A Private War

by Brenner, Marie

  After Wigand started working as a confidential expert for CBS, his name began to circulate in antitobacco circles. He was soon called by the Food and Drug Administration. Would he consider advising FDA experts on cigarette chemistry? His identity would be protected. For Wigand, the invitation to Washington was a major step toward regaining his self-respect. By the time FDA commissioner David Kessler appeared before Congress in June 1994, he had reportedly been tutored by Wigand on ammonia additives and nicotine-impact boosting.

  Wigand was invaluable; he even helped the FDA circumvent a standard tobacco-industry tactic—“document dumping.” If a company is subpoenaed for documents related to nicotine studies, it is common in the industry to respond “by driving a tractor-trailer to Washington and leaving ten tons of documents at your door,” according to a close associate of the FDA. In this case, perhaps with an assist from Wigand, the FDA was able to ask B&W for specific papers.

  That month, Wigand said, he received a threatening phone call. “Leave or else you’ll find your kids hurt,” the caller said. Wigand called Bergman in a panic. “I thought it could be a crank call,” Bergman told me. “I knew Wigand was in a great quandary. He was bound up because of his contracts and yet he was filled with moral outrage.” Bergman had been through this before with whistle-blowers. He even had a name for Wigand’s mental state: “transition time.” He remained patient and faxed amusing drawings to Wigand’s children.

  Soon Wigand told Bergman another death threat had come. Wigand was becoming distracted, unable to concentrate. He had started to drink again. “I used to come home and drink three fingers of booze every night,” he told me. One day when he had his two young daughters in the car, he stopped to buy a bottle of liquor. “I am no goddamned angel. I can’t hide what happened. I had one of those big jackets with the big pockets. Instead of getting a basket, I grabbed it and put it in my pocket. And then I realized I didn’t have cash. And I said, ‘Wait a minute,’ and I ran out. And then somebody came running after me. They said, ‘Somebody has been stealing in here before.’ The truth of the matter is that I had the bottle in my pocket. Was it hidden? No. Was it exposed? Yes. My children, Rachel and Nikki, were in the car. I had $300 in cash in the car. I said, ‘I have money. Look.’ I made sure that I showed the cop the money. Was it intentional? It was two days after the death threat. I wasn’t thinking. Why would I want to steal a ten-dollar bottle of booze? Give me a break. The whole thing was dismissed without adjudication. You can be arrested and charged with a lot of things in your life. Did you know that even Thomas Sandefur was once arrested and pleaded guilty on a DWI?”

  Wigand did not tell Bergman about the episode, but Bergman sensed that something was very wrong. He worried about Wigand’s state of mind. He was at the beginning of a long dance to create a sense of trust in his source, who he felt had an incredible story to tell. “Other whistle-blowers had come out of the tobacco industry to tell what they knew, but Wigand was singular. As an explorer, I felt, Wigand was Christopher Columbus,” Bergman told me. The bottom line is that this was a man with significant information, but it wasn’t just that he had to worry about the obvious, which is Brown & Williamson crushing him, but he had to worry about what would happen in his personal life.”

  A lawyer from the Justice Department went to Louisville in April to take Wigand’s deposition on cigarette ignition. Privately, he complained that the lawyer did not ask the right questions. He also worried about his signed agreement with B&W and claims he took its legal department’s advice to stick to the company line. He testified that there was no possibility of developing a safe cigarette and that, as far as he knew, B&W had never committed fraud—testimony that would later be used to challenge his credibility. By this time Wigand had become a shadow expert on the tobacco industry. He was hired by ABC’s law firm Wilmer, Cutler & Pickering to give technical advice in the $10 billion lawsuit Philip Morris had filed against ABC.

  Wigand continued to tell Bergman that he could not talk about B&W until his severance package was completed, in March 1995. Wigand did not tell Bergman that he had signed a confidentiality agreement, but several of Bergman’s finest pieces had been with sources who had been bound by such contracts. “The idea of somebody having a confidentiality agreement didn’t even occur to me as a problem! That was my job, to get people to talk!”

