CONSOLIDATED ACTIONS

PLAINTIFFS' MOTION TO COMPEL FURTHER PRODUCTION OF DOCUMENTS FROM THE U.S. DEPARTMENT OF DEFENSE AND FOR SANCTIONS

Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Plaintiffs, by counsel, respectfully request that the Court enter an order compelling the U.S. Department of Defense to provide further documents. Plaintiffs request that the documents be reviewed by the Court in camera. Plaintiffs also seek sanctions for the continuing improper litigation conduct of the Clinton Department of Justice and Department of Defense. As grounds therefore, Plaintiffs state as follows:

I. INTRODUCTION.

The release and misuse of over 900 FBI files is only part of a pattern of privacy violations by the Clinton Administration and its allies and agents. No one is immune; whether it is Plaintiffs, Kenneth Starr, public interest groups, journalists, or even judges who make rulings against, or even criticize, the Administration. In a piece called "Blow Back," Jonathan Broder, Washington Bureau Chief of Salon, a Clinton "front" organization posing as an independent Internet journal, foretold of the strategy--while also smearing respected columnist George Will.⁽¹⁾ That pattern of conduct is manifested in the collection, of private, personal and highly confidential information about people in order to intimidate and blackmail them. This intimidation and blackmail is used to keep people from engaging in criticism and conduct the Clinton Administration perceives to be against its interests and to harm and destroy their reputations before "the court of public opinion" if they do.

More recently, with apparent impeachment proceedings looming on the horizon, Salon--a Clinton front operation--reissued the same warning, showing that "Filegate" is alive and well. Salon said that "die-hard Clinton loyalists are spreading the word that a long-ignored but fearsome tactic has now resurfaced as an element in the president's survival strategy: The threat of exposing the sexual improprieties of Republican critics, both in Congress and beyond, should they demand impeachment hearings in the House."⁽²⁾ Mr. Broder quoted "one close ally of the president" as saying that "the Republicans with skeletons in their closets must assume everything is known and will come out. So the question is: Do they really want to go there?"⁽³⁾ "Sources in the Clinton camp say they are focusing their attention not only on issues of marital infidelity but also on issues of character," according to Mr. Broder.⁽⁴⁾ Mr. Broder reports his "sources" say that "among those under scrutiny" are House Speaker Newt Gingrich, House Majority Leader Richard Armey and Republican Congressman Dan Burton.⁽⁵⁾

For the present Plaintiffs, but hardly for the entire potential class, this conduct manifested itself in the illegal transfer and acquisition of over 900 FBI files of individuals from the FBI to the Clinton White House.

This story predates 1993. Former presidential advisor Dick Morris admitted that the 1992 Clinton campaign used private investigators to obtain private and embarrassing information to coerce the silence of women sexually involved with President Clinton while he was Governor of Arkansas.⁽⁶⁾ The effort was run by Betsy Wright, who, at crucial and relevant times, Secret Service logs show later visited Defendant Craig Livingstone at odd hours in the White House.⁽⁷⁾ In 1993, then unknown to the public, the Clinton White House received the FBI files that are now the subject of this lawsuit. In 1996, former Rep. William Clinger, who was investigating the White House Travel Office scandal, discovered that the FBI file of the former head of that office, Billy Dale, was transferred to the White House.⁽⁸⁾

It soon became apparent that over 900 such files were transferred from the FBI to the White House. Most, if not all the files were on Republicans. Among the FBI files that were found in the White House Office of Personnel Security, in addition to those of the Plaintiffs, were those of some prominent individuals, including Linda Tripp and former Bush Administration officials James A. Baker and Kenneth Duberstein along with Tony Blankley, former aide to Speaker Newt Gingrich.⁽⁹⁾ The FBI file of President Bush's former press secretary, Marlin Fitzwater, was among those gathered by Mr. Marceca.⁽¹⁰⁾ FBI Director Louis Freeh said that this file transfer and acquisition was an "egregious violation of privacy" and that the FBI had been "victimized" by the Clinton Administration while the FBI said the transfer and acquisition was "without justification."⁽¹¹⁾

As has been true in nearly all of its thirty-nine (39) scandals, the Clinton Administration called the transfer an "innocent snafu" and tried to blame the transfer on the Secret Service.⁽¹²⁾ The Secret Service disputed the Clinton Administration's explanation.⁽¹³⁾ The Administration failed to provide a credible chain of custody for the files. Later it was revealed that two people working in the White House, David Craig Livingstone and Anthony Marceca, were instrumental in the illegal transfer and acquisition.⁽¹⁴⁾ Both Mr. Livingstone and Mr. Marceca had histories that made them better suited for work less respectable than what one would have expected to be occurring in the White House.⁽¹⁵⁾ The Clinton Administration has never provided a clear and credible answer to the question of how Mr. Livingstone was hired for his White House job and was unable to answer all of the important questions. Due to stonewalling, likely perjury and claims of the Fifth Amendment's privilege against self-incrimination, a House of Representatives committee investigation never answered any significant questions for which Plaintiffs are now seeking answers, including the identity of anybody who saw the contents of the files and a precise description of how the files were used.⁽¹⁶⁾

FBI Director Louis Freeh recently said he was concerned enough about leaks of FBI information that he issued a direct warning to former FBI personnel about the matter.⁽¹⁷⁾ This directive almost certainly was issued in response to the news that his former FBI colleague Larry Potts, who allegedly gave the "shoot on sight" order at Ruby Ridge, is now a virtual partner at Terry Lenzner's Investigative Group International, Inc., who was hired by David Kendall to help conduct investigations to aid President Clinton's defense in the Whitewater, Paula Jones and other matters.⁽¹⁸⁾ Former FBI General Counsel, Howard Shapiro, left the FBI, in part because of ethical misjudgments, if not misdeeds, in Filegate and is now Mr. Lenzner's personal attorney.⁽¹⁹⁾

Additional evidence for Plaintiffs' claims emerged earlier this year when former presidential aide George Stephanopoulos revealed on ABC News' This Week With Sam & Cokie that the Clinton Administration's allies have an "Ellen Rometsch strategy" to neutralize political opponents that involves the use of information to intimidate and blackmail people. Historically speaking, the "Ellen Rometsch strategy" involves the use of FBI files to accomplish those goals. He also said that these allies will "take down" others with them if the Clinton Administration goes down.⁽²⁰⁾ Tellingly, Mr. Stephanopoulos was not the only Clinton associate hearing about those same plans. Salon Internet site, which fronts for the Clinton Administration, echoed the same warnings against Clinton critics at around the same time, on February 12, 1998, revealing and warning that smear attacks, consistent with the "Ellen Rometsch strategy," were about to be launched against Rep. Bob Barr, Speaker Newt Gingrich, and others "summoned to sit in judgment on President Clinton, should be he impeached�."⁽²¹⁾ Thus, Mr. Stephanopoulos' knowledge of this "Ellen Rometsch strategy" of attacks is apparent, and confirming its source becomes increasingly important. Recently, Salon has confirmed that the "Ellen Rometsch strategy" is continuing.⁽²²⁾

Material witnesses in matters that could implicate President and Mrs. Clinton in illegal conduct have had their privacy rights threatened, if not actually violated by the Clinton Administration. A witness in the Monica Lewinsky case, Kathleen Willey, had letters from her government file improperly released to the media by the White House.⁽²³⁾ The "Ellen Rometsch strategy" erupted when Pentagon employee Linda Tripp, a material witness in Independent Counsel Kenneth Starr's investigation, had information from her private Pentagon file illegally released to the media by Clinton political appointees.⁽²⁴⁾ During the deposition of Lanny Davis, he admitted that while employed at the White House he kept files on persons and entities⁽²⁵⁾ and released documents from these files to the media⁽²⁶⁾ without checking Privacy Act requirements⁽²⁷⁾ or obtaining permission from those persons who were the subjects of his files.⁽²⁸⁾

Thus, the publicly known facts clearly establish a course of conduct that goes well beyond the illegal transfer and acquisition of the subject FBI files. That transfer and acquisition merely is part of the Clinton Administration's larger racketeering pattern and practice of improperly obtaining and releasing private information from government files about its perceived adversaries in order to intimidate and harm them.

