CARA ALEXANDER, et al.,                         )


Plaintiffs,                         )          


v.                                                                     )            Civil Action Nos.

)            96-2123/97-1288 (RCL)

FEDERAL BUREAU OF                          )          

INVESTIGATION, et al.,                               )


Defendants.                                 )



JOHN MICHAEL GRIMLEY, et al.,       )


Plaintiffs,                         )


v.                                                                     )


FEDERAL BUREAU OF                         )

INVESTIGATION, et al.,                               )


Defendants.                                 )







Plaintiffs, by counsel, hereby respectfully submit this Initial Legal Memorandum in Support of Findings of Fact.


I.            Introduction.

Plaintiffs had filed substantial evidence with this Court revealing the existence of an email problem, additional evidence that the defendants had provided false statements to this court about the missing emails, and evidence of an effort to obstruct justice through threats and intimidation of witnesses to the email problem[1]


Over the past eight (8) years, our nation has endured a cesspool of corruption, as witnessed in scandal after scandal at the highest level of government; namely, the Clinton-Gore White House.  Numerous courts, congressional committees, and independent counsels have tried to investigate these scandals, often to no avail.  The reason is simple.  Each body has been stonewalled and obstructed by the Clinton-Gore White House and its so-called Justice Department, from which little if any documentary evidence has been  forthcoming. 

The Clinton-Gore White House recognizes that e-mail is the most candid and potentially damaging form of discoverable communication that exists.  Its own counsel has admitted to this.  However, and as Plaintiffs proved during the recently concluded evidentiary hearing, since January 1998, if not earlier, the Clinton-Gore White House and its counsel knowingly and systematically attempted to conceal the existence of important, fundamental defects in its ability to search for and produce e-mail in response to requests from litigants such as Plaintiffs, congressional committees and independent counsels.  Moreover, and as Plaintiffs also proved, the Clinton-Gore White House was assisted in this illegal endeavor by the Clinton-Gore Justice Department of Justice and Northrop-Grumman Corporation, the government contractor responsible for overseeing archiving, searching and retrieving e-mail. 

In order to keep these defects secret -- and thereby intentionally avoid producing evidence of its own illegal misconduct in multiple scandals, including Filegate, Chinagate, and Interngate -- The White House, aided and abetted by its co-conspirators, went so far as to knowingly submit false, sworn testimony to this Court on repeated occasions, threaten individual Northrop Grumman employees who also happened upon these defects, purposefully delayed any resolution of the e-mail problem, and needlessly delayed and multiplied these proceedings, including this evidentiary hearing.  

As set forth in excruciating detail in the contemporaneously filed findings of fact pertinent to this new e-mail scandal, over the last eight (8) years the Clinton-Gore White House had to come up with a mechanism for handling document requests. With respect to e-mail in particular, it even wrote into its contract with Northrop Grumman Corporation that the government contractor would assist it with e-mail archiving, search and retrieval.

Because of the sensitivity and high risk of the scandals involved -- which ultimately could lead to the impeachment and removal of the President, not to mention criminal indictments and convictions, as well as large civil damages awards --  the Clinton-Gore White House needed trusted loyalists to work on these document productions.  Consequently, it developed a system by which document requests would be handled by the White House Counsel’s Office, which is the President and Mrs. Clinton’s official attorney.  Indeed, Mrs. Clinton has functioned as the de facto White House Counsel, thus  having occupied an adjoining office ordinarily assigned to the Vice President.

Charles Ruff, Cheryl Mills and Lanny Breuer, and their trusted Associate Counsel Michelle Peterson and Sally Paxton, were charged with the task at the operational level.  Not coincidentally, Peterson had a close relationship with Ruff, having worked with him at the Covington Burling law firm.  In addition, the White House also needed a trusted loyalist at the technical level who, if necessary, would be prepared to lie.  That person was Daniel Barry.

Ironically, in January 1998, when it was learned that President Clinton had had an affair with an intern named Monica Lewinsky, but lied about it in his deposition in Ms. Paula Jones’ sexual harassment lawsuit, Barry was tasked with the job of conducting e-mail searches regarding Monica Lewinsky.  In fact, Barry was tasked with the job of searching e-mail on Lewinsky even before the Office of the Independent Counsel had made any document requests, obviously because it was understood that President Clinton had lied at his deposition, and the Clinton-Gore White House obviously wanted to know what “lurked” below the surface in terms of incriminating evidence that would have to be produced to various investigators and the courts.

In the course of undertaking this search, Barry discovered what would later become known as the  “Mail2 problem.”  Specifically, Barry discovered that incoming e-mail was not being archived in a retrievable format for a myriad of White House employees, including key employees in the all important White House Office.  Barry duly reported the discovery to his supervisor.  

In furtherance of the Clinton-Gore White House’s scheme to keep the “Mail2 problem” a secret --  and thereby conceal crucial e-mail evidence this Court, congressional investigators and independent counsels --  the Clinton-Gore White House and its Clinton-Gore Justice Department counsel, had Barry submit at least two (2) false declarations to this Court to try to “head off” an oral and “free flowing” Rule 30(b)(69) deposition.  When this failed, the Clinton-Gore White House and its Justice Department then had Barry give false oral testimony to this Court.   Specifically, in a March 4, 1998 declaration signed by Barry and submitted to the Court by the Clinton-Gore Justice Department, Barry falsely swore, under oath, that “[s]ince July 14, 1991, e-mail with EOP has been archived weekly in an on-line format that is susceptible to being word-searched in the manner described below.”  See March 4, 1998 Declaration of Daniel A. Barry at para. 11.  On June 11, 1998, the Clinton-Gore Justice Department itself elicited false sworn oral testimony from Barry at his Rule 30(b)(6) deposition:

By Mr. Gilligan:


Q: [Plaintiffs’ Counsel] was speaking to you earlier, Mr.  Barry, about a situation he posited where somebody working in the White House would send an E-mail from their desk top PC to somebody in Idaho; do you recall that?


A: Yes.


Q: An E-mail of that kind, would that be stored in the Automated Records Management System?


A: Yes, it would.


Q: 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?


A: If it was directed to their E-mail at the EOP, yes, it would.


By Mr. Gilligan: Thank you, sir.


See June 11, 1998 Deposition of Daniel A. Barry  at 282-283.  On July 9, 1999, Barry again  falsely, in another declaration prepared by Clinton-Gore Justice Department counsel and submitted to this Court, that:

Since July 14, 1994, e-mail within the EOP system administered by the Office of Administration has been archived in the EOP Automated Records Management System (ARMS).  With this current system, this e-mail is susceptible to being word-searched for a single character string (e.g. “FBI” or “FBI files”) or a multiple character string (“and” and “or” searches) found on any line of text.


See July 9, 1999 Declaration of Daniel A. Barry at para. 4.  Barry knew he was lying.  Indeed, obviously deeply worried that he had been forced to lie by his superiors, and that he could be “hung out to dry” if the cover-up were ever discovered by this Court, Barry even highlighted those sections of his deposition transcript that he knew to be false, and sent out a stack of e-mails, several inches thick, noting problems with the archiving and retrieval of Clinton-Gore White House e-mail, urging that they be corrected.

Unfortunately for the Clinton-Gore White House’s cover-up, in June 1998 Northrop Grumman employee Robert Haas also happened upon the “Mail2 problem.”  Not being able to resist the temptation, Haas looked at some of the non-archived e-mail and told others about how incriminating they were concerning various Clinton-Gore scandals, including Filegate, Interngate, Chinagate and others.  Haas told his Northrop-Grumman supervisor at the Clinton-Gore White House, Betty Lambuth, about the discovery.  Ms. Lambuth, in turn, reported the discovery to Laura Crabtree, a Clinton-Gore White House official.  Sheryl Hall, formerly head of computer operations, but banished by Hillary Clinton to “purgatory” because she would not help construct the illegal WHODB database, was also told.

