Air date: May 19, 1998
Secrets of an Independent Counsel
Produced and by Michael Kirk, Kenneth Levis, Rick Young
Peter J. Boyer, Correspondent
Written by Peter J. Boyer and Michael Kirk
Directed by Michael Kirk
Sen. SAM ERVIN, Chairman, Watergate Committee: The subcommittee will
come to order, and counsel will question the witness.
COUNSEL: Will you tell us, how and when did you first meet President
H.R. HALDEMAN: We met only very briefly and-
SAM DASH, Former Chief Counsel, Senate Watergate Committee: Madison, one
of the founders of the Constitution. He said, "If men were angels, we wouldn't
need government or checks and balance, but we're not angels." And the concept
of an Independent Counsel became necessary in the history of our country when
it became clear that a president, like Richard Nixon, being investigated by a
special prosecutor, had the power to fire that special prosecutor not on any
cause or merit, but because that special prosecutor was getting close to home
and proving the president's guilt.
Pres. RICHARD NIXON: I welcome this kind of examination and-
SAM DASH: And it occurred to us that there was something wrong with that
Pres. RICHARD NIXON: -whether or not their president's a crook-
SAM DASH: And we came up with this law.
Pres. RICHARD NIXON: Well, I'm not a crook. I've earned everything I've
NARRATOR: A generation ago, as the nation faced one of its darkest
political crises, we summoned a figure who would stand apart from the partisan
ARCHIBALD COX: The trail should be followed wherever it leads.
NARRATOR: -do his duty and then go home. The special prosecutor was so
admired, the Independent Counsel was written into law. Now, two decades later,
the nation is having second thoughts, real doubts about whether there should be
any more. The political generation now in power, which once exalted the
Independent Counsel, now seems determined to destroy it. The case against the
institution of the Independent Counsel is nearly won, and next year Congress is
likely to complete its undoing.
But one voice has been missing, that of the active prosecutors themselves.
Ordinarily constrained from speaking out, one member of this elite circle has
now decided to break the silence.
DONALD SMALTZ, Independent Counsel: The institution of the Independent
Counsel is in severe jeopardy, and the president and the attorney general has
authorized surrogates to publicly condemn the Independent Counsel as
incompetent, as a bunch of raving lunatics, as affiliated somehow with very
partisan, right-wing politics, which is very untrue. The statute doesn't have-
doesn't seem to have any real spokespersons for it, and there's a very
compelling case to be made for it. I have a voice. I have the experience and I
can at least recount that for you and for the rest of the American public that
watches your show.
WEATHER FORECASTER: -clouds and sunshine. Right now, we got more clouds
than sunshine, but apparently it's going to be an in-and-out situation in the
course of the day.
1st REPORTER: -state police are responding to an accident scene-
WEATHER FORECASTER: Oh, what a beautiful day out there.
2nd REPORTER: On the earnings front this morning, as expected-
1st COMMENTATOR: -so much mythology about Ken Starr. She's added the
boiler-plate phrase, "Ken Starr is out of control."
2nd COMMENTATOR: -the attorney general business, wield some power and do
some high-profile prosecuting-
SAM DONALDSON, ABC News: -this young lady to lie. That's a federal
crime. That's suborning perjury.
JAMES CARVILLE: These scuzzy, slimy tactics of this Independent Counsel,
who was put in there by a political hack to do the jobs of political hacks-
NARRATOR: Lord knows, all across America, people have made up their
minds about one particular Independent Counsel.
3rd COMMENTATOR: Ken Starr is out of control.
4th COMMENTATOR: Definitely abusing his power.
NARRATOR: Like a shrill civic Muzak, that story has become the
background noise of our daily lives.
SAM DONALDSON: -serious impeachment investigation-
NARRATOR: But beyond all the pundit babble and spin is that distant idea
that inspired the creation of the Independent Counsel law-
KENNETH STARR: Our job is to gather facts and to evaluate those facts
and to get at the truth.
NARRATOR: -and stands as a challenge to the four out there now.
KENNETH STARR: I have a very strong belief in facts and in truth.
NARRATOR: Behind each of these prosecutors is a story and, in a way, it
is all the same story: trying to uncover the truth about powerful people who,
being powerful, are best able to hide the truth.
KENNETH STARR: I cannot comment any further-
NARRATOR: This is that story, told by one of the very few who could tell
it, a sitting Independent Counsel, almost certainly one of the last. This story
begins in Washington, D.C., where he was sent to investigate the trouble
surrounding the secretary of agriculture.
Pres. BILL CLINTON: -my friend, Mike Espy of Mississippi. The Department
NARRATOR: President Clinton is announcing the newest member of the
Cabinet he designed to "look like America." Mississippi Congressman Mike Espy
becomes the first black to serve as agriculture secretary. But then, hints of
scandal, press reports of rides on private jets, football tickets and other
entertainment given to the agriculture secretary by the largest chicken
supplier in the country, Tyson Foods. And the papers even reported a charge
that Espy killed new rules meant to safeguard the nation's poultry supply.
Espy's rank as a member of the president's Cabinet meant that credible
allegations of wrongdoing should trigger the Independent Counsel law. Still, at
the Justice Department, there was resistance. Only a month after the naming of
Ken Starr, there were already those sensing the potential danger of
The decision fell to Bill Clinton's attorney general, Janet Reno. She'd come
into the job a firm believer in the law, so she decided to ask for an
Independent Counsel. Prosperous Los Angeles attorney, Donald Smaltz, answered
the call. He would either clear Secretary Espy's name or indict him.
DONALD SMALTZ: We had checked the newspaper reports, and I felt that
there wasn't going to be very much there and we would come in, examine the
facts and come to the decision that it would be inappropriate to indict anyone
in the case, close up our investigation and go home. I figured maybe six
months. That's what I told my wife, anyway, initially. It's three years, six
months, twenty days and forty-one hours, but who's counting?
