CARA LESLIE ALEXANDER, et al.,
OF INVESTIGATION, et al.,
) Civil No. 96-2123/97-1288 (RCL)
JOHN MICHAEL GRIMLEY, et al.,
OF INVESTIGATION, et al.,
PLAINTIFFS' OPPOSITION TO UNITED STATES' MOTION FOR LIMITED INTERVENTION AND TO STAY SUBPOENA
ISSUED TO LINDA R. TRIPP
Larry Klayman, Esq.
DC Bar No. 334581
Paul J. Orfanedes, Esq.
DC Bar No. 429716
Allan J. Favish, Esq.
JUDICIAL WATCH, INC.
501 School Street, S.W., Ste. 725
Washington, DC 20024
Attorneys for Plaintiffs
Plaintiffs, by counsel, respectfully submit this opposition to the Motion of the United States for Limited Intervention and to Stay Subpoena Issued to Linda R. Tripp.
I. Introduction and Factual Background.
At its heart, the independent counsel staff's motion is flawed factually, legally and procedurally. For instance, in summarizing the factual underpinning of its request, the independent counsel staff incorrectly states " . . . plaintiffs' actions reveal that Ms. Tripp is not a central witness to their case." See Motion at 9. Nothing could be further from the truth, and for this reason alone the motion must fail.
Linda Tripp is a material witness and a member of the prospective class of plaintiffs. Plaintiffs' sources and published reports demonstrate just how important a witness she is. She was first identified with the "Filegate" controversy, long before her name reached national prominence in the Clinton-Lewinsky scandal, which broke in January of this year. First, having worked for Bernard Nussbaum, the White House Counsel who requisitioned the infamous FBI files, Ms. Tripp is in a bird's-eye position to know the origins of "Filegate." She also worked for Assistant White House Counsel William Kennedy, who, according to Plaintiffs' prior, limited discussions with Ms. Tripp herself, was observed with the FBI files of Republicans in his office.(1)
Further, Ms. Tripp has been reported by Lucianne Goldberg, a literary agent and friend, as having "witnessed a White House secretary loading up FBI files on a computer" in the White House Counsel's Office, obviously referring to her tenure in that office. See "Tripp: Telling the Truth's Very Easy," The New York Post, July 1, 1998, attached as Exhibit 2. Ms. Tripp also told Tony Snow, a nationally syndicated columnist for The Detroit News and a commentator for Fox News Channel, that:
she was shaken by White House dishonesty during investigations of Vince Foster's death, Filegate, Travelgate, and reports of drug abuse among administration employees. "It's chilling," she says, "to watch high government officials lie under oath."
See "Tripp: 'Fear is a magnificent motivator,'" The Detroit News, Monday, August 3, 1998, attached as Exhibit 3 (Emphasis added).(2)
Finally, The New York Times reported that Ms. Tripp saw a document evidencing Hillary Rodham Clinton's direct involvement in the firings at the White House Travel Office, an allegation Ms. Clinton has weakly denied. See "Starr Finally Confronts His Target," The New York Times, August 17, 1998, attached as Exhibit 5. Filegate is related to and was spawned by "Travelgate," as it was this latter scandal which uncovered the misuse of FBI files against the fired workers of the White House Travel Office. See House Report at 4-8, attached as Exhibit 7 to Plaintiffs' motions to compel testimony and documents from Kenneth Bacon and the U.S. Department of Defense, both filed on August 18, 1998. Mrs. Clinton is alleged, initially by Dick Morris and then others, to have similarly been the mastermind of Filegate. See House Report at 27-28, attached as Exhibit 7 to Plaintiffs' motions to compel testimony and documents from Kenneth Bacon and the U.S. Department of Defense, both filed on August 18, 1998. Indeed, the requisition of FBI files was a likely modus operandi of the scheme to smear Travel Office employees after they were fired.
Finally, discovery has uncovered that Ms. Tripp's file was among the thousand or so FBI dossiers illegally obtained by the White House Counsel's Office. See Defendant's Response to Request #3, attached as Exhibit 6. The acquisition of her file occurred approximately one year after Ms. Tripp began to work for Mr. Nussbaum - underscoring that there was no legitimate purpose for its removal from the FBI. It is likely that the White House Counsel already had begun to view Ms. Tripp as a "problem," and wanted to investigate her. Ms. Tripp believes that her FBI file was later misused, according to Ms. Goldberg. See Excerpt from "Why Was Tripp Wired," Insight on the News, Monday, August 17, 1998, attached as Exhibit 7. Shortly thereafter, she was removed from her position at the White House and assigned to the Pentagon. That Ms. Tripp became a "problem" for the White House is highlighted by her public statement immediately following the last day of her testimony before the grand jury in the Lewinsky and Jones matters. Standing in front of a bank of reporters on the courthouse steps, she revealed publicly that she "became aware between 1993 and 1997 of actions by high government officials that may have been against the law." See "Text of Linda Tripp's Remarks," reprinted in The Washington Post, attached as Exhibit 8. "For that period of nearly five years," Ms. Tripp stated, "the things I witnessed concerning several different subjects made me increasingly fearful that this information was dangerous, very dangerous to possess." Id.
In sum, Ms. Tripp is a key material witness and putative plaintiff. She was uniquely positioned to witness the illegalities of Filegate, and can provide a roadmap of what occurred in the White House Counsel's Office, the "ground zero" of the scandal.(3) Unlike other White House witnesses, Ms. Tripp is unlikely to have "lost" her memory. Now that Plaintiffs are on the verge of commencing discovery of the chief protagonists of the Filegate scandal - having received just recently the latest, albeit eleven (11) months tardy, production of documents from the FBI(4) (see Letter from Julia Fayngold, August 21, 1998, attached as Exhibit 10) - it is logical and cost-effective to take Ms. Tripp's testimony at this time. Ms. Tripp is not only in a position to know of the core facts of Filegate, she also is in a position to serve as a "tour guide" of who and what else are involved, for purposes of further discovery and ultimate trial.
