D. Marceca Begins the Update Project

1. Introduction

As discussed previously, when a new administration arrives at the White House, nearly all of the previous administration's records are removed for storage in the Presidential archives.(287) Those records would include the background investigations and paperwork which are stored in the Security Office. Therefore the records for all holdover employees must be recreated by ordering the background investigations from the FBI.

Marceca's task was to recreate these files, and he would spend some time each week working on the Update Project. The process to determine which files to order is simple. The Secret Service has lists of all current passholders which it provides to OPS. The Secret Service lists can be printed out in different formats, one of which is current passholders by office. Previous administrations would go down the lists office-by-office to determine who the holdovers were in each office. The staff would start with those offices which routinely would have the largest amount of holdovers, such as the General Services Administration and White House contractors. The White House Office would normally be saved for last as it would have the greatest turnover with the least amount of holdovers. (The White House Office includes those offices with mostly political appointees such as the Chief of Staff and Communications.) (288) After determining who the holdovers were, the office would order those FBI background investigations.

Before leaving the White House, Nancy Gemmell had begun the very first stages of the Update Project:

Mr. Schiff. Can you describe what the Update Project that you were working on until August 13th was?

Ms. Gemmell. Basically, again, sir, it was just simply setting up the very first stages of it, and basically, that means that you were making dummy files; in other words, file jackets that would be used down the road. So therefore you were typing file labels, you were typing subject files. As an example, if you were processing the General Services Administration employees, you would type a subject file for that group also.

Mr. Schiff. Did you have a way of dividing up the Secret Service files_that is, GSA group or White House group there or something like that?

Ms. Gemmell. As I recall the list, sir, the list of employees was by category; in other words, was by office.(289)

At the time Marceca started in OPS Nancy Gemmell had already retired. Ms. Gemmell testified that she did not know whether Marceca used the list she had left behind, nor did she know who would be assuming the responsibility for the Update Project.(290)

2. Marceca's understanding of the Secret Service lists

Mr. Marceca stated that as part of the Update Project he was to refer to a list and open files on individuals who had access to the White House.(291) He explained that his mission was to open a file on each individual on the list and then request a previous background investigation from the FBI.(292) When asked whether Nancy Gemmell had ever instructed him to determine the accuracy of the status of the names on the list, Marceca answered:

My project was to establish_was establish a file that would perform a check to find out if these folks were still on staff or not on staff . . . The list that I was provided was a list to my understanding that everybody on that list had access.(293)

Mr. Marceca's answer is puzzling. In the first sentence, he states that he was to determine who remained on the White House staff; he then states that everyone on the list had access. Mr. Marceca claims to have worked from the same list throughout the Update Project (294) and had discovered that certain individuals on that list were no longer granted access to the White House complex.(295) Mr. Marceca's statements appear contradictory. It is unclear what Marceca actually knew about the Secret Service lists. We do know from his own handwritten notes that, in the course of processing the individual files, he would place all files of White House Office staff in orange folders, all Vice-Presidential Office staff in pink folders, all volunteer and intern files in red folders and all support staff (GSA) in blue folders.(296)

The master Secret Service list includes a combination of active and inactive passholders. The passholder names on the list, however, are clearly differentiated by "A" or "I," meaning active or inactive. According to the Secret Service, the only list which Marceca could have used to request all 476 of the names would be the master list.(297) Mr. Marceca testified that he was under the impression that the "A" and " I" designation on the Secret Service lists stood for "access" and "intern."(298) The list Marceca used also contains the date of birth on each passholder.(299) If one were to accept Marceca's testimony regarding his belief that the letters stood for "access" and "intern," then it follows that Marceca also believed that he was ordering background files on holdover interns who were 30 to 70 years old, and who had interned during Reagan and Bush administrations.

Contrary to his already incredible testimony, the request forms Marceca sent to the FBI on these "interns," as in the case of Billy Dale, identified them not as interns, but as staff members.

3. Marceca's explanation of the Update Project

In a hearing before the committee, Marceca again clarified the procedures he employed in doing the Update Project. He stated in the hearing that he worked from a "set of computer lists" which were kept in the vault of OPS.(300) He added that he attempted to go through the names on the list in the order in which they appeared.(301) For each name on the list he would prepare a file folder and type the request on a preprinted form addressed to the FBI Liaison requesting a "copy of previous report."(302) On those forms is a space for the purpose of the request. In that space, Marceca typed "ACCESS (S)."(303) That denoted that the individual named on the form was requesting access to the White House. The "S" was an internal OPS designation for White House staff.(304)

After receiving the previous report from the FBI, Marceca stated that he would review it to determine the suitability of the person for a position in the Clinton administration, and to check the date for the standard 5 year reinvestigation.(305) In the process of determining the date of reinvestigation, Marceca claimed he would discover that many individuals were no longer employed by the White House.(306) Once Marceca began receiving a number of files for individuals no longer working at the White House and not seeking access to the White House, he created a "dead bin" where he would put all of those files.(307)

Mr. Marceca also testified at the hearing about the "set" of lists which he worked from while he performed the Update Project. He described the list as being on green and white computer paper, approximately 8 inches wide which was folded over and had connecting pages.(308) The list he worked off of was approximately an inch thick with the names of the individuals in the left hand column.(309) During the hearing, Marceca recalled that the list was divided into subgroups according to office, which is contrary to his deposition testimony.(310)

Mr. Marceca told the committee that he was told by Livingstone, and possibly others in the office, to work off of the list he had been using.(311) Mr. Livingstone and Lisa Wetzl have both stated that they do not know which list Marceca was using for the Update Project. Nancy Gemmell has testified that she did not even know who would be working on the Update Project, therefore she did not give anyone a Secret Service list to use for the Update Project. In fact, she testified that she instructed the individuals working in the office that they would have to request an updated Secret Service list to complete the project.(312)

Although Marceca stated in his deposition that he never knew that there might be any problems with the list he was using, he later stated in the committee hearing that he realized there were problems, causing him to change his method of updating the files:

Mr. Flanagan. You understood [the list] was current, and it turns out it wasn't. Was it fair to say it was an updated list?

Mr. Marceca. No, sir. It is fair to say that I believed the list was current when I had that list. Later on it developed that there were people that had left the White House, when I started that project they had no reason to believe that list was outdated or that those people did not have access to the White House.

* * * * *

Mr. Marceca. I believe I worked on that list until I discovered, and it was not a sudden discovery, but somewhere after a couple of months_well, it is being pointed out it was always the same list. When I discovered that there were problems with that list, I then changed my approach to updating.(313)

There is no evidence to suggest that Marceca changed his approach to the Update Project. In fact, when asked why he stopped at "G-o" on the list, Marceca testified that was as far as he had gotten on the list.(314)

Mr. Marceca explained his two goals as he proceeded down the list. First, he wished to determine that the individual was still at the White House, and second was to ensure that he "didn't prevent them from coming into the White House in case of an emergency."(315) His actions, however, contradict his stated goals. Mr. Marceca did not check whether an individual on the list was currently employed by the White House before ordering his file, otherwise he would not have received the files of over 400 individuals not currently employed by the White House. It is not clear what emergency he referred to when explaining his second goal. He did not have the ability to prevent a current passholder from entering the White House compound by conducting the Update Project. The only way to accomplish that would be to notify the Secret Service to deactivate the individual's pass.

In his deposition before the committee, Marceca described two different procedures which he used for recreating the FBI background files of holdover employees. He first explained that he would work from the SF-86 form and then check the "update list" to determine if the name on the SF-86 were also on the list.

Answer. The very first thing I had to do was [take the SF-86] go into the vault, pull out this list that was in the vault, and check to see if the name was on the list. Which means, that if it was on the list, then they were former White House staffers. If their name was on the list, I would put a check beside their name

. . . If they were not on the list, I would just continue on. . . . This is the update list in the safe.(316)

He then stated that he worked off of the list, not the SF-86 form.(317) Mr. Marceca then clarified this apparent contradiction by explaining that after the project was not advancing as planned, he began to make lists of names from the "Update list" and systematically circulate those to offices in the White House.(318) Attached to Marceca's lists of names would be a request from Marceca asking whether any of the individuals listed were holdovers.(319)

4. The "Dead Bin"

In the process of making these requests, Marceca would be informed by the various offices that certain individuals on Marceca's list had left the White House some time ago. Marceca explained:

In some cases those folks, the GSA [General Services Administration] would tell me this person is still here, but these people with GSA, two or three people with GSA left in '87 and they are no longer here. So I would go back to the file then and I would check off on the list and I would not call for an SBI because I knew they were not there.(320)

If Marceca had actually gone through the list in this manner, he would not have received any files of individuals who were not currently working in the White House. Instead, he had accumulated somewhere in the range of 500 files which he stashed in the "dead bin."

Marceca defined what he considered his "dead bin:"

That file that the update list sat in was where files were stored that were what I recall dead files, files of people who no longer worked at the White House. They went in that file. They went in that bin. If there was_if the name was not_if the person's name was not on file in that bin, that meant that I had to open a file. But before I opened a file, I checked into file drawers to find out if a file had already been opened. And if there was no file in the file drawer, I got a new file folder, and I opened a new file . . .(321)

The so-called "dead bin" which Marceca created raises some very troubling questions. It is implausible that, after he received even one file for an individual who was not presently working at the White House, he did not raise any questions about the list which he was using. Apparently he did not question the list after receiving over 400 files of individuals who were not working at the White House.

Mr. Marceca was a career investigator, trained to ask questions and find answers. It is not plausible that Marceca would not be able to determine the reason so many names, with "I's" next to them, no longer worked in the White House. Nor is it plausible that he was unaware of whose files he was requesting. When questioned why he requisitioned files on known prior Republican officials, Marceca responded that he had seen a high level Republican in the White House on one occasion. He therefore, did not question whether any other well known Republicans should be on the list as well.(322)

Mr. Livingstone was aware that Marceca was working on the Update Project, but claims that they did not have any conversations about the project: "I don't have a specific recollection of talking to anyone about when Tony started or if Tony was trained properly on it."(323) Likewise, Ms. Wetzl, a staff assistant at the time, did not know what process Marceca was using to complete the Update Project.(324)

Mr. Marceca wrote memos to Livingstone to keep him up-to-date on the status of his projects,(325) and he kept detailed lists of each previous report received from the FBI.(326) Everyone who worked in the Office of Personnel Security, a one room office,(327) testified that they knew Marceca was working on the Update Project, but never asked him about it.(328)

All prior employees of the one room Office of Personnel Security are unable to recall what Secret Service list Marceca used for the project, including Marceca.(329) Ms. Wetzl, however, destroyed Ms. Gemmell's list, and testified she does not believe Marceca used it for the Update Project.(330) Wetzl further stated, "Nancy had left all her stuff in one corner and I didn't believe that Tony had used any of that, that he had gotten a new list from the Secret Service and was working on that."(331) Ms. Wetzl, Livingstone's 24-year old Executive Assistant, made the decision to destroy the only possible clue as to why the files were improperly obtained.

5. Marceca's other duties

Committee documents show that Marceca's testimony of his responsibilities in the Office of Personnel Security was not comprehensive. Although he apparently did handle the processing of forms for background investigations, he provided additional services as well.(332) Marceca's memoranda to Livingstone show that he was assisting White House employees whose background investigations threatened their jobs. One Marceca memo entitled "Analysis of Personnel Background" contained the following:

1. Subject should first fire the attorney who wrote the letter, for the following reasons:

(a) The letter is combative and argumentative

(b) The letter does not offer explanations, but excuses

2. I suggest the following be included in a new letter:

(a) Subject has paid his/her dues to society, for past mistakes.

* * * * *

(c) The shoplifting incident occurred because the subject needed money to buy food . . .

* * * * *

(e) [I] am very sorry for the mistakes of my past . . . and I believe being fired is unfair and unreasonable.(333)

Why, as these documents suggest, did the Clinton administration employ Marceca to cleanse background problems for employees with criminal histories? How extensive was the problem of employees with background blemishes? Was Marceca hired specifically for that purpose? These questions raise further concerns about the approach taken by the Clinton administration toward security issues.

E. Marceca's Detail Ends

1. White House attempts to extend Marceca's detail

Marceca's detail ended in February 1994. Livingstone and Kennedy had attempted to extend his detail; (334) however, there were "unresolved issues" in his background which made Kennedy decide not to renew the detail.(335) Livingstone testified he thought Marceca would have liked to continue his detail; however, he discussed these "unresolved issues" with Kennedy who made the final decision not to renew the detail.(336) Mr. Kennedy explained:

Question. [W]e have been informed by the White House that [Marceca] did leave sometime in February of '94. Do you know why he was not retained at the White House?

