PLAINTIFFS' OPPOSITION TO EXECUTIVE OFFICE OF THE

PRESIDENT'S MOTION FOR JUDGMENT

ON THE PLEADINGS

Plaintiffs, by counsel, respectfully submit this opposition to the Executive Office of the President's Motion for Judgment on the Pleadings.

MEMORANDUM OF LAW

I. Introduction.

In a June 12, 1997 Memorandum Opinion, the Court denied a motion to dismiss filed by Defendant Executive Office of the President ("EOP") in which EOP claimed that the White House Office of Personnel Security ("OPS") and the White House Office of Records Management ("ORM") -- the two (2) entities which unlawfully obtained and maintained FBI background investigation files on over 900 former Reagan and Bush Administration appointees and employees⁽¹⁾ -- were exempt from the Privacy Act. In its ruling, the Court confirmed that the Privacy Act applied, on it face, to EOP, emphasizing that ". . . the plain language of this statute includes the EOP as an 'agency' . . . ." See Memorandum Opinion at 5 The Court also found that a limited, judicially created exception for cases arising under the Freedom of Information Act ("FOIA") did not apply to the Privacy Act because of the very different purposes of the two statutes:

Although the plain language of this statute includes the EOP as an "agency" which is accountable under FOIA, the courts, bearing in mind the purposes of the statute and the legislative history, have interpreted the definition to exclude the President's immediate personal staff and units within the EOP whose sole function is to advise and assist the President. While it is true that Congress adopted the statutory definition of "agency" as used in FOIA for the Privacy Act, no court has provided the term "agency," as used in the Privacy Act, with the same interpretation which excludes from the plain language the President's personal staff and units whose sole function is to advise and assist the President. Recognizing the very different purposes to the two statutes serve, this court will not be the first.

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. . . the concerns of the Privacy Act are quite different. When passing FOIA, Congress was addressing the need for individuals to have access to government information. When passing the Privacy Act, Congress was addressing the need for individuals to have protection for their privacy concerns. In interpreting the word "agency" to exclude, under FOIA, the immediate staff of the President, the courts recognize, as Congress did, that the access provided by FOIA must be limited. However, no court had found, and there is no evidence that the privacy protections provided by Congress in the Privacy Act must also be necessarily limited.

June 12, 1997 Memorandum Opinion at 5-6. Indeed, the Court's holding was entirely consistent with a key admission by FBI director Louis J. Freeh that "Filegate" constituted "egregious violations of privacy . . . without justification." See Statement of Louis J. Freeh, Director, FBI, dated June 14, 1996, attached as Exhibit 1, at 1. In short, based on the plain wording of the statutes, as confirmed by the admission of FBI Director Freeh, EOP knew, or should have known, that the Privacy Act applied to its acquisition of FBI files of Republicans and White House Travel Office employees.

EOP now tries to resurrect its same, failed argument by claiming that legal memoranda dating as far back as the1970's -- long before President Clinton ever occupied the White House -- somehow demonstrate that the Clinton White House lacked the requisite state of mind to be held liable for violating the Privacy Act. EOP's latest attempt to avoid responsibility for "Filegate" cannot succeed. Not only do these memoranda not state what EOP claims, but EOP's motion fails to demonstrate that anyone in the Clinton White House was even aware of their existence, much less reviewed them at any relevant time. Surely, if the Clinton White House had been aware of these memoranda when it filed its motion to dismiss more than two (2) years ago, EOP would have cited them in that earlier, motion -- rather than having "hung back" for this period of time.

Most importantly, however, on Thursday, October 15, 1998, former Associate White House Counsel William Kennedy, who was responsible for overseeing OPS at the time the FBI background investigation files were unlawfully obtained and who supervised Craig Livingstone and Anthony Marceca, testified that, not only had he never reviewed any memoranda from prior administrations concerning the applicability of the Privacy Act to the White House, but he believed the Privacy Act did, in fact, apply to the White House. Thus, Mr. Kennedy's testimony is dispositive of any claim EOP might make about the Clinton White House lacking the requisite degree of intent. EOP's motion must, respectfully, be denied, as it is frivolous.⁽²⁾

II. Discussion.

Judgment on the pleadings can only be entered against a party where, after the close of the pleadings, no material fact remains in dispute and the moving party is entitled to judgment as a matter of law. Transworld Products Co., Inc. v. Canteen Corp., 908 F. Supp. 1 (D.D.C. 1995). The standard of review on a motion for judgment on the pleadings is virtually identical to the standard for a motion to dismiss. Id. at 2. The Court cannot dismiss a complaint unless it appears beyond a doubt that the plaintiff can present no set of facts in support of its claim that would entitle the plaintiff to relief. Id. The Court also must accept as true all factual allegations and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Id.

