I think it would have been hard for a new President and a new Attorney General
to step up to the plate and say let's do away with the independent counsel
mechanism. It would [be] like, I want a free pass on everything I have ever
done or that is ever going to happen here. I think Smaltz is part of the
problem. I think Starr is probably part of the problem. I think Cisneros is
probably part of the problem. |
I think Babbitt is part of the problem.... The independent counsel mechanism is
now a political device in this country. It is not an adjunct of the
administration of justice any more. It is a political weapon and I am not
accusing one side or the other. I am not trying to be partisan here, but I
think if there is some political currency to calling for the appointment of an
independent counsel and marshaling the arguments that so and so is a bad
person, or this transaction is awful and has to be investigated, that is what
people do now. It is part of our culture. Let's have an independent counsel
tomorrow, right away, and if you don't appoint one, you must be up to
something. You've got your own agenda.
And yet it is not Congress and it is not Rush Limbaugh, it is the
administration's Attorney General that ultimately at the end of the day has to
call for it and an independent, presumably judiciary, the Special Division of
the Federal court, that actually does the appointment.
We would love to think that everything operates perfectly in this world, but
none of us are that naive. There is often tremendous, I am sure, tremendous
pressure on the Attorney General to appoint an independent counsel. The way
the law is constructed, the Attorney General is behind the eight ball right
from the beginning. There is limited time to look into these allegations.
There is subpoena power. There is no grand jury. Your whole investigative
effort is truncated and if you can't reach this kind of ultimate determination
that there is nothing there, it trips the wire for an independent counsel. The
way the statute is set up, there is a terrible problem here and it takes away
from the Attorney General a lot of his or her ability to look at these
instances with enough time and enough resources to make the kind of decision
that ought to be made. That is one of the fixes that is either going to be
made, or I don't think we are going to have a statute.
Your most recent engagement with an independent counsel is Donald Smaltz, in
the case of Mike Espy which led to Smaltz' pursuit of your client, Don Tyson
and Tyson Foods.
That is right.
Tell me about Don Tyson. Who is he? What kind of fellow is he? Was he
vulnerable to an overzealous prosecution? He is a rich, powerful, connected
I think you are vulnerable to an independent counsel. I think we are all
vulnerable to an independent counsel. I think if you give me a grand jury and
an unlimited budget I could probably indict you or anyone else in this country.
So in that sense, we are all vulnerable. I don't think Don Tyson was any more
vulnerable than anyone else for any real reason. He may have been more
vulnerable because he was a kind of public figure, thought to be close to the
President, thought to be a captain of industry. Thought by Mr. Smaltz, I
think, to be someone who, if you achieve at the level that Don Tyson has
achieved, there must be something there. It is that attitude that he brings to
the undertaking that kind of defines how he goes about his business. I don't
think Don Tyson deserved to be investigated. I don't think Tyson Foods
deserved to be investigated. I don't think that every indiscretion, or if
there [is] a mistake, or every lapse in judgment has to be pursued using the
criminal law. I think that notion is absurd. I think that Smaltz, if I had to
fault him, I think he lost his sense of proportion. He simply couldn't draw a
line between that which was curable through remedies other than the criminal
law, and that which really deserved to be prosecuted.
If I could yank you back in time to the beginning of the Smaltz inquiry,
which I guess seemed at the time limited enough. It was just to look into these
very particular allegations that the then Secretary of Agriculture, Mike Espy,
had improperly accepted gratuities. When did it become plain that this
independent counsel, Donald Smaltz, was heading in directions that seemed to
you, anyway, inappropriate and heading right at your guy, Don Tyson?
I think we understood right from the beginning that it was heading towards Don
Tyson. I always thought that Don Tyson was for all practical persons, a bigger
and larger and more attractive target for Mr. Smaltz than was Mr. Espy. But we
had to come to grips with Mr. Smaltz's view of his mandate early on because he
began to investigate whether or not pilots of Tyson Foods had been carrying
envelopes to then Governor Clinton, which was absurd. But Don Smaltz became
enamored of that idea and began an intensive investigation into that and I
think saw himself, frankly, as competing with Ken Starr for a piece of the
ultimate Presidential prosecution. That is the target these guys had in many
respects. I don't think they made any secret about it. I think they almost
began to compete with each other. We complained vigorously about that, right
at the outset. You may remember that Don Smaltz made some comments in
Time Magazine about his belief about the merits of some of these
accusations, which was totally inappropriate and a senseless thing for him to
do. And we climbed on him for that. To his credit, I think he ultimately
figured out that that is not what he should be doing, and he stopped a lot of
that extra-curricular activity. The Attorney General took him off, because he
went in to seek further expansion of his mandate and she said no.
But Don Smaltz is interested in Mike Espy and who Mike Espy knows in
Agriculture and who he might be having too cozy a relationship with him and his
gaze comes to, perhaps understandably, Don Tyson, a man who after all is one of
the giants in agriculture. That seems reasonable enough, doesn't it?
