Plaintiffs, by counsel and pursuant to the Court’s Memorandum Opinion and Order of April 21, 1999, respectfully submit this Supplemental Memorandum Concerning Substitution and Class Certification.

MEMORANDUM OF LAW

Today is the 25th anniversary of President Nixon’s resignation. Over the years, many liberal pundits and journalists, including Bob Woodward and Carl Bernstein, have dismissed the myriad of Clinton Administration scandals as not being the equal of Watergate. Ironically, however, even just one Clinton scandal -- which George Stephanopoulos admits ". . . had the potential to be [the] most serious scandal yet" -- surpasses the Nixon-era legacy. See George Stephanopoulos, All Too Human: A Political Education, attached as Exhibit 1 at 416. In Watergate, political "plumbers" acting under the direction of President Nixon’s top advisors broke into the Democratic National Committee ("DNC") to conduct political espionage. In Filegate, the Clinton Administration’s own "plumbers," acting under the direction of Hillary Rodham Clinton, broke into hundreds, if not thousands, of FBI and other government files. This represents the most widespread violation of constitutionally-protected privacy rights in American history. And, as was true of the Nixon scandals, monies (albeit this time at the U.S. taxpayers’ expense) have been paid to key witnesses in Filegate, perhaps to keep them silent, such as Anthony Marceca , who took the Fifth Amendment, and Clifford Bernath, who remains the principal "fall guy" in the release of information from Linda Tripp’s confidential Pentagon file.

In this class-action lawsuit, Plaintiffs seek to hold the Clinton White House and the Federal Bureau of Investigation ("FBI"), among others, legally accountable for Filegate, which FBI Director Louis J. Freeh himself has admitted constituted "egregious violations of privacy . . . ‘without justification.’ " Statement of Louis J. Freeh, Director, FBI, dated June 14, 1996, attached as Exhibit 2, at 1. Plaintiffs are among the several hundred former Reagan and Bush Administration appointees, employees and others whose FBI background investigation summaries were unlawfully requested and disclosed to the Clinton White House. As a result, Plaintiffs suffered serious harm and adverse effects, including but not limited to out-of-pocket expenses, emotional distress, mental anguish, loss of privacy and reputation, and embarrassment, among other damages. Indeed, as former White House Counsel Bernard Nussbaum, who was in charge of The White House Counsel’s Office during Filegate, was forced to admit, under oath, to Congressional investigators:

See Statement of Bernard W. Nussbaum before the Committee on Government Reform and Oversight, U.S. House of Representatives ("House Committee"), 104th Congress, 2d Session, June 26, 1996, attached as Exhibit 3, at 2; see also Nussbaum Depo. at 381-82.

The Court has requested the parties to submit supplemental memoranda concerning whether the United States should be substituted for former White House Counsel Bernard Nussbaum, former Director of The White House Office of Personnel Security ("OPS") David Craig Livingstone and former detailee to OPS Anthony Marceca, three (3) key actors in Filegate, and whether this matter should be certified as a class action.

With regard to the issue of substitution, it is important to note at the outset that, in its June 12, 1997 Memorandum Opinion, this Court categorically ruled that obtaining files for political purposes could not fall within the scope of employment:

See June 12, 1997 Order at 18 (emphasis added). Evidence obtained during discovery in this case, combined with other, publicly available evidence, such as Congressional findings, leads to the firm and inevitable conclusion that the FBI background summaries of Plaintiffs and other members of the class were knowingly and intentionally obtained and misused. Moreover, in response to a subpoena duces tecum served by Plaintiffs pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, the Clinton Justice Department’s designee failed to identify a single fact that she reviewed concerning the Clinton Justice Department’s certification that Nussbaum, Livingstone and Marceca were acting in the scope of their employment. Consequently, not only was the certification a sham, but the United States cannot be substituted for Nussbaum, Livingstone and Marceca.

With regard to the issue of class certification, the evidence obtained during discovery, combined with other, publicly available evidence, also leads to the firm and inevitable conclusion that this case satisfies all of the requirements for class certification.

Consequently, Plaintiffs respectfully request that the Court reject the Clinton Justice Department’s sham certification that Nussbaum, Livingstone and Marceca were acting within the scope of their employment and certify this case as a class action under Rule 23 of the Federal Rules of Civil Procedure, with Plaintiffs as the class representatives.

Early in this case, Defendants Executive Office of the President ("the Clinton White House" or "EOP"), FBI and Hillary Rodham Clinton moved to strike Plaintiffs’ class action allegations. The United States also intervened to substitute itself for Defendants Bernard Nussbaum, Craig Livingstone and Anthony Marceca, then not too cleverly moved to dismiss Plaintiffs’ claims on the purported basis that Plaintiffs had failed to exhaust administrative remedies under the Federal Tort Claims Act. In doing so, the Clinton Justice Department submitted a "certification" that Nussbaum, Livingstone and Marceca were acting within the scope of their employment with respect to Plaintiffs’ common-law tort claim for invasion of privacy. This conclusory certificate, dated February 18, 1997, states:

See February 18, 1997 Certification of Eva M. Plaza, Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice, attached as Exhibit 4.

Discovery was stayed for approximately eleven (11) months while the Court considered this and other issues raised by Defendants in various motions to dismiss. Ultimately, however, the Court saw through Defendants’ ruse, denied their various motions, and ordered the parties to participate in discovery before taking up the substitution and class certification issues. See Memorandum Opinion and Order dated June 12, 1997. Discovery has since proceeded along two (2) overlapping tracks: (1) discovery specific to issues of substitution and class certification; and (2) general discovery. General discovery continues. However, the Court has yet to extend the initial limit it set on depositions.

Nonetheless, the discovery obtained to date by Plaintiffs provides substantial, compelling evidence relevant to the issues of substitution and class certification, and the case as whole. Plaintiffs’ discovery has also revealed that the Clinton Justice Department’s certification on the substitution issue was nothing more than a sham. Specifically, Plaintiffs served a subpoena duces tecum on the Clinton Justice Department under Rule 30(b)(6) of the Federal Rules of Civil Procedures, which required the Clinton Justice Department to designate:

See Subpoena dated June 7, 1999, attached as Exhibit 5.

Rather than attempt to comply with Plaintiffs’ subpoena, the Clinton Justice Department moved to quash, claiming that the person who signed the original certification, Ms. Plaza, was no longer employed by the Clinton Justice Department, and, consequently, that only its litigation counsel in this action could testify. For good measure, the Clinton Justice Department added the now all too familiar, disingenuous "Clintonian" doublespeak that this would violate the attorney-client and other privileges.

The Court rejected the Clinton Justice Department’s arguments. See June 22, 1999 Memorandum and Order. It then conjured up Ms. Helene Goldberg as its Rule 30(b)(6) designee. However, Plaintiffs’ Rule 30(b)(6) deposition made clear that Ms. Goldberg had virtually no knowledge of the factual basis for the certification. Apparently, Ms. Goldberg had been "pony-ed up" by the Clinton Justice Department shortly before the deposition:

See Goldberg Depo. at 8. Rather than identify a single fact that the Clinton Justice Department relied on in issuing the certification, Ms. Goldberg referred to a series of interviews allegedly conducted by the Clinton Justice Department, then pointed Plaintiffs to a huge body of documents, including approximately forty (40) transcripts of depositions, interviews and hearings before Congressional committees. Ms. Goldberg’s testimony made clear, however, that she had not reviewed any of this material, and, consequently, had no understanding of the alleged factual basis for the certification. Id. at 8-11, 49-50, 82-96. In referring to a written memorandum purporting to list the information and documents upon which the Clinton Justice Department allegedly relied in issuing its certification, which hinged on alleged communications with certain witnesses, she had no knowledge of any substantive communication. For instance, Mrs. Goldberg typically responded as follows:

* * *

Q: Same question with regard to Mari Anderson?

* * *

Id. at 80-96. Ms. Goldberg’s testimony was so lacking that it constitutes an admission that there was simply no basis for certification on behalf of Nussbaum, Livingstone or Marceca.

