IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

 

CARA LESLIE ALEXANDER, et al., )

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Plaintiffs,                                   )

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v.                                                                     )           Civil Action Nos.

)           96-2123/97-1288 (RCL)

FEDERAL BUREAU OF                               )

INVESTIGATION, et al.,                               )                      

)           CONSOLIDATED ACTIONS

Defendants.                              )                      

____________________________________)

)

JOHN MICHAEL GRIMLEY, et al.,              )

)

Plaintiffs,                                   )

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v.                                                                     )

)

FEDERAL BUREAU OF                               )

INVESTIGATION, et al.,                               )

)

Defendants.                              )

____________________________________)

 

 

PLAINTIFFS’ PROPOSED FINDINGS OF FACT

Plaintiffs respectfully submit the attached Proposed Findings of Fact concerning the evidentiary hearing on obstruction, perjury, and threats concerning non-produced e-mail of the Clinton-Gore White House.


A.        The Automated Records Management System Was Created By Daniel Barry and John Podesta to Help Records Manage Clinton-Gore White House E-Mail.

B.        Court Allows Discovery In Filegate, And Clinton-Gore White House Obstruction Begins.

C.        Clinton-Gore White House Obstructs E-mail Discovery with False Barry Testimony About Reliability of ARMS System.

D.        Daniel Barry -- The Key Man in Clinton-Gore White House E-Mail Searches and Coverup.

E.         Barry Discovers Mail2 Problem in Midst of Lewinsky Crisis.

F.         Barry, Clinton-Gore Administration Lawyers Prepare and Submit False Testimony.

G.        Court Unknowingly Relied on False Clinton-Gore White House Testimony In Planning E-mail Discovery.

H.        Mail2 Problem “Rediscovered” In May/June 1998.

I.          To Keep the E-mail Hidden from the Court, the Office of Independent Counsel, and Congress, Clinton-Gore White House Officials Threatened Northrop Grumman Contractors.

J.         Clinton-Gore White House Threats Obstructed Court’s Processes and Testimony of Witnesses.

K.        As a Result of the Threats and Fraudulent Secrecy Requirements Imposed on Some Who Knew about the Mail2 Problem, E-mail Evidence Was Lost Forever.

L.         Daniel Barry and Clinton-Gore Justice Department Lawyers Present False Deposition Testimony to This Court.


M.       Top Clinton-Gore White House and Justice Department Officials Knew of Mail2 But Did Nothing to Correct the Problem or Alert the Court and Other Proper Authorities.

N.        Failures of Memory, Contradictory Testimony By Clinton-Gore White House Lawyers Belie Claims of Good Faith Concerning E-mail Scandal.

O.        The Fact That Lower Level Clinton-Gore White House Employees and Contractors Knew of Mail2’s Continuing Impact on Document Production, Shows Top Officials and Lawyers Knew As Well.

P.         Plaintiffs Repeatedly Put Clinton-Gore White House and Department of Justice on Notice Concerning Mail2.

Q.        Northrop Grumman Officials and Their Counsel Were Notified of the Threats, Obstruction of Justice,  And Worked With The Clinton-Gore White House To Coverup These Ongoing Crimes

R.        Despite Warnings from Plaintiffs and Others about Mail2, Clinton-Gore White House Continued to Present False Testimony and Withhold Information from the Court, Congress, and the Office of Independent Counsel.

S.         Despite Being on Notice, Barry, Clinton-Gore White House, and Justice Department Continue to Obstruct Justice and Commit Perjury By Filing An Additional False Declaration With This Court.

T.         Clinton-Gore White House Lied To Court About Hillary Clinton’s E-mail.

U.        Whistleblowers Expose Clinton-Gore White House’s Obstruction of Justice, False Testimony.

V.        Obstruction of Justice Continues.


W.       The President and Mrs. Clinton Must Have Known of the E-Mail Coverup.


A.        The Automated Records Management System Was Created By Daniel Barry and John Podesta to Help Records Manage Clinton-Gore White House E-Mail.

 

1.                  Daniel “Tony” Barry (hereinafter “Barry”) was hired by the Office of Administration (hereinafter “OA”) as a computer specialist in the Information and Systems Technology Division (hereinafter “IS&T” or “IS&T Division”).  See E-mail Hearing Testimony of Daniel Barry (hereinafter “Barry Testimony”), August 3, 2000 Tr. at 24, 32-33.

2.                  In 1993, Barry reviewed the ruling and agreements in Armstrong v. EOP, requiring the Executive Office of the President (hereinafter “Clinton-Gore White House” or “EOP”) to put an electronic records management system in place.  See Barry Testimony, August 3, 2000 Tr. at 33-34.

3.                  John Podesta, who is now White House Chief of Staff,  helped design and implement the ARMS system and was heavily involved in negotiating the settlement of the Armstrong litigation. See E-mail Hearing Testimony of John Podesta Testimony (hereinafter “Podesta Testimony”), October 10, 2000 Tr. at 11-16.  See also E-mail Hearing Testimony of Jason Baron (hereinafter “Baron Testimony”) August 31, 2000 Tr. at 33-34.

4.                  Podesta recommended the filing of false court declarations with a federal court in the Armstrong litigation.  See Hearing Exhibit (hereinafter “H. Ex.”) 86, Declaration of Jane Weaver at ¶5.

5.                  John Podesta had been active in the management of the Armstrong litigation and formulating guidelines for storing electronic records pursuant to the Presidential Records Act.  He worked with Jason Baron, Esquire in the Justice Department who was handling the Armstrong case.  See Podesta Testimony, October 10, 2000 Tr. at 11-13.


6.                  Podesta participated in the coordination of efforts to develop a more sophisticated system for the archival of e-mail.  These efforts resulted in the development of the ARMS system. See Podesta Testimony, October 10, 2000 Tr. at 13.

7.                  This system was designed to receive and archive electronic messages and was required by both the Presidential Records Act and the Federal Records Act.  See Barry Testimony, August 3, 2000 Tr. at 45-46.

8.                  In the middle of 1993, after reviewing information on the legal ruling in Armstrong v. EOP, Barry wrote a functional requirements document for what became the Clinton-Gore White House’s Automated Records Management System (hereinafter “ARMS” or “ARMS system”), which he presented to OA Counsel for review.  See Barry Testimony, August 3, 2000 Tr. at 33, 48-49.

9.                  After receiving approval for the concept, Barry began development of ARMS.  ARMS began operation in July, 1994.  See Barry Testimony, August 3, 2000 Tr. at 34.

10.              Barry conceived, designed, developed, wrote, implemented and tested ARMS, and currently manages ARMS.  By his own admission, he is the most expert person to talk to about ARMS.  See Barry Testimony, August 3, 2000 Tr.

11.              ARMS stores three types of records: electronic mail (hereinafter “e-mail”), calendars and pagers.  See Barry Testimony, August 3, 2000 Tr. at 42.

12.              At the time that ARMS became operational, the Clinton-Gore White House was using the All-in-One  e-mail system.  In 1997 the Clinton-Gore White House converted from the All-in-One e-mail system to the Lotus Notes e-mail system.  At the same time, a separate software program, known as the Notes ARMS Interface was developed which allowed Lotus Notes e-mails to be communicated to and stored on ARMS.  See Barry Testimony, August 3, 2000 Tr. at 43.


B.        Court Allows Discovery In Filegate, And White House Obstruction Begins.

13.               In its Memorandum Opinion and Order of  June 12, 1997, this Court deferred ruling on Plaintiffs’ Motion for Class Certification until Plaintiffs had had an opportunity to take discovery. See Memorandum Opinion, June 12, 1997, at 1.

14.              In order to investigate Rule 23(a) requirements of commonality, numerosity, typicality of claims, and adequacy of representation, this Court allowed discovery as to Plaintiffs’ Privacy Act claims (Id. at 7-8, 14-15), the substitution of the United States for defendants Nussbaum, Livingstone, and Marceca (Id. at 18), and the definition of classes and subclasses for certification which was to include how files were improperly acquired by the Clinton-Gore White House  Id. at 19-21.

15.              On August 12, 1997, this Court granted Plaintiffs an initial six months in which to complete all discovery relating to class certification and scope of employment issues.  See Memorandum Opinion, August 12, 1997, at 1.

16.              The Court also provided for “an additional period of discovery” after resolution of the class certification and substitution issues.  Id. at 2.

17.              Plaintiffs filed their First Request for Production of Documents on October 9, 1997.

18.              On November 10, 1997, the Clinton-Gore White House produced documents in response to this First Request for Production.


19.              Among the documents the Clinton-Gore White House purportedly searched to respond to the First Request for Production were documents produced to the Office of Independent Counsel for its Filegate investigation.  These documents included Clinton-Gore White House e-mail produced by Daniel “Tony” Barry (hereinafter referred to as “Barry”).  See Barry Testimony, August 21, 2000 Tr. at 36-39; see also March 4, 1999 Declaration of Sally Paxton at ¶3, attached as Exhibit B to Motion by Executive Office of the President For a Protective Order, H. Ex. 19.

20.              During a status conference on December 19, 1997, the Court sharply rebuked the Clinton-Gore White House for attempting to engage it what it described as “rolling production” of documents by which it purported to produce documents to Plaintiffs as they located them.  See Transcript of December 19, 1997 Status Call at 6-9.

 

C.        Clinton-Gore White House Obstructs E-mail Discovery with False Barry Testimony About Reliability of ARMS System.

 

21.              At a January 13, 1998 status conference, Clinton-Gore Justice Department lawyer James Gilligan represented that e-mail after July 1994 was being records managed properly.  See January 13, 1998 Transcript at 55.

22.              On January 16, 1998, Plaintiffs served a Rule 30(b)(6) Notice of Deposition on the Clinton-Gore White House concerning “the system of files maintained and other things...including  electronic mail...”  Notice of Rule 30 (b)(6) Deposition at 1.

23.              Searching e-mails related to persons who were involved in or had made allegations regarding the many scandals of the Clinton-Gore White House was a routine task frequently assigned to Daniel Barry by White House Counsel.  See Barry Testimony, August 21, 2000 Tr. at 31, 81, 111, 112, 116.

24.              The ARMS system was used to perform these searches. See Barry Declaration of July 9, 2000 (H. Ex. 42).


25.              Barry testified that “everybody” at the Clinton-Gore White House knew ARMS was not capturing e-mail properly.  See Barry Testimony, August 3, 2000 Transcript at 150.

26.              In addition to the Mail2 and Letter D “problems” (described below) which were kept from this Court, numerous other material failures by ARMS to records manage e-mail were also kept hidden from it.  Exhibit 64 from the evidentiary hearing shows the massive scope of the ARMS system failures.   In this exhibit, which contains over five-hundred pages and is labeled “Barry E-mails Documenting Problems with the Notes/ARMS interface Back to 1996,” e-mail specialist Daniel Barry documents exhaustively several persistent problems with the ARMS system.  See generally H. Ex. 64.

27.              Barry documented these problems in hundreds of e-mails to his superiors and colleagues (including OA Counsel).  See, e.g., H. Ex. 64 at E-2355-2366, E-2422-2423, and E‑2441.

28.              Barry knew, at least as early as February 27, 1996, that the “interface” which allowed ARMS to records manage e-mail “was not robust enough for a production environment.  It is going to need redesign to make it so.”  See H. Ex. 64 at E-2123.

29.              Barry acknowledged on September 13, 2000 the loss of 3,000 e-mails from the Clinton-Gore White House computer systems.  See H. Ex. 64 at E-2197.

30.              In 1997,  there was a loss of 10,000 e-mails from the Clinton-Gore White House computer systems.  See H. Ex. 64 at E-2234, E-2301; see also H. Ex. 9-17.

31.              Barry still cannot account for these missing e-mails.  See Barry Testimony, August 3, 2000 Tr. at 55.

32.              The Court did not become aware and was never advised by the Clinton-Gore White House of these 10,000 lost e-mail until the subject evidentiary hearing.  Id. at 55-56.


33.              Barry and the Clinton-Gore White House had knowledge that ARMS, as early as August 28, 1997, failed to properly place e-mail in proper agency “buckets.”  See, e.g.,  H. Ex. 64 at E-2152-2155, E-2162, E-2200, E-2402-03, and E-2410-2411; see also  H. Ex. 9-21; E-mail Hearing Testimony of Kathleen Gallant (hereinafter “Gallant Testimony”), August 1, 2000 Tr. at 154-57.

34.              ARMS failed to capture material information such as whether a particular document was read or unread by an e-mail recipient and any users to whom an e-mail was “blind carbon copied.”  The Clinton-Gore White House even knew that ARMS failed to capture the text of certain e-mail messages.  See H. Ex. 64-E-2152-2155, 9-35, Barry Testimony, August 21, 2000 Hearing Transcript at 27-29.

35.              ARMS also failed to records manage the Office of the Vice President’s e-mail.  See H. Ex. 64 at E-2134.

36.              Plaintiffs had never excluded the Office of the Vice President’s e-mail from any document request.  (It was not until June 5, 2000, that the Court ruled that Plaintiffs could not have access to Vice Presidential e-mail which related to Filegate.  See June 5, 2000 Memorandum Opinion at 35-36.  In response to the Court-ordered search of the non-records managed e-mail, the Clinton-Gore White House produced one e-mail which showed that staff in the Vice President’s office received information about the Filegate scandal.)

37.              The President’s Assistant for Management and Administration, Mark Lindsay, admitted that generally the entire Clinton-Gore White House computer system (which would necessarily include ARMS) was a nightmare.  See E-mail Hearing Testimony of Mark Lindsay (hereinafter “Lindsay Testimony”), August 23, 2000 Tr. at 152-153.


38.              In 1997, Howard “Chip” Sparks, a computer specialist at the Clinton-Gore White House, complained to his colleague Barry and many others in OA about the failure of ARMS to capture e-mails – and the resulting negative impact on searching for document requests.  See E-mail Hearing Testimony of Howard Sparks (hereinafter “Sparks Testimony”), August 16, 2000 Tr. at 71-78.

39.              Barry acknowledged that he had a conversation with Sparks about the fact that ARMS did not contain certain e-mail information that it should have.  See Barry Testimony, August 21, 2000 Tr. at 26-29.

40.              Barry acknowledged to the Court that ARMS does not contain certain e-mail information that it should have. Id.

41.              Barry acknowledged that he did not tell the Court that ARMS did not contain certain e-mail information that it should have.  See Barry Testimony, August 21, 2000 Tr. at 29.

42.              Based on the volume of the evidence, it is inconceivable that Clinton-Gore White House Counsel and their Department of Justice lawyers in this case were not informed about and did not have know of the substantial problems with ARMS, particularly since they consulted with Barry and others for lengthy periods.  See infra.

 

D.        Daniel Barry -- The Key Man in Clinton-Gore White House E-Mail Searches and Coverup.

 


43.              Barry conducted searches for all of Harold Ickes’ schedules at the request of Dimitri Nionakis, Associate Counsel to the President; concerning Karl Racine and Bruce Overton at the request of Mike  Imbroscio; concerning Bayonne Nevis at the request of Michelle Peterson (hereinafter referred to as “Peterson”); concerning Monica Lewinsky at the request of Peterson for Robert Bennett; concerning the Lippo Group, James Riady, and James Woods; concerning United States Congressman Bob Barr at the request of Peterson; and concerning Dennis Sculimbrene at the request of Dimitri Nionakis.  See Barry Testimony, August 21, 2000 Tr. at 31, 81, 111, 112, 116; H. Ex.40-2878, 40-2879, 40-2899, 40-2907, 40-2911, 40-2912, 40-3050, 40-3055, and 40-3111.

44.              Barry was even contacted regarding searches pertaining to the Alexander case in December, 1997 by Sally Paxton, Special Associate Counsel in the Clinton-Gore White House Counsel’s Office and Kate Anderson of the OA Counsel’s Office because “[w]hen there was a search for document requests in lawsuits or Congress or Independent Counsel, [Daniel Barry was] the person people went to with regard to [ARMS and] e-mail [archived on ARMS].”  See Barry Testimony, August 21, 2000 Tr. at 36-39; H. Ex.40-2869.

45.              Barry also met with Sally Paxton and James Gilligan regarding e-mail searches on ARMS for this Alexander case in December 1997.  See Barry Testimony, August 21, 2000 Tr. at 39-40; H. Ex.40-2872.

 

E.         Barry Discovers Mail2 Problem in Midst of Lewinsky Crisis.

46.              In January of 1998, shortly after the Monica Lewinsky scandal broke, Barry was contacted by Mike Imbroscio, an attorney in the Clinton-Gore White House Counsel’s Office.  See Barry Testimony, August 3, 2000 Tr. at 56-58.

47.              The Clinton-Gore White House knew that if the Lewinsky scandal were true, with its underlying allegations of Bill Clinton’s affair with an intern, perjury, witness tampering, and obstruction of justice were true, it could be the end of the Clinton presidency.


48.              Imbroscio instructed Barry to search the e-mail accounts of Betty Currie, Nancy Heinrich, and others from between December, 1995 and January 20, 1998 to and from Lewinsky within the Clinton-Gore White House.  See Barry Testimony, August 3, 2000 Tr. at 56-58.

49.              Barry’s search for the e-mails to and from Lewinsky was quite time consuming and was a high priority assignment.  See Barry Testimony, August 21, 2000 Tr. at 49-50; H. Ex. 40-2880, 40-2883, 40-2879, and 40-2888.

50.              Barry spent several long days working nights and weekends on this task.  See Barry Testimony, August 21, 2000 Tr. at 49-50; H. Ex. 40-2880, 40-2883, 40-2879, and 40-2888.

51.              Barry kept Imbroscio and Peterson informed of his progress, which was considerable.  See Barry Testimony, August 21, 2000 Tr. at 49.

52.              Barry found over 5,000 e-mails and nine boxes of responsive documents.  See Barry Testimony, August 21, 2000 Tr. at 53; H. Ex. 40-2881.

53.               In the course of his search, Barry discovered the Mail2 problem in January of 1998.  See Barry Testimony, August 3, 2000 Tr. at 56-58; H. Ex. 9-49.

54.              In January of 1998, Barry discovered that incoming e-mails from Lewinsky to Ashley Raines, a Clinton-Gore White House e-mail user, had not been captured by ARMS, whereas the reply e-mails from Raines to Lewinsky had been captured by ARMS.  See Barry Testimony, August 21, 2000 Tr. at 42-46; H. Ex. 9-49.


55.              Working with Northrop-Grumman contractor John Spriggs (hereinafter referred to as “Spriggs”), Barry was able to confirm that the incoming e-mails had made their way into the Clinton-Gore White House system, as they had made it to and through the firewall and into the Mail2 server, but were not captured by and stored on ARMS.  See Barry Testimony, August 21, 2000 Tr. at 42-46; H. Ex. 9-49.

56.              Barry documented his findings in a memorandum prepared by him on or about January 30, 1998.  See Barry Testimony, August 21, 2000 Tr. at 42, 43-44, 46; H. Ex. 9-49.

57.              Barry reported the problem to his Clinton-Gore White House supervisor Jim Wright and gave him a copy of his report of this event.  See Barry Testimony, August 3, 2000 Tr. at 73-74.

58.              The problem with the non-archiving of incoming e-mail which Barry and Spriggs found in January of 1998 eventually came to be known as the Mail2 problem or Project X.  See Barry Testimony, August 21, 2000 Tr. at 54; H. Ex. 40-2882.

59.              By January of 1998, it was known by Barry and others within the Clinton-Gore White House that there was a serious problem which caused incoming e-mail not to be captured by and stored on ARMS and, therefore, not to be produced in response to document requests from various sources.  See Barry Testimony, August 18, 2000 Tr. at 21-22, 64, 122-123, 171.

 

F.         Barry, Clinton-Gore Administration Lawyers Prepare and Submit False Testimony.

60.              Shortly after discovering the Mail2 problem, Barry had discussions with Sally Paxton, an attorney in the Clinton-Gore White House Counsel’s Office, Department of Justice attorneys James Gilligan and Julia Fayngold-Covey during the preparation of a March 4, 1998 declaration submitted in this case.  See Barry Testimony, August 3, 2000 Tr. at 122-124.

61.              These conversations were “related to searches, how searches are performed, how long they take, what kind of searches we can do in ARMS, all related to ARMS.”  See Barry Testimony, August 3, 2000 Tr. at 125.


62.              Following these discussions, an initial draft of what became Barry’s Declaration of March 4, 1998 was prepared by the attorneys Fayngold-Covey, Gilligan, and Paxton.  See Barry Testimony, August 3, 2000 Tr. at 125; H. Ex. 46.

63.              Given the intense public interest in and the high-stakes concerning the Lewinsky scandal, the legal ramifications of e-mail in the scandal, and the concurrent issue of possible testimony by Barry on topic of EOP e-mail, an evidentiary inference can be drawn that Barry discussed the Mail2 and other ARMS problems with Paxton, Gilligan, Fayngold-Covey in the course of the preparation of the March 4, 2000 declaration.

64.              Barry did not tell them what to put in the Declaration; instead, the attorneys “decided that themselves” without telling Barry the reasons Plaintiffs “had requested a 30(b)(6) representative witness[.]” See Barry Testimony, August 3, 2000 Tr. at 132-133.

