In a 5-4 en banc decision, the District of Columbia Circuit Court of Appeals ruled in favor of the plaintiff in Boehner v. McDermott. The full Associated Press article was written by Matthew Daly, and the text of the decision can be found here.
If the ruling stands -- I can almost guarantee that it will be appealed to the Supreme Court -- Congressman Jim McDermott will have to pay something on the order of $700,000 in fines and legal costs to his "colleague" John Boehner. This is the latest chapter in a very long legal battle arising from a taped cellphone conversation between Boehner and Newt Gingrich, way back in 1997.
A strongly-worded dissent by Judge David Sentelle ("We do not believe the First Amendment permits this interdiction of public information") makes up more than half of the text of the decision.
I have no legal training whatsoever, so the arguments and citations in the Court's decision are dizzyingly difficult for me to follow. Still, in a case where the New York Times, the Wall Street Journal, and Newscorp all filed briefs supporting McDermott on the basis of the First Amendment, this latest legal setback is very troubling.
McDermott didn't tape the cellphone conversation, during which it was clear that Gingrich and Boehner were conspiring to do precisely what they had just promised the House Ethics Committee they wouldn't do -- orchestrate a media campaign to defuse the effects of the severe penalties imposed on Newt for his egregious misuse of 501(c)(3) money to fund overtly partisan "educational" videos. What McDermott did do was get out the news about the Gingrich-Boehner perfidy ... by leaking a transcript of the phone call to the New York Times and the Atlanta Journal-Constitution.
The case has continued through the federal courts for many years. When an Appeals Court panel ruled against McDermott by 2-1, he sought (and was granted) a hearing before the entire Appeals Court en banc. That's the decision rendered today.
It's intriguing that the Appeals Court's strongest supporter of Jim McDermott and the First Amendment is Judge Sentelle. He was the subject of a February 2007 dKos diary (David B. Sentelle, rightwing hack judge, denies habeas corpus). As mentioned in Randian's diary, Sentelle's Wikipedia entry isn't one that would ordinarily cause one to think very highly of him. Among his, um, attributes:
- appointed to the DC Circuit by Ronald Reagan
- replaced Scalia on the DC Appeals Court in 1987
- voted to overturn sentences of Ollie North and John Poindexter
- responsible for appointing Kenneth Starr as independent council for Clinton investigations
- Federalist Society member
If Sentelle feels so strongly about this case, one wonders what Mr. Justice Scalia will say when the case reaches SCOTUS.