U.S. GOVERNMENT PRINTING OFFICE

73–168 DTP WASHINGTON : 2001

FELONIES AND FAVORS: A FRIEND OF THE ATTORNEY GENERAL GATHERS INFORMATION

FROM THE JUSTICE DEPARTMENT

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

JULY 27, 2000

Serial No. 106–242

Printed for the use of the Committee on Government Reform

(

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http://www.house.gov/reform

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(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, Clerk

PHIL SCHILIRO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on July 27, 2000 ............................................................................... 1

Statement of:

Manuel, Philip R., president, Philip Manuel Resource Group; Rebekah

Poston, partner, Steel Hector & Davis, Miami; and Richard Lucas,

former consultant to the Philip Manuel Resource Group .......................... 8

Schmidt, John R., former associate attorney general; Rebekah Poston,

partner, Steel Hector & Davis, Miami; John Hogan, former chief of

staff to Attorney General Reno; and Richard L. Huff, Co-Director, Office

of Information and Privacy, Justice Department ....................................... 86

Letters, statements, etc., submitted for the record by:

Burton, Hon. Dan, a Representative in Congress from the State of Indiana:

Exhibit 18 ................................................................................................... 57

Exhibit 19 ................................................................................................... 39

Exhibit 31 ................................................................................................... 142

Exhibit 36 ................................................................................................... 136

Exhibit 37 ................................................................................................... 105

Exhibit 51 ................................................................................................... 42

Horn, Hon. Stephen, a Representative in Congress from the State of

California:

Exhibits 48 and 50 .................................................................................... 49

LaTourette, Hon. Steven C., a Representative in Congress from the State

of Ohio:

Exhibit 6 ..................................................................................................... 84

Exhibit 15 ................................................................................................... 61

Exhibit 21 ................................................................................................... 63

Exhibit 32 ................................................................................................... 108

Exhibit 38 ................................................................................................... 70

Exhibit 39 ................................................................................................... 72

Exhibit 47 ................................................................................................... 114

Wilson, James C., chief counsel, Committee on Government Reform:

Exhibit 9 ..................................................................................................... 22

Exhibit 30 ................................................................................................... 96

Exhibit 41 ................................................................................................... 12

Exhibit 42 ................................................................................................... 14

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FELONIES AND FAVORS: A FRIEND OF THE

ATTORNEY GENERAL GATHERS INFORMATION FROM THE JUSTICE DEPARTMENT

THURSDAY, JULY 27, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 11:35 a.m., in room

2154, Rayburn House Office Building, Hon. Dan Burton (chairman

of the committee) presiding.

Present: Representatives Burton, Morella, Horn, LaTourette,

Chenoweth-Hage, Waxman, Owens, Norton, Cummings, and

Kucinich.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy counsel and parliamentarian; Nicole Petrosino, professional staff member; Kimberly A. Reed, investigative counsel; Kristi Remington, senior counsel; James J.

Schumann, counsel; Robin Butler, office manager; Michael Canty,

legislative aide; Maria Tamburri, assistant to chief counsel; John

Sare, staff assistant; Phil Schiliro, minority staff director; Phil

Barnett, minority chief counsel; Kenneth Ballen, minority chief investigative counsel; Kristin Amerling, minority deputy chief counsel; Michael Yeager, minority senior oversight counsel; Ellen

Rayner, minority chief clerk; and Jean Gosa and Earley Green, minority assistant clerks.

Mr. BURTON. Good morning. A quorum being present, the Committee on Government Reform will come to order.

I ask unanimous consent that all Members’ and witnesses’ statements—written opening statements be included in the record; and,

without objection, so ordered.

I ask unanimous consent that all articles, exhibits and extraneous or tabular material referred to be included in the record.

Without objection, so ordered.

I ask unanimous consent that the majority staff report about this

hearing be included in the record; and, without objection, so ordered.

I ask unanimous consent that a set of exhibits which was shared

with the minority prior to the hearing be included in the record;

and, without objection, so ordered.

I also ask unanimous consent that questioning in this matter

proceed under clause 2(g)(2) of House rule XI and the committee

rule 14 in which the chairman and ranking minority member allocate time to members of the committee as they deem appropriate

2

for extended questioning, not to exceed 60 minutes equally divided

between majority and minority; and, without objection, so ordered.

First of all, I want to apologize for the delay. This was not anticipated. We had, I don’t know, six or seven votes on the floor; and,

for that, I apologize. It was something that was unavoidable.

Sometimes when you are involved in a congressional investigation you come across things that you don’t expect. You start investigating one subject, you stumble onto something else, and it is important.

In 1996, during our investigation of the White House Travel Office firings, Filegate was uncovered. We discovered that the White

House had ordered FBI files on hundreds of Republicans. So we

looked into that.

In 1999, when we immunized Johnny Chung, we discovered that

an official at the United States Embassy in Beijing was selling

visas. So we looked into that.

This is a healthy process. Problems are exposed to the light of

day, they get the attention they deserve, and hopefully they are

corrected.

Today, we have a similar situation. We were investigating illegal

fundraising activities in Florida. They involved the Castro family

of Venezuela and a lawyer named Charles Intriago. In the process,

we uncovered another matter that deserved our attention.

This is a very unusual story. It starts with an obscure dispute

between two Buddhist groups in Japan. The story then shifts to

Miami, where an influential friend of the Attorney General is

hired. Then we have private investigators getting confidential

criminal records from the Justice Department or Justice Department sources. Then we have a furious lobbying campaign aimed at

the Attorney General’s office. And at the end of the story we have

the Associate Attorney General overturning decades of Justice Department precedent to reveal whether the Justice Department

knew if a Japanese citizen was arrested in Seattle in 1963.

Laws were broken. Favors were done. Policies were ignored.

Now, political favors are nothing new. It happens in Congress. It

happens at the White House. It’s an unfortunate fact of life in this

town. But if there’s one place where political favors should not happen, it’s at the Justice Department. And if there is one thing that

shouldn’t be handed out to political friends, it’s criminal records of

other people. That’s why this story is important.

We’ve interviewed a number of people. We received a lot of documents. I’m going to briefly summarize the story as I understand it.

There are two Buddhist organizations in Japan. They had a falling out. The leader of one group was accused of soliciting a prostitute in Seattle in 1963. He filed a defamation lawsuit. It is now

a bitter, bitter feud with a lot of money at stake.

One key to this whole case was whether any documentation

could be found that this man, Nobuo Abe, solicited a prostitute over

30 years ago. One side hired an American lawyer. Not just any

lawyer, a friend of the Attorney General, Rebekah Poston, from the

Attorney General’s old law firm in Miami.

Ms. Poston hired two private investigators. Their job was to get

someone in the Justice Department to look up this information in

the National Criminal Information Center, the NCIC, data base

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and leak it to them. According to their memos, which we have reviewed, they were successful. According to their own memos, they

got sources at the FBI to give them the information. One of the investigators, Richard Lucas, sent Ms. Poston a memo that said the

following: ‘‘a source was contacted and provided the following information: The source relayed that under the data provided there was

a reference to solicitation of prostitution, Seattle Police Department, March 1963.’’ Ms. Poston then sent a letter to the other client that said this: ‘‘PMRG, the private investigators, reported to us on November

17th, 1994, that a source within the U.S. Government in Washington, D.C., was contacted and the source confirmed that there is a

record for Nobuo Abe.’’ The problem is that that’s against the law.

So Ms. Poston decided she’d try to get the information legally so

she could use it in court. She filed a Freedom of information Act

request. She was denied. It’s against the Department’s policy to

give out criminal information from the data base or to even confirm

or deny whether these records exist. She appealed it. Again it was

denied.

At this point, she decided to take matters right to the Attorney

General’s office. According to her billing records, she contacted

high-level Justice Department officials 22 times in the first half of

1995. Most of those contacts were with the Attorney General’s chief

of staff, Mr. John Hogan. As a result, she got a meeting with Associate Attorney General John Schmidt.

Mr. Schmidt was advised that there is a long-standing policy not

to confirm or deny the existence of any information in the National

Criminal Information Center data base. Mr. Schmidt overrode that

policy and ordered his staff to give the information to Ms. Poston.

Interestingly enough, it appears that by this time the information had been deleted from the data base; and that issue remains

a mystery to this very day.

In my view, there are three problems here.

First, the third highest official at the Justice Department made

a decision to disregard an important policy, one that protects the

confidentiality of law enforcement records, for no better reason

than that a well-connected lawyer wanted it.

Two, Justice Department employees were leaking criminal

records—not once, not twice, but three times—in violation of the

law.

Three, the FBI was informed of this fact, and they refused to investigate. One of the two private investigators, Mr. Richard Lucas,

went to the FBI and offered them all of the information, information that was incriminating to himself. I have copies of three letters from the FBI refusing to even look into it. For some reason,

Mr. Lucas wasn’t even interviewed.

I will say this about Mr. Lucas. I don’t condone what he did. I

think he made mistakes. But at least he came forward and admitted what he did. He has cooperated with this committee, and it

isn’t every day that we get that kind of cooperation.

Now, one might look at this and say, what’s the big deal? On the

surface, this may seem like a fairly insignificant event. After all,

this committee has published Justice Department documents on its

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Web site. Well, the reason for that is that this committee has oversight responsibilities. We have an obligation to oversee the executive branch on behalf of the American people. If we believe that

laws aren’t being faithfully executed, it is our job to look into it.

When we find wrongdoing, it’s our job to inform the American people.

That’s not what Rebekah Poston was doing. She was paid to dig

up dirt on a foreign national.

Even with all of our responsibilities, getting information out of

the Justice Department is like pulling teeth. I wish I had a dollar

for every time a Justice Department official told me they couldn’t

confirm or deny anything or something. I have sat through briefings where it seems like that’s all they said—because of this same

policy.

Here’s why this is important: The Justice Department is the

guardian of sensitive criminal records. Those records are in the

data base to assist law enforcement agencies all over the country.

It’s for law enforcement purposes and law enforcement purposes

only. It’s not there for influential lawyers who have contacts and

want to dig up dirt on people for lawsuits.

The public has a right to expect the Department to protect sensitive law enforcement information. But when Justice Department

employees give out information to private investigators for nefarious purposes, that trust is eroded. When senior officials set aside

long-standing policies for the privileged few, that trust is eroded.

The Justice Department is one of the most powerful institutions

in this country. They have the power to prosecute people and put

them in jail. They can force people to run up hundreds of thousands or millions of dollars in legal bills. The one thing that the

Justice Department must have, beyond all others, is the public’s

trust. The actions of the Department must be above reproach.

So while this may not seem like the most significant event in the

world, its ramifications are very real. In this instance, the target

was a religious leader from Japan. The next time, it could be any

one of us.

Ms. Poston is here today. She has met with committee staff. She

has answered some questions. She has refused to answer many

others. We’ve been informed that she may exercise her fifth amendment right not to testify today. I hope that won’t be the case. We

have questions that we want to ask, and I hope we can get some

of these answers.

The two private investigators employed by Ms. Poston are also

here, Mr. Manuel and Mr. Lucas. They will also testify along with

Ms. Poston.

On the second panel, we have Mr. Schmidt, Mr. Hogan and the

Director of Department’s Office of Information, Mr. Huff. Mr. Huff

interrupted a family vacation to be here today, which I’m sure he

didn’t want to do, but we do appreciate his attendance.

We look forward to receiving testimony from all of you.

I now yield to Mr. Waxman for his opening statement.

Mr. WAXMAN. Thank you, Mr. Chairman.

What a difference a week makes. Last week, this committee had

a hearing criticizing the Justice Department for not giving out information, not giving out a deposition of the Vice President, which

5

it could not give out by law because it was an ongoing investigation. This week, we’re criticizing the Justice Department for giving

out some information, presumably.

I won’t make a long opening statement. I just want to point out

that this committee is in a perpetual search for a scandal, any

scandal that might attract attention. But I do want to point out

that the Attorney General, Janet Reno, recused herself from the

dispute that we’ll focus on today. The Attorney General had no involvement in this dispute. The Justice Department official who

handled the request, John Schmidt, made his decision without any

pressure or instructions from others and based his decision on the

merits and, in fact, no incriminating or damaging information was

released by Mr. Schmidt.

With that, I look forward to letting the witnesses say whatever

they have to say. But if you accept those facts—I know we have

an oversight responsibility to look at all sorts of things, but if I

were making up a list of priorities, this would be pretty far down

the list.

But I yield back the balance of my time—I don’t want to take up

any more time of the committee—and look forward to letting the

chairman conduct the hearing.

Mr. BURTON. Thank you, Mr. Waxman.

We’ll now welcome our first panel to the witness table. Rebekah

Poston, Philip Manuel and Mr. Richard Lucas, would you please

stand and raise your right hands.

[Witnesses sworn.]

Mr. BURTON. Have a seat. Before we allow our witnesses to make

an open statement, Mrs. Chenoweth, would you like to make a

brief opening statement?

Mrs. CHENOWETH-HAGE. Thank you, Chairman Burton.

I do want to thank you very much for holding this hearing today

on this issue, and I am very glad that this committee is willing to

investigate this important issue of the leakage of confidential law

enforcement documents and possible favoritism.

Now the responsibility for oversight into these issues is critical

to the health and well-being of our very Republic. Centuries ago,

Juvenal, a Roman philosopher, asked an interesting question that

still rings true today. He asked, who will guard the guards themselves? The only answer to that question now seems to be that it

is Congress itself that must conduct oversight into criminal matters, because the Justice Department completely ignores its duty.

Mr. Chairman, this problem of confidential documents being

leaked is not a new one with this administration. I am sure that

all of us remember what happened when a Bush administration aid

just looked at confidential documents of President Clinton during

the 1992 campaign. She was summarily fired because of that. However, since that time, a disturbing trend has developed in this administration; and we saw it during the impeachment, when Kenneth Bacon illegally leaked materials covered by the Privacy Act

regarding Linda Tripp. Now what happened to Mr. Bacon? Precisely nothing. And now are hearing disturbing charges that confidential law enforcement documents were obtained about a private

citizen.

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So the most surprising thing is that it seems these illegally obtained documents were then used as the basis for a Freedom of Information Act request to attempt to obtain the very same documents legally. Now, I am not sure what to be most surprised about,

the fact that it was possible to obtain confidential National Criminal Information Center documents or that someone would let it be

known that they were using these illegal documents for a duplicative FOIA request. The facts of this case simply stun logic.

Mr. Chairman, what is more troubling is that a personal friend

of our Attorney General seems to have been involved in this effort

to obtain confidential law enforcement documents through a FOIA

request. After reviewing the facts of the case, it does seem that special consideration that was given to this FOIA request. And, amazingly, the Justice Department violated its very own internal policy

to not comment on the existence or nonexistence of criminal records

about foreign nationals. And then, when the Justice Department

knew the security and confidentiality of the NCIC had been violated, it did nothing.

Mr. Chairman, I am stunned. Because for the past few years the

Justice Department would not seriously investigate the President,

the Vice President, the former Commerce Secretary, campaign contribution violations, the misuse of religious tax-exempt facilities,

the misuse of Federal resources for campaign fundraising and the

clear and completely blatant violation of the Privacy Act by Kenneth Bacon. Now the Justice Department won’t even investigate a

clear violation of the confidentiality of the NCIC when a witness

involved in the felony made himself available to law enforcement.

Mr. Chairman, the Attorney General should have resigned her

position in disgrace long ago. She didn’t have the decency to do it

then, and I don’t believe she’ll do it now. It’s hard to say it, but

General Reno is representative of an administration that has operated outside of the law for virtually 8 years straight. The consistent

and constant public trashing of anyone and everyone who opposes

this administration is unbelievable. Releasing confidential information is nothing new in this administration either. Linda Tripp,

Kathleen Willey, and Paula Jones are simply just the most high

profile examples. However, we now see that this same pattern also

descends to the level of releasing confidential information on a noncitizen.

Mr. Chairman, if this pattern of conduct is allowed to continue

with impunity, we are only a step away from becoming the type of

nation where its citizens genuinely should fear their government.

I am not one to compare this great Republic to the Soviet States,

but I would note that the lack of respect for privacy and the use

of confidential information to destroy people was very common

there. An administration or government that starts down the path

of using information like this against individuals is only a step

away from tyranny.

Thankfully, I know that our Republic has suffered worse crises.

However, I fear that this may have a longer term effect than just

this administration. When scandal and corruption is so blatant and

common, people become used to it and acquiesce. I pray that we

will not let this happen.

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Again, Mr. Chairman, I would like to personally thank the committee for taking the time to examine and provide oversight for

these important issues today.

Mr. BURTON. Thank you Mrs. Chenoweth.

Mr. LaTourette, do you have a statement you would like to

make?

Mr. LATOURETTE. I will just take a couple of minutes, Mr. Chairman.

Before my service here in the House, I had the pleasure of being

the elected prosecutor in the county where I am from in Ohio, Lake

County, OH. And at my desk was a terminal that was known as

a LEADS machine but also tied into the NCIC, which is the National Criminal Information Center. And the purpose behind that

computer was when you have a scofflaw brought to your attention

you wanted to be able to punch in that person’s identifying information to determine whether or not they had been involved in

other criminal activity.

But there were specific rules and regulations. We were licensed

to use that terminal, and the reason is that information is designed

to be used only for law enforcement purposes. It is not to be used

for private purposes or civil lawsuit purposes. And, quite frankly,

it was to help us know whether or not we were dealing with a real

bad person or someone who had not run afoul of the law before.

And what troubles me about this hearing—I mean, I really don’t

have—if the allegations that have been made in the chairman’s

opening statements are correct, Ms. Poston was hired by somebody

to get information. I guess that’s what private investigators and

lawyers do.

The thing that troubled me as I studied the materials for this

hearing was, whoever it was at the Federal Bureau of Prisons that

delivered information against Federal law and then dissemination

of that information—and the reason it’s particularly offensive here,

because I indicated to you what we used the machine for, is that

a lot of people don’t understand the difference between someone

being arrested for something, indicted for something, convicted of

something, and the power to destroy a person’s career, reputation

and standing in the community just by dissemination of information that they may have run afoul of the law. And apparently in

this case the information was erroneous, is a mess, and that’s why

we have rules and regulations.

This is a very disturbing thing to me. And I guess what disturbs

me—I am not quite as vocal as Mrs. Chenoweth-Hage is about this

subject. But the thing that disturbs me is I received a phone call

one time from the sheriff in our county, and he said I have got a

buddy who wants to check on whether or not this neighbor who is

playing loud music has ever been arrested for anything, and what

do you think I should do?

I said, well, you know, Dan—not Dan Burton; Dan Dunlap was

the sheriff’s name—Dan, if you use the computer for that, I am

going to put you in jail. And we did, in fact, put corrections officers

in jail who accessed the NCIC material to get dirt on ex-wives or

neighbors or people down at the boat club that, you know, were

acting in a rowdy way.

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So I’m troubled by two things that this hearing is about today.

One is the release of this information; and, two, what I see—if,

again, information has been brought to the attention of the Justice

Department, that this has been done and nobody’s done anything

about it. So I will begin the hearing troubled, and I hope I leave

the hearing not so troubled.

I thank you and yield back my time.

Mr. BURTON. Why don’t we just go right down the line there? Mr.

Manuel, would you like to make an opening statement?

STATEMENTS OF PHILIP R. MANUEL, PRESIDENT, PHILIP

MANUEL RESOURCE GROUP; REBEKAH POSTON, PARTNER,

STEEL HECTOR & DAVIS, MIAMI; AND RICHARD LUCAS,

FORMER CONSULTANT TO THE PHILIP MANUEL RESOURCE

GROUP

Mr. MANUEL. Yes, sir, if I may.

Good morning—I should say now good afternoon.

Mr. BURTON. Well, I apologize for that, as I said.

Mr. MANUEL. Good morning, Mr. Chairman, Mr. Waxman, members of the committee. My name is Philip R. Manuel, and I am

founder and president of the Philip Manuel Resource Group Limited. I would like to thank the committee for this opportunity to

present my views on the information the committee has been fed

over the past 3 years and on the source of that information.

I have been an investigator in the public and private sector for

more than 35 years. I have served as a counter- intelligence agent

for the Army’s 902nd Intelligence Corps Group, as an investigator

for the House Internal Security Committee and as Chief Investigator for the U.S. Senate Permanent Subcommittee on Investigations;

and for the past 20 years I have run my own international financial investigative firm. Additional details regarding my background

can be found on a resume which I sent to the committee at your

request.

Over the course of these 35 years, Mr. Chairman, I believe that

I have acquired a reputation as an individual who is straightforward, honest and trustworthy. While the investigative industry

is not for the faint of heart, I value my reputation for integrity and

take great offense when that reputation is challenged.

As we begin this hearing this morning, I would like this committee to understand several points.

First, since I left the government and began private practice in

1979, I have never, under any circumstance, asked any employee

of the Federal Bureau of Investigation or any other government

agency to conduct a search of the National Criminal Information

Center data base. I did not do so in the case of Mr. Abe, which is

before this committee, or in any other case.

Second, I believe that my denial in this regard can easily be established by this committee. It is my understanding that every

time a name is checked in the NCIC data base there is an audit

trail that’s established and created which records the identity of

the person whose records were sought, the date and time of such

inquiry, and the identity of the person who made the inquiry. I am

confident that during the period in question there is no record of

9

any NCIC inquiry on this individual that can be traced to my participation in this case.

Third, I believe this committee is relying on the representations

of one of the most unscrupulous and deceitful individuals I have

ever met in my entire life. I once trusted this person to run my

Miami office. That was a mistake for which I have paid a dear

price.

During the time that this individual was running my Miami office, he stole and copied confidential client documents and tried to

sell those documents to the highest bidder. And, in fact, in one case

we received evidence that he did receive about $35,000 from one of

our client’s adversaries for confidential documents.

He shopped his services as a paid informant to those government

agencies that would let him in the door. He surreptitiously solicited

business from my clients, breaching his contract with me.

After 3 years of litigation with this individual, I won a judgment

against him for his treachery. But, sadly, the story does not end

there.

I have now learned that this individual brought his bag of tricks

to this committee and sold it a bill of goods. The stolen confidential

documents and his spin serve as the basis for this hearing. In fact,

he stole entire case files. I have not seen the case files he purloined, but I do know that the source of the documents is untruthful and a manipulator of facts, and whatever spin he puts on the

file can only serve one purpose and that’s furthering his own interests at the expense of everyone else.

I thank the chairman for allowing me to read this statement, and

I am prepared to answer whatever questions you may have.

Mr. BURTON. Thank you, Mr. Manuel.

Ms. Poston.

Ms. POSTON. Yes. Good morning, members of the panel.

Mr. BURTON. Excuse me, Ms. Poston. It might be easier if you

just pull the mic closer. They don’t pick up sound as well as they

should.

Ms. POSTON. Can you hear me sufficiently? Thank you.

Good afternoon, members of the committee and to Chairman

Burton.

As you all know, I am a member in the law firm of Steel Hector

and Davis in Miami; and since about March 1999 I have been cooperating with this committee. My lawyer, Mr. Eduardo Palmer,

has met with your investigative staff. We have provided documents

at your request. To the extent we claimed privileges, we provided

you privileged logs. We traveled voluntarily about 3 weeks ago up

here to Washington, DC, to meet with your chief counsel, Mr. Wilson and deputy counsel, Mr. Kass; and we spent several hours answering their questions within the confines of the privileges which

my clients have required that I continue to assert on their behalf.

I believe that this staff of this committee found my open cooperation and my testimony to be forthright with respect to the manner

in which I answered the questions. I am hopeful that today I will

be able, within the confines of the law, to do so for you, Mr. Chairman.

