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JW v. NARA Clinton draft indictment opposition 01740

JW v. NARA Clinton draft indictment opposition 01740

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Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
____________________________________)
Civil Action No. 15-cv-1740 (RBW)
PLAINTIFF MEMORANDUM POINTS AND AUTHORITIES OPPOSITION DEFENDANT MOTION FOR SUMMARY JUDGMENT AND
SUPPORT PLAINTIFF CROSS-MOTION
FOR SUMMARY JUDGMENT
Paul Orfanedes
D.C. Bar No. 429716
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: porfanedes@judicialwatch.org
Attorneys for Plaintiff
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
TABLE CONTENTS
Introduction ..........................................................................................................................1
II.
Factual Background .............................................................................................................2
III.
Argument .............................................................................................................................8
Exemption .............................................................................................................9
IV.
Summary Judgment Standard ..................................................................................8
Exemptions and 7(C) ..........................................................................................19
Conclusion .........................................................................................................................26
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
TABLE AUTHORITIES
Cases
Allen Central Intelligence Agency,
636 F.2d 1287 (D.C. Cir. 1980) .........................................................................................14
Ass Am. Physicians and Surgeons, Inc. Clinton,
997 F.3d 898 (D.C. Cir. 1993) ...........................................................................................23
Anderson Liberty Lobby, Inc.,
477 U.S. 242 (1986) .............................................................................................................9
Boehm Fed. Bureau Investigation,
948 Supp.2d (D.D.C. 2013) ........................................................................................14
Citizens for Responsibility and Ethics Washington U.S. Dep Justice,
746 F.3d 1082 (D.C. Cir. 2014) ................................................................................. passim
Dep the Air Force Rose,
425 U.S. 352 (1976) .............................................................................................................8
Fund for Constitutional Gov Nat Archives Records Serv.,
656 F.2d 856 (D.C. Cir. 1981) ...........................................................................................10 Grand Jury Investigation,
610 F.2d 202 (5th Cir. 1980) .............................................................................................12 Grand Jury Subpoena,
920 F.2d 235 (4th Cir. 1990) .............................................................................................12 North, F.3d 1234 (D.C. Cir. 1994) ...........................................................................................12 Madison Guaranty Sav. Loan,
334 F.3d 1119 (D.C. Cir. 2003) .....................................................................................6, Petition Craig United States,
131 F.3d (2d Cir. 1997) ................................................................................................13 Sealed Case,
192 F.3d 995 (D.C. Cir. 1999) ................................................................................... passim
Judicial Watch, Inc. U.S. Postal Service,
297 Supp.2d 252 (D.D.C. 2004) ......................................................................................9
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
Nat Archives and Records Admin Favish,
541 U.S. 157 (2004) ...........................................................................................................19
Sec. and Exchange Comm Dresser Indus., Inc.,
628 F.2d 1368 (D.C. Cir. 1980) .........................................................................................11
Sussman U.S. Marshals Serv.,
494 F.3d 1106 (D.C. Cir. 2007) .........................................................................................25
Trans-Pacific Policing Agreement U.S. Customs Serv.,
177 F.3d 1022 (D.C. Cir. 1999) .........................................................................................25
U.S. Dep Defense vs. Fed. Labor Relations Auth.,
510 U.S. 487 (1994) ...........................................................................................................24
U.S. Dep Justice Reporters Comm. for Freedom the Press,
489 U.S. 749 (1989) ...........................................................................................................24
U.S. Dep Justice Tax Analysts,
492 U.S. 136 (1989) ............................................................................................................8
U.S. Dep State Ray,
502 U.S. 164 (1991) ............................................................................................................8
Weisberg U.S. Dep Justice,
745 F.2d 1476 (D.C. Cir. 1984) ...........................................................................................9
Rules and Statutes
Fed. Civ. 56(c) .......................................................................................................................9
Fed. Crim. 6(e) .............................................................................................................. passim
Fed. Crim. 6(e)(2)(A) ........................................................................................................9,
Fed. Crim. 6(e)(2)(B) ........................................................................................................9, U.S.C. 552(b) .......................................................................................................................8, U.S.C. 552(b)(7)(C) .................................................................................................................19 U.S.C. 591 ................................................................................................................................9
iii
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page U.S.C. 594(h) ...........................................................................................................................4 U.S.C. 594(h)(1) .....................................................................................................................3 U.S.C. 594(h)(2) .....................................................................................................................4 U.S.C. 594(k)(1) ...................................................................................................................10 U.S.C. 599 ..............................................................................................................................10
Miscellaneous
Barns, Steve, Court Told Draft Indictment That Included the First Lady,
New York Times (March 19, 1999) ......................................................................................6
Gormley, Ken, The Death American Virtue: Clinton vs. Starr
(Broadway Books 2011) ..................................................................................................6,
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
Plaintiff Judicial Watch, Inc. Judicial Watch counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, respectfully submits this memorandum points and
authorities opposition Defendant National Archives and Records Administration motion
for summary judgment and support Plaintiff cross-motion for summary judgment.
MEMORANDUM POINTS AND AUTHORITIES
Introduction. issue this Freedom Information Act FOIA lawsuit are draft indictments
former First Lady, former U.S. Senator, former U.S. Secretary State, and current U.S.
presidential candidate Hillary Rodham Clinton. The indictments were prepared Deputy
Independent Counsel Hickman Ewing, Jr. the U.S. Office the Independent Counsel OIC
between 1996 and 1998 and concern alleged false statements federal investigators and the
withholding evidence Mrs. Clinton while she was First Lady the United States. The
draft indictments have been the possession, custody, and control Defendant National
Archives and Records Administration the Archives since March 2004.
Judicial Watch requested the draft indictments March 2015, but the Archives refused produce them, purportedly protect grand jury secrecy and Mrs. Clinton privacy interests.
There dispute about the scope the Archives search. The only question before the Court whether the Archives has satisfied its burden proving that FOIA Exemptions and 7(C)
apply. Because enormous amount information about the independent counsel
investigations into Mrs. Clinton conduct first lady, including grand jury information, has
already been published official reports and other government records, there grand jury
secrecy protect. For this same reason, Mrs. Clinton has privacy interest keeping the draft
indictments secret. minimum, the Archives has not demonstrated that the indictments
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Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
contain any grand jury other information not already the public domain such that the
agency claimed exemptions apply. For these and the other reasons set forth below, the
Archives motion for summary judgment should denied, and summary judgment and order
releasing the draft indictments should entered Judicial Watch favor.
II.
Factual Background. January 20, 1994, U.S. Attorney General Janet Reno appointed Robert Fiske, Jr.
independent counsel investigate allegations criminal activity connection with defunct
Arkansas thrift institution, the Madison Guaranty Savings Loan Association Madison
Guaranty See Plaintiff Statement Undisputed Material Facts Support Cross-Motion
for Summary Judgment Plf Stmt. Facts para. Also among the matters Fiske was
charged with investigating were Arkansas real estate venture, known the Whitewater
Development Company, Inc., which then-Governor William Jefferson Clinton and Mrs.
Clinton and Madison Guaranty owners Jim and Susan McDougal were partners, and
investment company, Capital Management Services, owned Arkansas municipal court judge
David Hale.1 Id. para. Attorney General Reno defined Fiske jurisdiction follows:
(a)
The Independent Counsel: Madison Guaranty Savings Loan
Association shall have jurisdiction and authority investigate the
maximum extent authorized part 600 this chapter whether any
individuals entities have committed violation any federal criminal civil law relating any way President William Jefferson Clintons
Mrs. Hillary Rodham Clinton relationship with:
(1)
(2)
(3)
(b)
Madison Guaranty Saving Loan Association;
Whitewater Development Corporation;
Capital Management Services.
The Independent Counsel: Madison Guaranty Savings Loan
Association shall have jurisdiction and authority investigate other
allegations evidence violation any federal criminal civil law
The matters under investigation were commonly referred Whitewater. Plf Stmt. Facts para.
-2-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
any person entity developed during the Independent Counsels
investigation referred above, and connected with arising out that
investigation.