Although entitled a "motion for judgment on the pleadings," EOP's motion does not rest on the pleadings themselves. Rather, EOP goes beyond the pleadings by referring to legal memoranda dating back to the Ford, Carter and Reagan White Houses. At the same time, however, EOP's bizarre motion cannot be treated as motion for summary judgment because the it has failed to include any sworn affidavits with these materials. For example, there is no sworn testimony that anyone in the Clinton White House was aware of these memoranda, much less even reviewed them. (To the contrary, the sworn testimony of Associate White House Counsel William Kennedy confirms that they were not reviewed by the Clinton White House). It is particularly important that such evidence be presented given that an organization itself cannot form an "intent," but can only act through its personnel, and that key personnel at the White House turn over at least every eight years. See, e.g., Louisiana Power & Light Co. v. United Gas Pipe Line Co., 642 F. Supp. 781, 803 (E.D.La. 1986) ("a corporation, being a de jure person, cannot by itself have a mental state of any kind . . . it can only have, and be liable for, the mental states of its various employees . . . ."). The telling lack of any sworn affidavits attesting to the fact that key actors in the "Filegate" scandal were aware of and reviewed these memoranda at any relevant time demonstrates that they are nothing more than long-forgotten documents that most likely were archived, off premises, years ago, and "re-discovered" only when EOP believed, however mistakenly, that it was in even deeper legal difficulty than originally admitted by FBI Director Freeh. Ironically, far from negating any evidence of wrongful intent, the memoranda demonstrate that the Clinton White House knew, or should have known, that it was subject to the Privacy Act.⁽³⁾ Thus, not only are the memoranda not dispositive of Plaintiffs' Privacy Act claims, but they actually support Plaintiffs' claims.

In any event, even if EOP had presented sworn affidavits in support of its motion, Plaintiffs have presenting ample, sworn evidence to the contrary, and issues of intent cannot be resolved without a trial, as this is an issue for the trier of fact -- here the jury -- to decide. Mazaleski v. Truesdell, 562 F.2d 701, 717 (D.C.Cir. 1977); see also Staren v. American National Bank & Trust Co., 529 F.2d 1257, 1261 (7th Cir. 1976) ("questions of motivation or intent are particularly inappropriate for summary judgment."); Zilg v. Prentice-Hall, Inc., 515 F. Supp. 716, 719 (S.D.N.Y. 1981) ("intent is therefore peculiarly inappropriate to be decided on a motion for summary judgment."); 10A C. Wright, A. Miller and M. Kane, Federal Practice and Procedure: Civil 2d, � 2730, at 238 (2d ed. 1983). Consequently, EOP's motion must fail for this reason alone.

A. Discovery Has Yielded Evidence of Intentional Conduct.

After confirming that the Privacy Act, on its face, applied to EOP, the Court allowed Plaintiffs to undertake discovery into analogous instances of misuse of information in government files to allow Plaintiffs to demonstrate a continuing course of conduct that belies the Clinton Administration's claim that "Filegate" was an "innocent bureaucratic snafu." Specifically, the Court held that Plaintiffs could undertake discovery on "other matters bearing on the obtaining and misuse of government files in order to create the inference that it is reasonable to conclude that FBI files were obtained and misused in the instant case." Memorandum Order of April 13, 1998 at 6. During the course of this discovery, Plaintiffs have, indeed, uncovered a pattern of misuse of information in government files that can only have resulted from intentional conduct.

For example, during the course of this discovery Plaintiffs uncovered the facts behind the unlawful dissemination by Clinton political appointees of information from Ms. Linda Tripp's confidential, Department of Defense personnel file, as well as the facts behind the unlawful release of documents from Clinton White House files on Ms. Kathleen Willey. On August 17, 1998, the President himself testified before the Lewinsky grand jury that the letter(s) Ms. Willey wrote to him were taken from White House files and released to the media, and that the letter(s) "shattered" Ms. Willey's credibility:

You know what evidence was released after the '60 Minutes' broadcast that I think pretty well shattered Kathleen Willey's credibility.

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But , now when '60 Minutes' came with the story and everybody blew it up, I thought we would release it. But I do not believe we were required to release White House documents to the Jones lawyers.

