04/04/2006 11:34 am ET | Updated May 25, 2011

McDermott Can't Win Against Boehner

... unless we help support him

As my readers know, I have been following the civil court case brought by our new Majority Leader John Boehner against Congressman Jim McDermott. For the past eight years, Boehner has been seeking damages from McDermott for violating his right of privacy because McDermott handed the press an audio recording of a phone call between Newt Gingrich and Boehner - who had joined the conference call on his cell phone. McDermott claims he was exercising his first amendment rights. Boehner wants damages for violating his privacy.

Last Friday in an interview, McDermott said his "eight-year dispute with House Majority Leader John Boehner over an intercepted phone call is not personal, but involves the crucial right of voters to know what their leaders are doing."

It may not be personal for McDermott, but it is for Boehner. The GOP wanted to punish McDermott for his role in exposing Gingrich. While others were also on the call, Boehner was the one on the cell phone, allowing it to be intercepted. Thus, he was recruited to file the suit.

If McDermott wins the civil case, he doesn't get his legal costs paid by Boehner. But if Boehner wins, he does! Boehner would get "all or part" of his legal fees and costs paid for by McDermott as part of winning the case. Yet McDermott is also incurring legal costs defending himself against this suit.

McDermott lost the civil case on appeal. He faces a fine and, according to Judge Hogan's ruling, which was upheld by the Circuit Court, must pay "a reasonable attorney's fee and other litigation costs reasonably incurred" to Boehner.

It is unfortunate that § 2520 of the U.S. Code only provides legal fees to the injured person not to the defendant.

Many people in this country find fault with a judicial system that appears to assume the plaintiff filing suit is the one wronged and thus the only one who can get reimbursed for legal costs. Such a system encourages "frivolous" or "harassment" law suits. See Walter Olsen's lengthy discussion about this point, which says in part:

As other countries recognize, the arguments in support of the indemnity principle are overwhelming. They include basic fairness, compensation of the victimized opponent, deterrence of tactical or poorly founded claims and legal maneuvers, and the provision of incentives for accepting reasonable settlements.

It is as if McDermott can't win. He follows his principles, and gets sued. If he wins the suit, on the next appeal, he will be exonerated, but still be out thousands of dollars he needed to pay in his own legal fees.

At first I thought that Boehner should drop the case because it has gotten out of his control. I couldn't imagine that he wanted to be responsible for causing a legal precedent that restricts the first amendment and freedom of the press, especially now that he is the Majority Leader. McDermott has said repeatedly he would be willing to resolve this out of court - not only to protect the first amendment but also to "improve the climate in Congress."

But the latest court decision, unless it is reversed by another appeal, would still stand, meaning the precedent in restricting the press and our first amendment is set.

And that is the issue.

McDermott isn't about to walk away from a case that for him, from the beginning, was about protecting these rights - even if it means he could save thousands of dollars in costs. He became a Congressman to do his job - which includes protecting our first amendment rights. This is why people need to step up and help him out.

We need to band together to take the financial stress on McDermott off the table. He should not be asked to shoulder this burden alone. McDermott's supporters and those of us who care deeply about our first amendment and right of free press can do what the supporters of Congressman Boehner have done - help him pay his legal expenses.

My estimate is that McDermott will have to spend another $250,000 on top of the $440,000 his campaign fund has already spent to move this first amendment case up the court ladder. To raise that money, all he needs is 10,000 of us to give him $25 each. Be one of these people go to McDermott's Legal Defense site and help frustrate the GOP's attempt to punish McDermott financially. Make a donation.

Do it now; you will feel good about it and be working toward protecting our constitutional rights.
Written in collaboration with Jennifer Hicks