The Informant

by Kurt Eichenwald

  Hours later, an ADM corporate lawyer stopped by Whitacre’s office. The company had found criminal lawyers, the lawyer said, some of the best available. Many would be arriving in Decatur that night. Whitacre could meet them that evening at Jim Shafter’s office. The moment had unfolded just as the government had predicted. They had briefed Whitacre on exactly what to say. Now was his chance.

  “Okay,’’ Whitacre said. “I’ll be there tonight.’’

  Herndon and Shepard picked up extensions at the Decatur R.A. when they heard Whitacre was calling.

  “Hey, Mark,’’ Herndon said. “How’s it going?’’

  “Good,’’ Whitacre replied. “Listen, I wanted to let you know I’ve made arrangements to meet with an attorney. He’s flying into Decatur right now.’’

  “How long will it take him to get here?’’

  “About two hours. I’m already set to meet with him early this evening.’’

  It sounded like Whitacre had done as he was told. He hadn’t taken a company lawyer. The agents breathed easy.

  The first wave of personal lawyers arrived in Decatur over the next few hours. That evening, they trooped over to Shafter’s office for the meeting. Before the potential targets had arrived, the lawyers debated Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 317

  T H E I N F O R M A N T

  317

  among themselves. They had considered putting Whitacre with Reid Weingarten, a rising star of the white-collar defense bar. But now they were having second thoughts. Whitacre seemed shaky and probably could use the psychological boost of an older, father figure. Weingarten was basically a Whitacre contemporary. They decided that John Dowd, who was approaching sixty, was a better match.

  The decision went over smoothly. Wilson met with Weingarten; Cox visited with William Taylor, another prominent Washington lawyer summoned for the meeting. Shafter offered his own office to Whitacre and Dowd. The two men walked in and shut the door.

  Dowd settled behind Shafter’s desk and began calmly describing his background. When he finished, Whitacre stared at him cautiously.

  “Let me ask you,’’ he said. “Who do you represent, me or the company?’’

  Waiting in the reception area, Shafter and the other lawyers became restless. Shafter was already on a caffeine high.

  “I’ll tell you,’’ Shafter said. “I’ve drunk all the goddamned Coke I can stand.’’

  The lawyers laughed. Shafter headed to his firm’s refrigerator, returning loaded down with beer.

  “At least we’re a full-service firm,’’ he said, passing out drinks. The beer was nothing without food, so soon the lawyers were on the phone. The pizza arrived before the private meetings ended. Cox was the first to come out. Taylor, his new lawyer, walked beside him.

  “Barrie,’’ Taylor said, “I think you ought to just go home tonight, and we’ll talk again tomorrow.’’

  Cox nodded solemnly. “All right, thank you.’’

  Sometime after ten o’clock, Wilson and Weingarten appeared. They settled in and enjoyed some of the food, while everyone waited for Whitacre and Dowd.

  Eventually, Shafter’s office door opened. Whitacre looked solemn; Dowd was pasty-faced. Whitacre walked toward Reising.

  “Rick, I need to tell you that I’m going to be cooperating with the FBI.’’

  Twenty-four hours late, Whitacre was finally doing as he had been instructed.

  “Well, Mark,’’ Reising replied, “you have a good lawyer. You need to do what your lawyer advised you.’’

  Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 318 318

  K U R T E I C H E N W A L D

  Whitacre fleetingly looked back at Dowd. “I’m going to be getting another lawyer,’’ he said. “John agrees that I should be getting another lawyer.’’

  Walking closer to Reising, Whitacre shook his hand. Shafter stood nearby and heard Whitacre mention something about “hundreds of tapes.’’

  Whitacre headed out the door, following Wilson. Shafter accompanied them; it was now so late that they needed an escort to get out of the building. When they reached the door, Whitacre shook Shafter’s hand.

  “I’m sorry for what’s happened,’’ Whitacre said.

  Shafter nodded, uncertain what Whitacre meant.

  Back inside, Weingarten watched Dowd; the man looked blown away. Given that Dowd had recommended that Whitacre find a new lawyer, he had obviously found a conflict. Weingarten had no doubt what it was.

