There is growing speculation about the potential criminality of the recording made of Senator Mitch McConnell and his staff trash-talking Ashley Judd as a possible candidate should she dare to run against him in his reelection bid. For example, The Huffington Post, running an Associated Press (AP) piece, raises the issue: “Shawn Reilly, Liberal PAC Leader, A Witness In Mitch McConnell Probe.” The facts are still less than clear, and they will, of course, determine if any law was broken. But putting aside the serious bad judgment of making the recording in the first place, based on what we know, was it illegal? And was it, as Mitch McConnell claimed, much “like Nixon in Watergate?” I can’t resist addressing those questions.
Who Was Involved, and How Did They Record Mitch McConnell’s Campaign?
David Corn of Mother Jones first published the audio recording of a meeting of Senator Mitch McConnell at his campaign headquarters in Kentucky where his staff talked about how they were going to attack Ashley Judd if she ran against the senator. McConnell and his staff quickly claimed that they had been bugged by the Democrats, like Nixon in Watergate. Also, his campaign made an over-the-top accusation that these were Hitler-like tactics.
Here is what is currently known about what, it appears, happened. The initial information was from a report by WFPL FM, an NPR station in Louisville. Jacob Conway, a Kentucky Democratic Party official, told the station that Shawn Reilly and Curtis Morrison—activists with the organization “Progress Kentucky,” a PAC seeking to defeat Senator McConnell in his reelection bid—had revealed that they had recorded McConnell. (Reilly and Morrison have not publicly commented so far, so the available information is hearsay, but others have spoken publicly. And more recently, Conway has backtracked on part of his story, namely his claim that he spoke with Reilly, while other parts of the story appear to have remained intact.)
Apparently, McConnell’s campaign office in Louisville held an open house on February 2, 2013, and while Reilly and Morrison were not invited, they attended anyway. Reilly and Morrison arrived as the event was ending, and discovered that McConnell and several aides were holding a strategy session in a meeting room at the headquarters’ offices, and they were able to hear what was being said from the hallway. Morrison apparently recorded the voices. An attorney for Reilly said neither of them left the public hallway.
Conway has not backtracked on key facts in his report: “They were in the hallway after the, I guess, after the celebration and hoopla ended, apparently these people broke for lunch and had a strategy meeting . . . . One of them held the elevator, the other one did the recording and they left. That was what they told to me from them directly.”
According to WFPL, additional sources have corroborated the basics of this account, and they further reported: “The meeting room door is next to the elevators on that floor. McConnell campaign manager Jesse Benton has told multiple media outlets the door was shut and locked on Feb. 2. But the door has a vent at the bottom and a large gap underneath.” WFPL further added: “Apparently the gentlemen overheard the conversation and decided to record it with a phone or recording device they had in their pocket. Could’ve been an iPhone, could’ve been a Flip camera or something like that.”
Was This Watergate-like Activity?
McConnell and his staff’s claim that this activity was a Watergate-like event is long on hyperbole, and short on historical accuracy. The only thing that appears comparable to Watergate in this situation is that operatives of the Progress Kentucky organization, which has been described as a “gang that can’t shoot straight,” were foolish and a bit bungling. Otherwise, it is not even close.
Watergate, as all but the youngest readers will know, was the 1972 surreptitious entry and effort to bug and wiretap the Democratic National Committee (DNC) headquarters on two occasions. On May 28, 1972, Gordon Liddy and his army of burglars and buggers successfully wired the DNC, but they failed to bug the office that they had targeted, namely, that of DNC Chairman Larry O’Brien (they never found his office). The wiretap they mistakenly placed on another phone picked up nothing but secretaries talking to their boyfriends; and the third bug they placed did not work at all. They returned on June 17, 1972 to fix the problems—and after that, they planned to move on to bug President Nixon’s opponent Senator George McGovern on Capitol Hill. But that never happened, because they were arrested at the Watergate after conspicuously leaving electrical tape on the door locks to keep them open, which the night watchman noticed, and which prompted him to call the police.
McConnell is wrong making this incident sound Nixon-like, for neither Nixon nor anyone in the Nixon White House knew that these activities at the Watergate were going to be undertaken. The Watergate break-in and bugging was illegal from start to finish. Nixon made Watergate a terminal event for his presidency not by illegally recording anyone, but rather by covering up the activities of the burglary team, which had previous connections to his White House (where they had performed another illegal break-in, purportedly for “national security” reasons, along with unseemly political activities.) And recording himself doing it all.
To call the activities at McConnell’s campaign Nixonian, or Hitler-like behavior, is so far over the top as to make the Senator and his aides appear stupid. Unlike in Watergate, there was no reported breaking and entering by Reilly and Morrison. And based on the available information, they did not go beyond the hallway, which was accessible to anyone in the building. If it was while in the hallway that they overheard and recorded the conversation that would hardly be a violation of federal law. Nor has there been any effort, so far, to cover up what Reilly and Morrison did.
