[House Report 109-732]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-732
_______________________________________________________________________

                                     

                                                 House Calendar No. 253


                            IN THE MATTER OF

                     REPRESENTATIVE JAMES McDERMOTT

                               __________

                              R E P O R T

                                 of the

                       COMMITTEE ON STANDARDS OF

                            OFFICIAL CONDUCT




 December 19, 2006.--Referred to the House Calendar and ordered to be 
                                printed


               COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT

DOC HASTINGS, Washington,            HOWARD L. BERMAN, California,
  Chairman                             Ranking Minority Member
JUDY BIGGERT, Illinois               STEPHANIE TUBBS JONES, Ohio
LAMAR SMITH, Texas                   GENE GREEN, Texas
TOM COLE, Oklahoma                   LUCILLE ROYBAL-ALLARD, California
MELISSA HART, Pennsylvania           MICHAEL F. DOYLE, Pennsylvania
           William V. O'Reilly, Chief Counsel/Staff Director
               Ed Cassidy, Chief of Staff to the Chairman
     Bari Schwartz, Special Counsel to the Ranking Minority Member

                        Carol E. Dixon, Counsel
                   Kenneth E. Kellner, Senior Counsel
                         C. Morgan Kim, Counsel
                        Susan L. Olson, Counsel
                   John Sassaman, Jr., Senior Counsel
                        Stan P. Simpson, Counsel
                     Pete Van Hartesveldt, Counsel
                    Hilary B. Smith, Staff Assistant
                Peter L. Johnson, Systems Administrator
                 Joanne White, Administrative Assistant

                       INVESTIGATIVE SUBCOMMITTEE

JUDY BIGGERT, Illinois               LUCILLE ROYBAL-ALLARD, California
PHIL ENGLISH, Pennsylvania           ROBERT C. SCOTT, Virginia
     Kenneth E. Kellner, Counsel to the Investigative Subcommittee
       Stan P. Simpson, Counsel to the Investigative Subcommittee
                         LETTER OF TRANSMITTAL

                          House of Representatives,
                Committee on Standards of Official Conduct,
                                 Washington, DC, December 19, 2006.
Hon. Karen L. Haas,
Clerk, House of Representatives,
Washington, DC.
    Dear Ms. Haas: On December 8, 2006, the Committee on 
Standards of Official Conduct voted to adopt the attached 
Report of the Investigative Subcommittee, ``In the Matter of 
Representative James McDermott,'' dated December 6, 2006, as 
the Report of the full Committee in this matter. Pursuant to 
Rule 21(a) of the Rules of the Committee on Standards of 
Official Conduct, and Clauses 3(a)(2) and (b) of Rule 11 of the 
House of Representatives, and by direction of the Committee on 
Standards of Official Conduct, we herewith transmit the 
attached Report to the House of Representatives.
            Sincerely,
                                   Doc Hastings,
                                           Chairman.
                                   Howard L. Berman,
                                           Ranking Minority Member.


                            C O N T E N T S

                              ----------                              
                                                                   Page
 I. Introduction......................................................1
II. Summary of Events and Factual Findings............................2
        A. Committee Proceedings Involving Former Representative 
          Newt Gingrich..........................................     2
        B. Conduct of Representative James McDermott.............     5
        C. Representative Boehner's Lawsuit Against 
          Representative McDermott...............................    10
        D. Representative Hobson's Complaint and the Jurisdiction 
          of the Investigative Subcommittee......................    12
        E. Applicable Confidentiality Rules During the 104th 
          Congress...............................................    13
III.Conclusions and Recommendations..................................15

Exhibits.........................................................    18


109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-732

======================================================================



 
               COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT
                            IN THE MATTER OF
                     REPRESENTATIVE JAMES MCDERMOTT

                                _______
                                

                            December 6, 2006

                                _______
                                

    Mrs. Biggert, from the Investigative Subcommittee submitted the 
                               following

                              R E P O R T

          [To the Committee on Standards of Official Conduct]

                            I. INTRODUCTION

    On November 16, 2004, Representative David L. Hobson filed 
a complaint alleging that Representative James McDermott 
violated certain laws, rules and standards of conduct in 
disclosing to the news media the contents of an intercepted 
telephone conversation in January 1997. The intercepted 
telephone conversation related to proceedings of the Committee 
on Standards of Official Conduct (the ``Committee'') regarding 
Representative Newt Gingrich, who was a Member of the House at 
that time. Until mid-January 1997, Representative McDermott 
served as Ranking Minority Member of the House Select Committee 
on Ethics, which had been created at the beginning of the 105th 
Congress for the sole purpose of completing action on the 
aforementioned matter involving Representative Gingrich.
    On December 28, 2004, the Chairman and Ranking Minority 
Member of the Committee jointly determined to establish an 
Investigative Subcommittee and to forward portions of 
Representative Hobson's complaint to that body. The 
Investigative Subcommittee was charged with conducting an 
inquiry on allegations that Representative McDermott's conduct 
violated the House Code of Official Conduct (clause 1 of which 
provides that Members and staff shall conduct themselves ``at 
all times in a manner which shall reflect creditably on the 
House of Representatives''), provisions of the Code of Ethics 
for Government Service, the Committee member non-disclosure 
agreement, or the Committee confidentiality rules.
    On March 20, 2006, the Committee voted to carry over this 
matter regarding Representative McDermott to the 109th 
Congress.
    A summary and explanation of the Investigative 
Subcommittee's findings are set forth in this Report.