  * * *

  In January 1995, Wigand began teaching school, much to Lucretia’s surprise. He was making one-tenth the salary he had made at B&W, but he seemed quite happy. Meanwhile, Bergman had been feeling the heat from New York. Mike Wallace was getting antsy: “For God’s sake, Lowell, when are you going to get this guy on tape?” In March, Bergman met with Wigand and his wife in Louisville. If Jeff went on-camera, Lucretia asked, what would they do if they got sued? Bergman said, “There may be antitobacco lawyers who would agree to represent you for free. But we don’t even know yet if there is a story.” Was there anything new to say on 60 Minutes? Bergman next sent his associate producer to Louisville to do a preliminary interview with Wigand. She called Bergman after the interview and mentioned that Wigand had given her a copy of his B&W settlement agreement with the confidentiality clause. “He needs a lawyer,” Bergman said.

  In June 1994, the New York Times had run long articles based on thousands of pages taken from B&W—the cache of papers copied at a Louisville law office by Merrell Williams. Only in July 1995 did the University of California and tobacco expert Stanton Glantz put the documents on the Internet after successfully fighting off a serious lawsuit brought by B&W.

  According to Bergman, “It took Jeff a long time to come out and decide that he wanted to tell his story. He used to say, ‘Lowell, I want to do this, but I need support. I need my wife there. We can’t do it yet, because Lucretia is not there.’ ” Wigand had continued to keep secrets from her: In May, the Wigands had come to New York as guests of 60 Minutes. It was not obvious to Bergman that Wigand had not told Lucretia that he intended to be interviewed. “He expected me to explain it to her,” Bergman told me. All summer long Wigand debated about his public role, and Lucretia grew increasingly panicky. Meanwhile, he continued to advise Wilmer, Cutler & Pickering regarding Philip Morris’s suit against ABC. He was even asked to testify for ABC if the case should ever go to court. Bergman read his name on a wire-service story. “I called him and went ballistic! I said, ‘Do you understand that B&W will now go to court to keep you from testifying? Soon every news outlet in America will be calling you.’ ” Bergman had begun to corroborate Wigand’s story from the taped interview he had made; he knew that the Merrell Williams B&W documents supported Wigand’s assertions about addiction, disease, and the role of various individuals. “I wasn’t doing a personality profile. I wanted to find out what he knew that was different.”

  In July, Bergman began to get concerned. “I could see right up front that Jeff was going to wind up testifying. Philip Morris knew about him, the Justice Department knew about him, and so did the FDA. I called up Ephraim [Margolin, a lawyer friend who was advising Wigand by this time] and said, ‘Your client may wind up with a court order not to speak. Let’s get the guy’s story on-camera and lock it up!’ Ephraim had my verbal understanding that we wouldn’t run it until he was ready. Jeff was worried about homesteading his house in case he lost a breach-of-contract suit. He showed up in New York and said, ‘Ephraim wants you to write him a note.’ So I did.” The note stated that CBS would not run the interview without Wigand’s permission, and that they would reconsider the matter on September 3. It was a harmless exercise, Mike Wallace later told me he believed, intended to keep a source happy and calm.

  Bergman told me, “I knew it was going to take months to check out what he had to say. And I thought, Fuck! If he is going to testify in the ABC case, then it will be out there on Court TV in October or November. I had already yelled and screamed about him listing his name. I said, ‘Great, you want to trust these people at ABC. What about this talk about ABC settling the lawsuit w
ith Philip Morris?’ I told him, ‘The difference between ABC and CBS is that I will raise holy fucking hell if anything happens at CBS.’ ”

  * * *

  On September 12, Mike Wallace was asked to attend a meeting with Ellen Kaden, the CBS general counsel; Bergman; then-president of CBS News Eric Ober; 60 Minutes executive producer Don Hewitt; and Phil Scheffler, Hewitt’s second-in-command. “I think we have a problem,” Kaden said, and used the phrase “tortious interference,” which she said involved persuading someone to break a contract with another party. Because Wigand had a confidentiality agreement with B&W, she said, CBS could be “at a grave, grave risk.” She was proposing something unprecedented in the history of CBS News—stopping an important history in midstream for fear of a lawsuit that hadn’t been threatened. Hewitt, by disposition noisy and opinionated, was muted, as were Ober and Wallace. Hewitt later recalled that he had had no intention of “playing cards with a stacked deck.” He advanced none of the First Amendment arguments considered routine, such as: How could you have a confidentiality agreement when there were thousands of pages of supporting documents on the Internet? And Hewitt made no offer to press the issue with his boss, Larry Tisch. Bergman, who was on his way to London to interview BAT executives, was told to cancel the trip.