Federal Law Appears Inapplicable, as There Is No Constitutional Expectancy of Privacy Under the Circumstances at Issue Here
The applicable federal law appears to be Title III of the 1986 Electronic Communications Privacy Act (ECPA), which prohibits wiretapping and electronic surveillance of many wire, oral, or electronic communications. Clearly, Morrison recorded an oral communication. Under the law, “oral communications,” by definition, include only face-to-face conversations taking place in a constitutionally protected area, and that type or area is defined as a space where the speakers have a justifiable expectation of privacy. By the terms of the statute, if one person in a conversation consents to a recording, there is no prohibition on his or her making that recording. But here, no persons in the recorded meeting consented, and neither Reilly nor Morrison attended the meeting.
The key question is whether McConnell and his staff had a reasonable expectation of privacy. Merely the fact that they were behind closed and locks doors will not be determinative. While I have not done exhaustive legal research on the question, a quick look at the law indicates that a conversation that could be heard in a public hallway would not be a protected oral communication under Title III of the ECPA.
The “expectation of privacy” standard was developed under the Fourth Amendment by the U.S. Supreme Court ruling in Katz v. U.S. (1967), where a suspect was recorded in a telephone booth by the FBI and the Court held: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of [4th] Amendment protection.” Following this line of reasoning, the High Court later stated in U.S. v. Santana (1976) that a person at the “doorway of suspect’s home” had no expectation of privacy since the person was all but standing outside. Lower federal courts have found no privacy expectation in a lobby or in common areas of an apartment building in U.S. v. Brown (1999); and held similarly where there was a common hallway that required a separate key to enter the building in U.S. v. Barrios-Moriera (1989).
Regarding overheard conversations in U.S. v. Llanes (1968), a federal court found no reasonable expectation of privacy for a conversation conducted within a home that was audible in a hallway. More strikingly, in a Pennsylvania case, Commonwealth v. Louden (this 1994 ruling is not available without subscription), the court found no justifiable expectation of privacy even within a home where the conversation was audible through the walls. (I noticed, when checking for additional facts, that George Washington Law Professor Orin Kerr has blogged on this subject, and he located federal cases with even closer factual situations, see, e.g., United States v. Carroll (1971), where a conversation was overheard and recorded through a hotel-suite door and the recording was found not to violate the federal statute.)
In short, it appears that a conversation that was overheard and recorded in a public hallway of the building where McConnell has his reelection headquarters is not covered by the federal statute. So I suspect the McConnell campaign will not be holding future opponent-trashing sessions in that room, at least until the landlord provides better soundproofing.
Whether the Kentucky Eavesdropping Law Applies Here Is Anyone’s Guess.
There are very few reported cases under the Kentucky eavesdropping law, and the statute itself is extremely broad and vague. I have not attempted to glean its meaning, but based on the available information, it does not appear more restrictive than the federal law I described above.
Orin Kerr at the Volokh Blog—a George Washington University Law Professor—did some digging here as well, and found commentary from the Kentucky Crime Commission that states that “[a] conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by KRS 526.020. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.” Kerr suspects, as do I, that this state law is not any more restrictive than the federal law on this subject. (Kerr also found federal cases with even closer factual situations than the ones I have cited above.)
If the FBI is still investigating, then they are not involved because a federal crime has been committed, unless they have found a very creative federal connection. Rather, it appears that the FBI is there because a high-profile and powerful federal official wants them to be involved. Mitch McConnell has had varying degrees of responsibility for the selection of every U.S. Attorney and federal judge sitting in Kentucky since he arrived in the U.S. Senate in 1985. He wants the FBI there investigating to scare the hell out of those involved and local FBI Agents like to help out members of the U.S. Senate.
Given the fact that Senator McConnell is not known for his sweet and forgiving disposition, I would not want to predict how this situation will ultimately unfold, notwithstanding the apparent lack of a federal crime. (No one has ever counted the total number of federal crimes found in the U.S. Code, and there are probably 3,500 or more, which gives creative prosecutors a heavy arsenal.) If Senator McConnell cannot build a federal case, he might be able to build one under Kentucky law. Rest assured that that is precisely what Richard Nixon would have done, for he would use any and all efforts and tactics to attack his enemies by any and all means that he could employ. Unfortunately, I suspect that is the same strategy that we will see from McConnell—and that, in the end will be the true Nixonian connection to this case.
What will also be telling, because it is potentially more serious, is whether there will be a real investigation of the potential ethics violations by Senator McConnell as revealed by the recorded conversation. Or whether McConnell’s seemingly lame explanation that his Senate staff was digging up material to attack Ashley Judd on their own time and over the weekends is accurate.