Crabtree relayed the discovery of the “Mail2 problem” to Office of Administration General Counsel and Chief of Staff  Mark Lindsay.  After speaking with Lindsay, Crabtree told Ms. Lambuth that, according to Lindsay, she and her team of Northrop Grumman employees had to keep the “Mail2 problem” secret, or they would all loose their jobs, be arrested, and put in jail.  Ms. Lambuth demanded confirmation that these threats came from Lindsay.  A meeting was set up with Ms. Lambuth, Crabtree, Lindsay and Paulette Cichone, another Clinton-Gore White House official,  and at this meeting Lindsay confirmed the threats.  The next day, Ms. Lambuth  and her staff of Northrop Grumman employees at the Clinton-Gore White House -- which consisted of Haas, John Spriggs, Sandra Golas and Yiman Salim -- had a conference call with Crabtree and Lindsay at which Lindsay reiterated the threats.  For his participation in the Clinton-Gore White House’s cover-up, Lindsay would be promoted several times.  His current position is Assistant to the President, which makes him a close advisor to President Bill Clinton himself.

After Lindsay’s threats, Ms. Lambuth and her team of Northrop Grumman employees were forced to meet in secret, outside the White House complex, to discuss ways to contain the “Mail2 problem,” which they labeled “Project X.”  An internal Northrop Grumman document entitled “Summary of Project X Discussions,” confirms the threats, as does the testimony of Ms. Lambuth, Sheryl Hall, Sandy Golas, Robert Haas, Kathy Gallant, Karl Heissner, Howard “Chip” Sparks, and even Daniel Barry.  Clearly, Lindsay’s threats and the coerced secrecy surrounding “Project X” became an integral part of the Clinton-Gore White House’s scheme to knowingly avoid  production of incriminating e-mail in the Lewinsky, Filegate and other Clinton-Gore White House scandals, in order to try to preserve the Clinton presidency. 

Ms. Lambuth and her team were eager to correct the problem, but not surprisingly the Clinton-Gore White House never provided the resources or gave the go ahead to do so.  Indeed, Lindsay deliberately concealed the “Mail2 problem” from Congress in March 1999 when he failed to request funds to correct the problem.  Rather than following the universal suggestion of his subordinates that funds be requested from Congress to correct the “Mail2 problem,” a higher level decision was made by Lindsay and his associate counsel, Kate Anderson, to delete all references to the “Mail2 problem” from the budget requests submitted to Congress and from Lindsay’s briefing book for his testimony before the House of Representatives Subcommittee of the Committee on Appropriations.

Meanwhile, Ms. Lambuth and her team of Northrop Grumman employees took matters into their own hands.  They approached Steve Hawkins, Northrop Grumman’s program manager for the White House contract, and Joseph Vasta, another Northrop Grumman official, requesting to meet with Northrop Grumman counsel to discuss the threats.  A meeting was scheduled for September 11, 1998 at Northrop Grumman’s headquarters in Reston, Virginia. 

Tellingly, rather than consulting with a civil law attorney who specializes in government contracts law, Northrop Grumman retained Earl J. Silbert, Esq., a criminal lawyer at the law firm of Piper, Marbury, Rudnick & Wolfe and who also is a close friend of White House Counsel Charles Ruff.  During the meeting on September 11, 1998, Silbert spoke by telephone with Ms. Lambuth and her team of Northrop Grumman employees, including Haas, about the threats, then called Ruff at the White House Counsel’s Office.  As noted on a phone message slip from Silbert’s office, Ruff’s Special Associate Counsel, Lanny Breuer, returned Silbert’s call.  Having been briefed on the entire matter by Lindsay, including most likely the threats, Ruff may have sought to avoid any direct contact obviously to later be able to maintain that he was not “hands on” and thus deny his involvement in the on-going coverup.[2]

At the same time, Northrop Grumman’s in-house counsel, Ralph K Pope, was drafting a letter, with input from Silbert, to be sent by Northrop Grumman’s Director of Contracts, Joseph Lucente, to the Clinton-Gore White House contracting officer Dale Helms.  Drafts of this letter make specific mention of the threats to Ms. Lambuth and her team of Northrop Grumman employees, but all reference to these threats was deliberately left out of the final version.  This deliberate omission demonstrates that Northrop Grumman was perfectly happy to ignore threats to its own employees in order to preserve its lucrative, $50 million-plus  contract with the Clinton-Gore White House.  The contract was an “Award Fee Contract,” meaning that Northrop Grumman’s compensation depended on the Clinton-Gore White House’s evaluation of its performance in key areas.  Therefore, it was in Northrop Grumman’s financial interest to ignore the threats to its employees and agree to participate in the Clinton-Gore White House’s efforts to conceal the “Mail2 problem,” so as to avoid  a poor performance rating that would reduce its contract fee payments.

Northrop Grumman’s concern that leaks about the “Mail2 problem” from its employees could affect payments under the contract proved to be well founded.  On or about December 8, 1998, an article appeared in Insight entitled “Looking for Information in all the Places.”  The Insight article disclosed the existence of “Project X” and reported that a problem with a server in a Clinton-Gore White House computer system might have resulted in the non-production of e-mails responsive to subpoenas by congressional panels and the independent counsel.  Following disclosure of the “Mail2 problem” in the December 1998 Insight article, Northrop Grumman received a significantly lower performance evaluation from the Clinton-Gore White House than it had received in prior evaluations.  Joseph Vasta, a Northrop Grumman official, was made to understand from sources within the Clinton-Gore White House the lower evaluation was the direct result of the Clinton-Gore White House’s understanding that the source of the Insight article was a Northrop Grumman employee.

Northrop Grumman again turned to Silbert, who contacted the White House Counsel’s office.  Notes of Silbert’s communications with the White House Counsel’s Office state:  “All taken care of.  No committee yet raising issues.”  Obviously, the word “Committee” -- with a capital letter “C” -- is a reference to Congressional Committees, a fact that Silbert tried to hide during his testimony to this Court.  Silbert Testimony, December 20, 2000, Tr. at 33.

            There can be no claim that high level Clinton-Gore White House officials and their counsel did not know about, and participate in, this cover up.  Most, if not all of the communications between Barry, who first discovered the “Mail2 problem,” and Clinton-Gore Justice Department pertaining to this case passed through Associate White House Counsels Michelle Peterson and Sally Paxton, who thus had to be aware of the falsity of the declarations and testimony Barry was providing to this Court.  Also, it was Peterson  who commented to Sheryl Hall, during the course of a meeting on discovery responses in this case, that all the Clinton-Gore White House had to do was delay for two (2) more years, until after the Clintons left office.   

Moreover, when Haas independently discovered the “Mail2 problem” in May/June 1998, Virginia Apuzzo wrote a memo about the discovery to Clinton-Gore White House Assistant Chief of Staff John Podesta, a copy of which was “cc-ed” on White House Counsel Charles Ruff.  Podesta, who often boasts about his technical expertise, obviously understood the ramifications of the “Mail2 problem” on document productions by the Clinton-Gore White House.  Podesta admitted in his testimony to this Court that, in the ordinary course, he would have reported to the Chief of Staff, who would have advised the President.  White House Counsel Charles Ruff admitted to this Court that, if Plaintiffs’ allegations about the threats made to Northrop Grumman employees and the impact of the “Mail2 problem” on document productions are true, it would constitute obstruction of justice.  Silbert also admitted that the Clinton-Gore White House’s threats to Northrop Grumman’s employees were “significant.”

Ada Posey, another high-level Clinton-Gore White House official,  realized the ramifications of the “Mail2 problem” and subsequent cover up, and obviously elected to leave the Clinton-Gore White House instead of becoming embroiled in the scandal.  She went to Podesta, who made arrangements for Energy Secretary Bill Richardson to find her a position at the U.S. Department of Energy, just as he previously did for Monica Lewinsky when he, as United Nation’s Ambassador, paid Ms. Lewinsky a house call at her Watergate apartment to offer her a job.

Nor can the Clinton-Gore White House Counsel’s Office’s claims about having conducted a “test” of its document productions be believed.  First, none of the people who claimed to have participated in the “test” -- Charles Ruff, Cheryl Mills and Michelle Peterson -- have any “specific recollection” of the alleged “test.”  Nor is there any documentation about the alleged “test.”  Second, Michelle Peterson, who allegedly performed the “test” at issue, has been at the center of other document production abuses and is being investigated by Independent Counsel Robert Ray for lying to his office about both these abuses and the alleged “test.”  Indeed, a referral was set by the Deputy Independent Counsel, Jay Apperson, to this Court for appropriate action and remedies concerning Ms. Peterson.   This referral remains pending.  Third, Ruff undertook no follow-up after the alleged “test,” even though the particular document production at issue was directly related to the Lewinsky scandal, and was allegedly performed at the height of the Lewinsky scandal and approaching impeachment trial.  In sum, if there ever was such a “test” about this obviously important issue -- and clearly, with the almost total memory loss of the Clinton-Gore Administration witnesses and the obviously lying and deceit, no logical, responsible person would ever believe that a “test” was ever performed -- someone would  recall the specifics of the “test,” some follow-up would have resulted, and some documentary evidence would exist.

