Attorney Tom Green


Green has represented Tyson Foods in its defense against and eventual plea agreement with the Smaltz investigation. He is a seasoned independent counsel defense attorney, having represented numerous investigative targets, including Richard Secord during the Iran-Contra investigation. Green is an attorney with Sidley and Austin in Washington, D.C.

ROOTS IN WATERGATE

Before the independent counsel statute, in '78 there was of course this great motivating event, Watergate and the Special Prosecutor, Archibald Cox, Leon Jaworsky. Did you have any presence at all in the Watergate unfolding?

I represented one of the initial Watergate defendants. I represented Robert Martian who was one of the five Watergate defendants in the Watergate case... so I lived through that entire ordeal from start to finish.

There have been so many people. I guess it is inevitable, because Washington lawyers, they could come to represent the people on various sides of this moment independent counsel. But everybody has antecedents and has a history.

It was a seminal moment. We kind of all started there. But it gave birth to the Ethics and Government Act, and I think at the time that that happened, the conventional wisdom was that that was a sensible thing to do, to create a mechanism to handle certain kinds of cases.

The Watergate case was an aberration. I think that what was going on with President Nixon at that time and his close confidantes is not what today's controversies are made of.

It was an expression of this reformist ideal, but the Watergate thing was so particular to this man, this office, the group of people that were around him at that time, rather than a standing problem with the executive branch.

It not only was very peculiar and very particular, but notwithstanding all of the ebbs and flows of that and all the crises that occurred in that entire process, but the process kind of worked in the end, the process worked.

There were some ugly moments there and some very unattractive moments, but the Department of Justice got through them and the Special Counsel, who were appointed, got through them and the case was tried to conclusion, as were other related cases. But again, I don't think anybody had in mind the evolution that occurred in this apparatus, in this device over the next 20 years.
CRITICISM OF THE INDEPENDENT COUNSEL ACT

Along the way, through this as the Special Prosecutor was evolving into the statutory independent counsel. There were a bunch of them...looking into all manner of things, ranging from drugs, allegations to some things lessor and some things greater. And the independent counsel always managed to avoid being sort of center stage in the national debate until now, right? I mean Lawrence Walsh, I guess.

I am not sure Walsh avoided it or wanted to avoid it, but I think in their own way each of these investigations attracted a considerable amount of publicity. It really wasn't I think until Walsh came along that people began to question whether this independent counsel act was working and whether it made sense to

give this undefined, unlimited mandate to an independent counsel who was kind of free to follow his or her nose and any other sense they had that there was something that had to be investigated.

By unlimited you means in terms of resources?

It is unlimited. Practically speaking, it has been unlimited in a couple of ways. Certainly unlimited in resources, although there have been recent amendments to the act to require the independent counsel to report and keep the Congress informed of his expenditures and so forth. But I think there has been very few limitations on the jurisdiction of the independent counsel. Usually the orders that appoint the independent counsel typically empower the independent counsel to begin his investigation concerned with a specific transaction or series of transactions, but then there is always that tag that they are kind of free to pursue other criminal violations that arise in the course of their investigation. You can kind of make of that what you want. If you are an independent counsel, you can kind of set your own appetite there. You can define your mandate to be very limited and you can pursue that and you can move through the process and wrap it up and make a decision up or down with respect to what you are supposed to look at. You can, if you want, probably stay there for as long as you want, trying to justify your existence by investigating x, y, or z. It is open for that.

And in your experience, is that course determined by the nature of the individual, the independent counsel or as much as by the circumstances.

You hit it on the head. The appellate panel that appoints independent counsel in one sense can't be faulted. I am sure they don't bring these candidates before them and kind of grill them in some personality test to find out just how they feel about their job and what they ought to be doing. Maybe they do, but I don't think they get a very good picture of it and I think this really is a function of personality and a function of style. It is kind of a job that permits the independent counsel to make of it what he or she wants, if they are looking at it as an opportunity to be exploited in other arenas or in other ways, they can do that, and they have done it. And they are doing it right now, I think.

And you don't know until it plays out.

You never know until it plays out

This administration commenced early in 1993 at a moment when the independent counsel statute had lapsed for various reasons, all political. And the new President, Democrat,Bill Clinton, his new Attorney General, Janet Reno, both went to Congress and Bill Clinton made a statement urging the renewal of the statute. Janet Reno went to Congress and passionately urged its renewal. And then cut to the year-and-a-half, two years later, Janet Reno is suddenly writing more restrictive language in the jurisdictional charter, finally basically doing back flips to resist the appointment of an independent counsel at all, seems to have turned completely on the issue that she once whole-heartedly endorsed.

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.


DONALD SMALTZ, TYSON FOODS AND MIKE ESPY

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 guy.

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 TO FIGHT AN INDEPENDENT COUNSEL

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, unlimited time?

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 him initially.

How?

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 statute.

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 about.

Like what?

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.

Any success?

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.

Succeed?

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.


THE LETTER TO THE ATTORNEY GENERAL

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?

Removed.

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 available.

How did you sense that?

Sense what?

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.


THE SPECIFICS OF THE TYSON ALLEGATIONSS

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 anything.

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 face?

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 thing.

Wasn't it?

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 his transportation.

Subsequently.

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.


THE GUILTY PLEA

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.

Such as?

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.

 


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