65.              Paragraph 11 of the March 4, 1998 Declaration, which states “[s]ince July 14, 1991, e-mail within EOP has been archived weekly in an on-line format that is susceptible to being word-searched in the manner described below,” was written by the Clinton-Gore White House and Department of Justice lawyers, not Barry.  See Barry Testimony, August 3, 2000 Tr. at 144, March 4, 1998 Declaration of Daniel A. Barry at ¶11.

66.              Barry spent thirty (30) to forty (40) hours preparing this Declaration, with the assistance of Clinton-Gore Justice Department counsel James Gilligan and Julia Fayngold Covey, and Clinton-Gore White House Counsel Sally Paxton.  See June 11, 1998 Deposition of Daniel A. Barry at 8; see also  Barry Testimony, August 3, 2000 Transcript at 122-24.

67.              Barry was told “that the idea was that if I gave these written declarations that I wouldn’t have to give a deposition.”  Id. at 122.


68.              The initial draft of this Declaration was prepared in the White House Counsel’s Office (without input from Barry) and then faxed by Paxton to Lindsay on February 11, 1998 with a note on the cover sheet that she would see Lindsay at 1:00 p.m.  This draft was then transmitted to Barry who made handwritten notes and changes.  See H. Ex. 46; Barry Testimony, August 3, 2000 Tr. at 132 - 136; August 22, 2000 Tr. at 32 - 35

69.              What became paragraph 11 in the final version of the Declaration was paragraph 6 in the first draft.  Compare H. Ex. 46, ¶6 to E-mail H. Ex. 18, ¶11.

70.              In the initial draft, this paragraph stated “Since July 14, 1994, EOP email has been stored on computer tapes in a format that is susceptible to a word search”  (emphasis added).  In the margin next to this language, Barry added the words “on line and on tape” to clarify that the e-mail was not just on the tapes but on ARMS as well.  See H. Ex. 46 at 4, Barry Testimony, August 22, 2000 Tr. at 35.

71.              By adding “on line and on tape,” Barry was indicating that both ARMS and the back-up tapes had to be searched to cover all post-July 1994 e-mail. 

72.              However, since Barry had designed ARMS to archive all EOP e-mail as required by the Armstrong decision and the Presidential and Federal Records Act, he knew that the reference to “on line” by itself would have been sufficient unless ARMS was not archiving all e-mail due to an error such as Lewinsky/Mail2 problem he found in January, 1998 and the numerous other problems ARMS had archiving e-mail.  See Barry Testimony, August 3, 2000 Tr. at 33 - 34, 45 - 46; H. Ex. 9-49, H. Ex. 64.


73.              While the first draft of Barry’s March 4, 1998 referred to “computer tapes” and Barry’s corrections added “on line and,” the word “tapes” has been deleted from every subsequent draft and the final version of this Declaration.  See H. Exs. 18, 49, 67, 69, 70, 71, 73, 74, 75. 

74.              Barry was working closely with Lindsay and attorneys in the White House Counsel’s office and the Department of Justice in drafting and revising this declaration.  See H. Exs. 46 (Lindsay and Paxton), 49 (Paxton), 67 (Gilligan), 69 (Shapiro), and 70, 71, 73, 74, and 75 (Giles).

75.              The interaction between Barry and these attorneys was extensive and detailed.  See, e.g., H. Ex. 46 (extensive handwritten changes by Barry) and H. Ex. 49 at 2 - 3 (February 24, 1998 e-mail from Barry to Paxton with detailed, 2 page discussion of various changes).

76.              Barry did discuss paragraph 11 of his March 4, 1998 with Clinton-Gore White House and Justice Department attorneys Lindsay, Paxton, Gilligan, Shapiro, and Giles.  See H. Exs. 46 (Lindsay and Paxton), 49 (Paxton), 67 (Gilligan), 69 (Shapiro), and 70, 71, 73, 74, and 75 (Giles).

77.              Before signing the Declaration of March 4, 1998, Barry reviewed it thoroughly.  See Barry Testimony, August 3, 2000 Tr. at 120.

78.              When Barry signed the March 4, 1998, Barry knew that some inbound e-mail messages and many other e-mails inside the Clinton-Gore White House were not in ARMS.  See Barry Testimony, August 3, 2000 Tr. at 145, H. Ex. 9-49, H. Ex. 64.

79.              Paragraph 11 of Barry’s March 4, 1998 Declaration is false.  The Clinton-Gore White House and its legal counsel knew it was and is false.  Lindsay Testimony, August 223, 2000 Tr. at 166 - 168.


80.              Barry also knows this language in Paragraph 11 of his March 4, 1998 Declaration, also used in Paragraph 4 of Barry’s July 9, 1999 declaration, is false.  Barry says he was pressured Paxton to sign this false document..  Heissner Testimony, August 15, 2000 Tr. at 101 - 102;  see also H. Ex. 39-1 051639-40, 051646; Paragraph 4 of Barry’s July 9, 1999 Affidavit, H. Ex. 42

81.              The Clinton-Gore White House filed its Motion by Executive Office of the President for a Protective Order Quashing Plaintiffs’ Notice of Deposition and Request for Documents Pursuant to Rule 30(b)(6) & (b)(5) on March 4, 1998 (hereinafter “Motion for 30(b)(6) Protective Order”).  See H. Ex. 19.

82.              Daniel Barry’s March 4, 1998 Declaration, and the Declaration of Sally Paxton, an attorney in the Clinton-Gore White House Counsel’s Office, were attached to the Motion for 30(b)(6) Protective Order (as Exhibits D and B respectively) to support the Clinton-Gore White House’s argument that its search in response to the First Request for Production of Documents was complete, covering all potential sources and producing all potentially relevant documents, and that an oral deposition should not proceed.  Id. at 8-11.

83.              The Clinton-Gore White House Motion for 30(b)(6) Protective Order stated that “[t]he declarations [from Paxton, Laura Crabtree, the Desktop Systems Branch Chief of the IS&T Division, and Barry which were attached to the Motion] also render unnecessary plaintiffs’ broad discovery requests regarding e-mail and computer files.”  See H. Ex. 19 at 11.

84.              By this statement, the Clinton-Gore White House and its counsel were representing that all information relevant to the method and completeness of the e-mail searches that had been or were to be performed in this case was contained in the attached Declarations, including Tony Barry’s Declaration of March 4, 1998.  Obviously, they were worried that an oral deposition would reveal the Mail2 and other e-mail problems.


85.              On March 18, 1998, Plaintiffs filed their Opposition to the Clinton-Gore White House’s Motion for 30(b)(6) Protective Order (hereinafter “Oppositon”).

86.              Plaintiffs’ Opposition to the Clinton-Gore White House’s Motion for 30(b)(6) Protective Order stated that the purpose of the Rule 30(b)(6) deposition was “to find out how personnel at the Clinton White House communicate, exchange information and store communications and information” and “to confirm that the Clinton White House’s e-mail, computer files and electronically-stored information were readily accessible.” See Id. at 2, 3.

87.              A copy of this Opposition was faxed from Sally Paxton in the White House Counsel’s Office to Tony Barry on March 23, 1998.  See H. Ex. 48.

88.              Tony Barry then faxed the Opposition to Mark Lindsay with a note that stated “Please review.  I will need guidance.”  See H. Ex. 48.

89.              Tony Barry confirmed in his Declaration of March 30, 1998 that he had “reviewed the Plaintiff’s Opposition to the Executive Office of the President’s Motion for Protective Order....”  See H. Ex. 44 at 1.

90.              Paragraph 1 of this Declaration states that “I previously provided a declaration in this case” and paragraphs 3 and 5 refer to “[m]y previous declaration” indicating the Barry March 4, 1998 Declaration.  See H. Ex. 44 at ¶¶ 1, 3, 5. 

91.              Barry March 30, 1998 Declaration fails to correct the false information in the March 4, 1998 Declaration that all post-July 1994 e-mail is stored in a word-searchable format.  See E-mail Hearing Exhibit 44.


92.              On March 30, 1998, the Clinton-Gore White House and its Department of Justice counsel filed a Reply Memorandum In Support of Executive Office of the President’s Motion For A Protective Order Quashing Plaintiff’s Notice of Deposition and Request for Documents Pursuant toRule 30(b) (6) & (b) (5), attaching Barry’s March 30, 1998 Declaration.

93.              The Clinton-Gore White House’s Reply noted that Plaintiffs were seeking “to ascertain the accessibility of EOP’s e-mail system” and responded by stating that “EOP has provided two detailed declarations dealing with restoring, reconstructing, and searching EOP’s e-mail,” citing the March 4, 1998 Barry Declaration and the March 4, 1998 Paxton Declaration.  Id. at 7-8.

94.              In the Clinton-Gore White House’s Reply, it noted Plaintiffs’ suggestion that “EOP has misrepresented the burdens associated with e-mail searches by ‘burying’ the fact that post-July 14, 1994 e-mail is searchable...” and responded that “[w]holly to the contrary, EOP explained this to plaintiffs’ counsel both orally and in writing [in] January [1998]....  In addition, counsel for EOP explained these matters to the Court at the January 13, 1998 status conference.”  Id. at 10-11.

95.              Attached to the Clinton-Gore White House’s Reply as Exhibit H was a copy of Gilligan’s letter of January 13, 1998 to Larry Klayman.  Id., Ex. H.

96.              In that letter, Mr. Gilligan stated that “[w]e are advised that since July 14, 1994, EOP e-mail has been stored on tapes in a format that is generally susceptible to being searched by keyword.”  Id., Ex. H. at 3.

97.              In fact, as of January 18, 1998, much EOP e-mail since July 14, 1994 had not been stored on tapes in a format that is generally susceptible to being searched by keyword.  See H. Ex. 64.

98.              At the January 13, 1998 hearing, Clinton-Gore White House counsel stated that “[a]s to the post July 1994 period, e-mail was also stored on tape, but it is in a format that is more readily susceptible of a word search.”  January 13, 1998 Tr. at 55.


99.              Again, at that time, much EOP e-mail since July 14, 1994 was not readily susceptible to being word searched.  See, e.g., H. Ex. 64.

 

G.        Court Unknowingly Relied on False Clinton-Gore White House Testimony In Planning E-mail Discovery.

 

100.          On April 13, 1998, this Court ordered Plaintiffs’ Rule 30(b)(6) deposition(s) to proceed stating that “[t]he parties are instructed to comply with the Rule 30(b)(6) Notice of Deposition and Request for Documents in a manner consistent with the analysis set forth in the Memorandum and Order.” See Memorandum and Order, April 13, 1998, at 21.

101.          Quoting from the Barry affidavit of March 4, 1998, the Court concluded that post July 14, 1994 EOP e-mail “has been maintained in a word searchable format and has been archived weekly in an on-line format” and directed Plaintiffs to discuss “appropriately worded searches of [the post-July 1994]  backed-up and archived e-mail.”  See Memorandum and Order, April 13, 1998, at 10-11.

102.          The information on Clinton-Gore White House e-mail problems was withheld from the Court.  As a result, the Court was unable to order any remedial action or attendant discovery concerning ARMS and e-mail for the Plaintiffs.

103.          The April 13, 1998 Order also required the Clinton-Gore White House to produce Rule 30(b)(6) witnesses to respond to item numbers 1, 3, and 8, as those items in Plaintiffs’ Rule 30(b)(6) Notice of Deposition had been defined by the Court and Plaintiffs.  Id. at 13-14.


104.          In particular, item 1 required the deponent to testify regarding “the system of files maintained to store, protect, and preserve documents and other things, including ... electronic mail.”  Id.

105.          The April 13, 1998 Order also required the deponent to testify regarding “the system or systems used since January 1, 1992, to create, transmit, store, retrieve, and delete so-called ‘electronic mail’ (said representative(s) to have knowledge of the maintenance and operation of all electronic mail systems...).”  Id at 15.

106.          The April 13, 1998 Order also required that the deponent testify regarding “all measures for compliance at the [EOP] ... with the ... Presidential Records Act of 1978, and any other relevant statute [e.g., the Federal Records Act] ... applicable to the preservation ... of documents generated ... on whatever media in the [EOP]....”  Id. at 17-18.

107.          The Clinton-Gore White House selected Daniel Barry as its Rule 30(b)(6) designee on e-mail matters, including information on all of the areas covered by this Court’s Memorandum and Order of  April 13, 1998.  See H. Ex. 50 (Barry June 11, 1998 Deposition Transcript).

108.          For approximately six months after the discovery in January of 1998 of the problem with the archiving of incoming e-mail, Barry, the OA, and the Clinton-Gore White House sat on and covered up the problem, knowing that it would not go away, but hoping that no one else would become aware of the problem and of the critical fact that responsive e-mails existed which were not being produced.


109.          No one told any of the other Northrop Grumman contractors about the Mail2 problem prior to June 12, 1998, even though such knowledge was important to the performance of their jobs and e-mail production was part of their contract with the EOP.  See E-mail Hearing Testimony of Robert Haas (hereinafter “Haas Testimony”), August 14, 2000 Tr. at 6.

110.          The discovery in January of 1998 of the fact that the missing e-mail was not being captured on ARMS was a well-kept secret by Barry, Spriggs, and a select group within the OA and the EOP until the same problem was also discovered by Northrop Grumman contractors Robert Haas and Yiman Salim in June, 1998.

 

H.        Mail2 Problem “Rediscovered” In May/June 1998.

111.          Sometime in late May or early June of 1998, the fact that the incoming e-mail was not being captured on ARMS (the “Mail2 problem”) was independently discovered by Haas.  See Haas Testimony, August 14, 2000 Tr. at 6-16.

112.          Haas, a Northrop Grumman employee, has worked as a contractor at the EOP for ten years as a Lotus Notes e-mail specialist.  See Haas Testimony, August 2, 2000 Tr. at 178; Haas Testimony, August 14, 2000 Tr. at 15.

113.          Haas was working on a project around early June of 1998.  He clicked on a screen or “view” which would show him all non-records managed e-mail for the selected user’s account expecting to find a blank or near blank screen.  Instead, he discovered a full screen indicating that there were multiple non-records managed e-mails.  He also discovered that many of them were months and years old with some having dates going back to 1996.  Haas Testimony, August 14, 2000 Tr. at 14-16.


114.          Haas was overwhelmed by what he saw on the screen, which his trained eye and mind immediately told him was a serious and longstanding problem.  See Haas Testimony, August 14, 2000 Tr. at 14-16.

115.          Haas instantly knew that it was a big problem which would need a lot of work to fix, and had a feeling that he was going to regret “ever seeing this day.”  See Haas Testimony, August 14, 2000 Tr. at 14-16.

116.          The problem which Haas discovered would later come to be known as the Mail2 problem, and was the same problem which Barry and Spriggs had found earlier in January of 1998.  See Haas Testimony, August 2, 2000 Tr. at 199-203.

117.          Haas and his Northrop Grumman co-worker who was with him at the time, Yiman Salim, immediately notified their project manager Betty Lambuth (hereinafter referred to as “Lambuth”) about what they had found.  See Haas Testimony, August 2, 2000 Tr. at 185-187.

118.          At Ms. Lambuth’s instruction, Haas continued to investigate the problem further while she notified her contact within the Clinton-Gore White House, Laura Crabtree, who was the Lotus Notes NT server specialist in the Clinton-Gore White House.  See Haas Testimony, August 2, 2000 Tr. at 185-187.

119.          At Ms. Lambuth’s instruction, Haas recorded his findings as of that time.  See Haas Testimony, August 14, 2000 Tr. at 15-16; H. Ex. 9-12.

120.          What was known at that time was that e-mail was not being processed as it should have been.  See Haas Testimony, August 2, 2000 Tr. at 194-196; H. Ex. 9-12.


121.          Haas continued to analyze the problem and, within a couple of days, had discovered that a spelling error had affected the e-mails of what was later determined to be hundreds of Clinton-Gore White House e-mail users and also affecting over 240,000 documents.  See Haas Testimony, August 2, 2000 Tr. at 194-196; H. Ex. 9-12.

122.          Haas gave the report of affected Clinton-Gore White House users to Lambuth who passed it on to her government contacts.  See Haas Testimony, August 2, 2000 Tr. at 194-196.

123.          While producing this report, Haas was interrupted by John Spriggs, who possessed a piece of paper containing a list of four names.  See Haas Testimony, August 2, 2000 Tr. at 199-201.

124.          The list had been compiled by someone in the Clinton-Gore White House Counsel’s Office and was conveyed by Mark Lindsay to Spriggs through Lambuth.  See Haas Testimony, August 2, 2000 Tr. at 199-201.

125.          The names on the list, which were recognizable to Haas as upper level executives in the Clinton-Gore White House, included Sidney Blumenthal, Erskine Bowles, Ira Magaziner, and John Podesta.  See Haas Testimony, August 14, 2000 Tr. at 23, 24, 25, 26, and 27.

126.          Haas was told by Spriggs to check the e-mail files of the persons whose names appeared on the list to determine if incoming e-mail from Lewinsky could be found.  See Haas Testimony, August 2, 2000 Tr. at 199-204; see also August 14, 2000 Tr. at 23-29.

127.          Haas could not locate any such e-mail directed to the people on Spriggs’ list.  See Haas Testimony, August 14, 2000 Tr. at 28-29.

128.          Unrecorded e-mail was found in each of these individual’s e-mail, but no e-mail from Lewinsky was found.  See Haas Testimony, August 14, 2000 Tr. at 28-29.


129.          At Spriggs’ suggestion, Haas checked the e-mail box of Ashley Raines, and discovered a motherload of over 400 documents, and also searched the account of Betty Currie (hereinafter referred to as “Currie”).  See Haas Testimony, August 15, 2000 Tr. at 17-18; Haas Testimony, August 14 Tr. at 25.

130.          The documents found in this search were printed out and constituted about two-and-one-half reams of paper, which Haas placed in an expandable accordion folder and gave to Lambuth.  See Haas Testimony, August 14, 2000 Tr. at 7-8.

131.          Haas gave the files to Ms. Lambuth, who gave them to Mark Lindsay, who gave them to the receptionist in the White House Counsel’s Office.  See Haas Testimony, August 14, 2000 Tr. at 8-11; Lindsay Testimony, August 23, 2000 Tr. at 144.

132.          Haas later learned that Spriggs knew about the missing incoming e-mail from Lewinsky to Raines, because he had made the same discovery with Barry in January of 1998.  See Haas Testimony, August 14, 2000 Tr. at 199-203.

133.          Spriggs did not share the information about the January, 1998 discovery with Haas or other Northrop Grumman employees at the time, or even when he was allegedly helping to troubleshoot the problem with Haas in June, 1998.  See Haas Testimony, August 14, 2000 Tr. at 198-202.

134.          The search by Haas of the four names was not intended to be a comprehensive search, but rather a superficial, cursory search in 30 seconds or less to see if they could find the kind of “hits” that had previously been found with incoming e-mail from Lewinsky to Raines.  See Haas Testimony, August 14, 2000 Tr. at 183.

135.          The search by Haas of the four names was not an effort to find all e-mail concerning Lewinsky.  See Haas Testimony, August 14, 2000 Tr. at 183-184.


136.          No one was asked to try to find all of the non-records managed e-mail concerning Lewinsky.  See Haas Testimony, August 14, 2000 Tr. at 183-184.

137.          Although Haas heard Cheryl Mills testify before Congress that all non-records managed e-mail were duplicative,  no one could make that finding based on Haas’s search or anything that he knew. See Haas Testimony, August 14, 2000 Tr. at 183-184.

138.          No one did the kind of comprehensive search or analysis which would be required to support such a statement.  See Haas Testimony, August 14, 2000 Tr. at 183-184.

139.          Haas and the other employees in IS&T recognized that the failure to manage these e-mails in ARMS would have an impact on document production to the Court, the Congress, and the Independent Counsel.  See Haas Testimony, August 14, 2000 Tr. at 34-35.

140.          Although not a lawyer, Haas assumed that there were adverse legal consequences to not producing documents required by subpoena, and that to do so would be against the law and constitute obstruction of justice.  See Haas Testimony, August 14, 2000 Tr. at 37-38.

141.          It was discussed and recognized by Haas and the people with whom he worked that the law required that the documents to be maintained and produced, no matter the cost.  See Haas Testimony, August 14, 2000 Tr. at 40.

142.          It was clear to all, even computer technicians such as Robert Haas, who were untrained in the law, what the proper course of action was.  See Haas Testimony, August 14, 2000 T. at 40.

 

I.          To Keep the E-mail Hidden from the Court, the Office of Independent Counsel, and Congress, Clinton-Gore White House Officials Threatened Northrop Grumman Contractors


143.          This Court heard from three witnesses who were threatened by the Clinton-Gore White House:  Betty Lambuth, Sandra Golas, and Robert Haas.

144.           In late May-early June, 1998, Betty Lambuth alerted Laura Crabtree to the cause of the Mail2 problem, its severity, who it affected, and its impact on searches.  See E-mail Hearing Testimony of Betty Lambuth (hereinafter “Lambuth Testimony”), August 1, 2000 Tr. at 17.

145.          Crabtree immediately consulted with her superior, Mark Lindsay, then OA Counsel,  about the Mail2 problem.  See Lambuth Testimony, August 1, 2000 Tr. at 17.