Without question, it also is clear that the Clinton-Gore Justice Department knew about Barry’s discovery of the “Mail2 problem” in early 1998, yet concealed that fact from Plaintiffs, this Court, Congress and the Office of Independent Counsel.  It was, after all, Clinton-Gore Justice Department counsel who prepared and submitted the false declaration of Daniel Barry, prepared Barry at length for his deposition, and then elicited the false testimony from him at that deposition.  Mark Lindsay testified that he notified Clinton-Gore Justice Department lawyer Jason Baron about the “Mail2 problem” when it was first discovered.  A copy of Barry’s false declaration was even produced from Baron’s files.  Importantly, Jason Baron is a colleague of the Clinton-Gore Justice Department counsel defending the White House in this case, and he is “the expert” of the Federal Programs Branch on e-mail archiving systems – having even participated and worked with John Podesta in the Armstrong case.  Finally, despite being advised of the Mail2 problem by Plaintiffs’ counsel in December, 1998, when Insight Magazine broke the story, no one at the Federal Programs Branch “lifted a finger” to do anything.

It is also clear, however, that the Clinton-Gore Justice Department was aware of the threats made by Laura Crabtree and Mark Lindsay to Ms. Lambuth and her Northrop Grumman staff.  In February 2000, Clinton-Gore Justice Department and Federal Programs Branch lawyer Jim Gilligan interviewed Kathy Gallant, Director of the Clinton-Gore White House’s Information Systems and Technology Division, about the “Mail2 problem.”  During this one and a half hour telephone conversation, Gallant detailed not only the Clinton-Gore White House’s failure to records manage its e-mail properly, but the threats made by Crabtree and Lindsay.  Nonetheless, the Clinton-Gore White House and its Clinton-Gore Justice Department counsel have vehemently denied the threats to this Court in a futile attempt to keep their cover-up intact.

Importantly, the Clinton-Gore White House, its Clinton-Gore Justice Department and Northrop Grumman’s management would have gotten away with their cover-up had it not been for Sheryl Hall, a White House whistleblower who bravely took it upon herself to make sure that the truth was told.  Ms. Hall is a computer expert in the Clinton-Gore White House who was isolated and idled, and had her duties, responsibilities and staff taken away from her, after she defied Hillary Clinton’s order that a White House WHODB database be illegally configured to serve her and her husband’s political ambitions.  The retaliation experienced by Ms. Hall demonstrates that Mrs. Clinton has direct involvement in, if not ultimate responsibility for the computer systems operations in The White House.  It is thus likely that Mrs. Clinton also was aware of the “Mail2 problem” and the intentional failure to produce evidence in a myriad of Clinton-Gore White House scandals that resulted.  Importantly, the testimony of Robert Haas, and the weak denials of the Clinton-Gore Justice Department that Hillary and Bill Clinton (and the Gores) have kept secret pseudonym e-mail accounts, underscores her control and culpability concerning the e-mail cover-up.  This, among many other reasons, underscores why she must now finally be deposed.

Unannounced, Ms. Hall first came to Judicial Watch on the very same day that Plaintiffs were taking the deposition of Harold Ickes in this lawsuit.[3]  When Michelle Peterson, who was present at the deposition on behalf of the Clinton-Gore White House, saw Ms. Hall walk into Judicial Watch’s reception area, she looked like she had seen a ghost.  Ms. Hall’s coming forward encouraged others, such as Betty Lambuth, Kathy Gallant and Chip Sparks, to come forward as well.  When Plaintiffs’ followed-up on the information provided by these and other whistleblowers, they discovered that not only was the “Mail2 problem” substantial, but threats had been made to keep the “Mail2 problem” secret.  Some witnesses even feared for their lives.  For example, someone placed on Robert Haas’ chair a list of people associated with the Clinton-Gore White House who had died under mysterious circumstances, much like Linda Tripp found on her chair at the Pentagon after her cooperation with the Office of Independent Counsel became public.  Betty Lambuth lost her job.  Chip Sparks also suffered retaliation  after he came forward.          

Nonetheless, and consistent with Michelle Peterson’s statement to Sheryl Hall that all the Clinton-Gore White House needed to do was delay until a new administration took over, the Clinton-Gore White House has continued to drag its feet on the “Mail2 problem.”  For example, since the “Mail2 problem” was made public in February 2000:

·            The Clinton-Gore White House has cleverly strung Congress and this Court along by promising production of e-mail by dates that were never kept.  Now, not coincidently, the Clinton-Gore White House – consistent with the delay tactics admitted to by Associate White House Counsel Michelle Peterson – now says that all “lost e-mail” will not be word searchable until February, 2001, well after the Clintons leave the White House.  And now, the evidence may be in the process of being shipped to the Clinton Presidential Library in Little Rock, Arkansas.

·            The Clinton-Gore White House has lied about how ECS and SRA were hired to reconstruct the e-mail in a word-searchable format.

·            ECS and SRA attempted to convince the Court that reconstruction would take an extraordinary amount of time until On Track, an independent entity retained as an expert by Plaintiffs, and which had originally bid for the reconstruction project, not surprisingly showed how the project could be completed in a fraction of the time estimated by ECS and SRA.

·            Instead of hiring a company that had knowledge and technology “on the shelf” for reconstructing the its e-mail, the Clinton-Gore White House intentionally chose a company that was much less qualified and experienced in this area.

·            One (1) year after the “Mail2 problem became public, only 50 out of 3,097 tapes have been reconstructed and searched.

·            Also, documents and evidence were destroyed such, as Zip Drive disk created by Haas and the file containing search results that Haas forwarded to Easley.

The Clintons are about to leave The White House under extraordinary circumstances.  Rather than being held accountable under the “Rule of Law,” they are enjoying an $8 million book deal and moving into a $2.8 million home in the fashionable tony Wisconsin Avenue, Northwest section of the District of Columbia.  This complements the $1.7 million mansion in Chappaqua, New York and a planned multi-million dollar condominium in downtown Manhattan.  The New York Times reports that Bill Clinton will soon be effectively in charge of the Democratic Party, and Hillary Clinton is now a U.S. Senator from the State of New York.  Their chief fundraiser, Terry McAuliffe, has been made Chairman of the Democratic National Committee, obviously to pave the way for a 2004 White House Presidential run by Mrs. Clinton.  Some have speculated she would nominate Bill Clinton as her Vice Presidential running mate.  All of this has been made possible by the e-mail cover-up.  And, Congress will not be seriously pursuing its investigation of these scandals because Republicans, in the “spirit of bi-partisanship,” if not “appeasement,” do not want to be provocative after the close presidential election of 2000, and the various independent counsels have grown weary and given up.  It is left to this Court to stand up for what is right and insure that the American Public’s need and cry for justice does not go unanswered. 

II.            Discussion.

As a remedy for the perjury and obstruction of justice detailed above, Plaintiffs respectfully request that the Court issue orders to show cause why the following entities and persons should not be held in contempt:  The Clinton-Gore White House, the Clinton-Gore Justice Department, Northrop Grumman, Daniel Barry, Laura Crabtree, Mark Lindsay, Michelle Peterson, Cheryl Mills, Jason Baron, Anne Weismann, James Gilligan, Elizabeth Shapiro, Julia Fayngold Covey, Ralph K. Pope, Lowell Brown and Earl Silbert.  In addition, Plaintiffs also respectfully request that the Court sanction the above-referenced entities and persons under all applicable rules, statutes and the Court’s inherent authority, including Rules 37, 11 and 16 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927.  Finally, Plaintiffs respectfully request that the Court preclude the Clinton-Gore White House from presenting a defense at the trial of this matter, or at a minimum, that adverse factual findings be made against the Clinton-Gore White House on the issues raised by this lawsuit. 

