The White House had early storm warnings about "the Marston affair."
One of President Carter's most prominent backers in Pennsylvania, former Pittsburgh Mayor Peter F. Flaherty, called Jan. 12 to report his misgivings. He tried to get Hamilton Jordan. He had to settle for White House counsel Robert Lipshutz. He's still shaking his head.
"I think he blew it," Flaherty says of Carter's insistence on getting rid of U.S. Attorney David W. Marston in the midst of a series of striking successful investigations of political corruption in the state. Now running for governor in a crowded field, Flaherty added unhappily of the Carter White House:
"It seems as though they just don't listen. They didn't even seem to want our advice."
That same day the White House got a call from Eugene Zack, a senior aide to Rep. Joshua Eilberg (D-Pa.), warningt that there were reports in the Philadelphia press about a federal investigation involving Eilberg, who is the Philadelphia congressman who was most vociferous about the need to replace Marston as U.S. attorney.
The most charitable critics call the Marston affair "the politics of maladroitness." Others, such as prominent Philadelphia lawyer Henry T. Reath, take a sterner view. He contends there is a plausible case to be made for the initiation of impeachment proceedings against Attorney General Griffin B. Bell.
To begin with, Reath points out, Carter, in his June 19, 1978, presentation to the Democratic Platform Committee, declared:
"All federal judges and prosecutors should be appointed strictly on the basis of merit without any consideration of political aspects or influence."
Carter, Reath says, cannot be held to account, except at the polls, for breaking that or any other campaign pledge. "But when his attorney general converts it into a legal statement under oath to a congressional committee," Reath argues, "that becomes a binding commitment. And if it was given with no intention of carrying it out because of prior oral agreement, that becomes false testimony."
Bell had promised the Senate Judiciary Committee at his confirmation hearings to give the "most careful consideration" to retention of U.S. attorneys on a merit basis - without revealing that he had already made a secret bargain with Chairman James O.Eastland (D-Miss.) to go along with patronage appointments.
Reath raised money for Carter before the crucial 1976 Pennsylvania primary that assured him the nomination. His call for impeacement reflects, to some extent, the depth of the anger here over Marston's ouster.
The White House's conduct of the Marston affair led to the formation here of a coalition of business, legal and civic leaders determined to head off the move. It provoked thousands of letters, telegrams and phone calls. On Thursday, the Philadelphia Inquirer published a special 20-page section on "the Marston affair."
"I haven't seen anything like that since World War II," quipped Flaherty. "There 's a lot of anger at what happened in the Justice Department and at the White House - especially anger at the way it's been botched. They really don't have a good feel for Pennsylvania."
Carter, in his press conference yesterday, reiterated that "I see nothing improper in the handling of the case."
Executive Director - Ian H. Lennox of Philadelphia's Citizen Crime Commission says Marston was a symbol: aggressive, outspoken, a capable administrator who gave solid support to the prosecutors of his Public Corruption Unit and new hope to reformers. The corruption here is still breathtaking, but there's been a change in the atmosphere. Lincoln Steffens nominated Philadelphia "the most corrupt and contented" city in the country in 1904.
Former Senate Watergate committee chief counsel Sam Dash, who served as district attorney here in the mid- 1950s, found no change in a 1976 Law Enforcement Assistance Administration-financed study of the death of the state-appointed special prosecutor's office in Philadelphia. The office had been shut down, he found, prematurely and violently, "destroyed by the action of powerful Pennsylvania public officials, some of whom were the targets of its investigations."
Philadelphia, Dash concluded, had made a "surrender to corruption."
Even before Marston's appointment, hopes for reform in Philadelphia were heightened by the arrival of FBI agent-in-charge Neil Welch, an innotive and outspoken lawman. He put a quick end here to the FBI's preoccupation with bad-check cases and mindless intelligence gathering.
Welch has 275 agents working under him in eastern and central Pennsylvania and 225 of them are assigned to tracking down organized-and white-collar crime. One of his special squads is devoted exclusively to state and local corruption; another to federal corruption cases.
"I never had so much fun in my life," Welch declares. 'It's like being a woddchopper in a virgin forest."
When the U.S. attorney's office became vacant in the spring of 1976, Marston, then an aide to Sen. Richard S. Schweiker (R-Pa.), told his boss he wanted the job. Schweiker winced but Marston won the appointment and quickly made political corruption his No. 1 priority, parallelling Welch's pioneering effort.
