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In the spring of 1995, Donald Smaltz and the Department of Justice were on a
collision course. Earlier in the year, the Attorney General, Janet Reno, had
denied Smaltz's effort to expand his investigation of Tyson Foods. But
Smaltz persisted, leading Tyson's lawyer, Tom Green, to file a complaint with
Reno, including a request that Smaltz be fired. Reno declined to do so.
However, when the Department of Justice asked Smaltz to respond to the
complaints raised by Green's June 12, letter, the independent counsel refused,
insisting that he would meet only with the Attorney General face-to-face to
discuss the matter. At the ensuing July 18, 1995 confrontation, Smaltz was
told to restrict his investigation of Tyson Foods to the allegations involving
Espy. Smaltz believes that political pressures played a role in curtailing
his investigation of Tyson.
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June 12, 1995
BY HAND DELIVERY
The Honorable Janet Reno
Attorney General of the United States
United States Department of Justice
10th and Pennsylvania Ave., N.W.
Washington, D.C. 20530
Re: Independent Counsel Donald Smaltz
Dear Attorney General Reno:
I represent Tyson Foods, Inc. in matters relating to the investigation
conducted by Independent Counsel Donald Smaltz. With complete appreciation for
the gravity of my request, I am writing to urge you to consider whether Mr.
Smaltz's persistent disregard for the limits of his investigatory authority
warrant his removal from office under 28 U.S.C. § 596(a)(1).
On August 8, 1994, you requested the appointment of an independent counsel to
conduct an investigation into whether former Agriculture Secretary Mike Espy
had accepted improper gratuities from persons with business before the
Department of Agriculture. The Special Division of the D.C. Circuit approved
that request and appointed Mr. Smaltz to investigate these charges. As you
know, the press has widely reported that Mr. Smaltz has expanded this modest
inquiry into a far-ranging investigation into issues that bear no discernible
relationship to the subject of your original request for an independent counsel
and, for that matter, no relationship to any subject that could ever give rise
to the appointment of an independent counsel. See Morrison v. Olson, 487 U.S.
6S4, 679 (1988).
Mr. Smaltz is well aware that his investigation far exceeds the terms of his
appointment. As the press has reported, several of the "witnesses" whom Mr.
Smaltz has summoned to testify before the grand jury have moved to quash their
subpoenas as unconstitutional expansions of Mr. Smaltz's investigatory
jurisdiction. Those motions are now pending in the U.S. District Court in the
District of Columbia, and the subpoenas have been stayed. Moreover, the press
has also reported that Mr. Smaltz, perhaps recognizing the validity of the
motions to quash, tried unsuccessfully to persuade you to request a formal
expansion of his jurisdiction.
Despite these developments, however, Mr. Smaltz has perpetuated -- and, in
fact, broadened -- the unconstitutional investigation that you refused to
legitimize. For example, according to press accounts, Mr. Smaltz took five
hours of grand jury testimony in mid-May on whether, in the 1980's, pilots for
Tyson Foods delivered cash-filled envelopes to the office of then-Governor Bill
Clinton. Such allegations (quite apart from their factual implausibility) have
no relevance to Mr. Smaltz's limited jurisdiction to investigate the charges
surrounding Mr. Espy's conduct. Indeed, Mr. Smaltz, although serving outside
the executive branch, now appears to view himself as the functional equivalent
of a United States Attorney, with plenary authority to investigate any
allegation of wrongdoing by private citizens, however far removed such
allegations may be from the subject matter that gave rise to his
appointment.
Mr. Smaltz's unauthorized expansion of his investigation carries very real
costs. First, dozens of individuals must appear and testify on matters that
would not be relevant to a properly constrained investigation of former
Secretary Espy's receipt of "gratuities." Second, all of the individuals and
companies involved as "targets" or "witnesses," are exposed to extraordinary
drains on their time and resource. in responding to this inappropriate use of
investigatory authority. Among others, Tyson Foods, its officers and employees,
and Mr. Espy must suffer the personal indignity of living for months -- if not
years -- under the cloud of an "investigation" that has broken loose from its
moorings.
