Donald Smaltz

Donald C. Smaltz
Personal details
Born	1936 or 1937 (age 87–88) Lebanon, Pennsylvania, U.S.
Political party	Republican
Education	Pennsylvania State University (BA) Dickinson School of Law (JD)

Donald Calvin "Don" Smaltz (born 1936/1937) is an American lawyer who served as the Independent Counsel appointed to investigate allegations that United States Secretary of Agriculture Mike Espy had received improper gifts from companies with business before his department. His investigation, which ran from 1994 to 1998, resulted in Espy's acquittal but led to several convictions of associates and substantial fines for companies involved.

Early life and education

Smaltz was born in Lebanon, Pennsylvania, to a Bethlehem Steel worker father and an Italian immigrant mother. He attended Pennsylvania State University followed by Dickinson School of Law, where he earned his J.D. degree in 1961.

Legal career

Early career

After law school, Smaltz served as a trial attorney in the U.S. Army's Judge Advocate General Corps. He then worked as an Assistant United States Attorney in Los Angeles, where he specialized in prosecuting white-collar crime.

Private practice

In 1975, Smaltz transitioned to private practice and gained national attention when he and another lawyer accused Watergate Special Prosecution Force prosecutors of misconduct, which led a judge to dismiss two indictments against Richard Nixon's personal tax attorney. This defense victory established his reputation for handling politically sensitive legal matters.

Over the following years, Smaltz built a successful practice representing high-profile clients. His notable clients included the International Brotherhood of Teamsters and a bank with extensive connections to Philippine dictator Ferdinand Marcos and his wife, Imelda Marcos. These engagements cemented Smaltz's reputation as an attorney adept at navigating politically charged legal battles.

During the late 1980s, Judge George MacKinnon of the Special Division of the U.S. Court of Appeals considered Smaltz for leading an independent counsel investigation into fraud and mismanagement at the United States Department of Housing and Urban Development, but Smaltz declined the position and remained in private practice.

Appointment as Independent Counsel

Background of the Espy case

In September 1994, a special three-judge panel appointed Smaltz as Independent Counsel to investigate allegations that Agriculture Secretary Mike Espy had received improper gifts from companies regulated by the USDA, particularly Tyson Foods. The appointment came at the request of Attorney General Janet Reno after an internal debate within the Justice Department.

The USDA's Inspector General had investigated press reports that Espy had received favorable treatment from Tyson Foods after Tyson executives provided him with perks like sports tickets. Career prosecutors in the Justice Department's Public Integrity Section initially argued that the evidence of wrongdoing was too slight to justify prosecution, noting that one known Tyson gift was worth "less than $100." However, FBI officials strongly objected to closing the case. Attorney General Reno, a supporter of the recently renewed Ethics in Government Act, requested an independent counsel investigation.

Smaltz was tasked to "investigate to the maximum extent authorized by law" whether Secretary Espy had violated any federal criminal laws related to gifts from USDA-regulated businesses. He initially expected the assignment to last about six months, but it evolved into a four-year investigation.

Investigation approach

Setting up his operation in Alexandria, Virginia, just outside Washington, D.C., Smaltz cultivated an image of independence and determination. The door to his office displayed a poster-sized version of his mandate to investigate Espy, and above it hung a quotation from Plato: "The servants of the nation are to render their services without any taking of presents...the disobedient shall, if convicted, die without ceremony". This dramatic touch underscored Smaltz's philosophy that public officials must not accept gifts.

Smaltz deliberately kept his base of operations away from downtown Washington to maintain what he described as an "outsider's mentality" free from political pressures.

The Espy investigation (1994–1998)

Expansion of the investigation

Once in office, Smaltz pursued a wide-ranging strategy. His core mandate was to determine if Secretary Espy had illegally accepted gifts, but Smaltz interpreted his authority broadly to uncover related corruption.

Early on, he focused on Tyson Foods, the nation's largest poultry processor. This investigation led to a controversial expansion when Smaltz granted immunity to a former Tyson Foods corporate pilot named Joe Henrickson, who claimed to have ferried envelopes of cash from Tyson executives to then-Arkansas Governor Bill Clinton. When these allegations became public, Tyson Foods denounced Smaltz's inquiry as a "witch hunt," and the White House formally admonished Smaltz for making public comments that seemed to stray beyond the Espy investigation.

