You will read here what you are unlikely to read in newspapers, magazines, and other non-blog media.
It’s about illegally taped phone calls.
Now this could turn out to be an embarrassment, not only for Tim Russert of NBC, but Matthew Cooper, White House correspondent for Time Magazine, and New York Times reporter Judith Miller. They have all been questioned by the FBI and testified before the Grand Jury in the “let’s get Libby (and then Bush)” matter, contradicting him under oath, and exposing him to charges of obstructing justice, making false statements, and perjury.
But they themselves may not be clean. Anyone who has been interviewed by the print press will know that the first thing a journalist does is to produce a tape recorder and plunk it down on a table in front of you, or perhaps it remains held in their hand with a microphone attached. No problem, it is there for all to see. The journalist is not only using it as a reference for a written article, but also to make sure that the quotes are exact, and not least to protect themselves from lawsuits in case the interviewee later claims that he or she has been misquoted. Permission is implied.
But telephone calls?
Of course of course, the same motive holds even more true, because people will be more likely to speak off their guard.
And so, just about every professional writer in that position will tape a phone call, and almost always without informing the person at the other end. And there are clever little machines, made by foreign companies such as TakaCom from Japan, that don’t give out the giveaway beep signal that the call is being taped. (Yes, I have one.)
This method also allows one to write with easy access to the material, and is a useful note taker too, and is almost always not used for any sinister purpose.
But I found out the hard way when you want to use it in a court of law.
If you read my Topic “Housecalls” on the left, you will see where I “secretly” taped a conversation I had with Universal lawyers in a discussion over a settlement of our lawsuit over Lynn’s firing from her very successful CBS television series (yes, the famous breast-feeding case, which she insisted on bringing).
That conversation, the court ruled, was an enforceable contract, and we were held to it, and the case was dismissed. But was I able to play it in court, to have the court hear the transcript to prove that any contract was subject to a written and signed agreement? No, the court ruled, I had broken the law, and it was not to be used. I waved the tape in front of the judge (no jury, unfortunately). I said that if the court ruled that this was a contract, then it had legitimized the taped conversation. It made as much sense not to listen to it, as it would be to not be allowed to read a written contract. Of course, I did not then realize that we were up against and further victimized by Hollywood’s recognized overlord, Lew Wasserman, who, it was said, could not be defeated in a Los Angeles court of law. We were also (mis)represented by the notorious outlaw firm of Finley Kumble & Associates.
So here we have multiple journalists, and other important witnesses, who will be caught up in the legal net thrown by prosecutor Patrick J. Fitzgerald.
And Libby’s attorneys will of course proclaim that the evidence presented by the media was either hearsay, or of the “he said, she said” variety, inherently untrustworthy, or that their evidence is tainted, coming from people who routinely break the law.
And Fitzgerald, if he hasn’t already, or some other prosecuting team at a later trial, will have the problem over secretly taped phone calls. Of course they are proof positive and best evidence of what was really said, like a video tape is so often best evidence these days, but still, illegal.
And the journalists will risk jail if they admit to secretly taping phone calls, and jail if they falsely deny it, and the judge will have to consider whether they should be disallowed in open court but maybe in chambers, and the prosecutor will look like he is using his discretion to selectively prosecute, even though his own witnesses have broken the law, and his witnesses will want to plead the Fifth Amendment if pushed.
The law is a tangled rope of idiocies, and this lawyer-run land has hoisted itself with it, and there will be no easy solution, or satisfactory resolution.
Except that the lawyers WILL be paid.