Segment 11 Of 22 Previous Hearing Segment(10) Next Hearing Segment(12)
SPEAKERS CONTENTS INSERTS
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Answer. I don't know if the President has documents in his personal possession. I'm not sure if I can answer that question.
EXAMINATION BY MR. DHILLON:
Question. So it's possible, then, that the President does have documents in his personal possession that would be responsive to this committee?
Answer. Either you misunderstood my answer or I misunderstood your first question. How about asking the first question again. You said—why don't you ask it to me. You said something about the documents to the President?
Question. I asked a question and I received a satisfactory answer, so I'm going to go on to the next question, which is: Is it possible that the President has documents in his personal possession that have not been produced to this committee?
[Witness conferred with counsel.]
The WITNESS. To my knowledge, no.
Mr. MCLAUGHLIN. I'm sorry; were you given a chance to explain your answer? I think there was a disconnect.
The WITNESS. There was a disconnect. But——
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Mr. MCLAUGHLIN. I'd like you to say whatever you think is important to say on the record.
Mr. EGGLESTON. That's all.
Mr. MCLAUGHLIN. Okay. As long as it's clear.
EXAMINATION BY MR. DHILLON:
Question. Who certifies for the President personally that documents in his possession have been turned over, or that he has no such responsive documents?
Answer. I don't know.
Question. Have you ever seen such a certification from the President personally, or from someone acting on his behalf, that he has or does not have any documents responsive to a request of this committee?
Answer. I don't recall ever seeing that.
Question. Has the President personally ever provided the Counsel's Office with any documents responsive to this committee's subpoena or subpoenas?
Answer. Could you explain what you mean by ''the President personally''?
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Question. Documents coming from the President himself.
Answer. We have received documents from Oval Office Operations. I don't recall the President himself personally sending over responsive documents. But Oval Office Operations covers the area that the—of the Oval Office, which is where the President's office is.
Question. Who in the Oval Office Operations procedure certifies that documents have been produced or could not be found or do not exist?
Answer. I don't know. I don't recall. I should say as I sit here, I don't recall.
Question. Is the First Lady's office provided with subpoenas, directives, letter requests, or——
Answer. I believe so. Yes. Yes, they are.
Question. Has the First Lady herself ever provided Counsel's Office with any documents responsive to subpoenas or directives or letter requests?
Answer. We have received documents from the First Lady's office.
Question. And who certified that the document—or that the search was complete?
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Answer. I don't recall.
Question. Are you aware of the President taking any notes at coffees?
Answer. No.
Question. Are you aware of any attendees who said that the President took any notes at coffees?
Answer. I am not.
Question. Has anyone asked the President for notes that he may have taken at coffees?
Answer. I don't know.
Question. We are placing for, and you asked to be marked as Exhibit 1, the March 4, 1997, subpoena issued by this committee, and I'd ask that you review it.
[Nionakis Deposition Exhibit DN–1 was marked for identification.]
[Note.—All exhibits referred to may be found at end of deposition on p. 595.]
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[Witness complies.]
The WITNESS. I've flipped through it.
EXAMINATION BY MR. DHILLON:
Question. Do you recognize Exhibit 1?
Answer. It looks like the March 4th subpoena that we received.
Question. When was the first time you saw Exhibit 1?
Answer. I believe March 5th.
Question. I'm sorry, what day did you begin working at the White House Counsel's Office?
Answer. Either the 1st or 2nd of March. It may have been the last day of February; I'm not sure exactly.
Question. Okay. So you were already employed at the White House Counsel's Office at least for a few days when this arrived, when Exhibit 1 arrived?
Answer. Yes, that's right.
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Question. As part of your responsibilities in the White House Counsel's Office, have you ever dealt with Exhibit 1 in any way?
Answer. Yes.
Question. How?
Answer. I responded to it.
Question. Were you given the responsibility of responding to Exhibit 1 or to any part of Exhibit 1?
Answer. Several of us worked on responding to Exhibit 1.
Question. And who—would you please identify those people?
Answer. Mike Imbroscio, Karen Popp, Michelle Peterson. I think that's—among the associate counsels, I think that's it, yeah.
Question. Who assigned you to respond to Exhibit 1?
Answer. Lanny Breuer.
Question. And when did that occur?
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Answer. I don't recall.
Question. Did the Counsel's Office issue any memos or directives regarding Exhibit 1?
Answer. Yes.
Question. And approximately when was—well, what was issued?
Answer. I believe it's the April 28th directive.
Question. Were there any other directives issued by the Counsel's Office regarding Exhibit 1?
Answer. There may have been; I'm not sure.
Question. Was anyone assigned to locate and produce documents related specifically to coffees?
Answer. I don't recall.
Question. Did anyone take it upon themselves, during the course of producing or responding to Exhibit 1, to respond to or to look for coffee-related documents?
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Answer. I don't recall.
Mr. DHILLON. Exhibit 2, now. We place before you what I will ask to be marked as Exhibit 2. On April 18, 1997, a letter from John Rowley, former chief counsel, to Lanny Breuer, Special Counsel to the President. Could you please review Exhibit 2.
[Nionakis Deposition Exhibit DN–2 was marked for identification.]
[Witness complies.]
Mr. MCLAUGHLIN. When we reach a logical breaking point, could we take a bathroom break in the next 5 or 10 minutes?
Mr. DHILLON. That's fine with me. How about a five-minute break now? It's a fairly long document and he's reviewing it. Why don't we take a bathroom break now. Off the record for five.
[Recess taken from 2:20 p.m. to 2:25 p.m.]
EXAMINATION BY MR. DHILLON:
Question. Do you recognize—have you had a chance to review Exhibit 2?
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Answer. I briefly reviewed it, yes, sir.
Question. Do you recognize Exhibit 2?
Answer. I recognize it as a document—yes, I do.
Question. What is it?
Answer. It's a document sent by John Rowley to Lanny Breuer dated April 18, 1997.
Question. Were you involved in any discussions with this committee that led to the preparation of Exhibit 2?
Answer. I believe so, yes.
Question. Besides yourself, who else in the Counsel's Office were involved in such discussions?
Answer. I believe Lanny Breuer and Karen Popp. That's all I can recall right now.
Question. Who did you have your discussions with in this—in the committee's office regarding this matter?
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Answer. Barbara Comstock, John Rowley, I believe Andrew McLaughlin was at some of the meetings. I believe Ken Ballen was, Phil Barnett, and David Bossie. And there may have been others.
Question. When was the first time you saw Exhibit 2?
Answer. On or soon after it was sent to us. I really don't recall exactly when.
Question. Were any other members of the Counsel's Office provided with a copy of Exhibit 2?
Answer. I believe so, yes.
Question. What is your understanding of why certain items are in bold face on Exhibit 2?
Answer. I have no idea.
Mr. MCLAUGHLIN. Do you want him to read the instruction on the letter?
EXAMINATION BY MR. DHILLON:
Question. Would reading that help refresh your recollection?
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Mr. EGGLESTON. Why don't you just direct him?
The WITNESS. Can you direct me? If there is a particular——
Mr. MCLAUGHLIN. How about the first full paragraph on page 2? Is your question whether Mr. Nionakis can read the instructions and report back to you——
EXAMINATION BY MR. DHILLON:
Question. No my question is do you know why it is in bold face?
Mr. EGGLESTON. You guys put it in bold face. Unless it is written here, it is fully in your control. Why are you making him guess?
Mr. DHILLON. I am not asking him to guess. When he was part of this——
Mr. MCLAUGHLIN. I think he testified that——
Mr. DHILLON [continuing]. I am asking—if you would let me ask the question, I think we will get——
Mr. MCLAUGHLIN. Let me make my statement. We are making a record here.
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Mr. DHILLON. You can make your statement when it is time to ask your questions.
Mr. MCLAUGHLIN. I am making a statement——
Mr. DHILLON. I withdrew the question. You have no statement to make.
Mr. MCLAUGHLIN [continuing]. To make sure there is a clear record.
Mr. DHILLON. I withdraw the question.
EXAMINATION BY MR. DHILLON:
Question. I would ask you to review page 2.
Mr. MCLAUGHLIN. I just to make clear that your prior question, now withdrawn, mischaracterizes Mr. Nionakis's testimony.
Mr. DHILLON. If you want to make statements about questions that are not pending, that is your business.
The WITNESS. Okay. Your question is?
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EXAMINATION BY MR. DHILLON:
Question. To your knowledge, what was your understanding of why certain items are boldfaced in Exhibit 2?
Answer. I have no independent understanding as to why documents were—why certain things were boldfaced in this document.
Question. After reviewing it, do you have a understanding of why they were boldfaced?
Answer. I can only—I don't have an understanding. I only read Mr. Rowley's words that say: ''We request all other priority items (as indicated in boldface) by Monday, April 28, 1997.''
Question. Did you use this document in any way in responding to the committee's subpoena which is marked Exhibit 1?
Answer. Yes.
Question. Did you understand when responding when using this document that the items in boldface were considered a priority by the committee in terms of production from the White House?
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The WITNESS. Could you read that question back?
[Reporter read the record as requested.]
The WITNESS. I don't recall.
EXAMINATION BY MR. DHILLON:
Question. How did you use Exhibit 2 to respond to the committee's subpoena which is marked at Exhibit 1?
Answer. As I had mentioned earlier, some of the—several if not many of the requests were either overbroad or unduly burdensome, and that we tried to modify them and limit them, and this document was the result of that attempt to limit the scope of various requests.
