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https://clinton.presidentiallibraries.us/files/original/ba9dc439d25093ba39b05c97184a1fd5.pdf
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. letter
Jamie S. Gorelick to John M. QUinn; RE: William H. Kennedy (2
pages)
n.d.
P5
002.letter
Janet Reno to Abner J. Mikva (3 pages)
06/14/1995
P5
003. form
RE: Copy of a canceled check (1 page)
12/24/1992
P6/b(6)
004. note
Loretta Lynch; RE: Telephone number [partial] (1 page)
n.d.
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Beth Nolan
OA!Box Number: 23483
FOLDER TTILE:
Kennedy Notes- Nov. 5 Meeting [1]
Debbie Bush
2006-0320-F
db784
RESTRICTION CODES
Freedom of Information Act -IS U.S.C. SS2(b))
Presidential Records Act- [44 U.S.C. 2204(a)J
Pl National Security Classified Information [(a)(l) ofthe PRA)
P2 Relating to the appointment to Federal office ((a)(2) of the PRA)
PJ Release would violate a Federal statute [(aX3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) ofthe PRA)
PS Release would disclose confidential advice between the President
and bis advisors, or between such advisors (a)(S) of the PRA]
, P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((aX6) ofthe PRA]
b(l) National security classified information [(bXl) of the FOIA)
b(2) Release wouJd disclose internal personnel rules and practices of
an agency ((bX2) of the FOIA)
b(3) Release wouJd violate a Federal statute {(bX3) of the FOIA)
b(4) Release wouJd disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIA]
b(7) Release wouJd disclose information compiled for law enforcement
purposes [(b)(7) oftbe FOIA]
b(8) Release wouJd disclose information concerning the reguJation of
fman cial institutions f(b )(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defmed in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
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<iemral
;!!LQL 20530
The Honorable John M. Quinn
Counsel to the President
The White House
Washington, D.C. 20500
Dear Mr. Quinn:
You have asked whether the Department of Justice can represent
former Associate Counsel to the President William H. Kennedy III,
from whom information is sought by a congressional subpoena.
If
not, you ask whether other government counsel may be retained to
represent him.
As set forth in the Attorney General's June 14, 1995 letter to
Judge Mikva (copy attached), information requests to the Executive
Office of the President may implicate important institutional
interests of the United States.
Those interests may also be
implicated when information requests to a former official concern
actions taken by him in his official capacity while employed by the
Executive Office of the President.
You have informed us of
sufficient facts for us to conclude that the subpoena in question
concerns actions undertaken by Mr. Kennedy in his official
capacity.
Normally, representation of such ,interests would be undertaken
by the Department of Justice.
In this case, however, it is our
understanding that an Independent Counsel, over whom the Attorney
General has some supervisory authority, has sought or may seek
production of the documents that are the subject of the
congressional subpoena.
Although the subpoena at issue was not
promulgated by or upon the request of the Independent Counsel, it
is foreseeable that proceedings relating to the subpoena may affect
the Independent Counsel's investigation.
For reasons similar to
those set forth in the Attorney General's June 14, 1995 letter to
Judge Mikva, we believe that in these circumstances it would be
inappropriate for the Department to assume direct representation.
As in that case, we believe it would be appropriate and in the
public interest to appoint a special attorney to represent Mr.
Kennedy, in his official capacity, thereby ensuring that the
interests of the 'united States are represented and avoiding any
potential conflict of interest. Under the circumstances, we also
believe it prudent for the Department not to exercise control over
the representation by the special attorney.
WJC LIBRARY PHOTOCOPY
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Two other points made by the Attorney General in he:d June 14,
~
1995 letter pertain here as well.
First, the Departmen~retains
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responsibility for representing broad institutional int rests of
~}I
the United States in regard to this matter. Second, the De artment .--()~/
retains the expertise of the Executive Branch on issueS......,J_ike_j";;J>
executive privilege. We would expect to consult with any spe~
attorney retained in this matter without constraining his legal
advice or representation and without requiring the discussion of
information that should otherwise remain confidential.
If you have questions about the mechanics or requirements for
retaining special counsel, please address them to Helene M.
Goldberg at 202-616-4140.
Sincerely,
Jamie S. Gorelick
Deputy Attorney General
Enclosure
WJC LIBRARY PHOTOCOPY
�®ffice of tqe 1\ttarnct! ~encr~tl
1lllfasqingtnn, m. <!I. 20.5.90
June 14, 1995
The Honorable Abner J. Mikva
Counsel to the President
The White House
Washington, D.C. 20500
Dear Judge Mikva:
You have asked whether the Department of Justice can
represent an Executive Branch officer from whom information is
sought by an Office of Independent Counsel. Specifically, you
have asked whether officers of th~ Executive Office of the
President, in their official capacity, may be represented in
litigation in this matter by the Department of Justice; if not,
you ask whether other counsel may be retained. We believe that
this situation raises an issue of first impression.
Information requests to the Executive Office of the
President may implicate important institutional interests of the
United States, and representation of such interests in court is
normally undertaken by the Department of Justice.
In this unique
situation, however, where an information request has been made
through judicial proceedings by an Independent Counsel, over whom
-the Attorney General has some supervisory authority, we believe
it would be inappropriate for the Department to assume direct
representation.
·
·
Except as otherwise provided by statute, .litigation in which
the United States, an agency or officer thereof is a party or is
interested is reserved to the Attorney General, See 28 U.S.C .
. § 516.
The Department has the obligation to represent the United
States, its agencies and officers when sued in their. official
capacities. The Department's representation guidelines govern
the legal representation of government officials when sued,
subpoenaed or charged in their individual capacities. The
guidelines permit representation by private counsel at government
expense when it is determined that direct representation by the
Justice Department is inappropriate because of a conflict of
interest.
The Department's representation guidelines do not address
the issue whether counsel may be retained to represent an officer
in his official capacity when the Department of Justice may have
a conflict in doing so. However, the use of private counsel in
this situation is consistent with the principles underlying the
guidelines.
The Office of Legal Counsel (OLC} has determined
·
WJC LIBRARY PHOTOCOPY
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that the Attorney General may aliow private counsel to qe
retained in special circumstances to represent the inter:~sts of
the United States· where, because of possible conflicts ots
·
interest, representation by Department of Justice attorne
not feasible. See, ~' Memorandum For William P. Barr,
Attorney General, From John 0. McGinnis, Deputy Assistant
Attorney General, Re Reimbursing Department Employees For Private
Counsel Fees (dated September 27, 1990). Generally, these
opinions reflect that where Department representation would
ordinarily be provided in a congressional investigation but is
inappropriate under the specific circumstances, private counsel
may be retained with Department reimbursement.
%\
The principles underlying the Department's representation
guidelines and the analysis of OLC support the conclusion that
representation by private counsel is appropriate here. However,
because this matter involves litigation rather tha~~·
congressional investigation, 28 u.s.C. § 516 may preclude
contractual retention of private counsel. The Attorney General
has the statutory authority to appoint special attorneys to
represent the United States in litigation. See 28 U.S.C. § 543.
In this case, we believe it would be appropriate and in the
public interest to appoint a special attorney to handle a
representation of individual officers in the Executive Office of
the President, thereby avoiding any potential conflict of
interest. Under the circumstances, we believe it prudent for the
Department not to exercise control over the representation by the
special attorney.
There are two additional points that should be made clear.
First, the Department retains responsibility for representing
broad institutional interests of the United States, even in
connection with Independent Counsel matters. For example, the
Department has appeared in court to address issues such as the
proper protection of classified information, the scope of the
President's foreign affairs powers, the constitutionality of the
Independent Counsel Act, and executive privilege issues and
related issues raised by a subpoena to a former President.
Second, the Department retains the expertise of the
Executive Branch on issues like executive privilege.
Just as the
Department shares its expertise with an Independent Counsel
without binding him in his decisionmaking, so would we expect to .
consult with any special attorney retained in this ~atter without
constraining his legal advice in this ma~ter and without
requiring the discussion of information that should otherwise
remain confidential.
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WJC LIBRARY PHOTOCOPY
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If you have questions about the mechanics or requirement~
for retaining special counsel under 28 U.S.C. § 543, pleAse
address them to Helene M. Goldberg at 202-616-4140. ·
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Enclosure
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
RESTRICTION
DATE
SUBJECT/TITLE
001. memo
Miriam R. Nemetz to the File; RE: Meeting with Independent
Counsel ( 6 pages)
03/3111995
P5
LJ'l[f
002. memo
Christopher D. Cerfto File; RE: Magaziner Document Review and
Production (3 pages)
03/15/1995
P5
Lf8~
003.letter
Jane Sherburne to David E. Mills; RE: Deborah Gorham (1 page)
03/15/1995
P5
L1gg
RE. Privilege Log forKevm O'Keefe (1 page)
03/02Ll995
P6lb(6_)__,
005.l:ist
RE· PriJrilege Log for William H. Kennedy (1 page)
0310Ul9.95
006.letter
Jane Sherburne to Francis P. Barron; RE: Stephen R Neuwirth (1
page)
02/24/1995
P5
4 g'Cj
007.letter
Jane Sherburne to Stuart F. Pierson; RE: Marsha Scott (1 page)
02/22/1995
P5
4:90
.OQ8. list
RE. Pri9ilege Log for Bruce.J.mdsey (4 pages)
02116/1995
PS.lb(G)
QQ9.l:ist
Pri:~ilege
e2/t6/l~~s
P6tBE6)
-oo.t:-l:ist
l:.eg fef M<H=gBfe~ A: Williams €1 page)
. P6lb{6}-.
COLLECTION:.
Clinton Presidential Records
Counsel's Office
Beth Nolan
OA/Box Number: 23483
FOLDER TTILE:
Sherburne Correspondence 1995[2]
Debbie Bush
2006-0320-F
db2034
RESTRICTION CODES
Presidential Records Act" [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) ofthe PRA]
P2 Relating to the appoilitment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(aX3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
fmancial information [(a)(4) of the PRA]
PS Release would disclose· confidential. advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
,personal privacy [(a)(6) ofthe PRA]
b(l) National security classified information [(bXl) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA)
b(4) Release would disclose trade secrets or confidential or fmancial
information [(b)(4) ofthe FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) ofthe FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
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�e6JU'IBEN'PIAfl LAWYER WOR
March 31, 1995
MEMORANDUM FOR THE FILE
FROM:
RE:
Miriam R. Nemetz
. Associate Counsel to the President
Meeting with Independent counsel on March 28. 1995
on March 28, 1995, Jane Sherburne and I met with Mark
Tuohey, Brett Kavanaugh, John Bates and Alex Azar at the Office
of the Independent Counsel. The meeting was a follow-up to the
meeting on March 22, 1995, to discuss the document subpoena
relating to Foster.
·
1.
Travel Office
Sherburne started the discussion by describing the
steps that had previously been taken by the White House to
collect documents relating . to the Travel Office. Sherburne
stated that there had been'extensive efforts to collect documents
in connection with the White House Management Review, the GAO
inquiry, and the OPR inquiry, and that the Public Integrity
section had issued a limited document subpoena.
Sherburne said.
that documents were collected from all staff members who were
interviewed in connection with these inquiries, and that a
memorandum seeking documents may also have been sent to all White
House employees. She said that we would determine whether such a
general request had been made and/or identify the individuals
from whom documents had been collected. She also said we would
begin to process the Travel Office documents and prepare to
produce those that were responsive to Paragraphs 1 and 2 of the
subpoena.
2.
Documents in Foster's Office
'We next turned to paragraphs·J through 10 of the
subpoena, which generally seek all documents in Foster's
possession.
Sherburne asked Tuohey and Bates for their further
thoughts on the suggestion, raised at last week's meeting, that
they narrow their'request by identifying specific categories of
documents they had determined should be among Foster's documents. ·
Bates said he was unfamiliqr with the proposal. He said they
needed to know everything that was in the office and were not
prepared to back off on the request. He added, however, that
they were willing to explore whether there was any process short
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of reviewing every piece of paper in Foster's office to ';'hl.ch
they could agree.
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Tuohey attempted to explain why a review of all ,
documents in Foster's possession was necessary. He said that, l.n
connection with the ore's investigation of the President's
connections to McDougal and Madison Guaranty, they have to look
at allegations that Foster's death was related to Whitewater. He
later said that they are investigating whether criminal activity
other than in connection with Whitewater, eMS, or Madison
contributed to Foster's suicide -- if it was a suicide. Tuohey
said they have to look at all the documents in Foster's office,
because the circumstances surrounding his death may relate to the
files in Foster's office. According to Tuohey, a partial review
of the files would not be satisfactory because they do not know
what they will find there. At the end of the day, the ore wants
to be able to say that they reviewed every document that the
White House counsel's Office represented was in Foster's office
at the time of his death.
Sherburne pointed out that files in Foster's office
that related to active matters had been distributed to others in
the office, and that the office had been open between·July and
November of 1993. Therefore, although an effort had been made to
gather the documents that were in Foster's office, we would never
be able to represent that we had gathered everything that had
been there. She continued to press Tuohey for a clearer
explanation of what they hoped to learn from their review of all
of Foster's files~
·
·
Bates responded to Sherburne's questions by stating
that this is a criminal grand jury investigation. Bates said
that we have much more information about the contours of the
investigation than most people ever learn. Bates said that, in
engaging in a discussion and debate about the relevance of the
information they are seeking, we are engaged in a process that is
foreign to a criminal investigation. Bates said that they have a
free hand to investigate any number of crimes that relate to
their mandate, and characterized his discussion with us as "a
courtesy."
Sherburne said she recognized that the ore was the
"nine hundred pound gorilla" in this discussion. She pointed
out, however, that the material the ore is seeking is highly
protected, and that we have an obligation to make sure access to
such material is not granted without a showing of.need. She
stated that we appreciate their courtesy in engaging in these
discussions with us, but observed that the courtesy operates in
two directions. She said we have to balance their need for the
information against our need to protect it. Bates finally sai~
simply that they may have multiple reasons for wanting to review
the files in Foster's office.
WJC LIBRARY PHOTOCOPY
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Sherburne asked whether they had considered the
approach we had proposed, whereby they would review all d~uments
except those protected by the attorney-client and work product
privileges, and we would provide a privilege log or otherw~e
describe the documents withheld. There was some discussion 'a ut
the types of document we would regard as covered by the attorneyclient privilege. Bates observed that, if Foster was troubled by
anything, any reflection of his troubled state would likely be
·contained in the kind of documents that we would claim are
subject to attorney-client privilege. He asked how they could
reasonably agree to carve out from their review a category of
documents that is likely to be most useful to them. Sherburne
said. she shared Bates's instinct that the most "interesting"
documents would be ones protected by the attorney-client
privilege. .
Tuohey suggested that we sit down witn them and go
througp each file, permitting them to review all documents in
each file except those as to which we assert an attorney-client
privilege, and describing the documents withheld in sufficient
detail so that they would be able to determine whether to
litigate over them. Bates expressed reservations about such a
procedure, stating that to fall into any process that approaches
what Nussbaum did would be "intolerable" for them.
:Sates tried 'to address our concern that allowing the
ore to review the-documents would weaken our arguments for
withholding them from third parties, including Congress. He said
that the fact they are proceeding pursuant to a grand jury
subpoena, are part of the executive branch, and would be
conducting an "in camera review" rather than making copies of the
documents would protect us froin third parties seeking disclosure.
He added that the fact that the OIC's interest in the documents
relates primarily to the issue of Foster's death -- a subject
which, he said, neither the House nor the Senate intends to
investigate -- should help us resist requests from Congress to
review the same information. Sherburne noted that the·OIC's
request to review the documents in Foster's office also related
to an aspect of their investigation -- Foster document handling - that the Congress intends to pursue vigorously.
Tuohey reiterated his proposal, which in his view would
allow us to narrow down substantially the documents in dispute.
He said he thought most of the documents, even under our view of
applicable privileges, would be protected by executive privilege
and not attorney-client privilege. Bates then said that agreeing
with us voluntarily to limit their review of the document~ in
Foster's office would cause problems for the ore. He also
pointed out that litigation over the privileged documents would
not be conducted in secret, and noted that the subject matter of
the documents we withhold, if not their substance, would become
known to the public. In the end, he said, anything short of an
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actual "eyes" review of a document would be. "very tough for us."
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Alex Azar repea~ed Bat7s's earlier P<?int tha~ they "don't want .(}1
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anyone to assocJ.ate thJ.s procedure Wl. th Bernl.e Nussbaum's .
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procedure."
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Sherburne observed that it might b~ a waste of t~
embark on Tuohey's proposed procedure to narrow the documents in
dispute if we were inevitably heading toward litigation. She
said we would have to consider the matter further and discuss it
with Judge Mikva.
3.
·
Documents Relating to Foster Created
After His·Death
We then discussed paragraph 11 of the subpoena, which
calls for all documents created after July 20, 1993, referring or
relating to Foster. Bates said that paragraph 11 raised the
larger question regarding whether interview notes were
privileged, but suggested we reserve discussion of that subject
for the end of the meeting. Kavanaugh said he had reviewed the
memorandum circulated to White House staff seeking certain
categories of such documents last summer, and said he was
concerned that it was less specific than the language in
paragraph 11 and might not have captured all documents relating
to the content -- as opposed to the "disposition" -- of the note
found in Foster's office. Sherburne and I said we believed all
such documents would have been collected by the Counsel's Office,
but surmised that some material that was not within the language
of the request negotiated with Fiske may not have been produced.
Bates said it is our responsibility to.satisfy ourselves that all
the responsive documents are collected and provided.
4.
Documents Reflecting the Communications of.
Specified Individuals From July 20-27, 1993
We next discussed paragraph 12 ·of the subpoena, which
calls for records reflecting all'communications of 27 named
individuals for the period from July 20, 1993 through July 27,
1993. Kavanaugh said they wanted all calendars, datebook,
messages and message logs for the individuals named. He said
that substantive information wholly unrelated to Foster, but not
names and telephone numbers, could be redacted. To find other
records that could reveal the fact of a communication that week,
he agreed that not every subject file would have to be searched.
He proposed that, instead, each person (1) search their
chronological files for all records that refer or relate to
Foster or reveal the fact of a conversation or meeting with some
other person during that time frame; and (2) search all files
relating to subjects listed in one of the other documents or that
they recall was active that week. Kavanaugh, who appeared to
have these instructions in'writing, agreed to send us his
language. ,
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Availability: of Records
1
We next discussed the availability of certair\.:,
categories of records sought by the subpoena.
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I stated my understanding that pager messages
over the OASIS computer system were retrievable, as were pages
sent out through the WHCA operator beginning in mid-July of 1993.
I also said that I believed all pager messages for Foster had
been.collected and provided to Fiske. Kavanaugh said he was
familiar with the material provided to Fiske, but could not
believe ~t included all of Foster's messages.
I said I would
check to make sure the records already provided were complete.
With respect to their request for records of pages for other ·
individuals during a defined period, I said I assumed those were
also retrievable to some degree, although it may be extremely
burdensome to track down the messages of 27 individuals. As for
pager bills, I said I understood they reflected a flat user fee
only, and would contain no information about specific
communications.
With respect to the request for telephone records, I
said I understood the only records were monthly telephone bills
for the White House, which would have itemized ·only .commercially
placed long-distance telephone calls. I said I did not believe
we had any system-generated records of local calls, internal
calls, incoming calls, or calls placed over th~ FTS system. Azar
said that the Department of Justice had itemized records of all
calls. I said I would reconfirm my understanding that no such
records exist for the White House. With respect to mobile phone
records, I said I believed the bills would reflect itemized calls
and that we would try to track them down.
With respect to the request for e-mail messages, I said
that back-up tapes containing data for the relevant time period
existed, but that we did not currently have the capacity to
retrieve them.
I explained that such a system was being set up
in the aftermath of the Armstrong litigation but did not
currently exist. ·one of the ore lawyers requested that we
provide a technical person to talk to one of their technical
people about the retrievability of the data. We agreed to.
arrange for a person with technical expertise to prepare a
writing that sets forth the relevant information.
6.
Request for Interview Notes
Bates next turned the ·discussion back to their requ·est
for White House attorney's notes reflecting meetings with
witnesses in connection with hearings last summer and in
connection with grand jury or other testimony. Bates said they
were interested in all.such notes, in connection with both the
Foster and the White House-Treasury contacts matters. Bates said
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th at they v1ewed Paragraph 11 of the subpoena as seek1ng all such
materials relating to Foster.
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Sherburne said she thought there had been mutu~l
recognition last week that we were going to disagree on th.is
subject, and that the ore would seek to nar~ow their reques
substantially so that we could reach an accommodation. Bates
looked at us blankly and said he recalled suggesting only that
they might narrow their requests by excluding our analysis of
facts, but that they wanted all factual information. I asked
whether they viewed their request as having any cutoff date, or
if it continued to the present. Bates said he had not considered
a cutoff date, but said that they would see if they could give us
any comfort on that. Sherburne said that a broad demand for
interview notes would have ramifications that reverberate
throughout the Counsel's Office and would affect the way the
White House functions. Therefore, she said, unless we can
establish a satisfactory cutoff date, we will have a problem with
their request.
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Bates suggested .that we give additional thought to the
fact/analysis distinction. Tuohey said that where the Counsel's
Office is seeking factual information from witnesses, we and the
ore are not necessarily adversaries. I responded that, even if
the White House and the ore had a mutual interest in getting at
the truth, the White House mayhave an overriding interest in
protecting the confidentiality of certain types of communications
which the ore clearly does not share. This, I said, does create
adverseness in this context. Sherburne said the effect of
turning over such information to them would be to disable the
President's lawyers from being able to represent him, and
communicated her dismay that they were approaching this issue
with a broad brush.
In response to questions from Sherburne, ore lawyers
made some attempts to explain their need for the materials in the
absence of specific allegations of perjurious or inconsistent
statements. Azar said they would be in a position to detect
whether, after Fiske announced that there would be no
prosecutions in connection with White House-Treasury contacts, a
high-ranking government official had told us something
inconsistent with what he told Fiske. Tuohey said generally that
if someone testified.before the grand jury, they had an interest
in all other statements the person had made regarding the same
facts. Sherburne said that these justifications for getting all
the notes were unsatisfactory, and said we may wind up litigating
·the m?ttter unless we can reach a meaningful cutoff date.. Tuohey
said they were interested in interview notes for a finite number
of people and that they were willing to talk about a cutoff date.
WJC LIBRARY PHOTOCOPY
�----
---------------------------------------------
T~E
WH!TE HOUSE
WASHINGTON
3/15/95
'1'0 I'ILB
CBRP
Maqaainer Document Revlev and Production
Document review and production will
~roceed
as follows:
L We will go through all of the boxes again and remove
three categortes of documents:
a) Documents we have previously identified as nonresponsive;
~~~ ·
1
~
b) Documents to or from the President, Vice President,
First Lady, the Chief of Staff or Deputy Chief of staff
and documents taken from Ro m
~~
(
~.
~~-~
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.
c) .Material that is protected by h attorney c 1ent
privilege, ~, (i) le!al memoranda prepa~ed by a
member of the White House Counsel's Office and sent to
a member of the White House staff or (ii) gEHtf~utial
iRfe,..aet..n from a member of the White House st~~· and~
sent to .a member of the Counsel's Office.
~~
·~ '
2. Documents that are removed
should be treated as follows: ·
pursu~nt
to paragraph 1 above
a) Non-responsive documents should be maintained in
folders that identify the box and folder from which it
was pulled: ~, Neuwirth Box 1, "HCTF Misc." Folder.
b) Documents in category (l)(b) also should be
.
maintained in folders that identify the box and folder
from which it was pulled. In addition~ each such
folder should be labelled: "Po.ssible Ex.Priv. 11
~~~
\iAfl~~
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c) Documents in category (l)(c) also should be
maintained in folders that identify the box and folder
from which it was pulled. In addition, each such
folder should be labelled "Attorney/Client."
3.
While going through the above process, remove all of the
Ones that were given to us as part
of the production should, of course, stay.
. Post-its that we have put on.
'&/."'~
.· ~· .
~~~1luJ;-~ c·p~lLs: ~ ~
~~'
WJC LIBRARY PHOTOCOPY
�·\
t might be useful to enu erate some of the categories of.
we will not be removin :
a). Documents for which the only basis for nonproduction is that they are work product;
b) Draft pleadings and affidavits, including those with
attorneys' annotations onthem;
c) Correspondence to and from DOJ or another executive
brancq department and a member of the White House
Counsel's office;
d) documents memorializing internal deliberations
pertaining to ethics issues, ~, whether to allow a
particular individual to participate in ,the Working
Group and under what conditions.
e) Draft responses to inquiries from the GAO
f) Documents memorializing administrative matters,
L.SL,., membership lists, paperwork associated with
bringing people on board, etc.
g) Draft and final "Talking Points."
5. Once we have completed the above steps, we will attempt
to secure an agreement with the u.s. Attorney pursuant to which:
a) He would be permitted to review all of the documents ·
with the exception of those culled pursuant to
Paragraph 1 above
b) on the exPress condition that that, by making these
documents available, the White House would not be
waiving any privilege it might have.
6. After the u.s. Attorney has identified the documents he
wishes to have copied, we will review them to determine if. we
.wish to assert any privilege. As of this moment, we have made no
firm decision to·assert or not assert privilege on any document.
Presumably, however, we would not end up asserting privilege on.
any document reviewed pursuant t.o paragraph 5. These procedures,~~
however, would allow us to consider asserting privilege on
. ~~
documents that should have been culled pur.suant to Paragraph 1, ·
.~
but were not.
·
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1. With respect to the documents.described in Paragt~ph l(b) c;b~/
and l(c), we will identify the nature of the document to tb~
At·torney, but not permit him to review it. In other words, we
would divulge roughly the same quantum of information as we would
on a privilege log.
8. If, on the basis of the discussions described in
paragraph 7, the u.s. Attorney:offers a compelling reason why the
document is important to his investigation, we would take· that
·into account in making any final privilege decisions.
WJC LIBRARY PHOTOCOPY
•.
�THE WHITE HOUSE
\.
WASHINGTON
"
..
~
March 15, 1995
BY TELECOPY
David E. Mills, Esq.
Dow, Lohnes & Albertson
1255 23rd Street, N.W.
Suite 500
Washington, D.C. 20037-1194
Re:
Deborah Gorham
Dear David:
We understand that Deborah Gorham will be interviewed
tomorrow by the Office of Independent Counsel. This letter
provides guidance to you with respect to whether, in her
interview, Ms. Gorham should decline to answer any questions in
order to avoid waiving any of the privileges that may apply to
official communications to which she may have been privy as an ·
Assistant in the White House Counsel's Office.
We expect that Ms. Gorham will be questioned about the
death of Vincent W. Foster, Jr., and the handling of documents in
Mr. Foster's office after his death. Because we have waived
privileges that may apply in these areas, Ms. Gorham may answer
all questions relating to Mr. Foster's death, including questions
relating to the motivation for his suicide, and the handling of
documents in Mr. Foster's office. Ms. Gorham should not testify
about the substance of potentially privileged official
communications that do not relate to Mr. Foster's death or the
handling of documents in Mr. Foster's office.
Please feel free to call me if you need clarification
of this guidance.
yours,
Ja
c. Sherburne
Special Counsel to the
President
WJC LIBRARY PHOTOCOPY
�-
--------------·-------------------
THE WHITE HOUSE
WASHINGTON
February 24, 1995
BY TELECOPY
Francis P. Barron, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Re:
stephen R. Neuwirth
Dear Frank:
. We understand that Stephen Neuwirth has been subpoenaed
to appear before a grand jury of the United States District Court
for the District Qf Columbia next week. This letter provides
guidance to you with respect to whether, in his appearance before
the grand jury, Mr. Neuwirth should decline to answer any
questions in orde'r to .avoid waiving any of· the privileges that
may apply to his communications as an Associate Counsel in the
White House. Counsel's Office.
·
We expect that Mr. Neuwirth will be questioned about
the death of Vincent w. Foster, Jr., and the handling of
documents in Mr. Foster's office after his death. Because we
have waived privileges that may apply in these areas, Mr.
Neuwirth may answer all questions relating to Mr. Foster's death
and the handling of documents in Mr. Foster's office (including
the discovery of the note in Mr. Foster's briefcase), except that
Mr. Neuwirth should not testify about the substance of
potentially privileged official communications that do not relate
to Mr. Foster's death or the handling of documents in Mr.
Foster's office. In addition, Mr. Neuwirth should not answer
questions that relate to legal work by the White House Counsel's
Office in preparation for congressional hearings on these matters
or in connection with the Independent counsel investigation of
these matters.
·
Please feel free to call me if you need clarification
·of this guidance.
yours,
J
Sherburne
Special Counsel to the
President
WJC LIBRARY PHOTOCOPY·
�THE WHITE HOUSE
WASHINGTON
February 22, 1995
BY 'l'BLBCOPY
stuart F. Pierson, Esq.
Davis Wright Tremaine ·
suite 700
1155 Connecticut Avenue, N.W.
Washington, D.C. 20036
Re:
Marsha Scott
Dear Stuart:
We understand that Marsha Scott has received a subpoena
to appear and produce documents to a grand jury of the United
States District Court for the District of Columbia on February
23, 1995. This letter provides guidance to you with respect to
whether, in her appearance before the grand jury, Ms. Scott
should decline to answer any questions in order to avoid waiving
any of the privileges that may apply to her communications as an
employee of the Executive Office of the President. .
Based on the nature of the documents requested by the
subpoena, we expect that Ms. Scott will be questioned about the
death of Vincent w. Foster, Jr., and the handling of documents in
Mr. Foster's office after his death. Because we have waived
privileges that may apply in these areas, Ms. Scott may answer·
all questions relating to Mr. Foster's death and the handling of
documents in Mr. Foster's office. However, Ms. Scott should not
testify as to the substance of official communications that do
not relate to those topics, including requests for· legal advice
to Mr. Foster in his capacity as Deputy Counsel to the President.
Please feel free to call me if you need clarification
of these instructions.
Sherburne
Special counsel to the
President
WJC LIBRARY PHOTOCOPY
�II
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTfi'ITLE
""001. rep.oit
United States Distrsit GeHrt efBashlm Distriet ofAFkansas; RE:
United States of Am~ v. James B. McDougal, et al. (18-R&C. 6]
DATE
_(f)p B1-aw'
.002a. letts£
RESTRICTION
03/27/199(}
P3/b(3)
'\
Dan Guthrie to David Kendall; RE·
Subpoena-te-P-residentW:iili'l'ratnm----fT'TtHft(l~i---:j:¥rfikffrl
05/13/1996
P6fb(6)
Jeffetson Clinton (1 page)
Dan Guthrie; RE· Copy gfa Che~k (1 page)
05/1371996
P67b(6)
003. draft
Jane Sherburne to James J. Hastings; RE: White House Travel Office
(1 page)
04/1996
P5
yq I
004. paper
Jane Sherburne to White House Counsel (1 page)
06/06/1996 .
P5
yq~
005. memo
Terry Good to Jack Quinn; RE: Travel Office Files (2 pages)
12/27/1995
P5
l.fq3
. 00213. form
COLLECTION:
Clinton Presidential Records
Counsel's Office
Beth Nolan
OA!Box Number: 23483
FOLDER TITLE:
POTUS Testimony 1996 (2]
Debbie Bush
2006-0320-F
db786
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA]
b(4) Release would disclose trade secrets or confidential or fmancial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) ofthe FOIA]
b(9) Release would disclose geological or·geophysical information
concerning wells [(b )(9) of the FOIA]
National Security Classified Information [(a)(l) oft_he PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
fmancial information [(a)(4) of the PRA]
PS Release would disclose confidenti.al advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defmed in accordance with 44 U.S.C.
