The MacNeil/Lehrer Report; The David Marston Case

ROBERT MacNEIL: Good evening. President Carter has poked a stick into a political hornets` nest in the case of David Marston, the U.S. attorney the Carter administration wants to replace in Philadelphia. Marston, a Republican, is to be fired after successfully prosecuting two Democrats prominent in Pennsylvania politics. Marston has implied that he`s losing his job because his latest investigations touched two Democratic Congressmen. What brought the hornets swarming around the President`s head was his admission at last Thursday`s news conference that he`d discussed Marston with one of those Democratic Congressmen, Joshua Eilberg. What Mr. Carter said then has provided the ammunition for many of the protests and charges since. Here`s what the President said:

(January 12, 1978.)

FIRST MEMBER OF THE PRESS: Mr. President, you promised during the campaign to appoint U.S. attorneys strictly without any consideration of political aspects or influence, strictly on the basis of merit. Shall we first of all assume that that is also your standard for removing U.S. attorneys, and if so, why are you removing the U.S. attorney in Philadelphia, David Marston, who on the surface seems to have a credible record which includes the prosecution and conviction of a number of prominent Democrats?

PRESIDENT CARTER: Well, the answer to the first part of your question is certainly yes. I intend to make sure that all the appointments that are made to federal judge ships and also to U.S. attorneys are made on the basis of merit. And I think until each appointment is observed very carefully, who was in office compared to who is the replacement for that person in office, that it would be hard to criticize a particular instance. I have recently learned about the U.S. attorney named Marston. This is one of hundreds of U.S. attorneys in the country and I was not familiar with the case until it became highly publicized. The Attorney General is handling the investigation of the replacement for Mr. Marston; I can`t say that Mr. Marston has or has not done a good job. He was appointed at the last minute under the previous administration. He was not a practicing attorney, had never had any prosecuting experience, and the only criticism that I`ve heard about him was that he had a very heavy commitment to calling press conferences and so forth when he obtained evidence or when a grand jury took action in an indictment. I think this is not unique in the country. I`ve not discussed the case with the Attorney General and asked him specifically what was wrong with Marston, I don`t know who he will recommend to me for the replacement.

SECOND MEMBER OF THE PRESS: There have been reports -- and first of all, Mr. Marston is in the midst of an investigation which involves two Democratic Congressmen from Pennsylvania -- there have been reports that at least one of them has sought to contact the White House or you yourself to in effect get Mr. Marston off their backs. I wonder if you are aware of any such contacts or attempts, however informal, and what your reaction to such a contact would be.

CARTER: The only contact I`ve had with any Congressman directly was, I think Congressman Eilberg called me and asked that we look into it. At that time the Attorney General had already decided to make the change. When I talked to the Attorney General about it before Eilberg had let his views be known on the telephone call, he said that the replacement would be made and that he hoped that the Democratic Congress members who had shown an interest in it would not be involved in trying to decide who would be the replacement. And this has been an assurance given to us by Mr. Eilberg. As far as any investigation of members of Congress, however, I`m not familiar with that at all and it was never mentioned to me.

SECOND MEMBER OF THE PRESS: Could you tell me, sir, what reason Mr. Eilberg gave for asking you to look into it, and what did he mean by "it?"

CARTER: He wanted the replacement process to be expedited....

MacNEIL: That was President Carter on Thursday. Later that day Senator Richard Schweiker, the Pennsylvania Republican, charged that the President has not been straight with the American people, saying his explanation was self-contradicting and lame. The Senator added, the people deserve to know what did President Carter know, and when did he know it. Since then thousands of messages have been received at the White House protesting Marston`s removal. Tonight, is the Marston case a cover-up or a political blunder, and what does it say about Mr. Carter`s pledge to de-politicize the appointment of U.S. attorneys? Jim Lehrer is off this week. With us in Washington is Charlayne Hunter-Gault. Charlayne?