Mr. BURTON. Thank you very much.

Mr. Lucas.

10

Mr. LUCAS. I have no statement Mr. Burton.

Mr. BURTON. You have no opening statement.

Mr. LUCAS. No.

Mr. BURTON. OK, we’ll now proceed under the rules that were accepted by the committee and have counsel, Mr. Wilson, start the

questioning.

Mr. WILSON. Good afternoon, all, again. Sorry for the long delay.

I want to go over some documents. We have provided you with

exhibit books that are in front of you, and at certain times I will

refer to certain exhibits. We can put them up on the screen, and

I will ask you to take a look at them as we get to them.

Ms. Poston, when we did meet with you—and we do appreciate

your having come up—you informed us that you were a friend of

the Attorney General, is that correct?

Ms. POSTON. That’s correct.

Mr. WILSON. And you also told us that your sister is a close

friend of the Attorney General, is that right?

Ms. POSTON. Yes, that’s correct. I would describe my relationship

with General Reno as more of one of a professional basis but certainly a friend; and my sister’s would be more of a personal and

professional relationship.

Mr. WILSON. And, in fact, your sister worked with the Attorney

General when Attorney General Reno was the State Attorney in

Miami, is that correct?

Ms. POSTON. Yes, that’s correct.

Mr. WILSON. Did she also run the Attorney General’s campaigns

for elective office in Miami?

Ms. POSTON. Yes, she did. She participated with other staff members in her campaign.

Mr. WILSON. Mr. Lucas, just so we can set the stage here, can

you give us a sense to the extent you know why the law firm of

Steel Hector and Davis was hired in this particular case?

Mr. BURTON. Could you pull the mic closer, too?

Mr. LUCAS. I don’t know the reason why the religious organization went to Steel Hector and Davis, other than Ms. Poston explained that for two reasons, one is that they were a good client—

the religious organization was a very good client—she explained

was a very client to the firm, and also that they needed someone

who knew how to—how to access information that may be available

to them through the Justice Department.

Mr. WILSON. Ms. Poston, I don’t want to belabor the obvious, but

you hired the Philip Manuel Resource Group to obtain information

about Mr. Abe.

Ms. POSTON. I did hire the Philip Manuel Resource Group. I

think the purpose for which I hired them I would be precluded

from answering, based upon the attorney-client work product privilege.

Mr. WILSON. OK. Well, I think we can get around that in a few

places where certainly privilege is waived—now we’ll get to this in

a moment—in that Congress doesn’t recognize privileges that

you’re asserting, but we’ll get to that in just a moment. Mr.

Manuel, did you ever contact any government sources to obtain information from the NCIC data base?

Mr. MANUEL. No, sir.

11

Mr. WILSON. Did you contact anyone at the Justice Department

to obtain information about Mr. Abe?

Mr. MANUEL. I contacted some people in the Justice Department

for the purpose of finding out the facts and procedures surrounding

how the NCIC operated.

Mr. WILSON. And were your contacts limited exclusively to the

procedural aspects of the NCIC data base.

Mr. MANUEL. I believe they were, yes.

Mr. WILSON. Fair enough. Now—— Mr. MANUEL. And related subjects, but not seeking criminal data

from them.

Mr. WILSON. OK. Ms. Poston, did you ever prepare affidavits for

Mr. Lucas and Mr. Manuel to sign in the Abe case?

Ms. POSTON. Just a moment, please. I will respectfully decline to

answer that based on the attorney-client work product privilege.

Mr. WILSON. Now, as we are aware, I believe that these affidavits have been publicly filed, affidavits signed by Mr. Lucas and

signed by Mr. Manuel, is that correct?

Ms. POSTON. I have no knowledge as to whether they are public

or not.

Mr. WILSON. Do you have any knowledge of the disposition of

any affidavits prepared by Mr. Manuel or Mr. Lucas?

Ms. POSTON. I don’t know what you mean by disposition.

Mr. WILSON. Well, I asked you whether you participated in the

preparation of affidavits by Mr. Manuel or Mr. Lucas; and you declined to answer that question. But are you aware of the fact or the

existence of affidavits in the Abe case signed by Mr. Lucas or Mr.

Manuel?

Ms. POSTON. I am aware of the fact of the existence of affidavits.

Mr. WILSON. OK. And are you aware that affidavits signed by

Mr. Lucas and Mr. Abe were filed in a law case in Japan?

Ms. POSTON. Of that I do not know of my own personal knowledge.

Mr. WILSON. Mr. Manuel, if you could—actually, we’ll just back

up 1 second.

Ms. Poston, if you could take a look at exhibit 41, please, in the

book that’s in front of you.

[Exhibit 41 follows:]

12

13

Ms. POSTON. Yes.

Mr. WILSON. This is a letter dated September 8, 1995. It’s to Mr.

Manuel and Mr. Lucas in this case. It’s signed by yourself. It’s on

letterhead of Steel Hector and Davis.

And in this letter, in the second half, you state, ‘‘Obviously, I

cannot stress enough the importance of maintaining the confidentiality of these affidavits. They are protected by the attorney work

product doctrine and privileged and confidential under the attorney-client privilege. Consequently, until the client waives the privilege by presenting them officially, we must not violate that privilege.’’ Do you recall drafting this letter?

Ms. POSTON. There’s no question that’s my signature.

I must make it very clear to this committee that this is a confidential communication. Because when the investigative firm was

hired, they were retained under the attorney-client and work product privilege.

Shortly before, Mr. Wilson, you indicated that you were taking

the position you don’t recognize the privilege here; the committee

does not. I must assert what I have been ordered to do by my client, which is to assert that privilege. So other than identifying my

signature on this document, this is a confidential communication

with the investigators that I retained under the privilege. My client

has never waived that privilege, and so I must enforce it and not

answer further than that.

Mr. WILSON. We’ll return to that question in a moment.

Mr. Manuel, if you could please take a look at exhibit 42, which

is in the exhibit book in front of you; and if you could take just a

second to look over the three pages.

The first question I have, which I think doesn’t require too much

time, is there’s a signature on page three of this affidavit and is

this signature yours?

[Exhibit 42 follows:]

14

15

16

17

Mr. MANUEL. Looks like my signature. Looks like a copy of my

signature.

Mr. WILSON. Do you recall signing this affidavit?

Mr. MANUEL. I do.

Mr. WILSON. You do. Could you tell us the circumstances of your

signing this affidavit? Was it provided to you by Ms. Poston?

Mr. MANUEL. Well, Mr. Wilson, I am advised by counsel that,

being that Ms. Poston has asserted a privilege here, that I should

not answer questions about this on the same grounds.

Mr. WILSON. OK. If you would—this is not a question about the

document, but could you please read sections 11 through 16 inclusive of this document.

Now you’ve had an opportunity to read it yourself, would you

please read it out loud to the committee?

Mr. MANUEL. Starting with?

Mr. WILSON. With paragraph 11.

Mr. MANUEL. As part of PMRG’s investigation, I contacted a confidential and highly reliable source who I believe would be able to

determine whether the Federal Government had documentary evidence.

My source told me there was Federal Government record for

Nobuo Abe which referred to ‘‘Suspicion of Solicitation of Prostitution, Seattle Police Department, March 1963.’’

My source further told me that the record concerning Mr. Abe reflected that the Seattle Police Department had made an inquiry for

information.

My source also told me that if Mr. Abe made an official request

for the information under his name to be removed from the record,

it could be removed.

Sometime later, my source informed me that the record concerning Mr. Abe apparently had been purged.

I am confident that the information provided to me by the source

is accurate and reliable.

Mr. WILSON. Now, the first question, is this, your affidavit, your

signed affidavit accurate?

Mr. MANUEL. It is not accurate. And if I had—if I had it to do

over, I would not have written it that way or signed it. I don’t remember reading—writing it, but I did sign it. Had I wrote it, I

would not have written it that way.

And what the committee needs to understand is that I did not

have any confidential source in the Department of Justice who provided me this information. Rather, what happened was there was

a series of contacts. I gathered a number of composite type information about the NCIC, and a lot of these conclusions were made

by me. I never received any documentary evidence or any information directly from the NCIC. If the committee wants me to explain

exactly how I arrived at these conclusions, I will be glad to do——

Mr. WILSON. No, we understand that. But the puzzlement that

we have over this is that you state—and I will read it more slowly

than you did—unambiguously: My source told me that there was

a Federal Government record for Nobuo Abe which referred to

‘‘Suspicion of Solicitation of Prostitution, Seattle Police Department, March 1963.’’

18

It continues. It says, my source further told me that the record

concerning Mr. Abe reflected that the Seattle Police Department

had made an inquiry for information.

The following paragraph says, and it’s again unambiguous: My

source also told me that if Mr. Abe made an official request for the

information under his name to be removed from the record, it could

be removed.

And it continues: Sometime later, my source informed me that

the record concerning Mr. Abe apparently had been purged.

Now our concern here is that you provided us a statement yesterday and you very unambiguously told us this morning that your

contact was exclusively limited to procedural aspects of the functioning of the NCIC data base. Now, we’re faced with a difficulty

here because, apparently—and we don’t know this—we have a document, but it appears to be signed, appears to be dated, I believe

it was notarized, and I believe it was submitted in a legal proceeding in Japan.

Mr. MANUEL. I don’t have any knowledge of that. I don’t know

how it was used.

Mr. WILSON. And I won’t ask you that, because perhaps that’s

not fair. Why did you sign this—what was the purpose of this affidavit?

Mr. MANUEL. Well, first of all, this affidavit is dated about 5

months—I would say or 4 or 5 months after I ceased having any

participation in this case. I believe the affidavit was caused—or it

was requested because a lawyer on the West Coast had made some

disclosure having to do with this case, and I am not more clear

about that. Keep in mind, Mr. Wilson, you’re asking me about

things that happened almost 6 years ago; and I have nothing to

refer to except what you have given me in the last couple minutes.

There was—there was some pressure to sign this affidavit. They

came mostly from Mr. Lucas.

Mr. WILSON. If I could stop you there, it’s my understanding that

you are the head of the Philip Manuel Resource Group and that

Mr. Lucas was your employee. Is that a fair understanding of your

relationship? You were his boss man, than he was a contract employee who ran the Miami office?

But let me just try and rephrase the question so it’s a little clearer. Were you Mr. Lucas’ boss?

Mr. MANUEL. Yes.

Mr. WILSON. He was your employee.

Mr. MANUEL. He was my contract employee. He was not an employee of my firm. He was working under a contract between my

firm and his firm to manage my Miami office and to market services out of that Miami office.

Mr. WILSON. Well, I mean, from our perspective, somewhat artful

a response, but could you have fired him?

Mr. MANUEL. I could not have fired him, because he wasn’t an

employee. I could have ceased doing business with him by canceling his contract.

Mr. WILSON. And that’s merely what I was getting at. So it’s a

little difficult for us to understand that you just mentioned you

were feeling pressure from Mr. Lucas. Were you feeling any presVerDate 11-MAY-2000 11:38 Jul 18, 2001 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\DOCS\73168.TXT HGOVREF1 PsN: HGOVREF1
19

sure at the time to be honest and forthright and accurate in your

answers in a signed, sworn affidavit?

Mr. MANUEL. I felt a number of countervailing pressures. The

No. 1 pressure was that I wanted to—and this is the ironic part

of it—I was almost acting to protect the man who was in the process of stabbing me in the back. If you’re talking about NCIC, the

first—the first knowledge I ever had about the mention of NCIC

came from Mr. Lucas. It was Mr. Lucas himself who told me, after

he had accepted this case, that he was the one who had contacted

NCIC and had received information from NCIC.

Mr. WILSON. Well, no—I mean, we appreciate you told us that

in the interview, but what we have here—we have now what you’re

telling us, but we have—from a time when your memory was fresher and a contemporaneous time, we have an expression of theoretically what the truth is. I mean, when one signs an affidavit, one

has it notarized, dated, there’s no ambiguity in terms of whether

one should tell the truth or not. And so what we’re faced now with

is a difficulty of reconciling what you’re telling us now with what

you stated in an official document.

Mr. MANUEL. I understand your confusion. Like I say, if I had

my life to live over, I wouldn’t have written this affidavit this way.

You may interpret it as being awkwardly written and maybe inaccurate. If that’s the case, I am not going to dispute that.

Mr. WILSON. Ms. Poston, based on all of the contacts and communications you have been involved in, did you have any reason to

doubt the accuracy of this affidavit?

Ms. POSTON. I’m going to have to respectfully refuse to answer

that question, again based on attorney-client privilege.

Mr. LATOURETTE. Mr. Chairman, will the counsel yield to me for

just a second? I don’t know, that reminds me of pussyfooting

around. I would like to ask a parliamentary inquiry, I guess, of the

Chair on yielded time.

Mr. Wilson made the observation that the attorney-client privilege isn’t recognized by the U.S. Congress. If that’s, in fact, the status of the law for witnesses brought before the committee, I guess

I’m puzzled why these witnesses are repeatedly invoking the attorney-client privilege if it doesn’t apply.

If the witnesses are afraid that they are going to incriminate

themselves, they certainly have the availability of the fifth amendment. But I think I would request, rather than going through a

hearing and listening to people say they can’t answer questions

they are supposed to be answering, that they be directed to answer

those questions unless they invoke a privilege that’s recognized

under the law by the Congress.

And, if not, I’ll have a further parliamentary inquiry to ask the

Chair how do we hold somebody in contempt of Congress for not

answering the questions that are put to them legitimately by the

counsel of this committee?

Mr. BURTON. Well, you are correct. The privilege that she is asserting is not recognized by the Congress of the United States, No.

1; and, No. 2, we can move a contempt of Congress citation and

press for prosecution if the witness chooses not to answer. And

you’re absolutely correct. If she feels like there might be self-incrimination, she does have the right of exercising her fifth amendVerDate 11-MAY-2000 11:38 Jul 18, 2001 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 C:\DOCS\73168.TXT HGOVREF1 PsN: HGOVREF1
20

ment rights. So you’ve been duly informed of the rules of the Congress.

Mr. LATOURETTE. I thank the chair and thank you, Mr. Wilson.

Mr. WILSON. I’m going to move to the privileges that you’re asserting in a moment, but what we want to establish here very, very

clearly is, if this affidavit were used in any public fashion whatsoever, then the privilege—any privilege you might assert, even

though we wouldn’t accept them here, is waived. So it’s important

for us to understand, and I think you have answered this question,

but my question wasn’t precise. Do you have any knowledge of this

affidavit being used in a public forum?

Ms. POSTON. I have no personal knowledge of this affidavit being

used in a public forum.

Mr. WILSON. Public forum is open to interpretation. In a judicial

setting in Japan, do you have any knowledge of this affidavit being

used in a judicial setting in Japan?

Ms. POSTON. I do not know if they were used or presented in evidence in Japan.

Mr. WILSON. OK. Why did you obtain signed affidavits from Mr.

Lucas and Mr. Manuel?

Ms. POSTON. Again, I am going the assert the attorney-client

privilege.

Ms. Clow, my client—I retained investigators on behalf of Ms.

Clow. As you know, Mr. Wilson, she has—she died of cancer several years ago. So we all know the Supreme Court in the Vince

Foster case stated that the privilege survives the privilege holder;

and, to my knowledge, Ms. Clow never waived her privilege with

respect to these affidavits.

Mr. WILSON. OK. So just if I can try and characterize where we

are on this subject, you will not tell us anything about the affidavits other than you’re aware of their existence.

Ms. POSTON. I believe that that’s correct, that I cannot do that.

Mr. BURTON. Let me just inform Ms. Poston, first of all, that you

are directed by the committee to answer the question and you do

run the risk of being held in contempt of Congress if you do not.

The second thing is, I’d like to ask the question, when you appeared before Mr. Wilson and his colleague and were discussing

these issues, did you indicate that you would take the fifth amendment before this committee?

Ms. POSTON. I did not, nor do I intend to do so.

Mr. BURTON. You did not say to our committee—to our counsel

that you would take the fifth amendment?

Ms. POSTON. I did not, absolutely not.

Mr. BURTON. Did your legal counsel, your lawyers, indicate that

you might take the fifth amendment?

Ms. POSTON. I’d have to defer to him. Because I believe when

your staff had conversations with my counsel, I was excused.

Mr. BURTON. I ask unanimous consent that we allow the counsel

to answer that question. Without objection, so ordered.

Mr. Palmer.

Mr. PALMER. Yes, sir.

Mr. BURTON. Did you indicate that Ms. Poston might be forced

to take the fifth amendment if these questions were asked?

21

Mr. PALMER. I had discussions with a member of your committee

who spoke with me about these matters over the course of the last

year and a half.

Mr. BURTON. I’m talking about when you were here, what, a few

weeks ago.

Mr. PALMER. Three weeks ago.

Mr. BURTON. Yes.

Mr. PALMER. No, sir.

Mr. BURTON. When you discussed with them on the phone the

issues in the last week, did you indicate that she might take the

fifth amendment?

Mr. PALMER. Members of your committee indicated to me that,

in their view, the conduct at issue here could constitute a criminal

violation; and we discussed all the privileges that would be applicable in that situation. I advised them that if that were the situation

that, first and foremost, the information the committee sought

would be protected by the attorney-client privilege and the work

product doctrine.

I also told them that if they believed that a witness had committed a criminal offense and they knew that from the outset, that it

would be improper for—to force the witness to come before this

committee merely to assert a fifth amendment privilege.

Mr. BURTON. So you did indicate that Ms. Poston might under

these circumstances assert her fifth amendment privilege.

Mr. PALMER. I indicated exactly what I just expressed to you.

Mr. BURTON. Thank you.

Mr. WILSON. Now, I think we’re going to find ourselves in the

same dilemma here, but let us try and move through this as much

as possible.

Ms. Poston, if you could take a look at exhibit 9, please, in the

book in front of you. And what we have here is a fax cover sheet

from yourself—or at least the originator is Poston, a short message

and an attached letter from a Mr. George Odano to yourself.

And while you’re looking at that I’ll read the message on the fax

cover sheet: Please get answers to as many of these as you can and

be specific. This is a matter of serious importance. I hope because

it is a Federal holiday that we can access the necessary research.

The first question that comes to mind, the fact of a Federal holiday falling at a certain time, what did that have to do with attempting to find information?

[Exhibit 9 follows:]

22

23

24

25

Ms. POSTON. This is a communication between me and the investigators that I hired under the privilege. And I am very sorry I

can’t answer your question, Mr. Wilson, but I have to assert this

privilege on behalf of my client.

Mr. WILSON. Now, the one thing that you attached to this document, to the fax cover sheet, is a letter to yourself; and the very

first question is, is the name on the NCIC file Nobuo Abe?

And consequently, if you look at the instructions, and this was

provided to Mr. Lucas, the fax cover sheet, what you have said is,

please get answers to as many of these as you can and be specific;

and the first question is, is the name on the NCIC file Nobuo Abe?

Now, from our perspective, you are asking your private investigator

to obtain very specific information about what is on the NCIC file.

Now, I guess I can ask you this question, why should we not be

concerned that you are asking somebody to obtain information from

an NCIC data base?

Ms. POSTON. The question is why—— Mr. WILSON. Why should I not be concerned, reading this document—I understand you don’t want us to have this document, you

don’t want to talk about this document, but the fact is this document is before us right now. Why should I not be concerned or the

committee be concerned with an attorney, an officer of the court,

asking a subordinate employee—in this case, contract employee,

private investigator—to obtain information about specific questions

under the first—and the first specific question is the name on the

NCIC file Nobuo Abe. Why should the committee not be concerned

by that request?

Ms. POSTON. I don’t think I’m in a position to answer why you

should or should not be concerned.

Mr. WILSON. Well, I will ask you for speculation. It will be perfectly acceptable to speculate what our concern is.

You heard opening statements here that there may have been attempts to improperly access information from the NCIC data base,

and what we are confronted with here is a document where you

ask a very, very specific, targeted question and you say you want

information, is the name on the NCIC file Nobuo Abe?

But let me just move away from that. I will ask about question

3. This is another thing you’ve asked your contract investigator to

determine. Question 3: Is the date of birth on the NCIC file December 19, 1922?

From my perspective, this looks like you’re asking—it doesn’t

look, it is that you’re asking for your subordinate to obtain information from the NCIC data base. Why should I not—is there something other than the plain words of this document that makes my

conclusion erroneous?

Ms. POSTON. Mr. Wilson, all I can tell you is that this is a communication from a client to me. This is a communication I have

sent to my investigator. I don’t believe that I’m at liberty, based

on the privilege that—as I have stated, to answer any of your questions in this regard. And as far as speculation goes or why you

should not be concerned, I can’t answer that.

Mr. BURTON. Well, for the record, let me interrupt, counsel. It’s

obvious to me and will be for the record and anyone’s who is paying

attention that, rather than use your fifth amendment privilege,

26

you’re hiding behind the attorney-client privilege. It’s very obvious.

And so, for the record, as chairman of the committee, I want to put

that in there, that every question we ask, even though it isn’t relevant to the attorney-client privilege, you’re using the attorney-client privilege to defer or deflect that question; and it’s not acceptable to the committee and will be recorded in the record that way.

Mr. LATOURETTE. Will counsel yield to me? Are you still on your

time, Mr. Wilson?

Mr. WILSON. Yes.

Mr. LATOURETTE. I stepped out of the room to talk to the House

Parliamentarian for just a minute. And going back to my lawyering

days—I mean, the implication of this privilege isn’t appropriate,

first of all, because it deals with crime fraud. It doesn’t deal with

communications between the client and the lawyer; and it’s also

been published, I mean, in newspapers. We know that. So—but superseding all of that is the fact that it’s not recognized by the Congress, was the answer to my previous parliamentary inquiry.

Now if the witness has refused to invoke the fifth or some other

privilege that’s recognized by this committee, Mr. Chairman, I respectfully ask that this matter be referred to the next business

meeting of the full Government Reform Committee to determine

whether or not the witness is invoking a privilege that they have

been warned at least twice is not appropriate to legitimate questions before this committee, whether or not contempt of Congress

citations are appropriate for a referral to the full body. We can’t

do it at this hearing because it isn’t noticed, but it’s my understanding we can do it at the next full business meeting of this committee, and I would respectfully ask the Chair to schedule it as an

agenda item.

Mr. BURTON. It will be taken under consideration, and we’ll probably do that.

Mr. WILSON. I just have about 20 seconds, so I’m not going to ask

much of a question in 20 seconds. But, Mr. Lucas, let me ask you

the question that’s sort of the other side of this issue. Did Ms.

Poston ask you to obtain in the form of these questions information

from the NCIC file?

Mr. LUCAS. Respectfully, Mr. Chairman, I have listened carefully

to instructions to Ms. Poston to answer questions despite claims of

attorney-client privilege and the work product doctrine. As I understand the situation, the committee has considered these privilege

claims and under its subpoena power it is nevertheless instructing

the witnesses to answer its questions. It is my understanding that

refusal to answer the committee’s questions could result in criminal prosecution. If I am similarly instructed to answer questions,

in recognition of the committee’s subpoena power, I will do so.

Mr. BURTON. You are so instructed.

Mr. LUCAS. Could you repeat your question then, sir?

Mr. WILSON. Mr. Lucas, I was asking you, based on the documents we have here, the fax transmission sheet, the letter from

Mr. Odano which is directed to you, the question was, did Ms.

Poston ask you to obtain information from the NCIC data base?

Mr. LUCAS. I think the document speaks for itself. I mean, it’s

faxed to me. The letter—the document just speaks for itself. I

mean, she faxed me the letter. She didn’t recite the letter to me,

27

and the document states what it states. It came from Ms. Poston.

