The Gingrich Cellular Phone Call
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KWAME HOLMAN: Even the most imaginative of political fiction writers would be hard pressed to top the tale Alice and John Martin told yesterday.
ALICE MARTIN: We’re just scared.
JOHN MARTIN: We’re just scared.
ALICE MARTIN: We really are.
KWAME HOLMAN: There they were on December 21st, they said, driving from their home in Fort White, Florida, to do some Christmas shopping in nearby Lake City. They were listening to a police scanner John Martin had gotten for his birthday. Also, there was a small cassette tape recorder in the car.
JOHN MARTIN: We kind of record stupid jingles and stuff off the TV set–off the TV and off the radio in the car and–
KWAME HOLMAN: At the same time the Martins were on the road so was Congressman John Boehner, a top member of the House Republican leadership. He was driving through the Lake City area, the last leg of a trip from his home in Ohio, to Marco Island off of Florida’s West Coast. But then Boehner pulled off the road and picked up his car phone to join a conference call.
ALICE MARTIN: I was excited. I mean, I was so excited to think that I actually heard a real politician’s voice.
KWAME HOLMAN: The Martins picked up the call on the police scanner and after a few minutes began recording it.
JOHN MARTIN: We thought it was just a part of history really. I mean–
KWAME HOLMAN: Among those participating in the conference call with Boehner were Republican Majority Leader Dick Armey, Republican Whip Tom Delay, New York Congressman Bill Paxon, and House Speaker Newt Gingrich, discussing possible responses to Ethics Committee charges against Gingrich to be disclosed later that day.
ALICE MARTIN: We’re going to have a grandson at the end of January, and we were thinking how neat it would be to play this tape for him and him hear the voices of people that we thought were important. That’s really all it was going to be is a little tape we put aside and when he was old enough to hear it, he could hear it.
KWAME HOLMAN: Included on the tape reportedly is this conversation: Congressman Paxon: “If we have several hours or a day go by when our members are out there without a response, it will be a disaster. That’s right.” Congressman Armey: “Right.” Paxon: “When will we see your statement, Newt?”. Speaker Gingrich: “My guess is–and I think they are running about 15 minutes late–my guess is we will have our statement out before noon.” The Martins, long-time Democrats, gave the tape to Florida Congresswoman Karen Thurman, who later gave it back to the Martins and recommended they give it to Congressman Jim McDermott, the ranking Democrat on the Ethics Committee investigating Gingrich. In Washington last Wednesday the Martins waited for McDermott outside the Ethics Committee room in the capitol.
REPORTER: Had you ever met Mr. McDermott before?
ALICE MARTIN: Oh, no, no.
REPORTER: Did you know what he looked like?
ALICE MARTIN: We had a vague idea that he had white hair from physical description and that way, so we went back and we went back behind where the cameras were, and we asked, I think there was a policeman or a security guard if he could help us because we weren’t exactly sure what Mr. McDermott looked like, and we said, when we see him, could you, could you point him out to us, we need to give him something. And he said, oh, sure. So it seemed like in just a few minutes Mr. McDermott became–coming down the hallway–we asked to see him, and we told him we had something to turn–we told him we had something to turn over to the Ethics Committee, and he asked us who we were. He took the envelope in his hand and he felt where the tape was, and he said he would listen to it. And then he asked if there was any way to get in touch with us. And so my husband gave him one of his STPNEA cards, and he said, thank you, and we said, thank you, and we left.
KWAME HOLMAN: Two days later the contents of the tape were on the front page of the “New York Times.” The tape potentially could cause problems for Newt Gingrich, who had made a deal with the Ethics Committee not to orchestrate a response to its charges. But the tape might cause problems for McDermott as well because federal law prohibits intentionally intercepting telephone calls or intentionally disclosing their contents. Late this afternoon McDermott announced he will recuse himself from any further work on the Gingrich ethics matter. As for the Martins, they too could be prosecuted for their actions.
JOHN MARTIN: I just felt that–that if I brought this tape and handed it over that there would be nothing against me because I didn’t use it in a court of law. I felt that the Ethics Committee was like a court of law, but you know–
LARRY TURNER, The Martins’ Lawyers: My hope is that once it’s understood that these folks are Mr. and Mrs. John Q. Citizen, who happened to discover something they felt was pertinent to the Ethics Commission and did what I think we want citizens to do, which is take it to the commission responsible for the investigation and say, here, you do what’s right, my hope is that those who are responsible for making prosecuting decisions will decide this shouldn’t be prosecuted.
KWAME HOLMAN: The entire tape episode has been turned over to the Justice Department for investigation.
