"Gonzalez was seriously concerned. We felt that unless we said something pretty soon, the confetti falling on Clinton during his ride down Pennsylvania Avenue will be shredded documents from the Reagan- Bush administrations," said a congressional staff member.
Anatomy of a Shredding
Those fears proved prescient in places other than the USDA. Beginning the day after the election, according to Justice Department sources, wholesale shredding began to take place on the DOJ's sixth floor, where the key administrative offices are located. One of those witnessing the shredding was Rita Machakos, a paralegal in Justice's employment office, which is near the sixth- floor shredder. According to Machakos, a secretary whom another source identified as likely to be Tissia A. Caldwell of the Justice Management Division spent all day Wednesday, November 4, and part of Thursday, November 5, shredding documents.
By midday Thursday, a large, industrial-sized plastic bag filled with the shredded remains of innumerable documents was seen outside the room where the shredder is located, which is near the much-used DOJ Recreation Association, a commissary for employees. "Anyone could have heard that shredder," Machakos said. "It really makes a racket." She was shocked by the volume of material being destroyed."It would take half a year to get that stuff back together."
According to another source, the sixth-floor shredder in question is a Conveyor 400. It is a fast and efficient machine with cross-cut blades, and was developed specifically for destroying top-secret documents. Paper comes out "almost in powdered form, about 3/4-inch long by 1/32-inch wide." The source also stated that the shredder is located on a limited-access corridor and that it can be operated only by a directive from Director of Security Jerry Rubino (whose office is nearby) or a senior member of his staff.
(Reached by telephone and asked by Mother Jones about the shredding, Caldwell simply laughed and put the call on hold. A moment later Rubino came on the line. Asked what documents Caldwell was shredding, Rubino replied, "What kind of question is that?" Asked about specific details of the incident, he replied, "What do you mean?" Asked whether he would confirm or deny the report, Rubino stated, " I don't understand the question." Half an hour later, a caller identifying himself as Dean St. Dennis from the department's public-affairs office called Mother Jones, offering to answer any questions. He asked, "What kind of documents do you think were being shredded?" We replied that we didn't know and that was why we were asking the question. St. Dennis later called back to say, "Anything done was purely routine." He then stated categorically, "No BNL documents are being shredded by Rubino or his staff." In none of the conversations had Mother Jones mentioned BNL.)
A senior career DOJ official confirmed the "wholesale destruction" of documents in another division of the Justice Department as well. "It started immediately after the election and is more extensive than anything in anyone's memory," he told us. "There are a lot of records to purge. Here you have twelve years - Inslaw, BCCI, BNL, etc., and the stonewalling of Meese and Thornburgh and Barr. There's been no time since Roosevelt that you have had this long a period of continuity. Never in this century has there been such a record of malfeasance."
"There is no record left of the files or what they contained,"he added. "The notion of being a historian and going back into these files just disappeared."
The shredding occurred against a backdrop of chaos at the Department of justice. The DOJ was awash in allegations of deception, cover-up, perjury, theft, and obstruction of justice. Even as Attorney General William Barr was refusing to comply with congressional demands for an independent special prosecutor to investigate the BNL case, his Justice Department was under investigation by FBI Director William Sessions, who was himself briefly the target of a DOJ criminal probe.
It was the beginning of the end at the Justice Department, where dirty politics had long since displaced blind justice. Although every administration bends the rules and politicizes government agencies to some extent, rarely has an agency been as compromised and corrupted as was the Department of Justice - the nation's top cop and prosecutor - during the Reagan-Bush years. This corruption at the pinnacle of the U.S. legal system will threaten President-elect Clinton from the moment he takes office.
"The people I know here at justice now think of the DOJ as a very dishonest place," Machakos told us. "Everything here is very very political.... Reagan brought in a lot of political appointees, and the ones who committed perjury and fraud or lied to protect the organization are the ones who got promoted."
The Bottom Line
Clinton's crisis is similar to the one Jimmy Carter faced when he assumed the presidency in 1977. The CIA (then headed by George Bush) had been transformed by the Kennedy, Johnson, and Nixon administrations into a covert political tool accountable only to the president. The domestic spying and dirty tricks that culminated in the Watergate break-in had eclipsed the agency's traditional duties of gathering and analyzing foreign intelligence.
