[House Report 104-598]
[From the U.S. Government Publishing Office]
House Calendar No. 231
104th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 104-598
_______________________________________________________________________
PROCEEDINGS AGAINST JOHN M. QUINN, DAVID WATKINS, AND MATTHEW MOORE
(PURSUANT TO TITLE 2, UNITED STATES CODE, SECTIONS 192 AND 194)
_______
May 29, 1996.--Referred to the House Calendar and ordered to be printed
_______________________________________________________________________
Mr. Clinger, from the Committee on Government Reform and Oversight,
submitted the following
R E P O R T
of the
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
CITING JOHN M. QUINN, DAVID WATKINS, AND MATTHEW MOORE
together with
ADDITIONAL and DISSENTING VIEWS
H. Res.
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the Committee on
Government Reform and Oversight, detailing the refusal of John
M. Quinn to produce papers to the Committee on Government
Reform and Oversight, to the United States Attorney for the
District of Columbia, for him to be proceeded against in the
manner and form provided by law; and be it further
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the Committee on
Government Reform and Oversight, detailing the refusal of David
Watkins to produce papers to the Committee on Government Reform
and Oversight, to the United States Attorney for the District
of Columbia, for him to be proceeded against in the manner and
form provided by law; and be it further
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the Committee on
Government Reform and Oversight, detailing the refusal of
Matthew Moore to produce papers to the Committee on Government
Reform and Oversight, to the United States Attorney for the
District of Columbia, for him to be proceeded against in the
manner and form provided by law.
executive summary
A. Introduction
Weeks after the firings of seven longtime White House
Travel Office employees, President William J. Clinton staved
off a congressional inquiry into this growing controversy by
committing to House Judiciary Committee Chairman Jack Brooks on
July 13, 1993:
. . . you can be assured that the Attorney General
will have the Administration's full cooperation in
investigating those matters which the Department wishes
to review.
No mention then of executive privilege from the President on
withholding documents from investigators. The President
repeated his promise of cooperation in January 1996 when he
stated:
We've told everybody we're in the cooperation
business . . . That's what we want to do. We want to
get this over with.
In just over a year after the President's initial
assurances of cooperation, the President's own appointee as
chief of the Justice Department's Office of Public Integrity,
Lee Radek, complained in a September 8, 1994 memo to Acting
Criminal Division chief Jack Keeney:
At this point we are not confident that the White
House has produced to us all documents in its
possession relating to the Thomason allegations . . .
the White House's incomplete production greatly
concerns us because the integrity of our review is
entirely dependent upon securing all relevant
documents.
At this juncture, the Committee is also gravely concerned
by the White House's ``incomplete production.'' 1 Like the
Justice Department's Public Integrity Section before us, the
``integrity of our review'' is at stake as the White House
continues to withhold relevant documents. The credibility gap
of the White House has also grown as we have progressed in this
investigation.
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\1\ The Committee wishes to acknowledge the efforts of those who
have helped prepare this report: Kevin Sabo, General Counsel, Barbara
Olson, Chief Investigative Counsel, Barbara Comstock, Investigative
Counsel, and David Jones, Joe Loughran, Kristi Remington, and Laurie
Taylor of the investigative staff. The Committee also appreciates the
valuable assistance provided by Morton Rosenberg, Esq. of the
Congressional Research Service.
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It is never appropriate for the subject of an inquiry to
determine what documents shall or shall not be turned over or
identified in a privilege log. Particularly in this matter
where the individuals in the Counsel's office who are
withholding documents may also be the authors of some of the
documents withheld, the Committee has a compelling interest to
seek a complete compliance with its bipartisan subpoenas. Those
who are the subject of an investigation are hardly objective in
determining what is relevant to a congressional oversight
investigation. Yet past Travelgate investigations have been
thwarted by a White House Counsel's office intent on doing just
that while delaying and denying the production of documents. As
these facts are brought to light, White House operatives change
the subject, attacking the Committee because it continues to
shine a light on White House actions long after other
investigators gave up trying.
The Administration's resistance to oversight in this matter
began almost immediately after the firings and demonstrates the
culture of secrecy that has become its hallmark. In notes dated
May 27, 1993, White House Management Review author Todd Stern
wrote,
Problem is that if we do any kind of report and fail
to address those questions, the press jumps on you
wanting to know answers; while if you give answers that
aren't fully honest (e.g., nothing re: HRC), you risk
hugely compounding the problem by getting caught in
half-truths. You run the risk of turning this into a
cover-up. (emphasis added)
This White House embarked on an unmistakable course which
frustrated, delayed, and derailed investigators from the White
House itself, the GAO, the Federal Bureau of Investigation, and
the administration's own Justice Department Office of
Professional Responsibility and Public Integrity Sections. That
is what has brought the Committee to this unfortunate impasse.
This White House simply refuses to provide this Committee
with the subpoenaed documents that will help us bring this
Travel Office investigation to a close, something that I have
sought to do for nearly three years. Documents inexplicably
have been misplaced in ``stacks,'' or ``book rooms'' or storage
boxes, where they languished for months if not years, despite
subpoenas and document requests from numerous official
investigative bodies.
If President Clinton responds to investigations of
supposedly minor internal problems this way, how does he handle
far more serious national and international matters? This
administration's culture of secrecy could have disastrous
consequences where critical national policy matters involving
foreign affairs are concerned. Let there be no
misunderstanding. What we have before the Committee should not
be the issue of a constitutional confrontation. This Committee
seeks no records pertaining to the national security. This is
not Bosnia. This is not Iran. International relations are not
at stake.
When the White House, as in the case here, fails to comply
fully with investigations mandated by Congress or senior
Justice Department officials, the oversight role critical to
our system of checks and balances is compromised and it is
incumbent upon this Committee to assert and to uphold its
jurisdiction and congressional prerogatives.
In the course of the Committee's investigation, such
documents as the Watkins ``soul cleansing'' memo and a Watkins
letter to the First Lady ``appeared'' for the first time even
though both documents were created, requested and subpoenaed
years ago. Testimony by a former White House attorney and a
present White House official demonstrated that while this
document was discussed between and among at least three White
House officials, it never was produced in any prior document
productions. A Travel Office notebook kept by the late Deputy
Counsel Vince Foster was withheld from relevant investigators,
including the Independent Counsel, for two years. The
Committee's attempt to question one witness about a belatedly
discovered document was met with an assertion of executive
privilege when Committee Counsel questioned the witness about
conversations she had with the White House Counsel's office.
2
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\2\ See Deposition of Carolyn Huber.
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These documents, and many others, never were provided to
previous investigations. They were provided to this Committee
only months after the Committee began seeking responsive
documents and long after the White House Counsel assured the
Committee that it had received almost all substantive
documents. This raised concerns with the Committee that the
same White House stonewalling that had compromised previous
investigations once again was occurring with the Committee's
investigation. The Committee issued bipartisan subpoenas in
January 1996, after it determined that it was essential to
obtain all documents, including those regarding the White House
responses to previous investigations as well as the Committee's
own investigation, due to the consistent pattern of
stonewalling over the past three years. In addition, throughout
the course of the Committee's investigation, White House
Counsel was in regular contact with counsel for former and
present White House employees and in one case even contacted a
witness who had agreed to a Committee interview. The interview
was canceled following the White House contact.
White House Counsel John M. Quinn, the primary subject of
this Committee's contempt proceeding, informed the Chairman in
a meeting on May 8, 1996, that he had not even begun gathering
the documents at issue. The gathering of these documents, and
the invocation of the procedures outlined in the Reagan
memorandum, should have begun long before the May 9, 1996,
business meeting at which the Committee voted Mr. Quinn in
contempt of Congress. In fact, Mr. Quinn's statements are at
odds with a February 1, 1996, memo that Mr. Quinn himself sent
to all staff of the White House regarding the subpoena from
this Committee. In the memo, Mr. Quinn detailed all of the
items on the Committee's subpoena and directed staff to produce
all ``responsive records that fall within the above
categories'' by February 7, 1996, to Elena Kagan, an Associate
Counsel in Mr. Quinn's office. Mr. Quinn also had sent a memo
on December 19, 1995 to gather documents.
In an August 23, 1995, letter to the Committee, the White
House said that document production timetables suggested by the
Committee--documents produced within 15 days and privilege logs
within five days--were ``reasonable goals.'' The Committee sent
its first document request on June 14, 1995, after a long
correspondence with the White House concerning the Travel
Office matter. Our second request was sent on September 18,
1995. Bipartisan subpoenas were issued on January 11, 1996. We
have gone far beyond what the White House itself acknowledges
was ``reasonable.'' Yet, now, the White House, in my view, is
trying to further delay producing these documents or avoid
doing so altogether.
The compliance date for the subpoenas was more than three
months ago. The time for the White House Counsel to seek to
avoid contempt has come and gone. The White House neither has
complied with this Committee's subpoenas nor has it offered a
legally rational basis for its refusal to comply.
It is troubling that the President of the United States
persists in his efforts to cover-up a scandal having no
connection with any national security or vital domestic policy
issue. In the final analysis, the Travel Office matter reflects
the character of the President and his presidency.
B. Background
Since the controversial firings of the longtime White House
Travel Office employees, the history of the investigations into
what has become known as ``Travelgate'' has been one of a White
House intent on keeping investigators at bay and relevant
documents under wraps. While this Committee has succeeded in
obtaining far more information and records than has any
previous investigation into the Travel Office firings, the
record is still incomplete because of the insistence of the
President to withhold documents from the American public by
taking the extraordinary step of invoking an undefined, vague,
and ultimately ineffective protective assertion of executive
privilege. 3
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\3\ As will be discussed in this report, the President has not
submitted a formal assertion of executive privilege to this Committee.
Instead, on the morning of the Committee's vote, the Counsel to the
President informed the Committee that he had been instructed by the
President to assert executive privilege as a protective measure until
such time as his advisors could collect and review the documents in
dispute. The Committee has obtained a February 1, 1996, memo addressed
to all White House staff from White House Counsel Jack Quinn requesting
receipt of all subpoenaed documents by February 7, 1996. Mr. Quinn's
current statement that he needs more time to gather the requested
documents appears to be at odds with the documentary record.
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This Committee has a compelling need for the disputed
documents to obtain a complete record of events related to the
Travel Office matter in order to resolve the issues as to how
and why previous investigations did not meet with White House
cooperation. The subpoenaed records are necessary for the
Committee to resolve by direct factual evidence, fundamental
factual questions relating to the actions, direction,
knowledge, recommendations, or approval of actions by
individuals in the White House, in responding to the
allegations about the Travel Office employees as well as the
subsequent investigations into the White House Travel Office
matter. This report will outline in great detail a pattern of
activity by this Administration to deny and delay access to
relevant records to several investigative bodies, including
this Committee.
It has been White House policy since the Kennedy
Administration not to invoke executive privilege when there are
allegations of criminal wrongdoing at issue. Certainly that is
the case here. Already there has been a criminal referral
concerning statements made by David Watkins, a former White
House senior official. Further, the Independent Counsel has had
his jurisdiction expanded to encompass the Travelgate matter.
In light of that expansion, the actions of the White House are
particularly troubling.
President Reagan, for example, waived all claims of
executive privilege during the Iran-Contra investigation.
Attorney General William French Smith, who generally proposed a
very broad theory of executive privilege during his tenure,
even admitted that he would not try ``to shield documents [from
Congress] which contain evidence of criminal or unethical
conduct by agency officials from proper review.'' 4
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\4\ Letter of November 30, 1982, to Congressman John Dingell,
reprinted in H. Rep. 968, 97th Cong., 2d Sess. 41 (1982).
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More than a century ago, even President Andrew Jackson, ``a
jealous defender of executive prerogatives, told Congress that
if it could point to any case where there is the slightest
reason to suspect corruption or abuse of trust, no obstacle
which I can remove shall be interposed to prevent the fullest
scrutiny by all legal means.'' 5
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\5\ Fisher, Louis, Constitutional Conflicts between Congress and
the President, p. 205.
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The lengthy record established by the Committee, and
detailed in this report, demonstrates concerted efforts over a
sustained period of time to delay and deny records to
investigative bodies. In refusing to produce the outstanding
records to this Committee, the President, substituting his
judgment as to what materials are necessary for the inquiry,
has placed the full executive powers of the Presidency against
the lawful subpoenas of the U.S. House of Representatives.
On June 1, 1993, Congressman William F. Clinger, Jr., then
the ranking minority member on the House Committee on
Government Operations, called on the Committee to investigate
the chain of events which resulted in the termination of seven
hard-working White House Travel Office workers.6 These
Travel Office employees, many of whom had worked for numerous
Presidents over the course of three decades, summarily were
fired and driven from the White House. One employee learned of
his termination by watching CNN in a hotel while he was on
government travel. Another worker learned that he was fired
from his son, who had watched a network news program.
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\6\ After nearly three years of seeking cooperation in this
investigation, Chairman Clinger has afforded White House Counsel John
M. Quinn, David Watkins, and Matthew Moore every opportunity to produce
the records which were subpoenaed in January 1996. At the Chairman's
request, the Congressional Research Services' American Law Division has
submitted an analysis to the Committee reviewing the legal steps
required to hold an individual in contempt of Congress under 2 U.S.C.
Sections 192 and 194. This analysis is provided in Appendix 1.
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Not only did the White House fire these workers, it claimed
to the national media that the Federal Bureau of Investigation
(FBI) was conducting a criminal review. Shortly thereafter, the
airline company providing charter service to the Travel Office
was served a summons by the Internal Revenue Service (IRS) and
subjected to a two-and-one-half-year audit. Coincidentally, a
senior White House aide had warned the FBI just days earlier
that if the FBI did not assist the White House in this matter,
the IRS would be called.
Over the next several weeks, Congressman Clinger's call for
an investigation was repeated throughout the U.S. Senate and
House.
Unfortunately, the ``full cooperation'' promised by the
President never was forthcoming. Numerous records of what
occurred at the Travel Office never were provided appropriately
to the Justice Department or any other investigative
organization. Five separate investigations were conducted into
one aspect or another of the Travel Office firings. The only
consistency between each of these five previous investigations
was that the White House was successful in its attempts to
delay and deny production of many relevant documents. The
Justice Department's Public Integrity Section complained in an
internal memorandum that material records were withheld during
the course of its review. The General Accounting Office (GAO),
conducting an investigation requested by a statute signed by
President Bill Clinton, was denied vital records after months
and months of requests. Recently, the GAO referred a former
senior White House aide to the Justice Department for
prosecution for providing false information.
By January, 1995, Congressman Clinger was the chairman of
the new House Committee on Government Reform and Oversight. He
announced that a thorough investigation into the growing Travel
Office scandal would be forthcoming. Beginning on June 14,
1995, the Committee submitted document requests to the White
House. The White House took months to respond to a subsequent
September 18, 1995 document request, acknowledged in
correspondence in August 1995 that a two week response time to
document requests was a reasonable goal. The Committee was
assured in October 1995 that almost all of the substantive
records had been provided.
Three hearings were held and bipartisan subpoenas were
issued when documents repeatedly were delayed and denied to the
Committee. Specifically, on January 11, 1996, Chairman Clinger
authorized and issued subpoenas under authority granted to him
by House Rule XI, clause 2(m) and Committee Rule 18(d). These
subpoenas were issued, inter alia, to the Custodian of Records
at the White House,7 and David Watkins,8 and Matthew
Moore,9 personally. Negotiations over access to records
began. The White House continued to ``locate'' previously
requested documents and to produce groupings of documents
without articulating any credible reason why they had been
withheld until that point.
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\7\ The subpoena issued to the Custodian of Records at the White
House was received by Jane Sherburne, Special Counsel. The documents in
question are in the custody and control of John M. Quinn, White House
Counsel. A copy of the subpoena issued to the Custodian of Records is
provided in Appendix 2.
\8\ A copy of the subpoena issued to David Watkins is provided in
Appendix 3.
\9\ A copy of the subpoena issued to Matthew Moore is provided in
Appendix 4.
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Finally, on March 15, 1996, the White House made a small
production of documents pursuant to the Committee's subpoena
that included yet another previously unproduced Watkins
handwritten letter to Mrs. Clinton dated May 3, 1994. An
explanation for the White House's failure to produce this
document for nearly two years during the course of numerous
other document requests and subpoenas finally was proffered by
the White House on April 5, 1996. Assistant to the President
and White House Counsel John M. Quinn responded only that it
was located in a stack of unsorted, miscellaneous papers and
memorabilia in the Office of Personal Correspondence after
having been forwarded to Presidential Assistant Carolyn Huber
by the First Lady.10
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\10\ During a Committee deposition with Carolyn Huber on April 23,
1996, the Committee was notified that the White House had instructed
Ms. Huber to assert executive privilege over any communications with
the White House Counsel's office.
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On May 2, 1996, Chairman Clinger formally notified Counsel
to the President John M. Quinn, Attorney General Janet Reno,
and former White House aides David Watkins and Matthew Moore
that they were not in compliance with subpoenas issued by the
Committee in early 1996 and were subject to be held in contempt
of Congress. The Attorney General resolved issues of
outstanding records with the Committee prior to the May 9, 1996
compliance date. In a letter to Mr. Quinn, Chairman Clinger
stated:
I have reviewed all of our numerous communications
and correspondence regarding compliance with our
subpoenas and am frankly amazed that we are still
seeking full production more than three months after
the stated due date * * * I am advised that the White
House has also intervened with individuals who were
subpoenaed by this Committee by requesting that such
individuals send their documents to the White House
rather than directly to the Committee.
The White House's continued foot dragging and
obfuscation as the Committee attempts to bring closure
to this investigation must come to an end. Accordingly,
I am calling in all documents responsive to our
subpoenas of January 11, 1996, to be delivered by close
of business on May 8, 1996 * * * I have scheduled a
meeting of the Committee on Government Reform and
Oversight for the morning of May 9, 1996 to resolve
these and other outstanding document issues. At that
time, I will request a Committee vote to compel the
production of outstanding records under penalty of
contempt.11
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\11\ A copy of the Committee's business meeting notice and draft
copy of the House Resolution citing the respective individuals for
contempt were included with the letter.
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Unfortunately, the White House response was typical of the
dealings the Committee has experienced with the Clinton
Administration since 1993. In a May 2, 1996, letter addressed
to Chairman Clinger, Mr. Quinn hid behind the presidential
election season in an attempt to blunt the Committee's
legitimate investigation. No explanation was provided as to why
the White House had yet to provide the Committee with a
privilege log or why documents still were being produced three
months after the due date of the subpoena. Significantly, Mr.
Quinn cited no legal basis or any case law in support of
withholding subpoenaed documents.
On the morning of May 3, 1996, Mr. Quinn spoke to Chairman
Clinger by telephone in an attempt to reach a consensus on the
documents or at least delay the Committee's actions. Chairman
Clinger informed Mr. Quinn that it would be helpful to have a
better understanding of the nature of the documents in dispute,
which is why the Committee requested a privilege log. Mr. Quinn
stated that he would try to produce such a document.
On the evening of May 3, 1996, Mr. Quinn telecopied a
letter to Chairman Clinger which cryptically described the
contents of the disputed records. No privilege log was
provided. Mr. Quinn described the disputed documents as
follows:
1. Documents relating to ongoing grand jury
investigations by the Independent Counsel;
2. Documents created in connection with Congressional
hearings concerning the Travel Office matter; 12
and
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\12\ This Administration has followed a long history of providing
congressional committees with documents created in connection with
congressional hearings. See, Morton Rosenberg, ``Legal and Historical
Substantiality of Former Attorney General Civiletti's Views as to the
Scope and Reach of Congress' Authority to Conduct Oversight of the
Department of Justice,'' CRS, October 15, 1993, in ``Damaging Disarray:
Organizational Breakdown and Reform in the Justice Department's
Environmental Crimes Program,'' Staff Report of the Subcom. on
Oversight and Investigations, House Committee on Energy and Commerce,
103rd Congress, 2d Session, 321-350, Comm. Print No. 103-T, 1994.
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3. Certain specific confidential internal White House
Counsel office documents including ``vetting'' notes,
staff meeting notes, certain other counsel notes,
memoranda which contain pure legal analysis, and
personnel records which are of the type that are
protected by the Privacy Act.13
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\13\ This vague, broad and non-descriptive category of withheld
documents, if accepted by the Committee, would be tantamount to
accepting a type of broad, undifferentiated claim of executive
privilege which was rejected by the court in U.S. v. Nixon, 418 U.S.
683 (1973).
Chairman Clinger responded to Mr. Quinn on the morning of
May 6, 1996, to remind him that the Committee was seeking
internal deliberative documents due to the pattern of conduct
established by the Counsel's office in previous investigations.
The documents identified in the three categories by Mr. Quinn
are needed by this Committee to resolve the questions
surrounding the White House Counsel Office's involvement in
prior investigations. It would be irresponsible for this
Committee to allow the subject of an inquiry to determine what
documents shall or shall not be shared with Congress.
In his letter to Mr. Quinn, Chairman Clinger stated:
When I met with you on February 15, 1996, you
presented an offer to resolve our ongoing document
dispute by providing the Committee with limited access
to some of the disputed materials as long as we
surrender our right to demand the remaining categories
of documents. If we refused your offer, I understood,
the entire ``basket'' of disputed documents would be
withheld and our disagreement would continue. This was
presented as your final offer. . . . The effective
result of my letter of May 2, 1996, was to formerly
reject your offer and notify you that a determination
was reached concerning the withheld documents.
Chairman Clinger offered Mr. Quinn the opportunity, in
another letter dated May 7, 1996, to draft a statement to the
Committee addressing any valid executive privilege assertions
in order to explain to the Committee why he should not be held
in contempt of Congress for his failure to produce subpoenaed
documents.
The Committee is determined to ensure that the Clinton
Administration does not succeed in its attempt to limit
Congress' Travel Office investigation as it has done with every
preceding investigation. The issuance of subpoenas was not
sufficient to ensure the production of all relevant records.
Unfortunately, it is necessary to take the serious step of
holding parties who fail to produce requested documents in
contempt.
C. Importance of oversight of the White House
From the earliest days of our government, courts have
recognized ``the danger to effective and honest conduct of the
Government if the legislature's power to probe corruption in
the executive branch were unduly hampered.'' 14 In McGrain
v. Daugherty, 15 the Court described the power of inquiry,
with the accompanying process to enforce it, as ``an essential
and appropriate auxiliary to the legislative function.'' As
Senator Sam Ervin noted 25 years ago:
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\14\ Watkins v. United States, 354 U.S. 178 (1957).
\15\ 273 U.S. 135, 174-175 (1927).
When the people do not know what their government is
doing, those who govern are not accountable for their
actions--and accountability is basic to the democratic
system. In effect, those who govern are insulated from
the effects of their actions, and the populace is
precluded from obtaining the knowledge that is
necessary to control the actions of the government in
the manner envisioned by the Founding Fathers.16
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\16\ ``Executive Privilege: The Withholding of Information by the
Executive.'' Hearings before the Subcommittee on the Separation of
Powers, Senate Judiciary Committee, 92nd Congress, 1st Session (1971),
p.4.
Congressional oversight is an essential tool in holding the
Executive Branch accountable for its actions. When oversight is
conducted into possible inappropriate activity at the White
House, this concept of accountability is particularly
important. Unlike all other federal agencies, the White House
has no Inspector General. The highest office in the land cannot
be held to a lower standard of accountability. Vigorous
oversight of the Executive Branch must not be thwarted if we
are to preserve our trust in the highest office of the land.
Finally, lest there be any misunderstanding of the
appropriateness of public disclosure of certain materials under
the proper circumstances, it must be remembered that the
informing function is one of the manifold responsibilities of
Congress in conducting oversight. As Woodrow Wilson wrote:
It is the proper duty of a representative body to
look diligently into every affair of government and to
talk much about what it sees . . . Unless Congress has
and uses every means of acquainting itself with the
acts and the disposition of the administrative agents
of the Government, the country must be helpless to
learn how it is being served . . . The informing
function of Congress should be preferred even to its
legislative function. The argument is not only that a
discussed and interrogated administration is the only
pure and efficient administration, but, more than that,
that the only really self-governing people is
that people which discusses and interrogates its
administration . . . 17
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\17\ 354 U.S. at 200, Footnote 33.
D. Committee action
The subpoenas issued in early January 1996, were not
complied with on the return date of January 22, 1996, or any
subsequent date thereafter. On Thursday, May 9, 1996, the
Committee met in open session at 10:00 a.m. in Room 2154
Rayburn Office Building for the purpose of determining what
action should be taken in view of the failure of White House
Counsel John M. Quinn, former White House aide David Watkins,
and former White House aide Matthew Moore, to comply with the
subpoena. The Committee, a quorum being present, on a record
vote of 27-19, recommended the adoption of a resolution as
follows:
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the
Committee on Government Reform and Oversight, detailing
the refusal of John M. Quinn to produce papers to the
Committee on Government Reform and Oversight, to the
United States Attorney for the District of Columbia,
for him to be proceeded against in the manner and form
provided by law; and be it further
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the
Committee on Government Reform and Oversight, detailing
the refusal of David Watkins to produce papers to the
Committee on Government Reform and Oversight, to the
United States Attorney for the District of Columbia,
for him to be proceeded against in the manner and form
provided by law; and be it further
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the
Committee on Government Reform and Oversight, detailing
the refusal of Matthew Moore to produce papers to the
Committee on Government Reform and Oversight, to the
United States Attorney for the District of Columbia,
for him to be proceeded against in the manner and form
provided by law.
If the House of Representatives failed to pursue all legal
steps to vindicate its right to this information, it would
undermine severely this investigation into the facts
surrounding the termination of the seven innocent Travel Office
employees. Accordingly, the Committee voted to report to the
House a contempt resolution for John M. Quinn, David Watkins,
and Matthew Moore. Upon adoption by the House, the resolution
would direct the Speaker to turn the matter over to the U.S.
Attorney for prosecution in accordance with 2 U.S.C. sections
192 and 194. That offense carries a maximum sentence of 1 year
in prison, plus fines.
This report will summarize the events which occurred before
and after the seven Travel Office workers were fired on May 19,
1993, including the history of official investigations and the
current dispute over records. Also provided is a chronology of
what this Committee considers to be stonewalling on the part of
White House officials as part of their efforts to deny and
delay official investigative bodies access to pertinent
records. The Committee report also discusses in detail the
various claims made by the condemners to justify their denial
of the requested information and a chronology of the
correspondence that has transpired between the Committee and
White House officials during the past three years. Appendices
include a Congressional Research Service legal opinion and
copies of the relevant subpoenas.
FINDINGS
1. The Committee on Government Reform and Oversight has the
jurisdiction and authority, pursuant to House rule X, 1(g) and
XI, 2(m)(2) to conduct an investigation into the White House
Travel Office matter and the subsequent investigations of this
matter and to require the production of documents by the White
House, the Department of Justice and individuals who have
withheld documents.
2. White House Counsel John M. Quinn's letter invoking an
undifferentiated protective executive privilege assertion over
a vaguely defined group of documents of unknown quantity and
substance at the direction of the President is an ineffective
invocation of the privilege under the guidelines established by
President Ronald Reagan and adopted by President Bill Clinton.
3. White House Counsel John M. Quinn's refusal to turn over
subpoenaed records, issued with bipartisan agreement, or to
properly invoke a valid claim of executive privilege has
needlessly provoked a constitutional confrontation. The White
House has unnecessarily strained our system of government and
interfered materially with the ability of Congress as well as
prior investigative bodies to fulfill oversight
responsibilities in a timely fashion.
4. The Attorney General has provided no legal opinion to
support the President's blanket undifferentiated protective
invocation of privilege. In fact, during her tenure, the
Attorney General has turned over documents similar to some of
those sought in the present matter when dealing with prior
Congressional investigations.
5. A disclosure of arguably privileged documents to a
congressional committee pursuant to a subpoena and the threat
of citation of contempt would not waive the claim of privilege
in any other forum.
6. The assertion of attorney-client and work product
privileges by David Watkins and Matthew Moore with respect to
withheld drafts of the Watkins'' ``soul cleansing'' memo are
without legal foundation. There is no credible evidence that
Watkins established an attorney-client relation with Moore; and
even if established, it was waived by its disclosure to Patsy
Thomasson, other White House personnel, and to the media upon
its discovery in Thomasson's files. The failure to maintain
confidentiality also waives any claim under the work produce
doctrine.
7. The ongoing criminal investigation by the Independent
Counsel into the White House Travel Office matter and the
criminal referral of a high ranking White House official who
was centrally involved in this matter makes the withholding of
documents particularly troubling. President Bill Clinton has
altered a policy in effect since the Kennedy Administration.
The operative policy has always been to refuse to claim
executive privilege when allegations of wrongdoing are at
issue.
8. Despite White House claims to the contrary, the unknown
quantity and substance of undefined documents withheld are
directly relevant and necessary to the Committee's inquiry into
the response by the White House to the various investigations
over the past three years as well as the dilatory responses to
this Committee.
9. The White House's statements about the large quantity of
documents produced and its self-serving pronouncements
regarding compliance do not amount to responsiveness to either
the Committee's needs or the bipartisan subpoenas. Congress
makes the determination of what documents are necessary for an
investigation; the President does not make that determination.
10. The examples of extensive delays by the White House to
this and all previous investigations detailed extensively in
the record contradict White House statements that it
accommodated and cooperated with this or previous
investigations into the Travel Office matter. Numerous
government officials as well as this Committee concluded the
White House has behaved in a dilatory manner when responding to
matters related to the White House Travel Office investigation.
11. The White House has made misleading statements in
describing some of the withheld documents suggesting
alternatively that the number of documents withheld was
``small'' at first. The Attorney General claims there is a
``large'' group of documents to review for executive privilege
assertion.
12. Despite extensive efforts by the Committee to engage in
voluntary document production, the White House engaged in a
long-drawn-out and selective documents production only as this
Committee applied increasing pressure or as outside sources
came forward with similar information.
FACTS, BACKGROUND, AND FINDINGS
A. President Terminates Employment of Seven Career Travel Office
Workers
At approximately 10:00 a.m., on May 19, 1993, all seven
members of the White House Travel Office staff summarily were
fired. The five Travel Office employees present in the White
House that day were ordered to vacate the White House compound
within two hours. Returning to their Travel Office by 10:30
a.m., the fired Travel Office employees found their desks
already occupied by employees of World Wide Travel, the
Arkansas travel agency which arranged for press charters during
the Clinton presidential campaign.
Two White House Travel Office employees were absent from
the White House Travel Office on May 19, 1993, one on a White
House advance trip to South Korea, the other on vacation. They
learned of their firings, respectively, via CNN telecast and
from a son who saw Tom Brokaw announce the firings on network
news that night. The seven White House Travel Office employees
had served from 9 to 32 years in the White House Travel Office.
The five Travel Office employees who were present in the
White House for their firings ultimately were given additional
time to complete their White House out-processing. By early
afternoon, they heard then-White House Press Secretary Dee Dee
Myers announce at a press briefing that they were the subject
of an FBI criminal investigation. They had been given no such
indication at the time of their dismissals. After completing
the out-processing, the five Travel Office employees present on
May 19, 1993, were driven out of the White House compound in a
panel van with no passenger seats, seated only on their boxes
of personal belongings.
It subsequently was revealed that the events precipitating
the Travel Office firings had intensified almost a week before,
on May 13, 1993, when Associate White House Counsel Bill
Kennedy summoned the FBI to the White House. He informed the
FBI that those at ``the highest level'' in the White House
wanted prompt action on a matter allegedly involving financial
wrongdoing. The FBI dispatched two sets of agents to consider
jurisdictional issues. The first pair tried to tell their
superiors they weren't the ``right guys for the job,''
recommending that a field agent be sent per standard procedure.
Mr. Kennedy was ``adamant'' that headquarters personnel with a
``national perspective'' be involved. Senior FBI officials
complied, sending the acting chief of the Violent Crimes and
Major Offenders section to the White House Travel Office.
The second set of FBI agents met with Catherine Cornelius,
the President's cousin, on May 13, 1993. David Watkins had
dispatched Ms. Cornelius to the Travel Office, where she copied
and removed documents. In the wake of Ms. Cornelius' own
meetings with Mr. Harry Thomason, a Hollywood producer and
longtime friend of the President and the First Lady,
allegations of kickbacks and expensive lifestyles were raised
against the Travel Office employees. The FBI accepted Ms.
Cornelius' recitation of these otherwise unsubstantiated
allegations as sufficient predication to launch a criminal
investigation.
Even as the FBI informed the White House it had sufficient
predication to launch an investigation on May 13, 1993, the
White House Counsel's office shifted gears, informing the FBI
agents that the White House first would conduct an outside
audit, and later allow the FBI to proceed with an investigation
if one were warranted. The FBI insisted it should be present at
the Travel Office during the audit but Deputy White House
Counsel Vince Foster and Mr. Kennedy overruled it. The FBI
acquiesced.
On May 14, 1993, the White House brought in an
``independent auditor'' who was in fact neither independent nor
an auditor. The management consulting (not the public
accounting) arm of KPMG Peat Marwick was engaged to conduct a
management review. KPMG Peat Marwick's engagement letter, draft
and final reports all stated that it was not asked to and
indeed did not conduct the procedures necessary for an ``audit,
examination or review in accordance with'' established
accounting standards.
On Monday, May 17, 1993, Mr. Watkins wrote a memo to Chief
of Staff Thomas F. (Mack) McLarty regarding the planned Travel
Office firings. Mr. Watkins copied this memo to the First Lady.
The memo was telecopied to Director of Media Affairs Jeff
Eller, who was traveling with the President in California. Mr.
Eller discussed the memo with presidential advisor and
confidant Bruce Lindsey. White House Management Review notes
indicate that Mr. Lindsey discussed the memo with the President
in California.
Well before the final KPMG Peat Marwick report was written,
the White House decided to fire the Travel Office employees on
Wednesday, May 19, 1993, and so advised the FBI. The FBI warned
that the firings would harm the investigation it initiated on
May 14, 1993, but the White House ignored its concerns and,
once again, the FBI and Justice Department acquiesced.
After the Travel Office firings were announced at a May 19,
1993, press briefing, KPMG Peat Marwick partner Larry Herman
was ushered into a meeting with George Stephanopoulos, Dee Dee
Myers, Vince Foster, Bill Kennedy, Ricki Seidman and Harry
Thomason and greeted with the question, ``Where the hell is the
report?'' The White House had only a few pages of draft
material when it announced the firings it said were based on
the KPMG Peat Marwick report. The press repeatedly asked for
the report in the May 19, 1993 press briefing.
Both the President and First Lady were informed of the
Travel Office matter prior to the May 19, 1993 firings. Harry
Thomason, Vince Foster and David Watkins appear to have advised
the First Lady regularly about Travel Office particulars. Harry
Thomason worked at the White House late into the night on May
13, 1993, and Mr. Foster's Travel Office file indicates the
First Lady received updates from both Mr. Foster and Mr.
Watkins that evening. Other White House notes reveal that Mr.
Thomason also had conversations with the First Lady about the
firing of the Travel Office employees. Talking points had been
prepared for May 13th stating that Travel Office employees had
been fired that day and that the FBI was performing an audit of
the Travel office.
Mr. Thomason was back in the White House on May 14, 1993,
and throughout the following week. During the course of a World
Wide Travel employee's White House Management Review interview,
Fan Dozier told John Podesta she had talked with Mr. Thomason
on May 16, 1993, and Mr. Thomason said, ``you mean you're not
up there working [in the Travel Office]?'' and added that he
would call the First Lady and she would be very upset to hear
that World Wide Travel was not already in place.