As this Court recognized when it authorized discovery into the issues of substitution, a bona fide Justice Department certification is entitled to de novo review. See June 12, 1997 Memorandum Opinion at 18, citing Kimbro v. Velten, 30 F.3d. 1501, 1509 (D.C. Cir. 1994). Because the Clinton Justice Department failed to provide any verifiable factual basis for its certification in response to Plaintiff’s Rule 30(b)(6) subpoena duces tecum, that certification is not only entitled to no weight, but it is obviously fraudulent and sanctionable. A de novo review -- or indeed any level of review -- thus requires that the attempted substitution be rejected, if not for its lack of a factual foundation, then as a sanction for the Clinton Justice Department’s failure to respond to Plaintiffs’ Rule 30(b)(6) subpoena duces tecum in a proper manner.

Finally, it must also be noted that there are several motions to compel currently pending before the Court. These include a motion for leave to depose Hillary Rodham Clinton and Kennedy’s ex-wife, who witnessed Kennedy illegally loading FBI files onto his laptop computer at home. Plaintiffs respectfully submit that, as explained in these motions, the additional testimony as sought by Plaintiffs, the need for which became apparent as Plaintiffs exhausted limited witness discovery during the initial discovery period, is highly relevant and necessary for the Court’s rulings on substitution and class certification. Thus, Plaintiffs respectfully request that they be allowed to supplement this memorandum after the Court has granted them leave to obtain this additional testimony.

Filegate is a mentality, if not a way of life for the Clintons and their allies. Realizing their long history of ethical and legal lapses, if not criminality, and the political challenges this has spawned since the Clintons’ days in Arkansas, Filegate represents a desperate but also chillingly pragmatic willingness to acquire and use confidential information against perceived adversaries to coerce and extort silence or some other desired action or inaction. It includes, but is certainly not limited to, the Clinton White House’s gathering and misuse of FBI background summaries and other materials on former Reagan and Bush Administration staffers, among others. It can also be seen in the past histories of Defendants and other key individuals in the Clinton Administration, and includes the use of private investigators, the investigation of the "personal peccadilloes" of political opponents, and the calculated, but ruthless willingness to try to destroy innocent persons who might stand in the way of the Clintons’ political plans. Most recently, it can be seen in the efforts to destroy the credibility and reputations of Ms. Linda Tripp and Ms. Kathleen Willey and other innocent female witnesses during the impeachment and trial of President Clinton. Dick Morris, the Clintons’ political advisor and representative, has called this the Clintons’ "Secret Police." See, e.g., Dick Morris, "Bill’s Secret Police Strike Again," New York Post, March 17, 1998, attached as Exhibit 6.

The Filegate mentality dates back to at least 1982. According to a new book by Christopher Anderson, a former contributing editor to Time magazine and liberal journalist, in that year Mrs. Clinton hired an ex-FBI agent to investigate and "get dirt" on her own husband and women to whom he had been linked. See Excerpt from Christopher Anderson, Bill and Hillary: The Marriage, attached as Exhibit 7, at 185 and 220. Like the President, Mrs. Clinton effectively admitted recently that she has lied over the years about the women who have been tied to her husband -- despite knowing the truth about their relationships with him -- in an apparent attempt to destroy the credibility of these women and thus prevent harm to her and her husband’s political ambitions and maintain their hold on The White House. See Nick Pisa, "While I Still Love Bill, ‘Weaknesses Were Caused by Childhood Abuse,’ Says Hillary," Sunday Mirror, August 1, 1999, attached as Exhibit 8 (discussing Mrs. Clinton’s recent interview in Talk magazine).

The mentality of Filegate manifested itself again in 1984. Mr. Dennis Casey, a Democratic political consultant who testified before the House Committee investigating Filegate "despite a great deal of personal and professional risk," recalled a telling incident involving Livingstone and Marceca during Sen. Gary Hart’s 1984 presidential campaign that eerily presaged both Filegate and presidential advisor George Stephanopoulos’ reference to an "Ellen Rometsch strategy" among White House allies. Specifically, Mr. Casey testified that, during the 1984 campaign, Livingstone and Marceca wanted to use "dirt" Livingstone himself had gathered on labor leaders and public officials in the hopes of neutralizing them or getting them to switch their support from Vice-President Walter Mondale to Sen. Hart:

See Excerpt from June 26, 1996 Hearing Before the House Committee, attached as Exhibit 9, at 470-71 (emphasis added); see also "Investigation into The White House and Department of Justice on Security of FBI Background Investigation Files," Nineteenth Report by the Committee on Government Reform and Oversight, U.S. House of Representatives, 104th Congress, Second Session, September 28, 1996, ("House Report"), attached as Exhibit 10, at 38.

The mentality of Filegate manifested itself again during the 1992 presidential campaign. At his deposition in this matter, Bernard Nussbaum admitted that, during the campaign, he and other Clinton campaign staffers (Nussbaum believes he consulted with Clinton confidante Susan Thomases) seriously considered bringing both criminal and civil charges against Gennifer Flowers for "lying" about her affair with Bill Clinton, an affair which Clinton himself confirmed under oath six (6) years later and about which Mrs. Clinton had information from her private investigator confirming that it had, in fact, taken place. See Nussbaum Depo. at 190-193; Excerpt from Christopher Anderson, Bill and Hillary: The Marriage, attached as Exhibit 7, at 185 and 220.

Also during the 1992 campaign -- which was run by James Carville -- Betsey Wright, one of Bill Clinton’s closest confidantes, investigated "bimbo eruptions" such as the Gennifer Flowers story and attempted to intimidate and silence women who, like Gennifer Flowers, might go public with embarrassing details about the candidate. One of the methods used to threaten women was to dig up "dirt" on them in order to blackmail them into silence or destroy their credibility and reputations if they decided to speak out. Top Clinton adviser and representative Dick Morris and respected, award-winning journalist Michael Isikoff reported that the Clinton presidential campaign funneled $100,000 in campaign funds, subsidized with federal tax dollars, to a team of private investigators to help track down and stamp out these "bimbo eruptions." The monies were passed through a Colorado law firm to mask the true nature of their intended use. One recipient of these funds was "gumshoe" Jack Palladino, who later reportedly worked for the Clintons on the Lewinsky and Jones matters. See Excerpt from Michael Isikoff, Uncovering Clinton, attached as Exhibit 12, at 30-33; Michael Isikoff, "Clinton Team Works to Deflect Allegations on Nominee’s Private Life," The Washington Post, July 26, 1992, attached as Exhibit 13; Dick Morris, "Bill’s Secret Police Strike Again," The New York Post, March 17, 1998, attached as Exhibit 6; see also Dick Morris, "Clinton’s Secret Police in Overdrive," The New York Post, April 28, 1998, attached as Exhibit 11; Howard Kurtz, "The Power Couple at Scandal’s Vortex," The Washington Post, February 27, 1998, attached as Exhibit 14.

Meanwhile, also during the 1992 Clinton campaign, Craig Livingstone "graduated" from investigating personal peccadilloes to supervising an effort to disrupt President George Bush’s political campaign. According to his resume, Livingstone was the "Senior Consultant to Counter Event Operations." See Exhibit 10 at 24. What this really meant was that Livingstone was responsible for placing a person in a chicken suit at Bush campaign events. See Livingstone Depo. at 254-56; Exhibit 10 at 24.

However, the Filegate mentality emerges even more graphically after Clinton won the 1992 election. Shortly after their victory, the Clintons’ top advisers met for dinner at a restaurant in Little Rock, Arkansas:

See Elisabeth Bumiller, "The Brothers Emanuel," The New York Times, June 15, 1997, attached as Exhibit 15. Here was the Filegate mentality in a nutshell. Perceived political enemies were to be destroyed, or made "dead." Mandy Grunwald, a friend and advisor of Defendant Clinton who later helped to conjure up the "right wing conspiracy" defense to all of the Clinton scandals, "couldn’t remember" if she engaged in the death chant, but confirmed the events as reported by The New York Times in her deposition in this case. See Grunwald Depo. at 358-65.

The Filegate mentality carried over into the Clinton Administration with the placement of key political operatives in sensitive positions. See Filegate Flowchart, attached as Exhibit 16. Livingstone was made Director of OPS by Mrs. Clinton, a strategic position from which he could obtain confidential FBI and Internal Revenue Service information, among other confidential information, on former Reagan and Bush administrations staffers, holdover employees, and other appointees or employees who got in the way or were otherwise mistrusted. To assist him, Livingstone then brought in Marceca, his old buddy and "hatchetman" from the Hart campaign.

Not coincidentally, William H. Kennedy, III, a friend and colleague of Mrs. Clinton from the Rose Law Firm, where he had served as managing partner, was made Associate White House Counsel. From The White House Counsel’s Office, Kennedy would have access to FBI and other confidential information obtained by Livingstone and Marceca, as well as to "raw data" from FBI files that could be obtained by telephone calls and other contacts with key persons in the FBI.

