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Mother Jones’ Source May Be in a Mother Lode of Trouble

Whoever secretly placed a recording device at a meeting of Senate Republican leader Mitch McConnell with campaign strategists could be in serious legal trouble.

by
Hans A. von Spakovsky

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April 10, 2013 - 3:16 pm
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Left-wing magazine Mother Jones made news this week with a report based on a secret recording of a Feb. 2 meeting of Senate Republican leader Mitch McConnell with campaign strategists.  Federal and state law prohibits publication of information acquired through secret recording, but a 2001 Supreme Court ruling gives publishers like Mother Jones a get-out-of-jail-free card.

But whoever taped the private conversation can’t wiggle off the hook so easily.  Whoever bugged the meeting room or secretly placed a recording device will be in serious legal trouble — unless he or she was one of the strategists.

Both state and federal laws apply to the secret recording of oral communications. Title III of The Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §2511) makes it a federal crime to intentionally intercept “any wire, oral, or electronic communication.” Intercept is defined as using “any electronic, mechanical, or other device” to record anyone’s words, if the speaker has a justified “expectation that such communication is not subject to interception.”

Whoever recorded the private strategy session appears to have run afoul of this law. Sen. McConnell and his campaign advisors certainly had a reasonable expectation of privacy in their meeting at McConnell’s campaign headquarters in Kentucky. And given that Mother Jones has a recording, there is no doubt that a recording device intercepted the conversation. Whoever made the recoding is facing the very real prospect of fines and up to five years in prison.

The same federal statute also makes it illegal for anyone to intentionally use “the contents of any wire, oral, or electronic communication” if they knew or had reason to know that the “information was obtained” through an interception that violates federal law. But in Bartnicki v. Vopper, a 2001 case that arose when a radio talk show host aired an unlawfully recorded cell phone call, the Supreme Court held that this provision violated the First Amendment. The court’s reasoning: If a publisher lawfully obtains information from a source who acquired the information unlawfully, the source’s illegal conduct is not sufficient to remove the publisher’s First Amendment right to disclose information about matters of public concern.

The federal law stipulates that it is not a violation if a “party to the communication” made the recording. So the key question in any criminal investigation will be whether one of the aides in the strategy session voluntarily made the recording or if it was made by someone not in the room.

Comments are closed.

Top Rated Comments   
Oh, now that's just dumb. It's not supposition that there *is* a recording. Given the existence of the recording, it's not supposition that someone *made* the recording. The surreptitious recording is a crime under Federal and Kentucky law. Hans then finishes with "News reports indicate that the FBI is investigating and that the U.S. Attorney’s Office in Louisville has also been notified. But we won’t know if the applicable federal and state laws were, in fact, violated, until we know who made the recording."
1 year ago
1 year ago Link To Comment
Eric Holder's DOJ is going to get right on this.

Right after they confess to running guns to drug cartels, not prosecuting civil rights violations against whites, and slow running ballots to our men and women in service.

The leftist media and this administration...but I repeat myself...are not going to go after each other. Ever.
1 year ago
1 year ago Link To Comment
The entire Watergate affair started when the burglars were caught trying to wiretap the Dem Party headquarters.

Liberals painted that out as the start of some American fascism.

Until they got the opportunity to pull the same stunt, as they have here.
1 year ago
1 year ago Link To Comment
All Comments   (25)
All Comments   (25)
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I'm sure this case will be promptly pursued right after the completion of the prosecutions in Fast & Furious.
1 year ago
1 year ago Link To Comment
I am locked in the the 'butt dial' theory - some aide hit the wrong button on his not-so-smart phone and left a weird message on the wrong answering machine.

Is it illegal to pass that message along? I don't know, but I bet not.

And really - someone bugs McConnell's campaign headquarters and this is the best they get? Ashley Judd is a flake - who knew?
1 year ago
1 year ago Link To Comment
I am locked in the the 'butt-dial' theory that one of the aides hit the wrong button on his not-so-smart phone and left a weird message on the wrong answering machine.