The Defendants' previous claim that such pattern and practice evidence is irrelevant because it does not directly involve the subject FBI files, was rejected when this Court ruled that, at a minimum, this evidence is relevant to the discovery phase of this case.⁽²⁹⁾ Specifically in the case of Linda Tripp, who is viewed by the Clinton Administration as one of its adversaries, the Court ruled that Plaintiffs may conduct discovery about the Clinton Department of Defense's release of information from Ms. Tripp's personnel file to reporter Jane Mayer. The Court said that the Tripp matter is a proper area of discovery because it can establish a "permissible inference," making it "reasonable to conclude that FBI files were obtained and misused in the instant case."⁽³⁰⁾

Plaintiffs have discovered much information about the illegal release of Ms. Tripp's private information that the Clinton DoD has tried to hide. On April 30, 1998, Plaintiffs deposed Clifford Bernath, the Clinton DoD official identified as having released the Tripp information to Ms. Mayer when he was Principal Deputy Assistant to the Secretary of Defense for Public Affairs. At his deposition, Bernath testified that he was directed to obtain and release the Tripp information by his superior, Kenneth Bacon, Assistant Secretary of Defense for Public Affairs, a Clinton political appointee.⁽³¹⁾ Bernath testified he told Jane Mayer that Bacon "has made it clear it's [the release of the Tripp information] a priority,"⁽³²⁾ because Ms. Mayer "was on deadline and whenever a reporter is on deadline, we call that a priority."⁽³³⁾ As the Court noted, Bernath's revelation that he was told to release the Tripp information by a Clinton political appointee was understood by the Court as conflicting with the Clinton Justice Department's statements to the Court that the release was made by a career official.⁽³⁴⁾

The role of Bacon, a Clinton political appointee, became clearer when he testified that he took the initial call from Jane Mayer,⁽³⁵⁾ told Bernath about the search for Ms. Tripp's private information,⁽³⁶⁾ and led Bernath to believe that releasing the information to Ms. Mayer was "a priority."⁽³⁷⁾ Bacon testified that he "was very aware of what Bernath was doing and � did nothing to stop it."⁽³⁸⁾

This contrasts with Secretary of Defense William Cohen's previous misleading public statements indicating that Bernath acted on his own in releasing the information.⁽³⁹⁾ Although Secretary Cohen said the release of Ms. Tripp's information was "certainly inappropriate, if not illegal,"⁽⁴⁰⁾ neither Secretary Cohen nor the White House told the public about the involvement of Bacon and others.⁽⁴¹⁾ Secretary Cohen said Bernath "was responding to an inquiry from the press" without mentioning that Bernath was responding to direction from Clinton political appointee Bacon.⁽⁴²⁾ Bacon testified that after Secretary Cohen made his statement on Fox News Sunday, Bacon told him that he should correct his statement.⁽⁴³⁾ Yet, Bacon testified that he is unaware of Secretary Cohen ever correcting the record, and he is unaware of either the DoD or the Clinton Administration ever making a public statement that Bacon was involved in the release of Ms. Tripp's information.⁽⁴⁴⁾ If it were not for Plaintiffs' depositions of Bernath and Bacon, Bacon's involvement might never have been made public.

The Clinton DoD made other false statements about the circumstances of the Tripp release. Soon after the Tripp information was made public, Pentagon spokesman, Col. Dick Bridges, said that the person who gave Ms. Mayer the Tripp information (who the public later learned was Bernath), "thought he was releasing 'innocent' information because it merely noted that Tripp said she had never been arrested."⁽⁴⁵⁾ However, on May 15, 1998, Bacon testified that in the phone conversation with Ms. Mayer, when she first asked him how Ms. Tripp "answered a specific question on her Security Clearance Form," she "said that she had information that Linda Tripp had been arrested" and "told me the circumstances�"⁽⁴⁶⁾ Bacon further testified that when he first spoke to Bernath about Ms. Mayer's request "I told him exactly what Jane Mayer told me, which was that she had information that Linda Tripp had been arrested."⁽⁴⁷⁾ Consistent with Bacon's account, on April 30, 1998, Bernath testified that prior to his conversation with Ms. Mayer, Bacon told him "that she indicated that she may have information that there was--that Ms. Tripp may have had a problem when she was young�."⁽⁴⁸⁾ Bernath knew that if Ms. Mayer had information that Ms. Tripp had been arrested, it "would be a serious circumstance and it would have to be investigated."⁽⁴⁹⁾ So contrary to the statement by Mr. Bridges, prior to release of Tripp's private information to Ms. Mayer, both Bacon and Bernath were told that Ms. Tripp had been arrested and neither Bacon or Bernath thought they were releasing "innocent" information to Ms. Mayer.

The apparent cover-up also involved the destruction of documents. Bernath deleted some of his computer files after he had reason to know that he likely violated Ms. Tripp's privacy rights and that his conduct would be investigated. He testified that he deleted the files between April 1-10, 1998.⁽⁵⁰⁾ Yet, he "requested a Pentagon inquiry to examine the propriety of his actions, said a Pentagon spokesman, Lt. Col. Dick Bridges," according to a March 18, 1998, New York Post article.⁽⁵¹⁾ Even Bacon testified that by March 17 or 18, Bernath told him he "had asked for a legal review" of the circumstances behind the release.⁽⁵²⁾ That same article quoted Secretary Cohen as saying, "The records are supposed to be protected by the privacy rules."⁽⁵³⁾ Pentagon spokesman Lt. Col. Bridges also was quoted in the article as saying, "the decision to release Tripp's answer was 'one time only' and won't apply to future requests."⁽⁵⁴⁾ The article also quoted two U.S. Congressmen as calling for an investigation of Bernath's conduct.⁽⁵⁵⁾ Only after Rep. Gerald B.H. Solomon wrote to Secretary Cohen, calling the release an apparent violation of the Privacy Act, did the Clinton DoD announce it had begun an investigation of the release.⁽⁵⁶⁾ It is likely that any request for an investigation by Bernath was motivated by Rep. Solomon's letter. On March 28, 1998, The Washington Post published Nat Hentoff's column, which said that the release of Ms. Tripp's personnel information was a violation of her privacy rights, noting:

In the March 30 Weekly Standard, Richard Huff, co-director of the Justice Department's Office of Information and Privacy, says: "We would not do that. It would be a violation of the Privacy Act."⁽⁵⁷⁾

Therefore, Bernath's computer file deletions were done when he knew his role in the release of Ms. Tripp's private information would be investigated and his computer files would be searched for likely evidence. His conduct creates a strong inference that he deleted his files in order to hide something improper. Commenting on these deletions, this Court said that "cause for concern should exist when an upper-level government employee completely deletes his hard drive when this hard drive may have information relevant to an on-going criminal investigation, let alone the instant case"⁽⁵⁸⁾ and "it is highly unusual and suspect for such an action to have been undertaken by Bernath when matters relating to Tripp are being investigated by the Office of the Independent Counsel."⁽⁵⁹⁾

Moreover, it was recently reported that in addition to any violation of the Privacy Act, the Tripp release "also contradicts the Pentagon's internal guidelines."⁽⁶⁰⁾ Those guidelines "are routinely taught to all public affairs officers--both military and civilian--at a special school under Bacon's purview."⁽⁶¹⁾

Incredibly, Bernath was given a new job at higher pay after he helped violate Ms. Tripp's privacy rights! Bacon testified that "sometime during the week of March 16^th"⁽⁶²⁾ he selected Bernath to run the American Forces Information Service, which entailed a grade and pay increase for Bernath.⁽⁶³⁾ It is reported that in his new job, Bernath "has direct control over the Fort Meade school that teaches privacy regulations to public affairs officers."⁽⁶⁴⁾ Bacon testified that "I offered him that job because I thought he was the best of the three candidates."⁽⁶⁵⁾ Given Bernath's violation of Ms. Tripp's privacy rights, his own request for a legal review of his conduct, his improper deletion of computer files when he knew that investigators would want to see them and the Clinton DoD's attempt to cover-up important facts about the violation, it is far easier to believe that Bernath was rewarded for his improper conduct than that he was really the best qualified candidate for a job that has control over a school that teaches privacy regulations.

