Interview: Donald Smaltz



But Henrickson had given you a lead that you felt obliged to pursue... that Don Tyson may, in fact, have a pattern of paying off public officials. What's the next step?

We then decided - at least so far as this particular vein of inquiry was concerned, based upon that information - we'd see whether or not there were any other pilots who would confirm that information. So, we began interviewing them.

And was it fruitful?

It was not fruitful. But before that happened, a Time Magazine reporter by the name of Richard Behar got a hold of the letter of immunity that I had given to Henrickson.

I tried not to talk to the press unless I was able to tell them about, "Look, here's who we added to our attorney staff," things like that. But I had gotten this call for three or four days in a row from this fellow by the name of Richard Beyhar at Time Magazine, saying he must talk. And I didn't want to talk to him. Finally, the message was, "You must talk to me. I have a matter of the utmost urgency."

So, I returned his call. And he then demonstrated to me that he had a copy of the letter, because he faxed it to me. Since [there were] only [the] original and one copy, and the witness, Henrickson, had the original, and the FBI agent who had been down there with me, had the other copy, it was obvious that he had a track that we didn't have. So, I agreed to meet with him. And I thought the conversation was off the record. I wanted to prevent him from publishing his story until we had an opportunity to get out in front of the story and interview the pilots or the other individuals that Henrickson named, who may have some knowledge.

In the event, of course, he did publish. And what was the effect of that, the story?

I think we got one or maybe two pilots interviewed before the Time Magazine story broke. And that announced the fact that we were investigating this, it explained what Henrickson had told us, and it identified other individuals. What had happened was that Richard Behar of Time had gotten way out ahead of the story. It turned out he had talked to Henrickson in October. We didn't get to Joe Henrickson until November. He had already made an effort to interview many of the pilots, or some of them, and was attempting to interview all of them....

He published his story and the effect was what?

That caused a fire storm to break. I was accused of all sorts of chicanery, violating my oath, and being out of control, picking on Tyson's, investigating the President. None of that, in my judgment, was true. I was attempting to run down a lead that had been given us by a source that, at least at that stage, appeared to be credible.

And what effect does such a fire storm have on your pursuit of this lead?

It pretty much closed us down, as a practical matter. By the time that we got around to the witnesses, they all knew the allegations, discussed among themselves what we knew and what they knew and what they didn't know. And it effectively, I think, foreclosed us, at least at that moment.


You developed other leads and continued to develop the case. And came to believe that there was a whole area there that was ripe for inquiry. And you approached the Justice Department?

I sent a letter to the Attorney General seeking to expand my jurisdiction to specifically include Tyson and Tyson-related activities, or alternatively, to refer the Tyson matter to me as a related matter. An independent counsel, if he comes upon information that he believes is related to his investigation, or if he believes it's entirely new, can go to the Justice Department. And if it's new information and a whole new matter, the Attorney General can file an application with the Special Division and expand your jurisdiction. Alternatively, she can refer it to you as a related matter.

And by this time, in early 1995, has Tyson begun to respond to this effort at all?

Oh, sure. There was a tremendous PR response which, I think, beat the Time Magazine edition to the newsstands. Tyson's has a tremendous publicity machine, and they use it very effectively, and they did there. So, that had started. [And] they had gotten their congressman, a fellow by the name of Dickey, to come to the Justice Department and seek to rein me in, or curtail my investigation.... I'm told that Congressman Dickey, among other people, went to various senators here on the Hill seeking to get their support to say that "Tyson's hired a lot of people and paid this money and how dare I investigate it?"

And, meanwhile, you're asking the Attorney General basically to endorse this what you consider very legitimate line of inquiry. What was her answer?

She refused to either expand my jurisdiction or to refer matters that we were looking at as a related matter.

Did that surprise you?

It did, yeah. It did.


These entities began to concentrate and focus their efforts to resist you in the March to July period of 1995. What could it have been that they sensed you were getting on to?

My sense is that they were concerned that we would begin to get a sense of the full nature and extent of their activities and that might reveal that this method of giving gratuities to those regulators who had issues in front of them was a regular part of the way that they did business, and that it was just not limited to this particular Secretary or this particular administration but was part of the corporate culture of doing business with the government, and I think that was very much of a concern. I think that was something that they did not want us to be able to expose....

I don't think we ever really got as far as we wanted to get. We did sort of pull back our investigation. We had a lot of attacks to defend against. It took a lot of time and energy. By and large, the opponents of the investigation, while they made a lot of noise and they made a lot of claims in front of the district court that was supervising the grand jury, were almost totally unsuccessful, but nonetheless it slowed us down. It slowed our investigative efforts down. It slowed the responses and the productions to our subpoenas down because every time a subpoena was challenged, the court had to permit a briefing schedule, had to allow time for argument and to allow time for it to come to a decision, and time is a commodity that the independent counsel doesn't have, because its constant critics are quick to complain about the length of time he is working on investigation and the amount of money it is costing. But every time you delay an independent counsel by opposing a subpoena or refusing to produce documents that you are required to produce and force the independent to go to court, that takes time.

What were these opponents trying to do?

