The U.S. attorney in Atlanta who dropped a criminal investigation of Bert Lance last December wanted to stay in office another year to collect his pension and didn't want to "make waves with the incoming administration," two of the prosecutor's aides testified yesterday.
After closing the case involving Lance and the Calhoun, Ga., First National Bank, the U.S. attorney, John W. Stokes, told an aide he should call "Jimmy and Bert" to tell them what he had done, the aide testified to a Senate committee.
Stokes, a Republican appointed in 1969 by President Nixon, acknowledged yesterday that he had hoped to stay in office another year to qualify for a pension. But he testified that he dropped the Lance case entirely on its merits, not for political reasons.
Stokes also said his decision to close the file on Lance was supported by his superiors at the Justice Department in Washington, including Richard Thornburgh, then the assistant attorney general in charge of the Criminal Division.
Stokes dropped the case on Dec. 2, the day before President-elect Carter announced his intention to name Lance director of the Office of Management and Budget.
This was a day after an attorney representing Lance, Sidney Smith, telephoned Stokes to ask him about the status of the case involving Lance, which was based on overdrafts of more than $150,000 the Calhoun bank permitted for two accounts of the 1974 Lance-for-governor campaign.
Stokes got this call after openly expressing his interest in staying on as U.S. attorney until November, 1977, so he would be eligible for a Civil Service pension. He had approached Georgia's senior senator, Herman E. Talmadge, to ask for help in that regard three days after Carter's election. Stokes testified yesterday. Talmadge told him his request would have to be dealt with by the new Carter administration.
The assistant U.S. attorney handling the Lance case under Stokes testified yesterday that he thought it was premature to drop the case on Dec. 2, because the prosecutors in Atlanta had never received oft-requested documentation important to their inquiries. But Stokes transferred the case from this assistant, Jeffrey Bogart, to himself, and then closed it.
Stokes testified yesterday that the decision to drop the case was not sudden - that Bogart, the assistant handling it, told him three months earlier, "that case is no good . . . I'm going to close the file."
Bogart, also in testimony yesterday, denied this flatly, and pointed to documents in the file which showed he was still pursuing the case actively in late November, a few days before Stokes dropped it.
Stokes acknowledge this flurry of activity in late November, and suggested that it might have been the product of a desire on Bogart's part to get some publicity by taking on a senior appointee to the new administration. (The first reports of Lance's impending appointment were published Nov. 24.)
Yesterday's testimony before the Senate Governmental Affairs Committee was the last before Lance testifies in his own defense. He is to do that beginning this morning at 10 a.m. (Channels 7, 9 and 26 will carry Lance'stestimony live, as will radio stations WTOP-AM and WETA-FM.)
Yesterday's hearing added to the list of accusations - stated or implicit - that Lance is likely to be questioned about during the twoor three days he will be before the committee.
Perhaps most significant was a suggestion by Sen. Charles H. Percy (R-Ill.) that the Calhoun First National Bank, of which Lance was chairman, lied to federal investigators to avoid responding to a subpoena for its records.
This charge came in the context of a hitherto-unpublicized inquiry into overdrafts by Lance and other directors of the Calhoun bank that was undertaken at the instigation of Bogart the assistant U.S. attorney.
Bogart was responsible for the prosecution of Billy Lee Campbell, an officer of the Calhoun Bank who emblezzled hundreds of thousands of dollarsfrom the Bank. In the course of investigating the Campbell case, an FBI agent, Richard Ramsby, discovered that Campbell and other bank officers had large overdrafts at the bank.
This discovery, Bogart testified yesterday, led him and Rambsy to believe that the overdrafts in the Lance-for-governor campaign accounts were only "the tip of the iceberg of a pattern of overdrafts by insiders" at the Calhoun bank.
This is what prompted the subpoena for bank records which the bank said it could not satisfy becausethe records requested were in the hands of the comptroller of the currency in Washington. Bogart accepted this explanation and wrote to Washington in early September, 1976, asking for them.
The letter went unanswered, Bogart said. Finally, in late November, he got on the telephone to try to track the records down. After he was bounced more than once between the Justice Department and comptroller's office, Bogart said, the comptroller's office finally acknowledged that it had the records, but then said a letter from Stokes, Bogart's boss, was needed to clear them for transmission to Atlanta.
Bogart testified that he thought he was getting "a runaround" in his search for these documents. In the end, Stokes never signed the letter requesting the documents, and they were never sent to Atlanta. And Stokes closed the file.
But Sen. Percy raised the possibility yesterday thatthe documents were in the Calhoun bank all along. He cited an affidavit on file with the Senate committee from a federal bank examiner saying that the comptroller's office never takes original documents out of a bank - only copies.
Reached by telephone in Calhoun, Y. Atkins Henderson, the current chairman of the First National Bank there, said last night he would have no comment on Percy's implied accusation.
Bogart testified that the brief documentary history of his abortive inquiry into the personal overdrafts of Calhoun bank directors was part of the file on the Lance campaign overdrafts that Stokes closed on Dec. 2, so in effect, Stokes closed off all pending inquires that might have led to Lance.
Stokes repeatedly denied yesterday that he had closed an inquiry into personal overdrafts. There was no such file, he contended.
However, a letter from the senior FBI agent in Atlanta entered into the Senate committee's record yesterday referred to an interview the FBI held with Stokes on Dec. 27 of last year, in which Stokes said he had dropped the inquiry into a personal overdrafts.
Stokes is now practicing law in Atlanta. He left the U.S. attorney's job on Aug. 12 - before he was eligible for a pension.
On another matter, Bogart, who prosecuted embezzler Campbell, agreed with Sen. Sam Nunn (D-Ga.) that there was no evidence that Lance played any part in the embezzlement from the Calhoun bank.
Earlier this month The Atlanta Constitution reported tha Campbell had charged to Senate investigators that Lance had been a party to his embezzling. No evidence has been brought forward to substantiate the charge.
Other testimony yesterday raised new questions about why Lance, as president of the National Bank of Georgia, arranged a $250,000 loan for Campbell shortly before his embezzling was discovered - a loan Campbell used to pay debts to the Calhoun bank.
According to a new document provided to the Senate by the comptroller, Lance, as chairman of the Calhoun bank, should have had repeated warnings that Campbell was making questionable loans. Federal bank examiners criticized loans made Campbell in 1972, 1973, 1974 and 1975, according to the new document.
Under questioning by senators as the hearing moved past nightfall, Stokes said he couldn't recall every saying that he "should tell Bert and Jimmy" about dropping the investigation, but he didn't dispute the quotation.
"If I said it, I said it in jest," he insisted. "To me, Jimmy Carter is President of the United States or Georgia. He's not Jimmy."
He also said he didn't refer to "making waves" with the new administration, as one aidetestified he did.
In the end, Stoke's hopes of finishing20 years of government service were disappointed, but not for lack of a helping hand from Attorney General GriffinB. Bell. Stokes said Bell "called me up on the phone" last spring and suggested that Stokes could step aside for a new U.S. attorney (William Harper) but stay on as an assistant U.S. attorney until his pension was secure.
"He [Bell] said, 'I think we get the thing just about worked out,'" Stokes recalled.
Interjected Sen. H. John Heinz III (R-Pa.), "Obviously Judge Bell was paying personal attention to this."
Despite the assist, Stokes learned that he would not be eligible for a pension until are 60. He could have gotten it right away only if he had been dropped from government service "involuntarily" after completing his 20 years.
"This came as a real shock to me" he said. He left the U. S. attorneys office last month after spending a few final weeks there as an assistant prosecutor under the new incumbent Harper.