It’s never easy to indict a senator, but this time federal prosecutors thought they had the goods.
In the summer of 2004 prosecutors in the U.S. Attorney’s Office for the District of Columbia had assembled evidence they believed would lead to a criminal indictment against Sen. Richard Shelby (R-Ala.). The charge: that Shelby had leaked classified information to reporters about messages intercepted by the National Security Agency on the eve of the Sept. 11 terrorist attacks.
The prosecutors had been called in to investigate a June 2002 report by CNN, which, citing two congressional sources, stated that on Sept. 10, 2001, the NSA had intercepted two Arabic messages that said, “the match is about to begin” and “tomorrow is zero hour.” The messages weren’t translated, however, until Sept. 12. The anonymously sourced report came almost immediately after intelligence officials had presented the information to the Senate Select Committee on Intelligence, of which Shelby was a member. Armed with information gleaned from FBI interviews with reporters and congressional staff, prosecutors had gone so far as to type up a draft of the indictment.
What was needed to bring the charges, according to two sources with direct knowledge of the investigation, was grand jury testimony by the reporters who spoke with Shelby after the hearing. In order to subpoena the journalists, prosecutors needed approval from David Margolis, an assistant deputy attorney general and the Justice Department’s most powerful career lawyer.
But at a meeting in a fourth-floor conference room at Justice Department headquarters along Constitution Avenue Northwest, Margolis turned down the request. The decision effectively killed the investigation. “Without the subpoenas you just couldn’t do a grand jury,” says one of the sources, who spoke on condition of anonymity, citing the sensitivity of internal DOJ deliberations.
In theory the prosecutors could have appealed Margolis’ decision to then-Deputy Attorney General Larry Thompson. But that would have meant taking on Margolis, one of the Justice Department’s most respected officials, a lawyer with a sterling reputation earned over 42 years of service at the department. “Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”
In many ways, comparing the 66-year-old Margolis to the quirky and ancient Jedi Master is apt. Margolis is widely described as the “institutional knowledge” of the Justice Department. A notorious straight shooter known more for his love of country music and outlaw garb than his politics, he’s managed to navigate the shifting sands of Washington to retain a powerful voice under Attorney Generals Janet Reno, John Ashcroft, and now Alberto Gonzales. Though Margolis is technically outranked by more than a dozen political appointees at DOJ headquarters and all 94 U.S. attorneys scattered throughout the country, his influence on the department extends far beyond his title, say both current and former Justice officials.
Margolis’ bulletproof reputation and lack of partisan stripes also mean that the presidentially appointed attorneys general and deputy attorneys general at the top often turn to Margolis when Justice Department investigations venture into the swirl of national politics. From the investigation after former White House lawyer Vincent Foster’s suicide to the ethics of Kenneth Starr’s Lewinsky probe to the leak of Valerie Plame’s identity, Margolis has played a major role in the DOJ’s attempts to show that its law enforcement actions aren’t motivated by political concerns.
That was certainly the case in the Shelby investigation, where a Republican-led Justice Department was probing one of the closest congressional allies of a Republican president. “You can see why in a situation like that it’s better to have a Dave Margolis supervising those [investigations] than a Larry Thompson,” says Thompson, Bush’s deputy attorney general at the time of the Shelby probe and now general counsel at PepsiCo.
Margolis’ office is littered with photographs of him with Democratic and Republican politicians alike. FBI Director Robert Mueller once joked that as elections approach, Margolis shuffles the pictures based on who he thinks will win. Like President George W. Bush, he bestows nicknames on favored colleagues. Janet Reno was the “Old Lady.” Former Deputy Attorney General Jamie Gorelick was the “Bionic Babe.” The studious-looking Chuck Rosenberg, now the U.S. attorney in the Eastern District of Virginia, was “Tex,” for a previous stint in Texas.
Margolis, who last week was given a lifetime achievement award by Gonzales, declined to comment on the Shelby probe. But his influence goes far beyond merely making recommendations on media subpoenas and overseeing the investigations that stir up Washington’s chattering classes. “I have an eclectic portfolio,” he says.
And a lengthy one. Margolis serves as the Justice Department’s chief disciplinarian of its federal prosecutors, helps choose U.S. attorneys and U.S. marshals, vets top FBI officials, advises prosecutors on when to recuse themselves from investigations, authorizes travel requests for the director of the FBI and the administrator of the Drug Enforcement Administration, and approves requests by political appointees to attend campaign events. In addition, on the rare occasion when a nominee for a presidential appointment is part of a criminal investigation, it falls to Margolis to decide how much of the investigation’s information should be shared with the White House and the Senate.
Margolis cut his teeth as an organized-crime prosecutor, and he often uses mob analogies in talking about his career at the Justice Department. When asked by an incoming attorney general what his job duties entailed, Margolis responded: “I’m the department’s cleaner. I clean up messes.”
The analogy calls to mind the character of Winston Wolfe, played by Harvey Keitel in the 1994 film “Pulp Fiction.” In the movie, Wolfe is called in by mob honchos to dispose of the evidence after two foot soldiers accidentally kill a murder witness in the back of their car. But Stephen Trott, who served as Margolis’ boss in the Criminal Division during the Reagan administration, sees Margolis’ role slightly differently.
