The Special Committee's Whitewater Report

FINDINGS OF THE SPECIAL COMMITTEE

In the course of its investigation, the Special Committee was confronted with witnesses who provided conflicting testimony about events highly relevant to the Special Committee's inquiry. To resolve these conflicts in testimony, Senate Resolution 120 authorized the Special Committee to make factual findings based on the available evidence. In doing so, the Special Committee placed primary emphasis on documentary or other physical evidence whenever such evidence was available and when there was no indication that such evidence had been altered or otherwise compromised. When judgments of credibility had to be made, the Special Committee focused on the factors that, from common sense and logic, contribute to the reliability of a person's testimony--factors such as a motive to lie or embellish, the detail and vividness of memory, and the internal and external consistency of a person's overall testimony. The Special Committee summarizes its factual findings below.

Finding 1.

At the time of his death, Vincent Foster was intimately involved in two brewing scandals--Travelgate and Whitewater--touching on President and Mrs. Clinton.

Mr. Foster played a central role in both the firing of the Travel Office staff and subsequent attempts to conceal Mrs. Clinton's true role in the firings. Mr. Foster participated in the May 12, 1993 meeting with Harry Thomasson, Catherine Cornelius, and David Watkins where the replacement of the Travel Office staff was first discussed.(942) Mr. Foster then assigned his former law partner, William Kennedy, to investigate alleged financial mismanagement in the Travel Office. When the July 2, 1993 report of an internal White House review into the matter sharply reprimanded Mr. Kennedy, Mr. Foster felt personally responsible and insisted that Mr. Nussbaum allow him to shoulder the blame.(943)

Mr. Watkins' belatedly disclosed memorandum concerning the Travel Office affair clearly outlined Mr. Foster's extensive involvement as Mrs. Clinton's conduit to the firings. Mr. Kennedy wrote, for example, "Once this made it on the First Lady's agenda, Vince Foster became involved, and he and Harry Thomason regularly informed me of her attention to the Travel Office situation -- as well as her insistence that the situation be resolved immediately by replacing the Travel Office staff."(944) Indeed, Mr. Watkins fingered Mr. Foster as the person who directly communicated to him Mrs. Clinton's order that the Travel Office staff be fired. "Foster regularly informed me that the First Lady was concerned and desired action -- the action desired was the firing of the Travel Office staff."(945) Despite Mrs. Clinton's obvious and extensive involvement in the firing of the staff, Mr. Foster and other White House officials did not disclose to investigators probing the affair about her true role.

It is also undisputed that Mr. Foster played a central role in the effort to respond to and manage the brewing Whitewater scandal. When questions first arose in the 1992 campaign about Whitewater and Mrs. Clinton's representation of Mr. McDougal's Madison Guaranty, Mr. Foster compiled the files and billing records of the Rose Law Firm relating to that representation.(946) He and Mr. Hubbell improperly removed the files from the Rose Law Firm without authorization and transported them to Washington after the campaign. In order to "[g]et out of White Water,"(947) Mr. Foster also perfected the sale of the Clintons' interest in Whitewater to Mr. McDougal.(948)

After becoming Deputy White House Counsel, Mr. Foster continued his role as the Clintons' personal counsel on Whitewater. He was assigned the task of preparing the Clintons' tax returns for 1992 in order to reflect properly the sale of their shares in Whitewater,(949) a problem that his notes described as a "can of worms you shouldn't open."(950) Mr. Foster worked with other White House officials in the Spring of 1993 in coordinating a response to questions about Whitewater.(951) And Mr. Foster's telephone log indicated an inexplicable message from Mr. McDougal on June 16, 1993, "re tax returns of HRC, VWF and McDougal."(952)

Finding 2.

Senior White House officials were aware that the President and Mrs. Clinton faced potential liability over Whitewater and their relationship with the McDougals.

Before the Special Committee, Mr. Nussbaum boldly announced: "The Whitewater matter, which subsequently became the focus of so much attention, was not on our minds or even in our consciousness in July 1993."(953) The testimonial and evidentiary record belies Mr. Nussbaum's exculpatory declaration.

Questions about Whitewater and Mrs. Clinton's representation of Madison were a major campaign issue in 1992, so much so that the Clintons took the extraordinary step of retaining Jame Lyons, an "outside attorney," to issue a report on the matter. Mr. Foster and Mr. Hubbell at that time compiled the files and billing records of the Rose Law Firm relating to Mrs. Clinton's representation of Madison,(954) and transported the files to Washington after the campaign. And Mr. Foster was specifically tasked to prepare the Clintons' personal tax returns as they relate to Whitewater,(955) a project which consumed his time in the White House.

More important, as early as 1992, the Clintons and their advisors were aware that questions about Whitewater would again resurface, this time in a criminal investigation. In the fall of 1992, Betsey Wright heard of a "criminal referral regarding a savings and loan official in Arkansas and . . . involv[ing] the Clintons."(956) Ms. Wright learned specifically that the RTC had just sent a "criminal referral up to the prosecutor in Little Rock."(957) She passed this news onto Mrs. Clinton.(958)

According to RTC Senior Vice President William H. Roelle, former Deputy Secretary of the Treasury Roger Altman, upon taking office, directed the staff to inform him of all important or potentially high-visibility issues.(959) Mr. Roelle testified that, 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.(960) 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."(961) 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.(962)

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.(963) Shortly thereafter, Mr. Bowles told Mr. Foren that he had briefed White House Chief of Staff Mack McLarty about the case.(964) Although Mr. Bowles did not recall being briefed by Mr. Foren about Capital Management(965) or talking to Mr. McLarty about the case,(966) Mr. Foren's account was corroborated by his deputy, Charles Shepperson.(967) Mr. McLarty's calendar indicated that Mr. Bowles had two meetings with Mr. McLarty at the White House in early May 1993.(968)

Mr. Foster's role in response to Whitewater was known in the White House. Ricki Seidman, former Deputy Director of Communications in the White House, reported to the FBI that she and Mr. Foster had worked together on Whitewater issues before his death. Specifically, she recalled that she worked with Mr. Foster in April 1993 in connection with the Clintons' tax returns.(969) Seidman participated in the discussions from a "communications perspective,"(970) thus indicating the White House's identification of Whitewater as a potential issue in the spring of 1993. Indeed, according to the FBI report of Ms. Seidman's interview, "it was believed the tax returns would bring the Whitewater issue into the `public domain again.'"(971) And Ms. Seidman stated that there was discussion in the White House regarding "the `soundest way' to seek closure to the issue."(972)

Given this overwhelming evidence, the Special Committee finds that White House officials knew about Mr. Foster's work for the Clintons on Whitewater, and that, at the time of his death, the Clinton White House was acutely aware that Whitewater was a potential political and criminal matter.

