[House Report 104-862]
[From the U.S. Government Publishing Office]
Union Calendar No. 469
104th Congress, 2nd Session - - - - - - - - House Report 104-862
INVESTIGATION INTO THE WHITE HOUSE AND DEPARTMENT OF JUSTICE ON
SECURITY OF FBI BACKGROUND INVESTIGATION FILES
INTERIM REPORT
__________
NINETEENTH REPORT
by the
COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
together with
ADDITIONAL AND MINORITY VIEWS
September 28, 1996.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
WILLIAM F. CLINGER, Jr.,
Pennsylvania, Chairman
CARDISS COLLINS, Illinois BENJAMIN A. GILMAN, New York
HENRY A. WAXMAN, California DAN BURTON, Indiana
TOM LANTOS, California J. DENNIS HASTERT, Illinois
ROBERT E. WISE, Jr., West Virginia CONSTANCE A. MORELLA, Maryland
MAJOR R. OWENS, New York CHRISTOPHER SHAYS, Connecticut
EDOLPHUS TOWNS, New York STEVEN SCHIFF, New Mexico
JOHN M. SPRATT, Jr., South Carolina ILEANA ROS-LEHTINEN, Florida
LOUISE McINTOSH SLAUGHTER, New York WILLIAM H. ZELIFF, Jr., New
PAUL E. KANJORSKI, Pennsylvania Hampshire
GARY A. CONDIT, California JOHN M. McHUGH, New York
COLLIN C. PETERSON, Minnesota STEPHEN HORN, California
KAREN L. THURMAN, Florida JOHN L. MICA, Florida
CAROLYN B. MALONEY, New York PETER BLUTE, Massachusetts
THOMAS M. BARRETT, Wisconsin THOMAS M. DAVIS, Virginia
BARBARA-ROSE COLLINS, Michigan DAVID M. McINTOSH, Indiana
ELEANOR HOLMES NORTON, District of ColumbiaTATE, Washington
JAMES P. MORAN, Virginia DICK CHRYSLER, Michigan
GENE GREEN, Texas GIL GUTKNECHT, Minnesota
CARRIE P. MEEK, Florida MARK E. SOUDER, Indiana
CHAKA FATTAH, Pennsylvania WILLIAM J. MARTINI, New Jersey
BILL BREWSTER, Oklahoma JOE SCARBOROUGH, Florida
TIM HOLDEN, Pennsylvania JOHN B. SHADEGG, Arizona
ELIJAH CUMMINGS, Maryland MICHAEL PATRICK FLANAGAN, Illinois
------ CHARLES F. BASS, New Hampshire
BERNARD SANDERS, Vermont (Independent)TEVEN C. LaTOURETTE, Ohio
MARSHALL ``MARK'' SANFORD, South
Carolina
ROBERT L. EHRLICH, Jr., Maryland
SCOTT L. KLUG, Wisconsin
James L. Clarke, Staff Director
Kevin M. Sabo, General Counsel
Judith McCoy, Chief Clerk
Bud Myers, Minority Staff Director
LETTER OF TRANSMITTAL
----------
House of Representatives,
Washington, DC, September 28, 1996.
Hon. Newt Gingrich,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: By direction of the Committee on
Government Reform and Oversight, I submit herewith the
committee's nineteenth report to the 104th Congress.
William F. Clinger, Jr., Chairman.
C O N T E N T S
----------
Page
I. Executive summary................................................1
A. Introduction........................................... 1
1. The conduct of White House officials............... 2
2. The conduct of the FBI............................. 3
B. The matter of the FBI files............................ 4
1. The discovery of the files: Travelgate to Filegate. 4
2. The discovery of the Billy Dale file............... 5
3. White House's changing explanations for
``Filegate''....................................... 6
4. A ``file clerk'' caused the problem--June 5, 1996.. 6
5. The General Accounting Office caused the problem--
June 6, 1996....................................... 7
6. ``An innocent bureaucratic mistake''--June 7, 1996. 7
7. The Secret Service caused the problem--June 10..... 7
8. Procedural safeguards against ``innocent snafus''.. 9
9. Livingstone and Marceca............................ 10
10. Secret Service hearings........................... 13
11. FBI internal investigation and report............. 13
12. Attorney General Reno refers FBI files
investigation to Judge Starr....................... 14
13. Improper contacts with the FBI.................... 15
C. Findings............................................... 16
D. Recommendations........................................ 17
II. White House Office of Personnel Security........................18
A. History of the Office of Personnel Security............ 18
1. White House Security Office practice and procedures 19
2. Updating the background files...................... 20
3. The transition from the Bush administration........ 22
B. Clinton administration personnel and operations of the
office................................................. 23
1. Who hired Craig Livingstone?....................... 23
2. Craig Livingstone's quest for the Military Office.. 30
3. Livingstone's duties as Director of the White House
Office of Personnel Security....................... 31
4. Livingstone's salary requests...................... 34
5. Livingstone brings on new staff.................... 35
III. Detail of Anthony Marceca to the White House....................36
A. Introduction........................................... 36
B. Marceca parlays his political background with Craig
Livingstone into a White House position................ 37
1. Marceca's request for a detail to the White House.. 39
2. The With House requests Marceca.................... 40
3. Marceca has access to the White House before his
detail............................................. 41
C. Marceca's introduction to the White House Office of
Personnel Security..................................... 41
1. Introduction....................................... 41
2. Discrepancies in Marceca's testimony............... 42
D. Marceca begins the Update Project...................... 44
1. Introduction....................................... 44
2. Marceca's understanding of the Secret Service lists 45
3. Marceca's explanation of the Update Project........ 46
4. The ``Dead Bin''................................... 49
5. Marceca's other duties............................. 51
E. Marceca's detail ends.................................. 51
1. White House attempts to extend Marceca's detail.... 51
2. Marceca does advance for the Clinton administration 53
IV. Initial discovery of ``Tony's Files''...........................55
A. Lisa Wetzl's backgound................................. 56
1. Ms. Wetzl, who had no experience, should not have
assumed the amount of responsibility she undertook. 56
2. Limited inquiry.................................... 58
B. Lisa Wetzl discovers ``Tony's Files''.................. 59
1. Wetzl to complete ``Update Project''............... 59
2. Marlin Fitzwater, or too many files................ 59
C. The ``Update Project'' is redone by Lisa Wetzl......... 60
1. Wetzl destroys the Secret Service list............. 60
2. Process by which the project is completed.......... 61
3. Extra files are boxed up and archived.............. 62
V. White House Counsel's Office discovery of FBI files.............62
A. Billy Dale's file...................................... 62
1. Office of Records Management responds to subpoena.. 62
2. White House Counsel determines that FBI file is a
personnel file..................................... 63
3. Natalie Williams passes on information to Wendy
White.............................................. 63
4. Wendy White's handling of Billy Dale file.......... 64
a. May 21, 1996--orders the Dale file from OPS.... 64
B. Chairman Clinger's June 5, 1996 statement.............. 64
1. The committee receives 1,000 pages................. 64
2. Chairman Clinger's statement on the Billy Dale file 65
VI. FBI involvement in the files matter.............................65
A. Director Freeh initiates investigation................. 65
1. Tom Kelley's initial investigation................. 66
2. Howard Shapiro takes over the investigation........ 67
B. FBI report............................................. 67
C. Attorney General Janet Reno refers the matter to
Independent Counsel Kenneth W. Starr................... 70
D. FBI contacts the White House after Reno's referral..... 71
1. Freeh requests that Chairman Clinger review
background investigations rather than question
agents............................................. 71
2. Shapiro notifies White House Counsel's Office, whom
he referred to as ``affected parties,'' of
potential incrimination Nussbaum's statement....... 72
a. Sherburne's telephone tree..................... 75
2. Shapiro dispatches agents to interrogate
Sculimbrene........................................ 77
3. Shapiro made his own assessment that the matter was
not within Independent Counsel Starr's jurisdiction 79
4. Nussbaum's criminal referral....................... 81
5. Shapiro edits letter for White House Counsel that
is critical of Chairman Clinger.................... 82
VII. Politicization of the FBI.......................................84
A. General Counsel of the FBI hand delivers Gary Aldrich
book to White House Counsel............................ 87
1. Justifications..................................... 87
2. Hearing testimony.................................. 88
B. Distribution of book within the White House............ 89
1. Cheryl Mills' review............................... 89
2. Christopher Cerf 's review......................... 90
C. Summary of 4 years of politicization of the FBI........ 91
1. Past procedures for White House utilized the
Department of Justice.............................. 91
2. First Counsel's Office not staffed with agents..... 92
3. Travel Office, FBI files, and Aldrich book......... 92
VIII.Secret Service explanation......................................92
A. Introduction........................................... 92
B. The Secret Service's role in obtaining White House
access................................................. 95
C. The lists used by the White House Office of Personnel
Security............................................... 96
D. The only list they could be talking about.............. 96
E. Deactivation........................................... 98
IX. White House passes and security issues.........................100
A. Lax White House security procedures were a precursor to
FBI files issue........................................ 100
1. Problems with White House passes................... 100
2. Unsuitable personnel in charge of overseeing the
Office of Personnel Security....................... 103
B. The process by which background investigations are
conducted.............................................. 105
1. Pre-employment steps............................... 105
a. Security interview............................. 105
b. Submit to a drug test.......................... 105
c. An initial name check.......................... 105
d. An extensive FBI name check.................... 105
e. Obtaining a temporary pass..................... 106
f. Obtaining a permanent pass..................... 106
C. Background investigations of Clinton White House staff. 107
1. White House staff provided minimal cooperations to
the FBI............................................ 107
2. Problems in the background investigations of
Clinton administration staff....................... 108
D. Secret Service concerns................................ 109
1. Delays in submitting background investigations to
the Secret Service................................. 109
2. The Secret Service raised concerns about the
content of the background files.................... 110
E. White House drug testing program....................... 111
F. CIA compartmented clearances........................... 112
VIEWS
Additional views of Hon. William F. Clinger, Jr., Hon. Benjamin
A. Gilman, Hon. Constance A. Morella, Hon. John L. Mica, and
Hon. Dick Chrysler............................................. 115
Minority views of Hon. Cardiss Collins, Hon. Henry A. Waxman,
Hon. Tom Lantos, Hon. Robert E. Wise, Jr., Hon. Major R. Owens,
Hon. Edolphus Towns, Hon. John M. Spratt, Jr., Hon. Louise
McIntosh Slaughter, Hon. Paul E. Kanjorski, Hon. Gary A.
Condit, Hon. Collin C. Peterson, Hon. Karen L. Thurman, Hon.
Carolyn B. Maloney, Hon. Thomas M. Barrett, Hon. Barbara-Rose
Collins, Hon. Eleanor Holmes Norton, Hon. James P. Moran, Hon.
Gene Green, Hon. Carrie P. Meek, Hon. Chaka Fattah, Hon. Bill
K. Brewster, Hon. Tim Holden, and Hon. Elijah E. Cummings...... 116
Union Calendar No. 469
104th Congress Report
HOUSE OF REPRESENTATIVES
2nd Session 104-862
_______________________________________________________________________
INVESTIGATION INTO THE WHITE HOUSE AND DEPARTMENT OF JUSTICE ON
SECURITY OF FBI BACKGROUND INVESTIGATION FILES
_______
September 28, 1996.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Clinger, from the Committee on Government Reform and Oversight,
submitted the following
NINETEENTH REPORT
together with
ADDITIONAL AND MINORITY VIEWS
On September 24, 1996, the Committee on Government Reform
and Oversight approved and adopted a report entitled
``Investigation into the White House and Department of Justice
on Security of FBI Background Files.'' The chairman was
directed to transmit a copy to the Speaker of the House.
I. Executive Summary
A. Introduction
The committee's investigation into the unauthorized
possession of hundreds of FBI background files by the White
House remains in progress. There are many questions that are
unanswered; cooperation from the White House and other
witnesses has not been full and complete; more witnesses must
be interviewed; and, many more documents from earlier committee
requests are outstanding. Accordingly, this is an interim
report to inform the public as to the status of the
investigation in the closing days of the 104th Congress.
1. The conduct of White House officials
The FBI files matter, or ``Filegate,'' is as serious an
issue as the Clinton administration has encountered. The
discovery of the unauthorized access to so many FBI background
files on so many former White House employees is bad enough.
These files contain the most private and personal information
on an individual, his spouse and family. The fact that two
individuals, Craig Livingstone and Anthony Marceca, with
extensive political involvement and checkered pasts were in
charge of handling the files is cause for alarm and
investigation.
That present and former White House officials have not been
forthcoming in revealing who hired the two central characters
in this matter is of great concern to the committee. The
committee intends to aggressively pursue the answers. Whoever
was responsible for bringing them into the White House is
ultimately responsible for these actions. Placing the public
trust of such sensitive, private files in the hands of two
political operatives was a disaster waiting to happen. And, it
did.
In general, the FBI files issue shows a lack of respect by
the Clinton administration for proper security procedures to
protect both the President of the United States and the
national security. This is all the more so since the White
House ignored recommendations from a Democratic committee
chairman of the U.S. Senate to take security precautions in
response to reported security irregularities in the first years
of the Clinton administration.
The Clinton White House displayed a lack of respect for the
privacy and confidentiality of private citizens. The mere fact
that individuals lacking in professional skills and discretion
were put in charge demonstrates the cavalier approach of the
Clinton administration toward sensitive security matters.
During the early revelations of the FBI files
investigation, White House officials were quick to blame others
rather than take responsibility. This happened even when all
the facts were not known. First, it was touted as a routine
mistake; then it was blamed on a low-level clerk; then the
General Accounting Office; and then, the Secret Service. Each
of these explanations was thoroughly discredited.
Some White House officials, through surrogates and
unattributed background quotes in the press, continue to blame
the Secret Service, even after that theory was soundly
debunked. The fact that the White House seeks to avoid
responsibility for this matter, and instead passes the buck,
ensures that White House accountability for its own actions
will be elusive.
Furthermore, the FBI files issue made it more difficult for
the FBI and the Secret Service, the two agencies responsible
for protecting the President and performing security for the
White House, to trust actions of the White House. Prior to the
files matter coming to light, these agencies cooperated with
the White House under the presumption of a ``good faith''
relationship. Now, however, both have taken steps to implement
more skeptical, arms-length processes for future interaction
with White House officials. This unfortunate departure from
tradition is yet another result of the growing mistrust of our
political leaders in Washington. Undoubtedly, it is a black eye
on this White House.
2. The conduct of the FBI
The committee also is troubled by another serious issue
that re-emerged during the FBI files investigation: the
politicization of the FBI. Questions about a cozy relationship
between the FBI and the White House surfaced during the
committee's investigation into the White House Travel Office
firings. At the time, in a statement by FBI Director Louis
Freeh said, ``I told the President that the FBI must maintain
its independence and have no role in politics.'' \1\ These
questions raised great concern because the politicization of
law enforcement in a democracy is a swift and sure way to
trample over the civil liberties of private citizens.
Consequently, the FBI Director took steps to reverse these
perceptions of coziness. But it did not prevent the hundreds of
files from being sent to the White House without question.
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\1\ Report of Fiscal Year 1994; Federal Bureau of Investigations;
Louis Freeh, Director.
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In the course of the committee's inquiry into the files
matter, this perception resurfaced. The committee uncovered
several questionable actions by FBI General Counsel Howard
Shapiro that we find inexplicable and inexcusable. His ``heads
up'' to the White House Counsel had the effect of an early
warning to the subjects of the committee's and the Independent
Counsel's investigations of potentially damaging information.
Shapiro's delivery of a politically controversial manuscript,
joint editing of a White House letter to Director Freeh, and
possession of his own personal White House pass had a similar
effect.
This committee witnessed blatant interference in its
investigatory proceedings. Mr. Shapiro's justifications for his
actions are implausible. The committee is seriously troubled by
the interference of Mr. Shapiro in the investigations of this
committee, as well as those of the Independent Counsel. Mr.
Shapiro himself acknowledged that his ``heads up'' to the White
House was inappropriate. However, his coziness with the White
House continues. Even the perception of such a relationship
threatens the independence of the FBI. The committee calls upon
Mr. Shapiro to tender his resignation from the office of the
FBI general counsel.
The act of resignation is necessary, if the Director wishes
to restore the arms-length relationship between the FBI and the
White House, as well as the public's confidence. Failure by the
Director to do so will allow the continued erosion of
confidence in law enforcement and in the Director's own
independent leadership.
The committee has yet to determine whether colossal
incompetence or a sinister motive precipitated these events. We
have yet to learn exactly who is Craig Livingstone, who hired
him and why. Answers to these questions are necessary to
explain the true story of ``Filegate.''
The committee's investigation has sufficient information to
realize the great danger in the White House's unauthorized
acquisition of these sensitive FBI files. We know the files
were in the hands of political operatives, non-professionals,
volunteers, teen-agers in proximity to a photocopier, and
individuals without security clearances. We know there was
virtually no supervision over this sensitive process. We know
that some data was taken from the White House compound to the
home of a witness who has now claimed fifth amendment
protection against testifying before Congress. No one yet knows
where these files have been or who looked at them. The
potential for the abuse of the rights and privacy of hundreds
of private citizens remains clear and present.
The committee continues to investigate this case and
discover the true story. In the meantime, the committee cannot
yet assure the public that a lax attitude toward and disrespect
for the privacy and rights of ordinary Americans has not
gripped this White House.
B. The Matter of the FBI Files
1. The discovery of the files: Travelgate to Filegate
Since May 30, 1996, the Committee on Government Reform and
Oversight has conducted an intensive investigation into the
actions of the White House and the Department of Justice
concerning the White House's improper acquisition of hundreds
of FBI background investigation files of former Republican
officials. The genesis of this revelation of massive invasion
of privacy was with the committee's document requests for all
previously withheld files on Billy Dale.
On May 30, 1996, the committee discovered that the White
House had improperly ordered Billy Dale's FBI background file 7
months after he was fired, when the White House finally
produced 1,000 pages of the 3,000 pages of documents that were
being withheld under a May 9, 1996 invocation of executive
privilege.
The committee issued a January 11, 1996 subpoena which
included a request for all records relating to Billy Dale. The
documents were due to the committee on January 22, 1996. Prior
to the subpoena, the committee had submitted several document
requests to the White House which included document requests
relating to Mr. Dale.
Prior to May 30, 1996, the White House Counsel had
represented in February 1996 that the only categories of
documents withheld were: ``personnel'' records, attorney notes,
and ``deliberative material'' concerning investigations of
Congress and the Independent Counsel.
Throughout the spring of 1996, White House Counsel withheld
this group of documents. At no time did the White House Counsel
make any representations that he was in possession of an FBI
background file of Mr. Dale. In fact when Mr. Dale's file was
forwarded on May 30, 1996, on the morning a contempt vote was
scheduled, it was not even distinctly identified in a
production log and was just grouped among documents emanating
from ``The Counsel's Office.'' Since the document had been
obtained from the Office of Records Management who received it
from the Office of Personnel Security, the characterization of
the source of the document was misleading.
Yet if the document did come from the ``Counsel's Office''
as identified by the White House, why does the White House
Counsel Jack Quinn claim that he told the committee about the
document in February 1996 while Special Counsel Jane Sherburne,
who was at the same February 1996 meeting, claims she didn't
know about the Billy Dale file until June 4, 1996? The
Counsel's Office has provided mutually inconsistent accounts of
who knew about the Billy Dale file and when.
It is important to note that the Billy Dale file only was
produced after a vote of contempt was taken in the full
committee on May 9, 1996. In a meeting with Chairman Clinger
shortly before the contempt vote, Quinn informed the chairman
that he had not even attempted to collect certain categories of
subpoenaed documents and he had not yet undertaken a review of
the documents for privilege issues. Quinn issued a blanket
``protective'' executive privilege claim over the documents on
May 9, 1996 at the behest of the President. Personnel records
are not normally subject to executive privilege.
``Personnel records'' are distinctly different from FBI
background reports and are kept in separate and distinct
offices at the White House. Certainly the Counsel's Office,
which handles the FBI background reports, is aware of this
distinction. After all, the Counsel's Office reviews FBI
background reports and it does not ordinarily review
``personnel'' records. The White House Counsel's Office was
misleading in how it represented Billy Dale's file to the
committee. While the White House Counsel now tries to revise
the history of how they characterized this file, the actions by
Counsel staff are representative of the type of gaming that was
typical in negotiating document productions.
On May 30, 1996, when Billy Dale's file was produced to the
committee, Chairman Clinger also was notified by letter \2\
that President Clinton was formally asserting executive
privilege over the then remaining 2,000 pages of outstanding
documents. Quinn claimed that Attorney General Reno reviewed
the documents and agreed with the propriety of assertion of
executive privilege. Although Quinn represented that this
assertion of executive privilege was being made by President
Clinton, the committee never was provided any documentation of
a personal assertion by President Clinton.
---------------------------------------------------------------------------
\2\ Letter from Jack Quinn to Chairman William F. Clinger, Jr.,
Committee on Government Reform and Oversight, U.S. House of
Representatives, May 30, 1996.
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2. The discovery of the Billy Dale file
The privileged resolution was withdrawn from floor
consideration at Chairman Clinger's request in order to review
the new documents and determine the propriety of President
Clinton's executive privilege claims over the remaining 2,000
pages of identified responsive documents.
The committee began an immediate review of the 1,000 pages
already produced. That day, committee investigative staff
discovered a White House memo, dated December 20, 1993,
requesting a copy of Billy Dale's FBI background investigation
previous report. The request for Dale's file was sent to the
FBI a full 7 months after Mr. Dale and the White House Travel
Office employees had been summarily fired and an FBI
investigation announced by the White House.
The request form found among the White House's document
production was in memorandum format addressed ``TO: FBI,
LIAISON'' and ``FROM: BERNARD W. NUSSBAUM.'' \3\ The form
stated that Mr. Dale's previous report was being requested
because he was currently being considered for ``ACCESS (S)'' to
the White House.\4\ An attached memo indicated that the FBI
complied with the request and forwarded the Dale file to the
White House on January 6, 1994.\5\
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\3\ White House document CGE 43641.
\4\ According to Anthony Marceca's documents produced under
subpoena to the committee, (unnumbered) the ``(S)'' notation referred
to the type of access being sought for the individual. An ``S'' meant
that the White House was seeking access for Mr. Dale as White House
Staff rather than for an ``I'' for intern or volunteer position.
\5\ White House document CGE 43642.
---------------------------------------------------------------------------
Although the committee had previously issued, on February
7, 1996, a subpoena to the Department of Justice for all
records pertaining to Billy Dale, DOJ never produced its copy
of the document.
The committee asked Attorney General Reno to provide
information on the Justice Department's knowledge of its
failure to produce its copy of the Dale file and the White
House memo requesting it in December 1993, particularly in
light of the fact it was responsive to other Justice Department
requests and subpoenas. The Department of Justice responded,
stating that the committee had not requested the Dale file. The
memo request from Nussbaum's office was not located in its
search.
When FBI Unit Chief James Bourke was asked in a committee
deposition about DOJ's failure to produce this document, he
testified that he had ``no idea'' why, and that it wasn't his
responsibility.\6\ Mr. Bourke later explained that it was the
FBI general counsel's responsibility to request document
searches in response to congressional subpoenas and he was not
aware of any request.\7\
---------------------------------------------------------------------------
\6\ Committee deposition of James Bourke, June 17, 1996, pp. 62-63.
\7\ Id., pp. 65-66.
---------------------------------------------------------------------------
It is clear that White House officials attempted to hide
its requisition and possession of the Dale file: first, by
erroneously describing it as a personnel file instead of an FBI
background file; second, by withholding it under a blanket
executive privilege; and third, for failing to list this and
other specific documents in its final privilege log.
The committee has yet to find the reason why the White
House requested the Dale file from the FBI 7 months after he
was fired.
3. White House's changing explanations for ``Filegate''
In the first few days following the discovery, the White
House offered several conflicting explanations about how it
obtained hundreds of FBI background files. The White House
initially released statements from Craig Livingstone's attorney
claiming that the activities of Livingstone and Marceca were
all an ``innocent mistake.'' Why did the White House so quickly
endorse the explanations of Livingstone and Marceca before
getting all the facts?
4. A ``file clerk'' caused the problem--June 5, 1996
White House Special Counsel to the President Jane Sherburne
issued a statement on June 5, 1996, claiming that ``file
clerks'' performing a routine recordkeeping effort ``may have
mistakenly'' sought Mr. Dale's FBI background file.\8\ Ms.
Sherburne refused to provide the committee with the name of the
``file clerk'' that sought Dale's file. Unknown to the
committee, at the time, Ms. Sherburne met with Livingstone that
evening at the White House. Mr. Livingstone claimed to know
nothing about this growing ``problem'' at the time. Ms.
Sherburne testified that Livingstone was ``as confused and
puzzled by it'' \9\ as she was.
---------------------------------------------------------------------------
\8\ Statement by Jane Sherburne, June 5, 1996.
\9\ Sherburne deposition, p. 73.
---------------------------------------------------------------------------
5. The General Accounting Office caused the problem--June 6, 1996
By June 6, the White House issued another explanation for
the improper possession of the FBI files. The White House
stated that a ``low-level file clerk'' was not in fact at
fault; rather, that the General Accounting Office (``GAO'')
might have ``triggered'' a request for these files in the
course of its investigation of the White House Travel Office
matter. The GAO immediately denied any involvement or request
of FBI files.\10\
---------------------------------------------------------------------------
\10\ The GAO spokesperson stated that it ``never asked presidential
aides for the FBI background file of fired Travel Office director Billy
Dale'' and generally disclaimed that the GAO ever asked for or was
allowed to review any FBI background files. Pete Yost, White House
Struggles to Explain Why it Obtained Dale's FBI File, Associated Press,
June 6, 1996.
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6. ``An innocent bureaucratic mistake''--June 7, 1996
The committee soon learned that, in addition to Mr. Dale's
improperly sought FBI file, the White House had obtained at
least 338 other FBI files of prior Republican administration
officials.\11\ One of Livingstone's lawyers, David Cohen, who
had been conducting his own investigation, telephoned
Sherburne, and gave her the ``bad news'' that the White House
had ordered a lot of other files beyond Dale's. Ms. Sherburne
learned that files on former Republican administration
officials were also ordered.\12\ White House Counsel and
``Travelgate'' spokesman Mark Fabiani, immediately labeled this
matter ``an innocent bureaucratic mistake.'' \13\
---------------------------------------------------------------------------
\11\ Jane Sherburne later testified that the White House learned of
this information on June 6, 1996, through Mr. Livingstone's lawyers,
Randy Turk and David Cohen of the Washington law firm of Miller
Cassidy, LaRocca & Lewin. Sherburne deposition, July 23, 1996, pp. 74-
75.
\12\ Sherburne deposition, p. 85.
\13\ Pete Yost, Dale FBI File Part of Larger Effort to Recreate
White House Files, Associated Press, June 7, 1996.
---------------------------------------------------------------------------
Fabiani told the Associated Press on June 7, that
Livingstone's attorney's discovery provides ``a completely
innocent explanation.'' \14\ Fabiani also told the New York
Times that the ``detailee'' whom he still refused to identify
``was mistakenly given an outdated list of White House
employees dating back to the Reagan Administration,'' and that
``no one in the White House ever reviewed the files.'' \15\
Further, Fabiani informed the Associated Press that the
ordering of numerous other files was proof positive ``that Mr.
Dale's file was not singled out.'' \16\ Chairman Clinger sent a
letter to the White House on June 7 requesting all official
information on this matter, including the name of the
``mystery'' detailee.
---------------------------------------------------------------------------
\14\ Id.
\15\ Neil E. Lewis, White House Says Requests for FBI Files Was
Wider, New York Times, June 8, 1996.
\16\ Pete Yost, Baker, Fitzwater, Brady Among 330 FBI Files White
House Got, Associated Press, June 7, 1996.
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7. The Secret Service caused the problem--June 10
In a June 10, 1996 letter, Sherburne stated that the FBI
background files were assembled in the White House Office of
Personnel Security ``as a result of a mistaken understanding''
that these prior Republican administration officials
``continued to have access to the White House compound after
the start of the Clinton Administration.'' \17\ Ms. Sherburne
attached to her letter a sworn statement of Anthony Marceca,
the detailee who ordered the files. Marceca stated that he
based his requests to the FBI on Secret Service lists of White
House passholders. Contrary to Fabiani's statements to the New
York Times that ``no one in the White House ever reviewed the
files,'' \18\ Mr. Marceca revealed in his statement that he, in
fact, did examine the contents for inconsistencies. Marceca
told Livingstone's lawyer that he, in fact, read all of the
files in order to pass on any ``derogatory information'' to
Livingstone.\19\ Sherburne later explained that Livingstone's
lawyer met with Mr. Marceca on Sunday, June 9 at his law firm's
offices. Mr. Marceca dictated a statement to Livingstone's
attorney in the presence of Livingstone.\20\
---------------------------------------------------------------------------
\17\ See June 10, 1996 Special Counsel to the President Jane
Sherburne, letter to Chairman Clinger, p. 1.
\18\ Neil E. Lewis, White House Says Request for F.B.I. Files Was
Wider, New York Times, June 8, 1996.
\19\ John F. Harris, White House Admits Having Background Files,
Washington Post, June 8, 1996.
\20\ Mr. Marceca stated in his sworn deposition that he met Craig
Livingstone earlier that day at a local flea market and they went to
Craig Livingstone's house nearby. After Mr. Livingstone telephoned his
lawyer, they both went to his lawyer's offices where Mr. Marceca was
questioned and delivered a sworn statement. Marceca deposition, p. 114.
We do not know why Mr. Marceca's attorney was not present or when
his attorney received the copy of the sworn statement that was handed
to the White House the following day.
---------------------------------------------------------------------------
The frequently changing explanations in the early days show
that the White House was quick to avoid accountability by
passing the blame. It engaged in a public strategy of excuse-
making. However, each time the blame was shifted elsewhere, the
explanation was discredited. The White House continued to cling
desperately to the explanation of blaming the Secret Service,
even though it, too, was debunked in the committee hearing with
the Secret Service. In the final analysis, the White House must
take full responsibility for this fiasco and stop trying to lay
blame elsewhere.
It is unconscionable that the White House shifted the blame
from its own incompetent appointees to those of the U.S. Secret
Service. The White House mounted a stealth campaign consisting
mainly of background statements attributed to unidentified
sources, to blame the Secret Service. The Secret Service
initially refrained from defending itself, following its
tradition of not making public statements about White House
matters. Eventually, Secret Service witnesses were summoned
before the committee to explain the charges leveled against
them. Their testimony, and their extensive audit of the White
House's systems, showed that no single ``faulty'' Secret
Service list could provide justification for how Anthony
Marceca obtained hundreds of FBI background files of former
Reagan and Bush officials.
The only list from which Marceca could have obtained all of
the names released by the White House to date, is a master E-
Pass list, which lists all ``A,'' active and ``I,'' inactive
passholders for approximately the past 8 years. Mr. Marceca
testified that he thought the ``I'' next to the name on the
list indicated an individual was an intern.\21\ Mr. Marceca
would have had to deliberately order the files of people
identified as ``inactive'' in order to have utilized this list.
Mr. Marceca would have us believe that he ordered the FBI
background files of such notable figures as Ken Duberstein,
A.B. Culvahouse and Tony Blankley, without any recognition of
the names, or that they were not ``holdover interns.'' The
committee is especially skeptical of this conclusion given
Marceca's vast political experience.
---------------------------------------------------------------------------
\21\ Marceca deposition, p. 152.
---------------------------------------------------------------------------
8. Procedural safeguards against ``innocent snafus''
In an attempt to get to the bottom of the cause of the FBI
files issue, the committee held its first hearing on June 19,
1996. In that hearing, we learned how the very sensitive
matters of confidential background checks and security
clearances were handled by prior White Houses, both Democrat
and Republican.\22\ In the past, the President has appointed
only professional, circumspect and highly responsible people to
be put in charge of these most sensitive matters.
---------------------------------------------------------------------------
\22\ Security of the FBI Files: Hearing before House Committee on
Government Reform and Oversight, 104th Cong., 2d Sess., June 19, 1996.
---------------------------------------------------------------------------
In this hearing, former Counsels to the President and
Livingstone's predecessor in the White House Office of
Personnel Security testified to the careful, and painstaking
process that was followed in order to ensure the
confidentiality of these sensitive files. We learned that this
function was never handed over to political operatives, or
detailees from outside agencies, and certainly not to teen and
college age interns lacking security clearances, such as
occurred in the Clinton White House.\23\
---------------------------------------------------------------------------
\23\ Id.
---------------------------------------------------------------------------
We further learned that for the past 30 years, the White
House has engaged in a careful process of performing background
checks and granting or rejecting security clearances on
individuals to determine their suitability and stability for
working at the White House and throughout the executive branch.
The clearance and background processes exist to protect the
President as well as the national security. The case of
convicted spy Aldrich Ames is a painful reminder of the kind of
problem that can arise when vigilance in national security
matters is lacking. Given the necessity of sound procedures to
guard against breaches of security, those who oversee security
procedures themselves must be carefully selected and always
above reproach.
Nancy Gemmell, former staff assistant in the Security
Office since 1981, testified that at the beginning of the
Clinton administration Livingstone had numerous teenage interns
working inside the security office and even in the vault. The
interns did not have background investigations, security
clearances, or proper supervision. They had access to all
confidential FBI background files and a photocopier machine
stood nearby.
It is clear that supervision and accountability are
imperative to such a sensitive process. As Washington Post
editorial chief Meg Greenfield pointed out, ``[E]ven if the
accident rationale holds up, it was a plenty serious and
inexcusable accident. Neither that material nor that
responsibility should ever have been placed in those hands.''
\24\
---------------------------------------------------------------------------
\24\ Meg Greenfield, The White House Wants, Washington Post, June
24, 1996.
---------------------------------------------------------------------------
It is troubling, both to the Congress and the public, to
think the President could allow such inappropriate staff to
oversee security matters in such a careless fashion. A brief
review of the Clinton administration's history of handling
security issues shows other evidence of irresponsibility.
In March 1994 the problems and delays in obtaining White
House passes and security clearances came to light, when
congressional inquiries delved into why hundreds of White House
staffers did not yet have background investigations completed.
Associate Counsel William Kennedy was assigned responsibility
for overseeing security matters, including the issuance of
passes and security clearances. Kennedy was subsequently
relieved of his responsibilities in this area; yet Livingstone,
who was directly in charge of managing security, was not.
Later, in August 1994, Senator Dennis DeConcini, then
Democratic chairman of the Subcommittee on Treasury, Postal
Service, and General Government of the Committee on
Appropriations, which provides funding for the White House,
concluded an investigation of reported problems in
Livingstone's office. Chairman DeConcini wrote to the President
\25\ suggesting specific changes that were sorely needed in the
Personnel Security office. Those changes included replacing
Livingstone with a career professional who had a security
background. Chairman DeConcini's recommendations were
considered but not implemented by the White House, and for some
reason, Livingstone remained in charge.\26\
---------------------------------------------------------------------------
\25\ Letter from Chairman DeConcini to President Clinton, August
11, 1994.
\26\ Hearing testimony also illuminated other complaints against
Livingstone during his tenure at the White House. Specifically,
Livingstone was reprimanded by Evelyn Lieberman, Assistant to the Chief
of Staff for the First Lady, for discussing the details of a background
investigation with a young female staffer. It is not clear why the
First Lady's staff was in the chain of command to reprimand Craig
Livingstone, who reported to the Counsel's Office. Livingstone also had
a police report filed against him in November 1993, when he threatened
a female neighbor because her dog was barking. Livingstone reportedly
said he would ``beat her face in'' if she did not quiet her dog.
Livingstone admitted to the police officer that he did make the threat.
Security of the FBI Files: Hearing before the Committee on Government
Reform and Oversight, 104th Cong., 2d Sess., June 26, 1996.
---------------------------------------------------------------------------
It is clear that security procedures are only as effective
as the professionals who manage them. Following the committee's
first hearing, two points became evident. First, there were
serious security problems at the Clinton White House; second,
those responsible for White House security under the Clinton
administration were hardly professional and were a stark
departure from past administrations.
9. Livingstone and Marceca
Among the foremost questions the committee sought to
investigate regarding how and why the White House obtained
these FBI background files, was, ``Who is Craig Livingstone?''
``Who recommended him?'' ``Who hired him?'' and given his
background, ``Why was he put in charge of such a sensitive job
at the White House?'' These are seemingly simple questions, but
complete answers to them are still not forthcoming.
Livingstone did not have the professional background
necessary to perform the sensitive functions of the Personnel
Security Office. Yet he was put in charge of that office, and
then managed to remain in that role despite the frequent
turnover of White House Counsels. Conventional wisdom would
suggest that management turnovers bring staff reorganizations.
Instead, over a 3-year period, he enjoyed a 40 percent salary
increase by touting his record as a ``team player'' \27\ while
keeping bankers' hours.\28\ Numerous questions still remain
about who brought Craig Livingstone into the Clinton inner
circle as security chief. The committee has yet to piece
together a clear picture of who is responsible for Livingstone
working in the White House after the inauguration. Given the
information available, did former White House Counsels Bernard
Nussbaum, Lloyd Cutler, Abner Mikva and present Counsel to the
President Jack Quinn really believe that the political advance
man and ex-bouncer was the best individual for this sensitive
position?
---------------------------------------------------------------------------
\27\ See letter from Livingstone to then-Counsel to the President
Abner Mikva, ``It would be wrong not to approve my request . . . I
apologize for my tone, but this is my last try to remain part of the
team.'' August 28, 1995, White House document, CGE 48058.
\28\ White House documents, CGE 47858-47860. Times of Livingstone's
entry and exit White House complex.
---------------------------------------------------------------------------
Mr. Nussbaum testified before this committee that he does
not know who hired Livingstone. Instead, he suggested that the
Chief of Staff 's office may have been involved.\29\ Mr.
Livingstone's supervisor, Rose law firm partner William
Kennedy, said in all committee depositions, as well as
hearings, that he could shed little light on who brought
Livingstone into the White House. Mr. Livingstone testified to
the committee he does not know who recommended him. He gave an
arguably tortured explanation of his journey into the White
House as a permanent employee. Those who previously heaped high
praise on Livingstone, such as the President's senior advisor
George Stephanopoulos, virtually denied knowing him to the
press. President and Mrs. Clinton's denials of hiring, or
participating in the hiring of Craig Livingstone is in direct
conflict with statements from their own senior staff to career
FBI agents.
---------------------------------------------------------------------------
\29\ Committee deposition of Bernard Nussbaum, July 11, 1996, p.
21.
---------------------------------------------------------------------------
Both Livingstone and Marceca had extensive histories as
campaign advance men and political operatives. Marceca was
hand-picked by Livingstone for his White House detail through
his personal request for Marceca to then-Associate Counsel
Kennedy. Sworn testimony by Dennis Casey, a former Gary Hart
campaign consultant who worked with Livingstone and Marceca on
the campaign in 1984, shed some light on their possible motives
for gathering information on Republican officials and fired
Travel Office workers. Casey testified that both Livingstone
and Marceca in the past had endorsed the utilization of
personal information to manipulate support for their political
candidate.
Documents show that Livingstone worked in ``counter-events
operations'' during the 1992 Clinton-Gore campaign, and
deployed partisan ``tricks'' to disrupt Former President Bush's
campaign for re-election.\30\ Livingstone's police record shows
a report filed against him during his tenure in the White House
where he was alleged to have physically threatened a female
neighbor. Annoyed at her barking dog, Livingstone threatened to
``beat her face in.'' \31\ The Officer who questioned
Livingstone reported that he admitted to making the threat. Mr.
Marceca has had his own brushes with the law in previous jobs
in Texas and Pennsylvania.
---------------------------------------------------------------------------
\30\ Resume of David Craig Livingstone, White House document DGE
46320-46234.
\31\ Montgomery County, MD Department of Police, Event Report,
Report of Simple Assault, November 7, 1993.
---------------------------------------------------------------------------
In the committee's second hearing, we learned that Marceca
left the White House compound with computer disks, which
included details of the confidential files of National Security
Council staffers and other White House employees.\32\ Documents
produced by Marceca also indicated that his duties in the White
House encompassed more than just filling out forms. Marceca's
memoranda to Livingstone included analyses of the backgrounds
of individuals who could not pass muster on security
issues.\33\ Mr. Marceca appeared to be providing legal advice
to facilitate the ``cleansing'' of background problems.
Although Marceca's detail at the White House was not renewed
after his background investigation exposed some problems, he
continued frequent entry both as a volunteer and as a visitor
with access until June 1996. Documents produced by the White
House suggest that Marceca played a larger role in White House
security matters than the Clinton administration has admitted
to the public.
---------------------------------------------------------------------------
\32\ Security of the FBI Files: Hearing before the Committee on
Government Reform and Oversight. 104th Cong., 2d Sess., June 26, 1996.
\33\ Memorandum from Marceca to Livingstone, undated, Marceca
document Bates Stamp No. 117.
---------------------------------------------------------------------------
Further, in late 1993 and 1994, Livingstone was attempting
to obtain a Presidential appointment for Marceca, either as an
Inspector General or a U.S. Marshal. Even after Marceca's
background investigation, completed in December 1993, exposed
suitability problems, attempts to employ Marceca continued.
When that endeavor failed, Livingstone again tried to detail
Marceca to the Personnel Security office, contrary to Associate
Counsel Kennedy's testimony that he thought Marceca should just
``go back to where he was.'' \34\ Strangely, on March 17, 1994,
it appears Livingstone withdrew his request to Secretary of
Defense Perry for Marceca's detail.\35\
---------------------------------------------------------------------------
\34\ Kennedy deposition, June 18, 1996, p. 41.
\35\ Letter from Livingstone to Secretary Perry, March 17, 1994,
White House document CGE 55749.
---------------------------------------------------------------------------
However, that was not the end of Marceca's work for the
White House. Phone messages Marceca left for Livingstone and
other documents show that Marceca was employed by the White
House on a number of advance trips for President Clinton and
other officials. One message from Marceca stated that he had
just returned from a trip with Secretary Perry, and wanted to
talk to Livingstone about what he had observed. Another message
asked if Livingstone wanted to ``be an agent working for
Tony.'' \36\ Why were individuals with questionable backgrounds
travelling with the President? Was Marceca asked to make
observations of his trip with Secretary Perry? What information
was he sharing with Livingstone? Such documents raise serious
questions about the White House's discretion in employing
individuals with highly questionable backgrounds for important
security positions.
---------------------------------------------------------------------------
\36\ White House document DBI 54256.
---------------------------------------------------------------------------
In addition to the dubious backgrounds of Livingstone and
Marceca, their various sworn statements about the
requisitioning of the files appear inconsistent both within and
between their own statements. Additionally, their statements
conflict with sworn testimony provided by the FBI, the Secret
Service and a former veteran employee of the Security Office,
Nancy Gemmell. Furthermore, since Marceca's appearance at the
committee hearing on June 26, 1996, he has refused to provide
further testimony to the House of Representatives or the
Senate, pleading his fifth amendment right against self
incrimination. Livingstone was kept on in his position as
director even after the files matter was uncovered, and was not
placed on administrative leave until he personally made the
request on June 17, 1996.\37\ Mr. Livingstone resigned at a
hearing before this committee on June 26, 1996.\38\
---------------------------------------------------------------------------
\37\ See June 20, 1996 letter from Jack Quinn to Chairman Clinger,
p. 2.
\38\ Security of FBI Background Files hearings, June 26, 1996.
---------------------------------------------------------------------------
10. Secret Service hearings
The Secret Service provided numerous briefings to members
of House and Senate committees and testified at two hearings on
this matter. At the Government Reform and Oversight hearing, it
was finally resolved that no possible conglomeration of Secret
Service lists could have documented what is now believed to be
more than 400 individuals as active passholders.
Whatever the reason for the White House's assorted and
conflicting explanations, it became clear that the Secret
Service was not at fault as evidenced by Livingstone's own
statement to Special Agent Cole on June 7, 1996 when he said,
``We just wanted you guys to know that we weren't blaming the
Secret Service. Using an old list was our fault, and we had the
current stuff you guys gave us. I don't know what happened.''
\39\
---------------------------------------------------------------------------
\39\ Cole deposition, p. 37.
---------------------------------------------------------------------------
The Secret Service spent an extraordinary amount of time
and resources carefully reviewing the quality of the
information it provided to the White House. Countless hours
were dedicated to examining if any material it provided to the
White House could have been responsible for the hundreds of
improperly requested FBI background files. In the end, the
Secret Service could not identify any systemic problems which
would explain how this happened.
11. FBI internal investigation and report
Director Freeh issued a June 5, 1996 press release denying
that he had any prior knowledge of the White House's request
for Billy Dale's file and announcing that he had tasked the FBI
general counsel, Howard Shapiro to conduct an investigation
into the matter and report his findings to Independent Counsel
Kenneth W. Starr, who had become involved on June 6, 1996,
because of links to his Travel Office investigation.\40\
---------------------------------------------------------------------------
\40\ Notification to the court pursuant to 28 U.S.C. Sec. 592
(a)(1) of the initiation of a preliminary investigation and application
to the court pursuant to 28 U.S.C. Sec. 593 (c)(1) for the expansion of
the jurisdiction of an Independent Counsel.
---------------------------------------------------------------------------
Director Freeh explained that any contacts between the
White House and the FBI were governed by the Justice
Department's July 3, 1993, post-Travel Office firing policies
\41\ and the Attorney General's November 15, 1994 policy
regarding White House contacts. Director Freeh assured the
public that these policies ``are adhered to scrupulously.''