  Later that evening, the two lawyers returned to the Decatur Club, where they were staying. Weingarten and Dowd were sharing a suite and sat up enjoying a nightcap. Weingarten decided to test out his theory.

  “You know,’’ he said, “that SOB was probably wearing a wire on you tonight, too.’’

  Dowd spilled his drink on his pants.

  Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 319

  BOOK THREE NOTHING SIMPLE

  IS SIMPLE

  Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 320 Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 321

  CHAPTER 13

  Brian Shepard gripped the steering wheel as he drove up a hill, stopping at the usual spot in front of his Decatur house. It was the afternoon following the raids, and the pressure of recent days had coupled with Shepard’s natural demeanor, leaving him exhausted and glum. With only a few hours sleep since the previous morning, he wanted to get away from the case for a while. He trudged up the driveway, feeling ready for some well-earned family time. Those hopes ended just past ten-thirty, when his pager sounded. It was Whitacre. Shepard returned the call.

  “Hey, Mark,’’ Shepard drawled. “What’s going on?’’

  “Hey, Brian, how you doin’? Listen, I met with the attorney I told you about. I’m really not happy—’’

  Shepard interrupted, again cautioning Whitacre not to reveal confidences shared with his lawyer. “I know,’’ Whitacre said. “Well, he’s this guy named John Dowd.’’

  Whitacre described Dowd’s background, stressing that he had been a prosecutor for many years.

  “I thought since he was a prosecutor he would be sympathetic with me helping the government,’’ Whitacre said. “But I was disappointed.’’

  Whitacre said that he had told Dowd details of his work with the FBI, including his role in recording tapes.

  “Dowd promised everything I said would be confidential and that he represented me personally,’’ he said. “I didn’t say anything until he promised that.’’

  As Whitacre spoke, Shepard slowly realized a painful truth: Dowd had been hired by ADM. Whitacre had seen him against the agents’

  explicit instructions.

  And Whitacre had told everything.

  Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 322 322

  K U R T E I C H E N W A L D

  •

  •

  •

  Later that night, the Whitacres were in bed when the ADM offpremises extension rang in the next room. Mark threw off the covers, glancing at the clock as he climbed out of bed. Just past midnight. Dressed only in sweatpants and a T-shirt, he padded into the other room and picked up the phone.

  “Mark Whitacre.’’

  “Mr. Whitacre, this is Aubrey Daniel. We met earlier. I’m the attorney representing ADM.’’

  “They’re telling me not to come back to work!’’

  It was early the next morning, Thursday, June 29. Whitacre was back on the phone with Shepard.

  “Aubrey Daniel said I was a target of the investigation, and so I shouldn’t come back to the office. That doesn’t sound right. I mean, you don’t think they’re gonna tell Mick not to come in, do you?’’

  “Wait a minute, Mark,’’ Shepard said. “Did anyone at ADM tell you not to come to work? Or just the lawyer?’’

  “I haven’t heard from anybody at ADM. Definitely not.’’

  Whitacre reached a decision.

  “I’m going in,’’ he s
aid.

  Briefcase in hand, Whitacre glided through the trading room toward his office, hoping to pass unnoticed. He had arrived at work a little later than usual, but not so much as to raise any eyebrows. He slid behind his desk and thumbed through some papers. No one had said a word to him.

  For about an hour, the workday passed without event. But around nine o’clock, Scott Roberts, a young attorney in ADM’s legal department, appeared in the doorway.

  “Mark, I’m afraid you’re going to have to leave,’’ Roberts said.

  “They want you to take some vacation time.’’

  Whitacre sat back. “Why do I have to leave?’’

  “I’m just delivering a message. You have to leave.’’

  Whitacre at first refused to follow Roberts’s instructions. But the lawyer did not allow himself to get caught up in an argument. He had his assignment.

  “All right,’’ Whitacre finally agreed.