It was directed from Mr. Odano to Ms. Poston, and she forwarded

it to me.

Mr. WILSON. Thank you very much, Mr. Lucas. My time is out.

Mr. BURTON. The counsel for the minority is recognized for 30

minutes.

Mr. BARNETT. I’m Phil Barnett, the chief minority counsel.

The minority staff and the members of the minority received the

majority staff report for the first time this morning, so we haven’t

had a time to examine it in any detail. What I hoped to do in my

questions was to ask the panel of witnesses questions about the report and its major allegations so that we can have your responses

as part of the record.

And there seem to be two major allegations. One is the allegation

that Mr. Manuel, Mr. Lucas, and Ms. Poston broke the law somehow by obtaining information from the National Criminal Information Center about arrest records; and the second is that there was

improper lobbying and influence connected with the Freedom of Information request.

I’d like to ask about both of those, beginning first with the allegations of the potential illegality and obtaining arrest information.

Mr. Lucas, I’d like to begin my questions with you.

We have had a chance to interview all the other witnesses that

are appearing here today, either in joint interviews with the majority, which the minority was asked to participate in, or in separate

interviews, but we’ve had no opportunity to ask you your perspective on things. And we also haven’t had much time to look at the

documents you’ve provided the committee.

Let me begin with the staff report. On page 7 of the staff report

that the majority released and put in the record today, it says Mr.

Lucas contacted a friend, Tony Gonzalez, a retired IRS investigator, to ask for help in obtaining NCIC information on Abe. Gonzalez in turn contacted a confidential source who provided him

with the NCIC information on Abe. Is that accurate?

Mr. LUCAS. In very general terms, yes. A lot of facts are missing,

but in very general terms—— Mr. BARNETT. And on page 9 of the report it says, ‘‘Lucas told

the committee that it was clear that’’—and I guess this is a quote

from you—‘‘essentially you were breaking the law,’’ by doing what

Poston had asked. Is that accurate?

Mr. LUCAS. I had—due to this investigation and with another related one that’s not here that was going on at the same time, after

she published—after a letter was published in a magazine—I don’t

know how to phrase it—where a letter from Ms. Poston saying

there was an inquiry made and certain records were found, I

thought it was getting—that there was a possibility that there may

have been a violation.

Mr. BURTON. Mr. Lucas, would you pull the mic closer so we can

hear your answers?

Mr. LUCAS. Yes, sir.

Mr. BARNETT. On page 7 it says you asked a friend to obtain the

NCIC information and you said that was an accurate statement

and that the friend Tony Gonzalez contacted a confidential source

who provided the NCIC information. You said in general terms

28

that was accurate, if I recollect. Is that accurate, what the majority

report is saying on page 7 of the report?

Mr. LUCAS. Well, first, you’re reading from a report that I am at

a little bit of a disadvantage of. If I could get a copy, I would be

appreciative.

Mr. BURTON. Could we get a copy of that report down to the witness so Mr. Lucas can take a look at that real quick? Stop the clock

so we won’t use the minority’s time.

Mr. Lucas, at the end there. Do we have any more copies of that?

We probably ought to have copies of that for the entire panel. Can

you get that down there to them so they can follow along?

Mr. PALMER. Thank you. Appreciate that.

Mr. BARNETT. This is at the top of page 7, and it’s citing to footnote 21, which is the interview that I guess the majority staff had

with you. The minority was not present for the interview.

Mr. LUCAS. Yes, I’m sorry.

Mr. BARNETT. I wanted to ask you if that’s accurate, the statement in the minority report, if it’s accurate.

Mr. LUCAS. Not the way that it’s stated, it is not accurate.

Mr. BARNETT. Could you describe what would be accurate?

Mr. LUCAS. Yes, I would. I was contacted by Ms. Poston who instructed me that she wanted to determine if I could—if myself or

the firm could obtain information of an arrest record of an alleged

incident—either an arrest or an incident that occurred back in

1963 in Seattle, WA. Obviously, a very, very unusual request because it was not a—not a U.S. citizen. I don’t think she was absolutely sure about the date of birth, but she was pretty sure, not

being a U.S. citizen, there was no social security number. And,

frankly, NCIC did not exist in 1963. That’s something I knew.

I contacted a friend, Tony Gonzalez, and said, this is a request

I have. He was retired. He wasn’t working. I said, if you—I’m trying to find out if there is an incident—how would I go about trying

to find an incident—if an incident occurred in 1963 in Seattle with

the Seattle Police Department? It was way before my time. In

1963, I was 10 years old. I didn’t know how the reporting systems

worked.

He said, let me see what I could find out. He then called me back

the next day and told me there was a record from the Bureau that

there was such an incident in 1963.

Mr. BARNETT. Did Ms. Poston direct you to gain access to restricted information from the NCIC?

Mr. LUCAS. At this request, she did not. At this request—her request was trying to determine if there was any type of report—any

type of document or report that could—that was specific as to—on

this first contact as to whether there was a report or an incident,

something she could have tangible in her hand that something occurred, which was, obviously, an unusual situation.

Mr. BARNETT. But is that unusual and improper for a lawyer to

hire a private investigative firm to ask if someone has an arrest

record, has a criminal history?

Mr. LUCAS. Yes. Yes, it is.

Mr. BARNETT. Mr. Manuel, in your experience, is that an unusual

request to hire a private investigative firm to determine if someone

has a background that involves an arrest or criminal history?

29

Mr. MANUEL. It’s very common in the investigative business to

conduct due diligence on individuals, which would include the gathering of background information and whether the individual had a

criminal background. This is done almost exclusively from private

source records such as court records, reports of conviction, that sort

of thing. But to—to request criminal background information is

very common for very legitimate purposes.

Mr. BARNETT. Mr. Lucas, going back to page 9 on the report, at

the bottom of that first paragraph. It says, quote, Lucas told the

committee that it was clear that essentially you were breaking the

law by doing what Poston had asked. Did you believe you had broken the law when you had your conversation with Mr. Gonzalez?

Mr. LUCAS. Not when I had my conversation with Mr. Gonzalez.

No, I did not believe I was breaking the law.

Mr. BARNETT. The report says, on page 25, quote, there is no

doubt that Richard Lucas’ conduct was unlawful. Do you agree

with that?

Mr. LUCAS. Bear with me, page 25, in conclusion—section, sir?

Mr. BARNETT. It’s in footnote 141, in the small print. It says, although there is no doubt that Richard Lucas’ conduct was unlawful—and the part I’m asking you about is the statement that

there’s no doubt that Richard Lucas’ conduct was unlawful.

Mr. LUCAS. That’s a legal conclusion. I performed as I stated I

performed in this testimony.

Mr. BARNETT. Well, on page 9, it says you told the committee

that essentially you were breaking the law—— Mr. LUCAS. I didn’t say—— Mr. BARNETT. The conclusion in the report that you were breaking the law. A lot of the report seems to be based on your statements to the committee, and I’m trying to understand the committee’s conclusions. They have drawn conclusions that there were illegal actions. And they seem to say that your actions were illegal.

And I’m trying to understand if they were illegal, if you believe

they were illegal, were doing anything wrong or illegal.

Mr. LUCAS. I do not believe my contact with Mr. Gonzalez was

breaking the law.

Mr. BARNETT. And your other efforts to obtain information about

Mr. Abe, did they cross the line into illegal actions?

Mr. LUCAS. I performed no other request on Mr. Abe other than

that first inquiry with Mr. Gonzalez.

Mr. BARNETT. So, to summarize, you believe your actions when

you asked someone to obtain information about the arrest record

was legal to do?

Mr. LUCAS. Well, first of all—I don’t mean to be quarrelsome,

Mr. Counsel. My request was not to—I mean, as the answer came

back in the memo, it was not an arrest record. He was not arrested, according to the information that was provided to me. So

the—but the—so it just is—there wasn’t an arrest record.

Mr. BARNETT. What I’m asking is, on page 7, it said that you had

asked Mr. Gonzalez for the NCIC information.

We went over it. It sounded like you didn’t actually ask him for

the NCIC information but instead you explained the situation, said

what was wanted was information, was this person actually arrested. You asked, could he find something out about that? And he

30

came back and found something out about that. Was that illegal,

to ask that question?

Mr. LUCAS. But that’s not what I phrased to Mr. Gonzalez. My

phrase to Mr. Gonzalez was, we have an incident that occurred in

1963. My question to him was could he determine if that—if there

was an incident involving a Mr. Abe in Seattle, WA, in 1963 on—

I think the date was—it was in March 1963.

Mr. BARNETT. Did you know that Mr. Gonzalez would look at

NCIC records?

Mr. LUCAS. Not at the time I did not.

Mr. BARNETT. Did you have any personal knowledge—do you

have any personal knowledge that anyone searched NCIC records?

Mr. LUCAS. Mr. Gonzalez, I can’t answer that with a yes-or-no

question—with a yes-or-no answer. But, in response, Mr. Gonzalez

reported back to me that he made a contact at the Bureau. He

didn’t say anything beyond at the Bureau. And there was a record

of it, as is spelled out in my report to Ms. Poston.

Mr. BARNETT. Did you ever see the record?

Mr. LUCAS. No.

Mr. BARNETT. From your perspective then, when the majority report concludes that your actions were illegal, that’s not accurate?

Mr. LUCAS. I mean, I don’t know how they—I mean, I’m sure

they didn’t do that in bad faith. But, in my opinion, I’m not a lawyer to say that my actions were illegal.

Mr. BARNETT. Let me ask you about a request you received. Your

actions of asking Mr. Gonzalez for this information were not illegal.

Would a lawyer who’s hiring you and asked you an even more general question about seeking information, background information

on somebody who had an arrest, would that be illegal?

Mr. LUCAS. I’m not trying to be confrontational again. You’re saying if a lawyer is asking me to obtain background information on

Mr. Abe—again, I’m not a lawyer. I’m a CPA by education, and I

don’t—I mean—as Mr. Manuel stated and I stated, it is common

in the investigative business for people to try to find out if there

is criminal history.

Mr. BARNETT. I guess the question I’m asking is, as I read the

majority report, the majority report is premised on, clearly, you engaged in illegal conduct.

You’re not the focus; in fact, in footnote 141, they said you cooperated with the committee, with majority side—not the minority

side, because we’ve had no contact with you until today. But the

illegality was premised on your action. And because you are, in a

sense, working at the direction of Ms. Poston, who is a subject of

a lot of the allegations here, because you did something illegal

there’s an implication she did something illegal by asking you to

do what was illegal. Your testimony here is that what you did was

not illegal. In your mind, it was appropriate to ask Mr. Gonzalez

to obtain the information; and you didn’t, in fact, ask him to go and

get information from NCIC.

Mr. LUCAS. That’s correct. I did not ask him to go to NCIC to

get that information.

Mr. BARNETT. When a client asks you to find information, you

could do that in other ways, in addition—by contacting the Justice

31

Department, you could review press clips, talk to people, do basic

research. Isn’t that part of what private investigators do?

Mr. LUCAS. Yes, it is.

Mr. BARNETT. In his opening statement, Mr. Manuel made a series of accusations about your conduct; and I think it is only fair

to give you a chance to respond to those. And I believe Mr. Manuel

said you had stolen files. Is that true? Have you ever stolen files?

Mr. LUCAS. No.

Mr. BARNETT. He said that you had taken without authority files

from the Manuel group when you left the firm; is that true?

Mr. LUCAS. That’s not true.

Mr. BARNETT. And he said that you tried to sell those files to individuals; is that true?

Mr. LUCAS. Again, that’s—that’s not true.

Mr. BARNETT. Mr. Manuel said he obtained a court judgment

against you for these actions; is that true?

Mr. LUCAS. I would—I’ll answer that with an explanation at the

end. He obtained a judgment against a company that I had contacted him with, but it was under extremely unusual circumstances, and I would like to briefly explain those circumstances.

When I left his employment, he owed me about—he owed the

company about $35,000 or $40,000. I filed a lawsuit to recover it.

The case was removed to arbitration. It was made very clear right

away I would settle for about half that amount just to collect my

moneys due.

Mr. Manuel, because of a situation involving an individual

named Orlando Castro, was out to find out as much information

about me as possible. He dragged this legal case on for over 3

years; and, remember, this is a $30,000 to $40,000 case that’s disputing.

It got so bad he drained me of money. My lawyers quit—the case

was removed to arbitration. My lawyers quit because I couldn’t afford to pay them any more 2 days before depositions occurred.

There was a three-person arbitration panel. I could not afford to

pay my arbitrator. He quit. I could not afford to pay the so-called

independent arbitrator, so he was only getting half of his fee in this

case.

At the closing, Mr. Manuel spent $120,000 in legal fees to defend

a $35,000 case that I would have settled—my lawyers told their

lawyers immediately—for $15,000 $20,000. This was a case that

Mr. Manuel used to punish me for revealing to—to government

sources of what I believe were criminal acts in a totally unrelated

incident other than the Castro case.

Mr. BARNETT. I don’t want to become sidetracked on this, but,

Mr. Manuel, I see—do you have a comment—would you like to

have any comment on this?

Mr. MANUEL. I’m just—I’m just shocked at Mr. Lucas’ explanation. We have documentary testimony in our case that Mr. Lucas

sold documents for $35,000, documents that he took from my office.

The committee should ask Mr. Lucas where did these documents

come from if he didn’t take them from the office.

The person that we got the testimony from concerning his sale

of documents for $35,000 was none other than the man who paid

32

him and put the money up, Mr. Thor Halverson, who happened to

be an adversary of Mr. Orlando Castro whose documents Mr. Lucas

stole, copied and turned over to them. He sold them. He wants to

wrap himself in the flag and say he’s a whistle-blower, but the fact

of the matter is what he’s used all this for is to gain money for

himself.

Now I wasn’t about to—in our litigation with him, I was not

about to accede to his extortionate demands for a settlement on

money that I didn’t owe him. That’s his pattern.

Mr. BARNETT. Mr. Manuel—— Mr. MANUEL. I’m reading it for the first time here, all kinds of

things in this report such as, on page 8, Mr. Lucas informed committee staff that Manuel told him he obtained this information

from Ben Brewer, his confidential source in the FBI. I don’t even

know a Ben Brewer. I have never met a Ben Brewer. I’ve never

talked to a Ben Brewer. Where he get this information, I don’t

know, but it’s typical of what he makes up. I don’t know whether

it’s in his mind or what. But I see a lot of things in this report

that’s attributed to Mr. Lucas that I would take issue with.

Mr. BARNETT. Mr. Lucas, can I ask you just to followup on that

piece? Did you tell the committee that Mr. Brewer was Mr.

Manuel’s confidential source?

Mr. LUCAS. I told the committee that Mr. Manuel told me that

he contacted a Mr. Brewer at the FBI.

Mr. BARNETT. And Mr. Manuel is saying now he doesn’t even

know Mr. Brewer. And I notice that the committee staff interviewed Mr. Brewer, and he said he wasn’t the source of any information.

Mr. LUCAS. Then those are their statements.

Mr. BARNETT. Mr. Manuel, you said in your opening statement

that you thought Mr. Lucas, I think your words were, had sold the

committee a bill of goods. Could you elaborate on what you—what

you thought may be inaccurate information that’s being committed

to the committee?

Mr. MANUEL. One example is right here. He attributes a statement to me that was never made. I’m at a disadvantage, too, because I have just gotten this thing and, in reading it over, I see

a lot of things that I would take issue with, a lot of things that I

would say that Mr. Lucas has sold the committee a bill of goods

on and has spun this thing to his advantage.

Why he’s doing it, I don’t know. I can’t answer for his motivation

except that I know that everything he does is in his self-interest

and ultimately for money. I would not be surprised—as a matter

of fact, I’ve just learned that in this very case he’s probably worked

for and given documents to the other side in this case. He can

speak to that if he wants, but it looks like that in what we’re talking about here. So I don’t see how you can say in any way, shape

or form that Mr. Lucas is a reliable informant to this committee.

Mr. BARNETT. Let me just ask you, and I understand you have

just gotten the report, about a few of the allegations that are in the

report in the same way I asked Mr. Lucas whether he agreed with

them.

The majority report says that you illegally obtained arrest

records from the Department of Justice. Do you agree?

33

Mr. MANUEL. I did not receive any arrest records from the Department of Justice.

Mr. BARNETT. On page 7 of the report it says, quote, Manuel’s

source accessed the NCIC data base and told Manual the information on Abe contained in the data base. Is that accurate?

Mr. MANUEL. It is not accurate. It’s not true. I never asked anybody to access NCIC records.

Mr. BARNETT. One of the allegations in this report is that the Department of Justice was leaking this information improperly. And

I think in the chairman’s statement, if I have it here, it says, Justice Department employees were leaking criminal records, not once

not twice but three times, in violation of the law.

The Justice Department is a pretty big entity. I think in this

committee when we say Justice Department we’re often talking

about the Attorney General or her advisers or her attorneys, but

they also have the INS, the Bureau of Prisons, the FBI. Mr. Lucas,

were any of your contacts with Justice Department lawyers in

Main Justice?

Mr. LUCAS. Not at all.

Mr. BARNETT. The information that was provided to you, did it

come through the FBI or through another part of the Justice Department?

Mr. LUCAS. The information that was provided me—to me by Mr.

Gonzalez said—as I have testified to, he said he obtained it from

the Bureau. I did not ask for an explanation. I did not ask him to

go to the Bureau.

Mr. BARNETT. The Bureau, that refers to the Bureau of Prisons,

the Bureau of the FBI?

Mr. LUCAS. I assume he meant the FBI.

Mr. BARNETT. And, Mr. Manuel, you said you received no information here so——

Mr. MANUEL. I didn’t say that. I said I never asked anybody to

access any NCIC information, nor did I ever get any information

from the NCIC, which I will stress again should be very easy for

this committee to prove because NCIC records leave an audit trail.

And if somebody went into NCIC records under the name Mr. Abe,

that record should be there. If it is not there, then nobody accessed

NCIC records.

Mr. BARNETT. Ms. Poston, let me ask, if I can, a few questions

just about the allegations of the majority report insofar as they relate to you, and let me know if I get into an area that you believe

is covered by the attorney-client privilege.

But the majority report on its heading on page 5 says, Poston Requests Her Private Investigators to Break the Law. Did you ask

anyone to break the law? It’s heading B, Poston Requests Her Private Investigators to Break the Law.

Ms. POSTON. I was just looking for it in the document. I absolutely never asked these investigators to break the law. I hired this

investigative firm because I knew of Phil Manuel’s reputation, and

I think Phil Manuel has known me long enough to know not only

would I never ask it, I would not acquiesce in it either.

Mr. BURTON. Would the gentleman yield just a moment?

Mr. BARNETT. Certainly, Mr. Chairman.

34

Mr. BURTON. It seems unusual to me, Ms. Poston, that when we

ask other questions of a similar nature that you say that you can’t

comment because of the attorney-client privilege, and yet this question just posed by the minority attorney you are answering. You

know, I don’t understand how you can be selective like that. Either

you are asserting the attorney-client privilege or you are not.

Ms. POSTON. With all due respect, Mr. Chairman, I see a distinction between the questions that are asked. Every question that was

asked by your chief counsel dealt with a document or piece of correspondence between someone that I hired under the privilege.

Mr. BURTON. Just remember what your answer was, because I’m

going to come back to this in just a moment, and I expect you to

answer.

Mr. BARNETT. Let me also ask about another heading in this report, on page 3, Rebekah Poston Illegally Obtains information from

the Justice Department. I’m not seeking attorney-client information, but I am asking if you’re able to—whether you believe you illegally obtained information from the Justice Department.

Ms. POSTON. No, I absolutely do not believe that. My FOIA requests were consistent with the Attorney General’s policy that was

announced before I was even retained in this case. On October 4,

1993, the Attorney General issued a memorandum to all the Department agencies wherein she stated that, and I quote, the principle of openness in government must apply at each and every disclosure and nondisclosure decision.

And when I was making an application on FOIA, I received various responses back from the Department of Justice. The Bureau

of Prisons stated that they had searched certain types of records.

They indicated their computer index was searched. They indicated

that their data base was searched, and they found nothing.

We received also from the Department of Justice a response from

Immigration, which is part of the Department of Justice, as I said;

and Immigration said they had searched their microfilm and their

reels, and they found a record. They didn’t ask me for a privacy

waiver. They didn’t ask me for a signed statement. They said the

record is illegible, and we need to enhance it. They engaged the

service of the FBI that helped Immigration enhance that document.

I sent a letter saying I would be coming by—not myself but my

investigator, Mr. Kelly—to pick up the record from Immigration.

They searched the records, identified where they searched, said

they had a record. Then, when they enhanced it through the assistance of the Bureau, they were able to see it was Nobuo Abe, but

it was a different date of birth; and so therefore I, of course, could

not get the record.

So—and then when I finally, you know, argued my appeal and

set forth my law, when I received the decision back from Associate

Attorney General Schmidt, in his letter he said that—and I’d like

to just quote it because I think it’s consistent with the policy and

what my arguments were—after considering your Freedom of Information Act request under Attorney General Reno’s policy of undertaking discretionary disclosure of information whenever no foreseeable harm would result, the Associate Attorney General, John R.

Schmidt, has determined that it is appropriate to disclose the fact

that neither the Federal Bureau of Investigation nor the Executive

35

Office of the U.S. Attorneys maintains or has any evidence of ever

maintaining this factual conclusion—excuse me, any record within

the scope of your request.

And so I guess what is hard for me to understand from the chairman’s position—and I haven’t read your summary paper here, but

I know what you think I have done—and I just don’t know how it

could be considered improper to acquire government property

which the government says I’m entitled to and then, when they

grant my request, they say there is no property to get.

Mr. BARNETT. Ms. Poston, I see my time is going to expire pretty

soon. I think probably on the second panel will be an opportunity

to get more into this about the Freedom of Information Act issues.

Let me just summarize, if I could, the issues.

Mr. Lucas, if you’d pay attention, because if I say something

wrong you should correct me. But my understanding is you never

directly contacted the NCIC. You asked Mr. Gonzalez to find information, but you never directly asked him to contact NCIC. You

never saw any records personally from NCIC and have no personal

knowledge of any records from NCIC. Ms. Poston never directly

asked you to get these confidential records from NCIC. Ms. Poston

never saw a record, a physical record that came from NCIC. And

your only contract to obtain information was from Mr. Gonzalez,

who may have made other contacts in trying to respond to your request.

Is all that accurate?

Mr. LUCAS. There was a lot to summarize there. As to—I’d say

most of it was accurate, yes.

Mr. BARNETT. If that’s accurate, it seems to contradict many of

the major conclusions in the report that was released by the majority staff today.

Mr. BURTON. Gentleman’s time has expired.

We’ll start my 30 minutes now, and I’ll yield some to my colleagues if they so wish.

Did you receive, Mr. Lucas, a fax from Ms. Poston which said,

please give answers to as many of these as you can and be specific.

This is a matter of serious importance. I hope because this is a

Federal holiday that we can access the necessary research.

This memo was dated November 11, 1994.

Do you recall receiving that?

Mr. LUCAS. Yes, I do.

Mr. BURTON. Along with that did you receive a letter addressed

to Ms. Poston that was from a George Odano?

Mr. LUCAS. Yes, I did.

Mr. BURTON. Ms. Poston, did you read this letter from Mr.

Odano? It is dated November 10, 1994.

Ms. POSTON. May I have a moment, please?

Mr. BURTON. Sure.

Ms. POSTON. I have no independent recollection of having read

it. I imagine that I probably did, but I don’t recall reading it.

