Interview: Donald Smaltz


A former assistant U.S. attorney and experienced white-collar defense lawyer from California, Smaltz was named independent counsel to investigate the Secretary of Agriculture Mike Espy's alleged acceptance of illegal gratuities. His investigation began in September, 1994, and is ongoing.

APPOINTMENT OF SMALTZ

Let's talk about that moment in 1994 when you were first contacted about the Espy case.

In 1994, I was with a small boutique firm by the name of Smaltz and Anderson. There were about ten lawyers. And we handled only litigation. That was the full extent of our practice. And I was sitting there one day and I got a call former district judge who I knew in Los Angeles, and he said, "If you're... interested in being an independent counsel," this was in July, 1994, "you need to send me an up-to-date resume or, better yet, send it to the Special Division...." I was interested so I dusted off my resume, updated it, and sent it forward to Judge Sentelle back here in Washington, D.C.

I heard nothing for about three weeks. Then, all of the sudden, I got a call out of the blue from the judge who asked me, was I in fact interested? And, if so, what did I know about someone by the name of Mike Espy?

[When you first received your commission,] how large a possibility is it in your mind that you might find there is no case there against Mike Espy?

Well, that was a very significant possibility in my mind.... Look, of the sixteen or so independent counsels appointed to date, most of them did not bring indictments. In fact, most of them found that there was an insufficient basis to indict, and there were no criminal proceedings at all. It was just the investigation and preparation of the close out report. I thought very strongly when I first came here, that's where I was going to wind up.

You live in Los Angeles. You have a home there. You had a law firm there. So when you left Los Angeles and came here to set up an independent counsel's office, what was your state of departure? Did you plan to commute?

Well, Yes. I did plan to commute. [My wife and I] had just adopted, five months earlier, two young boys from Russia.... There was always the expectation that while I would take this assignment, I would be able to come home on a regular basis, and maybe spend four days in Washington, three days in Los Angeles, or whatever it took. We didn't know. But I expected to be home in Los Angeles on a regular basis, at least on a weekly basis, and ultimately, within a year, permanently.

And how did you leave things with your partners at the firm?

We have a very, very good relationship at the firm. And the theory was... that I would handle what I could, and my one partner... would shoulder much of the load, and sort of carry it for me until I got back....

My partner picked up the slack and I just sort of stepped out of the loop. The clients understood... because they thought it was temporary, and I said, "I'll be back." But the longer it extended itself, the less accurate they thought I was in my initial assessment. And I knew as well, that I was getting into... much deeper waters than I ever anticipated when I took the job.

Ultimately, what happened with the firm?

I dissolved it this past December. It just got to the point where we couldn't carry on.

So your answer to Judge Sentelle , "Yes, I'll take the job," had consequence beyond anything you'd expected?

I didn't think I'd have to give up my firm. That was the last thing from my mind. And I did think I'd be able to be back in Los Angeles on a regular basis, with my family, to discharge my duties to help raise these two boys.


DIFFICULTIES GETTING STARTED

You're a new independent counsel, the first to set up a shop under the reenactment of the statute.

And that was important because Congress recognized the problems of independent counsel, particularly those who are not appointed from the Washington D.C. area and have no base of operations here.... We started out just with a piece of paper. First of all, we had this little closet in the U.S. Administrative Courts, and they had made available a young woman who had substantial experience in administrative matters, so she could help me sail the waters when it came to hiring people. So I had to begin advertising, and asking by word of mouth to find secretaries, law clerks, paralegals, and lawyers.

Because you have no staff.

No staff at all. So to help me through this process, I brought back my secretary and office manager... who had been with me for many years in Los Angeles, and used her as the primary interviewer. And in the meantime, Charlie Bakaly, from Los Angeles, had come onboard within four or five days. [He was] a lawyer in private practice who I'd worked with [previously]...

The biggest problem is recruiting really good lawyers, because you get your lawyers either one of two ways: either you ask the Department of Justice or the U.S. Attorney's office to detail lawyers to you, which we do, and we've made a lot of use of that, or you go out and you hire lawyers from private practice to come back, just like you're coming back. But the lawyers you're hiring to come back are all seasoned former prosecutors, and they're doing very well now in private practice, and the first question they're going to ask you is, "How many cases do I get to try?" And you say to them, "I don't know if you're going to get any. Probably you're not going to get any, because we don't know if the decision's going to be to indict or to not indict. We're interested now solely in the investigative stage."

[Aside from setting up an office from scratch, what are some other obstacles confronting an independent counsel when starting an investigation?]