\42\
---------------------------------------------------------------------------
\41\ Memorandum to John Collingwood, Inspector in Charge, Office of
Public and Congressional Affairs, FBI, from Carl Stern, Director of
Public Affairs; subject: contact with the White House and other
executive branch agencies; June 13, 1993.
\42\ June 5, 1996 Justice Department FBI immediate release.
---------------------------------------------------------------------------
An official at FBI headquarters informed the press that
Director Freeh intended ``to make sure that the public's
perception is that there's not some cozy relationship between
the White House and bureau executives.'' Another FBI agent
added that Director Freeh ``certainly doesn't want the bureau
mixed up in this stuff.'' \43\
---------------------------------------------------------------------------
\43\ Wesley Pruden, The Limited Hangout at the White House,
Washington Times, June 7, 1996, p. A4.
---------------------------------------------------------------------------
On June 13, 1996, the FBI revealed that an additional 71
files of prior Republican administration officials had been
requested by and delivered to the White House by the FBI.
On June 14, 1996, the FBI issued its ``Report on the
Dissemination of FBI File Information to the White House,''
revealing that 408 files were sought by and delivered to the
White House ``without justification.'' Director Freeh noted
that ``the prior system of providing files to the White House
relied on good faith and honor'' of White House employees and
that ``unfortunately, the FBI and I were victimized.'' Director
Freeh noted, ``Among the unquestionably unjustified
acquisitions were reports relating to discharged Travel Office
employees Billy Ray Dale and Barnaby Brasseux.'' Director Freeh
also acknowledged that these were ``egregious violations of
privacy.'' Director Freeh promised the American people that
``it will not happen again on my watch.'' \44\
---------------------------------------------------------------------------
\44\ Report of the FBI general counsel on the dissemination of FBI
file information to the White House, June 14, 1996.
---------------------------------------------------------------------------
As FBI Director Freeh stated in his report, the process has
always relied on the ``good faith and honor'' of those
involved.\45\ There are inherent risks involved when, instead
of ``good faith and honor,'' political operatives, and
inexperienced teenagers are put in charge of this highly
sensitive process.
---------------------------------------------------------------------------
\45\ Id.
---------------------------------------------------------------------------
12. Attorney General Reno refers FBI files investigation to Judge Starr
Independent Counsel Kenneth Starr announced on June 18,
1996, that he did not believe his office had authority to
pursue the investigation of the files matter without a request
from the Attorney General to expand the scope of his authority.
In response, Attorney General Reno announced that day that FBI
Director Freeh would be asked to conduct a thorough
investigation into the matter. Following this announcement, the
White House wrote to Chairman Clinger promising to provide full
cooperation with the FBI's investigation and announcing changes
being instituted in the White House concerning its procedures
to obtain and review FBI background investigation files.\46\
Subsequently, on June 20, 1996, Attorney General Reno filed a
motion with the District of Columbia Federal Circuit Court
requesting an expansion of Judge Starr's investigative
authority so that he could pursue this improper use of FBI
background files. The order was signed on June 21, 1996.\47\
---------------------------------------------------------------------------
\46\ FBI General Counsel Howard Shapiro stated that he did meet
with Independent Counsel Starr's office during this short period where
he had authority to investigate this matter. Although Mr. Shapiro did
not provide the details of this briefing, the Independent Counsel
provided highly confidential background information to Mr. Shapiro on
the status of its investigation at that time. It is unclear whether Mr.
Shapiro in turn relayed this information to the White House as an
``interested party'' or to the Justice Department.
\47\ Notification to the court pursuant to 28 U.S.C. Sec. 592
(a)(1) of the initiation of a preliminary investigation and application
to the court pursuant to 28 U.S.C. Sec. 593 (c)(1) for the expansion of
the jurisdiction of an Independent Counsel.
---------------------------------------------------------------------------
13. Improper contacts with the FBI
The committee's investigation continued. Among the many
questions, which the committee sought to answer, was the hiring
of Craig Livingstone. Thus, at the request of FBI Director
Freeh, Chairman Clinger, on July 18, 1996, went to Bureau
Headquarters to review Livingstone's FBI background file.
Contained in the file was a 1993 agent interview of Bernard
Nussbaum wherein Nussbaum is recorded as telling Agent
Sculimbrene that Craig Livingstone had come ``highly
recommended by Hillary Clinton.'' The statement is in direct
conflict with sworn statements made by Nussbaum in a June 26,
1996 committee hearing. In the hearing, Nussbaum stated that he
did not know who brought Livingstone into the White House for
the position in the security office. He also stated that he
never spoke to the First Lady about Livingstone.\48\
---------------------------------------------------------------------------
\48\ Security of FBI Files hearings, June 26, 1996, p. 57.
---------------------------------------------------------------------------
Prior to the chairman's review of Livingstone's FBI
background file, FBI General Counsel Howard Shapiro provided
the White House with a ``heads up'' about the highly pertinent
information related to Mrs. Clinton's involvement in
recommending Livingstone. The committee is greatly troubled by
the fact that Shapiro provided advance notice of this
information to the White House. The FBI has yet to identify any
legitimate purpose in Shapiro's actions. The FBI failed to
contact the Independent Counsel, which had clear jurisdiction
over this matter. Mr. Shapiro's specious argument is that ``the
Bureau had a responsibility to advise affected parties.'' \49\
Mr. Shapiro ignored the Attorney General's admonition that any
FBI involvement would create a ``political conflict of
interest.'' Mr. Shapiro's actions potentially damaged both the
committee's and the Independent Counsel's investigations, while
exacerbating the already growing perception of politicization
of the FBI.
---------------------------------------------------------------------------
\49\ Letter from FBI General Counsel Howard Shapiro to Chairman
Clinger, July 19, 1996.
---------------------------------------------------------------------------
Subsequent to the revelation of the Nussbaum interview,
Shapiro dispatched two senior FBI supervisory agents to now-
retired Agent Dennis Sculimbrene's home to formally interview
him about the Nussbaum statement. Agent Sculimbrene got the
impression that the White House was unhappy about his interview
report on Bernie Nussbaum. The sending of agents to
Sculimbrene's home involved Shapiro in an operational matter,
which is inappropriate for the general counsel.
Further conflicts uncovered in Shapiro's testimony before
this committee include his hand delivery of former FBI agent
Gary Aldrich's book, ``Unlimited Access,'' to White House
Counsel Jack Quinn in February 1996.\50\ The book was in pre-
publication form and in the possession of the FBI solely for
its review. Shapiro testified that in giving a copy to the
White House he was notifying them of possible security risks
posed by information revealed in the book. However, the White
House has yet to produce a complete response to the committee
on this matter.
---------------------------------------------------------------------------
\50\ Security of FBI Files hearing, August 1, 1996, p. 33.
---------------------------------------------------------------------------
Shapiro's frequent contacts with the White House is
evidenced by the fact that he is the first FBI general counsel
in over a decade to have a permanent White House pass, as well
as his assistance to White House Counsel Quinn in drafting a
letter to Director Freeh. Incredibly, Shapiro offered his
advice on the letter, which attacked both the FBI and Chairman
Clinger.
In light of Attorney General Reno's determination that the
FBI and the Justice Department refrain from investigating
anything related to the White House's acquisition of FBI
background files, the committee finds Shapiro's interference in
the matter clearly and totally inappropriate. Mr. Shapiro's
contacts with the White House appear to be in direct conflict
with his position as general counsel of the FBI and suggest a
far too cozy relationship between the White House and the FBI.
C. FINDINGS
The committee, while investigating the matter of the
security of FBI background files has made the following
findings:
FBI Background files often include the most
sensitive and confidential personal and financial
information about the individual being reviewed.
The White House improperly requested hundreds
of confidential FBI background files seemingly without
any justification. This was a violation of the
constitutional rights and private lives of many
upstanding citizens, whose files were requisitioned and
reviewed by White House employees. Many of the
individuals were political appointees of the Reagan and
Bush administrations. This leads to the possibility
that the Clinton administration was attempting to
prepare a political ``hit list'' or ``enemies list''
with the most sensitive and private information
possible.
The White House Office of Personnel Security
and the FBI maintained a system of mutual convenience
which allowed low level staff to access any file
without question by the FBI. The Clinton administration
has, on a number of occasions, failed to implement
safeguards that would have prevented this lapse in
security. Further, the longstanding policy of the FBI,
which relied on the honor of White house employees, was
exploited by Clinton administration employees.
FBI General Counsel Howard Shapiro provided
confidential FBI law enforcement information about Mrs.
Clinton's role in bringing Livingstone to the White
House. When Shapiro realized that the information
contained in Livingstone's FBI background file could
damage Nussbaum and Mrs. Clinton, he immediately
contacted the Office of White House Counsel and read
verbatim the incriminating contents of Livingstone's
file.
Once White House Counsel Jane Sherburne
learned that the information contained in Livingstone's
file could damage Nussbaum and Mrs. Clinton, Sherburne
contacted Mrs. Clinton regarding the incriminating
information.
Sherburne possibly violated ethical standards
by informing private attorneys for Bernard Nussbaum and
Craig Livingstone about confidential FBI law
enforcement information. On the day before reports of
his testimony before a grand jury, lawyers for Nussbaum
were told about evidence uncovered in a search of
Livingstone's file that contradicted Nussbaum's
testimony before the Committee on Government Reform and
Oversight. Mr. Livingstone received the same
information.
White House Office of Personnel Security staff
failed to properly secure confidential FBI law
enforcement files. The committee was provided with
testimony and evidence that staff and interns without
the necessary clearances had unfettered access to the
highly sensitive material in the FBI background files
including that of more than 400 former Bush and Reagan
administration officials.
The FBI continued to involve itself in the
investigation of the FBI files matter after receiving
notice from the Attorney General that a conflict of
interest existed between the FBI and the White House
concerning this matter. Mr. Shapiro notified the White
House about the incriminating contents of Livingstone's
background file before the committee was allowed to
review it. Shapiro assisted with correspondence between
the White House and the FBI regarding the FBI files
matter and the investigation by the Committee on
Government Reform and Oversight.
Army Detailee Anthony Marceca was given
unfettered access to confidential FBI law enforcement
files and allowed to remove confidential information
from the White House, despite his own inability to
receive White House clearance. Marceca's removal of
information in those files from the White House was
inappropriate.
FBI General Counsel Howard Shapiro provided
the White House Counsel a pre-publication copy of Gary
Aldrich's book, thus allowing distribution of the book
to the President's political damage control operation.
Mr. Shapiro improperly allowed the White House access
to a manuscript provided to the FBI under an employment
agreement with a former agent without any valid basis
for doing so.
The White House withheld from Congress
responsive subpoenaed documents that further implicated
individuals under criminal investigation. The White
House began the release of disputed documents only
under threat of contempt.
The White House asserted executive privilege
over documents that had no nexus to the President or
his need to communicate with his staff concerning
issues involving the Presidency or national security.
Many of the documents received by the committee, over
which the President made an executive privilege claim,
contained routine administrative information or
communications on issues having no bearing on issues of
national security.
D. Recommendations
The committee has undertaken a preliminary investigation
into the improper release of FBI background files to the White
House. This interim report is the result of that investigation.
Hearings, depositions, and document review have produced
additional questions still under review. The committee is not
satisfied that the public has the answers to many of these
concerns. It would therefore be imprudent to make
recommendations on a set of incomplete facts. The only
exception concerns Mr. Shapiro's activities. Even though a
complete review of Shapiro's activities has not been completed,
it is clear from the evidence available to the committee that
Shapiro's actions were grossly inappropriate and that he
should, therefore, resign.
This committee owes it to the individuals whose files were
improperly obtained by the White House to continue a thorough
investigation of these circumstances to find out what happened
to their most private information.
The committee suggests a broad scope for the subsequent
stages of this important investigation. It, therefore, puts
forward a set of questions for the further consideration of the
committee.
1. Who hired Craig Livingstone?
2. What list was used to make up the White House requests
for FBI background files?
3. Who reviewed the contents of FBI background files for
Reagan and Bush administration officials?
4. Were the contents of the FBI background files ever
transmitted electronically to any computer database in or
outside the White House complex?
5. What effect do new procedures have on the White House
pass process and FBI background checks?
7. What standard procedures are in place to ensure that
those without the proper clearances do not have access to
material protected by the Privacy Act, which are stored in the
White House?
8. What policies should be implemented to ensure that FBI
officials do not interfere with ongoing investigations outside
the Bureau's jurisdiction?
II. White House Office of Personnel Security
A. History of the Office of Personnel Security
The White House conducts some level of background check on
every individual requesting access to the complex and on every
individual who is being considered for a Presidential
appointment. There are several ways in which this background
check can be conducted, ranging from a name check to a full
field background investigation. Historically, the White House
Counsel has been responsible for reviewing the FBI background
reports of individuals for suitability purposes. To assist the
Counsel in processing the background reviews, the Johnson
administration created the White House Security Office.\51\ The
head of the office, holding the title of Assistant to the White
House Counsel for Security, reported directly to the White
House Counsel or Deputy White House Counsel.\52\
---------------------------------------------------------------------------
\51\ Prepared written statement of C. Boyden Gray, Counsel to
President George Bush, p. 2, in committee files.
\52\ Id.
---------------------------------------------------------------------------
From its origination up to the Clinton administration, the
White House Security Office was responsible for coordinating
paperwork to ensure that all of the forms that appointees were
required to complete before an FBI background investigation
could be initiated were in order. In addition, the office
organized and maintained the background files and reports which
were sent to the White House from the FBI. The Director of the
Security Office was responsible for the initial review of the
FBI background reports for any information which should be
brought to the attention of the White House Counsel or his
deputy.\53\ This position was described by a former White House
Counsel as ``a largely thankless job, requiring long hours,
superb organizational skills, attention to detail, and total
discretion.'' \54\
---------------------------------------------------------------------------
\53\ Id.
\54\ Id.
---------------------------------------------------------------------------
Beginning in 1972, during the Nixon administration, Jane
Dannenhauer was appointed as the Assistant to the Counsel to
the President with the responsibility of directing the White
House Security Office.\55\ Ms. Dannenhauer served in her
capacity as Assistant to the Counsel during the Nixon, Ford,
Reagan and Bush administrations, as well as the first 2\1/2\
months of the Carter administration.\56\ Ms. Dannenhauer
reported directly to either the White House Counsel or Deputy
White House Counsel, and was the only person in the Security
Office authorized to review the FBI background files.\57\
---------------------------------------------------------------------------
\55\ Security of FBI Files hearing, June 19, 1996, p. 38.
\56\ Security of FBI Background Files hearing, June 19, 1996, p.
38.
\57\ Prepared written statement of C. Boyden Gray, Counsel to
President George Bush, pp. 11-12.
---------------------------------------------------------------------------
Previous White House Counsels testified to this committee
that in each administration in which they served, the
background investigation process was limited to a very small
number of high level individuals. Those individuals included
the White House Counsel to the President, the Deputy White
House Counsel and the Assistant to the Counsel for Security. In
a small number of instances, aspects of a particular FBI
background report would have been discussed with a senior-level
staff member on a need to know basis, without sharing the
file.\58\ ``Background files were never shown to others in the
White House, including the President, the Vice President, the
chief of staff or the director of presidential personnel,''
according to Richard A. Hauser, Deputy Counsel to President
Reagan.\59\
---------------------------------------------------------------------------
\58\ Security of FBI Background Files hearing, June 19, 1996, pp.
23-26.
\59\ Security of FBI Background Files hearing, June 19, 1996, p.
26.
---------------------------------------------------------------------------
1. White House Security Office practice and procedures
When a new administration takes office it must complete
background investigations on all new appointees and employees
with White House access. In the past, a new administration
began the process during the transition. It is important to
complete this process in a timely manner to insure the security
of both the President and vast amount of sensitive national
security information contained within the White House. This
process began with what is called a ``name check.'' \60\ To
complete a name check an individual's name and Social Security
number are sent to the FBI where it is checked against various
databases to see if there was any recent potentially illegal
activity in the public record.\61\
---------------------------------------------------------------------------
\60\ Prepared written statement of C. Boyden Gray, p. 3.
\61\ Security of FBI Files hearing, June 19, 1996, p. 20.
---------------------------------------------------------------------------
When the FBI receives the name check request, it
disseminates the request to several internal units. These units
check four different computer databases and the FBI central
indices. The databases provide information on criminal
histories, arrest records, outstanding warrants, as well as
information on organized crime, terrorism, and foreign
counterintelligence.\62\ In addition, a name check request
requires the FBI to look to see whether a ``copy of a previous
report'' is on file for the individual. An FBI research analyst
then reviews the summary memoranda contained in an individual's
file to determine which reports to forward to the White
House.\63\ All of the information is then sent to the White
House. In previous administrations, once an individual was
cleared through the name check process, he was eligible for
temporary access to the White House pending a full field FBI
background investigation.\64\
---------------------------------------------------------------------------
\62\ Report of the FBI general counsel on the dissemination of FBI
file information to the White House, June 14, 1996, p. 19.
\63\ Id., p. 20.
\64\ Prepared written statement of C. Boyden Gray, p. 3.
---------------------------------------------------------------------------
Any individual seeking repeated or permanent access to the
White House and all Presidential appointees were required to go
through a full field background investigation.\65\ The FBI full
field background investigations were necessary in order to
review the background of individuals at the White House for
security reasons and also for the President to make a
suitability determination.
---------------------------------------------------------------------------
\65\ Id.
---------------------------------------------------------------------------
To begin this process, the individual is required to fill
out a ``Standard Form 86,'' (SF-86) which provides personal
data on the individual and authorizes the FBI to conduct the
background investigation. As with the FBI background
investigations, previous administrations only permitted the
Director of the Security Office, the White House Counsel and
Deputy White House Counsel to review the SF-86's.\66\ In
previous administrations, the bulk of the background
investigations should normally be processed and reviewed during
the first 6 months of the administration.\67\
---------------------------------------------------------------------------
\66\ Security of FBI Files hearing, June 19, 1996, p. 46. (A.B.
Culvahouse, Counsel to President Reagan, testified that out of 12
lawyers in the White House Counsel's Office, only 2 others were
authorized to review the forms. The Deputy White House Counsel and a
designated Counsel's Office attorney was authorized to look at judicial
forms.)
\67\ Former Counsel to President Bush, C. Boyden Gray stated, ``The
inevitable backlog that results from so many investigations being
requested at once requires the Security Office staff to spend 12-14
hour days just to manage the paper flow.'' Prepared written statement
of C. Boyden Gray, p. 4.
---------------------------------------------------------------------------
2. Updating the background files
When an administration leaves the White House it is
required to archive all of its papers pursuant to the
Presidential Records Act.\68\ Among the records required by
this act to be archived are the FBI background files of all of
the administration's appointees and employees. These FBI files
are archived and placed under seal in the Presidential Library
for 20 years. When the incoming administration arrives, it must
recreate the files for those ``holdover'' employees who would
be continuing their employment at the White House. The task of
recreating the files fell to the White House Security Office.
---------------------------------------------------------------------------
\68\ 44 U.S.C. Sec. Sec. 2201-2207.
---------------------------------------------------------------------------
In prior administrations, the Security Office only began
the process of recreating the holdover employees' files after
all of the paperwork on the new appointments had been
completed.\69\ The rationale for requesting these files after
all the new employee paperwork had been completed was twofold.
First, the holdover employees had already been cleared for
access by a previous administration.\70\ And second, by the
time the paperwork had been processed on the new employees, the
list of White House employees would be more current. It was
necessary to obtain the FBI reports in order to update the
background investigations of the holdover employees, who, along
with all other White House pass holders, needed an update of
their background investigation every 4 years.\71\ Every new
administration begins with the same information and every new
administration has had to recreate the files of the permanent
White House employees.
---------------------------------------------------------------------------
\69\ Prepared written statement of C. Boyden Gray, p. 7.
\70\ Id., p. 6.
\71\ Prepared written statement of Jane Dannenhauer, p. 1 (in
committee files).
---------------------------------------------------------------------------
The procedure which each previous administration \72\
followed to update its background files essentially consisted
of four steps:
---------------------------------------------------------------------------
\72\ Each administration since the Nixon administration has
followed this procedure.
---------------------------------------------------------------------------
(1) the Security Office would obtain from the Secret
Service and verify a current list of pass holders with
access to the White House complex;
(2) the office would request from the FBI copies of
the previous background reports concerning those on the
list;
(3) the head of the office would review the prior
reports to ascertain the date of the last background
check, and to bring any derogatory information to the
attention of the White House counsel; and
(4) the Security Office would send a new SF-86 to be
completed by employees as they came due for an update
investigation.\73\
---------------------------------------------------------------------------
\73\ Prepared written statement of C. Boyden Gray, p. 7.
---------------------------------------------------------------------------
Although the Security Office would rely on the Secret Service
lists for current and accurate information in its lists of
individuals that still had access to the White House, it was
normal practice to cross reference and double check the
lists.\74\ It is solely the responsibility of the White House
Security Office to inform the Secret Service that an individual
should be taken off the access lists and listed as ``inactive''
to ensure that only present employees remain on the ``active''
Secret Service lists.\75\
---------------------------------------------------------------------------
\74\ Id., p. 8; Security of FBI Background Files June 19, 1996, p.
50.
\75\ Security of FBI Background Files hearing, July 17, 1996, p.
59.
---------------------------------------------------------------------------
In the first year of a new administration, the Security
Office would proceed with its updates on an office by office
basis to determine who the holdover employees were that needed
to have their files recreated.\76\ The Security Office would
fill out a standard request form ordering a copy of the
previous FBI report of the holdover employee. When the previous
report was received in the Security Office, the Director of the
office would personally review the file to determine and make a
notation of the date when that the individual was due for a
background investigation update.\77\ That individual's name
would then be added to the list, organized on a monthly basis,
of individuals coming due for an update of their FBI background
report.\78\ The Director of the office would also review the
file for derogatory information, ultimately sending the report
on to the Deputy White House Counsel for adjudication.\79\
---------------------------------------------------------------------------
\76\ Prepared written testimony of C. Boyden Gray, p. 8.
\77\ Id., p. 9.
\78\ Id.
\79\ Id., p. 10.
---------------------------------------------------------------------------
Because the Security Office maintained all of the
confidential files on every individual with current access to
the White House complex, the office was equipped with a
separate vault room that was attached to the Security Office.
All of the files were kept in the vault which was equipped with
cabinets containing 70 rotating bins.\80\ The files were stored
in the bins alphabetically. The Security Office vault could be
accessed only by entering and going through the Security
Office. The door to the vault had a lock with a combination
which only a few authorized individuals were given. The only
other persons with access to the vault were members of the
Office of Records Management.\81\ This Office uses two of the
four file cabinets in the Security Office vault to store its
records. Terry Good, the Director of the Office of Records
Management testified that his office stores materials from the
White House office that ``ranges from items that are considered
confidential through security classified materials.'' \82\
During the Clinton administration, Records Management also
stored White House Counsel's Office files on all individuals
being considered for appointments throughout the
government.\83\ Although the Office of Records Management file
cabinets have separate locks, Good testified that they are
often left unlocked during the day.\84\
---------------------------------------------------------------------------
\80\ Livingstone, June 14, 1996, p. 38.
\81\ Good, June 25, 1996, p. 16.
\82\ Id.
\83\ Id.
\84\ Id., p. 17.
---------------------------------------------------------------------------
3. The transition from the Bush administration to the Clinton
administration
Since the end of the Nixon administration, Jane Dannenhauer
briefed the attorneys in each new administration on what the
Security office was and what it did. As she had done with past
administrations, Dannenhauer met with several of the attorneys
from the Clinton White House Counsel's Office before she left
her position at the White House in March 1993.\85\ She
initially met with four or five of the attorneys, none of whom
would be supervising the Security Office.\86\ Dannenhauer then
met with Craig Livingstone, who would ultimately become the new
Director of the Security Office.\87\ Ms. Dannenhauer testified
that Livingstone appeared only to work there ``part-time''
while she was there. Mr. Livingstone ``would come in and maybe
be there a half a day.'' \88\ Several weeks after the
administration took office, Bill Kennedy, the Assistant White
House Counsel who would be supervising the office, finally met
with Ms. Dannenhauer.\89\
---------------------------------------------------------------------------
\85\ Security of FBI Background Files hearing, June 19, 1996, p.
70.
\86\ Id.
\87\ Id.
\88\ Id., p. 82.
\89\ Id.
---------------------------------------------------------------------------
Ms. Dannenhauer's assistant since 1981, Nancy Gemmell,
stayed on in the White House Security Office for 7 months into
the new administration.\90\ Although the office still was not
entirely staffed at the time she left, Gemmell assisted in
training the new employees in the procedures of the office.\91\
She testified that she explained the Secret Service lists to
the people working in the office and informed them that the
initial list received from the Secret Service had to be
updated.\92\ Ms. Gemmell testified that an updated list needed
to be ordered from the Secret Service once personnel decisions
were made, especially in offices where there would be a high
turn-over.\93\ The Clinton administration kept Gemmell on until
she retired on August 13, 1993.
---------------------------------------------------------------------------
\90\ Id., p. 48.
\91\ Id., p. 48.
\92\ Id., p. 50.
\93\ Id., pp. 50-51.
---------------------------------------------------------------------------
B. Clinton administration Personnel and Operation of the Office
1. Who hired Craig Livingstone?
Craig Livingstone, the new Director of the White House
Security Office quickly came to the forefront of the
investigation of the unauthorized requests of FBI background
files. Although the office was supposed to maintain primarily
the same functions as in previous administrations, the Clinton
administration changed the name from the White House Security
Office to the Office of Personnel Security (OPS) after
Livingstone took over in early February 1993. Livingstone
remained in this position until he resigned, announced at the
committee's June 26, 1996 hearing.
Mr. Livingstone enjoyed a particularly long tenure,
outlasting three White House Counsels and numerous
supervisors.\94\ However, nobody in the Clinton administration
has taken responsibility for bringing Craig Livingstone into
the White House. Livingstone himself cannot remember who hired
him for the position of Director of OPS. He explained that he
had been around during the campaign as an advance man, as well
as assisting at the 1992 Democratic National Convention,
``coordinating security'' for the Democratic Finance
Committee's VIP operations.\95\
---------------------------------------------------------------------------
\94\ Livingstone remained in the position of Director throughout
the tenures of Counsels Bernie Nussbaum, Lloyd Cutler and Abner Mikva.
He also outlasted his supervisors and associate counsels William
Kennedy, Beth Nolan, and Christopher Cerf.
\95\ Livingstone, 3/22/96 dep. p. 14. (See also, the Washington
Post, September 9, 1996, pp. A1, A12. The Washington Post reported that
a friend of Livingstone's stated that Livingstone's job consisted of
posting himself at an escalator in the convention hall and saying
``good evening'' to VIPs who walked by. ``Craig said his job was to
meet and greet.'')
---------------------------------------------------------------------------
David Craig Livingstone began his political career in 1984
working as an advance man on the Gary Hart for President and
the Mondale/Ferraro campaigns. Mr. Livingstone was responsible
for ``organizing large crowd events' according to his
resume.\96\ Mr. Livingstone testified that he then spent the
next few years ``work[ing] in a bar and restaurant, work[ing]
on small campaigns, Democratic initiatives.'' \97\ However, his
resume states that during this period he was an advance man for
the Reagan/Gorbachev Summit Meeting in Geneva, Switzerland
where he was responsible for arranging international press
appearances for Presidents Reagan and Gorbachev. He also claims
to have secured a 55 minute meeting between U.S. citizens and
the General Secretary.
---------------------------------------------------------------------------
\96\ White House document CGE 46232.
\97\ Livingstone deposition, March 22, 1996.
---------------------------------------------------------------------------
Mr. Livingstone also worked for Senator Timothy E. Wirth.
In his resume, he states that he coordinated Senator Wirth's
transition from the House of Representatives to the U.S.
Senate. Although it is absent from his resume, Mr. Livingstone
worked for the Hollywood Women's Political Committee ``doing
their Washington work.'' \98\
---------------------------------------------------------------------------
\98\ Id.
---------------------------------------------------------------------------
Craig Livingstone's first encounter with Al Gore was in
1988, when he served as his trip director traveling ``daily''
with Mr. Gore and claims to have produced Mr. Gore's 1988
Presidential announcement. Mr. Livingstone also failed to
mention in his deposition or on his resume that he worked on
the 1988 Dukakis for President campaign.\99\ Livingstone also
worked as the operations director for the Democratic National
Committee Convention staff in 1988 in Atlanta, GA where he
coordinated operations for DNC Chairman Paul Kirk. He returned
to working at bars and restaurants during the interim and
``coordinated screenings'' for the highly controversial movie
``The Last Temptation of Christ'' in 1988. He also worked at a
public relations company where he claims that he ``prepared
clients for legislative appearances.'' \100\
---------------------------------------------------------------------------
\99\ Livingstone SF-86 form completed 2/16/93 to begin his FBI
background investigation.
\100\ White House document CGE 46231.
---------------------------------------------------------------------------
Mr. Livingstone worked for Washington, DC Councilwoman
Charlene Drew Jarvis for approximately 1 year before he began
his first employment with the Clinton campaign doing advance
work.\101\ From October 1991 to November 1992, Mr. Livingstone,
according to his resume, was the ``Senior Consultant to
Counter-Event Operations'' for Clinton/Gore '92. Mr.
Livingstone claims to have ``successfully deployed several of
the infamous ``Pinocchio'' and ``Chicken George'' media
events.\102\ Mr. Livingstone also claims credit for ``Special
Operations and Advance'' for then-Governor Clinton's successful
primary and general election as well as assisting in the
``creation and execution of mission objectives of the Clinton
for President, Washington, D.C. local headquarters.'' \103\
---------------------------------------------------------------------------
\101\ Livingstone deposition, p. 12.
\102\ During President Bush's speeches figures dressed up as
Pinocchio and as a chicken began to appear in the crowd and heckle
President Bush.
\103\ White House document CGE 46230.
---------------------------------------------------------------------------
In between Bill Clinton winning the primary but before the
general election, Craig Livingstone went to ``Africa to work
training some soldiers, Democratic campaign techniques.'' \104\
After returning from the Angola training grounds, Livingstone
worked with the ``VIP financial staff '' on fundraising
projects for President-elect Clinton and Vice-President-elect
Gore. By November 1992, Livingstone was the lead and site lead
advance person for the Clinton/Gore '92 campaign.
---------------------------------------------------------------------------
\104\ Livingstone deposition, p. 13.
---------------------------------------------------------------------------
After the election, Livingstone was the director of
security for the Presidential Inaugural Committee (PIC). He
states that he had ``responsibility for security at inaugural
headquarters and all events.'' \105\ In his deposition,
Livingstone explained that his duties as director of security
at PIC were to ensure that events were handled with the safety
of the attendees in mind as well as producing the event in the
manner that the Clintons would want it done.\106\ On his
resume, he wrote that the ``Mission statement'' of his job, was
to ``[p]rotect the integrity of the Office of the President.''
\107\ He also stated that he was responsible for securing the
PIC computer network against fraud and theft.\108\ According to
theft reports by the Federal Protective Service, more than
$174,000 worth of the Inaugural Committee's computers, VCR's,
radios, cellular phones, pagers and other electronic gear
disappeared from the committee headquarters.
---------------------------------------------------------------------------
\105\ White House document CGE 46230.
\106\ Livingstone deposition, March 22, 1996, p. 18. (See also,
Varney deposition, July 23, 1996 dep., p. 14. Christine Varney, the
general counsel of PIC, described Livingstone's position as handling
the logistics of transportation to and from the Navy Yard, where PIC
was located, as well as handling passes or credentials for PIC
employees and volunteers.)
\107\ Id.
\108\ Id.
---------------------------------------------------------------------------
After the Inauguration, Livingstone sought to obtain a
position at the Clinton White House. Mr. Livingstone testified
that he was asked to assist with the advance for President
Clinton's first Cabinet meeting at Camp David.\109\ Mr.
Livingstone worked on advance for the Cabinet meeting from
January 25 through 30, 1993.\110\ While organizing advance for
the Cabinet meeting, Livingstone worked with Christine Varney,
President Clinton's new Cabinet Secretary. Ms. Varney testified
that she knew Livingstone prior to the Clinton campaign, ``he
was generally known as one of the guys around town who did
advance for Democratic party stuff.'' \111\ Ms. Varney could
not recall whether Livingstone mentioned the job in the
Security Office to her or whether she mentioned it to him.\112\
Ms. Varney did state that although she was unclear on whether
she told Livingstone about the position, she believes it
unlikely that she approached Livingstone about the position
because she would not have known about it at that time.\113\
---------------------------------------------------------------------------
\109\ Livingstone deposition, March 22, 1996, p. 21.
\110\ White House document CGE 048536.
\111\ Varney deposition, March 23, 1996, p. 15.
\112\ Varney deposition, March 23, 1996, p. 18.
\113\ Id., pp. 18-20. (See Livingstone deposition. Livingstone,
however, stated that it was Varney who told him about the position in
the Security office.)
---------------------------------------------------------------------------
According to Associate White House Counsel Cheryl Mills, at
the end of January or beginning of February, Deputy Counsel
Vince Foster told Mills that he was planning on speaking with
Livingstone about one of the lower-level administrative
positions in the Security Office.\114\ Mr. Foster also spoke
with Varney about the position for Livingstone. He described
the work to Varney as, ``an administrative paper-pushing kind
of job, [for] someone who knew most of the new Clinton
employees, to sit on them to make sure they got their paperwork
done.'' \115\ Based on Foster's description, Varney told Foster
that Craig Livingstone would be appropriate for a position with
that level of responsibility.\116\
---------------------------------------------------------------------------
\114\ Deposition of Cheryl Mills, August 2, 1996, p. 15.
\115\ Varney deposition, p. 19.
\116\ Id.
---------------------------------------------------------------------------
Mr. Foster and Cheryl Mills eventually interviewed
Livingstone for what Mills described as the ``most junior
position'' in the Security Office.\117\ She explained the
position to Livingstone as administrative, primarily collecting
and sending out forms. She also indicated to him that whoever
was hired to fill Jane Dannenhauer's position as Assistant to
the Counsel, would make the ultimate decision on whether to
hire Livingstone.\118\ According to Ms. Mills, Livingstone
indicated to both Foster and Mills that he viewed the job as a
temporary position, as he was interested in a position as
Director of the Military Office.\119\ Although many have
suggested a role for Vince Foster in hiring Craig Livingstone,
Mr. Livingstone failed to recall any contact whatsoever with
Mr. Foster when he testified under oath in his deposition.\120\
The Security Office position for which Livingstone interviewed
with Foster and Mills was relatively low-paying and not as
challenging a position as Livingstone wanted.\121\
---------------------------------------------------------------------------
\117\ Mills deposition, p. 16.
\118\ Id.
\119\ Id.
\120\ Livingstone, 3/22/95 dep., pp. 22-23.
\121\ Mills deposition, p. 16.
---------------------------------------------------------------------------
According to White House records, Livingstone began working
in the Security Office on February 8, 1993.\122\ On that date,
he wrote a memo to Cheryl Mills reviewing the duties and
personnel in the Security Office.\123\ Mr. Livingstone states
in the memo that he ``reviewed the White House Security Office
as requested.'' \124\ He stated that Jane Dannenhauer and Nancy
Gemmell would be staying on for a short period of time and
reporting to Livingstone. He also explained that he would be
meeting with the IRS and FBI for briefings on their respective
roles in the background process. Mr. Livingstone attached a
proposed memo to Jane Dannenhauer to go out under the name of
the Deputy Assistant to the President and Deputy Counsel
directing Dannenhauer to notify her staff that effective
February 8, 1993 Craig Livingstone would serve as the Director
of the White House Security Office with Dannenhauer serving as
his ``advisor'' until March 1, 1993, ``whereupon, it is
expected she will submit her resignation.'' \125\
---------------------------------------------------------------------------
\122\ White House documents CGE 053841, 046220.
\123\ White House document, CGE 48606.
\124\ White House document CGE 048606-608.
\125\ Id., p. 048608.
---------------------------------------------------------------------------
According to Cheryl Mills' testimony, Livingstone was to be
an assistant in the office and a more senior person was to be
hired to replace Jane Dannenhauer. When asked whether she
recalls learning that Livingstone had become the Director of
the office, she testified: ``I actually don't ever recall
learning that fact, but I am sure there became a point in time
later on in the year when it must just have been self-evident.
But I don't recall learning that fact.'' \126\ In contrast, the
February 8, 1993 memo, with her handwritten notes in the
margin, clearly and explicitly shows that Livingstone himself
informed her that he was the Director of the Security Office.
Associate Counsel William Kennedy, who eventually was assigned
the responsibility of oversight of the Security office, was not
hired until February 10, 1993, 2 days after the memo was
written.\127\
---------------------------------------------------------------------------
\126\ Mills deposition, p. 16.
\127\ White House document CGE 053841.
---------------------------------------------------------------------------
Livingstone testified in his first committee deposition
that Christine Varney introduced him to people in the Counsel's
Office, one of whom was Cheryl Mills.\128\ Mr. Livingstone
stated that he had a brief discussion with Mills about the
position in the Security Office, which she described as largely
administrative.\129\ Ms. Mills explained to him that she would
not be overseeing the office, however someone would soon be
appointed. Shortly thereafter, William Kennedy was appointed as
Assistant Counsel to the President and took control of
oversight of the Security Office.\130\
---------------------------------------------------------------------------
\128\ Security of FBI Files hearing, June 26, 1996, p. 215.
\129\ Id.
\130\ Id.
---------------------------------------------------------------------------
Former White House Counsel Bernard Nussbaum recalled yet
another version of the hiring of Craig Livingstone. He stated,
``at the time I arrived in the White House on January 20, 1993,
or shortly thereafter, Craig Livingstone was acting already in
the Office of Personnel Security. That's when Mr. Foster and I
arrived . . . . [h]e was in the White House, I believe, when I
got there.'' \131\ Former Assistant Counsel to the President
Kennedy testified that Livingstone was already working in the
Security Office.
---------------------------------------------------------------------------
\131\ Security of FBI Files hearing, June 26, 1996, p. 56.
I arrived the first week in February and went on the
payroll on February the 10th, I believe. When I
arrived, Craig was acting as Acting Director of the
Office of White House Personnel Security. I was
informed by Mr. Foster that was the position he was
under consideration for. I don't know who told Mr.
Foster that or on what basis.\132\
---------------------------------------------------------------------------
\132\ Id., pp. 58-59.
Mr. Livingstone himself stated that he was working in the
office when Kennedy arrived at the White House. Mr. Livingstone
was not on payroll at the time, and stated that he still
considered himself an ``advance person.'' \133\ Mr. Livingstone
did not go on the payroll for several weeks. According to
Kennedy's testimony, Livingstone had a probationary period
while waiting for his FBI background investigation to be
completed.\134\ His FBI background investigation was initiated
on February 18, 1993 and completed on March 13, 1993.\135\
---------------------------------------------------------------------------
\133\ Id., p. 170.
\134\ Id., p. 172.
\135\ Secret Service Documents (unnumbered) (in committee files).
---------------------------------------------------------------------------
In the course of Livingstone's background investigation FBI
Agent Dennis Sculimbrene conducted interviews on March 1-3,
1993, of Livingstone's supervisors at the White House,
including Bernard Nussbaum and Bill Kennedy. Agent Sculimbrene
took contemporaneous notes of the meeting where Nussbaum
mentioned that although he had only known Livingstone for the
period of time since he had been employed in the new Clinton
administration, he understood that Craig Livingstone ``had come
highly recommended to him by HILLARY CLINTON.'' \136\ Mr.
Nussbaum added that Mrs. Clinton ``has known his mother for a
longer period of time.'' Mr. Kennedy told Agent Sculimbrene
that ``he did not hire'' Craig Livingstone and was aware that
Livingstone ``may not stay in his current position.'' \137\
---------------------------------------------------------------------------
\136\ Nussbaum has denied that he ever made the statement. The
interviewing agent, Dennis Sculimbrene, does not remember the interview
of Mr. Nussbaum, however he stated that his usual practice was to
transcribe his notes immediately following any interview.
\137\ March 1-3, 1993 interviews with White House supervisors in
the course of the FBI background check on Craig Livingstone.
---------------------------------------------------------------------------
Another FBI agent who was assigned to the White House, Gary
Aldrich, recalled a conversation with Assistant Counsel and
Rose Law Firm partner Bill Kennedy. Mr. Kennedy asked the agent
what type of person should be in the position of Director of
the Security Office. Agent Aldrich answered that it should be
``somebody squeaky clean, meticulous, careful, discreet,
mature, someone with a depth of understanding of security
issues.'' \138\ Mr. Kennedy later told Agent Aldrich: ``it
doesn't matter anyway; it's a done deal. Hillary wants him
[Livingstone] for that slot.'' \139\ Both Agent Sculimbrene and
Aldrich testified that Kennedy told them that he had to hire
Craig Livingstone.
---------------------------------------------------------------------------
\138\ Aldrich deposition, July 18, 1996, p. 31.
\139\ Aldrich deposition, July 18, 1996, p. 32.
---------------------------------------------------------------------------
Mrs. Clinton publicly denied hiring or even knowing who
Craig Livingstone was until this year. In response to questions
by reporters during her trip in Helsinki on July 10, 1996, Mrs.
Clinton said, ``I did not know him. I did not have anything to
do with his being hired, and I do not remember even meeting him
until sometime in the last year.'' In contrast, an intern
working in the White House Office of Personnel Security
informed this committee of an encounter with Mrs. Clinton that
puts her denials of knowing Craig Livingstone in question.
White House intern, Gina Gibson, said that she was being
shown around the White House when she saw Mrs. Clinton
approaching from down the hall. Ms. Gibson said that as Mrs.
Clinton passed she said ``Hello Craig'' and kept on
walking.\140\ Ms. Gibson interned at the White House from May
1994 through July 1994, well before the time period Mrs.
Clinton said she first knew who Craig Livingstone was.
---------------------------------------------------------------------------
\140\ Telephonic staff interview of Gina Gibson.
---------------------------------------------------------------------------
Craig Livingstone participated in numerous other activities
within the White House where contact with President Clinton and
Mrs. Clinton would have been likely. Craig Livingstone was sent
to Little Rock, AR, January 1-6, 1994, to handle arrangements
for President Clinton's mother's funeral.\141\ Included in the
numerous other advance trips that Livingstone participated in
was the October 22, 1993, Boston trip on which he was on
advance for President Clinton,\142\ the April 21-25, 1994
advance trip to Boston for President Clinton, or when he was
the site lead for President Clinton's May-June 1994 European
trip.\143\ These are just a few of the advance trips which
Livingstone likely would have had contact with the President or
Mrs. Clinton.
---------------------------------------------------------------------------
\141\ White House document, CGE 54412.
\142\ White House document, CGE 54410.
\143\ White House document, CGE 54387. Mr. Livingstone authored a
memo to Tricia Northcutt in preparation for this trip requesting
numerous sets of Presidential cufflinks, Presidential hats,
Presidential pins, Presidential key chains, a ladies stick pin,
Presidential pens and Presidential tie bars before he departed on May
23, 1994 for England.
---------------------------------------------------------------------------
In May 1994, Livingstone wrote a memo to David Watkins
requesting that he be provided with a cellular telephone since
his ``duties now require that [he] be on call during the
weekends to assist the President in whatever manner
necessary.'' If President Clinton did not know Livingstone
personally, why did Livingstone need to be on call for him on
weekends? What did Livingstone believe his duties entailed in
order to ``assist'' the President?
Three days before the White House received Livingstone's
background investigation, Kennedy sent a March 10, 1993 memo to
David Watkins, Assistant to the President for Management and
Administration, requesting that the effective employment date
for Livingstone be established as February 8, 1993.\144\ When
Craig Livingstone's March 1993 FBI background information was
finally given to the Secret Service in the fall of 1993, the
Service raised concerns with Kennedy about derogatory
information in Livingstone's background.\145\
---------------------------------------------------------------------------
\144\ White House document CGE 046220.
\145\ Cole, 7/10/96 dep., pp 22-23.
---------------------------------------------------------------------------
Secret Service Agent Arnie Cole recalled that he was not
aware that Livingstone would be taking over the position until
the end of February 1993.\146\ The Secret Service had stressed
to the Clinton transition team how important the position of
Director of the Security Office was in getting all the new
people in and making sure everyone had a pass. Mr. Livingstone
himself did not have his permanent White House pass until
November 23, 1993. The FBI forwarded all of the results of
Livingstone's background investigation to Nussbaum on March 16,
1993 and the file was not forwarded to the Secret Service for
adjudication until September 20, 1993. Agent Cole testified
that he raised questions about ``derogatory information'' in
Livingstone's background with Kennedy.\147\ Agent Cole further
testified that he raised concerns about Livingstone with his
superior at the Secret Service and ``asked Mr. Kennedy if he
concurred with my concerns one way or the other, and he did
not, and ultimately Mr. Livingstone received his White House
pass.'' \148\ Another 2 months passed before Livingstone's
permanent pass was finally approved on November 23, 1993.
---------------------------------------------------------------------------
\146\ Id., p. 13. Secret Service Agent Arnie Cole is the supervisor
of the White House Access Control Branch and as such, primary point of
contact for Livingstone in his capacity as Director of the White House
Office of Personnel Security. Mr. Livingstone did not receive his
temporary pass until February 26, 1993.
\147\ Cole deposition, pp. 21-22.
