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 escorted by Williams. See Tripp Depo. at 348-51. Craig Livingstone and another individual were seen carrying boxes of documents and binders away from Foster’s office the morning after his death. See Livingstone Depo. at 120-25. The Rose Law Firm billing records, which were subpoenaed by federal investigators but were claimed to have been "lost," mysteriously reappeared in a White House Residence Book Room approximately two (2) years later.³¹ A Senate committee would later conclude that, despite her sworn denials to the contrary, Mrs. Clinton "is more likely than any other known individual to have placed the records in the Book Room." 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 at 161; see also id. at 155-61; Declaration of Christopher B. Emery, attached as Exhibit 22, at para. 10. White House Usher Emery saw several boxes labeled "Mansion Records" in a closet used by Mrs. Clinton in her White House Residence office. See Declaration of Christopher B. Emery, attached as Exhibit 22, at para. 9. He was later told that these boxes contained documents removed from Vince Foster’s White House office. Id. Given Ms. Tripp’s largely uncontroverted testimony placing FBI files in Foster’s office and safe, it is likely that at least some of the FBI files traveled this same route to Mrs. Clinton, underscoring her involvement.

Finally, the Court should properly draw strong adverse factual inferences from Marceca’s invocation of the Fifth Amendment privilege against self-incrimination concerning the misuse of FBI background summaries and other information in FBI files. When Marceca was questioned at his deposition in this case about such misuse, he declined to answer:

* * *

See Marceca Depo. at 87-88; 214-16. As "[s]ilence is often evidence of the most persuasive character," the Court can thus draw strong adverse inferences from Marceca’s refusal to answer these important questions. See, e.g., Baxter, 425 U.S. at 318-20.

It is categorically not within OPS’ purview to obtain FBI background investigation reports on persons associated with any prior administration who no longer require access to The White House complex. Obviously, obtaining FBI background investigation reports on a prior administration’s appointees and employees raises a strong, evidentiary inference that the information in these files is likely being used for nefarious purposes. This Court categorically declared in its June 12, 1997 Memorandum Opinion that obtaining files for political purposes could not fall within scope of employment:

June 12, 1997 Memorandum Opinion at 18.

Similarly, White House Counsel Bernard Nussbaum testified, when appearing before the House Committee on Government Reform and Oversight:

Text of Testimony of Bernard W. Nusbaum before the Committee on Government Reform and Oversight, House of Representatives, June 26, 1996. Nussbaum gave similar testimony at his deposition in this action:

See Nussbaum Depo. at 206-207.

Livingstone conceded at his deposition in this matter that he had not been hired to obtain FBI files on non-holder-over appointees and employees of the Reagan and Bush administrations. Livingstone testified:

* * *

See Livingstone Depo. at 493 and 495.

Anthony Marceca, Livingstone’s hand-picked "detailee" from the Department of Defense and former political "dirty tricks" partner, refused to answer the question -- with regard to not only himself, but with regard to Livingstone, Nussbaum and others -- and instead invoked the Fifth Amendment privilege against self-incrimination:

See Marceca Depo. at 88-90. Again, as "[s]ilence is often evidence of the most persuasive character," the Court should thus draw an adverse inference from Marceca’s refusal to answer Plaintiffs’ questions. See, e.g., Baxter, 425 U.S. at 318-20.

On or about July 12, 1999, in response to Plaintiffs’ motion for leave to depose her, Mrs. Clinton submitted -- for this first time in the more than three (3) years since Filegate erupted and approximately two and a half (2½) years after this case was filed -- a sworn declaration containing a series of "carefully worded" denials. While that declaration is technically not before the Court for purposes of substitution and class certification, it is telling, to say the least, that Mrs. Clinton’s declaration is riddled with more holes than Swiss cheese and raises more questions than it answers. That fact that Mrs. Clinton would take the risk to submit such a declaration to try to avoid testifying is further evidence that there is, in fact, something to hide and, consequently, that FBI files were misused as Plaintiffs have alleged.

For example, Mrs. Clinton claims in paragraph 2 of her declaration that she never obtained, ordered or requested anyone to obtain any FBI file, FBI background investigation summary or information therefrom on any former government employee employed by either the Reagan and Bush Administration. At a minimum, the omissions contained in this statement raise a strong evidentiary inference that she authorized, approved of or expressed an "interest" in someone else’s obtaining them. Likewise, it also raises a strong evidentiary inference that she ordered, requested, authorized, approved of, or expressed an "interest" in someone else’s reviewing them. She certainly does not deny knowing that the files had been obtained, or state when she first learned that the files had been obtained.

Mrs. Clinton’s claim in paragraph 3 that she never disseminated, nor ordered anyone to disseminate any FBI file, FBI background investigation summary or information therefrom likewise, raises a strong evidentiary inference that she authorized, approved of, or expressed an "interest" in someone else’s disseminating FBI files, summaries or information therefrom.

Mrs. Clinton’s claim in paragraph 4 that she has never "seen" any FBI file, FBI background file or information therefrom, clearly raises a strong evidentiary inference that someone conveyed such information to her orally, or that she saw it in a different format, such as in a computer database, which she is attempting to claim is not or no longer FBI "information." Likewise, Mrs. Clinton’s claim in paragraph 4 that she did not maintain such files herself raises as a strong evidentiary inference that other persons did maintain such files, and that Mrs. Clinton knew this to be the case. Moreover, her claim in paragraph 4 that she has no knowledge of any "politically motivated" or other "misuse" of files raises a strong evidentiary inference that files were kept as "insurance" to silence or retaliate against perceived critics and potential adversaries at some unknown date in the future. The terms "politically motivated" and "misuse" are also very vague, and their definitions depend as much on the "beholder" as anything else. They are potentially akin to her husband’s denials of an "improper relationship" with Monica Lewinsky.

Finally, Mrs. Clinton’s claim in paragraph 5 that she did not hire, direct or recommend the hiring of Craig Livingstone for any position again raises a strong evidentiary inference that she authorized, approved of, or expressed an "interest" in Mr. Livingstone’s hiring. Indeed, Mrs. Clinton not only played a substantial role in hiring not only Mr. Livingstone, but also the other major actors in Filegate, including Nussbaum, Kennedy, Foster and Marceca. The omissions contained in Mrs. Clinton’s declaration thus raise strong, evidentiary inferences that she illegally masterminded and implemented Filegate using U.S. Government employees acting outside the scope of their employment. Mrs. Clinton’s carefully-worded declaration thus serves to highlight that factual issues that remain and why she must be deposed for the Court to fully consider substitution and class certification issues.

According to Dick Morris, a top advisor to and representative of the President and Mrs. Clinton, Hillary Rodham Clinton master-minded Filegate because "she’s a paranoid lady."³² As Morris’ former companion, Ms. Sherry Rowlands states in a sworn declaration:

See Declaration of Sherry Rowlands, attached as Exhibit 46, at paras. 4-6 (emphasis added).

Morris, the agent of the Clinton’s, thus admitted that FBI files were unlawfully obtained to use against real or perceived adversaries. This is consistent with what Joyce Milton wrote in her political biography of Mrs. Clinton:

See Excerpt from Joyce Milton, The First Partner, attached as Exhibit ___, at 323 (emphasis added). Similarly, during a February 8, 1998 interview, George Stephanopoulos, a former top adviser to and continuing confidant of President Clinton and other top advisors in The White House, told a national television audience on ABC’s This Week with Sam Donaldson and Cokie Roberts that there is an "Ellen Rometsch" strategy³³ by "White House allies" to attack perceived adversaries of the Clinton Administration with derogatory information:

Transcript of Weekly Roundtable dated February 8, 1998, attached as Exhibit 47, at 2-3. At his deposition in this case, Stephanopoulos refused to name the White House allies to which he had referred, raising yet another strong evidentiary inference that the "Ellen Rometsch" strategy had been put into effect as Filegate.

Consistent with Morris’ comments about Mrs. Clinton’s "paranoia," Ms. Milton’s reference to "insurance" and Stephanopoulos’ "Ellen Rometsch" strategy, the Clinton White House has indeed demonstrated a pattern of misusing information in confidential files in order to smear and destroy, its perceived critics and adversaries. This history includes not only the misuse of information concerning Ms. Linda Tripp and Kathleen Willey, about which the Court expressly authorized discovery, but also other persons including former White House Travel Office Director Billy Ray Dale, Presidential Advisor Dick Morris, former White House Usher Chris Emery, approximately 160 Bush Administration State Department employees, and even Anthony Marceca’s misuse of information in his own files. The wholesale misuse of confidential information by the Clinton White House thus gives rise, as the Court found with respect to Ms. Tripp and Ms. Willey, to further evidence that "Filegate" was not an innocent bureaucratic snafu, but an intentional, unlawful misuse of information in FBI files that simply cannot fall within the scope of Nussbaum’s Livingstone’s and Marceca’s employment.

