“They’re much better at confrontational interviews, much better at going to someone’s house and handling the unexpected.’’
“I still think it’s important to have a lawyer along who understands the antitrust law,’’ Mann said. “It would help.’’
Hartzler couldn’t believe what he was hearing.
“How many confrontational interviews have you done?’’ he snapped. “How many doors have you kicked in? How many arrests have you made?’’
Shepard and Herndon listened in, silently siding with Hartzler. They weren’t familiar with the practices at the Antitrust Division and weren’t comfortable with the idea of Mann tagging along. But Mann stuck to her position.
“Well, Joe, I’ve been on confrontational interviews,’’ she said. “And I think it’s smart for us to be on those interviews.’’
Hartzler did a slow burn. This was so far outside standard practice for a U.S. Attorney’s office that he couldn’t believe it. He thought Mann was snowing him.
“Robin,’’ he said sharply, “we need people handling this who know what they’re doing.’’
“Would that be you?’’ Mann shot back.
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the subject. A few minutes later, Mann raised a technical issue on another matter.
“Do you agree with that, Joe?’’ she asked Hartzler.
Pause.
Nothing.
Hartzler had left the conference call.
Frances Hulin, the Springfield U.S. Attorney, worried about the conflicts with Antitrust. Clearly, somebody needed to take charge. Bickering among prosecutors would only help the potential defendants. Hulin was planning to travel to Washington and decided to use the opportunity to meet with Anne Bingaman, the Assistant Attorney General in charge of the Antitrust Division. Between them, she hoped, they would work out this problem. Hulin made the arrangements and then called a few of her assistants to her third-floor office to announce her decision.
“I’m going to meet with Anne Bingaman,’’ she said. “I want to make a pitch to take over the case.’’
Hulin looked at her assistants and asked what they thought of the idea.
“Institutionally,’’ Hartzler said, “the Antitrust Division would have to resist. If U.S. Attorney’s offices around the country start picking up criminal antitrust cases, there would be very little reason for the Antitrust Division to handle them.’’
Well, Hulin said, such changes had happened before. The Tax Division used to prosecute all criminal tax cases; now many were filed by U.S. Attorneys. She turned to Rick Cox, her First Assistant.
“I’ve got to side with Joe,’’ he said. “I don’t think this is likely to happen.’’
But Hulin was determined to try. On Friday, February 24, she showed up in Washington at the Antitrust Division’s offices at the Department of Justice. At first, Anne Bingaman was busy, and Hulin had to return a couple of times. When they finally got together, Bingaman was friendly and gracious, quickly whisking Hulin into her office. Both women sat down. After some initial chatting, Hulin got to the point.
“As you know, my office has been working for some time on the ADM investigation,’’ she began.
That night, Herndon was eating out with his family at a local Applebee’s restaurant. His parents were visiting from Kansas City to Eich_0767903277_5p_01_r1.qxd 10/11/01 3:56 PM Page 278 278
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see their new granddaughter and for once, Harvest King was not in the forefront of his mind.
Herndon was sitting at the table when his pager went off. He checked the number; it was Rodger Heaton.
“I’ll be right back,’’ he told his family.
He headed to the restaurant’s pay phone and had Heaton on the line in a few minutes.
“I just talked to Frances,’’ Heaton said. “She says that Anne Bingaman just gave her the case. She told Frances ‘You’re in charge.’ ”
Herndon was stunned. “Are you sure, Rodger?’’
“That’s what Frances says. She said that Anne thinks Frances’s plan to go to the grand jury in March and then go public soon after sounded great.’’
Herndon glanced around the restaurant, trying to collect his thoughts. This was too much, too fast.
“Does Antitrust know this?’’ Herndon asked. “I mean Antitrust in Chicago.’’
“There’s going to be a meeting on Monday. Your bosses are all going to come over, and we’re going to talk about this. But yeah, we’re going forward.’’
The two men wrapped up the call. Herndon was astonished; after all this time, the tenor of the entire case had changed. Now, there was only one group of prosecutors in charge, and the raids were finally going to take place—quickly. Shepard needed to know right away. Herndon dropped more change in the pay phone and called his partner at home.
“Brian, you’re not going to believe this,’’ he said. “I just spoke with Rodger Heaton. Frances Hulin has the case now, and they’re talking about grand jury next month and going public next month.’’
“You’re kidding!’’ Shepard said. “No way. They didn’t give up this case.’’
“How can there be a miscommunication? You would think something like this would be clear as day.’’
Shepard paused. “What are we going to say to Robin and Jim?’’ he asked.
At 1:00 on Monday, Shepard and Herndon showed up in Hulin’s office along with Stukey, John Hoyt, and Kate Killham. Heaton and Hartzler were already there.
Hulin described her meeting with Bingaman, saying there was no doubt about the outcome. “We’re in charge of the case.”
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presented to a grand jury for indictment in two weeks. The raids would take place April 3.
“Let’s hit ’em fast,’’ Hulin said. “The case is not complicated if we keep it to lysine. A jury will convict off the tapes. We won’t need many witnesses.’’