The relationships between those involved in the Tripp release are important for assessing their motives and intent and obtaining the facts. Bacon was Bernath's boss.⁽⁶⁶⁾ Both Monica Lewinsky and Linda Tripp worked in Bernath's office in the Pentagon.⁽⁶⁷⁾ Bernath had "influence" over them.⁽⁶⁸⁾ Bernath was one of Ms. Tripp's superiors.⁽⁶⁹⁾ Bacon hired Monica Lewinsky for her Pentagon job.⁽⁷⁰⁾ Bernath was aware that Ms. Tripp said Ms. Lewinsky told her that President Clinton had an affair with Ms. Lewinsky.⁽⁷¹⁾ Bernath also was aware that the White House denied the allegation of that affair.⁽⁷²⁾ These facts raise questions about whether Bacon and Bernath viewed Ms. Lewinsky as somebody who had to be protected for the sake of the President, thus providing a motive for the attempt to destroy Ms. Tripp by releasing her private information. Additionally, after it became known around mid-January, 1998, that Bacon's Pentagon hiring of Ms. Lewinsky had come under criminal investigation by Mr. Starr's Office of Independent Counsel, Bacon and Bernath had a further interest in destroying Ms. Tripp. Finally, any improper favoritism given to Ms. Lewinsky by Bacon or Bernath, such as in her hiring at the Pentagon, would be circumstantial evidence that they viewed her as somebody to be protected from Ms. Tripp.⁽⁷³⁾

Bernath testified that prior to his release of Ms. Tripp's information, he never released similar information about anybody else, but after the Tripp release he released the same information about Mr. Bacon.⁽⁷⁴⁾ However, Ms. Tripp clearly was treated less favorably than Bacon when Bernath released their private personnel information. Bernath did not obtain Ms. Tripp's authorization before releasing her information.⁽⁷⁵⁾ The only known person from whom Bernath sought authorization to release Ms. Tripp's information was Bacon.⁽⁷⁶⁾ In sharp contrast, after a request from a conservative publication, Bernath released the same type of information about Bacon only after he obtained Bacon's express authorization.⁽⁷⁷⁾

At his deposition, Bernath resisted disclosure of Ms. Mayer's suspicious deference to him. According to Bernath, within a few days after his release of Ms. Tripp's information to Ms. Mayer, she called him again and told him she received a call from reporter Tucker Carlson.⁽⁷⁸⁾ Bernath testified that Ms. Mayer told him that Mr. Carlson was a "rabid anti-Clintonite and he may be calling me [Bernath]."⁽⁷⁹⁾ Bernath further testified that he "assumed that she just wanted to give me a heads up"⁽⁸⁰⁾ and when asked what else Ms. Mayer said, Bernath replied, "[t]hat was it."⁽⁸¹⁾ However, later in the deposition, Plaintiffs' attorney reviewed Bernath's notes about that phone call which showed that Bernath wrote that Ms. Mayer "[w]ants to know how to respond. Doesn't want to cause me [Bernath] any problems."⁽⁸²⁾ Earlier in the deposition, Bernath did not mention that Ms. Mayer asked him "how to respond" to Mr. Carlson. Since there is no evidence that Ms. Mayer promised Bernath confidentiality as a source of the Tripp information,⁽⁸³⁾ Ms. Mayer's question to Bernath about how she should respond to Mr. Carlson raises significant questions about whether she was acting as a journalist or a political operative as foretold by Mr. Stephanopoulos and Salon. Indeed, Ms. Mayer previously worked with Sidney Blumenthal at The New Yorker. This may explain why earlier in the deposition Bernath failed to mention this aspect of Ms. Mayer's second phone call, despite being asked for such information ("Q: What else did she say? A: That was it.").⁽⁸⁴⁾

It appears that soon after the Lewinsky story became public, the White House Counsel's Office requested information from White House files on Ms. Tripp as the President ignored a Congressional request for information about such searches. In Plaintiffs' deposition of Terry Good, Director of the White House Office of Records and Management, the following exchange occurred:

Q: Has any office of the White House or person made a request with regard to information or documentation concerning Linda Tripp?

A: I believe the counsel's office probably did, yes.

Q: Who made that request?

A: I do not know.

Q: What was that request about?

A: Again, if I don't remember the request, I can't tell you what it was about. All I can say is it probably was about anything and everything that we might have in our files relating to Linda Tripp.⁽⁸⁵⁾

At about that same time, Rep. Gerald Solomon wrote a letter to President Clinton asking whether anyone had pulled Ms. Tripp's White House file but did not receive a response.⁽⁸⁶⁾ Rep. Soloman cited Mr. Good's deposition and the President's failure to respond in a recent letter to Independent Counsel Kenneth Starr referring to the matter as a "potential obstruction of a Congressional investigation" and "intimidation of a federal witness."⁽⁸⁷⁾

This motion is necessary because the Clinton DoD refused to fully comply with Plaintiffs' subpoena duces tecum. On April 16, 1998, Plaintiffs served a subpoena on the Clinton DoD that included a request for, "[a]ny and all records, correspondence, notes, communications or other documents concerning or relating to Linda Tripp."⁽⁸⁸⁾ On April 30, 1998, the Clinton DoJ responded, stating, in part, "Judge Lamberth's April 13, 1998 Memorandum and Order guides our response to the subpoena" and that, "under the terms of Judge Lamberth's order, the DoD's production of documents will be factually and temporally limited to the scope of that Order and the issue delineated therein."⁽⁸⁹⁾ The Clinton DoD objected to the production of documents that were "beyond the scope of" the Court's April 13^th Order.⁽⁹⁰⁾ The Clinton DoD also withheld documents and portions of documents on the grounds of "the law enforcement privilege," the deliberative process privilege," "the attorney-client privilege," "the work-product doctrine," and "the Privacy Act."⁽⁹¹⁾ The Clinton DoD further said that, "[t]o the extent that you seek documents or testimony beyond the scope of Judge Lamberth's Order, you have failed to comply with DoD's Touhy⁽⁹²⁾ regulations."⁽⁹³⁾ By letter dated May 6, 1998, the Clinton DoD produced a privilege log and documents in response to the subpoena.⁽⁹⁴⁾ The Clinton DoD said that "documents relating to the DoD formal responses to several congressional inquiries concerning the alleged leak of information from Linda Tripp's security-clearance form � are non-responsive and are not included in the privilege log" and that "all documents relating to the DoD's handling of its own internal investigations into the alleged leak [including the DoD Inspector General's Investigation] are not responsive � therefore, are not included within the privilege log."⁽⁹⁵⁾

This Court recently rejected the unduly narrow definition of relevancy underlying the Clinton DoD's refusal to produce many of the subpoenaed documents and portions of documents. Ruling on Plaintiffs' motion to compel further testimony and documents from Clifford Bernath, this Court noted the Clinton DoJ's "erroneous perception of what is considered to be relevant in this case pursuant to the court's April 13 memorandum and order,"⁽⁹⁶⁾ and stated that it "will also entertain any motion to compel plaintiffs may wish to file with respect to documents in the possession of DOD."⁽⁹⁷⁾ Accordingly, the Court ordered Bernath to "re-examine documents originally considered to be nonresponsive to determine whether these documents were appropriately withheld" and "re-examine all responsive documents, including the redacted portions of produced documents" and "produce all responsive, nonprivileged documents and . . . submit all withheld documents to the court for in camera inspection to determine the legitimacy of each withholding."⁽⁹⁸⁾

Plaintiffs request that the Court order the Clinton DoD to do the same. Plaintiffs expect that many documents were improperly withheld and redacted by the Clinton DoD, not only because of its discredited definition of relevancy regarding this case, but also because of it's invalid claim of "deliberative process privilege" and other privileges. For example, the deliberative process privilege, "disappears altogether when there is any reason to believe government misconduct occurred"⁽⁹⁹⁾ and the facts of this case show that much government misconduct occurred.

