The Informant

by Kurt Eichenwald

  The idea was ridiculous.

  “I’m thinking about doing that,’’ Whitacre continued. “I think it might help to make a positive statement to the press before they start hearing ADM’s side.’’

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  Shepard didn’t pause. “Mark, I can’t give you any advice,’’ he said.

  “That’s a matter that needs thorough consideration and discussion with your attorney.’’

  “I understand,’’ Whitacre replied. “I’m just asking because your advice tends to be sound and reasonable.’’

  Silence.

  “Mark,’’ Shepard repeated, “I can’t offer you any advice.’’

  Work had come to a halt that day at the Chicago antitrust office. The night before, Shepard and Herndon had spoken with Mann and Mutchnik, telling them about Whitacre’s confession to taking $500,000 in kickbacks. They were sure the same story—or one like it—was now unfolding in the Washington meeting with Aubrey Daniel. By early afternoon, Griffin called with an update. He told them about Whitacre’s apparent embezzlement of $2.5 million. All of his information came from his own notes; Aubrey Daniel had taken all the documents with him when he left. But before Griffin could get into much detail, he announced that he had another meeting. He clicked off.

  Dazed, the lawyers kicked back in Price’s office and informally declared the workday to be over. They discussed their suspicions about ADM’s speed in uncovering the documents and railed some more against Whitacre.

  But, in truth, their most overwhelming feeling was not about ADM

  or Whitacre. Rather, they were focused on the knowledge that, with a problem this big, Washington would meddle. After all their work, someone else would probably take charge. This case wasn’t going to be theirs anymore.

  It was gone.

  Scott Lassar, the First Assistant U.S. Attorney from Chicago, flew in that same day to Washington National Airport for his first meetings at the Justice Department on the ADM case. Since first being contacted about the case days before, Lassar had learned more details of Harvest King and had agreed to join as co–lead counsel. He had already met with Griffin for lunch and reviewed a few tapes. They were impressive. He felt sure they would have impact on a jury.

  As his plane winged toward Washington, Lassar could not help but wonder about what was happening there. He had heard the previous day about Daniel’s demand for a meeting, but was still in the dark Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 360 360

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  about what the lawyer wanted. After landing, Lassar headed out of the terminal and took a cab straight to the Justice Department. He arrived for a scheduled appointment with Seth Waxman, Associate Deputy Attorney General. After exchanging greetings, the two lawyers took their seats.

  “Well, Scott,’’ Waxman began, “you’ve come on an interesting day.’’

  About forty-five minutes later, Mary Spearing, the chief of the Fraud Section in the Justice Department’s Criminal Division, was headed down a third-floor hallway, rounding up prosecutors. She had just been notified that Waxman wanted the Fraud Section represented at a big meeting that was starting right away. Unfortunately, the section’s offices were in the Bond Building, about ten blocks from main Justice. Even if Spearing and her lieutenants hurried, they were sure to be late. Spearing stuck her head into the office of Donald Mackay, a compact fireplug of a prosecutor with a salty tongue and a devilish smile.

  “Don, come on,’’ she said. “We’ve got a meeting over at main Justice.’’

  Mackay stood. “What about?’’

  “I don’t know,’’ Spearing said. “There’s some case out in Illinois where the shit’s hitting the fan.’’

  Before they reached the elevator, the two prosecutors stopped at the office of James Nixon, a staff attorney. Spearing told him to grab his notepad; he was coming, too.

  They headed to the street and started walking. None of them even thought to flag down a cab. With the traffic in downtown Washington, they knew they could hike the ten blocks faster than any car could drive them.

  About that same time, John Hoyt was at his desk in Springfield. So far, it had been a lousy day. That morning, Kate Killham, the squad supervisor for Harvest King, had come by his office to brief him on Whitacre’s confession. Hoyt could scarcely believe it. How did Whitacre think he could take $500,000 of kickbacks without being discovered? The rest of Hoyt’s day had been spent assessing damage, briefing his boss, and telephoning Justice Department officials. By 3:45, he had still heard nothing about the latest allegations from Williams & Connolly. At that time, he was speaking with Kate Killham when Don Stukey’s secretary appeared at the office door.

  “Excuse me,’’ she said. “The SAC wants to see you.’’

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  The two supervisors walked across the hall to Stukey’s office. Hoyt started to speak, but Stukey signaled them to be quiet. A voice came across the speakerphone.

  “All right,’’ the voice said. “Is everybody there?’’

  Nearly a dozen government attorneys sat around a huge wooden conference table in a fourth-floor room at the Justice Department, staring at a speakerphone as they waited for a response to Waxman’s question.

  “Yes,’’ a voice from Springfield said. “My ASAC just joined me.’’

  Waxman, who was sitting in the middle on one side of the table, explained that he had ordered this emergency meeting to assess where the ADM case stood in light of the allegations raised by Williams & Connolly.

  “So what’s the story with this Whitacre guy?’’ he asked into the speakerphone.

  “Why didn’t you let us know the source was involved in criminal activities?’’ a voice from Washington said. “Did you know about this?’’

  The words struck Hoyt as ridiculous. “What are you talking about?’’ he said.

  “We’ve seen the affidavits from ADM that seem to show Whitacre forged a contract,’’ Waxman said. “They have documents tracing it to banks in Switzerland. They have all sorts of documentation of his embezzling.’’

  “We didn’t have access to their corporate documents,’’ Killham said.

  “How could you not know?’’ a voice snapped. “Haven’t you done anything to verify his financial status?’’

  Hoyt burned. For years, he had pushed for the manpower that the case deserved. But every request had hit a wall. Now, these lawyers were saying that the agents handling this case—often working nights and weekends for years— should have done more? That it was their fault?

  “The agents in this case have worked hard under enormously trying circumstances,’’ he began.

  “Well,’’ a voice said, “Brian Shepard either has to be in cahoots with this guy or he’s the dumbest agent going.’’

  “What do you mean?’’ Hoyt asked.

  “Williams & Connolly said they have reason to suspect the agents were involved in Whitacre’s wrongdoing.’’

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  knew anything about Shepard—or Herndon and Weatherall for that matter. Yet they were willing to attack their characters, maybe ruin their careers— because defense lawyers said so?

  “You don’t know these agents,’’ Killham said. “These guys are top drawer.’’

  Hoyt asked for details of any evidence implicating the agents in wrongdoing. No one would answer the question—or say it was based on a couple of anonymous letters. The trust in Washington for the Springfield FBI had obviously taken a big hit.

  “Look, the source has already started opening up about some of this,’’ Hoyt said. “We’re on top of it.’’

  The Fraud Section prosecutors
walked into the conference room at that moment. Don Mackay was surprised at the size of the crowd. This was no routine meeting.

  Whatever this is about, it’s a heater.

  “Okay,’’ Waxman said. “Mary Spearing and two of her lawyers from the Fraud Section are coming in.’’

  The three found seats. No one explained what was going on or even what case was being discussed. They were left to listen in and piece together whatever they could.

  Mackay, a former United States Attorney from Illinois, was surprised to hear lots of names he recognized, such as “ADM” and “Decatur.” It didn’t take long to understand why this case was attracting so much attention.

  Under pointed questioning from the Washington lawyers, Kate Killham recounted the previous day’s meeting with Whitacre at the Chinese restaurant. The story did not square with the allegations raised by Williams & Connolly—and many of those were documented. Some of the lawyers expressed their bewilderment.

  “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.’’

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  “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 Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 364 364

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  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.

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  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 selfdestructive.’’

  “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.

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  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.’’