U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

59–006 

" ! HOUSE OF REPRESENTATIVES 109TH CONGRESS

2d Session 

REPORT

2006

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 


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(II) 

COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT 

DOC HASTINGS, Washington, 

Chairman 

JUDY BIGGERT, Illinois 

LAMAR SMITH, Texas 

TOM COLE, Oklahoma 

MELISSA HART, Pennsylvania 

HOWARD L. BERMAN, California, 

Ranking Minority Member 

STEPHANIE TUBBS JONES, Ohio 

GENE GREEN, Texas 

LUCILLE ROYBAL-ALLARD, California 

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 

PHIL ENGLISH, Pennsylvania 

LUCILLE ROYBAL-ALLARD, California 

ROBERT C. SCOTT, Virginia 

KENNETH E. KELLNER, Counsel to the Investigative Subcommittee 

STAN P. SIMPSON, Counsel to the Investigative Subcommittee 


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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. 


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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


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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 


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1See 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. 

5 Id. 

6 Id. at 1–2. 

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

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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7The 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. 13 Rep. Gingrich Report at 95. 14 Id. at 95. 15 Id. at 95–96. 

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

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

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 subVerDate Aug 31 2005 01:54 Dec 28, 2006 Jkt 059006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR732.XXX HR732

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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). 19See H. Res. 31, 105th Cong., 1st Sess. (Jan. 21, 1997). 20 Rep. Gingrich Report at 96. 

committee.’’ 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

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 

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

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


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21 Representative McDermott was deposed in the civil case on July 24, 2002 and December 

12, 2002. 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. 23See 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. §§ 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. 

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. 

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). 

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 


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24 Id. at 23. 25 Id. at 38–39. 26 ‘‘Gingrich Is Heard Urging Tactics in Ethics Case,’’ N.Y. Times (Jan. 10, 1997) (Exhibit 2). 27 Rep. Boehner Dep. at 9. 28See 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. 29 Rep. McDermott Dep. at 157–58. 30 Id. at 150, 153. 31 Id. at 151. 

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

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

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

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

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 


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32See Exhibit 4. 33 Rep. McDermott Dep. at 157–158. 34 Id. at 176. 

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

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

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

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 


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35Declaration 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). 36 Rep. McDermott Dep. at 160. 37 Id. at 159. 38 Id. at 160. 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 ¶ 18. 41 Id. at ¶ 21. 42 Rep. McDermott Dep. at 183–84. 43 Id. at 186–187. 44 Id. at 92; Rep. McDermott Response to SUF at ¶¶ 28, 29. 45See Exhibit 2. 46 Rep. McDermott Dep. at 220–221. 

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

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 ‘‘81⁄2 by 11 envelope,’’ and 

the tape as ‘‘one of those little tiny tapes like you have in a handheld 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

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

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

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 


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47 Id. at 307. 48See id. at 331. 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 ¶ 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: 

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. 51See Exhibit 3. 52 Rep. McDermott’s Answer to Rep. Boehner’s Amended Complaint at ¶ 26. 53 Rep. McDermott Dep. at 137. 54 Id. at 133. 

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

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: 

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

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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55See Exhibit 6. 56 Rep. McDermott Dep. at 33. 57 Id. at 45; Rep. McDermott Response to SUF at ¶ 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 ¶ 78. 61 Id. at ¶ 79. 

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

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

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. § 2511(1)(c) and a Florida wiretapping statute, Fla. Stat. § 934.01(1)(c). 18 U.S.C. § 2511 provides, 

in pertinent part, that: 


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62See 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. 64See 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). 

(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. § 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. § 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

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. § 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. 


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66See Boehner v. McDermott, No. 04–7203 (D.C. Cir. Order filed June 23, 2006). 67See Exhibit 7 (Statement of Chairman Joel Hefley and Ranking Minority Member Alan B. 

Mollohan dated December 28, 2004). 

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. 

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. 

§ 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. 


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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.’’

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

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 procVerDate Aug 31 2005 01:54 Dec 28, 2006 Jkt 059006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6969 E:\HR\OC\HR732.XXX HR732

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69See House Rule 10, Clause 4(e)(3) (105th Congress) (as adopted in H. Res. 5 on January 

7, 1997). 70See Report of the Ethics Reform Task Force on H. Res. 168, 105th Cong., 1st Sess., at 10– 11 (June 17, 1997). 71 Id. 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). 

essed 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

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

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 


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73See Exhibit 7. 74See 2 U.S.C. § 437g. 

September 30, 1997, and is currently codified as Committee Rule 

7(a). 

III. CONCLUSIONS AND RECOMMENDATIONS 

A. FEDERAL STATUTE PROHIBITING DISCLOSURE OF ILLEGALLY

INTERCEPTED ELECTRONIC COMMUNICATIONS (18 U.S.C. § 2511) 

The Investigative Subcommittee reached no conclusion as to 

whether Representative McDermott violated 18 U.S.C. § 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. 

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 


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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). 

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

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 


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77The identical foreword is contained in the Rules of the Committee for the current Congress. 78See 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). 

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

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. 

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. 


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