2201(3).
RR Document will be reviewed upon request.
''
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James J. Has
Director
Records Appr
National Arc
8601 Adelphi
College Park,
and.Disposition Division
at·college Park
Dear
.
l
ng in response to your letter of Decemb r 15,
~
1995, addres~e to Terry Good, regarding an article app aring in
the Washington Times on November 3, 1995, alleging that White
r.~
House Travel 0 ice documents were missing and had possf ly been ~·
remo
In th letter, you express a concern about the possible ~
alienation of t ese documents and you advise that if the
documents were
termined to be Federal Records, the Whi
•
1
would need to re ort any possible alienation to your off.
accordance with 6 CFR 12.28.104.
eof'? :=..::.~;:;;_:=-:,,____ ~
~
~
~ · ·-''"._ ..
&t~
~~~~~~~~~~~1
further assistance, please do
Sincerely,
Jane c. Sherburne
Special Counsel to the
President.
�____.,..HE WHITE HOUSE
WASHINGTON
DATE:
TO:
FROM:
3/6/96
----n
Jane Sherburne
n
White House Counsel Marvin
Room 130, OEOB, x6-7903
Krislov
.
The Archives people are
. again requesting a
[] Appropriate Action response to th; s
[]FYI
0
Let's Dis~~~~; ry •
0
Per
Please send a
copy when completed.
Our Conversation
Thanks
0 · Per Your Request cc: Jack Quinn
0 Please Return
0
~s
hi
~
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~
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l
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""""..C..
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Other'
WJC LIBRARY PHOTOCOPY
�TH~::~~=G~~~ (Q) [p~ liz
or{cember
p\ ~"'"..
27' 1995
.
TO:
01./4~
TERRY GOOD~
DIRECTOR
.
OFFICE OF RECORDS MANAGEMENT
FROM:
~
c::p
'
REPLY TO-NATIONAL ARCHIVES LETTER REGARDING
DISPOSITION OF TRAVEL OFFICE FILES
SUBJECT:
~~
&·
1-'-{ -'?t..
Marvin Krislov talked briefly with my Deputy, Lee Johnson,
regarding the attached letter. Marvin suggested that we torward
it to you directly for reply.
For your information, ·Lee and I both consider Travel Office files ,..... ....,.
to be Presidential, not Federal.
We are aware of the allegations regarding theses files, but,
despite our.being on record expressing concern over their
disposition, we have no knowledge of the alienation or
destruction of any of these files.
Lee or I can be reached on 62240 •.
l~-
J;~f;\
~~>~fo
~ v.Jf~
(7'-
~i,. ( h r
~~
'T
WJC LIBRARY PH~eypy-
�THE WHITE HOUSE
WASHINGTON
December 27, 1995
TO:
JACK QUINN
COUNSEL TO THE PRESIDENT
FROM:
TERRY
DIRECTOR
~
OFFICE OF RECORDS MANAGEMENT
SUBJECT:
REPLY TO-NATIONAL ARCHIVES LETTER REGARDING
DISPOSITION OF TRAVEL OFFICE FILES
_GOOD~ F
Marvin Krislov talked briefly with my Deputy, Lee Johnson,
regarding the attached letter. Marvin suggested that we forward
it to yo~ directly for reply.
For your information, Lee and I both consider
to be Presidential, not Federa:
'
'('
We are aware of the allegationt
despite our being on record e>q
disposition, we have no knowlec
destruction of any of these fil
Lee or I can be reached on 6224
rr...-:nr""' 1
"Jii:Jii: ..
•
files
....-:-.•.:;.;"
�"
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
RESTRICTION
DATE
SUBJECTfi'ITLE
05/1311996
Pe,lb(6)
DBii Gtitbrie, RE. Copy of a check (1 page)
OSll3l1~9e
Petb(6J..
002.memo
Jack Quinn to The President; RE: Testimony by videotape ( 1 page)
03/20/1996
P5
003. memo
RobertS. Bennett to Jack Quinn and David Kendall; RE: Subpoena to
the President (11 pages)
02/06/1996
P5
United States Disttict Cow t Eastem District of Arkansas, RE:
(4 pages)
6312211996
P6fo(6)
-63tc8tt~~6
P3tb(3}-
Dan Glithric to David Kenctatl, RE. S11epac::Ba fgr Prc::sieeBt Cl:mton
OO'hr.-fetter
~)
...OOlb. form
004. draft
'-J9t
'-115
~ StipW:atioa
OG5-:-fep·ffortFt------lUfrwril·t1Ecdd-SSt::ltarttte!'!!"S"'CC:OoiTUrlnoof"f~Anpp5ie~ailfsst';RREF:MMaacrdiSi§o5in11GGuiilarffiiianrrtyVfl[ltil8~UT..:SS:f.C~.4i6+-]
(6 pages)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Beth Nolan
ONBox Number: 23483
FOLDER TITLE:
POTUS Testimony 1996 [3]
Debbie Bush
2006-0320-F
db787
RESTRICTION CODES
. Freedom of Information Act- [5 U.S.C. 552(b))
Presidential Records Act- [44 U.S.C. 2204(a))
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b )(3) of the FOIA)
b(4) Release would disclose tr:ade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would dis.close information compiled for iaw enforcement
purposes [(b)(7) ofthe FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
PI National Security Classified Information [(a)(l) ofthe PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3.Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
fmancial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
II
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THE WHITE HOUSE
WASHINGTON
March 2 0 , 19
-:;7
MEMORANDUM
FROM
FYI -- The judge will allow your
testimony by videotape. And, he
reportedly agreed to every other one of
our requests for staging the taping, save
one:
he denied our request to be provided
the questions in advance.
Kendall believes he will know (from
the defense) what the questions will be
anyway. And, we think that, on balance,
videotape is still the better way to go
because that is the only method that will
allow us to keep prejudicial and
scurrilous questioning by Starr from the
public eye. Although there is admittedly
no guarantee that we'll succeed in that
~ffort, our objections made during the
videotaping, if successful, will result in
the questions being edited out of the
public version of the videotape.
We would
not, of course, be.able to bury
imp~rtinent or politically motivated
questions if they take place in open
court.
The contrary argument is made in the
attached New York Times clip.
PHOTOCOPY
W~C
HANDWRITING
WJC LIBRARY PHOTOCOPY
�ATTORNEY WORK PRODUCT
PRIVILEGED AND GONFiD~~
February 6, 1996
TO:
Jack Quinn, Esq., Couns~l to the President
David Kendall, Esq., Personal Counsel to the President
FROM:
Robert S. Bennett, Esq.
Re:
Subpoena to the President
I.
Background.
•
On February 5, 1996, a federal district court decided to issue a subpoena to President William Clinton
commanding him to testify.in a bank fraud and conspiracy trial involving Susan McDougal, James B.
McDougal, and Arkansas Gov. Jim Guy Tucker. Both
McDougals want the President's testimony to help
rebut allegations by one of the principal witnesses
against them, former municipal judge David Hale, who
also owned a government-backed finance compa~y.
•
Hale has alleged that in 1986.he made a fraudulent
loan of $300,000 to an advertising company owned by
Susan McDougal after being pressured to do so by
then-Gov. Clinton. Hale said that Clinton was
trying to help James McDougal clean up the books at
Madison Guaranty, a now-defunct savings and loan.
The President has denied Hale's allegations.
•
Susan McDougal's lawyer, Bobby R. McDaniel, filed a
request for a subpoena with the court on Thursday,
February 1. James McDougal's lawyer, Sam Heuer, did
not join in this request, but said he has also been
trying to get Mr. Clinton to testify.
DETERMIN~D
TO BE AN
ADMINISTRATIVE fAARKING
INITIALS: IJ!3 DATE: qj J.1/D9
~00~-0:3;;{6-FI'
:t. : ..:Jl:1fJc
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1-
tu=n~-+'-t
WJC LIBRARY PHOTOCOPY
�II.
The Court's Rulinq.
•
On February 5, 1996, Judge George Howard, Jr., a
District Judge in the Eastern District of Arkansas,
authorized the Clerk of the Court to issue a witness
subpoena for President Clinton to appear and give
testimony during the trial, which is scheduled to
commence on March 4.
•
However, the Court directed defense counsel to
communicate with counsel for the President and
coordinate a schedule for the President's appearance.
•
If it is concluded that the President's personal
appearance is not tenable, the Court directed counsel to consider other options for presenting the
President's testimony. As examples, the Court noted
that the President could testify via video tape or
satellite.
•
Several questions are left unanswered by the Court's
order.
First, the Court does not explain who will
determine whether the President's personal appearance is "not tenable.'' Is this decision entirely
left to the President? To the Court? To both? The
Court also provides no authority for the proposition
that it can issue such a subpoena to the President.
III. The North and Poindexter Cases.
•
"[T]here is an absence of a direct precedent in two
hundred years of American history for the compelled
testimony in a courtroom by an incumbent or former
President." United States v. Poindexter, 732
F. Supp. 142, 157 (D.D.C. 1990).
•
The Court's order is inconsistent with recent case
law concerning the question of when Presidents may
be called as witnesses in criminal proceedings.
A.
•
United States v. North
In United States v. North, 713 F. Supp. 1448 (D.D.C.
1989), Judge Gerhard A. Gesell had.to rule upon the
legitimacy of a subpoena ad testificandum that
defendant Oliver North served upon President Ronald
2
WJC LIBRARY PHOTOCOPY
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Reagan while the President was in office. Ge,sell
j
noted that he could require the appearance of\~~1
former Presid~nt at a criminal trial provided t . t
~ ..c;
"a sufficient .showing has been made that the forme
·
President's testimony is essential to assure the
defendant a fair trial." 713 F. Supp. at 1449
(emphasis added) .
•
Judge Gesell held the subpoena in abeyance until
after the prosecution had completed its
case-in-chief. He then noted that voluminous materials, classified and nonclassified, had been made.
available to both parties by the White House.
Further materials were available to North's lawyers
pursuant to the Classified Information Procedures
Act ("CIPA").
The Court also examined Presi~ent
Reagan's responses to. extensive interrogatories
furnished by him under oath to the grand jury as
well as references to portions of Mr. Reagan's
personal diary.
•
After reviewing these materials, as well as
pleadings from North, Judge Gesell concluded that
North could not "demonstrate with requisite specificity in concrete t~rms what further information
only President Reagan could supply that would be
material and essential to the defense." 713
F. Supp. at 1449 (emphasis added). Accordingly,
Judge Gesell quashed the subpoena ad testificandum.
B.
United States v. Poindexter
•
Approximately one year after North, Judge Harold H.
Greene addressed the issue of presidential testimony
in United States v. Poindexter, 732 F. Supp. 142
(D.D.C. 1990). Defendant Poindexter petitioned the
Court to allow him to serve former President Reagan
with a subpoena to compel his attendance and testimony at trial.
The former President and the Department of Justice (representing the incumbent President) filed papers opposing service of the subpoena.
•
After a hearing, Judge Greene directed Poindexter to
file with the Court and to serve on counsel for
Presidents Reagan and Bush a statement of the precise questions he proposed to ask President Re~gan,
3
WJC LIBRARY PHOTOCOPY
�··--------------------------------------------------------------------------------------,
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and both Presidents Reagan and Bush were
opportunity to respond to that statement.
J-fq 6
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Judge Greene noted that "courts may and have required former as well as incumbent Presidents to
testify in appropriate·cases, but that these courts
have also sought to exercise this power in a way
that would be least damaging to the President or
onerous to the individual occupying the Office, to
the extent that this was possible and consistent
with the rights of the litigant who was in need of
such testimony." 732 F. Supp. at 146 (emphasis
added).
•
Judge Greene concluded that although former President Reagan had not clai~ed executive privilege, "he
will only be compelled to testify at the trial of
this case if the Court is satisfied that his testimony would be material as tested by a meticulous
standard, as well as being necessary in the sense of
being a more logical and more persuasive source of
evidence than alternatives that might be suggested."
732 F. Supp. at 147 (footnotes omitted) (emphasis
added).
•
Judge Greene distinguished this case from North on
the grounds that since Oliver North "never or hardly
ever conferred with the President on a one-to-one
basis as did Poindexter with regularity, the likelihood of President Reagan's testimony being compelled
was always remote, and nothing was lost by a delay."
732 F. Supp. at 153 n.44. Accordingly, he refused
to postpone his review of this issue until the
prosecution had completed its case-in-chief.
•
In accordance with the Court's directions for specificity, Poindexter submitted 183 questions which
he proposed to ask the former President. The Court
then found that many of these questions sought material evidence, but struck 29 questions after considering challenges from President Reagan's lawyers.
732 F. Supp. at 150.
•
After imposing upon the defendant the.burden to make
a "stringent and detailed showing" of the materiality of and his need for the former. President's testimony, and after "meticulously" evaluating that
4
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testimony, Judge Greene concluded that Poindex~~e~ 1
was entitled to serve the subpoena on former Ptesi~~~
dent Reagan.
732 F. Supp. at 154.
.
~
•
Judge Greene then addressed the issue of how President Reagan's evidence was to be provided. He
concluded that written interrogatories would be
insufficient to protect Poindexter's interest.
732
F. Supp. at 155. However, in order to protect
former President Reagan's ability to claim executive
privilege, Judge Greene ordered that his testimony
be taken by videotaped deposition.
•
Judge Greene expected to consult with all counsel
regarding place, time, and logistics of the deposition.
The Court noted that "President Reagan's
convenience will be given substantial consideration,
both as to the area where the deposition will be
conducted and as to the date." 732 F. Supp. at 158
n. 63.
•
Judge Greene further noted that the deposition would
be restricted to the 154 "primary questions"· approved by the Court, as well as "legitimate
follow-up questions in the same area of inquiry."
.732 F. Supp. at 158. Judge Greene would attend the
deposition personally to rule on the questions
themselves, as well as any objections related to
executive privilege issues and CIPA questions.
•
Judge Greene subsequently ruled that the news media
had no First Amendment right to attend the pretrial
deposition of former. President Reagan. United
States v. Poindexter, 732 F. Supp. 165 (D.D.C.
1990). He also agreed to release the tape to the
press only after the Court and the parties had
edited out of the videotape those portions that
contained sensitive material relating to national
security.
!d. Judge Greene agreed to allow the
media to see the tape in advance of trial. only after
he concluded that this would not injure the defendant.
In fact, Poindexter supported broad access of
the press to the testimony of former President Reagan.
•
Judge Greene also ruled that while the media was
entitled· to view the videotape, it was not entitled
5
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to copies of the tape just before trial. Unihed
States v. Poindexter, 732 F. Supp. 173 (D.D.C.~
1990) .
IV.
Previous Examples of Presidential Testimony.
•
In Poindexter, Judge Greene noted that 11 [h]istory
records less than a dozen instances of testimony of
Presidents of the United States in judicial or congressional proceedings in two hundred years of
American history. 11 He divided this history into
thr:ee segments.
A.
Events Early in our History.
•
In 1807, former Vice President Aaron Burr attempted
to compel President Thomas Jefferson to provide. him
with certain documents that he required to defend
himself. The subpoena was eventually issued, but
Chief Justice Marshall concluded that he would not
compel the President to produce a document if he
gave sufficient reasons for declining to produce it.
United States v. Burr, 25 F. Cas. 187 (C.C.D. Va.
1807 (No. 14,694).
•
In 1818, President James Monroe claimed administrative inconvenience when he was summoned to testify
at a court-martial on behalf of the defendant.
President Monroe suggested the alternative of a
deposition, but the parties ultimately agreed to
answers to written interrogatories.
B.
Testimony Before Congressional Bodies between
1846 and 1912.
•
Former President John Tyler was subpoenaed by and
testified before a congressional committee in connection with its investigation of disbursements by
then-Secretary of State Daniel Webster for clandestine operations relating to foreign affairs.
Former
President John Quincy Adams filed a deposition in
the same matter.
•
President Abraham Lincoln testified voluntarily at a
congressional hearing that was investigating alleged
leaks to the press by Mrs. Lincoln.
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without compulsion before congressional committe~s
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regarding his campaign finances and a steel comp~
acquisition. This testimony occurred after he left
office, but concerned events that occurred during
his Presidency.
C.
Post-Watergate Issues.
•
Former President Richard Nixon was subpoenaed both
by the prosecution and the defense in the Watergate
trial of some of his appointees, but was ultimately
excused on account of his ill health. United States
v. Mitchell, 385 F. Supp. 1190 (D.D.C. 1974), aff'd
sub nom Maryland v. Haldeman, 559 F.2d 31., 80-81
(D.C. Cir. 1976) (en bane).
•
However, former President Nixon was deposed pursuant
to judicial process in connection with several civil
actions; Nixon v. Fitzgerald, 457 U.S. 731, 735 n.5
(1982); Halperin v. Kissinger, 401 F. Supp. 272, 274
n.1 (D.D.C. 1975).
•
President Gerald Ford testified under compulsion by
videotaped deposition in the criminal trial of
Lynnette Fromme, his would-be assassin. United
States v. Fromme, 405 F. Supp. 578 (E.D. Cal. 1975)
•
President Jimmy Carter voluntarily provided videotaped depositions in the criminal trial of State
Senator Culver Kidd and Sheriff Buford T. Lingold on
gambling consptracy charges~ and for a grand jury
investigation df an alleged White House attempt to
quash extradition proceedings against an international fugitive.
V.
Comparisons of Past Precedents to this Case.
•
The North and Poindexter cases clearly indicate that
the order issued by Judge Howard in this case does
not adequately protect President Clinton.
•
Judge Howard simply concluded that 11 the request is
made in good faith and is reasonable; that the
expected testimony of the President is relevant to
some of the issues to be litigated in this action;
and that the anticipated testimony of the President
7
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adequate defense." Th1s standard 1s s1gn1f1ca'ntly
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different from Judge Greene's insistence that t
~
President must be a "more necessary" and "more
logic~l" source of evidence than alternatives that
might be suggested.
•
Furthermore, Judge Howard did not hold the request
in abeyance until the government had put forward its
case, as did Judge Gesell in North. Nor did Judge
Howard force the defendarits to submit a specific
list of questions, and provide the President with an
opportunity to respond, as did Judge Greene in
Poindexter.
•
Rather than the fully-developed record of North and
Poindexter, Judge Howard based his ruling upon a
brief ex parte motion filed by Susan McDougal. He
failed to give the President or the Department of
Justice an adequate opportunity to respond to this
motion.
•
Moreover, it should be noted that Poindexter and
North both involved testimony from a former President who was no longer burdened with the cares of
office.
President Clinton, on the other hand, is a
sitting President, who should be entitled to even
more deference by courts. Note, however, the
McDougal's lawyers will claim that the opposite is
true, because North and Poindexter sought testimony
relating to Presidential actions, while the
McDougals are concerned about what President Clinton
did before he became President.
•
The Court's order in the McDougal case is unprecedented and fails to demonstrate the deference to the
Presiden~y found in the North and Poindexter cases.
•
In over 200 years, there are only a handful of
examples of Presidents or former Presidents testifying before courts or congressional committees. No
sitting President has ever been forced to testify in
person at a criminal trial.
8
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VI.
Recommended Ac tiona.
•
Goal: The President will cooperate. The Presi
will testify at a videot~ped depositiori but constitutional precedent will be protected and the President will be protected by specific procedures such
as those used by Judge Greene in Poindexter.
•
•
1
The President should move to hold the subpoena in
abeyance until the parties can negotiate a procedure
for his testimony that will protect the constitutional interests of both the Presidency and the
defendants in this case.
The President should try to persuade the Court to
approve a procedure similar to that followed by
Judge Greene in the Poindexter case.
Such a procedure would mean that:
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The defendants would file their precise questions for the President with the Court and
serve them on the President as well as the
Justice Department.
•
The President and the Department of Justice·
would then have the opportunity to file challenges to any questions they considered to be
improper.
•
The Court would then rule on the objections,
striking any questions he found to be improper.
•
President-Clinton would then submit to a videotaped deposition, scheduled at a time and place
convenient to him. He could then be asked the
approved questions, as well as any legitimate
follow-up_ questions.
•
'
The Judge would personally attend the deposition to rule on the legitimacy of follow-up
questions, as well as any claims of executive
privilege that might arise. Having the Judg~
present would ensure that the deposition could
be completed in one sitting.
9
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The Judge would ultimately rule on whiL0Jparts
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of the deposition could actually be shoWn to
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the jury.
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The media would be given access to the videotape only after the Court and the parties met
to edit out of the videotape any classified
information. Any media access to the tape
would be handled in a manner designed to protect the interests of the defendants and the
Presidency. No copies of the tape would be
provided to the media in advance of the trial.
•
In his motion to hold the subpoena in abeyance, the
President should make clear that he intends to
cooperate with the Court, but that he must protect
the institutional interests of the Presidency.
•
I believe that the ultimate result of this subpoena
will be a videotaped deposition of the President.
However, if the President fails to protect his
interests by filing a motion of some sort and simply
agrees to cooperate, he risks undermining his position in several ways.
•
The President must be protected against any
unreasonable.demands the McDougals' lawyers may
make. Requiring him to appear at trial or
allowing the defense or the Independent Counsel
to conduct a broad interrogation is unacceptable.
•
In the Paula Jones matter, the President has
cited the.North and Poindexter cases as examples of deference shown to the Presidency by
courts. Clearly his position could be weakened
if it now appears that any district court may
hale a President to testify on the simple basis
of an ex parte motion by a criminal defendant.
•
In every conflict over a President's responsibility to courts, both sides look to historical
precedent to see how much deference should be
granted to the President. Over 200 years of
precedent strongly indicate that even a former
president is entitled to special treatment from
courts. If, however, the President fails to
10
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seriously weakened.
~
•
The President's response to this subpoena will
undoubtedly set a precedent for any future
subpoenas he may receive.
He must be careful
that the procedure to which he ultimately
agrees will adequately protect his interests in
future circumstances.
11
WJC LIBRARY PHOTOCOPY
�II
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·withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
RESTRICTION
DATE
SUBJECfffiTLE
001. draft
Memorandum of Counsel for President (20 pages)
04/19/1996
PS
41&
002. draft
Memorandum of Counsel for President (20 pages)
04/19/1996
PS
LfqC/'
COLLECTION:
Clinton Presidential Records
Counsel's Office
Beth Nolan
ONBox Number: 23483
FOLDER TITLE:
Whitewater -President's Testimony 1996
Debbie Bush
2006-0320-F ·
db2036
RESTRICTION CODES
Presidential Records Act - (44 U.S. C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
PI
P2
P3
P4
b(l) National security classified information [(bXl) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(bX3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
fmancial institutions [(b)(8) ofthe FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
National Security Classified Information [(a)(l) of the PRA)
Relating to the appointment to Federal office [(a)(2) ofthe PRA)
Release would violate a Federal statute [(aX3) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
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�APR'-19-96 ~Rl_l8:44 WILLIAMS & CONNOLLY
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~RAFT
MEMORANDUM OF COUNSEL FOR PRESIDENT CONCEP~ING PUBLIC
ACCESS TO VIDEOTAPE OF PRESIDENT'S TRIAL TESTIMONY IN
THIS CASE
Counsel for the President respectfully submit this
.
memorandum to r~X,~ the .Court to consider a proposal for
·
affording public·accese to the videotaped trial testimony of
President Clinton while preventing abuse of the Court's
processes.
The Court's March 20, 1996, Order provides:
'I'he originaJ.·of the videotape will'be held by the Court
with copies provided only to the parties and counsel to the
President. Copies may not be provided to othe.rs unless and
until the tape is played at trial and then only in the form
presented at trial."
11
We understand that the parties have agreed and will present to
.
the Court a
•
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st~pulatJ.onlexeend7
.
,
th1s port1on of the Order until
a verdict is reached in this case 1 in order to avoid any possible
prejudice to either the prosecution or the defendants.
Our suggestion concerns access to the videotape after a
verdict is reached.
We believe
tl~ ~his
authority to control future access to the
\
Court has inherent
videotape~
as a
necessary concomitant of its supervisory power over the
proceedings before it.
See Seattle Times Co. v. Rhinehart, 467
U.S. 201 35 •(1984); Nixon v. Warner Communications, Inc., 435
U.S.
589,
598
(1978).
While it is settled that a court should
not allow its own processes to be used improperly
11
to gratify
WJC LIBRARY PHOTOCOPY
�APR-19-~6 FR,I 18:44 WILLIAMS & CONNOLLY
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DRAFT·
private spite or promote public scandal," Nixon, 435
U.~.
~·.
at 603
(quoting In re Caswell, 19 R.I. 835, 936, 29 A. 259 (189
believe, as we demonstrate later in this memorandum, that
is a likelihood that if unlimited copying of the videotape is
permitted, the videotape will be distorted and use3fin politica:
ll
at tack ads 11
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We also believe, hoTA'everJ':hat there is a way to
.
A t. .... .o., ~·~~.. ~\'"'\ .
public access but prevent such abus~ ~ we suggest that the
Court enter an order authorizing the National Archive.s to exhibit
the tape after ~erdict but prohibiting all copying or I?Ublic
dissemination of the tape.
Such a plan would, in fact/ afford
greater public access than has heretofore occurred when sitting
Presidents have testified in videotaped depositions.
1
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Only twice have sitting Presidents testified on videotape in
criminal proceedings.
~
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In 1975, President Ford "''a.S sv,bpoenaed bf<-
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----
[ .t.hc defena~ td test if¥ at the trial ef ~he President's would= be
!7
assassin, Lynette Fromme.
o. -
On April 14, 1978, President CaTter
~ testified by videot~ in ·the prosecution of state senator Culver
Kidd.
guarded
In each case, custody of the videotapes was closely
by
the Court; the public was not allowed access to them,
and it could not copy them.11
The district courts' observations
The Court and parties took a different approach toward the
deposition of former President Reagan in United States v.
Poindexter~ 732 F. Supp. 165 {D.D.C. 1.990), which was released,
in edited form, to the news media. Factually, that case is quite ·
different from the present one. First, the deposition of
President Reagan occurred after he had left office. Accordingly,·
concerns about misuse of the tape by political adversaries were
not presented in that situation. Second, the defendant's right
(continued ... }
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WILLIAMS &CONNOLLY
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DRAFT
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in restrictir.g public access are instructive [DEVELOP]:; becaus!l
\
or: t:.te difficulty of obtaining the transcripts and orde
we
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7
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attach the relevanc portions to this memorandum as
through 4.
As the Suflreme Court held in Nixon, the Constitution
provides the press and the public no right, under either the
Firs c or Sixth Amendment, to inspect or copy a tape
intl~oduced
into evidence, as long as the.court provides access to the
information contained on the tape by other means.
That condition
is easily satisfied here, as the press and public will have
access to the courtroom while the tape is shown, written
transcripts of the President's testimony will be available bo the
public, and the public will be able to view the tape at the
National Archives.
continued)
to a fair. trial was not at issue in Poindexter, because the
·defendant supported the media's claim of access .to the tape. Id,
at 169-70 ("it now appears that defendant supports broad access
of the press to the testimony of President Reagan.
In view of
that position by the defendant, there would seem to be no
legitimate legal obstacle to early access of the public to the
~.ot f..t"
videotaped testimony"). That is not the' case here, since, as we
demonstrat~ infra Governor Tucker could be prejudiced by
'~ t~
unlimited. copying of the videotape. Nor does the Poindexter
~~~~~~~opinion indicate that President Reagan himself opposed public
copying of the tape, and his individual interests, while
represented, were not discussed in the opinion.
nstea , . e
1rt appears to ave een pr1mar1
cancer
with the potentia
:cisks to national security from the testimony if the press were
allowed to attend the actual videotaping; by contrast, no one
seems to have opposed copying the edited tape of the former
President's deposition. See id. at 169 ( 11 t.he issue here is not
whether, but rather when, the press will have access to President
an's
1/ ( .• ,
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Nor is there a common law right to copy the tape
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.,incremente~.l benet J. t Eo the public is outweighed by the - '"~
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!f.ignificarrt :ttarm:::i that would ax..:.se f:rom such copying?
case, unlimited public copying would compromise the dignity of
the Presidency and the integrity of this Court's processes.
I.
The Proposal Satisfies The First And Sixth Amendments.
I~
is settl~d that the press has no constitutional
right to copy tapes admitted into evidence at trial, as long as a
trial court allows press access to the trial itself and provides
written transcripts of the tapes.
Nixon, 435 U.S. at 608-610.
Thus, in United States v. We.bbe, 791 F.2d 103 (8th Cir. 1986),
CBS had claimed a constitutional right to copy and publish
audiotapes of conversations admitted as
evide~ce
against a
criminal defendant, a public official accused of vote fraud and
obstruction of justice.
Following ,the mandate of Nixon, the
Eighth Circuit unequivocally held that no such right exists under
the Constitution, noting that nneither·the First Amendment
guarantee of freedom of the press nor the Sixth Amendment
guarantee of a public trial supported [the media's] claim to the
audiotapes, when the press had unrestricted access to all of the
information in the public domain, including the tape
transcripts."
65
Webbe, 791 F.2d at lOS.V
The First Amendment right to know is no broader for the
press than for the general public 1 Nixon, 435 c.s. at 609, and
the provision of tape transcripts and press access to the
courtroom satisfies that right to know. V~lley Broadcasting Co.
v. United States Distrigt Court, 798 F.2d 1289, 1292 (9th Cir.
1986) ( 11 Any first amendment rights to which existing case law
£/
(continued .. ,}
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...... .... .........
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DRAFT
Nor does the Sixth Amendment require that the
afforded copying privileges.
In Nixon, the Supreme Cour
squarely rejectec;l the media's Sixth Amendment argument, ho
that "[t]he requirement of a public trial is satisfied by the
opportunity of members of the public and the press to attend the
trial and to. report what they have observed."
435 U.S. at 610.
As in Nixon, · n (t] hat opportunity abundantly exist [s] here.
II.
11
Id.
The Co~on Law Right Of Access To Publie Reeords Does Not
Provide A Right To Copy Or Publish This Videotaped
Deposition.
·
Although there is no constitutional right to copy trial
evidence, the public does enjoy a limited, common-law right to
inspect and copy "public records.
11
For numerous reasons, the
common law right does not extend to copying the videotaped
testimony of the President at issue in this case.V
V ( .. , continued)
entitled [the media] were amply satisfied by the district court's
provision for media access to the trial itself ... )· Allowing the
media to copy and publish the tape wo.uld provide no more
information than is already available. through attending the trial
and reading the transcripts. Accordingly, 11 there is no such
first amendment right'' to copy the videotape. Belo Broadcasting
Corp. v. Clark·, 654 F. 2d 423, 426 {5th Cir.. 1981) .
ln this memorandum,.we treat only those portions of the
videotape admitted into evidence at trial. Obviously, those
portions of the tape not shown to the jury are not "public
records" and thus are not subject to any right of public access.
ll
By stipulation of the parties, and with the Court's
permission, the videotaped deposition in this case will not be
admitted into evidence in its entirety. Instead, any questions
deemed to be improper will be redacted from the tape shown to the
jury. This procedure is designed to avoid the unseemly spectacle
of subjecting a sitting President to hara~sing, irrelevant or
otherwise improper questions in public view. This rationale for
(continued ... )
- 5 -
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In Nixon v. Warner Communications,
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that "the common law right to inspect and copy judicial
is not absolute. 11
435 U.S. at 59S.
Instead, "the
as to access is one best left to the sound discretion of
discretion to be exercised in light of the
relevant facts and circumstances of the case."
