Donald Trump is Right to Think that Something is ‘Very Fishy’ About the Vincent Foster Death
I agree with Donald Trump that something is “very fishy” about the Vincent Foster death. Foster was President Bill Clinton’s Deputy White House who was found dead in Virginia’s Fort Marcy Park on July 20, 1993. The official United States government conclusion is that Foster committed suicide by firing a revolver into his mouth with the bullet exiting the back of his head.
In 1997 I made a Freedom of Information Act request seeking some of the photographs taken by the government as part of its investigation into the death. I filed a lawsuit to enforce my request that culminated on March 30, 2004, when the United States Supreme Court issued its opinion in my case entitled National Archives and Records Administration [“NARA”] v. Allan J. Favish, 541 U.S. 157 (2004). A recording and transcript of the oral argument is here.
Two Independent Counsels issued public reports on the death. The first was regulatory Independent Counsel Robert Fiske, who issued his report on June 30, 1994. The second was Independent Counsel Kenneth Starr, appointed under a different statute, who issued his report in July 1997 to the special three-judge panel of federal appellate court judges to whom Starr reported. That panel released Starr’s Foster report to the public in October of 1997.
By the time the Supreme Court got involved (the case had been to the United States Court of Appeals for the Ninth Circuit twice) the parties were arguing over ten original Polaroid photographs of Foster’s body. As the Supreme Court explained, after a federal District Court judge decided that five of the ten photographs should be made public, the Ninth Circuit decided that only four of the photographs should be make public. The Supreme Court decided 9-0 to block public disclosure of the photographs.
Starr’s Office of Independent Counsel (and later the National Archives and Records Administration -- NARA), and Lisa Foster Moody (Foster’s widow) and Sheila Foster Anthony (one of his sisters), both of whom intervened in the case a few years earlier, sought to block public disclosure of the photographs. They argued that the public’s interest in disclosure was subordinate to the privacy interest that the Foster family had in the photographs. They based this argument on a section of the FOIA known as Exemption 7(C), that allows the government to refuse disclosure when somebody’s privacy interest in a requested document compiled for law enforcement purposes outweighs the public’s interest in disclosure.
My primary arguments in opposition were that nobody had a privacy interest in the photographs, and if a privacy interest was found to exist in the photographs, the public’s interest in disclosure outweighed that privacy interest. I argued that the evidence established that the Fiske and Starr reports were not trustworthy, largely, but not exclusively, because of significant omissions. Therefore the public could not trust the government to filter the evidence and the public needed to see the raw evidence. The “suicide-in-the-park” conclusion may be correct, but we cannot conclude that from the publicly available evidence. The public only can make educated guesses about what happened.
As the Supreme Court recognized, the Ninth Circuit held in a 2-1 decision that “Favish, in fact, tenders evidence and argument which, if believed, would justify his doubts” about the government’s conclusion of suicide in the park. Although the Ninth Circuit stated “if believed,” the vast bulk of the evidence did not depend on my credibility because the evidence consists almost entirely of the government’s own documents from the files of the Federal Bureau of Investigation, United States Park Police, and other government agencies.
The number of government investigations and reports is not as important as the demonstrable credibility, or lack of credibility, of those investigations and reports. Some argue as if the credibility of the government investigations is irrelevant, and the raw facts can be ignored if the government has conducted multiple investigations. Under this view, it is difficult to see why there is any need for the FOIA at all because if the government has conducted several investigations, no matter how demonstrably untrustworthy, the public has no need to see any of the hidden evidence. This view is contrary to the purpose of the FOIA, and a license for government corruption.
As my case was concluding, the files of the OIC were transferred to the NARA. According to long-time independent Foster death researchers Hugh Turley and Patrick Knowlton, in 2009 the NARA allowed the public release of copies of various documents from the OIC files. Among the documents Turley and Knowlton posted to their website are documents they identified as having been written by Assistant United States Attorney Miguel Rodriguez, who was the lead prosecutor investigating the Foster death for the OIC before he resigned and went back to his job in Sacramento, California as an Assistant US Attorney. A resignation letter, dated January 17, 1995, states that “the existing FBI interview reports and USPP interview reports do not accurately reflect witness statements,” and that after “having refreshed their recollection with new photographic evidence,” “four emergency medical personnel identified . . . trauma each had observed on Foster’s right neck area.”