Question. Did you treat the categories or subgroups of requests differently based upon the priority this committee assigned to them as demonstrated in Exhibit 2?
Answer. I recall there were certain categories of documents that we made a very, very valiant attempt to produce as soon as possible.
Question. Was that based on the fact that they were prioritized in Exhibit 2?
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Answer. I don't think so. I think it was based on the discussions that we had with the committee members—with the committee staff. I just don't recall specifically whether it was off of this document or after our discussions.
Question. Did the White House Counsel's Office use Exhibit 2 in any way to prioritize the documents it would search for in responding to the subpoena which is marked as Exhibit 1?
Answer. We may have. I don't recall, because we had many, many discussions as well.
Question. Was it your understanding that information about the coffees were considered a priority item by the committee?
Answer. I don't recall.
Question. Exhibit 3. I'm asking that Exhibit 3 be placed before you and that it be marked as Exhibit 3. It is an April 28th, 1997, memorandum from Charles F.C. Ruff and I would ask that you please review it.
[Nionakis Deposition Exhibit DN–3 was marked for identification.].
[Witness complies.]
The WITNESS. Okay.
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EXAMINATION BY MR. DHILLON:
Question. Do you recognize Exhibit 3?
Answer. Yes.
Question. What is it?
Answer. It is the April 28th, 1997 directive.
Question. Who wrote Exhibit 3?
Answer. It was I believe initially drafted by Michael Imbroscio. I reviewed the draft as well. And I think others may have looked at it; I just don't recall.
Question. Did Mr. Ruff ultimately review Exhibit 3, if you know?
Mr. EGGLESTON. He signed it.
The WITNESS. I only know that he signed it.
EXAMINATION BY MR. DHILLON:
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Question. Did you——
Answer. Hold on.
[Witness conferring with counsel.]
The WITNESS. I'm fine.
EXAMINATION BY MR. DHILLON:
Question. Did you make any changes to the draft you received from Mr. Imbroscio?
Answer. I don't recall.
Question. In preparing Exhibit 3, did you use any other documents to help you—I'm sorry. Strike that.
Did you use any documents to help you prepare Exhibit 3?
Mr. MCLAUGHLIN. In reviewing Exhibit 3?
Mr. EGGLESTON. He testified he did not prepare Exhibit 3.
EXAMINATION BY MR. DHILLON:
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Question. To review Exhibit 3?
Answer. I don't recall.
Question. What did you do or what was done with Exhibit 3 after it was finalized?
Answer. I understand that it was sent to—sent throughout the EOP using our mail room process.
Question. How many different offices or groups or units would it have been—was it sent to?
Answer. I only know that it would have been many.
Question. Do you have—I take it you received responses to it, which is how you know that it was sent out?
Answer. That's correct.
Question. Did anyone tell you it had been sent out?
Answer. I know that it had been sent out because people called in and had questions about it. So.
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Question. You said it was distributed through—I'm sorry, the mail room, did you say?
Answer. I think like any large structure, there's an inner office mail system. It was distributed using that system.
Question. It wasn't faxed; it was mailed out?
Answer. I don't know if it was faxed to certain places. I don't know how that inner office process works. I just know that that is the mechanism that was used to distribute this. If that is sometimes by hand and sometimes by fax, I'm not sure. But that's the system that was used.
Question. Were Exhibits—and they're still before you, so you refer can to them if you need to—were Exhibits 1 and 2 distributed in a similar fashion?
Answer. I don't know.
Question. Did you receive any responses to Exhibit 3?
Answer. Yes.
Question. And who did you receive responses from?
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Answer. Various offices within the EOP.
Question. You have already previously described the process you used when we were talking generally about responses to directives.
Answer. Uh-huh.
Question. Was that process in any way different with respect to this directive?
Answer. To the best of my recollection, no.
Question. With respect to this directive, were people assigned to any particular areas or individuals that they were to obtain documents from or about?
Answer. I don't believe so, no.
Question. Was anyone——
Answer. I don't recall.
Question. Was anyone assigned to or did anyone take it upon themselves to focus on the coffees?
Answer. I think you asked me that before. I didn't recall then and I don't recall.
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Question. Just so we are clear, now I'm asking and I'm going to skip through a lot of this. I asked you that question. Now I am asking specifically about this directive.
Answer. Same answer. I don't recall.
Question. Was the procedure for reviewing the documents the same as already described with respect to this directive?
Answer. Basically it's the same process, yes.
Question. You said ''basically.'' Were there any differences with respect to this directive than what you just described?
Answer. I don't recall any differences, no.
Question. With respect to responding to this directive, did you ever bring any documents to anyone's attention to assist them in preparing for press inquiries?
Answer. I don't recall doing that, no.
Question. Did you ever bring any documents to anyone's attention for any other reasons?
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Answer. I don't recall doing that, no.
Question. Did Mr. Davis have any role in gathering, reviewing, or producing the documents that were responsive to——
Answer. No.
Question [continuing]. Exhibit 3?
Answer. I'm sorry.
The WITNESS. Why don't you read that back.
[Reporter read the record as requested.]
The WITNESS. Other than his own documents that he provided to us in response to the directive, no, he did not.
EXAMINATION BY MR. DHILLON:
Question. Did anyone from any of these offices or groups or units ever ask—that the directive had been sent to, ever ask you any questions about the kind of records being requested by Exhibit 3?
Answer. Could you clarify that question?
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Question. Did you ever receive a phone call from somebody who received Exhibit 3 asking ''what do you want?''
Answer. No.
Question. Did you ever receive any other inquiries of any personal or by internal memo or by letter asking questions regarding what was being requested by the directive?
Answer. Yes.
Question. What sort of—what kind of inquiry did you receive? I'll do general and then we will break it down into individuals.
Answer. I can only recall generally, and it was generally is this kind of—I've got this kind of stuff, is this kind of stuff responsive? Is this the kind of stuff that you think would be responsive? Is this the kind of stuff that I should send to you? More guidance-type questions.
Question. How often did that occur, approximately?
Answer. I can't recall exactly.
Mr. EGGLESTON. And you're talking about in response to this directive?
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Mr. DHILLON. Yeah. Let's back up.
The WITNESS. I'm only speaking about this directive.
EXAMINATION BY MR. DHILLON:
Question. That's right, yes.
Answer. I know it happened several times. I can't guess as to how many times it happened.
Question. Do you recall any of the offices or agencies or entities that called you with such a question?
Answer. No, I don't.
Question. Did the military office ever call?
Answer. No, not to my recollection.
Question. Did WHCA ever call?
Mr. MCLAUGHLIN. By WHCA, you mean the White House Communications Agency?
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EXAMINATION BY MR. DHILLON:
Question. Yes, that's what I mean. I'll refer to it as WHCA from now on.
Mr. MCLAUGHLIN. And it's abbreviated W-H-C-A.
The WITNESS. I don't recall WHCA ever calling me with any questions about the April 28th directive.
EXAMINATION BY MR. DHILLON:
Question. Do you recall WHCA ever calling you with any questions about anything?
Answer. With respect to responding to this directive, no.
Question. How about with respect to anything else?
Answer. Yes.
Question. And what did they call you about?
Mr. EGGLESTON. Well, I mean, as you guys probably know, as I'm sure Ms. Comstock does know, he becomes involved after October 2nd or 3rd, if you want him to get into that line of questions. But if the question is prior to October 2 or 3, which may be a better question to ask——
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Mr. DHILLON. I assume that, and I'd like his response to that, and then I will break it down.
The WITNESS. Sometime after October 3rd, I was working with WHCA to produce responsive videotaped events.
EXAMINATION BY MR. DHILLON:
Question. Prior to October 3rd, did WHCA ever contact you?
Answer. To the best of my knowledge, no.
Question. Prior to——
Answer. Recollection, no.
Question. Prior to October 3rd, did you ever contact WHCA?
Answer. I don't recall ever contacting WHCA.
Question. Now, prior to distributing Exhibit 3, was anyone in the White House searching for documents responsive to the committee's subpoena which is marked as Exhibit 1?
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Answer. I recall that some of the requests on the March 4 subpoena from this committee had been already requested or had been already been part of a previous directive.
Question. And which directive was that?
Answer. I believe a directive went out in December of '96, I think a follow-up went out in January of '97.
Question. Have you seen—did you ever see those directives?
Answer. I recall seeing them at some point.
Question. Did you ever respond to them? I'm sorry, let me back up. Let me ask another question. Were you ever in the process of collecting documents in response to the directives?
Answer. Those directives went out prior to my tenure at the White House. I don't recall ever working to gather documents to respond to those directives or the requests encompassed by those directives.
Question. When was—what were those directives in response to?
Answer. I really don't know.
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Question. Were documents being produced pursuant to those directives at the time you arrived at the White House?
Answer. I don't recall that they were.
Question. So from the time—so from the time Exhibit 1 was provided to the White House, which is the subpoena, to the time Exhibit 3 was distributed to the White House——
Answer. Uh-huh.
Question [continuing]. Was anyone in the White House searching for or producing documents responsive to the committee's subpoena?
Mr. MCLAUGHLIN. Other than the ones that had been encompassed in prior directives?
Mr. DHILLON. No, that's not my question.
The WITNESS. Could you read his question back?
[Reporter read the record as requested.]
The WITNESS. I recall that we were.
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EXAMINATION BY MR. DHILLON:
Question. Now, how did that process occur?