Finding 3.

Senior White House officials ignored repeated requests by law enforcement officials to seal Mr. Foster's office on the night of his death.

Nine different persons recalled four separate requests to White House officials to seal Vincent Foster's office on the evening of July 20. Park Police investigator Sergeant Cheryl Braun testified that, as she left the Foster residence, she asked Assistant to the President David Watkins to seal Mr. Foster's office.(973) Detective John Rolla expressly corroborated her testimony.(974) Park Police Major Robert Hines testified that he called and asked another senior White House official, Bill Burton, to seal Mr. Foster's office.(975) Another White House official, Sylvia Mathews, testified that she overheard Mr. Burton's conversation with the Park Police(976) and that right after the telephone call, Mr. Burton asked Counsel to the President Bernard Nussbaum to seal the office.(977)

Counselor to the President David Gergen testified that he asked Director of Communications Mark Gearan whether Mr. Foster's office was sealed.(978) Mr. Gearan then asked Mr. Burton, who assured Mr. Gearan that the office had been sealed.(979) Associate Attorney General Webster Hubbell testified that both his wife and Marsha Scott remembered him calling Chief of Staff Mack McLarty on the night of Mr. Foster's death to ask that Mr. Foster's office be sealed.(980) All the persons who received these requests to seal Mr. Foster's office denied having been asked to do so.

Mr. Watkins was the critical person in the failure to seal Mr. Foster's office on the night of his death. He received a specific request from the Park Police to seal Mr. Foster's office. Instead of doing so, he directed his assistant, Patsy Thomasson, to search the office. Mr. Watkins was intimately involved, along with Mr. Foster, in firing the career Travel Office staff and in the apparent subsequent cover up before investigators. In a memorandum drafted in the Fall of 1993, Mr. Watkins described in detail Mr. Foster's and Mrs. Clinton's role in the Travelgate affair. He wrote that "Foster regularly informed me that the First Lady was concerned and desired action -- the action desired was the firing of the Travel Office staff."(981) The memorandum also revealed that, right before the firing of the Travel Office staff, White House Chief of Staff Mack McLarty met with Mr. Watkins and Ms. Thomasson and explained that the issue was on Mrs. Clinton's "radar screen" and that "immediate action must be taken."(982) At all times, however, the White House had maintained that Mrs. Clinton was not involved in the Travel Office matter; Mrs. Clinton and numerous other White House officials had made public statements that she had "no role" in the firing of the staff. Mr. Watkins' knowledge of Mrs. Clinton's true involvement in Travelgate, efforts by White House officials to conceal that involvement, and Mr. Foster's direct role in both the firing and the cover-up provides an obvious and powerful motive to violate the instructions of the Park Police to seal Mr. Foster's office. Instead, Mr. Watkins directed his trusted assistant, Patsy Thomasson, to search Mr. Foster's office.

The Special Committee finds that the overwhelming weight of the evidence established that senior White House officials received multiple requests to seal Mr. Foster's office on the night of his death. The testimony of Sylvia Mathews, a White House official with absolutely no motivation to mislead the Special Committee, was corroborated by notes that she prepared within one week of Mr. Foster's death.(983) And Bill Burton's undated notes listed Webster Hubbell's name and telephone numbers next to the reminder "1) Secure Office".(984) This testimonial and documentary evidence is uncontradicted; the White House officials have testified simply that they did not recall the requests to seal Mr. Foster's office.

It is undisputed that, contrary to the requests of law enforcement, Mr. Foster's office was not sealed the night of his death.

Finding 4.

White House officials conducted an improper search of Mr. Foster's office on the night of his death.

The Special Committee received testimony that David Watkins and Bernard Nussbaum both received requests to seal Mr. Foster's office. Instead of taking steps to seal Mr. Foster's office, however, Mr. Watkins paged Patsy Thomasson and instructed her to go to into Mr. Foster's office to search for a note.(985) Ms. Thomasson was aware of Mr. Foster's role in the Travel Office matter.(986) Mr. Nussbaum then joined Ms. Thomasson in that search.(987) It is unclear what motivated, or whether anyone instructed, Margaret Williams to go into Mr. Foster's office, but the Special Committee finds improbable Ms. Williams' testimony that she went to Mr. Foster's office in the hope 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."(988)

Following are the sequence of telephone calls established by records obtained by the Special Committee:

Late night phone calls, July 20th - 21st

TIME
FROM
TO
LENGTH


10:13 p.m. EDT
Rodham Residence
Margaret Williams
16 min.


11:19 p.m. EDT
Rodham Residence
Susan Thomases
20 min.


12:15 a.m. EDT
Susan Thomases
Margaret Williams
pager


12:56 a.m. EDT
Margaret Williams
Rodham Residence
11 min.


1:10 a.m. EDT
Margaret Williams
Susan Thomases
14 min.


Ms. Williams testified that she did not even mention to Mrs. Clinton the search of Mr. Foster's office in her telephone call at 12:56 a.m. on July 21 -- for example, that no note was found possibly explaining Mr. Foster's decision to take his own life.(989) They had already spoken earlier in the night about the fact of Mr. Foster's death.

Ms. Williams did not recall talking to Ms. Thomases on the evening of Mr. Foster's death.(990) Of her conversation with Ms. Williams that night, 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."(991)

In the end, the documentary evidence showing the sequence of phone calls in the early hours of July 21, after Ms. Williams had entered Mr. Foster's office, reasonably leads to the conclusion that Ms. Williams called Ms. Thomases and Mrs. Clinton to report the results of the search of Mr. Foster's office.

Finding 5.

Margaret Williams may have removed files from the White House Counsel suite on the night of his death.

