Thanks to Illinois Review for cross-posting this piece.
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During impeachment hearings before the Illinois legislature on Thursday, December 18, 2008, Gov. Rod Blagojevich’s attorney, Ed Genson, repeatedly objected to legislators using “illegal” wiretap information as part of the impeachment proceeding. Illinois legislators seemed dismissive, at times opining that they were not necessarily bound by the rules of evidence.

The legislators may not have realized it, but Genson fired an enormous warning shot across their bow. The use of “illegal” wiretap information is a federal criminal and civil offense. Genson’s warning has put the legislators on notice of the alleged illegal nature of the material, a necessary element of the offense.

18 U.S.C.A. § 2511 (interception and disclosure of wire, oral, or electronic communications prohibited) is the federal statute barring disclosure or use of illegal wiretap information:

(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;
(d) intentionally uses, or endeavors to use, 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).

(4)(a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.

Another federal statute, 18 U.S.C.A. § 2520, provides a civil cause of action whereby the victim of an illegal wiretap can sue others (but not the U.S. government) for compensatory and punitive damages resulting from the disclosure or use of illegal wiretap information.

If the wiretaps on Gov. Blagojevich were illegal as Genson claims, then the use of the wiretap information may be illegal. In order to hold a defendant liable, there must be “intent,” which can be shown with proof that the defendant knew of the illegality at the time of use. Genson now has put the legislature on notice, so the intent element would be established. Was that the purpose of Genson’s warning?

This is a very complicated area of law, and the legislators may have defenses related to the use of the material for matters of public concern. In a famous case, U.S. Rep. John Boehner ultimately prevailed on his civil claim against fellow U.S. Rep. Jim McDermont on a claim that McDermott unlawfully disclosed and used an illegal recording of a conversation in which Boehner was a party. The case took a decade to resolve, including numerous appeals and reconsideration, before the courts upheld Boehner’s claim, and rejected McDermott’s defenses.

The moral of the story is not that the legislators would be guilty of a federal crime and open to civil claims, but that they might be and need to tread very carefully. And “might be” is a pretty big hammer for Blagojevich to use to his advantage in the impeachment hearings.