The case law is clear that strong adverse evidenciary references arise from a pattern of similar conduct. The reoccurrence of a pattern of conduct thus makes it more likely than not that the acts complained of occurred, and this pattern may therefore be given weight by the jury. See Morris v. Washington Metropolitan Area Transit Authority, 702 F.2d 1037 (D.C. Cir. 1983). Indeed, the Court ruled in this case that:

See April 13, 1998 Memorandum and Order at 6-7.

In January 1998, it became publicly known that Linda Tripp had tape recorded hours of conversations with Monica Lewinsky that implicated President Clinton in perjury and obstruction of justice, thereby making Ms. Tripp a material witness against the President. Not coincidentally, only two (2) months later, information from Ms. Tripp’s confidential U.S. Department of Defense ("DoD" or "Clinton Defense Department") personnel file, which described how she answered a question about her arrest record, appeared in an article in The New Yorker magazine authored by Jane Mayer. See Jane Mayer, "Portrait of a Whistleblower," The New Yorker, March 23, 1998 and Jane Mayer, "For the Record," The New Yorker, June 8, 1998, collectively attached as Exhibit 48. The release of such information is obviously a direct violation of the Privacy Act and a criminal offense. 5 U.S.C. § 552a(i).

A few days after the information from Ms. Tripp’s confidential DoD personnel file was made public, Clinton Defense Department spokesman Colonel Dick Bridges claimed that the person who had leaked the information "thought he was releasing ‘innocent’ information because it merely noted that Tripp said she had never been arrested." See Jeff Leen, "Defense Dept. Probes Release of Tripp Data," The Washington Post, March 14, 1998, attached as Exhibit 49. The Clinton Department of Defense soon identified Clifford Bernath, then Principal Deputy Assistant to the Secretary of Defense for Public Affairs and a career employees, as having leaked the information. Id.

As the release of this information about Ms. Tripp was nothing but a transparent attempt to discredit and intimidate her into silence, as well as destroy her credibility and reputation, and as the parallels to Filegate were obvious, the Court allowed Plaintiffs to conduct discovery into the unlawful release. See April 13, 1998 Memorandum and Order at 6-7. Plaintiffs soon learned that Bernath, a "supposed" career employee, was acting under the direct orders of his supervisor, Assistant to the Secretary of Defense and Pentagon Press Secretary Kenneth Bacon, a Clinton Administration political appointee, pointing to White House involvement. Plaintiffs also soon learned that a high-level cover-up was underway to conceal the true circumstances surrounding the unlawful release, also supporting the likelihood of White House involvement.

Specifically, on April 26, 1998, Defense Secretary William Cohen had told a national television audience that when the information from Ms. Tripp’s confidential DoD personnel file was released, Bernath "was responding to an inquiry from the press." See Transcript of Fox News Sunday, April 26, 1998, attached as Exhibit 50, at 9. But when Plaintiffs deposed Bernath, he testified that he was directed to obtain and release the information from Ms. Tripp’s confidential DoD personnel file by Bacon. See Bernath Depo. at 319-20. Thus, Secretary Cohen’s failure to tell the public that Bernath’s response to "an inquiry from the press" was really a response to a direct order from Bacon was obviously an attempt to make Bernath, a "career employee" not tied politically to the Clinton Administration, the "fall guy" for the unlawful release. After the release, Bernath was rewarded with a new position³⁵, higher pay and, ironically, responsibility for for teaching privacy regulations to public affairs officers. Id. at 388; Bacon Depo. at 385-88; Bill Sammon, "Tripp Leak Violated Policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 51. After giving a deposition this case, Bernath received an additional $10,000 cash award from the Clinton Defense Department, at the direction of Bacon. See Bernath Depo. at 425-30. The "payoff" was likely intended to buy Bernath’s continued loyalty during various investigations of the matter, and, tellingly, Bernath did not tell anyone about it except his wife. Id. at 429-30.

When Plaintiffs deposed Bacon, he testified that, before the release, he had a telephone conversation with Mayer, the author of the article, during which Mayer asked him how Ms. Tripp "answered a specific question on her Security Clearance Form." See Bacon Depo. at 195-96. Bacon also testified that Mayer "said that she had information that Linda Tripp had been arrested" and "told me the circumstances. . . . " Id. Bacon further testified that, when he first spoke to Bernath about Mayer’s request "I told him exactly what Jane Mayer told me, which was that she had information that Linda Tripp had been arrested." Id. at 223. Consistent with Bacon’s account, Bernath testified that prior to his conversation with Mayer, Bacon told him "that [Mayer] indicated that she may have information that there was -- that Ms. Tripp may have had a problem when she was young. . . ." See Bernath Depo. at 231-32. Bernath thus knew that if Mayer had information that Ms. Tripp had been arrested, it "would be a serious circumstance and it would have to be investigated." Id. at 251. Therefore, contrary to Colonel Bridges’ statement that Bernath "thought he was releasing ‘innocent’ information because it merely noted that Tripp said she had never been arrested" (see Jeff Leen, "Defense Dept. Probes Release of Tripp Data," The Washington Post, March 14, 1998, attached as Exhibit 49), both Bacon and Bernath had to have known that the information was not going to be used for some "innocent" purpose, but was going to be used to try to discredit and destroy Ms. Tripp. Moreover, Plaintiffs’s discovery also directly implicated Secretary Cohen in the cover-up. At his deposition, Bacon testified that he asked Secretary Cohen to correct his false public statement, but Secretary Cohen failed to do so. See Bacon Depo. at 354. In fact, Secretary Cohen has failed to correct his false public statement on multiple occasions, despite being prompted to do so by Bacon. Id. at 354, 457-58, 478-83. Moreover, the notes of the Defense Department employee who actually provided the information from Ms. Tripp’s confidential DoD personnel file to Bernath, who in turn released the information to Mayer, demonstrate that the purported reason given by Bernath for obtaining the information was for a meeting with Secretary Cohen. See Excerpt from DoD Document Production, attached as Exhibit 52.

Perhaps the most egregious aspect of this cover-up, and as the Court itself found in reviewing in camera various documents that the Clinton Defense Department attempted to withhold from Plaintiffs, including drafts of responses to congressional inquires, is that the Clinton Defense Department was apparently willing to lie to Congress in an attempt to try to conceal the involvement of high-level political appointees in the unlawful release:

* * *

See March 31, 1999 Memorandum and Order at 20 and 22 (emphasis original).

Finally, and most importantly, in recent answers to interrogatories served by Plaintiffs in this case, Clinton White House Press Secretary Mike McCurry provides new, concrete evidence of Clinton White House involvement in the release of this information from Ms. Tripp’s confidential DoD personnel file. In these answers, McCurry admits:

* * *

See Responses and Objections to Plaintiffs’ First Set of Interrogatories to the Executive Office of the President Pursuant to Court Order of April 13, 1998 at 20, 55 ("EOP Responses") (July 16, 1999). Thus, it is now known from McCurry himself that, at the very least, the Clinton White House played a key role in the unlawful release of information in Ms. Tripp’s confidential DoD personnel file by referring Mayer to Bacon. One crucial question remains, however, is: Did Mayer learn about Ms. Tripp’s thirty-year old arrest record from the Clinton White House? Obviously, this is exactly the type of information that is contained in FBI files, and the Clinton White House had obtained Ms. Tripp’s FBI background summary and related materials on or about June 16, 1994. See Defendants’ Response to Request No. 3, attached as Exhibit 37.

Plaintiffs began their inquiry into the unlawful release of information from Tripp’s confidential DoD personnel file based on the proposition that it was likely that the Clinton White House had been involved. Plaintiffs have now proved it. Plaintiffs have also uncovered an effort to cover-up the true circumstances of the unlawful release through either public misstatements or an willingness to lie to Congress about the release. Politics permeated the unlawful release and thus provides a strong, evidentiary inference of similar misuse of information in FBI files for partisan political purposes.

On Sunday, March 15, 1998, Ms. Kathleen Willey, a former volunteer at the Clinton White House and Democratic Party activist, appeared on CBS’s 60 Minutes and accused President Clinton of groping her in 1993 inside the Oval Office. The following day, on Monday, March 16, 1998, the Clinton White House released letters subsequently written by Ms. Willey to President Clinton in yet another transparent effort to discredit, destroy and silence one of the President’s perceived adversaries.³⁶

At a deposition in this case on the very same day that the Clinton White House released the letters, presidential spin-smearmeister James Carville admitted that two (2) days earlier the President had called him to discuss and decide whether to release of the letters:

See Carville Depo. at 239-40.

During his August 17, 1998 grand jury testimony in the Lewinsky matter, President Clinton admitted that these letters had been taken from Clinton White House files and released to the media in order to "shatter" Ms. Willey’s credibility:

* * *

See Excerpt from President Clinton’s Grant Jury Testimony as published by The Washington Post, attached as Exhibit 54, at 8 and 9 (emphasis added). ORM Director Terry Good also testified that the letters were obtained from files maintained by ORM and retrieved by searching for Ms. Willey’s name in ORM’s computer. See Good Depo. at 189; 226-227; 257. The release thus constitutes yet another direct violation of the Privacy Act and a criminal offense. 5 U.S.C. § 552a(i).

