Antonin Scalia and the Cover-Up of Vincent Foster’s Murder

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In its article about the controversy around his death, The Washington Post describes recently deceased Supreme Court Justice Antonin Scalia as, “The man known for his elegant legal opinions and profound intellect….” Post columnist George Will on the same day, in his usual faux-authoritative manner, declared Scalia to be “…one of the most formidable thinkers among the 112 justices who have served on the court…”

I am not a student of Scalia’s work or of the Supreme Court generally. I do, however, claim a certain amount of expertise on the death of Vince Foster. On December 3, 2003, Justice Scalia was given the opportunity to bring that supposed towering intellect of his to bear on the question of key evidence related to the manner of Foster’s death.

Being argued before the court was the lawsuit of California attorney Allan Favish to make public some photographs of Foster’s body taken by police at the scene. “The case arose” as Favish explains on his web site, “from my Freedom of Information Act request seeking some of the photographs taken by the Government as part of its investigation into the death of President Bill Clinton’s Deputy White House Counsel Vincent Foster, who was found dead in Virginia’s Fort Marcy Park on July 20, 1993. The Government ruled that Foster committed suicide by firing a revolver into his mouth with the bullet exiting the back of his head.”

Unfortunately for the government’s case, there is official evidence that there was a bullet wound in Foster’s neck. One such piece of evidence is the eyewitness testimony of Fairfax County paramedic Richard Arthur. The evidence that Scalia and attorney for the respondents, James Hamilton, address in their exchange below, however, is the official report of Fairfax County Medical Examiner, Dr. Donald Haut. I described that document’s discovery and discussed its importance in 1997 in “America’s Dreyfus Affair: The Case of the Death of Vincent Foster,” Part 2:

At the end of the same week in July in which [Kenneth] Starr made his long-awaited announcement, Hugh Sprunt and the aggrieved witness, [Patrick] Knowlton, paid a visit to the National Archives in Washington to examine the latest hearing records of the Senate Whitewater Committee which were recently made available, and while they were at it, to see if there was anything that might have been missed in the earlier records of the Foster case. And, as luck would have it, there was. Dr. Donald Haut, Chief Medical Examiner of the Northern Virginia District had already had his 15 minutes of fame when he appeared on the 60 Minutes episode in which he contradicted [Christopher] Ruddy with respect to the amount of blood he saw on and around Foster's body at Fort Marcy Park. What reporter Mike Wallace did not say is that he also contradicted what he had previously said on the record and what he had told Ruddy in an interview that Ruddy had recorded. The controversy over what Haut, the official medical recorder of the scene and the only physician at Fort Marcy Park that night, did or did not see made it all the more noticeable that in the massive two volumes of Senate documents his official written incident report was missing. Well, Knowlton found it, and Sprunt, hesitant at first, quickly recognized its significance.

The first thing one would notice in reading the pre-printed form is that Haut hardly earned his money that night. In the 48 boxes under "Description of Body," which includes spaces for noting incidence of blood, among a lot of other things, everything is blank. In the 10 blocks under "Fatal Wounds (Gunshot, Stab, etc.)," same thing. Finally, under "Manner of Death: (check one only) we hit some pay dirt. The choices are "Accident," "Natural," "Suicide," "Homicide," "Undetermined," and "Pending." No doubt here. The block by "Suicide" has an "x" mark. And there beside it in the "Cause of Death" block is a short narrative in all capitals: PERFORATING GUNSHOT WOUND MOUTH- [space] HEAD. (The odd blank space is not exactly as I have shown it. It actually starts a second line.) Turning to the second page of the two-page form we find more blank spaces: "Found Dead By." nothing; "Last Seen Alive By," nothing; "Witnesses to Injury or Illness and Death," nothing. Then under the concluding "Narrative Summary of Circumstances Surrounding Death" we have this:

"JULY 20, 1993 After anonymous call was received at 18:04 hours US Park Police officers found 48 yrs Caucasian male with self-inflicted gunshot wound mouth to neck on a foot path in Marcey (sic) Park. His car was parked in the parking lot but no note was found. MEDICAL HISTORY Unknown."