Carter's attempt to reform the CIA was largely a failure, as evidenced by the agency's connection to many of the political scandals of the 1980s (Iran-contra, BCCI, the S&L disaster, Iraqgate, etc.). His efforts were neither thorough nor sufficiently punitive. Some, like Attorney General William Barr (who served under George Bush at the CIA from 1976 to 1977), left the agency to spend the Carter years as highly paid lawyers or lobbyists, only to return to government posts under Ronald Reagan.
President Clinton will have to do better. Unless his purge of the Justice Department is accompanied by criminal prosecution of those implicated in wrongdoing, it will meet with little success. Not only will it fail to end the careers of those who misused their offices for political purposes, but it will serve as little deterrent to future officials who might consider the risk of early retirement a small price to pay for the short-term gains of corruption.
Further, criminal prosecution must not be limited to the mid-level scapegoats that the Justice Department will doubtless be only too willing to produce. The stain of scandal has spread beyond the DOJ, as other parts of the executive branch - even the White House itself - may have been enlisted in the obstruction of justice. The trail of suspicion reaches beyond Barr - to former Commerce Secretary Robert Mosbacher; former Secretary of Agriculture Clayton Yeutter; National Security Adviser Brent Scowcroft and his acting secretary of state, Lawrence Eagleburger; White House Counsel Boyden Gray; and George Bush himself. How did it come to pass that those ultimately responsible for upholding the laws of the United States should instead have trampled them?
The Slippery Slope
In 1980, Ronald Reagan and George Bush rode to power on a wave of voter discontent with a president seen as weak and vacillating, and took up as part of their mandate the need for a strong executive branch. The constraints placed upon them by a Democratic Congress, however, limited their authority and impeded the implementation of all that they sought to accomplish.
The administration's worst fears were realized in 1982 when Congress passed the Boland Amendment, making direct military aid to the contras illegal. If the president were to carry out his foreign and domestic policies, the Justice Department would have to become more selective in how it enforced the law. In 1984, this delicate task was entrusted to a long-time Reagan confidant, then-Attorney General Edwin Meese.
One by one, the DOJ's division heads, deputy and assistant attorneys general, and special counsel were replaced. Once the province of career prosecutors who had worked their way up through the system, these positions were repopulated with ambitious yuppies. If the new appointees were not exactly corrupt, neither were they overly concerned with equal enforcement of the law. They knew that they had been hired for their loyalty rather than for their devotion to justice.
One highly placed DOJ official who resigned during this period told Barron's, "I know of at least fifty or sixty career employees who have been reassigned or forced out." Another said: "They're trying to find openings - or force openings - for political appointees that they want to bury as what we call ~moles' in the Department. They bury these moles at DOJ so that even the next administration can't find them."
By 1986, the FBI was so concerned that politics would interfere with sensitive investigations that when Meese assigned Assistant Attorney General Charles Cooper to the DOJ's investigation of the Iran-contra affair, FBI agents refused to share their leads with Cooper because (according to former Attorney General William Weld) they viewed him as "strictly a ~political' assistant AG." (Now in private practice, Cooper is representing a Meese associate implicated in the alleged theft by the DOJ of software belonging to Inslaw, Inc. For details, see the "Inslaw" section.)
By the time the presidential torch was passed from Reagan to Bush, Attorney General Meese had been so discredited by scandal and high- level DOJ defections that he had resigned and been replaced by Richard Thornburgh, a conservative former U.S. Attorney and former governor of Pennsylvania. Meese's failing had been that he had lost control of the subordinates who went public and embarrassed him. Thornburgh would not make the same mistake.
According to Stu Smith, president of AFSME No. 26, one of the unions that represents DOJ employees, "Justice became politicized at a lower and lower level. The issue was control. Thornburgh was a real nut on the issue of control. He wanted everyone at DOJ singing from the same hymnal."
Another important player in the Bush administration's efforts to bridle the justice Department was White House Counsel Boyden Gray, known for his penchant for executive privilege. Gray's influence became evident when Bush began attaching statements to bills he signed, informing Congress there were parts of the new law he disagreed with and therefore intended to ignore. In 1990, Gray, responding to complaints from business leaders, ordered Thornburgh to retract the DOJ's support for strong new criminal-sentencing guidelines for corporations and corporate executives caught breaking the law.
