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Mitch McConnell Tape Fallout: FBI Digs In, How Progress Kentucky Helps the GOP, Was it Illegal?

With the news broken that Progress Kentucky was behind the secret recording of a strategy meeting between Senator Mitch McConnell and his campaign staff, there are a few questions that remain.What happens to the people who made the tape?Jacob Conway with the Jefferson County Democratic Party says Progress Kentucky founder Shawn Reilly and then-volunteer Curtis Morrison made the recording. Reilly now has a lawyer, and he's throwing Morrison under the bus. After a press conference Thursday, WHAS11's Joe Arnold tweeted:

Reilly is admitting he was at the McConnell campaign headquarters, but that anything illegal was done by Morrison.Was it really illegal?Conway and other sources have said the recording was made in the hallway of an office building, through a ventilated door. Here's a picture:

Kentucky law describes eavesdropping as "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 electric, mechanical or other device." But Louisville criminal defense attorney Brendan Mcleod, says if the parties could be heard with the naked ear, then he doesn't believe that would be eavesdropping.  "Now, if you had something that was super-sensitive and I guess, lower decibels, and you know that’s something that the human ear couldn't hear and the whole object of the meeting was that it was privacy and it wasn't to be heard or recorded and you used this device yeah that could probably be considered and fall under the guise of eavesdropping."


The eavesdropping law was written in the 1970s, so it doesn't reflect some of the newer technology. If charges are filed, this could be a very technical court case.


What does this mean for the U.S. Senate race?

Last month, when Progress Kentucky first gained national attention for a series of tweets about McConnell's wife, former labor secretary Elaine Chao, and her ethnicity, Morrison left the group.


Reporter Joe Sonka wrote Progress's obituary in LEO, saying the super PAC's demise would ultimately boost the "Ditch Mitch" movement:


And this is why Democrats who want to defeat McConnell have a great sense of relief right now, because Progress Kentucky is effectively dead, and they’ll soon be replaced by a new group of seasoned professionals who know how to mess with a powerful political candidate on the ropes and know how to raise a hell of a lot of money to further that cause.When asked why he was willing to talk on the record, Conway (whom we approached, not vice versa) said he wanted to protect the Democratic Party from "amateur hour" tactics.Conway says Progress Kentucky's "heart is in the right place" with its goal of unseating McConnell, but what he calls their amateur approach to politicking does Democrats no favors.In his interview, Conway called Progress Kentucky a "so-called Super PAC" and said the inexperience of the people behind it (Reilly and Morrison have been involved in party politics and activism for years, and both have sought elected office) ends up damaging their efforts by giving McConnell an easy target.“McConnell can't run on his record, because his record is sub par. Instead he attacks," said Conway, adding later, “By lumping their poor mistakes, their poor planning, their bad behavior, into that of two organizations—the state party and the national party–which they are not affiliated with...that serves his purpose. Because when we do get a candidate, hey, we're all carrying the stink of Progress Kentucky.”  

Time Magazine hit on this same issue in its reporting.Writing in the Swampland blog, Alex Altman says Progress Kentucky "is particularly small-fry" but boosted by a controversy over tweets regarding McConnell's wife, Elaine Chao, and her ethnicity. The piece concludes:

Conway told NBC News that he came forward now to dissociate the group from the Democratic Party. But the upshot of the episode is that instead of a news cycle or two of pundits chewing over whether it’s fair game for the most powerful Republican in the U.S. to attack a would-be opponent for suffering from depression, the story becomes a scandal about a surreptitious bugging operation. This is the second time in two months that Progress Kentucky, a group whose entire existence seems geared toward taking down McConnell, has instead propped him up. With enemies like these, who needs friends?

The surreptitiousness of the recording, and the decision to release it through Mother Jones magazine drew parallels to the infamous 47-percent video that dogged former GOP Presidential candidate Mitt Romney, the McConnell tape has been overshadowed by the controversy. And, it's given the GOP leader a new target for his attacks—Progress—even if it's one he's aimed at before. WFPL intern Rae Hodge contributed to this story.