Answer. I'm sorry, which process?
Question. Well, as I understand it, Exhibits 1 and 2 were never sent out to anybody in the White House. Only Exhibit 3 was. How was it that responsive offices, units, groups or agencies could respond to the committee's subpoena prior to April 28th, 1997, the date of Exhibit 3?
Answer. Let me give you an example. There were documents, I believe—the March 4—this is an example. The March 4th subpoena requested documents relating to John Huang. The December directive, my recollection is that the December directive also asked people to provide all documents that relate to John Huang.
We were in the process of trying to gather any documents that had been collected in response to that directive, get them ready and prepare them for production to this committee, given that this subpoena asked for John Huang-related materials. There were other requests that were similar to that one.
Question. Okay. So in other words, tell me if I'm correct, the White House had already collected documents responsive to the two directives, and you were sorting through those after you received this committee's subpoena to determine what in those documents was responsive to the committee's subpoena marked as Exhibit 1?
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Answer. Yes, that was one of the things we were doing, yes.
Question. Now, the directives—but—I'm not sure of this so I'm going to ask you again. Do you recall why the directives or what the directives were responsive to? Were they requests from a committee or from the Department of Justice or what?
Mr. EGGLESTON. The December '96, January '97 directives?
Mr. DHILLON. Yes.
Mr. EGGLESTON. Because there are a lot of directives in this matter. More than two.
Mr. DHILLON. The two that you mentioned.
The WITNESS. I don't recall.
EXAMINATION BY MR. DHILLON:
Question. Other than the material that had been gathered pursuant to the directives, were any other areas of the White House being searched between the time the subpoena, which is marked Exhibit 1, was provided to the White House, and the time Exhibit 3 was sent out to all the various offices and agencies of the White House?
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Answer. I don't recall specifically, but generally, I recall that we were trying to at least locate areas where responsive materials may be and anticipate searching those areas for documents, if we hadn't already started searching those areas.
Question. That was in addition to culling out the documents that were responsive to the directives—January and December directives?
Answer. That's correct.
Question. Were you doing anything else during that period of time? I mean by ''you,'' you or the White House Counsel's Office doing anything else to respond to the committee's subpoena?
Answer. We may have been. I don't recall specifically.
Question. The two directives, the December '96 and the January '97 directive, did not cover all of the same material as the directive marked Exhibit 3; is that correct?
Answer. I don't recall. I don't know.
Mr. DHILLON. Let's go to Exhibit 4. I'm having placed before you, and I will ask to be marked Exhibit 4, a June 27, 1997, letter from Mr. Charles F.C. Ruff.
[Nionakis Deposition Exhibit DN–4 was marked for identification.]
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The WITNESS. Okay.
EXAMINATION BY MR. DHILLON:
Question. Do you recognize Exhibit 4?
Answer. Yes.
Question. What is it?
Answer. It is a letter from Charles Ruff to Chairman Burton dated June 27, 1997.
Question. Did you assist in the preparation of Exhibit 4?
Answer. I believe I did.
Question. What did you do?
Answer. I believe I assisted in drafting this letter.
Question. At the time Exhibit 4 was—you were preparing Exhibit 4, were you aware of any documents or things that were not being produced to this committee?
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Answer. I was not aware.
Question. Have there been document productions following the presentation of Exhibit 4 to the Chairman? Let me ask the question better——
[Pager interruption.]
Mr. DHILLON. Who is beeping?
[Discussion off the record.]
EXAMINATION BY MR. DHILLON:
Question. After providing the Chairman with this letter, were there additional document productions from the White House Counsel's Office?
Answer. Yes.
Question. How many productions have there been since the June 27th letter which is marked as Exhibit 4?
Answer. I don't know.
Question. How did those come about?
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Answer. I can't recall specifically how they came about.
Question. Or where did the additional documents come from?
Answer. I know that some were e-mails. They came from our archived e-mails.
Question. Were you aware at the time you prepared this letter from Mr. Ruff that—well, let me back up. was somebody searching for the e-mails in the White House Counsel's Office?
Answer. At some point, someone was searching for them, yes.
Question. When did that search begin?
Answer. I don't know.
Question. Who was searching for the e-mails?
Answer. I don't know specifically who was searching for them.
Question. Were e-mails responsive to the committee's subpoena, which is marked as Exhibit 1?
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Answer. I believe we produced e-mails to this committee and, therefore, I believe that they were probably responsive to the committee's subpoena.
Question. Do you know what offices the additional productions came from? And by that I'm referring to productions that followed the June 27th, 1997, letter marked as Exhibit 4.
Answer. I don't recall the offices.
Question. Were you involved in the production of any documents after June 27th, 1997, to this committee?
Answer. With respect to this March 4 subpoena?
Question. Yes.
Answer. I may have been. I don't recall specifically.
Question. Since June 27th, 1997, to today, what have you been doing with respect to—what have you been doing at the White House Counsel's Office?
Answer. I continue to work on investigative matters.
Question. Do you continue to search for documents responsive to the committee's subpoena which is marked Exhibit 1?
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Answer. I don't believe I do. I don't believe I continue to do that, no.
Question. When did you cease searching for documents responsive to the committee's subpoena?
Answer. I don't recall, but the one clarification I want to make is that if in the process of searching for documents responsive to another request, and if documents responsive to this March 4 subpoena arise or surface, we will produce them to this committee. And that is precisely what I believe is one point Mr. Ruff makes in Exhibit 4, and that is if we locate them, regardless of when we do, and how we do, we will promptly produce them to this committee.
Question. Have you personally been involved in when that has occurred?
Answer. Yes, I have been.
Question. Under what circumstances—strike that. When?
Answer. One example—one example I recall is some documents relating to either Trie or John Huang—and Barbara can remember because I had a long conversation with her.
Mr. EGGLESTON. Ms. Comstock.
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The WITNESS. Ms. Comstock, excuse me. But documents relating to Charlie Trie—I believe it was Charlie Trie; if it wasn't Charlie Trie, it was John Huang—surfaced and I called up Ms. Comstock and told her that we had found these documents and we arranged for their production.
EXAMINATION BY MR. DHILLON:
Question. How did the documents surface?
Answer. I don't recall specifically, but I'm sure I explained it to Ms. Comstock. I just don't recall.
Question. And approximately when did this occur?
Answer. I believe it was late summer. I believe it was August, maybe.
Question. Any other similar type events occur that you were personally involved in?
Answer. I don't recall any.
Question. Is there anyone in the White House Counsel's Office who is personally looking for documents responsive to the committee's subpoena marked as Exhibit 1?
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Answer. To the best of my knowledge, no.
Question. And when did the Counsel's Office cease searching for documents responsive to the committee's subpoena?
Answer. I don't know that there was a specific date when we sat around a table and decided that we were completely finished searching for documents.
[Witness conferring with counsel.]
The WITNESS. And I just want to add what I said before, and that is that if we find responsive stuff, regardless of how we find it or when we find it, if it is responsive to the March 4th subpoena, we will arrange to promptly produce them to this committee.
And by the same token, if the committee believes that there is outstanding material and the committee comes forward and makes a request, we will do our best to make sure that we gather all the responsive documents.
EXAMINATION BY MR. DHILLON:
Question. At the time you began your employment in the White House Counsel's Office, did you have any knowledge about videotaping or audiotaping conducted at the White House?
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Answer. None whatsoever.
Question. When did you first learn about the existence of WHCA?
Answer. I don't recall.
Question. You are aware of what WHCA is?
Answer. I am now, yes.
Question. Do you recall when you became——
Mr. EGGLESTON. As does the whole country.
The WITNESS. As well as the entire country.
EXAMINATION BY MR. DHILLON:
Question. You'd cut out a lot of questions if you said you didn't have the foggiest notion what I was talking about.
Under what circumstances did you learn about WHCA?
Answer. As I previously stated, I don't recall when I learned about WHCA. And I also don't recall specifically what the circumstances were that I learned about WHCA. At some point I learned about WHCA. How and when it happened, I just don't recall.
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Question. There have been a lot of events occurring that related to WHCA in the last 30 days.
Answer. That's correct.
Question. Did you—to the best of your knowledge, did you know that WHCA existed prior to these events occurring?
Answer. I may have, which is why I keep saying I don't recall. I may have known about WHCA prior to these events occurring, I just—I'm not sure if I did. And if so, I don't recall when.
Question. Have you personally ever received any responsive documents to either the committee's subpoena or to any request from WHCA?
Answer. Again, as my counsel stated earlier, prior to these events occurring, no.
Question. And let's be clear when we talk about prior to these events occurring, you had attached a date to that, October 2nd or 3rd, I believe?
Answer. October 2nd.
Question. Have you ever attended an event where the President was present and the event was being videotaped or audio taped?
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Mr. MCLAUGHLIN. By anybody?
Mr. EGGLESTON. I was about to say.
Mr. DHILLON. By anybody.
Mr. MCLAUGHLIN. By TV cameras, personal tape recorders——
Mr. EGGLESTON. That's enough.
Mr. DHILLON. The answer is yes.
The WITNESS. At the time I was at the event, I did not know it was being videotaped. As I sit here today, it probably was videotaped.
EXAMINATION BY MR. DHILLON:
Question. What event was that?
Answer. I attended a radio address with my parents.
Question. When was that?
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Answer. That would have been in August of this year.
Question. Besides your parents, yourself and the President, who else was present?