Everyone headed out, ready to put the plan into action. But almost no one believed that the Chicago antitrust lawyers would accept such a crushing defeat without putting up a fight.
In Washington, Bingaman was at her computer, typing an e-mail to her deputy and the Chicago office.
“Frances Hulin came to see me,’’ Bingaman typed. “She’s concerned that we coordinate this case appropriately, although it doesn’t sound as if we have not. She just wanted to touch base with me to tell me her plans to take her cooperating witness before the grand jury on March 6.’’
Bingaman explained how, in their meeting, Hulin had stressed the importance of speed.
“It was a cordial visit, and she seemed genuinely interested in working closely together with us,’’ she typed. “I was somewhat surprised that the March 6 date was coming so soon, because I had not previously been aware of that date.’’
Bingaman finished and hit the Send button.
News of Hulin’s maneuver hit Chicago like a bomb. The prosecutors raged at what they saw as her high-handedness. Some even suspected that Herndon and Shepard had been behind the effort. The FBI had made no secret about its impatience with the division’s slower pace. But this was an antitrust case. How could Bingaman not see what was happening?
Together, the prosecutors—led by the new office chief, Jim Griffin—
composed their own e-mail to Bingaman’s deputy, Gary Spratling.
“It was our understanding that we would not be presenting the witness in March,’’ they wrote. “Ms. Hulin’s proposal is precipitous.’’
They explained several reasons why the cooperating witness should not be put in front of the grand jury quickly, adding one note at the end.
“The important issue here
is not when the CW testifies, but whether the Antitrust Division or Ms. Hulin makes this and other future litigation decisions.’’
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By that afternoon, the turf battle between the Antitrust Division and the Springfield U.S. Attorney had spun out of control. No one—except perhaps Hulin—was sure who was running the case anymore. A conference call was scheduled among Hulin, the Antitrust Division, and the FBI supervisors in Springfield. Stukey and Hoyt went to Hulin’s office, gathering at a table around a speakerphone.
For the first twenty minutes of the call, nobody raised the main issue. The call descended into chitchat, as everyone pledged cooperation. Bingaman eventually launched into a discussion of the Antitrust Division’s accomplishments.
“We’ve made marvelous changes here, streamlining the department,’’
she said. “We want strong prosecutions and nothing but the best attorneys.’’
As Bingaman droned on, Hoyt became restless. He decided to get to the point.
“Excuse me, Ms. Bingaman,’’ he interrupted. “This is John Hoyt from the FBI. One of the confusions here for the FBI is, who is the head prosecutor? Who is going to be in charge of this investigation?’’
Silence.
Hulin spoke up. “Remember, we discussed this? We talked about my office taking charge of the case?”
Silence.
Finally, Bingaman spoke.
“I have remade this Antitrust Division,’’ she said. “I am the Assistant Attorney General responsible for antitrust cases. I have been personally appointed to that task by the President of the United States.”
Pause.
“And it will be over my dead, kicking, screaming body before this case is taken away from the Antitrust Division. We have been in charge, and we will continue to be in charge. Thank you very much.’’
Hulin went pale. No one had expected Bingaman to lash out, or could understand how the two lawyers had miscommunicated so badly. A few perfunctory words were uttered, if only to put distance between Bingaman’s sharp statements and the end of the call.
“Thank you all very much for your time,’’ Hulin said as the conversation closed. She pushed a button on the speakerphone and closed her notebook.
“Well,’’ she said to the assembled group, “I guess we’re out of this.’’
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After the conference call, the Chicago antitrust lawyers telephoned Spratling, the division deputy. Everyone was elated at Bingaman’ s performance.
“God, she’s good,’’ Spratling said. “When she wants to do something like that, she’s fantastic.’’
The Chicago lawyers—Mann, Mutchnik, Griffin, Booker, and Marvin Price—felt happy and wrung out. After work, they headed to a bar at the John Hancock Center. There, they laughed and toasted with margaritas, ready to tranquilize their frayed nerves following the fervent, victorious fight. The departure of Hulin’s office from the case left Shepard and Herndon reeling. Not only were Heaton and Hartzler out of the picture, but now the prosecutors who were on the case seemed to believe that the agents had tried an end run around them. They felt like the children of a bad divorce.
Almost two weeks passed without a call from the antitrust lawyers. After years of almost daily contact, the change sent a strong message. Each morning, the agents discussed the strain. When were the lawyers going to call? Was today the day?
Finally, they decided to make the first move. Shepard and Herndon picked up extensions in the Decatur office and dialed Jim Mutchnik. He seemed approachable, and, unlike Mann, had not dedicated years of his life to ADM. Mutchnik, they figured, might give them the benefit of the doubt. Besides, they couldn’t keep working the case without talking to somebody.
“Jim Mutchnik.’’
“Hey, it’s Brian and Bob,’’ Herndon said.
“Hi, guys,’’ Mutchnik said. His tone was professional, maybe a bit wary.
The three men spoke. Gradually, the ice between them seemed like it was beginning to thaw.