Number one, you start from ground zero. In fact, you start from below ground zero. But your subject usually doesn't. By the time you're appointed, your subject is on the alert, he knows that he or she is going to be investigated by an independent counsel, because usually the application of the Attorney General is well known by that time.

Number two, when the subject is on alert, he can prepare for that investigation. I mean, consider the independent counsels that have been appointed in the recent year or two, or even as recently as last week, before the independent counsel application was ever filed by the Attorney General, there were people in the media choosing up sides: Yes, they should seek an independent counsel; no, they shouldn't. So, the popular groundswell of opinion is starting to build into two separate camps, alright? That causes you problems, because with the subject on alert, with the groundswell building by those who oppose the investigation, people are going to be less inclined to come forward.

Now, another thing that happens when you're starting out as an independent counsel and you're accumulating your staff, you don't know how long you're going to be in existence. If they come from a distance, you can't expect them to commit a year, more than two years, generally. I don't.

In the two years, you have no control over the pace of your investigation. But your opposition knows you're a temporary agency. Your opposition knows you want to close down as quickly as you can. The quintessential soundbytes of independent counsel investigations, "cost too much and are out of control," are constantly being uttered. And you find yourself having to bring people into the organization, assigning them to their duties, hoping things are going to occur within the time limits that that individual who joined your staff has, but then suddenly finding out that you don't have any control. You're just one of three parties.

During the course of your investigation, all you can do is get the subpoenas out, get the grand jury scheduled, get the people to respond to those subpoenas. But the defense has made a cottage industry out of challenging independent counsel grand jury subpoenas based upon lack of jurisdiction. That is a favorite mode of challenging them.

And if you have a judge who is very, very deliberate, and takes a long time in deciding issues every time you have challenge, first of all, you're going to have to file a response, and then the other side gets to file another response, a reply to that response, then the judge has to decide it, and that can tie a prosecutor up for weeks, if not months.

And the effect of an alert subject... how does that alter what ordinarily might be a prosecutor's investigative course?

In public corruption cases, as in many types of cases, the best thing the prosecutor has going for him is secrecy. He tries to keep his investigation from becoming a matter of public knowledge. So, in public corruption cases, very, very early on you're going to see that the prosecutor wants to keep the investigation low profile, he doesn't want to go overt, as the saying is, he wants to keep it covert, under the covers, and he wants to be able to use undercover techniques like surveillance devices, cameras or tapes, audio tapes, on people he can turn. And most often, in almost every independent counsel, the IC is denied the most effective undercover technique, and that is stealth and the opportunity to use those particular, those particular investigative tools....

Secondly, the Attorney General, under the statute - this isn't her fault, this is just sort of an accident of the act - is required to make a preliminary investigation. But once she makes that preliminary investigation, she can't use any of the regular tools. She doesn't have subpoena power, she can't grant immunity, she can't compel a handwriting [analysis], she can't compel any testimony at all, any evidence at all. All she can do is ask. Ask. But she cannot use the grand jury. That means that that investigation she conducts is very, very superficial. And that puts footprints, her footprints, all over the crime scene.... She goes in, the agents ask questions, people lie. In independent counsels' investigations you're going to find lying is more frequently charged than almost any other crime....

More often than not, [the Attorney General's preliminary investigation is] not only not useful, it's very detrimental. If you talk to any public prosecutor who does public corruption cases, or if you look at the literature that's being put out by the Attorney General of the United States and by the office, you'll find that they talk about, in these public corruption cases, even when you go to talk to the subject, you don't do it until later in the investigation, until you know more facts, until you have a complete story. And when you go in, you go in and you try and get your hands on the documents that you think are going to be key, right away, because they teach you that if you don't do it that way, that the documents may disappear.


BEGINNING OF THE ESPY INVESTIGATION

On the surface it seemed to be just a simple matter of whether or not the Secretary of Agriculture, Mike Espy, had improperly accepted gratuities of what seemed a very small nature. A couple of football tickets, an invitation to a party. Did you begin to discern something bigger behind that superficial series of allegations, something broader, as you got into it?

Sure we did. I had the same perception that you did initially when I took the job. That is why I thought it would only take me six months. The deeper we got into the investigation, the murkier the problems became. The nature, the reasons for why the Secretary was allegedly given gifts by Tyson and others became more complex. It wasn't just a question of inviting a cabinet officer to a football game. Soon we began to develop information that suggested it was far deeper than that, and for a far more nefarious reason.