Secret Service Officer Henry O'Neill testified that, on the night of Mr. Foster's death, he specifically saw Margaret Williams remove file folders, three to five inches thick, from the White House Counsel suite and placed them in her office.(992) As Ms. Williams walked past Officer O'Neill to her office, her assistant, Evelyn Lieberman, said to Officer O'Neill: "'that's Maggie Williams; she's the First Lady's chief of staff.'"(993) Ms. Williams denied removing any files and her attorney submitted the results of polygraph tests indicating that she was truthful in her denial.(994)

The Special Committee finds the testimony of Officer O'Neill to be credible. Officer O'Neill, a career officer with the Secret Service Uniformed Division, has no motive to lie. He has a clear recollection of the critical events on the evening of Mr. Foster's death, and he is certain that he saw Ms. Williams remove the documents. He was situated in an excellent position in the narrow hall between the White House Counsel suite and Ms. Williams' office, and his memory is punctuated by Evelyn Lieberman's introduction of Ms. Williams.

Although the results of Ms. Williams' polygraph examinations should be given some weight, there are reasons to question the probative value of those examinations. First, polygraph tests are generally unreliable--a recognition that in part led to the adoption of the Polygraph Protection Act of 1987.29 Second, Ms. Williams was given three and probably four examinations by her private polygrapher before submitting to a test by the Independent Counsel.(995) A person may increase her chances of being found "truthful" by taking multiple polygraph examinations. Subjects are approximately 25 percent more likely to pass polygraph examinations with two practice exams, according to one study.30

Finding 6.

Bernard Nussbaum agreed with Justice Department officials on July 21, 1993, to allow law enforcement officials to review documents in Mr. Foster's office.

Philip Heymann testified that he and Mr. Nussbaum agreed on July 21, 1993, as to the procedures for reviewing the documents in Mr. Foster's office.(996) David Margolis and Roger Adams, whom Mr. Heymann sent to the White House to conduct the review as agreed, corroborated Mr. Heymann's recollection.(997) Mr. Nussbaum does not recall discussing procedures for reviewing Mr. Foster's office with Mr. Heymann on July 21. Mr. Margolis and Mr. Adams testified that, in Mr. Nussbaum's office that evening, they finalized the agreement between Mr. Heymann and Mr. Nussbaum.(998) Mr. Nussbaum and his associates in the White House counsel's office denied reaching any agreement.(999)

The Special Committee finds that the evidence overwhelmingly demonstrates that Mr. Nussbaum agreed with the Justice Department on July 21 with respect to the procedures for reviewing the documents in Mr. Foster's office. Mr. Heymann's specific and detailed recollection of his afternoon conversation with Mr. Nussbaum stands in stark contrast to Mr. Nussbaum's very hazy recollection that Mr. Heymann may "get other people involved" in the investigation. Mr. Margolis and Mr. Adams finalized Mr. Heymann's agreement when they met with Mr. Nussbaum, Mr. Sloan and Mr. Neuwirth later in the afternoon.(1000) The testimony of Mr. Margolis and Mr. Adams is corroborated by notes made by Mr. Adams within one week of the meeting and by Cynthia Monaco's dictated diaries(1001) and a contemporaneous FBI teletype describing the meeting.(1002)

There is independent evidence confirming that Mr. Nussbaum agreed with the Justice Department on the procedures for reviewing documents in Mr. Foster's office. Mr. Margolis and Mr. Adams testified that, during the later afternoon meeting, Mr. Nussbaum overruled and corrected Mr. Neuwirth when Mr. Neuwirth stated that Mr. Nussbaum alone would review the documents in Mr. Foster's office.(1003) The Special Committee finds simply not credible the testimony of Mr. Nussbaum, Mr. Neuwirth, and Mr. Sloan that they do not recall any such incident, given their vivid and specific denial of any such agreement with the Justice Department.

Finding 7.

Margaret Williams and Susan Thomases, in consultation with Mrs. Clinton, took part in formulating the procedure for reviewing documents in Mr. Foster's office on July 22, 1993.

Mr. Nussbaum agreed with Justice Department officials on July 21, 1993, to an "entirely sensible plan"(1004) to review jointly documents in Mr. Foster's office. The next day, however, he broke the agreement, reviewed the documents himself, and permitted Margaret Williams, Mrs. Clinton's Chief of Staff, to participate in a second review and to remove documents from Mr. Foster's office. Given this sequence of events, which fundamentally changed the manner in which documents in Mr. Foster's office were handled, the obvious question that the Special Committee faced was, why?

Records obtained by the Special Committee(1005) showed the following sequence of telephone calls in the early hours of July 22:

Early morning phone calls, July 22nd

TIME
FROM
TO
LENGTH

7:44 a.m. EDT
Margaret Williams
Rodham Residence
7 min.

6:57 a.m. CDT
(7:57 a.m. EDT)
Rodham Residence
Susan Thomases
3 min.

8:01 a.m. EDT
Susan Thomases
Bernard Nussbaum
pager

Mr. Nussbaum testified that, when he answered Ms. Thomases' page, Ms. Thomases asked him about the upcoming review of Mr. Foster's office and said that unspecified "people are concerned" about Mr. Nussbaum's plan to allow law enforcement officials to participate in the review.(1006)

Later in the day, according to Associate Counsel to the President Stephen Neuwirth, Mr. Nussbaum told Mr. Neuwirth that Mrs. Clinton and Ms. Thomases were concerned about the law enforcement authorities having "unfettered access" to Mr. Foster's office.(1007)

Ms. Thomases acknowledged that she talked with Mr. Nussbaum about the review, but only at his instigation, and she denied expressing any concern or reservation about the review procedures.(1008) She testified that she had no conversations with Mrs. Clinton about the review of documents in Mr. Foster's office.(1009)

Ms. Williams did not recall having any conversations about the document review.

The Special Committee finds that there is substantial, indeed compelling, evidence indicating that Ms. Williams and Ms. Thomases, in consultation with Mrs. Clinton, participated in formulating the procedure for reviewing documents in Mr. Foster's office on July 22, 1993. Although Ms. Williams and Ms. Thomases both denied speaking with Mrs. Clinton about the review of documents, the sequence of contiguous telephone calls from Ms. Williams to Mrs. Clinton, from Mrs. Clinton to Ms. Thomases, and from Ms. Thomases to Mr. Nussbaum leads to the unmistakable conclusion that these early morning phone calls precipitated Mr. Nussbaum's change of procedure.