Recent interrogatory responses by the Clinton White House show that key personnel had long known of the Willey letters and were laying in wait for an opportunity to release them. Specifically, Deputy White House Counsel Bruce Lindsey kept some of the letters in a drawer in his West Wing office as early as Summer 1997. See Responses and Objections to Plaintiffs’ First Set of Interrogatories to the Executive Office of the President Pursuant to Court Order of April 13, 1998, attached as Exhibit 55, at Response to Interrogatory No. 15. The White House apparently learned in advance of the 60 Minutes broadcast that Ms. Willey was going public with her allegations, and Lindsey discussed the letters with Deputy White House Counsel Cheryl Mills and White House Counsel Charles Ruff the weekend of the television program. Id. Lindsey then recommended to President Clinton that the letters be released. Id. The President concurred in that recommendation. Id. Thus, the head of Defendant EOP personally approved a violation of the Privacy Act, a violation which this Court has ruled directly bears on this case. Most importantly for purposes of this case, however, is that Assistant to the President Sidney Blumenthal spoke with Mrs. Clinton about the letters that same weekend, and both Mrs. Clinton and Blumenthal agreed the letters should be released. Id. Thus, Mrs. Clinton, the mastermind of Filegate, was, not coincidentally, also directly involved in this additional violation of the Privacy Act. This underscores her role as not only the mastermind, but also the implementor of the Clinton smear machine.

The Court previously ruled, "Under the specific circumstances presented on the Willey-file issue, if the file was maintained in a way that implicated the Privacy Act, then its misuse could prove to be circumstantial evidence of file misuse aimed at the plaintiffs in the case at bar." See December 7, 1998 Memorandum Opinion at 3 (emphasis added). Because politics also permeated the unlawful release of Ms. Willey’s letters, it also provides a strong, evidentiary inference not only about Mrs. Clinton’s role in Filegate, but also the similar misuse of information in other government files for partisan political purposes.

In his sworn declaration, former Director of the White House Travel Office Billy Ray Dale testified, "Based on all the evidence made available to me, Hillary Rodham Clinton had ordered and directed my and my Travel Office colleagues’ dismissal." See Dale Declaration, attached as Exhibit 38, at para. 4

This case, in essence, began with Mr. Dale’s FBI summary report. The discovery of Mr. Dale’s FBI material among documents turned over, only under threat of contempt, by the Clinton White House led to the uncovering of Filegate. See Exhibit 10 at 54-65.

Mr. Dale’s FBI materials were requested by the Clinton White House seven (7) months after he was fired by Mrs. Clinton. See Request Form for Billy Ray Dale, attached as Exhibit 37. He clearly no longer required access. Yet, the Clinton White House continues to insist that it was just an "innocent mistake." See Responses and Objections to Plaintiffs’ Third Set of Interrogatories to the Executive Office of the President, attached as Exhibit 56, at Responses 12 and 13, 23-29. This "innocent mistake" explanation does not survive even cursory scrutiny:

See Dale Declaration, attached as Exhibit 38, at para. 3-8. In terms of chain of custody, Plaintiffs’ have developed a verifiable "straight line" of improper misuse of Mr. Dale’s FBI file beginning with OPS to the White House Counsel’s Office directly to Mrs. Clinton:

The "crew" in Vincent Foster’s office was not there to help Mr. Dale, but to plan his and the other Travel Office employees firing. Evidence of their malicious intent can be found in the attached declaration of retired FBI Special Agent M. Dennis Sculimbrene, who witnessed and testified to suspicious activity surrounding the Travel Office and the desire of Kennedy and Watkins, in the least, to misuse of confidential FBI information. See Sculimbrene Declaration, attached as Exhibit 19.

There is little room for doubt as to the misuse of Mr. Dale’s FBI background information and other confidential government files. Craig Livingstone watched Mr. Dale clean out his White House desk and put him on a "do not admit" list, and Defendants still incredibly allege that Mr. Dale’s file was obtained in the "mistaken" belief he required access to the Clinton White House. Again, the outrageous misuse of the Mr. Dale FBI and other materials is strong evidence that the same actors performed similarly improper deeds with other Plaintiffs’ FBI materials.

The case of Christopher B. Emery is similar to the Willey/Tripp Privacy Act violations in that the violations of Mr. Emery’s privacy rights raise a strong evidentiary inference that FBI files at issue in this case were improperly used by the Clinton White House. Furthermore, as is true of Filegate as a whole, the evidence shows the existence of a continuing to cover-up of this unlawful misuse.

Mr. Emery was a White House Usher assigned to The White House Residence from 1987-1994. See Declaration of Christopher B. Emery, at para. 1 attached as Exhibit 22. Like the White House Travel Office, the White House Ushers Office was targeted by Mrs. Clinton for a purge:

See Bill Turque and Mark Miller, "Judgement Calls: Amid haircuts and staff firings, a bunker mentality sets in at the White House," Newsweek, May 31, 1993, attached as Exhibit 58. This paranoia on the part of the Clintons seemed to affect one of Mrs. Clinton’s placements in the White House Counsel’s Office, Vincent Foster:

See Emery Declaration, attached as Exhibit 22, at para. 5 (emphasis added); see also Investigation of the White House Travel Office Firings and Related Matters," Fifteenth Report by the Committee on Government Reform and Oversight, 104th Congress, Second Session, September 26, 1996, attached as Exhibit 59, at 128-29. Given the comment about the Ushers Office allegedly written by Foster, it is no surprise that Ms. Tripp saw what she believed to be Chris Emery’s FBI file in a safe used by Foster in Bernard Nussbaum’s office. See Tripp Depo. at 93-95, 169-70.

When Mr. Emery’s file was identified by Ms. Tripp at deposition, the Clinton White House quickly denied that any FBI material had been obtained him. But they were later forced to "eat crow." Despite Mr. Emery’s name not appearing on any lists of FBI background material obtained by the Clinton White House, the Clinton Justice Department was forced to admit that Mr. Emery’s FBI background material was sent to the Clinton White House at least twice. The Clinton White House then lamely tried explained that Mr. Emery’s file was requested for the Update Project:

See Responses and Objections to Plaintiffs’ Third Set of Interrogatories to the Executive Office of the President, attached as Exhibit 37, at Response 8, 20-21. The Clinton White House then disingenuously claims that it requested a "five-year" FBI reinvestigation of Mr. Emery not realizing that one had just been completed two years earlier. Id. Mr. Emery’s sworn declaration shows that the Clinton White House’s "cover story" doesn’t hold water:³⁹

See Emery Declaration, attached as Exhibit 22, at para. 6-9. The Clinton White House knew that Emery didn’t require a FBI background reinvestigation, yet requested one anyway. And given Mrs. Clinton’s role in the firing, the location of Mr. Emery’s file in Vince Foster’s safe and the highly unusual, invasive questionnaire issued by Bernard Nussbaum’s office, it stands to reason that Mr. Emery’s FBI file and reinvestigation were improperly requested, at the orders of Mrs. Clinton in an attempt to find "dirt" to justify his firing, not to ascertain his suitability for access.

Ms. Tripp, who was also present in the Clinton White House at the time, concluded:

See Tripp Depo. at 246-47

Another compelling example of the Clinton Administration’s violation of Privacy Act rights eerily reminiscent of Filegate concerns as many 197 State Department staffers from the Bush Administration:

See Mike Mitchell, "Justice delayed and justice denied in the file search case," The Washington Times, September 21, 1994, attached as Exhibit 61 (emphasis added). Inspector General Funk’s report details the likely violations of Privacy Act. See "White House Liaison Office, Office of the of the Under Secretary for Management, U.S. Department of State, Privacy Act Violation, OIG Case No.93-173, attached as Exhibit 62.

Importantly, Ms. Tamposi and Ms. Fitzgerald had been accused of illegally accessing then candidate Bill Clinton’s State Department passport files. In an clear attempt at retaliation, Clinton political appointees pulled Ms. Tamposi’s and Ms. Fitzgerald’s Privacy Act-protected files, and the files of nearly 200 of their colleagues, then leaked damaging information about them to the press. As with other Clinton Administration scandals, the cover-up began next. Implausible denials were bandied about and "critical telephone logs . . .were destroyed by a White House attorney despite that official being warned that an inquiry was under way." See Mike Mitchell, "Another White House cover-up," The Washington Times, September 21, 1994, attached as Exhibit 63 (emphasis added).

Not only do the 197 victims from the Bush Administration bear on the class certification issue -- the Clinton Justice Department refused to provide Plaintiffs with the names of these individuals -- but the outrageously flagrant Privacy Act violations by staffers in the White House liaison office at the State Department raise yet another strong evidentiary inference that the FBI files of Plaintiffs and approximately 900 former Reagan and Bush administration appointees, employees and others were also obtained and misused for partisan political purposes.