NARRATOR: If there were an independent counsel's playbook, chapter one
would say "Look for a pattern of illegal behavior." So Smaltz starts at the
home of Tyson Foods, in Fayetteville, Arkansas. [www.pbs.org: Explore
independent counsel's playbook]
DONALD SMALTZ: I wanted to go to Arkansas to see what we could find out
about allegations against Secretary Espy that linked Espy with Tyson's, and
talked about gifts that Tyson's had given Espy. And so that was a place to
NARRATOR: Tyson Foods dominates the chicken-processing industry. Forty
million chickens a week move through the Tyson line. There are 21 plants in
Arkansas alone. The $6 billion empire is the province of one man, Don Tyson,
the son of a truck driver who moves easily along that fast lane connecting
agribusiness and high finance to politics. If figures an operation the size of
Tyson's is going to be involved in lots of legal action. Chapter two of the
prosecutor's playbook: Look for witnesses to possible corruption. And one of
the best places is in old lawsuit.
So Smaltz started in Fayetteville, where he met with the U.S. attorney.
DONALD SMALTZ: I asked him, I said, "Would you please tell me what
criminal cases you have pending against Tyson Foods?" And he looked at me, he
said, "Sure." And I said, "Okay." He said, "None." So then I said, "Okay, what
criminal investigations are pending?" He said, "We don't have any criminal
investigations." I then moved to civil cases filed, of which there were none,
or civil investigations. There were none.
PETER J. BOYER: Was that surprising to you?
DONALD SMALTZ: Sure, it surprised me. Are you kidding? I expected there
to be a number of at least investigations.
NARRATOR: It seemed astonishing that a company this size wouldn't have
at least some legal complaints. Plainly, there weren't any loose lips in Tyson
country. Smaltz figured, with all that slicing and dicing at Tyson's, there had
to be injuries, and perhaps some disgruntled employees who might have seen
corruption on the inspection line.
DONALD SMALTZ: Since you have [unintelligible] inspectors from
the USDA present in the plants, there might be people who had been injured who
believed they were unfairly compensated, through Workmen's Compensation or
whatever, who might be willing to tell us about what they knew about inspectors
or USDA operations in Tyson plants. So we attempted to check the Workmen's
Compensation records. We were told that we had [unintelligible] our
subpoena to give us access to all the records, which we did.
NARRATOR: But Smaltz says he was ambushed. As soon as he did subpoena
all the records, as he was told he must do, the subpoena was leaked to the
local press. He'd barely begun his investigation and the headlines attacked him
for overreaching. "Tyson Foods outraged by Smaltz's ongoing witch hunt," "Espy
probe becomes Tyson witch hunt"- the war on this independent counsel had
COMMENTATOR: -conducting a witch hunt.
ARCHIE SCHAFFER, Spokesperson, Tyson Foods: It appears to us that he's
on somewhat of a witch hunt.
DONALD SMALTZ: I'm not here for a witch hunt, but I am here-
NARRATOR: Tyson Foods also opened a Washington front, unleashing lawyers
with Beltway savvy to go after Smaltz.
TOM GREEN, Attorney, Tyson Foods: We climbed all over him, initially, by
just never missing an opportunity to berate him and to tell him that he was,
you know, way outside the playing field. He was, like, three dug-outs, you
know, over. He was just out of control.
NARRATOR: "Out of control," a term that Smaltz would hear again. He
feared that the bad publicity, a vivid display of Tyson muscle, would further
inhibit potential witnesses, but prosecutors have ways of finding people who
DONALD SMALTZ: The question was who was going to know about what Espy
allegedly did or did not do with Tyson. On those types of situations, you know,
the best place of information, sources of information, are usually ex-wives, if
they'll talk to you, or chauffeurs, ex-chauffeurs, or airplane pilots.
NARRATOR: As it happens, Tyson had 10 pilots flying a small squadron of
JOE HENRICKSON, Former Tyson Pilot: When you're trying to sell someone
millions of dollars of chicken at a time, you try to impress them. You'll send
an airplane to their airport and pick them up and take them right to our
hangar. And they walk in, and there's a big wet bar in there, and couches. But
you're really- you're impressing them. Everything you do- that you're doing,
you spend top dollar on it.
NARRATOR: After 15 years, Joe Henrickson had become Tyson's number two
pilot. But when he disputed a management decision by the chief pilot,
Henrickson says, he was promptly fired.
DONALD SMALTZ: We didn't find any ex-wives who would talk to us and we
didn't find any former chauffeurs, but there was a former pilot who had had a
public dispute that ripened into litigation with Tyson, and he had sued
JOE HENRICKSON: That's right.
PETER J. BOYER: Sued on what ground?
JOE HENRICKSON: Well, I- on wrongful termination.
NARRATOR: But Henrickson began to worry that Tyson would not abide a
legal assault from a former employee.
JOE HENRICKSON: Our attorney, at the time, told us to come down to the
office one day, and she had something to talk to us about. So we took the kids
with us and sat them down, and she said, "No, the kids need to go outside. They
don't need to listen to this." So we sat down, and she sat down and told us
that she'd been up- she was doing some checking on me, and she'd been up to the
corporate office and she'd met with, I believe she said, four or five people,
that had told her that- you know, that they would swear in a court of law that
I'd use the airplane- if I didn't drop the lawsuit against them, they were
going to say I'd used the airplane for smuggling drugs with. And I couldn't
believe this, you know?
MARY ANN HENRICKSON: We just sat there.
JOE HENRICKSON: I mean, when you get a reputation like that in the
flying business, you know, you're not going to be doing a lot of flying for
MARY ANN HENRICKSON: She said, "You'll be homeless. You'll be penniless.
You'll be broken." You know, "You won't have any money left, trying to defend
yourself. Joe could do jail time."
JOE HENRICKSON: Yeah, she told us-
MARY ANN HENRICKSON: We're sitting here in chairs, looking at each other
with our mouths open. We can't believe it.