By mid-1995, Attorney General Reno grew concerned that Smaltz was exceeding his charter. In a July 1995 meeting, Reno directed Smaltz to confine his investigation to the specific allegations involving Mike Espy and denied his request to expand the probe.

Jurisdictional disputes

Despite this limitation, Smaltz continued to pursue various leads. He investigated Ronald H. Blackley, who had been Espy's Chief of Staff at the USDA, regarding Blackley's role in certain USDA decisions and potential false statements and conflicts of interest.

This move triggered a jurisdictional clash with the Justice Department. Rather than seek Reno's approval, Smaltz went directly to the Special Division (the federal court panel overseeing independent counsels) to request an expansion of his mandate to include Blackley. The Justice Department formally objected, arguing Smaltz was overstepping his authority. In a precedent-setting decision, the court ruled in Smaltz's favor, holding that an independent counsel's jurisdiction could encompass "related matters" involving close associates of the original target. This legal victory enabled Smaltz to proceed against Blackley and legitimized his aggressive interpretation of his mandate.

Indictments and prosecutions

Throughout 1996 and 1997, Smaltz's office issued numerous indictments:

• On August 27, 1997, Mike Espy was indicted on 39 counts alleging he accepted over $35,000 worth of illicit gifts from companies regulated by his department. These included Tyson Foods, Sun-Diamond Growers of California, and several other entities with interests before the USDA. The indictment accused Espy of violating federal conflict-of-interest and anti-fraud statutes.
• Smaltz also prosecuted other figures connected to Espy. Henry Espy, the Secretary's elder brother, was charged with campaign finance fraud and bank fraud related to his unsuccessful 1994 congressional campaign. However, in March 1997, a federal judge dismissed the case against Henry Espy prior to trial, ruling that Smaltz's team had insufficient evidence to proceed.
• Smaltz's investigation also targeted Ronald Blackley, Espy's former chief of staff at the USDA, on charges of making false statements.

Trial of Mike Espy

The trial of Mike Espy began in October 1998 and lasted about seven weeks. Smaltz's prosecutors presented what was described as a "kitchen-sink" indictment, eventually reduced to 30 counts for trial. The charges included accepting gifts like plane rides, sports tickets, luggage, and other favors from companies regulated by the USDA, and then attempting to conceal those gifts or lying about them to investigators.

Notably, Smaltz did not charge Espy with bribery or any explicit "quid pro quo" arrangement. The prosecution's case rested on legal provisions against federal officials receiving gratuities because of their position, even if no particular favor was proven in exchange.

Espy's defense, led by attorneys Ted Wells and Reid Weingarten, argued that Smaltz had overreached and turned courtesy gifts into crimes. They contended that many of the allegations involved minor or innocuous tokens of friendship and that Espy never sold his office or performed official acts in return for gifts.

On December 2, 1998, after only nine hours of deliberation, the jury acquitted Mike Espy on all counts of the indictment that remained against him. Espy emerged from the courtroom declaring he had been "completely exonerated."

Other outcomes of the investigation

Despite Espy's acquittal, Smaltz's investigation resulted in several significant convictions and penalties:

• **Ronald Blackley**: Espy's former chief of staff was convicted in December 1997 of three counts of making false statements, for failing to disclose that he had received $22,000 from individuals doing business with the USDA. U.S. District Judge Royce Lamberth sentenced Blackley to 27 months in prison, an unusually harsh sentence intended to "send a message" about the seriousness of lying under oath by public officials. In January 1999, the D.C. Circuit Court of Appeals unanimously upheld Blackley's conviction and sentence.
• **Tyson Foods, Inc.**: In 1998, Tyson Foods pleaded guilty to a felony count of giving illegal gratuities to Secretary Espy and paid a $6 million fine, one of the largest ever imposed for a gratuity offense.
• **Sun-Diamond Growers of California**: Sun-Diamond was convicted of providing about $6,000 in illegal gifts to Espy and fined $1.5 million. However, this conviction became the center of a legal battle that went to the U.S. Supreme Court. In United States v. Sun-Diamond Growers of California (1999), the Supreme Court unanimously ruled that merely giving gifts to an official because of his position is not a crime under the federal gratuity statute unless there is a "specific connection" to an official act. This decision narrowed the interpretation of gratuity laws and marked a setback for Smaltz's legal approach, even as it clarified corruption law for future cases.