Plaintiffs also desire to take Ms. Tripp's testimony at this time because they fear that if further delay occurs, she may not be available later. Having been subjected to threats against her life and children, she could leave the jurisdiction, or even worse could happen. See "Tripp Received Death Threats After Lewinsky Controversy Broke," AllPolitics.com (CNN/Time), May 27, 1998, attached as Exhibit 11; see also "Was Willey Threatened?" ABCNews.com, June 18, 1998. This is one reason why Plaintiffs' counsel contacted counsel for Ms. Tripp months ago, and proposed expeditious discovery. They were told that Ms. Tripp would be free to talk once she finished her testimony before the grand jury in the Lewinsky and Jones matters. Shortly after her grand jury testimony was completed on July 28, 1998, Plaintiffs' counsel again contacted counsel for Ms. Tripp to arrange for her deposition. While Ms. Tripp's counsel was very cooperative initially, for whatever reason Plaintiffs' counsels' recent calls were not returned and the formal service of a subpoena became necessary. See August 21, 1998 Letter from Larry Klayman, attached as Exhibit 14; Tripp Subpoena, attached as Exhibit 22. In so doing, taking into account the discussions Plaintiffs' counsel had with counsel for Ms. Tripp, the request for documents contained in the subpoena was narrowed to take into account the previously expressed concerns of the witness. Counsel for Ms. Tripp now confirm that she will be cooperative, and to this end, the deposition was rescheduled and delayed over one (1) week, for a mutually convenient date for her, her counsel and Defendants -- at the request of both Ms. Tripp and the Justice Department.(5)
Prior to serving the subpoena, out of courtesy, Plaintiffs' counsel phoned the independent counsel, Kenneth Starr. See Telephone Logs, attached as Exhibit 13. However, no return call or correspondence was received.
When a process server was then sent to deliver the subpoena to Ms. Tripp, the server was told by federal agents employed by the independent counsel staff that he could not effect service -- despite his having advised the agents in advance, who were at Ms. Tripp's residence, of the nature of his proposed actions. See Exhibit 14. As a result, Plaintiffs' counsel again phoned the independent counsel staff, but again did not receive a return call. See Exhibit 13. Later, when the process server was instructed to reattempt service that same day, one of Ms. Tripp's counsel, who also was present, correctly accepted service for her on August 20, 1998.
The first Plaintiffs heard from the independent counsel staff was when, on Friday, August 28, 1998, their counsel received the Motion of the United States for Limited Intervention and to Stay Subpoena Issued to Linda Tripp in late morning -- over a week after the subpoena had initially been served in the presence of the independent counsel staff's agents. Prior to receiving the motion, Ms. Tripp had reaffirmed her desire to cooperate by being deposed. See Bill Sammon, "Tripp Subpoenaed to Answer Questions about 'Filegate,'" The Washington Times, August 25, 1998, attached as Exhibit 15. Given the lack of return phone calls, and the delay of over one week, Plaintiffs' counsel was very surprised to receive the independent counsel staff's motion shortly before a weekend, and only five (5) business days before the planned testimony on September 4, 1998.
The motion filed by the independent counsel staff does not conform with the Local Rules of this Court, and is procedurally improper and defective. Not only was there no Local Rule 108(m) consultation, a prerequisite which this Court has strictly enforced prior to filing motions, it was not properly filed under seal, as the required , accompanying motion was not made. Nor does it conform with Local Rule 302, which sets forth the substantive criteria for filing materials under seal. Last but not least, the independent counsel staff has not moved to shorten time, given the delay in its filing the motion and the scheduled deposition of September 4, 1998. Apparently, the independent counsel staff harbors the belief that by simply filing its motion, a "monkey wrench" will be thrown into the September 4, 1998 deposition. This Court has made it abundantly clear, following established case law, that, absent a court order, discovery is not stayed.
While Plaintiffs are thus under no obligation to respond early, and could otherwise proceed with the deposition of Ms. Tripp on September 4, 1998 -- four (4) days before Plaintiffs would otherwise have to respond to the independent counsel staff's motion -- out of respect for this Court, and its processes, as well as the independent counsel himself, counsel have worked all weekend and are filing this opposition within one (1) business day of service to allow time for the Court to rule prior to Ms. Tripp's testimony.
Importantly, the independent counsel staff will not issue any indictments as a result of its "Filegate" investigation, but, admittedly, is preparing a report to Congress only. In fact, the independent counsel staff has stated that it will not indict the primary actor in "Filegate," D. Craig Livingstone:
Similarly, Starr has not formally closed his investigation into why and how the White House obtained FBI files on former Republican White House staffer. While Starr has not issued a report about his findings, a lawyer for Craig Livingstone, the former White House director of personnel security, said yesterday that Starr's office told him Livingstone was cleared . . . "They told us last May that they had no intention of taking any action against Craig," Livingstone's attorney, Randall Turk, said in an interview .
Starr's aides declined to comment about Livingstone and said the Filegate probe is still open. They will not discuss it until the final report is issued.
See "Starr Keeps Momentum Going in Investigation of Clinton," The Boston Globe, April 3, 1998, attached as Exhibit 23 (Emphasis added). In addition, Justice Department guidelines preclude the indictment of political figures during an election year. The independent counsel staff has pledged to follow this guideline as the 1998 election cycle approaches. See "Starr's Mission -- II," The Wall Street Journal, August 31, 1998, attached as Exhibit 24 ("Unlike the still-garrulous Lawrence Walsh, who indicted Caspar Weinberger four days before the 1992 Presidential election, Mr. Starr has pledged to follow this guideline."). Thus, it is clear that the independent counsel staff is preparing only a report to Congress, not indictments, and that even if it was contemplating any indictments, they will not be forthcoming for a substantial period of time.