Vince Foster, an intimate friend and confidante of Mrs. Clinton and former partner at the Rose Law Firm, was made Deputy White House Counsel. Bernard Nussbaum, another long-time friend and trusted ally dating back to the Watergate impeachment proceedings, was made White House Counsel. From these respective perches, Livingstone, Kennedy, Foster and Nussbaum would have access to FBI files and other confidential information as needed to further the President and Mrs. Clintons’ agenda. In effect, Mrs. Clinton brought her own law firm to The White House for her and her husband’s partisan political purposes.

Mrs. Clinton thus succeeded in placing these four (4) individuals, Livingstone, Kennedy, Foster and Nussbaum, in strategic positions in The White House. True to their past, these and other allies close to and inside the Clinton White House, including the President himself, would cause scandal after scandal. Although they may have different names -- "Travelgate" (which involves the malicious prosecution of Filegate victim Billy Dale), "Filegate" (the improper gathering of FBI file information on hundreds of staffers from the Reagan and Bush administrations), "Ushergate" (the misuse of the FBI background investigatory process against "disloyal" staffers such as Chris Emery) and "Sexgate" (the effort to destroy Kathleen Willey and Linda Tripp with the illegal release of Privacy Act-protected materials), not to mention the repeated efforts to cover-up these and other scandals -- the Filegate mentality runs throughout them like a common thread. What follows is a detailed exposition of how the Clintons’ defense of their various scandals -- which is based on threats, intimidation, smear tactics and sometimes even blackmail and the use of law enforcement agencies (such as the indictments of Linda Tripp and Nolanda Hill ) -- relate to both the core issues of this case and the issues of substitution and class certification now before the Court.

Although the Clinton White House and Clinton Justice Department have disingenuously claimed throughout this litigation that the Privacy Act does not apply to them, the Clinton White House’s own internal documents, and its own employees, admit otherwise. A June 30, 1993 internal White House memorandum to John D. Podesta, which apparently accompanied the personnel files of the seven (7) White House Travel Office employees fired by Mrs. Clinton, specifically states:

See June 30, 1993 Memorandum to John D. Podesta, attached as Exhibit 17 (emphasis added).

During his deposition in this matter, Assistant White House Counsel William H. Kennedy also admitted that the Privacy Act applied :

* * *

See Kennedy Depo. at 73-74; see also id. at 76-78.

Mari Anderson, an assistant to Livingstone in OPS (the office that actually requested and maintained the FBI background summaries of Plaintiffs and other members of the class), also admitted at her deposition in this matter, without qualification, that she and everyone in OPS knew the Privacy Act applied to their activities:

See Anderson Depo. at 279-81; see also id. at 277-78, 282-83.

Moreover, Terry W. Good, head of The White House Office of Records Management ("ORM"), which later stored at least some of the FBI background summaries at issue, testified at his deposition in this matter that both The White House Counsel’s Office and the Clinton Justice Department advised ORM that the Privacy Act applied to records of the President’s and Mrs. Clinton’s Health Care Task Force. Good Depo. at 55-57; 386-387.

Clearly, the Clinton White House has long understood and operated under the assumption that the Privacy Act applied to it, and the arguments the Clinton Administration and its Justice Department made to the contrary to this Court in trying vainly to dismiss this case, which caused both Plaintiffs and the Court to expend substantial time and resources, were simply fraudulent.

One of the functions of OPS was to maintain security files on persons requiring routine access to The White House complex. See Declaration of Nancy A. Gemmell, attached as Exhibit 18, at para. 6. The security files maintained by OPS include summary reports provided by the FBI of full field background investigations that the FBI conducts of persons requiring routine access to The White House complex. Id. at para. 9. Those reports are used to determine suitability for White House access. Id.

However, the Presidential Records Act, 44 U.S.C. § 2201 et seq., provides for the removal of most records from The White House at the conclusion of each administration. Id. at para. 8. Among the many records routinely removed from The White House pursuant to the Presidential Records Act are the security files maintained by the OPS, including the files of those persons who require continuing access to The White House complex in the new administration. Id. Thus, when there is a change of administrations, it is necessary to recreate the OPS files on persons who require continuing access to The White House complex. Id. at paras. 8 and 10. This task is known within OPS as the "Update Project." Id. at para. 6. It involves requesting from the FBI copies of summary reports previously provided to OPS concerning "holdover" employees and others. Id. OPS historically accomplishes this task after each change of administration by filling out pre-printed forms, under the name of the Counsel to the President, which request copies of "previous reports" on the individuals named in the forms. Id. at para. 10.

The recreation of the files on persons requiring continuing access to The White House complex is necessary for two reasons. Id. at para. 11. First, all persons with routine access to The White House must be reinvestigated every five (5) years. Id. It is thus necessary to recreate the files on holdover employees from the prior administration to determine when those persons’ reinvestigations are due. Id. Second, after each change of administration, the summary reports obtained from the FBI on holdover employees from the prior administration are routinely reviewed, if time and work pressures permit, to determine whether the reports contain any information potentially affecting the employee’s suitability for White House access that should be brought to the attention of the new administration through The White House Counsel’s Office. Id.

In order to assist The White House in making appointments and in determining who should be granted access to The White House, the FBI established a White House liaison office in the Old Executive Office Building. The FBI details special agents to work in this office, from which they conduct interviews of White House appointees and employees in order to determine their suitability for work in The White House.

One of these agents was M. Dennis Sculimbrene. Special Agent Sculimbrene was first detailed to The White House in 1980. See Declaration of M. Dennis Sculimbrene, attached as Exhibit 19, at para. 1. He thus had worked in The White House during each of the Carter, Reagan, Bush and Clinton administrations. Id. Indeed, Sculimbrene was the senior FBI Special Agent in The White House when the Clinton Administration commenced. Id.

As Special Agent Sculimbrene sets forth in his sworn declaration, a long-standing policy required FBI agents detailed to The White House to interact with OPS personnel routinely. Id. at para. 8. Beginning with the Reagan Administration, Special Agent Sculimbrene also had a mail box in OPS, where he would receive copies of requests for FBI background investigation summaries sought by OPS. Id. Notes of Anthony Marceca, the Department of Defense detailee who requested and obtained the FBI background summaries of Plaintiffs and the other members of the putative class, confirm this practice, which served as a backstop to avoid unnecessary background requests on persons who no longer required access to The White House. See Marceca Notes, attached as Exhibit 20.

Beginning in May 1993, however, Special Agent Sculimbrene was told to avoid liaison activity with OPS and was no longer provided with copies of background requests. See Declaration of M. Dennis Sculimbrene, attached as Exhibit 19, at para. 8. His mail box in OPS no longer used. Id. The practice of providing Special Agent Sculimbrene with copies of background requests was resumed in late Fall or early Winter 1994, after in excess of 900 FBI background summaries on Plaintiffs and other former Reagan and Bush Administration appointees, employees and others had already been obtained. Id. Thus, the one person who could have prevented Filegate -- and a potential eyewitness -- was, not coincidentally, himself denied access to key information about OPS’s activities and to OPS itself during this crucial time period. Id. Clearly, this important fact raises a strong adverse evidentiary inference, if it is not powerful direct evidence itself, that FBI background summaries were obtained for an improper political purpose. As the Court has already ruled, obtaining FBI files for partisan political purposes cannot be within the scope of any official duties or responsibilities.

As First Lady, Mrs. Clinton had no legal authority over White House personnel (except in her immediate office), White House security, or even over The White House Counsel’s Office. Nonetheless, the evidence uncovered by Plaintiffs in this matter demonstrates that Mrs. Clinton is no ordinary First Lady. Ms. Linda Tripp has testified that "[s]he was every bit as Presidential as he was, and we treated her that way." See Tripp Depo. at 359 (emphasis added). Mrs. Clinton made key personnel decisions concerning The White House Counsel’s Office and OPS, among other offices, directed the activities of the persons she had hired, and otherwise thrust herself into the official workings of The White House. Thus, when any of the actors involved in Filegate were acting at the direction of Mrs. Clinton instead of furthering the interests of the United States, they were, ipso facto, operating outside the scope of their employment, because Mrs. Clinton had no lawful authority to direct their conduct.