146.          Lindsay told Crabtree to tell Ms. Lambuth that if Ms. Lambuth or any of her colleagues who knew about Mail2 told any unauthorized person, they would all lose their jobs, be arrested, and go to jail.  Crabtree conveyed Lindsay’s threats to Lambuth.  See Lambuth Testimony, August 1, 2000 Tr. at 18.

147.          The instructions on who not to talk included spouses and the Northrop Grumman contractors’ managers.  See Lambuth Testimony, August 1, 2000 Tr. at 18.

148.          To Ms. Lambuth, these were not idle threats, as Ms. Lambuth had seen a previous contractor escorted out the Clinton-Gore White House because of unsubstantiated allegations by Crabtree. See Lambuth Testimony, August 1, 2000 Tr. at 19-20.

149.          Ms. Lambuth was also told not to write anything down about the Mail2 problem.  See Lambuth Testimony, August 1, 2000 Tr. at  at 18-19.

150.          Crabtree was aware of the Mail2 problem’s impact on subpoenas and document requests, having discussed it with Ms. Lambuth at those initial meetings.  See Lambuth Testimony, August 1, 2000 Tr. at  at 21-22.


151.          Because of the severity of the Lindsay threat (as conveyed by Crabtree), Ms. Lambuth sought a meeting with Lindsay.  See Lambuth Testimony, August 1, 2000 Tr. at 19-20.

152.          Ms. Lambuth reported these threats to her contracting staff -- Bob Haas, Sandi Golas, John Spriggs, and perhaps Yiman Salim.  See Lambuth Testimony, August 1, 2000 Tr. at 22.

153.          Ms. Lambuth, after trying nearly an entire day to meet with Lindsay, eventually met with him in his office.   See Lambuth Testimony, August 1, 2000 Tr. at  23-25.

154.          At that meeting, Lindsay, in a serious tone, repeated the threats – telling Ms. Lambuth that she and her colleagues would lose their jobs, be arrested, and go to jail if they talked to unauthorized people about Mail2.  See Lambuth Testimony, August 1, 2000 Tr. at  23-25.

155.          Ms. Lambuth was “very taken aback by the threats.”  See Lambuth Testimony, August 1, 2000 Tr. at 26.

156.          So serious were the threats that Lambuth feared for her personal safety.  See Lambuth Testimony, August 1, 2000 Tr. at 26‑27.

157.          Clinton-Gore White House “government” officials stated that the subject e-mail was classified and/or top secret.  See Lambuth Testimony, August 1, 2000 Tr. at 27-28.

158.          The e-mail at issue was not classified or top secret.  See Lambuth Testimony, August 1, 2000 Tr. at 28.

159.          It was these threats that led to Ms. Lambuth and her team to start calling the Mail2 problem “Project X.”  See Lambuth Testimony, August 1, 2000 Tr. at 70-71.

160.          One of Ms. Lambuth’s government supervisors, Kathleen Gallant, Associate Director for Information Systems & Technology, confirmed that Ms. Lambuth was shaken by these threats.  See Gallant Testimony, August 1, 2000 Tr. at 123-34.


161.          At a meeting with Ms. Lambuth and Paulette Cichone (OA’s then-Director of Information Management) shortly after Ms. Lambuth was threatened, Ms. Gallant saw that something traumatic had occurred to Ms. Lambuth.  See Gallant Testimony, August 1, 2000 Tr. at 23-24.

162.          Ms. Gallant would later connect the trauma to the threats.  See Gallant Testimony, August 1, 2000 Tr. at 125-130.

163.          Shortly after Lambuth’s meeting with Lindsay, Lindsay and Crabtree reiterated the threats again at a meeting with Ms. Lambuth’s Northrop Grumman “team.”  Those members of Ms. Lambuth’s Northrop Grumman team at the meeting were Robert Haas, Sandra Golas, John Spriggs, and Yiman Salim.  See Lambuth Testimony, August 1, 2000 Tr. at 27-28.

164.          The claim that the e-mail was “classified” was reiterated, and the “team” was told not to take notes or use the e-mail system to communicate about the Mail2 problem.  See Lambuth Testimony, August 1, 2000 Tr. at 29-30.

165.          The e-mail in question was not classified.  See Lambuth Testimony, August 1, 2000 Tr. at 27-28.

166.          It was another scare tactic by Lindsay/Crabtree designed to keep the contracting team quiet and to effect the cover-up.  See Lambuth Testimony, August 1, 2000 Tr. at 27-30.

167.          Ms. Lambuth, who has a security clearance, testified directly on this, stating that she “would not have felt that anything that was in [the] e-mail would have been classified.”  See Lambuth Testimony, August 1, 2000 Tr. at 28.


168.          By falsely stating the e-mail was “classified,” the Clinton-Gore White House effectively threatened also to take away Lambuth’s and her colleagues’ security clearances if they talked about the hidden e-mail.  See Lambuth Testimony, August 1, 2000 Tr. at 26; Sparks Testimony, August 16, 2000 Tr. at 88-89.

169.          All the staff became very alarmed about the threats, many expressing concern about the instruction not to talk to spouses about the Mail2 problem.  See Lambuth Testimony, August 1, 2000 Tr. at 30-33.

170.          Mr. Haas confirmed these threats:

[By Mr. Haas:] Well, we were addressed over the phone by a gentleman by the name of Mark Lindsay, which is one of the government officials who was in charge of the OA division at that time...He instructed us that he had been made aware of what we were looking into and that we should treat it as though it was top secret, and not tell anybody, keep it within the group.  Until we got a handle on this thing, he didn’t want anybody outside of the five people in that room to know anything about it, and that if – we were not to tell – talk to our wives or anyone.

 

See Haas Testimony, August 2, 2000 Tr. at 187.

 

171.          Haas thought this instruction not to talk was an unusual instruction.  See Haas Testimony, August 2, 2000 Tr. at 188.

172.          The phone conference was the first and only time that Lindsay had addressed the contractors.  See Haas Testimony, August 15, 2000 Tr. at 28.

173.          After Lindsay hung up, Crabtree reenforced Lindsay’s threats:

[By Mr. Haas:] She continued the meeting and she basically reiterated two or three different ways, the same verbiage that we were not to talk about it any way, shape or form to anyone outside the room; that Laura Crabree, Mark Lindsay, Ada Posey were the only people that could authorize us to talk to anyone outside of that room in the future; and that that if we did, and they stated including our wives, that if we did, they would use the full weight of the government to make sure that we would never work in this business or this town again, in fact, they would have us arrested and put in jail.

 

See Haas Testimony, August 2, 2000 Tr. at 188-89.


174.          These “head spinning” threats frightened Mr. Haas.  See Haas Testimony, August 2, 2000 Tr. at 189-190.

175.          Ms. Crabtree was speaking for the Clinton-Gore White House and Lindsay. (“She reiterated (Lindsay’s) statements...When she said that they would use the power of the government to put me jail, I assume that meant Mr. Lindsay also.”)  See Haas Testimony, August 2, 2000 Tr. at 192-193.

176.          Ms. Crabtree was quite specific in her threats of jail to Mr. Haas:

[By Mr. Haas:] To the end [of the meeting] Laura Crabtree was continuing to reiterate the need for absolute secrecy on this.  I broached her with a question that what if I was approached by Virginia Apuzzo, which was a higher level government executive several levels above her and questioned me on the subject, what was I to tell her?  And she said nothing.  I said you mean if I tell Virginia Apuzzo or my wife, you know, what are you going to do to me?  She said well, in fact, there will be a jail cell with your name on it.

 

See Haas Testimony, August 2, 2000 Tr. at 192.

 

177.          Showing his awareness of the legal implications of his threats, Mark Lindsay also sought legal consultation from a fellow lawyer in the OA, Adam Greenstone, Esq., on the issue of whether or not it was legal to tell employees not to record information about the Mail2 problem.  See Lindsay Testimony, August 23, 2000 Tr. at 74-78.

178.          Lindsay also told Clinton-Gore White House political appointee Kathleen Gallant that she was not to take notes about Mail2 or speak to anyone about it, but later lied and denied that he had said this to her.  See Gallant Testimony, August 1, 2000 Tr. at 112 - 116.

179.          Ada Posey, who hired Lindsay for the Clinton-Gore White House, testified that Lindsay was not straightforward or candid.  See E-Mail Hearing Testimony of Ada Posey (hereinafter “Posey Testimony”), August 17, 2000 Tr. at 34 - 37.


180.          The evidence adduced to date shows that not only did Mark Lindsay and Laura Crabtree threaten EOP contractors, but Lindsay is lying to this court when he says he cannot remember the threats or any meeting when he made the threats.  See also Lindsay Testimony, August 23, 2000 Tr. at 85 - 89.

181.          Haas took these threats from his White House government managers so seriously that he expressed fear for his, and the safety of him and his family.  Ms. Hall testified quite directly:

[By Ms. Hall:]   [Haas] said he was afraid for his life.  He knew a lot of the information in there [in the Project X e-mail].  He was afraid that his company would be taking in the responsibility for the programming glitch.  He was – he told me that he was afraid for his life.  He lived a long ways away.  He was afraid for his family, he was afraid for himself.  He had been threatened by several government managers.

 

See E-Mail Hearing Testimony of Sheryl Hall (hereinafter “Hall Testimony”), July 31, 2000 Tr. at 98.

182.          As did Ms. Lambuth, Haas knew that the White House could follow through on these threats.  See Hall Testimony, July 31, 2000 Tr. at 99.

183.          Haas also told Ms. Lambuth of his concerns for his life, which were directly connected to the threats and the incriminating Project X e-mail he saw on Filegate and other Clinton-Gore scandals.  See Lambuth Testimony, August 1, 2000 Tr. at 32-33.

184.          Haas also expressed concerns about his family and the security of his home to Howard “Chip” Sparks because of his involvement in Project X.  See Sparks Testimony, August 16, 2000 Tr. at 87-89.

185.          Sandra Golas, another contractor for Northrup Grumman, was also a victim of these threats by Crabtree and Lindsay.  Golas testified that the threats were made during the same meeting about which Ms. Lambuth and Mr. Haas testified:


[By Ms. Golas:]            Ms. Crabtree called Mr. Lindsay, put him on a speaker phone.  He spoke to us and told us that this a very serious situation that we should...take this very seriously; that we should not talk with anybody about it.  I don’t remember all the details, but that was the jest [sic] of his conversation.  I think – I don’t remember everything.  I know that when the conversation terminated Laura proceeded to – Ms. Crabtree proceeded to give us some more instructions.

 

[By Mr. Klayman:]       What were those instructions?

 

[By Ms. Golas:]            Pretty much she reiterated what Mr. Lindsay had said about the seriousness of the – there were some comments made about – somewhere in the conversation that somebody said somebody about jail.  I’m not sure who said it.  I do know there was some reference to it.  It sounded very, very serious.  We were told to treat it very – they said it was a very, very serious situation; that we shouldn’t talk to anybody.  We were also told not to talk to Mr. Hawkins and Mr. Wright.

E-Mail Hearing Testimony of Sandra Golas (hereinafter “Golas Testimony”), August 2, 2000 Tr. at 39-40.

186.          The threats caused Ms. Golas to nearly lose her job.  In a key incident in this case, rather than tell her government and Northrop Grumman supervisors about Project X after being threatened with job loss, Ms. Golas put her job at risk because she took the threats so seriously:

[By Ms. Golas:]            Mr. (Steve) Hawkins [her Nortrop-Grumman supervisor] and I had a conversation at which he got very loud and told me that I had 30 minutes to tell him what was going on or I could pack my bags..He said [a little later], you know, you’re bordering on being insubordinate, and I looked at him and I said if it’s a choice of being insubordinate or going to jail, I guess I’ll have to go be insubordinate.

See Golas Testimony, August 2, 2000 Tr. at 75-77.


187.          Ms. Golas told Mr. Haas about this encounter and Mr. Hawkins’ threat to fire her.  Mr. Haas then told Mark Lindsay about the situation and asked him to intervene on Ms. Golas’ behalf.  Mark Lindsay then called Hawkins and insisted that Hawkins come to the phone and speak with him.  After this conversation, Mr. Hawkins dropped the matter with Golas.  See Golas Testimony, August 2, 2000 Tr. at 76-78.

188.          The threats caused Ms. Lambuth to lose her contracting job at the Clinton-Gore White House after she refused, because of the threats, to tell Steve Hawkins about Project X.  See Lambuth Testimony, August 1, 2000 Tr. at 42-53.

189.          Ms. Lambuth was at a doctor’s appointment when the confrontation between Hawkins and Ms. Golas occurred.  Ms. Golas, upset and crying, called her and Ms. Lambuth came back to the White House to talk with Hawkins:

[By Ms. Lambuth:]       The person’s office (Steve Hawkins) was in happened to be another manager (R.C. Cavazos) who works for the same company that I work for.  Basically in talking to Steve he said that we had to tell him [about Project X], I had to tell him, Sandi (Golas) had to tell him, that he was the prime [contractor], I was the sub [-contractor], and we basically listened to what the prime says.  I told him that I could not tell him.  I told him again about the threats, you know, we couldn’t talk about this project.  He turned around and said, see, she’s insubordinate.  She will be removed from the project for not talking to me about this.

 

[By Mr. Klayman:]       She, meaning you?

 

[By Ms. Lambuth:]       Yes.

 

See Lambuth Testimony, August 1, 2000 Tr. at 46-47.


190.          That these threats occurred is not in dispute.  Knowledge of the threats was common currency in the Clinton-Gore White House.  Several witnesses in this case testified to learning of them in the course of their work in the Clinton-Gore White House -- Sheryl Hall, Daniel Barry, Karl Heissner and Howard “Chip” Sparks among them. See Hall Testimony, July 31, 2000 Tr. at 96-101; Barry Testimony, August 18, 2000 Tr. at 116-118; Testimony of Karl Heissner (hereinafter “Heissner Testimony”), August 15, 2000 Transcript at 71-72, 88-89; Sparks Testimony, August 16, 2000 Tr. at 54-58.

191.          Kathleen Gallant, Associate Director for Information Systems & Technology, was a political appointee with the Clinton-Gore White House OA and a superior to Laura Crabtree.  Ms. Gallant called a meeting and was told by all the Northrop Grumman employees of Crabtree’s threats.  See Gallant Testimony, August 1, 2000 Tr. at 106.

192.          At that meeting, not one Northrup Grumman employee said the threats had not occurred.  See Gallant Testimony, August 1, 2000 Tr. at 137.

193.          Because of the threats, Ms. Gallant removed Crabtree from Project X.  See Gallant Testimony, August 1, 2000 Tr. at 136; Declaration of Kathleen Gallant, May 10, 2000 at ¶8.

194.          The threats caused a very significant delay in the recovery of the e-mail.  The Northrop Grumman team was forced to meet in a park and a coffee shop to discuss the problem, slowing the project down.  See Lambuth Testimony, August 1, 2000 Tr. at 54; Golas Testimony, August 2, 2000 at 90.

195.          After Betty Lambuth was removed, Northrop Grumman and the Clinton-Gore White House managers took the Northrop Grumman employees off of Project X and assigned them to other jobs, leaving no one to work on correcting the problem.  See Golas Testimony, August 2, 2000 Tr. at 113; Lambuth Testimony, July 13, 2000 Tr. at 91; Gallant Testimony, August 1, 2000 Tr. at 236.

196.          In August, 1998, Ms. Gallant had to suggest the intervention of Northrop Grumman legal counsel to get the ball rolling again on fixing Mail2 and to reassure the Northrop Grumman employees.  See Gallant Testimony, August 1, 2000 Tr. at 129.


197.          As a result of these threats, the “bleeding” in the Mail2 server was not stopped for six months (November, 1998), causing additional e-mail to be non-records managed and lost to this Court.

198.          No one was ever punished for the threats and nothing was ever done to recover the missing e-mail, or to report the incident to the proper authorities, including this Court.

199.          The President never even discussed the threats with his Chief of Staff earlier this year despite their prominence in this Court, Congress, and the news media.

200.          The threats are material to this proceeding:

[By Mr. Klayman:]       And the threats having been in made in the context of Mail.2, you wouldn’t have sluffed it off as immaterial, would you.

 

[By Mr. Ruff:]               Certainly not. 

See E-mail Hearing Testimony of Charles F. C. Ruff (hereinafter “Ruff Testimony”), August 28, 2000 at 74.

 

J.         Clinton-Gore White House Threats Obstructed Court’s Processes and Testimony of Witnesses.

 

201.          These threats have resulted in less than forthright testimony before this Court by at least one of the victims.  Because of the threats he suffered, Robert Haas is not telling the truth when he denies that he told anyone he felt in fear for his life and that he found incriminating e-mail in the Project X e-mail on Filegate and a host of other Clinton scandals. See Haas Testimony, August 2, 2000 Tr. at 187-190; Haas Testimony, August 15, 2000 Tr. at 22-23.


202.          Because of the threats made to him by White House officials over Mail2, Haas was in  fear for his life.  See Hall Testimony, July 31, 2000 Tr. at 98-99; Lambuth Testimony, August 1, 2000 Tr. at 32.

203.          This was corroborated by Mr. Sparks’ testimony.  See Sparks Testimony, August 16, 2000 Tr. at 54-57, 87-89.

204.          The testimony of Ms. Hall and Ms. Lambuth is also clear that Haas told both of them that he found incriminating Filegate and other Clinton-Gore scandal e-mail.  See Hall Testimony, July 13, 2000 Tr. at 24.

205.           This was also corroborated by Mr. Sparks.  See Sparks Testimony, August 16, 2000 Tr. at 56.

206.          Haas admitted to Sheryl Hall that he felt compelled to deny that he saw incriminating e-mail relating to Filegate and other scandals because that he feared for his life. See Hall Testimony, July 31, 2000 Transcript at 101-104.

207.          The evidence is that a Clinton-Gore White House contractor, Robert Haas, was afraid he would be murdered because of the incriminating information he had found relating to Filegate and other scandals in the Project X e-mails and because of the threats he received from Clinton-Gore White House officials.  See Hall Testimony, July 31, 2000 Tr. at 38.

208.          In order to protect himself, Haas gave documents about Project X to a White House official, Sheryl Hall.  See Hall Testimony, July 31, 2000 Tr. at 96-98.


209.          Even after the scandal broke in February, 2000, the threats caused hesitation on the part of witnesses to come forward.  Betty Lambuth testified how she was still hesitant because of her fears of what would happen to her friends and former colleagues at the Clinton-Gore White House.  See Lambuth Testimony, August 1, 2000 Tr. at 96.

210.          And Howard “Chip” Sparks has testified how these threats and the general Clinton-Gore mode of retaliatory and intimidatory conduct continues to keep witnesses from coming forward to this Court with relevant information. See Sparks Testimony, August 16, 2000 Tr. at 80-81, 86-89.

211.          As described below, Northrop Grumman officials also knew of the threats. See, e.g., Haas Testimony, August 14, 2000 Tr. at 54-61.

 

K.        As a Result of the Threats and Fraudulent Secrecy Requirements Imposed on Some Who Knew about the Mail2 Problem, E-mail Evidence Was Lost Forever.

212.          In January 1998, Kathy Gallant joined the OA as the Associate Director for Information Systems and Technology (“IS&T”).  See Gallant Testimony, August 1, 2000 Tr. at 105-06.

213.          In this position, Gallant had general responsibility for computer operations within the the OA.  See Gallant Testimony, August 1, 2000 Tr. at 106.

214.          As part of these responsibilities, Gallant maintained the back up tapes for the e‑mail servers.  See Gallant Testimony, August 1, 2000 Tr. at 201-02.

215.          Due to a shortage of funds for purchasing new back up tapes, Gallant and her staff formulated a plan for recycling old back up tapes by writing over them.  See Gallant Testimony, August 1, 2000 Tr. at 202.

216.          Gallant asked OA counsel for permission to implement this plan but never received a response.  See Gallant Testimony, August 1, 2000 Tr. at 202.


217.          At that time, OA counsel was Mark Lindsay.  See Lindsay Testimony, August 22, 2000 Tr. at 145-146.

218.          Gallant then asked again for permission to implement the plan and indicated that she would go forward with it if there still was no response.  When she received no response, she went forward with the back up tape recycling plan.  See Gallant Testimony, August 1, 2000 Tr. at 202.

219.          Because Gallant had not been told about the Mail2 problem at that time, she did not realize that her tape recycling program would result in e-mail being permanently lost.  See Gallant Testimony, August 1, 2000 Tr. at 203.

220.          Robert Haas, and other Northrop Grumman contractor who was aware of the Mail2 problem, recognized that the back tape recycling program would make it impossible to recover the un-archived e-mail.  See Haas Testimony, August 14, 2000 Tr. at 179; Haas Testimony, August 15, 2000 Tr. at 43-44.

221.          Haas, because of the threats and secrecy requirements, felt he could not tell Gallant directly to stop the recycling to protect evidence from being destroyed.  Eventually, Betty Lambuth  conveyed the necessary information to Gallant and the recycling program was halted.  See Haas Testimony, August 15, 2000 Tr. at 44.

222.          However, six months of un-archived e-mail, which now can never be searched in response to Plaintiffs discovery requests, had already been destroyed. See Gallant Testimony, August 1, 2000 Tr. at 201-203.