For two weeks, the agents called Mutchnik every day, transforming him into their lifeline to the Chicago office. But the problems between them had never been faced head-on; the conversations at times were stilted and laced with an undertone of suspicion.
One day, the agents were speaking with Mutchnik when a click sounded on the line. The agents paused.
“Are you recording this?’’ Herndon asked.
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The question had been sarcastic. But it was the wrong time to be joking.
“I can’t believe you would ask me that question!’’ Mutchnik snapped. “I wouldn’t do that to you. We’ve been talking for two weeks and you still don’t trust me!’’
Herndon backpedaled. “Jim, you’re overreacting. I was joking, making light of this tension between us.’’
“You weren’t joking.’’
“Yes, I was.’’
Mutchnik took a breath. In his mind, the agents had learned nothing. The conversations over the past two weeks had simply been their attempt to pump him for information.
“Fine,’’ Mutchnik said. “Let’s just finish up what we need to do.’’
The call ended uncomfortably. Soon, Herndon called back.
“Listen,’’ he said. “I just want to apologize.’’
“I want you to understand something, Bob,’’ Mutchnik said. “I’m not your inside guy. I’m not your cooperating witness. I don’t want that role. I won’t record you, but I won’t be your inside guy here. If you want to understand what we do, great. But don’t treat me the way you treat an enemy.’’
The blowout served its purpose. All of the emotions and anger were finally on the table. From there, their relationship had nowhere to go but up.
Later that month, Mann and Mutchnik traveled to Washington to brief Spratling and other top antitrust officials. Jim Griffin and Marvin Price, his deputy, both came along.
They met in Spratling’s office in the Justice Department building. Spratling, a large man with an eager, friendly face, was waiting for them. He called in a few associates before the briefing began. Robin Mann took the lead. She had brought along a copy of the greatest-hits tape, and loaded it into Spratling’s video player. For more than an hour, Mann narrated the events on the screen. She seemed comfortable and confident.
His hand covering his mouth, Spratling shook his head, awed by what he saw.
“My God, I can’t believe that,’’ he said while watching Mick Andreas at Irvine. “This is amazing.’’
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“You have just done a great job,’’ Spratling said, shaking Mann’s hand. “I can’t say enough.’’
With the meeting over, Mann and Mutchnik headed downstairs for lunch, feeling pretty good. Promising to catch up with them, Griffin and Price stayed behind to discuss a few personnel issues. When they finished, Spratling asked to speak with Griffin privately.
“Jim, this a great case,’’ Spratling said. “And you’ve had a lot of experience in twenty years.’’
Griffin listened, already knowing where Spratling was headed. Mann and Mutchnik returned from lunch with the sense that something was up. Griffin had never joined them in the cafeteria. Spratling asked the two lawyers into his office, inviting them to take a seat.
“You have done a wonderful job on a very important case,’’
Spratling told them. “Now that this is getting ready to move to th
e next stage, I tried to write down all the best trial lawyers in the division. I asked Joe Widmar to do the same thing. And we both had Jim Griffin at the top of our list.’’
Realization struck Mann and Mutchnik. They didn’t even need to hear Spratling say the words.
“Jim’s going to be your new lead attorney,’’ Spratling said. The two lawyers didn’t know what to say. Mann felt crushed, but said little. Neither knew it, but Griffin had said he would step aside if Mann and Mutchnik handled the news badly. But both kept their own feelings buried as best they could.
Griffin came in and assured Mann and Mutchnik that their roles would still be significant on the newly constituted team. Mann and Mutchnik nodded and asked questions.
When the meeting was over, Mann, Mutchnik, and Price headed downstairs and flagged down a cab. They rode in silent anger for several minutes. Finally, as the cab approached L’Enfant Plaza, one of them gave voice to their shared suspicion. Appointing Griffin as lead counsel was not some new idea that had occurred to Spratling today. This whole meeting had been a setup, one that had been put in place a long time ago.
Griffin moved quickly to smooth over the raw feelings between the Chicago antitrust office and the FBI. He set up a meeting in Springfield, planning to introduce himself to the FBI supervisors. But Eich_0767903277_5p_01_r1.qxd 10/11/01 3:56 PM Page 284 284
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first, on the evening of March 20, he arranged for a dinner between the lawyers and the agents.
The group gathered at the restaurant in the Holiday Inn South in Springfield, just past six-thirty. Sitting around a large circular table, the discomfort was palpable. Shepard, who usually opened meetings with a few comments, said little. The agents studied the new lawyer; his voice was soft and his demeanor charming. It was hard to imagine him playing hardball.
Griffin guided the conversation, talking amiably about how Chicago’s cold weather was playing havoc with his running schedule; already, a ski mask had frozen to his face during a jog. Attempting to ease the tension at the table, Herndon and Shepard joined in, comparing their workouts with Griffin’s. There was a pause. Griffin shifted to the matter at hand.
“We’re all in agreement on where we need to go from here,’’ Griffin said. “Let’s get this thing going, get this train on the track. We’re going to get these guys, and we’re going to do it soon. You’ve done a great job getting the evidence. My job now is to take all your hard work and not disappoint you.’’
The Informant Page 36
