Informant (51 page)

“Well,’’ Killham said, “we’ll see Whitacre, and we’ll get some clarification.’’

Waxman sat up. “No, don’t contact Whitacre. Look, a few hours ago, nobody knew anything about this, and now it’s a crisis. Let’s wait until we figure out where we are.’’

“Wait a minute,’’ Killham objected. “It’s important for us to reach out to this guy. We’ve been involved with him for more than two years. He’s emotionally very shaky, and he needs our support. We just can’t cut him off.’’

“I hear you,’’ Waxman said. “But my decision stands. This is a criminal matter now. But we’ll revisit this.’’

“This is a mistake,’’ Killham said emphatically. “I think you’re wrong.’’

Don Mackay stifled a smile. He didn’t know who Killham was but had to give her credit. Here she was, talking to an Associate Deputy Attorney General, and she wasn’t intimidated in the least. That took guts.

“All right,’’ Waxman said a minute later. “Thank you for your input.’’

He disconnected the call.

In Springfield the supervisors sat in Stukey’s office and fumed.
What is this? Why are they saying agents may be involved? Why are they keeping information from us?

Hoyt was the most outraged, in a white-hot fury. From the case’s earliest days, he had been angling for the Criminal Division of the Justice Department to take over. But no one would give him the time of day.

Now, some high-powered Washington lawyers—from the firm representing President Clinton—come in with half-baked allegations of agent wrongdoing. And Justice falls all over itself to take the case into the criminal realm.

Hoyt shook his head. He was convinced that those people in Washington didn’t know what they were doing.

After hanging up with Springfield, there was one main question for the Justice Department lawyers: Who should prosecute Mark Whitacre?

To Scott Lassar, the problem seemed modest. Cooperating witnesses usually get jammed up in criminal activity; experienced prosecutors faced the same problem all the time. At that very moment, his office was wrapping up a major public corruption investigation involving someone who had committed a series of crimes while working for the FBI. The prosecutors were planning to plead out the witness, then use him at trial. It was not a big deal. In fact, in Harvest King, Lassar figured that Whitacre might even be a better witness if a jury knew he was serving time and hadn’t been let off the hook completely.

“My position is, before we start dividing up the case, why don’t we ask Whitacre about this?’’ Lassar said from a far end of the table. “Maybe he’ll admit to it; then we’ll prosecute him for it in Chicago, and we’ll proceed.’’

“Hold on,’’ Waxman said. “Let’s find out some more of the facts here first.’’ The allegations against the agents in particular had to be examined. Everyone needed to know now if there was a problem at the FBI, one way or another.

“I know Whitacre’s lawyer, Jim Epstein,’’ Lassar said in a nasal voice. “He’s a good lawyer and a reasonable guy. I can get in contact with him, get something going.’’

Mary Spearing didn’t like what she heard. This case sounded as if it would be great for her section, but Lassar struck her as too eager to paper over the problem in order to salvage Harvest King. She needed him out of the way.

“It would look better if a separate group investigated Whitacre,’’ she said. “That way, there are no conflicts. Everyone will be able to have faith in the results.’’

Some of the lawyers in the room were struck by the direction of the conversation. If the Williams & Connolly allegations were right, the crime took place in the Central District of Illinois. Technically, the case belonged to Frances Hulin, the United States Attorney there—not Chicago, not Washington. But no one even mentioned Hulin as a possibility. This case was already in a different realm.

As the meeting progressed, the lawyers wore down. Anne Bingaman, head of the Antitrust Division, at one point paced the room, wheezing and looking pale. She excused herself, heading back to her office.

The meeting ended late, with no final decision. But as the prosecutors filed out of the conference room, Mary Spearing was certain of one thing: She wanted her section to handle this case. She wanted it badly.

It had been a lousy day to start vacation.

Herndon had driven with his family to the southeast, to sightsee and visit friends. That day, they had traveled to Oxford, Mississippi, where the Herndons planned to stay with an old friend who was the new chief at the local FBI office.

On the way that Thursday afternoon, Herndon saw a Holiday Inn off the road. It seemed a good place to freshen up, change the baby’s diapers, and check in with the office. Herndon parked the car. His wife, Raelene, took their daughter to the rest room while he carried his notebook to a pay phone. He called Kate Killham, his supervisor.

