On September 24, 1996, the Committee on Government Reform and Oversight approved and adopted a report entitled "Investigation into the White House and Department of Justice on Security of FBI Background Files." The chairman was directed to transmit a copy to the Speaker of the House.

I. Executive Summary

A. Introduction

The committee's investigation into the unauthorized possession of hundreds of FBI background files by the White House remains in progress. There are many questions that are unanswered; cooperation from the White House and other witnesses has not been full and complete; more witnesses must be interviewed; and, many more documents from earlier committee requests are outstanding. Accordingly, this is an interim report to inform the public as to the status of the investigation in the closing days of the 104th Congress.

1. The conduct of White House officials

The FBI files matter, or "Filegate," is as serious an issue as the Clinton administration has encountered. The discovery of the unauthorized access to so many FBI background files on so many former White House employees is bad enough. These files contain the most private and personal information on an individual, his spouse and family. The fact that two individuals, Craig Livingstone and Anthony Marceca, with extensive political involvement and checkered pasts were in charge of handling the files is cause for alarm and investigation.

That present and former White House officials have not been forthcoming in revealing who hired the two central characters in this matter is of great concern to the committee. The committee intends to aggressively pursue the answers. Whoever was responsible for bringing them into the White House is ultimately responsible for these actions. Placing the public trust of such sensitive, private files in the hands of two political operatives was a disaster waiting to happen. And, it did.

In general, the FBI files issue shows a lack of respect by the Clinton administration for proper security procedures to protect both the President of the United States and the national security. This is all the more so since the White House ignored recommendations from a Democratic committee chairman of the U.S. Senate to take security precautions in response to reported security irregularities in the first years of the Clinton administration.

The Clinton White House displayed a lack of respect for the privacy and confidentiality of private citizens. The mere fact that individuals lacking in professional skills and discretion were put in charge demonstrates the cavalier approach of the Clinton administration toward sensitive security matters.

During the early revelations of the FBI files investigation, White House officials were quick to blame others rather than take responsibility. This happened even when all the facts were not known. First, it was touted as a routine mistake; then it was blamed on a low-level clerk; then the General Accounting Office; and then, the Secret Service. Each of these explanations was thoroughly discredited.

Some White House officials, through surrogates and unattributed background quotes in the press, continue to blame the Secret Service, even after that theory was soundly debunked. The fact that the White House seeks to avoid responsibility for this matter, and instead passes the buck, ensures that White House accountability for its own actions will be elusive.

Furthermore, the FBI files issue made it more difficult for the FBI and the Secret Service, the two agencies responsible for protecting the President and performing security for the White House, to trust actions of the White House. Prior to the files matter coming to light, these agencies cooperated with the White House under the presumption of a "good faith" relationship. Now, however, both have taken steps to implement more skeptical, arms-length processes for future interaction with White House officials. This unfortunate departure from tradition is yet another result of the growing mistrust of our political leaders in Washington. Undoubtedly, it is a black eye on this White House.

2. The conduct of the FBI

The committee also is troubled by another serious issue that re-emerged during the FBI files investigation: the politicization of the FBI. Questions about a cozy relationship between the FBI and the White House surfaced during the committee's investigation into the White House Travel Office firings. At the time, in a statement by FBI Director Louis Freeh said, "I told the President that the FBI must maintain its independence and have no role in politics."(1) These questions raised great concern because the politicization of law enforcement in a democracy is a swift and sure way to trample over the civil liberties of private citizens. Consequently, the FBI Director took steps to reverse these perceptions of coziness. But it did not prevent the hundreds of files from being sent to the White House without question.

In the course of the committee's inquiry into the files matter, this perception resurfaced. The committee uncovered several questionable actions by FBI General Counsel Howard Shapiro that we find inexplicable and inexcusable. His "heads up" to the White House Counsel had the effect of an early warning to the subjects of the committee's and the Independent Counsel's investigations of potentially damaging information. Shapiro's delivery of a politically controversial manuscript, joint editing of a White House letter to Director Freeh, and possession of his own personal White House pass had a similar effect.

This committee witnessed blatant interference in its investigatory proceedings. Mr. Shapiro's justifications for his actions are implausible. The committee is seriously troubled by the interference of Mr. Shapiro in the investigations of this committee, as well as those of the Independent Counsel. Mr. Shapiro himself acknowledged that his "heads up" to the White House was inappropriate. However, his coziness with the White House continues. Even the perception of such a relationship threatens the independence of the FBI. The committee calls upon Mr. Shapiro to tender his resignation from the office of the FBI general counsel.

The act of resignation is necessary, if the Director wishes to restore the arms-length relationship between the FBI and the White House, as well as the public's confidence. Failure by the Director to do so will allow the continued erosion of confidence in law enforcement and in the Director's own independent leadership.

The committee has yet to determine whether colossal incompetence or a sinister motive precipitated these events. We have yet to learn exactly who is Craig Livingstone, who hired him and why. Answers to these questions are necessary to explain the true story of "Filegate."

The committee's investigation has sufficient information to realize the great danger in the White House's unauthorized acquisition of these sensitive FBI files. We know the files were in the hands of political operatives, non-professionals, volunteers, teen-agers in proximity to a photocopier, and individuals without security clearances. We know there was virtually no supervision over this sensitive process. We know that some data was taken from the White House compound to the home of a witness who has now claimed fifth amendment protection against testifying before Congress. No one yet knows where these files have been or who looked at them. The potential for the abuse of the rights and privacy of hundreds of private citizens remains clear and present.

The committee continues to investigate this case and discover the true story. In the meantime, the committee cannot yet assure the public that a lax attitude toward and disrespect for the privacy and rights of ordinary Americans has not gripped this White House.

B. The Matter of the FBI Files

1. The discovery of the files: Travelgate to Filegate

Since May 30, 1996, the Committee on Government Reform and Oversight has conducted an intensive investigation into the actions of the White House and the Department of Justice concerning the White House's improper acquisition of hundreds of FBI background investigation files of former Republican officials. The genesis of this revelation of massive invasion of privacy was with the committee's document requests for all previously withheld files on Billy Dale.

On May 30, 1996, the committee discovered that the White House had improperly ordered Billy Dale's FBI background file 7 months after he was fired, when the White House finally produced 1,000 pages of the 3,000 pages of documents that were being withheld under a May 9, 1996 invocation of executive privilege.

The committee issued a January 11, 1996 subpoena which included a request for all records relating to Billy Dale. The documents were due to the committee on January 22, 1996. Prior to the subpoena, the committee had submitted several document requests to the White House which included document requests relating to Mr. Dale.

Prior to May 30, 1996, the White House Counsel had represented in February 1996 that the only categories of documents withheld were: "personnel" records, attorney notes, and "deliberative material" concerning investigations of Congress and the Independent Counsel.

Throughout the spring of 1996, White House Counsel withheld this group of documents. At no time did the White House Counsel make any representations that he was in possession of an FBI background file of Mr. Dale. In fact when Mr. Dale's file was forwarded on May 30, 1996, on the morning a contempt vote was scheduled, it was not even distinctly identified in a production log and was just grouped among documents emanating from "The Counsel's Office." Since the document had been obtained from the Office of Records Management who received it from the Office of Personnel Security, the characterization of the source of the document was misleading.

Yet if the document did come from the "Counsel's Office" as identified by the White House, why does the White House Counsel Jack Quinn claim that he told the committee about the document in February 1996 while Special Counsel Jane Sherburne, who was at the same February 1996 meeting, claims she didn't know about the Billy Dale file until June 4, 1996? The Counsel's Office has provided mutually inconsistent accounts of who knew about the Billy Dale file and when.

It is important to note that the Billy Dale file only was produced after a vote of contempt was taken in the full committee on May 9, 1996. In a meeting with Chairman Clinger shortly before the contempt vote, Quinn informed the chairman that he had not even attempted to collect certain categories of subpoenaed documents and he had not yet undertaken a review of the documents for privilege issues. Quinn issued a blanket "protective" executive privilege claim over the documents on May 9, 1996 at the behest of the President. Personnel records are not normally subject to executive privilege.

"Personnel records" are distinctly different from FBI background reports and are kept in separate and distinct offices at the White House. Certainly the Counsel's Office, which handles the FBI background reports, is aware of this distinction. After all, the Counsel's Office reviews FBI background reports and it does not ordinarily review "personnel" records. The White House Counsel's Office was misleading in how it represented Billy Dale's file to the committee. While the White House Counsel now tries to revise the history of how they characterized this file, the actions by Counsel staff are representative of the type of gaming that was typical in negotiating document productions.

On May 30, 1996, when Billy Dale's file was produced to the committee, Chairman Clinger also was notified by letter (2) that President Clinton was formally asserting executive privilege over the then remaining 2,000 pages of outstanding documents. Quinn claimed that Attorney General Reno reviewed the documents and agreed with the propriety of assertion of executive privilege. Although Quinn represented that this assertion of executive privilege was being made by President Clinton, the committee never was provided any documentation of a personal assertion by President Clinton.

2. The discovery of the Billy Dale file

The privileged resolution was withdrawn from floor consideration at Chairman Clinger's request in order to review the new documents and determine the propriety of President Clinton's executive privilege claims over the remaining 2,000 pages of identified responsive documents.

The committee began an immediate review of the 1,000 pages already produced. That day, committee investigative staff discovered a White House memo, dated December 20, 1993, requesting a copy of Billy Dale's FBI background investigation previous report. The request for Dale's file was sent to the FBI a full 7 months after Mr. Dale and the White House Travel Office employees had been summarily fired and an FBI investigation announced by the White House.

The request form found among the White House's document production was in memorandum format addressed "TO: FBI, LIAISON" and "FROM: BERNARD W. NUSSBAUM."(3) The form stated that Mr. Dale's previous report was being requested because he was currently being considered for "ACCESS (S)" to the White House.(4) An attached memo indicated that the FBI complied with the request and forwarded the Dale file to the White House on January 6, 1994.(5)

Although the committee had previously issued, on February 7, 1996, a subpoena to the Department of Justice for all records pertaining to Billy Dale, DOJ never produced its copy of the document.

The committee asked Attorney General Reno to provide information on the Justice Department's knowledge of its failure to produce its copy of the Dale file and the White House memo requesting it in December 1993, particularly in light of the fact it was responsive to other Justice Department requests and subpoenas. The Department of Justice responded, stating that the committee had not requested the Dale file. The memo request from Nussbaum's office was not located in its search.

When FBI Unit Chief James Bourke was asked in a committee deposition about DOJ's failure to produce this document, he testified that he had "no idea" why, and that it wasn't his responsibility.(6) Mr. Bourke later explained that it was the FBI general counsel's responsibility to request document searches in response to congressional subpoenas and he was not aware of any request.(7)

It is clear that White House officials attempted to hide its requisition and possession of the Dale file: first, by erroneously describing it as a personnel file instead of an FBI background file; second, by withholding it under a blanket executive privilege; and third, for failing to list this and other specific documents in its final privilege log.

The committee has yet to find the reason why the White House requested the Dale file from the FBI 7 months after he was fired.