Nonetheless, it has never been the intent or practice of Plaintiffs to impede the independent counsel staff's investigations in any way. Indeed the independent counsel staff has previously subpoenaed evidence obtained by Judicial Watch in this case concerning the illegal release of Privacy Act materials by Clinton Administration political appointees. See Subpoena from independent counsel, attached as Exhibit 16. In fact, it would appear the independent counsel staff's investigation of "Filegate" is still at an early stage, if indeed any real investigation is being conducted at all. See William Safire, "Unclosed Filegate, On a burner too far back," The New York Times, July 23, 1998, attached as Exhibit 17.(6) Judicial Watch's discovery has disclosed that key "Filegate" witnesses recently deposed by the Plaintiffs have yet to be questioned by the independent counsel staff about the matter. Thomas "Mack" McLarty, the White House Chief of Staff during the time period the FBI files were obtained unlawfully, testified that he was never questioned about Filegate before a grand jury:
[By Plaintiffs' Counsel] But you never answered questions concerning Filegate before a Grand Jury, to the best of your knowledge.
[By Mr. McLarty] To the best of my knowledge and memory, that is correct.
See McLarty Depo. at 47.
Terry W. Good, Director of the White House Office of Records Management, stored the FBI files for Craig Livingstone. See Good Depo. at 296-301. However, Mr. Good testified that he has "never been interviewed by anybody" from the independent counsel's office. See Good Depo. at 344.
Earlier this year, the independent counsel staff questioned Defendant Hillary Rodham Clinton for only about nine (9) minutes on the subject of "Filegate." According to Mandy Grunwald, even Mrs. Clinton remarked about the conduct of the independent counsel staff in questioning her so briefly. Ms. Grunwald testified that Mrs. Clinton thought the independent counsel staff "came to the White House for what was very little business." See Grunwald Depo. at 138.
Ironically, the independent counsel staff never before sought to impede Plaintiffs' independent case "investigation" and vindication of their rights, as Ms. Tripp is not the first material witness to have appeared both before Judicial Watch and before the grand jury. Previously, Harold Ickes, Clifford Bernath, Kenneth Bacon, George Stephanopoulos and others have testified in both this case and before the Clinton-Lewinsky grand jury.
Indeed, the independent counsel staff's investigation has benefitted from Plaintiffs' discovery. In the course of its discovery, Plaintiffs have uncovered evidence of possible obstruction of justice, violations of the Privacy Act, and other illegalities and crimes. Informed through press reports of Judicial Watch's findings, the independent counsel staff then subpoenaed Plaintiffs' evidence. See Exhibit 16. Additionally, Plaintiffs also have uncovered more evidence of possible crimes involving the misuse of government files to destroy and obstruct members of the staff of the independent counsel, and have delivered to the Court tape recordings made by James Carville in this regard. In addition, Plaintiffs have uncovered that the White House routinely sends documents about Judge Kenneth Starr -- likely from government files protected by the Privacy Act -- to James Carville and others, for likely dissemination to media friends, such as Salon Magazine and other pliant reporters and talk show hosts. (Last week, even Democratic Congressman Paul McHale, who called for Mr. Clinton's resignation, was smeared with information likely obtained from a White House file.) Plaintiffs also uncovered that the White House Counsel's Office maintained and disseminated to the media files on the independent counsel and others, in further likely violation of the Privacy Act, among other civil and criminal violations. See Lanny Davis Depo. at 204. In short, Judicial Watch has found a widespread pattern of Privacy Act violations by the Clinton Administration that goes beyond FBI files to the misuse of government files in general.
Plaintiffs also have uncovered more evidence of illegalities based upon the testimony and documents of Harold Ickes. In fact, Mr. Ickes implicated himself, President Clinton and others in possible obstruction of justice in the independent counsel staff's "Filegate" investigation. After it was publicly reported that Dick Morris had told Sherry Rowlands that Mrs. Clinton was the "mastermind" of "Filegate," Mr. Morris lamely tried to recant in having any independent knowledge of Mrs. Clinton's role. Rather, he claimed that his comments were based on polling data which reflected a public perception that Mrs. Clinton was behind the "Filegate" scandal. Consequently, the independent counsel staff subpoenaed the polling data. At his Judicial Watch deposition, Mr. Ickes testified to an effort to delay production of this polling data until after the 1996 elections. See Ickes Depo. at 386-436 and Ickes Depo. Exhibit 11. Subsequent to his deposition, and after further press reports about Judicial Watch's findings, Mr. Ickes was, not coincidentally, called to testify before the grand jury. Thus, Plaintiffs have not hindered the independent counsel staff's investigation.
In this context, the belated motion of the independent counsel appears to be more a reflexive, overly protective reaction by members of his staff, than a factually or legally thought out approach to the law and past practice. Indeed, while Judicial Watch has been publicly supportive of Judge Kenneth Starr -- who has thus far suffered from even sleazier vilification and smear tactics than has Plaintiffs' counsel -- because the independent counsel staff has already acquiesced in Ms. Tripp's rights, and her surrogates' rights, to speak publicly about her testimony on many occasions, Plaintiffs are at a loss to explain his staff's actions in this attempt to prevent her "free speech" in a separate civil suit.(7) This is particularly so, given that the independent counsel staff has concluded Ms. Tripp's testimony before the grand jury and is now reportedly preparing a report for Congress that is expected to focus narrowly on the Lewinsky and Jones matters. See Clinton's Tight Spot," ABCNews.com, August 9, 1998, attached as Exhibit 19. No indictments are reportedly planned for the Lewinsky and Jones matters, and Congress will likely make Ms. Tripp's sworn grand jury testimony public in any event.(8) In short, the motion of the independent counsel staff makes no sense procedurally or legally.