435 U.S. at 599.
In United Sta.tes v. Webbe, the Eighth Circuit held, in
accordance with the reasoning in Nixon, that any right of access
to tapes under the common
~aw
is a matter committed to the
1.1 ( ••• continued)
redacting the videotape would be completely undermined if the
public were permitted to copy the redacted portions.
There is no common law ri~ht of access to the redacted
portions of the tape. Documents not admitted into evidence at
trial are not "public records, 11 and so they do not trigger the
common law right of access to such records. See, ~~United
States v. Beckham, 789 F.2d 401, 411 (6th Cir. 1986) {11 the common
law right is stated as a right to inspect and copy public
records, and the transcripts here were not public records. They
were not admitted into evidence, as were the tapes. 11 ) ; United
States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977), certL
genied sub nom. Miami Herald Pub. Co. v, Krentzman, 435 U.S. 968
(1978) ("The press has no right of access to exhibits produced
under subpoena and not yet admitted into evidence, hence net yet
in the public domain. 11 ) ; United States v~ Miller, 579 F. Supp.
B62, 865 (S.D. Fla. 1984) {allowing access to tapes admitted into
evidence but refcsing access to tapes not admitted); Newsday,'
Inc. v. Sise, 518 N.E.2d 930, 933, n.4 (N.Y. 1987), cert. denied,
486 U.S. 1056 {1988); People v. Glogowski, 517 N.Y.S.2d 403, 40506 {Co. Ct. 1987), aff'd 565 N.Y.S.2d 357 {A.D. 1990); Times
Mirror Cg. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989)
(no right of access "when there is neither a history of access
nor an important public need justifying access 11 ) ; United States
v. Ariderson, 799 F.2d 1438, 1441 (11th Cir. 1986), cert. denied
sub nom. Tribune Co. v. United States, 480 U.S. 931 (1987)
("documents collected during discovery are not 'judicial
records'"). Accordingly, there is no legal basis for requesting
access to those portions of the tape not admitted into evidence
at trial.
1
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district court's discretion, "a discretion to be
light of the relevant facts and circumstances of
case."
1.fL. (quoting Nixon 1 435 tJ.S. at 599).
See also Webster
Groves School Dist. v. Pulitzer Publishing co., 898 F.2d 1371,
1376 (8th Cir. 1990) (''When the common law right of access to
judicial records is implicated, we give deference to the trial
court rather than taking the approach of some circuits a.nd
recognizing a 'strong presumption; favoring access 11 (citing
Webbe)).
Webbe expressly adopted the standard pioneered by the
Fifth Circuit in Belo Broadcasting Corp. v. Clark, 654 F.2d 423
(5th Cir. 1981), rejecting any "strong presumption" of ac·cess.
Webbe, 791 F.2d at 106.
Instead, Belg requires a neutral, case-
specific balancing test, under which the Court of Appeals will
defer to the trial court's informed consideration of all relevant
factors.
Belo, 654 F.2d at 429-34.
Applying that standard, the Court in Webbe affirmed the
trial court's.refusal of CBS's request to copy tapes admitted
into evidence against the defendant, a prominent politician, in
his trial on charges of vote fraud and obstruction of justice.
11
We think the common law requires access to information on
judicial proceedings and all evidence of record {unless sealed),
but this right does not necessarily embrace copying of tapes.''
791 F.2d at 106.
Accord United States v. Beckham' 789 F.2d 401
(6th Cir. 1966) (denying media request for common-law access to
copy tapes in evidence) .
The Court held that the district court
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had properly balanced the relevant factors to conclude
tape should not be copied.
The factors the Eighth Circuit found relevant i
were:
(1) that "the news media had attended the trial and pre-
trial hearings,
[and] had reported the events of the trial to the
public," 791 F.2d at 106; {2) that the media "had received
transcripts of the tapes, which the court had released after the
tapes were admitted into evidence," id. ;. (3) that the defendant's
right to a fair trial
both in the current proceeding and in a
later trial on other, pending charges -- might be impaired by
release of the tal?es, id. at 106-107; (4) that release of the
tapes in such a high-profile case would make it more difficult to
select an unbiased jury, either in the subsequent trial on other
charges or
at
any retrial of the defendant, id. at 107; and {5)
that the court might incur administrative difficulties in
providing access to the tapes that would detract from the smooth
progress of the trial, id.
In this case, the same factors are
present, and the same result is therefore warranted.
A.
The Press And Public Have Full Access Tb The
Infor.mation To Which They Are Entitled
Here, as in Webbe, the Court has afforded the press and
the public complete freedom to. attend the trial and pretrial
hearings, and the media has fully reported on these proceedings,
The press has not been obstructed in any way from publishing the
events of the trial.
Most importantly, the press and the public
will be allowed in the courtroom if and when the videotape is
admitted into evidence and played to the jury.
Written
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/'~~
~us·
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~~
.
_\
~\
tra:1scripts of the testimony will also be speedily avafilable.
,(
.
r- ';
jf
Under these circumstances,_ "the knowledge the public c~uld gain
~
\
from seeing the videotape is so small as to be
inconseq~ tial. ,t--o
United States v. Thomas, 745 F. Supp. 499, 502 {M.D. Tenn. 1990).
See also Nixon, 435 U.S. at 599, n. 11; Belo, 654 F.2d at 432.
Indeed, in this case these considerations are even more
persuasive than in Webbe.
In Webbe, the tapes were documentary
evidence recording the allegedly iilegal transactions.
.
In
.
contrast, thevideotape in this case is not itself documentary
evidence, but merely a recording of a witness's testimony.
Testimony is generally available to the public and press only by
attending the trial or by reading the written transcript.
Only
because of the unique circumstances of this case -- the fact that
'
the witneas is a sitting President -- is the testimony being
taped at all.
Relying principally on this distinction, the trial
court in United States v. Hinckley rejected a press motion to
copy the videotaped testimony
Jodie Foster.
o~
trial witness, the actress
j
The court descri~he distinction as one of
"fundamental importance,
n
rul_ing:
To this Court's knowledge 1 no case authority has
addressed the question whether the common law
right of access to judicial records includes a
right to copy videotaped testimony. But it is
logical that Miss Foster's taped testimony should
be treated in the same fashion as is the testimony
of any live witness at trial -- namely, the
testimony is displayed to the jury, which can hear
and view it but not record it. The common law
right of access has never been held to include the
right to televise, photograph, or make aural
recordings of trial testimony. See Nixon v.
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.A\0~
"-
()
Warner Communications 1 supra. Nor has the p1~ lie
ever been permitted to copy the sound record~ngs
which are frequently made by court reporters \to
supplement their stenographic notes of trial
proceedings pursuant to 28 u.s.c. § 753{b).
Indeed, a number of local court rules specificall,7---~
bar the copying of a court reporter's tapes. The
analogy between the Foster videotape and a
reporter's tape recording is far closer than is
the analogv between the videotape and the
Watergate or Abseam recordings (o~ which the press
relies].
Application of American Broadcasting Companies, 537 F. Supp.
1168, 1171 (D.O. C. 1982) (footnotes omitted) (emphasis added).
The court further noted that allowing copying "might contravene
Rule 15" because future witnesses "might reasonably resist
videotape recordation.
Such a result would be counter to the
Rule and would impede the utilization at trial of a practical
instrument of modern technology.''
Id. at i171-72 n.lO.
Finally 1
the court ruled that, even if there were a right to copy the
videotaped testimony of a
absolute.
~ule
15 deponent, the right is not
The court considered, in the exercise of its
discretion, that Ms. Foster was a witness, not a defendant, and
also considered matters of her personal security and privacy ..
For these reasons as well, the court refused ·to permit copying.
Precisely the same result should follow here.
The
videotape is not "real evidence," id. at 1171, but instead "mere
testimonial evidence, a description by a witness of events within
[his] knowledge. "
Id.
live witnesses at trial.
It should be .treated like that of any
[This Court's rules expressly bar the
broadcast even of any audiotape that might be taken with the
Court's per.misaion to assure aoouracy.
To permit broadcasting
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"\ u~ PRE:,s
0
~-
u"
<%
and copying of the videotape would directly contravene. the letter ~\
i•
'):> i
i
and spirit of tl:.a t rule aS well.]
[cite to 1ocal rule
~d
r-'
tJ q(p o._...lfJ
~
develop]
Because it is not usually permissible to tape the
testim~ny of a witness in a federal trial, the public has no
reason to expect access to such a tape in the unique· instance
when it does exist'.
See Times Mirror Co. v. United States,
F. 2d 1210, 1219 {9th
cir. 1989) (''no right of access "when there
.
873
is neither a history of access nor an important public need
justifying access 11 ) ; United States v .. Corbitt, 879 F.2d 224, 229
(7th Cir. 1989); In rePeople v. Atkins, 514 N.W.2d 148, 149
(Mich. 1994).
See also Nixon, 435 U.S. at 610 (press argument
that access to tapes is necessary to provide full public
understanding of trial "proves too much," because "(tJhe same
could be said of the testimony of a live witness, yet there is no
constitutional right to have such testimony recorded and
broadcast 11 ) .
Moreover, releasing this.videotaped deposition for
copying would contravene the longstanding policy and practice of
c.n "'i \\o-t
the federal courts thatltrials are not to be broadoast to the
public -- either live or on tape delay.
v.
See,
~,
United States
Hastings, 695 F.2d 1278 (11th Cir.), cert. denied sub nom.
Post-Newsweek Stations, Florida, Inc. v. United States, 461 U.S.
931 (1983)
i
Estes v. Texas, 381 U.S. 532, 544-50 (1965);
President Ford Transcript at 14 (attached as Exhibit 1)
("the
tape would not go up on appeal any more than would a picture of
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�of-pictures of witnesses in the
not
:)
~t_::_,!5·t.-
'
'
oom") .
Federal courts have long refused to allow members
of the press or public to record trials, and this restriction has
survived legal scrutiny.
Hastings, supra; Conway v. United
~~'
States, 852 F.2d 187 (6th Cir.), cert. denied, 488 U.S. 943
(1988).
If the press were permitted to copy this tape, an end
run around this historical restriction would be available.
This
evasion could occur in any case in which a witness is unavailable
to appear at trial and must therefore testify on tape.
B.
Defendants' Rights To A Fair Trial And An Impartial
Jury Would Be Compromised sy Release Of The Videotape
Release of the tape for general copying might
improperly influence potential jurors and jeopardize the
of any retri l, should one be necessary.
fairnes~
It might also impair
Governor Tucke ... 's right to a fair trial under·the second
indictment he now
aces.
See United States v. Rosenthal, 763
F.2d 1291, 1295, n.S (11th Cir. 1985)
defendant to get
ultimate value
balance") .
In
("the ability of the
trial if access is granted is the primary
d on the non-access side of the
access to a tape, courts often
consider the harm that could res
t to other proceedings
involving the same or similarly-sit
ted defendants.
Webbe, 791
F. 2d at 106 ("not only was the vote fr ud case CUl'rently under
way, but Webbe had two other charges pen 'ng against him in the
district in which the tapes admitted in the
te fraud trial
might also be used"); Edwards, 672 F.2d at 1296 ("[t]he pendini
�APR-19-96 FRI 18:51 WILLIAMS &
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. ~-
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tax evasion charges against defertdant Edwards made a second trial
-s'
,
appropriatrly denied access due to "concern with the
' '
\ ;,_
'
~
rig~
here was
by two defendants {but not by Governor Tucker, it
should be obse
ed) and is not evidence originally introduced by
prospective jurors
If general copying of the videotape is
widely broadcast and may be seen by
n any later trial, along with--most
commentary, analyses, criticism, and
critiques.
context.
be excerpted and presented out of
Those
tape could not help but be influenced
by the views of
testimony.
nature and substance of the
Governor Tucker
to obtain a fair trial· in
his. subsequent trial!! rnight
be compromised by the
publicity generated by broadcas
President's deposition.
As in Webbe, the Governor's right
impartial jury may be
impaired by repeated broadcast of
e videotape.
791 F.2d at
107.
~
In consideration of
in any subsequent proceedings, this Court
rights to a fair trial
ould not allow the
press to copy the videotaped deposition in tHis case.
r-,
c£:·
- . Y->~~1
It is immaterial that the videotaped testimony at issue
permitted, it will
>\
I
more than merely hypothetical"); Belo, 654 F.2d at 431 tcourt
the prosecution.
. -·-·
As the
Because Governor· Tucker is already under indictment for the
separate charge, the fear of prejudicial publicity in a
subsequent trial is not 11 hypothetical," but very concrete. ~;
Edwards, 672 F. 2d at 1296; Belo, 654 F. 2d at 431 ..
i/
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I
Belo court observed:
the side of g
JlalO
"It is better to err, if err we musjt, on 11.,
\1
e:rosity in the protection of
to a fair trial b
ore an impartial jury."
Particularly in light
/_
654 F.2d at 431.
1.'0
·
from permitting the press to copy a
tape they will.be able to see 'n open court and elsewhere (and
the contents of which will be diss
inated in a verbatim
transcript), the balance of factors plainly favors denying access
in this case.
c.
The Administrative Burden Of Allowing Inspection And
Copying Should Be Considered
In addition, as in Webbe, the Court should consider the
administrative burden to the Court of allowing the press and
public to inspect and copy the tape.
763 F.2d at 1294-95.
791 F.2d at 107; Rosenthal,
Specifically, the Court may deny access if
it finds that this procedure could impede the progress of the
trial and distract the participants from their principal mission
to administer justice fairly and expeditiously.
The Court may
also deny access if copying creates a risk of loss or damage to
the tape.
See Matter of
~~T·TV
v. Moynihan, 467 N.Y.S.2d 734,
736 (A.D. 1983).
The solution we propose, providing public access
through the National Archives, would avoid any possible
administrative problems for the Court.
the Archives
wit~
:;\
r-
j
adefendant's\r~ight
&"}
\
~--()
f the inconsequential increase in public
knowledge that would resu
(.)~\
~-
The Court would entrust
a single copy of the tape, which would be showr:
to the public but, by court order, neither removed nor copied.
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D.
Additional Concerns Unique To This Case Miliiato.
Against Allowing Unfettered Access To The Tape
The substantial danger of misuse of the
Hq{p
~resi
Rule 15 videotape also counsels against·release for copying.
Nixon, 435 U.S. at 599-603.
Presidents Ford and Carter
Motivated by these concerns, when
subr~litted
to videotaped depositions,
the courts took great care to preserve, indefinitely, the.
integrity of those tapes.
See supra at 1-2; President Ford
Transcript at 14 (attached as exhibit 1)
(""the tape will not in
any way be revealed to any of the news media 11 j
;
Order in United
States v. Kidd at 2 (April lO, 1978) {attached as exhibit 2)
("The video tape upon the conclusion of the taking shall be
delivered to the court, copies thereof shall not be furnished to
anyone other than the court") .
'Counsel for the President believe
the optimal means of accommodating the interest of the public in
viewing the videotape, and at the same time preserving the
dignity of the Office of the President and the integrity of this
Court's processes, is for the Court to order that the videotaped
,trial testimony be provided to the National Archives, where any
member
of' the public might view the tape, but no one would be
permitted to copy it.
Supreme Court precedent supports according special
consideration to the unique interests of the President in the
right-of-access inquiry.
In Nixon v. Warner Communications,
Inc., 435 U.S. 589 (1978), audiotapes of President Nixon's
conversations were admitted into evidence at the trial .of hi*
former advisors.
The press was allowed access to the trial and
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provided with transcripts of the tapes, but the district( court
\
forbade copying. The Supreme Court did not resolve the '·
PI?$%
qq{p ~~
whether the common law right of access applied to permit t
press to copy those tapes,21 but it did note the existence of
several factors, not usually present in right-of-access cases,
that apply when a President's voice (and, in this case, his
likeness and demeanor) is on the t,apes.
In particular, the Court observed that public copying
could impair the President's interest in privacy.1 and in the
accurate conveyance of any statements of his recollections that
might be compelled by the subpoena in this case.
If made available for commercial recordings or
broadpast by the electronic media, only fractions of
the tapes, necessarily taken out of context, could or
would be presented. Nor would there be any safeguard,
other than the taste of the marketing medium, against
distortion through cutting~ erasing, arid splicing of
tapes. There would be strong motivation to titillate
as wall as to educate listeners.
.
.
435
u.s. at 601.
Perhaps more importantly, the Nixon opinion warned that
a lower court should not allow itself to be used as the·
instrument for distortions by those who might obtain and misuse
the tape.
The Supreme Court emphasized:
the crucial fact that respondents require a court's
cooperation in furthering their commercial plans. The
court -- as custodian of tapes obtained by subpoena
over the opposition of a sitting President, solely to
satisfy ~fundamental demands of due process of law in
~1
The Court found it unnecessary to decide the issue, because
a federal statute, the Presidential Recordings Act, defeated any
common law claim to access in that case. Nixon, 435 U.S. at 60308.
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5>
,.._ I
�APR:..t9-96 FRI 18:53 WILLIAMS. &CONNOLLY
·-- ... _,
. ___
___
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the fair administration of
responsibility to exercise
release of the taoes, with
the circumstances~that led
435
u.s. at
603.
"
I J(')l
"'1-1(/)
('('\ \
z
criminal justice -1 has a
~)
an informed discre~ion as to
;::_,
a sensitive appreci~tion of
!':
to their production~~~
.J..:oCO''
l~'ii.l
The Court continued:
not permit copying upon demand.
/ G
"This responsibility
oes
Otherwise, there would exist a
danger that the court could become a partner in the use of the
subpoenaed material 'to gratify private spite or promote public
scandal.'"· ld. (quotinginreCaswell, l8R.I. 835,836, 29A .
. 259
(1893)).
The common-law right of access to judicial records has
always been subject to the limitation that a court will not order
disclosure of a document that is likely to be used for improper
purposes, lest the court make itself complicit in the improper
acts.
In Caswell, a seminal case defining the limits of the
common law right of access, the Rhode Island Supreme Court
discussed the court's discretion to keep documents under seal in
the context of a divorce case.
[IJt is clearly within the [common law] rule to hold
that no one has a right to examine or obtain copies of
public records . . . for the purpose of creating publ~c
scandal. . . . The judicial records of the state
should always b~ accessible to the people for all
proper purposes, under reasonable restrictions as to
the time and mode of examining the same; but they
should not be used to gratify private spite or promote
public scandal. And, in the absence of any statute
regulating this matter, there can be no doubt as to the
power of the court to prevent such improper use of its
records.
18 R.I. 835, 29 A. 2?9 1 259 (1893).
See
also~
v.
~.
320 A.2d
717 1 723 (Del. Super. 1914) (adopting Caswell rule in divorce
case) .
Nu~erous
common law decisions support the rule that a
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"undue damage" to a person's reputation justifies refusing public
access to a document. under common law balancing test); Sanford v.
Boston Herald-Traveler Coro., 316 Mass. 156, 61 N.E.2d 5, 6-7
(Mass. 1945} (court should not ailow public acces~ to documents
containing libellous statements); Munzer v. Blasdell, 268
Jl..pp.
Div. 9, 48 N.Y.S.2d 355 {1944i ("shocking and scandalous•·
libellous documents are subject to seal); Flexmir v. Herman, 40
A.2d 799, 800 (N.J. Ch. 1945) (ordering sealing of court
documents to avoid revealing trade secret manufacturing process) .
Recent cases following
N1xon
are to the same effect.·
In
Mokhib~r
v. Davis, 537 A.2d 1100, 1115 (D.C. 1998), the District of
Columbia Court of Appeals observed:
[C]ourts have long recognized that information of
certain kinds may be more readily closed from public
view, such as commercial and national security secrets
and information that seriously invades the privacy of
p.~:rties or would merely promote libel or scandal.
~~terial that falls into one of these classes may be
screened from public access on a showing of good cause
to believe disclosure would create specific harms of
third
the kind sought to be avoided by giving that sort of
information greater protections.
(Citations omitted.)
See also,
~,
Webster Groves Scheel Dist.
v. Pulitzer Publishing Co., 696 F.2d 1371, 1376-77 (8th Cir.
1990}
(public interest in access to file in disabled child court
proceeding outweighed
nby
T.E.'s privacy interest and the state's
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�•\UN
,.>"'
u
PI?
~0'
interest in protecting minors from the public dissemination of
(f
hurtful information"}.
LfJ{p
\
~
~
-\\
~!
\
The Nixon Court's concerns, in accordance wit
rationale of these numerous cases applying the common
of ~ccess, are fully applicable to this case.
As an incident of
his compelled testimony, the President should not be subjected to
the distortions and abuses that would necessarily result from
unrestricted copying of the videotape.
These fears are not
unfounded speculation; the PlAesident' s political opponents have
already declared their intention to seek access to the tape for
the specific purpose of attacking the President.
See,
~'
Rowley, Clinton Deposition Has Critics Pondering Potential TV
Ad§., Associated Press, April l, 1996 (quoting prominent GOP uad
man" as saying, "I'd love to get my hands on the president on the
stand.
11 ) ;
Means, Clinton Whitewater Testimony:
Attack Ad a
Double-Edged Sword, Orlando Sentinel, April 3, 1996 ("Republican
strategists are gleeful about the potential availability of a
Clinton video in which
he
talks about his association with the
principal figures in the complex banking and real-estate tangle
commonly referred to as Whitewater.
No matter what he says, they
envision campaign attack ads showing the president on the
defensive about a criminal matter, .reinforcing his ties to
unsavory folk.
11
).
These concerns are not present for an ordinary
witness who gives live testimony; there is no reason to treat the
President's testimony with any lees consideiation--or to penalize
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k"'- ''-',. . rrsU'>
him- ~simply because the demands of his office require hi~/2o
\·\
,.....
Moreover, the Nixon Court's admonition that a cG:>urt
.
should act with
11
.
.
~)
tf1&
1
i
deliver that testimony on videotape.
<::>~
.
,,- -
.
_-,..&- /
l
Y>~-o;;
a sensitive appreciation of the circumstan~
that led to [the] production" of this videotape also mandates a
prohibition on unrestricted copying.
A sitting President is
being compelled to testify in order to effectuate the defendants'
simply no 'ustification for subjecting the Chief
~===-=---Executive of the United States to prejudice because he fulfills
t~is
solemn duty.
Avoiding such ·an unfair result is a proper
reason for denying unrestricted access to the
~ideotape
here.
Beckham, 789 F.2d at 410 ("The district court could not ignore
the publicity and controversy regarding the judicial
proceedings")~
is
simp~eason
for this Court to
"becom_[eJ a partner in the use of the subpoenaed material 'to
gratify private spite or promote public scandal.'"
Nixon, 435
U.S. at 603.
Lodging a copy of President Clinton's videotaped trial
testimony after a verdict is reached strikes the proper balance.
We respectfully submit. that this would afford public access while
preventing partisan abuse.
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WILLIAMS &CONNOLLY
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UNDER
MEMORANDUM OF COUNSEL FOR PRESIDENT CONCEP~ING PUBLIC
ACCESS TO VIDEOTAPE OF PRESIDENT'S TRIAL TESTIMONY IN
TlUS CASE
Counsel for the President respectfully submit this
memorandum to invite the Court to consider a proposal for
affording public access to the videotaped trial testimony of
President Clinton while preventing abuse of the Court's
processes.
The Court's March 20, 1996, Order provides:
'l'he original of the videotape will be held. by the Court
with copies provided only to the parties and counsel to the
President. Copies may not be provided to others unless and
until the tape is played at trial and then only in the fonn
presented at trial."
11
We understand that the parties have agreed and will present to
the Court a stipulation extending this portion of the Order until
a verdict is reached in this case 1 in order to avoid any possible
prejudice to either the prosecution or the defendants.
Our suggestion concerns access to.the videotape after a
verdict is rea.ched.
We belieye that this Court has inherent
authority to control future access to the videotape/ as a
necessary concomitant of its supervisory power over the
proceedings before it.
u.s.
See Seattle Times Co. v. Rhinehart, 467
20, 35 (1984); Nixon v. Warner Communications, Inc., 435
U.S. 589, 598 (1978).
While it is settled that a court should
not allow its own processes to be used improperly ,,to gratify
WJC LIBRARY PHOTOCOPY
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,R?'-1-/qJ ~i~
private spite or promote public scandal," Nixon, 435
u ..s;i.
~\
at 603
\
,..... .
(quotinginreCaswe.ll, 16R.I. 835 1 836, 29A. 259 (1893-~)~ ·~we
~(o':
.
believe, as we demonstrate later in this memorandum, that
'
t~
\~~
·
is a likelihood that if unlimited copying of the videotape is
permitted, the videotape will be distorted and used in political
11
attack ads".
We also believe, however, that there is a way to afford
public access but prevent such abuse, and we suggest that the
Court enter an order authorizing the National Archives to exhibit
the tape after the verdict but prohibiting all copying or public
dissemination of the tape.
Such a plan would, in fact, afford.
greater public access than has heretofore occurred when sitting
Presidents have testified in videotaped depositions.
Only twice have sitting Presidents testified on. videotape in
.
'
criminal proceedings . . In 1975, President Ford was subpoenaed by
the defense to testify at the trial of the President's would-be
assassin, Lynette Fromme.
On April.l4, 1978 1 President Carter
testified by videotape in the prosecution of state senator Culver
Kidd.
·In each case, custody of the videotapes was closely
guarded
by
the Courti the public was not allowed access to them,
and it could not copy them . .J/
ll
The district courts, observations
The Court and parties took a different approach toward the
deposition of former President Reagan in United states v.
Poindexter, 732 F. Supp. l6S {D.D.C. 1990), which was released,
in edited form, to the news media. Factually, that case is quite
different from the present one. First, the deposition of
President Reagan occurred after he had left office. Accordingly,·
concerns about misuse of the tape by political .adversaries were
not presented in that situation. Second, the defendant,s right
(continued.,.}
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tf11
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in restricting public access are instructive [DEVELOP]; J;>ecause
.
~\
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of the difficulty of obtaining the transcripts and orders,
attach the relevant portions to this memorandum as Exhibits
through
4,.
As the Supreme Court held in Nixon/ the Constitution
provides the press and the public no right, under either the
First
into
ol.~
Si:xth Amendment, to inspect or copy a tape introduced
evidence~
as long as the Court provides access to the
info:t'mation contained on the tape by other means,
That condition
is easily satisfied here, as the press and public will have
access to the courtroom while the tape is shown, written
transcripts of the President's testimony will be available to the
public, and the public will be able to view the tape at the
National Archives.
!I ( .• , continued)
to a fair trial was not at issue in Poindexter, because the
defendant·supported the media s claim of access to the tape. Id.
at 169-70 (":.t now appears that defendant supports broad access
of the press to the testimony of President Reagan. In view of
that position by the defendant, there would seem to be no
legitimate legal obstacle to early access of the public to the
videotaped testimony"). That is not the' case here, since, as we
demonstrate infra Governor Tucker could be prejudiced by
unlimited copying of the videotape. Nor does the Poindexter
opinion indie!ate that President Reagan hims!;!lf opposed public
copying of the tape, and his individual interests, while
represented, were not discussed in the opinion. Instead, the
court _appears to have been primarily concerned with the potential
risks to national security from the testimony if the press were
allowed to attend the actual videotapingi by contrast, no one
seems to have opposed copying the edited tape of the former
President's deposition. See id. at 169 ( 11 the issue here is not
whether, but rather when, the press will have access to President
Reagan's testimony 11 ) .
1
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·Nor is there a common law right to copy the tape wh~ the
.
incremental benefit to the public is outweighed by the
significant harms that would arise from such copying.
"
~J
~~0~
~~
In this
case, unlimited public copying would compromise the dignity of
the Presidency and the integrity of this Court's processes.
I.
The Proposal Satisfies The First And Sixth Amendm.ents.
I~
is settled that the press has no constitutional
right to copy tapes admitted into evidence at trial, as long as a
triai court allows press access to the trial itself and provides
written transcripts of the tapes.
Thus, in United States v. Webbe
1
Nixon, 435 U.S. at 609-610.
791 P.2d 103 (8th Cir. 1996},
CBS had claimed a co11Stitutional right to copy and publish
audiotapes of conversations admitted as evideqce against a
criminal defendant, a public official accused of vote fraud and
obstruction of justice.
Following the mandate of Nixon, the
Eighth Circuit unequivocally held that no such right exists under
the Constitution, noting that
11
neither the First Amendment
9lJ:arantee of freedom of the press nor the Sixth Amendment
guarantee of a public trial ·supported [the media's] claim to the
audiotapes, when the press had unrestricted access to all of the
information in the public domain, including the tape
transcripts."
Webbe/ 791 F.2d at lOs.V
The First Amendment right to know is no broader for the
press th~n for the general public, Nixon, 435 U.S. at 6091 and
the provision of tape transcripts and press access to the
courtroom satisfies that right to know. Valley Broadcasting Co.
v. United States District Court, 79B F.2d 1289, 12.92 (9th Cir.
1986) {11 Any first amendment rights to which existing case law
(continued .. ,)
6./
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Nor does the Sixth
afforded copying privileges.
}~endment
1
require that the press be
In Nixon, the Supreme
squarely rejected the media's Sixth
~mendment
CoUrt~~·
argument, holding
that "(t]he requirement of a public trial is satisfied by the
opportunity of members of the public and the press to attend the
trial and to report what they have obser.red.
As in Nixon,
II.
11
11
435 U.S. at 610.
[t]hat opportunity abundantly exist(s] here.n
Id.
The Common Law Right Of Access To Publie Records Does Not
Provide A Right To copy Or Publish This Videotaped
Deposition.
Although there is no constitutional right to copy trial
evidence, the public does enjoy a limited, common-law right to
inspect and copy
11
public records.
11
For numerous reasons, the
common law right does not extend to copying the videotaped
testimony of the President at issue in this case.Y
i:J ( ••• continued)
entitled [the media) were amply satisfied by the district court's
provision for media access to the trial itself. 11 ) Allowing the
media to copy and publish the tape would provide no more
information than is already available through attending the trial
and reading the transcripts. Accordingly 1 11 there is no such
first amendment right '1 to copy the videotape. Belo Broadcasting
Corp. v. Clark~ 654 F:2d 423, 426 (5th Cir. 1981).
In this memorandum, we treat only those portions of the
videotape admitted ipto evidence at trial. Obviously, those
portions of the tape not shown to the jury are not "public
records 11 and thus are not subject to any right of public access.
ll
By stipulation of the parties 1 and with the Court's
permission, the videotaped deposition in this case will.not be
admitted into evidence in its entirety. Instead, any questions
deemed to be improper will be redacted from the tape shown to the
jury. This procedure is designed to avoid the unseemly spectacle
of subjecting a sitting President to harassing, irrelevant or
otherwise improper questions in public view. This rationale for
{cant inued ... )
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In
observed that
Ni~on
11
v. Warner communications, the
the common law
·
r~gh t
. ~-
Suprem~
0 N PR£:81 "
8'ourt
00::\
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·
to ~nspect and copy ID u d' ~a 1
lC ·
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records is not absolute.·"
,,~-~-
435 U.S. at 59S.
Instead(
decision as to access is one best left to the sound
11
~
'
th'
discreti<~m
t::: ·
I
0::!
1-(;->::.
of
the trial court, a discretion to be exercised in light of the
relevant facts and circumstances of the case. 11
435 U.S. at 599.
In United States v. Webbe, the Eighth Circuit held, in
accordance with the reasoning in Nixon, that any right of access
to tapes under the common law is a matter committed to the
continued)
redacting the videotape would be completely undermined if the
public were permitted to copy the redacted portions.