A. This Court has the Power to Hold the Clinton-Gore White House, the Clinton-Gore Justice Department, and Related Individuals in Contempt.


The power of courts to protect the efficient administration of justice, and to prevent affronts to their integrity, are as old, and as certain, as the courts themselves.  Contrary to the  preposterous, frivolous arguments of the Clinton-Gore White House and the Clinton-Gore Justice Department, this Court has the power, and the obligation, to punish the contemptible behavior of both the Clinton-Gore White House, and the Clinton-Gore Justice Department.

This Court also has inherent power to punish witnesses for contempt of its lawful processes.  Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1999).  “This power is essential to the proper conduct of the judicial function and without it a court would be unable to preserve decorum or assert its authority by order or decree.”  In re Williams, 306 F. Supp. 617, 618 (D.D.C. 1969).  This power is based in the common law, has deep historical roots, and has been recognized here since the colonial era.  Michaelson v. United States ex rel. Chicago, St. P., & O Ry. Co., 266 U.S. 42, 65-66 (1924); United States v. Hudson, 7 Cranch 32, 34 (1812) (courts’ contempt power “necessary to the exercise of all others.”).

1. The Clinton-Gore White House, the Clinton-Gore Justice Department, and Involved Individuals, Should be Held in Criminal Contempt.


For their continued obstruction of justice and disrespect of the Court’s authority and decorum in this case, appropriate individuals in both the Clinton-Gore White House and the Clinton-Gore Justice Department should be held in criminal contempt.  Congress has codified the crime of contempt at 18 U.S.C. § 401, two of whose subsections are applicable here.

18 U.S.C. § 401(3) grants courts the power to punish by fine or imprisonment “Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”  The three elements of contempt under this subsection are:

(1) there must be a violation (2) of a clear and reasonably specific order of the court, and (3) the violation must have been willful.


United States v. NYNEX Corp., 8 F.3d 52, 54 (D.C. Cir 1993).  “For a violation to be willful, the defendant must have acted with deliberate or reckless disregard of the obligations created by the court order.”  United States v. Roach, 108 F.3d 1477, 1481 (D.C. Cir. 1997), cert. denied, 522 U.S. 983, vacated on other grounds, 136 F.3d 794 (D.C. Cir. 1998), citing, In re Holloway, 995 F.2d 1080, 1082 (D.C. Cir. 1993); see also id., citing, United States v. Greyhound Corp., 508 F.2d 529 (7th Cir. 1974) (willful violation is violational act that contemn or knew or should have known was wrongful.).

This standard is clearly met here.  In this action, the Court on April 13, 1998 ordered  that “The 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 this Memorandum and Order.”  April 13, 1998 Memorandum and Order at 21.  Thus, in clear and specific language, the Court ordered the Clinton-Gore White House and the Clinton-Gore Justice Department to make Daniel Barry available for deposition, and set forth the scope of the discovery Plaintiffs could seek from him.  At the deposition, Barry testified falsely and clearly perjured himself.  See Transcript of Deposition of Daniel A. Barry, June 11, 1998.  Additionally, Barry supplemented his deposition testimony with a Declaration, in which he further lied to the Court and failed to correct his deposition testimony.  See Declaration of Daniel A. Barry, July 9, 1999.

Such conduct is clearly contemptible.  In the analogous case Jones v. Clinton, 36 F. Supp. 2d 1118 (E.D. Ark. 1999) (another instance of this President’s misconduct), Chief Judge Susan Webber Wright held President Clinton in contempt of her court for providing “intentionally false testimony” in violation of court discovery orders.  Id. at 1130.  During discovery, Judge Wright had ruled that information regarding persons with whom President Clinton had, or attempted to have, sexual relations, was within the scope of discovery.  See Jones v. Clinton, No. LR-C-94-290 (E.D. Ark.), December 11, 1997 Order at 3.  Pursuant to that order, at the deposition of President Clinton, Judge Wright overruled objections by the President to questions regarding Ms. Monica Lewinsky, with whom the President had sexual relations.  See Jones, 36 F. Supp. 2d at 1121.  “Having been so ordered,” the President then testified that he had never had sexual relations with Ms. Lewinsky.  Id.  This testimony, of course, was absolutely false.  Moreover, the President compounded his lies when he referenced Ms. Lewinsky’s affidavit, in which she denied having sexual relations with the President, and called it accurate.  See id. at 1122.

Because President Clinton thus provided, and incorporated, false testimony on a topic which Judge Wright had ordered within the scope of discovery, she held that he violated a court order, and held him in contempt.  See id. at 1130.  The President’s contemptible conduct is closely analogous to the conduct of Barry and his accomplices, where Barry testified falsely on a topic ordered within the scope of discovery, and supplemented his false testimony with a false declaration.  In fact, the President could have (and should have) been held in criminal contempt.

In addition to 18 U.S.C. § 401(3), 18 U.S.C. § 401(1) provides an alternative ground for a finding of criminal contempt.  18 U.S.C. § 401(1) gives a court the power to punish by fine or imprisonment “Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.”  In this Circuit, there are four elements of criminal contempt under 18 U.S.C. § 401(1):

[1] misbehavior of a person, [2] in or near to the presence of the court, [3] which obstructs the administration of justice, and [4] which is committed with the required degree of criminal intent.


United States v. McGainey, 37 F.3d 682, 684 (D.C. Cir. 1994).  In United States v. Griffin, 589 F.2d 200, 204-05 (5th Cir. 1979), the court held that perjurious testimony is obstruction of justice, because “[t]he perjurious witness can bring about the miscarriage of justice by imperiling the innocent or delaying the punishment of the guilty.”  Hence, in this case, all of the lies and misrepresentations perpetrated by the Clinton-Gore White House, with the assistance and acquiescence of the Clinton-Gore Justice Department, including Barry’s false declarations of March 4, 1998 and July 9, 1999, as well as his false deposition testimony of June 11, 1998, constitute obstruction of justice and warrant a finding of criminal contempt.  This obstruction is only compounded by the threats made to Clinton-Gore White House computer operators and contractors who were told that the would be sent to jail if they spoke to anyone about the Mail2 problem, even their spouses.

Criminal contempt proceedings need not be initiated by indictment.  Mitchell v. Fiore, 470 F.2d 1149, 1153 (3rd Cir. 1972), citing, Green v. United States, 356 U.S. 165, 183-85 (1958).  An order to show cause can furnish the witness adequate notice and thus comport with the requirements of due process.  Mitchell, 470 F.2d at 1153.  A proceeding for criminal contempt can also be initiated by the Court on its own motion.  See Fed. R. Crim. P. 42(b).  Criminal contempt powers can be exercised by a court without a jury trial, so long as the term of incarceration does not exceed 180 days.  Roach, 108 F.3d at 1484.  Moreover, a judge can summarily punish contempt from the bench if the contemptible conduct was done in the presence of the court.  See Fed. R. Crim. P. 42(a).  The standard of proof is guilt beyond a reasonable doubt -- a standard that Plaintiffs clearly can satisfy for the Court.

2. The Clinton-Gore White House, the Clinton-Gore Justice Department, and Involved Individuals, Can  Also Be Held in Civil Contempt.

In the unlikely event that the Court declines to hold or institute criminal contempt proceedings against the Clinton-Gore White House, its counsel and relevant officials,  the Court can also hold appropriate individuals in the Clinton-Gore White House and the Clinton-Gore Justice Department in civil contempt for their behavior.  The primary difference between criminal and civil contempt is that criminal contempt is designed to punish past misdeeds, while civil contempt is designed primarily to assure compliance with court orders, or to compensate persons harmed by the failure to comply with court orders.  See Petties v. District of Columbia, 897 F. Supp. 626, 629-30 (D.D.C. 1995).  Accordingly, criminal contempt is punitive, to be employed in situations where the contempt cannot be purged.  Civil contempt, by contrast, exists where the contempt can be purged, or where criminal sanctions are not available.  See Jones, 36 F. Supp. 2d 1118.  However, monetary fines can be assessed from either criminal or civil contempt.  See International Union v. Bagwell, 114 S.Ct. 2552 (1994).  Fines that are “explicitly compensatory in nature” are civil.  National Organization for Women v. Operation Rescue, 929 F. Supp. 461, 462-63 (D.D.C. 1996), citing, NOW v. Operation Rescue, 37 F.3d 646, 658, 662-63 (D.C. Cir. 1994).