\148\ Security of FBI Files hearing, July 17, 1996, pp. 99-104.
---------------------------------------------------------------------------
Questions still remain as to how Livingstone was actually
hired as the Director of the White House Security Office.
Cheryl Mills states that he was to be an assistant in the
office, yet she receives a February 8, 1993 memo where he
clearly assumes the role of the Director. Messrs. Kennedy and
Nussbaum both state that Livingstone was already in the office
when they arrived, but neither of them questioned his
background or qualifications for the position. Mr. Kennedy
himself stated in a memo to Counsel to the President Bernard
Nussbaum that Livingstone probably would not be in the position
for long, as he was hoping to get the position as Director of
the Military Office.\149\
---------------------------------------------------------------------------
\149\ White House document CGE 048543.
---------------------------------------------------------------------------
Finally, neither Kennedy nor Nussbaum mentioned that Mrs.
Clinton had either recommended Livingstone or directed that he
be placed in the ``slot'' of Director of the Security Office.
In fact, both denied that Mrs. Clinton had anything to do with
the hiring of Craig Livingstone. It remains a mystery how he
came to the attention of former Rose Law Firm partner, then
Deputy White House Counsel Vince Foster. What we do know is
that both the FBI and the Secret Service voiced their concerns
about hiring Craig Livingstone to head the White House Security
Office. Despite these concerns and the fact that Kennedy knew
that he did not even want the position, Livingstone was given
absolute control.
2. Craig Livingstone's quest for the Military Office
It was no secret that Livingstone wanted the position of
Director of the Military Office. In a February 22, 1993 memo
from Bill Kennedy to Bernard Nussbaum and Vince Foster, Kennedy
addressed hiring Livingstone as the Director of the Office of
Personnel Security. Mr. Kennedy wrote:
[Craig Livingstone] is willing to accept the job at a
salary of $45,000, although reserving the right to look
for something better, such as becoming the Director of
White House Military Affairs for which he is apparently
being considered. That position apparently would not
open until sometime in June, 1993, if at all. There is
probably a good chance this office will lose Mr.
Livingstone.\150\
---------------------------------------------------------------------------
\150\ White House document CGE 048543.
After Foster interviewed him for the ``junior position'' in the
Security Office, Mills told the committee that she asked Foster
why Livingstone would not be appropriate as the Director of the
Military Office. According to Mills, Foster explained why it
would be unreasonable for Livingstone to be in that position.
He told her that it was usually a person with a long term
history in the military and a relatively senior retired
officer.\151\
---------------------------------------------------------------------------
\151\ Mills deposition, August 2, 1996, p. 18.
---------------------------------------------------------------------------
Mr. Livingstone approached numerous people about his desire
to become Director of the Military Office. He spoke to Bruce
Lindsey,\152\ George Stephanopoulos,\153\ Bill Kennedy,\154\
Gary Aldrich, Chuck Easley,\155\ Harry Thomason,\156\ George
Saunders,\157\ Arnie Cole,\158\ Dennis Sculimbrene,\159\ Vince
Foster \160\ and Cheryl Mills \161\ among others.
---------------------------------------------------------------------------
\152\ Deposition of Bruce Lindsey, July 29, 1996, pp. 20-21.
(Lindsey was asked whether Livingstone ever approached him about the
job in the Military Office. Lindsey stated, ``Yes. We did an event at
the Library of Congress during the Inaugural and he, I think, was doing
an advance on the event, and I was standing outside and he told me that
he wanted to be head of the White House Military Office. . . . I asked
whether or not it had to be a service person. He indicated it did not.
I don't know if I said anything else.'')
\153\ White House document CGE 046222.
\154\ White House document CGE 048543.
\155\ Deposition of Chuck Easley, July 26, 1996, p. 42. (Easley
stated that the first time he met him, Livingstone told him that he
wanted to be the Director of the Military Office. That occurred
sometime in early February 1994.)
\156\ Thomason deposition, p. 71.
\157\ Saunders, 7/13/96, p. 30. (Livingstone told Saunders that the
job he really would like to have is head of the Military Office.)
\158\ Cole, 7/10/96, pp. 10-11.
\159\ Sculimbrene, 7/15/96, p. 53. (``[H]e told me, and as I
understood from others, he was looking for another job. He told me he
wanted to run the Military Office.'')
\160\ See, Mills, supra.
\161\ Supra note.
---------------------------------------------------------------------------
Mr. Thomason testified that ``for some reason, all the
employees of the White House thought if they needed to unload
things or tell things, that they could see me.'' \162\ Although
Thomason testified that he remembered Craig Livingstone met
with him, he was unable to recall the context of his notes of
that meeting where he wrote: ``Control of military office and
SS [Secret Service] could very well derail future efforts.''
\163\ FBI Agent Gary Aldrich testified that he too had a
conversation with Livingstone about the Military Office
position:
---------------------------------------------------------------------------
\162\ Thomason, 5/17/96, pp. 71-72.
\163\ Bobbie Faye Ferguson document, BFF 1067.
He told me that his goal in the White House was to
become head of the [M]ilitary Office and that he felt
that the Chief of Staff, Mack McLarty, was not
supporting him enough in his quest to do that. And he
often spoke of arguments he said he had with the Chief
of Staff and others relative to his seeking this
promotion.\164\
---------------------------------------------------------------------------
\164\ Aldrich deposition, p. 34.
On May 27, 1994, Livingstone wrote a note to George
Stephanopoulos thanking him for offering to be of assistance in
his efforts ``to further serve the President as Director of the
White House Military Office.'' \165\ Mr. Livingstone listed
four points which he believed should be considered in his quest
for the office. The last of the four points, that ``the job, by
nature, should have someone with sound political skills--
particularly as we approach N.H. [New Hampshire],'' is most
revealing of Livingstone's lack of understanding that all jobs
in the White House are not political.\166\
---------------------------------------------------------------------------
\165\ White House document CGE 46222.
\166\ The thank-you note produced to this committee had a cover
page attached stating ``What should we do with this request?'' Below
this question is written the word ``Nothing'' and it is circled. White
House document CGE 46221.
---------------------------------------------------------------------------
The Military Office is responsible for all of the military
operations as they relate to the White House. White House
communications, military aides, and the President's doctor all
come under the supervision of the Military Office. The use of
Air Force One, the helicopter as well as any other
transportations of the President are under the control of this
office. In essence, every military asset in the White House is
run by the White House Military Office, an office for which a
man of Craig Livingstone's background was not suited.
3. Livingstone's duties as Director of the White House Office of
Personnel Security
After Livingstone became the Director of the Security
Office, he requested that the name be changed to the Office of
Personnel Security (OPS).\167\ Although the Clinton
administration changed the name of the office, it was supposed
to perform essentially the same duties as it had in prior
administrations. In a 1994 memo to Jodie Torkelson, Assistant
to the President for Management and Administration, Livingstone
described his duties as Director of OPS:
---------------------------------------------------------------------------
\167\ White House document CGE 048607.
process security papers for Presidential appointees
and White House staff; handle daily contact with the
FBI;
maintain frequent contact with attorneys on an
individual case basis;
work with the Secret Service in processing applicants
for access and White House passes; sit on numerous
committees with the Secret Service;
act as a liaison between Secret Service and staff;
maintain clearance processes for White House Intern/
Volunteer programs; initiate memoranda to the
attorneys;
initiate and maintain Security Interview process for
both staff applicants and intern/volunteers;
act as principal liaison with all government-wide
department/agency security officers in assisting in
their clearance processes, and;
process compartmentalized clearances for staff.\168\
---------------------------------------------------------------------------
\168\ White House document CGE 048827-829.
But in contrast to Jane Dannenhauer, his predecessor,
Livingstone was involved in more than simply running the
Security Office. Although Livingstone described one of his
primary duties in 1993 as reviewing FBI background files,\169\
he continued to do advance work for President Clinton even
after taking over the position as Director of the Security
Office.
---------------------------------------------------------------------------
\169\ Livingstone, June 14, 1996, p. 4.
---------------------------------------------------------------------------
Mr. Livingstone would often participate in Presidential and
First Lady advance trips, traveling ahead of the President or
First Lady to set up and handle logistics.\170\ In fact,
Livingstone stated, ``we [White House appointees] are asked to
do advance from time to time, and it's something that I have
done. I would consider that part of my job.'' \171\
---------------------------------------------------------------------------
\170\ Livingstone deposition, March 22, 1996, pp. 24-25.
\171\ Id., p. 26.
---------------------------------------------------------------------------
Mr. Livingstone also told FBI Agent Gary Aldrich that he
was the Clinton administration's liaison to the FBI and spoke
often with the Director of the FBI, Louis Freeh.\172\ The
committee received a copy of a letter from FBI Director Louis
Freeh to Livingstone that appears to confirm this fact. In the
letter, Director Freeh said that ``the President and the
American people are indeed fortunate to have your dedication
and service.'' After thanking Livingstone and ``Stephanie'' for
their help with Director Freeh's sons, he said that ``we look
forward to seeing both of you soon. Don't forget to visit us at
the FBI.'' It was signed ``Very truly yours, Louie.'' \173\
---------------------------------------------------------------------------
\172\ Aldrich deposition, July 18, 1996, p. 34.
\173\ White House document CGE 054403.
---------------------------------------------------------------------------
Mr. Livingstone altered the historical duties of the office
in other ways as well. In a memo to Counsel to the President
Abner Mikva requesting a raise, Livingstone wrote, ``I strongly
believe that my level of work reviewing IRS records,
adjudicating FBI backgrounds, conducting intake security
interviews and developing corrective plans of action for
individuals with problems that can be made right.'' \174\ The
memo did not describe what kind of plans of action or problems
would be involved in this newly developed duty. In addition, as
individuals left the White House for other positions, they
would be ``debriefed'' by Livingstone as part of his
duties.\175\
---------------------------------------------------------------------------
\174\ White House document CGE 048059. (Emphasis added) (May 30,
1995 memo from Craig Livingstone to Abner J. Mikva, re: Follow-up to
pay adjustment request.)
\175\ Livingstone, March 22, 1996 dep. p. 31.
---------------------------------------------------------------------------
In a September 22, 1993 memo Livingstone requested a
permanent radio and cell phone stating, ``this request is
necessary due to the nature of my duties as Director of White
House Security.'' \176\ He did not enumerate what those duties
were which required him to have a radio and cell phone. As
discussed above, the next year, in May 1994, he again requested
a White House issued cell phone to be ``on call'' during the
weekend ``to assist the President in whatever manner
necessary.'' \177\ As in the previous memorandum, he did not
describe what his duties were or what assistance the President
needed from him on weekends. Livingstone was also attempting to
expand his role in White House security and was planning a
``security committee.'' \178\
---------------------------------------------------------------------------
\176\ White House document CGE 054067.
\177\ White House document CGE 048523.
\178\ White House document CGE 054002 (Letter from Paul Connelly,
Chief of Security and Safety Division of the White House Communications
Agency to Craig Livingstone dated May 8, 1994. ``I was very happy to
hear of your mandate and desire to widen your role in White House
security and am interested in participating on the White House security
committee you mentioned.) (Emphasis added.).
---------------------------------------------------------------------------
Former White House Counsel C. Boyden Gray made clear that
substantive judgments on the background investigations were
reserved exclusively to the White House Counsel and Deputy
Counsel.\179\ The responsibility for the adjudication was kept
at the highest levels of the Counsel's Office not only to
ensure immediate access to the President with any problems, but
also to ensure the confidentiality of the files.
---------------------------------------------------------------------------
\179\ Security of FBI Files hearing, June 19, 1996, p. 23.
---------------------------------------------------------------------------
In the Clinton administration, the responsibility was given
to an associate counsel, William Kennedy, who in turn passed
along the responsibility to Craig Livingstone, who in turn
passed it along to his staff which consisted of interns and
young individuals in their first job.\180\ The confidentiality
of all of the FBI background files was jeopardized once the
Counsel to the President, Bernard Nussbaum, denounced any
responsibility for this unpleasant yet necessary work. The FBI
background investigations are conducted for the White House in
order to protect the country in connection with potential
security breaches, as well as to protect the President
politically and physically. Not only did Livingstone shift his
responsibility to review background investigations to lower
level staff but he also was looking for creative ways for
Clinton appointees to get around problems in their backgrounds,
ignoring the purpose of the investigation.
---------------------------------------------------------------------------
\180\ Livingstone deposition, June 14, 1996, p. 49. (Livingstone
stated: ``I think in the first year I looked at a lot of the reports,
but as we all got trained in our functions and our mission became
clear, we--I trained my staff to look for certain types of information,
and if there wasn't any of that type information, that I felt confident
that they could make a decision if the information was derogatory or
not.'' He then noted that he did not even train the staff, Lisa Wetzl,
a staff assistant did, ``I believe it was 1994 when Ms. Wetzl trained
our staff.'' Ms. Wetzl was only 22 years old when she began in the
office and in a thank you note to Livingstone, she said it was the
first job she ever held.)
---------------------------------------------------------------------------
Mr. Livingstone's explanations of his duties in the White
House raise questions as to whether he was authorized to
undertake these tasks, and if so, by whom. It is clear on more
than one occasion that his superiors were aware of what he was
doing, as he outlined these additional duties in his memos to
them. Mr. Livingstone's predecessor worked long hours in her
position as Director of the Security Office. She did not have
time to do political advance work or to expand the mandate of
her office.
What is important to note is that there was never a backlog
of passes, never any security concerns raised by the Secret
Service, and certainly never any unauthorized requests sent to
the FBI during the tenures Livingstone's predecessors. There
seemed to be little or no supervision of Livingstone and the
activities he was pursuing. The Clinton administration put
someone in this sensitive office with no experience and who
clearly was unsuitable as recognized by both the FBI and the
Secret Service. Not only did the White House ignore the
importance of the suitability issue but after placing an
unsuitable person in this position, the responsible parties,
the White House Counsels, abdicated supervisory responsibility.
It is not surprising then that problems would arise.
4. Livingstone's salary requests
Mr. Livingstone was hired as the Director of the Personnel
Security Office at a salary of $45,000 in February 1993. In a
May 10, 1993 memo to Associate Counsel to the President Bill
Kennedy, Livingstone requested a salary increase of
$5,000.\181\ On October 20, 1993, Livingstone did receive an
increase to $51,000 which was approved by Bernard
Nussbaum.\182\
---------------------------------------------------------------------------
\181\ White House document CGE 047884. (Memo from Craig Livingstone
to William Kennedy, dated May 10, 1993. In the same memo, Livingstone
requested that Nancy Gemmell remain on paid status through August 1,
1993. He also asked to bring on a receptionist at a reduced salary of
$17,000. ``On August 1, 1993 my salary would increase TO $50,000 from
$45,000. Based on the reduction of salary for the receptionist.'')
\182\ White House document CGE 046144.
---------------------------------------------------------------------------
Between May and August 1994, three Counsel's Office
attorneys wrote letters on behalf of Livingstone requesting an
increase in his salary. The Assistant to the President for
Management and Administration, David Watkins, wrote a memo to
Associate Counsel Beth Nolan in May 1994 noting that it had
come to his attention that she had requested a salary increase
for Livingstone.\183\ Mr. Watkins explained that a salary
freeze was in effect for all salary adjustment actions.\184\
Nevertheless, Nolan's colleague, Associate Counsel Chris Cerf,
wrote a memo to Deputy Chief of Staff Phil Lader on July 1,
1994 requesting a raise for Craig Livingstone.\185\ Mr. Cerf
wrote, ``[i]t would be an overwhelming setback if Craig's
frustration over his salary contributed to a decision to seek
employment elsewhere. I consider this to be a significant risk
that we should be doing everything in our power to minimize.''
\186\
---------------------------------------------------------------------------
\183\ White House document CGE 048509. (Memo from David Watkins to
Beth Nolan dated May 25, 1994, re: salary adjustment. The memo was
copied to Patsy Thomasson and Kelli McClure and read, ``EYES ONLY'')
\184\ Id.
\185\ White House document CGE 048622. (Memo from Christopher D.
Cerf to Phil Lader, Deputy Chief of Staff, re: raise for Craig
Livingstone. The memo was copied to Beth Nolan.)
\186\ Id.
---------------------------------------------------------------------------
In a third attempt to get Livingstone a raise, both Beth
Nolan and Deputy Counsel to the President Joel Klein joined in
a memo to Deputy Chief of Staff Phil Lader.\187\ In the memo
they acknowledged that there was a general freeze on salaries
but argued that an exception should be made for Livingstone,
asking that he be given an immediate raise to $60,000.\188\
They cited his extraordinary effort to clear up a backlog of
White House passes, one of Livingstone's duties as Director of
Personnel Security.
---------------------------------------------------------------------------
\187\ White House document CGE 048627. (Memo from Joel Klein,
Deputy Counsel to the President and Beth Nolan, Associate Counsel to
the President dated August 19, 1994, re: raise for Craig Livingstone.
The memorandum was marked ``Personal and Confidential.'' The memo was
forwarded to Livingstone with a handwritten note from Beth Nolan, ``our
3rd effort, it has gone to Phil. Joel will also talk to him.'')
\188\ Nolan and Klein stated that Livingstone had worked 18 months
at ``an inadequate salary'' of $51,000.
---------------------------------------------------------------------------
Mr. Livingstone did receive a salary increase on January 8,
1995 to $57,500, which was approved by White House Counsel
Abner Mikva.\189\ Nine months later Livingstone received yet
another salary increase to $63,750.\190\ Before receiving that
final increase Livingstone had written two memos to Counsel to
the President Abner Mikva. The first memorandum, dated May 30,
1995, states, ``I have done my best to be a good soldier,'' and
requests a salary increase to $65,000.\191\ The second
memorandum, dated August 28, 1995, takes on a much stronger and
almost threatening tone.
---------------------------------------------------------------------------
\189\ White House document CGE 046217.
\190\ White House document CGE 046215. (The document is a ``Change
in Employee Status'' form, change in salary requested by Abner Mikva,
dated September 28, 1995.)
\191\ White House document CGE 048059. (Livingstone states that at
a salary of $57,500 he was living paycheck to paycheck and complains
that his predecessor, who had been in the position since the Nixon
administration, made over $60,000.)
It would be wrong not to approve my request. Not just
because I was promised but because I have demonstrated
that I deserve it. I apologize for my tone but this is
my last try to remain part of the team.\192\
---------------------------------------------------------------------------
\192\ White House document CGE 048058. (Livingstone also notes that
his ``situation'' had gone on for over 2\1/2\ years, pointing out that
he had ``seen [the] office through a few storms.'')
In this second request, his salary demand increased to
$70,000.\193\
---------------------------------------------------------------------------
\193\ Attached to the authorization form for the salary increase
was a note from Kelli McClure to Deputy Counsel to the President James
Castellito, ``[t]he increase was approved by Judge Mikva. It is my
understanding that it was based on a promise made when Bernie Nussbaum
was here.'' White House document CGE 046216.
---------------------------------------------------------------------------
Mr. Livingstone's final request for a raise came on May 14,
1996, just 5 days after the committee held the White House in
contempt for the failure to turn over subpoenaed documents.
Among the documents that had been withheld was the White House
request for Billy Dale's FBI background file. The Assistant to
the President for Management and Administration, Jodie
Torkelson, wrote a memo requesting information on Livingstone's
salary history and any notes or paperwork on what he may have
been promised. Ms. Torkelson states in the memo,
``Livingstone's at it again. He's submitted paperwork for
signature giving himself a raise and saying that he was
promised the money by Abner [Mikva]. . . . I'd like to kill
this before I leave.'' \194\
---------------------------------------------------------------------------
\194\ White House document CGE 053840. (The increase in salary
requested was to $70,000.)
---------------------------------------------------------------------------
Craig Livingstone claimed that two White House Counsels,
Bernard Nussbaum and Abner Mikva, promised him that he would
get a raise to $70,000. He wrote memos directly to Counsel to
the President Mikva stating that he deserves a raise because he
had been a ``good soldier'' and ``weathered the office through
a few storms.'' How was Livingstone able to secure a 40 percent
salary increase in only 3 years? His salary rose rapidly from
$45,000 to $63,750. Although Livingstone complained that his
predecessor made over $60,000, he did not acknowledge that she
had over 20 years of experience as Director of the Security
Office. Mr. Livingstone had no background, education or
experience in the area, yet he was given significant salary
increases. His office was responsible for the backlog in passes
yet he claimed credit and demanded rewards for clearing up that
same backlog.
His persistent demands for salary increases and ability to
rally the Counsel's Office behind him raise even more questions
about who Craig Livingstone really is. Although most people in
the White House would now deny knowing him or at best admit
that they may have seen him around, Livingstone was able to
garner support for his cause when necessary.
5. Livingstone brings on new staff
The White House Security Office began using interns for the
first time in its history after Livingstone came on as
Director. Mr. Livingstone's Executive Assistant, Lisa Wetzl,
began as an intern in OPS in June 1993 after graduating from
college in May of the same year.\195\ Other assistants in the
office started as interns before moving up to staff positions.
Ed Hughes began as an intern in February 1994 after graduating
from college in June 1993.\196\ Jonathan Denbo, an assistant in
the office, was an intern in the office in the summer of 1994
and was hired in September after he graduated from college in
May 1995.\197\ The staff in the office was generally very young
and inexperienced. Nevertheless, all of the staff were granted
top secret clearance by the White House and compartmentalized
clearances from the CIA.
---------------------------------------------------------------------------
\195\ Wetzl deposition, June 17, 1996, p. 7. Ms. Wetzl began as an
OPS intern in June 1993, she was hired as a staff assistant in August
1993 and promoted to Executive Assistant in the fall of 1994. Ms. Wetzl
left the office in September 1995 to work as a confidential assistant
to Secretary of the Army, the Honorable Togo D. West, Jr.
\196\ Deposition of Edward Hughes, August 13, 1996, p. 6. (Hughes
became Livingstone's Executive Assistant in September 1995.)
\197\ Deposition of Jonathan Denbo, September 4, 1996, p. 3.
---------------------------------------------------------------------------
During 1993 and early 1994 the Office of Personnel Security
had an extensive backlog in paperwork. White House appointees
were not completing their paperwork and those that were
completed were not being sent to the FBI. By April 1993,
Livingstone was attempting to get his friend and political
ally, Anthony Marceca, detailed to the office to assist with
the backlog.
III. Detail of Anthony Marceca to the White House
A. Introduction
Anthony Marceca is one of the central figures in the
investigation of the FBI files matter. The White House claims
that he was the individual responsible for ordering hundreds of
files on former Reagan and Bush administration officials. First
described as a ``low-level clerk,'' the White House refused to
release Marceca's name to the committee for several days.
However, the committee soon learned through press accounts that
the so-called low-level clerk was a White House detailee
employed as a civilian investigator in the Army Criminal
Investigative Division (CID). President Clinton's deputy
campaign manager, Ann Lewis, claimed Marceca was a ``non-
political staffer.'' \198\ Anthony Marceca is a longtime
political colleague of Craig Livingstone. The two worked on
advance for numerous campaigns since the Hart campaign in 1984.
---------------------------------------------------------------------------
\198\ Ann Lewis, This was a simple mistake, USA Today, June 10,
1996, p. A12.
---------------------------------------------------------------------------
Mr. Marceca was detailed to the White House Office of
Personnel Security in August 1993 at the request of Associate
White House Counsel William H. Kennedy. Mr. Kennedy wrote two
letters directly to Secretary of Defense Les Aspin regarding
Marceca's detail.\199\ Kennedy, in one letter, stated that he
had ``learned of Agent Marceca's unique investigative abilities
and background and would greatly appreciate his full-time
assistance here.'' \200\
---------------------------------------------------------------------------
\199\ White House documents CGE 043814.
\200\ White House documents CGE 043816, letter from Kennedy to
Aspin, dated April 13, 1993, re: request for detailee.
---------------------------------------------------------------------------
Once ensconced in the office, Marceca attempted to use the
position as a springboard to a Presidential appointment. He was
interviewing for positions as a U.S. Marshal as well as
Inspector General positions at several different agencies.\201\
His plans came to a halt when the White House received his FBI
background file and informed him that there were problems in
his background which would prevent his detail from being
renewed and prevent him from receiving a Presidential
appointment.\202\
---------------------------------------------------------------------------
\201\ Marceca document (unnumbered) calendar of Anthony Marceca
dated December 27, 1993; January 7, 1994; January 14, 1994; February 2,
1994; February 3, 1994; February 7, 1994; February 8, 1994; February
25, 1994; and, March 2, 1994.
\202\ Kennedy deposition, June 18, 1996, p. 41; Livingstone
deposition, June 14, 1996, p. 60.
---------------------------------------------------------------------------
Mr. Marceca continued working in the Office of Personnel
Security until his original 6-month detail ended in February
1994. Although he received a hard pass and had full access to
the White House, his background investigation was not completed
until December 1993 and he was never cleared by the Secret
Service for a permanent pass. Along the way, his daughter also
joined the White House, apparently assisting in the Office of
Presidential Personnel.\203\ His son, Nathan, obtained a White
House job as a ``gift analyst'' in the winter of 1995.\204\
---------------------------------------------------------------------------
\203\ Marceca documents (unnumbered). Calendar of Anthony Marceca
dated January 20, 1994: ``Andrea's first day in Presidential
Personnel.'' It is not clear what his daughter was doing for the
office. There was an FBI name check run on her; however, she did not
have a White House pass.
\204\ Committee interview of Jonathan Denbo, September 4, 1996, p.
17. Mr. Denbo explained that he met Nathan Marceca when he came in to
OPS to fill out his new employee paperwork. Mr. Livingstone told Denbo
that Nathan was Tony Marceca's son.
---------------------------------------------------------------------------
After leaving the White House, Marceca remained in contact
with both Livingstone and the White House. He volunteered to
answer phone calls from the ``comments line'' following the
President's addresses to the Nation. Mr. Marceca retained a
White House volunteer pass until May 1995 and remained on a
volunteer access list until June 21, 1996, several weeks after
the discovery of the FBI files and Marceca's role became
known.\205\ According to phones message he left for
Livingstone, Marceca also appears to have worked on several
Presidential and Cabinet level advance trips between 1994 and
1996.\206\
---------------------------------------------------------------------------
\205\ Easley deposition, p. 57. Mr. Easley, who replaced Craig
Livingstone, stated, ``I learned that Mr. Marceca had a temporary
volunteer pass that was deactivated May 1995, and since then he has
been on the volunteer access list.'' Mr. Easley removed Marceca's name
from the access list on June 21, 1996, after the Secret Service
notified him of the name.
\206\ White House documents CGE 054248-54275. (The committee did
not receive any notice of the contact between the White House and
Marceca until a document production on the evening of September 5,
1996. The White House documents had been subpoenaed by the committee
and were over 2 weeks late in being produced.)
---------------------------------------------------------------------------
Anthony Marceca is far from the low-level clerk the White
House has claimed. He and Craig Livingstone worked together as
a political ``team'' since 1984 and continued their partnership
up to the present. Given the backgrounds of both Livingstone
and Marceca, it is astonishing that the Clinton administration
would put these two individuals in the sensitive office of
Personnel Security with access to the FBI file of any person
who has ever had a background investigation.
B. Marceca Parlays His Political Background with Craig Livingstone into
a White House Position
Anthony Marceca testified that he met Craig Livingstone
while they were both doing advance work for the Gary Hart
campaign in 1984.\207\ The two had become friends and
discovered that they worked well together.\208\ Messrs.
Livingstone and Marceca formed an ``advance team'' where
Livingstone would handle the public relations end of the
advance work and Marceca would handle the logistics end.\209\
Dennis Casey, a political consultant from Pennsylvania, who
worked for the Hart campaign in 1984, remembered Livingstone
and Marceca.\210\ Casey testified that, during a campaign
meeting, Livingstone was present and reported on ``peccadilloes
and vulnerabilities of labor leaders and prominent public
officials in hopes of neutralizing them or getting their
support switched from Mondale to Hart.'' \211\ Mr. Casey
testified that he informed Livingstone that he felt the
gathering of such information could hurt the campaign and
directed him to stop that type of work.\212\ Mr. Livingstone
disagreed with Casey and angrily left the room.\213\
---------------------------------------------------------------------------
\207\ Marceca deposition, p. 24.
\208\ Id.
\209\ Id.
\210\ See, committee deposition of Dennis Casey, June 20, 1996.
\211\ Id., p. 6.
\212\ Id.
\213\ Id.
---------------------------------------------------------------------------
Mr. Casey recalled that he met Marceca at that time as
well. Mr. Marceca spoke with Casey about the information
Livingstone gathered and told Casey that it was time to ``play
hardball with the dirt Mr. Livingstone had gathered.'' \214\
After an incident in which Marceca took $200 from the campaign
petty cash, Casey called the Washington campaign office of Gary
Hart and notified the office that Marceca should not be allowed
back.\215\
---------------------------------------------------------------------------
\214\ Id.
\215\ Id., pp. 7-8. Mr. Casey explained that Marceca had entered
his office and taken the $200. When Casey approached him the next day,
Marceca explained that he needed the cash to get handbills printed and
distributed. Mr. Marceca also explained that he needed the money to
``pay community children or urchins to distribute the fliers door-to-
door.'' After Casey called the Washington office to inform them of
Marceca's actions, Marceca contacted Casey and said, ``you guys got me
good, right between the eyes.''
---------------------------------------------------------------------------
The team of Livingstone and Marceca worked on several other
campaigns. After the Hart campaign in 1984, they both moved on
to the Mondale campaign. Mr. Marceca stated that the management
of the Mondale campaign knew both him and Livingstone and kept
them together as a team.\216\ In 1986 the two were asked to
work advance for the Hart for President announcement in
Colorado.\217\ Both Marceca and Livingstone accepted the
invitation and worked on advance with the campaign until Hart
dropped out of the race.\218\ In 1987, Livingstone asked
Marceca to work with him on Al Gore's announcement.\219\ Mr.
Marceca agreed and worked several advance trips with
Livingstone for the Gore Campaign.\220\
---------------------------------------------------------------------------
\216\ Marceca deposition, June 18, 1996, pp. 25-26.
\217\ Id., p. 27.
\218\ Id., p. 29.
\219\ Id., p. 30.
\220\ Id.
---------------------------------------------------------------------------
Mr. Livingstone contacted Marceca on election night in
1992. Now that Clinton had won the election, Livingstone was
attempting to get the position of Director of Security for the
Presidential Inaugural Committee (PIC).\221\ Mr. Livingstone
contacted Marceca approximately 1 week later and asked him to
stop by the Old Navy Yard, which was PIC Headquarters. When
Marceca arrived at the Navy Yard, Livingstone told him that he
had gotten the job as Director of Security for PIC and asked
Marceca to work at PIC as the Security Coordinator.\222\ Mr.
Marceca accepted the offer and took the position on a volunteer
basis, taking time off from his Army CID position. According to
Marceca, he worked directly under Livingstone planning the
security aspect of access to Inaugural events.\223\ Mr. Marceca
spent the day of the Inaugural in the ``command post,'' the
Navy building, ``coordinating movements.'' \224\ After the
Inauguration was over, Marceca went back to his job at Army
CID.
---------------------------------------------------------------------------
\221\ Id., p. 34.
\222\ Id., p. 35.
\223\ Id.
\224\ Id., p. 39.
---------------------------------------------------------------------------
Craig Livingstone did not have such a clear recall of his
work with Anthony Marceca. Although Livingstone stated that he
did meet Marceca in 1984 while working advance on the Hart
campaign, his recollection was that he worked with Marceca only
``on occasion.'' \225\ When asked in a deposition whether he
knew of any other campaigns Marceca worked on, Livingstone
stated that he knew that Marceca had worked on the Hill and he
had a ``vague recollection'' that Marceca may have assisted at
the Inaugural.\226\ There is a direct conflict between
Livingstone and Marceca's testimony. Clearly, Marceca testified
that Livingstone asked Marceca to work with him on PIC, yet he
has no recollection of it. The two worked closely together.
Marceca explained that he worked at PIC for at least 40 days up
to and including the day of the Inaugural.\227\
---------------------------------------------------------------------------
\225\ Livingstone deposition, June 14, 1996, p. 22.
\226\ Id.
\227\ Marceca deposition, June 18, 1996, p. 36.
---------------------------------------------------------------------------
1. Marceca's quest for a detail to the White House
Livingstone took a position with the White House Office of
Personnel Security on February 8, 1993. Sometime after
Livingstone began working at the White House, Marceca contacted
Livingstone to inquire about the possibility of a detail to the
National Security Council at the White House.\228\ Mr.
Livingstone checked on the National Security Council detail and
reported back to Marceca that he did not think it was
possible.\229\ According to Marceca, Livingstone explained that
there was a possibility of an opening for a clerical type
position in his office, OPS.\230\ In March 1993, Livingstone
contacted Marceca and told Marceca that he had gotten
permission to bring in someone to assist in the office. He
described the position as a clerical-type position, ``going
over people's background reports and making files and collating
information, and it . . . did not involve
investigations.''\231\ Livingstone asked Marceca to send him a
resume at that time. In a deposition before the committee,
Livingstone recalled that Marceca had told Livingstone that he
wanted to work at the White House. Messrs. Livingstone and
Marceca discussed general ways that Marceca might be available
to assist the Office of Personnel Security.\232\
---------------------------------------------------------------------------
\228\ Id., p. 41.
\229\ Id.
\230\ Id., p. 42.
\231\ Id., p. 43.
\232\ Livingstone deposition, June 14, 1996, pp. 24-26.
---------------------------------------------------------------------------
2. The White House requests Marceca
Mr. Livingstone presented the idea of Marceca's detail to
Associate White House Counsel William Kennedy.\233\ Mr. Marceca
had interviews scheduled with Kennedy on March 18 and 24,
1993.\234\ After interviewing Marceca, Kennedy wrote to
Secretary of Defense Les Aspin on April 5, 1993 to request the
detailing of Anthony Marceca. The detail was to be on a non-
reimbursable basis, to OPS, beginning on April 12, 1993.\235\
Mr. Kennedy stated in the letter, ``I have learned of Agent
Marceca's unique investigative abilities and background and
would greatly appreciate his full-time assistance here.'' \236\
The following day Kennedy received a reply from David C. Allen,
the Director of Marceca's unit at the Army CID.\237\ Mr. Allen
recommended Marceca for the detail, stating, ``Mr. Marceca is
always the master of every situation,'' and ``[he] is a sound
and logical thinker, capable of handling any number of critical
and sensitive missions at one time.'' \238\ In his letter to
Kennedy, Allen warned Kennedy not to be dissuaded if the
military leadership of CID objected to the detail of Anthony
Marceca. He further stated his readiness ``to discuss, in great
detail, the high regard I have for Mr. Marceca both
professionally and personally.'' \239\ On the same day, April
6, 1993, Kennedy called Marceca.\240\
---------------------------------------------------------------------------
\233\ Id., p. 25.
\234\ Anthony Marceca document (unnumbered). Calendar of Anthony
Marceca, dated March 18, 1993; March 24, 1993.
\235\ White House document CGE 043823.
\236\ Id.
\237\ White House document CGE 043821.
\238\ Id.
\239\ Id.
\240\ Anthony Marceca document (unnumbered). Calendar of Anthony
Marceca, dated April 6, 1993.
---------------------------------------------------------------------------
The letter which was sent to Secretary of Defense Les Aspin
on April 5, 1993 requesting the detail of Marceca was then re-
sent on April 13, 1993. The text of the letter is the same,
however the date had been changed.\241\ The next correspondence
in the attempt to get Marceca detailed was on June 22, 1993. In
that letter Kennedy wrote to Colonel Michael Sheffield,
Executive Secretary to the Secretary of Defense.\242\ In this
letter he states that Craig Livingstone had requested that
Special Agent Marceca be detailed to the Office of Personnel
Security (OPS).\243\ Mr. Kennedy also notes that Marceca's
experience in reviewing and screening potential candidates
would be invaluable to OPS in completing its ongoing review of
military personnel assigned to the White House, as well as
providing personnel services related to security for the staff
of the Executive Office of the President.\244\
---------------------------------------------------------------------------
\241\ White House document CGE 043816.
\242\ White House document CGE 043819.
\243\ Id.
\244\ Id.
---------------------------------------------------------------------------
Mr. Marceca's detail was ultimately approved on August 5,
1993, by Deputy Assistant Secretary of Defense, Lieutenant
General Robert M. Alexander in a memorandum to William
Kennedy.\245\ On August 9, 1993 Marceca went to the White House
and received his hard pass giving him access to the White
House, although he did not begin his detail at the White House
until August 18, 1993.\246\
---------------------------------------------------------------------------
\245\ White House document CGE 043822.
\246\ White House document CGE 043818. Detail authorization form
for Anthony Marceca.
---------------------------------------------------------------------------
3. Marceca has access to the White House before his detail
According to White House records, Marceca was placed on
``access lists'' by Livingstone beginning as early as March 24,
1993.\247\ White House Access lists allow an individual to
enter the White House without appointment for the period of
time that they are on the list.\248\ Individuals who enter via
an access list, simply check in at any entry post, produce
positive identification and are granted a pass to enter the
complex.\249\ Mr. Marceca was placed on access lists by Craig
Livingstone and granted continuous access to the White House
complex from March 24 through July 31, 1993.\250\
---------------------------------------------------------------------------
\247\ White House document CGE 047382-3. White House access list.
\248\ Security of FBI Files hearings, July 17, 1996, p. 148.
\249\ Id., p. 147.
\250\ White House document CGE 047382-047631.
---------------------------------------------------------------------------
The Secret Service places individuals on an access list
based on a request from the Office of Personnel Security.\251\
Because Marceca was on an access list, he could have entered
and exited the White House at any time throughout the 4 month
period before his detail began and there would be no record of
it.\252\
---------------------------------------------------------------------------
\251\ Cerf deposition, August 12, 1996, p. 41.
\252\ Security of FBI Files hearing, July 17, 1996, p. 149.
---------------------------------------------------------------------------
The White House's attempts to get Marceca detailed to the
Office of Personnel Security lasted 5 months and involved
several attempts. Mr. Kennedy testified that he was told by
Livingstone that the office could use Marceca's expertise in
dealing with the numerous members of the military that have
access to the White House.\253\ Despite all of Kennedy's
efforts, he has a vague recollection of the complications of
obtaining Marceca or even the outstanding qualifications that
Marceca ostensibly possessed.\254\ Mr. Marceca, however, spent
the majority of his time sifting through SF-86's for errors and
working on the Update Project. It appears that a great amount
of time was spent in getting a friend of Livingstone's detailed
at the Army's expense. Why was it so important to detail Tony
Marceca to the White House?
---------------------------------------------------------------------------
\253\ Security of FBI Files hearing, June 26, 1996, p. 129.
\254\ Kennedy deposition, June 18, 1996, pp. 38-44.
---------------------------------------------------------------------------
C. Marceca's Introduction to the White House Office of Personnel
Security
1. Introduction
The Clinton administration had problems getting through the
paperwork necessary to obtain permanent White House passes for
its staffers during the first year and a half of the
administration.\255\ One of the problems was a backlog in the
processing of the SF-86 forms, which had been filled out by new
White House staff members. The SF-86 is a questionnaire which
calls for sensitive and personal information from the
appointee. Former White House Counsel A.B. Culvahouse described
the form as ``designed to affirmatively encourage the
furnishing of adverse or derogatory information.'' \256\ Each
SF-86 was reviewed for errors and completeness. In previous
administrations, only the Counsel to the President, his deputy
and the director of the Security Office would review the SF-
86's.\257\
---------------------------------------------------------------------------
\255\ See generally GAO report on ``Personnel Security: Pass &
Security Clearance Data for the Executive Office of the President,''
October 1995.
\256\ Security of FBI Files hearing, June 19, 1996, p. 32.
\257\ Id., p. 46.
---------------------------------------------------------------------------
Once checked, the SF-86 would be sent to the FBI to begin
the process of a background investigation. Anthony Marceca, a
temporary detailee, took responsibility for this project when
he began working at OPS. Mr. Marceca testified that the first
day he began to work in OPS, the backlog of SF-86 forms was
piled up on his desk in a stack 2\1/2\ feet high.\258\
---------------------------------------------------------------------------
\258\ Marceca deposition, p. 83.
---------------------------------------------------------------------------
Although Marceca began working in the White House on August
18, 1993, prior to that, on August 9th, he went to the White
House to get his pass and to discuss what his duties would
be.\259\ According to Marceca, he met with Nancy Gemmell, Lisa
Wetzl and Craig Livingstone.\260\ Mr. Marceca stated that at
that meeting Nancy Gemmell explained to him the procedures to
follow for the duties he would be performing while working with
OPS.\261\ Ms. Gemmell was a holdover employee who had worked in
OPS since 1981, the beginning of the Reagan
administration.\262\
---------------------------------------------------------------------------
\259\ Id., p. 60.
\260\ Id., p. 153.
\261\ Id.
\262\ Security of FBI Files hearing, June 19, 1996, pp. 38-39. Mrs.
Gemmell stayed on in the Clinton administration until August 13, 1993
to assist in training the new staff.
---------------------------------------------------------------------------
During that meeting Marceca took notes of what he was
told.\263\ Mr. Marceca stated that Nancy Gemmell showed him the
procedures he should follow in completing the ``Update
Project'' as well as other duties he was expected to
perform.\264\ However when asked whether she personally gave
Marceca the Secret Service list to continue the Update Project,
Gemmell stated, ``[N]o sir; I had no idea who would be assuming
that responsibility.'' \265\ Ms. Gemmell did leave behind a
written sheet of instructions which he would be able to refer
to after she left.\266\
---------------------------------------------------------------------------
\263\ Anthony Marceca document (unnumbered). Handwritten notes of
Anthony Marceca dated August 9, 1993.
\264\ Marceca deposition, p. 61.
\265\ Security of FBI Files hearing, June 19, 1996 p. 90.
\266\ Id.
---------------------------------------------------------------------------
2. Discrepancies in Marceca's testimony
In stark contrast to his testimony before the committee
that he thought everyone on the ``update list'' was in need of
access to the White House complex, his handwritten notes make
it clear that he was aware that OPS was responsible for taking
former White House employees off of the lists. He wrote: ``De-
activate (sic) former staff . . .'' \267\ Mr. Livingstone,
Marceca's supervisor, also was aware that it was the White
House's responsibility to inform the Secret Service who to take
off of their lists of active pass holders. In a March 1993
memorandum to Associate Counsel Bill Kennedy, Livingstone
wrote:
---------------------------------------------------------------------------
\267\ Marceca document production (unnumbered). Handwritten notes
dated August 9, 1993.
Please note that there are many Bush Administration
employees that still have active badges. USSS [U.S.
Secret Service] informs me that it is WHS [White House
Staff] responsibility to deactivate badges. I am
working with WHOMA [White House Office of Management
and Administration] to begin this process.\268\
---------------------------------------------------------------------------
\268\ White House document CGE 053677. Although the memorandum is
undated, the information contained within clearly indicates that it was
created in March 1993.
In his deposition, Marceca testified that he did not know
what a Secret Service WAVES list was, nor did he know what a
temporary pass holder or permanent pass holder list was.\269\
The Secret Service would provide the Office of Personnel
Security with an updated passholders list on a monthly basis or
upon request.\270\ When asked whether he had ever seen Secret
Service lists which were separated by office, Marceca testified
that he did not think that he had gotten any lists which were
broken down by office until January 1994.\271\ Nancy Gemmell
stated that when she left the office in August 1993 she went to
the Secret Service, and requested a current master Secret
Service list separated by office.\272\ This is the list which
Gemmell left in the office with the understanding that an
additional list should be requested:
---------------------------------------------------------------------------
\269\ Id., pp. 94-95.
\270\ Wetzl deposition, p. 33.
\271\ Marceca deposition, p. 98.
\272\ Telephonic interview of Nancy Gemmell.
Ms. Gemmell. I was very much understood that the
initial list the office had was just that, an initial
list to be used to start the first steps of the Update
Project. It was very well-known that many personnel
decisions had yet to be made and therefore that follow-
up would have to be done.
* * * * *
Mrs. Collins of Illinois. So then during the regular
update projects in which you were involved, how often
would you request a list of names from the Secret
Service?
Ms. Gemmell. Basically, only twice, ma'am. At the
beginning to initiate the process, and then the second
time to be used as the file copy.
Mrs. Collins of Illinois. Did you leave behind any
Secret Service lists of names that you had requested
for the Update Project when you left in August of 1993?
Ms. Gemmell. The list that was received from the
Secret Service was left behind. It was still in
process; far from being completed; correct.\273\
---------------------------------------------------------------------------
\273\ Security of FBI Files hearing, June 19, 1996, pp. 50-51.
Mr. Marceca testified that the only regular Secret Service
lists which he knew of were weekly pass lists which he received
from the Secret Service and used to complete his project. He
stated that these lists contained only a small number of people
who were on the access lists and needed to be contacted to fill
out an SF-86.\274\
---------------------------------------------------------------------------
\274\ Id.,p. 94.
---------------------------------------------------------------------------
The Secret Service did not provide the office with ``access
lists'' in the manner that Marceca used the term. The Secret
Service lists are quite distinctive, as the paper is oversize,
on green and white computer printout paper with perforated
edges. The access lists to which Marceca refers are created by
the Office of Personnel Security based on names provided by the
Office of Management and Administration.\275\ In hearing
testimony however, Marceca, stated specifically that he
recalled working with the large, green and white computer
printout lists.\276\ Contrary to his statement, in his own
notes Marceca writes, ``Mr. David Watkins, head of management
and administration . . . monthly report submitted on passes.''