Mr. Thomason told White House staff that he learned the
Travel Office employees were accepting ``kickbacks'' from
friends in the air charter industry. He told Mr. Watkins he
spoke to the First Lady about the matter and that she was
anxious to get ``our people'' into the office because ``we need
the slots.'' Mr. Thomason told Mr. Watkins, Mr. Foster and
others that firing the employees would be a ``good story.''
When White House staffer Jennifer O'Connor asked him if he had
any evidence, Mr. Thomason said he did.
In fact, although the President later claimed in a press
conference that he had heard rumors everywhere, it appears that
Mr. Thomason and Ms. Cornelius were the primary, if not the
sole sources of allegations against the Travel Office employees
reaching the White House. Meanwhile, Mr. Thomason was involved
in a number of other activities at the White House.
``Put me in front of the right person at the White House
and I will prove the value of both the project and Thomason's
capabilities,'' Darnell Martens wrote Harry Thomason, his
business partner in Thomason, Richland and Martens,
Incorporated (``TRM''). Subsequent memos referred to ``a memo
to Harry Thomason which was presented to and discussed with the
President in mid-February'' and a request indicating the
President needed to ``issue an executive order'' and ``enter
into a consulting agreement with TRM'' to get projects for TRM,
Incorporated going.
Mr. Thomason spoke both with President Clinton and
presidential confidant Bruce Lindsey about obtaining their
assistance in his efforts to win a sole source government
contract at GSA to audit the entire federal civilian aircraft
fleet and ``revitalize'' the aircraft industry. Mr. Martens,
who like Mr. Thomason had received his own White House pass,
secured OMB and GSA assistance for his proposals. The White
House claims it pulled the plug on this scheme sometime in the
summer of 1993, during the course of the Travel Office
investigations. When the scope of his White House influence
became controversial, Mr. Thomason said, ``I do find it
surprising that a person who was as instrumental as I was in
the Clinton campaign cannot pick up a phone in the White House
and ask for information from people.''
Ms. Cornelius was ``selected'' to replace seven veteran
Travel Office employees. She followed directions given by David
Watkins and brought in World Wide Travel without a competitive
bid. World Wide, the Clinton/Gore campaign's travel agency,
withdrew from the White House within two days of their arrival
in the wake of intensive press scrutiny.
Within days of the Travel Office firings, the media
reported that Mr. Thomason had telecopied an undated memo by
Mr. Martens to the White House on May 10, 1993, which
contradicted their claims of having no interest in Travel
Office business. The memo in fact discussed efforts by Mr.
Martens to seek the business. It was reported that Ms.
Cornelius had proposed in a February 15, 1993, memorandum that
she be placed in charge of the Travel Office, assuming a role
she had in the Clinton campaign. White House documents indicate
that when the Travel Office story broke, Mr. Watkins and Patsy
Thomasson asked Ms. Cornelius and a second employee to lie
about the February 15, 1993, memo by saying that Mr. Watkins
never read it.
Mr. Martens summoned air charter broker Penny Sample to the
White House without a competitive bid. Ms. Sample also had
worked on Clinton/Gore campaign travel charters with TRM,
Incorporated. The White House claimed that Ms. Sample came on a
voluntary basis but after she received what was touted as
``erroneous commissions,'' she was asked to leave the White
House.
On May 21, 1993, after World Wide Travel decided to leave
the White House, Patsy Thomasson held a closed-door meeting
with American Express while Secret Service agents guarded the
door, according to White House Management Review notes. Later
that day, George Stephanopoulos announced that American Express
would be brought into the White House, but the White House
subsequently claimed it was putting the contract out to bid.
American Express won and entered the Travel Office the
following Monday.
Also on May 21, 1993, the Internal Revenue Service raided
the Smyrna, Tennessee, offices of UltrAir, a small company
which provided most of the Travel Office's domestic press
charters and which stood accused by Harry Thomason of
participating in kickbacks. Two years after an expensive and
distracting investigation, UltrAir was cleared of any
wrongdoing. A former UltrAir executive who also was audited
actually received a $5,000 tax refund.
While the Travel Office employees served at the pleasure of
the President, their precipitous firings and replacement by the
Clinton campaign's primary travel agency immediately raised a
storm of criticism. Administration claims that it had acted in
order to save the press and taxpayers money were met with
skepticism by a White House press corps which responded with a
litany of complaints of over billing and undocumented charges
by World Wide Travel itself throughout the 1992 campaign. In
addition, the Clinton Administration's announcement that an FBI
criminal investigation had been launched was highly improper
and, in fact, questionable when it was announced. Furthermore,
Attorney General Janet Reno considered White House contacts
with the FBI in the days leading up to and immediately
following the Travel Office firings also were considered
improperly handled, who publicly admonished the Administration
for them.
B. Members of Congress Call for Investigation
Members of the House and the Senate immediately raised
concerns about the manner in which the Travel Office firings
took place. In the face of press, public and Congressional
outcry, the White House placed five of the seven Travel Office
employees on administrative leave with pay on May 25, 1993, and
announced that it would conduct a White House Management Review
of the Travel Office and the Administration's role in the
Travel Office firings. The fired Travel Office director and
deputy director retired.
On June 1, 1993, William F. Clinger, Jr., the then-ranking
minority member of the House Government Operations Committee,
requested that then-Chairman John Conyers, Jr., hold hearings
on the White House Travel Office firings.
Then-White House Chief of Staff Thomas F. (Mack) McLarty
and then-Office of Management and Budget Director Leon Panetta
released the White House Travel Office Management Review on
July 2, 1993, and announced the reprimands of four White House
staffers. Reprimanded were: Associate Counsel to the President,
William H. Kennedy, III; Assistant to the President for
Management and Administration, David Watkins; former Special
Assistant to the President for Management and Administration,
Catherine A. Cornelius; and Deputy Assistant to the President
and Director of Media Affairs, Jeff Eller. At least three of
the four first learned of the ``reprimands'' during their
televised announcement. None of the reprimands were documented
in the personnel files of any of the four.
Also on July 2, 1993, the Supplemental Appropriations Act
of 1993 (P.L. 103-50) was signed into law requiring the United
States General Accounting Office (GAO) to ``conduct a review of
the action taken with respect to the White House Travel
Office.''
In addition to the White House Management Review and the
GAO Report entitled ``White House Travel Office Operations''
(Released on May 2, 1994), at least three other reports were
prepared concerning various aspects of the White House Travel
Office firings. These reports were prepared by: the Office of
Professional Responsibility (OPR) of the United States
Department of Justice (dated March 18, 1994 and released by the
Committee on October 24, 1995); a Federal Bureau of
Investigation Internal Review of FBI Contacts with the White
House (dated June 1, 1993), and the Department of Treasury
Inspector General Report ``Allegation of Misuse of IRS RE:
ULTRAIR'' (dated June 11, 1993).
The OPR report was initiated on July 15, 1993, by then-
Deputy Attorney General Phillip Heymann in an e-mail message to
Justice Department aide David Margolis. This report was in
response to Congressional pressure for more answers as well as
the President's commitment in a July 13, 1993, letter to then-
Chairman Brooks of the House Judiciary Committee pledging that
he would cooperate fully with any inquiry.
On September 23, 1993, after consultations with majority
staff of the Government Operations Committee, Mr. Clinger
withdrew his request for Committee hearings on the White House
Travel Office firings, ``contingent upon the adequacy of the
GAO effort'' which had been mandated by Congress through P.L.
103-50.
Individually and collectively, the five reports prepared
concerning the White House Travel Office left many questions
unanswered and, in fact, raised many more. Several Members of
Congress, including Mr. Clinger, sought to have these questions
answered through further investigation and Congressional
hearings. In a letter dated October 7, 1994, Mr. Clinger and 16
other House Members again requested Congressional hearings on
the White House Travel Office in order to ``address serious
questions arising from, or unanswered by, the General
Accounting Office (GAO) Report to Congress, White House Travel
Office Operations (GAO/GGD-94-132).''
Mr. Clinger's request was accompanied by a 71-page minority
analysis of issues unaddressed by any of the previous five
reports. This analysis reviewed contradictions concerning:
memoranda drafted by Catherine Cornelius outlining its new
organizational structure and placing her in charge; activities
of Harry Thomason and Darnell Martens; mismanagement by David
Watkins; White House reasons justifying the Travel Office
firings; contacts between Dee Dee Myers and Darnell Martens;
public disclosure of the FBI investigation; possible influence
on the FBI; the integrity of Travel Office records; the role of
the President; the reprimands, and inaccuracies and
insufficiencies in the GAO report on the White House Travel
Office. In response to this report, then-Chairman Conyers of
the House Government Operations Committee wrote then-Ranking
Member Clinger, ``You have raised serious questions about GAO's
report to Congress'' and asked that GAO provide a ``detailed
response'' to Mr. Clinger's concerns. No such response was
provided.
C. Committee's Investigation
Soon after the November, 1994, Congressional elections, Mr.
Clinger, Chairman of the Government Reform and Oversight
Committee of the 104th Congress, announced that he would hold
hearings on the White House Travel Office firings. In December,
1994, the Public Integrity Division of the United States
Department of Justice indicted former White House Travel Office
Director Billy R. Dale on one charge of embezzlement and one
charge of conversion.
The Committee conducted interviews and gathered documents
from various participants in the Travel Office matter on a
voluntary basis throughout the spring and summer of 1995. White
House document production, however, proved problematic and led
to numerous meetings, correspondence and phone conversations
with Clinton administration representatives in the White House
Counsel's Office, the Department of Justice, the Department of
the Treasury, and the General Accounting Office.
In the fall of 1995, Chairman Clinger scheduled the
Committee's first hearing on the White House Travel Office for
October 24, 1995. The hearing focused on the accuracy and
completeness of the five White House Travel Office reports and
to consider whether further hearings were required to address
unanswered issues. The panel at the October 24, 1995, hearing
included authors of each of the five reports, respectively.
This hearing purposely avoided all areas that might have
impacted upon the trial of former Travel Office Director Billy
R. Dale which was to commence on October 26, 1995.
The Committee reviewed which of seven key Travel Office
issues each report addressed. These issues were: the
completeness of the review of references to ``Highest Levels''
involvement at the White House in the Travel Office firings;
whether any assessment of White House Standards of Conduct was
performed and whether Administration staffers had violated
those standards; whether inquiries were made into the role of
Hollywood producer Harry Thomason in the firings; the role of
Mr. Thomason and his firm, TRM, Incorporated in seeking
contracts involving the Interagency Committee on Aviation
Policy (``ICAP''); whether the issue of competitive bidding by
the White House Travel Office and by the White House itself in
dealing with the Travel Office was reviewed; and whether
thorough investigations into FBI and IRS actions and reactions
to the White House inquiries had been undertaken.
The hearing made clear that, given limitations on their
scopes and limited access to documents and witnesses, none of
the reports fully addressed the issues raised by the Travel
Office firings. The redactions to the Treasury Inspector
General IRS report made it impossible to determine whether the
IRS addressed any of the seven issues. The OPR and FBI reports
only partially addressed two issues--``FBI actions'' and
references to ``Highest Levels of the White House''--and never
addressed the other five. Despite its far greater understanding
of the participants and circumstances leading to the Travel
Office firings--or arguably because of it--the White House
Travel Office Management Review only briefly and superficially
addressed Harry Thomason's role, FBI actions and references to
``Highest Levels'' of the White House while ignoring
competitive bidding, IRS action, standards of conduct and ICAP
contracts. Similarly, the GAO relied on the White House
Management Review in its report on Mr. Thomason's role and only
partially addressed FBI actions and ``Highest Levels'' while
leaving ICAP, competitive bidding and standards of conduct
unaddressed. IRS disclosure laws prevented the GAO from
publicly addressing IRS actions.
The October 24, 1995, hearing also made clear that the GAO
and OPR reports were hobbled by what their respective authors
referred to as an unprecedented lack of cooperation by the
White House in their investigations. It was determined in the
hearing that the White House had denied both GAO and OPR
documents which were critical to their investigations. Both GAO
and OPR never received many of the documents subsequently
produced by the White House to this Committee.
The criminal trial of former Travel Office Director Billy
R. Dale began on October 26, 1995, and concluded on November
17, 1995, with Mr. Dale's acquittal of one charge each of
embezzlement and conversion after just two hours of jury
deliberations. After the acquittal was announced, Chairman
Clinger requested that the Public Integrity Section of the
Department of Justice turn over all documents related to the
criminal prosecution for review by the Committee.
At year-end 1995, the Committee planned hearings on: the
role of Mr. David Watkins in the Travel Office firings; the
experiences of the seven fired Travel Office employees; the
role of Mr. Harry Thomason; and the role of the FBI and IRS. In
January 1996, the Committee subpoenaed all of Mr. Thomason's
documents related to the Travel Office and filed a ``6103
Waiver'' with the IRS in which representatives of UltrAir
authorized the IRS, Department of Treasury and others to
release all relevant documents concerning the IRS audit of
UltrAir in the wake of the Travel Office firings. The
Department of the Treasury promised prompt delivery of all
documents pending receipt of the expanded 6103 waiver.
At 8:30 p.m. on January 3, 1996, the White House delivered
a document production to Committee offices. Included in that
production was a 9-page, undated draft memorandum written by
David Watkins, a copy of which was simultaneously released to
the media. Mr. Watkins wrote in this memorandum, which he
characterized as a ``soul cleansing'' memorandum, that he had
made his ``first attempt to be sure the record is straight,
something I have not done in previous conversations with
investigators--where I have been as vague and protective as
possible.'' The Watkins draft memo ascribed a far greater
Travel Office role to First Lady Hillary Rodham Clinton than
the White House or Mrs. Clinton ever had admitted:
On Monday morning you [then-White House Chief of Staff
McLarty] came to my office and met with me and Patsy Thomasson.
At that meeting you explained that this was on the First Lady's
``radar screen.'' I explained to you that I had decided to
terminate the Travel Office employees and you expressed relief
that we were finally going to take action (to resolve the
situation in conformity with the First Lady's wishes). We both
knew there would be hell to pay if, after our failure in the
Secret Service situation earlier, we failed to take swift and
decisive action in conformity with the First Lady's wishes.
Mr. Watkins concluded that his memo:
[Made] clear that the Travel Office incident was driven by
pressures for action originating outside my Office. If I
thought I could have resisted those pressures, undertaken more
considered action, and remained in the White House, I certainly
would have done so. But after the Secret Service incident, it
was made clear that I must more forcefully and immediately
follow the direction of the First Family. I was convinced that
failure to take immediate action in this case would have been
directly contrary to the wishes of the First Lady, something
that would not have been tolerated in light of the Secret
Service incident earlier in the year.
The Watkins draft memorandum was responsive to the
September, 1995, document request by the Committee. Moreover,
back in October, 1995, the White House Counsel's Office had
informed the Committee that it had produced most of the
substantive documents pursuant to that request.
The White House explained weeks afterwards that it first
discovered the Watkins draft memorandum on December 29, 1995.
The memorandum was reviewed by the White House Counsel's office
and copied to several Administration officials as well as the
personal attorneys for Mack McLarty, Patsy Thomasson, Harry
Thomason, and the President and First Lady by January 2, 1996.
The White House released the Watkins draft memorandum to the
media on the evening of January 3, 1996, at the same time it
released the documents to the Committee.
On January 5, 1996, Chairman Clinger issued subpoenas to
both David Watkins and Harry Thomason for all records
concerning the White House Travel Office and related matters.
On January 11, 1996, Chairman Clinger issued interrogatories
concerning the origin and chain-of-custody of the original and
all copies of the Watkins draft memorandum to be answered in
writing and under oath by:
Jane C. Sherburne, Special Counsel to the President.
Jon Yarowsky, Associate Counsel to the President.
Natalie Williams, Associate Counsel to the President.
Miriam R. Nimetz, Associate Counsel to the President.
Christopher D. Cerf, Associate Counsel to the
President.
Nelson Cunningham, General Counsel, Office of
Administration.
Patsy Thomasson, Deputy Director of White House
Personnel.
Also on January 11, 1996, the Committee issued bipartisan
subpoenas for all relevant records to the White House Executive
Office of the President and the White House Office of
Administration as well as bipartisan personal subpoenas to Mack
McLarty, Bruce Lindsey, Todd Stern, Patsy Thomasson, Catherine
Cornelius and Margaret Williams. The documents subpoenaed were
due on January 22, 1996.
In the wake of the White House's release of the Watkins
draft memorandum, Clinton officials, attorneys and surrogates
launched attacks on the character and managerial skills of
former Travel Office Director Billy Dale. First Lady Hillary
Rodham Clinton also assailed Mr. Dale's management in various
interviews. As a result, Chairman Clinger wrote President
Clinton on January 16, 1996, requesting that the White House
cease its continued attack on Mr. Dale.
On January 17, 1996, the Committee held its second hearing
on the Travel Office matter. David Watkins was the sole witness
at this hearing, at which he requested that no still or video
cameras be allowed to record his testimony, invoking a House
rule. In the hearing, he testified under oath regarding his
draft memorandum and other records he had turned over to the
Committee pursuant to a personal subpoena. Watkins testified,
``Was there pressure? Did I feel pressure of the desires and
wishes of others? Yes, I did.'' Watkins testified he had felt,
``a lot of internal pressure,'' and was asked by whom. He
answered: ``The President and First Lady.'' He also testified:
``The pressure that I felt was coming from the First Lady was
conveyed primarily through Harry Thomason and Vince Foster.''
Mr. Watkins' May 12, 1993, notes, first received by the
Committee under personal subpoena, stated that Harry Thomason
told him on that day that the First Lady wanted the Travel
Office staff fired that day. In a May 14, 1993, telephone call
to the First Lady, Watkins testified, he was told, ``We should
get our people in and get those people out.''
In the wake of the discovery of the Watkins' memorandum
where inconsistencies between Mr. Watkins' statements to the
GAO and his undated memorandum and contemporaneous notes became
clear, Chairman Clinger asked GAO to advise the Committee
concerning what sanctions exist for intentionally providing
false information to GAO. GAO responded in a letter dated
January 17, 1996, which addressed the relevant statutes and
legal precedents. In a January 23, 1996, response to GAO,
Chairman Clinger asked that GAO compare and contrast the notes
of its interviews with Mr. Watkins with copies of interviews
conducted with Mr. Watkins by various investigative agencies,
Mr. Watkins' draft memorandum and contemporaneous notes and
other materials. Chairman Clinger asked that GAO identify all
of the material inconsistencies between the documents provided
and GAO's own interview notes and to determine whether they met
the materiality test required by any applicable statute.
The seven fired Travel Office employees testified on
January 24, 1996, when the Committee held its third hearing on
the White House Travel Office firings. The seven fired Travel
Office employees testified about their work in the White House
Travel Office and the management of press charters, the events
leading to their firings on May 19, 1993, and their
investigation at the hands of the FBI and IRS. Individually,
they testified of the costs of their respective legal defenses
which, all told, amounted to some $700,000.
While all seven acknowledged that they served at the
pleasure of the President, they questioned the manner in which
the firings were undertaken. Mr. Dale testified:
If the President or the First Lady or anyone else wanted us
out in order to give the business to their friends and
supporters, that was their privilege. But why can't they just
admit that is what they wanted to do rather than continue to
make up accusations to hide that fact?
Mr. Billy Dale testified in the hearing that records
disappeared from the Travel Office in the period immediately
preceding the firings and disputed allegations of Travel Office
mismanagement as a ``convenient excuse'' intended to justify
the firings. Five of the Travel Office employees testified
about being placed on administrative leave within a week of the
firings and subsequently finding employment elsewhere in the
federal government. Mr. Dale and former White House Travel
Office Deputy Director Gary Wright had retired from federal
service in the aftermath of the firings in 1993.
In a letter to the Committee dated January 23, 1996, Mr.
David L. Clark, Director of Audit Oversight and Liaison for the
General Accounting Office, evaluated current White House Travel
Office management using the 29 criteria identified in its May
1994, report on the Travel Office. The evaluation was based on
work performed by GAO in the Travel Office in the fall of 1995.
GAO stated:
We found that the Travel Office had developed policies and
implemented procedures during the period January 1995 through
August 1995 to address all but 3 of the 29 criteria. For those
three, we found that the Travel Office had not (1) billed
customers within its stated 15-day requirement, (2) paid
vendors within its stated 45-day requirement, and (3) performed
bank reconciliations regularly.
GAO also reported:
[T]he Travel Office had a policy requiring monthly
reconciliations of its checkbook with the cash balance reported
by its bank. As of April 1994, we found that staff were
performing the reconciliations as required. However, from
January 1995 through August 1995, Travel Office staff performed
no bank reconciliations because other tasks were given a higher
priority. Immediately prior to our review, the Travel Office
reconciled all outstanding bank statements and found deposits
totaling $200,000 that had not been entered into its checkbook.
These funds were all owed to vendors who had previously
furnished goods and services for press trips. White House
officials informed us that future monthly reconciliations will
be performed as required.
GAO's discovery of a $200,000 discrepancy in White House
Travel Office deposits for calendar year 1995 is a matter of
some concern given that the White House alleged in May, 1993,
that it had fired the entire Travel Office staff and launched
an FBI criminal investigation on the basis of a $18,200
discrepancy in Travel Office petty cash funds.
On January 30, 1996, General Counsel Robert P. Murphy of
the General Accounting Office wrote Chairman Clinger addressing
inconsistencies between statements made by David Watkins to GAO
and Watkins' undated draft memorandum and notes taken by
Watkins which were dated May 31, 1993, and Watkins' GAO
interview and other relevant documents.
On February 1, 1996, Chairman Clinger and Senate Judiciary
Committee Chairman Orrin Hatch (R-UT) introduced a bill to
reimburse the legal expenses of the seven fired White House
Travel Office employees. The bill would reimburse nearly
$500,000 spent by Mr. Billy Dale on his defense as well as the
Travel Office expenses still due by his six colleagues. In a
1994 appropriation, Congress previously reimbursed $150,000 in
their legal expenses.
On February 7, 1996, the Committee issued additional
bipartisan personal subpoenas to a number of current and former
White House employees, volunteers, friends and others involved
in the Travel Office matter, including Matt Moore.
On February 13, 1996, following consultation with Chairman
Clinger, the GAO asked Federal prosecutors to investigate
possible false statements made to GAO by David Watkins, having
concluded that statements made or attributed to Mr. Watkins
were inconsistent with statements he made in his GAO interview.
Justice Department officials submitted the referral to the
Independent Counsel and asked the court to approve an expansion
of the scope of Independent Counsel Kenneth Starr to include
this referral.
The Government Reform and Oversight Committee submitted a
list of 26 interrogatories to First Lady Hillary Rodham Clinton
on February 15, 1996. These interrogatories were to be answered
in writing and under oath by the First Lady by February 29,
1996. The White House subsequently asked for an extension and
the Chairman of the Committee on Government Reform and
Oversight agreed to a three-week extension. The White House
provided the First Lady's sworn responses to the Committee on
the second due date, March 21, 1996. Her responses were
released to the media at the same time. In the responses, the
First Lady insisted she had no decision-making role in the
Travel Office firings and that her statements to GAO were
accurate. As to conversations with Harry Thomason, Vince Foster
and David Watkins, the First Lady had very few specific
recollections.
Chairman Clinger submitted H. Res. 369, which was referred
to the Committee on Rules, on February 29, 1996. H. Res. 369
provided special authority to the Committee on Government
Reform and Oversight to obtain testimony for purposes of
investigation and study of the White House Travel Office
matter. The bill was limited, deliberately, to provide
deposition authority to the Committee on Government Reform and
Oversight only for its investigation of the Travel Office
matter. Deposition authority allowed the Committee to obtain
sworn testimony from witnesses while minimizing the number of
hearings needed in order to complete the investigation.18
---------------------------------------------------------------------------
\18\ Precedents for such deposition authority have included: 1)
President Nixon Impeachment Proceedings (93rd Congress, 1974, H.Res.
803); 2) Assassinations Investigation (95th Congress, 1977, H.Res.
222); 3) Koreagate (95th Congress, 1977, H.Res. 252 and H.Res. 752); 4)
Abscam (97th Congress, 1981, H.Res. 67); 5) Iran-Contra (100th
Congress, 1987, H.Res. 12); 6) Judge Hastings Impeachment Proceedings
(100th Congress, 1987, H.Res. 320); 7) Judge Nixon Impeachment
Proceedings (100th Congress, 1988, H.Res. 562); and 8) October Surprise
(102nd Congress, 1991, H.Res. 258).
---------------------------------------------------------------------------
The House approved H.Res. 369 on March 7, 1996. Thereupon,
the Committee on Government Reform and Oversight notified
witnesses it wished to testify under oath before the Committee.
Depositions commenced in late March, 1996, and are expected to
be completed by June, 1996.
The White House made a March 15, 1996, production of
documents pursuant to the Committee's January 11, 1996,
subpoena. That production contained yet another unproduced May
3, 1994, handwritten letter from David Watkins to Mrs. Clinton.
No explanation for the White House's failure to produce this
document for nearly two years during the course of numerous
other document requests and subpoenas was proffered until two
requests for a chain- of-custody were made. Mr. Quinn finally
responded on April 5, 1996, stating only that the letter was
located in a stack of unsorted, miscellaneous papers and
memorabilia in the Office of Personal Correspondence having
been forwarded to Carolyn Huber from the First Lady. Ms. Huber
forwarded the original letter to the First Lady on March 4,
1996. Mr. Quinn stated that Mrs. Clinton did not look at the
letter until March 12, 1996, at which time she immediately sent
the only copy of the White House document to her personal
lawyer, David Kendall. Mr. Kendall reviewed the original and
returned a copy, and later the original, to Special White House
Counsel Jane Sherburne.
On March 22, 1996, the three-judge federal appeals panel
which appointed Kenneth W. Starr Whitewater Independent Counsel
approved an expansion of Independent Counsel Starr's mandate to
include the issue of whether Mr. David Watkins lied about First
Lady Hillary Rodham Clinton's role in the Travel Office firings
and related matters. Attorney General Janet Reno referred the
Watkins matter to the three-judge panel after the Justice
Department had concluded that Watkins could be investigated by
an independent counsel.
By a vote of 350 to 43 on March 19, 1993, the House of
Representatives passed H.R. 2937, a bill to reimburse the legal
expenses and related fees incurred by former employees of the
White House Travel Office with respect to the termination of
their employment in that office on May 19, 1993.
In document productions from individuals subpoenaed, the
Committee was provided with a copy of a February 15, 1996,
White House Memorandum from John M. Quinn, Counsel to the
President and Jane C. Sherburne, Special Counsel to the
President, to a witness who had been subpoenaed by the
Committee on Government Reform and Oversight to provide all
records related to the White House Travel Office matter in the
witness' possession to the Committee. The memorandum from Mr.
Quinn and Ms. Sherburne stated, in part:
Last week, the Committee [on Government Reform and
Oversight] issued personal subpoenas to you and other current
and former White House employees. These personal subpoenas call
for personal as well as White House records. The Counsel's
Office will handle production of your responsive White House
records, i.e., records created or obtained during the course of
your official duties. Accordingly, you should forward any White
House records you believe may be responsive to the Counsel's
Office and we will determine whether they should be produced to
the Committee. You should provide any responsive personal
records directly to the Committee. [Emphasis in original.]
The existence of the February 15, 1996, memorandum from Mr.
Quinn and Ms. Sherburne greatly concerns the Committee because
the February 7, 1996, subpoenas served were personal subpoenas.
Those subpoenaed to provide all relevant White House Travel
Office records in their possession remain personally
responsible for making a complete production, whether or not
the White House chooses to withhold any or all of their
documents from production to the Committee. Given the White
House's continuing unwillingness to make a complete production
of records it has been subpoenaed to provide the Committee, its
instructions in the February 15, 1996, memo by Mr. Quinn and
Ms. Sherburne to witnesses served personal subpoenas, suggests
that the White House intends to play an intermediary role in
the case of current and former White House staffers, volunteers
and others in a manner which may lead to their being held
personally liable for a failure to produce all relevant
records.
In the wake of its discovery of the February 15, 1996,
memorandum by Mr. Quinn and Ms. Sherburne, the Committee wrote
letters to each individual who had been issued a personal
subpoena informing them that all records responsive to the
Committee's January and February 1996, subpoenas must be
produced by May 8, 1996. Chairman Clinger sent similar letters
to White House Counsel Quinn and Attorney General Reno
informing them that all records responsive to White House and
Justice Department subpoenas were to be produced by May 8,
1996.
Chairman Clinger also announced on May 2, 1996, that he had
scheduled a Committee business meeting for Thursday, May 9,
1996, at 9 a.m. to consider a privileged resolution to compel
production of any subpoenaed records relating to the White
House Travel Office which were not provided to the Committee by
May 8, 1996.
WHITE HOUSE HISTORY OF STONEWALLING
The White House response to the several investigations into
the White House Travel Office matter has been a history of
three years of stonewalling. Despite a GAO investigation which
was mandated by law--a law which President Clinton himself
signed, an OPR investigation conducted by the President's own
political appointee, and criminal investigations conducted by
the Justice Department; the White House has continued to
withhold documents relating to Travelgate. An abbreviated
history of the stonewalling follows.
A. GAO Investigation
On July 2, 1993, a law was signed by the President which
included a provision mandating the GAO review of the Travel
Office. The report originally was to be completed by September
30, 1993, but due in part to numerous White House delays,
interviews were not completed until March 1994 and the report
finished in May 1994. Last fall, a GAO representative testified
before this Committee that the measure of cooperation received
from the White House was less than optimal. She further
testified that not all documents were provided to GAO by the
White House. 19 Indeed, the White House denied GAO
responsive documents that only came to light after this
Committee began its investigation. The following is an overview
of White House delays in document production with GAO:
---------------------------------------------------------------------------
\19\ GAO official Nancy Kingsbury testified before the Committee on
October 24, 1995, ``As a practical matter, we depend on and usually
receive the candor and cooperation of agency officials and other
involved parties and access to all their records. In candor, I can't
say that there has been quite as generous an outpouring of cooperation
in this case as might have been desirable.'' See, White House Travel
Office--Day One, Hearings before the House Committee on Government
Reform and Oversight, 104th Cong., 2d Sess., January 24, 1986.
---------------------------------------------------------------------------
While the Justice Department did not object to the White
House interviewing Catherine Cornelius, David Watkins, and a
number of other employees in the course of the White House
Management Review despite the fact that there was an ongoing
criminal investigation, the Justice Department did delay and/or
prevent GAO from completing some of its interviews.
GAO experienced months of delays while seeking documents
regarding the Travel Office matter and ultimately did not
receive all relevant documents pursuant to its document
requests. The White House Counsel's Office worked to narrow the
scope of GAO document requests throughout that period.
As a result of the narrowed document requests, the White
House failed to provide the Vince Foster Travel Office file
(which White House Counsel Bernard Nussbaum kept in his office
following Mr. Foster's death), and the White House failed to
provide the White House Management Review interview notes.
Even the narrowed request however, does not explain why the
White House failed to provide the Watkins ``soul cleansing
memo.'' David Watkins, Matt Moore and Patsy Thomasson all had
copies of the memo and all were made aware of the various
document requests and subpoenas. Matt Moore himself was
involved in the process of producing documents.
White House failed to provide any documents related to the
efforts by Harry Thomason and Darnell Martens to obtain GSA
contracts for their company, TRM.
GAO noted that the level of cooperation that it received
from the White House was not conducive to properly conducting
its work.
B. OPR Investigation
On July 15, 1993, Deputy Attorney General Phillip Heymann
called on the Justice Department's Office of Professional
Responsibility (OPR) to conduct a review of the FBI's role in
the Travel Office firings. Later, after Vincent Foster's death
and the discovery of his ``suicide note,'' Mr. Heymann added to
the investigation a review of the comments in Vincent Foster's
note which mentioned that the ``FBI lied.''
This OPR investigation was ordered after President Clinton
himself wrote to the then Chairman of the Judiciary Committee
that his Administration would cooperate with any Justice
Department investigation. As discussed supra, OPR Counsel
Michael Shaheen later wrote that he was ``stunned'' by the
documents withheld from his inquiry and did not believe the
White House officials he dealt with were cooperative.
The following is an overview of the White House delays and
denials in responding to the Office of Professional
Responsibility investigation:
White House failed to provide the Vince Foster Travel
Office file. OPR Counsel Michael Shaheen wrote a scathing memo
in July 1995 about not receiving this document for OPR's
investigation. Mr. Shaheen wrote: ``we were stunned to learn of
the existence of this document since it so obviously bears
directly upon the inquiry we were directed to undertake in late
July and August 1993 . . .''
The White House only provided the White House Management
Review notes from the interview with Vincent Foster to OPR. OPR
had asked for all of the interview notes. Mr. Shaheen wrote:
``The White House declined to provide the notes and failed to
mention the existence of any handwritten notes by Mr. Foster on
the subject.''
Mr. Shaheen also stated in his memo: ``we believe that our
repeated requests to White House personnel and counsel for any
information that could shed light on Mr. Foster's statement
regarding the FBI clearly covered the notebook [the Vince
Foster Travel Office notebook] and that even a minimum level of
cooperation by the White House should have resulted in its
disclosure to us at the outset of our investigation.''
Shaheen noted that the Vince Foster Travel Office notebook
also had been withheld from the Independent Counsel.
Mr. Shaheen and members of his staff informed Committee
Counsel in an interview that by December, 1993, OPR was
considering going to the Attorney General to request a full
investigation into the Travel Office matter because of the
``very dangerous signals'' sent to the investigators which
indicated possible obstruction of its investigation. Shaheen
and his investigators noted that the memories of White House
witnesses were very vague and this was only several months
after the events in question. Mr. Shaheen's investigation was
cut short by the appointment of the Independent Counsel.
C. Justice Department, Public Integrity Section
In May, 1993, the Public Integrity Section of the U.S.
Department of Justice began a criminal investigation into the
Travel Office matter and shortly thereafter began an
investigation into the roles of Harry Thomason and Darnell
Martens at the White House.
In the course of the Public Integrity Section's
investigation, the White House engaged in the extraordinary
step of withholding documents from its own Justice Department
which was, at the time, conducting a criminal investigation
into the actions of presidential friend Harry Thomason as well
as a criminal investigation of Billy Dale. The Clinton White
House foot-dragging with Justice Department prosecutors caused
Clinton appointee and head of the Public Integrity Section, Lee
Radek, to write in an internal memo:
At this point we are not confident that the White House has
produced to us all documents in its possession relating to the
Thomason allegations . . . [T]he White House's incomplete
production greatly concerns us because the integrity of our
review is entirely dependent upon securing all relevant
documents.
The following is an overview of White House delays and
denials in dealing with the investigation of the Justice
Department's Public Integrity Section.
July of 1993.--The Department of Justice began trying
to get an interview with Harry Thomason while
Thomason's lawyer began trying to get access to the
White House Management Review interview notes of Harry
Thomason.
Summer of 1993.--Public Integrity began seeking
documents from the White House in the summer of 1993
but received little information. As of September 30,
1993, Prosecutor Goldberg wrote to the White House ``to
confirm that the White House had only located two
documents related to Harry Thomason.''
October 12, 1993.--White House Counsel sent an
agreement which would allow Public Integrity prosecutor
Goldberg to ``view'' two Harry Thomason memos.
November 12, 1993.--Goldberg signed an agreement to
view two Harry Thomason ``White House project'' memos
but not take any notes or make copies. At this point,
almost six months after the firings and six months
after the initiation of an investigation into Travel
Office related matters, no one at the White House
appears to have mentioned the GSA/ICAP contracts Harry
Thomason and Darnell Martens generated while seeking
business for their company, TRM.
January 1994--Spring of 1994.--Public Integrity
continued to seek documents about Harry Thomason's
activities at the White House and received its first
ICAP/GSA contract documents regarding efforts by Harry
Thomason and Darnell Martens to seek government
contracts.