This is confirmed by Association of Am. Physicians & Surgeons v. Clinton, 813 F. Supp. 82, 87 (D.D.C. 1993), in which this Court ruled that Mrs. Clinton did not qualify as an "officer" or "employee" of the federal government as defined by 5 U.S.C. §§ 2104 & 2105, and hence the Health Care Task Force that she chaired was not exempt from the open meetings requirement of § 10 of the Federal Advisory Committee Act, 5 U.S.C.App. 2, §§1-15.

On appeal, the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") held that Mrs. Clinton is a de facto officer or employee of the federal government, but only for the limited purpose of the Health Care Task Force. Association of Am. Physicians & Surgeons v. Clinton, 997 F. 2d 898 (D.C. Cir. 1993). The D.C. Circuit predicated its decision on the fact that "[t]he President named his wife, Hillary Rodham Clinton, as Chairman of the Task Force," along with various Cabinet Secretaries and White House advisors, and "charged the body with the task of ‘listen[ing] to all parties’ and then ‘prepar[ing] health care reform legislation to be submitted to Congress within 100 days of our taking office.’" Id. at 901-02 (citing 29 Weekly Comp.Pres.Doc. 96 (Feb. 1, 1993).

It is this explicit grant of authority by the President to Mrs. Clinton that makes Association of Am. Physicians & Surgeons readily distinguishable from Mrs. Clinton’s actions in Filegate. Whereas her chairmanship of the Health Care Task Force was under authority of an Executive Order, here Mrs. Clinton has acted under no basis of authority whatsoever, but has operated covertly as the secret and unauthorized head or "managing senior partner" of The White House Counsel’s Office. Indeed, the Court’s original analysis of her legal standing in Association of Am. Physician & Surgeons -- that she is not an officer or employee of the federal government -- should be given full force once more. She must, respectfully, be regarded as an outsider, operating illegally within The White House.

Nonetheless, Mrs. Clinton "packed" The White House Counsel’s office with loyalists. She "recommended" Bernard Nussbaum, her former colleague from the Nixon impeachment proceedings, to be White House Counsel. See McLarty Depo. at 245; Nusbaum Depo. at 187. She was instrumental in the hiring of Vincent Foster, her intimate friend and confidante and former partner at the Rose Law Firm, as Deputy White House Counsel. See Nussbaum Depo. at 108, 112-13. She strongly recommended William Kennedy, another of her former partners and the managing partner of the Rose Law Firm, as Associate White House Counsel. See Nussbaum Depo. at 130-31. Mrs. Clinton was also responsible for the hiring of Joel Klein as Deputy White House Counsel after Vincent Foster’s death. See Tripp Depo. at 817-18.

Once Mrs. Clinton had her key people in place in The White House Counsel’s Office, she had substantial input into its operations. She "ruled the school," as Linda Tripp, who worked in The White House Counsel’s Office, put it. See Tripp Depo. at 359. It was therefore no accident that Mrs. Clinton’s West Wing office was "directly adjacent" to The White House Counsel’s Office. See Tripp Depo. at 354. Her "interaction and visiting and phone calling between Vince [Foster]’s office and her’s was routine." "It was regular. It was constant." See Tripp Depo. at 354. Mrs. Clinton also had interacted frequently with Kennedy. See Tripp Depo. at 778-82; see also Waudby Depo. at 257-58. While the President had little, if any interaction with Nussbaum or Foster, "the interaction was all lateral to Hillary’s office, sidesways I always thought of it, because that’s where the interaction was." See Tripp Depo. at 361; see also Tripp Depo. at 360-61.

In addition to hiring personnel, Mrs. Clinton also took it upon herself to be involved in firing decisions. Both Nussbaum and Kennedy were ultimately fired from The White House Counsel’s Office. Thomas "Mack" McLarty, who was White House Chief of Staff during Filegate, testified that Mrs. Clinton’s views about whether Nussbaum and Kennedy should be fired "were important to be taken into consideration. . . . " See McLarty Depo. at 331- 33; see also Nussbaum Depo. at 219-20.

Mrs. Clinton was involved in, if not directly responsible for, The White House Travel Office firings, which, in turn, lead to the discovery of the Filegate scandal. Her Chief of Staff, Maggie Williams, attended a key meeting in Vince Foster’s office, along with Foster, Kennedy, David Watkins, Catherine Cornelius and Hollywood megaproducer and multimillionaire Harry Thomason, before the firings, who also had no "business" being involved in White House affairs. See Tripp Depo. at 32-33, 35-51, 58-59, 61-62. Tripp’s testimony about this meeting is confirmed by Bernard Nussbaum, Betsy Pond and Deborah Gorham, who worked with her in The White House Counsel’s Office suite. Nussbaum testified that Vince Foster held meetings in his office about the Travel Office, and that it "may well be true" that on at least one of those occasions, David Watkins, Harry Thomason and Catherine Cornelius were present. See Nussbaum Depo. at 226-27. Nussbaum further testified that this "probably happened." Id. Betsy Pond confirms seeing Maggie Williams, David Watkins and Harry Thomason in the office suite, as well as the fact that Foster held meetings in his office behind closed doors. See Pond Depo. at 286-92. Deborah Gorham recalls Catherine Cornelius and Harry Thomason in Vince Foster’s office for a meeting. See Gorham Depo. at 253. After the meeting, Tripp and Gorham went into Foster’s office to clean up, whereupon Tripp saw files on Billy Dale and others laying on Foster’s desk. See Tripp Depo. at 41-47, 58-59, 61-62. These same files would later be identified to Tripp as being FBI files. Id.

Importantly, Linda Tripp also described an "official White House letterhead memorandum" from Mrs. Clinton to Foster and Kennedy ordering that the Travel Office workers be fired:

See Tripp Depo. at 633; see also Tripp Depo. at 772-73, 888-91. McLarty testified that he had conversations with Mrs. Clinton about The White House Travel Office before the firings. See McLarty Depo. at 52-53; 98. A memorandum by a former White House official lays the responsibility for the firings directly at Mrs. Clinton’s feet. See Memorandum from David Watkins as reproduced in "Investigation of The White House Travel Office Firings and Related Matters," Fifteenth Report by the Committee on Government Reform and Oversight, U.S. House of Representatives, 104th Congress, Second Session, September 26, 1996, attached as Exhibit 23. While carefully avoiding any reference to Mrs. Clinton’s having ordered the Travel Office firings, McLarty’s testimony implied no less. He testified that Mrs. Clinton was aware of the allegations involving the Travel Office, wanted the matter looked into "in a timely way," "took it seriously, was concerned about it and wanted the matter to be taken seriously." Id. at 98-99. This "hands-on" conduct is not the "ordinary" activity of a First Lady.

Without legal basis, Mrs. Clinton also injected herself into security issues. FBI Special Agent Gary Aldrich, who was detailed to the FBI’s White House Liaison Office to assist with background investigations on appointees, employees and other persons requiring access to The White House, was told by Livingstone that he had to speak with Mrs. Clinton to address security concerns he had raised regarding White House access. See Declaration of Gary W. Aldrich, attached as Exhibit 24, at para. 3. Livingstone himself largely confirmed this conversation at his deposition in this case. Livingstone Depo. at 445-53. Because the stated reason for obtaining the FBI files of "holdover" employees was to reconstruct OPS’ access records, Mrs. Clinton’s thrusting herself into security issues bears directly on Filegate.

So it should be no surprise that substantial, credible evidence ties Mrs. Clinton to the selection of Livingstone as Director of OPS. During the course of conducting a background investigation on Livingstone in March 1993 -- long before the Filegate scandal would erupt -- former FBI Special Agent M. Dennis Sculimbrene interviewed Livingstone’s supervisors in The White House Counsel’s Office, including Nussbaum and Kennedy. See Declaration of M. Dennis Sculimbrene, attached as Exhibit 19, at para. 2. As documented by a contemporaneous "insert" memorandum prepared by Agent Sculimbrene shortly after his interview with Nussbaum, Livingstone "had come highly recommended to him by HILLARY CLINTON." Id.; Sculimbrene Insert, attached as Exhibit 27. Nussbaum added that Mrs. Clinton ‘‘has known his mother for a longer period of time.’’ Id. This document was produced to Plaintiffs by the FBI. Moreover, as documented in a January 11, 1996 memo Agent Sculimbrene submitted to his supervisor, Supervisory Special Agent Brad Wambach, states, "LIVINGSTONE is a political appointee. His mother and MRS. CLINTON are personal friends." See January 11, 1996 Memorandum to SSA A-1, Brad Wambach from SA M. Dennis Sculimbrene, attached as Exhibit 27.