CHARLAYNE HUNTER-GAULT: Robin, David Marston`s wife has described him as not a political person, but his political activities brought the young Republican lawyer to the attention of top Republicans in Pennsylvania. He was defeated twice in bids for the state legislature, but he went on to work for three years as chief legislative aide to Senator Richard S. Schweiker, also a Republican. When controversy erupted over the lack of headway being made into corruption in Philadelphia, the U.S. attorney at the time resigned. That`s when Marston threw his hat into the ring and won out over several other candidates. Thirty-three years old at the time, Marston set about ridding the U.S. attorney`s office of old clubhouse- approved assistants, replacing them with bright young lawyers like himself, whose politics, he said, were a mystery to him. He indicted, prosecuted and convicted Republicans and Democrats alike. His convictions include the Democratic Speaker of the Pennsylvania House and a former Chester County Republican Chairman. One of his most recent cases was a 110-count indictment against Henry Cianfrani, a powerful Democratic state senator. As Robin said, the present controversy stems in part from a current investigation involving two other Democratic Congressmen in Philadelphia. One of them, Joshua Eilberg, has urged President Carter to expedite Marston`s ouster. Robin?

MacNEIL: We asked the administration to give us a spokesman from either the White House or the Justice Department, but they were not willing to send someone. Many of the protest calls to the White House came from Philadelphia. One group which became involved in fighting for U.S. attorney Marston is an ad hoc committee of lawyers from major Philadelphia law firms. Heading that committee is attorney Henry Reath. Mr. Reath, as I said, Senator Schweiker says the President has not been straight with the American people on this. Do you agree with that?

HENRY REATH: I do definitely agree. Not only has the President not been straight, but neither has his Attorney General. Commitment was made by the Attorney General on behalf of himself and of President Carter that merit selection and merit retention of United States attorneys would be the policy of his administration. That was done at the confirmation hearings before Attorney General Bell took office. His subsequent actions indicating that "Marston is a fine young man but this is the way the political system works" just doesn`t square with his earlier commitments when he was on the high road seeking office and public power.

MacNEIL: Some people are going so far as to accuse the White House here in the Marston case particularly of a cover-up, or an obstruction of justice.

REATH: That is a serious charge, and one that I couldn`t make. I can say, as I`ve been authorized by our committee to make and I have made frequently, is that this has the serious appearance of an obstruction of justice, and a matter that cannot be let go unnoticed or uninvestigated.

MacNEIL: Could you just, for those who aren`t too familiar with the case, spell out why it has the appearance of an obstruction of justice?

REATH: Well, the reason it has the appearance is that the very person who we now know and the President has confirmed was seeking the ouster of United States attorney Marston, Congressman Eilberg, is also a person who is reported to be under investigation, or the target of a possible investigation, in connection with funds for Hahnemann Hospital in Philadelphia. Therefore when a Congressman asks the President of the United States to remove a prosecutor who may be on his heels, this certainly has the appearance of an obstruction of justice, and very serious overtones for the country.

MacNEIL: Congressman Eilberg has said, for the record, that he has not been informed that he is the target of an investigation. The Attorney General said today that he`s going to send a team of three subordinates to Philadelphia to see whether the controversy is in anyway impeding the business of the prosecutor`s officer there, and he said, "We will do everything possible to ensure that no wrongdoing goes unpunished" in the Eastern District of Pennsylvania. Does that satisfy your committee?

REATH: I don`t think it does, because once you reward a successful prosecutor by throwing him out, of necessity this is going to have a chilling effect on the ardor or zeal of anybody else who comes in. Furthermore, it`s common knowledge that when you bring in a new person to an office there is a great deal of dislocation within that office, a re- staffing and reassignment of duties and responsibilities. I know, and C have been told by a very close confidant of U.S. attorney Marston, that lie has had one instance where one lawyer in a major investigation has already withdrawn his offer to present a witness because he can`t be sure who he`s dealing with, and the uncertainty is a very troubling matter.

MacNEIL: You and your committee, Mr. Reath, want Mr. Marston to stay on the job.

REATH: Very definitely.

MacNEIL: What are your politics, Mr. Reath, and those of the committee?

REATH: Well, I don`t think my politics really are affected by the position I`m taking. I happen to be a Democrat, I happened to support President Carter before Pennsylvania, which gives me some credentials; but I want to stress the fact that our committee is about equally divided among Republicans and Democrats, and we are taking this position that we are as individual lawyers because of the dedication of the Philadelphia lawyer in particular to justice and the fair working of the justice system, free from partisan political intrusion.

MacNEIL: Thank you. Charlayne?

HUNTER-GAULT: A number of Pennsylvania`s Congressional delegation have spoken out against the handling of the Marston affair. Among them is Republican Senator John Heinz, who served on the Senate Judiciary Committee earlier this year. Senator Heinz, your colleague in the Senate has accused the President of a cover-up and obstruction of justice and says he`s not been straight with the American people. Do you agree with that?

