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.