CHAPTER NINE: THE PERIPATETIC GUN
THE "CONFIDENTIAL WITNESS" had been to Fort Marcy Park at least fifty times over the years, meandering through its secluded groves on the Virginia heights above the Potomac. [1] It is known to the initiated as a place for surreptitious liaisons. Gays go there to score, and to celebrate unusual summer rites on the ramparts. In the mornings, trainee intelligence agents use the old Civil War artillery fort to practice their drop-off drills. The headquarters of the CIA is just up the road.
But for the Confidential Witness it was just a good park. He liked to stop by on Sunday afternoons on his way back from visits to the Smithsonian Institution. "It's a great place to sit down for a picnic with a bottle of wine and a nice young lady," he said, although he hardly has the look of a swordsman. A short feisty man in his late forties, with a bloodshot face and black spectacles, he earns his living as a construction foreman. His passion is traveling in Africa, Latin America, and Europe, when he can afford it, and viewing exhibits of exotic foreign art when he can't.
This time it was a call of nature. Caught in heavy traffic on the George Washington Parkway with a pint of coffee inside him, he pulled into Fort Marcy Park at about 5:45 PM. It was still suffocatingly hot. That day, July 20, 1993, the temperature had reached 96 degrees. He took off his sweat-soaked shirt and left it to dry in the van, then walked up into the further reaches of the park. About 700 feet into the wooded groves, at the top of an overgrown berm, he caught sight of some trash. It annoyed him, people leaving rubbish on the ground. But as he moved closer, he spotted a body. It was lying in the dense foliage, concealed from view by a berm, more or less in the line of fire of an antique howitzer.
Not a man of squeamish sensibilities, the Confidential Witness went over and peered into the half-closed eyes of the corpse. "He looked as if he'd been dead for a long time, I mean hours," he said. There was no blood on the pristine white shirt; nothing to explain why this elegant figure should be lying dead in the shrub wearing a "$400 or $500 suit" and sparkling "dress shoes," with a bottle of wine cooler at his elbow. The bed of dried leaves below the body had been "very heavily trampled," so something was obviously wrong. [2]
His hands were stretched out, with the palms up. No weapon was visible anywhere. No gun.
"I noticed that there was a tiny bit of dried blood around the mouth and nose, so I thought maybe he'd been hit on the back of the head."
It was eerily silent, so silent that he could hear people talking at the Saudi Ambassador's residence across Chain Bridge Road. The Confidential Witness returned to his white van and drove up the parkway to the Turkey Run outpost of the U.S. Park Service in search of a telephone. Instead he ran into two Park Service employees and decided to let them deal with it. He told them about the body, then drove off without leaving his name. He became the mysterious man in the white van. "Hey, I did my duty. I didn't need the headaches of going to court and all that crap."
The next day his brother told him that the dead man was Vincent W. Foster, the Deputy White House Counsel. The newspapers reported that Foster was a kindergarten playmate of the President, and the former law partner, mentor, and intimate friend of the First Lady. The papers also reported that Foster had committed suicide with a gun. They quoted the Park Police announcing that he had shot himself in the mouth. The weapon had been found in his hand. "That's when I thought, 'Sweet Jesus, this thing's big,' and my brother told me: 'You'd better keep your mouth shut, boy, or you're in trouble.'"
He did exactly that for seven months. Then he heard about an astonishing article in The New York Daily News. The newspaper, which has close ties to the Clinton White House, alleged that the man in the white van had never really existed. He was a fiction created by two Park Service workers trying to cover up a bout of truant drinking at Fort Marcy Park.
The Confidential Witness did not relish the implications of this. "I went, 'Wait a minute. Who in the world can put that kind of pressure on two career employees to make them tell that kind of garbage?' That's when I became really concerned about my safety."
The more he thought about it, the more sinister it appeared, so he decided to protect himself by telling his story to the G. Gordon Liddy radio talk show. He was not a Liddy fan, but his brother was, and he knew that the Watergate legend would never betray his identity. Liddy in turn persuaded him to talk to two old veterans in the FBI, believing they would give him a good shake.
The FBI did not take well to the Confidential Witness. By then, April 1994, the Bureau had already decided where it was heading with the investigation of Independent Counsel Robert Fiske. It had also decided that a .38 caliber Colt revolver was going to play the star role in wrapping up the case. One can imagine their annoyance at the sudden appearance of a witness bent on taking the gun away from them.