“Kate, it’s Bob. What’s going on?’’

“It’s not good,’’ Killham said.

Herndon listened as Killham described the allegations about the theft of $2.5 million. He wrote down some of the words in his notebook, feeling his anger well up again.

Million.
Law-enforcement judges fraud by dollar amounts, and Whitacre had just crossed into the big leagues.

Two and a half million dollars.

Herndon thought about all those speeches he had given at the FBI about protecting Whitacre financially, the times he had showed the picture of Whitacre’s family to gain sympathy for him. The phone calls and the meetings where Whitacre had pressed for money from the Bureau, even pressed for the government to buy his house. And he’s got millions tucked away? What was wrong with this guy?

Herndon asked a few questions, but Killham had few answers. By the time he hung up, Raelene was already back in the car. Herndon joined her quickly. The motor was running, and the air conditioning was on.

“It’s now two and a half million dollars,’’ he said to his wife. He explained the details.

“This guy’s just unbelievable,’’ Raelene said. “He’s so self-destructive.’’

“Yeah,’’ Herndon said. “What’s next?’’

He shook his head and took a breath.

“You know, this guy’s already ruined my case,’’ he said. “I’m not going to let him ruin my vacation, too.’’

He put the car in gear and pulled out of the lot.

The next morning at 7:10, Seth Waxman was at his desk when a call came through from Aubrey Daniel. He wanted to bring over some documents related to the Whitacre situation. Waxman invited the lawyer to stop by.

Daniel arrived in fifteen minutes, accompanied by Barry Simon and a note-taker. Daniel handed a three-ring notebook to Waxman and proceeded to explain the documents it included. Most of the records related to the $2.5 million transaction in the name of ABP.

“This is a lay-down case,’’ Simon said. “You could indict this very quickly.’’

Daniel added that the firm had already obtained other documents relating to ABP and to other crimes. But they were not ready to share that information.

“When would you be?’’ Waxman asked.

Simon spoke up. “Once we’re contacted by a prosecutor handling this case, and we’re sure that the information won’t be going back to Whitacre’s FBI handlers,’’ he said. “We suspect they’re complicit in Whitacre’s misconduct.’’

“We received an anonymous letter,’’ Daniel said. “It clearly states that Whitacre deposited large sums of money into a Caymans account with the complicity of the FBI.’’

“Could we see that letter?’’

Daniel shook his head. “Not at this time.’’

The Williams & Connolly lawyers asked for a commitment that a prosecutor would be contacting them by the following week. Waxman replied only that the department intended to look into the matter promptly.

“In light of this, the department should look at the whole investigation,’’ Daniel said, “including how it began and how the FBI related to Whitacre.’’

Waxman said nothing.

“We would like the department to come to a prompt determination about whether the antitrust investigation of ADM will continue,’’ Daniel added.

“We’ll pursue all allegations of wrongdoing,’’ Waxman replied. “I can’t commit to more than that.’’

As the meeting ended, Waxman was presented with a receipt to sign, to prove that Williams & Connolly had provided the records. Waxman picked up a black pen and signed, then escorted the lawyers to the door.

“By the way,’’ Daniel said, “we’ve received some written threats from an organization called the Lamet Vov. I’ve provided some of them to Jim Griffin but haven’t heard back. We’re taking it seriously and would like a response.’’

Waxman nodded. “I’ll make some inquiries.’’

The lawyers left the office at 7:50. Waxman hurried to his desk and wrote down everything the lawyers had said.

“What are they accusing me of?’’ Shepard asked sharply, shock framing his face. “What are the specifics?’’

Hoyt shook his head. “I don’t know, Brian,’’ he said. “They won’t tell me.’’

It was early the next morning, a Friday. Hoyt had asked Killham and Shepard to his office to discuss the previous day’s call with the Justice Department. Hoyt was still simmering about the treatment he and his agents had received. Now, just as Hoyt had expected, the sniping from Washington was taking its toll on Shepard.

“Look, if they don’t trust me, take me off the case!’’ Shepard snapped angrily.

“Brian, I understand how you feel,’’ Hoyt said. “But let’s think about this before we do anything.’’