Mr. BURTON. You sent this memo, and it says, ‘‘Please get answers to as many of these as you can and be specific.’’ You wanted

specificity. ‘‘This is a matter of serious importance.’’ And then you

allude to a Federal holiday, and that would indicate that certain

36

records could not be accessed because you couldn’t get them from

Federal agencies.

Let me read from this letter that was sent to you from Mr.

Odano. ‘‘Is the name on the NCIC file Nobuo Abe?’’ ‘‘According to a witness, the incident took place at or around

March 19, 1963. How much information about the date of the incident does the data carry’’—again referring to the NCIC file. ‘‘Does

it say that it took place on March 1963, or does it state the exact

date?’’ ‘‘Is the date of birth on the NCIC file December 19?’’ ‘‘What does SOL PROS mean?’’ ‘‘Did your source have access to the NCIC file that the FBI kept,

or was it some other data base?’’ And it goes on and on all talking about the NCIC file.

You sent this letter to Mr. Lucas with a memo, and you faxed

it to him, which was pretty urgent: Please get answers to as many

of these as you can. It is a Federal holiday. I hope that we can access—even though it is a Federal holiday, we can access the necessary research. There was a signal of urgency. You knew that

there it was a Federal holiday, and the memo which you say that

you don’t remember reading is all about getting information from

the NCIC. Don’t you find that a little strange? This was your client. You got the letter and sent it to them. You don’t remember it;

is that correct?

Ms. POSTON. I am telling you that I do not independently recall

reading this. This is my handwriting. I told you that. It is obvious

that I sent it. Whether I sent it on for answer and whether I read,

I can’t recollect. I said I probably did.

Mr. BURTON. Do you remember the memo you sent?

Ms. POSTON. I don’t remember any of this, but it is obviously my

handwriting, and I obviously sent it.

Mr. BURTON. I can’t tell you how much selective memory loss I

have had to endure over the past 3 years, but it is a bunch. Here

is something from the same memo I just read to you excerpts from.

Here is something that really troubles me. I will read you two sentences that you received and passed along to your private investigator.

As I have already informed you, the information that the source

of our Federal Bureau of Prisons gave us is much more detailed

than you gave us today. Do you have any idea for the difference?

Who had the source at the Bureau of Prisons?

Ms. POSTON. I don’t know that.

Mr. BURTON. Do you know the name of the Bureau of Prisons

source?

Ms. POSTON. I don’t know if there is a Bureau of Prisons source

or the name.

Mr. BURTON. You never talked to any person at the Bureau of

Prisons?

Ms. POSTON. Never.

Mr. BURTON. Do you know where the source of the Bureau of

Prisons got the information about Mr. Abe?

Ms. POSTON. I don’t know anything about a source from the Bureau of Prisons, Mr. Chairman.

37

Mr. BURTON. Item 6 in this letter that was sent to you which you

sent on with the urgent memo which I perceive is an urgent memo

to Mr. Lucas, item No. 6: ‘‘As I have already informed you, the information—he is saying this to you in the letter. As I have already

informed, you, Ms. Poston, the information that the Bureau of Prisons gave us is much more detailed than the one you gave us today.

Do you have any reason for this difference? Is it possible that the

NCIC file that the Federal Bureau of Prisons keeps is different

from the one that the FBI keeps’’—indicating that there was FBI

access as well. ‘‘Please note according to our source, the data base

that he accessed was called NCIC-NATF. We believe that the

NATF is the data base of the Department of Treasury, Bureau of

Alcohol, Tobacco and Firearms.’’ You don’t recall that either?

Ms. POSTON. The date of the letter is November 1994. You are

asking me what is said here. Other than looking at it today, I have

no independent recollection of that, sir.

Mr. BURTON. Was this a pretty lengthy case? How long did you

have this case? How long was this going on?

Ms. POSTON. The case was in existence 2 years before I was retained. I was retained in 1993—1994, excuse me. 1994.

Mr. BURTON. How long did you have the case?

Ms. POSTON. Probably a couple of years.

Mr. BURTON. So it was a pretty important case?

Ms. POSTON. I think every one of my clients is important.

Mr. BURTON. But it was not something that was a snap case.

Ms. POSTON. If you are trying to ask me, Mr. Chairman, whether

I remember this letter, this is my handwriting on the cover page.

This is dated November 1994. I obviously forwarded it because it

is my handwriting.

Mr. BURTON. Well, I think the letter and the memo pretty much

speak for themselves. You are asking that this information that

was in the letter be looked into very, very quickly by Mr. Lucas,

and you—there definitely is a sense of urgency in the letter. The

letter that was sent to you alludes over and over and over again

to the NCIC file, and it also alludes to information that you gave

them regarding the sources that you had. It mystifies me that you

don’t remember any of that.

Here is a memo, Mr. Lucas, dated December 28, 1994, from—it

is exhibit No. 19 if you want to look it up. It is from you to Mr.

Manuel. Excuse me, it is from Lucas to Manuel. It is regarding the

Poston inquiry. It says, ‘‘New Assignment.’’ And in paragraph 3 it

says—let’s go back to paragraph 2. Let’s just start at the top.

‘‘On Tuesday I had a conversation with Rebekah Poston and she

provided the following information and request that we undertake

a new assignment on the case.’’

‘‘She stated—this is Ms. Poston, Mr. Lucas—she stated a handwritten record was kept by their source—their source—at the Federal Bureau of Prisons as to the incident involving Abe. The notes

were as follows:’’

‘‘March 1963, NCIC-NATF, complaint by four females of possible

pandering and solicitation by a bald Oriental male, no English, at

12:40 a.m., taken in for questioning at 1:30 a.m., no English. Detained and released at 3:30 a.m., forwarded by teletype.’’

38

‘‘The source noted numerous notations on the NCIC inquiry, including but not limited to NCIC-NATF, NLETS-CJIS, WITSC,

SENTRY.’’ ‘‘Poston requested that we undertake the following assignments:’’ ‘‘Confirm the notations from the source are legitimate and determine their meaning.’’ ‘‘Do these notations reflect data bases that are accessible through

the Bureau of Prisons?’’ ‘‘Can a local law enforcement agency such as the Seattle Police

Department access the same information through the Bureau of

Prisons?’’ ‘‘If the previous information on NCIC was deleted and transferred to the FBI foreign counterintelligence file, is this information

retrievable by Abe through FOIA and Privacy Act requests?’’ ‘‘Is it possible to determine if the information is recorded in the

FBI foreign counterintelligence file?’’ Six, ‘‘a response was received on a FOIA request. A section of the

response was stated on January 17, 1983, the combined NCIC-CCH

file was abolished. What is the NCIC-CCH file, and does it have

any bearing on our inquiry?’’ Do you recall that memo, Mr. Lucas?

[Exhibit 19 follows:]

39

40

41

Mr. LUCAS. I could recall preparing the memo, yes.

Mr. BURTON. And you sent it to Mr. Manuel?

Mr. LUCAS. Yes.

Mr. BURTON. Did you receive that, Mr. Manuel?

Mr. MANUEL. I don’t recall seeing this before. I may have, but

I don’t recall it.

Mr. BURTON. You don’t recall it.

Mr. MANUEL. Not right now. This is the first time that I have

seen it. We are talking about something 6 years ago, and I have

not had anything to refresh my recollection.

Mr. BURTON. But the memo states clearly that Ms. Poston provided the following information, that she had a handwritten record

that was kept by their source at the Federal Bureau of Prisons as

to the incident involving Abe.

Mr. MANUEL. The memo to me says that this is what Mr. Lucas

is saying that this is what Ms. Poston said. I have to tell you I am

very skeptical about anything that Mr. Lucas says. I think I have

made that clear during this hearing.

Mr. BURTON. Why would he make that up?

Mr. MANUEL. That is a good question. Over here in mid-December—in your exhibit 51, page 2, in mid December 1994, counsel for

some gentleman was approached by an anonymous informant Mr.

Lucas. Mr. Lucas was able to relate to us that over a period of

time—what I am saying, Mr. Chairman, at the same time he is

writing these memos, he is contacting the other side to go to work

for them. Now, I find it very difficult to believe anybody who is engaged in that type of activity.

[Exhibit 51 follows:]

42

43

44

45

46

Mr. BURTON. I don’t think that is the same time, according to our

counsel, but——

Mr. MANUEL. It is what it says in your document, and I am reading it for the first time.

Mr. BURTON. Ms. Poston, you just told us that you didn’t know

anything about a source at the Bureau of Prisons, and that is not

what this document says, Ms. Poston?

Ms. POSTON. Yes.

Mr. BURTON. Did you know somebody at the Bureau of Prisons?

Ms. POSTON. I don’t know anyone at the Bureau of Prisons, sir.

Mr. BURTON. Do you know anything about a source at the Bureau of Prisons? Let me read you this, and you just tell me if it

is accurate. It says, on Tuesday——

Mr. PALMER. Excuse me, Mr. Chairman, what exhibit number

are you reading from?

Mr. BURTON. Exhibit 19.

Mr. Lucas says to Mr. Manuel in this memo: ‘‘on Tuesday I had

a conversation with Rebekah Poston, and she provided the following information and request that we undertake a new assignment

in the case:

‘‘She stated a handwritten record was kept by their source at the

Federal Bureau of Prisons as to the incident involving Abe. The

notes were as follows,’’ and it goes on.

Ms. POSTON. With respect to that question, Mr. Chairman, that

would involve an attorney/client communication, and I believe the

document will speak for itself.

Mr. BURTON. You know, a while ago when I interrupted the

counsel for the minority, it was on this subject, and I said I would

come back to this in a moment, and you were very open and anxious to answer the question that he gave to you. How is it that you

could answer that question, and you can’t answer this one?

Ms. POSTON. Because I believed when I responded to him that

there was a difference in the question that was being asked me.

You are asking about a communication I had with a client——

Mr. BURTON. Can you pull the microphone closer?

Ms. POSTON. I believe there was a difference in the types of questions that were put to me. What you are asking me would require

me to tell you something that a client told me. The client told me

that I am to assert that privilege here. I can’t do that under the

privilege.

Mr. BURTON. This memo is not about a client. This is a source

at the Bureau of Prisons. It says that you got the following information, and you stated that a handwritten record was kept by

their source at the Federal Bureau of Prisons as to the incident involving Abe, and it goes into detail about the notes, and you can’t

comment on that.

Ms. POSTON. This memo was created as a result of communications with the client and then was passed on to investigators who

were engaged by a client.

Mr. BURTON. You said earlier that you didn’t know about a

source at the Bureau of Prisons. Now you say that you can’t answer about the source because of a privilege.

47

Ms. POSTON. No. My recollection—and my counsel refreshes my

recollection also that your question was did I know the name of the

source at the Bureau of Prisons, and I do not.

Mr. BURTON. You said, I don’t know anything about a source at

the Bureau of Prisons. You said, I don’t know anything about a

source at the Bureau of Prisons.

Ms. POSTON. And your question?

Mr. BURTON. And now you say—that statement evidently waived

the privilege that you are taking right now. You were going into

some detail about any source at the Bureau of Prisons, and now

you are saying that you can’t answer because of that privilege. And

you said that you didn’t know about a source at the Bureau of Prisons, and you are still taking that position?

Ms. POSTON. I am still taking that position.

Mr. BURTON. Mr. Horn, do you have any questions?

Mr. HORN. I thank the chairman.

Mr. Lucas, let me start with some basics here. Do you know if

the Justice Department was provided with information indicating

that Rebekah Poston and Phil Manuel and you were involved in illegally obtaining NCIC records on Nobuo Abe?

Mr. LUCAS. Do I know if the Justice Department knows this?

Mr. HORN. Do you know if the Justice Department was provided

with the information indicating that Ms. Poston, Mr. Manuel and

you were involved in illegally obtaining NCIC records?

Mr. LUCAS. The documents that we are reviewing now were

turned over pursuant to a grand jury subpoena to a Federal agent

in February 1998.

Mr. HORN. Did you ever offer to cooperate with the Justice Department?

Mr. LUCAS. Yes, they asked me to.

Mr. HORN. Did you ever provide information on this matter to

agents from the Treasury Department inspector general?

Mr. LUCAS. Yes. I was interviewed by him on a number of occasions.

Mr. HORN. Was that at his initiation or at yours?

Mr. LUCAS. He contacted me.

Mr. HORN. And that was based on what? Why would he contact

you?

Mr. LUCAS. He contacted me because I was at one time a registered informant for the U.S. Customs Service, and Mr. Manuel

and his lawyers—I was a registered informant concerning drug

money laundering, and Mr. Manuel and his attorneys made that

information public, to my great detriment. Once they made that information public, I filed a complaint with the U.S. Customs Service,

which stated—I didn’t file the complaint. I went to the control

agent, and she filed the complaint. They then had the inspector

general come out and interview me.

Mr. HORN. After you provided the records to the Treasury inspector general, did they ever followup with you about the matter?

Mr. LUCAS. What I refer to as the Japanese situation?

Mr. HORN. That’s right.

Mr. LUCAS. They asked questions about it, but followup is hard

for me to define. They asked questions about it, yes. I don’t know

what the result of it is, what I should say.

48

Mr. HORN. So you were never told? Despite your helpfulness, the

IG did not tell you to what extent your information helped?

Mr. LUCAS. No. In fact, in February 1998 I was told by the agent

for the inspector general’s office of the Treasury Department that

he was no longer permitted to talk to me.

Mr. HORN. In other words, they just cut you off in terms of the

contacts; is that right?

Mr. LUCAS. That’s right.

Mr. HORN. We have various records, exhibits 48 and 50, and you

might wish to take a look at exhibits 48 and 50. 48 is dated February 13, 1997, and that is a letter from John C. Gibbons of the

Oso Group, Limited, to Mr. Michael A DeFeo. This indicates that

on four separate occasions a lawyer named John Gibbons tried to

provide this information to the Justice Department and FBI; is

that correct?

[Exhibits 48 and 50 follow:]

49

50

51

52

53

54

55

Mr. LUCAS. I’m sorry, I just asked my counsel a quick question.

Can you repeat the question?

Mr. HORN. Sure. The first exhibit is No. 48, and it is the Oso

Group, Limited, a firm in San Francisco, CA. It is noted, privileged

attorney/client work product prepared under the supervision and

direction of counsel. This is a letter from John C. Gibbons to a Michael DeFeo, Unit Chief, Office of Professional Responsibility, Federal Bureau of Investigation, and this is re the two Buddhist group.

And here is the message.

It was a pleasure speaking with you several weeks ago. I wanted

to let you know that I will be in Washington, DC, during the week

of February 24. I know that the issues aired in my December 13,

1996, letter to Mr. Mislock are complicated and at times can be

sometimes convoluted. If you would like, I will make myself available to you so that we might discuss with you our concerns regarding the allegations contained in our papers. I expect to be traveling

quite extensively.

That is signed—it isn’t signed, but it is typed, John C. Gibbons.

What you have here, looking at the other few—that is No. 50, I

believe, and, again, 50 is Oso Group stationery, May 28, 1997, and

then this is a very extensive letter here, and I wondered since your

name appears quite a bit in it, in this letter of John C. Gibbons

to David Ries, Esquire, Deputy Chief, Office of Professional Responsibility, Federal Bureau of Investigation, the question would

essentially be do you recognize that as a factual statement in

that—those letters that you have looked at or that we have discussed for just two of them?

Mr. LUCAS. The first one, Congressman Horn, was very brief. I

have never seen that letter before, and I have never seen this letter

before. It is four pages long. If you want me to read it, I will.

Mr. HORN. Well, I think—— Mr. LUCAS. Unless you want to direct me to a specific part, and

I will respond to it.

Mr. HORN. The question will be to what did the FBI’s professional responsibility group ever talk to you?

Mr. LUCAS. I don’t know. I don’t know titles of FBI agents. If an

FBI agent says he is from a field office, if he is from a—you know

what I am trying to get at. I don’t know—I did talk to FBI agents

and—but I really don’t know—no disrespect, I don’t know the question that you are trying to get at.

Mr. HORN. I am trying to get at the degree to which when you

have given them information or others have given them information, did they ever get off the seat and say, we want to look into

that?

Mr. LUCAS. I believe in this case they did, but I don’t know what

the result was.

Mr. HORN. What other government agencies did you talk to on

these cases? We have talked about the Treasury. We have talked

about the FBI. What else?

Mr. LUCAS. And the Drug Enforcement Administration and the— the Drug Enforcement Administration, the U.S. Customs Service,

and FBI and the Office of Inspector General.

Mr. HORN. To what degree did they followup on information that

you gave them?

56

Mr. LUCAS. I don’t know, because obviously they don’t tell me

what they are doing. I turned over records. I don’t know, sir.

Mr. HORN. Mr. Chairman, I pass the time back to you. We have

some other things to followup.

Mr. BURTON. I apologize. There are a couple of questions that I

wanted to direct at this panel before we get onto the next one.

Here is a memo from you, Mr. Manuel, to Rebekah Poston, and

it says, this is to report that a highly confidential—this is exhibit

No. 18, if you care to look at it. It says:

This is to report that a highly confidential and reliable source has advised as follows regarding the subject of your inquiry:

Whatever files or references either in data base form or hard copy form, which

were available previously have apparently been purged. There are currently no derogatory references to the subject of your inquiry in any files maintained by or

under the control of the Department of Justice or any of its investigative agencies.

Specifically, there is no information in NCIC.

How did you know that?

[Exhibit 18 follows:]

57

58

59

Mr. MANUEL. It was a conclusion I arrived at by talking to some

people in the FBI who I contacted and asked about the NCIC and

whether it would be possible for an arrest which was made in—

purportedly made in 1963 to be in NCIC files. I posed my questions

to the people I talked to in the FBI in hypothetical terms, and I

got answers back that indicated if that was the scenario, no record

could exist in the NCIC, and that is what I reported.

Mr. BURTON. If they said there was nothing in there——

Mr. MANUEL. They didn’t say there is nothing in there. That is

what is contained in here. I am not quoting them directly.

Mr. BURTON. It doesn’t say that.

Mr. MANUEL. I know that it doesn’t say that.

Mr. BURTON. It doesn’t say your conclusion. It says, ‘‘Whatever

files or references either in data base form or hard copy form,

which were available previously have apparently been purged.

There are currently no derogatory references to the subject of your

inquiry in any files maintained by or under the control of the Department of Justice or any of its investigative agencies. Specifically, there is no information in NCIC.’’

I mean, this is——

Mr. MANUEL. Mr. Chairman, I know it is difficult for you to understand, but I made that conclusion based on what was told to me

based upon how the NCIC operates, not that somebody went into

NCIC to get the information. I never asked anybody to do that.

And as I pointed out to you and the committee, it is very simple

to determine whether anybody ever checked NCIC because there is

an audit trail.

Mr. BURTON. Well, let’s go back to your memo of September 8,

1995. That is exhibit No. 41. ‘‘As part of’’—item 11 on page 2, ‘‘as

part of PMRG’s investigation, I contacted a confidential and highly

reliable source who I believed would be able to determine whether

the Federal Government had the documentary evidence.’’

‘‘My source told me there was a Federal Government record for

Mr. Abe which referred to suspicion of solicitation of prostitution,

Seattle Police Department, March 1963.’’

‘‘My source told me that there was a Federal record, Federal

Government record.’’

‘‘My source further told me that the record concerning Mr. Abe

reflected that the Seattle Police Department had made an inquiry

for information.’’

‘‘My source also told me that if Mr. Abe made an official request

for information under his name to be removed from the record, it

could be removed.’’

‘‘Sometime later my source informed me that the record concerning Mr. Abe apparently had been purged.’’

Mr. MANUEL. Nothing that you have read relates to NCIC—as

far as I can determine—to NCIC information. The procedure would

have been had there been an arrest in Seattle in 1963, as I understand it, that information would have been sent not to NCIC, because it didn’t exist at that time, it would have been sent in like

a teletype type of communication. Had that been done, the information would have been there.

60

Mr. BURTON. You are so specific. You are so specific in this letter.

In both of these memos, there is no indication whatsoever that

these are opinions. ‘‘My source further told me that the record concerning Mr. Abe

reflected that the Seattle department—Seattle Police Department

made an inquiry.’’ ‘‘My source also told me that Mr. Abe made an official request

for information, and his name would be removed.’’ ‘‘Sometime later my source told me that the record concerning

Mr. Abe had been purged.’’ They had to look at the NCIC records.

Mr. MANUEL. I disagree with you. I don’t think that anybody

looked at NCIC records that I know of. I never asked anybody to

do it.

Mr. BURTON. How did they know it had been purged?

Mr. MANUEL. Because it wouldn’t have been there in the first

place, Mr. Chairman.

Mr. BURTON. What does purged mean?

Mr. MANUEL. I interpret purged to mean to be taken out of something, or not have existed or—— Mr. BURTON. If it was purged, it was there in the first place?

Mr. MANUEL [continuing]. Redacted.

Quarrel with my choice of words, Mr. Chairman, but I am telling

you, I didn’t ask anybody to check NCIC, and it is very easy to determine that.

Mr. BURTON. Sometime later my source informed me that the

record concerning Mr. Abe had been purged.

Mr. MANUEL. ‘‘Apparently had been purged.’’ Mr. BURTON. Apparently had been purged.

Mr. MANUEL. Apparently, Mr. Chairman.

Mr. BURTON. We will now go to the 5-minute rounds. Let me

start with Mr. Horn, and then we will go to Mr. LaTourette.

Mr. HORN. Mr. Chairman, I pass to Mr. LaTourette.

Mr. LATOURETTE. Ms. Poston, if you would look in the exhibit

book, it is exhibit 15 in that specific document. It is written on the

letterhead of your law firm to your client, and it says, ‘‘PMRG’’—

Mr. Manuel’s outfit—‘‘reported to us on November 17, 1994, that

a source within the U.S. Government, Washington, DC, was contacted, and the source confirmed that there is a record for’’ the gentleman in question.

First of all, who is the source within the U.S. Government that

you are referring to in that document?

[Exhibit 15 follows:]

61

62

Ms. POSTON. First of all, Mr. LaTourette, this is a direct communication with my client, so I will assert the attorney/client communication privilege here.

Mr. LATOURETTE. Let me go to exhibit No. 21, if I could, and exhibit No. 21, I think, is a newsletter that is put out by your client

or the organization to which your client belongs. Do you find that?

[Exhibit 21 follows:]

63

64

65

66

67

Ms. POSTON. Yes.

Mr. LATOURETTE. Do you know who Mr. Langberg is?

Ms. POSTON. Mr. Langberg is an attorney who represents Mrs.

Clow and I believe may have represented Soka Gakkai International as well.

Mr. LATOURETTE. In the same matter or litigation by which you

were retained by these folks or a different matter?

Ms. POSTON. A different matter.

Mr. LATOURETTE. If you can flip to the last page, and let me see

how many pages this is. It looks to me like the fourth page of exhibit No. 21, Mr. Langberg in this newsletter is being interviewed

by someone interested in this matter, and on page 4 next to the

picture of the Olympic Hotel in Seattle, which is now the Four Seasons Olympic Hotel in Seattle, that looks to me in the first column

on the left, Mr. Langberg has basically reprinted the letter that I

was alluding to. Do you see where I am talking about?

Ms. POSTON. Yes.

Mr. LATOURETTE. Again, going back to my previous observations

when I was here before about the attorney/client privilege, I assume you know, aside from the fact that the Congress doesn’t recognize the privilege, you also are aware based upon your many,

many years of service as an attorney that the publication of a communication waives the attorney/client privilege; does it not? You

are aware of that exception, aren’t you?