223.          On June 1, 1998, Virginia Apuzzo, sent an e-mail “Memorandum For All EOP Lotus Notes E-Mail Users” concerning “Lotus Notes E-Mail Disk Space Shortage and What You Can Do to Help.”  See H. Ex. 9-16.


224.          This e-mail memorandum stated that “[b]ecause an archival copy of each e-mail is created when a message is sent, from a records management perspective, users can feel free to delete unneeded files from their desktop.”  See H. Ex. 9-16.

225.          This e-mail memorandum advised users to periodically review their e-mail and delete any unneeded messages.  See H. Ex. 9-16.

226.          Any messages deleted by users affected by the Mail2 problem prior to the “bleeding” being stopped in November, 1998, are not archived on ARMS.  See Hall Testimony, July 31, 2000 Transcript at 152-154.

227.          By encouraging users to read and delete e-mail quickly, Apuzzo’s e-mail memorandum ensured that e-mail would be deleted before it was copied to a back up tape during the normal, periodic back ups.   See Hall Testimony, July 31, 2000 Transcript at 152-154.

228.          For the users affected by the Mail2 problem, this means those e-mails are lost forever, as they are not on ARMS, were not backed up, and cannot be reconstructed as a result.  See Hall Testimony, July 31, 2000 Transcript at 152-154.

229.          On March 24, 1999, Apuzzo sent a follow-up e-mail memorandum to a broad range of e-mail users including those affected by the Mail2 problem reminding them to delete e-mail.  See H. Ex. 9-16 at E0545.

230.          The Apuzzo memorandum of June 1, 1998 urging the deletion of unarchived e-mail was never rescinded and therefore continues to be in effect to this day.  See E-Mail Hearing Testimony of Virginia Apuzzo (hereinafter “Apuzzo Testimony”) September 22, 2000 Tr. at 62, H. Ex. 9-16.


231.          Ms. Lambuth was aware that this memo was disseminated and, to no avail, told her superiors that the Apuzzo e-mail memorandum would cause e-mail to be lost.  See Lambuth Testimony, August 1, 2000 Tr. at 13-14, 55-58.

232.          The issuance of the Appuzzo e-mail memorandum and the failure to rescind it after the Northrop Grumman employees found the Mail2 problem undoubtedly caused relevant e-mails material to this case to be lost forever.

 

L.         Daniel Barry and Clinton-Gore Justice Department Lawyers Present False Deposition Testimony to This Court.

233.          Almost contemporaneously with these threats and resultant lost e-mail, Daniel Barry was designated by the EOP to give testimony in this case on “how personnel at the Clinton White House communicate, exchange information and store communications and information” and “to confirm that the Clinton White House’s e-mail, computer files and electronically-stored information were readily accessible.”  See Plaintiffs’ Opposition to the Executive Office of the President’s Motion for Protective Order, dated March 18, 1998 at 2, 3.

234.          On June 9 and June 10, 1998, in preparing for this deposition, Daniel Barry met for about ten hours with Sally Paxton, an attorney in the Cllinton-Gore White House Counsel’s Office, James Gilligan and Julia Fayngold-Covey.  August 3, 2000 Tr. at 122-124, 179-180.

235.          During this deposition, Clinton-Gore DOJ counsel elicited false sworn testimony from Barry that incoming Clinton-Gore White House e-mail was being records-managed:

[By Mr. Gilligan:]          Mr. Favish was speaking to you earlier, Mr. Barry about a situation he posited where somebody working in the White House would sent an E-mail from desk top PC to somebody in Idaho; do you recall that?


[By Mr. Barry:]            Yes

[By Mr. Gilligan:]          An E-mail of that kind, would that be stored in the Automated Records Management System?

 

[By Mr. Barry:]            Yes, it would.

[By Mr. Gilligan:]          How about the reverse, if an E-mail came in to Idaho to somebody’s desk top PC in the White House would that also be found stored in the Automated Records Management System?

 

[By Mr. Barry:]            If it was directed to their E-mail ID at the EOP, yes, it would be.

[By Mr. Gilligan:]          Thank you, sir. 

See June 11, 1998 Deposition of Daniel A. Barry at 282-283 (H. Ex. 50), see also Barry Testimony, August 3, 2000.

236.          Barry testified repeatedly that all e‑mails since 1994 had been properly captured, or were being records managed in a manner that allowed them to be searched in response to subpoenas and document requests:

[By Mr. Favish:]           The E-mail messages from July 14, ‘94, onward, are they are one hard drives now, are they on tapes, are they on both, what are they on?

 

[By Mr. Barry:]            They currently reside in the ARMS, Automated Records Management System data warehouse.

 

See June 11, 1998 Deposition of Daniel A. Barry at 145 (H. Ex. 50)

[By Mr. Favish:]           If somebody did send or receive E-mail on their official account from home, would be backed up and archived just as if it were sent from within their office.

 

[By Mr. Barry:]            Yes.

 

See June 11, 1998 Deposition of Daniel A. Barry at 274 (H. Ex. 50)


237.           Barry specifically testified that no e-mail information had been lost, when in fact at least six months of e-mail had been overwritten and lost.  See June 11, 1998 Deposition of Daniel A. Barry at 229-33 (H. Ex. 50), Gallant Testimony, August 1, 2000 Tr. at 201-203.

238.          At his deposition on June 11, 1998, Barry testified categorically that electronic mail that was transmitted from an external source to an individual at the Executive Office of the President with an electronic mail identification number would be stored in the ARMS.  This deposition testimony was false. See June 11, 1998 Deposition of Daniel A. Barry at 282-284 (H. Ex. 50); August 25, 2000 Tr. at 9.

239.          Barry spent eight (8) to ten (10) hours preparing for this deposition, and spent five (5) of these hours with Clinton-Gore Justice Department counsel James Gilligan and Clinton-Gore White House counsel Sally Paxton.  See June 11, 1998 Deposition of Daniel A. Barry at 37 (H. Ex. 50).

240.          Daniel Barry’s March 4, 1998 and March 30, 1998 Declarations and his June 11, 1998 testimony, in addition to his subsequent July 9, 1999 Declaration (described below), do not mention the persistent and ongoing failure of ARMS to records manage EOP e-mail, as described in the preceding findings.  See H. Ex.18, 21, 42, 44.

241.          On July 10, 1998, Barry wrote an e-mail to his supervisor, detailing how he:

...spent about 10 hours this week reading and marking up my declaration [sic] in the Alexander case. I faxed the pages that needed changing to Julia Feingold [sic] at DOJ and she is to submit the changes for inclusion into the final. I spend [sic] a considerable amount of time this week working on the Mail2 problem.

 

See H. Ex. 9-114, Barry Testimony, August 14, 2000 Tr. at 73-74.


242.          Despite Barry’s working on the Mail2 problem at the same time he was preparing an errata sheet for his previous deposition testimony, neither Barry nor his Clinton-Gore White House Counsel ever corrected the falsehoods in Barry’s deposition.  See, e.g., H. Ex. 23.

243.          In fact, a transcript of Barry’s deposition shows that he or someone in Clinton-Gore White House or DOJ specifically highlighted and/or underlined Barry’s false testimony, obviously because they were concerned about being caught.  See H. Ex. 50.

 

M.       Top Clinton-Gore White House and Justice Department Officials Knew of Mail2 But Did Nothing to Correct the Problem or Alert the Court and Other Proper Authorities.

 

244.          Contemporaneous with the threats and false testimony, virtually all relevant top Clinton-Gore White House officials knew of the Mail2 problem at least as early as May/June 1998.  The Mail2 problem was reported almost immediately to senior aides to President Clinton, including OA General Counsel Mark Lindsay, OA Director Ada Posey, Assistant to the President for Management and Administration Virginia Apuzzo, Counsel to the President Charles F.C. Ruff, and Deputy Chief of Staff John Podesta.  See Lindsay Testimony, August 23, 2000 Tr. at 5-6;  Posey Testimony, August 16, 2000 Tr. at 171-72; Apuzzo Testimony, September 22, 2000 Tr. at 32-33, 67; Ruff Testimony, August 28, 2000 Tr. at 55, Podesta Testimony, October 10, 2000 Tr. at 40-43; H. Ex. 9-1– 9-5.


245.          Each of these high-level White House employees comprehended the fundamental nature of the Mail2 problem and its adverse impact on the retrieval and production of documents in response to subpoenas, document requests, and other inquiries made to the Executive Office of the President.  See Lindsay Testimony, August 23, 2000 Tr. at 53-59, 62-69; Posey Testimony, August 16, 2000 Tr. at 169-76; Apuzzo Testimony, September 22, 2000 Tr. at 32-35; Ruff Testimony, August 28, 2000 Tr. at 58-59; Podesta Testimony, October 10, 2000 Tr. at 36-37, 40-43.

246.          Jason Baron, an attorney with the Department of Justice was the administration’s Armstrong expert.  See Baron Testimony, August 31, 2000 Tr. at 19-20, 47-48, 106.

247.          Immediately upon learning of the Mail2 problem in May/June 1998, Mark Lindsay consulted Jason Baron on the potential impact of the Mail2 problem on Armstrong’s document preservation requirements.  Baron is lawyer with the Federal Programs Branch section of the Clinton-Gore Justice Department, the section which represents the Clinton-Gore EOP in this case. See Baron Testimony, August 31, 2000 Tr. at 45-62.

248.          After being informed of the Mail2 problem by Laura Crabtree, Lindsay also  reported the problem to Posey and Apuzzo.  See Lindsay Testimony, August 23, 2000 Tr. at 34-35.

249.          Lindsay requested to see Apuzzo at once, and Apuzzo made herself immediately available.  See Apuzzo Testimony, September 22, 2000 Tr. at 32-33.

250.          Lindsay informed Apuzzo that “they had discovered . . . a problem in the system in which e-mails were not being captured.”  See Apuzzo Testimony, September 22, 2000 Tr. at 32-33.

251.          With Apuzzo’s tacit approval, Lindsay also tried to cut Ada Posey, former Director of the OA -- which oversees IS&T operations -- out of the loop of Mail2.  See Posey Testimony,  August 17, 2000 Tr. at 33-38.

252.          Eventually, Posey became so frustrated and upset about Lindsay’s and Apuzzo’s treatment of her she asked to be relocated to another job.  Chief of Staff John Podesta found her a job as an assistant to Bill Richardson, Secretary of the Department of Energy. Id. at 41-46


253.          The evidence shows that Posey wanted a transfer because she was concerned about Mail2, Mark Lindsay’s mishandling of it, and the dangers of being involved in an ongoing obstruction of justice.  It can be also inferred that Podesta found Posey a job with Bill Richardson to ensure her continued participation in the cover-up.  (Then-U.N. Ambassador Richardson had also offered a job for Monica Lewinsky, obviously to try to keep her quiet.)

254.          Apuzzo “felt it was imperative to get the information over to the appropriate people.”  See Apuzzo Testimony, September 22, 2000 Tr. at 33.

255.          Apuzzo requested “that a memo be drafted for [her] signature” to let John Podesta and Chuck Ruff know there was a problem.  See Apuzzo Testimony, September 22, 2000 Tr. at 33.

256.          Apuzzo understood that the Mail2 problem had serious legal implications:

[By Plaintiffs’ Counsel:]             Mr. Lindsay told you that one of the difficulties here was the impact on document production, identification and retrieval of documents in response to information requests?

 

[By Apuzzo:]                            I’m sure that we got to that point, yes, sir. 

 

See Apuzzo Testimony, September 22, 2000 Tr. at 34; see also id. at 93.

 

257.          Given the serious legal implications of Mail2, Apuzzo wanted to ensure Ruff was directly informed about Mail2.  See Apuzzo Testimony, September 22, 2000 Tr. at 35-38.

258.          Given the serious legal implications of Mail2, Apuzzo also delegated the handling of the Mail2 matter to Lindsay, her chief counsel.  She directed Lindsay to personally brief Podesta and Ruff.  See Apuzzo Testimony, September 22, 2000 Tr. at 39.


259.          A memorandum Apuzzo asked Lindsay to draft for her signature was entitled “Technical Anomaly in Automated E-mail Records Management System,” and was prepared within “a matter of hours” from the time she learned about the problem.  See H. Ex. 9-1– 9-5; See Apuzzo Testimony, September 22, 2000 Tr. at 49. 

260.          The memorandum dated June 19, 1998 was sent under Apuzzo’s signature to Podesta and Ruff as a “red dot” memo.  See Apuzzo Testimony, September 22, 2000 Tr. at 43, 45.

261.          Apuzzo used red dots to identify important matters, and to bring such matters to her superiors’ immediate attention.  See Apuzzo Testimony, September 22, 2000 Tr. at 45-46.

262.          The June 19, 1998 memorandum plainly described the ARMS system and its critical role in complying with subpoenas and other document requests, stating that

The main utility of the [ARMS] system is to provide a central e-mail repository with search and retrieval capability which ensures proper record keeping.  An important function the system supports is the identification and retrieval of documents in response to information requests.” 

 

See H. Ex. 9-3, 9-4 (emphasis added).

263.          The memorandum also clearly described the computer side of the Mail2 problem:

This memorandum is to advise you of an anomaly in the system involving the Mail2 server, which primarily supports the day-to-day e-mail traffic of the White House Office (WHO). . . .  In identifying which messages to save from Mail2, the ARMS system was designed to recognize user identifications with an electronic “stamp” which reads Mail2.  However, when user identifications for WHO . . . were entered into the system, the majority were hand-keyed using all capital letters as MAIL2.  Because ARMS was not programmed to recognize the all capital version, messages in certain categories for these Mail2 users have not been captured by or transferred to ARMS.  These omitted types of e-mails include: Incoming Internet e-mail[.]

 

See H. Ex. 9-3, 9-4 (emphasis added).


264.          The memorandum shows that high-level Clinton-Gore White House management actually knew as early as June 19, 1998 that there was a problem with the ARMS system associated with the White House’s Mail2 server, that the problem resulted in a failure to archive e-mails in the “central e-mail repository” and that, therefore, records potentially responsive to outstanding subpoenas and document requests had not been searched.  See  H. Ex. 9-3, 9-4.

265.          The fact that this “red dot” memorandum was addressed urgently by Apuzzo to the Deputy Chief of Staff, and forwarded to the Clinton-Gore White House Counsel, reflects the seriousness with which the Clinton-Gore White House viewed this problem.  See Apuzzo Testimony, September 22, 2000 Tr. at 45-46.

266.          After sending the memo to Podesta and Ruff, Apuzzo directed Lindsay “to be certain that they [Podesta and Ruff] were both briefed in person.”  See Apuzzo Testimony, September 22, 2000 Tr. at 39.

267.          On or about June 19, 1998, the same date as the Apuzzo memo, Lindsay orally briefed Podesta and Ruff on the Mail2 problem.    See Lindsay Testimony, August 23, 2000 Tr. at 54-56, 62-63.

268.          Ruff admits that he learned of the Mail2 problem on or about June 19, 1998 from either the Apuzzo  memo or Lindsay’s contemporaneous briefing.  See Ruff Testimony, August 28, 2000 Tr. at 51-52; 56.

269.          A note from Apuzzo stating that she had, that afternoon sent the memo to Podesta, is handwritten on Ruff’s copy of the memorandum. See Ruff Testimony, August 28, 2000 Tr. at 55.


270.          Upon learning of the Mail2 problem, Ruff understood that it related to the retrieval of documents in response to subpoenas and documents requests in all cases, not just the Lewinsky case, including this case. (“In the sense that if this case involved an e-mail request for production, then it would certainly be covered by the retrieval system.”)  See Ruff Testimony, August 28, 2000 Tr. at 57; see also id. at 66.

271.          Ruff admits that he knew that Mail2 was a potential problem “which needed to be explored to determine whether there had been some infection of [the] problem into past subpoena compliance.”  See Ruff Testimony, August 28, 2000 Tr. at 61-62.

272.          Ruff knew that failure to comply with subpoenas and failure to produce documents requested from the Clinton-Gore White House could lead to obstruction of justice charges on par with Watergate  See Ruff Testimony, August 28, 2000 Tr. at 66.

273.          Ruff repeatedly admitted that problems with the integrity of Clinton-Gore White House document productions were his responsibility  See Ruff Testimony, August 28, 2000 Tr. at 35-36; see also id. at 69, 116.

N.        Failures of Memory, Contradictory Testimony By Clinton-Gore White House Lawyers Belie Claims of Good Faith Concerning E-mail Scandal.

274.          On June 19, 1974, Ruff gave an interview to Bob Woodward of the Washington Post, in which he stated that if he were ever called to testify regarding the Watergate prosecutions at a future date, he would “say gee[,] I just don’t remember what happened back then,” so as to avoid indictment for perjury.  Ruff Testimony, August 28, 2000 Tr. at 43-45.

275.          Ruff had the ultimate responsibility to ensure that the Clinton-Gore White House Counsel’s Office  “took appropriate steps” to deal with the Mail2 problem, including “ensur[ing] that searches were conducted and an appropriate response made to any subpoena or document request.”  Ruff Testimony, August 28, 2000 Tr. at 86, 117; see also id. at 123-124.


276.          Ruff knew that the Mail2 problem infected Clinton-Gore White House document productions.  See Ruff Testimony, August 28, 2000 Tr. at 83.

277.          In order to determine the scope of the Mail2 problem, Clinton-Gore White House Counsel witnesses claimed that a test was performed on four persons’ e-mail inboxes, to determine if the inboxes contained any unarchived e-mail from Lewinsky.

278.          There is substantial contradictory testimony as to who ordered the purported test.  See Lindsay Testimony, August 23, 2000 Tr. at 142-143 (Lindsay claims he cannot remember who ordered the test.); compare id. at 145 (Lindsay claims Ruff ordered the test.) with Ruff Testimony, August 28, 2000 Tr. at 63 (Ruff claims he did not order the test.) and E-mail Hearing Testimony of Cheryl Mill (hereinafter “Mills Testimony”). September 1, 2000 Tr. at 65 (Mills claims not to remember if Ruff ordered the test.).  See also Ruff Testimony, August 28, 2000 Tr. at 81-82 (Ruff did not give any specific instructions regarding the test’s scope or conduct.).

279.          There is substantial contradictory testimony as to which four in-boxes were purportedly ordered tested.  Compare Lindsay Testimony, August 23, 2000 Tr. at 143 (Lindsay claims Raines’s and Lewinsky’s in-boxes tested.) with Haas Testimony, August 2, 2000 Tr. at 200 (Haas claims Raines’s and Lewinsky’s in-boxes not tested.) (Lewinsky did not have an in-box.).  See Mills Testimony, September 1, 2000 Tr. at 70-71 (Mills does not know which four in-boxes were tested.).

280.          Independent of any direction from the Clinton-Gore White House Counsel, Haas discovered approximately 400 e-mail documents from Lewinsky in Raines’ in-box during a cursory search on or about June 20, 1998.  See Haas Testimony, August 2, 2000 Tr. at 199-200; Haas Testimony, August 14, 2000 Tr. at 6, 29, 183.


281.          These e-mail documents were the missing half of the Lewinsky e-mail correspondence that Barry had found in 1998, and consisted of incoming e-mails from Lewinsky that were not captured on ARMS.  See Haas Testimony, August 2, 2000 Tr. at 207-208.

282.          The documents were eventually transferred to Mills and Peterson.  See Haas Testimony, August 14, 2000 Tr. at 14.  See also Mills Testimony, September 1, 2000 at 72.  Mills claims not to remember who gave her the documents.  Id.

283.          Peterson allegedly compared the newly-discovered e-mail documents compiled independently by Haas with documents that had already been produced in compliance with subpoenas in order to determine whether previous productions were complete.   Peterson Testimony, August 28, 2000 Tr. at 200-203.

284.          Peterson claims that she compared the newly-discovered e-mail documents with a control group of documents that had already been produced, finding that the two batches were identical, thus indicating that previous searches were adequate.  Peterson Testimony, August 28, 2000 Tr. at 200-203.

285.          Peterson claims that she discarded the control group as soon as the purported test was completed.  Peterson Testimony, August 28, 2000 Tr. at 207.

286.          In fact, after being confronted with hard evidence by the Office of Independent Counsel Ms. Peterson was forced to retract her false testimony about her so-called test of the e-mail.  See Third Declaration of Michelle Peterson, September 27, 2000, H. Ex. 111 at attachment 2.


287.          Neither Peterson nor Ruff ever reviewed any subpoena during the purported test to determine if any of the newly-discovered e-mails were responsive, despite the fact that such a review was necessary to make this determination, which was the very reason for conducting the purported test in the first place.  See Ruff Testimony, August 28, 2000 Tr. at 86; Peterson Testimony, August 28, 2000 Tr. at 202-207.

288.          Contrary to her testimony, it was the pattern and practice of  Peterson’s and her White House Counsel Office’s  not to supplement past document productions with subsequently-discovered responsive documents, but rather to conceal any subsequently-discovered responsive documents.  See H. Ex. 111.

289.          Peterson testified falsely on the document productions of the Clinton-Gore White House Counsel’s Office.  See Peterson Testimony, August 28, 2000 Tr. at 264-265, H. Ex. 111.

290.          Given Peterson’s false testimony to this Court about the practice of Clinton-Gore White House with respect to document production, her testimony about any test of e-mail is presumably false.