When Thornburgh left his post in mid-1991 to run for one of Pennsylvania's Senate seats, Bush turned to former CIA hand William Barr to replace him. By this time, the toxic political waste left by the two previous attorneys general was threatening to seep into public view, and Barr's challenge was to shield the administration during the campaign from any political damage that might result.
George Bush, Jr., once told friends that he and his brothers had a saying they applied to those who served their father: "If a hand grenade lands near the man, it's your job to throw yourself on it." M. Danny Wall, the nation's top S&L regulator, had thrown himself on the S&L grenade for George Bush in 1988, hiding that $500 billion mess from Congress and the public until after the election. Now Barr would serve the same function, hiding the festering scandals at Justice until at least after the 1992 election.
The Justice Department, which had begun the decade like the cop who sometimes turns a blind eye to crime, was by this time a full-fledged partner in alleged criminal enterprises ranging from perjury to obstruction of justice. "I've got to tell you, the bottom line is that the DOJ as presently constituted is a totally dishonest organization, riddled with political fixes," said a former congressional investigator who dealt with the department for fifteen years. "They know how to write the memo, how to make the phone call, how to deny access to Congress. The game over there is fixed."
It's not possible to make a comprehensive list of crimes committed within the Justice Department during the Reagan-Bush years - because as the wing of government responsible for criminal investigation and prosecution, it is largely invulnerable to either. Still, by examining a number of cases that have come to light (including the Inslaw and Iraqgate scandals, which have been investigated at some length), it's possible to assemble a blue-print of how the DOJ has obstructed justice for the past twelve years.
The Inslaw affair began during the Reagan era. A small, private software company in Washington, D.C., Inslaw, Inc., accused the Justice Department of stealing its proprietary data-base software so that a personal friend and business associate of Attorney General Ed Meese could profit from a lucrative DOJ computer contract. When the company sued and won and Congress began to ask questions, an apparent cover-up began; it plagued the tenures of Meese, Thornburgh, and Barr.
Last September, the House Judiciary Committee concluded that, in an effort to block probes into the Inslaw affair, "high-level Justice Department officials" may have committed the following felonies: fraud, perjury, witness tampering, criminal obstruction of justice, conspiracy, retaliation against a witness, and theft.
When former DOJ employee Lois Battistoni told congressional investigators what she knew about the Inslaw affair, she received anonymous threatening phone calls. Another career official (who still works for Justice) had a tougher time of it. According to colleagues, when Congress began asking for the DOJ's Inslaw documents, this mid- level official was ordered to shred some files and haul others over to the CIA, where they could be shielded by claims of national security. The sources said that when his superiors became worried that he might tell congressional investigators what he knew, he was ordered to submit to an evaluation by a CIA psychologist. His superiors refused to tell him the reason for the examination, and denied his request that it be conducted by an independent psychologist or with an outside doctor present. After the exam, the official was transferred to another post, where he would no longer handle sensitive matters.
Intimidation of this kind has kept potential whistle-blowers at Justice silent and made it all but impossible for Congress to conduct investigations. But the DOJ's unwillingness to work with Congress has never been more flagrant than at the time when Attorney General Richard Thornburgh, in a move of unprecedented audacity, simply refused even to show up for a hearing at which he was expected to answer questions about Inslaw. "It's incredible how DOJ blocks oversight by Congress," said a Washington attorney and former congressional investigator who asked not to be named. "The Inslaw affair is just a microcosm of more serious problems within Justice."
In August 1989, agents from U.S. Customs and the FBI raided the Atlanta offices of the Banca Nazionale del Lavoro and found that the little Italian government-owned bank had given Iraq $5.5 billion worth of U.S.-taxpayer-guaranteed agriculture loans since 1985. Much of this money had in fact been illegally diverted to build up Saddam Hussein's military machine (and in particular his budding nuclear- weapons program) - a fact apparently known both to BNL officials in Rome and to British and U.S. intelligence.