The testimony of White House lawyers directly support this

Finding. According to Mr. Neuwirth's important testimony, Mr. Nussbaum understood, from a prior conversation with Ms. Thomases, that Mrs. Clinton and Ms. Thomases were concerned about the prospect of unfettered access to Mr. Foster's papers. Although Ms. Thomases denied that she intervened in the formulation of the search procedure, Mr. Nussbaum testified that Ms. Thomases attempted to impose her views on how to conduct the review, an attempt that he claimed to have rebuffed.

By breaking his agreement with law enforcement over the terms of the search of Mr. Foster's office, Mr. Nussbaum demonstrated that he clearly took the concerns of Mrs. Clinton and Ms. Thomases into account. Mrs. Clinton, however, persists in her story that she had no involvement in the handling of documents in Mr. Foster's office. In public statements, she maintained that "[t]here were no documents taken out of Vince Foster's office on the night he died. And I did not direct anyone to interfere in any investigation."(1010) Although this statement may be technically correct, that Mrs. Clinton did not "direct" anyone to "interfere" with investigations, the evidence established that she communicated concerns about the handling of documents in Mr. Foster's office. Those concerns were passed on, in Mrs. Clinton's name and by someone known to have her authority, to White House officials.(1011) Here, as in Travelgate, that is enough. The invocation of Mrs. Clinton's interest in the matter commands a "clear" message: "immediate action must be taken."(1012) And the action taken, denying investigators access to documents in Mr. Foster's office, had the effect of interfering with the investigation. The Special Committee and the American people deserves candor, not lawyerly word games.

The documentary evidence establishes that Ms. Thomases and Ms. Williams remained directly involved in the process of reviewing the documents. Tellingly, throughout July 22, Ms. Thomases made repeated phone calls to the offices of Mack McLarty and Ms. Williams.31 Records produced to the Special Committee showed the following calls by Ms. Thomases to the White House on July 22, 1993:

Thomases calls to the White House, July 22nd

TIME
FROM
TO
LENGTH

8:01 a.m.
Susan Thomases
Bernard Nussbaum
pager

9:00 a.m.
Susan Thomases
Margaret Williams
message

10:48 a.m.
Susan Thomases
Mack McLarty
3 min.

11:04 a.m.
Susan Thomases
Margaret Williams
6 min.

11:11 a.m.
Susan Thomases
Mack McLarty
3 min.

11:16 a.m.
Susan Thomases
Mack McLarty
1 min.

11:37 a.m.
Susan Thomases
Margaret Williams
9 min.

11:50 a.m.
Susan Thomases
Margaret Williams
4 min.

5:13 p.m.
Susan Thomases
Margaret Williams
9 min.

5:23 p.m.
Susan Thomases
Bruce Lindsey
3 min.

Ms. Thomases thus remained in close touch with the White House while Mr. Nussbaum finalized the search procedures and announced to the law enforcement officials, at about 1:00 p.m., the decision that he alone would review the documents in the Mr. Foster's office.

Contrary to certain public statements by the White House, Ms. Williams clearly was involved in the actual review and removal of documents from Mr. Foster's office on July 22.32 After Mr. Nussbaum reviewed the documents in Mr. Foster's office in front of law enforcement, he and Margaret Williams conducted a second review -- the real review. Ms. Williams then removed the Clintons' personal documents from Mr. Foster's office and transferred them to the residence, telling Thomas Castleton that "the President or the First Lady had to review the contents of the boxes to determine what was in them."(1013) Ms. Williams called Mrs. Clinton before putting the files in the residence, and, at 5:13 p.m., apparently after Ms. Williams had completed the transfer of files, Ms. Thomases called Ms. Williams' office and talked for nine minutes. At 7:12 p.m., Ms. Thomases put in a final call, one-minute call to Mrs. Clinton at the Rodham residence.(1014)

The sequence of documented telephone calls and their correlation to activities surrounding the review and removal of documents from Mr. Foster's office on July 22 leads to the inescapable conclusion that Ms. Thomases and Ms. Williams, in consultation with, or acting at the direction of, Mrs. Clinton, prevailed upon Mr. Nussbaum to abandon his procedure for reviewing documents in Mr. Foster's office and to replace it with one that prevented law enforcement officials from having access to Mr. Foster's papers and that permitted Ms. Williams to review and remove documents from Mr. Foster's office.

Finding 8.

Bernard Nussbaum failed to conduct a meaningful review of Mr. Foster's office and did not describe to law enforcement officials sensitive files pertaining to the Clintons and the Administration.

Mr. Nussbaum testified that he conducted a comprehensive review and described each file in Mr. Foster's office--including all the files in Mr. Foster's credenza, where a number of the Clintons' personal files were kept. Notes taken by Mr. Spafford of the review demonstrate, however, that he provided only a very generic description, "matters re First Family"(1015); Mr. Sloan's notes are similar: "Various investment matters re: First Family."(1016) This single general description by Mr. Nussbaum identified a number of files that Margaret Williams later transferred to the White House residence and eventually to the Clinton's personal lawyers at Williams & Connolly. Among these files was Mr. Foster's Whitewater file; no one at the review recalled Mr. Nussbaum making any reference whatsoever to Whitewater.

Although Mr. Nussbaum testified that Whitewater was not the subject of discussion in the White House at the time of Mr. Foster's death, the Special Committee finds that there was ample evidence indicating that in early 1993, the White House, and particularly Mrs. Clinton, knew that Whitewater was a potential public issue. Whitewater had been an issue during the 1992 presidential campaign. In late 1992, Betsey Wright, the coordinator of the Arkansas defense effort and former chief of staff to Governor Clinton, learned of a "criminal referral regarding a savings and loan official in Arkansas and ... involv[ing] the Clintons."(1017) Upon hearing the news, she attempted to gather more information and directly told Mrs. Clinton about the referral.(1018) And the information was circulated within the campaign. Jim Lyons, author of the Whitewater report, testified that someone in the Clinton campaign notified him of the criminal referral.

Whitewater remained a live issue when the Clintons moved into the White House. Ricki Seidman, then Deputy Director of Communications for the White House, told the FBI that she discussed and attended meetings with Mr. Foster and the Clintons' outside counsel in April 1993 about the tax treatment of the Clinton's Whitewater investment because "it was believed the tax returns would bring the Whitewater issue into the `public domain' again."(1019) In addition, records that the White House produced to the Special Committee after the conclusion of its public hearings indicate that James McDougal, the Clintons' Whitewater partner, called Mr. Foster at the White House just prior to his death.

