By Jean Hay
November 1999

A similar apology to Brennan, who was not a party in the suit, was not forthcoming.

The settlement came three weeks before a second trial was set to begin in U.S. District Court in Bangor. According to court documents, the first trial last summer had ended in a hung jury that was split 8-1. It was clear the BDN legal team did not like the odds.

A review of the court transcript from last summer's trial is very revealing, both in what the BDN legal team did not want the jury to know, and in what the lone reporter in the courtroom, BDN staff writer Jeff Tuttle (or his editors), did not feel was important enough to include in his news accounts of the trial.

(The fact that a reporter working for the defendant in the case was the only one to cover the trial is in itself an indictment of the Maine media.)

First, noticeably absent from the testimony given by Mark Woodward was his job history. Norris' attorney Thomas Watson could question Woodward, who was the BDN's chief editorial writer in October 1996, about the scathing editorial he had written condemning Norris' appearance in the Brennan/Collins race. But Watson was not permitted to establish the fact that Woodward had accepted a job as Susan Collins' Washington press secretary shortly after she won the election. The next fall (1997) Woodward returned to the BDN as its executive editor.

Also not permitted as evidence was the fact that the Warren family, which owns the BDN, was heavily involved in Collins' campaign. The court proceedings came to an abrupt halt when Peter Lindstrom from the Democratic Senate Campaign Committee mentioned on the witness stand that the paper's publisher (Richard J. Warren) was on Collins' campaign finance committee, and that several members of his family had contributed to her campaign. Judge Morton A. Brody instructed Lindstrom at sidebar to avoid any further reference to campaign contributions while he was on the witness stand.

According to FEC reports posted on the internet, one of those Warren family contributors was Publisher Warren's young son, who gave Collins $1,000.

Then there were the very newsworthy items that came out in the trial that were not reported in the BDN coverage.

Despite her repeated denials to reporters on other newspapers, Susan Collins was named by two people under oath as the source of the information that Robert Norris had asked to see Collins' public record in Massachusetts.

One was Robert Tyrer, Collins' campaign manager who in the fall of 1996 was on leave from his Chief of Staff position with Senator William Cohen. (He is now Chief of Staff for Defense Secretary William Cohen.) Tyrer explained how Susan Collins herself had brought in the copy of Norris' request-for-information form, which had been mailed to her home in Maine in accordance with Massachusetts law. They discussed how to play the development for maximum effect, and decided to feed the information to John Day.

And John Day confirmed that Collins was indeed the "Republican source with ties to the [Massachusetts Governor] Weld administration." In fact, Day insisted in his testimony that the reference was transparent, that anyone with any political knowledge could have figured that much out. (Collins was not a witness in last summer's trial, but was scheduled to testify at the November re-trial that never happened.)

Tyrer also testified that during the time he was campaign manager for Collins, he exchanged not one but several e-mail messages with John Day, using Senator Cohen's office e-mail system. He also testified that John Day may well have been the only reporter he corresponded with using that system.

No mention was made in court of the fact that it is a violation of FEC regulations to use Senate government office equipment for campaign purposes.

In a question by Watson to Tyrer, Watson alluded to a political consultant named Cara Brown, who had been approached by the Collins campaign during the primary, before Tyrer came on board. Since Tyrer professed ignorance of that situation, Watson did not pursue the matter. But this reference is significant to those who remember Collins' repeated indignant insistence that her campaign would not even THINK of hiring an outside researcher. Tyrer testified that all of Collins' opposition research had been done in-house, by campaign staffers.

And despite Collins' disbelief expressed during the campaign that Brennan would not know what the DSCC was doing in his behalf, it now appears she may well have been outside the loop herself. Lindstrom testified that he learned the Republican Senatorial Campaign Committee had hired a company called Jackson Alverez to do some independent investigations for Collins about the same time Norris was hired by the DSCC.

As Lindstrom explained on the witness stand, a mid-campaign ruling in 1996 by the U.S. Supreme Court suddenly changed the way political organizations could funnel money into campaigns. "Independent expenditures" such as ads or television commercials were ruled allowable as free speech, but only if there had been absolutely no collaboration or coordination between the political organization and the campaign it was seeking to support.

Lindstrom, in explaining why Norris was hired so late in the campaign, referred to a "cone of silence."

"We weren't allowed to talk to the campaign….I wasn't even allowed to talk to my own staff of three, you know, once an independent expenditure started. And the law would also require that any information or documents or any material we gleaned to produce ads or any other campaign material had to be self-generated by the committee that was running the ads. So, we couldn't tell the Brennan campaign, and we couldn't use anything that may have already been in existence. We had to generate a whole new report."

The fact that the DSCC could not even discuss the existence of a plan for independent expenditures created some tensions between the DSCC and the five Senate races it had targeted for independent expenditures that year, Lindstrom said.

"[I]n another state, Georgia, the day we decided [to do an independent expenditure in that race], I literally got a call from the staff researcher [on that campaign] who wanted to ask a question, and I had to say, 'On advice of counsel I am not permitted to speak with you,' and hung up. He didn't understand and he called me back three more times, and I had to repeat it every time. If anyone from the Brennan campaign called, I was instructed by the firm of Perkins, Tuey, Robert Bower, Judy Corley, Brian Svoboda, [to say] that I was not permitted to talk to anyone under any circumstances and must say 'on advice of counsel.' "

It was clear from Tyrer's testimony that he had no knowledge of the mid-course change in the campaign rules, or by extension of the RSCC's actions on Collins' behalf. And from Lindstrom's testimony, it was also clear that Brennan was right when he had insisted he knew nothing of the DSCC's activities in his campaign. Both had been intentionally kept in the dark.

Addressing the legal issue of malice, much was made of the last paragraph in Day's front-page article on Oct. 12, 1996:

"The way Brennan defuses, and Collins exploits, the private detective issue will likely shape the final three weeks of the race."

The thrust of the plaintiff's argument was that Day was not only trying to spice up a dull campaign which was at that point in a statistical dead heat, but that he was trying to artificially shift the outcome in Collins favor by whipping up a scandal out of the fact that someone was looking at public records. And he didn't care if he ruined the reputation of one of the most highly regarded Washington political researchers to do it.

The BDN is the only daily newspaper serving the northern two-thirds of the state. It was also the only daily paper in the state to present public record searches as an unsavory occupation. From the day after Day "broke" the "private investigator" story, the Portland Press Herald and Lewiston Sun-Journal, among others, debunked Day's portrayal, highlighted the common and acceptable practice of searching public records, and quoted Collins and Tyrer repeatedly admitting that the Collins campaign had also done opposition research on Brennan.

But the damage had been done.

Regular readers of the Northern [Aroostook] Democrat may remember that in 1997 I reported my research into the vote tallies in that race. From a dead heat in mid-October, Joe Brennan lost to Susan Collins by about 32,000 votes. All but about 1,500 of that vote differential turned up in the BDN circulation area.

The fact that the BDN, rather than face a second trial, was willing to settle out of court for an undisclosed price high enough to satisfy Norris' keen sense of justice, speaks volumes.

In the nearly half-page op-ed article authored by Norris, which the BDN ran on Oct. 23 as part of the libel settlement, Norris pointed out the danger that a monopoly newspaper can do when it deliberately distorts the truth during a critical phase of an election campaign.

"Who you vote for depends on the information available to you," Norris wrote in that article. "If you can't rely on the press to give you this information accurately and completely, it may be impossible for you to have the information you need to vote intelligently….Readers of this paper [the BDN], therefore, should make an extra effort to seek the truth from other sources."

The 2000 campaign season is already underway. Consider yourself forewarned.

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