It was too late to start the investigation all over again. Fiske's office had already leaked to The Wall Street Journal that the case was practically closed. On April 4, 1994, The Journal reported that investigators "are expected to release a report this month declaring the death of white House aide Vincent Foster a suicide .... The report, to be issued by Special Counsel Robert Fiske, would largely confirm findings by the U.S. Park Police." It was careless of Fiske's staff to leak so prematurely, for it revealed that the conclusion of suicide had been reached before any serious work had actually been done.
The historical record shows that the FBI had not started to interview the key witnesses until late April. They did not talk to Lisa Foster until May 9. The FBI crime labs received the specimens for their firearm tests, chemical analyses, serological analyses, DNA analyses, and mineralogy tests on May 25. They received the "fingerprint card of Vincent W. Foster, Jr.," on May 31.
Verdict first. Interviews later. Tests later. Wonderland on the Potomac.
"It was these two agents, a big guy and a little guy, real smooth they were, and they kept trying to get me to say that the gun could have been hidden, and I kept saying: how many times do I have to keep telling you that there was no gun? It must have happened two dozen times at least .... The next three times they came I made sure there was a witness around, a lady-friend of mine, because I didn't like the way things were going."
But in the end they wore him down. They explained that the weapon had flipped over and was hidden from view beneath the palm of the hand, with nothing visible except the trigger guard. If that was so, the witness allowed, then it was perhaps conceivable that he had failed to see the gun.
But the FBI had tricked him. A few weeks later he was shown a crime scene photo that had been leaked to ABC News. It showed the gun in clear view in Foster's right hand.
"The lying sons of bitches, that was not the picture of what I saw at that scene, point blank," he told me. "Somebody had come after I left and put a gun in the hand."
Two months later, on June 30, 1994, the Fiske Report came out concluding that Foster "committed suicide by firing a bullet from a .38 caliber revolver into his mouth .... The evidence overwhelmingly supports this conclusion, and there is no evidence to the contrary."
The witness obtained a copy of the report and tried to avoid an apoplectic attack as he perused the section entitled "Observations by the Confidential Witness." It stated that "he did not see a gun in the man's hands but said it was difficult to see his hands because of the dense foliage in the area where the body was lying."
"When I saw the Fiske Report, I knew I'd been had," he said. "All you can do with that piece of garbage is flush it down the toilet."
A year later he learned that the FBI had distorted his witness statements. One of his" 302" write-ups said that "traces of dry black blood were running from the side of the mouth and nose down the right side of the face."
"Where the hell did they get that from?" he snapped. "There was no blood running down the face... none ... absolutely not true. What's more I told them that when they gave me my statement to sign. I underlined it and said take it out .... Goddamn sons of bitches!"
By then he was in touch with Representative Dan Burton (R-Ind.), who was so suspicious about the case that he later carried out a crime scene simulation, firing a .38 caliber revolver into a watermelon to see how far the noise would carry in the suburbs. (A long way.) Burton asked the Confidential Witness to give a sworn deposition. He agreed. When asked under oath if he was sure about the gun, he replied: "As sure as I am standing here. I am absolutely and totally, unequivocally [sure] the palms were up. I looked at both palms. There was nothing in his hands."
Nothing came of it. The Confidential Witness retreated back into the shadows. Reflecting on the event three years later, he suspected that he had disturbed the crime scene before it was "ready" and thought that he was very lucky to be alive.
"The whole thing stinks, he clearly didn't shoot himself there. You can't shoot yourself without a gun. The man had no gun. End of story."
* * *
It is not every day that the U.S. Park Police have a dead body on their hands. Perhaps that is why Park Police Officer Kevin Fornshill was so eager to respond when a "DB" alert came over the radio at 6:05 PM and 30 seconds. [3]
He was responsible for guarding the parkway entrance to the CIA, where he had been posted on special assignment. It was not really his job to rush over to the crime scene, or death scene, or whatever it was. That was the task of the beat officer in Car 211, Franz Ferstl, who was patrolling the parkway. But Fornshill took it upon himself to find the body before anyone else.