Then we began to learn about how documents seemed to have disappeared, or may have been altered, and how individuals who we were speaking to were beginning to either change their stories or digging in their heels. We began to see that some of these institutions whose representatives had given things to the Secretary had significant amounts of money at stake, because the USDA has a tremendous amount of power. It has a huge budget, $63 or $65 billion budget. It employs almost 120,000 people. It has got offices in every country in the world almost. It has a lot of largesse and it distributes that largesse through a variety of programs, and all of the agribusinesses that we looked at whose representatives were giving things of value, had a significant amount at stake.

So what you saw was this emerging broader picture that began to become clear to you. It wasn't just a matter of an isolated friendly gesture, but, what, exactly?

There was an effort here to favorably influence the Secretary so that he hopefully would be favorably disposed to a particular entity's point of view, and that came out in various prosecutions that we ultimately brought.

In early 1995... your inquiry begins to broaden, more broadly related subpoenas begin to go out. What was your office going for in those more broad subpoenas? What were you reaching for?

Let me begin with the observation that at the inception of our investigation, our grand jury subpoenas were very narrowly focused to look at the immediate circumstances, and not beyond them, surrounding the making of these various gifts by the entities that we were then aware had given gifts to the Secretary. Once we got beyond those, you are right, we began issuing broader subpoenas and I assume you are relying on the press accounts for that, because I could not share, and we have not shared with you, the details of any of our grand jury subpoenas.

But in any event, you are right. We did have much broader subpoenas because now we wanted to look at all of the circumstances surrounding the particular gifts, and also whether or not these types of gifts or this type of giving formed part of a pattern of doing business on the part of these entities.... We were looking for pattern and practices to try and put some context around these gifts that went to the Secretary. In other words, was it part of a pattern for this company to give gifts, and had it been giving gifts to previous cabinet officials, and is this part of its modus operandi? Is this the way it does business? Does it give gifts to other cabinet officials? Does it give gifts to other federal officials?

What if it had, what would that have meant?

It would have been evidence that the gifts that were allegedly given to the Secretary were done so with the specific intent to influence him.


BEGINNING OF TYSON INVESTIGATION

Fairly early on... the office turned its attentions to Arkansas, to Don Tyson and Tyson foods. You sent somebody down there, or did you go down there yourself?

No, I went down there myself with three agents in November, 1994.

Looking for what? Why Don Tyson?

Well, the original allegations against Secretary Espy, as reported in the Wall Street Journal on March 17th, 1994, linked Espy with Tyson, and talked about gifts that Tyson had given Espy. And so that was a place to begin. I wanted to go down to Arkansas to see what we could find out about Tyson's practices regarding giving gratuities to public officials, whether or not Espy had been seen down there, whether or not anyone knew anything about him taking things.

Tyson is a multi-billion dollar company and presumably a large influence in that part of the world. And so, what do you do? How do you begin? Where do you go in that situation?

The question was, "Who's going to know about what Espy allegedly did or did not do with Tyson?" In those types of situations, you know, the best sources of information are usually ex-wives, if they'll talk to you, or chauffeurs, ex-chauffeurs, or airplane pilots, who fly these private charters or fly for the organization. And we didn't find any ex-wives who would talk to us and we didn't find any former chauffeurs, but we found, through looking at the public records, a former pilot at Tyson's air arm, who had had a public dispute that ripened into litigation with Tyson, and he has sued Tyson. So, we thought that might be an appropriate person to talk to....


TYSON'S EX-PILOT TALKS

So you found a man who did have a beef with Don Tyson, his former pilot, Joe Henrickson. You all summoned him to an interview?

Well, first we called his lawyer, because he had existing litigation ongoing, and called him and asked her, if we could talk to him, and she said sure.... I think we called on a Sunday evening, the next day he showed up...

Was he willing and cooperative?

He was willing and cooperated. And he cooperated without any apparent reservation....

As I recall, he had left Tyson's employ in April, 1993, and we were interested if, in that period of time, he had ever transported Secretary Espy around in a Tyson vehicle. And if so, where? There was information that caused us to believe that there was an entertainment facility outside of the country, down in Mexico, that was operated by Tyson's. And we were interested in knowing whether or not Mr. Espy ever went there. It turned out that there was no such information that this individual had, Joe Henrickson. And so, we asked him about patterns and practices, what officials, if any, did he see entertained? And how were they entertained? And where? And what was the nature of the gratuity or the gift or the thing of value, if any, that was given? He told us that he was requested to take cash payments, envelopes with $100 bills, to the then-governor.


CASH PAYMENTS TO BILL CLINTON

Bill Clinton?

Bill Clinton, that's right. And this is the first we ever heard of that. And we were trying to figure out what to do with it. And it was relevant to us from the standpoint that this was a practice and a pattern that Tyson had. We wanted to investigate to see whether or not, in fact, it ever reached any of the Secretaries of Agriculture, including Mr. Espy.

And that's why you believed it was an appropriate course of inquiry for your purpose?

It did. If you look at our jurisdictional mandate, we were to investigate Secretary Espy to see what gratuities, if any, he received from companies he regulated while he was Secretary of the USDA. Under the gratuity statute, 18 USC 201, it's an offense for both the giver to give an unlawful gratuity and for the receiver to receive the unlawful gratuity. We were now investigating the giver side, in this instance; it happened to be Tyson. There were other givers of gratuities that developed in our investigation, as well.... But we were not investigating the President. We never made any pretense of doing that. And if we had gotten much beyond what Mr. Henrickson told us, and I felt there were anything there, I would've forwarded it over to either the Department of Justice or Ken Starr....

Tom Green, [Tyson's attorney] says "Smaltz became enamored of the idea of going after the President and saw himself as competing with Ken Starr," and that's [why he pursued Henrickson].

That's wrong. I mean, the notion that I wanted to chase the President of the United States is just absolutely and totally false.... That's a story that the opponents of my investigation tried to put out because they thought it would sell.... But that was a rumor that was put out once before, and that's coming from Tyson.


INVESTIGATORS UNWELCOME IN ARKANSAS

As a prosecutor, when you go in and you bring somebody in like Joe Henrickson, and you ask him these sorts of questions and he gives you a piece of information like that, do you have any sense of what it means for him to continue living in that town and to carry on his life, having told stories about Don Tyson?

Sure. During the course of our interrogation of Henrickson, he told us that he was concerned [about] threats that he believed had been made to him, or to his attorney. And when we questioned him why Tyson or anyone affiliated with Tyson would make threats against him is when he volunteered this story about the cash in the envelopes. And I always thought that once it became public that he told us that, about those allegations, that he might have a difficult time continuing to live in Arkansas. And I think he has since left Arkansas and is living elsewhere.

You mentioned a few moments ago that when you all arrived, you and your investigators arrived, in the Fayetteville area, that you were not made to feel welcome. How so? How did that show itself?

Well, it's hard to tell; it's a subtle thing. But sometimes phone calls placed by us outside of the FBI office, where we were operating initially... maybe they didn't get connected. It was hard to tell. It seemed that people were keeping an eye on us when we went out to the restaurant. Everybody seemed to know who we were.

The press down there would ask us, are we investigating Problem X in Tyson's? And we would say, "No, we're not investigating that." And they said, "Do you have any information?" And we'd say, "Well, we can't comment." And then the next question might be, "Well, if you had information, would you investigate?" And we wouldn't comment on that. And then the next morning, there would be an envelope with my name on it, but nothing, but no identification who the sender was, but with gossip or innuendo or old police reports. And then, that afternoon, I might hear - or the following morning read it in the paper - that we're investigating Tyson's for X, whatever happened to be in the envelope, which was just not true. But it seemed to us that there was an effort to discredit us early on in our investigation. Because, you know, when you can be successful in discrediting an investigation, it can chill the effect of that investigation, it can chill people from coming forward and talking to you, it can chill witnesses volunteering to tell you all they know.... So, my perception was that was an effort to chill the investigation at a very, very early stage. And it got a lot worse after that.


LETTER OF IMMUNUITY FOR HENRICKSON

In an effort to protect the integrity of our investigation, and to protect Henrickson..., it was determined that it would be appropriate for me to give him a letter of immunity, in an effort to get him to tell us everything, if there was anything more.

And so, we prepared a letter of immunity and I signed it and I gave it to him the next day, and we said, "You should know that while this letter immunizes you from information that you tell us about offenses that you may have committed, if you lie to us, we can prosecute you under the false statement provisions of Title 18, USC 1001. And, believe me, Mr. Henrickson, we will do that. So, we're interested only in the truth."

[I also thought that the letter would] cause people not to attempt to influence his testimony - I'm talking about outside forces - by threats or intimidation, because when you have a witness under grand jury subpoena and somebody tries to put pressure on them to change their testimony, it's a crime, it's a federal offense, under Title 15, 18 USC 1512.

And it was that letter, the fact that that letter surfaced, it got me to talk to the Time correspondent, which then precipitated a whole host of new problems.


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