IN
THE UNITED STATES DISTRICT COURT
FOR
THE DISTRICT OF COLUMBIA
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’
INITIAL LEGAL MEMORANDUM IN
SUPPORT
OF FINDINGS OF FACT
Plaintiffs,
by counsel, hereby respectfully submit this Initial Legal Memorandum in Support
of Findings of Fact.
MEMORANDUM OF LAW
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,