Trust and Confidence – Some Back Story

Last week’s story about former Secret Service Director Lewis Merletti’s 1998 battle with Independent Counsel Kenneth Starr is far from a complete account. I’ve been developing a more comprehensive narrative that includes what was going on inside the Office of Independent Counsel at the time.

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In preparing the story I studied “The Referral by Independent Counsel Kenneth Starr”; “The Report of the Special Counsel Concerning Allegations of Misconduct by the Office of Independent Counsel,” by Special Counsels Jo Ann Harris and Mary Harkenrider; the “Final Report of the Independent Counsel” by Robert Ray, who took over for Starr; news accounts from 1998; as well as many documents from OIC files at the National Archives.

In addition to the many conversations I had with Merletti and Harris, I interviewed seven former prosecutors in Starr’s office. Of the seven, two wished to remain anonymous, the other five were: Deputy Independent Counsel Robert J. Bittman, Deputy I.C. Solomon L. Wisenberg, Associate D. Thomas Ferraro, Associate Monte Richardson and a brief email exchange with Associate I.C. Paul Rosenzweig.

Sol Wisenberg believed, along with others at OIC, that Merletti had a “deal” with the President, and that he was trying to cover for Clinton.

Wisenberg: “I would say that there was a bad feeling about the director on the part of several people in the office, that he wasn’t playing it straight. He wasn’t just being a director of the Secret Service, that he had a special relationship with President Clinton.

“I was appalled by Merletti’s efforts to block [agents’ testimony],” Wisenberg said “and his efforts, as you know, were completely rejected in the courts. I think it was totally, F-#@$#!g hypocritical because there had been many Secret Service agents that have been allowed to write books, and things like that and nobody said anything about it. Now, all of a sudden, it was an issue. So, I thought it was a F-#@$#!g joke.”

When I asked Wisenberg about the tip coming from a source inside the Secret Service – a seemingly important factor to Starr, Bittman and Jackie Bennett – Wisenberg, a chief deputy for Starr, didn’t remember much, even sounding nonchalant.

Lichtman: “What can you tell me about the Secret Service tip? According to Bittman, everyone in the office knew about the tip and you were one of the top deputies in office. Did you find any corroboration on this individual’s story?”

Wisenberg: “What I remember, there was some kind of feeling… ground rules on interviewing [the “source”].

Lichtman: “Whatever you tell me that can enlighten me about this story.”

Wisenberg: “Gotta remember, it’s been quite awhile ago. I don’t know about that deal. I don’t know what corroborative efforts were made. That wasn’t something that was part of what I was doing.”

Deputy Independent Counsel Robert Bittman was the most difficult interview.

Lichtman: “Where did this tip come from?”

Bittman: “I didn’t get tips. Tips didn’t come to me. Don’t remember if it was a member of the media or somebody else.”

Lichtman: “Was an effort made to check the veracity of this tip?”

Bittman: “Secret Service people wouldn’t talk to us, and we did take steps to verify, but it was a private conversation between the president and Merletti, and relayed to somebody else that got back to us. …”

Lichtman: “So, the tip came from outside the Secret Service from someone who had heard from someone inside the Secret Service?”

Bittman: “Correct. We did talk to Merletti. Merletti always agreed to talk to us, but he denied it.”

Bittman could be suffering from a faulty memory here, because in checking OIC files at the Archives, all tips were listed under Bittman’s own work files.

His memory appeared more precise, however, when he talked about the legal aspects of the case detailing how the Secret Service lost their challenge in all courts where the issue of confidentiality was brought up. However, when I cited a decision by Judge Susan Webber Wright, the conversation quickly turned.

Lichtman: What I don’t understand is how Susan Webber Wright sided with the Secret Service in the Paula Jones matter and…”

Bittman: “I don’t think that’s right, what Webber Wright ruled on. We never had an adverse judgment on the Secret Service. She did not rule on the Secret Service issue. She ruled in our favor regarding communication in the White House, which was a separate issue during the Lewinsky thing. …”

Actually, Mr. Bittman is not completely accurate. Webber Wright ruled that four Secret Service agents did not have to testify in the Paula Jones matter.

In Death of American Virtue, legal scholar Ken Gormley writes, “In January, Paula Jones’s lawyers had tried to subpoena four Secret Service agents in close proximity to the president… Judge Webber Wright had slammed the door shut on this inquiry, ruling that U.S. Secret Service agents’ observations had no bearing on ‘the core issues in this case.’ Moreover,” Gormley says, “the judge wrote, there existed a real possibility that interrogating these agents could ‘provide critical information at the core of how the Secret Service actually functions,’ which could create an ‘unacceptable’ risk to the president and others if disclosed.”

Lichtman: “And you’re saying that she ruled in your favor?”

Actually, I’m wrong, here. The ruling was against Paula Jones’s personal attorneys, not OIC prosecutors. However, the “unacceptable” risk point Webber Wright was making was the core of Director Merletti’s argument.

Bittman: “No. Look, you’re not understanding what I’m saying… I never said that… I don’t remember that ruling. That’s what I said.”

Lichtman: “I just want to…”

I wanted to go back and re-read the passage and try to understand Bittman’s point, but was cut off.

