Informant

by Kurt Eichenwald

  “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.’’

  “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.

  • • •

  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.

  Epstein looked to Zaideman. Neither had ever heard of a case like this. As soon as Whitacre was out of earshot, they broke out laughing.

  The doorbell rang that same evening at Dwayne Andreas’s Fifth Avenue apartment in Manhattan. A minute later, a familiar voice resounded from the doorway, greeting Andreas’s longtime maid, Fatima.

  It was Zev Furst, one of Andreas’s trusted advisors. The men had become friends years before, when Andreas was looking for business opportunities in the Middle East and found Furst, who had numerous connections there through his work with the Anti-Defamation League. Since then, Furst had become a sounding board, helping formulate strategies for dealing with the press and the government. Days before, Furst had heard about the ADM raids while watching CNN during a trip in Germany. He had called Dwayne immediately, but tonight was their first chance to meet in person.

  The maid escorted Furst to the study, where Andreas was waiting. Furst greeted him and sank into a wing chair.

  “So, what the hell happened?’’ he asked.

  Andreas was poker-faced. “We have a fellow named Mark Whitacre, who is president of our Bioproducts Division. Now it’s clear that he has been working with the FBI for several years and wearing a wire.’’

  He had always found Whitacre strange, Andreas said. At one point the company had caught him in lies involving threats to his daughter and sabotage at the plant.

  “Randall convinced me not to get rid of him because his profit margins were so large,’’ he said.

  But since the raid, Andreas said, he was seeing events of recent years differently—and was even beginning to question things he had witnessed in just the past few weeks. He feared something secret was still going on.

  “Many times I saw Whitacre go into Randall’s office and shut the door, and I always wondered about that,’’ he said. “Then a few weeks ago, Randall came to see me, crying and telling me he’s loyal and owes everything to me.’’

  Andreas looked Furst squarely in the eye.

  “Now,’’ he said, “I’m starting to wonder if Randall knew about this taping.”*

  Furst didn’t like what he was hearing.

  “Dwayne, if that’s true, I don’t care how close Randall is to you,’’ Furst said. “He had an obligation to go to you and the board if he knew.’’

  Andreas considered that.

  “You know, Dwayne,’’ Furst said, “there are two stories here. One is the government investigation. But the second part of the story could be an attempt by others to push the Andreas family out of ADM.’’

  Andreas nodded. “You’re right. Some people still view me as a carpetbagger from Minnesota.’’

  The conversation lasted into the night, with both men discussing the possibility that others at ADM were working against Andreas. It was the first stage of the paranoia.

  The next day, Shepard received another page from Whitacre. His calls had picked up since the raid; clearly he was reaching out to the agent for support.

  “Hey, how you doing?’’ Whitacre asked a moment later. “Did you page me?’’

  “No, I’m returning your page.’’

  “Oh, I just got a funny nu
mber on my pager, didn’t know what it was. Figured you might be trying to get me.’’

  “It wasn’t me,’’ Shepard said. “But how’s it going?’’

  “Well, I met with a new lawyer, a guy named Jim Epstein in Chicago. I’m very satisfied with him.’’

  Everything was working out, Whitacre said. Epstein had agreed to take the case.

  Shepard clicked off the line a few minutes later. Whitacre sounded levelheaded again, more controlled. The agent felt relieved. Now that his witness finally had someone watching out for his interests, maybe everything would be all right.

  Scott Roberts, an ADM in-house lawyer, thumbed through records at the office. Roberts had been assigned to handle some of the defense work in the lawsuit filed months before by Ajinomoto, accusing ADM of illegally using the Japanese company’s threonine microbe. That day, Roberts had pulled documents related to ADM’s purchase of the bug from ABP International, a Swedish company.

  Roberts removed two ABP contracts. The first, for $3 million, was signed in November 1992—unknown to Roberts, during the week Whitacre first met Shepard. The second, for $2.5 million, was dated October 21, 1993.