JOE HENRICKSON: But she also related, too, that not only would I not fly
in Arkansas, I would not fly in the United States ever again, either.
MARY ANN HENRICKSON: Period. We just said, "We've got to go home. We've
got to go home." And we went home and we sat on the bed and we just looked at
each other. This happens in the movies. This doesn't happen to people.
JOE HENRICKSON: That's true.
MARY ANN HENRICKSON: We didn't know what to do. We did not know what to
JOE HENRICKSON: So I called the FBI in Little Rock, and I made a report
to an agent there.
MARY ANN HENRICKSON: That's right. I mean, we were- we didn't know what
to do. I was afraid that, you know, I'd go to college one morning and have
drugs in my car. I didn't know what could happen to us. We were afraid.
NARRATOR: The Henricksons waited to hear from the FBI. Then they finally
got a call.
DONALD SMALTZ: We called them Sunday evening. The next day, he showed up
and sat in the room while we finished our interview with somebody else. Then we
got to Mr. Henrickson.
JOE HENRICKSON: I cooled my heels in this little office for about 30
minutes, and finally, they take me in here, introduce me to Donald Smaltz. And
we sat down and he started asking me questions about some fellow named Mike
Espy, and has I ever seen him. I said, "I've never even heard of him, let alone
seen him." You know, "I have no idea who he is." And I asked him was this about
the threat I perceived from the attorney, and they didn't know anything about
that. And they said, "No, we located you through lawsuits that people had filed
against Tyson over the last year or two, and we contacted you through your
attorney." And I said, "Okay." And then we proceeded. They asked me questions
about Mike Espy, and i said, "I don't know anything about Mike Espy."
DONALD SMALTZ: We were interested if he had ever transported Secretary
Espy around in a Tyson vehicle, and if so, where. And it turned out that there
was no such information that this individual had.
JOE HENRICKSON: It was a dry hole, at that point. He didn't- I didn't
have anything to tell him.
PETER J. BOYER: What changed it?
JOE HENRICKSON: Well, they asked me if I'd ever seen anything else that
I thought was illegal or strange. And the only thing I said was, you know, the
times I'd seen when we'd taken envelopes of money to- that were to be delivered
to the governor. And that- I mean, Smaltz- I remember because he was sitting
across the table from me, turned away. And then he turned around. It was like
his jaw almost fell open, and, "What?" you know?
DONALD SMALTZ: He dropped a revelation on us that we didn't expect to
hear, and we heard it so far near the tail end of the interview that it was
difficult to comprehend, at the time.
JOE HENRICKSON: It was basically one of these, you know, the ears went
DONALD SMALTZ: This is the first we ever heard of that, and we're trying
to figure out what to do with it. And it was relevant to our- to us, from the
standpoint that if Tyson- if this was a practice and a pattern that Tyson had,
we wanted to investigate to see whether or not it had ever impacted or reached
any of the secretaries of agriculture, including Mr. Espy.
NARRATOR: It had the smell of pay dirt. If Henrickson's story about
delivering envelopes stuffed with hundred-dollar bills to Governor Clinton were
true, Smaltz could begin to show a pattern of influence-buying by Tyson
JOE HENRICKSON: We'd take them, hold them up into the direct light, and
you could see the hundred-dollar bills in there.
PETER J. BOYER: Were you ever personally handed an envelope intended for
JOE HENRICKSON: Yes.
PETER J. BOYER: By a Tyson executive?
JOE HENRICKSON: Yes.
PETER J. BOYER: Same case, a plain envelope with cash inside?
JOE HENRICKSON: Yes. That's correct.
PETER J. BOYER: And again, how'd you know cash was in it?
JOE HENRICKSON: Same way, looked- you could see it through the light.
PETER J. BOYER: And what were you told?
JOE HENRICKSON: I wasn't told anything. It was just to be delivered to
Little Rock for the governor.
NARRATOR: Smaltz believed Henrickson and tried to corroborate his story
with other pilots, but he didn't get far. The unwritten rules of company-town
life hold that you don't bad mouth the man who writes the checks. Smaltz says
he encountered a wall of silence within air Tyson.
DONALD SMALTZ: Arkansas is a relatively small community. If an
individual falls out of favor with the power structures that be, he or she can
lose, and often loses, their ability to work in the community, particularly at
the job of their choice.
TOM GREEN, Attorney, Tyson Foods: A number of people-
NARRATOR: Tyson's lawyer insists the absence of witnesses proves
Henrickson's story isn't true.
TOM GREEN: That accusation was easily disproved and should have been
dismissed out of hand. The guy never flew an airplane by himself. There was
always another pilot, okay? There were plenty of people at the airfield on both
ends. I mean, there are just a bunch of people who would have been in a
position to verify that accusation. You could go out, you could find these
people, you could talk to them. You would know in days, if not hours, that this
was preposterous, okay? But that's- you know, that's a notion that doesn't come
easily to Mr. Smaltz.
DONALD SMALTZ: It's not a question you can answer just by picking up the
phone in a two-hour inquiry. There's more to it than that. The federal
government often encounters efforts to influence the testimony of witnesses.
I've always felt that there was an attempt, sometimes not so subtly, but never
through violence, to influence the testimony of some of the witnesses in this-
in our investigation.
NARRATOR: Donald Smaltz had only been on the job 90 days, but he had
already sent up an alert to Don Tyson and now to the president of the United
States. If, in the interest of pursuing Espy, he indicted Tyson for giving
money to Governor Clinton, the president would be vulnerable, too.
TOM GREEN: This episode with the pilots was the clearest evidence that
he had- you know, his radar had kind of latched onto President Clinton.
DONALD SMALTZ: We were not investigating the president, but if Tyson did
give cash to public officials, that would be relevant to our investigation.
NARRATOR: Smaltz's investigation had made allies of Tyson and the
Rep. TOM LANTOS, (D), California: [Congressional hearing] You
remind me of Kurt Waldheim. He conveniently forgot he was a Nazi.
