I. The Contents of Vincent Foster's Office at the Time of his Death
The full contents of Mr. Foster's office at the time of his death will perhaps never be known. That is so because Mr. Nussbaum, in cleaning out the files in Mr. Foster's office following his death, did not prepare an inventory of materials reviewed or removed. Stephen Neuwirth did prepare an inventory of certain files in Mr. Foster's office, but only after Mr. Nussbaum and Margaret Williams had removed certain files to President and Mrs. Clinton's private quarters on the third floor of the White House Residence.
Deborah Gorham, Mr. Foster's secretary, testified that, in her first trip into Mr. Foster's office after his death, she opened the drawer containing the Clintons' personal documents. "I saw Pendaflex folders and file folders, and I did not see an index that normally would have been there listing the names of the files."(242) According to Ms. Gorham, she maintained "indexes for all file drawers, that I recall, and it listed the content, the names of each of the folders in each drawer."(243) She did not see the index in the drawer, where she normally kept it.
The Special Committee took steps to locate this missing index. The White House produced three indices of files in Foster's office. A six-page index is dated July 22, 1993, on the first page. The final page of the index contained the following listing:6
First Family - SF 278
First Family - 1994 Income Tax
First Family - General
HRC - CLE/Arkansas Law
First Couple - Blind Trust
First Family - Arkansas Home
POTUS - Arkansas Office
WJC - Passport
WJC - Papers
First Family - SF 278 pre-POTUS(244)
The White House represented to the Special Committee that this index "was in a box identified by Tom Castleton as containing documents from Cabinet I of Mr. Foster's office."(245) Ms. Gorham, however, testified that the document is not one that she would have created. "Certainly the typeface, the font and the style and the names of the subjects are familiar, but on your first entry where it reads `First Family 1994 Income Tax,' the word `Returns,' which should be, I believe, a part of that sentence after `Tax,' has been returned to the left margin."(246) Raising the specter that the index had been altered, Ms. Gorham testified that she would not have formatted her document in such a fashion.(247)
The White House produced yet another six-page index, which was found apparently "in a box identified by Mr. Castleton as containing materials from Ms. Gorham's desk."(248) The last page of this index contained the same list of files as in the first index described above.(249)7 However, the format of the list is different. "First Family 1994 Income Tax Returns" and "HRC - CLE/Arkansas Law License" are each typed on one line, without left returns breaking up the entries--a format consistent with the way Ms. Gorham would have maintained the document. Although the index "is consistent with the typeface and certainly the names of the subjects and the type font that was used," Ms. Gorham was not sure if she had prepared the document.(250) This second index, like the first, was dated July 22, 1993, on the first page. Ms. Gorham testified that "on the White House system, that date would have had to have been manually entered."(251) Ms. Gorham also testified that she would not have revised the index after Mr. Foster's death,(252) and that she did not revise the index on July 22, 1993.(253)
Neither index contained any reference to a file on Whitewater Development Corporation. According to Ms. Gorham, she created her index file in the first two weeks of April, several months prior to Mr. Foster's death,(254) and the index listed all the files in the drawer containing the First Family's personal documents.(255) She also remembered that the Whitewater file was among those in Foster's office at that time.(256)8
The third index(257) produced by the White House listed, among other things, the same ten files contained in the other two indices, but in a slightly different order and with an additional notation for certain files:
POTUS - SF 278
First Family - 1994 Income Tax Returns (removed)
HRC - CLE/Arkansas Law License (removed)
First Couple - Blind Trust (removed)
First Family - Arkansas Home (removed)
WJC - Papers (removed)
First Family - SF278 pre-POTUS (removed)
Clinton Mansion (removed)
POTUS - Arkansas Office
WJC - Passport(258)
This index, labelled "VWF - Existing Files" on the first page, contained the following line on the last page: "Updated 10/25/93". Like the other two indices, it did not contain any reference to a Whitewater file. At the Special Committee's request, the White House conducted a search of the back-up disks and tapes of Ms. Gorham's files, downloaded when she left the White House in late 1993. The third index was among the files contained in those disks and tapes, and the file directory information indicated that it was last updated on 10/25/93 at 2:14 p.m. The first and second indices, however, were not among the files in Ms. Gorham's computer at the time it was downloaded. An analysis of latent data on the computer's hard drive by an FBI expert yielded no additional useful information.(259)
Ms. Gorham testified that she did not see the index she maintained for the Clintons' personal files in Foster's office on July 22, nor anytime thereafter.(260) The Committee was never able to ascertain what happened to this index -- a critical piece of evidence concerning the contents of Mr. Foster's office at the time of his death.
When Mr. Nussbaum reviewed documents in Mr. Foster's office on July 22 before Justice Department officials, he did not identify every document in the office, even generically, for the law enforcement officers. His scatter-shot identification process frustrated the officers.
The following colloquy occurred at the Special Committee's August 1, 1995, hearing:
Mr. Giuffra: Do you believe that Ms. Nussbaum described every document in Mr. Foster's office?
Mr. Markland: No, sir, I don't.
Mr. Giuffra: So he only identified some of the documents that were contained in Mr. Foster's office?
Mr. Markland: Yes. Or he would go through a file drawer and just broadly say that they were strictly White House business.(261) Agent Salter corroborated Mr. Markland's testimony, telling the Special Committee: "No, I don't believe he had looked at everything in the office."(262) Mr. Nussbaum maintained, however, that he described every file in the office, including the Clintons' personal files. "I said these were Clinton personal files. I said these involve investments, taxes, other financial matters and the like. Included was a file on the Clintons' Whitewater real estate investment."(263)
Two persons kept careful notes of the document review on July 22. Michael Spafford took nine pages of handwritten notes apparently listing the files and documents that Mr. Nussbaum called out during the meeting. His meticulous notes listed, for example, paper clips and scotch tape from Vince Foster's left drawers, and the contents of Mr. Foster's trash bag.(264) Likewise, Cliff Sloan took 16 pages of notes during the meeting.(265) The notes taken by Mr. Sloan, which he later typed up,(266) tracked Mr. Spafford's notes, but at times provided some more detail both in the number of items listed and in the description of each item. Neither set of notes recorded the specific name of the files or any description of the documents eventually transferred to the White House residence and later to Williams & Connolly.
Senator Kerry specifically questioned Mr. Nussbaum about files located in Mr. Foster's credenza. Mr. Nussbaum testified that he reviewed all of the files in the credenza and described them to the law enforcement officials. "I said this is a tax file, or this is an investment file, like that. I didn't describe every piece of paper in the file. I would flip through the file to see if there's a suicide note or extortion note, but I would give a general description of the file and I would flip through the file."(267)
Mr. Spafford's and Mr. Sloan's notes of Mr. Nussbaum's review, however, cast doubt on Mr. Nussbaum's testimony. Mr. Nussbaum provided detailed descriptions of a number of items in the credenza, while identifying the Clinton personal files--apparently the bulk of the files in the credenza--generally as "matters re First Family."(268) Following are Mr. Spafford's handwritten notes of what Mr. Nussbaum described in the credenza:
Credensa: on R
matters re First Family
mostly files re GC matters
notebooks on prospective nominees.
notebook re jud nominees
notebk re St. Justice
copy of foreword to bk Ron Kennedy
Fed rules of Civ Pro
Bk on Mkt Liberalism
3/18 letter re posters of Pres.
card from friend(269)
Although Mr. Sloan's typed notes did not identify the various locations, the listing was similar to Mr. Spafford's: Work OrdersFinanc disclosure
Mr. Nussbaum claimed that he had no knowledge that Mr. Foster was working on any matter involving Whitewater.(272) Mr. Nussbaum emphasized that "[t]he Whitewater matter, which subsequently became the focus of so much attention, was not on our minds or even in our consciousness in July 1993."(273) He repeated that although Whitewater had surfaced briefly during the 1992 campaign, "in 1993, Whitewater was not on my screen, nor, as far as I know, was it the subject of discussion in the White House. And if it was, it was something I would have known."(274)
Evidence obtained by the Banking Committee during the summer of 1994 flatly contradicts Mr. Nussbaum's testimony. Resolution Trust Corporation ("RTC") Senior Vice President William H. Roelle testified that, upon taking office, former Deputy Secretary of the Treasury Roger Altman directed the staff to inform him of all important or potentially high-visibility issues.(275) According to Mr. Roelle, on or about March 23, 1993, he told Mr. Altman that the RTC had sent a criminal referral mentioning the Clintons to the Justice Department.(276)
The White House produced files to the Banking Committee showing that Mr. Altman immediately sent Mr. Nussbaum two facsimiles about Whitewater. The first facsimile, sent on March 23, 1993 with a handwritten cover sheet, forwarded an "RTC Clip Sheet" of a March 9, 1992 New York Times article with the headline, "Clinton Defends Real-Estate Deal."(277) The article reported the responses that Bill Clinton, then a presidential candidate, offered to an earlier Times report detailing the Clintons' investment in Whitewater and their ties to Jim and Susan McDougal.
The second facsimile from Mr. Altman to Mr. Nussbaum, sent the next day, March 24, 1993, forwarded the same article that was sent the day before and portions of the earlier Times report--an article dated March 8, 1992, by Jeff Gerth entitled "Clintons Joined S&L Operator in an Ozark Real-Estate Venture," which originally broke the story in the news media.(278)
According to the report of the Banking Committee on the communications between officials of the White House and the Treasury Department:
Mr. Altman testified that he did not recall having sent either facsimile to Mr. Nussbaum. Mr. Nussbaum testified that he did not recall having received either facsimile from Mr. Altman. Mr. Altman and Mr. Nussbaum both testified that they had no recollection of having spoken to one another during March 1993 about the articles contained in the facsimiles or the subject of those articles. Nevertheless, Mr. Altman and Mr. Nussbaum both testified that the facsimiles were apparently sent and received by their respective offices.(279)
Before the Special Committee, Senator Bond asked Mr. Nussbaum specifically about the apparent contradiction between his assertion that he had no knowledge of Whitewater at the time of Mr. Foster's death and the existence of Mr. Altman's facsimiles. Mr. Nussbaum maintained that he did not know of the facsimiles.(280) He testified that he first heard of Whitewater in late September 1993.(281) "So, in July of 1993, I had no knowledge and no memory of receiving a fax from Roger Altman, and Whitewater, as I said in my statement, was not on my mind nor, do I believe, on anyone else's mind in the White House in July of 1993."(282)
There is further evidence, however, that Mr. Foster was not the only White House official working on personal matters for the Clintons involving Whitewater. Until July of 1993, Ricki Seidman was Deputy Assistant to the President and Deputy Director of Communications. She reported to the FBI in 1994 that she and Mr. Foster had worked together on Whitewater issues before his death:
Seidman was asked about FOSTER's involvement with Whitewater. She said the only Whitewater issue she could recall was in April, 1993 in connection with the CLINTONs tax returns. The tax returns show that the CLINTONs had divested themselves of their interest in Whitewater. SEIDMAN's involvement was from a "communications perspective".(283) Ms. Seidman explained that she discussed various options with Mr. Foster for treating the transaction on the Clintons' 1992 tax returns. Ms. Seidman confirmed notes found in Mr. Foster's office at the time of his death summarizing the three options under consideration: (1) report a loss on the Whitewater investment; (2) not report any gains or losses; or (3) declare a $1000 gain to the Clintons from their transfer of all Whitewater stock to Jim McDougal in December, 1992.(284)
In addition, SBA Associate Administrator Wayne Foren testified that, in early May 1993, he briefed Erskine Bowles, the new SBA Administrator about the agency's ongoing investigation of David Hale's Capital Management Services because the case involved President Clinton.(285) Shortly thereafter, Mr. Bowles told Mr. Foren that he had briefed White House Chief of Staff Mack McLarty about the case.(286) Although Mr. Bowles did not recall being briefed by Mr. Foren about Capital Management(287) or talking to Mr. McLarty about the case,(288) Mr. Foren's account was corroborated by his deputy, Charles Shepperson.(289) Mr. McLarty's calendar indicated that Mr. Bowles had two meetings with Mr. McLarty at the White House in early May 1993.(290)
When asked why Mr. Nussbaum prevented law enforcement officials from looking at documents in Mr. Foster's office on July 22, Detective Markland replied: "In my mind, at this time, I believe he was afraid we would have uncovered some indication of the Whitewater situation and other things that Mr. Foster was involved with that are just now coming to light."(291)
Mr. Nussbaum claimed that he did not seek to conceal damaging information about the Whitewater matter. In his view, the groundswell of interest in the handling of documents after Mr. Foster's death resulted from "the unfair linkage of two separate, disparate events,"(292) the way he reviewed and handled documents in Mr. Foster's office and the emergence of the Whitewater investigation in late 1993.(293)
Yet, as early as the spring 1993, White House officials expected the then-dormant Whitewater issue to reemerge in the media. According to the FBI report of Ms. Seidman's interview, in April 1993, "it was believed the tax returns would bring the Whitewater issue into the `public domain again'. SEIDMAN said there was discussion regarding the `soundest way' to seek closure to the issue."(294)10 In addition to Ms. Seidman's sworn statement, common sense casts doubt on Mr. Nussbaum's testimony that Whitewater was not on the White House's radar screen in 1993. Whitewater was a major issue in the 1992 campaign, and the Clintons went to the extraordinary step of retaining an outside attorney to issue a report on the matter. The "unfair linkage," in Mr. Nussbaum's words, so obvious when investigations relating to Whitewater were reported later in 1993, was never made in the weeks following Mr. Foster's death precisely because Mr. Nussbaum concealed any mention of Whitewater from law enforcement officials. There is little doubt that Mr. Nussbaum foresaw the embarrassment and political liability of such a linkage between Mr. Foster's death and Whitewater when he examined the documents in Mr. Foster's office. It is against this backdrop of motive that the events and actions following Mr. Foster's death must be examined.
II. July 20, 1993 A.
The Discovery of Mr. Foster's Body.
At about 5:30 p.m. on July 20, 1993, the driver of a white utility van stopped at Fort Marcy Park off the George Washington Parkway in Virginia to relieve himself.(295) The man parked his car next to a white two-door Honda with a blue interior and Arkansas plates.(296) He walked about 200 yards away from the parking lot. As he was urinating, the man noticed the body of a white male wearing a white dress shirt and grey pants.(297) Traces of blood were visible on the man's face, and the right shoulder was stained light purple.(298)
The man then returned to his van to find a telephone.(299) He drove to nearby Turkey Run Park, where he found two uniformed Park Service employees.(300) He told the Park Service employees that he had found a body and asked one of them to call the police.(301) One of the Park Service employees walked to a nearby telephone and called the police.(302)
The Fairfax County Public Safety Communications Center received a 911 call at approximately 6:00 p.m. on July 20, 1993, reporting a dead body lying near a cannon in Fort Marcy Park.(303) The dispatcher relayed this information to the Park Police and the Fairfax County Emergency Response Team.(304) Park Police Officer Kevin Forshill responded to the call from his post in Langley, Virginia.(305) Officer Forshill and two medical technicians searched the area near the two cannons, while another group of medical technicians searched elsewhere in the park.(306) Near the second cannon, Officer Forshill found the body.(307) He then notified the dispatcher and requested detectives to be at the scene.
Park Police investigators Renee Apt, Cheryl Braun, and John Rolla responded to Officer Forshill's call at 6:35 p.m.(308) Sergeant Braun, the senior investigator, assigned Detective Rolla to investigate the death scene while she examined the parking lot. Their preliminary view was that Mr. Foster's death was a suicide.(309) Under standard procedure, however, the Park Police treated the investigation as a possible homicide. The Park Police continued to treat the investigation as a possible homicide until August 10, 1993, when the Park Police officially ruled Mr. Foster's death a suicide.(310)
In a death investigation, standard procedures called for investigators to define the crime scene and to prevent any unauthorized access to the area.(311) In the case of a suspected suicide, the investigators considered relevant "the person's home, their office, their car, places where they frequent would be relevant; any place where they would leave information about them, their state of mind, a place for them to leave their note, if they leave a note." (312) As a necessary precaution, such places should be preserved "as a matter of routine police procedure" in order to ensure the integrity of the evidence.(313) Sergeant Braun thus immediately requested that the main gate of the fort be closed to prevent entries into the area.(314)
When Detective Rolla arrived at the death scene, the area around Mr. Foster's body was taped off.(315) The officers who first arrived on the scene briefed Detective Rolla and gave him several Polaroid photographs of the scene.(316) Detective Rolla then made a careful visual examination of the body and conducted a thorough inventory of the physical evidence on the body.(317) Detective Rolla then took his own Polaroid pictures of the crime scene and, when the Fairfax County Medical Examiner arrived, helped him move the body for a preliminary examination.(318)
Sergeant Braun interviewed a couple whose car was parked near Mr. Foster's Honda, and another officer canvassed the area for other witnesses.(319) All the items in Mr. Foster's car were catalogued: a wallet with $300 in cash, his White House identification, and a piece of paper with the names and telephone numbers of three doctors; two empty beer bottles, a canvas bag, a folded map of Washington D.C., and cassette tapes in the car interior; Mr. Foster's daughter's college papers and textbooks in the trunk; and sunglasses and empty cigarette boxes in the glove compartment.(320) With the discovery of Mr. Foster's White House identification, Sergeant Braun considered the case a high priority investigation and proceeded with heightened caution.(321) After Sergeant Braun finished examining Mr. Foster's car, it was sealed with tape and towed to the Anacostia Station of the Park Police.(322) A Park Police officer accompanied the car to the station to ensure that its contents would not be disturbed.(323) B.
The Park Police Notify the White House and the Foster Family.
After Sergeant Braun and Detective Rolla finished their investigation at the scene, the shift commander asked them to call the White House. The investigators contacted White House Security Chief Craig Livingstone and White House Associate Counsel William Kennedy, both of whom went to the hospital to identify Mr. Foster's body. After Mr. Kennedy confirmed Mr. Foster's identity at the hospital, he called White House Chief of Staff Mack McLarty, Counsel Bernard Nussbaum, and Associate Attorney General Webster Hubbell.(324)
Sergeant Braun and Detective Rolla made plans to notify the Foster family and were requested to pick up David Watkins, Assistant to the President for Management and Administration, to assist in the notification.(325) They arrived at the Foster residence between 10:00 p.m. and 10:30 p.m.(326) A few minutes later, Webster Hubbell, his wife, and Mr. Foster's sisters, Sharon Foster and Sheila Anthony, arrived at the Foster home.(327) While the friends and relatives waited on the lawn, Sergeant Braun and Detective Rolla informed Mrs. Foster and her daughter Laura of Mr. Foster's death.(328) The friends rushed to console the visibly upset family.
Park Police investigators were still attempting to continue their investigation. Typically, the death notification involves an attempt to determine whether there was evidence of foul play and to ask the family about the victim's finances, mental state, domestic relations, health problems, and use of medication.(329) After a brief interview yielded no useful information,(330) Detective Rolla asked Mrs. Foster to look for a note or anything out of the ordinary and to contact the police if she found anything.(331) At approximately 11:00 p.m., President Clinton arrived at the Foster residence. Feeling that they would get no further information from the family, Sergeant Braun and Detective Rolla left shortly thereafter, at about 11:10 p.m.(332) C.
The White House Ignores Repeated Park Police Requests to Seal Mr. Foster's Office.
