IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARA LESLIE ALEXANDER, et al., )
)
Plaintiffs, )
)
v. ) Civil Action Nos.
) 96-2123/97-1288 (RCL)
FEDERAL
BUREAU OF )
INVESTIGATION,
et al., )
) CONSOLIDATED
ACTIONS
Defendants. )
____________________________________)
)
JOHN
MICHAEL GRIMLEY, et al., )
)
Plaintiffs, )
)
v. )
)
FEDERAL
BUREAU OF )
INVESTIGATION,
et al., )
)
Defendants. )
____________________________________)
PLAINTIFFS’
PROPOSED FINDINGS OF FACT
Plaintiffs
respectfully submit the attached Proposed Findings of Fact concerning the
evidentiary hearing on obstruction, perjury, and threats concerning
non-produced e-mail of the Clinton-Gore White House.
A. The
Automated Records Management System Was Created By Daniel Barry and John
Podesta to Help Records Manage Clinton-Gore White House E-Mail.
B. Court
Allows Discovery In Filegate, And Clinton-Gore White House Obstruction Begins.
C. Clinton-Gore
White House Obstructs E-mail Discovery with False Barry Testimony About
Reliability of ARMS System.
D. Daniel
Barry -- The Key Man in Clinton-Gore White House E-Mail Searches and Coverup.
E. Barry
Discovers Mail2 Problem in Midst of Lewinsky Crisis.
F. Barry,
Clinton-Gore Administration Lawyers Prepare and Submit False Testimony.
G. Court
Unknowingly Relied on False Clinton-Gore White House Testimony In Planning
E-mail Discovery.
H. Mail2
Problem “Rediscovered” In May/June 1998.
I. To
Keep the E-mail Hidden from the Court, the Office of Independent Counsel, and
Congress, Clinton-Gore White House Officials Threatened Northrop Grumman
Contractors.
J. Clinton-Gore
White House Threats Obstructed Court’s Processes and Testimony of Witnesses.
K. As
a Result of the Threats and Fraudulent Secrecy Requirements Imposed on Some Who
Knew about the Mail2 Problem, E-mail Evidence Was Lost Forever.
L. Daniel
Barry and Clinton-Gore Justice Department Lawyers Present False Deposition
Testimony to This Court.
M. Top
Clinton-Gore White House and Justice Department Officials Knew of Mail2 But Did
Nothing to Correct the Problem or Alert the Court and Other Proper Authorities.
N. Failures
of Memory, Contradictory Testimony By Clinton-Gore White House Lawyers Belie
Claims of Good Faith Concerning E-mail Scandal.
O. The
Fact That Lower Level Clinton-Gore White House Employees and Contractors Knew
of Mail2’s Continuing Impact on Document Production, Shows Top Officials and
Lawyers Knew As Well.
P. Plaintiffs
Repeatedly Put Clinton-Gore White House and Department of Justice on Notice
Concerning Mail2.
Q. Northrop
Grumman Officials and Their Counsel Were Notified of the Threats, Obstruction
of Justice, And Worked With The
Clinton-Gore White House To Coverup These Ongoing Crimes
R. Despite
Warnings from Plaintiffs and Others about Mail2, Clinton-Gore White House
Continued to Present False Testimony and Withhold Information from the Court,
Congress, and the Office of Independent Counsel.
S. Despite
Being on Notice, Barry, Clinton-Gore White House, and Justice Department
Continue to Obstruct Justice and Commit Perjury By Filing An Additional False
Declaration With This Court.
T. Clinton-Gore White House Lied To Court
About Hillary Clinton’s E-mail.
U. Whistleblowers
Expose Clinton-Gore White House’s Obstruction of Justice, False Testimony.
V. Obstruction
of Justice Continues.
W. The
President and Mrs. Clinton Must Have Known of the E-Mail Coverup.
A. The Automated Records
Management System Was Created By Daniel Barry and John Podesta to Help
Records Manage Clinton-Gore White House E-Mail.
1.
Daniel “Tony”
Barry (hereinafter “Barry”) was hired by the Office of Administration
(hereinafter “OA”) as a computer specialist in the Information and Systems
Technology Division (hereinafter “IS&T” or “IS&T Division”). See E-mail Hearing Testimony of
Daniel Barry (hereinafter “Barry Testimony”), August 3, 2000 Tr. at 24, 32-33.
2.
In 1993, Barry
reviewed the ruling and agreements in Armstrong v. EOP, requiring
the Executive Office of the President (hereinafter “Clinton-Gore White House”
or “EOP”) to put an electronic records management system in place. See Barry Testimony, August 3, 2000
Tr. at 33-34.
3.
John Podesta,
who is now White House Chief of Staff,
helped design and implement the ARMS system and was heavily involved in
negotiating the settlement of the Armstrong litigation. See
E-mail Hearing Testimony of John Podesta Testimony (hereinafter “Podesta Testimony”),
October 10, 2000 Tr. at 11-16. See
also E-mail Hearing Testimony of Jason Baron (hereinafter “Baron Testimony”)
August 31, 2000 Tr. at 33-34.
4.
Podesta
recommended the filing of false court declarations with a federal court in the Armstrong
litigation. See Hearing Exhibit
(hereinafter “H. Ex.”) 86, Declaration of Jane Weaver at ¶5.
5.
John Podesta
had been active in the management of the Armstrong litigation and
formulating guidelines for storing electronic records pursuant to the
Presidential Records Act. He worked
with Jason Baron, Esquire in the Justice Department who was handling the Armstrong
case. See Podesta Testimony,
October 10, 2000 Tr. at 11-13.
6.
Podesta
participated in the coordination of efforts to develop a more sophisticated
system for the archival of e-mail.
These efforts resulted in the development of the ARMS system. See
Podesta Testimony, October 10, 2000 Tr. at 13.
7.
This system was
designed to receive and archive electronic messages and was required by both
the Presidential Records Act and the Federal Records Act. See Barry Testimony, August 3, 2000
Tr. at 45-46.
8.
In the middle
of 1993, after reviewing information on the legal ruling in Armstrong v. EOP,
Barry wrote a functional requirements document for what became the Clinton-Gore
White House’s Automated Records Management System (hereinafter “ARMS” or “ARMS
system”), which he presented to OA Counsel for review. See Barry Testimony, August 3, 2000
Tr. at 33, 48-49.
9.
After receiving
approval for the concept, Barry began development of ARMS. ARMS began operation in July, 1994. See Barry Testimony, August 3, 2000
Tr. at 34.
10.
Barry
conceived, designed, developed, wrote, implemented and tested ARMS, and
currently manages ARMS. By his own
admission, he is the most expert person to talk to about ARMS. See Barry Testimony, August 3, 2000
Tr.
11.
ARMS stores
three types of records: electronic mail (hereinafter “e-mail”), calendars and
pagers. See Barry Testimony,
August 3, 2000 Tr. at 42.
12.
At the time
that ARMS became operational, the Clinton-Gore White House was using the
All-in-One e-mail system. In 1997 the Clinton-Gore White House
converted from the All-in-One e-mail system to the Lotus Notes e-mail
system. At the same time, a separate
software program, known as the Notes ARMS Interface was developed which allowed
Lotus Notes e-mails to be communicated to and stored on ARMS. See Barry Testimony, August 3, 2000
Tr. at 43.
B. Court
Allows Discovery In Filegate, And White House Obstruction Begins.
13.
In its Memorandum Opinion and Order of June 12, 1997, this Court deferred ruling on
Plaintiffs’ Motion for Class Certification until Plaintiffs had had an
opportunity to take discovery. See Memorandum Opinion, June 12, 1997, at
1.
14.
In order to
investigate Rule 23(a) requirements of commonality, numerosity, typicality of
claims, and adequacy of representation, this Court allowed discovery as to
Plaintiffs’ Privacy Act claims (Id. at 7-8, 14-15), the substitution of
the United States for defendants Nussbaum, Livingstone, and Marceca (Id.
at 18), and the definition of classes and subclasses for certification which
was to include how files were improperly acquired by the Clinton-Gore White
House Id. at 19-21.
15.
On August 12,
1997, this Court granted Plaintiffs an initial six months in which to complete
all discovery relating to class certification and scope of employment
issues. See Memorandum Opinion,
August 12, 1997, at 1.
16.
The Court also
provided for “an additional period of discovery” after resolution of the class
certification and substitution issues. Id. at
2.
17.
Plaintiffs
filed their First Request for Production of Documents on October 9, 1997.
18.
On November 10,
1997, the Clinton-Gore White House produced documents in response to this First
Request for Production.
19.
Among the
documents the Clinton-Gore White House purportedly searched to respond to the
First Request for Production were documents produced to the Office of
Independent Counsel for its Filegate investigation. These documents included Clinton-Gore White House e-mail produced
by Daniel “Tony” Barry (hereinafter referred to as “Barry”). See Barry Testimony, August 21, 2000
Tr. at 36-39; see also March 4, 1999 Declaration of Sally Paxton at ¶3,
attached as Exhibit B to Motion by Executive Office of the President For a
Protective Order, H. Ex. 19.
20.
During a status
conference on December 19, 1997, the Court sharply rebuked the Clinton-Gore
White House for attempting to engage it what it described as “rolling
production” of documents by which it purported to produce documents to
Plaintiffs as they located them. See
Transcript of December 19, 1997 Status Call at 6-9.
C. Clinton-Gore White House
Obstructs E-mail Discovery with False Barry Testimony About Reliability of
ARMS System.
21.
At a January
13, 1998 status conference, Clinton-Gore Justice Department lawyer James
Gilligan represented that e-mail after July 1994 was being records managed
properly. See January 13, 1998
Transcript at 55.
22.
On January 16,
1998, Plaintiffs served a Rule 30(b)(6) Notice of Deposition on the
Clinton-Gore White House concerning “the system of files maintained and other
things...including electronic mail...” Notice of Rule 30 (b)(6) Deposition at 1.
23.
Searching
e-mails related to persons who were involved in or had made allegations
regarding the many scandals of the Clinton-Gore White House was a routine task
frequently assigned to Daniel Barry by White House Counsel. See Barry Testimony, August 21, 2000
Tr. at 31, 81, 111, 112, 116.
24.
The ARMS system
was used to perform these searches. See Barry Declaration of July 9,
2000 (H. Ex. 42).
25.
Barry testified
that “everybody” at the Clinton-Gore White House knew ARMS was not capturing
e-mail properly. See Barry
Testimony, August 3, 2000 Transcript at 150.
26.
In addition to
the Mail2 and Letter D “problems” (described below) which were kept from this
Court, numerous other material failures by ARMS to records manage e-mail were
also kept hidden from it. Exhibit 64
from the evidentiary hearing shows the massive scope of the ARMS system
failures. In this exhibit, which
contains over five-hundred pages and is labeled “Barry E-mails Documenting
Problems with the Notes/ARMS interface Back to 1996,” e-mail specialist Daniel
Barry documents exhaustively several persistent problems with the ARMS
system. See generally H.
Ex. 64.
27.
Barry
documented these problems in hundreds of e-mails to his superiors and
colleagues (including OA Counsel). See,
e.g., H. Ex. 64 at E-2355-2366, E-2422-2423, and E‑2441.
28.
Barry knew, at
least as early as February 27, 1996, that the “interface” which allowed ARMS to
records manage e-mail “was not robust enough for a production environment. It is going to need redesign to make it
so.” See H. Ex. 64 at E-2123.
29.
Barry
acknowledged on September 13, 2000 the loss of 3,000 e-mails from the
Clinton-Gore White House computer systems.
See H. Ex. 64 at E-2197.
30.
In 1997, there was a loss of 10,000 e-mails from the
Clinton-Gore White House computer systems.
See H. Ex. 64 at E-2234, E-2301; see also H. Ex. 9-17.
31.
Barry still
cannot account for these missing e-mails.
See Barry Testimony, August 3, 2000 Tr. at 55.
32.
The Court did
not become aware and was never advised by the Clinton-Gore White House of these
10,000 lost e-mail until the subject evidentiary hearing. Id. at 55-56.
33.
Barry and the
Clinton-Gore White House had knowledge that ARMS, as early as August 28, 1997,
failed to properly place e-mail in proper agency “buckets.” See, e.g., H. Ex. 64 at E-2152-2155, E-2162, E-2200,
E-2402-03, and E-2410-2411; see also
H. Ex. 9-21; E-mail Hearing Testimony of Kathleen Gallant (hereinafter
“Gallant Testimony”), August 1, 2000 Tr. at 154-57.
34.
ARMS failed to
capture material information such as whether a particular document was read or
unread by an e-mail recipient and any users to whom an e-mail was “blind carbon
copied.” The Clinton-Gore White House
even knew that ARMS failed to capture the text of certain e-mail messages. See H. Ex. 64-E-2152-2155, 9-35,
Barry Testimony, August 21, 2000 Hearing Transcript at 27-29.
35.
ARMS also
failed to records manage the Office of the Vice President’s e-mail. See H. Ex. 64 at E-2134.
36.
Plaintiffs had
never excluded the Office of the Vice President’s e-mail from any document
request. (It was not until June 5,
2000, that the Court ruled that Plaintiffs could not have access to Vice
Presidential e-mail which related to Filegate.
See June 5, 2000 Memorandum Opinion at 35-36. In response to the Court-ordered search of
the non-records managed e-mail, the Clinton-Gore White House produced one
e-mail which showed that staff in the Vice President’s office received
information about the Filegate scandal.)
37.
The President’s
Assistant for Management and Administration, Mark Lindsay, admitted that
generally the entire Clinton-Gore White House computer system (which would
necessarily include ARMS) was a nightmare.
See E-mail Hearing Testimony of Mark Lindsay (hereinafter “Lindsay
Testimony”), August 23, 2000 Tr. at 152-153.
38.
In 1997, Howard
“Chip” Sparks, a computer specialist at the Clinton-Gore White House,
complained to his colleague Barry and many others in OA about the failure of
ARMS to capture e-mails – and the resulting negative impact on searching for
document requests. See E-mail
Hearing Testimony of Howard Sparks (hereinafter “Sparks Testimony”), August 16,
2000 Tr. at 71-78.
39.
Barry
acknowledged that he had a conversation with Sparks about the fact that ARMS
did not contain certain e-mail information that it should have. See Barry Testimony, August 21, 2000
Tr. at 26-29.
40.
Barry
acknowledged to the Court that ARMS does not contain certain e-mail information
that it should have. Id.
41.
Barry
acknowledged that he did not tell the Court that ARMS did not contain certain
e-mail information that it should have.
See Barry Testimony, August 21, 2000 Tr. at 29.
42.
Based on the
volume of the evidence, it is inconceivable that Clinton-Gore White House
Counsel and their Department of Justice lawyers in this case were not informed
about and did not have know of the substantial problems with ARMS, particularly
since they consulted with Barry and others for lengthy periods. See infra.
D. Daniel Barry -- The Key
Man in Clinton-Gore White House E-Mail Searches and Coverup.
43.
Barry conducted
searches for all of Harold Ickes’ schedules at the request of Dimitri Nionakis,
Associate Counsel to the President; concerning Karl Racine and Bruce Overton at
the request of Mike Imbroscio;
concerning Bayonne Nevis at the request of Michelle Peterson (hereinafter
referred to as “Peterson”); concerning Monica Lewinsky at the request of
Peterson for Robert Bennett; concerning the Lippo Group, James Riady, and James
Woods; concerning United States Congressman Bob Barr at the request of
Peterson; and concerning Dennis Sculimbrene at the request of Dimitri
Nionakis. See Barry Testimony,
August 21, 2000 Tr. at 31, 81, 111, 112, 116; H. Ex.40-2878, 40-2879, 40-2899,
40-2907, 40-2911, 40-2912, 40-3050, 40-3055, and 40-3111.
44.
Barry was even
contacted regarding searches pertaining to the Alexander case in
December, 1997 by Sally Paxton, Special Associate Counsel in the Clinton-Gore
White House Counsel’s Office and Kate Anderson of the OA Counsel’s Office
because “[w]hen there was a search for document requests in lawsuits or
Congress or Independent Counsel, [Daniel Barry was] the person people went to
with regard to [ARMS and] e-mail [archived on ARMS].” See Barry Testimony, August 21, 2000 Tr. at 36-39; H.
Ex.40-2869.
45.
Barry also met
with Sally Paxton and James Gilligan regarding e-mail searches on ARMS for this
Alexander case in December 1997.
See Barry Testimony, August 21, 2000 Tr. at 39-40; H. Ex.40-2872.
E. Barry
Discovers Mail2 Problem in Midst of Lewinsky Crisis.
46.
In January of
1998, shortly after the Monica Lewinsky scandal broke, Barry was contacted by
Mike Imbroscio, an attorney in the Clinton-Gore White House Counsel’s
Office. See Barry Testimony,
August 3, 2000 Tr. at 56-58.
47.
The
Clinton-Gore White House knew that if the Lewinsky scandal were true, with its
underlying allegations of Bill Clinton’s affair with an intern, perjury,
witness tampering, and obstruction of justice were true, it could be the end of
the Clinton presidency.
48.
Imbroscio
instructed Barry to search the e-mail accounts of Betty Currie, Nancy Heinrich,
and others from between December, 1995 and January 20, 1998 to and from
Lewinsky within the Clinton-Gore White House.
See Barry Testimony, August 3, 2000 Tr. at 56-58.
49.
Barry’s search
for the e-mails to and from Lewinsky was quite time consuming and was a high
priority assignment. See Barry
Testimony, August 21, 2000 Tr. at 49-50; H. Ex. 40-2880, 40-2883, 40-2879, and
40-2888.
50.
Barry spent
several long days working nights and weekends on this task. See Barry Testimony, August 21, 2000
Tr. at 49-50; H. Ex. 40-2880, 40-2883, 40-2879, and 40-2888.
51.
Barry kept
Imbroscio and Peterson informed of his progress, which was considerable. See Barry Testimony, August 21, 2000
Tr. at 49.
52.
Barry found
over 5,000 e-mails and nine boxes of responsive documents. See Barry Testimony, August 21, 2000
Tr. at 53; H. Ex. 40-2881.
53.
In the course of his search, Barry discovered
the Mail2 problem in January of 1998. See
Barry Testimony, August 3, 2000 Tr. at 56-58; H. Ex. 9-49.
54.
In January of
1998, Barry discovered that incoming e-mails from Lewinsky to Ashley Raines, a
Clinton-Gore White House e-mail user, had not been captured by ARMS, whereas
the reply e-mails from Raines to Lewinsky had been captured by ARMS. See Barry Testimony, August 21, 2000
Tr. at 42-46; H. Ex. 9-49.
55.
Working with
Northrop-Grumman contractor John Spriggs (hereinafter referred to as
“Spriggs”), Barry was able to confirm that the incoming e-mails had made their
way into the Clinton-Gore White House system, as they had made it to and
through the firewall and into the Mail2 server, but were not captured by and
stored on ARMS. See Barry
Testimony, August 21, 2000 Tr. at 42-46; H. Ex. 9-49.
56.
Barry
documented his findings in a memorandum prepared by him on or about January 30,
1998. See Barry Testimony,
August 21, 2000 Tr. at 42, 43-44, 46; H. Ex. 9-49.
57.
Barry reported
the problem to his Clinton-Gore White House supervisor Jim Wright and gave him
a copy of his report of this event. See
Barry Testimony, August 3, 2000 Tr. at 73-74.
58.
The problem
with the non-archiving of incoming e-mail which Barry and Spriggs found in
January of 1998 eventually came to be known as the Mail2 problem or Project
X. See Barry Testimony, August
21, 2000 Tr. at 54; H. Ex. 40-2882.
59.
By January of
1998, it was known by Barry and others within the Clinton-Gore White House that
there was a serious problem which caused incoming e-mail not to be captured by
and stored on ARMS and, therefore, not to be produced in response to document
requests from various sources. See
Barry Testimony, August 18, 2000 Tr. at 21-22, 64, 122-123, 171.
F. Barry,
Clinton-Gore Administration Lawyers Prepare and Submit False Testimony.
60.
Shortly after
discovering the Mail2 problem, Barry had discussions with Sally Paxton, an
attorney in the Clinton-Gore White House Counsel’s Office, Department of
Justice attorneys James Gilligan and Julia Fayngold-Covey during the
preparation of a March 4, 1998 declaration submitted in this case. See Barry Testimony, August 3, 2000
Tr. at 122-124.
61.
These
conversations were “related to searches, how searches are performed, how long
they take, what kind of searches we can do in ARMS, all related to ARMS.” See Barry Testimony, August 3, 2000
Tr. at 125.
62.
Following these
discussions, an initial draft of what became Barry’s Declaration of March 4,
1998 was prepared by the attorneys Fayngold-Covey, Gilligan, and Paxton. See Barry Testimony, August 3, 2000
Tr. at 125; H. Ex. 46.
63.
Given the
intense public interest in and the high-stakes concerning the Lewinsky scandal,
the legal ramifications of e-mail in the scandal, and the concurrent issue of
possible testimony by Barry on topic of EOP e-mail, an evidentiary inference
can be drawn that Barry discussed the Mail2 and other ARMS problems with
Paxton, Gilligan, Fayngold-Covey in the course of the preparation of the March
4, 2000 declaration.
64.
Barry did not
tell them what to put in the Declaration; instead, the attorneys “decided that
themselves” without telling Barry the reasons Plaintiffs “had requested a
30(b)(6) representative witness[.]” See Barry Testimony, August 3, 2000
Tr. at 132-133.
65.
Paragraph 11 of
the March 4, 1998 Declaration, which states “[s]ince July 14, 1991, e-mail
within EOP has been archived weekly in an on-line format that is susceptible to
being word-searched in the manner described below,” was written by the
Clinton-Gore White House and Department of Justice lawyers, not Barry. See Barry Testimony, August 3, 2000
Tr. at 144, March 4, 1998 Declaration of Daniel A. Barry at ¶11.
66.
Barry spent
thirty (30) to forty (40) hours preparing this Declaration, with the assistance
of Clinton-Gore Justice Department counsel James Gilligan and Julia Fayngold
Covey, and Clinton-Gore White House Counsel Sally Paxton. See June 11, 1998 Deposition of
Daniel A. Barry at 8; see also
Barry Testimony, August 3, 2000 Transcript at 122-24.
67.
Barry was told
“that the idea was that if I gave these written declarations that I wouldn’t
have to give a deposition.” Id.
at 122.
68.
The initial
draft of this Declaration was prepared in the White House Counsel’s Office
(without input from Barry) and then faxed by Paxton to Lindsay on February 11,
1998 with a note on the cover sheet that she would see Lindsay at 1:00
p.m. This draft was then transmitted to
Barry who made handwritten notes and changes.
See H. Ex. 46; Barry Testimony, August 3, 2000 Tr. at 132 - 136;
August 22, 2000 Tr. at 32 - 35
69.
What became
paragraph 11 in the final version of the Declaration was paragraph 6 in the
first draft. Compare H. Ex. 46,
¶6 to E-mail H. Ex. 18, ¶11.
70.
In the initial
draft, this paragraph stated “Since July 14, 1994, EOP email has been stored on
computer tapes in a format that is susceptible to a word search” (emphasis added). In the margin next to this language, Barry added the words “on
line and on tape” to clarify that the e-mail was not just on the tapes but on ARMS
as well. See H. Ex. 46 at 4,
Barry Testimony, August 22, 2000 Tr. at 35.
71.
By adding “on
line and on tape,” Barry was indicating that both ARMS and the back-up tapes
had to be searched to cover all post-July 1994 e-mail.
72.
However, since
Barry had designed ARMS to archive all EOP e-mail as required by the Armstrong
decision and the Presidential and Federal Records Act, he knew that the
reference to “on line” by itself would have been sufficient unless ARMS was not
archiving all e-mail due to an error such as Lewinsky/Mail2 problem he found in
January, 1998 and the numerous other problems ARMS had archiving e-mail. See Barry Testimony, August 3, 2000
Tr. at 33 - 34, 45 - 46; H. Ex. 9-49, H. Ex. 64.
73.
While the first
draft of Barry’s March 4, 1998 referred to “computer tapes” and Barry’s
corrections added “on line and,” the word “tapes” has been deleted from every
subsequent draft and the final version of this Declaration. See H. Exs. 18, 49, 67, 69, 70, 71,
73, 74, 75.
74.
Barry was
working closely with Lindsay and attorneys in the White House Counsel’s office
and the Department of Justice in drafting and revising this declaration. See H. Exs. 46 (Lindsay and Paxton),
49 (Paxton), 67 (Gilligan), 69 (Shapiro), and 70, 71, 73, 74, and 75 (Giles).
75.
The interaction
between Barry and these attorneys was extensive and detailed. See, e.g., H. Ex. 46 (extensive
handwritten changes by Barry) and H. Ex. 49 at 2 - 3 (February 24, 1998 e-mail
from Barry to Paxton with detailed, 2 page discussion of various changes).
76.
Barry did
discuss paragraph 11 of his March 4, 1998 with Clinton-Gore White House and
Justice Department attorneys Lindsay, Paxton, Gilligan, Shapiro, and
Giles. See H. Exs. 46 (Lindsay
and Paxton), 49 (Paxton), 67 (Gilligan), 69 (Shapiro), and 70, 71, 73, 74, and
75 (Giles).
77.
Before signing
the Declaration of March 4, 1998, Barry reviewed it thoroughly. See Barry Testimony, August 3, 2000
Tr. at 120.
78.
When Barry
signed the March 4, 1998, Barry knew that some inbound e-mail messages and many
other e-mails inside the Clinton-Gore White House were not in ARMS. See Barry Testimony, August 3, 2000
Tr. at 145, H. Ex. 9-49, H. Ex. 64.
79.
Paragraph 11 of
Barry’s March 4, 1998 Declaration is false.
The Clinton-Gore White House and its legal counsel knew it was and is
false. Lindsay Testimony, August 223,
2000 Tr. at 166 - 168.
80.
Barry also
knows this language in Paragraph 11 of his March 4, 1998 Declaration, also used
in Paragraph 4 of Barry’s July 9, 1999 declaration, is false. Barry says he was pressured Paxton to sign
this false document.. Heissner
Testimony, August 15, 2000 Tr. at 101 - 102;
see also H. Ex. 39-1 051639-40, 051646; Paragraph 4 of Barry’s
July 9, 1999 Affidavit, H. Ex. 42
81.
The
Clinton-Gore White House filed its Motion by Executive Office of the President
for a Protective Order Quashing Plaintiffs’ Notice of Deposition and Request
for Documents Pursuant to Rule 30(b)(6) & (b)(5) on March 4, 1998
(hereinafter “Motion for 30(b)(6) Protective Order”). See H. Ex. 19.
82.
Daniel Barry’s
March 4, 1998 Declaration, and the Declaration of Sally Paxton, an attorney in
the Clinton-Gore White House Counsel’s Office, were attached to the Motion for
30(b)(6) Protective Order (as Exhibits D and B respectively) to support the
Clinton-Gore White House’s argument that its search in response to the First
Request for Production of Documents was complete, covering all potential
sources and producing all potentially relevant documents, and that an oral
deposition should not proceed. Id. at
8-11.
83.
The
Clinton-Gore White House Motion for 30(b)(6) Protective Order stated that
“[t]he declarations [from Paxton, Laura Crabtree, the Desktop Systems Branch
Chief of the IS&T Division, and Barry which were attached to the Motion]
also render unnecessary plaintiffs’ broad discovery requests regarding e-mail
and computer files.” See H. Ex.
19 at 11.
84.
By this
statement, the Clinton-Gore White House and its counsel were representing that
all information relevant to the method and completeness of the e-mail searches
that had been or were to be performed in this case was contained in the
attached Declarations, including Tony Barry’s Declaration of March
4, 1998. Obviously, they were
worried that an oral deposition would reveal the Mail2 and other e-mail
problems.
85.
On March 18,
1998, Plaintiffs filed their Opposition to the Clinton-Gore White House’s
Motion for 30(b)(6) Protective Order (hereinafter “Oppositon”).
86.
Plaintiffs’
Opposition to the Clinton-Gore White House’s Motion for 30(b)(6) Protective Order
stated that the purpose of the Rule 30(b)(6) deposition was “to find out how
personnel at the Clinton White House communicate, exchange information and
store communications and information” and “to confirm that the Clinton White
House’s e-mail, computer files and electronically-stored information were
readily accessible.” See Id. at 2, 3.
87.
A copy of this
Opposition was faxed from Sally Paxton in the White House Counsel’s Office to
Tony Barry on March 23, 1998. See
H. Ex. 48.
88.
Tony Barry then
faxed the Opposition to Mark Lindsay with a note that stated “Please
review. I will need guidance.” See H. Ex. 48.
89.
Tony Barry
confirmed in his Declaration of March 30, 1998 that he had “reviewed the
Plaintiff’s Opposition to the Executive Office of the President’s Motion for
Protective Order....” See H. Ex.
44 at 1.
90.
Paragraph 1 of
this Declaration states that “I previously provided a declaration in this case”
and paragraphs 3 and 5 refer to “[m]y previous declaration” indicating the
Barry March 4, 1998 Declaration. See
H. Ex. 44 at ¶¶ 1, 3, 5.
91.
Barry March 30,
1998 Declaration fails to correct the false information in the March 4, 1998
Declaration that all post-July 1994 e-mail is stored in a word-searchable
format. See E-mail Hearing
Exhibit 44.
92.
On March 30,
1998, the Clinton-Gore White House and its Department of Justice counsel filed
a Reply Memorandum In Support of Executive Office of the President’s Motion For
A Protective Order Quashing Plaintiff’s Notice of Deposition and Request for
Documents Pursuant toRule 30(b) (6) & (b) (5), attaching Barry’s March 30,
1998 Declaration.
93.
The
Clinton-Gore White House’s Reply noted that Plaintiffs were seeking “to
ascertain the accessibility of EOP’s e-mail system” and responded by stating
that “EOP has provided two detailed declarations dealing with restoring,
reconstructing, and searching EOP’s e-mail,” citing the March 4, 1998 Barry
Declaration and the March 4, 1998 Paxton Declaration. Id. at 7-8.
94.
In the Clinton-Gore
White House’s Reply, it noted Plaintiffs’ suggestion that “EOP has
misrepresented the burdens associated with e-mail searches by ‘burying’ the
fact that post-July 14, 1994 e-mail is searchable...” and responded that
“[w]holly to the contrary, EOP explained this to plaintiffs’ counsel both
orally and in writing [in] January [1998]....
In addition, counsel for EOP explained these matters to the Court at the
January 13, 1998 status conference.” Id.
at 10-11.
95.
Attached to the
Clinton-Gore White House’s Reply as Exhibit H was a copy of Gilligan’s letter
of January 13, 1998 to Larry Klayman. Id.,
Ex. H.
96.
In that letter,
Mr. Gilligan stated that “[w]e are advised that since July 14, 1994, EOP e-mail
has been stored on tapes in a format that is generally susceptible to being
searched by keyword.” Id., Ex.
H. at 3.
97.
In fact, as of
January 18, 1998, much EOP e-mail since July 14, 1994 had not been stored
on tapes in a format that is generally susceptible to being searched by
keyword. See H. Ex. 64.
98.
At the January
13, 1998 hearing, Clinton-Gore White House counsel stated that “[a]s to the
post July 1994 period, e-mail was also stored on tape, but it is in a format
that is more readily susceptible of a word search.” January 13, 1998 Tr. at 55.
99.
Again, at that
time, much EOP e-mail since July 14, 1994 was not readily susceptible to being
word searched. See, e.g., H. Ex.
64.
G. Court Unknowingly Relied
on False Clinton-Gore White House Testimony In Planning E-mail Discovery.
100.
On April 13,
1998, this Court ordered Plaintiffs’ Rule 30(b)(6) deposition(s) to proceed
stating that “[t]he parties are instructed to comply with the Rule 30(b)(6) Notice
of Deposition and Request for Documents in a manner consistent with the
analysis set forth in the Memorandum and Order.” See Memorandum and
Order, April 13, 1998, at 21.
101.
Quoting from
the Barry affidavit of March 4, 1998, the Court concluded that post July 14,
1994 EOP e-mail “has been maintained in a word searchable format and has been
archived weekly in an on-line format” and directed Plaintiffs to discuss
“appropriately worded searches of [the post-July 1994] backed-up and archived e-mail.” See Memorandum and Order, April 13,
1998, at 10-11.
102.
The information
on Clinton-Gore White House e-mail problems was withheld from the Court. As a result, the Court was unable to order
any remedial action or attendant discovery concerning ARMS and e-mail for the Plaintiffs.
103.
The April 13,
1998 Order also required the Clinton-Gore White House to produce Rule 30(b)(6)
witnesses to respond to item numbers 1, 3, and 8, as those items in Plaintiffs’
Rule 30(b)(6) Notice of Deposition had been defined by the Court and Plaintiffs.
Id. at 13-14.
104.
In particular,
item 1 required the deponent to testify regarding “the system of files
maintained to store, protect, and preserve documents and other things,
including ... electronic mail.” Id.
105.
The April 13,
1998 Order also required the deponent to testify regarding “the system or
systems used since January 1, 1992, to create, transmit, store, retrieve, and
delete so-called ‘electronic mail’ (said representative(s) to have knowledge of
the maintenance and operation of all electronic mail systems...).” Id at 15.
106.
The April 13,
1998 Order also required that the deponent testify regarding “all measures for
compliance at the [EOP] ... with the ... Presidential Records Act of 1978, and
any other relevant statute [e.g., the Federal Records Act] ...
applicable to the preservation ... of documents generated ... on whatever media
in the [EOP]....” Id. at 17-18.
107.
The
Clinton-Gore White House selected Daniel Barry as its Rule 30(b)(6) designee on
e-mail matters, including information on all of the areas covered by this
Court’s Memorandum and Order of
April 13, 1998. See
H. Ex. 50 (Barry June 11, 1998 Deposition Transcript).
108.
For
approximately six months after the discovery in January of 1998 of the problem
with the archiving of incoming e-mail, Barry, the OA, and the Clinton-Gore
White House sat on and covered up the problem, knowing that it would not go
away, but hoping that no one else would become aware of the problem and of the
critical fact that responsive e-mails existed which were not being produced.
109.
No one told any
of the other Northrop Grumman contractors about the Mail2 problem prior to June
12, 1998, even though such knowledge was important to the performance of their
jobs and e-mail production was part of their contract with the EOP. See E-mail Hearing Testimony of
Robert Haas (hereinafter “Haas Testimony”), August 14, 2000 Tr. at 6.
110.
The discovery
in January of 1998 of the fact that the missing e-mail was not being captured
on ARMS was a well-kept secret by Barry, Spriggs, and a select group within the
OA and the EOP until the same problem was also discovered by Northrop Grumman
contractors Robert Haas and Yiman Salim in June, 1998.
H. Mail2
Problem “Rediscovered” In May/June 1998.
111.
Sometime in
late May or early June of 1998, the fact that the incoming e-mail was not being
captured on ARMS (the “Mail2 problem”) was independently discovered by
Haas. See Haas Testimony, August
14, 2000 Tr. at 6-16.
112.
Haas, a
Northrop Grumman employee, has worked as a contractor at the EOP for ten years
as a Lotus Notes e-mail specialist. See
Haas Testimony, August 2, 2000 Tr. at 178; Haas Testimony, August 14, 2000 Tr.
at 15.
113.
Haas was
working on a project around early June of 1998. He clicked on a screen or “view” which would show him all
non-records managed e-mail for the selected user’s account expecting to find a
blank or near blank screen. Instead, he
discovered a full screen indicating that there were multiple non-records
managed e-mails. He also discovered
that many of them were months and years old with some having dates going back
to 1996. Haas Testimony, August 14,
2000 Tr. at 14-16.
114.
Haas was
overwhelmed by what he saw on the screen, which his trained eye and mind
immediately told him was a serious and longstanding problem. See Haas Testimony, August 14, 2000
Tr. at 14-16.
115.
Haas instantly
knew that it was a big problem which would need a lot of work to fix, and had a
feeling that he was going to regret “ever seeing this day.” See Haas Testimony, August 14, 2000
Tr. at 14-16.
116.
The problem
which Haas discovered would later come to be known as the Mail2 problem, and
was the same problem which Barry and Spriggs had found earlier in January of
1998. See Haas Testimony, August
2, 2000 Tr. at 199-203.
117.
Haas and his
Northrop Grumman co-worker who was with him at the time, Yiman Salim,
immediately notified their project manager Betty Lambuth (hereinafter referred
to as “Lambuth”) about what they had found.
See Haas Testimony, August 2, 2000 Tr. at 185-187.
118.
At Ms.
Lambuth’s instruction, Haas continued to investigate the problem further while
she notified her contact within the Clinton-Gore White House, Laura Crabtree,
who was the Lotus Notes NT server specialist in the Clinton-Gore White
House. See Haas Testimony,
August 2, 2000 Tr. at 185-187.
119.
At Ms.
Lambuth’s instruction, Haas recorded his findings as of that time. See Haas Testimony, August 14, 2000
Tr. at 15-16; H. Ex. 9-12.
120.
What was known
at that time was that e-mail was not being processed as it should have
been. See Haas Testimony, August
2, 2000 Tr. at 194-196; H. Ex. 9-12.
121.
Haas continued
to analyze the problem and, within a couple of days, had discovered that a
spelling error had affected the e-mails of what was later determined to be
hundreds of Clinton-Gore White House e-mail users and also affecting over
240,000 documents. See Haas
Testimony, August 2, 2000 Tr. at 194-196; H. Ex. 9-12.
122.
Haas gave the
report of affected Clinton-Gore White House users to Lambuth who passed it on
to her government contacts. See
Haas Testimony, August 2, 2000 Tr. at 194-196.
123.
While producing
this report, Haas was interrupted by John Spriggs, who possessed a piece of
paper containing a list of four names. See
Haas Testimony, August 2, 2000 Tr. at 199-201.
124.
The list had
been compiled by someone in the Clinton-Gore White House Counsel’s Office and
was conveyed by Mark Lindsay to Spriggs through Lambuth. See Haas Testimony, August 2, 2000
Tr. at 199-201.
125.
The names on
the list, which were recognizable to Haas as upper level executives in the
Clinton-Gore White House, included Sidney Blumenthal, Erskine Bowles, Ira
Magaziner, and John Podesta. See
Haas Testimony, August 14, 2000 Tr. at 23, 24, 25, 26, and 27.
126.
Haas was told
by Spriggs to check the e-mail files of the persons whose names appeared on the
list to determine if incoming e-mail from Lewinsky could be found. See Haas Testimony, August 2, 2000
Tr. at 199-204; see also August 14, 2000 Tr. at 23-29.
127.
Haas could not
locate any such e-mail directed to the people on Spriggs’ list. See Haas Testimony, August 14, 2000
Tr. at 28-29.
128.
Unrecorded
e-mail was found in each of these individual’s e-mail, but no e-mail from
Lewinsky was found. See Haas
Testimony, August 14, 2000 Tr. at 28-29.
129.
At Spriggs’
suggestion, Haas checked the e-mail box of Ashley Raines, and discovered a
motherload of over 400 documents, and also searched the account of Betty Currie
(hereinafter referred to as “Currie”). See
Haas Testimony, August 15, 2000 Tr. at 17-18; Haas Testimony, August 14 Tr. at
25.
130.
The documents
found in this search were printed out and constituted about two-and-one-half
reams of paper, which Haas placed in an expandable accordion folder and gave to
Lambuth. See Haas Testimony,
August 14, 2000 Tr. at 7-8.
131.
Haas gave the
files to Ms. Lambuth, who gave them to Mark Lindsay, who gave them to the
receptionist in the White House Counsel’s Office. See Haas Testimony, August 14, 2000 Tr. at 8-11; Lindsay
Testimony, August 23, 2000 Tr. at 144.
132.
Haas later
learned that Spriggs knew about the missing incoming e-mail from Lewinsky to
Raines, because he had made the same discovery with Barry in January of
1998. See Haas Testimony, August
14, 2000 Tr. at 199-203.
133.
Spriggs did not
share the information about the January, 1998 discovery with Haas or other
Northrop Grumman employees at the time, or even when he was allegedly helping
to troubleshoot the problem with Haas in June, 1998. See Haas Testimony, August 14, 2000 Tr. at 198-202.
134.
The search by
Haas of the four names was not intended to be a comprehensive search, but
rather a superficial, cursory search in 30 seconds or less to see if they could
find the kind of “hits” that had previously been found with incoming e-mail
from Lewinsky to Raines. See
Haas Testimony, August 14, 2000 Tr. at 183.
135.
The search by
Haas of the four names was not an effort to find all e-mail concerning
Lewinsky. See Haas Testimony,
August 14, 2000 Tr. at 183-184.
136.
No one was
asked to try to find all of the non-records managed e-mail concerning
Lewinsky. See Haas Testimony,
August 14, 2000 Tr. at 183-184.
137.
Although Haas
heard Cheryl Mills testify before Congress that all non-records managed e-mail
were duplicative, no one could make
that finding based on Haas’s search or anything that he knew. See Haas
Testimony, August 14, 2000 Tr. at 183-184.
138.
No one did the
kind of comprehensive search or analysis which would be required to support
such a statement. See Haas
Testimony, August 14, 2000 Tr. at 183-184.
139.
Haas and the
other employees in IS&T recognized that the failure to manage these e-mails
in ARMS would have an impact on document production to the Court, the Congress,
and the Independent Counsel. See
Haas Testimony, August 14, 2000 Tr. at 34-35.
140.
Although not a
lawyer, Haas assumed that there were adverse legal consequences to not
producing documents required by subpoena, and that to do so would be against
the law and constitute obstruction of justice.
See Haas Testimony, August 14, 2000 Tr. at 37-38.
141.
It was
discussed and recognized by Haas and the people with whom he worked that the
law required that the documents to be maintained and produced, no matter the
cost. See Haas Testimony, August
14, 2000 Tr. at 40.
142.
It was clear to
all, even computer technicians such as Robert Haas, who were untrained in the
law, what the proper course of action was.
See Haas Testimony, August 14, 2000 T. at 40.
I. To Keep the E-mail
Hidden from the Court, the Office of Independent Counsel, and Congress,
Clinton-Gore White House Officials Threatened Northrop Grumman Contractors
143.
This Court
heard from three witnesses who were threatened by the Clinton-Gore White
House: Betty Lambuth, Sandra Golas, and
Robert Haas.
144.
In late May-early June, 1998, Betty Lambuth
alerted Laura Crabtree to the cause of the Mail2 problem, its severity, who it
affected, and its impact on searches. See
E-mail Hearing Testimony of Betty Lambuth (hereinafter “Lambuth Testimony”),
August 1, 2000 Tr. at 17.
145.
Crabtree
immediately consulted with her superior, Mark Lindsay, then OA Counsel, about the Mail2 problem. See Lambuth Testimony, August 1, 2000
Tr. at 17.
146.
Lindsay told
Crabtree to tell Ms. Lambuth that if Ms. Lambuth or any of her colleagues who
knew about Mail2 told any unauthorized person, they would all lose their jobs,
be arrested, and go to jail. Crabtree
conveyed Lindsay’s threats to Lambuth. See
Lambuth Testimony, August 1, 2000 Tr. at 18.
147.
The
instructions on who not to talk included spouses and the Northrop Grumman
contractors’ managers. See Lambuth
Testimony, August 1, 2000 Tr. at 18.
148.
To Ms. Lambuth,
these were not idle threats, as Ms. Lambuth had seen a previous contractor
escorted out the Clinton-Gore White House because of unsubstantiated
allegations by Crabtree. See Lambuth Testimony, August 1, 2000 Tr. at
19-20.
149.
Ms. Lambuth was
also told not to write anything down about the Mail2 problem. See Lambuth Testimony, August 1, 2000
Tr. at at 18-19.
150.
Crabtree was
aware of the Mail2 problem’s impact on subpoenas and document requests, having
discussed it with Ms. Lambuth at those initial meetings. See Lambuth Testimony, August 1, 2000
Tr. at at 21-22.
151.
Because of the
severity of the Lindsay threat (as conveyed by Crabtree), Ms. Lambuth sought a
meeting with Lindsay. See Lambuth
Testimony, August 1, 2000 Tr. at 19-20.
152.
Ms. Lambuth
reported these threats to her contracting staff -- Bob Haas, Sandi Golas, John
Spriggs, and perhaps Yiman Salim. See
Lambuth Testimony, August 1, 2000 Tr. at 22.
153.
Ms. Lambuth,
after trying nearly an entire day to meet with Lindsay, eventually met with him
in his office. See Lambuth
Testimony, August 1, 2000 Tr. at 23-25.
154.
At that
meeting, Lindsay, in a serious tone, repeated the threats – telling Ms. Lambuth
that she and her colleagues would lose their jobs, be arrested, and go to jail
if they talked to unauthorized people about Mail2. See Lambuth Testimony, August 1, 2000 Tr. at 23-25.
155.
Ms. Lambuth was
“very taken aback by the threats.” See
Lambuth Testimony, August 1, 2000 Tr. at 26.
156.
So serious were
the threats that Lambuth feared for her personal safety. See Lambuth Testimony, August 1, 2000
Tr. at 26‑27.
157.
Clinton-Gore
White House “government” officials stated that the subject e-mail was
classified and/or top secret. See Lambuth
Testimony, August 1, 2000 Tr. at 27-28.
158.
The e-mail at
issue was not classified or top secret.
See Lambuth Testimony, August 1, 2000 Tr. at 28.
159.
It was these
threats that led to Ms. Lambuth and her team to start calling the Mail2 problem
“Project X.” See Lambuth
Testimony, August 1, 2000 Tr. at 70-71.
160.
One of Ms.
Lambuth’s government supervisors, Kathleen Gallant, Associate Director for
Information Systems & Technology, confirmed that Ms. Lambuth was shaken by
these threats. See Gallant
Testimony, August 1, 2000 Tr. at 123-34.
161.
At a meeting
with Ms. Lambuth and Paulette Cichone (OA’s then-Director of Information
Management) shortly after Ms. Lambuth was threatened, Ms. Gallant saw that
something traumatic had occurred to Ms. Lambuth. See Gallant Testimony, August 1, 2000 Tr. at 23-24.
162.
Ms. Gallant
would later connect the trauma to the threats.
See Gallant Testimony, August 1, 2000 Tr. at 125-130.
163.
Shortly after
Lambuth’s meeting with Lindsay, Lindsay and Crabtree reiterated the threats again
at a meeting with Ms. Lambuth’s Northrop Grumman “team.” Those members of Ms. Lambuth’s Northrop
Grumman team at the meeting were Robert Haas, Sandra Golas, John Spriggs, and
Yiman Salim. See Lambuth
Testimony, August 1, 2000 Tr. at 27-28.
164.
The claim that
the e-mail was “classified” was reiterated, and the “team” was told not to take
notes or use the e-mail system to communicate about the Mail2 problem. See Lambuth Testimony, August 1, 2000
Tr. at 29-30.
165.
The e-mail in
question was not classified. See
Lambuth Testimony, August 1, 2000 Tr. at 27-28.
166.
It was another
scare tactic by Lindsay/Crabtree designed to keep the contracting team quiet
and to effect the cover-up. See
Lambuth Testimony, August 1, 2000 Tr. at 27-30.
167.
Ms. Lambuth,
who has a security clearance, testified directly on this, stating that she
“would not have felt that anything that was in [the] e-mail would have been
classified.” See Lambuth
Testimony, August 1, 2000 Tr. at 28.
168.
By falsely
stating the e-mail was “classified,” the Clinton-Gore White House effectively
threatened also to take away Lambuth’s and her colleagues’ security clearances
if they talked about the hidden e-mail.
See Lambuth Testimony, August 1, 2000 Tr. at 26; Sparks
Testimony, August 16, 2000 Tr. at 88-89.
169.
All the staff
became very alarmed about the threats, many expressing concern about the
instruction not to talk to spouses about the Mail2 problem. See Lambuth Testimony, August 1, 2000
Tr. at 30-33.
170.
Mr. Haas
confirmed these threats:
[By Mr. Haas:] Well, we were
addressed over the phone by a gentleman by the name of Mark Lindsay, which is
one of the government officials who was in charge of the OA division at that
time...He instructed us that he had been made aware of what we were looking
into and that we should treat it as though it was top secret, and not tell
anybody, keep it within the group.
Until we got a handle on this thing, he didn’t want anybody outside of
the five people in that room to know anything about it, and that if – we were
not to tell – talk to our wives or anyone.
See Haas Testimony, August 2, 2000 Tr. at 187.
171.
Haas thought
this instruction not to talk was an unusual instruction. See Haas Testimony, August 2, 2000
Tr. at 188.
172.
The phone
conference was the first and only time that Lindsay had addressed the
contractors. See Haas Testimony,
August 15, 2000 Tr. at 28.
173.
After Lindsay
hung up, Crabtree reenforced Lindsay’s threats:
[By Mr. Haas:] She continued the
meeting and she basically reiterated two or three different ways, the same verbiage
that we were not to talk about it any way, shape or form to anyone outside the
room; that Laura Crabree, Mark Lindsay, Ada Posey were the only people that
could authorize us to talk to anyone outside of that room in the future; and
that that if we did, and they stated including our wives, that if we did, they
would use the full weight of the government to make sure that we would never
work in this business or this town again, in fact, they would have us arrested
and put in jail.
See Haas Testimony, August 2, 2000 Tr. at
188-89.
174.
These “head
spinning” threats frightened Mr. Haas. See
Haas Testimony, August 2, 2000 Tr. at 189-190.
175.
Ms. Crabtree
was speaking for the Clinton-Gore White House and Lindsay. (“She reiterated
(Lindsay’s) statements...When she said that they would use the power of the
government to put me jail, I assume that meant Mr. Lindsay also.”) See Haas Testimony, August 2, 2000
Tr. at 192-193.
176.
Ms. Crabtree
was quite specific in her threats of jail to Mr. Haas:
[By Mr. Haas:] To the end [of the
meeting] Laura Crabtree was continuing to reiterate the need for absolute
secrecy on this. I broached her with a
question that what if I was approached by Virginia Apuzzo, which was a higher
level government executive several levels above her and questioned me on the
subject, what was I to tell her? And
she said nothing. I said you mean if I
tell Virginia Apuzzo or my wife, you know, what are you going to do to me? She said well, in fact, there will be a jail
cell with your name on it.
See Haas Testimony, August 2, 2000 Tr. at 192.
177.
Showing his
awareness of the legal implications of his threats, Mark Lindsay also sought
legal consultation from a fellow lawyer in the OA, Adam Greenstone, Esq., on
the issue of whether or not it was legal to tell employees not to record
information about the Mail2 problem. See
Lindsay Testimony, August 23, 2000 Tr. at 74-78.
178.
Lindsay also
told Clinton-Gore White House political appointee Kathleen Gallant that she was
not to take notes about Mail2 or speak to anyone about it, but later lied and
denied that he had said this to her. See
Gallant Testimony, August 1, 2000 Tr. at 112 - 116.
179.
Ada Posey, who
hired Lindsay for the Clinton-Gore White House, testified that Lindsay was not
straightforward or candid. See
E-Mail Hearing Testimony of Ada Posey (hereinafter “Posey Testimony”), August
17, 2000 Tr. at 34 - 37.
180.
The evidence
adduced to date shows that not only did Mark Lindsay and Laura Crabtree
threaten EOP contractors, but Lindsay is lying to this court when he says he
cannot remember the threats or any meeting when he made the threats. See also Lindsay
Testimony, August 23, 2000 Tr. at 85 - 89.
181.
Haas took these
threats from his White House government managers so seriously that he expressed
fear for his, and the safety of him and his family. Ms. Hall testified quite directly:
[By Ms. Hall:] [Haas] said he
was afraid for his life. He knew a lot
of the information in there [in the Project X e-mail]. He was afraid that his company would be
taking in the responsibility for the programming glitch. He was – he told me that he was afraid for
his life. He lived a long ways
away. He was afraid for his family, he
was afraid for himself. He had been
threatened by several government managers.
See E-Mail Hearing Testimony of Sheryl Hall
(hereinafter “Hall Testimony”), July 31, 2000 Tr. at 98.
182.
As did Ms. Lambuth,
Haas knew that the White House could follow through on these threats. See Hall Testimony, July 31, 2000 Tr.
at 99.
183.
Haas also told
Ms. Lambuth of his concerns for his life, which were directly connected to the
threats and the incriminating Project X e-mail he saw on Filegate and other
Clinton-Gore scandals. See
Lambuth Testimony, August 1, 2000 Tr. at 32-33.
184.
Haas also
expressed concerns about his family and the security of his home to Howard
“Chip” Sparks because of his involvement in Project X. See Sparks Testimony, August 16, 2000
Tr. at 87-89.
185.
Sandra Golas,
another contractor for Northrup Grumman, was also a victim of these threats by
Crabtree and Lindsay. Golas testified
that the threats were made during the same meeting about which Ms. Lambuth and
Mr. Haas testified:
[By Ms. Golas:] Ms.
Crabtree called Mr. Lindsay, put him on a speaker phone. He spoke to us and told us that this a very
serious situation that we should...take this very seriously; that we should not
talk with anybody about it. I don’t
remember all the details, but that was the jest [sic] of his conversation. I think – I don’t remember everything. I know that when the conversation terminated
Laura proceeded to – Ms. Crabtree proceeded to give us some more instructions.
[By Mr. Klayman:] What were
those instructions?
[By Ms. Golas:] Pretty much she reiterated what Mr. Lindsay had said
about the seriousness of the – there were some comments made about – somewhere
in the conversation that somebody said somebody about jail. I’m not sure who said it. I do know there was some reference to
it. It sounded very, very serious. We were told to treat it very – they said it
was a very, very serious situation; that we shouldn’t talk to anybody. We were also told not to talk to Mr. Hawkins
and Mr. Wright.
E-Mail Hearing Testimony
of Sandra Golas (hereinafter “Golas Testimony”), August 2, 2000 Tr. at 39-40.
186.
The threats
caused Ms. Golas to nearly lose her job.
In a key incident in this case, rather than tell her government and
Northrop Grumman supervisors about Project X after being threatened with job
loss, Ms. Golas put her job at risk because she took the threats so seriously:
[By Ms. Golas:] Mr. (Steve) Hawkins [her Nortrop-Grumman supervisor] and
I had a conversation at which he got very loud and told me that I had 30
minutes to tell him what was going on or I could pack my bags..He said [a
little later], you know, you’re bordering on being insubordinate, and I looked
at him and I said if it’s a choice of being insubordinate or going to jail, I
guess I’ll have to go be insubordinate.
See Golas Testimony, August 2, 2000 Tr. at
75-77.
187.
Ms. Golas told
Mr. Haas about this encounter and Mr. Hawkins’ threat to fire her. Mr. Haas then told Mark Lindsay about the
situation and asked him to intervene on Ms. Golas’ behalf. Mark Lindsay then called Hawkins and
insisted that Hawkins come to the phone and speak with him. After this conversation, Mr. Hawkins dropped
the matter with Golas. See Golas
Testimony, August 2, 2000 Tr. at 76-78.
188.
The threats
caused Ms. Lambuth to lose her contracting job at the Clinton-Gore White House
after she refused, because of the threats, to tell Steve Hawkins about Project
X. See Lambuth Testimony, August
1, 2000 Tr. at 42-53.
189.
Ms. Lambuth was
at a doctor’s appointment when the confrontation between Hawkins and Ms. Golas
occurred. Ms. Golas, upset and crying,
called her and Ms. Lambuth came back to the White House to talk with Hawkins:
[By Ms. Lambuth:] The
person’s office (Steve Hawkins) was in happened to be another manager (R.C.
Cavazos) who works for the same company that I work for. Basically in talking to Steve he said that
we had to tell him [about Project X], I had to tell him, Sandi (Golas) had to
tell him, that he was the prime [contractor], I was the sub [-contractor], and
we basically listened to what the prime says.
I told him that I could not tell him.
I told him again about the threats, you know, we couldn’t talk about
this project. He turned around and
said, see, she’s insubordinate. She
will be removed from the project for not talking to me about this.
[By Mr. Klayman:] She,
meaning you?
[By Ms. Lambuth:] Yes.
See Lambuth Testimony, August 1, 2000 Tr. at
46-47.
190.
That these
threats occurred is not in dispute.
Knowledge of the threats was common currency in the Clinton-Gore White
House. Several witnesses in this case
testified to learning of them in the course of their work in the Clinton-Gore
White House -- Sheryl Hall, Daniel Barry, Karl Heissner and Howard “Chip”
Sparks among them. See Hall Testimony, July 31, 2000 Tr. at 96-101;
Barry Testimony, August 18, 2000 Tr. at 116-118; Testimony of Karl Heissner
(hereinafter “Heissner Testimony”), August 15, 2000 Transcript at 71-72, 88-89;
Sparks Testimony, August 16, 2000 Tr. at 54-58.
191.
Kathleen
Gallant, Associate Director for Information Systems & Technology, was a
political appointee with the Clinton-Gore White House OA and a superior to
Laura Crabtree. Ms. Gallant called a
meeting and was told by all the Northrop Grumman employees of Crabtree’s
threats. See Gallant Testimony,
August 1, 2000 Tr. at 106.
192.
At that
meeting, not one Northrup Grumman employee said the threats had not
occurred. See Gallant Testimony,
August 1, 2000 Tr. at 137.
193.
Because of the
threats, Ms. Gallant removed Crabtree from Project X. See Gallant Testimony, August 1, 2000 Tr. at 136;
Declaration of Kathleen Gallant, May 10, 2000 at ¶8.
194.
The threats
caused a very significant delay in the recovery of the e-mail. The Northrop Grumman team was forced to meet
in a park and a coffee shop to discuss the problem, slowing the project
down. See Lambuth Testimony,
August 1, 2000 Tr. at 54; Golas Testimony, August 2, 2000 at 90.
195.
After Betty
Lambuth was removed, Northrop Grumman and the Clinton-Gore White House managers
took the Northrop Grumman employees off of Project X and assigned them to other
jobs, leaving no one to work on correcting the problem. See Golas Testimony, August 2, 2000
Tr. at 113; Lambuth Testimony, July 13, 2000 Tr. at 91; Gallant Testimony,
August 1, 2000 Tr. at 236.
196.
In August,
1998, Ms. Gallant had to suggest the intervention of Northrop Grumman
legal counsel to get the ball rolling again on fixing Mail2 and to reassure the
Northrop Grumman employees. See Gallant
Testimony, August 1, 2000 Tr. at 129.
197.
As a result of
these threats, the “bleeding” in the Mail2 server was not stopped for six
months (November, 1998), causing additional e-mail to be non-records managed
and lost to this Court.
198.
No one was ever
punished for the threats and nothing was ever done to recover the missing
e-mail, or to report the incident to the proper authorities, including this
Court.
199.
The President
never even discussed the threats with his Chief of Staff earlier this year
despite their prominence in this Court, Congress, and the news media.
200.
The threats are
material to this proceeding:
[By Mr. Klayman:] And the
threats having been in made in the context of Mail.2, you wouldn’t have sluffed
it off as immaterial, would you.
[By Mr. Ruff:] Certainly not.
See E-mail Hearing Testimony of Charles F. C.
Ruff (hereinafter “Ruff Testimony”), August 28, 2000 at 74.
J. Clinton-Gore White
House Threats Obstructed Court’s Processes and Testimony of Witnesses.
201.
These threats
have resulted in less than forthright testimony before this Court by at least
one of the victims. Because of the
threats he suffered, Robert Haas is not telling the truth when he denies that
he told anyone he felt in fear for his life and that he found incriminating
e-mail in the Project X e-mail on Filegate and a host of other Clinton
scandals. See Haas Testimony, August 2, 2000 Tr. at 187-190; Haas
Testimony, August 15, 2000 Tr. at 22-23.
202.
Because of the
threats made to him by White House officials over Mail2, Haas was in fear for his life. See Hall Testimony, July 31, 2000 Tr. at 98-99; Lambuth Testimony,
August 1, 2000 Tr. at 32.
203.
This was
corroborated by Mr. Sparks’ testimony. See
Sparks Testimony, August 16, 2000 Tr. at 54-57, 87-89.
204.
The testimony
of Ms. Hall and Ms. Lambuth is also clear that Haas told both of them that he
found incriminating Filegate and other Clinton-Gore scandal e-mail. See Hall Testimony, July 13, 2000 Tr.
at 24.
205.
This was also corroborated by Mr.
Sparks. See Sparks Testimony,
August 16, 2000 Tr. at 56.
206.
Haas admitted
to Sheryl Hall that he felt compelled to deny that he saw incriminating e-mail
relating to Filegate and other scandals because that he feared for his life.
See Hall Testimony, July 31, 2000 Transcript at 101-104.
207.
The evidence is
that a Clinton-Gore White House contractor, Robert Haas, was afraid he would be
murdered because of the incriminating information he had found relating to
Filegate and other scandals in the Project X e-mails and because of the threats
he received from Clinton-Gore White House officials. See Hall Testimony, July 31, 2000 Tr. at 38.
208.
In order to
protect himself, Haas gave documents about Project X to a White House official,
Sheryl Hall. See Hall Testimony,
July 31, 2000 Tr. at 96-98.
209.
Even after the
scandal broke in February, 2000, the threats caused hesitation on the part of
witnesses to come forward. Betty
Lambuth testified how she was still hesitant because of her fears of what would
happen to her friends and former colleagues at the Clinton-Gore White House. See Lambuth Testimony, August 1, 2000
Tr. at 96.
210.
And Howard
“Chip” Sparks has testified how these threats and the general Clinton-Gore mode
of retaliatory and intimidatory conduct continues to keep witnesses from coming
forward to this Court with relevant information. See Sparks Testimony,
August 16, 2000 Tr. at 80-81, 86-89.
211.
As described
below, Northrop Grumman officials also knew of the threats. See, e.g.,
Haas Testimony, August 14, 2000 Tr. at 54-61.
K. As
a Result of the Threats and Fraudulent Secrecy Requirements Imposed on Some Who
Knew about the Mail2 Problem, E-mail Evidence Was Lost Forever.
212.
In January
1998, Kathy Gallant joined the OA as the Associate Director for Information
Systems and Technology (“IS&T”). See
Gallant Testimony, August 1, 2000 Tr. at 105-06.
213.
In this
position, Gallant had general responsibility for computer operations within the
the OA. See Gallant Testimony,
August 1, 2000 Tr. at 106.
214.
As part of
these responsibilities, Gallant maintained the back up tapes for the e‑mail
servers. See Gallant Testimony,
August 1, 2000 Tr. at 201-02.
215.
Due to a
shortage of funds for purchasing new back up tapes, Gallant and her staff
formulated a plan for recycling old back up tapes by writing over them. See Gallant Testimony, August 1, 2000
Tr. at 202.
216.
Gallant asked
OA counsel for permission to implement this plan but never received a
response. See Gallant Testimony,
August 1, 2000 Tr. at 202.
217.
At that time,
OA counsel was Mark Lindsay. See
Lindsay Testimony, August 22, 2000 Tr. at 145-146.
218.
Gallant then
asked again for permission to implement the plan and indicated that she would
go forward with it if there still was no response. When she received no response, she went forward with the back up
tape recycling plan. See Gallant
Testimony, August 1, 2000 Tr. at 202.
219.
Because Gallant
had not been told about the Mail2 problem at that time, she did not realize
that her tape recycling program would result in e-mail being permanently
lost. See Gallant Testimony,
August 1, 2000 Tr. at 203.
220.
Robert Haas,
and other Northrop Grumman contractor who was aware of the Mail2 problem,
recognized that the back tape recycling program would make it impossible to
recover the un-archived e-mail. See
Haas Testimony, August 14, 2000 Tr. at 179; Haas Testimony, August 15, 2000 Tr.
at 43-44.
221.
Haas, because
of the threats and secrecy requirements, felt he could not tell Gallant
directly to stop the recycling to protect evidence from being destroyed. Eventually, Betty Lambuth conveyed the necessary information to
Gallant and the recycling program was halted.
See Haas Testimony, August 15, 2000 Tr. at 44.
222.
However, six
months of un-archived e-mail, which now can never be searched in response to
Plaintiffs discovery requests, had already been destroyed. See Gallant
Testimony, August 1, 2000 Tr. at 201-203.
223.
On June 1, 1998,
Virginia Apuzzo, sent an e-mail “Memorandum For All EOP Lotus Notes E-Mail
Users” concerning “Lotus Notes E-Mail Disk Space Shortage and What You Can Do
to Help.” See H. Ex. 9-16.
224.
This e-mail
memorandum stated that “[b]ecause an archival copy of each e-mail is created
when a message is sent, from a records management perspective, users can feel
free to delete unneeded files from their desktop.” See H. Ex. 9-16.
225.
This e-mail
memorandum advised users to periodically review their e-mail and delete any
unneeded messages. See H. Ex.