11 (, ••
There is no common law right of access to the redacted
portions of the tape. Documents not admitted into evidence at
trial are not 11 public records, 11 and so they do not trigger the
common law right of access to such records. See, ~~ United
States v. Beckham, 789 F.2d 401, 411 (6th Cir. 1986'} {11 the common
law right is stated as a right to inspect and copy public
records, and the transcripts here were not public records. They·
were not admitted into evidence, as were the tapes. 11 ) ; United
States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977), certL
genied sub nom. Miami Herald Pub. co. v. Krentzman, 435 U.S. 968
(1978) {"The press has no right of access to exhibits pr·oduced
under subpoena and not yet admitted into evidence, hence not yet
in the public domain. 11 ) ; United States v. Miller, 579 F. Supp.
862, 865 (S.D. Fla. 1984) {allowing access to tapes admitted into
evidence but refusing access to tapes not admitted); Newsday,
Inc. v. Sise, 518 N.E.2d 930, 933, n.4 (N.Y. 1987), cert. denied,
486 U.S. 1056 (1988); People v. Glogowski, 517 N.Y.S.2d 4031 40506 (Co. Ct. 1987), aff'd, 565 N.Y.S.2d 357 {A.D. 1990}; Times
Mirror Co. v. United States, 873 F.2d 1210, l219 (9th Cir. 1989)
(no right of access 11 when there is !leither a history of access
nor an important public need justifying access"}; United States
v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986), cert. denied
'sub nom. Tribune Co. v. United States, 480 u.s. 931 (1987)
("documents collected during discovery are not 'judicial
records' n) • Accordingly, thel·e is no legal basis for requesting
access to those portions of the tape not admitted into evidence
at trial.
·
·
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. district court's discretion, "a discretion to
light of the relevant facts and circumstances
case."
Id.
(quoting Nixon, 435 U.S. at 599).
See also
Groves School Dist. v. Pulitzer Publishing Co., B98 F.2d
1376 (8th Cir; 1990)
("When the common law right of access to
judicial records is implicated, we give deference to the trial
court rather than taking the approach of some circuits and
recognizing a 'strong presumption' favoring access" (citing
Webbe)).
Webbe expressly adopted the standard. pioneered by the
Fifth Circuit in Belo Broadcasting Corp. v, Clark, 654 F.2d 423
(5th Cir. 1981) ,· rejecting any
Webbe, 791 F.2d at 106.
11
strong presumption" of ac·cess.
Instead, BelQ requires a neutral, case-
specific balancing test, under which the Court of Appeals will
defer to the trial court's informed consideration of all.relevant
factors.
Belo, 654 F.2d at 429-34.
Applying that standard, the Court in Webbe affirmed the
trial court's refusal of.CBS's request to copy tapes admitted
into evidence against the defendant, a prominent politician, in
his trial on charges of vote fraud and obstruction of justice,
11
We think the common law requires access to information on
judicial proceedings and all evidence of record {unless sealed),
but this right does not necessarily embrace copying of tapes."
791 F.2d at 106.
Accord United States v. Beckham, 789 F.2d 401
(6th Cir. 1986) (denying·media request for common-law access to
copy tapes in evidence) .
'I'he. Coul.·t held that the district court
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had p:ropel-ly balanced the relevant factors to conclude
.
.
tape should not be copied.
'\
\
The factora the Eighth Circuit found relevant
v.1ere:
.~.
the
~\
&/
t-fq1
in~
(1) that "the news media had attended the trial and pre-
trial hearings,
..
tl{,it
·
[and] had reported the events of the trial to the
public," 791 F.2d at 106; (2) that the media "had received
transcripts of the.tapes, which the court had released after the
tapes were admitted into evidence," id.; (3) that the defendant's
right to a fair trial
both in the current proceeding and in a
later trial on other, pending charges -- might be impaired by
release of the tapes 1 id. at 106-107; (4) that release of the
tapes in such a high-profile case would make it more difficult to
select an unbiased jury, either. in the subsequent trial on other
charges or at any retrial of the defendant, id. at 107; and (5)
that the court might incur administrative difficulties in
providing access to the tapes that would detract from the smooth
progress of the trial, id.
In this case, the same factors are
present, and the same result is therefore warranted.
A.
The Press And Public Eave Full Access To The
Infor.mation To Which They Are Entitled
Here, as in Webbe, the Court has afforded the press and
the public complete freedom to attend the trial and pretrial
hearings, and the media has fully reported on these proceedings.
The press has not been obstructed in any way from publishing the
events of the trial.
Most importantly, the press and the public
will be allowed in the courtroom if and when the videotape is
admitted into evidence and played to the jury.
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transcripts of the testimony will also be. speedily available.
.
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Under these.circumstances, "the knowledge the public col.lld gain
\
from seeing. the videotap'e is so small as to be
~\
r-.
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inconsequ~~
United States v. Thomas, 745 F. Supp. 499, 502 (M.D. Tenn. 1990).
See also Nixon, 435
u.s.
at 5991 n. 11; Belo, 654 F.2d at 432.
Indeed, in this case these considerations are even more
persuasive than in Nebbe.
evidence recording the
In Webbe, the tapes were documentary
all~gedly
illegal transactions.
·rn
contrast, the videotape in this case is not itself documentary
evidence, but merely a recording of a witness's testimony.
Testimony is generally available to the public and press only by
attending the trial or by reading the written transcript.
Only
because of the unique circumstances of this case -- the fact that
the witness is a sitting President
-~
is the testimony being
taped at all.
Relying principally on this distinction, the trial
court in United States v. Hinckley rejected a press motion to
copy the videotaped testimony of a trial witness, the actress
Jodie Foster.
The court describe the distinction as one of
,; fundamental importance,
11
ruling:
To this Court's knowledge 1 no case authority has
addressed the question whether the common law
right of access to judicial records includes a
right to copy videotaped testimony. But it is
logical that Miss Foster's taped testimony should
be treated in the same fashion as is the testimony
of any live witness at tri-al -- namely, the
testimonyis displayed to the jury, which can hear
and view it but not record it. The common law
right of access has never been held to include the
right to televise, photograph 1 or make aural
recordings of trial testimony. See Nixon v.
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~\
~\
Warner Communications, supra. Nor has the pu¥1-lc
_
ever been permitted to copy the sound recordi_ngs
1 1
which are frequently made by court reporters (to
1
supplement their stenographic notes of trial
proceedings pursuant to 28 U.S.C. § 753(b);
Indeed, a number of local court rules specific ly
bar the copying of a court reporter's tapes. The----~
analogy between the Foster videotape and a
reporter's tape recording is far closer than is
the analogy between the videotape and the
Watergate or Abscam recordings [on which the press
relies].
q1
~\
'f:-:
Application of American Broadcasting Companies, 537 F. Supp.
1168, 1171 (D.D.C. 1982)
{footnotes omitted) {emphasis added).
The court further noted that allowing copying
11
might contravene
Rule 1sn because future witnesses "might reasonably resist
videotape recordation.
Such a result would be counter to the
Rule and would impede the utilization at trial of a practical
instrument of modern technology.''
Id. at i171-72 n.lO.
Finally,
the court ruled that, even if there were a right to copy the
videotaped testimony of a Rule 15 deponent, the right is not
absolute.
The court considered, in the exercise of its
discretion, that Ms. Foster was a witness, not a defendant, and
also considered matters of her personal security and
pri~acy.
For these reasons as well, the court refused to permit copying.
Precisely the same result should follow here.
videotape is not
11
The
real evidence," id. at 1171, but instead ' mere
1
testimonial evidence, a description by a witness of events within
[his] knowledge."
.Is;i.
live witnesses at trial.
It should be treated like that of any
[This Court's rules expressly bar the
broadcast even of any audiotape that might be taken with the
Court's permission to assure accuracy.
To permit broadcasti.ng
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and copying of the videotape would directly contravene t~0 letter
and spirit of th.at rule as ·well. l
I
0
qq1
[cite to local rule arid
develop]
Because it is not usually permissible to tape the
testimony of a witness in a federal trial, the public has no
re~son
to expect access to such a tape in the unique instance
when it does exist.
See Times Mirror Co. v. United States, S73
F.2d 1210, 1219 (9th Cir. 1989}
("no righ~ of access "when there
is neither a history of access nor an important public need
justifying access 11 ) ; United States v. Corbitt, 879 F.2d 224, 228
(7th Cir. 1989); In rePeople v. Atkins, 514 N.W.2d 148, 149
(Mich. 1994).
See also Nixon, 435 U.S. at 610 (press argument
that access to tapes is necessary to provide full public
understanding of trial
npr~ves
too much," because "[t]he same
could be said of the testimony of a live witness, yet there is no
constitutional right to have such testimony recorded and
broadc.:..st 11 ) .
Moreover, releasing this.videotaped deposition for
copying would contravene the longstanding policy and practice of
the federal courts that trials are not to be broadoast to the
public -- either live or on tape delay.
See,
~'
United
Stat~s
v. Hastings, 695 F.2d 1278 (11th Cir.), cert. denied sub nom.
Post-Newsweek Stations. Florida. Inc. v. United States, 461 U.S,
931 (1983}; Estes
v~
Texas, 381
u.s.
532, 544-50 (1965);
President Ford Transcript at 14 (attached as Exhibit 1) ( 11 tbe
tape would not go up on appeal any more than would a picture of
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DRAFT
any witness who might testify in court for the reason tha't
j;
r-i
not permit the taking of pictures of witnesses in the
courtroom").
Federal courts have long refused to allow
of the press or public to record trials, and this restriction has
survived legal scrutiny.
~-~
Hastings, supra; Conway v, United
States, 852 F.2d 197 (6th Cir.), cert. denied, 488 U.S. S43
(1988} .
If the press were permitted to copy this tape, an end
run around this historical restriction would be available.
This
evasion could occur in any case in which a witness is unavailable
to appear at trial and must therefore testify on tape.
B.
Defendants' Rights To ~ Fair Trial And An Impartial
Jury Would Be Compromised By Release Of ~he Videotape
Release of the tapa for general copying might
improperly influence potential jurors and jeopardize the fairness
of any retrial, should one be necessary.
:rt
might also impair
Governor tucker's right to a fair trial under the second
indictment he now faces.
F.2d 1291, 1295, n.S
See United States v. Rosenthal, 763
(11th Cir. 1995)
("the ability of t_he
defendant to get a fair trial if access is granted is the primary
ultimate value to be weighed on the non-access side of the
balance") .
!n ruling c·n press access to a tape, courta often
consider the harm that could result to other proceedings
involving the same or similarly-situated defendants.
P. 2d at l06 ("not only
~tlas
the vote fraud case
Webbe, 791
cul~rently
under
way, but Webbe had two other charges pending against him in the
district in which the tapes admitted in thevote fraud trial
might also be used"); Edvrarda, 672 F.2d at 1296 (" [t] he pending'
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&
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tax evasion charges against defer1dant Edwards made a
sec~nd
trial
I
more than merely hypothetical'1 ) ; Belo, 654 F.2d at 431 (&ourt
appropriately denied access due to "concern with the
yet -to-be-tried defendant 11 )
Jfq 1
righ~,
•
It is immaterial that the.videotaped testimony at issue
here was sought by two defendants (but not by Governor Tucker 1 it
should be observed) and is not evidence originally introduced by
the prosecution.
If general copying of the videotape is
permitted, it will be widely broadcast and may be seen by
prospective jurors in any later trial, along with--most
significantly- -·accompanying commentary, analyses, . criticism/ and
critiques.
context.
Portions may be excerpted and presented out of
Those viewing the tape could not help but be influenced
by the views 9f others about the nature and substance of the
testimony.
Governor Tucker;s ability to obtain a fair trial in
his subsequent triali1 might therefore be compromised by the
publicity generated by broadcast of the President's deposition.
As in Webbe, the Governor's right to an impartial jury may be
impaired by repeated broadcast of the videotape.
791 F.2d at
107.
In consideration of defendants, rights to a fair trial
in any subsequent proceedings, this Court should not allow the
press to copy the videotaped deposition in this case.
!'·
As the
Because Governor Tucker is already under indictment for the
separate charge, the fear of prejudicial publicity in a
subsequent trial is not ''hypothetical, 11 but very concrete. Id.;
Edwards, 672 F.2d at 1296; Belo, 654 P.2d at 431.
.11
- 13 -
WJC LIBRARY PHOTOCOPY
�'APR-1g-gg FRI 18:51 WILLIAMS & CONNOLLY __ ........ --.-..
.
. ...
P. 15
........ ..... ----... - ... -. ····--·-·----··------
-
·-~·.
~
DRAFT
Belo court observed:
,~, (JN P.tr~
-..).'~
0
"It is better to err, if err we m;~st, on
the side of generosity in the protection. of a
defendant~ s
right'fj
\
to a fair trial before an impartial jury."
."'-
.s.:o \
'7 ~\
"'"'\
;: ;
~~
654 F.2d at~
Particularly in light of the inconsequential increase in public
knowledge that would result from permitting the press to copy a
tape they will be able to see in open court and elsewhere (and
the contents of which will be disseminated in a verbatim
transcript) , the balance of factors plainly favors denying access
in this case.
c.
The Administrative Burden Of Allowing Inspection And
Copying Should Be Considered
·
In addition, as in Webbe, the Court should consider the
administrative burden to the Court of allowing the press and
public to inspect and copy the tape.
763 F.2d at 1294-95.
791 F.2d at 107; Rosenthal,
Specifically, the Court may deny access if
it finds that this procedure could impede the progress of the
trial and
dist~act
the participants from their principal mission
to administer justice fairly and expeditiously.
The Court may
also deny access if copying creates a risk of loss or damage to
the tape.
See Matter of WNYT-TV v. Moynihan, 467 N.Y.S.2d 734,
736 (A.D. l983).
The solution we propose, providing public access
through the National Archives, .would avoid any possible
administrative problems for the Court.
The Cotu·t would entrust
the Archives with a single copy of the tape, which would be shown
to the public but, by court order, neither
rerno>~ed
nor copied.
- 14 -
WJC LIBRARY PHOTOCOPY
/
�·APR-19-96 FR I 18: 52 WILLIAMS & CONNOLLY
...
"'• "• • •
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• - ..
• " •
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Additional Concerns Unique To This Case Milit~, ~
.Against Allowing U~fettered Ac::cess To The Tap'
,,
rlrJ 0\
q.\
J-f ~,
I'
The substantial danger of misuse of the Presid,ent' s
\
Rule 15 videotape also counsels against release for
Nixon, 435 U.S. at 599-603.
<.,'.S• ',
\ -
~ '!
)>
,....
!'- 1
:-0'"'-" 'I
-{J
copyi~
Motivated by these concerns, when
Presidents Ford and Carter SlJ;bmit.ted to videotaped depositions,
the courts took great care to preserve, indefinitely, the
integrity of those tapes.
~...e.
supra at l-2 i President Ford
Transcript at 14 (attached as exhibit 1)
(""the tape will not in
any way be revealed to any of the news media 11 ) ; Order in United
States v. Kidd at 2 (April 10, 1978) {attached as exhibit 2)
(
11
The video tape upon the conclusion of the taking shall be
delivered to the court, copies thereof shall not be furnished to
anyone other than the court").
Counsel .for the President believe
the optin1al means of accommodating the interest of the public in
viewing the videotape, and at the same time preserving the
dignity of the Office of the President
~nd
the integrity of this
Court's processes, is for the Court to order tha.t the videotaped
I
trial testimony be provided to the National Archives, where any
member of' the public might view the tape, but nc• one would be
permitted to copy it.
Supreme Court precedent supports according spec,ial
consideration to the unique. interests of the President in the
right-of-access inquiry.
In
Nixon v·. Warner Communications,
Inc.t 435 U.S. 5S9 (1978), audiotapes of President Nixon's
.conversations were admitted into evidence at the trial ·of his
former advisors.
The press was allowed access to the trial and
- 15 -
WJC LIBRA~Y PHOTOCOPY
�'
·APR-1 9-96 FR I 1 ......_ WILL I AMS & CONNOLLY
8: 53 -·-·
. . ·----·-· .....
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P. 17
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D·RAFT··./-"'.,<~···.~\ .
but the dJ.strJ.ctr court tf0· r =
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.
provided with transcripts of the tapes,
forbade copying.
•
•
'--S''·,
r1
i
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,.....
'
The Supreme Court did not resolve the ~ssue of
\
whether the common law right of access applied to permit
press to copy those tapes,Y but it did note the
r--.
Co' '
t~
e~istence
of
several factors, not usually present in right-of-access cases,
that apply when a President's voice (and, in this case, his
likeness and demeanor) is on the tapes.
In particular, the Court observed that public copying
·could impair the President's interest in privacy, and in the
accurate conveyance of any statements of his recollections that
might be compelled by the subpoena in this case.
If made available for commercial recordings or
broadcast by the electronic media, only fractions of
the tapes, necessarily taken out of context, could or
would be presented. Nor would there be any safeguard,
other than the taste of the marketing medium, again'st
distortion through cutting, erasing, and splicing of
tapes. There would be strong motivation to titillate
as well as to educate listeners.
435 U.S. at 601.
Perhaps more importantly, the Nixon opinion warned that
a lower court should not allow itself to be used as the
instrument for distortions by those who might obtain and misuse
the tape.
The Supreme Court emphasized:
the crucial fact that respondents require a court's
cooperation in furthering their commercial plans. The
court -- as custodian of tapes obtained by subpoena
over the opposition of a sitting President, solely to
satisfy "fundamental demands of due process of law in
~1
The Court found it unnecessary to decide the issue, because
a federal statute, the Presidential Recordings Act, defeated any
common law claim to access in that case. Nixon, 435 U.S. at 60308.
• 16 -
WJC LIBRARY PHOTOCOPY
�I
APR-19-96 FRI 18:53 WILLIAMS &CONNOLLY
···--·
.... - ·-----......... _
...
'
',_..
'
P. 18
..
DRAFT.4""~\(JN Ptr~:;.s,0
(Gv
the fair administration of criminal j'ustice -- h~s a 1}91 1n
as to
responsibility to exercise an informed
discretio~
;::r
release of the tapes, with a sensitive appreciat:i:·~on1·
of
.r::
~-oQ;
the circumstances that led to their production."
.~
.
435
u.s.
at 603.
The Court continued:
not permit copying upon demand.
"This responsibility does
'
Otherwise, there would exist a
danger that the court could become a partner in the use of,the
subpoenaed material 'to gratify private spite or promote public
scandal.'
ld;
11
{quot.ing In re Caswell, 18 R.I. 835, 836, 29 A.
259 (1893)) .
The common-law right of access to judicial records has
always been subject to the limitation that a court will not order
disclosure of a document that is likely to be used for improper
purposes, lest the court make itself complicit in the improper
acts.
In Caswell, a seminal case defining the limits of the
common
la~,.
right of access, the Rhode Island Supreme Court
discussed the court's discretion to keep documents under seal in
the context of a divorce case.
[I]t is clearly within the [common law] rule to hold
that no one has a right to examine or obtain copies of
public records . . . for the purpose of creating public
scandal. . . . The judicial records of the state
should always be accessible to the people for all
proper purposes, under reasonable restrictions as to
the time and mode of examining the same; but they
should not be used to gratify private spite or promote
public scandal. And, in the absence of any statute
regulating this matter, there ca~ be no doubt as to the
power of the court to prevent such improper use of its
records.
·
18
·R.I. 835, 29 A. 259 1 259 {1893}.
See
also~
v.
~.
320 A.2d
717, 723 (Del. Super. 1974) (adopting Caswell rule in divorce
case) .
Numerous common law decisions support the rule that a
- 17 -
WJC LIBRARY PHOTOCOPY
.
�APR-19-98 FRI 18.:?4. ~HLLIAMS & CONNOL~Y .. -·-·-· .. -·
............___ ,__,.__,____.t,J~-------·-
DRAFT ---'
·\0N Pn
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'
court may refuse access to documents on the ground that they will
e. N.
See I ~ , St,ate
be used for an improper purpose.
"'X
~
rel. \
11
~
q1
Youmans v. Owens, 28 Wis. 2d 6?2, 13? N.W.2d
modified on other grounds, 139 N.W.2d 241 (1966) (prospect of
11
undue damage 11 to a person 1 s reputation justifies refusing public
access to a document under common law balancing test); Sanford v.
Boston Herald-Traveler Corp., 318 Mass. 156, 61 N.E.2d 5, 6-7
(Mass. 1945)
(court should not allow public access to documents
containing libellous statements)
Div. 9, 48 N.Y.S.2d 355 {1944)
i
Munzer v. Blasdell, 268
( 11 shocking and
J!.~PP.
scandalous~
libellous documents are subject to seal); Flexmir v. Herman, 40
A.2d 799, 800 (N.J. Ch. 1945)
(ordering sealing of court
documents to avoid revealing trade secret manufacturing process) .
Recent cases following Nixon are to the same effect.
In f\1:okhiber
v, Davis, 537 A.2d 1100, 1115 (D.C. l9B8), the District of
Columbia Court of Appeals observed:
[C)ourts have long recognized that information of
certain kinds may be more readily closed from public
view, such as commercial and national security secrets
and information that seriously invades the privacy of
third p.::a:rties or would merely promote libel or scandal,
V.aterial that falls into one of these classes may be
screened from public access on a showing of good cause
to beli~ve disclosure would create specific harms of
the kind sought to be avoided by giving that sort of
information greater protections.
(Citations omitted.)
See also,
.§...S.,_,
Webster Groves School Dist.
v. ?ulitzer Publishing Co., 89S F.2d 13?1,
1~90}
1376w77 (8th Cir;
(public interest in access to file in disabled child court
proceeding outweighed rrby T. B. Is privacy intere.st and the state 1 s
- 18 -
WJC LIBRARY PHOTOCOPY
0(\\
~·I
f::!
�I
APR-19-96 FRI 18:54 WILLIAMS &CONNOLLY
P.20
DRAFT
~--·"'-··.
/x;..~TIAL
t., 1
'i;;0 .
'6'>?
0 interest~·~ protecting mino:rs from the public dissemination of
~ 110~ .
\~)
:)
hurtful inf rmation 11 ) .
,o
.
""'-...
. ?.:'
r~ale
he Nixon Court's concerns, in accdrdance with the
of these numerous cases applying the common law right
of accessr are fully applicable to this case.
As an incident of
his compelled testimony, the President should not be subjected to
the distortions and abuses that would necessarily result from
unrestricted copying of the videotape.
These fears are not
unfounded speculation; the President's political opponents have
already declared their intention to seek access to the tape for
the specific purpose of attacking the President.
See,
~~
Rowley, Clinton Deposition Has Critics Pondering Potential TV
Ads, Associated Press, April 1, 1996 {quoting prominent GOP "ad
man" as saying,
stand.
11 ) ;
11
I'd love to get my hands on the president on the
Means, Clinton Whitewater Testimony:
Attack Ad a
DoubleuEdged Sword, Orlando Sentinel, April 3, 1996 {"Republican
strategists are gleeful about the potential availability of a
Clinton video in which he talks about his association with the
principal figures in the complex banking and real-estate tangle
commonly referred to as Whitewater.
No matter what he says, they
envision campaign attack ads showing the president on the
defensive about a criminal matter, reinforcing his ties to
unsavory folk.
11
).
These concerns are not present for an ordinary
witness who gives live testimony; there is no reason to treat the
President's testimony with any less consideration--or to penalize
- 19 -
WJC LIBRARY PHOTOCOPY
�APR-19-98 FRI 18:55 W_!LLI~~?. & CONNQLJ.t_. __ _
P. 21
---·
.DR.AfI v"''::_\oN
..
PJ:rr::- ,
6'0\
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I
him--simply because the demands of his office require hif to
\
deliver that testimony on videotape.
\.
Moreover, the Nixon Court's admonition that a
should act with
11
Jfq1
co~
a sensitive appreciation of the circumstances
that led to [the] production" of this videotape also mandates a
prohibition on unrestricted copying.
A sitting President is
being compelled to .testify in order to effectuate the defendants'
constitutional rights to compulsory process and a fair trial.
There is simply no justification for subjecting the Chief
Executive of the United States to prejudice because he fulfills
this solemn duty.
Avoiding such ·an unfair r:esult is a proper
reason for denying unrestricted access to the videotape here.
Beckham, 789 F.2d at 410 {"The district court could not ignore
the publicity and controversy regarding the judicial
p:roceedings").
There is simply no reason for this Court to
"becom[e] a partner in the use of the subpoenaed material 'to
gratify private spite or promote public scandal.'''
"-\
<:i>
Nixon, 435
U.S. at 603.
Lodging a copy of President Clinton's videotaped trial
testimony after a verdict is reached strikes the proper balance.
We respectfully submit that this would afford public access while
preventing partisan abuse.
- 20 -
WJC LIBRARY PHOTOCOPY
1
�I
I
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: ,
I
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTtriTLE
RESTRICTION
PS
'-11f
OOl.letter
Charles Ruff to David Kendall (1 page)
602-:report
RE: Grand Jury Matter [18 O.S.C. 6] (5 pages)
' 003. l'eflSi't
B.E· Grand lucy: Matter [18 II S C. 6] (7 pages)'
03/03/1997
F3/'o(3)
QQ4. Fepafl
RE. 6Iand Jury Matter El8 lJ.S.G. 6J (6 pages}
Q3l07ll gg:z
~
04/28/1997
F31b(3)
.-Mfl997
COLLECTION:
Clinton Presidential Records
Counsel's Office
Beth Nolan
OA/Box Number: 23483
FOLDER TITLE:
Whitewater- 1997 ·
Debbie Bush
2006-0320-F
db791
RESTRICTION CODES
Presidential Records Act- (44 U.S. C. 2204(a)]
Freedom of Information Act -(5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) ofthe PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ ~elease would violate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) ofthe PRA)
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) ofthe FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
II
I
l
'
:
..
I
.. .. ; ..
-
..
.. • ""' •• '~' t!:
�. THE WHITE HOUSE
WASHINGTON
April 28, 1997
BY FACSIMILE
David E. Kendall, Esq.
725 12th Street, N.W.
Washington, D. C.
Andrew Frey, Esq.
Miriam Nemetz, Esq.
Mayer, Brown & Platt
2000 Pennsylvania Ave., N.W.
Washington, D.C. 20006
Dear Colleagues:
I really am not 'convinced that this is a wise course. Even if Starr were to agree to allow
us to assert the privilege and even if the court of appeals were to withdraw this opinion (an
unlikely event), we would be faced with a situation in which any disagreement by Starr with our
claim in a particular case would result in motion to compel and an adverse ruling either by
Judge Wright or on appeal or both.
a
Let me have your thoughts as soon as possible, since, if we are going to send this, we
should do it this afternoon.
Sincerely,
Charles F.C. Ruff
Counsel to the President
Enclosure '
WJC LIBRARY PHOTOCOPY
�I
I
·:
I
I
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTI...E
DATE
RESTRICTION
'-fCjq
001. draft
Draft Q & ARE: Attorney-Client/Work Product (3 pages)
G02. repott
Chtonotogy; ~: Lawyet ·woxkProduet E9 pages)
003.draft
RE: Talking Points RE Request for Residence Security Logs (7 pages)
02/13/1995
P5
so-o
004;memo
Draft memo from Miriam Nemetz to file; RE: Possible Assertion of
Privileges (8 pages)
02/14/1995
PS
5v t
005.memo
Stephen Neuwirth to Abner Mikva; RE: Executive Privilege (1 page)
02/06/1995
PS
StJ;J.,
006.memo
Lloyd Cutler to Sandy Berger, et al. ; RE: Meeting on Congressional
requests (2 pages)
06/09/1994
P5
S03
04/05/1995
=- 02t2El/1995
P5
P§fb(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Beth Nolan
OA/Box Number: 23484
FOLDER TITLE:
Judge's Desk File on Whitewater, (1995)
Debbie Bush
2006-0320-F
db2038
RESTRICTION CODES
Presidential Records Ad- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
PI
P2
P3
P4
b(l) National security classified information [(bXI) ofthe FOIA)
b(l) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information ((b}(4) of the FOIA)
b(6) Release would constitute a clearly nnwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
fmanclal institutions [(b)(8) ofthe FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells ((bX9) of the FOIA)
National Security Classified Information [(a)(l) ofthe PRA]
Relating to the appointment to Federal office [(aX2) ofthe PRA)
Release would violate a Federal statute [(a)(3) of the PRA)
Release would disclose trade secrets or confidential commercial or
fmancial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a· clearly unwarranted inva~ion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defmed in accordance with 44 U.S. C.
2201(3)..
RR. Document will be reviewed upon request.
t·
I
!
1
,
~
W.l ('
,
I T RQ A RY PJ.InTnf'nPX
;
!
·
· . : ·: :~~
�DRAFT 04/06/95
PRIVI LEG ED AND *"t=-t""t'QTiiNT'!:l'~l.,.,D~El'NI'ftiii'I~Mi.....,
ATTORNEY-CLIENT/WORK PRODUCT
0:
What does the $10,000 deduction for "legal and Tax Preparation "
represent?
A:
This represents payments made during 1994 for tax-deductible return
preparation costs and legal expenses.
0:
Who paid this amount?
A:
Mrs. Clinton paid this amount by checks.
0:
When was it paid?
A:
In March 1994
0:
Why were payments made only at that time?
A:
0:
What was the legal bill for 1994:
A:
The legal bills submitted to the Presidential legal Expense Trust by Williams
& Connolly for 1994 were $
and, the legal bills submitted by
Skadden, Arps, Meagher & Flom were $
·
0:
What is the total legal bill to date?
A:
On February 3, the Presidential legal Exp·ense Trust announced that bills had
been certified to it as outstanding as of December 31, 1994, for Williar:ns &
Connolly- $505,436, and for Skadden, Arps, Meagher & Flom -. $476,246.
DETERMINED TO- BE AN
ADMINISTRATIVE MARKING
INITIALS:·ffl~· .9/~~TOCOPY
Ol.ool.a-03~o--~
�. ,'\ uN Pf?t::
~~
0'0
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DRAFT 04/06/95
PRIVILEGED AND eO!WIDENW~Au 4
ATTORNEY-CLIENT/WORK PRODUCT
.
0':
-;,.
\
(
L--igq ~;
\
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\~
0:
Are the Clintons getting a free ride on their legal fees? (e.g., why are they
able to postpone payment?) Isn't that a gift, like an interest-free loan?
A:
No. As with many clients who suddenly face high legal expenses, they are
unable to pay these bills on a current basis. The firms are continuing to bill
for past as well as current legal expenses.
0:
What is the difference between the amount associated with "Legal and Tax
Preparation" and the amount associated with "Accounting"?
A:
The "Accounting" deduction of $3,000 is a payment made to the President's
Little Rock accountants for accounting work in preparing a financial
disclosure report.
0:
Why isn't there any reporting about the Clinton's legal defense fund?
A:
None is required under the tax laws.
0:
Who determined that contributions to the fund are not income to the
Clintons?
A:
The Clintons' legal and accounting advisors.
0:
Who determined that income earned by the fund is not income to the
Clintons?
A:
The trust earned no income during 1 994.
-
2 -
WJC LIBRARY PHOTOCOPY
�DRAFT 04/06/95
. PRIVILEGED AND-:::=POJA"fi'IBFWH h=
ATTORNEY-CLIENT/WORK PRODUCT
0:
What was the basis for these determinations?
A:
Legal and accounting advisors determined the contributions to the fund were
gifts, and therefore not taxable income.
·
0:
Is there a written opinion that can be made available to the press?
A:
No.