Sen. H. JOHN HEINZ: Well, I think the President`s news conference was contradictory, and I think there was clearly the appearance of what could be considered an obstruction of justice. I think it`s wrong for President Carter to look like he`s obstructing justice in any way. It is wrong for the President or anybody else -- the Attorney General or any individual politician -- to look like they are putting a private interest, a special interest, ahead of the public interest. And when there is even the appearance of attempting to impede an investigation into political corruption, I think that has the appearance of putting special interests over the public interest, and that`s not to be tolerated.

HUNTER-GAULT: Right. So what do you think should happen in this instance? Do you think that Mr. Marston should be allowed to stay on the job?

HEINZ: Well, like Mr. Reath up in Philadelphia, I`m not satisfied with the administration decision to send a team of three people up to Philadelphia. I think Marston should be allowed to stay on the job at the very minimum until he completes his investigation -- his rumored investigation -- of corruption among the Congressional delegation. But more than that, I think the President and the Attorney General, who testified before our Judiciary Committee -- and I heard him so testify -- that they intended to have a merit selection basis for U.S. attorneys, should do so and that David Marston should be among those who are put to the test of a merit retention and selection system. Senator Thurmond from South Carolina asked Judge Bell at the end of this part of the confirmation record, "In other words, as I understand your position, if a U.S. attorney has made a competent and meritorious record as a U.S. attorney, and if he desires to be retained then you would give him most careful consideration to him."

Judge Bell: "That`s exactly right." Senator Thurmond:" And you intend to establish a merit system, and this would be in the line with such a merit system." "Right. I think if we`re really serious about doing something about crime in this country," says Judge Bell, "then we must go into some career service in the prosecutorial forces." That`s not what`s happening here, Charlayne.

HUNTER-GAULT: Right. We`ll get to that probably in a few minutes in the show, but in terms of what is happening now with respect to Mr. Marston and the White House, your position is that you do not feel that there is particularly any evidence of cover-up, just that things didn`t go quite...

HEINZ: Well, I`m not in a position to judge whether in fact a cover-up is taking place or not. But there`s the appearance of it, and that, just like the appearance of impropriety in the Bert Lance case, is just as serious a problem as its actuality. We ...

HUNTER-GAULT: And this group that the President has sent to Philadelphia, that is not going to satisfy you.

HEINZ: That doesn`t satisfy me because I`m afraid if Marston isn`t retained the message will go out to prosecutors, "If you do too good a job prosecuting corrupt public officials, you won`t be on the job very long."

HUNTER-GAULT: I see. Robin?

MacNEIL: What evidence actually is there that this is anything more than a very bad piece of political timing?

REATH: Well, as I stated before, Mr. MacNeil, I think the fact of the matter is that there is good evidence to suggest that there may be the basis of an inquiry involving Congressman Eilberg in connection with the Hahnemann Hospital matter. I think the newspapers in Philadelphia this morning carried confirmation of the fact that Congressman Eilberg`s law firm received $500,000 in fees for getting funds for Hahnemann Hospital. Now, Congressman Eilberg stated most emphatically that a separate partnership was formed of his firm and that he shared no interest in it. Well, I can`t comment on that. I can comment as a lawyer that a fee of $500,000 for the kind of services that were rendered is a matter that certainly warrants careful looking into, and I would assume that that`s a matter that is being looked into. I don`t have any facts.

MacNEIL: The other question that`s been raised is whether Mr. Marston informed the Attorney General that he did in fact have Congressman Eilberg under investigation, so that the Attorney General and the President would have been in a position to want to do Mr. Eilberg a favor; and Marston is asked why he didn`t, and he`s given an explanation of why he did not inform. Is it conceivable that President Carter and the Attorney General did not know that Mr. Eilberg was the target of any investigation?

REATH: Well, it`s possible, although if anybody read Mr. Safire`s article in the New York Times today, he draws the conclusion from his recitation of the facts there that the administration must have known by virtue of the fact that it was the President who called Mr. Eilberg -- or rather, Mr. Eilberg called the President, at which point Mr. Eilberg apparently was satisfied that something was going to be done to remove Marston then and there.

MacNEIL: I realize you`re not the best witness on this, but just to use your lawyer`s mind in this. Senator, you heard the charges, if that`s the word, that President Carter used, saying that Mr. Marston had no experience as a prosecutor and was prone to giving press conferences every time he brought down an indictment. What is your knowledge of Mr. Marston, and how does that fit with the record?