As Sergeant Braun was leaving the Foster residence after the President arrived on July 20, she pulled David Watkins aside and asked him to seal Mr. Foster's office. Because the investigators did not find, at Fort Marcy or at the Foster home, a note or any other evidence indicating why Mr. Foster might have taken his own life, they considered Mr. Foster's White House office, the last known place where he was seen alive, to be a part of the overall crime scene.(333) Sergeant Braun testified that, from the investigation of the death scene and the interviews with the Foster family, the Park Police "did not get any information that would confirm that Mr. Foster was depressed or had even discussed the possibility of committing suicide with any of his friends or relatives."(334) Mr. Foster's office, therefore, became highly relevant to the investigation. "So I felt that that may be a place where Mr. Foster may have left a note, would be at his office, maybe for his co-workers to find rather than for his wife."(335) Detective Rolla agreed with Sergeant Braun: "And then, having not been able to get any information as to his state of mind from the family, no knowledge that they had found a note or anything, his place of business becomes the next logical place to go, as I said earlier."(336) The Park Police believed that Mr. Watkins, who had provided the officers with a White House business card indicating that he was "Assistant to the President for Management and Administration,"(337) possessed the authority to direct that Mr. Foster's office be sealed.(338)
Once the Park Police determined that the focus of their investigation should shift to Mr. Foster's office, the police sought "to preserve [the office] in the condition that he left it."(339) According to Sergeant Braun, Mr. Watkins agreed to secure Mr. Foster's office.(340) Detective Rolla corroborated Sergeant Braun's recollection:
She asked him to secure the office because we knew the situation was that we weren't going to be able to be in there that night. And just to have things maintained, we wanted it secured until such time as higher officials could get in there and be gone through properly.(341) Mr. Watkins denied that the Park Police asked him to take steps to seal Mr. Foster's office.(342)
Major Robert Hines of the Park Police learned of Mr. Foster's death at approximately 9:45 p.m. on July 20.(343) Lieutenant Gavin, the shift commander, called to request that Major Hines contact Deputy Assistant to the President William Burton.(344) Major Hines then called Mr. Burton and requested that he seal Mr. Foster's office. "We needed to go into the office and look for any kind of reasons or intention that Mr. Foster may have to commit suicide."(345) To ensure that such a search would be fruitful, the office should not be contaminated. "I would expect when we said seal the office, that the office would be closed, it would be secured and no one would be entering the office."(346) Sylvia Mathews, a White House aide, confirmed that she overheard a conversation between Mr. Burton and the Park Police that evening.(347) Following the conversation, Mr. Burton asked Mr. Nussbaum to seal Mr. Foster's office.(348) Ms. Mathews' contemporaneous notes of the evening stated: "At that point, Bill said we should get Bernie and lock the office. I am uncertain what time that was, but probably after 10:00 p.m. I don't remember who told Bernie, but he went up and locked the office."(349)
Notwithstanding the testimony of Major Hines and Ms. Mathews, Mr. Burton and Mr. Nussbaum denied that they had been asked to seal Mr. Foster's office.(350)
Both Webster Hubbell's wife and Marsha Scott, a White House official and a friend of the Hubbells, remembered that Mr. Hubbell called either David Watkins or Mack McLarty on the night of Mr. Foster's death to request that his office be sealed.(351) In a press briefing several days later, Dee Dee Myers identified Mr. McLarty as the person who directed that Mr. Foster's office be sealed.(352)
David Gergen testified that, after leaving the Foster residence, he went to the White House at around midnight.(353) In the White House kitchen, he and Mr. McLarty discussed sealing Mr. Foster's office.(354) Mr. Gergen then spoke by telephone with Mark Gearan, the White House Communications Director. He asked Mr. Gearan, who was in his office on the first floor of the West Wing, whether the office had been sealed. According to Mr. Gergen, Mr. Gearan checked, and "[h]e came back to me and said, yes, the office has been sealed."(355) Mr. Gearan testified that, when Mr. Gergen asked him whether Mr. Foster's office was locked, he asked Mr. Burton about it. Mr. Burton told Mr. Gearan that the office was locked, and Mr. Gearan relayed this information to Mr. Gergen.(356)
Mr. Burton did not recall this conversation.(357)
Even though White House officials had received several requests from law enforcement and an internal White House request, Mr. Foster's office was not sealed on the evening of July 20. D.
Mrs. Clinton Learns of Mr. Foster's Death and Begins to Contact Close Associates.
After learning of Mr. Foster's death, Mr. McLarty called Hillary Clinton, who was travelling from Los Angeles to Arkansas that evening. Mrs. Clinton's plane landed in Little Rock at approximately 8:30 p.m. Eastern Daylight Time.(358) Mrs. Clinton then proceeded to her mother's home in Little Rock. Between 9:00 p.m. and 10:00 p.m., a Secret Service agent told Lisa Caputo, Mrs. Clinton's press secretary, that Mr. McLarty was calling by telephone.(359) Mr. McLarty then told Ms. Caputo that he needed to speak privately to Mrs. Clinton. When Mrs. Clinton came on the line, Mr. McLarty informed her of Mr. Foster's death.(360) Mr. McLarty confirmed that he notified Mrs. Clinton some time after 9:00 p.m., after her plane landed in Arkansas.(361)
Margaret Williams, Mrs. Clinton's chief of staff, testified that she received two phone calls from Mrs. Clinton on the evening of July 20. "The first call she was on the plane and said that -- she must have called through Signal because I thought she said are you at home. And she said are you going to be there, and I said yes. And she said I will call you when I land."(362) After the plane landed, Mrs. Clinton called Ms. Williams again and informed her of Mr. Foster's death.(363) Telephone records from the Rodham residence confirm that Mrs. Clinton called Ms. Williams on July 20 at 10:13 p.m. Eastern Daylight Time and spoke for 16 minutes.(364) It was the first telephone call that Mrs. Clinton made after learning of Mr. Foster's death.
The Rodham residence telephone records indicate that, after talking with Ms. Williams, Mrs. Clinton called the residence of Harry Thomason and Susan Bloodworth-Thomason in Carpinteria, California, for four minutes.(365) Mr. Thomason, a long-time friend of the Clintons, was involved in the Travel Office affair that apparently weighed heavily on Mr. Foster's mind at the time of his death. Mrs. Clinton next called Susan Thomases in New York and spoke for 20 minutes. Ms. Thomases, who had played a key role in Whitewater damage control during the 1992 presidential campaign, testified that she and Mrs. Clinton commiserated each other about Mr. Foster's death, and that they did not discuss the handling of papers in Mr. Foster's office.(366) E.
Mrs. Clinton Calls the White House on an Unlisted Trunk Line.
Mrs. Clinton next called the number 202-628-7087 and spoke for 10 minutes.(367) The Committee was forced to go to considerable lengths to identify to whom Mrs. Clinton placed this call. Counsel for Mrs. Clinton and the White House represented to the Special Committee that, despite undertaking every effort available, they were unable to determine the identity of the person whom Mrs. Clinton called at 202-628-7087. The telephone company also could not identify the person or entity registered to that number.11
On November 30, 1995, the Special Committee then issued a set of interrogatories to Mrs. Clinton, exploring her knowledge and recollection of the identity of the person or persons she called at 202-628-7087.12 On December 7, 1995, Mrs. Clinton submitted a sworn affidavit to the Special Committee, attesting that "I do not remember calling the number 202-628-7087 that evening. I understand that the number is an auxiliary White House switchboard number. It would not surprise me to learn that I had placed a call to the White House that evening."
On December 7, 1995, the White House advised the Special Committee that "the telephone number (202) 628-7087 was an unlisted trunk line that rang on the White House switchboard. . . . The number was also used as a means to get through to the White House when the switchboard was overloaded, and may have been provided to certain individuals for the purpose."
The White House further advised that "we understand that Bill Burton remembers receiving a call in the Chief of Staff's office from Mrs. Clinton on the evening of July 20 and speaking with her about Vincent Foster's death." Tellingly, Mr. Burton had omitted this conversation when he first testified before the Committee. In his second appearance, Mr. Burton testified with a refreshed recollection:
I was in Mr. McLarty's private office most of the evening, and at some point that night I received a call from the First Lady. I don't remember if I answered the phone or if Ms. Mathews answered the phone and transferred the call in to me or if someone else answered the phone and transferred the call into me. I don't remember who called.
It was the First Lady, and we had a personal conversation about Mr. Foster's death, and it lasted about 10 or 15 minutes to the best of my recollection.(368) Sylvia Mathews, who was in the Chief of Staff's office with Mr. Burton, did not recall observing Mr. Burton speaking on the telephone with Mrs. Clinton, nor did he discuss with her at any time about his conversation with Mrs. Clinton. She testified that "I was away from the desk, as we discussed previously, several times."(369)
After calling the White House, Mrs. Clinton called Carolyn Huber.(370) Ms. Huber, Assistant to the First Lady and Director of White House Correspondence, was the former administrator of the Rose Law Firm and would later discover in the White House Residence the long-missing Rose Law Firm billing records reflecting its work for James McDougal's Madison Guaranty. Mrs. Clinton spoke with Mrs. Huber for four minutes, and then called a family member in Washington, D.C.(371) In her seventh and final call of the night, Mrs. Clinton called the President at 1:09 a.m. in the White House Residence and spoke to him for 13 minutes.(372) F.
Helen Dickey's Telephone Call to the Arkansas Governor's Mansion.
Helen Dickey worked for Governor Clinton in Arkansas as the assistant to the governor's mansion administrator.(373) She became staff assistant to the White House Social Secretary.(374) Between January 1993 and November 1994, Ms. Dickey lived in a suite of rooms in the northeast corner of the third floor of the White House Residence.
Ms. Dickey testified that, on July 20, 1993, she returned to the White House Residence some time between 6:00 p.m. and 8:00 p.m. and went to her rooms.(375) Records maintained by the Secret Service indicate that Ms. Dickey entered the White House Residence at 7:32 p.m.(376) She left her suite at some point to go to the solarium, also on the third floor, to watch the President's appearance on Larry King Live. The show started at 9:00 p.m.(377) At some point during the show, John Fanning, a White House doorman, entered the solarium and told Ms. Dickey that Mr. Foster had committed suicide.(378)
Ms. Dickey, visibly shaken, went to the second floor kitchen and called her mother from the kitchen telephone. After talking with her mother for two to three minutes, Ms. Dickey called her father, who lived in a suburb of Atlanta, Georgia.(379) She then went back up to the third floor and, at some point, returned to the second floor kitchen to find the President, who had finished his interview with Larry King.(380) The President told Ms. Dickey that "Vince Foster had shot himself in a park."(381) After her two to three minute conversation with the President, Ms. Dickey returned to the third floor. Ms. Dickey made three calls from the telephone in the hallway of the third floor of the Residence. One call went to Ann Stock, Ms. Dickey's former supervisor as the Arkansas Governor's Mansion administrator, and another went to Ann McCoy, her supervisor as the White House Social Secretary.(382) She talked to each for no more than five minutes.(383)
Ms. Dickey then placed the third telephone call to the Arkansas Governor's Mansion at 501-376-6884.(384) Roger Perry, an Arkansas State Trooper on duty at the mansion, answered the telephone. Ms. Dickey testified that she stated to Trooper Perry: "I called just to let you know that Vince Foster has committed suicide. I just wanted you all to know before you heard it on the news."(385) According to Ms. Dickey, Trooper Perry "showed signs of being shocked and being very sad."(386) The entire conversation lasted approximately two to three minutes.(387) Her best estimate of the time of the call to the Governor's Mansion was 10:30 p.m. Eastern Daylight Time.(388)
During its investigation, the Special Committee received an affidavit from Roger Perry. In relevant part, the affidavit stated:
On the 20th day of July, 1993, I received a telephone call from a person known to me as Helen Dickey. I was working in the security detail at the Arkansas Governor's mansion in Little Rock, Arkansas at that time. Dickey advised me that Vincent Foster, well knew [sic] to me had gotten off work and had gone out to his car in the parking lot and had shot himself in the head. I do not recall the exact time of this telephone call but am fairly certain it was some time from about 4:30 p.m. to no later than 7:00 p.m. [Central Daylight Time] The Special Committee also received affidavits from Larry Patterson and Lynn Davis, also of the Arkansas State Police. Trooper Patterson stated that he had received a telephone call from Trooper Perry on July 20, 1993. Trooper Perry told him that Ms. Dickey had called and said Vincent Foster "had gotten off work and had gone out to his car in the parking lot and shot himself in the head." Trooper Patterson did not recall the exact time of Trooper Perry's telephone call but was "fairly certain it was some time before 6:00 p.m." Central Daylight Time. Captain Davis likewise stated in his affidavit that Trooper Perry called him on July 20, 1993, to say that Ms. Dickey had called him and said that Vincent Foster "had gone to his car on the parking lot and had shot himself in the head." According to Captain Davis, "I estimate the time as being no later than six o'clock, Central Standard [sic] Time."
To resolve the discrepancy between Ms. Dickey's testimony and the sworn affidavits of Messrs. Perry, Patterson and Davis, the Special Committee attempted to obtain records of telephone communications between the White House and the Arkansas Governor's Mansion on July 20, 1993. The White House advised that "no such call was made from the private telephone lines in the Executive Residence."(389) The call may have been placed, however, through the White House or Signal switchboard. Ms. Dickey testified that she recalled placing the call through the White House operator.(390) On October 13, 1995, White House advised that "[w]e have obtained records of long-distance calls placed through the Signal switchboard, and have confirmed that no call to the Governor's Mansion was made through the Signal switchboard on July 20, 1993."(391) The White House also advised that Sprint, the provider of long distance service through the White House switchboard, did not retain records of individual long-distance telephone calls.(392)
After additional inquiries, the Special Committee discovered that the White House was mistaken. Sprint indeed retained some records of individual telephone calls placed through the White House switchboard. The Special Committee thus issued a subpoena on November 20, 1995, to obtain such records and was initially advised that the records reflected the destination number to which a telephone call was placed, but not the extension in the White House from which the call originated.(393) Sprint subsequently advised that its records only reflect the first six digits of the destination number, that is, the area code and prefix, and not the last four digits of the destination number.(394) Because the Governor's mansion does not have an exclusive prefix, it is not possible to determine from the records produced by Sprint to the Special Committee when Ms. Dickey placed the phone call.
After further inquiry by the Special Committee, however, the White House advised that "[w]e have confirmed that a call to Ms. Dickey's father's telephone number in Georgia was made at 10:06 p.m. on July 20, 1993, from one of the private lines in the Residence."(395) Ms. Dickey testified that she called her father before calling the Arkansas Governor's mansion.(396) Ms. Dickey also denied that she told the troopers that Vincent Foster had gone to his car in the parking lot and shot himself in the head. According to Ms. Dickey: "That's absolutely not true. . . . I never heard that, I never would have said that because that's not the facts as I knew them at that time. I'm absolutely positive of the timing of this."(397) G.
The Handling of Trash and Burn Bags in Mr. Foster's Office.
During the course of the evening, Sylvia Mathews determined that she should retrieve the trash from Mr. Foster's office in case it contained evidence relevant to his death. According to Ms. Mathews, "I consulted with senior staff around and said should we examine the contents and was told -- I don't remember the exact words or who said what, but generally encouraged to go ahead and look through the trash."(398) Ms. Mathews specifically recalled Bill Burton being present for this discussion.(399) The trash had already been collected by the cleaning staff, but Ms. Mathews retrieved it. After locating what she believed to be Mr. Foster's trash, Ms. Mathews prepared an inventory and found nothing significant.(400) At Bill Burton's request, she placed the trash in the office of Roy Neel, the Deputy White House Chief of Staff.(401) Mr. Nussbaum testified that Ms. Mathews asked him if she should recover the trash from Mr. Foster's office. He then told her to go ahead and to store the trash in Roy Neel's office.(402)
Ms. Mathews also wanted to recover Mr. Foster's burn bag. The burn bag, a receptacle used for sensitive materials to be destroyed, is collected daily by the Secret Service. Secret Service officer Henry P. O'Neill was responsible for emptying the individual burn bags into a larger burn bag to be processed.(403) Officer O'Neill testified that he brought this co-mingled burn bag, which contained the papers of several offices, to the Chief of Staff's suite and gave it to Ms. Mathews. Officer O'Neill believed that this bag did not contain anything from the White House Counsel's suite or from Vincent Foster's office.(404) When he had gone to empty the burn bags in the counsel's suite with the cleaning staff earlier that evening, he had been interrupted by Bernard Nussbaum entering the suite.(405) Officer O'Neill never had a chance to empty the burn bags, because the suite was occupied that evening.
Bill Burton then instructed Ms. Mathews to check with Mr. Nussbaum before examining the contents of the co-mingled burn bags.(406) Mr. Nussbaum told Ms. Mathews that Mr. Foster's office did not have a burn bag.(407) Mr. Nussbaum instructed Ms. Mathews to return the burn bag because it contained materials co-mingled from other offices in the White House.(408) Ms. Mathews then returned the bag to Officer O'Neill and told him to proceed as usual.(409) Mr. Nussbaum did not recall discussing the burn bag with Ms. Mathews.(410) H.
Senior White House Officials Conduct a Late-Night Search of Mr. Foster's Office.
Even though the Park Police made two requests to seal Mr. Foster's office, three White House senior officials conducted a search of his office on the night of July 20.
Patsy Thomasson, David Watkins' deputy, received the following message on her pager at 10:34 p.m. on July 20: "PLEASE PAGE DAVID WATSKINS [sic] WITH YOUR LOCATION".(411) Ms. Thomasson was at Sequoia Restaurant, minutes from the Foster residence in Georgetown. When Ms. Thomasson reached Mr. Watkins, he told her that Mr. Foster was dead.(412) Ms. Thomasson then asked him, "[I]s there anything I can do to help? Do I need to be where you are? What do I need to do?"(413) Rather than asking Ms. Thomasson to take steps to seal Mr. Foster's office, as the Park Police had specifically requested Mr. Watkins to do, he instructed Ms. Thomasson to go into Mr. Foster's office at the White House to look for a suicide note.(414) Ms. Thomasson arrived at the White House at 10:48 p.m.(415)
White House Counsel Bernard Nussbaum was finishing dinner at Galileo's, a restaurant several minutes from the White House, when he was paged by the White House on July 20. When he returned the page, Mark Gearan told him that Mr. Foster was dead.(416) Mr. Nussbaum went directly to the White House,(417) where he encountered the President and Mack McLarty on their way to the Foster residence.(418) According to Mr. Nussbaum, he then went to his office to make telephone calls to notify his staff of Mr. Foster's death. At about 10:45 p.m., Mr. Nussbaum reached the White House Counsel's suite, where both his office and Mr. Foster's office are located. On his way there, "it occurred to me that perhaps Vince left a note telling us why he had taken his life."(419)
Margaret Williams, Chief of Staff to the First Lady, testified that she received the news of Mr. Foster's death from Mrs. Clinton. Telephone records indicated that this call came at 10:13 p.m. Eastern Daylight Time and lasted 16 minutes. When she hung up with Mrs. Clinton, Ms. Williams called her mother(420) and Evelyn Lieberman, her assistant.(421) Ms. Lieberman, who lived near Ms. Williams, went to Ms. Williams' house and drove her to the White House. Ms. Williams did not recall why she went to the White House beyond the fact that "I just knew everybody else would be there."(422) When the two arrived at the White House, Ms. Williams asked Ms. Lieberman to remain in the foyer of Mrs. Clinton's office to answer the phones. Ms. Williams went to Mr. Gearan's office to review a press statement and then went to her own office, which was down the hall from Mr. Foster's office, to get a copy of Mrs. Clinton's schedule.
All evening, I had been avoiding looking in the direction of Vince's office as I entered and left the First Lady's suite. But in a strange way, when I saw the light on in his office, I had this hope, albeit irrational, that I would walk in and I would find Vince Foster there and we would have a chat sitting on his couch, as we have done so many times before.(423)
Ms. Thomasson, Mr. Nussbaum, and Ms. Williams all admitted that they entered Mr. Foster's office on the evening of July 20. Their stories fall apart after that. Each provided testimony that was inconsistent with the other two. And, their testimony was contradicted the testimony of career Secret Service officer Henry P. O'Neill, the watch officer for that evening, and contemporaneous Secret Service records.