March 14, 1994.--Public Integrity wrote to White
House Counsel Eggleston asking for confirmation in
writing that the White House had searched for all Harry
Thomason files.
April 5, 1994.--Neil Eggleston distributed a memo to
gather all Harry Thomason and Darnell Martens documents
by April 7, 1994. It requires a signed certification
stating: ``I have searched my files and I have no
documents responsive to the requests set forth in this
memorandum.''
April 5, 1994.--An FBI e-mail on this date titled:
``WHTO Update'' states: ``there has been some problem
in obtaining records from the White House regarding
Thomason's duties and responsibilities. Goldberg is
considering issuing a subpoena * * * ''
Spring 1994.--Production of Harry Thomason documents
to Public Integrity continues. Matt Moore and Neil
Eggleston were involved in document production. (Matt
Moore possessed copies of the Watkins memos that never
were turned over.)
May 11, 1994.--Neil Eggleston, Joel Klein and Marvin
Krislov (all in the White House Counsel's office) wrote
a letter to the Independent Counsel addressing how the
White House would comply with the Independent Counsel's
grand jury subpoena. (Their letter narrowed the scope
of the Independent Counsel's initial request.)
Sometime in May 1994.--Eggleston reviews the Foster
Travel Office file to determine if it is responsive to
the Special Counsel Robert Fiske subpoena. He decides
that it is not. Eggleston apparently ignores the fact
that the Foster Travel Office file, which mentions
Harry Thomason and Darnell Martens throughout, IS
responsive to the Public Integrity document requests.
June 24, 1993.--Neil Eggleston writes a letter to
Stuart Goldberg informing him that Public Integrity has
all of the Harry Thomason documents as of this date.
(Vince Foster Travel Office file is not included.)
July 10, 1994.--Neil Eggleston writes a memo to Lloyd
Cutler about the Vince Foster Travel Office file and
why it wasn't produced to any investigation to date.
Eggleston recommends producing only portions of the
Foster notebook to Public Integrity by that Tuesday
(July 12, 1994). Those portions are not provided until
one month later.
August 19, 1994.--Neil Eggleston provides the
additional documents from Foster's Travel Office
notebook to Public Integrity (approximately 20 pages of
the 100-plus page document are provided).
August 30, 1994.--Public Integrity prosecutor
Goldberg writes the White House to ask why Harry
Thomason documents were withheld and asks for an
explanation by September 8, 1994.
September 8, 1994.--Neil Eggleston writes Goldberg
explaining why he failed to turn over all of the Harry
Thomason documents saying ``I sincerely apologize for
the oversight and hope that the delay in production of
these documents has not caused you any inconvenience *
* * please be advised that I have resigned effective
September 8, 1994.''
September 8, 1994.--Public Integrity Chief Lee Radek
writes a memo to Jack Keeney stating: ``At this point
we are not confident that the White House has produced
to us all documents in its possession relating to the
Thomason allegations * * * the White House's incomplete
production greatly concerns us because the integrity of
our review is entirely dependent upon securing all
relevant documents.''
September 13, 1994.--A Grand Jury subpoena for
documents from the White House relating to Harry
Thomason and Darnell Martens is served on the White
House with a September 30, 1994, due date.
September 30, 1994.--All Harry Thomason and Darnell
Martens records pursuant to the September 13, 1994,
subpoena are due to the Grand Jury. The White House
produced a ``PRIVILEGE LOG'' which identifies more than
120 documents that the White House refuses to turn over
to its own Justice Department in the course of a
criminal investigation involving activities at the
White House.
July 6, 1995.--White House provides complete Vince
Foster Travel Office file to the press.
July 28, 1995.--White House, in responding to Public
Integrity prosecutor Goldberg, sends more pages of
Vince Foster Travel Office notebook.
August 17, 1995.--Public Integrity prosecutor
Goldberg reviews more Vince Foster documents at the
White House with White House Associate Counsel Natalie
Williams.
November 4, 1995.--In the midst of the Billy Dale
trial, a White House Associate Counsel faxes a memo on
the Travel Office files that is dated 5/21/93. The memo
was from a member of the White House Records Management
staff who expressed concerns about the handling of the
documents in the Travel Office after the firings. The
memo had not been provided previously to Public
Integrity or to defendant Billy Dale, whose criminal
trial was under way.
November 6, 1995.--The White House sends additional
unknown documents to Public Integrity prosecutor
Goldberg.
In summary, it took the White House nearly six months to
allow Public Integrity prosecutors to see any documents related
to Harry Thomason and nearly a year to provide most of the
ICAP/GSA documents. The White House failed to provide the Vince
Foster Travel Office file in its entirety until July, 1995,
after it released the file to the press. Portions of the file
had been provided to Public Integrity in August, 1994. A
September, 1994, subpoena failed to produce this document in
its entirety.
The White House also failed to provide the Watkins ``soul
cleansing memo'' which was in Patsy Thomasson's files despite
numerous document requests and the September, 1994, subpoena.
At the very least, David Watkins, Matt Moore and Patsy
Thomasson were aware of the existence of this document
throughout the course of document requests.
Even after the September, 1994, subpoena from Public
Integrity, the White House produced a privilege log of 120-plus
documents it refused to provide to its own Justice Department
in the course of a criminal investigation. White House
production of documents to Public Integrity continued
throughout the course of the Billy Dale trial in October-
November, 1995. Since these documents belatedly were provided
to Public Integrity, they also belatedly were provided to the
defendant during his trial instead of before the trial began.
Public Integrity does not appear to have sought documents
directly from Harry Thomason until after the Billy Dale trial
ended and after both the Committee on Government Reform and
Oversight and the Independent Counsel had sought documents from
Mr. Thomason and Mr. Martens. New--never before known of--
documents regarding efforts by Mr. Thomason and Mr. Martens to
seek business for TRM were included in these productions to the
Justice Department after Billy Dale's trial.
Public Integrity's tolerance of White House foot-dragging
was in stark contrast to the aggressive pursuit of Billy Dale
and his family throughout the course of the criminal
investigation of Mr. Dale.
D. Committee Investigation
1. Ranking Member Clinger's efforts in the Minority, 1993-
94:
On June 16, 1993, Ranking Minority Member Bill Clinger
joined House Republican leadership in requesting documents and
answers to questions regarding the Travel Office. No
substantive response ever was provided.
August 6, 1993.--Chairman Clinger joins Republican
leadership in requesting information on the IRS
investigation and other Travel Office questions. (No
substantive response ever was provided.)
October 15, 1993.--Chairman Clinger writes Bernard
Nussbaum concerning the status of Harry Thomason as a
special government employee. (No substantive response
ever was provided.)
September 13, 1994.--Chairman Clinger requests that
the White House provide access to GAO documents
maintained at the White House. (Request never
provided--later memo shows White House Counsel Neil
Eggleston recommended turning down the request after
the Appropriations bill for the White House had
passed.)
September 20, 1994.--Chairman Clinger again requests
to review GAO documents at the White House.
October 1994.--Chairman Clinger issues a report
analyzing the GAO report on the Travel Office and
calling for hearings on the discrepancies in the GAO
work papers versus the actual report and other various
outstanding issues.
2. Chairman Clinger's Efforts in the Majority, 1995--
Present.
Once elected Chairman of the new Committee on Government
Reform and Oversight, Chairman Clinger announced that he would
continue the Committee's investigation into the White House
Travel Office matter. On June 14, 1995, the Committee makes
first document request to White House focusing on the White
House Management Review documents and documents related to all
of Harry Thomason's activities.
Throughout June and July, 1995.--White House fails to
produce any documents and requests that the Committee
hire security guards to protect any documents provided
to the Committee.
July 18, 1995.--White House produces the Vince Foster
Travel Office file several weeks after providing it to
the press.
August 2, 1995.--White House produces documents, 90%
of which previously have been made publicly available
(i.e. White House Management Review copies, GAO report
copies, press conference transcripts).
August 9, 1995.--White House produces more copies of
the Management Review from various files and several
miscellaneous documents.
August 28, 1995.--White House produces miscellaneous
handwritten notes by White House employees.
September 5, 1995.--White House produces a privilege
log identifying 900 pages of documents from the White
House Management Review.
September 13, 1995.--After negative press reaction to
White House privilege log, the White House produces
approximately 400 pages of interview notes from the 900
pages of Management Review documents.
September 18, 1995.--White House produces Bruce
Lindsey documents regarding efforts by Harry Thomason
and Darnell Martens to obtain GSA consulting contracts
for their business, TRM. These documents had not been
identified previously as documents that were being
withheld in the privilege log. (On this same day, Harry
Thomason cancels a previously scheduled interview with
Committee staff.)
On September 18, 1995, the Committee makes a second
document request to White House requesting all White House
Travel Office documents from all of the various investigations.
September 25, 1995.--White House produces more notes
from the White House Management Review.
September 28, 1995.--White House produces more
documents from Bruce Lindsey's office, Counsel's office
and Office of Administration.
October 4, 1995.--White House produces additional
White House Management Review documents.
October 5, 1995.--White House produces documents from
Neil Eggleston and Bill Kennedy.
October 13, 1995.--White House produces documents
from Counsel's office, Office of Administration and
Records Management.
October 17, 1995.--White House produces documents
from Cliff Sloan, Neil Eggleston and various White
House Management Review files.
October 24, 1995.--Committee holds first hearing on
the Travel Office matter.
October 26, 1995.--Billy Dale embezzlement trial
begins.
November 14, 1995.--White House produces more White
House Management Review documents, including lengthy
chronologies and drafts, but still does not provide the
legal analysis prepared by Beth Nolan concerning Harry
Thomason's status as a special government employee
(staff is allowed to review).
November 16, 1995.--Billy Dale acquitted.
December 19, 1995.--White House Counsel sends out
memo to all staff to respond to Committee document
requests.
December 22, 1995.--White House produces more
documents from Joel Klein, Office of Records
Management, Cliff Sloan, Patsy Thomasson and Counsel's
office.
December 29, 1995.--Watkins memo allegedly found at
White House.
January 3, 1996.--White House produces more documents
from various White House offices. Watkins memo is
produced.
On January 5, 1996, the Committee issues bipartisan
subpoenas to David Watkins and Harry Thomason for all
documents. On January 11, 1996, the Committee issues bipartisan
subpoenas to the White House for all outstanding documents and
to six individuals at White House. Responsive documents are due
to the Committee on January 22, 1996.
January 22, 1996.--White House produces documents
from Counsel's office, Chief of Staff's office, Office
of Administration and other offices.
January 29, 1996.--White House produces documents
from miscellaneous files including those of Patsy
Thomasson and Catherine Cornelius.
February 1, 1996.--White House Counsel sends out memo
to all staff requesting all documents responsive to the
January 11, 1996 subpoena due on January 22, 1996.
February 14, 1996.--White House produces documents
from various individual files.
On February 7, 1996, the Committee sends individual
subpoenas to more than 25 present and former White House staff
(due February 26, 1996). On February 15, 1996, the Committee
issues interrogatories to the First Lady due on February 29,
1996. A subsequent request for an additional three weeks to
respond was granted.
February 15, 1996.--White House distributes a memo to
present and former staff, volunteers and others who
received personal subpoenas requesting that they turn
over their documents to the White House and stating
that the White House in turn will produce relevant
documents to the Committee.
February 22, 1996.--White House produces documents
from various White House offices, including notes taken
by a White House intern monitoring the Billy Dale trial
and documents related to Billy Dale trial. White House
represents that responsive documents have been produced
and this should complete production but that there are
documents they believe are subject to privilege which
they are withholding. No privilege log is provided.
March 4, 1996.--White House produces additional
documents.
March 8, 1996.--White House produces documents from
Cliff Sloan, Todd Stern, Matt Moore, Dee Dee Myers,
Natalie Williams and Counsel's office.
March 15, 1996.--White House produces a small number
of documents including a never before produced letter
to the First Lady from David Watkins dated May 3,
1994--the day after the GAO Travel Office Report was
issued.
March 21, 1996.--First Lady provides responses to
Committee's interrogatories regarding the Travel
Office.
April 1, 1996.--White House produces additional
documents including the first e-mail produced by the
White House.
April 2, 1996.--White House produces additional
documents from Cliff Sloan's records and Office of
Personal Correspondence.
April 18, 1996.--White House produces documents from
Dee Dee Myers that were left out of earlier productions
(documents are notes from May, 1993, concerning the
Travel Office).
April 24, 1996.--White House produces several pages
of additional documents from Tom Castleton, David
Watkins and Information & Systems Technology.
May 9, 1996.--White House continues to withhold
documents related to the Travel Office matter. The
Committee votes to hold Messrs. Quinn, Watkins and
Moore in contempt of Congress.
INVOCATION OF PRIVILEGES
A. Assertion of executive privilege
1. Background
As has been fully recounted above, the Committee's
investigation of the Travel Office firings has been prolonged,
and essentially thwarted, by the tactics of delay, obfuscation,
and deliberate obstruction by the White House, and in
particular by the custodian of the documents sought, White
House Counsel John M. Quinn. Following failures to supply
documents responsive to its written requests of June 14, and
September 18, 1995, and the belated discovery of the Watkins
memo on December 29, 1995, the Committee, with full bipartisan
concurrence, issued subpoenas duces tecum to David Watkins on
January 5, 1996, Mr. John Quinn on January 11, 1996, 20
and to Matthew Moore on February 6, 1996, with return dates of
January 11, 1996, January 22, 1996, and February 26,
respectively.
---------------------------------------------------------------------------
\20\ The subpoena was directed to the ``Custodian of Records,
Executive Office of the President.'' White House Counsel John M. Quinn
has acknowledged, through actions and words, that he is the custodian
of the documents sought.
---------------------------------------------------------------------------
A protracted process of attempted accommodation ensued
which resulted in the discovery of previously requested or
subpoenaed material amongst the production of various groupings
of theretofore withheld documents. A rolling production of
records ensued which continued sporadically for more than three
months with no plausible explanation as to why documents were
not found and produced earlier, and without any agreement as to
a definitive timetable for the completion of the document
production. Indeed, the White House throughout this period
continually refused to supply the Committee with either an
index of the documents being withheld or a privilege log
specifically identifying documents for which presidential
privilege was being claimed. The White House Counsel's Office
also intervened with individuals with records subpoenaed by the
Committee to have them send documents in their possession to
the White House rather than directly to the Committee.
On May 2, 1996, Chairman Clinger advised White House
Counsel Quinn, Attorney General Janet Reno, and former White
House aides David Watkins and Matthew Moore that they were not
in compliance with the subpoenas previously served on them,
that the final return date for the covered material would be
close of business May 8, 1996, and that a meeting of the full
Committee was scheduled for 9:00 a.m. on May 9, 1996, at which
time a vote on a resolution to cite them for contempt of
Congress would be held if production of the records was not
forthcoming. There followed a series of written and oral
communications in which the White House adamantly refused to
modify its stance of non-compliance or to supply an unequivocal
constitutional basis for its position.
In a May 3 letter to Chairman Clinger, Mr. Quinn decried
the threat of a contempt citation as an election season
``political tactic.'' In a conversation between Mr. Quinn and
Chairman Clinger on the morning of May 3, the Chairman informed
Mr. Quinn that an impediment to the resolution of the dispute
was the Committee's inability to understand the nature of the
documents being withheld and suggested again that a privilege
log be supplied. That evening Mr. Quinn responded with a
telecopied letter to the Chairman broadly describing the
categories of documents being withheld:
1. Documents relating to ongoing grand jury
investigations by the Independent Counsel;
2. Documents created in connection with Congressional
hearings concerning the Travel Office matter; and
3. Certain specific confidential internal White House
Counsel Office documents, including ``setting'' notes,
certain other counsel votes, memoranda which contain
pure legal analysis, and personnel records which are of
the type protected by the Privacy Act.
There was no indication that any of these documents involve
communications to or from the President nor was there any
specific claim of presidential privilege, only an allusion to
the President's right to have the services of White House
counsel who can operate with sufficient confidentiality to
serve him.
Chairman Clinger responded by letter on May 6, explaining
that the expansion of the Committee's investigation was the
direct result of finding ``significant evidence that the White
House Counsel's Office was used to coordinate official
responses to investigative bodies and, too often, deny
investigative agencies with appropriate access to that
information'' which has raised serious questions ``[w]hether
these actions met the standards for improper, even criminal
conduct.'' The Chairman also made it clear that his May 2
letter rejected an earlier (February 15, 1996) offer of limited
access to certain documents conditioned on a surrender of the
right of access to all other documents, and reiterated the
firmness of the May 8 return date. Mr. Quinn responded that
same day expressing a desire to continue to work toward a
compromise solution, and offered to discuss making available
material related to the IRS and FBI inquiries.
The Chairman responded to this last communication the next
day, May 7, expressing appreciation for the offer of the IRS
and FBI records, but noting that the IRS document had been
previously promised, and that with respect to the FBI records,
it was the first time the Committee heard anything about the
White House withholding FBI records. Mr. Clinger also invited
the submission of a written assertion of presidential executive
privilege by 8:00 a.m., May 9, 1996, which would be transmitted
to all members of the Committee.
On May 7, counsel for David Watkins submitted a legal
memorandum claiming that drafts of the Watkins soul cleansing
memo in the possession of Matthew Moore are protected by the
attorney-client and work product privileges.
On May 8, Mr. Quinn, during a meeting with the Chairman and
the Ranking Minority Member, transmitted to the Committee a
memorandum from the Office of Legal Counsel, Department of
Justice, suggesting that the scheduled vote on the criminal
contempt citations be canceled and that legislation be passed
vesting jurisdiction in a federal district court to resolve the
subpoena compliance issue in a civil contempt proceeding before
the court. In a response to the Ranking Minority Member dated
that same day, the Chairman rejected the proposal as
unreasonable, but advised that he would delay the filing of the
Committee report on the contempt resolution to provide
additional time for the White House to comply.
On the morning of May 9, Mr. Quinn wrote the Chairman
expressing his view that the threat of criminal contempt is
``irresponsible'' and ``calculated not to find the truth but
instead to make a political point.'' He asserted that the
Committee's subpoenas were not ``sufficiently specific . . . to
establish the demonstrably critical showing that the courts
require in order for an oversight Committee to overcome the
executive branch's strong interest in confidential and candid
communications. Instead, you have unilaterally determined that
this President is not entitled to any confidential legal
communications and, therefore, any defense.'' Mr. Quinn then
informed the Chairman that the Attorney General had provided
the President with an opinion that ``executive privilege may be
properly asserted with respect to the entire set of White House
Counsel's Office documents currently being withheld from the
Committee, pending a final Presidential decision on the
matter,'' and that pursuant to that opinion the President had
directed him to invoke executive privilege ``as a protective
matter'' with respect to all the contested documents. The
letter concluded with a request that any action with respect to
the failure to comply with the subpoenas be held in abeyance
pending the President's decision whether to claim privilege
with respect to specific, individual documents.
By a vote of 27-19, the Committee on May 9 agreed to report
a resolution of contempt of Messrs. Quinn, Watkins and Moore to
the floor of the House. 21 The Chairman announced,
however, that he would delay transmitting the Committee report
to the floor to allow further opportunity for resolution of the
dispute. But as of the date of the transmittal of this report,
there has been no meaningful movement toward accommodation by
the White House nor has there been an official written
assertion of executive privilege by the President pursuant to
the procedures implemented by President Reagan on November 4,
1982, and adopted by President Clinton.
---------------------------------------------------------------------------
\21\ Prior to the Committee meeting, the Department of Justice
agreed to comply with demands for documents in its possession. The
portion of the contempt resolution directed at Attorney General Reno
therefore was dropped.
---------------------------------------------------------------------------
2. There has been no effective claim of executive privilege
by the President
In his May 2, 1996, letter to White House Counsel John M.
Quinn, Chairman Clinger unequivocally set the close of business
May 8 as the final return date for subpoena duces tecum issued
on January 11, 1996. The Chairman reiterated the finality of
that closure date in his subsequent correspondence with Mr.
Quinn on May 6 and 7 and in a meeting with him on May 8. Mr.
Quinn acknowledged his understanding of the due date and the
consequences of non-compliance and made it clear in his letters
of May 2 and 3 that his failure to comply would be intentional.
Thus, as of the close of business on May 8, upon his failure to
timely produce the subpoenaed documents admittedly in his
custody and control, Mr. Quinn's contempt was complete. 22
---------------------------------------------------------------------------
\22\ United States v. Bryan, 339 U.S. 323, 329-30 (1950) (``[W]hen
the government introduced evidence in this case that respondent validly
had been served with a lawful subpoena directing her to produce records
within her custody and control, and that on the day set out in subpoena
she intentionally failed to comply, it made a prima facie case of
willful default.'')
---------------------------------------------------------------------------
On May 7, Chairman Clinger invited Mr. Quinn to submit
either a written statement setting forth valid claims of
executive privilege signed by the President by 8:00 a.m. May 9.
Mr. Quinn accepted that invitation by a letter of that date
that related the view of Attorney General Reno that the
President presently could assert executive privilege for all
the subject documents until such time as he made final decision
on the matter. Mr. Quinn advised that he had been directed to
inform the Committee that the President was invoking executive
privilege ``as a protective matter, with respect to all
documents in the categories identified on page 3'' of the
letter,'' until such time as the President, after consultation
with the Attorney General, makes a final decision as to which
specific documents require a claim of executive privilege.'' On
the afternoon of May 9 the Committee voted to cite Mr. Quinn in
contempt. The Chairman, however, agreed to delay transmission
of the contempt report to the floor to allow for receipt of a
further communication from the President on the matter of the
privilege claim.
As of the date of the transmittal of this report, it has
been several weeks since the invocation of the ``protective''
privilege claim, there still has been no compliance with the
Committee's subpoena nor has there been an official
presidential invocation of executive privilege pursuant to the
procedures established by President Reagan on November 22,
1982, and adopted by President Clinton. Under those procedures,
if designated officials, including the Attorney General,
determine ``that the circumstances justify invocation of
executive privilege, the issue shall be presented to the
President by the counsel to the President, who will advise the
Department Head and the Attorney General of the President's
decision.'' If the President decides to invoke the privilege,
the decision is to be communicated to the congressional
committee requesting the information that the claim is made
with the specific approval of the President. In the past,
Presidents in fact have executed and signed claims of privilege
which have accompanied a detailed justification prepared by the
subpoenaed official.
Under these circumstances, it is the belief of the
Committee that it has waited a respectful period of time for
receipt of the appropriate presidential claim. The self-imposed
procedures for such claims are the Committee's only guide to
the President's intention and are presumably binding on him in
this situation.23 A ``protective'' claim cannot endure
indefinitely, stymying this Committee's investigation still
further. Mr. Quinn's and Attorney General Reno's letters
acknowledge that only the President himself can invoke the
privilege. He has not done so. The Committee therefore
determines that a reasonable period has elapsed for the
President to make his claim and that the privilege has been
waived.
---------------------------------------------------------------------------
\23\ See. e.g., Service v. Dulles, 354 U.S. 363, 382-89 (1957);
United States ex el Accardi v. Shaughnessy, 347 U.S. 260, 265-67
(1954); Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959).
---------------------------------------------------------------------------
3. Even if the protective claim of privilege were
effective, it is insufficient to overcome the
committee's lawful demand and need
In United States v. Nixon,24 the Supreme Court for the
first time recognized a constitutional basis for executive
privilege holding that ``the protection of the confidentiality
of Presidential communications has * * * constitutional
underpinnings.'' 25 But the Court unequivocally rejected
President Nixon's claim to an absolute privilege. Blanket
claims, it held, are unacceptable without further, discrete
justification, and then only the need to protect military,
national security, or foreign affairs secrets are to receive
deferential treatment in the face of a legitimate coordinate
branch demand.
---------------------------------------------------------------------------
\24\ 418 U.S. 683 (1973).
\25\ 418 U.S. at 705-06.
However, neither the doctrine of separation of
powers, nor the need for confidentiality of high-level
communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from
judicial process under all circumstances. The
President's need for complete candor and objectivity
from advisers calls for great deference from the
courts. However, when the privilege depends solely on
the broad, undifferentiated claim of public interest in
the confidentiality of such conversations, a
confrontation with other values arises. Absent a claim
of need to protect military, diplomatic, or sensitive
national security secrets, we find it difficult to
accept the argument that even the very important
interest in confidentiality of Presidential
communications is significantly diminished by
production of such material for in camera inspection
with all the protection that a district court will be
obliged to provide.
* * * * * * *
To read the Article II powers of the President as
providing an absolute privilege as against a subpoena
essential to enforcement of criminal statutes on no
more than a generalized claim of the public interest in
confidentiality of non-military and non-diplomatic
discussions would upset the constitutional balance of
`a workable government' and gravely impair the role of
the courts under Article III.26
---------------------------------------------------------------------------
\26\ Id. at 706, 707.
In the matter before this Committee, the President's
blanket, undifferentiated assertion of so-called ``protection''
privilege is unacceptable. There is not involved here any
matter involving the need to protect military, diplomatic, or
national security secrets. Nor is there any claim that what is
involved are confidential communications between the President
and his closest advisors. What is involved in this instance is
the legitimate exercise of this Committee's constitutional
prerogative to engage in effective oversight of the Executive
Branch, which the Supreme Court has acknowledged is at its peak
when the subject of investigation is alleged waste, fraud,
abuse, or maladministration within a government department or
even the White House. The investigative power, it has stated,
``comprehends probes into departments of the federal Government
to expose corruption, inefficiency, or waste.'' 27 ``[T]he
first Congresses,'' it continued, held ``inquiries dealing with
suggested corruption or mismanagement of government
officials'',28 and subsequently, in a series of
decisions,'' [t]he Court recognized the danger to effective and
honest conduct of the Government if the legislative power to
curb corruption in the Executive Branch unduly were hampered.''
29 Accordingly, the court stated, it recognizes ``the
power of the Congress to inquire into and publicize corruption,
maladministration, or inefficiencies in the agencies of
Government.'' 30
---------------------------------------------------------------------------
\27\ 354 U.S. at 187.
\28\ Id. at 182.
\29\ Id. at 194-95.
\30\ Id. at 200 n.33. See also, McGrain v. Daugherty, 272 U.S. 135,
151, 177(1927); Barenblatt v. United States, 360 U.S. 109,111 (1960);
Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504 n. 15
(1975).
---------------------------------------------------------------------------
As the Committee has gathered documents during the course
of this investigation, a record has developed demonstrating
that numerous previous Travel Office investigations were
stymied by an unusual amount of resistance, delay, and denial
in the production of necessary documents. Many congressional
investigations, including this one, attempt to determine not
only why certain activities occurred but why an administration
has not acted or why they have delayed certain actions. From
the first days of the Travel Office debacle, the President
committed to cooperate. However, as discussed supra, even
Justice Department officials have indicated that they were met
with any unusual lack of candor and cooperation from White
House officials. The dilatory tactics engaged in by the White
House in producing documents for various investigations into
the Travel Office and related matters have wasted hundreds of
hours in staff time of the GAO and various divisions of the
Justice Department. The Committee now seeks documents to
determine why the White House engaged in such conduct and why
such mal-administration occurred. Historically, such documents
have been provided congressional committees, including such
production by this Administration.31
---------------------------------------------------------------------------
\31\ See Footnote 11. During a document dispute with the House
Commerce Committee, then chaired by Rep. John D. Dingell, President
Clinton's Justice Department turned over law enforcement sensitive
documents to Congress after at first arguing that they were protected
deliberative documents.
---------------------------------------------------------------------------
The Nixon case, of course, did not involve the assertion of
executive privilege in response to a congressional demand for
information,32 but under the circumstances of this
situation the Committee is confident that a court will reject
the President's blanket claim of privilege in the face of this
Committee's proper exercise of its oversight authority, its
patience in pursuing the subject documents, and its palpable
need for the documents it has sought. The Executive's conduct
in the course of this matter can be seen as an affront to the
Committee and the Congress. We reject the claim of privilege
presented.
---------------------------------------------------------------------------
\32\ 418 U.S. at 712 n. 19 (``We are not here concerned with the
balance between the President's generalized interest in confidentiality
in and congressional demands for information.'').
---------------------------------------------------------------------------
B. Claims of attorney-client and work product privilege
1. Background
On January 3, 1996, the White House produced an undated
nine-page typewritten ``draft'' memorandum by David Watkins in
which he detailed his version of the ``surrounding
circumstances and the pressures'' that led to the firing of the
seven Travel Office employees in May 1993. Described as a
``soul cleansing,'' it was intended to correct ``inaccuracies
or erroneous conclusions'' contained in the internal White
House Travel Office Management Review. The memo was found in
late December 1995 amongst the files of Patsy Thomasson, then
the Director of the Office of Administration at the White
House, and was turned over to the Committee in belated response
to previous document demands. No privilege was claimed with
respect to the self-styled ``soul cleansing'' memo.
On January 5, 1996, the Committee issued a subpoena duces
tecum to Mr. Watkins for documents and records regarding the
White House Travel Office matter. On January 15, Watkins'
attorney Robert Mathias provided a privilege log indicating
that a November 15, 1993, memorandum from Watkins to his
counsel, as well as drafts and notes regarding the White House
management review of Travel Office firings, were being withheld
on grounds of attorney-client and work product privilege.
On February 7, the Committee issued a subpoena duces tecum
to Matthew Moore, a former attorney in the Office of Management
and Administration for any records related to the White House
Travel matter, including ``[a]ll records relating to the
`Watkins memo' found in Patsy Thomasson's files on December 29,
1995, and produced to the Committee on January 3, 1996, and all
records of any contacts, communications, or meetings related to
the findings of this memo.'' On February 26 Mr. Moore responded
that he would not turn over covered documents in his possession
for which Mr. Watkins had asserted claims of privilege. The
documents were identified as ``undated draft memorandum from
David Watkins re: response to internal travel office review.''
On May 7, 1996, Mr. Watkins' attorney provided the
Committee with a letter explaining the factual and legal basis
for his claims of privilege. Briefly summarized, it states that
in September 1993, Watkins began preparing a document
responding to the various conclusions of the internal White
House Travel Office Management Review. The document went
through many iterations--at least five and perhaps as many as
10 according to Moore--between early September and November 15
when it was finalized as a ``Memorandum for Counsel.'' An
unspecified number of the early drafts of the document were
intended as a ``potential'' memo to then-White House Chief of
Staff McLarty. Watkins enlisted the assistance of Matthew
Moore, an attorney in the Office of Management and
Administration, which he headed. Moore had graduated law school
and passed the bar in 1992 and began work for Watkins in
February of 1993.
Moore is claimed by Watkins said to have assisted Watkins
in the preparation of the memo in two ways. First, he acted as
a ``scribe,'' typing many of the drafts, and performing an
editing function. Second, he served to provide a potential
privilege cloak for the documents: ``Mr. Watkins discussed with
Mr. Moore, a lawyer, how to prepare the Memorandum for Counsel
so that it would appropriately be considered privileged and
confidential.'' The memo, it is asserted, ``was not prepared as
part of the business of that office,'' and was written in
Watkins' ``good faith belief that the Memorandum for Counsel
would be kept privileged and confidential and that Mr. Moore's
assistance, and status as an attorney, would help preserve the
privileged and confidential status of the document.'' Copies of
the draft memorandum were sent to Watkins' private attorney, at
the time Ty Cobb, for his review and advice. Watkins kept
drafts of the memos in his ``Ty Cobb file.'' The ``content'' of
the drafts being withheld by Moore is claimed to be ``the same
as one of the drafts included within Mr. Watkins' January 15,
1996, privilege log.''
Mr. Moore was deposed before the Committee on March 26,
1996. He testified that ``I do not personally believe I was
ever in or--ever formed a personal representation or ever
served as his personal attorney.'' He never was paid for any
personal representation. In his official capacity in the Office
of Management and Administration, he would be sought out by
Watkins for legal advice which Moore would secure by
``confer[ring]] with the White House Counsel's Office'' and
then conveying answers to Watkins. Moore's principal function
was to respond to congressional requests, such as requests for
further information from Members made at congressional
hearings.
Mr. Moore further testified that Patsy Thomasson was
provided a copy of the ``soul cleansing'' memo and that he
discussed the memo with Thomasson personally and that the memo
was discussed at a meeting attended by Watkins, Moore and
Thomasson.33
---------------------------------------------------------------------------
\33\ See deposition of Matthew Moore, pages 70-72.
---------------------------------------------------------------------------
Question. Did you discuss either Deposition No. 4, Watkins
memo, or any drafts with any other person other than David
Watkins?
Answer. Yes.
Question. Can you please tell us who and approximately when
you would have had those discussions?
Answer. Patsy Thomasson, and approximately between
September and November; certainly in September, 1993.
Question. Would that have been during the period where it
was being drafted and revised?
Answer. That's my recollection.
Question. Can you please tell us what you discussed with
Patsy? Okay. First, I would ask you to discuss what you
discussed with Patsy outside the presence of Mr. Watkins.
Answer. I don't recall specific discussions with her edits
or changes to the document. However, I do recall one very brief
conversation in which we very briefly discussed the
advisability of the preparation of this memo, Deposition
Exhibit No. 4, the Watkins memo.
Question. Can you just tell us in a little bit more detail
what best you remember was said to Ms. Thomasson or by Ms.
Thomasson?
Answer. Basically we communicated to each other our view
that the preparation of the memo was inadvisable.
Question. How were these discussions held?
Answer. Can you----
Question. Were they in person?
Answer. Yes.
Question. Did you ever give her a copy of the Watkins memo
or any of the other versions?
Answer. Right. I don't really recall giving her a copy. I
usually gave the copies straight to David.
Question. Did you have any discussions about the Watkins
memo----
Answer. Can I go back just to say I may have given her a
copy. I just don't recall.
Question. Did you ever have any discussions about the
Watkins memo with Patsy Thomasson in the presence of David
Watkins? And by ``Watkins memo, I am going to be referring to
meaning the memo as well as the drafts.
Answer. I believe so, yes.
Patsy Thomasson, the Director of the White House Office of
Administration during the period in which the Watkins memo was
evolving, was deposed by the Committee on April 22, 1996. She
reported to Watkins and was not an attorney. She acknowledged
that she was provided with a copy of the ``soul cleansing''
memo by Watkins at the time it was drafted and was asked to
review it and provide edits and comments. She specifically
advised Watkins that she ``didn't think it was a good idea for
him to write a memorandum with regard to the Travel Office.''
In testimony before the Committee on January 17, 1996, Mr.
Watkins acknowledged that he initiated the preparation of the
``soul cleansing'' memo, that Moore acted as a ``scribe'', and
that the memo contained truthful, accurate facts and
observations. At no point in his testimony did he claim any
intent to cloak that memo in privilege. The hearing record also
reveals that after its discovery in Ms. Thomasson's files, the
memo was distributed throughout the White House before being
transmitted to the Committee, and then was released to the
press by the White House.34
---------------------------------------------------------------------------
\34\ Hearing, ``White House Travel Office--Day Two,'' before the
House Committee on Government Reform and Oversight, 104th Cong., 2d
sess. 13-14, 17, 25-26 (1996) (Travel Office Hearing).
---------------------------------------------------------------------------
2. Assertions of claims of attorney-client and work product
before congressional committees
It is well-established by congressional practice that
acceptance of a claim of attorney-client or work product
privilege before a committee rests in the sound discretion of
that committee. Neither can be claimed as a matter of right by
a witness, and a committee can deny them simply because it
believes it needs the information sought to be protected to
accomplish its legislative functions.35
---------------------------------------------------------------------------
\35\ See Morton Rosenberg, ``Investigative Oversight: An
Introduction to the Law, Practice, and Procedure of Congressional
Inquiry,'' CRS Report No. 95-464A, at 43 (Apr. 7, 1995).