HEINZ: Well, Marston has been in office about eighteen months, and that`s not very long. But in the eighteen months he`s had a very active record, not just of actions but indictments and convictions, and it`s al most inevitable that indictments and convictions are going to bring about press coverage. And it seems to me that the President was gilding the lily in a very strange way to say that somebody was receiving too much press coverage because they were doing too good a job of bringing people to trial, and better still, to conviction and jail.

MacNEIL: You and your committee, evidently, Mr. Reath, don`t feel that a propensity for giving press conferences or his lack of prosecutorial experience disqualifies him for this job.

REATH: No, I don`t, and I think another thing that must be recognized is that the United States attorney`s office now is a big job. I think there are forty-two lawyers in that; it`s the equivalent of running a major law firm. And it`s been charged that Mr. Marston does not have any experience as a hard-hitting prosecutor and trial attorney. I think that begs the question. I think the question is, is he running the office, does he have the people in his office who are doing his bidding and doing the government`s work and doing it competently and well? We`ve seen no evidence to the contrary. Now, we`ve said, openly and publicly, that if in fact Mr. Marston is being removed because of incompetence in office, because he`s unfit, because he has disobeyed or not followed the instructions of the attorney general, or that he`s used the office for partisan political purpose, then he should be removed. But we`ve seen no such evidence; all the public evidence is just to the contrary. So I don`t think the issue really is the competence of Mr. Marston at this particular time under a merit program and under the commitment to merit selection.

MacNEIL: That would out, wouldn`t it?

REATH: That`s right. The commitment that was made to merit retention, which Senator Heinz referred to -- and make no mistake; it was not limited to merit selection alone, it was merit retention of holdover United States attorneys.

MacNEIL: Let`s come to that in a second. I just want to ask the Senator one more question: what would you think that you would like the President or the White House to do to clear this up to your satisfaction, Senator?

HEINZ: Well, I think the President has put himself in a position

where he`s going to either have to go through and fire Marston or he`s going to have to back down. I would like to see him change his mind. He did so in the case of Bert Lance when he said he would never urge Mr: Lance to resign; he ended up accepting Bert Lance`s resignation. I would like to see the President accept the reality that David Marston has done a good job and should be allowed to continue his service for his full term, which ends in 1980, and if he wants to put in a system for merit selection and retention -- and I emphasize both -- I`ll be one of the first to support a true merit retention and selection system, just as Dick Schweiker and I have put in for the selection of district court judges in Pennsylvania.

MacNEIL: Okay, thank you. Charlayne?

HUNTER-GAULT: Some observers of the Marston affair believe that the problem stems in part from the way in which U.S. attorneys are appointed. One Congressman who has proposed reform of the appointment system is Representative Robert Drinan, a Democrat of Massachusetts. Representative Drinan, in your view, what does the Marston case illustrate about the problem of appointing U.S. attorneys?

Rep. ROBERT DRINAN: This illustrates clearly the value of a bill I filed on March 24 of this year that would give the appointment to the Attorney General, remove this completely from politics. The U.S. President and the Congress would not be involved; the Attorney General would appoint ninety- four of the most capable lawyers that he could find anywhere in the country. This would clearly de-politicize it. On June 24, when Mr. Griffin Bell was testifying before my subcommittee of the House Judiciary Committee, I asked him to support this bill; and he said, "The decision has been made to leave the U.S. attorney selection in the patronage system." I wrote to him after that, since I was really shocked, and I said, "Well, where was this agreement made?" And he said that we have an agreement with the Senate that if they take the court of appeals judges out of the patronage system we would go along with the other. Well, I was still shocked and I wrote him again and I said, "Where was this agreement made?" And on December 20 last year I received a letter from Michael Egan of the Department of Justice saying, "That agreement was made between Mr. Bell and Senator Eastland in Atlanta in late December of 1976." Well, somewhere along the line the faith was lost because Mr. Carter, candidate Carter, had testified in June 1976 before the Democratic Platform Committee that all federal prosecutors should be appointed strictly on the basis of merit, without any consideration of political aspects or influence, and Mr. Carter at that time suggested independent blue-ribbon committees for the selection of these people. So I think that Mr. Griffin Bell has to be reminded of what he said, of what the President said, and that we have to endorse a bill and pass a bill that will remove this U.S. attorney selection completely from politics.

HUNTER-GAULT: And you feel that the contradictions that you have just described would also be removed if you had a different kind of a system -- the things that shocked you that you just described.