Ms. Thomasson testified that, after placing her personal belongings in her office, she went to the second floor on the West Wing of the White House.(424) There, she encountered Mr. Nussbaum in the hallway and told him that Mr. Watkins had asked her to look for a suicide note in Mr. Foster's office.(425) She and Mr. Nussbaum then walked together into Mr. Foster's unsecured office.(426) The cleaning lady was leaving the suite as Mr. Nussbaum and Ms. Thomasson entered.(427) Ms. Thomasson then did a quick search for a note. "I sat at Vince's desk, opened the drawers to the desk to see if there was anything that looked like a suicide note. I looked in the top of his briefcase, which was sitting on the floor. I didn't see anything."(428) According to Ms. Thomasson, Mr. Nussbaum walked out for a moment, and Ms. Williams came in and began to cry on the couch.(429) After a few minutes Ms. Williams left the office. Mr. Nussbaum then came back in the office and suggested that they "probably should get out of here at that point."(430) Ms. Thomasson and Mr. Nussbaum then left Mr. Foster's office together.(431) She then paged Mr. Watkins, at 11:36 p.m., to report that she had found no note in Mr. Foster's office.(432)
Mr. Nussbaum offered a markedly different recollection. When he reached the Counsel's suite at around 10:45 p.m., the door was open. He did not arrive with Ms. Thomasson, as Mr. Thomasson has claimed. Instead, Ms. Thomasson and Mr. Williams were already in Mr. Foster's office. Ms. Williams was sitting on the sofa crying, and Ms. Thomasson was sitting behind Mr. Foster's desk. They told Nussbaum that they had just arrived, and Ms. Thomasson told Mr. Nussbaum that she was searching for a suicide note. According to Mr. Nussbaum, "Patsy and I checked the surfaces in Vince's office. We opened a drawer or two looking for a note. . . . The three of us then left the office.(433) He claimed that the search lasted no more than ten minutes,(434)13 and that the three then left Mr. Foster's office together.(435) Mr. Nussbaum then went next door to his office to make some phone calls.14 When he left about an hour later, he locked and alarmed the Counsel's suite.(436)
Ms. Williams contradicted the testimony of both Ms. Thomasson and Mr. Nussbaum. She testified that when she entered Mr. Foster's office, Ms. Thomasson was already sitting at Mr. Foster's desk. Ms. Williams sat on the couch and commiserated with Ms. Thomasson. Mr. Nussbaum entered the office later, obviously upset.(437) After a brief time in the office, Mr. Nussbaum left, and Ms. Williams followed shortly thereafter.(438) According to Ms. Williams, Ms. Thomasson remained in the office after both Mr. Nussbaum and Ms. Williams left.(439)
Ms. Thomasson, Mr. Nussbaum, and Ms. Williams thus differed as to the critical sequence of entries into and exits from Mr. Foster's office on the evening of July 20. Ms. Thomasson testified that she entered and exited Mr. Foster's office together with Mr. Nussbaum and suggested that at no time was she alone in the office.15 Mr. Nussbaum testified that he entered Mr. Foster's office after Ms. Thomasson and Ms. Williams; the three left the office together; and, after stopping by his office to make some phone calls, Mr. Nussbaum locked and alarmed the suite. Ms. Williams testified that she entered after Ms. Thomasson and before Mr. Nussbaum, and that she exited shortly after Mr. Nussbaum, leaving Ms. Thomasson alone again in the office. I.
Secret Service Officer Henry O'Neill Observes Margaret Williams Remove Documents from Mr. Foster's Office.
Henry P. O'Neill joined the Secret Service Uniformed Division in 1977 and has been assigned to the White House since May of that year. On the evening of July 20, 1993, he arrived at work at 6:30 p.m., several hours before his scheduled shift at 10:30 p.m., in anticipation of some voluntary overtime hours. He made his regular rounds with the cleaning staff.(440) He accompanied the cleaning staff to the White House Counsel's suite and disarmed the alarm at 10:42 p.m.(441) As he reached the door of the suite, Officer O'Neill made a radio call to the uniformed division control center. The center acknowledged the call, and Officer O'Neill unlocked the door and entered.(442) "I flip the light switch on in the reception area. Then I walk to the right into Mr. Foster's -- at that time, the deputy counsel's office, and behind the doorway there's an alarm switch, and you just flip the switch into access or open."(443) He then let the cleaning crew in.
Officer O'Neill proceeded into Mr. Nussbaum's office and checked the burn bag.(444) He did not check Mr. Foster's office for a burn bag because as he walked back into the reception area, "I recognized Mr. Nussbaum as I turned to the right. He walked into his office, and just about the same time I noticed other figures walk in behind him and I heard women's voices. And so I directed the cleaning ladies to exit the suite, and I left the suite also."(445)16 Officer O'Neill could not identify exactly who, or how many people were accompanying Mr. Nussbaum into the suite. He was certain, however, that he heard women's voices and that Mr. Nussbaum was not alone as he entered the suite.
The Secret Service officer then left the Counsel's suite and walked to the legislative affairs office. He was on his way back to alarm the Chief Counsel's suite when he ran into Howard Pastor, the Assistant to the President for Legislative Affairs, who informed him of Mr. Foster's death. As Officer O'Neill approached the Counsel's suite he saw Ms. Lieberman, Ms. Williams' assistant, leaving the suite.(446) She asked Officer O'Neill to lock up the office. He replied that he would take care of it.(447) Officer O'Neill then rode the elevator with Ms. Lieberman down to the ground floor to inform his supervisor of Mr. Foster's death. While he was on the phone, he overheard Ms. Lieberman asking Officer James Shea to ensure that the Counsel's suite was locked.(448) Officer O'Neill told Shea that he knew of the request and would secure the office.(449)
When Officer O'Neill returned to secure the White House counsel's suite, he found Patsy Thomasson sitting behind Vince Foster's desk.17 He "stopped in the doorway immediately walking into the office because as I looked to the left there was a woman sitting at the desk."(450) Officer O'Neill went back to the first floor. He returned to the Counsel's suite for a third time and again saw Ms. Lieberman coming out of the counsel's suite. She asked him again to lock Mr. Foster's office. According to Officer O'Neill:
And then a few seconds after I saw her [Lieberman] come out, Mr. Nussbaum walked out behind her and walked through the hallway towards the stairs, past the elevator, and within a few more seconds I saw Maggie Williams walk out of the suite and turn to the right in the direction that I was standing.(451) As Ms. Williams walked past Officer O'Neill to her office Ms. Lieberman told him "'that's Maggie Williams; she's the First Lady's chief of staff.'"(452)
Officer O'Neill observed Ms. Williams carrying file folders out of the Counsel's suite when he saw her on the night of Mr. Foster's death:
She was carrying what I would describe in her arms and hands, as folders. She had them down in front of her as she walked down to her - in the direction of where I was standing.
* * *
She walked past me, and she continued on down the hallway. It's only about 20 feet at the most. And she started to enter her office, and she had to brace the folders in her arm on a cabinet, and then she entered the office and came out within a few seconds and locked the door.(453) The folders were of "some weight, 3 to 5 inches."(454) Officer O'Neill was certain that he saw Ms. Williams carrying folders out of the Counsel's suite that evening.(455) After leaving the folders in her office, Ms. Williams joined Ms. Lieberman outside of the counsel's suite.(456) Officer O'Neill then locked and alarmed the suite and joined the two women on the elevator.(457)
Ms. Lieberman, Ms. Williams and Mr. Nussbaum each denied removing any documents, or seeing anyone removing documents, from Mr. Foster's office on the night of his death.18
Mr. Nussbaum testified that after he left Mr. Foster's office together with both Ms. Thomasson and Ms. Williams, he proceeded to his office to make some telephone calls and then locked and alarmed the Counsel's suite when he left. This testimony was contradicted by the White House alarm logs maintained by the Secret Service for July 20, 1993, which showed that Officer O'Neill alarmed the counsel's suite at 11:41 p.m.(458)19
Curiously, after Ms. Williams left the White House, she called Mrs. Clinton in Little Rock at 12:56 a.m. on the morning of July 21, and they spoke for 11 minutes. Ms. Williams claimed that she did not tell Mrs. Clinton about her search of Mr. Foster's office.(459) Although Ms. Williams testified that she did not recall talking to Susan Thomases on the evening of Mr. Foster's death,(460) telephone records obtained by the Special Committee indicated that, upon ending her conversation with Mrs. Clinton, Ms. Williams called Ms. Thomases at 1:10 a.m., and they spoke for 14 minutes.(461) Of her conversation with Ms. Williams, Ms. Thomases testified: "I don't recollect speaking with her that night. That's not to say that she didn't call me back and I didn't speak to her, but I have no independent recollection of having spoken with her that night."(462)
III. July 21, 1993. A.
Mr. Foster's Office Is Finally Sealed.
When Associate Attorney General Webster Hubbell woke up on July 21, 1993, he immediately called William Burton, Deputy Assistant to the President, and asked him to lock Mr. Foster's office.(463) In the middle of the night, "one of the things that kept me awake is saying we ought to make sure Vince's office is locked."(464) Mr. Hubbell wanted to make sure that the office was secured and that its contents were documented and handled in a "professional" manner.(465) When Mr. Hubbell reached Mr. Burton at the White House, some time between 7:00 a.m. and 8:00 a.m., Mr. Burton assured Mr. Hubbell that White House Chief of Staff Mack McLarty had taken steps to seal the office on the previous night.(466) Mr. Burton did not recall discussing sealing the office with Mr. Hubbell,(467) although his undated, handwritten notes listed "1) Secure office" near the notation "Webb" and Mr. Hubbell's home and office phone numbers.(468)
Betsy Pond, Bernard Nussbaum's secretary, arrived at the White House early in the morning of July 21, at around 7:00 a.m.(469) She then entered Mr. Foster's office, which had not been sealed. She followed the routine procedure to disarm the alarm for the Counsel's suite.(470) Once inside Mr. Foster's office, she looked at documents on the coffee table and the desk, turned the documents over, and "smushed them together in a pile."(471)
Associate Counsel to the President Stephen Neuwirth testified that when he arrived at the White House Counsel's suite on July 21, he saw Ms. Pond in Mr. Foster's office. Ms. Pond told him that she was straightening out the office, and Mr. Neuwirth told her that she should not be in Mr. Foster's office.(472) Mr. Neuwirth testified that he "didn't think it was appropriate for an assistant to Mr. Nussbaum to be in the office at that time."(473) Ms. Pond then left Mr. Foster's office and called Mr. Nussbaum at home. According to Ms. Pond, she told Mr. Nussbaum that she had been in Mr. Foster's office, and Mr. Nussbaum told her not to let anyone in the office.(474) Mr. Nussbaum confirmed this conversation.(475)
Linda Tripp, Mr. Nussbaum's executive assistant, testified that Ms. Pond told her that she went into Mr. Foster's office to search for a note:
She said, "Well, I just went in there but just to straighten papers." And, I said, "Betsy, why would you have gone in there to straighten papers? We never go into Vince's office to straighten anything." She then admitted that she was hysterical, and she was very, very overwrought, and that she had actually been in there looking for a note but that no one was to go in there; and, those were Bernie's strict instructions.(476)
At 8:00 a.m., the White House senior staff, which included, among others, Messrs. Burton, Gergen, and Nussbaum, attended a daily meeting in Mr. McLarty's office.(477) Although those present at the meeting were fairly certain that they discussed Mr. Foster's death,(478) none could recall the specifics of the discussion. Nor could anyone remember a discussion of the investigation into their colleague's death,(479) other than "that the Park Police would be looking into it."(480) And, no one recalled any discussion of sealing Mr. Foster's office and preserving its contents.(481)
Instead, Mr. Nussbaum testified that, after the daily meeting of the White House Counsel's Office at 9:00 a.m., he talked with Mr. Neuwirth and Associate Counsel to the President Clifford Sloan about securing Mr. Foster's office. Mr. Nussbaum realized that "there would be investigations obviously with respect to Vince's death. And under those circumstances, it would be best to make sure that the office was secure in connection with those investigations."(482) According to Mr. Nussbaum, Mr. Neuwirth and Mr. Sloan, the three lawyers concluded that Mr. Foster's office should be sealed,(483) and they proceeded to call the Secret Service.(484)
While the lawyers deliberated, Linda Tripp had independently contacted the Secret Service to arrange for the office to be sealed. "When I first came in the morning and saw that it was not secured and Betsy was reacting to her situation, I said, `Why is this not secure? Why is there no tape? Why is there no guard?' She said, `No one has done that yet?'"(485) Ms. Tripp testified that her professional background led her to recognize the need to seal the office. "I've worked on the covert side of the Department of Defense . . . . And, instantly, to me, that made--it made little sense to do anything else but ensure that we were not violating--I mean, it was obvious a history-making situation that would come to if not this end then at least a very visible end. It just didn't occur to me not to do that."(486)
So when one of the lawyers emerged from the meeting in Mr. Nussbaum's office and said, "`Someone better arrange to have an agent posted,'" Ms. Tripp had already made such arrangements.(487) Donald Flynn, a Secret Service supervisor, confirmed that Ms. Tripp had called the Presidential Protective Division to request that an officer be posted outside Mr. Foster's office.(488) Mr. Flynn forwarded the request to the uniformed division of the Secret Service and, at about 10:10 a.m., took up position outside Mr. Foster's office until he was relieved by the uniformed officer.(489)
Even after a uniformed officer was posted at the door, White House personnel still had access to Mr. Foster's office. As Detective Markland testified, "I came to find out that it wasn't exactly sealed but posted, which meant that people had access to the office but their comings and goings would be recorded by a Secret Service agent."(490) Because the White House Counsel's office did not specify that access should be limited, Secret Service Agent Flynn instructed the uniformed officers not to impede access but simply to record entries into the office.
There really was no understanding as to whether or not people could enter the office or not. I mean, I'll offer this on my own and that was that I instructed the officer that came up there to relieve me that if anyone did enter the office, to jot down the time and the name of who it was and what the purpose was for them going in the office, and then to relay the information to me.(491) Thus, the log indicated that at 11:10 a.m., Mr. Nussbaum entered the office and removed a small black and white photograph.(492) Although Thomas Castleton, an intern in the White House Counsel's office, testified that he entered Mr. Foster's office with Mr. Nussbaum, Castleton's entry was not recorded in the log book.(493) B.
The White House Impedes Initial Park Police Efforts to Search Mr. Foster's Office.
Based on their various requests the previous night, the Park Police assumed that Mr. Foster's office had been sealed. Sergeant Braun was under the impression that the office had in fact been sealed.(494) Similarly, Major Robert Hines had spoken with Mr. Burton on the night of July 20 and requested that he seal the office, following "a normal procedure that our investigators would ask the Secret Service to do."(495) Thus, when Major Hines and Park Police Chief Robert Langston briefed White House officials on their investigation at a 10:00 a.m. meeting on July 21, both Major Hines and Chief Langston thought that Mr. Foster's office had already been sealed.(496) In fact, Chief Langston testified that, during the 10:00 a.m. briefing, White House officials assured him that the office had been sealed the night before, even though it was not.(497) "There was acknowledgement, somewhere in that meeting, that the office had been sealed and that investigators would be conducting interviews of the staff up there that morning."(498)
The two Park Police investigators, Captain Hume and Detective Peter Markland, arrived at the White House just as Major Hines and Chief Langston finished briefing White House officials. Detective Markland, who replaced Sergeant Cheryl Braun on the case, found out upon his arrival at the White House that a uniformed officer had not been posted at Mr. Foster's office until the morning following Mr. Foster's death, despite contrary assurances to the Park Police. He had a brief discussion with Secret Service Inspector Dennis Martin and Mr. Nussbaum, and "even though they were different times and there was confusion as to what time somebody was posted and who ordered it posted, both of them agreed they had not been posted until that morning at some point."(499) Given the importance of the office to his investigation, Detective Markland was upset at the news. "I was under the impression that it was posted the night before, after Mr. Foster was identified. So I was upset about that."(500) Detective Markland and Captain Hume complained to Chief Langston about the White House's failure to secure the office. "[T]hose were comments that were just made by Hume or Markland at the time that it had not been sealed or wasn't sealed properly, or people had been allowed access, or something like that; that they had great concerns at the time."(501) Those concerns prompted Chief Langston to call Robert Bryant, the special agent in charge of the Washington field office for the FBI, to request an FBI agent to assist the Park Police investigators.(502)
The Park Police investigators were not permitted to enter Mr. Foster's office to search for evidence on July 21. According to Secret Service Agent Flynn, he understood that Captain Hume and Detective Markland "were coming over with the intent of going into Mr. Foster's office to look for a suicide note."(503) Secret Service Inspector Martin was assigned to escort the investigators "wherever they needed to go."(504) However, when Agent Flynn encountered the trio later in the day, Agent Martin appeared to be "baby-sitting" the Park Police investigators.(505) "They were waiting with him for a time to determine when they could go in Mr. Foster's office."(506) The investigators had not been allowed access to Mr. Foster's office to search for evidence because "[t]hey were waiting for approval from Mr. Nussbaum."(507) They waited through the afternoon.(508) C.
The White House Counsel and Deputy Attorney General Agree on a Search Protocol for the Documents in Mr. Foster's Office.