Importantly, during his White House tenure, Marceca improperly ordered FBI files on potential appointees and misused confidential information in at least one potential appointee’s personnel file in order to discredit that person. As a memorandum in Marceca’s personnel file, produced to Plaintiffs during discovery in this case demonstrates:

See Memorandum from Anthony Marceca’s Personnel File, attached as Exhibit 64. Apparently, Marceca was not only improperly obtaining FBI files on former Reagan and Bush administration personnel allegedly pursuant to the Update Project, but he was also improperly obtaining FBI files on potential appointees, and has been directly implicated in the misuse of information in a confidential personnel file to discredit a whistleblower/potential appointee at the behest of the U.S. Army. This direct evidence that Marceca was also improperly ordering FBI files in another context and participated in a scheme to discredit a potential appointee refutes any claim that Filegate was an "innocent bureaucratic snafu."

In addition, it has also since been discovered that Marceca improperly reviewed his own FBI file -- claiming incredibly that it fell on the floor in Livingstone’s office when he reached for a newspaper while Livingstone conveniently had his back turned -- then, upon finding a comment about him that was not to his liking, actually filed a defamation suit against the person to whom the comment was attributed. The House Committee found:

* * *

* * *

* * *

See Exhibit 10 at 54.

The person whom Marceca sued, a Justice of the Peace in Texas named Lilly A. Stephensen, had been interviewed by the FBI during Marceca’s background investigation. See Exhibit 10 at 52. Judge Stephenson met Marceca while he was working in the Texas Attorney General’s Office, Medicaid Fraud Division. Id. at 52-53. During the FBI interview of Judge Stephenson, she stated:

See Exhibit 10 at 53. The Clinton White House apparently ignored this information in Marceca’s background file and nonetheless placed him in exactly such a position of trust and confidence. In commenting on this particular incident, the House Committee declared, "Marceca’s actions exemplify why its is imperative that the Office of Personnel Security employ only individuals who are professional, circumspect and have demonstrated a sense of responsibility and discretion." See Exhibit 10 at 55. Plaintiffs respectfully submits that it also demonstrates a willingness to misuse information in confidential files that belies the claim that Filegate was anything but an intentional misuse of FBI files for partisan political purposes.

Since May 30, 1996, only days before Filegate erupted, Marceca has received pay raises totaling approximately $12,000 per year. See Marceca Depo. at 376-77. Given that Marceca’s conduct has in the Clinton White House has been criticized so severely by the House Committee, among others, these unusual pay raises give rise to further strong evidentiary inferences that he is being rewarded for his past "service" to the Clinton White House and/or encouraged to keep silent, through the invocation of the Fifth Amendment, about his misdeeds.

Why be defensive, when Filegate was simply an "innocent bureaucratic snafu?" That is one of the questions this Court must, respectfully, consider as it evaluates whether Nussbaum, Livingstone and Marceca were acting in scope of their employment or, as is obviously the case, as part of partisan political smear machine orchestrated by Mrs. Clinton.

Certainly, if Nussbaum, Livingstone, and Marceca had been pursuing the interests of the United States Government, then there would have been every reason for the key players in this scandal to be forthcoming, truthful, and cooperative. Instead, as soon as the Filegate scandal emerged, those implicated went into a full cover-up mode that continues to this day: false affidavits have been filed, cover stories fabricated, bribe money was likely paid, memories evaporated, evidence was lost, and witnesses were intimidated and harassed. Why engage in a cover-up -- to the point of committing criminal obstruction of justice -- if the underlying conduct was innocent? The obvious answer is that Filegate was not innocent or inadvertent, but an intentional misuse of information and materials contained in FBI background files.

The outlines of the cover-up can be found in the conclusions of one of two expansive Congressional inquiries into the Filegate scandal. The House Committee, led by Congressman William H. Clinger,⁴⁰ conducted an investigation which inexorably led to several findings that show the preliminary outline of the Filegate cover-up:

* * *

See Exhibit 10 at 16-17. Citing the ongoing nature of its investigation, the House Committee declined to make more than one (1) recommendation, that FBI General Counsel Howard Shapiro should resign:

Id. at 17-18. Shapiro eventually did just that, though not without some misplaced and disingenuous praise from FBI Director Louis Freeh and Attorney General Janet Reno. See Roberto Suro, "FBI General Counsel to Depart in June; Shapiro Was Accused of ‘Poor Judgment’ in White House Files Matter," The Washington Post, May 22, 1997, attached as Exhibit 66. He now works as the counsel of Terry Lenzner’s, Investigative Group International, Inc., a private detective hired by the Clintons to dig up more dirt on perceived Clinton adversaries. See Williams and Connolly/Skadden Arps Press Release, attached as Exhibit 67. Lenzner and his colleague, Larry Potts, of Ruby Ridge "shoot to on sight" fame, have refused to answer critical questions at depositions in this case. After Plaintiffs filed motions to compel, Bill Clinton himself intervened to try to prevent the truth from coming out. See Memorandum of Williams and Connolly and Skadden, Arps, Slate, Meather & Flom, LLP, on Behalf of President Clinton, in Support of Motion to Intervene and for Protective Order, and in Opposition to Plaintiffs’ Motion to Compel, filed on or about April 10, 1998.

The House Report also raises questions as to why the Clinton White House Counsel’s Office withheld "smoking-gun" documents that forced Filegate into the light of day:

See Exhibit 10 at 4.

After the House Committee destroyed the Clinton White House’s initial effort to cover-up the fact that it had improperly obtained the FBI files of Mr. Dale, Plaintiffs and hundreds of others former Reagan and Bush administration appointees, employees and others, the Clinton White House smear machine went into high gear. The Clinton White House had a constantly-changing cover story for Filegate. First, it was:

See Exhibit 10 at 2, 6-9. Nearly three (3) years later, and after Plaintiffs and other investigatory bodies had uncovered even more evidence of concealment, some of these discredited cover stories continue to be bandied about by the Defendants.

Livingstone’s own counsel participated, either inadvertently or otherwise, in concocting at least one false cover story. Marceca testified that Livingstone’s counsel asked him to submit an affidavit stating that Filegate was a bureaucratic oversight. See Marceca House Testimony Excerpt at 51-54, attached as Exhibit 68; Marceca Affidavit attached as Exhibit 68; Exhibit 10 at 8. However, Mari Anderson’s testimony shows that Marceca, Livingstone and everyone in OPS had reason to know, in advance, that they were ordering up the FBI file materials of Republican who were not holdover employees or political appointees. See Anderson Senate Depo., attached as Exhibit 28, at 102-03, 157, 161. Marceca’s affidavit, which Livingstone’s counsel helped him prepare, is thus clearly at odds with Anderson’s sworn testimony, and is false.

Another major piece of evidence pointing to a cover-up emerged after the House Report was made public on September 26, 1996. In the days after the House Committee effectively concluded its investigation into Filegate (though with many questions yet unanswered), the Senate Judiciary Committee uncovered a six (6)-month gap -- reminiscent of the infamous eighteen (18) minute gap in the Nixon tapes -- in the log used by OPS to track FBI background material taken out of its vault. See Office of Personnel Security Log, attached as Exhibit 42. The gap in the log is roughly between March 29, 1994 and September 29, 1994. Id.

Mari Anderson, who instituted the keeping of the log per Craig Livingstone’s instructions, testified at her deposition before the Senate that "every time a [FBI background investigation file] was checked out, it was to be logged." See Anderson Senate Depo., attached as Exhibit 28, at 43. Tellingly, Livingstone was exempt from having to fill in the log, so no complete written record exists of whose FBI files Livingstone took out of OPS.⁴² Id. at 52; see also Anderson Depo. at 150.

When asked about the six-month gap in the log by investigators, Anderson recalled that she "probably did" make entries in the log at least in April, May, and June of 1994 -- directly in the middle of this gap. See Anderson Senate Depo. attached as Exhibit 28, at 47-48. Anderson testified that "there are pages that are not there" in the log, and she was "confident" that some portion of the log is absent. Id.

Anderson’s testimony shows that this crucial evidence is missing, and the Clinton White House has offered no adequate explanation. For pages of a log that could have detailed the misuse of Plaintiffs’ FBI files to go missing is quite simply extraordinary. The only reasonable, if not inescapable, conclusion to be drawn is that the pages were purposely removed to cover-up FBI file misuse by the Clinton White House.⁴³

A factfinder need not rely on a witness’ disingenuous claim that he did not recall events that any reasonable person should have recalled. See United States v. Chapin, 515 F.2d 1274, 1280-84 (D.C. Cir. 1975); Gebhard v. United States, 422 F.2d 281, 287-88 (D.C. Cir. 1970). Rather, inferences and circumstantial evidence can be relied on to demonstrate that what a witness claims cannot be recalled, did, in fact, happen. Id.