Courts have inherent power to make findings of civil contempt in order to “protect their integrity and prevent abuses of the judicial process.”  Jones, 36 F. Supp 2d at 1125, and authorities cited therein.   The elements of a finding of civil contempt are:

(1) a court order was in effect, (2) the order required certain conduct by the respondent, and (3) the respondent failed to comply with the court’s order.


Petties, 897 F. Supp. at 629.  In contrast to criminal contempt, “[t]he court need not find that the violations were willful or intentional.”  The standard of proof is clear and convincing evidence.  Id.  See also, Food Lion v. United Food and Commercial Workers Union, 103 F.3d 1007, 1016 (D.C. Cir. 1997) (“intent of recalcitrant party is irrelevant”).

While criminal contempt show cause orders are the appropriate remedy given the severity of the obstruction,[4] these elements for civil contempt are absolutely met as well in the case at bar.  As set forth in detail above, Defendant and its counsel clearly violated a court order when Daniel Barry lied at his deposition about matters within the scope of discovery, when the deposition was taken pursuant to the Court’s Order of April 13, 1999.  Barry and his accomplices compounded their lies when Barry referenced, and did not correct, his deposition testimony in his false declaration of July 11, 1998.  Therefore, under the analysis of Jones, supra, which dealt with analogous conduct, the Clinton-Gore White House can also be held in civil contempt for providing false testimony.  See Jones, 36 F. Supp. 2d at 1121-1122, 1130.  Moreover, the Clinton-Gore Justice Department can be held in civil contempt for assisting and acquiescing in the Clinton-Gore White House’s conduct.

Whether the contempt of the Clinton-Gore White House and its counsel is procedurally labeled “criminal” or “civil” is a legal decision; although clearly criminal contempt more appropriately reflects their crimes, particularly since at least six (6) months of e-mail has been destroyed and can never be recreated.  Nor can the inordinate delay caused by this obstruction be repaired.  Moreover, it is clear that the Clinton-Gore White House and the Clinton-Gore Justice Department are still concealing information relevant to this case that must be revealed, and it is clear that their dissembling has continued to irreparably damage the just and timely resolution of this matter.  Indeed, January 20, 2001 is now almost upon us, and as admitted to by Michelle Peterson, the Clinton-Gore White House strategy of delaying the case until the Clintons left The White House has clearly succeeded.  The perpetrators of this gross obstruction of justice strategy therefore must both be compelled to comport themselves ethically and obey Court Orders in the future, and, as important, be punished for past misdeeds.  Judge Learned Hand advised long ago that courts must not tolerate obstruction of the truth by witnesses, for do so would render the law “feeble and fumbling.”  See, e.g., United States v. Bryan, 339 U.S. at 334, quoting, Loubriel v. United States, 9 F.2d 807, 808 (2d. Cir. 1926) (“The question is no less than whether courts must put up with shifts and subterfuges in the place of truth and are powerless to put an end to trifling.  They would prove themselves incapable of dealing with actualities if it were so, for there is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance.”).

B. This Court has the Power to Sanction the Clinton-Gore White House, the Clinton-Gore Justice Department, and Other Involved Individuals, Under Its Inherent Powers.

In a line of cases dating from at least 1812, the Supreme Court has consistently recognized the “inherent powers of federal courts . . . which ‘are necessary to the exercise of all others.’  United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812).”  Roadway Express v. Piper, 447 U.S. 752, 764 (1980).  Because these powers are fundamental,

“Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.”  Anderson v. Dunn, 6 Wheat. 204, 227 (1821); see also Ex parte Robinson, 19 Wall. 505, 510 (1874).  These Powers are “governed not by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”  Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962).


Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991).

The inherent powers of the federal courts include the power to punish for contempt and  “reach[] both conduct before the court and that beyond the court’s confines . . .” because “‘[t]he underlying concern that gave rise to the contempt power was not . . . merely the disruption of court proceedings [but] disobedience to the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of trial.’”  Id. at 44, quoting, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798 (1987) (citations omitted).

The sanctions available to this Court to respond to abuses of its process are varied and flexible.  “A primary aspect . . . is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.”  Chambers, 501 U.S. at 44-45.  In addition to inherent powers to control the membership of the bar, punish for contempt, and vacate judgments:

[t]here are other facets to a federal court’s inherent power.  The court may bar from the courtroom a criminal defendant who disrupts a trial.  Illinois v. Allen, 397 U.S. 337 (1970).  It may dismiss an action on grounds of forum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08 (19147); and it may act sua sponte to dismiss a suit for failure to prosecute, Link [370 U.S.] at 630-631.


. . . Consequently, the “less severe sanction” of an assessment of attorney’s fees is undoubtedly within the court’s inherent power as well.  Ibid.  See also, Hutto v. Finney, 437 U.S. 678, 689, n.14 (1978).


Chambers, 501 U.S. at 44-45.

While this power “must be exercised with restraint and discretion,” and “‘ought to be exercised with great caution,’ it is nevertheless ‘incidental to all Courts.’”  Id. at 44, 45, quoting, Link, 370 U.S. at 631.    

1. Plaintiffs Have Demonstrated That the Clinton-Gore White House, the Clinton-Gore Justice Department, and Involved Individuals, Acted in Bad Faith.


In exercising its inherent powers, a court must make a finding of bad faith. “Before awarding sanctions . . . the court must make an explicit finding that counsel acted in bad faith.  [Roadway Express v. Piper, 447 U.S. 752,] 767 [(1980)].”  Alexander v. FBI, 192 F.R.D. 25, 31 (D.D.C. 2000).  But, as this Court has indicated, “[a] party demonstrates bad faith by delaying or disrupting the litigation or hampering enforcement of the court order.”  Id., citing, Alexander v. FBI, 186 F.R.D. 6, 11 (D.D.C. 1998).

Clearly the misconduct alleged and proven demonstrates that the Clinton-Gore White House and the Clinton-Gore Justice Department have delayed and disrupted these proceedings by opposing reasonable and fundamental discovery requests with, inter alia:  (1) frivolous motions based on false and misleading declarations and testimony; (2) threats to its employees and contractors; and (3) inexcusable failures to correct prior filings and bring relevant information to the Court’s attention.  In fact, to this day, the Clinton-Gore and the Clinton-Gore Justice Department and involved individuals have failed to even correct Mr. Barry’s false affidavits.  Quite to the contrary, they continue to insist that the Declarations are accurate based on frivolous interpretations and continue to belittle Plaintiffs’ allegations of fraud and obstruction, as well as the Court’s authority to hold evidentiary hearings.

2. Plaintiffs have Demonstrated the Abuse of this Court’s Process by The Clinton-Gore White House, Clinton-Gore Justice Department, and Involved Individuals,  by Clear and Convincing Evidence.


A further prerequisite for the exercise of the Court’s inherent powers is that the underlying misconduct must be proven by clear and convincing evidence.  “[F]or those inherent power sanctions that are fundamentally penal -- dismissals and default judgments, as well as contempt orders, awards of attorney’s fees, and the imposition of fines -- the district court must find clear and convincing evidence of the predicate misconduct.”  Shepherd, 62 F.3d at 1478.[5]

In Shepherd, defendant was accused of falsifying a document.  The defendant “categorically denied altering the memorandum” and produced numerous witnesses who confirmed that the memorandum produced in discovery was authentic.  Id. at 1473.  Nevertheless, the district court had held that the falsification had been proven, but in doing so applied a preponderance of the evidence standard.  The District of Columbia Circuit reversed, holding that the clear and convincing standard applies to determinations of sanctionable misconduct under the court’s inherent powers.  Id. at 1472.  But, significantly, rather than holding that the evidence was insufficient to meet this standard, the Circuit Court remanded the case to the District Court to apply the correct standard.