3. White House's changing explanations for "Filegate"

In the first few days following the discovery, the White House offered several conflicting explanations about how it obtained hundreds of FBI background files. The White House initially released statements from Craig Livingstone's attorney claiming that the activities of Livingstone and Marceca were all an "innocent mistake." Why did the White House so quickly endorse the explanations of Livingstone and Marceca before getting all the facts?

4. A "file clerk" caused the problem_June 5, 1996

White House Special Counsel to the President Jane Sherburne issued a statement on June 5, 1996, claiming that "file clerks" performing a routine recordkeeping effort "may have mistakenly" sought Mr. Dale's FBI background file.(8) Ms. Sherburne refused to provide the committee with the name of the "file clerk" that sought Dale's file. Unknown to the committee, at the time, Ms. Sherburne met with Livingstone that evening at the White House. Mr. Livingstone claimed to know nothing about this growing "problem" at the time. Ms. Sherburne testified that Livingstone was "as confused and puzzled by it"(9) as she was.

5. The General Accounting Office caused the problem_June 6, 1996

By June 6, the White House issued another explanation for the improper possession of the FBI files. The White House stated that a "low-level file clerk" was not in fact at fault; rather, that the General Accounting Office ("GAO") might have "triggered" a request for these files in the course of its investigation of the White House Travel Office matter. The GAO immediately denied any involvement or request of FBI files.(10)

6. "An innocent bureaucratic mistake"_June 7, 1996

The committee soon learned that, in addition to Mr. Dale's improperly sought FBI file, the White House had obtained at least 338 other FBI files of prior Republican administration officials.(11) One of Livingstone's lawyers, David Cohen, who had been conducting his own investigation, telephoned Sherburne, and gave her the "bad news" that the White House had ordered a lot of other files beyond Dale's. Ms. Sherburne learned that files on former Republican administration officials were also ordered.(12) White House Counsel and "Travelgate" spokesman Mark Fabiani, immediately labeled this matter "an innocent bureaucratic mistake."(13)

Fabiani told the Associated Press on June 7, that Livingstone's attorney's discovery provides "a completely innocent explanation."(14) Fabiani also told the New York Times that the "detailee" whom he still refused to identify "was mistakenly given an outdated list of White House employees dating back to the Reagan Administration," and that "no one in the White House ever reviewed the files."(15) Further, Fabiani informed the Associated Press that the ordering of numerous other files was proof positive "that Mr. Dale's file was not singled out."(16) Chairman Clinger sent a letter to the White House on June 7 requesting all official information on this matter, including the name of the "mystery" detailee.

7. The Secret Service caused the problem_June 10

In a June 10, 1996 letter, Sherburne stated that the FBI background files were assembled in the White House Office of Personnel Security "as a result of a mistaken understanding" that these prior Republican administration officials "continued to have access to the White House compound after the start of the Clinton Administration."(17) Ms. Sherburne attached to her letter a sworn statement of Anthony Marceca, the detailee who ordered the files. Marceca stated that he based his requests to the FBI on Secret Service lists of White House passholders. Contrary to Fabiani's statements to the New York Times that "no one in the White House ever reviewed the files,"(18) Mr. Marceca revealed in his statement that he, in fact, did examine the contents for inconsistencies. Marceca told Livingstone's lawyer that he, in fact, read all of the files in order to pass on any "derogatory information" to Livingstone.(19) Sherburne later explained that Livingstone's lawyer met with Mr. Marceca on Sunday, June 9 at his law firm's offices. Mr. Marceca dictated a statement to Livingstone's attorney in the presence of Livingstone.(20)

The frequently changing explanations in the early days show that the White House was quick to avoid accountability by passing the blame. It engaged in a public strategy of excuse-making. However, each time the blame was shifted elsewhere, the explanation was discredited. The White House continued to cling desperately to the explanation of blaming the Secret Service, even though it, too, was debunked in the committee hearing with the Secret Service. In the final analysis, the White House must take full responsibility for this fiasco and stop trying to lay blame elsewhere.

It is unconscionable that the White House shifted the blame from its own incompetent appointees to those of the U.S. Secret Service. The White House mounted a stealth campaign consisting mainly of background statements attributed to unidentified sources, to blame the Secret Service. The Secret Service initially refrained from defending itself, following its tradition of not making public statements about White House matters. Eventually, Secret Service witnesses were summoned before the committee to explain the charges leveled against them. Their testimony, and their extensive audit of the White House's systems, showed that no single "faulty" Secret Service list could provide justification for how Anthony Marceca obtained hundreds of FBI background files of former Reagan and Bush officials.

The only list from which Marceca could have obtained all of the names released by the White House to date, is a master E-Pass list, which lists all "A," active and "I," inactive passholders for approximately the past 8 years. Mr. Marceca testified that he thought the "I" next to the name on the list indicated an individual was an intern.(21) Mr. Marceca would have had to deliberately order the files of people identified as "inactive" in order to have utilized this list. Mr. Marceca would have us believe that he ordered the FBI background files of such notable figures as Ken Duberstein, A.B. Culvahouse and Tony Blankley, without any recognition of the names, or that they were not "holdover interns." The committee is especially skeptical of this conclusion given Marceca's vast political experience.

8. Procedural safeguards against "innocent snafus"

In an attempt to get to the bottom of the cause of the FBI files issue, the committee held its first hearing on June 19, 1996. In that hearing, we learned how the very sensitive matters of confidential background checks and security clearances were handled by prior White Houses, both Democrat and Republican.(22) In the past, the President has appointed only professional, circumspect and highly responsible people to be put in charge of these most sensitive matters.

In this hearing, former Counsels to the President and Livingstone's predecessor in the White House Office of Personnel Security testified to the careful, and painstaking process that was followed in order to ensure the confidentiality of these sensitive files. We learned that this function was never handed over to political operatives, or detailees from outside agencies, and certainly not to teen and college age interns lacking security clearances, such as occurred in the Clinton White House.(23)

We further learned that for the past 30 years, the White House has engaged in a careful process of performing background checks and granting or rejecting security clearances on individuals to determine their suitability and stability for working at the White House and throughout the executive branch. The clearance and background processes exist to protect the President as well as the national security. The case of convicted spy Aldrich Ames is a painful reminder of the kind of problem that can arise when vigilance in national security matters is lacking. Given the necessity of sound procedures to guard against breaches of security, those who oversee security procedures themselves must be carefully selected and always above reproach.

Nancy Gemmell, former staff assistant in the Security Office since 1981, testified that at the beginning of the Clinton administration Livingstone had numerous teenage interns working inside the security office and even in the vault. The interns did not have background investigations, security clearances, or proper supervision. They had access to all confidential FBI background files and a photocopier machine stood nearby.

It is clear that supervision and accountability are imperative to such a sensitive process. As Washington Post editorial chief Meg Greenfield pointed out, "[E]ven if the accident rationale holds up, it was a plenty serious and inexcusable accident. Neither that material nor that responsibility should ever have been placed in those hands."(24)

It is troubling, both to the Congress and the public, to think the President could allow such inappropriate staff to oversee security matters in such a careless fashion. A brief review of the Clinton administration's history of handling security issues shows other evidence of irresponsibility.

In March 1994 the problems and delays in obtaining White House passes and security clearances came to light, when congressional inquiries delved into why hundreds of White House staffers did not yet have background investigations completed. Associate Counsel William Kennedy was assigned responsibility for overseeing security matters, including the issuance of passes and security clearances. Kennedy was subsequently relieved of his responsibilities in this area; yet Livingstone, who was directly in charge of managing security, was not.

Later, in August 1994, Senator Dennis DeConcini, then Democratic chairman of the Subcommittee on Treasury, Postal Service, and General Government of the Committee on Appropriations, which provides funding for the White House, concluded an investigation of reported problems in Livingstone's office. Chairman DeConcini wrote to the President (25) suggesting specific changes that were sorely needed in the Personnel Security office. Those changes included replacing Livingstone with a career professional who had a security background. Chairman DeConcini's recommendations were considered but not implemented by the White House, and for some reason, Livingstone remained in charge.(26)

It is clear that security procedures are only as effective as the professionals who manage them. Following the committee's first hearing, two points became evident. First, there were serious security problems at the Clinton White House; second, those responsible for White House security under the Clinton administration were hardly professional and were a stark departure from past administrations.

9. Livingstone and Marceca

Among the foremost questions the committee sought to investigate regarding how and why the White House obtained these FBI background files, was, "Who is Craig Livingstone?" "Who recommended him?" "Who hired him?" and given his background, "Why was he put in charge of such a sensitive job at the White House?" These are seemingly simple questions, but complete answers to them are still not forthcoming.

Livingstone did not have the professional background necessary to perform the sensitive functions of the Personnel Security Office. Yet he was put in charge of that office, and then managed to remain in that role despite the frequent turnover of White House Counsels. Conventional wisdom would suggest that management turnovers bring staff reorganizations. Instead, over a 3-year period, he enjoyed a 40 percent salary increase by touting his record as a "team player"(27) while keeping bankers' hours.(28) Numerous questions still remain about who brought Craig Livingstone into the Clinton inner circle as security chief. The committee has yet to piece together a clear picture of who is responsible for Livingstone working in the White House after the inauguration. Given the information available, did former White House Counsels Bernard Nussbaum, Lloyd Cutler, Abner Mikva and present Counsel to the President Jack Quinn really believe that the political advance man and ex-bouncer was the best individual for this sensitive position?

Mr. Nussbaum testified before this committee that he does not know who hired Livingstone. Instead, he suggested that the Chief of Staff 's office may have been involved.(29) Mr. Livingstone's supervisor, Rose law firm partner William Kennedy, said in all committee depositions, as well as hearings, that he could shed little light on who brought Livingstone into the White House. Mr. Livingstone testified to the committee he does not know who recommended him. He gave an arguably tortured explanation of his journey into the White House as a permanent employee. Those who previously heaped high praise on Livingstone, such as the President's senior advisor George Stephanopoulos, virtually denied knowing him to the press. President and Mrs. Clinton's denials of hiring, or participating in the hiring of Craig Livingstone is in direct conflict with statements from their own senior staff to career FBI agents.

Both Livingstone and Marceca had extensive histories as campaign advance men and political operatives. Marceca was hand-picked by Livingstone for his White House detail through his personal request for Marceca to then-Associate Counsel Kennedy. Sworn testimony by Dennis Casey, a former Gary Hart campaign consultant who worked with Livingstone and Marceca on the campaign in 1984, shed some light on their possible motives for gathering information on Republican officials and fired Travel Office workers. Casey testified that both Livingstone and Marceca in the past had endorsed the utilization of personal information to manipulate support for their political candidate.

Documents show that Livingstone worked in "counter-events operations" during the 1992 Clinton-Gore campaign, and deployed partisan "tricks" to disrupt Former President Bush's campaign for re-election.(30) Livingstone's police record shows a report filed against him during his tenure in the White House where he was alleged to have physically threatened a female neighbor. Annoyed at her barking dog, Livingstone threatened to "beat her face in."(31) The Officer who questioned Livingstone reported that he admitted to making the threat. Mr. Marceca has had his own brushes with the law in previous jobs in Texas and Pennsylvania.