II. DISCUSSION.

1. The Clinton DoD Should be Compelled to Produce Documents in camera.

Plaintiffs request that the Clinton DoD be ordered to produce documents in camera just as Bernath was ordered to do so in the Court's recent Memorandum Opinion and Order.⁽¹⁰⁰⁾ It should be ordered to "re-examine documents originally considered to be nonresponsive to determine whether these documents were appropriately withheld" and "re-examine all responsive documents, including the redacted portions of produced documents" and "produce all responsive, nonprivileged documents and . . . submit all withheld documents to the court for in camera inspection to determine the legitimacy of each withholding."⁽¹⁰¹⁾ Naturally, this should include all of the computers, hard drives, servers and backup tapes, etc., that might contain relevant documents.

The necessity for in camera review of the documents in this case is highlighted by the Court's ruling regarding Craig Livingstone, where the Court stated: "But for the court's request to review the documents withheld in camera, several documents would never have been produced to plaintiffs."⁽¹⁰²⁾

A. The Clinton DoD Used an Improper Definition of Relevancy in Responding to the Subpoena.

As explained above, the Clinton DoD withheld and redacted many documents because of an unduly narrow definition of relevancy that has been rejected by this Court. The Clinton DoJ's "erroneous perception of what is considered to be relevant in this case pursuant to the court's April 13 memorandum and order"⁽¹⁰³⁾ has been established.

B. The Deliberative Process Privilege is Inapplicable.

The Clinton DoD's assertion of the deliberative process privilege is invalid. The D.C. Circuit recently stated that the deliberative process privilege does not apply in a case that involves government misconduct:

For example, where there is reason to believe that the documents sought may shed light on government misconduct, "the privilege is routinely denied," on the grounds that shielding internal deliberations in this context does not serve "the public's interest in honest, effective government."⁽¹⁰⁴⁾

When explaining how the deliberative process privilege "disappears altogether when there is any reason to believe government misconduct occurred," the D.C. Circuit explained how much more easily the deliberative process privilege can be overcome compared to the presidential communications privilege:

[W]hile both the deliberative process privilege and the presidential privilege are qualified privileges, the Nixon cases suggest that the presidential communications privilege is more difficult to surmount. In regard to both, courts must balance the public interests at stake in determining whether the privilege should yield in a particular case, and must specifically consider the need of the party seeking privileged evidence. But this balancing is more ad hoc in the context of the deliberative process privilege, and includes consideration of additional factors such as whether the government is a party to the litigation. Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred.⁽¹⁰⁵⁾

In our case, there is much reason to believe government misconduct occurred, both in regard to the subject FBI files and the release of Ms. Tripp's private information by the Clinton DoD. FBI Director Louis Freeh said that the transfer and acquisition of the subject FBI files was an "egregious violation of privacy" and that the FBI had been "victimized" by the Clinton Administration while the FBI said the transfer and acquisition was "without justification."⁽¹⁰⁶⁾ Secretary Cohen said the release of Ms. Tripp's information was "certainly inappropriate, if not illegal,"⁽¹⁰⁷⁾ while neither Secretary Cohen nor the White House told the public about the involvement of Bacon and others⁽¹⁰⁸⁾ even after Bacon told Secretary Cohen that he should correct his statement.⁽¹⁰⁹⁾ Moreover, the Tripp release "also contradicts the Pentagon's internal guidelines"⁽¹¹⁰⁾ that "are routinely taught to all public affairs officers--both military and civilian--at a special school under Bacon's purview."⁽¹¹¹⁾

The Pentagon misled the public about the Tripp release. The Pentagon falsely told the public that Bacon and Bernath thought they were releasing "innocent" information about Ms. Tripp,⁽¹¹²⁾ when both Bacon and Bernath knew that the information was not "innocent."⁽¹¹³⁾

Bernath deleted his computer files when he knew his role in the release of Ms. Tripp's private information would be investigated and his computer files would be searched for likely evidence,⁽¹¹⁴⁾ causing this Court to say that "cause for concern should exist when an upper-level government employee completely deletes his hard drive when this hard drive may have information relevant to an on-going criminal investigation, let alone the instant case"⁽¹¹⁵⁾ and "it is highly unusual and suspect for such an action to have been undertaken by Bernath when matters relating to Tripp are being investigated by the Office of the Independent Counsel."⁽¹¹⁶⁾

After Bacon and Bernath violated Ms. Tripp's privacy rights, Bacon selected Bernath to run the agency that "has direct control over the Fort Meade school that teaches privacy regulations to public affairs officers,"⁽¹¹⁷⁾ resulting in a grade and pay increase for Bernath.⁽¹¹⁸⁾ Bacon testified that "I offered him that job because I thought he was the best of the three candidates."⁽¹¹⁹⁾ Given Bernath's demonstrated lack of concern for privacy rights, it is difficult to think of somebody who would be a worse person to control that Fort Meade school.

Therefore, the facts show government misconduct occurred when the subject FBI files were transferred by the FBI and acquired by the Clinton White House, when Ms. Tripp's private information was released and continues to occur as the Clinton DoD tries to cover-up the original misconduct regarding Ms. Tripp and reward one of the primary violators of her rights. Given those facts and the D.C. Circuit's ruling that "the privilege disappears altogether when there is any reason to believe government misconduct occurred,"⁽¹²⁰⁾ clearly, there is no basis for application of the deliberative process privilege here.

C. The Burden of Proving the Facts Necessary for Application of the Attorney-Client Privilege is on the Clinton DoD.

The party asserting the attorney-client privilege has the burden of proving the facts necessary for its application.⁽¹²¹⁾ To be protected by the attorney-client privilege, communications must satisfy specific criteria. The mere fact that an individual communicates with an attorney does not make the communication privileged. The Third Circuit said it, "is true that a communication is not privileged simply because it is made by or to a person who happens to be a lawyer."⁽¹²²⁾ Moreover, the "attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services."⁽¹²³⁾ Specifically, information is protected by the privilege only if it relates to a fact conveyed to a lawyer by the client.⁽¹²⁴⁾ Furthermore, the privilege extends to communications from attorneys to their clients if the communications rest on confidential information obtained from the client.⁽¹²⁵⁾

Therefore, if the Clinton DoD fails to provide the facts necessary to establish its claims of attorney-client privilege, Plaintiffs request that the Court reject any such claims.

D. Law Enforcement Privilege.

The law enforcement investigatory privilege is "a qualified privilege that protects against the release of documents whose disclosure might reveal law enforcement investigative techniques or sources�."⁽¹²⁶⁾ However, as explained by the Clinton DoJ:

The privilege applies where the party asserting it meets three threshold requirements:

(1) there must be a formal claim of privilege by the head of the department having control over the requested information; (2) assertion of the privilege must be based on actual personal consideration by that official; and (3) the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege.