Answer. Well, I don't remember the timing involved. Okay? I simply do not know when things took place. But if I remember correctly, there were two things that sort of impacted this. One of which is that the White House, I don't believe, wanted to pick up paying for him. That's number one. Number two, Tony's background had come in and there were some problems revealed with it that made me think it might be better if he kind of went back to where he was.(337)

A White House document shows that Livingstone and Kennedy requested an extension of Marceca's detail on February 28, 1994.(338) The request is on a non-reimbursable basis starting on February 28, 1994 and ending on June 27, 1994, with Marceca's duties outlined as assisting the Security Office with military adjudication. The form notes that reimbursement would start on April 11, 1994.

This document was signed by Kennedy after Marceca's original detail ended and after the problems in his background were discovered on December 17, 1993. On March 8, 1994, the White House Personnel Liaison contacted Livingstone asking, "Do you know the start date for Tony Marceca?"(339) Mr. Marceca testified that he was unaware of any attempts to have him re-detailed to the White House.(340) Messrs. Livingstone and Marceca did discuss the problems which were developed in Marceca's background investigation.(341) Even after Kennedy and Livingstone had received Marceca's background and knew there were suitability issues, they requested that he be redetailed. A March 17, 1994 letter, only recently produced to the committee, shows that Livingstone had requested, as late as March 3, 1994, a subsequent detail for Marceca. The March 17 letter respectfully withdrew the request. No explanation was given for the change of heart on Marceca working at the White House.(342)

Mr. Kennedy stated that the problems in Marceca's background were "not problems that would have led to a termination sort of on the spot."(343) Although Kennedy refused to discuss the specific problems, Marceca did tell the committee that a woman had filed a private claim against him in Texas.(344) Marceca testified during a deposition for a civil case he filed, that he was charged with official oppression for misuse of his office.(345) In that case, Marceca had brought suit for slander against Justice of the Peace Lilly A. Stephenson, whom the FBI interviewed during Marceca's background investigation.(346) Judge Stephenson met Marceca while he was working for the Texas Attorney General's Office, Medicaid Fraud Division. During the FBI interview of Judge Stephenson, she stated, "I would not hire him [Marceca] to serve civil papers from my Justice of the Peace Office . . . he is nothing but a blow hard and [I] could not recommend him for a position of trust and confidence with the United States Government."(347)

2. Marceca does advance for the Clinton administration

After Marceca's detail ended he remained in close contact with Livingstone and volunteered at the White House. Before Marceca left the White House he had a meeting with Livingstone, Lisa Wetzl and Mari Anderson. In that meeting Marceca agreed to come in on successive Saturdays and work with the others to finish the Update Project.(348) Mr. Marceca claimed that he never completed the project because he was sent on a detail to Canada by CID.(349) Upon his return, he was named acting Special Agent in Charge of his Washington Fraud Team, and stated he "didn't have the time to do anything like that."(350)

Although Marceca did not have time to complete the Update Project, apparently he did have time to do advance work for the Clinton administration. On May 18, 1994, Marceca left a message for Livingstone about an advance trip: "He [Marceca] just got off a trip w/ Perry (Sec.) [Secretary of Defense William Perry]. He would [like] to talk to Craig about what he observed."(351) He had left a message for Livingstone earlier in the month stating that he, "cannot go on [the] trip to Normandy."(352) At the end of June 1994 Marceca left a message that, "[he] wants to go to lunch/ also wants to go on trip w/ you."(353) Mr. Marceca appears to have continued to work on advance trips through 1995 and 1996, according to phone messages he left for Livingstone.

In January 1995, Marceca left Livingstone a cryptic message: "If you're going on `that' trip, he'll see you are taken care of. Otherwise, he'll talk to you later."(354) "That" trip was never identified in documents produced to the committee. Mr. Marceca called Livingstone in September 1995 to request assistance getting on the advance detail of a local trip.(355) Likewise, in December Marceca asked Livingstone to schedule him for a trip in February or March 1996. Marceca stated that he would be willing to take 2 weeks leave to do a trip.(356) These messages suggest that Marceca stayed in contact with Livingstone and participated in numerous advance trips for the administration.

Mr. Marceca also contacted Livingstone regarding issues with his FBI background investigation. Mr. Marceca visited Livingstone at the Office of Personnel Security on September 11, 1994. During that visit, Marceca reviewed his own FBI background file. He explained that Livingstone did not allow him to read it, rather he accidentally saw it:

Question. How did you happen to see the report?

Answer. I was visiting the White House and I was in Mr. Livingstone's office, and I pulled out a_We were in a conversation. He took a telephone call and turned his back, turned around to his desk. There was newspaper there. He was on the phone four or five minutes. And I reached up and pulled the newspaper out and background investigation spilled on the floor. I picked up the background investigations, and the last background investigation to pick up, put back in the stack, which happened to have been all rolled up, was my background investigation. I opened that up, and when I saw my name_and I saw_I briefly read what the FBI said. I turned a couple pages back, and I saw [Mrs. Stephenson], what she said . . .

I looked at what Mrs. Stephenson said briefly. I read that, and I flipped it back and I saw what Ms. Montag said.

Question. Okay. Now__

Answer. I then put the file back underneath the rest of the BI's and continued to read the newspaper until Mr. Livingstone rejoined the conversation.

* * * * *

Question. And so what you did when you picked up that report, opened it up and read it, you committed a criminal act, did you not?

* * * * *

Answer. No sir, I was cleared to look at background investigations.

Question. But not yours?

Answer. Sir, that was the fickle finger of fate that [report] would fall on the floor.

* * * * *

Question. Is that not a violation of your code of ethics?

Answer. I don't believe so, sir. It was an accidental discovery.(357)

After Marceca's "accidental discovery" of his FBI file during his visit to the Office of Personnel Security in September, he contacted Livingstone about the FBI again. On October 6, 1994 Marceca left a message for Livingstone stating, "Got a visit from the FBI."(358) On December 16, 1994, Livingstone received a message from "Marvin:" Will send over file on Marceca.(359) No last name is indicated on the message; however, Marvin Krislov was an Associate Counsel to the President in December 1994. It is odd that Livingstone would have Marceca's file sitting out on a table in the vault 8 months after his detail ended.

Mr. Marceca admitted under oath that he had read his own background investigation after he no longer worked in the Office of Personnel Security. The information which he read in his background file was the basis for the lawsuit he filed on November 14, 1994 against Judge Stephenson.(360) Marceca's actions exemplify why it is imperative that the Office of Personnel Security employ only individuals who are professional, circumspect and have demonstrated a sense of responsibility and discretion.

After learning more about the backgrounds of the individuals in control of the function of requesting FBI background files, it is all the more difficult to believe that the unauthorized ordering of hundreds of FBI files of prior Republican officials was an innocent mistake. Mr. Marceca's explanations and excuses are not credible, and his actions merit more investigation.(361)

IV. Initial Discovery of "Tony's Files"

Although the public did not learn of the White House's unauthorized request of over 400 FBI background files until June 1996, White House employees knew about it since the fall of 1994. Lisa Wetzl, Livingstone's 22 year old Executive Assistant, discovered "an awful lot of " extra files which Marceca had ordered while preparing to complete the Update Project.(362) There was a general understanding in the office that the bottom row of files in the vault, was "Tony's row."(363) Ed Hughes, assistant in the Office of White House Security, explained that he questioned Wetzl about the files, "I think Lisa had explained that they were simply Tony's files. They were files that she was not sure what they were doing there, but they were just kind of there, taking up space."(364)

When Ms. Wetzl began looking through "Tony's files," she recognized that some of the files had been mistakenly ordered after identifying Marlin Fitzwater's name.(365) She knew that he did not work at the White House anymore.(366) Ms. Wetzl told Livingstone about her discovery: "I said, `Craig, Tony ordered all these files of previous administration people that we don't need.' "(367) Ms. Wetzl testified that Livingstone had no reaction to her statement, nor did he instruct her to do anything with the files.(368)

Mr. Livingstone testified that he knew that his office had requested Billy Dale's file within "the last year or possibly two." He also believed that he produced Dale's file to Associate White House Counsel Neil Eggleston in response to the GAO investigation of the Travel Office, which was completed on May 2, 1994. Mr. Livingstone admitted that he had read the contents of Billy Dale's file, but stated that it was in the course of responding to the GAO inquiry. Mr. Livingstone testified that he saw the request dated December 20, 1993 for Billy Dale's FBI report, at that time.(369) Mr. Livingstone was therefore aware that Dale's file was requested 7 months after he was fired from the White House Travel Office.(370)

Ms. Wetzl set about her task of completing the Update Project, leaving the files in the vault so that she could refer to them if she discovered a name she might need.(371) She never consulted with anyone else nor did she ever contact the FBI regarding the files on former Reagan and Bush officials. According to Ms. Wetzl, the entire row of approximately 430 Republican FBI background investigation files in "Tony's row" simply remained in the office vault.

Sometime between December 1994 and February 1995, Wetzl boxed up the files and archived them with the Office of Records Management (ORM).(372) These boxes remained in ORM until ORM analyst Tom Taggart reviewed the documents in response to the committee's December 1995 request. Mr. Taggart notified Associate White House Counsel Natalie Williams that Billy Dale's FBI background file was among the documents archived by the Office of Personnel Security. Ms. Williams testified that she never reviewed the file or notified the committee that Billy Dale's FBI background investigation had been archived by Livingstone's office in December 1995.(373) The document was not produced until May 30, 1996, under threat of a contempt vote against White House Counsel to the President, Jack Quinn.

A. Lisa Wetzl's Background

1. Ms. Wetzl, who had no experience, should not have assumed the amount of responsibility she undertook

Prior to the Clinton administration, Jane Dannenhauer, the former Director of the Office of Personnel Security, never allowed detailees from outside the White House or interns to work in the Security Office because of the sensitive nature of the files and paperwork.(374) As with the majority of Livingstone's assistants, Lisa Wetzl came to the Office of Personnel Security as one of the first interns in June 1993 after graduating from college in May of the same year.(375) Initially, Wetzl provided general office support, answering phones and typing forms.(376) She quickly assumed the responsibility of checking the Standard Form 86 (SF-86) for accuracy and notifying White House staff of any errors.(377) Only 2 months later, Wetzl was hired as a full-time staff assistant in the office.

Ms. Wetzl testified that her responsibilities "didn't significantly change except that I was now there for the long-term so I could, you know, really get to work on things that needed to get accomplished."(378) She continued to "help to correct and to submit to the FBI the Standard Form 86 for new employees."(379) Before Ms. Wetzl came to the White House, she had never even seen an SF-86, however, once Livingstone hired her, she was correcting them for the FBI.(380)

Ms. Wetzl testified that Nancy Gemmell, a holdover employee in the Office of Personnel Security, trained her to read SF-86 forms.(381) Ms. Gemmell, however, had never read an SF-86 before the Clinton administration took office.(382) Ms. Gemmell only recently learned the procedures to follow in checking an SF-86 for completeness. In prior administrations, only the Director of the office was permitted to review the FBI background files and SF-86 forms.(383) Ms. Dannenhauer, however, was not retained on staff for a sufficient amount of time to train the new Director and employees, as she was during the transition from the Ford to Carter administration.(384) Ms. Dannenhauer explained, "[Mr. Livingstone] was not there really long while I was there. I only worked with him probably part-time. He would come in and maybe be there a half a day . . ."(385)

Mr. Livingstone did not have the proper training necessary to run the Office of Personnel Security. He was certainly not capable of training his staff in procedures that he himself did not know. Without practical work experience or training, Ms. Wetzl should not have been placed in a position of decisionmaking in an office which handled sensitive information. The fact that nobody in the office even thought to return the improperly obtained files to the FBI shows the lack of knowledge required to work in the Office of Personnel Security. Mr. Livingstone testified that the reason he did not contact the FBI about the binful of files on prior Republican administration officials was, "We were never instructed to return materials back to the FBI."(386) Neither Livingstone nor Wetzl had the ability to think on their own and make the determination that a Democratic administration should not have hundreds of Republican administration files.