Ms. POSTON. Could I speak to two things that you have raised

here?

Mr. LATOURETTE. I would like you to answer that first question,

and then you can tell me whatever you would like to tell me.

Isn’t it true that the publication of a communication in this case

by your client is a waiver; is it not?

Ms. POSTON. I believe there is a waiver in certain circumstances,

but I also have two clients. I have Mrs. Clow, and I have Soka

Gakkai as a client.

Mr. LATOURETTE. Right, but this is their newsletter?

Ms. POSTON. The World Tribune?

Mr. LATOURETTE. The SGI-USA newsletter. Isn’t that published

by the organization that you represented?

Ms. POSTON. I don’t know. It may be, but I don’t know.

Mr. LATOURETTE. The fact of the matter is—is there something

else that you wanted to say?

Ms. POSTON. Just the point about the privilege that you have

commented about. When I looked at the Florida bar rules that govern my conduct, it stated that while a tribunal may not observe or

recognize the attorney/client privilege or attorney work product

privilege, it also said that the attorney had a right to exhaust all

appellate remedies before breaching that privilege. And so the committee is clear, that is the rule which I am going under, especially

in light of the instructions that I have received from my client.

Mr. LATOURETTE. The one client is dead?

Ms. POSTON. The privilege still applies to the extent that she did

not waive the privilege.

Mr. LATOURETTE. So you don’t accept my observation on exhibit

21?

68

Ms. POSTON. What I said is whether or not that would be deemed

a waiver of the privilege might be something that we disagree on.

Mr. LATOURETTE. And you have reached a conclusion that it does

not?

Ms. POSTON. We believe that we have a legal argument that it

does not.

Mr. LATOURETTE. I am asking what you think. You think that

it is not waived even though this showed up in a newsletter and

was used to influence this public relations war between Buddhist

sects? Even though here it is, and your letter has been published

for public consumption, you still think your opinion or your lawyer’s opinion is that you haven’t waived the privilege? It has not

been waived; is that right?

Ms. POSTON. May I have a moment, please?

Mr. LATOURETTE. Sure. You can have all of the time that you

want.

Mr. BURTON. Does the gentleman yield back his time?

Mr. LATOURETTE. I am waiting for an answer.

Mr. BURTON. I would be happy to yield my 5 minutes to you if

you would like to continue your questioning.

Mr. LATOURETTE. Thank you very much.

Ms. POSTON. Mr. Congressman, I am not prepared to say that

this would be a waiver. If the committee would like to submit to

me your basis in the law why you believe it is, I would be happy

to respond to why we think that it is not.

Mr. LATOURETTE. Have you had conversations with Mr.

Langberg during the course of this representation of clients? Have

you talked to him?

Ms. POSTON. Yes.

Mr. LATOURETTE. Specifically did you talk to him about this letter that he has published in this newsletter?

Ms. POSTON. I wouldn’t be able to disclose that because of an attorney/client communication and a joint confidentiality agreement.

Mr. LATOURETTE. Did you provide a copy of that letter to Mr.

Langberg?

Ms. POSTON. Yes.

Mr. LATOURETTE. Had you ever seen exhibit 21 before?

Ms. POSTON. Yes, I have.

Mr. LATOURETTE. So you are aware that Mr. Langberg published—did you ever talk to him about that? What is his first

name?

Ms. POSTON. Barry.

Mr. LATOURETTE. Did you ever call him, Barry, why did you put

my letter in your newsletter?

Ms. POSTON. I wouldn’t be able to disclose that based upon attorney/client communication.

Mr. LATOURETTE. Have you had conversations with Mr.

Langberg about the letter since you became aware that it was in

this newsletter?

Ms. POSTON. Yes.

Mr. LATOURETTE. OK. Well, let me go to another exhibit. That

is a fax, exhibit No. 38, for those following along in their programs.

Exhibit No. 38 is a fax that you sent to Mr. Lucas on the 12th of

69

July, 1995, and although we can—I wish the quality of the fax was

a little bit better, and let me just flip there myself.

You had just been told by the Justice Department the previous

day—or you had just been told the previous day that the Justice

Department didn’t have a record of any information pertaining to

Mr. Abe. You had also been told there was no evidence that a

record had ever been retained at the Justice Department. You

asked Mr. Lucas and Mr. Manuel to verify ‘‘to the extent of your

abilities what the phrase: ‘. . . or has any evidence of ever maintaining,’ means with respect to the various records that were

searched.’’ What did you expect your investigators to do, Mr. Manuel and

Mr. Lucas, to comply with this request that you made on July 12,

1995?

[Exhibit 38 follows:]

70

71

Ms. POSTON. With respect to the communication here with an investigator, I would not be able to answer that based upon the attorney/client work product privilege; but I can assure you that at no

time did I advise them to do something which would constitute a

violation of the law.

Mr. LATOURETTE. Maybe we can talk more in the abstract rather

than specifically on exhibit No. 38. When you wrote this, it wasn’t

your expectation that they were going to be—I mean, the answer

to this question was going to come from a search of the Federal law

enforcement records contained in the NCIC? Where else would a

person get information like this?

Ms. POSTON. The answer is no.

Mr. LATOURETTE. That wasn’t your expectation, OK.

Do you remember why you made this request?

Ms. POSTON. I can’t answer that. It would call for my communication and thought process.

Mr. LATOURETTE. On July 19, 1995, which is exhibit 39, you sent

a letter to Mr. Manuel and Mr. Lucas. If you can locate that for

me. I want to draw your attention to the point of the letter that

quotes, I can only conclude that since a record existed, which your

two independent sources verified, the places searched and enumerated in Mr. Huff’s letter must not have been proper locations.

Who was Mr. Manuel’s source?

[Exhibit 39 follows:]

72

73

74

75

Ms. POSTON. I will not be able to divulge that because it would

be attorney/client privilege.

Mr. LATOURETTE. We respectfully disagree.

Did Mr. Manuel ever advise you that he had a source within the

Justice Department concerning this record that is referred to in the

letter that you can’t talk to me about?

Ms. POSTON. I have to assert the same privilege.

Mr. LATOURETTE. Mr. Manuel, did you receive this letter of July

19, 1995, from Ms. Poston?

Mr. MANUEL. I don’t have a specific recollection of receiving it,

Mr. Congressman, but I won’t dispute that I may have received it.

What I would like to say, though, that to the best of my memory,

my participation in this case had ended some time before that. And

so if I did get this letter, I don’t think I took any action on it.

Mr. LATOURETTE. But again——

Mr. MANUEL. I am just trying to answer your question.

Mr. LATOURETTE. Going again to that section, which your two

independent sources verified, did you have two independent sources

which verified this information?

Mr. MANUEL. No. The letter went to Lucas. I think that refers

to sources that Lucas had and a source that I may have had.

Mr. LATOURETTE. So you had one, and Mr. Lucas had one?

Mr. MANUEL. I didn’t have one single solitary source. I talked to

several people during the course of this from November-December

1994. I don’t recall having any conversations with anyone past that

date.

Mr. LATOURETTE. OK. And who was your source?

Mr. MANUEL. There was not a single source, Mr. Congressman.

If you want, I can explain my memory as to what I did in this case.

When I received notification of this case all from Mr. Lucas, I

never talked to Ms. Poston about it directly. My information about

this case came from Mr. Lucas. When I got this information, I

called the office of a man, and this is going to be coincident, but

his name was Manuel Gonzalez, who was the Assistant Director of

the FBI in charge of administration.

When I called his office, I found out that I couldn’t speak directly

to him, and the reason I couldn’t speak directly to him, and I am

not clear on this, either he had passed away, or he was getting

some treatment for cancer or something.

I might explain to you that I knew Mr. Gonzalez from our mutual service on the President’s Commission on Organized Crime.

Mr. Gonzalez was the chief investigator on that Commission, and

I was a member of that Commission.

So I was told that Mr. Gonzalez was not available. I then asked

for someone in his office who could assist me in answering some

questions about the NCIC, and I posed those questions to an individual, who passed me on to another individual, who passed me on

to another individual.

During the course of my inquiries on this matter, I may have

talked to four or five different people. Other than Mr. Gonzalez’s

name, I truthfully do not recall the names of the people that I

spoke to who were mostly administrative people and who answered

hypothetical questions for me as to the circumstances surrounding

76

this address and what would have happened or what may have

happened and in that vein.

So all that activity took place within maybe a 2-month period.

After that, I don’t recall any participation that I have had in answering any or making any inquiries in this case or anything else.

I hope that is helpful.

Mr. LATOURETTE. That is helpful, and I appreciate it.

Mr. HORN [presiding]. I thank the gentleman.

Mr. Manuel, let me ask you, has anyone from law enforcement

ever interviewed you about this Soka Gakkai group? Had anybody

from law enforcement, FBI, anyone, ever interviewed you?

Mr. MANUEL. I have only been interviewed on several occasions

by members of the majority staff of this committee. I am a little

bit distressed to see that in your report you say that Mr. Lucas is

the only one who has cooperated. I have never refused to cooperate

with any member of this subcommittee staff or this subcommittee.

To directly answer you, I have never been approached or interviewed by any person from the FBI concerning this particular matter.

Mr. HORN. Ms. Poston, has anyone from the law enforcement

ever interviewed you about the Soka Gakkai case?

Ms. POSTON. No, sir.

Mr. HORN. Let me just go back a minute to get the relationship

of Mr. Gibbons here. He has a letter. This is exhibit 51. He has a

very extensive letter on this whole case, and the part that would

be relevant to Ms. Poston is on page 3.

And he says, in addition to these activities—and that was a number of things on the first few pages—Ms. Poston initiated broadranging meetings and inquiries within the Department of Justice

at Attorney General Reno’s offices and at the FBI headquarters,

Washington, DC. Indeed, in January 1995, Ms. Poston met with

representatives of the FBI in an attempt to accelerate a Freedom

of Information Act request that she had caused to be made with

the Bureau. This is in relation to the disclosure of their findings

to her and Ms. Clow might not be appropriate under the act. Apparently Ms. Poston redoubled her efforts and made a series of applications and requests through the Department of Justice and a

former colleague of hers at Steel, Hector & Davis, who was then

employed at the Department of Justice. And after a denial of her

Freedom of Information Act requests was handed down, she made

an appeal in February 1995 and eventually was granted her request after a meeting with John R. Schmidt, Esquire, the then Associate Attorney General. It is our opinion, and this is Mr. Gibbons,

that Ms. Poston willingly or unwittingly was trying to retrieve data

which had been entered into an FIB data base as a result of inquiries instigated by her client which appeared to be, ‘‘real FBI

records,’’ which, of course, would then corroborate to some extent

Ms. Clow’s allegations. After Associate Attorney General Schmidt

granted Ms. Poston an appeal, she then received Richard L. Huff’s

letter indicating that indeed there was no record with the FBI or

the Department of Justice, and so forth.

And so where did you get your information? Was it—after Mr.

Schmidt permitted you to have that file or what? How did that

work?

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Ms. POSTON. I am not clear what information you mean.

Mr. HORN. This is in relation to all of the background on the two

Buddhist sects, if you will, organizations. As you can see there,

they have a pretty good idea either through agents that he, Mr.

Ogden, has contacted—or not—what you were doing at that time.

I wondered if you ever have met Mr. Gibbons, or is it strictly that

he is using his contacts to make this report?

Ms. POSTON. This is the first time that I have ever seen this report, and I have never heard of a Mr. Gibbons.

Mr. HORN. Well, I can understand that, and he is writing to Special Agent Athena Varounis, Headquarters Supervisor, Office of

Professional Responsibility. So here is a rather extensive paper,

and the question would be how accurate is it in terms of your clients?

Would that have made the FBI knowledgeable, or would it have

just said that they didn’t do anything? What do you think? Because

you said no one from law enforcement ever interviewed you about

the case.

Ms. POSTON. I am very sorry, sir. First of all, I have not read this

report, so I don’t know that I can pass on its accuracy. I am not

sure that I am clear on your question.

Mr. HORN. Well, the question is to what degree you were after

the file, and you got the file based upon your contacts with Associate Attorney General Schmidt, and then the question is when did

you learn some of these things before that file and after that file?

This is dated July 30, 1997. Now, you had already received that file

through your contacts with Mr. Schmidt.

Ms. POSTON. Yes. I mean—— Mr. HORN. July 30, 1997.

Ms. POSTON. July 11, 1995, was the letter that I received from

Mr. Huff stating that based upon the Attorney General’s openness

and FOIA, that they were going to look for the record. And then

they said that there was no record. That was the first time that

I received any knowledge.

Mr. HORN. You are part of a very prestigious law firm. Have you

ever been disciplined by your law firm for your activities in this

case?

Ms. POSTON. No, sir.

Mr. HORN. You have not?

Ms. POSTON. I have not.

Mr. HORN. Have lawyers in your firm reviewed your records pertaining to this case?

Ms. POSTON. They have.

Mr. HORN. Would you say that they cleared you, or was there a

reprimand at all?

Ms. POSTON. There was no reprimand.

Mr. HORN. No reprimand.

Have lawyers in your firm ever advised you not to answer questions about this matter because of your potential legal jeopardy?

Ms. POSTON. The advice that I have received from counsel, sir,

has been to maintain—excuse me. Excuse me.

Excuse me, please. I misunderstood my counsel. I would not be

able to divulge to the committee the advice that I have received

from my counsel.

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Mr. HORN. It is not from your counsel, it is from the lawyers in

your firm. Did they ever advise you not to answer questions about

this matter because of your potential legal jeopardy?

Mr. PALMER. To clarify, the lawyers in her firm are myself, and

I am her counsel.

Mr. HORN. Ms. Poston, isn’t it true during your interview with

the committee staff, one of the reasons that you refused to answer

questions was because of your potential criminal exposure?

Ms. POSTON. No, it is not.

Mr. HORN. This is an interview with the committee staff?

Ms. POSTON. Yes.

Mr. HORN. Do you know of any of the partners of Steel, Hector

& Davis that have brought your activities to the attention of law

enforcement?

Ms. POSTON. I have no personal knowledge of that.

Mr. HORN. Have you ever been disciplined by the Florida bar for

your activities in this case?

Ms. POSTON. No, sir.

Mr. HORN. Do you know if Steel, Hector & Davis has brought

any of your activities in this case to the attention of the Florida

bar? In other words, has your own firm ever brought any of your

activities in the case to the attention of the Florida bar?

Ms. POSTON. I don’t know.

Mr. HORN. I am going to yield 5 minutes to Mrs. ChenowethHage.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Chairman, and I would

like to yield my time to Mr. LaTourette.

Mr. LATOURETTE. I thank you very much. I thank my colleague.

Ms. Poston, if we could go to exhibit No. 9, I think you answered

some questions about that before. I want to go back to this notion— because you may remember when I was here before, I asked the

chairman to schedule a full committee meeting to talk about the

possibility of contempt of Congress, and so I want to be clear. We

went over a little bit before about how we have a difference of opinion about your communications have been published in a newsletter. You reached the conclusion there have been no waivers.

I want to ask about the multipage document which is exhibit No.

9. The reason that I ask you that, I assume again based upon your

vast experience in the law and expertise as a member of the bar,

you are aware that whoever conceals—receives, conceals or retains

the same, that is being NCIC records, with the intent to convert

it to his use or gain, knowing it to have been stolen, embezzled,

purloined or converted has committed a crime. Are you aware of

that statute?

Ms. POSTON. Yes.

Mr. LATOURETTE. Now, exhibit No. 9, which is the multipage

document, you have forwarded to your investigators an attachment

that has two pages from a fellow by the name of George Odano.

Who is George Odano?

Ms. POSTON. Mr. Odano is a representative of the client Soka

Gakkai.

Mr. LATOURETTE. OK. In the attachment to the fax—and, again,

is this a document that you sent to your investigators?

Ms. POSTON. Yes, I believe it is.

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Mr. LATOURETTE. And all three pages?

Ms. POSTON. Yes. The fax cover sheet indicates so.

Mr. LATOURETTE. And it says, ‘‘Please get the answers to as

many of these as you can and be specific.’’ I assume that what that

refers to are the questions that are contained in the two-page attachment from Mr. Odano; is that right?

Ms. POSTON. Yes.

Mr. LATOURETTE. And specifically No. 1, the first question that

you want them to get the answer to, ‘‘Is the name on the NCIC file

Nobuo Abe?’’

Ms. POSTON. Yes, I see that question.

Mr. LATOURETTE. So your instructions to your investigators in

exhibit 9 was to determine whether or not the name on the NCIC

file belonged to the fellow who is the subject of some litigation with

your client; is that right?

Ms. POSTON. All I can say, Mr. Congressman, is that the document speaks for itself.

Mr. LATOURETTE. Yes, it does. Let me tell you what I think the

document says, and that is that you were asking for information

from the NCIC data base, and I will tell you if you are aware of

the statute, that section of the U.S. Code that we were talking

about earlier, it is a felony to give out such information and to convert it to your own use. And so the question I would have is how

then—well, I guess I am soliciting your opinion as an attorney or

that of your counsel next to you. Why haven’t we waived the attorney/client privilege yet?

This document is talking about—which does speak for itself—is

talking about the distribution of confidential law enforcement information in violation of the U.S. Code. Isn’t that the way that you

read it as a lawyer?

Mr. HORN. We have two votes on the floor. Since Mr. Burton has

gone over to get his votes in and will be back soon, and we need

to take a recess so the rest of us can vote—has there been an answer to your question?

Mr. LATOURETTE. Not yet.

Ms. POSTON. Can you repeat it, please?

Mr. LATOURETTE. I can’t, but let me—do you want to stop, Mr.

Chairman? I can come back and finish.

Mr. HORN. If you would like to finish the question, go ahead. I

just wanted to note that we are going to recess.

Mr. LATOURETTE. I appreciate the courtesy.

I would like to ask it this way: I read you the part of the statute,

18 USC 641, which makes it a crime for people to conceal or retain

this information. Isn’t it an accurate reading of the facsimile that

you sent in exhibit 9 to your investigators that you were asking to

receive NCIC information which included to know whether the

name on the file belonged to Mr. Abe; whether or not the events

took place on March 19, 1963; whether or not the date of birth was

December 19, 1922? That is NCIC information that you are asking

your investigators to get, isn’t it?

Ms. POSTON. Specifically I cannot comment on this letter that the

client wrote which I forwarded on as to what the client was asking,

but I can tell you that at no time did I ever ask any of my invesVerDate 11-MAY-2000 11:38 Jul 18, 2001 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6633 C:\DOCS\73168.TXT HGOVREF1 PsN: HGOVREF1
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tigators to go and access NCIC or get any record or believe that

they ever had access to NCIC.

Mr. LATOURETTE. My time has expired. I would like to come back

to that during another round, with the courtesy of the Chair.

Mr. HORN. I thank the gentleman, and we will try to accommodate that. Right now we are going to be in recess until 2:30.

Ms. Poston, if you would stay because of the second panel, we

would appreciate it. Thank you.

Mr. BURTON. The committee will be reconvened, and as I understand it, Mr. LaTourette, the honorable former prosecutor from the

great State of Ohio, is continuing his questioning.

Mr. LATOURETTE. Thank you very much, Mr. Chairman, and Ms.

Poston, I apologize for having to leave for a minute for votes on the

floor, but I was talking to you about exhibit 9, I think, and there

was a previous exhibit. Can you just run through with us, you were

a former Assistant U.S. Attorney. What else have you done in your

practice of law?

Ms. POSTON. I believe I provided my resume to the committee,

but when I graduated law school—— Mr. BURTON. I’m sorry, could you pull that mic closer, please.

Ms. POSTON. After a very short period of time at the Dade County State Attorney’s Office, I did go to the Department of Justice as

an Assistant U.S. Attorney in Miami.

Mr. LATOURETTE. OK. And then how long did you serve there?

Ms. POSTON. About 21⁄2 years, and then I transferred to the

strike force in Cleveland, but it was not quite 5 years total with

Justice.

Mr. LATOURETTE. When were you in Cleveland?

Ms. POSTON. I’m sorry?

Mr. LATOURETTE. When were you in Cleveland?

Ms. POSTON. 1979 to about, I’m sorry, about 1977 to 1979.

Mr. LATOURETTE. OK. Going back to exhibit No. 9 again, you’ve

acknowledged in response to my previous questions that this was

a fax that you sent to Mr. Manuel and Mr. Lucas and you also acknowledged that you asked them to get answers to questions, that’s

what the document speaks for itself, we went through that. Clearly

anybody that understands the English language indicates that you

were asking them to get answers to as many of the questions as

you can. And the questions to which the cover sheet refers to are

contained on the letter that’s attached from Mr. Odano, who you’ve

identified as a representative of your client, and again, going

through the questions, the first one is the name on the NCIC, and

we are not confused about what NCIC stands for. You acknowledged that that’s the national data base that we’ve been talking

about, the subject of the hearing, that’s what that refers to?

Ms. POSTON. Yes.

Mr. LATOURETTE. No confusion about that. The question about

whether or not the name on the file relates to Mr. Abe, and then

next there’s a reference about whether or not the date of birth on

the NCIC file is December 19, 1922, which I assume is the gentleman’s birth date, and it asks you to—well, you’re asking your investigators to figure that out. Now, I was asking you before about

the fact that we have a criminal statute that makes it unlawful for

people to come into possession of this information. Is there any reaVerDate 11-MAY-2000 11:38 Jul 18, 2001 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 C:\DOCS\73168.TXT HGOVREF1 PsN: HGOVREF1
81

son that you have, any reason to believe that your investigators

would have lawfully come in possession of the NCIC file on this

gentleman?

Ms. POSTON. Well, first of all, I think I want to be certain that

my answer before we took the break, Mr. LaTourette, is clear because the—I know the Department of Justice searched the NCIC

because I made a request for that in my FOIA request for them,

and I know also that I never asked my investigators ever to obtain

any information illegally, and that would also include the NCIC.

Mr. LATOURETTE. No. I understood your answer before the break,

and that is you never asked them to illegally obtain NCIC information. What I’m asking you is do you have any reason to believe that

your investigators at this time on November 10, 1994, I guess as

Mr. Odano’s letter, had had lawful possession of the NCIC information?

Ms. POSTON. First of all, I believe, Mr. LaTourette, I don’t have

any knowledge as to whether my investigators ever at any time

had possession of any information from NCIC. Now, I do not know

what all the rules and restrictions may be with respect to when

you can or cannot release information from there. I know I did get

information from some agencies in the Department of Justice that

searched their records. Whether they searched their records in

NCIC and gave me stuff, I don’t know.

Mr. LATOURETTE. Well, again, would you acknowledge with me

based upon your experience as a former U.S. Assistant Attorney

General that 18 U.S.C. 641 does make it a crime in this country

to receive, conceal or retain NCIC material that has been embezzled, stolen, purloined or converted; we are not in confusion about

that?

Ms. POSTON. Well—are you reading from the statute?

Mr. LATOURETTE. I am.

Ms. POSTON. And it mentions NCIC in the statute?

Mr. LATOURETTE. Uh-huh. It specifically is talking about NCIC

documents.

Ms. POSTON. But does it—— Mr. LATOURETTE. Well, let me, let me indicate to you that it

is——

Mr. BURTON. I yield the gentleman my time.

Mr. LATOURETTE. Thank you, Mr. Chairman.

OK. I think the statute covers it, but it doesn’t specifically mention NCIC. Let me ask you this. Based upon your experience, do

you believe it to be a crime to be in unlawful possession of NCIC

information or distribute it, publish it?

Ms. POSTON. Well, if you’re assuming that it’s unlawful possession, the answer would have to be yes.