\277\
---------------------------------------------------------------------------
\275\ Denbo interview, September 4, 1996, p. 9.
\276\ Marceca deposition, p. 40.
\277\ Marceca document production (unnumbered). Handwritten notes
dated August 9, 1993.
---------------------------------------------------------------------------
Lisa Wetzl, a staff assistant in OPS, testified that when
Marceca arrived he took over her duties of helping to correct
and submit to the FBI the SF-86 for new employees.\278\ Ms.
Wetzl explained that both she and Nancy Gemmell went through
the process with him to make sure that he understood it.\279\
---------------------------------------------------------------------------
\278\ Wetzl deposition, pp. 20-21. (A.B. Culvahouse, Counsel to
President Reagan, testified before the committee that during his tenure
only the White House Counsel, his Deputy and the Director of the
Security Office were authorized to review the SF-86 forms. Security of
FBI Files hearing, June 19, 1996 p. 46.)
\279\ Id., p. 21.
---------------------------------------------------------------------------
The duties which Marceca was to perform in OPS were rather
amorphous. Mr. Marceca testified that, ``I would work in the
Office of Personnel Security doing updates of White House staff
and visitors, people that had access.'' \280\ Mr. Marceca
testified that Livingstone was his supervisor; \281\ however,
Livingstone testified that he did not supervise Marceca. With
regard to the Update Project, Livingstone testified, ``I didn't
supervise this project.'' \282\ Mr. Livingstone stated, ``I
don't believe that there was anything specific that Tony would
have been required to talk to me specifically about. Certainly
not in the form of projects.'' \283\ According to Livingstone,
nobody in the office was reporting to him on the activities of
Marceca.\284\ It appears from Livingstone's statements that
Marceca had free reign to do whatever he wanted without
consultation with actual staff.
---------------------------------------------------------------------------
\280\ Marceca deposition, p. 59.
\281\ Id.
\282\ Livingstone deposition, p. 33.
\283\ Id., p. 37.
\284\ Id., p. 39.
---------------------------------------------------------------------------
Mr. Marceca, however, testified that he was assigned the
Update Project by Livingstone.\285\ Livingstone, the Director
of the office, has no clear recall as to who was assigned the
project, who was working on the project at any given time, or
who was supervising the project.\286\ Ultimately, Livingstone
was in charge of all activities in that office, and Marceca was
the individual assigned to work on the Update Project.
---------------------------------------------------------------------------
\285\ Marceca deposition, June 18, 1996, p. 59.
\286\ Livingstone deposition, June 17, 1996, p. 33. (When asked who
supervised the project Livingstone stated, ``I believe Ms. Gemmell, Ms.
Anderson, Ms. Wetzl and Mr. Marceca.'' Ms. Gemmell had started the very
first stages of the project before she retired. Ms. Wetzl began working
on the project after she was promoted to Executive Assistant in late
1994, when she felt that she had enough authority to do so. See Wetzl
deposition, p. 66. Ms. Anderson apparently never worked on the project
at all.)
---------------------------------------------------------------------------
D. Marceca Begins the Update Project
1. Introduction
As discussed previously, when a new administration arrives
at the White House, nearly all of the previous administration's
records are removed for storage in the Presidential
archives.\287\ Those records would include the background
investigations and paperwork which are stored in the Security
Office. Therefore the records for all holdover employees must
be recreated by ordering the background investigations from the
FBI.
---------------------------------------------------------------------------
\287\ Prepared written statement of C. Boyden Gray, p. 6.
---------------------------------------------------------------------------
Marceca's task was to recreate these files, and he would
spend some time each week working on the Update Project. The
process to determine which files to order is simple. The Secret
Service has lists of all current passholders which it provides
to OPS. The Secret Service lists can be printed out in
different formats, one of which is current passholders by
office. Previous administrations would go down the lists
office-by-office to determine who the holdovers were in each
office. The staff would start with those offices which
routinely would have the largest amount of holdovers, such as
the General Services Administration and White House
contractors. The White House Office would normally be saved for
last as it would have the greatest turnover with the least
amount of holdovers. (The White House Office includes those
offices with mostly political appointees such as the Chief of
Staff and Communications.) \288\ After determining who the
holdovers were, the office would order those FBI background
investigations.
---------------------------------------------------------------------------
\288\ Id.
---------------------------------------------------------------------------
Before leaving the White House, Nancy Gemmell had begun the
very first stages of the Update Project:
Mr. Schiff. Can you describe what the Update Project
that you were working on until August 13th was?
Ms. Gemmell. Basically, again, sir, it was just
simply setting up the very first stages of it, and
basically, that means that you were making dummy files;
in other words, file jackets that would be used down
the road. So therefore you were typing file labels, you
were typing subject files. As an example, if you were
processing the General Services Administration
employees, you would type a subject file for that group
also.
Mr. Schiff. Did you have a way of dividing up the
Secret Service files--that is, GSA group or White House
group there or something like that?
Ms. Gemmell. As I recall the list, sir, the list of
employees was by category; in other words, was by
office.\289\
---------------------------------------------------------------------------
\289\ Security of FBI Files hearing, June 19, 1996, pp. 90-91.
At the time Marceca started in OPS Nancy Gemmell had already
retired. Ms. Gemmell testified that she did not know whether
Marceca used the list she had left behind, nor did she know who
would be assuming the responsibility for the Update
Project.\290\
---------------------------------------------------------------------------
\290\ Security of FBI Files hearing, June 19, 1996, p. 90.
---------------------------------------------------------------------------
2. Marceca's understanding of the Secret Service lists
Mr. Marceca stated that as part of the Update Project he
was to refer to a list and open files on individuals who had
access to the White House.\291\ He explained that his mission
was to open a file on each individual on the list and then
request a previous background investigation from the FBI.\292\
When asked whether Nancy Gemmell had ever instructed him to
determine the accuracy of the status of the names on the list,
Marceca answered:
---------------------------------------------------------------------------
\291\ Marceca deposition, p. 61.
\292\ Id., p. 62.
My project was to establish--was establish a file
that would perform a check to find out if these folks
were still on staff or not on staff . . . The list that
I was provided was a list to my understanding that
everybody on that list had access.\293\
---------------------------------------------------------------------------
\293\ Id., p. 66. (Later in the deposition Marceca is asked whether
there came a time when he discovered that there were people who were
not properly on those lists. Marceca answered, ``Not to my knowledge,
[to] the time I left, no.'' Marceca deposition, p. 73.)
Mr. Marceca's answer is puzzling. In the first sentence, he
states that he was to determine who remained on the White House
staff; he then states that everyone on the list had access. Mr.
Marceca claims to have worked from the same list throughout the
Update Project \294\ and had discovered that certain
individuals on that list were no longer granted access to the
White House complex.\295\ Mr. Marceca's statements appear
contradictory. It is unclear what Marceca actually knew about
the Secret Service lists. We do know from his own handwritten
notes that, in the course of processing the individual files,
he would place all files of White House Office staff in orange
folders, all Vice-Presidential Office staff in pink folders,
all volunteer and intern files in red folders and all support
staff (GSA) in blue folders.\296\
---------------------------------------------------------------------------
\294\ Id., p. 98.
\295\ Id., p. 100.
\296\ Marceca document production. (Unnumbered.) Handwritten notes
dated August 9, 1993.
---------------------------------------------------------------------------
The master Secret Service list includes a combination of
active and inactive passholders. The passholder names on the
list, however, are clearly differentiated by ``A'' or ``I,''
meaning active or inactive. According to the Secret Service,
the only list which Marceca could have used to request all 476
of the names would be the master list.\297\ Mr. Marceca
testified that he was under the impression that the ``A'' and
`` I'' designation on the Secret Service lists stood for
``access'' and ``intern.'' \298\ The list Marceca used also
contains the date of birth on each passholder.\299\ If one were
to accept Marceca's testimony regarding his belief that the
letters stood for ``access'' and ``intern,'' then it follows
that Marceca also believed that he was ordering background
files on holdover interns who were 30 to 70 years old, and who
had interned during Reagan and Bush administrations.
---------------------------------------------------------------------------
\297\ See infra Section VII, for further clarification of the
Secret Service lists.
\298\ Marceca deposition, June 18, 1996 p. 67.
\299\ Security of FBI Files hearing, June 26, 1996, p. 41.
---------------------------------------------------------------------------
Contrary to his already incredible testimony, the request
forms Marceca sent to the FBI on these ``interns,'' as in the
case of Billy Dale, identified them not as interns, but as
staff members.
3. Marceca's explanation of the Update Project
In a hearing before the committee, Marceca again clarified
the procedures he employed in doing the Update Project. He
stated in the hearing that he worked from a ``set of computer
lists'' which were kept in the vault of OPS.\300\ He added that
he attempted to go through the names on the list in the order
in which they appeared.\301\ For each name on the list he would
prepare a file folder and type the request on a preprinted form
addressed to the FBI Liaison requesting a ``copy of previous
report.'' \302\ On those forms is a space for the purpose of
the request. In that space, Marceca typed ``ACCESS (S).'' \303\
That denoted that the individual named on the form was
requesting access to the White House. The ``S'' was an internal
OPS designation for White House staff.\304\
---------------------------------------------------------------------------
\300\ Security of FBI Files hearing, June 26, 1996, p. 39. Mr.
Marceca's hearing testimony is contrary to his deposition testimony in
which he stated that he used only one list for the Update Project.
Marceca deposition, p. 61.
\301\ Id.
\302\ Id.
\303\ Id.
\304\ Id., p. 41.
---------------------------------------------------------------------------
After receiving the previous report from the FBI, Marceca
stated that he would review it to determine the suitability of
the person for a position in the Clinton administration, and to
check the date for the standard 5 year reinvestigation.\305\ In
the process of determining the date of reinvestigation, Marceca
claimed he would discover that many individuals were no longer
employed by the White House.\306\ Once Marceca began receiving
a number of files for individuals no longer working at the
White House and not seeking access to the White House, he
created a ``dead bin'' where he would put all of those
files.\307\
---------------------------------------------------------------------------
\305\ Id., p. 39. This is the same task which, in previous
administrations, only the counsel, deputy counsel and the director of
the Security Office were authorized to conduct.
\306\ Id., p. 40.
\307\ Id. The ``dead bin'' was a bin located in the vault which was
empty at the time Marceca began his detail.
---------------------------------------------------------------------------
Mr. Marceca also testified at the hearing about the ``set''
of lists which he worked from while he performed the Update
Project. He described the list as being on green and white
computer paper, approximately 8 inches wide which was folded
over and had connecting pages.\308\ The list he worked off of
was approximately an inch thick with the names of the
individuals in the left hand column.\309\ During the hearing,
Marceca recalled that the list was divided into subgroups
according to office, which is contrary to his deposition
testimony.\310\
---------------------------------------------------------------------------
\308\ Id., p. 40.
\309\ Id.
\310\ Id., p. 41. In his deposition testimony Marceca stated that
he did not see any lists which were divided by office until January.
---------------------------------------------------------------------------
Mr. Marceca told the committee that he was told by
Livingstone, and possibly others in the office, to work off of
the list he had been using.\311\ Mr. Livingstone and Lisa Wetzl
have both stated that they do not know which list Marceca was
using for the Update Project. Nancy Gemmell has testified that
she did not even know who would be working on the Update
Project, therefore she did not give anyone a Secret Service
list to use for the Update Project. In fact, she testified that
she instructed the individuals working in the office that they
would have to request an updated Secret Service list to
complete the project.\312\
---------------------------------------------------------------------------
\311\ Id., p. 106.
\312\ Security of FBI Files hearing, June 19, 1996, p. 50. Ms.
Gemmell testified, ``It was very much understood that the initial list
the office had was just that, an initial list to be used to start the
first steps of the Update Project. It was very well-known that many
personnel decisions had yet to be made and therefore that follow-up
would have to be done.''
---------------------------------------------------------------------------
Although Marceca stated in his deposition that he never
knew that there might be any problems with the list he was
using, he later stated in the committee hearing that he
realized there were problems, causing him to change his method
of updating the files:
Mr. Flanagan. You understood [the list] was current,
and it turns out it wasn't. Was it fair to say it was
an updated list?
Mr. Marceca. No, sir. It is fair to say that I
believed the list was current when I had that list.
Later on it developed that there were people that had
left the White House, when I started that project they
had no reason to believe that list was outdated or that
those people did not have access to the White House.
* * * * *
Mr. Marceca. I believe I worked on that list until I
discovered, and it was not a sudden discovery, but
somewhere after a couple of months--well, it is being
pointed out it was always the same list. When I
discovered that there were problems with that list, I
then changed my approach to updating.\313\
---------------------------------------------------------------------------
\313\ Id., pp. 284-286. (In his deposition testimony Marceca
directly contradicts this statement, when asked whether there came a
time when he discovered that there were people who were not properly on
those lists. Marceca answered, ``Not to my knowledge, [to] the time I
left, no.'' Marceca deposition, p. 73.)
There is no evidence to suggest that Marceca changed his
approach to the Update Project. In fact, when asked why he
stopped at ``G-o'' on the list, Marceca testified that was as
far as he had gotten on the list.\314\
---------------------------------------------------------------------------
\314\ Id., p. 194.
---------------------------------------------------------------------------
Mr. Marceca explained his two goals as he proceeded down
the list. First, he wished to determine that the individual was
still at the White House, and second was to ensure that he
``didn't prevent them from coming into the White House in case
of an emergency.'' \315\ His actions, however, contradict his
stated goals. Mr. Marceca did not check whether an individual
on the list was currently employed by the White House before
ordering his file, otherwise he would not have received the
files of over 400 individuals not currently employed by the
White House. It is not clear what emergency he referred to when
explaining his second goal. He did not have the ability to
prevent a current passholder from entering the White House
compound by conducting the Update Project. The only way to
accomplish that would be to notify the Secret Service to
deactivate the individual's pass.
---------------------------------------------------------------------------
\315\ Id., pp. 193-94.
---------------------------------------------------------------------------
In his deposition before the committee, Marceca described
two different procedures which he used for recreating the FBI
background files of holdover employees. He first explained that
he would work from the SF-86 form and then check the ``update
list'' to determine if the name on the SF-86 were also on the
list.
Answer. The very first thing I had to do was [take
the SF-86] go into the vault, pull out this list that
was in the vault, and check to see if the name was on
the list. Which means, that if it was on the list, then
they were former White House staffers. If their name
was on the list, I would put a check beside their name
. . . If they were not on the list, I would just
continue on. . . . This is the update list in the
safe.\316\
---------------------------------------------------------------------------
\316\ Security of FBI Files hearing, June 19, 1996, pp. 83-84.
He then stated that he worked off of the list, not the SF-86
form.\317\ Mr. Marceca then clarified this apparent
contradiction by explaining that after the project was not
advancing as planned, he began to make lists of names from the
``Update list'' and systematically circulate those to offices
in the White House.\318\ Attached to Marceca's lists of names
would be a request from Marceca asking whether any of the
individuals listed were holdovers.\319\
---------------------------------------------------------------------------
\317\ Marceca deposition, p. 65. In his testimony during a
committee hearing, Marceca testified that he worked from the list, not
from SF-86 forms. Security of FBI Files, June 26, 1996, pp. 40-42.
\318\ Marceca deposition, p. 99.
\319\ Id.
---------------------------------------------------------------------------
4. The ``Dead Bin''
In the process of making these requests, Marceca would be
informed by the various offices that certain individuals on
Marceca's list had left the White House some time ago. Marceca
explained:
In some cases those folks, the GSA [General Services
Administration] would tell me this person is still
here, but these people with GSA, two or three people
with GSA left in '87 and they are no longer here. So I
would go back to the file then and I would check off on
the list and I would not call for an SBI because I knew
they were not there.\320\
---------------------------------------------------------------------------
\320\ Id., p. 100.
If Marceca had actually gone through the list in this manner,
he would not have received any files of individuals who were
not currently working in the White House. Instead, he had
accumulated somewhere in the range of 500 files which he
stashed in the ``dead bin.''
Marceca defined what he considered his ``dead bin:''
That file that the update list sat in was where files
were stored that were what I recall dead files, files
of people who no longer worked at the White House. They
went in that file. They went in that bin. If there
was--if the name was not--if the person's name was not
on file in that bin, that meant that I had to open a
file. But before I opened a file, I checked into file
drawers to find out if a file had already been opened.
And if there was no file in the file drawer, I got a
new file folder, and I opened a new file . . .\321\
---------------------------------------------------------------------------
\321\ Id., p. 64.
The so-called ``dead bin'' which Marceca created raises some
very troubling questions. It is implausible that, after he
received even one file for an individual who was not presently
working at the White House, he did not raise any questions
about the list which he was using. Apparently he did not
question the list after receiving over 400 files of individuals
who were not working at the White House.
Mr. Marceca was a career investigator, trained to ask
questions and find answers. It is not plausible that Marceca
would not be able to determine the reason so many names, with
``I's'' next to them, no longer worked in the White House. Nor
is it plausible that he was unaware of whose files he was
requesting. When questioned why he requisitioned files on known
prior Republican officials, Marceca responded that he had seen
a high level Republican in the White House on one occasion. He
therefore, did not question whether any other well known
Republicans should be on the list as well.\322\
---------------------------------------------------------------------------
\322\ Marceca stated that one day he saw Marlin Fitzwater,
Assistant to the President and Press Secretary for President Bush, in
the White House complex.
---------------------------------------------------------------------------
Mr. Livingstone was aware that Marceca was working on the
Update Project, but claims that they did not have any
conversations about the project: ``I don't have a specific
recollection of talking to anyone about when Tony started or if
Tony was trained properly on it.'' \323\ Likewise, Ms. Wetzl, a
staff assistant at the time, did not know what process Marceca
was using to complete the Update Project.\324\
---------------------------------------------------------------------------
\323\ Livingstone deposition, June 14, 1996, p. 54.
\324\ Wetzl deposition, p. 26. When asked to describe what she
observed Marceca doing on the Update project, Wetzl answered, ``I knew
he was working on it, you know, and we were all in the same office so,
you know, I would see him at his work station but I really didn't get
involved in the details of what he was doing.'' (Emphasis added).
---------------------------------------------------------------------------
Mr. Marceca wrote memos to Livingstone to keep him up-to-
date on the status of his projects,\325\ and he kept detailed
lists of each previous report received from the FBI.\326\
Everyone who worked in the Office of Personnel Security, a one
room office,\327\ testified that they knew Marceca was working
on the Update Project, but never asked him about it.\328\
---------------------------------------------------------------------------
\325\ Marceca document production, Bates Stamp Nos. 000096, 000155.
In the first memo from Marceca to Livingstone, Marceca writes, ``White
House Staff; 50 Requests for Backgrounds were sent this week and the
previous 3 weeks to FBI. 50 Requests for Backgrounds are awaiting to be
sent next Monday to FBI. (We are at the `D' with this project.) Next
week; 1 Jan. 94, re investigation begins on GSA; AT&T; NSC; Credit
Union; and ``White House Staff, for BI's which expire in 1989.'' In the
second memo, under Re-investigations of White House Staff, Marceca
writes, ``White House Staff Update: 43 Request for Previous backgrounds
were this week. 50 each for the previous 5 weeks to FBI. 50 Request for
backgrounds are awaiting to be sent next Monday to FBI. 250 Request for
Previous Reports sent during this reporting period. (We are at the `F'
with the Staff Update Project.'').
\326\ Marceca document production, Bates Stamp Nos. 000004-000081.
Lists created by Anthony Marceca dated from September 24, 1993 through
February 10, 1994.
\327\ Livingstone deposition, June 14, 1996, p. 12. Mr. Livingstone
was asked about the layout of OPS, he answered, ``In 1993, it was one
large room.'' All of the staff members of the office worked in the same
room. Id.
\328\ See, Livingstone deposition, Wetzl deposition and Marceca
deposition.
---------------------------------------------------------------------------
All prior employees of the one room Office of Personnel
Security are unable to recall what Secret Service list Marceca
used for the project, including Marceca.\329\ Ms. Wetzl,
however, destroyed Ms. Gemmell's list, and testified she does
not believe Marceca used it for the Update Project.\330\ Wetzl
further stated, ``Nancy had left all her stuff in one corner
and I didn't believe that Tony had used any of that, that he
had gotten a new list from the Secret Service and was working
on that.'' \331\ Ms. Wetzl, Livingstone's 24-year old Executive
Assistant, made the decision to destroy the only possible clue
as to why the files were improperly obtained.
---------------------------------------------------------------------------
\329\ See, Security of FBI Files hearing, June 24, 1996, pp. 40-41.
Mr. Marceca explains that he does not have a vivid recollection of the
list which he used; Livingstone explained that he was not clear on the
details of the Update Project; however, it appeared that whatever list
Marceca was using caused the problem. Id., pp. 30-33; Ms. Wetzl
testified, ``I saw that it was a Secret Service list . . . I didn't
look at in detail, so I couldn't tell you what--which format this list
was in.'' Wetzl deposition, p. 34.
\330\ Security of FBI Files hearing, June 24, 1996, p. 113. Wetzl
stated, ``I did not work with her list. I threw it out.''
\331\ Wetzl deposition, p. 45.
---------------------------------------------------------------------------
5. Marceca's other duties
Committee documents show that Marceca's testimony of his
responsibilities in the Office of Personnel Security was not
comprehensive. Although he apparently did handle the processing
of forms for background investigations, he provided additional
services as well.\332\ Marceca's memoranda to Livingstone show
that he was assisting White House employees whose background
investigations threatened their jobs. One Marceca memo entitled
``Analysis of Personnel Background'' contained the following:
---------------------------------------------------------------------------
\332\ Among his other duties, Marceca's calendars show that on at
least two occasions he was summoned by Counsel to the President Bernard
Nussbaum's secretary to crack open Nussbaum's safe.
1. Subject should first fire the attorney who wrote
the letter, for the following reasons:
(a) The letter is combative and argumentative
(b) The letter does not offer explanations, but
excuses
2. I suggest the following be included in a new
letter:
(a) Subject has paid his/her dues to society, for
past mistakes.
* * * * *
(c) The shoplifting incident occurred because the
subject needed money to buy food . . .
* * * * *
(e) [I] am very sorry for the mistakes of my past . .
. and I believe being fired is unfair and
unreasonable.\333\
---------------------------------------------------------------------------
\333\ Marceca document production.
Why, as these documents suggest, did the Clinton
administration employ Marceca to cleanse background problems
for employees with criminal histories? How extensive was the
problem of employees with background blemishes? Was Marceca
hired specifically for that purpose? These questions raise
further concerns about the approach taken by the Clinton
administration toward security issues.
E. Marceca's Detail Ends
1. White House attempts to extend Marceca's detail
Marceca's detail ended in February 1994. Livingstone and
Kennedy had attempted to extend his detail; \334\ however,
there were ``unresolved issues'' in his background which made
Kennedy decide not to renew the detail.\335\ Livingstone
testified he thought Marceca would have liked to continue his
detail; however, he discussed these ``unresolved issues'' with
Kennedy who made the final decision not to renew the
detail.\336\ Mr. Kennedy explained:
---------------------------------------------------------------------------
\334\ See, Wetzl deposition, p. 36. Ms. Wetzl was asked whether
there were any attempts to re-detail Marceca to OPS. She answered, ``I
don't know. There was talk of it, but I'm not--I wasn't involved in
it.''
\335\ Livingstone deposition, June 14, 1996 p. 60.
\336\ Id., pp. 60-61.
Question. [W]e have been informed by the White House
that [Marceca] did leave sometime in February of '94.
Do you know why he was not retained at the White House?
Answer. Well, I don't remember the timing involved.
Okay? I simply do not know when things took place. But
if I remember correctly, there were two things that
sort of impacted this. One of which is that the White
House, I don't believe, wanted to pick up paying for
him. That's number one. Number two, Tony's background
had come in and there were some problems revealed with
it that made me think it might be better if he kind of
went back to where he was.\337\
---------------------------------------------------------------------------
\337\ Kennedy deposition, June 18, 1996, p. 41.
A White House document shows that Livingstone and Kennedy
requested an extension of Marceca's detail on February 28,
1994.\338\ The request is on a non-reimbursable basis starting
on February 28, 1994 and ending on June 27, 1994, with
Marceca's duties outlined as assisting the Security Office with
military adjudication. The form notes that reimbursement would
start on April 11, 1994.
---------------------------------------------------------------------------
\338\ White House production CGE 043810. The document is a form
entitled ``White House Office PERSONNEL FROM OTHER AGENCIES. It is
signed by William H. Kennedy, III and dated February 28, 1994.
---------------------------------------------------------------------------
This document was signed by Kennedy after Marceca's
original detail ended and after the problems in his background
were discovered on December 17, 1993. On March 8, 1994, the
White House Personnel Liaison contacted Livingstone asking,
``Do you know the start date for Tony Marceca?'' \339\ Mr.
Marceca testified that he was unaware of any attempts to have
him re-detailed to the White House.\340\ Messrs. Livingstone
and Marceca did discuss the problems which were developed in
Marceca's background investigation.\341\ Even after Kennedy and
Livingstone had received Marceca's background and knew there
were suitability issues, they requested that he be redetailed.
A March 17, 1994 letter, only recently produced to the
committee, shows that Livingstone had requested, as late as
March 3, 1994, a subsequent detail for Marceca. The March 17
letter respectfully withdrew the request. No explanation was
given for the change of heart on Marceca working at the White
House.\342\
---------------------------------------------------------------------------
\339\ White House production CGE 054258. Message from Kelli
McClure, White House Personnel Liaison for Management and
Administration, to Craig Livingstone, dated March 8, 1994 at 3:40.
\340\ Marceca deposition, June 18, 1996, p. 150.
\341\ Id., pp. 151-52.
\342\ Letter from Livingstone to Secretary of Defense Perry, dated
3/17/94; White House production 55749.
---------------------------------------------------------------------------
Mr. Kennedy stated that the problems in Marceca's
background were ``not problems that would have led to a
termination sort of on the spot.'' \343\ Although Kennedy
refused to discuss the specific problems, Marceca did tell the
committee that a woman had filed a private claim against him in
Texas.\344\ Marceca testified during a deposition for a civil
case he filed, that he was charged with official oppression for
misuse of his office.\345\ In that case, Marceca had brought
suit for slander against Justice of the Peace Lilly A.
Stephenson, whom the FBI interviewed during Marceca's
background investigation.\346\ Judge Stephenson met Marceca
while he was working for the Texas Attorney General's Office,
Medicaid Fraud Division. During the FBI interview of Judge
Stephenson, she stated, ``I would not hire him [Marceca] to
serve civil papers from my Justice of the Peace Office . . . he
is nothing but a blow hard and [I] could not recommend him for
a position of trust and confidence with the United States
Government.'' \347\
---------------------------------------------------------------------------
\343\ Kennedy deposition, June 18, 1996, p. 43.
\344\ Marceca deposition, p. 152.
\345\ Marceca v. Stephenson, No. A 94-CA-775-JN, p. 10 (W.D. Tx.
filed Nov. 1994).
\346\ See, Marceca v. Stephenson, No. A 94-CA-775-JN, (W.D. Tx.
filed Nov. 1994), deposition p. 10.
\347\ Marceca v. Stephenson, No. A 94-CA-775-JN, (W.D. Tx. filed
Nov. 1994), deposition exhibit, FBI 302 dated October 29, 1993.
---------------------------------------------------------------------------
2. Marceca does advance for the Clinton administration
After Marceca's detail ended he remained in close contact
with Livingstone and volunteered at the White House. Before
Marceca left the White House he had a meeting with Livingstone,
Lisa Wetzl and Mari Anderson. In that meeting Marceca agreed to
come in on successive Saturdays and work with the others to
finish the Update Project.\348\ Mr. Marceca claimed that he
never completed the project because he was sent on a detail to
Canada by CID.\349\ Upon his return, he was named acting
Special Agent in Charge of his Washington Fraud Team, and
stated he ``didn't have the time to do anything like that.''
\350\
---------------------------------------------------------------------------
\348\ Marceca deposition, p. 153.
\349\ Id.
\350\ Id.
---------------------------------------------------------------------------
Although Marceca did not have time to complete the Update
Project, apparently he did have time to do advance work for the
Clinton administration. On May 18, 1994, Marceca left a message
for Livingstone about an advance trip: ``He [Marceca] just got
off a trip w/ Perry (Sec.) [Secretary of Defense William
Perry]. He would [like] to talk to Craig about what he
observed.'' \351\ He had left a message for Livingstone earlier
in the month stating that he, ``cannot go on [the] trip to
Normandy.'' \352\ At the end of June 1994 Marceca left a
message that, ``[he] wants to go to lunch/ also wants to go on
trip w/ you.'' \353\ Mr. Marceca appears to have continued to
work on advance trips through 1995 and 1996, according to phone
messages he left for Livingstone.
---------------------------------------------------------------------------
\351\ White House production CGE 054252. Message from Tony Marceca
to Craig Livingstone, dated May 18, 1994 at 10:25 a.m.
\352\ White House production CGE 054255. Message from Tony Marceca
to Craig Livingstone, dated May 12, 1994 at 9 a.m.
\353\ White House production CGE 054254. Message from Tony Marceca
to Craig Livingstone, dated June 28, 1994 at 9:05 a.m.
---------------------------------------------------------------------------
In January 1995, Marceca left Livingstone a cryptic
message: ``If you're going on `that' trip, he'll see you are
taken care of. Otherwise, he'll talk to you later.'' \354\
``That'' trip was never identified in documents produced to the
committee. Mr. Marceca called Livingstone in September 1995 to
request assistance getting on the advance detail of a local
trip.\355\ Likewise, in December Marceca asked Livingstone to
schedule him for a trip in February or March 1996. Marceca
stated that he would be willing to take 2 weeks leave to do a
trip.\356\ These messages suggest that Marceca stayed in
contact with Livingstone and participated in numerous advance
trips for the administration.
---------------------------------------------------------------------------
\354\ White House production CGE 054249. Message from Tony Marceca
to Craig Livingstone, dated January 11, 1995 at 1:41 p.m.
\355\ White House production CGE 054265. Message from Tony Marceca
to Craig Livingstone, dated September 13, 1995 at 10:43 a.m.
\356\ White House production CGE 054248. Message from Tony Marceca
to Craig Livingstone, dated December 19, 1995 at 11:43.
---------------------------------------------------------------------------
Mr. Marceca also contacted Livingstone regarding issues
with his FBI background investigation. Mr. Marceca visited
Livingstone at the Office of Personnel Security on September
11, 1994. During that visit, Marceca reviewed his own FBI
background file. He explained that Livingstone did not allow
him to read it, rather he accidentally saw it:
Question. How did you happen to see the report?
Answer. I was visiting the White House and I was in
Mr. Livingstone's office, and I pulled out a--We were
in a conversation. He took a telephone call and turned
his back, turned around to his desk. There was
newspaper there. He was on the phone four or five
minutes. And I reached up and pulled the newspaper out
and background investigation spilled on the floor. I
picked up the background investigations, and the last
background investigation to pick up, put back in the
stack, which happened to have been all rolled up, was
my background investigation. I opened that up, and when
I saw my name--and I saw--I briefly read what the FBI
said. I turned a couple pages back, and I saw [Mrs.
Stephenson], what she said . . .
I looked at what Mrs. Stephenson said briefly. I read
that, and I flipped it back and I saw what Ms. Montag
said.
Question. Okay. Now----
Answer. I then put the file back underneath the rest
of the BI's and continued to read the newspaper until
Mr. Livingstone rejoined the conversation.
* * * * *
Question. And so what you did when you picked up that
report, opened it up and read it, you committed a
criminal act, did you not?
* * * * *
Answer. No sir, I was cleared to look at background
investigations.
Question. But not yours?
Answer. Sir, that was the fickle finger of fate that
[report] would fall on the floor.
* * * * *
Question. Is that not a violation of your code of
ethics?
Answer. I don't believe so, sir. It was an accidental
discovery.\357\
---------------------------------------------------------------------------
\357\ Marceca v. Stephenson, No. A 94-CA-775-JN, (W.D. Tx. filed
Nov. 1994), deposition of Anthony Marceca, February 20, 1995, pp. 114-
17.
After Marceca's ``accidental discovery'' of his FBI file during
his visit to the Office of Personnel Security in September, he
contacted Livingstone about the FBI again. On October 6, 1994
Marceca left a message for Livingstone stating, ``Got a visit
from the FBI.'' \358\ On December 16, 1994, Livingstone
received a message from ``Marvin:'' Will send over file on
Marceca.\359\ No last name is indicated on the message;
however, Marvin Krislov was an Associate Counsel to the
President in December 1994. It is odd that Livingstone would
have Marceca's file sitting out on a table in the vault 8
months after his detail ended.
---------------------------------------------------------------------------
\358\ White House production CGE 054268. Message from Tony Marceca
to Craig Livingstone, dated October 6, 1996 at 12:35.
\359\ White House production CGE 054271. Message from ``Marvin'' to
Craig Livingstone, dated December 16, 1994 at 11:42.
---------------------------------------------------------------------------
Mr. Marceca admitted under oath that he had read his own
background investigation after he no longer worked in the
Office of Personnel Security. The information which he read in
his background file was the basis for the lawsuit he filed on
November 14, 1994 against Judge Stephenson.\360\ Marceca's
actions exemplify why it is imperative that the Office of
Personnel Security employ only individuals who are
professional, circumspect and have demonstrated a sense of
responsibility and discretion.
---------------------------------------------------------------------------
\360\ Marceca v. Stephenson, No. A 94-CA-775-JN, (W.D. Tx. filed
Nov. 1994)
---------------------------------------------------------------------------
After learning more about the backgrounds of the
individuals in control of the function of requesting FBI
background files, it is all the more difficult to believe that
the unauthorized ordering of hundreds of FBI files of prior
Republican officials was an innocent mistake. Mr. Marceca's
explanations and excuses are not credible, and his actions
merit more investigation.\361\
---------------------------------------------------------------------------
\361\ Mr. Marceca's own handwritten notes show that he was aware
that he was responsible for instructing the Secret Service to
deactivate prior administration staff. Marceca document production
(unnumbered). Handwritten notes of Anthony Marceca, dated August 9,
1993.
---------------------------------------------------------------------------
IV. Initial Discovery of ``Tony's Files''
Although the public did not learn of the White House's
unauthorized request of over 400 FBI background files until
June 1996, White House employees knew about it since the fall
of 1994. Lisa Wetzl, Livingstone's 22 year old Executive
Assistant, discovered ``an awful lot of '' extra files which
Marceca had ordered while preparing to complete the Update
Project.\362\ There was a general understanding in the office
that the bottom row of files in the vault, was ``Tony's row.''
\363\ Ed Hughes, assistant in the Office of White House
Security, explained that he questioned Wetzl about the files,
``I think Lisa had explained that they were simply Tony's
files. They were files that she was not sure what they were
doing there, but they were just kind of there, taking up
space.'' \364\
---------------------------------------------------------------------------
\362\ Wetzl deposition, pp. 41-43. Ms. Wetzl knew about the row of
files which the office referred to as ``Tony's row'' or ``Tony's
files.'' She was not aware that the files were of prior Republican
administration officials until she began to review the files in the
fall. Id., p. 67.
\363\ Wetzl deposition, p. 65. Ms. Wetzl stated, ``The row after
row 15 was separate. That was Tony's stuff, Tony's project. We called
it Tony's row.''
\364\ Edward Hughes interview, August 13, 1996, p. 17.
---------------------------------------------------------------------------
When Ms. Wetzl began looking through ``Tony's files,'' she
recognized that some of the files had been mistakenly ordered
after identifying Marlin Fitzwater's name.\365\ She knew that
he did not work at the White House anymore.\366\ Ms. Wetzl told
Livingstone about her discovery: ``I said, `Craig, Tony ordered
all these files of previous administration people that we don't
need.' '' \367\ Ms. Wetzl testified that Livingstone had no
reaction to her statement, nor did he instruct her to do
anything with the files.\368\
---------------------------------------------------------------------------
\365\ Marlin Fitzwater was President Bush's Press Secretary and
Deputy Press Secretary to President Reagan.
\366\ Wetzl deposition, p. 43.
\367\ Id., p. 63.
\368\ Livingstone deposition, June 14, 1996, pp. 81-83.
---------------------------------------------------------------------------
Mr. Livingstone testified that he knew that his office had
requested Billy Dale's file within ``the last year or possibly
two.'' He also believed that he produced Dale's file to
Associate White House Counsel Neil Eggleston in response to the
GAO investigation of the Travel Office, which was completed on
May 2, 1994. Mr. Livingstone admitted that he had read the
contents of Billy Dale's file, but stated that it was in the
course of responding to the GAO inquiry. Mr. Livingstone
testified that he saw the request dated December 20, 1993 for
Billy Dale's FBI report, at that time.\369\ Mr. Livingstone was
therefore aware that Dale's file was requested 7 months after
he was fired from the White House Travel Office.\370\
---------------------------------------------------------------------------
\369\ Id., p. 81.
\370\ Id., pp. 81-83.
---------------------------------------------------------------------------
Ms. Wetzl set about her task of completing the Update
Project, leaving the files in the vault so that she could refer
to them if she discovered a name she might need.\371\ She never
consulted with anyone else nor did she ever contact the FBI
regarding the files on former Reagan and Bush officials.
According to Ms. Wetzl, the entire row of approximately 430
Republican FBI background investigation files in ``Tony's row''
simply remained in the office vault.
---------------------------------------------------------------------------
\371\ Wetzl deposition, p. 66.
---------------------------------------------------------------------------
Sometime between December 1994 and February 1995, Wetzl
boxed up the files and archived them with the Office of Records
Management (ORM).\372\ These boxes remained in ORM until ORM
analyst Tom Taggart reviewed the documents in response to the
committee's December 1995 request. Mr. Taggart notified
Associate White House Counsel Natalie Williams that Billy
Dale's FBI background file was among the documents archived by
the Office of Personnel Security. Ms. Williams testified that
she never reviewed the file or notified the committee that
Billy Dale's FBI background investigation had been archived by
Livingstone's office in December 1995.\373\ The document was
not produced until May 30, 1996, under threat of a contempt
vote against White House Counsel to the President, Jack Quinn.
---------------------------------------------------------------------------
\372\ Wetzl deposition, pp. 67-68.
\373\ Williams deposition, July 31, 1996, p. 24.
---------------------------------------------------------------------------
A. Lisa Wetzl's Background
1. Ms. Wetzl, who had no experience, should not have assumed the amount
of responsibility she undertook
Prior to the Clinton administration, Jane Dannenhauer, the
former Director of the Office of Personnel Security, never
allowed detailees from outside the White House or interns to
work in the Security Office because of the sensitive nature of
the files and paperwork.\374\ As with the majority of
Livingstone's assistants, Lisa Wetzl came to the Office of
Personnel Security as one of the first interns in June 1993
after graduating from college in May of the same year.\375\
Initially, Wetzl provided general office support, answering
phones and typing forms.\376\ She quickly assumed the
responsibility of checking the Standard Form 86 (SF-86) for
accuracy and notifying White House staff of any errors.\377\
Only 2 months later, Wetzl was hired as a full-time staff
assistant in the office.
---------------------------------------------------------------------------
\374\ Security of FBI Files hearing, June 19, 1996 p. 81.
\375\ Id., p. 7.
\376\ Id., p. 10.
\377\ Id.
---------------------------------------------------------------------------
Ms. Wetzl testified that her responsibilities ``didn't
significantly change except that I was now there for the long-
term so I could, you know, really get to work on things that
needed to get accomplished.'' \378\ She continued to ``help to
correct and to submit to the FBI the Standard Form 86 for new
employees.'' \379\ Before Ms. Wetzl came to the White House,
she had never even seen an SF-86, however, once Livingstone
hired her, she was correcting them for the FBI.\380\
---------------------------------------------------------------------------
\378\ Id.
\379\ Id., p. 14.
\380\ Id., p. 15. After Lisa Wetzl left the Office of Personnel
Security, Jonathan Denbo, a recent college graduate, took over the
responsibility of reviewing the SF-86 forms. Jonathan Denbo interview,
September 4, 1996, p. 5.
---------------------------------------------------------------------------
Ms. Wetzl testified that Nancy Gemmell, a holdover employee
in the Office of Personnel Security, trained her to read SF-86
forms.\381\ Ms. Gemmell, however, had never read an SF-86
before the Clinton administration took office.\382\ Ms. Gemmell
only recently learned the procedures to follow in checking an
SF-86 for completeness. In prior administrations, only the
Director of the office was permitted to review the FBI
background files and SF-86 forms.\383\ Ms. Dannenhauer,
however, was not retained on staff for a sufficient amount of
time to train the new Director and employees, as she was during
the transition from the Ford to Carter administration.\384\ Ms.
Dannenhauer explained, ``[Mr. Livingstone] was not there really
long while I was there. I only worked with him probably part-
time. He would come in and maybe be there a half a day . . .''
\385\
---------------------------------------------------------------------------
\381\ Id.
\382\ Security of FBI Files hearing, June 19, 1996 p. 46.
\383\ Id.
\384\ Id., p. 38. During the Ford/Carter transition, Ms.
Dannenhauer and one of her assistants remained for 2\1/2\ months to
train the new staff members and await a new Director, thereby ensuring
a smooth transition.
\385\ Id., p. 82.
---------------------------------------------------------------------------
Mr. Livingstone did not have the proper training necessary
to run the Office of Personnel Security. He was certainly not
capable of training his staff in procedures that he himself did
not know. Without practical work experience or training, Ms.
Wetzl should not have been placed in a position of
decisionmaking in an office which handled sensitive
information. The fact that nobody in the office even thought to
return the improperly obtained files to the FBI shows the lack
of knowledge required to work in the Office of Personnel
Security. Mr. Livingstone testified that the reason he did not
contact the FBI about the binful of files on prior Republican
administration officials was, ``We were never instructed to
return materials back to the FBI.'' \386\ Neither Livingstone
nor Wetzl had the ability to think on their own and make the
determination that a Democratic administration should not have
hundreds of Republican administration files.
---------------------------------------------------------------------------
\386\ Security of FBI Files, hearing, June 26, 1996 p. 138.
---------------------------------------------------------------------------
2. Limited inquiry
Ms. Wetzl's FBI background investigation was completed and
the results were provided to the White House on September 3,
1993. For reasons unknown, the Counsel's Office did not submit
her report to the Secret Service for adjudication until 7
months later, on April 11, 1994. She received her White House
permanent pass shortly thereafter, on April 25, 1994. Mr.
Livingstone requested CIA ``compartmented clearance'' for Ms.
Wetzl and she received three clearances above the level of top
secret in August 1994. The committee never received any
explanation for these delays. Ms. Wetzl continued to work in
the Office of Personnel Security throughout the year processing
and correcting incoming SF-86 forms, processing pass requests
and maintaining the weekly access and pass extension
lists.\387\
---------------------------------------------------------------------------
\387\ White House document production, CGE 54939.
---------------------------------------------------------------------------
On April 10, 1995, Livingstone notified the FBI of an
``apparent discrepancy between information on Ms. Wetzl's
Standard Form (SF) 86 and the information provided during her
initial interview with the FBI Special Agent.'' \388\ Special
Agent Gary Aldrich testified that he was the ``lead agent on
the Wetzl investigation.'' A ``limited inquiry'' was initiated
by the FBI and the results provided to Craig Livingstone on May
26, 1995.\389\ FBI general counsel advised the committee that
the reason for the ``limited inquiry'' was ``a discrepancy
regarding drug usage.'' \390\ Mr. Livingstone then asked the
CIA to review Ms. Wetzl's new limited inquiry results, and her
three CIA compartmented access clearances continued without
further inquiry. Ms. Wetzl left the Office of Personnel
Security in September 1995, to take the position as the
Confidential Assistant to the Secretary of the Army, the
Honorable Togo D. West, Jr.\391\
---------------------------------------------------------------------------
\388\ Letter from FBI general counsel, Howard Shapiro to Chairman
Clinger, July 24, 1996.
\389\ White House document production, CGE 54392.
\390\ Deposition of Gary Aldrich, 7/18/96, p. 53. In response to
committee questioning, Agent Aldrich described an instance in which:
There was a staff member who contended that the information on the
FBI summary was incorrect. It was on a case that I completed, and
communication was made to me first about this, I think. This individual
worked in the Security Office. . . . .
Well, there was a contention, about information that I had
submitted, that the information contained in the report was incorrect.
I was asked to--essentially, I was asked to go back and review this in
the context that if I could--if I could see that it could be possible
that it was incorrect, could I change it? This was spoken to me by
Craig Livingstone.
I never had a request like this before, and so I went back to my--
to the case file and I pulled the report. I reviewed whatever material
was in the file that could help me make a determination. After I
reviewed the material, I could not determine that I had made an error,
and so I reported back to Mr. Livingstone that I had reviewed the
material; I didn't think I made an error.
He then spoke to--either spoke to Jim Bourke or to Tom Renaghan or
both about this, contending that the matter, in his opinion was not
settled.
I was then contacted by my supervisor, Tom Renaghan, who asked me
once again to review it. I reviewed it. I suggested to him that there
was no change that I could make, and that is the--that was the end as
far as I knew. I have since learned that an agent was directed to come
to the White House to reinterview the person. . . . Agent Greg Schwarz.
And I can't tell you what happened after that, but I do know that this
person had since moved shortly thereafter to another agency. Aldrich
deposition, pp. 68-69.
\391\ Wetzl deposition, p. 8.