JIM LEHRER: Charlayne Hunter-Gault takes the story from there.
CHARLAYNE HUNTER-GAULT: We turn now to the legal and technological aspects of this case. David Banisar is a public policy analyst with the Electronic Privacy Information Center, a public interest group that tracks new technologies and how they affect privacy. Mr. Banisar, thank you for joining us. How easy is it to intercept a cellular telephone conversation?
DAVID BANISAR, Electronic Privacy Information Center: Technically it’s very easy to do. All you need is a scanner, which is just basically a simple electronic device you can buy at Radio Shack or Best Buys or anything like that.
CHARLAYNE HUNTER-GAULT: And how does it work?
DAVID BANISAR: It’s a device like an AM or an FM radio that listens to more than just the AM and FM radio bans. You can listen to TV bans, and you can also listen to cellular phone calls and cordless phones.
CHARLAYNE HUNTER-GAULT: You plug it into your cigarette lighter? I mean, how does it–how do you set it up?
DAVID BANISAR: It looks like a walkie-talkie, and you just turn it on and tell what frequency you want to listen in on.
CHARLAYNE HUNTER-GAULT: And is it–and you say you can listen to cellular phones, as well as regular phones, cordless phones?
DAVID BANISAR: Cordless phones.
CHARLAYNE HUNTER-GAULT: Only cordless?
DAVID BANISAR: Right. It has to go over the air before it can listen to it.
CHARLAYNE HUNTER-GAULT: So a regular phone that sits on the desk or hangs on the wall doesn’t work.
DAVID BANISAR: Right.
CHARLAYNE HUNTER-GAULT: Now, is it mostly random things that it picks up, or can you actually target a cellular phone that you want to listen to?
DAVID BANISAR: Well, it can only listen to things within say a mile of where it is. So it would have to be cell or cordless phone calls within a mile of it. And then it’s mainly random, unless you have a very sophisticated one that can look for a particular phone number.
CHARLAYNE HUNTER-GAULT: So there are those who can do that?
DAVID BANISAR: Right. That’s mainly limited to law enforcement though.
CHARLAYNE HUNTER-GAULT: But mainly limited–but can citizens acquire them?
DAVID BANISAR: You could acquire them, but it would be difficult to do.
CHARLAYNE HUNTER-GAULT: You couldn’t just buy one in the store?
DAVID BANISAR: Right.
CHARLAYNE HUNTER-GAULT: Now, how difficult is it to actually record a conversation that you’re listening to on a scanner?
DAVID BANISAR: Well, it’s a bit more difficult because usually scanners are not hooked into something like a tape recorder, so you either have to modify your scanner or buy a very expensive one that has a tape recorder hooked into it, or have a tape recorder sitting right next to it just at the right time to record something.
CHARLAYNE HUNTER-GAULT: Is that–I mean, do people tend to do that in tandem with scanning? I mean–
DAVID BANISAR: I think most people that listen to scanners just listen to the scanners; they don’t record.
CHARLAYNE HUNTER-GAULT: Is it against the law to pick up a conversation off of a cellular phone with a scanner?
DAVID BANISAR: Under the Electronic Communications Privacy Act it’s a violation of federal law to listen in on a cellular phone conversation.
CHARLAYNE HUNTER-GAULT: And what exactly–the law says that, as I understand it, it’s illegal to intentionally intercept a cellular phone conversation, right?
DAVID BANISAR: Right.
CHARLAYNE HUNTER-GAULT: But that’s what the law says.
DAVID BANISAR: It’s not only illegal to intercept the conversation but it’s also illegal under a different provision of it to disclose that conversation once you listen to it.
CHARLAYNE HUNTER-GAULT: You mean to turn it over to somebody else?
DAVID BANISAR: Right. To make a recording and to give it to somebody, or to even repeat what was said on that conversation is a violation.
CHARLAYNE HUNTER-GAULT: And to record it–
DAVID BANISAR: Yes.
CHARLAYNE HUNTER-GAULT: –also?
DAVID BANISAR: That’s also a violation.
CHARLAYNE HUNTER-GAULT: And what about the people who receive the contents of it, are they covered under this law as well?
DAVID BANISAR: There’s not a specific provision that prohibits you from receiving an illegally recorded phone call, but if you disclose it again, you’re then also covered under the law.
CHARLAYNE HUNTER-GAULT: In effect, the person who receives it, if he then or she then discloses it, that’s also illegal?
DAVID BANISAR: Right. If you throw it in the garbage, it’s probably not a violation, but if you were to say give a transcript of it to the “New York Times,” it would probably be a violation.