Knowingly participating in the perversion of a federal loan program is a felony, but the Justice Department had good reason to think twice before investigating BNL too thoroughly. Those possibly involved in the loan scam included not only former Kissinger Associates president Lawrence Eagleburger (then deputy and now acting secretary of state) and former Kissinger Associates vice-chairman Brent Scowcroft (now national security adviser), but also Commerce Secretary Robert Mosbacher, former Agriculture Secretary Clayton Yeutter, former Secretary of State Jim Baker, White House Counsel Boyden Gray, and the president himself. So, following the BNL raid, the Justice Department rolled out its well-oiled cover-up machinery.
First, the Atlanta prosecutor was pressured to withhold any criminal indictments until after the gulf war was over. In Washington, Commerce and Agriculture department documents were altered or withheld from Congress. Later, documents were hidden from the federal court in Atlanta. Federal judge Marvin Shoob made the accusation, "It is apparent that decisions were made at the top levels of the Justice Department ... and intelligence community to shape this case."
Before retiring in April 1992, Bill Hinshaw headed the FBI office in Atlanta. When interviewed in a local newspaper four months after his departure, Hinshaw suggested there might have been more to the BNL case than what met the eye. The response was swift. "The DOJ sent FBI agents down to interview me," Hinshaw said, "and other FBI agents I know phoned me up to say: ~Hey, what are you doing? Do you want to tip the balance and get Slick Willie elected?'"
According to Hinshaw, others in the FBI told him that he might lose his new job as an inspector general for the Tennessee Valley Authority if he kept talking about BNL. Bitter over the entire matter, Hinshaw now believes he was deceived by higher-ups about the true nature and scope of the case, and that there was a lot of behind-the-scenes activity that was never shared with him. For example, assistant U.S. Attorney Gale McKenzie, who coordinated the investigation with Hinshaw, never told him she had received phone calls concerning the case from the White House.
"If I had known about those phone calls," Hinshaw told us, "my antennae would have gone up 35,000 miles. Looking back now it embarrasses me. I thought I was a pretty savvy guy." He said he could never figure out why Justice was always delaying the investigation. "We had the horse in the gate, but they wouldn't open the gate."
Delaying the Atlanta investigation was not all the DOJ was up to. According to the congressional testimony of Gary Milhollin, director of the Wisconsin Project on Nuclear Arms Control, the Justice Department had postponed for over a year the investigation of allegations that the Commerce Department had doctored export licenses to hide from Congress the fact that military-use materials had been approved for shipment to Iraq. "This has to do with the safety of everyone in the world, and the rule of law in this country," Milhollin said.
Congress thought the allegations of DOJ complicity in the BNL affair serious enough to request the appointment of a special prosecutor. Attorney General William Barr twice refused to do so. As the November election approached, however, the political importance of maintaining an appearance of lawfulness became too important. In a nationally televised news conference, Barr appointed retired federal judge Frederick Lacey as a special investigator who would report back to him.
Although Judge Lacey describes himself as "a relative stranger to the Washington scene," it's unlikely that he'll have to learn many new names. Many of those he will be investigating are people he knows from his 1979-85 tenure as a judge in the U.S. Foreign Intelligence Surveillance Court - a secret court hidden in a high-security room somewhere at Justice Department headquarters. This court, whose exact location and membership are closely guarded secrets, rules on (among other things) DOJ requests for electronic surveillance of suspected terrorists and spies.
When asked by reporters if he believed he could conduct an independent investigation, Judge Lacey responded, "I think ~independence' is best defined as a subjective thing." Lacey has advanced his investigation to the point where he has recommended that Barr appoint an independent counsel to investigate the CIA. This focuses the investigation on the CIA and also enables Barr to make the appointment before Clinton takes office.
Peter Stockton, a twenty-three three-year veteran investigator who works for Congressman John Dingell's (D-MI) oversight subcommittee, said that it's ludicrous for the DOJ to pretend it can investigate its own behavior: "You can't expect the king's lawyers to prosecute the king's men for doing the king's business."
"This is the great untold story that no one has put together," said a former Senate investigator. "Justice can kill or thwart any investigation at will, and it does so on a regular basis."