  * * *

  Don Hewitt’s relationship with Larry Tisch soured after Tisch got control of CBS in 1986. “I am not proud of it anymore, but Mike Wallace, Walter Cronkite, and I were the cheerleaders for Larry buying the network,” he said. “The night Tisch bought CBS, we were all up at our friend Mollie Parnis’s slapping him on the back.” A week later, Hewitt went to see him. “I said, ‘Larry, we have been pretty good friends, and now I need a favor.’ I said, ‘You have handed me all of this money. Tell me what to do with it. Lead me to a good financial adviser. Who knows better than you?’ I got the brush-off. Later I heard he said, ‘I not only pay the son of a bitch all that money—now he wants free business advice!’ ”

  The relationship between Hewitt and Tisch, who are both seventy-three, grew icy, according to Hewitt, when Tisch realized that he could have no editorial influence on 60 Minutes—an assertion that Tisch denies. In fact, the two men shared certain personality quirks: Hewitt was as voluble as Tisch and, like his new boss, had a desire for respectability. Hewitt’s peppery letters and messages were famous in the city, as was Tisch’s pose of modest conviviality. A few years after Tisch became CEO, 60 Minutes produced a searing report on the American Israel Public Affairs Committee that Tisch didn’t like. “He stopped talking to me at that point,” Hewitt recalled. “I went to a reception that Warren Phillips [publisher of the Wall Street Journal] had at the River House, a room full of people like Punch Sulzberger and Kay Graham. I walked in and said to Larry, ‘Hey, boss, how are you?’ He said, ‘Don’t you “Hey, boss” me.’ He turned his back and walked away! We next did a story on Temple Mount in which we say that the Jerusalem police got out of hand, and somebody tells me that when Larry was asked about it his answer was ‘Don’t ask me. Ask Horowitz and Wallach, the two self-hating Jews who changed their names.’ . . . We were the most profitable broadcast in the history of television. The fucker got out of here with all that money only because we kept his company afloat.” According to Tisch, “This is nonsense! Jesus! This poor fellow has a complex. So many things have been attributed to me that I never said. What would I care what Don Hewitt’s last name was originally?”

  In the midst of the furor over the Temple Mount piece, Hewitt said to Tisch, “Larry, you are, in effect, our publisher. It is up to you to defend us.” Tisch answered, “I am not your publisher.” “That episode with Temple Mount unsettled Larry,” a close friend of his recalled. “He had no idea that as the new proprietor of CBS News he had to respect his news division and their editorial judgment.”

  After Tisch took over CBS, the news division was stripped of a good deal of its power and reputation. At a time when ABC was expanding its news operation, Tisch cut the CBS budget drastically. He sold off the lucrative CBS record company, refused to invest in cable, and was outbid on broadcast rights to the NFL football games that were the lead-in to 60 Minutes. “You have to understand,” a friend of Tisch’s told me, “Larry likes money. Money is a game for him!”

  The relationship between CBS and Tisch’s tobacco company, Lorillard, became a vexing problem for the news division. According to someone who knows Tisch well, when he bought Lorillard, in 1968, he viewed it only as a potential investment. “Years ago, the Tisch family was not afraid of liability. If he had asked his technical people, ‘Am I in any danger?’ he would have gotten the typical answer back: ‘You can’t prove anything in a liability case since the surgeon general forced the companies to put a warning on the packs.’ ” Tisch could not have forecast then the sweeping change in tort litigation, the possibility of immense jury awards. There was no imagining in 1968 how medical costs would soar in a few years. “None of this was on the horizon,” Tisch told me. “I couldn’t tell you today whether or not I would have bought Lorillard thirty years ago. . . . There is no clear-cut proof about addiction. I am not a scientist. I never smoked. I take a drink, but am I an addict? Liability suits? This is all pure speculation. I hate it when people tell me what I have been thinking.”