The paramedics from the Fairfax County Emergency Medical Services were arriving when Officer Fornshill reached the park. Fornshill and the rescue workers fanned out in different directions to search for the body. Fornshill took the upper path into a small clearing. He was joined by rescue workers Todd Hall and George Gonzalez from the McLean Fire Service, Company One. He instructed the two paramedics to go one way while he went off alone, "running at a pretty good clip," to a hidden grove in the top comer of the park. [4]
His instinct was uncanny, for there was the corpse: white male, hazel eyes, grey-black hair, 6' 4", 197 pounds, lying in the shrubs by the second cannon. The time was 6:14 PM and 32 seconds. It was almost half an hour after the body had been discovered by the Confidential Witness.
When rescue worker Todd Hall reached the grove a few seconds later, he saw men running away from the scene into the woods. He pointed this out to Park Police Officer Fornshill, but Officer Fornshill did not respond.
The FBI was clearly bothered by this incident. They interviewed Hall twice, first on March 18 and then on April 27, 1994. The first FBI 302 report gave his observations no more than a mild massage. "Hall thought he heard someone else in the woods. He subsequently saw something red moving in the woods. He was unable to determine if it was a person." [5]
But then he was given the treatment. The FBI suggested to him that he might have mistaken men for cars moving along Chain Bridge Road. The FBI even took him to Fort Marcy Park and showed him the road. Being a go-along-get-along kind of man, Hall took the hint. His second statement reads: "Upon discovering that there was a road in the area, Hall believes that it is possible that he saw vehicular traffic on route 123." [6]
Well, what was it, he was asked under cross-examination at the Whitewater grand jury in early 1995, was it people running away or was it the flash of cars? It was people, he answered. It could have been cars, he said, but what he saw was people. [7]
By this time a gun had appeared. Todd Hall was about to check the carotid pulse when he noticed the weapon in Foster's right hand, with parts of it tucked under his right leg. He called out to Fornshill, who was already leaving. The Park Police officer came back for a brief look but was unable to see the gun, or so he says: "I sort of strained a little bit, and because of the bushes and the growth on the ground, I couldn't see what he was talking about."8 However, the Polaroid leaked to ABC News showed that the gun was clearly visible.
Even though Fornshill had lost all curiosity in the crime scene, he still felt confident enough to infer the cause of death. After two minutes, he contacted Park Police communications and announced that it "appeared to be a suicide." Based on what? he was asked later. [9] "Based on the determination the person was dead." Realizing that this was a little thin, he added: "Again, my assumption from the paramedic and that the gun was found in his hand."
The revolver, however, had still not found its final resting place. The crime scene photos show it hopping about in a most animated way in Foster's hand.
"When I went before the grand jury they showed me two Polaroids," I was told by a member of the Fairfax County rescue squad, as we traipsed through the shrub in Fort Marcy Park. "And you know what? You could see blades of grass coming through the forefinger and the second finger in one, and another had grass between the second and third fingers. The prosecutor was real interested in that, real interested." [10]
The grand jury learned a good deal about the revolver in the early months of 1995, during the probe of Associate Independent Counsel Miquel Rodriguez. But the jury was disbanded before it could do any damage. It learned, for instance, that Franz Ferstl, the second Park Police officer to reach Fort Marcy, had questioned the probity of the crime scene photos taken later that evening after he had left. He stated under oath that the gun was in a different position when he saw it. Somehow the right hand had been edging out away from the body.
The set of Polaroids that Officer Ferstl took very early that night, recording the scene when the police first arrived, has disappeared. But that is getting ahead.
At Fort Marcy Park on July 20, 1993, the Foster case was closing down minute by minute. Once Officer Kevin Fornshill had telegraphed news of the gun-in-the-hand-that-he-never-saw, the U.S. Park Police felt that their work was over. The chief detective at the crime scene, Cheryl Braun, was disarmingly frank about the methodology of concluding suicide.
"It seems to me that we made that determination prior to going up and looking at the body," she said. "The gun was in his hand, it was trapped on his thumb. That to me would indicate that he fired the weapon himself." [11]
Having contributed her shafts of insight, Detective Braun then delegated the case to Officer John Rolla. It was his first death investigation, and it showed.
