Penn State trustees in 2011 passed on hiring former Homeland Security Secretary Michael Chertoff to conduct the university’s investigation into the Jerry Sandusky scandal and instead selected former FBI director Louis Freeh, according to newly disclosed emails that shed light on the confidential hiring process.
Chertoff was the favorite over Freeh in initial discussions on Nov. 11, 2011, between Penn State trustees Ken Frazier and Ron Tomalis, who were leading a task force to oversee the investigation and looking to hire the lead counsel, according to the emails, which were released to Penn State trustee candidate Ryan Bagwell in an open-records case.
But, a few days later, after Frazier and Tomalis interviewed Freeh and Chertoff at the Washington office of Frazier’s company, Merck, Freeh emerged as the favorite.
“On balance, Ron and I recommend Judge Freeh,” Frazier wrote to trustee leaders and the university lawyer Cynthia Baldwin after interviews on Nov. 17, 2011. “He strikes us as more at ease with the media side of things and it is clear that this will be his #1 priority. We also think the FBI credential lends itself to an investigation of this type.”
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Tomalis also consulted Gov. Tom Corbett about who should lead the investigation into the Sandusky scandal, which arose out of a criminal investigation Corbett initiated as attorney general in 2009. Corbett was fine with whoever had more time to devote to it.
The emails containing the previously undisclosed information about the hiring process were released to Bagwell through his ongoing open-records request involving Tomalis’ former agency, the state Department of Education. Bagwell provided the emails to the Centre Daily Times.
The revelation that Chertoff was the other finalist to take on Penn State’s investigation adds another layer to the much-scrutinized public record of the Freeh report, which blamed university leaders for covering up for Sandusky, was accepted by Penn State trustees and then used by the NCAA to swiftly punish the football program with a fine, a bowl ban, scholarship reductions and other sanctions.
Critics have long blasted the report as incomplete for reasons such as the absence of interviews from certain figures in the scandal, such as Joe Paterno, ex-assistant coach Mike McQueary, former athletic director Tim Curley and retired vice president Gary Schultz.
The emails also expose another layer of potential conflicts of interests that had to be considered, as Chertoff’s firm, Covington and Burling, had ties to Merck. A lawyer for the firm was the trial counsel to Merck in several pharmaceutical cases, including Vioxx.
Freeh’s firm, Freeh, Sporkin and Sullivan, merged with Pepper Hamilton, a firm that also represented Merck in several of its Vioxx cases.
Freeh and Chertoff have another connection.
Chertoff criticized the report Freeh did for casino company Wynn Resorts Ltd. as “deeply flawed.” Freeh investigated an investor, and his report ended up accusing the investor, Japanese billionaire Kazuo Okada, of bribing gaming officials in the Philippines.
Wynn’s shareholders used Freeh’s conclusions to force Okada to sell his shares at a discounted price, and Okada lost $800 million.
Okada commissioned Chertoff to critique Freeh’s Wynn report, and Chertoff said Freeh’s work was “structurally deficient, one-sided, and seemingly advocacy-driven.”
For the Penn State investigation, according to a Nov. 11, 2011, email from Frazier to Tomalis, U.S. Rep. Pat Meehan wanted members of Pennsylvania’s congressional delegation to have a representative on the task force the trustees were assembling. Meehan’s rationale for representation was that Penn State receives federal funding.
Frazier discussed with Meehan, R-Delaware County, the “slippery slope” of including some elected officials and not others, and Meehan agreed not to pursue the matter. Frazier told Tomalis that he’d provide Meehan with “periodic status reports” from the task force.
During that same email conversation, Frazier told Tomalis why he favored Chertoff: The interviews had not yet been set up, and Frazier was basing his opinion on what he’d read about Chertoff and Freeh on a trip home from Penn State.
Frazier said he liked that Chertoff’s firm was larger than Freeh’s firm before its merger.
“In my view, this gives a decided edge to Chertoff,” Frazier wrote to Tomalis on Nov. 11, 2011. “In the day-to-day work of these kinds of matters, it matters a great deal what kind of support team the ‘marquee lawyer’ has behind him/her.”
Tomalis responded the same day in agreement, but he said he wanted to know what other resources Freeh had available to him.
Tomalis sent a separate email to Frazier that night, saying he’d spoken with Corbett about having the special investigative counsel talk with then-attorney general Linda Kelly. Tomalis said Corbett had already talked about the task force with Kelly.
Days later, on Nov. 17, 2011, Frazier and Tomalis had four hours of interviews with Freeh and Chertoff. After the sessions, Frazier emailed trustees Steve Garban and John Surma and the in-house lawyer, Baldwin, with a brief summary.
“While we haven’t gotten back to the rest of the Special Committee, our inclination is to go with Freeh,” Frazier wrote. “The biggest complication is that he will have to supplement his firm with an outside firm.”
Later that afternoon, Tomalis wrote to Frazier with Corbett’s advice:
“Talked with the Gov.,” Tomalis wrote. “He is OK with either candidate and only advised to go with the one who can dedicate more time.”
He also said former New York Mayor Rudy Giuliani offered his services.
Frazier responded to that email with a question about whether Corbett had any thoughts about the connection between Merck and Chertoff’s firm. A response was not included in the documents released in the open-records case.
On Nov. 21, in Philadelphia, Freeh was introduced as lead counsel for the investigation.
“I am committed to ensuring that our independent investigation be conducted in a thorough, fair, comprehensive manner, leaving no stone unturned, and without any fear or favor,” Freeh said during a news conference. “We will examine all the relevant records, evidence, information and circumstances. We will attempt to interview all necessary and appropriate witnesses.
“Our mandate is clear.”