In the committee's second hearing, we learned that Marceca left the White House compound with computer disks, which included details of the confidential files of National Security Council staffers and other White House employees.(32) Documents produced by Marceca also indicated that his duties in the White House encompassed more than just filling out forms. Marceca's memoranda to Livingstone included analyses of the backgrounds of individuals who could not pass muster on security issues.(33) Mr. Marceca appeared to be providing legal advice to facilitate the "cleansing" of background problems. Although Marceca's detail at the White House was not renewed after his background investigation exposed some problems, he continued frequent entry both as a volunteer and as a visitor with access until June 1996. Documents produced by the White House suggest that Marceca played a larger role in White House security matters than the Clinton administration has admitted to the public.

Further, in late 1993 and 1994, Livingstone was attempting to obtain a Presidential appointment for Marceca, either as an Inspector General or a U.S. Marshal. Even after Marceca's background investigation, completed in December 1993, exposed suitability problems, attempts to employ Marceca continued. When that endeavor failed, Livingstone again tried to detail Marceca to the Personnel Security office, contrary to Associate Counsel Kennedy's testimony that he thought Marceca should just "go back to where he was."(34) Strangely, on March 17, 1994, it appears Livingstone withdrew his request to Secretary of Defense Perry for Marceca's detail.(35)

However, that was not the end of Marceca's work for the White House. Phone messages Marceca left for Livingstone and other documents show that Marceca was employed by the White House on a number of advance trips for President Clinton and other officials. One message from Marceca stated that he had just returned from a trip with Secretary Perry, and wanted to talk to Livingstone about what he had observed. Another message asked if Livingstone wanted to "be an agent working for Tony."(36) Why were individuals with questionable backgrounds travelling with the President? Was Marceca asked to make observations of his trip with Secretary Perry? What information was he sharing with Livingstone? Such documents raise serious questions about the White House's discretion in employing individuals with highly questionable backgrounds for important security positions.

In addition to the dubious backgrounds of Livingstone and Marceca, their various sworn statements about the requisitioning of the files appear inconsistent both within and between their own statements. Additionally, their statements conflict with sworn testimony provided by the FBI, the Secret Service and a former veteran employee of the Security Office, Nancy Gemmell. Furthermore, since Marceca's appearance at the committee hearing on June 26, 1996, he has refused to provide further testimony to the House of Representatives or the Senate, pleading his fifth amendment right against self incrimination. Livingstone was kept on in his position as director even after the files matter was uncovered, and was not placed on administrative leave until he personally made the request on June 17, 1996.(37) Mr. Livingstone resigned at a hearing before this committee on June 26, 1996.(38)

10. Secret Service hearings

The Secret Service provided numerous briefings to members of House and Senate committees and testified at two hearings on this matter. At the Government Reform and Oversight hearing, it was finally resolved that no possible conglomeration of Secret Service lists could have documented what is now believed to be more than 400 individuals as active passholders.

Whatever the reason for the White House's assorted and conflicting explanations, it became clear that the Secret Service was not at fault as evidenced by Livingstone's own statement to Special Agent Cole on June 7, 1996 when he said, "We just wanted you guys to know that we weren't blaming the Secret Service. Using an old list was our fault, and we had the current stuff you guys gave us. I don't know what happened."(39)

The Secret Service spent an extraordinary amount of time and resources carefully reviewing the quality of the information it provided to the White House. Countless hours were dedicated to examining if any material it provided to the White House could have been responsible for the hundreds of improperly requested FBI background files. In the end, the Secret Service could not identify any systemic problems which would explain how this happened.

11. FBI internal investigation and report

Director Freeh issued a June 5, 1996 press release denying that he had any prior knowledge of the White House's request for Billy Dale's file and announcing that he had tasked the FBI general counsel, Howard Shapiro to conduct an investigation into the matter and report his findings to Independent Counsel Kenneth W. Starr, who had become involved on June 6, 1996, because of links to his Travel Office investigation.(40)

Director Freeh explained that any contacts between the White House and the FBI were governed by the Justice Department's July 3, 1993, post-Travel Office firing policies (41) and the Attorney General's November 15, 1994 policy regarding White House contacts. Director Freeh assured the public that these policies "are adhered to scrupulously."(42)

An official at FBI headquarters informed the press that Director Freeh intended "to make sure that the public's perception is that there's not some cozy relationship between the White House and bureau executives." Another FBI agent added that Director Freeh "certainly doesn't want the bureau mixed up in this stuff."(43)

On June 13, 1996, the FBI revealed that an additional 71 files of prior Republican administration officials had been requested by and delivered to the White House by the FBI.

On June 14, 1996, the FBI issued its "Report on the Dissemination of FBI File Information to the White House," revealing that 408 files were sought by and delivered to the White House "without justification." Director Freeh noted that "the prior system of providing files to the White House relied on good faith and honor" of White House employees and that "unfortunately, the FBI and I were victimized." Director Freeh noted, "Among the unquestionably unjustified acquisitions were reports relating to discharged Travel Office employees Billy Ray Dale and Barnaby Brasseux." Director Freeh also acknowledged that these were "egregious violations of privacy." Director Freeh promised the American people that "it will not happen again on my watch."(44)

As FBI Director Freeh stated in his report, the process has always relied on the "good faith and honor" of those involved.(45) There are inherent risks involved when, instead of "good faith and honor," political operatives, and inexperienced teenagers are put in charge of this highly sensitive process.

12. Attorney General Reno refers FBI files investigation to Judge Starr

Independent Counsel Kenneth Starr announced on June 18, 1996, that he did not believe his office had authority to pursue the investigation of the files matter without a request from the Attorney General to expand the scope of his authority. In response, Attorney General Reno announced that day that FBI Director Freeh would be asked to conduct a thorough investigation into the matter. Following this announcement, the White House wrote to Chairman Clinger promising to provide full cooperation with the FBI's investigation and announcing changes being instituted in the White House concerning its procedures to obtain and review FBI background investigation files.(46) Subsequently, on June 20, 1996, Attorney General Reno filed a motion with the District of Columbia Federal Circuit Court requesting an expansion of Judge Starr's investigative authority so that he could pursue this improper use of FBI background files. The order was signed on June 21, 1996.(47)

13. Improper contacts with the FBI

The committee's investigation continued. Among the many questions, which the committee sought to answer, was the hiring of Craig Livingstone. Thus, at the request of FBI Director Freeh, Chairman Clinger, on July 18, 1996, went to Bureau Headquarters to review Livingstone's FBI background file. Contained in the file was a 1993 agent interview of Bernard Nussbaum wherein Nussbaum is recorded as telling Agent Sculimbrene that Craig Livingstone had come "highly recommended by Hillary Clinton." The statement is in direct conflict with sworn statements made by Nussbaum in a June 26, 1996 committee hearing. In the hearing, Nussbaum stated that he did not know who brought Livingstone into the White House for the position in the security office. He also stated that he never spoke to the First Lady about Livingstone.(48)

Prior to the chairman's review of Livingstone's FBI background file, FBI General Counsel Howard Shapiro provided the White House with a "heads up" about the highly pertinent information related to Mrs. Clinton's involvement in recommending Livingstone. The committee is greatly troubled by the fact that Shapiro provided advance notice of this information to the White House. The FBI has yet to identify any legitimate purpose in Shapiro's actions. The FBI failed to contact the Independent Counsel, which had clear jurisdiction over this matter. Mr. Shapiro's specious argument is that "the Bureau had a responsibility to advise affected parties."(49) Mr. Shapiro ignored the Attorney General's admonition that any FBI involvement would create a "political conflict of interest." Mr. Shapiro's actions potentially damaged both the committee's and the Independent Counsel's investigations, while exacerbating the already growing perception of politicization of the FBI.

Subsequent to the revelation of the Nussbaum interview, Shapiro dispatched two senior FBI supervisory agents to now-retired Agent Dennis Sculimbrene's home to formally interview him about the Nussbaum statement. Agent Sculimbrene got the impression that the White House was unhappy about his interview report on Bernie Nussbaum. The sending of agents to Sculimbrene's home involved Shapiro in an operational matter, which is inappropriate for the general counsel.

Further conflicts uncovered in Shapiro's testimony before this committee include his hand delivery of former FBI agent Gary Aldrich's book, "Unlimited Access," to White House Counsel Jack Quinn in February 1996.(50) The book was in pre-publication form and in the possession of the FBI solely for its review. Shapiro testified that in giving a copy to the White House he was notifying them of possible security risks posed by information revealed in the book. However, the White House has yet to produce a complete response to the committee on this matter.

Shapiro's frequent contacts with the White House is evidenced by the fact that he is the first FBI general counsel in over a decade to have a permanent White House pass, as well as his assistance to White House Counsel Quinn in drafting a letter to Director Freeh. Incredibly, Shapiro offered his advice on the letter, which attacked both the FBI and Chairman Clinger.

In light of Attorney General Reno's determination that the FBI and the Justice Department refrain from investigating anything related to the White House's acquisition of FBI background files, the committee finds Shapiro's interference in the matter clearly and totally inappropriate. Mr. Shapiro's contacts with the White House appear to be in direct conflict with his position as general counsel of the FBI and suggest a far too cozy relationship between the White House and the FBI.

C. FINDINGS

The committee, while investigating the matter of the security of FBI background files has made the following findings:

o FBI Background files often include the most sensitive and confidential personal and financial information about the individual being reviewed.

o The White House improperly requested hundreds of confidential FBI background files seemingly without any justification. This was a violation of the constitutional rights and private lives of many upstanding citizens, whose files were requisitioned and reviewed by White House employees. Many of the individuals were political appointees of the Reagan and Bush administrations. This leads to the possibility that the Clinton administration was attempting to prepare a political "hit list" or "enemies list" with the most sensitive and private information possible.

o The White House Office of Personnel Security and the FBI maintained a system of mutual convenience which allowed low level staff to access any file without question by the FBI. The Clinton administration has, on a number of occasions, failed to implement safeguards that would have prevented this lapse in security. Further, the longstanding policy of the FBI, which relied on the honor of White house employees, was exploited by Clinton administration employees.

o FBI General Counsel Howard Shapiro provided confidential FBI law enforcement information about Mrs. Clinton's role in bringing Livingstone to the White House. When Shapiro realized that the information contained in Livingstone's FBI background file could damage Nussbaum and Mrs. Clinton, he immediately contacted the Office of White House Counsel and read verbatim the incriminating contents of Livingstone's file.

o Once White House Counsel Jane Sherburne learned that the information contained in Livingstone's file could damage Nussbaum and Mrs. Clinton, Sherburne contacted Mrs. Clinton regarding the incriminating information.

o Sherburne possibly violated ethical standards by informing private attorneys for Bernard Nussbaum and Craig Livingstone about confidential FBI law enforcement information. On the day before reports of his testimony before a grand jury, lawyers for Nussbaum were told about evidence uncovered in a search of Livingstone's file that contradicted Nussbaum's testimony before the Committee on Government Reform and Oversight. Mr. Livingstone received the same information.

o White House Office of Personnel Security staff failed to properly secure confidential FBI law enforcement files. The committee was provided with testimony and evidence that staff and interns without the necessary clearances had unfettered access to the highly sensitive material in the FBI background files including that of more than 400 former Bush and Reagan administration officials.

o The FBI continued to involve itself in the investigation of the FBI files matter after receiving notice from the Attorney General that a conflict of interest existed between the FBI and the White House concerning this matter. Mr. Shapiro notified the White House about the incriminating contents of Livingstone's background file before the committee was allowed to review it. Shapiro assisted with correspondence between the White House and the FBI regarding the FBI files matter and the investigation by the Committee on Government Reform and Oversight.

o Army Detailee Anthony Marceca was given unfettered access to confidential FBI law enforcement files and allowed to remove confidential information from the White House, despite his own inability to receive White House clearance. Marceca's removal of information in those files from the White House was inappropriate.

o FBI General Counsel Howard Shapiro provided the White House Counsel a pre-publication copy of Gary Aldrich's book, thus allowing distribution of the book to the President's political damage control operation. Mr. Shapiro improperly allowed the White House access to a manuscript provided to the FBI under an employment agreement with a former agent without any valid basis for doing so.

o The White House withheld from Congress responsive subpoenaed documents that further implicated individuals under criminal investigation. The White House began the release of disputed documents only under threat of contempt.

o The White House asserted executive privilege over documents that had no nexus to the President or his need to communicate with his staff concerning issues involving the Presidency or national security. Many of the documents received by the committee, over which the President made an executive privilege claim, contained routine administrative information or communications on issues having no bearing on issues of national security.