Associate Attorney General Webster Hubbell was among those who attended the Park Police briefing at the White House in the morning of July 21. As they were walking out of the meeting, Mr. Hubbell told Mr. Nussbaum that "he ought to think about staying out of this."(509) Mr. Hubbell testified that he advised Mr. Nussbaum to recuse himself from the investigation because "I knew that there had been issues regarding the travel office and whether there should be an independent counsel to represent the White House with regard to the travel office investigation."(510) Mr. Nussbaum replied that he wanted to talk to Mr. Hubbell about that later.(511) They never talked.(512)
Some time that afternoon, Mr. Nussbaum spoke with other senior officials at the Justice Department. Shortly after the Park Police briefing, Mr. Nussbaum decided to ask the Justice Department to coordinate the investigation into Mr. Foster's death.(513) He then called either Attorney General Janet Reno or Deputy Attorney General Philip Heymann to make the request. According to Mr. Nussbaum, the Justice Department replied that the FBI would assist with the investigation. For a coordinating function, however, "they may get other people involved."(514) Other than this quick response to Mr. Nussbaum's request for assistance, Mr. Nussbaum did not recall any conversation with anyone about documents in Mr. Foster's office until officials from the Justice Department arrived at the White House later in the afternoon.(515)
Mr. Heymann had a more detailed and markedly different recollection of the conversation. Mr. Heymann did not remember who initiated this conversation, but suspected that he telephoned Mr. Nussbaum after the White House contacted Attorney General Reno and she delegated the matter to Mr. Heymann. He was immediately aware of the sensitive nature of the investigation, based on his experience in the Justice Department.(516)
According to Mr. Heymann, important legal, political and ethical considerations must be balanced in an investigation into the death of a senior administration official:
Number one is I know there's going to be a serious problem with documents because there are serious issues of executive privilege and there are serious issues of law enforcement and they aren't easily reconciled. Number two, I know that there are going to be political attacks and political allegations of cover-up and I know that there's going to be conspiracy theorists. I've been through that regularly and I know that they're out there. . . . That difficulty of reconciling the three, number one and number two, leads to the third, and that is I worry a lot about the Department of Justice retaining the appearance and the reality of absolutely unbiased law enforcement.(517) Because of these competing considerations, Mr. Heymann believed that any review of documents had to be undertaken jointly by law enforcement officials and the White House. "So we can't make the judgment completely ourselves as to what's relevant. On the other hand, I don't think it's wise or desirable for the White House counsel to decide on his own what is executive privilege and what isn't."(518)
On the afternoon of July 21, Mr. Heymann and Mr. Nussbaum agreed on an appropriate procedure to review the documents in Mr. Foster's office. "I agreed with Mr. Nussbaum on what I think, and continue to think, is an entirely sensible plan for reconciling these competing interests."(519) Career Department of Justice officials would review the documents jointly with Mr. Nussbaum, but the officials would be allowed to see each document to determine its relevance to the ongoing investigation:
I would send over career prosecutors of unimpeachable reputation and rectitude and they would, with him, look at every document in the office. They would look at the heading of its and maybe the first couple of lines, in order to see whether it had any likely relevance or any possible relevance, to Vince Foster's death.(520) Although "agreed" did not mean that he and Mr. Nussbaum entered into a binding contract, Mr. Heymann was certain that he and Mr. Nussbaum had reached a meeting of minds on July 21 on the appropriate review procedure.(521) "I understood it to be that we both thought that this was the right way to handle what would otherwise be a very difficult and sensitive problem."(522) He described this procedure to Captain Charles Hume of the Park Police that afternoon. According to Captain Hume: "My first impression was that the documents would be looked at by the Justice Department attorneys."(523)
Mr. Heymann selected two respected career prosecutors to go to the White House to review the documents -- Roger Adams, Counsel to the Deputy Attorney General, and David Margolis, Associate Deputy Attorney General. Mr. Adams, who had been the principal ethics official for the criminal division, was, in Mr. Heymann's words, "unbiasable."(524) Mr. Margolis, who had been chief of the Department's organized crime section, "sort of epitomizes the most highly respected career prosecutor at this time. There's no more highly respected career prosecutor at this time."(525)
That afternoon, Mr. Heymann sent Mr. Adams and Mr. Margolis to the White House to begin to carry out the document review procedure to which he and Mr. Nussbaum had just agreed. "I know we agreed and I know that because I know I sent Adams and Margolis over and I even thought the process was going to start that afternoon."(526) Mr. Margolis corroborated Mr. Heymann's recollection:
To give it the full background, he had called me up from a meeting, and he said, "I want you to go over to the White House with Roger Adams." He said, "Vince Foster is dead. There's an investigation of it." I had seen the headline of that in the newspaper that morning. He said he had reached a tentative agreement with Mr. Nussbaum that Roger and I were to go through at least the first page or two of each document in order to determine whether they were relevant to our investigation. . . . Phil told me that he believed he'd had an agreement in principle with Bernie Nussbaum to do it that way, so I should go finalize it and then begin the search process.(527) D.
The White House Finalizes the Agreement on the Search Protocol.
When Messrs. Adams and Margolis arrived at the White House in the late afternoon, at around 5:00 p.m., they went to the White House Counsel's suite. There, they met with Mr. Nussbaum, other members of the White House Counsel's office, an attorney for the Foster family, and officials of the FBI, Park Police, and Secret Service.(528) The purpose of the meeting was to discuss the procedures for the review of documents in Mr. Foster's office.
Mr. Margolis testified that, at the meeting, he and Mr. Nussbaum finalized the agreement on how to conduct the search the following morning. "When I got there, I discussed it with Mr. Nussbaum. And I believed then and I believe today that we finalized that agreement and that we both agreed to it."(529) Roger Adams confirmed that Mr. Nussbaum agreed that the Justice Department officials would review the documents for relevance and, if the documents were relevant, for possible claims of privilege.(530) Mr. Adams was certain that an agreement had been reached. "I am not sure how the conversation went, but the procedure that I have just outlined was what was clearly agreed upon at that meeting on Wednesday the 21st."(531)
The recollection of the Justice Department officials was corroborated by a contemporaneous FBI report.20 After summarizing how the FBI became involved in the investigation on July 21, the report stated:
An initial meeting was held with the White House Counsel Bernard Nussbaum at which time it was agreed that the Victim's office, which is located adjacent to Mr. Nussbaum's would continue to be sealed by the U.S. Secret Service (USSS) until 10:00 A.M. on 7/22/93, at which time Margolis and Adams would conduct a preliminary examination of documents within the office.(532)
When, near the end of the meeting, Mr. Neuwirth stated that Mr. Nussbaum alone would review each document for relevance, Mr. Adams and Mr. Margolis immediately objected. Mr. Nussbaum then intervened, correcting Mr. Neuwirth and stating that the Justice Department attorneys would review the documents. According to Mr. Margolis:
When we finished, Mr. Neuwirth on his staff, as I recall, attempted to restate the agreement, and got it what I believe was exactly wrong, and said, "The way we're going to do it is that Bernie will go through the documents, and he'll give you what is both relevant and non-privileged to review." I said that's exactly wrong. We just agreed to the other procedure. And it was my recollection then, and it's my recollection today, that Mr. Nussbaum agreed with me that Mr. Neuwirth was wrong, and that we had that other agreement.(533) Mr. Adams recollected the same incident.(534)
At Mr. Heymann's request, Roger Adams typed up notes summarizing the activities of the Justice Department in connection with the Foster investigation. Those notes, prepared the following week, confirmed Mr. Margolis' recollection:
At the Wednesday meeting there was agreement that the Justice Department attorneys would look at each document or at least each file to determine if it contained privileged material, in which case it would not be examined by the Park Police or FBI. We would not read the documents or make notes, but merely examine them long enough to determine if they were covered by the attorney-client privilege or possibly executive privilege. As an example of the clarity of this agreement, Mr. Neuwirth at one point, apparently trying to summarize it, said that "Bernie would look at each document and determine privilege. If he determined no privilege, it could be shown to the law enforcement officers." He was immediately corrected and Mr. Nussbaum agreed that the Justice Department representatives would see the documents to determine privilege.(535)
The recollection of Mr. Nussbaum and his associates contradicts the testimony of the career Justice Department officials and, most importantly, the only contemporaneous document -- an FBI report -- recording what occurred at the meeting.
Mr. Nussbaum conceded that the search of Mr. Foster's office was discussed,(536) but maintains that no agreement was reached as to the procedure for reviewing documents. "In my -- to the best of my recollection, and I do have a recollection about this, there was no agreement. I think my recollection is supported by Mr. Neuwirth of my office who was there, by Mr. Sloan of my office who was there."(537) Mr. Nussbaum acknowledged, however, that a misunderstanding may have occurred:
If the Justice Department officials believe that we reached an agreement after our July 21 meeting, then a misunderstanding and a miscommunication occurred, and I may be responsible for that. But I do not believe, nor, as you have heard, do my colleagues in the White House counsel's office believe, who were present at those meetings, that we reached any agreement on July 21 or that we in any way misused the Department of Justice.(538) Mr. Neuwirth and Mr. Sloan corroborated Mr. Nussbaum's testimony that the exact protocol for the search was not resolved at the end of the July 21 meeting.(539)
When Mr. Adams and Mr. Margolis returned to the Justice Department after the meeting, Mr. Margolis reported to Mr. Heymann that Mr. Margolis had finalized Mr. Heymann's agreement with Mr. Nussbaum.
I told him along the lines that he had thought that he had reached a tentative agreement with Bernie Nussbaum; that Roger and I would review at least the first couple, first page or two of each document, to determine whether it might contain something along the lines of an extortion note or a suicide note. So it was the agreement that he had reached.(540) Mr. Heymann confirmed this testimony:
Mr. Heymann: That is what they reported to me when Mr. Margolis and Mr. Adams returned that evening, the evening of Wednesday the 21st, to the Justice Department.
Senator Shelby: What do your notes reflect, I was paraphrasing them?
Mr. Heymann: It said they discussed the system that had been agreed upon, I just described to you. BN, that stands for Mr. Nussbaum, agreed. SN, that stands for Neuwirth, said no. We shouldn't do it that way. The Justice Department attorneys shouldn't have direct access to the files. David Margolis, the Justice Department attorney, said it's a done deal and Mr, Nussbaum at that point said yes, we've agreed to that.(541)
During the meeting, everyone agreed that, given the lateness of the hour, the search of Mr. Foster's office would not take place until the following day.(542) It was then decided that the Secret Service would place a secure lock on Mr. Foster's office door, the keys to which would be kept by agent Flynn of the Secret Service.(543) The lock was installed at approximately 8:00 p.m. on July 21.(544)
IV. July 22, 1993 A.
The White House Counsel's Office Interferes with Park Police Interviews of White House Staff.
The next morning, July 22, at about 9:00 a.m., Detective Markland and Captain Hume of the Park Police returned to the White House to interview White House staff. Two Associate White House Counsels attended each of the interviews. Deborah Gorham, Mr. Foster's secretary, testified that members of the White House staff attended a meeting on the afternoon of July 21 with Mr. Sloan, Mr. Neuwirth, and Mr. Nussbaum. Mr. Neuwirth, according to an electronic mail message from Linda Tripp to Ms. Gorham, "briefed us on comportment and interrogation."(545)
During this meeting on July 21, Ms. Gorham told Mr. Nussbaum that Mr. Foster had "placed shredded remnants of personal documents"(546) in his briefcase. Ms. Gorham wrote to Ms. Tripp in an e-mail that "I told Bernie in front of everybody that shredded remnants were in the bag,"(547) an exchange that Ms. Tripp recalled.(548)
Captain Hume and FBI special agent Dennis Condon interviewed Betsy Pond, Mr. Nussbaum's secretary, in Mr. Sloan's presence. According to Captain Hume's report of the interview, Mr. Sloan took notes during the entire interview. At one point, "Bernard Nussbaum burst into the room and demanded, "is everything all right?"(549) After being reassured, Mr. Nussbaum left. Captain Hume asked Ms. Ponds whether she had been coached:
When I questioned her if she had been told how to respond to our questions, she stated that Clifford Sloan (who was present during our interview) and Steve Neuwirth, both associate counselors, had called them all together on Wednesday evening and told them they would be questioned by the police and for them to tell the truth.(550)
While Captain Hume and Agent Condon interviewed Ms. Pond, Detective Markland and FBI agent Scott Salter interviewed Deborah Gorham in the presence of Mr. Neuwirth.(551) Mr. Neuwirth interjected at the end of the interview and "took Ms. Gorham out of the room to speak to her."(552) They returned a short time later, "and Ms. Gorham stated that there was one thing she thought may be important that she recalled."(553) Ms. Gorham then told the investigators that in the previous week, Ms. Gorham had, at Mrs. Foster's request, asked the White House credit union to credit Mr. Foster's pay on a weekly, rather than biweekly, basis to avoid overdrawing the family account.
A similar incident occurred later in the day, after the Park Police had completed their interview with Ms. Gorham:
At approximately 1450 hours, immediately after the inventory of Mr. Foster's Office by White House Counsel (reference report under this case file number by Capt. Hume), Detective Markland and S/A Salter were asked to remain and were ushered into Mr. Nussbaum's office by Mr. Neuwirth. Ms. Gorham was brought in and she stated that she had just remembered some conversations that she thought were important to our investigation.(554) Ms. Gorham then told the investigators that Mr. Foster's son and wife had called within the last two weeks to ask about Mr. Foster's mood.(555)
Detective Markland testified that he believed the attorneys from the White House counsel's office attended the interviews in order to "report back to Mr. Nussbaum what was being said in the interviews."(556) Because the White House lawyers were present, "[t]he atmosphere of those interviews made it impossible to establish any kind of relationship with the people being interviewed."(557) The lawyers created an "intimidating situation" and therefore the interviews were not very productive.(558) According to Detective Markland: "It was my belief that the staff members that we were interviewing had been briefed beforehand and would say no more than what they were told they should tell us."(559) "Everyone I interviewed on this day up there I felt had been talked to by Mr. Nussbaum or his staff and knew exactly what they were going to say, nothing more, nothing less. And that was it. They all came off very rehearsed."(560) B.
The First Lady, Margaret Williams, Susan Thomases and Bernard Nussbaum Conduct a Series of Early Morning Telephone Calls.
At 7:44 a.m. Eastern Daylight Time (EDT) on July 22, Margaret Williams, the Chief of Staff to the First Lady, called Mrs. Clinton at her mother's house in Little Rock.(561) They talked for seven minutes. This call set off a chain reaction of further calls.
At 6:57 a.m. Central Daylight Time, or 7:57 a.m. EDT, Mrs. Clinton called the Mansion on O Street,(562) a small hotel where Susan Thomases usually stayed in Washington, D.C.(563) The call lasted three minutes.(564) Ms. Thomases, a New York lawyer, is a close personal friend of President and Mrs. Clinton. She has known the President for 25 years and Mrs. Clinton for almost 20 years.(565) She was an adviser to the Clinton 1992 presidential campaign on the Whitewater issue, and remained in a close circle of confidants to the Clintons after the election.(566) Susan Thomases was the third person Mrs. Clinton called after she learned of Mr. Foster's death, and they talked for 20 minutes.(567)
After her conversation with Mrs. Clinton, at 8:01 a.m. EDT, Ms. Thomases paged Bernard Nussbaum at the White House, leaving her number at the Mansion on O Street.(568) After Mr. Nussbaum answered the page, Ms. Thomases and Mr. Nussbaum both agree that they talked about the upcoming review of documents in Mr. Foster's office.(569)
Associate White House Counsel Stephen Neuwirth, who was formerly an associate at Mr. Nussbaum's law firm in New York City, testified that Mr. Nussbaum told him that Ms. Thomases and Mrs. Clinton were concerned about investigators having "unfettered access" to Mr. Foster's office. "Again, while I don't remember his exact words, in a very brief discussion, my understanding was that Ms. Thomases and the First Lady may have been concerned about anyone having unfettered access to Mr. Foster's office."(570) Mr. Neuwirth thought that the conversation occurred on July 22, before the scheduled document review with law enforcement officials.(571)
Ms. Williams initially did not tell the Special Committee about her early morning phone call to the Rodham residence.(572) After obtaining her residential telephone records documenting the call, the Special Committee voted unanimously to call Ms. Williams back for further testimony. When presented with these records, Ms. Williams testified: "If I was calling the residence, it is likely that I was trying to reach Mrs. Clinton. If it was 6:44 in Arkansas, there's a possibility that she was not up. I don't remember who I talked to, but I don't find it unusual that the Chief of Staff to the First Lady might want to call her early in the morning for a number of reasons."(573)
Ms. Thomases testified that she did not give instructions to anyone about the search of Mr. Foster's office:
While my memory is not perfect -- I just don't remember every person that I spoke to during those days. But I do know that I never, I say never, received from anyone or gave to anyone any instructions about how the review of Vince Foster's office was to be conducted or how the files in Vince's office were to be handled. I want to repeat that. I never received from anyone or gave to anyone any instructions about how the review of Vince Foster's office was to be conducted or how the files in Vince's office were to be handled.(574) She acknowledged paging Mr. Nussbaum on the morning of July 22, but maintained that "I was not looking for Bernie to talk about the review of documents in Vince Foster's office. I was really trying to reach him to talk to about how he was feeling and how he was doing."(575)
Ms. Thomases did offer that she talked to Mr. Nussbaum about the review of documents in Mr. Foster's office, but only because Mr. Nussbaum initiated the subject:
He obviously was very focused on the documents at that time, where I was not, and he proceeded to tell me not to worry, that he had a plan, that he was going to take care of him. He was kind of, as I said in my deposition, he was sort of venting. He seemed to have a very clear sense that he was on top of it; he was going to handle it; he was going to give Vince's documents to the Clinton's lawyers, and that he was going to protect all the Presidential papers.(576) She told Mr. Nussbaum that his procedure "sounds good to me."(577) Ms. Thomases testified that she did not express any view to Mr. Nussbaum that the police should not have unfettered access to Mr. Foster's office.(578) Ms. Thomases maintained: "I don't remember ever having a conversation with Hillary Clinton during the period after Vince Foster's death about the documents in Vince Foster's office."(579)
After Ms. Thomases' initial testimony, the Special Committee obtained telephone records documenting that she talked with Mrs. Clinton for three minutes immediately prior to paging Mr. Nussbaum on July 22. The Special Committee voted unanimously to call Ms. Thomases back for further testimony. When presented with the new records, Ms. Thomases testified that "I know you think there is a relationship between those two calls."(580) She maintained, however, that the two calls were not related. She testified that her early-morning conversation with Mrs. Clinton was about "the possibility that I didn't feel well enough to go to Little Rock" for Mr. Foster's funeral.(581) According to Ms. Thomases, she called Mr. Nussbaum because "I was worried about my friend Bernie, and I was just about to go into a very, very busy day in my work, and I wanted to make sure that I got to talk to Bernie that day since I had not been lucky enough to speak to him the day before."(582)
Mr. Nussbaum had a markedly different recollection of his conversation with Ms. Thomases on July 22. He testified that Ms. Thomases -- not he -- initiated the discussion about the procedures that he intended to employ in reviewing documents in Mr. Foster's office. "The conversation on the 22nd was that she asked me what was going on with respect to -- what was going on with respect to the investigation or the examination -- the examination of Mr. Foster's office."(583)
Beyond this, Mr. Nussbaum testified that Ms. Thomases "said people are concerned about whether I was using the correct procedure or whether the procedure was -- people were concerned or disagreeing, something like that, whether a correct procedure was being followed, whether I was using the correct procedure, whether it was proper to give people access to the office at all something like that."(584) According to Mr. Nussbaum, Ms. Thomases never specified who the mysterious "people" were to whom she was referring,(585) nor did Mr. Nussbaum understand who they were.(586)
Mr. Nussbaum claimed that he resisted the overtures of the First Lady's close advisor:
But I said Susan -- she wasn't in the White House -- at least I didn't know she was in the White House -- I said I'm having discussions with various people. As far as the White House is concerned, I will make a decision as to how this is going to be conducted. It's going to be done the right way. It will balance out the various interests. It's going to be done the way I think it should be done.(587)
And, Mr. Nussbaum further testified that Mrs. Clinton did not convey to him, directly or indirectly, her views on how to conduct the search of Mr. Foster's office.(588) Mr. Nussbaum did not recall telling Mr. Neuwirth that Ms. Thomases and Mrs. Clinton were concerned about the police having unfettered access to Mr. Foster's office.(589)
Apparently, Ms. Thomases did not give up easily. In the late morning of July 22, senior White House officials, including Mr. Nussbaum and Mr. Neuwirth, met in the office of Chief of Staff Thomas McLarty to discuss the upcoming review of Mr. Foster's office.(590) At about the time of this meeting, between 10:48 a.m. and 11:54 a.m., Ms. Thomases called Mr. McLarty's office three times and Ms. Williams' office three times.(591)
When asked about the coincidence of these telephone calls, Ms. Thomases testified that she "never actually remember[ed] speaking with Mack McLarty at his number during this period."(592) With respect to the repeated calls to the office of the Chief of Staff to the First Lady, Ms. Thomases testified that she probably was attempting not to reach Ms. Williams but rather to be transferred to someone else in the White House.(593) Although she testified that July 22 was "a very, very busy day in my work,"(594) Ms. Thomases suggested that she also may have been put on hold during these lengthy calls, for as long as nine minutes.(595)
Ms. Williams testified that she could not recall talking with Ms. Thomases and suggested that she was at home in the morning of July 22.(596) This explanation was contradicted by Secret Service records indicating that Ms. Williams had entered the White House at 8:10 a.m. that morning.(597) C.
The White House Breaks Its Agreement with the Justice Department: "A Terrible Mistake."