With a few notable exceptions, such as Linda Tripp and the individuals who are testifying through the affidavits attached to this brief, Clinton Administration witnesses have had significant memory problems. Essentially, several witnesses who, in the ordinary course, should have substantial knowledge about Filegate have instead claimed that their memories are blank. The claimed memory lapses of these witnesses, especially key witnesses such Harold Ickes, Thomas "Mack" McClarty, and George Stephanopoulos, simply are not credible and are most certainly feigned. Feigned memory lapses constitute perjury. Chapin, 515 F.2d at 1280-84; Gebhard, 422 F.2d at 287-88. The perjurious "memory gap" on these key witnesses thus raise a strong evidentiary inference that the Clinton White House is trying to hide something about Filegate -- for example, the fact that Livingstone, Marceca, and Nussbaum obtained the FBI files at issue for the purposes of political espionage.

At his deposition in this case on May 21, 1998, Harold Ickes testified that he "did not remember" or "did not recall," or made similar allegations of memory loss, approximately eighty-four (84) times -- an average of once every four (4) minutes. See Itemized List of Harold Ickes’ Claims of Memory Loss, attached as Exhibit 70. On other occasions, Ickes testimony was simply evasive. In short, during his deposition, Ickes claimed a loss of memory or gave an evasive once every one and a half minutes, for a total of 264 times. Among the more significant topics on which Ickes professed a lack of memory were:

During almost the entire period that Clinton White House obtained and maintained FBI files on Plaintiffs and other former Reagan and Bush administration appointees, employees and others, and after the scandal became known, Ickes served as Deputy Chief of Staff and Assistant to the President. Id. at 29, 30-31. His duties were to "assist the President in whatever way he wanted." Id. at 29-30. Ickes "reported directly" to Chiefs of Staff Thomas "Mack" McLarty and, later, Leon Panetta, but also "dealt directly with the President" on occasion. Id. at 30. Ickes also testified that, as part of his job, he "had a lot, a lot under [his] purview" and that the FBI files matter "was but one of them, and it was an important issue." Id. at 380-81

In fact, Ickes recruited and supervised Jane Sherburne, who was specifically hired to deal with scandal issues for the Clinton White House. See Sherburne Depo. at 164-65. Sherburne reported directly to Ickes and kept him abreast of Filegate as it publicly unfolded. Id. at 328-31. In his recent book entitled Shadow: Five Presidents and the Legacy of Watergate, Bob Woodward writes dramatically about Ickes’ active, heavy involvement in the Clinton White House’s response to the Filegate scandal, including how Ickes took charge on the day the scandal broke:

See Excerpt from Bob Woodward, Shadow: Five Presidents and the Legacy of Watergate, attached as Exhibit 29, at 326. Ickes, Stephanopoulos and others next went to brief the President:

Id. at 327-28 (emphasis added). Assuming that Woodward’s book is accurate, this was obviously a very dramatic, emotional and memorable meeting with the President of the United States during which the core issues of Filegate were discussed. Yet, less than two (2) years later, Ickes allegedly could not remember if he discussed Craig Livingstone with the President. See Ickes Depo. at 355-56.

Woodward’s book is no less unhelpful to George Stephanopoulos. Stephanopoulos has already been sanctioned by this Court for his feigned loss of memory regarding document searches. Specifically, the Court held that "Stephanopoulos’ claims of memory loss [about when he searched for documents] are simply not believable." Indeed, the Court found that because Stephanopoulos’ "search for documents was inadequate" and his testimony was "not truthful," he had to conduct a "reasonable" search. See May 28, 1998 Memorandum and Order at 25-26 & n.4. Currently pending before the Court are motions by Plaintiffs that demonstrate the unlikelihood, given the exhaustive detail in Stephanopoulos’ new book All Too Human: A Political Education, that Stephanopoulos’ memory has failed him. Additionally, these motions also show how Woodward’s book further demonstrates that Stephanopoulos committed perjury when he claimed to have no memory of obviously very memorable events.

In fact, it is clear that Stephanopoulos did conduct an investigation into Filegate, as the excerpt from Woodward’s book makes clear. Stephanopoulos was present with Sherburne from the very beginning. Yet, in his deposition this matter, Stephanopoulos denies undertaking any investigation. See Stephanopoulos Depo. at 191. Stephanopoulos would also have this Court believe that he has no specific memory of Woodward’s very detailed account of his meeting with the President about Filegate. Id. at 191-94. It would seem that Woodward’s description of that first meeting with the President ought to be quite memorable, yet Stephanopoulos’ memory is incredibly and, most likely, purposefully blank.

Moreover, when Sherburne was deposed on June 21, 1999, not only did she testify that Stephanopoulos participated in the discussions with President Clinton detailed by Woodward, but she also offered further insight into both Stephanopoulos’ and Ickes’ involvement in Filegate. See Sherburne Depo. at 343-344, 354-355. In attesting to the accuracy of Woodward’s book, while complaining that he had allegedly violated her off-the-record conversation (see Sherburne Depo. at 58-59), Sherburne specifically pinpointed a series of meetings with Stephanopoulos in which she informed him about the scandal:

* * *

* * *

* * *

* * *

See Sherburne Depo. at 337, 338-40, 343 (emphasis added).

Contrary to Sherburne’s testimony, when Stephanopoulos’ deposition resumed June 12, 1999, he swore, under oath, to other facts which are simply not believable:

* * *

* * *

* * *

* * *

See Stephanopoulos Depo. at 631-633, 640, 645-646, 652-653 (emphasis added). Sherburne’s testimony thus shows that Stephanopoulos, yet again, failed to testify truthfully to this Court.

Even the President’s former Chief of Staff and best friend, Thomas "Mack" McClarty, claimed, albeit incredibly, to have his own memory problems about Filegate:

See McLarty Depo. at 147. This obviously concerted effort by key actors to feign a collective memory loss only serves to further demonstrate that the Clinton White House is, in fact, attempting to hide the truth and lie about Filegate. Importantly, the "‘witness’ untruths or evasions regarding their ability to remember [gives] rise to inferences" that are adverse to Defendants. See United States v. Owens, 789 F2d 250, 759 (9th Cir. 1986) (citing a myriad of similar holdings among the various Circuits).

Part of the Clinton White House’s cover-up of Filegate verged on, if not crossed into, criminal conduct. Apparently, it is not enough to lie or feign memory loss. Rather, the Clinton White House has also tried to destroy and intimidate those witnesses who have refused to parrot the "party line" on Filegate.

Discussed previously was the effort by Clinton Administration political appointees to destroy Linda Tripp’s credibility by releasing information protected by the Privacy Act from her confidential DoD personnel file. Ms. Tripp, a key witness to Filegate, knew early on what the stakes were if she were to come forward. Ms. Tripp testified about a conversation she had with Bruce Lindsey in which she raised the following:

See Tripp Depo. at 802-806 (emphasis added). Certainly, the recent interrogatory answers provided by the Clinton White House -- in which Lindsey effectively admits to conspiring to destroy to Kathleen Willey with "information coming out in one way or another by the administration" -- confirm Ms. Tripp’s worst fears in this regard.

In addition, it now seems that Mrs. Clinton and others are seeking to have Ms. Tripp, a key, material witness in this matter, put in jail. In testifying about an investigation by Maryland’s Office of the State Prosecutor, Stephen Montanarelli, concerning tape recordings allegedly made by Ms. Tripp of Monica Lewinsky’s efforts to enlist her in a criminal conspiracy, Ms. Tripp testified that "early on I heard through various press outlets that Mrs. Clinton and her people had been in touch with Steny Hoyer [a Democratic congressman from Maryland] and with Kathleen Kennedy Townsend [Maryland’s Democratic Lieutenant Governor] and with Mr. Montanarelli’s boss." See Tripp Depo. at 685-86.

Sure enough, Tripp has been indicted. Plaintiffs’ counsel are separately investigating the circumstances of this prosecution, but given the fact that she received a threat from Bruce Lindsey, that information from her confidential, DoD personnel file was released to smear her, and that Clifford Bernath, the "good soldier" who aided in the violation of Ms. Tripp’s privacy rights recently received a $10,000 cash award (see Section __, supra), the politically-tainted prosecution of Ms. Tripp is, sadly, par for the course.

M. Dennis Sculimbrene, the former FBI special agent who authored the famous "insert" tying Livingstone to Mrs. Clinton and thus to Filegate, has also suffered outright witness intimidation and obstruction of justice because he testified truthfully about Filegate. See Declaration of M. Dennis Sculimbrene attached as Exhibit 17. Sculimbrene’s testimony shows that both the Clinton White House and the FBI attempted to intimidate and retaliated against this 23-year veteran of the FBI because of his testimony on Filegate and related matters. In his sworn declaration, Sculimbrene testifies:

1. I testified truthfully at Billy Ray Dale’s "Travelgate" trial in November, 1995 -- a trial which resulted with Mr. Dale being acquitted. Part of my testimony detailed how, after the Travelgate controversy had broken, I had witnessed unknown individuals in the Travel Office going through files and throwing items away, some of which appeared to be official documents.