0:
Is there a precedent for the decision not to treat any of this as income?
A:
There is no specific precedent for this situation. However, under the Internal
Revenue Code and a long line of judicial precedent, donations made out of
he donors' generosity are recognized as tax free gifts.
- 3 -
WJC LIBRARY PHOTOCOPY
�'l'ALitiHG POINTS
RE REQUEST POR RESIDENCE SECURITY LOGS
•
Introduction. The President has made every effort to
cooperate with the Offlce of Independent Counsel ("OIC") .
However, the rece~t request for production of the Secret
Service iog that shows movement in and out of the First
Family's living quarters moves this inquiry to a new level
of intrusiveness and seeks a type of information that has
not been produced before. In keeping with our continued
cooperation, we are interested in working with you to see if
there is another way to provide the information you need.
•
The F-1 post log cannot be disclosed without intrUding upon
the privacy of the First Family and impeding the Secret
Service's performance of its protective function.
0
The log monitors the movement of members of the First
Family, their personal staff, and their guests·in and
out of the Residence living quarters.
o
The F-1 post is the only Secret Service guard post irt
the White House where a log is maintained. The log is
kept because of the unique security needs inside.the
living qnarters, where Secret Service agents are
normally not present.
o
'
The F-1 post logs are different from the perimeter gate
logs and alarm logs that have been provided in the
past. The gate logs and alarm logs involve the
business end of the White House; the F-1 post log
tracks arrivals and departures from the First Family's
living quarters.
o
I
By providing a record of who is in the living quarters
. at all times, the. logs facilitate the maintenance of
security by:
informing the Secret.Service guard on duty whether
the President and his family are "at home;" and.
permitting an appropriate response to a security
- 1 -
DETERMINED TO BEAN
'
ADMINISTRATIVE MARKING
INITIAIIS~fl:. f!.Jg./ri{CO PY
A Df')f,.-n~At,_.c~
�/0~
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Is- ·
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breach.
0
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The logs do not perfectly reflect movement ina~
1
of the living quarters.
o
The logs are an intrusion upon the privacy of the First
Family, which they must tolerate for their own
protection.
o
The notion of using the logs to provide third parties
with a round-the-clock chronicle of movement in and out
of the President's home, for reasons unrelated to
security, is simply offensive.
If requests such as this one were granted, those
in need of protection would resist security
procedures such as the maintenance of logs that
allow the Secret Service to perform effectively
but create opportunities for extraordinary
invasions of privacy.
•
If the logs are disclosed to the OIC, there is substantial
risk that they will ultimately be disclosed to the Congress
and to the public.
0
First, no grand j·ury is "leak-proof. n
o
Second, production of information to the OIC increases
the likelihood of Congressional demands for the same
information.
0
Finally, the Independent Counsel statute creates
additional disclosure risks. In an ordinary grand jury
proceeding, the information gathered in the
investigation normally remains confidential. Under the
Independent Counsel statute, even if there is no
indictment, the OIC must make a final report to the
Division of court "setting forth fully and completely a
description of the work of the independent counsel.''
28 u.s.c. S 594(h)(l)(B). once the OIC makes its final.
report to the Division of Court, the Division may
release to Congress, the public; or any appropriate
person any portion of the report as it considers ,
appropriate. Id. S 594(h)(2).
1
The Secret Service officers at the post do not always
enter every entry and exit onto the log, particularly when groups
of people are traveling together. Furthermore, the logs do not
account for movement via other·points of access to the living
quartets, such as the public stairway or· the service elevator.
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Estalished legal principles support protection
from disclosure.
·In United States v. Nixon, 418 u.s. 683, 707-706
(1974), the Supreme Court recognized a
constitutionally-based privilege of
confidentiality for the President's communications
with his advisors.
The privilege flows from the President's Article
II powers:
•
"Whatever the nature of the privilege of
confidentiality of Presidential
communications in the exercise of Art. II
powers, the privilege can be said to derive
froiD the supremacy of each branch within its
own assigned area of constitutional duties.
Certain powers and privileges flow from the
nature of enumerated-powers; the protection
of the confidentiality of Presidential
communications has similar underpinnings."
418 u.s·. at 705.
•
''Nowhere in the Constitution • • • is there
any explicit reference to a privilege of
confidentiality, yet to the extent this
interest relates to the effective discharge
of a President's powers, it is
constitutionally based." 418 u.s. at 711.
Although Nixon dealt with Presidential ·
communications, the principles outlined in Nixon
support the protection of confidential information
related to Presidential security. 2
2
The court in Nixon also ruled that the Special Counsel
had to make a showing of relevancy, admissibility, and
specificity before obtaining discovery in connection with a
criminal trial. 418 u.s. at 699-700. The supreme Court has
ruled, however, that the Nixon test does not·apply to subpoenas
issued in the context of a grand jury investigation. United
States v. R. Enterprises •• Inc., 498 U.S. 292 (1991). The Court
found the test inappropriate in light of the "broad brush" of
grand jury investigations, the undesirability of procedural
delays in the grand jury process, and the strict secrecy of grand
jury proceedings.
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As discussed above, disclosure of info~ tion
generated by the Secret Service in protect1~--~
the President would impair its ability to
perform its function.
·
•
For.this reason,· the Secret Service has
consistently asserted a privilege against
disclosure by Secret Service agents of
conversations they overhear in the course of
protective assignments.
•
0
That the President must be protected i'f he is
to discharge his constitutional duties.
1'
effectively is beyond dispute.·
•
~.
For the same reason, other confidential
information generated by the Secret Service
in protecting the President must be protected
from disclosure.l
Even absent a claim of executive.privilege. the
President's privacy interests weigh heavily against
production of the logs.
-
Any person may ·resist a grand jury document
The OIC may cite the Enterprises case as justification
for refusing to make a detailed showing why the F-1 post logs are
relevant to its investigation·. · The Court in Enterprises stated:
Requiring the Government to explain in too much detail
the particular reasons underlying a subpoena threatens
to compromise the indispensable secrecy of grand jury .
proceedings. Broad disclosure also affords the targets
of investigation far more information about the grand
jury's internal workings than the Federal Rules of
Criminal Procedure appear to contemplate.
Id. at 299 (citations and quotations omitted).
3
We might also argue that the privilege attaching to
Presidential communications should protect all records that
indicate when and with·whom the President meets, regardless of
their relationship to Presidential security. In Nixon, however,
"White. House daily logs and appointment records," which allowed
the Special Prosecutor "to fix the time,.place, and persons
present" at the discussions at issue, were apparently produced
without protest. 418 U.S. at 688.
·
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subpoena 4 on the ground that production ·of1: the
'1.
material sought would be "unreasonable or \
fi/
oppressive." This recognition of privacy \
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interests, even in the context of a grand. jdrv
~~
investigation, argues in favor of an accom:mod~
that would not require production of the logs.
•
Federal Rule of Criminal Procedure 17(c)
authorizes a federal district court to qUash
or modify a grand jury subpoena duces tecum
"if compliance would be unreasonable or
oppressive.". See United states.v. Calandra,
414 u.s. 338, 346 n.4 (1974).
•
"[I]f a witness can show that compliance with
the subpoena would intrude significantly on
his privacy interests, or call for the
disclosure of trade secrets or other
confidential information, 11 the court must
conduct a balancing test to determine whether
the information should be produced. United
States v. R. Enterprises, Inc., 498 u.s. 292,
305 (1991) (Stevens, J., concurring in part
and concurring in the judgment).
•
We are aware of no basis for believing that
the logs requested contain information
specifically relevant to the investigation of
the handling of documents from Foster's
office.
The President's privacy interests are entitled to
more than ordinary weight. The courts have
recognized the importance of protecting the
privacy interests even of former Presidents. The
privacy interests of a sitting President are
entitled to even greater deference because
politically motivated opponents may seek to
acquire and use confidential information to
embarrass or undermine him.
•
In Dellums v. Powell, 561 F.2d 242, 250 (D.C.
Cir. 1977), the CoUrt stated that 11 the
privacy interests of a former President must
be safeguarded." .
4
The letter from the OIC requesting production of the
logs does not·refer to the subpoena previously issued to the
White House. This may provide an opportunity to negotiate the
request informally with the OIC, without bringing the matter
before a court.
WJC LIBRARY PHOTOCOPY
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In Dellums, the plaintiffs-appedlants,
who alleged civil rights viola~ions in
conriection with the Nixon
\
Administration's response to tH
Day" demonstrations held to prot:
American military involvement in
Southeast Asia, subpoenaed tape
recordings of President Nixon's
conversations regarding the
demonstrations.
· -::p\
*
The Court found that the plaintiffs had
·· demonstrated a "very strong entitlement" .
to the tapes, stating that other
evidence suggested strongly that
conversations about the demonstrations
existed, and that evidence sought "could
constitute the most direct and central
sort of evidence for the plaintiffs'
case." · Id. at 248.
*
Nevertheless, the Court did not allow
the plaintiffs to comb through the tapes
for relevant evidence, noting that Nixon
would have to give the plaintiffs access
to any records only "if such recorded
conversations do exist." Id.
*
'1
FUrthermore, the Court found that "the
District Court erred in failing to
provide adequate protection for Mr.
Nixon's personal privacy interests in
the material subpoenaed." Id. at 249.
+
+
"If the subpoena is read • • ·• as
requiring an entire tape to be
produced if any portion of it
relates to the May Day
demonstrations, plaintiffs would be
entitled to discover all
conversations recorded on such a
day·, including those of an
· intensely personal nature -- some
of which would be subject to an
independent common law privilege."
Id. at 250. · ·
The Court ordered that a
professional government archivist
be appointed a special master to
transcribe those portions of the
tape that contained relevant
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nonpersonal information.,1 -Id~
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In Nixon v. Warner Communications J\ Inc. , 43"/5i
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U.S. 589, 602 (1978), the Supreine·Cpurt
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refused to require the district cour~ to
~~
allow reproduction of tapes of presid~ ·
conversations played in the courtroom, noting
"the danger that the court could become a
partner in the use of subpoenaed material 'to
justify public spite or promote public
scandal. ' "
·
See also Nixon v. Administrator of General
Services, 433 u.s. 425, 457 (1977) ("[P]ublic
officials, including the President, are not
wholly withoUt constitutionally protected
privacy rights in matters of personal life
unrelated to acts done by them in their
personal capacity"); Oellums v. Powell, 642
F.2d 1351, 1358 (1980) ("The claims and
objections based upon the Presidential
privilege and upon privacy • • • are entitled
to a considerable measure of deference by the
courts").
Conclusion. The overlapping interests of Presidential
security and privacy make production of the F-1 post logs
extremely problematic for the White House. In order to
avoid a litigated dispute, we propose working together to
reach an accommodation that will satisfy the OIC's
investigatory needs without making new and unprecedented
inroads on the zone of security and privacy surrounding the
First Family.
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DRAFT
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MEMORANDUM FOR THE FILE
·FROM:
SUBJECT:
Miriam R.;, Nemetz
Associate Counsel to the President
Possible Assertion of Privileges In Connection With
Subpo&·na to Bruce Lindsey
About forty of the documents responsive to the subpoena
issued by the Office of Independent Counsel ("OIC") to Bruce
Lindsey on December 8, 1994, have been withheld from production
pending· a final decision by the White House whether to assert the
privileges that apply to them. The attached draft privilege log
'briefly describes each document and identifies the privilege or
privileqes that could be claimed with respect to each. This
memorandum further describes the documents withheld and discusses
the privileges that apply to them, with particular attention to
the deliberative process and executive privileges. The
memorandum also discusses why it may be appropriate to begin
assertin9 privileges at this juncture.
I.
Deliberative Process or Executive Privilege
The only privilege that potentially applies to most of
the documents is the privilege that protects White House
deliberative communications, which may be called either the
deliberative process privilege or the executive privilege. These
documents include drafts of letters and press statements, talking
points, "Q's and A's," notes of conversations among White House
staff, and similar materials generated by White House staff while
developing responses to press reporting, qongressional inquiries,
and the independent counsel investigation regarding Whitewater.
Also among the documents withheld are a·few documents unrelated
to Whitewater that Mr. Lindsey's attorneys have deemed responsive
to the subpoena but which reflect internal deliberations
regarding Presidential appointments.
The deliberative process privilege, which is frequently
asserted by executive branch officials in civil litigation,
applies to "wrH:ten and o~al commun~cations comprised of
opinions, recommendations, or advice offered in the course of the
executive's decisionmakirig process." 1 The Court of Appeals for
the District of Columbia Circuit has stated:
1
G. Wetlaufer, "Justifying Secrecy: An Objection to the
General Deliberative Privilege, 11 65 Ind. L. J. 845 (1990); ~
also NLRB v. Sears. Roebuck & Co., 421 u.s. 132, 150 (1975).
DETERMINED TO BE AN
. ADMINISTRATIVE MARKING
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In deciding whether a document should be
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the document is "predecisional" -- whether i b." .
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was generated before the adoption of an
~
agency policy -- and whether the document is
"deliberative"-- whether it·reflects the
give-and-take of the consultative process.
The exemption thus covers recommendations,
draft documents, proposals, suggestions, and
other subjective documents which reflect .the
personal opinions of the writer rather than
the policy of the agency. o o •. To test
whether disclosure of a document is likely to
adversely affect the purposes of the
privilege, courts ask themselves whether the
document is so candid or personal in nature
that'public disclosure is likely in the
future to stifle honest and frank
.
communication within. the agency.( • • • 2 ·
The deliberative process privilege is not absolute, but may be
overcome by sufficient showing of need.
. The deliberative process privilege is closely related
to executive privilege. Some courts have used the terms
"deliberative process" privilege and "executive" privilege
interchangeably. 3 The Office of Legal Counsel of the Department
of Justice ("OLC") has generally viewed the deliberative process
privilege as a prong of the constitutionally-based executive
privilege:
·
·
Executive privilege protects material the
disclosure of which would significantly
impair the conduct of foreign relations, the
national security, or the performance of the
Executive's lawful duties. It also shields
confidential deliberative communications
which have been generated within the
executive branch from compulsory disclosure,
2
Coastal States Gas Corp. v. Department of Energy, 617
Fo2d 854, 866 (D.C. Ciro 1980).
3
See, ~' Dow Jones & co. v. Department of Justice,
917 F.2d 571, 573 (D.C. Cir. 1990) (discussing "the common law
'deliberative process' or 'executive' privilege"').
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in the absence of a strong showing of need by ,~ ',
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the branch seeking disclosure • • • • 4
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OLC has recognized, ·however, that the deliberative process~
of the executive privilege'has common law as well as
constitutional roots. For example, in an opinion addressing the
propriety of withholding certain White House and presidential
task force documents from production in a criminal proceeding,
OLC concluded that the documents were "protected by the commonlaw governmental privilege and the constitutionally-based
executive privilege for documents reflecting the deliberative
process." 5
·
._t
.
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·
Although there is precedent for treating the two
privileges as distinct, 6 as a practical matter, it appears to
make little difference which privilege -- "executive" or
"deliberative process"-- is.asserted with respect to the
documents discussed herein, with the following caveats. First,
it can be argued that presidential deliberations are entitled to
more protection than the deliberations of other executive branch
officials. 7 In United States v. Nixon, the Supreme court
4
"Confidentiality of the Attorney General's
Communications Counseling the President," 6 Op. O.L.C •. 481, 484
(1982). · See also,. ~' "Congressional Requests for Confidential
Executive .Branch Information," 13 Op. O.L.C. 185, 186 (1989)
(alluding to "at least three generally recognized components of
executive privilege: state secrets, law enforcement, and
deliberative process"); 5. Op. O.L.C. 27 (1981) (recommending
assertion of executive privilege in response to Congressional
subpoena seeking. deliberative, predecisional materials generated
by the Department of the Interior).
5
6 Op. O.L.C. 564, 565 (1982); see also 6 Op. O.L.C.
481, 490 (1982) (Exemption 5 of FOIA codifies "the traditional
common law privileges afforded certain documents in the context
of civil litigation and discovery, including the executive
'deliberative process' privilege")(citations omitted).
6
For example, in a recently filed brief, the Department
of Justice stated explicitly that it was "not asserting executive
pri."vilege" with respect to the White House and Department of.
Interior documents that it was withholding pursuant to a claim of
deliberative process privilege. See "Federal Defendants'
Opposition to SAS's Motion to Compel," Seattle Audobon Society v.
Lyons, Civ. No. C94-758WD (W.D. Wash.), Br. at 16 n.9.
(
7
Indeed, one commentator has argued that, because the
President is constitutionally distinct from other members of the
executive branch, presidential communications are entitled to
WJC LIBRARY PHOTOCOPY
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emphasized "the singularly linique role under A.:tticle II of' a
President's communications and activities, related to the
performance of duties under that Article:"
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[A] President's communications and activities
encompass a vastly wider range of sensitive
material than would be true of any 'ordinary
individual.' It is therefore necessary in
the public interest to afford Presidential
confidentiality the greatest protection
consistent with the fair administration of
justice. 8
·
Although it is no~ necessary to refer explicitly to the
"executive privilege" rather than deliberative process to invoke
this heightened protection, to decline affirmatively to assert a
constitutional basis for th·e privilege and rely exclusively on
the common law understanding of the deliberative process
privilege might weaken the privilege claim.
Second, it can be argued that the constitutionallybased executive privilege protects even non-deliberative
communications between the President and his close advisors. In
United States v. Nixon, the Supreme Court appeared to recognize a
"general privilege of confidentiality of Presidential
commuriicatio.ns in ~erformance of the President's
responsibilities."
The Court stated that "[t]he need for
confidentiality even as to idle conversations with associates
• is too obvious to call for further treatment. 1110 If any
documents that reflect direct communications with the President
greater protection than the communications of other executive
offices which are,· "at least in some respect, creatures of the
legislature." G. Wetlaufer, .supra note 1, at 901-02.
United States v. Nixon, 418 u.s. 683, 715 (1974).
Although the Nixon .case dealt with communications directly with
the President, OLC has argued that, for the privilege to apply,
"it is not essential that the communications for which the
privilege claims have been .directed to or emanated from the
President himself." 6 Op. O.L.C. 481, 489 (1982). As OLC has
noted, the Suprem.e Court in Nixon "recognized the need for the
President 'and those who assist him [to] be free to explore
·alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to
express except privately."' Id. (quoting Nixon, 418 u.s. at 708
(emphasis supplied).
.
8
. '
u.s.
9
418
10
Id. at 715 (emphasis supplied).
at 711.
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but lack the deliberative and predecisional character\\ that would ""f::.!
bring them within the deliberative process privilege are
·!' i
withheld, ~h7 executive privileg7 :r;athe:r; than the delf~(:i:-ative '""-~-oO:/
process pr1v1lege should be explJ.cJ.tly 1nvoked. 11
~
II.
Attorney-Client and Work Product Privileges
Another group of documents, which reflect
communications to, from, or among attorneys in the Counsel's
Office, are also protected by the attorney-client privilege.
Some of these documents are outlines of responses to news
articles, ••talking points, 11 and similar materials prepared by
Neil Eggleston; who was the lawyer on the White House's
11 Whitewater Team. 11
Others address more strictly 11 legal 11 matters,
such as statute of limitations questions. Several other
documents may be entitled to protection as attorney work product.
These documents are memoranda drafted by attorneys in the
Counsel's Office in connection with its preparation for
congressional hearings, during Lloyd cutler's tenure as Special
Counsel.
All of the documents described above would also qualify
for protection under the deliberative process or executive
privilege, described above. 12 However, there may be reasons for
·asserting the attorney-client or work product protection instead
of or ln addition to the deliberative process privilege. First,
unlike the deliberative process privilege, the attorney-client
privilege, wh~re it applies, is absolute. Second, in the event
the President decides to waive executive privilege generally, he
may want to draw the line at turning over documents that reveal
the legal advice and/or work product of White House lawyers. The.
President would have a compelling argument that do so would
prevent the counsel's Office from functioning, and w~uld in
essence rob the-White House of any legal representation before
Congress or the OIC.
On the other hand, we should keep in mind the
limitations of those privileges~ First, the attorney-client
privilege has been interpreted relatively narrowly in the
District of Columbia Circuit as protecting a communication from
an attorney to his client only to the extent that the
communicati.on .reveals or is based, 11 in part at least, 11 on a
'11
We do not now intend to direct that any such documents
be withheld from the Lindsey document production •.
12
See, ~, Murphy v. Dep't of the Army, 613 F.2d 1151,
1154 (D.C. Cir. 1974) (memoranda from the General Counsel of the
Army to the Secretary of the Army recommending legal strategy 11 a
classic case of the deliberative pro~ess at work 11 ) .
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confidential communication from the client to the attorn~y. 13 A
S
court could rule that some or all of the documents in qu~stion do
;:/
not reflect confid.ential client communications. Second, \h:; ~~r~-...~.'<!'-0~~
product protection normally applies to documents prepared b~
attorney in connection with litigation, or in anticipation of
·
potential litigation. 14 The availability of work product
protection for documents prepared in anticipation of
congressional hearings is uncertain.
·
·
·
III.
Relationship to Previous Policy .
The White House asserted no privileges in connection
with its response to the OIC subpoenas seeking documents relating
to contacts between White House and Treasury officials concerning
the RTCis Whitewater activities and the activities of the White
House staff in connection with the. Foster suicide. (We have
withheld, but without explicit assertions of privilege, documents
·generated by the Counsel's Office in preparation for
congressional hearings.) In connection with those phases of the
OIC·investigation, the President has frequently expressed his
intention to cooperate fully with the OIC and has noted, as
evidence of his cooperation, his waiver of executive privilege in
those contexts. 15 I am aware of no statement by the President,
13
See In re Sealed case, 737 F.2d 94, 99. (D.C. Cir. 1984)
(emphasis in original); Coastal states Gas Corp., 617 F.2d at 862
(attorney-client privilege protects documents generated by
attorneys that may reveal "information which the client has
previously confided to the attorney's trust); Mead Data Central.
Inc. v. United states Dept. of Air Force, 566 F.2d 242 (D.C. Cir.
1977) (attorney-client privilege applicable to communications
from attorney to client "based on confidential information
provided by the client").
14
See Hickman v. Taylor, 329 u.s. 495, 509-510 (1947).
1S
The President has made the following statements.on the
issue of assertion of privilege. On March 7, 1994, during a
press conference, the President was asked a series of questions
regarding the issue of White House-Treasury contacts regarding
Whitewater.·. The President noted his intention to cooperate fully
with the special counsel's subpoenas relating to the matter.
Later, he was asked whether, as part of his commitment to
cooperate, he would instruct his staff not to assert any
privileges. The President replied, "I can't answer any of those
questions because I haven't even thought about it." Transcript
of Press Conference by President Clinton and Chairman
·
Shevardnadze (3/7/94).
The following day, in the press conference announcing the
appointment of Lloyd Cutler as Special Counsel, the President was
WJC. LIBRARY PHOTOCOPY
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however, that he would never assert appropriate
asked:
To follow up on a statement that came up yesterday that
perhaps you've had a chance to discuss with ~. cutler
-- have you decided whether you're going to be able to
-- invoking executive privilege and the lawyer-client
relationship in response to all these inquiries?
The President responded:
• • • (O]bviously, I have ·no way of knowing what will
come up. But it is hard for me to imagine a case·in
which I would invoke it. In other words -- again, I
can't imagine everything that -- it's difficult for me
--I thought about it·a little bit, and we've talked
about it a little bit. My interest is to get the facts
out, fix the procedures for the future, get the facts
out about what was known here and what happened, and
cooperate with the special counsel. so·I can't-- 'it's
hard for me to imagine a circUmstance in,which that
would be an appropriate thing for me·to do.·
Transcript of Remarks by the President in Appointment of Lloyd
Cutler for Special Counsel to the President (3/8/94) (emphasis
added). The President's answer was clearly directed to the issue
of White House-Treasury contacts, which was the focus of
attention at the time.
When turning over doc~ents relating to the contacts issue
in March 1994, Joel Klein noted that no documents were being
withheld under a claim of attorney-client or executive privilege.
The Washington Post (3/11/94). Later, the President also noted
that he had not asserted any privileges. In a press conference
on April 5, 1994, the President stated:
[T]he Watergate special counsel, Sam Dash • • • said,
Bill Clinton's not like previous administrations; they
haven't stonewalled, they've given up all the
information. Every time there's a subpoena they
quickly comply. Jive claimed no executive privilege;
I've looked for no procedural ways to get around this.
I say, you tell me what you want to know, I'll give you
the information. I have done everything I could to be
open and above board.
Transcript of President Ciinton's Remarks in April 5 Event in
Charlotte, N.c. (4/6/94).
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response to an OIC document request.
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There are important differences between the documents
eo':::/
previously produced to the OIC and those sought by the su~poena.~~~~
to Mr. Lindsey that easily justify the assertion of privii1!q~
now. The documents subpoenaed from the White House in connection
with the Foster and the contacts. issues were generated by White
House officials whose conduct. as White House officials was being
examined, and were created roughly contemporaneously with the
conduct under investigation. In contrast, the current subpoena
focuses on pre-inaugural events. The documents we now propose to
withhold reflect only the White House's internal efforts to
respond to the scrutiny of these past events, and thus are only
"secondary sources" of information relevant to that inquiry. Any
relevant information contained in the documents is more reliably
and appropriately obtained elsewhere. The OIC's need for these
documents is therefore minimal, and does not override the strong
interests of the Presidency in maintaining the confidentiality of
such internal White House documents.
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
February 6, 1995
MEMORANDUM
"FOR ABNER J. MIKVA
COUNSEL TO THE PRESIDENT
NEUWIRT~
FROM:.
STEPHEN R.
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
EXECUTIVE PRIVILEGE
A federal district judge recently upheld a formal claim of
privilege by the Clinton Administration with respect to documents
reflecting communications between·the White House and executive
branch agencies.
Private plaintiffs had sought those documents in the
"spotted owl" litigation in Washington state, before Judge
William Dwyer. Those documents addressed development of the
Administration's plan for the Northwest .forests.
·
This past summer, Lloyd and I strongly encouraged th~
Justice Department to assert some form of "executive privilege"
in the litigation. At the time, the White House had withheld
from two Congressional committees similar types of documents
reflecting White House-agency communications.
The Justice Department asserted both the "deliberative
process" privilege and, where appropriate, the attorney-client
and work product privileges. The Department preferred not to use
the term "executive privilege" for two reasons. First, OLC has
traditionally taken the position that the deliberative process
privilege -- like the attorney client or work product privilege
-- is a species of executive privilege. Second, the attorneys
handling the litigation (including Lois Schiffer) felt that the
term "executive privilege" might gene~ate a negative political
reaction in the communities affected by the Administration's
forest plan.
As you will see in the attached opinion, Judge Dwyer chose
not to reach attorney-client or work product claims once he
determined that the documents were privileged on deliberative
process grounds. The Justice Department's brief on these issues
is also attached .
. Attachments
WJC LIBRARY PHOTOCOPY
�June 9, 1994
MEMORANDUM FOR SANDY BERGER
SUSAN :BROPHY
SALLY KATZEN
BRUCE LINDSEY
SYLVIA MATHEWS
KATIE McGINTY
JACK QUINN
· CAROL RASCO
ROBERT RUBIN
FROM:
LLOYD CUTLER
STEPHEN NEUWIRTH
SUBJECT:
3:00 p.m. meeting today on Congressional
requests for information concerning the
White House role in agency rulemaking
The purposes of today's meeting are (1) t~ review-the
Administration's policy on the confidentiality of discussions
between the White House and Executive Branch agencies on
rulemaking and regulatory issues; and (2) to determine what
action, if any, the White House should take in response to a
written request to EPA from Senator Baucus seeking detailed
information on the National Economic Council and its role in any
EPA rulemaking, regulatory or policy matters since the start of
the Administration.
Background
As you know, Senator Baucus, Chairman of the senate
committee on Environment and Public Works, has been investigating
EPA's promulgation of rules for compliance with statutory re~
formulated· gasoline (RFG) standards under the Clean Air Act. In
May, the Senator sent to the White House written requests for
information concerning what role, if any, the National Economic
Council played in EPA's rulemaking process (including what
contacts the White House had.on the RFG issue with the Government
of Venezuela and the Venezuelan oil company, PDVSA).
The White House provided Senator Baucus with comprehensive
information on the involvement of NEC and other White House staff
on the RFG issue, as well as information about the involvement of
other offices in the Executive Office of the President (NSC, OMB
and USTR). We explained that this information was subject to
claims of.executive privilege, but was being provided in a spirit
of cooperation.
WJC LIBRARY PHOTOCOPY
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The White House also provided a description of the NEC's
g'i
coordinating role in the Executive Branch. But we d~clined to
~
provide a list, requested by Senator Baucus, of all EPA
regulatory issues, during the period February 1993 .to '·~e
.~-o:J
present, ·in which the NEC was involved and the dates an~
participants of all meetings involving NEC that included
discussions of EPA regulatory issues. We explained our view that
this broad and extremely burdensome request is not appropriate in
relation to the matter under investigation, and is totally
unrelated to the RFG issue.
·;-i
Senator Baucus has now directed a new set of broad requests
,to EPA, seeking comprehensive inf'ormation on the relationship
between the NEC and EPA since the start of the Administration.
Senator Baucus now requests production by EPA of:
complete and unredacted copies of all correspondence,
memoranda, reports, or notes received by EPA from the
NEC;
a list of all NEC meetings attended by EPA staff during
which matters involving EPA were discussed, including
the dates, EPA staff in attendance, and the subject of
the discussion; and
complete and unredacted copies of all notes, minutes,
memoranda, reports, or correspondence prepared by EPA
personnel pertaining to NEC meetings.
The approach taken by the Administration in responding to
this request will set a precedent that could have broad
ramifications for other policy councils in the White House.
We have attached copies of the White House correspondence
with Senator Baucus, as well as Senator Baucus 1 most recent
request to EPA. The White House responses to Senator Baucus
should be treated as confidential and should not be distributed.
2
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
OOl.letter
lloyd Cutler to Max Baucus; RE: National Economic Council (NEC)
(7 pages)
05/12/1994
P5
So4
002.letter
lloyd Cutler to Max Baucus; RE: Environmental Protection Agency
(3 pages)
06/0111994
P5
sos
003.letter
Lloyd .Cutler to Max Baucus; RE: National Economic Council (NEC)
(4 pages)
06/1711994
P5
So4?
004.letter
Gary S. Cuzy to David Finnegan; RE: Environmental Protection
06/17/1994
P5
50!+-
Agency (EPA) (2 pages)
005.letter
Abner J. Mikva to Reid P.F. Stuntz; RE: Environmental Protection
Agency (EPA) (2 pages)
12/21/1994
P5
50~
006. talking points
RE: Legal Team (2 pages)
12/13/1994
P5
soq
007. draft
RE: Whitewater Team (2 pages)
01/20/1995
P5
(5/0
008. draft
Draft Q&A's RE: Attorney-Client/ Work Product (1 page)
n.d.