The evidence of misconduct in this case is more compelling than the evidence before the court in Shepherd.  There, the allegation was that a single document had been altered.  Further, the allegation was countered by a number of witnesses who were not accused of participating in the misconduct and whose testimony directly contradicted the allegations.  In this case, on the other hand, the allegations include not only intentionally falsifying numerous documents and pleadings, but also deliberate failure to produce incriminating evidence, deliberate failure to correct false pleadings, and an attempt to keep evidence from the court by threatening witnesses with imprisonment if they mentioned the Mail2 problem to anyone else.  In stark contrast to Shepherd, not one of these allegations is contradicted by direct testimony from a disinterested witness.  Rather, the only “contradictory” evidence produced by the Clinton-Gore White House and the Clinton-Gore Justice Department consists of continued bad memories and self-serving, weak and contradictory denials by the persons accused of perpetrating the fraud.  Given these facts, it is well within this Court’s discretion to find that the allegations of misconduct have been established by clear and convincing evidence under the standard set in Shepherd.

Nevertheless, as if they were living on another planet, where truth is fiction and fiction is truth, the Clinton-Gore White House and the Clinton-Gore Justice Department argue that Plaintiffs have failed to provide any evidence (let alone clear and convincing evidence) that Barry and his accomplices intended to mislead the court or plaintiffs.  To support this argument, the Clinton-Gore Justice Department set up a strawman argument, asserting that Barry and his counsel had every motivation in this case to disclose the Mail2 problem and the additional reconstruction it would require, since the purpose of Barry’s affidavit was to demonstrate the Clinton-Gore White House’s burden in searching ARMS.   Motion to Dismiss at 15.

In essence, the argument of the Clinton-Gore White House and the Clinton-Gore Justice Department is that there is no direct evidence that Barry intended to mislead the Court.  That is simply false, and itself warrants further sanctions for its attempt to again mislead this Court.

The argument of the Clinton-Gore White House and the Clinton-Gore Justice Department also ignores the large body of evidence demonstrating numerous other sanctionable acts by the Clinton-Gore White House and Clinton-Gore Justice Department attorneys.  The activities and motivations of Barry, the Clinton-Gore White House, the Clinton-Gore Justice Department, and involved individuals cannot be assessed in the vacuum of this case.  Rather, the Court must look at the surrounding circumstances of the other scandals, especially the Lewinsky scandal, and the President’s possible impeachment and removal from office, which provided overwhelming motivation to mislead everyone, including this Court, as to the existence of Mail2.  Of course, another reason to hide the Mail2 issue from the Court is to hide the related threats to Northrop-Grumman contractors. 

The argument of the Clinton-Gore White House and the Clinton-Gore Justice Department that evidence of abuse of Congressional processes is irrelevant to this case is also not well taken.  Again, the Clinton-Gore White House’s conduct in response to Congressional subpoenas and in testimony before Congressional Committees must be viewed as part of the pattern of abuse and obstruction.  These activities before Congress are relevant to this case because:  (1) they are circumstantial evidence of the larger cover-up lying behind the misrepresentations made in this case (i.e., they demonstrate state of mind and intent); and (2) the failure to disclose this to Congress and ask for funds to correct the problem in 1999 has had a direct and material affect on this case by delaying the ability of Plaintiffs and the Court to obtain evidence necessary to the resolution of this case.

C. This Court has the Power to Sanction the Clinton-Gore White House, the Clinton-Gore Justice Department, and Involved Individuals, Under the Federal Rules of Civil Procedure.

The Court also has ample authority under  Rules 11, 16, and 37 of the Federal Rules of Civil Procedure for addressing the misconduct involved here.

1. This Court has the Power to Sanction the Clinton-Gore White House, the Clinton-Gore Justice Department, and Involved Individuals, Under Rule 11.


Rule 11, which is intended to address the filing of frivolous or improperly motivated pleadings, applies to matters presented in filed papers.  See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).  The central role of Rule 11 is deterrence:

It is now clear that the central purpose of Rule 11 is to deter baseless filings in district court and thus, consistent with the Rules Enabling Act’s grant of authority, streamline the administration and procedure of the federal courts . . ..  Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable, and ‘not interposed for any improper purpose.’  An attorney who signs the paper without such a substantial belief ‘shall’ be penalized by ‘an appropriate sanction.’  Such a sanction may, but need not, include payment of the other parties’ expenses . . ..  Although the Rule must be read in light of concerns that it will spawn satellite litigation and chill vigorous advocacy, . . . any interpretation must give effect to the Rule’s central goal of deterrence.


 Cooter & Gell, 496 U.S. at 393.  Notably, “Rule 11 places an affirmative duty on attorneys and litigants to make a reasonable investigation (under the circumstances) of the facts and the law before signing and submitting any pleading, motion, or other paper.  Attorneys and parties are required to ‘think first and file later,’ to ‘look before leaping.’” Moore’s Federal Practice 3d, § 11.11[2][a] at 11-19.  Further, an attorney who has had extensive involvement in a case will be held responsible for imparting knowledge that could have been imparted in papers filed with the court,  see, e.g., Artco Corp. v. Lynnhaven Dry Storage Marina, Inc., 898 F.2d 953, 956 (4th Cir. 1990), and refraining from advocating positions contained in those papers after it is learned that they have ceased to have any merit.  See Advisory Committee Note to 1993 Amendment.  The imposition of sanctions under Rule 11 does require a showing of subjective bad faith.  Chambers v. NASCO, Inc., 501 U.S. 32 (1991).

Plaintiffs recognize that Fed. R. Civ. P. 11(d) provides that Rule 11 does “not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37.”  Nevertheless, Rule 11 comes into play, because the misconduct involved here goes far beyond the sort of run-of-the-mill discovery dispute the provisions of Rules 26-37 are designed to address.    

At least two facts are clear from the substantial evidence presented during the recent evidentiary proceedings:  (1) the information presented to the Court with the March 4, 1998  Motion to Quash, if not earlier, was false; and (2) at some point the Clinton-Gore White House and its attorneys knew that false information had been filed.  The only question is “when did they know this?”  Plaintiffs’ assert that when all of the evidence is viewed as a whole, a pattern of obstruction and delay emerges which leads to the conclusion that the Clinton-Gore White House and the Clinton-Gore Justice Department knew before the information was presented to the Court and deliberately filed the false information in an attempt to mislead the Court and the Plaintiffs.  The Clinton-Gore White House and the Clinton-Gore Justice Department counters that this was simply an innocent mistake, and it was always their intention to be completely candid and forthcoming with the Court.  But if that was the case, the Clinton-Gore White House and the Clinton-Gore Justice Department would have voluntarily disclosed the information to the Court before the information became known to the public.  They had plenty of opportunities to do so.  For instance, the information could have been divulged, among other places, in

A. Mr. Barry’s March 30, 1998 Supplemental Declaration;

B. Mr. Barry’s June 10, 1998 deposition;

C. Mr. Barry’s July 10, 1998 errata sheet;

D. Mr. Barry’s July 9, 1999 Third Declaration;

E. The Clinton-Gore White House’s various Responses to Plaintiffs’ Requests for Production of Documents;

F. The Clinton-Gore White House’s Opposition to Plaintiffs Motion to Compel Response to Second Request for Production of Documents;

G. The Clinton-Gore White House’s several pleadings filed in response to Plaintiffs’ motions leading to these proceedings; or

H. Any time during the five-month-long evidentiary hearing on this matter.

But, rather than divulge the truth, the Clinton-Gore White House and the Clinton-Gore Justice Department have chosen, at every step and in response to every opportunity to come forward, to withhold the truth, and as much relevant information as possible, making the litigation unnecessarily protracted and costly.  Instead, they would rather insult Plaintiffs and the Court -- calling this proceeding, in Woody Allen fashion, a “mockery of a sham.”  What has resulted is an absolute, unmitigated and unconscionable waste of three years of this Court’s and the Plaintiffs’ time and resources, as well as the intervening destruction of evidence, such as six months of erased e-mail and other computer evidence.  Their conduct clearly is sanctionable under Rule 11.

2. This Court has the Power to Sanction the Clinton-Gore White House, the Clinton-Gore Justice Department, and Involved Individuals, Under Rule 16.


Fed. R. Civ. P. 16(f), which is “designed to enforce compliance with the applicable procedural rules at the pretrial stage of litigation, and to ensure the parties’ adherence to reasonable management requirements for case preparation,” Moore’s Federal Practice 3d, §16.90[1] at 16-213, authorizes sanctions for, inter alia, failure to obey a “pre-trial order.”  The Rule states, in pertinent part:

If a party or a party’s attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party’s attorney is substantially unprepared to participate in the conference, or if a party or party’s attorney fails to participate in good faith, the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D).  In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney’s fees . . ..