Answer. A lot of other people.
Question. From a specific group or do you recall?
Answer. I know—there were a couple of other White House staff people whom I just know by face, and the other people, I just don't recall who they were.
Question. Now, you said that at the time you didn't know it was videotaped but now you think it was. Could you clarify what you mean by that?
Answer. My understanding is that WHCA——
Mr. EGGLESTON. Your understanding today?
The WITNESS. My understanding today is that WHCA typically or generally videotapes the President's radio address. So knowing what I know now, I think it is quite probable that that radio address was videotaped.
EXAMINATION BY MR. DHILLON:
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Question. And that was August of this year?
Answer. Yeah.
Question. Do you recall seeing a camera at the event?
Answer. I recall seeing a photographic camera, because ultimately I was photographed.
Question. Do you recall seeing a video camera?
Answer. I don't really recall seeing a video camera, no.
Question. Where was the radio address?
Answer. The radio address I attended was in the Oval Office.
Question. And how many people were present?
Answer. Maybe 80.
Question. Have you attended any other events where the President was present and the event was being videotaped or audiotaped?
Answer. To the best of my knowledge, I don't believe I have.
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Question. Do you meet with the President on a regular basis?
Answer. No, I don't. Even you had to laugh when you asked that question.
Question. How many times you have personally met with the President, excluding the radio address?
Answer. I wouldn't really call that encounter a personal meeting with the President. I have——
Mr. EGGLESTON. You and 80 other people.
The WITNESS. That's correct. I have been in the presence and greeted and exchanged greetings with the President on several occasions. I don't—I can't really count exactly how many.
EXAMINATION BY MR. DHILLON:
Question. Were video cameras present at those times?
Answer. I only recall photographic cameras.
Question. Still cameras? Still photos?
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Answer. Still photos, photographic cameras, right.
Question. No movie cameras?
Answer. I don't remember movie cameras, camcorders, video cameras.
Question. Now, prior to October 2nd, 1997——
Answer. Uh-huh.
Question [continuing]. Did you ever attend any meetings with anyone or anyone mention that there may exist audiotapes or videotapes responsive to any subpoena or document request?
The WITNESS. Could you read that back?
[Reporter read the record as requested.]
The WITNESS. I had a brief conversation with Michael Imbroscio when he recounted his conversation with somebody from the Senate committee where that staff person inquired about clandestine audio recordings in the Oval Office. The possible existence of such recordings.
EXAMINATION BY MR. DHILLON:
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Question. Besides that, any other meetings where that came up?
Answer. Prior to October 2nd, 3rd, no.
Question. At any meeting—at any of your team or group meetings did anyone ever mention WHCA prior to October 2nd, 1997?
Answer. They may have; I don't recall.
Question. When was that meeting or discussion with Mr. Imbroscio?
Answer. I don't recall.
Question. What did he say?
Answer. He said that a Senate committee staff member had made this inquiry.
Question. And what was your response?
Answer. I found it an incredible inquiry.
Question. Did anyone ever ask the President whether such a system existed? Let me rephrase that so I'm clear on the ''system.'' Your conversation with Mr. Imbroscio focused on a clandestine recording system in the Oval Office; is that correct?
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Answer. That's not necessarily accurate.
Question. Okay.
Answer. He recounted a conversation that he had had with a person on the Senate committee. In that conversation with that person, that person inquired about the possible existence of clandestine audio recordings in the Oval Office.
Question. Did anyone ever ask the President if such a system or such recordings were made or existed?
Answer. I don't know.
Question. Were you involved in any way in ascertaining whether such taping, clandestine taping occurred in the Oval Office?
Answer. I was not involved.
Question. Let's—prior—did anyone ask at one of these meetings or any other time, anyone else in the Counsel's Office about this sort of clandestine taping?
Answer. I don't know.
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Question. Did anyone ask anyone in the President's office about clandestine taping?
Answer. I don't know.
Question. Prior to October 2nd, 1997, what did you do to locate audio or videotapes responsive to any document request or subpoena?
Answer. I was not involved in doing any of that.
Question. Were you notified about the existence of certain videotapes that relate to coffees on or about October 2nd, 1997?
Answer. Yes.
Question. Who told you about those?
Answer. Can we go off the record for a second?
Mr. DHILLON. Sure.
[Discussion off the record.]
The WITNESS. In the evening of October 2nd, I had a brief discussion with Michael Imbroscio in which he informed me that certain responsive videotapes had been located. I had bumped into him in our document room. I was in the process of doing something and so it was a very quick exchange. That was when I first learned about responsive videotapes. I did not know at that time that they related to coffees.
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Mr. MCLAUGHLIN. By October 2nd, you mean the Thursday?
The WITNESS. Yes, the Thursday, that Thursday evening.
EXAMINATION BY MR. DHILLON:
Question. What was the next—let's go through the sequence of events that occurred with respect to the tapes and your involvement. What was the next thing that occurred?
Answer. With respect to the videotapes?
Question. Yes, we are talking just about the videotapes. And you have spoken to Mr. Imbroscio on the second Thursday. What happened next?
Answer. October 2nd.
Question. October 2nd, yes.
Answer. The next day, Friday morning, we had a meeting and that is when I became aware that the videotapes related to coffees.
Question. You say ''we.'' Who are we talking about?
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Answer. People in the Counsel's Office.
Question. Who was present?
Answer. I recall Chuck Ruff, Lanny Breuer, Cheryl Mills, Michael Imbroscio, and there were probably other people there, I just don't recall who.
Question. What was discussed?
Answer. Among other things, that these videotapes had been located and that we would be producing them.
Question. What was your—what was the next step? Was anyone assigned a task with respect to the videotapes at that meeting?
Answer. I'll refer to Michael Imbroscio's testimony, but I believe——
Mr. EGGLESTON. His public testimony.
The WITNESS. His public testimony. I believe he handled the copying or overseeing the copying and the production of those tapes.
EXAMINATION BY MR. DHILLON:
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Question. Were you involved in that process at all?
Answer. No, I was not.
Question. Did you ever review the videotapes before they were produced to any entity?
Answer. No, I did not.
Question. Have you reviewed the videotapes since?
Answer. No, I haven't. I will qualify. I will say I've seen the snippets of them, but I've not reviewed the videotapes of the coffees.
Question. Were you involved, except for that meeting and the conversation you had with Mr. Imbroscio on October 2nd, were you involved in any way in the preparation or production of videotapes to any investigative group or agency?
Answer. I had one conversation with Barbara Comstock on—Ms. Comstock on Sunday, and told her that she would be receiving copies of the tapes that afternoon.
Question. Okay. And what prompted that call to Ms. Comstock?
Answer. I had received a message from her asking her to call—to call her.
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Question. How did you obtain the information that you passed on to her?
Answer. I believe I spoke to either Chuck Ruff or Lanny Breuer.
Question. Except for that, were you involved in any way with respect to the review, location, and production of the videotapes?
Answer. Relating to the coffees?
Question. Yes.
Answer. No.
Question. What about relating to fund-raisers, were you involved in that process?
Answer. Yes.
Question. Okay. When did that process begin?
Answer. I believe it began sometime during the week of the 6th of October.
Question. And what was your responsibility with respect to noncoffee videotapes? Let me ask you this, how best do you characterize the videotapes that you were involved in? Were they fund-raising videotapes?
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Answer. They were videotapes relating to DNC events.
Question. Okay.
Answer. Those were fund-raising and nonfund-raising.
Question. What was your involvement with respect to those videotapes?
Answer. I oversaw the review of those tapes, and worked with WHCA to copy those tapes, the ones that needed to be copied. And they ultimately were the production of those tapes to the various investigative bodies.
Question. Were you involved in the identification of responsive tapes?
Answer. Yes.
Question. And how did—describe how that process worked.
Answer. We had—we, the Counsel's Office, obtained logs of the videotapes from WHCA. We then reviewed those logs, reviewed them against the President's schedule to locate potential responsive events. We then sat down and reviewed the tapes of those events.
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Question. And when you say ''we,'' who are you referring to besides yourself?
Answer. Other people in the Counsel's Office.
Question. Who were?
Answer. Karl Racine—I believe he and I did most of the reviewing.
Question. Where did you review the videotapes?
Answer. In WHCA.
Question. Did you review the originals?
Answer. Yes. We reviewed the originals.
Question. Did somebody retrieve those and put those in the machine for you, or were you doing that yourself?
Answer. They were retrieved from the archives by WHCA. Steps were taken to ensure that there was no possibility of any accidental recording.
Question. Recording over?
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Answer. Recording over of the original. And then we sat in WHCA and reviewed them in the presence of other—in the presence of WHCA staff.
Question. What steps were taken, very briefly, to ensure that the tapes were not recorded over?
Answer. Like a cassette, the—these are Beta cassettes, but like an audio cassette, there is a tab that could be removed that prevents any recording. Those tabs—I was told that those tabs were removed. Also, on the actual video machine, there's a button that you can press that says—it says something like ''antirecord'' or—it prevents any—even if I hit the record button, I was told that it would not engage, and there would be no recording.
Question. What did you do after you reviewed the tapes?
Answer. Handed them to the WHCA staff and asked them to be copied onto video—onto VHS.
Question. Were there any tapes you reviewed that you did not produce to this committee?
Answer. Yes.
Question. Okay. And what were those? What were on those tapes—back up. Did you you conclude that those tapes were not responsive to the subpoena?