9-16.
226.
Any messages
deleted by users affected by the Mail2 problem prior to the “bleeding” being
stopped in November, 1998, are not archived on ARMS. See Hall Testimony, July 31, 2000 Transcript at 152-154.
227.
By encouraging
users to read and delete e-mail quickly, Apuzzo’s e-mail memorandum ensured
that e-mail would be deleted before it was copied to a back up tape during the
normal, periodic back ups. See
Hall Testimony, July 31, 2000 Transcript at 152-154.
228.
For the users
affected by the Mail2 problem, this means those e-mails are lost forever, as
they are not on ARMS, were not backed up, and cannot be reconstructed as a
result. See Hall Testimony, July
31, 2000 Transcript at 152-154.
229.
On March 24,
1999, Apuzzo sent a follow-up e-mail memorandum to a broad range of e-mail
users including those affected by the Mail2 problem reminding them to delete
e-mail. See H. Ex. 9-16 at
E0545.
230.
The Apuzzo
memorandum of June 1, 1998 urging the deletion of unarchived e-mail was never
rescinded and therefore continues to be in effect to this day. See E-Mail Hearing Testimony of
Virginia Apuzzo (hereinafter “Apuzzo Testimony”) September 22, 2000 Tr. at 62,
H. Ex. 9-16.
231.
Ms. Lambuth was
aware that this memo was disseminated and, to no avail, told her superiors that
the Apuzzo e-mail memorandum would cause e-mail to be lost. See Lambuth Testimony, August 1, 2000 Tr. at
13-14, 55-58.
232.
The issuance of
the Appuzzo e-mail memorandum and the failure to rescind it after the Northrop
Grumman employees found the Mail2 problem undoubtedly caused relevant e-mails
material to this case to be lost forever.
L. Daniel
Barry and Clinton-Gore Justice Department Lawyers Present False Deposition
Testimony to This Court.
233.
Almost
contemporaneously with these threats and resultant lost e-mail, Daniel Barry
was designated by the EOP to give testimony in this case on “how personnel at
the Clinton White House communicate, exchange information and store
communications and information” and “to confirm that the Clinton White House’s
e-mail, computer files and electronically-stored information were readily
accessible.” See Plaintiffs’
Opposition to the Executive Office of the President’s Motion for Protective
Order, dated March 18, 1998 at 2, 3.
234.
On June 9 and
June 10, 1998, in preparing for this deposition, Daniel Barry met for about ten
hours with Sally Paxton, an attorney in the Cllinton-Gore White House Counsel’s
Office, James Gilligan and Julia Fayngold-Covey. August 3, 2000 Tr. at 122-124, 179-180.
235.
During this
deposition, Clinton-Gore DOJ counsel elicited false sworn testimony from Barry
that incoming Clinton-Gore White House e-mail was being records-managed:
[By Mr. Gilligan:] Mr.
Favish was speaking to you earlier, Mr. Barry about a situation he posited
where somebody working in the White House would sent an E-mail from desk top PC
to somebody in Idaho; do you recall that?
[By Mr. Barry:] Yes
[By Mr. Gilligan:] An
E-mail of that kind, would that be stored in the Automated Records Management
System?
[By Mr. Barry:] Yes, it would.
[By Mr. Gilligan:] How
about the reverse, if an E-mail came in to Idaho to somebody’s desk top PC in
the White House would that also be found stored in the Automated Records
Management System?
[By Mr. Barry:] If it was directed to their E-mail ID at the EOP, yes, it
would be.
[By Mr. Gilligan:] Thank you, sir.
See June 11, 1998 Deposition of Daniel A. Barry
at 282-283 (H. Ex. 50), see also Barry Testimony, August 3, 2000.
236.
Barry testified
repeatedly that all e‑mails since 1994 had been properly captured, or
were being records managed in a manner that allowed them to be searched in
response to subpoenas and document requests:
[By Mr. Favish:] The
E-mail messages from July 14, ‘94, onward, are they are one hard drives now,
are they on tapes, are they on both, what are they on?
[By Mr. Barry:] They
currently reside in the ARMS, Automated Records Management System data
warehouse.
See June 11, 1998 Deposition of Daniel A. Barry
at 145 (H. Ex. 50)
[By Mr. Favish:] If
somebody did send or receive E-mail on their official account from home, would
be backed up and archived just as if it were sent from within their office.
[By Mr. Barry:] Yes.
See June 11, 1998 Deposition of Daniel A. Barry
at 274 (H. Ex. 50)
237.
Barry specifically testified that no e-mail
information had been lost, when in fact at least six months of e-mail had been
overwritten and lost. See June
11, 1998 Deposition of Daniel A. Barry at 229-33 (H. Ex. 50), Gallant
Testimony, August 1, 2000 Tr. at 201-203.
238.
At his
deposition on June 11, 1998, Barry testified categorically that electronic mail
that was transmitted from an external source to an individual at the Executive
Office of the President with an electronic mail identification number would be
stored in the ARMS. This deposition testimony
was false. See June 11, 1998 Deposition of Daniel A. Barry at 282-284
(H. Ex. 50); August 25, 2000 Tr. at 9.
239.
Barry spent
eight (8) to ten (10) hours preparing for this deposition, and spent five (5)
of these hours with Clinton-Gore Justice Department counsel James Gilligan and
Clinton-Gore White House counsel Sally Paxton.
See June 11, 1998 Deposition of Daniel A. Barry at 37 (H. Ex.
50).
240.
Daniel Barry’s
March 4, 1998 and March 30, 1998 Declarations and his June 11, 1998 testimony,
in addition to his subsequent July 9, 1999 Declaration (described below), do
not mention the persistent and ongoing failure of ARMS to records manage EOP
e-mail, as described in the preceding findings. See H. Ex.18, 21, 42, 44.
241.
On July 10, 1998, Barry
wrote an e-mail to his supervisor, detailing how he:
...spent about 10 hours this week reading and
marking up my declaration [sic] in the Alexander case. I faxed the pages that
needed changing to Julia Feingold [sic] at DOJ and she is to submit the changes
for inclusion into the final. I spend [sic] a considerable amount of time this
week working on the Mail2 problem.
See H. Ex. 9-114, Barry Testimony, August 14, 2000 Tr. at 73-74.
242.
Despite Barry’s
working on the Mail2 problem at the same time he was preparing an errata sheet
for his previous deposition testimony, neither Barry nor his Clinton-Gore White
House Counsel ever corrected the falsehoods in Barry’s deposition. See, e.g., H. Ex. 23.
243.
In fact, a
transcript of Barry’s deposition shows that he or someone in Clinton-Gore White
House or DOJ specifically highlighted and/or underlined Barry’s false
testimony, obviously because they were concerned about being caught. See H. Ex. 50.
M. Top
Clinton-Gore White House and Justice Department Officials Knew of Mail2 But Did
Nothing to Correct the Problem or Alert the Court and Other Proper Authorities.
244.
Contemporaneous
with the threats and false testimony, virtually all relevant top Clinton-Gore
White House officials knew of the Mail2 problem at least as early as May/June
1998. The Mail2 problem was reported
almost immediately to senior aides to President Clinton, including OA General
Counsel Mark Lindsay, OA Director Ada Posey, Assistant to the President for
Management and Administration Virginia Apuzzo, Counsel to the President Charles
F.C. Ruff, and Deputy Chief of Staff John Podesta. See Lindsay Testimony, August 23, 2000 Tr. at 5-6; Posey Testimony, August 16, 2000 Tr. at
171-72; Apuzzo Testimony, September 22, 2000 Tr. at 32-33, 67; Ruff Testimony,
August 28, 2000 Tr. at 55, Podesta Testimony, October 10, 2000 Tr. at
40-43; H. Ex. 9-1– 9-5.
245.
Each of these
high-level White House employees comprehended the fundamental nature of the
Mail2 problem and its adverse impact on the retrieval and production of
documents in response to subpoenas, document requests, and other inquiries made
to the Executive Office of the President.
See Lindsay Testimony, August 23, 2000 Tr. at 53-59, 62-69; Posey
Testimony, August 16, 2000 Tr. at 169-76; Apuzzo Testimony, September 22, 2000
Tr. at 32-35; Ruff Testimony, August 28, 2000 Tr. at 58-59; Podesta Testimony,
October 10, 2000 Tr. at 36-37, 40-43.
246.
Jason Baron, an
attorney with the Department of Justice was the administration’s Armstrong
expert. See Baron Testimony,
August 31, 2000 Tr. at 19-20, 47-48, 106.
247.
Immediately
upon learning of the Mail2 problem in May/June 1998, Mark Lindsay consulted
Jason Baron on the potential impact of the Mail2 problem on Armstrong’s
document preservation requirements.
Baron is lawyer with the Federal Programs Branch section of the
Clinton-Gore Justice Department, the section which represents the Clinton-Gore
EOP in this case. See Baron Testimony, August 31, 2000 Tr. at 45-62.
248.
After being
informed of the Mail2 problem by Laura Crabtree, Lindsay also reported the problem to Posey and
Apuzzo. See Lindsay Testimony,
August 23, 2000 Tr. at 34-35.
249.
Lindsay
requested to see Apuzzo at once, and Apuzzo made herself immediately available.
See Apuzzo Testimony, September
22, 2000 Tr. at 32-33.
250.
Lindsay
informed Apuzzo that “they had discovered . . . a problem in the
system in which e-mails were not being captured.” See Apuzzo Testimony, September 22, 2000 Tr. at 32-33.
251.
With Apuzzo’s
tacit approval, Lindsay also tried to cut Ada Posey, former Director of the OA
-- which oversees IS&T operations -- out of the loop of Mail2. See Posey Testimony, August 17, 2000 Tr. at 33-38.
252.
Eventually,
Posey became so frustrated and upset about Lindsay’s and Apuzzo’s treatment of
her she asked to be relocated to another job.
Chief of Staff John Podesta found her a job as an assistant to Bill
Richardson, Secretary of the Department of Energy. Id. at 41-46
253.
The evidence
shows that Posey wanted a transfer because she was concerned about Mail2, Mark
Lindsay’s mishandling of it, and the dangers of being involved in an ongoing
obstruction of justice. It can be also
inferred that Podesta found Posey a job with Bill Richardson to ensure her
continued participation in the cover-up.
(Then-U.N. Ambassador Richardson had also offered a job for Monica
Lewinsky, obviously to try to keep her quiet.)
254.
Apuzzo “felt it
was imperative to get the information over to the appropriate people.” See Apuzzo Testimony, September 22,
2000 Tr. at 33.
255.
Apuzzo
requested “that a memo be drafted for [her] signature” to let John Podesta and
Chuck Ruff know there was a problem. See
Apuzzo Testimony, September 22, 2000 Tr. at 33.
256.
Apuzzo
understood that the Mail2 problem had serious legal implications:
[By Plaintiffs’ Counsel:] Mr. Lindsay told you that one of the
difficulties here was the impact on document production, identification and
retrieval of documents in response to information requests?
[By Apuzzo:] I’m
sure that we got to that point, yes, sir.
See Apuzzo Testimony, September 22, 2000 Tr. at 34; see also id. at
93.
257.
Given the
serious legal implications of Mail2, Apuzzo wanted to ensure Ruff was directly
informed about Mail2. See Apuzzo
Testimony, September 22, 2000 Tr. at 35-38.
258.
Given the
serious legal implications of Mail2, Apuzzo also delegated the handling of the Mail2
matter to Lindsay, her chief counsel.
She directed Lindsay to personally brief Podesta and Ruff. See Apuzzo Testimony, September 22,
2000 Tr. at 39.
259.
A memorandum
Apuzzo asked Lindsay to draft for her signature was entitled “Technical
Anomaly in Automated E-mail Records Management System,” and was prepared
within “a matter of hours” from the time she learned about the problem. See H. Ex. 9-1– 9-5; See
Apuzzo Testimony, September 22, 2000 Tr. at 49.
260.
The memorandum
dated June 19, 1998 was sent under Apuzzo’s signature to Podesta and Ruff as a
“red dot” memo. See Apuzzo
Testimony, September 22, 2000 Tr. at 43, 45.
261.
Apuzzo used red
dots to identify important matters, and to bring such matters to her superiors’
immediate attention. See Apuzzo
Testimony, September 22, 2000 Tr. at 45-46.
262.
The June 19,
1998 memorandum plainly described the ARMS system and its critical role in
complying with subpoenas and other document requests, stating that
The main utility of the [ARMS] system is to
provide a central e-mail repository with search and retrieval capability which
ensures proper record keeping. An
important function the system supports is the identification and retrieval of
documents in response to information requests.”
See H. Ex. 9-3, 9-4 (emphasis added).
263.
The memorandum
also clearly described the computer side of the Mail2 problem:
This memorandum is to advise you of an
anomaly in the system involving the Mail2 server, which primarily supports the
day-to-day e-mail traffic of the White House Office (WHO). . . . In identifying which messages to save from
Mail2, the ARMS system was designed to recognize user identifications with an
electronic “stamp” which reads Mail2.
However, when user identifications for WHO . . . were
entered into the system, the majority were hand-keyed using all capital letters
as MAIL2. Because ARMS was not
programmed to recognize the all capital version, messages in certain
categories for these Mail2 users have not been captured by or transferred to
ARMS. These omitted types of
e-mails include: Incoming Internet e-mail[.]
See H. Ex. 9-3, 9-4 (emphasis added).
264.
The memorandum
shows that high-level Clinton-Gore White House management actually knew as
early as June 19, 1998 that there was a problem with the ARMS system associated
with the White House’s Mail2 server, that the problem resulted in a failure to
archive e-mails in the “central e-mail repository” and that, therefore, records
potentially responsive to outstanding subpoenas and document requests had not
been searched. See H. Ex. 9-3, 9-4.
265.
The fact that
this “red dot” memorandum was addressed urgently by Apuzzo to the Deputy Chief
of Staff, and forwarded to the Clinton-Gore White House Counsel, reflects the
seriousness with which the Clinton-Gore White House viewed this problem. See Apuzzo Testimony, September 22,
2000 Tr. at 45-46.
266.
After sending
the memo to Podesta and Ruff, Apuzzo directed Lindsay “to be certain that they
[Podesta and Ruff] were both briefed in person.” See Apuzzo Testimony, September 22, 2000 Tr. at 39.
267.
On or about
June 19, 1998, the same date as the Apuzzo memo, Lindsay orally briefed Podesta
and Ruff on the Mail2 problem. See
Lindsay Testimony, August 23, 2000 Tr. at 54-56, 62-63.
268.
Ruff admits
that he learned of the Mail2 problem on or about June 19, 1998 from either the
Apuzzo memo or Lindsay’s
contemporaneous briefing. See
Ruff Testimony, August 28, 2000 Tr. at 51-52; 56.
269.
A note from
Apuzzo stating that she had, that afternoon sent the memo to Podesta, is
handwritten on Ruff’s copy of the memorandum. See Ruff Testimony, August
28, 2000 Tr. at 55.
270.
Upon learning
of the Mail2 problem, Ruff understood that it related to the retrieval of
documents in response to subpoenas and documents requests in all cases, not
just the Lewinsky case, including this case. (“In the sense that if this case
involved an e-mail request for production, then it would certainly be covered
by the retrieval system.”) See Ruff
Testimony, August 28, 2000 Tr. at 57; see also id. at 66.
271.
Ruff admits
that he knew that Mail2 was a potential problem “which needed to be explored to
determine whether there had been some infection of [the] problem into past
subpoena compliance.” See Ruff
Testimony, August 28, 2000 Tr. at 61-62.
272.
Ruff knew that
failure to comply with subpoenas and failure to produce documents requested
from the Clinton-Gore White House could lead to obstruction of justice charges
on par with Watergate See Ruff
Testimony, August 28, 2000 Tr. at 66.
273.
Ruff repeatedly
admitted that problems with the integrity of Clinton-Gore White House document
productions were his responsibility See
Ruff Testimony, August 28, 2000 Tr. at 35-36; see also id. at
69, 116.
N. Failures
of Memory, Contradictory Testimony By Clinton-Gore White House Lawyers Belie
Claims of Good Faith Concerning E-mail Scandal.
274.
On June 19, 1974,
Ruff gave an interview to Bob Woodward of the Washington Post, in which
he stated that if he were ever called to testify regarding the Watergate
prosecutions at a future date, he would “say gee[,] I just don’t remember what
happened back then,” so as to avoid indictment for perjury. Ruff Testimony, August 28, 2000 Tr. at
43-45.
275.
Ruff had the
ultimate responsibility to ensure that the Clinton-Gore White House Counsel’s
Office “took appropriate steps” to deal
with the Mail2 problem, including “ensur[ing] that searches were conducted and
an appropriate response made to any subpoena or document request.” Ruff Testimony, August 28, 2000 Tr. at 86,
117; see also id. at 123-124.
276.
Ruff knew that
the Mail2 problem infected Clinton-Gore White House document productions. See Ruff Testimony, August 28, 2000
Tr. at 83.
277.
In order to
determine the scope of the Mail2 problem, Clinton-Gore White House Counsel
witnesses claimed that a test was performed on four persons’ e-mail inboxes, to
determine if the inboxes contained any unarchived e-mail from Lewinsky.
278.
There is
substantial contradictory testimony as to who ordered the purported test. See Lindsay Testimony, August 23,
2000 Tr. at 142-143 (Lindsay claims he cannot remember who ordered the test.); compare
id. at 145 (Lindsay claims Ruff ordered the test.) with Ruff
Testimony, August 28, 2000 Tr. at 63 (Ruff claims he did not order the test.)
and E-mail Hearing Testimony of Cheryl Mill (hereinafter “Mills Testimony”).
September 1, 2000 Tr. at 65 (Mills claims not to remember if Ruff ordered
the test.). See also Ruff
Testimony, August 28, 2000 Tr. at 81-82 (Ruff did not give any specific
instructions regarding the test’s scope or conduct.).
279.
There is
substantial contradictory testimony as to which four in-boxes were purportedly
ordered tested. Compare Lindsay
Testimony, August 23, 2000 Tr. at 143 (Lindsay claims Raines’s and Lewinsky’s
in-boxes tested.) with Haas Testimony, August 2, 2000 Tr. at 200 (Haas
claims Raines’s and Lewinsky’s in-boxes not tested.) (Lewinsky did not have an
in-box.). See Mills Testimony,
September 1, 2000 Tr. at 70-71 (Mills does not know which four in-boxes were
tested.).
280.
Independent of
any direction from the Clinton-Gore White House Counsel, Haas discovered
approximately 400 e-mail documents from Lewinsky in Raines’ in-box during a
cursory search on or about June 20, 1998.
See Haas Testimony, August 2, 2000 Tr. at 199-200; Haas
Testimony, August 14, 2000 Tr. at 6, 29, 183.
281.
These e-mail
documents were the missing half of the Lewinsky e-mail correspondence that
Barry had found in 1998, and consisted of incoming e-mails from Lewinsky that
were not captured on ARMS. See
Haas Testimony, August 2, 2000 Tr. at 207-208.
282.
The documents
were eventually transferred to Mills and Peterson. See Haas Testimony, August 14, 2000 Tr. at 14. See also Mills Testimony, September
1, 2000 at 72. Mills claims not to
remember who gave her the documents. Id.
283.
Peterson
allegedly compared the newly-discovered e-mail documents compiled independently
by Haas with documents that had already been produced in compliance with
subpoenas in order to determine whether previous productions were
complete. Peterson Testimony, August
28, 2000 Tr. at 200-203.
284.
Peterson claims
that she compared the newly-discovered e-mail documents with a control group of
documents that had already been produced, finding that the two batches were
identical, thus indicating that previous searches were adequate. Peterson Testimony, August 28, 2000 Tr. at
200-203.
285.
Peterson claims
that she discarded the control group as soon as the purported test was
completed. Peterson Testimony, August
28, 2000 Tr. at 207.
286.
In fact, after
being confronted with hard evidence by the Office of Independent Counsel Ms.
Peterson was forced to retract her false testimony about her so-called test of
the e-mail. See Third
Declaration of Michelle Peterson, September 27, 2000, H. Ex. 111 at attachment
2.
287.
Neither
Peterson nor Ruff ever reviewed any subpoena during the purported test to
determine if any of the newly-discovered e-mails were responsive, despite the
fact that such a review was necessary to make this determination, which was the
very reason for conducting the purported test in the first place. See Ruff Testimony, August 28, 2000
Tr. at 86; Peterson Testimony, August 28, 2000 Tr. at 202-207.
288.
Contrary to her
testimony, it was the pattern and practice of
Peterson’s and her White House Counsel Office’s not to supplement past document productions
with subsequently-discovered responsive documents, but rather to conceal any
subsequently-discovered responsive documents.
See H. Ex. 111.
289.
Peterson
testified falsely on the document productions of the Clinton-Gore White House
Counsel’s Office. See Peterson
Testimony, August 28, 2000 Tr. at 264-265, H. Ex. 111.
290.
Given
Peterson’s false testimony to this Court about the practice of Clinton-Gore
White House with respect to document production, her testimony about any test
of e-mail is presumably false.
291.
Based upon the
foregoing findings of fact and the reasonable inferences to be drawn therefrom,
the purported test never took place.
Any examination of Mail2 e-mail was only to check if and how the
substance of the e-mails would put the Clinton Administration in legal
jeopardy. (Hence, the mysterious
“search” list with the high official names of Sidney Blumenthal, Erskine
Bowles, Ira Magaziner, and John Podesta.
See Haas Testimony, August 14, 2000 Tr. at 23-27.) Once it became clear that Mail2 e-mail were
responsive to document requests from Lewinsky and other investigators, the
Clinton-Gore White House, through the use of threats to keep contractors in
line, kept investigators in the dark about Mail2 and simply shut down any real
attempt to fix the Mail2 problem.
292.
No good faith
test was never actually performed, and none of the government witnesses are
able to remember any specific details concerning who ordered the test, or its
scope, among other implausible lapses of memory. See Ruff Testimony, August 28, 2000 Tr. at 62, 65, 82-86
(Ruff claims not to remember if a subpoena was reviewed in the course of the
test.); Lindsay Testimony, August 23, 2000 Tr. at 142-145 (Lindsay claims Ruff
admitted ordering the test). Compare
id. with Ruff Testimony, August 28, 2000 Tr. at 63, Mills Testimony,
September 1, 2000 Tr. at 70. (Contradictory testimony as to whether Ruff
ordered Lindsay to do the test). Much
of the Clinton-Gore White House witnesses’ testimony is contradictory. Compare Lindsay Testimony, August 23,
2000 Tr. at 143 with Haas Testimony, August 2, 2000 Tr. at 200, Haas
Testimony, August 14, 2000 Tr. at 23-27 (Contradictory testimony as to whose
computers were ordered to be tested.). See
Mills Testimony, September 1, 2000 Tr. at 72 (Mills claims not to remember how
the newly-discovered e-mail documents came into the White House Counsel’s
Office.). See H. Ex. 111 (It was
Peterson’s and the Clinton-Gore White House Counsel’s Office pattern and
practice not to supplement document productions with newly-discovered
responsive documents.).
293.
The
Clinton-Gore White House Counsel’s Office obstruction on e-mail was part of a
deliberate “stall strategy” admitted by Peterson to Sheryl Hall to keep
information from Plaintiffs until at least after Bill and Hillary Clinton left
the White House. Second Declaration of
Sheryl L. Hall, December 7, 1999 at ¶ 7; Hall Testimony, July 13, 2000 Tr. at
95.
O. The
Fact That Lower Level Clinton-Gore White House Employees and Contractors Knew
of Mail2’s Continuing Impact on Document Production, Shows Top Officials and
Lawyers Knew As Well.
294.
IS&T’s own
employees and contractors, who were untrained in the law, recognized the continuing impact of Mail2 on document
production to courts, Congress, and the Independent Counsel. See Haas Testimony, August 14, 2000
Tr. at 34.
295.
The effect of
the failure to manage e-mail on ARMS on document production was a major concern
of Haas and the Northrop Grumman contractors with whom he worked in
IS&T. See Haas Testimony,
August 14, 2000 Tr. at 34-35.
296.
Haas knew that
it was important to get non-records managed e-mails into ARMS so it could
produced to courts, Congress, and the Independent Counsel. See Haas Testimony, August 14, 2000
Tr. at 35.
297.
Haas knew that
there were legal consequences for not producing documents in response to a
subpoena. See Haas Testimony,
August 14, 2000 Tr. at 75.
298.
After they had
told Northrop Grumman officials of the threats, the Northrup Grumman employees
expected that there would be movement to correct the problem and produce the
documents. See Haas Testimony,
August 14, 2000 Tr. at 75.
299.
After Northrop
Grumman management contacted the Clinton-Gore White House about Mail2, Haas and
the other Northrup Grumman employees thought that the project would go forward
so that the documents could be produced.
See Haas Testimony, August 14, 2000 Tr. at 75.
300.
Spriggs of
Northrop Grumman produced a plan called a Statement of Work (“SOW”) to analyze
the solution to the problem of the missing e-mail, but the plan went into a
“black hole.” See Haas
Testimony, August 14, 2000 Tr. at 75-76.
301.
After Spriggs
produced the plan, there were no instructions from Clinton-Gore White House
officials to do anything more on the project to restore the missing
e-mail. See Haas Testimony,
August 14, 2000 Tr. at 76-77.
302.
Northrop
Grumman never received an okay to proceed on the project outlined in the
SOW. See Haas Testimony, August
14, 2000 Tr. at 85.
303.
Northrup
Grumman had the capability and sophistication to solve the Mail2 problem. See Haas Testimony, August 14, 2000
Tr. at 84.
304.
Northrop
Grumman and Clinton-Gore White House knew that the Mail2 reconstruction project
had risks “due to the high visibility to the public, political, and legal
attention or requirements associated with the unrecorded documents.” See Haas Testimony, August 14, 2000
Tr. at 87; H. Ex. 24 at NGL00418.
305.
Northrop
Grumman was awaiting the Clinton-Gore White House’s approval of the SOW to
begin work to correct the e-mail problem.
August 14, 2000 Tr. at 89.
306.
Resources were
never allocated by the Clinton-Gore White House to cure the Mail2 problem. See Haas Testimony, August 14, 2000
Tr. at 137-138.
307.
Northrop
Grumman took the position that fixing Mail2 was not within the scope of the
base services contract. See
Haas Testimony August 15, 2000 Tr. at 40-41; H. Ex. 9-63.
308.
The proposal
prepared by Spriggs to study the Mail2 problem remained in limbo after Spriggs
submitted it to the Clinton-Gore White House.
See Haas Testimony, August 15, 2000 Tr. at 42.
309.
Northrop
Grumman was told by the Clinton-Gore White House only to work on a proposal to
study the problem, and not to work on the problem itself. August 15, 2000 Tr. at 42-43.
310.
When Mail2 was
discovered, it was understood and discussed by everybody involved that relevant
documents were in jeopardy of not being produced in compliance with
subpoenas. See Haas Testimony,
August 15, 2000 Tr. at 57-58.
311.
The four
Northrop Grumman employees who were at the working level of the Mail2 problem – Haas, Spriggs, Salim and
Golas – were not given resources and could not talk to anyone about getting
resources to address the Mail2 problem, which made it impossible to correct the
problem. See Golas Testimony,
August 15, 2000 Tr. at 73.
312.
Northrop
Grumman’s removal of Lambuth from the
project was another obstacle towards solving Mail2. See Golas Testimony, August 15, 2000 Tr. at 73.
313.
After Crabtree
and Lambuth had left OA, and Gallant was planning to on leaving OA, the four
Northrop Grumman employees went to Paulette Cichone (then OA Deputy Director)
in an effort to get management direction to address the Mail2 problem. See Golas Testimony, August 15, 2000
Tr. at 95-96.
314.
Golas was also
concerned that the Mail2 problem was not being resolved. See Golas Testimony, August 2, 2000
Tr. at 118-19.
315.
Daniel Barry
began sending a series of e-mails to his superiors and colleagues in the
Clinton-Gore White House expressing concern about the impact of Mail2 on
document searches. In an e-mail dated
August 13, 1998, Barry told his superior that “the records must be recreated
and any searches need to be reperformed if the requesters feel it is
necessary... This seems like a daunting
proposition but I do not see any other alternative.” See H. Ex. 9-23.
316.
The evidence
adduced to date shows that Barry’s e-mails expressing concerning about the
Mail2 problem resulted from the legal risks he faced at having being put
forward by the Clinton-Gore White House and its counsel to give false testimony
to this Court.
317.
Barry clearly
understood that the Mail2 problem required him to re-perform searches of the
ARMS system he made in response to document requests. See Barry Testimony, August 3, 2000 Tr. at 80.
318.
Barry e-mailed
his manager again on September 1, 1998 requesting a meeting to “discuss the
plan/approach for proceeding” on the Mail2 problem. See H. Ex. 9-25.
319.
Barry e-mailed
his manager and Kathleen Gallant on September 10, 1998, telling them “I am
growing increasingly concearned [sic] about the seeming lack of movement on the
Mail2 problem. Do you know where the
hold up is. We have known about this
problem for 4 months now and not a single record has been passed to ARMS...even
worse, the root problem has not been fixed.”
See H. Ex. 9-26.
320.
On October 20,
1998, Northrop Grumman submitted a proposal or Scope of Work (“SOW”) to OA for
solving the Mail2 problem. The SOW was
not only for an initial analysis of the Mail2 problem, but also included actual
reconstruction of the e-mail. See H. Ex. 25-416 to 25-465.
321.
Shortly
thereafter, on October 27, 1998, Plaintiffs served their Second Set of Requests
for the Production of Documents on the Clinton-Gore White House. Request Numbers 28-30 seek documents related
to Clinton-Gore White House e-mail.
322.
Thus for two
years - - since October of 1998 - - Defendants have had in their possession a proposal
that indicating that for $602,492.00, the missing e-mail could be reconstructed
and archived in word-searchable format.
323.
The
Clinton-Gore White House never acted on
Northrop Grumman’s proposal, and the work needed to address the Mail2 problem
was never undertaken.
324.
On November 13,
1998, Barry e-mailed his manager, James Wright, noting that Northrop Grumman
needed a “response on the MAIL2 IWO.” See
H. Ex. 9-31. An IWO is an Initial Work
Order. See Barry Testimony, August 18, 2000 Tr. at 13. By agreeing to the proposal from Northrop
Grumman in response to the IWO, the White House would have been authorizing
Northrop Grumman to undertake a comprehensive assessment of the Mail2 problem. See
Barry Testimony, August 18, 2000 Tr. at 12-13.
325.
Barry received
a copy of the Northrop Grumman response to the IWO for Northrop Grumman to
evaluate the Mail2 problem. See Barry
Testimony, August 18, 2000 Tr. at 10-12.
326.
By e-mail dated
November 12, 1998 to Joseph A. Vasta, Devere Patton, Robert Helms, John
Spriggs, James Wright, and Lynnae Roscoe on the subject of a “Mail2 meeting,”
Barry stated that it is clear that the Clinton-Gore White House cannot proceed
as described in the IWO. See Barry
Testimony, August 18, 2000 Tr. at 12-13; H. Ex. 43.
327.
Because no one
else in Clinton-Gore White House was addressing the problem, Barry took it upon
himself to read the IWO. See Barry
Testimony, August 18, 2000 Tr. at 13.
328.
Barry tried to
call a meeting with Spriggs and Vasta to discuss the Barry’s concerns about the
IWO and the need to find solutions to the Mail2 problem. See Barry Testimony, August 18, 2000 Tr.
at 13; H. Ex. 43.
329.
In this e-mail
Barry told his supervisor James Wright and the Northrop Grumman employees most
involved in the Mail2 matter that they needed to sit down and discuss it. See August 18, 2000 Tr. at 18; H. Ex.
43.
330.
Barry’s e-mail
of November 12, 1998 was prompted by week after week of meetings at which Mail2
was an action item, but there was no action and no one from the Clinton-Gore
White House was getting back to Northrop Grumman. See H. Ex. 43; Barry Testimony, August 18, 2000 Tr. at 18.
331.
From July of
1998 to February of 1999, Barry sent a continuous stream of e-mail and
memoranda to his supervisors at the EOP, including e-mail expressing his
concern that the Mail2 problem was not being addressed and its effect on
document production. See Barry
Testimony, August 21,2000 Tr. at 141-143; H. Ex. 39-1002, 9-40, 9-19, 9-22,
9-23, 9-24, 9-25, 9-52, 9-25 (E2016 and 2017), 9-26, 9-109, 9-110, 9-27, 9-30,
9-76, 9-31, 9-29, 9-76, 9-103, and 9-67.
332.
Employees of
Clinton-Gore White House and Northrop-Grumman expressed concerns that the Mail2
problem was not being addressed. See, e.g., H. Exs. 9-22, 9-23, 9-25,
9-26, 9-27, 9-30, 9-31, 9-40, and 9-52.
333.
The hierarchy
of the OA represented to its technical staff that it was investigating whether
the Mail2 problem could be addressed with Armstrong funds. See, e.g., H. Ex. 9-95, 9-123.
334.
Once she
understood the extent of the Mail2 problem in June, 1998, Kathy Gallant
realized that additional funds would be needed to fix it. See Gallant Testimony, August 1, 2000
Tr. at 140-141.
335.
Gallant knew
there were funds available in the Armstrong account and that these funds
could be requested and used to correct the Mail2 problems. See Gallant Testimony, August 1, 2000
Tr. at 140.
336.
Gallant had to
go through Mark Lindsay to get authorization to use the Armstrong funds. See Gallant Testimony, August 1, 2000
Tr. at 140.
337.
Before Gallant
had learned about Mail2, she had made a request to Lindsay to use Armstrong
funds to purchase additional equipment to be used by Tony Barry “to support the
ARMS system.” See Gallant
Testimony, August 1, 2000 Tr. at 139-140.
338.
Lindsay
indicated it would not be a problem to get the Armstrong funds to
purchase the equipment to “augment the ARMS system.” See Gallant Testimony, August 1, 2000 Tr. at 140.
339.
When she learned
about Mail2, Gallant asked Lindsay to obtain authorization to use Armstrong
funds to fix Mail2 as well. See Gallant
Testimony, August 1, 2000 Tr. at 140-141.
340.
There was
approximately $1.5 million in Armstrong funds available if the
authorization could be obtained. See
Gallant Testimony, August 1, 2000 Tr. at 140.
341.
Lindsay
indicated that it would not be a problem to get those funds to fix Mail2. See Gallant Testimony, August 1, 2000
Tr. at 140-141.
342.
Gallant made
repeated requests for funds to correct the Mail2 problem. See Gallant Testimony, August 1, 2000
Tr. at 141.
343.
Gallant was
told almost on a weekly basis that Lindsay was working on getting the
funds. See Gallant Testimony,
August 1, 2000 Tr. at 141.
344.
The funds were
never approved or received by Gallant or her department to fix the Mail2
problem. See Gallant Testimony,
August 1, 2000 Tr. at 139-142, 209-210.
345.
Other persons in addition to Lindsay were
well aware of her repeated requests for the Armstrong funds to correct
the Mail2 problem, including Ada Posey
and Paulette Cichon, as well as individuals in the financial management
department. See Gallant
Testimony, August 1, 2000 Tr. at 140. at 209-210.
P. Plaintiffs
Repeatedly Put Clinton-Gore White House and Department of Justice on Notice
Concerning Mail2.
346.
Plaintiffs’
counsel put Defendants’ counsel on notice about the Mail2 problem on multiple
occasions.
347.
In December
1998, Insight Magazine published an article entitled “Looking for
Information in all the Places,” which disclosed the existence of Project X, and
reported that a problem with a server in a White House computer system might
have resulted in the nonproduction of e-mails responsive to subpoenas by
Congressional panels and the Independent Counsel. See H. Ex. 20.
348.
On December 8,
1998, Plaintiffs’ counsel sent a letter and a copy of the Insight Article
to James Gilligan, counsel for Defendants.
The letter stated in pertinent part:
The attached articles from . . . Insight
[M]agazine reference documents that are covered by our first and second
document requests, and deposition questions.
Please take steps to assure that no documents responsive to these
requests, referenced directly or indirectly in the attached articles, are
destroyed.
Additionally, these articles raise serious
questions about the truthfulness and veracity of testimony elicited and
presented in the 30(b)(6) depositions.
See H. Ex. 20 (emphasis in original).
349.
The Insight
Article was distributed to Daniel Barry as an attachment to the summary of the
December 9, 1998 COTR meeting between Northrop Grumman and government
employees. See H. Ex. 9-63 at
NGL00252, NGL00258-NGL00259.
350.
The December 9,
1998 COTR meeting summary stated:
Northrop Grumman informed this meeting’s
attendees that it had alerted the Government about the article as soon as
Northrop Grumman discovered it.
See H. Ex. 9-63 at NGL 00253.
351.
Robert Haas
read the Insight Article “as soon as it came out[;]” and discussed it
with Sandra Golas and John Spriggs, who then reviewed it for themselves. See Haas Testimony, August 14, 2000
Tr. at 140-141.
352.
Karl Heissner
received the Insight Article from a colleague in or around December
1998. See Heissner Testimony,
August 15, 2000 Tr. at 164-166.
353.
At a December
15, 1998 Status Hearing, Plaintiffs’ counsel notified this Court and
Clinton-Gore White House counsel of the content and ramifications of the Insight
Article. Lawyers for the Clinton-Gore
White House, including Ms. Shapiro, Ms. Weismann, Mr. Gilligan, Ms. Giles, and
Ms. Paxton, were present at this hearing.
See December 15, 1998 Tr. at 2, 12-13.
354.
The Court
provided Clinton-Gore White House
counsel with the opportunity to rebut the allegations made in the Insight
Article, and Clinton-Gore White House lawyer Elizabeth Shapiro
represented that she did not have enough information to do so:
THE COURT: One
other issue, Ms. Shapiro, since [Mr. Klayman] raised this issue about the
hundred thousand e[-]mails and handed up that article, do you want to say
anything more about that? I will give you the opportunity since he sprung that.
MS. SHAPIRO: I
don’t have enough information right now to be able to give you a full
explanation.
THE COURT: I
just don’t want you to say that I didn’t give you the chance.
See December 15, 1998 Tr. at 34.
355.
Michelle
Peterson saw the Insight Article during a hearing before this Court in
December 1998, and understood that the article questioned the completeness of
document productions. See E-mail
Hearing Testimony of Michelle Peterson (hereinafter “Peterson Testimony”)
August 28, 2000 Tr. at 176-178. She
stated during examination by Plaintiffs’ counsel:
I understood when you . . . were asking the
question in court [in December 1998] and raising the [December 8, 1998] letter
that you were questioning whether the document production had been complete.
See Peterson Testimony, August 28, 2000 Transcript at 177-178.
356.
After seeing
the Insight Article, Ms. Peterson discussed it with Clinton-Gore Justice
Department lawyers, either Mr. Gilligan, Elizabeth Shapiro, or Allison
Giles. During these discussions,
Clinton-Gore Justice Department lawyers questioned Ms. Peterson regarding
allegations made in the Insight Article about the e-mail problem. See Peterson Testimony, August
28, 2000 Transcript at 180-183.
357.
Northrop
Grumman also discussed the Insight article with the Clinton-Gore White
House around the time it was published in December, 1998. On December 11, 1998, Joseph A. Vasta,
Project Manager for Northrop Grumman, prepared a Memorandum to DeVere Patton,
the Clinton-Gore White House’s COTR on the Northrop Grumman contract concerning
the “Weekly COTR Meeting December 9, 1998.”
H. Ex. 9-63 at 1.
358.
The COTR is the
Contracting Officer’s Technical Representative, and the weekly COTR meeting is
a meeting between the COTR and the contractor “to go over issues related to the
contract from a technical perspective.”
See Barry Testimony, August 3, 2000 Tr. at 168.
359.
Enclosed with
the December 11, 1998 meeting notes from Vasta was a copy of the December 8,
1998 Insight Article “Looking for Information in All the Wrong
Place.” See H. Ex. 9-63 at 1.
360.
Northrop
Grumman “read a portion of and then provided to the Government a hardcopy of”
the Insight Article at the December 9, 1998 meeting. See H. Ex. 9-63 at 2.
361.
Northrop
Grumman “alerted the Government about the article as soon as Northrop Grumman
discovered it.” See H. Ex. 9-63
at 2.
362.
At the December
9, 1998 meeting, “Northrop Grumman emphasized it would proceed with [the Mail2
E-mail Reconstruction project] as it would with any other technical problem
[and] re-emphasized that no actions on [Northrop Grumman’s] part has been or
will be clandestine in any way.” See
H. Ex. 9-63 at 2.
363.
The December 9,
1998 COTR meeting was attended by Clinton-Gore White House employees Dale
Helms, DeVere Patton, Tracy Breeding, and David Peterson. See H. Ex. 9-63 at 1.
364.
The COTR meeting
notes with the attached Insight article were also sent to the following
Clinton-Gore White House employees: Tony Barry, Dale Helms, Lynnae Roscoe,
Tracy Breeding and David Peterson. H.
Ex. 9-63 at 1.
365.
Mark Lindsay
became aware of, and read, the Insight Article prior to his March 1999
testimony before the House Committee on Government Reform. See Lindsay Testimony, August 23,
2000 Tr. at 102, 116.
366.
At an April 8,
1999 Rule 108(m) conference which covered e-mail issues, Plaintiffs’ counsel
reinforced to Mr. Gilligan the gravity of the e-mail problem, and specified
that it therefore affected previous Clinton-Gore White House’s document
production and testimony. In response,
Mr. Gilligan did not confirm or deny the Insight article. See Declaration of Thomas Fitton,
attached hereto as H. Ex. 142.
367.
In the case of Barr
v. EOP, Case No. 1:99cv09165 (JLG), Plaintiffs’ counsel filed for another
client, Representative Bob Barr, a First Set of Requests for Production of
Documents to Defendant EOP on October 18, 1999, which made a specific reference
to non-records-managed e-mail. See
Plaintiff’s First Set of Requests for Production of Documents to Defendant
Executive Office of the President, attached hereto as H. Ex.143 at 4
(“including both records managed e-mail and . . . non records managed e-mail,
which said non records managed e-mail is sometimes known or referred to as
‘mail 2’”)).
368.
Daniel Barry
and Michelle Peterson performed the search for responsive documents pursuant to
this request. See Peterson
Testimony, August 28, 2000 Tr. at 239-241.
369.
In objections
to a specific request to search unrecorded e-mail and a reference to Mail 2,
the Clinton-Gore White House and the Department of Justice made no mention of
this e-mail issue, filing another materially false pleading before this
Court. See Response of Defendant
EOP to Palintiffs First Set of Requests for Production of Documents filed on
December 21, 199 in Barr v. EOP Case
No. 1:99cv09165 (JLG).
Q. Northrop
Grumman Officials and Their Counsel Were Notified of the Threats, Obstruction
of Justice, And Worked With The Clinton-Gore White House To Coverup These
Ongoing Crimes.
370.
In August 1998,
Robert Haas and his colleagues sought a meeting with their Northrop Grumman
managers to discuss Project X because individuals like Betty Lambuth who were
directly involved with Project X were leaving the agency. They wanted to talk to counsel at Northrop
Grumman “to see if [they] were protected from this happening to [them].” See Haas Testimony, August 14, 2000
Tr. at 54.
