White House Wag: Clinton Considers Pardon

W A S H I N G T O N, Sept. 25, 2000 -- Is a top executive in the Tyson chicken company getting a raw deal?

That’s what the members of Arkansas’ congressional delegation think. All six of them, Republicans and Democrats, signed a letter to President Clinton urging him to pardon Tyson Foods official Archie Schaffer, who was sentenced to a one-year prison term today in federal court in Washington, on one count of providing an illegal gift to former Agriculture Secretary Mike Espy. The letter was sent before the decision was made.

U.S. District Judge James Robertson, in making the ruling, said Schaffer deserved only probation and a fine, but noted he was required to impose the minimum prison sentence given the law under which Schaffer was convicted.

Schaffer’s present trouble stems from a birthday party thrown in Russellville, Ark., in 1993 for his company’s chairman, Don Tyson. Schaffer, who was Tyson’s vice president for media, public and governmental affairs, arranged for Espy and his girlfriend to attend the party. Tyson also picked up the tab for the couple’s airfare, lodging and meals.

Press reports about Tyson’s largesse led to a Justice Department inquiry, and eventually Independent Counsel Donald Smaltz was appointed to investigate allegations that Espy accepted gifts from Tyson and others with business before the Agriculture Department. Smaltz obtained an indictment charging Schaffer with various offenses, including wire and mail fraud, providing illegal gratuities and conspiracy with a Tyson lobbyist. Four of the seven counts were thrown out by Robertson during the 1998 trial.

The jury ultimately convicted Schaffer of just two counts: one for buying four tickets for Espy to an inaugural gala in 1993 and another in connection with the trip to the Tyson birthday party. After the trial, Robertson threw out those charges, too, on grounds that prosecutors never proved that Schaffer’s gifts were related to actions Tyson wanted Espy to take. An appeals court later reinstated one conviction, ruling the law imposes a stricter standard on gift-giving to Agriculture Department employees than on gifts to other federal workers.

The main irony Schaffer’s supporters point to is this: Less than six months after Schaffer was convicted of making an illegal gift to Espy, another jury acquitted Espy of receiving that gift and of all the other charges against him.

“It seems incredibly unfair,” said Woody Bassett, Schaffer’s attorney and brother-in-law. “If there was ever a case that warranted a presidential pardon, this is the one.”

The string of pro-defense rulings in the case suggests that the judge has been sympathetic to Schaffer’s plight. Robertson even tried to grant Schaffer a new trial on the remaining charge, but the appeals court overruled him there as well. Schaffer’s lawyers had asked for probation, but even some supporters of leniency acknowledged that federal sentencing guidelines required he be given some prison time. Prosecutors, who described Schaffer as being at the core of Tyson’s illegal effort to influence regulators, sought a jail term of as long as three years.

Pardon Could Make Matters Moot

Of course, if President Clinton issues a pardon, the whole matter would be moot, save for Schaffer’s legal bills and years of aggravation. So will he? The tea leaves suggest he will, though probably not until after the November election.

The president has made clear that he’s no fan of Smaltz’s investigation, which has taken six years, spent about $23 million while recovering roughly $10 million for the treasury. (It’s not well known that, as in the Whitewater case, the White House helped delay the Espy probe by fighting secret court battles to withhold information even as it publicly spoke of cooperation.) The prosecutor has also clashed with the Justice Department, which believed he was exceeding his mandate.

Smaltz has also pursued some seemingly trivial matters, like six bottles of wine given to Espy by a California vineyard. In fact, some critics of the independent counsel law say that while Ken Starr was branded as a modern-day Inspector Javert, Smaltz more closely fits that bill. His office once ordered wristwatches with an “In Re: Espy” inscription on them; Smaltz’s official letterhead still bears Espy’s name.

In 1998, Clinton turned an unveiling of Espy’s portrait at the Agriculture Department into a celebration of his acquittal. Clinton actually saluted the defense lawyers, a tribute so unusual that even the president questioned its propriety. “I don’t know if this is appropriate or not, but I think we ought to give Mr. Weingarten and Mr. Wells a hand and ask them to stand,” Clinton told the applauding crowd. “They did a heck of a job.”

The president and his aides have also brought up Smaltz’s probe when asked about the excesses of the independent counsel law, which Clinton once supported but now opposes. At a press conference in June, the president lumped in Espy’s inquiry with other investigations into what he called “bogus” allegations.

“A lot of these other so-called scandals were bogus. Mike Espy was acquitted,” Clinton remarked.

In the president’s home state, there does seem to be a groundswell of support for Schaffer and a deep reservoir of bitterness towards Smaltz. “Free Archie” bumper stickers have been spotted. Some have even taken to referring to him as Joan of Arkansas. The state’s Republican governor and even the fiercely anti-Clinton editorial page of the Arkansas Democrat-Gazette are backing the clemency plea. The lawmakers’ letter backing a pardon chooses unusually forceful language, telling Clinton, “There is no other choice.”

Some of the support for Schaffer may stem from the fact that the Smaltz probe has been a long and costly headache for the Tyson company, which is one of the state’s biggest employers. “This case started about the time the earth cooled,” Bassett jokes.The company itself eventually admitted it provided illegal gratuities to Espy and agreed to pay a $4 million fine and $2 million in court costs. Its most senior officials escaped prosecution in the deal.

“A Longtime Acquaintance”

White House Spokesman Elliot Diringer confirmed that the request for clemency “is received and under review.” One thing that makes Schaffer’s case unusual is that Clinton knows him. Diringer described Schaffer as “a longtime acquaintance of the president by virtue of both of them having been involved in government and politics in the state of Arkansas.” (A conversation First Lady Hillary Clinton had with Schaffer’s wife, an Arkansas insurance commissioner, was also investigated by Whitewater prosecutors, but since that investigation was recently closed it may not be much of an issue.)

There is some precedent for Clinton pardoning a criminal with a personal connection to him. In 1995, he pardoned Jack Pakis, a Hot Springs, Ark., resident described in press accounts as Clinton’s mother’s bookie. Pakis had been convicted of running an illegal gambling operation in 1972.

One more twist in the serpentine Schaffer case: A pardon would be a slap not just at Smaltz but at Robert Ray, the man who replaced Ken Starr atop that independent counsel probe. Ray, who used to work for Smaltz, was the lead prosecutor at Schaffer’s trial.

Going Soft?

As his term winds down, the president, who reversed the public perception of Democrats as soft on crime, seems to be showing more compassion for those caught up in the criminal justice system. He recently freed several drug convicts who were serving long prison terms. And he has expressed concern about the federal government’s actions in prosecuting nuclear scientist Wen Ho Lee.

Margaret Love, who served as Clinton’s pardon attorney until 1997, has complained that this president has been stingier than others in using his pardon power. But she says Clinton’s experience with Ken Starr and other prosecutors may have softened him a bit.

“Someone who has suffered at the hand of someone who has unaccountable power is far more sympathetic, and has to be far more sympathetic, to cases where other people claim to have been put in that position,” Love told ABCNEWS. “That’s just human nature.”

Love declined to talk about Schaffer’s case, but said that she hopes Clinton’s final pardons will extend beyond those he’s friendly with.

“He doesn’t need to do a lot, but he needs to send a signal,” she said. Love echoed the pleas of many federal judges who say that nonviolent drug offenders are serving unreasonably long prison terms as a result of mandatory minimum laws passed in the 1980s.

“When you see judges bringing cases in, that’s really pathetic,” she said. “They have to look at the system because it’s not working right.”

Josh Gerstein has covered the White House for ABCNEWS since 1997.