10. Shortly before I testified in the Dale Trial, White House Presidential Personnel requested that I submit my name as a candidate for Inspector General of Veteran’s Administration. My name was officially submitted. Shortly after I testified as a Defense witness for Billy Dale, former director of the White House Travel Office, I was advised that I was no longer a viable candidate. Furthermore, I became the subject of an investigation of the Federal Bureau of Investigation’s (FBI) Office of Professional Responsibility Inquiry (OPR) based on one anonymous letter which was officially discredited. I was so emotionally distraught that I had to take two weeks sick leave because of my emotional reaction to this unwarranted and baseless investigation.
11. When I returned, I attempted an informal discussion with my new supervisor. I requested that informal reasonable accommodations granted in October 1994 when I returned to work after a skull fracture in January 1994 be continued at that time. At the time of the informal discussion with my new supervisor (in April, 1996), I still I suffered from cognitive and physical deficits. Yet the consequence of this conversation was not the continuance of the informal reasonable accommodation for my medical condition, but the removal of all work assignments, on April 24, 1996.
12. Press reports were leaked about my testimony with the U.S. Senate Judiciary Committee, in late June, 1996. One of the questions asked of me pertained to my assignment at the time. I answered truthfully that I had none. The FBI had not assigned me any work since April. After my testimony, they attempted to assign me work that conflicted with the recommendation of their own psychologist.
13. On June 28, 1996, my White House Pass was canceled, without written reason, although I requested such. My supervisor at the time verbally advised that my pass was being revoked for my own safety and because my presence "made the First Family uncomfortable." I would note that a request by The White House for a background reinvestigation regarding myself was made after I was removed from The White House.
14. I have no other explanation for the events that I have witnessed and been subjected to other than retaliation for my testimony at the Dale Trial and unwillingness to change truthful testimony that, among other things, links First Lady Hillary Clinton to the hiring of Craig Livingstone and Filegate.
15. On July 16, 1996, two FBI agents arrived at my home. The FBI agents began to question me about the three-year-old insert (Exhibit 1) memorializing my interview with Bernard Nussbaum. During the course of the interview, the FBI agents asked me approximately thirty times if I had any notes of my three-year-old interview with Bernard Nussbaum. I repeatedly informed them that I had not maintained these notes, as per FBI procedures.
16. Also during the course of the interview, the FBI agents repeatedly told me that President Clinton, Hillary Rodham Clinton and former White House Counsel Bernard Nussbaum had contradicted my three-year-old insert (Exhibit 1). The FBI agents pitted my credibility against the credibility of President Clinton, Hillary Rodham Clinton and White House Counsel Bernard Nussbaum approximately four times. While the stated purpose of the interview was to "clarify" certain issues, my efforts to provide clarification were rebuffed by the FBI agents. Based on their actions and on my experience as a law enforcement officer, I felt the FBI agents were sent to my home and attempted to intimidate me

Id. at para.10-17. This is a textbook example of gross witness intimidation and obstruction of justice.

The Clinton White House has been linked to yet another effort to punish material witnesses to Filegate. The Clinton Administration retaliated against two (2) career Secret Service agents by instigating a criminal investigation of the agents, and then lied about the investigation, after the agents exposed the falsity of the "bad secret service lists" excuse for Filegate.

In July 1996, the agents, John Libonati and Jeffrey Undercoffer, contradicted earlier Clinton White House explanations that alleged errors in the Secret Service’s access lists led to the wrongful acquisition of the FBI files. See Ruth Larson and George Archibald, "Probe of Secret Service Men Who Testified on Hill Questioned," The Washington Times, Oct. 26, 1996, attached as Exhibit ___; see also, Section ___, supra. A few months later, Rep. Cardiss Collins (D-Ill.), sent a letter to Treasury Secretary Robert E. Rubin, requesting that he "direct the Inspector General to investigate the preparation" of the agents’ testimony. See George Lardner Jr., "Two Secret Service Agents Who Testified About FBI Files Are Under Investigation," The Washington Post, Oct. 25, 1996, attached as Exhibit __. Subsequently, the agents were told that they were under "potentially criminal" investigation by the Clinton Treasury Department’s Inspector General. Id.

When asked about the Treasury investigation, Clinton White House Associate Special Counsel Mark Fabiani said that "this is the first time we heard about the matter." Id. Other than seeing the letter, he said, "we don’t know anything about it and don’t have anything to do with it." Id. But Fabiani’s lie was exposed when it was reported that Collins’ letter was drafted by her staff counsel and Jonathan R. Yarowsky, a lawyer in the Clinton White House Counsel’s Office. See Ruth Larson and George Archibald, "Probe of Secret Service Men Who Testified on Hill Questioned," The Washington Times, October 26, 1996, attached as Exhibit ___.

A month later, Clinton Treasury Department Inspector General Valerie Lau told a Senate subcommittee that her office was not conducting a "potentially criminal" investigation of the two agents. See Ruth Larson, "Treasury IG Denies Misconduct in Probing Secret Service Agents," The Washington Times, December 3, 1996, attached as Exhibit ___. But four (4) months later, after a contradictory Treasury e-mail surfaced showing that the matter originally was listed as a criminal investigation into whether the agents committed perjury, Lau was forced to acknowledge that her previous testimony was wrong. See Jennifer Batog, "Treasury Inspector General Acknowledges Erroneous Information," Associated Press, Apr. 17, 1997, attached as Exhibit __.

By that time, the investigation of the agents had closed. Id. Lau resigned in disgrace less than a year later. See Ruth Larson, "Treasury Official Lau Quits to Cheers," The Washington Times, Jan. 17, 1998, attached as Exhibit __. The House Committee concluded that when the agents "testified before the committee on July 17, 1996, it became clear that the Secret Service was not culpable for the ‘egregious violations of privacy’ that took place in the Office of Personnel Security." See Exhibit 10 at 95. The Clinton Administration’s response to this testimony was to try to throw these honest secret service agents in jail.

These and other instances of cover-up raise strong adverse evidentiary inferences that Filegate occurred, under the supervision and direction of Mrs. Clinton and her minions in the White House Counsel’s Office and OPS.

The Court must, respectfully, reject the Clinton Justice Department’s certification outright, not only because it is fraudulent, but also because of the litigation abuse demonstrated at Plaintiffs’ Rule 30(b)(6) deposition of Helene Goldberg. Ms. Goldberg’s deposition made clear that either: (1) the Clinton Justice Department had no factual basis for its certification; and/or (2) the Clinton Justice Department failed to comply in good faith with Plaintiffs’ Rule 30(b)(6) subpoena duces tecum. Either way, the deposition demonstrated obvious litigation misconduct, and the Court must reject the certification outright and deny substitution as a sanction, either sua sponte under Rule 11 of the Federal Rules of Civil Procedure, 18 U.S.C. § 1927, or the Court’s inherent authority.

Federal employees are not immune from common law tort claims -- like Plaintiffs’ invasion of privacy claims -- if their alleged misconduct was not properly within the scope of their federal employment. See Haddon v. United States, 68 F.3d 1420, 1422-23 (D.C. Cir. 1995). If they were acting outside the scope of their employment -- as Nussbaum, Livingstone and Marceca were in this case -- then the United States Government may not substitute itself for them as a party defendant. Id. at 1423.

The Federal Employees Liability and Tort Compensation Act of 1988, commonly known as the Westfall Act, was created in response to the Supreme Court’s decision in Westfall v. Erwin, where the Court held that federal employees enjoyed immunity from suit if their conduct was both within the scope of their employment, and discretionary in nature. 484 U.S. 292, 299 (1988). The Westfall Act eliminated the "discretionary" requirement, Haddon, 68 F.3d at 1422-23, and provided for the substitution of the United States as the sole defendant if the Attorney General certified that the employee was acting within the scope of employment at the time of the incident which gave rise to the action. 28 U.S.C. § 2679(d)(1) & (2).

However, the Attorney General’s certification, even if bona fide, is not conclusive. As this Court has ruled, it is subject to de novo review by the courts:

June 12, 1997 Memorandum Opinion, citing Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994). Moreover, and most importantly, the Attorney General’s certification is not entitled to "any particular evidentiary weight." Kimbro, 30 F.3d at 1509.

Whether the individual Defendants’ conduct was within the scope of their employment is a factual determination made under D.C. law. Haddon, 68 F.3d at 1423. The Court of Appeals for the District of Columbia looks to Restatement (Second) of Agency (1957) (the "Restatement") for the applicable standards. Id. citing Mosely v. Second New St. Paul Baptist Church, 534 A.2d 346, 248 n. 4 (D.C. 1987). According to the Restatement:

Restatement § 228; see also Haddon, 68 F.3d at 1424. Courts most commonly focus on prongs (1) and (3), and the District of Columbia courts and the District of Columbia Circuit have held repeatedly that employer liability is precluded unless every part of the test is passed. See id.

Not all acts of the sort an employee was hired to perform and committed on the employer’s premises during business hours are within the scope of the employee’s employment. If this were the case, the third prong of the Restatement test would have no meaning. Since the courts continue to give meaning to the third prong of the Restatement test, this reasoning must be wrong. See District of Columbia v. Coron, 515 A.2d 435, 438 (D.C. 1986) (rejecting a claim that police department is liable for actions of police officers whenever on duty).

