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Justice Department Protested Limits On Foster Probe Investigators Were Forbidden From Looking At Deputy Counsel’s Papers Following Suicide

Fri., July 21, 1995

In the days after the death of Vincent Foster Jr., the deputy counsel to the president, senior Justice Department officials complained bitterly that the White House was setting improper limits on the investigation into his suicide, threatening to ruin it, according to documents obtained by the Senate Whitewater committee.

Two days after Foster died, Deputy Attorney General Philip Heymann told White House counsel Bernard Nussbaum that he was “messing this up very badly” and “making a terrible mistake” by forbidding Justice Department lawyers from looking at any papers in Foster’s office.

The discussion between the two officials was described as “a disaster” in the handwritten notes of Cynthia M. Monaco, a special assistant to Heymann.

A government official who is critical of the White House’s handling of the investigation made the notes available to a reporter for The New York Times.

As deputy counsel and one of the closest confidants of the Clintons, Foster had handled many of the couple’s most sensitive political and personal issues, including Whitewater and the Clintons’ tax returns and blind trust.

In the days after his death on July 20, 1993, few clues emerged about why he would have wanted to kill himself. Ultimately investigators concluded that he may have been suffering from depression.

A few weeks after Foster’s death, David Margolis, a senior Justice lawyer involved in the Foster investigation, complained in an E-mail message to Heymann about how the White House had improperly tainted the investigation with political considerations and compared the climate at the department to when it was run by the Reagan administration.

“You are still allowing the White House to dictate the terms of your investigations, at least when the White House has interests to protect,” Margolis wrote.

Then, referring to President Ronald Reagan’s attorney general, Edwin Meese III, he asked: “Is this the separation of politics from Justice that Janet Reno brags about? Have you brought Ed Meese back?”

The message concluded, “Have you learned anything from travelgate?” The reference was to the improper use of the FBI by Clinton administration officials in the furor over the dismissal of members of the White House travel office.

A Democrat on the committee said it had evidence that Margolis’ E-mail note was not expressing dissatisfaction with the White House but was actually just a proposed list of mock questions to prepare Heymann for news reporters’ inquiries.

Heymann’s handwritten notes of the July 22, 1993, conversation show that he told Nussbaum that he was making a “terrible mistake” by reneging on an agreement to let Justice Department lawyers look at papers in the office in search of a motive for Foster’s suicide.

The notes show that Nussbaum was concerned that the department’s lawyers would simply walk out of Foster’s office in protest and that Nussbaum said he had “to talk to some people about this.”

The notes do not indicate who Nussbaum consulted at the White House. But they show that Nussbaum told Heymann, “We’ll do it my way.”

According to Monaco’s notes, the department and the White House had originally reached an agreement that would have permitted two department lawyers to look at the Foster papers, but then reopened that agreement.

Heymann left the department early last year and later complained that Attorney General Reno lacked political independence. A message left at his office at Harvard Law School where he is a professor was not returned Thursday.

The department notes are expected to become an integral part of the Senate Whitewater committee’s investigation into the handling of papers in Foster’s office after his death.

Democrats and Republicans have already said that Nussbaum’s supervision of the case would be coming under intense scrutiny and that he would face tough questioning when he appears in the next few weeks. Nussbaum resigned from his position last year after being criticized for his handling of several aspects of Whitewater.

James Fitzpatrick, one of Nussbaum’s lawyers, said Nussbaum would be testifying that there never was an agreement with the department to permit lawyers to examine papers in Foster’s office. Fitzpatrick also said that Nussbaum had denied access to the papers because of concerns that it would waive executive privilege.

That assertion is almost certain to be challenged by some senators because the Justice Department lawyers who sought to examine the Foster papers were members of the executive branch.

“He did not feel he had made an agreement or had committed to allow them to look” at the papers, Fitzpatrick said. “The president has a privilege against the Justice Department; that’s Bernie’s view and that’s the White House’s view.”

“Unfortunately, for obvious political reasons, someone has decided selectively to leak documents which we don’t have,” Fitzpatrick said. “This is terribly unfair. We are confident that when the full story is told it will be clear that all those dealing with this tragedy acted in an entirely appropriate way.”

The committee’s chairman, Sen. Alfonse D’Amato, R-N.Y., has said that it was not looking into the circumstances of Foster’s death in a park in Virgina two years ago, in the belief that reviews by the Park Police and Robert B. Fiske Jr., the first Whitewater independent counsel, as well its own hearings last year, had settled that question.

Instead, the committee is focusing on whether any White House officials had sought to impede the Park Police investigation into the suicide or remove any embarrassing documents from Foster’s office in the West Wing of the White House.

Thursday’s testimony

Thursday, officials from the Park Police testified that they had requested the White House to lock Foster’s office July 20 and that they were not told that senior Clinton aides had entered the office and looked through his papers.

Park Police officials have complained that the White House was less than cooperative in the investigation and that they would have preferred if officials had not moved papers in Foster’s office and limited their access to the office.

Sgt. Cheryl A. Braun of the Park Police said she believed that officials were engaged in “damage control” to limit White House embarrassment.

But the officials said they still believed there was nothing to change their ultimate conclusion that Foster had committed suicide at Fort Marcy Park in Virginia.

D’Amato and the ranking Democrat on the committee, Sen. Paul Sarbanes of Maryland, said Thursday that lawyers from the committee would try to negotiate with the Clintons’ lawyers over gaining access to the full texts of edited portions of some of Foster’s papers.

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