(c)
The Independent Counsel: Madison Guaranty Savings Loan
Association shall have jurisdiction and authority investigate any
violation section 1826 title the U.S. Code, any obstruction
the due administration justice, any material false testimony
statement violation federal law, connection with any investigation the matters described paragraph (a) (b) the this section.
(d)
The Independent Counsel: Madison Guaranty Savings Loan
Association shall have jurisdiction and authority seek indictments and prosecute, bring civil actions against, any person entities
involved any the matters referred paragraph (a), (b), (c)
this section who are reasonably believed have committed violation
any federal criminal civil law arising out such matters, including
persons entities who have engaged unlawful conspiracy who
have aided abetted any federal offense.
Id. para. The scope the independent counsel jurisdiction and authority was later
expanded include investigations into firings the White House Travel Office, the Death
Deputy White House Counsel Vincent Foster, Jr., the White House FBI Files controversy,
and the Monica Lewinsky matter. Id. para. August 1994, Fiske was replaced
independent counsel Kenneth Starr. Id. para. The independent counsel
investigations are among the most controversial, high profile, and politically charged criminal
investigations U.S. history and led directly President Clinton 1998 impeachment. law, the independent counsel was required issue final reports detailing its work and
its findings. See U.S.C. 594(h)(1). least five final reports ultimately were prepared
the independent counsel. Plf Stmt. Facts para. They are:
(1)
Final Report the Independent Counsel, Madison Guaranty Savings
and Loan Association (In Anthony Marceca) (published March 16,
2000);
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Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
(2)
Final Report the Independent Counsel, Madison Guaranty Savings
and Loan Association (In Bernard Nussbaum) (published March 16,
2000);
(3)
Final Report the Independent Counsel, Madison Guaranty Savings
and Loan Association (In William David Watkins and Hillary
Rodham Clinton) (published June 22, 2000);
(4)
Final Report the Independent Counsel, Madison Guaranty Savings
and Loan Association (published January 2001) January 2001 Final
Report and
(5)
Final Report the Independent Counsel, Madison Guaranty Savings
and Loan Association (Regarding Monica Lewinsky and Others)
(published March 2002).
Id. Each report contains enormous quantities investigative materials, including grand jury
testimony. Id. para. Each report also was approved for publication the U.S. Court
Appeals for the District Columbia Circuit D.C. Circuit under Section 594(h) Title 28,
and publicly available the U.S. Government Publishing Office website.2 Id. para.
The January 2001 Final Report contains 87-page chapter Chapter detailing the
independent counsel investigation into Mrs. Clinton representation Madison Guaranty
while attorney the Rose Law Firm Little Rock, Arkansas. Plf Stmt. Facts para.
10. According the introduction Chapter Mrs. Clinton represented Madison Guaranty
between April 1985 and July 1986, time when the institution was severe financial trouble
and when insiders committed numerous criminal and other fraudulent acts. Id. para. 11.
Several individuals were ultimately convicted pleaded guilty federal crimes for their
roles connection [with] those transactions. Id. para. 12. Mrs. Clinton represented
Madison Guaranty regard some the fraudulent transactions, and Madison Guaranty
Section 594(h) not only authorized the D.C. Circuit order the reports made public, but also authorized
the Court make such orders are appropriate protect the rights the individuals named [the] report.
U.S.C. 594(h)(2). Given that the D.C. Circuit chose make the reports public, fair conclude that already
weighed the privacy interests stake and ruled favor disclosure.
-4-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
insiders used and misused her legal services thwart federal examiners. Id. para. 13. The
introduction continues:
When Governor Clinton ran for president 1992, Mrs. Clinton representation Madison Guaranty, including how the representation had come about, became
matters public inquiry. that time, Madison Guaranty had failed, failure
that ultimately cost the American tax payers about $73 million. Mrs. Clinton and
the Clinton campaign made public statements regarding her representation that
minimized her role.
Id. para. 14.
After 1993, the conduct insiders Madison Guaranty and the Rose Law Firm
became the subject multiple federal investigations. Plf Stmt. Facts para. 15. The
Resolution Trust Corporation RTC investigated whether insiders had committed criminal
acts, and also examined whether the agency had viable civil claims against any insiders
professionals who had represented Madison Guaranty, including the Rose Law Firm. Id.
para. 16. Also, the [Federal Deposit Insurance Corporation] and the RTC investigated whether
Rose attorneys had concealed potential conflicts interest from the agencies. Id. para. 17.
The FBI and the United States Department Justice also conducted criminal investigations
the conduct the Madison Guaranty insiders and others, including Rose attorneys, who had
been associated with the institution. Id. para. 18. Beginning 1994, those investigations
were continued [the independent counsel]. Id. para. 19. the course the federal investigations, Mrs. Clinton made numerous statements and
gave sworn testimony regarding her representation Madison Guaranty. Plf Stmt. Facts
para. 20. The independent counsel investigated whether Mrs. Clinton had committed perjury,
made false statements, obstructed justice during those investigations. Id. para. 21. While
the independent counsel found some the First Lady statements were factually inaccurate,
-5-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
concluded that there was insufficient evidence prove beyond reasonable doubt that Mrs.
Clinton had committed any federal criminal offense. Id. para. 22.
Ultimately, the independent counsel investigations resulted indictments and
least convictions. Madison Guaranty Sav. Loan, 334 F.3d 1119, 1122 (D.C. Cir.
2003). Among those convicted were the First Lady former partner the Rose Law Firm and
President Clinton former associate attorney general, Webster Hubbell. Also convicted was
President Clinton successor governor Arkansas, Jim Guy Tucker. Others include the
President and Mrs. Clinton business partners, Jim and Susan McDougal.
Hickman Ewing, Jr. was deputy independent counsel the OIC. According
testimony Ewing gave Susan McDougal 1999 criminal contempt and obstruction justice
trial, drafted indictment Mrs. Clinton 1996 regarding allegedly false statements the
First Lady had made federal investigators and the alleged withholding evidence the First
Lady. See, e.g., Steve Barnes, Court Told Draft Indictment That Included the First Lady,
New York Times (March 19, 1999). Ewing apparently updated and revised the indictment over
time, and, April 27, 1998 meeting OIC, laid out the case for multi-count indictment
against the First Lady:
Each the lawyers the room was flipping through black binder
approximately four inches thick, marked bold letters the exterior: HRC
Meeting, referring Hillary Rodham Clinton. Inside that binder was memo
dated April 22, 1998, directed All OIC attorneys from the HRC Team,
summarizing the criminal case against Mrs. Clinton. Following this were four
documents for their review: memo, dated April 10, that spelled out the Theory the Case overview the evidence against Mrs. Clinton; draft indictment
against Mrs. Clinton and her alleged co-conspirator [former Associate U.S.
Attorney General Webster Hubbell]; and draft order proof that listed all
the witnesses Starr prosecutors would call against the First Lady criminal
trial.
Although nobody outside the room would ever know the details the proposed
indictment against the First Lady, was captioned United States America
-6-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
Hillary Rodham Clinton and Webster Lee Hubbell. was filed the
United States District Court for the Eastern District Arkansas.
Gormley, Ken, The Death American Virtue: Clinton vs. Starr (Broadway Books 2011) 478. June 2014, Judicial Watch submitted FOIA request the Archives seeking access
the binder referenced Gormley book. Plf Stmt. Facts para. 26. The Archives
ultimately produced 246 pages the records response the request. Id. para. 27. Among
the records produced Judicial Watch the Archives was 206-page memorandum, dated
April 22, 1998, All OIC Attorneys, from the HRC Team and bearing the subject line
Summary Evidence: Hillary Rodham Clinton and Webb Hubbell. Id. para. 28. The 206page summary particularly detailed and contains countless citations and quotations from
witness interviews, deposition testimony, documentary evidence, and grand jury testimony. Id. paras. 29-31. largely unredacted and available the public, along with the other
records produced the Archives, Judicial Watch website.3 Id. para. 32. March 2015, Judicial Watch submitted FOIA request the Archives seeking
access Ewing draft indictments. Plf Stmt. Facts 34; Declaration Martha Wagner
Murphy Murphy Decl. para. and Exhibit thereto. Specifically, Judicial Watch
requested:
All versions indictments against Hillary Rodham Clinton, including but not
limited Versions and box 2250 the Hickman Ewing Attorney Files,
the HRC/___ Draft Indictment box 2256 the Hickman Ewing Attorney
Files, well any and all versions written Deputy Independent Counsel
Hickman Ewing, Jr. prior September 1996.