Excerpt from President Clinton's Grant Jury Testimony as published by The Washington Post, attached as Exhibit 2, at 8, 9 (Emphasis added). In addition, at his March 16, 1998 deposition, presidential smearmeister James Carville testified that President Clinton called him and discussed with him the release of these documents, not only directly implicating Carville in this unlawful conduct, but further demonstrating that the decision to release Ms. Willey's letter(s) was intentional. Carville Depo. at 239-40. ORM Director Terry Good testified that the letter(s) were obtained from files maintained by ORM and retrieved by searching for Ms. Willey's name in ORM's computer. Depo. at 189; 226-227; 257; 265-66. Mr. Good also testified that he obtained files maintained by ORM on Ms. Linda Tripp and Ms. Monica Lewinsky by searching for their names in ORM's computer. Depo. at 273-74; 277; 279; 282-85. In fact, it is likely that the White House maintains personnel and other government records on Ms. Tripp that are similar, if not identical to the personnel and other records maintained by the Department of Defense, and that information from Ms. Tripp's White House personnel file was released to Jane Mayer of The New Yorker magazine, which in turn enabled her to ask Assistant Secretary of Defense for Public Affairs Kenneth Bacon and his principal deputy, Clifford Bernath, for the information without implicating the White House directly.⁽⁴⁾ Importantly, both releases of information concerning Ms. Willey and Ms. Tripp took place well-after this Court confirmed that the Privacy Act applied without exception to EOP. It simply cannot be claimed that these incidents were anything but intentional violations of the Privacy Act.

Plaintiffs' deposition of Mr. Carville uncovered further evidence of the central role Clinton smearmeister James Carville, who "declared war" on Independent Counsel Kenneth Starr and just recently threatened to destroy House Speaker Newt Gingrich, has played in the Clinton Administration's campaign against not just perceived adversaries, but material witnesses and investigators as well. Carville produced to Plaintiffs voluminous files that he maintains on such individuals and organizations which the White House views as material witnesses and adversaries.⁽⁵⁾ A partial list of these files is attached as Exhibit 4. Among these files were numerous documents faxed to Carville from the Clinton White House concerning Independent Counsel Kenneth W. Starr, former FBI agent Gary Aldrich, a likely witness in this case, and Republican strategist Donald Sipple, among others. One such document was an article criticizing Judge Starr. Another such document was a highly critical memorandum about Gary Aldrich, the former FBI agent who authored a book about his tenure at the Clinton White House. See Collective Exhibit 5. Another article about Republican strategist Donald Sipple, which includes excerpts apparently from Sipple's divorce proceedings, was sent to Carville by the White House Chief of Staff's Office. Id. Plaintiffs also uncovered a Carville "target" list to "target key Republican players used in attacks against the Administration" including Independent Counsel Starr, Speaker Gingrich, House Government Reform and Oversight Committee Chairman Dan Burton, and others. See Exhibit 6. Because these White House documents were likely kept in a "system of records,"⁽⁶⁾ their release to Carville constitutes yet more violations of the Privacy Act, 5 U.S.C. � 552a.

Carville is not the only Clinton advisor who maintained and is maintaining files concerning perceived adversaries and material witnesses against the President. Lanny Davis, a former "Special Counsel to the President" who now appears on television, with White House blessings and coordination, to try to defend President Clinton in the myriad of scandals confronting him, testified at deposition that, while working in the Clinton White House Counsel's Office, he maintained a system of records on Clinton adversaries and material witnesses including Judge Starr, Senator Fred Thompson, Chairman Dan Burton, House Judiciary Committee Chairman Henry Hyde, Monica Lewinsky, Kathleen Willey and David Hale. Davis Depo. at 195-200; 216-17; 221; 224-26; 233-34. Davis also admitted to maintaining files on Larry Lawrence, Roger Tamraz, Doris Matsui, Webster Hubbell, Nora and Gene Lum, John Huang, Pauline Kachanalak, Johnny Chung and Charlie Trie. Id. at 219-21; 236; 239. Many of these files are identified, either in whole or in part, by individuals' names, such as "Starr," "Monica Lewinsky," "Kathleen Willey" and "John Huang." Id. at 195; 221; 224-25; 326. Davis also testified that he was "eclectic" in his judgment as to what to put in such files, and that he would generally include any document that he might need to use at some point. Id. at 196-97. Such documents included public statements and stories by the media.⁽⁷⁾ Id. at 196. Yet, Davis admitted that the media "frequently does not" publish accurate information. Id. at 256. Davis also admitted that he maintained these files so that he could disseminate information to the media, despite the Court's having confirmed that the Privacy Act applies to EOP without exception. Id. at 204-06. Yet Davis also admitted that, before releasing information from any of these files to the media, he never consulted with anyone referenced in the materials, never sought their permission, and knew of no one at the Clinton White House who did so. Id. at 241-42. Again , despite the Court's ruling that the Privacy Act applies to the EOP without exception, Davis admitted that, since leaving the Clinton White House in January, 1998, he continues to receive information from the Clinton White House, including Ms. Kathleen Willey's letter(s) to the President, before his many television appearances. Davis Depo. at 100-02; 106; 116-17; 121-22; 125; 140-41; 144-45; 389-95.