A memorandum dated December 9-29, 1994, on the subject of “November 29, 1994 Meeting Concerning Foster Death Matter And Supplemental Investigation Prior to Grand Jury, ” states that one of the Polaroid photos “clearly depicts a dark, burnt appearing, blood area on VF’s neck.” The memorandum states that Rodriguez was “confident” that this was caused by a stun-gun or Taser. The memorandum states that an autopsy photograph (not a Polaroid taken in the park) shows two puncture wounds on the right side of Foster’s neck, and that the District of Columbia Medical Examiner “observed the appearance of crater-like indentations on the right side of the neck.”
During my lawsuit I attempted to take the deposition of Rodriguez and his former assistant Lucia Rambusch. The District Court denied my request, and despite my appeal of the issue, neither the Ninth Circuit nor the Supreme Court addressed the issue.
I did not learn about the documents Turley and Knowlton posted to their website until February of this year. I notified WorldNetDaily about the documents and it published a story about them on February 28, 2016. I am unaware of any other news organization trying to evaluate the authenticity of the documents, or otherwise do additional reporting on the issues raised. In the interest of full disclosure, some of the research by Turley, Knowlton, and their associate, attorney John Clarke, was invaluable to my case.
In my lawsuit, I filed a 750-page three-volume document called the Excerpts of Record. This consists of copies of the relevant documents that were submitted as evidence in the District Court, that were later filed with the Ninth Circuit Court of Appeals. When I cited to these documents in my briefs the pages of the Excerpts of Record were referred to as ER, with the ER page number in the lower right corner of the page. Below is an abbreviated version of what was in my Supreme Court briefs, with links to the pages of the ER. None of the facts I presented were proven false, inaccurate or misleading. The Supreme Court did not specifically address the details of my factual presentation. It merely stated a one-sentence opinion about the evidence: “Favish has not produced any evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred to put the balance into play.” Compare the Supreme Court’s statement to the facts.
Fiske And Starr Did Not Discuss The FBI Memorandum That States “No Exit Wound”
Two days after the autopsy, an FBI agent sent a memo to the director of the FBI stating, “Preliminary results include the finding that a .38 caliber revolver, constructed from two different weapons, was fired into the victim’s mouth with no exit wound.” ER 638, 641. The “no exit wound” phrase directly contradicts Starr, Fiske and the official autopsy report. ER 277, 311-312, 314.
The memo was written by an FBI agent in the Washington, D.C., Metropolitan Field Office to the Acting Director of the FBI, who was Floyd Clarke. A draft of the memo is dated July 22, 1993, two days after the death and one day after the autopsy and had minor corrections made to it. ER 636-638. The final version is date-stamped July 23, 1993. ER 639-641. The memo does not appear to be an impromptu communication because it says it is “[t]o confirm referenced telcalls, on 7/21/93.” ER 636, 639. Neither Fiske nor Starr discussed this memo.
The Medical Report Of A Neck Wound Was Not Discussed By Fiske Or Starr
Officially, there was no neck wound and Foster shot himself in the mouth, leaving an exit hole in the back of the head. ER 277, 311-312, 314. Starr dismisses a report by one of the paramedics that there was a small bullet-like entrance wound on the right side of Foster’s neck. ER 277, 315.
The only medical doctor to view Foster’s body at the park, Dr. Donald Haut, wrote a two-page report that is internally inconsistent. ER 632-633, 634-635. On the first page it states that the death shot was “mouth-head” (ER 634), but on the second page it states that the death shot was “mouth to neck” (ER 635). Moreover, the report appears to have been improperly altered. On page one there is a section near the bottom of the page on the left side that states:
CAUSE OF DEATH:
PERFORATING GUNSHOT WOUND MOUTH-
However, just to the left of the word “HEAD” there appears to be remnants of a four-letter word that was mostly concealed with correction fluid or tape. ER 634.
Fiske never discussed the Haut Report. Starr quoted from the apparently altered language, and failed to discuss both the apparent alteration, and the unaltered language stating a neck wound. ER 277, 308.
Starr Failed To Explain Why The Apparent Alteration Is Missing On One Version Of The Haut Report
There are three certified copies of the Haut Report. One copy was certified on November 2, 1994. ER 634-635. The second copy was certified on January 30, 1995. ER 643-644. The third copy was certified on March 20, 2000. ER 645-650. The first and third certified copies contain what appears to be an alteration that is improper. ER 634, 646. The second certified copy fails to show this apparent alteration. ER 643. Starr failed to explain why the second certified copy does not show the apparent alteration.