DONALD SMALTZ: I'm sorry? Are you suggesting that I-
Rep. TOM LANTOS: No, allow me to finish it. Allow me to-
DONALD SMALTZ: Well, let me tell you, I take umbrage at being
Rep. TOM LANTOS: Allow me to finish.
DONALD SMALTZ: -with anyone affiliated with the Nazi Party, sir.
Rep. TOM LANTOS: No-
JAMES CARVILLE: [NBC "Meet the Press"] I'll tell you one thing.
For a man that has the power that he does, he's not a- he might not be a Nazi,
but he's a pretty big liar.
MARY MATALIN: You want to talk about-
JAMES CARVILLE: I'll tell you that right now.
MARY MATALIN: -obstruction of justice?
JAMES CARVILLE: You know, he's a pretty big liar.
MARY MATALIN: You want to talk about conspiracy theories?
JAMES CARVILLE: He's a nickel-dime guy with-
MARY MATALIN: How about the president's personal-
JAMES CARVILLE: -a bunch of nickel-dime charges.
MARY MATALIN: -lawyer, David Kendall-
NARRATOR: Needing cover, Smaltz asked Attorney General Janet Reno for
permission to expand his investigation to include the "cash to Clinton"
allegations. Under a strict reading of the law, he needed what is known as an
expansion of his jurisdictional charter.
DONALD SMALTZ: So I sent a letter to the attorney general, seeking to
expand my jurisdiction to specifically include Tyson and Tyson-related
activities, and she refused to either expand my jurisdiction or refer the
matters that we were looking at as a related matter.
NARRATOR: That surprise you?
DONALD SMALTZ: It did, yeah. It did.
NARRATOR: Smaltz had assumed the attorney general was on his side, but
what he didn't know was that there was a secret battle against the independent
counsels within the Justice Department that was beginning to sway the attorney
general. Her career lawyers were offended by the very premise of an independent
counsel, that only an outsider could avoid a conflict of interest. And the
politically oriented at Justice echoed White House worries that Smaltz seemed
to be on a path that pointed straight to the president. And while Reno was
considering Smaltz's request, Tyson's public relations and lobbying efforts
were going full-bore against him. In the end, the attorney general denied
DONALD SMALTZ: My sense was that Tyson was putting a lot of pressure on
the Justice Department. They had gotten their Congressman, a fellow by the name
of Dickey, to come to the Justice Department and to seek to curtail my
investigation. But it had a very chilling effect on our ability to bring people
forward and get them to cooperate.
First of all, we had Dickey running around and saying I'm crazy. We had the
Tyson publicity machine running full-stroke, saying that we're out of control.
Now we have the attorney general allegedly saying I can't investigate anything
about Tyson, all right? Now, you add those things up and you try and bring
witnesses forward, it doesn't work. I mean, you're seeing some of the same
thing today, when if you can demonize the independent counsel, the reluctance
of people to come forward and give evidence, as is their obligation and duty,
is going to be chilled.
NARRATOR: It began to occur to Smaltz that the effort to kill his
investigation had allies in the Justice Department itself. But he was defiant.
In March of 1995, despite the attorney general's orders, Smaltz issued a stream
TOM GREEN: Every subject matter imaginable came up in the Tyson case,
which have absolutely no relevance to his jurisdiction. Here's a subpoena that
asks for "X." This has got nothing to do- here's the order setting up this
independent counsel. This subpoena has got nothing to do with the subject
matter of this order. You couldn't- you couldn't torture a connection out of
NARRATOR: And then Smaltz waved his biggest red flag. He called the
pilot, Joe Henrickson, before the grand jury. To his detractors, this was proof
that Smaltz was bent on going after the president and Tyson Foods. Tom Green,
Tyson's lawyer, believed that Smaltz had to be stopped.
TOM GREEN: We wrote a very tough letter to the attorney general, saying
that he was just out of control, in essence, and outside his territorial
jurisdiction. And I cited a number of examples, of which the pilots was one of
them. And I asked her to exercise her authority to remove Mr. Smaltz because he
was far out on the fringe, in my view. [www.pbs.org: Read the letter]
PETER J. BOYER: You wanted him fired?
TOM GREEN: Pardon?
PETER J. BOYER: You wanted him fired.
TOM GREEN: Removed.
NARRATOR: At the Justice Department, there was sympathy for Tyson's
argument. Top Justice lawyers were dismayed by Smaltz's open defiance of Reno's
order not to pursue the broader investigation of Tyson. Smaltz says the
attorney general took the extraordinary step of insisting that he answer the
charges of Tyson's attorney.
DONALD SMALTZ: I refused to do that. I don't send defense counsel
letters and I'm sure as hell not going to report to the attorney general about
accusations made by defense counsel when I know that they are without
foundation in fact and they are politically motivated, politically inspired, in
an effort to kill the investigation. I'm not going to play that ball game. So I
refused to do that.
I just became angry. I felt that they can say what they're going to say and
there's no sense trying to respond. I was personally determined that I was not
going to let these people, no matter what they said or what they did, run me
out of the town.
NARRATOR: A confrontation was building, Justice insisting that Smaltz
directly answer the Tyson letter, Smaltz refusing. He said he would only
discuss the Tyson allegations one on one with the attorney general.
DONALD SMALTZ: We arrived about 10 minutes early, and I walked into the
anteroom to the attorney general's office and, lo and behold, I saw a whole
covey of people. It was the attorney general, the deputy attorney general, the
assistant attorney general in charge of the criminal division, the head of
public integrity and the deputy head of public integrity. I was trying to take
a very accommodating tone, so after we sat down, I said, "Let me walk you
through how our investigation got to this point, this point and this point. And
let me show you the steps and the evidence that we accumulated that caused us
to walk this far down this road. And then you decide. You were a prosecutor."
But she wouldn't look at it, and she wouldn't even touch it. In fact, she
caused it to be shoved back to me, like this- both of them.
