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  •   Widening of Espy Probe Is Criticized as Excessive

    By Serge F. Kovaleski
    Washington Post Staff Writer
    Thursday, February 9, 1995; Page A01

    In the five months that he has headed a criminal investigation of former agriculture secretary Mike Espy, Donald C. Smaltz has become one of the most controversial independent counsels since the first one was appointed 16 years ago.

    He has expanded his inquiry far beyond the question of whether Espy received illegal gifts from Tyson Foods Inc. and other firms regulated by the Agriculture Department. To the dismay of attorneys for Tyson and some witnesses in the case, he is delving deep into the poultry firm's sprawling operations and its ties to President Clinton, who is already facing an independent counsel investigation into Whitewater.

    Former Tyson employees say they've been questioned about whether Chairman Don Tyson sent cash payments to Clinton while he was Arkansas governor, the choking death of Tyson's brother in 1986, whether Tyson's son or any company executives ever used or trafficked in drugs, and whether firm representatives bribed Mexican officials. Several witnesses said they were asked few, if any, questions about Espy when called before a grand jury.

    The scope of the inquiry has led to growing complaints that Smaltz is exceeding his legal authority. In a sealed motion yesterday, lawyers for Tyson and a former company pilot asked a federal court judge to quash a subpoena to the pilot on the grounds that Smaltz is seeking information unrelated to the Espy matter.

    Equally disturbing to Smaltz's critics have been his public comments about the case. His remark that there was "a ring of truth" to a fired Tyson pilot's claim that in the 1980s he delivered cash intended for Clinton earned Smaltz a harsh letter from White House counsel Abner J. Mikva, a former federal appeals court judge.

    "This type of conduct goes directly against what I understand to be the proper behavior of a federal prosecutor," Mikva wrote in the Dec. 16 letter. "I had thought that federal prosecutors presented their evidence to grand juries . . . not through comments to the press."

    Smaltz's defenders counter that he is under attack mainly because he is doing his job -- aggressively pursuing allegations, no matter where they lead, using the deliberately broad powers given him by the three-judge panel that appointed him in September. Smaltz is tough and thorough, his supporters say, and he is not cowed by the fact that powerful people might decry the questions he is asking.

    "Don is one of the most tenacious litigators I have ever seen. He is inclined to use very aggressive tactics; that is not to say inappropriate tactics," said Michael L. Klowden, managing partner of the Los Angeles office of Morgan, Lewis & Bockius, where Smaltz worked from 1987 to 1992. "His normal inclination is to track something down to the end until he is either convinced that he has gotten what he is looking for or there is nothing to get."

    Still, perhaps out of concern that he has become too much of an issue, Smaltz has backed away from the press. The prosecutor who called a news conference last fall to introduce his staff no longer accepts reporters' calls; such inquiries are referred to a deputy independent counsel, who routinely declines to comment.

    The Espy inquiry is Smaltz's highest-profile case. The 58-year-old Los Angeles attorney has spent 28 years defending white-collar criminal defendants and corporate clients. He previously served for four years as a federal prosecutor in California.

    When he began his investigation, Justice Department officials suggested privately it would amount to little because the gifts that Espy accepted -- lodging, plane rides and sports tickets -- were so small. Smaltz, though, made it clear early on that he considered the allegations potentially quite serious.

    He has hired about 35 people who work out of an Alexandria office; he also has set up a smaller office in Springdale, Ark., near Tyson's headquarters. The staff includes six full-time lawyers and eight law enforcement agents -- from agencies like the FBI and the U.S. Customs Service. Among the attorneys are an ethics officer and Theodore S. Greenberg, an aggressive prosecutor who formerly headed the Justice Department's money-laundering section.

    As Smaltz has noted, the court order naming him as an independent prosecutor appears to give him a broad scope. It authorizes him to probe not just gratuities to Espy, but "other allegations or evidence of violation of any federal criminal law . . . by any organization or individual developed during the . . . investigation referred to above and connected with or arising out of that."

    But how much breadth he has is unclear. Independent counsels are generally given a lot of discretion because not enough is known at the outset of an investigation for the court to set reasonable boundaries, legal specialists said. "There is obviously room for abuse," said Irvin Nathan, former chair of the American Bar Association committee on the independent counsel statute. "But there are remedies."

