[House Hearing, 106 Congress]
[From the U.S. Government Printing Office]




                               before the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION


                             JULY 27, 2000


                           Serial No. 106-242


       Printed for the use of the Committee on Government Reform

  Available via the World Wide Web: http://www.gpo.gov/congress/house


73-168                     WASHINGTON : 2001

 For sale by the Superintendent of Documents, U.S. Government Printing 
Internet: bookstore.gpo.gov  Phone: (202) 512-1800  Fax: (202) 512-2250
               Mail: Stop SSOP, Washington, DC 20402-0001


                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       ROBERT E. WISE, Jr., West Virginia
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
STEPHEN HORN, California             PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida                PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia            CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, Washington, 
MARK E. SOUDER, Indiana                  DC
JOE SCARBOROUGH, Florida             CHAKA FATTAH, Pennsylvania
    Carolina                         ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia                    DANNY K. DAVIS, Illinois
DAN MILLER, Florida                  JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
LEE TERRY, Nebraska                  THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois               HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California                             ------
PAUL RYAN, Wisconsin                 BERNARD SANDERS, Vermont 
HELEN CHENOWETH-HAGE, Idaho              (Independent)

                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
                     James C. Wilson, Chief Counsel
                        Robert A. Briggs, Clerk
                 Phil Schiliro, Minority Staff Director

                            C O N T E N T S

Hearing held on July 27, 2000....................................     1
Statement of:
    Manuel, Philip R., president, Philip Manuel Resource Group; 
      Rebekah Poston, partner, Steel Hector & Davis, Miami; and 
      Richard Lucas, former consultant to the Philip Manuel 
      Resource Group.............................................     8
    Schmidt, John R., former associate attorney general; Rebekah 
      Poston, partner, Steel Hector & Davis, Miami; John Hogan, 
      former chief of staff to Attorney General Reno; and Richard 
      L. Huff, Co-Director, Office of Information and Privacy, 
      Justice Department.........................................    86
Letters, statements, etc., submitted for the record by:
    Burton, Hon. Dan, a Representative in Congress from the State 
      of Indiana:
        Exhibit 18...............................................    57
        Exhibit 19...............................................    39
        Exhibit 31...............................................   142
        Exhibit 36...............................................   136
        Exhibit 37...............................................   105
        Exhibit 51...............................................    42
    Horn, Hon. Stephen, a Representative in Congress from the 
      State of California:
        Exhibits 48 and 50.......................................    49
    LaTourette, Hon. Steven C., a Representative in Congress from 
      the State of Ohio:
        Exhibit 6................................................    84
        Exhibit 15...............................................    61
        Exhibit 21...............................................    63
        Exhibit 32...............................................   108
        Exhibit 38...............................................    70
        Exhibit 39...............................................    72
        Exhibit 47...............................................   114
    Wilson, James C., chief counsel, Committee on Government 
        Exhibit 9................................................    22
        Exhibit 30...............................................    96
        Exhibit 41...............................................    12
        Exhibit 42...............................................    14



                        THURSDAY, JULY 27, 2000

                          House of Representatives,
                            Committee on Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 11:35 a.m., in 
room 2154, Rayburn House Office Building, Hon. Dan Burton 
(chairman of the committee) presiding.
    Present: Representatives Burton, Morella, Horn, LaTourette, 
Chenoweth-Hage, Waxman, Owens, Norton, Cummings, and Kucinich.
    Staff present: Kevin Binger, staff director; James C. 
Wilson, chief counsel; David A. Kass, deputy counsel and 
parliamentarian; Nicole Petrosino, professional staff member; 
Kimberly A. Reed, investigative counsel; Kristi Remington, 
senior counsel; James J. Schumann, counsel; Robin Butler, 
office manager; Michael Canty, legislative aide; Maria 
Tamburri, assistant to chief counsel; John Sare, staff 
assistant; Phil Schiliro, minority staff director; Phil 
Barnett, minority chief counsel; Kenneth Ballen, minority chief 
investigative counsel; Kristin Amerling, minority deputy chief 
counsel; Michael Yeager, minority senior oversight counsel; 
Ellen Rayner, minority chief clerk; and Jean Gosa and Earley 
Green, minority assistant clerks.
    Mr. Burton. Good morning. A quorum being present, the 
Committee on Government Reform will come to order.
    I ask unanimous consent that all Members' and witnesses' 
statements--written opening statements be included in the 
record; and, without objection, so ordered.
    I ask unanimous consent that all articles, exhibits and 
extraneous or tabular material referred to be included in the 
record. Without objection, so ordered.
    I ask unanimous consent that the majority staff report 
about this hearing be included in the record; and, without 
objection, so ordered.
    I ask unanimous consent that a set of exhibits which was 
shared with the minority prior to the hearing be included in 
the record; and, without objection, so ordered.
    I also ask unanimous consent that questioning in this 
matter proceed under clause 2(g)(2) of House rule XI and the 
committee rule 14 in which the chairman and ranking minority 
member allocate time to members of the committee as they deem 
appropriate for extended questioning, not to exceed 60 minutes 
equally divided between majority and minority; and, without 
objection, so ordered.
    First of all, I want to apologize for the delay. This was 
not anticipated. We had, I don't know, six or seven votes on 
the floor; and, for that, I apologize. It was something that 
was unavoidable.
    Sometimes when you are involved in a congressional 
investigation you come across things that you don't expect. You 
start investigating one subject, you stumble onto something 
else, and it is important.
    In 1996, during our investigation of the White House Travel 
Office firings, Filegate was uncovered. We discovered that the 
White House had ordered FBI files on hundreds of Republicans. 
So we looked into that.
    In 1999, when we immunized Johnny Chung, we discovered that 
an official at the United States Embassy in Beijing was selling 
visas. So we looked into that.
    This is a healthy process. Problems are exposed to the 
light of day, they get the attention they deserve, and 
hopefully they are corrected.
    Today, we have a similar situation. We were investigating 
illegal fundraising activities in Florida. They involved the 
Castro family of Venezuela and a lawyer named Charles Intriago. 
In the process, we uncovered another matter that deserved our 
    This is a very unusual story. It starts with an obscure 
dispute between two Buddhist groups in Japan. The story then 
shifts to Miami, where an influential friend of the Attorney 
General is hired. Then we have private investigators getting 
confidential criminal records from the Justice Department or 
Justice Department sources. Then we have a furious lobbying 
campaign aimed at the Attorney General's office. And at the end 
of the story we have the Associate Attorney General overturning 
decades of Justice Department precedent to reveal whether the 
Justice Department knew if a Japanese citizen was arrested in 
Seattle in 1963.
    Laws were broken. Favors were done. Policies were ignored.
    Now, political favors are nothing new. It happens in 
Congress. It happens at the White House. It's an unfortunate 
fact of life in this town. But if there's one place where 
political favors should not happen, it's at the Justice 
Department. And if there is one thing that shouldn't be handed 
out to political friends, it's criminal records of other 
people. That's why this story is important.
    We've interviewed a number of people. We received a lot of 
documents. I'm going to briefly summarize the story as I 
understand it.
    There are two Buddhist organizations in Japan. They had a 
falling out. The leader of one group was accused of soliciting 
a prostitute in Seattle in 1963. He filed a defamation lawsuit. 
It is now a bitter, bitter feud with a lot of money at stake.
    One key to this whole case was whether any documentation 
could be found that this man, Nobuo Abe, solicited a prostitute 
over 30 years ago. One side hired an American lawyer. Not just 
any lawyer, a friend of the Attorney General, Rebekah Poston, 
from the Attorney General's old law firm in Miami.
    Ms. Poston hired two private investigators. Their job was 
to get someone in the Justice Department to look up this 
information in the National Criminal Information Center, the 
NCIC, data base and leak it to them. According to their memos, 
which we have reviewed, they were successful. According to 
their own memos, they got sources at the FBI to give them the 
information. One of the investigators, Richard Lucas, sent Ms. 
Poston a memo that said the following: ``a source was contacted 
and provided the following information: The source relayed that 
under the data provided there was a reference to solicitation 
of prostitution, Seattle Police Department, March 1963.''
    Ms. Poston then sent a letter to the other client that said 
this: ``PMRG, the private investigators, reported to us on 
November 17th, 1994, that a source within the U.S. Government 
in Washington, D.C., was contacted and the source confirmed 
that there is a record for Nobuo Abe.''
    The problem is that that's against the law.
    So Ms. Poston decided she'd try to get the information 
legally so she could use it in court. She filed a Freedom of 
information Act request. She was denied. It's against the 
Department's policy to give out criminal information from the 
data base or to even confirm or deny whether these records 
exist. She appealed it. Again it was denied.
    At this point, she decided to take matters right to the 
Attorney General's office. According to her billing records, 
she contacted high-level Justice Department officials 22 times 
in the first half of 1995. Most of those contacts were with the 
Attorney General's chief of staff, Mr. John Hogan. As a result, 
she got a meeting with Associate Attorney General John Schmidt.
    Mr. Schmidt was advised that there is a long-standing 
policy not to confirm or deny the existence of any information 
in the National Criminal Information Center data base. Mr. 
Schmidt overrode that policy and ordered his staff to give the 
information to Ms. Poston.
    Interestingly enough, it appears that by this time the 
information had been deleted from the data base; and that issue 
remains a mystery to this very day.
    In my view, there are three problems here.
    First, the third highest official at the Justice Department 
made a decision to disregard an important policy, one that 
protects the confidentiality of law enforcement records, for no 
better reason than that a well-connected lawyer wanted it.
    Two, Justice Department employees were leaking criminal 
records--not once, not twice, but three times--in violation of 
the law.
    Three, the FBI was informed of this fact, and they refused 
to investigate. One of the two private investigators, Mr. 
Richard Lucas, went to the FBI and offered them all of the 
information, information that was incriminating to himself. I 
have copies of three letters from the FBI refusing to even look 
into it. For some reason, Mr. Lucas wasn't even interviewed.
    I will say this about Mr. Lucas. I don't condone what he 
did. I think he made mistakes. But at least he came forward and 
admitted what he did. He has cooperated with this committee, 
and it isn't every day that we get that kind of cooperation.
    Now, one might look at this and say, what's the big deal? 
On the surface, this may seem like a fairly insignificant 
event. After all, this committee has published Justice 
Department documents on its Web site. Well, the reason for that 
is that this committee has oversight responsibilities. We have 
an obligation to oversee the executive branch on behalf of the 
American people. If we believe that laws aren't being 
faithfully executed, it is our job to look into it. When we 
find wrongdoing, it's our job to inform the American people.
    That's not what Rebekah Poston was doing. She was paid to 
dig up dirt on a foreign national.
    Even with all of our responsibilities, getting information 
out of the Justice Department is like pulling teeth. I wish I 
had a dollar for every time a Justice Department official told 
me they couldn't confirm or deny anything or something. I have 
sat through briefings where it seems like that's all they 
said--because of this same policy.
    Here's why this is important: The Justice Department is the 
guardian of sensitive criminal records. Those records are in 
the data base to assist law enforcement agencies all over the 
country. It's for law enforcement purposes and law enforcement 
purposes only. It's not there for influential lawyers who have 
contacts and want to dig up dirt on people for lawsuits.
    The public has a right to expect the Department to protect 
sensitive law enforcement information. But when Justice 
Department employees give out information to private 
investigators for nefarious purposes, that trust is eroded. 
When senior officials set aside long-standing policies for the 
privileged few, that trust is eroded.
    The Justice Department is one of the most powerful 
institutions in this country. They have the power to prosecute 
people and put them in jail. They can force people to run up 
hundreds of thousands or millions of dollars in legal bills. 
The one thing that the Justice Department must have, beyond all 
others, is the public's trust. The actions of the Department 
must be above reproach.
    So while this may not seem like the most significant event 
in the world, its ramifications are very real. In this 
instance, the target was a religious leader from Japan. The 
next time, it could be any one of us.
    Ms. Poston is here today. She has met with committee staff. 
She has answered some questions. She has refused to answer many 
others. We've been informed that she may exercise her fifth 
amendment right not to testify today. I hope that won't be the 
case. We have questions that we want to ask, and I hope we can 
get some of these answers.
    The two private investigators employed by Ms. Poston are 
also here, Mr. Manuel and Mr. Lucas. They will also testify 
along with Ms. Poston.
    On the second panel, we have Mr. Schmidt, Mr. Hogan and the 
Director of Department's Office of Information, Mr. Huff. Mr. 
Huff interrupted a family vacation to be here today, which I'm 
sure he didn't want to do, but we do appreciate his attendance.
    We look forward to receiving testimony from all of you.
    I now yield to Mr. Waxman for his opening statement.
    Mr. Waxman. Thank you, Mr. Chairman.
    What a difference a week makes. Last week, this committee 
had a hearing criticizing the Justice Department for not giving 
out information, not giving out a deposition of the Vice 
President, which it could not give out by law because it was an 
ongoing investigation. This week, we're criticizing the Justice 
Department for giving out some information, presumably.
    I won't make a long opening statement. I just want to point 
out that this committee is in a perpetual search for a scandal, 
any scandal that might attract attention. But I do want to 
point out that the Attorney General, Janet Reno, recused 
herself from the dispute that we'll focus on today. The 
Attorney General had no involvement in this dispute. The 
Justice Department official who handled the request, John 
Schmidt, made his decision without any pressure or instructions 
from others and based his decision on the merits and, in fact, 
no incriminating or damaging information was released by Mr. 
    With that, I look forward to letting the witnesses say 
whatever they have to say. But if you accept those facts--I 
know we have an oversight responsibility to look at all sorts 
of things, but if I were making up a list of priorities, this 
would be pretty far down the list.
    But I yield back the balance of my time--I don't want to 
take up any more time of the committee--and look forward to 
letting the chairman conduct the hearing.
    Mr. Burton. Thank you, Mr. Waxman.
    We'll now welcome our first panel to the witness table. 
Rebekah Poston, Philip Manuel and Mr. Richard Lucas, would you 
please stand and raise your right hands.
    [Witnesses sworn.]
    Mr. Burton. Have a seat. Before we allow our witnesses to 
make an open statement, Mrs. Chenoweth, would you like to make 
a brief opening statement?
    Mrs. Chenoweth-Hage. Thank you, Chairman Burton.
    I do want to thank you very much for holding this hearing 
today on this issue, and I am very glad that this committee is 
willing to investigate this important issue of the leakage of 
confidential law enforcement documents and possible favoritism.
    Now the responsibility for oversight into these issues is 
critical to the health and well-being of our very Republic. 
Centuries ago, Juvenal, a Roman philosopher, asked an 
interesting question that still rings true today. He asked, who 
will guard the guards themselves? The only answer to that 
question now seems to be that it is Congress itself that must 
conduct oversight into criminal matters, because the Justice 
Department completely ignores its duty.
    Mr. Chairman, this problem of confidential documents being 
leaked is not a new one with this administration. I am sure 
that all of us remember what happened when a Bush 
administration aid just looked at confidential documents of 
President Clinton during the 1992 campaign. She was summarily 
fired because of that. However, since that time, a disturbing 
trend has developed in this administration; and we saw it 
during the impeachment, when Kenneth Bacon illegally leaked 
materials covered by the Privacy Act regarding Linda Tripp. Now 
what happened to Mr. Bacon? Precisely nothing. And now are 
hearing disturbing charges that confidential law enforcement 
documents were obtained about a private citizen.
    So the most surprising thing is that it seems these 
illegally obtained documents were then used as the basis for a 
Freedom of Information Act request to attempt to obtain the 
very same documents legally. Now, I am not sure what to be most 
surprised about, the fact that it was possible to obtain 
confidential National Criminal Information Center documents or 
that someone would let it be known that they were using these 
illegal documents for a duplicative FOIA request. The facts of 
this case simply stun logic.
    Mr. Chairman, what is more troubling is that a personal 
friend of our Attorney General seems to have been involved in 
this effort to obtain confidential law enforcement documents 
through a FOIA request. After reviewing the facts of the case, 
it does seem that special consideration that was given to this 
FOIA request. And, amazingly, the Justice Department violated 
its very own internal policy to not comment on the existence or 
nonexistence of criminal records about foreign nationals. And 
then, when the Justice Department knew the security and 
confidentiality of the NCIC had been violated, it did nothing.
    Mr. Chairman, I am stunned. Because for the past few years 
the Justice Department would not seriously investigate the 
President, the Vice President, the former Commerce Secretary, 
campaign contribution violations, the misuse of religious tax-
exempt facilities, the misuse of Federal resources for campaign 
fundraising and the clear and completely blatant violation of 
the Privacy Act by Kenneth Bacon. Now the Justice Department 
won't even investigate a clear violation of the confidentiality 
of the NCIC when a witness involved in the felony made himself 
available to law enforcement.
    Mr. Chairman, the Attorney General should have resigned her 
position in disgrace long ago. She didn't have the decency to 
do it then, and I don't believe she'll do it now. It's hard to 
say it, but General Reno is representative of an administration 
that has operated outside of the law for virtually 8 years 
straight. The consistent and constant public trashing of anyone 
and everyone who opposes this administration is unbelievable. 
Releasing confidential information is nothing new in this 
administration either. Linda Tripp, Kathleen Willey, and Paula 
Jones are simply just the most high profile examples. However, 
we now see that this same pattern also descends to the level of 
releasing confidential information on a noncitizen.
    Mr. Chairman, if this pattern of conduct is allowed to 
continue with impunity, we are only a step away from becoming 
the type of nation where its citizens genuinely should fear 
their government. I am not one to compare this great Republic 
to the Soviet States, but I would note that the lack of respect 
for privacy and the use of confidential information to destroy 
people was very common there. An administration or government 
that starts down the path of using information like this 
against individuals is only a step away from tyranny.
    Thankfully, I know that our Republic has suffered worse 
crises. However, I fear that this may have a longer term effect 
than just this administration. When scandal and corruption is 
so blatant and common, people become used to it and acquiesce. 
I pray that we will not let this happen.
    Again, Mr. Chairman, I would like to personally thank the 
committee for taking the time to examine and provide oversight 
for these important issues today.
    Mr. Burton. Thank you Mrs. Chenoweth.
    Mr. LaTourette, do you have a statement you would like to 
    Mr. LaTourette. I will just take a couple of minutes, Mr. 
    Before my service here in the House, I had the pleasure of 
being the elected prosecutor in the county where I am from in 
Ohio, Lake County, OH. And at my desk was a terminal that was 
known as a LEADS machine but also tied into the NCIC, which is 
the National Criminal Information Center. And the purpose 
behind that computer was when you have a scofflaw brought to 
your attention you wanted to be able to punch in that person's 
identifying information to determine whether or not they had 
been involved in other criminal activity.
    But there were specific rules and regulations. We were 
licensed to use that terminal, and the reason is that 
information is designed to be used only for law enforcement 
purposes. It is not to be used for private purposes or civil 
lawsuit purposes. And, quite frankly, it was to help us know 
whether or not we were dealing with a real bad person or 
someone who had not run afoul of the law before.
    And what troubles me about this hearing--I mean, I really 
don't have--if the allegations that have been made in the 
chairman's opening statements are correct, Ms. Poston was hired 
by somebody to get information. I guess that's what private 
investigators and lawyers do.
    The thing that troubled me as I studied the materials for 
this hearing was, whoever it was at the Federal Bureau of 
Prisons that delivered information against Federal law and then 
dissemination of that information--and the reason it's 
particularly offensive here, because I indicated to you what we 
used the machine for, is that a lot of people don't understand 
the difference between someone being arrested for something, 
indicted for something, convicted of something, and the power 
to destroy a person's career, reputation and standing in the 
community just by dissemination of information that they may 
have run afoul of the law. And apparently in this case the 
information was erroneous, is a mess, and that's why we have 
rules and regulations.
    This is a very disturbing thing to me. And I guess what 
disturbs me--I am not quite as vocal as Mrs. Chenoweth-Hage is 
about this subject. But the thing that disturbs me is I 
received a phone call one time from the sheriff in our county, 
and he said I have got a buddy who wants to check on whether or 
not this neighbor who is playing loud music has ever been 
arrested for anything, and what do you think I should do?
    I said, well, you know, Dan--not Dan Burton; Dan Dunlap was 
the sheriff's name--Dan, if you use the computer for that, I am 
going to put you in jail. And we did, in fact, put corrections 
officers in jail who accessed the NCIC material to get dirt on 
ex-wives or neighbors or people down at the boat club that, you 
know, were acting in a rowdy way.
    So I'm troubled by two things that this hearing is about 
today. One is the release of this information; and, two, what I 
see--if, again, information has been brought to the attention 
of the Justice Department, that this has been done and nobody's 
done anything about it. So I will begin the hearing troubled, 
and I hope I leave the hearing not so troubled.
    I thank you and yield back my time.
    Mr. Burton. Why don't we just go right down the line there? 
Mr. Manuel, would you like to make an opening statement?