DRINAN: Obviously, because right now the U.S. attorneys are using their position for political gains. Many U.S. attorneys -- too many, really -- become U.S. federal judges, or they run for governors. And furthermore, this tension between the U.S. attorneys appointed by the President, confirmed by the Senate, and the Attorney General himself. The Department of Justice should be unified. All of the other attorneys in the Department of Justice are appointed by the Attorney General, and

likewise the U.S. attorneys should be appointed that way. That is consistent with the whole thrust of the administration of criminal justice that has been going on for at least two or three generations.

HUNTER-GAULT: What about the argument, Congressman Drinan, that the effectiveness of the U.S. attorney`s office is based partly on aggressive types like Mr. Marston who are accountable to the people who put political

pressure on their representatives and so on to make them perform? Wouldn`t you lose something in that?

DRINAN: No, I don`t think that you would. You would get the best and most able attorneys -- you`d get some women, you`d get some blacks; and they have no women, they have no blacks among the ninety-four. Now there may be one woman who is in the process of being confirmed. You would get a broad selection of the most able people selected by the independent blue-ribbon selection committees that the President promised he`d appoint. So I don`t think you`d lose anything; you`d gain an awful lot, and you`d completely depoliticize the administration of justice.

HUNTER-GAULT: Thank you, Congressman Drinan. Robin?

MacNEIL: Mr. Reath, there is an argument made that any administration has its political priorities in the justice area --for instance, President Nixon made a big campaign of prosecuting drug offenders --and that an administration should be able to count on, as it were, political loyalty and the same set of priorities among the U.S. attorneys whom it wants to carry out that policy. Isn`t that an argument for retaining the political system of selecting them?

REATH: Well, it may be an argument, but I think it`s one that`s been discredited by the American people. I think that today one of the things that the American people are terribly concerned about is corruption, and corruption in politics. Certainly that is true in Pennsylvania. We in Pennsylvania are dead serious about getting rid of corruption in politics. I was talking just the other day with Representative Norman Berson, who is chairman of the Judiciary Committee of the House. He`s written a letter to Attorney General Bell and he sent me a copy of it

-- and he`s a Democrat, by the way -- indicating that they are terribly concerned about this matter because of the effect it will have on the effort to root out corruption in state politics.

I have a letter here from Senator Joe Clark, and he authorized me to release this letter, which has been done, and if I can read just one paragraph that he wrote to Attorney General Griffin Bell on January 11, he commented on the fact that he`d just had his fifty-fifth anniversary of his admission to the bar. This is United States Senator Joseph Clark...

MacNEIL: If you could just give us the salient point, because we only have a couple of moments.

REATH: Yes. "May I say, sir, your blatantly political action has aroused the people in the organized bar of Philadelphia to a greater extent than I have seen in my many years of practice of the law, my service as first controller, then mayor of Philadelphia and my tenure for twelve years as U.S. Senator from Pennsylvania. "In other words, I have never personally seen such a storm of protest that has developed. Why? Because I think the people saw that we had a United States attorney that was getting somewhere and rooting out political corruption. And we recognize there`s more around and more to be done, and it has to be done by competent people who are free of political control.

MacNEIL: Congressman Drinan in Boston, does the Marston case not show, and even when a President comes in with professed good intentions, that the patronage system of selection is so useful and so well-entrenched

that it`s almost impossible to get rid of?

DRINAN: I don`t think it`s impossible. We had another case right across the river in New Jersey where Mr. Jonathan Goldstein was removed as the U.S. attorney, and unfortunately the press and the media didn`t

come in on that. I think if we have enough cases like this and if enough good people protest, we will de-politicize the entire system of criminal justice on the federal side.

MacNEIL: Senator, do you have anything to add to that?

HEINZ: Robin, that we would have learned a little bit more from our experience with Watergate. The fact is that in 1971 Richard Kleindienst, when he spoke to his U.S. attorneys said -- and I quote -- "It`s of the utmost importance to keep this administration in power, and you men must do everything you can to ensure that result." And that is what`s worst about the present kind of system we have and to see any...

MacNEIL: Senator, I hate to interrupt you...

HEINZ: ...possibility of it being perpetuated...

MacNEIL: I hate to interrupt you, Senator, but our time is up, I`m afraid. Thank you very much in Washington. Thank you, Congressman Drinan in Boston. Good night, Charlayne. Thank you, Mr. Reath. That`s all for tonight. We`ll be back tomorrow night. I`m Robert MacNeil. Good night.