Mr. LATOURETTE. I’m asking what your understanding is. I know

what my understanding is. Is that your understanding? Do you

think it is against the law to have NCIC, the information and distribute it if you haven’t come into that—if you’re not using it, even

for law enforcement purposes, which is the whole theory behind the

NCIC data base?

Ms. POSTON. I’m looking at the statute now that’s been provided

to me, and if the information was obtained, where this statute

reads, unlawfully it would be a crime in my opinion, but I also

82

want to say, one thing is that I don’t understand how this committee thinks that I did something wrong or could consider it improper

that the acquisition of government property, in this case we are

speaking about information, when in the first place it didn’t exist

and in the second place if it did the government ruled that I was

entitled to it. I don’t understand what the committee thinks that

I did wrong.

Mr. LATOURETTE. Well, let me back up for just a minute because

at the time that the information—I mean, let’s sort of walk through

this step by step. The first indication is that someone from the Federal Bureau of Prisons, again your representative of your client’s

letter in paragraph six says that the information that they received

from the Federal Bureau of Prisons was much more thorough than

what was provided. So in the first instance before the Justice Department ruled on anything somebody at the Federal Bureau of

Prisons, either with your help or without your help or with your

investigator’s help or without your investigator’s help, secured arrest records and provided them to your client. I mean isn’t that the

plain—going back to the document speaks for itself, isn’t that the

plain meaning of that paragraph?

Ms. POSTON. Just a moment, please. What you’re asking me to

answer I cannot answer because of conservations with clients or

with my investigators, sir. I wish that I could answer you, but I

cannot.

Mr. LATOURETTE. And when we started, this entire line of questioning was on that claim you continue to make, and that is the

attorney-client privilege, and so maybe the best way to get about

it is a hypothetical and I would ask you this. If, if documents were

obtained from the NCIC by an employee of the Federal Bureau of

Prisons unlawfully, if that information was then put in the possession of your client and/or your investigators, if then further Mr.

Lucas or somebody else acting on your behalf conducted an NCIC

search outside the scope at which that data base is permitted to

be used and came into possession of it, and if then your client is

asking you to go double back because there’s a problem here, the

stuff that they stole from the Federal Bureau of Prisons is different

from the stuff that your investigators took from the NCIC, and

that’s the import and the meaning of this letter of November 10,

1994, I put to you that that is the commission of a crime, and if

that is in fact the commission of a crime, the attorney-client privilege doesn’t cover that instance, does it?

Ms. POSTON. With the greatest of respect, Mr. LaTourette, I am

not going to answer on a hypothetical. I’m here to try to answer

based on the facts as I know them, and second, I have no knowledge that there has been any crime committed here either by myself or by my investigators, and therefore, I see no need to have to

assert the fifth amendment.

Mr. LATOURETTE. You can assert it any time you want to. I’m not

asking you to assert it. Again, and this will be the last question

because I guess I’m getting nowhere in a hurry, going back to subparagraph one of this letter of November 10, 1994, that do you not

specifically—I mean you’re the conduit here. You’ve asked your investigators to answer questions put to you by a representative of

your client, and specifically, question No. 1 is, is the name on the

83

NCIC file Nobuo Abe. That is the question, and are you not by

transmitting this to your investigator asking for information from

the NCIC data base? Isn’t that what that asks?

Ms. POSTON. I cannot answer the question, sir.

Mr. LATOURETTE. Because of the attorney-client privilege?

Ms. POSTON. Because of the attorney-client privilege, yes.

Mr. LATOURETTE. OK. Mr. Chairman, I really don’t have any

more questions.

Mr. BURTON. I think that concludes any questioning we have of

this panel, and so we thank you for being with us. The next panel

will be Ms. Poston again.

Ms. POSTON. Excuse me, sir, Mr. Chairman. There is an answer

that I gave to you with respect to exhibit 19, and I would like to

have the opportunity to clarify my response.

Mr. BURTON. Let me get exhibit 19 before me real quickly here

so we can see what we’re talking about. OK. I have it. Go ahead.

Ms. POSTON. Yes, sir. After having an opportunity, Mr. Chairman, to refresh my recollection regarding the event that happened

over 6 years ago and using the document that the committee provided me this morning, I believe that I inadvertently misinterpreted your question, Chairman Burton, and overstated my answer. I believe that I said words to the effect that I did not know

anything about a source at the Bureau of Prisons when in fact the

answer should be and I correct at this time, Chairman Burton, my

answer would be that I do not know any source at the Bureau of

Prisons.

Mr. LATOURETTE. Mr. Chairman, could I ask a question on that

clarification?

Mr. BURTON. Yes, you can.

Mr. LATOURETTE. I appreciate it, and this actually goes to Mr.

Manuel and Ms. Poston, and that is, Mr. Manuel, if you go to exhibit No. 6 for just a second, and that is, that’s a fax that’s to the

attention of Rich and I assume Rich is Mr. Lucas; is that right?

[Exhibit 6 follows:]

84

85

Mr. MANUEL. Yes, Rich would be Rich.

Mr. LATOURETTE. That would be a message to Mr. Lucas. The

message part says, Rebekah Poston left a message on the machine

last night. She said the date is December 19, 1922, which we know

from my previous discussion with Ms. Poston was the birth date of

the gentleman that we are talking about. There was never any

time served. I have no idea why that info is there. Home phone,

blah, blah, blah. Do you still want me to call the Bureau of Prisons.

Did you send that document?

Mr. MANUEL. No, I didn’t. It was sent by a person who worked

in my office at the time.

Mr. LATOURETTE. Do you have any knowledge—— Mr. MANUEL. If you see the sender down there, the name is Lisa.

Mr. LATOURETTE. Do you have any knowledge of this document?

Mr. MANUEL. I don’t recall seeing it.

Mr. LATOURETTE. Do you have any idea why there would be a

reference to the Bureau of Prisons?

Mr. MANUEL. No, not really, not in this document.

Mr. LATOURETTE. And specifically to the question or the clarification that Ms. Poston was just giving on exhibit 19, there’s a statement in a memo from Mr. Lucas on the letterhead of your company

about a source at the Bureau of Prisons. Do you have any knowledge about any source at the Bureau of Prisons?

Mr. MANUEL. What are you referring to?

Mr. LATOURETTE. Exhibit 19. That’s the clarification Ms. Poston

was just giving to the chairman.

Mr. MANUEL. The only knowledge I have of a source, so-called

source at the Federal Bureau of Prisons, is what I was told by Mr.

Lucas. Mr. Lucas had advised me that there had been some information obtained from a source at the Federal Bureau of Prisons.

Now that came from Lucas. Did not come from Ms. Poston to me.

Mr. LATOURETTE. But he represented to you that that information came from Ms. Poston, did he not?

Mr. MANUEL. I don’t think, I don’t think that he made a representation one way or another. He may have but I don’t recall

that.

Mr. LATOURETTE. Well, that exhibit 19 specifically, did you receive this memo? I mean it’s addressed to you from Mr. Lucas.

Mr. MANUEL. I probably did, but I don’t have any specific recollection of receiving it right now. I’m not denying that I didn’t.

Mr. LATOURETTE. But again we have learned the lesson from Ms.

Poston the document speaks for itself, and at least he appears to

be in the second paragraph, she stated a handwritten record was

being kept by their source at the Federal Bureau of Prisons, and

that’s what it said. Not that you can vouch for the truthfulness, but

at least that’s what Mr. Lucas was writing to you; is that correct?

Mr. MANUEL. He’s writing this to me at the same time that he’s

dealing with the other side in this to sell information to them and

go to work for them. So at this stage I have to tell you I’m very

skeptical of whatever Mr. Lucas says or what he wrote even at the

time.

Mr. LATOURETTE. But again, and I appreciate the chairman’s indulgence, going back to the exhibit that I was just talking to you

about, Ms. Poston, and that appears to—gotten a letter from Mr.,

86

what was his name George Odano, Mr. Odano, that also makes reference to a source at the Federal Bureau of Prisons in subparagraph six, doesn’t it, Ms. Poston? Was it six? I’m sorry.

Ms. POSTON. Yes, yes, I think it’s clear.

Mr. LATOURETTE. So—and so you—in your clarification to the

chairman are you saying that you are not aware of any source at

the Federal Bureau of Prisons providing information to you, your

investigators or your client when your client in a document that

you have been willing to discuss with me specifically indicates to

you that I’ve already informed you the information that our source

at the Federal Bureau of Prisons gave us was much more detailed.

Are you still saying you’re not aware of any source at the Federal

Bureau of Prisons?

Ms. POSTON. No, that’s not what I was saying.

Mr. LATOURETTE. You said you didn’t have a source.

Ms. POSTON. No, that’s not what I said.

Mr. LATOURETTE. I’m sorry, what did you tell the chairman?

Ms. POSTON. Mr. Chairman, I had said earlier to you that I did

not know anything about a source at—the source at the Bureau of

Prisons and then I corrected that to say that I did not know a

source at the Bureau of Prisons.

Mr. BURTON. Let’s delve into that just a little bit. Did you know

anything about a source at the Federal Bureau of Prisons?

Ms. POSTON. I can’t answer because of the privilege. I’m sorry,

I wish I could answer you, sir. I have been directed by my client

and I believe I have a legal basis for that in good faith.

Mr. BURTON. Do you have any more questions, Mr. LaTourette?

Mr. LATOURETTE. No.

Mr. BURTON. I thank this panel for being with us and I once

again apologize for all the time it took. Mr. Lucas, do you have a

final comment?

Mr. LUCAS. Mr. Chairman, in your subpoena to be here today,

you requested additional documents be produced today. With the

understanding that the instruction the chairman gave witnesses to

answer questions applies to documents, I have a set of documents

that are responsive.

Mr. BURTON. Well, thank you very much. Would somebody go

down and get those documents? We’ll take a look at those. Thank

you very much. Thank you very much, and now the next panel is

Ms. Poston, we appreciate you remaining at the table, John

Schmidt, John Hogan and Richard Huff. Mr. Schmidt, Mr. Hogan

and Mr. Huff, would you please stand and raise your right hands.

[Witnesses sworn.]

Mr. BURTON. Do any of you have an opening statement you

would like to make?

STATEMENTS OF JOHN R. SCHMIDT, FORMER ASSOCIATE ATTORNEY GENERAL; REBEKAH POSTON, PARTNER, STEEL

HECTOR & DAVIS, MIAMI; JOHN HOGAN, FORMER CHIEF OF

STAFF TO ATTORNEY GENERAL RENO; AND RICHARD L.

HUFF, CO-DIRECTOR, OFFICE OF INFORMATION AND PRIVACY, JUSTICE DEPARTMENT

Mr. SCHMIDT. Mr. Chairman, I’d like to make just a very brief

statement and describe the circumstances of this matter as I recall

87

them, because they’re not entirely consistent with the statement

that you read earlier, and I will be very brief.

My recollection of this matter is that I met with Ms. Poston, who

complained about a decision that had been made denying a freedom of information request that she had submitted on behalf of her

clients. She told me she thought it was wrong and contrary to law

and she intended to pursue her client’s interests by litigation if

necessary.

I then met with Dick Huff, who was then, still is now, the CoDirector of the Office of Information and Inquiry, which was a part

of the Justice Department that reported to me, and I asked him

about it and he described the case. He described the decision that

he had made and why he had made it, and at some point in the

course of that discussion, I think I asked him or somehow the issue

came up, did we know whether we even had any records of a kind

that were being requested, and he indicated that we did not, and

I said why don’t we find out and if we find out we don’t have any

records, then we could disclose that and that would be harmless

and we would put this entire matter to rest without the need for

any further argument or litigation.

He indicated a concern that we not change our general policy of

not confirming or denying the existence of records of this kind because we didn’t want to get into a situation where our failure to

deny could be construed as a confirmation, and I said I thought

that was the right policy but it didn’t seem to me it was going to

undermine that if we made an exception in a case like this one, disclose that we didn’t have any records and avoided the need to continue and argue and litigate over something that didn’t exist.

He then went off and went through the process of finding out

whether in fact we had any records and at some point came back

to me, I don’t remember whether we met again or he called me, indicated that we had no records and I said I think we ought to go

forward and disclose that. He then wrote the letter that you’ve

seen. I don’t remember whether he showed me the draft of the letter or not, but he then sent it. As far as I was concerned that was

the end of it and frankly was the last time I ever thought about

it until I got a call from your counsel about 2 weeks ago.

Mr. BURTON. I want to get opening statements from everybody

but I’d like to just give you a question that you can answer after

they make their opening statements, and that is, was there ever

any of this information, because it has been stated in documents

that we have here, that it was purged, which means removed? So

you could just wait and think about that and we’ll get back to you.

Mr. SCHMIDT. I’ll answer right now. I have no knowledge of

whether there was any information. All I know is that when Mr.

Huff went through the process and came back, he said we have

found we had no records or information of the kind that was being

requested and that was therefore—it seemed to me a totally harmless disclosure that we could make and put this whole matter to

rest.

Mr. BURTON. That was a little different than normal policy,

though, was it not, to disclose that?

Mr. SCHMIDT. As I say, we had a general policy of neither confirming nor denying and I think that is important, but making an

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exception in a case like this doesn’t undermine that general policy.

We still have that as a general policy. It’s just like the policy we

have of not confirming or denying the existence of investigations.

That’s our general policy, but there are a lot of exceptions where

we make an exception for some reason and it doesn’t allow anybody

to therefore assume that because we haven’t denied we are conducting an investigation.

Mr. BURTON. We’ll get back to you in just a minute. Would you

like to make an opening comment?

Mr. HOGAN. Briefly, sir, if I could. Mr. Chairman, my name is

John Hogan. I served as the Attorney General’s Chief of Staff, and

I also worked for her when she was the State Attorney in Miami.

I was a prosecutor there for about 15 years, serving most of that

time as her chief assistant in Miami as well.

I met Ms. Poston through her sister, who was a secretary in the

office, and when Ms. Poston eventually called me when I was here

in Washington and started talking about a FOIA request, my response was very simple. I explained to her that I did not get involved in FOIA requests, that the Attorney General’s Office does

not get involved in FOIA requests. I simply referred her to the career people within the Department who handle those matters.

I think she naively thought that because of where I was sitting

I would have the ability to influence those decisions. I didn’t. I simply sent her to Mr. Huff’s office to handle those matters. Periodically she would continue to call me and at first I simply told my

secretary take a message and I did not return the calls. After a

while, I told my secretary not to even bother me when Ms. Poston

called because I had done what I was going to do and that was

refer her to the career people who handle these decisions.

Eventually I became aware that she was going to take an appeal

of Mr. Huff’s decision. I had never spoken to Mr. Huff about the

decision and no way participated in the decision, in no way attempted to influence his decision. I simply let—I did not speak to

Mr. Schmidt either about it. I simply let Mr. Schmidt’s people

know there was a decision coming their way. I wanted to make

them absolutely clear that I had not taken any position on the merits, that I did not think it was appropriate for me to be involved

in the matter and I simply passed these matters off to the people

who were the actual decisionmakers, who were appropriate decisionmakers. I played no role in the decision, the Attorney General

played no role in the decision and no one else in the Attorney General’s Office played any role in the decision.

I just wanted to make that clear.

Mr. BURTON. Mr. Huff.

Mr. HUFF. I have no statement.

Mr. BURTON. Very good. We will start off I think, Mr.

LaTourette, I know you have time constraints. Did you have any

questions you would like to ask at the beginning of this panel?

Mr. LATOURETTE. No.

Mr. BURTON. OK. We’ll start with the chief counsel then and you

have 30 minutes.

Mr. WILSON. Good afternoon, all, and hopefully we’ll get through

this fairly quickly.

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Mr. Schmidt, yesterday you made a statement to a newspaper

and you said, I made exceptions in particular cases that did not undermine the policy. At least that’s what you were quoted to have

said, and you have just explained to us what the policy was, and

until this statement was made to the Associated Press yesterday,

we weren’t aware that there were other cases. What were the other

cases?

Mr. SCHMIDT. I don’t recall saying to the reporter I made exceptions. I told him what I think I just told you. He called me, I didn’t

make a statement. But I did tell him what I just told you that in

this case it seemed to me it wasn’t going to undermine our general

policy and it would serve the purpose of putting to rest a controversy and saving everybody, including the taxpayers, the expense of having to litigate over it, but there was no other case that

I remember where I made an exception to that policy.

Mr. WILSON. So this was indeed the only case that went to the

policy you described earlier?

Mr. SCHMIDT. The only case where this issue was ever raised

with me, but it was also the only case where I ever made that exception.

Mr. WILSON. Did you have any involvement in any other FOIA

cases while you were Associate Attorney General?

Mr. SCHMIDT. Yes, occasionally if someone called and complained, although it was rare, it was a part of the Justice Department that ran itself, but there were occasional cases where people

would call and complain. You’re asking for examples?

Mr. WILSON. I’m actually asking very specifically. Were there

any other cases involving the policy to neither to confirm nor deny

the existence of—— Mr. SCHMIDT. No, I don’t recall any other case where that issue

was raised with me.

Mr. WILSON. Mr. Hogan, just before I get into this, you mentioned that you did at one point let staff know in the Associate Attorney General’s office about this issue. Who did you contact?

Mr. HOGAN. I now know, I didn’t know this when we spoke a few

weeks ago when my memory was so faded because at that point I

had not had a chance to look at documents, what I did was called

when I learned that there was a potential appeal—Nancy McFadden was Mr. Schmidt’s top aid, and I let her know that there was

an issue coming. I wanted to look into whether or not they actually

handled appeals. The question you just asked Mr. Schmidt, at the

time I did not know the answer to and whether or not they would

take an appeal from Mr. Huff’s office and simply let her know

that—to make sure there’s no misunderstanding, that I had no position on the issue and had simply played the traffic cop sending

her—sending Ms. Poston in her direction because I didn’t want

there to be any misunderstanding as to what my role was.

Mr. WILSON. Did you ask anybody in the Associate Attorney General’s office to meet with Ms. Poston?

Mr. HOGAN. No. I simply said that Ms. Poston wanted to appeal.

I didn’t know how—what Mr. Huff’s power was vis-a-vis Mr.

Schmidt, to be completely honest, and I said look into the issue of

whether or not this is an appeal that you would want to take, I

don’t know what your procedures are. I simply knew I wasn’t going

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to be involved in it and I wanted to let her know that there was

no misunderstanding that I had no position.

Mr. WILSON. Ms. Poston, prior to your actually lodging the FOIA

request did you have an expectation that the Justice Department

would grant your request?

Ms. POSTON. I thought at the beginning it would be difficult because I was making a request for a record for someone that I did

not represent, and in all my past FOIA experiences I had represented the party whose record I was seeking, but then when I got

the memorandum from Wilmer Cutler that the Privacy Act did not

apply to foreign nationals then I felt that I had a good legal argument.

Mr. WILSON. Mr. Hogan, you mentioned earlier that there was

the prospect and—or Mr. Schmidt, you also mentioned it, that

there was the prospect of litigation in this case. Mr. Schmidt,

would the litigation have been successful if Steel Hector & Davis

had litigated to obtain this—— Mr. SCHMIDT. I don’t think so based upon what Mr. Huff had told

me. I think he thought we had a very defensible position. My view,

as I indicated before, was there was no point in litigating over

something that didn’t exist so we could avoid the issue, but I think

that I didn’t really get into the issue beyond talking to Mr. Huff.

But I think he was comfortable that we had a defensible basis for

refusing to disclose any information here.

Mr. WILSON. Mr. Huff, would a plaintiff have been able to prevail

asking for the record that Ms. Poston asked for in this case.

Mr. HUFF. I think it would be very unlikely.

Mr. WILSON. Very unlikely.

Mr. HUFF. Yes.

Mr. WILSON. If you could, Mr. Huff, just—we’ll start at the beginning of this, if you could explain very briefly because you want to

get out of here and we don’t have much time, what is the Justice

Department policy regarding the confirmation or denial of criminal

records about a third person? We understand that if you go and

ask for a record that pertains to yourself you have access to that,

but if I were to go and ask for somebody else’s criminal record,

what is the Justice Department’s policy?

Mr. HUFF. Generally, we would refuse to confirm or deny whether or not such records existed. There are a few exceptions to that,

such as if the subject of the request is deceased or if the subject

of the request has consented to it or if the Department of Justice

has officially made it public. For instance, do you have any records

on John Hinckley, Jr., yes, we do.

Mr. WILSON. Now, is this policy in place for noncitizens as well

as U.S. citizens?

Mr. HUFF. That has been our general practice, yes. There are exceptions where we have not followed it for noncitizens.

Mr. WILSON. Now why is this policy in place?

Mr. HUFF. Generally, it is to protect the privacy of an individual

who does have a law enforcement record about him or her, where

that fact has not previously been officially confirmed by the Department or one of the other circumstances that I mentioned.

Mr. WILSON. Now, my understanding from having spoken with

you before is that if there was a situation where people who came

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and asked for records pertaining to third parties and there were no

records and the Department confirmed that there was no record, if

the policy was consistently applied, then when there was a record

the Department would not be able to reply that there was no

record so it would be tantamount to confirming there was a record.

Is that the basic—— Mr. HUFF. If we did that in all cases, certainly that would be so.

Mr. WILSON. Now, I mean we’ve heard today, Ms. Poston, that,

briefly, but is it true that your initial FOIA requests for Mr. Abe’s

records were rejected?

Ms. POSTON. No.

Mr. WILSON. At the Department of Justice with FOIA request at

Main Justice?

Ms. POSTON. Well, when you say Main Justice, you don’t include

Immigration and you don’t include Bureau of Prisons?

Mr. WILSON. I’m not including INS.

Ms. POSTON. Then the answer is yes.

Mr. WILSON. Now, having read some of the papers, Mr. Huff, Ms.

Poston argued that her FOIA request should be granted because of

the public interest in Mr. Abe’s arrest record and because the Privacy Act did not apply to a foreign national. Why did you reject her

appeal? Did those arguments carry any water with you?

Mr. HUFF. Well, she was certainly right with regard to the Privacy Act, but as a general proposition aliens have privacy interests

as well that are protectable under the Freedom of Information Act.

That information can be protected. And certainly under the FOIA

we aren’t required to assert exemptions. In fact, that’s the whole

idea behind discretionary disclosure.

Mr. WILSON. I’ll yield for a moment to the chairman of the committee.

Mr. BURTON. Something’s been kind of bothering me, Mr. Hogan.

You’re the Chief of Staff for the Attorney General.

Mr. HOGAN. Yes, I was.

Mr. BURTON. You were. Why would you even call Mr. Schmidt

to tell him that you weren’t taking any position, but that he might

be contacted by Ms. Poston?

Mr. HOGAN. I did not contact Mr. Schmidt. I never spoke to Mr.

Schmidt. I called his staff.

Mr. BURTON. Why would you do that?

Mr. HOGAN. Simply to let them know—I wanted to make sure

they understood that if my name was used in any way that it

wasn’t—that I had taken no position on the case.

Mr. BURTON. Wouldn’t they have, if they got a call from Ms.

Poston or anybody and said you know, Hogan said that you ought

to help us or something, wouldn’t they have called you to confirm

that?

Mr. HOGAN. I would assume so.

Mr. BURTON. Then why would you have to call in the first place?

Mr. HOGAN. Out of an abundance of caution, sir, so there’d be absolutely no misunderstanding.

Mr. BURTON. When the Chief of Staff of the Attorney General of

the United States calls somebody who’s a subordinate in the Justice Department or one of their staff people, the tone of voice, voice

inflection, no matter what it is, can convey all kinds of things and

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just by virtue of the fact that you called it could have meant you

know she’s going to call and, you know, do what she can for her.