291.          Based upon the foregoing findings of fact and the reasonable inferences to be drawn therefrom, the purported test never took place.  Any examination of Mail2 e-mail was only to check if and how the substance of the e-mails would put the Clinton Administration in legal jeopardy.  (Hence, the mysterious “search” list with the high official names of Sidney Blumenthal, Erskine Bowles, Ira Magaziner, and John Podesta.  See Haas Testimony, August 14, 2000 Tr. at 23-27.)  Once it became clear that Mail2 e-mail were responsive to document requests from Lewinsky and other investigators, the Clinton-Gore White House, through the use of threats to keep contractors in line, kept investigators in the dark about Mail2 and simply shut down any real attempt to fix the Mail2 problem.


292.          No good faith test was never actually performed, and none of the government witnesses are able to remember any specific details concerning who ordered the test, or its scope, among other implausible lapses of memory.  See Ruff Testimony, August 28, 2000 Tr. at 62, 65, 82-86 (Ruff claims not to remember if a subpoena was reviewed in the course of the test.); Lindsay Testimony, August 23, 2000 Tr. at 142-145 (Lindsay claims Ruff admitted ordering the test).  Compare id. with Ruff Testimony, August 28, 2000 Tr. at 63, Mills Testimony, September 1, 2000 Tr. at 70. (Contradictory testimony as to whether Ruff ordered Lindsay to do the test).  Much of the Clinton-Gore White House witnesses’ testimony is contradictory.  Compare Lindsay Testimony, August 23, 2000 Tr. at 143 with Haas Testimony, August 2, 2000 Tr. at 200, Haas Testimony, August 14, 2000 Tr. at 23-27 (Contradictory testimony as to whose computers were ordered to be tested.).  See Mills Testimony, September 1, 2000 Tr. at 72 (Mills claims not to remember how the newly-discovered e-mail documents came into the White House Counsel’s Office.).  See H. Ex. 111 (It was Peterson’s and the Clinton-Gore White House Counsel’s Office pattern and practice not to supplement document productions with newly-discovered responsive documents.).

293.          The Clinton-Gore White House Counsel’s Office obstruction on e-mail was part of a deliberate “stall strategy” admitted by Peterson to Sheryl Hall to keep information from Plaintiffs until at least after Bill and Hillary Clinton left the White House.  Second Declaration of Sheryl L. Hall, December 7, 1999 at ¶ 7; Hall Testimony, July 13, 2000 Tr. at 95.

 

O.        The Fact That Lower Level Clinton-Gore White House Employees and Contractors Knew of Mail2’s Continuing Impact on Document Production, Shows Top Officials and Lawyers Knew As Well.

 

294.          IS&T’s own employees and contractors, who were untrained in the law, recognized  the continuing impact of Mail2 on document production to courts, Congress, and the Independent Counsel.  See Haas Testimony, August 14, 2000 Tr. at 34.


295.          The effect of the failure to manage e-mail on ARMS on document production was a major concern of Haas and the Northrop Grumman contractors with whom he worked in IS&T.  See Haas Testimony, August 14, 2000 Tr. at 34-35.

296.          Haas knew that it was important to get non-records managed e-mails into ARMS so it could produced to courts, Congress, and the Independent Counsel.  See Haas Testimony, August 14, 2000 Tr. at 35.

297.          Haas knew that there were legal consequences for not producing documents in response to a subpoena.  See Haas Testimony, August 14, 2000 Tr. at 75.

298.          After they had told Northrop Grumman officials of the threats, the Northrup Grumman employees expected that there would be movement to correct the problem and produce the documents.  See Haas Testimony, August 14, 2000 Tr. at 75.

299.          After Northrop Grumman management contacted the Clinton-Gore White House about Mail2, Haas and the other Northrup Grumman employees thought that the project would go forward so that the documents could be produced.  See Haas Testimony, August 14, 2000 Tr. at 75.

300.          Spriggs of Northrop Grumman produced a plan called a Statement of Work (“SOW”) to analyze the solution to the problem of the missing e-mail, but the plan went into a “black hole.”  See Haas Testimony, August 14, 2000 Tr. at 75-76.

301.          After Spriggs produced the plan, there were no instructions from Clinton-Gore White House officials to do anything more on the project to restore the missing e-mail.  See Haas Testimony, August 14, 2000 Tr. at 76-77.

302.          Northrop Grumman never received an okay to proceed on the project outlined in the SOW.  See Haas Testimony, August 14, 2000 Tr. at 85.


303.          Northrup Grumman had the capability and sophistication to solve the Mail2 problem.  See Haas Testimony, August 14, 2000 Tr. at 84.

304.          Northrop Grumman and Clinton-Gore White House knew that the Mail2 reconstruction project had risks “due to the high visibility to the public, political, and legal attention or requirements associated with the unrecorded documents.”  See Haas Testimony, August 14, 2000 Tr. at 87; H. Ex. 24 at NGL00418.

305.          Northrop Grumman was awaiting the Clinton-Gore White House’s approval of the SOW to begin work to correct the e-mail problem.  August 14, 2000 Tr. at 89.

306.          Resources were never allocated by the Clinton-Gore White House to cure the Mail2 problem.    See Haas Testimony, August 14, 2000 Tr. at 137-138.

307.          Northrop Grumman took the position that fixing Mail2 was not within the scope of the base services contract.    See Haas Testimony August 15, 2000 Tr. at 40-41; H. Ex. 9-63.

308.          The proposal prepared by Spriggs to study the Mail2 problem remained in limbo after Spriggs submitted it to the Clinton-Gore White House.   See Haas Testimony, August 15, 2000 Tr. at 42.

309.          Northrop Grumman was told by the Clinton-Gore White House only to work on a proposal to study the problem, and not to work on the problem itself.  August 15, 2000 Tr. at 42-43.

310.          When Mail2 was discovered, it was understood and discussed by everybody involved that relevant documents were in jeopardy of not being produced in compliance with subpoenas.    See Haas Testimony, August 15, 2000 Tr. at 57-58.


311.          The four Northrop Grumman employees who were at the working level of  the Mail2 problem – Haas, Spriggs, Salim and Golas – were not given resources and could not talk to anyone about getting resources to address the Mail2 problem, which made it impossible to correct the problem.  See Golas Testimony, August 15, 2000 Tr. at 73.

312.          Northrop Grumman’s removal of  Lambuth from the project was another obstacle towards solving Mail2.  See Golas Testimony, August 15, 2000 Tr. at 73.

313.          After Crabtree and Lambuth had left OA, and Gallant was planning to on leaving OA, the four Northrop Grumman employees went to Paulette Cichone (then OA Deputy Director) in an effort to get management direction to address the Mail2 problem.  See Golas Testimony, August 15, 2000 Tr. at 95-96.

314.          Golas was also concerned that the Mail2 problem was not being resolved.  See Golas Testimony, August 2, 2000 Tr. at 118-19.

315.          Daniel Barry began sending a series of e-mails to his superiors and colleagues in the Clinton-Gore White House expressing concern about the impact of Mail2 on document searches.  In an e-mail dated August 13, 1998, Barry told his superior that “the records must be recreated and any searches need to be reperformed if the requesters feel it is necessary...  This seems like a daunting proposition but I do not see any other alternative.”  See H. Ex. 9-23.

316.          The evidence adduced to date shows that Barry’s e-mails expressing concerning about the Mail2 problem resulted from the legal risks he faced at having being put forward by the Clinton-Gore White House and its counsel to give false testimony to this Court.

317.          Barry clearly understood that the Mail2 problem required him to re-perform searches of the ARMS system he made in response to document requests.  See Barry Testimony, August 3, 2000 Tr. at 80.


318.          Barry e-mailed his manager again on September 1, 1998 requesting a meeting to “discuss the plan/approach for proceeding” on the Mail2 problem.  See H. Ex. 9-25.

319.          Barry e-mailed his manager and Kathleen Gallant on September 10, 1998, telling them “I am growing increasingly concearned [sic] about the seeming lack of movement on the Mail2 problem.  Do you know where the hold up is.  We have known about this problem for 4 months now and not a single record has been passed to ARMS...even worse, the root problem has not been fixed.”  See H. Ex. 9-26.

320.          On October 20, 1998, Northrop Grumman submitted a proposal or Scope of Work (“SOW”) to OA for solving the Mail2 problem.  The SOW was not only for an initial analysis of the Mail2 problem, but also included actual reconstruction of the e-mail. See H. Ex. 25-416 to 25-465.

321.          Shortly thereafter, on October 27, 1998, Plaintiffs served their Second Set of Requests for the Production of Documents on the Clinton-Gore White House.  Request Numbers 28-30 seek documents related to Clinton-Gore White House e-mail.

322.          Thus for two years - - since October of 1998 - - Defendants have had in their possession a proposal that indicating that for $602,492.00, the missing e-mail could be reconstructed and archived in word-searchable format.

323.          The Clinton-Gore White House  never acted on Northrop Grumman’s proposal, and the work needed to address the Mail2 problem was never undertaken.


324.          On November 13, 1998, Barry e-mailed his manager, James Wright, noting that Northrop Grumman needed a “response on the MAIL2 IWO.”  See H. Ex. 9-31.  An IWO is an Initial Work Order. See Barry Testimony, August 18, 2000 Tr. at 13.   By agreeing to the proposal from Northrop Grumman in response to the IWO, the White House would have been authorizing Northrop Grumman to undertake a comprehensive assessment of the Mail2 problem. See Barry Testimony, August 18, 2000 Tr. at 12-13.

325.          Barry received a copy of the Northrop Grumman response to the IWO for Northrop Grumman to evaluate the Mail2 problem.  See Barry Testimony, August 18, 2000 Tr. at 10-12.

326.          By e-mail dated November 12, 1998 to Joseph A. Vasta, Devere Patton, Robert Helms, John Spriggs, James Wright, and Lynnae Roscoe on the subject of a “Mail2 meeting,” Barry stated that it is clear that the Clinton-Gore White House cannot proceed as described in the IWO.  See Barry Testimony, August 18, 2000 Tr. at 12-13; H. Ex. 43.

327.          Because no one else in Clinton-Gore White House was addressing the problem, Barry took it upon himself to read the IWO.  See Barry Testimony, August 18, 2000 Tr. at 13.

328.          Barry tried to call a meeting with Spriggs and Vasta to discuss the Barry’s concerns about the IWO and the need to find solutions to the Mail2 problem.  See Barry Testimony, August 18, 2000 Tr. at 13; H. Ex. 43.

329.          In this e-mail Barry told his supervisor James Wright and the Northrop Grumman employees most involved in the Mail2 matter that they needed to sit down and discuss it.  See August 18, 2000 Tr. at 18; H. Ex. 43.

330.          Barry’s e-mail of November 12, 1998 was prompted by week after week of meetings at which Mail2 was an action item, but there was no action and no one from the Clinton-Gore White House was getting back to Northrop Grumman.  See H. Ex. 43; Barry Testimony, August 18, 2000 Tr. at 18.


331.          From July of 1998 to February of 1999, Barry sent a continuous stream of e-mail and memoranda to his supervisors at the EOP, including e-mail expressing his concern that the Mail2 problem was not being addressed and its effect on document production.  See Barry Testimony, August 21,2000 Tr. at 141-143; H. Ex. 39-1002, 9-40, 9-19, 9-22, 9-23, 9-24, 9-25, 9-52, 9-25 (E2016 and 2017), 9-26, 9-109, 9-110, 9-27, 9-30, 9-76, 9-31, 9-29, 9-76, 9-103, and 9-67.

332.          Employees of Clinton-Gore White House and Northrop-Grumman expressed concerns that the Mail2 problem was not being addressed. See, e.g., H. Exs. 9-22, 9-23, 9-25, 9-26, 9-27, 9-30, 9-31, 9-40, and 9-52.

333.          The hierarchy of the OA represented to its technical staff that it was investigating whether the Mail2 problem could be addressed with Armstrong funds.  See, e.g., H. Ex. 9-95, 9-123.

334.          Once she understood the extent of the Mail2 problem in June, 1998, Kathy Gallant realized that additional funds would be needed to fix it.  See Gallant Testimony, August 1, 2000 Tr. at 140-141.

335.          Gallant knew there were funds available in the Armstrong account and that these funds could be requested and used to correct the Mail2 problems.  See Gallant Testimony, August 1, 2000 Tr. at 140.

336.          Gallant had to go through Mark Lindsay to get authorization to use the Armstrong funds.  See Gallant Testimony, August 1, 2000 Tr. at 140.

337.          Before Gallant had learned about Mail2, she had made a request to Lindsay to use Armstrong funds to purchase additional equipment to be used by Tony Barry “to support the ARMS system.”  See Gallant Testimony, August 1, 2000 Tr. at 139-140.

338.          Lindsay indicated it would not be a problem to get the Armstrong funds to purchase the equipment to “augment the ARMS system.”  See Gallant Testimony, August 1, 2000 Tr. at 140.


339.          When she learned about Mail2, Gallant asked Lindsay to obtain authorization to use Armstrong funds to fix Mail2 as well.  See Gallant Testimony, August 1, 2000 Tr. at 140-141.

340.          There was approximately $1.5 million in Armstrong funds available if the authorization could be obtained.  See Gallant Testimony, August 1, 2000 Tr. at 140.

341.          Lindsay indicated that it would not be a problem to get those funds to fix Mail2.  See Gallant Testimony, August 1, 2000 Tr. at 140-141.

342.          Gallant made repeated requests for funds to correct the Mail2 problem.  See Gallant Testimony, August 1, 2000 Tr. at 141.

343.          Gallant was told almost on a weekly basis that Lindsay was working on getting the funds.  See Gallant Testimony, August 1, 2000 Tr. at 141.

344.          The funds were never approved or received by Gallant or her department to fix the Mail2 problem.  See Gallant Testimony, August 1, 2000 Tr. at 139-142, 209-210.

345.           Other persons in addition to Lindsay were well aware of her repeated requests for the Armstrong funds to correct the Mail2 problem,  including Ada Posey and Paulette Cichon, as well as individuals in the financial management department.  See Gallant Testimony, August 1, 2000 Tr. at 140. at 209-210.

 

P.         Plaintiffs Repeatedly Put Clinton-Gore White House and Department of Justice on Notice Concerning Mail2.

346.          Plaintiffs’ counsel put Defendants’ counsel on notice about the Mail2 problem on multiple occasions.


347.          In December 1998, Insight Magazine published an article entitled “Looking for Information in all the Places,” which disclosed the existence of Project X, and reported that a problem with a server in a White House computer system might have resulted in the nonproduction of e-mails responsive to subpoenas by Congressional panels and the Independent Counsel.  See H. Ex. 20.

348.          On December 8, 1998, Plaintiffs’ counsel sent a letter and a copy of the Insight Article to James Gilligan, counsel for Defendants.  The letter stated in pertinent part:

The attached articles from . . . Insight [M]agazine reference documents that are covered by our first and second document requests, and deposition questions.  Please take steps to assure that no documents responsive to these requests, referenced directly or indirectly in the attached articles, are destroyed.

 

Additionally, these articles raise serious questions about the truthfulness and veracity of testimony elicited and presented in the 30(b)(6) depositions.

See H. Ex. 20 (emphasis in original).

349.          The Insight Article was distributed to Daniel Barry as an attachment to the summary of the December 9, 1998 COTR meeting between Northrop Grumman and government employees.  See H. Ex. 9-63 at NGL00252, NGL00258-NGL00259.

350.          The December 9, 1998 COTR meeting summary stated:

Northrop Grumman informed this meeting’s attendees that it had alerted the Government about the article as soon as Northrop Grumman discovered it.

 

See H. Ex. 9-63 at NGL 00253.

351.          Robert Haas read the Insight Article “as soon as it came out[;]” and discussed it with Sandra Golas and John Spriggs, who then reviewed it for themselves.  See Haas Testimony, August 14, 2000 Tr. at 140-141.


352.          Karl Heissner received the Insight Article from a colleague in or around December 1998.  See Heissner Testimony, August 15, 2000 Tr. at 164-166.

353.          At a December 15, 1998 Status Hearing, Plaintiffs’ counsel notified this Court and Clinton-Gore White House counsel of the content and ramifications of the Insight Article.  Lawyers for the Clinton-Gore White House, including Ms. Shapiro, Ms. Weismann, Mr. Gilligan, Ms. Giles, and Ms. Paxton, were present at this hearing.  See December 15, 1998 Tr. at 2, 12-13.

354.          The Court provided Clinton-Gore White House  counsel with the opportunity to rebut the allegations made in the Insight Article, and Clinton-Gore White House lawyer Elizabeth Shapiro represented that she did not have enough information to do so:

THE COURT:  One other issue, Ms. Shapiro, since [Mr. Klayman] raised this issue about the hundred thousand e[-]mails and handed up that article, do you want to say anything more about that? I will give you the opportunity since he sprung that.

 

MS. SHAPIRO:           I don’t have enough information right now to be able to give you a full explanation.

 

THE COURT:  I just don’t want you to say that I didn’t give you the chance.

 

See December 15, 1998 Tr. at 34.

355.          Michelle Peterson saw the Insight Article during a hearing before this Court in December 1998, and understood that the article questioned the completeness of document productions.  See E-mail Hearing Testimony of Michelle Peterson (hereinafter “Peterson Testimony”) August 28, 2000 Tr. at 176-178.  She stated during examination by Plaintiffs’ counsel:

I understood when you . . . were asking the question in court [in December 1998] and raising the [December 8, 1998] letter that you were questioning whether the document production had been complete.

 

See Peterson Testimony, August 28, 2000 Transcript at 177-178.


356.          After seeing the Insight Article, Ms. Peterson discussed it with Clinton-Gore Justice Department lawyers, either Mr. Gilligan, Elizabeth Shapiro, or Allison Giles.  During these discussions, Clinton-Gore Justice Department lawyers questioned Ms. Peterson regarding allegations made in the Insight Article about the e-mail problem.  See Peterson Testimony, August 28, 2000 Transcript at 180-183.

357.          Northrop Grumman also discussed the Insight article with the Clinton-Gore White House around the time it was published in December, 1998.  On December 11, 1998, Joseph A. Vasta, Project Manager for Northrop Grumman, prepared a Memorandum to DeVere Patton, the Clinton-Gore White House’s COTR on the Northrop Grumman contract concerning the “Weekly COTR Meeting December 9, 1998.”  H. Ex. 9-63 at 1.

358.          The COTR is the Contracting Officer’s Technical Representative, and the weekly COTR meeting is a meeting between the COTR and the contractor “to go over issues related to the contract from a technical perspective.”  See Barry Testimony, August 3, 2000 Tr. at 168.

359.          Enclosed with the December 11, 1998 meeting notes from Vasta was a copy of the December 8, 1998 Insight Article “Looking for Information in All the Wrong Place.”  See H. Ex. 9-63 at 1.

360.          Northrop Grumman “read a portion of and then provided to the Government a hardcopy of” the Insight Article at the December 9, 1998 meeting.  See H. Ex. 9-63 at 2.

361.          Northrop Grumman “alerted the Government about the article as soon as Northrop Grumman discovered it.”  See H. Ex. 9-63 at 2.


362.          At the December 9, 1998 meeting, “Northrop Grumman emphasized it would proceed with [the Mail2 E-mail Reconstruction project] as it would with any other technical problem [and] re-emphasized that no actions on [Northrop Grumman’s] part has been or will be clandestine in any way.”  See H. Ex. 9-63 at 2.

363.          The December 9, 1998 COTR meeting was attended by Clinton-Gore White House employees Dale Helms, DeVere Patton, Tracy Breeding, and David Peterson.  See H. Ex. 9-63 at 1.

364.          The COTR meeting notes with the attached Insight article were also sent to the following Clinton-Gore White House employees: Tony Barry, Dale Helms, Lynnae Roscoe, Tracy Breeding and David Peterson.  H. Ex. 9-63 at 1.

365.          Mark Lindsay became aware of, and read, the Insight Article prior to his March 1999 testimony before the House Committee on Government Reform.  See Lindsay Testimony, August 23, 2000 Tr. at 102, 116.

366.          At an April 8, 1999 Rule 108(m) conference which covered e-mail issues, Plaintiffs’ counsel reinforced to Mr. Gilligan the gravity of the e-mail problem, and specified that it therefore affected previous Clinton-Gore White House’s document production and testimony.  In response, Mr. Gilligan did not confirm or deny the Insight article.   See Declaration of Thomas Fitton, attached hereto as H. Ex. 142.

367.          In the case of Barr v. EOP, Case No. 1:99cv09165 (JLG), Plaintiffs’ counsel filed for another client, Representative Bob Barr, a First Set of Requests for Production of Documents to Defendant EOP on October 18, 1999, which made a specific reference to non-records-managed e-mail.  See Plaintiff’s First Set of Requests for Production of Documents to Defendant Executive Office of the President, attached hereto as H. Ex.143 at 4 (“including both records managed e-mail and . . . non records managed e-mail, which said non records managed e-mail is sometimes known or referred to as ‘mail 2’”)).


368.          Daniel Barry and Michelle Peterson performed the search for responsive documents pursuant to this request.  See Peterson Testimony, August 28, 2000 Tr. at 239-241.