“Margolis is the guy who comes in and makes sure the brains don’t get splattered all over the car,” says Trott, who’s now a senior judge on the U.S. Court of Appeals for the 9th Circuit in Boise, Idaho. “He keeps people out of those situations.”
One example of his efforts to head off trouble came on July 21, 1993. On that day, Margolis, who had recently been promoted from the Criminal Division to become assistant deputy attorney general, took a call from his boss, then-Deputy Attorney General Philip Heymann. “I want you to go over to the White House with [federal prosecutor] Roger Adams. Vince Foster is dead. There’s an investigation of it,” Margolis recalled Heymann as saying, in testimony before the Senate Whitewater Committee in 1995.
The death of Foster, a deputy counsel in the Clinton White House, had come at a sensitive time in the Whitewater investigation. Republicans in Congress had long suspected the White House was withholding embarrassing information about the Clintons’ involvement with a failed Arkansas savings and loan. Immediately after Foster’s death the White House had promised the Justice Department that law enforcement officials would be able to review Foster’s files in order to look for a suicide note or evidence of extortion.
But when Margolis arrived, then-White House counsel Bernard Nussbaum changed his mind. Instead of allowing Margolis and others from the DOJ to search Foster’s files and briefcase, Nussbaum would review them for any relevant material to be turned over while Margolis and other investigators sat across from him in Foster’s office. Margolis objected to the change in plans, but after consulting with Heymann, he unhappily acceded. “I explained to Mr. Nussbaum that to do it his way would be a big mistake,” Margolis later testified. “I said, �It was your mistake . . . but it is a big mistake.’ “
Margolis’ prediction would turn out to be prescient. Nussbaum reviewed the files but didn’t find evidence of a suicide note. Almost a week later, however, White House officials would discover a torn note in Foster’s briefcase that attested to his unhappiness with life under the Washington microscope. The belated discovery of the note, and Nussbaum’s efforts to shield Foster’s briefcase and files from Margolis and other investigators, would stoke Republican suspicions that the White House had something to hide. Margolis’ own testimony about the episode before the Senate Whitewater Committee in 1995 would only contribute to that perception.
The Foster episode wasn’t the only time Margolis tried to head off trouble for his political bosses. In September 1994 the White House contacted the FBI in order to run a name-check on Arthur Coia, the head of the Laborer’s International Union, who was being considered for an appointment to a presidential advisory council. But there was a problem. As was later spelled out in a 1997 report by the House Judiciary Committee, the Criminal Division had concerns that Coia was linked to the Patriarca family, a New England organized-crime group. Margolis, according to the report, would repeatedly contact the White House over the next few months to ward off Coia’s nomination. Coia would remain close to the White House, but, according to news reports, would subsequently be forced to resign from his post at the union as part of a plea deal with the Justice Department.
Today, Margolis says he has little recollection of the Coia incident. “One of the reasons I’m here is to handle controversial stuff,” he says. “And I do and I have, and I thrive on it.”
George Terwilliger III, who served as deputy attorney general under President George H.W. Bush, says the reason that Margolis has been so valuable is that he “sees the trainwreck coming.” Adds Terwilliger, “He sees the people who could potentially be problems.”
HELLBENT AND WHISKEY-BOUND
Margolis was reared in Hartford, Conn. The son of a school administrator and a teacher, he graduated from Harvard Law School in 1964 and was hired as an assistant U.S. attorney in Hartford the following year. He distinguished himself in 1969, when he personally persuaded an armed fugitive wanted for two bank robberies to surrender to him during a meeting at a deserted baseball field. At the time, Margolis was given to long sideburns and Edwardian suits, and, according to a report in the Hartford Courant, left a marked impression on a policeman who observed the negotiations. “When I first saw the kid sometime back, I thought he looked like a draft-card burner,” the policeman was quoted as saying. “But now I know the kid’s got moxie.”
From Hartford, Margolis joined the Justice Department’s Organized Crime Strike Force, working labor-racketeering and other Mafia cases during stints in Hartford, Cleveland, and Brooklyn.
In 1976 he would come to Washington, where future Attorney General Richard Thornburgh, then head of the DOJ’s Criminal Division, appointed Margolis as a deputy chief of the organized crime section. In 1979 he took over as section chief, a job he’d hold for the next 11 years. By that time, Margolis had earned a reputation not only as a hard-charging prosecutor but something of a long-haired iconoclast amid the DOJ’s button-down culture. He kept an oversize portrait of Elvis Presley on the wall of his office and a jailhouse photo of Hank Williams Sr. naked to the waist. The dapper suits had disappeared and were replaced by T-shirts with slogans like “Hellbent and whiskey-bound.”
“He would come to work in blue jeans with a giant leather belt and silver Elvis Presley belt buckle,” says Paul Coffey, Margolis’ former deputy. “As chief of the organized crime section, he had this huge, huge office on the second floor. As you walked in you saw the pictures and the painting, and Dave’s desk was on the right. What you immediately noticed were four or five half-full coffee cups. In each cup would be the carcass of a cigarette; on the floor would be thousands of remains of popcorn, because [he] ate popcorn all day.