I think they were trying to run me out of town. I think they felt that if they could discredit my investigation that I would be forced to close up shop and sort of slink out of Washington....

During this period when you were under attack... there was a pretty constant barrage in the press, and various people called you various names, from "the Energizer bunny," I think, [to] Lloyd Cutler speaking out of the White House, saying of you, "It must be something in the water out there in LA."

He also called me "somebody who didn't know much about federal prosecutions."


What do you think about that? Direct criticism from the White House?

I think it is unfortunate, but this was part of a coordinated effort. At the time those criticisms were made, there were four independent counsels floating around. There was Starr, Smaltz, Barrett and Pearson. The White House was very concerned about what they were going to turn up.... It seems to me since I was at the time more visible than some of my colleagues, that I was a very easy target. In fact, the President of the United States, in a press conference in March of 1995 told the assembled multitudes that I was investigating a former cabinet official who didn't do anything wrong except for taking a couple of football tickets, [and that] the cabinet official resigned and now I have 35 lawyers and an historian [on my staff], which was the grossest distortion of the truth. But that was, in my judgment and opinion, a false accusation that emanated directly from Tyson.

So it was pretty plain to you, at least in this regard, that Tyson and the White House were in union.

No doubt about it in my mind.

January, 1995, you write a letter to the Attorney General formally asking expansion to look into the Tyson piece. Shortly thereafter, the Attorney General says no to you in the form of a letter. So, does that mean you stop right then looking into the Tyson piece of this investigation?

No, we were still investigating whether or not Tyson's had a practice or a pattern of giving gratuities to public officials, in an effort to get a better handle on the nature of the things that they gave to the Secretary of Agriculture.

We felt that we had the authority to clearly do that, since that type of evidence is relevant to prove motive in giving gifts, to prove intent in giving gifts, to prove knowledge this wasn't given... just because you wanted to slap somebody on the back and say, "Hi, neighbor." So we were trying to see if indeed it was a pattern.

Nevertheless, the Attorney General in January, 1995, had denied your request for expansion into the Tyson piece of it. It would become clear to her over the course of the next weeks and months that you apparently didn't get the message that she intended to send.

Well, I wasn't attempting to be disrespectful, but, really, I had the jurisdiction to conduct the investigation. By asking her either for an expansion or a referral as a related matter, I was merely seeking, in the latter instance, to get confirmation that it was foursquare within my prosecutorial mandate, as opposed to my investigative mandate. I mean, I could investigate it. Whether or not I could bring indictments was another question, and I was trying to get that resolved at the front end, rather than later in the investigation. So I continued to investigate Tyson's activities, and its largesse in giving things of value to other public officials, to the best that we could, through the grand jury.


In July of '95, [after Reno has formally denied your request for expansion of jurisdiction or referral of the Tyson matter] you actually appear at the Department of Justice, for a meeting with the Attorney General. A couple of things about that. Who requested that meeting?

What had happened was the Department of Justice wanted me to respond in writing to various allegations of improprieties raised by the defense counsel. I refused to do that. I don't send defense counsel letters. And I'm sure as hell not going to report to the Attorney General about accusations made by defense counsel, when I know that they are without foundation and fact; and they are politically motivated, politically inspired in an effort to kill the investigation. I'm not going to play that ball game. So I refuse to do that.

I said that I would, however, meet with the Attorney General and talk to her one-on-one. I said I would not meet with the surrogates there because I was concerned about leaks. Up to that time remember we had leaks of my request to the Attorney General, for either an expansion or a referral of Tyson's as a related matter. Within a week after that response was sent to me, it was leaked to the press....

What was your reaction to that?

I was furious. I went to the office, I would've fired anyone in this office, whoever did that. And I know none of my agents or none of the lawyers or none of the staff would have ever done that....

You convinced yourself that it wasn't coming from your office.

I know damn well it did not come from this office.

Did you have any reason otherwise, then, to suspect that it was coming from Justice or from perhaps the White House?

My sense was that it came from the White House, but I can't prove it. Came from Justice to the White House.

What gave you that sense?

The timing of the leak, the spin that was put on it. That was some time in February of 1995; within three weeks thereafter the President of the United States had a news conference, falsely stated that in connection with the Espy investigation, I had 33 lawyers on my payroll and a historian. That was just totally and unequivocally false.

Where could that have come from?

Well, I have my theory, and I think it came from Tyson's. And I'll tell you how it worked. In December of 1994, we were down in Arkansas and the Tyson publicity mill was starting to put out the false statements about our investigation, and about being out of control. I got a call one day from a New York Times reporter by the name of Dave Johnson. And he asked me if it was true that I had 33 agents in Fayetteville. And I said, "Absolutely not." I said, "Where'd you get that idea?" And he said, "Well," he said, "I got it from Tyson's." I said, "What do you mean you got it from Tyson's?" He said, "They said that you have so many agents down in Fayetteville that you've leased up all the cars, and there are no cars to lease, so that parents coming down to visit their children at the University of Arkansas can't rent a car, all because of you."

And I said, "David," I said, "that's totally false." At that time, I think maybe I had one or two agents [In Fayetteville]. I'm not even sure that I had that many in Arkansas.