After Filegate broke, Agent Sculimbrene testified before the House Committee that, while interviewing Livingstone in March 1993 for his background investigation, Livingstone himself linked his hiring to Mrs. Clinton. See Declaration of M. Dennis Sculimbrene, attached as Exhibit 19, at para. 4. Shortly after the background investigation, Kennedy told Agent Sculimbrene that he was "stuck" with Livingstone, from which Agent Sculimbrene understood that Mrs. Clinton had been responsible for Livingstone’s hiring. Id. at para. 5.

Likewise, Special Agent Aldrich recalls a conversation with Kennedy about who had hired Livingstone. See Declaration of Gary W. Aldrich, attached as Exhibit 24 at para. 4. During this conversation, Kennedy asked Special Agent Aldrich what type of person should be the head of OPS. Id. Special Agent Aldrich replied that it should be "somebody squeaky clean, meticulous, careful, discreet, mature, someone with a depth of understanding of security issues." Id. Kennedy later told Special Agent Aldrich, "It doesn’t matter anyway; it’s a done deal. Hillary wants him [Livingstone] for that slot." Id. Kennedy’s claim that he now doesn’t know how Livingstone came to be hired as Director of OPS is simply incredible. See Kennedy Depo. at 206.

Livingstone seemed to have told many people about his connection and allegiance to Mrs. Clinton. He told Linda Tripp, who worked in The White House Counsel’s Office with Nussbaum, Foster, Kennedy and Livingstone, that he had been hired by Mrs. Clinton. See Tripp. Depo. at 288-89.

Livingstone, in turn, was responsible for having Anthony Marceca, an investigator with the U.S. Department of Defense, detailed to OPS. Importantly, Marceca and Livingstone shared a long history of working together as political "dirty tricks" operatives. It was Marceca, acting under Livingstone’s supervision, who subsequently requested and obtained in excess of 900 FBI background investigation summaries on former Reagan and Bush White House appointees, employees and others, including such notable persons as Former Secretary of State James A. Baker and former Press Secretary Marlin Fitzwater, in addition to Plaintiffs and countless others. In addition to being Marceca’s supervisor at OPS, Livingstone reviewed each file Marceca obtained. See Excerpt from Anderson Senate Depo., attached as Exhibit 28, at 110.

Thus, of the major actors in Filegate -- Nussbaum, Kennedy, Livingstone and Marceca -- Mrs. Clinton is inextricably tied to all of them. She had substantial input into, if not control over The White House Counsel’s Office, of which OPS is a part. Despite repeated efforts to cover-up her key role, she is also responsible for The White House Travel Office firings, which subsequently gave rise to the uncovering of the Filegate scandal, and to security issues, including issues about White House access, that lie at the heart of Filegate. Because Mrs. Clinton had no legal authority to inject herself into these areas, Nussbaum, Kennedy, Livingstone and Marceca were all acting outside the scope of their employment when they acted to further the partisan, political interests of Mrs. Clinton instead of the interests of the United States.

Nussbaum was a long-time friend of Mrs. Clinton dating back to the days of their work together on House Judiciary Committee’s Watergate impeachment panel. See Nussbaum Depo. at 175-77, 184-86. Nussbaum was also a trusted advisor to the 1992 presidential campaign. Id. at 185-86. He and Peter Edelman then jointly headed the Justice Department transition team for the new Clinton Administration. Id. at 186. Nussbaum was then asked to serve in the Clinton White House as Counsel to the President. Id. Nussbaum admits that Mrs. Clinton recommended him for the position and that "she was the most important one obviously . . . quite important in my becoming White House Counsel." Id. at 187.

At his deposition in this matter, Nussbaum testified that the handling of FBI files was an important, sensitive function. Id. at 234. However, Nussbaum also testified that he intentionally was not a "hands on" manager with respect to the Clinton White House’s requisition of FBI files:

* * *

Id. at 233-34, 236 (emphasis added).

Nussbaum made it readily apparent that he left the handling of FBI files to Foster and Kennedy:

* * *

Id. at 234-45. In fact, it was Foster and Kennedy who told Nussbaum that Livingstone would continue to act as Director of OPS after the early days of the new administration. Id. at 86-89. Nussbaum apparently did not even know Livingstone. According to Nussbaum’s own testimony, he only knew Livingstone "to a limited extent, to a lesser extent." Id. at 236. According to Linda Tripp, Nussbaum repeatedly called Livingstone by the wrong name. See Tripp Depo. at 260-61 ("Bernie always called him Cliff. . . . It annoyed Craig [Livingstone] to no end"). Nussbaum could not recall ever meeting or knowing of Anthony Marceca during his entire time in The White House. See Nussbaum Depo. at 153.

Moreover, at his deposition, Nussbaum claimed to be almost completely unfamiliar with the process by which FBI files were ordered:

A: No. That was a -- no, I never reviewed material.

Q: But you never knew what they were?

Id. at 266-67.

Nussbaum did not even want to know that the requisition forms for FBI files bore his name. Id. at 31. Nor did he want to know who was actually handling the FBI files when they arrived in The White House:

Id. at 390-91. Nussbaum apparently did not want to know that interns were also handling FBI files in OPS. Id. at 392-93. And when confronted with the testimony of Mari Anderson, one of Livingstone’s assistants, which directly contradicted the Clinton White House’s explanations for Filegate, Nussbaum casually dismissed it by saying, "I don’t know who she is." Id. at 384.

The House Committee, in reviewing Nussbaum’s role in the Clinton White House’s unlawful acquisition and misuse of FBI files, concluded, "The confidentiality of all of the FBI background files was jeopardized once the Counsel to the President, Bernard Nussbaum, denounced any responsibility for this unpleasant yet necessary work." See Exhibit 10 at 33. Plaintiffs respectfully submit that this complete lack of any meaningful supervision was intentional. In order to further its unlawful scheme to misuse information in FBI files for partisan political purposes, the Clinton White House turned to Nussbaum, a trusted friend, to fill the White House Counsel’s Office slot but not get in the way. The obvious reason for this was to allow his functional superior, Mrs. Clinton, to call the shots in the White House Counsel’s Office and unlawfully obtain access to FBI files. See, e.g., Tripp Depo. at 354, 359-61, 778-82. By his purposeful and complete failure to exercise any supervisory responsibility, Nussbaum thus enabled the Clinton White House to further its unlawful scheme and, as a result, acted outside the scope of his duties and responsibilities. In short, either by design or by recklessness, Nussbaum ceded authority to Mrs. Clinton and her "yes men" such as Kennedy, Foster, Livingstone and Marceca, in order to maintain his own "plausible deniability" if the scheme were ever exposed.

Livingstone’s selection as Director of OPS provides further evidence that Filegate was not an "innocent bureaucratic snafu," but was an intentional misuse of confidential information in FBI files for partisan political purposes far outside any official duties and responsibilities. Indeed, even Bill Clinton did not think this excuse would be acceptable. In his recent book Shadow, Bob Woodward reports that even President Clinton dismissed the idea of characterizing Filegate as a "bureaucratic snafu." Woodward writes, "They discussed what the president’s public response might be. Because of the uproar, he was going to have to say something. Stephanopoulos had already sought to frame it as a bureaucratic blunder. The president was scornful of that approach." See Excerpt from Bob Woodward, Shadow, attached as Exhibit 29 at 327. Not only did Livingstone lack any security credentials, but his background as a political "dirty tricks" operative with a history of gathering "dirt" on persons to further political goals was entirely inappropriate for someone who would be making sensitive security decisions and reviewing highly confidential background investigations. See Exhibit 10 at 38. As the House Report finds:

See Exhibit 10 at 10-11. Renowned author Joyce Milton reached a similar conclusion in her recently-published biography of Mrs. Clinton:

Joyce Milton, The First Partner, at 321-22.