Id. paras. 34-35; Murphy Decl. para. and Exhibit thereto. The Archives claims have
located different draft indictments, one draft indictment without caption listing overt
Judicial Watch did not pursue administrative appeal the Archives redactions the memo for reasons
unrelated whether Judicial Watch believes those redactions have merit. Plf Stmt. Facts para. 33.
-7-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
acts, and one record characterized scraps draft indictment with caption. Murphy
Decl. Exhibit Multiple copies some drafts were located. Id. Exhibit Document
Nos. 1-4, 7-3, and 12-13. One draft only pages long. Id. Exhibit Document Nos. 1213. Another pages long. Id. Exhibit Document No. 19. Obviously, some drafts are
more detailed and contain more information than others.
According the Archives, the responsive records were located boxes identified
containing Ewings files. Murphy Decl. paras. and 21. result, there dispute that
the draft indictments were prepared Ewing and concern the same subject matters the April
1998 memos obtained from the Archives through FOIA and the January 2001 Final Report.
III.
Argument.
Summary Judgment Standard.
FOIA generally requires complete disclosure requested agency information unless the
information falls into one FOIA nine clearly delineated exemptions. U.S.C. 552(b); see
also Dep the Air Force Rose, 425 U.S. 352, 360-61 (1976) (discussing the history and
purpose FOIA and the structure FOIA exemptions). light FOIA goal promoting
agency disclosure, the exemptions are construed narrowly. U.S. Department Justice
Tax Analysts, 492 U.S. 136, 150-151 (1989). [T]he strong presumption favor disclosure
places the burden the agency justify the withholding any requested documents. U.S.
Department State Ray, 502 U.S. 164, 173 (1991).
Several the drafts apparently are accompanied memoranda, fax cover pages, and notes. Murphy
Decl. Exhibit Document Nos. 1-4, 14, and 16. The Archives has not differentiated between allegedly
exempt material the draft indictments and allegedly exempt material the memoranda, fax cover pages, and
notes. Because Judicial Watch, Inc. only requested the draft indictments, the drafts should not withheld from
Judicial Watch the only basis for withholding particular draft allegedly exempt material one these other,
non-responsive records.
-8-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page FOIA litigation, all litigation, summary judgment appropriate only when the
pleadings and declarations demonstrate that there genuine issue material fact and that the
moving party entitled judgment matter law. Anderson Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Fed. Civ. 56(c). FOIA cases, agency decisions withhold
disclose information under FOIA are reviewed novo. Judicial Watch, Inc. U.S. Postal
Service, 297 Supp. 252, 256 (D.D.C. 2004). reviewing motion for summary judgment
under FOIA, the court must view the facts the light most favorable the plaintiff. Weisberg U.S. Dep Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
Exemption
Judicial Watch does not dispute that Federal Rule Criminal Procedure 6(e)
statute for purposes Exemption The Archives invocation Rule 6(e) justify
withholding the draft indictments under Exemption nonetheless lacks merit. its face, Rule 6(e) does not apply the Archives. The rule states, obligation
secrecy may imposed any person except accordance with Rule 6(e)(2)(B). Fed.
Crim. 6(e)(2)(A). then specifies the seven categories persons bound the rule secrecy
provision:
Unless these rules provide otherwise, the following persons must not disclose
matter occurring before the grand jury: (i) grand juror; (ii) interpreter; (iii)
court reporter; (iv) operator recording device; (v) person who transcribes
recorded testimony (vi) attorney for the government; (vii) person
whom disclosure made under Rule 6(e)(3)(A)(ii) (iii).
Fed. Crim. 6(e)(2)(B). The Archives does not fall anywhere within these seven categories persons, and other provision the Federal Rules Criminal Procedure compels the
Archives withhold records about matter occurring before grand jury. Although the
Ethics Government Act 1978, amended, U.S.C. 591 seq. (2000), directed that
-9-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
independent counsel records transferred the Archives after his her investigation had
concluded, the statute did not extend Rule 6(e) secrecy obligations the Archives.5 only
directed independent counsel clearly identify records subject Rule 6(e). U.S.C.
594(k)(1). find implied obligation secrecy under Section 594(k)(1) based this
direction the independent counsel, not the Archives, would run afoul Rule 6(e) express
admonition that [n]o obligation secrecy may imposed any person except accordance
with Rule 6(e)(2)(B). Fed. Crim. 6(e)(2)(A).
The Archives does not even attempt argue that falls under Rule 6(e) secrecy
provision. With the exception Fund for Constitutional Gov Nat Archives Records
Serv., 656 F.2d 856 (D.C. Cir. 1981), none the authorities cited the Archives concerns
records the possession, custody, control the Archives. They concern records the
possession, custody, control the U.S. Department Justice, the Executive Office for
United States Attorneys, and the Federal Bureau Investigation, all which indisputably fall
under Rule 6(e). The records issue Fund for Constitutional Gov were the possession,
custody, and control the Watergate Special Prosecution Force,6 not the Archives, when the
FOIA request issue was made for their production. 656 F.2d 860. Unlike this case, the
request Fund for Constitutional Gov was made the prosecutors, not the Archives. Id.
The requested records were transferred the Archives during the course the litigation, well
after the requester filed suit seeking compel their production. Id. has bearing this
case.
The law expired, pursuant its own terms, 1999. See U.S.C. 599.
The appointment the special prosecutors Fund for Constitutional Gov predated the Ethics
Government Act, which had not yet been enacted when the FOIA request issue that case was made.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
Even assuming Rule 6(e) applies the Archives, the rule protections are limited
matters occurring before the grand jury. The D.C. Circuit has cautioned against the
problematic nature defining this term broadly, especially, the Archives asserts here, with
respect claims about the strategy and direction grand jury investigation. Sealed
Case, 192 F.3d 995, 1001 (D.C. Cir. 1999). issue Sealed Case was order show
cause why the OIC should not held contempt for allegedly violating Rule 6(e). Prosecutors OIC allegedly told the New York Times that they were considering asking grand jury
indict President Clinton perjury and obstruction justice charges following his U.S. Senate
impeachment trial. The prosecutors also allegedly told the newspaper that the charges they were
considering arose from what they believed were false statements the President his January
1998 deposition Ms. Paula Jones civil lawsuit and his August 1998 grand jury appearance.
The district court issued the show cause order, and the prosecutors appealed. reversing the order, the Court Sealed Case noted, [W]e have never read Rule
6(e) require that veil secrecy drawn over all matters occurring the world that
happen investigated grand jury. Sealed Case, 192 F.3d 1001-02 (quoting
Sec. and Exchange Comm Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en
banc)). Indeed, have said that the disclosure information coincidentally before the grand
jury [which can] revealed such manner that its revelation would not elucidate the inner
workings the grand jury not prohibited. Id. 1002 (internal quotations and citations
omitted.). The Court emphasized the need differentiate between prosecutors investigations
and grand juries investigations, distinction the Court characterized being the utmost
significance. Id. also differentiated between information uncovered made available
prosecutors and grand jury information. Id. Information produced criminal investigations
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
paralleling grand jury investigations does not constitute matters occurring before the grand jury the parallel investigation was truly independent the grand jury proceedings. Id. (quoting Grand Jury Subpoena, 920 F.2d 235, 242 (4th Cir. 1990)). The disclosure information
obtained from source independent the grand jury proceedings, such prior government
investigation, does not violate Rule 6(e). Id. (quoting Grand Jury Investigation, 610 F.2d
202, 217 (5th Cir. 1980)). Sealed Case also differentiated between prosecutors deliberations and matters
actually occurring before grand jury: [I]nternal deliberations prosecutors that not
directly reveal grand jury proceedings are not Rule 6(e) material. Sealed Case, 192 F.3d 1003. may thought that when such deliberations include discussion whether
indictment may sought, whether particular individual potentially criminally liable, the
deliberations have crossed into the realm Rule 6(e) material. Id. This ignores, however, the
requirement that the matter occur before the grand jury. Id. Where the reported deliberations not reveal that indictment has been sought will sought, ordinarily they will not reveal
anything definite enough come within the scope Rule 6(e). Id. [B]are statements that
some assistant prosecutors the OIC wish seek indictment not implicate the grand jury;
the prosecutors may not even basing their opinion grand jury information presented
grand jury. Id. 1004.