371.
At that
time, Steve Hawkins was Northrop
Grumman’s Program Manager for the EOP contract, but was preparing to leave the
Clinton-Gore White House. Joseph Vasta
became Hawkins’ executive officer to learn Hawkins’ position in preparation for
taking over upon Hawkins’ leaving the Clinton-Gore White House. See E-mail Hearing Testimony of
Joseph Vasta (hereinafter “Vasta Testimony”), November 3, 2000 (morning
sesssion) Tr. at 29.
372.
On August 28,
1998, Haas, John Spriggs and Sandra
Golas (the” Project X team”) met with Vasta and attempted to discuss Project X
without telling Vasta what Project X was since they had been threatened by Mark
Lindsay and Laura Crabtree with retaliation if they disclosed the details of
Project X to anyone, including their managers.
See Vasta Testimony, November 3, 2000 Tr. (morning session) at 29
- 34.
373.
At that
meeting, Haas, Spriggs and Golas told Vasta that they were not allowed to make
notes about Project X, that they were not allowed to discuss Project X with
anyone else, and that any meetings they had about Project X had to be out of
the earshot of anyone else. See Vasta
Testimony, November 3, 2000 Tr. (morning session) at 29-30; H. Ex. 120 at 2
(“Summary of Project X Discussions”).
374.
Following the
meeting, Spriggs reminded Vasta that they were not to make notes about Project
X and asked Vasta for the notes that he had made during the meeting. Vasta turned these notes over to Spriggs and
has not seen them since. See Vasta
Testimony, November 3, 2000 (afternoon session) Tr. at 6-9; H. Ex. 122 at 31.
375.
On September 2,
1998, the Project X team had a follow up meeting with Steve Hawkins and Vasta,
and informed them that they wanted to speak with a Northrop Grumman
attorney. See H. Ex. 120 at 2
(“Summary of Project X Discussions”).
376.
The next
day, while Hawkins and Vasta were meeting in Hawkins’ office, Haas came in and informed them that he had
been threatened by Clinton-Gore White House employees with jail if he did not
keep Project X secret. See Vasta
Testimony, November 3, 2000 (morning session) Tr. at 29-30; E-mail Hearing Ex.
120 at 2 (“Summary of Project X Discussions”).
377.
Significantly,
though two years have elapsed, Lucente remembered the threat with the same
wording as that testified to by Haas. Compare
Vasta Testimony, November 3, 2000 (first) Tr. at 33 (“[Haas] used the term – he
was told there was a jail cell with his name on it.”) with Haas Testimony,
August 14, 2000 Tr. at 36 (“The words were obvious. We have a jail cell with your name on if you tell anybody.”).
378.
Vasta’s
impression from these meetings was that the Project X team had been put in a
no-win situation by Lindsay and Crabtree who had directed them to work on
Project X while simultaneously threatening to fire them if they discussed the
project with anyone including their managers.
See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at
2-6; H. Ex. 122 at 30.
379.
At this time,
Jim DeWire was employed by Northrop Grumman as the Operations Unit Program
Director and was the immediate supervisor of Hawkins and Vasta. See E-mail Hearing Testimony of
Joseph Lucente (hereinafter “Lucente Testimony”), November 1, 2000 Tr. at 60,
82-83.
380.
Hawkins and
Vasta reported their conversations with Haas and his team to Jim DeWire, who
requested that Vasta prepare a brief summary of the events surrounding the
meetings. See Vasta Testimony,
November 3, 2000 (afternoon session) Tr. at 22-23.
381.
In response to
this request, Vasta prepared a document titled “Summary of Project X
Discussions” which he faxed to Jim DeWire’s administrative assistant on
September 9, 1998. The fax cover sheet
indicated that the fax was “urgent.” See
Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 5, 22; H. Ex.
120. Vasta confirmed the accuracy of
this summary during his testimony on November 3, 2000. See Vasta Testimony, November 3, 2000
(afternoon session) Tr. at 23.
382.
What troubled
Vasta about Project X was that good people were threatened by the Clinton-Gore
White House. See Vasta
Testimony, November 3, 2000 (morning session) Tr. at 28. He believed that the employees were under
duress and needed somebody to intervene and rectify the situation. See Vasta Testimony, November 3, 2000
(afternoon session) Tr. at 11.
383.
Vasta’s Summary
of Project X Discussions notes that the team had been instructed not to discuss
Project X with anyone because a Clinton-Gore White House employee (Barry) was
preparing to testify on Capitol Hill about a search for e-mail related to
Monica Lewinsky. H. Ex. 120 at
2-3. Haas had also told Vasta that
e-mails from, to or about Monica Lewinsky were not being archived and had not
been delivered in response to requests for documentation and that this
information was not included in Barry’s testimony on Capitol Hill. See Vasta Testimony, November 3, 2000
(afternoon session) Tr. at 24-25.
384.
Plaintiffs have
found no record of Daniel Barry testifying on Capitol Hill in 1998. Barry did testify to Plaintiffs in on June
11, 1998. The above facts show that the
Clinton-Gore White House intended to prevent accurate and complete testimony
from being made to this Court and that they used threats to try effect this
obstruction. Having discovered Mail2 in
January, 1998, Barry already knew about Mail2 and related issues, yet Barry’s
supervisors at the Clinton-Gore White House (Lindsay et. al ) did not
know the full extent of his knowledge and thus sought to try to keep additional
Mail2 information from him so he could not testify to this Court.
385.
After Vasta
faxed the Summary on September 9, 1998, either DeWire or Joseph Cunningham (the
Northrop Grumman Unit Director) called Joseph Lucente and requested that a
meeting be set up on an emergency basis that day with Northrop Grumman
corporate counsel. See Lucente
Testimony, November 1, 2000 Tr. at 81-85.
386.
The meeting was
arranged for the same day and was attended by Lucente, Cunningham, Haas,
Spriggs, Golas and Ralph K. Pope, Esquire.
See Lucente Testimony, November 1, 2000 Tr. at 81.
387.
Pope was
Northrop Grumman’s Sector General Counsel.
See Lucente Testimony, November 1, 2000 Tr. at 104.
388.
Northrup
Grumman has asserted the attorney client privilege to keep the contents of this
meeting and the follow up activity by Northrop Grumman and its attorneys
secret. See, e.g.,
Lucente Testimony, November 1, 2000 Tr. at 84-85; E-mail Hearing Testimony of
Earl J. Silbert (hereinafter “Silbert Testimony”), October 3, 2000 Tr. at
55-57.
389.
Nevertheless,
testimony has confirmed that the Northrop Grumman employees were threatened and
that these threats were discussed at this meeting. See Lucente Testimony, November 1, 2000 Transcript at 84
(“Q. Did they tell you that these employees told them that they had been
threatened by White House officials? A.
Only at the meeting.”); Haas Testimony, August 14, 2000 Tr. at 60 (“Q. Mr. Haas, during this meeting at headquarters
in [Herndon] of Northrop Grumman ... you did relay the threats that had
occurred?” A: Yes.”).
390.
Following the
meeting, Northrop Grumman hired Earl J. Silbert, Esquire to contact the
Clinton-Gore White House regarding Project X.
E-mail Hearing Testimony of H. Lowell Brown, Esquire (hereinafter “Brown
Testimony”), December 22, 2000 Tr. at 37.
H. Lowell Brown, Esquire was the Assistant General Counsel of Northrop
Grumman and reported directly to the corporations General Counsel. Brown Testimony, December 22, 2000 Tr. at 5
- 7. He was Silbert’s law clerk in 1975
and in 1977 became an assistant United States Attorney serving under
Silbert. Brown Testimony, December 22,
2000 Tr. at 37 - 38. Brown also served
with Ruff when he was the United States Attorney and had communicated with him
since he left office. Brown Testimony,
December 22, 2000 Tr. at 39.
391.
Silbert was
United States Attorney from 1974 to 1979.
See Silbert Testimony, October 3, 2000 Tr. at 22 - 23. Ruff also served as United States Attorney
but after Silbert had left the position.
Silbert considers himself a friend of Ruff. See Silbert Testimony, October 3, 2000 Tr. at 35 - 36.
392.
The majority of
Silbert’s practice is devoted to handling criminal defense and professional ethics
matters. See Silbert Testimony,
October 3, 2000 Tr. at 22 - 24, 80. He
is not a government contracts lawyer. Id.
393.
Silbert
represents James Riady and Erskine Bowles.
See Silbert Testimony, October 3, 2000 Tr. at 31; Breuer
Testimony, October 19, 2000 Tr. at 67 - 68.
394.
Normally,
Northrop Grumman called on Neal O’Donnel, Esquire for contractual matters. Lucente Testimony, November 1, 2000 Tr. at
57.
395.
Based on the
above facts, an evidentiary inference arises that Silbert was hired by Northrop
Grumman for his criminal defense expertise, because Northrop Grumman knew they
were at risk for being involved in an
ongoing criminal obstruction of justice with Clinton-Gore White House. In addition to valuing his criminal defense
expertise, Northrop Grumman also hired Silbert because of his friendly contacts
with Ruff and the Clinton-Gore White House Counsel’s Office.
396.
Immediately
following the September 9, 1998 meeting, Joseph Lucente drafted a letter to be
sent to Dale Helms, the White House contracting officer concerning the issues
raised at the meeting. See Lucente
Testimony, November 1, 2000 Tr. at 11, 13.
397.
Lucente
exchanged drafts of the letter with Ralph Pope by e-mail. The letter went
through approximately five drafts before being finalized. See Lucente Testimony, November 1,
2000 Tr. 13, 15.
398.
Lucente, Pope
and Burks Terry, Esquire, Deputy General Counsel for Northrop Grumman, decided
not to mention the threats in the final version of the Lucente letter. See Lucente Testimony, November 1, 2000 Tr. at 100 - 102. (“Q. So it was your decision not to put the
threats in here? Calls for a yes or
no. A. It was a cooperative
decision. Q. And the decision was not
to put the threats in here? A.
Yes. Q. and who specifically made the
cooperative decision with you? A. Are
you aski8ng who assisted in the construction of this letter? ... THE WITNESS:
Yes, it was Mr. Pope. ... THE COURT: Who Else? ... THE WITNESS: Burks Terry”).
399.
After Lucente
received the subpoena in this case on October 30, 2000, he asked Ralph Pope if
he had any of the drafts of the September 14, 1998 letter to Helms and Pope
told him that he did not have any drafts.
See H. Ex.112; Lucente Testimony, November 1, 2000 Tr. at 21 -
22.
400.
In fact, copies
of the draft of the letter did exist and were in the custody and control of
Northrop Grumman and its counsel at the time Pope made this statement to
Lucente. See H. Ex. 110 at 4,
Privilege Log Entries 6 - 9.
401.
Lucente
acknowledged that the threatening of Northrop Grumman employees was a serious
event, but was evasive in answering how Northrop Grumman intended to raise the
issue with the White House. At first,
Lucente stated that Northrop Grumman intended to deal with the issue of the
threats by virtue of his letter to Mr. Helms, but then, under persistent
questioning, he was forced to concede that the issue was not even mentioned in
the letter, since the threats were omitted from the letter. Lucente Testimony, Id. at 97 - 103.
402.
It thus is
evident that the Northrop Grumman intended to handle the issue of Clinton-Gore
White House threats through other means – Earl Silbert’s contacts with Ruff and
the Clinton-Gore White House Counsel’s Office.
403.
Drafts of the
Lucente to Helms letter were forwarded to Silbert by Pope for Silbert’s input
before the letter was mailed on September 14, 1998. E-mail Hearing Ex. 110 at 4, Privilege Log Entries 5 - 8.
404.
Silbert also
interviewed Haas on September 11, 1998 who recounted how he and his fellow
Northrop Grumman employees had been threatened if the did not keep the Mail2
problem secret. See H. Ex.110 at
4, Privilege Log Entry 11; Silbert
Testimony, October 3, 2000 Tr. at 54; Haas Testimony, August 14, 2000 Tr. at
56-57.
405.
After the
original of the Lucente to Helms letter was mailed, a copy was also sent to the
Clinton-Gore White House Counsel’s Office by Silbert with a note indicating
that Northrop Grumman was available to answer any questions they had. See Brown Testimony, December 22,
2000 Tr. at 23-24.
406.
Brown then
directed Silbert to contact the White House Counsel’s Office to confirm that
they had received the copy of the letter.
See H. Ex. 110 at 5; Privilege Log Entry 16; Brown Testimony,
December 22, 2000 Tr. at 57-58.
407.
Brown recalls
calling Silbert to confirm that Silbert had called the White House Counsel’s
Office, but cannot recall anything about the conversation, including what he
asked Silbert or what Silbert said the White House Counsel’s Office told him. See Brown Testimony, December 22,
2000 Tr. at 57 - 58.
408.
The weight of
the evidence shows that Brown’s testimony on his failure to recall what he
discussed with Silbert about Silbert’s contact with the Clinton-Gore White
House Counsel’s Office is false. See Brown Testimony, December 22, 2000
Tr. at 57 - 58.
409.
Silbert has
testified that he does not remember the telephone call to the Clinton-Gore
White House Counsel’s Office on September 28, 1998, does not remember who he
spoke to in the Clinton-Gore White House Counsel’s Office, and does not recall
the substance of the conversation or even why there was a conversation. See Silbert Testimony, October 3,
2000 Tr. at 57-58.
410.
The weight of
the evidence shows Silbert’s memory loss about his contacts with the
Clinton-Gore White House is also feigned.
Id.
411.
Northrop
Grumman and Silbert are clear that the specific purpose for which Silbert was
hired was to contact the Clinton-Gore White House concerning Mail2. See Silbert Testimony, October 3,
2000 Tr. at 37, 40 - 41, 53; Brown Testimony, December 22, 2000 at 37-38,
72-74, Pope Testimony, December 22, 2000 Tr. at 141.
412.
Yet Silbert,
Brown, Pope and Breuer have all suffered a complete loss of memory as to
anything Silbert communicated to the White House or anything the White House
may have communicated to Silbert. See
Silbert Testimony, October 3, 2000 Tr. at 37, 39, 58, 60, 79, 80, 83, 86 and 93
and December 20, 2000 Tr. at 27-30,
34-35, 44-45, 48-49, 71-72, 75; Brown Testimony, December 22, 2000 Tr. at 24 -
25, 33, 34, 49 - 51, 53, 54, 57 - 62; Pope Testimony, December 22, 2000 Tr. at
162 - 164, 166 - 171; Breuer Testimony, October 19, 2000 Tr. at 68 - 70.
413.
On December 9,
1998, Vasta, attended the weekly Contracting Officer’s Technical Representative
(COTR) meeting at which Dale Helms,
DeVere Patton and Tony Barry of the EOP were present. See 9-63
at 1; Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 37;
Barry Testimony, August 3, 2000 Tr. at 168.
At this meeting, Vasta provided the attendees with a copy of the
December 8, 1998 Insight Article “Looking for Information in All the
Wrong Place” which Vasta had received from Haas. See H. Ex. 9-63 at 1; Vasta Testimony, November 3, 2000
(afternoon session) Tr. at 37. A copy
was also sent to Helms, Patton and Barry by Vasta with his December 11, 1998 Memorandum of minutes of
the weekly COTR meeting.
Northrup-Grumman “alerted the Government about the article as soon as
Northrup-Grumman discovered it.” E-mail
Hearing Ex. 9-63 at 1.
414.
A copy of the Insight
article was also sent by Pope to Silbert.
E-mail Hearing Testimony of Ralph K. Pope, Esquire (hereinafter “Pope
Testimony”), December 22, 2000 Tr. at 195.
415.
Silbert called
the White House Counsel’s Office about this article. See E-mail Hearing Exhibit 110 at 5, Privilege Log Entry
17; Silbert Testimony, December 20, 2000 Tr. at 32-34.
416.
Silbert’s call was returned by Special
Counsel to the President Lanny Breuer, Esquire. See H. Ex. 110 at 5, Privilege Log Entry 15; H. Ex.109.
417.
The phone
message slip from December 30, 1998 noting a call from Breuer to Silbert
indicates that Silbert spoke with Breuer, but Silbert does not recall the
conversation or who he spoke with. See
Silbert Testimony, December 20, 2000 Tr. at 32-33. Breuer does not recall ever speaking to Silbert about Mail 2. See Breuer Testimony, October 19, 2000
Tr. at 59-69.
418.
On a copy of
the fax cover sheet that accompanied the Insight article from Brown,
Silbert wrote the following note concerning a phone conversation with the White
House Counsel’s Office: “On 12-30-98, EJS; W-H Counsel; checked again - all
taken care of. No Committee yet raising
issues.” See H. Ex. 110 at 5,
Privilege Log Entry 13; Silbert Testimony, December 20, 2000 at 32-33.
419.
While Silbert
was careful to note that the “W,” “H” and “C” were capitalized in “W-H Counsel”
from his December 30, 1998 notes, he failed to note this regarding the “C” in
“Committees” until pressed to tell the truth by Plaintiffs’ counsel. Silbert Testimony, December 20, 2000 Tr. at
33, 68-69.
420.
Based on the
totality of the evidence, the reference on Silbert’s fax sheet, “On 12-30-98,
EJS; W-H Counsel; checked again - all taken care of. No Committee yet raising issues,” is to the fact that all is
“taken care of” because the obstruction was then continuing and no
Congressional Committees were “raising issues” with respect the hidden e-mail.
421.
The contract
between Northrop Grumman and the Clinton-Gore White House was worth over
$50,000,000 in revenue to Northrop Grumman.
See Lucente Testimony, November 1, 2000 Tr. at 38.
422.
The contract
was an “Award Fee” contract, meaning that the amount of some of the payments
under the contract would depend on the Clinton-Gore White House’s evaluation of
Northrop Grumman’s performance. See Lucente
Testimony, November 1, 2000 Tr. at 39-40.
The contract is structured so that Northrop Grumman’s costs are covered
under the base contract but it only earns a profit based on this discretionary
award fee determination portion of the compensation. See Vasta Testimony, November 3, 2000 (afternoon session)
Tr. at 128.
423.
Prior to
December 1998, Northrop Grumman’s performance had been evaluated as very good
to outstanding by the Clinton-Gore White House. See Vasta Testimony, November 3, 2000 (afternoon session)
Tr. at 41-42
424.
In January,
1999, immediately following publication of the Insight article, Vasta
was told by persons (ANYONE SPECIFICALLY?) in the Clinton-Gore White
House that Mark Lindsay wanted to talk to Northrop Grumman management about
problems under the contract. See
Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 43 - 45.
425.
On April 2,
1999, Vasta finally received the Clinton-Gore White House’s Award Fee
Determination covering the period from February 1, 1998 to September 30,
1998. See H. Ex. 131.
426.
The evaluation
of Northrop Grumman’s performance was lower than prior evaluations. Vasta Testimony, November 3, 2000 (afternoon
session) Tr. at 118 - 121.
427.
This evaluation
was in conflict with prior evaluations of Northrop Grumman’s performance
covering the same period provided by Jim Wright and Patton DeVere (both COTRs
for the Clinton-Gore White House at the time the evaluations were made) which
rated Northrop Grumman’s performance of very good to outstanding. Vasta Testimony, November 3, 2000 (afternoon
session) Tr. at 41-42, 129.
428.
Lindsay and the
Clinton-Gore White House retaliated against Northrop Grumman through the award
fee determination over the publicity surrounding the e-mail problems. Vasta Testimony, November 3, 2000 (afternoon
session) Tr. at 40 - 45, 120, 124 - 125, 128 - 131. (“Q. So it was your decision not to put
the threats in here? Calls for a yes or
no. A. It was a cooperative
decision. Q. And the decision was not
to put the threats in here? A.
Yes. Q. and who specifically made the
cooperative decision with you? A. Are
you aski8ng who assisted in the construction of this letter? ... THE WITNESS:
Yes, it was Mr. Pope. ... THE COURT: Who Else? ... THE WITNESS: Burks Terry”).
429.
People (WHO?) within the Clinton-Gore White
House let Vasta know that this was a means of “bringing pressure to bear on
Northrop Grumman to conform to the EOP’s wishes” and that “... Northrop Grumman
had to get in line and do the things that they were asking us to do.” Vasta Testimony, November 3, 2000 (afternoon
session) Tr. at 41, 130 - 131.
430.
When Vasta left
the Clinton-Gore White House, he requested an evaluation of his performance by
the President of his division, Greg Donnelly.
When he asked Mr. Donnelly about things he may have done wrong, Mr.
Donnelly did not cite any specific failures, but instead stated that Vasta was
in the wrong place at the wrong time, meaning that he was removed from the EOP
for his refusal to tow the Clinton-Gore White House’s line on Mail2. See Vasta Testimony, November 3, 2000
Tr. at 134 - 136.
431.
The evidence
detailed above shows that Northrop Grumman officials and lawyers were notified
of the threats and resulting obstructing of justice in this case, but took no
remedial action.
432.
The evidence
also shows that Silbert was aware of the threats to Northrop Grumman employees
and discussed these threats with the Clinton-Gore White House. See Haas Testimony, August 14, 2000
Tr. at 60 (Haas told Mr. Pope and others about the threats at the September 9,
1998 meeting); Lucente Testimony November 1, 2000 Tr. at 100 - 02 (counsel,
including Pope and Burks, participated in decision not to discuss the threats
in the Lucente letter); Brown Testimony December 22, 2000 Tr. at 21 - 22 (Brown
participated in drafting the Lucente letter); E-mail Hearing Ex. 110 at 4,
Privilege Log Entries 6 - 9 (Silbert received and edited drafts of the Lucente
letter); Brown Testimony, December 22,
2000 Tr. at 5, 69 - 70 (the reason
Brown directed Silbert to contact the White House Counsel’s office was to
discuss the Lucente letter with that office); E-mail Hearing Ex. 110 at 4, Privilege
Log Entry 16 (Silbert contacted the White House Counsel’s Office as Brown had
directed on September 28, 1998); Brown Testimony, December 22, 2000 Tr. at 57 -
58 (Brown called Silbert to confirm that Silbert had called the White House
Counsel’s Office).