At a minimum, Livingstone’s unusual placement in so sensitive a position raises a strong evidentiary inference that he was present in The White House for an illegal, political purpose. Livingstone, after all, continued to advance work for the Clintons’ travel even while he was supposed to be running OPS. Among the trips he arranged was the Clintons’ return to Arkansas for the funeral of Virginia Kelley, the President’s mother, when she died of cancer in January 1994. See Exhibit 10 at 28. Livingstone was also heavily involved in advance work for the President’s trip to Normandy, France, to commemorate the fiftieth anniversary of the Allied invasions of Europe during World War II. Id. After Deputy White House Counsel Vincent Foster was found dead in Fort Marcy Park, Virginia, it was Livingstone who went to the morgue to identify his body. See Tripp Depo. at 303. In fact an abundance of evidence supports the conclusion that Livingstone was Mrs. Clinton’s "errand boy." See Collective Exhibit 30.

Livingstone’s own background contained ample reasons, to put it mildly, for questioning his placement, if not disqualifying him from heading up OPS or even having a White House pass. In addition to his previous political "dirty tricks" operations, [ ]

While working on the Presidential Inaugural Committee ("PIC") after the 1992 election, Livingstone was charged with securing the PIC computer network against fraud and theft. See Exhibit 10 at 25. According to theft reports by the Federal Protective Service, more than $174,000 worth of computers, video cassette records, radios, cellular telephones, pagers and other electronic gear disappeared from PIC’s headquarters. Id.

After he was hired as Director of OPS, Livingstone gave inconsistent information to the FBI during course of a background investigation to determine whether he should be granted a permanent White House access pass. Livingstone [ ]

Also intentionally "overlooked" by the Clinton White House was [ ] See Livingstone Depo. at 223-28.

That Livingstone, a political "lowlife," was grossly unfit for a sensitive position was further confirmed by Presidential Cabinet Secretary Christine Varney, who testified before the U.S. House of Representatives Government Reform and Oversight Committee that Livingstone was being considered for a low-level, administrative position at OPS, not for the directorship. See Deposition of Christine Varney before the Committee on Government Reform and Oversight, United States House of Representatives, attached as Exhibit 31, at 13-14. Associate White House Counsel Cheryl Mills similarly testified that Livingstone was being considered for a low-level, administrative position. Deposition of Cheryl Mills before the Committee on Government Reform and Oversight, United States House of Representatives, attached as Exhibit 16, at 559; 560-63.

After Filegate had occurred, but before it had become publicly known, The White House itself was apparently concerned about the public’s perception of Livingstone. A December 1994 internal "task list" created by Jane Sherburne, Special Counsel to the President, enumerated no fewer than thirty-nine (39) areas of scandal vulnerability. See House Travel Office Report, attached as Exhibit 32, at 759-71. The list began with "Foster document handling" -- of which one subheading was "security/Livingstone issues." It went on to cover such items as "Travel Office," "Use of White House resources for response efforts" and "White House operations (drugs, passes, helicopters)," among others. The problem described as "security/Livingstone issues" is especially revealing because it showed that The White House even at that point had a problem with Livingstone.¹⁸

Livingstone was thus a far cry from what even Democratic Senator Dennis DeConcini (D-NM), writing on behalf of the Senate Committee on Appropriations, suggested during a 1994 review of White House procedures regarding the issuance of White House access passes and other security-related functions. After noting that "certain operational inefficiencies during the early stages of [the Clinton] Administration . . . contributed to the severe backlog of the issuance of permanent White House passes for White House employees," DeConcinci recommended that the functions performed by Livingstone be assigned to a full-time, non-partisan security professional:

See August 11, 1994 letter to President Clinton, attached as Exhibit 34 (emphasis added). Senator DeConcini’s recommendations, which were ignored by the Clinton White House, only serve to further demonstrate that Livingstone, a political "dirty tricks" operative with no security credentials, was entirely unsuited to be Director of OPS. Why was he left as head of OPS in the face of serious questions about his background? Why did he continue in this position over the recommendation of a Democratic Senator and in the face of public controversies about the failures of the personnel security process for which Livingstone was responsible? That Livingstone was a political "low-life," [],¹⁹ but was given and allowed to maintain such a sensitive position raises a further, strong, evidentiary inference, if it is not direct evidence itself, that Mrs. Clinton placed and kept him there to gather information from FBI background investigation files on perceived and potential adversaries.

While Plaintiffs took Marceca’s deposition in this matter on June 9, 1999, rather than answer Plaintiffs’ questions, Marceca tellingly invoked the Fifth Amendment privilege against self incrimination. While the Court should thus draw strong adverse factual inferences from Marceca’s refusal to answer see, e.g., Baxter v. Palmigiano, 425 U.S. 308, 318-20 (1976), Plaintiffs’s efforts to obtain evidence directly from Marceca himself were hindered. Nonetheless, Marceca was deposed by the House Committee, and the House Report collects and synthesizes some very revealing information about both Livingstone and Marceca and their backgrounds. Such findings are entirely appropriate for the Court to rely on. See Hobson, 556 F. Supp. at 1181; see also Beech Aircraft Corp., 488 U.S. at 170.

As set forth in the House Report, Marceca met Livingstone while they were both doing advance work for the Gary Hart presidential campaign in 1984. See Exhibit 10 at 37. The two became friends and discovered that they worked well together. Id. at 37-38. Livingstone and Marceca thus formed an "advance team," where Livingstone would handle the public relations end of advance work and Marceca would handle the logistics end. Id. at 38. During the Hart campaign, Marceca advocated using "dirt" gathered by Livingstone on political opponents and other persons to advance Senator Hart’s campaign. Id. However, after Marceca took $200 from the campaign’s petty cash, he was barred from the campaign. See Exhibit 10 at 38.

The team of Livingstone and Marceca worked on several other campaigns. Id. After the Hart campaign in 1984, they both moved on to the Mondale campaign. Id. According to Marceca, the management of the Mondale campaign knew both him and Livingstone and kept them together as a team. Id. In 1986 the two were asked to work advance for the Hart for President announcement in Colorado. Id. Both Marceca and Livingstone accepted the invitation and worked on advance with the campaign until Hart dropped out of the race. Id. In 1987, Livingstone asked Marceca to work with him on Al Gore’s announcement. See Exhibit 10 at 38. Marceca agreed and worked several advance trips with Livingstone for the Gore Campaign. Id.

After the Clinton victory in 1992, Livingstone contacted Marceca and was instrumental in Marceca’s joining the Presidential Inaugural Committee, where the two worked together closely. Id. at 38-39. When Livingstone became director of OPS, he was then instrumental in The White House’s requesting that Marceca be detailed from the Department of Defense, where he was working as an investigator for the U.S. Army Criminal Investigative Division, to The White House. Id. at 36, 39-40. In a letter from Assistant White House Counsel William H. Kennedy, III to Secretary of Defense Les Aspin requesting that Marceca be detailed to The White House, Kennedy wrote that he had "learned of Agent Marceca’s unique investigative abilities and background and would greatly appreciate his full-time assistance here." Id. at 36.

Marceca’s detail was ultimately approved on August 5, 1993. Id. at 40. On August 9, 1993, Marceca went to The White House and received an access pass granting him access to The White House. Id. However, Livingstone had placed Marceca on The White House access list as early as March 24, 1993.²⁰ Id. at 41. Because Livingstone had placed Marceca on the access list in March 1993, Marceca could thus enter and exit The White House, without appointment, at any time throughout the four (4) month period before his detail began and without there being any record of it. Id.

Nancy A. Gemmell had worked in OPS since 1981 and was knowledgeable about the duties and procedures of that office. See Exhibit 18 at paras. 3-4. Ms. Gemmell was due to retire about the time the Clinton Administration took over. Id. at para. 4. However, Livingstone asked Ms. Gemmell to postpone her retirement to ensure that the office was functioning properly and that new personnel were properly trained before she left. Id.

Ms. Gemmell began the Update Project herself. Id. at para. 13. She requested a customized list of all active pass holders from the Secret Service in order to identify those persons requiring routine access to The White House. Id.; see also id. at para. 20. The list Ms. Gemmell received from the Secret Service consisted only of active pass holders because she had only requested an active passholder list. Id. Moreover, the list she received from the Secret Service did not state that any of the persons included on the list were inactive passholders. Id.

Ms. Gemmell did not complete the Update Project, but retired during its early stages. However, before leaving OPS, she fully explained the proper procedures for conducting the Update Project to Ms. Anderson. Id. at paras. 12 and 26. At her deposition in this case, Ms. Anderson testified that Ms. Gemmell was "considered the expert in the office on the rules and procedures for conducting the [U]pdate [P]roject" and that she relied on Ms. Gemmell’s "knowledge as to what needed to be done and how it should be done in the course of the [U]pdate [P]roject." See Anderson Depo. at 80. Ms. Anderson also testified that she did not understand Ms. Gemmell to have intended the Update Project be conducted "in any fashion differently than it had been conducted in prior administrations." Id. at 81. Rather, she understood Ms. Gemmell "intended to conduct the project in the same fashion that it had been conducted in prior administrations." Id.