               II. SUMMARY OF EVENTS AND FACTUAL FINDINGS


 A. Committee Proceedings Involving Former Representative Newt Gingrich

    The relevant Committee proceedings involving former 
Representative Newt Gingrich are summarized in the Report of 
the Select Committee on Ethics to the House entitled ``In the 
Matter of Representative Newt Gingrich,'' and an additional 
Committee publication entitled ``Sanction Hearing and Related 
Materials.'' \1\ As summarized in those materials, the matter 
involving Representative Gingrich was initiated during the 
103rd Congress following a complaint filed with the Committee 
on September 7, 1994 by Ben Jones. Mr. Jones was Representative 
Gingrich's opponent in his 1994 campaign for re-election, and 
his complaint was filed in accordance with Committee and House 
rules at that time that permitted formal complaints to be filed 
by persons other than Members of the House.\2\ The focus of Mr. 
Jones' complaint was a course taught by Representative Gingrich 
called ``Renewing American Civilization.'' \3\ The complaint 
alleged that Representative Gingrich used his congressional 
staff to work on the course, and that Representative Gingrich 
created the course under the sponsorship of Section 501(c)(3) 
organizations ``to meet certain political, not educational, 
objectives,'' and by doing so caused a violation of Section 
501(c)(3) of the Internal Revenue Code to occur.\4\
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    \1\ See In the Matter of Representative Newt Gingrich, H. Rep. 105-
1, 105th Cong., 1st Sess. (Jan. 17, 1997) (``Rep. Gingrich Report''); 
Sanction and Related Materials, Hearing Before the Select Committee on 
Ethics, 105th Cong. 1st Sess. (Comm. Print Jan. 17, 1997) (``Rep. 
Gingrich Hearing Materials'').
    \2\ Rep. Gingrich Report at 1; Committee on Standards of Official 
Conduct (``Committee'') Rule 14 (103rd Congress). Mr. Jones was a 
former Member of the House at the time he filed his complaint. Mr. 
Jones served in the House during the 101st and 102nd Congresses (1989 
to 1993).
    \3\ Rep. Gingrich Report at 1.
    \4\ Id.
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    The matter was not resolved by the Committee before the end 
of the 103rd Congress, and on January 26, 1995, Representative 
David Bonior filed an amended version of the complaint 
previously filed by Mr. Jones.\5\ On December 6, 1995, the 
Committee voted to initiate a ``Preliminary Inquiry'' into the 
allegations of misuse of tax-exempt organizations and appointed 
an investigative subcommittee (hereafter ``Gingrich 
Subcommittee'') to conduct the inquiry.\6\ The Chairman of the 
Gingrich Subcommittee was Representative Porter J. Goss, and 
Representative Benjamin L. Cardin served as the Investigative 
Subcommittee's Ranking Minority Member. The other two Members 
of the subcommittee were Representative Steven Schiff and 
Representative Nancy Pelosi. The Committee also determined to 
appoint a Special Counsel to assist the Gingrich Subcommittee.
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    \5\ Id.
    \6\ Id. at 1-2.
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    On September 26, 1996, the Gingrich Subcommittee announced 
that the investigation of Representative Gingrich was being 
expanded into several additional areas.\7\ The subcommittee 
concluded its investigative work on December 12, 1996.\8\ On 
December 15, 1996, the Gingrich Subcommittee and Representative 
Gingrich, through their respective counsel, initiated 
discussions towards resolving the matter without proceeding to 
a formal adjudicatory hearing in accordance with the rules of 
the Committee at that time.\9\ A negotiated resolution was 
reached by the parties, and on December 21, 1996, the Gingrich 
Subcommittee adopted a Statement of Alleged Violation 
describing conduct by Representative Gingrich which the 
subcommittee concluded violated then-House Rule 43, Clause 1 of 
the Rules of the House of Representatives (current House Rule 
23, Clause 1).\10\ On that same date, Representative Gingrich 
executed an Answer admitting to the Statement of Alleged 
Violation.\11\ The Statement of Alleged Violation adopted by 
the Gingrich Subcommittee and Representative Gingrich's Answer 
were released publicly by the subcommittee on December 21, 
1996.\12\
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    \7\ The specific areas of expansion are set forth in Rep. Gingrich 
Report at 2.
    \8\ Rep. Gingrich Report at 3.
    \9\ Id. at 94.
    \10\ Rep. Gingrich Hearing Materials at 92.
    \11\ Id. at 91.
    \12\ Id. at 90.
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    As part of the negotiated resolution of the matter, the 
subcommittee and Representative Gingrich agreed that ``no 
public comment should be made about this matter while it is 
still pending. This includes having surrogates sent out to 
comment on the matter and attempt to mischaracterize it.'' \13\ 
Further, beyond the press statements agreed to by the parties, 
``neither Mr. Gingrich nor any Member of the subcommittee may 
make any further public comment.'' \14\ The agreement on this 
topic pertained to ``press statements,'' and Members of the 
Gingrich Subcommittee and Representative Gingrich were free to 
engage in ``private conversations with Members of Congress 
about these matters.'' \15\
---------------------------------------------------------------------------
    \13\ Rep. Gingrich Report at 95.
    \14\ Id. at 95.
    \15\ Id. at 95-96.
---------------------------------------------------------------------------
    Due to the timing of the Gingrich Subcommittee's actions 
regarding Representative Gingrich, that body and the Committee 
were not able to formally present the subcommittee's findings 
and recommendations to the House in accordance with Committee 
rules prior to the conclusion of the 104th Congress. At the 
start of the 105th Congress on January 7, 1997, the House 
established a Select Committee on Ethics, and appointed as 
Members of that Committee all of the Members who were on the 
standing Committee on Standards of Official Conduct at the 
expiration of the 104th Congress. The Select Committee on 
Ethics was given jurisdiction by the House ``only to resolve 
the Statement issued by the Investigative Subcommittee of the 
standing Committee on Standards of Official Conduct in the One 
Hundred Fourth Congress relating to the official conduct of 
Representative Gingrich of Georgia and otherwise report to the 
House on the activities of that investigative subcommittee.'' 
\16\ The House further provided in the Rules of the House of 
Representatives for the 105th Congress that in the exercise of 
its jurisdiction, the Select Committee on Ethics ``shall 
possess the same authority as, and shall conduct its 
proceedings under the same rules, terms, and conditions . . . 
as those applicable to the standing Committee on Standards of 
Official Conduct in the One Hundred Fourth Congress[.]'' \17\ 
The House Rules also provided that ``the select committee shall 
cease to exist upon final disposition by the House of a report 
designated by the select committee of its final report on the 
matter, or at the expiration of January 21, 1997, whichever is 
earlier.'' \18\
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    \16\ House Rule 10, Clause 4(e)(3) (105th Congress) (as adopted in 
H. Res. 5 on January 7, 1997).
    \17\ Id.; see also Rep. Gingrich Report at 2. The House could have 
reestablished the Committee on Standards of Official Conduct as a 
standing committee at the start of the 105th Congress. However, it was 
determined during that time period that before reestablishing the 
Committee as a standing committee, the House needed to ``reassess'' its 
``standards process,'' and to empanel a bipartisan task force ``to 
review the existing House standards process and recommend reforms of 
that process.'' Report of the Ethics Reform Task Force on H. Res. 168, 
105th Cong., 1st Sess. (Comm. Print June 17, 1997) at 1. In brief, 
interest had developed in the House in ``reexamining ways to better 
ensure that the standards process in the House functions in a manner 
that is nonpartisan, efficient and fair.'' Id. In substantial measure, 
the current Committee on Standards of Official Conduct functions in 
accordance with the rules of procedure adopted by the House following 
the report and recommendations of the aforementioned bipartisan task 
force.
    \18\ House Rule 10, Clause 4(e)(3) (105th Congress) (as adopted in 
H. Res. 5 on January 7, 1997).
---------------------------------------------------------------------------
    On January 17, 1997, the Select Committee on Ethics held a 
sanction hearing in the matter pursuant to then-Committee Rule 
20. Following the hearing, the Select Committee on Ethics 
issued its report to the House, which recommended that 
Representative Gingrich be reprimanded and ordered to reimburse 
the House for costs associated with the Committee's 
investigation. On January 21, 1997, the House adopted the 
report of the Select Committee on Ethics In the Matter of 
Representative Newt Gingrich.\19\ In a section of the report 
entitled ``Post-December 21, 1996 Activity,'' the report 
disclosed that ``[i]n the opinion of the Subcommittee Members 
and the Special Counsel, a number of the press accounts 
[following release of the Statement of Alleged Violation] 
indicated that Mr. Gingrich had violated the agreement 
concerning statements about the matter.'' Further, the report 
stated that
---------------------------------------------------------------------------
    \19\ See H. Res. 31, 105th Cong., 1st Sess. (Jan. 21, 1997).

