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Rep. McDermott Appeals His First Amendment Case to the U.S. Supreme Court Petition for Writ of Certiorari Filed Today
September 28, 2007
For Immediate Release

“It is hard to overstate the D.C. Circuit majority’s affront to the separation of powers.”

Rep. Jim McDermott (D-WA) filed a petition with the U.S. Supreme Court today, asking the nation’s highest court to accept his case for review, because of decisions made by the U.S. Circuit Court of Appeals for the District of Columbia Circuit in his First Amendment case (Boehner v. McDermott). 

The lower court was sharply divided in the decisions it rendered recently after hearing the case en banc (9 judges).  By a 5-4 majority the court affirmed First Amendment protections the U.S. Supreme Court upheld in a landmark case, Bartnicki v. Vopper; but then, the same lower court voted 5-4 against Rep. McDermott in the case, citing internal U.S. House rules.

Quoting from the petition filed today: “The sharply divided en banc decision below thus flouts the authority not only of this Court, by evading Bartnicki, but also of Congress, by adjudicating a violation of an internal House rule.”

Called a Petition for Writ of Certiorari, the document filed today presents two compelling questions as justification for the U.S. Supreme Court to hear the case, one having to do with the protection of free speech guaranteed by the First Amendment and the other having to do with the constitutional separation of powers between the legislative and judicial branches of government. 

• Whether the D.C. Circuit flouted the U.S. Supreme Court’s decision in Bartnicki v. Vopper by applying the federal wiretapping statute to punish a disclosure of truthful information on a matter of public concern by someone not involved in unlawful wiretapping.

Arguing for U.S. Supreme Court review, the Petition says: “This Court held in Bartnicki that the federal wiretapping statute violates the First Amendment as applied to punish a disclosure of truthful information on a matter of public concern by someone not involved in unlawful wiretapping-even if the person knew or had reason to know that the information had been unlawfully intercepted by someone else….That holding should have been the beginning and the end of this case.”

• Whether the D.C. Circuit violated the separation of powers by punishing a Member of Congress under the federal wiretapping statute based on an alleged violation of an internal rule of the U.S. House of Representatives.

Quoting from the Cert Petition: “In particular, by concluding that Rep. McDermott violated a nondisclosure duty under the House Ethics Committee Rules, and attaching adverse collateral consequences to that conclusion, the D.C. Circuit violated the fundamental separation of powers that underlies our entire constitutional structure.  It has long been established that Congress’ power to make and enforce its own rules is ‘absolute and beyond the challenge of any other body or tribunal.’”

The petition notes that the House Ethics Committee specifically did not conclude that Rep. McDermott violated a House rule, but instead referenced a vaguely worded violation of the spirit of a House rule.

“By barreling past the point where the Ethics Committee itself refused to go, however, the en banc majority effectively overturned the Committee’s careful political compromise-not only awarding victory where the Committee itself declined to do so, but compromising its own independence by appearing to choose sides in an internal Legislative dispute.

“These are precisely the dangers that led the Framers to include the Rulemaking Clause in the Constitution.  It is hard to overstate the D.C. Circuit majority’s affront to the separation of powers.”

The history of the case spans ten years.  It began when a Florida couple who Rep. McDermott had never met handed him an envelope which contained a tape recording of a conversation then Speaker Newt Gingrich was having with Republican political allies in the House.  Gingrich had called them together to strategize about how to spin in the media the outcome of a House Ethics Committee investigation against him for violations of House rules over a financially lucrative deal.  As part of the settlement, Gingrich had agreed not to publicly campaign directly or through surrogates to diminish the findings against him. 

When McDermott heard the tape, and understood the implications of what had been uncovered, he provided copies to The New York Times and Atlanta Journal Constitution newspapers, both of which produced significant and on-going news stories; ultimately, Gingrich resigned as Speaker and left the House of Representatives.

There is no specific timeframe in which the U.S. Supreme Court must decide whether to accept this case for review.