The beauty of using the Park Police to handle the violent death of Hillary Clinton's closest friend is that no other agency could hope to get away with such elliptical logic. Everything they did could be absolved under the capacious rubric of inexperience. But the Park Police have mandatory guidelines, drafted for their Criminal Investigations Branch, which stipulate that "all deaths shall be considered homicides until the facts prove otherwise."
The facts did not prove anything at all at this point. The gun can stay in the hand, due to spasmodic reflex, but typically it does not. The recoil from a .38 caliber revolver usually throws the weapon some distance from the body. Far from establishing suicide, the presence of a gun in the hand is something of a red flag for homicide detectives.
It was not obvious to the paramedics that this DB was a suicide, and the paramedics had far more experience with violent deaths than the Park Police.
Richard Arthur, who had attended to 25 or 30 gunshot deaths in his nine years as a rescue worker, believed it was a homicide. "I've just never seen a body lying so perfectly straight after a bullet in his head," he said. [12]
Back at the McLean Fire Station he pulled up the incident report of his colleague, Corey Ashford, and found that Ashford had coded the death a homicide. [13]
But the Park Police had made up its mind. There was no further need to investigate; no need to canvass the houses around the park to see if anybody had heard a shot; no need to check whether the gun actually worked (the ATF was not asked to do a ballistics check on the gun until August 12, 1993, seven days after the Park Police had already issued its final report); no need to do anything other than dot a few "i"s and cross a few "t"s.
The Park Police ruling of suicide had the effect of crimping further inquiry. It was cited by the Justice Department as grounds for backing off its original pledge to conduct a vigorous investigation. It also kept the FBI at bay. Under the Assassinations Statute, the FBI would have been compelled by law to take over the case if there was any question that it might have been homicide. [14]
The FBI was in turmoil anyway. Director William Sessions had been defenestrated the day before Foster's death in a well-executed Washington putsch. This event passed with remarkably little protest from the U.S. watchdog press, considering the precedent at stake. The Director of the FBI is appointed for a ten-year term, somewhat like a judge, because it has always been understood that a politicized FBI would upset the equilibrium of American government. The most important quality that an FBI Director must have is prickly independence. All else is secondary. Sessions had his faults, but at least he was a man who resisted meddling by the White House in the internal affairs of the Bureau. That, of course, was why he had to go.
Sessions had made himself unpopular with the old-boy network at the FBI because of his aggressive policy of affirmative action for blacks, Hispanics, and women. So to some degree he was the victim of a reactionary backlash within the Bureau. [15] But it was President Clinton who fired him. The pretext was an "ethics cloud," the most memorable cloud being that Alice Sessions, the Director's wife, had transported a bundle of personal firewood on an FBI aircraft.
On Saturday, July 17, Sessions was told by Attorney General Janet Reno that he would be fired by Monday unless he resigned. The meeting took place at the Justice Department, yet White House Counsel Bernie Nussbaum was present in the room.
Sessions refused as a "matter of principle."
On Monday afternoon the President called to tell Sessions he had been dismissed. Clearly in a great hurry, Clinton called a second time minutes later. Sessions was to leave the Hoover Building "effective immediately." [16]
The President appointed Deputy Director Floyd Clarke to take over the Bureau until a successor could be found. It would later emerge that the White House had already been working quietly with Clarke for some time.
The next day, Foster was found dead. Clarke failed to assert FBI jurisdiction, leaving the Park Police in charge. The Foster investigation slipped through the cracks.
If there was no need for a homicide probe on the night of July 20, 1993, there was no need for one later. One after another, the investigators skimmed over the surface of the case. Independent Counsel Robert Fiske, the Senate Banking Committee (twice), Congressman William Clinger (twice), and finally Kenneth Starr -- all reploughed the same old ground. They dwelt on evidence that would validate the original finding of suicide, accepting the original premises of the Park Police. The gun sealed it.
* * *
Vince Foster had promised to take Lisa out for a "date" on the evening of Tuesday, July 20. At about 5:00 PM she called his office at the White House to find out what his plans were, but was told that he was "unavailable."
She tried again later. This time she was told that the President was appearing on CNN's Larry King Live at 9:00 PM, but nobody knew where Vince had gone. She waited at their quaint Georgetown home at 3027 Cambridge Place, where the family was crowded together in circumstances that were very different from the spacious elegance of Hillcrest Heights in Little Rock.