CHARLAYNE HUNTER-GAULT: Right. Now, are there any exceptions where it would not be illegal to do any of this, I mean, for example, to a congressional committee or law enforcement people, or whatever?
DAVID BANISAR: Well, law enforcement has to get a court-ordered search warrant to be able to do a wire tap, to be able to intercept a phone conversation. There are some constitutional rules about congressmen are allowed to say things on the floor of the House, or allowed to do things in committees that may allow them to disclose information that they obtained, but in this case it’s unclear that those would apply.
CHARLAYNE HUNTER-GAULT: All right. If it’s illegal to pick up conversations intentionally with a scanner, why are scanners not illegal?
DAVID BANISAR: Well, up until two years ago or three years ago, scanners were freely available, that you could just buy at Radio Shack, that would do this. Then Congress passed another law that said that you can’t listen in on those–on those frequencies. But there are a lot–probably hundreds of thousands, if not millions, of scanners that are older than two years old that you can still use.
CHARLAYNE HUNTER-GAULT: What is the penalty for doing all the things that we’ve been talking about, listening in on conversations intentionally, or–I mean, is it the same penalty for all of those things to listen in, to record it, to pass it on, et cetera?
DAVID BANISAR: It’s a five-year–the maximum penalty is five years in jail and up to a $250,000 fine.
CHARLAYNE HUNTER-GAULT: All right. Mr. Banisar, thank you for joining us.
JIM LEHRER: Now to a debate about all of this and to Margaret Warner.
MARGARET WARNER: We get that political debate from two California House members. Vic Fazio is chairman of the Democrat Caucus and David Dreier, a Republican, is vice chairman of the Rules Committee. Welcome, gentlemen.
REP. DAVID DREIER, Vice Chairman, Rules Committee: (Kansas City, Missouri) It’s nice to be with you.
REP. VIC FAZIO, Chairman, Democratic Caucus: (Capitol Hill )Thank you, Margaret.
MARGARET WARNER: Congressman Fazio, starting with you, was this the right move for Congressman McDermott to make, to recuse himself now from further consideration in the Ethics Committee-Gingrich matter?
REP. VIC FAZIO: I certainly think so. I think Congressman McDermott felt he was becoming a distraction. He, like the other members of his Committee, have invested many, many months, in fact, almost two years in this investigation. I think he felt it was the right thing to do to step aside, and to, in effect, set an example, perhaps one the Speaker should have taken by stepping aside from the speaker’s chair for at least a couple of weeks until this issue is resolved. What will happen in the future I don’t know, but I know that Congressman McDermott believes that he has acted in kind of an idealistic sense, wanting to get all the facts out. But I really believe that should be resolved by other agencies that have proper authority. I’d like to focus on finishing up the Gingrich matter.
MARGARET WARNER: All right. Was he asked or encouraged to do this by the House Democratic leadership?
REP. VIC FAZIO: I think this was a decision he came to on the premise that he realized that the Republican leadership and others were going to make him the issue of the week in which we finally ought to have a public hearing, one we don’t have scheduled, on what actually did transpire with the Speaker, and he–he saw himself as an impediment to getting to justice when we were almost at a point sometime between now, I hope, and February 4th, in bringing to public discussion all the facts and to have the kind of hearings and floor debate that will lay to rest once and for all the Speaker’s problems with the use of taxpayers’ funds for political purposes.
MARGARET WARNER: Do you take his recusal as an admission that he, in fact, did leak this tape to the “New York Times?”
REP. VIC FAZIO: I think it would be inappropriate for me to typify what Mr. McDermott believes, but I certainly would not assume that a recusal is an admission of guilt. I think it is an admission of the fact that he was becoming a distraction. He did not want to be one, and I think he did the right thing by letting the process go forward without that distraction.
MARGARET WARNER: All right. Congressman Dreier, how do you read this decision by Congressman McDermott?
