Through Negotiations, Gingrich Narrowly Escapes Censure Bid

WASHINGTON — While most members of Congress were doing their Christmas shopping a month ago, House Speaker Newt Gingrich received an early--and unwelcome--gift.

On a cold Friday in December, Gingrich learned that investigators for the House Ethics Committee had found reason to believe that he had intentionally lied to the panel. It was the finding that he and his allies feared most, one that could have toppled him from the speakership.

But in negotiations that stretched through the next week, the Georgia Republican and his attorneys persuaded the ethics panel to drop a word--”knew”--from its statement of official findings.

That revision, although seemingly minor, wrought a dramatic change in the political complexion of the allegations against him. It allowed Gingrich to say he did not knowingly mislead the committee, even though he had submitted documents that were blatantly false.

The content of those critical negotiations was made public for the first time on Friday, providing a rare look at the inner workings of the Ethics Committee, one of the most secretive operations in Congress. It shows how Gingrich narrowly escaped far-harsher charges than those the panel ultimately approved, possibly saving his speakership in the process.

“If the committee had concluded that he had intentionally misled the committee, it would have been fatal,” said a source close to Gingrich. “That’s why intent was crucial.”

The extraordinary negotiations--plea bargaining, in essence--between Gingrich and ethics investigators was just one of the remarkable twists in a case that critics say has broken all the rules on how congressional ethics cases should be handled.

It has been marred by extraordinary political infighting in a committee that is traditionally a bastion of nonpartisanship. By the time it was over, the committee chairwoman had been accused of being a tool of the GOP leadership, the ranking Democrat had resigned under an ethical cloud of his own, and one Republican flatly refused to continue serving on the bitterly divided panel.

But remarkably, many members now say the process actually produced a fair result. Despite his earlier bitter complaints about Republican efforts to limit public hearings in the case, Rep. Vic Fazio (D-West Sacramento) concluded that “the product of the committee is a good one. It is a reflection of a consensus.”

For all the partisan theatrics surrounding the case for the last month, it was essentially settled in mid-December in the plea agreement that was kept officially secret until Friday. The details were divulged when the Ethics Committee’s special counsel, James M. Cole, presented his report on the probe and the panel accepted his recommendation that Gingrich “reimburse” the House $300,000 for the cost of the investigation and that he receive a formal reprimand.

Although such negotiations between the committee and the subject of an investigation are unusual, it is not unprecedented, according to Stanley Brand, a Washington lawyer who has worked with the committee.

The agreement was reached between Gingrich and the panel’s four-person investigative subcommittee, which conducted the probe of a college course the speaker taught with financial support from nonprofit foundations. A key issue was whether the course, Renewing American Civilization, was so political that it violated tax laws prohibiting the use of tax-exempt contributions for partisan purposes. Also at issue was whether Gingrich intended to mislead the committee when he submitted documents falsely claiming that GOPAC, his political action committee, had nothing to do with the course.

On Dec. 12, Cole proposed to the subcommittee members that they draft charges accusing Gingrich of violating tax laws and submitting information to the committee that he “knew or should have known” was inaccurate.

The first thing to be watered down was the tax charge: Cole apparently convinced the subcommittee’s two Democrats that the violation had occurred, but the panel’s Republicans balked. They argued that tax law was too murky and more properly the province of the Internal Revenue Service than the Ethics Committee.

Cole dropped the tax-violation charge, and the panel pressed the more bland claim that Gingrich “brought discredit to the House” by not seeking proper legal advice on the matter.

But the subcommittee was in agreement on Cole’s charge that Gingrich had intentionally submitted false information.

On Dec. 13, the panel wrote up the formal charges and informed Gingrich’s lawyers of their contents.

All sides were eager to bring the case to an end. If Gingrich fought the charges, it would require a trial-like proceeding that could last six months or more. The subcommittee offered to skip that stage if Gingrich would admit to the charges.

Negotiations ensued. A key sticking point was the implication that Gingrich had purposely lied to the committee.

His lawyers insisted on dropping the word “knew” from the charge. By so doing, the finding would state that Gingrich submitted information he “should have known” was inaccurate.

Cole, who acknowledged in his report that it would have been “difficult to prove” that the speaker lied intentionally “with a high degree of certainty,” accepted the change.

The question of intent was so crucial that just hours before issuing the speaker’s Dec. 21 statement admitting to the ethics charges, Gingrich’s advisors were thrown into a panic over the issue. At an early morning meeting with his lawyers, Gingrich aides protested when they saw that the Gingrich statement approved by Cole did not state explicitly that the violations were unintentional, according to a source who attended the meeting.

Unless the statement was amended, one Gingrich confidant said, “you might as well give it up.” His lawyer was persuaded to make a last-minute call to Cole, who approved an addition to the statement: “I did not intend to mislead the committee.”

Although the committee never formally tried that question, Cole made it clear in his report, and in Friday’s public hearing, that he remains deeply skeptical about the claim.

He cited a letter Gingrich wrote to the committee Oct. 31, after the panel asked him about the conflicting statements concerning GOPAC. Gingrich did not acknowledge any problem, Cole said.

“Well, that makes it tough for us to understand that, in fact, this is as innocent as some people would have us believe,” the special counsel said.

Cole underscored how much was at stake. If the subcommittee had found that Gingrich had deliberately lied, Cole said, he would have recommended that Gingrich be censured--a punishment that would have forced him to step down as speaker.

“I would be recommending censure all day long,” he said.