D. Recommendations

The committee has undertaken a preliminary investigation into the improper release of FBI background files to the White House. This interim report is the result of that investigation. Hearings, depositions, and document review have produced additional questions still under review. The committee is not satisfied that the public has the answers to many of these concerns. It would therefore be imprudent to make recommendations on a set of incomplete facts. The only exception concerns Mr. Shapiro's activities. Even though a complete review of Shapiro's activities has not been completed, it is clear from the evidence available to the committee that Shapiro's actions were grossly inappropriate and that he should, therefore, resign.

This committee owes it to the individuals whose files were improperly obtained by the White House to continue a thorough investigation of these circumstances to find out what happened to their most private information.

The committee suggests a broad scope for the subsequent stages of this important investigation. It, therefore, puts forward a set of questions for the further consideration of the committee.

1. Who hired Craig Livingstone?
2. What list was used to make up the White House requests for FBI background files?
3. Who reviewed the contents of FBI background files for Reagan and Bush administration officials?
4. Were the contents of the FBI background files ever transmitted electronically to any computer database in or outside the White House complex?
5. What effect do new procedures have on the White House pass process and FBI background checks?

7. What standard procedures are in place to ensure that those without the proper clearances do not have access to material protected by the Privacy Act, which are stored in the White House?

8. What policies should be implemented to ensure that FBI officials do not interfere with ongoing investigations outside the Bureau's jurisdiction?

II. White House Office of Personnel Security

A. History of the Office of Personnel Security

The White House conducts some level of background check on every individual requesting access to the complex and on every individual who is being considered for a Presidential appointment. There are several ways in which this background check can be conducted, ranging from a name check to a full field background investigation. Historically, the White House Counsel has been responsible for reviewing the FBI background reports of individuals for suitability purposes. To assist the Counsel in processing the background reviews, the Johnson administration created the White House Security Office.(51) The head of the office, holding the title of Assistant to the White House Counsel for Security, reported directly to the White House Counsel or Deputy White House Counsel.(52)

From its origination up to the Clinton administration, the White House Security Office was responsible for coordinating paperwork to ensure that all of the forms that appointees were required to complete before an FBI background investigation could be initiated were in order. In addition, the office organized and maintained the background files and reports which were sent to the White House from the FBI. The Director of the Security Office was responsible for the initial review of the FBI background reports for any information which should be brought to the attention of the White House Counsel or his deputy.(53) This position was described by a former White House Counsel as "a largely thankless job, requiring long hours, superb organizational skills, attention to detail, and total discretion."(54)

Beginning in 1972, during the Nixon administration, Jane Dannenhauer was appointed as the Assistant to the Counsel to the President with the responsibility of directing the White House Security Office.(55) Ms. Dannenhauer served in her capacity as Assistant to the Counsel during the Nixon, Ford, Reagan and Bush administrations, as well as the first 2\1/2\ months of the Carter administration.(56) Ms. Dannenhauer reported directly to either the White House Counsel or Deputy White House Counsel, and was the only person in the Security Office authorized to review the FBI background files.(57)

Previous White House Counsels testified to this committee that in each administration in which they served, the background investigation process was limited to a very small number of high level individuals. Those individuals included the White House Counsel to the President, the Deputy White House Counsel and the Assistant to the Counsel for Security. In a small number of instances, aspects of a particular FBI background report would have been discussed with a senior-level staff member on a need to know basis, without sharing the file.(58) "Background files were never shown to others in the White House, including the President, the Vice President, the chief of staff or the director of presidential personnel," according to Richard A. Hauser, Deputy Counsel to President Reagan.(59)

1. White House Security Office practice and procedures

When a new administration takes office it must complete background investigations on all new appointees and employees with White House access. In the past, a new administration began the process during the transition. It is important to complete this process in a timely manner to insure the security of both the President and vast amount of sensitive national security information contained within the White House. This process began with what is called a "name check."(60) To complete a name check an individual's name and Social Security number are sent to the FBI where it is checked against various databases to see if there was any recent potentially illegal activity in the public record.(61)

When the FBI receives the name check request, it disseminates the request to several internal units. These units check four different computer databases and the FBI central indices. The databases provide information on criminal histories, arrest records, outstanding warrants, as well as information on organized crime, terrorism, and foreign counterintelligence.(62) In addition, a name check request requires the FBI to look to see whether a "copy of a previous report" is on file for the individual. An FBI research analyst then reviews the summary memoranda contained in an individual's file to determine which reports to forward to the White House.(63) All of the information is then sent to the White House. In previous administrations, once an individual was cleared through the name check process, he was eligible for temporary access to the White House pending a full field FBI background investigation.(64)

Any individual seeking repeated or permanent access to the White House and all Presidential appointees were required to go through a full field background investigation.(65) The FBI full field background investigations were necessary in order to review the background of individuals at the White House for security reasons and also for the President to make a suitability determination.

To begin this process, the individual is required to fill out a "Standard Form 86," (SF-86) which provides personal data on the individual and authorizes the FBI to conduct the background investigation. As with the FBI background investigations, previous administrations only permitted the Director of the Security Office, the White House Counsel and Deputy White House Counsel to review the SF-86's.(66) In previous administrations, the bulk of the background investigations should normally be processed and reviewed during the first 6 months of the administration.(67)

2. Updating the background files

When an administration leaves the White House it is required to archive all of its papers pursuant to the Presidential Records Act.(68) Among the records required by this act to be archived are the FBI background files of all of the administration's appointees and employees. These FBI files are archived and placed under seal in the Presidential Library for 20 years. When the incoming administration arrives, it must recreate the files for those "holdover" employees who would be continuing their employment at the White House. The task of recreating the files fell to the White House Security Office.

In prior administrations, the Security Office only began the process of recreating the holdover employees' files after all of the paperwork on the new appointments had been completed.(69) The rationale for requesting these files after all the new employee paperwork had been completed was twofold. First, the holdover employees had already been cleared for access by a previous administration.(70) And second, by the time the paperwork had been processed on the new employees, the list of White House employees would be more current. It was necessary to obtain the FBI reports in order to update the background investigations of the holdover employees, who, along with all other White House pass holders, needed an update of their background investigation every 4 years.(71) Every new administration begins with the same information and every new administration has had to recreate the files of the permanent White House employees.

The procedure which each previous administration (72) followed to update its background files essentially consisted of four steps:

(1) the Security Office would obtain from the Secret Service and verify a current list of pass holders with access to the White House complex;

(2) the office would request from the FBI copies of the previous background reports concerning those on the list;

(3) the head of the office would review the prior reports to ascertain the date of the last background check, and to bring any derogatory information to the attention of the White House counsel; and

(4) the Security Office would send a new SF-86 to be completed by employees as they came due for an update investigation.(73)

Although the Security Office would rely on the Secret Service lists for current and accurate information in its lists of individuals that still had access to the White House, it was normal practice to cross reference and double check the lists.(74) It is solely the responsibility of the White House Security Office to inform the Secret Service that an individual should be taken off the access lists and listed as "inactive" to ensure that only present employees remain on the "active" Secret Service lists.(75)

In the first year of a new administration, the Security Office would proceed with its updates on an office by office basis to determine who the holdover employees were that needed to have their files recreated.(76) The Security Office would fill out a standard request form ordering a copy of the previous FBI report of the holdover employee. When the previous report was received in the Security Office, the Director of the office would personally review the file to determine and make a notation of the date when that the individual was due for a background investigation update.(77) That individual's name would then be added to the list, organized on a monthly basis, of individuals coming due for an update of their FBI background report.(78) The Director of the office would also review the file for derogatory information, ultimately sending the report on to the Deputy White House Counsel for adjudication.(79)

Because the Security Office maintained all of the confidential files on every individual with current access to the White House complex, the office was equipped with a separate vault room that was attached to the Security Office. All of the files were kept in the vault which was equipped with cabinets containing 70 rotating bins.(80) The files were stored in the bins alphabetically. The Security Office vault could be accessed only by entering and going through the Security Office. The door to the vault had a lock with a combination which only a few authorized individuals were given. The only other persons with access to the vault were members of the Office of Records Management.(81) This Office uses two of the four file cabinets in the Security Office vault to store its records. Terry Good, the Director of the Office of Records Management testified that his office stores materials from the White House office that "ranges from items that are considered confidential through security classified materials."(82) During the Clinton administration, Records Management also stored White House Counsel's Office files on all individuals being considered for appointments throughout the government.(83) Although the Office of Records Management file cabinets have separate locks, Good testified that they are often left unlocked during the day.(84)

3. The transition from the Bush administration to the Clinton administration

Since the end of the Nixon administration, Jane Dannenhauer briefed the attorneys in each new administration on what the Security office was and what it did. As she had done with past administrations, Dannenhauer met with several of the attorneys from the Clinton White House Counsel's Office before she left her position at the White House in March 1993.(85) She initially met with four or five of the attorneys, none of whom would be supervising the Security Office.(86) Dannenhauer then met with Craig Livingstone, who would ultimately become the new Director of the Security Office.(87) Ms. Dannenhauer testified that Livingstone appeared only to work there "part-time" while she was there. Mr. Livingstone "would come in and maybe be there a half a day."(88) Several weeks after the administration took office, Bill Kennedy, the Assistant White House Counsel who would be supervising the office, finally met with Ms. Dannenhauer.(89)

Ms. Dannenhauer's assistant since 1981, Nancy Gemmell, stayed on in the White House Security Office for 7 months into the new administration.(90) Although the office still was not entirely staffed at the time she left, Gemmell assisted in training the new employees in the procedures of the office.(91) She testified that she explained the Secret Service lists to the people working in the office and informed them that the initial list received from the Secret Service had to be updated.(92) Ms. Gemmell testified that an updated list needed to be ordered from the Secret Service once personnel decisions were made, especially in offices where there would be a high turn-over.(93) The Clinton administration kept Gemmell on until she retired on August 13, 1993.