2. Limited inquiry

Ms. Wetzl's FBI background investigation was completed and the results were provided to the White House on September 3, 1993. For reasons unknown, the Counsel's Office did not submit her report to the Secret Service for adjudication until 7 months later, on April 11, 1994. She received her White House permanent pass shortly thereafter, on April 25, 1994. Mr. Livingstone requested CIA "compartmented clearance" for Ms. Wetzl and she received three clearances above the level of top secret in August 1994. The committee never received any explanation for these delays. Ms. Wetzl continued to work in the Office of Personnel Security throughout the year processing and correcting incoming SF-86 forms, processing pass requests and maintaining the weekly access and pass extension lists.(387)

On April 10, 1995, Livingstone notified the FBI of an "apparent discrepancy between information on Ms. Wetzl's Standard Form (SF) 86 and the information provided during her initial interview with the FBI Special Agent."(388) Special Agent Gary Aldrich testified that he was the "lead agent on the Wetzl investigation." A "limited inquiry" was initiated by the FBI and the results provided to Craig Livingstone on May 26, 1995.(389) FBI general counsel advised the committee that the reason for the "limited inquiry" was "a discrepancy regarding drug usage."(390) Mr. Livingstone then asked the CIA to review Ms. Wetzl's new limited inquiry results, and her three CIA compartmented access clearances continued without further inquiry. Ms. Wetzl left the Office of Personnel Security in September 1995, to take the position as the Confidential Assistant to the Secretary of the Army, the Honorable Togo D. West, Jr.(391)

The committee has not been able to determine, due to Livingstone's refusal to appear at a deposition, why Mr. Livingstone suddenly ordered a limited inquiry on Ms. Wetzl's "discrepancy" that had apparently been in her background for 18 months. During these 18 months, she had top secret and CIA clearances to review the most sensitive information, apparently without concern by the White House Counsel's Office. Then, 4 months before her departure to take on a position requiring the utmost confidentiality, Mr. Livingstone undertakes the review of her background to clear up the "drug usage discrepancy."(392)

B. Lisa Wetzl discovers "Tony's Files"

1. Wetzl to complete "Update Project"

Originally, Marceca planned to return to the White House and complete the Update Project with the assistance of others in the office.(393) Mr. Marceca however, never completed the project and it fell by the wayside for close to 10 months until Lisa Wetzl took it upon herself to finish it.(394) Ms. Wetzl did not feel comfortable undertaking the Update Project while she was only a staff assistant.(395) She stated, "I started_when I was promoted to executive assistant is when I, you know, felt I could start this project on my own and get it over with, because I knew it had to be done. That was in the fall of '94."(396)

2. Marlin Fitzwater, or too many files

Once Wetzl looked into what Marceca had been working on, she realized that there were problems.(397) She described what she discovered when she began looking through the bin in the vault which Marceca used:

Tony had separated his files from the rest of the files, I assume for easier access for him. I looked at those stacks of files and I_first thing I realized was that there were an awful lot of them, considering they were only A through G. And just working for the office_it had been a couple of years at least_I didn't think that there were that many holdovers.(398)

When Wetzl began looking through the names on the files, she realized that some of them were "mistakenly" requested.(399) Ms. Wetzl recognized Marlin Fitzwater's name on a file and knew that he did not work at the White House anymore.(400)

Ms. Wetzl described her first reaction as that of exasperation when she realized that she would have to remedy the problem.(401) Ms. Wetzl never stated that she was alarmed or concerned that files had been ordered on individuals who were not seeking access to the White House.

Similarly, when Wetzl approached Livingstone about the unauthorized files, he had no marked reaction.(402) Ms. Wetzl testified that she told Livingstone that, "Tony ordered all these extra files, what a pain."(403) The only thing she can remember Livingstone saying was, "Oh, Tony," or a statement to that effect.(404) Mr. Livingstone and Ms. Wetzl were the two most senior staff members in the office and neither of them found it notable that hundreds of files were ordered on prior administration officials, alleging that they had no idea that they ought to return the files.(405) Mr. Livingstone described one situation where the office would return files to the FBI:

Sir, if I could be specific, often_not very often but often, we would get_for John D. Smith, we would get John S. Smith's report sent to us by mistake by the FBI. Now, that we would send back to the FBI if we knew that we were requesting John D. Smith versus John S. Smith, assuming they had no business ever at the White House.(406)

Livingstone's attempts to make a distinction between the FBI sending the wrong file and the White House requesting files improperly are in conflict. It is disingenuous for Livingstone to maintain that he believed that the two situations called for a different response.

C. The "Update Project" Is Redone by Lisa Wetzl

1. Wetzl destroys the Secret Service list

Ms. Wetzl testified that upon discovering the unauthorized files ordered by Marceca she began to look around the vault for the materials which both Marceca and Nancy Gemmell used in the course of the Update Project.(407) Ms. Wetzl found a list which she believed had been left by Nancy Gemmell, she explained, "I knew immediately that it was out of date. It was extremely long and appeared to contain hundreds of names from past administrations."(408) Ms. Wetzl proceeded to destroy that list, the only evidence which might have provided some explanation as to why all of these files were ordered.

Wetzl was questioned about why she would have destroyed the list in a hearing before the Senate Committee on the Judiciary:

Senator Thompson. All right, so it could have possibly been the same list that Mr. Marceca used to obtain all those improper files? Is it possible?

Ms. Wetzl. Anything is possible, yes.

Senator Thompson. So you had the files there and you had the list there, the Gemmell list?

Ms. Wetzl. Yes.

Senator Thompson. And you decided to destroy the Gemmell

list, or put it in the burn bag. Is that correct?

Ms. Wetzl. Yes.

* * * * *

Senator Thompson. I guess I am just asking the question_you had these files, you saw them, you saw that there were many, many more than what was appropriate, and simultaneously you had a list that apparently had the same characteristics. It just occurs to me that you might have wanted to compare that list of the files to see whether or not you were holding a list of the files that you were going to have to be going through and working from, and that might have helped you determine what Tony had used to get those files.

Ms. Wetzl. Well, at that point, I didn't really_the mistake had already been made. I didn't care what . . . Tony had done . . .

* * * * *

Senator Thompson. The decision as to what to put in the burn bag and what to archive_is that something that you were instructed on or something you made a decision on yourself?

Ms. Wetzl. It was something I made a decision on myself.(409)

Although Wetzl testified that her understanding was that "all paperwork that we didn't need anymore that we wanted to put in storage, it all had to go to Records Management."(410) The materials Marceca was using never went to Records Management. It was destroyed. With that act, Ms. Wetzl eliminated the only real evidence of exactly what Marceca had in his possession when he ordered the hundreds of files on prior Republican administration officials.

2. Process by which the project is completed

Ms. Wetzl testified that after she discovered Marceca's "extra files," she proceeded with Project Update. She began working off of a list from the Secret Service "of pass-holders" and went through the list to identify names that no longer should have access to the White House complex.(411) When Wetzl discovered a name of an individual that was no longer an active passholder, she notified the Secret Service to remove the name from the list. Ms. Wetzl also cross referenced her list with updated lists from supervisors of the departments within the White House complex.(412) Because she thought all of the other lists were "hopelessly outdated," she simply started over creating her own list.

Unlike her predecessor Mr. Marceca, Wetzl testified that she did not read the new Project Update files that she received for content.(413) She merely looked at the top of the first page to determine when the individual would need a 5-year reinvestigation and then "filed them."

3. Extra files are boxed up and archived

The group of files ordered by Marceca were gathered together by Wetzl sometime between December 1994 and February 1995. Ms. Wetzl testified that she "mentioned it" to Livingstone that files from the previous administration had been ordered and that she may have told him that "Marlin Fitzwater's file is there."(414)

These files remained in the White House Security Office vault, separated from the other files for "a long period of time." Ms. Wetzl explained that she left them in the office until she figured out "whose we needed and whose we didn't."(415) At some point, Wetzl placed all of "Tony's files" in boxes to be taken to the archives. She typed up a list of the names of each individual whose file was placed in the box and took the boxes to the Office of Records Management located next door to the Office of Personnel Security. The files remained at the Office of Records Management until they were retrieved by White House Counsel Sally Paxton at the behest of Jane Sherburne on June 6, 1996.

V. White House Counsel's Office Discovery of FBI Files

A. Billy Dale's File

1. Office of Records Management responds to subpoena

On December 19, 1995, White House Special Counsel to the President, Jane Sherburne, Associate Counsel Natalie Williams and Special Associate Counsel Jonathan Yarowsky distributed a memorandum to selected White House staff regarding the committee's request for certain documents relating to the White House Travel Office firings.(416) Shortly thereafter, Williams was notified by Tom Taggart, of the Office of Records Management, that in preparing documents for release to the committee, he had discovered the FBI background file of Billy Ray Dale.(417) In a hand-written note to his file dated December 27, 1995, and signed by Taggart, he memorialized his conversation with Williams regarding Billy Ray Dale's FBI background investigation file:

Today, on 12/27/95, I notified Natalie Williams about Billy Dales FBI (retired) report (background check & vetting) that we received with other files from Craig Livingstone. She said that this file involved personal and personnel privacy issues_would not be sent to the Committee, nor would it be released. She is not interested in seeing file.

/s/ (Tom Taggart, Jr.)

12/27/1995 (418)

As the note makes clear, while both the White House Counsel's Office and the Office of Records Management knew of the existence of Dale's background investigation file, neither had any intention of including it in the production of materials to the committee.

2. White House Counsel determines that FBI file is a personnel file

In a June 10, 1996 letter to Chairman Clinger, Jack Quinn alleged that he recalled telling the chairman during the meeting that "Billy Dale's personnel file" was among the group of personnel/vetting records being withheld by the White House at that time.(419) Mr. Quinn's statement is not true. The discussion revolved around David Watkins personnel file, a central figure in the Travel Office affair. The committee was never told that Billy Dale's file was among the files being withheld and certainly was not informed that the White House was withholding a December 1993 request for his FBI background investigation file. Moreover, Quinn never distinguished between a "personnel" file and an FBI background investigation file. These are very different files that seem to blend together in the White House's explanation.

Mr. Quinn's letter, however, evidences another contradiction. Although the letter states that he informed Chairman Clinger about the Billy Dale file at a February 15, 1996 meeting, Special Counsel Jane Sherburne deposition testimony conflicts with Quinn's statement. Ms. Sherburne testified that she did not even know about Billy Dale's FBI file until June 4, 1996.(420) Ms. Sherburne attended the February 15 meeting with Quinn.

3. Natalie Williams passes on information to Wendy White

In an effort to keep documents from the committee, the White House conducted an extensive operation of reviewing documents in order to ensure that damaging information was not released. The White House Counsel's Office hired additional staff just to review, scrutinize, redact, and finally, produce documents the committee requested.(421)

Wendy White was one of those hired to assist in the document review. Ms. White was hired as Special Associate Counsel in mid-February 1996 to assist with the production of materials to the committee. According to White, she learned of the Dale file as soon as she began work at the White House.

Shortly after I started, Natalie Williams, who had been working on the subpoena response, returned to private practice. Before she left, she provided me with certain information I needed in order to complete the production. During this transition period, she advised me that the Office of Records Management maintained a Billy Dale file responsive to the subpoena that should be retrieved from ORM if the committee and White House reached agreement that the file should be produced for in camera review or otherwise.(422)

In several instances where the White House produced documents in partial compliance with the committee's subpoena, the Billy Dale file was not included.

4. Wendy White's handling of Billy Dale file

a. May 21, 1996_orders the Dale file from OPS

In early May 1996, after the committee was forced to hold Quinn in contempt, the White House decided to comply with the committee's subpoena of January 11, 1996. Responding to this action, the White House began to prepare documents for release to the committee. Ms. White wrote of this preparation of documents, "On May 21, 1996, I had the Office of Personnel Security retrieve the Billy Ray Dale file from the Office of Records Management. At my direction, the file was then copied and prepared for production."(423) Ms. Sherburne wrote a July 18, 1996 letter to the chairman explaining that she and Ms. White had no discussions about a Billy Dale FBI background file; rather they discussed a personnel file.(424) Ms. Sherburne's own letter makes clear that she understood there to be a difference between personnel files and FBI background files, and that she did not know of the Billy Dale FBI background file.(425) The White House steadfastly maintains, however, that at the Febuary 15, 1996 meeting they were discussing FBI background files, before Sherburne claims to have known of the Billy Dale file. White House Associate Counsel Natalie Williams also believes she likely told Sherburne about the Billy Dale file.(426)

White told the staff of the committee, "I gave the original file back to the Office of Personnel Security on May 23, 1996 to be returned to ORM. The White House produced the Billy Dale file to the committee, together with the other documents, on the morning of May 30, 1996."(427)

B. Chairman Clinger's June 5, 1996 statement

1. The committee receives 1,000 pages

On May 30, 1996, the White House produced 1,000 documents to the committee in order to avoid a vote by the House of Representatives on the contempt citation against Quinn. That production included Dale's FBI background file and the memorandum from Bernard Nussbaum, then Counsel to the President, to the FBI liaison requesting the file. That was the first time the committee learned of the White House improperly requesting, maintaining, and withholding the FBI background file of Billy Ray Dale.

Investigators for the committee were reviewing the White House documents when they came upon memoranda of an extremely personal nature about Dale and his family. Affixed to these documents was a December 20, 1993 memorandum from Nussbaum to the FBI requesting a copy of a "previously requested report" for the background file of Billy Dale. Mr. Dale was dismissed from the White House 7 months before the request, and had no need for White House access.

2. Chairman Clinger's statement on the Billy Dale file

Chairman Clinger first learned that the White House had obtained the FBI background file of Dale from the White House May 30, 1996 document production. He made no public statement on the matter until June 5, 1996.