The Court Sealed Case also addressed treatment Rule 6(e) material that has
become public. There must come time when information sufficiently widely known
that has lost its character Rule 6(e) material. Sealed Case, 192 F.3d 1004 (quoting North, F.3d 1234, 1245 (D.C. Cir. 1994)). The purpose Rule 6(e) preserve
secrecy. Information widely known not secret. Id. The extent which the grand jury
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
material particular case has been made public clearly relevant because even partial
previous disclosure often undercuts many the reasons for secrecy. Id. (quoting Petition Craig United States, 131 F.3d 99, 107 (2d Cir. 1997)). Moreover, consideration
whether material presumptively within the scope Rule 6(e) has lost its secrecy should
considered the prima facie stage. Id. 1004, n.12.
Ultimately, the Court Sealed Case determined that the independent counsel
deliberations about whether seek indictment President Clinton for perjury and
obstruction justice arising from his allegedly false deposition and grand jury testimony were
not protected Rule 6(e). also found the fact that the grand jury was investigating President
Clinton and the fact that the President had appeared before the grand jury were widely known
that Rule 6(e) did not apply. The Court even took judicial notice these well-known facts. Sealed Case, 192 F.2d 1004-05.
Plainly, Sealed Case requires the Archives demonstrate that disclosure the
draft indictments will reveal non-public facts known prosecutors only because the grand
jury investigation, not because prosecutors own investigations others investigations. Sealed Case, 192 F.3d 1002. The Archives also must demonstrate that disclosure will
reveal non-public matters that actually occurred were likely occur before the grand jury.
Id.at 1002-03. With respect whether matter was likely occur, Sealed Case makes
clear that the likelihood must substantial, such witness whose testimony was expected,
not something prosecutors were merely considering. Id. 1002 sure, have
recognized that Rule 6(e) would easily evaded prosecutor could with impunity discuss
with the press testimony about presented grand jury, long had not yet occurred.
Accordingly, have read Rule 6(e) cover matters likely occur. The matter must
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
clearly anticipated. Id. 1003. The mere disclosure internal deliberations prosecutors
about whether seek indictment, what charges seek indictment, and what
indictment might look like, without more, not prohibited Rule 6(e).7
The single declaration submitted the Archives support its claims exemption
falls far short satisfying the agency burden. The declaration, signed Martha Wagner
Murphy, Chief the Special Access and FOIA Branch the Archives, paints with far too broad brush.8 Only one paragraph Ms. Murphy declaration even addresses the substance
the Archives Rule 6(e) claim (Murphy Decl. para. 25), and the declaration whole makes attempt identify the basis Ms. Murphy purported knowledge about the grand jury
investigation that ended twenty years ago such that she competent testify about its inner
workings direction. Rather than demonstrating why Rule 6(e) applies, Ms. Murphy
declaration conclusory and merely repeats language taken out context from case law
applying Rule 6(e).9 Compare Murphy Decl. para. with Citizens for Responsibility and
Ethics Washington U.S. Dep Justice, 746 F.3 1082, 1100 (D.C. Cir. 2014) CREW
Allen Central Intelligence Agency, 636 F.2d 1287, 1288 (D.C. Cir. 1980) Where the agency
affidavits merely parrot the language the statute and are drawn conclusory terms, the court
responsibility conduct novo review frustrated. also ignores the fact that
Boehm Fed. Bureau Investigation, 948 Supp.2d (D.D.C. 2013) inapposite. does not address
whether the Archives bound Rule 6(e) secrecy provision. also does not differentiate between different
sources information different investigations and matters actually occurring before the grand jury.
addition, although the Court Boehm addressed the distinction between public and non-public information, the
plaintiff Boehm failed supply any evidence demonstrating that the information being withheld had been made
public. 948 Supp.2d 27. The Court Boehm also only mentioned the draft indictment passing and did not
address analyze separately. Id. and 27.
The declaration asserts that the boxes containing the draft indictments each bore note indicating that the
contents include material subject Rule 6(e). Murphy Decl. para. 20. Ms. Murphy does not claim that all the
records the boxes contained grand jury material state how she determined what was was not grand jury
material subject Rule 6(e).
The declaration ignores the far more limiting language Sealed Case.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
enormous amount grand jury material was made public the independent counsel multiple
reports and elsewhere.
More specifically, Ms. Murphy declares that [a]ll the responsive records are directly
related the Independent Counsel consideration presenting indictment grand jury.
Murphy Decl. para. 25. She does not assert that the drafts were ever presented the grand
jury they obviously were not and she does not claim that presentment any particular draft
was likely occur clearly anticipated. She does not describe any specific matter
occurring before the grand jury. Sealed Case, merely deliberating whether
seek indictment from grand jury insufficient implicate Rule 6(e). Her bald claim that
all responsive records relate consideration whether seek indictment the First Lady
fails satisfy Rule 6(e).
The same true for Ms. Murphy assertion about revealing persons intended
subpoenaed. She does not claim that prosecutors were likely call any such persons that
their appearances before the grand jury were clearly anticipated. Likewise, her broad brush
claims that the materials reflect and reveal the inner workings and direction the grand
jury and that their [d]isclosure would violate the secrecy the grand jury disclosing [its]
inner workings are the same type bare statements the Court found problematic
Sealed Case. Sealed Case, 192 F.3d 1001 [W]e cautioned the district court about the
problematic nature applying broad definition, especially relates the strategy
direction the investigation. They not describe anything that actually occurred was
likely occur before the grand jury.
Ms. Murphy also does not explain how she knows who the independent counsel may have intended
subpoena. Such information not typically included indictments, which renders suspect her claim that disclosure the draft indictments would reveal names individuals intended subpoenaed.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
Ms. Murphy does not even claim that disclosure any particular draft indictment would
reveal the names identifying information about persons who testified before the grand jury
identify specific records subpoenaed the grand jury. She only asserts that the material
collectively reflects names and identifying information individuals subpoenaed intended subpoenaed testify before the grand jury and information identifying specific records
subpoenaed during the grand jury process. Nowhere does she describe what she means
collectively reflect how names, identifying information, and records are collectively
reflect[ed] the material. she means that, reading all the various drafts together,
person might able piece together otherwise surmise the identity person who actually
testified before the grand jury identify document subpoenaed the grand jury, she certainly
does not say so. she means that disclosure each and every individual record will reveal such
information, she does not say that either. The declaration too vague, generalized, and
conclusory satisfy the Archive burden.
Ms. Murphy also declares that the records again collectively referring them they
reflect and quote grand jury testimony. She does not identify what she means reflect,
and, again, she does not differentiate between individual records. Nowhere does she claim that
each and every individual record, even the three-page draft indictment without caption and
the four-page scraps draft indictment with caption, quotes grand jury testimony.
Again, Ms. Murphy paints with far too broad brush satisfy the Archives burden proof. also seems highly unlikely that, the extent any particular draft quotes grand jury material
that not already public, any such quote could not redacted.
Ms. Murphy also made effort differentiate between the grand jury investigation,
the independent counsel investigations, and regulatory and congressional investigations when
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
she makes her blanket claim about the draft indictments reflecting revealing grand jury
material. The section the January 2001 Final Report concerning the independent counsel
investigation into Mrs. Clinton representation Madison Guaranty and whether the First Lady
committed perjury obstructed justice during those investigations cites, references, and quotes, some cases extensively, from many different, non-grand jury sources information,
not including numerous individual documents, gathered from various investigations. Plf Stmt. Facts paras. and 23-24. These non-grand jury sources information include:
independent counsel witness interviews;
interrogatory responses regulators;
deposition testimony;
trial testimony;
congressional testimony;
witness interviews regulators;
regulatory reports;
media reports;
television interviews; and least one book.