369.          In objections to a specific request to search unrecorded e-mail and a reference to Mail 2, the Clinton-Gore White House and the Department of Justice made no mention of this e-mail issue, filing another materially false pleading before this Court.  See Response of Defendant EOP to Palintiffs First Set of Requests for Production of Documents filed on December 21, 199 in Barr  v. EOP Case No. 1:99cv09165 (JLG).

 

Q.        Northrop Grumman Officials and Their Counsel Were Notified of the Threats, Obstruction of Justice, And Worked With The Clinton-Gore White House To Coverup These Ongoing Crimes.

 

370.          In August 1998, Robert Haas and his colleagues sought a meeting with their Northrop Grumman managers to discuss Project X because individuals like Betty Lambuth who were directly involved with Project X were leaving the agency.  They wanted to talk to counsel at Northrop Grumman “to see if [they] were protected from this happening to [them].”  See Haas Testimony, August 14, 2000 Tr. at 54.

371.          At that time,  Steve Hawkins was Northrop Grumman’s Program Manager for the EOP contract, but was preparing to leave the Clinton-Gore White House.  Joseph Vasta became Hawkins’ executive officer to learn Hawkins’ position in preparation for taking over upon Hawkins’ leaving the Clinton-Gore White House.  See E-mail Hearing Testimony of Joseph Vasta (hereinafter “Vasta Testimony”), November 3, 2000 (morning sesssion) Tr. at 29.


372.          On August 28, 1998, Haas, John Spriggs and  Sandra Golas (the” Project X team”) met with Vasta and attempted to discuss Project X without telling Vasta what Project X was since they had been threatened by Mark Lindsay and Laura Crabtree with retaliation if they disclosed the details of Project X to anyone, including their managers.  See Vasta Testimony, November 3, 2000 Tr. (morning session) at 29 - 34.

373.          At that meeting, Haas, Spriggs and Golas told Vasta that they were not allowed to make notes about Project X, that they were not allowed to discuss Project X with anyone else, and that any meetings they had about Project X had to be out of the earshot of anyone else.  See Vasta Testimony, November 3, 2000 Tr. (morning session) at 29-30; H. Ex. 120 at 2 (“Summary of Project X Discussions”).

374.          Following the meeting, Spriggs reminded Vasta that they were not to make notes about Project X and asked Vasta for the notes that he had made during the meeting.  Vasta turned these notes over to Spriggs and has not seen them since.  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 6-9; H. Ex. 122 at 31.

375.          On September 2, 1998, the Project X team had a follow up meeting with Steve Hawkins and Vasta, and informed them that they wanted to speak with a Northrop Grumman attorney.  See H. Ex. 120 at 2 (“Summary of Project X Discussions”).

376.          The next day, while Hawkins and Vasta were meeting in Hawkins’ office,  Haas came in and informed them that he had been threatened by Clinton-Gore White House employees with jail if he did not keep Project X secret.  See Vasta Testimony, November 3, 2000 (morning session) Tr. at 29-30; E-mail Hearing Ex. 120 at 2 (“Summary of Project X Discussions”).


377.          Significantly, though two years have elapsed, Lucente remembered the threat with the same wording as that testified to by Haas.  Compare Vasta Testimony, November 3, 2000 (first) Tr. at 33 (“[Haas] used the term – he was told there was a jail cell with his name on it.”) with Haas Testimony, August 14, 2000 Tr. at 36 (“The words were obvious.  We have a jail cell with your name on if you tell anybody.”).

378.          Vasta’s impression from these meetings was that the Project X team had been put in a no-win situation by Lindsay and Crabtree who had directed them to work on Project X while simultaneously threatening to fire them if they discussed the project with anyone including their managers.  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 2-6; H. Ex. 122 at 30.

379.          At this time, Jim DeWire was employed by Northrop Grumman as the Operations Unit Program Director and was the immediate supervisor of Hawkins and Vasta.  See E-mail Hearing Testimony of Joseph Lucente (hereinafter “Lucente Testimony”), November 1, 2000 Tr. at 60, 82-83.

380.          Hawkins and Vasta reported their conversations with Haas and his team to Jim DeWire, who requested that Vasta prepare a brief summary of the events surrounding the meetings.  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 22-23.

381.          In response to this request, Vasta prepared a document titled “Summary of Project X Discussions” which he faxed to Jim DeWire’s administrative assistant on September 9, 1998.  The fax cover sheet indicated that the fax was “urgent.”  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 5, 22; H. Ex. 120.  Vasta confirmed the accuracy of this summary during his testimony on November 3, 2000.  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 23.

382.          What troubled Vasta about Project X was that good people were threatened by the Clinton-Gore White House.  See Vasta Testimony, November 3, 2000 (morning session) Tr. at 28.  He believed that the employees were under duress and needed somebody to intervene and rectify the situation.  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 11.


383.          Vasta’s Summary of Project X Discussions notes that the team had been instructed not to discuss Project X with anyone because a Clinton-Gore White House employee (Barry) was preparing to testify on Capitol Hill about a search for e-mail related to Monica Lewinsky.  H. Ex. 120 at 2-3.  Haas had also told Vasta that e-mails from, to or about Monica Lewinsky were not being archived and had not been delivered in response to requests for documentation and that this information was not included in Barry’s testimony on Capitol Hill.  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 24-25.

384.          Plaintiffs have found no record of Daniel Barry testifying on Capitol Hill in 1998.  Barry did testify to Plaintiffs in on June 11, 1998.  The above facts show that the Clinton-Gore White House intended to prevent accurate and complete testimony from being made to this Court and that they used threats to try effect this obstruction.  Having discovered Mail2 in January, 1998, Barry already knew about Mail2 and related issues, yet Barry’s supervisors at the Clinton-Gore White House (Lindsay et. al ) did not know the full extent of his knowledge and thus sought to try to keep additional Mail2 information from him so he could not testify to this Court.

385.          After Vasta faxed the Summary on September 9, 1998, either DeWire or Joseph Cunningham (the Northrop Grumman Unit Director) called Joseph Lucente and requested that a meeting be set up on an emergency basis that day with Northrop Grumman corporate counsel.  See Lucente Testimony, November 1, 2000 Tr. at 81-85.

386.          The meeting was arranged for the same day and was attended by Lucente, Cunningham, Haas, Spriggs, Golas and Ralph K. Pope, Esquire.  See Lucente Testimony, November 1, 2000 Tr. at 81. 


387.          Pope was Northrop Grumman’s Sector General Counsel.  See Lucente Testimony, November 1, 2000 Tr. at 104.

388.          Northrup Grumman has asserted the attorney client privilege to keep the contents of this meeting and the follow up activity by Northrop Grumman and its attorneys secret.  See, e.g., Lucente Testimony, November 1, 2000 Tr. at 84-85; E-mail Hearing Testimony of Earl J. Silbert (hereinafter “Silbert Testimony”), October 3, 2000 Tr. at 55-57.

389.          Nevertheless, testimony has confirmed that the Northrop Grumman employees were threatened and that these threats were discussed at this meeting.  See Lucente Testimony, November 1, 2000 Transcript at 84 (“Q. Did they tell you that these employees told them that they had been threatened by White House officials?  A. Only at the meeting.”); Haas Testimony, August 14, 2000 Tr. at 60 (“Q.  Mr. Haas, during this meeting at headquarters in [Herndon] of Northrop Grumman ... you did relay the threats that had occurred?”  A:  Yes.”).

390.          Following the meeting, Northrop Grumman hired Earl J. Silbert, Esquire to contact the Clinton-Gore White House regarding Project X.  E-mail Hearing Testimony of H. Lowell Brown, Esquire (hereinafter “Brown Testimony”), December 22, 2000 Tr. at 37.  H. Lowell Brown, Esquire was the Assistant General Counsel of Northrop Grumman and reported directly to the corporations General Counsel.  Brown Testimony, December 22, 2000 Tr. at 5 - 7.  He was Silbert’s law clerk in 1975 and in 1977 became an assistant United States Attorney serving under Silbert.  Brown Testimony, December 22, 2000 Tr. at 37 - 38.  Brown also served with Ruff when he was the United States Attorney and had communicated with him since he left office.  Brown Testimony, December 22, 2000 Tr. at 39.


391.          Silbert was United States Attorney from 1974 to 1979.  See Silbert Testimony, October 3, 2000 Tr. at 22 - 23.  Ruff also served as United States Attorney but after Silbert had left the position.  Silbert considers himself a friend of Ruff.  See Silbert Testimony, October 3, 2000 Tr. at 35 - 36.

392.          The majority of Silbert’s practice is devoted to handling criminal defense and professional ethics matters.  See Silbert Testimony, October 3, 2000 Tr. at 22 - 24, 80.  He is not a government contracts lawyer.  Id.

393.          Silbert represents James Riady and Erskine Bowles.  See Silbert Testimony, October 3, 2000 Tr. at 31; Breuer Testimony, October 19, 2000 Tr. at 67 - 68.

394.          Normally, Northrop Grumman called on Neal O’Donnel, Esquire for contractual matters.  Lucente Testimony, November 1, 2000 Tr. at 57.

395.          Based on the above facts, an evidentiary inference arises that Silbert was hired by Northrop Grumman for his criminal defense expertise, because Northrop Grumman knew they were  at risk for being involved in an ongoing criminal obstruction of justice with Clinton-Gore White House.  In addition to valuing his criminal defense expertise, Northrop Grumman also hired Silbert because of his friendly contacts with Ruff and the Clinton-Gore White House Counsel’s Office.

396.          Immediately following the September 9, 1998 meeting, Joseph Lucente drafted a letter to be sent to Dale Helms, the White House contracting officer concerning the issues raised at the meeting.  See Lucente Testimony, November 1, 2000 Tr. at 11, 13.

397.          Lucente exchanged drafts of the letter with Ralph Pope by e-mail. The letter went through approximately five drafts before being finalized.  See Lucente Testimony, November 1, 2000 Tr. 13, 15.


398.          Lucente, Pope and Burks Terry, Esquire, Deputy General Counsel for Northrop Grumman, decided not to mention the threats in the final version of the Lucente letter.  See Lucente Testimony,  November 1, 2000 Tr. at 100 - 102.  (“Q. So it was your decision not to put the threats in here?  Calls for a yes or no.  A. It was a cooperative decision.  Q. And the decision was not to put the threats in here?  A. Yes.  Q. and who specifically made the cooperative decision with you?  A. Are you aski8ng who assisted in the construction of this letter? ... THE WITNESS: Yes, it was Mr. Pope. ... THE COURT: Who Else? ... THE WITNESS: Burks Terry”).

399.          After Lucente received the subpoena in this case on October 30, 2000, he asked Ralph Pope if he had any of the drafts of the September 14, 1998 letter to Helms and Pope told him that he did not have any drafts.  See H. Ex.112; Lucente Testimony, November 1, 2000 Tr. at 21 - 22.

400.          In fact, copies of the draft of the letter did exist and were in the custody and control of Northrop Grumman and its counsel at the time Pope made this statement to Lucente.  See H. Ex. 110 at 4, Privilege Log Entries 6 - 9.

401.          Lucente acknowledged that the threatening of Northrop Grumman employees was a serious event, but was evasive in answering how Northrop Grumman intended to raise the issue with the White House.  At first, Lucente stated that Northrop Grumman intended to deal with the issue of the threats by virtue of his letter to Mr. Helms, but then, under persistent questioning, he was forced to concede that the issue was not even mentioned in the letter, since the threats were omitted from the letter.  Lucente Testimony, Id. at 97 - 103.

402.          It thus is evident that the Northrop Grumman intended to handle the issue of Clinton-Gore White House threats through other means – Earl Silbert’s contacts with Ruff and the Clinton-Gore White House Counsel’s Office.


403.          Drafts of the Lucente to Helms letter were forwarded to Silbert by Pope for Silbert’s input before the letter was mailed on September 14, 1998.  E-mail Hearing Ex. 110 at 4, Privilege Log Entries 5 - 8.

404.          Silbert also interviewed Haas on September 11, 1998 who recounted how he and his fellow Northrop Grumman employees had been threatened if the did not keep the Mail2 problem secret.  See H. Ex.110 at 4, Privilege Log Entry 11;  Silbert Testimony, October 3, 2000 Tr. at 54; Haas Testimony, August 14, 2000 Tr. at 56-57.

405.          After the original of the Lucente to Helms letter was mailed, a copy was also sent to the Clinton-Gore White House Counsel’s Office by Silbert with a note indicating that Northrop Grumman was available to answer any questions they had.  See Brown Testimony, December 22, 2000 Tr. at 23-24.

406.          Brown then directed Silbert to contact the White House Counsel’s Office to confirm that they had received the copy of the letter.  See H. Ex. 110 at 5; Privilege Log Entry 16; Brown Testimony, December 22, 2000 Tr. at 57-58.

407.          Brown recalls calling Silbert to confirm that Silbert had called the White House Counsel’s Office, but cannot recall anything about the conversation, including what he asked Silbert or what Silbert said the White House Counsel’s Office told him.  See Brown Testimony, December 22, 2000 Tr. at 57 - 58.

408.          The weight of the evidence shows that Brown’s testimony on his failure to recall what he discussed with Silbert about Silbert’s contact with the Clinton-Gore White House Counsel’s Office is false. See Brown Testimony, December 22, 2000 Tr. at 57 - 58.


409.          Silbert has testified that he does not remember the telephone call to the Clinton-Gore White House Counsel’s Office on September 28, 1998, does not remember who he spoke to in the Clinton-Gore White House Counsel’s Office, and does not recall the substance of the conversation or even why there was a conversation.  See Silbert Testimony, October 3, 2000 Tr. at 57-58.

410.          The weight of the evidence shows Silbert’s memory loss about his contacts with the Clinton-Gore White House is also feigned.  Id.

411.          Northrop Grumman and Silbert are clear that the specific purpose for which Silbert was hired was to contact the Clinton-Gore White House concerning Mail2.  See Silbert Testimony, October 3, 2000 Tr. at 37, 40 - 41, 53; Brown Testimony, December 22, 2000 at 37-38, 72-74, Pope Testimony, December 22, 2000 Tr. at 141.

412.          Yet Silbert, Brown, Pope and Breuer have all suffered a complete loss of memory as to anything Silbert communicated to the White House or anything the White House may have communicated to Silbert.  See Silbert Testimony, October 3, 2000 Tr. at 37, 39, 58, 60, 79, 80, 83, 86 and 93 and  December 20, 2000 Tr. at 27-30, 34-35, 44-45, 48-49, 71-72, 75; Brown Testimony, December 22, 2000 Tr. at 24 - 25, 33, 34, 49 - 51, 53, 54, 57 - 62; Pope Testimony, December 22, 2000 Tr. at 162 - 164, 166 - 171; Breuer Testimony, October 19, 2000 Tr. at 68 - 70.


413.          On December 9, 1998, Vasta, attended the weekly Contracting Officer’s Technical Representative (COTR) meeting  at which Dale Helms, DeVere Patton and Tony Barry of the EOP were present. See 9-63 at 1; Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 37; Barry Testimony, August 3, 2000 Tr. at 168.  At this meeting, Vasta provided the attendees with a copy of the December 8, 1998 Insight Article “Looking for Information in All the Wrong Place” which Vasta had received from Haas.  See H. Ex. 9-63 at 1; Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 37.  A copy was also sent to Helms, Patton and Barry by Vasta with his  December 11, 1998 Memorandum of minutes of the weekly COTR meeting.  Northrup-Grumman “alerted the Government about the article as soon as Northrup-Grumman discovered it.”  E-mail Hearing Ex. 9-63 at 1.

414.          A copy of the Insight article was also sent by Pope to Silbert.  E-mail Hearing Testimony of Ralph K. Pope, Esquire (hereinafter “Pope Testimony”), December 22, 2000 Tr. at 195.

415.          Silbert called the White House Counsel’s Office about this article.  See E-mail Hearing Exhibit 110 at 5, Privilege Log Entry 17; Silbert Testimony, December 20, 2000 Tr. at 32-34.

416.            Silbert’s call was returned by Special Counsel to the President Lanny Breuer, Esquire.  See H. Ex. 110 at 5, Privilege Log Entry 15; H. Ex.109. 

417.          The phone message slip from December 30, 1998 noting a call from Breuer to Silbert indicates that Silbert spoke with Breuer, but Silbert does not recall the conversation or who he spoke with.  See Silbert Testimony, December 20, 2000 Tr. at 32-33.  Breuer does not recall ever speaking to Silbert about Mail 2.   See Breuer Testimony, October 19, 2000 Tr. at 59-69.

418.          On a copy of the fax cover sheet that accompanied the Insight article from Brown, Silbert wrote the following note concerning a phone conversation with the White House Counsel’s Office: “On 12-30-98, EJS; W-H Counsel; checked again - all taken care of.  No Committee yet raising issues.”  See H. Ex. 110 at 5, Privilege Log Entry 13; Silbert Testimony, December 20, 2000 at 32-33.


419.          While Silbert was careful to note that the “W,” “H” and “C” were capitalized in “W-H Counsel” from his December 30, 1998 notes, he failed to note this regarding the “C” in “Committees” until pressed to tell the truth by Plaintiffs’ counsel.  Silbert Testimony, December 20, 2000 Tr. at 33, 68-69.

420.          Based on the totality of the evidence, the reference on Silbert’s fax sheet, “On 12-30-98, EJS; W-H Counsel; checked again - all taken care of.  No Committee yet raising issues,” is to the fact that all is “taken care of” because the obstruction was then continuing and no Congressional Committees were “raising issues” with respect the hidden e-mail.

421.          The contract between Northrop Grumman and the Clinton-Gore White House was worth over $50,000,000 in revenue to Northrop Grumman.  See Lucente Testimony, November 1, 2000 Tr. at 38.

422.          The contract was an “Award Fee” contract, meaning that the amount of some of the payments under the contract would depend on the Clinton-Gore White House’s evaluation of Northrop Grumman’s performance.  See Lucente Testimony, November 1, 2000 Tr. at 39-40.  The contract is structured so that Northrop Grumman’s costs are covered under the base contract but it only earns a profit based on this discretionary award fee determination portion of the compensation.  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 128.

423.          Prior to December 1998, Northrop Grumman’s performance had been evaluated as very good to outstanding by the Clinton-Gore White House.  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 41-42


424.          In January, 1999, immediately following publication of the Insight article, Vasta was told by persons (ANYONE SPECIFICALLY?) in the Clinton-Gore White House that Mark Lindsay wanted to talk to Northrop Grumman management about problems under the contract.  See Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 43 - 45.

425.          On April 2, 1999, Vasta finally received the Clinton-Gore White House’s Award Fee Determination covering the period from February 1, 1998 to September 30, 1998.  See H. Ex. 131.

426.          The evaluation of Northrop Grumman’s performance was lower than prior evaluations.  Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 118 - 121. 

427.          This evaluation was in conflict with prior evaluations of Northrop Grumman’s performance covering the same period provided by Jim Wright and Patton DeVere (both COTRs for the Clinton-Gore White House at the time the evaluations were made) which rated Northrop Grumman’s performance of very good to outstanding.  Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 41-42, 129.

428.          Lindsay and the Clinton-Gore White House retaliated against Northrop Grumman through the award fee determination over the publicity surrounding the e-mail problems.  Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 40 - 45, 120, 124 - 125, 128 - 131.  (“Q. So it was your decision not to put the threats in here?  Calls for a yes or no.  A. It was a cooperative decision.  Q. And the decision was not to put the threats in here?  A. Yes.  Q. and who specifically made the cooperative decision with you?  A. Are you aski8ng who assisted in the construction of this letter? ... THE WITNESS: Yes, it was Mr. Pope. ... THE COURT: Who Else? ... THE WITNESS: Burks Terry”).


429.           People (WHO?) within the Clinton-Gore White House let Vasta know that this was a means of “bringing pressure to bear on Northrop Grumman to conform to the EOP’s wishes” and that “... Northrop Grumman had to get in line and do the things that they were asking us to do.”  Vasta Testimony, November 3, 2000 (afternoon session) Tr. at 41, 130 - 131.

430.          When Vasta left the Clinton-Gore White House, he requested an evaluation of his performance by the President of his division, Greg Donnelly.  When he asked Mr. Donnelly about things he may have done wrong, Mr. Donnelly did not cite any specific failures, but instead stated that Vasta was in the wrong place at the wrong time, meaning that he was removed from the EOP for his refusal to tow the Clinton-Gore White House’s line on Mail2.  See Vasta Testimony, November 3, 2000 Tr. at 134 - 136.

431.          The evidence detailed above shows that Northrop Grumman officials and lawyers were notified of the threats and resulting obstructing of justice in this case, but took no remedial action.


432.          The evidence also shows that Silbert was aware of the threats to Northrop Grumman employees and discussed these threats with the Clinton-Gore White House.  See Haas Testimony, August 14, 2000 Tr. at 60 (Haas told Mr. Pope and others about the threats at the September 9, 1998 meeting); Lucente Testimony November 1, 2000 Tr. at 100 - 02 (counsel, including Pope and Burks, participated in decision not to discuss the threats in the Lucente letter); Brown Testimony December 22, 2000 Tr. at 21 - 22 (Brown participated in drafting the Lucente letter); E-mail Hearing Ex. 110 at 4, Privilege Log Entries 6 - 9 (Silbert received and edited drafts of the Lucente letter);  Brown Testimony, December 22, 2000 Tr. at 5,  69 - 70 (the reason Brown directed Silbert to contact the White House Counsel’s office was to discuss the Lucente letter with that office); E-mail Hearing Ex. 110 at 4, Privilege Log Entry 16 (Silbert contacted the White House Counsel’s Office as Brown had directed on September 28, 1998); Brown Testimony, December 22, 2000 Tr. at 57 - 58 (Brown called Silbert to confirm that Silbert had called the White House Counsel’s Office).