B. Clinton administration Personnel and Operation of the Office

1. Who hired Craig Livingstone?

Craig Livingstone, the new Director of the White House Security Office quickly came to the forefront of the investigation of the unauthorized requests of FBI background files. Although the office was supposed to maintain primarily the same functions as in previous administrations, the Clinton administration changed the name from the White House Security Office to the Office of Personnel Security (OPS) after Livingstone took over in early February 1993. Livingstone remained in this position until he resigned, announced at the committee's June 26, 1996 hearing.

Mr. Livingstone enjoyed a particularly long tenure, outlasting three White House Counsels and numerous supervisors.(94) However, nobody in the Clinton administration has taken responsibility for bringing Craig Livingstone into the White House. Livingstone himself cannot remember who hired him for the position of Director of OPS. He explained that he had been around during the campaign as an advance man, as well as assisting at the 1992 Democratic National Convention, "coordinating security" for the Democratic Finance Committee's VIP operations.(95)

David Craig Livingstone began his political career in 1984 working as an advance man on the Gary Hart for President and the Mondale/Ferraro campaigns. Mr. Livingstone was responsible for "organizing large crowd events' according to his resume.(96) Mr. Livingstone testified that he then spent the next few years "work[ing] in a bar and restaurant, work[ing] on small campaigns, Democratic initiatives."(97) However, his resume states that during this period he was an advance man for the Reagan/Gorbachev Summit Meeting in Geneva, Switzerland where he was responsible for arranging international press appearances for Presidents Reagan and Gorbachev. He also claims to have secured a 55 minute meeting between U.S. citizens and the General Secretary.

Mr. Livingstone also worked for Senator Timothy E. Wirth. In his resume, he states that he coordinated Senator Wirth's transition from the House of Representatives to the U.S. Senate. Although it is absent from his resume, Mr. Livingstone worked for the Hollywood Women's Political Committee "doing their Washington work."(98)

Craig Livingstone's first encounter with Al Gore was in 1988, when he served as his trip director traveling "daily" with Mr. Gore and claims to have produced Mr. Gore's 1988 Presidential announcement. Mr. Livingstone also failed to mention in his deposition or on his resume that he worked on the 1988 Dukakis for President campaign.(99) Livingstone also worked as the operations director for the Democratic National Committee Convention staff in 1988 in Atlanta, GA where he coordinated operations for DNC Chairman Paul Kirk. He returned to working at bars and restaurants during the interim and "coordinated screenings" for the highly controversial movie "The Last Temptation of Christ" in 1988. He also worked at a public relations company where he claims that he "prepared clients for legislative appearances."(100)

Mr. Livingstone worked for Washington, DC Councilwoman Charlene Drew Jarvis for approximately 1 year before he began his first employment with the Clinton campaign doing advance work.(101) From October 1991 to November 1992, Mr. Livingstone, according to his resume, was the "Senior Consultant to Counter-Event Operations" for Clinton/Gore '92. Mr. Livingstone claims to have "successfully deployed several of the infamous "Pinocchio" and "Chicken George" media events.(102) Mr. Livingstone also claims credit for "Special Operations and Advance" for then-Governor Clinton's successful primary and general election as well as assisting in the "creation and execution of mission objectives of the Clinton for President, Washington, D.C. local headquarters."(103)

In between Bill Clinton winning the primary but before the general election, Craig Livingstone went to "Africa to work training some soldiers, Democratic campaign techniques."(104) After returning from the Angola training grounds, Livingstone worked with the "VIP financial staff " on fundraising projects for President-elect Clinton and Vice-President-elect Gore. By November 1992, Livingstone was the lead and site lead advance person for the Clinton/Gore '92 campaign.

After the election, Livingstone was the director of security for the Presidential Inaugural Committee (PIC). He states that he had "responsibility for security at inaugural headquarters and all events."(105) In his deposition, Livingstone explained that his duties as director of security at PIC were to ensure that events were handled with the safety of the attendees in mind as well as producing the event in the manner that the Clintons would want it done.(106) On his resume, he wrote that the "Mission statement" of his job, was to "[p]rotect the integrity of the Office of the President."(107) He also stated that he was responsible for securing the PIC computer network against fraud and theft.(108) According to theft reports by the Federal Protective Service, more than $174,000 worth of the Inaugural Committee's computers, VCR's, radios, cellular phones, pagers and other electronic gear disappeared from the committee headquarters.

After the Inauguration, Livingstone sought to obtain a position at the Clinton White House. Mr. Livingstone testified that he was asked to assist with the advance for President Clinton's first Cabinet meeting at Camp David.(109) Mr. Livingstone worked on advance for the Cabinet meeting from January 25 through 30, 1993.(110) While organizing advance for the Cabinet meeting, Livingstone worked with Christine Varney, President Clinton's new Cabinet Secretary. Ms. Varney testified that she knew Livingstone prior to the Clinton campaign, "he was generally known as one of the guys around town who did advance for Democratic party stuff."(111) Ms. Varney could not recall whether Livingstone mentioned the job in the Security Office to her or whether she mentioned it to him.(112) Ms. Varney did state that although she was unclear on whether she told Livingstone about the position, she believes it unlikely that she approached Livingstone about the position because she would not have known about it at that time.(113)

According to Associate White House Counsel Cheryl Mills, at the end of January or beginning of February, Deputy Counsel Vince Foster told Mills that he was planning on speaking with Livingstone about one of the lower-level administrative positions in the Security Office.(114) Mr. Foster also spoke with Varney about the position for Livingstone. He described the work to Varney as, "an administrative paper-pushing kind of job, [for] someone who knew most of the new Clinton employees, to sit on them to make sure they got their paperwork done."(115) Based on Foster's description, Varney told Foster that Craig Livingstone would be appropriate for a position with that level of responsibility.(116)

Mr. Foster and Cheryl Mills eventually interviewed Livingstone for what Mills described as the "most junior position" in the Security Office.(117) She explained the position to Livingstone as administrative, primarily collecting and sending out forms. She also indicated to him that whoever was hired to fill Jane Dannenhauer's position as Assistant to the Counsel, would make the ultimate decision on whether to hire Livingstone.(118) According to Ms. Mills, Livingstone indicated to both Foster and Mills that he viewed the job as a temporary position, as he was interested in a position as Director of the Military Office.(119) Although many have suggested a role for Vince Foster in hiring Craig Livingstone, Mr. Livingstone failed to recall any contact whatsoever with Mr. Foster when he testified under oath in his deposition.(120) The Security Office position for which Livingstone interviewed with Foster and Mills was relatively low-paying and not as challenging a position as Livingstone wanted.(121)

According to White House records, Livingstone began working in the Security Office on February 8, 1993.(122) On that date, he wrote a memo to Cheryl Mills reviewing the duties and personnel in the Security Office.(123) Mr. Livingstone states in the memo that he "reviewed the White House Security Office as requested."(124) He stated that Jane Dannenhauer and Nancy Gemmell would be staying on for a short period of time and reporting to Livingstone. He also explained that he would be meeting with the IRS and FBI for briefings on their respective roles in the background process. Mr. Livingstone attached a proposed memo to Jane Dannenhauer to go out under the name of the Deputy Assistant to the President and Deputy Counsel directing Dannenhauer to notify her staff that effective February 8, 1993 Craig Livingstone would serve as the Director of the White House Security Office with Dannenhauer serving as his "advisor" until March 1, 1993, "whereupon, it is expected she will submit her resignation."(125)

According to Cheryl Mills' testimony, Livingstone was to be an assistant in the office and a more senior person was to be hired to replace Jane Dannenhauer. When asked whether she recalls learning that Livingstone had become the Director of the office, she testified: "I actually don't ever recall learning that fact, but I am sure there became a point in time later on in the year when it must just have been self-evident. But I don't recall learning that fact."(126) In contrast, the February 8, 1993 memo, with her handwritten notes in the margin, clearly and explicitly shows that Livingstone himself informed her that he was the Director of the Security Office. Associate Counsel William Kennedy, who eventually was assigned the responsibility of oversight of the Security office, was not hired until February 10, 1993, 2 days after the memo was written.(127)

Livingstone testified in his first committee deposition that Christine Varney introduced him to people in the Counsel's Office, one of whom was Cheryl Mills.(128) Mr. Livingstone stated that he had a brief discussion with Mills about the position in the Security Office, which she described as largely administrative.(129) Ms. Mills explained to him that she would not be overseeing the office, however someone would soon be appointed. Shortly thereafter, William Kennedy was appointed as Assistant Counsel to the President and took control of oversight of the Security Office.(130)

Former White House Counsel Bernard Nussbaum recalled yet another version of the hiring of Craig Livingstone. He stated, "at the time I arrived in the White House on January 20, 1993, or shortly thereafter, Craig Livingstone was acting already in the Office of Personnel Security. That's when Mr. Foster and I arrived . . . . [h]e was in the White House, I believe, when I got there."(131) Former Assistant Counsel to the President Kennedy testified that Livingstone was already working in the Security Office.

I arrived the first week in February and went on the payroll on February the 10th, I believe. When I arrived, Craig was acting as Acting Director of the Office of White House Personnel Security. I was informed by Mr. Foster that was the position he was under consideration for. I don't know who told Mr. Foster that or on what basis.(132)

Mr. Livingstone himself stated that he was working in the office when Kennedy arrived at the White House. Mr. Livingstone was not on payroll at the time, and stated that he still considered himself an "advance person."(133) Mr. Livingstone did not go on the payroll for several weeks. According to Kennedy's testimony, Livingstone had a probationary period while waiting for his FBI background investigation to be completed.(134) His FBI background investigation was initiated on February 18, 1993 and completed on March 13, 1993.(135)

In the course of Livingstone's background investigation FBI Agent Dennis Sculimbrene conducted interviews on March 1-3, 1993, of Livingstone's supervisors at the White House, including Bernard Nussbaum and Bill Kennedy. Agent Sculimbrene took contemporaneous notes of the meeting where Nussbaum mentioned that although he had only known Livingstone for the period of time since he had been employed in the new Clinton administration, he understood that Craig Livingstone "had come highly recommended to him by HILLARY CLINTON."(136) Mr. Nussbaum added that Mrs. Clinton "has known his mother for a longer period of time." Mr. Kennedy told Agent Sculimbrene that "he did not hire" Craig Livingstone and was aware that Livingstone "may not stay in his current position."(137)

Another FBI agent who was assigned to the White House, Gary Aldrich, recalled a conversation with Assistant Counsel and Rose Law Firm partner Bill Kennedy. Mr. Kennedy asked the agent what type of person should be in the position of Director of the Security Office. Agent Aldrich answered that it should be "somebody squeaky clean, meticulous, careful, discreet, mature, someone with a depth of understanding of security issues."(138) Mr. Kennedy later told Agent Aldrich: "it doesn't matter anyway; it's a done deal. Hillary wants him [Livingstone] for that slot."(139) Both Agent Sculimbrene and Aldrich testified that Kennedy told them that he had to hire Craig Livingstone.