Koehler v. United States, No. 90-2384, 1991 WL 277542, *4 (D.D.C. Dec. 9, 1991), quoting In re Sealed Case, 856 F.2d at 271.⁽¹²⁷⁾

In the present case, the Clinton DoD has failed to produce a formal claim of law enforcement privilege by the head of the DoD showing actual personal consideration by that official. Moreover, the Clinton DoD has failed to provide an explanation of why the information properly falls within the scope of the privilege.

Moreover, when deciding whether the privilege prevents disclosure, the D.C. Circuit said that a court is "required to weigh '[t]he public interest in nondisclosure . . . against the . . . need for access to the privileged information.'"⁽¹²⁸⁾ This requires consideration of a number of factors:

(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiff's case.⁽¹²⁹⁾

Moreover, when determining applicability of the privilege, it is appropriate for the court to require in camera inspection of the documents.⁽¹³⁰⁾

It appears that the Clinton DoD's claims of law enforcement privilege are confined to documents related to the long-delayed internal investigation of the Tripp release by its Inspector General. These documents are likely to contain further evidence of a deliberate effort to prevent the public from learning all the facts about the violation Ms. Tripp's privacy and are likely to include evidence of improper political influence from the Clinton White House. The Clinton DoD's attempts to mislead the public about the Tripp release, uncovered by Plaintiffs, provides good reason to believe that the Inspector General's investigation has been compromised, assuming it could have been trusted to begin with. Moreover, it is very likely that the IG's investigation has had to undergo major revisions because of evidence uncovered by Plaintiffs. The long delay by the IG is evidence of a cover-up.

While Secretary Cohen said the release of Ms. Tripp's information was "certainly inappropriate, if not illegal,"⁽¹³¹⁾ neither he nor the White House told the public about the involvement of Bacon, a Clinton political appointee,⁽¹³²⁾ and others,⁽¹³³⁾ even after Bacon told Secretary Cohen that he should correct his statement implying that only Bernath was responsible.⁽¹³⁴⁾

Moreover, the Tripp release "contradicts the Pentagon's internal guidelines"⁽¹³⁵⁾ that "are routinely taught to all public affairs officers--both military and civilian--at a special school under Bacon's purview."⁽¹³⁶⁾

The Clinton DoD misled the public about the Tripp release when it falsely announced that Bacon and Bernath thought they were releasing "innocent" information about Ms. Tripp,⁽¹³⁷⁾ when both Bacon and Bernath knew that the information was not "innocent."⁽¹³⁸⁾

Bernath deleted his computer files when he knew his role in the release of Ms. Tripp's private information would be investigated and his computer files would be searched for likely evidence,⁽¹³⁹⁾ causing this Court to say that "cause for concern should exist when an upper-level government employee completely deletes his hard drive when this hard drive may have information relevant to an on-going criminal investigation, let alone the instant case"⁽¹⁴⁰⁾ and "it is highly unusual and suspect for such an action to have been undertaken by Bernath when matters relating to Tripp are being investigated by the Office of the Independent Counsel."⁽¹⁴¹⁾

After Bacon and Bernath violated Ms. Tripp's privacy rights, Bacon selected Bernath to run the agency that "has direct control over the Fort Meade school that teaches privacy regulations to public affairs officers,"⁽¹⁴²⁾ resulting in a grade and pay increase for Bernath.⁽¹⁴³⁾ Bacon testified that "I offered him that job because I thought he was the best of the three candidates,"⁽¹⁴⁴⁾ raising the likelihood that as the Clinton DoD tried to cover-up the original violation of Ms. Tripp's privacy, it also rewarded one of the primary violators of her rights.

Therefore, in addition to the original violation of Ms. Tripp's privacy, the Clinton DoD has engaged in a systematic effort to mislead the public and keep them from knowing all the facts. It is against this background that the Court should consider the ten factors listed above for determining the Clinton DoD's claim of law enforcement privilege.

(1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information:

The only governmental process that will be thwarted by in camera disclosure of the IG's investigative documents to the Court, and thereafter to others as deemed appropriate by the Court, will be the Clinton Administration's process of privacy violations, improper witness intimidation and lying. The IG's investigation relates to deception and illegality largely among government employees. This is not a case where the government is investigating wrongful conduct by private citizens and the success of the investigation depends upon private citizens being willing to provide the government with information. Most, if not all of the information that the IG needs to conduct a proper investigation will come from government employees.

(2) The impact upon persons who have given information of having their identities disclosed:

There is no claim that anybody has given the IG information on condition of anonymity. This is especially unlikely given that most, if not all of the witnesses are government employees. If protecting a person's identity becomes necessary the Court can handle that issue in camera and make an appropriate order.

(3) The degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure:

Exposing this corruption to the disinfectant of Court review and appropriate disclosure to others will improve governmental self-evaluation and programs.

(4) Whether the information sought is factual data or evaluative summary:

Both could be involved here. While there is little reason to withhold factual data developed by the IG, a court may be reluctant to release evaluative summaries that reveal the deliberative process behind the report. However, in this case, the strongest evidence of a corrupted investigation could be in evaluative summaries that distort and ignore the facts in reaction to various events such as Plaintiffs' depositions of Bacon and Bernath, this Court's rulings regarding these matters and likely communications from the Clinton White House. Corrupt evaluations that help cover-up important facts about the Tripp release would constitute direct evidence for use in Plaintiffs' lawsuit. There is no good reason to keep any such evaluations secret, especially since the deliberative process privilege "disappears altogether when there is any reason to believe government misconduct occurred."⁽¹⁴⁵⁾

(5) Whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question:

None of the Plaintiffs is an actual or potential defendant in a criminal proceeding.

(6) Whether the police investigation has been completed:

While the IG is not the "police," the IG has not publicly announced that the investigation has been completed. It is likely that as long as Judicial Watch is in a position to further depose those involved in the Tripp release and obtain relevant documents, the IG will not complete the investigation out of fear of releasing a report that is later shown to be completely inadequate when compared with information uncovered by Judicial Watch.

(7) Whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation:

While there should be disciplinary proceedings against several of the persons involved, so far, at least one of them, Bernath, has been rewarded with a higher paying job running the agency that oversees the school that teaches privacy regulations to public affairs officers. This appears to be a Clinton DoD ratification of Bernath's violation of Ms. Tripp's privacy.

(8) Whether the plaintiff's suit is non-frivolous and brought in good faith:

Given all the evidence in this case, including the fact that FBI Director Louis Freeh said that the transfer and acquisition of the Plaintiffs' FBI files was an "egregious violation of privacy" and that the FBI had been "victimized" by the Clinton Administration while the FBI said the transfer and acquisition was "without justification,"⁽¹⁴⁶⁾ there is no question that Plaintiffs' suit is completely proper and brought in good faith.

(9) Whether the information sought is available through other discovery or from other sources:

If the IG has tried to cover-up important facts about the Tripp release without any outside help, it is likely that evidence of such a cover-up only would be with the IG. If persons outside of the IG's office tried to corrupt the IG's investigation such evidence could be with the IG and with any such persons. In either case, at this point, the logical place to begin is with the IG.

(10) The importance of the information sought to the plaintiff's case:

The Court has already recognized that "information that directly bears on the distribution of the information from Tripp's files and whether the White House played any role in the release of this information" and information that "may assist plaintiffs in establishing that some other individual within DOD besides Bernath or Bacon had contact with the White House pertaining to this matter," is relevant to Plaintiffs' case.⁽¹⁴⁷⁾ Naturally, if the Clinton Administration is attempting to cover-up the facts about the Tripp release, this is directly relevant to Plaintiffs' case because it would provide circumstantial evidence that the Clinton Administration has a consciousness of guilt about the Tripp release and covered-up information about its improper acquisition of the Plaintiffs' private FBI files.

