It appears that the McConnell recording really was the result of eavesdropping, not error (as in a 2006 incident involving Schwarzenegger). David Weigel writes at Slate:
What had been a pretty lame package of revelations from a tape became a much better story about the possible illegal taping of a campaign office. (The lameness argued against the theory that a McConnell campaign mole had leaked it. Why blow your wad on 12 minutes of staffers making fun of a candidate who'd dropped out already?) On Thursday, a Kentucky NPR affiliate got a break in the story. Jacob Conway, a Democratic official in Jefferson County (Louisville), revealed that Shawn Reilly and Curtis Morrison of Progress Kentucky had "bragged to him about how they recorded the meeting," which took place after a party at a new campaign office.
If this was true, the blitheringly incompenent Progress Kentucky had handed McConnell a gift -- the second gift from them to him, actually. It was Progress Kentucky, a registered "Super PAC" that hasn't actually raised money, that tweeted a conspiracy theory about McConnell's wife, predicated on the fact that she was born in China. At his Tuesday press conference, McConnell blamed "the left" for "bugging" his office, and he was right. Republicans started digging into Kentucky law, with RNC spokesman Sean Spicer tweeting:Legal Fun fact: Ky. Rev. Stat. Ann. § 526.060 Divulging info obtained thru illegal eavesdropping is a crime, punishable a misdemeanorSo, Progress Kentucky may have broken the law, and broken it for no great gain, which is... totally unsurprising, considering. But conservatives in the NRSC and media are seeking to accuse David Corn of a crime. At the Weekly Standard, Daniel Halper quotes a "GOP operative" who says "If Corn knowingly took this tape from the 'Louisville Plumbers' he's breaking the law here too." But that's not quite how it works. As Erik Wemple wrote on Tuesday, the 2001 Supreme Court precedent of Bartknicki v. Vopper effectively protects a media organization in a situation like this. "A stranger’s illegal conduct," wrote John Paul Stevens, "does not suffice to remove the First Amendment shield from speech about a matter of public concern." As weak as MoJo's story was, the Kentucky Senate race is a "matter of public concern."