Mr. HOGAN. Just the opposite, sir.

Mr. BURTON. Did you make calls like that in the past?

Mr. HOGAN. Yes, sir.

Mr. BURTON. For other people where they called you and said

we’d like something and you called and said you may be getting a

call?

Mr. HOGAN. If there’s ever any misunderstanding as to what I

have done I would attempt to clarify it. Ms. McFadden, who was

Mr. Schmidt’s main assistant, was a very seasoned lawyer, a very

competent woman. All I wanted to make sure that she understood

was that even as to whether or not they heard this I had no opinion.

Mr. BURTON. But this has happened before, you’ve called like

that before on other issues?

Mr. HOGAN. If I was concerned that someone would misunderstand what the role—what my role had been in something, yes, I

would clarify it. Just for the reasons you said, sir.

Mr. BURTON. But you would do it without them initiating a call

to you?

Mr. HOGAN. In some cases yes.

Mr. BURTON. OK thank, you.

Mr. WILSON. Just following up on that, Mr. Hogan, have you ever

made a call on a Freedom of Information Act request before, a call

to anybody else in the Department of Justice about somebody else’s

Freedom of Information Act request.

Mr. HOGAN. The only other calls I had made, Mr. Huff’s staff

would routinely consult me on FOIA issues. There were certain

things that statutorily if some document was a former Attorney

General Office document and there was a FOIA issue with it, they

would have to go to our office just like they would go to a component and occasionally Mr. Huff’s deputy would call me and I would

call her back and it dealt with FOIA issues. So yes, I have made

phone calls on a FOIA issue before. I relied very heavily on Mr.

Huff and his staff as to the law because I don’t perceive myself as

an expert in that area, but yes, I have made phone calls on FOIA

issues.

Mr. WILSON. What I’m trying to get at here, not FOIA requests

for information from the Office of the Attorney General or pertaining to yourself or your records, the Attorney General’s records, but

on a matter that goes to a Freedom of Information Act request

about a third party that’s not in the Department of Justice.

Mr. HOGAN. To be completely honest, until I sat here this morning I was never really clear that was even a third party issue. I

knew it was a FOIA request. I sent it to the FOIA people. I never

focused on what the issue was. So any time I would get a phone

call on FOIA, I simply sent it to the career lawyers who handled

the FOIA issues. I never got involved in the substance of them.

I guess what I’m saying is, I don’t know the answer to your question because I never really focused on what the issues were and

your question just had a specific issue contained in it and I don’t

know. If I had a FOIA question from someone outside the Department, I sent it to Mr. Huff’s staff. That was whether it was a situaVerDate 11-MAY-2000 11:38 Jul 18, 2001 Jkt 000000 PO 00000 Frm 00096 Fmt 6633 Sfmt 6633 C:\DOCS\73168.TXT HGOVREF1 PsN: HGOVREF1
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tion where like Ms. Poston called me, it was whether I picked up

the phone and some citizen from somewhere in the United States

had a question about FOIA and what went wrong, I sent them all

to Mr. Huff’s office, and I simply—they were the career people who

handled those matters. That’s where I would send anyone who had

a FOIA issue.

Mr. WILSON. Right. And I understand your answer as far as a

basic FOIA request, but I’m trying to pare away and determine

whether you, and I’ll go to sort of the bottom line of the concern

here, is that you’re the Chief of Staff to the Attorney General of

the United States, which is not the first place a FOIA request is

lodged. It requires getting through certain traps to get to you, and

whereas I can understand questions coming to you that pertain to

FOIA requests that go to documents that are important to the Department of Justice, your documents, the Attorney General’s documents, it does seem a little unusual for you to take any phone calls

at all about a Freedom of Information Act request, about something

else that’s outside the Department, and I didn’t get a firm sense

of the answer on that.

Mr. HOGAN. The reason I took the call—when I get a message

Rebekah Poston is on the phone, I knew who she was. She was an

acquaintance, definition of friend is a nebulous one, but I knew

who she was. I took the call. She began explaining she had a problem with FOIA. I said, oh, FOIA, needs to go to a certain office

within the Department. I didn’t—I told her—she asked me questions like, as I recall, do you know Tom Kelly, who’s a lawyer in

the FBI. I said, yeah, I know him, but if you have a question with

Main Justice and there’s a FOIA issue, it goes to Mr. Huff’s office.

I simply did not get involved in it. I did not go into the substance.

She tried to make her case about the administration policy of openness and the Attorney General’s policy of openness, and my response was I don’t get involved in FOIA issues, you need to talk

to the career people who handle those issues, and I just sent her

on her way.

Now, when it later came to an appeal that was the first time

that I know of an appeal coming from Mr. Huff’s office. So to some

extent there is a uniqueness here. I don’t remember ever getting

a call about that before, but again I would simply pass on the information.

Mr. WILSON. OK. Just to clarify one thing, you mentioned that,

not precisely in these words, but the definition of friend is a nebulous term, and when we called you we didn’t get a very good sense

of any connection or past relationship between yourself and Ms.

Poston. Is it true that when Hurricane Andrew came through

Miami you invited Ms. Poston and her friend to come—and her sister to come live in your house?

Mr. HOGAN. Let me explain. Thank you very much for that opportunity. There’s so many things that are just not clear.

Her sister was a secretary in the State Attorney’s Office, and she

was in charge of all homicide victims and just did a wonderful job.

She was a single mother who just really was a very, very impressive person. Although she was never my secretary, she was someone who I’ve always admired.

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I knew that she lived on Miami Beach. When Hurricane Andrew

was approaching Miami, I called her and said, look, they’re saying

Miami Beach needs to be evacuated, Bobby. If you need a place to

stay, I live inland. You’re more than welcome to come to my house.

And she said, well, my sister also lives on the shore. Could she

come, too?

And I did not say, no, she has to stay out in the storm. I said,

yes, she can come, too.

My contact with Ms. Poston had always been through her sister.

Her sister’s office desk was near my office. I would come out occasionally, they’d be going to lunch together. She would introduce me.

I’d say, hi, Rebekah, how are you? That was really the sum total

of my contact with Ms. Poston before this happened.

So I did say to her sister that Ms. Poston could come to my house

in the hurricane. The great irony was they didn’t come, and my

house was destroyed, and her house was fine.

Mr. WILSON. When this FOIA matter was at the Department of

Justice, it is our understanding that it had been resolved to the

point where there was no possibility of appeal or at least the final

appellate step had been taken within the Department of Justice.

Was that your—do you recall whether you had an understanding

of that at the time?

Mr. HOGAN. I’m sorry, could you repeat that, sir?

Mr. WILSON. That when this FOIA request was in the Department of Justice, it had gone to Mr. Huff and he had rejected—there

was appeal to him, and he had rejected the appeal, and the matter

was effectively closed within the FOIA office. Is that your understanding of what had happened?

Mr. HOGAN. I knew that—I had a sense that—and, again, mainly

from messages, and I’m not even sure of the information—that

eventually he ruled against Ms. Poston’s position. I did not know

whether that was final or not, and that was one of the questions

that I posed to Ms. McFadden, that she should look into whether

or not there was a right of appeal for Mr. Huff.

Mr. WILSON. If I could just put up exhibit 30 for a moment on

the screen. This is a letter dated April 25, 1995. It’s a letter to Ms.

Poston from Mr. Huff, and there are four things that I wanted to

pull out of this letter.

In the first paragraph, it says that I note that you have not furnished a notarized authorization for Mr. Abe.

Second point, in the second paragraph, I find the Supreme

Court’s hold to be controlling in this case.

And then further in that paragraph, it says, lacking an individual’s consent, proof of death, official acknowledgment of an investigation or an overriding public interest, even to acknowledge the

existence of law enforcement records pertaining to an individual

could reasonably be expected to constitute an unwarranted invasion of personal privacy.

And then at the end of the first page and going on to the second

page, it says, accordingly, this office is unable to assist you in this

matter at this time, and I am closing these administrative appeals

in this office.

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I mean, Mr. Huff, when we first read this it seems like a fairly

unambiguous response to the FOIA request. In your opinion, was

this decision a close call?

[Exhibit 30 follows:]

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97

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Mr. HUFF. No.

Mr. WILSON. If one were to argue that based on—well, let me ask

this question this way. When the decision was made by Mr.

Schmidt to provide Ms. Poston the information that she was requesting, did that constitute a change of policy at the Department

of Justice?

Mr. HUFF. I don’t think it was a change of policy. I think it was

an exception in this case because of the circumstances in this case

where Mr. Schmidt said he had looked at the policy, Attorney General Reno’s disclosure policy.

Mr. WILSON. What were the circumstances that made this case

worthy of a change of direction?

Mr. HUFF. He mentioned during our conversation the risk of litigation and the time that litigation would take, but that was—— Mr. WILSON. Is that—Mr. Schmidt, is that a fair characterization, that it was a concern about litigation that led you to make

the decision you made?

Mr. SCHMIDT. Well, that was certainly a factor. Again, I wouldn’t

accept the characterization that it was a change in policy. I think

Mr. Huff has it exactly right. There was an exception to the policy

in a circumstance where we had discovered we didn’t have any

records. I mean, that is the key element here.

So we were not disclosing any records. There was no argument

that we were depriving anybody of their privacy rights, and we had

the ability to do something totally harmless that thereby put to

rest the matter and avoided the need for any further controversy

about it. And that seemed to me then, and it still seems to me, the

sensible thing to do in those circumstances.

Mr. BURTON. Let me just interrupt here. It is an exception to the

accepted policy. You don’t tell people when they ask about criminal

records for the FOIA request, whether you have them or don’t have

them, you don’t tell them anything.

Mr. SCHMIDT. That’s correct. You have the general policy of neither confirming nor denying.

Mr. BURTON. And so why the exception? I guess it’s lost—— Mr. SCHMIDT. Because we had found ourselves here in a situation where we were confronted with not just the potential but I

think the likelihood of having to litigate over this matter. We had

discovered that we, in fact, had no records. By disclosing the fact

we had no records we could completely put an end to the matter

and avoid spending anybody’s effort or time to litigate.

Mr. BURTON. But let’s say that you have 100 cases like this

where people threaten with litigation.

Mr. SCHMIDT. But we didn’t. I would agree with you, if you had

100 or 1,000 cases like this, you might have to come to a different

result. But we had one case we could completely put to rest by

making a completely harmless and lawful disclosure of the fact

that we had no records. So it seemed to me, for me, frankly, in

terms of the overall interest of the Department, easy to conclude

that it was a sensible conclusion not to unnecessarily litigate over

something that didn’t exist.

Mr. BURTON. How do you account for the fact—and maybe you

just have to speculate on this. How do you account for the fact that

the investigator—the private investigator was looking into this,

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Mr.—what was the gentleman’s name? Mr. Manuel said that the

records had been purged.

Mr. SCHMIDT. All I know about that is what I learned from having listened to the hearing this morning. I know nothing about any

of that. I don’t know what it means. I don’t know how it happened,

if it happened, and—you know, I know nothing about any of that.

Mr. BURTON. I understand, but you can see why that raises a

question with us.

Mr. SCHMIDT. I can see how your definition of purged sounded

more like mine than the one you were getting from that particular

witness. But where that leaves you in terms of——

Mr. BURTON. But the point is this. We see these document s, and

they raise all kinds of questions, and it says it’s been purged, and

then we find that you have made an exception to a rule that’s been

around or a policy that’s been around for a long, long time because

you say that you’re concerned about possible litigation. And it

just——

Mr. SCHMIDT. It seems to me you’re connecting apples to oranges

in a way that doesn’t, in fact, connect. My decision had nothing to

do with whether anything had or hadn’t been purged. Because none

of us, I don’t think Mr. Huff or anybody else, knew anything about

any of that. All we were deciding was what to do in a situation

where we had found out we didn’t have any records and should we

go on arguing or should we put the matter to rest by disclosing

that fact.

Mr. BURTON. If you have a case like this in the future, would you

do the same thing?

Mr. SCHMIDT. I’m no longer there, but if I had this case under

these circumstances in the future, yes, I would. It seemed to me

right then. It still seems to me right.

Mr. WILSON. Just one of the concerns that brings us to this matter and this panel here is to try and determine what the policy is

to the extent it can be determined. And it sounds to me—and you

can help me with this, Mr. Schmidt. It sounds to me like the clearest articulation of the status quo now is that if somebody wants

criminal records about a third party and they threaten litigation

and there aren’t records, the Department of Justice will provide

them an answer. Is that a fair articulation of the policy?

Mr. SCHMIDT. No. I think that the policy remains that, as a general policy, we don’t confirm or deny the existence of records, and

I would say that if you want to state as a general policy that there

are occasional exceptions in circumstances where the disclosure of

the nonexistence of record is harmless and allows us to avoid what

otherwise appears to be an imminent threat of significant litigation.

Mr. WILSON. I understand what you say, but your answer is

somewhat—it doesn’t follow. If I go to the Department of Justice

tomorrow and I work through the process and I get to the final decisionmaker and I’m rejected and I get a bigger—just a bigger law

firm than Steel Hector and Davis or any other sort of large, wellthought-of law firm and I say, look, you know, the Privacy Act

doesn’t apply, I want this record, then how could you distinguish

my request from Ms. Poston’s request?

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Mr. SCHMIDT. Well, I would distinguish it. I don’t think this was

a case where someone was coming in and simply litigating as part

of a strategy to undermine the general Justice Department policy

of neither confirming or denying the existence of records. This was

litigation that was clearly substantial, although I think Mr. Huff,

based on everything I know, is correct. We would have won it, but

there were real issues here.

Mr. WILSON. They wanted the record.

Mr. SCHMIDT. No, no. But the extent to which the aliens under

the circumstances had or hadn’t a right to privacy and under what

circumstances therefore someone asserting a FOIA request could

override what at least Ms. Poston and her clients would say was

a nonexistent right, and this was real litigation—I don’t think that

it is fair to suggest that we are somehow creating a scenario where

everyone would be free to come in and by the mere threat of litigation undermine the long-standing policy, and if that began to happen, I would abandon the policy of making exceptions, but until it

happened, I would see no reason to expend taxpayer money and the

resources of the Justice Department to litigate unnecessarily over

something that doesn’t exist.

Mr. BURTON. Mr. Schmidt, if you didn’t know all of the facts of

this particular case, how would you know whether or not divulging

that you had no information or some information in the file would

affect the case?

Mr. SCHMIDT. I have no idea that it would affect the case. All I

know is because we had no records, there was one whose privacy

rights were going to be violated. We didn’t make the decision until

we found out that we had no records. I didn’t know whether it was

going to be positive or negative for this case. In terms of the interest the FOIA law and the privacy law was protecting, it was harmless because, in fact, there were no records being disclosed, and

therefore we were not depriving anybody of their privacy rights.

Mr. WILSON. Just to change course for a minute, does anybody

on this panel know why the Attorney General recused herself in

this specific case?

Mr. HOGAN. I do. I have had a chance to look at records since

we spoke.

I spoke—although I normally do not take Ms. Poston’s calls, occasionally I would pick up the phone when my secretary was busy,

and occasionally I would speak to her. I had a conversation with

her at one point, and she clearly was frustrated with the fact that

her position was not gaining momentum within the Department,

and she mentioned to me that she was handling the matter with

a man by the name of John Edward Smith. I knew him to be a

friend of the Attorney General. Again, I have worked with the Attorney General since 1979 and knew her before that. He had been

at Steel, Hector & Davis when the Attorney General was there, as

opposed to Ms. Poston, who joined the firm after Ms. Reno left. He

was someone—when she was nominated to be Attorney General, he

took a leave of absence from the firm and actually came here to

Washington to help her prepare for her confirmation hearings. He

came up here and helped her prepare for those hearings.

So when Ms. Poston mentioned John Edward Smith’s name to

me, I became concerned. I went to the Attorney General and said,

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there is this FOIA matter that Rebekah Poston had called me on,

and I sent it off to the career people. And the Attorney General just

said, I am recusing myself from the matter. Make sure that nothing else comes to me.

Although Ms. Poston I would not characterize as a friend or social acquaintance of the Attorney General, Mr. Smith was, and that

was my notice that he was more involved, and so I brought it to

her attention.

Mr. WILSON. This is information which has come to your attention?

Mr. HOGAN. Yes.

Mr. WILSON. Ms. Poston, we know that you came up and had a

meeting first with the Attorney General, and you told us that you

did not discuss the Abe matter with the Attorney General, and you

ended up meeting after that with Mr. Schmidt, and Mr. John Edward Smith came with you. And one of the questions we put to you

was we have billing records from your firm, and Mr. Smith did not

charge any time to this matter. There are lots of lawyers here, and

presumably, unfortunately, there are paying clients, and they bill

somebody. It is very, very rare for a lawyer not to record his or her

time, particularly when there is a client who will pay the bill. Have

you been able to determine why Mr. Smith did not record any of

his time in this matter?

Ms. POSTON. I have no personal knowledge as to why he did not.

Mr. Smith was—I don’t know how—John was in a retired status

with the firm. He was a government relations lawyer. I asked him

if he would come with me because I have never met anybody this

high up in the Department before, and he participated in the meeting with us and Mr. Bremer and Mr. Schmidt. But why he did not

charge his time, I don’t know.

Mr. WILSON. There were associates in your law firm who worked

on this matter, and they similarly did not bill any of their time.

That is another peculiar—we have looked at the billing records,

and your name is there, and theirs is not. It seems like Mr. Smith,

you have explained him. Now, the associates, who certainly

through benevolence don’t write off their time in a matter like this,

didn’t bill their time. That is another thing that we are puzzled

with. Is there an explanation for that?

Ms. POSTON. Mr. Wilson, do you have the subpoena in front of

you? I want to be certain. I want to be certain what is called for.

It called for all of the billing.

Mr. WILSON. I do not have the subpoena in front of me. We can

talk about that later.

Ms. POSTON. I want to be sure that we pulled it up properly. I

know that Mr. Jimenez and Mr. Teen worked on the case, Mr. Jimenez briefly in a meeting and Mr. Teen to do some legal research.

My counsel wanted to be sure that we checked it correctly. I would

agree with you.

Mr. BURTON. We will now recognize minority counsel.

Mr. BARNETT. Thank you, Mr. Chairman. I am Phil Barnett, the

minority counsel.

I would like to begin by trying to clarify this policy on FOIA requests and disclosing that there are not records.

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Mr. Huff, was it against the law, was it illegal, to disclose that

the Justice Department had no records relating to Mr. Abe?

Mr. HUFF. No.

Mr. BARR. So if it was a policy, it was a discretionary policy that

the Justice Department was following, in your view?

Mr. HUFF. It was a policy that was not required by law, but in

order to provide privacy protection for those individuals who did

have records, we would want to maintain a consistent—a fairly

consistent policy so that we don’t have the first three people say

no records and the fourth one say—refuse to confirm or deny. Is

that——

Mr. BARNETT. That is what is a little confusing about the record

in this case, because that seems to be almost exactly what happened here. There wasn’t in this case a consistent policy being applied.

I would like to make this part of the record. This is a letter, January 30, 1995, so it is before your decision rejecting the appeal, and

it is from the Executive Office of the U.S. Attorney, signed by

Bonnie L. Gay, Attorney in charge of the FOIA unit of that part

of the Department of Justice. This is really before any of what was

being discussed in the majority’s questioning.

It says a search of records located in the U.S. Attorney’s Office

for the Western District of Washington has revealed no records. In

other words, they filed something that was different from the policy; they just disclosed that they didn’t have any records. There

was nothing illegal about that.

And the Bureau of Prisons, in a letter dated March 2, 1995, did

essentially the same thing. They said: We don’t have any records

as regards your request; the microfilm records do not contain any

information. We have not located any records concerning your request.

So they also felt under no compunction or no reason not to say

that they didn’t have any records. They just took that position.

The INS, I think they said that they had records but they were

hard to read.

So if I was in Ms. Poston’s position, I would be confused. Part

of the Justice Department is saying we can’t tell you whether we

have or don’t have records. Other parts of the Justice Department

would say, well, we don’t have records.

So we have been talking about this policy as if it was a sacrosanct policy, but it doesn’t appear that it was. It was kind of a

sporadic, intermittent policy, at least as it applied in this case.

Mr. HUFF. In this case, the Bureau of Prisons is a little different

than the rest of the components of the Department of Justice. The

Bureau of Prisons always wants to be able to tell somebody. They

don’t want to have a secret prison. If somebody has been federally

confined, they do want to make that public, as a general preposition there may be protected witnesses that may cause problems,

but as a general rule they do want to give that information out.

With regard to the Executive Office for the U.S. Attorneys and

INS, I think those were incorrect determinations that were made

initially, and it would just be speculating on my part as to why

that would be.

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Mr. BARNETT. You would agree if you were Ms. Poston making

the request, it would be confusing to get different answers from the

Department of Justice and you might want to seek clarification of

that?

Mr. HUFF. Yes.

Mr. BARNETT. Thank you.

Moving away from the policy to the question about whether the

actions of the Department of Justice responding to the FOIA request involved any improper actions, particularly on the part of the

Attorney General, I want to ask some questions about that. The

chairman, testifying last year in front of the Rules Committee, said

he had information to indicate that the Department of Justice had,

‘‘changed a policy related to the release of information so that the

lawyer who was the sister of a good friend of the Attorney General

could help her client.’’ He further stated this policy change was

made personally by the Attorney General, according to one memo.

So the claim was the Attorney General was personally involved in

this decision. I want to go through and ask each of the witnesses

about that.

Ms. Poston, let me ask you first. Do you have any knowledge of

the Attorney General having any involvement in this matter?

Ms. POSTON. No, sir, none.

Mr. BARNETT. Mr. Schmidt, did you have any knowledge of the

Attorney General having any involvement?

Mr. SCHMIDT. No, she had none.

Mr. BARNETT. When you made your decision, Mr. Schmidt, you

made it based on the merits?

Mr. SCHMIDT. Yes.

Mr. BARNETT. And the Attorney General did not directly or

indirectly—— Mr. SCHMIDT. I never had any contact before or after with the

Attorney General about the matter.

Mr. BARNETT. Mr. Hogan, the same?

Mr. HOGAN. She had no role in this decision whatsoever, initially

or at any stage.

Mr. BURTON. Yielding briefly, the letter that is referred to is

dated July 19. You may have a copy of it. It is exhibit No. 39. This

is a letter to Ms. Poston—from Ms. Poston to Mr. Manuel.

In the second paragraph, ‘‘Our personal meeting with Deputy Associate Attorney General John Schmidt resulted in a policy decision

by the Attorney General to reverse the original position of the Department of Justice by authorizing release of the requested record

or a statement as to whether it existed in the past. That is a major

accomplishment and victory. The result, however, is quite perplexing.’’ And then it goes on.

Mr. SCHMIDT. It is obviously wrong. The Attorney General had

no involvement in the matter. That is a lawyer’s puffery, maybe,

to try to claim somehow they had reached some higher level than

they had in fact reached.

Mr. BARNETT. Do you agree with that, Ms. Poston?

Ms. POSTON. I believe it could have been more artfully written

to say the ‘‘office of,’’ but I don’t believe that it is puffery.

Mr. HUFF. I believe the date of the letter that you are referring

to came shortly after our July 11, 1995 letter; is that correct?

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Mr. BURTON. It is exhibit No. 39, dated July 19.