One of the first targets was the Republican "King of Chester" County, Theodore S. A. Rubino. Corruption in Pennsylvania is bipartisan.
"I got all kinds of hell from my Republican friends" about that case, Schweiker says, Marston "was going wherever he saw fit . . . Rubino's in the federal penitentiary in Lexington, Ky., right now."
The special prosecutor's office here expired Dec. 6, 1976, deprived of funds by the state legislature at the behest such a s House Speaker Herbert Fineman and Senate Appropriations Chairman Henry J. (Buddy) Cianfrani. Marston inherited files and aides.
With Carter's inauguration, Eilbert, a key member of the House Judiciary Committee, began clomoring for Marston's replacement, ostensibly on behalf of the Philadelphia area's ostensibly unified Democratic congressional delegation. According to records recently made available by the Justice Department, Eilberg called Bell 10 times in 1977 usually about Marston, starting Feb. 8.
Nothing happened. In June Fineman got two years for obstruction of justice in a federal case. The key witness testified to having been told that if only the trial could have been stalled until a Democratic administration took charge "it's going to be all over. They'll put guys (in the U.S. attorney's office) who are favorable . . . "
The next month, a Marston aide who had worked for the defunct special prosecutor sent him a memo about allegations of kickbacks and irregularities in the financing of a $65 million addition to Philadelphia's Hahnemann Hospital.
Essentially, according to informed sources, the memo asked "should we do anything about this?" Marston reportedly scribbled down the response: "Ask for an FBI investigation."
The bureau got busy with preliminary inquiries and intelligence efforts. By August, the head of Marston's public corruption unit, Allen Lieberman, told one of his superiors on a visit to Washington that they had "started an investigation of a transaction that might involve Elberg."
More details have surfaced since then. Eilberg's law firm, reportedly hired for the political clout it might exert in obtaining financing for the hospital project, is said to have collected more than $500,000 in legal fees from Hahnemann since 1975. Rep. Daniel J. Flood (D-Pa.) helped the hospital get a $14.5 million grant from a federal anti-poverty agency whose budget is supervised by Flood's House Appropriations subcommittee. According to The Inquierer, one of Eilberg's law partners worked with Flood aide Stephen Elko in drafting the appropriations rider that provided the unusual grant.
By early November, the FBI had embarked on interviews of former Hahnemann Hospital officials. Leiberman's unit formally opened a file Nov. 3. The next day, top Justice Department officials authorized a grant of immunity for Elko, who had just been convicted in federal court in Los Angeles for bribery.
He was expected to talk primarily about Flood, but also about Hahnemann Hospital. He has since proved, according to informed sources, to be quite talkative about Eilberg. The hospital investigation has now been shifted to Washington where Iko has been holding forth under the coaxing of John Dowd, head of the Justice Department's strike force there.
Something else happened on Nov. 4. After a long afternoon of orchestrations and explanations at a staff level, President Carter called Eilberg and agreed, at Eilberg's urging, to expedite the dismissal of the 35-year-old Marston. The President has said he had already ascertained that Bell was not going to reappoint Marston anyway.
Eilberg and his aides have insisted that nothing in particular inspired the congressman's protests on that particular day.
According to Gene Zack, Eilbergs chief aide, Eilberg had no idea Elko was about to be granted immunity from prosecution in any context. Eilberg simply decided to act out of "a massive sense of frustration" over Marston's continued tenure, Zack maintained.
The conversation with Carter, however, was no spur-of-the-moment chat. To pave the way, Zack called "an old, dear friend," White House congressional lobbyist Bill Cable, and accused Marston of seeking to rise to GOP elective office on Democratic corpses. Sympathetic, Cable sent note to the president suggesting he talk with Eilberg.
Carter then made the Nov. 4 call to Eilberg.
Within few weeks, it was plain, both at the Justice Department and here, that Eilberg was under investigation. Lieberman got a 10-hour briefing on the case Jan. 4 on a visit to Washington, where Elko was holding forth.
No matter. Bell appointed a committee to come up with suggested successors to Marston.
House Speaker Thomas P. (Tip) O'Neill Jr. (D-Mass.) asserted in Washington that Marston was "a Republican political animal who shouldn't have had the job in the fisrt place."
Pennsylvania Democrats like Pete Flaherty shuddered again, "when I heard Tip O'Neill say that, I winced and shook my head," Flaherty said. "Those things don't help . . . I remember telling Lipshutz (on jan 12): 'Don't let the president make a mistake on removing Marstin. He's getting bad advice.'"