---------------------------------------------------------------------------
The committee has not been able to determine, due to
Livingstone's refusal to appear at a deposition, why Mr.
Livingstone suddenly ordered a limited inquiry on Ms. Wetzl's
``discrepancy'' that had apparently been in her background for
18 months. During these 18 months, she had top secret and CIA
clearances to review the most sensitive information, apparently
without concern by the White House Counsel's Office. Then, 4
months before her departure to take on a position requiring the
utmost confidentiality, Mr. Livingstone undertakes the review
of her background to clear up the ``drug usage discrepancy.''
\392\
---------------------------------------------------------------------------
\392\ July 24, 1996 letter from Howard Shapiro to Chairman Clinger.
---------------------------------------------------------------------------
B. Lisa Wetzl discovers ``Tony's Files''
1. Wetzl to complete ``Update Project''
Originally, Marceca planned to return to the White House
and complete the Update Project with the assistance of others
in the office.\393\ Mr. Marceca however, never completed the
project and it fell by the wayside for close to 10 months until
Lisa Wetzl took it upon herself to finish it.\394\ Ms. Wetzl
did not feel comfortable undertaking the Update Project while
she was only a staff assistant.\395\ She stated, ``I started--
when I was promoted to executive assistant is when I, you know,
felt I could start this project on my own and get it over with,
because I knew it had to be done. That was in the fall of
'94.'' \396\
---------------------------------------------------------------------------
\393\ Marceca deposition, p. 153.
\394\ Wetzl deposition, p. 66.
\395\ Wetzl deposition, p. 66.
\396\ Id.
---------------------------------------------------------------------------
2. Marlin Fitzwater, or too many files
Once Wetzl looked into what Marceca had been working on,
she realized that there were problems.\397\ She described what
she discovered when she began looking through the bin in the
vault which Marceca used:
---------------------------------------------------------------------------
\397\ Id., p. 41.
Tony had separated his files from the rest of the
files, I assume for easier access for him. I looked at
those stacks of files and I--first thing I realized was
that there were an awful lot of them, considering they
were only A through G. And just working for the
office--it had been a couple of years at least--I
didn't think that there were that many holdovers.\398\
---------------------------------------------------------------------------
\398\ Id.
When Wetzl began looking through the names on the files, she
realized that some of them were ``mistakenly'' requested.\399\
Ms. Wetzl recognized Marlin Fitzwater's name on a file and knew
that he did not work at the White House anymore.\400\
---------------------------------------------------------------------------
\399\ Id., p. 43.
\400\ Wetzl deposition, p. 43.
---------------------------------------------------------------------------
Ms. Wetzl described her first reaction as that of
exasperation when she realized that she would have to remedy
the problem.\401\ Ms. Wetzl never stated that she was alarmed
or concerned that files had been ordered on individuals who
were not seeking access to the White House.
---------------------------------------------------------------------------
\401\ Id.
---------------------------------------------------------------------------
Similarly, when Wetzl approached Livingstone about the
unauthorized files, he had no marked reaction.\402\ Ms. Wetzl
testified that she told Livingstone that, ``Tony ordered all
these extra files, what a pain.'' \403\ The only thing she can
remember Livingstone saying was, ``Oh, Tony,'' or a statement
to that effect.\404\ Mr. Livingstone and Ms. Wetzl were the two
most senior staff members in the office and neither of them
found it notable that hundreds of files were ordered on prior
administration officials, alleging that they had no idea that
they ought to return the files.\405\ Mr. Livingstone described
one situation where the office would return files to the FBI:
---------------------------------------------------------------------------
\402\ Id., p. 58.
\403\ Id.
\404\ Id.
\405\ Wetzl deposition, p. 59. Ms. Wetzl testified, ``Nancy, like I
said before, had briefly tried to explain to me before her impending
departure how to do everything, and it was my understanding that we
wanted to put in storage, it all had to go to Records Management;
Security of FBI Files hearing, June 26, 1996, pp. 137-138. Mr.
Livingstone testified, ``Sir, I am glad you asked that question. The
only information that I ever got--and I can't speak for the rest of the
people here, of course--the only information I ever got about what we
were to do with FBI files was to safeguard them, ensure that they were
remanded to Records Management at the end of the administration . . .
We were never instructed to return materials back to the FBI.''
Sir, if I could be specific, often--not very often
but often, we would get--for John D. Smith, we would
get John S. Smith's report sent to us by mistake by the
FBI. Now, that we would send back to the FBI if we knew
that we were requesting John D. Smith versus John S.
Smith, assuming they had no business ever at the White
House.\406\
---------------------------------------------------------------------------
\406\ Security of FBI Files hearing, June 26, 1996, p. 138.
Livingstone's attempts to make a distinction between the FBI
sending the wrong file and the White House requesting files
improperly are in conflict. It is disingenuous for Livingstone
to maintain that he believed that the two situations called for
a different response.
C. The ``Update Project'' Is Redone by Lisa Wetzl
1. Wetzl destroys the Secret Service list
Ms. Wetzl testified that upon discovering the unauthorized
files ordered by Marceca she began to look around the vault for
the materials which both Marceca and Nancy Gemmell used in the
course of the Update Project.\407\ Ms. Wetzl found a list which
she believed had been left by Nancy Gemmell, she explained, ``I
knew immediately that it was out of date. It was extremely long
and appeared to contain hundreds of names from past
administrations.'' \408\ Ms. Wetzl proceeded to destroy that
list, the only evidence which might have provided some
explanation as to why all of these files were ordered.
---------------------------------------------------------------------------
\407\ Security of FBI Files hearing, June 26, 1996 p. 46.
\408\ Security of FBI Files hearing, June 26, 1996, pp. 46-47.
---------------------------------------------------------------------------
Wetzl was questioned about why she would have destroyed the
list in a hearing before the Senate Committee on the Judiciary:
Senator Thompson. All right, so it could have
possibly been the same list that Mr. Marceca used to
obtain all those improper files? Is it possible?
Ms. Wetzl. Anything is possible, yes.
Senator Thompson. So you had the files there and you
had the list there, the Gemmell list?
Ms. Wetzl. Yes.
Senator Thompson. And you decided to destroy the
Gemmell list, or put it in the burn bag. Is that
correct?
Ms. Wetzl. Yes.
* * * * *
Senator Thompson. I guess I am just asking the
question--you had these files, you saw them, you saw
that there were many, many more than what was
appropriate, and simultaneously you had a list that
apparently had the same characteristics. It just occurs
to me that you might have wanted to compare that list
of the files to see whether or not you were holding a
list of the files that you were going to have to be
going through and working from, and that might have
helped you determine what Tony had used to get those
files.
Ms. Wetzl. Well, at that point, I didn't really--the
mistake had already been made. I didn't care what . . .
Tony had done . . .
* * * * *
Senator Thompson. The decision as to what to put in
the burn bag and what to archive--is that something
that you were instructed on or something you made a
decision on yourself?
Ms. Wetzl. It was something I made a decision on
myself.\409\
---------------------------------------------------------------------------
\409\ White House Access to FBI Summaries: Hearings Before the
Senate Committee on the Judiciary, 104th Cong., 2d Sess., June 28, 1996
pp. 167-171.
Although Wetzl testified that her understanding was that ``all
paperwork that we didn't need anymore that we wanted to put in
storage, it all had to go to Records Management.'' \410\ The
materials Marceca was using never went to Records Management.
It was destroyed. With that act, Ms. Wetzl eliminated the only
real evidence of exactly what Marceca had in his possession
when he ordered the hundreds of files on prior Republican
administration officials.
---------------------------------------------------------------------------
\410\ Deposition of Lisa Wetzl, p. 59.
---------------------------------------------------------------------------
2. Process by which the project is completed
Ms. Wetzl testified that after she discovered Marceca's
``extra files,'' she proceeded with Project Update. She began
working off of a list from the Secret Service ``of pass-
holders'' and went through the list to identify names that no
longer should have access to the White House complex.\411\ When
Wetzl discovered a name of an individual that was no longer an
active passholder, she notified the Secret Service to remove
the name from the list. Ms. Wetzl also cross referenced her
list with updated lists from supervisors of the departments
within the White House complex.\412\ Because she thought all of
the other lists were ``hopelessly outdated,'' she simply
started over creating her own list.
---------------------------------------------------------------------------
\411\ Deposition of Lisa Wetzl, p. 53.
\412\ Id.
---------------------------------------------------------------------------
Unlike her predecessor Mr. Marceca, Wetzl testified that
she did not read the new Project Update files that she received
for content.\413\ She merely looked at the top of the first
page to determine when the individual would need a 5-year
reinvestigation and then ``filed them.''
---------------------------------------------------------------------------
\413\ Id., p. 55.
---------------------------------------------------------------------------
3. Extra files are boxed up and archived
The group of files ordered by Marceca were gathered
together by Wetzl sometime between December 1994 and February
1995. Ms. Wetzl testified that she ``mentioned it'' to
Livingstone that files from the previous administration had
been ordered and that she may have told him that ``Marlin
Fitzwater's file is there.'' \414\
---------------------------------------------------------------------------
\414\ Id., p. 63.
---------------------------------------------------------------------------
These files remained in the White House Security Office
vault, separated from the other files for ``a long period of
time.'' Ms. Wetzl explained that she left them in the office
until she figured out ``whose we needed and whose we didn't.''
\415\ At some point, Wetzl placed all of ``Tony's files'' in
boxes to be taken to the archives. She typed up a list of the
names of each individual whose file was placed in the box and
took the boxes to the Office of Records Management located next
door to the Office of Personnel Security. The files remained at
the Office of Records Management until they were retrieved by
White House Counsel Sally Paxton at the behest of Jane
Sherburne on June 6, 1996.
---------------------------------------------------------------------------
\415\ Id., p. 58.
---------------------------------------------------------------------------
V. White House Counsel's Office Discovery of FBI Files
A. Billy Dale's File
1. Office of Records Management responds to subpoena
On December 19, 1995, White House Special Counsel to the
President, Jane Sherburne, Associate Counsel Natalie Williams
and Special Associate Counsel Jonathan Yarowsky distributed a
memorandum to selected White House staff regarding the
committee's request for certain documents relating to the White
House Travel Office firings.\416\ Shortly thereafter, Williams
was notified by Tom Taggart, of the Office of Records
Management, that in preparing documents for release to the
committee, he had discovered the FBI background file of Billy
Ray Dale.\417\ In a hand-written note to his file dated
December 27, 1995, and signed by Taggart, he memorialized his
conversation with Williams regarding Billy Ray Dale's FBI
background investigation file:
---------------------------------------------------------------------------
\416\ White House document production, CGE 42825-42827. The
memorandum only asks for documents ``created as of May 31, 1995'' to be
provided to the committee and provides a limited definition of the
``White House Travel Office matter'' for purposes of determining which
documents are responsive.
\417\ Natalie Williams deposition, p. 19.
Today, on 12/27/95, I notified Natalie Williams about
Billy Dales FBI (retired) report (background check &
vetting) that we received with other files from Craig
Livingstone. She said that this file involved personal
and personnel privacy issues--would not be sent to the
Committee, nor would it be released. She is not
interested in seeing file.
/s/ (Tom Taggart, Jr.)
12/27/1995 \418\
---------------------------------------------------------------------------
\418\ Handwritten memorandum of Tom Taggart, Jr., December 27,
1995, produced to the committee in a July 18, 1996 letter from Jane
Sherburne to Chairman Clinger.
As the note makes clear, while both the White House Counsel's
Office and the Office of Records Management knew of the
existence of Dale's background investigation file, neither had
any intention of including it in the production of materials to
the committee.
2. White House Counsel determines that FBI file is a personnel file
In a June 10, 1996 letter to Chairman Clinger, Jack Quinn
alleged that he recalled telling the chairman during the
meeting that ``Billy Dale's personnel file'' was among the
group of personnel/vetting records being withheld by the White
House at that time.\419\ Mr. Quinn's statement is not true. The
discussion revolved around David Watkins personnel file, a
central figure in the Travel Office affair. The committee was
never told that Billy Dale's file was among the files being
withheld and certainly was not informed that the White House
was withholding a December 1993 request for his FBI background
investigation file. Moreover, Quinn never distinguished between
a ``personnel'' file and an FBI background investigation file.
These are very different files that seem to blend together in
the White House's explanation.
---------------------------------------------------------------------------
\419\ Letter from Jack Quinn, Chief White House Counsel, to William
F. Clinger, Jr., June 10, 1996.
---------------------------------------------------------------------------
Mr. Quinn's letter, however, evidences another
contradiction. Although the letter states that he informed
Chairman Clinger about the Billy Dale file at a February 15,
1996 meeting, Special Counsel Jane Sherburne deposition
testimony conflicts with Quinn's statement. Ms. Sherburne
testified that she did not even know about Billy Dale's FBI
file until June 4, 1996.\420\ Ms. Sherburne attended the
February 15 meeting with Quinn.
---------------------------------------------------------------------------
\420\ Deposition of Jane Sherburne, July 23, 1996 p. 71.
---------------------------------------------------------------------------
3. Natalie Williams passes on information to Wendy White
In an effort to keep documents from the committee, the
White House conducted an extensive operation of reviewing
documents in order to ensure that damaging information was not
released. The White House Counsel's Office hired additional
staff just to review, scrutinize, redact, and finally, produce
documents the committee requested.\421\
---------------------------------------------------------------------------
\421\ White House document DF 780643-654, task list created by Jane
Sherburne.
---------------------------------------------------------------------------
Wendy White was one of those hired to assist in the
document review. Ms. White was hired as Special Associate
Counsel in mid-February 1996 to assist with the production of
materials to the committee. According to White, she learned of
the Dale file as soon as she began work at the White House.
Shortly after I started, Natalie Williams, who had
been working on the subpoena response, returned to
private practice. Before she left, she provided me with
certain information I needed in order to complete the
production. During this transition period, she advised
me that the Office of Records Management maintained a
Billy Dale file responsive to the subpoena that should
be retrieved from ORM if the committee and White House
reached agreement that the file should be produced for
in camera review or otherwise.\422\
---------------------------------------------------------------------------
\422\ Statement of Wendy S. White concerning production of Billy
Dale FBI file, July 18, 1996.
In several instances where the White House produced documents
in partial compliance with the committee's subpoena, the Billy
Dale file was not included.
4. Wendy White's handling of Billy Dale file
a. May 21, 1996--orders the Dale file from OPS
In early May 1996, after the committee was forced to hold
Quinn in contempt, the White House decided to comply with the
committee's subpoena of January 11, 1996. Responding to this
action, the White House began to prepare documents for release
to the committee. Ms. White wrote of this preparation of
documents, ``On May 21, 1996, I had the Office of Personnel
Security retrieve the Billy Ray Dale file from the Office of
Records Management. At my direction, the file was then copied
and prepared for production.'' \423\ Ms. Sherburne wrote a July
18, 1996 letter to the chairman explaining that she and Ms.
White had no discussions about a Billy Dale FBI background
file; rather they discussed a personnel file.\424\ Ms.
Sherburne's own letter makes clear that she understood there to
be a difference between personnel files and FBI background
files, and that she did not know of the Billy Dale FBI
background file.\425\ The White House steadfastly maintains,
however, that at the Febuary 15, 1996 meeting they were
discussing FBI background files, before Sherburne claims to
have known of the Billy Dale file. White House Associate
Counsel Natalie Williams also believes she likely told
Sherburne about the Billy Dale file.\426\
---------------------------------------------------------------------------
\423\ Statement of Wendy S. White concerning production of Billy
Dale FBI file, July 18, 1996.
\424\ July 18, 1996 letter from Special Counsel to the President
Jane Sherburne to Chairman Clinger.
\425\ Id.
\426\ Williams deposition, p. 18.
---------------------------------------------------------------------------
White told the staff of the committee, ``I gave the
original file back to the Office of Personnel Security on May
23, 1996 to be returned to ORM. The White House produced the
Billy Dale file to the committee, together with the other
documents, on the morning of May 30, 1996.'' \427\
---------------------------------------------------------------------------
\427\ Jane Sherburne letter, July 18, 1996.
---------------------------------------------------------------------------
B. Chairman Clinger's June 5, 1996 statement
1. The committee receives 1,000 pages
On May 30, 1996, the White House produced 1,000 documents
to the committee in order to avoid a vote by the House of
Representatives on the contempt citation against Quinn. That
production included Dale's FBI background file and the
memorandum from Bernard Nussbaum, then Counsel to the
President, to the FBI liaison requesting the file. That was the
first time the committee learned of the White House improperly
requesting, maintaining, and withholding the FBI background
file of Billy Ray Dale.
Investigators for the committee were reviewing the White
House documents when they came upon memoranda of an extremely
personal nature about Dale and his family. Affixed to these
documents was a December 20, 1993 memorandum from Nussbaum to
the FBI requesting a copy of a ``previously requested report''
for the background file of Billy Dale. Mr. Dale was dismissed
from the White House 7 months before the request, and had no
need for White House access.
2. Chairman Clinger's statement on the Billy Dale file
Chairman Clinger first learned that the White House had
obtained the FBI background file of Dale from the White House
May 30, 1996 document production. He made no public statement
on the matter until June 5, 1996.
At a press conference to express his outrage on this
matter, Chairman Clinger released the memorandum from Nussbaum
requesting the FBI background file of Billy Ray Dale. Chairman
Clinger asked, ``Can there be any legitimate reason why
President Clinton's White House Counsel requested the
confidential FBI background checks a full 7 months after, I
repeat after, Billy Dale was fired and unjustly accused and
smeared with allegations of wrongdoing? And yet, for a reason
that has not yet been determined, the FBI complied with the
request.'' \428\
---------------------------------------------------------------------------
\428\ Statement of William F. Clinger, Jr., June 5, 1996.
---------------------------------------------------------------------------
Out of concern for the individuals whose privacy had been
violated, Chairman Clinger took steps to commence a full
investigation of the White House's improper actions in
obtaining this and possibly other FBI background files.
VI. FBI Involvement in the Files Matter
On June 5, 1996, Chairman Clinger telephoned FBI Director
Louis Freeh upon discovery of the White House document
requesting the background file of Billy Ray Dale. Chairman
Clinger, in a press conference, notified the public of this
event and released the request form, the document used by the
White House to obtain FBI background investigations, from the
White House.\429\ Director Freeh immediately sought a meeting
with FBI General Counsel Howard M. Shapiro and Deputy General
Counsel Tom Kelley.\430\ When he could not locate Shapiro,
Freeh sought answers from Kelley on how background files of
former White House employees could land in the White
House.\431\
---------------------------------------------------------------------------
\429\ The FBI file, itself, was never made public by the committee.
However, before the White House finally released documents to the
committee in compliance with the subpoena, it made many of the 1,000
pages of documents available to the press. The committee has been
unable to ascertain whether sensitive, background information on Billy
Dale was included in the materials made available to the press.
\430\ Kelley deposition, pp. 22-23
\431\ Id.
---------------------------------------------------------------------------
A. Director Freeh initiates investigation
According to Kelley, Freeh showed him the document that
Chairman Clinger released and asked Kelley to undertake an
initial investigation of the White House request for Billy Ray
Dale's file.\432\ Kelley told the committee that ``[the
Director] asked me to come over and he explained to me that
this release that Congressman Clinger had made, he showed me a
copy of the document and he said he would like to determine how
that could have happened, and dispatched me to find out.''
\433\
---------------------------------------------------------------------------
\432\ Id.
\433\ Id.
---------------------------------------------------------------------------
1. Tom Kelley's initial investigation
Kelley recognized the source of the document as the
memorandum used by the White House to request an FBI background
investigation and went to discuss the document with the
Executive Agencies Sub-unit of the Information Resources
Division at the FBI. Kelley spoke with SPIN Unit Chief Jim
Bourke, as well as Jan George, and Formy Duvall, of the
Executive Agencies Sub-unit of the Information Resources
Division.\434\
---------------------------------------------------------------------------
\434\ Id., pp. 23-25.
---------------------------------------------------------------------------
David Kitchen, recently appointed Chief of the Executive
Agencies Sub-unit, soon became involved in Kelley's inquiry.
Mr. Kelley received the background file of Billy Dale from
Bourke. Mr. Bourke had already retrieved the file, aware of the
controversy surrounding it. Kelley soon learned that the file
had been disseminated to the White House on January 6, 1994, in
response to a December 20, 1993 request form.\435\ This was
more than 2 years before the White House mentioned the file to
the committee.
---------------------------------------------------------------------------
\435\ Id., pp. 23-25.
---------------------------------------------------------------------------
When background material is released to a Federal agency,
it is reviewed by the FBI for information that should not be
released. On the back of each page that is released, a stamp is
marked indicating that information in the file, or the file,
itself, has been released. In addition to the stamp, the date
of the release and the initials of the analyst who reviewed the
file for release among others, are added. Mr. Kelley noticed
that ``there were quite a series of [pages] that were
transmitted.'' \436\
---------------------------------------------------------------------------
\436\ Id., p. 27.
---------------------------------------------------------------------------
Mr. Kelley learned from Jan George that, instead of putting
the White House request for the file in the file, itself, the
FBI retained the form in separate files.\437\ The file of White
House requests had been retained only for 1 to 2 years, in
response to the growing number of files requested.\438\ No
copies of the White House request forms had heretofore been
retained.
---------------------------------------------------------------------------
\437\ Id.
\438\ Howard M. Shapiro, Report of the FBI General Counsel on the
Dissemination of FBI File Information to the White House, June 14,
1996, at charts tab 16. According to a report written by Shapiro, in
the first year of the Clinton administration, the actual number of
files requested by the White House was 10,197, more than 3 times the
number requested the previous year by the Bush administration. The
average number of files requested by the Clinton administration each
month was 850, more than 3 times the monthly average of Bush
administration requests.
---------------------------------------------------------------------------
Mr. Kelley reported to Director Freeh and General Counsel
Shapiro that the file had been sent to the White House.
Director Freeh instructed Shapiro to undertake a more extensive
investigation into the matter and prepare to release the facts
to the public. The Director asked that the report be made to
the Director and to the Deputy Attorney General. The Director
told Shapiro that the general counsel's office was the best
place to conduct the investigation, because only then could the
Director ensure that the investigation was done ``properly and
. . . swiftly.'' \439\
---------------------------------------------------------------------------
\439\ Deposition of Howard M. Shapiro, July 30, 1996, p. 29.
---------------------------------------------------------------------------
When he was first given the task of investigating the
dissemination of FBI files, Shapiro asked Director Freeh if he
thought that the Office of Professional Responsibility or
Investigations Division should undertake the investigation.
Director Freeh assured Shapiro that he should conduct the
investigation.\440\
---------------------------------------------------------------------------
\440\ Id., p. 29.
---------------------------------------------------------------------------
Generally, the Office of Professional Responsibility would
investigate allegations of wrongdoing within the FBI. The FBI
Office of Professional Responsibility investigates allegations
of criminal or ethical misconduct by employees of the FBI. The
FBI also has an Inspection Division. The Inspection Division is
charged with ensuring that the FBI conducts its business
according to the law and regulation.\441\
---------------------------------------------------------------------------
\441\ Deposition of Thomas A. Kelley, pp. 43-44.
---------------------------------------------------------------------------
In addition, the Department of Justice Inspector General
would be available to investigate the circumstances surrounding
the improper release of Billy Dale's file. The Inspector
General enforces criminal and civil laws, regulations and
ethical standards within the Department of Justice by
investigating individuals and organizations who allegedly are
involved in financial, contractual or criminal misconduct in
Department of Justice programs and operations. Director Freeh
did not believe that the Office of Professional Responsibility
or the Department of Justice Inspector General were capable of
conducting an investigation ``properly'' or ``swiftly.'' He
chose his friend, Howard Shapiro, to conduct the
investigation.\442\
---------------------------------------------------------------------------
\442\ Shapiro deposition, p. 28.
---------------------------------------------------------------------------
2. Howard Shapiro takes over the investigation
On the afternoon that Shapiro was instructed to undertake
an investigation of the events surrounding the specious request
by the White House of an already dismissed employee's FBI
background file. Shapiro watched a video tape of Chairman
Clinger's June 5 press conference on the discovery of the White
House request for Billy Dale's FBI background file as a way to
acquaint himself with the issues.\443\
---------------------------------------------------------------------------
\443\ Shapiro deposition, p. 25.
---------------------------------------------------------------------------
According to Shapiro, Paul Cignoli, chief of the FBI's
Civil Discovery Review Unit, took the initiative to determine
whether or not the background files of other fired Travel
Office employees had been disseminated to the White House.\444\
Shapiro learned that the background file of Brasseux had also
been obtained by the White House. Shapiro advised Director
Freeh of this fact and the Director advised Chairman
Clinger.\445\
---------------------------------------------------------------------------
\444\ Id.
\445\ Id., p. 24.
---------------------------------------------------------------------------
B. FBI Report
On June 14, 1996, the FBI released the Report of the FBI
General Counsel on the Dissemination of FBI File Information to
the White House. The report found that the White House had
sought and received hundreds of FBI background investigations,
``without justification.'' Director of the FBI Louis Freeh
stated that the White House's actions constituted, ``egregious
violations of privacy.'' \446\
---------------------------------------------------------------------------
\446\ Howard M. Shapiro, Report of the FBI General Counsel on the
Dissemination of FBI File Information to the White House, June 14,
1996. Statement of Louis J. Freeh, Director, Federal Bureau of
Investigation.
---------------------------------------------------------------------------
The report also summarized the previous practices that led
to these violations. There was an unusuably large number of
requests for FBI background investigations from the White
House. The FBI report recounts the dramatic increase in
requests from the White House during the years 1993 through
1996.\447\ The rise in number of requests is attributed to
several factors.\448\ At the end of each administration, all
files are removed from the White House for placement in the
Presidential library of the retiring President. Therefore, in
order to reconstruct the files necessary to accommodate access
for career civil servants in the White House, new
administrations must obtain previous reports filed on those
civil servants.
---------------------------------------------------------------------------
\447\ Howard M. Shapiro, Report of the FBI General Counsel on the
Dissemination of FBI File Information to the White House, June 14,
1996. For statistical details of increase in file request from the
Clinton administration, see supra at note 13.
\448\ It is important to note that the Clinton administration
underwent a much hailed 25 percent cut in White House staff. Therefore,
the number of requests for current reports should have lessened the
demand placed on the FBI's White House desk.
---------------------------------------------------------------------------
According to the FBI report, when an administration has a
change in party, the number of files it must order is greater
than when the preceding and succeding parties are of the same
political party. The FBI could provide no evidence that the
change in political party of the administration produced a
greater demand for background files than a change in
administration within the same political party. Particularly
since the request for files at issue were mostly of people in
the political offices where there were very few holdovers,
there should have been few requests for files of White House
Office staff.
Director Freeh criticized the Clinton administration's
abuse of the FBI in the accumulation of FBI background files.
On the occasion of the release of the report, Freeh, promising
to prevent future abuse, said:
The prior system of providing files to the White
House relied on good faith and honor. Unfortunately,
the FBI and I were victimized. I should have known
before last week about a decades old system that
failed. The FBI and I fell victim to my lack of
vigilance, and this failure to exercise proper
management controls also affected the privacy rights of
many persons. I deeply regret those problems and pledge
that they will not occur again on my watch. Like the
report on which I based my comments, I have not reached
any conclusions regarding the motivation of any White
House employee.\449\
---------------------------------------------------------------------------
\449\ Statement of Louis Freeh, Director, Federal Bureau of
Investigation, June 14, 1996.
In response to Freeh's statement that the FBI was
``victimized,'' White House Press Secretary Mike McCurry said,
``I do not understand those statements. There has been no abuse
of the information in the files.'' \450\ This statement came
soon after the White House Chief of Staff, Leon Panetta,
apologized on national television to the ``hundreds of people .
. . whose classified FBI personnel files were obtained by the
Clinton administration and reviewed by an Army security
officer.'' \451\
---------------------------------------------------------------------------
\450\ Tim Weiner; Request for Files ``Victimized'' FBI, It's
Director Says; New York Times, June 15, 1996.
\451\ McGrory, Boston Globe, June 10, 1996.
---------------------------------------------------------------------------
According to the FBI report, several offices in the White
House can request a name check or a background investigation:
the Executive Office of the President, the National Security
Council, the Counsel to the President, or the Office of
Personnel Security. The requests from the Office of Personnel
Security, the office headed by D. Craig Livingstone, were sent
under the name of the White House Counsel. No signature was
affixed to the forms sent by the Office of Personnel
Security.\452\
---------------------------------------------------------------------------
\452\ Howard M. Shapiro, Report of the FBI General Counsel on the
Dissemination of FBI File Information to the White House, June 14,
1996.
---------------------------------------------------------------------------
The report explains that the forms are picked up by an FBI
courier and delivered to the Special Inquiry and General
Background Investigations Unit of the FBI's Personnel Division.
The forms that are the subject of this controversy sought
``copies of previous reports.'' A request for a copy of a
previous report is submitted to the Executive Agencies Sub-Unit
of the Executive Agencies, Personnel and Administrative Support
Unit of the Information Resources Division. That office has a
staff of 36: 18 research analysts; 11 file assistants; and 7
clerks or typists.\453\ Two members of this staff are assigned
to the ``White House Desk.''
---------------------------------------------------------------------------
\453\ Id., p. 16.
---------------------------------------------------------------------------
When the White House Desk receives requests for previous
reports, it obtains the FBI file number of the subject of the
request. Once the file number is found, all background
investigation files are obtained by the White House Desk.
According to Shapiro's report, these files contain all raw data
used to compile summaries and reports. To comply with a request
for previous reports, the analyst first confirms that the files
received are for the person for whom the White House has
requested information. Then, the analyst determines what
information to send to the White House. Memoranda, interviews,
and other documents previously prepared in conjunction with the
file are copied, as are any letters prepared for the previous
transmittal of this information. The original documents that
are copied are listed on a ``pull card,'' and stamped on the
back with the initials of the analyst on the back of the file.
Then, the copies of the documents are sent to the White House
with the original request.\454\
---------------------------------------------------------------------------
\454\ Id., p. 18.
---------------------------------------------------------------------------
Those in the office managing the White House requests for
background files saw a significant rise in the number of
requests. Congresswoman Morella questioned Peggy Jean Larson,
Supervisor of the Executive Agencies Dissemination Unit, Sub-
unit, at the FBI.
Mrs. Morella. Did there come a time in late '93 and
early '94 when you began to receive a large amount of
requests for copies of previous reports?
Ms. Larson. Yes, Ma'am.
Mrs. Morella. In your 32 years of experience with
your unit, can you recall another instance when you
received more than 400 requests for copies of reports
within a 2- to 3-month period?
Ms. Larson. Probably not within a 2- to 3-months
period. It is not unusual that we would have received
that many requests over a longer period of time, but I
can't recall in that short period of time.
Mrs. Morella. Did you report the unusual number of
requests to your supervisor?
Ms. Larson. I made Mr. Thornton aware of the fact
that we did have an increase in the number of request
for prior backgrounds only. I only brought it to his
attention because I was going to have to get some
overtime. I believe it is in the record that one of my
employees, her husband was ill and the other analyst
was rather backed up.
Mrs. Morella. Did he indicate that he would follow up
on this? I wondered what his response was.
Ms. Larson. His response was, did I have enough help,
and how much overtime did I need, and were there any
problems. I said no, that just because of one of them
being out, that the other analyst was in need of
overtime. He said that was fine. But as far as the
nature of the request, there was no problem with
that.\455\
---------------------------------------------------------------------------
\455\ Security of FBI Files hearings, August 1, 1996, pp. 71-72.
In his deposition, Bourke stated that those opening the
requests would not recognize the names of people for whom
---------------------------------------------------------------------------
background investigations had been requested.
Ms. Olson. But anything that comes in with the first
two boxes, previous report or name check, would go on
to the Name Check Unit?
Mr. Bourke. Correct.
Ms. Olson. Regardless of who the individual is?
Mr. Bourke. Correct. I mean, the people who open
those packages wouldn't know James Baker from you, or
me. Well, they would know him from me. They know me
from him.\456\
---------------------------------------------------------------------------
\456\ Bourke deposition, pp. 24-25.
People in that office, however, did recognize the name of James
---------------------------------------------------------------------------
Baker.
Ms. Remington. In late 1993, early 1994, would you
know who James A. Baker was?
Ms. George. I remember when we got the name check in,
Sherry Canter did it.
Ms. Remington. Did she know who James Baker was?
Ms. George. Yes.\457\
---------------------------------------------------------------------------
\457\ George deposition, p. 34.
It is clear that there were FBI officials who recognized the
high number and unusual nature of the requests for background
investigations coming in to the FBI, but they apparently relied
upon the ``good faith and honor'' of the White House.
C. Attorney General Janet Reno Refers the Matter to Independent Counsel
Kenneth W. Starr
Independent Counsel Kenneth Starr wrote to the Attorney
General Janet Reno on June 18, 1996, stating his reservations
about the Independent Counsel conducting the investigation of
the dissemination of FBI files to the White House, because he
felt his mandate lacked the scope.\458\ Mr. Starr had begun a
preliminary inquiry on the first day the Dale file became
public. Mr. Starr had heretofore conducted the investigation
into the White House firing of seven employees of the White
House Travel Office. Mr. Starr sought evidence regarding the
White House retrieval of Dale's file, because it was evidence
that the White House sought damaging information with which to
tarnish Dale's image.
---------------------------------------------------------------------------
\458\ Associated Press, Reno Orders FBI File Probe, June 19, 1996.
---------------------------------------------------------------------------
On the same day that Starr wrote of his concerns to Reno,
Shapiro was notified that he would be tasked with conducting a
complete investigation of both FBI and White House involvement
in this affair.\459\ At 9 a.m. on June 20, 1996, Attorney
General Reno made a request to the U.S. District Court for the
District of Columbia that the issue of the White House
retrieval of FBI background investigations on former Bush and
Reagan administration officials be added to the jurisdiction of
the Independent Counsel.\460\
---------------------------------------------------------------------------
\459\ Shapiro deposition, p. 120. Mr. Shapiro also testified that
he met with the Office of Independent Counsel and received a briefing
on the Independent Counsel's investigation.
\460\ Notification to the court pursuant to 28 U.S.C. Sec. 592
(a)(1) of the initiation of a preliminary investigation and application
to the court pursuant to 28 U.S.C Sec. (c)(1) for the expansion of the
jurisdiction of an Indepenent Counsel; June 21, 1996.
---------------------------------------------------------------------------
In her public statement, Reno said, ``I have concluded that
it would constitute a conflict of interest for the Department
of Justice itself to investigate a matter involving an
interaction between the White House and the FBI, a component of
the Department of Justice. Therefore, I have decided today to
seek an expansion of Mr. Starr's jurisdiction from the court,
so that he may conduct that further investigation.'' \461\
---------------------------------------------------------------------------
\461\ Statement of Attorney General Janet Reno, June 20, 1996.
---------------------------------------------------------------------------
Once a matter is put within the jurisdiction of an
Independent Counsel, it is then specifically outside the
jurisdiction of the FBI. Title 28 of the U.S. Code, in
Sec. 597, states that ``[w]henever a matter is in the
prosecutorial jurisdiction of an independent counsel or has
been accepted by an independent counsel under Sec. 594(e), the
Department of Justice, the Attorney General, and all other
officers and employees of the Department of Justice shall
suspend all investigations and proceedings regarding such
matter . . .'' The FBI, as a bureau within the Department of
Justice, is governed by this provision of the U.S. Code. The
FBI should have suspended its investigation or any involvement
in the FBI files investigation. Mr. Shapiro was clearly without
any authority to investigate this matter.
D. FBI Contacts the White House after Reno's Referral
As of June 20, 1996, the investigation of the release of
FBI files to the White House was referred by Attorney General
Reno to Independent Counsel Kenneth Starr. At that time, the
only entities rightfully investigating the matter were the
Independent Counsel and the Committee on Government Reform and
Oversight.
1. Freeh requests that Chairman Clinger review background
investigations rather than question agents
As part of its investigation, the committee sought to learn
why personnel with largely political backgrounds were placed in
sensitive positions in the White House Office of Personnel
Security. Additional concerns were voiced regarding allegations
of impropriety on the part of Livingstone and Marceca. The
committee heard testimony regarding Livingstone's and Marceca's
suitability for the positions they held.\462\ The committee
initially sought to interview those agents who conducted the
background investigations of Livingstone and Marceca.
---------------------------------------------------------------------------
\462\ Reneghan deposition, pp. 62-65.
---------------------------------------------------------------------------
In a July 10, 1996 letter, Director Freeh wrote that he had
``grave concerns about having line Agents subjected to
congressional inquiry about specific investigations and I
respectfully ask that your committee use other means to obtain
the information needed for your inquiry.'' \463\ Freeh was
concerned that such interviews conducted by a congressional
committee could have a ``chilling effect on the vigor with
which our Agents conduct investigations.'' \464\ In the same
letter, Freeh wrote, ``I respectfully ask that you allow the
FBI to provide [the background files] to you through
knowledgeable managers or that the Committee pursue the
underlying documentation.'' \465\
---------------------------------------------------------------------------
\463\ July 10, 1996 letter from Director Freeh to Chairman Clinger.
\464\ Id.
\465\ Id.
---------------------------------------------------------------------------
Chairman Clinger acceded to Director Freeh's request
regarding the review of Livingstone's and Marceca's background
files. Barbara Olson, chief investigative counsel, arranged to
view the files at FBI headquarters. On July 15, 1996, FBI
Congressional Affairs Director Margaret Owens spoke with Steve
Colloton of the Independent Counsel's Office to ensure that the
Independent Counsel had no objections to making the files
available to the chairman and approved staff of the Committee
on Government Reform and Oversight. Mr. Colloton said the
office of the Independent Counsel had no objections to the
release of the files to the committee.\466\
---------------------------------------------------------------------------
\466\ July 29, 1996 interview of Howard M. Shapiro by the Senate
Committee on the Judiciary.
---------------------------------------------------------------------------
2. Shapiro notifies White House Counsel's Office, whom he referred to
as ``affected parties,'' of potential incrimination Nussbaum's
statement
In preparation for that visit, Owens had the files
retrieved. Paralegals in the Civil Discovery Review Unit
analyzed the files, ostensibly to redact names of those in the
files who had provided information on the condition of
confidentiality. On July 15, 1996, Paul Cignoli, Chief of the
Civil Discovery Review Unit, brought a document in
Livingstone's file to the attention of Tom Kelley.\467\ Mr.
Kelley realized its importance.
---------------------------------------------------------------------------
\467\ Kelley deposition, pp. 85-86.
---------------------------------------------------------------------------
The document was a portion of a memorandum of an interview
with Bernard Nussbaum. Nussbaum, the former Counsel to the
President, was interviewed by Special Agent Sculimbrene in
conjunction with the background investigation of Livingstone.
In the memorandum of that interview, Sculimbrene wrote in March
1993:
Bernard Nussbaum, Counsel to the President, advised
that he has known [Livingstone] for the period of time
that he has been employed in the new administration.
[Livingstone] had come highly recommended to him by
HILLARY CLINTON, who has known his mother for a longer
period of time. [Nussbaum] was confident that the
appointee lives a circumspect life and was not aware of
any illegal drug or alcohol problems. He said that the
appointee will work at the White House on security
matters. He said that in the short period of time that
the appointee has worked for him he has been completely
satisfied with his performance, conduct and
productivity. He recommended the appointee for
continued access in his current capacity.\468\
---------------------------------------------------------------------------
\468\ Special Agent Dennis Sculimbrene, memorandum of interviews
conducted between March 1, 1993 and March 3, 1993. The memorandum
includes descriptions of interviews of Lori Stallings, Supervisory
Personnel Assistant in the White House; Bernard Nussbaum, Counsel to
the President; and William Holden Kennedy, III, Associate Counsel to
the President. Mr. Kennedy sought assurances from Sculimbrene that any
recommendation Kennedy made regarding Livingstone was made ``on the
short period of time that he has known [Livingstone].'' Kennedy also
mentioned to Sculimbrene that Livingstone sought the position of head
of the White House Military Office.
During hearings before the committee on June 26, 1996,
witnesses, including Nussbaum, testified under oath that they
did not know who was responsible for the hiring of Livingstone.
Several members of the committee questioned the veracity of the
witnesses. The exasperation of the committee is evidenced in
the remarks of Congressman Christopher Shays of Connecticut.
When the witnesses could not answer the question of who hired
Livingstone, Shays declared, ``You know what, anybody can tell
you--there's not a person in this room who doesn't know who
hired them for whatever job. It's disingenuous for you guys to
take so long [to answer the question].'' \469\ Those reviewing
the Livingstone file apparently were aware of the controversy
surrounding the question of who hired Livingstone, because
Cignoli informed Kelley immediately of the contents of the
memorandum, and then Kelley immediately notified Shapiro. \470\
---------------------------------------------------------------------------
\469\ Security of FBI Background Files hearings, June 26, 1996, p.
170.
\470\ Interview of Howard Shapiro; U.S. Senate, Committee on the
Judiciary; July 29, 1996, p. 11.
---------------------------------------------------------------------------
On July 15, 1996, Mr. Shapiro obtained a copy of the page
from Livingstone's file once he learned that its contents would
be damaging to the White House.\471\ He showed the copy to FBI
Counsel Larry Parkinson.\472\ He discussed the contents of the
memorandum with Margaret Owens and John Collingwood, both of
the Office of Public and Congressional Affairs. On that same
day, he also spoke with Director Freeh about the controversial
document. Mr. Shapiro read the incriminating sentence, that
Livingstone ``had come highly recommended to him by Hillary
Clinton,'' to Dennis Corrigan, Chief of Staff to the Deputy
Attorney General at the Department of Justice, and informed
Corrigan that he would call the White House with this
information.\473\
---------------------------------------------------------------------------
\471\ Shapiro deposition, pp. 63-64.
\472\ Id.
\473\ Interview of Howard Shapiro; U.S. Senate, Committee on the
Judiciary; July 29, 1996, p. 17.
---------------------------------------------------------------------------
Immediately after speaking with Corrigan, Shapiro
telephoned the White House.\474\ Mr. Shapiro called for Quinn
and learned that he was away from his office. Mr. Shapiro spoke
with Quinn's deputy, Kathleen Wallman.\475\ Ms. Wallman
notified Special Counsel Jane Sherburne. In other words, almost
1 month after the Attorney General referred the matter to the
Independent Counsel, Shapiro relayed information uncovered in
an investigation of the FBI files matter to the White House,
the subject of that investigation. Shapiro recounted his
conversation with the White House in a deposition before the
committee:
---------------------------------------------------------------------------
\474\ Id., p. 12.
\475\ Id., p. 12.
Answer. [I]n preparing the documents for [Chairman
Clinger's committee to review], my staff had identified
a page that I thought would be of interest to them
because it related to a matter that had already been
the subject of substantial controversy. And I read to
her that single sentence of the paragraph summarizing
the interview of Bernard Nussbaum. And she asked me in
what form it appeared. And I described that it was a
page that had three paragraphs relating to interviews
about three different people conducted over a couple-
day period. Again, I read to her that sentence.
Question. Did you tell her that it appeared that it
had been--the interviews had occurred from March 1 to
3, 1993?
Answer. I believe I did. I am not entirely certain
but I think I did. I lost my train of thought for a
second.
I told her--well, she asked me what limitations, if
any, would there be on the committee's use of that
information or further dissemination of it. And I said,
you know, I didn't purport to be an expert or a scholar
on matters like that; that the Privacy Act did not
apply to the Committee as such and that I did not think
there would be legal restrictions, or I was aware of no
legal restrictions and that it would be used at the
discretion of the committee chairman.
Question. And just so the record is clear, the
sentence that you read to her verbatim was the sentence
that [Livingstone] had come highly recommended by
Hillary Clinton?
Answer. Yes.
Question. Who has known [Livingstone's] mother for a
longer period of time?
Answer. Yes.
Question. So you contacted the White House before
anyone on this committee ever saw that document; is
that correct?
Answer. Well, as it turns out. The intent was for it
to be essentially contemporaneous, but yes.\476\
---------------------------------------------------------------------------
\476\ Shapiro deposition, pp. 104-106.
Chairman Clinger was alarmed to learn that the White House,
the target of the ongoing investigations, had reviewed the
documents before he had. In a statement to the public on August
1, 1996, Clinger said, ``No one from the FBI called me to read
me a verbatim account of the Nussbaum notes. Apparently no one
at the FBI read a verbatim account of these notes to anyone at
the Independent Counsel's Office. I did not review the file
personally until July 18, 1996. I would note the White House
and over a dozen present and former staff obtained the
information in Nussbaum's interview prior to my having reviewed
the file.'' \477\ Clinger listed numerous people in the White
House who were notified immediately of the contents of
Livingstone's file.
---------------------------------------------------------------------------
\477\ Statement of William F. Clinger, Jr., chairman, Committee on
Government Reform and Oversight, August 1, 1996.
---------------------------------------------------------------------------
a. Sherburne's telephone tree
Several witnesses have testified before the committee as to
the number of people involved in discussions about the Nussbaum
interview as relayed by Shapiro. After Shapiro notified the
White House on July 15, communications within the White House
and outside the White House ensued immediately.
Once Jane Sherburne was notified of the controversial and
damaging contents of Livingstone's file, realizing the
importance of the damaging information, she made it a point to
spread the word about the file to a large number of people on
that day. Ms. Sherburne recounted the exact manner in which she
contacted people in a deposition before the committee.
Question. Did you discuss [the information relayed by
the FBI] with anyone else in the White House?
Answer. Yes.
Question. Who did you discuss it with?