                     MANUEL RESOURCE GROUP

    Mr. Manuel. Yes, sir, if I may.
    Good morning--I should say now good afternoon.
    Mr. Burton. Well, I apologize for that, as I said.
    Mr. Manuel. Good morning, Mr. Chairman, Mr. Waxman, members 
of the committee. My name is Philip R. Manuel, and I am founder 
and president of the Philip Manuel Resource Group Limited. I 
would like to thank the committee for this opportunity to 
present my views on the information the committee has been fed 
over the past 3 years and on the source of that information.
    I have been an investigator in the public and private 
sector for more than 35 years. I have served as a counter- 
intelligence agent for the Army's 902nd Intelligence Corps 
Group, as an investigator for the House Internal Security 
Committee and as Chief Investigator for the U.S. Senate 
Permanent Subcommittee on Investigations; and for the past 20 
years I have run my own international financial investigative 
firm. Additional details regarding my background can be found 
on a resume which I sent to the committee at your request.
    Over the course of these 35 years, Mr. Chairman, I believe 
that I have acquired a reputation as an individual who is 
straightforward, honest and trustworthy. While the 
investigative industry is not for the faint of heart, I value 
my reputation for integrity and take great offense when that 
reputation is challenged.
    As we begin this hearing this morning, I would like this 
committee to understand several points.
    First, since I left the government and began private 
practice in 1979, I have never, under any circumstance, asked 
any employee of the Federal Bureau of Investigation or any 
other government agency to conduct a search of the National 
Criminal Information Center data base. I did not do so in the 
case of Mr. Abe, which is before this committee, or in any 
other case.
    Second, I believe that my denial in this regard can easily 
be established by this committee. It is my understanding that 
every time a name is checked in the NCIC data base there is an 
audit trail that's established and created which records the 
identity of the person whose records were sought, the date and 
time of such inquiry, and the identity of the person who made 
the inquiry. I am confident that during the period in question 
there is no record of any NCIC inquiry on this individual that 
can be traced to my participation in this case.
    Third, I believe this committee is relying on the 
representations of one of the most unscrupulous and deceitful 
individuals I have ever met in my entire life. I once trusted 
this person to run my Miami office. That was a mistake for 
which I have paid a dear price.
    During the time that this individual was running my Miami 
office, he stole and copied confidential client documents and 
tried to sell those documents to the highest bidder. And, in 
fact, in one case we received evidence that he did receive 
about $35,000 from one of our client's adversaries for 
confidential documents.
    He shopped his services as a paid informant to those 
government agencies that would let him in the door. He 
surreptitiously solicited business from my clients, breaching 
his contract with me.
    After 3 years of litigation with this individual, I won a 
judgment against him for his treachery. But, sadly, the story 
does not end there.
    I have now learned that this individual brought his bag of 
tricks to this committee and sold it a bill of goods. The 
stolen confidential documents and his spin serve as the basis 
for this hearing. In fact, he stole entire case files. I have 
not seen the case files he purloined, but I do know that the 
source of the documents is untruthful and a manipulator of 
facts, and whatever spin he puts on the file can only serve one 
purpose and that's furthering his own interests at the expense 
of everyone else.
    I thank the chairman for allowing me to read this 
statement, and I am prepared to answer whatever questions you 
may have.
    Mr. Burton. Thank you, Mr. Manuel.
    Ms. Poston.
    Ms. Poston. Yes. Good morning, members of the panel.
    Mr. Burton. Excuse me, Ms. Poston. It might be easier if 
you just pull the mic closer. They don't pick up sound as well 
as they should.
    Ms. Poston. Can you hear me sufficiently? Thank you.
    Good afternoon, members of the committee and to Chairman 
    As you all know, I am a member in the law firm of Steel 
Hector and Davis in Miami; and since about March 1999 I have 
been cooperating with this committee. My lawyer, Mr. Eduardo 
Palmer, has met with your investigative staff. We have provided 
documents at your request. To the extent we claimed privileges, 
we provided you privileged logs. We traveled voluntarily about 
3 weeks ago up here to Washington, DC, to meet with your chief 
counsel, Mr. Wilson and deputy counsel, Mr. Kass; and we spent 
several hours answering their questions within the confines of 
the privileges which my clients have required that I continue 
to assert on their behalf.
    I believe that this staff of this committee found my open 
cooperation and my testimony to be forthright with respect to 
the manner in which I answered the questions. I am hopeful that 
today I will be able, within the confines of the law, to do so 
for you, Mr. Chairman.
    Mr. Burton. Thank you very much.
    Mr. Lucas.
    Mr. Lucas. I have no statement Mr. Burton.
    Mr. Burton. You have no opening statement.
    Mr. Lucas. No.
    Mr. Burton. OK, we'll now proceed under the rules that were 
accepted by the committee and have counsel, Mr. Wilson, start 
the questioning.
    Mr. Wilson. Good afternoon, all, again. Sorry for the long 
    I want to go over some documents. We have provided you with 
exhibit books that are in front of you, and at certain times I 
will refer to certain exhibits. We can put them up on the 
screen, and I will ask you to take a look at them as we get to 
    Ms. Poston, when we did meet with you--and we do appreciate 
your having come up--you informed us that you were a friend of 
the Attorney General, is that correct?
    Ms. Poston. That's correct.
    Mr. Wilson. And you also told us that your sister is a 
close friend of the Attorney General, is that right?
    Ms. Poston. Yes, that's correct. I would describe my 
relationship with General Reno as more of one of a professional 
basis but certainly a friend; and my sister's would be more of 
a personal and professional relationship.
    Mr. Wilson. And, in fact, your sister worked with the 
Attorney General when Attorney General Reno was the State 
Attorney in Miami, is that correct?
    Ms. Poston. Yes, that's correct.
    Mr. Wilson. Did she also run the Attorney General's 
campaigns for elective office in Miami?
    Ms. Poston. Yes, she did. She participated with other staff 
members in her campaign.
    Mr. Wilson. Mr. Lucas, just so we can set the stage here, 
can you give us a sense to the extent you know why the law firm 
of Steel Hector and Davis was hired in this particular case?
    Mr. Burton. Could you pull the mic closer, too?
    Mr. Lucas. I don't know the reason why the religious 
organization went to Steel Hector and Davis, other than Ms. 
Poston explained that for two reasons, one is that they were a 
good client--the religious organization was a very good 
client--she explained was a very client to the firm, and also 
that they needed someone who knew how to--how to access 
information that may be available to them through the Justice 
    Mr. Wilson. Ms. Poston, I don't want to belabor the 
obvious, but you hired the Philip Manuel Resource Group to 
obtain information about Mr. Abe.
    Ms. Poston. I did hire the Philip Manuel Resource Group. I 
think the purpose for which I hired them I would be precluded 
from answering, based upon the attorney-client work product 
    Mr. Wilson. OK. Well, I think we can get around that in a 
few places where certainly privilege is waived--now we'll get 
to this in a moment--in that Congress doesn't recognize 
privileges that you're asserting, but we'll get to that in just 
a moment. Mr. Manuel, did you ever contact any government 
sources to obtain information from the NCIC data base?
    Mr. Manuel. No, sir.
    Mr. Wilson. Did you contact anyone at the Justice 
Department to obtain information about Mr. Abe?
    Mr. Manuel. I contacted some people in the Justice 
Department for the purpose of finding out the facts and 
procedures surrounding how the NCIC operated.
    Mr. Wilson. And were your contacts limited exclusively to 
the procedural aspects of the NCIC data base.
    Mr. Manuel. I believe they were, yes.
    Mr. Wilson. Fair enough. Now----
    Mr. Manuel. And related subjects, but not seeking criminal 
data from them.
    Mr. Wilson. OK. Ms. Poston, did you ever prepare affidavits 
for Mr. Lucas and Mr. Manuel to sign in the Abe case?
    Ms. Poston. Just a moment, please. I will respectfully 
decline to answer that based on the attorney-client work 
product privilege.
    Mr. Wilson. Now, as we are aware, I believe that these 
affidavits have been publicly filed, affidavits signed by Mr. 
Lucas and signed by Mr. Manuel, is that correct?
    Ms. Poston. I have no knowledge as to whether they are 
public or not.
    Mr. Wilson. Do you have any knowledge of the disposition of 
any affidavits prepared by Mr. Manuel or Mr. Lucas?
    Ms. Poston. I don't know what you mean by disposition.
    Mr. Wilson. Well, I asked you whether you participated in 
the preparation of affidavits by Mr. Manuel or Mr. Lucas; and 
you declined to answer that question. But are you aware of the 
fact or the existence of affidavits in the Abe case signed by 
Mr. Lucas or Mr. Manuel?
    Ms. Poston. I am aware of the fact of the existence of 
    Mr. Wilson. OK. And are you aware that affidavits signed by 
Mr. Lucas and Mr. Abe were filed in a law case in Japan?
    Ms. Poston. Of that I do not know of my own personal 
    Mr. Wilson. Mr. Manuel, if you could--actually, we'll just 
back up 1 second.
    Ms. Poston, if you could take a look at exhibit 41, please, 
in the book that's in front of you.
    [Exhibit 41 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.125
    Ms. Poston. Yes.
    Mr. Wilson. This is a letter dated September 8, 1995. It's 
to Mr. Manuel and Mr. Lucas in this case. It's signed by 
yourself. It's on letterhead of Steel Hector and Davis.
    And in this letter, in the second half, you state, 
``Obviously, I cannot stress enough the importance of 
maintaining the confidentiality of these affidavits. They are 
protected by the attorney work product doctrine and privileged 
and confidential under the attorney-client privilege. 
Consequently, until the client waives the privilege by 
presenting them officially, we must not violate that 
    Do you recall drafting this letter?
    Ms. Poston. There's no question that's my signature.
    I must make it very clear to this committee that this is a 
confidential communication. Because when the investigative firm 
was hired, they were retained under the attorney-client and 
work product privilege.
    Shortly before, Mr. Wilson, you indicated that you were 
taking the position you don't recognize the privilege here; the 
committee does not. I must assert what I have been ordered to 
do by my client, which is to assert that privilege. So other 
than identifying my signature on this document, this is a 
confidential communication with the investigators that I 
retained under the privilege. My client has never waived that 
privilege, and so I must enforce it and not answer further than 
    Mr. Wilson. We'll return to that question in a moment.
    Mr. Manuel, if you could please take a look at exhibit 42, 
which is in the exhibit book in front of you; and if you could 
take just a second to look over the three pages.
    The first question I have, which I think doesn't require 
too much time, is there's a signature on page three of this 
affidavit and is this signature yours?