The Special Committee also finds that Mr. Nussbaum failed to describe adequately the contents of Mr. Foster's briefcase. 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 that most of the contents of the briefcase pertained to the Travelgate controversy.(1020) Specifically, Mr. Nussbaum removed Mr. Foster's notebook on the Travel Office matter from the briefcase and kept it in his office until Mr. Nussbaum's resignation in March 1994.(1021) 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".(1022) The notebook and other Travel Office documents in Mr. Foster's briefcase were not turned over to the Independent Counsel until April 5, 1995.(1023)

Finding 9.

An index of documents in Mr. Foster's office is missing and other indices were revised following his death to conceal possible references to Whitewater.

Mr. Foster's secretary, Deborah Gorham, testified that, on July 22, she entered Mr. Foster's office and 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."(1024) Ms. Gorham maintained an index for every drawer; this one was missing.

The Special Committee received three indices from the White House reflecting all the files in Mr. Foster's office. Two are dated July 22, 1993.(1025) One is shown to be last revised on October 25, 1993.(1026) It is thus undisputed that the indices were compiled or revised after Mr. Foster's death. None makes any reference to a Whitewater file known to be in Mr. Foster's office at the time of his death.

The evidence before the Special Committee indicates that the indices were revised in order to remove an earlier reference to the Whitewater file. Deborah Gorham testified that she made an index in the Spring of 1993, probably late April, and that the index reflected all the files in Mr. Foster's office at the time.(1027) She also testified that the Whitewater file was among the files in Mr. Foster's office at the time she prepared the index.(1028)

The Special Committee finds Ms. Gorham's testimony highly credible. Ms. Gorham was careful and meticulous, identifying with certainty to the Special Committee particular characteristics of indices she maintained. Moreover, independent evidence corroborates Ms. Gorham's recollection that Whitewater was among the files in Mr. Foster's office in April 1993. Mr. Foster prepared the Clintons' 1992 tax returns, and one of the key issues in those returns was how to treat the Clintons' investment in Whitewater. It is therefore highly likely that the Whitewater file was in Mr. Foster's office in April 1993, when the tax returns were due, instead of being brought into the office at a later date.

Finding 10.

Bernard Nussbaum knew about yellow scraps of paper in Mr. Foster's briefcase prior to Stephen Neuwirth's apparent discovery on July 26, 1993.

The Special Committee finds that the evidence demonstrates that Mr. Nussbaum knew about yellow scraps of paper in Mr. Foster's briefcase before Mr. Neuwirth allegedly discovered the scraps on July 26. Mr. Spafford testified that he overheard Mr. Sloan tell Mr. Nussbaum on July 22 that there were scraps at the bottom of the briefcase.(1029) Although neither Mr. Sloan nor Mr. Nussbaum recalled the exchange, Mr. Spafford testified that he remembered and had a privileged conversation about the incident the following week, right after he learned that Mr. Neuwirth had discovered the note in Mr. Foster's briefcase.(1030)

In addition, Deborah Gorham testified that in the days after Mr. Foster's death, she told Mr. Nussbaum that she saw a file folder and something yellow, possibly "Post-it" notes in Mr. Foster's briefcase.(1031) Ms. Gorham further testified that after Mr. Neuwirth discovered the note, Mr. Nussbaum grilled her at length about what she saw in Mr. Foster's briefcase the previous week.(1032) Although Mr. Nussbaum testified that he did not recall grilling Ms. Gorham,(1033) the Special Committee finds her vivid recollection of Mr. Nussbaum's interrogation to be highly credible. Mr. Nussbaum's interrogation, described by Ms. Gorham as "forceful" and "adamant",(1034) leads to the obvious inference that he was concerned about what Ms. Gorham had seen the previous week and how it would undercut his story about the discovery of the note.

The Special Committee finds that Mr. Nussbaum must have known on July 22 that scraps of paper were in Mr. Foster's briefcase. The briefcase has no flaps or inside seams that could conceal 27 pieces of yellow paper. Captain Charles Hume remarked that the "oldest and blindest" Park Police officer would have found the note on July 22,(1035) and Sergeant Peter Markland testified that he thought Mr. Nussbaum lied when he said the note was discovered in the briefcase.(1036) Even White House official, Bill Burton, testified that he was incredulous when he learned that Mr. Neuwirth discovered the note in Mr. Foster's briefcase.(1037)

David Margolis, the career Justice Department official coordinating the investigation, offered this testimony:

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.(1038) 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.

Mr. Nussbaum's conduct may be explained by the fact that law enforcement officials and Mr. Spafford were still at the White House when the existence of the scraps of paper was called to his attention by Mr. Sloan. Rather than examining the scraps then and there, Mr. Nussbaum chose to put off such an examination until such time as he could be sure that he could do so in private.

Finding 11.

Margaret Williams, in consultation with Mrs. Clinton, removed files from Mr. Foster's office to the White House residence to be reviewed by the Clintons.

Thomas Castleton testified that, as he helped Margaret Williams transport the Clintons' personal files to the White House residence on July 22, Ms. Williams told Mr. Castleton that she was taking the files to the residence so that the Clintons could review them.(1039) Mr. Nussbaum testified that he discussed taking the files to the residence with Ms. Williams so that the Clintons could decide which lawyer to send them to.(1040) Ms. Williams, however, testified that she alone made the independent determination to place the files in the residence.(1041) Although Ms. Williams admitted calling Mrs. Clinton, Ms. Williams claimed that their discussion was limited simply to where to place the files in the residence.(1042)

The Special Committee finds that the evidence overwhelmingly demonstrates that Ms. Williams did not, as she asserted, make an independent decision to transfer the Clintons' personal files to the White House residence.

Ms. Williams' story is not credible given Mr. Nussbaum's testimony that they had discussed taking the files to the residence before Ms. Williams left Mr. Foster's office. Carolyn Huber testified that July 22 was the first time ever that Ms. Williams had placed files in the White House Residence.(1043) Ms. Williams did not plausibly explain why she thought the residence--and not her office or somewhere else in the West Wing--was the appropriate place for the files or how personally transferring files to the residence was less taxing than having them picked up by a Williams & Connolly representative.