    Mr. Gingrich's counsel was notified of the Subcommittee's 
concerns and the Subcommittee met to consider what action to 
take in light of this apparent violation. The Subcommittee 
determined that it would not nullify the agreement. While there 
was serious concern about whether Mr. Gingrich had complied 
with the agreement, the Subcommittee was of the opinion that 
the best interests of the House still lay in resolving the 
matter without a disciplinary hearing and with the recommended 
sanction that its Members had previously determined was 
appropriate. However, Mr. Gingrich's counsel was informed that 
the Subcommittee believed a violation of the agreement had 
occurred and retained the right to withdraw from the agreement 
with appropriate notice to Mr. Gingrich.\20\
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    \20\ Rep. Gingrich Report at 96.

    The report did not specify the conduct engaged in by 
Representative Gingrich that raised concerns with the Gingrich 
Subcommittee.

              B. Conduct of Representative James McDermott

    In the instant matter, the focus of the Investigative 
Subcommittee's inquiry involving Representative McDermott was 
on the disclosure by Representative McDermott to members of the 
news media of the contents of an illegally intercepted 
telephone conference. The conduct of Representative McDermott 
that is now under review occurred in January 1997 while he was 
the Ranking Minority Member of the House Select Committee on 
Ethics. As referenced below, in substantial measure, the 
factual conclusions made by the Investigative Subcommittee 
regarding Representative McDermott's conduct are based on 
admissions made by Representative McDermott during the course 
of ongoing federal court civil litigation with Representative 
John A. Boehner. Sources of the referenced admissions include 
transcribed sworn statements made during a civil deposition of 
Representative McDermott during the litigation.\21\ Key events 
in the civil litigation proceedings between Representative 
McDermott and Representative Boehner are described in a 
separate section in this Report.
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    \21\ Representative McDermott was deposed in the civil case on July 
24, 2002 and December 12, 2002.
---------------------------------------------------------------------------
    The Investigative Subcommittee also requested and obtained 
materials from the Department of Justice related to that 
agency's investigation of this matter, and additionally 
subpoenaed documents from Representative McDermott. By letter 
dated July 19, 2006, Representative McDermott was invited by 
the Investigative Subcommittee to present a statement to the 
Investigative Subcommittee in accordance with Committee Rule 
19(a)(3). Representative McDermott declined to make a statement 
in accordance with that rule.
    Representative McDermott has been a Member of the House 
representing the Seventh District of Washington since 1989. 
Representative McDermott was Ranking Minority Member of the 
Committee on Standards of Official Conduct during the 104th 
Congress.\22\ As such, he became Ranking Minority Member of the 
House Select Committee on Ethics on January 7, 1997, in 
accordance with House Rule 10, Clause 4(e)(3) (105th Congress) 
(as adopted in H. Res. 5 on January 7, 1997).
---------------------------------------------------------------------------
    \22\ Representative McDermott was Chairman of the Committee on 
Standards of Official Conduct during the 103rd Congress, and he also 
served as a Member of the Committee during the 102nd Congress.
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    On December 21, 1996, two individuals, John Martin and 
Alice Martin, while near Lake City in Columbia County, Florida, 
used a scanner to intentionally intercept a wire communication 
in the form of a cellular telephone call.\23\ The intercepted 
telephone call was a conference call whose participants 
included Representative Gingrich, Representative Boehner and 
others.\24\ The record indicates that Mr. and Mrs. Martin, 
while traveling, overheard a telephone conversation using a 
scanning device that was purchased at Radio Shack. They 
recognized some of the voices in the conversation. Mr. Martin, 
using a handheld tape recorder that was in his car, recorded 
the conversation.\25\
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    \23\ See Transcript of Sentencing Proceedings before the Honorable 
Harvey E. Schlesinger in United States v. Alice Martin and John Martin, 
(M.D. Fla. April 25, 1997) at 23. An investigation of the Martins' 
conduct was conducted by the Department of Justice, and, as reflected 
by the cited transcript of court proceedings, on April 25, 1997, John 
and Alice Martin pleaded guilty to violating 18 U.S.C. 
Sec. Sec. 2511(1)(a) and 2511(4)(b)(ii), provisions of law which 
prohibit the intentional interception of the radio portion of a 
cellular telephone call. John and Alice Martin were each sentenced to 
pay a fine of $500. Id. at 52. A press statement of the Department of 
Justice dated April 23, 1997 regarding the investigation of the Martins 
states that ``[b]ecause the interception involved the radio portion of 
a cellular telephone communication, and because there is no evidence 
that the interception was for a tortious or illegal purpose or for 
purposes of direct or indirect commercial advantage or private 
financial gain, the U.S. Code classifies [the Martins'] offense as an 
infraction. The maximum penalty is a $5,000 fine.'' See Exhibit 1.
    \24\ Id. at 23.
    \25\ Id. at 38-39.
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    According to a New York Times article by Adam Clymer 
published on January 10, 1997 (discussed in more detail below), 
the participants in the telephone call recorded by the Martins 
included Representative Boehner, Representative Gingrich, 
Representative Richard Armey, Ed Bethune (a former Member of 
the House then serving as Representative Gingrich's lawyer), Ed 
Gillespie (reported in the New York Times article as 
communications director of the Republican National Committee), 
Representative Bill Paxon, and Representative Tom DeLay.\26\ 
Representative Boehner participated in the conference call on a 
cellular phone inside his car while parked outside a restaurant 
in northern Florida.\27\ The subject of the telephone 
conference call, as far as can be gleaned from the New York 
Times article, was the content of statements that may be made 
publicly related to the inquiry of the Investigative 
Subcommittee involving Representative Gingrich.\28\
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    \26\ ``Gingrich Is Heard Urging Tactics in Ethics Case,'' N.Y. 
Times (Jan. 10, 1997) (Exhibit 2).
    \27\ Rep. Boehner Dep. at 9.
    \28\ See Exhibit 2. The Investigative Subcommittee does not have a 
copy of the tape at issue, nor a complete or verifiable transcript 
thereof. The last known location of the tape was the Department of 
Justice, which received it from Chairman Johnson of the House Select 
Committee on Ethics on or about January 13, 1997. See Exhibit 3.
---------------------------------------------------------------------------
    On January 8, 1997, Mr. and Mrs. Martin personally 
delivered a copy of a tape in an envelope to Representative 
McDermott in one of the rooms of the Committee on Standards of 
Official Conduct, which is located in Suite HT-2 in the United 
States Capitol Building.\29\
---------------------------------------------------------------------------
    \29\ Rep. McDermott Dep. at 157-58.
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    The record supports a finding that the tape the Martins 
delivered to Representative McDermott was accompanied by a 
letter to Representative McDermott. Representative McDermott 
testified in his deposition that he has no recollection of 
seeing a letter from the Martins at the time they delivered the 
tape to him, or whether the tape was accompanied by a 
letter.\30\ A copy of a letter from the Martins addressed to 
Representative McDermott was obtained by the Investigative 
Subcommittee from records filed in the United States District 
Court in connection with the Boehner v. McDermott civil 
litigation. The transcript of the deposition of Representative 
McDermott taken during the litigation indicates that 
Representative McDermott obtained a copy of the letter from the 
Department of Justice, and that Representative McDermott 
subsequently produced that copy of the letter to Representative 
Boehner during the discovery phase of the litigation.\31\
---------------------------------------------------------------------------
    \30\ Id. at 150, 153.
    \31\ Id. at 151.
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    The letter, dated January 8, 1997, and addressed to ``Jim 
McDermott, Ranking Member,'' contained the following text:

    Enclosed in the envelope you will find a tape of a 
conversation heard December 21, 1996 at about 9:45 a.m. The 
call was a conference call heard over a scanner. We felt the 
information included were [sic] of importance to the committee. 
We live in the 5th. [sic] Congressional District and attempted 
to give the tape to Congresswoman Karen Thurman. We were 
advised by her to turn the tape directly over to you. We also 
understand that we will be granted immunity.
    My husband and I work for Columbia County Schools in 
Columbia County Florida. We pray that committee [sic] will 
consider our sincerity in placing it in your hands.
    We will return to our home today.
    Thank you for your consideration.
    John and Alice Martin \32\
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    \32\ See Exhibit 4.
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    At his deposition, Representative McDermott described the 
circumstances of his receiving the tape from the Martins as 
follows:

    During a break of the Ethics Committee, I was standing in 
the anteroom by the door to the hallway and someone asked if I 
was Congressman McDermott and I said yes. And this couple came 
up to me and said they had, they wanted to give me something 
that they thought I would be interested in.
    And I said, who are you? And they said John and whatever 
his wife's name Martin is. And I said where are you from? And 
they, I have, I mean there were eight or nine people standing 
around there and I don't remember exactly whether they told me 
they were from Karen Thurman's district or--I don't remember 
exactly. But they told me they were in North Florida and then 
he gave me a card, and I said thank you, I'll listen to it.\33\
---------------------------------------------------------------------------
    \33\ Rep. McDermott Dep. at 157-158.
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    It couldn't have been more than 30 seconds. I mean, I was 
just trying to get rid of them. Take whatever they had, whoever 
they were, put it in my pocket and go on with my business. 
Because I had enough on my mind at that point.\34\
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    \34\ Id. at 176.
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    Representative McDermott also described his encounter with 
the Martins in a separate declaration he executed on December 
11, 2002 in connection with the Boehner v. McDermott 
litigation. Representative McDermott stated in that document 
that:

    On or about January 8, 1997, I was approached by a man and 
woman in the anteroom of the House Ethics Committee. They asked 
me whether I was Congressman McDermott. After I acknowledged 
who I was, the man and woman identified themselves as Mr. and 
Mrs. Martin and handed me an envelope. The Martins said that 
the envelope contained a tape recording that they thought would 
be of interest to me and asked me to listen to it. I said that 
I would.
    Until that encounter, neither I, nor my staff, nor anyone 
acting on my behalf had any knowledge of the Martins or their 
tape. I had no idea what the tape contained when the Martins 
handed it to me, because they never discussed its contents with 
me. I did not learn of the contents of the tape until I 
returned to my office later and listened to the tape. No one 
else was present when I listened to the tape.
    I have never had any communications with the Martins other 
than during that single encounter on or about January 8, 1997. 
I have never asked anyone to communicate with the Martins, 
directly or indirectly, at any time or for any reason. Neither 
I, nor my staff, nor anyone on my behalf, has ever talked about 
the subject of immunity with the Martins.\35\
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    \35\ Declaration of James A. McDermott dated December 11, 2002 
(filed in Boehner v. McDermott civil litigation as Exhibit F to Rep. 
McDermott's Opposition to Rep. Boehner's Motion for Summary Judgment).

