Rep. Jim McDermott (left) leaked a recording of House Minority Leader John A. Boehner and others. | John Shinkle/POLITICO Boehner's wiretapping stance draws ire

When a federal judge ordered Rep. Jim McDermott to pay House Minority Leader John A. Boehner and his attorneys more than $1 million in damages and legal fees for leaking an illegally taped phone call to the media, Boehner said he pursued the case because “no one — including members of Congress — is above the law.”

Why, then, is the Ohio Republican trying to squash similar lawsuits against telecommunications companies who cooperated with the government in warrantless electronic surveillance, ask the attorneys behind the class action suits.


“Mr. Boehner is trying to kick millions of Americans out of court in a wiretapping case while collecting more than $1 million in his own wiretapping case. It’s the height of hypocrisy and seems to indicate that members of Congress are entitled to their day in court but the average American is not,” said Kevin Bankston, a senior staff attorney at the consumer rights nonprofit the Electronic Frontier Foundation.

The criticism comes amid continuing negotiations among House and Senate leaders in both parties as they seek common ground with the White House on updating the Foreign Intelligence Surveillance Act.

Boehner’s efforts put him in the position of arguing that telecom companies are above the law in violating their customers’ privacy rights, say those lobbying against letting the companies off the hook.

Boehner spokesman Michael Steel said the congressman supports retroactive immunity for telecom companies because they “shouldn’t face lawsuits for helping our country in the wake of the Sept. 11 attacks.”

The concerns of those opposed to immunity, Steel said, are “outweighed by the compelling national security interests that we’re talking about here.”

McDermott, a Democrat from Washington state, leaked an illegally recorded phone conversation for political gain, Steel said, while the telecom firms are being sued for helping the government protect Americans in the war against terrorism.

“This is like comparing the Watergate plumbers with our men and women in the armed forces fighting in Iraq and Afghanistan,” Steel said.

But Michelle Richardson of the American Civil Liberties Union said it doesn’t matter why the telecom companies cooperated in the government surveillance.

“The only thing that matters is whether they broke the law and will they have to answer for that,” she said.

In the case against McDermott, Boehner’s attorneys argued in a court filing that “private litigation to enforce the federal wiretapping act serves governmental interests of the highest order.”

Boehner’s suit stemmed from McDermott’s leak of a 1996 phone conversation in which Boehner and House Republican leaders discussed how to spin an ethics investigation involving then-Speaker Newt Gingrich (R-Ga.). Earlier this year, McDermott was ordered to pay about $1.1 million to Boehner and his attorneys for violating Boehner’s privacy.

In the debate before Congress over telecom immunity, Boehner has attacked Democrats for pandering to “typical trial lawyers trying to find a way to get into the pockets” of telecom companies. And Steel argued that immunity opponents are outside the mainstream, noting that the Senate overwhelming approved retroactive immunity months ago.

If huge awards are a concern, lawmakers could set reasonable caps on damages instead of granting the companies immunity from court action, Bankston said.

He argues that the EFF and the ACLU, which are coordinating the suits, aren’t looking to get rich but, rather, want to learn whether the companies broke the law. The groups are seeking penalties against the telecom companies to deter future illegal behavior — an argument Boehner should be familiar with.

“Punitive damages are not imposed to give awards to plaintiffs; they are imposed to punish and deter illegal conduct and to exact retribution on behalf of society for the violation of its laws,” Boehner’s attorneys, seeking damages and legal fees, argued in a court brief in the McDermott case.

The judge awarded Boehner $60,000 in damages and his attorneys more than $1 million in fees and court costs. Steel said the award was so high because McDermott pressed on with the case after Boehner offered to settle if McDermott admitted guilt, apologized and made a charitable donation.

Bankston said he found it insulting that Boehner would attack the attorneys representing millions of Americans as money-grubbers while he and his attorneys were “lining their own pockets.”