    [Exhibit 42 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.126
    [GRAPHIC] [TIFF OMITTED] T3168.127
    [GRAPHIC] [TIFF OMITTED] T3168.128
    Mr. Manuel. Looks like my signature. Looks like a copy of 
my signature.
    Mr. Wilson. Do you recall signing this affidavit?
    Mr. Manuel. I do.
    Mr. Wilson. You do. Could you tell us the circumstances of 
your signing this affidavit? Was it provided to you by Ms. 
    Mr. Manuel. Well, Mr. Wilson, I am advised by counsel that, 
being that Ms. Poston has asserted a privilege here, that I 
should not answer questions about this on the same grounds.
    Mr. Wilson. OK. If you would--this is not a question about 
the document, but could you please read sections 11 through 16 
inclusive of this document.
    Now you've had an opportunity to read it yourself, would 
you please read it out loud to the committee?
    Mr. Manuel. Starting with?
    Mr. Wilson. With paragraph 11.
    Mr. Manuel. As part of PMRG's investigation, I contacted a 
confidential and highly reliable source who I believe would be 
able to determine whether the Federal Government had 
documentary evidence.
    My source told me there was Federal Government record for 
Nobuo Abe which referred to ``Suspicion of Solicitation of 
Prostitution, Seattle Police Department, March 1963.''
    My source further told me that the record concerning Mr. 
Abe reflected that the Seattle Police Department had made an 
inquiry for information.
    My source also told me that if Mr. Abe made an official 
request for the information under his name to be removed from 
the record, it could be removed.
    Sometime later, my source informed me that the record 
concerning Mr. Abe apparently had been purged.
    I am confident that the information provided to me by the 
source is accurate and reliable.
    Mr. Wilson. Now, the first question, is this, your 
affidavit, your signed affidavit accurate?
    Mr. Manuel. It is not accurate. And if I had--if I had it 
to do over, I would not have written it that way or signed it. 
I don't remember reading--writing it, but I did sign it. Had I 
wrote it, I would not have written it that way.
    And what the committee needs to understand is that I did 
not have any confidential source in the Department of Justice 
who provided me this information. Rather, what happened was 
there was a series of contacts. I gathered a number of 
composite type information about the NCIC, and a lot of these 
conclusions were made by me. I never received any documentary 
evidence or any information directly from the NCIC. If the 
committee wants me to explain exactly how I arrived at these 
conclusions, I will be glad to do----
    Mr. Wilson. No, we understand that. But the puzzlement that 
we have over this is that you state--and I will read it more 
slowly than you did--unambiguously: My source told me that 
there was a Federal Government record for Nobuo Abe which 
referred to ``Suspicion of Solicitation of Prostitution, 
Seattle Police Department, March 1963.''
    It continues. It says, my source further told me that the 
record concerning Mr. Abe reflected that the Seattle Police 
Department had made an inquiry for information.
    The following paragraph says, and it's again unambiguous: 
My source also told me that if Mr. Abe made an official request 
for the information under his name to be removed from the 
record, it could be removed.
    And it continues: Sometime later, my source informed me 
that the record concerning Mr. Abe apparently had been purged.
    Now our concern here is that you provided us a statement 
yesterday and you very unambiguously told us this morning that 
your contact was exclusively limited to procedural aspects of 
the functioning of the NCIC data base. Now, we're faced with a 
difficulty here because, apparently--and we don't know this--we 
have a document, but it appears to be signed, appears to be 
dated, I believe it was notarized, and I believe it was 
submitted in a legal proceeding in Japan.
    Mr. Manuel. I don't have any knowledge of that. I don't 
know how it was used.
    Mr. Wilson. And I won't ask you that, because perhaps 
that's not fair. Why did you sign this--what was the purpose of 
this affidavit?
    Mr. Manuel. Well, first of all, this affidavit is dated 
about 5 months--I would say or 4 or 5 months after I ceased 
having any participation in this case. I believe the affidavit 
was caused--or it was requested because a lawyer on the West 
Coast had made some disclosure having to do with this case, and 
I am not more clear about that. Keep in mind, Mr. Wilson, 
you're asking me about things that happened almost 6 years ago; 
and I have nothing to refer to except what you have given me in 
the last couple minutes.
    There was--there was some pressure to sign this affidavit. 
They came mostly from Mr. Lucas.
    Mr. Wilson. If I could stop you there, it's my 
understanding that you are the head of the Philip Manuel 
Resource Group and that Mr. Lucas was your employee. Is that a 
fair understanding of your relationship? You were his boss man, 
than he was a contract employee who ran the Miami office?
    But let me just try and rephrase the question so it's a 
little clearer. Were you Mr. Lucas' boss?
    Mr. Manuel. Yes.
    Mr. Wilson. He was your employee.
    Mr. Manuel. He was my contract employee. He was not an 
employee of my firm. He was working under a contract between my 
firm and his firm to manage my Miami office and to market 
services out of that Miami office.
    Mr. Wilson. Well, I mean, from our perspective, somewhat 
artful a response, but could you have fired him?
    Mr. Manuel. I could not have fired him, because he wasn't 
an employee. I could have ceased doing business with him by 
canceling his contract.
    Mr. Wilson. And that's merely what I was getting at. So 
it's a little difficult for us to understand that you just 
mentioned you were feeling pressure from Mr. Lucas. Were you 
feeling any pressure at the time to be honest and forthright 
and accurate in your answers in a signed, sworn affidavit?
    Mr. Manuel. I felt a number of countervailing pressures. 
The No. 1 pressure was that I wanted to--and this is the ironic 
part of it--I was almost acting to protect the man who was in 
the process of stabbing me in the back. If you're talking about 
NCIC, the first--the first knowledge I ever had about the 
mention of NCIC came from Mr. Lucas. It was Mr. Lucas himself 
who told me, after he had accepted this case, that he was the 
one who had contacted NCIC and had received information from 
    Mr. Wilson. Well, no--I mean, we appreciate you told us 
that in the interview, but what we have here--we have now what 
you're telling us, but we have--from a time when your memory 
was fresher and a contemporaneous time, we have an expression 
of theoretically what the truth is. I mean, when one signs an 
affidavit, one has it notarized, dated, there's no ambiguity in 
terms of whether one should tell the truth or not. And so what 
we're faced now with is a difficulty of reconciling what you're 
telling us now with what you stated in an official document.
    Mr. Manuel. I understand your confusion. Like I say, if I 
had my life to live over, I wouldn't have written this 
affidavit this way. You may interpret it as being awkwardly 
written and maybe inaccurate. If that's the case, I am not 
going to dispute that.
    Mr. Wilson. Ms. Poston, based on all of the contacts and 
communications you have been involved in, did you have any 
reason to doubt the accuracy of this affidavit?
    Ms. Poston. I'm going to have to respectfully refuse to 
answer that question, again based on attorney-client privilege.
    Mr. LaTourette. Mr. Chairman, will the counsel yield to me 
for just a second? I don't know, that reminds me of 
pussyfooting around. I would like to ask a parliamentary 
inquiry, I guess, of the Chair on yielded time.
    Mr. Wilson made the observation that the attorney-client 
privilege isn't recognized by the U.S. Congress. If that's, in 
fact, the status of the law for witnesses brought before the 
committee, I guess I'm puzzled why these witnesses are 
repeatedly invoking the attorney-client privilege if it doesn't 
    If the witnesses are afraid that they are going to 
incriminate themselves, they certainly have the availability of 
the fifth amendment. But I think I would request, rather than 
going through a hearing and listening to people say they can't 
answer questions they are supposed to be answering, that they 
be directed to answer those questions unless they invoke a 
privilege that's recognized under the law by the Congress.
    And, if not, I'll have a further parliamentary inquiry to 
ask the Chair how do we hold somebody in contempt of Congress 
for not answering the questions that are put to them 
legitimately by the counsel of this committee?
    Mr. Burton. Well, you are correct. The privilege that she 
is asserting is not recognized by the Congress of the United 
States, No. 1; and, No. 2, we can move a contempt of Congress 
citation and press for prosecution if the witness chooses not 
to answer. And you're absolutely correct. If she feels like 
there might be self-incrimination, she does have the right of 
exercising her fifth amendment rights. So you've been duly 
informed of the rules of the Congress.
    Mr. LaTourette. I thank the chair and thank you, Mr. 
    Mr. Wilson. I'm going to move to the privileges that you're 
asserting in a moment, but what we want to establish here very, 
very clearly is, if this affidavit were used in any public 
fashion whatsoever, then the privilege--any privilege you might 
assert, even though we wouldn't accept them here, is waived. So 
it's important for us to understand, and I think you have 
answered this question, but my question wasn't precise. Do you 
have any knowledge of this affidavit being used in a public 
    Ms. Poston. I have no personal knowledge of this affidavit 
being used in a public forum.
    Mr. Wilson. Public forum is open to interpretation. In a 
judicial setting in Japan, do you have any knowledge of this 
affidavit being used in a judicial setting in Japan?
    Ms. Poston. I do not know if they were used or presented in 
evidence in Japan.
    Mr. Wilson. OK. Why did you obtain signed affidavits from 
Mr. Lucas and Mr. Manuel?
    Ms. Poston. Again, I am going the assert the attorney-
client privilege.
    Ms. Clow, my client--I retained investigators on behalf of 
Ms. Clow. As you know, Mr. Wilson, she has--she died of cancer 
several years ago. So we all know the Supreme Court in the 
Vince Foster case stated that the privilege survives the 
privilege holder; and, to my knowledge, Ms. Clow never waived 
her privilege with respect to these affidavits.
    Mr. Wilson. OK. So just if I can try and characterize where 
we are on this subject, you will not tell us anything about the 
affidavits other than you're aware of their existence.
    Ms. Poston. I believe that that's correct, that I cannot do 
    Mr. Burton. Let me just inform Ms. Poston, first of all, 
that you are directed by the committee to answer the question 
and you do run the risk of being held in contempt of Congress 
if you do not.
    The second thing is, I'd like to ask the question, when you 
appeared before Mr. Wilson and his colleague and were 
discussing these issues, did you indicate that you would take 
the fifth amendment before this committee?
    Ms. Poston. I did not, nor do I intend to do so.
    Mr. Burton. You did not say to our committee--to our 
counsel that you would take the fifth amendment?
    Ms. Poston. I did not, absolutely not.
    Mr. Burton. Did your legal counsel, your lawyers, indicate 
that you might take the fifth amendment?
    Ms. Poston. I'd have to defer to him. Because I believe 
when your staff had conversations with my counsel, I was 
    Mr. Burton. I ask unanimous consent that we allow the 
counsel to answer that question. Without objection, so ordered.
    Mr. Palmer.
    Mr. Palmer. Yes, sir.
    Mr. Burton. Did you indicate that Ms. Poston might be 
forced to take the fifth amendment if these questions were 
    Mr. Palmer. I had discussions with a member of your 
committee who spoke with me about these matters over the course 
of the last year and a half.
    Mr. Burton. I'm talking about when you were here, what, a 
few weeks ago.
    Mr. Palmer. Three weeks ago.
    Mr. Burton. Yes.
    Mr. Palmer. No, sir.
    Mr. Burton. When you discussed with them on the phone the 
issues in the last week, did you indicate that she might take 
the fifth amendment?
    Mr. Palmer. Members of your committee indicated to me that, 
in their view, the conduct at issue here could constitute a 
criminal violation; and we discussed all the privileges that 
would be applicable in that situation. I advised them that if 
that were the situation that, first and foremost, the 
information the committee sought would be protected by the 
attorney-client privilege and the work product doctrine.
    I also told them that if they believed that a witness had 
committed a criminal offense and they knew that from the 
outset, that it would be improper for--to force the witness to 
come before this committee merely to assert a fifth amendment 
    Mr. Burton. So you did indicate that Ms. Poston might under 
these circumstances assert her fifth amendment privilege.
    Mr. Palmer. I indicated exactly what I just expressed to 
    Mr. Burton. Thank you.
    Mr. Wilson. Now, I think we're going to find ourselves in 
the same dilemma here, but let us try and move through this as 
much as possible.
    Ms. Poston, if you could take a look at exhibit 9, please, 
in the book in front of you. And what we have here is a fax 
cover sheet from yourself--or at least the originator is 
Poston, a short message and an attached letter from a Mr. 
George Odano to yourself.
    And while you're looking at that I'll read the message on 
the fax cover sheet: Please get answers to as many of these as 
you can and be specific. This is a matter of serious 
importance. I hope because it is a Federal holiday that we can 
access the necessary research.
    The first question that comes to mind, the fact of a 
Federal holiday falling at a certain time, what did that have 
to do with attempting to find information?
    [Exhibit 9 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.038
    [GRAPHIC] [TIFF OMITTED] T3168.039
    [GRAPHIC] [TIFF OMITTED] T3168.040
    Ms. Poston. This is a communication between me and the 
investigators that I hired under the privilege. And I am very 
sorry I can't answer your question, Mr. Wilson, but I have to 
assert this privilege on behalf of my client.
    Mr. Wilson. Now, the one thing that you attached to this 
document, to the fax cover sheet, is a letter to yourself; and 
the very first question is, is the name on the NCIC file Nobuo 
    And consequently, if you look at the instructions, and this 
was provided to Mr. Lucas, the fax cover sheet, what you have 
said is, please get answers to as many of these as you can and 
be specific; and the first question is, is the name on the NCIC 
file Nobuo Abe? Now, from our perspective, you are asking your 
private investigator to obtain very specific information about 
what is on the NCIC file. Now, I guess I can ask you this 
question, why should we not be concerned that you are asking 
somebody to obtain information from an NCIC data base?
    Ms. Poston. The question is why----
    Mr. Wilson. Why should I not be concerned, reading this 
document--I understand you don't want us to have this document, 
you don't want to talk about this document, but the fact is 
this document is before us right now. Why should I not be 
concerned or the committee be concerned with an attorney, an 
officer of the court, asking a subordinate employee--in this 
case, contract employee, private investigator--to obtain 
information about specific questions under the first--and the 
first specific question is the name on the NCIC file Nobuo Abe. 
Why should the committee not be concerned by that request?
    Ms. Poston. I don't think I'm in a position to answer why 
you should or should not be concerned.
    Mr. Wilson. Well, I will ask you for speculation. It will 
be perfectly acceptable to speculate what our concern is.
    You heard opening statements here that there may have been 
attempts to improperly access information from the NCIC data 
base, and what we are confronted with here is a document where 
you ask a very, very specific, targeted question and you say 
you want information, is the name on the NCIC file Nobuo Abe?
    But let me just move away from that. I will ask about 
question 3. This is another thing you've asked your contract 
investigator to determine. Question 3: Is the date of birth on 
the NCIC file December 19, 1922?
    From my perspective, this looks like you're asking--it 
doesn't look, it is that you're asking for your subordinate to 
obtain information from the NCIC data base. Why should I not--
is there something other than the plain words of this document 
that makes my conclusion erroneous?
    Ms. Poston. Mr. Wilson, all I can tell you is that this is 
a communication from a client to me. This is a communication I 
have sent to my investigator. I don't believe that I'm at 
liberty, based on the privilege that--as I have stated, to 
answer any of your questions in this regard. And as far as 
speculation goes or why you should not be concerned, I can't 
answer that.
    Mr. Burton. Well, for the record, let me interrupt, 
counsel. It's obvious to me and will be for the record and 
anyone's who is paying attention that, rather than use your 
fifth amendment privilege, you're hiding behind the attorney-
client privilege. It's very obvious. And so, for the record, as 
chairman of the committee, I want to put that in there, that 
every question we ask, even though it isn't relevant to the 
attorney-client privilege, you're using the attorney-client 
privilege to defer or deflect that question; and it's not 
acceptable to the committee and will be recorded in the record 
that way.
    Mr. LaTourette. Will counsel yield to me? Are you still on 
your time, Mr. Wilson?
    Mr. Wilson. Yes.
    Mr. LaTourette. I stepped out of the room to talk to the 
House Parliamentarian for just a minute. And going back to my 
lawyering days--I mean, the implication of this privilege isn't 
appropriate, first of all, because it deals with crime fraud. 
It doesn't deal with communications between the client and the 
lawyer; and it's also been published, I mean, in newspapers. We 
know that. So--but superseding all of that is the fact that 
it's not recognized by the Congress, was the answer to my 
previous parliamentary inquiry.
    Now if the witness has refused to invoke the fifth or some 
other privilege that's recognized by this committee, Mr. 
Chairman, I respectfully ask that this matter be referred to 
the next business meeting of the full Government Reform 
Committee to determine whether or not the witness is invoking a 
privilege that they have been warned at least twice is not 
appropriate to legitimate questions before this committee, 
whether or not contempt of Congress citations are appropriate 
for a referral to the full body. We can't do it at this hearing 
because it isn't noticed, but it's my understanding we can do 
it at the next full business meeting of this committee, and I 
would respectfully ask the Chair to schedule it as an agenda 
    Mr. Burton. It will be taken under consideration, and we'll 
probably do that.
    Mr. Wilson. I just have about 20 seconds, so I'm not going 
to ask much of a question in 20 seconds. But, Mr. Lucas, let me 
ask you the question that's sort of the other side of this 
issue. Did Ms. Poston ask you to obtain in the form of these 
questions information from the NCIC file?
    Mr. Lucas. Respectfully, Mr. Chairman, I have listened 
carefully to instructions to Ms. Poston to answer questions 
despite claims of attorney-client privilege and the work 
product doctrine. As I understand the situation, the committee 
has considered these privilege claims and under its subpoena 
power it is nevertheless instructing the witnesses to answer 
its questions. It is my understanding that refusal to answer 
the committee's questions could result in criminal prosecution. 
If I am similarly instructed to answer questions, in 
recognition of the committee's subpoena power, I will do so.
    Mr. Burton. You are so instructed.
    Mr. Lucas. Could you repeat your question then, sir?
    Mr. Wilson. Mr. Lucas, I was asking you, based on the 
documents we have here, the fax transmission sheet, the letter 
from Mr. Odano which is directed to you, the question was, did 
Ms. Poston ask you to obtain information from the NCIC data 
    Mr. Lucas. I think the document speaks for itself. I mean, 
it's faxed to me. The letter--the document just speaks for 
itself. I mean, she faxed me the letter. She didn't recite the 
letter to me, and the document states what it states. It came 
from Ms. Poston. It was directed from Mr. Odano to Ms. Poston, 
and she forwarded it to me.
    Mr. Wilson. Thank you very much, Mr. Lucas. My time is out.
    Mr. Burton. The counsel for the minority is recognized for 
30 minutes.
    Mr. Barnett. I'm Phil Barnett, the chief minority counsel.
    The minority staff and the members of the minority received 
the majority staff report for the first time this morning, so 
we haven't had a time to examine it in any detail. What I hoped 
to do in my questions was to ask the panel of witnesses 
questions about the report and its major allegations so that we 
can have your responses as part of the record.
    And there seem to be two major allegations. One is the 
allegation that Mr. Manuel, Mr. Lucas, and Ms. Poston broke the 
law somehow by obtaining information from the National Criminal 
Information Center about arrest records; and the second is that 
there was improper lobbying and influence connected with the 
Freedom of Information request.
    I'd like to ask about both of those, beginning first with 
the allegations of the potential illegality and obtaining 
arrest information. Mr. Lucas, I'd like to begin my questions 
with you.
    We have had a chance to interview all the other witnesses 
that are appearing here today, either in joint interviews with 
the majority, which the minority was asked to participate in, 
or in separate interviews, but we've had no opportunity to ask 
you your perspective on things. And we also haven't had much 
time to look at the documents you've provided the committee.
    Let me begin with the staff report. On page 7 of the staff 
report that the majority released and put in the record today, 
it says Mr. Lucas contacted a friend, Tony Gonzalez, a retired 
IRS investigator, to ask for help in obtaining NCIC information 
on Abe. Gonzalez in turn contacted a confidential source who 
provided him with the NCIC information on Abe. Is that 
    Mr. Lucas. In very general terms, yes. A lot of facts are 
missing, but in very general terms----
    Mr. Barnett. And on page 9 of the report it says, ``Lucas 
told the committee that it was clear that''--and I guess this 
is a quote from you--``essentially you were breaking the law,'' 
by doing what Poston had asked. Is that accurate?
    Mr. Lucas. I had--due to this investigation and with 
another related one that's not here that was going on at the 
same time, after she published--after a letter was published in 
a magazine--I don't know how to phrase it--where a letter from 
Ms. Poston saying there was an inquiry made and certain records 
were found, I thought it was getting--that there was a 
possibility that there may have been a violation.
    Mr. Burton. Mr. Lucas, would you pull the mic closer so we 
can hear your answers?
    Mr. Lucas. Yes, sir.
    Mr. Barnett. On page 7 it says you asked a friend to obtain 
the NCIC information and you said that was an accurate 
statement and that the friend Tony Gonzalez contacted a 
confidential source who provided the NCIC information. You said 
in general terms that was accurate, if I recollect. Is that 
accurate, what the majority report is saying on page 7 of the 
    Mr. Lucas. Well, first, you're reading from a report that I 
am at a little bit of a disadvantage of. If I could get a copy, 
I would be appreciative.
    Mr. Burton. Could we get a copy of that report down to the 
witness so Mr. Lucas can take a look at that real quick? Stop 
the clock so we won't use the minority's time.
    Mr. Lucas, at the end there. Do we have any more copies of 
that? We probably ought to have copies of that for the entire 
panel. Can you get that down there to them so they can follow 
    Mr. Palmer. Thank you. Appreciate that.
    Mr. Barnett. This is at the top of page 7, and it's citing 
to footnote 21, which is the interview that I guess the 
majority staff had with you. The minority was not present for 
the interview.
    Mr. Lucas. Yes, I'm sorry.
    Mr. Barnett. I wanted to ask you if that's accurate, the 
statement in the minority report, if it's accurate.
    Mr. Lucas. Not the way that it's stated, it is not 
    Mr. Barnett. Could you describe what would be accurate?
    Mr. Lucas. Yes, I would. I was contacted by Ms. Poston who 
instructed me that she wanted to determine if I could--if 
myself or the firm could obtain information of an arrest record 
of an alleged incident--either an arrest or an incident that 
occurred back in 1963 in Seattle, WA. Obviously, a very, very 
unusual request because it was not a--not a U.S. citizen. I 
don't think she was absolutely sure about the date of birth, 
but she was pretty sure, not being a U.S. citizen, there was no 
social security number. And, frankly, NCIC did not exist in 
1963. That's something I knew.
    I contacted a friend, Tony Gonzalez, and said, this is a 
request I have. He was retired. He wasn't working. I said, if 
you--I'm trying to find out if there is an incident--how would 
I go about trying to find an incident--if an incident occurred 
in 1963 in Seattle with the Seattle Police Department? It was 
way before my time. In 1963, I was 10 years old. I didn't know 
how the reporting systems worked.
    He said, let me see what I could find out. He then called 
me back the next day and told me there was a record from the 
Bureau that there was such an incident in 1963.
    Mr. Barnett. Did Ms. Poston direct you to gain access to 
restricted information from the NCIC?
    Mr. Lucas. At this request, she did not. At this request--
her request was trying to determine if there was any type of 
report--any type of document or report that could--that was 
specific as to--on this first contact as to whether there was a 
report or an incident, something she could have tangible in her 
hand that something occurred, which was, obviously, an unusual 
    Mr. Barnett. But is that unusual and improper for a lawyer 
to hire a private investigative firm to ask if someone has an 
arrest record, has a criminal history?
    Mr. Lucas. Yes. Yes, it is.
    Mr. Barnett. Mr. Manuel, in your experience, is that an 
unusual request to hire a private investigative firm to 
determine if someone has a background that involves an arrest 
or criminal history?
    Mr. Manuel. It's very common in the investigative business 
to conduct due diligence on individuals, which would include 
the gathering of background information and whether the 
individual had a criminal background. This is done almost 
exclusively from private source records such as court records, 
reports of conviction, that sort of thing. But to--to request 
criminal background information is very common for very 
legitimate purposes.
    Mr. Barnett. Mr. Lucas, going back to page 9 on the report, 
at the bottom of that first paragraph. It says, quote, Lucas 
told the committee that it was clear that essentially you were 
breaking the law by doing what Poston had asked. Did you 
believe you had broken the law when you had your conversation 
with Mr. Gonzalez?
    Mr. Lucas. Not when I had my conversation with Mr. 
Gonzalez. No, I did not believe I was breaking the law.
    Mr. Barnett. The report says, on page 25, quote, there is 
no doubt that Richard Lucas' conduct was unlawful. Do you agree 
with that?
    Mr. Lucas. Bear with me, page 25, in conclusion--section, 
    Mr. Barnett. It's in footnote 141, in the small print. It 
says, although there is no doubt that Richard Lucas' conduct 
was unlawful--and the part I'm asking you about is the 
statement that there's no doubt that Richard Lucas' conduct was 
    Mr. Lucas. That's a legal conclusion. I performed as I 
stated I performed in this testimony.
    Mr. Barnett. Well, on page 9, it says you told the 
committee that essentially you were breaking the law----
    Mr. Lucas. I didn't say----
    Mr. Barnett. The conclusion in the report that you were 
breaking the law. A lot of the report seems to be based on your 
statements to the committee, and I'm trying to understand the 
committee's conclusions. They have drawn conclusions that there 
were illegal actions. And they seem to say that your actions 
were illegal. And I'm trying to understand if they were 
illegal, if you believe they were illegal, were doing anything 
wrong or illegal.
    Mr. Lucas. I do not believe my contact with Mr. Gonzalez 
was breaking the law.
    Mr. Barnett. And your other efforts to obtain information 
about Mr. Abe, did they cross the line into illegal actions?
    Mr. Lucas. I performed no other request on Mr. Abe other 
than that first inquiry with Mr. Gonzalez.
    Mr. Barnett. So, to summarize, you believe your actions 
when you asked someone to obtain information about the arrest 
record was legal to do?
    Mr. Lucas. Well, first of all--I don't mean to be 
quarrelsome, Mr. Counsel. My request was not to--I mean, as the 
answer came back in the memo, it was not an arrest record. He 
was not arrested, according to the information that was 
provided to me. So the--but the--so it just is--there wasn't an 
arrest record.
    Mr. Barnett. What I'm asking is, on page 7, it said that 
you had asked Mr. Gonzalez for the NCIC information.
    We went over it. It sounded like you didn't actually ask 
him for the NCIC information but instead you explained the 
situation, said what was wanted was information, was this 
person actually arrested. You asked, could he find something 
out about that? And he came back and found something out about 
that. Was that illegal, to ask that question?
    Mr. Lucas. But that's not what I phrased to Mr. Gonzalez. 
My phrase to Mr. Gonzalez was, we have an incident that 
occurred in 1963. My question to him was could he determine if 
that--if there was an incident involving a Mr. Abe in Seattle, 
WA, in 1963 on--I think the date was--it was in March 1963.
    Mr. Barnett. Did you know that Mr. Gonzalez would look at 
NCIC records?
    Mr. Lucas. Not at the time I did not.
    Mr. Barnett. Did you have any personal knowledge--do you 
have any personal knowledge that anyone searched NCIC records?
    Mr. Lucas. Mr. Gonzalez, I can't answer that with a yes-or-
no question--with a yes-or-no answer. But, in response, Mr. 
Gonzalez reported back to me that he made a contact at the 
Bureau. He didn't say anything beyond at the Bureau. And there 
was a record of it, as is spelled out in my report to Ms. 
    Mr. Barnett. Did you ever see the record?
    Mr. Lucas. No.
    Mr. Barnett. From your perspective then, when the majority 
report concludes that your actions were illegal, that's not 
    Mr. Lucas. I mean, I don't know how they--I mean, I'm sure 
they didn't do that in bad faith. But, in my opinion, I'm not a 
lawyer to say that my actions were illegal.
    Mr. Barnett. Let me ask you about a request you received. 
Your actions of asking Mr. Gonzalez for this information were 
not illegal. Would a lawyer who's hiring you and asked you an 
even more general question about seeking information, 
background information on somebody who had an arrest, would 
that be illegal?
    Mr. Lucas. I'm not trying to be confrontational again. 
You're saying if a lawyer is asking me to obtain background 
information on Mr. Abe--again, I'm not a lawyer. I'm a CPA by 
education, and I don't--I mean--as Mr. Manuel stated and I 
stated, it is common in the investigative business for people 
to try to find out if there is criminal history.
    Mr. Barnett. I guess the question I'm asking is, as I read 
the majority report, the majority report is premised on, 
clearly, you engaged in illegal conduct.
    You're not the focus; in fact, in footnote 141, they said 
you cooperated with the committee, with majority side--not the 
minority side, because we've had no contact with you until 
today. But the illegality was premised on your action. And 
because you are, in a sense, working at the direction of Ms. 
Poston, who is a subject of a lot of the allegations here, 
because you did something illegal there's an implication she 
did something illegal by asking you to do what was illegal. 
Your testimony here is that what you did was not illegal. In 
your mind, it was appropriate to ask Mr. Gonzalez to obtain the 
information; and you didn't, in fact, ask him to go and get 
information from NCIC.
    Mr. Lucas. That's correct. I did not ask him to go to NCIC 
to get that information.
    Mr. Barnett. When a client asks you to find information, 
you could do that in other ways, in addition--by contacting the 
Justice Department, you could review press clips, talk to 
people, do basic research. Isn't that part of what private 
investigators do?
    Mr. Lucas. Yes, it is.
    Mr. Barnett. In his opening statement, Mr. Manuel made a 
series of accusations about your conduct; and I think it is 
only fair to give you a chance to respond to those. And I 
believe Mr. Manuel said you had stolen files. Is that true? 
Have you ever stolen files?
    Mr. Lucas. No.
    Mr. Barnett. He said that you had taken without authority 
files from the Manuel group when you left the firm; is that 
    Mr. Lucas. That's not true.
    Mr. Barnett. And he said that you tried to sell those files 
to individuals; is that true?
    Mr. Lucas. Again, that's--that's not true.
    Mr. Barnett. Mr. Manuel said he obtained a court judgment 
against you for these actions; is that true?
    Mr. Lucas. I would--I'll answer that with an explanation at 
the end. He obtained a judgment against a company that I had 
contacted him with, but it was under extremely unusual 
circumstances, and I would like to briefly explain those 
    When I left his employment, he owed me about--he owed the 
company about $35,000 or $40,000. I filed a lawsuit to recover 
it. The case was removed to arbitration. It was made very clear 
right away I would settle for about half that amount just to 
collect my moneys due.
    Mr. Manuel, because of a situation involving an individual 
named Orlando Castro, was out to find out as much information 
about me as possible. He dragged this legal case on for over 3 
years; and, remember, this is a $30,000 to $40,000 case that's 
    It got so bad he drained me of money. My lawyers quit--the 
case was removed to arbitration. My lawyers quit because I 
couldn't afford to pay them any more 2 days before depositions 
occurred. There was a three-person arbitration panel. I could 
not afford to pay my arbitrator. He quit. I could not afford to 
pay the so-called independent arbitrator, so he was only 
getting half of his fee in this case.
    At the closing, Mr. Manuel spent $120,000 in legal fees to 
defend a $35,000 case that I would have settled--my lawyers 
told their lawyers immediately--for $15,000 $20,000. This was a 
case that Mr. Manuel used to punish me for revealing to--to 
government sources of what I believe were criminal acts in a 
totally unrelated incident other than the Castro case.
    Mr. Barnett. I don't want to become sidetracked on this, 
but, Mr. Manuel, I see--do you have a comment--would you like 
to have any comment on this?
    Mr. Manuel. I'm just--I'm just shocked at Mr. Lucas' 
explanation. We have documentary testimony in our case that Mr. 
Lucas sold documents for $35,000, documents that he took from 
my office. The committee should ask Mr. Lucas where did these 
documents come from if he didn't take them from the office.
    The person that we got the testimony from concerning his 
sale of documents for $35,000 was none other than the man who 
paid him and put the money up, Mr. Thor Halverson, who happened 
to be an adversary of Mr. Orlando Castro whose documents Mr. 
Lucas stole, copied and turned over to them. He sold them. He 
wants to wrap himself in the flag and say he's a whistle-
blower, but the fact of the matter is what he's used all this 
for is to gain money for himself.
    Now I wasn't about to--in our litigation with him, I was 
not about to accede to his extortionate demands for a 
settlement on money that I didn't owe him. That's his pattern.
    Mr. Barnett. Mr. Manuel----
    Mr. Manuel. I'm reading it for the first time here, all 
kinds of things in this report such as, on page 8, Mr. Lucas 
informed committee staff that Manuel told him he obtained this 
information from Ben Brewer, his confidential source in the 
FBI. I don't even know a Ben Brewer. I have never met a Ben 
Brewer. I've never talked to a Ben Brewer. Where he get this 
information, I don't know, but it's typical of what he makes 
up. I don't know whether it's in his mind or what. But I see a 
lot of things in this report that's attributed to Mr. Lucas 
that I would take issue with.
    Mr. Barnett. Mr. Lucas, can I ask you just to followup on 
that piece? Did you tell the committee that Mr. Brewer was Mr. 
Manuel's confidential source?
    Mr. Lucas. I told the committee that Mr. Manuel told me 
that he contacted a Mr. Brewer at the FBI.
    Mr. Barnett. And Mr. Manuel is saying now he doesn't even 
know Mr. Brewer. And I notice that the committee staff 
interviewed Mr. Brewer, and he said he wasn't the source of any 
    Mr. Lucas. Then those are their statements.
    Mr. Barnett. Mr. Manuel, you said in your opening statement 
that you thought Mr. Lucas, I think your words were, had sold 
the committee a bill of goods. Could you elaborate on what 
you--what you thought may be inaccurate information that's 
being committed to the committee?
    Mr. Manuel. One example is right here. He attributes a 
statement to me that was never made. I'm at a disadvantage, 
too, because I have just gotten this thing and, in reading it 
over, I see a lot of things that I would take issue with, a lot 
of things that I would say that Mr. Lucas has sold the 
committee a bill of goods on and has spun this thing to his 
    Why he's doing it, I don't know. I can't answer for his 
motivation except that I know that everything he does is in his 
self-interest and ultimately for money. I would not be 
surprised--as a matter of fact, I've just learned that in this 
very case he's probably worked for and given documents to the 
other side in this case. He can speak to that if he wants, but 
it looks like that in what we're talking about here. So I don't 
see how you can say in any way, shape or form that Mr. Lucas is 
a reliable informant to this committee.
    Mr. Barnett. Let me just ask you, and I understand you have 
just gotten the report, about a few of the allegations that are 
in the report in the same way I asked Mr. Lucas whether he 
agreed with them.
    The majority report says that you illegally obtained arrest 
records from the Department of Justice. Do you agree?
    Mr. Manuel. I did not receive any arrest records from the 
Department of Justice.
    Mr. Barnett. On page 7 of the report it says, quote, 
Manuel's source accessed the NCIC data base and told Manual the 
information on Abe contained in the data base. Is that 
    Mr. Manuel. It is not accurate. It's not true. I never 
asked anybody to access NCIC records.
    Mr. Barnett. One of the allegations in this report is that 
the Department of Justice was leaking this information 
improperly. And I think in the chairman's statement, if I have 
it here, it says, Justice Department employees were leaking 
criminal records, not once not twice but three times, in 
violation of the law.
    The Justice Department is a pretty big entity. I think in 
this committee when we say Justice Department we're often 
talking about the Attorney General or her advisers or her 
attorneys, but they also have the INS, the Bureau of Prisons, 
the FBI. Mr. Lucas, were any of your contacts with Justice 
Department lawyers in Main Justice?
    Mr. Lucas. Not at all.
    Mr. Barnett. The information that was provided to you, did 
it come through the FBI or through another part of the Justice 
    Mr. Lucas. The information that was provided me--to me by 
Mr. Gonzalez said--as I have testified to, he said he obtained 
it from the Bureau. I did not ask for an explanation. I did not 
ask him to go to the Bureau.
    Mr. Barnett. The Bureau, that refers to the Bureau of 
Prisons, the Bureau of the FBI?
    Mr. Lucas. I assume he meant the FBI.
    Mr. Barnett. And, Mr. Manuel, you said you received no 
information here so----
    Mr. Manuel. I didn't say that. I said I never asked anybody 
to access any NCIC information, nor did I ever get any 
information from the NCIC, which I will stress again should be 
very easy for this committee to prove because NCIC records 
leave an audit trail. And if somebody went into NCIC records 
under the name Mr. Abe, that record should be there. If it is 
not there, then nobody accessed NCIC records.
    Mr. Barnett. Ms. Poston, let me ask, if I can, a few 
questions just about the allegations of the majority report 
insofar as they relate to you, and let me know if I get into an 
area that you believe is covered by the attorney-client 
    But the majority report on its heading on page 5 says, 
Poston Requests Her Private Investigators to Break the Law. Did 
you ask anyone to break the law? It's heading B, Poston 
Requests Her Private Investigators to Break the Law.
    Ms. Poston. I was just looking for it in the document. I 
absolutely never asked these investigators to break the law. I 
hired this investigative firm because I knew of Phil Manuel's 
reputation, and I think Phil Manuel has known me long enough to 
know not only would I never ask it, I would not acquiesce in it 
    Mr. Burton. Would the gentleman yield just a moment?
    Mr. Barnett. Certainly, Mr. Chairman.
    Mr. Burton. It seems unusual to me, Ms. Poston, that when 
we ask other questions of a similar nature that you say that 
you can't comment because of the attorney-client privilege, and 
yet this question just posed by the minority attorney you are 
answering. You know, I don't understand how you can be 
selective like that. Either you are asserting the attorney-
client privilege or you are not.
    Ms. Poston. With all due respect, Mr. Chairman, I see a 
distinction between the questions that are asked. Every 
question that was asked by your chief counsel dealt with a 
document or piece of correspondence between someone that I 
hired under the privilege.
    Mr. Burton. Just remember what your answer was, because I'm 
going to come back to this in just a moment, and I expect you 
to answer.
    Mr. Barnett. Let me also ask about another heading in this 
report, on page 3, Rebekah Poston Illegally Obtains information 
from the Justice Department. I'm not seeking attorney-client 
information, but I am asking if you're able to--whether you 
believe you illegally obtained information from the Justice 
    Ms. Poston. No, I absolutely do not believe that. My FOIA 
requests were consistent with the Attorney General's policy 
that was announced before I was even retained in this case. On 
October 4, 1993, the Attorney General issued a memorandum to 
all the Department agencies wherein she stated that, and I 
quote, the principle of openness in government must apply at 
each and every disclosure and nondisclosure decision.
    And when I was making an application on FOIA, I received 
various responses back from the Department of Justice. The 
Bureau of Prisons stated that they had searched certain types 
of records. They indicated their computer index was searched. 
They indicated that their data base was searched, and they 
found nothing.
    We received also from the Department of Justice a response 
from Immigration, which is part of the Department of Justice, 
as I said; and Immigration said they had searched their 
microfilm and their reels, and they found a record. They didn't 
ask me for a privacy waiver. They didn't ask me for a signed 
statement. They said the record is illegible, and we need to 
enhance it. They engaged the service of the FBI that helped 
Immigration enhance that document.
    I sent a letter saying I would be coming by--not myself but 
my investigator, Mr. Kelly--to pick up the record from 
Immigration. They searched the records, identified where they 
searched, said they had a record. Then, when they enhanced it 
through the assistance of the Bureau, they were able to see it 
was Nobuo Abe, but it was a different date of birth; and so 
therefore I, of course, could not get the record.
    So--and then when I finally, you know, argued my appeal and 
set forth my law, when I received the decision back from 
Associate Attorney General Schmidt, in his letter he said 
that--and I'd like to just quote it because I think it's 
consistent with the policy and what my arguments were--after 
considering your Freedom of Information Act request under 
Attorney General Reno's policy of undertaking discretionary 
disclosure of information whenever no foreseeable harm would 
result, the Associate Attorney General, John R. Schmidt, has 
determined that it is appropriate to disclose the fact that 
neither the Federal Bureau of Investigation nor the Executive 
Office of the U.S. Attorneys maintains or has any evidence of 
ever maintaining this factual conclusion--excuse me, any record 
within the scope of your request.
    And so I guess what is hard for me to understand from the 
chairman's position--and I haven't read your summary paper 
here, but I know what you think I have done--and I just don't 
know how it could be considered improper to acquire government 
property which the government says I'm entitled to and then, 
when they grant my request, they say there is no property to 
    Mr. Barnett. Ms. Poston, I see my time is going to expire 
pretty soon. I think probably on the second panel will be an 
opportunity to get more into this about the Freedom of 
Information Act issues.
    Let me just summarize, if I could, the issues.
    Mr. Lucas, if you'd pay attention, because if I say 
something wrong you should correct me. But my understanding is 
you never directly contacted the NCIC. You asked Mr. Gonzalez 
to find information, but you never directly asked him to 
contact NCIC. You never saw any records personally from NCIC 
and have no personal knowledge of any records from NCIC. Ms. 
Poston never directly asked you to get these confidential 
records from NCIC. Ms. Poston never saw a record, a physical 
record that came from NCIC. And your only contract to obtain 
information was from Mr. Gonzalez, who may have made other 
contacts in trying to respond to your request.
    Is all that accurate?
    Mr. Lucas. There was a lot to summarize there. As to--I'd 
say most of it was accurate, yes.
    Mr. Barnett. If that's accurate, it seems to contradict 
many of the major conclusions in the report that was released 
by the majority staff today.
    Mr. Burton. Gentleman's time has expired.
    We'll start my 30 minutes now, and I'll yield some to my 
colleagues if they so wish.
    Did you receive, Mr. Lucas, a fax from Ms. Poston which 
said, please give answers to as many of these as you can and be 
specific. This is a matter of serious importance. I hope 
because this is a Federal holiday that we can access the 
necessary research.
    This memo was dated November 11, 1994.
    Do you recall receiving that?
    Mr. Lucas. Yes, I do.
    Mr. Burton. Along with that did you receive a letter 
addressed to Ms. Poston that was from a George Odano?
    Mr. Lucas. Yes, I did.
    Mr. Burton. Ms. Poston, did you read this letter from Mr. 
Odano? It is dated November 10, 1994.
    Ms. Poston. May I have a moment, please?
    Mr. Burton. Sure.
    Ms. Poston. I have no independent recollection of having 
read it. I imagine that I probably did, but I don't recall 
reading it.
    Mr. Burton. You sent this memo, and it says, ``Please get 
answers to as many of these as you can and be specific.'' You 
wanted specificity. ``This is a matter of serious importance.'' 
And then you allude to a Federal holiday, and that would 
indicate that certain records could not be accessed because you 
couldn't get them from Federal agencies.
    Let me read from this letter that was sent to you from Mr. 
    ``Is the name on the NCIC file Nobuo Abe?''
    ``According to a witness, the incident took place at or 
around March 19, 1963. How much information about the date of 
the incident does the data carry''--again referring to the NCIC 
file. ``Does it say that it took place on March 1963, or does 
it state the exact date?''
    ``Is the date of birth on the NCIC file December 19?''
    ``What does SOL PROS mean?''
    ``Did your source have access to the NCIC file that the FBI 
kept, or was it some other data base?''
    And it goes on and on all talking about the NCIC file.
    You sent this letter to Mr. Lucas with a memo, and you 
faxed it to him, which was pretty urgent: Please get answers to 
as many of these as you can. It is a Federal holiday. I hope 
that we can access--even though it is a Federal holiday, we can 
access the necessary research. There was a signal of urgency. 
You knew that there it was a Federal holiday, and the memo 
which you say that you don't remember reading is all about 
getting information from the NCIC. Don't you find that a little 
strange? This was your client. You got the letter and sent it 
to them. You don't remember it; is that correct?
    Ms. Poston. I am telling you that I do not independently 
recall reading this. This is my handwriting. I told you that. 
It is obvious that I sent it. Whether I sent it on for answer 
and whether I read, I can't recollect. I said I probably did.
    Mr. Burton. Do you remember the memo you sent?
    Ms. Poston. I don't remember any of this, but it is 
obviously my handwriting, and I obviously sent it.
    Mr. Burton. I can't tell you how much selective memory loss 
I have had to endure over the past 3 years, but it is a bunch. 
Here is something from the same memo I just read to you 
excerpts from. Here is something that really troubles me. I 
will read you two sentences that you received and passed along 
to your private investigator.
    As I have already informed you, the information that the 
source of our Federal Bureau of Prisons gave us is much more 
detailed than you gave us today. Do you have any idea for the 
    Who had the source at the Bureau of Prisons?
    Ms. Poston. I don't know that.
    Mr. Burton. Do you know the name of the Bureau of Prisons 
    Ms. Poston. I don't know if there is a Bureau of Prisons 
source or the name.
    Mr. Burton. You never talked to any person at the Bureau of 
    Ms. Poston. Never.
    Mr. Burton. Do you know where the source of the Bureau of 
Prisons got the information about Mr. Abe?
    Ms. Poston. I don't know anything about a source from the 
Bureau of Prisons, Mr. Chairman.
    Mr. Burton. Item 6 in this letter that was sent to you 
which you sent on with the urgent memo which I perceive is an 
urgent memo to Mr. Lucas, item No. 6: ``As I have already 
informed you, the information--he is saying this to you in the 
letter. As I have already informed, you, Ms. Poston, the 
information that the Bureau of Prisons gave us is much more 
detailed than the one you gave us today. Do you have any reason 
for this difference? Is it possible that the NCIC file that the 
Federal Bureau of Prisons keeps is different from the one that 
the FBI keeps''--indicating that there was FBI access as well. 
``Please note according to our source, the data base that he 
accessed was called NCIC-NATF. We believe that the NATF is the 
data base of the Department of Treasury, Bureau of Alcohol, 
Tobacco and Firearms.''
    You don't recall that either?
    Ms. Poston. The date of the letter is November 1994. You 
are asking me what is said here. Other than looking at it 
today, I have no independent recollection of that, sir.
    Mr. Burton. Was this a pretty lengthy case? How long did 
you have this case? How long was this going on?
    Ms. Poston. The case was in existence 2 years before I was 
retained. I was retained in 1993--1994, excuse me. 1994.
    Mr. Burton. How long did you have the case?
    Ms. Poston. Probably a couple of years.
    Mr. Burton. So it was a pretty important case?
    Ms. Poston. I think every one of my clients is important.
    Mr. Burton. But it was not something that was a snap case.
    Ms. Poston. If you are trying to ask me, Mr. Chairman, 
whether I remember this letter, this is my handwriting on the 
cover page. This is dated November 1994. I obviously forwarded 
it because it is my handwriting.
    Mr. Burton. Well, I think the letter and the memo pretty 
much speak for themselves. You are asking that this information 
that was in the letter be looked into very, very quickly by Mr. 
Lucas, and you--there definitely is a sense of urgency in the 
letter. The letter that was sent to you alludes over and over 
and over again to the NCIC file, and it also alludes to 
information that you gave them regarding the sources that you 
had. It mystifies me that you don't remember any of that.
    Here is a memo, Mr. Lucas, dated December 28, 1994, from--
it is exhibit No. 19 if you want to look it up. It is from you 
to Mr. Manuel. Excuse me, it is from Lucas to Manuel. It is 
regarding the Poston inquiry. It says, ``New Assignment.'' And 
in paragraph 3 it says--let's go back to paragraph 2. Let's 
just start at the top.
    ``On Tuesday I had a conversation with Rebekah Poston and 
she provided the following information and request that we 
undertake a new assignment on the case.''
    ``She stated--this is Ms. Poston, Mr. Lucas--she stated a 
handwritten record was kept by their source--their source--at 
the Federal Bureau of Prisons as to the incident involving Abe. 
The notes were as follows:''
    ``March 1963, NCIC-NATF, complaint by four females of 
possible pandering and solicitation by a bald Oriental male, no 
English, at 12:40 a.m., taken in for questioning at 1:30 a.m., 
no English. Detained and released at 3:30 a.m., forwarded by 
    ``The source noted numerous notations on the NCIC inquiry, 
including but not limited to NCIC-NATF, NLETS-CJIS, WITSC, 
    ``Poston requested that we undertake the following 
    ``Confirm the notations from the source are legitimate and 
determine their meaning.''
    ``Do these notations reflect data bases that are accessible 
through the Bureau of Prisons?''
    ``Can a local law enforcement agency such as the Seattle 
Police Department access the same information through the 
Bureau of Prisons?''
    ``If the previous information on NCIC was deleted and 
transferred to the FBI foreign counterintelligence file, is 
this information retrievable by Abe through FOIA and Privacy 
Act requests?''
    ``Is it possible to determine if the information is 
recorded in the FBI foreign counterintelligence file?''
    Six, ``a response was received on a FOIA request. A section 
of the response was stated on January 17, 1983, the combined 
NCIC-CCH file was abolished. What is the NCIC-CCH file, and 
does it have any bearing on our inquiry?''
    Do you recall that memo, Mr. Lucas?
    [Exhibit 19 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.059
    [GRAPHIC] [TIFF OMITTED] T3168.060
    Mr. Lucas. I could recall preparing the memo, yes.
    Mr. Burton. And you sent it to Mr. Manuel?
    Mr. Lucas. Yes.
    Mr. Burton. Did you receive that, Mr. Manuel?
    Mr. Manuel. I don't recall seeing this before. I may have, 
but I don't recall it.
    Mr. Burton. You don't recall it.
    Mr. Manuel. Not right now. This is the first time that I 
have seen it. We are talking about something 6 years ago, and I 
have not had anything to refresh my recollection.
    Mr. Burton. But the memo states clearly that Ms. Poston 
provided the following information, that she had a handwritten 
record that was kept by their source at the Federal Bureau of 
Prisons as to the incident involving Abe.
    Mr. Manuel. The memo to me says that this is what Mr. Lucas 
is saying that this is what Ms. Poston said. I have to tell you 
I am very skeptical about anything that Mr. Lucas says. I think 
I have made that clear during this hearing.
    Mr. Burton. Why would he make that up?
    Mr. Manuel. That is a good question. Over here in mid-
December--in your exhibit 51, page 2, in mid December 1994, 
counsel for some gentleman was approached by an anonymous 
informant Mr. Lucas. Mr. Lucas was able to relate to us that 
over a period of time--what I am saying, Mr. Chairman, at the 
same time he is writing these memos, he is contacting the other 
side to go to work for them. Now, I find it very difficult to 
believe anybody who is engaged in that type of activity.
    [Exhibit 51 follows:]