Answer. Well, I would have discussed it with my team,
with Kathy Wallman, with Evelyn Lieberman, and Harold
Ickes; perhaps others, but that would have been the
core group.
Question. Who on your team----
Answer. And Jack Quinn as well.
Question. Who on your team did you discuss it with?
Answer. Certainly Mark Fabiani, Sally Paxton, and
John Yarowsky. Possibly others, but those would have
been the primary ones.
Question. And did these discussions occur on Tuesday
after you had received your call from the FBI?
Answer. They would have been Tuesday or
Wednesday.\478\
---------------------------------------------------------------------------
\478\ Sherburne deposition, pp. 222-223.
The members of the White House staff that were informed by
Sherburne of the incriminating information allowed them to
prepare answers to questions that were sure to come at the
release of this information. More importantly, perhaps, was the
fact that Sherburne sought out Mrs. Clinton to relay this
---------------------------------------------------------------------------
information.
Question. Do you know if anyone has discussed it with
Mrs. Clinton?
Answer. Yes.
Question. And who is that that discussed it with her?
Answer. I did.
Question. And when did you discuss it with her?
Answer. It would have been Tuesday or Wednesday.
[July 16 or 17, 1996] \479\
---------------------------------------------------------------------------
\479\ Id.
Sherburne continued to list the people she notified of the
---------------------------------------------------------------------------
information contained in Livingstone's file.
Question. Have you had any discussions of this with
anyone outside of the White House other than your
attorney?
Answer. Yes.
Question. And who was that?
Answer. David Cohen, Jim Fitzpatrick, Larry Pedowitz.
Question. Jim Fitzpatrick who is representing Bernie
Nussbaum?
Answer. That's right. And I'm trying to remember if I
spoke to Randy Turk about it. I may have.
Question. Were you aware that Bernie Nussbaum was
going to go into a grand jury appearance shortly after
you had your conversations with his attorney?
Answer. No.\480\
---------------------------------------------------------------------------
\480\ Id.
Ms. Sherburne contacted people in and outside the White
House. Those in the White House contacted by Sherburne included
officials in the White House Counsel's Office and the Chief of
Staff 's Office. Kathleen Wallman is the Deputy Counsel to the
President. Evelyn Lieberman is the Assistant to the President
and Deputy Chief of Staff for White House Operations. Harold
Ickes is the Assistant to the President and Deputy Chief of
Staff. Mark Fabiani, Sally Paxton, and John Yarowsky are
Special Associate Counsels to the President.
Once she had notified officials within the White House,
Sherburne began to contact lawyers for different individuals
who were the subjects of a variety of investigations into the
White House Travel Office and the FBI files controversy.
Sherburne contacted David Cohen, a lawyer with Miller, Cassidy,
LaRocca & Lewin, who represents Craig Livingstone. She
contacted Jim Fitzpatrick, a lawyer with the firm of Arnold and
Porter, and Larry Pedowitz, a lawyer with Watchell, Lipton and
Associates, both of whom represent Bernard Nussbaum. The
subjects of the investigation into the FBI files matter were
privy to the machinations of the investigation, itself.
In a hearing before the committee, members expressed dismay
at the level of closeness between the White House and the FBI.
In his questioning of Shapiro, Congressman Stephen Horn made
clear the nature of his concerns:
Mr. Shapiro, I will tell you what makes me very
curious. You are a very bright young man, you are
obviously very sophisticated, you have conducted a
major prosecution, and suddenly you get some
information, and you pick up the phone and call the
White House. Did you want to curry favor with them . .
.? \481\
---------------------------------------------------------------------------
\481\ Security of FBI Files hearings, August 1, 1996, pp. 93-94.
Shapiro once again denied the impropriety of informing the
White House of information uncovered in an investigation of the
---------------------------------------------------------------------------
White House. Horn continued:
What bothers me is that with Mr. Freeh coming in, we
were assured that the FBI would be independent. Then we
have the Vincent Foster press release bit, and it looks
like the FBI is trying to curry favor with the White
House. I don't think the FBI should curry favor with
anybody. I think they should be independent, call them
as they see them, but they shouldn't be playing one
side where they are giving them all the cues as to what
is in the file, and it bothers me that that has
occurred on several occasions.\482\
---------------------------------------------------------------------------
\482\ Id.
---------------------------------------------------------------------------
2. Shapiro dispatches agents to interrogate Sculimbrene
In addition to notifying the White House about details of
the committee's investigation, Shapiro sent two agents to
interrogate Agent Sculimbrene at his home early on July
16.\483\ Agent Sculimbrene interviewed Bernard Nussbaum in the
course of preparing Livingstone's background investigation, and
recorded Mrs. Clinton's involvement with Mr. Livingstone.
Because some at the White House had questioned Agent
Sculimbrene's information, Shapiro claims that he wanted to
confront Sculimbrene with the discrepancies.\484\ FBI Agents
searched Sculimbrene's work station and papers that day.
---------------------------------------------------------------------------
\483\ Shapiro deposition, pp. 70-71.
\484\ Id.
---------------------------------------------------------------------------
Shapiro and Kelley made the decision to send Duncan
Wainwright, an Assistant Inspector, and Special Agent Jennifer
Esposito to interview Sculimbrene. Inspector Wainwright had
been assigned to work with Shapiro on the FBI files
investigation. Special Agent Esposito, the wife of William J.
Esposito, Deputy Assistant Director of Financial Crimes, Public
Corruption, Civil Rights, and Operational Support, was sent
because, according to Shapiro, she was ``from [Wainwright's]
squad.'' \485\
---------------------------------------------------------------------------
\485\ Id., p. 72.
---------------------------------------------------------------------------
Inspector Wainwright telephoned Agent Sculimbrene to inform
him of Shapiro's intent to send agents to Sculimbrene's home on
that day to interview him. Agents Wainwright and Esposito
arrived at Sculimbrene's home at approximately 11 a.m. on July
16, 1996.
Sculimbrene reviewed the memorandum in question and said
that it appeared to be written by him. Although Sculimbrene
could not remember the precise interview with Nussbaum, he
described the process by which he recorded his interviews.
Sculimbrene performed thousands of interviews in the normal
course of his work at the White House. The memorandum written
by Esposito and Wainwright describes their interview with
Sculimbrene:
SA [Special Agent] Sculimbrene stated that his
interview report should accurately summarize Nussbaum's
comments concerning Livingstone. He noted that he took
pride in his work and sought to make his reports
accurate and complete. SA Sculimbrene noted that is was
his general practice to prepare his interview reports
on the same day that an interview took place. He
followed this practice because it caused him to prepare
his reports while the information was fresh in his
memory.\486\
---------------------------------------------------------------------------
\486\ Supervisory Special Agent Duncan J. Wainwright and Special
Agent Jennifer Esposito, Federal Bureau of Investigation 302 Interview
of Special Agent M. Dennis Sculimbrene, Washington, DC, July 16, 1996.
In addition to recounting the procedures he used to record
interviews, Sculimbrene stated that he did recall a significant
fact regarding Livingstone. Agents Wainwright and Esposito
wrote that, ``SA Sculimbrene does recall being told by
Livingstone that Livingstone's mother was a friend of Hillary
Clinton.'' \487\ Clearly, the information from this interview
buttresses the informaton found in Sculimbrene's original
memorandum of the interview of Nussbaum.
---------------------------------------------------------------------------
\487\ Id.
---------------------------------------------------------------------------
In his statement regarding Shapiro's actions surrounding
the improper contacts with the White House, Chairman Clinger
said:
On July 16 there was another unusual occurrence. Two
senior headquarter FBI agents appeared at the home of
FBI agent Dennis Sculimbrene to talk with him about
this interview of Bernard Nussbaum and ask for his
notes of the interview. According to Mr. Shapiro, this
action was taken at his direction and without any
consultation with the Independent Counsel. Why after
the Attorney General had clearly stated that these
matters would be handled by the Independent Counsel
because they presented a conflict of interest for the
Justice Department and the FBI, did Mr. Shapiro take
this disturbing action? \488\
---------------------------------------------------------------------------
\488\ Statment of William F. Clinger, Jr., chairman, Committee on
Government Reform and Oversight, U.S. House of Representatives, August
1, 1996.
This action perpetuated the feeling among members of the
committee that the FBI was wrongly involved in protecting the
White House. The FBI wasted resources to hide the embarrassing
facts contained in Sculimbrene's memorandum. Some saw the FBI's
tactics as heavy handed. Regarding the choice of agents to
conduct the interview, Congressman Horn engaged in the
---------------------------------------------------------------------------
following colloquy:
Mr. Horn. Who picked the particular agents that
interviewed Mr. Sculimbrene?
Mr. Kelley. I did.
Mr. Horn. How did you happen to pick them?
Mr. Kelley. Actually, the one I picked was Duncan
Wainwright. I picked Duncan Wainwright for several
reasons. First, he used to work for me, and he is very
steady and reliable and intelligent.
Mr. Horn. How about the second agent?
Mr. Kelley. May I finish? The second agent was picked
by Duncan Wainwright.
Mr. Horn. Did one of the agents have a spouse who
worked for the FBI?
Mr. Kelley. Yes.
Mr. Horn. And what did that spouse do?
Mr. Kelley. The spouse is the assistant director of
the Criminal Investigative Division.
Mr. Horn. A fairly high position in the FBI.
Mr. Kelley. Yes, it is.
Mr. Horn. Now, if somebody with that relationship
showed up on my doorstep, and I am an FBI special
agent, as Mr. Sculimbrene was, I would worry that
somebody is after me, wouldn't you? Don't you think
that is intimidation? \489\
---------------------------------------------------------------------------
\489\ Security of FBI Files hearings, August 1,1996, pp. 91-92.
Members of the committee were concerned with the mere fact that
the interview took place, and that it was done after the entire
investigation had been turned over to the Independent Counsel.
The committee was equally concerned about the way the interview
was conducted. Agents telephoned Sculimbrene, told him they
were on their way, and soon arrived at his home to conduct the
interview.
3. Shapiro made his own assessment that the matter was not within
Independent Counsel Starr's jurisdiction
The initial discovery of the information in the Nussbaum
interview resulted from Shapiro's staff reviewing files for
release to this committee. The files that were reviewed were
those of the two figures central to the FBI files investigation
being conducted by the committee and the Independent Counsel.
The committee's review came at the suggestion of Director
Freeh, who was well aware of both the committee's investigation
of the FBI files matter and that these files were requested in
that matter. Nonetheless, despite overwhelming evidence to the
contrary, Shapiro claimed not to know the purpose of the
committee's request for these files.
In an appearance before the committee, Shapiro testified
that he did not believe that the contents of the Nussbaum
interview were related to the FBI files investigation. Chairman
Clinger asked Shapiro if he knew the Attorney General had
referred the ``filegate'' matter to the Independent Counsel in
response to concerns that any such investigation might provide
a conflict of interest for the FBI. Shapiro responded that he
was aware of the referral. However, Shapiro testified that he
``did not think that this information specifically was at the
time part of the Independent Counsel's investigation.'' \490\
Steven Schiff, vice chairman of the committee, attempted to
clarify the matter. Responding to Schiff 's question about
whether he thought ``that Mr. Livingstone's hiring was related
to the matters to be investigated by the Independent Counsel,''
Shapiro replied,
---------------------------------------------------------------------------
\490\ Security of FBI Files hearings, August 1, 1996, p. 46.
My misunderstanding, if I had one, was whether the
question of how Craig Livingstone came to be hired was
a matter within the scope of the criminal investigation
of the Independent Counsel's Office looking into what I
understood to be the criminal investigation, was the
request for and acquisition of the FBI files.\491\
---------------------------------------------------------------------------
\491\ Id., p. 82.
The qualifications of Livingstone for a position in the White
House Office of Personnel Security and whether he was placed
there for political purposes is central to any investigation of
the White House's improper retrieval of FBI files. According to
Shapiro, he did not see the relevance of how Livingstone got
his job to that investigation. Members of the committee did not
believe that Shapiro could see the need to relay this
information to the White House, yet not see the bearing it had
on the investigations being conducted. In a hearing before the
---------------------------------------------------------------------------
committee, Congressman Burton said:
Let me get this straight here. The people you did not
advise about this were the Independent Counsel, the
Senate Judiciary Committee, or the members of this
committee before you advised the White House Counsel,
the Deputy Attorney General's office, who has a lot of
liaison and connection with the White House. It's
widely known that since Mr. Hubbell left the Justice
Department, Ms. Gorelick, the Deputy AG, has the most
intimate relationship with the White House, both
political and otherwise. If you step back and look at
the results of your decisions to notify the White House
and the Justice Department, the Democrats who needed to
perform damage control were made aware but the
Republicans and the Independent Counsel investigating
the matter knew much later. So we gave the people who
were trying to defend themselves a heads up first.\492\
---------------------------------------------------------------------------
\492\ Id., pp. 157-158.
Many members of the committee were angered over Shapiro's
statements that the hiring of Livingstone was not related to
the White House retrieval of FBI background files.
Soon after Shapiro notified the White House about the
contents in the memorandum of Mr. Nussbaum's interview, private
lawyers were notified about that information. It was reported
that Mr. Nussbaum was to testify before the Independent Counsel
shortly after learning of this information. Showing concern for
this series of events, Congressman Gilman posed the following
question to Shapiro at the committee's hearing.
In your opinion, how should the Department of Justice
react if a representative of the FBI, on his own,
shares FBI information with an outside party that bears
on the party's possible testimony or other derogatory
information or leads that would assist that party in
thwarting the government's inquiry? How do you think
the Justice Department should react to that kind of
statement? \493\
---------------------------------------------------------------------------
\493\ Id., p. 113.
Shapiro responded that ``if the Department thinks that someone
at the FBI is interfering with an investigation, it is a matter
they should take very seriously.'' \494\ Later in that hearing,
Congressman Gilman asked Shapiro, ``[W]asn't there an ongoing
grand jury inquiry on the files and on Livingstone at the time
you made your telephone calls?'' \495\ Shapiro replied,
``There--well, I'm obviously not fully aware of what inquiries
there are. I understand that the Independent Counsel's office
was conducting and is conducting a grand jury investigation
into what--into the request for and acquisition of FBI files by
the White House.'' \496\ The fact that Shapiro, a former
prosecutor with the U.S. attorney's office, took actions that
may have interfered with an ongoing investigation is simply
unacceptable for the FBI's top lawyer.
---------------------------------------------------------------------------
\494\ Id.
\495\ Security of FBI Files hearings, p. 114.
\496\ Id., p. 115.
---------------------------------------------------------------------------
4. Nussbaum's criminal referral
Shapiro knew the clear significance of the information in
the FBI background file, which contained contemporaneous notes
of an interview of Nussbaum. Nussbaum relayed information about
Livingstone to FBI Agent Sculimbrene in March 1993, at a time
when Nussbaum had no reason to be dishonest. In addition, Agent
Sculimbrene had no reason to attribute any significance to
Nussbaum's comments.
Shapiro knew of the controversy surrounding the hiring of
Craig Livingstone, which developed in June 1996. In his
deposition before the Committee on Government Reform and
Oversight, Shapiro first hypothesized about why his staff would
have alerted him to the contents of the memorandum in question.
Shapiro said:
[I]t was brought to my attention because it referred
to a matter which had already been the subject of much
public controversy and many articles in the newspapers
and on--stories on television about the allegation that
there was a connection between Hillary Clinton and the
hiring of Craig Livingstone; more specifically, that
Hillary Clinton was a friend of Craig Livingstone's
mother and had recommended for the job.\497\
---------------------------------------------------------------------------
\497\ Shapiro deposition, p. 59.
In the same interview, Shapiro gave his reason for alerting the
White House to this information. He said, ``Knowing that was a
matter which had already been a matter of considerable public
controversy . . . . I decided that it was appropriate to advise
the White House.'' \498\
---------------------------------------------------------------------------
\498\ Id.
---------------------------------------------------------------------------
At the June 26, 1996 hearing before the Committee on
Government Reform and Oversight, ``Security of FBI Background
Files,'' none of the witnesses, including Craig Livingstone,
could remember who hired Craig Livingstone. In that hearing,
Chairman Clinger asked Bernard Nussbaum, Counsel to the
President, ``Do you know who hired Craig Livingstone?'' \499\
Nussbaum replied, ``I don't know who brought Mr. Livingstone
into the White House.'' Later, following Kennedy's statement
that he ``never discussed Mr. Livingstone with Mrs. Clinton in
any way, shape or form,'' Nussbaum said, ``Nor did I.'' \500\
Several other witnesses denied knowing who hired Livingstone.
---------------------------------------------------------------------------
\499\ Security of FBI Files hearings, June 26, 1996, p. 57.
\500\ Id.
---------------------------------------------------------------------------
At that hearing, Nussbaum was under oath. He swore to tell
the truth. He was the White House Counsel while Livingstone was
Director of White House Security. Livingstone worked for
Nussbaum. When he professed not to know who hired Craig
Livingstone, committee members were perplexed. When Chairman
Clinger discovered a contemporaneous memorandum written by an
FBI agent that shed some light on who hired Livingstone, he was
alarmed. Chairman Clinger was disappointed to learn that the
document quoted Nussbaum as saying that Livingstone ``had come
highly recommended to him by Hillary Clinton.'' \501\
Accordingly, this information ``calls into question Mr.
Nussbaum's June 26, 1996 statements made under oath before the
Government Reform and Oversight Committee.''
---------------------------------------------------------------------------
\501\ Sculimbrene memo contained in the FBI background file of
Craig Livingstone.
---------------------------------------------------------------------------
Upon discovering this information, Chairman Clinger
believed that it warranted the attention of every Member of the
House of Representatives and the American people. He stood on
the floor of the House chamber and described the events
surrounding the Sculimbrene memorandum. Calling this ``a very
serious issue,'' Chairman Clinger concluded his statement,
saying, ``This is a matter I will refer to the U.S. Attorney
for the District of Columbia. Because Attorney General Reno has
designated Independent Counsel Kenneth Starr to investigate
potential criminal wrongdoing in the White House Travel Office
and FBI Files matters, I am simultaneously forwarding this
matter to Judge Starr's attention.'' \502\
---------------------------------------------------------------------------
\502\ Congressional Record, July 25, 1996, pp. H8520-H8521
---------------------------------------------------------------------------
On July 30, 1996, the matter of Nussbaum's statements to
the FBI and before the Committee on Government Reform and
Oversight was referred to the Office of the Independent Counsel
and the U.S. attorney for the District of Columbia. Chairman
Clinger and other members of the Committee on Government Reform
and Oversight wrote to Independent Counsel Kenneth Starr and
U.S. Attorney Eric H. Holder, Jr., to refer the matter to their
offices.\503\
---------------------------------------------------------------------------
\503\ Letter to the Honorable Kenneth W. Starr, Independent
Counsel, from Chairman Clinger and members of the Committee on
Government Reform and Oversight; July 30, 1996.
---------------------------------------------------------------------------
5. Shapiro edits letter for White House Counsel that is critical of
Chairman Clinger
Upon the announcement that Chairman Clinger was making a
criminal referral of Bernard Nussbaum, Quinn called Shapiro to
request his assistance in writing a letter to Director Freeh.
Shapiro testified about this matter in his deposition:
Ms. Olson. The day of Chairman Clinger's referral or
the day of Chairman Clinger's Floor statement about the
statements by Mr. Nussbaum and the statement that he
had read in the file, did you have any conversations
with the White House?
Mr. Shapiro. Yes, I was called that day by Jack Quinn
and Kathleen Wallman--this is prior to the chairman's
Floor speech--advised by them that they had learned
from press, who I think they told me had a copy of his
speech, that he was going to be making a Floor speech,
and they told me that they were writing a letter.
I think what they said is, ``The White House is
writing a letter to the FBI director,'' and they wanted
to ask me a couple questions about it, primarily was
there anything in the tone of it that we would find
offensive that would--that they would sort of be
unaware, would hit somebody the wrong way at the FBI,
that they would unintentionally offend somebody about.
Ms. Olson. You mean by the tone of--the tone of the
letter?
Mr. Shapiro. The letter. They weren't asking me for
my opinion on Mr. Clinger's speech. And also whether I
had an opinion on who that letter should come from,
from the White House.
Ms. Olson. And so they faxed you a copy of the
letter?
Mr. Shapiro. No. They read me some language. I told
them that as to most of it, I had no opinion and didn't
think it was appropriate for me to comment, which is
not to say I had no opinion, but didn't think it
appropriate for me to comment.
They highlighted one sentence that was in one draft
one way and one in the other, and I concurred with
their apparent decision that they already were telling
me that in the second statement would be taken as less
of an accusation against the FBI, and I said--and as to
the question about who was appropriate to come from, I
asked Jack Quinn, was he suggesting--I believe he asked
me, did I think it more appropriate that it come from
Leon Panetta? and I said, ``If your question is, are
you a sufficiently high level Government official to
write to the director of the FBI? I think you shouldn't
worry about that.''
Ms. Olson. And what was the one sentence?
Mr. Shapiro. Let me look at the letter as it was
sent, and I might be able to tell you.
In the letter as sent, which we received some time
later that evening--first time I had actually seen it--
it says--after the first three paragraphs, it says:
That is why we are troubled, as we know you must be, by
the implication that an FBI background investigation
might include a false report.\504\
---------------------------------------------------------------------------
\504\ Shapiro deposition, p. 150.
In the letter that finally went to Freeh, and was released to
---------------------------------------------------------------------------
the public, Quinn wrote:
It is equally troubling that a Member of Congress can
publicly reveal confidential information, whether for
partisan purposes or otherwise. It should not escape
notice that this is done at a time when Members of
Congress have expressed worry that employees of the
executive branch might have sought out confidential FBI
information about certain individuals and planned to
somehow use it publicly. While that charge has never
been established against anyone in the executive
branch, we now witness the same objectionable behavior
by the very people who professed to be the guardians of
privacy.\505\
---------------------------------------------------------------------------
\505\ Letter from White House Counsel Jack Quinn to FBI Director
Louis Freeh, July 25, 1996.
The general counsel of the FBI edited a letter for the White
House that was harshly critical of the chairman of the
Committee on Government Reform and Oversight, who was
performing his oversight duties. Shapiro's actions raise
questions about the independence of the FBI.
Members of the committee were particularly angered by the
participation of the FBI in editing a letter critical of the
chairman of a congressional committee. Congresswoman Ros-
Lehtinen confronted Shapiro about his participation in the
drafting of the letter from Quinn to Director Freeh. When
Shapiro was trying to belittle his cooperation with the White
House regarding the letter, Ros-Lehtinen said:
Based on your testimony, you said that you conversed
with this gentleman, talked about who the letter should
go to, talked about the tone, and I would say that you
had a very direct hand in the drafting of this
document.\506\
---------------------------------------------------------------------------
\506\ Security of FBI Files hearings, August 1, 1996, p. 137.
Congressman Souder told Shapiro he was wrong in editing the
---------------------------------------------------------------------------
letter. He said:
You said you helped edit a letter for the White House
Counsel which attacked both our Chairman and your own
FBI agents. Now you say it wasn't editing, you were
consulted. Almost any definition of ``editing,'' you
had the opportunity to edit. You say you made changes.
By most definitions, that is editing, and it was a
political letter which you should have withdrawn
from.\507\
---------------------------------------------------------------------------
\507\ Security of FBI Files hearings, August 1, 1996, pp. 176-177.
---------------------------------------------------------------------------
VII. Politicization of the FBI
The FBI serves as the principal investigative arm of the
Department of Justice and as such, is charged with gathering
and reporting facts, locating witnesses, and compiling evidence
in cases involving Federal jurisdiction. The FBI investigates
all violations of Federal law except those that have been
assigned by legislative enactment or otherwise to another
Federal agency.
In response to the politicization of the FBI during the
Nixon administration, the Congress passed a law giving the
Director of the FBI a fixed term. Public Law 90-351, provided
that:
(b) Effective with respect to any individual
appointment by the President, by and with the advice
and consent of the Senate, after June 1, 1973, the term
of service of the Director of the Federal Bureau of
Investigation shall be ten years. A Director may not
serve more than one ten-year term.\508\
---------------------------------------------------------------------------
\508\ Pub.L. 90-351, Title VI, Sec. 1101, June 19, 1968, 82 Stat.
236, as amended by Pub. L. 94-503, Title II, Sec. 203, October 15,
1976, 90 Stat. 2427.
On the Floor of the Senate, Senator Robert C. Byrd spoke in
support of limiting the term of the Director of the FBI and
about the importance of FBI independence. Senator Byrd said,
``This amendment would aid in insulating the FBI Director
against politically motivated manipulation from the executive
branch by giving the office a tenure of 10 years.'' Senator
---------------------------------------------------------------------------
Byrd reasoned that:
A 10-year term is desirable because it would
generally overlap the tenure of a two-term President
and would eliminate many of the pressures that could be
brought to bear on the Director if he were to be
reappointed every 4 years. In this way, the Director
can be more effectively insulated from political
pressures liable to be placed on him by a President and
he will not be considered a politically oriented member
of the President's `team.' ''
After Watergate, the Congress was wary of the President's
political influence over the Nation's police force. It sought a
way to remove the Director of the FBI and the FBI, itself, from
political involvement.
When Louis Freeh was appointed by President Clinton in
1993, he immediately took steps to change the internal
structure of the FBI. He eliminated two associate deputy
directors and four dozen management positions. Perhaps his most
controversial move involved the appointment of his closest
aides. An article in the Los Angeles Times reported about some
dissension in the FBI ranks about Freeh's appointments: \509\
---------------------------------------------------------------------------
\509\ Ronald J. Ostrow, Freeh Reign He's Eliminated Red Tape and
Senior Posts, Given Agents More Power and Fewer Desk Jobs, Promoted
International Cooperation and His Friends--In Just 17 Months, Louis
Freeh has Made a Mark on the FBI as Indelible as J. Edgar Hoover's, the
Los Angeles Times Magazine, Sunday, February 5, 1995.
Some of the controversy emanates from Freeh's
appointment of a triumvirate of federal prosecutors he
knew when he served in the U.S. attorney's office in
Manhattan. He named Robert B. Buckham, 43, chief of
staff; Howard M. Shapiro, 34, is the FBI's first
general counsel, and Buckham's brother, James R., 32,
heads up the new office for ending interagency turf
fights. ``He may be relying too heavily on the views of
a certain group of friends, including their estimates
of other people in the organization, creating a
clique,'' worries a former senior Justice Department
official.\510\
---------------------------------------------------------------------------
\510\ Id.
Howard Shapiro met Director Freeh right out of Yale Law
School when he first began his clerkship for Judge Leval and
Director Freeh was appearing before the Judge as an assistant
U.S. attorney in a major case in his career known as the
``pizza connection'' case.\511\ Mr. Shapiro testified that the
``unusually close relationship'' they developed during the
course of this case led to Freeh requesting he come to work at
the U.S. attorney's office in New York. Mr. Shapiro testified
that he believed that Director Freeh ``assisted him in being
selected for the job.'' \512\
---------------------------------------------------------------------------
\511\ Deposition of Howard Shapiro, 7/30/96, p. 10.
\512\ Id., p. 11.
---------------------------------------------------------------------------
Director Freeh again tapped Mr. Shapiro to join him on a
``special assignment by the Attorney General'' to investigate
and prosecute the December 1989 tragic mail bombing case that
killed Judge Robert Vance. They worked closely throughout the
course of this case until Direct Freeh was sworn in as a
Federal district court judge. Mr. Shapiro left the U.S.
attorney's office and accepted a teaching position at Cornell
Law School but managed to stay in contact with then-Judge
Freeh.
When Director Freeh was first asked by President Clinton if
he would accept the position of Director of the FBI in the
summer of 1993, he sought the advice of Howard Shapiro.\513\
Mr. Shapiro testified that he ``urged him to take the job and
encouraged him to do so.'' \514\ In return, Director Freeh told
Shapiro that he ``expected'' him to ``come down and work for
him'' at the FBI to which Shapiro agreed and took leave from
his teaching position at Cornell. Because Director Freeh had
not yet formally created the office of the general counsel and
first had to move out the current FBI career legal counsel,
Shapiro began working for Director Freeh as his ``special
counsel'' for 2 to 3 months.\515\
---------------------------------------------------------------------------
\513\ Id., p. 12.
\514\ Id.
\515\ Id., p. 13. Mr. Shapiro described this as a ``somewhat
delicate personnel matter'' that Director Freeh had to move out the
current Assistant Director who served as the Director of the Office of
Legal Counsel Division before Shapiro could ``replace'' him. Then
Assistant Director Joe Davis thereafter retired from the FBI after a
long and distinguished career with the Bureau.
---------------------------------------------------------------------------
After the retirement of the previous legal counsel, Shapiro
began to ``recreate'' the Office of the General Counsel and
immediately brought two deputies that work with his at the U.S.
attorney's office. Mr. Shapiro testified that he and Director
Freeh believed these outside attorneys ``could improve the
overall quality of the office'' since only career FBI agents
had been allowed in these positions before. Mr. Shapiro,
deriding their experience, stated that in the past the Bureau
tended to promote individuals ``based on their prediction of
who would be the best agent.''\516\ Mr. Shapiro immediately
stopped this practice however, and filled the office with
former colleagues of his and the Director's.
---------------------------------------------------------------------------
\516\ Id., p. 15.
---------------------------------------------------------------------------
As revelations of numerous contacts between FBI General
Counsel Shapiro and the White House materialized, concerns
about the politicization of the FBI have resurfaced. We learned
that Shapiro had his own White House pass allowing him to come
and go as he pleased in the White House complex.\517\ Director
Freeh's appointment of close friends rather than ``the best
agent'' is at the center of this problem. No longer does the
top lawyer for the FBI have an allegiance to the law
enforcement agency whose laws he has taken an oath to uphold.
Instead the relationships created within the Office of the
General Counsel created allegiances to the Director and his
allegiances to the White House that gave him his appointment.
---------------------------------------------------------------------------
\517\ Director Freeh sent a letter on May 25, 1994 to Craig
Livingstone requesting that Shapiro receive a permanent OGA White House
pass. Director Freeh cited the numerous meetings Shapiro attends at the
White House complex: ``no fewer than 14 meetings within the White House
gates, including a meeting with the President'' over the past month. We
believe that no other FBI legal advisor or general counsel has required
such access to the White House complex in the past.
---------------------------------------------------------------------------
Shapiro has protested any political savvy, testifying that
he has had only non-political, career, Department of Justice
appointments,\518\ and that he would therefore not have any
political issues in mind when in contact with the White
House.\519\ Given the great attention paid by the public, the
media and the Congress to past indiscretions by the FBI in its
contacts with the White House, Shapiro should have been ever
aware of the political consequences of his actions. Instead of
protestations that he was not ``competent'' to commit a
political act,\520\ Shapiro owed his agency and the public to
be especially vigilant in his conduct, in matters involving the
White House, an inherently political entity. The years that
Shapiro spent in law enforcement deny him such flimsy excuses.
---------------------------------------------------------------------------
\518\ This is not a credible statement, given that Shapiro was a
professor at Cornell University before taking a leave of absence to
work for his mentor and good friend, Louis Freeh. Shapiro is an SES
employee appointed by Director Freeh as a result of his appointment by
the Clinton White House.
\519\ Shapiro deposition, p. 125.
\520\ Security of the FBI Files, hearing, August 1, 1996, p. 33.
---------------------------------------------------------------------------
A. General Counsel of the FBI Hand Delivers Gary Aldrich Book to White
House Counsel
As a condition of employment at the FBI, agents must sign a
contract by which they agree to obtain clearance before
publishing information which they gain during their duties at
the FBI. When an agent or former agent seeks to publish
information gained while in the employ of the FBI, he must
first submit the information he seeks to publish to the FBI for
its review. Offices within the FBI who are affected by the
written materials are asked to review the contents and decide
whether its publication would jeopardize the functions of the
FBI. While the review is to be completed in 30 days,\521\
records supplied to the committee by the Department of Justice
show that the process of review by the FBI took almost 6
months.\522\
---------------------------------------------------------------------------
\521\ Letter to Mr. Jay Stephens, attorney for Agent Gary Aldrich;
January 4, 1996. OPCA maintains liaison with the authors of the
submitted manuscripts--and formally advises them, within 30 working
days, whether, or under what conditions, approval for publication is
granted (as per responses from the substantive agencies).
\522\ Letter to Howard Shapiro, general counsel of the FBI, from
Lisa Kate Osofsky, deputy general counsel of the FBI, July 31, 1996.
---------------------------------------------------------------------------
Former FBI agent Gary Aldrich had written a book about his
service in the FBI and in the White House. He submitted a draft
of his book to the FBI for its review. Once Shapiro had a copy
of Aldrich's manuscript, he waited less than a month to hand
deliver a copy to White House Counsel to the President, Jack
Quinn.\523\ To date, the White House has refused to reveal what
it did with the book prior to its publication.
---------------------------------------------------------------------------
\523\ Shapiro deposition, July 30, 1996, p. 82.
---------------------------------------------------------------------------
1. Justifications
Shapiro's justification for his ``heads up'' to the White
House regarding Bernard Nussbaum'' 1993 interview that linked
the First Lady to Craig Livingstone's hiring, was that the
White House was an ``affected party.'' \524\ He did not, either
in deposition or hearing testimony, ever indicate the Federal
Bureau of Investigation rule or policy he was adhering to by
his conduct. Thus, the true purpose of his action has not fully
been explained. Similarly, while inquiring into the reason for
his White House delivery of the Aldrich book, Shapiro was asked
in committee deposition if he ``communicated the substance of
[the Aldrich] book [to the White House] because they were an
interested party?'' \525\ Shapiro replied, ``Yep.'' But, in
hearings before the committee 2 days later, he gave a more
rehearsed response for the media.
---------------------------------------------------------------------------
\524\ Letter from Shapiro to Chairman Clinger, July 19, 1996.
\525\ Shapiro deposition, p. 88.
---------------------------------------------------------------------------
In his opening statement before the committee hearings,
Shapiro gave a more lengthy explanation for his distribution of
the Aldrich manuscript.
The first draft of the book was replete with
sensitive internal White House information that went to
their internal procedures and went to White House
security matters, as well as to the--directly to the
result of his conduct of his official business. I
delivered a copy of that to the White House Counsel's
Office because, as I in fact somewhat presciently
advised them, I could not ensure, the FBI could not
ensure that Mr. Aldrich would not go forward and
publish that book prior to receiving clearance, and in
fact that is what he did.\526\
---------------------------------------------------------------------------
\526\ Security of FBI Files hearings, August 1, 1996, p. 33.
Congressman Burton attempted to obtain a more detailed
explanation from Shapiro about why he delivered the book to the
---------------------------------------------------------------------------
White House. Congressman Burton asked:
Question. What were they doing [with the book]?''
Answer. I knew that Mr. Aldrich could publish that
document, as he did, without waiting for our approval,
without--without concurring with our objections, and
that they should know and have it in their hands before
internal White House procedures were disseminated to
the world.\527\
---------------------------------------------------------------------------
\527\ Id., pp. 58-59
First, it is implausible that, in February of this year,
Shapiro anticipated that Aldrich would consider publishing his
book without FBI concurrence, when Aldrich had adhered to FBI
policies in submitting the book for review. Furthermore, it
strains credulity to believe that Shapiro delivered the book to
Quinn out of concern about White House security. Why would
Shapiro go directly to the White House Counsel's Office, which
has become a public relations/political entity for the
President, rather than the U.S. Secret Service, whose central
mission is to protect the security of the President and the
White House complex?
In addition to the ``security review'' being conducted by
the White House, the FBI was also conducting a review in
accordance with the employment agreement signed by Aldrich upon
his employment. Records obtained by the committee show that the
FBI had extensive consultation with Jay Stephens, former U.S.
attorney, and counsel for Aldrich, regarding the prepublication
review of the manuscript by the FBI.\528\ Indeed, many of the
concerns that the FBI had were allayed in this process.
Stephens, on three separate occasions, sent to the FBI
revisions in the manuscript that were made at their request.
---------------------------------------------------------------------------
\528\ Letter to Howard Shapiro, general counsel of the FBI, from
Lisa Kate Osofsky, deputy general counsel of the FBI, July 31, 1996.
---------------------------------------------------------------------------
Shapiro's explanation regarding the White House's security
concerns simply does not survive scrutiny. We know that the
book was delivered in February, less than 30 days after the
FBI's receipt of the manuscript, and the initial meetings
between the Bureau and Stephens on the editing process. Why did
Shapiro see the urgent need to provide the pre-publication
manuscript to the White House, without the permission of the
author or publisher, months before its release?
2. Hearing testimony
To obtain a better understanding of Shapiro's motive for
taking the Aldrich book to the White House, Congressman Shays
asked Shapiro to define ``interested party.'' In response,
Shapiro gave another, detailed reason for sending the book to
the White House:
[T]he first draft of his book contained numerous
lengthy passages about internal White House procedures,
White House security matters and the text of interviews
of White House people. Those--I told them that I could
not ensure and ultimately was unable to ensure that Mr.
Aldrich would comply with our requirements as to what
material could be published and what material could
not, that it could be published any day without prior
notice to us, as it was, and that I thought given how
much it divulged about White House processes, they
needed to see it.\529\
---------------------------------------------------------------------------
\529\ Security of FBI Files hearings, p. 125.
What Shapiro fails to acknowledge is that he delivered the book
in February, well before any fears could have developed that
Aldrich would publish without complete FBI approval.
Shays then attempted to pinpoint the reason for taking the
book to the White House, rather than other agencies.
Mr. Shays. Wasn't it replete with other information
that would affect other people? Why did you decide it
should only go to the White House?''
Mr. Shapiro. Who else do you have in mind, sir?
Mr. Shays. Any other interested party?
Mr. Shapiro. I'm not sure--Mr. Aldrich wrote a book
about his time at the White House, sir, and it was
about the White House and the White House and the White
House procedures.
Mr. Shays. What about all the people that were
mentioned, weren't they interested parties?
* * * * *
Mr. Shays. How about the Secret Service, did you
notify the Secret Service? I would like an answer.\530\
---------------------------------------------------------------------------
\530\ Security of FBI Files hearings, pp. 125-126.
Shapiro did not answer the question regarding other agencies
mentioned in the Aldrich book, but not made aware of the
contents of the book before it was published. Moreover, the
Secret Service is responsible for the security of the White
House. Yet the Secret Service received no notifications or
information regarding the Aldrich book from either the FBI or
the White House Counsel's Office.
B. Distribution of Book Within the White House
The first people in the White House to see the copy of the
Aldrich book were Jack Quinn and Kathleen Wallman. Apparently,
the book was divided up among several staff members for their
review.
1. Cheryl Mills' review
Cheryl Mills, Associate Counsel to the President, was given
a copy of the Aldrich book to review. She was asked about her
knowledge of the book in a deposition before this committee.
Question. Were you aware that Howard Shapiro had
given Mr. Quinn a copy of Gary Aldrich's book?
Answer. Yes.
Question. Did you review a copy of that book?
Answer. Portions of it.
Question. Were you tasked to review that by Mr.
Quinn?
* * * * *
Answer. I think ``tasking'' is a bit strong, but
maybe that is always strong, whenever you are referring
to me.
With regard to the portions of the book that I
reviewed, the question that I was looking at was
whether or not there were disclosures of nonpublic or
confidential information within it, and also whether or
not--what the impact of these types of disclosures
would be on the security personnel process with respect
to people's willingness to be candid and open and
forthright with regard to the FBI background process;
and to the extent that it did have any implications for
that process, whether or not these implications were
sufficient to be debilitative to people's desire to
enter government and serve as a public servant.
* * * * *
Question. Do you know if anyone else in the Counsel's
office was given portions of the book to read or given
the book to read?
Answer. I was only given a portion, so I am sure that
others were also probably reviewing with regard to
disclosures of nonpublic or confidential information as
well as whether or not such disclosures have an impact
on the integrity of and the ability of people to
provide candid and open and honest information to the
FBI in the process of securing or being reviewed for
government positions.\531\
---------------------------------------------------------------------------
\531\ Mills deposition, pp. 70-80.
Mills could give no additional information about who reviewed
the book and why. But Mills is not the only White House lawyer
questioned by the committee who was assigned to review the
book.
2. Christopher Cerf 's review
Cerf was asked about his knowledge of the Aldrich book at a
deposition before the committee. He told the committee that he
had responsibilities for reviewing the manuscript similar to
those of Mills.
Question. Do you recall the circumstances of your
learning about [the Aldrich book], whether it was in a
meeting, a counsel office meeting, or outside of that?
Answer. It was in the context of my duties in the
Counsel's office.
Question. Were you asked to review portions of the
book or a portion of the book?
Answer. Yes.
Question. And who asked you to do that?
Answer. It was either Kathi Whalen or--it probably
was Kathi Whalen.
Question. And did she explain the reason why she was
asking you to review the book?
* * * * *
Answer. While I am not inclined to talk about the
process that led to the deliberations on this issue,
here is what I feel very comfortable telling you, and
that is that I and others were asked to review portions
of the book and with an eye towards whether or not
there was information that would compromise security in
the White House. That was my particular mission. We
reported back up the line on this and, to the best of
my knowledge, the outcome was that the White House did
not take a position one way or the other on what the
FBI should do with this matter.\532\
---------------------------------------------------------------------------
\532\ Cerf deposition, pp. 89-95.
The committee has yet to determine the purpose of the White
House Counsels' review of Aldrich's book, though not for lack
of attempts. The committee subpoenaed all notes and memoranda
from the White House related to the matter. However, Special
Counsel Jane Sherburne reported that those documents were not
``maintained.'' \533\ Why is the White House Counsel's Office
``not maintaining'' notes? Why were no memoranda created on a
project that ostensibly affected White House security? Were
there memoranda that were destroyed?
---------------------------------------------------------------------------
\533\ Letter from Sherburne to committee Chief Investigative
Counsel Barbara Olson, September 10, 1996.
---------------------------------------------------------------------------
Additionally, why did the review of pre-publication
manuscripts fall within the purview of White House counsel
``duties''? Was this not more suitably a matter for a security
related agency? The White House's lack of response to committee
requests continue to be of great concern.
The committee learned on September 18 from the FBI that
they refused to accept back from White House Counsel Jack Quinn
a copy of Gary Aldrich's book Unlimited Access, given to Mr.
Quinn by FBI General Counsel Shapiro. The FBI refused to accept
the book saying, ``Because this is a document in the possession
of the White House which you have described as `responsive' to
a congressional subpoena, we believe it would be inappropriate
for the FBI to become involved in this matter.'' \534\ The FBI
and the Justice Department are under subpoena for these
documents. Why is the White House playing hot potato with Gary
Aldrich's book? It is amazing, but not surprising, that the
White House continues to withold documents relevant to this
committee's investigation. Actions such as these increase the
skepticism toward this administration. Mr. Quinn should explain
his actions in trying to avoid responding to the committee's
subpoena.
---------------------------------------------------------------------------
\534\ Letter from John Collingwood to Jack Quinn, dated September
18, 1996.
---------------------------------------------------------------------------
C. Summary of 4 Years of Politicization of the FBI
1. Past procedures for White House utilized the Department of Justice
In the past, as a result of concerns about the political
use of the FBI, White House contacts have been managed
primarily through the Department of Justice. The Assistant
Attorney General is the primary liaison for contacts between
the White House and the FBI. The current FBI has abandoned that
formality. Why has the FBI general counsel now taken on the
role of White House contact? At Director Freeh's request,
Shapiro has held a permanent White House pass since 1993. To
the committee's knowledge no other FBI general counsel has had
such unfettered access to the White House.
2. First Counsel's Office not staffed with agents
In the past, FBI Directors have staffed all offices with
career agents within the FBI, agents whose loyalty was to law
enforcement, and not to the political winds of 1600
Pennsylvania Avenue. When Freeh was appointed, he appointed
three associates from outside the FBI, and created the first
Office of the General Counsel. As the person to fill the fist
general counsel position at the FBI, Freeh chose his long time
friend and confidante, Howard Shapiro.
In his deposition before the committee, Shapiro defended
Director Freeh's decision to staff the FBI with nonagent
attorneys. He said:
And we had--although we had some absolutely, and we
still do, some absolutely fabulous agent attorneys who
had decided to make a career of it, for the most part I
thought we could improve the quality and the experience
and the expertise of the office by transitioning from
agent attorneys to nonagent attorneys.\535\
---------------------------------------------------------------------------
\535\ Shapiro deposition, p. 18.
Although Shapiro and Director Freeh may have intended to
``improve the quality'' of the attorneys at the FBI, they have
politicized the FBI, through the actions of Shapiro which
indicate the astute political skills and the intent to protect
the President and Mrs. Clinton. Shapiro, whether at the behest
of Director Freeh or not, has been the most prolific contact
with the Clinton administration and the White House--it's ally
at the FBI. His permanent White House pass and frequent White
House visits allowed and encouraged the spreading of
information to the White House as an ``affected party.''
3. Travel Office, FBI files, and Aldrich book
Evidence of the White House's political use of the FBI can
be found in the Travel Office scandal, the improper retrieval
of FBI files and the improper dissemination of a manuscript to
the White House. In the Travel Office matter, the White House
improperly requested that the FBI conduct an investigation into
the fired Travel Office employees. The Clinton administration
has made liberal use of the FBI and tarnished its reputation in
the process.
VIII. Secret Service Explanation
A. Introduction
When it was revealed that the White House had
inappropriately sought and obtained hundreds of FBI files of
former Reagan and Bush officials, the first line of defense
adopted by the White House came from Craig Livingstone's
attorney and was adopted by the White House.\536\
---------------------------------------------------------------------------
\536\ White House Admits Having Background Files, the Washington
Post, June 8, 1996, p. A1.