---------------------------------------------------------------------------
In actual practice, all committees that have denied claims
of privilege have engaged in a process of weighing
considerations of legislative need, public policy, and the
statutory duties of congressional committees to engage in
continuous oversight of the application, administration and
execution of the laws that fall within its jurisdiction,
against any possible injury to the witness.36 In the
particular circumstances of any situation, a committee may
consider and evaluate the strength of a claimant's assertion in
light of the pertinency of the documents or information sought
to the subject of the investigation, the practical
unavailability of the documents or information from any other
source, the possible unavailability of the privilege to the
claimant if it were to be raised in a judicial forum, and a
committee's assessment of the cooperation of the witnesses in
the matter, among other considerations. A valid claim of
privilege, free of any taint of waiver, exception or other
mitigating circumstance, would merit substantial weight. But
any serious doubt as to the validity of the asserted claim
would diminish its compelling character.
---------------------------------------------------------------------------
\36\ See, e.g., ``Refusal of William H. Kennedy, III, To Produce
Notes Subpoenaed By The Special Committee to Investigate Whitewater
Development Corporation and Related Matters,'' Sen. Rept. No. 104-191,
104th Cong. 1st Sess. 9-19 (1995); ``Proceedings Against Ralph
Bernstein and Joseph Bernstein,'' H. Rept. No. 99-462, 99th Cong. 2d
Sess. 13, 14 (1986); Hearings, ``International Uranium Control,''
Before the Subcommittee on Oversight and Investigations, House
Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess.
Vol. 1, 60, 123 (1977).
---------------------------------------------------------------------------
Moreover, the conclusion that recognition of non-
constitutionally based privileges is a matter of congressional
discretion is consistent with both traditional British
parliamentary and the Congress' historical practice.37
---------------------------------------------------------------------------
\37\ See Rosenberg, supra, at 44-49.
---------------------------------------------------------------------------
The legal basis for Congress' prerogative in this area is
premised upon its inherent constitutional prerogative to
investigate which has been long recognized by the Supreme Court
as extremely broad and encompassing, and which is at its peak
when the subject is fraud, abuse, or maladministration within a
government department.38 It is also founded on the
Constitution's affirmative grant to each House of the authority
to establish its own rules of procedure.39 The attorney-
client privilege is, on the other hand, a judge-made exception
to the normal principle of full disclosure in the adversary
process which is to be narrowly construed and has been confined
to the judicial forum.40 The privilege has been deemed
subject to a variety of exceptions, including communications
between a client and attorney for the purpose of committing a
crime or perpetrating a fraud or other obstruction of law at
some future time, and to a strict standard of waiver.41
See generally, Paul R. Rice, Attorney-Client Privilege in the
United States, chaps. 8:2-8:15 and 9 (1993)(Rice).
---------------------------------------------------------------------------
\38\ McGrain v. Daugherty, 272 U.S. 135, 177 (1926); Watkins v.
United States, 354 U.S. 178, 187 (1957); Eastland v. United States
Servicemen's Fund, 421 U.S. 491, 504 n.15 (1975).
\39\ See U.S. Constit., Art. I, sec. 5, cl. 2.
\40\ Westinghouse Electric Corporation v. Republic of the
Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991).
\41\ However, at least two federal circuits have held that
disclosures to congressional committees do not waive claims of
privilege elsewhere. See, Florida House of Representatives v. U.S.
Dept. of Commerce, 961 F.2d 941, 946 (11th Cir. 1992); Murphy v.
Department of the Army, 613 F.2d 1151, 1155 (D.C. Cir. 1979). Also see
generally, Paul R. Rice, Attorney-Client Privilege in the United
States, chaps. 8:2-8:15 and 9 (1993)(Rice).
---------------------------------------------------------------------------
Further, the work product privilege,42 another judge-
made evidentiary exception, has always been recognized as a
qualified privilege which may be overcome by a sufficient
showing of need. The Supreme Court indicated, in the very case
in which it created the doctrine, that ``[w]e do not mean to
say that all [ ] materials obtained or prepared with an eye
toward litigation are necessarily free from discovery in all
cases.'' 43 Thus the courts repeatedly have held that the
work product privilege is not absolute, but rather is only a
qualified protection against disclosure,44 and that the
burden is on the party asserting it to establish its
applicability.45
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\42\ Some courts refuse to call the doctrine a privilege at all. In
City of Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 483,
485 (E.D. Pa. 1962), mandamus and prohibition denied sub nom. In
General Electric Corp. v. Kirpatrick, 312 F.2d 742 (3d Cir. 1962), the
court stated that the work product principle ``is not a privilege at
all; it is merely a requirement that very good cause be shown if the
disclosure is made in the course of a lawyer's preparation of a case.''
\43\ Hickman v. Taylor, 329 U.S. 495, 511 (1974).
\44\ See, e.g., Central National Insurance Co. v. Medical
Protective Co. of Forth Worth, 107 F.R.D. 393, 395 (E.D. Mo. 1985);
Chepanno v. Champion International Corp., 104 F.R.D. 395, 396 (D. Ore.
1984).
\45\ Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir.
1984); Nutmeg Insurance Co. v. Atwell Vogel & Sterling, 120 F.R.D. 504,
510 (W.D. La 1988).
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3. The Watkins Objections to the Subpoena
Counsel for Watkins has interposed three objections to the
Committee's subpoenas for the drafts of the Watkins' memo: (1)
the attorney-client privilege; (2) the work product doctrine;
(3) and the risk that production would be held to be a waiver
of the foregoing claimed privileges. The waiver issue will be
addressed first before turning the privilege claims.
a. Compliance with a Congressional Subpoena Would Not
Affect a General Waiver of the Attorney-Client or Work Product
Privileges.
Counsel's concern that production of the subpoenaed drafts
would result in a broad waiver of his client's common law
privileges is without substantial foundation. The courts have
long recognized that disclosure of documents in response to a
court order is compelled, not voluntary, and, therefore, such
disclosure does not function as a waiver of privilege.46
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\46\ See, e.g., Westinghouse Electric Corp. v. Republic of the
Phillippines, 951 F.2d 1414, 1427 n. 14 (3d Cir. 1991) (Holding that if
the party that first invoked, but then withdrew its assertion of the
privilege, and instead ``continued to object to the subpoena and
produced the documents only after being ordered to do so, we would not
consider its disclosure of those documents would be voluntary.'').
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Disclosure to Congress pursuant to a subpoena issued in the
course of a legitimate investigation of the Executive Branch
would similarly not affect a waiver. Two circuits and two
district courts expressly have recognized in the context of
public requests for information under the Freedom of
Information Act (FOIA) that, in light of Congress' superior
rights to information, disclosure to Congress of arguably
privileged materials does not result in a waiver of any
privilege under FOIA. In Florida House of Representatives v.
U.S. Department of Commerce,47 the appeals court held that
because the FOIA exemption for ``deliberative process''
material may not be exercised against Congress, efforts to
resist such a subpoena on grounds of privilege would be
fruitless. Because the subpoena could not be resisted
successfully, the court reasoned, providing the material to the
Congress would not trigger a waiver of the privilege.
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\47\ 961 F. 2d 941, 946 (11th Cir.), cert. dismissed, 113 S. Ct.
446 (1992).
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The claim of waiver previously was considered and rejected
by the D.C. Circuit Court of Appeals in Murphy v. Department of
the Army.48 Murphy involved a request for a document under
the Freedom of Information Act (FOIA) 49 from the
Department of the Army which had been disclosed to a
congressman. The requestor argued that even if the document
fell within the deliberative process exemption of FOIA,50
the disclosure constituted a waiver of the FOIA privilege. The
appeals court rejected the argument, holding that with respect
to the ``doctrine of waiver,'' that ``it is evident that the
disclosure to the Congress could not have had that
consequence.'' Congress, it stated, long has ``carve[d] out for
itself a special right of access to privileged information not
shared by others.'' 51 If ``every disclosure to Congress
would be tantamount to a waiver of all privileges and
exemptions, executive agencies inevitably would become more
cautious in furnishing sensitive information to the legislative
branch--a development at odds with public policy which
encourages broad congressional access to governmental
information.'' 52 The court concluded:
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\48\ 613 F.2d 1151, 1155 (D.C. Cir. 1979).
\49\ 5 U.S.C. 552 (1994).
\50\ 5 U.S.C. 552 (b)(5).
\51\ 617 F.2d at 1155-56.
\52\ Id., at 1156.
For these reasons, we conclude that, to the extent that
Congress has reserved to itself in Section 552(c)[now, 552(d)]
the right to receive information not available to the general
public, and actually does receive such information pursuant to
that section (whether in the form of documents or otherwise),
no waiver occurs of the privileges and exemptions which are
available to the executive branch under the FOIA with respect
to the public at large.53
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\53\ Id. See also, In re Sunrise Securities Litigation, 109 Bankr.
658, 1990 U.S. Dist. Lexis 168, U.S.D.C. E.D.Pa., Jan. 9, 1990 (same);
In re Consolidated Litigation Concerning International Harvester's
Disposition of Wisconsin Steel, 9 E.B.C. 1929, 1987 U.S. Dist. Lexis
10912, U.S.D.C. N.D. Ill. (same). Compare FTC v. Owings-Corning
Fiberglass Corp., 626 F.2d 966, 970 (D.C. Cir. 1980) (release to a
congressional requestor is not deemed disclosure to public generally);
Exxon Corp. v. FTC, 589 F.2d 582, 589 (D.C. Cir. 1978), cert. denied,
441 U.S. 943 (1979) (same); Ashland Oil Co., Inc. v. FTC, 548 F.2d 977,
979 (D.C. Cir. 1979) (same).
The concern raised by counsel for Watkins that disclosure
would result in a waiver of privilege in future litigation is,
therefore, wholly unwarranted in light of the compulsory and
irresistible nature of the Committee's demands.54 We turn
now to consideration of the privilege objections to the
Committee's subpoenas.
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\54\ It is to be noted that the American Bar Association Model Code
of Professional Responsibility provides that ``A lawyer may reveal: * *
* [c]onfidences or secrets when * * * required by law or court order.''
DR 4-101 (c)(2). See also, Meyerhoff v. Empire Fire & Marine Ins. Co.,
497 F.2d 1190, 1195 (2d Cir. 1974); Application of Solomon Friend, 411
F. Supp. 776, 777 note (SDNY 1985), cases holding that an attorney's
obligation of confidentiality is waived if it is necessary to defend
against accusations of wrongful conduct.
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b. The attorney-client privilege does not shield the
various versions of the Watkins memo from disclosure to this
Committee.
As has been indicated above, it is within the sound
discretion of Congress to decide whether to accept a claim of
common law testimonial privilege. Unlike some other
testimonial, privileges such as the privilege against
compulsory self-incrimination, neither the attorney-client
privilege nor the work product doctrine is rooted in the
Constitution.55 Moreover, congressional committees need
not recognize claims of privilege in the same manner as would a
court of law. A congressional committee must make its own
determination regarding the propriety of recognizing the
privilege in the course of an investigation taking into account
the House's constitutionally-based responsibility to oversee
the activities of the Executive Branch. In the circumstances of
the situation before us, it is the Committee's considered
judgment that Mr. Watkins' claims of privilege are not well-
founded.
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\55\ See Mannes v. Meyers, 419 U.S. 449, 466 n. 15 (1975).
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b.1 Watkins has not established that he entered into an
attorney- client relationship with Moore.
The burden of establishing the existence of the attorney-
client privilege rests with the party asserting the privilege.
In re Grand Jury Investigation No. 83-2-35.56 Blanket
assertions of the privilege have been deemed ``unacceptable,''
SEC v. Gulf & Western Industries, Inc.,57 and are
disfavored strongly.58 The proponent conclusively must
prove each element of the privilege, to wit: (1) a
communication, (2) made in confidence and preserved, (3) to an
attorney acting in his professional capacity, (4) by a client,
(5) for the purpose of seeking or obtaining legal
advice.59 But the mere fact that an individual
communicates with an attorney does not make his communication
privileged.60
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\56\ 737 F.2d 447, 450-51 (6th Cir. 1983).
\57\ 518 F. Supp. 675, 682 (D.D.C. 1981).
\58\ In re Grand Jury Investigation No. 83-2-35, supra, 737 F.2d at
454.
\59\ See, e.g., 8 Wigmore, Evidence, Sec. 2292, at 554 (McNaughton
rev. ed. 1964); United States v. United Shoe Machinery Corp., 89 F.
Supp. 357, 358-59 (D. Mass. 1950).
\60\ See, e.g., United States v. Costanzo, 625 F.2d 465, 468 (3d
Cir. 1980) (``[I]t is true that `[a] communication is not privileged
simply because it is made by or to a person who happens to be a
lawyer'.''), cert. denied 472 U.S. 1017 (1985); Diversified Industries,
Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977) (``A communication
is not privileged simply because it is made by or to a person who
happens to be a lawyer''); United States v. Tedder, 801 F.2d 1437,
1442-43 (4th Cir. 1986) (Friend's communications with attorney held not
privileged despite fact that friend was both a lawyer and colleague in
same firm when he spoke to her not as a professional legal advisor, did
not seek legal advice from her, and did not expect the communications
to remain confidential.).
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The case law consistently has emphasized that one of the
essential elements of the attorney-client privilege is that the
attorney be acting as an attorney and that the communication be
made for the purpose of securing legal services. The privilege
therefore does not attach to incidental legal advice given by
an attorney acting outside the scope of his role as attorney.
```Acting as a lawyer' encompasses the whole orbit of legal
functions. When he acts as an advisor, the attorney must give
predominantly legal advice to retain his client's privilege of
non-disclosure, not solely, or even largely, business advice.''
61
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\61\ Zenith Radio Corp. v. Radio Corp. of America, 121 F.Supp. 792,
794 (D. Del. 1954) (emphasis supplied).
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In order to ascertain whether an attorney is acting in a
legal or business advisory capacity, the courts have held it
proper to question either the client or the attorney regarding
the general nature of the attorney's services to his client,
the scope of his authority as agent and the substance of
matters which the attorney, as agent, is authorized to pass
along to third parties.62 Indeed, invocation of the
privilege may be predicated on revealing facts tending to
establish the existence of an attorney-client relation.
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\62\ Colton v. U.S., 306 F.2d 633, 636, 638 (2d Cir. 1962); U.S. v.
Tellier, 255 F.2d 441 (2d Cir. 1958); J.P. Foley & Co., Inc. v.
Vanderbilt, 65 FRD 523, 526-27 (S.D.N.Y. 1974).
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Finally, the client must intend that his communications
with his lawyer are confidential and the confidentiality must
be maintained subsequently.63
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\63\ Rice, supra, at 6:1, 6:2, 6:30, 9:1.
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Because of the privilege's inhibitory effect on the truth-
finding process and its impairment of the public's ``right to
every man's evidence,'' 64 modern liberal discovery rules
have taken a narrow view of the privilege.65 This tendency
toward limiting the privilege is manifested most clearly in the
strict standard of waiver.66 Thus the voluntary disclosure
of privileged information, whether by the client or the
attorney with the client's consent, waives the privilege
67 because it destroys the confidentiality of a
communication and thereby undermines the justification for
preventing compelled disclosures.68 Waiver need not be
express,69 nor is it necessary that the client waive the
privilege knowingly.70 Waiver may be evidenced by word or
act,71 but may be inferred from a failure to speak or act
when words or action would be necessary to preserve
confidentiality.72 Courts regularly hold that the
privilege is waived as to the material disclosed when the
client or his attorney deliberately discloses the contents of a
privileged communication, such as when answering
interrogatories, testifying in court or at examination before
trial, submitting affidavits or pleadings to the Court, or in
transacting business with a third party.73
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\64\ 8 J. Wigmore Sec. 2192, at 70.
\65\ Magida ex rel. Vilcon Detinning Co. v. Continental Can Co., 12
F.R.D. 74, 77 (S.D.N.Y. 1951).
\66\ See, e.g., Permian Corp. v. United States, 665 F.2d 1214, 1219
(D.C. Cir. 1981); United States v. AT & T Co., 642 F.2d 1285, 1299
(D.C. Cir. 1980).
\67\ 8 J. Wigmore, Sec. 2327, at 632-39.
\68\ United States v. AT & T Co., 642 F.2d 1285, 1299 (D.C. Cir.
1980) ``[t]he mere showing of voluntary disclosure will generally
suffice to show waiver of the attorney-client privilege.''); In re
Horowitz, 482 F.2d 72, 82 (2d Cir.) cert. denied, 414 U.S. 867 (1973).
\69\ Blackburn v. Crawford, 70 U.S. (3 Wall.) 175, 194 (1965).
\70\ In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672
(D.C. Cir.), cert. denied, 444 U.S. 915 (1979).
\71\ Magida ex rel. Vulcan Determining Co. v. Continental Can Co.,
12 F.R.D. 74, 77 (S.D.N.Y. 1951).
\72\ Id.
\73\ 8 J. Wigmore, Sec. 2327.
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Furthermore, the courts have held that less than full
disclosure often will cause a waiver, not only as to disclosed
communications, but also as to communications relating to the
same subject matter that were not disclosed themselves.74
By partial disclosure, the client may be waiving voluntarily
the privilege as to that which he considers favorable to his
position, but attempting to invoke the privilege as to the
remaining material, which he considers unfavorable.75
Selective assertion or disclosure usually involves a material
issue in the proceeding, and there is a great likelihood that
the information disclosed is false or intended to mislead the
other party.76 Thus, pleading an ``advice of counsel''
defense, which puts the attorney's advice in issue,77 has
been held to waive the privilege as to all communications
relating to that advice. The rationale for the subject matter
waiver rule is one of fairness. Professor Wigmore has stated
the principle as follows: ``[W]hen [the client's] conduct
touches a certain point of disclosure, fairness requires that
his privilege shall cease whether he intended that result or
not. He cannot be allowed, after disclosing as much as he
pleases, to withhold the remainder. It therefore is designed to
prevent the client from using the attorney-client privilege
offensively, as an additional weapon.''
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\74\ Teachers Ins. & Annuity Assn. of America v. Shamrock
Broadcasting Co., 521 F.Supp. 638, 641 (S.D.N.Y. 1981); R.J. Hereley &
Sons Co. v. Stotler & Co., 87 F.R.D. 358, 359 (N.D. Ill. 1980);
Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 156 (D. Del. 1977);
Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1161-62
(D.S.C. 1974).
\75\ Perrigrion v. Bergen Brunswig Corp., 77 F.R.D. 455, 461 (N.D.
Calif. 1978); Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 156 (D.
Eel. 1977); Duplan v. Deering Milliken, 397 F.Supp. 1146, 1161-62
(D.S.C. 1974); AT & T v. United Tel. Co., 60 F.R.D. 177, 188-86 (M.D.
Gla. 1973).
\76\ United States v. Aronoff, 466 F.Supp. 855, 862 (S.D.N.Y.
1979).
\77\ E.g., United States v. Woodall, 438 F.2d 1317, 1323-24 (5th
Cir. 1970), cert. denied, 403 U.S. 933 (1971); Transworld Airlines v.
Hughes, 332 F.2d 602, 615 (2d Cir. 1964), cert. dismissed, 380 U.S. 248
(1965); Barr Marine Prods. v. Borg-Warner Corp., 84 F.R.D. 631, 635
(E.D. Pa. 1979); Hangards, Inc. v. Johnson & Johnson, 413 F.Supp. 926,
929 (N.D. Calif. 1976).
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The courts also have limited severely the attorney-client
privilege through the development of an implied waiver
doctrine. Thus, where a client shares his attorney-client
communications with a third party, the communications between
attorney and client are no longer strictly ``confidential,''
and the client has waived his privilege over them. 78 Even
if the client attempts to keep communications confidential by
having the third party agree not to disclose the communications
to anyone else, the courts will still consider
``confidentiality'' between attorney and client breached and
the communication no longer privileged. 79 Courts have
applied this concept of confidentiality narrowly to prevent
corporations from sharing an attorney-client communication with
an ally and then shielding the communication from a grand jury
or adversary. 80 As a general rule, courts also apply the
waiver rule to disclosures made to government agencies. 81
Thus a person or corporation who voluntarily discloses
confidential attorney-client communications to a government
agency loses the right to later assert privilege for those
communications.
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\78\ See, e.g., United States v. El Paso Co., 682 F.2d 530, 539,
540 (5th Cir. 1982) (Creating documents with knowledge that independent
accountants may need access to them to complete an audit waives
privilege.); Permian Corp. v. United states, 665 F.2d 1214, 1219 (D.C.
Cir. 1981) (Disclosure of documents to SEC waives privilege); United
States v. Miller, 660 F.2d 563, 567-68 (5th Cir. 1981) (Previous
delivery of accounting books to IRS vitiates privilege.); United States
v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461, 464 (E.D. Mich. 1954)
(Privilege waived on disclosure to Justice Department).
\79\ 8 J. Wigmore, Evidence, Sec. 2367 at 636 (McNaughton rev. ed.
1961).
\80\ Permian Corp. v. U.S., 665 F.2d 1214, 1221-22 (D.C. Cir.
1981).
\81\ See, e.g., United States v. Miller, 660 F.2d 563, 567-68 (5th
Cir. 1981) (disclosure to IRS); In re Grand Jury Investigation of Ocean
Transp., 604 F.2d 672 (D.C. Cir. 1979), cert. denied, 444 U.S. 915
(1979) (to Antitrust Div. of Dept. of Justice); Donovan v. Fitzsimmons,
90 F.R.D. 583, 585 (N.D. Ill. 1981) (to Dept. of Labor); Litton
Systems, Inc. v. American Tel. & Tel. Co., 27 Fed. R. Serv. 2d
(Callaghan) 819 (S.D.N.Y. 1979) (to district attorney); In re Penn.
Cent. Commercial Paper Litig., 61 F.R.D. 453, 462-64 (S.D.N.Y. 1973)
(to SEC); D'Ippolito v. Cities Serv. Co., 39 F.R.D. 610 (S.D.N.Y. 1965)
(to Antitrust Div. of Dept. of Justice).
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While some lower courts have adopted a ``limited waiver''
rule, which allows corporations to share their confidential
attorney-client communications with agencies such as the SEC
without having to waive the privileged status of these
documents against other parties, 82 it is a distinctly
minority view. The prevailing view, enunciated in the most
recent decisions of the Second, 83 Fourth, 84 and
District of Columbia Circuits, 85 holds that ``if a client
communicates information to his attorney with the understanding
that the information will be revealed to others, that
information, as well as `the details underlying the data which
was to be published,' will not enjoy the privilege.'' 86
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\82\ See, e.g., Diversified Industries v. Meredith, 572 F.2d 596,
611 (8th Cir. 1977); Byrnes v. IDS Realty Trust Co., 85 F.R.D. 679,
687-89 (S.D.N.Y. 1980); In re Grand Jury Subpoena, 478 F.Supp. 368,
372-73 (E.D. Wisc. 1979).
\83\ In re John Doe Corporation, 675 F.2d 482 (2d Cir. 1982).
\84\ In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988);
United States v. (Under Seal), 748 F.2d 871, 875 (4th Cir. 1984); In re
Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984).
\85\ In re Subpoena Duces Tecum, 738 F.2d 1367 (D.C. Cir. 1984); In
re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982); Permian Corp. v. United
States, 665 F.2d 1214 (D.C. Cir. 1981).
\86\ In re Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir.
1988).
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The appeals court in In re Sealed Case explained the
rationale and scope of the implied waiver rule as follows:
The implied waiver doctrine has been more fully
developed, however, in the context of the attorney-
client privilege. Any disclosure inconsistent with
maintaining the confidential nature of the attorney
client relationship waives the privilege. When a party
reveals a part of a privileged communication in order
to gain an advantage in litigation, it waives the
privilege as to all other communications relating to
the same subject matter because ``the privilege of
secret consultation is intended only as an incidental
means of defense and not as an independent means of
attack, and to use it in the latter character is to
abandon it in the former.''
A simple principle unites the various applications of
the implied waiver doctrine. Courts need not allow a
claim of privilege when the party claiming the
privilege seeks to use it in a way that is not
consistent with the purpose of the privilege. Thus,
since the purpose of the attorney-client privilege is
to protect the confidentiality of attorney-client
communications in order to foster candor within the
attorney-client relationship, voluntary breach of
confidence for tactical purposes waives the privilege.
Disclosure is inconsistent with confidentiality, and
courts need not permit hide-and-seek manipulation of
confidence in order to foster candor.87
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\87\ 676 F.2d 793, 818 (D.C. Cir. 1982).
The testimony before this Committee of Mr. Watkins, Mr.
Moore and Ms. Thomasson, their conduct during the evolution of
the memo, as well as the conduct of the White House in handling
the disputed documents, belie the existence of a valid claim of
attorney-client privilege. There is substantial doubt whether
there was in fact an attorney-client relation between Moore and
Watkins and whether Moore was actually performing legal
services for Watkins. There is no doubt that even if such a
relation arose at some early time, the necessary maintenance of
confidentiality was not maintained and the privilege, if it
existed at all, was waived.
Mr. Watkins' testimony before this Committee on January 16,
1996, prior to the revelation that numerous drafts pre-and
post-dating the soul cleansing memo were discovered in
Thomasson's files, described Moore's role in the creation of
that document as solely that of a ``scribe:'' ``I dictated this
memorandum * * * I had a scribe to actually write it.'' 88
It is only when the existence of the numerous drafts of the
document became known that a legal relationship was concocted.
Watkins' legal memo concedes Moore was a scribe, but also
claims he was advising Watkins ``how to prepare the Memorandum
to Counsel so that it would be considered privileged and
confidential.'' More to the point, Mr. Watkins is said to have
believed that ``Moore's assistance, and status as an attorney,
would help preserve the privileged and confidential status of
the document.'' To prove Mr. Moore's value, Watkins' counsels'
memo points to the fact that each and every version was stamped
``PRIVILEGED AND CONFIDENTIAL.'' But it is hardly necessary to
have an attorney to wield such a stamp. What is necessary is
that one's attorney perform legal services.
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\88\ Travel Office Hearing, supra, at 14.
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Mr. Moore testified that he certainly did not believe he
was acting as Watkins' private attorney in this matter.89
Rather, only allows that Watkins could have ``a colorable claim
[of privilege] to assert.'' 90 Nor does Moore directly
claim he was Watkins' attorney in this matter in his official
capacity as ``special counsel'' to that Office. In describing
how he ``gave'' legal advice, he stated that Watkins would come
to him about a legal issue and he would go to the White House
Counsel's Office for the answer and then convey it to
Watkins.91
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\89\ Dep. Tr. at 64-65.
\90\ Id. at 65.
\91\ Id. at 66.
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In fact, Moore was fresh out of law school and a legal
tyro, while Watkins throughout this entire period had a major
Washington law firm, Hogan & Hartson, on retainer. Indeed,
Watkins' present counsel asserts that many, if not all, of the
drafts in question were sent to Mr. Cobb of that firm ``for his
review and advice.'' Yet the privileged relationship that is
asserted is between Moore and Watkins and not Cobb and Watkins.
Close scrutiny of the ``soul cleansing'' memo, which is
asserted to contain the same content as some of the drafts now
in contest, does not indicate that it is a legal document or
one that required the application of legal skills. It is
essentially a factual recitation, from Watkins' point of
reference, of what happened during the period that led to the
May 1993 firings of the Travel Office staff, why it happened,
and why the internal review was inaccurate. The Travel Office
was squarely within Mr. Watkins' official jurisdiction. This
document, then, readily can be seen as predominantly relating
to the business of the Office of Management and Administration
rather than as a document that dealt with legal issues or even
needed more than minimal legal expertise.
In sum, this aspect of the claim of attorney-client
privilege appears to be nothing more than a transparent
afterthought. There was no intent to create the requisite
relation; and the documents created related to the business of
the Office of Management and Administration.
Finally, even if an attorney-client relationship could be
established, it certainly was waived by the early sharing of
the ultimately-revealed draft with Patsy Thomasson, by the
discussions of that draft by Watkins and Moore with Thomasson,
and by its wide distribution after its discovery by the White
House to other White House personnel and the media. It would be
specious to contend that the waiver is limited only to
Thomasson's draft. Watkins' counsel has asserted that the
content of the withheld drafts is similar. That alone suffices
to vitiate the privilege for all other extant drafts. Selective
assertion and disclosure is not tolerated by the courts. It is
equally unacceptable to this Committee.
b.2 The Claim of Protection under the Work Product Doctrine
is not Sustainable.
Watkins claims that the work product doctrine protects the
withheld documents because they were the ``work of an attorney
is preparation for litigation'' and contain ``subjective
beliefs, impressions, and strategies'' which are protected as
``opinion'' work product. In fact, the work product doctrine is
not applicable in the congressional forum; but even if
applicable, it cannot be sustained under the circumstances of
this situation. It is problematic that the documents in
question actually were prepared for litigation. In any event,
the Committee's need for the documents would demonstrate the
heightened need necessary when opinion work product is involved
if this matter were before a court. It is plain that the
qualified privilege afforded has been waived by Watkins'
conduct.
The qualified immunity from discovery of an attorney's work
product is recognized by the Supreme Court 92 and codified
in Rule 23(b)(3) of the Federal Rules of Civil Procedure.
93 The Rule provides that in a civil action there is
qualified immunity from discovery when materials are:
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\92\ Hickman v. Taylor, 329 U.S. 495 (1947).
\93\ Rule 26(b)(3) provides in pertinent part: ``Trial Preparation:
Materials * * * [A] party may obtain discovery of documents and
tangible things * * * prepared in anticipation of litigation or for
trial by or for another party or by or for that other party's
representative (including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent) only upon a showing that the
party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required
showing has been made, the Court shall protect against disclosure of
the mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
litigation.''
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1. ``documents and tangible things;''
2. ``prepared in anticipation of litigation or for
trial;'' and
3. ``by or for another party or for that other
party's representative.''
To overcome the qualified immunity, the party seeking discovery
must make a showing of: (1) substantial need for the materials;
and (2) inability to obtain the substantial equivalent of the
information without undue hardship. Upon such a showing, the
qualified immunity from discovery is overcome and the court
will order the materials produced.94
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\94\ See, generally 8 Wright, Miller and Marcus, Federal Practice
and Procedure, Sections 2021-2028 (1994).
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The federal rules do not define what is meant by the term
``litigation'' or ``in anticipation of.'' However, the Special
Masters' Guidelines for the Resolution Privilege Claims,
approved and adopted by the court in United States v. American
Telephone & Telegraph Co.,95 contain a detailed discussion
of both phrases that reflects precedent to that time and has
been influential since then. The Special Masters defined
``litigation'' as including ``a proceeding in a court or
administrative tribunal in which the parties have the right to
cross-examine witnesses or to subject an opposing party's
presentation of proof to equivalent disputation.'' 86 F.R.D. at
627. On its face, the definition would not apply to Congress,
which of course is not a court or administrative tribunal, or
to a congressional investigative hearing which, while often
confrontational, does not afford an opportunity for witnesses
to cross-examine other witness' or present rebuttal testimony
as would be the case in the adversarial adjudicative forum. We
are aware of no court that has held the work product doctrine
applicable to a legislative proceeding. The definition is also
consonant with the language of Rule 26(b)(3) which exclusively
uses terms such as ``party'', ``litigation'', ``trial'' and
``discovery'' which are alien to the legislative hearing
process.96
---------------------------------------------------------------------------
\95\ 86 F.R.D. 603 (D.D.C. 1980).
\96\ Wright, Miller and Marcus, supra, Section 2024 at 338-357; 86
F.R.D. at 627-30.
---------------------------------------------------------------------------
The ``in anticipation'' element was defined by the Special
Masters to mean:
any time after initiation of the proceeding or such
earlier time as the party who normally would initiate
the proceeding had tentatively formulated a claim,
demand, or charge. When the material was prepared by a
party who normally would initiate such a proceeding,
that person must establish the date when the claim,
demand, or charge was tentatively formulated. When the
material was prepared by a potential defendant or
respondent, that person must establish the date when he
received a demand or warning of charges or information
from an outside source that a claim, demand, or charge
was in prospect.97
---------------------------------------------------------------------------
\97\ 86 F.R.D. at 627.
The courts have made it clear that while there is no
requirement that litigation have already commenced in order for
the work product doctrine to be operative, there must be ``a
more immediate showing than the remote possibility of
litigation.'' 98 ``[F]or documents to qualify as attorney
work product, there must be an identifiable prospect of
litigation (i.e., specific claims that already have arisen) at
the time the documents were prepared.'' 99 One appellate
court recently recognized that ``because litigation is an ever-
present possibility in American life, it is more often the case
than not that new events are documented with the general
possibility of litigation in mind. Yet `[t]he mere fact that
litigation does ensue does not, by itself, cloak materials'
with work product immunity. The document must be prepared
because of the prospect of litigation when the preparer faces
an actual claim or potential claim following an actual event or
series of events that reasonably could result in litigation.''
100 Materials prepared in the ordinary course of business
will not be protected from production, even if the party is
aware that the document may also be useful in the event of
litigation.101 Similarly, ``[t]he acts performed by a
public employee in the performance of his official duties are
not `prepared in anticipation of litigation or for trial'
merely by virtue of the fact that they are likely to be the
subject of later litigation.'' 102
---------------------------------------------------------------------------
\98\ Garfinkle v. Arcada National Corp., 64 F.R.D. 688, 690 (SDNY
1974).
\99\ Fox v. California Sierra Financial Services, 120 F.R.D. 520,
525 (N.D. Calif. 1988).
\100\ National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967
F.2d 980, 984 (4th Cir. 1992).
\101\ Smith v. Conway Organization, 154 F.R.D. 73, 78 (SDNY 1994).
See also Litton Industries v. Lehman Bros. Kuhn Loeb, Inc., 125 F.R.D.
51, 54-55 (SDNY 1989).
\102\ Grossman v. Schwartz, 125 F.R.D. 376, 388 (SDNY 1989);
Department of Economic Development v. Arthur Anderson & Co., 139 F.R.D.
295, 700 (SDNY 1991).
---------------------------------------------------------------------------
Rule 26(b)(3) provides heightened protection for ``mental
impressions, conclusions, opinions or legal theories of an
attorney or other representative of a party concerning the
litigation.'' This protection against disclosure, however, is
not absolute and has been held to yield in appropriate
circumstances.103 Thus, when mental impressions are at
issue in the case and the need for the material is compelling,
they have been held discoverable.104 Courts consistently
have denied the protection in such ``at issue'' cases where
complete or partial lack of recollection of critical meetings
or events has been claimed.105 The protection has been
denied where what was at issue was the reason a government
prosecutor instituted an action.106
---------------------------------------------------------------------------
\103\ In re John Doe Corporation, 675 F.2d 482, 492 (2d Cir. 1982).
\104\ Holmgren v. State Farm Mutual Ins. Co., 976 F.2d 573, 577
(9th Cir. 1992) (claim of bad faith in the settlement process);
Handguards Inc. v. Johnson & Johnson, 413 F.Supp 926, 931-31 (N.D.
Calif. 1976) (bad faith in instituting litigation).
\105\ Erlich v. Howe, 848 F.Supp 842, 492-93 (SDNY 1994); Redvanly
v. NYNEX Corp., 152 F.R.D. 460, 468-69 (SDNY 1993); Doubleday v. Ruh,
149 F.R.D. 601, 608 (E.D. Cal. 1993); In re Worlds of Wonder Securities
Litigation, 147 F.R.D. 208, 212 (N.D. Cal. 1992).
\106\ Doubleday v. Ruh, supra, 149 F.R.D. at 608 (``Here, plaintiff
asserts that the main issue of her case is the affect [sic] defendants
had on the district attorney's decision to prosecute''.); EEOC v.