Ms. Williams testified that, despite having never discussed the files with Ms. Williams, Mrs. Clinton did not ask any questions--even one--but simply told her to arrange the details with Ms. Huber. Ms. Williams explained this seemingly odd response by suggesting 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"(1044)--a suggestion that the Special Committee finds to border on the contemptuous. Moreover, Ms. Huber testified that 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."(1045)

The Special Committee finds that Ms. Williams intended the files to be reviewed by the Clintons and that, in fact, someone reviewed the files before they were turned over to Williams & Connolly. When confronted with Mr. Castleton's testimony that she said the Clintons were to review the files, Ms. Williams asked rhetorically, "Why would I tell an intern that?"(1046) The Special Committee finds it natural that Ms. Williams would have told Mr. Castleton why the files were going to the residence--especially because, as Ms. Huber testified, Ms. Williams had never moved files to the residence. Mr. Nussbaum testified that Ms. Williams returned a file, one dealing with White House decorations, before the Clinton personal files were transferred to Williams & Connolly. Although, after consulting with counsel, Mr. Nussbaum stated that he was not sure that it was Ms. Williams who returned the file, he acknowledged that a file was indeed returned from the residence because it was not a Clinton personal file.(1047) The inevitable conclusion from this testimony is that someone reviewed the files to determine which files should be returned to Mr. Nussbaum.

Finding 12.

Senior White House officials did not provide complete and accurate information to the Park Police and FBI with respect to the handling of Mr. Foster's note.

It is undisputed that Mrs. Clinton saw the note within hours of its discovery on July 26.(1048) In addition, Susan Thomases testified that Mr. Nussbaum called and told her about the note the same afternoon.(1049) Neither Mrs. Clinton nor Ms. Thomases were identified in the reports by the FBI or Park Police as among those who saw or knew about the note before it was turned over to the authorities.(1050) Although Mr. Neuwirth testified that he told FBI Special Agent Salter that Mrs. Clinton was made aware of the note, his testimony is inconsistent with written records of the interview. Neither Agent Salter's report nor his handwritten notes of the interview (later obtained by the Committee) indicated that Mr. Neuwirth told him that Mrs. Clinton was among those who saw the note.(1051) Instead, Agent Salter's notes recorded Mr. Neuwirth's continuous narrative of the chain of events after Mr. Neuwirth discovered the note. The narrative, however, omitted any mention of Mrs. Clinton as the second person Mr. Nussbaum brought into his office to view the note.(1052)

The Special Committee finds that Mr. Neuwirth's omission of Mrs. Clinton may have been willful. Bill Burton's handwritten record of a meeting about Mr. Foster's note on July 28, the day after the note was turned over to the authorities, listed "HRC" with an arrow pointing to an adjacent letter "n".(1053) Because Mr. Burton testified that he did not know what his own notes meant, the Special Committee adopts the most reasonable interpretation of his notations--that those present at the meeting discussed the matter and decided not to disclose that Mrs. Clinton saw the note.

Finding 13.

Mr. Hubbell probably knew about the discovery of Mr. Foster's note on July 27, 1993.

In the hours and days following Mr. Foster's death, there was overwhelming interest in whether Mr. Foster left a note explaining the reasons for his apparent suicide. By their own admission, Mr. Nussbaum, Ms. Thomasson, Ms. Williams, and Ms. Lieberman, testified that they conducted an improper search of Mr. Foster's office on the night of his death in order to look for a note. Because of the seeming inexplicable nature of Mr. Foster's death and the speculations of foul play, there was a groundswell of interest in whether Mr. Foster had left a note prior to his death. The White House released an official statement stating that "no suicide note or other document bearing on" Mr. Foster's death had been found.(1054) And news articles in the week following Mr. Foster's death generally mentioned the anomaly that a note had not been found.(1055)

On July 27, approximately 26 hours after a note in Mr. Foster's hand was discovered by White House officials, White House Counsel Bernard Nussbaum finally contacted Attorney General Reno and Deputy Attorney General Heymann to turn over the note. Apparently unbeknownst to Ms. Reno and Mr. Heymann, Associate Attorney General Webster Hubbell was upstairs in the White House Residence with Mrs. Clinton and Ms. Thomases while they were downstairs receiving news of 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.(1056) White House logs indicate that Mr. Hubbell arrived at the Residence at 6:29 p.m. and remained there until 8:19 p.m.(1057) Ms. Thomases, who was in the Residence at the same time as Mrs. Clinton and Mr. Hubbell, exited the White House at the same time.(1058) 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."(1059)

When presented with the entry and exit logs, Ms. Thomases acknowledged that she met with Mr. Hubbell and Mrs. Clinton in the Residence following Mr. Foster's death.(1060) Secret Service records indicate that July 27 was the only time in the week following Mr. Foster's death that Mrs. Clinton, Ms. Thomases, and Mr. Hubbell were together in the White House. Ms. Thomases implausibly testified, however, that during there meeting the three only reminisced about Mr. Foster and their friendship.(1061)

For his part, Mr. Hubbell testified that he did not recall even seeing Ms. Thomases on July 27.(1062) He testified that he came to the White House on July 27 in order 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."(1063) 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."(1064)

Mr. Hubbell testified that he learned about the note when he "read it in the newspaper,"(1065) and that he did not discuss the note with Mrs. Clinton during his post-funeral visit to the White House.(1066) The Special Committee finds Mr. Hubbell's testimony incredible. Whether there was a note was the topic of interest, inquiry, and speculation for all involved in the story of Mr. Foster's death. White House officials conducted an improper search of Mr. Foster's office on the night of his death specifically, according to their own testimony, to look for a note. The Park Police had specifically asked about the existence of a note on the night of his death, and continued to look for indications of why Mr. Foster took his life during its investigation. Mr. Hubbell's high-ranking colleagues at the Justice Department were at the White House at the same time as Mr. Hubbell to receive the note from Mr. Nussbaum. Mrs. Clinton had called Ms. Thomases repeatedly to summon her to Washington for a meeting on July 27, and Mrs. Clinton had called Mr. Hubbell on the afternoon of July 27. Given all these events, there is little possibility that three of the persons closest to Mr. Foster--Mrs. Clinton, Ms. Thomases, and Mr. Hubbell--two of whom knew about the existence of the note, were in the private quarters of the White House together without for two hours without any mention of the note.

The Special Committee adopts the most reasonable

Finding in light of the circumstances, that Mr. Hubbell most likely learned of the existence of the note either before or during his meeting with Mrs. Clinton and Ms. Thomases on July 27, 1993.