  He picked up his briefcase and walked past Roberts, heading to Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 323

  T H E I N F O R M A N T

  323

  the elevator. The lawyer stayed with him until Whitacre got into his car and pulled away.

  As he drove off, Whitacre reached for his car phone. When they heard Whitacre was on the line, Shepard and Herndon picked up extensions at the Decatur R.A.

  “Hey, how you doing?’’ Whitacre asked, sounding surprisingly upbeat. “Listen, I’ve got an appointment in your building and wondered if I could stop by.’’

  “Sure,’’ Shepard said. “How’s everything at work?’’

  “Not good,’’ Whitacre said, describing how he had been tossed out of ADM.

  “I’m looking for another attorney,’’ he said. “I’m really unhappy with Dowd.’’

  Herndon had just heard the Dowd story from Shepard and was still burning about it. Whitacre said he was now thinking about hiring a Decatur lawyer. Herndon couldn’t believe it. If there was any place he shouldn’t hire a lawyer, it was in ADM’s hometown.

  “Mark,’’ Herndon said, “why don’t we talk about this more when you get here?”

  Soon, Whitacre was knocking on the door to room 353 at an office building on South Water Street.

  Shepard opened the door. “Hey, Mark, come on in.’’

  Whitacre walked into the Decatur R.A. The toll of the day was etched on his face. The agents took him into Shepard’s office, where they could talk.

  As Whitacre told the story of being led out of ADM, his pager sounded— 5413. Buffett’s extension.

  “Hey,’’ Whitacre said. “It’s Howard Buffett. Can I call him from here?’’

  “Sure, Mark,’’ Shepard said.

  The agents knew that Buffett was a friend to Whitacre. After his hard morning, he could probably use the support.

  “Listen, go ahead and take the office,’’ Shepard said. Both agents stood. Whitacre nodded, thanking the agents as they stepped out of the room and closed the door. He reached for the phone and dialed.

  “Howie,’’ Whitacre said, “it’s Mark.’’

  “I can’t talk long,’’ Buffett said. “I’ve got something important to tell you.’’

  Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 324 324

  K U R T E I C H E N W A L D

  •

  •

  •

  In a few minutes, Whitacre emerged from the office, ashen-faced. Shepard was on the phone, so Herndon walked back without him. Whitacre took a seat behind the desk.

  “Howard had a hot tip for me,’’ Whitacre said. “He talked to Dwayne. He knows everything. Dowd told him.* Dwayne’s saying I’m responsible for the FBI coming.’’

  Whitacre looked at Herndon.

  “Dwayne’s repeating what I told my attorney. Can he do that, Bob? Isn’t that some sort of violation?’’

  Of course not, Herndon thought. “I can run that by our attorneys, but I don’t think Dwayne is under any attorney-client privilege. He can say whatever he wants.’’

  “Well, that’s not right,’’ Whitacre said.

  Shepard walked into the office, and Whitacre told the story again. The agents murmured soothing words, but inside they seethed. ADM

  wouldn’t have figured out anything if Whitacre had followed instructions; he had blown himself up. The agents had always assumed that after the raids, ADM would be the enemy set on destroying the case. They never thought that their own witness would take that role first. The antitrust lawyers gathered in Marvin Price’s office when they heard that Shepard was calling with an emergency. Price pressed the button for his speakerphone.

  “Okay, Brian,’’ he said.

  “I was saying, we’re having problems and need help.”

  “What’s happened?’’ Mann asked.

  “Well, to make a long story short, Mark came by today. Like I told you, he got escorted out of ADM this morning.’’

  The lawyers listened in disbelief as Shepard related the story of the meeting with Dowd, the call from Buffett, and the apparent discovery of Whitacre’s work with the FBI.

  “He’s in a panic and needs a lawyer,’’ he said. “Don’t you guys know anybody?’’

  “We don’t find lawyers for witnesses,’’ Mann replied. “He has to choose one.’’

  *Dowd has acknowledged telling ADM that Whitacre would cooperate with the FBI, but denies ever disclosing that Whitacre had cooperated with the government. Additional reporting confirms his account.

  Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 325

  T H E I N F O R M A N T

  325

  “Well, that hasn’t worked,’’ Shepard said. “Isn’t there anything you can do?’’

  After some debate, there was an unspoken acknowledgment that things were getting out of control. The prosecutors agreed to put together a list of qualified lawyers available to represent Whitacre. But they insisted that he make the final selection. Shepard thanked them and said he would let Whitacre know.

  Once the call ended, the lawyers stayed in Price’s office, venting their anger. We told him this! What was he thinking? How could he do it?

  As they spoke, Mutchnik noticed a subtle change. Days ago, whenever the lawyers had discussed Whitacre, they had always called him Mark. Now, in their anger, none of the lawyers would even mention his name. Later that day, James Epstein was working at his Chicago law firm when his secretary buzzed. A federal prosecutor named Mutchnik was on the line.

  “Yeah, I’ll take it,’’ Epstein said.

  Epstein was accustomed to hearing from government lawyers. At forty-two, he was established as one of Chicago’s most respected trial lawyers. In 1985, after six years at the Cook County public defender’s office, Epstein had set up his own private practice. It quickly attracted more business than he could handle, so he brought in two friends who had worked as his partners ever since. Most kinds of cases came through the door: civil and criminal, federal and state, everything. Epstein liked to say that his firm was the type of practice that television viewers might see on L.A. Law—just without the sexy people.

  Epstein answered and Mutchnik introduced himself.

  “So what can I do for you?’’ Epstein asked.

  “We’re working with somebody in an investigation who needs to see a lawyer urgently,’’ Mutchnik said. “Would you be willing to meet with him? His name’s Mark Whitacre.’’

  Epstein paused. He never made the first move. He didn’t want to be accused of improperly soliciting clients.

  “Give him my name,’’ Epstein replied. “If he calls, we’ll set up an appointment.’’

  Mutchnik thanked the lawyer and hung up.

  •

  •

  •

  Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 326 326

  K U R T E I C H E N W A L D

  After a few hours, the prosecutors had drawn up a list of lawyers. In the afternoon, Whitacre called Mutchnik.

  “Okay,
we’ve got three possibilities,’’ Mutchnik said in a direct tone. He ticked off the names, telling Whitacre a little about each lawyer’s background.

  “Oh, this is great, thank you,’’ Whitacre gushed. “Should I go ahead and call?’’

  “Do what you want,’’ Mutchnik said. “It’s up to you.’’

  Just before ten-thirty the next morning, Mark and Ginger arrived on the eleventh floor at 120 South Riverside Plaza in downtown Chicago. They found suite 1150, the offices of Epstein, Zaideman & Esrig, and spoke with the receptionist.

  The lawyer appeared quickly. Ginger stayed in the lobby while Epstein escorted Mark to one of the firm’s two conference rooms. A wooden table dominated the small windowless room, with seating for about six people. One of Epstein’s partners, Bob Zaideman, joined them.

  “First,’’ Epstein said, “I want you to understand that our conversation is confidential. So why don’t you go ahead and tell me why you’re here.’’

  With that, Whitacre was off, rushing through the story with the speed of a runaway train: ADM, price-fixing, audiotapes, videotapes, hidden cameras, strapped-on recorders, briefing the FBI, briefing the Justice Department.

  Epstein listened in awe. This whole thing sounds like a dime-store thriller, he thought.

  When Whitacre finished, Epstein went back, grilling him about missing pieces of the puzzle. Finally, he was satisfied that he saw the full picture.

  “Look,’’ Epstein said, “at this point you haven’t hired me and I haven’t said I’m interested. But I’ll tell you anything about my background that you’d like to know.’’

  Epstein handled Whitacre’s questions nimbly. His first concern, Epstein said, would be to make sure that Whitacre met his dual obligations as a corporate officer and a cooperating witness. Did he expect to continue working for ADM? If so, why? They needed to discuss a possible severance agreement. Epstein suggested bringing in a consultant to help put together a financial proposal. By meeting’s end, Whitacre felt more secure than he had in months. He thanked Epstein and left.