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Answer. To the best of our knowledge, in looking at those tapes, yes.
Question. Approximately how many tapes fell into that category?
Answer. I don't know. I can't recall.
Question. More than five? Less than five?
Answer. It would have been more than five.
Question. More than 10?
Answer. Possibly more than 10.
Question. More than 15?
Answer. Possibly. I just don't know.
Question. What criteria did you use to determine if the tapes were relevant or responsive to the subpoena?
Answer. We tried to locate those events that were sponsored in part or in whole by the DNC, whether they were fund-raising or nonfund-raising events.
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Question. So as an—could you give me—can you give me an example of a tape you reviewed that wasn't responsive to the subpoena, that you determined wasn't responsive to the subpoena.
Answer. A state party fund-raiser that was in no way sponsored by, in part or in whole by the DNC.
Question. You have a specific one in mind?
Answer. No, just one.
Question. You recall——
Answer. Generally, there was some state party fund-raisers that were not sponsored in part or in whole by the DNC.
Question. And the President was obviously present at these fund-raisers?
Answer. Yes.
Question. Any other categories or kinds of tapes that you reviewed that you concluded were not responsive to the subpoena, to the committee's subpoena?
Answer. I don't recall, no.
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[Witness conferring with counsel.]
EXAMINATION BY MR. DHILLON:
Question. After you reviewed the—let's see. After you reviewed the Beta tapes, you asked WHCA to prepare the VHS tapes.
Answer. To record the—these events onto VHS tapes.
Question. And then what did you do with those?
Answer. Well, they did all the copying. And they created several copies. And they provided us with the copies. We had to sign for them. And then we produced them.
Mr. DHILLON. Is this a good time for a break?
Mr. MCLAUGHLIN. Sure.
Mr. DHILLON. I would like to take an opportunity to look at my notes. Can we go off the record?
[Recess taken.]
EXAMINATION BY MR. DHILLON:
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Question. Was the April 28th directive, which is marked as Exhibit 3 that is before you, intended to include this committee's subpoena, which is marked as Exhibit 1?
Answer. To the best of my recollection, it was intended to include many of the requests on the March 4 subpoena.
Question. Okay. You've qualified that by saying ''many.'' Was there a point where certain requests were eliminated?
Answer. Certain requests weren't eliminated. But certain requests may have been encompassed by another directive or were so narrow that we could go directly to that office and get the materials, rather than include it on the directive and either confuse or potentially overburden many other people who we know would not have such documents.
Question. Except for the categories you've just named, was the document, which is Exhibit 3, intended to cover all the other areas that were covered by the subpoena, which is Exhibit 1?
Answer. With—with the prior qualifications and one more, which is that certain requests were held in abeyance and certain requests were modified, in other words narrowed, this directive was used to respond to that subpoena and other requests from other investigative bodies.
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Question. Very briefly, how were requests either modified or held in abeyance?
Answer. On the Exhibit 2, John Rowley's letter to Lanny Breuer, certain requests were held in abeyance by this committee. Certain requests were also narrowed after our discussions with the committee. And that was an agreement that we had reached. And it was like and—and later on verbal requests may have been narrowed. I just don't recall.
Question. I would like to refer to page 2 of Exhibit 3.
Answer. Page 2.
Question. Item B.
Answer. Excuse me, is that item 1-B?
Question. Yes. I believe so. It's the coffees part.
Answer. Uh-huh.
Question. Now, did you receive—do you see that? It relates to coffees?
Answer. Right. Excuse me one second.
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[Witness conferring with counsel.]
EXAMINATION BY MR. DHILLON:
Question. We're on page 2 of Exhibit 3——
Answer. Uh-huh.
Question [continuing]. The section item B relating to coffees.
Answer. Right.
Question. Did you receive any documents or material in response to this item?
Answer. I may have. I don't recall.
Question. Do you recall what you received, if anything?
Answer. Well, I—I don't—I may have received materials. I don't recall whether I did.
Question. Okay. Do you—so you don't recall if you—if you did receive materials, you don't recall who you received them from?
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Mr. MCLAUGHLIN. Are we talking just about item 1-B now?
Mr. DHILLON. Yes. Yes. Just coffees.
The WITNESS. If I did receive materials, which I don't recall, I wouldn't recall who they were from either.
EXAMINATION BY MR. DHILLON:
Question. Do you have any specific recollection about receiving any materials related to coffees in response to the subpoena or—which is Exhibit 1 or Exhibit 3?
Answer. I personally don't recall receiving any materials relating to coffees.
Question. Do you recall——
Answer. I want to say that I know for a fact that we have received materials relating to 1–B, i.e., the coffees.
Question. Do you recall any conversations you had with anybody in the White House, either responding to Exhibit 3 or asking questions about Exhibit 3 that relate to coffees?
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Answer. I don't recall, no.
Question. And that includes receiving any notes written by the President which related to coffees?
Answer. That's correct. I don't recall receiving any such notes.
Question. Did you make any efforts to determine if the President had made any notes relating to coffees?
Answer. I personally do not recall doing that.
Question. Did you have any discussions with anyone regarding the protection of documents or things related to coffees?
Answer. Would you read that back again?
Question. Did you have any discussions with anyone regarding the production of documents related to coffees?
Answer. Other than a general discussion that, on a particular day, we were going to do a document production or perhaps my asking what kinds of stuff we were producing and somebody saying, among other things, you know, X, Y, Z, and some documents relating to coffees. That's the kind of stuff I recall.
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Question. Do you have any specific recollection of such conversations?
Answer. No.
Question. To your knowledge, has this committee received all documents, items, or things in the possession of the White House which relate to the political coffees?
Answer. To the best of my knowledge, we have produced all documents relating to coffees that we have gathered and that we're aware of. I will also say, though, that I believe that there is one document on the last privilege log that you received that is related to a coffee. So you're aware of the existence of that document.
Question. And you've had discussions with other members of the majority counsel regarding the production of that document?
Answer. They have—they have the log. And I don't believe that they have asked any questions about it. But, as always, we are more than happy to engage in that process.
Question. All right. Is the White House Counsel's Office actively looking for documents or records relating to coffees as we speak?
Answer. I don't believe so.
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Question. We talked about documents. Did you also mean, when you say documents, videos, audio tapes? Did you encompass that in your——
Answer. Yes. Documents in any form.
Question. Okay. Are you aware of any tapes being given out to any of the attendees of coffees?
Mr. MCLAUGHLIN. Tapes of what?
Mr. DHILLON. I'm sorry. Thank you.
EXAMINATION BY MR. DHILLON:
Question. Are you aware of any videotapes of the coffees themselves being given to any of the people who attended the coffees?
Answer. I'm not aware of that happening.
Question. Did you ever go to any office or subdivision or unit or—excuse me. Off the record, please.
[Discussion off the record.]
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Mr. DHILLON. Back on the record, please.
EXAMINATION BY MR. DHILLON:
Question. Did you ever follow up on any subpoena or other requests, including Exhibit 3, by talking to a responsive department or group or division or subdivision within the White House to determine if there had been compliance with the committee's subpoena or Exhibit 3?
Answer. I don't recall doing that.
Question. Did you ever attempt to ascertain where responsive documents, documents responsive to the committee's subpoena or to any request would be located within the structure of the White House?
Answer. I believe I've done that.
Question. And under what circumstances did you do that?
Answer. I recall with respect to the Trie documents that I mentioned earlier, the—this committee had made a request for documents related to the security clearance of Charlie Trie. I went to the offices that I thought might have such responsive documents and talked about that with those people. And that's how we yielded these documents.
Question. Now, how did you figure out which offices might be responsible for that request?
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Answer. I determined which offices might be involved with clearance issues and spoke to those people in those offices.
Question. Are you familiar with all of the departments and groups and offices and divisions that comprise the office, executive office of the department?
Answer. Not all of them. I have general knowledge of what some of them do.
Question. Okay. Is there anyone in the Counsel's Office that is familiar with all of them and what they do?
Answer. I'm not familiar with anyone in the Counsel's Office who is familiar with every one of them.
Question. Do you know how many such offices, groups, or units or divisions there are?
Answer. No. I refer to a—an address book to determine—I don't know. I don't know off the top of my head.
Question. Is there anybody in the Counsel's Office that is familiar with the responsibilities of each of those offices, groups, or subdivisions, or units?
Answer. I don't know if anyone in the Counsel's Office has that familiarity with the EOP.
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Question. Did you ever receive response to a request or a directive that seemed, after review, inadequate?
Answer. I don't recall.
Question. Did you ever follow up on any subpoena, document request, or directive by talking to anyone in the military office?
Answer. I don't recall ever doing that.
Question. Did you ever follow up on any subpoena, document request, or directive by talking to anyone in WHCA?
Answer. Prior?
Question. Before October 22nd, 1997.
Answer. I don't recall ever doing that, no.
Question. Who in the White House has been involved with production of documents regarding the Hudson Dog Track?
Answer. I have.
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Mr. DHILLON. Off the record for a minute.
[Discussion off the record.]
EXAMINATION BY MR. DHILLON:
Question. Who was involved in the production of Hudson Dog Track documents which were produced to this committee on October 22nd, 1997?
Answer. Well, there was a production of Hudson Dog Track documents, I believe, to this committee on or about September 13th. We produced some 360 pages of documents relating to the Hudson Casino matter.
Question. Were there any documents produced to this committee on October 22nd, 1997?
Answer. There may have been. I don't know if there were exactly. I don't know.