Anchor Continental, Inc., 74 F.R.D. 523, 526-28 (D.S.C. 1977)
(``However, there must be an exception to this [work product] rule when
the Court's in camera inspection reveals that the plaintiff, a branch
of the United States government, has little faith in its case, has
little evidence to go on and hopes to be able to prove the case through
discovery or force a settlement upon a defendant who might not be able
to stand the financial burden of defending itself''.).
---------------------------------------------------------------------------
Assuming the subject documents are not covered by
attorney-client privilege, it would appear that a court would
have difficulty in finding that the documents were prepared
``in anticipation of litigation.'' We are not aware of case
precedent holding that a congressional investigative hearing is
a proceeding meant to covered by Rule 26(b)(3). The qualified
privilege recognized by the rule was designed for the adversary
process and, like the attorney-client privilege, is likely to
be held limited to the needs of that forum. It is also
problematic whether a successful argument could be made that
any of the documents were produced in the reasonably
foreseeable likelihood that Watkins would be a party in any
civil or criminal action.
Further, even if the documents fall within the scope of
the rule, the Committee would likely be able to demonstrate the
heightened level of need required when opinion work product is
involved. The Committee's inquiry has been concerned in large
part with the motivations of the participants in the Travel
Office matter. Indeed, claims of lack of complete or only
partial recollections of meetings or events have consistently
impeded the progress of the Committee's investigation. The case
law alluded to above indicates that in such circumstances the
courts would deny work product protection.
Additionally, the actions of Watkins and the White House in
dealing with the soul cleansing memo, recounted above in the
discussion of the issue of waiver of the attorney-client
privilege, are equally applicable and compelling here.
Finally, it is to be recalled that the burden is on the
claimant to demonstrate the applicability of the privilege
claimed, and in the end the determination whether to accept it
rests in the sound discretion of the Chairman and the
Committee.
AUTHORITY
The Committee on Government Reform and Oversight is a duly
established Committee of the House of Representatives, pursuant
to the Rules of the House of Representatives, 104th Congress,
Second Session.
Rule 10 grants the Committee on Government Reform and
Oversight jurisdiction over, inter alia, ``The overall economy,
efficiency and management of government operations and
activities * * *'' Rule 10 further states that the Committee
``may at any time conduct investigations of any matter * * *''
The Rules of the Committee on Government Reform and
Oversight, approved on January 10, 1995, provide that the
Chairman ``shall: (d) Authorize and issue subpoenas as provided
in House Rule XI, clause 2(m), in the conduct of any
investigation or activity or series of investigations or
activities within the jurisdiction of the committee.''
Pursuant, therefore, to its responsibilities and authority
as mandated by the House of Representatives, the Committee has
issued subpoenas for documents and information which, as
prescribed by Committee rules, were deemed essential to its
inquiry. The subpoenas which form the basis of the recommended
resolution were issued in full conformance with this authority.
As indicated above, White House Counsel John M. Quinn,
David Watkins, and Matthew Moore were summoned to furnish
materials in their custody and control pursuant to valid, duly
executed subpoenas of the Committee, but they deliberately
failed to comply with the terms of said subpoena.
CHRONOLOGY OF CORRESPONDENCE \107\
----------------------------------------------------------------------------------------------------------------
Date To From Subject
----------------------------------------------------------------------------------------------------------------
June 1, 1993......................... Hon. John Conyers, Hon. William F. Request Investigation.
Jr.\108\. Clinger, Jr.\109\.
June 16, 1993........................ Thomas F. McLarty \110\ William F. Clinger, Jr. Ask Questions.
Hon. Robert Michel
\111\.
Hon. Newt Gingrich
\112\.
Hon. Richard Armey
\113\.
Hon. Henry Hyde \114\..
June 18, 1993........................ William F. Clinger, Jr. Thomas F. McLarty...... Announce Mgmt. Review.
July 2, 1993......................... Robert Michel.......... Thomas F. McLarty...... Release Mgmt. Review.
July 13, 1993........................ Hon. Jack Brooks \115\. President Bill Clinton. Promise Cooperation.
July 15, 1993........................ William F. Clinger, Jr. John Conyers, Jr....... Refer to GAO.
August 6, 1993....................... President Bill Clinton. Robert Michel.......... Asks Questions.
Dick Armey.............
Newt Gingrich..........
Henry Hyde.............
William F. Clinger, Jr.
August 24, 1993...................... William F. Clinger, Jr. Thomas F. McLarty...... Refer to Justice
Department.
October 11, 1993..................... William F. Clinger, Jr. Bernard W. Nussbaum Refer to Justice
\116\. Department.
October 15, 1993..................... Bernard W. Nussbaum.... William F. Clinger, Jr. Asks Questions.
October 26, 1993..................... William F. Clinger, Jr. Bernard W. Nussbaum.... Refer to Justice
Department.
February 24, 1994.................... President Bill Clinton. William F. Clinger, Jr. Asks Questions.
Hon. Frank Wolf \117\..
Richard Armey..........
Henry Hyde.............
February 24, 1994.................... Janet Reno \118\....... William F. Clinger, Jr. Asks Questions.
Henry J. Hyde..........
Richard Armey..........
September 13, 1994................... Joel I. Klein \119\.... Kevin Sabo \120\....... Request for Documents.
September 20, 1994................... Philip Lader \121\..... William F. Clinger, Jr. Request for Documents.
April 24, 1995....................... Steven Riewerts \122\.. Tichenor & Associates Accounting
\123\. Recommendations.
May 4, 1995.......................... William F. Clinger, Jr. Abner J. Mikva \124\... Limited Document
Access.
May 11, 1995......................... Phil Larsen \125\...... Jonathan R. Yarowsky Document Review
\126\. Procedures.
May 31, 1995......................... Abner Mikva............ William F. Clinger, Jr. Request for Documents.
June 1, 1995......................... William F. Clinger, Jr. Abner J. Mikva......... Requests a Meeting.
June 14, 1995........................ Abner Mikva............ William F. Clinger, Jr. Requests for
Interviews.
June 16, 1995........................ Barbara Comstock \127\. Jonathan R. Yarowsky... Promise of Documents.
June 26, 1995........................ Abner Mikva............ Kevin Sabo............. Procedures for
Documents.
June 29, 1995........................ William F. Clinger, Jr. Abner J. Mikva......... Promise of Documents.
July 7, 1995......................... Kevin Sabo............. Jonathan R. Yarowsky... Limited Access to
Documents.
July 13, 1995........................ Abner Mikva............ William F. Clinger, Jr. Request for Documents.
July 15, 1995........................ William F. Clinger. Jr. Abner J. Mikva......... Procedures for
Documents.
July 17, 1995........................ Abner Mikva............ William F. Clinger, Jr. Requests for Documents.
July 19, 1995........................ Phil Larsen............ Natalie R. Williams Limited Access to
\128\. Documents.
July 20, 1995........................ Abner Mikva............ William F. Clinger, Jr. Requests for
Information.
July 25, 1995........................ William F. Clinger, Jr. Abner J. Mikva......... Provides Limited
Information.
July 26, 1995........................ Abner Mikva............ William F. Clinger, Jr. Requests for
Information.
August 1, 1995....................... Natalie Williams....... Phil Larsen............ Procedures for
Documents.
August 2, 1995....................... Phil Larsen............ Natalie Williams....... Limited Access to
Documents
August 9, 1995....................... Phil Larsen............ Natalie Williams....... Limited Access to
Documents.
August 17, 1995...................... Abner Mikva............ Kevin Sabo............. Procedures for
Documents.
August 23, 1995...................... Kevin Sabo............. Jane C. Sherburne \129\ Procedures for
Documents.
August 24, 1995...................... Abner Mikva............ Kevin Sabo............. Procedures for
Documents.
August 25, 1995...................... Phil Larsen............ Natalie Williams....... Promise of Documents.
August 25, 1995...................... Barbara Comstock....... Natalie Williams....... Limited Access to
Documents.
August 25, 1995...................... Natalie Williams....... Phil Larsen............ Request for Documents.
August 28, 1995...................... Barbara Comstock....... Natalie Williams....... Limited Access to
Documents.
August 30, 1995...................... William F. Clinger, Jr. Abner J. Mikva......... Answers Questions.
September 1, 1995.................... Barbara Comstock....... Jane C. Sherburne...... Answers Questions.
September 1, 1995.................... Kevin Sabo............. Jane C. Sherburne...... Procedures for
Interviews
September 5, 1995.................... Barbara Comstock....... Natalie Williams....... Limited Access to
Documents.
September 6, 1995.................... Abner Mikva............ William F. Clinger, Jr. Request for Documents.
September 6, 1995.................... Jane C. Sherburne...... Barbara K. Bracher Requests Information.
\130\.
September 8, 1995.................... William F. Clinger, Jr. Abner J. Mikva......... Procedures for
Documents.
September 12, 1995................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
September 15, 1995................... Barbara K. Bracher..... Jane C. Sherburne...... Answers Questions.
September 18, 1995................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
September 18, 1995................... Abner Mikva............ William F. Clinger, Jr. Request for Documents.
September 18, 1995................... Abner Mikva............ William F. Clinger, Jr. Request for Documents.
September 20, 1995................... Jane Sherburne......... Barbara K. Bracher..... Request for Documents.
September 20, 1995................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
September 22, 1995................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
September 25, 1995................... Barbara K. Bracher..... Jane Sherburne......... Limited Access to
Documents.
September 27, 1995................... William F. Clinger, Jr. Abner J. Mikva......... Answers Questions.
September 28, 1995................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
October 4, 1995...................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
October 5, 1995...................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
October 11, 1995..................... Terry Good \131\....... William F. Clinger, Jr. Request for Documents.
October 11, 1995..................... Abner Mikva............ William F. Clinger, Jr. Request for Documents.
October 12, 1995..................... Kevin Sabo............. Jane Sherburne......... Procedures for
Documents.
October 13, 1995..................... Barbara K. Bracher..... Jane C. Sherburne...... Promise to Produce
Documents.
October 13, 1995..................... Jane Sherburne......... Barbara K. Bracher..... Request for Documents.
October 13, 1995..................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
October 13, 1995..................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
October 16, 1995..................... Barbara Comstock....... Natalie Williams....... Limited Access to
Documents.
October 17, 1995..................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
October 18, 1995..................... William F. Clinger, Jr. Abner J. Mikva......... Promise to Produce
Documents.
October 20, 1995..................... Jane Sherburne......... Barbara K. Bracher..... Request for Documents.
October 21, 1995..................... Barbara K. Bracher..... Jane C. Sherburne...... Promise to Produce
Documents.
October 23, 1995..................... Abner Mikva............ William F. Clinger, Jr. Clarification of Doc.
Request.
November 2, 1995..................... Jane Sherburne......... Barbara Comstock....... Clarification of Doc.
Request.
November 6, 1995..................... Barbara K. Bracher..... Jane C. Sherburne...... Procedures for
Documents.
November 8, 1995..................... Jane Sherburne......... Barbara K. Bracher..... Procedures for
Documents.
November 13, 1995.................... Jane C. Sherburne...... Barbara K. Bracher..... Procedures for
Documents.
November 14, 1995.................... John M. Quinn \132\.... William F. Clinger, Jr. Request for Documents.
November 14, 1995.................... Barbara Bracher........ Jane C. Sherburne...... Limited Access to
Documents.
November 29, 1995.................... John M. Quinn.......... William F. Clinger, Jr. Request for Documents.
November 29, 1995.................... Jane C. Sherburne...... Barbara K. Bracher..... Clarification of Doc.
Request.
December 14, 1995.................... John M. Quinn.......... William F. Clinger, Jr. Request for Documents.
December 20, 1995.................... William F. Clinger, Jr. John M. Quinn.......... Promise to Produce
Documents.
December 22, 1995.................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
January 2, 1996...................... Thomas F. McLarty...... William F. Clinger, Jr. Request for
Information.
January 3, 1996...................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
January 11, 1996..................... John M. Quinn.......... William F. Clinger, Jr. Request for Documents.
January 16, 1996..................... President Bill Clinton. William F. Clinger, Jr. Request for
Cooperation.
January 16, 1996..................... Barbara K. Bracher..... Christopher D. Cerf Limited Access to
\133\. Documents.
January 17, 1996..................... William F. Clinger, Jr. John M. Quinn.......... Answers to Questions.
January 18, 1996..................... Barbara K. Bracher..... Jane C. Sherburne...... Promise to Produce
Documents.
January 19, 1996..................... Barbara K. Bracher..... Christopher D. Cerf.... Limited Access to
Documents.
January 22, 1996..................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
January 22, 1996..................... Barbara Bracher........ Jane C. Sherburne...... Limited Access to
Documents.
January 22, 1996..................... William F. Clinger, Jr. John M. Quinn.......... Promise to Produce
Documents.
January 22, 1996..................... John M. Quinn.......... William F. Clinger, Jr. Request for
Information.
January 23, 1996..................... John M. Quinn.......... William F. Clinger, Jr. Request for
Cooperation.
January 23, 1996..................... William F. Clinger, Jr. John M. Quinn.......... Limited Access to
Information.
January 24, 1996..................... William F. Clinger, Jr. John M. Quinn.......... Limited Access to
Information.
January 25, 1996..................... William F. Clinger, Jr. John M. Quinn.......... Answers to Questions.
January 29, 1996..................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
February 1, 1996..................... President Bill Clinton. William F. Clinger, Jr. Request for
Cooperation.
February 1, 1996..................... William F. Clinger, Jr. John M. Quinn.......... Limited Access to
Information.
February 2, 1996..................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
February 5, 1996..................... William F. Clinger, Jr. John M. Quinn.......... Limited Access to
Information.
February 6, 1996..................... John M. Quinn.......... William F. Clinger, Jr. Clarification of Doc.
Request.
February 9, 1996..................... John M. Quinn.......... William F. Clinger, Jr. Procedures for
Documents.
February 14, 1996.................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
February 15, 1996.................... Hillary Clinton, Esq... William F. Clinger, Jr. Request for
Information.
February 26, 1996.................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Information
February 26, 1996.................... William F. Clinger, Jr. John M. Quinn.......... Procedures for
Documents.
February 27, 1996.................... Barbara K. Bracher..... Jane C. Sherburne...... Answers Questions.
February 27, 1996.................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
March 4, 1996........................ Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
March 5, 1996........................ Kevin Sabo............. Jane C. Sherburne...... Answers Questions.
March 8, 1996........................ Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
March 12, 1996....................... John M. Quinn.......... William F. Clinger, Jr. Notification of
Depositions.
March 15, 1996....................... William F. Clinger, Jr. John M. Quinn.......... Answers Questions.
March 15, 1996....................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
March 20, 1996....................... John M. Quinn.......... William F. Clinger, Jr. Request for Privilege
Log.
March 21, 1996....................... William F. Clinger, Jr. David E. Kendall \134\. Responses of Mrs.
Clinton.
March 21, 1996....................... William F. Clinger, Jr. John M. Quinn.......... Request Cont. Rolling
Prod.
March 26, 1996....................... John M. Quinn.......... William F. Clinger, Jr. Request for
Information.
March 27, 1996....................... William F. Clinger, Jr. John M. Quinn.......... Answers Questions.
March 27, 1996....................... John M. Quinn.......... William F. Clinger, Jr. Request for
Information.
March 27, 1996....................... John M. Quinn.......... William F. Clinger, Jr. Request for
Information.
March 28, 1996....................... John M. Quinn.......... William F. Clinger, Jr. Request for
Information.
March 28, 1996....................... William F. Clinger, Jr. Jane C. Sherburne...... Limited Access to
Documents.
April 1, 1996........................ Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Information.
April 2, 1996........................ Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
April 3, 1996........................ William F. Clinger, Jr. John M. Quinn.......... Promise to Provide
Information.
April 3, 1996........................ William F. Clinger, Jr. John M. Quinn.......... Answers Questions.
April 4, 1996........................ John M. Quinn.......... William F. Clinger, Jr. Request for Documents.
April 5, 1996........................ Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
April 5, 1996........................ William F. Clinger, Jr. John M. Quinn.......... Answers Questions.
April 9, 1996........................ William F. Clinger, Jr. Jane C. Sherburne...... Answers Questions.
April 11, 1996....................... William F. Clinger, Jr. Jane C. Sherburne...... Answers Questions.
April 18, 1996....................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
April 23, 1996....................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
April 24, 1996....................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
April 24, 1996....................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
May 2, 1996.......................... John M. Quinn.......... William F. Clinger, Jr. Request Final Prod. of
Docs.
May 2, 1996.......................... William F. Clinger, Jr. John M. Quinn.......... Claims
Politicalization.
May 3, 1996.......................... William F. Clinger, Jr. John M. Quinn.......... Discuss Docs. Withheld.
May 3, 1996.......................... Cardiss Collins........ William F. Clinger, Jr. Seeking Assistance.
May 6, 1996.......................... John M. Quinn.......... William F. Clinger, Jr. Demand Final Prod.
May 6, 1996.......................... William F. Clinger, Jr. John M. Quinn.......... Suggest More
Compromise.
May 7, 1996.......................... John M. Quinn.......... William F. Clinger, Jr. Requests Executive
Priv. Claim.
May 7, 1996.......................... Barbara K. Bracher..... Jane C. Sherburne...... Limited Access to
Documents.
May 9, 1996.......................... William F. Clinger, Jr. John M. Quinn.......... Claims Executive
Privilege.
----------------------------------------------------------------------------------------------------------------
\107\ This correspondence has been made public in Correspondence between the White House and Congress in the
Proceedings Against John M. Quinn, David Watkins, and Matthew Moore, Committee Investigation into the White
House Travel Officer Matter, House Committee on Government Reform and Oversight, 104th Congress, 2d Session,
May 1996.
\108\ John Conyers, at the time of this letter was the Chairman of the House Committee on Government Operations.
He is currently the Ranking Minority Member of the House Committee on the Judiciary.
\109\ William F. Clinger, Jr., at the time of this letter, was the Ranking Minority Member of the House
Committee on Government Operations. He is currently Chairman of the House Committee on Government Reform and
Oversight.
\110\ Thomas F. McLarty, at the time of this letter, was the White House Chief of Staff.
\111\ Robert Michel, at the time of this letter, was the Minority Leader in the U.S. House of Representatives.
He currently is retired from the U.S. House.
\112\ Newt Gingrich, at the time of this letter, was the Minority Whip in the U.S. House of Representatives. He
currently is the Speaker of the U.S. House.
\113\ Richard Armey, at the time of this letter, was the Chairman of the Republican Conference in the U.S. House
of the Representatives. He currently is the Majority Leader of the U.S. House.
\114\ Henry Hyde, at the time of this letter, was a member of the House Committee on the Judiciary. He currently
is the Chairman of that committee.
\115\ Jack Brooks, at the time of this letter, was Chairman of the House Committee on the Judiciary. He
currently is retired from the U.S. House.
\116\ Bernard W. Nussbaum, at the time of this letter, was the White House Counsel.
\117\ Frank Wolf, at the time of this letter, was the Ranking Minority Member of the House Appropriation's
Subcommittee on Treasury, Postal Service, and General Government.
\118\ Janet Reno is the Attorney General of the United States.
\119\ Joel Kline is the Deputy Counsel to the President.
\120\ Kevin Sabo is the General Counsel of the House Committee on Government Reform and Oversight.
\121\ Philip Lader, at the time of this letter, was the White House Deputy Chief of Staff.
\122\ Steven Riewerts was the interim director of the White House Travel Office after the May 1993 firings.
\123\ Tichenor and Associates is a management accounting firm which was hired to audit the White House Travel
Office for calendar year 1994.
\124\ Abner J. Mikva, at the time of the letter, was the White House Counsel. He currently is retired from the
U.S. Government.
\125\ Phil Larsen, at the time of the letter, was the Chief Investigator of the House Committee on Government
Reform and Oversight. He currently is retired from the U.S. Government.
\126\ Jonathan R. Yarowsky is an Associate Counsel at the White House.
\127\ Barbara Comstock is an Investigative Counsel with the House Committee on Government Reform and Oversight.
\128\ Natalie R. Williams, at the time of the letter, was an Associated Counsel at the White House.
\129\ Jane C. Sherburne is a Special Counsel at the White House.
\130\ Barbara K. Bracher is the Chief Investigative Counsel with the House Committee on Government Reform and
Oversight.
\131\ Terry Good is the Director of the White House Office of Records Management.
\132\ John M. Quinn is the White House Counsel.
\133\ Christopher D. Cerf is an Associate Counsel at the White House.
\134\ David E. Kendall is a private attorney representing the President and First Lady.
COMPLIANCE WITH RULE XI
(1) Pursuant to clauses 2(l)(2) (A) and (B) of rule XI, a
majority of the Committee having been present, the resolution
recommended in this report was approved by a vote of 27 ayes to
19 nays.
(2) Pursuant to rule XI, clause 2(l)(3)(A) and rule X,
clause 2(b)(1), the findings and recommendations of the
Committee are found in the Facts, Background, and Findings
section of this report.
(3) Pursuant to rule XI, clause 2(l)(3)(B) and section
308(a)(l) of the Congressional Budget Act of 1974, the
Committee finds that no new budget authority, new spending
authority, new credit authority or an increase or decrease in
revenues or tax expenditures result from enactment of this
resolution.
(4) Pursuant to rule XI, clause 2(l)(3)(C) and section
403(a) of the Congressional Budget Act of 1974, the Committee
finds that a statement of the Congressional Budget Office cost
estimate is not required as this resolution is not of a public
character.
(5) Pursuant to rule XI, clause 2(l)(4), the Committee
finds that a statement of inflationary impact is not required
as this resolution is not of a public character.
CONCLUSION
The Committee properly proceeded with its bipartisan
investigation of the allegations regarding the terminations of
White House Travel Office workers. Upon due deliberation, it
received the advice of the Chairman of the Committee that the
cooperation of the individuals named in the resolution was not
forthcoming. In essence, the individuals are seeking to set the
priorities and schedule of the Committee's investigation into
the Travel Office matter. The Congress cannot accept that
arrangement as a constraint on its investigatory authority.
Accordingly, the Committee recommends to the House the
following resolution:
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the Committee on
Government Reform and Oversight, detailing the refusal of John
M. Quinn to produce papers to the Committee on Government
Reform and Oversight, to the United States Attorney for the
District of Columbia, for him to be proceeded against in the
manner and form provided by law; and be it further
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the Committee on
Government Reform and Oversight, detailing the refusal of David
Watkins to produce papers to the Committee on Government Reform
and Oversight, to the United States Attorney for the District
of Columbia, for him to be proceeded against in the manner and
form provided by law; and be it further
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the Committee on
Government Reform and Oversight, detailing the refusal of
Matthew Moore to produce papers to the Committee on Government
Reform and Oversight, to the United States Attorney for the
District of Columbia, for him to be proceeded against in the
manner and form provided by law.
ADDITIONAL VIEWS OF HON. WILLIAM F. CLINGER, JR.
A. Character of the Presidency
It is troubling that the President of the United States
persists in his efforts to cover-up a scandal having no
connection with any national security or vital domestic policy
issue. In the final analysis, the Travel Office matter reflects
the character of the President and his presidency.
We are by no means rushing matters here. For example, when
Congress subpoenaed Secretary of State Henry Kissinger for
documents pertaining to national security, a House committee
met two days after the return date of the subpoena and voted
Mr. Kissinger in contempt of Congress despite an assertion of
executive privilege. By contrast, we have provided months and
months for production, and the White House Counsel's Office
previously committed to timely claims of executive privilege so
that just such a confrontation as this would not occur.
Clearly, the White House's word on this was hollow.
Frankly, the President's last minute and ineffective claim
of executive privilege is an unprecedented development. I am
disappointed that the President, who three years ago pledged to
get to the bottom of the Travel Office matter and cooperate
instead has taken the extraordinary position of attempting to
assert a blanket, undifferentiated executive privilege over all
outstanding Travel Office documents. Such a blanket executive
privilege was rejected in U.S. v. Nixon. But in the Nixon case,
the White House had at least identified the documents they were
withholding. This President once promised the most open
Administration in the history of the nation; yet now doesn't
even meet the woefully low standard of President Nixon in
identifying withheld documents.
This is the first executive privilege claim attempted by
President Clinton. The rules governing executive privilege have
not been updated since they were issued by President Ronald
Reagan in 1982 but White House Counsel John M. Quinn informed
me that the Clinton Administration would follow the Reagan
procedures. Quoting from this order:
``Executive privilege will be asserted only in the
most compelling circumstances, and only after careful
review demonstrates that assertion of this privilege is
necessary.'' ``Congressional requests for information
shall be complied with as promptly and as fully as
possible, unless it is determined that compliance
raises a substantial question of executive privilege.''
``A `substantial question of executive privilege'
exists if disclosure of the information requested might
significantly impair the national security (including
the conduct of foreign relations), the deliberative
process of the executive branch, or other aspects of
the performance of the executive branch's
constitutional duties.'' (emphasis added)
It has been White House policy since the Kennedy
Administration not to invoke executive privilege when
allegations of wrongdoing are at issue. Certainly, that is the
case with the Travel Office matter. Already, there has been a
criminal referral from the General Accounting Office (GAO)
involving Mr. David Watkins' statements regarding the Travel
Office firings. Independent Counsel Kenneth Starr's
jurisdiction has been expanded to encompass this and other
Travelgate issues.
In light of the expansion of the independent counsel's
jurisdiction, the President's actions are particularly
troubling. I would note, for example, that President Reagan
waived all claims of executive privilege during the Iran-Contra
investigation.
I find it difficult to understand how documents related to
the White House Travel Office scandal somehow rise to a
``substantial question of executive privilege.'' Certainly,
disclosure of these documents would not impair the national
security or the conduct of foreign relations. Nor would the
performance of the executive branch's constitutional duties be
impaired if President Clinton kept his own pledge to get to the
bottom of this matter.
B. A culture of secrecy
The Committee's receipt of an ineffective blanket claim of
executive privilege the morning of the Committee vote was
typical of the Administration's pattern of response from the
start--delay and delay until threatened with criminal contempt
for refusing to comply with proper procedure, then try to buy
more time with hollow promises of future cooperation. We have
heard a great deal about the 40,000 pages of documents as proof
of White House cooperation. But the quantity of documents does
not determine the thoroughness of production. President Clinton
continues to withhold an unidentified body of subpoenaed
records. Many of the records emanate from the Counsel's office.
In the wake of the uproar over the Travel Office firings,
the President promised to ``get to the bottom'' of what
happened in the firing of the Travel Office employees. He also
committed to Congress that he would fully cooperate with
Justice Department investigations into this matter. No issue of
executive privilege was raised. No talk of internal
deliberative process or withholding documents was ever
mentioned by the President at that time.
In the past, I have participated with my colleagues in
subpoenaing documents from White House officials. In my
experience, I never before have met with such intransigence
from any previous administration. Had a Republican
administration behaved in this manner, I by no means would have
endorsed such disdain for Congress.
The Administration's resistance to oversight in this matter
began almost immediately after the firings and demonstrates the
culture of secrecy that has become its hallmark. In notes dated
May 27, 1993, White House Management Review author Todd Stern
wrote,
Problem is that if we do any kind of report and fail
to address those questions, the press jumps on you
wanting to know answers; while if you give answers that
aren't fully honest (e.g., nothing re: HRC), you risk
hugely compounding the problem by getting caught in
half-truths. You run the risk of turning this into a
cover-up. (emphasis added)
This White House embarked on an unmistakable course which
frustrated, delayed, and derailed investigators from the White
House itself, the GAO, the Federal Bureau of Investigation, and
the administration's own Justice Department Office of
Professional Responsibility and Public Integrity Sections. That
is what has brought the Committee to this unfortunate impasse.
This White House simply refuses to provide this Committee
with the subpoenaed documents that will help us bring this
Travel Office investigation to a close, something that I have
sought to do for nearly three years. Documents inexplicably
have been misplaced in ``stacks,'' or ``book rooms'' or storage
boxes, where they languished for months if not years, despite
subpoenas and document requests from numerous official
investigative bodies.
If President Clinton responds to investigations of
presumably minor internal problems this way, how does he handle
far more serious national and international matters? This
administration's culture of secrecy could have disastrous
consequences where critical national policy matters involving
foreign affairs are concerned. Let there be no
misunderstanding. What we have before the Committee should not
be the issue of a constitutional confrontation. This Committee
seeks no records pertaining to the national security. This is
not Bosnia. This is not Iran. International relations are not
at stake.
When the White House, as in the case here, fails to comply
fully with investigations mandated by Congress or senior
Justice Department officials, the oversight role critical to
our system of checks and balances is compromised and it is
incumbent upon this Committee to assert and to uphold its
jurisdiction and congressional prerogatives.
C. Deliberate attempt to obstruct legitimate oversight
Almost three years ago, I requested information and
hearings into the Travel Office matter. I repeatedly was
stymied in my efforts until Republicans gained a majority in
the House. Prior to the change in House leadership, the White
House refused to provide access to any documents. For the past
three years, the White House has made every effort to
deliberately, and continuously, obstruct legitimate oversight
by both the executive branch and the Congress.
In a particularly cynical memo, White House Associate
Counsel Neil Eggleston wrote his superiors advising that the
White House should deny Republicans access to GAO Travel Office
documents until after the White House appropriations bill was
enacted. This exhibits the gamesmanship which has epitomized
this Administration and its counsel's office. Now, even
subpoenas are not treated seriously.
As I have mentioned, we already have had a criminal
referral regarding David Watkins'' statements about the Travel
Office. This came about after a long-withheld ``soul cleansing
memo'' by Mr. Watkins which surfaced years after it should have
been produced to numerous investigative bodies in response to
document requests and subpoenas. Not a single previous
investigation had access to that document. While several people
in the White House knew about this memo, it never was turned
over to the GAO, OPR, Public Integrity, or this Committee,
frankly, for years.
It was the ``surprise'' finding of one version of that two-
and-a-half year old ``soul cleansing'' memo that caused this
Committee to move to bipartisan subpoenas for the production of
documents. The subpoenas to the White House were issued on a
bipartisan basis with input from the minority staff. Subpoenas
to the White House and to individuals in turn produced other
documents that previously had been overlooked.
I am convinced that the White House also is running the
clock into the political season precisely so that it may cry
foul, claiming that this whole investigation is an election
year ploy.
Ask the White House: Was it an election year ploy in 1993
when the President signed a law mandating a GAO review of the
Travel Office? Was it an election year ploy when his own deputy
attorney general ordered a Justice Department Office of
Professional Responsibility study in 1993? Was it an election
year ploy when the Justice Department began an investigation of
the President's longtime Hollywood pal, Harry Thomason?
My initial target date to complete this investigation was
the summer of 1993. I myself first requested answers on this
subject three years ago. And, when I became chairman of this
Committee, I made every effort to complete this investigation
last fall.
D. Civil contempt as a remedy
I will close by addressing the recommendation of the
President's Counsel that Congress resolve this document dispute
by enacting a civil remedy statute and proceeding in civil
court. Frankly, I am astonished at hearing this recommendation
by a Democrat President when the contemnor is a Democrat after
knowing that the concept of a civil remedy has been so
resoundingly rejected by previous Democrat Congress'' when the
contemnor was a Republican.
Former House of Representative Counsel Stanley Brand noted
during the contempt of Congress dispute with the Reagan
Administration Environmental Protection Agency Administrator
Anne Burford:
``It was the first time in this controversy that we
heard that the [criminal contempt] statute was somehow
an unseemly use of the judicial process. I would also
agree that a civil sanction is too easily invoked. As a
lawyer involved in civil litigation, if you allow me to
set foot into Federal district court to litigate a
claim of privilege, I can guarantee you I will be there
for at least three years * * * Committees will have a
lot of litigation, a lot of lawyers, a lot of travel
around to the various district courts in the United
States, but will have no papers, and it will have no
basis upon which to make the judgments it has to make.
It will be, quite frankly, a lawyer's field day and I
don't think that is in the interest of the Congress or
in the interest of the citizenry.'' 135
---------------------------------------------------------------------------
\135\ ``Prosecution of Contempt of Congress,'' Hearings before the
Subcommittee on Administrative Law and Government Relations of the
House Committee on the Judiciary, 98th Congress, 2d Sess., (Nov. 15,
1983), page 24.
The civil contempt statute resolution was also soundly
criticized by my colleague, Congressman Barney Frank, who sits
---------------------------------------------------------------------------
on the House Judiciary Committee. Rep. Frank stated,
``I am afraid that the procedure * * * would make it
too easy. The threshold for going to court, I think
under that, is too low, and I think we would be in
court much too often * * * The criminal sanction is the
way to force the issue and I would assume in any case
where a judge found against the official, that the
result would be not the imprisonment of that official,
but the production of the papers. It is difficult for
me to think that any executive branch official sworn to
uphold the laws, as we all are, would defy a court
order and withhold papers that he or she was ordered to
bring to us.'' 136
---------------------------------------------------------------------------
\136\ Id. at 19.
---------------------------------------------------------------------------
E. Conclusion
Clearly, citing contempt is a serious action. I am saddened
that it is necessary to take that step. The Congress must
invoke contempt, however, when a White House repeatedly
exhibits such disdain for civil and criminal investigations as
this one has throughout all of the Travelgate inquiries. I
certainly have anticipated the complaints my colleagues have
raised. But I must note that, in the past, when the House's
rights to information and the public's right to know have been
so baldly denied, the constitutional responsibilities and
institutional interests of this body have been recognized on a
bipartisan basis.
Long after all the other investigations gave up on finding
the truth this Committee continues to hold the President and
his administration to his word, to the pledges and commitments
of full cooperation which he made to the nation and to Congress
three years ago. It remains my hope that President Clinton will
recognize that the unfortunate course that he has chosen
creates a constitutional confrontation and may lead to the
criminal prosecution of one of his trusted aides. A true
statesman would take immediate steps to end a dispute over
records which have no impact on national security and no impact
on public-policy making. I have a constitutional duty to
perform effective oversight. The President has a constitutional
duty to cooperate.
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, 104th CONGRESS, ROLLCALL
[Offered by: Mr. Burton. Motion to move the previous question on the
amendment]
------------------------------------------------------------------------
Name Aye Name Nay
------------------------------------------------------------------------
Mr. Clinger................... X Mrs. Collins--IL...... X
Mr. Gilman.................... ....... Mr. Waxman............ X
Mr. Burton.................... X Mr. Lantos............ X
Mr. Hastert................... X Mr. Wise.............. .......
Mrs. Morella.................. ....... Mr. Owens............. .......
Mr. Shays..................... X Mr. Towns............. X
Mr. Schiff.................... X Mr. Spratt............ .......
Ms. Ros-Lehtinen.............. X Mrs. Slaughter........ X
Mr. Zeliff.................... X Mr. Kanjorski......... X
Mr. McHugh.................... X Mr. Condit............ X
Mr. Horn...................... X Mr. Peterson.......... .......
Mr. Mica...................... X Mr. Sanders........... .......
Mr. Blute..................... X Mrs. Thurman.......... X
Mr. Davis..................... X Mrs. Maloney.......... X
Mr. McIntosh.................. X Mr. Barrett........... X
Mr. Fox....................... X Ms. Collins--MI....... X
Mr. Tate...................... X Ms. Norton............ .......
Mr. Chrysler.................. X Mr. Moran............. .......
Mr. Gutknecht................. X Mr. Green............. X
Mr. Souder.................... X Mrs. Meek............. .......
Mr. Martini................... X Mr. Fattah............ X
Mr. Scarborough............... X Mr. Brewster.......... .......