Finding 14.

Margaret Williams provided inaccurate and incomplete testimony to the Special Committee in order to conceal Mrs. Clinton's role in the handling of documents in Mr. Foster's office following his death.

The testimony of Margaret Williams, the First Lady's Chief of Staff, to the Special Committee was frequently inconsistent with her prior statements and contradicted by the testimony of other witnesses. These numerous and varied contradictions in Ms. Williams's testimony followed one predictable pattern: they diminished Ms. Williams' role in the events surrounding the handling of the documents in Mr. Foster's office and, more important, concealed Mrs. Clinton's involvement in this now controversial matter. Although Ms. Williams's testimony may not necessarily be untruthful with respect to each and every contradiction, the obvious pattern of the contradictions and inconsistencies leads inexorably to the conclusion that she did not provide complete and accurate testimony to the Special Committee.

Ms. Williams testified implausibly that she entered Mr. Foster's office on the night of his death in the vain hope of Finding Mr. Foster there.(1067) She claimed that she did not remove any files from the White House Counsel's suite and that her assistant, Evelyn Lieberman, did not even enter the suite on July 20. Officer Henry O'Neill testified, however, that he saw Ms. Williams remove files, three to five inches thick, from the suite and place them in her office.(1068) According to Officer O'Neill, Ms. Lieberman was there and introduced Ms. Williams to Officer O'Neill.(1069)

After searching Mr. Foster's office, Ms. Williams went home and called Mrs. Clinton and Ms. Thomases. When asked about these late-night telephone calls, Ms. Williams testified to the Special Committee that she did not talk to Mrs. Clinton about the search of Mr. Foster's office. Ms. Williams also denied talking with Susan Thomases.(1070) After being confronted with records indicating that she called Ms. Thomases at 1:10 a.m. on July 21, Ms. Williams insisted that her earlier testimony was only that she did not recall talking to Ms. Thomases.(1071) When reminded that she actually said, "I didn't talk to her,"(1072) Ms. Williams replied, "I'm not going to argue with you. I think this is exactly what I said."(1073)

With respect to Mrs. Clinton's involvement in the much criticized decision to keep law enforcement from reviewing documents in Mr. Foster's office on July 22, Ms. Williams did not tell the Special Committee initially about her early morning phone call to the Rodham residence.(1074) When presented with records documenting the telephone call made at 7:44 EDT, Ms. Williams replied, "I don't remember who I talked to."(1075)

Ms. Williams initially testified that she did not speak to Susan Thomases on the telephone on July 22.(1076) Telephone records indicated, however, that Susan Thomases called Ms. Williams' office twice on July 21 and five times on July 22.(1077) Ms. Thomases made these repeated telephone calls to Ms. Williams' office on July 22 at the same time that White House officials were meeting to discuss the procedures for searching Mr. Foster's office.(1078) When questioned about these calls, Ms. Williams suggested that she was at home in the morning of July 22.(1079) Records from the U.S. Secret Service established, however, that Ms. Williams entered the White House at 8:10 a.m. on July 22.(1080)

Ms. Williams testified that she did not review files in Mr. Foster's office on the afternoon of July 22, but Mr. Nussbaum testified that Ms. Williams helped him pick out the Clintons' personal files.(1081) Deborah Gorham also testified that Ms. Williams was in Mr. Foster's office when Mr. Nussbaum asked Ms. Gorham to point out the location of the Clintons' personal files.(1082) Ms. Williams claimed that she made a completely independent decision to have the Clintons' personal files transferred to the White House residence en route to Williams & Connolly.(1083) Mr. Nussbaum testified, however, that he and Ms. Williams discussed the matter and decided to remove the files to the residence, and then the Clintons would decide where the files should go.(1084) While she was in Mr. Foster's office, Ms. Williams called Mrs. Clinton. Although the two had not talked previously about any transfer of files, Ms. Williams testified that she, improbably, asked Mrs. Clinton simply where the files should go in the residence, and had no other discussions with Mrs. Clinton about what the files contained or where they came from.(1085)

Ms. Williams asserted that she did not intend for the Clintons to review the files after they were placed in the residence. Thomas Castleton testified, however, that Ms. Williams expressly told him that she was taking the files to the residence so the Clintons could review them.(1086) Ms. Williams denies saying this to Mr. Castleton.(1087) Carolyn Huber testified that, after Ms. Williams placed the files in the residence closet, Ms. Huber returned the key to its usual place, in a marked envelope in the desk drawer.(1088) Ms. Williams, however, testified that Ms. Huber gave her the key, which Ms. Williams kept on her key chain until she had to open the closet for a Williams & Connolly representative.(1089) Ms. Williams testified that no one reviewed the files while they were in the residence, but Mr. Nussbaum testified that someone, probably Ms. Williams, returned a residence file because it was determined not to be a Clinton personal file.(1090)

Finding 15.

Susan Thomases provided inaccurate and incomplete testimony to the Special Committee in order to conceal Mrs. Clinton's role in the handling of documents in Mr. Foster's office following his death.

Susan Thomases, a prominent New York attorney, was Mrs. Clinton's conduit to the White House staff. She was in close contact with Mrs. Clinton and the White House staff throughout the week following Mr. Foster's death. Although the documentary and other evidence before the Special Committee established that Ms. Thomases was involved in every key event relating to the handling of documents in Mr. Foster's office following his death, her testimony to the Special Committee with respect to these key events was often implausible, incomplete or inaccurate.