Bittman: “…You know, maybe we ought to stop talking. … I don’t want to talk to you anymore.”

Exit, Robert J. Bittman.

The next day, I sent him my original question sheet, apologized for any misunderstandings, and suggested he could send me his answers in writing. Never heard from him again.

Voice mail requests for interviews addressed to Jackie Bennett and Robert Ray went unanswered. I tried four times to get an interview with Ken Starr and each time, the answer was “No.”

Special Counsel Jo Ann Harris, the only individual from the Department of Justice with sizable knowledge about that time, became very accessible once I secured a copy of the 100-page report that she and co-counsel, Mary Harkenrider, had prepared. Jo Ann was very forthcoming about many details including the strong feeling by the upper echelon of Justice that Starr’s pursuit of Clinton over an affair with an intern was a waste of time and taxpayer money. She, along with many others, were surprised and frustrated that the original independent counsel, Robert B. Fiske, a seasoned special investigator, had been replaced by Starr, even labeling the action political.

In the days before her death in October 2014, she would talk on her cell phone from a hospital bed answering any and all questions I had. At one point, I could tell she was tired, having trouble focusing. I said, “Let’s talk in a day or two.”

“No,” Harris said, “I might not be here.”

We finished the conversation and she passed away about a week later.

Associate Independent Counsel D. Thomas Ferraro, now a federal judge in New Mexico, contributed some details of a pre-grand jury meeting on January 18, 2001 in response to a subpoena Merletti had received from OIC. The attendees of that meeting were confirmed by the fact that Merletti asked for and received business cards from each of the attendees.

In reviewing the end notes in Gormley’s book, Death of American Virtue, the book that detailed the entire Whitewater investigation, I came across a note that said that a source at that January 2001 meeting, who wished to remain anonymous, had retained notes. Another source I spoke with said that notes taken during that January meeting were to be destroyed. Since Ferraro attended the meeting, I thought he might shed some light.

Ferraro: “Ken Gormley asked me some questions about this. And then I had something and… fortuitously, as I was going through some stuff, I found it and I don’t remember what it was. I think I sent it to him. If he has notes [that say] I had something, I would’ve sent it to him. To this day, I don’t really remember it…

“The reason why I’m so vague on this is because although [Merletti] was my witness, and I would have questioned him before the grand jury. But I don’t believe he was ever called before the grand jury for us.”

While I’m taking notes, there’s a clear silence coming from Ferraro before he continued.

“I honestly, I’m not lying to you, you can find out from him, [Gormley], if I gave him notes. I don’t remember what I found. And I don’t remember actually, because I don’t believe we kept stuff.

“What I remember is this: I remember that I talked to [Gormley], and then I was going through something and there was a piece of paper that I had that was not even in the right file, and I just happened to come across it and I was very surprised by it. So, I called him back because I felt like I almost misrepresented things when I said I don’t have anything. I sent that to him.

“Honestly… I’m not trying to be any more avoiding with you than I was with him when I found it. I just don’t recall what it was, but if he was talking to me about Merletti, it may have had something to do with that…”

Lichtman: “Did you, in fact, send that document to Ken, Judge?”

Ferraro: I sent something to him. I don’t know if it was that document.

Lichtman: “If I prompt Ken about our conversation, and mention the document you sent him about that meeting, would you mind my asking him?”

Ferraro: “I don’t mind you asking him. If he feels uncomfortable, he should call and tell me. I don’t know exactly what we’re talking about. … I vaguely remember that I may have sent it to him. You know… he can call and we can talk about it. As long as I know what it is… as long as it is something that’s relevant.”

[During the interview, I wrote: He’s halting…  searching… cautious… uncomfortable.]

Silence, again.

Lichtman: “Judge, I’m just looking to get the facts as clearly as possible. I’m not out to…”

Ferraro: “No, no I’m not playing a game here.”

Lichtman: “I know you’re not.”

Ferraro: “What I’m trying to say is, is that I don’t want to say I did something, and then have to walk that back when I find out I didn’t do it. I heard what you read, and I don’t know if that’s what I had. It may have been. I don’t remember.”

Lichtman: “I’m just trying to obtain the most accurate account of what took place in that meeting, and I hope you’ll understand this in the right light when I ask this question Judge: Are you the anonymous source that talks about these notes?”

Ferraro: “I don’t know. I’ve never even read the book and I don’t even know what the notes are. I don’t know if I’m an anonymous source or not, (laughs). I never saw his book although I intended to try to get it.

After agreeing to send him a copy of Ken’s book, I asked Ferraro if I could follow-up after the first of the year. His response: “Of course… sure.”

I tried multiple times and only connected to an answering machine. I wrote him a letter reminding him about the follow-up.

Finally, in a letter dated April 2015, Ferraro writes, “My present recollection is that after the interview I was convinced Mr. Merletti’s intentions were genuine. Also,” he adds, “I think that Mr. Merletti was actually Monte Richardson’s witness. I know he was not mine. …

“As to the allegation that I was instructed to destroy any notes: I deny that happened, at least in the context you suggest. When we left the OIC we were instructed to leave all OIC material. I recall making every effort to comply with this requirement. I was never instructed to destroy my personal notes of Mr. Merletti’s interview. I doubt I even had such notes.