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    Mr. Burton. I don't think that is the same time, according 
to our counsel, but----
    Mr. Manuel. It is what it says in your document, and I am 
reading it for the first time.
    Mr. Burton. Ms. Poston, you just told us that you didn't 
know anything about a source at the Bureau of Prisons, and that 
is not what this document says, Ms. Poston?
    Ms. Poston. Yes.
    Mr. Burton. Did you know somebody at the Bureau of Prisons?
    Ms. Poston. I don't know anyone at the Bureau of Prisons, 
    Mr. Burton. Do you know anything about a source at the 
Bureau of Prisons? Let me read you this, and you just tell me 
if it is accurate. It says, on Tuesday----
    Mr. Palmer. Excuse me, Mr. Chairman, what exhibit number 
are you reading from?
    Mr. Burton. Exhibit 19.
    Mr. Lucas says to Mr. Manuel in this memo: ``on Tuesday I 
had a conversation with Rebekah Poston, and she provided the 
following information and request that we undertake a new 
assignment in the case:
    ``She stated a handwritten record was kept by their source 
at the Federal Bureau of Prisons as to the incident involving 
Abe. The notes were as follows,'' and it goes on.
    Ms. Poston. With respect to that question, Mr. Chairman, 
that would involve an attorney/client communication, and I 
believe the document will speak for itself.
    Mr. Burton. You know, a while ago when I interrupted the 
counsel for the minority, it was on this subject, and I said I 
would come back to this in a moment, and you were very open and 
anxious to answer the question that he gave to you. How is it 
that you could answer that question, and you can't answer this 
    Ms. Poston. Because I believed when I responded to him that 
there was a difference in the question that was being asked me. 
You are asking about a communication I had with a client----
    Mr. Burton. Can you pull the microphone closer?
    Ms. Poston. I believe there was a difference in the types 
of questions that were put to me. What you are asking me would 
require me to tell you something that a client told me. The 
client told me that I am to assert that privilege here. I can't 
do that under the privilege.
    Mr. Burton. This memo is not about a client. This is a 
source at the Bureau of Prisons. It says that you got the 
following information, and you stated that a handwritten record 
was kept by their source at the Federal Bureau of Prisons as to 
the incident involving Abe, and it goes into detail about the 
notes, and you can't comment on that.
    Ms. Poston. This memo was created as a result of 
communications with the client and then was passed on to 
investigators who were engaged by a client.
    Mr. Burton. You said earlier that you didn't know about a 
source at the Bureau of Prisons. Now you say that you can't 
answer about the source because of a privilege.
    Ms. Poston. No. My recollection--and my counsel refreshes 
my recollection also that your question was did I know the name 
of the source at the Bureau of Prisons, and I do not.
    Mr. Burton. You said, I don't know anything about a source 
at the Bureau of Prisons. You said, I don't know anything about 
a source at the Bureau of Prisons.
    Ms. Poston. And your question?
    Mr. Burton. And now you say--that statement evidently 
waived the privilege that you are taking right now. You were 
going into some detail about any source at the Bureau of 
Prisons, and now you are saying that you can't answer because 
of that privilege. And you said that you didn't know about a 
source at the Bureau of Prisons, and you are still taking that 
    Ms. Poston. I am still taking that position.
    Mr. Burton. Mr. Horn, do you have any questions?
    Mr. Horn. I thank the chairman.
    Mr. Lucas, let me start with some basics here. Do you know 
if the Justice Department was provided with information 
indicating that Rebekah Poston and Phil Manuel and you were 
involved in illegally obtaining NCIC records on Nobuo Abe?
    Mr. Lucas. Do I know if the Justice Department knows this?
    Mr. Horn. Do you know if the Justice Department was 
provided with the information indicating that Ms. Poston, Mr. 
Manuel and you were involved in illegally obtaining NCIC 
    Mr. Lucas. The documents that we are reviewing now were 
turned over pursuant to a grand jury subpoena to a Federal 
agent in February 1998.
    Mr. Horn. Did you ever offer to cooperate with the Justice 
    Mr. Lucas. Yes, they asked me to.
    Mr. Horn. Did you ever provide information on this matter 
to agents from the Treasury Department inspector general?
    Mr. Lucas. Yes. I was interviewed by him on a number of 
    Mr. Horn. Was that at his initiation or at yours?
    Mr. Lucas. He contacted me.
    Mr. Horn. And that was based on what? Why would he contact 
    Mr. Lucas. He contacted me because I was at one time a 
registered informant for the U.S. Customs Service, and Mr. 
Manuel and his lawyers--I was a registered informant concerning 
drug money laundering, and Mr. Manuel and his attorneys made 
that information public, to my great detriment. Once they made 
that information public, I filed a complaint with the U.S. 
Customs Service, which stated--I didn't file the complaint. I 
went to the control agent, and she filed the complaint. They 
then had the inspector general come out and interview me.
    Mr. Horn. After you provided the records to the Treasury 
inspector general, did they ever followup with you about the 
    Mr. Lucas. What I refer to as the Japanese situation?
    Mr. Horn. That's right.
    Mr. Lucas. They asked questions about it, but followup is 
hard for me to define. They asked questions about it, yes. I 
don't know what the result of it is, what I should say.
    Mr. Horn. So you were never told? Despite your helpfulness, 
the IG did not tell you to what extent your information helped?
    Mr. Lucas. No. In fact, in February 1998 I was told by the 
agent for the inspector general's office of the Treasury 
Department that he was no longer permitted to talk to me.
    Mr. Horn. In other words, they just cut you off in terms of 
the contacts; is that right?
    Mr. Lucas. That's right.
    Mr. Horn. We have various records, exhibits 48 and 50, and 
you might wish to take a look at exhibits 48 and 50. 48 is 
dated February 13, 1997, and that is a letter from John C. 
Gibbons of the Oso Group, Limited, to Mr. Michael A DeFeo. This 
indicates that on four separate occasions a lawyer named John 
Gibbons tried to provide this information to the Justice 
Department and FBI; is that correct?
    [Exhibits 48 and 50 follow:]

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    Mr. Lucas. I'm sorry, I just asked my counsel a quick 
question. Can you repeat the question?
    Mr. Horn. Sure. The first exhibit is No. 48, and it is the 
Oso Group, Limited, a firm in San Francisco, CA. It is noted, 
privileged attorney/client work product prepared under the 
supervision and direction of counsel. This is a letter from 
John C. Gibbons to a Michael DeFeo, Unit Chief, Office of 
Professional Responsibility, Federal Bureau of Investigation, 
and this is re the two Buddhist group. And here is the message.
    It was a pleasure speaking with you several weeks ago. I 
wanted to let you know that I will be in Washington, DC, during 
the week of February 24. I know that the issues aired in my 
December 13, 1996, letter to Mr. Mislock are complicated and at 
times can be sometimes convoluted. If you would like, I will 
make myself available to you so that we might discuss with you 
our concerns regarding the allegations contained in our papers. 
I expect to be traveling quite extensively.
    That is signed--it isn't signed, but it is typed, John C. 
    What you have here, looking at the other few--that is No. 
50, I believe, and, again, 50 is Oso Group stationery, May 28, 
1997, and then this is a very extensive letter here, and I 
wondered since your name appears quite a bit in it, in this 
letter of John C. Gibbons to David Ries, Esquire, Deputy Chief, 
Office of Professional Responsibility, Federal Bureau of 
Investigation, the question would essentially be do you 
recognize that as a factual statement in that--those letters 
that you have looked at or that we have discussed for just two 
of them?
    Mr. Lucas. The first one, Congressman Horn, was very brief. 
I have never seen that letter before, and I have never seen 
this letter before. It is four pages long. If you want me to 
read it, I will.
    Mr. Horn. Well, I think----
    Mr. Lucas. Unless you want to direct me to a specific part, 
and I will respond to it.
    Mr. Horn. The question will be to what did the FBI's 
professional responsibility group ever talk to you?
    Mr. Lucas. I don't know. I don't know titles of FBI agents. 
If an FBI agent says he is from a field office, if he is from 
a--you know what I am trying to get at. I don't know--I did 
talk to FBI agents and--but I really don't know--no disrespect, 
I don't know the question that you are trying to get at.
    Mr. Horn. I am trying to get at the degree to which when 
you have given them information or others have given them 
information, did they ever get off the seat and say, we want to 
look into that?
    Mr. Lucas. I believe in this case they did, but I don't 
know what the result was.
    Mr. Horn. What other government agencies did you talk to on 
these cases? We have talked about the Treasury. We have talked 
about the FBI. What else?
    Mr. Lucas. And the Drug Enforcement Administration and 
the--the Drug Enforcement Administration, the U.S. Customs 
Service, and FBI and the Office of Inspector General.
    Mr. Horn. To what degree did they followup on information 
that you gave them?
    Mr. Lucas. I don't know, because obviously they don't tell 
me what they are doing. I turned over records. I don't know, 
    Mr. Horn. Mr. Chairman, I pass the time back to you. We 
have some other things to followup.
    Mr. Burton. I apologize. There are a couple of questions 
that I wanted to direct at this panel before we get onto the 
next one.
    Here is a memo from you, Mr. Manuel, to Rebekah Poston, and 
it says, this is to report that a highly confidential--this is 
exhibit No. 18, if you care to look at it. It says:

    This is to report that a highly confidential and reliable 
source has advised as follows regarding the subject of your 
    Whatever files or references either in data base form or 
hard copy form, which were available previously have apparently 
been purged. There are currently no derogatory references to 
the subject of your inquiry in any files maintained by or under 
the control of the Department of Justice or any of its 
investigative agencies. Specifically, there is no information 
in NCIC.

    How did you know that?
    [Exhibit 18 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.057
    [GRAPHIC] [TIFF OMITTED] T3168.058
    Mr. Manuel. It was a conclusion I arrived at by talking to 
some people in the FBI who I contacted and asked about the NCIC 
and whether it would be possible for an arrest which was made 
in--purportedly made in 1963 to be in NCIC files. I posed my 
questions to the people I talked to in the FBI in hypothetical 
terms, and I got answers back that indicated if that was the 
scenario, no record could exist in the NCIC, and that is what I 
    Mr. Burton. If they said there was nothing in there----
    Mr. Manuel. They didn't say there is nothing in there. That 
is what is contained in here. I am not quoting them directly.
    Mr. Burton. It doesn't say that.
    Mr. Manuel. I know that it doesn't say that.
    Mr. Burton. It doesn't say your conclusion. It says, 
``Whatever files or references either in data base form or hard 
copy form, which were available previously have apparently been 
purged. There are currently no derogatory references to the 
subject of your inquiry in any files maintained by or under the 
control of the Department of Justice or any of its 
investigative agencies. Specifically, there is no information 
in NCIC.''
    I mean, this is----
    Mr. Manuel. Mr. Chairman, I know it is difficult for you to 
understand, but I made that conclusion based on what was told 
to me based upon how the NCIC operates, not that somebody went 
into NCIC to get the information. I never asked anybody to do 
that. And as I pointed out to you and the committee, it is very 
simple to determine whether anybody ever checked NCIC because 
there is an audit trail.
    Mr. Burton. Well, let's go back to your memo of September 
8, 1995. That is exhibit No. 41. ``As part of''--item 11 on 
page 2, ``as part of PMRG's investigation, I contacted a 
confidential and highly reliable source who I believed would be 
able to determine whether the Federal Government had the 
documentary evidence.''
    ``My source told me there was a Federal Government record 
for Mr. Abe which referred to suspicion of solicitation of 
prostitution, Seattle Police Department, March 1963.''
    ``My source told me that there was a Federal record, 
Federal Government record.''
    ``My source further told me that the record concerning Mr. 
Abe reflected that the Seattle Police Department had made an 
inquiry for information.''
    ``My source also told me that if Mr. Abe made an official 
request for information under his name to be removed from the 
record, it could be removed.''
    ``Sometime later my source informed me that the record 
concerning Mr. Abe apparently had been purged.''
    Mr. Manuel. Nothing that you have read relates to NCIC--as 
far as I can determine--to NCIC information. The procedure 
would have been had there been an arrest in Seattle in 1963, as 
I understand it, that information would have been sent not to 
NCIC, because it didn't exist at that time, it would have been 
sent in like a teletype type of communication. Had that been 
done, the information would have been there.
    Mr. Burton. You are so specific. You are so specific in 
this letter. In both of these memos, there is no indication 
whatsoever that these are opinions.
    ``My source further told me that the record concerning Mr. 
Abe reflected that the Seattle department--Seattle Police 
Department made an inquiry.''
    ``My source also told me that Mr. Abe made an official 
request for information, and his name would be removed.''
    ``Sometime later my source told me that the record 
concerning Mr. Abe had been purged.''
    They had to look at the NCIC records.
    Mr. Manuel. I disagree with you. I don't think that anybody 
looked at NCIC records that I know of. I never asked anybody to 
do it.
    Mr. Burton. How did they know it had been purged?
    Mr. Manuel. Because it wouldn't have been there in the 
first place, Mr. Chairman.
    Mr. Burton. What does purged mean?
    Mr. Manuel. I interpret purged to mean to be taken out of 
something, or not have existed or----
    Mr. Burton. If it was purged, it was there in the first 
    Mr. Manuel [continuing]. Redacted.
    Quarrel with my choice of words, Mr. Chairman, but I am 
telling you, I didn't ask anybody to check NCIC, and it is very 
easy to determine that.
    Mr. Burton. Sometime later my source informed me that the 
record concerning Mr. Abe had been purged.
    Mr. Manuel. ``Apparently had been purged.''
    Mr. Burton. Apparently had been purged.
    Mr. Manuel. Apparently, Mr. Chairman.
    Mr. Burton. We will now go to the 5-minute rounds. Let me 
start with Mr. Horn, and then we will go to Mr. LaTourette.
    Mr. Horn. Mr. Chairman, I pass to Mr. LaTourette.
    Mr. LaTourette. Ms. Poston, if you would look in the 
exhibit book, it is exhibit 15 in that specific document. It is 
written on the letterhead of your law firm to your client, and 
it says, ``PMRG''--Mr. Manuel's outfit--``reported to us on 
November 17, 1994, that a source within the U.S. Government, 
Washington, DC, was contacted, and the source confirmed that 
there is a record for'' the gentleman in question.
    First of all, who is the source within the U.S. Government 
that you are referring to in that document?
    [Exhibit 15 follows:]
    [GRAPHIC] [TIFF OMITTED] T3168.053
    Ms. Poston. First of all, Mr. LaTourette, this is a direct 
communication with my client, so I will assert the attorney/
client communication privilege here.
    Mr. LaTourette. Let me go to exhibit No. 21, if I could, 
and exhibit No. 21, I think, is a newsletter that is put out by 
your client or the organization to which your client belongs. 
Do you find that?
    [Exhibit 21 follows:]

