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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)
Update [2005-5-27 22:44:36 by SeattleLiberal]: Congressman McDermott responds below 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.


 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)


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.

Originally posted to SeattleLiberal on Fri May 27, 2005 at 05:13 PM PDT.

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Comment Preferences

  •  Keep in mind (4.00)
    I am not a lawyer so details may be incorrect.

    Since Congressman McDermott is now an "official" member of Daily Kos, he knows I am posting this.
    So, Congressman, if I am way off on some details please correct me.

    •  Dude (3.91)
      I sooo wish I could have been at that picnic.
    •  The First Amendment (4.00)
      Dear Liberal Seattle,  It is gratifying to find out that people actually take the time to read the material in Websites.  The Community of bloggers remains pretty mysterious but like the drums in my beloved Africa I know they are speaking to many I can not see.

      Your abbreviated account of my First Amendment saga is essentially correct.  It is very easy to get lost in the weeds of the details of an 8 year court struggle so let me focus a little bit.

      A democracy can not survive in the absence of the right of free speech.  The people must be able find out what is happening through a variety of communication means.  Governments often try to stifle the public's right to know.

      This case is not about me although I am the ostensible defendant, for the larger issue is the right of the press to gather and disseminate information from whatever source.   The Amici briefs which will support my case in imminent filings will clarify the press's fear about punishing those who are their sources.

      The Pentagon Papers were obviously not legally obtained by Daniel Ellsberg Yet the publishing by the NYT was given  First Amendment protection.  This present case retreats from the standard of those days at our own peril.  I undertook this battle because I believe the people have a right to know above all else  

      •  Thank you Congressman McDermott (4.00)
        I hope that this issue is taken seriously by Democrats everywhere.

        I appreciate living in a community where you and both Senator Murray and Senator Cantwell are truly representing me. It is hard to not take this for granted.

        Thanks again for your response.

      •  this has only gotten more important (4.00)
        as the press has become more cowed and compliant to the regime in power. There MUST be legal protections.
      •  Thanks, Jim (4.00)
        I just recently moved to Ballard from the wasteland of Renton. The best thing about the move is that I can now proudly say that Jim McDermott is my representative in the United States Congress.

        Thanks for exposing Newt Gingrich, Jim, and thanks for your continued efforts on behalf of the American people (and, you know, for Ballard).

        --Erik Mona
        Author, Editor, Diet Dr. Pepper Addict
        Visit the Analytical Engine!

      •  Thanks, Congressman McDermott... (4.00)
        ...for all of your great work on Ways and Means:  1) to save Social Security; 2) to get core labor standards included in free trade agreements; 3) to expose Republican tax cuts as the giveaways to the super-rich that they are; and 4) to show up the Medicare "prescription drug benefit" as the giveaway to the pharmas that it is.  The court reporting firm that I work for does most of Ways and Means' work, and I've spent many a late evening watching you and Charlie Rangel take on Bill Thomas and before him Bill Archer.

        In one way, I'm sorry you're a more ethical psychiatrist than Bill Frist is a surgeon.  I'd love to see you diagnose George W. Bush with a messiah complex, paranoid schizophrenia, or something of the sort based on watching videotapes of him.

        Piss off Frank Luntz: don't use Republican issue frames like "Social Security crisis."

        by DC Pol Sci on Fri May 27, 2005 at 09:16:37 PM PDT

        [ Parent ]

      •  Another happy constituent here. (none)
        Congressman McDermott,

        Thank you for being part of dKos.  I'm still a very fresh face around here, but as one of your constituents, this site just became even more valuable to me.  

        Blogs like dkos are a great way for you to interact one-on-one at your convenience.  When elected representatives take the time to post, it opens up a fresh line of communication between the representative and the represented.  Enjoy!

        Public Interest Law: Twice the schooling - half the pay.

        by chassit on Fri May 27, 2005 at 10:12:39 PM PDT

        [ Parent ]

      •  Applause (none)
        to you, Congressman McDermott for fighting for the right to free speech. As that is one of our rights that has made America strong! It is what has drawn millions of immigrants to our shores throughout our nation's history.
        When you fight this battle, you fight it for all Americans.....thank you from the bottom of my heart.

        We choose hope over despair; possibilities over problems, optimism over cynicism.-John Edwards

        by wishingwell on Sat May 28, 2005 at 09:05:12 AM PDT

        [ Parent ]

    •  McDermott is exactly the kind of opposition (4.00)
      party we need in these times when the cowboys and crooks are dominating the show. Thank you SeattleLiberal for reminding us about his situation. Naturally because McDermott is outspoken and willing to call the Rethuglicans on their (lack of) ethics, he has attracted their particular ire.

      A show of support from the blogosphere would help embolden every Dem out there. You can donate here at McDermott's site. McDermott is much bigger than just Seattle -- he's one of the few who really gets it and who is fearless in speaking out for everything we hold dear.