PETER J. BOYER: She didn't-
DONALD SMALTZ: She didn't want to see them, okay? So it seemed apparent
to me that we sure as hell were not there to talk about the facts, and that's
what I wanted to talk about with her. I was angry. I was angry. I was angry
that there could be that much concentration of power over this simple issue.
NARRATOR: Smaltz was ordered to turn over his files about the Tyson
"cash to Clinton" story. The Justice Department told Smaltz it would continue
the investigation itself. Attorney General Reno declined our invitation to be
interviewed. So did every other top official in the Justice Department. They
offered instead Reno's former deputy, Paul Fishman.
PAUL FISHMAN, Former Associate Deputy Attorney General: I'm not going to
characterize what the department did or didn't do. I will say that I'm
confident that the information was fully and fairly evaluated by the
PETER J. BOYER: If it did investigate, wouldn't the pilot, Joe
Henrickson, have at some point been contacted by some representative of the
Department of Justice?
PAUL FISHMAN: I can't comment.
NARRATOR: Joe Henrickson has never been contacted by the Justice
PETER J. BOYER: Do you know what Justice has done with that piece of the
PAUL FISHMAN: To my knowledge, they haven't done anything with it.
PETER J. BOYER: So regarding Henrickson-
DONALD SMALTZ: That door was slammed shut.
NARRATOR: For the Tyson team, mission accomplished.
PETER J. BOYER: Did you go to war with him, and did it work?
TOM GREEN: Well, sure you go to war with him. I mean, here's a guy who,
you know, wants to conduct an investigation, bring extraordinarily serious
charges against your client or clients and, essentially, wants to, you know,
see you punished. And if you believe that all of that is unfair and unwarranted
and unnecessary, yeah, you go to war with him.
DONALD SMALTZ: I called my wife at the end of the meeting, when we got
back here, and I told her- she had always been concerned that I was in physical
danger. I never really thought that, but I said, "You know, Lo," I said, "for
the first time since I've been back here, I'm afraid."
PETER J. BOYER: Afraid?
DONALD SMALTZ: Not for me. I was afraid some organization could have
that much influence with the United States government to cause the attorney
general, the deputy attorney general, the assistant attorney general, the
attorney general in charge of the criminal division, the assistant attorney
general, the head of public integrity and the deputy - six of them - to sit
down at a meeting- all we're doing is discussing my investigation. I mean,
there are much greater forces and needs for the talent at the time than my
little, old investigation.
PETER J. BOYER: So at that moment, for that time, that particular
battle, Don Tyson had won.
DONALD SMALTZ: You could say that.
NARRATOR: At the independent counsel's office in Alexandria, Virginia,
Smaltz regrouped. Now he was at war with his targets and with the Justice
Department. If Janet Reno wouldn't let him go after Tyson Foods, the alleged
giver of the gratuities, Smaltz would stick to Mike Espy, the alleged taker.
And that sent him to Espy's home state of Mississippi.
The Mississippi Delta: The alluvial spill from the Mississippi River has made
it the best farm land in America. But even here, the farmers look for help and
get plenty of it from Uncle Sam. Among the most prized holdings in these parts
are government subsidy payments, and some farmers have become very shrewd at
CHARLES HULL, Former State Executive Director, ASCS: Back in the '70s,
we had a whole lot of big operations that were earning astronomical payments-
half a million dollars and whatever- you know, one individual. Here's a guy
owns a big mansion or whatever, and got five Rolls-Royces and three Mercedes,
and he's earning a half million dollars of the taxpayers' money. So they passed
a law and said no entity could earn more than $50,000 in a payment year. And
that's when the tricks began to be played.
RON BLACKLEY, Greenville, MS: The Department of Agriculture changes
regulations so fast that even the local office that deals with the farmer, some
time they don't even have a chance to read all of them. And I had the God-given
ability to read through this and deal with the farmers, saying, "If you go this
way, in three years, this is what," you know, "your operation's going to look
like. If you go this way, it'll look like this."
NARRATOR: Ron Blackley had a reputation as a fixer, guiding farmers
through the maze of the agricultural bureaucracy. One of Blackley's clients was
a cotton farmer named Keith Mitchell. Mitchell wanted more than his $50,000
subsidy, so he turned to Ron Blackley, who contrived a scheme. Here's how it
worked. Mitchell divided his farm, on paper, into six separate operations. He
kept one for himself. He owned two more, one with each of his sons, and that
was three, his legal limit. And then he created three more. Each son owned one
individually, and they owned one together. So out of one family farm, Keith
Mitchell created six. In the farm subsidy game, this scheme is know as a
"Mississippi Christmas tree."
CHARLES HULL: They were trying to earn five or six payments, maybe
$350,000 or $400,000 a year it would qualify for if you had enough entities to
RON BLACKLEY: At the time, and what I had seen and what the policy was
for those payment limitations at the time, Mr. Mitchell complied with the
policy and met every determination necessary, to my knowledge.
CHARLES HULL: It was as bogus as any plan I've ever reviewed. I mean,
you know, it's just- it's obvious.
NARRATOR: The state review board rejected Mitchell's plan. Mitchell and
his fixer, Ron Blackley, appealed.
CHARLES HULL: And they was turned down again. And they were given appeal
rights to the Washington level. That's automatic.
PETER J. BOYER: What happened?
CHARLES HULL: It was turned down there.
PETER J. BOYER: That's it?
CHARLES HULL: That's it. You'd think that's the end of the line. In
fact, the correspondence that came back - we got a copy of it - "You have," you
know, "expended your appeal rights." Case is over.
NARRATOR: And then one day Arkansas's Bill Clinton was elected
president. And he appointed Mississippi Congressman Mike Espy as agriculture
secretary, and Mike Espy appointed his old friend and former aide, Ron
Blackley, as his chief of staff. Near the top of the agenda at the new
Agriculture Department was to tend to some business back home.