When Ms. Thomases first appeared before the Special Committee, on August 8, 1995, she was asked whether she had discussed her appearance with Mrs. Clinton. Ms. Thomases testified, "I did not discuss my opinion--my appearance here today with Hillary Clinton."(1091) On December 18, 1995, however, Ms. Thomases contradicted herself by admitting that she had actually talked with Mrs. Clinton about her appearance "way back when, before the first hearing." According to Ms. Thomases, she and Mrs. Clinton discussed "that I was going to have to come down, and that I didn't think that I had very much interesting to tell you, that you were still going to ask me the questions because you felt the need to ask me the questions."(1092)

On the night of Mr. Foster's death, Ms. Thomases paged Ms. Williams at 12:15 a.m., while Ms. Williams was at the White House. When asked whether she talked to Margaret Williams after Ms. Williams searched Mr. Foster's office, Ms. Thomases claimed that she did not "recollect speaking with [Ms. Williams] 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."(1093) The Committee later obtained telephone records, however, indicating that Ms. Williams, right after speaking with Mrs. Clinton, called Ms. Thomases at 1:10 a.m. and spoke for 14 minutes.(1094)

With respect to her role in changing the procedures for reviewing documents in Mr. Foster's office, Ms. Thomases acknowledged that she spoke with Bernard Nussbaum on July 22. According to Ms. Thomases, Mr. Nussbaum brought up the subject of reviewing documents in Mr. Foster's office and described his plan of action, to which Ms. Thomases replied simply that it "sounds good to me."(1095) Mr. Nussbaum, however, testified that Ms. Thomases initiated the discussion, said that "people were concerned" about the review, and attempted to impose her views on the proper procedures.(1096) Even more importantly, Associate White House Counsel Stephen Neuwirth testified that Mr. Nussbaum understood from the conversation that Ms. Thomases and Mrs. Clinton were concerned about law enforcement officials having "unfettered access" to Mr. Foster's office.(1097)

Ms. Thomases testified that "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."(1098) Telephone records, however, established that, after receiving the early morning call from Ms. Williams, Mrs. Clinton called Ms. Thomases at 6:57 a.m. CDT on July 22, and talked for three minutes.(1099) Ms. Thomases then immediately paged Mr. Nussbaum at the White House and subsequently expressed her concerns about the search procedures.(1100) Even after confronted with these telephone records, Ms. Thomases maintained that she called Mr. Nussbaum merely to commiserate because she was "worried about my friend Bernie."(1101) Ms. Thomases 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.(1102)

When questioned about the repeated telephone calls she made to Ms. Williams's office on July 22 at the same time that White House officials were meeting to discuss the procedures for searching Mr. Foster's office, Ms. Thomases claimed that she probably was attempting not to reach Ms. Williams but rather to be transferred to someone else in the White House.(1103) Ms. Thomases also implausibly suggested that she may have been put on hold during these lengthy calls, for as long as nine minutes,(1104) despite her earlier testimony that July 22 was "a very, very busy day in my work."(1105)

Finally, U.S. Secret Service records established that Ms. Thomases entered the White House at 2:50 p.m. on July 27.(1106) Within ten minutes of her entry, Robert Barnett arrived at the White House to meet with Mrs. Clinton.(1107) During this visit, Mr. Barnett reviewed the Clintons' personal files, previously in Mr. Foster's office, and transferred them from the White House residence to Williams & Connolly.(1108) Ms. Thomases left the White House at 8:20 p.m., after Mr. Nussbaum had turned the note apparently in Mr. Foster's handwriting over to Attorney General Janet Reno. When asked about this unusual visit to the White House--Ms. Thomases is normally in Washington on Wednesdays(1109)--Ms. Thomases testified that she implausibly had "no specific recollection of being at the White House on the 27th."(1110)

Finding 16.

Bernard Nussbaum provided inaccurate and incomplete testimony to the Special Committee concerning the handling of documents in Mr. Foster's office following his death.

As members of the Special Committee recognized previously, "a witness' response of `I don't recall' or `I don't remember' may also be a false statement to the Committee."(1111)

Bernard Nussbaum did not recall Bill Burton asking him to seal Mr. Foster's office on the night of Mr. Foster's death.(1112) Sylvia Mathews testified that she overheard the conversation,(1113) and her notes supported the testimony.(1114)

Mr. Nussbaum did not recall talking to Philip Heymann on July 21 about the procedures for reviewing documents in Mr. Foster's office.(1115) Mr. Heymann testified that he and Mr. Nussbaum agreed that Justice Department lawyers would review the documents;(1116) David Margolis,(1117) Roger Adams,(1118) and Charles Hume(1119) testified that Mr. Heymann so described the procedure to them on July 21.

Mr. Nussbaum did not recall overruling Mr. Neuwirth when Mr. Neuwirth stated in the evening of July 21 that Mr. Nussbaum would review the documents.(1120) Mr. Adams and Mr. Margolis described the incident in detail at the time to other Justice Department officials and later to the Special Committee.(1121)

Mr. Nussbaum did not recall telling Mr. Neuwirth that Ms. Thomases and Mrs. Clinton were concerned about investigators having "unfettered access" to Mr. Foster's office.(1122)

Mr. Nussbaum did not recall telling Mr. Heymann on July 22 that he would call Mr. Heymann back before conducting the search.(1123)

Mr. Nussbaum did not recall Mr. Margolis or Mr. Heymann telling him on July 22 that he was making a "terrible mistake" by changing the procedures.(1124)

Mr. Nussbaum did not recall Mr. Heymann calling him in the evening and asking him, "Bernie, are you hiding something?"(1125)

Mr. Nussbaum did not recall telling Susan Thomases about the note on July 26.(1126)

The frequency of these memory lapses contrasted with Mr. Nussbaum's very definite recollection of other purported facts -- facts that put his conduct in a more favorable light. Mr. Nussbaum was sure that no one removed any files from Mr. Foster's office on the night of his death. He was sure that there was no agreement with the Justice Department with respect to procedures to review documents in Mr. Foster's office. He was sure that there was no discussions in the White House about Whitewater at the time of Mr. Foster's death.

Whether a product of deliberate deception or selective memory, Mr. Nussbaum's frequent and convenient assertions that he did not recall important, often damaging, events lead the Special Committee to the obvious conclusion that Mr. Nussbaum provided incomplete and inaccurate testimony to the Special Committee.

*

*

*

The Committee's ability to investigate fully the true facts concerning the handling of documents in Mr. Foster's office following his death has been hindered by the often incomplete and inaccurate testimony of key witnesses. In conjunction with this report of findings, the Special Committee has voted to refer the matter, including the testimony of specific witnesses, to the Office of Independent Counsel for investigation of possible criminal violations.

In sum, notwithstanding the pattern of stonewalling by the White House and other witnesses, the Special Committee uncovered evidence that clearly established a pattern of highly improper conduct by senior White House officials in the days following Mr. Foster's death. The Committee and the American people will never know exactly what happened in Mr. Foster's office in the days after his death -- what documents were removed, whether any documents were destroyed, and whether any evidence of ethical or even criminal misconduct was covered up. The misguided actions of senior White House officials raise not only questions of impropriety, but also raise the specter that investigations were impeded and justice thwarted


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