McConnell campaign on Ashley Judd: Was secret recording legal?

Kentucky state law suggests the secret recording of a McConnell campaign strategy session – posted Tuesday on the Mother Jones website – could be illegal. The FBI is also getting involved. 

Republicans are crying foul – and raising the memory of Watergate – over the release of an embarrassing secret recording of a strategy session for the reelection campaign of Sen. Mitch McConnell (R) of Kentucky. Senator McConnell, the top Republican in the US Senate, was present at the meeting.

Audio from the Feb. 2 meeting, posted Tuesday on the liberal Mother Jones website, included discussion of (and laughter over) past comments and travails of actress Ashley Judd, who had considered running against McConnell but decided not to. 

The McConnell campaign denies that anyone on its staff leaked the recording.

“Secret recordings, private conversations leaked, reports of bugs – these Watergate-era tactics have no place in our campaigns,” Sen. Jerry Moran (R) of Kansas, chairman of the National Republican Senatorial Committee, said in a statement.

The McConnell campaign is working with the Federal Bureau of Investigation and has notified the US Attorney’s office in Louisville about the matter, McConnell’s campaign manager, Jesse Benton, told NBC News.

The incident brings to mind the secret video recording last year of GOP presidential candidate Mitt Romney talking about the “47 percent” – people who will vote for President Obama “no matter what” and are “dependent upon government” – also posted on the Mother Jones site. That video may have been the most damaging moment in Romney’s campaign.

But in legal terms, the McConnell recording is different. Mr. Romney was speaking at a fundraiser in Florida, and while it was a private event, he could reasonably expect that he might be recorded.

In McConnell’s case, campaign staffers – and the senator himself – could have a reasonable expectation of privacy when meeting behind closed doors. So the making of the recording could be illegal.

Kentucky law states that a person is guilty of eavesdropping – a felony – “when he intentionally uses any device to eavesdrop, whether or not he is present at the time.” Kentucky law defines the term "eavesdrop" as meaning “to overhear, record, amplify, or transmit any part of a wire or oral communication of others without the consent of at least one party thereto by means of any electronic, mechanical, or other device.”

“If there was no consent by anybody, it would seem as though whoever planted the tape could be charged with eavesdropping under Kentucky law,” says Joshua Douglas, a law professor at the University of Kentucky, Lexington.

As a political story, the most salient point may not be the discussion of Ms. Judd’s potential vulnerabilities as a candidate – including her mental health history and her views on religion. After all, we now know Judd’s not running. It could be the fact that the recording shows that, as of Feb. 2, the McConnell campaign didn’t have much on another possible opponent, state Attorney General Alison Lundergan Grimes, notes Washington Post political blogger Chris Cillizza.

“The best hit we have on her is her blatantly endorsing the 2008 Democratic national platform,” says one attendee at the meeting. 

“Translation: McConnell doesn’t have much on Grimes,” writes Mr. Cillizza. “Attacking her as a tool of President Obama might do some damage, but as we’ve seen in recent years – Jon Tester in Montana, Heidi Heitkamp in North Dakota – simply linking a Democrat in a conservative state to Obama isn’t a foolproof strategy for victory.”

Tuesday afternoon, the Democratic Senatorial Campaign Committee jumped into the fray, calling on McConnell to apologize for using “taxpayer-funded legislative aides” to conduct campaign opposition research and for “insulting millions of Americans who suffer from depression.”

On the recording, campaign staffers were heard discussing Judd’s battles with depression, which she wrote about in her 2011 memoir, “All that is Bitter & Sweet.”