Upon learning that Marceca would be detailed to OPS from the Defense Department to assist with office functions, Ms. Gemmell also met with Marceca for several hours. See Exhibit 18 at para. 27. In addition to discussing generally the many functions and procedures of the office with Marceca, Ms. Gemmell specifically mentioned the Update Project to him. Id. at paras. 27 and 28. As set forth in the House Report, Marceca admits that he met Ms. Gemmell, Livingstone and Lisa Wetzl, one of Livingstone’s assistants. See Exhibit 10 at 42. Marceca states that at the meeting, Ms. Gemmell explained to him the procedures to follow for the duties he would be performing while working in OPS. Id. Marceca took notes during the meeting of what he was told. Id. Marceca stated that Ms. Gemmell showed him the procedures he should follow in completing the Update Project, as well as other duties he was expected to perform.²¹ Id. Ms. Gemmell left behind a written sheet of instructions that Marceca would be able to refer to after she left. Id. In addition, Ms. Gemmell advised other OPS staff, including Ms. Anderson, of the procedure to be followed in performing the Update Project. See Exhibit 18 at para. 28. In fact, Ms. Anderson testified at her deposition in this matter that she was not aware of Ms. Gemmell giving "any instructions to conduct the update project in any fashion differently than it had been conducted in prior administrations." See Anderson Depo. at 82-83.

Importantly, before the Update Project had begun, Livingstone had written a memorandum to Kennedy explaining the process and stating, "Once the initial rush subsides, we will begin to request copies of files from the FBI on carryovers. This will be our first glance into background information of their employees." See Defendants’ Third Supplemental Response to Plaintiffs’ First Request for Production of Documents to Def. EOP, attached as Exhibit 35, at 11. In describing this memorandum to Senator Orrin Hatch of the Senate Judiciary Committee, Livingstone would later testify:

Id. This is not credible. A more accurate explanation is that the use of the phrase "their employees" reconfirms the Filegate mentality and demonstrates that FBI files were being obtained for improper, partisan political purposes.

Contrary to Ms. Gemmell’s express instructions to obtain a Secret Service list of only active passholders, Marceca apparently obtained a master list of both active and inactive passholders from the Secret Service when he took over the Update Project.²² Indeed, this was the conclusion reached by the House Committee, which found:

See Exhibit 10 at 98. Marceca testified at a deposition before the House Government Reform and Oversight Committee that the list he requested -- which has since conveniently disappeared -- had "A" and "I" designations on it.²³ See Exhibit 10 Report at 46 and 98. Marceca also testified that he believed "A" stood for "access" and "I" stood for "intern." Secret Service Agent Arnold Cole testified that he briefed Marceca’s supervisor, Livingstone, on the "Active" and "Inactive" list notations:

See Exhibit 10 at 98. Thus, and as the House Report concluded, Marceca’s testimony is simply not credible:

* * *

See Exhibit 10 at 46, 98. The only logical and reasonable conclusion to be drawn is that, using a master list, Marceca deliberately ordered the files of hundreds of individuals identified as "Inactive." See Exhibit 10 at 98.

The Clinton White House has nonetheless insisted that the Secret Service’s list was simply inaccurate. As a result, the Secret Service undertook an exhaustive audit of their electronic White House access pass system, known as the "E-Pass" system, and any lists that may have been provided to The White House. See Exhibit 10 at 96. According to Supervisory Special Agent ("SSA") John Libonati of the Secret Service, "Upon receipt of two lists which total 476 individuals [whose FBI background files The White House obtained improperly]²⁴ the Secret Service set out to determine, if, in fact, we had provided ANY LIST which would have inaccurately reflected any or all of these 476 names as ACTIVE passholders in 1993 or 1993." See Exhibit 10 at 96-97 (emphasis original). According to SSA Libonati, "The audit confirms that from 1984 to July of 1993, 379 of the 476 names on the subject list were made Inactive. We can account for 8 errors . . . ." See Exhibit 10 at 97. In addition:

See Exhibit 10 at 97. Moreover, according to SSA Libonati, the audit showed that in a printout of active passholders as of July 31, 1993, "379 of the 476 names in question do not appear on this list." See Exhibit 10 at 97. Thus, if Marceca had been working off an active passholder list of that date, he could not have ordered FBI background investigation summaries on 379 of the 476 persons whose FBI files were known at the time to have been improperly, because those persons’ names would not have been on any active passholder list.²⁵ In analyzing the results of the Secret Service audit, the House Committee itself found, "The only logical conclusion to the audits conducted, was that no active Secret Service list could have produced the list of names of those whose FBI files were wrongfully requested by The White House." See Exhibit 10 at 100.

Regardless of whether Marceca used a master list of both active and inactive passholders, or an inaccurate list of only active passholders, it was widely known within OPS that FBI files of persons who no longer needed access to The White House were being requested and obtained. According to Anderson, Livingstone’s assistant, "everyone" knew OPS was obtaining files on persons who no longer required access to The White House:

See Anderson Senate Depo. at 102-03; see also id. at 157-61. Anderson specifically stated that Livingstone was aware that FBI files were being obtained on persons who no longer required access to The White House:

See Anderson Senate Depo. at 161 (emphasis added); see also id. at 157 ("No, he did know that we had gotten files on people who were no longer there.").

Anderson also testified that she and others at OPS even "joked" about some prominent Republicans, including James Baker and Marlin Fitzwater, being listed as current pass holders, and requested that they be taken off list. See Anderson Senate Depo. at 150 ("I have a specific memory of marking out James Baker and Marlin Fitzwater, because there was a big joke that those were the only two names I could remember"). In point of fact, Secret Service Agent Jeff Undercoffer testified to the House Committee that, "in August of 1993, we were requested to remove Mr. Baker and Mr. Fitzwater, two other individuals, I can’t recall their names, from the list of active passholders." See Undercoffer House Depo., attached as Exhibit 36, at 14. Agent Undercoffer specifically testified that Baker’s name was removed for the list of active passholders on August 26, 1993. Id. at 15. Nonetheless, Baker’s FBI background summary was obtained by the Clinton White House in December 1993. See Defendants’ Response to Request No. 3, attached as Exhibit 37.

Anderson also confirmed that Livingstone reviewed all FBI files obtained by OPS, even those files on persons who no longer required access to The White House:

See Anderson Senate Depo. at 109-10 (emphasis added). Again, politically active persons such as Livingstone and Marceca would certainly know if they were properly reviewing the FBI file of former Secretary of State James A. Baker. Livingstone did not rule out reviewing Baker’s files. See Livingstone Depo. at 480.

Moreover, Livingstone certainly would have known that it was not proper for him to review the FBI file of Billy Dale or any other fired White House Travel Office worker. Livingstone himself had escorted Dale and his Travel Office colleagues out of The White House on May 19, 1993, the day they were fired, then put Dale and at least some of the others on a "do not admit" list. See Declaration of Billy Ray Dale at paras. 3, 5 and 6. In his declaration, Mr. Dale swears, under oath:

See Declaration of Billy Ray Dale, attached as Exhibit 38 at paras. 5, 6 and 7. According to Special Agent Undercoffer, Dale was listed as inactive on the Secret Service access list as of May 24, 1993, as were his other Travel Office colleagues, including Mr. Barnaby Brasseux. See Undercoffer House Depo. at 9. Nonetheless, Dale’s FBI file was requested by the Clinton White House on December 28, 1993, Brasseux’s file was requested on or about December 16, 1993. See Defendants’ Response to Request No. 3, attached as Exhibit 37.

Desperate to diminish the impact of Anderson’s Senate deposition, the Clinton Justice Department flew her to Washington, D.C. to take her testimony in this case. Anderson was only one of two witnesses called by the Clinton White House and the FBI. However, this effort to salvage their "story" backfired badly.