Id. sure, the report also cites, references, and quotes grand jury testimony, but the amount non-grand jury information gathered the independent counsel and presumably used
preparing the draft indictments enormous. Id. paras. and 23-25.
The independent counsel use and reliance the numerous non-grand jury sources
information further demonstrated the 206-page Summary Evidence prepared the
independent counsel HRC team April 1998 aid discussions about whether seek
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
indictment the First Lady. Plf Stmt. Facts paras. 28-30. The 206-page summary cites,
references, and quotes from many the same, non-grand jury sources information cited the
relevant portion the January 2001 Final Report, but also cites, references, and quotes from
great many additional sources, including many separate FBI 302s. Id. Under the
circumstances, Ms. Murphy bare assertion that disclosure the draft indictments will reveal
matter(s) occurring before the grand jury insufficient meet the Archive burden proof.
Finally, enormous amounts grand jury information about the independent counsel
investigation the First Lady have already been made public and are widely available. The
relevant section the January 2001 Final Report which, again, the D.C. Circuit approved
for publication and which readily available the Government Publishing Office website
cites to, references, quotes testimony from least grand jury appearances witnesses
between 1995 and 1998. Plf Stmt. Facts paras. 8-10 and 23-25. the D.C. Circuit has
declared, the filing reports independent counsels complete departure from the
authority United States Attorney and contrary the practice federal Grand Jury
investigations. re: Madison Guaranty Sav. Loan, 334 F.3d 1128 (internal quotations
omitted). Once published, independent counsel reports effectively eliminate grand jury secrecy.
Similarly, the 206-page Summary Evidence produced the Archives Judicial Watch
pursuant separate FOIA request also discloses even more grand jury information. Id.
paras. 28-31. Although not exhaustive count, the summary cites to, references, quotes
testimony from least grand jury appearances some witnesses between 1995 and 1998,
including witnesses not referenced the relevant section the January 2001 Final
Report.11 Id. para. 31.
Neither this total nor the total for Volume II, Part Chapter the January 2001 Final Report includes
the voluminous documentary evidence cited the Summary Evidence the report. not possible
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
There secrecy left protect. minimum, the Archives has not demonstrated
under the circumstances this case that Rule 6(e) necessary protect the secrecy any
grand jury material contained any particular draft indictment. The Archives invocation
Exemption fails.
Exemptions and 7(C).
Judicial Watch agrees with the Archives assertion that the analysis and balancing
required under Exemptions and 7(C) are sufficiently similar warrant consolidated
discussion. Murphy Decl. para. 30. Judicial Watch disagrees with the Archives assertion that
Mrs. Clinton privacy interests outweigh the public interest disclosure the draft indictment.
Exemption 7(C) exempts from disclosure records information compiled for law
enforcement purposes, but only the extent that the production such law enforcement records information could reasonably expected constitute unwarranted invasion
personal privacy. CREW, 746 F.3d 1091 (quoting U.S.C. 552(b)(7)(C)). The Court
task, then, balance the privacy interest against the public interest disclosure. Id.
(quoting Nat Archives and Records Admin. Favish, 541 U.S. 157, 171 (2004)). There
dispute that the draft indictments were compiled for law enforcement purposes, and the
Archives does not claim that any person other than Mrs. Clinton has any privacy interest the
draft indictments. The only issue that remains for purposes the Archive Exemption 7(C)
claim whether any privacy interest Mrs. Clinton might have whatever non-public
information exists the various draft indictments outweighs the public interest disclosure
the draft indictments. Exemption 7(C) analysis focuses two potential privacy interests. CREW, 746 F.3d 1091. The first individual interest avoiding the stigma having his name
discern from the summary the report whether this evidence was ever presented considered the grand jury.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
associated with criminal investigation. Id. The second the individual interest the
contents the investigative files. Id. 1092. issue CREW were FBI records
criminal investigation former U.S. House Representatives Majority Leader Tom DeLay.
The former majority leader publicly acknowledged being under investigation, abrogating any
privacy interest avoiding having his name associated with criminal investigation. Id. The
agency asserted that DeLay nonetheless had broad privacy interest the contents the FBI
records, but made attempt demonstrate that had particular privacy interest any
particular record. The D.C. Circuit rejected the agency blanket withholding all responsive
documents and remanded the case the district court, declaring that the agency must attempt make more particularized showing what documents portions thereof are exempt.
Id. 1096. also directed the district court weigh what information may withheld under
Exemption 7(C) and whether any information reasonably segregable and may disclosed.
Id.
There privacy interest protect for the same reason there grand jury secrecy protect. has long been publicly known that Mrs. Clinton was investigated the
independent counsel for allegedly making false statements federal investigators and allegedly
withholding evidence from federal investigators while she was First Lady. also publicly
known that OIC prepared draft indictments Mrs. Clinton regarding these allegations. The
Archives has made effort shield this fact. readily admits that the draft indictments exist. result, the Archives cannot establish the first the two potential privacy interests issue Exemption 7(C) analysis.
There also can dispute that enormous quantities information about the
independent counsel investigation Mrs. Clinton, including grand jury testimony and other
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
evidence, are readily available the public. The January 2001 Final Report and the 206-page
Summary Evidence Judicial Watch obtained from the Archives provide ample evidence
this indisputable fact.
Ms. Murphy declaration makes mention any this publicly available information
and instead baldly claims that, uncharged person, Mrs. Clinton maintains strong
privacy interest not having information from the files the Independent Counsel disclosed.
Murphy Decl. para. 34. Ms. Murphy does not describe, identify, quantify Mrs. Clinton
privacy interest the draft indictments other assert that strong. She also makes
effort differentiate between any the draft indictments portions thereof assert that
any these records contain information from the independent counsel files that has not
already been made public. Ms. Murphy declaration little more than the same blanket,
boilerplate claim rejected the D.C. Circuit CREW. Given the mountain investigative
materials about Mrs. Clinton that publicly available, Ms. Murphy declaration also not
credible. There has been showing whatsoever any meaningful interest the privacy
side the scales. the public interest side the scales, the Archives claim that the only recognized
interest that which sheds light the operations and activities the Independent Counsel
incorrect. Murphy Decl. para. (emphasis added). Judicial Watch agrees with the Archives
that disclosure the draft indictments will shed light the operations and activities the
Independent Counsel. Judicial Watch disagrees that shedding light the operations and
activities the independent counsel the only relevant public interest.
Again, the D.C. Circuit decision CREW instructive. Like this case, the
government CREW sought minimize the public interest information about criminal
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
investigation prominent government official former House Majority Leader DeLay. The
D.C. Circuit rejected the government effort, declaring that there considerably more than
nothing the public interest side the scale. CREW, 746 F.3d 1093. Matters
substantive law enforcement policy are properly the subject public concern, and disclosure the requested records would likely reveal great deal about law enforcement policy. Id.
(internal quotations omitted). Disclosure the records would likely reveal much about the
diligence the FBI investigation and the DOJ exercise its prosecutorial discretion:
whether the government had the evidence but nevertheless pulled its punches. Id. Indeed,
have repeatedly recognized public interest the manner which DOJ carries out substantive
law enforcement policy (whether not that interest outweighs any privacy interest stake
given case). Id. That the investigation implicated public official prominent the former
Majority Leader the House Representatives further raises the stake. Id. 1094. Like
CREW, the Archives tries minimize the public interest the independent counsel
investigation Mrs. Clinton, dismissing that interest mere scintilla. Murphy Decl.
para. 35. Also like CREW, that attempt should rejected.