By the time senior Justice Department attorneys David Margolis and Roger Adams arrived at the White House at 10:00 a.m. on July 22, 1994, Mr. Nussbaum had a change of heart. He "announced that he had decided to change the procedure for the search or inventory of the office. He said that he alone would look at each document to determine relevance and privilege, and that we would not be doing that."(598)
According to Roger Adams, the Justice Department officials "pointed out that that was completely inconsistent with the agreement of the day before, and we argued with Mr. Nussbaum. We said this was not what we had agreed to, that he was making a mistake, and we were going to have to call our boss, the Deputy Attorney General."(599) According to Mr. Margolis, Mr. Nussbaum said that there had been a change of plans, "that he would look at the materials to determine whether they were relevant, make the first cut, and determine the privilege issues and the sensitivity issues. And then anything that met all his standards along those lines, if we still wanted to see, he would show us."(600)
Upset, Mr. Margolis immediately called Mr. Heymann from Mr. Nussbaum's office phone.(601) "I called Mr. Heymann and explained this change to him. And we discussed it. We were both dead set against it."(602) Both were surprised by Mr. Nussbaum's new plan, which they thought was wrong. According to Mr. Margolis, "We were very concerned as to how this would appear to the public in terms of law enforcement, and in terms of whether we were running a credible investigation."(603) Mr. Heymann testified that "Mr. Margolis told me that Mr. Nussbaum had said to me that they had changed the plan, that only the White House counsel's office would see the actual documents."(604) Mr. Heymann then asked to speak to Mr. Nussbaum.
When Mr. Nussbaum got on the telephone, Mr. Heymann warned him sternly that "this was a terrible mistake":(605)
I remember very clearly sitting in the Deputy Attorney General's conference room picking up the phone in that very big room. I remember very clearly being very angry and very adamant and saying this is a bad -- this is a bad mistake, this is not the right way to do it, and I don't think I'm going to let Margolis and Adams stay there if you are going to do it that way because they would have no useful function. It would simply look like they were performing a useful function, and I don't want that to happen.(606)
According to Mr. Heymann, Mr. Nussbaum was surprised at Mr. Heymann's reaction and wanted to check with unspecified others before making a final decision. "[H]e was taken aback by my anger and by the idea that I might pull out the Justice Department attorneys and he said I'll have to talk to somebody else about this or other people about this, and I'll get back to you, Phil."(607)
Mr. Nussbaum feared that the Justice Department officials would not attend the document review. He specifically told Mr. Heymann: "don't call Adams and Margolis back to the Justice Department. I'll get back to you."(608) Notwithstanding this explicit promise, Mr. Nussbaum never called Mr. Heymann back.(609)
The nearly contemporaneous notes21 of Cynthia Monaco, Special Assistant to the Deputy Attorney General, confirmed Mr. Heymann's testimony:
The next day [July 22] was a disaster. I first realized there was a problem when I saw Phil Heymann on the phone with Bernie Nussbaum. I walked into the conference room and sat down. This was probably about 10:30 or 11 in the morning when he should have been in the Crime Bill pre-meeting in room 4118. Phil was on the phone with Bernie Nussbaum and he said: "you are messing this up very badly. I think you are making a terrible mistake." And what I took it to mean, in the context of the general conversation was that Bernie had refused to let David and Roger take a look at the documents.(610) Mr. Nussbaum denied having this conversation with Mr. Heymann.(611)
After Mr. Heymann and Mr. Nussbaum finished their conversation, Mr. Margolis returned to Mr. Nussbaum's office and spoke with Mr. Heymann.(612) Mr. Margolis thought that even if Mr. Nussbaum did not change his mind, the Justice Department attorneys should remain at the White House because "we really had no choice. Walking away was not really an option, because we had no sense of when the search would be conducted by Mr. Nussbaum, and what the parameters would be, and just what would happen, although we agreed we had to push with all our might to try to change it around. And that's what we did."(613) Mr. Margolis thought that Mr. Heymann agreed with this course of action.(614)
Mr. Heymann, however, assumed from his conversation with Mr. Nussbaum that Mr. Nussbaum, after his consultations, would call Mr. Heymann back to let him decide what to do. "And I also thought that I had an understanding that nothing would happen without my at least being informed and having an opportunity to react."(615) Mr. Heymann believed that the search would not go forward until Mr. Nussbaum called him back.(616)
After he got off the telephone with Mr. Heymann, Mr. Margolis tried again in vain to convince Mr. Nussbaum that the new procedures were "a big mistake."
I explained to Mr. Nussbaum that to do it his way would be a big mistake. I said, "It was your mistake if you do it this way, but it is a big mistake." I think it was at that point when I also said to him, "You know, if this were IBM that we were talking about, I would have a subpoena duces tecum returnable forthwith with these documents. But I recognize this is not IBM." And he made a facetious comment about, if this were IBM rather than the White House counsel's office, a smart lawyer would have removed the documents before the subpoena ever got there. That I took as a facetious comment. Anyway, he wasn't talking about what he would do.(617)
Mr. Margolis stressed the importance of maintaining the public perception of a credible and thorough investigation.(618) He believed that law enforcement officials must have a substantive role in the review process and not be "excess baggage," as they would be under Mr. Nussbaum's new plan; "I might as well go back to my office, and he could mail the results of the search back to me."(619)
According to Mr. Margolis, Mr. Nussbaum conceded that having the investigators attend the review was mostly out of concern for "show and appearances."(620) Fearing that the lawyers would leave, Mr. Nussbaum insisted that they wait in the White House lobby:
He made it very apparent that he would be really appreciative if we didn't leave in the interim. I think I have said something about, "Maybe in any event I'll go back to the office while you're thinking about it, and I can always get back here in 15 minutes if I decide to and I want to and if I have to." But he very much requested that we just wait.(621)
Mr. Adams and Mr. Margolis then waited in the lobby of the White House.(622) At one point, the Justice Department attorneys went outside. Believing that Mr. Adams and Mr. Margolis had left the White House, the White House lawyers went out to look for them. "Bernie had said he had thought, when he couldn't find us in the lobby, that we might have left and he was concerned about that."(623) Mr. Nussbaum did not remember Mr. Margolis threatening to leave the White House.(624)
The notes of Adams of the morning's events confirmed Mr. Margolis' recollection:
The next morning [July 22], however, Mr. Nussbaum had changed his mind and said he would look at the documents and decide privilege issues himself. The Justice Department attorneys pointed out that that was inconsistent with the previous day's agreement and would cause problems. We stated that the Counsel's Office would be better off to allow the Department attorneys to decide or at least help decide privilege issues, because that would allow the White House to say that the issue was considered independently. Moreover, we stated that we had been asked to undertake this particular assignment in part because we had reputations of not talking to the press or "leaking." Mr. Nussbaum did not immediately begin the search but waited for about two and one half hours -- during which time he said he was considering whether to allow us to see the documents -- before deciding that only he and Associate Counsels Neuwirth and Sloan would see the documents.(625)
Mr. Nussbaum admitted that he discussed with various people how to conduct the search on July 22.(626) But he did not recall a specific discussion with Mr. Margolis in the morning during which Mr. Margolis and Mr. Adams objected to his proposed procedure.(627) And, he did not recall Mr. Margolis or Mr. Heymann telling him that he was making a mistake.(628) Although Mr. Nussbaum could not remember speaking with the Justice Department officials, he did acknowledge conversations with a number of senior White House officials who were concerned about the search.(629)
In particular, John Quinn, then Chief of Staff and Counselor to the Vice President and now Counsel to the President, advised Mr. Nussbaum that only White House officials should be allowed access to Mr. Foster's office.(630) "He thought it was a terrible mistake and stressed it very firmly."(631) According to Mr. Quinn:
I wanted to be sure that somebody with the appropriate level of security clearance and who was privy to the attorney-client relationship first went through the office in order to ascertain if national security materials or privileged communications were present and, if so, to take steps to segregate them.(632) D.
The Window-Dressing Review of the Documents in Mr. Foster's Office.
After lunch, at about 1:15 p.m., Mr. Nussbaum summoned the law enforcement officials to attend the review of the contents of Mr. Foster's office.(633) Mr. Nussbaum then announced that he alone -- and no law enforcement official -- would review the documents in his now deceased deputy's office. According to Mr. Margolis:
So we ate, we came back in, and that's when Bernie told us he had given due consideration to our arguments, he thought they were good arguments, but he was sticking with doing it his way, which was he would review the documents, tell us generically what they were, if there wasn't a problem with them and if they had any sense of being germane, let us look at them.(634)
Mr. Nussbaum testified that the career law enforcement officials initially resisted his plan, but then "went along."(635) After Mr. Nussbaum indicated that law enforcement officials would not be allowed to review Mr. Foster's papers, Mr. Margolis said, "`It's a mistake. . . . But it's your mistake. So, okay.'"(636) Mr. Margolis also told Mr. Nussbaum, "You know, if this were IBM that we were talking about, I would have a subpoena duces tecum returnable forthwith for these documents. But I recognize this is not IBM."(637)
The group entered Mr. Foster's office to observe Mr. Nussbaum conduct the review. Present were Mr. Nussbaum, Mr. Burton, Mr. Sloan, and Mr. Neuwirth from the White House; Captain Hume and Detective Markland from the Park Police; Agents Salter and Condon from the FBI; Messrs. Margolis and Adams from the Justice Department; Paul Imbordino and Paul Flynn from the Secret Service; and Michael Spafford, a private attorney who represented the Foster family.(638)
During the document review, according to Mr. Adams, "Mr. Nussbaum was seated at Vince Foster's desk. Standing behind him were Steve Neuwirth and Cliff Sloan. Mr. Margolis and myself and the law enforcement officers were seated in what I describe as a rough semicircle around the desk in sort of rough rows. Standing off to one side was the Foster family's attorney Mr. Spafford."(639)
According to Captain Hume's report of the review: "The eight law enforcement officers were gathered on the opposite side of the desk and room in a position where we couldn't examine any documents."(640) Detective Markland confirmed that the law enforcement officers were specifically placed where they could not see the documents as Mr. Nussbaum was reviewing them.(641)
Mr. Nussbaum then reviewed the documents in Mr. Foster's office. He briefly described the documents and placed them into three categories. Mr. Margolis and FBI agent Adams believed that one pile consisted of personal materials that were going to the Foster family; the second pile consisted of official White House documents that were to be distributed to other White House attorneys; and the third consisted of the Clintons' personal documents, which were to be sent to the Clintons' personal lawyer.(642) The Park Police detectives described the three categories as follows: (1) documents of potential interest to law enforcement; (2) documents concerning White House business with no relevance to the investigation; and (3) personal papers of either the Clintons or the Foster family.(643) Mr. Spafford, the Foster family attorney, wrote in a contemporaneous memorandum: "The documents were separated into three groups: personal matters, documents of potential interest to the investigators, and matters of no apparent interest."(644)
Mr. Nussbaum provided a brief and generic description of the documents he reviewed.(645) Captain Hume reported that "Bernard Nussbaum did the actual review of the documents in a very hurried and casual fashion."(646) According to Mr. Adams:
As best I can recall, with most of the documents he made just sort of a generic description, something like this is personal; this is going to the family of the -- this is something that Vince has been working on; it's relevant to work of the White House counsel's office; it's going to be distributed to other lawyers in the office.
Another thing he would say is this is something he had been working on for the President personally. This is going to the President's outside attorney. Now, there were occasions where some documents he would describe a little bit more -- a little bit more definitely than that, but it's my recollection that, in general, it was just a generic description of them.(647)
Mr. Margolis recalled essentially the same rushed procedure:
[Nussbaum] went through the items on and in and around Mr. Foster's desk and announced what they were, generically, like, "This file is a file of nominations that Vince was working on for the President. It's not germane. This is a matter that Vince was working on for the first family in their nonofficial capacity. It's not germane." Things like that.(648)
At different times during the review, Mr. Margolis renewed his objections to Mr. Nussbaum's review. In fact, Mr. Margolis specifically objected to the fact that Mr. Nussbaum's descriptions were so generic that they were of little assistance to the investigators.(649) He remarked that "it gave me a bit of deja vu all over again of dealing with the CIA . . . ."(650) FBI Agent Salter had a similar view: "At one point, I recall that Mr. Nussbaum described documents as he went through, and declared that they were not pertinent to the investigation, and I know Mr. Margolis responded by saying how do we know if they're pertinent or not if we don't get to look at the documents."(651) Mr. Adams recalled that, at some point, "Mr. Margolis again interposed an objection to the procedure. He said, the best I can recall, that this was a mistake and that Mr. Nussbaum might as well conduct the review himself and mail us the results or mail Mr. Margolis the results."(652)
Mr. Nussbaum took what the law enforcement officials thought were "extreme" positions to shield documents from their review. According to the Park Police report:
There was some conversation between Nussbaum and Margolis as to what constituted privileged communication. Nussbaum carried his interpretation of what was considered privileged to the extreme; one example was when he picked up a xeroxed copy of a newspaper article and declared that it was privileged communication even though it had been in the newspapers.(653) At no time during the approximately one-and-one-half hour period of the review did Mr. Nussbaum allow the law enforcement officials to examine any documents.(654)
The White House lawyers expressed concern -- to an unreasonable degree -- that the law enforcement officials might sneak a peak at Mr. Foster's documents. According to the Park Police report: "At one point Special Agent Scott Salter got up to stretch and Clifford Sloan challenged him and asked him if he was standing up in an attempt to get a look at the documents."(655) Agent Salter described the incident as follows:
I was seated at the end of the sofa next to detective Pete Markland from the Park Police, and I think there was a third person seated at the opposite end from me. And I think the review of documents had been going on for about 30 minutes with the three of us seated on the couch. There wasn't a lot of room. After about 30 minutes, I stood up and stood at the end of the couch, and in front of me was Mr. Margolis and then the desk.
After standing there for just a few minutes, Mr. Cliff Sloan looked at me and said, excuse me, agent, you aren't standing there so you can see the documents on Mr. Nussbaum's desk, are you? And at that point I merely said that -- I told Mr. Sloan that I think he's getting carried away, and then Mr. Nussbaum interjected and said of course, we're all on the same side here, words to that effect. And that was the end of the incident.(656) Mr. Adams indicated that "the remark was (to put it charitably) extremely offensive."(657) Mr. Margolis testified that he may have muttered an expletive after Mr. Sloan's remark.(658) "I was bothered by that. So, a minute later when Cliff was looking over Bernie's shoulder at some document that Bernie was looking at, I said, `Hey, Cliff, you're not looking over Bernie's shoulder so you can read the documents that he is looking at, are you?'"(659) Mr. Sloan acknowledged the incident and apologized before the Special Committee, stating that his comment "was the wrong thing to say to a law enforcement official, or any person trying to do his or her job."(660)
Toward the end of the review, Mr. Nussbaum announced that he would give Mr. Foster's personal papers and effects to Mr. Spafford, the Fosters' personal attorney. Mr. Margolis objected, wanting to maintain the chain of custody within the government.(661) The Park Police officers later told Mr. Margolis: "we feel strongly that we would rather have the files go to Mr. Spafford and Mr. Hamilton because we would rather deal with them in the future than with White House counsel's office."(662) Agent Salter confirmed Mr. Margolis' testimony: "I think we all agreed it would be easier for the Park Police to have access to them if the family's attorney took them and they could be reviewed outside of the west wing of the White House."(663)
During the review, the law enforcement officials requested that Mr. Nussbaum turn on the computer in Mr. Foster's office and examine its contents.(664) According to Mr. Adams, Mr. Nussbaum refused because the computer might contain privileged information.(665) Mr. Adams' memorandum about the review described the incident as follows:
We asked to have the computer in Mr. Foster's office turned on. Mr. Nussbaum said he did not know how to do so and, in any event, he would not do so in our presence in case there were privileged documents on the computer. He said he would have a staff member examine the contents of the computer later after we left. (Press reports in the morning newspapers of that day had stated, without attribution, that no suicide note had been found on his computer.)(666) Mr. Spafford's handwritten notes of the meeting confirmed that Mr. Margolis asked Mr. Nussbaum to review the computer.(667) Mr. Sloan's notes of the meeting listed the computer with an asterisk next to it.(668)
Mr. Foster's burn bag was also in the office at the time of the search. According to Agent Salter, Mr. Nussbaum looked in the burn bag and "said that there was nothing that was pertinent to the investigation."(669) Mr. Spafford's notes listed the burn bag and indicated that it was picked up everyday. Its contents were described as "h/w notes re GC [General Counsel] issues/all wk related". Mr. Sloan's notes, however, contained a more detailed inventory of the contents of the burn bag:
- background investigations [?]
- references to jobs
- arbitration of claims
- nothing personal
- campaign stuff(670)
On July 27, after Mr. Neuwirth apparently discovered a handwritten note in Mr. Foster's briefcase, Linda Tripp sent the following electronic mail message to Deborah Gorham:
it seems that whatever was uncovered by [Neuwirth], who summoned our boss, who then summoned BB, who then summoned H -- and whatever it was provoked a need for notetaking -- and had to do I presume with the burn bag -- I can't imagine that anyone as meticulous as this individual was, would have left anything he did not intend to be found.(671) Ms. Tripp testified that "this individual" referred to Mr. Foster.(672) Ms. Gorham replied to Ms. Tripp's message with the following: "What provoked COS [Neuwirth(673)] to call BWN [Nussbaum] was the briefcase. Once BWN arrived, I forgot who went into VWF's office to get the Burn Bag. But they must feel like a slapstick comedy by not returning the burn bag along with the briefcase."(674) In another message on the same day, Ms. Gorham wrote to Ms. Tripp: "On Wednesday, I told Bernie that VWF had placed shredded remnants of personal documents in the bag. On Thursday, I told Bernie in front of everybody that shredded remnants were in the bag."(675) Ms. Tripp replied: "I recalled the shredded talk, because when we spoke to [Neuwirth] and he briefed us on comportment and interrogation, you mentioned that -- that was on Wednesday evening, right? So it took until MONDAY to figure out it should be looked at? Christ. And we're the support staff???????????"(676) E.
Mr. Nussbaum's Failure to Search Properly Mr. Foster's Briefcase.
Under any view, Mr. Nussbaum's effort to search Mr. Foster's briefcase was seriously deficient. At the time of Mr. Nussbaum's review, the briefcase was located on the floor next to Mr. Foster's desk.(677) Mr. Adams testified that Mr. Nussbaum "picked up the briefcase, announced that this was Vince's briefcase and he would proceed to inventory the items in the briefcase in the same manner as he had inventoried the items on the desk and credenza, and he proceeded to take files and documents from the briefcase and describe them as he described the other documents in the office."(678) Agent Salter confirmed Mr. Adams' description.(679)
Although notes taken by Mr. Spafford and Mr. Sloan indicated that the briefcase contained a copy of the White House Travel Office Management Review, Mr. Nussbaum did not disclose to investigators that most of the contents of the briefcase pertained to the Travelgate controversy.(680) Among the contents was a notebook in Mr. Foster's hand relating to the entire Travel Office matter. According to Mr. Spafford's notes, Mr. Nussbaum described the notebook as "Notebook of notes of meetings, GC [General Counsel] issues"; Mr. Sloan's notes similarly identified the notebook simply as "Notes re: meeting".(681) After the review, Mr. Nussbaum removed Mr. Foster's notebook and other Travelgate files from the briefcase and kept it in his office until his resignation in March 1994.(682) The notebook and documents in Mr. Foster's briefcase were not turned over to the Independent Counsel until April 5, 1995.(683)
The notebook and documents were never disclosed to Justice Department officials and FBI agents then investigating Travelgate and the handling of documents in Mr. Foster's office. In fact, the Justice Department official responsible for the investigation, Office of Professional Responsibility Counsel Michael E. Shaheen, Jr., found out about the existence of Mr. Foster's notebook through a press report in July 1995. Mr. Shaheen, enraged at Mr. Nussbaum's concealment of the notebook, wrote a memo to Mr. Margolis on the subject. It stated in part:
We were stunned to learn of the existence of this document since it so obviously bears directly on the inquiry we were directed to undertake in lat July and August 1993, by then DAG Philip Heymann -- that is, to review the conduct of the FBI in connection with its contacts with the White House on the Travel Office matter and to determine what Vince Foster meant by the statement in his note that "the FBI lied in their report to the AG."