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    [GRAPHIC] [TIFF OMITTED] T3168.066
    Ms. Poston. Yes.
    Mr. LaTourette. Do you know who Mr. Langberg is?
    Ms. Poston. Mr. Langberg is an attorney who represents Mrs. 
Clow and I believe may have represented Soka Gakkai 
International as well.
    Mr. LaTourette. In the same matter or litigation by which 
you were retained by these folks or a different matter?
    Ms. Poston. A different matter.
    Mr. LaTourette. If you can flip to the last page, and let 
me see how many pages this is. It looks to me like the fourth 
page of exhibit No. 21, Mr. Langberg in this newsletter is 
being interviewed by someone interested in this matter, and on 
page 4 next to the picture of the Olympic Hotel in Seattle, 
which is now the Four Seasons Olympic Hotel in Seattle, that 
looks to me in the first column on the left, Mr. Langberg has 
basically reprinted the letter that I was alluding to. Do you 
see where I am talking about?
    Ms. Poston. Yes.
    Mr. LaTourette. Again, going back to my previous 
observations when I was here before about the attorney/client 
privilege, I assume you know, aside from the fact that the 
Congress doesn't recognize the privilege, you also are aware 
based upon your many, many years of service as an attorney that 
the publication of a communication waives the attorney/client 
privilege; does it not? You are aware of that exception, aren't 
    Ms. Poston. Could I speak to two things that you have 
raised here?
    Mr. LaTourette. I would like you to answer that first 
question, and then you can tell me whatever you would like to 
tell me.
    Isn't it true that the publication of a communication in 
this case by your client is a waiver; is it not?
    Ms. Poston. I believe there is a waiver in certain 
circumstances, but I also have two clients. I have Mrs. Clow, 
and I have Soka Gakkai as a client.
    Mr. LaTourette. Right, but this is their newsletter?
    Ms. Poston. The World Tribune?
    Mr. LaTourette. The SGI-USA newsletter. Isn't that 
published by the organization that you represented?
    Ms. Poston. I don't know. It may be, but I don't know.
    Mr. LaTourette. The fact of the matter is--is there 
something else that you wanted to say?
    Ms. Poston. Just the point about the privilege that you 
have commented about. When I looked at the Florida bar rules 
that govern my conduct, it stated that while a tribunal may not 
observe or recognize the attorney/client privilege or attorney 
work product privilege, it also said that the attorney had a 
right to exhaust all appellate remedies before breaching that 
privilege. And so the committee is clear, that is the rule 
which I am going under, especially in light of the instructions 
that I have received from my client.
    Mr. LaTourette. The one client is dead?
    Ms. Poston. The privilege still applies to the extent that 
she did not waive the privilege.
    Mr. LaTourette. So you don't accept my observation on 
exhibit 21?
    Ms. Poston. What I said is whether or not that would be 
deemed a waiver of the privilege might be something that we 
disagree on.
    Mr. LaTourette. And you have reached a conclusion that it 
does not?
    Ms. Poston. We believe that we have a legal argument that 
it does not.
    Mr. LaTourette. I am asking what you think. You think that 
it is not waived even though this showed up in a newsletter and 
was used to influence this public relations war between 
Buddhist sects? Even though here it is, and your letter has 
been published for public consumption, you still think your 
opinion or your lawyer's opinion is that you haven't waived the 
privilege? It has not been waived; is that right?
    Ms. Poston. May I have a moment, please?
    Mr. LaTourette. Sure. You can have all of the time that you 
    Mr. Burton. Does the gentleman yield back his time?
    Mr. LaTourette. I am waiting for an answer.
    Mr. Burton. I would be happy to yield my 5 minutes to you 
if you would like to continue your questioning.
    Mr. LaTourette. Thank you very much.
    Ms. Poston. Mr. Congressman, I am not prepared to say that 
this would be a waiver. If the committee would like to submit 
to me your basis in the law why you believe it is, I would be 
happy to respond to why we think that it is not.
    Mr. LaTourette. Have you had conversations with Mr. 
Langberg during the course of this representation of clients? 
Have you talked to him?
    Ms. Poston. Yes.
    Mr. LaTourette. Specifically did you talk to him about this 
letter that he has published in this newsletter?
    Ms. Poston. I wouldn't be able to disclose that because of 
an attorney/client communication and a joint confidentiality 
    Mr. LaTourette. Did you provide a copy of that letter to 
Mr. Langberg?
    Ms. Poston. Yes.
    Mr. LaTourette. Had you ever seen exhibit 21 before?
    Ms. Poston. Yes, I have.
    Mr. LaTourette. So you are aware that Mr. Langberg 
published--did you ever talk to him about that? What is his 
first name?
    Ms. Poston. Barry.
    Mr. LaTourette. Did you ever call him, Barry, why did you 
put my letter in your newsletter?
    Ms. Poston. I wouldn't be able to disclose that based upon 
attorney/client communication.
    Mr. LaTourette. Have you had conversations with Mr. 
Langberg about the letter since you became aware that it was in 
this newsletter?
    Ms. Poston. Yes.
    Mr. LaTourette. OK. Well, let me go to another exhibit. 
That is a fax, exhibit No. 38, for those following along in 
their programs. Exhibit No. 38 is a fax that you sent to Mr. 
Lucas on the 12th of July, 1995, and although we can--I wish 
the quality of the fax was a little bit better, and let me just 
flip there myself.
    You had just been told by the Justice Department the 
previous day--or you had just been told the previous day that 
the Justice Department didn't have a record of any information 
pertaining to Mr. Abe. You had also been told there was no 
evidence that a record had ever been retained at the Justice 
Department. You asked Mr. Lucas and Mr. Manuel to verify ``to 
the extent of your abilities what the phrase: `. . . or has any 
evidence of ever maintaining,' means with respect to the 
various records that were searched.''
    What did you expect your investigators to do, Mr. Manuel 
and Mr. Lucas, to comply with this request that you made on 
July 12, 1995?
    [Exhibit 38 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.117
    Ms. Poston. With respect to the communication here with an 
investigator, I would not be able to answer that based upon the 
attorney/client work product privilege; but I can assure you 
that at no time did I advise them to do something which would 
constitute a violation of the law.
    Mr. LaTourette. Maybe we can talk more in the abstract 
rather than specifically on exhibit No. 38. When you wrote 
this, it wasn't your expectation that they were going to be--I 
mean, the answer to this question was going to come from a 
search of the Federal law enforcement records contained in the 
NCIC? Where else would a person get information like this?
    Ms. Poston. The answer is no.
    Mr. LaTourette. That wasn't your expectation, OK.
    Do you remember why you made this request?
    Ms. Poston. I can't answer that. It would call for my 
communication and thought process.
    Mr. LaTourette. On July 19, 1995, which is exhibit 39, you 
sent a letter to Mr. Manuel and Mr. Lucas. If you can locate 
that for me. I want to draw your attention to the point of the 
letter that quotes, I can only conclude that since a record 
existed, which your two independent sources verified, the 
places searched and enumerated in Mr. Huff's letter must not 
have been proper locations.
    Who was Mr. Manuel's source?
    [Exhibit 39 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.118
    [GRAPHIC] [TIFF OMITTED] T3168.119
    [GRAPHIC] [TIFF OMITTED] T3168.120
    Ms. Poston. I will not be able to divulge that because it 
would be attorney/client privilege.
    Mr. LaTourette. We respectfully disagree.
    Did Mr. Manuel ever advise you that he had a source within 
the Justice Department concerning this record that is referred 
to in the letter that you can't talk to me about?
    Ms. Poston. I have to assert the same privilege.
    Mr. LaTourette. Mr. Manuel, did you receive this letter of 
July 19, 1995, from Ms. Poston?
    Mr. Manuel. I don't have a specific recollection of 
receiving it, Mr. Congressman, but I won't dispute that I may 
have received it.
    What I would like to say, though, that to the best of my 
memory, my participation in this case had ended some time 
before that. And so if I did get this letter, I don't think I 
took any action on it.
    Mr. LaTourette. But again----
    Mr. Manuel. I am just trying to answer your question.
    Mr. LaTourette. Going again to that section, which your two 
independent sources verified, did you have two independent 
sources which verified this information?
    Mr. Manuel. No. The letter went to Lucas. I think that 
refers to sources that Lucas had and a source that I may have 
    Mr. LaTourette. So you had one, and Mr. Lucas had one?
    Mr. Manuel. I didn't have one single solitary source. I 
talked to several people during the course of this from 
November-December 1994. I don't recall having any conversations 
with anyone past that date.
    Mr. LaTourette. OK. And who was your source?
    Mr. Manuel. There was not a single source, Mr. Congressman. 
If you want, I can explain my memory as to what I did in this 
    When I received notification of this case all from Mr. 
Lucas, I never talked to Ms. Poston about it directly. My 
information about this case came from Mr. Lucas. When I got 
this information, I called the office of a man, and this is 
going to be coincident, but his name was Manuel Gonzalez, who 
was the Assistant Director of the FBI in charge of 
    When I called his office, I found out that I couldn't speak 
directly to him, and the reason I couldn't speak directly to 
him, and I am not clear on this, either he had passed away, or 
he was getting some treatment for cancer or something.
    I might explain to you that I knew Mr. Gonzalez from our 
mutual service on the President's Commission on Organized 
Crime. Mr. Gonzalez was the chief investigator on that 
Commission, and I was a member of that Commission.
    So I was told that Mr. Gonzalez was not available. I then 
asked for someone in his office who could assist me in 
answering some questions about the NCIC, and I posed those 
questions to an individual, who passed me on to another 
individual, who passed me on to another individual.
    During the course of my inquiries on this matter, I may 
have talked to four or five different people. Other than Mr. 
Gonzalez's name, I truthfully do not recall the names of the 
people that I spoke to who were mostly administrative people 
and who answered hypothetical questions for me as to the 
circumstances surrounding this address and what would have 
happened or what may have happened and in that vein.
    So all that activity took place within maybe a 2-month 
period. After that, I don't recall any participation that I 
have had in answering any or making any inquiries in this case 
or anything else. I hope that is helpful.
    Mr. LaTourette. That is helpful, and I appreciate it.
    Mr. Horn [presiding]. I thank the gentleman.
    Mr. Manuel, let me ask you, has anyone from law enforcement 
ever interviewed you about this Soka Gakkai group? Had anybody 
from law enforcement, FBI, anyone, ever interviewed you?
    Mr. Manuel. I have only been interviewed on several 
occasions by members of the majority staff of this committee. I 
am a little bit distressed to see that in your report you say 
that Mr. Lucas is the only one who has cooperated. I have never 
refused to cooperate with any member of this subcommittee staff 
or this subcommittee.
    To directly answer you, I have never been approached or 
interviewed by any person from the FBI concerning this 
particular matter.
    Mr. Horn. Ms. Poston, has anyone from the law enforcement 
ever interviewed you about the Soka Gakkai case?
    Ms. Poston. No, sir.
    Mr. Horn. Let me just go back a minute to get the 
relationship of Mr. Gibbons here. He has a letter. This is 
exhibit 51. He has a very extensive letter on this whole case, 
and the part that would be relevant to Ms. Poston is on page 3.
    And he says, in addition to these activities--and that was 
a number of things on the first few pages--Ms. Poston initiated 
broad-ranging meetings and inquiries within the Department of 
Justice at Attorney General Reno's offices and at the FBI 
headquarters, Washington, DC. Indeed, in January 1995, Ms. 
Poston met with representatives of the FBI in an attempt to 
accelerate a Freedom of Information Act request that she had 
caused to be made with the Bureau. This is in relation to the 
disclosure of their findings to her and Ms. Clow might not be 
appropriate under the act. Apparently Ms. Poston redoubled her 
efforts and made a series of applications and requests through 
the Department of Justice and a former colleague of hers at 
Steel, Hector & Davis, who was then employed at the Department 
of Justice. And after a denial of her Freedom of Information 
Act requests was handed down, she made an appeal in February 
1995 and eventually was granted her request after a meeting 
with John R. Schmidt, Esquire, the then Associate Attorney 
General. It is our opinion, and this is Mr. Gibbons, that Ms. 
Poston willingly or unwittingly was trying to retrieve data 
which had been entered into an FIB data base as a result of 
inquiries instigated by her client which appeared to be, ``real 
FBI records,'' which, of course, would then corroborate to some 
extent Ms. Clow's allegations. After Associate Attorney General 
Schmidt granted Ms. Poston an appeal, she then received Richard 
L. Huff's letter indicating that indeed there was no record 
with the FBI or the Department of Justice, and so forth.
    And so where did you get your information? Was it--after 
Mr. Schmidt permitted you to have that file or what? How did 
that work?
    Ms. Poston. I am not clear what information you mean.
    Mr. Horn. This is in relation to all of the background on 
the two Buddhist sects, if you will, organizations. As you can 
see there, they have a pretty good idea either through agents 
that he, Mr. Ogden, has contacted--or not--what you were doing 
at that time. I wondered if you ever have met Mr. Gibbons, or 
is it strictly that he is using his contacts to make this 
    Ms. Poston. This is the first time that I have ever seen 
this report, and I have never heard of a Mr. Gibbons.
    Mr. Horn. Well, I can understand that, and he is writing to 
Special Agent Athena Varounis, Headquarters Supervisor, Office 
of Professional Responsibility. So here is a rather extensive 
paper, and the question would be how accurate is it in terms of 
your clients?
    Would that have made the FBI knowledgeable, or would it 
have just said that they didn't do anything? What do you think? 
Because you said no one from law enforcement ever interviewed 
you about the case.
    Ms. Poston. I am very sorry, sir. First of all, I have not 
read this report, so I don't know that I can pass on its 
accuracy. I am not sure that I am clear on your question.
    Mr. Horn. Well, the question is to what degree you were 
after the file, and you got the file based upon your contacts 
with Associate Attorney General Schmidt, and then the question 
is when did you learn some of these things before that file and 
after that file? This is dated July 30, 1997. Now, you had 
already received that file through your contacts with Mr. 
    Ms. Poston. Yes. I mean----
    Mr. Horn. July 30, 1997.
    Ms. Poston. July 11, 1995, was the letter that I received 
from Mr. Huff stating that based upon the Attorney General's 
openness and FOIA, that they were going to look for the record. 
And then they said that there was no record. That was the first 
time that I received any knowledge.
    Mr. Horn. You are part of a very prestigious law firm. Have 
you ever been disciplined by your law firm for your activities 
in this case?
    Ms. Poston. No, sir.
    Mr. Horn. You have not?
    Ms. Poston. I have not.
    Mr. Horn. Have lawyers in your firm reviewed your records 
pertaining to this case?
    Ms. Poston. They have.
    Mr. Horn. Would you say that they cleared you, or was there 
a reprimand at all?
    Ms. Poston. There was no reprimand.
    Mr. Horn. No reprimand.
    Have lawyers in your firm ever advised you not to answer 
questions about this matter because of your potential legal 
    Ms. Poston. The advice that I have received from counsel, 
sir, has been to maintain--excuse me. Excuse me.
    Excuse me, please. I misunderstood my counsel. I would not 
be able to divulge to the committee the advice that I have 
received from my counsel.
    Mr. Horn. It is not from your counsel, it is from the 
lawyers in your firm. Did they ever advise you not to answer 
questions about this matter because of your potential legal 
    Mr. Palmer. To clarify, the lawyers in her firm are myself, 
and I am her counsel.
    Mr. Horn. Ms. Poston, isn't it true during your interview 
with the committee staff, one of the reasons that you refused 
to answer questions was because of your potential criminal 
    Ms. Poston. No, it is not.
    Mr. Horn. This is an interview with the committee staff?
    Ms. Poston. Yes.
    Mr. Horn. Do you know of any of the partners of Steel, 
Hector & Davis that have brought your activities to the 
attention of law enforcement?
    Ms. Poston. I have no personal knowledge of that.
    Mr. Horn. Have you ever been disciplined by the Florida bar 
for your activities in this case?
    Ms. Poston. No, sir.
    Mr. Horn. Do you know if Steel, Hector & Davis has brought 
any of your activities in this case to the attention of the 
Florida bar? In other words, has your own firm ever brought any 
of your activities in the case to the attention of the Florida 
    Ms. Poston. I don't know.
    Mr. Horn. I am going to yield 5 minutes to Mrs. Chenoweth-
    Mrs. Chenoweth-Hage. Thank you, Mr. Chairman, and I would 
like to yield my time to Mr. LaTourette.
    Mr. LaTourette. I thank you very much. I thank my 
    Ms. Poston, if we could go to exhibit No. 9, I think you 
answered some questions about that before. I want to go back to 
this notion--because you may remember when I was here before, I 
asked the chairman to schedule a full committee meeting to talk 
about the possibility of contempt of Congress, and so I want to 
be clear. We went over a little bit before about how we have a 
difference of opinion about your communications have been 
published in a newsletter. You reached the conclusion there 
have been no waivers.
    I want to ask about the multipage document which is exhibit 
No. 9. The reason that I ask you that, I assume again based 
upon your vast experience in the law and expertise as a member 
of the bar, you are aware that whoever conceals--receives, 
conceals or retains the same, that is being NCIC records, with 
the intent to convert it to his use or gain, knowing it to have 
been stolen, embezzled, purloined or converted has committed a 
crime. Are you aware of that statute?
    Ms. Poston. Yes.
    Mr. LaTourette. Now, exhibit No. 9, which is the multipage 
document, you have forwarded to your investigators an 
attachment that has two pages from a fellow by the name of 
George Odano. Who is George Odano?
    Ms. Poston. Mr. Odano is a representative of the client 
Soka Gakkai.
    Mr. LaTourette. OK. In the attachment to the fax--and, 
again, is this a document that you sent to your investigators?
    Ms. Poston. Yes, I believe it is.
    Mr. LaTourette. And all three pages?
    Ms. Poston. Yes. The fax cover sheet indicates so.
    Mr. LaTourette. And it says, ``Please get the answers to as 
many of these as you can and be specific.'' I assume that what 
that refers to are the questions that are contained in the two-
page attachment from Mr. Odano; is that right?
    Ms. Poston. Yes.
    Mr. LaTourette. And specifically No. 1, the first question 
that you want them to get the answer to, ``Is the name on the 
NCIC file Nobuo Abe?''
    Ms. Poston. Yes, I see that question.
    Mr. LaTourette. So your instructions to your investigators 
in exhibit 9 was to determine whether or not the name on the 
NCIC file belonged to the fellow who is the subject of some 
litigation with your client; is that right?
    Ms. Poston. All I can say, Mr. Congressman, is that the 
document speaks for itself.
    Mr. LaTourette. Yes, it does. Let me tell you what I think 
the document says, and that is that you were asking for 
information from the NCIC data base, and I will tell you if you 
are aware of the statute, that section of the U.S. Code that we 
were talking about earlier, it is a felony to give out such 
information and to convert it to your own use. And so the 
question I would have is how then--well, I guess I am 
soliciting your opinion as an attorney or that of your counsel 
next to you. Why haven't we waived the attorney/client 
privilege yet?
    This document is talking about--which does speak for 
itself--is talking about the distribution of confidential law 
enforcement information in violation of the U.S. Code. Isn't 
that the way that you read it as a lawyer?
    Mr. Horn. We have two votes on the floor. Since Mr. Burton 
has gone over to get his votes in and will be back soon, and we 
need to take a recess so the rest of us can vote--has there 
been an answer to your question?
    Mr. LaTourette. Not yet.
    Ms. Poston. Can you repeat it, please?
    Mr. LaTourette. I can't, but let me--do you want to stop, 
Mr. Chairman? I can come back and finish.
    Mr. Horn. If you would like to finish the question, go 
ahead. I just wanted to note that we are going to recess.
    Mr. LaTourette. I appreciate the courtesy.
    I would like to ask it this way: I read you the part of the 
statute, 18 USC 641, which makes it a crime for people to 
conceal or retain this information. Isn't it an accurate 
reading of the facsimile that you sent in exhibit 9 to your 
investigators that you were asking to receive NCIC information 
which included to know whether the name on the file belonged to 
Mr. Abe; whether or not the events took place on March 19, 
1963; whether or not the date of birth was December 19, 1922? 
That is NCIC information that you are asking your investigators 
to get, isn't it?
    Ms. Poston. Specifically I cannot comment on this letter 
that the client wrote which I forwarded on as to what the 
client was asking, but I can tell you that at no time did I 
ever ask any of my investigators to go and access NCIC or get 
any record or believe that they ever had access to NCIC.
    Mr. LaTourette. My time has expired. I would like to come 
back to that during another round, with the courtesy of the 
    Mr. Horn. I thank the gentleman, and we will try to 
accommodate that. Right now we are going to be in recess until 
    Ms. Poston, if you would stay because of the second panel, 
we would appreciate it. Thank you.
    Mr. Burton. The committee will be reconvened, and as I 
understand it, Mr. LaTourette, the honorable former prosecutor 
from the great State of Ohio, is continuing his questioning.
    Mr. LaTourette. Thank you very much, Mr. Chairman, and Ms. 
Poston, I apologize for having to leave for a minute for votes 
on the floor, but I was talking to you about exhibit 9, I 
think, and there was a previous exhibit. Can you just run 
through with us, you were a former Assistant U.S. Attorney. 
What else have you done in your practice of law?
    Ms. Poston. I believe I provided my resume to the 
committee, but when I graduated law school----
    Mr. Burton. I'm sorry, could you pull that mic closer, 
    Ms. Poston. After a very short period of time at the Dade 
County State Attorney's Office, I did go to the Department of 
Justice as an Assistant U.S. Attorney in Miami.
    Mr. LaTourette. OK. And then how long did you serve there?
    Ms. Poston. About 2\1/2\ years, and then I transferred to 
the strike force in Cleveland, but it was not quite 5 years 
total with Justice.
    Mr. LaTourette. When were you in Cleveland?
    Ms. Poston. I'm sorry?
    Mr. LaTourette. When were you in Cleveland?
    Ms. Poston. 1979 to about, I'm sorry, about 1977 to 1979.
    Mr. LaTourette. OK. Going back to exhibit No. 9 again, 
you've acknowledged in response to my previous questions that 
this was a fax that you sent to Mr. Manuel and Mr. Lucas and 
you also acknowledged that you asked them to get answers to 
questions, that's what the document speaks for itself, we went 
through that. Clearly anybody that understands the English 
language indicates that you were asking them to get answers to 
as many of the questions as you can. And the questions to which 
the cover sheet refers to are contained on the letter that's 
attached from Mr. Odano, who you've identified as a 
representative of your client, and again, going through the 
questions, the first one is the name on the NCIC, and we are 
not confused about what NCIC stands for. You acknowledged that 
that's the national data base that we've been talking about, 
the subject of the hearing, that's what that refers to?
    Ms. Poston. Yes.
    Mr. LaTourette. No confusion about that. The question about 
whether or not the name on the file relates to Mr. Abe, and 
then next there's a reference about whether or not the date of 
birth on the NCIC file is December 19, 1922, which I assume is 
the gentleman's birth date, and it asks you to--well, you're 
asking your investigators to figure that out. Now, I was asking 
you before about the fact that we have a criminal statute that 
makes it unlawful for people to come into possession of this 
information. Is there any reason that you have, any reason to 
believe that your investigators would have lawfully come in 
possession of the NCIC file on this gentleman?
    Ms. Poston. Well, first of all, I think I want to be 
certain that my answer before we took the break, Mr. 
LaTourette, is clear because the--I know the Department of 
Justice searched the NCIC because I made a request for that in 
my FOIA request for them, and I know also that I never asked my 
investigators ever to obtain any information illegally, and 
that would also include the NCIC.
    Mr. LaTourette. No. I understood your answer before the 
break, and that is you never asked them to illegally obtain 
NCIC information. What I'm asking you is do you have any reason 
to believe that your investigators at this time on November 10, 
1994, I guess as Mr. Odano's letter, had had lawful possession 
of the NCIC information?
    Ms. Poston. First of all, I believe, Mr. LaTourette, I 
don't have any knowledge as to whether my investigators ever at 
any time had possession of any information from NCIC. Now, I do 
not know what all the rules and restrictions may be with 
respect to when you can or cannot release information from 
there. I know I did get information from some agencies in the 
Department of Justice that searched their records. Whether they 
searched their records in NCIC and gave me stuff, I don't know.
    Mr. LaTourette. Well, again, would you acknowledge with me 
based upon your experience as a former U.S. Assistant Attorney 
General that 18 U.S.C. 641 does make it a crime in this country 
to receive, conceal or retain NCIC material that has been 
embezzled, stolen, purloined or converted; we are not in 
confusion about that?
    Ms. Poston. Well--are you reading from the statute?
    Mr. LaTourette. I am.
    Ms. Poston. And it mentions NCIC in the statute?
    Mr. LaTourette. Uh-huh. It specifically is talking about 
NCIC documents.
    Ms. Poston. But does it----
    Mr. LaTourette. Well, let me, let me indicate to you that 
it is----
    Mr. Burton. I yield the gentleman my time.
    Mr. LaTourette. Thank you, Mr. Chairman.
    OK. I think the statute covers it, but it doesn't 
specifically mention NCIC. Let me ask you this. Based upon your 
experience, do you believe it to be a crime to be in unlawful 
possession of NCIC information or distribute it, publish it?
    Ms. Poston. Well, if you're assuming that it's unlawful 
possession, the answer would have to be yes.
    Mr. LaTourette. I'm asking what your understanding is. I 
know what my understanding is. Is that your understanding? Do 
you think it is against the law to have NCIC, the information 
and distribute it if you haven't come into that--if you're not 
using it, even for law enforcement purposes, which is the whole 
theory behind the NCIC data base?
    Ms. Poston. I'm looking at the statute now that's been 
provided to me, and if the information was obtained, where this 
statute reads, unlawfully it would be a crime in my opinion, 
but I also want to say, one thing is that I don't understand 
how this committee thinks that I did something wrong or could 
consider it improper that the acquisition of government 
property, in this case we are speaking about information, when 
in the first place it didn't exist and in the second place if 
it did the government ruled that I was entitled to it. I don't 
understand what the committee thinks that I did wrong.
    Mr. LaTourette. Well, let me back up for just a minute 
because at the time that the information--I mean, let's sort of 
walk through this step by step. The first indication is that 
someone from the Federal Bureau of Prisons, again your 
representative of your client's letter in paragraph six says 
that the information that they received from the Federal Bureau 
of Prisons was much more thorough than what was provided. So in 
the first instance before the Justice Department ruled on 
anything somebody at the Federal Bureau of Prisons, either with 
your help or without your help or with your investigator's help 
or without your investigator's help, secured arrest records and 
provided them to your client. I mean isn't that the plain--
going back to the document speaks for itself, isn't that the 
plain meaning of that paragraph?
    Ms. Poston. Just a moment, please. What you're asking me to 
answer I cannot answer because of conservations with clients or 
with my investigators, sir. I wish that I could answer you, but 
I cannot.
    Mr. LaTourette. And when we started, this entire line of 
questioning was on that claim you continue to make, and that is 
the attorney-client privilege, and so maybe the best way to get 
about it is a hypothetical and I would ask you this. If, if 
documents were obtained from the NCIC by an employee of the 
Federal Bureau of Prisons unlawfully, if that information was 
then put in the possession of your client and/or your 
investigators, if then further Mr. Lucas or somebody else 
acting on your behalf conducted an NCIC search outside the 
scope at which that data base is permitted to be used and came 
into possession of it, and if then your client is asking you to 
go double back because there's a problem here, the stuff that 
they stole from the Federal Bureau of Prisons is different from 
the stuff that your investigators took from the NCIC, and 
that's the import and the meaning of this letter of November 
10, 1994, I put to you that that is the commission of a crime, 
and if that is in fact the commission of a crime, the attorney-
client privilege doesn't cover that instance, does it?
    Ms. Poston. With the greatest of respect, Mr. LaTourette, I 
am not going to answer on a hypothetical. I'm here to try to 
answer based on the facts as I know them, and second, I have no 
knowledge that there has been any crime committed here either 
by myself or by my investigators, and therefore, I see no need 
to have to assert the fifth amendment.
    Mr. LaTourette. You can assert it any time you want to. I'm 
not asking you to assert it. Again, and this will be the last 
question because I guess I'm getting nowhere in a hurry, going 
back to subparagraph one of this letter of November 10, 1994, 
that do you not specifically--I mean you're the conduit here. 
You've asked your investigators to answer questions put to you 
by a representative of your client, and specifically, question 
No. 1 is, is the name on the NCIC file Nobuo Abe. That is the 
question, and are you not by transmitting this to your 
investigator asking for information from the NCIC data base? 
Isn't that what that asks?
    Ms. Poston. I cannot answer the question, sir.
    Mr. LaTourette. Because of the attorney-client privilege?
    Ms. Poston. Because of the attorney-client privilege, yes.
    Mr. LaTourette. OK. Mr. Chairman, I really don't have any 
more questions.
    Mr. Burton. I think that concludes any questioning we have 
of this panel, and so we thank you for being with us. The next 
panel will be Ms. Poston again.
    Ms. Poston. Excuse me, sir, Mr. Chairman. There is an 
answer that I gave to you with respect to exhibit 19, and I 
would like to have the opportunity to clarify my response.
    Mr. Burton. Let me get exhibit 19 before me real quickly 
here so we can see what we're talking about. OK. I have it. Go 
    Ms. Poston. Yes, sir. After having an opportunity, Mr. 
Chairman, to refresh my recollection regarding the event that 
happened over 6 years ago and using the document that the 
committee provided me this morning, I believe that I 
inadvertently misinterpreted your question, Chairman Burton, 
and overstated my answer. I believe that I said words to the 
effect that I did not know anything about a source at the 
Bureau of Prisons when in fact the answer should be and I 
correct at this time, Chairman Burton, my answer would be that 
I do not know any source at the Bureau of Prisons.
    Mr. LaTourette. Mr. Chairman, could I ask a question on 
that clarification?
    Mr. Burton. Yes, you can.
    Mr. LaTourette. I appreciate it, and this actually goes to 
Mr. Manuel and Ms. Poston, and that is, Mr. Manuel, if you go 
to exhibit No. 6 for just a second, and that is, that's a fax 
that's to the attention of Rich and I assume Rich is Mr. Lucas; 
is that right?
    [Exhibit 6 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.032
    Mr. Manuel. Yes, Rich would be Rich.
    Mr. LaTourette. That would be a message to Mr. Lucas. The 
message part says, Rebekah Poston left a message on the machine 
last night. She said the date is December 19, 1922, which we 
know from my previous discussion with Ms. Poston was the birth 
date of the gentleman that we are talking about. There was 
never any time served. I have no idea why that info is there. 
Home phone, blah, blah, blah. Do you still want me to call the 
Bureau of Prisons. Did you send that document?
    Mr. Manuel. No, I didn't. It was sent by a person who 
worked in my office at the time.
    Mr. LaTourette. Do you have any knowledge----
    Mr. Manuel. If you see the sender down there, the name is 
    Mr. LaTourette. Do you have any knowledge of this document?
    Mr. Manuel. I don't recall seeing it.
    Mr. LaTourette. Do you have any idea why there would be a 
reference to the Bureau of Prisons?
    Mr. Manuel. No, not really, not in this document.
    Mr. LaTourette. And specifically to the question or the 
clarification that Ms. Poston was just giving on exhibit 19, 
there's a statement in a memo from Mr. Lucas on the letterhead 
of your company about a source at the Bureau of Prisons. Do you 
have any knowledge about any source at the Bureau of Prisons?
    Mr. Manuel. What are you referring to?
    Mr. LaTourette. Exhibit 19. That's the clarification Ms. 
Poston was just giving to the chairman.
    Mr. Manuel. The only knowledge I have of a source, so-
called source at the Federal Bureau of Prisons, is what I was 
told by Mr. Lucas. Mr. Lucas had advised me that there had been 
some information obtained from a source at the Federal Bureau 
of Prisons. Now that came from Lucas. Did not come from Ms. 
Poston to me.
    Mr. LaTourette. But he represented to you that that 
information came from Ms. Poston, did he not?
    Mr. Manuel. I don't think, I don't think that he made a 
representation one way or another. He may have but I don't 
recall that.
    Mr. LaTourette. Well, that exhibit 19 specifically, did you 
receive this memo? I mean it's addressed to you from Mr. Lucas.
    Mr. Manuel. I probably did, but I don't have any specific 
recollection of receiving it right now. I'm not denying that I 
    Mr. LaTourette. But again we have learned the lesson from 
Ms. Poston the document speaks for itself, and at least he 
appears to be in the second paragraph, she stated a handwritten 
record was being kept by their source at the Federal Bureau of 
Prisons, and that's what it said. Not that you can vouch for 
the truthfulness, but at least that's what Mr. Lucas was 
writing to you; is that correct?
    Mr. Manuel. He's writing this to me at the same time that 
he's dealing with the other side in this to sell information to 
them and go to work for them. So at this stage I have to tell 
you I'm very skeptical of whatever Mr. Lucas says or what he 
wrote even at the time.
    Mr. LaTourette. But again, and I appreciate the chairman's 
indulgence, going back to the exhibit that I was just talking 
to you about, Ms. Poston, and that appears to--gotten a letter 
from Mr., what was his name George Odano, Mr. Odano, that also 
makes reference to a source at the Federal Bureau of Prisons in 
subparagraph six, doesn't it, Ms. Poston? Was it six? I'm 
    Ms. Poston. Yes, yes, I think it's clear.
    Mr. LaTourette. So--and so you--in your clarification to 
the chairman are you saying that you are not aware of any 
source at the Federal Bureau of Prisons providing information 
to you, your investigators or your client when your client in a 
document that you have been willing to discuss with me 
specifically indicates to you that I've already informed you 
the information that our source at the Federal Bureau of 
Prisons gave us was much more detailed. Are you still saying 
you're not aware of any source at the Federal Bureau of 
    Ms. Poston. No, that's not what I was saying.
    Mr. LaTourette. You said you didn't have a source.
    Ms. Poston. No, that's not what I said.
    Mr. LaTourette. I'm sorry, what did you tell the chairman?
    Ms. Poston. Mr. Chairman, I had said earlier to you that I 
did not know anything about a source at--the source at the 
Bureau of Prisons and then I corrected that to say that I did 
not know a source at the Bureau of Prisons.
    Mr. Burton. Let's delve into that just a little bit. Did 
you know anything about a source at the Federal Bureau of 
    Ms. Poston. I can't answer because of the privilege. I'm 
sorry, I wish I could answer you, sir. I have been directed by 
my client and I believe I have a legal basis for that in good 
    Mr. Burton. Do you have any more questions, Mr. LaTourette?
    Mr. LaTourette. No.
    Mr. Burton. I thank this panel for being with us and I once 
again apologize for all the time it took. Mr. Lucas, do you 
have a final comment?
    Mr. Lucas. Mr. Chairman, in your subpoena to be here today, 
you requested additional documents be produced today. With the 
understanding that the instruction the chairman gave witnesses 
to answer questions applies to documents, I have a set of 
documents that are responsive.
    Mr. Burton. Well, thank you very much. Would somebody go 
down and get those documents? We'll take a look at those. Thank 
you very much. Thank you very much, and now the next panel is 
Ms. Poston, we appreciate you remaining at the table, John 
Schmidt, John Hogan and Richard Huff. Mr. Schmidt, Mr. Hogan 
and Mr. Huff, would you please stand and raise your right 
    [Witnesses sworn.]
    Mr. Burton. Do any of you have an opening statement you 
would like to make?