      Reality - Humanity - Sustainability

      by Em on Fri May 27, 2005 at 06:59:09 PM PDT

      [ Parent ]

  •  dagnabbit!!!! i can't keep up with our reps (4.00)
    in congress who blog here!  i am only on sporatically at the moment and late at nite usually.

    is there a list of those who blog and their logon names - i would like to pull up their diaries -

    HELP!!! we need somebody - HELP not just ANYBODY!


    list please?  

    tank u berry mulch!

    War is Peace. Freedom is Slavery. Ignorance is Strength. Long Live Oceana!

    by edrie on Fri May 27, 2005 at 05:34:37 PM PDT

  •  Jim McDermott was very nice (4.00)
    He liked my pie - I just gave him some money

    Trying to do my part to make the whole world a "reality-based community".

    by cmk on Fri May 27, 2005 at 06:05:07 PM PDT

  •  Is there anything we can do (none)
    beyond money?

    Thanks info,

    Reframing the news and people's views of our world:, free subscriptions.

    by AllisonInSeattle on Fri May 27, 2005 at 06:12:42 PM PDT

    •  Spread the word (4.00)
      SeattleLiberal is right that McDermott (as well as Conyers and a couple others) receive relentless attacks from our political opponents. Let fellow Seattlites know. 'Cause everyone is hugely supportive of Jim McDermott -- they know he is awesome and kicks ass -- but they probably don't realize that this court case has dragged on for 8 years while he has defended our right to public-interested politically-charged truths out of his own pocket, and so he could use some support in the form of mojo that you can take to the bank... Maybe that's not the best answer if you're looking for something that's not about money. But I think people should know about the attacks and the long-drawn-out lawsuit.

      Reality - Humanity - Sustainability

      by Em on Fri May 27, 2005 at 07:41:27 PM PDT

      [ Parent ]

  •  What Laws Did McDermott (4.00)
    supposedly break when he gave the phone tape to the media?

    Pardon my ignorance.  I am pretty sure taping someone without knowlege in The District is a no no, but if he did not tape them himself it is not his problem... or is it?  

    Also - to framing - explaining how one can be "accidentally" taped would probably help his case rather than make it sound kind of fishy.  Frankly, when dealing with the Republican mafia I would not be the least bit surprized if they "accidentally" taped themselves and gave it to him since he proved he go to the media with such evidence...

    •  He should invoke the Novak defense (4.00)
      Hey, I didn't commit the crime; I'm just conveying the information.
    •  The couple that made the recording (none)
      were fined for the illegal recording.

      If it was a completely anonymous source, there may not be an issue for Congressman McDermott.

      I'm not a lawyer so I can't go into too much detail with any authority.

    •  Also, (4.00)
      the recording was made in Florida. The couple that recorded the conversation was following someone else hoping to catch them doing something wrong. It was just a matter of chance. They recognized Gingrich's voice, but it was  and started to record.

      The links at the top of the diary give a more in depth discussion. :

      Boehner, driving in Florida at the time, was talking on a cell phone when the Martins recorded the conversation.
    •  Short version: unlawful but not illegal (4.00)
      It's a civil case, not a criminal case, and the trial judge (on the amended complaint) held that McDermott acted improperly by disclosing information that his source had obtained illegally.

      A long lawyerly analysis in this pdf by Peter Karanjia, of Davis Wright Tremaine's NYC office. (Don't know if he is in amicus position in the case.)

      Quite a case, and a remarkable exercise in legal contortions to distinguish McDermott's situation from the Supreme Court finding in the parallel case Bartnicki v Vopper.

      First Amendment rights are important always and everywhere ... but most important when speech is used to expose wrongdoing by the high and mighty (as it was by McDermott in this case).

      'Republicans'? Y'mean Privatizing, Downsizing, Court-Packing, Red Ink Republicans?

      by RonK Seattle on Fri May 27, 2005 at 08:09:57 PM PDT

      [ Parent ]

      •  Acted Improperly? (4.00)
        It's a civil case, not a criminal case, and the trial judge (on the amended complaint) held that McDermott acted improperly by disclosing information that his source had obtained illegally.

        I understand the civil distinction.  Interesting though that he was found to have "acted improperly".   I think this civil suit trend is very troubling.  Repubs want to limit our ability to sue companies that are producing products that are literally killing us, but won't hesitate to sue a guy for telling the truth about them.

        I'd make this case the poster child for why we still need the right to sue.

        The ad would go something like this... "Republicans want to limit your right to justice if a company makes a car that is so badly constructed that your family is killed, but when they want to sue a congressman for telling us how crooked they are they'll make sure the courts are open for business!"  I could do better but I'm tired - you get the point...

  •  Rep. McDermott = American Patriot. (4.00)

    Thank you Congressman McDermott for standing up for us, for our country and Constitution, and for humanity.

    And, thank you SeattleLib for the update.  I will check out the website.