Finally, and perhaps most important, allowing this investigation to range
freely, subject only to the limits of the Independent Counsel's imagination,
undermines both the integrity of the Independent Counsel Act and public
confidence in its evenhanded application. As you know, the purpose of that
statute is not simply to foreclose real or perceived Justice Department
"conflicts," but also to ensure a prompt and fair resolution of accusations
against high-level federal officials. An independent counsel betrays that
purpose where, as here, he expands his jurisdiction beyond the accusations
against the principal subject (e.g., Mr. Espy) and launches an extended probe
of parties (e.g., Tyson Foods) that the Justice Department itself is perfectly
capable of investigating -- it, in fact, an investigation were warranted at
all.
For these reasons, and for the reasons that follow, I would appreciate an
opportunity to meet with you to discuss whether Mr. Smaltz has acted with such
contempt for the constitutional limits on his investigatory authority that
there is "good cause" for removing him from office under 28 U.S.C. §
596(a)(1).
1. Mr. Smaltz was appointed under the Independent Counsel Reauthorization Act
of 1994. As you know, the Act authorizes a special three-judge court (the
"Special Division"), upon the application of the Attorney General, to appoint
an independent counsel to investigate allegations of criminal conduct in
certain defined circumstances. See 28 U.S.C. §§ 591 et sea.
Such appointments are appropriate only where the Justice Department -- faced,
for example, with allegations of misconduct involving high federal officials --
would confront conflict-of-interest charges if it undertook the investigation
itself. See 28 U.S.C. § 591(b) & (c). By contrast, the Act does not,
and constitutionally could not, authorize the appointment of an independent
counsel to investigate allegations about the conduct of private citizens. See
Morrison v. Olson, 487 U.S. 654, 679 (1988). Under basic separation-of-powers
principles, the authority to conduct such investigations belongs to the
executive branch alone. Id.
Moreover, as the Supreme Court has emphasized, an independent counsel appointed
under this Act must confine his investigation to "matters demonstrably related
to the factual circumstances that gave rise to the Attorney General's
investigation and request for the appointment of the independent counsel in the
particular case." Morrison v. Olson, 487 U.S. 654, 679 (1988); see also 28
U.S.C. § 593(a)(3). "The Supreme Court in Morrison called for more than a
relationship between events which is stretched far over time and factually
suspect. The relationship must be 'demonstrable,' that is, something which is
evident initially and without great leaps of logic." United States v. Secord,
725 F. Supp. 563, 567 (D.D.C. 1989); accord United States v. Wallach, 870 F.2d
902, 904 (2d Cir. 1989).
Here, in requesting the appointment of an independent counsel, you specifically
''recommended that the Special Division of the Court grant the independent
counsel jurisdiction to investigate Secretary Espy's possible violation of
federal criminal laws . . . by accepting gifts from organizations or
individuals regulated by the Department of Agriculture." See Attorney General's
Application to the Court Pursuant to 28 U.S.C. §592(c)(1) for the
Appointment of Independent Counsel ("Attorney General's Application"), at 5
(August 8, 1994).
The Special Division adopted, almost verbatim, your recommendation as to the
scope of the Independent Counsel's jurisdiction. In particular, the Special
Division authorized the Independent Counsel to investigate whether, while
serving as Secretary of Agriculture in 1993-94, Mr. Espy (or anyone else)
committed any criminal offense "relating in any way to the acceptance of gifts
by [Espy] from organizations or individuals with business pending before the
Department of Agriculture." Order Appointing Independent Counsel (D.C. Cir.
Div. for the Purpose of Appointing Independent counsels, Sept. 9, 1994), at 2
("Sept. 9 Order") (attached as Exh. A).
2. Despite the clarity of this jurisdictional charge, Mr. Smaltz has shifted
his investigation from the allegations involving Mr. Espy to unrelated
allegations concerning the activities of Tyson Foods and its officers in the
1980's. One telling example of this overreaching is the subpoena that Mr.
Smaltz served on Haskell Blake, a current Northwest Airlines employee who
worked for Tyson Foods 11 years ago as a pilot.
As the Los Angeles Times reported, and as I independently have verified, Mr.