433.
The evidence
detailed above shows that Earl Silbert contacted Lanny Breuer and/or Charles
Ruff in the White House Counsel’s Office about the threats to Northrop Grumman
contractors. The Clinton-Gore White
House and their representatives of the White House Counsel Office thereby
testified falsely when they claim they did not hear of the threats until the
threats became public. See Ruff
Testimony, August 28, 2000 Tr. at 72 - 73; Breuer Testimony, October 19, 2000
Tr. at 55; Mills Testimony, September 1, 2000 Tr. at 97; Peterson Testimony,
August 28, 2000 Tr. at 260.
434.
The evidence
detailed above shows that Northrop Grumman remained silent (misprision) about
this obstruction of justice, threats, and witness tampering even as its
employees and subcontractors were being threatened and removed from the
Clinton-Gore White House. The weight
of the evidence shows that this silence was for two reasons: 1) Northrop
Grumman was concerned about the legal implications of its role in the Mail2
issue; 2) Northrop Grumman did not want to lose its $50 million plus contract
with the Clinton-Gore White House.
435.
Further
evidence of Northrop Grumman’s conspiracy with its customer, the Clinton-Gore
EOP, and obstruction of this Court’s proceedings can be found in the manner in
which document productions, especially production of the document “Summary of
Project X Discussions,” has been handled.
436.
On November 1,
2000, during Mr. Lucente’s appearance before this court, he disclosed that he
had documents pertaining to the Mail2 problem in his brief case but that he had
left the brief case at his attorneys office.
At the Plaintiffs’ request, the Court recessed in order to allow Mr.
Lucente to retrieve and produce these documents. Among the documents produced from his brief case was a copy of
the document titled “Summary of Project X Discussions” which Vasta had authored
at the request of his management to summarize what he had learned from Haas,
Spriggs, Golas and Hawkins during several meetings in August and September,
1998. See E-mail Hearing Exhibit
113; Lucente Testimony, November 1, 2000 Tr. at 22 - 33; Vasta Testimony,
November 3, 2000 (second) Tr. at 23.
437.
During Mr.
Vasta’s testimony on November 3, 2000, he produced documents bearing Bates
numbers JV00002 through JV000333. These
documents were only produced to Plaintiffs the morning of Vasta’s
testimony. Vasta Testimony, November 3,
2000 (first) at 4.
438.
Within these
documents was another copy of the “Summary of Project X Discussions,” with a
fax cover sheet from Lucente to Laneta McCorkle, Jim DeWire’s administrative
assistant, dated September 9, 1998 and marked “Urgent.” This document was buried at Bates numbers JV
78 - 79. See Vasta Testimony,
November 3, 2000 (first) at 12 - 13; E-mail Hearing Exhibit 120.
439.
Vasta has now
disclosed that this document, as well as the remaining documents he produced at
his appearance on November 3, 2000, had previously been provided to Earl
Silbert, Esquire and Jack Bray, Esquire during a one to two hour meeting Vasta
had with them in mid-June of this year to discuss the Mail2 problem. See Vasta Testimony, November 3,
2000 (first) at 19 - 24.
440.
These
documents, and especially the “Summary of Project X Discussions,” are obviously
relevant to this case and responsive to numerous subpoenas that have been
issued to Northrop Grumman, its managers and attorneys. See E-mail Hearing Exhibits 90, 95,
112, 119, 141. Nevertheless, this
document had not been produced to Plaintiffs prior to Lucente’s testimony. See Lucente Testimony, November 1,
2000 Tr. at 33 - 34; Vasta Testimony, November 3, 2000 (first) at 15 - 18.
441.
Given the
obvious relevant and damaging content of the “Summary of Project X” combined
with the fact that it has been in the possession of numerous company managers
and attorneys, as well as the fact that as recently as June, 2000 it was
reviewed by a key Northrop Grumman manager with his personal attorney and
Northrop Grumman’s attorney in a lengthy meeting having to do with this case,
the failure to produce this document simply cannot be explained by innocent
oversight or inadvertence. Accordingly,
the Court infers and will find as a fact that this document was deliberately
withheld by Northrop Grumman and its counselbecause Northrop Grumman recognized
that the document, as explained by Vasta in his testimony, confirms that its
upper management and attorneys were notified of the threats to their employees
prior to retaining Earl Silbert to contact the White House Counsel’s
Office. See E-mail Hearing
Exhibit 120; Vasta Testimony, November 3, 2000 (first) Tr. at 29-30; Vasta Testimony, November 3, 2000 (second)
Tr. at 2-6, 11, 22 - 25.
R. Despite
Warnings from Plaintiffs and Others about Mail2, Clinton-Gore White House
Continued to Present False Testimony and Withhold Information from the Court, Congress,
and the Office of Independent Counsel.
442.
In preparation
for Mr. Lindsay’s testimony before the House Subcommittee on the Treasury,
Postal Service, and General Government Appropriations concerning the OA’s
appropriations request in March of 1999, input as to budgetary requirements
were sought from OA staff. See Heissner
Testimony, August 16, 2000 Tr. at 29-32.
443.
Nevertheless,
the OA staff identified Mail2 reconstruction as a budgetary requirement and
included it in drafts of the briefing book prepared for Lindsay’s March, 1999
testimony. See Lindsay
Testimony, August 23, 2000 Tr. at 156-157; H. Ex. 9-134 at E4395-4396.
444.
On February 5,
1999, citing the activities of “litigants against the government , ” Karl
Heissner (an IS&T Branch Chief), counseled against “call[ing] undue
attention to the [Mail2] issue by bringing the issue to the attention of
Congress,” and in favor of “Let[ting] sleeping dogs lie[.]” See H. Ex.
35A
445.
All references
to Mail2 and the funding required to solve Mail2 was deleted from the briefing
book just prior to Lindsay’s appearance.
See Lindsay Testimony, August 23, 2000 Tr. at 157-158; H. Ex.
9-134 at E4395-4396.
446.
Lindsay did not
mention the Mail2 problem in his prepared statement or in his testimony before
the Appropriations Subcommittee, nor was Mail2 mentioned or funds for Mail2
reconstruction included in the OA’s 1999 budget request. See Lindsay Testimony, August 23,
2000 Tr. at 156-158; H. Ex. 36A.
447.
Although
Lindsay has stated that Y2K projects were consuming available resources in late
1998 and early 1999, as manager of the project he took no action to request
additional funds to address the Mail2 problem.
See Lindsay Testimony, August 23, 2000 Tr. at 159-162.
448.
As it was in
his briefing materials for his testimony, Lindsay was obviously aware of the
Mail2 problem and the requirements to correct Mail2 when he testified to
Congress in March 1999. See H.
Ex. 9-134.
449.
Funds were
available for Mail2 reconstruction. The
OA Armstrong account had $981,000 available for use in 1998 and another
$500,000 may have been available from NARA.
See H. Ex. 9-99.
450.
Lindsay did
nothing at all to address the Mail2 problem and missing e-mails.
451.
Lindsay did not
bring the Mail2 and missing e-mail problem to the attention of Congress, the
Independent Counsel, or this Court prior to February of 2000, nor did he do so
voluntarily any time thereafter.
452.
The evidence
shows Lindsay’s repeated promises to Gallant to look into the use of the funds
were lies intended to delay and prevent public discovery of the e-mail.
S. Despite
Being on Notice, Barry, Clinton-Gore White House, and Justice Department
Continue to Obstruct Justice and Commit Perjury By Filing An Additional False Declaration
With This Court.
453.
In April, 1999,
the Clinton-Gore White House uncovered another e-mail problem it withheld from
this Court.
454.
On April 9,
1999, the Clinton-Gore White House discovered that e-mail for users whose last
names begin with the letter “D” had not been records managed (archived on ARMS)
since November, 1998. See H. Ex. 9-125
at 2.
455.
The e-mail for
these users continued to be non-records managed until the programming error was
not corrected until June,1999. Heissner
Testimony, August 16, 2000 Tr. at 21 - 22.
The e-mails of these users for the period from November 1998 to June
1999 must be reconstructed before they can be archived or are available to be
searched. Heissner Testimony, Id.
456.
On June 14,
1999, Plaintiffs were forced to file a Motion to Compel Production of Documents
Regarding Second Request to EOP. See
H. Ex. 58. At Defendant EOP’s
invitation, Plaintiffs at that time submitted a list of e-mail accounts and
search terms to be used for a search of Clinton-Gore White House e-mail. See H. Ex. 58 at 26-27, Request 28.
457.
In response to
this Motion to Compel, the Clinton-Gore White House again submitted a false
declaration concerning e-mail in July 9, 1999.
That declaration, again by Daniel Barry, falsely stated that:
Since July 14, 1994, e-mail within the EOP
system administered by the Office of Administration has been archived by the
EOP Automated Records Management System (ARMS). With this current system, this e-mail is susceptible to being
word-searched (e.g., “FBI” or “FBI files”) or a multiple character string
(“and” and “or” searches) found on any one line of text.
See H. Ex. 42 (Declaration of Daniel A. Barry, July 9, 1999) at ¶ 4.
458.
Barry was
working closely with attorneys in the Clinton-Gore White House Counsel’s office
and the Department of Justice in drafting and revising this Declaration. See H. Ex. 66 (Fayngold), 68, 72
(Baron), 39-1051814 -20, 39-1051832 -41 (Peterson) and 72, 39 - 1051823 -27,
39-1051832 -41, 39-1051849 -54, 39-1051855 -59 (Giles); Baron Testimony, August
31, 2000 Tr. at 89 - 108.
459.
Peterson had
allegedly performed the “comparison” of the Haas Mail2 documents in June
1998. See Peterson Testimony,
August 28, 2000 Tr. at 193.
460.
Peterson also
had been in court when the Insight article was brought forward and then
allegedly assisted in the DOJ investigation of the issues it raised. See Peterson Testimony, August 28,
2000 Tr. at 177 - 178.
461.
Peterson recalls
working with Barry’s “superior or people within the Office of Administration,”
including Dottie Chleo, on the drafting of this Declaration. See Peterson Testimony, August 28,
2000 Tr. at 220 - 221.
462.
While Peterson
acknowledges that there was joint responsibility between her and the attorneys
in the Clinton-Gore Justice Department for the accuracy of the Declaration, she
made no “effort ... to determine paragraph by paragraph that what Barry was
saying was accurate in Exhibit 42 [Barry’s July 9, 1999 Declaration].” See Peterson Testimony, August 28,
2000 Tr. at 222.
463.
Prior to
reviewing the July 1999 Declaration, Baron had met with Lindsay about the fact
that e-mail was coming “into the [White House] complex, and was not being
captured” due to a “computer
glitch.” See Baron Testimony,
August 31, 2000 Tr. at 45 - 47, 50 - 51.
464.
Baron had also
spoken to Clinton-Gore OA officials Mike Lyle, Esq. and Kate Anderson, Esq. in
the Office of Administration about the Letter D problem in April 1999, and
understood that this problem could be causing records to be not properly
archived or illegally destroyed or modified.
See Baron Testimony, August 31, 2000 Tr. at 60 - 62 (“I have a
clear recollection in that conversation of telling them that independent of the
Armstrong case, you have the Federal Records Act responsibilities. Because they said the letter D, it may be
accounts that are both Federal Records Act accounts and Presidential Records
Act accounts, depending on whether the e-mail was in one place at the White House
or another. And I did advise them that
under the Federal Records Act there are provisions, 44 U.S.C. 2905, 3106, that
talk to the issue of destruction or modification of records, and that they
needed to be aware of those.”).
465.
Barry signed
the July 9, 1999 Declaration under oath and understood that if he signed the
declaration and it was false that that would be a crime. See Barry Testimony, August 17, 2000
Tr. at 132.
466.
The Clinton-Gore White House and Justice
Department lawyers have also allowed Barry’s false testimony of June 11, 1998
and Declaration of March 4, 1998 to remain on the record before the Court. See
H. Ex. 59 (Opposition by Defendant EOP to Plaintiffs’ Motion to Compel
Documents Regarding Second Request to EOP, filed July 9, 1999) at 28-31 (Barry
July 9, 1999 Declaration is attached as Exhibit D), and H. Ex. 60 (Plaintiffs’
Reply to Opposition to Plaintiffs’ Motion to Compel Documents Regarding Second
Request to the EOP, filed July 29, 1999) at 18-19.
467.
Despite their
knowledge that e-mail since July, 1994 and other EOP e-mail were not and would
not be searched in response to document requests from Plaintiffs or any other
legal entity, neither Barry, the Clinton-Gore White House, Clinton-Gore White
House officials, and Justice Department lawyers alerted this Court, Congress,
or independent counsel to the e-mail problem and the resulting effect on
document productions. See
Lindsay Testimony, August 23, 2000 Tr. at 34, 44-45, 118.
468.
Barry, the
Clinton-Gore White House, Clinton-Gore White House officials, and Department of
Justice lawyers failed to inform Congress or any other agency of the
government, the Office of Independent Counsel, this Court, or counsel for the
Plaintiffs of the existence of the Mail2 problem or any other problem with the
archiving of e-mail. See August
23, 2000 Tr. at 34, 44-45, 118.
469.
Barry, the
Clinton-Gore White House, Clinton-Gore White House officials, and Department of
Justice lawyers failed to inform Congress or any other agency of the government
or this Court of the need for funds or resources to analyze the Mail2 problem
and correct it. See August 23,
2000 Tr. at 34, 44-45, 118.
T. Clinton-Gore
White House Lied To Court About Hillary Clinton’s E-mail.
470.
As stated
above, on October 27, 1998, Plaintiffs filed their Second Set of Requests for
Production of Documents to the Executive Office of the President.
471.
Request 21 of
Plaintiffs’ Second Set of Requests for Production of Documents to the Executive
Office of the President sought the following:
All laptop and desktop computers used by or
assigned to Hillary Rodham Clinton, which contain or contained information or
recordations relating to Travelgate, Filegate, the White House Office Database
(“WHODB”) computer system, or the obtaining or use of FBI files or government
records, or the information contained therein.
472.
Request 22 of
Plaintiffs Second Set of Requests for Production of Documents to the Executive
Office of the President sought the following:
All floppy disks, zip drives, magnetic tapes,
and similar removable data storage devices used by Hillary Rodham Clinton,
which contain or contained information or recordations relating to Travelgate,
Filegate, the WHODB computer system, or the obtaining or use of FBI files or
government records, or the information contained therein.
473.
On January 14,
1999, the Clinton-Gore EOP submitted its responses to Plaintiffs’ Second Set of
Requests for Production of Documents to Plaintiffs. In response to Request 21, the Clinton-Gore EOP represented, in
part, that “[n]o EOP laptop or desktop computers are used by or assigned
to Hillary Rodham Clinton.” See
EOP’s Response to Plaintiffs’ Second Document Request at 19.
474.
In response to
Request 22 of Plaintiffs’ Second Set of Requests for Production of Documents,
the Clinton-Gore EOP represented, in part, that:
No EOP laptop or desktop computers are used
by or assigned to Hillary Rodham Clinton, and accordingly no floppy disks, zip
drives, magnetic tapes and similar removable data storage devices responsive to
this request exist.
See EOP’s Response to Plaintiffs’ Second Document Request at 19.
475.
On January
April 22, 1999, the Clinton-Gore EOP submitted supplemental responses to
Plaintiffs’ Second Set of Requests for Production of Documents to
Plaintiffs. In its supplemental
responses to Requests 21 & 22 of Plaintiffs’ Second Set of Requests for
Production of Documents, the Clinton-Gore EOP represented that:
According to EOP’s records, no laptop or desktop computers have ever
been assigned to Mrs. Clinton. EOP has inquired and is unaware of Mrs. Clinton
using White House computers either for any purpose relating to the subject
matters of these requests, or, for that matter, to carry out any of her
official duties as First Lady. Accordingly, EOP has no documents or things
responsive to Request Nos. 21-22.
See EOP’s Supp. Response at 11 (emphasis added).
476.
Then, on July
9, 1999, the story changed again and the Clinton-Gore White House acknowledged
for the first time in its Opposition, the existence of one e-mail account
established under the First Lady’s name:
EOP recently learned that an e-mail account
under the First Lady’s name was established, for the first time, on June 4,
1999 for the sole purpose of sending a single e-mail and receiving responses.
The account was used to send an e-mail on June 7, 1999 to EOP employees
concerning “DC Reads Voluntary Opportunity” which provided information on
volunteering for a reading program with Washington, DC students. This account
was deactivated on June 9, 1999. Although the e-mail was sent under the First
Lady’s name, she did not participate in drafting the message, in putting the
message into the computer or sending it.
See EOP Opposition to Plaintiff’s Second Motion to Compel at 11, fn. 16.
477.
On August 14,
2000, Mr. Haas revealed that, contrary
to the representations made by the Clinton-Gore White House to this Court and
to Plaintiffs, another e-mail account in Hillary Clinton’s name does in fact
exist and that an employee of Mrs. Clinton, Alice Pushkar, has access to
it. See Haas Testimony, August
14, 2000, Tr. at 93-94, 98-99.
478.
Mr. Haas also
testified that, contrary to the representations made by Defendant Clinton-Gore
EOP to this Court and to Plaintiffs, alias or pseudonym e-mail accounts in the
White House exist for Defendant Hillary Rodham Clinton, President Clinton as
well as Vice-President Gore and Tipper Gore:
[By Mr. Klayman:] Are you aware that some e-mail accounts were kept under
aliases in the White House? You did
know that, didn't you?
[By Mr. Haas:] No.
[By Mr. Klayman:] You're aware -- if I don't use the word alias, that some e-mail
accounts were kept under nicknames?
[By Mr. Haas:] Now, wait a
minute. If you're talking about the
principals, for security reasons I won't go into any part of this until we get
some waiver. But there are ways in
which we use alternative naming conventions to get mail to the four principals
that are not public knowledge and won't be made public knowledge by me.
[By Mr. Klayman:] Who are --
[By Mr. Haas:] We're talking about Bill, Hillary, and Al and Mary Gore.
[By Mr. Klayman:] Mary Tipper Gore?
[By Mr. Haas:] Yes.
[By Mr. Klayman:] So they have accounts which are names that you can't identify
who they are?
See Haas Testimony, August 14, 2000 Tr. at 109.
479.
Mr. Haas
further testified that Mrs. Clinton’s alias account was created shortly after
President Clinton entered office. Id.
480.
This false
information about Defendant Hillary Clinton’s e-mail is further evidence of the
nefarious intent of the Clinton-Gore White House’s representations on the Mail2
and related problems.
U. Whistleblowers
Expose Clinton-Gore White House’s Obstruction of Justice, False Testimony.
481.
On February 19,
2000, Plaintiffs filed with the Court
their “Emergency Motion to Supplement Plaintiffs’ Motion to Compel and Request
for Evidentiary Hearing” (hereinafter “Emergency Motion”).
482.
In support of
that Motion, the Plaintiffs submitted a sworn Declaration executed by Sheryl
Hall (“Hall”), a career civil servant with the rank of GS-15, who, from October
1992 until September of 1999, had been employed with the EOP as a computer
specialist. See H. Ex. 1 at 1.
483.
In her February
19, 2000 Declaration, Hall verified
that in the course of her duties with the EOP, she had learned of the
facts and circumstances surrounding what is now known as the Mail2 problem
(Mail2). See H. Ex. 3 at 2.
484.
Her Declaration
set forth a broad description of the Mail2 problem which has now been
substantiated by the evidence adduced in this hearing. See H. Ex. 3 at 2, 3.
485.
On February 19,
2000, the same day Plaintiffs’ filed their Emergency Motion (and four days
after a Washington Times article detailing Hall’s core charges
appeared), a list of sixty-two persons who had worked for the Clinton
Administration and who are currently deceased was left on Haas’s chair on
February 19. See H. Ex. 77, Haas
Testimony, August 14, 2000 Tr. at 48-49.
486.
This list was
an implicit threat against Haas’s life and intended to influence his testimony
in this case in favor of the Clinton-Gore White House.
487.
On February 25,
2000, the Plaintiffs filed with the Court their “Second Supplement to Emergency
Motion to Compel and Request for Evidentiary Hearing.”
488.
Filed with this
pleading was the sworn declaration of Betty Lambuth (“Lambuth”), who was an
employee for a subcontractor to Northrop Grumman working at the Clinton-Gore
White House from October 1997 through July 1998. See H. Ex. 10 at 1, 4; Lambuth Testimony, July 13, 2000
Tr. at 84.
489.
Lambuth’s
Declaration testimony, which corroborated Hall’s, included a detailed and accurate first hand description of the
facts and circumstances surrounding Mail2.
See H. Ex. 10.
490.
Lambuth
attested that she and her staff were ordered not to take any written notes or
divulge anything relating to Mail2 to any individual, including their Northrop
Grumman superiors, by Office of Administration General Counsel Mark Lindsay
(“Lindsay”) and Laura Crabtree (“Crabtree”), a managerial official for the
Information Systems and Technology Division of the Office of Administration
(“IS&T Division”). See H.
Ex. 10 at 2.
491.
Lambuth’s
Declaration further detailed the threats of loss of employment and incarceration
made to her and those on her staff who knew of Mail2 by Lindsay and Crabtree
should they disobey the order of silence imposed upon them. See H. Ex. 10 at 2-3.
492.
From January of
1998 to October of 1998, Kathy Gallant (“Gallant”) was the Associate Director
for the IS&T Division. See
Gallant Testimony, August 1, 2000 Tr. at 109-110.