Mouth to neck!?!? But didn't he say mouth-head on the first page? Yes, but there was that curious space between the words. Oh, look! A four-letter word has been incompletely mechanically "lifted off" there, it would appear. Well, what do you know? The original word sure does look a lot like "NECK."

So there you have it. Kenneth Starr just got through telling us that the death was a suicide just like Robert Fiske said it was, and the autopsy doctor upon whom Fiske relied produced a diagram showing that the bullet came out through the crown of the head, but the doctor at the park saw a neck instead of a head wound. There's certainly no confusing the neck and the crown of the head. Somebody, to make the written record of the two doctors agree, went back and "corrected" "NECK" and put "HEAD" down beside it. But this was a government worker. He did a slovenly job on the first page and overlooked the words entirely on the second page.

Your Supreme Court in Action

Now let’s watch the steel-trap mind of Supreme Court Justice Antonin Scalia at work in his exchange with Foster family attorney James Hamilton at the Supreme Court:

SCALIA: Well, let - let's take a particular item of evidence, I mean, like the - the autopsy report that Mr. Favish claims was - was - was altered, that the word neck was white - whitened out and head was written in instead to - to cover the fact that the bullet exited the neck rather than the head. Now, you know, what - what he and other conspiracy theorists would say is, the fact that five investigations came up with the same conclusion just shows the extent of this - this conspiracy, you know.  They're not going to be satisfied by the mere fact that - that you had five separate groups. They're going to say, oh, all the worse, all the worse, this - this conspiracy is so widespread. Well, how do you respond to that?

MR. HAMILTON: Well, I think the first response I would make is that it is a difficult argument to make that Judge Starr conspired with members of the Clinton administration to protect that administration.

(Laughter.)

MR. HAMILTON: Judge Starr - Judge Starr's report was quite thorough, it was over 110 pages. He answered this question about the - the - the medical report. The medical report was somewhat inconsistent, but certainly, when you look at the autopsy reports, when you look at the - the - the photographs themselves, it is clear that the - there-there was a-an exit wound in the back of the head. There was no -

SCALIA: He might have been protecting Newt Gingrich. Did you ever think of that?

MR. HAMILTON: I - I beg your pardon?

SCALIA: Mr. Starr might have been protecting Newt Gingrich. We really - we really don't know.

(Laughter.)

Yes, the court recorder duly reported that the press-benighted audience fell for Scalia’s crude laugh lines and guffawed on cue. How many of those present, one must wonder, even knew that Scalia apparently didn’t even know the difference between the medical examiner’s report of a neck wound and Dr. James Beyer’s autopsy report, which depicted a gaping wound (that nobody else saw) in the crown of Foster’s head?

Evidence, Mr. Favish? We don’t need your stinking evidence. In the cold light of day, you really don’t know whether to laugh or to cry as Scalia makes a mockery of justice and besmirches the dignity of his robe and his high office, trivializing a murder and its cover-up, and doing so in a very ignorant fashion. The jibe about Gingrich isn’t even funny. It’s no wonder Hamilton didn’t get it.

Scalia might say, “let’s take a particular item of evidence,” but, in fact, he doesn’t address it at all. What he does is to employ Nos. 5, 7, and 11 of my “Seventeen Techniques for Truth Suppression.” First, he engages in schoolyard variety name-calling. Mr. Favish is nothing but a conspiracy theorist for challenging “five investigations” that have all concluded that Foster killed himself.

The mention of those investigations is his #7, his invocation of authority. This is a common dodge when the Foster case is discussed, and it requires us to overlook the fact that the reports of the Park Police, Robert Fiske, and Starr were hardly independent of one another. The same team of FBI agents was involved in—and really directing—all three. Congressman William Clinger’s 6-page report (one of the five “investigations”) was a distillation from the Park Police and Fiske. The fifth “investigation” was by the Senate Banking Committee, which held hearings under the specific ground rule that it would not question the suicide conclusion.