Dirty Laundry List. Iraqgate and the Inslaw affair are the most widely reported scandals that have yet made their way to the Justice Department's doorstep. A number of lesser-known instances of possible DOJ wrongdoing, however, suggest that political favoritism and obstruction of justice have become the rule - not the exception - at the department:
* In 1988, Senator John Kerry (D-MA) passed evidence of criminal conduct by the Bank of Credit and Commerce International to the DOJ. Justice did nothing. Later, the director of U.S. Customs, William Von Raab, gave Justice even more explicit evidence of BCCI's wide-ranging criminal banking activity. The DOJ neutralized Von Raab's evidence by entering into a narrow plea-bargain agreement with BCCI officials, effectively shutting the door on Von Raab's broader allegations. In 1990, the DOJ tried to derail Manhattan district attorney Robert Morgenthau's independent investigation of BCCI by contacting witnesses and warning them not to cooperate with Morgenthau. Former Senate investigator Jack Blum said that since BCCI had been the original banker for the administration's Iran-contra operation, the Justice Department "just wanted to look the other way."
* In the closing days of the 1988 presidential election, convicted drug dealer Brett Kimberlin attempted to tell the press that he had repeatedly sold marijuana to vice-presidential candidate Dan Quayle when the latter was a law student in Indiana. Federal prison officials secretly recorded all of Kimberlin's phone calls and sent the tapes to Washington, where they were reviewed by high-level DOJ officials. Kimberlin's scheduled press conference was subsequently canceled (in violation of prison policy), and the inmate was thrown into solitary confinement and held incommunicado until after the election. Kimberlin's treatment was personally authorized by the DOJ's director of prisons, J. Michael Quinlan, who had been in close contact with the White House.
* When, in 1990, a federal grand jury voted unanimously to indict senior Rockwell International and U.S. Energy Department officials for massive violations of environmental laws at the Rocky Flats nuclear- bomb factory near Denver (see "Toxic Ten," page 40), the local U.S. Attorney refused to do so. When Congress asked why, Justice ordered subpoenaed FBI agent Jon Lipsky not to discuss the issue. (In October, a congressional report accused the DOJ of systematically refusing to prosecute politically sensitive environmental crimes.)
* In 1990, James Fagan, assistant U.S. Attorney in Atlanta, was preparing to indict Southern Company Services - a company run by major Bush campaign donor Edward Addison - for criminal tax evasion. Before the indictments could be handed down, the criminal investigation was halted by the head of the DOJ's tax division, Shirley Peterson (who was later promoted to commissioner of the IRS).
* After former Health and Human Services investigator Leon Weinstein won taxpayers more than $1 million in a series of Qui Tam suits against a fraudulent Florida Medicare provider in October 1992, the Justice Department expressed its gratitude by asking the judge to strip Weinstein of $8,000 that the court had awarded him in one of the suits. Six years earlier, Weinstein had blown the whistle on a $30- million-a-month Medicare scam at Miami's International Medical Centers, where President Bush's son Jeb was a paid adviser and lobbyist.
"I could give you twenty more cases," a senior House and Senate investigator told us. "What they would do with a case that they wanted to go nowhere, or kill, is assign it to an FBI agent or DOJ staffer nearing retirement. Maybe the guy would have less than a year to go. And they'd tell him, ~Hey Tom, here's a file - make one phone call a week on this and memo it to the file.' From that point on, DOJ would have plausible deniability if anyone inquired what happened to the investigation. They could simply say, ~We don't comment on ongoing investigations.' And that's where it would stop and die."
Crime and Punishment
As Bill Clinton begins his presidency, there will be those who counsel him to forget the crimes committed by his predecessors and their handmaidens at Justice, lest he appear vindictive.
Others in the new administration may even suggest that a politicized DOJ, which can now be bent to Clinton's needs, might not be such a bad idea. After all, Clinton's list of financial benefactors includes plenty of powerful interests that have become used to special treatment and will not want the DOJ's teeth returned.
If Clinton succumbs to either temptation, he will regret it - if not immediately, then later. Corruption on this scale expands in a geometric, rather than arithmetic, progression, like a chain reaction out of control. One illegal act triggers two lies, which demand four obstructions of justice, which require eight perjuries, and so on. if President-elect Clinton believes he can hold such a beast by the tail, he will find, like his predecessor did, that soon he cannot let go, lest it turn and consume him. The solution is to pursue an investigation as free of political manipulation as possible. By urging that an aggressive Republican be appointed to the post of special prosecutor, and encouraging him or her to investigate without interference, Clinton can maintain credibility not only for the investigation, but for himself as well.