A. The Independent Counsel Staff's Motion is Procedurally Defective.
The independent counsel staff's motion to intervene and for a limited stay is procedurally defective in at least three (3) ways, all of which demonstrate that it is not properly before the Court. The motion should therefore be summarily and forthwith denied.
First, in the past, this Court has strictly upheld the procedural requirements of Local Rule 108(m) in filing any non-dispositive motion. Local Rule 108(m) requires that, before any non-dispositive motion is filed, the moving party shall discuss the motion with opposing counsel to determine whether there is any opposition to the relief sought and, if so, to attempt to narrow the areas of disagreement. The moving party is also required to certify in its moving papers that the required conference took place. The independent counsel staff did not undertake the required conference. In fact, as a courtesy, Plaintiffs' counsel attempted to contact the independent counsel staff before scheduling Ms. Tripp's deposition, but Plaintiffs' counsel's telephone calls were not returned. The motion should be denied for this reason alone.
Second, the independent counsel staff failed to request that the Court shorten the time to respond to its motion. Under Local Rule 108(b), any opposition to a motion can be filed up to eleven (11) days after service. The independent counsel staff filed its motion on Friday, August 28, 1998. Thus, Plaintiffs have until Tuesday, September 8, 1998 in which to file their opposition. Ms. Tripp's deposition is scheduled for Friday, September 4, 1998. Because of the failure to shorten the time in which to respond, the motion will not be ripe for review until after the deposition has taken place.
In this regard, Plaintiffs note that Ms. Tripp was served with the subpoena duces tecum on August 20, 1998. The independent counsel staff was well aware of this fact, because federal marshals obviously posted at Ms. Tripp's home turned away Plaintiffs' process server when Plaintiffs attempted to serve her. Ms. Tripp's attorney agreed to accept service later that same day. Consequently, the independent counsel staff knew of the subpoena for at least one (1) week before filing its motion and tactically served it on Plaintiffs' counsel without prior notice on the morning of Friday, August 29, 1998, right before the weekend.
Third, the independent counsel staff has attempted to file its motion under seal. The independent counsel staff did not move for leave to file its motion under seal, but purports to comply with Local Rule 302 governing the sealing of motions and other papers concerning matters before a grand jury. Local Rule 302 states, in pertinent part:
A motion or application filed in connection with a grand jury subpoena or other matter occurring before a grand jury, all other papers filed in support of or in opposition to such a motion or application, and all orders entered by the Court in connection therewith, shall be filed under seal. Such a motion or application shall be filed a Miscellaneous case number . . . .
Local Rule 302 (Emphasis added). Clearly, this is not a motion or application filed in connection with a grand jury subpeona or other matter occurring before a grand jury. It concerns a subpoena duces tecum served in a civil matter. The independent counsel staff's motion was not assigned a miscellaneous case number, but was filed in Plaintiffs' civil action. It should not be under seal, and, consequently, is not properly before the Court. Because of this procedural irregularity, Plaintiffs submit that the independent counsel staff may be attempting to shield from the media the fact that it is seeking to impede an on-going civil matter of great importance to the public, much as it unsuccessfully tried to unilaterally stop discovery in Ms. Paula Corbin Jones' civil lawsuit against President Clinton.
Because the independent counsel staff (which is not a party to this action, but seeks to intervene) has not satisfied the procedural prerequisites for its motion, it is not properly before the Court. For this reason alone, the motion must be summarily and immediately denied, and the entire matter must, respectfully, be unsealed at this time.
B. Fed.R.Crim.P. 6(e) Does Not Prevent Ms. Tripp From Testifying.
Plaintiffs' counsel will not seek to elicit information about what questions Ms. Tripp was asked before the grand jury, or how she responded. Plaintiffs' counsel will not ask Ms. Tripp about what documents she may have produced to the grand jury either. Rather, Plaintiffs' counsel's questions will, naturally, focus on the underlying facts of what she witnessed while working for the Clinton Administration. Because Ms. Tripp was uniquely positioned to witness the illegalities of the "Filegate" scandal, and because she is the only witness to come forward and testify forthrightly, unlike the many White House witnesses who claim to have no memory of key events, it is likely that she will be able to provide Plaintiffs with a "road map" for further discovery and, ultimately, for trial. Deposing Ms. Tripp at this time is thus not only logical, it is cost-effective as well, as it will allow Plaintiffs to focus their discovery efforts as they now embark upon depositions of more of the key actors in "Filegate." This will streamline further discovery.
Nonetheless, Rule 6(e) of the Federal Rules of Criminal Procedure does not prevent Ms. Tripp from testifying at her upcoming deposition, or from making any other public comments she might wish to make about what she witnessed while working at the Clinton White House concerning "Filegate," or any other matter. Rule 6(e) prevents only the following narrow group of persons from disclosing information about matters that occur before a grand jury: the grand jurors themselves, interpreters, stenographers, operators of any recording devices, typists who transcribe recorded testimony, attorneys for the government, or other government support personnel. Fed.R.Crim.P. 6(e)(2).