“We’d let a defense attorney come in from time to time and [they] would all come in looking like a million bucks and smelling like a million bucks, and you could tell they were shocked,” Coffey continues. “You could hear their feet crunching the popcorn kernels. They’d walk across, they’d see the pictures, the popcorn-strewn carpet, the cups of coffee all over the place, and a guy dressed in T-shirt and jeans.”
During the Reagan years, Margolis also got a taste of the glare of the media. As head of the organized crime section, Margolis supervised the long-running investigation of Teamsters Union President Jackie Presser. Presser had been a prominent supporter of Ronald Reagan’s presidential campaigns, but also led a double life as both FBI informant and mob-connected union boss. In 1985, when prosecutors were set to indict Presser on labor-law violations, Margolis turned down the prosecution a move that quickly drew attacks from those who saw the decision as politically motivated. “I’ve been accused of being a handmaiden,” Margolis says.
Under criticism, Margolis was later forced to reveal to the media that a group of FBI agents had said they had authorized Presser’s conduct. Later, the Justice Department would conclude that the FBI agents had been lying. Presser was eventually indicted, and he died while awaiting trial in 1989.
Despite the controversy, Margolis emerged with his reputation intact. “David was like a beacon pointing true north on the case,” says Trott, his former boss in the Criminal Division from 1983 to 1986.
In 1990, Margolis left the organized crime section to become a deputy assistant attorney general in the Criminal Division. After Bill Clinton was elected, in 1993, he was promoted again, this time to the deputy attorney general’s office. He no longer oversaw organized-crime cases but took on a range of new duties, including that of supervising the DOJ’s Office of Professional Responsibility. In effect, Margolis became the Justice Department’s internal affairs chief, the guy you didn’t want showing up at your office unannounced. He was a key player in the decision to prosecute Michael Abbell, a former federal prosecutor turned lawyer for the Cali cartel. More recently, he was involved in the investigation of Richard Convertino, the Detroit federal prosecutor now facing charges for his role in a botched terrorism prosecution.
During the Clinton administration he was also asked to examine certain questions about the propriety of some of Kenneth Starr’s actions in the independent counsel investigation, according to Eric Holder Jr., one of Clinton’s former deputy attorneys general. But little has been publicly revealed about Margolis’ role in the matter, and Margolis calls it an “internal” one he won’t discuss.
Clinton DOJ officials expected Margolis to be demoted after Bush’s election victory in 2000. But Thompson, who served as Bush’s first deputy attorney general and had known Margolis since Thompson’s days as a U.S. attorney in Atlanta in the 1980s, kept him on. “There wasn’t any question as to whether I was going to keep him,” Thompson says. “You don’t make decisions; you let Dave make decisions.”
That may be an exaggeration, but Margolis’ power doesn’t appear to have waned even late in his seventh decade of life. Margolis was influential in the selection of Mueller as FBI director, in 2001, says Michael Bromwich, a friend of Margolis’ who served as the DOJ’s inspector general in the 1990s. He’s also influenced a number of U.S. attorney appointments in the current administration, including that of Rosenberg in Virginia. “His opinion is weighed heavily,” says Kenneth Wainstein, the U.S. attorney for the District of Columbia who previously served as the director of the DOJ’s Executive Office of U.S. Attorneys.
As the Shelby case demonstrates, his role hasn’t been limited to personnel. Thompson was succeeded by James Comey, and when Comey resigned, in the summer of 2005, he handed supervisory authority of the department’s most politically sensitive case the leak investigation involving CIA agent Valerie Plame to Margolis. After Paul McNulty succeeded Comey, he made a point of keeping Margolis in that role.
Those who’ve worked with Margolis attribute his sustained influence at the Justice Department to predictable traits namely, good judgment and intelligence. But his remarkable devotion to the culture of the department itself is no doubt a factor in his success. In 1995, Margolis suffered a massive heart attack in his office. Then-Deputy Attorney General Gorelick recalls hearing the crack of Margolis’ head hitting a coffee table from her desk several doors away. Margolis was rushed to the hospital for quadruple-bypass surgery. Five weeks later, he was back at work. Friends say the heart attack has mellowed Margolis. He’s quit smoking, gained weight, and given up wearing T-shirts in the office. He has no plans to retire, and still puts in nearly a full day of work on Saturdays.
Over the years he could have no doubt traded the relative anonymity and government salary of his Justice Department post for the gilt halls of Washington’s white-shoe law firms or a slot on the judiciary. But he hasn’t. “There’s so many games played in Washington with people angling for things,” says Trott. “People are trying to become judges, senators, presidents. That doesn’t happen with David. In Washington you need somebody like that.”
“I stay because this is what I do,” Margolis says.
“In �The Godfather,’ Hyman Roth says to Michael Corleone, �This is the business I’ve chosen,’ ” he says. “ This is the business I’ve chosen.”
Jason McLure can be contacted at email@example.com.