493.
Her job duties
were managerial , and included responsibility for computer operations,
mainframes, and for overseeing the performance of Northrop Grumman’s contract with the EOP. See Gallant Testimony, August 1, 2000
Tr. at 106.
494.
In February,
2000, Gallant was contacted by phone at her place of work by James Gilligan, a
Department of Justice attorney serving as a counsel in this matter. See Gallant Testimony, August 1, 2000
Tr. at 208.
495.
Gilligan and
Gallant discussed the Mail2 problem and the Mail2 reconstruction project
for approximately 1-1/2 hours. Id. at 208.
496.
During their
conversation, Gallant told Gilligan that:
. . .
I was aware - - of the problem; that I was aware that people had been
threatened; that I took action to try to get the problem resolved; that I had a
- - we had a strategy for how we could use the money we were assured by Mark
Lindsay that getting that money to solve the problem wouldn’t be a problem, and
that, you know, we had folks working on the problem as best we could. People told me they had been threatened by
Laura [Crabtree]. I believe I told him
that I thought she was capable of threatening those folks. I had seen that behavior before from her.
See Gallant Testimony, August 1, 2000 Tr. at 208-209.
497.
On May 10,
2000, Gallant signed a declaration confirming the substance of her conversation
with Gilligan.
498.
This
Declaration was filed with this Court on May 11, 2000 in conjunction with
Plaintiffs’ Motion to Amend Supplements Dated May 2 and May 5, 2000 Regarding
ARMS E-Mail and Non-Records Managed E-Mail and For Leave to File Fifth
Supplement to Emergency Motion to Supplement Plaintiffs’ Motion to Compel and
Request for Evidentiary Hearing.
499.
On March 6,
2000, the Clinton-Gore White House filed a pleading in this case entitled
“Executive Office of the President’s Memorandum in Opposition to Plaintiffs’
Requests to Restrict Disclosure of the First and Second Supplements to
Plaintiffs’ Motion for Evidentiary Hearing, and in Support of Cross-Motion for
Expedited Consideration.”
500.
In that pleading, Clinton-Gore Justice
Department counsel made the following statements at pages 1, 6, 8, and 14-16
respectively:
Plaintiffs have filed a series of
interconnected motions based on offensive allegations that Executive Office of
the President (“EOP”) has suppressed evidence, and threatened witnesses,
concerning the existence of electronic mail records in the White House.
*
* *
As a threshold matter defendant observes that
plaintiffs’ latest rhetorical outburst concerning e-mail can only be described
as yet another “distraction from the issues in this lawsuit.”
*
* *
But even more implausible is plaintiffs’
suggestion that EOP would (or could) retaliate against individuals who testify.
*
* *
The history of this litigation teaches . . .
that plaintiffs’ accusations of witness intimidation and retaliation cannot be
taken at face value, and the Court should be loath to award relief of any kind
predicated on the presumed accuracy of these charges.
*
* *
The fact is that EOP has no inclination or
ability to retaliate against witnesses or have them fired.
501.
Also on March
6, 2000, the Clinton-Gore White House filed its“Executive Office of the
President’s Motion for an Extension of Time to Respond to Plaintiffs’ Motions
to Supplement Plaintiffs’ Motion to Compel Regarding the Second Document
Production.”
502.
In that
pleading, Clinton-Gore Justice Department counsel made the following statement
at page 5:
. . . [P]laintiffs’ allegations with respect
to e-mail searches are simply another distraction from the central issues in
this case and another example of plaintiffs chasing the morning headlines . . .
503.
On March 9,
2000, the Clinton-Gore White House, through Justice Department counsel, filed
its “Executive Office of the President’s Opposition to Plaintiffs’ Motion for
‘Emergency’ Ex Parte Conference and to Motion for Leave to File
Emergency Motion Under Seal.”
504.
Therefore, as
early as February 2000, the Clinton-Gore Justice Department had independent
confirmation that these threats had, in fact, been made, yet it vehemently
denied this fact in subsequent submissions to the Court. See Executive Office of the President’s
Memorandum in Opposition to Plaintiffs’ Requests to Restrict Disclosure of the
First and Second Supplements to Plaintiffs’ Motion for Evidentiary Hearing, and
in Support of Cross-Motion for Expedited Consideration, filed on or about March
6, 2000, at 1, 6, 8, 14-16. See also
Executive Office of the President’s Motion for an Extension of Time to Respond
to Plaintiffs’ Motions to Supplement Plaintiffs’ Motion to Compel Regarding the
Second Document Production, filed on March 6, 2000, at 5. See also Executive Office of the
President’s Opposition to Plaintiffs’ Motion for “Emergency” Ex Parte
Conference and to Motion for Leave to File Emergency Motion under Seal, March
9, 2000, at 8 n.5.
505.
These false
pleadings were signed by the following attorneys: John Anderson, Ann Weisman,
James Gilligan, Elizabeth Shapiro, Allison Giles, Julia Fayngold-Covey.
V. Obstruction
of Justice Continues
506.
This
obstruction of justice continued even in the midst of court hearings and
litigation on the subject in 2000.
507.
Following
publication of a Washington Times article exposing key aspects of the
Mail2 scandal on February 15, 2000, Joe Lockhart, President Clinton’s then
Press Secretary, talked to the White House Counsel’s Office about Mail2 and
then he, John Podesta, President Clinton’s Chief of Staff, and Beth Nolan,
White House Counsel briefed President Clinton prior to a press appearance. See H. Ex. 77 at 1, Podesta
Testimony, October 10, 2000 Tr. at 25 - 31; E-mail Hearing Testimony of Beth
Nolan (hereinafter “Beth Nolan”), November 2, 2000 Tr. at 94-95.
508.
During this
briefing, Podesta and Lockhart discussed Mail2 with Clinton so he would tell
the press that the White House Counsel’s Office had tried to comply with
subpoena requests and was investigating the matter. They did not tell Clinton to tell the press that the White House
Counsel’s Office had fully complied with all subpoena requests. See Podesta Testimony, October 10,
2000 Tr. at 28-34.
509.
Nevertheless,
when Clinton was asked about the matter minutes after the briefing, he stated
“I believe that we have complied with every single request” and that “I think
we are in full compliance. I believe we
are.” See Podesta Testimony,
October 10, 2000 Tr. at 28-34; H. Ex 99.
510.
This false
public statement has never been corrected by the President. See Podesta Testimony, October 10,
2000 Tr. at 90-92.
511.
In fact, months
later, Clinton spokesman Jake Siewert expanded on that falsehood. In a Washington
Post article titled “E-Mail Searches Skip Private Clinton, Gore Accounts”
and published on August 18, 2000, White House Spokesman Jake Siewert stated, in
response to questions about Mail2, “[w]e have searched the entire e-mail system
to be as responsive as possible.” Mark
Lindsay also tried to promote this lie to this Court. See H. Ex. 77 at 5; Lindsay Testimony, August 23, 2000 Tr.
at 81-82, 85.
512.
Despite Mark
Lindsay’s attempt to falsely characterize Siewert’s statement as truthful, this
statement is false because there are still thousands of back up tapes that had
yet not been searched. See
Lindsay Testimony, August 23, 2000 Tr. at 85 - 89.
513.
The
Clinton-Gore White House continued to lie to the Court about e-mail
problems. Based on representations made
to this Court in the Declaration of Leanna Terrell, which stated that
responsive e-mail was unlikely to be anywhere but the White House Office
“bucket,” Plaintiffs narrowed the scope of their requested ARMS search. See Executive Office of the
President’s Response to Plaintiffs’ Supplement to Plaintiffs Motion to Compel
Production of Documents Regarding Second Request to EOP (re: ARMS e-mail), May
12, 2000, Ex. A (Terrel Declaration) at ¶ 5; Plaintiffs Reply to the EOP’s
Response to Plaintiffs Supplement at 5.
514.
Also relying in
part on this Declaration, the Court further narrowed the scope of the ARMS
search to the White House Office “bucket.” See June 5, 2000 Memorandum
Opinion at 23-25.
515.
Nowhere in
Terrell’s Declaration (nor anywhere else in the record prior to the Court
hearings on these issues), were the Court or Plaintiffs notified of the ARMS
“bucket” problem. See, e.g., H. Ex. 64 at E-2152-2155, E-2162, E-2200,
E-2402-03, and E-2410-2411; see also
H. Ex. 9-21; August 1, 2000 Tr. at 154-57.
516.
Consequently, as large numbers of responsive
e-mail could be in other “buckets,” the search of the ARMS system ordered by
the Court on June 5, 2000 was inherently flawed.
517.
The only
requests for funding from Congress by the EOP for e-mail reconstruction came
after the public statements by Ms. Hall and Ms. Lambuth disclosing Project X
and the Mail2 problem.
518.
The first
request for funding for e-mail reconstruction was a March 20, 2000 letter from
Lindsay to the Treasury, Postal Service and General Government Appropriations
Subcommittee of the House Committee on Appropriations (hereinafter
“Appropriations Subcommittee”) requesting the release of Armstrong funds
and containing his “legal conclusion
that it would be inappropriate to do so.”
See Lindsay Testimony, August 23, 2000 Tr. at 162.
519.
Mr. Lyle, the
current Director of the OA, testified before the Appropriations Subcommittee on
March 23, 2000.
520.
In his
testimony, Mr. Lyle did not request any additional funds for Mail2
reconstruction and admitted that funds had not been requested prior to Mr.
Lindsay’s March 20, 2000 letter. See,
Lyle Congressional Appropriations Testimony at 43 .
521.
Mr. Lyle also
admitted that the Armstrong funds were available and were intended for
ARMS related projects such as Mail2, but that the funds had not been used to
correct the Mail2 problem. See
Lyle Congressional Appropriations Testimony at 41 - 43.
522.
Stuart Hanley,
an employee of OnTrack was contacted by the Clinton-Gore White House in
February, 2000 regarding a data
recovery project involving the duplication of numerous back-up tapes from White
House servers. See E-mail Hearing Testimony of Stuart Hanley
(hereinafter “Hanley Testimony”), July 14, 2000 Tr. at 102; E-mail Hearing
Testimony of Jennifer Zeller (hereinafter “Zeller Testimony”), July 27, 2000 Tr.
at 46.
523.
OnTrack is
widely regarded as the leading company in the world in computer data recovery. See
Hanley Testimony, July 14, 2000 Tr. at 102
524.
Representatives
of OnTrack eventually met with several employees of Defendant EOP on February 29,
2000. Id. at 114. Lois Loser and Terry Misich attended this
meeting. Id. at 106.
525.
OnTrack
informed the Clinton-Gore White House that they had sufficient equipment and
employees to complete the project contemplated, which at that time consisted of
duplicating approximately 800 back-up tapes. Id. at 106, 112.
526.
Mr. Hanley
testified that he informed the Clinton-Gore White House at the February 29,
2000 meeting that OnTrack would have had enough employees and equipment to
handle a duplication job of between 3000-6000 tapes. Id. at 115.
527.
In addition,
OnTrack had software already prepared that could be used to restore data from
the Clinton-Gore White House’s copied back-up tapes. Id. at 112.
528.
In addition,
OnTrack is authorized to handle national security information. Id. at 104.
529.
Mr. Hanley
testified that the entire job contemplated by the Clinton-Gore White House
would have cost between $5-$7 million, well within the $8-$10 million budgeted
by the Clinton-Gore White House to recover the missing Mail2 e-mail. Id.
at 118-123.
530.
Approximately
two to three weeks after OnTrack’s meeting with the Clinton-Gore White House,
OnTrack learned that the job had been assigned an EOP subcontractor, SRA,
through EOP’s primary contractor ECS. Id. Evidentiary Hearing at 107.
531.
OnTrack is
careful to keep a close watch on potential competitors. Mr. Hanley testified
that he had never heard of ECS or SRA. Id. at 103, 109.
532.
Jennifer
Zeller, OnTrack’s Director of Product Line Management, testified that when she
learned that the Clinton-Gore White House had bypassed OnTrack, she called ECS
to offer to assist SRA with the Mail2 recovery project. Tr. of 7/20/00
Evidentiary Hearing at 46-50. Ms Zeller testified that she was told by Mr. Eric
Duong, the president of ECS, that SRA did not require any assistance from
Ontrack. Id.
533.
At least two
employees of SRA, including Dorothy Cleal and John Dankowski, are former
employees of the Clinton-Gore White House. See Paul Sperry, “‘The Fix Is
In’ On E-Mail Fix?”, www.WorldNetDaily.com, April 5, 2000.
534.
Michael R.
Sullivan, Deputy Director for General Services Division in the EOP’s Office of
Administration, testified that ECS was hired because it is a an “8-A”
contractor which had been certified by the Small Business Administration. Tr. of 7/17/00 Evidentiary Hearing at 67.
535.
Mr. Sullivan
testified that hiring an 8-A contractor would eliminate the need for
competitive bidding by contractors on the Mail2 recovery project, and thus
expedite the recovery of the subject e-mail. Tr. of 7/14/00 Evidentiary Hearing
at 67-73.
536.
All this
testimony on the alleged 8-A and other contracting requirements was a
fabrication. On October 10, 2000, Chief
of Staff John Podesta admitted that he had instigated the hiring of SRA. The truth was John Podesta was directly
involved in formulating the technical response to Mail2 in February 2000 and
initiated the hiring of SRA as the contractor to perform the reconstruction and
searches of the Mail2 back up tapes.
SRA was hired because they were referred by an associate of Podesta’s in
the White House, John Koskinen, and employed a former government employee who
Mr. Koskinen knew. Podesta contacted
this employee before initiating the hiring of SRA as the subcontractor to ECS,
the minority prime contractor. See
Podesta Testimony, October 10, 2000 Tr. at 15-16, 64, 80 - 84.
537.
ECS was not
hired for the reasons stated to this Court by the Clinton-Gore White
House. ECS was hired as front company
for SRA, which had already been hired for its political connections to John
Podesta and the Clinton-Gore White House.
This shows Podesta’s, the President’s Chief of Staff, continuing
involvement in the e-mail scandal.
538.
As the Court
hearings in this matter continued, evidence continued to be destroyed.
539.
In March 2000,
Haas still had a file containing Mail2 related e-mail. See Haas Testimony, August 14, 2000
Tr. at 142.
540.
Haas copied
this file to a Zip disk which he gave to Al Leister in Northrop Grumman’s front
office, who apparently then transferred it to Chuck Easley. See Haas Testimony, August 14, 2000
Tr. at 142 - 144.
541.
The file was
later mysteriously erased from the Zip disk.
Specifically, Easley was working with the file late one day and
then when he came in the next day, the Zip disk was empty; the file had been
erased. Easley could not explain this
since his office was locked overnight. See
Haas Testimony, August 14, 2000 Tr. at 145 - 147.
542.
This
existence of this Zip disk only became known to the Court after Plaintiffs
counsel, using information gained from Sheryl Hall, raised it. Ms. Hall understood that the Zip disk was
intended to be hidden from the Court, unless it was specifically asked for in
discovery. See Hall Testimony,
July 31, 2000 Tr. at 135-136.
543.
The
Clinton-Gore White House has continued to intimidate and retaliate against
witnesses in this case. On June
19, 2000 Howard “Chip” Sparks signed a Declaration setting forth his knowledge
of Project X, the threats, and other issues.
This declaration was filed with the Court. See H. Ex. 37; Sparks Testimony, August 16, 2000 Tr. at
69.
544.
A current
Clinton-Gore White House employee, Mr. Sparks, came forward to this Court at
great risk to his career. CITE
545.
After
signing and filing the Declaration, Sparks’ office in the Clinton-Gore White
House was broken into and, he was later moved from a corner office to a
smaller, non-private cubicle. See
Sparks Testimony, August 16, 2000 Tr. at 69 - 70.
546.
This
intimatory and retaliatory activity was in response to Sparks testifying before
this Court. CITE.
547.
The
Clinton-Gore White House also planned to destroy additional computer evidence
in the midst of the various proceedings on these matters. In an effort to prevent further document
destruction, Plaintiffs presented to this Court Sheryl Hall’s Fourth
Declaration detailing Clinton-Gore White House plans to destroy the backed-up
tapes of hard drives of Clinton-Gore White House staffers which are made as
staffers leave the White House or transfer to another office within it. See Fourth Declaration of Sheryl
Hall, March 7, 2000 at ¶4 (H. Ex. 4).
548.
These archived
tapes have been evidence in this case for a long period. See Memorandum Opinion, July 10, 2000
at 2-4.
549.
In response, on
April 3, 2000, the Clinton-Gore White House filed a Declaration signed by
Michael Lyle, the current Director of the Clinton-Gore Office of Administration
(OA). The carefully worded Lyle affidavit said "no proposal is actively
under consideration" to destroy the hard‑drive tapes or to stop
making them. See Executive
Office of the President’s Response to Plaintiffs’ Request for an Evidentiary
Hearing Regarding EOP Computer Hard Drives at Ex. A. (emphasis added).
550.
The refusal of
Lyle to deny Ms. Hall’s allegation leads to the inference that Clinton-Gore
White House planned to destroy additional computer evidence in this case and
were only stopped when the plan was exposed by Ms. Hall.
551.
The
Clinton-Gore White House ignored an April 27, 2000 Court directive to
produce e-mails within 170 days and lied to it about meeting this
deadline. See Transcript of
Motions Hearing, April 27, 2000 at 33.
552.
The
Clinton-Gore White House concocted technical and cost reasons for a delay in
the production of e-mail, as predicted by Sheryl Hall. See Second
Declaration of Sheryl Hall at ¶7 (H. Ex. 2); Nolan Testimony, November 2, 2000
Tr. at 42-45.
553.
Nearly one
year after the e-mail scandal was uncovered by Plaintiffs, the Clinton-Gore
White House has only completed a search of 25 (twenty-five) tapes of back-up
e-mail. The bulk of the e-mail at
issue has still not been searched.
W. The
President and Mrs. Clinton Must Have Known of the E-Mail Coverup.
554.
Hillary Clinton
oversaw the development of the a computer database, known as the White House
Office Databaase (hereinafter “WHODB”) with the assistance of Clinton-Gore
White House officials Marsha Scott, Eric Vaden, and Laura Tayman. See H. Ex. 1 at ¶ 5.
555.
Hillary Clinton
had operational control of the Clinton-Gore White House, including but not
limited to, the hiring and firing of personnel. Her agents in the direction of the White House included Marsha
Scott and her chief of staff Margaret “Maggie” Williams. See H. Ex. 1 at ¶ 6. According to Linda Tripp, Mrs. Clinton
“ruled the school.” See Deposition Transcript of Linda Tripp at 359.
556.
Hillary Clinton
knew about Project X, and the Office of the First Lady regularly reviewed the
results of e-mail searches in response to subpoenas. See H. Ex. 3 at ¶ 15.
557.
OA officials
Virginia Apuzzo, Ada Posey, Katherine “Kate” Anderson, Laura Crabtree, in
addition to Clinton-Gore White House official Marsha Scott had access to the
White House residence and were on “familiar” terms with Hillary Clinton. See Hall Testimony, July 31, 2000 Tr.
at 43-44.
558.
Posey reported
to Assistant to the President for Management and Administration Jody Torkelson
until she left the Clinton-Gore White House, and then, in August, 1997, Posey
reported to Podesta and Sylvia Matthews, the Deputy Chiefs of Staff who
reported to Chief of Staff Bowles.
Bowles reported to the President.
Posey Testimony, August 16, 2000 Tr. at 140-143.
559.
Around the time
Mail2 was uncovered in 1998, Podesta regularly reported to the Chief of
Staff. Podesta would advise the WHCO if
there were problems with document production.
Podesta Testimony, October 10, 2000 Tr at 16-17.
560.
Podesta and
Lockhart briefed President Clinton on the Mail2 problem. See Podesta Testimony, October 10,
2000 Tr. at 31.
561.
President
Clinton knew about the Mail2 problem. See
Podesta Testimony, October 10, 2000 Tr. at 31-32.
562.
President
Clinton, head of the Defendant Clinton-Gore White House, lied to the American
people about the Mail2 scandal. When
President Clinton was asked about the e-mail scandal by the media, he falsely
stated “I believe that we have complied with every single request” and that “I
think we are in full compliance. I
believe we are.” See Podesta Testimony, October 10, 2000 Tr. at 28-34;
H. Ex 99.
563.
The
evidence adduced to date raises an evidentiary inference that President Bill
Clinton knew of and approved early on of the obstruction of justice, threats,
and false testimony on Mail2.
564.
The
evidence adduced to date raises an
evidentiary inference that Defendant Hillary Rodham Clinton knew of and
approved early on the obstruction of justice,
threats, and false testimony on Mail2.
Respectfully
submitted,
JUDICIAL WATCH, INC.
________________________
Larry Klayman, Esq.
DC Bar No. 334581
_________________________
Paul J. Orfanedes, Esq.
DC Bar No. 429716
501 School Street, S.W.
Suite 725
Washington, D.C. 20024
(202) 646-5160
Attorneys for Plaintiffs
CERTIFICATE
OF SERVICE
I hereby certify that on January 9, 2001 a true and correct copy of the foregoing was
served by first-class mail, postage prepaid, on the following:
Attorneys for Defendants Federal Bureau of
Investigation and Executive Office of the President:
James J. Gilligan, Esq.
Elizabeth Shapiro, Esq.
Allison Giles, Esq.
U.S. DEPARTMENT OF JUSTICE
P.O. Box 883
Washington, DC 20044
Attorneys for Defendant Hillary Rodham
Clinton:
David E. Kendall, Esq.
Paul Gaffney, Esq.
Marcie R. Ziegler, Esq.
WILLIAMS & CONNOLLY
725 12th Street, N.W.
Washington, DC 20005
__________________________
Paul J. Orfanedes