Shepard paced. “How can they accuse me?’’ he said. “This makes no sense.’’

Hoyt was at a loss for words. Since the previous day’s call, he had concluded that this “agent wrongdoing’’ allegation was almost certainly just a defense ploy; the law firm had probably developed a nickel’s worth of information and used it to make fifty dollars’ worth of accusations. He was sure it was designed to drive a wedge between the agents, the prosecutors, and the witness—all for the purpose of derailing the price-fixing case. And it was working.

Shepard flopped into a chair, looking spent.

“How can I not contact Whitacre?’’ he asked. “The guy’s a basket case. How can I not talk to him?’’

“That’s what they’re telling us to do,’’ Hoyt responded.

“John, I’ve already got calls from him. He’s left messages. Am I supposed to ignore him?’’

Hoyt sat back in his chair. This whole situation was absurd. The FBI didn’t just cut off sources. For all they knew, maybe ADM was setting them up so that Whitacre would see the FBI as the enemy and start helping the company.

“All right, Brian,’’ Hoyt said. “Don’t call him back. But if he calls you, you can listen to him.’’

That wasn’t good enough. Whitacre had to be told why, Shepard said, in person. It was the right thing to do.

Finally, Hoyt relented. Shepard could go visit Whitacre to explain that they could no longer talk. Killham was ordered to ride along, to ensure that there was a witness to the conversation. There would be no discussions of the case, no instructions given. That way, Hoyt figured, they could argue later that they had followed the spirit of Waxman’s instructions, even if they had ignored the letter.

That same morning, Mary Spearing was getting worried. The grapevine was already buzzing with the word that Lassar might be allowed to pursue the case against Whitacre. The only way that the Fraud Section would win a role in this headline-making case was if somebody pushed.

After discussing the situation with Don Mackay, Spearing picked up the phone and called Waxman. She explained that she strongly believed Whitacre should not be prosecuted by anyone involved in the price-fixing case.

“The big issue here is the appearance of propriety,’’ Spearing said. The key witness in a major antitrust case had been found embezzling from the target. Anything the prosecutors on that case did would be suspect.

“They’d be open to exposure for being unduly harsh to the informant or being unduly lenient,’’ Spearing said. “Somebody needs to handle this who is truly independent, to maintain public confidence in the results.’’

At one point, Spearing added a new wrinkle to the logic. Williams & Connolly was raising concerns of possible wrongdoing by the agents in Harvest King. They had made it clear that they would not cooperate unless they were assured those agents were cut out of the case.

What was needed, she argued, was a “Chinese wall,’’ a sharp restriction in the flow of information to anyone in Harvest King. Whatever emerged from the investigation of Whitacre would be kept secret from them; they would be forbidden from seeing documents or interviewing witnesses.

Eventually, Spearing got the decision she wanted. The criminal investigation of Whitacre was assigned to the Fraud Section. On top of that, the Chinese wall was put into place. No information was to be shared with the case agents from Harvest King—or, to Spearing’s delight, with Scott Lassar. No one would be able to meddle with the investigation. They could simply ignore the price-fixing case. Immediately, Spearing began arranging an interview with Whitacre for the following Monday, if he was willing.

Don Mackay was not as pleased with the results. Even though he said nothing to Spearing, he didn’t think the Fraud Section needed to take the case. Lassar and his crew were professionals. They knew the players better; they were farther up the learning curve. This decision was just going to cause unnecessary delays in the investigation.

And maybe that was the whole point.

The government, Mackay feared, might just be playing into the hands of Williams & Connolly and its client, ADM.

Shepard put on his blinker as he drove the final yards toward Whitacre’s driveway. As soon as Hoyt gave the authorization, Shepard had scheduled an appointment to see his witness. As ordered, Killham had come along with him. Shepard was glad to have the company for this Whitacre meeting. It was sure to be difficult.

They parked in front of the house, where Shepard spoke with Whitacre briefly. They decided to head across the street to the horse stables.

Whitacre brought along Ginger; as promised, he had already told her about his confession to the agents. The couple looked desolate and frightened. Shepard introduced Killham to them, and the Whitacres mumbled a greeting.