In addition, as this Court held in addressing D. Craig Livingstone's bogus claims that Rule 6(e) prevented Plaintiffs from obtaining documents he had produced to the grand jury: "[W]hen testimony or data is sought for its own sake . . . rather than to learn what took place before the grand jury, it is not a valid defense to disclosure that the same information was revealed to a grand jury or that the same documents had been, or were presently being, examined by a grand jury." See July 27, 1998 Memorandum and Order at 13, quoting, U.S. v. Interstate Dress Carriers, Inc., 280 F.2d 52, 53 (2d Cir. 1960); see also, id., at 8. This Court also held that "no per se rule exists against disclosure of any and all information reaching the grand jury" (id.,at 8, citing, Senate of Puerto Rico v. U.S. Dept. of Justice, 823 F.2d 574, 583 (D.C. Cir. 1987) and "Rule 6(e) does not require that 'a veil of secrecy be drawn over all matters occurring in the world that happen to be investigated by a grand jury.'" Id., at 8, quoting , SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980). Most importantly, Rule 6(e) does not prohibit a grand jury witness from disclosing his or her own testimony. Senate of Puerto Rico, 823 F.2d at 582 n. 23. Rule 6(e) itself clearly states, "No obligation of secrecy may be imposed on any person except in accordance with this rule." Fed.R.Crim.P. 6(e)(1). Clearly, Ms. Tripp has an absolute right to disclose all she knows about "Filegate" and related issues.
Given this absolute right, it is mere unsupported speculation for the independent counsel staff to try to assert that its investigation will be harmed if Ms. Tripp's deposition goes forward. Regardless of whether the deposition goes forward, Ms. Tripp still could go on television and tell the world everything she witnessed and exactly what happened inside the grand jury during her testimony. Ms. Tripp has, in fact, repeatedly disclosed information about "Filegate" and related issues to the media both directly and through others. She made a public statement on January 31, 1998. She has had lengthy conversations with Tony Snow, a syndicated columnist for The Detroit News and political commentator for Fox New Channel. In fact, Fox New Channel has touted these public conversations with Ms. Tripp, in a full page advertisement in The Washington Times and other newspapers, as a reason for viewers to "tune in." See Exhibit 4. Ms. Tripp has also disclosed information through Ms. Lucianne Goldberg, as well as her neighbor, Jennifer Grossman, who has become a talk show "star" based on her surrogate status on behalf of Ms. Tripp in revealing Ms. Tripp's grand jury testimony and other information. At the close of her grand jury testimony, Ms. Tripp herself gave a lengthy statement to the media in which she described how she witnessed repeated instances of unlawful behavior by Clinton White House personnel from 1993 until 1997 and was fearful about possessing such information. She is reportedly negotiating with CBS about an appearance on its Sunday evening news magazine "60 Minutes." Regardless of whether the deposition goes forward, Ms. Tripp has given every indication that she will continue to tell her story publicly. The independent counsel staff has not inhibited these public statements from Ms. Tripp and her friends. Indeed, many commentators have opined that they were helpful to the independent counsel, given the Administration's unfair attacks on him for allegedly having "wasted $40 million dollars of taxpayers' money and having strung out his investigation for over four (4) years without 'results.'"
Consequently, the only real effect of staying Ms. Tripp's deposition would be to deny Plaintiffs the unique opportunity to streamline and expedite discovery in the most logical and cost-effective manner that is possible. If Plaintiffs are not allowed the opportunity to depose Ms. Tripp at this time -- to allow her to provide a "road map" for additional discovery and to preserve her testimony for trial -- they might not have the opportunity to do so at some later, unspecified time. This is particularly important in light of the threats that Ms. Tripp and other witnesses, like Ms. Kathleen Willey, have received. If such threats continue, or if they are acted upon, Ms. Tripp and other witnesses also may be too intimidated to testify. They could leave the jurisdiction, or even worse could happen. Thus, delaying Ms. Tripp's deposition could cause substantial harm to Plaintiffs' ability to vindicate their important rights. After all, it is Plaintiffs who have been harmed in Filegate.(9)
C. The Independent Counsel Staff is Not Entitled to A Stay of Ms. Tripp's Deposition.
When parallel and civil and criminal investigations are underway, motions to stay discovery typically arise under one (1) of two (2) scenarios. Under the first scenario, a stay may be granted to a criminal defendant in a parallel civil action to protect against the prosecutorial abuse that results when the civil discovery process, which is much broader and more all-encompassing than criminal discovery, is utilized to obtain evidence against a defendant in a criminal case. Under the second scenario, a stay may be granted to the prosecution to prevent a criminal defendant from abusing civil discovery to prepare his or her defense.
Neither of these concerns are present here. Plaintiffs - the parties seeking the discovery - are not criminal defendants or even targets of the independent counsel staff's investigation, nor is Ms. Tripp. The independent counsel staff is not able to cite a single example of where a plaintiff, who is not the target of a grand jury, but seeks only to vindicate its rights, has been denied the opportunity to take the deposition of a key, non-party witness because that same witnesses also testified before a grand jury. Rather, the cases cited by the independent counsel staff concern wholly inapposite instances of the government seeking a stay of discovery because a target of a grand jury investigation (or an actual criminal defendant) was attempting to use civil discovery to make an "end run" around the rules governing criminal discovery. See SEC v. Chestman, 861 F.2d 496 (2d Cir. 1988); Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962); Bureerong v. Uvawas, 167 F.R.D. 83 (C.D. Cal. 1996); Twenty-First Century Corp., 801 F. Supp. 1007 (E.D.N.Y. 1992); First Merchants Enter., Inc. v. Shannon, Case No. 1989 WL 25214 (S.D. N.Y. 1989); Wallace v. General Elec. Co., Case No. 1989 WL 13701 (E.D. Pa. 1989).(10) Such abuse of civil discovery by criminal defendants is not allowed. Because Plaintiffs are not the targets of a grand jury investigation or criminal defendants improperly seeking to skirt the discovery provisions of the Federal Rules of Criminal Procedure, none of these cases are even relevant. The independent counsel staff's representation that courts have granted stays of civil discovery in similar circumstances is thus incorrect.