  •  McDermott nails it on the Rethugs' fearmongering (4.00)
    I would like to say that one thing I really, really appreciate that Congressman Jim McDermott has done is to speak the plain truth about fear. So much of the post 9/11 jitters we all personally felt, were fanned by opportunistic, propagandistic fearmongering, manipulated for political advantage by the Rethuglicans. It was McDermott -- whose background is as a U.S. Navy psychiatrist -- who really got the message out that the fearmongering was just that. That they wanted us to be afraid. That that was part of the Rethuglican program, to promote fear whereever possible.

    For this clear, debunking talk on fear and fearmongering I am personally thankful to Jim McDermott. It actually lowered my own blood pressure a few points and made me less afraid and more aware of the political reality. A couple of examples:

    Today, Republicans have elevated the concept of fear and loathing in politics to a new level - It's become sort of an art form for them, both on the campaign trail and in the Congress.

    ...And believe me, Republicans work very hard to promote fear. Remember when we were told about weapons of mass destruction . . . weapons that were, as it turns out, non- existent . . . but was used as a reason, a non-existent reason, to take our county into a war?

    A color-coded system of alerts was created by the new Department of Homeland Security . . . Orange alerts . . . Red alerts . . . Yellow alerts . . . a daily reminder of the risk of terrorist attacks and the risk to our safety and security.

    Remember the 33 pounds of "weapons grade uranium" that was reported in the media that 33 pounds turned out to be 3 ounces of non-radioactive metal.

    Remember the talk of "Smallpox" - another issue used to raise our anxiety levels.

    Fear is used to divide us, to make us act more jingoistically, to mistrust others, to disengage from our communities. As in the creepy Hermann Goering quote, you just make people afraid and they will do your bidding. McDermott explodes all that fearmongering crap and for this I thank him.  

    Reality - Humanity - Sustainability

    by Em on Fri May 27, 2005 at 08:07:41 PM PDT

    •  'Fear does work, yes. ...' (4.00)
      " ... You can make people do anything if they're afraid."

      That's either McDermott in Fahrenheit 9/11, or Yoda in The Empire Strikes Back.

      Consider the non-inverted syntax, and put your money on McDermott.

      'Republicans'? Y'mean Privatizing, Downsizing, Court-Packing, Red Ink Republicans?

      by RonK Seattle on Fri May 27, 2005 at 08:15:26 PM PDT

      [ Parent ]

  •  And of course the Fahrenheit 911 opening scene (4.00)
    featuring McDermott. See the F911 trailer to recall the pithy comment:

    You can make people do anything if they're afraid.

    Reality - Humanity - Sustainability

    by Em on Fri May 27, 2005 at 08:17:22 PM PDT

  •  We just donated to this great cause. (4.00)
    Thanks for your courage in this.   What the Republicans have done to this great country is an outrage.  What is being done to you is an outrage.  

    "I'm willing to say things that are not popular but ordinary people know are right." Howard Dean

    by floridagal on Fri May 27, 2005 at 08:39:25 PM PDT

  •  what i totally don't understand (4.00)
    is how Boehner can claim damages. How was he damaged? I mean aside from being show as an idiot to drive around conspiring on a cell phone for pity sake. He still has his job, he can't show that he lost friends, stature, influence. . . How was he damaged.  His friends now know he's corrupt but they knew that before.

    Of course, McDermott should have sent word to the Fla folks to release the tape to the press themselves. . . Oh well, next time...

  •  Jim, I'm truly grateful (4.00)
    You are what a legislator should be - taking the burden on your shoulders in hopes of saving our republic.  Our current administrations most disturbing trend is its desire to bury embarassing information, by force if necessary.  A wise and humble man would be grateful for feedback on what he's doing wrong, but our current administration responds with disciplinary action, lawsuits, firings, and even bullets.  It takes a man of courage like Jim McDermott to stand up to this.

    Thank you, Jim.
  •  Appaling!!! (none)
    Newsweek case was peanuts compared to this attack on the 1st ammendment and on whistleblowers all over!

    We should not use public money to support the further destruction of human life - GW Bush, 5/25/2005, WH East Room

    by lawnorder on Sat May 28, 2005 at 12:11:24 AM PDT

  •  Orin Hatch's staffer did worse! (4.00)
    When he invaded Dems computers and used material out of there for political advantage.

    Can someone please sue him ?!?!? Him and Hatch ?

    Maybe THAT will put an end to this witch hunt: Hunt them too!

    We should not use public money to support the further destruction of human life - GW Bush, 5/25/2005, WH East Room

    by lawnorder on Sat May 28, 2005 at 12:15:02 AM PDT

  •  Too late to blame an overzealous staffer? (none)
    I live in south Oregon, and am not a constituent, but I've admired rep. McDermott ever since his uphill fight for single payer health care in 1994.  

    Say hi to Pete the Faz from me. He's another good one on our team.

    "Hit a man with a fish, and he'll have a headache for a day. Teach him to hit himself with a fish, and he'll have headaches all his life!"--Karl Rove

    by AdmiralNaismith on Sat May 28, 2005 at 09:01:17 AM PDT

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