The public interest the operations and activities OIC under Independent Counsel
Starr, who led one the most controversial, high profile, and politically-charged criminal
investigations U.S. history and which led directly President Clinton 1998 impeachment,
remains substantial nearly two decades later. simple google search for the words Starr
Report yields 13,200,000 results. Plf Stmt. Facts para. 36. This public interest only
compounded the fact that OIC was investigating Mrs. Clinton, sitting first lady, for
allegedly trying cover her role significant financial and other wrongdoing Madison
Guaranty, the failure which cost taxpayers $73 million and ultimately led the conviction
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page assistant U.S. attorney general, sitting governor, the President and Mrs. Clinton business
partners, and least other persons. See, e.g., id. para. 14. Disclosure the draft
indictments undoubtedly will shed further light the independent counsel investigation
Mrs. Clinton, just disclosure the records issue CREW shed light the government
investigation Mr. DeLay. The public interest the independent counsel investigation easily
outweighs any remaining privacy interests that Mrs. Clinton might have either the draft
indictments themselves information the draft indictments that has not already been made
public.
But public interest disclosure the draft indictments goes far beyond interest the
operations and activities the independent counsel. Again, the time Mrs. Clinton was being
investigated the independent counsel for making false statements and withholding evidence
from federal investigators, she was First Lady the United States. The alleged false statements
and withholding evidence also allegedly occurred while Mrs. Clinton was First Lady the
United States. The D.C. Circuit has found that, First Lady the United States, Mrs. Clinton
was officer the United States, least for purposes the Federal Advisory Committee Act.
Ass Am. Physicians and Surgeons, Inc. Clinton, 997 F.3d 898, 911 (D.C. Cir. 1993).
After serving First Lady from 1993 2001, Mrs. Clinton went serve United States
Senator from the State New York from 2001-09. From 2009 2013, she served U.S.
Secretary State. She now seeks the nation highest office and the Democratic Party
presumptive nominee for that position. Obviously, making false statements and withholding
evidence from federal investigators bears Mrs. Clinton honesty, credibility, and
trustworthiness, not only First Lady, but also her subsequent government service U.S.
Senator and U.S. Secretary State and for the position she currently seeks. Disclosure the
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
draft indictments will shed light Mrs. Clinton decades federal official, her fitness for
the office she currently seeks, and what the government to. The Archives assertions the contrary are neither serious nor credible.
The Archives dismissive characterization the public interest the draft indictments
they relate Mrs. Clinton being nothing more than mere scintilla also neither serious
nor credible. Murphy Decl. para. 35. Ms. Murphy declaration fails disclose her
competence opine public interest the draft indictments the magnitude that interest.
She offers basis for her opinion and metric which judge the public interest the
draft indictments. google search for Hillary Clinton draft indictment yields 547,000 results.
Plf Stmt. Facts para. 37. Judicial Watch efforts gain access the draft indictments
have been the subject news reports CNN, Politico, The New York Post, Investor Business
Daily, The National Review, and even the United Kingdom Daily Mail. Id. para. 38.
Judicial Watch acknowledges that, when weighing whether disclosure the public interest, D.C. Circuit
case law often differentiates between what record will reveal about agency performance its statutory duties
and what that same record will reveal about the actions particular individual. See, e.g., CREW, 746 F.3d
1093. Judicial Watch submits that, making that distinction, the D.C. Circuit has relied U.S. Supreme Court
precedent which the underlying records concerned the actions private citizens, not government officials. These
cases include, most notably, U.S. Dep Justice Reporters Comm. for Freedom the Press, 489 U.S. 749
(1989), where the records issue were rap sheets containing the criminal histories various private individuals. addressing the public interest disclosure that case, the Court noted that FOIA purpose not fostered disclosure information about private citizens that accumulated various
government files but that reveals little nothing about agency own conduct. this case -and presumably the typical case which one private citizen seeking information about
another the requester does not intend discover anything about the conduct the agency that
has possession the requested records. Indeed, response this request would not shed any light the conduct any Government agency official.
Id. 773; cf. U.S. Dep Defense vs. Fed. Labor Relations Auth., 510 U.S. 487 (1994) (finding that disclosure
home addresses agency employees bargaining units represented unions would not shed light agency
action). The same cannot said for this case. Mrs. Clinton was not private citizen the time she was being
investigated the independent counsel. She has since gone other, higher federal offices and now seeks the
nation highest office. Disclosure the draft indictments will shed light Mrs. Clinton tenure First Lady
and, result, her subsequent tenure U.S. senator and U.S. secretary state. also will shed light her
suitability serve president the United States. will help citizens know not only what their government
has been to, but what may should they select Mrs. Clinton their president. The cases holding
that the only relevant public interest shedding light how agencies perform their statutory duties not
address this highly unique factual situation. They are inapposite.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
Clearly, public interest the draft indictments substantial. Again, far outweighs any
remaining, unidentified privacy interest that Mrs. Clinton may have keeping the records secret.
The Archives Exemption and 7(C) claims have merit.
Segregability. agency must disclose [a]ny reasonably segregable portion otherwise exempt
record. U.S.C. 552(b). district court must make specific finding segregability
regarding the documents withheld. Sussman U.S. Marshals Serv., 494 F.3d 1106, 1117
(D.C. Cir. 2007). When, here, records are withheld their entirety, determination must
made whether any portion those records could have been segregated and released.
Trans-Pacific Policing Agreement U.S. Customs Serv., 177 F.3d 1022, 1027-28 (D.C. Cir.
1999). segregability analysis was undertaken here. The Archives does not claim have
even tried undertake segregability analysis. Should the Archives claims exemption
credited, summary judgment still cannot entered the Archives favor until segregability
analysis has been undertaken and any reasonably segregable portion each responsive record
has been disclosed. Given that the responsive records are draft indictments and are likely
paragraph form, any particular paragraph containing non-public material about matter
occurring before the grand jury which Mrs. Clinton has some identifiable privacy interest
can easily redacted, allowing the remainder the record produced. CREW, 746 F.3d
1096.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
IV.
Conclusion.
For the foregoing reasons, the Archives motion for summary judgment should denied,
and summary judgment should entered Judicial Watch favor ordering the release the
draft indictments Judicial Watch.
Dated: March 11, 2016
Respectfully submitted,
JUDICIAL WATCH, INC.
/s/ Paul Orfanedes
Paul Orfanedes
D.C. Bar No. 429716
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: porfanedes@judicialwatch.org
Attorneys for Plaintiff
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
____________________________________)
Civil Action No. 15-cv-1740 (RBW)
PLAINTIFF RESPONSE DEFENDANT STATEMENT MATERIAL
FACTS NOT DISPUTE AND STATEMENT UNDISPUTED
MATERIAL FACTS SUPPORT CROSS-MOTION
FOR SUMMARY JUDGMENT
Plaintiff Judicial Watch, Inc., counsel and pursuant Local Civil Rule 7.1(h),
respectfully submits this response Defendant statement material facts not dispute and
statement undisputed material facts support Plaintiff cross-motion for summary
judgment:
Plaintiff Response Defendant Statement Material Facts Not
Dispute.
NARA maintains custody the records the independent counsels who served
under Title the Ethics Government Act 1978. Decl. Martha Wagner Murphy 15.
Plaintiff Response: Undisputed.
The records maintained NARA include the records Kenneth Starr and
his successors. Id. 18.
Plaintiff Response: Undisputed.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
Mr. Starr served independent counsel under Title from 1994 until 1999;
his successors served until 2004. Id.
Plaintiff Response: Undisputed.
Included among the records Mr. Starr and his successors are drafts
proposed indictment Hillary Rodham Clinton. Id. 23.
Plaintiff Response: Undisputed.
The records Mr. Starr and his successors fill approximately 3149 cubic feet
space NARA. Id. 19.
Plaintiff Response: Plaintiff objects the facts asserted Defendant this
paragraph because they are not material. addition, Plaintiff unable state whether
disputes does not dispute the facts asserted Defendant this paragraph because
Defendant factual assertions concern the internal operations Defendant are otherwise
uniquely known Defendant. See, e.g., Judicial Watch, Inc. Food and Drug Admin., 449
F.3d 141, 145-46 (D.C. Cir. 2006) (noting that the asymmetrical distribution knowledge
between the agency and the requestor FOIA litigation distorts the traditional adversary nature our legal system form dispute resolution. index those records was prepared the second and last Mr. Starr
successors and her staff connection with the transfer the records NARA. Id.
