters is a sign that his lawsuit is more about politics than privacy.
"His conduct shows it's a matter of public interest," said Frank Cicero Jr. of the Chicago law firm of Kirkland & Ellis.
"This story did not appear on page one of the New York Times (Jan. 10, 1997) because John Boehner's phone call was intercepted." Confusing?
Perhaps. But it's in keeping with what has become an out-of-the-ordinary political feud that started when Mr. Boehner placed a cellular phone call to House Speaker Newt Gingrich and other Republican leaders on Dec. 21, 1996, while stopped outside a Waffle House restaurant in Florida.
The case is even linked by some to the controversies over the publication of transcripts of Watergate defendant Webb Hubbell's prison phone calls to his wife, and the phone calls between Monica Lewinsky and Linda Tripp that the latter taped.
The outcome of the Boehner-McDermott case could have First Amendment implications as well.
And it's the first time one sitting member of Congress has sued another, at least in the modern era.
Mr. Boehner is seeking $10,000 plus punitive damages and attorney fees. Anything not needed to cover his own legal expenses, he said, will go to charity.
Mr. Boehner placed his call as he was taking his family on a Christmas vacation.
A couple of Columbia County, Fla., Democratic activists, John and Alice Martin, happened to be listening on their police scanner and recorded the call.
Mr. Boehner and Mr. Gingrich were discussing how the Republicans should handle the public relations fallout from a House Ethics Committee finding against Mr. Gingrich that ultimately resulted in the speaker's being assessed a $300,000 fine.
The transcript passed through Democrat hands to Washington where Mr. McDermott, then ranking Democrat on the Ethics Committee, allegedly leaked it to the Times, the Atlanta Journal-Constitution and Roll Call.
Mr. Boehner cites the Electronic Communications Privacy Act in saying it is not only against the law to intercept such a cellular telephone conversation, but also for anyone to disseminate information that they know was gathered in such an illegal fashion.
Democrats, however, were convinced that the tape showed Mr. Gingrich had violated an agreement with the Ethics Committee to not launch a public relations counterattack against its findings. And Mr. McDermott's defense in U.S. District Court in Washington, D.C., against Mr. Boehner states that any dissemination of such a transcript to newspapers is protected under the First Amendment and that the First Amendment protections override the electronic communications statutes, state or federal.
"If there is any principle that, at least since the days of the Alien and Sedition Acts, has been the bedrock of our constitutional freedom, it is this: A citizen cannot be punished for disseminating information critical of a public official's performance or his or her duties," Mr. McDermott's legal filings claim.
Experts on freedom of speech are not sure about the strength of his claim.
"It is a certainly a novel First Amendment issue," said Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia.
Courts have not allowed defendants to stand behind the First Amendment when copyrighted material was illegally disseminated, he said.
But in some cases in which the media has broadcast sensitive information such as the names of rape victims or juvenile defenders, the courts have protected them.
"It's a fascinating question," Mr. O'Neil said.
But David Cole, constitutional law professor at Georgetown University, said even public officials need some privacy.
"If everything a public official ever said was open to the public, they would not be able to govern in an effective manner," Mr. Cole said.
Meanwhile, some observers said the Boehner case could provide a legal precedent that would help President Clinton in a possible impeachment hearing.
"They (Clinton allies) can rely on Boehner's position to contest the use of at any impeachment hearing of all recordings made by Linda Tripp of her erstwhile friend, Monica Lewinsky," writes Washington, D.C. lawyer David M. Dorsen in The Hill, a publication covering Congress.
Mr. Boehner's staff considers that far-fetched.
More to the point, they say, Democrats in Congress should not complain about the publication of Mr. Hubbell's phone calls from prison if they are not upset about what happened to Mr. Boehner.
"None of these staunch defenders of privacy rights has spoken one word about the members and the staff who violated the rules of the House and federal law in a plot to illegally release the contents of my illegally recorded cell-phone conversation," Mr. Boehner said.
