tapes & transcripts

FRONTLINE
Show #1617
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 Nixon?

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 system.

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 got.

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 wars-

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 of Agriculture-

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 uncontrolled investigations.

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 begin.

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 begun.

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 will talk.

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 corporate jets.

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 Tyson.

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 anybody reputable.

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 do.

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 up.

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 Foods.

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 the governor?

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 president's defenders.

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 compared-

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 Smaltz's request.

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 of subpoenas.

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 this subpoena.

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 department.

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 Department.

PETER J. BOYER: Do you know what Justice has done with that piece of the investigation?

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 getting them.

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 earn it.

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 something more.

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 that-

CHARLES HULL: That's correct. That's correct. Quite fantastic, almost.

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 Special Division.

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 inherent conflict-

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 important.

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 working out.

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 matter.

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 poultry regulations.

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 you."

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 beyond reproach.

NARRATOR: For Donald Smaltz, it is a reckoning day. Mike Espy has just been indicted.

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 return.

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 that.

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 its time.

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 interview]

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 a wife-

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 fabricating evidence.

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 nonsense.

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 still illegal."

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, MA 02134]

 


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