Plaintiff Response: Plaintiff does not dispute that the index referenced this
paragraph exists. Because the identity the individual(s) who prepared the index concern the
internal operations the OIC are otherwise uniquely known OIC Defendant, Plaintiff
unable state whether disputes does not dispute who prepared the index. See, e.g., Judicial
Watch, Inc., 449 F.3d 145-46.
-2-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page copy that index was provided plaintiff, Judicial Watch, NARA May
2015. Id. n.7.
Plaintiff Response: Undisputed. letter dated March 2015, plaintiff submitted request NARA under the
Freedom Information Act (FOIA), U.S.C. 552, for the following records:
All versions indictments against Hillary Rodham Clinton, including, but not
limited to, Versions and box 2250 the Hickman Ewing Attorney Files,
the HRC/__Draft Indictment box 2256 the Hickman Ewing Attorney Files, well any all versions written Deputy Independent Counsel Hickman
Ewing, Jr. prior September 1996.
Id.
Plaintiff Response: Undisputed.
Hickman Ewing was lawyer who worked Kenneth Starr deputy Little
Rock. Id. n.2.
Plaintiff Response: Undisputed.
10.
Plaintiff said its request that [t]he records question are located the
material submitted [NARA] the Office Independent Counsel Re: Madison Guaranty
Savings Loan Association, also known the records Starr. Id.
Plaintiff Response: Undisputed.
11.
NARA responded plaintiff request locating the two boxes the records
Mr. Starr and his successors which the request referred, Boxes 2250 and 2256. Id. 20-21.
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
-3-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
12.
Both boxes bear the name, Hickman Ewing Attorney Work Product both boxes
bear the heading HRC, the initials Hillary Rodham Clinton; and both boxes state their
face that their contents include material subject Rule 6(e) the Federal Rules Criminal
Procedure. Id. 20.
Plaintiff Response: Plaintiff objects the facts asserted Defendant this
paragraph because they are not material. addition, Plaintiff unable state whether
disputes does not dispute the facts asserted Defendant this paragraph because
Defendant factual assertions concern the internal operations Defendant are otherwise
uniquely known Defendant. See, e.g., Judicial Watch, Inc., 449 F.3d 145-46.
13.
Box 2250 contains folder labeled Draft Indictment. Id.
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
14.
Box 2256 contains folder labelled Hillary Rodham Clinton/Webster Hubbell
Draft Indictment. Id.
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
15.
Multiple drafts the proposed indictment Mrs. Clinton were located
NARA within these folders. See id. Ex.
-4-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
16.
NARA also responded plaintiff FOIA request search[ing] the Box
Contents and Subject fields [of the index the records Mr. Starr and his successors]
identify any other folders that could contain Indictment and Hillary Rodham Clinton
Hillary Clinton HRC. Id. 21.
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
17.
This search did not locate any other responsive folders. Id.
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
18.
Each the drafts the proposed indictment that NARA located marked its
face draft; denominated draft accompanying cover memos; shows through its
incompleteness that draft. Id. 23.
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
-5-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
19.
Some the drafts contain marginalia annotations; some are identical
duplicates each other; some are non-identical duplicates; some are accompanied cover
memos; some are accompanied handwritten notes separate pieces paper; and some are
accompanied fax cover sheets. Id.
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
20.
One the drafts consists merely scraps draft indictment. Id.
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
21.
NARA withholding each the drafts full pursuant FOIA Exemption
and Rule 6(e), id. 25, and, separately, pursuant FOIA Exemptions 7(C) and Id. 35.
Plaintiff Response: Plaintiff objects this paragraph the extent contains
conclusions law instead assertions fact. Plaintiff does not dispute that the records
identified Defendant responsive Plaintiff request are being withheld full based
Defendant assertion FOIA Exemptions and 7(C). Plaintiff disputes that Defendant
assertions FOIA Exemptions and 7(C) are lawful correct.
-6-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
22. indictment Mrs. Clinton was ever issued, id. 34, and charges against
her were ever brought. Id. 35.
Plaintiff Response: Undisputed.
23. letter dated March 19, 2015, NARA advised plaintiff that had examined the
folders from Hickman Ewing attorney files that you requested and was withholding the
following records full pursuant FOIA Exemption 7(C): From box 2250 the folder Draft
Indictment (38 pages) From box 2256 the folder Hillary Rodham Clinton/Webster
Hubbell Draft [Indictment] (approximately 200 pages). Id.
Plaintiff Response: Undisputed.
24.
The records which NARA referred its letter included records other than
drafts the proposed indictment. See id. 22.
Plaintiff Response: Plaintiff unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
25. letter dated May 14, 2015, plaintiff appealed administratively the withholding the above records. Id.
Plaintiff Response: Undisputed.
26. letter dated October 16, 2015, NARA advised plaintiff that its administrative
appeal had been placed into the processing queue. Id. 10.
Plaintiff Response: Undisputed.
27. October 20, 2015, plaintiff commenced this action. Id. 11.
Plaintiff Response: Undisputed.
-7-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
28.
Plaintiff commencement this action caused NARA close plaintiff
administrative appeal. Id. 12.
Plaintiff Response: Undisputed.
II.
Plaintiff Statement Undisputed Material Facts Support Cross-Motion
for Summary Judgment. January 20, 1994, U.S. Attorney General Janet Reno appointed Robert
Fiske, Jr. independent counsel investigate allegations criminal activity connection with defunct Arkansas thrift institution, the Madison Guaranty Savings Loan Association Madison Guaranty Robert Ray, Final Report the Independent Counsel, Madison
Guaranty Sav. Loan Ass Vol. app. i-iii (published Jan. 2001) (available
https://www.gpo.gov/fdsys/search/pagedetails.action;jsessionid=jhhW9maoIZ4BLpFXAjR2AY_
SvOfGMl34si2KzT58ARKEuXcGtLo7!175185762!-1864458254?granuleId=GPO-ICREPORTMADISON-1-4packageId=GPO-ICREPORT-MADISONfromBrowse=true) Final
Report ).1
Among the matters Fiske was charged with investigating were Arkansas real
estate venture, known the Whitewater Development Company, Inc., which then-Governor
William Jefferson Clinton and Mrs. Clinton and Madison Guaranty owners Jim and Susan
McDougal were partners, and investment company, Capital Management Services, owned
Arkansas municipal court judge David Hale. Id.
The matters under investigation were commonly referred Whitewater. Id.
Attorney General Reno defined Fiske jurisdiction follows: iii.
(a)
The Independent Counsel: Madison Guaranty Savings Loan Association shall have jurisdiction and authority
Plaintiff respectfully requests that the Court take judicial notice the Final Report,
source[ whose accuracy cannot reasonably questioned. Fed. Evid. 201(b)(2).
-8-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
investigate the maximum extent authorized part 600 this chapter whether any individuals entities have
committed violation any federal criminal civil law
relating any way President William Jefferson Clintons Mrs. Hillary Rodham Clinton relationship with:
(1)
(2)
(3)
Madison Guaranty Saving Loan Association;
Whitewater Development Corporation;
Capital Management Services.
(b)
The Independent Counsel: Madison Guaranty Savings Loan Association shall have jurisdiction and authority
investigate other allegations evidence violation any
federal criminal civil law any person entity
developed during the Independent Counsels investigation
referred above, and connected with arising out that
investigation.
(c)
The Independent Counsel: Madison Guaranty Savings Loan Association shall have jurisdiction and authority
investigate any violation section 1826 title the
U.S. Code, any obstruction the due administration
justice, any material false testimony statement
violation federal law, connection with any
investigation the matters described paragraph (a)
(b) the this section.
(d)
The Independent Counsel: Madison Guaranty Savings Loan Association shall have jurisdiction and authority
seek indictments and prosecute, bring civil actions
against, any person entities involved any the
matters referred paragraph (a), (b), (c) this
section who are reasonably believed have committed
violation any federal criminal civil law arising out
such matters, including persons entities who have
engaged unlawful conspiracy who have aided
abetted any federal offense.
Id. iii-iv.
The scope the independent counsel jurisdiction and authority was later
expanded include investigations into firings the White House Travel Office, the Death
-9-
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
Deputy White House Counsel Vincent Foster, Jr., the White House FBI Files controversy,
and the Monica Lewinsky matter. Id. n.1. August 1994, Fiske was replaced independent counsel Kenneth Starr.
