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FBI 'investigating' McConnell's complaint about Mother Jones? Not quite

Senator Mitch McConnell responds to audio recordings from a strategy session being leaked from his campaign office. The recordings featured talk about his potential challenger actress Ashley Judd.

For the FBI, the word "investigating" is a term of art – just look at a federal official's statement on Sen. Mitch McConnell's allegations that a meeting in his campaign offices in February was illegally recorded, with a copy of the recording ending up in the hands of Mother Jones magazine.

It would appear, from the official's statement, that the case has not reached the point of an investigation: It's worth noting that the official says the FBI "is looking into" the allegations.

As a general matter, it would be a federal crime to plant a bug in someone's office to record their conversations. It would not be a crime, however, if someone who was taking part in the campaign staff meeting was the person who made the recording. 

Mother Jones, which on Tuesday published a story based on the recording, hints at that possibility in its most recent statement, when it says, "It is our understanding that the tape was not the product of a Watergate-style bugging operation."

As for the magazine's potential legal liability, the federal wiretap law appears to make it a crime to disclose the contents of a bugged conversation "knowing or having reason to know that the information was obtained" illegally.

Alex Wong / Getty Images

Senate Minority Leader Sen. Mitch McConnell

However, in 2001, the U.S. Supreme Court held, in a case involving a recording obtained under somewhat similar circumstances, that the First Amendment protects the public discloser. The recording in that case was of an intercepted phone call between the president and the chief negotiator of a Pennsylvania teachers' union during contentious contract talks with the local school board.  A radio talk show host played the tape and was sued, but the court held, by a vote of 6-3, that the disclosure was protected by the First Amendment because it involved an issue of public importance.

"A stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about matters of public concern," said Justice John Paul Stevens, who wrote the court's opinion. 

More reporting from Open Channel: