Interview: Donald Smaltz



[After the meeting at the Department of Justice] were you not tempted to arrive at the conclusion that perhaps at least someone in the Department of Justice was not entirely on your side in this undertaking?

I don't think anybody in the Department of Justice was on my side. I called my wife at the end of the meeting, when we got back here. 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."


Not for me. I was afraid that 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 a deputy, six of them, to sit down at a meeting, all we're doing is discussing my investigation, and there are much greater forces and needs of that talent at the time than my little, old investigation.

Don Tyson was a powerful man.

That's a lot of power.

After this meeting, there must have been, I guess, a sense of deflation, or what, anger?

I was angry, I was angry. I was angry that there could be that much concentration of power over this simple issue.... I had a long talk with Ted Greenberg. We tried to figure out where we were, what impact this was going to have, if any, on the rest of our investigation, and how we'd go about going to work to achieve what we believed we had to do to fully and completely investigate the matter, as was our mandate. And we did.

One of the things I decided, was that my ability to deal effectively with the Department of Justice at that moment, or from then on, was zilch. And that I would, if I wanted to handle something new that came up or that was related, I would go directly to the Special Division, and present my case to them, as the statute permitted....


You began to pursue other avenues, those that were still available to you, such as the case of Ronald Blackley, chief of staff to Mike Espy. Did you have to go to the Department of Justice and ask their permission [to look into Blackley]?

No, we didn't ask their permission. Under my charter we had the authority to do the investigation. But I was certainly aware that if we returned an indictment, that we'd have a series of challenges in the district court that the Blackley matter was not within my jurisdiction. So we consulted informally with the Department of Justice and, after a long, long discussion back and forth, they concluded it wasn't a related matter.

We felt strongly that it was. So we decided to file an application with the Special Division. That prompted a cry of outrage from the Justice Department, who accused me of putting the republic in jeopardy, because I was going to stand the separation of powers in the Constitution on its head, and, if it did that, it would fall over and we'd never be the same, all because I was going to the Special Division, which was a procedure that Congress authorized when it amended the statute back in 1994.

And the Special Division, by which we mean the special three-judge panel, still had the option of telling you no?

Absolutely. I mean, all they had to do was say it's not sufficiently related to be a related matter, and that would have been it. And we would not have indicted Blackley, because of the jurisdictional concerns that we had at the time. We believed that the Blackley matter was four-square within our investigation, investigation authority, but we were concerned about what would happen if we indicted.

After we got the confirmation of our jurisdiction and the Division said it was a related matter, it not only extended to the Blackley matter, it also extended to the Mitchell matter... we promptly indicted Mitchell and 5M Farming. We did not indict Blackley then. We continued on with our investigation, because we wanted to close some additional loops, and did not indict Blackley until 1997.


In your view, why had the Department of Justice fought you on that issue?

It's hard to be certain, but I suspect the following reason or reasons. Justice Department is concerned that the independent counsel is getting too independent. You have to understand how the jurisdictional quagmire, for want of a better word, works. For an independent counsel to be constitutionally valid, there's a delicate balance that has to be struck. The Attorney General has to request the court appoint someone to be an independent counsel, she's got to file her application after she does her investigation. And in her application, she's got to identify the subject areas which need to be investigated with specific certainty, so that the Special Division can craft a jurisdictional order. Because the statute requires, once an independent counsel is appointed, he fully and thoroughly investigate the matter for which he is appointed. Now, that doesn't mean that you just take a look and say, "Oh, those are the facts," and you walk away from it. You have to really look at the facts, and all the facts and all the facts that are related to those facts, to make an honest judgment: "What's transpired here?"

And so, what had happened was, when Bob Fiske was appointed as a special prosecutor, first, in January of 1994, Bob had negotiated his jurisdiction with the Justice Department. And it was very broad. And then when the independent counsel statute passed, the Attorney General wanted the court to appoint Fiske, Bob Fiske as the independent counsel. She filed an application with the very same jurisdiction. The Special Division said no. Since had originally been appointed by the administration, he wasn't independent enough under the test set forth by the statute. So, they reached out and appointed Ken Starr.

Ken Starr basically, then, went to work, operating under the same jurisdictional language?

Same jurisdictional language as Fiske had. Then I came along, a month later, and they used a cookie-cutter approach. Somebody forgot to change the computer, because, well, the first paragraph, the core jurisdiction of mine, was different than Starr's, the rest of the paragraphs were very, very much the same.... Very, very broad. And, in fact, the second paragraph of Ken Starr's jurisdiction and mine are identical. We shall investigate any organization or person who may have committed crimes that we learn about, which arise out of a result from our investigation. So, if, in the course of our investigation, we come across some entity that committed criminal acts that are somehow related to our investigation, we have the authority to prosecute.

You inherited, essentially, the language, the very broad jurisdictional language, enjoyed by Robert Fiske first and inherited by Judge Starr. I wonder if the Department of Justice, in drawing up that language for subsequent independent counsels, today, is it just as broad?

No, it's not. What they did was, so far as my investigation was concerned, we had a paragraph, the second paragraph, what I call "the omnibus paragraph," if federal criminal activity came to light, which was developed by us during our investigation, which was connected with or arising out of our investigation, we were given jurisdiction to investigate it. Now, that language had been proposed by the Justice Department and adopted by the court, so it gave us a relatively broad mandate. My recollection is that, since that time, other independent counsel have not had quite as broad a mandate.

This Justice Department, in setting forth the parameters of the independent counsels' jurisdiction, seems to have had second thoughts about a broad, wide-ranging commission to its independent counsel.

I think they have. And I think that's a result of their experience. I mean, one of the things that you have to look at is, Ken Starr was appointed to investigate Madison Guaranty and everything associated and affiliated with that. Two weeks before I'm appointed, or a week before I'm appointed, he comes in and he gets referred to him by the Special Division - not by the Justice Department - as a related matter the Webb Hubbell situation. Now, Hubbell had nothing to do, at least so far as it appeared, with Madison Guaranty. And what his crime was, or crimes were, had to do with defrauding his clients and submitting inflated billing, to the tune of about $300,000. Yet somebody thought that that was reachable as a related matter. So, if it was reachable as a related matter - as it was, it was through that omnibus clause - so when I came along six months later, and then six more months after that, saying, "I want jurisdiction as a related matter," I think Justice was looking to try and cut back on the expansion of that clause.

Do you believe that this administration, this Department of Justice, has had, overall, a growing suspicion of the utility of an independent counsel?

The answer to your question is, yes, they do have that belief and they've evidenced [that belief] through a series of leaks and through a series of statements in the press and in newspaper articles, magazine articles, the Attorney General is indicating her dissatisfaction with the crop of independent counsel and the ways that the statute works.

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 went up on the Hill and she supported reenactment of the statute. And she did so vigorously. She said she thought that it was very, very important, so that people continue to have confidence in government that the independent counsel statute be enacted.

OK, well, it took Congress a year, but they got to it a year later, they reenacted it. 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 a citizen and the government," right? And it is. I agree with those statements. But the problem is that the Attorney General doesn't like, and the administration doesn't like, the way it's working now.

Would you say that it is a reflection of that, that dimming enthusiasm for the statute, that the Attorney General did not, this past December, seek the appointment of another independent counsel in the matter of campaign finance?

I don't know that. Look, the point is this: The Attorney General has the absolute discretion to appoint an independent counsel or not. If she says no, there's no review at all from that, OK? She just has to be able to take the political heat. Now, you can't blame other independent counsels for what they turn up or don't turn up, or what they cost or don't cost. You can't point to that as an excuse for not appointing an independent counsel, if you're obligated to appoint it under the act. You're either obligated or you're not. Your past experience has not a damn thing to do with it. OK? So, she decided, for reasons best known to her, that she was not going to appoint an independent counsel. So be it. There's no review from that. But that's her decision....

If the independent counsel is out of control, or he's not doing his job, fire him. But don't say you're not going to do your statutory duty because there's been a bad experience.... I told her that in a letter I wrote. I said, "You think we're out of control, I'm out of control? Fire me."

Did she respond?



[At the beginning of your investigation into Blackley, you all go through the process of a prosecutorial team deciding [that there] is something... here that we need to pursue and to prosecute. Then what happened?

Shortly after I was appointed, I was meeting with the Public Integrity section as part of a get acquainted session.... At the time, one of the attorneys I was meeting with told me that the Inspector General was then conducting an investigation of Ron Blackley, who was then the chief of staff to Secretary Espy and in my judgment the second most powerful individual in the U.S.

Department of Agriculture, because his official job description describes him as the "alter ego" of the Secretary.... When the Public Integrity section told me about this investigation [into] Blackley, she said, "I just want to tell you as a matter of interest." I said, "Gee, I would think that is something that would fall under my jurisdiction... unless you are saying it doesn't because it hasn't resulted from my investigation, because it is prior to the time that I was appointed." That question was never answered and later on I got a report from the Inspector General that showed that it had concluded its investigation, and also learned that Public Integrity had declined to prosecute it. The matter lay there for a number of months thereafter. Then during the course of our investigation into other aspects unconnected with Blackley, his name came up again in connection with some changes in regulations that had occurred shortly after Blackley assumed his duties as Secretary and allegedly were discussed at meetings where the Secretary was present part of the time and so were some of the individual farmers from Mississippi who had agribusinesses who were adversely affected by the regulations and those regulations were subsequently changed. We began to take a new look at Blackley and by September, 1995, we had gotten some additional evidence through an individual who had worked at the USDA who had been incarcerated and he voluntarily came forward and said "Let me tell you about this." And he did.

So we began to focus again on Blackley and we thought we had developed enough information to show that Blackley was a link in the chain to Secretary Espy... and that it was important that we consider prosecuting him. We had investigative jurisdiction, but I wanted to ensure that we had prosecutorial jurisdiction, [so] that if we issued an indictment [and] we were challenged, we wouldn't have to re-litigate that anew before the district court. So we began informal discussions with the Department of Public Integrity to see whether they agreed that we had prosecutorial jurisdiction. When they didn't seem to agree, we then went to the Special Division and got the matter referred as a related matter....

And yet, Justice itself had not pressed forward with a prosecution.

Justice had not pressed forward with the prosecution. It had earlier declined to prosecute..., and they gave us no indication that if we didn't go forward, that they would. We thought that it was important that this avenue be explored because it seemed to us to have direct impact on our investigation of the Secretary.... The independent counsel statute, in 1987, had been amended to allow the independent counsel, if the matter was factually or procedurally connected with the investigation that the independent counsel was conducting, could go to the Special Division and ask the Special Division to refer it to him as a related matter.

Go to the court directly and bypass Justice?

You could go either way. You could either go to Justice and they could agree, and refer to you as a related matter, or you could go to the court directly.

We went to the court directly after Justice gave us an informal indication that it did not agree with what we thought was appropriate. The court ruled in our favor.... It was the first time there was a contest before this Special Division but it was not the first time an independent counsel had gone that route.

What had been the first time?

The first that I know about is Ken Starr. In September of 1994, just shortly before I was appointed, he went to the Special Division and obtained from it the referral as a related matter [of the] the Webb Hubbell criminal acts. Webb Hubbell's law firm, his partners, had apparently had brought to the independent counsel's attention the fact that Hubbell had bilked his law firm and their clients of about three hundred thousand dollars. I don't know the details, other than what I read in the newspapers, but... ultimately, Ken Starr, because it was referred to him as a related matter, investigated it and then indicted Hubbell in December of 1994.... He pleaded guilty and was sentenced to jail in June of '95 under a so-called "cooperation agreement" that he allegedly reached with Starr, where he was supposed to cooperate.

So in addition to everything else that was going on in that period of time when the newspapers and Time Magazine were reporting my investigation of Tyson... you had the specter of one of Arkansas' finest former State Supreme Court judges, the number three man in the Department of Justice, having been convicted of some heavy-duty felonies, and operating now on an obligation to cooperate with the government. So there was a lot for the Chief Executive in the White House to be concerned about at that time.


And a lot, presumably, for the Department of Justice, to be thinking about at just that moment?

I think so.... You may recall that shortly after the administration came in, took a while to find someone to appoint as Attorney General, because the first two candidates that the President was considering were unable to be confirmed.... So there was a sort of a void there. And Webb Hubbell was regarded by many people as being almost in charge. The de facto Attorney General. And for an independent prosecutor to come in, and this of course was after Janet Reno was appointed, but come in and be able to have jurisdiction to prosecute him, was something, I think, that gave the Justice Department a lot of concern.

So, by the time I come around a year later, when I'm dealing with Mr. Blackley, even though he was high in U.S.D.A., he was low on the totem pole of concerns for the Administration. It became a matter of principle, I believe with Justice. In my judgment... our negotiations with Public Integrity section pretty much convinced me that it wanted to be the gatekeeper for independent counsels. And it wanted to be able to control what new things the independent counsel might be looking at. And it was unhappy that the statute provided an independent counsel to go directly to the Special Division. Because that meant that Justice was not the ultimate gatekeeper.

I happen to know that the Department of Justice does see the Attorney General as being appropriately the gatekeeper. Why shouldn't the Attorney General be the gatekeeper?

Well, she should be the gatekeeper, and the Constitution requires that she be the gatekeeper, so far as the decision whether or not to request an independent counsel. And, two, identifying sufficient facts to the Special Division so that the Division can craft a jurisdictional order.... So she is the gatekeeper for those two events. Whether there should be an independent counsel, number one; and number two: what are the events that need to be investigated. And the Constitution requires that. Okay? Any separation of power requires that.

However, once you get into a matter that is factually and procedurally linked to the independent counsel's original jurisdiction, then because the statute commands the independent counsel to fully and completely investigate the subject matter, and all related matters, it's very often necessary for him to investigate things nobody ever thought about. And by giving the Special Division the opportunity to define those related matters, Congress was insuring that the independent counsel could fully investigate, not only the subject, but all related items to that subject. This is something that was anticipated by the authors of the statute back when it was passed. If you go back and you look at the legislative history, you'll see that in the Senate report there is a specific mention of the fact that very often when independent counsels are appointed, they discover things that were never anticipated by the appointing authority. They discover significant crimes, hither or yon, that need to be exposed and prosecuted, which never were within the contemplation of the parties. And Congress well knew that at the time they passed the Act and specifically noted it in the legislative reports.


One of the things you looked into was the suggestion that when the new administration comes into power in 1993, its new Secretary of Agriculture brings along with him a chief of staff named Ron Blackley from Mississippi into a Department of Agriculture that was at that very moment well along the road to considering poultry regulations that would have had significant impact on a producer of Tyson's size. I would like for you to give me some sense of what was at stake for Tyson and Tyson foods in the spring of 1993 in the matter of those poultry regulations.

Well, you are taking about regulations that have been referred to popularly as "zero tolerance" regulations. Because the regulations that concerned the amount of fecal contamination that could be on poultry as it was running through the inspection line. I really can't talk very much about that, because the zero tolerance issue is going to be touched upon in one of the upcoming prosecutions. But I can tell you that Mr. Blackley was keenly and intimately involved with the events which have been publicly reported, including stopping all work by USDA officials on further development of regulations relating to zero tolerance in March of 1993 and allegedly ordering that the [project] be pulled from the computers.

Do you believe you ever had any credible evidence of that, any assertion from any witness, any paperwork, any sworn testimony?

I can tell you that we believe that we have evidence that was incriminatory. The extent and nature of that evidence I am not prepared to talk about.

If you believe that, why go after Ron Blackley on [the false statement charges], on these narrow things...? If in fact a man has been involved in stymieing regulations that have a real impact on every American that goes to the supermarket, why not prosecute him on that?

Sometimes a federal prosecutor, any prosecutor, he has to pick and chose his battles. You chose what statutes you are going to prosecute someone on based upon what you believe you can conveniently and relatively easily prove without a long, protracted proceeding.... In Blackley's case the offenses we chose to prosecute him for were serious offenses which we thought could be proven relatively easily without getting involved in very prolonged, protracted litigation....

But that leaves the prosecution vulnerable to the charge "if you had had the goods on Ron Blackley, you would have prosecuted on that. You plainly did not have the goods so you get him on some technicality about false statements."

Lying to the government on three separate occasions to three different entities is hardly a technicality. It is a very serious offense. I don't know what these people in Washington think about [it], but lying is serious. 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 in programs to administer. These are people who are supposed to be absolutely beyond reproach, ok? And to have them think or suggest that lying is some sort of picayune or trivial offense, I suggest indicates that they have got their priorities backwards.

Now, to get to the specifics of the question, we have avoided in some instances, bringing charges that we thought we could prove just because of the protracted nature of the litigation that they might have resolved it.

We would have gotten stuck here in cases that would have taken months, perhaps, when we can prove the criminality of the individual, or the criminal acts of an individual, in a matter of days.



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