Further evidence of intent to violate the privacy rights of Plaintiffs and others include, but is not limited to:

(1) The fact that The White House knowingly requested the FBI files of Republicans "who were no longer working there." Mari Anderson, Craig Livingstone's assistant, testified to Judicial Watch that she, Livingstone and Anthony Marceca were aware that Republicans, such as James Baker and Marlin Fitzwater, no longer had access to the White House, but that their FBI files were obtained anyway. See Excerpt from Anderson Senate Deposition, attached as Exhibit 7, at 99-101, 111; Anderson Depo. at 354-60.

(2) The fact that The White House ignored numerous warnings about Craig Livingstone's fitness for the extremely sensitive job of running the Office of Personnel Security:

(a) His supervisor, Associate White House Counsel William Kennedy, questioned his fitness for the job, worrying about both his professional qualifications and temperament. See Kennedy Depo. at 201-202, 259-60, 273-74.

(b) Democrat Senator Dennis DeConcini recommended that Livingstone should be replaced with a professional careerist, but his recommendations were ignored by the White House. See Excerpts from House Report, attached as Exhibit 8, at 10, 104-5.

(c) Craig Livingstone retained his job despite problems uncovered in his FBI background check and his having threatened to beat the face in of a female neighbor. See Exhibit 8, at 10, n. 26.

(d) Craig Livingstone was reprimanded by Evelyn Lieberman, Assistant to the Chief of Staff for Mrs. Clinton, "for discussing the details of a background investigation with a young female staffer." Id.

(e) Secret Service entry logs indicate Craig Livingstone's access to the White House residence when he had no logical reason for being there, other than perhaps to share FBI files with its occupants. Indeed, a "check out" log of FBI files from his office shows a six (6) month "gap" -- from March 29, 1994 to September 21, 1994 -- where there are no entries, reminiscent of the eighteen (18) minute gap in the Nixon tapes during Watergate. See Secret Service Entry Logs, attached as Exhibit 9.

(3) The denials, in the face of contrary testimonial and documentary evidence, issued by the President and Mrs. Clinton, that the Craig Livingstone was hired at the direction of Mrs. Clinton. If Craig Livingstone did nothing wrong and innocently requested the FBI files of at least 900 staffers for previous Republican administration, then why would the President and Mrs. Clinton be so quick to downplay any links to him? Indeed, William Kennedy, Craig Livingstone's supervisor, disingenuously refused to take responsibility for any improper or illegal activity that Livingstone may have engaged in as head of OPS. Kennedy Depo. at 209-210.

(4) The fact that Anthony Marceca has asserted his Fifth Amendment privileges. Potential prosecution under the Privacy Act, among other federal statutes, is likely a key concern of Mr. Marceca.

(5) The admission by William Kennedy that FBI materials have not been returned to the FBI. Kennedy Depo. at 99-100. Indeed, based on the evidence, Plaintiffs have reason to believe that FBI files concerning Republicans are still at the Clinton White House.

Clearly, this evidence of misuse of information in government files is exactly the type of evidence that the Court declared was relevant and probative of Defendants' intent in unlawfully obtaining Plaintiffs' FBI files. See, e.g., July 10, 1998 Memorandum Opinion at 22. Not only is it strong evidence that the Clinton White House's obtaining of Plaintiffs' FBI files was not the "innocent bureaucratic mistake" it has claimed, but it demonstrates a continuing pattern of unlawful use of information in government files, without regard to any legal prohibitions against doing so, that can only be the result of intentional conduct. Moreover, to claim that the obtaining of FBI files on Republicans is justifiable because there was no "intent" to violate the Privacy Act is ludicrous. The act of obtaining the files themselves reeks of "intent," since there is no justification for having them in the first place, as admitted by FBI Director Freeh.