    Mr. Schmidt. Mr. Chairman, I'd like to make just a very 
brief statement and describe the circumstances of this matter 
as I recall them, because they're not entirely consistent with 
the statement that you read earlier, and I will be very brief.
    My recollection of this matter is that I met with Ms. 
Poston, who complained about a decision that had been made 
denying a freedom of information request that she had submitted 
on behalf of her clients. She told me she thought it was wrong 
and contrary to law and she intended to pursue her client's 
interests by litigation if necessary.
    I then met with Dick Huff, who was then, still is now, the 
Co-Director of the Office of Information and Inquiry, which was 
a part of the Justice Department that reported to me, and I 
asked him about it and he described the case. He described the 
decision that he had made and why he had made it, and at some 
point in the course of that discussion, I think I asked him or 
somehow the issue came up, did we know whether we even had any 
records of a kind that were being requested, and he indicated 
that we did not, and I said why don't we find out and if we 
find out we don't have any records, then we could disclose that 
and that would be harmless and we would put this entire matter 
to rest without the need for any further argument or 
    He indicated a concern that we not change our general 
policy of not confirming or denying the existence of records of 
this kind because we didn't want to get into a situation where 
our failure to deny could be construed as a confirmation, and I 
said I thought that was the right policy but it didn't seem to 
me it was going to undermine that if we made an exception in a 
case like this one, disclose that we didn't have any records 
and avoided the need to continue and argue and litigate over 
something that didn't exist.
    He then went off and went through the process of finding 
out whether in fact we had any records and at some point came 
back to me, I don't remember whether we met again or he called 
me, indicated that we had no records and I said I think we 
ought to go forward and disclose that. He then wrote the letter 
that you've seen. I don't remember whether he showed me the 
draft of the letter or not, but he then sent it. As far as I 
was concerned that was the end of it and frankly was the last 
time I ever thought about it until I got a call from your 
counsel about 2 weeks ago.
    Mr. Burton. I want to get opening statements from everybody 
but I'd like to just give you a question that you can answer 
after they make their opening statements, and that is, was 
there ever any of this information, because it has been stated 
in documents that we have here, that it was purged, which means 
removed? So you could just wait and think about that and we'll 
get back to you.
    Mr. Schmidt. I'll answer right now. I have no knowledge of 
whether there was any information. All I know is that when Mr. 
Huff went through the process and came back, he said we have 
found we had no records or information of the kind that was 
being requested and that was therefore--it seemed to me a 
totally harmless disclosure that we could make and put this 
whole matter to rest.
    Mr. Burton. That was a little different than normal policy, 
though, was it not, to disclose that?
    Mr. Schmidt. As I say, we had a general policy of neither 
confirming nor denying and I think that is important, but 
making an exception in a case like this doesn't undermine that 
general policy. We still have that as a general policy. It's 
just like the policy we have of not confirming or denying the 
existence of investigations. That's our general policy, but 
there are a lot of exceptions where we make an exception for 
some reason and it doesn't allow anybody to therefore assume 
that because we haven't denied we are conducting an 
    Mr. Burton. We'll get back to you in just a minute. Would 
you like to make an opening comment?
    Mr. Hogan. Briefly, sir, if I could. Mr. Chairman, my name 
is John Hogan. I served as the Attorney General's Chief of 
Staff, and I also worked for her when she was the State 
Attorney in Miami. I was a prosecutor there for about 15 years, 
serving most of that time as her chief assistant in Miami as 
    I met Ms. Poston through her sister, who was a secretary in 
the office, and when Ms. Poston eventually called me when I was 
here in Washington and started talking about a FOIA request, my 
response was very simple. I explained to her that I did not get 
involved in FOIA requests, that the Attorney General's Office 
does not get involved in FOIA requests. I simply referred her 
to the career people within the Department who handle those 
    I think she naively thought that because of where I was 
sitting I would have the ability to influence those decisions. 
I didn't. I simply sent her to Mr. Huff's office to handle 
those matters. Periodically she would continue to call me and 
at first I simply told my secretary take a message and I did 
not return the calls. After a while, I told my secretary not to 
even bother me when Ms. Poston called because I had done what I 
was going to do and that was refer her to the career people who 
handle these decisions.
    Eventually I became aware that she was going to take an 
appeal of Mr. Huff's decision. I had never spoken to Mr. Huff 
about the decision and no way participated in the decision, in 
no way attempted to influence his decision. I simply let--I did 
not speak to Mr. Schmidt either about it. I simply let Mr. 
Schmidt's people know there was a decision coming their way. I 
wanted to make them absolutely clear that I had not taken any 
position on the merits, that I did not think it was appropriate 
for me to be involved in the matter and I simply passed these 
matters off to the people who were the actual decisionmakers, 
who were appropriate decisionmakers. I played no role in the 
decision, the Attorney General played no role in the decision 
and no one else in the Attorney General's Office played any 
role in the decision.
    I just wanted to make that clear.
    Mr. Burton. Mr. Huff.
    Mr. Huff. I have no statement.
    Mr. Burton. Very good. We will start off I think, Mr. 
LaTourette, I know you have time constraints. Did you have any 
questions you would like to ask at the beginning of this panel?
    Mr. LaTourette. No.
    Mr. Burton. OK. We'll start with the chief counsel then and 
you have 30 minutes.
    Mr. Wilson. Good afternoon, all, and hopefully we'll get 
through this fairly quickly.
    Mr. Schmidt, yesterday you made a statement to a newspaper 
and you said, I made exceptions in particular cases that did 
not undermine the policy. At least that's what you were quoted 
to have said, and you have just explained to us what the policy 
was, and until this statement was made to the Associated Press 
yesterday, we weren't aware that there were other cases. What 
were the other cases?
    Mr. Schmidt. I don't recall saying to the reporter I made 
exceptions. I told him what I think I just told you. He called 
me, I didn't make a statement. But I did tell him what I just 
told you that in this case it seemed to me it wasn't going to 
undermine our general policy and it would serve the purpose of 
putting to rest a controversy and saving everybody, including 
the taxpayers, the expense of having to litigate over it, but 
there was no other case that I remember where I made an 
exception to that policy.
    Mr. Wilson. So this was indeed the only case that went to 
the policy you described earlier?
    Mr. Schmidt. The only case where this issue was ever raised 
with me, but it was also the only case where I ever made that 
    Mr. Wilson. Did you have any involvement in any other FOIA 
cases while you were Associate Attorney General?
    Mr. Schmidt. Yes, occasionally if someone called and 
complained, although it was rare, it was a part of the Justice 
Department that ran itself, but there were occasional cases 
where people would call and complain. You're asking for 
    Mr. Wilson. I'm actually asking very specifically. Were 
there any other cases involving the policy to neither to 
confirm nor deny the existence of----
    Mr. Schmidt. No, I don't recall any other case where that 
issue was raised with me.
    Mr. Wilson. Mr. Hogan, just before I get into this, you 
mentioned that you did at one point let staff know in the 
Associate Attorney General's office about this issue. Who did 
you contact?
    Mr. Hogan. I now know, I didn't know this when we spoke a 
few weeks ago when my memory was so faded because at that point 
I had not had a chance to look at documents, what I did was 
called when I learned that there was a potential appeal--Nancy 
McFadden was Mr. Schmidt's top aid, and I let her know that 
there was an issue coming. I wanted to look into whether or not 
they actually handled appeals. The question you just asked Mr. 
Schmidt, at the time I did not know the answer to and whether 
or not they would take an appeal from Mr. Huff's office and 
simply let her know that--to make sure there's no 
misunderstanding, that I had no position on the issue and had 
simply played the traffic cop sending her--sending Ms. Poston 
in her direction because I didn't want there to be any 
misunderstanding as to what my role was.
    Mr. Wilson. Did you ask anybody in the Associate Attorney 
General's office to meet with Ms. Poston?
    Mr. Hogan. No. I simply said that Ms. Poston wanted to 
appeal. I didn't know how--what Mr. Huff's power was vis-a-vis 
Mr. Schmidt, to be completely honest, and I said look into the 
issue of whether or not this is an appeal that you would want 
to take, I don't know what your procedures are. I simply knew I 
wasn't going to be involved in it and I wanted to let her know 
that there was no misunderstanding that I had no position.
    Mr. Wilson. Ms. Poston, prior to your actually lodging the 
FOIA request did you have an expectation that the Justice 
Department would grant your request?
    Ms. Poston. I thought at the beginning it would be 
difficult because I was making a request for a record for 
someone that I did not represent, and in all my past FOIA 
experiences I had represented the party whose record I was 
seeking, but then when I got the memorandum from Wilmer Cutler 
that the Privacy Act did not apply to foreign nationals then I 
felt that I had a good legal argument.
    Mr. Wilson. Mr. Hogan, you mentioned earlier that there was 
the prospect and--or Mr. Schmidt, you also mentioned it, that 
there was the prospect of litigation in this case. Mr. Schmidt, 
would the litigation have been successful if Steel Hector & 
Davis had litigated to obtain this----
    Mr. Schmidt. I don't think so based upon what Mr. Huff had 
told me. I think he thought we had a very defensible position. 
My view, as I indicated before, was there was no point in 
litigating over something that didn't exist so we could avoid 
the issue, but I think that I didn't really get into the issue 
beyond talking to Mr. Huff. But I think he was comfortable that 
we had a defensible basis for refusing to disclose any 
information here.
    Mr. Wilson. Mr. Huff, would a plaintiff have been able to 
prevail asking for the record that Ms. Poston asked for in this 
    Mr. Huff. I think it would be very unlikely.
    Mr. Wilson. Very unlikely.
    Mr. Huff. Yes.
    Mr. Wilson. If you could, Mr. Huff, just--we'll start at 
the beginning of this, if you could explain very briefly 
because you want to get out of here and we don't have much 
time, what is the Justice Department policy regarding the 
confirmation or denial of criminal records about a third 
person? We understand that if you go and ask for a record that 
pertains to yourself you have access to that, but if I were to 
go and ask for somebody else's criminal record, what is the 
Justice Department's policy?
    Mr. Huff. Generally, we would refuse to confirm or deny 
whether or not such records existed. There are a few exceptions 
to that, such as if the subject of the request is deceased or 
if the subject of the request has consented to it or if the 
Department of Justice has officially made it public. For 
instance, do you have any records on John Hinckley, Jr., yes, 
we do.
    Mr. Wilson. Now, is this policy in place for noncitizens as 
well as U.S. citizens?
    Mr. Huff. That has been our general practice, yes. There 
are exceptions where we have not followed it for noncitizens.
    Mr. Wilson. Now why is this policy in place?
    Mr. Huff. Generally, it is to protect the privacy of an 
individual who does have a law enforcement record about him or 
her, where that fact has not previously been officially 
confirmed by the Department or one of the other circumstances 
that I mentioned.
    Mr. Wilson. Now, my understanding from having spoken with 
you before is that if there was a situation where people who 
came and asked for records pertaining to third parties and 
there were no records and the Department confirmed that there 
was no record, if the policy was consistently applied, then 
when there was a record the Department would not be able to 
reply that there was no record so it would be tantamount to 
confirming there was a record. Is that the basic----
    Mr. Huff. If we did that in all cases, certainly that would 
be so.
    Mr. Wilson. Now, I mean we've heard today, Ms. Poston, 
that, briefly, but is it true that your initial FOIA requests 
for Mr. Abe's records were rejected?
    Ms. Poston. No.
    Mr. Wilson. At the Department of Justice with FOIA request 
at Main Justice?
    Ms. Poston. Well, when you say Main Justice, you don't 
include Immigration and you don't include Bureau of Prisons?
    Mr. Wilson. I'm not including INS.
    Ms. Poston. Then the answer is yes.
    Mr. Wilson. Now, having read some of the papers, Mr. Huff, 
Ms. Poston argued that her FOIA request should be granted 
because of the public interest in Mr. Abe's arrest record and 
because the Privacy Act did not apply to a foreign national. 
Why did you reject her appeal? Did those arguments carry any 
water with you?
    Mr. Huff. Well, she was certainly right with regard to the 
Privacy Act, but as a general proposition aliens have privacy 
interests as well that are protectable under the Freedom of 
Information Act. That information can be protected. And 
certainly under the FOIA we aren't required to assert 
exemptions. In fact, that's the whole idea behind discretionary 
    Mr. Wilson. I'll yield for a moment to the chairman of the 
    Mr. Burton. Something's been kind of bothering me, Mr. 
Hogan. You're the Chief of Staff for the Attorney General.
    Mr. Hogan. Yes, I was.
    Mr. Burton. You were. Why would you even call Mr. Schmidt 
to tell him that you weren't taking any position, but that he 
might be contacted by Ms. Poston?
    Mr. Hogan. I did not contact Mr. Schmidt. I never spoke to 
Mr. Schmidt. I called his staff.
    Mr. Burton. Why would you do that?
    Mr. Hogan. Simply to let them know--I wanted to make sure 
they understood that if my name was used in any way that it 
wasn't--that I had taken no position on the case.
    Mr. Burton. Wouldn't they have, if they got a call from Ms. 
Poston or anybody and said you know, Hogan said that you ought 
to help us or something, wouldn't they have called you to 
confirm that?
    Mr. Hogan. I would assume so.
    Mr. Burton. Then why would you have to call in the first 
    Mr. Hogan. Out of an abundance of caution, sir, so there'd 
be absolutely no misunderstanding.
    Mr. Burton. When the Chief of Staff of the Attorney General 
of the United States calls somebody who's a subordinate in the 
Justice Department or one of their staff people, the tone of 
voice, voice inflection, no matter what it is, can convey all 
kinds of things and just by virtue of the fact that you called 
it could have meant you know she's going to call and, you know, 
do what she can for her.
    Mr. Hogan. Just the opposite, sir.
    Mr. Burton. Did you make calls like that in the past?
    Mr. Hogan. Yes, sir.
    Mr. Burton. For other people where they called you and said 
we'd like something and you called and said you may be getting 
a call?
    Mr. Hogan. If there's ever any misunderstanding as to what 
I have done I would attempt to clarify it. Ms. McFadden, who 
was Mr. Schmidt's main assistant, was a very seasoned lawyer, a 
very competent woman. All I wanted to make sure that she 
understood was that even as to whether or not they heard this I 
had no opinion.
    Mr. Burton. But this has happened before, you've called 
like that before on other issues?
    Mr. Hogan. If I was concerned that someone would 
misunderstand what the role--what my role had been in 
something, yes, I would clarify it. Just for the reasons you 
said, sir.
    Mr. Burton. But you would do it without them initiating a 
call to you?
    Mr. Hogan. In some cases yes.
    Mr. Burton. OK thank, you.
    Mr. Wilson. Just following up on that, Mr. Hogan, have you 
ever made a call on a Freedom of Information Act request 
before, a call to anybody else in the Department of Justice 
about somebody else's Freedom of Information Act request.
    Mr. Hogan. The only other calls I had made, Mr. Huff's 
staff would routinely consult me on FOIA issues. There were 
certain things that statutorily if some document was a former 
Attorney General Office document and there was a FOIA issue 
with it, they would have to go to our office just like they 
would go to a component and occasionally Mr. Huff's deputy 
would call me and I would call her back and it dealt with FOIA 
issues. So yes, I have made phone calls on a FOIA issue before. 
I relied very heavily on Mr. Huff and his staff as to the law 
because I don't perceive myself as an expert in that area, but 
yes, I have made phone calls on FOIA issues.
    Mr. Wilson. What I'm trying to get at here, not FOIA 
requests for information from the Office of the Attorney 
General or pertaining to yourself or your records, the Attorney 
General's records, but on a matter that goes to a Freedom of 
Information Act request about a third party that's not in the 
Department of Justice.
    Mr. Hogan. To be completely honest, until I sat here this 
morning I was never really clear that was even a third party 
issue. I knew it was a FOIA request. I sent it to the FOIA 
people. I never focused on what the issue was. So any time I 
would get a phone call on FOIA, I simply sent it to the career 
lawyers who handled the FOIA issues. I never got involved in 
the substance of them.
    I guess what I'm saying is, I don't know the answer to your 
question because I never really focused on what the issues were 
and your question just had a specific issue contained in it and 
I don't know. If I had a FOIA question from someone outside the 
Department, I sent it to Mr. Huff's staff. That was whether it 
was a situation where like Ms. Poston called me, it was whether 
I picked up the phone and some citizen from somewhere in the 
United States had a question about FOIA and what went wrong, I 
sent them all to Mr. Huff's office, and I simply--they were the 
career people who handled those matters. That's where I would 
send anyone who had a FOIA issue.
    Mr. Wilson. Right. And I understand your answer as far as a 
basic FOIA request, but I'm trying to pare away and determine 
whether you, and I'll go to sort of the bottom line of the 
concern here, is that you're the Chief of Staff to the Attorney 
General of the United States, which is not the first place a 
FOIA request is lodged. It requires getting through certain 
traps to get to you, and whereas I can understand questions 
coming to you that pertain to FOIA requests that go to 
documents that are important to the Department of Justice, your 
documents, the Attorney General's documents, it does seem a 
little unusual for you to take any phone calls at all about a 
Freedom of Information Act request, about something else that's 
outside the Department, and I didn't get a firm sense of the 
answer on that.
    Mr. Hogan. The reason I took the call--when I get a message 
Rebekah Poston is on the phone, I knew who she was. She was an 
acquaintance, definition of friend is a nebulous one, but I 
knew who she was. I took the call. She began explaining she had 
a problem with FOIA. I said, oh, FOIA, needs to go to a certain 
office within the Department. I didn't--I told her--she asked 
me questions like, as I recall, do you know Tom Kelly, who's a 
lawyer in the FBI. I said, yeah, I know him, but if you have a 
question with Main Justice and there's a FOIA issue, it goes to 
Mr. Huff's office. I simply did not get involved in it. I did 
not go into the substance. She tried to make her case about the 
administration policy of openness and the Attorney General's 
policy of openness, and my response was I don't get involved in 
FOIA issues, you need to talk to the career people who handle 
those issues, and I just sent her on her way.
    Now, when it later came to an appeal that was the first 
time that I know of an appeal coming from Mr. Huff's office. So 
to some extent there is a uniqueness here. I don't remember 
ever getting a call about that before, but again I would simply 
pass on the information.
    Mr. Wilson. OK. Just to clarify one thing, you mentioned 
that, not precisely in these words, but the definition of 
friend is a nebulous term, and when we called you we didn't get 
a very good sense of any connection or past relationship 
between yourself and Ms. Poston. Is it true that when Hurricane 
Andrew came through Miami you invited Ms. Poston and her friend 
to come--and her sister to come live in your house?
    Mr. Hogan. Let me explain. Thank you very much for that 
opportunity. There's so many things that are just not clear.
    Her sister was a secretary in the State Attorney's Office, 
and she was in charge of all homicide victims and just did a 
wonderful job. She was a single mother who just really was a 
very, very impressive person. Although she was never my 
secretary, she was someone who I've always admired.
    I knew that she lived on Miami Beach. When Hurricane Andrew 
was approaching Miami, I called her and said, look, they're 
saying Miami Beach needs to be evacuated, Bobby. If you need a 
place to stay, I live inland. You're more than welcome to come 
to my house.
    And she said, well, my sister also lives on the shore. 
Could she come, too?
    And I did not say, no, she has to stay out in the storm. I 
said, yes, she can come, too.
    My contact with Ms. Poston had always been through her 
sister. Her sister's office desk was near my office. I would 
come out occasionally, they'd be going to lunch together. She 
would introduce me. I'd say, hi, Rebekah, how are you? That was 
really the sum total of my contact with Ms. Poston before this 
    So I did say to her sister that Ms. Poston could come to my 
house in the hurricane. The great irony was they didn't come, 
and my house was destroyed, and her house was fine.
    Mr. Wilson. When this FOIA matter was at the Department of 
Justice, it is our understanding that it had been resolved to 
the point where there was no possibility of appeal or at least 
the final appellate step had been taken within the Department 
of Justice. Was that your--do you recall whether you had an 
understanding of that at the time?
    Mr. Hogan. I'm sorry, could you repeat that, sir?
    Mr. Wilson. That when this FOIA request was in the 
Department of Justice, it had gone to Mr. Huff and he had 
rejected--there was appeal to him, and he had rejected the 
appeal, and the matter was effectively closed within the FOIA 
office. Is that your understanding of what had happened?
    Mr. Hogan. I knew that--I had a sense that--and, again, 
mainly from messages, and I'm not even sure of the 
information--that eventually he ruled against Ms. Poston's 
position. I did not know whether that was final or not, and 
that was one of the questions that I posed to Ms. McFadden, 
that she should look into whether or not there was a right of 
appeal for Mr. Huff.
    Mr. Wilson. If I could just put up exhibit 30 for a moment 
on the screen. This is a letter dated April 25, 1995. It's a 
letter to Ms. Poston from Mr. Huff, and there are four things 
that I wanted to pull out of this letter.
    In the first paragraph, it says that I note that you have 
not furnished a notarized authorization for Mr. Abe.
    Second point, in the second paragraph, I find the Supreme 
Court's hold to be controlling in this case.
    And then further in that paragraph, it says, lacking an 
individual's consent, proof of death, official acknowledgment 
of an investigation or an overriding public interest, even to 
acknowledge the existence of law enforcement records pertaining 
to an individual could reasonably be expected to constitute an 
unwarranted invasion of personal privacy.
    And then at the end of the first page and going on to the 
second page, it says, accordingly, this office is unable to 
assist you in this matter at this time, and I am closing these 
administrative appeals in this office.
    I mean, Mr. Huff, when we first read this it seems like a 
fairly unambiguous response to the FOIA request. In your 
opinion, was this decision a close call?
    [Exhibit 30 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.101
    [GRAPHIC] [TIFF OMITTED] T3168.102
    Mr. Huff. No.
    Mr. Wilson. If one were to argue that based on--well, let 
me ask this question this way. When the decision was made by 
Mr. Schmidt to provide Ms. Poston the information that she was 
requesting, did that constitute a change of policy at the 
Department of Justice?
    Mr. Huff. I don't think it was a change of policy. I think 
it was an exception in this case because of the circumstances 
in this case where Mr. Schmidt said he had looked at the 
policy, Attorney General Reno's disclosure policy.
    Mr. Wilson. What were the circumstances that made this case 
worthy of a change of direction?
    Mr. Huff. He mentioned during our conversation the risk of 
litigation and the time that litigation would take, but that 
    Mr. Wilson. Is that--Mr. Schmidt, is that a fair 
characterization, that it was a concern about litigation that 
led you to make the decision you made?
    Mr. Schmidt. Well, that was certainly a factor. Again, I 
wouldn't accept the characterization that it was a change in 
policy. I think Mr. Huff has it exactly right. There was an 
exception to the policy in a circumstance where we had 
discovered we didn't have any records. I mean, that is the key 
element here.
    So we were not disclosing any records. There was no 
argument that we were depriving anybody of their privacy 
rights, and we had the ability to do something totally harmless 
that thereby put to rest the matter and avoided the need for 
any further controversy about it. And that seemed to me then, 
and it still seems to me, the sensible thing to do in those 
    Mr. Burton. Let me just interrupt here. It is an exception 
to the accepted policy. You don't tell people when they ask 
about criminal records for the FOIA request, whether you have 
them or don't have them, you don't tell them anything.
    Mr. Schmidt. That's correct. You have the general policy of 
neither confirming nor denying.
    Mr. Burton. And so why the exception? I guess it's lost----
    Mr. Schmidt. Because we had found ourselves here in a 
situation where we were confronted with not just the potential 
but I think the likelihood of having to litigate over this 
matter. We had discovered that we, in fact, had no records. By 
disclosing the fact we had no records we could completely put 
an end to the matter and avoid spending anybody's effort or 
time to litigate.
    Mr. Burton. But let's say that you have 100 cases like this 
where people threaten with litigation.
    Mr. Schmidt. But we didn't. I would agree with you, if you 
had 100 or 1,000 cases like this, you might have to come to a 
different result. But we had one case we could completely put 
to rest by making a completely harmless and lawful disclosure 
of the fact that we had no records. So it seemed to me, for me, 
frankly, in terms of the overall interest of the Department, 
easy to conclude that it was a sensible conclusion not to 
unnecessarily litigate over something that didn't exist.
    Mr. Burton. How do you account for the fact--and maybe you 
just have to speculate on this. How do you account for the fact 
that the investigator--the private investigator was looking 
into this, Mr.--what was the gentleman's name? Mr. Manuel said 
that the records had been purged.
    Mr. Schmidt. All I know about that is what I learned from 
having listened to the hearing this morning. I know nothing 
about any of that. I don't know what it means. I don't know how 
it happened, if it happened, and--you know, I know nothing 
about any of that.
    Mr. Burton. I understand, but you can see why that raises a 
question with us.
    Mr. Schmidt. I can see how your definition of purged 
sounded more like mine than the one you were getting from that 
particular witness. But where that leaves you in terms of----
    Mr. Burton. But the point is this. We see these document s, 
and they raise all kinds of questions, and it says it's been 
purged, and then we find that you have made an exception to a 
rule that's been around or a policy that's been around for a 
long, long time because you say that you're concerned about 
possible litigation. And it just----
    Mr. Schmidt. It seems to me you're connecting apples to 
oranges in a way that doesn't, in fact, connect. My decision 
had nothing to do with whether anything had or hadn't been 
purged. Because none of us, I don't think Mr. Huff or anybody 
else, knew anything about any of that. All we were deciding was 
what to do in a situation where we had found out we didn't have 
any records and should we go on arguing or should we put the 
matter to rest by disclosing that fact.
    Mr. Burton. If you have a case like this in the future, 
would you do the same thing?
    Mr. Schmidt. I'm no longer there, but if I had this case 
under these circumstances in the future, yes, I would. It 
seemed to me right then. It still seems to me right.
    Mr. Wilson. Just one of the concerns that brings us to this 
matter and this panel here is to try and determine what the 
policy is to the extent it can be determined. And it sounds to 
me--and you can help me with this, Mr. Schmidt. It sounds to me 
like the clearest articulation of the status quo now is that if 
somebody wants criminal records about a third party and they 
threaten litigation and there aren't records, the Department of 
Justice will provide them an answer. Is that a fair 
articulation of the policy?
    Mr. Schmidt. No. I think that the policy remains that, as a 
general policy, we don't confirm or deny the existence of 
records, and I would say that if you want to state as a general 
policy that there are occasional exceptions in circumstances 
where the disclosure of the nonexistence of record is harmless 
and allows us to avoid what otherwise appears to be an imminent 
threat of significant litigation.
    Mr. Wilson. I understand what you say, but your answer is 
somewhat--it doesn't follow. If I go to the Department of 
Justice tomorrow and I work through the process and I get to 
the final decisionmaker and I'm rejected and I get a bigger--
just a bigger law firm than Steel Hector and Davis or any other 
sort of large, well-thought-of law firm and I say, look, you 
know, the Privacy Act doesn't apply, I want this record, then 
how could you distinguish my request from Ms. Poston's request?
    Mr. Schmidt. Well, I would distinguish it. I don't think 
this was a case where someone was coming in and simply 
litigating as part of a strategy to undermine the general 
Justice Department policy of neither confirming or denying the 
existence of records. This was litigation that was clearly 
substantial, although I think Mr. Huff, based on everything I 
know, is correct. We would have won it, but there were real 
issues here.
    Mr. Wilson. They wanted the record.
    Mr. Schmidt. No, no. But the extent to which the aliens 
under the circumstances had or hadn't a right to privacy and 
under what circumstances therefore someone asserting a FOIA 
request could override what at least Ms. Poston and her clients 
would say was a nonexistent right, and this was real 
litigation--I don't think that it is fair to suggest that we 
are somehow creating a scenario where everyone would be free to 
come in and by the mere threat of litigation undermine the 
long-standing policy, and if that began to happen, I would 
abandon the policy of making exceptions, but until it happened, 
I would see no reason to expend taxpayer money and the 
resources of the Justice Department to litigate unnecessarily 
over something that doesn't exist.
    Mr. Burton. Mr. Schmidt, if you didn't know all of the 
facts of this particular case, how would you know whether or 
not divulging that you had no information or some information 
in the file would affect the case?
    Mr. Schmidt. I have no idea that it would affect the case. 
All I know is because we had no records, there was one whose 
privacy rights were going to be violated. We didn't make the 
decision until we found out that we had no records. I didn't 
know whether it was going to be positive or negative for this 
case. In terms of the interest the FOIA law and the privacy law 
was protecting, it was harmless because, in fact, there were no 
records being disclosed, and therefore we were not depriving 
anybody of their privacy rights.
    Mr. Wilson. Just to change course for a minute, does 
anybody on this panel know why the Attorney General recused 
herself in this specific case?
    Mr. Hogan. I do. I have had a chance to look at records 
since we spoke.
    I spoke--although I normally do not take Ms. Poston's 
calls, occasionally I would pick up the phone when my secretary 
was busy, and occasionally I would speak to her. I had a 
conversation with her at one point, and she clearly was 
frustrated with the fact that her position was not gaining 
momentum within the Department, and she mentioned to me that 
she was handling the matter with a man by the name of John 
Edward Smith. I knew him to be a friend of the Attorney 
General. Again, I have worked with the Attorney General since 
1979 and knew her before that. He had been at Steel, Hector & 
Davis when the Attorney General was there, as opposed to Ms. 
Poston, who joined the firm after Ms. Reno left. He was 
someone--when she was nominated to be Attorney General, he took 
a leave of absence from the firm and actually came here to 
Washington to help her prepare for her confirmation hearings. 
He came up here and helped her prepare for those hearings.
    So when Ms. Poston mentioned John Edward Smith's name to 
me, I became concerned. I went to the Attorney General and 
said, there is this FOIA matter that Rebekah Poston had called 
me on, and I sent it off to the career people. And the Attorney 
General just said, I am recusing myself from the matter. Make 
sure that nothing else comes to me.
    Although Ms. Poston I would not characterize as a friend or 
social acquaintance of the Attorney General, Mr. Smith was, and 
that was my notice that he was more involved, and so I brought 
it to her attention.
    Mr. Wilson. This is information which has come to your 
    Mr. Hogan. Yes.
    Mr. Wilson. Ms. Poston, we know that you came up and had a 
meeting first with the Attorney General, and you told us that 
you did not discuss the Abe matter with the Attorney General, 
and you ended up meeting after that with Mr. Schmidt, and Mr. 
John Edward Smith came with you. And one of the questions we 
put to you was we have billing records from your firm, and Mr. 
Smith did not charge any time to this matter. There are lots of 
lawyers here, and presumably, unfortunately, there are paying 
clients, and they bill somebody. It is very, very rare for a 
lawyer not to record his or her time, particularly when there 
is a client who will pay the bill. Have you been able to 
determine why Mr. Smith did not record any of his time in this 
    Ms. Poston. I have no personal knowledge as to why he did 
not. Mr. Smith was--I don't know how--John was in a retired 
status with the firm. He was a government relations lawyer. I 
asked him if he would come with me because I have never met 
anybody this high up in the Department before, and he 
participated in the meeting with us and Mr. Bremer and Mr. 
Schmidt. But why he did not charge his time, I don't know.
    Mr. Wilson. There were associates in your law firm who 
worked on this matter, and they similarly did not bill any of 
their time. That is another peculiar--we have looked at the 
billing records, and your name is there, and theirs is not. It 
seems like Mr. Smith, you have explained him. Now, the 
associates, who certainly through benevolence don't write off 
their time in a matter like this, didn't bill their time. That 
is another thing that we are puzzled with. Is there an 
explanation for that?
    Ms. Poston. Mr. Wilson, do you have the subpoena in front 
of you? I want to be certain. I want to be certain what is 
called for. It called for all of the billing.
    Mr. Wilson. I do not have the subpoena in front of me. We 
can talk about that later.
    Ms. Poston. I want to be sure that we pulled it up 
properly. I know that Mr. Jimenez and Mr. Teen worked on the 
case, Mr. Jimenez briefly in a meeting and Mr. Teen to do some 
legal research. My counsel wanted to be sure that we checked it 
correctly. I would agree with you.
    Mr. Burton. We will now recognize minority counsel.
    Mr. Barnett. Thank you, Mr. Chairman. I am Phil Barnett, 
the minority counsel.
    I would like to begin by trying to clarify this policy on 
FOIA requests and disclosing that there are not records.
    Mr. Huff, was it against the law, was it illegal, to 
disclose that the Justice Department had no records relating to 
Mr. Abe?
    Mr. Huff. No.
    Mr. Barr. So if it was a policy, it was a discretionary 
policy that the Justice Department was following, in your view?
    Mr. Huff. It was a policy that was not required by law, but 
in order to provide privacy protection for those individuals 
who did have records, we would want to maintain a consistent--a 
fairly consistent policy so that we don't have the first three 
people say no records and the fourth one say--refuse to confirm 
or deny. Is that----
    Mr. Barnett. That is what is a little confusing about the 
record in this case, because that seems to be almost exactly 
what happened here. There wasn't in this case a consistent 
policy being applied.
    I would like to make this part of the record. This is a 
letter, January 30, 1995, so it is before your decision 
rejecting the appeal, and it is from the Executive Office of 
the U.S. Attorney, signed by Bonnie L. Gay, Attorney in charge 
of the FOIA unit of that part of the Department of Justice. 
This is really before any of what was being discussed in the 
majority's questioning.
    It says a search of records located in the U.S. Attorney's 
Office for the Western District of Washington has revealed no 
records. In other words, they filed something that was 
different from the policy; they just disclosed that they didn't 
have any records. There was nothing illegal about that.
    And the Bureau of Prisons, in a letter dated March 2, 1995, 
did essentially the same thing. They said: We don't have any 
records as regards your request; the microfilm records do not 
contain any information. We have not located any records 
concerning your request.
    So they also felt under no compunction or no reason not to 
say that they didn't have any records. They just took that 
    The INS, I think they said that they had records but they 
were hard to read.
    So if I was in Ms. Poston's position, I would be confused. 
Part of the Justice Department is saying we can't tell you 
whether we have or don't have records. Other parts of the 
Justice Department would say, well, we don't have records.
    So we have been talking about this policy as if it was a 
sacrosanct policy, but it doesn't appear that it was. It was 
kind of a sporadic, intermittent policy, at least as it applied 
in this case.
    Mr. Huff. In this case, the Bureau of Prisons is a little 
different than the rest of the components of the Department of 
Justice. The Bureau of Prisons always wants to be able to tell 
somebody. They don't want to have a secret prison. If somebody 
has been federally confined, they do want to make that public, 
as a general preposition there may be protected witnesses that 
may cause problems, but as a general rule they do want to give 
that information out.
    With regard to the Executive Office for the U.S. Attorneys 
and INS, I think those were incorrect determinations that were 
made initially, and it would just be speculating on my part as 
to why that would be.
    Mr. Barnett. You would agree if you were Ms. Poston making 
the request, it would be confusing to get different answers 
from the Department of Justice and you might want to seek 
clarification of that?
    Mr. Huff. Yes.
    Mr. Barnett. Thank you.
    Moving away from the policy to the question about whether 
the actions of the Department of Justice responding to the FOIA 
request involved any improper actions, particularly on the part 
of the Attorney General, I want to ask some questions about 
that. The chairman, testifying last year in front of the Rules 
Committee, said he had information to indicate that the 
Department of Justice had, ``changed a policy related to the 
release of information so that the lawyer who was the sister of 
a good friend of the Attorney General could help her client.'' 
He further stated this policy change was made personally by the 
Attorney General, according to one memo. So the claim was the 
Attorney General was personally involved in this decision. I 
want to go through and ask each of the witnesses about that.
    Ms. Poston, let me ask you first. Do you have any knowledge 
of the Attorney General having any involvement in this matter?
    Ms. Poston. No, sir, none.
    Mr. Barnett. Mr. Schmidt, did you have any knowledge of the 
Attorney General having any involvement?
    Mr. Schmidt. No, she had none.
    Mr. Barnett. When you made your decision, Mr. Schmidt, you 
made it based on the merits?
    Mr. Schmidt. Yes.
    Mr. Barnett. And the Attorney General did not directly or 
    Mr. Schmidt. I never had any contact before or after with 
the Attorney General about the matter.
    Mr. Barnett. Mr. Hogan, the same?
    Mr. Hogan. She had no role in this decision whatsoever, 
initially or at any stage.
    Mr. Burton. Yielding briefly, the letter that is referred 
to is dated July 19. You may have a copy of it. It is exhibit 
No. 39. This is a letter to Ms. Poston--from Ms. Poston to Mr. 
    In the second paragraph, ``Our personal meeting with Deputy 
Associate Attorney General John Schmidt resulted in a policy 
decision by the Attorney General to reverse the original 
position of the Department of Justice by authorizing release of 
the requested record or a statement as to whether it existed in 
the past. That is a major accomplishment and victory. The 
result, however, is quite perplexing.'' And then it goes on.
    Mr. Schmidt. It is obviously wrong. The Attorney General 
had no involvement in the matter. That is a lawyer's puffery, 
maybe, to try to claim somehow they had reached some higher 
level than they had in fact reached.
    Mr. Barnett. Do you agree with that, Ms. Poston?
    Ms. Poston. I believe it could have been more artfully 
written to say the ``office of,'' but I don't believe that it 
is puffery.
    Mr. Huff. I believe the date of the letter that you are 
referring to came shortly after our July 11, 1995 letter; is 
that correct?
    Mr. Burton. It is exhibit No. 39, dated July 19.
    Mr. Huff. My letter to Ms. Poston stated that Associate 
Attorney General Schmidt--this is exhibit 37. My letter, which 
is just a couple of days before that, says that, ``After 
considering your Freedom of Information Act request under 
Attorney General Reno's policy of undertaking discretionary 
disclosure of information . . ..'' There may have been some 
confusion in that letter suggesting that there was a new 
policy. This was under the Attorney General's policy of 2 years 
ago, as Mr. Schmidt mentioned.
    [Exhibit 37 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.116
    Mr. Burton. Well, if this is a misstatement by Ms. Poston 
in the letter, it is consistent with other misstatements that 
we have seen today. We have had Mr. Manuel and the other 
investigator, there were all kinds of communications, and we 
have had all kinds of miscommunications that follow the same 
    Mr. Barnett. There is an April 10, 1995 transmittal slip 
from the Office of Attorney General, saying that the Attorney 
General is recusing herself, and I would like to make that part 
of the record here.
    Just to wrap up this part of the questioning, Mr. Huff, you 
had no involvement directly with the Attorney General?
    Mr. Huff. I didn't.
    Mr. Barnett. Every witness who was involved had no 
involvement with the Attorney General. She had recused herself 
from this decision.
    Just the final thing to ask about is whether there was what 
the majority's memo called a remarkable series of contacts that 
Ms. Poston made, trying to get the information from the 
Department of Justice through the FOIA request. The major 
support for that seems to be on page 15 of the report, talking 
about a remarkable volume of contacts between Ms. Poston and 
Mr. Hogan, where it said there were 18 contacts that were 
there. That is based on, I guess, some records that the 
committee has obtained.
    Your testimony, I thought, Mr. Hogan, was that there were a 
lot of calls that you didn't respond to.
    Mr. Hogan. I spoke to Ms. Poston, my best recollection when 
Mr. Wilson called me 2 weeks ago, was two or three times. It 
could have been four, but two or three is my recollection. I 
have since had a chance to look at Ms. Poston. It talks about 
staff of the Attorney General. She spoke to my secretary an 
awful lot. And early on someone said, I am not sure if it was 
you, Mr. Chairman, she made all of these contacts, and it was 
with me. The person who she had contact with the most was my 
career secretary at the Department of Justice who took her 
messages, fielded her calls, fielded her frustrations on the 
fact that I had not returned the calls, but I spoke to her two 
or three times on this matter. And in each case, I simply 
referred her to the person who is the appropriate 
    Mr. Barnett. Ms. Poston, is that your recollection?
    Ms. Poston. That is my recollection. I expressed to the 
staff of the committee a few weeks ago when I was here, I 
seemed to spend more time talking to his secretaries and trying 
to get him to call me back than speaking to him. I expressed 
that to the committee staff.
    Mr. Barnett. So it was one or two contacts between you and 
Mr. Hogan on this. Let me ask you about that.
    You are a lawyer with a client who wants to get 
information, Ms. Poston. You have gotten no information from 
Mr. Huff, and other parts of the Department of Justice have 
actually answered your FOIA request and said they don't have 
records. Is that inappropriate or just being an advocate and 
trying to seek the information for your client?
    Ms. Poston. I think I was being an aggressive advocate 
because, as my time records reflect and as I told the staff, I 
tried to get a meeting with the head of the FBI, which I got. I 
tried to move on multiple fronts at the same time, and I don't 
consider it an excessive number. I think it is just good 
    Mr. Barnett. Is there anyone on the panel that would think 
that it is inappropriate, other than just being an advocate and 
zealous representation?
    Mr. Hogan. I don't, and I don't want my comments about not 
taking her calls to influence and make it sound like I did. She 
was being aggressive. She never asked me to do anything that 
was improper. She was clearly advocating for her client. I just 
wasn't going to help her.
    Mr. Barnett. Mr. Chairman, I think those are all of my 
    Mr. Burton. Thank you. The gentleman from Ohio.
    Mr. LaTourette. Thank you, Mr. Chairman.
    Mr. Hogan, if you would flip to an exhibit which we have 
marked as exhibit No. 32, it is a cover sheet from Ms. Poston, 
and then there is a letter attached to it dated May 12, 1995. 
If you can find that, I have some questions that I want to ask 
you about that.
    [Exhibit 32 follows:]