Id. least five final reports ultimately were prepared the independent counsel.
They are:
(1)
Final Report the Independent Counsel, Madison
Guaranty Savings and Loan Association (In Anthony
Marceca) (published March 16, 2000);
(2)
Final Report the Independent Counsel, Madison
Guaranty Savings and Loan Association (In Bernard
Nussbaum) (published March 16, 2000);
(3)
Final Report the Independent Counsel, Madison
Guaranty Savings and Loan Association (In William
David Watkins and Hillary Rodham Clinton)
(published June 22, 2000);
(4)
Final Report the Independent Counsel, Madison
Guaranty Savings and Loan Association (published January 2001) January 2001 Final Report and
(5)
Final Report the Independent Counsel, Madison
Guaranty Savings and Loan Association (Regarding
Monica Lewinsky and Others) (published March 2002).
Declaration Paul Orfanedes Orfanedes Decl. attached hereto Exhibit para.
Each report contains enormous quantities investigative materials, including
grand jury testimony. Id. para.
Each report also was approved for publication the U.S. Court Appeals for
the District Columbia Circuit D.C. Circuit pursuant Section 594(h) and publicly
available the U.S. Government Publishing Office website: https://www.gpo.gov/fdsys/
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
browse/collection.action?collectionCode=GPObrowsePath=Independent+Counsel+Investigatio
ns%2FLewinskyisCollapsed=trueleafLevelBrowse=falseisDocumentResults=trueycord=
191.2 Id. para.
10.
Volume II, Part the January 2001 Final Report contains 87-page
chapter Chapter detailing the independent counsel investigation into Mrs. Clinton
representation Madison Guaranty while attorney the Rose Law Firm Little Rock,
Arkansas. Id. para. true and correct copy this chapter, entitled Mrs. Clinton
Madison Guaranty Representation, attached hereto Exhibit 2.3
11.
According the introduction Chapter Mrs. Clinton represented Madison
Guaranty between April 1985 and July 1986, time when the institution was severe financial
trouble and when insiders committed numerous criminal and other fraudulent acts. Exhibit
410.
12.
Several individuals were ultimately convicted pleaded guilty federal
crimes for their roles connection [with] those transactions. Id.
13.
Mrs. Clinton represented Madison Guaranty regard some the fraudulent
transactions, and Madison Guaranty insiders used and misused her legal services thwart
federal examiners. Id.
14.
The introduction continues:
When Governor Clinton ran for president 1992, Mrs. Clinton representation Madison Guaranty, including how the representation had come about, became
matters public inquiry. that time, Madison Guaranty had failed, failure
that ultimately cost the American tax payers about $73 million. Mrs. Clinton and addition the January 2001 Final Report, Plaintiff respectfully requests that the Court take
judicial notice the other four final reports issued the independent counsel sources whose
accuracy cannot reasonably questioned. Fed. Evid. 201(b)(2).
Due the large size the January 2001 Final Report, Plaintiff only submitting Chapter
Volume II, Part Chapter the report. Plaintiff will submit the entire report the Court wishes.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
the Clinton campaign made public statements regarding her representation that
minimized her role.
Id. 411.
15.
After 1993, the conduct insiders Madison Guaranty and the Rose Law Firm
became the subject multiple federal investigations. Id.
16.
The Resolution Trust Corporation RTC investigated whether insiders had
committed criminal acts, and also examined whether the agency had viable civil claims against
any insiders professionals who had represented Madison Guaranty, including the Rose Law
Firm. Id.
17.
Also, the [Federal Deposit Insurance Corporation] and the RTC investigated
whether Rose attorneys had concealed potential conflicts interest from the agencies. Id.
18.
The FBI and the United States Department Justice also conducted criminal
investigations the conduct the Madison Guaranty insiders and others, including Rose
attorneys, who had been associated with the institution. Id.
19.
Beginning 1994, those investigations were continued [the independent
counsel]. Id.
20.
Also according Chapter the course the federal investigations, Mrs.
Clinton made numerous statements and gave sworn testimony regarding her representation
Madison Guaranty. Id.
21.
The independent counsel investigated whether Mrs. Clinton had committed
perjury, made false statements, obstructed justice during those investigations. Id.
22.
While the independent counsel found some the First Lady statements were
factually inaccurate, concluded that there was insufficient evidence prove beyond
reasonable doubt that Mrs. Clinton had committed any federal criminal offense. Id.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
23.
Volume II, Part Chapter the January 2001 Final Report cites, references,
and quotes, some cases extensively, from many forty-four (44) different, non-grand jury
sources information, not including numerous individual documents, gathered from various
investigations. Orfanedes Decl. para.
24.
These non-grand jury sources information include:
independent counsel witness interviews;
interrogatory responses regulators;
deposition testimony;
trial testimony;
congressional testimony;
witness interviews regulators;
regulatory reports;
media reports;
television interviews; and least one book.
Id.
25.
The chapter also cites, references, and quotes grand jury testimony from least grand jury appearances witnesses between 1995 and 1998. Id.
26. June 2014, Judicial Watch submitted FOIA request the Archives seeking
access binder materials prepared OIC, referenced The Death American Virtue:
Clinton vs. Starr (Broadway Books 2011) Ken Gormley. Id. para.
27.
The Archives ultimately produced 246 pages the records response the
request. Id.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
28.
Among the records produced Judicial Watch the Archives was 206-page
memorandum, dated April 22, 1998, All OIC Attorneys, from the HRC Team and bearing
the subject line Summary Evidence: Hillary Rodham Clinton and Webb Hubbell. Id.
para. true and correct copy the April 22, 1998 Summary the Evidence memorandum attached hereto Exhibit
29.
The April 22, 1998 Summary Evidence memorandum particularly detailed
and contains great many citations and quotations from witness interviews, deposition
testimony, documentary evidence, and grand jury testimony. Orfanedes Decl. para. and
Exhibit
30.
The April 22, 1998 Summary Evidence memorandum cites, references, and
quotes from many the same, non-grand jury sources information cited Volume II, Part
Chapter the January 2001 Final Report, but also cites, references, and quotes from great
many additional sources, including many separate FBI 302s. Id.
31.
Although not exhaustive count, the April 22, 1998 Summary the Evidence
memorandum also cites to, references, quotes testimony from least grand jury
appearances some witnesses between 1995 and 1998, including witnesses not
referenced Volume II, Part Chapter the January 2001 Final Report. Id.
32.
The April 22, 1998 Summary Evidence memorandum, which largely
unredacted, available the public Judicial Watch website along with the other records
produced Archives response Judicial Watch June 2014 FOIA request. Id.at para.
33.
Judicial Watch did not pursue administrative appeal the Archives
redactions for reasons unrelated whether Judicial Watch believes those redactions have merit.
Id.
Case 1:15-cv-01740-RBW Document Filed 03/11/16 Page
34. March 2015, Judicial Watch submitted FOIA request the Archives
seeking access Ewing draft indictments. Id. para.
35.
Specifically, Judicial Watch requested:
All versions indictments against Hillary Rodham Clinton, including but not
limited Versions and box 2250 the Hickman Ewing Attorney Files,
the HRC/___ Draft Indictment box 2256 the Hickman Ewing Attorney
Files, well any and all versions written Deputy Independent Counsel
Hickman Ewing, Jr. prior September 1996.
Id.
36. simple google search for the words Starr Report March 2016 yielded
13,200,000 results. Id. para. 10.
37. google search for Hillary Clinton draft indictment that same date yielded
547,000 results. Id.
38.
Judicial Watch efforts gain access the draft indictments have been the
subject news reports CNN, Politico, The New York Post, Investor Business Daily, The
National Review, and even the United Kingdom Daily Mail. Id. para. 11.
Dated: March 11, 2016
Respectfully submitted,
JUDICIAL WATCH, INC.
/s/ Paul Orfanedes
Paul Orfanedes
D.C. Bar No. 429716
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: porfanedes@judicialwatch.org
Attorneys for Plaintiff