P5
SL
009. draft
Draft Q&A's RE: Attorney-Client/Work Product (3 pages)
04/06/1995
P5
Sl~
010. draft
Recommendations; RE: Interagency Criminal Referral Form (7 pages)
12/01/1994
P5
SJ3
011. meino
Jane Sherburne to the File; RE: Meeting with Independent Counsel (3
pages)
02/20/1995
P5
51~
012. list
RE: Task List (12 pages)
12/13/1994
P5
S:tS
J
COLLECTION:
Clinton Presidential Records
Counsel's Office
Beth Nolan
OA/Box Number: 23484
FOLDER TITLE:
Judge's Desk File on Whitewater, (1995) [2]
Debbie Bush
2006-0320-F
db2039
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a)]
Freedom of Information Act- [S U.S.C. S52(b)]
PI National Secnrity Classified Information [(a)(l) of the PRAJ
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statnte ((a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA]
P6 Release would constitnte a i:learly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National secnrity classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statnte [(b)(3) ofthe FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitnte a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
b(8) Release would disclose information concerning the regulation of
fmancial institntions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
WJC LIBRARY PHOTOCOPY
�THE WHITE HOIJS E
WASHif\jGTON
May 12 '· 1994
Honorable Max Baucus
Chairman
Committee on Environment and Public Works
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This letter responds to your letter to Robert Rubin, dated
April 28, 1994, concerning what role, if any, the National
Economic Council (NEC) played with respect to the Environmental
Protection Agency's promulgation in December 1993 of a final rule
on reformulated gasoline.
As an initial matter, it should be noted that the NEC is a
Cabinet-level council established by President Clinton pursuant
to Executive Order 12835 (January 25, 1993). The membership
includes the President; the Vice President; the Secretaries of
State, the Treasury, Defense, Agriculture, Commerce, Labor,
Housing and Urban Development, Transportation and Energy; the
Administrator of EPA; the Administrator of the Small Business
Administration; the Chair of the Council of Economic Advisers;
the Director of the Office of Management and Budget; .the United
States Trade Representative; the Assistants to the President for
Economic Policy and Domestic Policy; the National Security
Adviser; and the Assistant to the President for Science and
Technology Policy.
The principal functions of the NEC are to coordinate the
economic policy-making process with respect to domestic and
international economic issues; to coordinate economic policy
advice to the President; to ensure that economic policy decisions.
and programs are consistent with the President's stated goals;
and to monitor implementation of the President's economic policy
agenda.
Pursuant to Executive Order 12835, the NEC staff is a White
House staff group headed by the Assistant to the President for
Economic Policy. The.· staff is responsible for carrying out the
day~to-day tasks involved in coordination and integration of
Administration economic policy ..
In responding to your letter, we first:~et forth a skeletal
chronology of events bearing on the questions in your April 28
letter, and then provide answers to those questions. The
;,
WJC LIBRARY PHOTOCOPY
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information below is subject to claims of executive privilege, t::.b'l ~\
but is provided in a spirit of cooperation. In providing this .'_) "1 r-)
information, we do not waive any such claims of executiv~:, ~6;.1
privilege and reserve the right to assert such claims in t·h:e
~.-:0~
future.
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In 1991, 1992 and 1993, EPA promulgated several proposed
versions of a rule on compliance with statutory reformulated
gasoline (RFG) standards. We understand that during the fall of
· 1992 and during 1993, EPA officials held a series of meetings
including meetings with representatives of Petroleos de Venezuela ·
(PDVSA), the Government of Venezuela, domestic refiners and
officials of other agencies -- to discuss the proposed rule. We
understand that officials of the State Department and the United
States Trade Representativeparticipated in discussions on the
RFG issue ·with representatives of Venezuela and PDVSA during this
p~i~.
.
At the request of the Ambassador of Venezuela, w. Bowman
cutter, Deputy Assistant to .. the President for Economic Policy and
a principal point of contact in the White House for international
economic policy issues, met on December 6, 1993, with. the
Ambassador and two other Venezuelan government officials, and
Venezuela registered its conqerns -- including potential claims
under the General Agreement on Tariffs and Trade (GATT) -regarding the RFG issue.
on December 13, 1993, Sally Katzen, Administrator of OMB's
Office of Information and Regulatory Affairs, met with
representatives of PDVSA and discussed the Venezuela RFG issue.
On December 14, 1993, Mr. cutter convened a meeting composed
largely of deputy level officials todiscuss the Venezuela RFG
issue. The RFG rule under consideration by EPA im.plicated
international economic and trade issues of concern to the
Department of State and the United States Trade Representative
(USTR). The purpose of this December 14 meeting was to allow an
airing. of issues arising from the different perspectives of the
interested agencies. EPA reported that a court-ordered deadline
of December 15, 1993, for promulgating a final rule would
preclude·resolution of theVenezuela RFG issue before the final
RFG rule would be promulgated, but that EPA wanted to continue to
meet with officials from V~nezuela after the rule was
promulgated. It was agreed that the state Department.would
advise Venezuela officials that EPA wanted to continue
discussions notwithstanding the issuance of a final rule.
·on December 15, 1993, EPA announced the promulgation of a
final RFG rule. At the press conference announcing the rule, an
EPA official noted that EPA was still considering the Venezuela
RFG issue and would continue discussions with PDVSA.
2
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On January 14, 1994, the Venezuelan government reahested
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formal consultations on the December 15 final rule purs~ant to
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Article XXII of the GATT. Venezuela claimed that the fi al rule ~~
constituted discrimination in violation of GATT, because
did -~
not allow foreign refiners to establish individual.baselin~s,
domestic refiners are allowed.
During February and March 1993, officials of EPA, USTR and
the State Department continued discussions on th'e RFG issue with
the Venezuelans, including a consultation pursuant to Article
XXII of the GATT. This consultation was a normal procedure
required by the GATT following a formal request from the
Government of Venezuela. .
·
Mr. Cutter called for an interagency meeting on the RFG
issue to be held ·on March 14, 1994, to allow for a report on the
status of EPA's continued discussions with the Venezuelans, and
to provide an opportunity for airing issues with respect to steps
EPA might take in response to those discussions. Mr. Cutter was
unable to attend this meeting, and the meeting was chaired by Ms.
Katzen of OIRA.
Ms. Katzen convened two additional follow-up interagency
meetings, and one interagency telephone conference call, on the
RFG issue during March and .April of 1994. These meetings also
addressed informal inquiries from Congressional offices regarding
the Venezuela RFG issue.
·
On April 22, 1994, EPA promulgated a proposed RFG rule that·
would revise the final rule of D~cember 15, 1993.
The NEC as a body of principals never met to discuss the
Venezuela RFG issue. Asnoted, certain members of the NEC staff
were involved 1n interagency meetings on the issue, meetings
convened for the purpose of airing and coordinating the various
agency perspectives on a matter that implicated national and
international economic and trade concerns and involved a foreign
·government.
Set forth below.are the specific answers to the numbered
questions in your April 28 letter.
1.
Five members of the NEC staff have worked on the
Venezuela reformulated gas (RFG) rule issue: Robert E. Rubin,
Assis~ant to the President for Economic Policy;
w. Bowman
Cutter, Deputy Assistant to the President for Economic Policy;
Heather Ross, Special Assistant to the President; Sylvia Mathews,
Special Assistant to Mr. Rubin; and Holly Hammonds, formerly
Director to the _NEC and the National Security Council.
2.
The NEC as a body .of principals never met to discuss
the Venezuela RFG issue. Members of the NEC staff participated
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in meetings as follows~ according to the best recolle¢tions of
those involved:
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. A group composed larg7lY of deputy lev71 officials\met to ~-o~~~
discuss the Venezuela RFG ~ssue on the even~ng of Decemb~~
1993, in Room 231 of the Old Executive Office Building. The RFG ·
rule under consideration by EPA implicated international economic
and trade 1ssues of concern to the Department of State and the
United States Trade Representative (USTR). The purpose of the
December 14 meeting was to allow an airing of issues arising from
the different perspectives of the interested agencies. Those
attending the meeting were: Carol Browner, Administrator of EPA;
Michael Vanderberg, Chief of Staff to the Administrator of EPA; ·
Richard Wilson, Director for Mobile Sources, Air & Radiation,
EPA; w. Bowman Cutter, Deputy Assistant to the President for
Economic Policy; Heather Ross, Special Assistant to the President
for Economic Policy; Samuel (Sandy) Berger, Deputy Assistant to
the President for National Security; Sally Katzen, Administrator,
OMB Office of Information and Regulatory Affairs; Joan Spero,
Under Secretary of State for Economic and Agricultural Affairs;
Ambassador Alexander Watson, Bureau of Inter-American Affairs,
Department of State; and Ambassador Charlene Barshefsky, Deputy
United States Trade Representative.
EPA continued discussions with the Venezuelans on the RFG
issue after December 15, 1993. Mr. cutter called for an
interagency meeting to be held on March 14, 1994, to allow for a
report by EPA on the status of EPA's continued discussions with
the Venezuelans, and to provide an opportunity for airing issues
with respect to steps EPA might take in response to those
discussions, as well as the timing of any response to the
Venezuelans. While this meeting did take place on March 14 in
Room 180 of the Old Executive Office Building, Mr. Cutter was
unable to attend, and the meeting was chaired by Sally Katzen,
Administrator of OIRA. Holly Hammonds and·Heather Ross of the
NEC staff attended this March 14, 1994 ~eeting. Other attendees
included Mary Nichols, Assistant Administrator, Air & Radiation,
EPA; Mary Smith, Director of Field Operations & Support, Air &
Radiation, EPA; Richard Wilson, Director for Mobile sources, Air
& Radiation, EPA; Joan Spero, Under Secretary of State for
Economic and Agricultural Affairs; Edward Casey, Deputy Assistant
Secretary of State for the Bureau of Inter-American Affairs; Kyle
Simpson, Executive Assistant, Office of the Deputy Secretary of
Energy; Wesley Warren, Associate Director, White House Office of
Environmental Policy; Eileen Clausen, Special Assistant to the
President for Global and Environmental Affairs, National Security
council; .Bruce Lindsey, Assistant to the President and Senior
Advisor; Barbara Chow, Special Assistant to the President for
Legislative Affairs; Ambassador Charlene Barshefsky, Deputy
United States Trade Representative; and Daniel Brinza, Senior
Advisor and Special Counsel for Natural Resources, USTR.
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WJC LIBRARY PHOTOCOPY
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After March 14, 1994, Ms. Katzen of OIRA convened two
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interagency meetings for agency representatives and Whit.e House
''
staff at which the Venezuela RFG issue, including -inquir~es on . · !;;!
the matter from Congressional offices, was discussed. Of\.~ ~~.::c, .
meeting was held in Ms. Katzen's office, Room 350 of the Ci
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Executive Office Building; the second meeting was held in Roo
·
180 of the OEOB. Sylvia Mathews attended both of these meetings
for the NEC; Heather Ross Of the NEC attended the second of these
meetings.
Ms. Katzen also chaired an interagency telephone conference
call on the Venezuela RFG issue on April 20, 1994. Robert Rubin,
Heather Ross arid Sylvia Mathews of the NEC each participated in
this telephone· conference call.
3.
At the request of the Ambassador of Venezuela, Mr.
cutter met on December 6, 1993, with the Ambassador, the Economic
Counselor of t·he Embassy of Venezuela, and the Minister of Energy
of the Government of Venezuela. The Ambassador requested the
meeting so that Venezuela could register its concern regarding
the reformulated gasoline. issue.
At the meeting, the Ambassador described Venezuela's point
of view regarding the issue. In particular, the Venezuelans
argued that if EPA were to adopt a rule that would not allow
foreign refiners to establish individual baselines, as domestic
refiners would be allowed, this would amount to discrimination in
violation ·of the GATT.
·
·Mr. cutter asked at the meeting whether the Department of
State and EPA were aware of the nature of Venezuela's concern.
Mr. Cutter was told that the Venezuelans had been in frequent
contact with both agencies throughout much of 1993 and that both
agencies were-well aware of the issue. Mr. Cutter thanked the
·Ambassador for providing this information and concluded the
meeting.
This December 6 meeting was
addition to his responsibilities
staff, Mr. Cutter has functioned
a principal point of ~ontact for
issues.
in no respects unusual. In
as day-to~day manager of the NEC
within the White House staff as
international economic policy
Neither Mr. cutter nor other members of the NEC staff
attended any other meetings with Venezuelan government officials .
or representatives of PDVSA concerning the Venezuela RFG issue.
We understand, however, that representatives of Venezuela did
meet regarding this issue with officials of various agencies of
the United States Government.
·
4.
Sally Katzen of OIRA met with representatives of PDVSA
on December 13, 1993, and discussed the Venezuela RFG issue.
5
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�OIRA is an office within OMB, which
Executive Office of the President.
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. Since February 1, 1993, members of the staff of th~, United 0
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states Trade Representative, also a·· separate entity with.:th-the :Y
Executive Office of the President, met with representative~
the Venezuelan Government .and PDVSA and discussed the Venezuela
RFG issue on several occasions. On April 23, 1993,
representatives of the Venezuelan government raised the RFG issue
with USTR staff at a U.S.-Venezuela Trade and Investment Council
Meeting; the issue had not been formally on the meeting agenda.
During November 1993, a member of the USTR staff attended a
~eeting between EPA officials and representatives of PDVSA at
which the RFG issue was discussed. On December 10, 1993, USTR
staff discussed the RFG issue with Venezuelan Energy Minister
Parr.a and Ambassador Sosa, Emissary of the Venezuelan Presidentelect. on February 11, 1994, members of the USTR staff, as well
as officials of the State Department and EPA, participated in a
consultation with the Government of Venezuela, pursuant to
Article XXII of the GATT, on the RFG issue. And on March 11,
1994, representatives of the Venezuelan government met with USTR
staff to discuss Venezuela's position on the issue.
One member of the National Security Council staff met on a
number of occasions with representatives of the Government of
· Venezuela, and on one occasion with representatives of PDVSA,
during 1993 and 1994, where, among other issues, the Venezuela
RFG issue was raised.
To our knowledge, no members of the staff of the White House
Office other than Mr. Cutter met with representatives of the
Venezuelan government or PDVSA regarding the Venezuela RFG issue.
Several members of the White House Office staff did participate
in meetings at which the Venezuela RFG issue was discussed.
5.
The purpose and mission of the NEC includes, as noted
above, coordinating and integrating the development of national
and international economic policy for the President. A
significant aspect of this mission is to assist in the
coordination of different perspectives that emerge as agencies of
the Executive Branch pursue their particular missions. In the
case of the Venezuela RFG issue, it became clear that an action
contemplated by .EPA would implicate international economic and
trqde issues involving a foreign government -- including an ·
asserted violation of the GATT -- of concern both to the
Department of state and the United States Trade Representative.
The role and responsibility of the NEC in this instance was to
coordinate among the agencies involved so that.there could be an
airing of issues. It was for this purpose that the meetings of
December 14, 1993, and March 14, 1994, were held.
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WJC LIBRARY PHOTOCOPY
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At the December 14, 1993 meeting, EPA reported that
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there had been discussions between EPA and officials fr6m
to''
Venezuela and PDVSA, that the December 15, 1993 deadline \tor .
.,.~-<>/
promulgating a final rule precluded resolution of the Ven~
RFG issue before the final RFG rule would be promulgated, and
that EPA wanted to continue to meet with the Venezuelans after
the rule was promulgated. At the meeting, it was agreed that the
state Department would inform Venezuelan officials that EPA
wanted to continue discussions with the Venezuelans
notwithstanding the issuance of a final rule. The NEC did _not
itself make any decision regarding these continued discussions.
7.
The Venezuelan RFG issue was a specific instance of
interagency coordination by the NEC staff where action by an
agency implicated.international economic and trade concerns, in
this case involving a foreign government. The NEC typically is
involved in issues requiring resolution of, or the development of
a process for r~solving, differences o.f perspective among
different agencies. such coordination necessarily covers the
full spectrum of policy development, including Presidential
. decisions and initiatives, regulatory process, and legislative
development. The NEC and the NEC ..staff have carried out
coordinating activities across this full spectrum, and many of
the issues addressed have involved EPA -- the Administrator of
which is a member of the NEC _..;. because of that agency's
important involvement in issues that have a significant economic
dimension.
·
* * *
As you know, this Administration has been committed to
ensuring a coordinated economic policy, and has given particular
focus to the complex intersection of trade and environmental
issues. The Administration believes firmly that a strong
environmental policy is good economic policy, and looks forward
to working with you and other members of Congress to realize that
vision.
Sincerely,
Lloy~er fJ C-~.
Special Counsel to the President
7
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
June 1, 1994
Honorable Max Baucus
Chairman
Committee on Environment and Public Works
United States S~nate
Washington, D.C. 20510
Dear Mr. Cha'irman:
I have received your letter of May 17, 1994, in which you
have set forth additional questions concerning the Environmental
Protection Agency's rule on reformulated·gasoline (RFG).
As you know, my letter of May 12, 1994, explained that the
National Economic Council as a body of principals never
considered the Venezuela RFG issue. That letter also set forth
that certain members of the NEC staff were involved in
interagency meetings on ·the Venezuela RFG issue, meetings
convened for the purpose of airing and coordinating the various
agency perspectives on a matter that implicated international
economic and trade concerns and involved a foreign government.
As I noted, this Administration has given particular focus to the
complex intersection of environmental and trade issues, and
believes firmly that a strong environmental policy is good
economic policy.
set forth below are specific answers to the numbered
questions in your May 17 letter.
1.
We have attempted to provide you with accurate and
complete information on the Venezuela RFG issue, including, amonq
other things, information on any meetings on that issue involving
members 'of the NEC staff and EPA. As explained in my letter of
May 12, the Venezuela RFG issue was a specific instance of
interagency coordination by the NEC staff where action by an
agency implicated international economic and trade concerns.
You have also requested a complete list of all EPA
regulatory issues in which the NEC was involved from February 1,
1993 to the present, and the dates of and participants ·in all
meetings during that period that invol~ed the NEC and included
discussions of EPA regulatory issues. We do not believe this
broad and extremely burdensome request is appropriate in relation
to the particular matter you are reviewing, and it is totally
unrelated to the Venezuela RFG issue.
WJC LIBRARY PHOTOCOPY
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As set forth in my letter of May 12, W. Bo~an Cutter
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of the NEC convened a meeting on December 14, 1993, c<;>mposed
rlarg~ly of deputy level officials, to discu~s the Vene~uela RFG ~,
issue. The purpose of the December 14 meet1ng was to a~low an ~~
airing of issues arising from the different perspectives
the~ ·
interested agencies. EPA reported that the Venezuela RFG issue
could not be .resolved prior to the court-ordered deadline of
December 15; 1993, for promulgating a final rule. EPA also
reported that it wanted to continue to meet with officials from
Venezuela to continue discussions on the RFG issue after the
final rule was promulgated.
As I exp~ained in my May 12 letter, it was agreed at the
December 14 meeting that the ·state Department would advise
Venezuelan officials that EPA wanted to continue discussions
notwithstanding the issuance of a final rule. It is a normal
role of the State Department to communicate messages from the
United States government to foreign officials~ It was necessary
to advise Venezuelan officials that EPA wanted to continue
discussions because without such advice, the Venezuelan officials
might construe the issuance of the final rule as the end of the
matter. Among the issues that EPA wanted to continue to discuss
with Venezuelan officials were those relating to monitoring and
enforcement of individual baselines, issues that were necessary
to resolve before the final rule promulgated on December 15 could
be modified. As set forth in my letter of May 12, EPA announced
on December 15 the promulgation of the final rule. At the press
conference announcing the rule, an EPA official noted that EPA
was still considering the Venezuela RFG issue and would continue
discussions ~ith PDVSA.
3.
As set forth in my letter of May 12, one member of the
National Security Council staff, the Special Assistant to the
President and Senior Director for Inter-American Affairs, Richard
Feinberg, met on a number of occasions during 1993 and 1994 with
representatives of the Government of Venezuela, and on one
occasion with representatives of PDVSA, where, among other
issues, the Venezuela RFG issue was raised. As a Senior
Director, Mr. Feinberg meets frequently with officials
representing the Government of Venezuela as well as other. Latin
American countries. ·
In the context of a December 1993 visit to Venezuela to
express United States support for the upcoming democratic
elections, Mr. Feinberg met with Venezuelan Minister of Energy
Parra to discuss the Venezuela RFG issue. Mr. Parra indicated
.that the RFG issue had become a national issue in Venezuela and
raised trade concerns that could give rise to a GATT challenge.
Mr. Feinberg listened to the Venezuelan Government's concerns
about the international implications of·the RFG issue and
indicated that he would study the problem when he returned to
Washington. During.this same trip, Mr. Feinberg was briefed on
2
WJC LIBRARY.PHOTOCOPY
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the general Venezuelan economic picture by Venezuelanrofficials
~~
and industry representatives, including representatives of PDVSA. ~
These PDVSA representatives took the opportunity to ra\~s~e:'
the RFG:-OQi
issue _with Mr. Feinberg.
\
, Y>-<o. ..
.
.
'
Venezuelan government officials raised the RFG issue with
Mr. Feinberg on other occasions, as they would other matters of
importance to United states-Venezuelan relations. This occurred,
for example, when a Venezuelan delegation visited Washington at
some time after Mr. Feinberg's December 1993 trip to Venezuela •.
Consistent with his responsibilities, Mr. Feinberg recalls that
he reported on the international implications of the RFG issue to
the Deputy Assistant to the President for National Security •.
4.
As set forth in my letter of May 12, the meetings
addressing the Venezuela RFG issue on December 14, 1993 and March
14, 19~4, were not meetitigs of the NEC as a body of principals,
though members of the NEC staff did attend both meetings. No NEC
minutes were created for either of those meetings.
* * *
The information provided above, like the information in my
letter of May 12, is subject to claims of executive privilege,
but is provided in a spirit of cooperation. In providing this
information, we do not waive any such claims o£ executive
privilege and reserve the right to assert such claims in the
future.
Sincerely,
Llo~le;7~~
Special Counsel to the President
3
WJC LIBRARY PHOTOCOPY
�June 17, 1994
Honorable Max Baucus
Chairman·
Committee on Environment and Public Works
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
I have reviewed your letter to me, dated June 9, 1994,
seeking additional information about the involvement of the
National Economic Council in EPA regulatory matters other than
the Venezuela RFG issue, from February 1993 to the present. I
have also reviewed your letter to EPA Administrator Browner,
dated May 24, 1994, seeking broad categories of information
relating to meetings of the NEC, and communications between the
EPA and the NEC, from January 1993 to the present.
We continue to believe that these broad requests to the
··White House and the EPA raise questions.of executive privilege,
go well beyond the particular matters you are reviewing, and are
extremely burdensome to comply with. However, in an effort to
cooperate with your Committee, we set forth below a list of
· issues giving rise to communications between the NEC and the EPA
from January 25, 1993, to the present. This information is
provided in response both to your June 9 letter to me and the
first three questions of your May 24 letter to Administrator
Browner.
As you ·know, the NEC is a Cabinet-level council established
by President Clinton pursuant to Executive Order .12835 (January
25, +993). The President and Vice President are both members of
the Council, as is the Administrator of the EPA, an Executive
Branch agency. The principal functions of the NEC, as set forth
in Executive Order 12835, are to cqordinate the economic policymaking process with respect to domestic and international
economic issues; to coordinate economic policy advice to the
President; to ensure that economic policy decisions and programs
are consistent with the President's stated goals; and to monitor
implementation of the President's economic policy agenda. The
NEC staff is a White House staff group headed by the Assistant to
the President for Economic Policy. The staff is responsible for
carrying out the day-to-day tasks involved in coordinating and
integrating Administration economic policy.
The Venezuelan RFG issue was a specific instance of
interagency coordination by the NEC staff where proposed action
by an agency raised international economic and trade concerns, in
WJC LIBRARY PHOTOCOPY
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this case involving a foreign government and a major mu&tilateral
treaty to which the United states is a party. The NEC ~s also
~.
involved in issues requiring resolution of differences d<~·
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perspective among different agencies, each with a single ission,~~
of its own. The NEC and the NEC staff have carried out
·
coordinating activities across this full spectrum, including the
EPA, because of the economic as well as the environmental policy
implications of that agency's major mission.
In fulfilling these duties since February 1993, the NEC
staff has worked with the EPA on many issues. To the best of our
knowledge, these include:.
• Superfund;
• the Clean Water Act;
• the Safe Drinking Water Act;
• the Food Safety Act (including new legislation on
pesticides);
• the BTU tax;
• Clean Air Act
General Conformity;
• Clean Air Act
Reformulated Gasoline;
• the 1993 Earth Day Executive Orders (the Executive Order
.on recycling and the Executive Order on Environmental
Justice);
• Risk Assessment Principles;
• the Climate Change Action Plan;
• the Climate Change Post-2000 Strategy;
• Oil and Gas Incentives;
• issues relating to NAFTA;
• issues relating to trade and the environment;
• the Northwest Economic Adjustment
Initi~tive;
• the Administration's wetlands policy;
• on-board refueling vapor recovery;
'
'
• the Administration's policy on regulatory takings;
2
WJC LIBRARY PHOTOCOPY
�• the White House Conference on Travel and
• the proposed National Rural Summit;
• regulatory reform for small business;
• amendments to the Regulatory Flexibility Act;
• displaced workers;
• federal facilities clean-up;
• the working group.on new and growing businesses;
• the working group on non-trade steel issues;
• the motor vehicle working group;
• the process, pursuant to the Climate Change Action Plan,
to develop measures to significantly reduce greenhouse gas
emissions from personal motor vehicles; and
• the Ozone Transport Commission rulemaking.
A number of these issues -- including regulatory reform for
small business, steel issues, and the proposed rural summit
fall outside the major mission of the EPA. The NEC and its staff
ensured that the EPA had an opportunity to present to other
departments and agencies its views on such issues.
Further details concerning deliberations.and exchanges of
advice at meetings of the NEC, or between the White House and the
EPA, on any of the aforementioned issues are clearly protected by
executive privilege. It is the Constitutional responsibility of
the President to coordinate and resolve conflicting perspectives
of agencies within the Executive Branch, including the EPA. It
is also well established that the President (directly or through
his staff). is entit:.led to oversee, and communicate his views on,
rulemaking by Executive Branch departments and agencies. See,
~~ Sierra Club v. Costle, 657 F.2d 298, 405-08 (D.C. Cir.
1981); Meyer v. Bush, 981 F.2d 1288, 1297 :(Silberman, J.), 1307
(Wald, J., dissenting) (D.C. Cir. 1993). See generally United
States v. Nixon., 418 u.s. 683, 705, 708 (1974); Myers v. United
states, 272 u.s. 52, 117, 135 (1926). With respect to EPA
rulemaking under the Clean Air Act, the United States Court of
Appeals for the District of Columbia Circuit has observed:
The authority of the President to control and supervise
executive policymaking is derived from the
.Constitution; the desirability of such control is
demonstrable from the practical realities of administrative rulemaking. Regulations such as those
3
WJC LIBRARY PHOTOCOPY
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involved here demand a .careful weighing of cost, 11
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environmental, and energy considerations. They a•lso :_;0
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h~ve broad implications ~or national economic.pol\cy.
r::.
Our form of government s1.mply could not funct1.on \ ~-oQ>:
effectively or rationally if key executive po~icymak rs
.'~~
were isolated from each other and from the Ch1.ef
·
Executive. Single mission agencies do not always have
the answers to ·complex regulatory problems.
Castle, supra, 657 F. 2d at 406 (Wald,
J.) •
Where, as here, Congress has asserted a need for information
and the Executive Branch has a legitimate, constitutionally
recognized need to keep certain information confidential, each
Branch has a duty to seek to accommodate the legitimate needs of
the other. See generally United States v. American Tel. & Tel.
co., 567 F.2d 121, 127, 130 (D.c. Cir. 1977) ("each branch should
take cognizance of an implicit constitutional mandate to seek
optimal accommodation through a realistic evaluation of the needs
of the conflicting branches in the particular fact situation").
We have attempted to accommodate your Committee's interest in
obtaining information by providing you with detailed information
about the role of the NEC in the Venezuela RFG issue, as well as
the information above about other issues giving rise to
communications between the NEC and the EPA.
. We will continue our efforts to arrive at a mutual accommodation as to any further information you require.
Sincerely,
Lloyd N. Cutler
Special Counsel to the President
4
WJC LIBRARY=PHOTOCOPY
�06/20.t94
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UNITED STATES ENVIRONMENTAL PROTECliON AGENCY
WASHINGTON. D.C. 20460
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OFFICI! OF
GENERAL COUNSEL
David Finnegan, Esq.
Counsel
Committee on Energy and Co~erce
House of Representatives
Room 2123 RayDurn
Washington, D.C. 20515
Dear Mr. Finnegan,
'\
Chairman Oingell's letter of April 21, 1994 requested that
produce various documents concerning a prior EPA proposal,
under former President Bush's administration, on the use of
ethanol in reformulated gasoline, as well as documents concerning
the recent EP~proposal to require the use of renewable
oxygenates in·reformulated gasoline. Enclosed is EPA's response
to this document raquest.
EPA
The vast .bulk of the documents are not considered
confidential by EPA. However, as we discussed, EPA does consider
certain of the documents to be confidential and privileged under
the deliberative process, attorney client, or attorney-work
product doctrine. EPA does not intend to waive the protection of
these privileges by releasing these documents to the Committee.
These privileged and confidential documents have been segregated
from other documents.
As we .have discussed, EPA has been coordinating the
treatment of certain documents with the White House. Based on a
communication from Lloyd N. cutl~r, Special Counsel to the
President, certain responsive documents are being produced that
reflect deliberations within the White House, or communications
between and among the White House and executive departments and
agencies. These documents are being provided to the Subcommittee
in a .spirit of accommodation. Any applicable claims of executive
privilege are ·not waived, and the right to assert· such claims in
the future are reserved. These documents are identitied
separately in the producition~
Certain o.ther documents are not 'being produced at this
time, as the Special Counsel to the P~esident is continuing to
examine them to determine whether they are subject to executive
privilege. Mr. cutler not~ that he expects to discuss with you
and the Subcommittee whether a mutually satisfactory
accommodation can be reached that will take account both .
Congress' interest in obtaining information and the privilege
. accorded to deliberations within the Executive Branch.
·
WJC LIBRARY PHOTOCOPY
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With respect to EPA documents previously produced relating
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to foreign refiners, we· at that time asserted several brea~
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categories of privilege. we will rerine this aspect of ou~
request on Monday. Finally, a few offices are still reviewing
their.files to locate any responsive documents. I will pro:rnptly
forward any additional documents that are obtained based on this
search.
If you have any questions on this response to the Chairman's
request for certain documents,. please feel free to contact :me at
(202) 260-8040, or contact John Hannon of my staff at (202) 2601634.
Sincerel-y,
__
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..·.
Gary S. Guzy 'r
Deputy General counse.l
enclosure
......
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
December 21, 1994
Reid P. F. Stuntz
Staff Director and Chief counsel
Subcommittee on oversight and Investigations
Committee on Enerqy and Commerce
House of Representatives
Washington, D.c. 20515-6116
Dear Mr. Stuntz:
I am writing in response to Chairman Dingell's letter, dated
August 29, 1994, to Administrator Browner of the Environmental
Protection A~ency.
In June 1994, the subcommittee on oversight and
Investigations convened a hearing on implementation of the Clean
.Air Act provisions regarding reformulated gasoline. In
connection with that hearing, Chairman Dingell requested that EPA
produce certain documents to the Subcommittee. EPA promptly
produced a large volume of documents in response to that request.
By letter dated June 17, 1994, Gary Guzy, Deputy General Counsel
of EPA, also advised the Subcommittee that a small number of
documents responsive to the request were subject to potential
claims of executive privilege. Mr. Guzy explained in his letter
that the White House and EPA sought to work with the Subcommittee
to reach an accommodation with respect to these documents that
would take account of both Congress' oversight interests and the
privilege accorded to deliberations within the·Executive Branch.