CHARLES HULL: I got my notice that I was no longer employed. And some
time shortly after that, all of those cases that Mr. Blackley had sit in on
[unintelligible] state office and were turned down, and were turned down
at the Washington level, were reopened and were overturned and approved.
NARRATOR: As chief of staff, Blackley asked for yet another review of
the Mitchell subsidy request. As chief of staff, he got it. This time, Keith
Mitchell finally got the additional subsidies he'd been denied. And he got
CHARLES HULL: Mr. Mitchell was appointed to the state committee. He
became a member of the state committee.
PETER J. BOYER: Mitchell actually was appointed to the committee
CHARLES HULL: That's correct. That's correct. Quite fantastic,
NARRATOR: And that's probably where the story would have ended, but for
Donald Smaltz, the story about farmer Mitchell and his remarkable change of
fortune offered a chance to get information about Mike Espy.
DONALD SMALTZ: We regarded Ron Blackley as a link in the chain. I mean,
he was the secretary's right-hand man. He was the second most powerful person
in USDA. His official job description describes him as the "alter ego" of the
secretary. He'd been somebody who had been with the secretary since the
secretary had been a Congressman back in Mississippi.
NARRATOR: Here in Greenville, Smaltz turned his sights on Mitchell and
his "Mississippi Christmas tree" as a way of getting at Ron Blackley. But
Smaltz had the same problem he faced with Tyson: the Department of Justice.
PAUL FISHMAN, Former Associate Deputy Attorney General: It was the
considered judgment of the prosecutors in the department who reviewed the
evidence that Mr. Smaltz had presented that the matter was not sufficiently
related to what Mr. Smaltz was already doing. And the department believed that
since it was outside the scope of Mr. Smaltz's jurisdiction, that it was
appropriately the department's role to investigate those matters.
NARRATOR: That's "Justice-speak" for "out of control." In fact, the
Justice Department had already considered the cases of Mitchell and Blackley
and had decided not to prosecute.
DONALD SMALTZ: Justice had not pressed forward with the prosecution. It
had earlier declined to prosecute.
PETER J. BOYER: The Justice Department doesn't want to go forward. They
don't want you to, either.
DONALD SMALTZ: That's right, and they gave us no indication that if we
didn't go forward, that they would. And we thought it was important that this
avenue be explored because it seemed to us to have direct impact on our
investigation of the secretary. So we decided to file an application with the
NARRATOR: The Special Division- three federal judges that oversee the
entire independent counsel process. Smaltz tried a bold gambit.
DONALD SMALTZ: Go to the court directly, by-pass Justice. You could go
either way. You could either go to Justice and they could agree to refer it to
you as a related matter, or you could go to the court directly.
NARRATOR: In a rare head-to-head legal battle with an independent
counsel, the Justice Department tried to stop Smaltz.
PAUL FISHMAN: The department believes, in order for the Independent
Counsel Act to be Constitutional, the gatekeeper for an independent counsel's
jurisdiction must be the attorney general of the United States. And the
department took the position with respect to Mr. Smaltz's application that even
though the independent counsel statute says that Mr. Smaltz can go to the court
to get this jurisdiction to get something declared related, if the attorney
general doesn't agree, then you have violated the principle of separation of
powers because it is the attorney general whose power is being, essentially,
given up to the independent counsel.
DONALD SMALTZ: You know, at the time the statute was passed in 1994,
there had to be testimony in support of it. And the year before, in March of
'93, the attorney general, you know, went up on the Hill, and she supported
reenactment of the statute-
JANET RENO, Attorney General: [Congressional hearing] There is an
DONALD SMALTZ: -and she did so vigorously.
JANET RENO: -executive branch officials are to be investigated by the
department and the attorney general. The attorney general serves at the
pleasure of the president. It is absolutely essential for the public to have
confidence in the system, and you cannot do that when there is conflict or an
appearance of conflict in the person who is, in effect, the chief prosecutor.
There is an inherent conflict here, and I think that that's why this act is so
DONALD SMALTZ: At the time it was reenacted, the president of the United
States, William Jefferson Clinton, called it the "cornerstone for the
foundation of trust between the citizen and the government," all right? And it
is. I agree with those statements. But the problem is the attorney general
doesn't like the way it's- and the administration doesn't like the way it's
NARRATOR: The federal judges ruled in Smaltz's favor. The Justice
Department's interference had caused a nine-month delay. Now, armed with the
precedent-setting decision, Smaltz turned again to Mississippi. The next
chapter of the prosecutor's playbook: To get the big guy, you put the squeeze
on the little guy.
DONALD SMALTZ: When the division said it was a related matter, it not
only extended to the Blackley matter, it also extended to the Mitchell
PHIL MANSOUR, Attorney for Keith Mitchell, Sr.: My biggest dismay with
the whole ordeal is that this investigation, which is supposed to be of one
person, Mike Espy, now somehow has turned itself and expanded itself to include
a small farmer in Mississippi, who's probably been to Washington, D.C., maybe
twice in his life before this happened. And how that is related to the Espy
investigation will always be a mystery to me.
NARRATOR: Smaltz shifted into full prosecutor mode. The FBI paid a visit
to farmer Mitchell.
PHIL MANSOUR: He got a phone call, said, "Mr. Mitchell, we'd like to
come to your house and talk to you about Mike Espy." He had no reason not to
talk to them, and he welcomed them into his home freely. At some point, my
understanding is that that conversation went from Mike Espy, and at some point
during the questioning, turned to Keith Mitchell.
At the same time, Mr. Mitchell was being interviewed at his home by the two
agents, his son, Keith Mitchell, Jr., was approached by federal agents in
Jackson. They scared the hell out of him. I mean, without- that should go
without saying. And he called his father, and called him at home. And actually,
the agents were still there in his home when he called. Told him, "There's two
agents here wanting to talk to me." You know, "What's this about?" basically.
And then he became extremely distraught, emotionally upset. I think he even
broke down in tears a number of times during that visit.