  Something about the records bothered Roberts. For one thing, there were too many invoices. Plus, the contracts seemed odd. Both Jim Randall and Lennart Thorstensson, the presidents of the two companies, had initialed each page of the first contract, but hadn’t on the second. Why was that?

  Roberts flipped to the last pages, where the signatures of Randall and Thorstensson appeared. To Roberts’s eye, each man’s handwriting looked similar from contract to contract. In fact . . .

  Bringing the two pages closer together, Roberts laid the signature page of one over the other. He held them up to a light, allowing him to see both signatures together.

  Slowly, he slid the two pages until the signature lines matched up. Randall’s signature on the top page melded perfectly with the one on the bottom.

  The signatures weren’t just similar—they were identical.

  Roberts set the documents down on his desk. He needed to find Rick Reising right away.

  After dinner, Whitacre was at home, skimming an old copy of National Geographic. Outside, the evening was tranquil, a stark contrast to the emotions and thoughts swirling through his head. He set the magazine down when the phone rang. Lou Rochelli, an ADM controller and a friend, was on the line. Whitacre appreciated the call; he wanted desperately to know the gossip inside the company.

  “Hey, Mark,’’ Rochelli said. “I haven’t seen you around. What’s going on?’’

  “Why? Are people saying things about me?’’

  “They seem like they’re angry with you. Do you know what’s happening?’’

  “It’s just this investigation,’’ Whitacre said. “There was somebody in the company working for the FBI. But what are you hearing about me?’’

  For several minutes, Rochelli revealed everything he had learned behind the thick walls at ADM headquarters.

  “Dwayne’s going after me inside the company,’’ Whitacre said to Shepard.

  It was the next morning, Friday, July 2. Whitacre sounded ragged. The calming influence of Epstein had worn off. Hanging around the house was tearing him up.

  “I’ve had like twelve phone calls from coworkers,’’ he said, “and they tell me Dwayne’s saying I was responsible for the investigation. But everybody calling is supportive of me. Definitely. I’ve got a lot of support.’’

  Not only that, but Howard Buffett had told him he would be resigning soon. “He really feels the company has committed criminal acts and that they’re going to be prosecuted,’’ Whitacre said. “He’s getting out.’’

  The troops from Williams & Connolly arrived for their first meeting with the Chicago antitrust prosecutors that same day. Aubrey Daniel took the lead, accompanied by Barry Simon and other lawyers from the firm. The show of force seemed intended to send a message: ADM was ready to fight.

  The meeting started casually, with Marvin Price providing a brief history of the building. The lawyers then assembled in the office’s large conference room. The antitrust lawyers had prepared their seating arrangement in advance for the most strategic positioning. The defense team sat in a row on the far side of the table, their backs to a wall of windows. They were cordial but aggressive.

  “Rick Reising has told me that Whitacre says he made thousands of audio- and videotapes,’’ Daniel said. “We want the results of the entire investigation to date, including all of the tapes. Any tapes in this case are company property. An ADM officer made them, on company time.’’

  The antitrust lawyers suppressed smiles.

  No, Griffin responded, the defense lawyers would not be getting everything now. The tapes were the property of the government, not ADM. They would be turned over, as required, in preparation for any court trial.

  Barry Simon of Williams & Connolly stood in a conference room across from Jim Epstein, jabbing a finger in the air as he spoke.

  “Your client is an ADM officer,’’ Simon said sharply. “He has obligations to this company. And he is going to meet those obligations.’’

  Epstein raised an eyebrow and laughed. Whether intentional or not, Daniel and Simon were running some good cop/bad cop routine—and there was no doubt of Simon’s assigned role. Epstein never liked being bullied and wasn’t about to respond to the tactic.

  The issue on the table was whether Whitacre would cooperate with an internal ADM investigation of price-fixing being conducted by Williams & Connolly. Epstein doubted it would be objective—the chairman’s son was facing prison, for heaven’s sake. Rather, he felt sure it would be used to formulate ADM’s defense. Before agreeing to help, Epstein first wanted to check with the antitrust lawyers. If they had no problem, Epstein would probably allow an interview with Whitacre as part of some severance agreement. That would clean up the loose ends.