Smaltz's investigators interviewed Mr. Blake on December 1S, 1994 and
repeatedly asked him:
whether, in the early 1980's, he had observed Don Tyson's son using
"dope;"
whether he had participated in a purported scheme to bribe Mexican officials;
and
most absurd of all, whether he had transported envelopes filled with cash
from Tyson Foods headquarters to the Little Rock office of then-Governor Bill
Clinton.
See "Counsel's Reach in Espy Inquiry Raises Outcry," L.A. Times, Dec. 24, 1994,
at A1, A12 (attached as Exh. B). As you may know, the latter "cash-to-Clinton"
story was based solely upon the allegations of a disgruntled former Tyson Foods
employee, Joe Henrickson, which has received some tabloid coverage. "Chicken
King's Ex-pilot Says Boss Feathered Clinton's Nest," N.Y. Post, Dec. 19, 1994,
at A20. Of course, out of the dozens of former and present Tyson Foods
employees interviewed regarding this absurd fabrication, not a single
individual has come forward to lend even circumstantial support to Mr.
Henrickson's story.
The Henrickson allegations, quite apart from their implausibility, bear no
imaginable relationship to any inquiry into whether Mr. Espy was offered, or
had accepted, any illegal gratuity. That, however, has not stopped Mr. Smaltz
either from focusing abundant investigative efforts on those allegations or
from publicly embracing the credibility of Mr. Henrickson's story. In an
interview with Time magazine, Mr. Smaltz publicly announced that the
"cash-to-Clinton" allegation "has a ring of truth to it," that "[i]t's very
high on my radar screen," and that he "nearly fell off my chair" upon first
hearing it in his interview of Henrickson. "On Fresh Ground," Time, December
26, 1994, at 111-12 (attached as Exh. C). And despite your reported refusal to
expand the scope of Mr. Smaltz's investigation, he devoted five hours of grand
jury time in mid-May to developing Mr. Henrickson's testimony on the
"cash-to-Clinton" allegations. See "Former Tyson Pilot Talks to Grand Jury,"
Morning News of Northwest Arkansas, May 19, 1995 (attached as Exh. D).
These are not isolated missteps. They are, instead, symptoms of an
unconstitutional investigation, detached from its jurisdictional foundation. A
number of the other topics that appear to be "very high" on the Independent
Counsel's "radar screen" include:
a subpoena to the Arkansas Workers Compensation Commission for the more than
2000 claims filed against Tyson Foods since 1990 -- part of the Independent
Counsel's fishing expedition for disgruntled Tyson Foods employees (see
Affidavit of Dorothy Carter (attached as Exh. E));
investigating contractual disputes between Tyson and contract growers
involving such issues as the "quality of feed" or the "inaccurate weighing of
birds;"
a subpoena to virtually every individual involved in Tyson's aviation
department, including persons such as Ken Gates -- a pilot who had not worked
for Tyson for 16 years (see Affidavit of Ken Gates (attached as Exh. F));
on-site inspections and interviews by Independent Counsel investigators at
Tyson processing plants; and investigating wholly unsubstantiated and inane
allegations that Don Tyson has been involved in drug trafficking.
See, e.g., "Angry Growers Find an Ear in Espy's Chief Investigator,"
Arkansas Democrat Gazette, Jan. 6, 1995; "Lingering Drug Claims Dog Tyson,"
Rocky Mountain News, Dec. 25, 1994; "Tyson Foods Fights To Keep Out of Espy
Investigation," N.Y. Times, Dec. 24, 1994, at A7; "Chickens Coming Home to
Roost," Atlanta Journal/Constitution, Dec. 18, 1994, at A3: "Poultry Empire
Under Scrutiny in Espy Inquiry," N.Y. Times, Dec. 10, 1994, at A1 (all attached
as Exh. G).[1]
3. The only common thread uniting these various subjects of Mr. Smaltz's
inquiries is the fact that they all have absolutely nothing to do with the
alleged gratuities given to Mr. Espy -- the one subject matter that Mr. Smaltz
is authorized to investigate. Indeed, not only does Mr. Smaltz's investigation
bear no "demonstrabl[e] relat[ion]" to the factual circumstances underlying
your request for his appointment, Morrison v. Olson, 487 U.S. 654, 679 (1988),
but, more fundamentally, it has veered into subject areas that, as a
constitutional and statutory matter, could not support the appointment of an
independent counsel. Id.