At a press conference to express his outrage on this matter, Chairman Clinger released the memorandum from Nussbaum requesting the FBI background file of Billy Ray Dale. Chairman Clinger asked, "Can there be any legitimate reason why President Clinton's White House Counsel requested the confidential FBI background checks a full 7 months after, I repeat after, Billy Dale was fired and unjustly accused and smeared with allegations of wrongdoing? And yet, for a reason that has not yet been determined, the FBI complied with the request."(428)

Out of concern for the individuals whose privacy had been violated, Chairman Clinger took steps to commence a full investigation of the White House's improper actions in obtaining this and possibly other FBI background files.

VI. FBI Involvement in the Files Matter

On June 5, 1996, Chairman Clinger telephoned FBI Director Louis Freeh upon discovery of the White House document requesting the background file of Billy Ray Dale. Chairman Clinger, in a press conference, notified the public of this event and released the request form, the document used by the White House to obtain FBI background investigations, from the White House.(429) Director Freeh immediately sought a meeting with FBI General Counsel Howard M. Shapiro and Deputy General Counsel Tom Kelley.(430) When he could not locate Shapiro, Freeh sought answers from Kelley on how background files of former White House employees could land in the White House.(431)

A. Director Freeh initiates investigation

According to Kelley, Freeh showed him the document that Chairman Clinger released and asked Kelley to undertake an initial investigation of the White House request for Billy Ray Dale's file.(432) Kelley told the committee that "[the Director] asked me to come over and he explained to me that this release that Congressman Clinger had made, he showed me a copy of the document and he said he would like to determine how that could have happened, and dispatched me to find out."(433)

1. Tom Kelley's initial investigation

Kelley recognized the source of the document as the memorandum used by the White House to request an FBI background investigation and went to discuss the document with the Executive Agencies Sub-unit of the Information Resources Division at the FBI. Kelley spoke with SPIN Unit Chief Jim Bourke, as well as Jan George, and Formy Duvall, of the Executive Agencies Sub-unit of the Information Resources Division.(434)

David Kitchen, recently appointed Chief of the Executive Agencies Sub-unit, soon became involved in Kelley's inquiry. Mr. Kelley received the background file of Billy Dale from Bourke. Mr. Bourke had already retrieved the file, aware of the controversy surrounding it. Kelley soon learned that the file had been disseminated to the White House on January 6, 1994, in response to a December 20, 1993 request form.(435) This was more than 2 years before the White House mentioned the file to the committee.

When background material is released to a Federal agency, it is reviewed by the FBI for information that should not be released. On the back of each page that is released, a stamp is marked indicating that information in the file, or the file, itself, has been released. In addition to the stamp, the date of the release and the initials of the analyst who reviewed the file for release among others, are added. Mr. Kelley noticed that "there were quite a series of [pages] that were transmitted."(436)

Mr. Kelley learned from Jan George that, instead of putting the White House request for the file in the file, itself, the FBI retained the form in separate files.(437) The file of White House requests had been retained only for 1 to 2 years, in response to the growing number of files requested.(438) No copies of the White House request forms had heretofore been retained.

Mr. Kelley reported to Director Freeh and General Counsel Shapiro that the file had been sent to the White House. Director Freeh instructed Shapiro to undertake a more extensive investigation into the matter and prepare to release the facts to the public. The Director asked that the report be made to the Director and to the Deputy Attorney General. The Director told Shapiro that the general counsel's office was the best place to conduct the investigation, because only then could the Director ensure that the investigation was done "properly and . . . swiftly."(439)

When he was first given the task of investigating the dissemination of FBI files, Shapiro asked Director Freeh if he thought that the Office of Professional Responsibility or Investigations Division should undertake the investigation. Director Freeh assured Shapiro that he should conduct the investigation.(440)

Generally, the Office of Professional Responsibility would investigate allegations of wrongdoing within the FBI. The FBI Office of Professional Responsibility investigates allegations of criminal or ethical misconduct by employees of the FBI. The FBI also has an Inspection Division. The Inspection Division is charged with ensuring that the FBI conducts its business according to the law and regulation.(441)

In addition, the Department of Justice Inspector General would be available to investigate the circumstances surrounding the improper release of Billy Dale's file. The Inspector General enforces criminal and civil laws, regulations and ethical standards within the Department of Justice by investigating individuals and organizations who allegedly are involved in financial, contractual or criminal misconduct in Department of Justice programs and operations. Director Freeh did not believe that the Office of Professional Responsibility or the Department of Justice Inspector General were capable of conducting an investigation "properly" or "swiftly." He chose his friend, Howard Shapiro, to conduct the investigation.(442)

2. Howard Shapiro takes over the investigation

On the afternoon that Shapiro was instructed to undertake an investigation of the events surrounding the specious request by the White House of an already dismissed employee's FBI background file. Shapiro watched a video tape of Chairman Clinger's June 5 press conference on the discovery of the White House request for Billy Dale's FBI background file as a way to acquaint himself with the issues.(443)

According to Shapiro, Paul Cignoli, chief of the FBI's Civil Discovery Review Unit, took the initiative to determine whether or not the background files of other fired Travel Office employees had been disseminated to the White House.(444) Shapiro learned that the background file of Brasseux had also been obtained by the White House. Shapiro advised Director Freeh of this fact and the Director advised Chairman Clinger.(445)

B. FBI Report

On June 14, 1996, the FBI released the Report of the FBI General Counsel on the Dissemination of FBI File Information to the White House. The report found that the White House had sought and received hundreds of FBI background investigations, "without justification." Director of the FBI Louis Freeh stated that the White House's actions constituted, "egregious violations of privacy."(446)

The report also summarized the previous practices that led to these violations. There was an unusuably large number of requests for FBI background investigations from the White House. The FBI report recounts the dramatic increase in requests from the White House during the years 1993 through 1996.(447) The rise in number of requests is attributed to several factors.(448) At the end of each administration, all files are removed from the White House for placement in the Presidential library of the retiring President. Therefore, in order to reconstruct the files necessary to accommodate access for career civil servants in the White House, new administrations must obtain previous reports filed on those civil servants.

According to the FBI report, when an administration has a change in party, the number of files it must order is greater than when the preceding and succeding parties are of the same political party. The FBI could provide no evidence that the change in political party of the administration produced a greater demand for background files than a change in administration within the same political party. Particularly since the request for files at issue were mostly of people in the political offices where there were very few holdovers, there should have been few requests for files of White House Office staff.

Director Freeh criticized the Clinton administration's abuse of the FBI in the accumulation of FBI background files. On the occasion of the release of the report, Freeh, promising to prevent future abuse, said:

The prior system of providing files to the White House relied on good faith and honor. Unfortunately, the FBI and I were victimized. I should have known before last week about a decades old system that failed. The FBI and I fell victim to my lack of vigilance, and this failure to exercise proper management controls also affected the privacy rights of many persons. I deeply regret those problems and pledge that they will not occur again on my watch. Like the report on which I based my comments, I have not reached any conclusions regarding the motivation of any White House employee.(449)

In response to Freeh's statement that the FBI was "victimized," White House Press Secretary Mike McCurry said, "I do not understand those statements. There has been no abuse of the information in the files."(450) This statement came soon after the White House Chief of Staff, Leon Panetta, apologized on national television to the "hundreds of people . . . whose classified FBI personnel files were obtained by the Clinton administration and reviewed by an Army security officer."(451)

According to the FBI report, several offices in the White House can request a name check or a background investigation: the Executive Office of the President, the National Security Council, the Counsel to the President, or the Office of Personnel Security. The requests from the Office of Personnel Security, the office headed by D. Craig Livingstone, were sent under the name of the White House Counsel. No signature was affixed to the forms sent by the Office of Personnel Security.(452)

The report explains that the forms are picked up by an FBI courier and delivered to the Special Inquiry and General Background Investigations Unit of the FBI's Personnel Division. The forms that are the subject of this controversy sought "copies of previous reports." A request for a copy of a previous report is submitted to the Executive Agencies Sub-Unit of the Executive Agencies, Personnel and Administrative Support Unit of the Information Resources Division. That office has a staff of 36: 18 research analysts; 11 file assistants; and 7 clerks or typists.(453) Two members of this staff are assigned to the "White House Desk."

When the White House Desk receives requests for previous reports, it obtains the FBI file number of the subject of the request. Once the file number is found, all background investigation files are obtained by the White House Desk. According to Shapiro's report, these files contain all raw data used to compile summaries and reports. To comply with a request for previous reports, the analyst first confirms that the files received are for the person for whom the White House has requested information. Then, the analyst determines what information to send to the White House. Memoranda, interviews, and other documents previously prepared in conjunction with the file are copied, as are any letters prepared for the previous transmittal of this information. The original documents that are copied are listed on a "pull card," and stamped on the back with the initials of the analyst on the back of the file. Then, the copies of the documents are sent to the White House with the original request.(454)

Those in the office managing the White House requests for background files saw a significant rise in the number of requests. Congresswoman Morella questioned Peggy Jean Larson, Supervisor of the Executive Agencies Dissemination Unit, Sub-unit, at the FBI.

Mrs. Morella. Did there come a time in late '93 and early '94 when you began to receive a large amount of requests for copies of previous reports?

Ms. Larson. Yes, Ma'am.

Mrs. Morella. In your 32 years of experience with your unit, can you recall another instance when you received more than 400 requests for copies of reports within a 2- to 3-month period?

Ms. Larson. Probably not within a 2- to 3-months period. It is not unusual that we would have received that many requests over a longer period of time, but I can't recall in that short period of time.

Mrs. Morella. Did you report the unusual number of requests to your supervisor?

Ms. Larson. I made Mr. Thornton aware of the fact that we did have an increase in the number of request for prior backgrounds only. I only brought it to his attention because I was going to have to get some overtime. I believe it is in the record that one of my employees, her husband was ill and the other analyst was rather backed up.

Mrs. Morella. Did he indicate that he would follow up on this? I wondered what his response was.

Ms. Larson. His response was, did I have enough help, and how much overtime did I need, and were there any problems. I said no, that just because of one of them being out, that the other analyst was in need of overtime. He said that was fine. But as far as the nature of the request, there was no problem with that.(455)

In his deposition, Bourke stated that those opening the requests would not recognize the names of people for whom background investigations had been requested.

Ms. Olson. But anything that comes in with the first two boxes, previous report or name check, would go on to the Name Check Unit?

Mr. Bourke. Correct.

Ms. Olson. Regardless of who the individual is?

Mr. Bourke. Correct. I mean, the people who open those packages wouldn't know James Baker from you, or me. Well, they would know him from me. They know me from him.(456)

People in that office, however, did recognize the name of James Baker.

Ms. Remington. In late 1993, early 1994, would you know who James A. Baker was?

Ms. George. I remember when we got the name check in, Sherry Canter did it.

Ms. Remington. Did she know who James Baker was?

Ms. George. Yes.(457)

It is clear that there were FBI officials who recognized the high number and unusual nature of the requests for background investigations coming in to the FBI, but they apparently relied upon the "good faith and honor" of the White House.

C. Attorney General Janet Reno Refers the Matter to Independent Counsel Kenneth W. Starr

Independent Counsel Kenneth Starr wrote to the Attorney General Janet Reno on June 18, 1996, stating his reservations about the Independent Counsel conducting the investigation of the dissemination of FBI files to the White House, because he felt his mandate lacked the scope.(458) Mr. Starr had begun a preliminary inquiry on the first day the Dale file became public. Mr. Starr had heretofore conducted the investigation into the White House firing of seven employees of the White House Travel Office. Mr. Starr sought evidence regarding the White House retrieval of Dale's file, because it was evidence that the White House sought damaging information with which to tarnish Dale's image.

On the same day that Starr wrote of his concerns to Reno, Shapiro was notified that he would be tasked with conducting a complete investigation of both FBI and White House involvement in this affair.(459) At 9 a.m. on June 20, 1996, Attorney General Reno made a request to the U.S. District Court for the District of Columbia that the issue of the White House retrieval of FBI background investigations on former Bush and Reagan administration officials be added to the jurisdiction of the Independent Counsel.(460)

In her public statement, Reno said, "I have concluded that it would constitute a conflict of interest for the Department of Justice itself to investigate a matter involving an interaction between the White House and the FBI, a component of the Department of Justice. Therefore, I have decided today to seek an expansion of Mr. Starr's jurisdiction from the court, so that he may conduct that further investigation."(461)

Once a matter is put within the jurisdiction of an Independent Counsel, it is then specifically outside the jurisdiction of the FBI. Title 28 of the U.S. Code, in § 597, states that "[w]henever a matter is in the prosecutorial jurisdiction of an independent counsel or has been accepted by an independent counsel under § 594(e), the Department of Justice, the Attorney General, and all other officers and employees of the Department of Justice shall suspend all investigations and proceedings regarding such matter . . ." The FBI, as a bureau within the Department of Justice, is governed by this provision of the U.S. Code. The FBI should have suspended its investigation or any involvement in the FBI files investigation. Mr. Shapiro was clearly without any authority to investigate this matter.