Furthermore, discovery in this matter is still underway, and is likely to yield further evidence of this same pattern of misuse of information in FBI and government files, as well as direct evidence of intentional misconduct.⁽⁸⁾ For example, Ms. Linda Tripp, whom Plaintiffs have sought to depose, has stated that she saw FBI files being loaded onto a computer in the White House Counsel's Office. See Brian Bloomquist, "Tripp: Telling the Truth's Very Easy," The New York Post, July 1, 1998, attached as Exhibit 10. Such clearly improper usage of FBI files would obviously belie any claims of an "innocent" snafu. Likewise, Ms. Tripp reportedly has stated that she saw FBI files "stacked up close to the ceiling" in Associate White House Counsel William Kennedy's Office. See CBS News Transcript, Monday, July 6, 1998, attached as Exhibit 11. Mr. Kennedy admits that Ms. Tripp was in his office on at least two occasions, and he literally choked when asked if he had seen Republicans' files. Kennedy Depo. at 140-43; 186-88; Video excerpt, attached as Exhibit 12. When asked if he reviewed FBI files on James Baker, Kennedy was initially, speechless. Kennedy Depo. at 216-17; Video Excerpt, attached as Exhibit 12. Plaintiffs expect to elicit testimony from Ms. Tripp on these subjects when the Court allows her deposition to go forward. In light of the ample evidence already uncovered, however, it simply cannot be said, much less can it be said beyond doubt, that Plaintiffs can present no set of facts in support of their claim that would entitle them to relief. Transworld Products Co., 908 F. Supp. at 2.

B. Associate Counsel William Kennedy Admitted at Deposition that the Privacy Act Applies to EOP.

Even more important than this already compelling evidence of intentional conduct, however, is a key admission made by former Associate Counsel William Kennedy, who was responsible for overseeing OPS and supervising Craig Livingstone and Anthony Marceca. Kennedy Depo. at 67-68. At his October 15, 1998 deposition, Mr. Kennedy testified that he believed the Privacy Act applied to him when he worked in the Clinton White House Counsel's Office, and that providing materials to the media would violate this and other applicable laws:

[By Plaintiffs' Counsel] During your period of time at the White House, it wasn't your practice, was it, to disseminate materials in violation of the Privacy Act, correct?

[By Mr. Kennedy] No, sir.

[By Plaintiffs' Counsel] And you understood that you had to adhere to the strictures of the Privacy Act?

* * *

[By Mr. Kennedy] To the extent that the Privacy Act applied to what I was doing, then I had to comply with it. I had to comply with the law; yes, sir.

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[By Plaintiffs' Counsel] And you understood that it did apply in certain circumstances?

* * *

[By Mr. Kennedy] Mr. Klayman, to the extent that it applied to what I was doing, yes, sir, it would apply, to the extent that it applied . . . .

[By Plaintiffs' Counsel] You understood that you couldn't take documents out of government files and send them to the media, correct?

[By Mr. Kennedy] Absolutely. There would be a general prohibition against that. I mean, but there would be many other prohibitions against doing that other than the Privacy Act.

Excerpt from Kennedy Depo., attached as Exhibit 3, at 73-74; 76-77 (Emphasis added).

Mr. Kennedy's admission fully comports with similar admissions made by ORM Director Terry W. Good, who admittedly housed the inevitable overflow of FBI files for Craig Livingstone and OPS [brought about by the illegal acquisition from the FBI]. Good Depo. at 296-301; 358-59. At his July 30, 1998 deposition, Mr. Good admitted that the White House Counsel's Office and the Department of Justice had briefed ORM on the Privacy Act with respect to records generated by the President's and Mrs. Clinton's Health Care Task Force. Good Depo. at 55-57; 386-387. Obviously, if ORM was being briefed about the Privacy Act's requirements in the context of handling Health Care Task Force records, then it must have known that the Privacy Act applied to it. Thus, for the two main offices involved in the unlawful obtaining of Plaintiffs' FBI files -- OPS and ORM -- testimony from the heads of both of these offices demonstrates that they knew the Privacy Act applied. EOP's disingenuous claims to the contrary -- based only on twenty-plus year old memoranda buried in archives that none of the relevant actors even claim to have reviewed at any relevant time -- are simply without merit.