Evidence of a Clinton Administration cover-up regarding the Tripp release is very clear. Among other things, Plaintiffs have already shown that following the Tripp release: 1) The Clinton DoD misled the public about who was involved and about whether Bacon and Bernath thought they were releasing "innocent" information about Ms. Tripp;⁽¹⁴⁸⁾ 2) Bernath deleted computer files after he knew this matter would be investigated and a search for his deleted files only will occur because of Plaintiffs' recent motion and this Court's recent Order;⁽¹⁴⁹⁾ 3) Bacon was allowed to give Bernath a new job at higher pay that gives Bernath control over the school that teaches privacy regulations to DoD public affairs officers;⁽¹⁵⁰⁾ and 4) Clinton DoJ attorneys have improperly tried to prevent Plaintiffs from learning facts about the Tripp release and its aftermath.⁽¹⁵¹⁾

The Clinton DoD IG's investigation does not exist in a vacuum. The Tripp release occurred on March 13, 1998, over four months ago. There is no legitimate reason why the IG's investigation should take so long. In that time, Plaintiffs have given the public more facts about the Tripp release than the Clinton DoD or the Clinton White House has given them. For example, in Plaintiffs' deposition of J. Lowe Davis, who Jane Mayer identified as her source for the information that Linda Tripp was arrested many years ago,⁽¹⁵²⁾ Ms. Davis testified that she received a telephone call from an investigator from the DoD,⁽¹⁵³⁾ but that it was only a "30-second conversation."⁽¹⁵⁴⁾

The facts provide every reason to believe that the Clinton White House has tried to delay and corrupt the IG's investigation so as to make the Tripp release look like an "innocent snafu" or "innocent bureaucratic mistake" with no political implications. It is likely that any whitewash by the IG or attempt to improperly influence the IG, has already had to adjust in reaction to the information uncovered by Plaintiffs through the depositions of Bacon and Bernath. This could explain the long delay by the IG. Documents related to the IG's investigation would likely show such things as the results of interviews with key players like Bacon and Bernath, the degree of thoroughness exercised by the IG, commentary in reaction to the information uncovered by Plaintiffs and evidence of improper influence by the Clinton White House and DoJ. Without examination of these documents, any corruption of the IG's investigation will succeed and Plaintiffs will lose the opportunity to develop critical evidence for their case.

2. The Government Defendants and Their Attorneys Should Pay Sanctions.

In its recent opinion regarding Bernath, the Court ordered the government defendants to pay sanctions, largely because of defense,

counsels' improper interpretations of this court's April 13, 1998 memorandum and order and the DOD letter authorizing Bernath's testimony. As discussed previously in this opinion, the interpretations advanced by counsel are simply unreasonable and resulted in the imposition of inappropriate and undue limitations on the scope of Bernath's deposition testimony and document production.⁽¹⁵⁵⁾

The same improper "interpretations" were made by the Clinton DoD and DoJ with regard to the subject subpoena. Therefore, the Court is respectfully requested to impose the same sanctions as it did in the Bernath motion.

The government attorneys' (Benjamin M. Lawsky, Esq. and Anne L. Weismann, Esq.) improper "interpretations" clearly were advanced in bad faith. It was entirely foreseeable that the Court would find their "interpretations" of its April 13^th Order improper since at an April 30, 1998, emergency hearing during the Bernath deposition, the government attorneys were put on notice that the Court rejected their narrow "interpretation" of the Court's April 13^th Order and what was relevant for this case:

THE COURT: Well, let me say this. I don't think my order means a whole lot. I did not have a specific question before me of either a motion for a protective order by Bernath, or a proffer from them. So I didn't make any Touhy balancing or any of those kinds of factors in entering that order. So I think I was a little surprised at the instructions that DoD would give based on my order. I mean, I thought under the Touhy regs that an agency would try to get a proffer of the areas that somebody was going to go into and then decide those, and they sort of bypassed that by saying, "The Judge has allowed this," as though I hadn't allowed anything else. I didn't do that in my order. . . . But I didn't try to define the universe of what Bernath might know or what the plaintiffs might want to find out from Bernath.⁽¹⁵⁶⁾

The transcript and videotape of the proceedings after the Court's emergency hearing also demonstrate a lack of good faith. Even after the Court's July 10^th Order regarding Bernath, the Clinton DoD and the Clinton DoJ attorneys have failed to give Plaintiffs the documents they clearly deserve, making it necessary for Plaintiffs to make this motion.

III. CONCLUSION.

For all of the reasons stated above, Plaintiffs respectfully request that the Court issue the same orders regarding the Clinton DoD as it did regarding Bernath, with the addition of sanctions upon the government attorneys in the form of attorneys fees, costs and such additional relief as the Court deems just and proper.

Respectfully submitted,

________________________

Larry Klayman, Esq.

DC Bar No. 334581

________________________

Allan J. Favish, Esq.

JUDICIAL WATCH, INC.

501 School Street, S.W.

Suite 725

Washington, D.C. 20024

(202) 646-5172

Attorneys for Plaintiffs

LOCAL RULE 108(m) CERTIFICATE OF COUNSEL

I certify that on August 12, 1998, I spoke by telephone to counsel for non-party U.S. Department of Defense, Anne L. Weismann, Esq., regarding this motion. She told me that she opposes the motion.

____________________

Allan J. Favish, Esq.

CERTIFICATE OF SERVICE

I hereby certify that on August 17, 1998, a true and correct copy of the foregoing Plaintiffs' Motion to Compel Further Production of Documents from the U.S. Department of Defense and for Sanctions, was served by hand delivery on the following:

Attorneys for Defendants Federal Bureau of Investigation and Executive Office of the President:

James J. Gilligan, Esq.

Elizabeth Shapiro, Esq.

David J. Anderson, Esq.

U.S. DEPARTMENT OF JUSTICE

901 E Street, N.W., 9^th Floor

Washington, DC 20004

Attorneys for Defendant Hillary Rodham Clinton:

David E. Kendall, Esq.

Marcie R. Ziegler, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, DC 20005

Attorneys for non-party U.S. Department of Defense:

Anne L. Weismann, Esq.

Benjamin M. Lawsky, Esq.

U.S. DEPARTMENT OF JUSTICE

Civil Division

Federal Programs Branch

901 E Street, N.W., Rm. 934

Washington, DC 20004

_____________________

Allan J. Favish, Esq.

1. ¹ See Jonathan Broder, "Blowback," Salon, Feb. 12, 1998, attached as Exhibit 1. Mr. Broder was dismissed by the Chicago Tribune for plagiarism. See Philip Terzian, "The Plagiarist's Salon," The Weekly Standard, May 11, 1998, attached as Exhibit 2 & "Jonathan Broder's Plagiarism of the Week," The Weekly Standard, May 18, 1998, attached as Exhibit 3.

2. ² Jonathan Broder & Harry Jaffe, "Clinton's sexual scorched-earth plan," Salon, August 5, 1998, attached as Exhibit 4.

3. ³ Id.

4. ⁴ Id.

5. ⁵ Id.

6. ⁶ See Dick Morris, "Clinton's Secret Police in Overdrive," New York Post, and accompanying articles, attached as Exhibit 5.

7. ⁷ See Secret Service WAVES Logs, attached as Exhibit 6.

8. ⁸ See House Comm. On Gov't Reform and Oversight, Investigation into the White House and Dept. of Justice on Security of FBI Background Files, H.R. Doc. No. 862, 104^th Cong., 2^nd Sess. 62-65 (1996) ("House Report"), attached as Exhibit 7.