In a July 13, 1993 letter, President Clinton informed then Congressman Jack Brooks that the Attorney General was in the process of reviewing matters relating to the Travel Office, "and you can be assured that [she] will have the Administration's full cooperation in investigating those matters which the Department wishes to review." While these may have been Mr. Clintons' views, the White House personnel with whom we dealt apparently did not share his commitment to full cooperation with respect to our investigation. The recent disclosure of the Foster notebook confirms this.(684) Mr. Shaheen, after outlining specific instances of noncooperation by the White House, concluded, "The fact that we have just now learned of the existence of obviously relevant notes written by Mr. Foster on the subject of the FBI report is yet another example of the lack of cooperation and candor we received from the White House throughout our inquiry."(685)
Mr. Nussbaum testified that he did not recall, during the course of his review on July 22, ever picking the briefcase up off the floor(686) or looking into the briefcase as he was pulling out the files.(687) Agent Salter testified, however, that Mr. Nussbaum picked up the bag, opened it by the handles, tilted it, and looked inside.(688) Mr. Adams,(689) Agent Condon,(690) Agent Flynn,(691) Captain Hume,(692) Detective Markland(693), and Mr. Spafford(694) all confirmed that Mr. Nussbaum picked up the bag.
Detective Markland testified that Mr. Nussbaum told the law enforcement officials that the briefcase was empty:
He would reach down, take papers out of the briefcase, put them on the desk, go through them, put them in the appropriate piles. When he got done, he said that's it, it's empty. After that he picked up the briefcase with both hands, spread it apart a little bit, tilted it, put it back down and shoved it to the back of the room. I could see the briefcase lifted off the floor by him and tilted, put it down, said it was empty two times and moved it back.(695) Detective Markland was certain that Mr. Nussbaum had looked in the bottom of the briefcase. "He had a clear view of the briefcase on the floor so that he had it spread open with both hands and was looking down into the briefcase."(696)
Agent Salter similarly confirmed that Mr. Nussbaum "stated that it was empty and he turned and placed it behind him against the wall." Mr. Margolis likewise testified that "he did take files out of it, a number of files out of it, and then he told us, I don't remember the exact language, but told us that that was it, that there was nothing more."(697)
Mr. Nussbaum contended that he did not recall the process described by Detective Markland,(698) and his White House colleagues concurred in Mr. Nussbaum's testimony that he did not state that the briefcase was empty.(699)
The general impression of those at the review was that the briefcase was empty when Mr. Nussbaum was finished. Thus, when Mr. Burton found out that Mr. Neuwirth had discovered a note in the briefcase, he said, "Well, you've really got to explain this because I saw Bernie empty it. How could it have been in that briefcase?"(700)
The law enforcement officials present at the review agreed with Mr. Burton's assessment. After the note was discovered, Captain Hume was skeptical that Mr. Nussbaum would not have seen a note in the briefcase on July 22. Major Hines agreed with Captain Hume that "our oldest, blindest detective would have found the note."(701) Detective Markland likewise testified that it was impossible for Mr. Nussbaum to miss a torn up note in the briefcase because "he is looking for documents, he has a co-worker and friend who is dead. One of the things he may be looking for could presumably be ripped up, he is not a stupid person. And he physically picked up the briefcase at one point and tilted it and I saw it come off the floor and tilt, and then he put it down and said it is empty."(702) Detective Markland was blunt in his testimony:
Do you think he [Nussbaum] was lying?
Yes, I think it would have been impossible for him to miss that many torn scraps of yellow paper out of a briefcase that he was searching on the 22nd.(703) F.
The Foster Family Lawyer Overhears Discussion of the Scraps of Paper in Mr. Foster's Briefcase.
Michael Spafford testified that, at the end of the review, he remained in the room as the law enforcement officials were leaving. He and Mr. Nussbaum discussed the details of the transfer of Mr. Foster's personal effects to the family. Mr. Sloan then approached Mr. Nussbaum with the briefcase open in his hands:
At some point in time I was talking to Mr. Nussbaum, and at some point in time Mr. Sloan had the briefcase in his hand. So I didn't see him pick it up. And he made the comment at that point in time that there appeared to be scraps in the bottom of the briefcase.
* * *
He was standing, and he had it by the handles. And he had it open like this, and he was looking into the briefcase.(704)
According to Mr. Spafford, Mr. Nussbaum's response was dismissive. "Mr. Nussbaum was sitting on the couch or sofa at the time, and his comment was something to the effect that we will get to all that later; we have to look through the materials and we will look through that later."(705) Mr. Spafford had put away his materials and was gathering up Mr. Foster's personal effects at this point, so he was no longer taking notes of the meeting.(706) The following week, right after he found out that Mr. Neuwirth had discovered a note in the briefcase, Mr. Spafford recounted the incident in a privileged conversation.(707)
Mr. Nussbaum and his associate Mr. Sloan both testified that they did not recall this incident. According to Mr. Sloan, "I have no recollection of anything remotely like that incident, and I think that I would recall it if it had happened. Mr. Spafford and I have an honest difference in recollection on this point."(708)
Mr. Spafford's testimony casts a cloud of doubt on the White House's assertions that the note in Mr. Foster's hand was actually "discovered" on July 26. As Mr. Margolis testified to the Special Committee:
I thought I had this figured out, that the torn-up scraps of paper were not in the briefcase the day that Mr. Nussbaum did the search in our presence. That's what -- that was the explanation I came up with, and that somebody -- that it had never been there before and somebody put it in afterward or it had been there, somebody took it out and then decided they better put it back because there was public speculation of, you know, where is the suicide note.
So, in my own mind, I speculated that must be what happened. But then, when I picked up the paper one day and saw that Mr. Spafford said that the note had been in there when the search was conducted, I am at a loss now. I just have no explanation. I don't know.(709) The Justice Department and the FBI did not have the information Mr. Spafford provided to the Special Committee when the FBI closed its investigation into the circumstances surrounding the discovery of the note. G.
The Secretive, Real Review of the Contents of Mr. Foster's Office.
At the conclusion of Mr. Nussbaum's review of the contents of Mr. Foster's office, the office was again locked, and the key given to Mr. Nussbaum.(710) Detective Markland thought that the office would remain sealed: "It was my understanding that the office would be again posted and left undisturbed."(711)
Although the law enforcement officials understood that Mr. Nussbaum would go through some of the documents again,(712) Mr. Nussbaum did not notify them that he intended to conduct a second search of the office, almost as soon as they left, with Margaret Williams, Chief of Staff to the First Lady.(713)
The circumstances surrounding this second search remained mysterious for some time. The White House did not disclose that Ms. Williams was involved in the review and removal of documents from Foster's office. At a press conference on April 22, 1994, Mrs. Clinton was asked whether Ms. Williams was among those who removed documents from Mr. Foster's office. Mrs. Clinton replied, "I don't think that she did remove any documents."(714) On August 2, 1994, Press Secretary Dee Dee Myers echoed Mrs. Clinton's statement: "I think that it is true that Maggie didn't remove any documents from Vince's office; they were removed by Bernie Nussbaum."(715)
The evidence demonstrates that the foregoing White House statements were false. Mr. Spafford testified that Mr. Nussbaum told Mr. Sloan at the end of the meeting that they would look through the materials again later.(716) Mr. Sloan's notes of the meeting ended with the following: "get Maggie--go through office--get HRC, WJC stuff,"(717) but he testified that "I did not have contemporaneous knowledge of anything beyond what's in my notes on this."(718)
At 3:05 p.m. on July 22, William Burton called Ms. Williams and left a message for her to call back.(719) Twenty minutes later, Stephen Neuwirth called Ms. Williams and left the same message.(720) Ms. Williams testified that she had no independent recollection of these calls other than from the message slips produced to the Special Committee.(721)
Mr. Nussbaum testified that "[s]hortly after the search of Vince's office was completed, I asked Maggie Williams the First Lady's chief of staff, to help me transfer these files to the Clintons and to their personal lawyers."(722) When Ms. Williams got there, "Maggie and I started looking to try to select--making sure we took Clinton personal files rather than any other files."(723) Mr. Nussbaum stated that he and Ms. Williams went through Mr. Foster's office together. "This is Maggie walks in. Let's do this, Maggie. We start doing it. I may walk out to take a call. We complete doing it, but it was done relatively promptly."(724)
Margaret Williams, however, testified that she took no part in the review of the files, that "it seemed pretty much settled" when she entered Mr. Foster's office.(725) Mr. Nussbaum had already selected which files were to be removed.(726) "I can't recall if he had the files boxed that he pointed to or designated as the files that he wanted me to get to Barnett or whether or not they were just in a stack on the table. But it seemed like whatever he was doing, it was done."(727) She acknowledged, however, that Mr. Nussbaum asked her to "eyeball" the room and see if he had missed something. In this cursory look, Ms. Williams saw a file marked "taxes," picked it up, and placed it among the materials to be removed from Mr. Foster's office.(728)
During this second review, Mr. Nussbaum asked Mr. Foster's secretary, Deborah Gorham, to help locate certain files. Curiously, he specifically asked Ms. Gorham about "the file drawer that contained the President's and First Lady's personal and financial documents."(729) When Ms. Gorham entered, Ms. Williams was in the office with Mr. Nussbaum.(730)22 Ms. Gorham then opened a drawer in Mr. Foster's desk and started reading the names of the file folders. Mr. Nussbaum interrupted her and said that he would take care of this ministerial task himself.(731) She left the office and was called back a bit later.(732) In her second time in the office, she sat down at Mr. Foster's desk and opened his middle desk drawer, where she found Mr. Foster's personal items, "such as checks that were written to Mr. Foster and his life insurance policy."(733)
Mr. Nussbaum testified that he had no recollection of asking Ms. Gorham to point out the Clintons' personal files.(734) Ms. Williams testified that Ms. Gorham was in and out of the office, but that Ms. Gorham did not assist in the review process.(735) H.
The Transfer of Clinton Personal Files to the First Family's Residence.
When Ms. Gorham went into Foster's office at Mr. Nussbaum's request, she saw boxes in the office.(736) Mr. Nussbaum later asked her to have the boxes moved out of Foster's office, and she asked Thomas Castleton, Special Assistant to the White House Counsel, to carry them.(737) According to Ms. Gorham, "Mr. Castleton picked them up and carried them out behind Ms. Williams. The last that I saw of them, noticed them, was in the door just outside of our suite."(738)
Linda Tripp, whose desk was in the same area as Ms. Gorham, testified that she saw Mr. Castleton carry the boxes out of the office. She later learned from Ms. Gorham and Mr. Castleton that the boxes were delivered to the White House residence.(739)
Margaret Williams testified that when Mr. Nussbaum called her earlier in the afternoon, he instructed her to deliver the files to the Clintons' personal lawyers. "[H]e asked me if I would be responsible for getting the personal documents of the President and Mrs. Clinton, which he was compiling, as I understood it, and get them to their personal lawyer, who was at the time Bob Barnett of Williams & Connolly."(740)
Ms. Williams made three calls that afternoon that ultimately determined where the files were moved to. "I called Mrs. Clinton -- well, I had three calls. I called Bob Barnett's office. I don't know if I spoke to Bob Barnett or if I spoke to the person who works with him in his office. I called Mrs. Clinton, who was in Arkansas, and then I called Carolyn Huber, an assistant to the President who was working in the White House."(741)
In the first call, to Williams & Connolly, Mr. Barnett told her that he would send someone over to pick up the files. "When I had talked to Mr. Barnett after speaking to Mr. Nussbaum, I had indicated that I was going to send some files over as soon as they got together, and he said that he would send someone to get them."(742)
Later in the day, however, Ms. Williams shifted course -- for, as she now claims, an innocent reason. She was simply too tired to wait for the messenger to come from a law firm located near the White House:
And, quite frankly, I was tired. And when I thought about the time it would take -- if anyone has tried to get into the White House complex, the time it would take, both to get a messenger, clear them in and actually have them get in and collect the box, I decided I could be at home in that time, and I decided at that point that the sending and the waiting for someone to pick up the documents would have to wait until later.(743) She then asked Mr. Barnett not to send the messenger.(744)
Claiming to be unsure where to put the Clintons' personal files, Ms. Williams made her second phone call, to Mrs. Clinton in Arkansas:
I told her that there were personal files that weren't going to get to the lawyer because I was just tired, and I was going to put them in the White House, in the residence, and where did she want them.
* * *
It was a very short conversation. I know I had three points that I wanted to make. I was tired, the files weren't going, I was going to put them in the residence, where did she want them -- four points.(745) Ms. Williams claimed implausibly not to have previously spoken to Mrs. Clinton about the files. She testified that she did not tell Mrs. Clinton where she was or the contents of the files.(746) According to Ms. Williams, Mrs. Clinton did not ask any questions -- not even one, but instead merely told her to call Carolyn Huber.(747) This may seem strange, as it clearly did to the Committee, "but let me suggest to you that I could have told Mrs. Clinton that I was going to put 44 elephants in the White House the day after Vince died and she probably would have said okay."(748)
Ms. Williams then made her third and final telephone call, to Ms. Huber, in order to arrange the transfer of the files to the residence.(749)
Thus, Ms. Williams testified that, because she was tired, she made the independent determination to transfer the files to the residence. "I had determined that I was going to take the files to the residence if they weren't going to the personal lawyer. I made that determination."(750) She claimed to have received no instructions to move the files to the residence, and she called Mrs. Clinton only to ask where the files should be placed.(751)
Mr. Nussbaum had a different -- and less convoluted and more plausible -- recollection on this key point. He testified that he and Ms. Williams discussed moving the files to the White House residence. "Obviously, I presumed they were going to the residence, and I think Maggie and I probably discussed that. That's the most likely, send them to the residence, and talk to the Clintons and they will be sent from the residence on to their personal attorneys."(752) According to Mr. Nussbaum, he told Ms. Williams to take the files to the residence:
Simply take the files, give them to the Clintons, which means give them to the Clintons in their residence. . . . And when you get instructions from them as to which personal attorney, although it's probably going to be Williams & Connolly, we'll send it over to Williams & Connolly.(753) Ms. Williams said okay.(754)
Mr. Castleton had worked on the 1992 Clinton campaign and was serving as a special assistant in the White House Counsel's Office in July 1993.(755) His best recollection is that he picked up "a box or possibly two boxes"(756) in either Margaret William's office or Mrs. Clinton's office.(757) "I believe that the office in which I picked up the box had some dress, and my recollection is based on having seen her physically carrying them inside the office."(758)
Mr. Castleton and Ms. Williams then took the elevator down to the passage way connecting the offices of the West Wing with the White House residence.(759) They walked through the Palm Room into the residence.(760) They "stopped off for a brief time to pick up a set of keys or a key and proceeded up to the living quarters area of the residence."(761) When they got to the living quarters on the third floor, Mr. Castleton put the box or boxes "in a room off of a passageway" near the elevator.(762)
Ms. Huber had long ties to the Clintons. She served as office administrator for the Rose Law Firm for twelve years and administrator of the Governor's Mansion. Since February 1993, she has been Special Assistant to the President for Correspondence, a position that also called for her to maintain records and files in the residence.(763) She testified that, in the late afternoon on July 22, Ms. Williams "called and said that Mrs. Clinton had asked her to call me to take her to the residence to put this box in our third floor office. We call it an office. And we have a little closet in there where I keep their financial records, so she asked that I would take it up and put it there."(764) Ms. Williams had not previously spoken to Ms. Huber about storing records in the residence.(765)
Ms. Huber told Ms. Williams to call her when she was ready to come over to the residence:
I would meet them at the elevator that goes up into the residence. I met her and this young man -- I do not remember him -- Mr. Castleton. We went to the third floor. We went into the room where we have our office. There's a little closet in there. I got the key out of the desk drawer, unlocked the closet and he put the box in.(766) Ms. Huber then locked the door. She put the key back into the drawer, went downstairs, and left for home.(767) She did not see any dresses.(768)
Although Ms. Huber testified that the boxes were transported between 4:00 p.m. to 6:00 p.m.,(769) records maintained by the Secret Service indicate that Ms. Huber, Ms. Williams, and Mr. Castleton went up to the third floor of the Residence at 7:25 p.m. and came down at 7:32 p.m.(770) I.
The Reaction of Law Enforcement Officials to Mr. Nussbaum's Search.
When Mr. Adams and Mr. Margolis returned to the Justice Department after Mr. Nussbaum's search of Mr. Foster's office, they were angry. Phil Heymann remembered that "they were hurt and felt a little bit less than degraded, but almost degraded by the way it was done. And they were angry. And I remember their telling it to me in a way that they must have known was calculated to make me angry."(771) Mr. Margolis and Mr. Adams complained to Mr. Heymann that the law enforcement officials were not permitted to look at the documents and that they did not have "any role at all to play with regard to decisions made about the documents."(772) Cynthia Monaco's notes confirmed Mr. Heymann's recollection:
I later heard from David that in fact what had happened was that Bernie looked at the documents and told him that a privilege was asserted or not asserted. This was in contrast to what Phil and Bernie had decided the day before.(773)
Mr. Heymann recalled a specific complaint that Mr. Nussbaum had asserted executive privilege "in a fairly casual way."(774) Because Mr. Nussbaum alone saw the documents, "nobody knows what documents it is that Executive privilege is being asserted as to."(775) Mr. Margolis testified that Mr. Nussbaum would not show him a clipping of a newspaper article on the grounds that it would be "an invasion of the President's deliberative process."(776)
In any event, Mr. Heymann questioned the validity of Mr. Nussbaum's assertion of executive privilege against the Justice Department, the executive agency supervising the Office of the Legal Counsel, which had a primary function in protecting executive privilege. "[T]he people who were going to have access to the documents would be officials of the Department of Justice. . . . It wasn't like this was an outside body to whom there might be more reason to assert Executive privilege."(777)23
The Justice Department officials thought that they had been used by the White House to dress up Mr. Nussbaum's search of the office,(778) and they wanted to minimize the perception that law enforcement had actually participated in the search. According to Mr. Margolis: "Phil was troubled by that, and I think that's part of what he was talking about, that the impression was created that the Department of Justice did play a far larger role in the search than in fact it did."(779)
After the search, the press reported that Mr. Foster's office had been searched under the "supervision" of the Justice Department. This report prompted the Justice Department to issue a correction. According to Mr. Margolis: "I worried about something like that, and I remember with Mr. Heymann's permission, telling our press office to correct that, that the search was conducted in the presence of the Justice Department."(780) Mr. Heymann testified that "I directed that the Department of Justice put out a correction that we had not supervised, that we had simply been there as observers while the investigation was carried out -- while the search was carried out by the White House counsel."(781)
After talking to Mr. Margolis and Mr. Adams on the evening of July 22 about Mr. Nussbaum's search, Mr. Heymann became very angry. He said to Mr. Margolis, "`You know, Bernie was supposed to call me back and he didn't, and I am going to talk to him.'"(782) Mr. Heymann then went home and called Mr. Nussbaum. "I told him that I couldn't imagine why he would have treated me that way. How could he have told me that he was going to call back before he made any decision on how the search would be done and then not call back?"(783) Mr. Heymann said to Mr. Nussbaum, "You misused us."(784) "I meant that he had used Justice Department attorneys in a way that suggested that the Justice Department was playing a significant role in reviewing documents when they had come back and told me they felt like they were not playing any useful role there."(785)
Exasperated with Mr. Nussbaum's handling of the search, Mr. Heymann asked him: "`Bernie, are you hiding something?'"(786) According to Mr. Heymann, Mr. Nussbaum assured him that "no, Phil, I promise you we're not hiding something."(787)
Incredibly, Mr. Nussbaum denies recalling this heated conversation with Mr. Heymann.(788)
V. July 26, 1995. A.
The Existence of the Torn-Up Note Is Finally Revealed to Law Enforcement.