C. Associate Counsel William Kennedy Admitted at Deposition that He Never Reviewed Any Such Memoranda.

At deposition, Mr. Kennedy also admitted that he never reviewed any such legal memoranda concerning the applicability of the Privacy Act to EOP:

[By Plaintiffs' Counsel] . . . did you ever see documents generated by prior administrations before the Clinton Administration discussing whether or not the Privacy Act was applicable to the White House.

[By Mr. Kennedy] I do not recall seeing any such documents.

[By Plaintiffs' Counsel] Did anyone bring such documents to your attention?

[By Mr. Kennedy] I don't recall that being the case; no, sir.

[By Plaintiffs' Counsel] Do you remember anyone ever discussing any such documents while you were at the White House Counsel's Office.

[By Mr. Kennedy] No, sir; I do not remember the issue coming up.

Kennedy Depo. at 74-75. Clearly, if Mr. Kennedy, the person in charge, and no one else in the Clinton White House ever reviewed these memoranda at any relevant time, then the memoranda simply cannot exculpate the Clinton White House from being held liable for intentionally violating the Privacy Act.

D. The Memoranda Themselves Demonstrate that the Clinton White House Knew, or Should Have Known, that the Privacy Act Applies to EOP.

The memoranda themselves are not exculpatory in any event. In fact, they confirm that, as early as 1975, it was understood by the Ford White House that the Privacy Act applied to EOP. Contrary to the Court's ruling, the Ford White House believed that there was only a single, limited exception to the Privacy Act's EOP-wide applicability. However, the Ford White House also believed that a case-by-case analysis was necessary to determine whether this single exception applied. Specifically, in 1975, James T. Lynn, Director of the Office of Management and Budget ("OMB"), which was and is part of EOP, sought a legal opinion about whether the Privacy Act applied to it. In an April 14, 1975 memorandum, then-Assistant Attorney General Antonin Scalia wrote:

Concerning the issue of which particular units within the Executive Office of the President are covered by the definition, I enclose for your use a copy of that portion of an earlier memorandum dealing with the question.⁽⁹⁾ More specific advice will have to be rendered on a unit-by-unit basis, with full information concerning the precise function and makeup of the particular component of the Executive Office involved.

See April 14, 1975 Memorandum, attached to EOP's motion as Exhibit 1, at 2 (Emphasis added). Far from exculpating the Clinton White House, this memorandum demonstrates that the Clinton White House should have known -- as Mr. Kennedy, in fact, admitted -- that the Privacy Act applied to EOP and that, at a minimum, a case-by-case analysis was necessary to determine if a single, limited exception to the Privacy Act's EOP-wide applicability applied. The Clinton White House has never demonstrated that it undertook such a case-by-case analysis with respect to the Privacy Act's applicability to OPS and ORM. Indeed, any such conclusion would have been contrary to Mr. Kennedy's admission that the Privacy Act did apply.

The February 15, 1978 memorandum to the Carter White House demonstrates that it too understood that the Privacy Act applied to the EOP. However, the memorandum demonstrates that the Carter White House also believed, albeit erroneously and without legal justification given the plain language of the statute, in a single, limited exception for members of the President's immediate personal staff or a unit in the Executive Office whose sole purpose is to advise and assist the President:

You have asked for your opinion regarding the effect of the Privacy Act on a proposal for the White House and various agencies and departments to maintain and share information about Members of Congress which could be used by the Executive Branch when various legislative matters come before the Congress for a vote.

* * *

You first ask whether the White House computer could be used to maintain a file on each Senator and Representative containing such information as the individual's name, party, State, committee assignments, White House contact, other contacts, roll call votes, vote counts, and other contacts throughout the Administration with the particular Senator or Representative.

We have previously advised the White House that . . . limiting language in the Conference Report on the Freedom of Information Act has the effect of exempting the identified persons and units from the Privacy Act as well. Presumably, the files regarding Members of Congress would be maintained under the control of a member of the President's immediate personal staff or a unit in the Executive Office whose sole purpose is to advise and assist the President in, inter alia legislative matters.

See February 15, 1978 Memorandum, attached to EOP's motion as Exhibit 3, at 1-2 (Emphasis added). Here, the issue was whether a computer program containing information on members of Congress could be maintained by EOP without violation the Privacy Act. Nowhere, however, does the Clinton White House present any evidence of a similar analysis being undertaken to determine whether EOP could maintain FBI files or other information on individuals in a "system of records" without violating the Privacy Act, much less whether OPS and ORM were "units" "whose sole purpose is to advise and assist the President." Obviously, this is because no such analysis was ever undertaken and because, as Mr. Kennedy and Mr. Good testified, it was understood that the Privacy Act did, in fact, apply to both OPS and ORM. Indeed, as this Court ruled, the plain language of the statute provides that EOP is covered by the Privacy Act. June 12, 1997 Memorandum Opinion at 5.