As the U.S. Court of Appeals for the District of Columbia Circuit held in SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980), "The Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings." In upholding the subpoena duces tecum at issue in Dresser Indus., the DC Circuit held:
The strongest case for deferring civil proceedings until after completion of criminal proceedings is where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter. The noncriminal proceeding, if not deferred, might undermine the party's Fifth Amendment against self-incrimination, expand rights of civil discovery beyond the limits of Federal Rule of Criminal Procedure 16(b), expose the basis of the defense to the prosecution in advance of criminal trial, or otherwise prejudice the case . . . The case at the bar is a far weaker one for staying the administrative investigation. No indictment has been returned; no Fifth Amendment privilege is threatened; Rule 16(b) has not come into effect; and the SEC subpoena does not require Dresser to reveal the basis for its defense.
Dresser Indus., 628 F.2d at 1375-76 (Emphasis added). Importantly, pre-indictment requests for a stay of civil proceedings are generally denied. See, e.g., U.S. v. Private Sanitation Indus. Assoc., 811 F. Supp. 802, 805 (E.D.N.Y. 1992).
The reasons for denying the stay in this instance are even more compelling than in Dresser Indus. Plaintiffs are not the targets of any criminal investigation, nor are they seeking to learn what testimony or documents Ms. Tripp provided to the grand jury. In addition, no indictments have been returned, and it is widely accepted that none will be returned, as the independent counsel staff is expected only to submit a report to Congress. See Exhibits 23 and 24. There are no Fifth Amendment concerns either, nor does Rule 16(b) of the Federal Rules of Criminal Procedure come into play. Finally, since Ms. Tripp is not a target or a defendant in the "Filegate" matter, there is no concern that she will be required to reveal any defense strategy. Thus, the facts of this matter simply do not justify denying Plaintiffs' their right to timely discovery.
In addition, the independent counsel staff has to date not attempted to prevent Plaintiffs' discovery from proceeding, even where there was overlap between witnesses who appeared before the grand jury and witnesses who were being deposed by Plaintiffs. George Stephanopoulos and Harold Ickes are two such witnesses, as are Clifford Bernath and Kenneth Bacon. There is no reason for the independent counsel staff to attempt to intervene now.
The balancing test the independent counsel staff sets forth in its motion does not warrant a stay either. The factors as set forth by the independent counsel staff are as follows:
(1) the plaintiffs' interest in expeditious litigation and the potential prejudice of a delay; (2) the burden which the civil proceedings would place on the defendants; (3) docket management and judicial resource concerns; (4) the interests of non-parties to the civil proceedings; and (5) the interest of the public in the pending criminal and civil matters.
See Motion at 8, citing, Federal Savs. & Loan Ins. Corp. v. Molinaro, 889 F.2d 902-03 (9th Cir. 1989).
First, the Plaintiffs' interest in expeditious litigation is obvious, and the potential prejudice of further delay is clear. Given the obvious importance of Ms. Tripp's testimony, Plaintiffs must be allowed to take her deposition in as timely a manner as possible in order to obtain her best and most complete recollection. Ms. Tripp can provide the "road map" that will allow Plaintiffs to complete discovery as fast and as cost-effectively as possible. Allowing Ms. Tripp's deposition to go forward at this time is thus both logical and cost-effective.
Plaintiffs will suffer prejudice if Ms. Tripp's deposition does not go forward at this time. Plaintiffs have already noted the unique opportunity Ms. Tripp's deposition provides and their concern about ensuring that Ms. Tripp's testimony is preserved. Plaintiffs must not be required to await the completion of an investigation that has been underway since June 21, 1996, but which, to date, has seemingly been very limited. See Exhibit 17. Judicial Watch's discovery has revealed that key individuals in the "Filegate" controversy, such as "Mack" McLarty and Terry Good, have not been questioned by the independent counsel staff. See McLarty Depo. at 47; Good Depo. at 296-301. Nor has Harold Ickes fifty (50) box treasure trove of documents -- which he improperly removed from the White House -- likely been subpoenaed by the independent counsel staff. See Ickes Depo. at 98-99. Earlier this year, Defendant Hillary Rodham Clinton was reportedly questioned about "Filegate" for only nine (9) minutes. Plaintiffs have already waited -- voluntarily -- until after Ms. Tripp concluded her grand jury testimony before taking her deposition. Given the very limited investigation that apparently has been undertaken to date by the independent counsel staff, Plaintiffs should not be forced to wait any longer to depose this obviously crucial witness.
In the cases cited by the independent counsel staff on this subject, stays were granted under circumstances very different from those present here. For example, in First Merchants Enterprises, 1989 WL 25214, the Court suggested that the stay would not be long because the defendant's criminal case was subject to the Speedy Trial Act. In this instance, however, there is no end in sight to the independent counsel staff's investigation into the "Filegate" matter, at least if it plans to do a thorough job. Indeed, the efforts of the independent counsel staff appear to be focused on completing the Lewinsky investigation and preparing a report to Congress on that scandal, not on "Filegate." See Exhibit 19. Even if a report is submitted to Congress on "Filegate," Congress may not divulge the results until some time next year, at the earliest. See "An Impeachment Report? It's a Guessing Game," The New York Times, August 30, 1998, attached as Exhibit 21. Plaintiffs have already waited a substantial period of time to depose Ms. Tripp, and should not be forced to wait any longer.