Question. Were you——
Answer. There may have been on or about October 22nd.
Question. Were you involved in that production?
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Answer. I was involved in a production in October of the Hudson Casino documents, yes.
Question. Does October 22nd sound about right?
Answer. It was about that time.
Question. Was anyone else in the Counsel's Office involved in that production?
Answer. The actual physical production, no. I don't believe so.
Question. Now, with respect to the Hudson Dog Track documents, who in the White House took part in the decision to assert privilege over those documents?
Answer. As a preliminary matter, privilege was not asserted over any of those documents. Those documents were placed on a log, as other documents in the past have been placed on a log, and designated as being subject to privilege.
Question. Who in the White House took part in the decision to make them subject to privilege, the—let me rephrase the question so we're clear.
With respect to the Hudson Dog Track documents, who in the White House took part in the decision to make them subject to privilege?
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Answer. I can speak generally about the process that we go through with respect to privileged documents.
Question. Okay.
Answer. When we find documents that we believe are potentially subject to privilege, they are gathered. And at some point, they are reviewed. And a final decision is made as to whether or not they are subject to privilege.
With respect to those that we determine are subject to privilege, we place those—we describe them on a log, and we produce them to this committee. The added component, then, in this process with respect to the Hudson Casino documents is that, because they were at issue, and subpoenaed in a private litigation, the Justice Department, after our review, reviewed the documents in consultation with the office of legal counsel and determined that they were subject to privilege, put them on a log and filed that log in a private litigation.
Question. That was the civil litigation you had talked about earlier in the deposition?
Answer. That's correct.
Question. Now, with respect to these dog track documents, I want to take you to a point where, before you've sent them over to the Department of Justice, who in the White House made the decision to make a claim that they were subject to privilege?
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Answer. I recall a meeting that Chuck Ruff, Lanny Breuer, Cheryl Mills and I participated in, in which we—during which we reviewed these documents.
Question. And at that meeting, was that when the decision was made to make these documents subject to privilege?
Answer. Not—not really, because, as I said, there was the added step. And so the conclusion at the end of this meeting was we believed—we believed that these documents were subject to privilege. But they had to be sent to the Department of Justice for their review and final determination prior to our putting them on any kind of a log.
Question. When did that meeting occur?
Answer. I don't recall.
Question. How long did it take the Department of Justice to make its decision?
Answer. I only know that it took them a while. I don't recall exactly how long.
Question. More than a month?
Answer. I know this, I know that they finalized their review to the Thursday before they were produced to this committee and filed the actual log in the civil litigation the Friday before these documents were produced to this committee.
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Question. So at the meeting with you and Mr. Breuer and Mr. Ruff, you concluded, the three of you concluded that these documents were subject to privilege subject to review of the Department of Justice—I'm sorry, and Ms. Mills was also at that meeting?
Answer. Yes. That was what I would consider to be our initial determination. But we knew that the next step was that they had to go to Justice.
Question. Did the White House make any other determinations after that determination?
Answer. No.
Question. So you——
Answer. I don't recall us making any other determinations after that one.
Question. So it was—you said it was your initial determination. Was it fair to say it was the only determination the White House made with respect to whether those documents were subject to privilege?
Answer. Prior to—yes. Yes, I believe that's accurate. I say ''initial,'' because that was not the final step in this process is why I say that, because they have to go to Justice.
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Question. It was the final step for the White House Counsel's Office, though; is that correct?
Answer. With respect to reviewing them to determine whether they may be subject to privilege, yes.
Question. Now, when—now I'm only talking about the documents produced on or about October 22nd. When were these documents first discovered?
Answer. I don't recall.
Question. Who discovered them?
Answer. They were provided to Counsel's Office, I believe, by the Office of Records Management.
Question. Were those documents provided in response to the civil subpoena that had come through the Department of Justice?
Answer. I don't recall specifically.
Question. Do you recall when the request came through for those documents?
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Answer. By the civil?
Question. By anyone.
Answer. I don't recall specifically, no.
Question. Do you recall by the civil——
Answer. No, I don't.
Question. Does the White House always send documents to the Department of Justice for privilege determination?
Answer. No.
Question. Was this the first time that that had occurred since you had been there?
Answer. To my knowledge, yes.
Question. And why were these documents sent to the Justice Department for privilege determination?
Answer. They are representing us in that litigation. We are not a party, but they are representing us.
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Question. And you say ''us''?
Answer. Excuse me, the White House.
Question. And how was it that they came to—did they tell you that they were—strike that.
Did the Department of Justice advise you that they wanted to review all documents that you believed were subject to privilege before they could be produced?
Mr. EGGELSTON. Are you talking about in the civil——
Mr. DHILLON. Right. In the civil.
Mr. MCLAUGHLIN. You mean, as lawyers, did they need to fulfill their obligations as lawyers to review documents to be produced in the litigation?
Mr. DHILLON. Let me rephrase the question.
EXAMINATION BY MR. DHILLON:
Question. How did DOJ—with respect to the——
Mr. EGGELSTON. I really need to break.
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Mr. DHILLON. Do you want to break now?
Mr. EGGELSTON. Is that okay?
Mr. DHILLON. Yeah. It's fine.
[Recess taken.]
EXAMINATION BY MR. DHILLON:
Question. I would like to go back to the meeting that you were talking about before the break where the discussion of privilege about these documents occurred.
Mr. Ruff was present, Mr. Breuer, Mr. Mills?
Answer. Ms. Mills.
Question. I'm sorry. Ms. Mills and you?
Answer. That's correct.
Question. And did that meeting occur prior to the production of the documents that you previously referred to, the September production?
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Answer. I don't recall.
Question. With respect to the October production of documents, when were those documents first reviewed by anyone?
Answer. I don't recall that either.
Question. You talked about a September production. Were the documents that were produced—and you said there were how many hundreds of pages?
Answer. I think around 380 pages.
Question. Were the documents that were produced in October part of the set of documents that were produced in September and taken out?
Answer. I don't recall that either.
Question. Oh, I know what we were talking about, the review of documents by the Department of Justice.
Answer. Uh-huh.
Question. Why did the Department of Justice review the documents in this case?
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Answer. They are the ones representing us in this matter. They are the ones who have produced any documents—any White House documents in this private litigation. I don't, and the White House doesn't, directly produce documents to the private plaintiffs. We give our documents, the responsive documents to the Department of Justice. They then turn them over to the private plaintiffs.
Question. Why did you wait for the Department of Justice to rule on whether the documents were subject to privilege before producing the documents to this committee?
[Witness conferring with counsel.]
The WITNESS. We wanted to resolve the issues with respect to the private litigation prior to doing anything with these documents with respect to the—this committee.
EXAMINATION BY MR. DHILLON:
Question. When you say ''we,'' who are you referring to?
Answer. The Counsel's Office.
Question. Who in the Counsel's Office?
Answer. As a collective entity, the Counsel's Office.
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Question. Did Mr. Ruff make that decision?
[Witness conferring with counsel.]
The WITNESS. He did, yes.
EXAMINATION BY MR. DHILLON:
Question. And just so I'm clear, Mr. Ruff decided that no documents that were subject to privilege—are those the only ones that we're talking about here in terms of documents not produced in the September production that relate to the racetrack?
Answer. Could you repeat that?
Question. All I want to talk about—ask you about are documents that are subject to privilege. Actually, let me step back from that. All I want to talk to you about are the racetrack documents that were not produced in September, but were produced in October. Okay?
Answer. Okay.
Question. Was Mr. Ruff's decision—did Mr. Ruff decide not to produce documents subject to privilege to this committee until after the Department of Justice had also reviewed those documents?
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Answer. His decision was to wait until this issue was resolved with respect to the private litigation.
Question. Did the—did Mr. Ruff or anyone in the White House Counsel's Office advise this committee that such documents existed and that there was an additional review being conducted by the Department of Justice?
Answer. I don't know.
Question. How did the Justice Department insert itself into the loop of review?
Mr. EGGLESTON. I think he's really answered that. They produce the documents in the private litigation. I mean——
Mr. DHILLON. Let me ask another question.
Mr. EGGLESTON. I mean the words ''insert in the loop''; they're in the loop.
The WITNESS. They're in the loop.
Mr. MCLAUGHLIN. They're your questions.
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The WITNESS. Yes, that's correct; as I said, they're representing us.
Mr. EGGLESTON. I just want to raise another issue, which is that you're also—I don't want to stop you from asking any questions, but there is currently private litigation involving the Department of Justice acting as attorney to the White House in connection with that litigation. And it's ongoing pending litigation.
And so he's just going to have to be careful about answering some of these questions, because it relates to ongoing pending litigation, and the Department of Justice, as it always does, represents the White House in these matters. It is not unusual to have the Department of Justice represent the White House if they have responsive materials in connection with private litigation. That is the way the system is designed.
EXAMINATION BY MR. DHILLON:
Question. Are the documents that were produced to the committee in October responsive to any committee subpoena?
Answer. They may be.
Question. Why were they produced to the committee?
Answer. Because they—they may be responsive to one of the committee's requests.
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Question. So is it fair to say that these documents were—there was a dual nature to these documents? They were responsive not only to the civil litigation but also to this committee's request or subpoenas?
Mr. EGGLESTON. I think he said ''may be.''
The WITNESS. May be, yes.
EXAMINATION BY MR. DHILLON:
Question. That there were a dual nature then to these documents?