    Representative McDermott estimated that he received the 
package containing the tape from the Martins at approximately 
5:00 p.m.\36\ He described the envelope as an ``8\1/2\ by 11 
envelope,'' and the tape as ``one of those little tiny tapes 
like you have in a hand-held recorder or a telephone answering 
machine.'' \37\ He also testified that he was present at the 
offices of the Committee to participate in a Committee meeting 
related to the Committee's consideration of the matter 
involving Representative Gingrich.\38\
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    \36\ Rep. McDermott Dep. at 160.
    \37\ Id. at 159.
    \38\ Id. at 160.
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    Representative McDermott returned to his personal office in 
the Rayburn House Office Building at approximately 7:00 p.m. 
and listened to the tape on a handheld tape recording device 
that he had in his office.\39\ Representative McDermott 
recognized some of the voices on the tape, including those of 
Representative Gingrich and Representative Richard Armey.\40\ 
Subsequent to listening to the tape, Representative McDermott 
contacted Jeanne Cummings of the Atlanta Journal-Constitution 
and left a voicemail for her.\41\ Representative McDermott also 
contacted Adam Clymer of the New York Times and invited him to 
Representative McDermott's office that evening. Mr. Clymer 
accepted Representative McDermott's invitation.\42\ During 
their meeting, Representative McDermott played the tape he 
received from the Martins for Mr. Clymer and he permitted Mr. 
Clymer to make a recording of the tape.\43\
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    \39\ Id. at 162, 163.
    \40\ Response of Rep. McDermott to Rep. Boehner's Statement of 
Undisputed Facts in Support of His Motion For Summary Judgment 
(hereafter ``Rep. McDermott Response to SUF'') at para. 18.
    \41\ Id. at para. 21.
    \42\ Rep. McDermott Dep. at 183-84.
    \43\ Id. at 186-187.
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    Ms. Cummings of the Atlanta Journal-Constitution returned 
Representative McDermott's telephone call the next morning and 
subsequently came to his office in the Rayburn House Office 
Building. Ms. Cummings listened to the tape, doing so in the 
bathroom in Representative McDermott's office.\44\
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    \44\ Id. at 92; Rep. McDermott Response to SUF at para.para. 28, 
29.
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    As noted above, on January 10, 1997, the New York Times 
published an article by Mr. Clymer about the tape and its 
contents, and the article included a reported transcript of at 
least part of the tape.\45\ The article references an anonymous 
Congressional source for the tape, but Representative McDermott 
subsequently acknowledged that he was the source for the 
newspaper.\46\ On the morning of January 10, 1997, after he 
``read the newspaper,'' Representative McDermott met, at 
Representative McDermott's request, with James Cole, the 
Special Counsel to the House Select Committee on Ethics. 
According to Representative McDermott, he ``realized, from the 
way [the newspaper article] was written and from the placement 
in the paper, that it was going to be an issue of public 
controversy and I thought I ought to talk to a lawyer. And, as 
I saw it, the perfect person was Jim Cole, if he would talk to 
me, because he knew the case, he knew everything. And I wanted 
to talk to him and see what he would say. So I contacted him.'' 
\47\ The record does not indicate that Mr. Cole actually 
rendered any legal advice to Representative McDermott when they 
met.\48\
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    \45\ See Exhibit 2.
    \46\ Rep. McDermott Dep. at 220-221.
    \47\ Id. at 307.
    \48\ See id. at 331.
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    On January 13, 1997, the Martins held a press conference 
stating that they had given a copy of the taped intercepted 
telephone conversation to Representative McDermott.\49\ On that 
same day, Representative McDermott transmitted his copy of the 
tape in its original envelope to Chairman Nancy Johnson of the 
House Select Committee on Ethics.\50\ In response to this 
action, the Chief Counsel of the House Select Committee on 
Ethics transmitted a letter to Representative McDermott, dated 
January 13, 1997, that stated:
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    \49\ 2 Floridians Talk of How They Taped The Speaker, N.Y. Times 
(Jan. 14, 1997 (Exhibit 5). See also Rep. McDermott Response to SUF at 
para. 40. According to the New York Times article, the Martins stated 
that they were responsible for intercepting Rep. Boehner's 
conversation, and they identified Rep. McDermott as the person to whom 
they delivered the tape:
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        The middle-aged couple--he is a maintenance man at a 
      school and she is a teacher's aide--are active in both the 
      National Education Association and the Democratic Party in 
      their home county of Columbia in northern Florida, so they 
      have a keen interest in politics. Mr. Martin said they had 
      used a small tape recorder to record the conversation, 
      planning to play back the voice of the famous politician 
      someday for their grandson, who is expected to be born in 
      three weeks. But as they listened, they changed their mind. 
      They took the tape to their Representative, Karen L. 
      Thurman, a Democrat, and later, on her advice, took the 
      tape to the senior Democrat on the House ethics committee, 
      Representative Jim McDermott. . . . Mrs. Martin said she 
      and her husband had hand-delivered the tape to Mr. 
      McDermott. ``He took the envelope in his hand and said he 
      would listen to it,'' she said.
---------------------------------------------------------------------------
    \50\ Rep. McDermott Dep. at 213.
---------------------------------------------------------------------------
    This is to notify you that the material you sent to the 
Committee at 4:33 p.m. this afternoon was not accepted. By 
direction of the Chair and after consultation with the Chief 
Counsel of the Criminal Division of the Department of Justice, 
the contents of the envelope including the audio cassette tape 
and the cover letter were hand delivered to the Department of 
Justice early this evening.\51\
---------------------------------------------------------------------------
    \51\ See Exhibit 3.
---------------------------------------------------------------------------
    Representative McDermott resigned from the House Select 
Committee on Ethics on January 13, 1997. Representative 
McDermott's answer to Representative Boehner's amended civil 
complaint states that ``Congressman McDermott concluded that 
the political controversy over the Tape might impede the House 
Ethics Committee from completing its work if he continued to 
serve on it.'' \52\ Representative McDermott further testified 
in his deposition that ``I recognized that this was going to be 
a distraction and I wanted to get it out of the way.'' \53\ 
Representative McDermott also testified that he does not 
remember if at the time he determined to resign from the House 
Select Committee on Ethics if he was aware that the Martins had 
publicly disclosed their giving of the tape to him.\54\
---------------------------------------------------------------------------
    \52\ Rep. McDermott's Answer to Rep. Boehner's Amended Complaint at 
para. 26.
    \53\ Rep. McDermott Dep. at 137.
    \54\ Id. at 133.
---------------------------------------------------------------------------
    On or about January 14, 1997, Representative McDermott 
transmitted a letter to the Chairman of the House Select 
Committee on Ethics to communicate his objection to her 
forwarding of the copy of the taped intercepted telephone 
conversation to the Department of Justice. Representative 
McDermott's letter expressed his ``considerable chagrin'' at 
this course of action, and also his view that the Chairman's 
action violated House Rule X, cl. 4(e)(1)(C) of the Rules of 
the House for the 105th Congress.\55\
---------------------------------------------------------------------------
    \55\ See Exhibit 6.
---------------------------------------------------------------------------
    Representative McDermott testified during his deposition 
that based on the tape he received from the Martins, he 
understood that Representative Gingrich reached an agreement 
with the Gingrich Subcommittee that Representative Gingrich 
``was entitled to make a public statement, but [Representative 
Gingrich] apparently had agreed not to orchestrate any kind of 
response to undermine the statement or to undermine the work of 
the committee.'' \56\ In Representative McDermott's view, based 
on the recorded telephone call, Representative Gingrich was 
``participating in orchestration and violating the agreement.'' 
\57\ In his testimony, Representative McDermott indicated his 
view that the ``public had a right to know'' about the 
information contained on the tape.\58\ He stated: ``I came into 
politics during the Vietnam era. . . . And I knew about the 
Pentagon Papers. And there are some things the people are 
entitled to know, one of which is what the person who's third 
in line to be President of the United States, how he deals with 
issues.'' \59\ He also indicated in his court filings that he 
believed that ``the First Amendment entitled him to share the 
tape with the press as truthful information of public concern 
that he had lawfully obtained from another,'' \60\ and that 
``if a member of the House Ethics Committee received 
information from sources outside the Committee and outside the 
context of Committee proceedings, then he would have been free 
to disclose it under the House Ethics Committee Rules in effect 
in January, 1997.'' \61\
---------------------------------------------------------------------------
    \56\ Rep. McDermott Dep. at 33.
    \57\ Id. at 45; Rep. McDermott Response to SUF at para. 76.
    \58\ Rep. McDermott Dep. at 61.
    \59\ Id.; see also id. at 271-72 (``My disclosure was done because 
I felt the people had a right to know about the behavior of a public 
official.'').
    \60\ Rep. McDermott Response to SUF at para. 78.
    \61\ Id. at para. 79.
---------------------------------------------------------------------------

  C. Representative Boehner's Lawsuit Against Representative McDermott

    As referenced in the foregoing discussion, Representative 
McDermott's conduct in disclosing to the media the copy of the 
tape furnished to him by John and Alice Martin became the 
subject of a lawsuit filed in the United States District Court 
for the District of Columbia by Representative John A. Boehner. 
Representative Boehner, the plaintiff, initiated the lawsuit in 
a complaint he filed on March 9, 1998. Representative Boehner's 
complaint alleged that Representative McDermott, the defendant, 
knowingly disclosed an unlawfully intercepted communication in 
violation of the federal wiretapping statute, 18 U.S.C. 
Sec. 2511(1)(c) and a Florida wiretapping statute, Fla. Stat. 
Sec. 934.01(1)(c). 18 U.S.C. Sec. 2511 provides, in pertinent 
part, that:

    (1) Except as otherwise specifically provided in this 
chapter any person who--

           *       *       *       *       *       *       *

    (c) intentionally discloses, or endeavors to disclose, to 
any other person the contents of any wire, oral, or electronic 
communication, knowing or having reason to know that the 
information was obtained through the interception of a wire, 
oral, or electronic communication in violation of this 
subsection;

shall be punished as provided in subsection (4) or shall be 
subject to suit as provided in subsection (5).