D. FBI Contacts the White House after Reno's Referral

As of June 20, 1996, the investigation of the release of FBI files to the White House was referred by Attorney General Reno to Independent Counsel Kenneth Starr. At that time, the only entities rightfully investigating the matter were the Independent Counsel and the Committee on Government Reform and Oversight.

1. Freeh requests that Chairman Clinger review background investigations rather than question agents

As part of its investigation, the committee sought to learn why personnel with largely political backgrounds were placed in sensitive positions in the White House Office of Personnel Security. Additional concerns were voiced regarding allegations of impropriety on the part of Livingstone and Marceca. The committee heard testimony regarding Livingstone's and Marceca's suitability for the positions they held.(462) The committee initially sought to interview those agents who conducted the background investigations of Livingstone and Marceca.

In a July 10, 1996 letter, Director Freeh wrote that he had "grave concerns about having line Agents subjected to congressional inquiry about specific investigations and I respectfully ask that your committee use other means to obtain the information needed for your inquiry."(463) Freeh was concerned that such interviews conducted by a congressional committee could have a "chilling effect on the vigor with which our Agents conduct investigations."(464) In the same letter, Freeh wrote, "I respectfully ask that you allow the FBI to provide [the background files] to you through knowledgeable managers or that the Committee pursue the underlying documentation."(465)

Chairman Clinger acceded to Director Freeh's request regarding the review of Livingstone's and Marceca's background files. Barbara Olson, chief investigative counsel, arranged to view the files at FBI headquarters. On July 15, 1996, FBI Congressional Affairs Director Margaret Owens spoke with Steve Colloton of the Independent Counsel's Office to ensure that the Independent Counsel had no objections to making the files available to the chairman and approved staff of the Committee on Government Reform and Oversight. Mr. Colloton said the office of the Independent Counsel had no objections to the release of the files to the committee.(466)

2. Shapiro notifies White House Counsel's Office, whom he referred to as "affected parties," of potential incrimination Nussbaum's statement

In preparation for that visit, Owens had the files retrieved. Paralegals in the Civil Discovery Review Unit analyzed the files, ostensibly to redact names of those in the files who had provided information on the condition of confidentiality. On July 15, 1996, Paul Cignoli, Chief of the Civil Discovery Review Unit, brought a document in Livingstone's file to the attention of Tom Kelley.(467) Mr. Kelley realized its importance.

The document was a portion of a memorandum of an interview with Bernard Nussbaum. Nussbaum, the former Counsel to the President, was interviewed by Special Agent Sculimbrene in conjunction with the background investigation of Livingstone. In the memorandum of that interview, Sculimbrene wrote in March 1993:

Bernard Nussbaum, Counsel to the President, advised that he has known [Livingstone] for the period of time that he has been employed in the new administration. [Livingstone] had come highly recommended to him by HILLARY CLINTON, who has known his mother for a longer period of time. [Nussbaum] was confident that the appointee lives a circumspect life and was not aware of any illegal drug or alcohol problems. He said that the appointee will work at the White House on security matters. He said that in the short period of time that the appointee has worked for him he has been completely satisfied with his performance, conduct and productivity. He recommended the appointee for continued access in his current capacity.(468)

During hearings before the committee on June 26, 1996, witnesses, including Nussbaum, testified under oath that they did not know who was responsible for the hiring of Livingstone. Several members of the committee questioned the veracity of the witnesses. The exasperation of the committee is evidenced in the remarks of Congressman Christopher Shays of Connecticut. When the witnesses could not answer the question of who hired Livingstone, Shays declared, "You know what, anybody can tell you_there's not a person in this room who doesn't know who hired them for whatever job. It's disingenuous for you guys to take so long [to answer the question]."(469) Those reviewing the Livingstone file apparently were aware of the controversy surrounding the question of who hired Livingstone, because Cignoli informed Kelley immediately of the contents of the memorandum, and then Kelley immediately notified Shapiro.(470)

On July 15, 1996, Mr. Shapiro obtained a copy of the page from Livingstone's file once he learned that its contents would be damaging to the White House.(471) He showed the copy to FBI Counsel Larry Parkinson.(472) He discussed the contents of the memorandum with Margaret Owens and John Collingwood, both of the Office of Public and Congressional Affairs. On that same day, he also spoke with Director Freeh about the controversial document. Mr. Shapiro read the incriminating sentence, that Livingstone "had come highly recommended to him by Hillary Clinton," to Dennis Corrigan, Chief of Staff to the Deputy Attorney General at the Department of Justice, and informed Corrigan that he would call the White House with this information.(473)

Immediately after speaking with Corrigan, Shapiro telephoned the White House.(474) Mr. Shapiro called for Quinn and learned that he was away from his office. Mr. Shapiro spoke with Quinn's deputy, Kathleen Wallman.(475) Ms. Wallman notified Special Counsel Jane Sherburne. In other words, almost 1 month after the Attorney General referred the matter to the Independent Counsel, Shapiro relayed information uncovered in an investigation of the FBI files matter to the White House, the subject of that investigation. Shapiro recounted his conversation with the White House in a deposition before the committee:

Answer. [I]n preparing the documents for [Chairman Clinger's committee to review], my staff had identified a page that I thought would be of interest to them because it related to a matter that had already been the subject of substantial controversy. And I read to her that single sentence of the paragraph summarizing the interview of Bernard Nussbaum. And she asked me in what form it appeared. And I described that it was a page that had three paragraphs relating to interviews about three different people conducted over a couple-day period. Again, I read to her that sentence.

Question. Did you tell her that it appeared that it had been_the interviews had occurred from March 1 to 3, 1993?

Answer. I believe I did. I am not entirely certain but I think I did. I lost my train of thought for a second.

I told her_well, she asked me what limitations, if any, would there be on the committee's use of that information or further dissemination of it. And I said, you know, I didn't purport to be an expert or a scholar on matters like that; that the Privacy Act did not apply to the Committee as such and that I did not think there would be legal restrictions, or I was aware of no legal restrictions and that it would be used at the discretion of the committee chairman.

Question. And just so the record is clear, the sentence that you read to her verbatim was the sentence that [Livingstone] had

come highly recommended by Hillary Clinton?

Answer. Yes.

Question. Who has known [Livingstone's] mother for a longer period of time?

Answer. Yes.

Question. So you contacted the White House before anyone on this committee ever saw that document; is that correct?

Answer. Well, as it turns out. The intent was for it to be essentially contemporaneous, but yes.(476)

Chairman Clinger was alarmed to learn that the White House, the target of the ongoing investigations, had reviewed the documents before he had. In a statement to the public on August 1, 1996, Clinger said, "No one from the FBI called me to read me a verbatim account of the Nussbaum notes. Apparently no one at the FBI read a verbatim account of these notes to anyone at the Independent Counsel's Office. I did not review the file personally until July 18, 1996. I would note the White House and over a dozen present and former staff obtained the information in Nussbaum's interview prior to my having reviewed the file."(477) Clinger listed numerous people in the White House who were notified immediately of the contents of Livingstone's file.

a. Sherburne's telephone tree

Several witnesses have testified before the committee as to the number of people involved in discussions about the Nussbaum interview as relayed by Shapiro. After Shapiro notified the White House on July 15, communications within the White House and outside the White House ensued immediately.

Once Jane Sherburne was notified of the controversial and damaging contents of Livingstone's file, realizing the importance of the damaging information, she made it a point to spread the word about the file to a large number of people on that day. Ms. Sherburne recounted the exact manner in which she contacted people in a deposition before the committee.

Question. Did you discuss [the information relayed by the FBI] with anyone else in the White House?

Answer. Yes.

Question. Who did you discuss it with?

Answer. Well, I would have discussed it with my team, with Kathy Wallman, with Evelyn Lieberman, and Harold Ickes; perhaps others, but that would have been the core group.

Question. Who on your team__

Answer. And Jack Quinn as well.

Question. Who on your team did you discuss it with?

Answer. Certainly Mark Fabiani, Sally Paxton, and John Yarowsky. Possibly others, but those would have been the primary ones.

Question. And did these discussions occur on Tuesday after you had received your call from the FBI?

Answer. They would have been Tuesday or Wednesday.(478)

The members of the White House staff that were informed by Sherburne of the incriminating information allowed them to prepare answers to questions that were sure to come at the release of this information. More importantly, perhaps, was the fact that Sherburne sought out Mrs. Clinton to relay this information.

Question. Do you know if anyone has discussed it with Mrs. Clinton?

Answer. Yes.

Question. And who is that that discussed it with her?

Answer. I did.

Question. And when did you discuss it with her?

Answer. It would have been Tuesday or Wednesday. [July 16 or 17, 1996] (479)

Sherburne continued to list the people she notified of the information contained in Livingstone's file.

Question. Have you had any discussions of this with anyone outside of the White House other than your attorney?

Answer. Yes.

Question. And who was that?

Answer. David Cohen, Jim Fitzpatrick, Larry Pedowitz.

Question. Jim Fitzpatrick who is representing Bernie Nussbaum?

Answer. That's right. And I'm trying to remember if I spoke to Randy Turk about it. I may have.

Question. Were you aware that Bernie Nussbaum was going to go into a grand jury appearance shortly after you had your conversations with his attorney?

Answer. No.(480)

Ms. Sherburne contacted people in and outside the White House. Those in the White House contacted by Sherburne included officials in the White House Counsel's Office and the Chief of Staff 's Office. Kathleen Wallman is the Deputy Counsel to the President. Evelyn Lieberman is the Assistant to the President and Deputy Chief of Staff for White House Operations. Harold Ickes is the Assistant to the President and Deputy Chief of Staff. Mark Fabiani, Sally Paxton, and John Yarowsky are Special Associate Counsels to the President.

Once she had notified officials within the White House, Sherburne began to contact lawyers for different individuals who were the subjects of a variety of investigations into the White House Travel Office and the FBI files controversy. Sherburne contacted David Cohen, a lawyer with Miller, Cassidy, LaRocca & Lewin, who represents Craig Livingstone. She contacted Jim Fitzpatrick, a lawyer with the firm of Arnold and Porter, and Larry Pedowitz, a lawyer with Watchell, Lipton and Associates, both of whom represent Bernard Nussbaum. The subjects of the investigation into the FBI files matter were privy to the machinations of the investigation, itself.

In a hearing before the committee, members expressed dismay at the level of closeness between the White House and the FBI. In his questioning of Shapiro, Congressman Stephen Horn made clear the nature of his concerns:

Mr. Shapiro, I will tell you what makes me very curious. You

are a very bright young man, you are obviously very sophisticated, you have conducted a major prosecution, and suddenly you get some information, and you pick up the phone and call the White House. Did you want to curry favor with them . . .? (481)

Shapiro once again denied the impropriety of informing the White House of information uncovered in an investigation of the White House. Horn continued:

What bothers me is that with Mr. Freeh coming in, we were assured that the FBI would be independent. Then we have the Vincent Foster press release bit, and it looks like the FBI is trying to curry favor with the White House. I don't think the FBI should curry favor with anybody. I think they should be independent, call them as they see them, but they shouldn't be playing one side where they are giving them all the cues as to what is in the file, and it bothers me that that has occurred on several occasions.(482)

2. Shapiro dispatches agents to interrogate Sculimbrene

In addition to notifying the White House about details of the committee's investigation, Shapiro sent two agents to interrogate Agent Sculimbrene at his home early on July 16.(483) Agent Sculimbrene interviewed Bernard Nussbaum in the course of preparing Livingstone's background investigation, and recorded Mrs. Clinton's involvement with Mr. Livingstone. Because some at the White House had questioned Agent Sculimbrene's information, Shapiro claims that he wanted to confront Sculimbrene with the discrepancies.(484) FBI Agents searched Sculimbrene's work station and papers that day.

Shapiro and Kelley made the decision to send Duncan Wainwright, an Assistant Inspector, and Special Agent Jennifer Esposito to interview Sculimbrene. Inspector Wainwright had been assigned to work with Shapiro on the FBI files investigation. Special Agent Esposito, the wife of William J. Esposito, Deputy Assistant Director of Financial Crimes, Public Corruption, Civil Rights, and Operational Support, was sent because, according to Shapiro, she was "from [Wainwright's] squad."(485)

Inspector Wainwright telephoned Agent Sculimbrene to inform him of Shapiro's intent to send agents to Sculimbrene's home on that day to interview him. Agents Wainwright and Esposito arrived at Sculimbrene's home at approximately 11 a.m. on July 16, 1996.