Answer. Maybe, yes. Yes, maybe.
Question. The White House Counsel produced these documents?
Answer. You have these documents.
Question. You concede that in October the White House produced documents to this committee that we are talking about?
Mr. EGGLESTON. This whole discussion has been about documents that are in your possession. If that's the question, the answer to that question is yes.
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EXAMINATION BY MR. DHILLON:
Question. And the White House produced those documents because they were responsive to a request from this committee; is that right?
Mr. MCLAUGHLIN. That is the third time you have asked that question. Do you want to answer?
Mr. EGGLESTON. He's going to say ''may be.''
The WITNESS. They may be responsive to a request by this committee.
EXAMINATION BY MR. DHILLON:
Question. The documents that may be responsive to requests or subpoenas by this committee up until that point had never gone through the Department of Justice for review, had they?
Mr. EGGLESTON. I'm sorry? Did you understand that? These documents or other documents?
EXAMINATION BY MR. DHILLON:
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Question. Other documents except for these documents, the October documents that relate to the racetrack——
Answer. All right.
Question [continuing]. No other documents that were or may have been responsive to this committee's request or subpoena has gone to the Department of Justice for review; is that correct?
[Witness conferring with counsel.]
The WITNESS. To my knowledge, no, because to my knowledge, no other documents that have been requested by this committee were also at issue in a private litigation in which the Department of Justice was representing us.
EXAMINATION BY MR. DHILLON:
Question. So this category of documents, the documents produced in October, were treated differently by the White House Counsel's Office by virtue of the fact that the Department of Justice was involved in civil litigation relating to the documents; is that correct?
[Witness conferring with counsel.]
The WITNESS. Different because they were subject to a subpoena in a private litigation in which the Department of Justice was representing us, the White House.
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EXAMINATION BY MR. DHILLON:
Question. And you had a—there was a meeting where this issue was discussed; is that correct?
Mr. MCLAUGHLIN. Asked and answered.
The WITNESS. What issue?
EXAMINATION BY MR. DHILLON:
Question. Was there a meeting where it was discussed that these documents would be treated differently because they were under the subpoena through the civil action?
[Witness conferring with counsel.]
The WITNESS. We did not discuss treating these differently. We reviewed these documents and the next step, because they were subpoenaed in connection with a private litigation, was the Department of Justice was representing us, they had to go to the Department of Justice next. There was no discussion as to whether or not we were going to treat these documents any differently.
EXAMINATION BY MR. DHILLON:
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Question. Now, when did the dog track documents go to the Department of Justice?
Answer. I don't recall.
Question. Were there any communications to the Department of Justice about Congress, this committee, or the Senate, wanting those documents?
Answer. I don't recall.
Question. Was the Department of Justice told anything about the Congress's requests or needs with respect to those documents?
Answer. I don't recall.
Question. At the time—you were the person who produced the documents in September?
Answer. The White House did. The Counsel's Office did. I'm not sure—I believe I was the person who shepherded them out the door.
Question. At the time those documents were shepherded out the door, were you aware of the existence of the documents that were eventually produced to this committee in October of 1997?
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Answer. I don't recall.
Question. Who at the Department of Justice reviewed the documents? And when I talk about ''the documents,'' from this point on it will be the October 22nd documents.
Answer. The AUSA representing us, representing the White House, his name is David Jones.
Question. Was he the person who did the Department of Justice review?
Answer. He's the person I communicated with. I'm not sure if he was the person who did the review.
Question. Who communicated back to you that the Department of Justice review was complete and what the results were?
Answer. David Jones.
Question. Did you meet with the Department of Justice at any time regarding the decision as to what documents to assert a privilege over?
Answer. I had conversations with DOJ.
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Question. And who would that have been with? David Jones?
Answer. David Jones, I believe I spoke to David Jones about this.
[Witness conferring with counsel.]
The WITNESS. I don't recall speaking to David Jones specifically about the documents and his review or if he reviewed them—the review of the documents. I recall speaking to someone at OLC, Office of Legal Counsel, about this.
EXAMINATION BY MR. DHILLON:
Question. Do you recall who you spoke to?
Answer. Yes.
Question. Who?
Answer. Paul Colborn.
Question. What did you tell Mr. Colborn?
Mr. EGGLESTON. Now, hold it. Let me raise two objections. First, you are inquiring into communications between attorney and client in connection with ongoing private litigation. And I must say it is ongoing, and given the fact that you have these documents, it seems to me that you are doing little here other than trying to advance a private interest in private litigation. There is litigation going on, and maybe litigation that will arise as a result of the assertion of privilege by the White House.
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The WITNESS. If there is an assertion.
Mr. EGGLESTON. If there is an assertion in connection with that. And your asking directly for communications between the Department of Justice and the White House in this matter I think is absolutely inappropriate, and I can't help but concluding that you are attempting to influence private interests. Because otherwise I don't see what this inquiry is about, because you have the documents. The documents have not been withheld from either the Senate or the House; and indeed, I think a few of these documents were actually used by the Senate in connection with its hearings.
[Witness conferring with counsel.]
Mr. EGGLESTON. And I really—finally, let me say I've let this go on quite some distance. But I talked to Ms. Comstock last week and told her that Mr. Nionakis would not be answering questions about this, and she said she would raise it with Mr. Ruff and Mr. Ruff would provide someone else to respond to questions. And since you talked to Mr. Breuer, I assume he has answered the questions.
But I am really not in a position to let them respond to questions about communications between the Department of Justice acting as the lawyer, particularly in a circumstance where it seems to me you already have the documents. And I can't imagine what your interest in this could be, other than advancing private interest in private litigation.
Mr. DHILLON. Are you instructing your client not to answer my question?
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Mr. EGGLESTON. I would very much like to accommodate this with you, but if your question is that—if you're going to ask about communications between Mr. Nionakis and the Department of Justice, I'll refer you back to my conversation with Ms. Comstock of last week, where she agreed that he would raise this issue with Mr. Ruff and Mr. Ruff would provide other people to respond to these questions. So, yes.
Mr. DHILLON. Are you instructing your client not to answer the question?
Mr. EGGLESTON. I am.
Mr. MCLAUGHLIN. I'll just pitch in and say on behalf of the minority, I'm just sitting here like a bump on a log letting these questions go on, but I will second the objections. And just add my own, that the relevance of this line of questioning is not readily apparent to me in light of the fact that we have the documents and that they were in fact turned over to this committee. This seems like once again the committee comes close to crossing the line of self-parody. But that having been said, I will simply add my objection to the record.
[Counsel confer off the record.]
Mr. MCLAUGHLIN. When I can get Mr. Dhillon's attention, I will ask him to state the relevancy of the line of questioning that he has been propounding or he proposes to propound.
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Mr. DHILLON. Your request is so noted for the record.
Mr. MCLAUGHLIN. Mr. Dhillon, you are declining to state on the record the relevancy of these questions?
Mr. DHILLON. The relevance is self-evident, I am certain, to you.
Mr. EGGLESTON. I might say it is not relevant to me. Indeed, I have taken the position that unless the relevance to you is in order to advance a private party litigation, there is no conceivable relevance about communications with the Department of Justice about these documents where they have not been withheld from the committee.
It is certainly not self-evident to me. The only thing that is self-evident to me is if you were taking sides in a private litigation—and it seems to me that the likelihood of this deposition is going to be released at some time in the future, and it will assist a party in connection with private litigation to know about communications between the White House and the Department of Justice, that it otherwise would not be subject to discovery in that private litigation.
I can't imagine that that is the reason that you are doing it, but it is the only conceivable relevance that I can imagine to any issue pending.
Mr. DHILLON. Counsel, just so we are clear, you have advised your client to not answer my previous question, and I would like the reporter to please mark that and do an index of any other occasions when any attorney advises the witness not to answer a question.
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Mr. MCLAUGHLIN. And I will ask the reporter to make an index of all occasions in which majority counsel declines to fulfill his obligations under Supreme Court decision of ''Watkins vs. United States'' to state for the record the logical chain by which the question propounded is relevant to the scope of the investigation. I will identify those occasions for the benefit of the reporter.
Mr. DHILLON. Counsel, I am going to try to proceed, and if you have any other objections, obviously, make them and then if we have to shut down, we will. But I think maybe I can get around this; I'll give it a try.
Mr. EGGLESTON. Look, I don't want to stop you from asking any questions. But I can't let him get into an area that is going to impact on private litigation that is currently pending. I have really let you ask lots and lots about this. You have sort of gotten to the core of a communication, and I don't want to stop you. If you can get around it, so be it, go ahead and do it. I would much rather that be the outcome.
EXAMINATION BY MR. DHILLON:
Question. In your conversations—before I get an objection, please let me finish it.
Mr. EGGLESTON. I've done this before. I'll let you——
Mr. DHILLON. And he's an attorney. I'm sure he will wait to answer the question.
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EXAMINATION BY MR. DHILLON:
Question. In your conversations with Justice Department lawyers or OLC lawyers, did you communicate with them the White House counsel's rationale for making certain documents potentially subject to privilege?
[Witness confers with counsel.]
The WITNESS. Can you read that question back?
[Reporter read the record as requested.]
[Witness conferring with counsel.]
The WITNESS. I don't recall.
EXAMINATION BY MR. DHILLON:
Question. Did you ever talk to a person named Beth Nolan?
Mr. EGGLESTON. About this issue?
Mr. DHILLON. Yes.
