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". . . And Nothing but the Truth"?


By Alexandra D. Korry

PRESIDENT CARTER'S DECISION to fire David W. Marston, the Republican U.S. Attorney in Philadelphia, reeks of more than just political patronage and forgotten campaign promises. It is one in a series of White House faux pas that produce indignation on the part of all Americans regardless of where they fall on the political spectrum. As one observer of Philadelphia politics told a national magazine last week, "It's frightening. He (Carter) doesn't even know what's going on here--and he's supposed to be dealing with the Russians and the Chinese!"

It is a case of a 37-year-old federal attorney ousted by a new and Democratic administration. But it is more than that. It is a case of presidential sloppiness, of Justice Department inefficiency, of possible obstruction of justice--certainly unwittil on the President's part, possibly initiated by Re Joshua Eilberg (D-Pa.). It is a case of conflicting testimonies and stories given by leading law enforcement officials in the Justice Department, by Congressmen and even by the President.

THERE ARE MANY unanswered questions that have surfaced in the aftermath of the "Marston Massacre," the Philadephia Story, or what has come to be known as simply the Marston case. Why did Congressman Eilberg personally call Carter last November to ask for Marston's immediate removal? Did Carter know that Marston had launched an investigation of Eilberg because of questionable financial dealings? Was Benjamin Civiletti, the head of the criminal division of the Justice Department, informed of the Eilberg investigation by one of his high-level aides?

More important, though, why did Carter mislead the public about the Marston case at his January 13 press conference? It is distressing that the American people have watched their born-again president lie and subsequently be caught on two cases involving Justice Department investigations. Equally upsetting is the arrogance marking Carter's explanations of his blatant deceptions. Somehow, the president wants us to believe he is uninformed or maybe he simply thinks we are naive. But to whitewash his sins by publicly denying any prior knowledge, and citing the news media as his only source of information on the two cases, is going too far.

Last September 29, Carter was asked to reveal how he was going to reach a decision on the Justice Department's investigation into perjury charges against former Central Intelligence Agency (CIA) director, Richard Helms. Carter answered, "He (Bell) has not consulted with me, nor given me any advice on the Helms question. I am familiar with it through reading in the press." He lied. In fact, on July 25, Carter had met with Attorney General Griffin Bell to discuss the case in consultation with none other than national security advisor, Zbigniew Brzezinski and vice-president Walter F. Mondale. Subsequent intensive pre-trial lobbying by Edward Bennett Will: ms, Helms' lawyer, led to a behind-the-scenes deal with the Justice Department permitting the former CIA head to plead nolo contendere to misdemeanor charges instead of prosecuting him for perjury committed before the Senate Foreign Relations Committee in 1973.

In a press conference last November 11, the White House press corps brought Carter to task for his obvious lack of candor at the earlier press conference. Asked why he had neglected to mention his July 25 meeting with Bell, the president tried to weasel his way out:

The September 25 [he meant to say July 25] meeting was not in the first place, a thorough discussion of the Helms case. It was a brief meeting at which the Helms case was outlined with no secret material discussed, no documents examined, no mention made of people or others who might be involved, or if the trial did go to the conclusion.

Carter said this a week after sending his press spokesmen out to preach the in-house line to reporters that his September 29th remarks reflected his belief that some reporters already knew of the July 25 meeting.

It is doubtful the meeting was considered as inconsequential by Carter as he would have us believe. The huddle did after all address the prospect of an unprecedented indictment against a former head of the intelligence community. In any case, the president was forced to resort to explanations of this sort because of his own initial ineptness. Or sloppiness. Call it what you like, but the president of this country lied because the Watergate ethos of clearing one's name of complicity through cover-up is easier than admitting error.

HIS SAD FACT demonstrating the administration's penchant for containment is confirmed by a reenactment of a similar string of events two months later. On November 4, Congressman Eilberg called Carter to tell him that Marston was using his office to advance his political career and he and his fellow Pennsylvania Democrats felt the Republican attorney should promptly be removed. Either three or four days later--the record is still not clear--Carter called Bell to inquire about the Marston case to ask him about the status of the U.S. attorney in Philadelphia. Bell answered that he expected to replace him within a year. Carter then said, "I wish you'd hurry," explaining that Eilberg had called claiming that Marston "doesn't do anything but prosecute Democrats."

At his January 12 press conference, Carter was queried as to why he was removing Marston, an attorney with an impressive one-year record of prosecutions and convictions, especially of Democrats as prominent as Herbert Fineman, a former Speaker of the Pennsylvania House of Representatives. The president replied:

I have recently learned about the United States Attorney named Marston. This is one of hundreds of United States Attorneys in the country and I was not familiar with the case until it became highly publicized. . . I've not discussed the case with the Attorney General and asked him specifically what was wrong with Marston.