Importantly, this same memorandum also set forth other requirements of the Privacy Act, and thereby should have alerted the Clinton White House further to the requirements of the Privacy Act: First, each agency would have to keep an accurate accounting of all disclosures of information from the system of records, except for disclosures to personnel of the agency concerned on a need-to-know basis. . . . These accountings would have to be made available upon request to each [individual] to whom the record pertained.

* * *

Also, under 5 U.S.C. � 552a(d), an agency is required to allow the individual to whom a record pertains to review the record, to request a correction, and to file a statement of his position if the agency refuses to correct the record as requested. The disagreeing statement must be released along with any disclosure of information. This would grant each [individual] complete access to, and a right to object to, all information pertaining to him in the [system of records].

* * *

Finally, the agency would have to publish in the Federal Register a notice of the special system of records about Members of Congress and describe the routine uses made of the information. 5 U.S.C. � 552a(e)(4). This would require the agency concerned to state the nature of the information in the records, its use . . . , and the fact that it is occasionally shared with . . . other agencies.

See February 15, 1978 Memorandum, attached to EOP's motion as Exhibit 3, at 9.

At issue in the April 1, 1982, Reagan Administration memorandum, which actually is a supplement to a related, February 22, 1982 memorandum concerning FOIA, was whether the Privacy Act would apply to certain records stored in Office of Administration ("OA") computers, but generated elsewhere. Citing the April 14, 1975 memoranda from then-Assistant Attorney General Antonin Scalia and the February 15, 1978 memoranda, the April 1, 1982 memorandum merely reiterates the belief, albeit erroneous, about the limited exception for members of the President's immediate personal staff or a unit in the Executive Office whose sole purpose is to advise and assist the President. See April 1, 1982 Memorandum, attached to EOP's motion as Exhibit 5, at 2-3. It then concluded that, because the White House was to maintain exclusive control and dominion over the information at all times, storing records in OA computers would not effect their status vis-a-vis the Privacy Act. Id. at 5-6.

By noting the exception -- erroneous as it is -- the April 1, 1982 memorandum again confirms the rule: the Privacy Act does, indeed, apply to EOP. Because the Clinton White House failed to demonstrate that any analysis was undertaken to determine whether this exception -- as erroneous as it was -- exempted OPS and ORM from the Privacy Act, it does not relieve of the Clinton White House of any wrongful intent, particularly when the plain language of the statute expressly states that the Privacy Act applies.

III. Conclusion.

EOP's latest attempt to assert the same, failed argument this Court previously rejected years ago cannot succeed. Far from negating any wrongful intent, the facts developed to date and memoranda EOP now present demonstrate that prior Administrations have long understood that the Privacy Act applied to EOP. Clearly, the Clinton White House knew this as well, as is demonstrated by the admissions of Associate Counsel William Kennedy, the supervisor in charge of the infamous FBI files. Even if this were not the case, EOP's motion could not succeed in any event, because it has failed to present any sworn testimony demonstrating that any of the key actors in "Filegate" were aware of the allegedly exculpatory memoranda -- which in reality actually implicate the Clinton White House further -- much less reviewed them. Indeed, Associate Counsel William Kennedy also admitted that he was not aware of any such memoranda, nor did he review any.

Clearly, now that a patter of intentional misuse of government files has been confirmed in discovery, EOP's motion is a frivolous, "Hail Mary" attempt to avoid legal accountability. In light of the substantial evidence of intentional conduct that Plaintiffs have already uncovered, as well as the additional, substantial evidence they are likely to uncover, assuming summary judgment is not entered for Plaintiffs later, it is obvious that only a jury will be able to resolve this matter after a full trial on the merits. EOP's motion for judgment on the pleadings must, respectfully, be denied.

Respectfully submitted,

JUDICIAL WATCH, INC.

__________________________

Larry Klayman, Esq.

DC Bar No. 334581

__________________________

Paul J. Orfanedes, Esq.

DC Bar No. 429716

__________________________

Allan J. Favish, Esq.