    Section 2520 permits ``any person whose wire, oral, or 
electronic communication is intercepted, disclosed, or 
intentionally used in violation of'' 18 U.S.C. Sec. 2511 to 
initiate a civil suit to recover equitable and declaratory 
relief and monetary damages. The cited Florida statute contains 
language substantially similar to that of 18 U.S.C. 
Sec. 2511(1)(c).
    The ongoing litigation is now proceeding on its second 
round of appellate level review, having once already been 
addressed by United States Supreme Court and remanded back to 
the lower courts. The presiding United States District Judge in 
this matter is Chief Judge Thomas F. Hogan. In the early stages 
of the litigation, Judge Hogan granted a motion to dismiss the 
litigation filed by Representative McDermott, holding that the 
First Amendment protected disclosure of lawfully obtained 
information.\62\ The United States Court of Appeals for the 
District of Columbia Circuit reversed Judge Hogan's decision 
and held that the federal wiretapping statute was not 
unconstitutional as applied to Representative McDermott.\63\ 
The Supreme Court granted certiorari, vacated the judgment of 
the Court of Appeals, and remanded the case in light of the 
Supreme Court's decision in Bartnicki v. Vopper, 532 U.S. 514, 
121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001).\64\ On remand from 
the Supreme Court, the Court of Appeals remanded the matter 
back to the United States District Court, concluding that it 
``would benefit from having the district court pass upon the 
arguments that have taken on new-found importance after 
Bartnicki.'' \65\
---------------------------------------------------------------------------
    \62\ See Boehner v. McDermott, No. 98-594, 1998 WL 436897, at *7 
(D.D.C. July 28, 1998), rev'd, 191 F.3d 463 (D.C. Cir. 1999).
    \63\ Boehner, 191 F.3d at 478.
    \64\ See McDermott v. Boehner, 532 U.S. 1050, 121 S. Ct. 2190, 149 
L. Ed. 2d 1022 (2001).
    \65\ Boehner v. McDermott, 22 Fed. Appx. 16, 2001 WL 1699420 (D.C. 
Cir. 2001).
---------------------------------------------------------------------------
    After the matter returned to the district court in 2001, 
the parties in the litigation engaged in discovery and filed 
cross-motions for summary judgment. On August 20, 2004, Judge 
Hogan held that Representative McDermott violated 18 U.S.C. 
Sec. 2511(1)(c) when he disclosed the tape furnished to him by 
the Martins to members of the news media. Boehner v. McDermott, 
332 F. Supp. 2d 149, 158 (D.D.C. 2004). In a subsequent order 
on October 22, 2004, Judge Hogan ordered that Representative 
McDermott pay Representative Boehner $10,000 in statutory 
damages, $50,000 in punitive damages, and reasonable attorneys 
fees and costs. In the same order, Judge Hogan held the matter 
of the amount of attorneys fees in abeyance pending resolution 
of appeals in the litigation.
    On March 28, 2006, a 2-1 decision by a three judge panel of 
the United States Court of Appeals for the District of Columbia 
upheld Judge Hogan's ruling in favor of Representative Boehner. 
The essential disagreement between the majority and the 
dissenting judge was whether the First Amendment of the 
Constitution protected Representative McDermott from 
prosecution for his disclosure of the taped telephone 
conversation he received from the Martins. See Boehner v. 
McDermott, 441 F.3d 1010, 1017 (D.C. Cir. 2006).
    On June 23, 2006, Representative McDermott's petition for a 
rehearing en banc was granted by the United States Court of 
Appeals for the District of Columbia Circuit. The Court vacated 
the judgment of the three judge panel that was filed on March 
28, 2006.\66\ The case was reheard by the court sitting en banc 
on October 31, 2006, and no decision has yet been rendered.
---------------------------------------------------------------------------
    \66\ See Boehner v. McDermott, No. 04-7203 (D.C. Cir. Order filed 
June 23, 2006).
---------------------------------------------------------------------------

   D. Representative Hobson's Complaint and the Jurisdiction of the 
                       Investigative Subcommittee

    As noted previously, on December 28, 2004, the Chairman and 
Ranking Minority Member of the Committee determined to forward 
portions of Representative Hobson's complaint to the 
Investigative Subcommittee. In a public statement on that same 
date, the Chairman and Ranking Minority Member of the Committee 
announced that ``the subcommittee will conduct an inquiry on 
allegations that Representative McDermott's conduct violated 
the House Code of Official Conduct (clause 1 of which provides 
that Members and staff shall conduct themselves ``at all times 
in a manner which shall reflect creditably on the House of 
Representatives''), provisions of the Code of Ethics for 
Government Service, the committee member non-disclosure 
agreement, or the Committee confidentiality rules.'' \67\ As 
noted below, the Investigative Subcommittee interpreted this 
announcement as limiting its inquiry to violations of House and 
Committee rules, and not requiring the Investigative 
Subcommittee to reach an independent judgment as to whether 
Representative McDermott violated a federal statute, i.e., 18 
U.S.C. Sec. 2511, a question pending before the United States 
Court of Appeals for the District of Columbia Circuit. In other 
words, the Investigative Subcommittee's charge was to determine 
whether Representative McDermott's conduct, which might or 
might not support a finding of a violation of federal law, was 
a violation of House and Committee rules applicable to him as a 
Member of the House and as Ranking Minority Member of the House 
Select Committee on Ethics. The Investigative Subcommittee also 
addressed specifically the question of the applicability of 
House Rule 23, Clause 10 to Representative McDermott, because 
that was one of the matters in Representative Hobson's 
complaint that was referred to the Subcommittee.
---------------------------------------------------------------------------
    \67\ See Exhibit 7 (Statement of Chairman Joel Hefley and Ranking 
Minority Member Alan B. Mollohan dated December 28, 2004).
---------------------------------------------------------------------------

     E. Applicable Confidentiality Rules During the 104th Congress

    During the 104th Congress (1995-1996) and during the 
temporary existence in January 1997 of the House Select 
Committee in the 105th Congress, two rules of the Committee on 
Standards of Official Conduct--Rule 9 and Rule 10(b)--addressed 
the topic of confidentiality by Members and staff of the 
Committee.\68\
---------------------------------------------------------------------------
    \68\ As explained earlier in this Report, the relevant rules in 
effect during the 104th Congress are implicated in this matter even 
though the conduct under review occurred during the 105th Congress. See 
House Rule 10, Clause 4(e)(3) (105th Congress) (as adopted in H. Res. 5 
on January 7, 1997) (The Select Committee on Ethics ``shall possess the 
same authority as, and shall conduct its proceedings under the same 
rules, terms, and conditions . . . as those applicable to the standing 
Committee on Standards of Official Conduct in the One Hundred Fourth 
Congress[.]''). We further note that Committee Rules 9 and 10(b) for 
the 104th Congress appear to implement House Rule X, Clause 4(e)(2)(F) 
(104th Congress), which provided with regard to the Committee that 
``[n]o information or testimony received, or the contents of a 
complaint or the fact of its filing, shall be publicly disclosed by any 
committee or staff member unless specifically authorized in each 
instance by a vote of the full committee.''
---------------------------------------------------------------------------
    Rule 9 of the Rules of the Committee on Standards of 
Official Conduct provided:

             Communications by Committee Members and Staff

    Committee members and staff shall not disclose any evidence 
relating to an investigation to any person or organization 
outside the Committee unless authorized by the Committee, nor 
shall any evidence in the possession of an investigative 
subcommittee be disclosed to Committee members who are not 
members of the subcommittee prior to the filing of a Statement 
of Alleged Violation with the Committee.

    Rule 10(b) of the Rules of the Committee on Standards of 
Official Conduct provided:

                           Committee Records

    Members and staff of the Committee shall not disclose to 
any person or organization outside the Committee, unless 
authorized by the Committee, any information regarding the 
Committee's or a subcommittee's investigative, adjudicatory or 
other proceedings, including, but not limited to: (i) the fact 
of or nature of any complaints; (ii) executive session 
proceedings; (iii) information pertaining to or copies of any 
Committee or subcommittee report, study, or other document 
which purports to express the views, findings, conclusions, or 
recommendations of the Committee or subcommittee in connection 
with any of its activities or proceedings; or (iv) any other 
information or allegation respecting the conduct of a Member, 
officer, or employee.

    Neither Committee nor House rules during the 104th Congress 
mandated the execution of a formal confidentiality oath by 
Members of the Committee. However, during the 104th Congress, 
the Committee determined to implement a policy under which its 
Members would sign a ``Nondisclosure Agreement'' containing the 
following text:

    The purpose of this Nondisclosure Agreement is to ensure 
the confidentiality of all information received or processed by 
the Committee on Standards of Official Conduct (the Committee).
    I do solemnly swear (or affirm) that I will not disclose 
any information received in the course of my service with the 
Committee in accordance with Committee Rule 10, except when 
authorized by the Committee or the House of Representatives.

    Committee records do not contain a copy of any such 
agreement executed by Representative McDermott, although there 
are copies of the agreement signed by all other Members of the 
Committee during the 104th Congress. The record does not 
indicate that the House Select Committee on Ethics, established 
in January 1997, implemented a requirement that Members of that 
body sign nondisclosure agreements, although arguably formal 
action implementing such a policy was not necessary due to the 
instructions of the House that the House Select Committee on 
Ethics ``shall possess the same authority as, and shall conduct 
its proceedings under the same rules, terms, and conditions . . 
. as those applicable to the standing Committee on Standards of 
Official Conduct in the One Hundred Fourth Congress[.]'' \69\
---------------------------------------------------------------------------
    \69\ See House Rule 10, Clause 4(e)(3) (105th Congress) (as adopted 
in H. Res. 5 on January 7, 1997).
---------------------------------------------------------------------------
    For the purpose of completeness, the Investigative 
Subcommittee notes that it was not until the adoption of H. 
Res. 168 (September 18, 1997) during 105th Congress (1996-
1997)--implementing the recommendations of the bipartisan House 
Ethics Reform Task Force--that a confidentiality oath 
requirement for Members of the Committee was added to House 
rules.
    Specifically, the 1997 Report of the Ethics Reform Task 
Force stated that ``[e]nsuring the confidentiality of Standards 
Committee deliberations and matters pending before the 
Committee is essential to protect the rights of individuals 
accused of misconduct, preserve the integrity of the 
investigative process, and cultivate collegiality among 
Committee members.'' \70\ Towards this end, it was recommended 
that House rules require that Committee Members, ``pool'' 
Members, and Committee staff execute a confidentiality oath 
before they have access to information that is confidential 
under Committee rules.\71\
---------------------------------------------------------------------------
    \70\ See Report of the Ethics Reform Task Force on H. Res. 168, 
105th Cong., 1st Sess., at 10-11 (June 17, 1997).
    \71\ Id.
---------------------------------------------------------------------------
    The text of the proposed oath was as follows: ``I do 
solemnly swear (or affirm) that I will not disclose, to any 
person or entity outside the Committee on Standards of Official 
Conduct, any information received in the course of my service 
with the committee, except as authorized by the Committee or in 
accordance with its rules.'' In accordance with the 
recommendations of the Task Force, breaches of confidentiality 
would be investigated by the Committee and a proven violation 
of the confidentiality oath by a Member or employee of the 
Committee would be a violation of House rules.\72\ A formal 
oath requirement was added to the Committee's rules on 
September 30, 1997, and is currently codified as Committee Rule 
7(a).
---------------------------------------------------------------------------
    \72\ Id. The floor debate on H. Res. 168 also addressed the 
importance of improving the confidentiality of the Committee's work as 
means to ``maintain the integrity of the process.'' 143 Cong. Rec. 
H7546 (daily ed. Sept. 18, 1997) (statement of Rep. Cardin).
---------------------------------------------------------------------------

                  III. CONCLUSIONS AND RECOMMENDATIONS


  A. Federal Statute Prohibiting Disclosure of Illegally Intercepted 
            Electronic Communications (18 U.S.C. Sec. 2511)

    The Investigative Subcommittee reached no conclusion as to 
whether Representative McDermott violated 18 U.S.C. Sec. 2511 
in connection with his disclosure to the news media of the 
contents of a taped intercepted telephone conversation 
furnished to him by the Martins, as it was not the mandate of 
the Investigative Subcommittee to resolve this question. 
Rather, the focus of the Investigative Subcommittee's inquiry 
was whether, by the same conduct which may or may not establish 
a violation of law in the federal court proceedings between 
Representative McDermott and Representative Boehner, 
Representative McDermott also violated ``the House Code of 
Official Conduct (Clause 1 of which provides that Members and 
staff shall conduct themselves ``at all times in a manner which 
shall reflect creditably on the House of Representatives''), 
provisions of the Code of Ethics for Government Service, the 
committee member non-disclosure agreement, or the Committee 
confidentiality rules.'' \73\ In any event, given the important 
and novel issues of First Amendment law involved in the Boehner 
v. McDermott litigation--as evidenced by the appellate and 
Supreme Court interest in the case--the Investigative 
Subcommittee concluded that the question of law should be left 
to the judicial branch.
---------------------------------------------------------------------------
    \73\ See Exhibit 7.
---------------------------------------------------------------------------