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The WITNESS. Never.
EXAMINATION BY MR. DHILLON:
Question. And the person—you already gave us the name of the OLC person you dealt with. Were there any other OLC people that you dealt with?
Answer. No.
Question. Did all the dog track documents go to the Department of Justice at the same time?
Answer. I don't recall.
Question. Were there any meetings with Department of Justice attorneys or OLC attorneys?
Answer. Other than the conversations I've just described, no. To the best of my recollection.
Question. Was the President consulted on any of the documents that were subject to executive privilege?
Answer. I don't know.
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Question. Who in the U.S. Attorney's office in Wisconsin took part in the decision to assert privilege?
Answer. No privilege has been asserted over these documents.
Question. Who in the U.S. Attorney's office in Wisconsin took part in the decision to potentially or to potentially assert privilege to some of these——
Mr. MCLAUGHLIN. That mischaracterizes his testimony, the predicate assumption of the question.
The WITNESS. These documents are designated as being subject to privilege, and the answer to your question is I don't know. I deal with David Jones, the AUSA.
EXAMINATION BY MR. DHILLON:
Question. Who makes the final determination in the White House as to whether a privilege is to be asserted over documents?
Mr. EGGLESTON. If you know.
[Witness conferring with counsel.]
Mr. EGGLESTON. We are back.
Page 878 PREV PAGE TOP OF DOC Segment 11 Of 22
Mr. DHILLON. If you could give us a second.
The WITNESS. Sure.
[Counsel confer off the record.]
The WITNESS. With respect to White House documents, it's my understanding that the President is the person who will determine whether there is a formal assertion of privilege—will make the final determination as to whether there is a formal assertion of privilege.
Mr. DHILLON. I ask that we place before the witness, and ask that it be marked Exhibit 5, a memo from Loretta Avent to Harold Ickes.
[Nionakis Deposition Exhibit DN–5 was marked for identification.]
Mr. DHILLON. I ask that you please review Exhibit 5.
[Witness complies.]
EXAMINATION BY MR. DHILLON:
Question. Do you recognize Exhibit 5?
Page 879 PREV PAGE TOP OF DOC Segment 11 Of 22
Answer. Yes.
Question. What is it?
Answer. I just recognize it as a memorandum from Loretta Avent to Harold Ickes dated April 24th, 1995, and it is one that is in the committee's possession.
Question. And it is one of the documents that was produced on or about October 22nd——
Answer. I believe so, yes.
Question [continuing]. 1997. Who was involved in the decision to assert privilege over this document?
Mr. MCLAUGHLIN. Objection. No decision to assert privilege over this document has been made. I don't know how many times we have to correct you, Mr. Dhillon, but no such decision has been made.
The WITNESS. That's correct. No assertion of privilege has been made with respect to this document.
Mr. MCLAUGHLIN. If an assertion of privilege had been made, we wouldn't have this document. I am sitting here looking at it. It was produced. It appears with an EOP number. You are asking perhaps why it might be subject to privilege in private litigation going on in Wisconsin, but your question implies that some decision was made that was not made.
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EXAMINATION BY MR. DHILLON:
Question. This document is on a privileged log, is it not?
Answer. It was on a log of documents that are subject to privilege, and I believe the log clearly states that.
Question. Who is involved in the decision to make this document subject to privilege?
Answer. It was one of the documents that was reviewed by Chuck Ruff, Lanny Breuer, Cheryl Mills, myself, and then by the Department of Justice.
Question. And this log was made subject to executive privilege; is that correct?
Answer. No, the log has various privileges on there.
Question. Would reviewing the log refresh your recollection as to what Exhibit 5 was subject to?
Answer. I think the log probably speaks for itself.
Question. I place before you what's been marked as Exhibit 10 and ask you to review it.
Page 881 PREV PAGE TOP OF DOC Segment 11 Of 22
[Nionakis Deposition Exhibit DN–10 was marked for identification.]
Mr. MCLAUGHLIN. Exhibit 10?
Mr. DHILLON. Yes, they were all premarked and that was marked as Exhibit 10. We will fill in the other ones in the interim.
Mr. MCLAUGHLIN. Go ahead.
The WITNESS. This document states that—I'm sorry, Exhibit 10 reflects that Exhibit 5 is subject to executive privilege and subject to attorney-client communication privilege.
EXAMINATION BY MR. DHILLON:
Question. I want to get into that, but let's back up just a second on Exhibit 10. What is Exhibit 10?
Mr. EGGLESTON. Could I actually—could I ask you a question, because I'm getting increasingly concerned about the private litigation. If Mr. Nionakis's deposition is released publicly, are you going to release these documents such as Exhibit 5? Will they be released along with it?
Mr. DHILLON. I'd like to go off the record for a moment.
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Mr. EGGLESTON. I'd like to do it on the record.
Mr. MCLAUGHLIN. On the record.
Mr. EGGLESTON. This is what concerns me about this. There is private litigation going on, and I am quite concerned what is going on here is the committee is acting as a stalking horse for private litigation. And that's why I want to know, if the deposition is released, which frequently happens, I want—these documents on the privileged log have not yet been produced in private litigation. In connection with responding to these questions I would like to know whether these documents are going to be released as part of his exhibits to his deposition. And now are we going to have testimony about them in a deposition that is going to be released.
Mr. MCLAUGHLIN. A related—I will wait for Mr. Dhillon—a related point, counsel may or may not be aware that these documents were turned over to the committee pursuant to a nonwaiver agreement. And so accordingly, these documents cannot be made public without violating that agreement.
And I presume that any deposition testimony relating to the substance of these documents would also be subject to a nonwaiver agreement. And, accordingly, that agreement would not afford this committee, without violating it, the ability to raise these documents publicly.
Mr. EGGLESTON. That was actually my concern, which is if you are now going to start asking him questions about it, for example——
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Mr. DHILLON. You are looking at Exhibit 10.
Mr. EGGLESTON. I know, Exhibit 10, but—for example, you have mentioned the name of an individual. That individual's name is not on the privileged log. As of this minute, if this deposition were released there would be information that is released off the face of a document that has been provided to the committee under a restrictive basis. I understand that would then be made public and be available for use by private litigants in private litigation. And I'm sure that this committee does not want to be taking sides in private litigation, I'm sure that is not what you are about. But it seems to me that is very definitely the road we are going down.
And as I say, the problem is that I don't understand what the issue is that you're going to, since you have the documents. And so I don't understand what wrongdoing it is that you think that the White House is engaged in. You are showing him one of the documents. And my understanding is that you have them. The Senate has them. They were provided to you. And I don't see the relevance of this line of questioning, but it has substantial impact on private litigation, and that is my concern. I do not want to interfere with anything you're doing, but it seems to me the impact of this is only to interfere with private litigation, which I just am quite concerned about.
I don't even know who the private parties are in the private litigation. It's not like I'm shilling for one side or the other. It is clear that there is a court and there's a process and apparently somewhere in Wisconsin, and by going down this route, if this deposition is released, we run substantial risk of interfering with the judicial process. And I think that that would be wrong to do. So I was back to the question of, if this gets released is it going to be redacted? What is happening?
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Mr. DHILLON. What I wanted to talk about were the procedures we followed off the record, but I guess we can do it on the records if you prefer.
[Pager interruption.]
Mr. EGGLESTON. I'm sorry; I'm not from the White House. It's a Sky-Tel pager.
Mr. DHILLON. You can put the paying client off.
These are held in executive session. They can only be released through a vote of the committee. And we can redact portions that—or withhold portions that can be redacted or withheld. Mr. McLaughlin is here, and he seems very much aware of these issues; and I know he is very competent and able, and I am certain he will bring those issues to bear at that time so that everyone on the committee is aware of what portions are properly released or not properly released.
And of course you can communicate with me and Mr. McLaughlin, and we can prepare a deposition that is—that I think meets with those concerns with respect to the private and civil litigation.
Mr. MCLAUGHLIN. Well, the nonwaiver agreement is not between the minority and the White House. It is between the majority and the White House. Of course we had nothing to do with negotiating or implementing that nonwaiver agreement. It was your decision to enter into that agreement. You got these documents pursuant to it.
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This committee has a history of ignoring Chairman Burton's agreements with the minority, so I have no idea whether or not the members of the majority side will respect his agreements with regard to the White House. But my point is that obviously none of this can be released publicly without violating that agreement. So I'm sure that Mr. Dhillon, who is also competent and a conscientious, ethical attorney, I'm sure will also want to take whatever steps are necessary to avoid violating that agreement with the White House. That's not my agreement. I'll help you out if you want my help.
Mr. DHILLON. I thank Mr. McLaughlin for his kind words, and there is no doubt that that is the case that we will abide by that agreement. And you certainly raise, both counsel for the witness and Mr. McLaughlin have raised some important issues with respect to the release or potential or possible release of the subpoena—I'm sorry, of this deposition.
So I think we can work through those concerns. I wouldn't mind if we could have a moment off the record. I think that would be helpful once the speeches are done.
Mr. MCLAUGHLIN. Let me restate my question on the record, which is that before you go any further on these questions, I would like to invite you to state the relevance. You have been challenged on the relevance by me, and you have declined to state the relevance of them for the reasons that have been ably stated by Mr. Eggleston. I can't understand how the designation of a document that is subject to privilege in ongoing private litigation is in any way relevant to this committee's inquiry, that once used to be about campaign fund-raising and related matters.
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Next Hearing Segment(12)