The President, Mrs. Clinton, and most of the senior White House staff traveled to Arkansas for Mr. Foster's funeral on Friday, July 23, 1993. On Monday, July 26, 1993, Mr. Nussbaum asked Mr. Neuwirth to prepare an inventory of the remaining contents of Mr. Foster's office.
In the course of preparing the inventory, according to Mr. Neuwirth, he made an unexpected discovery in Mr. Foster's briefcase:
On Monday the 26th at Mr. Nussbaum's request I was preparing an inventory of the contents of Mr. Foster's office. One of the things that I did in connection with that inventory was to put into a box towards the latter part of my inventory process items that belonged to Mr. Foster personally, like photographs. And in the process of putting materials in that box I saw the brief bag leaning against the back wall of Mr. Foster's office. I understood it to be empty. I knew that it belonged to Mr. Foster. I picked it up and brought it to put into the box. I had laid two large -- one or two or maybe even three large black and white photographs of Mr. Foster and his daughter with the President on the top of the box, and in an effort to avoid damaging those photographs, I turned the briefcase to fit it or the brief bag to fit it into the box, and in the process of turning it, scraps of paper fell out of the brief bag.(789)
Mr. Neuwirth testified that, after he saw the pieces of paper falling out of the briefcase, he picked them up. At that point, he recognized that "there was handwriting on them that looked like Mr. Foster's handwriting, with which I was familiar."(790) He then looked in the bag for more pieces of paper. Mr. Neuwirth then went to Mr. Nussbaum's office, which was adjacent to Mr. Foster's, and attempted to reassemble the torn up note on Mr. Nussbaum's conference table.(791)
Mr. Neuwirth testified that, after he assembled the note, he went out to the secretarial area of the White House Counsel's suite and asked for Mr. Nussbaum.(792)
Mr. Nussbaum testified that he came back to his office at about 3:00 p.m. and found Mr. Neuwirth sitting at the conference table putting scraps of paper together.(793) Mr. Nussbaum said, "What are you doing?" Mr. Neuwirth replied, "I just found these. I was packing Vince's briefcase to send back along with his other personal effects and I turn over the briefcase and these things floated out. And I looked down and saw handwriting on them so I picked them up to see if I could put them together, and I'm putting them together."(794) When Mr. Neuwirth was done, he told Mr. Nussbaum to look at the assembled note. "[W]e saw that it was in Vince's handwriting, and it was a list of things, reflecting things that were troubling Vince."(795)
Mr. Neuwirth discovered 27 pieces of a single sheet of yellow lined paper, 3-hole punched, which had been torn into 28 pieces.(796) One piece was missing from the bottom third of the page, which appeared to be blank. On the top approximate two-third of the page were written the following:
I made mistakes from ignorance, inexperience
I did not knowingly violate any law or standard
No one in the White House, to my knowledge,
violated any law or standard of conduct, including
any action in the travel office. There was no intent
to benefit any individual or any group.
The FBI lied in their report to the AG
The press is covering up the illegal benefits
they received from the travel staff
The GOP has lied and misrepresented its
knowledge and role and covered up a prior investigation
The Ushers Office plotted to have excessive
costs incurred, taking advantage of Kaki and HRC
The public will never believe the innocence
of the Clintons and their loyal staff
The WSJ editors lie without consequence
I was not meant for the job or the spotlight
of public life in Washington. Here ruining people
is considered sport.(797) Although the note was not signed, the FBI determined that it was written in Mr. Foster's hand.(798)24
Mr. Nussbaum then went to White House Chief of Staff Mack McLarty's office to tell him about the note, but realized that Mr. McLarty was not there; he was in Chicago with the President. "So I saw Burton, who was a logical person to talk to in any event because he was the one who had been dealing with me, and I said look, Steve Neuwirth found something, and you should see it and let's go up and see it. And we walked up, and he went over to read it."(799) According to Mr. B: "Mr. Nussbaum came into the chief of staff's reception area asking for Mr. McLarty. We informed him that he was out of town. Mr. Nussbaum asked me to accompany him to his office, and I did that."(800) Mr. Burton went to Mr. Nussbaum's office and read the note in front of Mr. Nussbaum and Mr. Neuwirth.(801)
Deborah Gorham and Linda Tripp were at their desks in the secretarial area of the White House Counsel's suite, right outside Mr. Nussbaum's office, on the afternoon of July 26. Ms. Gorham testified that Mr. Neuwirth came out of Mr. Foster's office with Mr. Foster's briefcase and went into Mr. Nussbaum's office. After Mr. Nussbaum returned with Mr. Burton, according to Ms. Gorham, others came into Mr. Nussbaum's office. "And then I believe Mr. Burton, Bill Burton might have appeared next going into Mr. Nussbaum's office, and then other people, I think, came in straggling, but I don't recall who they were."(802)
Ms. Tripp recalled that she later saw Clifford Sloan in Mr. Nussbaum's office. "It was later in the evening; I was in the reception area. The door to Bernie's office was closed. At one point in time Cliff Sloan came out of Bernie's office and asked me if it was possible to remove one of the typewriters to bring back into Bernie's office."(803) Ms. Tripp asked him why he wanted a typewriter when there were five computers in the suite, and Mr. Sloan replied that he needed a typewriter.(804) There were two typewriters in the office, but Ms. Tripp explained to Mr. Sloan that "the way they were configured and plugged in under all the massive furniture with the taping to the carpet and the commingling of all the myriad cable underneath, that it would be a very difficult endeavor, and then I offered to get him a typewriter -- excuse me, from elsewhere."(805) Mr. Sloan then said that he didn't want her to do that, and walked back into Mr. Nussbaum's office. Mr. Nussbaum did not recall wanting a typewriter in his office, although he remembered wanting to transcribe the note.(806) Mr. Sloan testified that he was sure that Ms. Tripp was mistaken, since he did not know of the note until the next day, July 27.(807)
The next morning, on July 27, Ms. Gorham and Ms. Tripp exchanged a series of electronic mail messages about the peculiar circumstances surrounding the discovery of the note. Ms. Gorham wrote to Ms. Tripp: "Everything from his briefcase is missing. . . . I do not know what else was in there but the bag is totally cleaned out except for one collar stay."(808) In another message to Ms. Tripp, Ms. Gorham wrote: "On Wednesday, I told Bernie that VWF had placed shredded remnants of personal documents in the bag. On Thursday, I told Bernie in front of everybody that shredded remnants were in the bag."(809) Ms. Tripp replied that she remembered Ms. Gorham telling Mr. Nussbaum about the shredded pieces at the meeting on Wednesday, July 21, when the White House Counsel's office briefed the staff about the Park Police interviews. Ms. Tripp's message ended on a note of exasperation: "So it took until MONDAY to figure out it should be looked at? Christ. And we're the support staff???????????"(810)
Ms. Gorham testified that, some time in the evening of July 26 or the morning of July 27, Mr. Nussbaum grilled her about what she had seen in Mr. Foster's briefcase in the previous week:
Ms. Gorham: Mr. Nussbaum asked me to sit at the chair on the opposite side of his table and asked me if I had seen anything in the bottom of Vince's briefcase. And I told him that I had only seen the color yellow, and I had seen the top of the Goldcraft third cut folder, and that was all I had seen.
Mr. Chertoff: When you say a Goldcraft third cut folder, you mean a folder like this, a manila-type folder?
Ms. Gorham: Yes, sir.
Mr. Chertoff: And you told Mr. Nussbaum you had seen that in Mr. Foster's briefcase at an earlier time?
Ms. Gorham: I told him I had seen the top of that cut of the folder.
Mr. Chertoff: And what did Mr. Nussbaum say to you?
Ms. Gorham: He asked me repeatedly what I had seen. He asked me if the yellow could have been paper. Could it have been lined paper? Could it have been -- what it could have been? And I told him repeatedly, numerous times, that all that I had seen out of the corner of my eye was the color yellow and the top of a Goldcraft third cut folder such as you have.
Mr. Chertoff: Was there anybody else in the room during this discussion with Mr. Nussbaum?
Ms. Gorham: Not that I recall.
Mr. Chertoff: Have you previously described this as an interrogation?
Ms. Gorham: That is exactly how I have described and that is how--that is what took place.
Mr. Chertoff: And would you agree that he was adamant and very forceful in putting his questions to you?
Ms. Gorham: Indeed I would.
Mr. Chertoff: I take it this experience is still very vivid in your mind?
Ms. Gorham: Absolutely.(811)
Mr. Nussbaum testified that he had "some kind of a recollection" of questioning Ms. Gorham, but he denies grilling or interrogating her.(812) He did not recall the specifics of his conversation with Ms. Gorham. He did not recall her mentioning that she saw file folders or yellow paper in the briefcase.(813) B.
The White House's Decision Not to Disclose the Note Immediately to Law Enforcement.
At one point in the afternoon, Mr. Nussbaum talked with Mr. Sloan and Mr. Neuwirth about what to do with the note. They agreed that the note was not a suicide note, but Mr. Nussbaum knew it was the type of document in which the law enforcement officials would have a strong interest. "So it was not clearly a suicide note and therefore, the issue was raised, is this the kind of thing that we were searching for that day. That was -- to me it was clear it was the kind of thing."(814) Mr. Burton suggested that the note was possibly shielded from disclosure by the attorney-client privilege, or other privacy interests.
According to Mr. Nussbaum, Mr. Burton argued that they should research these issues before deciding whether to turn the note over to the authorities.(815) Mr. Burton testified that, although he did not initiate the discussion, he recalled that "an issue of privilege came up with respect to the note in that it was my understanding that counsel's office was going to look to see if there was anything in the note that gave rise to privilege."(816) Although Mr. Nussbaum testified that Mr. Burton wanted to know whether there would be "an obstruction of justice issue" if they did not disclose the note to the authorities,(817) Mr. Burton testified that "[i]t was never considered seriously or trivially or any other way that the note would not be turned over. From the time the note was found, certainly from the time I knew of the existence of the note, that was never in doubt."(818)
Mr. Nussbaum testified that, out of concern for the privacy of Mrs. Foster and respect for the President, he decided to wait until the next day, July 27, before advising the police of the existence of the note. "I don't want Lisa Foster to hear about this on the radio or on TV:"(819)
Now, I know I can call her up and read it to her on the phone, but I wanted her to see this thing. I wanted her to be able to digest it. And she's in Arkansas. I called Jim Hamilton. I had a concern about Lisa Foster. That was really my primary concern. I had a concern about Lisa Foster, so I called Hamilton, and I discovered -- I believe I called Hamilton. I discovered shortly thereafter that Lisa was going to be in the next day. She was coming in to Washington the next day in connection with -- she's returning to Washington after the funeral. She's going to be in the next day on the 22nd. The President was out of town. He was to come in late that night. He would be available the next day.
I thought it was common decency, before I turn this over to law enforcement, to let Lisa see it and digest it and let the President see it and digest it, and I didn't see any harm in letting them have that. In the meantime, we could do the research that Burton was talking about, although I didn't expect that research was going to produce anything that would change my decision. So I made the decision to show the note the next day to Lisa and to show it to the President if he wanted to see it when he came in the next day.(820)
Mr. Nussbaum and Mr. Burton then called Mack McLarty, who was in Chicago with the President. Mr. McLarty told David Gergen, who recommended that Mr. McLarty tell the President and then promptly turn the note over to the authorities.(821) Mr. McLarty decided, however, to wait until the next day, when the President returned to Washington, D.C., to take any action, including informing the President of the existence of the note.(822)
Mr. Nussbaum assumed, on July 26, that Mr. McLarty would tell President Clinton about the note.(823) Senator Grams questioned Mr. McLarty's decision to wait, even though Mr. Foster was a personal friend of the President and the "apparent suicide of the White House deputy counsel was big news at the time."(824) Mr. McLarty replied:
When the note or scraps of paper were reported to me by telephone, I was perplexed when I heard of it. We had just put, had the funeral for Vince and were moving forward, and I was perplexed by it. I was in a hotel room in Chicago. I didn't understand it. It did not refer to suicide. Did not have a salutation or a signature. At that point there were issues - there were legal issues that were raised with me that I took seriously, that were raised in a serious way, that Mr. Nussbaum and others wanted to reflect on. There was the issue of notifying the family. And because I was perplexed by the note, I did want to see it, and I simply felt that it was not the correct course at that time to tell the President of a situation that was really not complete, that had not been reviewed and we had no plan of action.(825) Mr. Gergen took a commercial flight back from Chicago on July 26. The President and Mr. McLarty flew back to Washington together, but Mr. McLarty claims that he did not tell the President about the note during the entire flight.(826) Mr. Nussbaum did not wait at the White House on July 26 for the President's return.(827) C.
Mrs. Clinton and Susan Thomases Are Told of the "Discovery" of the Note.
In the afternoon of July 26, while Mr. Burton was still in Mr. Nussbaum's office, Mr. Nussbaum left to get Mrs. Clinton. Mr. Nussbaum recalled Mrs. Clinton's having an emotional reaction when she saw the note. "She walked over and glanced -- looked at it. I may have told her -- this is the thing. I may have told her look, we found something Vince wrote. I'm not positive of it. I don't have a specific memory of it, but it's something Vince wrote. It's something you should read. So my best memory is she sort of knew what she was going to look at, and she just -- [S]he looked at it, and all of a sudden she had some sort of an emotional -- she began to read it but she didn't read it. She didn't appear to read it. When she sat down and looked at it, she just said -- she had an emotional reaction and she said I just can't deal with this. This is like -- I just can't deal with this. Bernie, you deal with this. And she walked out of my office."(828)
In Mr. Burton's view, however, Mrs. Clinton had a different reaction to the note. According to Mr. Burton, as Mr. Nussbaum was reading her the note, "she interrupted him and questioned her having been brought into the room and left the room."(829) "She explained that she did not understand why she had been brought into the room, that the decisions to be made concerning the privilege issues, notifying the Foster family were other people's decision to make and she left the room."(830)
Mr. Nussbaum testified that Mrs. Clinton did not discuss with him at all the handling of the note.(831)
Susan Thomases testified that, at some point on July 26 and before even the President, the Foster family, the Park Police, or the Department of Justice were notified,(832) Mr. Nussbaum called and told her about the note. "The substance is that a writing had been found and that he was going to wait until the President got back to show it to the President."(833) Mr. Nussbaum denied contacting Ms. Thomases on July 26 about the note.(834)
The Park Police and the FBI later interviewed, among others, Mr. Burton, Mr. Gergen, Mr. McLarty, Mr. Neuwirth, Mr. Nussbaum, and Mr. Sloan about the circumstances surrounding the discovery of the note. None of the reports of these interviews mentioned the fact that Mrs. Clinton and Ms. Thomases were among those who saw or knew of the note before it was disclosed to the law enforcement officials.(835)
Mr. Neuwirth testified that, although he was not asked about it, he told the FBI during his interviews that the Mrs. Clinton had been made aware of the note:
I remember being asked questions. I remember being conscious of the fact that when they asked me questions about what happened on that night, I had not been asked questions that would have covered the period when the First Lady was present, but I went out of my way at the conclusion of the interview to tell them -- when they asked me who else I knew had been told about the note, I went out of my way to point out that the First Lady was one of the people that I knew had been made aware of the note prior to the time that I understood it had been given to law enforcement officials. And I'm very conscious of the fact that I made that effort precisely because I didn't think I had been asked a question earlier in which there would have been an opportunity to talk about the fact that the First Lady had come to look at it that night.(836)
However, the FBI report of Mr. Neuwirth's interview, which summarized his account of the time between the discovery of the note and its disclosure to law enforcement, did not mention that Mrs. Clinton had been told of the note -- an important fact that a trained agent would almost certainly include in such a report.(837) The handwritten notes of that interview, taken by Agent Salter, recorded a lengthy narrative by Mr. Neuwirth of the events on July 26 and July 27. But nowhere in the narrative, according to the notes, did Mr. Neuwirth refer to either Mrs. Clinton or Ms. Thomases.(838)
Mrs. Clinton's schedule for July 27, the day after the discovery of the note, indicated that Mrs. Clinton had a private meeting in her office with Mr. Nussbaum and Mr. Neuwirth from 2:30 p.m. to 3:00 p.m.--several hours before the note was turned over to the authorities.(839) The schedule, however, did not specify the topic of the meeting.
Mr. Burton testified that he does not recall any discussions in the White House about whether the law enforcement authorities should be told that Mrs. Clinton had seen the note.(840) Curiously, Mr. Burton's notes of a staff meeting on July 28, the day after the note was disclosed to the authorities, listed "HRC" with a telling arrow pointing to an adjacent letter "n".(841) Mr. Burton testified that he did not know what his own notes -- particularly the reference to the letter "n" -- meant.(842)
VI. July 27, 1993 A.
The Review and Transfer of Clinton Personal Files From the White House Residence to Williams & Connolly.