  Lorillard became an immense cash bonanza for the Loews Corporation—the parent company controlled by Tisch and his brother, Robert—earning approximately $700 million a year. For several of Tisch’s friends, a key to his personality can be found in the controversy that tore apart New York University Medical Center in 1989. Tisch was the chairman of the university’s board of trustees, and it was believed that he would give a substantial gift. He announced that he and his brother would donate $30 million but with one proviso: The hospital would have to be renamed in their honor—a proposal that caused an outcry in the press. “Naming a hospital after tobacco men is just too ironic,” Dr. William Cahan, a prominent surgeon at Sloan-Kettering, said in May 1989. “Around town, the University Hospital is becoming known as Lorillard General.” But the hospital gave in to Tisch’s demand. According to Tisch, “There was not a great a deal of negative feeling. I only received one or two letters about it. I thought the family was doing the right thing.”

  * * *

  Lowell Bergman arrived at the Wigands’ red brick house late in the afternoon on September 15. He was deeply concerned about the New York meeting and its ominous implications. His inner radar told him something was way off in the CBS decision, but he was a corporate employee. If he stormed out in a rage of protest, Wigand would be left unprotected. In the wake of ABC’s recent settlement in the Philip Morris suit, Wigand felt doubly vulnerable and exposed, because his name was on the witness list. He said, “They’re going to sue me, and I don’t have any money.” During dinner that night, Bergman received a phone call from Jonathan Sternberg, a CBS lawyer. “Leave that house right now,” he told him.

  At the end of September, Bergman spent a long weekend cutting a version of the B&W exposé. “I wanted to show Mike, Don, and Eric Ober exactly what it was CBS News wanted to kill.” Bergman screened it for the three men that Monday. He recalled, “Hewitt was jumping up and down, yelling, ‘Pulitzer Prize!’ ”

  Soon after, Bergman ran into Phil Scheffler in the hall. The show’s managing editor looked somber. “All he said to me was ‘Stop!’ in a loud, booming voice,” referring to Bergman’s reporting on Wigand.

  * * *

  In the research files of Nexis, the information-retrieval service, there are 220 newspaper and magazine stories that have mentioned “tortious interference” since CBS News made the decision not to allow the Wigand segment to go on the air. It is commonly believed that Tisch, who was in the midst of talks with Westinghouse concerning a merger with CBS, would not entertain the possibility of the threat of a tobacco-company lawsuit. Tisch had witnessed personally the consequences of tortious interference. In 1983 he had been brought onto the board of Getty Oil by Gordon Getty. Several
months later he and Getty toasted a bid from Pennzoil to acquire Getty—a bid that would later be topped by Texaco. Pennzoil sued in a famous case in which Tisch testified, but Texaco was forced into temporary bankruptcy when Pennzoil won a record-breaking settlement. Still, Tisch denies that this experience had anything to do with the CBS decision. “What I went through had nothing to do with the B&W episode. I read about it in the paper, the same way you did,” Tisch told me.

  It was not widely known that a complex financial deal was going on at Lorillard about the time Bergman was trying to salvage the Wigand interview. At the end of 1994, the Federal Trade Commission had ruled that B&W had to sell off its discount, or value-brand, cigarettes—Montclair, Malibu, Crown’s, Special 10’s, Riviera, and Bull Durham—for antitrust reasons. Lorillard was a logical buyer because, although it controlled close to 8 percent of the tobacco market with brands such as Kent, Newport, and True, it was decidedly weak in the area of discount cigarettes. The potential acquisition of Montclair and the other brands would round out the Lorillard product line and increase cigarette sales by more than 5 billion units. While the acquisition was being studied inside Lorillard, Westinghouse was negotiating for a merger with CBS, and speculation within 60 Minutes was focused on the effect a possible lawsuit would have on the merger.