Fed.R.Civ.P. 16(f) (emphasis added).  The imposition of monetary sanctions under Rule 16(f) does not require a showing of prejudice.  See John v. Louisiana, 899 F.2d 1441, 1448-49 (5th Cir. 1990).              Rule 16(f) is implicated in at least two regards.  First, the Court’s June 12, 1997 Memorandum Opinion and Order allowed Plaintiffs to proceed with discovery relating to the issues of scope of employment (an issue which necessarily implicated issues relating to the culpability of the individual defendants) and class certification.  This Order, in substance, constitutes a “pretrial order” within the meaning of Rule 16(f).   Thus, the extent that the Clinton-Gore White House and/or the Clinton-Gore Justice Department, whether through deceit or negligence, prevented the Plaintiffs from obtaining discovery either of or relating to the subject e-mails, this Order was violated, and sanctions under Rule 16(f) are appropriate.[6] 

Second, Clinton-Gore Justice Department repeatedly (and falsely) argued, during pre-trial conferences, that e-mail after July 1994 was being records managed properly.  At a January 13, 1998 conference, the Clinton-Gore White House and its counsel falsely represented to the Court:

[By Clinton-Gore Justice Department Counsel]  As to the post July 1994 period, email was also stored on tape, but it is in a format that is more readily susceptible of a word search.  Even so, unless that search is properly targeted, it will take a substantial amount of computer processing time to perform, then, again, if not properly targeted, generate huge volumes of email that would then have to be culled from what we believe will be mostly, if not entirely, irrelevant material.


See January 13, 1998 Transcript at 55.  At another conference the following month, Clinton-Gore Justice Department counsel even stressed the need to present issues raised by Plaintiffs’ Rule 30(b)(6) notice of deposition, which included the email issue, to the Court in a thorough and complete manner, including the submission of “technical” declarations:

[By Clinton-Gore Justice Department Counsel]  Now, what we propose to do, and this is why we’ve asked for additional time to respond to the 30(b)(6), is to come in with a motion for a protective order, and that would be the vehicle by which we brief the entire computer issue that we represented to the Court at the last status conference, that this is the type of issue that need briefing and presentation, and it involves technical declarations that need to be carefully put together.


See February 13, 1998 Transcript at 49 (emphasis added).  In reliance on Clinton-Gore Justice Department’s representations, the Court set another status conference for April 1, 1998 and even encouraged  the Clinton-Gore Justice Department to fully brief these issues so that they were ripe for the Court to issue rulings:  “In the meantime, I’ll rule on motions that are ripe, but it may be helpful to get all this computer stuff ripe, to where we can hear about that April 1st.”  Id. at 49-50 (emphasis added).   At the April 1, 1998 conference, Clinton-Gore Justice Department counsel reiterated and reconfirmed:

[By Clinton-Gore Justice Department Counsel]  Finally, the subject of e-mail, Your honor.  Now we have several declarations in the record for Mr. Daniel Barry, which confirms the discussions that you and I had on the subject of e-mail a couple of months ago.  Again, on the subject of e-mail searches, we have to start from the understanding that we’re talking, again, about a remote likelihood of producing any responsive information.  As Mrs. Clinton had no PC, our records indicate that she had no e-mail account at the White House [a representation also  proven to be false] . . ..  To appreciate the burdens involved in searching e-mail, we have to distinguish, as I have discussed with Your Honor before, e-mail that was created after July of 1994, and e-mail that was created before that period.  E-mail that was created after July 14, 1994 is maintained on tapes that are in a word searchable format.  Pursuant to the Armstrong case, some e-mail --  I believe the months of April, May, and June of 1993, have been restored to a searchable format.  And word searches of this restored e-mail are possible, but to perform  word search on all EOP e-mail that has already been restored, that alone would take up to two weeks of processing time, and, you know, only then do you begin to talk about word searches and then dumping out the e-mail that are within the scope of these word searches to then review it for privilege and responsiveness to plaintiffs’ document requests . . ..  So to come to the end of it, Your Honor, we ask this Court to quash plaintiff’s 30(b)(6) notice and to relieve EOP from conducting any of the sorts of onerous [e-mail] and computer searches that the plaintiffs have insisted upon.


See April 1, 1998 Transcript at 42-44 (emphasis added).  Clearly, in light of the substantial, compelling evidence presented at the evidentiary hearing, these statements were false, and the Clinton-Gore White House and its counsel knew at the time that they were false.  All the more egregiously, these knowingly false statements were made to the Court despite its urging the Clinton-Gore White House to “get all this computer stuff ripe.”   The only possible conclusion that can be reached is that the Clinton-Gore White House participated in these conferences in bad faith.  The Court clearly has the legal authority and the factual basis, to award sanctions, and it must do so.

3. This Court has the Power to Sanction the Clinton-Gore White House, the Clinton-Gore Justice Department, and Involved Individuals, Under Rule 37.


Federal Rule of Civil Procedure 37(b)(2) also provides this Court with the ability to sanction a party for abuse of the Court’s process in failing to obey a discovery order.  “Pursuant to Rule 37(b)(2), a court may hold a party in contempt of court for failing to obey an order to provide discovery and may impose several specific, nonexclusive sanctions to address such misconduct, ‘the parameters of the available measures being ‘such orders in regard to the failure as are just.’” Jones, 36 F. Supp 2d at 1125, quoting, Cobell, 30 F. Supp. 2d 24, quoting, Fed. R. Civ. P. 37(b)(2).

Specifically, Rule 37(b)(2) authorizes a court to sanction a party for failing to “obey an order to provide or permit discovery.”  Under Rule 37(b)(2), “the court in which the action is pending may make such orders in regard to the failure as a just[.]”   Rule 37(b)(2) also directs a court, “[i]n lieu of any of the foregoing orders or in addition thereto . . . to “require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure . . ..” 

There are two elements to a finding of a violation of Fed. R. Civ. P. 37:

[1] the court must have fashioned an Order that is clear and reasonably specific, and [2] the party must have violated that Order.

Jones, 36 F. Supp. 2d at 1126, citing, Cobell, 30 F. Supp. 2d 24.  These elements are clearly met here.  As set forth above, in its April 13, 1998 Memorandum and Order, this Court denied in part the Clinton-Gore White House’s motion for a protective order quashing Plaintiffs’ Rule 30(b)(6) Notice of Deposition.  Daniel Barry was deposed pursuant to that Notice of Deposition on June 11, 1998, and was questioned regarding matters ordered within the scope of discovery.

When Barry testified falsely about e-mail being records managed, the Clinton-Gore White House thus  failed to obey the Court’s April 13, 1998 Memorandum and Order requiring it to comply with Plaintiff’s Rule 30(b)(6) Notice of Deposition.  And, again, according to the analysis in Jones, supra, such conduct, analogous to President Clinton’s violation of Judge Wright’s discovery order, is contemptible and gives rise to sanctions under Fed. R. Civ. P. 37.  See Jones, 36 F. Supp. 2d at 1126 (holding that false testimony was a violation of a discovery order in violation of Fed. R. Civ. P. 37(b)(2)).  Thus, the Court has authority under Rule 37(b)(2) to sanction the Clinton-Gore White House and the Clinton-Gore Justice Department and involved individuals for failing to abide by its April 13, 1998 Order requiring the Rule 30(b)(6) deposition to go forward.

D. This Court has the Power to Sanction the Clinton-Gore White House, the Clinton-Gore Justice Department, and Involved Individuals, Under 28 U.S.C. § 1927.

Section 1927 permits an award of fees and costs where counsel “multiplies the proceedings in any case unreasonably and vexatiously.”  Alexander v. FBI, 192 F.R.D. 25, 31 (D.D.C. 2000).  “The law in this Circuit is unsettled over whether a court must find an attorney’s actions to be in bad faith before imposing sanctions under section 1927.”  Alexander, 192 F.R.D. at 31, quoting, United States v. Wallace, 964 F.2d 1214, 1218-19 (D.C. Cir. 1992).   As recently as 1998, the D.C. Circuit noted that “[t]his Court has not yet established whether the standard under 28 U.S.C. § 1927 should be ‘recklessness’ or the more stringent ‘bad faith.’”  LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 905 (D.C. Cir. 1998).  It is clear, however, that “unintended, inadvertent and negligent acts will not support an imposition of sanctions under section 1927.”  Alexander, 192 F.R.D. at 31.