At about 10:00 PM there was a commotion outside. Laura Foster opened the door to find Park Police Detective John Rolla standing on the step. A gaggle of longfaced Arkansas friends and relatives were clustered behind. "Mother," she yelled, up the stairs. "Mother." [17]
Lisa Foster came downstairs and stood on the third step. Detective Rolla broke the news. "I asked her to sit down, it was very rough .... I said, I'm very sorry to tell you that your husband, Vincent, is dead." [18]
In an interview with The New Yorker, Lisa later admitted to feeling a twinge of relief that it was her husband who was dead, not her son Vincent III, as she had feared at first. But the blow was hard.
"She was hysterical, screaming, collapsed on the step," said Detective Rolla. "The only question I got to ask was about the gun, did Vincent own a gun. She asked me what does it look like.... Well, it's a black-colored revolver, a .38 revolver. She cut me off, and threw up her hands and said, I don't know what guns look like, and walked into the kitchen away from me." [19]
Nine days later Lisa Foster was interviewed at the K Street law offices of Swidler & Berlin, under the auspices of lawyer James Hamilton, the White House "surrogate" who had been assigned to her. "She was presented with a photograph of the weapon found with Mr. Foster's body but was unable to identify it," states the Park Police interview with Lisa Foster. [20]
The handwritten notes of Park Police Captain Charles Hume were more explicit: "not the gun she thought it must be. Silver six-gun, large barrel." [21] Apparently, she was referring to an old silver gun owned by Vince's late father, which she had seen in a trunk in Little Rock.
There was a cursory effort to see if Vince Foster's sister in Little Rock, Sharon Bowman, could identify the revolver. An outdoors type, she had a better knowledge of the family collection.
"When shown the gun, Sharon Bowman identified it as appearing very similar to the one their father had kept in his bedside table, specifically recalling the pattern on the grip," says the Fiske Report, using this as a key prop in the authentication of the gun. [22]
This is a nice exhibit of Fiske's methods. In fact, the record indicates that Fiske's investigators never showed Sharon Bowman the gun. If they ever to spoke to her at all, they did not leave any paper trail. What the documents reveal is that Ms. Bowman was shown a picture of a gun by a family friend, who then wrote to the Park Police saying that the "pistol in the photograph" looked like a gun she had seen in her father's collection.
In fact, she did not identify it. Her husband, Lee Bowman, told me a very different version of this story. "Sharon thought she would be able to recognize it, but she really couldn't," he said. [23] Fiske's entire identification is built on a might or a perhaps that was nothing more than hearsay in the first place.
It was their son, Lee Foster Bowman, who had the most detailed knowledge of the guns. He had fired some of his grandfather's collection -- three handguns, four shotguns, and two or three rifles -- when they used to go duck hunting together at a cabin in Yellowcreek, Arkansas, and he expected to be able to identify the .38 Special with an etched handle that the old man kept by his bed. [24] But the gun found at Fort Marcy Park was an "old piece of junk," nothing like the elegant silver-colored antique he remembered.
"He didn't remember the black handle and the dark color of the metal." [25]
The truth is, no member of the family was ever able to identify the gun found in Foster's hand. Not one. Ever.
The Fiske investigation managed to transcend this. His FBI agents cut the Gordian Knot with a single stroke of Alexandrian audacity by showing Lisa Foster the wrong gun. Back at Swidler & Berlin on May 9, 1994, nearly a year after Foster's death, she gave a long interview to the FBI. [26]
"Lisa Foster believes that the gun found at Fort Marcy Park may be the silver gun which she brought with her other belongings when she permanently moved to Washington," reads the FD-302 writeup of the interview. The black gun was now silver. The widow, who was taking Prozac for depression, finally recognized the gun that she had not been able to identify a year before.
Incurious members of the American press were informed by the Fiske Report that "the gun looked similar to one that she had seen in their home in Arkansas and that she had brought to Washington." [27]
In September 1995, Lisa Foster spoke out for the first time in a New Yorker piece by Peter Boyer. Seemingly unaware that she was contradicting her statements to the police, she now talked about the gun as if she had been able to identify it all along. It was a feature article, not a piece of investigative journalism, so I would not wish to fault Boyer for failing to study the source documents. What the records show, however, is that Lisa Foster had been tricked by the FBI -- or had allowed herself to be tricked.