The use of #11, of deductive reasoning, is at least as crude as the other two, and Hamilton is the first to do it. The underlying assumption is that Starr is a political enemy of the Clintons and could not possibly cover up for them. This overlooks the fact, though, that Starr was George H.W. Bush’s solicitor general, and we have seen in recent years how close the elder Bush and Bill Clinton are (not to mention the Mena Airport drug smuggling and the CIA connection). Furthermore, the younger Bush made two of Starr’s key aides in the Foster case, Brett Kavanaugh and John Bates, federal judges. By joking that perhaps Starr might have been covering up for House Majority Leader Gingrich who did not challenge the findings of the Park Police or Fiske, Scalia plays on the common misconception that we have a vigorous two-party system rather than simply a ruling establishment and a Deep State.

For his part, Hamilton, like Hillary Clinton, a Yale Law School product* who got his start with the government as a part of the Watergate investigation,** unlike Scalia, recognizes that there is a difference between the medical report and the autopsy report, and he seems to know that they are not consistent with one another. He papers the problem over, though, by stating that Starr “answered this question about the - the - the medical report.” He did not. As we have shown, the medical report was withheld from the public so Starr never addressed what was on the reverse side. What he says in the basic report is simply, “Dr. Haut signed the death certificate. It states that the cause of death was ‘perforating gunshot wound mouth – head’ and that the manner of death was ‘suicide’ by ‘self-inflicted gunshot wound mouth to head.’"

As it happens, Starr’s full report does mention the matter of the neck wound in the medical report. It’s in Exhibit 5 of the part that the three judge panel that appointed him ordered Starr to make a part of his official document, the letter of Knowlton’s attorney, John Clarke:

The FBI concealed the gunshot wound in Mr. Foster’s neck by: (i) concealing the contents of the Medical Examiner’s Report which states that there was a gunshot wound in Mr. Foster’s neck; (ii) falsely reporting that the 35 mm photographs were unclear; (iii) concealing that Polaroid photographs vanished; and (iv) concealing that autopsy x-rays vanished. 

Hamilton doesn’t want you to know about that part of Starr’s report, which he says is “over 110 pages.” Actually, it’s over 130 pages, including Clarke’s letter that flatly contradicts the suicide conclusion. Hamilton also assures us that the photographs show the exit wound that the autopsy depicted, but he just wants us to take his word for it. From every indication, Hamilton, doing the Deep State’s bidding as he has throughout his legal career, doesn’t want the public to see the crime scene photographs of Foster’s body precisely because—if not photo-shopped—they would show a wound in the neck and they would not show that gaping wound in the back of Foster’s head that Dr. Beyer depicted in his autopsy sketch. He doesn’t want us to see those photographs any more than he or Judge Scalia, or apparently even the plaintiff, Allan Favish, want you to know of the existence of Volume 2 of Starr’s report, the lion’s share of which is Clarke’s letter, because none of them make any mention of or reference to it in the oral exchange.

Your “Free Press” in Action

Someone else who doesn’t want you to know about the existence of that Volume 2 is America’s press. Their blackout of this very important news was so complete that I called it “The Great Suppression of ‘97” in my “America’s Dreyfus Affair, Part 3,” and introduced the topic this way:

The unanimous press approval of the thin, flawed Fiske Report; the ignoring of the finding of forgery by the three handwriting experts; and the press neglect of the Knowlton harassment and resulting lawsuit were but dress rehearsals for the most revealing and brazen act by America's press yet. It ought to be remembered as the "Great Suppression of `97." That is the complete silence of the news media about the fact that the three-judge panel that appointed Kenneth Starr included with the report of the special counsel (that tellingly lacked anyone's name upon it) twenty pages of comments by Knowlton's lawyer, John Clarke, that completely undermined the conclusion of suicide in Fort Marcy Park.

This was stupendous news, not just for what was in the Clarke letter, but that the three federal judges, David B. Sentelle, John C. Butzner, and Peter T. Fay had seen fit to include all twenty pages with the report. They had no real obligation to do so. The submission of the letter in the first place was not technically related to the fact that Knowlton had filed suit against many of the people involved in the investigation. His opening came from the fact that the law that created the independent counsel permitted, in the interests of fairness, comments by any persons "named" in the report of the independent counsel. The judges might have, on firm legal grounds, ruled Knowlton out because he is not actually named in the report. He is identified simply as "C2."