   B. Refraining from Legislative Activity (House Rule 23, Clause 10)

    The Investigative Subcommittee concluded that there was no 
violation by Representative McDermott of House Rule 23, Clause 
10. The findings of Judge Hogan on August 20, 2004 in the 
Boehner v. McDermott civil litigation do not implicate House 
Rule 23, Clause 10, which only applies where a Member of the 
House is ``convicted by a court of record for the commission of 
a crime for which a sentence of two or more years' imprisonment 
may be imposed''; i.e., upon a plea of guilty by a Member in a 
criminal proceeding, or upon a court finding of guilty by judge 
or jury in a criminal proceeding. Regardless of the outcome of 
Boehner v. McDermott after all the appeal options are 
exhausted, that case is a civil matter between two private 
parties and does not implicate House Rule 23, Clause 10. The 
fact that the same statute may also establish a basis for 
criminal prosecution--using different procedures and a far more 
stringent burden of proof--does not alter this conclusion. Many 
statutes, including the Federal Election Campaign Act, contain 
options for both criminal and civil enforcement; \74\ however, 
there was never any intention by the House to apply House Rule 
23, clause 10 and thereby restrain ``the maximum freedom of 
Members to represent their constituencies'' in any 
circumstances other than those involving conviction in a 
criminal proceeding.\75\ Regarding a proposal that the House 
amend the Code of Official Conduct to include the prohibition 
now encompassed in House Rule 23, Clause 10, the Committee 
reported to the House that it ``recognizes a very 
distinguishable link in the chain of due process--that is, the 
point at which the defendant no longer has claim to the 
presumption of innocence. This point is reached in a criminal 
prosecution upon a plea of guilty or upon conviction by a jury 
or by a judge (or judges) if jury trial is waived. It is to 
this condition, and only to this condition, that the proposed 
resolution is directed.'' \76\
---------------------------------------------------------------------------
    \74\ See 2 U.S.C. Sec. 437g.
    \75\ House Committee on Standards of Official Conduct, Policy of 
the House of Representatives With Respect to Actions by Members 
Convicted of Certain Crimes, H. Rep. 94-76, 94th Cong., 1st Sess. 
(1975) at 4.
    \76\ Id. at 2 (emphasis added).
---------------------------------------------------------------------------

C. Committee Rules Related to Confidentiality of Committee Proceedings 
  and to the Obligations of a Ranking Minority Member of the Committee

    The Investigative Subcommittee reviewed the applicable 
Committee rules related to the confidentiality of Committee 
proceedings and concluded that Representative McDermott's 
conduct, i.e., his disclosure to the news media of the contents 
of the tape furnished to him by the Martins, was inconsistent 
with the spirit of the applicable rules and represented a 
failure on his part to meet his obligations as Ranking Minority 
Member of the House Select Committee on Ethics.
    As noted, Rule 9 of the Rules of the Committee on Standards 
of Official Conduct for the 104th Congress prohibited 
disclosure by a Member of ``any evidence relating to an 
investigation to any person or organization outside the 
Committee unless authorized by the Committee,'' and further 
prohibited ``evidence in the possession of an investigative 
subcommittee [from] be[ing] disclosed to Committee members who 
are not members of the subcommittee prior to the filing of a 
Statement of Alleged Violation with the Committee. In addition, 
Rule 10(b) of the Rules of the Committee on Standards of 
Official Conduct for the 104th Congress prohibited disclosure 
by a Member, ``unless authorized by the Committee'' of ``any 
information regarding the Committee's or a subcommittee's 
investigative, adjudicatory or other proceedings, including, 
but not limited to: (i) the fact of or nature of any 
complaints; (ii) executive session proceedings; (iii) 
information pertaining to or copies of any Committee or 
subcommittee report, study, or other document which purports to 
express the views, findings, conclusions, or recommendations of 
the Committee or subcommittee in connection with any of its 
activities or proceedings; or (iv) any other information or 
allegation respecting the conduct of a Member, officer, or 
employee.''
    The aforementioned rules support the House ethics processes 
by protecting the integrity and confidentiality of Committee 
and Investigative Subcommittee proceedings and deliberations, 
and protecting the rights of individuals accused of misconduct 
and subject to ethics proceedings.
    Indeed, the purpose of the Committee's rules is emphasized 
in the foreword to the Rules of the Committee on Standards of 
Official Conduct for the 104th Congress, adopted by the 
Committee on February 9, 1995, which states:

    The Committee on Standards of Official Conduct is unique in 
the House of Representatives. Consistent with the duty to carry 
out its advisory and enforcement responsibilities in an 
impartial manner, the Committee is the only standing committee 
of the House of Representatives the membership of which is 
divided evenly by party. These rules are intended to provide a 
fair procedural framework for the conduct of the Committee's 
activities and to help insure that the Committee serves well 
the people of the United States, the House of Representatives, 
and the Members, officers, and employees of the House of 
Representatives.\77\
---------------------------------------------------------------------------
    \77\ The identical foreword is contained in the Rules of the 
Committee for the current Congress.

    The foreword reflects the unique charter of the Committee 
to conduct its work in a non-partisan manner, and the threat 
posed to the integrity of the House of even the appearance of 
unfairness to Members under investigation or of bias or 
impartiality by Members of the Committee in fulfilling their 
responsibilities.
    By his conduct in January 1997, Representative McDermott 
failed to meet this standard. Representative McDermott's 
secretive disclosures to the news media as to the alleged 
conduct of Representative Gingrich risked undermining the 
ethics process regarding that Member. Representative 
McDermott's actions were not consistent with the spirit of the 
Committee's rules.\78\ In reaching this conclusion, the 
Investigative Subcommittee did not give weight to 
Representative McDermott's stated excuse for his conduct: the 
public's entitlement to be informed. This is not a 
justification for potentially undermining the House ethics 
process. In the normal course, Members entrusted to serve on 
the Committee have their first obligation to the integrity of 
the House ethics process, which itself supports public 
confidence in the institution of the House. A better course of 
action would have been for Representative McDermott to entrust 
the Committee at the outset with the information to which he 
alone on the Committee had access, and for that body, 
collectively, to make determinations, consistent with its 
rules, as it deemed appropriate.
---------------------------------------------------------------------------
    \78\ See House Rule 23, clause 2, providing that ``[a] Member . . . 
shall adhere to the spirit and the letter of the Rules of the House and 
to the rules of duly constituted committees thereof.'' House Rule 23, 
Clause 2, ``has been interpreted to mean that Members, officers, and 
employees may not do indirectly what they would be barred from doing 
directly, House Ethics Manual at 15 (italics original), and that ``a 
narrow technical reading of a House rule should not overcome its 
`spirit' and the intent of the House in adopting that and other rules 
of conduct.'' Id. (citing Final Report of House Select Committee on 
Ethics, H. Rep. No. 95-1837, 95th Cong., 2d Sess. (1979) app. at 61).
---------------------------------------------------------------------------
    The Investigative Subcommittee decided against further 
proceedings in this matter. The Investigative Subcommittee 
additionally recommends that the Report of the Investigative 
Subcommittee be released to the public with no further 
statement by the Committee beyond announcing release of this 
Report.