Mr. Shadegg................... X Mr. Holden............ X
Mr. Flanagan.................. X Mr. Cummings.......... X
Mr. Bass...................... X
Mr. LaTourette................ X
Mr. Sanford................... X
Mr. Ehrlich................... X
------------------------------------------------------------------------
Total: 26 Ayes, 15 Nays.
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, 104th CONGRESS, ROLLCALL
[Offered by Mr. Waxman. Amendment No. 1, amendment in the Nature of a
Substitute]
------------------------------------------------------------------------
Name Aye Name Nay
------------------------------------------------------------------------
Mr. Clinger................... X Mrs. Collins--IL...... X
Mr. Gilman.................... ....... Mr. Waxman............ X
Mr. Burton.................... X Mr. Lantos............ X
Mr. Hastert................... X Mr. Wise.............. .......
Mrs. Morella.................. ....... Mr. Owens............. .......
Mr. Shays..................... X Mr. Towns............. X
Mr. Schiff.................... X Mr. Spratt............ .......
Ms. Ros-Lehtinen.............. X Mrs. Slaughter........ X
Mr. Zeliff.................... X Mr. Kanjorski......... X
Mr. McHugh.................... X Mr. Condit............ X
Mr. Horn...................... X Mr. Peterson.......... .......
Mr. Mica...................... X Mr. Sanders........... .......
Mr. Blute..................... X Mrs. Thurman.......... X
Mr. Davis..................... X Mrs. Maloney.......... X
Mr. McIntosh.................. X Mr. Barrett........... X
Mr. Fox....................... X Ms. Collins--MI....... X
Mr. Tate...................... X Ms. Norton............ .......
Mr. Chrysler.................. X Mr. Moran............. .......
Mr. Gutknecht................. X Mr. Green............. X
Mr. Souder.................... X Mrs. Meek............. .......
Mr. Martini................... X Mr. Fattah............ X
Mr. Scarborough............... X Mr. Brewster.......... .......
Mr. Shadegg................... X Mr. Holden............ X
Mr. Flanagan.................. X Mr. Cummings.......... X
Mr. Bass...................... X
Mr. LaTourette................ X
Mr. Sanford................... X
Mr. Ehrlich................... X
------------------------------------------------------------------------
Total: 16 Ayes, 26 Nays.
amendment in the nature of a substitute to h. res. --, offered by ----
------
Whereas, the Committee has held no hearing on the dispute
relating to the production of these records or on the
production of records by John M. Quinn, David Watkins and
Matthew Moore; be it
Resolved, That the Speaker not certify any report pursuant
to 2 U.S.C. 192 and 194 detailing the refusal of John M. Quinn,
David Watkins, or Matthew Moore to produce papers to the
Committee until such time as the Committee holds a public
hearing on the production of records by John M. Quinn, David
Watkins, and Matthew Moore.
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, 104th CONGRESS, ROLLCALL
[Offered by: Mr. Burton. Motion to move the previous question]
------------------------------------------------------------------------
Name Aye Name Nay
------------------------------------------------------------------------
Mr. Clinger................... X Mrs. Collins--IL...... X
Mr. Gilman.................... ....... Mr. Waxman............ X
Mr. Burton.................... X Mr. Lantos............ X
Mr. Hastert................... X Mr. Wise.............. .......
Mrs. Morella.................. ....... Mr. Owens............. .......
Mr. Shays..................... X Mr. Towns............. X
Mr. Schiff.................... X Mr. Spratt............ X
Ms. Ros-Lehtinen.............. X Mrs. Slaughter........ X
Mr. Zeliff.................... X Mr. Kanjorski......... X
Mr. McHugh.................... X Mr. Condit............ X
Mr. Horn...................... X Mr. Peterson.......... .......
Mr. Mica...................... X Mr. Sanders........... .......
Mr. Blute..................... X Mrs. Thurman.......... X
Mr. Davis..................... X Mrs. Maloney.......... X
Mr. McIntosh.................. X Mr. Barrett........... X
Mr. Fox....................... X Ms. Collins--MI....... X
Mr. Tate...................... X Ms. Norton............ .......
Mr. Chrylser.................. X Mr. Moran............. .......
Mr. Gutknecht................. X Mr. Green............. X
Mr. Souder.................... X Mrs. Meek............. .......
Mr. Martini................... ....... Mr. Fattah............ X
Mr. Scarborough............... ....... Mr. Brewster.......... .......
Mr. Shadegg................... X Mr. Holden............ X
Mr. Flanagan.................. X Mr. Cummings.......... X
Mr. Bass...................... X
Mr. LaTourette................ X
Mr. Sanford................... X
Mr. Ehrlich................... X
------------------------------------------------------------------------
Total: 26 Ayes, 18 Nays.
amendment in the nature of a substitute to h. res. ------, offered by
collins (il)
Whereas, the dispute in question before the Committee on
Government Reform and Oversight (``the Committee'') involves
the production of three categories of records as described in
White House Counsel John M. Quinn's May 3, 1996, letter to
Chairman Clinger, namely
(a) Documents relating to ongoing grand jury
investigations by the Independent Counsel;
(b) Documents created in connection with
Congressional hearings concerning the Travel Office
matter; and
(c) Certain specific confidential internal White
House Counsel office documents including ``vetting''
notes, staff meeting notes, certain other counsel
notes, memoranda which contain pure legal analysis, and
personnel records which are of the type that are
protected by the Privacy Act; be it
Resolved, That the Speaker not certify any report pursuant
to 2 U.S.C. 192 and 194 detailing the refusal of John M. Quinn,
David Watkins, or Matthew Moore to produce papers to the
Committee until such time as the Committee
(1) makes available for public inspection the
following records:
(a) All records of communications related to
the White House Travel Office matter, including
all letters, memoranda, notes of meetings,
phone logs, e-mails, computer entries, video or
audio tapes, calendars, press releases,
diaries, telephone message slips, notes,
talking points, journal entries, opinions,
analyses, summaries, and disks between Members
or staff of the Committee and the Independent
Counsel or staff of the Independent Counsel
(both Mr. Fiske and Mr. Starr) from May 19,
1993 until the present;
(b) All records of communications related to
the preparation for hearings by the Committee
on the White House Travel Office matter,
including all letters, memoranda, notes of
meetings, phone logs, e-mails, computer
entries, video or audio tapes, calendars, press
releases, diaries, telephone message slips,
notes, talking points, journal entries,
opinions, analyses, summaries, and disks
between staff of the Committee including
Barbara Bracher and Barbara Comstock and the
Chairman of the Committee, Members of the
Committee, other staff of the Committee,
Members or staff of the House leadership
including Virginia Thomas, or any other
individual assisting the Committee in the White
House Travel Office matter, or any other
individual including Steven Tabackman, Billy
Ray Dale, any employee of the Department of
Justice, the FBI, or the Independent Counsel
from May 19, 1993 to the present; and
(c) All records of communications related to
the White House Travel Office matter, including
all letters, memoranda, notes of meetings,
phone logs, e-mails, computer entries, video or
audio tapes, calendars, press releases,
diaries, telephone message slips, notes,
talking points, journal entries, opinions,
analyses, summaries, and disks of Members or
staff of the Committee reflecting internal
deliberations of the Committee including staff
notes, staff meeting notices, and other notes
of the Committee or its staff, and personnel
records from May 19, 1993 to the present.
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, 104TH CONGRESS, ROLLCALL
[Offered by: Mr. Clinger. Final passage of House Resolution, proceedings
against John M. Quinn, David Watkins, and Matthew Moore, pursuant to
title 2, U.S. Code, Secs. 192 and 194]
------------------------------------------------------------------------
Name Aye Name Nay
------------------------------------------------------------------------
Mr. Clinger................... X Mrs. Collins--IL...... X
Mr. Gilman.................... X Mr. Waxman............ X
Mr. Burton.................... X Mr. Lantos............ X
Mr. Hastert................... X Mr. Wise.............. X
Mrs. Morella.................. X Mr. Owens............. X
Mr. Shays..................... X Mr. Towns............. X
Mr. Schiff.................... X Mr. Spratt............ X
Ms. Ros-Lehtinen.............. X Ms. Slaughter......... .......
Mr. Zeliff.................... X Mr. Kanjorski......... X
Mr. McHugh.................... X Mr. Condit............ X
Mr. Horn...................... X Mr. Peterson.......... .......
Mr. Mica...................... X Mr. Sanders........... X
Mr. Blute..................... X Mrs. Thurman.......... X
Mr. Davis..................... X Mrs. Maloney.......... X
Mr. McIntosh.................. X Mr. Barrett........... X
Mr. Fox....................... X Miss Collins--MI...... X
Mr. Tate...................... X Ms. Norton............ X
Mr. Chrysler.................. X Mr. Moran............. .......
Mr. Gutknecht................. X Mr. Green............. X
Mr. Souder.................... X Mrs. Meek............. .......
Mr. Martini................... X Mr. Fattah............ X
Mr. Scarborough............... ....... Mr. Brewster.......... .......
Mr. Shadegg................... X Mr. Holden............ X
Mr. Flanagan.................. X Mr. Cummings.......... X
Mr. Bass...................... X
Mr. LaTourette................ X
Mr. Sanford................... X
Mr. Ehrlich................... X
------------------------------------------------------------------------
Totals: 27 Ayes, 19 Nays.
h. res. --
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the Committee on
Government Reform and Oversight, detailing the refusal of John
M. Quinn to produce papers to the Committee on Government
Reform and Oversight, to the United States Attorney for the
District of Columbia, for him to be proceeded against in the
manner and form provided by law; and be it further
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the Committee on
Government Reform and Oversight, detailing the refusal of David
Watkins to produce papers to the Committee on Government Reform
and Oversight, to the United States Attorney for the District
of Columbia, for him to be proceeded against in the manner and
form provided by law; and be it further
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House certify the report of the Committee on
Government Reform and Oversight, detailing the refusal of
Matthew Moore to produce papers to the Committee on Government
Reform and Oversight, to the United States Attorney for the
District of Columbia, for him to be proceeded against in the
manner and form provided by law.
Appendix 1
Congressional Research Service,
The Library of Congress,
Washington, DC, May 8, 1996.
To: Hon. Bill Clinger, Chairman, House Committee on Government Reform
and Oversight.
From: American Law Division.
Subject: Constitutional necessity for appearance before a committee of
a custodian of subpoenaed documents prior to a vote to hold the
custodian in contempt of Congress.
On January 11, 1996, your Committee issued and served
subpoenas duces tecum on the White House for 30 categories of
documents relating to the White House Travel Office matter,
returnable by January 22. Attempts at resolution of the matter
have continued since that time through correspondence, meetings
and telephone communications between you and members of your
Staff and White House officials, in particular John Quinn, the
White House Counsel, who is official with custody and control
of the pertinent documents.
On May 2, you advised Mr. Quinn that the response to the
subpoenas had been unsatisfactory. You noted that a body of
records was being withheld, apparently ``on separation of
powers or Executive Privilege'' grounds, but that no privilege
log had been produced specifying the particular records being
withheld and particular privilege being asserted. You concluded
with a notification that all documents responsive to the
Committee's subpoenas were to be turned over by close of
business May 8, and that for any documents not produced the
President must personally make a written claim of executive
privilege. Finally, you advised Mr. Quinn that you had
scheduled a Committee meeting for the morning of May 9 at which
time you would request a vote to hold him in contempt if the
documents are not supplied.
Mr. Quinn replied by letter on May 3, acknowledging that he
understood that your letter ``threaten[ed] to hold me in
contempt for failing to produce certain materials which
essentially reflect the internal deliberations of the White
House Counsel's Office.'' He pointed to his Office's attempt at
compliance as reflected in the production of 40,000 pages of
documents over the period but noted that compliance was
complicated by two shifts in the original purpose of the
Committee's inquiry, which was to ``investigate what actually
happened in the Travel Office matter.'' The first shift was
``to investigate the numerous investigations that were
conducted of the underlying conduct,'' and then ``to
investigate how we respond to your investigation of the
investigations.'' The White House Counsel then specifically
defined the three categories of documents being withheld:
1. Documents relating to ongoing grand jury
investigations by the Independent Counsel;
2. Documents created in connection with Congressional
hearings concerning the Travel Office matter; and
3. Certain specific confidential internal White House
Counsel office documents including ``vetting'' notes,
staff meeting notes, certain other counsel notes,
memoranda which contain pure legal analysis, and
personnel records which are of the type that are
protected by the Privacy Act.
The letter concluded that the materials sought ``go far
beyond events relating to the Travel Office matter'' and
``presumes to ask for * * * our internal preparation for
Congressional hearings * * *, our private communication with
Members and staff of this Committee, as well as our response to
the Office of Independent Counsel.''
You responded to Mr. Quinn's letter on May 6, informing him
that your May 2 letter was intended to reject all previous
White House offers of compromise. You also explained that the
expansion of the Committee's investigation was the result of
revelations that raised questions whether certain ``actions met
the standards for improper or even criminal conduct.'' You
noted that his description of the categories of documents
withheld was appreciated but that a ``detailed privilege log is
still requested and would have been more useful.'' You
reiterated your demand that all subpoenaed documents be
produced by May 8.
In a letter of response dated May 6, Mr. Quinn asked for a
further opportunity to accommodate the Committee's needs and
``the President's interest in protecting confidential
communications.'' He offered to discuss making available
material related to FBI and IRS inquiries.
You replied on May 7 that you would accept the preferred
documents but that their acceptance would not waive full
compliance with the January 11 subpoenas. You stated that you
would not ``accept the proposition that non-executive
privileged attorney-client relationships or internal
deliberative process privileges exist'', but invited a written
statement ``of any valid executive privilege claims'' ``or a
written claim of Executive Privilege signed by the President,''
to be transmitted to the Committee by 8:00 a.m., May 9. You did
not invite Mr. Quinn to testify at that Committee meeting nor
has he yet asked to be present.
You have inquired whether, on the basis of the proceedings
thus far, there is a constitutional necessity for the Committee
to have Mr. Quinn present at the contempt meeting to
specifically refuse to comply and to have an opportunity to
explain his noncompliance in order to make the proposed
contempt citation legally sufficient. You also ask whether all
other steps legally necessary to support a criminal proceeding
under 2 U.S.C. 192 and 194 have been met. We conclude that it
appears that Mr. Quinn's presence is not necessary and that
your Committee will have met the prima facie requirements for
sustaining a contempt.
discussion
The offense of criminal contempt of Congress under 2 U.S.C.
192, 194, is established by meeting four principal elements:
(1) jurisdiction and authority; (2) legislative purpose; (3)
pertinency; (4) willfulness. See, John C. Grabow Congressional
Investigations: Law and Practice, Ch. 3.4(b) (1988).
1. Jurisdiction and Authority.--The jurisdiction of the
Government Reform and Oversight Committee is broadly defined in
House Rule X, 1(g) and includes oversight of the ``overall
economy, efficiency and management of government operations and
activities, including Federal procurement,'' Rule X 1, (g)(6),
and the Committee has the authority to issue subpoenas for
testimony and documents pursuant to House Rule XI, 2(m)(2). In
this case, the activities of the Travel Office would seem to
fall well within the Committee's jurisdiction and subpoenas for
documents were issued and served in accordance with House and
Committee rules on the appropriate custodians of the documents.
Custody and control has been acknowledged by word and action.
In his May 3 letter Mr. Quinn appears to raise an objection
to the fact that as your Committee's investigation progressed,
its scope increased. However, the courts have not limited
congressional inquiry to its initial stated scope. In Eastland
v. United States Servicemen's Fund, 421 U.S. 391, 509 (1975),
the Supreme Court recognized that a congressional investigation
may lead ``up some `blind alleys' and into non productive
enterprises. To be a valid investigative inquiry there need to
be no predictable end result.'' More recently, in Senate Select
Committee on Ethics v. Packwood, 845 F.Supp. 17, 20-21 (D. D.C.
1994), stay pending appeal denied, 114 S.Ct. 1036 (1994), the
court rejected a claim of overbreath with regard to a subpoena
for a Senator's personal diaries, holding that the Committee's
investigation was not limited in its investigatory scope to its
original demand ``even though the diaries might prove
compromising in respects to the Committee has not yet
foreseen.''
2. Legislative Purpose.--The Supreme Court has made it
clear that Congress does not have to state explicitly what it
intends to do as a result of an investigation. In In re
Chapman, 166 U.S. 661, 669 (1897), the Court upheld the
validity of a resolution authorizing an inquiry into charges of
corruption against certain Senators despite the fact that it
was silent as to what might be done when the investigation was
completed.
In McGrain v. Daugherty, 273 U.S. 135 (1927), the original
resolution that authorized the Senate investigation made no
mention of a legislative purpose. A subsequent resolution for
the attachment of a contumacious witness declared that his
testimony was sought for the purpose of obtaining ``information
necessary as a basis for such legislative and other action as
the Senate may deem necessary and proper.'' The Court found
that the investigation was ordered for a legitimate object. It
wrote:
The only legitimate object the Senate could have in
ordering the investigation was to aid in legislating;
and we think the subject matter was such that the
presumption should be indulged that this was the real
object. An express avowal of the object would have been
better; but in view of the particular subject-matter
was not indispensable * * *.
The second resolution--the one directing witness be
attached--declares that this testimony is sought with
the purpose of obtaining ``information necessary as a
basis for such legislative and other action as the
Senate may deem necessary and proper.'' This avowal of
contemplated legislation is in accord with what we
think is the right interpretation of the earlier
resolution directing the investigation. The suggested
possibility of ``other action'' if deemed ``necessary
or proper'' is of course open to criticism in that
there is no other action in the matter which would be
within the power of the Senate. But we do not assent to
the view that this indefinite and untenable suggestion
invalidates the entire proceeding. The right view in
our opinion is that it takes nothing from the lawful
object avowed in the same resolution and rightly
inferable from the earlier one. It is not as if an
admissible or unlawful object were affirmatively and
definitely avowed.
Moreover, when the purpose asserted is supported by
reference to specific problems which in the past have been, or
in the future may be, the subject of appropriate legislation,
it has been held that a court cannot say that a committee of
the Congress exceeds its power when it seeks information in
such areas. Sheoton v. United States, 404 F.2d 1292, 1297 (D.C.
Cir. 1968), cert. denied, 393 U.S. 1024 (1969). In the past,
the types of legislative activity which have justified the
exercise of the power to investigate have included: the primary
functions of legislating and appropriating, Barenblatt v.
United States, 360 U.S. 109 (1959); the function of deciding
whether or not legislation is appropriate, Quinn v. United
States, 349 U.S. 155, 161 (1955); oversight of the
administration of the laws by the executive branch, McGrain v.
Daugherty, supra, 279 U.S. at 295; and the essential
congressional function of information itself in matters of
national concern, United States v. Rumely, 345 U.S. 41, 43, 45
(1953); Watkins v. United States, supra, 354 U.S. at 200 n.3.
3. Pertinency.--In determining general questions of the
pertinency of inquiries to the subject matter under
investigation, the courts have required only that the specific
inquiries be reasonably related to the subject matter area
under investigation, Sinclair v. United States, supra, 279 U.S.
at 299; Ashland Oil, Inc. v. F.T.C., 409 F.Supp. at 305. An
argument that pertinence must be shown ``with the degree of
explicitness and clarity required by the Due Process Clause''
has been held to confuse the standard applicable in those rare
cases when the constitutional rights of individuals are
implicated by congressional investigations with the far more
common situation of the exercise of legislative oversight over
the administration of the law which does not involve an
individual constitutional right or prerogative. It is, of
course, well established that the court will intervene to
protect constitutional rights from infringement by Congress,
including its committees and members. See, e.g., Yellin v.
United States, 374 U.S. 1089, 143, 144 (1969); Watkins v.
United States, supra; United States v. Ballin, 144 U.S. 1, 5
(1892). But ``[w]here constitutional rights are not violated,
there is no warrant to interfere with the internal procedures
of Congress.'' Exxon Corporation v. F.T.C., 589 F.2d 582, 590
(D.C. Cir. 1978).
4. Willfullness.--Section 192 refers to witnesses who
``willfully make default.'' The courts have long established
that willfullness as used in the statute does not require the
showing of a specific criminal intent, bad faith or moral
turpitude. Braden v. United States, 365 U.S. 431, 437 (1961),
Barsky v. United States, 167 F.2d 241, 251 (D.C. Cir. 1948). It
deals only with intentional conduct. United States v. Bryan,
339 U.S. 323 (1950). The requirement is satisfied if ``the
refusal was deliberate and intentional and was not a mere
inadvertence or an accident.'' Field v. United States. 167 F.2d
97, 100 (D.C. Cir. 1947), cert denied, 332 U.S. 851 (1948).
With particular respect to failures to produce documents called
for by a subpoena duces, tecum, default occurs upon the return
date of the subpoena. United States v. Bryan, supra, 339 U.S.
at 330. The correspondence reviewed above provides a
substantial basis for finding that the withholding of the
subpoenaed documents by Mr. Quinn in intentional.
Finally, with respect to the legal necessity to allow Mr.
Quinn the opportunity to make an in person appearance before
the Committee in order to make his refusal and given an
explanation, we find no authority that establishes a due
process right to such an appearance. Indeed, there is a case
law to the contrary. In Groppi v. Leslie, 404 U.S. 496 (1972),
the Court noted that it decisions recognizing the ``the power
of the Houses of Congress to prevent contemptuous conduct leave
little question that the Constitution imposes no general
barriers to the legislative exercise of such power. 404 U.S. at
499. They acknowledged that some process is due but the nature
of that process would be decided on a case-by-case basis. The
Court admonished that ``[c]ourts must be sensitive to the
nature of a legislative contempt proceeding and `possible
burden on that proceeding' that a given procedure might
entail.'' Id at 500. The Court stated that ``the panoply of
procedural rights that are accorded a defendant in a criminal
trial have never been thought necessary in legislative contempt
proceeding.'' Id. at 501. This was brought home most clearly
several years earlier in United States v. Bryan, supra, a case
involving a subpoena for records under Section 192. The Court
rejected an argument that the statute required a refusal to
take place before a quorum of a committee. The Court explained
that under Section 192, there is no such requirement with
respect to document production and, in fact, is not an
essential element of the offense.
Respondent attempts to equate R.S. Sec. 102 with the
perjury statute considered in the Christoffel case by
contending that it applies only to the refusal to
testify or produce papers before a committee--i.e., in
the presence of a quorum of the committee. But the
statute is not so limited. In the first place, it
refers to the wilful failure by any person ``to give
testimony or to produce papers upon any matter under
inquiry before * * * any committee of either House of
Congress.'' not to the failure to testify before a
congressional committee. And the fact that appearance
before a committee is not an essential element of the
offense is further emphasized by additional language in
the statute, which, after defining wilful default in
the terms set out above, continues, ``or who, having
appeared, refuses to answer any question pertinent to
the question under inquiry, shall be deemed guilty of a
misdemeanor, * * *.'' (Emphasis supplied.)
It is clear that R.S. Sec. 102 is designed to punish
the obstruction of inquires in which the Houses of
Congress or their committees are engaged. If it is
shown that such an inquiry is, in fact, obstructed by
the intentional withholding of documents, it is
unimportant whether the subpoenaed person proclaims his
refusal to respond before the full committee, sends a
telegram to the chairman, or simply stays away from the
hearing on the return day. His statements or actions
are merely evidence from which a jury might infer an
intent to default. A proclaimed refusal to respond, as
in this case, makes that intent plain. But it would
hardly be less plain if the witness embarked on a
voyage to Europe on the day before his scheduled
appearance before the committee.
Of course a witness may always change his mind. A
default does not mature until the return date of the
subpoena, whatever the previous manifestations of
intent to default. But when the Government introduced
evidence in this case that respondent had been validly
served with a lawful subpoena directing her to produce
records within her custody and control, and that on the
day set out in the subpoena she intentionally failed to
comply, it made a prima facie case of wilful default.
339 U.S. at 329-30.
Moreover, it appears that the congressional practice with
respect to appearances of senior Executive Branch officials who
have received document subpoenas is not uniform. In the eight
instances since 1975 in which cabinet level officials have been
held in contempt by a House, a committee, or subcommittee, at
least one, that of Henry Kissinger in 1975, was voted by the
committee in his absence on the basis of a letter for him
refusing to comply on the ground of executive privilege. See
Senate Report No. 94-693, 94th Cong, 2d. Sess. (1975). Three
other instances, involving Secretaries of Energy Duncan (1980)
and Edwards (1981), and Attorney General William French Smith
(1984), give strong indication from press reports that these
individuals also did not appear. See 38 Cong. Q. 1307-08, 1352-
53 (1980) (Duncan); 39 Cong. Q. 1342, 1425 (1981) (Edwards);
Washington Post, Nov. 1, 1984, A-15 (Smith).
We conclude then, that subpoenas are legally sufficient and
the non-appearance of Quinn at the contempt hearing,
particularly in light of the invitation to file a written
explanation of his refusal, and his failure (to date) to
request a personal appearance, would not appear to violate
procedural due process requirements.
Morton Rosenberg,
Specialist in American Public Law.
Appendix 2
subpena duces tecum
By Authority of the House of Representatives of the
Congress of the United States of America
To Custodian of Records, Executive Office of the President
You are hereby commended to produce the things identified
on the attached schedule before the full Committee on
Government Reform and Oversight of the House of Representatives
of the United States, of which the Hon. William F. Clinger, Jr.
is chairman, by producing such things in Room 2157 of the
Rayburn House Office Building, in the city of Washington, on
Monday, January 22, 1996, at the hour of 5:00 p.m.
To Kevin Sabo, Barbara Bracher, Barbara Comstock, or U.S.
Marshals Service to serve and make return.
Witness my hand and the seal of the House of
Representatives of the United States, at the city of
Washington, this 11th day of January, 1996.
William F. Clinger, Jr., Chairman.
Attest: Robin H. Carle, Clerk.
By: Linda G. Nave, Deputy Clerk.
document request to the white house executive office of the president
Definitions and instructions
(1) For the purposes of this request, the word ``record''
or ``records'' shall include but shall not be limited to any
and all originals and identical copies of any item whether
written, typed, printed, recorded, transcribed, punched, taped,
filmed, graphically portrayed, video or audio taped, however
produced or reproduced, and includes but is not limited to any
writing, reproduction, transcription, photograph, or video or
audio recording, produced or stored in any fashion, including
any and all computer entries, memoranda, diaries, telephone
logs, telephone message slips, tapes, notes, talking points,
letters, journal entries, reports, studies, drawings,
calendars, manuals, press releases, opinions, documents,
analyses, messages, summaries, bulletins, e-mail (e-mail are
limited to those specified in particular requests or that have
been reduced to hard copies and are responsive to any of the
outlined requests), disks, briefing materials and notes, cover
sheets or routing cover sheets or any other machine readable
material of any sort whether prepared by current or former
employees, agents, consultants or by any non-employee without
limitation. ``Record'' shall also include redacted and
unredacted versions of the same record.
(2) For purposes of this request, ``The White House Travel
Office matter'' refers to all events leading to the May 19,
1993 firings of the White House Travel Office employees and
includes all information provided about the White House Travel
Office and any employees of the White House Travel Office at
any time from January 1, 1993 to the present; the activities of
Harry Thomason, Darnell Martens and Penny Sample at the White
House; all allegations of wrongdoing concerning the Travel
Office employees; actions taken by the Federal Bureau of
Investigation and the Department of Justice, both prior to and
after the firings (including the actions by any field office
personnel and any White House involvement in coordination or
attendance of interviews), including but not limited to U.S. v.
Billy Ray Dale; all investigations and subsequent reviews of
the Travel Office firings by any agency including, but not
limited to the White House Management Review, the FBI Weldon
Kennedy/I.C. Smith review, the FBI OPR review, the Justice
Department OPR review, the IRS internal review, the Treasury
Inspector General review, the General Accounting Office review,
the proposed U.S. House of Representatives ``Resolution of
Inquiry'' considered and voted on in the House Judiciary
Committee in July 1993; and all actions relating to or
describing the criminal investigations into the White House
Travel Office matter including any subsequent action or
activities of any kind as a result of the above mentioned
events by the White House, the Treasury Department, the IRS,
the General Services Administration, the General Accounting
Office, the Federal Bureau of Investigation, the Independent
Counsel (both Mr. Fiske and Mr. Starr) and the Department of
Justice up to the date of this request unless otherwise
limited.
(3) For purposes of this request, the terms ``refer'' or
``relate'' and ``concerning'' as to any given subject means
anything that constitutes, contains, embodies, identifies,
deals with, or is in any manner whatsoever pertinent to that
subject, including but not limited to records concerning the
preparation of other records.
(4) For purposes of this request ``White House'' refers to
any and all employees in the Executive Office of the President;
employees in the Office of the First Lady; employees in the
Office of the Vice-President; consultants, whether paid or not
paid; volunteers; and all other employees of the executive
branch assigned to, or working at the White House, regardless
of designation describing their service at the White House.
(5) For purposes of this request any records requested
includes all records in the physical possession of the White
House, all records in the possession of any custodians (such as
Mr. Kendall) of White House documents, any records maintained
in the White House residence, any documents which have been
placed into any manner of storage. Unless a time period is
specifically identified, the request includes all documents to
the present.
Documents Requested
1. Any records related to the White House Travel Office
matter or the White House Project from the following
individuals and/or offices (which would also include all
assistants and secretaries): The White House Counsel's office,
Maggie Williams, Capricia Marshall, Lisa Caputo, Neel
Lattimore, Isabelle Tapia, Mary Beck, Vince Foster, Deborah
Gorham, Linda Tripp, Bill Kennedy, David Watkins, Catherine
Cornelius, Clarissa Cerda, Jeff Eller, Patsy Thomason, Ricki
Seidman, Mark Gearan, Dwight Holton, Andre Oliver, Todd Stern,
Jean Charleton, Brian Foucart, Janet Green, Beth Nolan,
Clifford Sloan, Mack McLarty, Bill Burton, David Dreyer, Anne
Edwards, Rahm Emanuel, David Leavey, Bruce Lindsey, Darnell
Martens, Matt Moore, Dee Myers, Lloyd Cutler, Jane Sherburne,
Abner Mikva, Mark Fabiani, Tom Hufford, Roy Neel, John Podesta,
Rita Lewis, David Gergen, Craig Livingston, Marjorie Tarmey,
Ira Magaziner, Bernard Nussbaum, Jennifer O'Connor, Penny
Sample, George Stephanopoulos, Frank Stidman, Harry Thomason,
Lorraine Voles, Jeremy Gaines, Dale Helms, David Gergen, Joel
Klein, Neil Eggleston, Steve Neuwirth, Cheryl Mills, Jurg
Hochuli, Andris Kalnins, Matt Moore, Lorraine Voles and Bruce
Overton.
2. All records related to the General Accounting Office
review of the White House Travel Office.
3. All records related to the Justice Department's Office
of the White House Travel Office.
4. Any records related to American Express obtaining the
White House Travel Office business including all records
related to any contact with GSA or American Express up to the
time of this letter.
5. All records related to the Peat Marwick review of the
White House Travel Office and any subsequent reviews such as
that performed by Tichenor and Associates and any records
reflecting any contacts, communications or meetings with any
Peat Marwick attorneys or officials to the present.
6. Any records of any contacts or communications related to
any IRS matter regarding UltraAir and/or any IRS matter
regarding any other White House charter company, any IRS matter
related to any of the fired seven travel office employees, or
any other IRS matter related to the White House Travel Office
and any records of contact or communications with IRS
Commissioner Peggy Richardson by Mack McLarty, Webb Hubbell,
Bruce Lindsey, Vince Foster, Bill Kennedy, or any member of the
White House Counsel's office from May 1, 1993 to the present.
7. All records related to the Treasury Inspector General's
investigation of the IRS audit of UltrAir. (The investigation
requested by Rep. Frank Wolf in May 1993).
8. Any records relating to any proposal to use independent
financing or unused Presidential Inaugural Committee funds to
assists anyone on the White House staff, out source White House
duties or tasks, or otherwise assist White House operations.
This would include records regarding any efforts both inside
and outside the White House to explore evaluate or implement
such proposal. It would also include records of any subsequent
analysis of such efforts.
9. Any records relating to or mentioning the finding of the
note in Mr. Foster's briefcase or any other location following
his death, any Travel Office records of Mr. Foster's and any
records relating to the finding of or existence of or
explanations of any files of Mr. Foster's relating to the White
House Travel Office matter, Special Government Employees,
issues of nepotism, the use of volunteers or any efforts to
obtain Office of Legal Counsel opinions on any of these matters
and any records of any contacts with Mr. James Hamilton, Lisa
Foster, Harry Thomason, Susan Thomases, James Lyons about
Vincent Foster's records.
10. Any records relating to Mr. Thomason, Mr. Martens, Ms.
Penny Sample, Ms. Betta Carney and Mr. Steve Davison and any
other World Wide Travel employees including, but not limited
to, all records indicating what these individuals did while at
the White House, any documents relating to issues arising out
of any actions they took while at the White House, any
personnel records, requests for passes or pass forms, requests
for office space and any forms related to office space, phones
or other equipment,and any records relating to any actions
taken by these individuals regarding the White House Travel
Office. (For Ms. Sample, this request would also include all
trip files for trips she had any involvement with while at the
White House.)
11. All records about problems or allegations or wrongdoing
in the Travel Office from January 20, 1993 to present.
12. All tapes or videotapes produced by Mr. Thomason or any
associates of his for the White House, the Bill Clinton for
President Committee or the Clinton/Gore '92 Committee and all
billings and financial statements relating to such work.
13. Any tapes, tape recordings or videotapes of any kind
related to the White House Travel Office, the White House
Travel Office employees, or any allegations of wrongdoing by
anyone in the White House Travel Office or any air charter
company or other business doing business with the White House
Travel Office.
14. Calendars of the following individuals: Bill Kennedy,
Vince Foster, Mack McLarty, Ricki Seidman, John Podesta, Todd
Stern, Dwight Holton, Andre Oliver, Brian Foucart, Bruce
Lindsey, Jack Kelly, Matt Moore, Beth Nolan, Cliff Sloan,
Bernard Nussbaum, David Watkins, Catherine Cornelius, Jennifer
O'Connor, George Stephanopoulos, Dee Dee Myers, Clarissa Cerda,
Jeff Eller, Patsy Thomasson, Mark Gearan, Leon Panetta, Harry
Thomason, and Maggie Williams indicating any meetings, messages
or discussions with any of these same named individuals among
or between each other and among or between these names
individuals and Susan Thomases, Darnell Martens, Webb Hubbell,
(Harry or Linda Bloodworth-Thomason, Larry Herman (or any other
KPMG partners or employees) or James Lyons between May 1 and
July 31, 1993.
15. Phone records (including message slips, (phone logs,
pages, or any White House records of phone calls) for the same
named individuals in paragraph #14 above, making or receiving
calls from any of the same named individuals between May 1 and
July 31, 1993.
16. All calendars and phone records, message slips or phone
logs, of the following individuals, made to or from any of the
following individuals, from May 1, 1995 through November 30,
1995 regarding the White House Travel Office matter or the case
of U.S. v. Billy Ray Dale: Jane Sherburne, John Yarowsky,
Natalie Williams, Miriam Nemitz, Judge Mikva, Maggie Williams,
Capricia Marshall, patsy Thomasson, John Podesta, Catherine
Cornelius, Mark Gearan, Bruce Lindsey, David Watkins, Janet
Greene, Betsey Wright, Webb Hubbell, Bill Kennedy, Jeff Eller,
Neil Eggleston, Cliff Sloan, Mike Berman, Harry Thomason,
Darnell Martens, Catherine Cornelius, John Podesta, Beth Nolan,
James Hamilton, Susan Thomases, James Lyons, Roy Neel, John
Gaughan, any employee of the Military office, Larry Herman,
John Shutkin, any employee of KPMG Peat Marwick, Billy Ray
Dale, Barney Brasseux, John Dreylinger, Ralph Maughan, John
McSweeney, Robert VanEimeren, Gary Wright, David Bowie; Pam
Bombardi, Tom Carl, Stuart Goldberg, Lee Radek, Jamie Gorelick,
Adam Rossman, David Sanford.