  Epstein raised his hands. “I’ve heard what you’ve said. I’ll get back to you.’’

  More than a week after the government raids on ADM, little about the criminal case unfolding in Illinois had captured the attention of the national news media. Fairly small articles, usually buried inside newspapers, noted that ADM had been served with search warrants, as had a few other companies. It seemed like small beer.

  That was about to change. Two reporters with the Chicago bureau of the Wall Street Journal were about to propel the investigation to front pages around the globe.

  On the evening of July 7, a Friday, Ginger listened as a car pulled around the driveway. A moment later the bell rang, and she opened the door. A bearded man was there.

  “Good evening,’’ he said. “Is Mark Whitacre home?’’

  Ginger stared at the man. “Sorry, he’s out of town.’’

  “My name’s Scott Kilman. I’m a reporter for the Wall Street Journal.’’

  Kilman explained that he and a Journal colleague, Tom Burton, were working on an article about the ADM case, and he laid out details of what they had learned. Ginger spoke for a short bit but insisted that her husband was not around. Eventually Kilman thanked her and headed back to the car.

  Ginger listened as he drove away. Thank heavens a friend had called to warn that the reporter was on the way. Ginger crossed the room and picked up the phone, calling the stables across the street.

  “Mark?’’ Ginger said. “He left. You can come back.’’

  Over the days that followed, Kilman and Burton kept beating the bushes, trying to confirm their information that Whitacre had cooperated with the FBI.

  Until now, Whitacre had been despondent. His life was in shambles; nobody was congratulating him for doing the right thing. He was the white hat, but the black hats had run him out of town. Maybe if people knew the truth, Whitacre thought, it would help. Maybe Decatur, the industry—maybe even the ADM board—would back him up. These Journal reporters had already figured out a lot and were going to print it anyway; they may as well get it right.

  Kilman ret
urned early Sunday morning, driving his car to the Whitacres’ stables. Whitacre was waiting inside. The time was finally right, he felt, to get his story out.

  Later that day, Shepard took a call from Whitacre.

  “Brian, listen,’’ Whitacre said. “I heard from some reporters with Wall Street. They tell me Wall Street is running an article tomorrow or the next day. They said that it’s gonna name me as cooperating with the government.’’

  Shepard listened, uneasy. This was not good.

  “Did you talk to them, Mark? What did you say?’’

  “They came by the house Friday. But Ginger told them I was out of town. One of them came by again this morning, and I was here. But I just told him I had no comment.’’

  Soon afterward, Whitacre cradled the phone. He didn’t feel bad misleading Shepard. As far as he was concerned, he’d helped the FBI enough. He didn’t owe them the truth.

  Mutchnik arrived at work early Monday morning and headed to the mailboxes. As always, several copies of the Wall Street Journal—brought up from the lobby by a receptionist—were stacked up. Mutchnik grabbed one, scanning the front. His eyes locked on the lead article.

  SEEDS OF DOUBT: AN EXECUTIVE BECOMES INFORMANT FOR THE FBI, STUNNING GIANT ADM, the headline read.

  A little more than halfway down the page, a sketch of a smiling Whitacre appeared. Mutchnik skimmed the article as he walked to his office; the reporters had learned a lot. The article told how Whitacre had begun working for the FBI in 1992, offered details about audio- and videotapes, and listed meeting sites in Tokyo, Hawaii, and Los Angeles. The reporters had even found out about the briefcase rigged with a recording device. Obviously, they had good sources.

  Mutchnik was reviewing the article again when his phone rang. Shepard and Herndon were on the line. They had just seen the article and were very upset.

  “How could this happen?’’ Shepard asked.

  “Yeah,’’ Mutchnik said. “What a shame for Mark.’’

  That same morning, Whitacre was in his kitchen eating cereal as he watched the news on WAND, a Decatur television station. The weather segment had just finished and the anchor, Gayle Simpson, announced the top news story.