Starr Failed To Report That A Park Police Officer And Dr. Haut Said They Did Not See Blood Spatter
A United States Park Police officer who examined Foster’s body at the park testified that he saw a “pool of blood under his head, gun in his right hand, appeared to be a .38 caliber revolver, no sign of a struggle, no other obvious signs of trauma to the body.” ER 105, 109. This same officer reported that there “was no blood spatter on the plants or trees surrounding decedent’s head” (ER 153) and testified that he did not observe any “blowout” from the back of the head (ER 105, 109). A Federal Bureau of Investigation report of its interview with Dr. Haut states, “no blood was recalled on the vegetation around the body.” ER 150. None of these statements are discussed in Starr’s report.
Starr Failed To Report Evidence That Initially There Was No Gun In Foster’s Hand
Officially, Foster was found with a gun in his hand. However, the first person that officially found Foster’s body said that there was no gun in his hand. This witness, known as the “confidential witness,” testified that Foster’s hands were palms-up and empty. ER 168-169. In concluding that this witness “simply did not see the gun that was in Mr. Foster’s hand,” Starr cited the witness’ FBI interview in which the witness said that it was possible there was a gun at the back of Foster’s hand that he might have missed. ER 277, 358.
But Starr failed report that one of the body site photos shows a gun in Foster’s right hand that eliminates the possibility of there having been a gun at the back of Foster’s hand that went unseen by the witness. This photo, leaked to ABC-TV and published in Time and Newsweek, shows Foster’s gun-hand palm down (ER 178-179), while the witness said the hand was palm-up and empty. ER 168-169. This photo shows the gun underneath the palm of Foster’s right hand with the back of Foster’s hand facing up. ER 178-179. The gun is in a position where the witness could not have missed it if it was there when he saw Foster’s hand. This means that the only possible condition that the witness agreed would account for his not seeing the gun, is a condition that did not occur.
Furthermore, the witness testified that his concession that he could have missed seeing the gun was based on the FBI’s representation that Foster’s hands were palms-up with the gun concealed on the other side of Foster’s hand. ER 168-169. The witness testified that the FBI would not show him the photo. ER 168-170. But when he subsequently saw the photo he testified that it was not a picture of what he saw in the park. ER 168-170. Therefore, Starr failed to report that he relied upon a statement by the witness that the witness testified was based on a false representation by the FBI.
Fiske And Starr Relied Upon An Invalid Gun Identification
Starr failed to report that Fiske relied upon an invalid gun identification from Foster’s widow, Ms. Moody. Nine days after the death, according to the Park Police, they showed Ms. Moody a photo of the official death gun (ER 277, 362), which is blued steel and appears black (ER 178-179). Ms. Moody reportedly said she could not identify the gun because it was not silver and did not have a large barrel. ER 277, 362, 156. The FBI said that ten months later, in May 1994, it showed Ms. Moody the actual official death gun, not a photo of the gun, and she “believes that the gun found at Fort Marcy Park may be the silver gun which she brought up with her” from Arkansas. ER 147-149. Referring to this reported inspection of the actual gun, Fiske then reported, without stating the gun colors, that Ms. Moody “stated that the gun looked similar to one that” Foster owned. ER 89, 92.
The problem is that if Ms. Moody was shown the black official death gun at the May 1994 interview and simultaneously identified it as being silver-colored, then she failed to give a valid identification of the black official death gun. Likewise, if she was shown a silver-colored gun at this interview, then she failed to give a valid identification of the black official death gun. No matter what color gun Ms. Moody was shown at the May 1994 interview, given her reported response, Fiske should not have used her response as if it were a valid identification of the black official death gun.
Starr failed to explain why Fiske used Ms. Moody’s invalid gun identification. Starr also failed to explain why, if Ms. Moody was shown the black official death gun in May 1994, she reportedly simultaneously described it as silver, without any report of the FBI agents or attorneys present saying anything about such a bizarre response.
By only reading the Starr Report, one would not know that Ms. Moody’s May 1994 “identification” was invalid. This is because Starr failed to report that Ms. Moody’s reason for not identifying the gun in the photo shown to her nine days after the death was because it was not silver. Also absent from Starr’s report is that the FBI expressly stated that Ms. Moody believed the gun shown to her in May 1994 was silver.