While Plaintiffs will suffer substantial prejudice if Ms. Tripp's deposition does not go forward at this time, no prejudice will result to the independent counsel staff's investigation if the deposition proceeds. Plaintiffs' own "investigation" of the "Filegate" scandal has, in fact, provided important new information to the public. When Plaintiffs uncovered the facts behind the illegal release of information in Ms. Tripp's confidential, Department of Defense personnel file, the independent counsel staff subpoenaed Plaintiffs' counsel to obtain this information. Plaintiffs also uncovered further violations of the Privacy Act, including the Clinton White House's illegal release of Ms. Kathleen Willey's letters to the President and its search for other documents concerning Ms. Willey, Ms. Tripp and Ms. Monica Lewinsky, most likely to discredit and smear them with information to be released from government files to the media. See Good Depo. at 226-30; 248-251; 257-258; 273-74 and 279. Plaintiffs' "investigation" has also revealed efforts by the Clinton White House to vilify and smear and Judge Kenneth Starr, in violation of the Privacy Act, obviously in an attempt to undercut the independent counsel staff's investigations into "Filegate," the Lewinsky matter, "Travelgate," and Whitewater. Given Plaintiffs' counsel's expertise about the "Filegate" scandal, Plaintiffs' deposition of Ms. Tripp will likely turn up more crucial information.
Moreover, since the independent counsel apparently does not intend to issue any indictments as a result of "Filegate," but will ultimately only issue a report to Congress (see Exhibits 23 and 24), there is no concern that Plaintiffs' deposition of Ms. Tripp will compromise any criminal proceedings. Even if criminal indictments were to be issued, Ms. Tripp has the absolute right to testify independently, and the independent counsel staff cannot prevent her from doing so. Indeed, Ms. Tripp has given every indication that she will speak publicly about her testimony -- and has done so already. Preventing Plaintiffs from deposing Ms. Tripp at this time would not protect the independent counsel staff's investigation. It would only cause substantial harm to Plaintiffs by depriving them of key information, which they could use to expedite and complete discovery.
The second factor of the balancing test - the burden which the civil proceedings would place on the defendants - is not even implicated. This is essentially a "fairness to the defendant" inquiry that arises where both criminal and civil charges are being asserted against a defendant and there is a likelihood that civil discovery will be misused to obtain information for use against the defendant in the criminal matter. Because it has been widely accepted that the independent counsel staff will not bring indictments, but will only prepare a report to Congress (see Exhibits 23 and 24), there is not likely to be any concern that criminal defendants will be forced to defend themselves in two proceedings, reveal defense strategies, or be forced to invoke Fifth Amendment rights. See, e.g., Dresser Indus., 628 F.2d at 1375-76. With the single exception of Hillary Rodham Clinton, the defendants in this action are government agencies and the United States itself. All of these defendants have had notice that Ms. Tripp is a material witness, and none of them have objected.
The third factor, docket management and judicial resources, is not implicated either. In comparison to the independent counsel staff's multi-million dollar investigations, it simply cannot be claimed that this single deposition will excessively burden the Court's docket or unduly tax the Court's resources. Rather, deposing Ms. Tripp now will enable Plaintiffs to expedite and complete discovery in a cost-effective manner, as it will provide them with a "road map" for future discovery. It will thus benefit docket management and conserve judicial resources.
With regard to the fourth factor, there is no discernable effect on the interests of non-parties. The only non-party who might be affected is Ms. Tripp herself, and she has cooperated with Plaintiffs by authorizing her attorneys to accept service of the subpoena duces tecum. Moreover, Plaintiffs sought to accommodate both the independent counsel staff and Ms. Tripp by waiting until Ms. Tripp completed her grand jury testimony before seeking to depose her. The Justice Department and Mrs. Clinton have also cooperated in agreeing to a mutually convenient date for the deposition. See Correspondence, attached as Exhibit 12.
The fifth, and final factor - the public's interest in both the grand jury and this civil matter - dictate that the deposition go forward without delay. Obviously, the public has a very significant interest in learning the full truth about the "Filegate" scandal as quickly as possible. From facts uncovered by Plaintiffs, it is obvious that key witnesses such as "Mack" McLarty and Terry Good, have yet to be questioned by the independent counsel staff, and Hillary Rodham Clinton was questioned in only the most cursory fashion. With the independent counsel recently focusing on the Lewinsky matter, it has been Plaintiffs' case on "Filegate" that has produced the most important revelations about the Clinton Administration's misuse of information in government files. It was Plaintiffs who uncovered the fact that Ms. Tripp was among the 900 Reagan and Bush Administration appointees and employees whose FBI background investigation files were disclosed to the Clinton White House. It was Plaintiffs who uncovered the facts behind the illegal release of information in Ms. Tripp's confidential, Department of Defense personnel file, and indeed, the independent counsel staff subpoenaed this information. It was also Plaintiffs who discovered the facts behind the illegal release by the Clinton White House of letters Ms. Kathleen Willey wrote to the President, and the search requested by the White House Counsel's Office for other government files concerning Ms. Willey, Ms. Tripp and Ms. Monica Lewinsky. See Good Depo. at 226-30; 248-251; 257-258; 273-74 and 279. Plaintiffs even uncovered evidence of possible obstruction of justice by Harold Ickes and the President, who apparently sought to withhold evidence subpoenaed by the independent counsel staff. See Ickes Depo. at 386-436 and Ickes Depo. Exhibit 11. Thus, it is in the public interest to allow Plaintiffs' narrower case to proceed at this time with the deposition of Ms. Tripp.
Clearly, the public interest lies in allowing Plaintiffs to continue to uncover the truth about "Filegate," not in forcing them to wait until some unspecified time in the future before deposing the key witness, Ms. Tripp, who will provide them with the road map to complete discovery as quickly and as economically as possible. The public interest also lies in seeing Plaintiffs' rights vindicated, as it was Plaintiffs' FBI files that were obtained unlawfully, and then misused to their detriment.
There is no apparent prejudice to the independent counsel staff's investigation in deposing Mrs. Tripp now.