On the afternoon of July 22, and after Mr. Nussbaum's real search, Thomas Castleton, an assistant in the White House Counsel's office, helped Margaret Williams remove boxes from Mr. Foster's office to the White House Residence. As they were walking, Ms. Williams told Mr. Castleton that the boxes had to be taken to the residence for an important purpose: the President or Mrs. Clinton needed to review their contents.(843) According to Mr. Castleton: "What [Ms. Williams] said was that the boxes contained personal and financial records pertaining to the First Family and that we were moving the boxes to the residence for them to be reviewed."(844) Ms. Williams said that the files needed to be reviewed because "they did not know what was in these files and needed to determine whether there was something of a personal nature or not."(845) "She said that the President or the First Lady had to review the contents of the boxes to determine what was in them."(846)
Ms. Williams did not recall any such conversation with Mr. Castleton. Ms. Williams testified that such a conversation would be out of character for her because "it is highly unlikely I would have this kind of discussion with an intern:"(847)
Well, I would like to say affirmatively I did not say it because I can't imagine why I would have that discussion with an intern about the files going to the President and the First Lady. I know that I told him we were going to the residence because I figured he needed to know where he was going, but I can't imagine that I said more than that. So I do not recall having that discussion with him.(848)
Mr. Castleton took exception with Ms. Williams' characterization of his role at the White House: he was not an intern, but a special assistant to the White House Counsel.(849)
Ms. Williams claimed that no one reviewed the Clintons' personal files while they were stored in the residence. According to Ms. Williams, Carolyn Huber gave Ms. Williams the key after Ms. Huber locked the closet on Thursday, July 22.(850) Ms. Williams put the key on her key chain and held it through the weekend, taking it with her to Mr. Foster's funeral in Arkansas.(851)
Ms. Huber, however, testified that, after she locked the closet on July 22, she returned the key to its usual keeping place, in an envelope in the desk drawer of the office in the residence.(852) The envelope was marked clearly: "It said `key to the closet.'"(853) The drawer was not locked, according to Ms. Huber, and therefore the key was readily available to anyone with access to the residence.(854)
The plot thickens. Although Ms. Williams testified that the files remained undisturbed until she transferred them to Williams & Connolly on July 27, Mr. Nussbaum testified that, a couple of days after the files were removed from Mr. Foster's office on July 22, Ms. Williams returned a Mr. Foster file to him because it should not have been among the Clintons' personal documents. "I'm not quite sure Ms. Williams returned the document. I believe Ms. Williams returned the document. A residence file was returned. There was a file that was returned because we were making an effort to send over solely personal documents which had been used -- yes -- which were in the White House counsel's office because there was an official purpose."(855)25
Mrs. Clinton's official schedule showed that she had two private meetings with Ms. Williams on July 27, one from 9:15 a.m. to 9:30 a.m. and another from 10:30 a.m. to 11:30 a.m.(856) Although the schedule listed Mrs. Clinton's office as the location of the meetings, records of movements within the White House maintained by the Secret Service and the White House Usher's Office indicate that Mrs. Clinton did not leave the White House Residence at all that day.(857) Records maintained by the Secret Service and the White House Usher's office indicated that Ms. Williams was in the White House Residence on July 27 from 10:31 a.m. to 12:05 p.m., 1:35 p.m. to 2:25 p.m., and 3:20 p.m. to 4:43 p.m.(858)
Ms. Williams testified that on July 27, Robert Barnett, a partner at the law firm Williams & Connolly and the Clintons' personal attorney, came to the White House to see Mrs. Clinton. By chance, Ms. Williams claims that she ran into Mr. Barnett while he was on the second floor of the White House Residence talking to Mrs. Clinton.(859) According to Ms. Williams, Mr. Barnett said, "you know what? It would make sense to get those documents over to the office,"(860) referring to the documents that Ms. Williams had moved from Mr. Foster's office to the Residence on July 22. Mr. Barnett then called from the residence for another person from Williams & Connolly to come for the documents. When that person arrived, according to Ms. Williams, she accompanied him to the residence, unlocked the closet with the key on her keyring, and pointed the documents out to him.(861)
Mr. Barnett had a far different and more believable recollection of Ms. Williams' role in the transfer of the files. He testified that Ms. Williams called him specifically to arrange a transfer of the files, and "I spoke with her about picking up the documents."(862) On July 27, he went to the White House to pick up the documents. Capricia Marshall, Ms. Clinton's assistant, met him at the gate, signed him in with the Secret Service, and escorted him to the Second Floor to wait for Ms. Williams.(863) Records show that Mr. Barnett arrived at the White House at 2:57 p.m.(864), registering "First Lady" as his visitee with Secret Service, and entered the White House Residence at 3:03 p.m.(865) About 20 minutes later, Ms. Williams came and escorted Mr. Barnett up to the third floor closet where the files were kept.(866) The box was open, and Mr. Barnett went through the files, briefly examining their contents.(867) When he finished the review, Mr. Barnett asked Ms. Williams for tape and sealed the box.(868)
Mr. Barnett then called Ingram P. Barlow, the comptroller of Williams & Connolly, to come over and pick up the box from the White House.(869) Mr. Barnett gave Ms. Williams Mr. Barlow's name and social security number for her to clear him in with the Secret Service, and left at 4:30 p.m.(870) Mr. Barnett denied seeing Mrs. Clinton while he was in the White House Residence.(871)
Mr. Barlow of Williams & Connolly arrived at the White House Residence at 4:38 p.m.(872) He was escorted to the third floor closet, where he took possession of the box. Consistent with Mr. Barnett's testimony, the box was sealed in packing tape when Mr. Barlow saw it in the closet.(873)
Mr. Barnett called Susan Thomases at her office on July 26, 1993 and left a message.(874) Ms. Thomases did not recall returning Mr. Barnett's call, nor did she recall making plans to go to the White House on July 27.(875) Secret Service records, however, indicate that Susan Thomases entered the White House at 2:50 p.m. on July 27.(876) Because Ms. Thomases had a White House pass at that time, the Secret Service entry records did not list the purpose of her visit or her intended destination. Records maintained at the White House Residence, however, indicated that she entered the Residence at 3:08 p.m., five minutes after Mr. Barnett. Records maintained by the White House Residence Usher's Office further indicate that Mr. Barnett and Ms. Thomases exited the White House Residence together.(877) Mr. Barnett testified, however, that he did not recall seeing Ms. Thomases in the White House Residence.
Although Mr. Barnett testified that he did not recall seeing Mrs. Clinton during his visit on July 27, Ms. Williams testified that she recalled seeing Mr. Barnett talking with Mrs. Clinton when she ran into him in the Residence that afternoon.
Telephone records produced by Ms. Thomases indicate that she called Patricia Solis Doyle, Mrs. Clinton's scheduler, on the evening of July 26, 1993.(878) Ms. Thomases does not recall why she spoke with Ms. Solis, and does not recall whether she called Ms. Solis to schedule an appointment to see Mrs. Clinton.(879)
On the morning of July 27, Ms. Solis called Ms. Thomases in her New York office and left a message. The message read, "HRC wants to see you today."(880) The message contained a check mark, which, according to Ms. Thomases, signified that she had returned the call. Indeed, telephone records indicate that, at 11:33 a.m. on July 27, Ms. Thomases called Ms. Solis from her Washington office and spoke for 10 minutes.(881) Her telephone records further indicate that, in the 40 minutes between 12:20 p.m. and 1:00 p.m. on July 27, Ms. Thomases called the White House four times. Later that afternoon, at 1:30 p.m., Ms. Thomases received another message from Evelyn Lieberman in the First Lady's office. It stated, "Please call Hillary."(882)
Ms. Thomases testified that as of the end of the day on July 26, she did not have any firm plan or compelling reason to come to Washington the next day, July 27.(883) Her normal day to be in Washington was Wednesday. According to Ms. Solis, it was not customary for Mrs. Clinton to summon Ms. Thomases to Washington on a particular day. "That's not normally the way it works. If Mrs. Clinton wanted to see Susan, she'd ask is she in town, do you know what her schedule is, can she come by."(884)
Interestingly, Ms. Thomases professed that she could not explain why she went to Washington on July 27. Ms. Thomases did not recall scheduling a meeting with or seeing the Mrs. Clinton on July 27.(885) Indeed, Ms. Thomases testified that she did not even have a specific recollection of even being in the White House Residence that day. Secret Service records and the White House Residence Usher's logs indicate, however, that Ms. Thomases arrived at the White House at 2:50 p.m. on July 27, and went up to the second floor of the White House Residence at 3:08 p.m.(886) In addition, records indicate that Ms. Thomases made two telephone calls from the White House Residence on July 27, 1993, and charged them to her telephone calling card.(887) B.
White House Deliberations About the Handling of the Note.
In the morning of July 27th, after the regular White House staff meeting, Mr. Nussbaum met with Mr. McLarty, Mr. Burton, and Mr. Gergen to discuss how Mr. Foster's note should be handled.(888) Mr. McLarty thought "the note would need to be provided to the authorities, and it eventually would become public knowledge; either we would disclose it or it would become public knowledge." However, there were "issues outstanding" that he wanted to discuss with the other White House officials.(889) According to Mr. Gergen:, the meeting was resolved in favor of disclosing the note to the authorities as soon as possible. "[T]here was a unanimous agreement that the issues that had been raised the night before had been resolved in the minds of those who had raised them, and it was a unanimous agreement to go forward."(890) Mr. McLarty confirmed that at the meeting the "concerns over executive privilege had been settled."(891)
Jim Hamilton, an attorney representing the Foster family, joined the meeting halfway through, at about 11:00 a.m. He introduced a concern that was new to Mr. Gergen:
He took the position -- I do not know whether, I do not know whether he knew about the existence of the note prior to coming in the room, or whether he was told, but he was very strongly of the view that before anything was done with the note, Mrs. Foster needed to be informed of the contents and needed to be informed that there was a note, and he needed to sit down with her and talk about it.(892) Mr. Hamilton told those at the meeting that Mrs. Foster was flying from Arkansas, and would arrive early in the afternoon, at about 2:30 p.m.(893) Mr. Hamilton said that he agreed that the note should be turned over to the authorities, but he did not know what Mrs. Foster's reaction would be to the note.(894) After consulting with Mrs. Foster, Mr. Hamilton returned to the White House and said that Mrs. Foster assented to turning the note over to the authorities.(895)
White House officials also discussed how to disclose the note to the authorities. "I think there'd been some discussion in our staff meetings about whether it ought to go to the Justice Department or the Park Police," Mr. Gergen said. "There was some uncertainty on the part of the White House about what the appropriate channel was to make sure it got there."(896) The officials discussed whether the Park Police could be trusted not to leak the existence or contents of the note to the press.(897) They also feared that disclosure of Mr. Foster's note might prompt the authorities to reopen investigations into the matters spelled out in the note. "I recall there was some speculation about whether the contents of the note might prompt legal authorities to look further in to the issues raised by the note. In other words, to go beyond the scope of the immediate investigation over his mental state."(898)
The controversy over the White House Travel Office was specifically mentioned.(899) According to Mr. Gergen:
I believe with regard to the Travelgate matter [he] said the FBI lied. He accused the FBI of lying, I believe -- I can't -- I don't remember the exact details of this, but there was a discussion within the White House of whether upon receipt of that or once the note was turned over to the authorities -- this was discussions I recall we had on Tuesday, on the day when the note was turned over -- whether that would prompt or the Attorney General would feel forced, having received that, to launch an investigation about what he was talking about. You know, did the FBI lie? That was the point that I was trying to make in the deposition. Inevitably, there were points raised in the note that were clearly going to prompt a lot of attention by the press and by others, and that particular point was on the one about the FBI lying.(900)26
The documents produced by the White House to the Special Committee included two pages of undated, handwritten notes by Bill Burton. At the top the first page, Mr. Burton listed the names of the persons present at the meeting on July 27: Jim Hamilton, Bernard Nussbaum, Bill Burton, David Gergen, Mack McLarty.(901) Further down in his notes, Mr. Burton wrote "2 pts" with an arrow pointing to the following:
far happier if disc.
if someone other than Bernie
if worried about usher's office
discuss with me.(902) On the second page, Mr. Burton wrote the following: "We have disc a personal writing of Mr. Foster reflecting his depressed state. In deference to the family, no further commt."(903) Mr. Burton testified that "disc." on the first page meant "discussed" or "disclosed", and the same notation of the second page was shorthand for "discovered". Senator Grams noted the inconsistency in Mr. Burton's answer and pointed out further that, on the first page, when Mr. Burton meant "discussed" in the last line of the notes, he wrote out the entire word. Mr. Burton explained that he used a variety of abbreviations. "I use some standard Associated Press abbreviations; I use some of my own shorthand. Sometimes d-i-s-c means discussed. Sometimes it means discovered. Sometimes it means disclosed."(904) C.
The President Is Told of the Note.
Mr. McLarty called Mrs. Foster's house after the morning meeting and then learned that Mrs. Foster was traveling back from Arkansas to Washington.(905) She arrived in Washington in the afternoon, at about 2:30 p.m. She was then taken to the White House to view the note and agreed to disclose the note to the authorities.(906)
Even though it had been agreed at the morning meeting that the President would be notified as soon as possible so that the note could be turned over to the authorities, Mr. McLarty claims that he did not notify the President until late in the afternoon because the President had a full schedule and because Mrs. Foster had not been notified.(907) At 6:00 p.m.,(908) Mr. McLarty, Mr. Gergen, and Mr. Nussbaum went into the Oval Office to tell the President about the note. According to Mr. McLarty, Mr. Nussbaum explained to the President the existence of the note and either "read him the note or outlined what was in the contents." The three men explained to the President that Mrs. Foster had already been notified, or would be shortly, and that they intended to turn the note over to the authorities. Mr. McLarty testified that the President accepted their report, and "he said do with it as you think is right, give it to the authorities; and that was about it."(909)
Mr. Gergen testified that the President did not indicate that he knew about the note before the 6:00 p.m. meeting, although Mr. Gergen "couldn't tell from his reaction whether he knew."(910) By then, Mrs. Clinton had known of the note for over 24 hours. Senator Grams observed that "[i]t seems kind of strange knowing that this was one of his best friends and all of the speculation surrounding looking for a suicide note that night, and then finally when something was found, he didn't -- wasn't inquisitive; he didn't inquire about it; he didn't seem to want to know more information except for to say you handle it the best way you know how." (911) D.
The White House Finally Turns the Note Over to Law Enforcement.
Some time in the afternoon, Mr. McLarty called Attorney General Janet Reno and asked her to come to the White House that evening, at about 7:00 p.m.(912) Deputy Attorney General Heymann recalled accompanying Attorney General Reno to the White House:
I rode over with the Attorney General on the evening of Tuesday the 27th. We had a 7:00 meeting. We had not been told what it was about, though. I thought it was probably about the Foster matter. We were shown into Mr. McLarty's office. The only -- I think at first only Mr. Gergen, David Gergen was there. Then Mr. Nussbaum came in and Mr. Burton, I believe, and certainly Mr. McLarty. There had been some small talk before that.(913)
Mr. Nussbaum began the meeting by informing Attorney General Reno and Mr. Heymann of the existence of the note, producing the note, and reading them a transcript of the note. Mr. Nussbaum then asked the Justice Department Officials what "should be done with it." Attorney General Reno told Mr. Nussbaum to "turn it over to the Park Police immediately."(914)
Attorney General Reno questioned Mr. Nussbaum about the long delay in disclosing the note to the proper authorities:
She then asked why are we just getting it now if it was found I guess it's 30 hours -- it was 30 hours before then. The White House people, I don't know whether it was Mr. Nussbaum or who, said that there was -- they wanted first to show it to Mrs. Foster and they wanted to show it to the President who might, if he had wanted to, have asserted executive privilege, they said. They said they were not able to get to the President until late on the 27th and as soon as they got to the President and made the President aware of the note, they had called us.(915) Attorney General Reno, who had to leave, asked Mr. Heymann to stay and take care of the matter. Mr. Heymann then called Mr. Margolis and asked him to call the Park Police immediately.(916)
Apparently unbeknownst to Attorney General Reno and Deputy Attorney General Heymann, Webster Hubbell, the Associate Attorney General, was in the White House Residence while Ms. Reno and Mr. Heymann were in the White House to receive the note. Mr. Hubbell's records indicate that Mrs. Clinton had called his office and left a message at 2:30 p.m. that afternoon.(917) White House logs indicate that Mr. Hubbell arrived at the Residence at 6:29 p.m. and remained there until 8:19 p.m.(918) Ms. Thomases, who was in the Residence at the same time as Mrs. Clinton and Mr. Hubbell, exited the White House at approximately the same time.(919) Neither Ms. Thomases nor Mr. Hubbell recalled discussing the note with each other or with Mrs. Clinton on that day. Ms. Thomases testified, "I don't know that Hillary Clinton and I have ever discussed that writing."(920)
Ms. Thomases acknowledged that she met with Mr. Hubbell and Mrs. Clinton in the Residence following Mr. Foster's death, but she did not recall whether the gathering occurred on July 27:(921)27 She claimed that the three shared only memories of Mr. Foster:
We just talked about the tragedy of Vince's death and we talked about how sad it was, and I remember that the first time the three of us were together, we talked a little bit about some of the good times that we had had together and old times before Bill Clinton was elected President, and in the days in which I used to see them.(922)
Mr. Hubbell testified that he learned about the note when he "read it in the newspaper."(923) When asked about his trip to the White House on July 27, Mr. Hubbell testified that he went to the White House to give Mrs. Clinton an account of Mr. Foster's funeral after Mrs. Clinton left. "I remember that I had to go to the White House to tell Hillary about what had gone on after they left the funeral, but I don't have any memory of doing it."(924) He testified that it was part of the grieving process: "We, as Southerners, we have large long funerals and we get together and drink and eat and talk and do it for days. And Hillary had missed that grieving process, and I remember my wife saying, Hillary needs to talk to you. She needs to understand who was there and things of that sort."(925) Implausibly, he did not recall seeing Ms. Thomases or discuss the Mr. Foster's note with Mrs. Clinton.(926)
After Mr. Heymann called the Park Police, Officer Joseph Megby of the Park Police went to the White House. Mr. Nussbaum began to assemble the note.(927) Some of the pieces fell, and Mr. Nussbaum and others picked them up. Mr. Heymann testified that "the note fell down, a number of the pieces of the note fell down on the floor and there was a scramble to pick them up."(928) He noted at the time that "by the time it had been reassembled, the fingerprints of everybody in the White House were on it. So if anybody wanted fingerprints, they had all the fingerprints in the world."(929)28
Mr. Nussbaum then gave the note to Officer Megby and concluded the meeting. Heymann urged Officer Megby to ask any questions that he might have, but the officer declined. It was not until later that Mr. Heymann learned that Officer Megby "was simply a duty officer. This was probably all new to him."(930)
The circumstances surrounding the discovery of the note and the delay in turning it over to the authorities disturbed Mr. Heymann and caused him to question the level of cooperation that the White House provided to the investigation into Mr. Foster's death. The next day, July 28, 1993, Mr. Heymann met with Mr. Margolis and instructed him to ask the FBI to conduct a thorough investigation into the discovery of the note. Mr. Heymann specifically told them to be "very aggressive,"(931) and Mr. Margolis described the investigation as an "800-pound gorilla."(932) Mr. Heymann and Mr. Margolis identified the jurisdictional predicate for the investigation as obstruction of justice,(933) and FBI documents confirmed that the subject matter was "possible obstruction of justice of U.S. Park Police investigation of death of Vincent Foster, Counsel to the President."(934)
This sentiment was shared by the Park Police, who complained about the lack of White House cooperation to number two official of the Interior Department. Mr. Heymann testified that, on July 29, 1993, he received a call from Thomas Collier, the Chief of Staff to the Secretary of Interior, asking for help. Mr. Collier told Mr. Heymann that "the Park Police are very, very upset about the investigation.... He said that they really couldn't get the cooperation that they wanted, and he said that he wanted to pull the Park Police out and he'd like me to substitute the FBI for the Park Police.".(935) Mr. Heymann did not want to pull the Park Police from the investigation, but told Mr. Collier that the FBI, at Mr. Heymann's request, were already involved in the White House investigation. Mr. Heymann also assured Mr. Collier that he would intervene with the White House to ensure future cooperation.
Mr. Heymann then called David Gergen at the White House and explained the problems that the Park Police investigators were encountering. Mr. Gergen told Mr. Heymann that he would call back in a few minutes so that Mr. Gergen could assemble a number of White House personnel in his office.(936) When Mr. Gergen called back, he was on a speakerphone with a number of White House officials, "eight or nine or ten people".(937) Mr. Gergen does not have a clear memory of the conversation, but he testified that Mr. Heymann "may have conveyed to me a sense of, not a precise x, y, z, here's what you guys are doing, but a sense of watch it, you know, an alert. Make sure the White House was doing this, to remind me in effect, these are very highly charged kinds of investigations and they can be misunderstood very easily."(938)
Mr. Heymann's recollection is clearer:
I read them the riot act in unmistakable terms, telling them that this was a disaster very near to occur, that I was sending, I had sent the FBI in to interview on the note. That I wanted all interviews to take place without White House counsel there. That I wanted full cooperation. That there was a very good chance that nothing could avoid sort of a major failure of credibility and sense of biased investigation, but that only the most vigorous of steps, at this point, could do that, and I wanted a complete turnaround.(939) According to Mr. Heymann, he deliberately delivered a "very strong message" seeking to change the White House attitude toward the investigation.(940) He received some, but not much, argument from the White House officials involved in the conference call. After the conversation, according to Mr. Heymann, "the cooperation with the Park Police and with the FBI turned around immediately and completely."(941)