As you know, it has been our position that only fourteen
documents responsive to the Chairman's June 1994 request (along
with earlier drafts of those same documents) may be subject to
executive privilege claims. We have already shown four of these
documents to the Subcommittee staff. 1
We agree with Chairman Dingell that discussions to date
between the White House Counsel's Office and the Subcommittee
staff have been productive. We are, of course, prepared to
continue these discussions with you if you determine that further
1
The Chairman's August 29 letter requests that the
documents at issue be returned by the White House to EPA. Please
note, however, that EPA has always retained the originals of all
of the documents in its files. The White House only received
copies of the documents, and has reviewed them to determine
whether they may be subject to claims of executive privilege.
WJC LIBRARY PHOTOCOPY
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discussions are warranted. The policy of this Adminisiiration is
3\
to comply with Congressional requests for information to the
~!
fullest extent consistent with the constitutional and statutory · ! ' 1• ·
obligations of the Executive Branch. While this Admini's.tration~~to'
like its predecessors, has an obligation to protect the ~
.~~
confidentiality of some cQmmunications, executive privilege w~r·
be asserted only after careful review demonstrates that assertion
of the privilege is necessary to protect ·Executive Branch
prerogatives. Historically, good faith negotiations between
Congress and the Executive Branch have minimized the need for
invoking executive privilege.
We look forward to continu~ng to work with you on the
important issues within the Subcommittee's jurisdiction.
cc:
Jean Nelson
General Counsel
Environmental Protection Agency
2
WJC LIBRARY PHOTOCOPY
~
�Talking Points
1.
Legal Team Structure
a.
JCS (in consultation with XX) will direct the
counsel's office preparation with respect to .
issues related to the conduct of Administration
officials that could become the subject of
congressional hearings or press interest
i.
ii.
b.
2.
on major issues, counsel office preparation
will include fact gathering and
investigation, legal research and the
preparation of briefing materials
at a minimum, lawyers will assemble for each
i~sue, a binder that includes a vanilla
summary of the issue, key documents, major
press stories, and a set of hard hitting Qs &
As.
JCS also will be responsible for liaison with
other investigations· (e.g. Starr, Smaltz, GAO) and
counsel for represented officials, .including
Kendall.
·
Legal Team Staffing
a.
b.
Current staff who have familiarity with targeted
issues will be designated to continue their work
on such issues under JCS direction
"'
The legal team will be supplemented with
additional lawyers as necessary. We immediately
wil~ add two (JCS wants three).
i.
Senior Lawyer, prosecutor type, to:
(1)
assist in liaison activity with
independent counsels and lawyers for
individuals
(2)
prepare for obstruction of justice
issues (RTC KC investigation; DQJn~o
WJC LIBRARY PHOTOCOPY
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handling of criminal
Stephens)
(3)
ii.
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pick up unassigned issues (Tyson~/
Brown, NationsBank, State Department,
PIC etc.]
Lawyer (Miriam Nemetz) to assist in
preparation for hearings on Foster document
handling
·
iii. (Lawyer for the Arkansas, pre-inaugural
issues-- WDC, MGSL, Hale, Rose, etc.]
c.
support
i.
Jennifer Dudley
ii. Legal Assistant ,.
iii. Kim Holliday (Secretary)~~&
WJC LIBRARY PHOTOCOPY
�PR~=: n"'--.
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January 20 ,' 1995
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Whitewater Team
1.
Purpose -- To develop and implement a coherent offensive and
defensive White House strategy for responding to inquiries
directed at the character of the President or Mrs. Clinton.
2.
Structure -- This objective will be implemented by the Office
of White House Counsel under the direction of Judge Mikva.
Jane Sherburne will oversee the operation of the Whitewater
team, which will report through her to Judge Mikva. The team
will consist of three components:
a.
Legal
i.
ii.
iii.
iv.
v.
Sherburne (Special Counsel)
Fein (Associate Counsel)
Nemetz (Associate counsel)
(additional lawyer)
(other OWHC lawyers as issues require -- e.g. Cerf .
with respect to Travel Office]
vi. [Ches Johnson - paralegal]
v11. Lisa Connelly - intern
viii.
Jennifer Dudley - researcher
b.
Legislative
i.
Yurowsky (OWHC)
(1) · Ira Fishman (Leg - House)
(2) [Mark Childress (Leg- Senate)]
c.
Communications
i.
ii.
3.
[Fabiani or Eggleston (OWHC)]
[additional press assistant
Gauldon, LeHane)
e.g.
Sqhloss,
Scope
a.
The team's central focus will be issues that involve
direct challenges to the character of the President or
Mrs. Clinton.
i.
pre-inaugural issues -- e.g.
(1)
(2)
Rose Law Firm
Commodities
1
WJC LIBRARY PHOTOCOPY
1
�(J)
(4)
(5)
(6)
ii.
Whitewater investment
Madison
Gubernatorial campaigns
Tyson relationship . to · WJC
governor
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post-inaugural character 1integri_ty issues .:.._ e.g.
HRC role in White House (Foster documents,
Health Care Task Force, ~ravel Office etc.)
(2) . criminal referrals re Madison
·
(1)
iii. conduct of senior White House officials that is
being characterized as reflecting on or relating to
the character of the President or Mrs. Clinton
e.g.
(1}
(2)
(J)
b.
The team will not be primarily responsible for issues
related to the conduct of cabinet secretaries, other
White House officials (e.g. Magaziner, Watkins FEC issue}
or topics that involve criticisms of the White House with
more attenuated connections to character issues (e.g.
Legal Defense Fund, White House budget & travel).
However, OWHC lawyers working on any of the~e issues will
consult and coordinate with the team to ensure a
consistent White. House response regarding matters that
may have broader implications for congressional hearings,
defense strategies, etc. Such matters would include the
following:
i.
ii.
iii.
iv.
4.
White House/Treasury contacts
Foster documents
Travel Office
questions involving the assertion of privileges
requests for .document production
requests for witnesses·
potential criminal exposure
Process
a.
daily team meetings with core (Sherburne, Yurowsky, ·
(Eggleston/Fabiani]) and other as determined by the
current agenda of "hot" issues
b.
weekly meetings (more or less as necessary) with core
team and· Mikva or Deputy and others from the OWHC
involved in the peripheral issues described in 3.b.
2
WJC LIBRARY PHOTOCOPY
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PRIVILEGED AND
C~\L
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What does the $10,000 deduction for "Legal and Tax Preparation" represent?\.
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Who paid this amount?
When was it paid?
Why were payments made only at that time?
What was the total legal bill for 1994?
What is the total legal bill to date? ·
Are the Clintons getting a free ride on their legal fees? (e.g., why are they able to postpone
payment?) Isn't that a gift, like an interest-free loan?
What is the difference between the amount associated with "Legal and Tax Preparation" and
the amount associated with "Accounting'~?
Why isn't there any reporting about the Clinton's legal defense fund?
Who determined that contributions to the fund are not income to the Clintons?
Who determined that income earned by the fund is not income to the Clintons?
What was the basis for these determinations?
Is there a written opinion that can be made available to the press?
Is there any precedent for the decision not to treat any of this as income?
DETERMINED TO BE AN
ADMINISTRATIVE MARKING
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This represents payments made during 1 994 for tax-deductible return
preparation costs and legal expenses.
0:
Who paid this amount?
A:
Mrs. Clinton paid this amount by checks.
0:
When was it paid?
A:
In March 1994
0:
"!
What does the $10,000 deduction for "Legal and Tax Prepara ion "
represent?
Why were payments made only at that time?
A:
0:
What was the legal bill for 1994:
A:
The legal bills submitted to the Presidential Legal Expense Trust by Williams
and, the legal bills submitted by
& Connolly for 1994 were $
Skadden, Arps, Meagher & Flom were $_ _ __
0:
What is the total legal bill to date?
A:
On February 3, the Presidential Legal Expense Trust announced that bills had
been certified to it as outstanding as of December 31, 1994, for Williams &
Connolly - $505,436, and for Skadden, Arps, Meagher & Flom - $476,246.
DETERMINED TO BE AN
ADMINISTRATIVE MA;.Ko/~
INITtAYf~:C ~8 flMtf:
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�DRAFT 04/06/95
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Are the Clintons getting a free ride on their legal fees? (e.g., why a'r:.e they
J:/
able to postpone payment?) Isn't that a gift, like an interest-free loari?~_:~./
A:
No. As with many clients who suddenly face high legal expenses, they are
unable to pay these bills on a current basis. The firms are continuing to bill .
for past as well as current legal expenses.
0:
What is the difference between the amount associated with "Legal and Tax
Preparation" and the amount associated with "Accounting"?
A:
The "Accounting" deduction of $3,000 is a payment made to the President's
Little Rock accountants for accounting work in preparing a financial
disclosure report.
0:
Why isn't there any reporting about the Clinton's legal defense fund?
A:
None is required under the tC!X laws.
0:
Who determined that contributions to the fund are not income· to the
Clintons?
A:
The Clintons' legal and accounting advisors.
0:
Who determined that income earned by the fund is not income to the
Clintons?
A:
The trust earned no income during 1994.
- 2 -
WJC LIBRARY PHOTOCOPY
�-~',,,
DRAFT 04/06/95
PRIVILEGED AND CONPIBB!Pi'iEA:C
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What was the basis for these determinations?
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A:
Legal and accounting advisors determined the contributions to the f
gifts, and therefore not taxable income.
0:
Is there a written opinion that can be made available to the press?
A:
No.
0: ·
Is there a precedent for the decision not to treat any of this as income?
A:
There is no specific precedent for this situation; However, under the Internal
Revenue Code and a long line of judicial precedent, donations made out of
he donors' generosity are r~cognized as tax free gifts.
/
- 3 -
WJC LIBRARY PHOTOCOPY
�12-82-1994 10=36AM
.
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FROM
TO
wc&p
94566279
P.l32
... . ...
. The Depart::mt.n.t of J1Utice and Ql1Y othor p~t o.Dtlf:r iuVQ!ved in ~
tWv.lopme.ut of tM ~q Oriminal R.tien.--.1 P~ 0.0\lld. cl....top
aa.cl fmpli!'ITif'!Dt mdfbrm in~ polid~ ibr hendli~ ~~ I'~
and UliwhiMllllYW!Jg.aU.ans 1Dvolvlu; libe 'PreeteQ.t, memberB of th.e
l?ruideo.t'.s familr, and aeDior adm.ia&stiratiiGD olr!tia1a. Thue poUclas
should~
·
·
{a)
~~and
(b)
effilrts
to mAintd.l. the con.Udeutielit:y ot au.cb criminal
l'eferHls, incl•'Ciiau dBt.ed.ion and 8i8.D.C_Lhuing a£ Q6'lK'!f &taft' who
"teak.. ~01% ;mout c:rimi:nal :nafar.ral.c w ~
m•ttltiip.tlcms to th& press 01' tb.e ~·
(c)
&
routing of mdl cmnmal rdlrrats;
requirca.
method ofprovidm; n~Jtka to the age~ head. the aptnGf'$ se!U!Inll
COUlllol, an4 theDlrec;.ta' oftae Oftlce of<lcm:mm.ent Eth.icrJ; 8.Dd
The Ofliee of Government Ethics ihoald Jl'vmulaate a att.D.<lard of eandutt
de~ wha~ contact.& between White HoUle oSdu 2md executive
bn.neh ~A;ftia\a AM ).\'M{\1\'1"· (Thita MuM i:al.u'l N> nHI!t\TI'Il'l-i~rl
'v ~tlW!
.
O~J
DETERMINED TO BE AN
. AOMIN,\):\TRATIVE
MA~G
INITIA~sr:~~ ~~~~
11
~OCOPY
�12-02-1994 10!36AM
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FROM wc&p
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NOI'rl POl.B
..
Ia makillf :Becommitlldat.il»AJ$ Noa. 1 ad 2, tho Committ.ee is ~ant of
the mqy azgumema in favor of~ 2.civance noQoe to the Fraaident. 'I'he~
C~ ~that historieall:v. PN.i~ta. *'u.c:ii'D.!l ~eD.b Ni:fla,
Carter, cd. Reagan, have received advaaee aof:ioe af' crfminal inv~l~Stf.g•tionu ~to
~ their uwu. co&uluc:t. at wtN.l K.S u• wtHl .... gc. c.~(' ~u.iur atdmb;:istratlcm affl~.
.'J:Ib4 Committee haa aleo ~ed the ~t.uti011.ll argument~&~ the
prvv:iafon ot such advance t'XItiklo hued on the "wsating11 u4 "take care" claneew of
Article II of tb& Caos:titutton. FhJally. tbs Connnittee hAs e.on~ide:red vuious
public poli(3' 8Z'gl:lllWilt11-ind.\Jdi.De Vbat the Fresidtm.t muat 'b• ~ltii to respond to
preM ir.qa.irlee te pe4>b ~tivel7--in &.-rot~ ot' Dring adv~ ~ too tb.o
Prasfd.ct ud. mOcbem of the Prtaident'e t~ of G'.l'ixnirud referrals and
1
mw~~.
·
·
Tbe Oommi"ttee haa also 40l1Sidercd f:ha l11&11y .e.rguments ~ pl'tJVidina
i'Ntlli4e:ot. 'l'M Com.'J»it• ~ tbe .aegc.ttivo u!footc
ad"aai:IO noRe9 in Watergate ud Inm...t:o=.. roa'fittft ha.ft had. en the om~ of the
.P.Naibcy. 'rho Cammi\'tei bel ~dored tb: •a~ aDd propat"" tlt.uee ot
Aztifrllt I whlcb a;ta.lltf. the Oocgrasa the ~l.ltb.cui.ey to ''make aU Laws "Ph.ich. abd1
lit;~ 11\d. proptl!' fol" ~ i!ttc EucuUon the f~ing Powen and aU
Qthel' l?ow«'B vaat.d. in t.m. Couii.W.tiDU 1A th• OO'IIem.me:nt or th9 l.TzGteci State~,
ur in uy Departmant 6!' Oftlcer thll"Mf... The Comml.ttaA w ~ the
lfiew- uf wv.w• t'.U.DHtitutWn.el ~ cbJillt!~ icb.e ClOllBtitutlatWJl bii41G of the
adv~ ~to 1ibc
at:toong umeary e»cutive arpmct. Finally, the Oamm.ittee haa also ~
the public pt~lifz1 Al'gll~ts wbfcll militate ap.iMt ~~ nodce t.o the
P!esidaat, hial.udi.ug ~ long-he1d notian that tM United Si:fli:t>JI in a gmrf!f'nnu~nt
of :ta:wa. 1\0i: of men and "''men.
'!be Commltt:.t beliaves that })ublio pa1iey
~ ~-- the pubUc ~z.a.,. ~omi&mce ia tho
ua~tbclaw.
l!iiJ"Dil=m
aD4 not bttli~Jvt- tb4t aom.
·
The Cvmmitteo believes that &commendatiCIAS Nos. 1 ud i take blw
G4UND.i the histaricallessona af'Wa.tu{'.a.te, ~,contra, and the ~tioA of
t1M Carter faJnily )l&aliUt businas ~ th11d• t.b.\'ISI rDOQXIl.UltJD.ds.tiCD4 fah~:v bWan<=the CCJDtPBtiDi constitutio:DAl tmd. Pl'Wie poaq Qt.~
WJC LIBRARY PHOTOCOPY
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FROM UICi-p
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lltoos
No Dapa.rtment af Jumeii of£icial, eKecu.tive bnul.cb &&eney offiCial.
tacltpo.odem agenny oll!~:w. Vii' other gO\"ermuca.t ofiici.U ~ :p.ttwid.a
adYal'IC8 noW. tc the Prteiclent, a Jl.lelllb$r ()(the P~t'a bily1 en,
White 'HoW~& olieid, 01' any at lh$it ~ when the Presidan.t Ol' a
m.em.w of tL. ~den:t'" family fwho reside~ Mth the P....Udeo.tl i.i l£6tect
as A "~~UpeGt•• io a Q'imina.l refetralr tlr is: desipaW a ~~ w 11 ta.rg'et'1
of a <Jlirgjn.J lnvudp.Qo.o,a
Su.eb an E:mcutive Order, legi&laticm, or q-eraoy regulattun snould. nat.
prertlndft the pro9'isim of adVBJ.!tl! 11oti.u.a w-here the P.resfdent or a mtmber
ot the Prasidenfs £a.miiy is liate4 &olely at a ..wi~;t h\ a eriminal
rer.n-.1." prori46d the&t tho~ iibr ~ ~;neh
ad~ nQtice.
descn"bbd below. a:e foUowed.
Forma1 ~ AOt.it» alW.l b~ provided, ~t to tM. procedve (1\ltlmecl.
below. lty the ~ Gcn.n-al at the Ultlted S~ IIi!' tho p.aeral oowuel :
ei the l!li:OC.nm ~ ~1 01" mdepeadant agacv respoM,W.. 1m: a
crimillall"afernl w a crf:D:dnal in'IE!Idi,ption iD. which a iaUor
.
~
• A "e~et" ot mrntnel htvGISLilflltiOut i.J GeQ~ed ia ~AD u.ut84 Sts.to&
At~· Meual u a perscn "whO!e ~ 1e mtlilil the scope of a gt'4hd juris
i~ation.· A "t.a1:'pt11
St;u.tes A~ MeDual
of a c.r:bnuw mwatige.ti0134 ¥ aetinsct m ~ Uaibed
u • ~n .,to who=. the JD'Oil'tmtol' ar grand jury bas
tubstc.tial ~nee l:JnkiDg himllwr to the ecumnjss:ion oft\ Cl'itne and who. in tb.
jllCf.grfte:ot ot'tbs pto&tJtutor,l.s a put..tm dcftmdant. ('O'd&i Stat. Attbftl~'
Manual9-ll.l50)
''Wit.D.tlle&11 a.re defined. i;l the bterapnq Cl:i=iwll Raferral Ftn.'m as a.
~who "might l:ut.n :irdOrmdion ~hmxt the suspects' ~Violation(&). \S.
·
4
Hl1:· 1~579 JIP. ~02.~08)
WJC LIBRARY PHOTOCOPY
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adl'ti)'D;iatrat,ioa \'!lcial' ls lilted U
~1 ~J'%'al 0~ il4~ted
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iDftSUptioll.
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Tbe pnJCedare far ~ a.dvuce notu:e should include the fall~ne:~ , y,~~ '
(A)
Tho ..Ut.arn.o)o Gene!tal ar .llpib.G7 J6t'.lfll'al 6t>U.'ME!l $'hOnld pro~
. e
Ditector of the 011ioe f)£ Ocm!r:omtm.t EW&.I with a ~1'. :~~amma.r.1
ottbe natore aDd mwa ofttle ~al referral oz~
brrarrt:iptl-. iad;udf:ar an then ko.~A and. uiicip&f4d witues&e~,
a~ 1\l.Pjccts. and
(b)
targeb.
file~ of t.lH Office of~* Ethia~ ~ollld rsview the
~ i1UZUilfJJ7 provtded md, u:l.aa th>t ~tor a membcl:r o£
tblt Pleaidea.t'a family (who residea with tb.a P'restdent) is also listtd
as a "I'DIPtet" in a cri.mi.nal nfel'!'81 or as a "subjectn or a ''ts.rger' of o.
et"ftDinal ~tlcm. !llhall..,nemit the "'ltri~ ~ of the
crtm;Dal refm&l M itW'Mtfgati0t1 to t'b.e Preaident. Whitt~ Houo
CuUW5Illl. At~y Gene:d, aud, U' one bas been appointed tor tba~
rCfetrtl or mvut:ip.tio.a., Independent Counael. At· the e«m~ um.e, tba
Dir~ o1 Qov~t &hies .Wd tnumit wiib. theea mate'ria.l.l
th\np, ~e otth.e ~
nctiee 01' ather ctmduet which eoll$titu.iu obatn:diou of a tLimina1
ia~ 'Win be subject to P'U'Ii•hme;tt.
a
~ ~ t.bBt1 atfttm~t ~'hP.'f
IHJL: W• may wish to~ adding a :wttiucal ~V/tbreian policy
~J
·.
WJC LIBRARY PHOTOCOPY
�TO
t.'O.Iml POLE
A.~~
•
Tha OGE &boulG amend the s&and.ardb ot tondllcl. to dar.i£l.r the pr(,ceaurn ·
to b& lollow6d. where a ~eut eml)lO)'ae bat aa o:ppetatflt\Q; of a lack of·
~ali"r ~ &tee~ f:r()Q} a. r.htiol:wld:p other than 1t ·~
,._tloPShJp," as tbat term i.e df:bad by 5 C:tlt. i268~.002(b)(1).
•
'l."he OOE ahould.~ the ~ o:.lf coad.uet to requi:N that t1w p1lhlK
~on of m ap~ of a la.ok ttl b:npant.aH;y be weighted Jnort
h&a:.;,};' ~
tM 'bRlanC!'iftS cf~ UStld to ~e whetht.1r A. pa~t
employee ahowd :ecuse/~ himselttrom ~matter.
.
•
.
Tho OOiabould IIJDODd the 9a.w!Slda of conduct to CIUIA tho~ of
t«Wial/diaqualifi~aij.QD. to became more ~cnn.. '.tbe 008 &boWel con!ld.er
whethrr aU ~ iUld dflqu.alifit.ttiocs should 'be mea ta 'Wt'f:tlnl, da:tedt:
ti;ntd awiJOP t1led in a tertain lbeati.on.. "'Dae 001 Ghould ao~ the
pu\ilio dieclo111W'6 ~o~ of the ~ o£ L.lo&mati~o. .W .i:l1
~ tha
•
proper regula.ti.omJ NCn~Pm.twltcl b:1 tl'U8 11ection.
The Committee is oc~ed. tba.i the tW'l'!:lnlr OGE standards of con.dud ..:lo
not adequatel)r d~'"e the ~nc:eS under which pMrmnent
emplqyees m.~ co~:~~»~te with othe~ ~ emplO)"el!!l!! regvding
rotWhtl iMUM. S~ly, thP! f'..ommitte ~ canecmzaci that the ow: :rent
atanrbtrds ot caa.duc;t d9 not adeql;&ately define the ci~~cea u.ndat'
wh.it:h ~utd ur <:~.ppaND' .:odicta Q£ in~ ahou.ld. p!!'Okibi11 aueh
~entnlental t0D.DlWUe&tions. The OOE thot'<l con.ilcle.r
ptomu.lp.ti:J.g new standards of ecnd.ud: to !ll'O'ricl• adaitional gui~ in
this important usa..
DETERMINED TO
BE AN
:
ADM1NISTRATlVE MA~~~o1·
tN\T\ALS: ~ DATE:~
~DOte -t>:3/1 typ
WJC LIBRARY PHOTOCOPY
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DETERMINED TO BE AN
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lN\Tt~l.S:]i§_ D~TE:~
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�r'
"":'--- CQNFIJ5EN rrltt LAWYER WORK PRODUCT
DO,NOT COPY
MEMORANDUM TO THE FILE
FROM:
Jane Sherburne
Special Counsel to the President
SUBJECT:
Meeting With Independent Counsel
On February 20, 1995, White House Counsel Abner Mikva
and I met with Independent Counsel Kenneth Starr, Mark Tuohey
and John Bates in their Washington D.C. offices.
We discussed
the following:
1.
We provided telephone directories in response
to a request by the Independent Counsel.
2.
We asked the Independent Counsel to consider
alternative ways ,of obtaining the information they were
seeking from the "FI Post Logs."
Tuohey agreed to consider
our request and get back to us.
3.
We requested that the Independent Counsel make
arrangements for White House witnesses to enter the grand
'jury
unobserv~d.
We were assured that. such arrangements
could and would be made and that White House witnesses would
be advised of procedures to follow.
4.
We noted that Tuohey had told Sherburne there
were orily four White House employees who would be receiving
·Arkansas subpoenas but that we had learned of at least seven
who had received them.
Tuohey apologized and confirmed there
bad been no more than seven.
�-
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5.
Tuohey advised that. some of the problems
.
press leaks originated with witnesses who talked to
about their subpoenas or
appearanc~s.
Counsel operation.
w~th
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He suggested we might
advise White House witnesses to be discreet.
emphasized their efforts to prevent
IJ/. \
. (;
leaks.
He and Starr
from the Independent
Sherburne described the latest "leak"
as reported to her by AP -- that the Independent Counsel is
inve~tigating the entry of Foster's office by yet another
woman
dur~ng
the night of July 20-21.
Star·r and Tuohey
encouraged us to continue reporting leaks to them.
disavowing facetiousness,
Tuohey,
invited Sherburne to give him her
ideas about who the woman might be.
6.
When asked about reports and
~iming,
Starr
said he planned to issue a report on .the Foster death sooner
rather than later, although he declined to predict when that
might be.
With respect to the Foster document handling issue,
Starr said that his current
inclination is to wait to issue
.a report or complete his investigaiion until afier he has
the benefit of congressional hearings that may turn up
something that his own inauirv missed.
We vigorously objected,
pointing out that it.was in his interest as ·well as ours to
avoid politicizing his inquiry.
Starr said he would consider
our views.
7.
· In response to a question, Tuohey said the
Indepdendent Counsel.would be interviewing White House
officials or taking them before the grand jury on the subject
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of White House/Treasury contacts over the next few
w~:eks.
0':\
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us about who· they expected to interview or subpoena in
~i
5}Lf
He and Starr agreed to rethink the pro to co 1 s for not i\ying
.
-t:- \
J;.
,\~.:0/
·~
response to our concern that their· testimony implicated
important privilege questions about which the White House
had an interest and ought to be consulted.
8.
The Independent Counsel expects to request
further interviews from WJC and HRC on subjects pertaining
to the Washing ton and Ar.ka ns as phases of the investigation.
9.
Starr· is continuing to evaluate D'Amato's
request for the transcripts of the earlier depositions given
by WJC and HRC.
He has concerns that the presence of Lloyd
Cutler and David Kendall at the deposition weakens the
argument that the depositions are protected by the grand jury
secrecy rule.
He observed that
th~se
concerns
ha~e
implicat~ons
for the manner in which the Independent Counsel conducts
further depositions.
We agreed to provide an analysis of
. the issue to supplement Kendall's prior letter on the subject.
In any event, Starr said that the Independent would not
:
release the transcripts during the pendency of his investigation.
WJC LIBRARY PHOTOCOPY
�.
.
1;
JCS
Pr\' vileged .
Task List
December 13, 1994
1.
Issues
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
1.
m.
n.
o.
p.
q.
r.
s.
t.
u.
v.
w.
x.
y.
z.
aa.
ab.
ac.
ad.
ae.
af.
ag.
Foster document handling (Nemetz)
Travel Office (Cerf)
White House/Treasury contacts (revisited; report)
(JCS)
obstruction of justice (DOJ handling of criminal
referrals; Jay Stephens; RTC whistleblower
reprisals) (**)
use of White House resources for response efforts
(Nolan)
Foster suicide (Nemetz)
Espy (ethics; expanded Smaltz inquiry re Tyson's,
Hatch Act) (Mills/Nolan/**)
Cisneros (**)
Brown (**)
Hubbell (**)
Ickesjunion representation (**)
StephanopoulosfNationsBank (**)
State Department -- passport files (**)
Archives -- abuse of personnel system (**)
Legal Defense Fund (Mills)
Health Care Task Force (Neuwirth)
White House operations (drugs, passes,
helicopters) (Mills/Nolan)
residence renovations (Neuwirth)
presidential immunity (Sloan)
White House Arkansans (Thomasson, Nash, Rasco)
(**)
PIC surplus (**)
improper electioneering (SBA) (**)
GSA (Roger Johnson) (**)
Value Partners (Neuwirth)
presidential campaign (FEC audit) (**)
commodities (Kendall/**)
gubernatorial campaigns (Lindsey, Wright) - record
keeping (Kendall/**)
gubernatorial campaigns - MGSL (Kendall/**)
WhitewaterjMGSL (Kendall/**)
other MGSL/McDougal (Kendall/**)
Rose Law Firm (HRC work for MGSL; Frost Case,
FSLIC representation) (Kendall/**)
David Hale/Susan McDougalfSBA (Kendall/**)
Tucker (**)n~o
WJC LIBRARY PHOTOCOPY
(
�-~>
~~/o;.,
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ali.
ai.
aj.
ak.
al.
am.
2.
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(*9
Lasater (bond deals; cocaine; Roger Clintoh}__
use of loans to achieve legislative initiati~
(**)
ADFA (political favors; Larry Nichols) (**)
Mena Airport (**)
troopers (**)
women (Kendall/Bennett/**)
-.
J.-.<..,.:0/
Preliminaries
a.
identify key republican objectives and routes for
achieving them -- e.g.
i.
ii.
b.
identify guiding principles for response -- e.g.
i.
ii.
iii.
iv.
v.
vi.
c.
sustain shadow on WJC character
hype HRC threat to white men, traditional
women
nothing to hide
stick to the facts
get it right the first time
keep it simple
resist harassment
govern America
executive privilege research
i.
ii.
iii.
iv.
OLC state of the play
comments by republicans re assertion
protocol
strategy/principles for asserting
d.
research.re entitlement of Congress to HRC/WJC
transcripts of depositions given to Fiske
e.
research re congressional subpoena power
i.
ii ..
iii.
iv.
f.
reach (HRC/WJC)
precedents
committee rules
procedures
research re limitations on legislative power to
investigate
i.
ii.
legislative purpose
overreaching precedentsn~o
WJC LIBRARY PHOTOCOPY
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g.
learn new Hill committee jurisdiction,
h.
courtesy visits to Hill -- member and staff level
(eg. Frank, Sarbanes, leadership; Harris, Meek,
etc.)
i.
consultations
j.
offensive structure
i.
ii.
iii.
iv.
k.
representation of Administration officials by
private counsel
i.
1.
3•
FEC legal research
W&C
DNC/PCCC/DSCC
·surrogates
compensation
research re proper role of OWHC with respect to
pre-inaugural issues with an aim toward
articulating principles for determining who should
be principal spokesperson on a particular issue
and· the extent to which each (private
counselfOWHC) should participate.
Foster Document Handling
a.
independent counsel inquiry
i.
set meeting with Starr
(1)
identify options with respect to
issuance of report
{a)
{2)
(3)
ii.
b.
precedents
inquire about status and.timing
HRCfWJC depositions
status check with counsel for individuals
congressional hearings
i.
identify likely committees {Senate Banking;
House Banking, Gov Ops, Judiciary)
(1)
identify friends
staffn:::::o
key Members and
WJC LIBRARY PHOTOCOPY
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(2)
(3)
ii.
identify leadership
identify key republicans
congressional visits
(1)
(2)
. (3)
Daschle
Sarbanes & other Banking
house
iii. prepare background materials
(1)
(2)
iv.
assemble public record
talking points and fact memoranda
determine how to handle representation of
individual White House staff
{1)
(2)
(3)
outside counsel
attorney fees
assertion of privileges
c.
press strategy
d.
surrogate role
i.
ii.
Hamilton
identify others
e.
offensive research
f.
issue specific tasks
i.
securityjLivingstone issues
(1)
(2)
(3)
(4)
(5)
ii.
debrief Joel
review Livingstone file
consult with Randy Turk
interview Livingstone
fact memo
inconclusiveness re Williams removal of
documents
(1)
(2)
(3)
confer with Ed Dennis
debrief Joel re security officer
assemble public reports of document
removal on 7/20 and statements
attributed to White House officialsn~o
WJC LIBRARY PHOTOCOPY
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iii. chain of custody re transfer of
personal files
(~)
complete interviews
(a)
(b)
(c)
(d)
(e)
(2)
(3)
(4)
iv.