Sculimbrene reviewed the memorandum in question and said that it appeared to be written by him. Although Sculimbrene could not remember the precise interview with Nussbaum, he described the process by which he recorded his interviews. Sculimbrene performed thousands of interviews in the normal course of his work at the White House. The memorandum written by Esposito and Wainwright describes their interview with Sculimbrene:

SA [Special Agent] Sculimbrene stated that his interview report should accurately summarize Nussbaum's comments concerning

Livingstone. He noted that he took pride in his work and sought to make his reports accurate and complete. SA Sculimbrene noted that is was his general practice to prepare his interview reports on the same day that an interview took place. He followed this practice because it caused him to prepare his reports while the information was fresh in his memory.(486)

In addition to recounting the procedures he used to record interviews, Sculimbrene stated that he did recall a significant fact regarding Livingstone. Agents Wainwright and Esposito wrote that, "SA Sculimbrene does recall being told by Livingstone that Livingstone's mother was a friend of Hillary Clinton."(487) Clearly, the information from this interview buttresses the informaton found in Sculimbrene's original memorandum of the interview of Nussbaum.

In his statement regarding Shapiro's actions surrounding the improper contacts with the White House, Chairman Clinger said:

On July 16 there was another unusual occurrence. Two senior headquarter FBI agents appeared at the home of FBI agent Dennis Sculimbrene to talk with him about this interview of Bernard Nussbaum and ask for his notes of the interview. According to Mr. Shapiro, this action was taken at his direction and without any consultation with the Independent Counsel. Why after the Attorney General had clearly stated that these matters would be handled by the Independent Counsel because they presented a conflict of interest for the Justice Department and the FBI, did Mr. Shapiro take this disturbing action? (488)

This action perpetuated the feeling among members of the committee that the FBI was wrongly involved in protecting the White House. The FBI wasted resources to hide the embarrassing facts contained in Sculimbrene's memorandum. Some saw the FBI's tactics as heavy handed. Regarding the choice of agents to conduct the interview, Congressman Horn engaged in the following colloquy:

Mr. Horn. Who picked the particular agents that interviewed Mr. Sculimbrene?

Mr. Kelley. I did.

Mr. Horn. How did you happen to pick them?

Mr. Kelley. Actually, the one I picked was Duncan Wainwright. I picked Duncan Wainwright for several reasons. First, he used to work for me, and he is very steady and reliable and intelligent.

Mr. Horn. How about the second agent?

Mr. Kelley. May I finish? The second agent was picked by Duncan Wainwright.

Mr. Horn. Did one of the agents have a spouse who worked for the FBI?

Mr. Kelley. Yes.

Mr. Horn. And what did that spouse do?

Mr. Kelley. The spouse is the assistant director of the Criminal Investigative Division.

Mr. Horn. A fairly high position in the FBI.

Mr. Kelley. Yes, it is.

Mr. Horn. Now, if somebody with that relationship showed up on my doorstep, and I am an FBI special agent, as Mr. Sculimbrene was, I would worry that somebody is after me, wouldn't you? Don't you think that is intimidation? (489)

Members of the committee were concerned with the mere fact that the interview took place, and that it was done after the entire investigation had been turned over to the Independent Counsel. The committee was equally concerned about the way the interview was conducted. Agents telephoned Sculimbrene, told him they were on their way, and soon arrived at his home to conduct the interview.

3. Shapiro made his own assessment that the matter was not within Independent Counsel Starr's jurisdiction

The initial discovery of the information in the Nussbaum interview resulted from Shapiro's staff reviewing files for release to this committee. The files that were reviewed were those of the two figures central to the FBI files investigation being conducted by the committee and the Independent Counsel. The committee's review came at the suggestion of Director Freeh, who was well aware of both the committee's investigation of the FBI files matter and that these files were requested in that matter. Nonetheless, despite overwhelming evidence to the contrary, Shapiro claimed not to know the purpose of the committee's request for these files.

In an appearance before the committee, Shapiro testified that he did not believe that the contents of the Nussbaum interview were related to the FBI files investigation. Chairman Clinger asked Shapiro if he knew the Attorney General had referred the "filegate" matter to the Independent Counsel in response to concerns that any such investigation might provide a conflict of interest for the FBI. Shapiro responded that he was aware of the referral. However, Shapiro testified that he "did not think that this information specifically was at the time part of the Independent Counsel's investigation."(490) Steven Schiff, vice chairman of the committee, attempted to clarify the matter. Responding to Schiff 's question about whether he thought "that Mr. Livingstone's hiring was related to the matters to be investigated by the Independent Counsel," Shapiro replied,

My misunderstanding, if I had one, was whether the question of how Craig Livingstone came to be hired was a matter within the scope of the criminal investigation of the Independent Counsel's Office looking into what I understood to be the criminal investigation, was the request for and acquisition of the FBI files.(491)

The qualifications of Livingstone for a position in the White House Office of Personnel Security and whether he was placed there for political purposes is central to any investigation of the White House's improper retrieval of FBI files. According to Shapiro, he did not see the relevance of how Livingstone got his job to that investigation. Members of the committee did not believe that Shapiro could see the need to relay this information to the White House, yet not see the bearing it had on the investigations being conducted. In a hearing before the committee, Congressman Burton said:

Let me get this straight here. The people you did not advise about this were the Independent Counsel, the Senate Judiciary Committee, or the members of this committee before you advised the White House Counsel, the Deputy Attorney General's office, who has a lot of liaison and connection with the White House. It's widely known that since Mr. Hubbell left the Justice Department, Ms. Gorelick, the Deputy AG, has the most intimate relationship with the White House, both political and otherwise. If you step back and look at the results of your decisions to notify the White House and the Justice Department, the Democrats who needed to perform damage control were made aware but the Republicans and the Independent Counsel investigating the matter knew much later. So we gave the people who were trying to defend themselves a heads up first.(492)

Many members of the committee were angered over Shapiro's statements that the hiring of Livingstone was not related to the White House retrieval of FBI background files.

Soon after Shapiro notified the White House about the contents in the memorandum of Mr. Nussbaum's interview, private lawyers were notified about that information. It was reported that Mr. Nussbaum was to testify before the Independent Counsel shortly after learning of this information. Showing concern for this series of events, Congressman Gilman posed the following question to Shapiro at the committee's hearing.

In your opinion, how should the Department of Justice react if a representative of the FBI, on his own, shares FBI information with an outside party that bears on the party's possible testimony or other derogatory information or leads that would assist that party in thwarting the government's inquiry? How do you think the Justice Department should react to that kind of statement? (493)

Shapiro responded that "if the Department thinks that someone at the FBI is interfering with an investigation, it is a matter they should take very seriously."(494) Later in that hearing, Congressman Gilman asked Shapiro, "[W]asn't there an ongoing grand jury inquiry on the files and on Livingstone at the time you made your telephone calls?"(495) Shapiro replied, "There_well, I'm obviously not fully aware of what inquiries there are. I understand that the Independent Counsel's office was conducting and is conducting a grand jury investigation into what_into the request for and acquisition of FBI files by the White House."(496) The fact that Shapiro, a former prosecutor with the U.S. attorney's office, took actions that may have interfered with an ongoing investigation is simply unacceptable for the FBI's top lawyer.

4. Nussbaum's criminal referral

Shapiro knew the clear significance of the information in the FBI background file, which contained contemporaneous notes of an interview of Nussbaum. Nussbaum relayed information about Livingstone to FBI Agent Sculimbrene in March 1993, at a time when Nussbaum had no reason to be dishonest. In addition, Agent Sculimbrene had no reason to attribute any significance to Nussbaum's comments.

Shapiro knew of the controversy surrounding the hiring of Craig Livingstone, which developed in June 1996. In his deposition before the Committee on Government Reform and Oversight, Shapiro first hypothesized about why his staff would have alerted him to the contents of the memorandum in question. Shapiro said:

[I]t was brought to my attention because it referred to a matter which had already been the subject of much public controversy and many articles in the newspapers and on_stories on television about the allegation that there was a connection between Hillary Clinton and the hiring of Craig Livingstone; more specifically, that Hillary Clinton was a friend of Craig Livingstone's mother and had recommended for the job.(497)

In the same interview, Shapiro gave his reason for alerting the White House to this information. He said, "Knowing that was a matter which had already been a matter of considerable public controversy . . . . I decided that it was appropriate to advise the White House."(498)

At the June 26, 1996 hearing before the Committee on Government Reform and Oversight, "Security of FBI Background Files," none of the witnesses, including Craig Livingstone, could remember who hired Craig Livingstone. In that hearing, Chairman Clinger asked Bernard Nussbaum, Counsel to the President, "Do you know who hired Craig Livingstone?"(499) Nussbaum replied, "I don't know who brought Mr. Livingstone into the White House." Later, following Kennedy's statement that he "never discussed Mr. Livingstone with Mrs. Clinton in any way, shape or form," Nussbaum said, "Nor did I."(500) Several other witnesses denied knowing who hired Livingstone.

At that hearing, Nussbaum was under oath. He swore to tell the truth. He was the White House Counsel while Livingstone was Director of White House Security. Livingstone worked for Nussbaum. When he professed not to know who hired Craig Livingstone, committee members were perplexed. When Chairman Clinger discovered a contemporaneous memorandum written by an FBI agent that shed some light on who hired Livingstone, he was alarmed. Chairman Clinger was disappointed to learn that the document quoted Nussbaum as saying that Livingstone "had come highly recommended to him by Hillary Clinton."(501) Accordingly, this information "calls into question Mr. Nussbaum's June 26, 1996 statements made under oath before the Government Reform and Oversight Committee."

Upon discovering this information, Chairman Clinger believed that it warranted the attention of every Member of the House of Representatives and the American people. He stood on the floor of the House chamber and described the events surrounding the Sculimbrene memorandum. Calling this "a very serious issue," Chairman Clinger concluded his statement, saying, "This is a matter I will refer to the U.S. Attorney for the District of Columbia. Because Attorney General Reno has designated Independent Counsel Kenneth Starr to investigate potential criminal wrongdoing in the White House Travel Office and FBI Files matters, I am simultaneously forwarding this matter to Judge Starr's attention."(502)

On July 30, 1996, the matter of Nussbaum's statements to the FBI and before the Committee on Government Reform and Oversight was referred to the Office of the Independent Counsel and the U.S. attorney for the District of Columbia. Chairman Clinger and other members of the Committee on Government Reform and Oversight wrote to Independent Counsel Kenneth Starr and U.S. Attorney Eric H. Holder, Jr., to refer the matter to their offices.(503)

5. Shapiro edits letter for White House Counsel that is critical of Chairman Clinger

Upon the announcement that Chairman Clinger was making a criminal referral of Bernard Nussbaum, Quinn called Shapiro to request his assistance in writing a letter to Director Freeh. Shapiro testified about this matter in his deposition:

Ms. Olson. The day of Chairman Clinger's referral or the day of Chairman Clinger's Floor statement about the statements by Mr. Nussbaum and the statement that he had read in the file, did you have any conversations with the White House?

Mr. Shapiro. Yes, I was called that day by Jack Quinn and Kathleen Wallman_this is prior to the chairman's Floor speech_advised by them that they had learned from press, who I think they told me had a copy of his speech, that he was going to be making a Floor speech, and they told me that they were writing a letter.

I think what they said is, "The White House is writing a letter to the FBI director," and they wanted to ask me a couple questions about it, primarily was there anything in the tone of it that we would find offensive that would_that they would sort of be unaware, would hit somebody the wrong way at the FBI, that they would unintentionally offend somebody about.

Ms. Olson. You mean by the tone of_the tone of the letter?

Mr. Shapiro. The letter. They weren't asking me for my opinion on Mr. Clinger's speech. And also whether I had an opinion on who that letter should come from, from the White House.

Ms. Olson. And so they faxed you a copy of the letter?

Mr. Shapiro. No. They read me some language. I told them that as to most of it, I had no opinion and didn't think it was appropriate for me to comment, which is not to say I had no opinion, but didn't think it appropriate for me to comment.

They highlighted one sentence that was in one draft one way and one in the other, and I concurred with their apparent decision that they already were telling me that in the second statement

would be taken as less of an accusation against the FBI, and I said_and as to the question about who was appropriate to come from, I asked Jack Quinn, was he suggesting_I believe he asked me, did I think it more appropriate that it come from Leon Panetta? and I said, "If your question is, are you a sufficiently high level Government official to write to the director of the FBI? I think you shouldn't worry about that."

Ms. Olson. And what was the one sentence?

Mr. Shapiro. Let me look at the letter as it was sent, and I might be able to tell you.

In the letter as sent, which we received some time later that evening_first time I had actually seen it_it says_after the first three paragraphs, it says: That is why we are troubled, as we know you must be, by the implication that an FBI background investigation might include a false report.(504)

In the letter that finally went to Freeh, and was released to the public, Quinn wrote:

It is equally troubling that a Member of Congress can publicly reveal confidential information, whether for partisan purposes or otherwise. It should not escape notice that this is done at a time when Members of Congress have expressed worry that employees of the executive branch might have sought out confidential FBI information about certain individuals and planned to somehow use it publicly. While that charge has never been established against anyone in the executive branch, we now witness the same objectionable behavior by the very people who professed to be the guardians of privacy.(505)

The general counsel of the FBI edited a letter for the White House that was harshly critical of the chairman of the Committee on Government Reform and Oversight, who was performing his oversight duties. Shapiro's actions raise questions about the independence of the FBI.