That is disquieting enough in itself, but most outrageous of all is Mr.
Smaltz's persistence in pursuing this course of action despite your denial of
his request for an expansion of his jurisdiction. Indeed, just in recent weeks,
Mr. Smaltz has continued to assert his investigative authority in connection
with matters wholly unrelated to his grant of jurisdiction. For example:
Mr. Smaltz recently issued a subpoena for Tyson Foods related files at the
Little Rock office of the Occupational Safety and Health Administration;
Mr. Smaltz has subpoenaed officials of Tyson Foods and the Arkansas Poultry
Federation for "[a]ll documents relating directly or indirectly" to, among
other things, all political contributions those organizations have made to "any
former or current public official"
and to "any political party." Subpoenas to grand jury witnesses as recently as
the past several weeks continue to demand documents on all political
contributions;
Mr. Smaltz has subpoenaed all records of the Arkansas Poultry Federation for
documents relating to "dealings with U.S. public officials . . . or foreign
government officials" and for documents relating to any "lobbying activities.'
with "any government, legislative or regulatory body."
Recent grand jury witnesses continue to be interrogated about matters that
could not possibly have any relevance to the authorized investigation,
including such subjects as:
The allegations that Tyson Foods ferried cash-filled envelopes to
then-Governor Clinton. Mr. Smaltz devoted five hours of grand jury time in
mid-May to Mr. Henrickson's allegations. See "Former Tyson Pilot Talks to Grand
Jury," Morning News of Northwest Arkansas, May 19, 1995 (attached as Exh.
D);
Contacts or conversations with Webb Hubbell, First Lady Hillary Clinton or
President Clinton, including whether Don Tyson ever provide} "gifts" or other
things of value to the-Clinton family or contributed to President Clinton's
various campaigns for Governor;
Hillary Clinton's earnings in the commodities market. And on May 25, 1995, a
grand jury witness was questioned whether Don Tyson used the James Blair/Hilary
Clinton commodities "fiasco" to "funnel" cash to Clinton;
Travel on Tyson Foods corporate aircraft by President Clinton (during his
terms as Governor of Arkansas), Senator Pryor, other members of Congress, or
"celebrities;"
The transportation and use of cash by Don Tyson, and by other executives and
family members, on vacations to Mexico;
The "bribery" of Mexican customs and immigration officials;
The alleged use or transportation of illegal narcotics on Tyson corporate
aircraft;
Whether Tyson Foods officials have ever procured "prostitute-," male or
female, for entertainment of corporate guests at corporate gatherings.
Obviously, your reported refusal to legitimize these investigatory tangents
has not deterred Mr. Smaltz from continuing to pursue them with vigor.
Mr. Smaltz's actions raise serious questions about his fitness to continue
serving as Independent Counsel. Never before, to my knowledge, has any
independent counsel manifested such willful disregard for the constitutional
boundaries of his office. And certainly no independent counsel has persisted in
conducting a lawless investigation that the Attorney General had specifically
refused to authorize. Mr. Smaltz continues to defy the limits that you and the
Special Division have tried to place on his authority, and he has sought -- so
far, unchecked -- to usurp the Justice Department's plenary authority to
enforce federal law.
For these reasons, I believe that there is more than "good cause" for you to
consider removing Mr. Smaltz from office pursuant to 28 U.S.C. §
596(a)(1). This is not a recommendation that I make lightly. Although I
recognize that no Attorney General has employed § 596(a)(1) before, I
believe that Mr. Smaltz's indefatigable contempt for the constitutional
limitations on his investigation present the rare case in which removal is
appropriate.
I hope that you will give me an opportunity to discuss this matter with you at
your earliest convenience. Thank you for your consideration.
[1] In light of these revelations, a United
States Congressman from Arkansas has publicly condemned the Independent Counsel
for exceeding his jurisdiction by fishing for unrelated evidence against Tyson.
See "Dickey Plans to Pluck Poultry Probe," Northwest Ark. Times, Jan. 24, 1995
(attached as Exh. H).
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