Mrs. Clinton publicly denied hiring or even knowing who Craig Livingstone was until this year. In response to questions by reporters during her trip in Helsinki on July 10, 1996, Mrs. Clinton said, "I did not know him. I did not have anything to do with his being hired, and I do not remember even meeting him until sometime in the last year." In contrast, an intern working in the White House Office of Personnel Security informed this committee of an encounter with Mrs. Clinton that puts her denials of knowing Craig Livingstone in question.

White House intern, Gina Gibson, said that she was being shown around the White House when she saw Mrs. Clinton approaching from down the hall. Ms. Gibson said that as Mrs. Clinton passed she said "Hello Craig" and kept on walking.(140) Ms. Gibson interned at the White House from May 1994 through July 1994, well before the time period Mrs. Clinton said she first knew who Craig Livingstone was.

Craig Livingstone participated in numerous other activities within the White House where contact with President Clinton and Mrs. Clinton would have been likely. Craig Livingstone was sent to Little Rock, AR, January 1-6, 1994, to handle arrangements for President Clinton's mother's funeral.(141) Included in the numerous other advance trips that Livingstone participated in was the October 22, 1993, Boston trip on which he was on advance for President Clinton,(142) the April 21-25, 1994 advance trip to Boston for President Clinton, or when he was the site lead for President Clinton's May-June 1994 European trip.(143) These are just a few of the advance trips which Livingstone likely would have had contact with the President or Mrs. Clinton.

In May 1994, Livingstone wrote a memo to David Watkins requesting that he be provided with a cellular telephone since his "duties now require that [he] be on call during the weekends to assist the President in whatever manner necessary." If President Clinton did not know Livingstone personally, why did Livingstone need to be on call for him on weekends? What did Livingstone believe his duties entailed in order to "assist" the President?

Three days before the White House received Livingstone's background investigation, Kennedy sent a March 10, 1993 memo to David Watkins, Assistant to the President for Management and Administration, requesting that the effective employment date for Livingstone be established as February 8, 1993.(144) When Craig Livingstone's March 1993 FBI background information was finally given to the Secret Service in the fall of 1993, the Service raised concerns with Kennedy about derogatory information in Livingstone's background.(145)

Secret Service Agent Arnie Cole recalled that he was not aware that Livingstone would be taking over the position until the end of February 1993.(146) The Secret Service had stressed to the Clinton transition team how important the position of Director of the Security Office was in getting all the new people in and making sure everyone had a pass. Mr. Livingstone himself did not have his permanent White House pass until November 23, 1993. The FBI forwarded all of the results of Livingstone's background investigation to Nussbaum on March 16, 1993 and the file was not forwarded to the Secret Service for adjudication until September 20, 1993. Agent Cole testified that he raised questions about "derogatory information" in Livingstone's background with Kennedy.(147) Agent Cole further testified that he raised concerns about Livingstone with his superior at the Secret Service and "asked Mr. Kennedy if he concurred with my concerns one way or the other, and he did not, and ultimately Mr. Livingstone received his White House pass."(148) Another 2 months passed before Livingstone's permanent pass was finally approved on November 23, 1993.

Questions still remain as to how Livingstone was actually hired as the Director of the White House Security Office. Cheryl Mills states that he was to be an assistant in the office, yet she receives a February 8, 1993 memo where he clearly assumes the role of the Director. Messrs. Kennedy and Nussbaum both state that Livingstone was already in the office when they arrived, but neither of them questioned his background or qualifications for the position. Mr. Kennedy himself stated in a memo to Counsel to the President Bernard Nussbaum that Livingstone probably would not be in the position for long, as he was hoping to get the position as Director of the Military Office.(149)

Finally, neither Kennedy nor Nussbaum mentioned that Mrs. Clinton had either recommended Livingstone or directed that he be placed in the "slot" of Director of the Security Office. In fact, both denied that Mrs. Clinton had anything to do with the hiring of Craig Livingstone. It remains a mystery how he came to the attention of former Rose Law Firm partner, then Deputy White House Counsel Vince Foster. What we do know is that both the FBI and the Secret Service voiced their concerns about hiring Craig Livingstone to head the White House Security Office. Despite these concerns and the fact that Kennedy knew that he did not even want the position, Livingstone was given absolute control.

2. Craig Livingstone's quest for the Military Office

It was no secret that Livingstone wanted the position of Director of the Military Office. In a February 22, 1993 memo from Bill Kennedy to Bernard Nussbaum and Vince Foster, Kennedy addressed hiring Livingstone as the Director of the Office of Personnel Security. Mr. Kennedy wrote:

[Craig Livingstone] is willing to accept the job at a salary of $45,000, although reserving the right to look for something better, such as becoming the Director of White House Military Affairs for which he is apparently being considered. That position apparently would not open until sometime in June, 1993, if at all. There is probably a good chance this office will lose Mr. Livingstone.(150)

After Foster interviewed him for the "junior position" in the Security Office, Mills told the committee that she asked Foster why Livingstone would not be appropriate as the Director of the Military Office. According to Mills, Foster explained why it would be unreasonable for Livingstone to be in that position. He told her that it was usually a person with a long term history in the military and a relatively senior retired officer.(151)

Mr. Livingstone approached numerous people about his desire to become Director of the Military Office. He spoke to Bruce Lindsey,(152) George Stephanopoulos,(153) Bill Kennedy,(154) Gary Aldrich, Chuck Easley,(155) Harry Thomason,(156) George Saunders,(157) Arnie Cole,(158) Dennis Sculimbrene,(159) Vince Foster (160) and Cheryl Mills (161) among others.

Mr. Thomason testified that "for some reason, all the employees of the White House thought if they needed to unload things or tell things, that they could see me."(162) Although Thomason testified that he remembered Craig Livingstone met with him, he was unable to recall the context of his notes of that meeting where he wrote: "Control of military office and SS [Secret Service] could very well derail future efforts."(163) FBI Agent Gary Aldrich testified that he too had a conversation with Livingstone about the Military Office position:

He told me that his goal in the White House was to become head of the [M]ilitary Office and that he felt that the Chief of Staff, Mack McLarty, was not supporting him enough in his quest to do that. And he often spoke of arguments he said he had with the Chief of Staff and others relative to his seeking this promotion.(164)

On May 27, 1994, Livingstone wrote a note to George Stephanopoulos thanking him for offering to be of assistance in his efforts "to further serve the President as Director of the White House Military Office."(165) Mr. Livingstone listed four points which he believed should be considered in his quest for the office. The last of the four points, that "the job, by nature, should have someone with sound political skills_particularly as we approach N.H. [New Hampshire]," is most revealing of Livingstone's lack of understanding that all jobs in the White House are not political.(166)

The Military Office is responsible for all of the military operations as they relate to the White House. White House communications, military aides, and the President's doctor all come under the supervision of the Military Office. The use of Air Force One, the helicopter as well as any other transportations of the President are under the control of this office. In essence, every military asset in the White House is run by the White House Military Office, an office for which a man of Craig Livingstone's background was not suited.

3. Livingstone's duties as Director of the White House Office of Personnel Security

After Livingstone became the Director of the Security Office, he requested that the name be changed to the Office of Personnel Security (OPS).(167) Although the Clinton administration changed the name of the office, it was supposed to perform essentially the same duties as it had in prior administrations. In a 1994 memo to Jodie Torkelson, Assistant to the President for Management and Administration, Livingstone described his duties as Director of OPS:

process security papers for Presidential appointees and White House staff; handle daily contact with the FBI;

maintain frequent contact with attorneys on an individual case basis;

work with the Secret Service in processing applicants for access and White House passes; sit on numerous committees with the Secret Service;

act as a liaison between Secret Service and staff;

maintain clearance processes for White House Intern/Volunteer programs; initiate memoranda to the attorneys;

initiate and maintain Security Interview process for both staff applicants and intern/volunteers;

act as principal liaison with all government-wide department/agency security officers in assisting in their clearance processes, and;

process compartmentalized clearances for staff.(168)

But in contrast to Jane Dannenhauer, his predecessor, Livingstone was involved in more than simply running the Security Office. Although Livingstone described one of his primary duties in 1993 as reviewing FBI background files,(169) he continued to do advance work for President Clinton even after taking over the position as Director of the Security Office.

Mr. Livingstone would often participate in Presidential and First Lady advance trips, traveling ahead of the President or First Lady to set up and handle logistics.(170) In fact, Livingstone stated, "we [White House appointees] are asked to do advance from time to time, and it's something that I have done. I would consider that part of my job."(171)

Mr. Livingstone also told FBI Agent Gary Aldrich that he was the Clinton administration's liaison to the FBI and spoke often with the Director of the FBI, Louis Freeh.(172) The committee received a copy of a letter from FBI Director Louis Freeh to Livingstone that appears to confirm this fact. In the letter, Director Freeh said that "the President and the American people are indeed fortunate to have your dedication and service." After thanking Livingstone and "Stephanie" for their help with Director Freeh's sons, he said that "we look forward to seeing both of you soon. Don't forget to visit us at the FBI." It was signed "Very truly yours, Louie."(173)

Mr. Livingstone altered the historical duties of the office in other ways as well. In a memo to Counsel to the President Abner Mikva requesting a raise, Livingstone wrote, "I strongly believe that my level of work reviewing IRS records, adjudicating FBI backgrounds, conducting intake security interviews and developing corrective plans of action for individuals with problems that can be made right."(174) The memo did not describe what kind of plans of action or problems would be involved in this newly developed duty. In addition, as individuals left the White House for other positions, they would be "debriefed" by Livingstone as part of his duties.(175)

In a September 22, 1993 memo Livingstone requested a permanent radio and cell phone stating, "this request is necessary due to the nature of my duties as Director of White House Security."(176) He did not enumerate what those duties were which required him to have a radio and cell phone. As discussed above, the next year, in May 1994, he again requested a White House issued cell phone to be "on call" during the weekend "to assist the President in whatever manner necessary."(177) As in the previous memorandum, he did not describe what his duties were or what assistance the President needed from him on weekends. Livingstone was also attempting to expand his role in White House security and was planning a "security committee."(178)

Former White House Counsel C. Boyden Gray made clear that substantive judgments on the background investigations were reserved exclusively to the White House Counsel and Deputy Counsel.(179) The responsibility for the adjudication was kept at the highest levels of the Counsel's Office not only to ensure immediate access to the President with any problems, but also to ensure the confidentiality of the files.

In the Clinton administration, the responsibility was given to an associate counsel, William Kennedy, who in turn passed along the responsibility to Craig Livingstone, who in turn passed it along to his staff which consisted of interns and young individuals in their first job.(180) The confidentiality of all of the FBI background files was jeopardized once the Counsel to the President, Bernard Nussbaum, denounced any responsibility for this unpleasant yet necessary work. The FBI background investigations are conducted for the White House in order to protect the country in connection with potential security breaches, as well as to protect the President politically and physically. Not only did Livingstone shift his responsibility to review background investigations to lower level staff but he also was looking for creative ways for Clinton appointees to get around problems in their backgrounds, ignoring the purpose of the investigation.

Mr. Livingstone's explanations of his duties in the White House raise questions as to whether he was authorized to undertake these tasks, and if so, by whom. It is clear on more than one occasion that his superiors were aware of what he was doing, as he outlined these additional duties in his memos to them. Mr. Livingstone's predecessor worked long hours in her position as Director of the Security Office. She did not have time to do political advance work or to expand the mandate of her office.