Members of the committee were particularly angered by the participation of the FBI in editing a letter critical of the chairman of a congressional committee. Congresswoman Ros-Lehtinen confronted Shapiro about his participation in the drafting of the letter from Quinn to Director Freeh. When Shapiro was trying to belittle his cooperation with the White House regarding the letter, Ros-Lehtinen said:

Based on your testimony, you said that you conversed with this gentleman, talked about who the letter should go to, talked about the tone, and I would say that you had a very direct hand in the drafting of this document.(506)

Congressman Souder told Shapiro he was wrong in editing the letter. He said:

You said you helped edit a letter for the White House Counsel which attacked both our Chairman and your own FBI agents. Now

you say it wasn't editing, you were consulted. Almost any definition of "editing," you had the opportunity to edit. You say you made changes. By most definitions, that is editing, and it was a political letter which you should have withdrawn from.(507)

VII. Politicization of the FBI

The FBI serves as the principal investigative arm of the Department of Justice and as such, is charged with gathering and reporting facts, locating witnesses, and compiling evidence in cases involving Federal jurisdiction. The FBI investigates all violations of Federal law except those that have been assigned by legislative enactment or otherwise to another Federal agency.

In response to the politicization of the FBI during the Nixon administration, the Congress passed a law giving the Director of the FBI a fixed term. Public Law 90-351, provided that:

(b) Effective with respect to any individual appointment by the President, by and with the advice and consent of the Senate, after June 1, 1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years. A Director may not serve more than one ten-year term.(508)

On the Floor of the Senate, Senator Robert C. Byrd spoke in support of limiting the term of the Director of the FBI and about the importance of FBI independence. Senator Byrd said, "This amendment would aid in insulating the FBI Director against politically motivated manipulation from the executive branch by giving the office a tenure of 10 years." Senator Byrd reasoned that:

A 10-year term is desirable because it would generally overlap the tenure of a two-term President and would eliminate many of the pressures that could be brought to bear on the Director if he were to be reappointed every 4 years. In this way, the Director can be more effectively insulated from political pressures liable to be placed on him by a President and he will not be considered a politically oriented member of the President's `team.' "

After Watergate, the Congress was wary of the President's political influence over the Nation's police force. It sought a way to remove the Director of the FBI and the FBI, itself, from political involvement.

When Louis Freeh was appointed by President Clinton in 1993, he immediately took steps to change the internal structure of the FBI. He eliminated two associate deputy directors and four dozen management positions. Perhaps his most controversial move involved the appointment of his closest aides. An article in the Los Angeles Times reported about some dissension in the FBI ranks about Freeh's appointments: (509)

Some of the controversy emanates from Freeh's appointment of a triumvirate of federal prosecutors he knew when he served in the U.S. attorney's office in Manhattan. He named Robert B. Buckham, 43, chief of staff; Howard M. Shapiro, 34, is the FBI's first general counsel, and Buckham's brother, James R., 32, heads up the new office for ending interagency turf fights. "He may be relying too heavily on the views of a certain group of friends, including their estimates of other people in the organization, creating a clique," worries a former senior Justice Department official.(510)

Howard Shapiro met Director Freeh right out of Yale Law School when he first began his clerkship for Judge Leval and Director Freeh was appearing before the Judge as an assistant U.S. attorney in a major case in his career known as the "pizza connection" case.(511) Mr. Shapiro testified that the "unusually close relationship" they developed during the course of this case led to Freeh requesting he come to work at the U.S. attorney's office in New York. Mr. Shapiro testified that he believed that Director Freeh "assisted him in being selected for the job."(512)

Director Freeh again tapped Mr. Shapiro to join him on a "special assignment by the Attorney General" to investigate and prosecute the December 1989 tragic mail bombing case that killed Judge Robert Vance. They worked closely throughout the course of this case until Direct Freeh was sworn in as a Federal district court judge. Mr. Shapiro left the U.S. attorney's office and accepted a teaching position at Cornell Law School but managed to stay in contact with then-Judge Freeh.

When Director Freeh was first asked by President Clinton if he would accept the position of Director of the FBI in the summer of 1993, he sought the advice of Howard Shapiro.(513) Mr. Shapiro testified that he "urged him to take the job and encouraged him to do so."(514) In return, Director Freeh told Shapiro that he "expected" him to "come down and work for him" at the FBI to which Shapiro agreed and took leave from his teaching position at Cornell. Because Director Freeh had not yet formally created the office of the general counsel and first had to move out the current FBI career legal counsel, Shapiro began working for Director Freeh as his "special counsel" for 2 to 3 months.(515)

After the retirement of the previous legal counsel, Shapiro began to "recreate" the Office of the General Counsel and immediately brought two deputies that work with his at the U.S. attorney's office. Mr. Shapiro testified that he and Director Freeh believed these outside attorneys "could improve the overall quality of the office" since only career FBI agents had been allowed in these positions before. Mr. Shapiro, deriding their experience, stated that in the past the Bureau tended to promote individuals "based on their prediction of who would be the best agent."(516) Mr. Shapiro immediately stopped this practice however, and filled the office with former colleagues of his and the Director's.

As revelations of numerous contacts between FBI General Counsel Shapiro and the White House materialized, concerns about the politicization of the FBI have resurfaced. We learned that Shapiro had his own White House pass allowing him to come and go as he pleased in the White House complex.(517) Director Freeh's appointment of close friends rather than "the best agent" is at the center of this problem. No longer does the top lawyer for the FBI have an allegiance to the law enforcement agency whose laws he has taken an oath to uphold. Instead the relationships created within the Office of the General Counsel created allegiances to the Director and his allegiances to the White House that gave him his appointment.

Shapiro has protested any political savvy, testifying that he has had only non-political, career, Department of Justice appointments,(518) and that he would therefore not have any political issues in mind when in contact with the White House.(519) Given the great attention paid by the public, the media and the Congress to past indiscretions by the FBI in its contacts with the White House, Shapiro should have been ever aware of the political consequences of his actions. Instead of protestations that he was not "competent" to commit a political act,(520) Shapiro owed his agency and the public to be especially vigilant in his conduct, in matters involving the White House, an inherently political entity. The years that Shapiro spent in law enforcement deny him such flimsy excuses.

A. General Counsel of the FBI Hand Delivers Gary Aldrich Book to White House Counsel

As a condition of employment at the FBI, agents must sign a contract by which they agree to obtain clearance before publishing information which they gain during their duties at the FBI. When an agent or former agent seeks to publish information gained while in the employ of the FBI, he must first submit the information he seeks to publish to the FBI for its review. Offices within the FBI who are affected by the written materials are asked to review the contents and decide whether its publication would jeopardize the functions of the FBI. While the review is to be completed in 30 days,(521) records supplied to the committee by the Department of Justice show that the process of review by the FBI took almost 6 months.(522)

Former FBI agent Gary Aldrich had written a book about his service in the FBI and in the White House. He submitted a draft of his book to the FBI for its review. Once Shapiro had a copy of Aldrich's manuscript, he waited less than a month to hand deliver a copy to White House Counsel to the President, Jack Quinn.(523) To date, the White House has refused to reveal what it did with the book prior to its publication.

1. Justifications

Shapiro's justification for his "heads up" to the White House regarding Bernard Nussbaum" 1993 interview that linked the First Lady to Craig Livingstone's hiring, was that the White House was an "affected party."(524) He did not, either in deposition or hearing testimony, ever indicate the Federal Bureau of Investigation rule or policy he was adhering to by his conduct. Thus, the true purpose of his action has not fully been explained. Similarly, while inquiring into the reason for his White House delivery of the Aldrich book, Shapiro was asked in committee deposition if he "communicated the substance of [the Aldrich] book [to the White House] because they were an interested party?"(525) Shapiro replied, "Yep." But, in hearings before the committee 2 days later, he gave a more rehearsed response for the media.

In his opening statement before the committee hearings, Shapiro gave a more lengthy explanation for his distribution of the Aldrich manuscript.

The first draft of the book was replete with sensitive internal White House information that went to their internal procedures and went to White House security matters, as well as to the_directly to the result of his conduct of his official business. I delivered a copy of that to the White House Counsel's Office because, as I in fact somewhat presciently advised them, I could not ensure, the FBI could not ensure that Mr. Aldrich would not go forward and publish that book prior to receiving clearance, and in fact that is what he did.(526)

Congressman Burton attempted to obtain a more detailed explanation from Shapiro about why he delivered the book to the White House. Congressman Burton asked:

Question. What were they doing [with the book]?"

Answer. I knew that Mr. Aldrich could publish that document, as he did, without waiting for our approval, without_without concurring with our objections, and that they should know and have it in their hands before internal White House procedures were disseminated to the world.(527)

First, it is implausible that, in February of this year, Shapiro anticipated that Aldrich would consider publishing his book without FBI concurrence, when Aldrich had adhered to FBI policies in submitting the book for review. Furthermore, it strains credulity to believe that Shapiro delivered the book to Quinn out of concern about White House security. Why would Shapiro go directly to the White House Counsel's Office, which has become a public relations/political entity for the President, rather than the U.S. Secret Service, whose central mission is to protect the security of the President and the White House complex?

In addition to the "security review" being conducted by the White House, the FBI was also conducting a review in accordance with the employment agreement signed by Aldrich upon his employment. Records obtained by the committee show that the FBI had extensive consultation with Jay Stephens, former U.S. attorney, and counsel for Aldrich, regarding the prepublication review of the manuscript by the FBI.(528) Indeed, many of the concerns that the FBI had were allayed in this process. Stephens, on three separate occasions, sent to the FBI revisions in the manuscript that were made at their request.

Shapiro's explanation regarding the White House's security concerns simply does not survive scrutiny. We know that the book was delivered in February, less than 30 days after the FBI's receipt of the manuscript, and the initial meetings between the Bureau and Stephens on the editing process. Why did Shapiro see the urgent need to provide the pre-publication manuscript to the White House, without the permission of the author or publisher, months before its release?

2. Hearing testimony

To obtain a better understanding of Shapiro's motive for taking the Aldrich book to the White House, Congressman Shays asked Shapiro to define "interested party." In response, Shapiro gave another, detailed reason for sending the book to the White House:

[T]he first draft of his book contained numerous lengthy passages about internal White House procedures, White House security matters and the text of interviews of White House people. Those_I told them that I could not ensure and ultimately was unable to ensure that Mr. Aldrich would comply with our requirements as to what material could be published and what material could not, that it could be published any day without prior notice to us, as it was, and that I thought given how much it divulged about White House processes, they needed to see it.(529)

What Shapiro fails to acknowledge is that he delivered the book in February, well before any fears could have developed that Aldrich would publish without complete FBI approval.

Shays then attempted to pinpoint the reason for taking the book to the White House, rather than other agencies.

Mr. Shays. Wasn't it replete with other information that would affect other people? Why did you decide it should only go to the White House?"

Mr. Shapiro. Who else do you have in mind, sir?

Mr. Shays. Any other interested party?

Mr. Shapiro. I'm not sure_Mr. Aldrich wrote a book about his time at the White House, sir, and it was about the White House and the White House and the White House procedures.

Mr. Shays. What about all the people that were mentioned,

weren't they interested parties?

* * * * *

Mr. Shays. How about the Secret Service, did you notify the Secret Service? I would like an answer.(530)

Shapiro did not answer the question regarding other agencies mentioned in the Aldrich book, but not made aware of the contents of the book before it was published. Moreover, the Secret Service is responsible for the security of the White House. Yet the Secret Service received no notifications or information regarding the Aldrich book from either the FBI or the White House Counsel's Office.

B. Distribution of Book Within the White House

The first people in the White House to see the copy of the Aldrich book were Jack Quinn and Kathleen Wallman. Apparently, the book was divided up among several staff members for their review.

1. Cheryl Mills' review

Cheryl Mills, Associate Counsel to the President, was given a copy of the Aldrich book to review. She was asked about her knowledge of the book in a deposition before this committee.

Question. Were you aware that Howard Shapiro had given Mr. Quinn a copy of Gary Aldrich's book?

Answer. Yes.

Question. Did you review a copy of that book?

Answer. Portions of it.

Question. Were you tasked to review that by Mr. Quinn?

* * * * *

Answer. I think "tasking" is a bit strong, but maybe that is always strong, whenever you are referring to me.

With regard to the portions of the book that I reviewed, the question that I was looking at was whether or not there were disclosures of nonpublic or confidential information within it, and also whether or not_what the impact of these types of disclosures would be on the security personnel process with respect to people's willingness to be candid and open and forthright with regard to the FBI background process; and to the extent that it did have any implications for that process, whether or not these implications were sufficient to be debilitative to people's desire to enter government and serve as a public servant.