DONALD SMALTZ: We prosecuted Mitchell because Mitchell used his family,
because his family did it- participated willingly, because his family and their
business profited. I mean, they stole almost three quarters of a million
dollars. Mitchell was linked to Blackley, and Blackley was joined at the hip
with Espy. And Mitchell got prosecuted.
PHIL MANSOUR: I don't think the significance of his wrongdoing in any
way could justify the pain that he's been forced to endure.
DONALD SMALTZ: The question should be "Did his client violate the law?
Did his client really rip off the government," okay? "Was the farm plan
fraudulent?" The answer to those questions is "Yes," because Mitchell pleaded
guilty to that, 5M pleaded guilty to the charges, okay? So they've admitted to
ripping off the government for three quarters of a million dollars. Why should
they expect not to be prosecuted?
NARRATOR: Smaltz got a guilty plea from Mitchell. Now he could use it
like a stick against Blackley.
RON BLACKLEY, Greenville, MS: I always felt that I would be indicted
just to squeeze me to come up with a lie on Espy.
NARRATOR: And did they squeeze you?
RON BLACKLEY: Yeah, they squeezed me. My son was taken before the grand
jury twice, was told that he was subject to perjury. You know, I sit here today
and- not knowing whether they're going to file an indictment on him on perjury
or not. But they would use that to pressure me consistently to cooperate. And
for them, "cooperate" is "lie."
DONALD SMALTZ: Blackley's charge that we somehow wanted him to lie is
absolutely outrageous. We prosecute people for lying. We're not in the business
of unlawfully convicting people, and we sure as hell aren't in the business of
manufacturing false testimony. We follow the facts wherever they take us.
NARRATOR: Why was Don Smaltz working so hard to get Ron Blackley? Well,
Espy and Blackley took over at Agriculture at a crucial moment for Tyson Foods.
The department had been preparing tough new regulations for handling poultry.
The planned regulations would cost Tyson Foods nearly $40 million a year to
implement. Then something happened. One day, Tyson's lobbyist paid a visit to
Mike Espy. The next day, Agriculture staffers say, they were told by Ron
Blackley to shelve the proposed new poultry regulations.
WILSON HORNE, Former Agriculture Department Official: [CBS News]
The message was very clear.
CBS NEWS REPORTER: What was that?
WILSON HORNE: That we were to stop working on the development of any new
CBS NEWS REPORTER: [voice-over] Horne said the order came
directly from Espy's then chief of staff.
[to Horne] Did you think he was talking for the secretary?
WILSON HORNE: Oh, yes. Absolutely.
NARRATOR: Was there a connection between Espy's meeting with Tyson's
envoy and the killing of the new regulations? In Smaltz's view, one man might
know, and that's why Don Smaltz needed Ron Blackley to talk.
RON BLACKLEY: There was an allegation that is untrue. After it was known
to me who had made the allegation, my attorney wrote a letter to this person,
said, "If you make this statement again, expect us to file a libel suit against
NARRATOR: Smaltz had deep doubts about Blackley's denial, but without
him, Smaltz would have trouble making the big case on poultry regulations. So
Smaltz turned to the next chapter of the prosecutor's playbook: Make your case
on charges that will stick and hope that the prospect of prison will loosen
mute tongues. It's known as "flipping" the witness. And so Smaltz convicted
Blackley of making false statements.
PETER J. BOYER: If you'd had the goods, Ron Blackley said, you would
have prosecuted on that. You plainly didn't have the goods, so you get him on
some technicality he didn't even- you know, about false statements.
DONALD SMALTZ: Lying to the government on three separate occasions to
three different entities is hardly a technicality. It's a very serious offense.
And lying by government officials is doubly serious. These are people who are
given the public trust. These are people who are given millions of dollars of
programs to administer. These are people who are supposed to be absolutely
NARRATOR: For Donald Smaltz, it is a reckoning day. Mike Espy has just
DONALD SMALTZ: [press conference] This morning a District of
Columbia grand jury returned a 39-count indictment against former Secretary of
Agriculture Michael Alphonso Espy.
NARRATOR: Smaltz indicted Espy on the very charges he was sent out to
investigate nearly four years ago: accepting gifts. And Tyson Foods finally
admitted giving gifts.
DONALD SMALTZ: Don Tyson admitted unequivocally that his company, during
his tenure, committed federal felonies, okay? And he admitted that they gave at
least that $12,000. And it's not the amount of money, it's the corruption in
the system. The fact that it was given in express violation of the law, with
the intent to curry favor and favored treatment- that is the vice.
TOM GREEN, Attorney, Tyson Foods: Tyson Foods ultimately pled guilty to
one count of making a gratuity because there was no prospect that this
investigation was going to end any time soon. And we should not lose sight of
the fact that Tyson Foods is a major, major corporation. Its business is to
conduct business. And I think management felt very strongly that if it could
get the proper concessions in return for a guilty plea, they'd be willing to do
it. And so the company agreed to enter a plea, as I said, to one count of
giving a gratuity, but the company received some substantial concessions in
NARRATOR: Such as?
TOM GREEN: All of these various avenues that Smaltz still had open and
that were just hanging out there, in which he or any of his colleagues could
elect to pursue for, you know, the next four years, were wrapped up, closed
down, terminated without action, ended, over with, the end, final act.