It is reasonable if there is something that indicates, something plausible,
something real, something tangible that indicates that Don Tyson is having some
kind of improper, impermissible contact with people in the Department of
Agriculture, whether it is the Secretary or people beyond that. If it is kind
of a dream, you know, that comes to you in the middle of the night and you say
to yourself, golly wouldn't this be wonderful if it were true, and now I will
just set out to see whether it is. To me, that is not what the independent
counsel is supposed to be doing. I think probably Don Smaltz has figured out
early on, that Don Tyson had very little contact with the Department of
Agriculture, virtually zip.
But it wasn't just a dream, though, right? He had been told, had Smaltz,
by a witness, it turns out a grand jury witness, former pilot of Tyson's that
Tyson was in the habit of regularly making payments to politician and one in
fact happened to be then governor of Arkansas, Bill Clinton.
If we are talking about that specific incident, he had a disgruntled former
employee who told a tale of envelopes going to Governor Clinton. There were a
number of people who had to intersect with that story. 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. There were
plenty of people at the air field, on both ends. 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. But that is a notion that
doesn't come easily to Mr. Smaltz.
How in the world do you fight an independent counsel? How in the world do
you stop someone who has unlimited authority, apparently unlimited resources,
It is not so much a question of bringing them to any kind of an immediate stop.
It is a process. First of all you hope that the independent counsel whom you
are working with and trying to find out whether this case is deserving of
prosecution or ought to be dropped, you hope that that person is reasonable.
You hope that that person understands the limitations of what they are looking
at or have been asked to look at or ordered to look at, and you hope that they
will be receptive to the arguments you make. The independent counsel conducts
an investigation, but I, as an attorney for someone such as Mr. Tyson or anyone
else, have the ability and the access to conduct our own investigation and
probably know more about the underlying facts than the independent counsel may
know or may ever know but eventually we package up that presentation and it is
a process of persuasion.
Of sitting down and convincing the independent counsel that there has been no
impermissible conduct here. There has been nothing improper. There has been
no violation of law, or if there has been, it is very technical. Very
insubstantial and that the criminal law should not be invoked, there are other
things to do. There is nothing very esoteric to it. ....We climbed all over
Well, we climbed all over him by just first of all never missing an opportunity
to berate him and tell him he was way outside the playing field. He was like
three dugouts over.
You mean to the press?
To his face and to the press and ultimately we wrote the Attorney General and
I 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 pilot's was one of them. My understanding is
that they had a little tete-a-tete, the Attorney General and Mr. Smaltz, in
which she made clear to him that she wasn't going to expand his jurisdiction
and redirected him to those areas where he should be looking.
At one point apparently a member of Congress from Arkansas, Representative
Dickey, was even considering a rewriting of the independent counsel
Well, more power to him. The independent counsel statute is going to be
re-written. It is either going to be substantially re-written or it is never
going to be enacted again. The principal vehicle you have for trying to limit
him is to go after the subpoenas. The subpoenas come out, they ask for
information connected to topics and areas which we would feel have absolutely
no relevance to his jurisdiction. They are just things that he is dreaming
Well, use the airplane incident again, there may be a subpoena for all the
documents concerning the airplane, all of this trips, all of its this, all of
its that. I can't remember whether we challenged that precise subpoena, but
there is very very many subpoenas what we challenge in the course of this
investigation. We probably we more active challenging subpoenas than any other
lawyers in the history of these ongoing investigations. I don't know that to
be a fact, but I bet it is close.
Yes, we had a lot of success. It is hard to discuss the particulars of that,
because that subpoena challenge practice is often conducted under seal and it
is just something that we are not permitted to talk about. But yeah, we
challenge the subpoenas and we had success and I think I can safely say that
generally what you are doing when you are challenging the subpoenas, you are
going into court to the chief judge, and you are saying, look, here is a
subpoena that asks for X. Here is the order setting up this independent
counsel. This subpoena has got nothing to do with the subject matter of this
order. You couldn't torture a connection out of this subpoena and this order,
and on many occasions we got the court to agree with us.
That is probably your principal weapon.
Donald Smaltz of course would say that you all, Mr. Tyson and you went to
war with him and that it worked, declared war on him and that it worked.
That would be nice if he said that. I would be amused if he said that.
Did you go to war with him and did it work?
Sure you go to war with him. Here is a guy who wants to conduct an
investigation, bring extraordinarily serious charges against your client or
clients and essentially wants to see you punished, and if you believe that all
of that is unfair and unwarranted and unnecessary, yes you go to war with him.
Yes, we succeeded in part, I think, in the end. This war had no end in sight
and the management of Tyson Foods ultimately decided that there just had to be
an end or we could be engaged in this war from now until eternity. So there
was a negotiated end to this war.
You wrote the Attorney General?
I wrote the Attorney General once and the Attorney General wrote me back, my
recollection is, a polite letter, saying, I don't remember the exact words, but
at this time I have decided not to do anything, thank you for your letter.
