Potential Legal Jeopardy for McConnell Eavesdroppers, Reporter David Corn

While the FBI is currently conducting an investigation into the surreptitious recording and release of the private conversation of campaign aides to Senator Mitch McConnell to determine if any federal laws were broken, the key players may also face state charges. 

Whether or not criminal charges are filed by the Commonwealth of Kentucky may hinge on the judgment of three elected Kentucky legal officers, all of whom are Democrats. Since the recording was made in Jefferson County, Kentucky, jurisdiction could be claimed by Jefferson County Attorney Mike O’Connell, Commonwealth’s Attorney Thomas B. Wine, or Kentucky Attorney General Jack Conway.

On Thursday, Jefferson County Democratic Committee Executive member Jacob Conway (no relation to Attorney General Jack Conway) alleged that two left wing activists associated with the recently organized Progress Kentucky Super PAC, Curtis Morrison and Shawn Reilly, told him they made the recording in the hallway outside a closed door where the McConnell aides were holding what they believed was a private conversation on February 2.

Mother Jones investigative reporter David Corn, a frequent guest on MSNBC, came into possession of an audio recording of this private conversation, and released the recording along with a transcript of the conversation in a story he wrote that was published at Mother Jones on Tuesday, April 9.

According to The Reporters Committee for Freedom of the Press, Kentucky law states that “It is a felony to overhear or record, through use of an electronic or mechanical device, an oral communication without the consent of at least one party to that communication.” (Ky. Rev. Stat. Ann. § 526.020.) 

On the face of it, if Conway’s allegations against Morrison and Reilly are found to be true, their actions would appear to violate this statute, and they would be subject to up to five years in prison if charges are filed and they are convicted. However, a commentary on this statute found in the Kentucky Crime Commission/Legislative Research Commission Commentary to 1974 may offer prosecutors looking for a reason not to file charges with an out. 

Jim Geraghty at National Review Online notes that “[a]ccording to the commentary…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 meant to be protected by the statute, since a person who desires privacy can take the steps necessary to ensure that his conversation cannot be overheard by the ordinary ear.”

Presumably, Kentucky prosecutors will determine if the decision made by Senator McConnell’s aides to hold their conversation in a room with a closed door was a necessary step to ensure their “conversation cannot be overheard by the ordinary ear.” They may also have to determine if an ear — or recording device — placed strategically on the floor at the base of a door is “ordinary.”

If Kentucky prosecutors file charges against the alleged culprits, executives at Mother Jones and Mr. Corn may also find themselves in legal jeopardy. Kentucky law states that “using or divulging information obtained in violation of the state’s eavesdropping law is a misdemeanor.” (Ky. Rev. Stat. Ann. § 526.060) If charges were filed and they were convicted, Mother Jones executives and Mr. Corn would face up to one year in jail and be required to pay a fine of $500.

Before news of Conway’s allegations broke on Thursday, Corn seemed confident that he and Mother Jones were in the clear legally. He asserted last Tuesday that the recording “was not the product of a Watergate-style bugging operation.” 

As the story makes clear, we were recently provided the tape by a source who wished to remain anonymous. We were not involved in the making of the tape, but we published a story on the tape due to its obvious newsworthiness. It is our understanding that the tape was not the product of a Watergate-style bugging operation. We cannot comment beyond that.

Kentucky prosecutors will first have to determine if Corn had a duty to ascertain if the tape was made in violation of Kentucky’s eavesdropping laws. Then, they will have to determine if the Supreme Court’s 2001 ruling in Bartnicki v. Vopper applies to this case.

The Washington Post’s Eric Wemple wrote last Tuesday that in the 2001 case, Bartnicki v. Vopper, the United States Supreme Court ruled that media outlets could report on recordings that may have been obtained illegally if they were “about a matter of public concern.”

In that case, Gloria Bartnicki, a union official caught on tape threatening to blow up front porches if things didn’t go the union’s way, sued Frederick Vopper, a radio talk show host who obtained the recording and played it on air. The Supreme Court found for the defendant, Vopper. In his majority opinion, Justice John Paul Stephens wrote “[a] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” 

But James Taranto pointed out at the Wall Street Journal that in a concurring opinion written by Justice Stephen Breyer, joined by Justice Sandra Day O’Connor “”the Court does not create a ‘public interest’ exception that swallows up the statutes’ privacy-protecting general rule.”

Taranto also notes that while the Court held that a series of violent explosions on front porches was clearly a matter of public interest, run of the mill hardball campaign planning fell far short of that higher standard of public interest.

Late Thursday, WHAS-TV political editor Joe Arnold reported in a series of tweets that Shawn Reilly’s attorney said that “Mr. Reilly is completely innocent of any criminal wrongdoing,” and that “Curtis Morrison is – if anyone – guilty of criminal activity in this case.” 

According to Arnold, Reilly’s attorney disavowed Conway’s version of Reilly role in the taping, but acknowledged that Reilly “was there. He was a witness to Mr. Morrison’s activities . . . Mr. Reilly was present, he was present on Feb. 2.”  Arnold also reported that “Reilly’s attorney  says he has provided material support & information to FBI in their efforts to locate Curtis Morrison.”

On March 1, four weeks after the alleged eavesdropping took place, Mr. Reilly announced that Mr. Morrison had resigned from Progress Kentucky, fall out from ill advised tweets attacking Senator McConnell’s wife, Elaine Chao.

Though Shawn Reilly’s attorney has commented publicly on the ongoing investigation, neither David Corn nor Curtis Morrison have offered much since Conway made his allegations.

Corn responded by email on Thursday to an inquiry from Talking Points Memo, saying “I don’t comment on confidential sources. Can’t say much now.”

Breitbart News spoke by phone with Mr. Morrison on Thursday, but his comments were brief. “I’m sorry, I picked up the number by mistake,” he told us, then hung up. He did not respond to subsequent phone messages or emails.

On Friday the story took another twist when Mr. Conway backed away from his original allegation that both Mr. Reilly and Mr. Morrison had spoken to him of their roles in the audio recording. Though Mr. Conway confirmed that Mr. Morrison bragged to him about making the February 2 recording, he also said that Mr. Reilly may not have made that same claim to him.