DONALD SMALTZ: [press conference] The indictment charged Mr. Espy
with having accepted things of value from-
NARRATOR: The final act for Donald Smaltz and Mike Espy will play out in
a Washington courtroom. Smaltz is still hoping that Ron Blackley, facing 27
months in federal prison, will by that time decide to become a witness for the
prosecution. Donald Smaltz's culminating act as an independent counsel will be
to prosecute Mike Espy for accepting a few football tickets and some airplane
rides and, of course, making false statements. Smaltz sees no diminishment in
DONALD SMALTZ: The gratuity statute and its vigorous enforcement is
something that's very fundamental to the integrity of the government process. I
mean, to the extent that the public perceives that these huge agribusinesses or
huge corporations can dole out gifts to the regulators and the legislators with
impunity, they're going to lack any confidence in the government process, and
it's going to be- after a while, the public will perceive that government is
for sale to the highest giver. [www.pbs.org: Read Smaltz's interview]
TOM GREEN: There was a philosophical difference here about the kinds of
contact that businessmen or Americans can have with, you know, elected
officials. You can't have a country where, you know, the public figures and the
public office holders are just simply walled off from society. I mean, that
makes no sense at all. You know, someone calls you up and says, "Can I go to a
ball game?" and you go to the ball game with a bunch of other people and you
don't discuss business, you know, and the biggest thing that happens is the guy
gets a hot dog with some mustard on it, and then you all go home- if you feel
that has to be punished, ultimately, do you have to bring an independent
counsel in with a baseball bat and crank up the criminal law, you know, and
hang the guy? I mean- I mean, really. That's what we're talking about.
NARRATOR: Donald Smaltz's reading of his commission allows for no wiggle
room. He sees his job clearly: Seek the truth, follow the law, prosecute the
guilty, regardless of the consequences. But our current political culture is
not exactly a bull market for rigid insistence on moral absolutes. Donald
Smaltz may be a man out of his time, embodying an institution that is out of
DONALD SMALTZ: It's true the independent counsel statute will probably
not be reenacted, and that's unfortunate for the republic because who now will
investigate the allegations of public corruption? And if not the independent
counsel, then who, I ask you? Then who?
NARRATOR: Janet Reno once worried about the inherent conflict of the
Justice Department investigating her fellow Cabinet members, or even her boss,
the president. Seven times in her tenure, most recently last week, the
independent counsel law resolved that conflict by allowing her to seek the
appointment of an outside prosecutor. In one notable exception, the
presidential campaign finance scandal, she has resisted the call for an
independent counsel, leaving the matter in the hands of the Department of
Justice. That investigation has lurched along for nearly 18 months, and there
is doubt as to whether exoneration from such an in-house inquiry would ever
quite ring true.
SAM DASH, Former Chief Counsel, Senate Watergate Committee: If you don't
have an independent counsel, what's the alternative? There have been a number
of cases that have shown that if the attorney general did, in fact, assign
somebody to do it at Justice, and cleared the president, practically every
newspaper in the country would have an editorial about a whitewash or cover-up.
No one would accept it. There would be screeching all over this country about
"cover-up" and "whitewash."
And so the value of the independent counsel statute, with all its flaws- no
statute is perfect. It's a human-made piece of law. But with all its flaws,
it's the only way and the only alternative, when serious charges are brought
against the president or a high executive official, for it to be investigated
and still get the confidence of the public. [www.pbs.org: Read Dash's full
1st VOICE: Ken Starr has gone too far.
2nd VOICE: -over the top-
3rd VOICE: -a right-wing conspiracy to take this guy-
NARRATOR: But public confidence is precisely what the office of the
independent counsel is desperately lacking just now. After existing more or
less unnoticed for two decades, the office has now been exposed to public view
in a manner contrived to feature its flaws.
JAMES CARVILLE: This is a scuzzy investigation, threatening parents and
that kind of foolishness.
NARRATOR: Such practices as squeezing the witness by indicting a son or
JAMES CARVILLE: There's going to be a war.
NARRATOR: -makes the independent counsel seem just another combatant in
the unending war that has become the Washington norm.
4th VOICE: It's time to put up or shut up.
5th VOICE: Get it over with!
6th VOICE: -and stop this kind of thing.
NARRATOR: And if the office is undone next year, it may not be so much
the measure of a failed idea, but a judgment of our uncivil times.
7th VOICE: He should never have been appointed.
8th VOICE: It really is astounding-
9th VOICE: -overzealous-
10th VOICE: -completely out of control-
11th VOICE: Ken Starr is out of control.
12th VOICE: Why hasn't Ken Starr exonerated the president-
ANNOUNCER: Examine more of this report on FRONTLINE online. You'll find
more of the interviews with key figures, a look at the prosecutorial decisions
of the independent counsels, links to important writings and documents,
experts' arguments pro and con on the value of the institution, at FRONTLINE on
line at www.pbs.org.
Next time on FRONTLINE- he was a poet, a family man, a doctor. Then Radovan
Karadzic became leader of the Bosnian Serbs. Now he stands accused as the
world's most notorious war criminal. So why hasn't he been brought to justice?
Watch "The World's Most Wanted Man" next time on FRONTLINE.
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Now it's time for your letters. In response to our program on mandatory
sentencing for marijuana offenses, an expert on the infrared photography used
by law enforcement sent us a video letter. Carlos Ghigliotty demonstrated how,
he alleges, authorities adjust their cameras, in effect, fabricating evidence
against suspected marijuana growers.
CARLOS GHIGLIOTTY: -they actually crank it up to the max, and tell the
judge the walls of the property are burning-up hot, when they're not. I don't
have any problems with law enforcement agencies doing their job, but don't go
ANNOUNCER: Here's another comment about the program.
KEITH DAVIS: [Fairfield, Ohio] After seeing your program, I
wondered whatever happened to common sense and personal responsibility. Yes, it
does seem foolish to outlaw the legitimate medical uses for this drug, but to
try and convince me that these growers and dealers are to be viewed as heroes
of democracy or merely political prisoners of a cruel government is just plain
ANNOUNCER: And here's a program update. On April 29th, the day after
this program's broadcast, Doug Keenan, who in the program had admitted growing
marijuana for his own medical use, was arrested. He was charged with
misdemeanor possession and a felony: maintaining a public nuisance. Indiana's
Hamilton County prosecutor, Jeffrey Wehmueller, said, "Although there may be
some people who would like to see marijuana legalized, until that happens it's
Let us know what you thought about tonight's program. [fax: (617) 254-0243.
E-mail: FRONTLINE@PBS.ORG. U.S. mail: DEAR FRONTLINE, 125 Western Ave., Boston,