Why Curtis Morrison's Confession Might Not Be As Dumb As it Appears

Curtis Morrison in the individual who secretly recorded a strategy conversation that took place in Mitch McConnell’s campaign office in February. Audio of the conversation was later published by David Corn at Mother Jones.

Today Morrison wrote a piece at Salon in which he confessed to having made the recording. Morrison maintains he does not regret doing it, though he knows he could still be charged.

While on the one hand Morrison’s confession seems like a dumb move it is still possible he is making the best of a bad situation. Remember, there was one eyewitness to the taping, Shawn Reilly, who Morrison says is no longer a friend. In addition, Morrison apparently bragged about it to another state Democratic operative who eventually broke the story in an effort to insulate the party from his actions. So the brute fact that Reilly did the deed was never going to remain hidden under the circumstances.

Morrison’s remaining hope is an exception to the Kentucky eavesdropping law. The exception is not actually found in the statute itself, but (as noted by the Volokh Conspiracy) appears as a commentary on the statute by the Kentucky Crime Commission/Legislative Research Commission. That commentary reads:

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.

And perhaps not coincidentally, the details of Morrison’s story seem designed to pass him through this loophole. For instance, he writes that he went to the site of the meeting and found “the front door to the office building was unlocked, and there was no one behind the reception desk.” Morrison continues:

Walking down the hall of the second floor, I recognized McConnell’s
voice. He was talking about Sen. Rand Paul’s strategic use of the Tea
Party in procuring his 2010 election. The voices were coming from
the other side of a nearby door, which had a window. I pulled out my
Flip camera and started to record.

So Morrison claims he overheard specific voices. Obviously this means they were loud enough to be heard in the hallway without amplification. This is precisely the loophole spelled out in the Kentucky Crime Commission commentary. Morrison account can be read as a claim that McConnell’s staff did not “take the steps necessary to insure that his
conversation cannot be overheard by the ordinary ear.”

There are still many things we don’t know–whether Morrison’s account is accurate, whether a grand jury will believe him, and whether the law commentary will be considered dispositive on the meaning of the statute. But given that there was really no escaping the fact he was there and made the recording, Morrison’s story is probably his best chance at avoiding legal consequences for his actions.