In her testimony in this case, Anderson verified in all key respects her testimony before the Senate concerning how she, Livingstone, and Marceca knew that there were problems with the list that Marceca was supposed to use to obtain FBI background summaries and other materials for the Update Project. In fact, Anderson supplemented her prior Senate testimony by admitting at her deposition in this case that Livingstone was "shocked" that Republican names were on the active passholder list. Despite this "shock," individuals such as James Baker and Marlin Fitzwater nonetheless had their FBI information requested by Livingstone and Marceca. See Anderson Depo. at 354-58.

In response to obvious coaching by the Clinton Justice Department, Anderson reaffirmed that the list Ms. Gemmell obtained to use in the Update Project would have only included active passholders, i.e. those who were Clinton White House staffers. See Anderson Depo. at 90.

However, Anderson again admitted that, in the Fall 1993, the OPS office "as a whole" knew FBI information had been obtained on employees "who were no longer working there" at The White House. The office staff, including Livingstone and Marceca, knew about the "problem," yet the wrongly-obtained FBI information was not sent back to the FBI. See Anderson Depo. at 269-73.

At her deposition in this case, Anderson tried to backtrack only in a minor way as to whether Marceca was involved in allegedly striking names from the list and joking about high-level Republicans on the list, saying her earlier, detailed description of Marceca’s involvement in these events "may" have been a "mistaken memory." See Anderson Depo. at 356. However, Anderson was quite clear in her Senate testimony -- which was much closer in time to the actual events she was testifying about -- about Marceca’s active involvement in allegedly striking Republican staffers’ names from list. see Anderson Senate Depo. at 150-52. Anderson admitted the obvious point during her deposition in this case that one’s memory generally gets worse "the longer [one is] away from events that have occurred." See Anderson Depo. at 219-20.

During her deposition in this case, Anderson also testified about OPS’ response to the alleged lists of active passholders provided by the Secret Service:

See Anderson at 354-58.

Another OPS employee, Lisa Wetzl, who completed the Update Project after Marceca’s detail ended in the Spring of 1994, testified that in the Fall of 1994 she discovered OPS had obtained files on persons who no longer needed access to The White House. See Wetzl House Depo., attached as Exhibit 39, at 31-33, 50. Wetzl specifically recognized Marlin Fitzwater’s name on a file and told Livingstone about her discovery: "I said, ‘Craig, Tony ordered all these files of previous administration people that we don’t need.’" Id. at 63. Wetzl testified that Livingstone had no reaction to her statement, nor did he instruct her to do anything with the files. Id. at 48-49. Sometime between December 1994 and February 1995, Wetzl boxed up the files and archived them with the Office of Records Management. Id. at 67-68.

Thus, the evidence shows that Livingstone and Marceca knowingly requested FBI background information on individuals who did not require access to The White House. Since the files at issue were not requested for purposes related to White House access, then they must have been requested for another purpose. In this case, any purpose other than "certifying" access is inherently improper. Given Livingstone’s and Marceca’s history of political "dirt-digging," that purpose must have been political espionage.

Not only did OPS improperly obtain and maintain FBI background reports and other FBI materials on former Reagan and Bush Administration appointees, employees and others, but Plaintiffs have obtained compelling evidence that the information in these reports was being misused. Ms. Linda Tripp, a key witness who worked in The White House Counsel’s Office during the relevant time period, actually witnessed White House personnel working with and referencing what she was told were FBI files, and even entering data from them into a computer database.

Specifically, at her deposition, Ms. Tripp testified that she observed "stacks and stacks" of what were later identified to her as being FBI files in William Kennedy’s Office:

* * *

* * *

* * *

Tripp Depo. at 173; 175-76; 179-80. When Plaintiffs questioned Kennedy about whether he had the FBI files of Republicans stacked on his desk, the videotape of his deposition shows Kennedy, who was extremely nervous and fidgety, literally choking before making a weak and nervous denial and trying to mask his culpability by drinking a glass of water to quiet his trembling.²⁸ See Kennedy Depo. at 133-34; Kennedy Videotape, attached as Exhibit 40.

Tripp would later receive confirmation from Kennedy’s secretary, Ms. Betsy Pond, that the files Kennedy was using were, in fact, FBI files:

* * *

See Tripp Depo. at 181, 182-84.

Tripp also testified that White House Counsel’s Office employees did more than simply reference these files. Rather, data from these files was being entered into a computer database:

* * *

See Tripp Depo. at 86-87, 88-90; see also id. at 92.

Ms. Tripp overheard a conversation between Kennedy and Marsha Scott (an long-time friend of the President and a White House official), in which they discussed loading data from FBI files into a computer system, at the direction of Mrs. Clinton, to share with the Democratic National Committee:

* * *

Tripp Depo. at 141-45; 163-64 (emphasis added).

Apparently in accordance with these instructions, Ms. Tripp even saw Kennedy’s secretary, Betsy Pond, entering data from the files into a computer:

Tripp Depo. at 93-95.

In point of fact, according to Kennedy’s ex-wife, Leslie Gail Kennedy, Kennedy himself spent "hours reviewing information in the files and making entries into a database he maintained on his laptop computer."³⁰ See Declaration of Christopher J. Farrell, attached as Exhibit 41, at para. 2. Mrs. Kennedy stated that the database her husband created was intended to make FBI file information accessible to the Clinton Administration. Id. at 3. When Mrs. Kennedy was asked whether these files included files of Reagan and Bush administration staffers, she responded by asking rhetorically, "Who would benefit from having this information available?" Id. She then added, "Why would [my] husband bother to review files of Democrats and make entries on his laptop -- especially since the files of Democrats would be routinely available in his White House office?" Id. Mrs. Kennedy also intimated that Mrs. Clinton had ordered the misuse of Republicans’ FBI files because she had come to Washington with an agenda and anticipated resistance to her agenda from many people. Id. Clearly, and as the Court has already held, any such misuse of FBI files cannot have been within the scope of anyone’s employment. July 12, 1997 Memorandum Opinion at 18.

Even the removal of FBI materials by Kennedy from The White House violated not only the Privacy Act, but also by analogy or otherwise, various other federal statutes, including but not limited to 18 U.S.C. § 2071, 18 U.S.C. § 1924, 18 U.S.C. § 798, 18 U.S.C. § 793 and 18 U.S.C. § 1905. Ironically, and by analogy, suspected Chinese Agent Wen Ho Lee will likely be charged with transferring classified information from a secure to a non-secure computer. FBI security background materials are entitled to similar treatment. Indeed, Special Agent Sculimbrene attested to the illegality of removing security background FBI materials from government premises. See Declaration of M. Dennis Sculimbrene, attached as Exhibit 19, at para. 18.

There is other evidence from which it also can easily be concluded that information from FBI background summaries was being misused. For example, Anderson, one of Livingstone’s assistants at OPS, kept a sign-out log for FBI background summaries. During a crucial period of time after the files had been obtained, however, there is a mysterious six (6) month gap in the log much akin to the infamous eighteen (18) minute gap in the Nixon Oval Office recordings. See Anderson Depo. at 148-55, 382; Sign Out Log, attached as Exhibit 42.

Moreover, Secret Service logs demonstrate that Livingstone and Marceca, two political low-lifes, had unexplained access to The White House residence. See Secret Service Logs, attached as Exhibit 43. These logs are corroborated by Linda Tripp’s testimony that Livingstone boasted about his access to the White House Residence. See Tripp. Depo. at 297-303. Mari Anderson testified that Livingstone removed FBI files from OPS without making an entry in the sign out log, albeit allegedly to show them to Kennedy. See Anderson Depo. at 151. Documents maintained by Deputy White House Counsel Vince Foster, including FBI files and the infamous Rose Law Firm billing records, were likely removed from The White House Counsel’s Office at the direction of Mrs. Clinton on the night of Foster’s death. Tripp testified that she saw what she thought were both FBI files and the Rose Law Firm billing records in a safe used by Foster in Nussbaum’s office. Id. at 61-67, 71-72, 80-83, 94, 347-48, 351-52, 491-99, 545-51, 561, 672, 768-72. A Secret Service agent testified that he saw Mrs. Clinton’s Chief-of-Staff, Maggie Williams, removing documents from The White House Counsel’s suite the night of Foster’s death. See Excerpt from Investigation of Whitewater Development Corporation and Related Matters, Final Report of the Special Committee to Investigate Whitewater Development Corporation and Related Matters, 104th Congress, Second Session, June 17, 1996, attached as Exhibit 44 at 53-55. Tripp also testified that after Foster’s death, Tom Castleton, a White House Counsel Office worker, carried boxes from Foster’s office to The White House residence under the direction of and esc