By the close of the Office of Independent Counsel in late 1998, Smaltz reported that his work had yielded 14 indictments and "more than a dozen" convictions or guilty pleas. His office tallied roughly $11 million in fines, penalties, and forfeited assets, mostly from corporate defendants who admitted to giving improper gifts. The investigation cost U.S. taxpayers approximately $17.2 million over four years.

Controversy and legacy

Criticism

Smaltz's aggressive tactics and the mixed results of the Espy probe sparked intense debate about the independent counsel process. Critics argued that the $17.2 million expenditure was disproportionate to what they saw as relatively minor infractions that ultimately resulted in Espy's acquittal.

Mike Espy became one of Smaltz's most vocal critics. After his acquittal, Espy likened Smaltz to a "schoolyard bully" with "all the money, all the power, very little supervision, no timetable" who could "unleash powerful hordes of prosecutors" on a target for years. Espy announced he would be glad to testify in Congress against renewing the Independent Counsel Act when it came up for expiration in 1999.

The media's assessment of Smaltz was deeply divided. Earlier coverage, such as a 1995 PBS Frontline documentary titled "Secrets of an Independent Counsel," profiled Smaltz in laudatory terms. However, after Espy's acquittal, editorial pages grew more critical. The New York Times issued what was described as a "blistering" critique of Smaltz in 1999, suggesting he had wasted time and money on a marginal case.

Defense of the investigation

Smaltz steadfastly defended his work. After the Espy verdict, he argued that even an acquittal had value by putting officials on notice that accepting gifts from those they regulate would be thoroughly scrutinized. He pointed to the dozen convictions and $11 million in penalties his office achieved as evidence that the investigation "achieved more than people realize".

In 1998, Smaltz wrote a law journal article titled "The Independent Counsel: A View from Inside," arguing that without independent counsels, certain high-level corruption cases would never be properly investigated due to conflicts of interest or institutional reluctance at the Department of Justice. He contended that the accountability and exposure resulting from his investigation proved the worth of the independent counsel mechanism, even if it was unpopular in hindsight.

Impact on the Independent Counsel Act

The Espy case, alongside other independent counsel investigations of the 1990s, contributed significantly to congressional debates about the Independent Counsel Act. Bipartisan concern over "unchecked" prosecutors with unlimited budgets had been growing, and the outcome of United States v. Espy added fuel to that fire. When the independent counsel statute expired in June 1999, lawmakers chose not to renew it.

Later life

After concluding his work as Independent Counsel, Smaltz returned to private practice in California. In 2007, he and his wife, Lois Smaltz (a former Los Angeles County Superior Court judge), retired to Sequim, Washington.

In retirement, Smaltz pursued his lifelong passion for music, particularly playing the trombone in local jazz and big band ensembles. Friends and neighbors in Sequim know him not for political controversy, but as "Mr. Trombone," an enthusiast who returned to his musical roots after an intense legal career.

Personal life

In 1994, the same year Smaltz began the Espy investigation, he and his wife, Lois Smaltz, adopted two boys from an orphanage in Saint Petersburg, Russia. Throughout the four-year Espy investigation, Smaltz spent much of his time away from his family, who remained in Rancho Palos Verdes, California.

See also

• Mike Espy
• Office of the Independent Counsel
• United States v. Sun-Diamond Growers of California
• Special counsel
• Kenneth Starr
• Ethics in Government Act

External links

• "OFFICE OF INDEPENDENT COUNSEL - Donald C. Smaltz." CyberCemetery - University of North Texas Libraries & U.S. Government Printing Office. Accessed January 3, 2009.
• "Supreme Court rules Sun Diamond Growers did not violate federal law in Espy case" - CNN, April 27, 1999
• "A Harsh Verdict for Espy's Prosecutor" - The Washington Post, December 5, 1998
• "Was this a bad idea?" - CNN, December 14, 1998
• "Espy Acquitted in Gifts Case" - The Washington Post, December 3, 1998
• Appearances on C-SPAN