---------------------------------------------------------------------------
Mr. Livingstone's attorney, Randall Turk, who interviewed a
number of other former White House employees about the matter
when Billy Dale's FBI file was discovered, claimed the matter
had a ``completely innocent explanation'' and blamed the
problem on a ``Secret Service list that still contained Dale's
name as a current White House passholder.'' \537\ White House
spokesman, Mark Fabiani, immediately adopted Turk's
explanations.\538\ Livingstone's attorney also briefed the
White House Counsel's Office on Livingstone's explanations of
problems with the FBI files.
---------------------------------------------------------------------------
\537\ Id., at 1:41 p.m.
\538\ ``White House Admits Having Background Files,'' the
Washington Post, June 8, 1996.
---------------------------------------------------------------------------
On June 7, Mr. Turk refused to reveal the name of the
``Army detailee,'' but his identity was revealed to be Anthony
Marceca, an old political friend of Livingstone's, not a low
level clerk, as had initially been portrayed. Mr. Marceca did
not begin working at the White House until August 1993, long
after Mr. Dale's name was removed as a current White House
passholder and his Secret Service pass summarily revoked.
Another attorney for Livingstone, David Cohen, claimed that
``neither Marceca nor Livingstone noticed at first that the
lists included so many names that should have been purged from
them.'' \539\ Yet an undated memo, which appears to be from
March 1993, demonstrates that Livingstone clearly understood
that there were some names on Secret Service lists that needed
to be removed and Livingstone knew that it was his job to
remove them.\540\
---------------------------------------------------------------------------
\539\ ``Panetta Offers Apology Over Files `Mistake' '', the
Washington Post, June 10, 1996.
\540\ Confidential memorandum from Craig Livingstone to William
Kennedy, undated. Livingstone refers to the date on which the green/tan
access badges will expire as March 15, 1993. From this information, the
committee believes the date of this memorandum to be between March 4,
1993 and March 15, 1993.
---------------------------------------------------------------------------
There was no list after May 19, 1993 which would have
contained Mr. Dale's name as a ``current White House
passholder,'' since Mr. Livingstone himself sent a memo to the
Secret Service to place Mr. Dale and his colleagues on ``do not
admit'' status at the White House, as of May 19, 1993.\541\
---------------------------------------------------------------------------
\541\ May 19, 1993 memo from Craig Livingstone to Arnold Cole, CGE
33034.
---------------------------------------------------------------------------
Of the hundreds of FBI files that were gathered by
Livingstone and Marceca, most of them were never ``current
White House passholders'' at any time in 1993. As the Secret
Service concluded in the committee's July 17, 1996 hearings on
The Security of the FBI Files, on any list created in 1993,
most of the 476 names of individuals whose files were
improperly obtained would have been listed as inactive.\542\
The explanations offered by the White House and Livingstone
were implausible from the start but, since the Secret Service
is not in a position to publicly respond to such attacks, the
assault on the Secret Service served its purpose as a useful
tactic to shift blame.
---------------------------------------------------------------------------
\542\ Security of FBI Files hearing, July 17, 1996, pp. 46-47.
---------------------------------------------------------------------------
But even Livingstone had a hard time sticking with the
``blame the Secret Service'' strategy. On June 7, 1996, the
very day his attorney was blaming the Secret Service,
Livingstone went to Secret Service Agent Arnold Cole to discuss
the matter. In his deposition, Agent Cole revealed:
On June 7, 1996 I received a phone message that Craig
Livingstone wanted to see me about a case. On the same
day, at approximately 3:45 p.m., I met with Mr.
Livingstone outside his office in the Old Executive
Office Building. We briefly discussed a temporary
passholder case under review.
Unsolicited, Mr. Livingstone asked whether or not I
had seen the press release made by his attorney
concerning the Billy Dale files. I responded in the
affirmative, at which point Mr. Livingstone stated,
``We just wanted you guys to know that we weren't
blaming the Secret Service. Using an old list was our
fault, and we had the current stuff you guys gave us. I
don't know what happened.''
I told Mr. Livingstone that I did not think he could
blame us. Basically the conversation was terminated and
I reported to my supervisor.\543\
---------------------------------------------------------------------------
\543\ Cole deposition, pp. 41-42.
Cole testified before the committee that he had clearly briefed
Livingstone on the use of Secret Service lists.\544\ At any
rate, no combination of errors attributed by the White House to
the Secret Service can explain how and why the Office of
Personnel Security inappropriately obtained hundreds of FBI
files of former Reagan and Bush officials.\545\
---------------------------------------------------------------------------
\544\ Security of the FBI Files hearing, July 17, 1996, p. 47.
\545\ Id., pp. 24-41.
---------------------------------------------------------------------------
In testimony before the Senate Judiciary Committee on June
28, 1996, Livingstone appears to deny talking to anyone in the
Secret Service about the matter:
Senator Abraham. Once this was reported, I mean, a
few weeks ago, when it became clear that obviously
there were some files that were in this category we are
discussing, did you talk to the FBI, the Secret
Service, or anybody about how this could have happened?
Livingstone. I remember talking to a lot of people
because I was mortified once it became apparent what we
had, and I informed counsel. As I recall it
specifically, I informed my counsel, and my counsel
informed White House counsel later that night, separate
from me. The FBI came in immediately and removed the
files.
Senator Abraham. You had talked to the FBI then and
the Secret Service about it?
Mr. Livingstone. No.
Senator Abraham. You never did at that point?
Mr. Livingstone. No.\546\
---------------------------------------------------------------------------
\546\ White House Access to FBI Summaries; hearing before the
Senate Committee on Judiciary, 104th Cong., 2d. Sess., June 28, 1996 p.
111.
Livingstone did speak with the Secret Service about this
matter. Agent Cole, a decorated Secret Service employee,
testified that Livingstone left a copy of his attorney's press
release for him in his office and that Livingstone was making
efforts to contact him throughout the week.\547\ When Agent
Cole spoke with Livingstone, Cole testified that Livingstone
did not want to speak in his office. Cole asked him if he
thought his office was bugged and Livingstone ``indicated to
[Cole] that he just didn't think it was safe to talk in his
office.'' \548\
---------------------------------------------------------------------------
\547\ Cole deposition, p. 38.
\548\ Id., p. 184.
---------------------------------------------------------------------------
While the White House continued to place blame on the
Secret Service, no one from the White House ever contacted the
Secret Service to make any complaints about any problems with
Secret Service lists.\549\ When Secret Service Agents Libonati,
Undercoffer and Cole testified before the committee on July 17,
1996, it became clear that the Secret Service was not culpable
for the ``egregious violations of privacy'' that took place in
the Office of Personnel Security. The Secret Service spent an
extraordinary amount of time and resources carefully reviewing
the quality of information they provided to the White House.
There were no systemic problems for which the Secret Service is
responsible that would account for these actions.\550\
---------------------------------------------------------------------------
\549\ Security of the FBI Files hearing, July 17, 1996, p. 44.
\550\ Id., pp. 24-41.
---------------------------------------------------------------------------
B. The Secret Service's Role in Obtaining White House Access
The Secret Service maintains the E-Pass system. It is a
computerized access and pass holder system that produces hard
passes for the White House and computer printouts of pass
holders. The lists produced by the E-Pass system are used to
show who has and who does not have access to the White House.
John Libonati, Supervisory Special Agent with the Secret
Service, testified before the committee that ``[t]he printouts
are not designed, and should not be used for other purposes.
The printouts are produced for uses related to access issues.''
\551\
---------------------------------------------------------------------------
\551\ Id. Opening statement of Agent Libonati.
---------------------------------------------------------------------------
As Agent Libonati testified, ``the request for FBI files by
any White House administration is made solely for active
employees.'' \552\ The Secret Service provides lists of active
employees, inactive employees or a master list which contains
the names of approximately 24,000 active and inactive White
House passholders for the previous 8 years.\553\ Letter from
William H. Pickle, Executive Assistant to the Director of the
Secret Service, to Chairman Clinger, August 23, 1996.\554\
---------------------------------------------------------------------------
\552\ Id., p. 25.
\553\ Id., pp. 27-28; On August 23, 1996, William H. Pickle,
Executive Assistant to the Director of the Secret Service, wrote to
Chairman Clinger to explain why the Secret Service retains 8 years
worth of inactive passholder records. He wrote, ``In April of 1982, a
study was conducted by the Secret Service Office of Management and
Organization. The study concluded that due to a recurring need for
information in these files, an 8-year retention period would be
recommended to the National Archives for review. The request was
reviewed and approved by Archives appraisers in January of 1983.''
\554\ Thus, Secret Service Records would include the names and
status of those who held White House passes for 8 years.
---------------------------------------------------------------------------
The master List, kept by the Secret Service, includes 8
categories of a File Number; First, Middle, and Last Names;
Pass Type; Month, Date and Year, Date of Birth; Status; Month,
Date, and Year; and Office Name. The pass type indicates the
areas to which the passholder has access. The first listing of
month, date, and year is listed only for those whose pass is
scheduled to expire, and the date listed is the date of
expiration. The office name is the office in which the
passholder works. The status is the place where a notation is
made of whether the passholder's access is ``active'' or
``inactive.'' That status is indicated by an ``A'' or an ``I.''
C. The Lists Used By the White House Office of Personnel Security
One of the excuses offered by the White House as to why the
Office of Personnel Security improperly obtained FBI background
files was that they were updating their files because the
previous administration had removed all personnel files from
the White House. According to the Clinton administration, the
list provided to them from the Secret Service, which they used
to find out who should have access to the White House,
incorrectly included names of people from previous
administrations who should not have had access to the White
House. White House officials insistently refer to the Secret
Service's list as defective.
Craig Livingstone testified before the committee, ``[T]his
mistake occurred simply because the passholder list provided to
my office by the Secret Service contained some names of former
staffers who no longer had access to the White House complex,
interspersed among the names of actual, current passholders and
others who continued to have access.'' \555\ Liza Wetzl, now
Confidential Assistant to the Secretary of the Army, testified
before the committee that, ``I . . . concluded that Tony must
have ordered previous reports for every person on whatever out-
of-date Secret Service list he had been working from.'' \556\
This was an attempt to shift the blame for improperly ordering
hundreds of FBI background files from the White House to the
Secret Service. However, we learned that any list that was
produced in 1993, would have identified the vast majority of
the people whose files were wrongfully obtained as
``Inactive.''
---------------------------------------------------------------------------
\555\ Security of FBI Files hearings, June 26, 1996, p. 30.
\556\ Id., p. 47.
---------------------------------------------------------------------------
At the time Livingstone and Marceca testified, the
committee did not have the benefit of documents withheld by the
White House. When the White House finally produced subpoenaed
documents, they revealed that the White House knew that it was
required to keep the Secret Service apprised of changes of
those with access.\557\ These memoranda demonstrate that the
White House clearly knew that to remove names from access lists
was their job.
---------------------------------------------------------------------------
\557\ Memorandum from Craig Livingstone, Director of White House
Security to Arnold Cole; ``Please place the following people on
restricted access. They are restricted from gaining access to the White
House Complex without written authorization of Mr. David Watkins.''
Document CGE 33034; May 19, 1993.
---------------------------------------------------------------------------
D. The Only List they Could be Talking About
Because it had been accused by the White House of providing
inaccurate lists for use by the White House Security Office,
the Secret Service undertook an exhaustive audit of their E-
Pass system and any lists that may have been provided to the
White House. At hearings before this committee, the Secret
Service spoke in detail about the lists available to the White
House.\558\
---------------------------------------------------------------------------
\558\ Security of the FBI File hearing, July 17, 1996, pp. 24-41.
---------------------------------------------------------------------------
Agent Libonati described the information which led to the
search for mistakes in Secret Service lists. Agent Libonati
told the committee, ``Upon receipt of two lists which total 476
individuals [whose FBI background files the White House
obtained improperly] the Secret Service set out to determine
if, in fact, we had provided ANY LIST which would have
inaccurately reflected any or all of these 476 names as ACTIVE
passholders in 1993 or 1994.'' \559\ And because, according to
Libonati, [t]he Secret Service has for many years provided
printouts containing passholder information to the White House
Office of Personnel Security,'' Libonati characterized the
issue before the Secret Service in the following manner: ``Did
the Secret Service produce and/or provide any list or lists
which would have inaccurately reflected these 476 individuals
as ACTIVE passholders?'' Libonati presented to the committee
evidence uncovered by the Secret Service search and audit of
their files, which clearly demonstrated that the Secret Service
could not have provided such a list.\560\
---------------------------------------------------------------------------
\559\ Id., p. 25. (Emphasis in original.)
\560\ Id., pp. 24-41.
---------------------------------------------------------------------------
The Secret Service conducted an exhaustive audit of its
records. Libonati told the committee, ``The audit confirms that
from 1984 to July of 1993, 379 of the 476 names on the subject
list were made Inactive. We can account for 8 errors . . .''
\561\ Names were made inactive only at the request of the White
House. However, many of the names mentioned above were entered
into the E-Pass system when it was installed, and they were
entered as Inactive. Thus, at no time were many of the names on
the list of 476 in the E-Pass system as active passholders.
---------------------------------------------------------------------------
\561\ Id., p. 25.
---------------------------------------------------------------------------
Libonati recounted before the committee the evidence
uncovered by the Secret Service in their search for lists
produced by the E-Pass system at certain times. According to
Libonati, the evidence showed:
Ninety-four of the names of the 476 on the
list were inactivated between 1984 and 1989, before we
installed our current E-Pass system.\562\
---------------------------------------------------------------------------
\562\ Id., pp. 33-34.
---------------------------------------------------------------------------
In a printout of inactive passholders, the
evidence shows that ``182 of the 476 names in question
appear as they should on this inactive printout.''
\563\
---------------------------------------------------------------------------
\563\ Id., p. 34.
---------------------------------------------------------------------------
In a printout of active passholders from May
2, 1994, ``368 of the 476 names in question do not
appear on this list, and they should not appear on this
list. This is an active passholder list.'' \564\
---------------------------------------------------------------------------
\564\ Id., p. 34.
---------------------------------------------------------------------------
In a printout of active passholders as of July
31, 1993, ``379 of the 476 names in question do not
appear on this list.'' \565\
---------------------------------------------------------------------------
\565\ Id., p. 35.
---------------------------------------------------------------------------
In a printout of inactive passholders as of
August 19, 1994, 429 of the 476 names in question do
and should appear on this inactive list.'' \566\
---------------------------------------------------------------------------
\566\ Id.
---------------------------------------------------------------------------
In a March 31, 1993 active passholder list
provided to the committee by the White House, 408 of
the 476 names are not on the list. In addition, the
name of Elizabeth Belfore was not on the March 31, 1993
list, but is among the 476 people whose background
files were requested by the White House. Belfore did
not receive a pass until after July 8, 1993.\567\
---------------------------------------------------------------------------
\567\ Id., pp. 35-36.
---------------------------------------------------------------------------
The data compiled by the Secret Service clearly
demonstrated that the only way Marceca could have obtained all
of the names he sought files on would have been by utilizing a
master list with both ``Active'' and ``Inactive'' employees,
with the notations ``A'' and ``I'' clearly indicated on the
printout. In using the master list, Marceca would have had to
deliberately order the files of hundreds of individuals
identified as ``Inactive.'' Agent Cole testified that he
briefed Marceca's supervisor, Livingstone, on the ``Active''
and ``Inactive'' list notations:
Question. You would have meetings where you
instructed--I believe you testified you instructed
Craig Livingstone on procedures and how to get material
from your office and get updated lists, that type of
thing?
Answer. Yes, we have had conversations about that.
Question. In terms of reading the lists, what ``A''
and ``I'' meant, active and inactive; that kind of
thing had been explained to Mr. Livingstone?
Answer. Yes.\568\
---------------------------------------------------------------------------
\568\ Cole deposition, pp. 47-48.
Marceca has testified that he believed the designations,
``A'' and ``I'' on the Secret Service lists meant ``Access''
and ``Intern.'' \569\ To believe this story, one would have to
accept that Marceca, whose involvement in political campaigns
is extensive, believed that such well known former White House
officials as James Baker, A.B. Culvahouse, Ken Duberstein and
many others were ``holdover interns,'' a category of
passholders which does not exist.
---------------------------------------------------------------------------
\569\ Security of the FBI Files hearing, July 26, 1996.
---------------------------------------------------------------------------
Another fact uncovered by the Secret Service discredits
Marceca's explanation that he was working with an old, or
outdated list. One of the names on the list of files he
obtained, Elizabeth Belfore, did not begin working at the White
House until July 1993. Thus, any list Marceca worked from which
included her name was created after this date. Since Marceca
did not begin working at the White House until August 1993, it
is apparent that he must have used a list created during that
time period. A list made at that time would not have included
most of the names of individuals whose files were eventually
requisitioned by the White House.
E. Deactivation
At hearings before the committee, committee members
questioned why some former administration employees remained as
active passholders in the Secret Service E-Pass System.
Libonati and Cole explained that it is the responsibility of
the White House to inform the Secret Service when an employee's
status should change from active to inactive.
Libonati made the process of deactivation of passes clear
in his opening statement:
A pass is also made inactive solely at the request of
the White House. It is the responsibility of each
administration to identify those pass holders whom they
wish to remove from the active passholder list.
Regardless of how obvious it may seem to anyone in the
Secret Service, we cannot, should not, and do not
inactivate a pass without clear instruction from the
administration.\570\
---------------------------------------------------------------------------
\570\ Id., p. 27. (Emphasis added.)
After Libonati's explanation, Congresswoman Collins, the
ranking minority member of the committee, was still confused
---------------------------------------------------------------------------
about the process used to deactivate a pass.
Mrs. Collins of Illinois. Could you explain to me why
Senator Tower, who had died 2 years earlier in a plane
crash, still had an active White House pass in '93?
Mr. Cole. Because [the May 27, 1993 memorandum] was
the first notice we got from the White House to
deactivate his pass.
Mrs. Collins. Did you know he had died?
Mr. Cole. I wasn't aware of the fact that he had a
White House Pass, Ma'am.
Mrs. Collins. Did you know he had died?
Mr. Cole. Yes.
Mrs. Collins. Does anybody ever cull the lists to
take out people who are deceased?
Mr. Cole. The requirement for deactivation of passes
that is the same requirement that took place for
Vincent Foster, that we would have to have someone from
the White House to tell us to deactivate it. It is
obvious that person would not pose a threat to the
complex, because they are deceased.
Mrs. Collins. Why would you have to have somebody
tell you to deactivate a file of somebody that the
Service knows is not going to use it?
Mr. Cole. Because that documentation belongs to the
White House.
Although White House staff feigned ignorance of it, the
process of deactivation of passes for deceased or retiring
personnel was well known to the White House Security Office.
The fact that Livingstone made the request that the Secret
Service deactivate Senator Tower's pass establishes his
knowledge of the process of updating the Secret Service access
list as a White House responsibility.\571\ Other evidence
points to the fact that Livingstone was well acquainted with
the process of removing Bush administration officials from
Secret Service access lists.
---------------------------------------------------------------------------
\571\ Memorandum from Craig Livingstone, Director of White House
Security; Re: deactivation of Senator Tower; May 27, 1993. ``Please
deactivate the pass issued to Senator Tower.'' CGE 047989.
---------------------------------------------------------------------------
In a confidential memorandum from Craig Livingstone to
William Kennedy, Livingstone notes, ``Please note that there
are many Bush administration employees that still have active
badges. USSS informs me that it is WHS responsibility to
deactivate badges. I am working with WHOMA to begin this
process.'' Because of information contained in the memorandum,
it's date appears to be between March 4, 1993 and March 15,
1993.\572\
---------------------------------------------------------------------------
\572\ Confidential memorandum from Craig Livingstone, Chief of
White House Security, to William Kennedy, Associate White House
Counsel, undated. Within the memorandum, Livingstone refers to a crash
of the WAVE computer system occurring on March 4, 1993. Livingstone
refers to the date on which ``green/tan access badge[s]'' will expire
as March 15, 1993. From this information, the committee believes the
date of this memorandum to be between March 4, 1993 and March 15, 1993.
---------------------------------------------------------------------------
Documents dated August 9, 1993 include notes made by
Marceca from a meeting with Nancy Gemmell that included Lisa
Wetzl and Craig Livingstone. In those notes, Marceca writes,
``De-Activate former staff FBI contact to remove STOP on
[illegible].'' \573\ The White House staff was clearly familiar
with the process of updating Secret Service lists and the
language associated with it.
---------------------------------------------------------------------------
\573\ Anthony Marceca, notes from meeting with Nancy Gemmell,
August 9, 1993.
---------------------------------------------------------------------------
In addition to the notes and memoranda of Livingstone and
Marceca, testimony before the committee also points to the fact
that the staff of the White House Security Office was aware of
the process for deactivating White House passholders. In his
deposition to the committee, Agent Cole stated that he briefed
Livingstone on such matters.
Livingstone and Marceca knew the process of deactivating
White House access passes was a primary function of their jobs,
and they were fully briefed on the process required to do that.
Nonetheless, they tried to blame the Secret Service for their
malfeasance. Because of their attempts to shift the blame, the
Secret Service was forced to spend countless hours and
resources responding to inquiries and allegations. The only
logical conclusion to the audits conducted, was that no active
Secret Service list could have produced the list of names of
those whose FBI files were wrongfully requested by the White
House.
IX. White House Passes and Security Issues
A. Lax White House Security Procedures Were a Precursor to FBI Files
Issue
1. Problems with White House passes
The gathering of hundreds of FBI files was a consequence of
the White House placing highly unsuitable personnel and
supervisors in charge of the Security processes at the White
House. The fact that the Clinton White House followed lax
security procedures and was negligent in obtaining White House
passes became apparent over 2 years ago, in March 1994, after
lengthy congressional inquiries.
A GAO inquiry into the delays in obtaining White House
passes was requested by Chairman Clinger, and Representatives
Frank Wolf and Porter Goss in March 1994, and released in
October 1995. The GAO report outlined the unprecedented delays
of the Clinton White House in obtaining passes.\574\ In keeping
with the Clinton administration's pattern of resistance to
investigations, the GAO inquiry examining the delays in
obtaining the passes was met with numerous obstacles for over a
year.\575\
---------------------------------------------------------------------------
\574\ GAO report to Congress, ``Personnel Security: Pass and
Security Clearance Data for the Executive Office of the President,''
October 19, 1995.
\575\ The GAO inquiry which was requested in March 1994 was still
stalled in October 1994 when Chairman Clinger, Representative Wolf and
Representative Goss wrote to White House Chief of Staff Leon Panetta on
October 7, 1994 concerned about the delay in the investigation.
---------------------------------------------------------------------------
When the GAO inquiry finally concluded, it reported the
following findings:
A mere two permanent passes received final
approval prior to September 20, 1993--9 months into the
new administration.\576\ (In the past, permanent White
House passes were obtained for all staff by
approximately 6 to 9 months into a new
administration.\577\ )
---------------------------------------------------------------------------
\576\ GAO report, p. 21.
\577\ Staff interview with Jane Dannenhauer.
---------------------------------------------------------------------------
In 1993, new Clinton White House staffers held
temporary passes for an average of 341 days, thus
requiring numerous renewals. (A temporary pass is
usually issued for 90 days.) \578\
---------------------------------------------------------------------------
\578\ GAO report, p. 28.
---------------------------------------------------------------------------
In 1993, the Secret Service stated that it
routinely granted eight or more extensions to
individuals for temporary passes as requested by the
Executive Office of the President.\579\
---------------------------------------------------------------------------
\579\ GAO report, p. 29.
---------------------------------------------------------------------------
There were 190 new Clinton White House
staffers who took more than 100 days to complete the
SF-86--the basic paperwork needed for the FBI to
initiate a background investigation.\580\
---------------------------------------------------------------------------
\580\ GAO report, p. 22.
---------------------------------------------------------------------------
There were 36 new Clinton White House staffers
who took over 300 days--almost a year--to complete
their SF-86s.\581\
---------------------------------------------------------------------------
\581\ GAO report, p. 22.
---------------------------------------------------------------------------
Of the 400 staff entering on duty during 1993,
250 took over 300 days to be approved for permanent
passes.\582\
---------------------------------------------------------------------------
\582\ GAO report, p. 21.
---------------------------------------------------------------------------
In 1993, 361 of 398 individuals took 200 days
or more to be approved for a permanent pass.\583\
---------------------------------------------------------------------------
\583\ GAO report, p. 29.
---------------------------------------------------------------------------
Only about two dozen staffers had ``interim
clearances'' according to the White House in the first
8 months of the administration.\584\
---------------------------------------------------------------------------
\584\ GAO report, p. 34.
---------------------------------------------------------------------------
Individuals entering on duty during 1993
received final approval for permanent White House
passes ``an average of 346 days from their start
date.'' \585\
---------------------------------------------------------------------------
\585\ GAO report, p. 3.
---------------------------------------------------------------------------
``The longer time needed to process 1993
entrants was primarily attributable to the time
individuals took to complete the SF-86 and to
subsequent actions taken by the Executive Office of the
President.'' \586\
---------------------------------------------------------------------------
\586\ Id.
---------------------------------------------------------------------------
When White House advisor George Stephanopoulos was
questioned about the problems with obtaining passes during
``This Week with David Brinkley,'' on June 30, 1996, he
erroneously claimed:
Stephanopoulos. Well most people did go get their
interviews. Most people got their passes. If there was
slippage, that was a mistake. It was wrong.
Sam Donaldson. Aldrich [FBI agent Gary Aldrich] says
hundreds.
Stephanopoulos. Well, I'm not sure that's true . . .
I don't have the exact number.
According to a White House memo from Craig Livingstone,
Stephanopoulos' temporary pass was renewed for an additional 90
days on December 13, 1993.\587\ Stephanopoulos, like most of
the White House staff at that time, had numerous renewals of
his temporary pass.
---------------------------------------------------------------------------
\587\ White House production CGE 047029. Memorandum for U.S. Secret
Service Pass Section from White House Security, Re: extension of
passes, December 13, 1993.
---------------------------------------------------------------------------
The GAO inquiry was preceded by months of congressional
inquiries into the inordinate delay in obtaining White House
passes.\588\ Senior officials, including the then-Chief of
Staff Mack McLarty, did not obtain permanent passes until March
1994. Once this serious security breach of the Clinton
administration was brought to light in March 1994, the White
House was forced to respond.
---------------------------------------------------------------------------
\588\ Representative Frank Wolf began inquiring about the delays in
White House passes and the lack of procedures being followed with
passes in July 1993. Throughout the fall of 1993 and into 1994, then-
Chief of Staff Mack McLarty assured Wolf that clearances were being
handled ``in a timely manner.''
---------------------------------------------------------------------------
The press began reporting on the delays in the issuance of
permanent White House passes in early 1994. On March 10, 1994,
the Wall Street Journal first pointed out that the White House
had not approved passes for senior White House officials such
as the Director of the Office of Administration, Patsy
Thomasson.\589\ This article appears to have generated a memo
from Associate Counsel William Kennedy to Mack McLarty
explaining the procedures to receive a permanent pass.\590\ The
next day the Washington Post reported that, ``15 White House
aides, including press secretary Dee Dee Myers and another
unidentified senior official, have yet to receive security
clearances because they failed to complete necessary paperwork
. . .'' \591\
---------------------------------------------------------------------------
\589\ ``Who is Patsy Thomasson?'' Wall Street Journal, March 10,
1994.
\590\ Memorandum to Thomas F. McLarty from William H. Kennedy III,
re: procedures to receive a permanent pass, March 10, 1994, CGE 054752.
\591\ ``After Year, 15 White House Aides Have Yet to Receive
Security Clearances,'' the Washington Post, March 11, 1994.
---------------------------------------------------------------------------
By March 12, 1994, the White House conceded that the
situation was actually much worse than it originally admitted
and that hundreds of staff did not have permanent passes:
``White House Press Secretary Dee Dee Myers . . . confirmed
that about a third of the 1044 employees designated as White
House staff, including herself, have not received their
permanent passes.'' \592\ Of the 125 senior staff,
approximately one-third still did not have their permanent
passes.\593\ By March 14, 1994, the White House raised the
number of officials who did not have security clearances to 100
rather than the 15 individuals originally reported.\594\
Clearly, the responses provided to Congress by McLarty were
misleading, incomplete and inaccurate.\595\
---------------------------------------------------------------------------
\592\ ``White House lags badly on background checks,'' the
Washington Times, March 12, 1994.
\593\ Id.
\594\ ``100 on White House Staff Lack Clearance,'' the Washington
Post, March 14, 1994.
\595\ See letters to Rep. Frank Wolf from Mack McLarty dated August
19, 1993, October 27, 1993 and February 24, 1994.
---------------------------------------------------------------------------
Ms. Jane Dannenhauer, Assistant to the Counsel to the
President in charge of the Security Office during the Nixon,
Ford, Reagan and Bush administrations, reported that a new
administration normally completed its pass issuance within
approximately 6 months, or at most 9 months.\596\ In
comparison, the GAO reported that only two Clinton staffers had
permanent passes 9 months into the administration.\597\ Messrs.
Kennedy and Livingstone, who were responsible for White House
pass issuance, did not obtain their own passes until November
23, 1993.\598\
---------------------------------------------------------------------------
\596\ Staff interview of Jane Dannenhauer.
\597\ GAO report, p. 21.
\598\ GAO documents prepared for GAO report, January 5, 1995. (In
committee files).
---------------------------------------------------------------------------
2. Unsuitable personnel in charge of overseeing the Office of Personnel
Security
While the committee and the public have yet to learn who
hired Craig Livingstone, the committee discovered information
on the hiring of his supervisor, William Kennedy. Mr. Kennedy
testified that Mrs. Clinton participated in his selection as
Associate White House Counsel.\599\ At the time of his
background investigation, Kennedy informed the FBI's SPIN Unit
Chief Bourke that he was a ``close personal friend of the
President and Mrs. Clinton for twenty years and was a managing
partner in the same Arkansas law firm in which Mrs. Clinton was
employed.'' \600\
---------------------------------------------------------------------------
\599\ Kennedy deposition, June 18, 1996, p. 4:
Question: Did the First Lady have any involvement in your hiring?
Kennedy. She did.
\600\ February 26, 1993 memo to Mr. Brekke from Mr. Bourke
regarding ``Meeting with William Kennedy, Associate Counsel, the White
House, February 18, 1993. (FBI document production, July 10, 1996,
unnumbered.)
---------------------------------------------------------------------------
Mr. Kennedy, in his position as an Associate Counsel,
reviewed the sensitive background investigations of
Presidential appointees and White House staff, including
Director of Personnel Security Craig Livingstone. Although
Kennedy supervised Livingstone's office and was aware of
problems in Livingstone's background, he favorably adjudicated
his file.\601\
---------------------------------------------------------------------------
\601\ Kennedy deposition, June 18, 1996, p. 9.
---------------------------------------------------------------------------
Mr. Kennedy had background problems of his own. Mr. Kennedy
did not properly disclose his failure to pay Social Security
taxes for a servant in his home. He paid the taxes belatedly
under his wife's former married name.\602\ Just as Kennedy had
ignored the problems in Livingstone's background, Livingstone
adjudicated Kennedy's background favorably, ignoring the
derogatory information.\603\ Although each had completed the
adjudication of the other's file, Kennedy did not forward
either his or Livingstone's file to the Secret Service for
months.\604\
---------------------------------------------------------------------------
\602\ ``Patsy Takes the Fiske,'' Wall Street Journal, March 24,
1994.
\603\ CGE 054658, undated document titled ``Deconcini'' with
questions and answers, CGE 54654-662.
\604\ Ann Devroy, 100 on White House Staff Lack Clearance, the
Washington Post, March 14, 1994.
---------------------------------------------------------------------------
Four Counsels to the President and two Chiefs of Staff kept
Mr. Livingstone in his position despite serious concerns about
his background. Livingstone was retained despite his penchant
for short working hours and routine demands for large salary
increases. Keeping Craig Livingstone employed seemed more
important to Clinton administration officials than maintaining
the security of some of the Nation's most sensitive files.\605\
---------------------------------------------------------------------------
\605\ Three attorneys in the White House Counsel's Office wrote
letters requesting a raise for Craig Livingstone, even though there was
a salary freeze. CGE 048622, 048627; Mr. Livingstone wrote several
letters to Abner Mikva requesting a raise, stating, ``[T]his is my last
try to remain part of the team.'' CGE 048058; See, supra section III.
---------------------------------------------------------------------------
Former White House Counsels have testified that the process
of reviewing FBI files ``is a solemn, legal and ethical
obligation.'' \606\ After the committee discovered that the
Office of Personnel Security ordered the files of hundreds of
former Reagan and Bush administration officials, the Director
of the FBI, Louis Freeh, called the actions ``egregious
violations of privacy.'' \607\ Director Freeh continued to
state that the files were ordered ``without justification.''
\608\ As Director Freeh pointed out, the system utilized relied
on the ``good faith and honor'' of those involved in the
process.\609\ As the Washington Post opined on June 17, 1996:
---------------------------------------------------------------------------
\606\ Security of FBI Files hearing, June 19, 1996, p. 32.
(Testimony of A.B. Culvahouse.)
\607\ Howard M. Shapiro, general counsel, FBI; Report of the
General Counsel on the Dissemination of FBI FIle Information to the
White House; June 14, 1996. (Statement of FBI Director Louis Freeh).
\608\ Id.
\609\ Howard M. Shapiro, general counsel, FBI; Report of the
General Counsel on the Dissemination of FBI FIle Information to the
White House; June 14, 1996.
. . . damage was done from Day 1 when Craig
Livingstone was put in this job. The last people in
government to have access to, let alone be custodians
of, sensitive background investigation reports and
material should be political operatives. That,
unfortunately, is what the Clinton administration seems
to have done. And that's for starters.\610\
---------------------------------------------------------------------------
\610\ ``The FBI Files Flap: Take 2,'' the Washington Post, June 17,
1996.
FBI Special Agent Tom Renaghan, who supervised the FBI
agents who conducted background investigations at the White
---------------------------------------------------------------------------
House, remembered issues in Livingstone's background:
that were not totally favorable . . . they [FBI
agents Aldrich and Sculimbrene who conducted background
investigations at the White House] both felt that he
wasn't the right guy to be the Security Director. They
didn't think he had the background or demeanor, didn't
appear to be the kind of guy that would be the type of
person that would be--you would expect in that position
. . . He was unprofessional in many ways, as
unprofessional as they would perceive a guy to be who
had that type of a job. . . . They voiced their opinion
to me about that periodically asking me to take some
kind of action to get something done with respect to
him.\611\
---------------------------------------------------------------------------
\611\ Renaghan deposition, July 19, 1996, pp. 62-65.
Mr. Kennedy allowed Livingstone to retain his sensitive
position after reviewing Livingstone's background file.
Although both FBI and Secret Service agents raised suitability
and security concerns about Livingstone, Kennedy ignored
them.\612\ Senator Dennis DeConcini, the then-Democratic
chairman of the Treasury Postal Service and General Government
Subcommittee of the Appropriations Committee, which approved
appropriations for the White House, as well as chairman of the
Senate Intelligence Committee, recommended that Livingstone be
replaced in 1994 with a professional careerist. Senator
DeConcini's recommendations were ignored by then-White House
Counsel, Lloyd Cutler.\613\
---------------------------------------------------------------------------
\612\ Cole deposition, July 10, 1996, pp. 21-22.
\613\ August 11, 1994 letter to the President from Senator
DeConcini.
B. The Process by Which Background Investigations Are Conducted
The process for obtaining a permanent access pass to the
White House generally requires the following steps:
1. Pre-employment steps
a. Security interview
Prior to each person's appointment, applicants must undergo
a security interview conducted by the relevant security
office.\614\ In the case of the political staff, generally the
``White House staff,'' the interview would be conducted by the
Office of Personnel Security, supervised by Livingstone. For
the career staff, the Office of Administration Security Officer
would conduct the interviews.\615\ During the first year-and-a-
half of the Clinton administration, hundreds of employees did
not submit to this interview prior to employment, or for many
months after being hired.\616\
---------------------------------------------------------------------------
\614\ GAO report, p. 15.
\615\ Easley deposition, July 26, 1996.
\616\ GAO report.
---------------------------------------------------------------------------
b. Submit to a drug test
All applicants must submit to a drug test. If the test is
positive, the person is supposed to be disqualified from
appointment.\617\ Many of the new employees in the Clinton
administration did not take drug tests prior to employment at
the White House, and they were often conducted months later.
---------------------------------------------------------------------------
\617\ GAO report, p. 15.
---------------------------------------------------------------------------
c. An initial name check
Applicants must undergo an initial name check in which
their name, date of birth, place of birth, and Social Security
number are checked through the Secret Service's Workers,
Appointment, and Visitors Entrance System (WAVES). This
consists of checks through four computer databases: the FBI's
National Crime Information Center database; a criminal history
database; a Secret Service database; and a Washington-area law
enforcement database.\618\ This is the type of name check that
is conducted for visitors at the White House. For many Clinton
White House staff in the first year-and-a-half, this was the
only background check conducted on them.
---------------------------------------------------------------------------
\618\ GAO report, p. 15.
---------------------------------------------------------------------------
d. An extensive FBI name check
In this process, the White House forwards a request form to
the FBI to check the name through the FBI Central Records,
computer databases and the Criminal Justice Information
Services database to identify any derogatory information and
prior arrest records.\619\ Any previous report is also provided
if the individual already has an FBI background investigation
on file.
---------------------------------------------------------------------------
\619\ GAO report, p. 15.
---------------------------------------------------------------------------
e. Obtaining a temporary pass
Each new employee who is expected to work 90 days or more
has 30 days from the date of employment in which to complete
the SF-86, an FBI investigation consent form, and a tax check
waiver.\620\ This 30 day standard was the regular practice in
past administrations; however, there was no such legal
requirement.
---------------------------------------------------------------------------
\620\ GAO report, p. 16.
---------------------------------------------------------------------------
Mr. Charles Easley, who headed up the Security Office for
career employees at the White House, stated that if someone did
not turn in their SF-86s and other background information
within 30 days, ``they had a lot of time to sit at home and do
their forms'' because he would not allow someone to work at the
White House.\621\ Mr. Easley said that this was not the case
for the staff handled by Livingstone. Easley acknowledged that
he was aware that Livingstone allowed staff to work at the
White House and obtain a temporary pass without turning in
paperwork, a change in normal procedure.\622\
---------------------------------------------------------------------------
\621\ Easley deposition, p. 48.
\622\ Easley deposition, pp. 48-50.
---------------------------------------------------------------------------
Previously, the practice had been that an individual had to
stay on an ``access list'' prior to completing the SF-86 and
related paperwork, which meant the person would have to present
positive identification each time he or she entered the White
House complex.\623\ Once the FBI name check is returned, the
individual would be issued a temporary pass for a period not to
exceed 90 days. After one extension, the Secret Service is
supposed to contact the requesting office to provide a
rationale for an additional extension.\624\ Each new employee
also is required to attend a security briefing at which his or
her attendance should be documented.\625\
---------------------------------------------------------------------------
\623\ GAO report, p. 16.
\624\ GAO report, p. 16.
\625\ GAO report, p. 16.
---------------------------------------------------------------------------
f. Obtaining a permanent pass
Before a permanent pass is obtained, the FBI or some other
agency must conduct a full-field background investigation. If
the investigation reveals information that warrants attention,
the FBI notifies the White House Counsel's Office, the White
House Office of Personnel Security, or the Security Office of
the EOP (administered by Charles Easley) and might provide an
interim report.\626\
---------------------------------------------------------------------------
\626\ GAO report, p. 17.
---------------------------------------------------------------------------
Once the reviewing office receives the FBI background
investigation summary, it determines suitability and decides
whether to forward the file to the Secret Service. A written
request is sent to the Secret Service for a permanent access
pass for the employee and, if the Secret Service agrees there
is no danger to the President or other protectees, a permanent
pass is issued.\627\
---------------------------------------------------------------------------
\627\ GAO report, p. 18.
---------------------------------------------------------------------------
During the first year-and-a-half of the Clinton
administration, this process was neglected and hundreds of new
White House staff worked in positions, including the most
senior positions, with only very limited checks on their
backgrounds and no permanent passes. The importance of
following procedures and determining the suitability of staff
members is to protect both the President, personally, and the
vast amount of sensitive information at the White House.
At no place is it more important that individuals of the
highest caliber serve in positions of responsibility than at
the White House. The White House handles matters of life and
death on a daily basis and the American people must be able to
rely upon stable and suitable people being involved in this
process. Because the White House had failed in this process,
Presidential Assistant Patsy Thomasson made this alarming
admission in her March 22, 1994 testimony before the House
Treasury Postal Appropriations subcommittee: ``We don't think
we have any Aldrich Ameses at the White House . . . But we
certainly could.'' \628\
---------------------------------------------------------------------------
\628\ Patsy Takes the Fiske, the Wall Street Journal, March 24,
1994.
---------------------------------------------------------------------------
This admission prompted then-Congressman Dan Glickman,
chairman of the House Intelligence Committee to write to the
Director of the CIA asking what steps he had taken to ensure
that White House staffers without clearances did not have
access to classified material.\629\ Representative Glickman
noted at the time, ``The urgency of this matter has been
highlighted by the arrest of Aldrich Ames.'' \630\ Early in the
administration, there was cause for concern about White House
personnel.
---------------------------------------------------------------------------
\629\ Id.
\630\ Id.
---------------------------------------------------------------------------
C. Background Investigations of Clinton White House Staff
1. White House staff provided minimal cooperation to the FBI
The FBI agents who worked on a day-to-day basis in
conducting FBI background investigations on the new Clinton
White House staffers were very familiar with the delays in
obtaining White House passes. From the start, the process was
slower than with previous administrations and staff cooperation
was liminted.
FBI Agent Dennis Sculimbrene testified that the incoming
administration usually starts sending cases on Cabinet-level
personnel and appointees in December, before the Presidential
Inauguration. But that did not occur with the Clinton
administration.\631\ Agent Sculimbrene said there was a marked
contrast with this administration: ``the forms were poorly
filled out and they didn't even start getting them until
July.'' \632\ When they received the forms, they were often
backdated.\633\
---------------------------------------------------------------------------
\631\ Sculimbrene deposition, July 15, 1996, p. 28.
\632\ Id., p. 29.
\633\ Id.
---------------------------------------------------------------------------
Agent Sculimbrene's supervisor, Tom Renaghan, also reported
that backgrounds were received late and were backdated.\634\
FBI Agent Cecelia Woods, another agent assigned to the White
House, reported that she saw the dates on SF-86s visibly
changed and received SF-86s sometimes 8 months after they had
been completed by the appointee.\635\
---------------------------------------------------------------------------
\634\ Renaghan deposition, pp. 13-15.
\635\ Woods deposition, July 10, 1996, pp. 20-22.
---------------------------------------------------------------------------
FBI Agent Greg Schwarz testified that he had trouble
setting up interviews or getting people to appear for
interviews and was aware of this happening to other agents at
the White House.\636\ Agent Woods testified that Renaghan, her
supervisor, advised Unit Chief Bourke of these irregularities
and that Bourke should have discussed the problems with
Associate White House Counsel Bill Kennedy.\637\ Woods,
however, never saw any corrective actions taken on issues she
or her colleagues raised with her supervisors.\638\
---------------------------------------------------------------------------
\636\ Schwarz deposition, July 11, 1996, pp. 27-30.
\637\ Woods deposition, July 10, 1996, pp. 22-23.
\638\ Id., p. 61.
---------------------------------------------------------------------------
FBI Agent Gary Aldrich explained that he had problems
conducting background interviews, including: problems in
locating individuals, an inability to contact them directly and
appointments being made and broken.\639\ As a result of these
problems, Deputy White House Counsel Vincent Foster sent out a
memo to all staff on February 17, 1993 instructing them to
cooperate with FBI Agents Aldrich and Sculimbrene. Mr. Foster
wrote:
---------------------------------------------------------------------------
\639\ Aldrich deposition, July 18, 1996, p. 20.
There are a large number of staff members yet to be
interviewed and only a few weeks left to complete them
before your temporary clearance expires. Please be
responsive to the Agent's request for an interview and
accommodate his schedule.\640\
---------------------------------------------------------------------------
\640\ Memorandum to all White House Office Staff from Vincent
Foster and William Kennedy, CGE 048210.
There was such laxity in submitting the names of new White
House staff for background investigations that Bourke resorted
to clipping newspaper articles which identified new staffers
and sending them to Bill Kennedy with notes that the FBI had
not received the backgrounds of the individuals named.\641\
---------------------------------------------------------------------------
\641\ FBI document production, July 10, 1996 (unnumbered). March 1,
1993 letter to Bill Kennedy from Jim Bourke; April 7, 1993 letter to
Bill Kennedy from Jim Bourke; October 20, 1993 letter to Bill Kennedy
from Jim Bourke.
---------------------------------------------------------------------------
Agent Bourke's letters to Kennedy highlight the fact that
the FBI had not been provided information on many top White
House officials as late as October 1993. In an April 7, 1993
letter to Bill Kennedy, Bourke wrote: ``I read an article in
the April 6, 1993, edition of USA Today on Jocelyn Elders. It
reminded me that we still do not have the paperwork to do her
background investigation (BI).'' \642\ At the same time that
the White House was negligent in obtaining background
investigations on new White House staff members, Livingstone
and Marceca were ordering the background investigations on
former Reagan and Bush officials.