What is important to note is that there was never a backlog of passes, never any security concerns raised by the Secret Service, and certainly never any unauthorized requests sent to the FBI during the tenures Livingstone's predecessors. There seemed to be little or no supervision of Livingstone and the activities he was pursuing. The Clinton administration put someone in this sensitive office with no experience and who clearly was unsuitable as recognized by both the FBI and the Secret Service. Not only did the White House ignore the importance of the suitability issue but after placing an unsuitable person in this position, the responsible parties, the White House Counsels, abdicated supervisory responsibility. It is not surprising then that problems would arise.

4. Livingstone's salary requests

Mr. Livingstone was hired as the Director of the Personnel Security Office at a salary of $45,000 in February 1993. In a May 10, 1993 memo to Associate Counsel to the President Bill Kennedy, Livingstone requested a salary increase of $5,000.(181) On October 20, 1993, Livingstone did receive an increase to $51,000 which was approved by Bernard Nussbaum.(182)

Between May and August 1994, three Counsel's Office attorneys wrote letters on behalf of Livingstone requesting an increase in his salary. The Assistant to the President for Management and Administration, David Watkins, wrote a memo to Associate Counsel Beth Nolan in May 1994 noting that it had come to his attention that she had requested a salary increase for Livingstone.(183) Mr. Watkins explained that a salary freeze was in effect for all salary adjustment actions.(184) Nevertheless, Nolan's colleague, Associate Counsel Chris Cerf, wrote a memo to Deputy Chief of Staff Phil Lader on July 1, 1994 requesting a raise for Craig Livingstone.(185) Mr. Cerf wrote, "[i]t would be an overwhelming setback if Craig's frustration over his salary contributed to a decision to seek employment elsewhere. I consider this to be a significant risk that we should be doing everything in our power to minimize."(186)

In a third attempt to get Livingstone a raise, both Beth Nolan and Deputy Counsel to the President Joel Klein joined in a memo to Deputy Chief of Staff Phil Lader.(187) In the memo they acknowledged that there was a general freeze on salaries but argued that an exception should be made for Livingstone, asking that he be given an immediate raise to $60,000.(188) They cited his extraordinary effort to clear up a backlog of White House passes, one of Livingstone's duties as Director of Personnel Security.

Mr. Livingstone did receive a salary increase on January 8, 1995 to $57,500, which was approved by White House Counsel Abner Mikva.(189) Nine months later Livingstone received yet another salary increase to $63,750.(190) Before receiving that final increase Livingstone had written two memos to Counsel to the President Abner Mikva. The first memorandum, dated May 30, 1995, states, "I have done my best to be a good soldier," and requests a salary increase to $65,000.(191) The second memorandum, dated August 28, 1995, takes on a much stronger and almost threatening tone.

It would be wrong not to approve my request. Not just because I was promised but because I have demonstrated that I deserve it. I apologize for my tone but this is my last try to remain part of the team.(192)

In this second request, his salary demand increased to $70,000.(193)

Mr. Livingstone's final request for a raise came on May 14, 1996, just 5 days after the committee held the White House in contempt for the failure to turn over subpoenaed documents. Among the documents that had been withheld was the White House request for Billy Dale's FBI background file. The Assistant to the President for Management and Administration, Jodie Torkelson, wrote a memo requesting information on Livingstone's salary history and any notes or paperwork on what he may have been promised. Ms. Torkelson states in the memo, "Livingstone's at it again. He's submitted paperwork for signature giving himself a raise and saying that he was promised the money by Abner [Mikva]. . . . I'd like to kill this before I leave."(194)

Craig Livingstone claimed that two White House Counsels, Bernard Nussbaum and Abner Mikva, promised him that he would get a raise to $70,000. He wrote memos directly to Counsel to the President Mikva stating that he deserves a raise because he had been a "good soldier" and "weathered the office through a few storms." How was Livingstone able to secure a 40 percent salary increase in only 3 years? His salary rose rapidly from $45,000 to $63,750. Although Livingstone complained that his predecessor made over $60,000, he did not acknowledge that she had over 20 years of experience as Director of the Security Office. Mr. Livingstone had no background, education or experience in the area, yet he was given significant salary increases. His office was responsible for the backlog in passes yet he claimed credit and demanded rewards for clearing up that same backlog.

His persistent demands for salary increases and ability to rally the Counsel's Office behind him raise even more questions about who Craig Livingstone really is. Although most people in the White House would now deny knowing him or at best admit that they may have seen him around, Livingstone was able to garner support for his cause when necessary.

5. Livingstone brings on new staff

The White House Security Office began using interns for the first time in its history after Livingstone came on as Director. Mr. Livingstone's Executive Assistant, Lisa Wetzl, began as an intern in OPS in June 1993 after graduating from college in May of the same year.(195) Other assistants in the office started as interns before moving up to staff positions. Ed Hughes began as an intern in February 1994 after graduating from college in June 1993.(196) Jonathan Denbo, an assistant in the office, was an intern in the office in the summer of 1994 and was hired in September after he graduated from college in May 1995.(197) The staff in the office was generally very young and inexperienced. Nevertheless, all of the staff were granted top secret clearance by the White House and compartmentalized clearances from the CIA.

During 1993 and early 1994 the Office of Personnel Security had an extensive backlog in paperwork. White House appointees were not completing their paperwork and those that were completed were not being sent to the FBI. By April 1993, Livingstone was attempting to get his friend and political ally, Anthony Marceca, detailed to the office to assist with the backlog.

III. Detail of Anthony Marceca to the White House

A. Introduction

Anthony Marceca is one of the central figures in the investigation of the FBI files matter. The White House claims that he was the individual responsible for ordering hundreds of files on former Reagan and Bush administration officials. First described as a "low-level clerk," the White House refused to release Marceca's name to the committee for several days. However, the committee soon learned through press accounts that the so-called low-level clerk was a White House detailee employed as a civilian investigator in the Army Criminal Investigative Division (CID). President Clinton's deputy campaign manager, Ann Lewis, claimed Marceca was a "non-political staffer."(198) Anthony Marceca is a longtime political colleague of Craig Livingstone. The two worked on advance for numerous campaigns since the Hart campaign in 1984.

Mr. Marceca was detailed to the White House Office of Personnel Security in August 1993 at the request of Associate White House Counsel William H. Kennedy. Mr. Kennedy wrote two letters directly to Secretary of Defense Les Aspin regarding Marceca's detail.(199) Kennedy, in one letter, stated that he had "learned of Agent Marceca's unique investigative abilities and background and would greatly appreciate his full-time assistance here."(200)

Once ensconced in the office, Marceca attempted to use the position as a springboard to a Presidential appointment. He was interviewing for positions as a U.S. Marshal as well as Inspector General positions at several different agencies.(201) His plans came to a halt when the White House received his FBI background file and informed him that there were problems in his background which would prevent his detail from being renewed and prevent him from receiving a Presidential appointment.(202)

Mr. Marceca continued working in the Office of Personnel Security until his original 6-month detail ended in February 1994. Although he received a hard pass and had full access to the White House, his background investigation was not completed until December 1993 and he was never cleared by the Secret Service for a permanent pass. Along the way, his daughter also joined the White House, apparently assisting in the Office of Presidential Personnel.(203) His son, Nathan, obtained a White House job as a "gift analyst" in the winter of 1995.(204)

After leaving the White House, Marceca remained in contact with both Livingstone and the White House. He volunteered to answer phone calls from the "comments line" following the President's addresses to the Nation. Mr. Marceca retained a White House volunteer pass until May 1995 and remained on a volunteer access list until June 21, 1996, several weeks after the discovery of the FBI files and Marceca's role became known.(205) According to phones message he left for Livingstone, Marceca also appears to have worked on several Presidential and Cabinet level advance trips between 1994 and 1996.(206)

Anthony Marceca is far from the low-level clerk the White House has claimed. He and Craig Livingstone worked together as a political "team" since 1984 and continued their partnership up to the present. Given the backgrounds of both Livingstone and Marceca, it is astonishing that the Clinton administration would put these two individuals in the sensitive office of Personnel Security with access to the FBI file of any person who has ever had a background investigation.

B. Marceca Parlays His Political Background with Craig Livingstone into a White House Position

Anthony Marceca testified that he met Craig Livingstone while they were both doing advance work for the Gary Hart campaign in 1984.(207) The two had become friends and discovered that they worked well together.(208) Messrs. Livingstone and Marceca formed an "advance team" where Livingstone would handle the public relations end of the advance work and Marceca would handle the logistics end.(209) Dennis Casey, a political consultant from Pennsylvania, who worked for the Hart campaign in 1984, remembered Livingstone and Marceca.(210) Casey testified that, during a campaign meeting, Livingstone was present and reported on "peccadilloes and vulnerabilities of labor leaders and prominent public officials in hopes of neutralizing them or getting their support switched from Mondale to Hart."(211) Mr. Casey testified that he informed Livingstone that he felt the gathering of such information could hurt the campaign and directed him to stop that type of work.(212) Mr. Livingstone disagreed with Casey and angrily left the room.(213)

Mr. Casey recalled that he met Marceca at that time as well. Mr. Marceca spoke with Casey about the information Livingstone gathered and told Casey that it was time to "play hardball with the dirt Mr. Livingstone had gathered."(214) After an incident in which Marceca took $200 from the campaign petty cash, Casey called the Washington campaign office of Gary Hart and notified the office that Marceca should not be allowed back.(215)

The team of Livingstone and Marceca worked on several other campaigns. After the Hart campaign in 1984, they both moved on to the Mondale campaign. Mr. Marceca stated that the management of the Mondale campaign knew both him and Livingstone and kept them together as a team.(216) In 1986 the two were asked to work advance for the Hart for President announcement in Colorado.(217) Both Marceca and Livingstone accepted the invitation and worked on advance with the campaign until Hart dropped out of the race.(218) In 1987, Livingstone asked Marceca to work with him on Al Gore's announcement.(219) Mr. Marceca agreed and worked several advance trips with Livingstone for the Gore Campaign.(220)

Mr. Livingstone contacted Marceca on election night in 1992. Now that Clinton had won the election, Livingstone was attempting to get the position of Director of Security for the Presidential Inaugural Committee (PIC).(221) Mr. Livingstone contacted Marceca approximately 1 week later and asked him to stop by the Old Navy Yard, which was PIC Headquarters. When Marceca arrived at the Navy Yard, Livingstone told him that he had gotten the job as Director of Security for PIC and asked Marceca to work at PIC as the Security Coordinator.(222) Mr. Marceca accepted the offer and took the position on a volunteer basis, taking time off from his Army CID position. According to Marceca, he worked directly under Livingstone planning the security aspect of access to Inaugural events.(223) Mr. Marceca spent the day of the Inaugural in the "command post," the Navy building, "coordinating movements."(224) After the Inauguration was over, Marceca went back to his job at Army CID.