The District of Columbia case authority most analogous to this case is Boykin v. District of Columbia, 484 A.2d 560 (D.C. 1984). There an educator responsible for teaching blind and deaf students took one of his charges for a walk. This was the sort of thing he was hired to do, as some students needed training in avoiding obstacles. He did not, however, do any teaching on this occasion. Instead, he sexually assaulted the student in the school cafeteria. The court found this act to be outside the scope of his employment because it was "in no degree committed to further the school’s interests." Id.

As the District of Columbia Court of Appeals likewise stated in Penn Central Transportation Co. v. Reddick:

389 A.2d 27, 29-30 (D.C. 1979) (citations omitted).

Thus, and as this Court has already ruled with regard to any hint of politics being involved in the Clinton White House’s acquisition and maintenance of FBI background information on over 900 former Reagan and Bush administration appointees, employees and others:

See June 12, 1997 Memorandum Opinion at 18. The Court’s June 12, 1997 ruling mirrors that of the Honorable Charles R. Richey in Center on Corporate Responsibility v. Shultz, 368 F. Supp. 863 (D.D.C. 1973), a Nixon-era case involving political misuse of the Internal Revenue Service, in which the Court found:

Id. at 871 (emphasis added). Clearly, any improper political involvement in governmental activities must render the activities in question "null and void" and "outside the law," and deprives the individual officials involved of any legal protection or immunity.

This is exactly what happened in this case. Rather than acting on behalf of the United States when they obtained, reviewed and maintained the FBI files of Plaintiffs and over 900 other former Reagan and Bush administration appointees, employees and others, Nussbaum, Livingstone and Marceca acted in furtherance of Mrs. Clinton’s and her husband’s personal, political agendas. Indeed, this is the only logical and reasonable conclusion that can be drawn from the detailed factual recitation set forth above, including but not limited to the following basic facts:

In making its determination, the Court is entitled to rely on -- and should give weight to -- the findings and conclusions of the House Committee. See Hobson, 556 F. Supp. at 1181; see also Beech Aircraft Corp.,488 U.S. at 170. The Court should draw strong if not definitive adverse factual inferences from Marceca’s refusal to answer and invocation of the Fifth Amendment privilege against self-incrimination, as well as from witnesses’ disingenuous claims that they did not recall events that any reasonable person should have recalled. See Baxter, 425 U.S. at 318-20; Chapin, 515 F.2d at 1280-84; Gebhard 422 F.2d at 287-88.

Thus, the facts adduced to date through discovery, as well as publicly available evidence and findings and conclusions reached by the House Committee, indicate that the conduct of Nussbaum, Livingstone and Marceca in this case was for partisan political purposes, and not to further the legitimate interest of the United States. Indeed, as this Court has already recognized, "[s]uch alleged conduct is not acting in the interest of the United States as an employer." See June 12, 1997 Memorandum Opinion at 18. It would be a miscarriage of justice, and certainly not in the public interest, particularly in terms of having a deterrent effect in the future, to not hold Nussbaum, Livingstone and Marceca individually liable for their violations of the Constitutionally protected privacy rights of American citizens.

Because Plaintiffs’ common-law invasion of tort claims join as Defendants three (3) former employees of the federal government -- Nussbaum, Livingstone, and Marceca -- and one (1) private individual who was not a federal government employee -- Mrs. Clinton -- a unique procedural issue arises were the Court to decide the substitution issue itself.

Where the scope of employment inquiry solely involves individuals who are employees of the U.S. Government, the procedure followed in this Circuit is prescribed in Kimbro:

Kimbro, 30 F.3d at 1509 (citation omitted). In Kimbro, the Court recognized that in cases such as this case, where the underlying merits and issues surrounding scope of employment coincide, pre-trial determination by the Court of the scope of employment issue may result in a determination of a material factual issue bearing on the merits of a plaintiffs’ claim, or even on the merits of a plaintiff’s entire claim, thereby depriving the plaintiff of the 7th Amendment right to a jury trial.⁴⁴ But, as the Court in Kimbro explained:

Kimbro is not instructive for purposes of this case, however, because Plaintiffs have named both a private citizen -- Mrs. Clinton -- and former federal employees -- Nussbaum, Livingstone and Marceca -- as defendants, and common to Plaintiffs’ claims against all of these individuals is the issue of whether FBI files and other materials were being misused for partisan political purposes. As the Court itself has recognized, this same issue lies at the heart of the substitution issue. See June 12, 1997 Memorandum Opinion at 18 ("such alleged conduct is not acting in the interest of the United States as an employer"). Thus, were the Court to decide for itself, in the course of ruling on the attempted substitution, the issue of whether the Clinton White House misused FBI files and other materials as partisan political purposes, then Plaintiffs would be denied their right to have a jury consider this issue on the merits vis-a-vis Mrs. Clinton. See, e.g., Parklane Hosiery v. Shore, 439 U.S. 322 (1979); Montana v. United States, 440 U.S. 147 (1979).

The only way this potential infirmity can be avoided is by adopting the approach mandated by the Supreme Court in Lytle v. Household Manufacturing, Inc., 494 U.S. 545, 550 (1990), Dairy Queen, Inc. v. Wood, 369 U.S.469, 472-73 (1962), Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 508-11 (1959), and by the D.C. Circuit in Material Supply International, Inc. v. Sunmatch Industrial Co., 146 F.3d 983, 987-89 (D.C. Cir. 1998). Specifically, the Court must not rule on the scope of employment issue until after Plaintiffs have had the opportunity for a jury to consider their claim against Mrs. Clinton. This would mean only postponing determination of the scope of employment issue until trial on the merits with respect to Nussbaum, Livingstone and Marceca. Only in this way can Plaintiffs’ fundamental, constitutional right to a trial by jury be preserved. Lytle, 494 U.S. at 550; Dairy Queen, Inc., 369 U.S. at 472-73; Beacon Theaters, Inc., 359 U.S. at 508-11, Material Supply International, Inc., 146 F.3d at 987-89.

Plaintiffs emphasize that the foregoing considerations only come into play if the Court finds itself unable to resolve the scope of employment issue in the their favor based upon the compelling existing record. For reasons set forth above, they believe the Court can do just that, after leave is granted to depose Mrs. Clinton and Leslie Gail Kennedy.

Plaintiffs seek to certify this action as a class action under the Federal Rules of Civil Procedure. They filed their Complaint on September 12, 1996 on behalf of themselves and all other former U.S. Government employees whose FBI files, or information therein, were improperly disclosed by the FBI and improperly acquired and maintained by the Clinton White House. See Complaint ¶ at 16. In their Complaint, Plaintiffs allege that this case is properly maintained as a class action under Fed. R. Civ. P. 23 because questions of law and fact common to the members of the class predominate over those affecting only individual members, and that a class action is far superior to other available methods of adjudicating this controversy. See id. at ¶¶ 14-20.

Under Rule 23, a class action is appropriate when each of the prerequisites of Rule 23(a) are met, and when the requirements of Rule 23(b)(1), (2), or (3) are met. The Rule 23(a) prerequisites to a class action are:

Fed. R. Civ. P. 23(a).

Rule 23(b) provides three alternatives, one of which must be satisfied in addition to the prerequisites stated above. Plaintiffs’ complaint and other pleadings in this action cite Rule 23(b)(3) as the basis for class certification. Rule 23(b)(3) requires that for class certification, the Court find that the questions of law or fact common to the members of the class predominate over those affecting only individual members, and that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. Matters pertinent to the findings include:

Fed. R. Civ. P. 23(b)(3).

The U.S. Supreme Court provides that "the class action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23." Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). Importantly, the instant action is based, in part, on the Privacy Act, a federal law enacted in 1974 to prevent the misuse of information in government files. See 5 U.S.C. § 522a et seq. Class action treatment is appropriate in this case, and has been upheld in other Privacy Act cases. See Wolman v. United States, 501 F. Supp. 310 (D.D.C. 1980/) (Privacy Act class action challenging use of social security numbers for Selective Service System). In addition, class action treatment is appropriate where the putative class is identifiable by reference to the objective conduct of the parties. See, e.g., Grossman v. Waste Management, Inc., 100 F.R.D. 781, 784 (N.D.Ill. 1984).

"While there is no minimum number of members required to make a certifiable class, a class of 250 people certainly satisfies the numerosity requirement." Johns v. Rozet, 141 F.R.D. 211, 216 (D.D.C. 1992), citing EEOC v. Printing Industry of Metropolitan Washington, D.C., Inc., 92 F.R.D. 51, 53 (D.D.C. 1981); Lewis v. National Football League, 146 F.R.D. 5, 8-9 (D.D.C. 1992) (Lamberth, J.) (numerosity requirement "easily satisfied" with 250 class members). To be certified as a class action, it is not necessary to show the exact number of class members, but rather only that the number is sufficiently large that it would be extremely difficult or inconvenient to join all members. See Franklin v. Barry, 909 F. Supp. 21, 30 (D.D.C. 1995) (class action certified for 200 Hispanic prisoners). As few as 25-30 class members can raise the presumption that joinder is impracticable, and that therefore a class should be certified. See EEOC, 92 F.R.D. at 53, citing 1 Newberg, Class Actions § 1105b at 174 (1977).