17. All records related to Travel Office funds and/or
documents being placed in the White House military office and
all records of any inquiries about related events.
18. All records of any contacts with David Watkins or Bill
Kennedy from the time they ended their employment at the White
House to the present.
19. All Executive order documents located in Mr. Foster's
Travel office files and/or his briefcases.
20. All records related to Harry Thomason and/or Darnell
Martens discussing or pursuing contacts with GSA, all records
related to ICAP, and any record of the White House Counsel's
office analyzing the issues raised by Mr. Thomason and Mr.
Martens actions at the White House.
21. All records related to any sexual harassment complaints
about Mr. David Watkins during the Clinton/Gore 1992 campaign
or during his tenure at the White House and any records of
meetings, actions, or communications regarding such complaints
and all records related to the $3,000 per month retainer
provided to Mr. Watkins by the Clinton for President campaign.
22. All records of any contacts, communications or meetings
regarding the ``Watkins memo'' produced to the Committee on
January 3, 1996 and the chain of custody of this memo.
23. All indices or catalogues of Vincent Foster's office,
tapes, computer and documents and who received each document
from his office.
24. All records relating to the actions of Mr. Watkins at
the White House regarding the use of White House helicopters,
the names of all individuals in the two helicopters used in May
1994 for Mr. Watkins golf outing and all records relating to
his departure from the White House.
25. All e-mail to or from the following individuals from
May 7, 1993 through May 28, 1993, concerning the White House
Travel Office matter as defined in paragraph (2), the White
House project, or the Presidential Inaugural Commission: David
Watkins, Patsy Thomasson, Jennifer O'Connor, Brian Foucart,
Peter Siegel, Paul Toback, Catherine Cornelius, Clarissa Cerda,
Dee Dee Myers, David Leavey, George Stephanopoulos, Mack
McLarty, Ricki Seidman, Bill Burton, Bruce Lindsey, Harry
Thomasson, Darnell Martens, Maggie Williams, Capricia Marshall,
Lisa Caputo, Mark Gearan, Bernard Nussbaum, Isabelle Tapia,
Vincent Foster, Deborah Gorham, Linda Tripp, Betsy Pond, Bill
Kennedy, John Podesta, Dwight Holton, Andre Oliver, Todd Stern,
Jean Charleton, Beth Nolan, Clifford Sloan, Rahm Emanuel,
Lorraine Voles, and Craig Livingstone.
26. All e-mail to or from the following individuals from
June 26, 1993 through August 1, 1993, concerning the White
House Travel Office matter as defined in paragraph (2), the
White House project, or the Presidential Inaugural Commission:
Vincent Foster, Mack McLarty, David Watkins, Patsy Thomasson,
John Podesta, Todd Stern, Dwight Holton, Andre Oliver, Bernard
Nussbaum, Bruce Lindsey, Ricki Seidman, Mark Gearan, Maggie
Williams, Lisa Caputo, George Stephanopoulos and Cliff Sloan.
27. All e-mail to or from the following individuals from
September 1, 1993 through December 20, 1993, concerning the
White House Travel Office matter as defined in paragraph (2),
the White House project, or the Presidential Inaugural
Commission: Mack McLarty, David Watkins, Patsy Thomasson, Cliff
Sloan, Neil Eggleston, Bruce Lindsey, John Podesta, Todd Stern,
Ricki Seidman, Maggie Williams, Mark Gearan, and George
Stephanopoulos.
28. All e-mail to or from the following individuals from
May 1, 1994 through September 8, 1994, concerning the White
House Travel Office matter as defined in paragraph (2), the
White House project, or the Presidential Inaugural Commission:
Neil Eggleston, Lloyd Cutler, Joel Klein, John Podesta, Jane
Sherburne, Sheila Cheston, Maggie Williams and Todd Stern.
29. All records relating to the matter of United States of
America v. Billy Ray Dale, any investigation by the Justice
Department into the White House Travel Office matter as defined
in paragraph (2), and all records relating to Billy Ray Dale as
well as any records of talking points prepared about Mr. Dale
to the present.
30. All records related to the gathering of documents for
any review or investigation related to the White House Travel
Office matter as defined in paragraph (2). This includes, but
should not be limited to, the White House Management Review,
the IRS internal review, the GAO Travel OFfice review, the OPR
investigation, the Public Integrity investigation, the Treasury
IG investigation, the FBI internal review, Independent Counsel
Robert Fiske, and Independent Counsel Kenneth Starr.
manner of production
Please provide a document production log for all documents
produced with a description of the document, the identity of
the individual who created or authored the document, identify
the individual and location where each document was found,
identify any handwriting of any notes or notations on any
document and the author of any such notations. In addition,
please indicate for each item requested if you know of any
document which would be responsive and previously existed but
you no longer have access to or it has been destroyed. For any
documents which have been destroyed please identify the
document and who destroyed it. In addition, for all documents
produced to date, as well as any additional items, identify all
documents which originated in Vincent Foster's office.
Appendix 3
Subpena Duces Tecum
By Authority of the House of Representatives of the
Congress of the United States of America
To David Watkins
You are hereby commanded to produce the things identified
on the attached schedule before the full Committee on
Government Reform and Oversight of the House of Representatives
of the United States, of which the Hon. William F. Clinger, Jr.
is chairman, by producing such things in Room 2154 of the
Rayburn House Office Building, in the city of Washington, on
Thursday, January 11, 1996 at the hour of 2:00 p.m.
To Kevin Sabo, Barbara K. Bracher, or any U.S. Marshall to
serve and make return.
Witness my hand and the seal of the House of
Representatives of the United States, at the city of
Washington, this Fifth day of January, 1996
William F. Clinger, Jr. Chairman,
Attest: Robin H. Carle, Clerk.
DOCUMENT REQUESTS TO DAVID WATKINS
Definitions and instructions
(1) For the purposes of this request, the word ``record''
or ``records'' shall include but shall not be limited to any
and all originals and identical copies of any item whether
written, typed, printed, recorded, transcribed, punched, taped,
filmed, graphically portrayed, video or audio taped, however,
produced or reproduced, and includes but is not limited to any
writing, reproduction, transcription, photograph, or video or
audio recording, produced or stored in any fashion, including
any and all computer entries, memoranda, diaries, telephone
logs, telephone message slips, tapes, notes talking
points,letters, journal entries, reports, studies, drawings,
calendars, manuals, press releases, opinions, documents,
analyses, messages, summaries, bulletins, e-mail disks,
briefing materials and notes, cover sheets or routing cover
sheets or any other machine readable material of any sort
whether prepared by current or former employees, agents,
consultants or by any non-employee without limitation.
``Record'' shall also include redacted and unredacted versions
of the same record.
(2) For purposes of this request, ``The House Travel Office
matter'' refers to all events leading to the May 19, 1993
firings of the White House Travel Office; any and all
information provided about the White House Travel Office and
any employees of the White House Travel Office at any time from
January 1, 1991 to the present; any and all records regarding
any allegations of wrongdoing by Travel Office employees; all
actions taken both prior to and after the firings by the
Federal Bureau of Investigation (including the actions taken by
any field office personnel and any White House involvement in
coordinating or sitting in on interviews) and the Department of
Justice; all reviews of the firings conducted by any agency
including, but not limited to the White House Management
Review, the FBI Weldon Kennedy/I.C.Smith review, the FBI OPR
review, the Justice Department OPR review, the General
Accounting Office review, the proposed U.S. House of
Representatives ``Resolution of Inquiry'' considered and voted
on in the House Judiciary Committee in July 1993, and any other
documents related to these matters; and all actions relating to
or describing the investigation and subsequent acts and
activities of any kind by the White House, the Treasury
Department, the IRS, the General Services Administration, the
General Accounting Office, the Federal Bureau of Investigation,
the Independent Counsel (both Mr. Fiske and Mr. Starr) and the
Department of Justice up to the date of this letter.
(3) For purposes of this request, the terms ``refer'' or
``relate'' and ``concerning'' as to any given subject means
anything that constitutes, contains, embodies, identifies,
deals with, or is in any manner whatsoever pertinent to the
subject, including but not limited to records concerning the
preparation of other records.
(4) For purposes of this request ``White House'' refers to
any and all employees of the Executive Office of the President;
the First Lady and her office; the President; the Vice-
President; consultants, whether paid or not paid; volunteers;
and all employees of the executive branch assigned to, or
working at the White House, regardless of designation
describing the service at the White House.
(5) For purposes of this request any records requested
included all records which you have in your physical possession
as well as any records to which you have access, any records
which were formerly in your possession or which you have put in
storage or anyone has put in storage on your behalf. Unless a
time period is specifically identified, the request includes
all documents to the present.
DOCUMENTS REQUESTED
1. Any records related to the White House Travel Office
matter from January 1991 to present.
2. All records related to the White House Project.
3. All records related to any efforts to use Presidential
Inaugural Commission funds for any White House purposes or for
any outside employees who would assist the White House in any
manner.
4. All records related to the General Accounting Office
review of the White House Travel Office.
5. All records related to the Justice Department's Office
of Professional Responsibility review of the White House Travel
Office or any records related to the justice Department's
Office of Public Integrity investigation or the Justice
Department's Independent Counsel investigation (either Mr.
Fiske or Mr. Starr).
6. Any records related to American Express obtaining the
White House Travel Office business including all records
related to any contact with GSA or American Express up to the
time of this letter relating to the original contract and
subsequent renewals by the White House.
7. All records (and subsequent contacts) related to the
Peat Marwick review of the White House Travel Office and any
subsequent reviews such as that performed by Tichenor and
Associates.
8. Any records related to any actions taken by the IRS
regarding UltrAir and other White House charter company, any of
the fired seven travel office employees, or any other IRS
matter related to the White House Travel Office.
9. All records related to the Treasury Inspector General's
investigation of the IRS audit of UltrAir completed in March
1994.
10. Any records relating to any notes or files of Vincent
Foster, any Travel Office records of Mr. Foster's and any
records relating to the finding of or existence of or
explanations of any files of Mr. Foster's relating to the White
House Travel Office matter.
11. Any records relating to Mr. Thomason, Mr. Martens, Ms.
Penny Sample, Ms. Betta Carney and Mr. Steve Davison and any
other World Wide Travel employees or Air Advantage employees
including, but not limited to, all records indicating what
these individuals did while at the White House, any documents
relating to issues arising out of any actions they took while
at the White House, any personnel records, requests for passes
or pass forms, requests for office space and any documents or
notes related to office space, phones or other equipment, and
any records relating to any actions taken by these individuals
regarding the White House Travel Office.
12. All videotapes produced by Mr. Thomason or any
associates of his for the White House, the Bill Clinton for
President Committee or the Clinton/Gore '92 Committee and all
billings and financial statements relating to such work.
13. Any documents, including draft or final Executive
Orders connected with transportation, travel, GSA, procurement,
contracting, the White House Travel Office operations or The
White House Project or any efforts to use an outside source of
funding to assist the White House staff.
14. All records related to Harry Thomason and/or Darnell
Martens, all records related to ICAP, all records related to
any Executive Orders connected with any changes in contracting
or procuring or related to National Performance Review efforts.
15. All records related to your employment and/or any
consultant work you have done with any Clinton campaign
committee from 1991 to the present.
16. All records of all contacts and communications with any
past or present White House personnel, campaign personnel, or
Betsey Wright, Skip Rutherford, Mike Berman, Webster Hubbell,
Susan Thomases, James Lyons, Harry Thomason, Darnell Martens,
Markie Post, Jack Palladino or any attorney representing the
President or the First Lady from June 1, 1995 to present.
17. All calendars, phone logs, message slips and phone
bills from January 1991 to the present.
18. All records relating to any complaints against you for
sexual harassment or inappropriate actions by any employee,
volunteer or contractor for any Clinton campaign or the White
House office. (For any complaints from the White House office
beginning on January 20, 1993 and thereafter).
19. All records relating to your $3,000 month retainer or
any other retainers or payments form the Clinton for President
Committee from June 1994 to the present.
20. All records relating to your actions during your tenure
at the White House regarding the use of White House helicopters
and all records relating to your departure from the White
House.
21. All records pertaining to the employment and/or
resignation of Patsy Thomasson, Janet Greene, Jean Charleton,
Brian Foucart.
MANNER OF PRODUCTION
Please provide a document production log for all documents
produced. In addition, please indicate for each item requested
if you know of any document which you know to have existed but
you no longer have access to or it has been destroyed. For any
documents which have been destroyed please identify the
document and who destroyed it.
Appendix 4
Subpena Duces Tecum
By Authority of the House of Representatives of the
Congress of the United States of America.
To Matthew Moore.
You are hereby commanded to produce the things identified
on the attached schedule before the full Committee on
Government Reform and Oversight of the House of Representatives
of the United States, of which the Hon. William F. Clinger, Jr.
is chairman, by producing such things in Room 2157 of the
Rayburn House Office Building, in the city of Washington, on
Monday, February 26 1996, at the hour of 5:00 pm.
To Kevin Sabo, Barbara Bracher, Barbara Comstock, or U.S.
Marshals Service to serve and make return.
Witness my hand and the seal of the House of
Representatives of the United States, at the city of
Washington, this 6th day of February, 1996.
William F. Clinger, Jr. Chairman.
Attest: Robin H. Carle, Clerk.
Document requests to matthew moore
Definitions and instructions
(1) For the purposes of this request, the word ``record''
or ``records'' shall include but shall not be limited to any
and all originals and identical copies of any item whether
written, typed, printed, recorded, transcribed, punched, taped,
filmed , graphically portrayed, video or audio taped, however
produced or reproduced, and includes but is not limited to any
writing, reproduction, transcription, photograph, or video or
audio recording, produced or stored in any fashion, including
any and all computer entries, memoranda, diaries, telephone
logs, telephone message slips, tapes, notes, talking points,
letters, journal entries, reports, studies, drawings,
calendars, manuals, press releases, opinions, documents,
analyses, messages, summaries, bulletins, e-mail, disks,
briefing materials and notes, cover sheets or routing cover
sheets or any other machine readable material of any sort
whether prepared by current or former employees, agents,
consultants or by any non-employee without limitation.
``Record'' shall also include redacted and unredacted versions
of the same record.
(2) For purposes of this request, ``The White House Travel
Office matter'' refers to all events leading to the May 19,
1993 firings of the White House Travel Office employees and
includes all information provided about the White House Travel
Office and any employees of the White House Travel Office at
any time from January 1, 1993 to the present; the activities of
Harry Thomason, Darnell Martens and Penny Sample at the White
House; all allegations of wrongdoing concerning the Travel
Office employees; actions taken by the Federal Bureau of
Investigation and the Department of Justice, both prior to and
after the firings (including the actions by any field office
personnel and any White House involvement in coordination or
attendance of interviews), including but not limited to U.S. v.
Billy Ray Dale; all investigations and subsequent reviews of
the Travel Office firings by any agency including, but not
limited to the White House Management Review, the FBI Weldon
Kennedy/I.C. Smith review, the FBI OPR review, the Justice
Department OPR review, the IRS internal review, the Treasury
Inspector General review, the General Accounting Office review,
the proposed U.S. House of Representatives ``Resolution of
Inquiry'' considered and voted on in the House Judiciary
Committee in July 1993; and all actions relating to or
describing the criminal investigations into the White House
Travel Office matter including any subsequent action or
activities of any kind as a result of the above mentioned
events by the White House, the Treasury Department, the IRS,
the General Services Administration, the General Accounting
Office, the Federal Bureau of Investigation, the Independent
Counsel (both Mr. Fiske and Mr. Starr) and the Department of
Justice up to the date of this request unless otherwise
limited.
(3) For purposes of this request, the terms ``refer'' or
``relate'' and ``concerning'' as to any given subject means
anything that constitutes, contains, embodies, identifies,
deals with, or is in any manner whatsoever pertinent to that
subject, including but not limited to records concerning the
preparation of other records.
(4) For purposes of this request ``White House'' refers to
any and all employees of the Executive Office of the President;
the First Lady and her office; the President; the Vice-
President; consultants, whether paid or not paid; volunteers;
and all employees of the executive branch assigned to, or
working at the White House, regardless of designation
describing their service at the White House.
(5) For purposes of this request any records requested
included all records which you have in your physical possession
as well as any records to which you have access, any records
which were formerly in your possession or which you have put in
storage or anyone has put in storage on your behalf. Unless a
time period is specifically identified, the request includes
all documents to the present.
documents requested
1. Any records related to the White House Travel Office
matter from January 1993 to present.
2. All records related to the White House Project which
involved both improving the ``staging'' of Presidential events
as well as finding a way to utilize excess Presidential
Inaugural Commission funds for outsourcing White House
assistance or providing assistance to the White House.
3. All records related to any efforts to use Presidential
Inaugural Commission funds for any White House purposes or for
any outside employees who would assist the White House in any
manner.
4. All records related to the General Accounting Office
review of the White House Travel Office.
5. All records related to the Justice Department's Office
of Professional Responsibility review of the White House Travel
Office or any records related to the Justice Department's
Office of Public Integrity investigation or any other Justice
Department investigation.
6. Any records related to American Express obtaining the
White House Travel Office business including all records
related to any contact with GSA or American Express up to the
time of this letter relating to the original contract and
subsequent renewals by the White House.
7. All records related to the KPMG Peat Marwick review of
the White House Travel Office and any subsequent reviews such
as that performed by Tichenor and Associates, including all
contacts with any KPMG Peat Marwick employee.
8. Any records related to any actions taken by the IRS
regarding UltrAir and any other White House charter company,
any of the fired seven travel office employees, or any other
IRS matter related to the White House Travel Office and any
records of contacts or communications with IRS Commissioner
Peggy Richardson.
9. All records related to the Treasury Inspector General's
investigation of the IRS audit of UltrAir completed in March
1994.
10. Any records relating to any notes or files of Vincent
Foster's office, any Travel Office records of Mr. Foster's and
any records relating to the finding of or existence of or
explanations of any files or notes of Mr. Foster's relating to
the White House Travel Office matter.
11. Any records relating to Mr. Harry Thomason, Mr. Darnell
Martens, Ms. Penny Sample, Ms. Betta Carney and Mr. Steve
Davison and any other World Wide Travel employees or Air
Advantage employees including, but not limited to, all records
indicating what these individuals did while at the White House,
any documents relating to issues arising out of any actions
they took while at the White House, any personnel records,
requests for passes or pass forms, requests for office space
and any documents or notes related to office space, phones or
other equipment, and any records relating to any actions taken
by these individuals regarding the White House Travel Office.
12. All tapes or videotapes produced by Mr. Thomason or any
associates of his for the White House, the Bill Clinton for
President Committee or the Clinton/Gore '92 Committee and all
billings and financial statements relating to such work.
13. Any tapes, tape recordings, or videotapes of any kind
related to the White House Travel Office matter, any employee
of the White House Travel Office or any allegations of
wrongdoing by any employee of the White House Travel Office or
any air charter company doing business with the White House
Travel Office.
14. Any documents, related to the Federal Aviation
Administration, transportation, travel, GSA, procurement,
contracting, the White House Travel Office operations or The
White House Project or any efforts to use an outside source of
funding to assist the White House staff.
15. All records related to Harry Thomason and/or Darnell
Martens, all records related to ICAP, all records related to
any Executive Orders connected with any changes in contracting
or procuring or related to National Performance Review efforts.
16. All records of all contacts and communications with
anyone in the White House Counsel's office, Mack McLarty, Bruce
Lindsey, Harold Ickes, Mark Gearan, Webster Hubbell, Susan
Thomases, James Lyons, Harry Thomason, Mike Berman, Darnell
Martens, John Podesta, Betsey Wright, Todd Stern, Maggie
Williams, Patsy Thomasson, Bruce Overton, Catherine Cornelius,
Clarissa Cerda, George Stephanopoulos, David Dreyer, David
Watkins or Jeff Eller from June 1, 1995 to present.
17. All calendars from May 1, 1993 to July 31, 1993
indicating any meetings, messages or discussions with any of
the following individuals: Bill Kennedy, Vince Foster, Mack
McLarty, Ricki Seidman, John Podesta, Todd Stern, Dwight
Holton, Andre Oliver, Brian Foucart, Bruce Lindsey, Jack Kelly,
Matt Moore, Beth Nolan, Cliff Sloan, Bernard Nussbaum, David
Watkins, Catherine Cornelius, Jennifer O'Connor, George
Stephanopoulos, Dee Dee Myers, Clarissa Cerda, Jeff Eller,
Patsy Thomasson, Mark Gearan, Leon Panetta, Harry Thomason,
Darnell Martens, Susan Thomases, Webb Hubbell, Linda
Bloodworth-Thomason, Larry Herman (or any other KPMG partner or
employee), James Lyons and Maggie Williams.
18. All phone logs and message slips for the same named
individuals in paragraph #17 above, making or receiving calls
from any of the same named individuals from May 1, 1993 through
July 31, 1993.
19. All records relating to any complaints against David
Watkins for sexual harassment or inappropriate actions by any
employee, volunteer or contractor for any Clinton campaign or
the White House office. (For any complaints from the White
House office beginning on January 20, 1993 and thereafter.)
20. All records relating to the ``Watkins memo'' found in
Patsy Thomasson's files on December 29, 1995 and produced to
the Committee on January 3, 1996 and all records of any
contacts, communications, or meetings related to the finding of
this memo.
21. All records relating to the matter of United States of
America v. Billy Ray Dale and any investigation related to the
Justice Department investigation of the White House Travel
Office matter.
22. All records detailing any alleged wrongdoing by any
employee of the White House Travel Office and all records of
any communications or contacts to that effect.
23. All records relating to Travel Office records and funds
being placed in a military office safe.
24. Any records relating to any of the above requests that
you have maintained at any time outside the White House or in
any storage facility.
MANNER OF PRODUCTION
Please provide a document production log for all documents
produced, identifying the document, identifying the handwriting
of any notes or notations, identifying where this document
comes from. In addition, please indicate for each item
requested if you know of any document which you know to have
existed but you no longer have access to or it has been
destroyed. For any documents which have been destroyed please
identify the document and who destroyed it.
William F. Clinger.
DISSENTING VIEWS
summary
The failure of the Committee to provide any semblance of
fundamental due process and fairness, as well as its refusal to
make any effort to accommodate the interests of the Executive
Branch, not only renders H.Res. ____ invalid, but also
demonstrates a blatant contempt for the rule of law, and a
repugnance to our Constitutional democracy. The willingness of
the Majority to deprive three individuals of their personal
liberty for transparent political goals demeans the
Constitutional authority of Congressional oversight. For these
reasons we strongly oppose the resolution.
From January 5, 1996 through February 7, 1996, the
Committee sent out 36 subpoenas regarding the White House
Travel Office matter. On January 5, 1996, the Committee sent a
subpoena to David Watkins. On January 11, 1996, the Committee
sent a far-reaching and broad subpoena to the Custodian of
Records at the White House Office of Administration and a
similar subpoena to the Custodian of Records at the Executive
Office of the President. Both subpoenas were received by Jane
C. Sherburne. On February 6, 1996, the Committee sent a
subpoena to Matthew Moore.
In correspondence to the Committee, John Quinn, Counsel to
the President, has raised significant issues of privilege
regarding three categories of documents subpoenaed from the
White House. Mr. Quinn argued that (1) turning over these
documents to the Committee would chill the deliberative process
of the President's Counsel and the President's closest
advisors, (2) the documents requested are not pertinent to the
Committee's investigation, and (3) the Committee has refused
any effort to reach an accommodation on these documents.
David Watkins and Matthew Moore have both argued that a
limited number of draft documents in their possession are
covered by attorney-client and attorney work product
privileges.
Despite numerous requests over a three month period by the
President's counsel to resolve all remaining White House Travel
Office issues, the Chairman has made no effort to accommodate
the concerns of the Executive Branch. On the other hand, Mr.
Quinn has made several reasonable proposals to provide the
Committee with access to confidential documents in order to
accommodate the legitimate needs of the Committee.
Chairman Clinger has refused the request of the Ranking
Minority Member, Cardiss Collins, to have a hearing on these
important and complex issues before voting on the contempt
citation. Such a hearing is not only legally required, but
would have helped Members to resolve the legal and factual
issues in dispute.
The Committee never considered or specifically overruled
claims of privilege before approving the contempt resolution,
never specifically informed the subjects of the contempt
resolution that their claims of privilege had been overruled,
and never ordered them to comply with the Committee's
determination prior to approving the contempt resolution.
The real motivation of this contempt resolution is a
carefully orchestrated effort by the Republican leadership to
embarrass the President in the closing months of this election
year. Specifically, the resolution is in response to a
memorandum from Representatives Bob Walker and Jim Nussle to
all House Full and Subcommittee Chairmen dated April 23, 1996.
That memorandum follows:
Memorandum
To: All House Full and Subcommittee Chairmen.
From: Bob Walker and Jim Nussle.
Subject: Request for information--URGENT.
Date: April 23, 1996.
On behalf of the House Leadership, we have been asked to
cull all committees for information that you already have on
three subjects listed below. We are compiling information for
packaging and presentation to the Leadership for determining
the agenda. You are a tremendous source for this project. The
subjects are:
Waste, Fraud and Abuse in the Clinton Administration
Influence of Washington Labor Union Bosses/Corruption
Examples of Dishonesty or ethical lapse in the
Clinton Administration
Please have your staff review pertinent GAO reports,
Inspector General reports or committee investigative materials
or newspaper articles for departments and agencies within your
jurisdiction that expose anecdotes that amplify these areas.
Send your material to Ginni Thomas at H-226, U.S. Capitol
or fax it to 6-1116. We need this information as soon as
possible--no later than close of business on Friday, April 26.
On May 2, 1996, only nine days after the Republican
leadership issued this memorandum, the Committee Chairman
announced the scheduling of a full committee meeting for May 9,
to consider the contempt resolution. There was no consultation
with the Minority Members of the Committee or the White House
about the contempt resolution before sending out the Committee
meeting notice on May 2. The failure to even consult with the
Minority Members of this Committee about an issue of such
importance strongly suggests that this resolution was
politically motivated.
Failure of the Committee To Attempt Any Accommodation With the
Executive Branch Is a Fatal Flaw
Between January 11 and February 26, 1996, the White House
sent to the Committee 28,000 pages of documents. However,
because of the enormous breadth of the subpoena, there were a
number of confidential and sensitive documents covered by the
subpoena. In order to provide the Committee with access to
those confidential documents, John Quinn presented a proposal
to Chairman Clinger. That proposal is contained in a February
26, 1996, letter from John Quinn to Chairman Clinger. In that
letter Mr. Quinn stated:
As you know, the nature of this internal deliberative
material was the subject of discussion at our February
15, 1996, meeting. At that meeting we described the
materials we are prepared to have you or your staff
review in camera and those that we are seeking your
agreement to withhold altogether. This material is
limited to (1) documents related to the ongoing
criminal investigations of the Independent Counsel; (2)
materials created in the course of preparation for
Congressional hearings; (3) materials prepared in
responding to this and other Congressional subpoenas;
(4) White House Counsel vetting notes, staff meeting
notes, and a subpoenaed legal analysis document
unrelated to the Travel Office issues; and (5)
personnel records which are of the type that are
subject to the Privacy Act. We understand that you are
considering our positions and the concerns which
support them. This material is not included in this
production. (Emphasis added)
Unfortunately, Chairman Clinger never responded to this
proposal.
By February 26, the White House had virtually completed its
document response to the Committee. As John Quinn stated in his
letter of February 26 to Chairman Clinger:
As you are aware, we have made a number of interim
productions and have already provided the Committee
with 28,000 pages of documents, including over 17,000
pages provided since January 22, 1996. We believe, with
this production, the White House will have virtually
completed its response to this subpoena. Given the
breadth of the subpoena, of course, we may find
additional documents. Should this occur, we will
provide them to the Committee promptly. (Emphasis
added)
Consistent with Mr. Quinn's promise to Chairman Clinger in
his letter of February 26, to turn over to the Committee any
additional documents uncovered, on March 4, 8, and 15, the
White House sent to the Committee three very small supplemental
productions of documents. However, inexplicably Chairman
Clinger responded by sending a letter to Mr. Quinn dated March
20, 1996, critical of Mr. Quinn for uncovering additional
documents. Chairman Clinger stated in his letter:
Indeed, the February 26, 1996, production was to have
been the final production except for the documents
being held in suspension. In spite of this assurance,
your March 15, 1996, production included still more
responsive documents which clearly did not fall within
your privileged categories. It is clear that we need to
come to closure on all outstanding subpoenaed
documents.
On March 21, 1996, John Quinn wrote a letter to Chairman
Clinger restating what Mr. Quinn made clear in his February 26
letter to Chairman Clinger, that if additional documents were
uncovered he would ensure that they were turned over to the
committee:
I thus made absolutely clear to the Committee that we
would continue to work to confirm that there were no
further responsive documents and that should we locate
any further material, we would promptly provide it to
the Committee.
In that same letter Mr. Quinn renewed his request to
Chairman Clinger to work out a compromise on the issues of
privilege:
I look forward to discussing further with you the
quite separate matter of our privileged documents. The
issues raised with regard to those documents, of
course, have nothing to do with either the discovery or
the production of the letter about which you wrote me.
Chairman Clinger once again never responded to Mr. Quinn's
efforts to reach a compromise on this issue. This was the
second time that Chairman Clinger ignored a direct request from
Mr. Quinn to resolve the outstanding issues of privilege.
On March 26, Chairman Clinger wrote to John Quinn and asked
him to explain why the White House had instructed Mr. Craig
Livingstone, Director of White House Personnel Security, to
invoke executive privilege at a staff deposition taken on March
22, 1996. On March 27, Mr. Quinn wrote back to Chairman Clinger
and explained that the White House did not instruct Mr.
Livingstone to invoke executive privilege and that Mr.
Livingstone did not invoke executive privilege as far as he
could determine. In that same letter Mr. Quinn for the third
time asked Chairman Clinger to resolve the issues of privilege:
As you know, we have had preliminary discussions
about resolving White House privileges in the course of
this part of the Committee's investigation; but as of
yet we have not had the opportunity to resolve that
issue. I hope we will be able to meet soon to address
that issue.
Without ever responding to John Quinn's third request to
work out an accommodation on the issues of privilege, on May 2,
1996, Chairman Clinger sent a letter to John Quinn informing
him that a Committee meeting was scheduled for May 9, to vote a
resolution of contempt against him unless all White House
documents were turned over to the Committee by close of
business on May 8, 1996.
In a letter dated May 2, 1996, Ranking Minority Member,
Cardiss Collins wrote to Chairman Clinger indicating that she
disagreed with the decision to seek a contempt resolution
because Chairman Clinger had not attempted any accommodation
with the White House. In addition Rep. Collins specifically
requested a hearing before proceeding with the contempt
resolution:
In order for the Committee Members to have an
understanding of all issues involved in this
resolution, I request a hearing on this matter prior to
any committee vote on this resolution. Fundamental due
process and basic fairness require that each of the
individuals who are identified in the resolution should
be allowed to testify on the issue, and present their
case. To suggest that individuals have willfully
refused to comply with a Congressional subpoena and
should be considered in contempt of Congress is a
serious charge. At a minimum, they deserve to be
allowed to provide the committee with their testimony
on the issue.
In a May 3,1996, letter to Chairman Clinger, John Quinn
again attempted to resolve the matter. In that letter, he
clarified the three areas of confidential documents that the
White House had provided to the Committee:
1. Documents relating to ongoing grand jury
investigations by the Independent Counsel;
2. Documents created in connection with Congressional
hearing(s) concerning the Travel Office matter; and
3. Certain specific confidential internal White House
Counsel office documents including ``vetting'' notes,
staff meeting notes, certain other counsel notes,
memoranda which contain pure legal analysis, land
personnel records which are of the type that are
protected by the Privacy Act.
In that same letter John Quinn pointed out that the
material for which the Committee was threatening contempt went
far beyond events relating to the Travel Office matter itself.
He also, once again, renewed his request to reach an
accommodation on this issue.
On May 3, 1996, Chairman Clinger wrote a letter to Ranking
Minority Member Collins denying her request for a hearing to
resolve the privilege issues.
On May 6, 1996, Chairman Clinger wrote a letter to John
Quinn refusing to discuss any accommodation or compromise and
merely demanded all of the documents.
On May 6, 1996, John Quinn again wrote to Chairman Clinger
offering to resolve these issues:
My offer to work with you to reach a compromise stands.
I believe we have not exhausted the opportunities for
accommodating the Committee's needs consistent with the
President's interest in protecting confidential White
House communications. For example, I gather from news
reports that you are particularly concerned abut
material related to the IRS and FBI inquiries. To the
extent we have such documents, I am prepared to discuss
making them available to you.
On May 7, 1996, Chairman Clinger wrote back to John Quinn
and once again rejected his offer to reach any compromise.
On May 8, 1996, Chairman Clinger finally agreed to a
meeting with Congresswoman Cardiss Collins and John Quinn. At
that meeting Mr. Quinn presented a new proposal. He outlined
the confidential documents that he was prepared to allow
committee staff to review; he offered to produce a privilege
log and provided a strict timetable by which all of this
material would be available. Chairman Clinger agreed to
consider Mr. Quinn's offer.
Within an hour after that meeting Chairman Clinger wrote to
Congresswoman Collins rejecting Mr. Quinn's latest offer and
refusing any compromise. He also invited Mr. Quinn to submit
his views on the issue of executive privilege to the Committee.
On May 9, Mr. Quinn wrote back to Chairman Clinger to
explain his objections to providing the Committee with the
three categories of documents. In that letter he also renewed
his interest in reaching an accommodation with the Committee.
In the final paragraph of his letter Mr. Quinn wrote:
As always, I remain willing in the meantime to discuss
this matter with you so that the legitimate needs of
the Committee and the interests of the White House can
be met.
One final time Chairman Clinger did not attempt any
accommodation with the White House.
legal issues
A. Executive privilege
The Supreme Court has recognized that the Constitution
gives the President the power to protect the confidentiality of
Executive Branch deliberations. See generally Nixon v.
Administrator of General Services, 433 U.S. 425, 446-455
(1977). Once this privilege has been asserted courts consider
it presumptively valid, requiring the courts and Congress to
articulate a specific reason why it needs each disputed
document. United States v. Nixon, 418 U.S. 683.
This power is independent of the President's power over
foreign affairs, national security, or law enforcement; it is
rooted in ``the necessity for protection of the public interest
in candid, objective, and even blunt or harsh opinions in
Presidential decision making.'' United States v. Nixon, 418
U.S. at 708. As Chief Justice Burger stated:
the expectation of a President to the confidentiality
of his conversations and correspondence, like the claim
of confidentiality of judicial deliberations, for
example, has all the values to which we accord
deference for the privacy of all citizens and added to
those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision making. A
President and those who assist him must be free to
explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would
be unwilling to express except privately (id. at 708).
Chief Justice Burger went on to explain why executive
privilege extends to the President's advisors:
* * * [a] President and those who assist him must be
free to explore alternatives in the process of shaping
policies and making decisions and to do so in a way
many would be unwilling to express except privately
(id. at 708).