The Usual Suspects
The importance of a thorough investigation, accompanied by criminal charges against those guilty of wrongdoing, cannot be overstated. President Carter believed he could reform the CIA simply by purging it. He was wrong. To end the corruption at Justice, Clinton must drive a prosecutorial stake through its heart.
Those who merit particular scrutiny by the special prosecutor include:
- Attorney General William Barr: to determine what role, if any, he played in efforts to influence improperly the Atlanta prosecutor's investigation and prosecution of the BNL case; in the alleged withholding of documents from the Atlanta federal court; in obstructing justice in the Inslaw case; and in subverting the grand- jury process in the Rockwell case.
- Former Attorney General Richard Thornburgh: to determine what role, if any, he played in possible obstruction of congressional probes into the BNL and Inslaw affairs; and in the disappearance of documents sought in connection with these cases.
- Former Attorney General Edwin Meese: to determine what role, if any, he played in the alleged theft of Inslaw's Promis software; and in limiting the DOJ's investigation into the Iran-contra affair.
- National Security Adviser Brent Scowcroft and acting Secretary of State Lawrence Eagleburger: to determine what each man knew about BNL when joining the Bush administration after leaving Kissinger Associates; and what possible role each played in efforts to hide Iraqi and administration complicity in the BNL loan scheme and to facilitate approval for new loans.
- Former Secretary of Commerce Robert Mosbacher and former Secretary of Agriculture Clayton Yeutter: to determine what role, if any, each man played in the approval of shipping restricted items to Iraq; in subsequent efforts to hide this approval from Congress; and in the altering of official export-license documents provided to Congress.
- White House Counsel Boyden Gray: to determine what role, if any, he played in efforts to influence the Atlanta court's prosecution of BNL; and in the formation of the administration's plan to obstruct the congressional investigation of the BNL affair.
- President George Bush: to determine what he knew, and when he knew, about the credits approved for Iraq; and what the president knew about the subsequent efforts to obstruct investigations by Congress and the federal court.
Returning the DOJ to its proper role will take more than just the purge and prosecution of its political hacks. Morale has been shattered among those career professionals who have managed to survive twelve years of ideological cleansing at Justice. Candor and trust in the department have all but disappeared.
"The career professionals saw which way things were going after Reagan and Meese came in," said Lloyd Monroe, a former assistant U.S. Attorney. "Those who survived just pulled back into their shells."
The election, however, changed everything at Justice. "For the career folks, it went from morale that was lower than whale shit to full- scale elation," said one senior official. "[Conversely my limited contact with the political people showed that they were shocked at first. Then it was an attitude that, ~Well, I can last this out and we'll get the bastards again in 1996.' But most were in shock. There was a fool's paradise there until the election."
According to Monroe, the career professionals at Justice had spent most of the last few years "just hunkered down so they could collect their pension."
Now it is the criminals in the Justice Department who are hunkering down.
OFF THE RECORD
We have never worked on an article for which so many sources were genuinely afraid to speak on the record. People in Washington, D.C., both in and out of government, are frightened of crossing the Department of Justice. One former DOJ official agonized when we asked if we could name him in this piece. "It embarrasses me that I don't have the courage to go on the record," he said, "but I still have a family to support and I know the power of the DOJ and the ruthlessness with which it is now being exercised."
We heard similar comments again and again, and the fears that inspired them did not seem unfounded. DOJ employees have been fired, demoted, and transferred when they've gotten out of step with the department's political agenda.
"I almost despise my own lack of political courage for not speaking out sooner," another career DOJ official told us. "We have an enormous desire to purge ourselves of what we know. We want to participate in our own salvation."
Stephen Pizzo is a regular contributor to Mother Jones. Mary Fricker, a business reporter for the Santa Rosa Press Democrat, coauthored with Stephen Pizzo, Inside Job: The Looting of America's Savings and Loans. Kevin Hogan is a research associate of Mother Jones who contributed additional reporting to the story.