Allan Favish’s day in court was not blacked out, but it was lightly covered. Such coverage as it did receive was typified by the article by Dahlia Lithwick in Slate entitled “The Wing Nut’s Revenge,” subtitled “A conspiracy theorist has his day in court;” with the Web link title of “The Supreme Court hears from the lunatic fringe.” Here is a sample of her purple prose, which is oh so reminiscent of Pravda at its worst during Joseph Stalin’s reign in the Soviet Union:

Scalia presses Hamilton on one of the documents cited as proof of the cover-up, the so-called "Haut Report" in which Favish claims the word "neck" was whited out by conspirators and replaced with the word "head" to cover-up the fact that Foster was shot in the neck, and didn't kill himself. Scalia, never afraid to call a wing nut a wing nut, tells Hamilton: "What he and other conspiracy theorists would say is that the fact that there were five investigations only shows the extent of the conspiracy."

Favish sits impassively as Scalia calls him a crackpot. And Hamilton keeps a straight face as he responds to Scalia's concern: "Yes, Judge Starr conspired with the members of the Clinton administration in order to protect that administration." Hoots from the gallery. Hamilton continues uninterrupted for a moment or two until Scalia proffers a better conspiracy theory: "Mr. Starr may have been protecting Newt Gingrich …"

There is a saying in the legal profession, “When the facts are on your side, pound the facts; when the law is on your side, pound the law; when neither is on your side, pound the table.” What you see here from the Yale graduate Lithwick is table pounding of the highest order. She can get by with it only because of the total suppression of the news of Volume 2 of Starr’s report on Foster’s death. It’s really quite remarkable that a journalist, whom one should expect to champion the right of the people to know, should sound almost giddy in her celebration of the shooting down of the public’s right to know in this instance.

One can find more reporting on the Foster-case evidence of the same scurrilous stripe in Slate’s online rival, Salon, by the journalist Gene Lyons, which I discuss in detail here.

What Goes Around Comes Around?

Conservative news organs such as the New York Post have been raising questions about the quick ruling of “natural death” in Judge Scalia’s case and entertaining the notion that he might have been the victim of foul play:

Bill Ritchie, a retired deputy chief and former head of criminal investigations for the DC police, said he was dumbstruck when he learned that no autopsy would be performed.

“I took a look at the report and I almost fell out of my chair,” Ritchie told The Post from his home in Maryland.

“I used to be an instructor in the homicide school. Every death investigation you are handling, you consider it a homicide until the investigation proves otherwise,” Ritchie said.

“How do you know that person wasn’t smothered? How do you know it’s not a homicide until you conduct an investigation? You have to do your job. Once you go through that process, you can conclude that this is a naturally occurring death.”

Salon is even calling it “this generation’s Vince Foster on Twitter.” If, in fact, he was murdered and the murder is being covered up, one can’t help noticing the irony, in view of the eminent jurist’s performance in the Foster case. Noticing, in fact, Scalia’s consistent opposition to openness in government, one can’t help but think that there might be poetic justice at work. Here we see on Wikipedia a brief description of his work for the Gerald Ford administration as Assistant Attorney General for the Legal Counsel:

In the aftermath of Watergate, the Ford administration was engaged in a number of conflicts with Congress. Scalia repeatedly testified before congressional committees, defending Ford administration assertions of executive privilege regarding its refusal to turn over documents. Within the administration, Scalia advocated a presidential veto for a bill to amend the Freedom of Information Act, greatly increasing its scope. Scalia's view prevailed and Ford vetoed the bill, but Congress overrode it.

Thinking again of the Soviet Union comparison, one is reminded of NKVD head Genrikh Yagoda, who was eventually put before the same firing squad to which he sentenced so many others.

* And like Foster and the present author, Hamilton is a Davidson College graduate.

**And later Hamilton represented Lee Harvey Oswald’s widow, Marina, before the House Assassinations Committee.

David Martin

February 17, 2016

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