* * * * *

Question. Do you know if anyone else in the Counsel's office was given portions of the book to read or given the book to read?

Answer. I was only given a portion, so I am sure that others were also probably reviewing with regard to disclosures of nonpublic or confidential information as well as whether or not such disclosures have an impact on the integrity of and the ability of people to provide candid and open and honest information to the FBI in the process of securing or being reviewed for government positions.(531)

Mills could give no additional information about who reviewed the book and why. But Mills is not the only White House lawyer questioned by the committee who was assigned to review the book.

2. Christopher Cerf 's review

Cerf was asked about his knowledge of the Aldrich book at a deposition before the committee. He told the committee that he had responsibilities for reviewing the manuscript similar to those of Mills.

Question. Do you recall the circumstances of your learning about [the Aldrich book], whether it was in a meeting, a counsel office meeting, or outside of that?

Answer. It was in the context of my duties in the Counsel's office.

Question. Were you asked to review portions of the book or a portion of the book?

Answer. Yes.

Question. And who asked you to do that?

Answer. It was either Kathi Whalen or_it probably was Kathi Whalen.

Question. And did she explain the reason why she was asking you to review the book?

* * * * *

Answer. While I am not inclined to talk about the process that led to the deliberations on this issue, here is what I feel very comfortable telling you, and that is that I and others were asked to review portions of the book and with an eye towards whether or not there was information that would compromise security in the White House. That was my particular mission. We reported back up the line on this and, to the best of my knowledge, the outcome was that the White House did not take a position one way or the other on what the FBI should do with this matter.(532)

The committee has yet to determine the purpose of the White House Counsels' review of Aldrich's book, though not for lack of attempts. The committee subpoenaed all notes and memoranda from the White House related to the matter. However, Special Counsel Jane Sherburne reported that those documents were not "maintained."(533) Why is the White House Counsel's Office "not maintaining" notes? Why were no memoranda created on a project that ostensibly affected White House security? Were there memoranda that were destroyed?

Additionally, why did the review of pre-publication manuscripts fall within the purview of White House counsel "duties"? Was this not more suitably a matter for a security related agency? The White House's lack of response to committee requests continue to be of great concern.

The committee learned on September 18 from the FBI that they refused to accept back from White House Counsel Jack Quinn a copy of Gary Aldrich's book Unlimited Access, given to Mr. Quinn by FBI General Counsel Shapiro. The FBI refused to accept the book saying, "Because this is a document in the possession of the White House which you have described as `responsive' to a congressional subpoena, we believe it would be inappropriate for the FBI to become involved in this matter."(534) The FBI and the Justice Department are under subpoena for these documents. Why is the White House playing hot potato with Gary Aldrich's book? It is amazing, but not surprising, that the White House continues to withold documents relevant to this committee's investigation. Actions such as these increase the skepticism toward this administration. Mr. Quinn should explain his actions in trying to avoid responding to the committee's subpoena.

C. Summary of 4 Years of Politicization of the FBI

1. Past procedures for White House utilized the Department of Justice

In the past, as a result of concerns about the political use of the FBI, White House contacts have been managed primarily through the Department of Justice. The Assistant Attorney General is the primary liaison for contacts between the White House and the FBI. The current FBI has abandoned that formality. Why has the FBI general counsel now taken on the role of White House contact? At Director Freeh's request, Shapiro has held a permanent White House pass since 1993. To the committee's knowledge no other FBI general counsel has had such unfettered access to the White House.

2. First Counsel's Office not staffed with agents

In the past, FBI Directors have staffed all offices with career agents within the FBI, agents whose loyalty was to law enforcement, and not to the political winds of 1600 Pennsylvania Avenue. When Freeh was appointed, he appointed three associates from outside the FBI, and created the first Office of the General Counsel. As the person to fill the fist general counsel position at the FBI, Freeh chose his long time friend and confidante, Howard Shapiro.

In his deposition before the committee, Shapiro defended Director Freeh's decision to staff the FBI with nonagent attorneys. He said:

And we had_although we had some absolutely, and we still do, some absolutely fabulous agent attorneys who had decided to make a career of it, for the most part I thought we could improve the quality and the experience and the expertise of the office by transitioning from agent attorneys to nonagent attorneys.(535)

Although Shapiro and Director Freeh may have intended to "improve the quality" of the attorneys at the FBI, they have politicized the FBI, through the actions of Shapiro which indicate the astute political skills and the intent to protect the President and Mrs. Clinton. Shapiro, whether at the behest of Director Freeh or not, has been the most prolific contact with the Clinton administration and the White House_it's ally at the FBI. His permanent White House pass and frequent White House visits allowed and encouraged the spreading of information to the White House as an "affected party."

3. Travel Office, FBI files, and Aldrich book

Evidence of the White House's political use of the FBI can be found in the Travel Office scandal, the improper retrieval of FBI files and the improper dissemination of a manuscript to the White House. In the Travel Office matter, the White House improperly requested that the FBI conduct an investigation into the fired Travel Office employees. The Clinton administration has made liberal use of the FBI and tarnished its reputation in the process.

VIII. Secret Service Explanation

A. Introduction

When it was revealed that the White House had inappropriately sought and obtained hundreds of FBI files of former Reagan and Bush officials, the first line of defense adopted by the White House came from Craig Livingstone's attorney and was adopted by the White House.(536)

Mr. Livingstone's attorney, Randall Turk, who interviewed a number of other former White House employees about the matter when Billy Dale's FBI file was discovered, claimed the matter had a "completely innocent explanation" and blamed the problem on a "Secret Service list that still contained Dale's name as a current White House passholder."(537) White House spokesman, Mark Fabiani, immediately adopted Turk's explanations.(538) Livingstone's attorney also briefed the White House Counsel's Office on Livingstone's explanations of problems with the FBI files.

On June 7, Mr. Turk refused to reveal the name of the "Army detailee," but his identity was revealed to be Anthony Marceca, an old political friend of Livingstone's, not a low level clerk, as had initially been portrayed. Mr. Marceca did not begin working at the White House until August 1993, long after Mr. Dale's name was removed as a current White House passholder and his Secret Service pass summarily revoked.

Another attorney for Livingstone, David Cohen, claimed that "neither Marceca nor Livingstone noticed at first that the lists included so many names that should have been purged from them."(539) Yet an undated memo, which appears to be from March 1993, demonstrates that Livingstone clearly understood that there were some names on Secret Service lists that needed to be removed and Livingstone knew that it was his job to remove them.(540)

There was no list after May 19, 1993 which would have contained Mr. Dale's name as a "current White House passholder," since Mr. Livingstone himself sent a memo to the Secret Service to place Mr. Dale and his colleagues on "do not admit" status at the White House, as of May 19, 1993.(541)

Of the hundreds of FBI files that were gathered by Livingstone and Marceca, most of them were never "current White House passholders" at any time in 1993. As the Secret Service concluded in the committee's July 17, 1996 hearings on The Security of the FBI Files, on any list created in 1993, most of the 476 names of individuals whose files were improperly obtained would have been listed as inactive.(542) The explanations offered by the White House and Livingstone were implausible from the start but, since the Secret Service is not in a position to publicly respond to such attacks, the assault on the Secret Service served its purpose as a useful tactic to shift blame.

But even Livingstone had a hard time sticking with the "blame the Secret Service" strategy. On June 7, 1996, the very day his attorney was blaming the Secret Service, Livingstone went to Secret Service Agent Arnold Cole to discuss the matter. In his deposition, Agent Cole revealed:

On June 7, 1996 I received a phone message that Craig Livingstone wanted to see me about a case. On the same day, at approximately 3:45 p.m., I met with Mr. Livingstone outside his office in the Old Executive Office Building. We briefly discussed a temporary passholder case under review.

Unsolicited, Mr. Livingstone asked whether or not I had seen the press release made by his attorney concerning the Billy Dale files. I responded in the affirmative, at which point Mr. Livingstone stated, "We just wanted you guys to know that we weren't blaming the Secret Service. Using an old list was our fault, and we had the current stuff you guys gave us. I don't know what happened."

I told Mr. Livingstone that I did not think he could blame us. Basically the conversation was terminated and I reported to my supervisor.(543)

Cole testified before the committee that he had clearly briefed Livingstone on the use of Secret Service lists.(544) At any rate, no combination of errors attributed by the White House to the Secret Service can explain how and why the Office of Personnel Security inappropriately obtained hundreds of FBI files of former Reagan and Bush officials.(545)

In testimony before the Senate Judiciary Committee on June 28, 1996, Livingstone appears to deny talking to anyone in the Secret Service about the matter:

Senator Abraham. Once this was reported, I mean, a few weeks ago, when it became clear that obviously there were some files that were in this category we are discussing, did you talk to the FBI, the Secret Service, or anybody about how this could have happened?

Livingstone. I remember talking to a lot of people because I was mortified once it became apparent what we had, and I informed

counsel. As I recall it specifically, I informed my counsel, and my counsel informed White House counsel later that night, separate from me. The FBI came in immediately and removed the files.

Senator Abraham. You had talked to the FBI then and the Secret Service about it?

Mr. Livingstone. No.

Senator Abraham. You never did at that point?

Mr. Livingstone. No.(546)

Livingstone did speak with the Secret Service about this matter. Agent Cole, a decorated Secret Service employee, testified that Livingstone left a copy of his attorney's press release for him in his office and that Livingstone was making efforts to contact him throughout the week.(547) When Agent Cole spoke with Livingstone, Cole testified that Livingstone did not want to speak in his office. Cole asked him if he thought his office was bugged and Livingstone "indicated to [Cole] that he just didn't think it was safe to talk in his office."(548)

While the White House continued to place blame on the Secret Service, no one from the White House ever contacted the Secret Service to make any complaints about any problems with Secret Service lists.(549) When Secret Service Agents Libonati, Undercoffer and Cole testified before the committee on July 17, 1996, it became clear that the Secret Service was not culpable for the "egregious violations of privacy" that took place in the Office of Personnel Security. The Secret Service spent an extraordinary amount of time and resources carefully reviewing the quality of information they provided to the White House. There were no systemic problems for which the Secret Service is responsible that would account for these actions.(550)

B. The Secret Service's Role in Obtaining White House Access

The Secret Service maintains the E-Pass system. It is a computerized access and pass holder system that produces hard passes for the White House and computer printouts of pass holders. The lists produced by the E-Pass system are used to show who has and who does not have access to the White House. John Libonati, Supervisory Special Agent with the Secret Service, testified before the committee that "[t]he printouts are not designed, and should not be used for other purposes. The printouts are produced for uses related to access issues."(551)

As Agent Libonati testified, "the request for FBI files by any White House administration is made solely for active employees."(552) The Secret Service provides lists of active employees, inactive employees or a master list which contains the names of approximately 24,000 active and inactive White House passholders for the previous 8 years.(553) Letter from William H. Pickle, Executive Assistant to the Director of the Secret Service, to Chairman Clinger, August 23, 1996.(554)

The master List, kept by the Secret Service, includes 8 categories of a File Number; First, Middle, and Last Names; Pass Type; Month, Date and Year, Date of Birth; Status; Month, Date, and Year; and Office Name. The pass type indicates the areas to which the passholder has access. The first listing of month, date, and year is listed only for those whose pass is scheduled to expire, and the date listed is the date of expiration. The office name is the office in which the passholder works. The status is the place where a notation is made of whether the passholder's access is "active" or "inactive." That status is indicated by an "A" or an "I."

C. The Lists Used By the White House Office of Personnel Security

One of the excuses offered by the White House as to why the Office of Personnel Security improperly obtained FBI background files was that they were updating their files because the previous administration had removed all personnel files from the White House. According to the Clinton administration, the list provided to them from the Secret Service, which they used to find out who should have access to the White House, incorrectly included names of people from previous administrations who should not have had access to the White House. White House officials insistently refer to the Secret Service's list as defective.

Craig Livingstone testified before the committee, "[T]his mistake occurred simply because the passholder list provided to my office by the Secret Service contained some names of former staffers who no longer had access to the White House complex, interspersed among the names of actual, current passholders and others who continued to have access."(555) Liza Wetzl, now Confidential Assistant to the Secretary of the Army, testified before the committee that, "I . . . concluded that Tony must have ordered previous reports for every person on whatever out-of-date Secret Service list he had been working from."(556) This was an attempt to shift the blame for improperly ordering hundreds of FBI background files from the White House to the Secret Service. However, we learned that any list that was produced in 1993, would have identified the vast majority of the people whose files were wrongfully obtained as "Inactive."

At the time Livingstone and Marceca testified, the committee did not have the benefit of documents withheld by the White House. When the White House finally produced subpoenaed documents, they revealed that the White House knew that it was required to keep the Secret Service apprised of changes of those with access.(557) These memoranda demonstrate that the White House clearly knew that to remove names from access lists was their job.