After nearly 10 years, it's hard for Congressman Jim McDermott (D-Seattle) to find much humor in the Republican-orchestrated federal lawsuit against him. The best he can do is joke that a large number of his constituents weren't even out of high school when it all began. This week the suit, which revolves around a politically damaging tape of Republican strategizing that McDermott leaked to the New York Times in 1997, will enter what the congressman describes as "the eighth inning of a very long game."

Lawyers for McDermott, who have followed the case up and down the federal court system since 1997, will file an appeal on April 27 with the U.S. Court of Appeals in Washington, D.C.—the last stop before the U.S. Supreme Court. It's a complicated case that McDermott, facing mounting legal bills and dwindling public interest in this long-running legal travail, is trying to reframe as a First Amendment showdown (with considerable success).

In March, a three-judge panel of the Appeals Court ruled against McDermott, saying he had acted illegally in leaking the audio tape, which was recorded in December of 1996 and featured then–House Speaker Newt Gingrich plotting with other top Republicans about how to deal with an ethics charge against Gingrich. The recording was made by a couple in Florida who randomly intercepted the conference call between Gingrich and the Republican leaders, among them Congressman John Boehner (R-Ohio), the current House Majority Leader, who that day happened to be in Florida and was participating in the conference call via cell phone. The couple, both Democrats, realized what they were hearing, made a recording, and gave it to McDermott, then the highest-ranking Democrat on the House Ethics Committee. McDermott promptly leaked the tape to journalists for two major newspapers, and the New York Times ran its story first, on January 10, 1997.

There has never been much question about whether the Florida couple acted illegally; they were prosecuted by the U.S. Justice Department for violating the federal law against intercepting private electronic communications, pled guilty, and received a fine of $500. But McDermott's role is murkier. Representative Boehner, through a personal lawsuit against McDermott, is trying to have McDermott found guilty of essentially being an accomplice to the couple's original crime. But in an argument supported by 19 major media organizations (including Dow Jones & Company, Inc., publisher of the Wall Street Journal, and the Washington Post Company), McDermott's lawyers contend that he had a First Amendment right to give the tape to reporters, even if the tape had been originally obtained through illegal means.

In a split decision, the three-judge panel of the Appeals Court rejected that argument, likening McDermott to a peddler of stolen diamonds, and seeming to suggest that not only McDermott, but anyone who transmitted the illegally obtained information (including, presumably, the New York Times), was also legally culpable. That could mean that newspapers, which often print information of public importance that comes to them from sources who may have obtained the information illegally (e.g., the Pentagon Papers, published by the New York Times in 1971), will in the future be prevented from doing so. This possibility prompted a strong dissent from conservative Justice David Sentelle, who wrote:

"Just as Representative McDermott knew that the information had been unlawfully intercepted, so did the newspapers to whom he passed the information." So, too, he noted, did the newspaper's readers. By the logic of his colleagues' ruling, Sentelle continued, "No one in the United States could communicate on this topic because of the defect in the chain of title. I do not believe the First Amendment permits this interdiction of public information." The Washington Post, in an editorial earlier this month, agreed, writing, "This ruling can't be right."

By going to the full nine-member Court of Appeals, McDermott is hoping that Sentelle's reasoning can sway some of the court's other members. If not, he'll likely head to the U.S. Supreme Court. And if he loses there, he'll be on the hook for Representative Boehner's attorney fees—around $600,000 at this point. But in a meeting with The Stranger recently, McDermott stressed that his concern is less about his financial future than about freedom of speech. Republicans want to make it more difficult for the media to print secret information that the public should know about, he said.

"If they succeed in that," McDermott continued, pointing at two journalists, "you're dead."

eli@thestranger.com