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    Mr. Hogan. I have it, sir.
    Mr. LaTourette. That apparently is a communication to you, 
indicating that she has received Mr. Huff's response to the 
FOIA appeal, saying she is disappointed--and it is interesting, 
in the same first paragraph she seems to be chastising the 
Department for not living up to the Clinton administration's 
commitment to opening public records to public scrutiny.
    In the second paragraph it says, would you assist the three 
of us in scheduling a meeting with Mr. Schmidt? We have not yet 
attempted to contact Mr. Schmidt.
    Do you recall receiving this letter?
    Mr. Hogan. Now that I see it, I recall receiving it; yes, 
    Mr. LaTourette. As I understood your testimony, you didn't 
do anything other than to give a heads-up to Mr. Schmidt's 
    Mr. Hogan. On the first page, the cover page, there is the 
check mark in the upper right-hand corner. When I would see 
something and give it to my secretary to file, that was our 
communication that it just got filed.
    Mr. LaTourette. On the second page, she invites you to 
``harken back to the beginning of this matter when you and I 
first spoke.'' That is one of the times that she got through?
    Mr. Hogan. Right. If I can explain that paragraph, I had 
the same question of her back then, when she said some agencies 
are telling me that they have no records, and other agencies 
are telling us that they won't tell us. I didn't understand why 
the Department would have different rules for different 
components. I expressed that just as an aside. She makes 
reference to it in the letter. I followed that disclosure, 
although I am not a FOIA expert, I think that is what that 
second paragraph on the second page refers to.
    Mr. LaTourette. Specifically, it says that you commented 
you couldn't understand why they couldn't just tell you whether 
they had a record. Do you remember telling her that?
    Mr. Hogan. Yeah, particularly because other agencies had. I 
had seen other FOIA requests where agencies said there are no 
records responsive to your request. I didn't understand why 
that was; but again, I am not a FOIA expert.
    Mr. LaTourette. Do you recall during this conversation when 
you talked, that she was talking specifically that the 
difficulty was in obtaining criminal arrest records?
    Mr. Hogan. No. When she made the call--many calls come to 
the Attorney General's office from the public, and my job is 
simply to send her the right way. I did not focus on what the 
issue was. I simply realized it was FOIA, I knew which number 
to give her, and that really was the extent of my focus.
    Mr. LaTourette. OK. Going to exhibit 47 and you can either 
trust me on this or not--you don't have to trust me, but those 
are Ms. Poston's billing records, and they show a number of 
contacts again with the staff at DOJ in the waning days of May, 
immediately before she sets up her appointment with Mr. 
Schmidt. And is it your recollection that you are not having 
contact with her at that time and if she is talking to 
somebody, it is your secretary?
    [Exhibit 47 follows:]