In this case, the class of 900 potential plaintiffs easily satisfies the requirement that individual joinder is impracticable. Franklin, 909 F. Supp. at 20; Lewis, 146 F.R.D. at 8-9; Johns, 141 F.R.D. at 216; EEOC, 92 F.R.D. at 53.

Fed. R. Civ. P. 23(a) requires that there be questions of law or fact common to the class. Fed. R. Civ. P. 23(b)(3), under which Plaintiffs seek certification as a class, requires that the common issues of law or fact predominate over those unique to individual members.

It should go without saying that there are numerous common questions of fact and law in this case. Plaintiffs are former Reagan and Bush Administration appointees, employees and others. They are all victims of Filegate. The factual basis for their claims all arise from the same underlying unlawful conduct -- the Clinton White House’s unlawfully obtaining, maintaining and misusing confidential FBI background information and materials on former Reagan and Bush Administration appointees, employees and others. The results of the discovery undertaken by Plaintiffs in the time since discovery was unstayed only serve to confirm this. Moreover, the legal bases for Plaintiffs’ claims are identical -- the Privacy Act and the common law tort of invasion of privacy. Thus, not only are there questions of law and fact common to the class, but those issues clearly predominate.

Importantly, as this Court itself previously held in Brown v. Pro Football, Inc., 146 F.R.D. 1 (D.D. C. 1992) (Lamberth, J.), there is no requirement that the injuries suffered by each class member be identical with each other or with those of the class representatives, in order for a class to be certified. In Brown, the defendants attempted to argue that different damages suffered by various plaintiffs would defeat class certification. The defendants’ argument was soundly rejected by this Court:

146 F.R.D. at 4; see also Franklin, 909 F. Supp. at 31; Littlewolf v. Hodel, 681 F. Supp. 929, 935 (D.D.C. 1988), aff’d, 877 F.2d 1058 (D.C. Cir. 1989); Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980).

Indeed, if differences in damages suffered between class plaintiffs defeated class certification, the procedural device would be functionally eliminated, since damages are almost always different among different people. No two people in this world are identical, and there will necessarily be differences in the damages suffered by different people. As this Court previously ruled in Brown:

Brown, 146 F.R.D. at 4 (class action challenging professional football league’s salary restraints). Courts can properly assess damages on an individual basis. "[A]lthough there are necessarily individual issues in the damages determinations, there is a common link among the class members which will serve to justify class action status." Id.

Here, Plaintiffs seek damages for the emotional distress and mental anguish they suffered, as well as the out-of-pocket expenses and loss of time they necessarily incurred investigating Defendants’ unlawful conduct, among other damages. While Plaintiffs respectfully submit that they and all of the class members thus suffered similar categories of damages, it is also important to note that the Privacy Act itself contains a minimum, statutorily-mandated award of $1,000 for violations of its provisions. 5 U.S.C. § 552a(g)(4)(A). Thus, even if there are individual differences in the damages that each Filegate victim has suffered -- and Plaintiffs respectfully submit that the damages are all of a similar nature or type -- certification as a class is proper. Brown, 146 F.R.D. at 4; see also Franklin, 909 F. Supp. at 31; Littlewolf, 681 F. Supp. at 935; Coley, 635 F.2d at 1378.

In this case, class members have suffered similar types of injuries from the violations of their privacy by the Defendants, including emotional distress, mental anguish, embarrassment, and damage to their reputations, and the common issues of fact and law predominate over any differences in the degrees to which the different class members have been injured. The extent of each class member’s injury will depend on what was done with the information received from his or her FBI file once it was disclosed by the FBI to the Clinton White House and the individual Defendants. Already, Plaintiffs have established FBI file misuse -- with compelling direct and circumstantial evidence. That the damage to Plaintiffs, and putative Plaintiffs such as Billy Dale, Linda Tripp and Chris Emery, might be greater than some other Plaintiffs, is a matter which will be presented at trial.

In this case, class certification is also appropriate because the claims of the named Plaintiffs (or class representatives) are also typical of those of the other class members. "A representative’s claim is typical if it arises from the same event, practice, or course of conduct that gives rise to the claims of the other class members, and if the claims of the representatives are based upon the same legal theory." Johns, 141 F.R.D. at 216, citing Covelo Indian Community v. Watt, 551 F. Supp. 366, 377 (D.D.C. 1982). See also In re Asbestos School Litigation, 104 F.R.D. 422, 430 (E.D. Pa. 1984). A claim is considered typical "when the ‘essence’ of the allegations concerning liability, and not the particularities, suggest adequate representation of the interests of the proposed class members." Peil v. Speiser, 97 F.R.D. 657, 659 (E.D. Pa. 1983).

In this case, the claims of Plaintiffs and all other class members arise out of the same course of conduct on the part of Defendants, and are based on the same legal theories, namely violations of the Privacy Act and the common law tort of invasion of privacy. Additionally, the "essence" of Plaintiffs’ and all class members’ claims is that their privacy was violated by the actions of the Defendants. Thus, the requirement that the claims of the named Plaintiffs be typical of the claims of the class members is plainly satisfied.

Moreover, the existence of separate counterclaims or defenses against various plaintiffs does not defeat typicality so long as the common issue of liability exists. Johns,141 F.R.D. at 216, cf. Fleck v. Cablevision VII, Inc., 763 F. Supp. 627 (D.D.C. 1991) (if unique defense as to one representative exists and appears likely to become a focus for the litigation, that can be grounds for finding that claims lack typicality). Here, there is no such defense or counterclaim that could be argued as to certain class members.

There is also more than adequate representation of the class members in this case. "Adequate representation" depends on two (2) factors: (1) the ability of the representative plaintiffs and their counsel to competently and vigorously prosecute the lawsuit; and (2) the lack of any conflict of interest between the representative plaintiffs and other class members. See Lewis, 146 F.R.D. at 9-10 (denying class certification only because counsel had conflict of interest). Moreover, the burden to demonstrate that representation will be inadequate is on the party opposing class certification. Johns, 141 F.R.D. at 217.

As the Court must know, after the more than three (3) years that this case has been in litigation, the representative plaintiffs and their counsel have and will continue to competently and vigorously will prosecute this lawsuit. Plaintiffs’ lead counsel, one of whom ironically is a former Justice Department prosecutor, have many years experience litigating against the federal government and its agents, and are highly competent to prosecute this particular lawsuit. Plaintiffs’ other counsel also have significant experience litigating cases to protect and preserve the vital interests and rights of the American people -- such as the privacy rights in this case -- and will not hesitate to fully and vigorously advocate on behalf of all the class members. There can be no claim -- much less any evidence -- to the contrary. Therefore, this prong of class certification has been easily met.

In sum, this is a textbook case for class certification.

A review of the evidence obtained in only the interim phase of discovery already shows that, indeed, Filegate occurred. Orchestrated and implemented by Defendant Hillary Rodham Clinton and her minions in The White House Counsel’s Office and OPS, this scandal represents the largest violation of privacy rights in American history.

Based on the facts and the law, not only would a miscarriage of justice result if the individual Defendants Livingstone, Marceca and Nussbaum are allowed to escape individual liability for the damages they have caused, but it would send yet another signal to the American people that there is no price to be paid for violating the law.⁴⁴ Thus far, only those seeking to tell the truth about the Clinton scandals – such as Linda Tripp in Filegate and Nolanda Hill in Chinagate – have had "the book thrown at them" by a politically corrupt Democrat political apparatus. The criminal justice system having failed, as in the O. J. Simpson case, there must now be accountability under the civil justice system. To allow this to occur, the individual Defendants must be made to answer for their own conduct.

Finally, based on the facts and the law, this is a textbook case for class certification, if there ever was one.

For all of these reasons, Plaintiffs respectfully request that the Clinton Justice Department’s substitution certification be rejected, and a class certified of the following persons at this time: those individuals who worked in the Reagan and Bush administrations whose FBI background materials were improperly requested by The White House Office of Personnel Security.

Respectfully submitted,

JUDICIAL WATCH, INC.

__________________________

Larry Klayman, Esq.

DC Bar No. 334581

__________________________

Paul J. Orfanedes, Esq.

DC Bar No. 427916

__________________________

Deborah E. Berliner, Esq.

DC Bar No. 422238

__________________________

Brett M. Wood, Esq.

DC Bar No.

Suite 725

501 School Street, S.W.

Washington, DC 20024

(202) 646-5172

Counsel for Plaintiffs

__________________________

Thomas J. Fitton,

President, Judicial Watch, Inc.

Not a Member of the Bar