    Defense attorneys can petition the court to quash independent counsels' subpoenas or ask the attorney general to remove them after a finding of special circumstances. For their part, the prosecutors can ask the court to broader their scope.

    Lawrence E. Walsh, whose costly, seven-year inquiry into the Iran-contra affair was roundly condemned by Republicans as uncontrolled, said that because some of the initial orders are ambiguous, they invite challenges by defense attorneys. "The independent counsel must take the broadest reasonable review of the language, as long as it is not arbitrary," he said. "Otherwise it becomes too difficult to get a foothold in the investigation."

    Smaltz's critics point to the language in the judges' order that stipulates allegations he investigates must be "connected with" the Espy case. They also cite a 1988 Supreme Court opinion that said matters an independent counsel probes must be "demonstrably related" to circumstances that led to the prosecutor's appointment.

    "My overall sense is that Smaltz is absolutely detached from his moorings and is just roaming around in search of some case that will, in his view, promote his ambitions," said Thomas C. Green, Tyson's Washington attorney.

    Rep. Jay Dickey (R-Ark.), whose district includes about 3,500 Tyson workers, said he plans to petition either Attorney General Janet Reno or the court to examine whether Smaltz has exceeded his bounds.

    Grand jury subpoenas issued in recent weeks show that Smaltz has not left the issue of gifts to Espy behind. One subpoena asks Tyson for all company documents related to Espy, the Agriculture Department, a department official who oversees poultry inspection and Epsy's girlfriend, who received a $2,000 scholarship from Tyson. The girlfriend, Patricia Dempsey, also received a subpoena for a wide range of documents, as did Jack L. Williams, Tyson's Washington lobbyist.

    Meanwhile, investigators for Smaltz traveled to San Juan last month to interview Gov. Pedro Rossello and others about whether Espy, at Tyson's request, pressed the governor to allow several million pounds of chicken into Puerto Rico.

    But Smaltz clearly is interested in much more than Espy. He told Time magazine in December that he "nearly fell off" his chair and "took over the questioning" when a fired Tyson pilot, Joseph Henrickson, alleged in an interview that he delivered envelopes of cash he believed were intended for then-Gov. Clinton, a longtime friend of Don Tyson. Henrickson said he flew the money from Tyson's headquarters to a Little Rock airstrip.

    In recent grand jury sessions, Smaltz and his staff have questioned a number of former Tyson pilots and employees of a Little Rock aviation company that services the planes about Henrickson's claim. Subpoenas asked the pilots to produce flight logs, passenger lists, personal notes, credit card receipts or any other documents relating to their employment at Tyson.

    Two pilots who testified said in interviews that none of the questions had to do specifically with Espy. They said they were asked to name political figures who have flown on Tyson's planes and if Clinton was one of them. The pilots said Smaltz wanted to know if they had ever carried large amounts of cash out of the country or whether Tyson representatives ever bribed customs or airport officials in Cabo San Lucas, a Mexican resort where Donald Tyson owns a house.

    "I thought this was going to be about the Espy stuff, but his name was never mentioned. He {Smaltz} did not even ask me if Espy had been on a plane," said one pilot, who declined to be named. Another witness said investigators asked him whether any Tyson officials ever used or sold drugs.

    Smaltz's team appears in part to be working off a list of 2,200 Tyson workers who have filed injury claims with the Arkansas Workers' Compensation Commission since 1990. Dorothy Carter, 58, a chicken packer who received workers' compensation for an elbow injury, said in an interview that two FBI agents came to her home to ask whether Don Tyson had ever given free chickens to USDA inspectors, had their cars cleaned or thrown a luncheon for them.

    Carter said that when she told the agents she had not heard of such things, they asked whether she had socialized with Don Tyson and if she knew his wife or his children or how his brother died.

    "It seemed like they were just hunting for something, anything," Carter said. "As they started to leave, one of them said it would be wasting taxpayer money if there was nothing there and that they would get off Don Tyson's back and leave him alone if they didn't find anything soon."

    © Copyright 1995 The Washington Post Company

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