I mean really - someone bugs McConnell's campaign office and this is the best they get?
1 year ago
1 year ago Link To Comment
Don't you know those laws only apply to Republicans?
1 year ago
1 year ago Link To Comment
A lot of subjective assumptions being made-inferred, to convict somebody or party well before an investigation of the facts are made. That somehow, seems a bit contrary to our judicial system. Thanks goodness, theres still a very few people left who walk around with their feet on the ground and their heads screwed and try to deal with just the facts as revealed by legitimate and competent sources.
1 year ago
1 year ago Link To Comment
And of course YOU are one of those people. I'm so grateful you're here to correct our thinking for us.
1 year ago
1 year ago Link To Comment
Do you mean like the Martin-Zimmerman debacle? As time has gone by, it seems the left did everything they could to paint Zimmerman a racist including an NBC doctored audio tape that NBC later apologized for. Had it been Fox news, the left would have stormed the building (massive protests) and called for severe penalties to everyone involved.
1 year ago
1 year ago Link To Comment
Had FNC not nationalized and politically sensationalized the case before it hardly got started, the case would have been adjudicated just like all other cases in that sleepy little quiet town!
1 year ago
1 year ago Link To Comment
Oh, now that's just dumb. It's not supposition that there *is* a recording. Given the existence of the recording, it's not supposition that someone *made* the recording. The surreptitious recording is a crime under Federal and Kentucky law. Hans then finishes with "News reports indicate that the FBI is investigating and that the U.S. Attorney’s Office in Louisville has also been notified. But we won’t know if the applicable federal and state laws were, in fact, violated, until we know who made the recording."
1 year ago
1 year ago Link To Comment
Oh now Charlie!
"But we won’t know if the applicable federal and state laws were, in fact, violated, until we know who made the recording."

Since when, with evidence presumably in hand, do you have to know a persons name to determine if in fact a crime was committed? If a member of the staff inside, made the surreptitious recording, it would no longer be a crime? Regardless, the whole thing is a silly diversion to be wasting time on!
1 year ago
1 year ago Link To Comment
Now if someone would release recordings of the Gang of 8 meetings...
1 year ago
1 year ago Link To Comment
I'd love to hear tapes of the DOJ meetings just after details of "Fast and Furious" were released. Maybe tapes of the meetings in the White House just after the it was determined the murders in Benghazi weren't the result of the ridiculous video this administration initially blamed it on.
1 year ago
1 year ago Link To Comment
Eric Holder's DOJ is going to get right on this.

Right after they confess to running guns to drug cartels, not prosecuting civil rights violations against whites, and slow running ballots to our men and women in service.

The leftist media and this administration...but I repeat myself...are not going to go after each other. Ever.
1 year ago
1 year ago Link To Comment
Right, the DOJ will get to the bottom of it.
Should something unexpected happen, there is always the presidential pardon.
1 year ago
1 year ago Link To Comment
Yeah. I don't see the future as looking too kindly on those pardons at this point. All things considered.
1 year ago
1 year ago Link To Comment
I would have bothered to write something original but you beat me to it.
Nothing going to happen. Didn't even bother to finish article.
1 year ago
1 year ago Link To Comment
This is why we keep losing. We're stupid. Dumber than a bag of doorknobs.

How many times do you have to be burned before you learn?

1) no one brings cellphones or other recording devices. no one. not even your mom.
2) no one at the meeting who you don't know/trust
3) sweeps and jammers/white noise generators (the guy is a freaking Senator, he knows where to get guys who sweep)
1 year ago
1 year ago Link To Comment
On the otherhand Harald -- McConnell got a 24-hour media run of free media hype and of course high priority fodder for the radicalized political activists.
1 year ago
1 year ago Link To Comment
There ought to be a law to protect us from the likes of Mother Jones! I say we follow the British lead on news media wiretapping. Let's just create a government bureaucracy that, let's say, "manages" the output of the news media. Oh, but that wouldn't happen in today's America, because the wiretapping was done to hurt the party out of power.
1 year ago
1 year ago Link To Comment
Well, and the First Amendment might interfere a little.
1 year ago
1 year ago Link To Comment
The entire Watergate affair started when the burglars were caught trying to wiretap the Dem Party headquarters.

Liberals painted that out as the start of some American fascism.

Until they got the opportunity to pull the same stunt, as they have here.
1 year ago
1 year ago Link To Comment
But it's different, now.
1 year ago
1 year ago Link To Comment
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