9. ⁹ See Defendant's Response to Request #3 (showing requests by White House personnel for access to FBI background investigation files or summary reports on former Reagan and Bush Administration appointees and employees, showing the dates of the requests and the dates returned), attached as Exhibit 8.

10. ¹⁰ House Report at 55 & 59, attached as Exhibit 7.

11. ¹¹ House Report at 67-68, attached as Exhibit 7.

12. ¹² Id. at 9-10.

13. ¹³ Id. at 92-100.

14. ¹⁴ Id. at 18-55.

15. ¹⁵ Id.

16. ¹⁶ Id. at 16-18.

17. ¹⁷ See "Freeh to FBI: Beware of Active Alumni," Legal Times, March 9, 1998, attached as Exhibit 9.

18. ¹⁸ See Deposition of Terry Lenzner, Esq., at 90:22 - 91:22, 93:7-10, 94:14-20; see also President Clinton's Mot. To Intervene at 2.

19. ¹⁹ See Lenzner Depo. at 9:8; House Report at 17-18.

20. ²⁰ See Excerpt of Transcript, This Week with Sam and Cokie, February 8, 1998, at 2-3, attached as Exhibit 10.

21. ²¹ See Broder, "Blow Back," Salon, Feb. 12, 1998, at 2, attached as Exhibit 1.

22. ²² See Jonathan Broder & Harry Jaffe, "Clinton's sexual scorched-earth plan," Salon, August 5, 1998, attached as Exhibit 4.

23. ²³ See Peter Baker, "Clinton Told Jones Team He Had No Willey Notes," The Washington Post, March 29, 1998, at A1, attached as Exhibit 11.

24. ²⁴ See Dick Morris, "Releasing Tripp Dirt Was 'A Priority,'" New York Post, May 5, 1998, and accompanying articles, attached as Exhibit 5. See also Jay Nordlinger, "Bacon Tripps Up," The Weekly Standard, May 18, 1998, attached as Exhibit 12.

25. ²⁵ Deposition Transcript of Lanny Davis ("Davis Depo.") at 202:22 - 206:1; 236:2-12; 239:5-18.

26. ²⁶ Davis Depo. at 237:17 - 238:22.

27. ²⁷ Davis Depo. at 250:20 - 252:2.

28. ²⁸ Davis Depo. at 240:11 - 242:3.

29. ²⁹ See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 6-7 (D.D.C. April 13, 1998).

30. ³⁰ See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 6-7 (D.D.C. April 13, 1998).

31. ³¹ Deposition Transcript of Clifford Bernath ("Bernath Depo.") at 270:9-10, 319:19 - 320:16.

32. ³² Bernath Depo. at 319:19 - 320:16.

33. ³³ Bernath Depo. at 321:2-7.

34. ³⁴ See Alexander v. FBI, C.A. 96-2123, Transcript of Motions Hearing Before the Honorable Royce C. Lamberth, United States District Judge, at 43:1 - 45:5 (D.D.C. April 30, 1998), attached as Exhibit 13.

35. ³⁵ Deposition Transcript of Kenneth Bacon ("Bacon Depo.") at 195:4 - 196:12.

36. ³⁶ Bacon Depo. at 211:4-22.

37. ³⁷ Bernath Depo. at 319:19 - 320:16.

38. ³⁸ Bacon Depo. at 236:6-8.

39. ³⁹ See Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

40. ⁴⁰ Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

41. ⁴¹ See Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

42. ⁴² See Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

43. ⁴³ Bacon Depo. at 354:14-20.

44. ⁴⁴ Bacon Depo. at 362:20 - 363:15.

45. ⁴⁵ Jeff Leen, "Defense Dept. Probes Release of Tripp Data," The Washington Post, March 14, 1998, at A15, attached as Exhibit 15.

46. ⁴⁶ Bacon Depo. at 195:20 - 196:12.

47. ⁴⁷ Bacon Depo. at 223:1-9.

48. ⁴⁸ Bernath Depo. at 231:3 - 232:11.

49. ⁴⁹ Bernath Depo. at 251:2-6.

50. ⁵⁰ Bernath Depo. at 301:1-20.

51. ⁵¹ Deborah Orin & Brian Blomquist, "Pentagon Admits Leaking Tripp's Personnel Files," New York Post, March 18, 1998, attached as Exhibit 16.

52. ⁵² Bacon Depo. at 296:20 - 298:7.

53. ⁵³ Deborah Orin & Brian Blomquist, "Pentagon Admits Leaking Tripp's Personnel Files," New York Post, March 18, 1998, attached as Exhibit 16.

54. ⁵⁴ Deborah Orin & Brian Blomquist, "Pentagon Admits Leaking Tripp's Personnel Files," New York Post, March 18, 1998, attached as Exhibit 16.

55. ⁵⁵ See Deborah Orin & Brian Blomquist, "Pentagon Admits Leaking Tripp's Personnel Files," New York Post, March 18, 1998, attached as Exhibit 16.

56. ⁵⁶ Jeff Leen, "Defense Dept. Probes Release of Tripp Data," The Washington Post, March 14, 1998, at A15, attached as Exhibit 15.

57. ⁵⁷ Nat Hentoff, "Linda Tripp's Privacy," The Washington Post, March 28, 1998, at A15, attached as Exhibit 17.

58. ⁵⁸ Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

59. ⁵⁹ Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

60. ⁶⁰ Bill Sammon, "Tripp leak violated policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 18; Department of Defense, "Privacy Program," DoD 5400.11-R, (August 1983), attached as Exhibit 19 (excerpts).

61. ⁶¹ Bill Sammon, "Tripp leak violated policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 18 (emphasis added).

62. ⁶² Bernath Depo at 388:2-3.

63. ⁶³ See Bacon Depo. at 385:6 - 388:3.

64. ⁶⁴ Bill Sammon, "Tripp leak violated policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 18.

65. ⁶⁵ Bacon Depo. at 387:7-9.

66. ⁶⁶ Bernath Depo. at 26:8-11.

67. ⁶⁷ Bernath Depo. at 148:21 - 149:8, 246:15 - 247:5.

68. ⁶⁸ Bernath Depo. at 148:21 - 149:21.

69. ⁶⁹ Bernath Depo. at 337:13 - 338:7.

70. ⁷⁰ See DoD News Briefing, January 27, 1998, at 9-10, attached as Exhibit 20.

71. ⁷¹ Bernath Depo. at 151:14 - 18.

72. ⁷² Bernath Depo. at 151:19 - 152:1, 153:11-15.

73. ⁷³ As the Court noted: "Circumstantial evidence is defined as 'proof that does not actually assert or represent the fact to be proven but from which a factfinder can infer an increased probability that the fact exists." Mueller & Kirkpatrick, Evidence � 4.1 (1995). Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 6-7 (D.D.C. April 13, 1998).

74. ⁷⁴ Bernath Depo. at 189:13-19.

75. ⁷⁵ Bernath Depo. at 190:18-22, 338:20-342:9.

76. ⁷⁶ Bernath Depo. at 169:6-10.

77. ⁷⁷ Bernath Depo. at 189:13 - 190:17, 191:15 - 192:3; 361:12 - 366:2.

78. ⁷⁸ Bernath Depo. at 258:16 - 259:5. Mr. Carlson works for The Weekly Standard.

79. ⁷⁹ Bernath Depo. at 259:14-17.

80. ⁸⁰ Bernath Depo. at 261:11-14.

81. ⁸¹ Bernath Depo. at 262:1-2.

82. ⁸² Bernath Depo. at 354:7 - 355:6.

83. ⁸³ Bernath Depo. at 249:19 - 251:11.

84. ⁸⁴ Bernath Depo. at 262:1-2.

85. ⁸⁵ Deposition of Terry Good ("Good" Depo.") at 273:22 - 274:13.