433.          The evidence detailed above shows that Earl Silbert contacted Lanny Breuer and/or Charles Ruff in the White House Counsel’s Office about the threats to Northrop Grumman contractors.  The Clinton-Gore White House and their representatives of the White House Counsel Office thereby testified falsely when they claim they did not hear of the threats until the threats became public.  See Ruff Testimony, August 28, 2000 Tr. at 72 - 73; Breuer Testimony, October 19, 2000 Tr. at 55; Mills Testimony, September 1, 2000 Tr. at 97; Peterson Testimony, August 28, 2000 Tr. at 260.

434.          The evidence detailed above shows that Northrop Grumman remained silent (misprision) about this obstruction of justice, threats, and witness tampering even as its employees and subcontractors were being threatened and removed from the Clinton-Gore White House.   The weight of the evidence shows that this silence was for two reasons: 1) Northrop Grumman was concerned about the legal implications of its role in the Mail2 issue; 2) Northrop Grumman did not want to lose its $50 million plus contract with the Clinton-Gore White House.

435.          Further evidence of Northrop Grumman’s conspiracy with its customer, the Clinton-Gore EOP, and obstruction of this Court’s proceedings can be found in the manner in which document productions, especially production of the document “Summary of Project X Discussions,” has been handled.           


436.          On November 1, 2000, during Mr. Lucente’s appearance before this court, he disclosed that he had documents pertaining to the Mail2 problem in his brief case but that he had left the brief case at his attorneys office.  At the Plaintiffs’ request, the Court recessed in order to allow Mr. Lucente to retrieve and produce these documents.  Among the documents produced from his brief case was a copy of the document titled “Summary of Project X Discussions” which Vasta had authored at the request of his management to summarize what he had learned from Haas, Spriggs, Golas and Hawkins during several meetings in August and September, 1998.  See E-mail Hearing Exhibit 113; Lucente Testimony, November 1, 2000 Tr. at 22 - 33; Vasta Testimony, November 3, 2000 (second) Tr. at 23.

437.          During Mr. Vasta’s testimony on November 3, 2000, he produced documents bearing Bates numbers JV00002 through JV000333.  These documents were only produced to Plaintiffs the morning of Vasta’s testimony.  Vasta Testimony, November 3, 2000 (first) at 4.

438.          Within these documents was another copy of the “Summary of Project X Discussions,” with a fax cover sheet from Lucente to Laneta McCorkle, Jim DeWire’s administrative assistant, dated September 9, 1998 and marked “Urgent.”  This document was buried at Bates numbers JV 78 - 79.  See Vasta Testimony, November 3, 2000 (first) at 12 - 13; E-mail Hearing Exhibit 120.

439.          Vasta has now disclosed that this document, as well as the remaining documents he produced at his appearance on November 3, 2000, had previously been provided to Earl Silbert, Esquire and Jack Bray, Esquire during a one to two hour meeting Vasta had with them in mid-June of this year to discuss the Mail2 problem.    See Vasta Testimony, November 3, 2000 (first) at 19 - 24.


440.          These documents, and especially the “Summary of Project X Discussions,” are obviously relevant to this case and responsive to numerous subpoenas that have been issued to Northrop Grumman, its managers and attorneys.  See E-mail Hearing Exhibits 90, 95, 112, 119, 141.  Nevertheless, this document had not been produced to Plaintiffs prior to Lucente’s testimony.  See Lucente Testimony, November 1, 2000 Tr. at 33 - 34; Vasta Testimony, November 3, 2000 (first) at 15 - 18.

441.          Given the obvious relevant and damaging content of the “Summary of Project X” combined with the fact that it has been in the possession of numerous company managers and attorneys, as well as the fact that as recently as June, 2000 it was reviewed by a key Northrop Grumman manager with his personal attorney and Northrop Grumman’s attorney in a lengthy meeting having to do with this case, the failure to produce this document simply cannot be explained by innocent oversight or inadvertence.  Accordingly, the Court infers and will find as a fact that this document was deliberately withheld by Northrop Grumman and its counselbecause Northrop Grumman recognized that the document, as explained by Vasta in his testimony, confirms that its upper management and attorneys were notified of the threats to their employees prior to retaining Earl Silbert to contact the White House Counsel’s Office.  See E-mail Hearing Exhibit 120; Vasta Testimony, November 3, 2000 (first) Tr. at 29-30;  Vasta Testimony, November 3, 2000 (second) Tr. at 2-6, 11, 22 - 25.

 

R.        Despite Warnings from Plaintiffs and Others about Mail2, Clinton-Gore White House Continued to Present False Testimony and Withhold Information from the Court, Congress, and the Office of Independent Counsel.

 

442.          In preparation for Mr. Lindsay’s testimony before the House Subcommittee on the Treasury, Postal Service, and General Government Appropriations concerning the OA’s appropriations request in March of 1999, input as to budgetary requirements were sought from OA staff.  See Heissner Testimony, August 16, 2000 Tr. at 29-32.


443.          Nevertheless, the OA staff identified Mail2 reconstruction as a budgetary requirement and included it in drafts of the briefing book prepared for Lindsay’s March, 1999 testimony.    See Lindsay Testimony, August 23, 2000 Tr. at 156-157; H. Ex. 9-134 at E4395-4396.

444.          On February 5, 1999, citing the activities of “litigants against the government , ” Karl Heissner (an IS&T Branch Chief), counseled against “call[ing] undue attention to the [Mail2] issue by bringing the issue to the attention of Congress,” and in favor of “Let[ting] sleeping dogs lie[.]” See H. Ex. 35A

445.          All references to Mail2 and the funding required to solve Mail2 was deleted from the briefing book just prior to Lindsay’s appearance.    See Lindsay Testimony, August 23, 2000 Tr. at 157-158; H. Ex. 9-134 at E4395-4396.

446.          Lindsay did not mention the Mail2 problem in his prepared statement or in his testimony before the Appropriations Subcommittee, nor was Mail2 mentioned or funds for Mail2 reconstruction included in the OA’s 1999 budget request.  See Lindsay Testimony, August 23, 2000 Tr. at 156-158; H. Ex. 36A.

447.          Although Lindsay has stated that Y2K projects were consuming available resources in late 1998 and early 1999, as manager of the project he took no action to request additional funds to address the Mail2 problem.  See Lindsay Testimony, August 23, 2000 Tr. at 159-162.

448.          As it was in his briefing materials for his testimony, Lindsay was obviously aware of the Mail2 problem and the requirements to correct Mail2 when he testified to Congress in March 1999.  See H. Ex. 9-134.


449.          Funds were available for Mail2 reconstruction.  The OA Armstrong account had $981,000 available for use in 1998 and another $500,000 may have been available from NARA.  See H. Ex. 9-99.

450.          Lindsay did nothing at all to address the Mail2 problem and missing e-mails.

451.          Lindsay did not bring the Mail2 and missing e-mail problem to the attention of Congress, the Independent Counsel, or this Court prior to February of 2000, nor did he do so voluntarily any time thereafter.

452.          The evidence shows Lindsay’s repeated promises to Gallant to look into the use of the funds were lies intended to delay and prevent public discovery of the e-mail.

 

S.         Despite Being on Notice, Barry, Clinton-Gore White House, and Justice Department Continue to Obstruct Justice and Commit Perjury By Filing An Additional False Declaration With This Court.

 

453.          In April, 1999, the Clinton-Gore White House uncovered another e-mail problem it withheld from this Court.

454.          On April 9, 1999, the Clinton-Gore White House discovered that e-mail for users whose last names begin with the letter “D” had not been records managed (archived on ARMS) since November, 1998.  See H. Ex. 9-125 at 2. 

455.          The e-mail for these users continued to be non-records managed until the programming error was not corrected until June,1999.  Heissner Testimony, August 16, 2000 Tr. at 21 - 22.  The e-mails of these users for the period from November 1998 to June 1999 must be reconstructed before they can be archived or are available to be searched.  Heissner Testimony, Id.


456.          On June 14, 1999, Plaintiffs were forced to file a Motion to Compel Production of Documents Regarding Second Request to EOP.  See H. Ex. 58.  At Defendant EOP’s invitation, Plaintiffs at that time submitted a list of e-mail accounts and search terms to be used for a search of Clinton-Gore White House e-mail.  See H. Ex. 58 at 26-27, Request 28.

457.          In response to this Motion to Compel, the Clinton-Gore White House again submitted a false declaration concerning e-mail in July 9, 1999.  That declaration, again by Daniel Barry, falsely stated that:

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

 

See H. Ex. 42 (Declaration of Daniel A. Barry, July 9, 1999) at ¶ 4.

458.          Barry was working closely with attorneys in the Clinton-Gore White House Counsel’s office and the Department of Justice in drafting and revising this Declaration.  See H. Ex. 66 (Fayngold), 68, 72 (Baron), 39-1051814 -20, 39-1051832 -41 (Peterson) and 72, 39 - 1051823 -27, 39-1051832 -41, 39-1051849 -54, 39-1051855 -59 (Giles); Baron Testimony, August 31, 2000 Tr. at 89 - 108.

459.          Peterson had allegedly performed the “comparison” of the Haas Mail2 documents in June 1998.  See Peterson Testimony, August 28, 2000 Tr. at 193.

460.          Peterson also had been in court when the Insight article was brought forward and then allegedly assisted in the DOJ investigation of the issues it raised.  See Peterson Testimony, August 28, 2000 Tr. at 177 - 178.


461.          Peterson recalls working with Barry’s “superior or people within the Office of Administration,” including Dottie Chleo, on the drafting of this Declaration.  See Peterson Testimony, August 28, 2000 Tr. at 220 - 221.

462.          While Peterson acknowledges that there was joint responsibility between her and the attorneys in the Clinton-Gore Justice Department for the accuracy of the Declaration, she made no “effort ... to determine paragraph by paragraph that what Barry was saying was accurate in Exhibit 42 [Barry’s July 9, 1999 Declaration].”  See Peterson Testimony, August 28, 2000 Tr. at 222.

463.          Prior to reviewing the July 1999 Declaration, Baron had met with Lindsay about the fact that e-mail was coming “into the [White House] complex, and was not being captured” due to a  “computer glitch.”  See Baron Testimony, August 31, 2000 Tr. at 45 - 47, 50 - 51.

464.          Baron had also spoken to Clinton-Gore OA officials Mike Lyle, Esq. and Kate Anderson, Esq. in the Office of Administration about the Letter D problem in April 1999, and understood that this problem could be causing records to be not properly archived or illegally destroyed or modified.  See Baron Testimony, August 31, 2000 Tr. at 60 - 62 (“I have a clear recollection in that conversation of telling them that independent of the Armstrong case, you have the Federal Records Act responsibilities.  Because they said the letter D, it may be accounts that are both Federal Records Act accounts and Presidential Records Act accounts, depending on whether the e-mail was in one place at the White House or another.  And I did advise them that under the Federal Records Act there are provisions, 44 U.S.C. 2905, 3106, that talk to the issue of destruction or modification of records, and that they needed to be aware of those.”).


465.          Barry signed the July 9, 1999 Declaration under oath and understood that if he signed the declaration and it was false that that would be a crime.  See Barry Testimony, August 17, 2000 Tr. at 132.

466.           The Clinton-Gore White House and Justice Department lawyers have also allowed Barry’s false testimony of June 11, 1998 and Declaration of March 4, 1998 to remain on the record before the Court. See H. Ex. 59 (Opposition by Defendant EOP to Plaintiffs’ Motion to Compel Documents Regarding Second Request to EOP, filed July 9, 1999) at 28-31 (Barry July 9, 1999 Declaration is attached as Exhibit D), and H. Ex. 60 (Plaintiffs’ Reply to Opposition to Plaintiffs’ Motion to Compel Documents Regarding Second Request to the EOP, filed July 29, 1999) at 18-19.

467.          Despite their knowledge that e-mail since July, 1994 and other EOP e-mail were not and would not be searched in response to document requests from Plaintiffs or any other legal entity, neither Barry, the Clinton-Gore White House, Clinton-Gore White House officials, and Justice Department lawyers alerted this Court, Congress, or independent counsel to the e-mail problem and the resulting effect on document productions.  See Lindsay Testimony, August 23, 2000 Tr. at 34, 44-45, 118.

468.          Barry, the Clinton-Gore White House, Clinton-Gore White House officials, and Department of Justice lawyers failed to inform Congress or any other agency of the government, the Office of Independent Counsel, this Court, or counsel for the Plaintiffs of the existence of the Mail2 problem or any other problem with the archiving of e-mail.  See August 23, 2000 Tr. at 34, 44-45, 118.


469.          Barry, the Clinton-Gore White House, Clinton-Gore White House officials, and Department of Justice lawyers failed to inform Congress or any other agency of the government or this Court of the need for funds or resources to analyze the Mail2 problem and correct it.  See August 23, 2000 Tr. at 34, 44-45, 118.

 

T.         Clinton-Gore White House Lied To Court About Hillary Clinton’s E-mail.

470.          As stated above, on October 27, 1998, Plaintiffs filed their Second Set of Requests for Production of Documents to the Executive Office of the President.

471.          Request 21 of Plaintiffs’ Second Set of Requests for Production of Documents to the Executive Office of the President sought the following:

All laptop and desktop computers used by or assigned to Hillary Rodham Clinton, which contain or contained information or recordations relating to Travelgate, Filegate, the White House Office Database (“WHODB”) computer system, or the obtaining or use of FBI files or government records, or the information contained therein.

 

472.          Request 22 of Plaintiffs Second Set of Requests for Production of Documents to the Executive Office of the President sought the following:

All floppy disks, zip drives, magnetic tapes, and similar removable data storage devices used by Hillary Rodham Clinton, which contain or contained information or recordations relating to Travelgate, Filegate, the WHODB computer system, or the obtaining or use of FBI files or government records, or the information contained therein.

 

473.          On January 14, 1999, the Clinton-Gore EOP submitted its responses to Plaintiffs’ Second Set of Requests for Production of Documents to Plaintiffs.  In response to Request 21, the Clinton-Gore EOP represented, in part, that “[n]o EOP laptop or desktop computers are used by or assigned to Hillary Rodham Clinton.”  See EOP’s Response to Plaintiffs’ Second Document Request at 19.


474.          In response to Request 22 of Plaintiffs’ Second Set of Requests for Production of Documents, the Clinton-Gore EOP represented, in part, that:

No EOP laptop or desktop computers are used by or assigned to Hillary Rodham Clinton, and accordingly no floppy disks, zip drives, magnetic tapes and similar removable data storage devices responsive to this request exist.

 

See EOP’s Response to Plaintiffs’ Second Document Request at 19.

475.          On January April 22, 1999, the Clinton-Gore EOP submitted supplemental responses to Plaintiffs’ Second Set of Requests for Production of Documents to Plaintiffs.  In its supplemental responses to Requests 21 & 22 of Plaintiffs’ Second Set of Requests for Production of Documents, the Clinton-Gore EOP represented that:

According to EOP’s records, no laptop or desktop computers have ever been assigned to Mrs. Clinton. EOP has inquired and is unaware of Mrs. Clinton using White House computers either for any purpose relating to the subject matters of these requests, or, for that matter, to carry out any of her official duties as First Lady. Accordingly, EOP has no documents or things responsive to Request Nos. 21-22.

 

See EOP’s Supp. Response at 11 (emphasis added).

476.          Then, on July 9, 1999, the story changed again and the Clinton-Gore White House acknowledged for the first time in its Opposition, the existence of one e-mail account established under the First Lady’s name:

EOP recently learned that an e-mail account under the First Lady’s name was established, for the first time, on June 4, 1999 for the sole purpose of sending a single e-mail and receiving responses. The account was used to send an e-mail on June 7, 1999 to EOP employees concerning “DC Reads Voluntary Opportunity” which provided information on volunteering for a reading program with Washington, DC students. This account was deactivated on June 9, 1999. Although the e-mail was sent under the First Lady’s name, she did not participate in drafting the message, in putting the message into the computer or sending it.

 

See EOP Opposition to Plaintiff’s Second Motion to Compel at 11, fn. 16.


477.          On August 14, 2000, Mr. Haas revealed that,  contrary to the representations made by the Clinton-Gore White House to this Court and to Plaintiffs, another e-mail account in Hillary Clinton’s name does in fact exist and that an employee of Mrs. Clinton, Alice Pushkar, has access to it.  See Haas Testimony, August 14, 2000, Tr. at 93-94, 98-99.

478.          Mr. Haas also testified that, contrary to the representations made by Defendant Clinton-Gore EOP to this Court and to Plaintiffs, alias or pseudonym e-mail accounts in the White House exist for Defendant Hillary Rodham Clinton, President Clinton as well as Vice-President Gore and Tipper Gore:

[By Mr. Klayman:]       Are you aware that some e-mail accounts were kept under aliases in the White House?  You did know that, didn't you?

 

[By Mr. Haas:]             No.

 

[By Mr. Klayman:]       You're aware -- if I don't use the word alias, that some e-mail accounts were kept under nicknames?

 

[By Mr. Haas:]             Now, wait a minute.  If you're talking about the principals, for security reasons I won't go into any part of this until we get some waiver.  But there are ways in which we use alternative naming conventions to get mail to the four principals that are not public knowledge and won't be made public knowledge by me.

 

[By Mr. Klayman:]       Who are --

 

[By Mr. Haas:]             We're talking about Bill, Hillary, and Al and Mary Gore.

 

[By Mr. Klayman:]       Mary Tipper Gore?

 

[By Mr. Haas:]             Yes.

 

[By Mr. Klayman:]       So they have accounts which are names that you can't identify who they are?

 

See Haas Testimony, August 14, 2000 Tr. at 109.


479.          Mr. Haas further testified that Mrs. Clinton’s alias account was created shortly after President Clinton entered office.  Id.

480.          This false information about Defendant Hillary Clinton’s e-mail is further evidence of the nefarious intent of the Clinton-Gore White House’s representations on the Mail2 and related problems.

 

U.        Whistleblowers Expose Clinton-Gore White House’s Obstruction of Justice, False Testimony.

 

481.          On February 19, 2000,  Plaintiffs filed with the Court their “Emergency Motion to Supplement Plaintiffs’ Motion to Compel and Request for Evidentiary Hearing” (hereinafter “Emergency Motion”).

482.          In support of that Motion, the Plaintiffs submitted a sworn Declaration executed by Sheryl Hall (“Hall”), a career civil servant with the rank of GS-15, who, from October 1992 until September of 1999, had been employed with the EOP as a computer specialist.  See H. Ex. 1 at 1.

483.          In her February 19, 2000 Declaration, Hall verified  that in the course of her duties with the EOP, she had learned of the facts and circumstances surrounding what is now known as the Mail2 problem (Mail2).  See H. Ex. 3 at 2.

484.          Her Declaration set forth a broad description of the Mail2 problem which has now been substantiated by the evidence adduced in this hearing.  See H. Ex. 3 at 2, 3.


485.          On February 19, 2000, the same day Plaintiffs’ filed their Emergency Motion (and four days after a Washington Times article detailing Hall’s core charges appeared), a list of sixty-two persons who had worked for the Clinton Administration and who are currently deceased was left on Haas’s chair on February 19.  See H. Ex. 77, Haas Testimony, August 14, 2000 Tr. at 48-49. 

486.          This list was an implicit threat against Haas’s life and intended to influence his testimony in this case in favor of the Clinton-Gore White House.

487.          On February 25, 2000, the Plaintiffs filed with the Court their “Second Supplement to Emergency Motion to Compel and Request for Evidentiary Hearing.”

488.          Filed with this pleading was the sworn declaration of Betty Lambuth (“Lambuth”), who was an employee for a subcontractor to Northrop Grumman working at the Clinton-Gore White House from October 1997 through July 1998.  See H. Ex. 10 at 1, 4; Lambuth Testimony, July 13, 2000 Tr. at 84. 

489.          Lambuth’s Declaration testimony, which corroborated Hall’s,  included a detailed and accurate first hand description of the facts and circumstances surrounding Mail2.  See H. Ex. 10.

490.          Lambuth attested that she and her staff were ordered not to take any written notes or divulge anything relating to Mail2 to any individual, including their Northrop Grumman superiors, by Office of Administration General Counsel Mark Lindsay (“Lindsay”) and Laura Crabtree (“Crabtree”), a managerial official for the Information Systems and Technology Division of the Office of Administration (“IS&T Division”).  See H. Ex. 10 at 2.

491.          Lambuth’s Declaration further detailed the threats of loss of employment and incarceration made to her and those on her staff who knew of Mail2 by Lindsay and Crabtree should they disobey the order of silence imposed upon them.  See H. Ex. 10 at 2-3.

492.          From January of 1998 to October of 1998, Kathy Gallant (“Gallant”) was the Associate Director for the IS&T Division.  See Gallant Testimony, August 1, 2000 Tr. at 109-110.


