That Mishandled Marston Affair

Broken promises and misstatements put Carter on the spot

"If I ever tell a lie, if I ever mislead you, if I ever betray a trust or a confidence, I want you to come and take me out of the White House."

--Candidate Carter in 1976

As Republicans rubbed their hands in glee, the Carter Administration last week found itself trying to explain away a skein of presidential lies. In a letter to Justice Department investigators looking into the firing two weeks ago of Philadelphia's Republican U.S. Attorney, David Marston, Carter last week corrected a misstatement he had made during a nationally televised press conference on Jan. 12. Republican Congressmen saw an opportunity to duplicate last summer's damaging controversy over Bert Lance's financial peccadilloes, and to lay siege again to what was once the President's pride: his credibility.

It was Carter's own fault. During his campaign he rashly declared, "All federal judges and prosecutors should be appointed strictly on the basis of merit without any consideration of political aspects or influence." Such appointments are traditionally made on a frankly political basis, and once Carter was ensconced in the Oval Office, that tradition was fully honored. Of the first 65 U.S. Attorneys named by the new Administration, 64 were Democrats. As House Speaker Tip O'Neill put it, "That's the way the System works." And, he might have added, the way Congressmen and Governors want it to work, no matter who is President.

Carter got himself in trouble by making two serious mistakes. Several times he told less than the truth about his role in expediting the removal of Marston. Then, after admitting he was asked to fire Marston by one of the prosecutor's targets of investigation, Democratic Congressman Joshua Eilberg of Pennsylvania, Carter did it anyway.

William Safire, New York Times columnist and former Nixon speechwriter, who believes in equal opportunity for Democrats to have their own Watergate, raised familiar questions: What did he know? When did he know it? In this case, they were fair questions. Affidavits released last week showed that a veteran Justice Department official, Russell Baker Jr., had been notified by Marston's office as early as last Aug. 17 about an investigation involving Eilberg, a powerful House Judiciary subcommittee chairman. Eilberg's Philadelphia law firm had received a handsome $500,000 in legal fees while helping to obtain federal financing for a new hospital in the city. Also involved in the project and the investigation into it was another prominent Pennsylvania Democrat, Congressman Daniel

Flood. It was revealed last week that a former Flood aide, after being granted immunity from further prosecution, accused the Congressman of trading his influence for $100,000 in cash and bank stock.

On Nov. 4, the same day Baker signed an immunity order requested by Marston to aid him in his investigation, Eilberg telephoned Carter to urge that Marston be fired. As the President recounted it, Eilberg offered no reason and Carter did not ask; the System was at work. Carter thought so little of the matter that days passed before he got around to calling Attorney General Griffin Bell about it. A White House telephone operator caught up with Bell in the Washington Brooks Brothers outlet and put him through to the President. Carter's message: there was local Democratic pressure to get rid of that Republican Marston in Philly. See to it.

Carter's credibility troubles began when he professed to remember none of this at the start of his Jan. 12 news conference. In reply to the first question on the subject, he said that replacing Marston was Bell's concern, "and I've not interfered in it at all." Lie--or memory lapse--No. 1.

Then Carter said: "I've not discussed the case with the Attorney General." Lie --or memory lapse--No. 2.

A reporter indicated that the press knew about Eilberg's call. Carter blandly acknowledged that, yes, the Congressman had been in touch with him, but only after the President had jogged Bell into action on Marston--which, of course, contradicted Carter's claims that he had not interfered at all or talked with Bell about the matter. Lie--or memory lapse--No. 3. (This Carter emendation was contradicted when Bell, in giving his version of his Brooks Brothers conversation with Carter, said that the President had specifically mentioned Eilberg's inquiry into Marston's status.)

Carter also claimed ignorance of Eilberg's troubles: "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." That, by Carter's own admission last week, also turned out not to be so. Lie No. 4--or perhaps a clumsy and misleading effort to separate what he knew in November at the time of the calls from what he later found out.

Carter's knowledge of the Eilberg investigation emerged when the Justice Department's Office of Professional Responsibility requested affidavits on the matter from eleven Justice Department employees, plus a letter from the President. Carter wrote that he had heard of the Eilberg inquiry "a few minutes before the press conference" from his congressional liaison, Frank Moore. (That was tardy staff work: the Marston probe had been in the Philadelphia Inquirer two days before the press conference.) The affidavits produced another contradiction: Baker said he had told his boss, Criminal Division Head Benjamin Civiletti, about the Eilberg matter; Civiletti could not remember being told. In any case, nobody told Bell or Carter at the time, perhaps because Marston had not made it seem very important and almost certainly because Baker (and perhaps Civiletti) did not think it very important.

The Justice Department probers promptly announced that Bell and Carter were cleared of any charge of obstruction of justice in the affair. But the Republican partisans on Capitol Hill had no intention of letting the Administration off so easily. Thundered Utah's Orrin Hatch: "That two-day whitewash [the Justice Department's inquiry] isn't going to satisfy anybody!" O'Neill fumed that Marston was "a Republican political animal" who took office "with viciousness in his heart and for only one reason--to get Democrats." In response, Delaware G.O.P. Congressman Thomas Evans pointed out that Marston had nailed two Republicans along with several Democrats, and had urged an independent congressional investigation "of this increasingly sordid affair." Republican Senate Judiciary Committee members are planning to keep the controversy boiling at confirmation hearings later this winter for Civiletti as Deputy Attorney General and Baker as U.S. Attorney for Baltimore.

Thanks to the Administration's ineptness, a martyr's image has been created for Marston, himself an outright political appointee who hunted headlines as vigorously as he hunted official corruption in both parties. Despite Marston's protests that the inquiry into Philadelphia-area wrongdoing may be sabotaged by his ouster, the whole brouhaha almost certainly guarantees forceful pursuit of the probe to its end. That assignment will be carried out by Assistant U.S. Attorney Alan Lieberman, who did most of Marston's actual courtroom work, and hard-driving FBI Agent Neil Welch, who is rated the most effective bureau field commander in the country.

Whatever the outcome in Pennsylvania, Jimmy Carter has some fresh tarnish on his escutcheon--with nobody but himself to blame for it.

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