The United States Court of Appeals for the District of
Columbia Circuit has explicitly held that executive privilege
is applicable to Congressional demands for confidential
information. See Senate Select Committee on Presidential
Campaign Activities v. Nixon, 498 F. 2d 725 (D.C. Cir. 1974)
(en banc). In that case the court of appeals rejected a Senate
committee's efforts to obtain tape recordings of conversations
in President Nixon's offices. The court held that the tapes
were constitutionally privileged and that the committee had not
made a strong enough showing to overcome the privilege.
In a memorandum dated June 19, 1989, by William P. Barr,
former Assistant Attorney General, Office of Legal Counsel,
U.S. Department of Justice, Mr. Barr further explains why the
doctrine of executive privilege has even greater application
when Congress has subpoenaed documents. Mr. Barr on page 5
states:
The possibility that deliberations will be disclosed
to Congress is, if anything, more likely to chill
internal debate among Executive Branch advisers. When
the Supreme Court held that the need for presidential
communications in the criminal trial of President
Nixon's close aides outweighed the constitutional
privilege, an important premise of its decision was
that it did not believe that ``advisers will be moved
to temper the candor of their remarks by the infrequent
occasions of disclosure because of the possibility that
such conversations will be called for in the context of
a criminal prosecution.'' By contrast, congressional
requests for Executive Branch deliberative information
are anything but infrequent. Moreover, compared to a
criminal prosecution, a congressional investigation is
usually sweeping; its issues are seldom narrowly
defined * * * For all these reasons, the constitutional
privilege that protects Executive Branch deliberations
against judicial subpoenas must also apply, perhaps
even with greater force, to Congress'' demands for
information.
Courts have also made it clear that when the Congress has a
legitimate need for information and the Executive Branch has a
legitimate need to keep information confidential the doctrine
of executive privilege requires each Branch to accommodate the
needs of the other. In United States v. American Tel. & Tel.
Co., 567 F.2d 121, 127,130 (D.C Cir. 1977) the court said:
The framers * * * expected that where conflicts in
scope of authority arose between the coordinate
branches, a spirit of dynamic compromise would promote
resolution of the dispute in the manner most likely to
result in efficient and effective functioning of our
governmental system. Under this view, the coordinate
branches do not exist in an exclusively adversary
relationship to one another when a conflict in
authority arises. Rather, each branch should take
cognizance of an implicit constitutional mandate to
seek optimal accommodation through a realistic
evaluation of the needs of the conflicting branches in
the particular fact situation.
Because it was a deliberate feature of the
constitutional scheme to leave the allocation of powers
unclear in certain situations, the resolution of
conflict between the coordinate branches in these
situations must be regarded as an opportunity for a
constructive modus vivendi, which positively promotes
the functioning of our system. The Constitution
contemplated such accommodation. Negotiation between
the two branches should thus be viewed as a dynamic
process affirmatively furthering the constitutional
scheme.
Congress and the Executive Branch must both justify their
specific need for documents. Assistant Attorney General Barr
explains this requirement in his memorandum of June 19:
the process of accommodation requires that each Branch
explain to the other why it believes its needs to be
legitimate. Without such an explanation, it may be
difficult or impossible to assess the needs of one
Branch and relate them to those of the other. At the
same time, requiring such an explanation imposes no
great burden on either Branch. If either Branch has a
reason for needing to obtain or withhold information,
it should be able to express it.
The duty of Congress to justify its request not only
arises directly from the logic of accommodation between
the two Branches, but it is established in the case law
as well. In United States v. Nixon, the Supreme Court
emphasized that the need for evidence was articulated
and specific.
Thus under relevant case law, the Committee is
Constitutionally required to make a principled effort to
acknowledge and if possible meet the legitimate needs of the
Executive Branch. In order to meet this requirement the
Committee must articulate to the White House a specific need
for the documents requested. It is not enough for the Committee
to assert, as it has in this case, that the three categories of
documents withheld by the White House are relevant to the
Committee's investigation.
As we indicated earlier, the White House has made several
reasonable proposals to accommodate the needs of the Committee.
One of those proposals was to permit Chairman Clinger or his
staff to review in camera some of the withheld documents.
Chairman Clinger rejected this proposal. Ironically, in United
States v. Nixon, 418 U.S. at 706, Chief Justice Burger said
that in camera inspection is exactly the type of accommodation
required by the Constitution.
B. Committee must consider, and specifically rule on an individual's
objections, and then require the individual to produce
documents, before a congressional contempt resolution is ripe
Since contempt of Congress under 2 U.S.C. Sec. 192 is a
criminal matter, courts have required the highest level of
intent and due process. Under 2 U.S.C. Sec. 192, a person who
has been ``summoned as a witness'' by a committee to appear to
testify or to produce documents and who fails to do so, or who
appears but refuses to respond to questions, is guilty of a
misdemeanor, punishable by a fine of up to $1,000 and
imprisonment for up to one year.
In Quinn v. United States, 349 U.S. 155 (1955), the
defendant was convicted in the United States District Court for
the District of Columbia of refusing to answer a question asked
by a subcommittee of the Committee on Un-American Activities of
the House of Representatives under 2 U.S.C. Sec. 192. The
Supreme Court held that the defendant could not be convicted
since the committee had not overruled his objection to the
question asked and specifically directed him to answer.
The Supreme Court in Quinn made it clear that under 2
U.S.C. Sec. 192 contempt cannot be sustained unless the failure
to produce documents is a willful and intentional act. The
Court stated:
* * * a clear disposition of the witness' objection
is a prerequisite to prosecution for contempt is
supported by long-standing tradition here and in other
English-speaking nations. In this country the tradition
has been uniformly recognized in the procedure of both
state and federal courts. It is further reflected in
the practice of congressional committees prior to the
enactment of Sec. 192 in 1857: a specific direction to
answer was the means then used to apprise a witness of
the overruling of his objection. Against this
background Sec. 192 became law. No relaxation of the
safeguards afforded a witness was contemplated by its
sponsors (id. at 167, 168).
The Court in Quinn went on to explain one of the fatal
defects with the subcommittee's attempt to hold the witness in
contempt under 2 U.S.C. Sec. 192:
At no time did the committee specifically overrule
his objection based on the Fifth Amendment; nor did the
committee indicate its overruling of the objection by
specifically directing petitioner to answer. In the
absence of such committee action, the petitioner was
never confronted with a clear-cut choice between
compliance and noncompliance, between answering the
question and risking prosecution for contempt. At best
he was left to guess whether or not the committee had
accepted his objection (p. 166).
As the Supreme Court in Quinn makes clear, in order to
determine whether the failure to produce documents is willful
courts have required committees of the Congress to ascertain
the grounds relied upon by a person for refusing to turn over
documents. The committee must then clearly rule on the
objection. If the committee overrules the objection and
requires the production of documents, it must instruct the
person that his continued refusal to turn over documents will
make him liable to prosecution for contempt of Congress. If a
committee fails to adequately apprise a person that the
documents are required, notwithstanding his objection, the
element of deliberateness necessary for conviction for contempt
under 2 U.S.C. Sec. 192 is lacking and such a conviction cannot
stand. Emspak v. United States, 349 U.S. 190 (1955)
i. Committee hearing required before resolution of contempt
The courts have held that the process for specifically
ruling on a person's objections and claims of privilege
requires a hearing before the person is held in contempt of
Congress. In United States v. Bryan, 339 U.S. 323, the
respondent was the executive secretary and had custody of the
records of an association which was under investigation by the
Committee on Un-American Activities of the House of
Representatives. The Committee issued and served upon the
respondent a subpoena directing her to produce before the
Committee, at a stated time, specified records of the
association. The respondent appeared before the Committee, but
refused to produce the records on the ground that the Committee
was without constitutional right to demand them. The Supreme
Court spelled out the hearing requirement in its ruling:
The offense of contempt of Congress, with which we
are presently concerned, on the other hand, matures
only when the witness is called to appear before the
committee to answer questions or produce documents and
willfully fails to do so. Until that moment he has
committed no crime. There is, in our jurisprudence, no
doctrine of ``anticipatory contempt'' (id. at p. 341).
In Deschler's Precedents, Volume 4, Chapter 15, section 17,
there is a brief discussion of procedures leading up to a
contempt citation. There is a general recognition that such
proceedings do not require a trial by the Congress. The
Parliamentarian makes a note in Footnote 7. It states:
In Groppi v. Leslie, 404 U.S. 496 (1972), a decision
which reviewed an action of the Wisconsin legislature
but nonetheless rested on congressional precedents, the
U.S. Supreme Court held that a witness may not be
punished for contempt unless he has been accorded due
process of law in a proceeding that leads to a finding
of guilt. Although a legislative body does not have to
accord all the procedural rights that a court must
accord, it must grant notice and an opportunity for a
hearing. (Emphasis added.)
ii. Committee must specifically determine whether a
subpoenaed document is pertinent before voting a
resolution of congressional contempt
Federal courts have held that 2 U.S.C. Sec. 192 requires a
showing of pertinency. The United States Court of Appeals for
the Third Circuit in the case of United States v. Orman, 207
F.2d 148 (3rd Cir. 1953), explains the pertinency requirement
in Section 192:
* * * two separate elements must appear before
pertinency is established: (1) that the material sought
or answers requested related to a legislative purpose
which Congress could constitutionally entertain; and
(2) that such material or answers fell within the grant
of authority actually made by Congress to the
investigating committee * * * (id. at 153).The Supreme
Court in the case of Watkins v. United States, 354 U.S.
178 (1954), explains the manner in which the issue of
pertinency in 2 U.S.C. Sec. 192 should be resolved.
Once a witness has objected to the pertinency of a
question, there is no 2 U.S.C. Sec. 192 offense unless
the Chair will ``state for the record the subject under
inquiry and the manner in which the propounded
questions are pertinent thereto'' (Id. at 214-215).
The mere fact that the committee was engaged in a
legitimate investigation within the committee's jurisdiction
does not make the specific subpoenas valid in every instance.
As the Supreme Court stated in Gibson v. Florida Legislative
Investigation Committee, 372 U.S. 539, 545 (1963) ``validation
of the broad subject matter under investigation does not
necessarily carry with it automatic and wholesale validation of
all individual questions, subpoenas, and documents demands.''
Thus, before the committee can adopt a contempt resolution, the
committee must resolve the specific issue of pertinency if that
issue has been raised.
iii. The Kissinger case
One of the justifications used by Chairman Clinger for not
holding a hearing prior to voting a contempt resolution is the
contempt citation to former Secretary of State Henry Kissinger.
In his opening statement Chairman Clinger stated:
We are by no means rushing matters here. By way of
example, in a matter where Secretary of State Kissinger
was subpoenaed for documents pertaining to national
security, the Committee met two days after the return
date of the subpoena and voted Mr. Kissinger in
contempt despite his assertion of Executive Privilege.
The Kissinger case can be distinguished from the contempt
resolution against John Quinn on several scores. First, there
is no indication that Secretary Kissinger ever raised an issue
of the pertinency of the Select Committee's document request.
Second, neither Secretary Kissinger nor any other Member of the
Select Committee on Intelligence ever asked for a hearing to
resolve the issue of executive privilege or pertinency. Third,
the issue never went to the courts to determine if a hearing
was required since the issue was resolved when Secretary
Kissinger gave the Select Committee on Intelligence an oral
briefing on the issue of the Reagan Administration's covert
activities.
C. Committee never specifically overruled claims of executive privilege
as required by law
In a letter to John Quinn dated May 7, 1996, Chairman
Clinger, two days before the Committee had scheduled a meeting
on the contempt resolution, invited John Quinn to submit a
written statement to the Committee of any valid executive
privilege claims:
I invite you to submit a written statement of any
valid executive privilege claim which you wish to
present to the Committee as to why you should not be
held in contempt of Congress under 2 U.S.C. Sec. 192
and Sec. 194 for failure to produce properly subpoenaed
documents in your possession, custody and control.
On May 9, 1996, John Quinn submitted the requested
statement in the form of a letter to Chairman Clinger. In that
letter, Mr. Quinn raised three major objections to the contempt
resolution: (a) the Committee had not attempted to reach any
accommodation with the Executive Branch; (b) the documents
withheld from the Committee were not pertinent to the
Committee's investigation; (c) the documents were subject to a
claim of executive privilege.
With regard to the issue of executive privilege, Mr. Quinn
in the May 9 letter once again categorized the three types of
documents at issue:
1. Documents relating to ongoing grand jury
investigations by the Independent Counsel;
2. Documents created in connection with Congressional
hearing(s) concerning the Travel Office matter; and
3. Certain specific confidential internal White House
Counsel office documents including ``vetting'' notes,
staff meeting notes, certain other counsel notes,
memoranda which contain pure legal analysis, and
personnel records which are of the type that are
protected by Privacy Act.
Chairman Clinger in his opening statement on the day of the
hearing, never discussed the claims of executive privilege
regarding White House documents relating to the grand jury
investigation by the Independent Counsel and he never discussed
the documents created in connection with Congressional hearings
concerning the Travel Office matter. He only discussed internal
White House Counsel office documents. On page 3 of Chairman
Clinger's statement he said:
I find it difficult to understand how documents
related to the White House Travel Office scandal
somehow arise to a ``substantial question of executive
privilege. Certainly disclosure of these documents
could not impair the national security or the conduct
of foreign relations. Nor will the performance of the
Executive Branch's constitutional duties be impaired by
the President keeping his own pledge of three years ago
to get to the bottom of this matter.
This statement can be contrasted with Chairman Clinger's
statement regarding the claims of attorney-client privilege
made by David Watkins and Matthew Moore. On page 9 of Chairman
Clinger's prepared statement he stated: ``Neither Mr. Watkins
nor Mr. Moore have a valid attorney-client privilege claim for
withholding any of these documents.'' While we believe that
overruling this claim of privilege at a meeting to vote
contempt is legally insufficient, at least the Chairman
specifically ruled on the claim of attorney-client privilege.
However, he never ruled on any of the privilege issues raised
by Mr. Quinn.
According to the court decisions discussed above, the
Committee has a legal responsibility to rule on each claim of
privilege. The Committee must specifically inform Mr. Quinn
that his claims of privilege have been overruled. The Committee
must then instruct Mr. Quinn that he must comply with the
Committee's determination to overrule his claims of privilege
and turn over all subpoenaed documents. However, the Committee
never overruled Mr. Quinn's objections and never instructed him
to comply with the Committee's determination.
D. The committee never considered the pertinency of documents withheld
by the White House
Mr. Quinn in his letter to Chairman Clinger dated May 9,
raised the issue of whether the subpoenaed documents are
pertinent to the Committee's investigation. He stated on page 3
of that letter:
My letter stressed that ``the materials that the
Committee is demanding, and threatening contempt for
not producing, go far beyond events relating to the
Travel Office matter itself.'' I pointed out that ``in
so doing, the Committee presumes to ask for, among
other things, our internal preparation for
Congressional hearings you yourself have called, our
private communications with Members and staff of this
Committee, as well as our response to the [ongoing
investigation] of the Independent Counsel.''
The Chairman did not even bother to discuss Mr. Quinn's
pertinency objection. The Chairman certainly has never in any
way overruled Mr. Quinn's objections.
A careful review of Chairman Clinger's opening statement at
the October 24, 1995 hearing on the Committee's White House
Travel Office investigation makes it clear that Mr. Quinn has a
reasonable claim that the information withheld by the White
House is not pertinent to the Committee's investigation. In his
opening statement the chairman defined the scope of the
Committee's investigation:
The committee is meeting today to hear testimony on
the firings of the entire staff at the White House
Travel Office in May 1993, and related events leading
up to their firings, the individuals prompting these
firings, the appropriateness of the actions taken,
possible conflicts or ethical violations that occurred,
the subsequent investigations of these maters, and the
levels of candor and cooperation by those involved in
both responding to the investigations and conducting
the investigations (TR. p. 3).
It is difficult on its face to see how the three categories
of documents withheld by the Administration are pertinent to
the Committee's investigation as defined by the Chairman of the
Committee. At a minimum, the Committee has a legal
responsibility to consider the objection by the White House
that the documents are not pertinent.
As was the case with executive privilege, the Committee
never held a hearing to specifically consider or rule on Mr.
Quinn's claim that the requested documents were not pertinent
to the Committee's investigation. Without such a hearing to
consider and resolve the issue of pertinency, the contempt
resolution is invalid. Moreover, since the Committee did not
take the time to sort out whether any of Mr. Quinn's concerns
were valid, if any of the Committee's demands are invalid, then
there is no contempt. See United States v. McSurely, 473 F.2d
1178, 1204 (D.C. Cir. 1972).
E. The contempt citation of Matthew Moore is deficient.
In a February 27, 1996, letter to Barbara Bracher of the
Majority Committee staff from William T. Hassler, attorney for
Mr. Moore, Mr. Hassler explains that Mr. Moore has been asked
by Mr. Watkins to assert a claim of attorney-client privilege
for three documents. In that letter, Mr. Hassler explains that
pending adjudication of a claim of confidentiality, a lawyer
must respect the asserted claim of privilege, if there is a
colorable basis for asserting the privilege. Mr. Hassler
restated this argument in a letter dated May 8, 1996, to
Chairman Clinger.
Mr. Hassler argued that D.C. Bar Opinion No. 99 requires
``an attorney to assert a claim of confidentiality pending
adjudication of the claim even where the existence of the
attorney/client relationship is in question.''
The fact that Chairman Clinger declares the attorney-client
privilege invalid does not resolve the matter. The Bar Opinion
cited by Mr. Hassler goes on to say that ``the ethical
obligation of the [attorney] is simply not to compromise his
clients's position voluntarily, and that obligation continues
until the relevant forum has resolved in the negative the
question of the existence of the attorney/client
relationship.'' Since Mr. Watkins may be facing criminal
charges in the investigation of the Independent Counsel, it
would appear that Mr. Moore could face ethical problems were he
to disclose these documents prior to a determination by the
courts. Mr. Moore is therefore being penalized not for any
refusal to provide documents to the Committee, but rather for
abiding by legal ethics which prohibit him from making the
disclosure.
The Chairman's prepared statement did not even bother to
address the Bar Opinion cited by Mr. Hassler, nor does the
draft Committee report. Moreover, as far as we can determine,
Mr. Hassler's letter did not appear to have been disseminated
by the Majority to Committee Members. Certainly there have been
no hearings at which testimony was taken on any facts in
dispute.
The absence of any factual record or hearing suggests that
the courts would be unlikely to give significant weight to the
Chairman's ruling. Indeed, the question arises why a ruling by
the Committee, with its partisan interest, should be given
deference when the courts would have to make a second ruling in
the Independent Counsel's investigation of Mr. Watkins. Mr.
Moore is now left in the difficult position of balancing the
vote of the Committee against the cannons of legal
responsibility.
F. The contempt citation of David Watkins is deficient
Mr. Watkins asserted attorney-client and attorney work
product privileges over draft copies of David Watkins' November
15, 1993 Memorandum For Counsel. In a letter to Chairman
Clinger dated May 7, 1996, Robert Mathias, attorney for Mr.
Watkins, provided the Committee with his legal and factual
arguments in support of these privileges. On page three of Mr.
Mathias' letter he states:
Mr. Watkins retained Hogan & Hartson during the
summer of 1993 to represent him in connection with
certain matters including those relating to the White
House Travel Office firings. An attorney-client
relationship has existed between Mr. Watkins and Hogan
& Hartson since then.
In September, 1993, after Mr. Watkins had retained
Hogan & Hartson, Mr. Watkins began to prepare a
privileged and confidential document which detailed his
responses to the various conclusions of the Internal
White House Travel Office Management Review. The final
version of that document is the November 15, 1993
Memorandum For Counsel signed by Mr. Watkins.
Mr. Moore assisted in the preparation of the
Memorandum For Counsel in two ways. First, Mr. Moore
acted as a ``scribe'' for Mr. Watkins. Mr. Moore did
the actual typing of some of the drafts of the
document. Secondly, Mr. Watkins discussed with Mr.
Moore, a lawyer, how to prepare the Memorandum For
Counsel so that it would appropriately be considered
privileged and confidential. At the time the document
was prepared, Mr. Moore was an attorney on Mr. Watkins'
staff at the White House Office of Management and
Administration. The Memorandum For Counsel, however,
was not prepared as part of the business of that
office.
In asking for Mr. Moore's assistance, Mr. Watkins had
the good faith belief that the Memorandum For Counsel
would be kept privileged and confidential and that Mr.
Moore's assistance, and status as an attorney, would
help preserve the privileged and confidential status of
the document. Indeed, every draft copy of the
Memorandum For Counsel contained, at the time of its
creation, the legend ``PRIVILEGED AND CONFIDENTIAL.''
Every copy, except the final version, bears the stamp
``DRAFT.''
Mr. Mathias goes on in his letter to cite extensive case
law in support of Mr. Watkins' claim of attorney-client and
attorney-work product privileges. For example, on page 5 of his
letter to Chairman Clinger Mr. Mathias states:
The determination regarding the existence of an
attorney-client relationship and privilege depends upon
the understanding and intention of the client. The
attorney-client privilege attaches to confidential
communications made to an individual in the genuine,
even if mistaken, belief that the individual is an
attorney. See Wylie v. Marley Co., 891 F.2d 1463, 1471
(10th Cir. 1989) (``The professional relationship for
purposes of the privilege hinges upon the belief that
one is consulting a lawyer and his intention to seek
legal advice.''); United States v. Mullen & Company,
776 F. Supp. 620, 621 (D. Mass. 1991); United States v.
Tyler, 745 F. Supp. 423, 424-24 (W.D. Mich. 1990) and
United States v. Boffa, 513 F. Supp. 517, 523 (D. Del.
1981).
Mr. Watkins genuinely believed that Mr. Moore's
status as an attorney would help to preserve the
privileged and confidential nature of the Memorandum
For Counsel. Thus, even if one were to later conclude
that Mr. Moore was not acting as Mr. Watkins' personal
attorney during preparation of the Memorandum or
Counsel, the privilege still applies.
As was the case with Matthew Moore, it does not appear that
the Majority even disseminated Mr. Mathias' letter to the
Members of the Committee. Chairman Clinger's prepared statement
never discussed any arguments raised by Mr. Mathias. Therefore,
the Committee Members approved a contempt resolution against
David Watkins without the benefit of a hearing at which the
facts of the case were presented concerning the relationship of
Mr. Watkins and Mr. Moore. In addition, there was no hearing or
briefing of the attorney-client and attorney-work product
privileges being asserted by Mr. Watkins. Moreover, there
appears to be little probative value in early drafts of an
unsent memo, since changes could be construed to mean that Mr.
Watkins had disavowed the earlier contents.
Finally, it should be noted that Mr. Watkins appeared
before the Committee and answered every question asked of him,
which would indicate no intent to be in contempt of Congress.
G. Conclusion
Thus, the Committee's contempt resolution is invalid for
several reasons. First, the Committee never attempted to reach
any accommodation with the Executive Branch. Second, the
Committee failed to articulate a specific need for the
documents withheld from the Committee. Third, the Committee
never considered and overruled objections to the resolution
made by the Administration regarding pertinency and executive
privilege. Finally, the Committee never held a hearing to
consider the factual and legal issues in dispute.
These legal requirements are not optional. The Majority
cannot simply disregard them because it does not suit their
narrow political purposes. Our courts have determined that
these fundamental protections are necessary to fairly
accommodate the needs of the Executive, Legislative and
Judicial Branches of our Government. These protections are also
needed to shield the American people from an unchecked abuse of
power.
AMENDMENTS TO THE RESOLUTION
We offered two amendments in Committee and attempted to
offer a third before a motion for the previous question was
interposed by the Committee majority.
(1) An amendment in the nature of a substitute offered by
Rep. Waxman would have honored the requirements of law and
precedent that a hearing be held prior to any House action to
hold an individual in contempt. The Waxman amendment would have
prevented the Speaker from certifying to the U.S. Attorney for
the District of Columbia any report pursuant to 2 U.S.C.
Sec. 192 and Sec. 194 until a hearing was held at which Messrs.
Quinn, Watkins and Moore would have an opportunity to testify.
A hearing would have helped remedy one of several
potentially fatal defects in the Committee's process, if it
wished to proceed further with the contempt resolution. In the
most recent contempt actions taken by the House during the
1980's, involving Secretary of the Interior James Watt (1982),
EPA Administrator Anne Gorsuch (1982), and Joseph and Ralph
Bernstein (1986), each individual subsequently cited for
contempt was given, and accepted, the opportunity to testify at
a subcommittee hearing.
The hearings provided an opportunity for the witnesses to
explain their actions. It provided the committees an
opportunity to decide whether an act of contempt--failure to
answer questions, or to produce subpoenaed information--was
committed in their presence, and buttressed their subsequent
recommendations to the House to cite for contempt. Such a
record is completely lacking in the current instance.
The failure to hold a hearing deprived the House, the U.S.
Attorney, and a court, of information essential to any rational
determination of criminal intent. It also deprived the named
individuals of due process of law, as well as of any
opportunity to convince the Committee that its legitimate needs
were, in fact, being met. A hearing would also have allowed the
Committee to consider the President's concerns over his
ability, and that of his successors, to receive advice from the
White House Counsel and other sources. It might have precluded
a claim of executive privilege.
(2) A second amendment in the nature of a substitute was
offered by Ranking Minority Member Cardiss Collins and was
intended to address the Committee's concern over the public's
right to know both the issues in the Travel Office
investigation and how the inquiry was being conducted. The
amendment was also intended to address issues of comity in the
disclosure of information between the Executive and Legislative
Branches which the Committee ignored in its rush to judgment.
The Collins amendment would have required the Committee to
produce the equivalent of what it was demanding from the White
House--its own records and private communications related to
the travel investigation, from May 19, 1993, to the present.
The 1993 date was frequently cited by the Majority as the date
of the beginning of Rep. Clinger's investigation of the Travel
Office and has been erroneously used to assert that the White
House has not complied ``for years'' with its requests for
information. In fact, the Committee's requests for information
began on May 30, 1995, and several follow-ups, followed by a
subpoena on January 11, 1996. The White House has been
continuously supplying information in response to all of these
requests.
The data requested to be disclosed by the Collins amendment
would have included all committee records of communications
related to the White House Travel Office matter, including all
letters, memoranda, notes of meetings, phone logs, e-mails,
computer entries, video or audio tapes, calendars, press
releases, diaries, telephone message slips, notes, talking
points, journal entries, opinions, analyses, summaries and
disks embodying communications among Members or staff of the
Committee and communications with the Independent Counsel or
staff of the Independent Counsel. Communications with House
Leadership staff, the FBI, the Department of Justice, and Billy
Ray Dale, the former head of the Travel Office, would have been
included.
The purpose of the amendment was to require the same degree
of disclosure by the Committee of materials that was being
asked of the Executive Branch. At a minimum, such disclosure
would have provided the public with detailed information about
the manner in which the Committee was conducting its
investigation. It might also have provided some guidance to the
White House and other executive agencies, which were attempting
to comply with broad and vague requests from the Committee,
with some way to divine what the Committee's actual needs might
be.
A Member of the Majority made a point of order that the
amendment was not germane to the resolution, and the Chairman
sustained that point of order.
(3) Rep. Barrett of Wisconsin subsequently sought to offer
an amendment to require that legal fees of any individual cited
in the contempt resolution be paid by the government, in the
event that the individual is not found guilty of criminal
contempt. However, the Chairman would not recognize Mr.
Barrett, even though under the practices and precedents of the
House a Member of the Minority should have been recognized in
turn. Instead, a Member of the Majority was recognized for a
motion to move the previous question on the resolution, cutting
off all debate and amendments. Its adoption by the Committee
prevented the Barrett amendment from being considered.
ALTERNATIVES TO THE COMMITTEE'S ACTIONS: RESOLVING THE DISPUTE THROUGH
CIVIL PROCEDURES
Chairman Clinger made clear his true purpose in pressing
the criminal contempt resolution and rejecting any suggestions
that a civil contempt alternative be considered--to manufacture
a confrontation between the branches for political purposes. If
the Majority truly desires a resolution on the question of the
disputed documents, the criminal contempt process will not
achieve that end.
Instead, in its determined and self-publicized pursuit of a
constitutional crisis with the White House, the Majority has
not only rejected the offer of an accommodation with the
Executive, but has now also rejected the White House's
alternative suggestion of seeking a civil enforcement
alternative to resolve the dispute. The Majority simply
declares that alternative unavailable.
The House's power under 2 U.S.C. Sec. 192 to initiate a
criminal contempt proceeding bears no relevant relationship to
the issue of the White House's compliance with the Committee's
subpoenas. Even in the unlikely event that the U.S. Attorney
or, in the event of a referral, the Independent Counsel, were
to prosecute the case in the Federal District Court for the
District of Columbia, and in the even more unlikely
circumstance that the House prevailed in court, victory would
not provide the Committee with the documents demanded.
Criminal contempt could only impose a jail term on the
individuals cited in the resolution. This might indeed provide
new political fodder for the Majority's escalating attacks on
the President, the First Lady and the White House staff, which
are certain to become more desperate as the November election
draws closer. However, abuse of the criminal contempt statute
for publicity serves only to weaken the Committee's oversight
process and further demeans the institutional authority of the
House in securing access to Executive Branch materials to which
it may legitimately be entitled in the future.
In choosing the route of criminal contempt, Chairman
Clinger rejected several other potential options which might
have provided a more direct route to the withheld documents.
(a) Enacting a Civil Contempt Statute.
The Senate possesses the authority, under 2 U.S.C.
Sec. 288d, to bring a civil action in Federal court to compel
witnesses to obey committee subpoenas, i.e. the court would
order the documents provided. The House did not include itself
within the ambit of the statute, but there is nothing to
prevent it from doing so now. Victory in such a suit could
bring the Committee what it claims to want--the subpoenaed
documents.
However, when this option was broached to Chairman Clinger
by Counsel John Quinn and Mrs. Collins prior to the contempt
hearing, Chairman Clinger, in a written response to Mrs.
Collins, stated:
Proposing to amend the U.S. Code, through separate
actions by the House, Senate, and the President, is
wholly unreasonable.
Chairman Clinger provided no further arguments as to why
this course was ``wholly unreasonable.'' In fact, presuming
that Chairman Clinger and the President agreed to this action,
it would have been a relatively simple and quick process to
approve such legislation through the unanimous consent of the
Members of both bodies.
There is also precedent for congressional action
authorizing a civil suit seeking enforcement of a specific
congressional subpoena for Executive Branch documents, even on
a ``one-shot'' basis. Public Law 93-190 was enacted
specifically to allow the Senate Select Committee on
Presidential Campaign Activities to bring suit to enforce its
subpoenas against the Nixon Administration. The statute
conferred jurisdiction on the Federal District Court for the
District of Columbia to hear such cases. A similar statute
authorizing the Committee on Government Reform and Oversight to
bring such a suit could be enacted quickly.
(b) Civil Enforcement as an Alternative.
Yet another potential route toward the committee's
expressed goals is a civil suit brought under existing law.
There has been no definitive decision that civil contempt
action cannot be brought under 28 U.S.C. Sec. the ``federal
question'' jurisdiction statute. Civil enforcement is not
precluded in a situation where a House committee, with
authorization by the full body, seeks a judicial determination
of a claim of privilege by the Executive.
Federal courts have in the past rejected congressional
efforts at civil enforcement of actions against the Executive
Branch on the grounds that the cases must allege a monetary
controversy of at least $10,000. (Senate Select Committee on
Presidential Campaign Activities v. Nixon, 366F. Supp. 51,
1973). In the opinion, Judge Sirica, while dismissing the
select committee's suit for lack of jurisdiction, noted:
Where it desires to award jurisdiction over cases
involving important rights without regard to a monetary
valuation, the Congress is capable of excluding such
restrictions.
However, the $10,000 requirement was subsequently repealed
in 1980 (P.L. 96-486). In its report (H. Rpt. 96-1461), the
House Judiciary Committee noted that use of a monetary limit
``* * * ignores the fact that many important claims are
incapable of economic valuation and it operates in total
disregard of the importance, difficulty or far-reaching nature
of the Federal claim at issue.''
The Majority has misconstrued the decision in Senate Select
Committee as somehow precluding jurisdiction on grounds other
than the one jurisdictional requirement that the court found
lacking. There is no textual support for such a position. The
court did not find that Federal subject matter jurisdiction
lacking for a civil enforcement action under section 1331; nor
did the court find that such a dispute between the branches
would necessarily present a ``political question'' that was
inappropriate for the Federal Judiciary to decide.
Quite the contrary, the D.C. Circuit indicated that absent
the one jurisdictional defect, it was willing to entertain a
civil action to resolve a conflict between a congressional
subpoena for documents and a Presidential claim of executive
privilege when the action was brought by a congressional
committee. With the $10,000 requirement eliminated, there is no
real or imagined statutory hurdle remaining that would prevent
the Committee from proceeding to a civil resolution of this
dispute.
While perhaps untested, there appears to be no precedent
establishing that civil contempt actions cannot be brought to
resolve subpoena disputes between the House and the Executive.
Therefore, there is no basis for those who would argue that
civil contempt is not available, or that if pursued it would be
thrown out by the courts as a political question.
By rejecting suggestions that the Committee pursue civil
contempt, Chairman Clinger made clear that the purpose of the
resolution is not to obtain disputed documents but rather to
gain political advantage. By choosing such a confrontational
course of action, the Majority has gone a long way toward
undercutting the very congressional institutional interests
that it purports to uphold.
Cardiss Collins.
Henry A. Waxman.
Tom Lantos.
Robert E. Wise, Jr.
Major R. Owens.
Edolphus Towns.
John M. Spratt, Jr.
Louise McIntosh Slaughter.
Paul E. Kanjorski.
Gary A. Condit.
Collin C. Peterson.
Bernard Sanders.
Karen L. Thurman.
Carolyn B. Maloney.
Thomas M. Barrett.
Barbara-Rose Collins.
Eleanor Holmes Norton.
James P. Moran.
Gene Green.
Carrie P. Meek.
Chaka Fattah.
Bill K. Brewster.
Tim Holden.
Elijah E. Cummings.
DISSENTING VIEWS OF REPRESENTATIVE CARRIE P. MEEK
I come from an area where people do a lot of fishing, and I
recognize a fishing expedition when I see one. This contempt
resolution looks like a fishing expedition to me.
This resolution is not a search for criminal activity by
members of the White House staff. That search is being
conducted by the Independent Counsel.
This resolution is not a search for justice for the seven
employees of the Travel Office who were fired in May 1993. The
House voted three months ago, 350 to 43, to pay their legal
expenses.
One can only conclude that this resolution is a fishing
expedition in search of a new headline. The Republican
leadership doesn't like the current headlines about ``Extreme
Republican Agenda Blocked by President Clinton.'' So it wants a
new headline.
The new headline that the Republican leadership is probably
looking for is ``White House Coverup.'' But a more accurate
headline is ``White House Counsel Risks Jail to Protect the
Constitution.''
In the 1950's people risked going to jail to protect their
constitutional rights from the attempts by Senator McCarthy to
probe their political beliefs. In the 1960's and 1970's people
risked going to jail to protect the constitutional principle
that African-Americans should be treated the same as whites.
Now the Republican leadership threatens Mr. Quinn with jail
because he seeks to protect the constitutional integrity of the
Office of the President.
This proceeding is a direct attack on the constitutional
powers of the President. Article II section 2 of the
Constitution authorizes the President to ``require the opinion,
in writing, of the principal officer in each of the executive
departments, upon any subject relating to the duties of their
respective offices.'' How can the President get candid written
opinions if Members of Congress are going to rummage through
them, looking for a potentially embarrassing word or phrase?
Would the Majority Committee staff be able to properly
serve the Chairman of the Committee if every document they
prepared were subject to scrutiny by the White House? The
answer is clear. Yet the Majority seeks to impose a standard on
the President that it is unwilling to impose on itself.
I dissent.
Carrie P. Meek.