493.          Her job duties were managerial , and included responsibility for computer operations, mainframes, and for overseeing the performance of Northrop Grumman’s  contract with the EOP.  See Gallant Testimony, August 1, 2000 Tr. at 106.

494.          In February, 2000, Gallant was contacted by phone at her place of work by James Gilligan, a Department of Justice attorney serving as a counsel in this matter.  See Gallant Testimony, August 1, 2000 Tr. at 208.

495.          Gilligan and Gallant discussed the Mail2 problem and the Mail2 reconstruction project for  approximately 1-1/2 hours.  Id. at 208.

496.          During their conversation, Gallant told Gilligan that:

. . .  I was aware - - of the problem; that I was aware that people had been threatened; that I took action to try to get the problem resolved; that I had a - - we had a strategy for how we could use the money we were assured by Mark Lindsay that getting that money to solve the problem wouldn’t be a problem, and that, you know, we had folks working on the problem as best we could.  People told me they had been threatened by Laura [Crabtree].  I believe I told him that I thought she was capable of threatening those folks.  I had seen that behavior before from her.

 

See Gallant Testimony, August 1, 2000 Tr. at 208-209.

497.          On May 10, 2000, Gallant signed a declaration confirming the substance of her conversation with Gilligan.

498.          This Declaration was filed with this Court on May 11, 2000 in conjunction with Plaintiffs’ Motion to Amend Supplements Dated May 2 and May 5, 2000 Regarding ARMS E-Mail and Non-Records Managed E-Mail and For Leave to File Fifth Supplement to Emergency Motion to Supplement Plaintiffs’ Motion to Compel and Request for Evidentiary Hearing.


499.          On March 6, 2000, the Clinton-Gore White House filed a pleading in this case entitled “Executive Office of the President’s Memorandum in Opposition to Plaintiffs’ Requests to Restrict Disclosure of the First and Second Supplements to Plaintiffs’ Motion for Evidentiary Hearing, and in Support of Cross-Motion for Expedited Consideration.”

500.           In that pleading, Clinton-Gore Justice Department counsel made the following statements at pages 1, 6, 8, and 14-16 respectively:

Plaintiffs have filed a series of interconnected motions based on offensive allegations that Executive Office of the President (“EOP”) has suppressed evidence, and threatened witnesses, concerning the existence of electronic mail records in the White House.

                                                                          * * * 

As a threshold matter defendant observes that plaintiffs’ latest rhetorical outburst concerning e-mail can only be described as yet another “distraction from the issues in this lawsuit.”

                                                                          * * *

But even more implausible is plaintiffs’ suggestion that EOP would (or could) retaliate against individuals who testify.

                                                                          * * *

The history of this litigation teaches . . . that plaintiffs’ accusations of witness intimidation and retaliation cannot be taken at face value, and the Court should be loath to award relief of any kind predicated on the presumed accuracy of these charges.

                                                                          * * *

The fact is that EOP has no inclination or ability to retaliate against witnesses or have them fired.

501.          Also on March 6, 2000, the Clinton-Gore White House filed its“Executive Office of the President’s Motion for an Extension of Time to Respond to Plaintiffs’ Motions to Supplement Plaintiffs’ Motion to Compel Regarding the Second Document Production.”

502.          In that pleading, Clinton-Gore Justice Department counsel made the following statement at page 5:

. . . [P]laintiffs’ allegations with respect to e-mail searches are simply another distraction from the central issues in this case and another example of plaintiffs chasing the morning headlines . . .


503.          On March 9, 2000, the Clinton-Gore White House, through Justice Department counsel, filed its “Executive Office of the President’s Opposition to Plaintiffs’ Motion for ‘Emergency’ Ex Parte Conference and to Motion for Leave to File Emergency Motion Under Seal.”

504.          Therefore, as early as February 2000, the Clinton-Gore Justice Department had independent confirmation that these threats had, in fact, been made, yet it vehemently denied this fact in subsequent submissions to the Court.  See Executive Office of the President’s Memorandum in Opposition to Plaintiffs’ Requests to Restrict Disclosure of the First and Second Supplements to Plaintiffs’ Motion for Evidentiary Hearing, and in Support of Cross-Motion for Expedited Consideration, filed on or about March 6, 2000, at 1, 6, 8, 14-16.  See also Executive Office of the President’s Motion for an Extension of Time to Respond to Plaintiffs’ Motions to Supplement Plaintiffs’ Motion to Compel Regarding the Second Document Production, filed on March 6, 2000, at 5.  See also Executive Office of the President’s Opposition to Plaintiffs’ Motion for “Emergency” Ex Parte Conference and to Motion for Leave to File Emergency Motion under Seal, March 9, 2000, at 8 n.5.

505.          These false pleadings were signed by the following attorneys: John Anderson, Ann Weisman, James Gilligan, Elizabeth Shapiro, Allison Giles, Julia Fayngold-Covey.

 

V.        Obstruction of Justice Continues

506.          This obstruction of justice continued even in the midst of court hearings and litigation on the subject in 2000.


507.          Following publication of a Washington Times article exposing key aspects of the Mail2 scandal on February 15, 2000, Joe Lockhart, President Clinton’s then Press Secretary, talked to the White House Counsel’s Office about Mail2 and then he, John Podesta, President Clinton’s Chief of Staff, and Beth Nolan, White House Counsel briefed President Clinton prior to a press appearance.  See H. Ex. 77 at 1, Podesta Testimony, October 10, 2000 Tr. at 25 - 31; E-mail Hearing Testimony of Beth Nolan (hereinafter “Beth Nolan”), November 2, 2000 Tr. at 94-95.

508.          During this briefing, Podesta and Lockhart discussed Mail2 with Clinton so he would tell the press that the White House Counsel’s Office had tried to comply with subpoena requests and was investigating the matter.  They did not tell Clinton to tell the press that the White House Counsel’s Office had fully complied with all subpoena requests.  See Podesta Testimony, October 10, 2000 Tr. at 28-34.

509.          Nevertheless, when Clinton was asked about the matter minutes after the briefing, he stated “I believe that we have complied with every single request” and that “I think we are in full compliance.  I believe we are.”   See Podesta Testimony, October 10, 2000 Tr. at 28-34; H. Ex 99.

510.          This false public statement has never been corrected by the President.  See Podesta Testimony, October 10, 2000 Tr. at 90-92.

511.          In fact, months later, Clinton spokesman Jake Siewert expanded on that falsehood. In a Washington Post article titled “E-Mail Searches Skip Private Clinton, Gore Accounts” and published on August 18, 2000, White House Spokesman Jake Siewert stated, in response to questions about Mail2, “[w]e have searched the entire e-mail system to be as responsive as possible.”  Mark Lindsay also tried to promote this lie to this Court.  See H. Ex. 77 at 5; Lindsay Testimony, August 23, 2000 Tr. at 81-82, 85.


512.          Despite Mark Lindsay’s attempt to falsely characterize Siewert’s statement as truthful, this statement is false because there are still thousands of back up tapes that had yet not been searched.  See Lindsay Testimony, August 23, 2000 Tr. at 85 - 89.

513.          The Clinton-Gore White House continued to lie to the Court about e-mail problems.  Based on representations made to this Court in the Declaration of Leanna Terrell, which stated that responsive e-mail was unlikely to be anywhere but the White House Office “bucket,” Plaintiffs narrowed the scope of their requested ARMS search.  See Executive Office of the President’s Response to Plaintiffs’ Supplement to Plaintiffs Motion to Compel Production of Documents Regarding Second Request to EOP (re: ARMS e-mail), May 12, 2000, Ex. A (Terrel Declaration) at ¶ 5; Plaintiffs Reply to the EOP’s Response to Plaintiffs Supplement at 5.

514.          Also relying in part on this Declaration, the Court further narrowed the scope of the ARMS search to the White House Office “bucket.” See June 5, 2000 Memorandum Opinion at 23-25.

515.          Nowhere in Terrell’s Declaration (nor anywhere else in the record prior to the Court hearings on these issues), were the Court or Plaintiffs notified of the ARMS “bucket” problem.  See, e.g.,  H. Ex. 64 at E-2152-2155, E-2162, E-2200, E-2402-03, and E-2410-2411; see also  H. Ex. 9-21; August 1, 2000 Tr. at 154-57.

516.           Consequently, as large numbers of responsive e-mail could be in other “buckets,” the search of the ARMS system ordered by the Court on June 5, 2000 was inherently flawed.

517.          The only requests for funding from Congress by the EOP for e-mail reconstruction came after the public statements by Ms. Hall and Ms. Lambuth disclosing Project X and the Mail2 problem.


518.          The first request for funding for e-mail reconstruction was a March 20, 2000 letter from Lindsay to the Treasury, Postal Service and General Government Appropriations Subcommittee of the House Committee on Appropriations (hereinafter “Appropriations Subcommittee”) requesting the release of Armstrong funds and containing  his “legal conclusion that it would be inappropriate to do so.”  See Lindsay Testimony, August 23, 2000 Tr. at 162.

519.          Mr. Lyle, the current Director of the OA, testified before the Appropriations Subcommittee on March 23, 2000.

520.          In his testimony, Mr. Lyle did not request any additional funds for Mail2 reconstruction and admitted that funds had not been requested prior to Mr. Lindsay’s March 20, 2000 letter.  See, Lyle Congressional Appropriations Testimony at 43 .

521.          Mr. Lyle also admitted that the Armstrong funds were available and were intended for ARMS related projects such as Mail2, but that the funds had not been used to correct the Mail2 problem.  See Lyle Congressional Appropriations Testimony at 41 - 43.

522.          Stuart Hanley, an employee of OnTrack was contacted by the Clinton-Gore White House in February, 2000  regarding a data recovery project involving the duplication of numerous back-up tapes from White House servers. See E-mail Hearing Testimony of Stuart Hanley (hereinafter “Hanley Testimony”), July 14, 2000 Tr. at 102; E-mail Hearing Testimony of Jennifer Zeller (hereinafter “Zeller Testimony”), July 27, 2000 Tr. at 46.

523.          OnTrack is widely regarded as the leading company in the world in computer data recovery. See Hanley Testimony, July 14, 2000 Tr. at 102


524.          Representatives of OnTrack eventually met with several employees of Defendant EOP on February 29, 2000.  Id. at 114.  Lois Loser and Terry Misich attended this meeting.  Id. at 106.

525.          OnTrack informed the Clinton-Gore White House that they had sufficient equipment and employees to complete the project contemplated, which at that time consisted of duplicating approximately 800 back-up tapes. Id. at 106, 112.

526.          Mr. Hanley testified that he informed the Clinton-Gore White House at the February 29, 2000 meeting that OnTrack would have had enough employees and equipment to handle a duplication job of between 3000-6000 tapes. Id. at 115.

527.          In addition, OnTrack had software already prepared that could be used to restore data from the Clinton-Gore White House’s copied back-up tapes. Id. at 112.

528.          In addition, OnTrack is authorized to handle national security information.  Id. at 104.

529.          Mr. Hanley testified that the entire job contemplated by the Clinton-Gore White House would have cost between $5-$7 million, well within the $8-$10 million budgeted by the Clinton-Gore White House to recover the missing Mail2 e-mail. Id. at 118-123.

530.          Approximately two to three weeks after OnTrack’s meeting with the Clinton-Gore White House, OnTrack learned that the job had been assigned an EOP subcontractor, SRA, through EOP’s primary contractor ECS. Id. Evidentiary Hearing at 107.

531.          OnTrack is careful to keep a close watch on potential competitors. Mr. Hanley testified that he had never heard of ECS or SRA. Id. at 103, 109.


532.          Jennifer Zeller, OnTrack’s Director of Product Line Management, testified that when she learned that the Clinton-Gore White House had bypassed OnTrack, she called ECS to offer to assist SRA with the Mail2 recovery project. Tr. of 7/20/00 Evidentiary Hearing at 46-50. Ms Zeller testified that she was told by Mr. Eric Duong, the president of ECS, that SRA did not require any assistance from Ontrack. Id.

533.          At least two employees of SRA, including Dorothy Cleal and John Dankowski, are former employees of the Clinton-Gore White House. See Paul Sperry, “‘The Fix Is In’ On E-Mail Fix?”, www.WorldNetDaily.com, April 5, 2000.

534.          Michael R. Sullivan, Deputy Director for General Services Division in the EOP’s Office of Administration, testified that ECS was hired because it is a an “8-A” contractor which had been certified by the Small Business Administration.  Tr. of 7/17/00 Evidentiary Hearing at 67.

535.          Mr. Sullivan testified that hiring an 8-A contractor would eliminate the need for competitive bidding by contractors on the Mail2 recovery project, and thus expedite the recovery of the subject e-mail. Tr. of 7/14/00 Evidentiary Hearing at 67-73.

536.          All this testimony on the alleged 8-A and other contracting requirements was a fabrication.  On October 10, 2000, Chief of Staff John Podesta admitted that he had instigated the hiring of SRA.  The truth was John Podesta was directly involved in formulating the technical response to Mail2 in February 2000 and initiated the hiring of SRA as the contractor to perform the reconstruction and searches of the Mail2 back up tapes.  SRA was hired because they were referred by an associate of Podesta’s in the White House, John Koskinen, and employed a former government employee who Mr. Koskinen knew.  Podesta contacted this employee before initiating the hiring of SRA as the subcontractor to ECS, the minority prime contractor.  See Podesta Testimony, October 10, 2000 Tr. at 15-16, 64, 80 - 84.


537.          ECS was not hired for the reasons stated to this Court by the Clinton-Gore White House.  ECS was hired as front company for SRA, which had already been hired for its political connections to John Podesta and the Clinton-Gore White House.  This shows Podesta’s, the President’s Chief of Staff, continuing involvement in the e-mail scandal.

538.          As the Court hearings in this matter continued, evidence continued to be destroyed.

539.          In March 2000, Haas still had a file containing Mail2 related e-mail.  See Haas Testimony, August 14, 2000 Tr. at 142.

540.          Haas copied this file to a Zip disk which he gave to Al Leister in Northrop Grumman’s front office, who apparently then transferred it to Chuck Easley.  See Haas Testimony, August 14, 2000 Tr. at 142 - 144.

541.          The file was later mysteriously erased from the Zip disk.  Specifically,  Easley  was working with the file late one day and then when he came in the next day, the Zip disk was empty; the file had been erased.  Easley could not explain this since his office was locked overnight.  See Haas Testimony, August 14, 2000 Tr. at 145 - 147.

542.          This existence of this Zip disk only became known to the Court after Plaintiffs counsel, using information gained from Sheryl Hall, raised it.  Ms. Hall understood that the Zip disk was intended to be hidden from the Court, unless it was specifically asked for in discovery.  See Hall Testimony, July 31, 2000 Tr. at 135-136.

543.          The Clinton-Gore White House has continued to intimidate and retaliate against witnesses in this case.  On June 19, 2000 Howard “Chip” Sparks signed a Declaration setting forth his knowledge of Project X, the threats, and other issues.  This declaration was filed with the Court.  See H. Ex. 37; Sparks Testimony, August 16, 2000 Tr. at 69.


544.          A current Clinton-Gore White House employee, Mr. Sparks, came forward to this Court at great risk to his career.  CITE

545.          After signing and filing the Declaration, Sparks’ office in the Clinton-Gore White House was broken into and, he was later moved from a corner office to a smaller, non-private cubicle.  See Sparks Testimony, August 16, 2000 Tr. at 69 - 70.

546.          This intimatory and retaliatory activity was in response to Sparks testifying before this Court.  CITE.

547.          The Clinton-Gore White House also planned to destroy additional computer evidence in the midst of the various proceedings on these matters.  In an effort to prevent further document destruction, Plaintiffs presented to this Court Sheryl Hall’s Fourth Declaration detailing Clinton-Gore White House plans to destroy the backed-up tapes of hard drives of Clinton-Gore White House staffers which are made as staffers leave the White House or transfer to another office within it.  See Fourth Declaration of Sheryl Hall, March 7, 2000 at ¶4 (H. Ex. 4).

548.          These archived tapes have been evidence in this case for a long period.  See Memorandum Opinion, July 10, 2000 at 2-4.

549.          In response, on April 3, 2000, the Clinton-Gore White House filed a Declaration signed by Michael Lyle, the current Director of the Clinton-Gore Office of Administration (OA). The carefully worded Lyle affidavit said "no proposal is actively under consideration" to destroy the hard‑drive tapes or to stop making them.  See Executive Office of the President’s Response to Plaintiffs’ Request for an Evidentiary Hearing Regarding EOP Computer Hard Drives at Ex. A. (emphasis added).


550.          The refusal of Lyle to deny Ms. Hall’s allegation leads to the inference that Clinton-Gore White House planned to destroy additional computer evidence in this case and were only stopped when the plan was exposed by Ms. Hall.

551.          The Clinton-Gore White House ignored an April 27, 2000 Court directive to produce e-mails within 170 days and lied to it about meeting this deadline.  See Transcript of Motions Hearing, April 27, 2000 at 33.

552.          The Clinton-Gore White House concocted technical and cost reasons for a delay in the production of e-mail, as predicted by Sheryl Hall. See Second Declaration of Sheryl Hall at ¶7 (H. Ex. 2); Nolan Testimony, November 2, 2000 Tr. at 42-45.

553.          Nearly one year after the e-mail scandal was uncovered by Plaintiffs, the Clinton-Gore White House has only completed a search of 25 (twenty-five) tapes of back-up e-mail.   The bulk of the e-mail at issue has still not been searched.

 

W.       The President and Mrs. Clinton Must Have Known of the E-Mail Coverup.

554.          Hillary Clinton oversaw the development of the a computer database, known as the White House Office Databaase (hereinafter “WHODB”) with the assistance of Clinton-Gore White House officials Marsha Scott, Eric Vaden, and Laura Tayman.  See H. Ex. 1 at ¶ 5.

555.          Hillary Clinton had operational control of the Clinton-Gore White House, including but not limited to, the hiring and firing of personnel.  Her agents in the direction of the White House included Marsha Scott and her chief of staff Margaret “Maggie” Williams.  See H. Ex. 1 at ¶ 6.  According to Linda Tripp, Mrs. Clinton “ruled the school.” See Deposition Transcript of Linda Tripp at 359.


556.          Hillary Clinton knew about Project X, and the Office of the First Lady regularly reviewed the results of e-mail searches in response to subpoenas.  See H. Ex. 3 at ¶ 15.

557.          OA officials Virginia Apuzzo, Ada Posey, Katherine “Kate” Anderson, Laura Crabtree, in addition to Clinton-Gore White House official Marsha Scott had access to the White House residence and were on “familiar” terms with Hillary Clinton.  See Hall Testimony, July 31, 2000 Tr. at 43-44.

558.          Posey reported to Assistant to the President for Management and Administration Jody Torkelson until she left the Clinton-Gore White House, and then, in August, 1997, Posey reported to Podesta and Sylvia Matthews, the Deputy Chiefs of Staff who reported to Chief of Staff Bowles.  Bowles reported to the President.  Posey Testimony, August 16, 2000 Tr. at 140-143.

559.          Around the time Mail2 was uncovered in 1998, Podesta regularly reported to the Chief of Staff.  Podesta would advise the WHCO if there were problems with document production.  Podesta Testimony, October 10, 2000 Tr at 16-17.

560.          Podesta and Lockhart briefed President Clinton on the Mail2 problem.  See Podesta Testimony, October 10, 2000 Tr. at 31.

561.          President Clinton knew about the Mail2 problem.  See Podesta Testimony, October 10, 2000 Tr. at 31-32.

562.          President Clinton, head of the Defendant Clinton-Gore White House, lied to the American people about the Mail2 scandal.  When President Clinton was asked about the e-mail scandal by the media, he falsely stated “I believe that we have complied with every single request” and that “I think we are in full compliance.  I believe we are.” See Podesta Testimony, October 10, 2000 Tr. at 28-34; H. Ex 99.  


563.          The evidence adduced to date raises an evidentiary inference that President Bill Clinton knew of and approved early on of the obstruction of justice, threats, and false testimony on Mail2.

564.          The evidence adduced to date  raises an evidentiary inference that Defendant Hillary Rodham Clinton knew of and approved early on  the obstruction of justice, threats, and false testimony on Mail2.

 

 

 

 

 

 

 

 

Respectfully  submitted,

 

JUDICIAL WATCH, INC.

 

 

________________________

Larry Klayman, Esq.

DC Bar No. 334581

 

 

_________________________

Paul J. Orfanedes, Esq.

DC Bar No. 429716

501 School Street, S.W.

Suite 725


Washington, D.C. 20024

(202) 646-5160

 

Attorneys for Plaintiffs


                                                     CERTIFICATE OF SERVICE

 

I hereby certify that on January 9, 2001 a true and correct copy of the foregoing was served by first-class mail, postage prepaid, on the following:

 

 

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

 

James J. Gilligan, Esq.

Elizabeth Shapiro, Esq.

Allison Giles, Esq.

U.S. DEPARTMENT OF JUSTICE

P.O. Box 883

Washington, DC 20044

 

Attorneys for Defendant Hillary Rodham Clinton:

 

David E. Kendall, Esq.

Paul Gaffney, Esq.

Marcie R. Ziegler, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.


Washington, DC 20005

 

 

 

__________________________

Paul J. Orfanedes