Craig Livingstone did not have such a clear recall of his work with Anthony Marceca. Although Livingstone stated that he did meet Marceca in 1984 while working advance on the Hart campaign, his recollection was that he worked with Marceca only "on occasion."(225) When asked in a deposition whether he knew of any other campaigns Marceca worked on, Livingstone stated that he knew that Marceca had worked on the Hill and he had a "vague recollection" that Marceca may have assisted at the Inaugural.(226) There is a direct conflict between Livingstone and Marceca's testimony. Clearly, Marceca testified that Livingstone asked Marceca to work with him on PIC, yet he has no recollection of it. The two worked closely together. Marceca explained that he worked at PIC for at least 40 days up to and including the day of the Inaugural.(227)

1. Marceca's quest for a detail to the White House

Livingstone took a position with the White House Office of Personnel Security on February 8, 1993. Sometime after Livingstone began working at the White House, Marceca contacted Livingstone to inquire about the possibility of a detail to the National Security Council at the White House.(228) Mr. Livingstone checked on the National Security Council detail and reported back to Marceca that he did not think it was possible.(229) According to Marceca, Livingstone explained that there was a possibility of an opening for a clerical type position in his office, OPS.(230) In March 1993, Livingstone contacted Marceca and told Marceca that he had gotten permission to bring in someone to assist in the office. He described the position as a clerical-type position, "going over people's background reports and making files and collating information, and it . . . did not involve investigations."(231) Livingstone asked Marceca to send him a resume at that time. In a deposition before the committee, Livingstone recalled that Marceca had told Livingstone that he wanted to work at the White House. Messrs. Livingstone and Marceca discussed general ways that Marceca might be available to assist the Office of Personnel Security.(232)

2. The White House requests Marceca

Mr. Livingstone presented the idea of Marceca's detail to Associate White House Counsel William Kennedy.(233) Mr. Marceca had interviews scheduled with Kennedy on March 18 and 24, 1993.(234) After interviewing Marceca, Kennedy wrote to Secretary of Defense Les Aspin on April 5, 1993 to request the detailing of Anthony Marceca. The detail was to be on a non-reimbursable basis, to OPS, beginning on April 12, 1993.(235) Mr. Kennedy stated in the letter, "I have learned of Agent Marceca's unique investigative abilities and background and would greatly appreciate his full-time assistance here."(236) The following day Kennedy received a reply from David C. Allen, the Director of Marceca's unit at the Army CID.(237) Mr. Allen recommended Marceca for the detail, stating, "Mr. Marceca is always the master of every situation," and "[he] is a sound and logical thinker, capable of handling any number of critical and sensitive missions at one time."(238) In his letter to Kennedy, Allen warned Kennedy not to be dissuaded if the military leadership of CID objected to the detail of Anthony Marceca. He further stated his readiness "to discuss, in great detail, the high regard I have for Mr. Marceca both professionally and personally."(239) On the same day, April 6, 1993, Kennedy called Marceca.(240)

The letter which was sent to Secretary of Defense Les Aspin on April 5, 1993 requesting the detail of Marceca was then re-sent on April 13, 1993. The text of the letter is the same, however the date had been changed.(241) The next correspondence in the attempt to get Marceca detailed was on June 22, 1993. In that letter Kennedy wrote to Colonel Michael Sheffield, Executive Secretary to the Secretary of Defense.(242) In this letter he states that Craig Livingstone had requested that Special Agent Marceca be detailed to the Office of Personnel Security (OPS).(243) Mr. Kennedy also notes that Marceca's experience in reviewing and screening potential candidates would be invaluable to OPS in completing its ongoing review of military personnel assigned to the White House, as well as providing personnel services related to security for the staff of the Executive Office of the President.(244)

Mr. Marceca's detail was ultimately approved on August 5, 1993, by Deputy Assistant Secretary of Defense, Lieutenant General Robert M. Alexander in a memorandum to William Kennedy.(245) On August 9, 1993 Marceca went to the White House and received his hard pass giving him access to the White House, although he did not begin his detail at the White House until August 18, 1993.(246)

3. Marceca has access to the White House before his detail

According to White House records, Marceca was placed on "access lists" by Livingstone beginning as early as March 24, 1993.(247) White House Access lists allow an individual to enter the White House without appointment for the period of time that they are on the list.(248) Individuals who enter via an access list, simply check in at any entry post, produce positive identification and are granted a pass to enter the complex.(249) Mr. Marceca was placed on access lists by Craig Livingstone and granted continuous access to the White House complex from March 24 through July 31, 1993.(250)

The Secret Service places individuals on an access list based on a request from the Office of Personnel Security.(251) Because Marceca was on an access list, he could have entered and exited the White House at any time throughout the 4 month period before his detail began and there would be no record of it.(252)

The White House's attempts to get Marceca detailed to the Office of Personnel Security lasted 5 months and involved several attempts. Mr. Kennedy testified that he was told by Livingstone that the office could use Marceca's expertise in dealing with the numerous members of the military that have access to the White House.(253) Despite all of Kennedy's efforts, he has a vague recollection of the complications of obtaining Marceca or even the outstanding qualifications that Marceca ostensibly possessed.(254) Mr. Marceca, however, spent the majority of his time sifting through SF-86's for errors and working on the Update Project. It appears that a great amount of time was spent in getting a friend of Livingstone's detailed at the Army's expense. Why was it so important to detail Tony Marceca to the White House?

C. Marceca's Introduction to the White House Office of Personnel Security

1. Introduction

The Clinton administration had problems getting through the paperwork necessary to obtain permanent White House passes for its staffers during the first year and a half of the administration.(255) One of the problems was a backlog in the processing of the SF-86 forms, which had been filled out by new White House staff members. The SF-86 is a questionnaire which calls for sensitive and personal information from the appointee. Former White House Counsel A.B. Culvahouse described the form as "designed to affirmatively encourage the furnishing of adverse or derogatory information."(256) Each SF-86 was reviewed for errors and completeness. In previous administrations, only the Counsel to the President, his deputy and the director of the Security Office would review the SF-86's.(257)

Once checked, the SF-86 would be sent to the FBI to begin the process of a background investigation. Anthony Marceca, a temporary detailee, took responsibility for this project when he began working at OPS. Mr. Marceca testified that the first day he began to work in OPS, the backlog of SF-86 forms was piled up on his desk in a stack 2\1/2\ feet high.(258)

Although Marceca began working in the White House on August 18, 1993, prior to that, on August 9th, he went to the White House to get his pass and to discuss what his duties would be.(259) According to Marceca, he met with Nancy Gemmell, Lisa Wetzl and Craig Livingstone.(260) Mr. Marceca stated that at that meeting Nancy Gemmell explained to him the procedures to follow for the duties he would be performing while working with OPS.(261) Ms. Gemmell was a holdover employee who had worked in OPS since 1981, the beginning of the Reagan administration.(262)

During that meeting Marceca took notes of what he was told.(263) Mr. Marceca stated that Nancy Gemmell showed him the procedures he should follow in completing the "Update Project" as well as other duties he was expected to perform.(264) However when asked whether she personally gave Marceca the Secret Service list to continue the Update Project, Gemmell stated, "[N]o sir; I had no idea who would be assuming that responsibility."(265) Ms. Gemmell did leave behind a written sheet of instructions which he would be able to refer to after she left.(266)

2. Discrepancies in Marceca's testimony

In stark contrast to his testimony before the committee that he thought everyone on the "update list" was in need of access to the White House complex, his handwritten notes make it clear that he was aware that OPS was responsible for taking former White House employees off of the lists. He wrote: "De-activate (sic) former staff . . ."(267) Mr. Livingstone, Marceca's supervisor, also was aware that it was the White House's responsibility to inform the Secret Service who to take off of their lists of active pass holders. In a March 1993 memorandum to Associate Counsel Bill Kennedy, Livingstone wrote:

Please note that there are many Bush Administration employees that still have active badges. USSS [U.S. Secret Service] informs me that it is WHS [White House Staff] responsibility to deactivate badges. I am working with WHOMA [White House Office of Management and Administration] to begin this process.(268)

In his deposition, Marceca testified that he did not know what a Secret Service WAVES list was, nor did he know what a temporary pass holder or permanent pass holder list was.(269) The Secret Service would provide the Office of Personnel Security with an updated passholders list on a monthly basis or upon request.(270) When asked whether he had ever seen Secret Service lists which were separated by office, Marceca testified that he did not think that he had gotten any lists which were broken down by office until January 1994.(271) Nancy Gemmell stated that when she left the office in August 1993 she went to the Secret Service, and requested a current master Secret Service list separated by office.(272) This is the list which Gemmell left in the office with the understanding that an additional list should be requested:

Ms. Gemmell. I was very much understood that the initial list the office had was just that, an initial list to be used to start the first steps of the Update Project. It was very well-known that many personnel decisions had yet to be made and therefore that follow-up would have to be done.

* * * * *

Mrs. Collins of Illinois. So then during the regular update projects in which you were involved, how often would you request a list of names from the Secret Service?

Ms. emmell. Basically, only twice, ma'am. At the beginning to initiate the process, and then the second time to be used as the file copy.

Mrs. Collins of Illinois. Did you leave behind any Secret Service lists of names that you had requested for the Update Project when you left in August of 1993?

Ms. Gemmell. The list that was received from the Secret Service was left behind. It was still in process; far from being completed; correct.(273)

Mr. Marceca testified that the only regular Secret Service lists which he knew of were weekly pass lists which he received from the Secret Service and used to complete his project. He stated that these lists contained only a small number of people who were on the access lists and needed to be contacted to fill out an SF-86.(274)

The Secret Service did not provide the office with "access lists" in the manner that Marceca used the term. The Secret Service lists are quite distinctive, as the paper is oversize, on green and white computer printout paper with perforated edges. The access lists to which Marceca refers are created by the Office of Personnel Security based on names provided by the Office of Management and Administration.(275) In hearing testimony however, Marceca, stated specifically that he recalled working with the large, green and white computer printout lists.(276) Contrary to his statement, in his own notes Marceca writes, "Mr. David Watkins, head of management and administration . . . monthly report submitted on passes."(277)

Lisa Wetzl, a staff assistant in OPS, testified that when Marceca arrived he took over her duties of helping to correct and submit to the FBI the SF-86 for new employees.(278) Ms. Wetzl explained that both she and Nancy Gemmell went through the process with him to make sure that he understood it.(279)

The duties which Marceca was to perform in OPS were rather amorphous. Mr. Marceca testified that, "I would work in the Office of Personnel Security doing updates of White House staff and visitors, people that had access."(280) Mr. Marceca testified that Livingstone was his supervisor; (281) however, Livingstone testified that he did not supervise Marceca. With regard to the Update Project, Livingstone testified, "I didn't supervise this project."(282) Mr. Livingstone stated, "I don't believe that there was anything specific that Tony would have been required to talk to me specifically about. Certainly not in the form of projects."(283) According to Livingstone, nobody in the office was reporting to him on the activities of Marceca.(284) It appears from Livingstone's statements that Marceca had free reign to do whatever he wanted without consultation with actual staff.

Mr. Marceca, however, testified that he was assigned the Update Project by Livingstone.(285) Livingstone, the Director of the office, has no clear recall as to who was assigned the project, who was working on the project at any given time, or who was supervising the project.(286) Ultimately, Livingstone was in charge of all activities in that office, and Marceca was the individual assigned to work on the Update Project.