“As I told you in our telephone conversation, after speaking with Mr. Gormley, I discovered a piece of paper in an old file, unrelated to my time at OIC that was relevant to my conversation with Mr. Gormley. Thus, I called him and told him about it. I may have sent him a copy, but I don’t have a certain recollection that I did. I have searched for this document again, but haven’t found it. As I recall, it was a list of topics to be covered, sort of an agenda. They were pre-interview, not post-interview notes. This I know, I do not have any personal notes taken during or after Mr. Merletti’s interview.”

The Ferraro letter was cloudy and suggested contradictions.

In our phone conversation, Ferraro says that Merletti was his witness. In the letter, he now says that the Secret Service director was Associate Monte Richardson’s witness. Okay, could be a memory issue.

In his letter he says, “I doubt I even had notes.” Then he says, “I discovered a piece of paper in an old file, unrelated to my time at the OIC that was relevant to my conversation with Mr. Gormley. …it was a list of topics to be covered, sort of an agenda. They were pre-interview, not post-interview notes.”

First, he says he doesn’t have any notes, then he says he has “a piece of paper… unrelated to my time at the OIC…” then, he says that the paper was “a list of topics to be covered, sort of an agenda. They were pre-interview, not post-interview notes.”

After speaking with Ken Gormley, I understood that his interview with Ferraro centered on his time at OIC. But Ferraro’s letter seems to be suggesting that either he had compiled “pre-interview” notes for his interview with Gormley, or “pre-interview” notes related to OIC’s  January, 2001 meeting with Merletti. It makes no sense that Ferraro would create “post-interview” notes regarding his interview with Gormley, unless Gormley asked him to review some material for a follow-up interview. As far as I know, no such review and follow-up took place.

In the letter, Ferarro also says that he was “instructed to leave all OIC material. I recall making every effort to comply with this requirement.”

Apparently, he overlooked some papers.

To be fair, in spite of Ferraro’s inconsistencies and anxiety, I never found a “smoking gun” directly connecting him to Gormley’s anonymous source. Nonetheless, the discussion about the Merletti meeting notes sure made him uncomfortable.

Near the end of our phone conversation, I asked, “So, you never believed that Merletti’s purpose was to try and cover up for the president?”

Ferraro: “No. I don’t recall seeing anything that would support that allegation…”

I spoke with Ken Gormley about Ferraro and the “paper” asking if he would share those notes. Ken was very generous with his time, but was unable to locate the Ferraro document in question. As to the question about whether Ferraro was the anonymous source, Gormley, an honorable individual who wishes to protect his own sources just as I protect mine, did not confirm or deny Ferraro as the source.

Associate Independent Counsel Monte Richardson, now a federal judge in Miami and one of the attendees at the January 18, 2001 meeting said he was constrained from discussing anything about his time at OIC due to a confidentiality agreement. When I mentioned that no other prosecutor ever spoke of such an agreement, he said, “Well, I remember signing one!” That ended the conversation.

I have never located any such agreements in OIC files at the National Archives.

In the 8 1/2 years that I have been researching this story I only found one small discrepancy to former Secret Service Director Lewis Merletti’s account. I spent the better part of an afternoon trying to pin down the exact date of the Marine Corps Law Enforcement Foundation’s black-tie dinner where he was approached by one of Starr’s FBI agents prior to Clinton’s grand jury testimony. From memory, Merletti rattled off a date that was later disputed by the organization itself.

However, in speaking with an individual who both worked for and attended the same conference, he first said that Merletti’s date was several months off (which would have cast doubt on the purpose of the FBI agent’s conversation). Then the contact backtracked, remembering that the hotel was undergoing renovation that year, and determined that Merletti’s memory was off by one day of the actual event. A further check of Merletti’s calendar during his time as director confirmed the date.

I cannot finish this report without extending my thanks to Robert Reed, National Archives and Records Administration (NARA) archivist, for his tireless work in tracking down numerous documents from the roughly 3,000 boxes of the Office of Independent Counsel files. He was an invaluable resource for my work on both the Harris Report and Merletti’s story.

Additional thanks to Kat Mathis, Merletti’s associate, who always made herself available to help; from tracking down times and dates from Merletti’s calendars as director to other materials.

And finally Lew Merletti, who had been tested as no previous Secret Service director had, and who, in spite of the personal consequences, in spite of threats and pressures, chose to stand on honesty and principle at a time of great political crisis and remains a profile in courage and integrity for us all.

2 comments… add one
  • Gary Lange April 21, 2016, 10:17 am

    Hmm… As an ethics professor, you really do check the veracity of tips, words, reports! Keep up the good work Jim! Again, glad to know there are still people like you and Lew Merletti and thanks for your inspiration, courage and integrity.

  • Maj. John n. Baldwin (Ret.) md facs April 21, 2016, 3:24 pm

    Very few individuals step up into the visible spectrum and expose the wet and slimy places to the sunlight. Jim’s courage is something I appreciate, and hope all of you do, as well. With admiration.

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