Fiske And Starr Failed To Report That The Park Police Chief Made A False Statement About Alleged Identification Of The Gun
At a press conference on August 10, 1993, Robert Langston, then Chief of the U.S. Park Police, said that the Foster family had identified the official death gun as one of Foster’s guns. ER 166-167. But that statement was false at the time it was made. The press conference was given by Philip B. Heymann, then Deputy Attorney General, Robert Bryant, then Special Agent in Charge of the Washington, D.C., Metropolitan Field Office of the FBI and Chief Langston. ER 166-167.
By the time of the press conference, Ms. Moody had not identified the black official death gun, in part because it was the wrong color. ER 156.
By the time of the press conference, one of Foster’s sisters, Sharon Bowman, failed to give a credible identification of the official death gun. ER 155, 158. The person who showed Bowman the photo of the gun wrote: “I asked if she remembered any other features [other than the wavelike detailing at the base of the grip]. She did not.” ER 155, 158. So as far as Langston knew on August 10, 1993, Bowman did not even remember the color of the gun as a feature she remembered seeing. A gun “identification” that does not include the color of the gun is not an identification. Starr and Fiske failed to report this deficiency in Bowman’s “identification” of the black official death gun.
By Aug. 10, 1993, nobody in the Foster family identified the black official death gun as one previously belonging to Foster. Fiske and Starr failed to report that largely because of its color, the black official death gun could not be identified by Foster’s nephew, who was the surviving family member most familiar with the family’s guns. ER 151-152.
Starr Failed To Report That Foster’s Tongue And Parts Of The Soft Pallet Were Removed Before The Park Police Arrived For The Autopsy
Starr reported that several Park Police officers observed the autopsy, and quoted one of the officers who wrote that after he briefed the autopsy doctor, the doctor “started the autopsy.” ER 277, 309. But Starr failed to report that the next sentence in the officer’s report states: “Prior to our arrival, the victim’s tongue had been removed as well as parts of the soft tissue from the soft pallet (sic).” ER 154. Starr’s omission is significant given that this is an autopsy of a man who allegedly fired a gun into his mouth while leaving behind unresolved questions about a right-side neck wound whose track might have gone through the tongue and soft palate. Additionally, Starr failed to report that the autopsy doctor violated policy by beginning the autopsy before the police arrived (ER 115, 117-118), and that the autopsy doctor refused to tell the police the identity of his assistant (ER 134-135).
Starr Failed To Report Evidence That Foster’s Car Was Not At The Park Shortly After The Death
Starr discussed four people who were in the park between 4:30 p.m., and just before 6:00 p.m., at a time when Foster was probably already dead (ER 154, 89-90, 57, 124-126, 128, 130, 105, 107-108), and his gray car (ER 277, 299, 302, 307, 349) should have been in the park’s parking lot. Starr reported that one of these people reported seeing a brown car, not Foster’s gray car. ER 277, 302. But Starr failed to report that the other three people also reported seeing a brown car, not Foster’s gray car. ER 137-143, 168, 172. Yet, Starr inexplicably concluded that Foster’s gray car was in the lot at this time. ER 277, 307, 349.
In trying to show that there were no suspicious people at the park who may have caused Foster’s death, Starr referred to the statements by two of the witnesses who had reported seeing a brown car, not Foster’s gray car. But Starr failed to report that these two witnesses said that the car they saw was brown, which did not match Foster’s gray car. Starr stated that “[a]ccording to the reports of their interviews at the scene on July 20, 1993, C3 and C4 [the two witnesses] did not see anyone in or touching Mr. Foster’s car.” ER 277, 350. Of course they did not “see anyone in or touching Mr. Foster’s car” because, according to their statements, they did not see Mr. Foster’s car! By omitting the fact that these two witnesses stated that they saw a car that was brown, not gray, Starr left the false impression that these two witnesses saw Foster’s gray car. There is no evidence in the Fiske or Starr reports that the government searched for the brown car reported by all these witnesses.
If Trump’s attorneys ever gave him the same quality of legal service that Fiske and Starr gave to the American people, I suspect that Trump would say: “Your Fired!” Instead of being condemned by people ignorant of the details of the Foster death, Trump should be applauded for having the political courage to say what is obvious to those who have studied the evidence, when so many others are afraid to do so. Donald Trump should use his unique opportunity to encourage the media to examine the important facts of this case with accuracy and thoroughness, and to challenge those who merely parrot the government’s position. Trump should not retreat from his position until somebody can provide plausible and satisfactory answers to the questions raised by the facts discussed in this article.
Allan J. Favish is an attorney in Los Angeles. His website is allanfavish.com. James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled "Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).