[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
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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\
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\13\ Rep. Gingrich Report at 95.
\14\ Id. at 95.
\15\ Id. at 95-96.
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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).
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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
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\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.
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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).
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\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.
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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\
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\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\
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\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\
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\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.
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\50\ Rep. McDermott Dep. at 213.
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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\
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\51\ See Exhibit 3.
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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\
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\52\ Rep. McDermott's Answer to Rep. Boehner's Amended Complaint at
para. 26.
\53\ Rep. McDermott Dep. at 137.
\54\ Id. at 133.
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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\
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\55\ See Exhibit 6.
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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\
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\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.
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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\
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\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).
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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).
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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\
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\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.''
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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).
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\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).
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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.
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\73\ See Exhibit 7.
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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\
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\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).
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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\
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\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.
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\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).
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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.