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    Mr. Hogan. Right. The actual wording, sir, ``phone call 
to,'' that doesn't mean that she spoke to me. Phone call to my 
office. Talked to staff; my secretary is staff. There are some 
that reflect that she spoke to me. In my brief review, it is 
consistent with my recollection of talking to her two or three 
    Mr. LaTourette. So again it is your recollection that you 
had nothing specifically to do with setting up the meeting with 
Mr. Schmidt?
    Mr. Hogan. I spoke to Nancy McFadden. I said there was this 
appeal issue coming. I wasn't sure whether they took appeals 
from it. I said that I had no role in it, and they should 
decide whatever they wanted to do. To that extent there was 
some role, but I certainly--I never called Ms. McFadden and 
said you have to see her, or said anything to Mr. Schmidt about 
it at all.
    Mr. LaTourette. That leads me to you, Mr. Schmidt. As busy 
as you were in your position, why would you get involved in a 
FOIA matter of this trivial nature?
    Mr. Schmidt. In general, if somebody called and complained 
about a decision that was made in one of the divisions that 
reported to me, I talked or met with them. It was a general 
    Mr. LaTourette. So this wasn't unusual?
    Mr. Schmidt. It was unusual because it was FOIA, and the 
FOIA part of the office, the whole information part sort of ran 
itself. It was not unusual to be getting a complaint about some 
decision within the Justice Department, and somebody wanted to 
meet with me about it.
    Mr. LaTourette. Specifically the meeting with Ms. Poston 
took place on June 15, and at that meeting was Ms. Poston, John 
Smith, Russ Bruemmer and yourself. Is that the full cast of 
characters present at the meeting?
    Mr. Schmidt. I don't remember the meeting, other than I 
remember I came out of it with the intention of looking into 
the matter.
    Mr. LaTourette. And during the course of that meeting, what 
was her specific complaint? I understand that she was 
complaining that Mr. Huff had denied her request for records. 
Did you have an understanding what records she was concerned 
    Mr. Schmidt. I knew it was criminal arrest records of some 
sort, but I don't remember the meeting. I remember it more 
having heard descriptions of it in the course of this 
testimony. I know what it was about. All I really remember was 
she was complaining about a decision that had been made denying 
a Freedom of Information request, and she and the other lawyers 
that were there were expecting to litigate over it unless we 
resolved it, and therefore I was going to talk to Dick Huff 
about it.
    Mr. LaTourette. Do you recall any conversation on her part 
that she was just trying to get to the bottom of something; she 
had information that this person had an arrest record and she 
was just trying to follow through?
    Mr. Schmidt. No, I don't. I don't think that we talked 
about the underlying substance of the case. I don't think that 
I knew anything about that.
    Mr. LaTourette. After that, I assume that you arranged a 
meeting with Mr. Huff, did you not?
    Mr. Schmidt. I probably called him or asked my secretary to 
set it up.
    Mr. LaTourette. Mr. Huff, do you recall such a meeting?
    Mr. Huff. I did attend such a meeting.
    Mr. LaTourette. Had you ever been in a one-to-one meeting 
with the Associate Attorney General prior to this?
    Mr. Huff. I don't believe so.
    Mr. LaTourette. Let me ask you this, Mr. Huff. During the 
course of this meeting, do you recall whether or not Mr. 
Schmidt asked you whether or not it was permissible for the 
Department to release arrest records for noncitizens?
    Mr. Huff. I don't remember whether he precisely asked me 
that question, but that topic came up, and the answer was that 
it was not prohibited by the Privacy Act.
    Mr. LaTourette. And did the Department have a policy 
against releasing such information? Was that discussed at the 
    Mr. Huff. Yes, he was generally aware of that, just by 
looking at the correspondence.
    Mr. LaTourette. Were you asking whether it was permissible 
for the Department to vary from its policy in any given case?
    Mr. Huff. I don't know if those words were used, but in the 
discussion of the meeting, the question was asked, yes.
    Mr. LaTourette. Did you give your opinion to Mr. Schmidt on 
that issue as to--did you express an opinion as to whether or 
not the Department should deviate from its policy in this 
particular case?
    Mr. Huff. I did.
    Mr. LaTourette. What was that opinion?
    Mr. Huff. I recommended that we not do it.
    Mr. LaTourette. How long have you been doing this work?
    Mr. Huff. Freedom of Information Act generally in the 
Department since 1976, and acting on administrative appeals 
since 1981.
    Mr. LaTourette. I don't know whether it was to counsel's 
question or the chairman's question, that Mr. Schmidt may have 
mentioned to you during the course of this meeting if there 
wasn't an exception made to the policy that there would be 
litigation by Ms. Poston on behalf of her client. Was that 
discussed during the course of this meeting?
    Mr. Huff. I believe so, but I can't say with certainty.
    Mr. LaTourette. Did you also express an opinion as to 
whether or not the Department would prevail in that litigation?
    Mr. Huff. If we discussed the issue, I would say that the 
Department had a very high likelihood of prevailing.
    Mr. LaTourette. Following this particular meeting, were you 
asked to look to see if there were any records on the 
individual that was under discussion?
    Mr. Huff. I think it was during the meeting I was asked, 
and I did.
    Mr. LaTourette. After the meeting you did the search?
    Mr. Huff. I communicated with the senior officials, the 
Executive Office for the U.S. Attorney and the senior official 
for the FBI in charge of FOIA.
    Mr. LaTourette. Specifically--and I have seen your 
communique--the specific things that you asked for, you asked 
for a specific arrest record occurring in Seattle, WA in 1963. 
Is that what you searched for?
    Mr. Huff. That is what the components were asked to search 
for. I didn't do the search.
    Mr. LaTourette. But you asked somebody to make that search?
    Mr. Huff. Yes.
    Mr. LaTourette. I didn't read Ms. Poston's original FOIA 
request. Was it a request on that individual or did it request 
an arrest record occurring on dates in 1963 in Seattle, WA?
    Mr. Huff. I'm sorry, I am confused as to the question.
    Mr. LaTourette. There are two ways to search a record. You 
can put in name, birth date, and Social Security number. I am 
wondering if that is the request that you made at your 
direction, or did you specifically request for an arrest record 
from Seattle, WA in 1963; do you recall?
    Mr. Huff. If you give me a second, I think I have a copy of 
the fax or the memo that I sent to each one of them.
    Mr. LaTourette. OK.
    Mr. Huff. I believe that is on page 36.
    Mr. Burton. Exhibit 11.
    Mr. LaTourette. Exhibit 11?
    Mr. Burton. That is the request.
    Mr. Huff. My referral to the FBI on what I asked them to 
look for was on exhibit 36. Her request may very well be 
earlier. But this is what I asked the FBI to look at and I had 
an identical letter/memo that I sent to the Executive Office 
for U.S. Attorney. I didn't ask them to look in the Seattle 
field office. I asked them to look in the Western District of 
Washington. That was exactly the search, and that is what I 
faxed them.
    [Exhibit 36 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.115
    Mr. Burton. Exhibit 36 is a request from Mr. Huff.
    Mr. Huff. The day after my meeting with Mr. Schmidt.
    Mr. Burton. It is June 26 from Mr. Huff to Kevin O'Brien. 
Do you see it, Mr. LaTourette?
    Mr. LaTourette. Yes, I do.
    Mr. Burton. OK.
    Mr. LaTourette. I am just wondering whether or not the 
information to look for a specific arrest occurring in 1963 in 
Seattle, whether that information was brought to the Department 
by Ms. Poston's communication and request, or you got that from 
some other means?
    Mr. Huff. I believe that was in her administrative appeal. 
I would have to search for that, but I think that specific 
information was in the administrative appeal.
    Mr. LaTourette. Whoever you asked to conduct the search 
came back and told you that there were no such arrest records 
in the NCIC or whatever data bases were being searched; is that 
    Mr. Huff. Yes. They said that for the data bases that they 
searched for the different parts, for the FBI and for the 
Western District of Washington.
    Mr. LaTourette. And the policy is similar to the one where 
the Department doesn't talk about ongoing investigations. You 
neither confirm nor deny, and the reason is to protect a 
person's privacy. But the problem is when you read the 
newspaper and someone says that John Brown is up to no good and 
he is being looked at by DOJ and the FBI, if the FBI or the DOJ 
said no, we are not looking at him as opposed to issuing--it 
always leads to the conclusion, if you don't deny, there is 
something going on and this person is into some kind of 
mischief; is that fair? That's kind of convoluted.
    Mr. Huff. I'm sure that is fair. Is that the question?
    Mr. LaTourette. I get what I am talking about.
    Anyway, when you found out that there were no records 
related to this individual in the criminal system data base, 
did you communicate that to Mr. Schmidt?
    Mr. Huff. I believe I did. I have notes in my file that I 
tried to call his office, but his secretary said he was not 
available and would be available the following week. A week 
after that, I sent this letter. I believe I must have contacted 
    Mr. LaTourette. Did you have a second meeting with Mr. 
Schmidt on this matter or was it through written 
    Mr. Huff. We may have had a phone conversation, but I don't 
believe we had a second meeting.
    Mr. LaTourette. Thereafter, Mr. Schmidt made a decision to 
make an exception to the Department's policy for reasons that 
he has discussed with the committee; is that right?
    Mr. Huff. Yes.
    Mr. LaTourette. How did you become aware of that if there 
was no second meeting?
    Mr. Huff. I think that was the phone conversation. When I 
called him back and tried to get back in touch with him, and I 
don't have notes in my file saying I did speak with him, but 
then I wouldn't have sent this letter had I not spoken with 
    Mr. Schmidt. I think we talked on the phone. I think I had 
effectively made the decision in the first conversation, if we 
find out we have nothing, we ought to go ahead with that. But I 
think you did call me back and tell me you had nothing.
    Mr. Huff. It is my impression, I think when I left the 
meeting, if we had no records, we were going to so state that; 
but I don't know that was absolutely firm. But I think that is 
the impression that I left the initial meeting with.
    Mr. LaTourette. Did you express an opinion during the 
meeting or phone call that was a decision that you did not 
agree with based upon your position in the Department?
    Mr. Huff. Yes, I recommended against it in our first 
    Mr. LaTourette. How about during the phone call, do you 
have any separate recollection?
    Mr. Huff. That is the phone call I don't recall.
    Mr. LaTourette. What is the typical involvement, again 
based upon your position at the DOJ relative to FOIA requests, 
what is the typical involvement that political appointees at 
the DOJ have in your experience with the FOIA requests that are 
made upon the Department--Mr. Schmidt being a political 
    Mr. Huff. Other than when records are being sought in their 
particular office--such as Mr. Hogan, I believe, was the 
contact for records in the Attorney General's Office--where 
they would search for them and if they found them, they would 
discuss what they were going to hold or disclose, that was a 
separate, isolated part of our office that worked on those. 
Other than things such as that, or conceivably the associate's 
office might have somebody that would also deal on an issue 
like that. Other than that, the answer is it was very unusual.
    Mr. LaTourette. Can you recall any other occasions during 
your tenure at the Department of Justice when your decision 
relative to FOIA requests have been overruled by political 
appointees of the Department?
    Mr. Huff. There have been--I can recall one where it was--I 
had not written a determination yet, and there was a 
disagreement as to just the opposite. Instead of what I thought 
ought to be withheld, I thought something ought to be 
disclosed; and leadership said no on something like that a 
number of years ago.
    There was another one--which I think I mentioned--with 
staff dealing with Terry Anderson and his request for 
information about hostages. And I think the DEA refused to--I 
mean, kidnappers of Terry Anderson in Lebanon--and he asked for 
a number of different items, including information on several 
individuals that were his captors, and I confirmed DEA's 
refusal to confirm or deny.
    Subsequently Mr. Anderson bought a lawsuit. There was press 
furor about whether or not it was appropriate for us to assert 
privacy on behalf of terrorists. Again they were foreign 
nationals and so the Privacy Act didn't apply to them. And in 
that particular case, I discussed that with political personnel 
in the Department, senior personnel, and we discussed whether 
or not that was appropriate. And the determination was made 
that we should go ahead and argue that case without using the 
privacy exemptions, and with what other exemptions would apply, 
perhaps the national security and other exemptions would be 
used in that litigation. So I was a part of that.
    That was an example where my opinion or my views were 
overruled because we didn't support the position that I had 
taken initially in litigation.
    Mr. LaTourette. I think in the notes that I have in your 
meeting with the committee staff, the one example that you 
brought up dealt with Justice O'Connor and her confirmation 
process; and the other was the famous hostage, Terry Anderson, 
which you just discussed.
    Are you able, based upon your experience and knowledge of 
FOIA and how the policy has been implemented at the Department 
of Justice, are you able to distinguish the two overrulings or 
exceptions made in those two instances dealing with a Justice 
of the Supreme Court and a fellow held hostage over in Lebanon 
from the request that Ms. Poston has made in this request? Are 
they the same? Do exigencies exist in this case as existed in 
the others?
    Mr. Huff. I don't know if there are any particular unique 
circumstances about the request for Justice O'Connor concerning 
her papers that dealt with the Department's consideration of 
whether to recommend her to the President for the Supreme 
Court. The underlying papers.
    Mr. LaTourette. And again, regardless of the threat of 
whatever litigation Ms. Poston had in mind, is there any doubt 
in your mind, based upon your experience at DOJ, that the 
Department would have prevailed?
    Mr. Huff. Yes, I think the odds were very good we would 
    Mr. LaTourette. Thank you, Mr. Chairman.
    Mr. Burton. I think we are just about to conclude. Can you 
think of any other questions?
    It just seems interesting to me that there were three phone 
calls by Ms. Poston to Mr. Hogan--I guess two or three on May 
30, May 31; and on June 1st, there was a conference call with I 
guess Mr. Schmidt, and that is the date that they set up the 
    Can you recall any other time when you met with somebody 
that you didn't know, like Ms. Poston--you didn't know her very 
    Mr. Schmidt. I had no conference call that I remember with 
Mr. Hogan and Ms. Poston.
    Mr. Hogan. Just so I can clarify something. Ms. Poston's 
bills say conference call. There never was more than two people 
on the phone that I knew of. I assume what that means, we had a 
conference during a phone call. But in normal parlance we think 
of a conference call as a multiparty communication.
    Mr. Burton. It says conference call with Associate Attorney 
    Mr. Hogan. I noticed that same thing with mine. When I 
spoke to her, as far as I knew she and I were the only two on 
the line, but the bill seems to reflect a conference call. I 
think that means we had a conference on the call.
    Mr. Schmidt. I am confident I never had a conference call 
with John Hogan. It never happened.
    Mr. Burton. Did you know Ms. Poston before you met with 
    Mr. Schmidt. No.
    Mr. Burton. Was it kind of a common practice for you to 
just meet with people you didn't know about issues like this?
    Mr. Schmidt. When people called and complained about 
decisions made within the part of the Justice Department that 
reported to me, it was my general practice to talk with them 
and meet with them. I always felt it was a way of having some 
source of information about what was going on that wasn't 
channeled through the bureaucrats, if I can put it that way. So 
I did have a general policy of doing that.
    Mr. Burton. Did you ever have occasion to, in effect, 
overrule Mr. Huff's recommendations that you don't do this sort 
of thing?
    Mr. Schmidt. I don't remember any other case where I 
overruled Mr. Huff. I remember talking to him about a couple of 
cases which involved timing issues. The most frequent complaint 
I heard in FOIA cases was, I can't get any response. And I do 
recall cases where people would call me and I would make some 
inquiry. But this is the only case that ever came to me where 
anybody complained about a specific decision that had been made 
to deny a FOIA request.
    Mr. Burton. So you don't recall talking to Mr. Huff about 
any case like this?
    Mr. Schmidt. Mr. Huff reported to me. He came to my regular 
staff meetings and we talked about the affairs of the Office of 
Information and Inquiry, but I don't remember any specific case 
where anybody came and complained to me and I ended up 
reversing a decision or overturning a decision that he had 
    Mr. Burton. Do you recall, Mr. Huff, ever having any kind 
of conversation about any other FOIA request like this with Mr. 
    Mr. Huff. Not a specific request. The sort of statement, 
yes, we might talk about timing issues of the Department 
    Mr. Burton. Did you ever make any other recommendation of 
this type that this was a practice that should not be changed 
or something like this should be done? Is this the only time 
that you made that recommendation?
    Mr. Huff. This is the only time where we discussed a matter 
of this sort.
    Mr. Burton. Where you made that kind of recommendation.
    Anything else? Mr. LaTourette.
    Mr. LaTourette. Mr. Schmidt, at the time you made the 
decision to make the exception to Department policy, were you 
aware of the Attorney General's recusal, the document that the 
minority counsel put in; were you aware that she had recused 
herself from the case?
    Mr. Schmidt. I don't know if it would have come up because 
she wasn't in the loop, and I wasn't aware of any prior 
involvement she had had in the matter.
    Mr. LaTourette. As a result of today's hearing, you are 
aware that she recused herself, and why. Were you aware of that 
before today's hearing?
    Mr. Schmidt. I don't have any recollection of it at the 
time. I knew that Ms. Poston was from Steel, Hector and I knew 
that the Attorney General had briefly been at that firm, but I 
didn't have any other knowledge then about anything else and--I 
don't think that I knew anything about the Attorney General 
having any prior contact with this matter.
    Mr. Burton. Let me interject that the memo that we have 
before us was from the Attorney General. This is from the 
Attorney General and it says--it is exhibit 31. It says--and 
this goes to--for the staff of the Attorney General. It was 
cc'd to the Associate Attorney General, carbon copy to you. So 
it went----
    [Exhibit 31 follows:]

    [GRAPHIC] [TIFF OMITTED] T3168.103
    Mr. Schmidt. If she sent me a memo like that, it would have 
come around. We got a lot of memos like that from the 
Department of Justice people that reported to me. I am recusing 
myself from this or recusing myself from that.
    Mr. Burton. This was sent to you directly from the Attorney 
General, and she initialed it and put her name on it.
    Mr. Schmidt. She sent a general memo around the office.
    Mr. Burton. She sent a specific carbon copy to you.
    Mr. Schmidt. I don't remember it.
    Mr. LaTourette. You were telling me--John Smith, his 
participation in a confirmation hearing; you didn't know that 
he was involved?
    Mr. Schmidt. I did not know that. I knew he was from Steel, 
Hector, but I did not know that.
    Mr. LaTourette. Thank you.
    Mr. Burton. I think that about covers the waterfront. We 
appreciate very much your being here.
    Mr. Palmer. Mr. Chairman, may we have a copy of the report 
that the committee has issued?
    Mr. Burton. We will be very happy to give you a copy of the 
report and any other information that you would like. We stand 
    [Whereupon, at 4:17 p.m., the committee was adjourned.]
    [Additional information submitted for the hearing record