What did you ask?
I think I asked her to exercise her authority to remove Mr. Smaltz because he
was far out on the fringe.
You wanted him fired?
Did you think there was a chance that would happen?
I wanted to give her every opportunity to consider that. Yes, I thought there
was possibly some chance. I sensed that she and perhaps others in the
Department of Justice were losing their infatuation quickly with Mr. Smaltz
personally. It was a drastic remedy, but there are not very many remedies
How did you sense that?
That loss of infatuation with Don Smaltz?
I think it is, again, I am trying to think back to that time, but it is a
combination of your ear to the ground and just hearing things. You in your
profession you have your channels and your networks and your information
streams and we do too. I don't recall that I had any visible, hard, evidence
of that fact, but I believe what I said was correct.
Don Tyson did in fact solicit it seems the friendship of Mike Espy, the
Secretary of Agriculture. He did buy him football tickets. He did invite him
to the famous Tyson birthday party. He did fly him in, put him up, fly him
back. There was the scholarship for the girl friend, all of that. Wasn't that
on its face inappropriate?
You got to take every one of those transactions separately, kind of take them
apart one by one, when you do it, ok, and look at the surrounding circumstances
to each of those episodes. They are really nothing. They don't amount to
When is a chicken king's invitation to the Department of Agriculture's top
man to a birthday bash anything other than what it seems to be on its
If it is undertaken for the purpose of somehow cozying up to the Secretary of
Agriculture with an intent that he will do something for you, that is one
Of course not. And first of all, if you assume that, that says something
rather I think outrageous about Mr. Espy. Mr. Espy went down to the University
of Mississippi to give a commencement address and then he was flown by the
University of Mississippi airplane over to Russellville, Arkansas, where he
gave a talk to the Arkansas Poultry Federation, and he was in Russellville that
evening, and Don was having a birthday party. It is not some little intimate
party with Don and two other guys, it was a huge bash with a lot of people and
he invited the Secretary to come over and the Secretary came over. And when he
came over, the Secretary mingled with probably 150-200 people. Don Tyson
probably didn't spend 10 minutes taking with Mike Espy. Mike Espy listened to
some music. Had a meal with a bunch of other people, and the evening was over.
You ask the question, is that a bad moment in history? I don't think that is a
bad moment in history. If you are cynical you may read into that some ugly
insincere motive, but I think all Don Tyson was trying to be was hospitable.
The man was there, we are having a party, come to this party. Nothing happened
at the party. And the man went home and the Department of Agriculture paid for
Subsequently, but they paid for it. If you could embellish that in some way,
and I don't mean you personally, but if the independent counsel could embellish
that and demonstrate that they went off and made some deal in the back 40 where
the party was going on, that is one thing. But that didn't happen. That was
never intended. It is kind of impossible to take that event and mangle it into
some totally inappropriate act. It was a very very causal kind of coming
together and going apart.
Why did Tyson agree to settle? Plead guilty?
Tyson Foods ultimately pled guilty to one count of making a gratuity. We can
embark on a long and intricate discussion of what is a gratuity and what are
the elements of a gratuity. But in the final analysis the company, and again,
this was a decision made by management and I am more or less paraphrasing what
I understand to be their rationale, there was no prospect that this
investigation was going to end any time soon. There was every prospect that
the company might not be able to extricate itself without having to go to
court. That added even more years to the process. We should not lose sight of
the fact that Tyson Foods is a major major corporation. Its business is to
conduct business. I think management felt very strongly that if it could get
the proper concessions in return for a disposition, they would be willing to do
it. And so a very complex and complicated negotiation ensued and in the end an
agreement was reached, where the company agreed to enter a plea. As I said,
they went to a one count of giving a gratuity, but the company received some
substantial concessions in return.
I think probably the two most substantial concessions where that the case
would end with a kind of a negotiated settlement which would not entail any
suspension or debarment of the company from doing business with the government.
In fact, there was simply no curtailment of business imposed on the company
whatsoever. I think the other substantial concession was that 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 the next four
years, were wrapped up, closed out, terminated, without action, ended, over
with, the end, final act.
So justice was serviced?
It was an enormous price to pay to extricate ourselves from an investigation
which had run amuck. I will let others decide whether justice was served. The
end was achieved, I will say that.
But Don Tyson agreed then to cooperate with the prosecution of not only Mike
Espy, but his underlings at Tyson Foods.
That is a misnomer. If you translate that into English, what that means is
that Don Tyson, like other executives and Tyson Foods, has agreed to tell the
government what he knows and that is that. That is what it means. He has told
the government what he knows already. If the government wants him to tell it
again, he will tell the government again what he knows. That is what
cooperation means. It doesn't mean that he is an advocate for the government
against anyone at anyplace at anytime. In fact, if Don Tyson were sitting
here, I think he will tell you that he is the first to believe that Mr.
Schaffer, who stands indicted and Mr. Williams are innocent and he is hopeful
that they will be vindicated, and confidant that they will.