86. ⁸⁶ See Bill Sammon, "White House combed Tripp file as scandal was breaking," The Washington Times, at A10, July 17, 1998, attached as Exhibit 21.

87. ⁸⁷ See Bill Sammon, "White House combed Tripp file as scandal was breaking," The Washington Times, at A10, July 17, 1998, attached as Exhibit 21.

88. ⁸⁸ See Alexander v. FBI, C.A. 96-2123, Subpoena in a Civil Case to Records Custodian, Department of Defense, Exhibit A, at 18 (D.D.C. April 14, 1998), attached as Exhibit 22.

89. ⁸⁹ Letter from Benjamin M. Lawsky to Larry Klayman, at 1-2, April 30, 1998, attached as Exhibit 23.

90. ⁹⁰ Letter from Benjamin M. Lawsky to Larry Klayman, at 1-2, April 30, 1998, attached as Exhibit 23.

91. ⁹¹ Letter from Benjamin M. Lawsky to Larry Klayman, at 2, April 30, 1998, attached as Exhibit 23.

92. ⁹² United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

93. ⁹³ Letter from Benjamin M. Lawsky to Larry Klayman, at 2-3, April 30, 1998, attached as Exhibit 23.

94. ⁹⁴ See Exhibits to Deposition of Kenneth Bacon (May 15, 1998) at Exhibit 5 (Letter from Benjamin M. Lawsky to Larry Klayman, May 6, 1998; Privilege Log and Documents).

95. ⁹⁵ Letter from Benjamin M. Lawsky to Larry Klayman, at 1-2, May 6, 1998 (Exhibits to Deposition of Kenneth Bacon (May 15, 1998) at Exhibit 5).

96. ⁹⁶ Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 36 (D.D.C. July 10, 1998).

97. ⁹⁷ Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 37 (D.D.C. July 10, 1998).

98. ⁹⁸ See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 36-37 (D.D.C. July 10, 1998).

99. ⁹⁹ In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997) (emphasis added).

100. ¹⁰⁰ See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 35-39 (D.D.C. July 10, 1998); Alexander v. FBI, C.A. 96-2123, Order (D.D.C. July 10, 1998).

101. ¹⁰¹ See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 36-37 (D.D.C. July 10, 1998).

102. ¹⁰² Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 22 (D.D.C. July 27, 1998).

103. ¹⁰³ Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 36 (D.D.C. July 10, 1998).

104. ¹⁰⁴ In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997), quoting Texaco Puerto Rico, Inc. v. Dept. of Consumer Affairs, 60 F.3d 867, 885 (1^st Cir. 1995).

105. ¹⁰⁵ In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997) (emphasis added).

106. ¹⁰⁶ House Report at 67-68, attached as Exhibit 7.

107. ¹⁰⁷ Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

108. ¹⁰⁸ See Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

109. ¹⁰⁹ Bacon Depo. at 354:14-20.

110. ¹¹⁰ Bill Sammon, "Tripp leak violated policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 18; Department of Defense, "Privacy Program," DoD 5400.11-R, (August 1983), attached as Exhibit 19 (excerpts).

111. ¹¹¹ Bill Sammon, "Tripp leak violated policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 18 (emphasis added).

112. ¹¹² Jeff Leen, "Defense Dept. Probes Release of Tripp Data," The Washington Post, March 14, 1998, at A15, attached as Exhibit 15.

113. ¹¹³ See Bacon Depo. at 195:20 - 196:12, 223:1-9; Bernath Depo. at 231:3 - 232:11.

114. ¹¹⁴ See pages 10-11, supra.

115. ¹¹⁵ Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

116. ¹¹⁶ Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

117. ¹¹⁷ Bill Sammon, "Tripp leak violated policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 18.

118. ¹¹⁸ See Bacon Depo. at 385:6 - 388:3.

119. ¹¹⁹ Bacon Depo. at 387:7-9.

120. ¹²⁰ In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997) (emphasis added).

121. ¹²¹ See United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603, 606 (D.D.C. 1980).

122. ¹²² United States v. Costanzo, 625 F.2d 465, 468 (3d Cir. 1980) (quotations and citations omitted).

123. ¹²³ Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 618 (D.C. Cir. 1997).

124. ¹²⁴ See United States v. Sayan, 968 F.2d 55, 63 (D.C. Cir. 1992) (citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)).

125. ¹²⁵ Tax Analysts, 117 F.3d at 618 (citing In re Sealed Case, 737 F.2d at 99).

126. ¹²⁶ Tuite v. Henry, 98 F.3d 1411, 1413 (D.C. Cir. 1996).

127. ¹²⁷ Alexander v. FBI, C.A. 96-2123, Motion of Defendant Executive Office of the President for a Protective Order at 6 (D.D.C. July 23, 1998).

128. ¹²⁸ Tuite v. Henry, 98 F.3d 1411, 1417 (D.C. Cir. 1996).

129. ¹²⁹ Tuite v. Henry, 98 F.3d 1411, 1417 (D.C. Cir. 1996) (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973).

130. ¹³⁰ Kerr v. United States Dist. Court for Northern Dist., 426 U.S. 394, 48 L.Ed.2d 725, 734 (1976); Sirmans v. South Miami, 86 F.R.D. 492, 495-496 (S.D. Fla. 1980); 2 C. Mueller & L. Kirkpatrick, Federal Evidence � 226, at 578 (2^nd ed. 1994).

131. ¹³¹ Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

132. ¹³² Bernath Depo. at 270:9-10, 319:19 - 320:16.

133. ¹³³ See Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

134. ¹³⁴ Bacon Depo. at 354:14-20.

135. ¹³⁵ Bill Sammon, "Tripp leak violated policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 18; Department of Defense, "Privacy Program," DoD 5400.11-R, (August 1983), attached as Exhibit 19 (excerpts).

136. ¹³⁶ Bill Sammon, "Tripp leak violated policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 18 (emphasis added).

137. ¹³⁷ Jeff Leen, "Defense Dept. Probes Release of Tripp Data," The Washington Post, March 14, 1998, at A15, attached as Exhibit 15.

138. ¹³⁸ See Bacon Depo. at 195:20 - 196:12, 223:1-9; Bernath Depo. at 231:3 - 232:11.

139. ¹³⁹ See pages 10-11, supra.

140. ¹⁴⁰ Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

141. ¹⁴¹ Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

142. ¹⁴² Bill Sammon, "Tripp leak violated policy at Pentagon," The Washington Times, June 8, 1998, attached as Exhibit 18.

143. ¹⁴³ See Bacon Depo. at 385:6 - 388:3.

144. ¹⁴⁴ Bacon Depo. at 387:7-9.

145. ¹⁴⁵ In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997) (emphasis added).

146. ¹⁴⁶ House Report at 67-68, attached as Exhibit 7.

147. ¹⁴⁷ See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 26-27 (D.D.C. July 10, 1998).

148. ¹⁴⁸ See pages 7-10, supra.

149. ¹⁴⁹ See pages 10-11, supra.

150. ¹⁵⁰ See pages 11-12, supra.

151. ¹⁵¹ See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion (D.D.C. July 10, 1998).

152. ¹⁵² See Jane Mayer, "For the Record," The New Yorker, June 8, 1998, at 34, attached as Exhibit 24.

153. ¹⁵³ Deposition Transcript of J. Lowe Davis ("Lowe Davis Depo.") at 144:4 - 154:4.

154. ¹⁵⁴ Lowe Davis Depo. at 149:9-10.

155. ¹⁵⁵ See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 44 (D.D.C. July 10, 1998).

156. ¹⁵⁶ Alexander v. FBI, C.A. 96-2123, Transcript of Motions Hearing Before the Honorable Royce C. Lamberth, United States District Judge, at 32:8-19 (D.D.C. April 30, 1998), attached as Exhibit 13.