In making an award under Section 1927, a court need not use the words “bad faith” or “reckless” explicitly.  LaPrade, 146 F.3d at 905.   “These words are not talismans required for affirmance.”  Id.   “According to the language of 28 U.S.C. § 1927, the district court must find that “the offending attorney’s multiplication of the proceedings was both ‘unreasonable’ and ‘vexatious.’”  Id.  “For such a finding to be valid, ‘evidence of recklessness, bad faith, or improper motive must be present.”  Id.

By knowing of the falsity of its representations to the Court as early as December 1998 , if not sooner, but failing to correct them, the Clinton-Gore White House and its counsel clearly “multiplie[d] these proceedings “unreasonably and vexatiously.”  Attorney’s fees and costs can and must, respectfully, be awarded pursuant to 28 U.S.C. § 1927.

IV.            Conclusion.   

The Clinton-Gore Justice Department’s defense of the Clinton-Gore White House boils down to a dishonest, and non-existent presentation.  Indeed, not one witness was called to the stand by them. Those who did appear, under Court process requested by Plaintiffs, developed bouts of amnesia.  The conduct of these witnesses was not only a disgrace, it showed the lack of respect and contempt which they hold for this Court, and the “Rule of Law.”

Daniel Barry’s declarations and deposition testimony were false.  He knew it.  The Clinton-Gore White House knew it, and the Clinton-Gore Justice Department knew it.  Further, Barry’s declarations and deposition testimony were not put forth in a vacuum.  They were submitted as part of an ongoing attempt to keep the Mail2 problem secret from Plaintiffs, this Court, the Office of Independent Counsel, Congress and, ultimately, the American people, at a time when the legal “necks” of this Administration and its leader were on the chopping block during the impeachment proceedings.  Both Plaintiffs, this Court, and more important the American people, are victims of this scheme.

Nor were Barry’s false testimonies isolated acts of abuse.  Rather, they are merely part of a larger pattern that has included false declarations, false deposition testimony, false pleadings and overt threats and intimidation to material witnesses.  And, to top it off, one Clinton-Gore Administration witness after another came forth and simply lied to this Court, all in the presence of their counsel, who frequently laughed, hissed and snickered during the proceedings and Court recesses, as if they were protected from scrutiny because of their official Justice Department status.

Finally, Barry’s declarations were not filed by Barry alone.  The record from this hearing shows that he was in constant contact with the lawyers in both the Clinton-Gore White House and the Clinton-Gore Justice Department throughout the preparation of each declaration, the preparation for his deposition, the deposition itself, the submission of errata, and his open-court testimony before this Court.  The record clearly shows that these attorneys had full knowledge of the Mail2 problem, its affect on searches, the intimidation of witnesses, and the false positions that were taken in pleadings and other documents that they drafted and filed.  Yet neither they, nor their fully informed superiors, including Messrs. Ruff and Podesta, did anything to correct the situation or otherwise bring the matter to the Court’s attention.  Given the institutional proximity of Ruff and Podesta to the President and First Lady, they must have been fully informed of the cover-up.  Indeed, when asked about the newly-exposed e-mail scandal at a press gathering, the President characteristically lied.  Therefore the Court must conclude that high-level Clinton-Gore White House officials were either proponents of the scheme or, at best, active participants.  In either event, their conduct is contemptible.

When the record is viewed as a whole, the abuse of the Court’s process and the Plaintiffs’ rights becomes clear.  Given the stakes involved in the e-mail coverup -- which occurred during the impeachment proceedings of 1998-99 -- the subterfuge clearly goes high into the Clinton-Gore White  House and the Clinton-Gore Justice Department.  And, it would neither be fair nor just to punish only lower level officials for their misdeeds -- as has occurred in nearly every other Clinton-Gore scandal, where the elites have gotten off scot free, but their inferiors were burned at the stake at taxpayers’ expense.  This Court is now in a position to craft appropriate orders to show cause for criminal contempt and other remedies, not only  to redress the prejudice caused to Plaintiffs, but also to preserve and further the interests of our justice system -- which has been trashed by this Administration and its so-called Justice Department time and again in this case, and, sadly, many others.  As the Clintons further enrich themselves at the expense of the public and by all accounts plan to retake the Presidency in 2004, a powerful message must be sent that “never again” will we allow such criminals, and their aiders and abetters, to occupy and legally represent The White House.


Respectfully submitted,





Larry Klayman, Esq.

D.C. Bar No. 334581




Paul J. Orfanedes, Esq.

DC Bar No. 429716


Suite 725

501 School Street, S.W.    

Washington, DC  20024

(202) 646-5172


Counsel for Plaintiffs


Thomas J. Fitton


Judicial Watch, Inc.

Not A Member Of The Bar



I hereby certify that on January 9, 2001, a true and correct copy of the foregoing PLAINTIFFS’ INITIAL LEGAL MEMORANDUM IN SUPPORT OF FINDINGS OF FACT AND CONCLUSIONS OF LAW was served via first class U.S. 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 C. Giles, Esq.

Thomas Millett, Esq.


P.O. Box 883                                                    

Washington, DC  20044


Attorneys for Defendant Hillary Rodham Clinton:


David E. Kendall, Esq.                

Paul B. Gaffney, Esq.

Marcie R. Ziegler, Esq.


725 12th Street, N.W.

Washington, DC 20005


Attorneys for Northrop Grumman:


Earl J. Silbert, Esq.

Richard J. Oparil, Esq.


1200 Nineteenth Street, N.W.

Washington, DC 20036






Jason Aldrich


[1]            See Court’s Memorandum and Order of December 13, 2000 at 1.

[2]           Regrettably, Mr. Ruff died on November 19, 2000.  The cause of death was first reported as an accident and later changed to a heart attack.  Exhibit 1.  He joins a long list of key material witnesses and defendants, including but not limited to former Clinton-Gore Commerce Secretary Ron Brown, Vince Foster and Jim McDougal, among several others, who have died at crucial times during the Clinton-Gore scandals.  Mr. Ruff’s death leaves Mr. Silbert as the only person able to testify about the telephone conversations, contacts and meetings they must have had about this e-mail scandal.  Mr. Silbert, who press reports reveal represents other Clinton-Gore White House officials and scandal figures, such as Erskine Bowles and James Riady, must have been in regular contact with Mr. Ruff.  Exhibit 2.  It is inconceivable that he did not discuss the Mail2 e-mail problem with him, and the threats to Northrop Grumman employees.  Mr. Silbert’s credibility on the witness stand was “less than zero,” and his demeanor and brazen contempt for the Court’s processes, like Ruff’s, a disgrace to the legal profession.  For example, he repeatedly testified that, while he was required to invoke the attorney-client privilege, if ordered to testify he would remember nothing in any event.  This Court, which is a guiding light in an otherwise decaying legal system, has too much integrity to allow members of the bar such as Mr. Silbert to try to take advantage of it by literally flouting its powers and authority.

[3]            The deposition of Harold Ickes was taking place in an adjoining conference room with glass partitions leading into Judicial Watch’s reception area..

[4]            Civil contempt fines would be paid by the U.S. taxpayers whereas criminal convictions would run against the individuals.  In addition, the facts of this case now provide the Court an opportunity to break the cycle of not holding individuals accountable during the Clinton-Gore scandals.  This is what has perpetrated the continuing lawlessness.

[5]            Note that this relates to general inherent powers sanctions and does not apply to  “issue-related” sanctions which are more remedial than punitive and are, therefore, governed by a preponderance of the evidence standard.  Shepherd, 62 F.3d at 1478.

[6]            There is no requirement of a  showing of bad faith or contumacious conduct by the recalcitrant party or attorney in order for Rule 16(f) to be invoked for violation of pretrial orders.  Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990); Resolution Trust Corp. v. Williams, 165 F.R.D. 639, 642-43 (D. Kan. 1996).