REP. DAVID DREIER: Well, let me say that the whole thing is very unfortunate, Margaret. I believe that frankly for him to say that he is going to recuse himself is, in fact, about as close to an admission of guilt as one could possibly get. And I think it’s unfortunate that Vic would liken what is obviously a federal felony to the class that Newt Gingrich has taught. I’m really saddened that we have gotten to the point where Congress has failed to hear the message that the American people sent to us last November. They re-elected Bill Clinton President and made a conscious decision to re-elect a Republican Congress for the first time in 68 years. Now what I–on the opening day I introduced legislation to take the top rate on capital gains from 28 to 14 percent. I’m working on dealing with this problem of diplomatic immunity. And one of the most important things that’s going to take place in just a few weeks is for the first time in the history of our country. My colleagues, David Skaggs and Ray LaHood, are leading us to a bipartisan retreat. Now, the sad thing is that David Bonior and Martin Frost are really the two who have virulently opposed our attempts to–
MARGARET WARNER: By two members of the–
REP. DAVID DREIER: –give–
MARGARET WARNER: –Democratic–
REP. DAVID DREIER: Yeah. Two members of the Democratic leadership, they have opposed, Margaret, our attempt to bring about bipartisanship and frankly, they are on the very liberal end of the Democratic Party, and they are joined by–remember the former chairman of the Ethics Committee which Jim McDermott was in doing this. And I think that if you go back to 1967 and looked at the establishment of the Ethics Committee, I think that people would be distraught to believe that the former chairman, now the ranking Minority member, would take information, as was just described a few moments ago a federal felony, and rather than putting that information into the Ethics Committee for it to be worked on, to release that to the “New York Times” is I think very sad. But these people are–and Cokie Roberts even said this–that the liberal Democrats don’t like the fact that Clinton has embraced our Republican themes of balancing the budget and reducing the tax burden on working Americans and those sorts of things. And so now they’re trying to continue to target Newt Gingrich.
MARGARET WARNER: All right. Congressman, let me bring this back to the McDermott matter for a minute, if I could. You say that you believe he did leak it to the “New York Times.” He’s admitted he took the tape from the Martins but has not spoken to the other issue. What makes you sure that he was the one?
REP. DAVID DREIER: I didn’t say that I’m sure, Margaret. What I said is it’s about as close to an admission of guilt as one could get. Other news sources today are reporting, in fact, that McDermott has done this. Our colleague, Karen Thurman, did according to the reports turn it over to Jim McDermott. In the report that you had from the Martins earlier they said that they waited outside the Ethics Committee and that the tape was given to McDermott, and it appeared then in the “New York Times” within 48 hours. I think one could conclude–could conclude with that and his recusal that he is, in fact, responsible for having done this. And I think it’s very sad. But Jim McDermott, remember, is a very, very liberal partisan Democrat who doesn’t want to balance the budget, doesn’t want to do these kinds of things which Vic has now, I’m happy to say, embraced in many areas, and the President has embraced.
MARGARET WARNER: All right. Let me ask Congressman Fazio, Congressman Fazio, do you know whether Jim McDermott, Congressman McDermott, did leak this to the “New York Times?”
REP. VIC FAZIO: No, I really don’t.
MARGARET WARNER: And has the leadership asked, has your House Democratic leadership asked him?
REP. VIC FAZIO: No. I don’t know whether he has or not. I know one thing, and that is that he understood the swirling controversy surrounding the tape had become a tremendous distraction, so he did the right thing. But what I really would like to focus on is the fact that this is only one small part of a process, and the process is not working well. David talks about our desire to be bipartisan, and I certainly look forward to going on that retreat to Hershey with my Republican colleagues. We do have a yearning desire to get back to basics here and go back to work on the issues of the country. But we have a problem, and that is when the Ethics Committee doesn’t do its job properly, when we can’t resolve these internal conflicts, the entire institution is weakened. And I’m very, very saddened by the way in which we seem to have an orchestrated cover-up here. Suddenly, after a long period of time, before we had any outside counsel appointed, we have now rushed to judgment. We have the Speaker pleading guilty to the charge, and then wanting to have no discussion of it seemingly, except perhaps during the weekend surrounding the Inaugural. We have yet to have a public hearing.
REP. DAVID DREIER: It is set for Friday.
REP. VIC FAZIO: The special outside counsel–
MARGARET WARNER: Congressman, let him finish first.
REP. VIC FAZIO: The special outside counsel has said–this is not the Democrats–the bipartisan members of the committee and the outside counsel said we needed more time. And yet after a meeting in the Majority leader’s office the other night, Mrs. Johnson comes forth and cancels the public hearings. We somehow are stuck on this date of the 21st, when all we’ve asked for is the February 4th date, another couple of weeks, to fully complete the work that special counsel Cole feels we need done before the members can vote. I’m terribly troubled, as a member of the Ethics Committee for eight years in the 80′s, who was involved during the period when Jim Wright was before our committee, that we have seen this process taken over largely by the will of the majority Republican leadership. Mr. Paxon on television on Sunday was talking about when we were going to have meetings as if he was somehow privy to that. That’s totally inappropriate. This is an issue that ought to be resolved fully within the bipartisan committee without the involvement of Republican leadership.