The facts, however, speak differently. Pressed by the assembled reporters, he admitted that he was called by Eilberg. He added, however, he had talked to Bell before his telephone conversation with Eilberg. Another untruth. Bell has repeatedly told reporters that he had discussed the Marston case with the president three or four days after the Eilberg call.

By the end of the news conference, Carter had become so deeply enmeshed in his own maze of lies that there would be no turning back. Mistake or not, Marston would be fired, if only to save the White House and Justice Department from embarassment. Marston was fired on January 20th, prevented from completing his four-year term.

DEJA VU. Within two months Carter had repeated his inept handling of a Justice Department matter. Twice he lied at his press conference. Twice he was caught. Both times, he presented a somewhat different story from that of his attorney general. Why did the president who campaigned on a platform of an "open administration deceive the American people? He wanted to hasten the removal of Marston because he was a Republican U.S. attorney determined to clean up the Democratic machine of Philadelphia. Replacing a federal appointee of an opposing political party was nothing new--political patronage has existed and been practiced by successive administrations for many years. But his embarassment over playing the established rules of the game led to a cover-up that transformed the local case into a national headliner. He became suspect to the charge of possible collusion to obstruct justice. All because he lied. He had promised in the campaign to select attorneys on the basis of merit, not politics. Once in Washington, however, he found the promise too hard to keep; he owed too many favors. In Philadelphia it was the Rizzocrats who had helped him defeat Gerald Ford. It was the Rizzocrats who Marston had been chasing throughout his term. Carter was forced to play politics. But he compounded the embarassment with lies, and those in turn were compounded by conflicting stories at the Justice Department on the progress of Marston's investigation into dubious financial dealings in connection with the construction of a new wing of the Hahnemann Hospital in Philadelphia.

Marston learned last July that Rep. Daniel J. Flood (D-Pa.) had allegedly secured a $14.5 million federal grant for financing the new wing. Eilberg's law firm subsequently obtained the rights to handle the construction contract and the hospital contracted the engineering firm recommended to them by Flood. Based on this information, Marston began a full-fledged investigation, aided by the testimony of a former Flood aide, Stephen Elko, who turned state's evidence after his recent bribery conviction in Los Angeles last October.

On November 13, 11 days after the signing of Elko's immunity papers, Marston took aside Associate U.S. Attorney General Michael Egan at a Washington conference of United States Attorneys to ask Egan whether he would be kept on to finish out his term. Egan informed him then of the Eilberg-Carter and Carter-Bell conversations. Three days later, on November 16, Marston met with Russell T. Baker, the number two man in the criminal division of Justice, to tell him about the active status of the investigation into Eilberg's dealings with the Hahnemann Hospital, and to suggest that the president may be an unwitting accomplice to Eilberg's schemes. Baker had co-signed Elko's immunity papers with Marston, in which Rep. Flood's name appeared on the last line in connection with the federal grant.

Baker now swears that he believed the investigation was still in its preliminary stages at the time; that there was no change in its status from when he was first informed of it in August. He also swears he twice told the head of the criminal division, Benjamin Civiletti, about the investigation of Eilberg. "My notes indicate that I reported my conversation with Marston to Mr. Civiletti some time on or after November 25, 1977," Baker has stated.

A curious phenomenon appears: not only do Baker's statements contradict Marston's, but they don't quite fit into the picture Civiletti has painted either. Civiletti claims the only time he heard about the case was in the spring; Baker says he told him in August. That fact notwithstanding, Civiletti says, "I have never heard anything more concerning the matter and I do not know anything about the Philadelphia U.S. Attorney's investigation of any matters, subjects or persons."

TWO OF THE NATION'S highest law enforcers present contradictory testimonies, each anxious that the Justice Department will not be held responsible for failing to inform Carter of the Eilberg investigation, and the nation is to believe in the integrity of its servants? We are left with the distinct impression of a rather messy cover-up in two branches of the federal government--the judiciary and executive--and we are to believe the days of Watergate are over?

Benjamin Civiletti went before the Senate Judiciary Committee last week to begin confirmation hearings on his appointment as the new U.S. Deputy Attorney General. The committee said last week the Marston case would certainly be a primary area of questioning, but we should seriously wonder whether they will bear in mind the statement made by Gil Scutti upon his January 21 resignation as the chief of Marston's criminal division immediately following Marston's removal. Evoking the "stay away" advice given by Nixon White House aide Gordon Strachan before the Senate Watergate Committee five years ago, Scutti said, "I'm forced to leave the job I love because there is no justice in the Department of Justice."

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