First, it is quite clear that the independent counsel staff has previously not sought to impede Plaintiffs' discovery by seeking to block any of Plaintiffs' depositions. There have other been instances where Plaintiffs have deposed witnesses who have also appeared before the grand jury. Ms. Tripp should be no different.
Second, there is no prejudice because Ms. Tripp and her agents have spoken, and continue to speak, publicly about her grand jury testimony, and knowledge of "Filegate" and related issues, and the independent counsel staff has taken no apparent steps to prevent her from doing so.
Third, there is no prejudice because the independent counsel admittedly will not bring indictments, but will only prepare a report to Congress. Any impeachment proceedings in Congress will not begin until next year.
Fourth, there is no prejudice because Plaintiffs have uncovered information which is important and which the independent counsel staff learned of through the media, and then subpoenaed.
Fifth, there can never be any harm in allowing independent, civil plaintiffs to protect their own rights and interests in a timely manner.
To the contrary, substantial harm will result to Plaintiffs if Ms. Tripp's deposition is stayed at this time.
First, by taking Ms. Tripp's deposition now, as Plaintiffs embark upon discovery of key "Filegate" related witnesses, Plaintiffs will have a road map of who to depose and what further documents and things to request in discovery. Ms. Tripp is the one witness who is likely to tell the truth and provide them this road map. To delay discovery now will likely set far back the timetable for completing Plaintiffs' discovery and going to trial, and deny them the opportunity to do so in a timely and cost-effective manner.
Second, there is a likelihood that Ms. Tripp's testimony, if not recorded now, could be lost. She could leave the jurisdiction or even worse. Plaintiffs should not be forced to bear this risk, and potential loss of due process rights.
Plaintiffs rights are as important, if not more so, than the public's generally. It was their FBI files that were obtained unlawfully, and it was their names and reputations that likely were dragged through the mud. They deserve timely justice.
Finally, the public has a right to know as soon as possible the full facts behind "Filegate," and current estimates show that any congressional proceedings will not commence until next year.
In short, given the lack of prejudice to its investigation and the substantial harm that Plaintiffs will suffer if Ms. Tripp is not deposed now, the motion of the independent counsel staff is not well thought out. Plaintiffs respectfully waited until after Ms. Tripp had completed her grand jury testimony. Similar courtesy and respect should now be afforded to Plaintiffs' rights and interests.
With all due respect to his staff, the independent counsel's procedurally and substantively defective motion should be summarily denied.
JUDICIAL WATCH, INC.
Larry Klayman, Esq.
DC Bar No. 334581
Paul J. Orfanedes, Esq.
DC Bar No. 429716
Allan J. Favish, Esq.
501 School Street, S.W.
Washington, DC 20024
Attorneys for Plaintiffs
I hereby certify that on August 31, 1998 a true and correct copy of the foregoing PLAINTIFFS' OPPOSITION TO UNITED STATES' MOTION FOR LIMITED INTERVENTION AND TO STAY SUBPOENA ISSUED TO LINDA R. TRIPP was served by hand on the following:
Attorneys for Defendants Federal Bureau of Investigation and Executive
Office of the President:
James J. Gilligan, Esq.
Elizabeth Shapiro, Esq.
Assistant United States Attorneys
U.S. DEPARTMENT OF JUSTICE
P.O. Box 883
Washington, DC 20044
Attorneys for Defendant Hillary Rodham Clinton:
David E. Kendall, Esq.
Paul B. Gaffney, Esq.
Marcie R. Ziegler, Esq.
WILLIAMS & CONNOLLY
725 12th Street, N.W.
Washington, DC 20005
Attorneys for Intervenor United States:
Kenneth W. Starr, Esq.
Robert J. Bittman, Esq.
Stephen J. Binhak, Esq.
Terrence J. Galligan, Esq.
OFFICE OF THE INDEPENDENT COUNSEL
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004
Paul J. Orfanedes
1. Lucianne Goldberg, Linda Tripp's literary agent, confirmed this in part to CBS News on July 6, 1998. See CBS New Transcript, Monday, July 6, 1998, attached as Exhibit 1. Ms. Goldberg also has routinely discussed Ms. Tripp's knowledge of "Filegate" on Fox News Channel.
2. Fox News Channel advertised Ms. Tripp's interview with Snow in papers across the country shortly thereafter. See Fox News Channel Advertisement from Newspaper, Date, attached as Exhibit 4.
3. See Transcript from "Fox News Sunday," August 2, 1998, attached as Exhibit 9.
4. Plaintiffs are also awaiting full document production from Messrs. Livingstone and Marceca.
5. The original return date of the subpoena was August 27, 1998. See Correspondence concerning Ms. Tripp and the Justice Department, attached as Exhibit 12.
6. Safire wrote: "Starr has never come to closure. Years passed . . . . Fortunately for the public interest in privacy, an organization called Judicial Watch launched a class action suit on behalf of people whose files had been unlawfully examined." See Exhibit 17.
7. Indeed, Ms. Tripp made a public statement on matters before the grand jury on January 31, 1998. See "Text of Tripp Statement," as published in The New York Times, January 31, 1998, attached as Exhibit 18.
8. See "DeLay Mobilizes Hill Effort With Aim of Clinton Resignation," The Washington Post, Friday, August 28, 1998, attached as Exhibit 20.
9. None of the current Plaintiffs have ever even been contacted by the independent counsel staff.
10. In Founding Church of Scientology, Inc. v. Kelly, 77 F.R.D. 378 (D.D.C. 1997), which is also cited by independent counsel staff, the individuals seeking the discovery at issue were members of a church that was under criminal investigation by a grand jury, and they had successfully evaded being subpoenaed to testify before the grand jury. They thus had a motive and opportunity to attempt to take improper advantage of civil discovery.