REP. DAVID DREIER: And interestingly enough, let me just say, Margaret, that interestingly enough, after a 14-hour meeting, the bipartisan members of the Ethics Committee did come forward and establish this January 21st date. Throughout the last two years Democrats have been saying let’s get this thing done. They kept trying to speed it forward. And one thing Vic has not said is that the resolution that was offered last Tuesday on the House floor as a substitute to our opening day rules package would have continued this thing ad infinitum. They would have gone as far as the eye can see. Vic now sees an additional weeks, but we know, and in fact many independent observers have said that the Democrats are simply trying to drag this issue out as long as they possibly can. Let me just say that it does trouble me that this is what is taking place. We want to get this behind us so that we can, in fact, govern. Newt Gingrich has come forward and admitted that he’s made errors, and he is willing to do what he can to see us proceed.
MARGARET WARNER: All right. We’re just about out of time. Let me just ask you: What impact do you think this McDermott controversy is going to have on the Gingrich hearing that I believe begins Friday–
REP. DAVID DREIER: It’s set for Friday.
MARGARET WARNER: –and the resolution of all of this?
REP. VIC FAZIO: I don’t think we know, Margaret, when the hearings are to begin. There’s been absolutely no–
REP. DAVID DREIER: They’re set for Friday.
REP. VIC FAZIO: –scheduled hearings.
MARGARET WARNER: Okay. My question really is the impact of this whole McDermott controversy on that.
REP. DAVID DREIER: I think it’s a completely different matter, Margaret. I mean, we’re talking about a–potentially a federal felony here, and I think this is something that obviously is going to be investigated by the Justice Department. But it does underscore the ends to which those opponents of Newt Gingrich’s will go to try and get rid of him and to end bipartisanship.
REP. VIC FAZIO: Margaret, let me say, I don’t know whether it will be an impediment or not. I certainly think it was Mr. McDermott’s desire it not be. It should be handled separately and total. I just hope we will have public hearings and not just on Saturdays and Sundays. I hope we can have the special counsel’s report in time to read it. I hope we can follow the kind of due process that every other Ethics Committee has followed in any circumstance similar to this, including the Jim Wright situation.
REP. DAVID DREIER: That’s why we need to–
REP. VIC FAZIO: That’s all I ask for.
REP. DAVID DREIER: Vic, that’s why we need to reform the ethics process. I wrote a piece in the “LA Times” a week ago last Friday in which I talked about the need for reform. Three years ago we tried to do it. Your leadership wouldn’t allow us to bring it forward. And in the last two years we’ve tried to get independent people involved in ethics.
REP. VIC FAZIO: Well, David–
MARGARET WARNER: All right.
REP. DAVID DREIER: No. We’ve tried to get independent people involved, Vic, in the ethics process over the last couple of years.
REP. VIC FAZIO: We may need–we may need a reform. I think the committee at this point–
REP. DAVID DREIER: Thank you.
REP. VIC FAZIO: –is not really–
REP. DAVID DREIER: I’m going to count on you to support–
REP. VIC FAZIO: You know, we have very little alternative about the reforming now.
MARGARET WARNER: Gentlemen, let me just ask you–before we go let me ask you both a question, starting with you, Congressman Fazio. Columnist Richard Cohen writing in the “Washington Post” today said that this whole affair–and he included both parties–made it appear as if Congress was just indulged–was just indulging in what he called a childish fight. Are you concerned that it may appear that way to the American people?
REP. VIC FAZIO: I’m certainly concerned about it. I think the Republicans have talked a good deal about politics as usual. I think whenever the Speaker is before the Ethics Committees, as Jim Wright was and as Newt Gingrich is today, it is far more than politics as usual. We’re talking about “the” individual third in line for the Presidency who has to have the moral authority to run a most important branch of government, the people’s House.
MARGARET WARNER: All right. Let me let Congressman–
REP. VIC FAZIO: So I do think it’s a very important problem. We’ve got to get beyond this politics as usual impression that this kind of cat fight brings to the fore.
MARGARET WARNER: Okay. Congressman Dreier, quickly.
REP. DAVID DREIER: Margaret, leading into this, Jim Lehrer said the never ending saga of the Gingrich case. People are trying to drag this on, on and on and on. Yes, it’s true, it’s not that some may think that this is a real mess going on in Washington. What they believe is that it is a mess, and they want us to get ahead and govern. So I hear regularly let’s get this behind us and move ahead. And that’s what we’re trying to do. We want to get all the answers, but we want to get this behind us and move ahead in a bipartisan way.
MARGARET WARNER: All right. Thank you both.
REP. DAVID DREIER: And give my best to Warren Christopher. We’re going to welcome him back to Los Angeles.
MARGARET WARNER: I’ll do that. Thank you both very much.
JIM LEHRER: Still to come on the NewsHour tonight a drug testing case before the U.S. Supreme Court and Secretary of State Christopher.