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Ex-Justice Official Told White House Not To Suppress Files Counsel Kept Investigators From Seeing Foster’s Papers

Thu., Aug. 3, 1995

In testimony damaging to the White House, former Deputy Attorney General Philip Heymann said Wednesday that he warned the White House two years ago it had “a major disaster brewing” in stymieing investigators after Vincent Foster’s suicide.

Appearing before the Senate Whitewater Committee, Heymann said he was so angry with then-White House Counsel Bernard Nussbaum that he asked him, “Bernie, are you hiding something?”

Heymann said Nussbaum responded, “No, Phil, I promise you we’re not hiding something.”

The committee is probing the conduct of White House officials after Foster’s body was discovered in a suburban Virginia park on July 20, 1993. The panel is examining whether White House aides mishandled files in Foster’s office and whether they improperly blocked law enforcement officials from their investigation. At the time of his death, Foster was working on personal legal matters for the Clintons.

Committee Chairman Alfonse D’Amato, R-N.Y., asked what he called the $64 question: Was the search for documents in Foster’s office credible?

“I don’t think that this was a trustworthy and credible way to handle documents, but I don’t want that to be taken as a suggestion that I distrust the people themselves involved,” said Heymann, who now teaches at Harvard Law School. “It’s just, the American people are entitled to a process they can trust.”

But Heymann later agreed with a comment by Sen. Paul Simon, D-Ill., that Nussbaum’s actions were “not illegal, not unethical but unwise.”

Heymann said the White House had legitimate claims of confidentiality, but that competing law enforcement interests had to be balanced document-by-document.

Heymann said he and Nussbaum had an understanding to permit two Justice Department attorneys, David Margolis and Roger Adams, to review records in Foster’s office on July 22, 1993, two days after his death. The two prosecutors would see the first page or two of every document to determine whether it was relevant to investigating Foster’s death.

But when the attorneys got to Foster’s office, Nussbaum informed them that the plan had been changed and that only the White House counsel’s office would see the documents, Heymann said.

“I remember being very angry and very adamant and saying, ‘This is a bad mistake,”’ Heymann recalled telling Nussbaum on the phone.

Heymann threatened to withdraw the two attorneys and said Nussbaum was “taken back” by his anger. According to Heymann, Nussbaum said: “‘I’ll have to talk to somebody else about this, or other people about this, and I’ll get back to you soon.”’

Nussbaum never called back, and the Justice Department lawyers were not permitted to look at the records, Heymann said. Instead, they and other law enforcement officials had to watch from the other side of the room. During this search, Nussbaum looked in Foster’s briefcase and declared it empty.

After Heymann found out that the search had been conducted that way, he asked Nussbaum if he was hiding something. Then, he told Nussbaum: “You misused us.”

Heymann then recalled that he and Attorney General Janet Reno were summoned to the White House on July 27, 1993, to a meeting with Chief of Staff Thomas “Mack” McLarty, Nussbaum, counselor David Gergen and another aide.

Nussbaum pulled out an envelope, Heymann recalled, and said, “Yesterday, we found these - we found a torn-up note.” With that, Nussbaum showed them the yellow scraps, which were found in the briefcase, and read Foster’s lament about the meanness of Washington.

The top White House officials wanted to know what to do with the note, and Reno said: “‘Turn it over to the Park Police immediately,”’ Heymann recalled.

“She then asked, ‘Why are we just getting it now, if it was found 30 hours before then?”’

Heymann said the White House officials said they delayed because they wanted to show it first to Foster’s widow and to the president who might, they said, have wanted to exert executive privilege.

“I thought it was ridiculous to be worried about executive privilege on that note,” Heymann said.

The next morning, July 28, Heymann directed the FBI to do a “thorough investigation of the finding of the note. … I told them to be very aggressive.”

The next day, the worried Interior Depart ment chief of staff called Heymann and asked to see him immediately because “the Park Police are very, very upset about the investigation.”

“He said that he wondered whether the Park Police were capable of doing an investigation in the White House,” Heymann said. “He said that they felt that they really couldn’t get the cooperation that they wanted. And he said that he wanted to pull the Park Police out.”

Heymann telephoned top White House officials and “I told them all that they had a major disaster brewing, that I wasn’t going to put up with it any more.”

Heymann said he told them that the FBI and Park Police were going to interview anybody they wanted and that White House counsel could not attend the interviews.

In another development Wednesday, the committee said it is asking the White House for an index missing from Foster’s office that listed files on the Clintons’ personal finances. A White House secretary testified Tuesday that she had prepared an index before Foster’s death. The White House produced a list dated two days after Foster’s death without any reference to Whitewater.

Tags: ethics

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