So, the number 33 resonated with me when I later heard, a couple of months later, coming from no less than the President of the United States, again, in a totally false context.

So, the Justice Department might be leaking this internal document, this letter from the Attorney General to an independent counsel, to the effect that it hampers your undertaking down in Arkansas, and the target, the subject, of this inquiry might be, in fact, in communication on the other side with the White House. And the totality of this is to basically work against your investigation. Is that not almost recklessly inappropriate behavior on the part of this Justice Department?

It's absolutely inappropriate.... But what you do is you just keep on slogging with your investigation and do the best you can. I was in no position to accuse the Justice Department or anyone else, and with absolute certainty, that they had been the entity that leaked. But I did make a request immediately to the Office of Professional Responsibility to conduct an investigation from their end. And I put some of the FBI agents assigned to my unit on it on this end, to see what we could learn.

What was the outcome of that?

You just don't learn who leaked things in this town. And I know, certainly, that this office did not. And the only other person or entity that had a copy of the letter, to my knowledge, was the Department of Justice. That's where the letter came from. It had to be Justice or somebody in the White House.


Don Tyson's lawyer, Mr. Tom Green, wrote a letter to the Attorney General, in which he expressly asks that the Attorney General fire Donald Smaltz. Are you telling me that the Department of Justice and the Attorney General of the United States then asked you to respond to that letter?

[She wanted] my response in writing to those allegations.... I said I'll meet with the Attorney General. And I showed up... I took only Ted Greenberg with me..., because I didn't want to have too many people. I took Ted because Ted had been with the department twenty-three years, and he had a sense about how these things worked and what the dynamics would be....

But I thought it would just be a meeting of perhaps the Attorney General and one or two others. Instead, it was far more than that. It was the Attorney General; the Deputy Attorney General, Jamie Gorelick; it was the Chief of the Criminal Division; the Assistant Attorney General, Jo Ann Harris; it was her deputy... it was Lee Radek, head of the Public Integrity section; and Jo Ann Farrington.... It was the entire upper echelon of the Criminal Division of the Justice Department.

At a moment when on Capitol Hill they were beginning Waco hearings, they had Ruby Ridge hearings, you had the former number three man at Justice in jail, you had any number of very serious pressing matters. In fact, Oklahoma City had been bombed. They were gearing up the beginning of that prosecution. What was their big concern with Donald Smaltz?

I never could figure it out... I never really knew... I don't know why they were so concerned about me. In fact, it mystified me. But I felt that they really put a full court press to bring that many people to a meeting for little ol' me. I mean, I am an inconsequential drop-in-the-bucket in the scheme of things. My only perception was [that] I had a sense here that this was a gigantic effort to squash me into submission, and make sure that I don't attempt to re-open a number of avenues of the Tyson investigation.

It's your memory that the conclusion reached that day and conveyed to you that day was that Tyson is closed to you.

Other than the issue of gratuities, Tyson was closed....

So, in essence, that letter right there from Don Tyson's lawyer complaining about you, insisting that you be fired, is what precipitated the meeting between you and the Attorney General... the result of that meeting was no Don Tyson for Don Smaltz?

Yes, [although] we still had the gratuities piece and we pursued it.

But the Henrickson avenues, the former pilot, Tyson as the giver of big gifts, the pattern of behavior... that avenue was closed down....

What effectively got shut down pretty much is the efforts to go much beyond the immediate vicinity of Mr. Espy, as far as recipients of Tyson's largesse.

Do you know what, if anything, Justice has done with that piece of the investigation?

To my knowledge they haven't done anything with it.... I think it's buried.

How did you feel about the fact that you're investigating Don Tyson, Don Tyson's lawyer writes a letter to the Attorney General demanding that you be fired, and she asks you to respond to him?

That's what I refused to do. I said I was not going to get into a situation where I'm going to respond to every defense counsel that writes a letter [with] accusations of impropriety, because I could be so busy responding to frivolous accusations that we'd never have any time for the investigation. I just don't do that.

What was the dynamic at work there, though? What did that say about the Department of Justice's view of its relationship to this independent counsel?

Well, the lawyers who were representing Tyson Foods... have a tremendous amount of influence in this town, and that they were able to get the Attorney General's attention on this was a rather astounding proposition to me. I'm an outsider here in Washington... it's like having the defense counsel writing letters to the U.S. Attorney in Los Angeles. Well, defense counsel can write all the letters they want, but very few times is one of the Assistant U.S. Attorneys going to be ordered to respond in writing to those. So it was a new experience but I just felt, well, that's part of the political game here. I mean, that's the way things seem to be done in Washington.

When their concern about your continuing investigation became clear, as manifest in that meeting where the door is basically slammed shut on the Tyson piece of it, what do you think they were worried about? They knew that the "money to Clinton" piece was still on the table. Was that what so concerned them, do you think?

I think it could have been a couple of things. One could have been the fact that the cash to Clinton from Tyson was an item that was still out there, and apparently unresolved. A second might have been the fact that, having been denied by the Attorney General for an expansion of my jurisdiction, I might now go to the Special Division and ask the division to refer a more complete look at Tyson's largesse, as a related matter.



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