---------------------------------------------------------------------------
\642\ April 7, 1993 letter to Bill Kennedy from Jim Bourke.
---------------------------------------------------------------------------
2. Problems in the background investigations of Clinton administration
staff
Almost immediately FBI agents reviewing the background
files of the new Clinton White House officials noticed
significant problems. According to Sculimbrene, the problems in
the backgrounds included, ``using illegal drugs repetitively,
lying to law enforcement officers, lying about school records,
being fired.'' \643\
---------------------------------------------------------------------------
\643\ Sculimbrene deposition, July 15, 1996, p. 42.
---------------------------------------------------------------------------
Agent Sculimbrene noted that the drug use was by ``older
people who had used illegal drugs much more recently, as
recently as the Inaugural.'' \644\ According to Sculimbrene,
these drugs included:
---------------------------------------------------------------------------
\644\ Id.
designer drugs . . . I think the first time I heard
the word `designer drugs' was off an appointee. Cocaine
. . . possibly crack cocaine . . . hallucinogenic
mushrooms. I think some people used LSD. It was much
more than the one or two times when they were 18 or 19
years old . . . this was not just junior staffers,
either.\645\
---------------------------------------------------------------------------
\645\ Id., p. 43.
Agent Sculimbrene noted that he did not believe that ``a single
person'' was terminated because of any information of this
nature that became apparent from an FBI background
investigation.\646\
---------------------------------------------------------------------------
\646\ Id., p. 44.
---------------------------------------------------------------------------
FBI Agent Cecilia Woods also found recent drug use in the
backgrounds of some appointees and noted one instance where
drug usage stopped as recently as the day before an individual
filled out the SF-86.\647\
---------------------------------------------------------------------------
\647\ Woods deposition, p. 29.
---------------------------------------------------------------------------
It was in a White House having its own problems completing
background investigations that Livingstone and Marceca were
busy at work on the ``Update Project,'' which resulted in the
procurement of hundreds of background investigation files of
former Reagan and Bush officials.
D. Secret Service Concerns
1. Delays in submitting background investigations to the Secret Service
The Secret Service also became concerned about the delays
in the Clinton White House obtaining permanent passes.\648\
Secret Service Agent Arnold Cole was the supervisor of the
White House Access Control Branch and was the individual tasked
with interfacing with Livingstone's office.\649\
---------------------------------------------------------------------------
\648\ Cole deposition, p. 18
\649\ Id., p. 6.
---------------------------------------------------------------------------
During the transition, Cole and other security personnel
met with Clinton officials regarding security matters. At that
time, David Watkins was the point of contact and Cole met with
him on several occasions.\650\ At some point later in February,
Livingstone was identified to Cole as the person who would be
heading up the office.\651\
---------------------------------------------------------------------------
\650\ Id., p. 8.
\651\ Id., p. 10.
---------------------------------------------------------------------------
During the spring of 1993, Cole convened a meeting of
security officers for March 31, 1993 to meet ``new members of
the administration and discuss any security issues pertaining
to the White House complex.'' \652\ These meetings were
convened monthly through November 1993.\653\ Agent Cole
testified that the Secret Service received very few background
files before the end of 1993.\654\
---------------------------------------------------------------------------
\652\ Id., p. 15.
\653\ Id., p. 17.
\654\ Deposition of Arnold Cole, July 10, 1996, p. 25.
---------------------------------------------------------------------------
As the meetings proceeded through the year, it became
apparent that there were problems with staff obtaining
permanent passes. Agent Cole testified:
. . . the obvious concern that we had from a security
standpoint was that anyone with a temporary pass
exceeding 90 days and they have close proximity to the
President, we would want to know whether or not this
person would pose a possible immediate or projected
threat later on. So those were our concerns.\655\
---------------------------------------------------------------------------
\655\ Deposition of Arnold Cole, July 10, 1996, p. 18.
Agent Cole testified that he raised these concerns with
Bill Kennedy and explained to him the importance of having the
background investigations completed.\656\ Yet neither Kennedy's
own background file nor Livingstone's were forwarded to the
Secret Service until September 20, 1993.\657\ Following the
submission to the Secret Service of both of their backgrounds,
it took another 2 months before the Secret Service issued
permanent passes to Kennedy or Livingstone on November 23,
1993.\658\ Earlier that month, on November 7, 1993,
Livingstone's neighbor filed a complaint with the Montgomery
County Police Department, charging Livingstone with a simple
assault for threatening her. Mr. Livingstone reportedly said,
``If you don't keep that (expletive deleted) dog quiet, I'm
going to beat your face in.'' \659\ The neighbor informed
police that Livingstone made previous threats to her in the
past, which Livingstone admitted.\660\
---------------------------------------------------------------------------
\656\ Id., p. 19.
\657\ GAO draft of data for GAO report, 1/5/95.
\658\ Id.
\659\ November 7, 1993 event report to Montgomery County Police of
threat to Barbara Ann Sable by Craig Livingstone, #B93-240485.
\660\ Id.
---------------------------------------------------------------------------
Background files with no problems take only several days
for the Secret Service to issue a permanent pass. No one at the
White House was alarmed when the people whom they put in charge
of reviewing backgrounds had problems significant enough to
cause a 2 month delay in issuing their permanent passes. A man
who made assault threats against a woman was put in charge of
security at the White House. This should never have occurred.
2. The Secret Service raised concerns about the content of the
background files
The Secret Service raised concerns about whether
Livingstone should be granted a White House pass,\661\ when it
obtained his background file in September 1993. Agent Cole said
that he became aware of ``derogatory information'' in
Livingstone's file and raised it with Kennedy:
---------------------------------------------------------------------------
\661\ Cole deposition, pp. 21-22.
What I recall discussing with Mr. Kennedy was my
concerns on the derogatory information and whether or
not he concurred or not . . . he wanted to understand
specifically what my concern was as it related to our
mission . . . \662\
---------------------------------------------------------------------------
\662\ Id., pp. 22-23.
Agent Cole said there was also information in Kennedy's
background file which was brought to his attention that he
reviewed from a security standpoint and ultimately resolved in
favor of Mr. Kennedy.\663\
---------------------------------------------------------------------------
\663\ Id., pp. 24-25.
---------------------------------------------------------------------------
As background investigations of other individuals started
coming into the Secret Service in late 1993 and early 1994, it
became apparent that there were issues of recent drug use in
many files. Agent Jeff Undercoffer, who reviewed files in early
1994, testified: ``I would say more than 30, more than 40,
perhaps, had drug usage [beyond college age]'' . . . and ``a
few dozens who were recent.'' \664\ Agent Undercoffer testified
to what the files he reviewed included:
---------------------------------------------------------------------------
\664\ Id., p. 41.
I have seen cocaine usage. I have seen hallucinogenic
usages, crack usages . . . I would say those are the
big three.\665\
---------------------------------------------------------------------------
\665\ Undercoffer deposition, p. 42.
In late 1993, the Secret Service raised concerns over an
individual's pass request ``based on our review of the
background investigation'' in which they ``felt that the
derogatory information was such that it may compromise the
security of the White House without some other mechanism in
place to ensure that our concerns were just merely concerns.''
\666\
---------------------------------------------------------------------------
\666\ Cole deposition, p. 31.
---------------------------------------------------------------------------
The Secret Service initially denied pass requests for a
number of individuals because of very recent drug use.\667\ Out
of this situation, a program was developed whereby the
offending individual was required to participate in a special
drug testing program for White House employees with recent drug
use.\668\
---------------------------------------------------------------------------
\667\ Id., p. 32.
\668\ Cole and Undercoffer depositions.
---------------------------------------------------------------------------
E. White House Drug Testing Program
In order to obtain the approval of the Secret Service in
issuing permanent passes to individuals with recent drug use,
the White House instituted a random drug testing program. Agent
Cole explained the program: ``I think it was a compromise
between both the White House and the Secret Service as a
suggestion as to what would be amenable to both parties.\669\
According to the White House, the program included as many as
21 people over the past several years according to the White
House. These were individuals who had drug use in the year
before they began work at the White House. Nine such
individuals still are employed at the White House.\670\ As
White House Counsel Jack Quinn explained the program:
---------------------------------------------------------------------------
\669\ Cole deposition, p. 32.
\670\ July 31, 1996 letter to Chairman Clinger from Jack Quinn.
In a small number of instances, the Office of White
House Counsel in consultation with the Secret Service,
determined that an individual should be issued a pass
only if he or she agrees to be subject to the more
frequent, non-random special drug testing protocol
described above. This means being tested unannounced
twice a year under the same conditions as the standard
random testing program in the EOP's Drug-Free Workplace
Plan. These individuals are so designated because
information developed in the course of the security
clearance process or supplied by the individual
suggested that it would be prudent to do so.\671\
---------------------------------------------------------------------------
\671\ Id.
It is important to recognize that this program is handled
entirely by the White House Counsel's Office and the drug
testing is administered by the EOP random testing program. When
an individual is placed in this program, a ``drug letter'' is
placed in his or her file with the Secret Service. The Secret
Service is then informed if there is any positive drug testing.
The individual must sign this ``drug letter'' indicating
that they acknowledge the drug use set forth in his or her FBI
background investigation and the individual is informed that
any positive drug test would be grounds for immediate
termination.\672\
---------------------------------------------------------------------------
\672\ July 31, 1996 letter to Chairman Clinger from Jack Quinn.
---------------------------------------------------------------------------
The Secret Service has no role in the procedures for the
drug testing program and relies entirely upon the information
provided by the White House. There is no independent
verification of the information by the Secret Service, which is
entirely dependent upon the good faith efforts of the Counsel's
Office to comply with the requirements in the ``drug letter.''
The White House Counsel's Office staff who have been involved
since 1993 in overseeing or supervising the special drug
testing are Bill Kennedy, Beth Nolan and Chris Cerf.\673\
---------------------------------------------------------------------------
\673\ Id.
---------------------------------------------------------------------------
While the White House went to extraordinary lengths to have
recent drug users on staff--it even created a special program
to keep them employed at the White House--a June 10, 1993 memo
suggests that Bill Kennedy and Craig Livingstone seemed to
think drug users might have some kind of ``right'' to a job at
the White House! \674\
---------------------------------------------------------------------------
\674\ June 10, 1993, ``Assignment from Bill Kennedy & Craig
Livingstone,'' CGE 047888.
---------------------------------------------------------------------------
In regard to staff who admit present or prior drug use, the
June 10, 1993 memo asks: ``Does the President have the
authority to (1) refuse employment; (2) hire on conditions:
send the individual to a health care professional to assess the
individual's suitability/risk as a pre-condition of employment;
and, (3) hire without any conditions?'' \675\ Mr. Kennedy, who
oversaw the frivolous firings of the Travel Office, had to ask
whether or not the President could deny present drug users a
job at the White House.
---------------------------------------------------------------------------
\675\ Id.
---------------------------------------------------------------------------
F. CIA Compartmented Clearances
The Clinton White House issued the highest of national
security clearances, CIA compartmented clearances, to
Livingstone, Wetzl and other young staffers in the Office of
Personnel Security. Although CIA officials reviewed
Livingstone's drug history and FBI background file, it does not
appear that the CIA made any objections to issuing Livingstone
at least three separate compartmented clearances.\676\ Records
the committee has now reviewed make it clear that the Clinton
White House gave Craig Livingstone access to the most
classified sensitive information.
---------------------------------------------------------------------------
\676\ CIA documents, located in committee files.
---------------------------------------------------------------------------
The committee was troubled by the ease with which
unsuitable candidates were given the highest levels of security
clearances. The CIA explained to the committee that it
authorized the clearances, including that of Livingstone,
because the White House made the requests.
Finally, even when the White House decided to upgrade the
security clearance process, Livingstone was given special
treatment again. Current White House Security Chief Charles
Easley testified that he did not review Livingstone's file when
he was updating the clearances of everyone at the White
House.\677\ Mr. Easley testified that even though he reviewed
the file of everyone else he worked with at the White House, he
declined to review Livingstone's file and approved him for a
security clearance in December 1995.\678\ This is the
individual the White House put in charge of the security office
when Craig Livingstone resigned.
---------------------------------------------------------------------------
\677\ Easley deposition, p. 72.
\678\ Id.
---------------------------------------------------------------------------
The lax and cavalier attitude the Clinton White House has
regarding security was evident from the day Kennedy and
Livingstone were placed in positions of responsibility at the
White House. Mrs. Clinton had a role in Kennedy's hiring. Mr.
Kennedy took full advantage of his connections to the President
and Mrs. Clinton, informing FBI liaison Bourke of the
relationship. Both Kennedy and Livingstone were unsuited to
this sensitive work given problems with their own backgrounds
and evidence of questionable conduct.
Despite complaints from the FBI and Secret Service about
inordinate delays and abuse of past processes, the White House
continued to allow unsuitable individuals to preside over the
office. The White House ignored FBI and Secret Service
concerns, and the office was eventually found to have
inappropriately gathered FBI background files on hundreds of
former Reagan and Bush officials.
The White House is at the center of policies and debates
that may determine matters of life or death, war or peace. For
the past 30 years, the White House has engaged in a careful
process of security clearances and background checks on
individuals to determine their suitability for positions in the
White House and throughout the executive branch.
The clearance and background process is designed to protect
the security of the President as well as the national security
of the country. One need only recall the case of Aldrich Ames
to realize what kind of problems can spring from a lack of
vigilance in security matters. As important as it is to have
solid procedures in place to guard against breaches of
security, the people who operate such procedures must be
carefully selected and remain above reproach. Clearly, that did
not happen in the Clinton White House where cronies and
political operatives were put in charge of these sensitive
matters.
Whether or not these events are shown to be a blunder, the
result of colossal incompetence, or whether they are
established to be more serious or even criminal, the casualness
with which this White House has approached many areas of
security and access provided a climate for either of these
troubling alternatives. The modus operandi of this White House
allowed persons of questionable backgrounds to remain in the
White House.
ADDITIONAL VIEWS OF HON. WILLIAM F. CLINGER, JR., HON. BENJAMIN A.
GILMAN, HON. CONSTANCE A. MORELLA, HON. JOHN L. MICA, AND HON. DICK
CHRYSLER
Nothing in the hearing record or the entire course of our
inquiry into this matter has established any improper contacts,
dealings, or relationship whatsoever, between FBI Director
Louis Freeh and former White House Security Director Craig
Livingstone.
Neither, is there any evidence of anything in the record of
our inquiry (particularly as relates to the subject matter of
the inappropriate disclosure by FBI General Counsel Howard
Shapiro to the White House), which indicates any intent
whatsoever by Director Freeh to protect the President or Mrs.
Clinton in this matter.
FBI General Counsel Shapiro's lack of judgement in an ill
advised disclosure to the White House, should not be viewed as
reflecting adversely on the professionalism or independence of
Director Louis Freeh, nor the many dedicated men and women of
the FBI, who proudly serve our Nation so well, each and every
day.
In addition, we recommend that in the future, all
supervisory, operational, and line positions, including that of
general counsel at the FBI, shall be filled solely by FBI agent
personnel.
Hon. William F. Clinger, Jr.
Hon. Benjamin A. Gilman.
Hon. Constance A. Morella.
Hon. John L. Mica.
Hon. Dick Chrysler.
MINORITY VIEWS OF HON. CARDISS COLLINS, HON. HENRY A. WAXMAN, HON. TOM
LANTOS, HON. ROBERT E. WISE, JR., HON. MAJOR R. OWENS, HON. EDOLPHUS
TOWNS, HON. JOHN M. SPRATT, JR., HON. LOUISE MCINTOSH SLAUGHTER, HON.
PAUL E. KANJORSKI, HON. GARY A. CONDIT, HON. COLLIN C. PETERSON, HON.
KAREN L. THURMAN, HON. CAROLYN B. MALONEY, HON. THOMAS M. BARRETT, HON.
BARBARA-ROSE COLLINS, HON. ELEANOR HOLMES NORTON, HON. JAMES P. MORAN,
HON. GENE GREEN, HON. CARRIE P. MEEK, HON. CHAKA FATTAH, HON. BILL K.
BREWSTER, HON. TIM HOLDEN, AND HON. ELIJAH E. CUMMINGS
We agree that the requests by White House staff for files
on former employees were wrong, and we have supported the
committee's efforts to investigate the reasons for and
circumstances surrounding the obtaining of these records from
the FBI. The issue for this committee is whether the files were
requested for political purposes with the intent of getting
damaging information on these former employees, or instead were
requested as the result of errors.
After taking sworn depositions from dozens of present and
former White House employees, the committee has uncovered no
evidence that the individual who requested the files had been
ordered to purposely obtain them by higher-ups in the Clinton
administration. Nor has it uncovered any evidence that anyone
higher than Craig Livingstone was aware that the files had been
improperly requested. Even more importantly, the committee has
no evidence that the files were improperly disclosed to anyone
outside the White House Personnel Security Office.
If the majority had issued an honest report by pointing out
the deficiencies of the Office of Personnel Security while
acknowledging the lack of evidence that it was anything more
than a bureaucratic mistake, we would have supported it. But
when the majority makes such reckless findings as that this
somehow ``leads to the possibility that the Clinton
Administration was attempting to prepare a political `hit
list','' without even a shred of evidence or testimony
supporting that charge, we can only conclude that honesty is
not in the majority's vocabulary. This report is yet another
blow to this committee's long tradition of oversight which is
honest, fair, non-partisan, and credible.
In addition, the majority's claim that the FBI files would
not have been revealed without the committee's threat of
contempt is disingenuous and inaccurate. The White House never
exerted a claim of privilege over the Dale FBI file, and the
majority report's allegation of White House stonewalling is no
more credible here than it was in the Travel Office report.
Further, the majority's shameless attack on FBI General
Counsel Howard Shapiro, a career, non-partisan law enforcement
professional with unimpeachable credentials, for actions which
were clearly appropriate, is outrageous and an embarrassment to
the committee. If the majority believes that Mr. Shapiro should
resign for disclosing what it claims was ``confidential law
enforcement information,'' then Chairman Clinger should also
resign for disclosing that very information in a public
statement on the House Floor. It is transparently obvious that
the majority is angry at Mr. Shapiro only because his efforts
to act in a fair and non-partisan manner thwarted its attempt
to score points in the press.
For these reasons, we strongly dissent.
We in the minority have addressed the problems identified
in the FBI's report, ``The Dissemination of FBI File
Information to the White House'' in order to guarantee that
this sort of potential invasion of privacy could not happen
again. We support the bill introduced by Ranking Minority
Member Cardiss Collins, H.R. 3785, the Background Security
Records Act of 1996, to ensure that FBI records containing
sensitive background security information provided to the White
House are properly protected for privacy and security.
The bill would amend both the Privacy Act and the
Presidential Records Act to enact procedural safeguards so that
individuals could be certain their confidential background
files would not be disseminated without their permission. If
the majority were truly interested in conducting responsible
oversight and addressing these types of problems, they would
support these types of meaningful legislative reforms. Instead,
they are intent on turning this serious issue into partisan
politics. The Republicans have also refused to hold even a
single hearing on the bill.
what the committee hearings revealed
The committee's hearings revealed a number of relevant
facts about the FBI files. We learned that it was standard
practice for each administration to engage in what is now known
as the Update Project--that is, the recreation of personnel
security files for holdover employees from the previous
administration. This was required, because each administration
removes all of its files when it leaves office. The procedure
for requesting files was to use a preprinted Xeroxed form with
the name of the White House Counsel typed at the top, but
requiring no signature. These forms date back 30 years to the
Johnson administration. This procedure was, as the FBI found,
ripe for abuse, and it now appears that these forms were
inadvertently used to obtain the FBI files on former employees.
The White House has taken unprecedented steps to change these
procedures and bring accountability to the process, but the
files were already requested.
Witnesses interviewed by the committee could only speculate
on the reasons for what happened. A common theme expressed by
Bush administration White House Counsel C. Boyden Gray and
Nancy Gemmell, a longtime-aide in the Personnel Security
Office, was that the use of detailees and interns with
insufficient background in security or name recognition was a
key problem.\1\ We agree. Security work is extremely sensitive,
but there appears to have been an extremely lax attitude in the
treatment of FBI files.
---------------------------------------------------------------------------
\1\ It should be noted that neither Ms. Gemmell nor Jane
Dannenhauer, Mr. Livingstone's predecessor, had any background in
security issues.
---------------------------------------------------------------------------
One important witness was Lisa Wetzl, who was the first to
discover that Anthony Marceca had requested ``too many files'',
meaning those no longer employed by the White House. Ms. Wetzl
notified her supervisor, Craig Livingstone, of that fact, and
proceeded to determine which of the files involved employees no
longer working in the White House. Although the files should
have been returned to the FBI, they were boxed and apparently
indexed and placed in the White House archives, where there is
no evidence they were seen again, with the apparent exception
of files for active employees mistakenly placed there.
Ms. Wetzl's testimony is extremely relevant, because she
has stated that when she worked on the Update Project after Mr.
Marceca, she requested a Secret Service list of employees
holding active passes. In her view, the list was out-of-date,
and required cross-checking with offices. She also recalls
seeing an out-of-date Secret Service list, which she believes
was requested by Ms. Gemmell, and used by Ms. Gemmell to
prepare requests to the FBI, and that the list may have had the
names of Marlin Fitzwater and James Baker.
On June 20, 1996, Secret Service witnesses testified before
the Senate Judiciary Committee that they did not believe the
list was generated by them, but the actual evidence suggests a
less clear picture. For example, during the committee's
depositions of Secret Service witnesses, it was noted that in
one case, the White House requested the previous report on a
person named Agin--``A'' ``G'' ``I'' ``N''. It now appears that
there was no such person. The correct individual was named
Hagin--``H'' ``A'' ``G'' ``I'' ``N''. It just so happens that a
Secret Service list from 1993 also listed the individual as
Agin, with a space rather than an ``H'' at the beginning of the
name.
The significance of this fact is that it suggests that the
White House Office of Personnel Security was in fact working
off of some Secret Service list, and not a list it generated.
This was further confirmed by Ms. Wetzl, who recalled both Ms.
Gemmell and Mr. Marceca working off a list with the distinctive
green and white computer paper used by the Secret Service.
The Senate hearing also showed other problems with the
Secret Service lists. For example, in what was described as a
``computer glitch'', names that were being deactivated from one
Secret Service passholder list were not automatically being
deactivated from another list. The committee also received a
list from the White House dated March 31, 1993, which may have
been generated by the Secret Service. That list is entitled
``E-Pass Possible Admin Holdover Passholders by Name'', and
includes among other names, George Bush, James Baker, and
Marlin Fitzwater.
In addition, the committee received a list generated in
February 1994 as part of an effort to develop a list of White
House staff for such things as invitations to the White House
Easter Egg Roll. That list has names such as Spencer Abraham
and James Baker as working in the White House. The source of
the names is listed as the Secret Service. A follow-up agenda
from a July 7, 1994, meeting between White House personnel and
Secret Service shows a complaint that former employees, such as
James Baker, continued to show up on Secret Service lists.
The other interesting fact about the FBI files requests is
that the requests were made for all other offices, such as GSA,
before any requests were made for White House staff. If there
were an underhanded effort to get the files on former White
House employees, presumably those files would have been
requested first and not last.
chairman clinger's disclosures
Ironically, the only public disclosure of an FBI background
file to date has been Chairman Clinger's disclosure on the
House Floor of the contents of the FBI file on Craig
Livingstone, which he was permitted to review by the FBI.
Contained within this file was the summary report by Special
Agent Dennis Sculimbrene that White House Counsel Bernard
Nussbaum told him that Craig Livingstone had the backing of the
First Lady, who was a friend of Livingstone's mother.
This tidbit was the first item of news from our
investigations and hearings on the FBI files that the chairman
deemed important enough to take to the House Floor. The
chairman's special order insinuated that Bernard Nussbaum,
Craig Livingstone, William Kennedy and the First Lady must have
lied, because they had denied this allegation.
Perhaps the chairman was just raising an issue for
investigation; but that could have been done in a letter to the
Independent Counsel. We can only conclude that the clear
purpose of the Floor statement was to plant in the minds of the
American people the unsubstantiated thought that the First
Family and all of their lawyers were lying about this matter.
Indeed, who after watching this special order wouldn't think
they were lying and raise the question of why an FBI agent
would write this note if it weren't true?
Yet, just like every other time that there has been a wild,
unsubstantiated accusation hurled at the occupants of the White
House, only half the facts were released. In this case, neither
House Members on the Floor nor the public who was watching were
given information on the credibility of the agent who had
written the note.
The allegation that Mrs. Clinton was behind the hiring of
Craig Livingstone and knew his mother was hardly news. Agent
Gary Aldrich, a friend and colleague of Mr. Sculimbrene, had
made the charge in the Wall Street Journal and in his widely
discredited book, Unlimited Access. The allegation had also
appeared in the Wall Street Journal on June 25, but in this
case, Mr. Sculimbrene was reported to have attributed the
remark not to Mr. Nussbaum, but to William Kennedy and Craig
Livingstone.
Then on July 15, in what the chairman described in his
letter to Ranking Minority Member Collins not as a deposition
under Rule 19 of the committee rules, which requires 3 days
written notice, but something called a ``sworn interview,'' Mr.
Sculimbrene told the majority staff that it was Mr. Livingstone
who actually told him this fact. He also said he did not put
the statement in Mr. Livingstone's background file.
Mr. Sculimbrene in fact has told numerous stories about how
he came to know this so-called fact. We might have never known
about the discrepancies in Mr. Sculimbrene's statements to the
majority staff in his interview, if the minority had not
insisted on getting the transcript, which the majority had
initially refused to provide. In assessing Agent Sculimbrene's
credibility, we must also look at an FBI memo in the
committee's possession, in which Special Agent David Bowie
stated that Mr. Sculimbrene's behavior was ``abnormal and
indeed irrational'' in a conversation with him. Agent
Sculimbrene, who is described in the memo as a close personal
friend of fired Travel Office head Billy Dale, is recalled as
``voicing very bitter political feelings against the Clinton
White House.'' Agent Bowie expressed his concern that
Sculimbrene, who appeared as a defense witness at the Dale
trial, might ``provide erroneous testimony.''
We cannot help but wonder why, if this allegation was truly
troublesome, the committee's investigators did not go to Craig
Livingstone's mother, Gloria, to ask her directly whether she
knew the First Lady. She has subsequently denied that she does.
Perhaps a cursory review of her background could have revealed
if there were any truth to the allegation. We suspect the
reason was obvious--they knew she would deny it, and they knew
that the more they investigated this matter, the more
implausible the allegation would become.
We must also address the issues of whether the FBI should
have told the White House about the existence of this summary
in the file, the majority's finding that FBI General Counsel
Howard Shapiro provided confidential FBI law enforcement
information to the White House, and the majority's shameless
demand that he resign.
First, it is obvious that the reason the majority was upset
about the notification is simply that the White House had an
opportunity to present its side of the story at the same time
the chairman went to the Floor, as opposed to a day later.
There is little doubt that the other side of the story would
not have been released by the chairman and become available to
the White House.
Second, the notion that the information was confidential
law enforcement information which should not have been shared
with the White House is absurd. The information, as is standard
practice, was gathered at the specific request of the White
House in order to determine whether Mr. Livingstone was
suitable for employment. It was not part of some sort of
criminal investigation. A summary of that information,
including any derogatory information, had already been provided
to the White House. The information which Mr. Shapiro
communicated to the White House was not derogatory, nor was it
confidential as far as the White House was concerned.
Third, the statement that Mr. Shapiro notified the White
House about the information before the committee was allowed to
review it is simply not true. As Mr. Shapiro testified at the
August 1, 1996, hearing, he had offered to make it available to
the majority, but they had rescheduled:
My intent was to notify roughly simultaneously both
the committee and the White House, for whom this
information had originally been gathered. Knowing that
committee majority staff was due to examine the
materials that same afternoon, I placed a call to the
Justice Department, where I advised the Chief of Staff
to the Deputy Attorney General of the information and
of my intent to advise the White House Counsel's
office. I then called the Counsel's office, and spoke
with Deputy Counsel to the President, Kathleen Wallman.
Because of a last minute rescheduling by the committee
staff of which I had been unaware, the majority staff
did not in fact see the information until the following
day.
In no way did Mr. Shapiro withhold the information, as
claimed by the majority.
Fourth, before the FBI took any action with this
information, it asked the one law enforcement entity which
might have an interest, the Independent Counsel. As Mr. Shapiro
testified, the Independent Counsel had no problems with
Congress reviewing the files, nor did they ask that any
conditions be placed upon its release, which could have
included release to the White House. They did not even want to
review the file. To the extent Mr. Nussbaum would have been
testifying to a Grand Jury, the issue would not have been who
hired Craig Livingstone.
Finally, Chairman Clinger's Floor statement criticized two
FBI agents for going to Agent Sculimbrene's home and telling
him that the White House was unhappy with what he had written
about Mr. Nussbaum's interview. Once again, the question is
what type of investigation did the committee do to determine
the veracity of this charge against the two agents before
making these public charges. Mr. Shapiro testified that the
agents in question denied the allegation:
At no time did the agents tell agent Sculimbrene that
the White House was unhappy and concerned about this
particular interview. No such thing occurred.
Therefore, it appears that this may be one more case in which
Agent Sculimbrene's account of a conversation is disputed.
The concern of the FBI that in light of the denials, Agent
Sculimbrene's report may have been inaccurate, was a real one.
Just recently, FBI Agent Halbert Harlow was convicted of
falsifying over 50 White House interviews.
When this committee began its hearings into the FBI files,
we in the minority fully concurred. We too wanted to get to the
bottom of how and why the files were requested, and what was
done with them. However, as the committee's investigation
increasingly demonstrated that the requests were in fact a
bureaucratic error and not a sinister plot, the committee
hearings kept shifting their focus.
revealing confidential fbi information
The majority has repeatedly disclosed sensitive, internal
FBI files, despite the majority's criticism of the White House
for its handling of FBI records. As previously discussed, when
Chairman Clinger went to the House Floor on July 25, 1996, he
divulged certain contents in the FBI file of Craig Livingstone.
The divulging of confidential derogatory information found in
that file is exactly the concern that the committee had
expressed concerning the White House request of FBI files of
former administration employees. Ironically, the committee has
uncovered no evidence that the White House ever disseminated
the information contained in those FBI files. On the other
hand, the chairman did.
The disclosure stands in stark contrast to his comments to
Ranking Minority Member Collins in a letter dated July 15,
1996, in which he wrote: ``I have been extremely reluctant to
directly review FBI files. It is the abuse of such files by the
Clinton White House which initiated this congressional
investigation.'' He then stated that he ``would determine what,
if any, information may be shared with the Members of this
Committee.'' Instead of consulting with any member of the
committee, the speech was made on the House Floor before the C-
Span public.
Even before the chairman went to the House Floor, the
contents of Mr. Livingstone's files were in the press. An AP
story of 4:39 p.m. on July 25, 1996, describes an FBI agent's
notes alleging that he was told by Bernard Nussbaum that Mr.
Livingstone had been recommended by the First Lady and that
Mrs. Clinton knew his mother. Before rushing to the Floor to
raise questions about the integrity of the First Lady, Mr.
Nussbaum, and Mr. Livingstone, the committee might have done at
least a minimal amount of investigation.
Minimum fairness to the individuals would have required
full disclosure of the trustworthiness of Special Agent
Sculimbrene. Among the documents requested by subpoena was a
memo by SSA David Bowie, dated August 7, 1995, who recounted a
discussion he had with Agent Sculimbrene concerning the
prosecution of Billy Dale (Document FBI-00005437-00005442):
It became immediately apparent that SA SCULIMBRENE
held extremely intense feelings about the indictment of
subject BILLY DALE whom he described as a personal and
professional friend. It became equally apparent that SA
SCULIMBRENE blames the CLINTON WHITE HOUSE and the FBI
for the predicament in which subject DALE finds
himself. During the course of a sometimes heated
conversation between the writer and SA SCULIMBRENE, it
became equally apparent that SA SCULIMBRENE has allowed
both his personal and political feelings to obscure his
judgement relative to this entire matter.
* * * * *
Specifically, SA SCULIMBRENE erroneously stated that
he had provided a memo to the writer in the White House
Travel Office matter allegedly containing the
information relevant to the inquiry. . . . The writer
never received a memo from SA SCULIMBRENE dealing with
the above subject matter.
* * * * *
In fact, the information provided by SA SCULIMBRENE
during conversations with the writer merely implies
that he has very strong political views involving the
CLINTON Administration and a close personal
relationship with the subject of this matter, BILLY R.
DALE. . . .
The writer is very concerned about the overall
temperament and demeanor of SCULIMBRENE reflected on 8/
4/95. While the writer is not in a position to render
Psychological judgements/conclusions about others, it
is the opinion of this writer that SA SCULIMBRENE's
conduct/behavior, on 8/4/95, is clearly outside the
norm. The writer notes that SA SCULIMBRENE was
involved, approximately a year ago, in a serious
accident which almost cost him his life. It is
noteworthy to point out that during the course of the
8/4/95, discussions with the writer, SCULIMBRENE
commented, while pointing towards his head, that he
could get away with anything because ``I am
handicapped''.
* * * * *
SSA BOWIE is very concerned that SA SCULIMBRENE has
allowed his personal and political feelings toward the
CLINTON White House to destroy his objectivity in
dealing with this issue. It is equally perplexing to
understand why any FBI Agent would allow his personal
relationships with a subject of a criminal probe to
become this involved as such behavior constitutes, as a
minimum, the appearance of a conflict of interest. The
writer is persuaded that SA SCULIMBRENE is
contemplating either testimony before a Congressional
Committee and/or plans to serve as a defense witness
for subject BILLY DALE. Should he decide to do this,
his credibility as a witness and as a FBI Agent will be
destroyed in the aftermath. The situation detailed
above is potentially embarrassing for the FBI and is
potentially a disaster for SA SCULIMBRENE.
* * * * *
It is highly suggested that WMFO management look at
the possibility that SA SCULIMBRENE may be in need of
EAP and/or some form of emotional support. The writer
is persuaded that SCULIMBRENE's behavior is abnormal
and indeed irrational. In addition, SA SCULIMBRENE
should be made aware of the consequences should he
decide to provide erroneous testimony in an effort to
help his friend, and C-7 subject, BILLY R. DALE.
Instead of alerting House Members and the public that the
FBI agent whose notes conflict with the testimony of Mr.
Nussbaum and Mr. Livingstone was a close personal friend of
Billy R. Dale, and whose credibility was challenged by another
FBI agent, Chairman Clinger was silent, leading an average
listener to assume that Mr. Sculimbrene was an ordinary FBI
agent. Chairman Clinger might have disclosed that Mr.
Sculimbrene was an associate of Mr. Gary Aldrich, whose
credibility on White House matters has been, to put it mildly,
called into question.\2\ He also never stated that Agent
Sculimbrene was quoted in the Wall Street Journal as stating
that he knew of the purported relationship between Mr.
Livingstone's mother and the First Lady from Mr. Livingstone
and Mr. Kennedy (June 25, 1996), and that he had told Senate
investigators that Mr. Kennedy was the source of his
information.
---------------------------------------------------------------------------
\2\ It is ironic that in light of the majority's repeated claims of
stonewalling by the administration, Mr. Aldrich refused to answer under
oath more than 30 questions asked by minority counsel regarding
statements he made in his book. Rather than assisting in this
committee's efforts to obtain relevant information regarding the
credibility of a witness, majority staff also obstructed the minority's
efforts to have these questions answered by Mr. Aldrich.
In a letter dated August 2, 1996, Ranking Minority Member Collins
subsequently requested Chairman Clinger to instruct Mr. Aldrich to
respond to these 36 questions. To date, he has not responded.
---------------------------------------------------------------------------
The majority does not merely raise questions when making
charges such as those made in Chairman Clinger's special order.
If the sole intent was to bring this to the attention of the
Independent Counsel, a private letter to Mr. Starr would have
sufficed.
But this was not the only example of the majority's rushing
to a partisan judgment without conducting even a minimal amount
of investigation. On June 5, 1996, Chairman Clinger held a
press conference detailing a request for Billy Ray Dale's FBI
background file that bore Mr. Nussbaum's typed name. The
chairman alleged that ``At the very least, there is a strong
implication President Clinton's counsel acted unethically in
requesting confidential background checks of a former
employee.'' According to an article distributed by the
Associated Press, ``U.S. Rep. William Clinger, R-Pa., suggested
the written request might be a false statement that could be
prosecuted as a felony.'' Subsequent investigation quickly
established that Mr. Nussbaum, like his predecessors, never
reviewed such requests.
As Mr. Nussbaum testified at the committee's June 26, 1996,
hearing:
So, on the basis of a printed form, Mr. Chairman, you
told the country, Mr. Chairman, that, at best, I was
unethical as White House Counsel; at worst, I was a
felon. . . . But you had no member of your staff call
me, to ask me a simple question--did I ever request
Billy Dale's FBI files six months after he was fired?
Was I really trying to dig up dirt on Billy Dale when
he was being investigated by the Justice Department?
Those notions are absurd on their face. They are false.
But no one called to ask. (Emphasis added).
Mr. Nussbaum then testified under oath that he had no
knowledge that Mr. Dale's or any other former White House
employee's FBI files had been requested, and that he certainly
did not order copies of FBI files.
The chairman responded by saying that the ``documents speak
for themselves,'' and dismissed Mr. Nussbaum's demand for an
apology by suggesting that he was attempting to ``demonize''
him. We believe this is a wholly inadequate response. The
chairman very publicly--and wrongly--accused Mr. Nussbaum of
possible criminal behavior, without conducting even a minimal
amount of investigation. Whether those accusations were
innocent or intentional, the record clearly demonstrates that
they were false.
When we in the minority requested, in a letter dated June
28, 1996, that the chairman take the fair and decent course by
admitting that he overreached and apologizing to Mr. Nussbaum,
he once again refused. Instead, he replied:
. . . (A)s you will see, I never made reference to
Mr. Nussbaum as a ``felon,'' as he has alleged. In fact
when I was specifically asked, ``How much trouble is
Mr. Nussbaum in?'' I stated, ``Well, I think it's
premature to say whether, you know, whether he's in any
trouble.''
However, the transcript of that press conference, provided
by the chairman himself in his reply, confirms that the
chairman did make those statements about Mr. Nussbaum to the
press:
At the very least, there is a strong implication
President Clinton's counsel acted unethically in
requesting confidential background checks of a former
employee. At the very worst, the request may have
violated the Privacy Act . . .
The chairman has yet to admit his error or to apologize to
Mr. Nussbaum. Nor has he apologized to Presidential Advisor
George Stephanopoulos for partisan leaks suggesting that Mr.
Stephanopoulos was somehow responsible for Mr. Livingstone's
position as Director of the Personnel Security Office without
releasing other information in the committee's possession
demonstrating that that was not the case.
who hired craig livingstone?
The majority is obsessed with determining who hired Craig
Livingstone, as if that startling mystery was the key to
unraveling their entire conspiracy theory. However, the records
provided to the committee, if the majority would take the time
to read them, reveal exactly how Mr. Livingstone was hired. The
answer is much less exciting than the majority would have us
believe.
The resume of David Craig Livingstone lists his current job
as ``Presidential Inaugural Committee, Director of Security''
from November 1992 to present. Prior to that he lists his
occupation as ``President-Elect Clinton and Vice-President-
Elect Gore, Lead and Site Lead Advance'' in November 1992.
Prior to that his job is listed as ``Senior Consultant to
Counter-Event Operations, Clinton/Gore '92'' from October, 1991
to November 1992.
At the top of the resume is a handwritten notation stating
``Sponsored by Eli Segal.'' Mr. Segal, who was a campaign
manager in the Clinton Campaign is also the first reference in
Mr. Livingstone's resume, and is listed as ``Chief Financial
Officer, Clinton-Gore Presidential Transition Team.''
On February 8, 1993, Mr. Livingstone signs a ``Declaration
of Appointee'', which is a form used in determining fitness for
employment.
The job of Director of the Office of Personnel Security is
supervised by the Office of White House Counsel. In a
memorandum from David Watkins, Assistant to the President for
Management, to Bernard Nussbaum, Assistant to the President and
Counsel, and Vincent Foster, Deputy Assistant to the President
and Deputy Counsel, dated February 16, 1993, Watkins lays out
the budget and full-time employees, which are to be proposed
for the Counsel's Office budget.
It appears from the memo that Watkins had authorized 28
slots at $1,100,000. The Counsel's Office had responded with a
budget of 25 slots at $1,100,000 along with a proposal to shift
the three employees of the Security Office, other than its
head, to the Personnel account. Watkins responds that if the
slots are shifted, the Office of White House Counsel must
reduce its budget by $85,000.
On February 17, 1993, Craig Livingstone sends a memo to
William Kennedy, Associate Counsel to the President, describing
the functions of the Security Office.
On February 18, 1993, Kennedy sends a memo to Vincent
Foster attaching Livingstone's memo. He writes, ``The result of
all of these functions is that the Office moves much paper. I
need to discuss this subject with you when you have time.''
On February 23, 1993 Kennedy sends a memo to Nussbaum
describing the major functions of the White House Security
Office, apparently based upon Livingstone's memo.
On February 24, 1993, Nussbaum and Foster (now also joined
by William Kennedy, Associate Counsel to the President) respond
to the Watkins memo taking issue with their allocation. They
note that they propose to spend just $91,000 on the three
assistants (compared with $121,000 under the Bush
administration) and just $45,000 on the head of the office
(compared with $67,000 for the incumbent), apparently implying
that they should not have their budget reduced by $85,000 in
light of their savings.
On March 1, 1993, David Watkins sent a memo to Bernard
Nussbaum stating, ``I understand from your budget that you
believe the position currently held by Jane Dannenhauer,
Assistant to the Counsel to the President for Security, should
be part of your budget and should be compensated at a rate of
$42,000 per year. Please let me know when you have identified
the new staffer to fill Ms. Dannenhauer's position. At the
moment, her salary of $70,255 is counting against your budget.
But this amount will be reduced when you replace Ms.
Dannenhauer.'' Watkins also consents to giving the Counsel the
full $1,100,000 for 25 slots.
On March 9, 1993, in a memo to David Watkins from Bernard
Nussbaum and Vincent Foster, they state that ``Craig
Livingstone was hired in February as Assistant Counsel to the
President for Security with a salary of $45,000, not $42,000 as
originally budgeted.''
On March 10, 1993, William Kennedy sends a memo to David
Watkins. It states ``This is a request that the start date of
the employment of two individuals employed in the White House
Security Office be established as of the following dates: David
Craig Livingstone; Title: Assistant to the Counsel to the
President (Security); Effective Employment Date: 2/8/93; Annual
Salary $45,000.'' The other individual is Mari Anderson, who is
listed as Security Assistant with an effective employment Date
of 2/15/93. The memo states, ``Mr. Livingstone and Ms. Anderson
have been on the job and working since the start dates
indicated above while the budget parameters were being
resolved.''
A document entitled, ``The White House Office, Request for
Personnel Action'' dated 3/11/93, bears the initials ``DW/CL''
(presumably David Watkins; the CL may also be CC). It requests
Livingstone be put on the payroll retroactively to 2/8/93.
A document entitled, ``Notification of Personnel Action''
with an approval date of March 11, 1993, shows that Mr.
Livingstone has been placed on the payroll retroactively to
February 8, 1993, as Assistant to the Counsel to the President
(Security). The document bears the typed name of Mary Coutts
Beck, Acting Director of PMO, along with some form of an
initial.
It would appear that Mr. Livingstone's recollection of the
events leading up to his hiring, described when he appeared as
a witness, are generally accurate. He apparently moved into the
White House by way of the campaign and the Inauguration, where
he served as Director of Security for the Inaugural Committee.
His resume shows he was sponsored by Eli Segal, a campaign
official and involved in the transition.
Mr. Livingstone apparently came to the White House on
February 8, 1993 on an unpaid basis, and appears to have spent
his first week reviewing the operations of the Security Office.
The work would appear to have been done on behalf of William
Kennedy, since the memo of February 17, 1993 was sent from
Livingstone to Kennedy.
It appears that during the week from February 16, 1993 to
February 24, 1993, the Counsel's Office was primarily
interested in achieving a larger budget by moving the personnel
from the Security Office (except for its head) onto the payroll
of the Personnel Office.
Eventually, in memos to David Watkins dated March 9, 1993,
and March 10, 1993, Nussbaum, Foster, and Kennedy all take
responsibility for the hiring of Livingstone. Watkins on the
subsequent day takes the final action resulting in
Livingstone's hiring retroactive to the date of his declaration
on February 8, 1993.
Hon. Cardiss Collins.
Hon. Henry A. Waxman.
Hon. Tom Lantos.
Hon. Robert E. Wise, Jr.
Hon. Major R. Owens.
Hon. Edolphus Towns.
Hon. John M. Spratt, Jr.
Hon. Louise McIntosh Slaughter.
Hon. Paul E. Kanjorski.
Hon. Gary A. Condit.
Hon. Collin C. Peterson.
Hon. Karen L. Thurman.
Hon. Carolyn B. Maloney.
Hon. Thomas M. Barrett.
Hon. Barbara-Rose Collins.
Hon. Eleanor Holmes Norton.
Hon. James P. Moran.
Hon. Gene Green.
Hon. Carrie P. Meek.
Hon. Chaka Fattah.
Hon. Bill K. Brewster.
Hon. Tim Holden.
Hon. Elijah E. Cummings.