Carolyn Huber
Linda Tripp
Deborah Gorham
Bob Barnett
Syvia Mathews
fact memo
assemble public record
determine strategy re release of WDC
file
search of Foster office
(1)
assemble public record
(a)
(2)
(3)
including any relevant testimony at
Senate hearing on Foster suicide in
July 1994
fact memo
legal research
(a)
obligation to seal the office
· immediately
(b) . obligation to cooperate with law
enforcement authorities vs.
protection of privileged material
(c)
basis for protecting disclosure to
Congress of privileged material in
VF office
·
(i)
v.
basis for resisting
identification/production of
all documents in VF office and
Bernie's safe
delay in surfacing suicide note
(1)
complete interviews
(a)
(b)
Gergen
Burtonn::::&
WJC LIBRARY PHOTOCOPY
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(2)
assemble material in public
(3)
fact memo
(4)
legal research
(a)
obligations to disclose a note to
law enforcement authorities
(i)
if not obviously a suicide
note
(ii) timeliness requirements
4.
Foster suicide·
a.
b.
c.
d.
5.
Chris Ruddy/Center for Western Journalism
causes for suicide
monitor Senate report; coordinate with Hamilton
develop press response
Obstruction of Justice
a.
delay in addressing criminal referrals; DOJ role
(D.C. and Paula Casey)
i.
ii.
determine usual process
develop chronology/fact memo with key
documents
(1)
(2)
(3)
Charles Banks
Paula Casey
.
(track Lewis correspondence released by
Leach)·
iii. identify Committee interest (D 1 Amato; House)
iv. assemble public record
b.
RTC/Kansas City investigation (suspension of Jean
Lewis, Richard Iorio etc.; April Breslaw; pre-1993
activity)
i.
develop chronology of known facts and key
documents
ii. interview Breslaw
iii. identify Committee interest (Leach; Senate)
iv. examine last day of House hearings for
offensive help
c.
Jay Stephens
retentionn~o
WJC LIBRARY PHOTOCOPY
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track public record
identify efforts to give IC civil
jurisdiction
identify Committee interest (D'Amato; House)
iii.
i.
ii.
6.
White House/Treasury contacts
a.
senate Report .
i.
ii.
review/comment on Report
keep in touch with Minority Report
developments
iii. prepare press strategy
iv. identify surrogates
b.
White House investigation of White House/Treasury
contacts (receipt of information about RTC
investigation; work product; redactions)
i.
ii.
c.
Truthfulness of White House and other
Administration witnesses (referral of testimony to
Starr -- Ickes, Stephanopoulos)
i..
ii.
iii.
iv.
d.
consult with lawyers
identify areas of vulnerability
research re perjury
press response
Heads-up policy
i.
ii.
iii.
iv.
v.
e.
prepare file memorandum describing use of
unredacted transcripts
determine continuing Bond interest
surrogates
uniform application
Treasury status
press strategy for release of committee
report·
work up background paper on precedents
Recusal policiesfOGE/Executive Orders
i.
press strategy for release of Committee
report
ii. background paper
iii. consult with OGE
iv. consider Executive Order or other response to
Committeen~o
WJC LIBRARY PHOTOCOPY
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f.
Contacts policy (Executive Order)
i.
press strategy for release of Committee
report
ii. background paper
iii. consult with OGE
iv. consider Executive Order or other response to
Committee
g.
Rikki Tigert
i.
determine her first likely congressional
appearance in the new congress
ii. assemble public record
iii. interview Gergen, Tigert and Klein re
communicatio~s on the subject of recusal
(1)
(2)
iv.
7.
determine press strategy/talking points
Smaltz Investigation
a.
b.
Espy -- ethics (Mills)
beyond Espy ethics (Hatch Act, Tyson's)
i.
ii.
iii.
iv.
v.
8.
determine response to allegation~ of
"pressure"
determine response ~o allegation that
Klein misled the committee
determine charter, scope of inquiry
determine press strategy
identify congressional interest
assemble public record
fact gathering
White House Whitewater response effort
a.
legal research
i.
the appropriate role of White House staff
with respect to issues ar~s~ng preinauguration (see above)
b.
fact development (scope of effort, etc.)
c.
determine press strategy/develop talking points
d.
assemble public record
i.
Lindsey involvement
pre-1994n~o
WJC LIBRARY PHOTOCOPY
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ii. Ickes' Ward Room undertaking
iii. Podesta damage control effort
9.
establish contact with counsel
determine press strategy/develop talking points
identify source of congressional interest
assemble binder with summary and key documents
monitor cooperation
determine press strategy/develop talking points
monitor
assemble binder with summary and key documents
monitor
assemble binder with summary and key documents
identify issue
determine congressional interest
assemble binder with summary and key documents
Archives (abuse of personnel system)
a.
b.
c.
16.
gather facts
establish contact with counsel
determine press strategy/develop talking points
identify source of congressional interest
assemble binder with summary and key documents
State Department (passport files)
a.
b.
c.
15.
(1~
Stephanopoulos (Nationsbank)
a.
b.
14.
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Ickes (union representation)
a.
b.
13.
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Hubbell
a.
b.
12.
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a.
b.
c.
d.
11.
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Cisneros
a.
b.
c.
d.
e.
10.
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identify issue·
determine congressional interest
assemble binder with summary and key documents
SBA (improper electioneering)
a.
b.
c.
identify issue
determine congressional interest
assemble binder with summary and key
documentsn~&
WJC LIBRARY PHOTOCOPY
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17.
GSA (Roger Johnson)
a.
b.
c.
18.
FEC Audit
a.
·b.
19.
determine congressional interest
assemble binder with summary and key documents
PIC surplus
a.
b.
c.
20.
identify issue
determine congressional interest
assemble binder with summary and key documents
identify issue
determine congressional interest
assemble binder with summary and key documents
MGSL-related
a.
Whitewater Investment
i.
ii.
assemble public record
review documents, including work of
accountants and tax returns; Lyons reports
iii. develop fact memo and chronology
iv. press strategy
b.
MGSL
i.
ii.
iii.
iv.
assemble public record
review W&C documents
develop fact memo and chronology
fact memo
(1)
(2)
why MGSL failed; relationship of
campaign contributions to failure
Rose Law Firm work (HRC 1985)
·(a)
(b)
v.
c.
conflicts
enabled MGSL to stay open longer
than it should have
surrogate strategy
Rose Law Firm
i.
fact memo
(1)
(2)
status of conflicts inquiry
Frost casen~o
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Rose services to FSLIC related to
Lasater brokerage firm (HRC 2 hours in
1987, signed pleadings for VF)
billing practices
ii. assemble public record
iii. determine press strategy
d.
21.
David Hale
Other Pre-Inaugural
a.
Gubernatorial Campaigns
i.
identify issues
(1)
whether expenditures and loans were
properly reported under state law
(a)
(b)
Lindsey role
Betsey Wright
(2)
(3)
ii.
iii.
iv.
v.
b.
Starr looking at 1984, 1986, 1990
interview Kendall; review Kendall documents
interview snyder/Lindsey
fact memo
press strategy
Negative Associations
i.
ii.
iii.
iv.
c.
role of the Bank of Cherry Valley
Jim Guy Tucker
David Hale (SBA)
Jim McDougal
Dan Lasater (bond deals, cocaine, Roger
Clinton)
Mena Airport
i.
identify issue
ii. determine congressional interest
iii. assemble binder with summary and key
documents
d.
ADFA
i.
ii.
identify issue (political favors)
determine congressional interestnzo
WJC LIBRARY PHOTOCOPY
�- 12 -
iii. assemble binder with summary
documents
e.
Use by Governor Clinton of loans to further
legislative initiatives
i.
identify issue
ii. determine congressional interest.
iii. assemble binder with summary and key
documents
f.
Commodities
i.
ii.
g.
Paula Jones
i.
h.
determine congressional interest
assemble binder with summary and key
documents
assemble binder with summary and key
documents
Troopers
.i.
identify issue (job for silence, other)
ii. determine congressional interest
iii. assemble binder with summary. and key
documentsn~o
WJC LIBRARY PHOTOCOPY
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRJCTION
.Sif.e
001. note
To Jim; RE: Privilege (1 page)
n.d.
P5
~note
Lynn, RE: Telephooe nwnbex [pat tial] (1 page)
n.d.
Pe!-b(6)
-902b. note
RE. Attorney Work Product (1 page)
06/05/1998
P6fb(6)
-602C. nofe
RE. Telephone nwnber [pattia:i] (1 page)
ltd.
P~AI(6)-.
002d: oote
RE: Handwritten notes (9 pages)
12/14/1998
P6/'u(6)
003.list
RE: Sherburne Memo (10 pages)
12/13/1994
P5
5/CJ-
COLLECTION:
Clinton Presidential Records
Counsel's Office
Sally Paxton
OA/Box Number: 13851
FOLDER TITLE:
Whitewater
Debbie Bush
2006-0320-F
db2041
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)]
Freedom of Information Act- (5 U.S.C. 552(b ))
Pl National Security Classified Information ((a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) ofthe FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
'
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)( 4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning weUs [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misf11e defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
'
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The Wall Street Jou.rnal Interactive Edition- September 6, 1996
Sherburne Memo
·:.::~:
JCS
Prtvileged
Task List December 13, 1994.
I. Issues
a. Foster document handling (Nemetz)
b. Travel Office (Ce:rt"')
c. White House/Tr~sur:y cont:J.cts (revisited: rcpon) {ICS)
d. obstmc:tion of justice (001 handling of criminal rci'c:rrnls~ Jay Stephens; RTC
whistleblowcr reprisals) (**)
e. n~ ofW'hite Hottsc resources for response ciTon.c; (Nolan)
f Foster suicide (Nemetz)
g. Espy (ethics: expo.ndcd Smaltz inqwry re Tyson's. Hatch Act)
(Mllls/Noianl**)
h. Cisneros (**)
i. Brown(**)
j. Hubbell (**)
k. Ickes/Wlion representation c••)
l Stephanopouios/NationsBa.nk (''"")
m. State Department-passport nics ('*•)
n. Archives-abuse of personnel system (**)
o. Leg;1l Defense Fund (Mills)
p. Hc::~lth Care Task Force (Neuwirth)
· q. W11ite House opcr:ltions (drugs, passes. helicopters) (MiUs/Nolan)
r. residence renovations (Neuwirth)
s. presidential inununity (Sloan)
t. White House :vkansans (Thom;:tsson. N\lsh. bco) ('**)
PIC surplus (*•)
v. improper elcctionccrins (SBA) (•*)
w. GSA (Roger Johnson) (**)
x. Value P:utncrs (Nc::uwrith)
y. presidential c:lmpllign (FEC audit (**)
IL
:z; c::ommoditics (Kendall/**)
aa. gubcmatorial
camp:.~it;ns (Lincisa)'.
Wright)-rccord keeping (Kendall/**)
ab. guberru:1toriai C.llmpaisns - MGSL (Kend:lll**)
ac. Whitc::watcr/MGSL (Kendall/**)
·
ad. other MGSLJMcDougc:~I (Kendall/**)
ac. Rose L<~w Firm (HRC work for MGSL; Frost case. fl'SLIC representation)
(Kc:ndall/*•)
at. David Hale/Susan McDougaiiSBA (Kendall/**)
ag. Tucker (**)
ah. Lasater (bond dc.1ls; cocaine~ Roger Clinton) (**)
ai. llSC of loans to achiC".·c legislative initi::ttivcs (**)
aj. ADFA (politic:tl f:IVors; Larry Nichols)(**)
ak. Mcna Airport (*"')
al. t:roopcrs (**)
am. women (Kcnd:tlVBennctt?••)
2. Prclintinmi.cs
WJC
~JBRARY
PHOTOCOPY
�a. idcntiry key republican objectives and routes for achieving them-e.g.
l sustain shadow on WJC cbar:lctcr
.
ii hype HRC threat to white men. traditiional women
b. identify guiding principles for rcponsc-<:.g.
l nothing to hide
ii. stick to U1e facts
iii get it right the first time
iv. keep it simple
v. resist harassment
vi. govern AmeriCCl
c. executive privilege research
l OLC state of the play
ii. comments by republicans re assertion
iii protocol
iv. strategy/principles for assening
d. resc:lt'ch re entitlement of Congress to HRC/WJC lrnnscripts of depositions
given to Fiske
·
e. research re congressional subpocrt.'l power
l
:re:lCb
(HFCJWJC) .
ii. precedents
iii. committee rules
iv. procedures
f. research re limitations on legislative power to invcstignte
L legislative purpose
ii. overreaching precedents
g. learn n~w f¥11 commillce jurisdiction, membership
h. courtesy visits to Hill-member :md stafTtcvc:l (eg. Frnnk, Sarbanes,
leadership~ Harris, Meek, etc.)
i. consultations
j. offsens.ive structure
i. FEC legal research
ii. W&C
iii. DNC'DCCC/DSCC
iv. surrogates
k. representation of Administrution officials by private counsel
i. compensation
1. resc:lt'ch re proper role of OWHC with respect to prc·inaugural issues with an
aim tow<'lrd <'lr1iculaling principles for detcrminiilg who should be principal
spolccspcr"..on on a particular issue :u1d the e~'lenl to which cac:h (pm"llte
counsci/OWHC) should par1ic:ipate.
WJC LIBRARY- PHOTOCOPY
�.·
3. Foster Document Handling
bldcpendcnt counsel inqujry
L Sd meeting with Starr
L
(}) identify options with respect to issaanc= o(rqiOrt
(a) precedents
(2) inquire about status and timing
(3) HRCIWJC depositions
ii. status check with counsc:l for individuals
b. congressional hearings
i. identify likely committees (Se:nnte Banking; House Banking. Gov Cps.
Iudicl.ary} ·
(1) identify friends-key Members and staff
(2} identify leadership
(3) idc:ntify key republicans
iL congressional visits
{1) Oaschlc
(2) Sarbanes & o1her Banking
(3)Housc
iii Prepare background materials
{1)
Assemble public record
(2.) Talking points nnd fact memomnda
iv. De1ermine how to handle repn:senUltion of individual White Ho·usc staff
(1) outside counsel
(2) attorney fees
· (3) assertion of privileges
c. press st.r::ttegy
d. smTOgatc role ·
LHaznilton
ii. Identify others
e. offensive research
f. issue specific tasks
L Security/Livingstone issues ~
l. Debrief Joel ,
l Review Livingstone file
3. Consult with ~dy 'l'uZk
4. Interview Li~gstonc
WJC LIBRARY PHOTOCOPY
�•
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5. Fact memo
ii. Inconclusiveness rc Willliuns n:mavai of tlucuincnts
1. confet with Ed Dennis
2. debrief Joel re sccnrity officer
3. assemble public reports of document
·
removal an 7120 and statements
attributed to White House officials
iii. ~in of custody rc transfer of Clinton personal .files
l. complete interviews
a. Carolyn Huber
b. Linda Trip
~ Deborah Gorllam
d. Bob Barnett
c. Syl'{ia Mathews
2. fact memo
3. assemble public record
4. determine str:ltcgy re release of woe file
iv. search of Foster office
I. assemble public n:cord
a. rncluding any relevant testimony at Senate hcarill£ afFostcr suicide in July
1994
2. fact memo
J. legal rcsc:trch
a.
obligation to seal the office immediately
b. oblig:nion to coopcr.1tc with ~w enforcement :1uthoritics vs. protection of
privileged material
c. basis for protccti.nc disclosure to Congress of privileged materinl in VF office
i. Basis for resisting identification/production of all documents in V'F omcc and
Bernie's safe
d. delay in surfacing suicide note
(I) complete interviews
(a) Gergen
(b) Burton
(2) assemble material in public record
(3) fact memo
(4) lcsal research
(a) oblig;uiana
HJ
diRc:losc n note to lnw cn1"or"Camw1l authorities
WJC LIBRARY PHOTOCOPY
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i. if not obviotL~Iy a suicide note
ii timeliness requirements
4. Foster suic:ide
a. Chris Ruddy/Center for Western Jownalism
b. causes for su.icide
c. monitor Sen::~tc: report; coordinate with Ratnillon
d. develop press response
5. Obstruction of Justice
a. Delay in addressing criminal referrals; DOJ role (D.C. ;md Paula Casey)
i. clctcnninc usual process
·
ii. develop c:hronologylfact memo with key documents
I. Char.lcs Banks
2. Paula Casey
3. (track Lewis correspondence released by Leach)
iii. identify Committee interest (D'Amato; House)
iv. assemble public: record
b. RTC/K.ansas City investigation (SilSpension of Jean Lewis, Richard Iorio etc.;
April Brcs~w; pre-1993 activity)
l develop chronology of known facts and k.cy documents
ii. interview Breslaw
iii. identify Committee interest (Leach; Sen::~tc)
iv. examine last day of House hc:uings for offensive help
c. Jay Stephens retention
l track public record
ii. identify efforts to give rc civil jurisdiction
iii. identify Committee interest (D'Amato; House)
6. White Housc/l'rcasury contacts
a Senate Report
L n:viaw/coounent on Report
il. kc::cp in touch with Minority Report devclopmcnts
tii. prepare press str.ucgy
iv. identify surrogntcs
b. White House invcsti~lion of White HouscfTrc:tsury c:ont:u:t."' (receipr of
fnfonn:~tion :1bout RTC investigation~ work product; redactions)
i. prepare file memorandum dcscn'"binr: usc of unrcd.1ctcd trnnscripts
ii. detcm1inc continuing Bend interest
WJC LIBRARY PHOTOCOPY
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c:. T.ruth.fulDCSS of White House and other Admini.st.ration witnesses (refcnal or
tc::stimony to Starr- Ickes. Stcphanopoulos)
·.
l consult witb lawyers
iL identify areas of vulocrability
iii. research re pctjury
iv. press response
d. Heads-up policy
£ surrogates
H. uniform application
iii.. Treasury status
iv. press strategy for release of Committee report
v. work up backgroWldpapcr on precedents
e. Recusal policies/OGE/E."{ccutive Orders
L press str:uegy far release of committee report
iL background paper
iii. consult with OGE
iv.. consider Execmivc Order or other response to CommiUcc
f. Contacts policy (Executive Order)
i. press strategy for release of Committee report
ii background paper
iii. consult with OGE
·iV. consider E.'Cccutiyo Order or other response to Committee
g. Rikki Tigert
i. Determine her first likely c:ongrcssionnl appc:ruuncc in the new c:ongrcss
H. assemble public record
iiL intcn·iew Oc.rgen, Tigert and Klein rc contmunications on the subject of
·recusal
·
·
(1) detcnnine re.-ponse to allegnlions of "pressure,.
(:Z) dctenninc n:sponsc to allegation that Klein misled the committee ·
iv. Determine press str:ltegy/talking points
7. SmaJtz Investigntion
a. Espy - ethics (Mills)
b. beyond Espy ethics (Rarch Act, Tyson's)
i. determine charter, scope of inquiry
ii. dctcrrninc press strategy
W. identify congressional inlercst
iv. assemble public record
. v. fact gnthering
8. While Housc WbitC'ovarc:r response elTon.
WJC LIBRARY PHOTOCOPY
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a. legal research
l the appropriate role of White House sWT with respect to issues mising .
pro-inaugurntion (sec above)
b. fact development (scope of effort. etc.)
. · c. deterntinc press strategy/develop taJking points
d. assemble public record
i Lindsey involvement prc-1994
ii. Ic:kc:s' Ward Room undertaking (1/94)
. iii. Podesta d.amngc conJ..rol effort
9. Cisneros
-
a gather facts
b. e:stab lish contact with counsc)
c. determine press strntcgy/deo.·clop tnfking points
d. identify source of congressional interest
e. assemble binder with summary and key documents
10. Brown
· a. establish contact with counsel
b. dctcnninc press st.rntegy/dcvclop talking points
c. identify source of congressional interest
d. assemble binder with summary and key documents
11. Hubbell
· a monitor cooperation
b. detcnninc press strategy/develop talking points
12. rckcs (union representation}
·a. monitor
b. assemble binder with surnmnry and key documents
IJ. Slc:phanopoulos (Nationsbank)
a. monitor
b. assemble binder with summary and f<cy documents
14. State Department (passport files)
a. identify issue
b. determine congrcssion::ll interest
c. assemble binder with summary and key documents
13. Archives (abuse of personnel system)
WJC LIBRARY PHOTOCOPY
�a. Identify issue
b. determine congressional interest
·c. assemble hinder with S'1lDl11W"Y and key documents
S\~--
16. SBA (improper electioneering)
a. identify issue
b. detcnnine congrcssiotml intc:rcst
c. assemble binder with summary and k.c)' ~ocumcnts
17. GSA (Roger Johnson)
a. identify issue
b. dctcrnunc congression:ll intc:rcst
c. assemble binder with sununmy and Tccy documents.
18. FEC Audit
a determine congressional interest
b. assemble binder with summary and key documents
19. PIC Surplus
a. identify issue
b. determine congressional interest
c. assemble binder with summary and key documents
20. MGSL-related
a.·Whitcwater Investment
i. assemble public record
ii. review documents. including work of accountants o.nd tax returns~ Lyons
reports
iii. develop ract memo and chronology
iv. press strategy
b.MGSL
i. assemble public record
ii. review W&C documents
iii. develop (act memo and chronology
iv. fact memo
(I) why MHGSL failed; relationship of c:!mpnip contn1mtions to failure
(2) Rose Law Firm wor:k (HRC 1985)
a. Conflicts
b. Enabled MGSL to stay open longer than It should have
v. surrogate str.:ltegy
c. Rose L:~w Firm
WJC LIBRARY PHOTOCOPY
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i. fact memo
..
(1) status of con11icts inquiry
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. (2) Frost case
·.
(3) Rose services to FSLIC related to Las::ner brokerngc firm (HRC 2 hours in
1987, signed pleadings for VF)
(4) Billing practices
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ii. assemble public record
iU. dctenninc press strategy
d. David Hale
21. Otlter Prc·Inaugurnl
a. Gubernatorial Campaigns
i. Identify issues
.
(I) whether c:'<penditun::.s and loans were properly reported under st<~te taw
(a} Lindsey role
(b} Betsey Wright
(2) role of Lhc Bank of Cherry Valley
(3) Starr looking at 1984, 1986, 1990
ii. interview Kendall; review Kendall documents
iii. interview Snyder/Lindsey
iv. fact memo
. v. press strategy .
b. Negntivc Associations
i. nm Guy Tucker
ii. David Hale (SBA)
iii. nm McDougal
iv. Dan Lasater (bond de:lls..
coc:~inc:.
Roger Ointon) ·
c. Mena Airport
lldentify issue
ii. determine <::ongression::tl interest
iii. assemble binder with summary and key documents
d. ADFA
i. identify issue (political favors)
ii. determine congrcssiooal interest
iii. assentble binder with summary and key documents
e. Use by Governor Clinron oC loans to fW1hcr legislative inili.:nives
i. ldenlify issue
ii. determine c:on·grcssional lntcrc:st
WJC LIBRARY PHOTOCOPY
1
�iii. assemble binderwitb summary arid. key documents
f. Commodities
i..' d.etcnninc congressional intcrc:st
ii. assemble binder with summary and key documents·
g. Paula Jones
i. assemble binder with summary and key docuntcnts
h. Troopers
l identify issue Gob for silc:nce,. other)
ii determine congressional interest
iiL assemble binder with summary and key docunu:nts
Copyright() 1996 Dow Jones & Company, Tnc. Ail Rights Reserved.
-····-' .
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WJC LIBRARY PHOTOCOPY
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�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTfi'ITLE
-UOU.OJ.,L.-1mEBeemmee.-----:l}~.hic.dicdiHee1t:Oonn-ttoo-SSitotock;-RE.
Moores' home telephone nutliber (pat tial) (1
RESTRICTION
07/19/1994
P6/bE6)
08/25/1994
P5
09/18'1994
P6fo(6), b( !)(E)
n.d
P6/b(9)-
n.d.
P6fo(6)
page) ·
Nancy H to Ann Stock; RE: Yeltsin Dinner (1 page)
002. memo
RE: Personal telephone nwnbers and message (1 page)
004.memo
'-RE. Home addresses [pat tial] (3 pages)
005. list
Slg
COLLECTION:
Clinton Presidential Records
Counsel's Office
Shelli Peterson
OA/Box Number: 13462
FOLDER TilLE:
Whitewater Production- Mannatt and Moore: Miscellaneous
Debbie Bush
2006-0320-F
db806
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclo_se trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(bX3) of the FOIA]
b(4) Release would disclose trade secrets or.confidential or ·financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
fmancial institutions [(b)(S) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b )(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
I
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WJC LIBRARY PHOTOCOPY
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�MEMORANDUM
TO:
ANN STOCK
FROM:
RE:
NANCY H
YELTSIN DINNER
8/25/94
Mark Middelton feels very strongly that both St~e Green and John
Moores should be invited to the State 'Dinner. 'they have done an
incredible amount for us and may have to be called on again.
Please give them very serious consideration for this event.
I
~ould
only invite celebrities who have done things for us.
These are the ones I think should be invited who are on your
list.
(i.e.
those other than Members of Congress staff State
Dept. Officials and Cabinet officials.
I
1
1
C.
REDACTED
John and Becky Moores
· IlUll U\111 \\Ill \\Ill \lUI 1\111 \Ill\ \Ill lUI
z 002846
WJC LIBRARY PHOTOCOPY
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
RESTRICTION
DATE
SUBJECTmTLE
AND TYPE
OOI.memo
Marsha Scott to Bo Cutter and Sandy Berger; RE: APEC (1 page)
P5
09/2211994
51<1
COLLECTION:
Clinton Presidential Records
Counsel's Office
Shelli Peterson
ONBox Number: 13462
FOLDER TilLE:
Whitewater Production- Lippo and Subsidiaries: APEC
Debbie Bush
2006-0320-F
db2043
RESTRICTION CODES
Presidential Records Act • (44 U.S.C. 2204(a)]
Freedom of Information Act- (5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating' to tbe appointment to Federal office [(a)(2) of tbe PRA]
P3 Release would violate a Federal statute ((a)(3) oftbe PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of tbe FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of tbe FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) oftbe FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) oftbe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
fmancial institutions [(b)(8) of the FO lA]
b(9) Release would disclose geological or geophysical information
concerning weUs ((b)(9) oftbe FOIA)
C. Closed in accordance witb restrictions contained in donor's deed
of gift.
PRM. Personal record misf'lle defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
I
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l
\1111"
!
:' :
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'
I
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'
�THE WHITE HOUSE
\
WASHINGTON
MEMORANDUM TO:
CC:
BO .CUTTER
SANDY BERGER
MACK MCLARTY
BRUCE LINDSEY
FROM:
DATE:
SOBEJCT:
(
MARSHA SCOTT
SEPTEMBER 22, 1994
APEC
Even though the President is not the host of APEC, there is need
for coordination with all of the entities who are going to be
present from the United States. Will Ito received the memo from
Vida Benevides of the DNC about having Ron Brown lead an
independent delegation. She proposes that we host various
briefings and receptions following a model we adapted for the
· Seattle APEC. There is also a. delegation from Arkansas to be
lead by Senator David Pryor and Governor Jim Guy Tucker. Among
his friends included in that group will be Jim and Diane Blair
and Curt Bradbury.In conjunction with that state delegation,
there will also be a large number of business representatives and
friends of the President such as Webb Hubbell, Mark Grobmeyer and
spouses, who will be present as invited guests of the"Indonesian
hosts or their friends (i.e~ James Riady).
When James Riady was here last week for a brief visit with the
President, he {James) made three requests:
1. He.wanted to be allowed to see the President and have
access during the APEC trip. The President said, "sure,
anytime."
.
2. He asked that the President visit his father's home for
a brief visit or drink.
3. He suggested that the President stop and play golf in
Bali after the conclusion of APEC. The Bali cou:t;"se is rated one
of the five best in the world. Needless to say this was a
welcome suggestion.
I understand the need to downplay our official presence since we
are not hosting this conference. However, it is imperative that
we take control of the side meetings that are being arranged and
going to occur, so that we can minimize the President's exposure
to potentially embarrassing situations. I, of course, would love
to be involved because I do know all of these folks. However, I
will work with anyone you assign.
I did speak briefly to the President about what I knew to be
going on and asked him to give you direction. Please help him to
follow up on this. Thanks ...
111111111111111111111111111111111111111111111
WJC
LhBR~~~2 ~~0TOCOPY
�- - - - - - - - - - - - - - - - - ·-·-·--···--------
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. list
·
002.memo
DATE
SUBJECTfflTLE
RESTRICTION
North Gl!ifta Pe~ret Group; RE· Dates-ofbir:th,-4lasspertnumbers, an:-d
S~t tpeftial) (1 page)
rt:d:
1?9/b(~
John E. to Veronica; Craig; Antonella; RE: Asian Pacific
Appointments (1 page)
05/23/1994
P5
GY:03;.;..-firei*!StlB'ii:IB'!!ee----,~ate-efBirth,
SSN, home add:tess, and-hoiEmtee----(')610871995
5t:f;<O
P676(6)
telephone nmnber (partial) (1 page)
01(:l044~.rf'l:e~SlH:I:ittlmee:---...JP!;!Ae::tteJett:...AA~AJ.elexaader;-R:E: Home address, terephone mnnber, date of
.bffih; and SSM (parda1) tz pages)__
n:d.
P6fo(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Shelli Peterson
ONBox Number: 13462
FOLDER TITLE:
Whitewater Production - Lippo and Subsidiaries: Miscellaneous
Debbie Bush
2006-0320-F
db808
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)}
Freedom of Information Act- [5 U.S.C. 552(b)J
PI National Security Classified Information [(a)(l) of the PRA}
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a J1ederal statute [(aX3) of the PRA)
P4 Release would disc:lose trade secrets or confidential commerCial or
fmancial information [(aX4) ofthe PRAl
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of ·
personal privacy [(aX6) of the PRA}
b(l) National security classified information [(b)(l) ofthe FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(bX3) ofthe FOIA}
b(4) Release would disclose trade secrets or confidential or fmancial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose.information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disdose information concerning the regulation of
fmancial institutions [(b)(8) of the FOIA}
b(9) Release would disclose geological or geophysical information
concerning wells [(b X9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM.. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�'-.: :..
To:
nica; craig; Antoneila
n E.
:~·~ :
ay 23, 1994
Re: Asian Pacific Appointments
-~ ~ (.
'.:
-~
. •.
~
:
J
We are getting heat, especi8.'11y...r.fro,n;;_cali:fo:r-ni~,: on,.our. i. i .· ..... ,
record of Asian Pacific Am.erican··.:appointees.l.·:· Severa-l· that··ar:e -.of<.
,importance are:
· ·': . ,,. .. ,, ··' ..... _.
Redacted
.
~
. ,
.: . I
John Huang, who is, I believe, ·in· the; .process.,somewhere <for
a job at Commerce (he is a friend .of the .POTUS, . too.).:
,
· .....
These appointments would get·!.:US:-~ood,,!~bang·. for '"thELlbqok"•.:·; ,·;; .·.,;
within the community.
·Thanks:~
. .. . ..
......
cc: Alexis
Herman;~Matsui ··
·..,., ~ .,
~
;.
,-
c
•
(
'I IIIII lllllllllllllllllllllllllllllllllllllll
z 005731
WJC LIBRARY PHOTOCOPY
�
Dublin Core
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Previously Restricted Documents
Date
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1993-2001
Description
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<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
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397 folders
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2006-0320-F - Whitewater [Part 3]
Identifier
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2006-0320-F
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Previously Restricted Document Release no. 7
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Adobe Acrobat Document
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