501 School Street, S.W.

Suite 725

Washington, DC 20024

(202) 646-5172

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on October 30, 1998 a true and correct copy of the foregoing PLAINTIFFS' OPPOSITION TO EXECUTIVE OFFICE OF THE PRESIDENT'S MOTION FOR JUDGMENT ON TH E PLEADINGS mail on the following:

Attorneys for Defendants Federal Bureau of Investigation and Executive

Office of the President:

James J. Gilligan, Esq.

Elizabeth J. Shapiro, Esq.

Julia Fayngold, Esq.

U.S. DEPARTMENT OF JUSTICE

P.O. Box 883

Washington, DC 20044

Attorneys for Defendant Hillary Rodham Clinton:

David E. Kendall, Esq.

Paul B. Gaffney, Esq.

Marcie R. Ziegler, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, DC 20005

__________________________

Paul J. Orfanedes

1. The FBI files were maintained by OPS initially. However, OPS obtained so many [illegally obtained] files that it ran out of storage space and had to transfer the files to ORM. See Good Depo. at 296-301; 358- 59.

2. Plaintiffs have invoked Rule 11 of the Federal Rules of Civil Procedure and have this day asked EOP's counsel to withdraw its motion within twenty-one (21) days.

3. EOP's argument is non-sensical. It attempts to exonerate the Clinton White House from being held accountable for the misuse of government files simply by making its usual claim of ignorance of the law. As the Court noted, however, the statute is clear on its face. See June 12, 1997 Memorandum Opinion at 5.

4. Importantly, Ms. Tripp's FBI file was also obtained by the Clinton White House over a year after she began to work for White House Counsel Bernard Nussbaum. At that time, Ms. Tripp probably showed signs of becoming a whistleblower and, before transferring her to the Pentagon, the White House reacted accordingly by obtaining "dirt" on her. Tripp's FBI file is probably where the White House learned of her prior arrest record. When Ms. Tripp finished her grand jury testimony on July 29, 1998, she stated: "As a result of simply trying to earn a living, I became aware between 1993 and 1997 of actions by high government officials that may have been against the law. For that period of nearly five years, the things I witnessed concerning several different subjects made me increasingly fearful that this information was dangerous, very dangerous to possess." See Text of Linda Tripp's Remarks, attached as Exhibit 3. Ms. Tripp's statement lends credence to this scenario, which will be confirmed once she is deposed. Importantly, the White House likely still has possession of her FBI file, as Kennedy testified that once materials are obtained, they are archived and not sent back to the FBI. Kennedy Depo. at 99-100.

5. Included among these individuals and organizations are Congressman Bob Barr, Congressman Jack Kingstone, Arkansas Governor Mike Huckabee, the Hon. David Sentelle, GOPAC, the Olin Foundation, Landmark Legal Foundation, Jacob Stein, GOPAC, Paula Jones, Susan Carpenter McMillan, philanthropist Richard Mellon Scaife, Floyd Brown, David Hale, and numerous others. Carville himself produced files on Larry Klayman and Judicial Watch, Inc., which contained materials he or his agents obviously sent to the District of Columbia Bar Counsel in his now failed bar complaints.

6. On October 27, 1998, Plaintiffs served a second set of document requests on Defendants designed to confirm this.

7. Even press clippings, newspaper articles and media reports maintained in a "system of records" are protected by the Privacy Act. Clarkson v. IRS, 678 F.2d 1368, 1372 (11th Cir. 1982); Murphy v. NSA, 2 Gov't Disclosure Serv. (P-H) � 81,389 at 82,036-27 (D.D.C. September 19, 1981); see also OMB Guidelines, 40 Fed.Reg. 56, 741, 56,742 (1975).

8. Plaintiffs have moved the Court for authorization to take additional depositions. See Plaintiffs' Motion For Authorization to Take Additional Depositions. In addition, Plaintiffs were able to obtain the important evidence they have found despite the fact that they were stonewalled for months in their efforts to obtain documents. The Clinton Administration unilaterally sought to delay its production of responsive documents to Plaintiffs by insisting that documents only be produced on a "rolling" basis. Even just recently, long after the Court rebuked the Clinton Administration and Clinton Justice Department Counsel for this obviously improper approach to discovery, the FBI produced additional boxes of documents to Plaintiffs that should have been produced months earlier. Indeed, documents are still "rolling" in, on the Clinton Administrations's own strategic timetable. Id. at 3-4. This is why Plaintiffs have pursued discovery as they have, as explained and set forth in Plaintiffs' Motion for Authorization to Take Additional Depositions.

9. The Clinton Justice Department has failed to include the memorandum to which now-Justice Scalia referred.