The article was extremely influential. It was cited by conservatives as the final word on the Foster case. The editor of my own newspaper in London, The Sunday Telegraph, found it so convincing that it made him wary of dissenting views. On Capitol Hill it promoted a feeling of disdain, bordering on disgust, for those who continued to allege a cover-up of the death. Leave the poor family alone! One heard it all the time.
Lisa Foster was building a new life. Three months after the article appeared she married Jim Moody, a kindly lawyer who had just been appointed a U.S. federal judge in Little Rock. Moody moved into the Foster residence at 5414 Stonewall, an unusual thing to do in the South. The spirit of Vincent Foster had been exorcised. "I have found a wonderful man whom I love and who loves me, and who will be good to my children," she told The New Yorker. "I can't do anything about the fact that Vince is gone."
* * *
So, what do we actually know about this peripatetic gun that was never identified by the family?
It did not have Foster's fingerprints on it, although a print belonging to somebody else was found on the underside of the grip. [28] The FBI crime labs offer one of their deliciously bureaucratic observations about this. "An individual who does not perspire readily" might not leave a print. No doubt true, but July 20 was one of the hottest, muggiest days of the summer of 1993. It then goes on to add that "atmospheric conditions" such as "snow" could destroy any latent prints.
The weapon was a .38 caliber Colt Army Special revolver with two different serial numbers -- one was a butt number -- both dating back to 1913. It was too old to trace. [29]
It was a workhorse gun. Huge numbers were made. The photos show that it had a four-inch barrel with a big jagged metal sight. The gun supposedly kicked back from the soft palate at the back of Foster's mouth without chipping his teeth or damaging the gum tissue.
Anybody who has fired a .38 Special knows that the recoil is fierce. The one time I tried-courtesy of the central Idaho militia -- both my hands were thrown back over my head, and the noise echoed down the Salmon River valley for miles.
There were no visible powder burns inside Foster's mouth, and no signs of gunpowder on his face. [30] "Limited chemical testing" by the FBI Lab did not reveal the presence of any blood on the gun. [31]
The bullet was never found. It should have been close by because it barely forced its way through the back of Foster's skull, if we are to believe the description of the wound in the autopsy report. Inside the cylinder was a second, round-nosed, Remington high-velocity bullet. No matching ammunition was found in Foster's house.
In the Fiske Report there is a passage explaining that "it would have been enormously time-consuming, costly, and in all likelihood unproductive, to have searched the entire park for the bullet."
Quite so. It is hard to fault a single word of that nicely crafted sentence. Nevertheless, the Starr probe decided that this would have to be done before it could hope to close down the exasperating Foster case. By then Kenneth Starr had brought in the renowned forensic expert Henry Lee to review the case. Henry could work wonders, but not with thin air. He was demanding one scrap of evidence that would indicate Foster died where his body was found. Henry wanted that bullet.
So Starr launched a six-week blitz at Fort Marcy Park in the fall of 1995, more than two years after the death, using cranes to scan the big maple trees above the site. When I visited one evening I found that the melancholy groves had been torn to pieces. A wedge-shaped grid had been marked out with cords, and stakes had been posted all over the place indicating the discovery of bullets. Some of them dated back to the Civil War.
Most of all they found snakes. "You wouldn't believe how many snakes there were in there," said one of Starr's prosecutors over dinner at the Occidental Grill. "One of our FBI men got bitten on the arm by a copperhead."
The highest metal-detecting powers of the U.S. federal government had been mobilized, but the elusive Remington had escaped.
No bullet.
No shot either. Nobody heard the shot. Not that the Fiske investigation would have reason to know. When I was sleuthing in the park one day in 1995 I struck up a conversation with an elderly couple walking their dog. They invited me back for coffee at their house, which was well within earshot of the second cannon. To my astonishment they said that the FBI had never dropped by to learn if they had heard that. 38 Special on the quiet, sultry afternoon of July 20, 1993.
There are five homes within 570 feet of the spot where Foster's body was found. One of them, 1317 Merrie Ridge Road, belongs to Senator Bennett Johnston of Louisiana. The closest is 660 Chain Bridge Road. It is 300 feet away. With a sand wedge you could pitch a golf ball over the top of it. If you had a 2-iron you could probably put a ball though the front windows of fifty houses.
Nobody heard a shot.