Mr. HUFF. My letter to Ms. Poston stated that Associate Attorney

General Schmidt—this is exhibit 37. My letter, which is just a couple of days before that, says that, ‘‘After considering your Freedom

of Information Act request under Attorney General Reno’s policy of

undertaking discretionary disclosure of information . . ..’’ There

may have been some confusion in that letter suggesting that there

was a new policy. This was under the Attorney General’s policy of

2 years ago, as Mr. Schmidt mentioned.

[Exhibit 37 follows:]

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Mr. BURTON. Well, if this is a misstatement by Ms. Poston in the

letter, it is consistent with other misstatements that we have seen

today. We have had Mr. Manuel and the other investigator, there

were all kinds of communications, and we have had all kinds of

miscommunications that follow the same pattern.

Mr. BARNETT. There is an April 10, 1995 transmittal slip from

the Office of Attorney General, saying that the Attorney General

is recusing herself, and I would like to make that part of the record

here.

Just to wrap up this part of the questioning, Mr. Huff, you had

no involvement directly with the Attorney General?

Mr. HUFF. I didn’t.

Mr. BARNETT. Every witness who was involved had no involvement with the Attorney General. She had recused herself from this

decision.

Just the final thing to ask about is whether there was what the

majority’s memo called a remarkable series of contacts that Ms.

Poston made, trying to get the information from the Department of

Justice through the FOIA request. The major support for that

seems to be on page 15 of the report, talking about a remarkable

volume of contacts between Ms. Poston and Mr. Hogan, where it

said there were 18 contacts that were there. That is based on, I

guess, some records that the committee has obtained.

Your testimony, I thought, Mr. Hogan, was that there were a lot

of calls that you didn’t respond to.

Mr. HOGAN. I spoke to Ms. Poston, my best recollection when Mr.

Wilson called me 2 weeks ago, was two or three times. It could

have been four, but two or three is my recollection. I have since

had a chance to look at Ms. Poston. It talks about staff of the Attorney General. She spoke to my secretary an awful lot. And early

on someone said, I am not sure if it was you, Mr. Chairman, she

made all of these contacts, and it was with me. The person who she

had contact with the most was my career secretary at the Department of Justice who took her messages, fielded her calls, fielded

her frustrations on the fact that I had not returned the calls, but

I spoke to her two or three times on this matter. And in each case,

I simply referred her to the person who is the appropriate decisionmaker.

Mr. BARNETT. Ms. Poston, is that your recollection?

Ms. POSTON. That is my recollection. I expressed to the staff of

the committee a few weeks ago when I was here, I seemed to spend

more time talking to his secretaries and trying to get him to call

me back than speaking to him. I expressed that to the committee

staff.

Mr. BARNETT. So it was one or two contacts between you and Mr.

Hogan on this. Let me ask you about that.

You are a lawyer with a client who wants to get information, Ms.

Poston. You have gotten no information from Mr. Huff, and other

parts of the Department of Justice have actually answered your

FOIA request and said they don’t have records. Is that inappropriate or just being an advocate and trying to seek the information for

your client?

Ms. POSTON. I think I was being an aggressive advocate because,

as my time records reflect and as I told the staff, I tried to get a

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meeting with the head of the FBI, which I got. I tried to move on

multiple fronts at the same time, and I don’t consider it an excessive number. I think it is just good lawyering.

Mr. BARNETT. Is there anyone on the panel that would think that

it is inappropriate, other than just being an advocate and zealous

representation?

Mr. HOGAN. I don’t, and I don’t want my comments about not

taking her calls to influence and make it sound like I did. She was

being aggressive. She never asked me to do anything that was improper. She was clearly advocating for her client. I just wasn’t

going to help her.

Mr. BARNETT. Mr. Chairman, I think those are all of my questions.

Mr. BURTON. Thank you. The gentleman from Ohio.

Mr. LATOURETTE. Thank you, Mr. Chairman.

Mr. Hogan, if you would flip to an exhibit which we have marked

as exhibit No. 32, it is a cover sheet from Ms. Poston, and then

there is a letter attached to it dated May 12, 1995. If you can find

that, I have some questions that I want to ask you about that.

[Exhibit 32 follows:]

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Mr. HOGAN. I have it, sir.

Mr. LATOURETTE. That apparently is a communication to you, indicating that she has received Mr. Huff’s response to the FOIA appeal, saying she is disappointed—and it is interesting, in the same

first paragraph she seems to be chastising the Department for not

living up to the Clinton administration’s commitment to opening

public records to public scrutiny.

In the second paragraph it says, would you assist the three of us

in scheduling a meeting with Mr. Schmidt? We have not yet attempted to contact Mr. Schmidt.

Do you recall receiving this letter?

Mr. HOGAN. Now that I see it, I recall receiving it; yes, sir.

Mr. LATOURETTE. As I understood your testimony, you didn’t do

anything other than to give a heads-up to Mr. Schmidt’s staff?

Mr. HOGAN. On the first page, the cover page, there is the check

mark in the upper right-hand corner. When I would see something

and give it to my secretary to file, that was our communication

that it just got filed.

Mr. LATOURETTE. On the second page, she invites you to ‘‘harken

back to the beginning of this matter when you and I first spoke.’’

That is one of the times that she got through?

Mr. HOGAN. Right. If I can explain that paragraph, I had the

same question of her back then, when she said some agencies are

telling me that they have no records, and other agencies are telling

us that they won’t tell us. I didn’t understand why the Department

would have different rules for different components. I expressed

that just as an aside. She makes reference to it in the letter. I followed that disclosure, although I am not a FOIA expert, I think

that is what that second paragraph on the second page refers to.

Mr. LATOURETTE. Specifically, it says that you commented you

couldn’t understand why they couldn’t just tell you whether they

had a record. Do you remember telling her that?

Mr. HOGAN. Yeah, particularly because other agencies had. I had

seen other FOIA requests where agencies said there are no records

responsive to your request. I didn’t understand why that was; but

again, I am not a FOIA expert.

Mr. LATOURETTE. Do you recall during this conversation when

you talked, that she was talking specifically that the difficulty was

in obtaining criminal arrest records?

Mr. HOGAN. No. When she made the call—many calls come to the

Attorney General’s office from the public, and my job is simply to

send her the right way. I did not focus on what the issue was. I

simply realized it was FOIA, I knew which number to give her, and

that really was the extent of my focus.

Mr. LATOURETTE. OK. Going to exhibit 47 and you can either

trust me on this or not—you don’t have to trust me, but those are

Ms. Poston’s billing records, and they show a number of contacts

again with the staff at DOJ in the waning days of May, immediately before she sets up her appointment with Mr. Schmidt. And

is it your recollection that you are not having contact with her at

that time and if she is talking to somebody, it is your secretary?

[Exhibit 47 follows:]

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119

120

121

122

123

124

125

126

127

128

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Mr. HOGAN. Right. The actual wording, sir, ‘‘phone call to,’’ that

doesn’t mean that she spoke to me. Phone call to my office. Talked

to staff; my secretary is staff. There are some that reflect that she

spoke to me. In my brief review, it is consistent with my recollection of talking to her two or three times.

Mr. LATOURETTE. So again it is your recollection that you had

nothing specifically to do with setting up the meeting with Mr.

Schmidt?

Mr. HOGAN. I spoke to Nancy McFadden. I said there was this

appeal issue coming. I wasn’t sure whether they took appeals from

it. I said that I had no role in it, and they should decide whatever

they wanted to do. To that extent there was some role, but I certainly—I never called Ms. McFadden and said you have to see her,

or said anything to Mr. Schmidt about it at all.

Mr. LATOURETTE. That leads me to you, Mr. Schmidt. As busy

as you were in your position, why would you get involved in a

FOIA matter of this trivial nature?

Mr. SCHMIDT. In general, if somebody called and complained

about a decision that was made in one of the divisions that reported to me, I talked or met with them. It was a general policy.

Mr. LATOURETTE. So this wasn’t unusual?

Mr. SCHMIDT. It was unusual because it was FOIA, and the

FOIA part of the office, the whole information part sort of ran

itself. It was not unusual to be getting a complaint about some decision within the Justice Department, and somebody wanted to

meet with me about it.

Mr. LATOURETTE. Specifically the meeting with Ms. Poston took

place on June 15, and at that meeting was Ms. Poston, John Smith,

Russ Bruemmer and yourself. Is that the full cast of characters

present at the meeting?

Mr. SCHMIDT. I don’t remember the meeting, other than I remember I came out of it with the intention of looking into the matter.

Mr. LATOURETTE. And during the course of that meeting, what

was her specific complaint? I understand that she was complaining

that Mr. Huff had denied her request for records. Did you have an

understanding what records she was concerned about?

Mr. SCHMIDT. I knew it was criminal arrest records of some sort,

but I don’t remember the meeting. I remember it more having

heard descriptions of it in the course of this testimony. I know

what it was about. All I really remember was she was complaining

about a decision that had been made denying a Freedom of Information request, and she and the other lawyers that were there

were expecting to litigate over it unless we resolved it, and therefore I was going to talk to Dick Huff about it.

Mr. LATOURETTE. Do you recall any conversation on her part

that she was just trying to get to the bottom of something; she had

information that this person had an arrest record and she was just

trying to follow through?

Mr. SCHMIDT. No, I don’t. I don’t think that we talked about the

underlying substance of the case. I don’t think that I knew anything about that.

Mr. LATOURETTE. After that, I assume that you arranged a meeting with Mr. Huff, did you not?

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Mr. SCHMIDT. I probably called him or asked my secretary to set

it up.

Mr. LATOURETTE. Mr. Huff, do you recall such a meeting?

Mr. HUFF. I did attend such a meeting.

Mr. LATOURETTE. Had you ever been in a one-to-one meeting

with the Associate Attorney General prior to this?

Mr. HUFF. I don’t believe so.

Mr. LATOURETTE. Let me ask you this, Mr. Huff. During the

course of this meeting, do you recall whether or not Mr. Schmidt

asked you whether or not it was permissible for the Department to

release arrest records for noncitizens?

Mr. HUFF. I don’t remember whether he precisely asked me that

question, but that topic came up, and the answer was that it was

not prohibited by the Privacy Act.

Mr. LATOURETTE. And did the Department have a policy against

releasing such information? Was that discussed at the meeting?

Mr. HUFF. Yes, he was generally aware of that, just by looking

at the correspondence.

Mr. LATOURETTE. Were you asking whether it was permissible

for the Department to vary from its policy in any given case?

Mr. HUFF. I don’t know if those words were used, but in the discussion of the meeting, the question was asked, yes.

Mr. LATOURETTE. Did you give your opinion to Mr. Schmidt on

that issue as to—did you express an opinion as to whether or not

the Department should deviate from its policy in this particular

case?

Mr. HUFF. I did.

Mr. LATOURETTE. What was that opinion?

Mr. HUFF. I recommended that we not do it.

Mr. LATOURETTE. How long have you been doing this work?

Mr. HUFF. Freedom of Information Act generally in the Department since 1976, and acting on administrative appeals since 1981.

Mr. LATOURETTE. I don’t know whether it was to counsel’s question or the chairman’s question, that Mr. Schmidt may have mentioned to you during the course of this meeting if there wasn’t an

exception made to the policy that there would be litigation by Ms.

Poston on behalf of her client. Was that discussed during the

course of this meeting?

Mr. HUFF. I believe so, but I can’t say with certainty.

Mr. LATOURETTE. Did you also express an opinion as to whether

or not the Department would prevail in that litigation?

Mr. HUFF. If we discussed the issue, I would say that the Department had a very high likelihood of prevailing.

Mr. LATOURETTE. Following this particular meeting, were you

asked to look to see if there were any records on the individual that

was under discussion?

Mr. HUFF. I think it was during the meeting I was asked, and

I did.

Mr. LATOURETTE. After the meeting you did the search?

Mr. HUFF. I communicated with the senior officials, the Executive Office for the U.S. Attorney and the senior official for the FBI

in charge of FOIA.

Mr. LATOURETTE. Specifically—and I have seen your communique—the specific things that you asked for, you asked for a speVerDate 11-MAY-2000 11:38 Jul 18, 2001 Jkt 000000 PO 00000 Frm 00138 Fmt 6633 Sfmt 6633 C:\DOCS\73168.TXT HGOVREF1 PsN: HGOVREF1
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cific arrest record occurring in Seattle, WA in 1963. Is that what

you searched for?

Mr. HUFF. That is what the components were asked to search

for. I didn’t do the search.

Mr. LATOURETTE. But you asked somebody to make that search?

Mr. HUFF. Yes.

Mr. LATOURETTE. I didn’t read Ms. Poston’s original FOIA request. Was it a request on that individual or did it request an arrest record occurring on dates in 1963 in Seattle, WA?

Mr. HUFF. I’m sorry, I am confused as to the question.

Mr. LATOURETTE. There are two ways to search a record. You

can put in name, birth date, and Social Security number. I am

wondering if that is the request that you made at your direction,

or did you specifically request for an arrest record from Seattle,

WA in 1963; do you recall?

Mr. HUFF. If you give me a second, I think I have a copy of the

fax or the memo that I sent to each one of them.

Mr. LATOURETTE. OK.

Mr. HUFF. I believe that is on page 36.

Mr. BURTON. Exhibit 11.

Mr. LATOURETTE. Exhibit 11?

Mr. BURTON. That is the request.

Mr. HUFF. My referral to the FBI on what I asked them to look

for was on exhibit 36. Her request may very well be earlier. But

this is what I asked the FBI to look at and I had an identical letter/memo that I sent to the Executive Office for U.S. Attorney. I

didn’t ask them to look in the Seattle field office. I asked them to

look in the Western District of Washington. That was exactly the

search, and that is what I faxed them.

[Exhibit 36 follows:]

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Mr. BURTON. Exhibit 36 is a request from Mr. Huff.

Mr. HUFF. The day after my meeting with Mr. Schmidt.

Mr. BURTON. It is June 26 from Mr. Huff to Kevin O’Brien. Do

you see it, Mr. LaTourette?

Mr. LATOURETTE. Yes, I do.

Mr. BURTON. OK.

Mr. LATOURETTE. I am just wondering whether or not the information to look for a specific arrest occurring in 1963 in Seattle,

whether that information was brought to the Department by Ms.

Poston’s communication and request, or you got that from some

other means?

Mr. HUFF. I believe that was in her administrative appeal. I

would have to search for that, but I think that specific information

was in the administrative appeal.

Mr. LATOURETTE. Whoever you asked to conduct the search came

back and told you that there were no such arrest records in the

NCIC or whatever data bases were being searched; is that correct?

Mr. HUFF. Yes. They said that for the data bases that they

searched for the different parts, for the FBI and for the Western

District of Washington.

Mr. LATOURETTE. And the policy is similar to the one where the

Department doesn’t talk about ongoing investigations. You neither

confirm nor deny, and the reason is to protect a person’s privacy.

But the problem is when you read the newspaper and someone

says that John Brown is up to no good and he is being looked at

by DOJ and the FBI, if the FBI or the DOJ said no, we are not

looking at him as opposed to issuing—it always leads to the conclusion, if you don’t deny, there is something going on and this person

is into some kind of mischief; is that fair? That’s kind of convoluted.

Mr. HUFF. I’m sure that is fair. Is that the question?

Mr. LATOURETTE. I get what I am talking about.

Anyway, when you found out that there were no records related

to this individual in the criminal system data base, did you communicate that to Mr. Schmidt?

Mr. HUFF. I believe I did. I have notes in my file that I tried to

call his office, but his secretary said he was not available and

would be available the following week. A week after that, I sent

this letter. I believe I must have contacted him.

Mr. LATOURETTE. Did you have a second meeting with Mr.

Schmidt on this matter or was it through written correspondence?

Mr. HUFF. We may have had a phone conversation, but I don’t

believe we had a second meeting.

Mr. LATOURETTE. Thereafter, Mr. Schmidt made a decision to

make an exception to the Department’s policy for reasons that he

has discussed with the committee; is that right?

Mr. HUFF. Yes.

Mr. LATOURETTE. How did you become aware of that if there was

no second meeting?

Mr. HUFF. I think that was the phone conversation. When I

called him back and tried to get back in touch with him, and I don’t

have notes in my file saying I did speak with him, but then I

wouldn’t have sent this letter had I not spoken with him.

138

Mr. SCHMIDT. I think we talked on the phone. I think I had effectively made the decision in the first conversation, if we find out we

have nothing, we ought to go ahead with that. But I think you did

call me back and tell me you had nothing.

Mr. HUFF. It is my impression, I think when I left the meeting,

if we had no records, we were going to so state that; but I don’t

know that was absolutely firm. But I think that is the impression

that I left the initial meeting with.

Mr. LATOURETTE. Did you express an opinion during the meeting

or phone call that was a decision that you did not agree with based

upon your position in the Department?

Mr. HUFF. Yes, I recommended against it in our first meeting.

Mr. LATOURETTE. How about during the phone call, do you have

any separate recollection?

Mr. HUFF. That is the phone call I don’t recall.

Mr. LATOURETTE. What is the typical involvement, again based

upon your position at the DOJ relative to FOIA requests, what is

the typical involvement that political appointees at the DOJ have

in your experience with the FOIA requests that are made upon the

Department—Mr. Schmidt being a political appointee?

Mr. HUFF. Other than when records are being sought in their

particular office—such as Mr. Hogan, I believe, was the contact for

records in the Attorney General’s Office—where they would search

for them and if they found them, they would discuss what they

were going to hold or disclose, that was a separate, isolated part

of our office that worked on those. Other than things such as that,

or conceivably the associate’s office might have somebody that

would also deal on an issue like that. Other than that, the answer

is it was very unusual.

Mr. LATOURETTE. Can you recall any other occasions during your

tenure at the Department of Justice when your decision relative to

FOIA requests have been overruled by political appointees of the

Department?

Mr. HUFF. There have been—I can recall one where it was—I

had not written a determination yet, and there was a disagreement

as to just the opposite. Instead of what I thought ought to be withheld, I thought something ought to be disclosed; and leadership

said no on something like that a number of years ago.

There was another one—which I think I mentioned—with staff

dealing with Terry Anderson and his request for information about

hostages. And I think the DEA refused to—I mean, kidnappers of

Terry Anderson in Lebanon—and he asked for a number of different items, including information on several individuals that

were his captors, and I confirmed DEA’s refusal to confirm or deny.

Subsequently Mr. Anderson bought a lawsuit. There was press

furor about whether or not it was appropriate for us to assert privacy on behalf of terrorists. Again they were foreign nationals and

so the Privacy Act didn’t apply to them. And in that particular

case, I discussed that with political personnel in the Department,

senior personnel, and we discussed whether or not that was appropriate. And the determination was made that we should go ahead

and argue that case without using the privacy exemptions, and

with what other exemptions would apply, perhaps the national seVerDate 11-MAY-2000 11:38 Jul 18, 2001 Jkt 000000 PO 00000 Frm 00142 Fmt 6633 Sfmt 6633 C:\DOCS\73168.TXT HGOVREF1 PsN: HGOVREF1
139

curity and other exemptions would be used in that litigation. So I

was a part of that.

That was an example where my opinion or my views were overruled because we didn’t support the position that I had taken initially in litigation.

Mr. LATOURETTE. I think in the notes that I have in your meeting with the committee staff, the one example that you brought up

dealt with Justice O’Connor and her confirmation process; and the

other was the famous hostage, Terry Anderson, which you just discussed.

Are you able, based upon your experience and knowledge of

FOIA and how the policy has been implemented at the Department

of Justice, are you able to distinguish the two overrulings or exceptions made in those two instances dealing with a Justice of the Supreme Court and a fellow held hostage over in Lebanon from the

request that Ms. Poston has made in this request? Are they the

same? Do exigencies exist in this case as existed in the others?

Mr. HUFF. I don’t know if there are any particular unique circumstances about the request for Justice O’Connor concerning her

papers that dealt with the Department’s consideration of whether

to recommend her to the President for the Supreme Court. The underlying papers.

Mr. LATOURETTE. And again, regardless of the threat of whatever litigation Ms. Poston had in mind, is there any doubt in your

mind, based upon your experience at DOJ, that the Department

would have prevailed?

Mr. HUFF. Yes, I think the odds were very good we would prevail.

Mr. LATOURETTE. Thank you, Mr. Chairman.

Mr. BURTON. I think we are just about to conclude. Can you

think of any other questions?

It just seems interesting to me that there were three phone calls

by Ms. Poston to Mr. Hogan—I guess two or three on May 30, May

31; and on June 1st, there was a conference call with I guess Mr.

Schmidt, and that is the date that they set up the meeting.

Can you recall any other time when you met with somebody that

you didn’t know, like Ms. Poston—you didn’t know her very well?

Mr. SCHMIDT. I had no conference call that I remember with Mr.

Hogan and Ms. Poston.

Mr. HOGAN. Just so I can clarify something. Ms. Poston’s bills

say conference call. There never was more than two people on the

phone that I knew of. I assume what that means, we had a conference during a phone call. But in normal parlance we think of a

conference call as a multiparty communication.

Mr. BURTON. It says conference call with Associate Attorney General.

Mr. HOGAN. I noticed that same thing with mine. When I spoke

to her, as far as I knew she and I were the only two on the line,

but the bill seems to reflect a conference call. I think that means

we had a conference on the call.

Mr. SCHMIDT. I am confident I never had a conference call with

John Hogan. It never happened.

Mr. BURTON. Did you know Ms. Poston before you met with her?

Mr. SCHMIDT. No.

140

Mr. BURTON. Was it kind of a common practice for you to just

meet with people you didn’t know about issues like this?

Mr. SCHMIDT. When people called and complained about decisions made within the part of the Justice Department that reported

to me, it was my general practice to talk with them and meet with

them. I always felt it was a way of having some source of information about what was going on that wasn’t channeled through the

bureaucrats, if I can put it that way. So I did have a general policy

of doing that.

Mr. BURTON. Did you ever have occasion to, in effect, overrule

Mr. Huff’s recommendations that you don’t do this sort of thing?

Mr. SCHMIDT. I don’t remember any other case where I overruled

Mr. Huff. I remember talking to him about a couple of cases which

involved timing issues. The most frequent complaint I heard in

FOIA cases was, I can’t get any response. And I do recall cases

where people would call me and I would make some inquiry. But

this is the only case that ever came to me where anybody complained about a specific decision that had been made to deny a

FOIA request.

Mr. BURTON. So you don’t recall talking to Mr. Huff about any

case like this?

Mr. SCHMIDT. Mr. Huff reported to me. He came to my regular

staff meetings and we talked about the affairs of the Office of Information and Inquiry, but I don’t remember any specific case where

anybody came and complained to me and I ended up reversing a

decision or overturning a decision that he had made.

Mr. BURTON. Do you recall, Mr. Huff, ever having any kind of

conversation about any other FOIA request like this with Mr.

Schmidt?

Mr. HUFF. Not a specific request. The sort of statement, yes, we

might talk about timing issues of the Department generally.

Mr. BURTON. Did you ever make any other recommendation of

this type that this was a practice that should not be changed or

something like this should be done? Is this the only time that you

made that recommendation?

Mr. HUFF. This is the only time where we discussed a matter of

this sort.

Mr. BURTON. Where you made that kind of recommendation.

Anything else? Mr. LaTourette.

Mr. LATOURETTE. Mr. Schmidt, at the time you made the decision to make the exception to Department policy, were you aware

of the Attorney General’s recusal, the document that the minority

counsel put in; were you aware that she had recused herself from

the case?

Mr. SCHMIDT. I don’t know if it would have come up because she

wasn’t in the loop, and I wasn’t aware of any prior involvement she

had had in the matter.

Mr. LATOURETTE. As a result of today’s hearing, you are aware

that she recused herself, and why. Were you aware of that before

today’s hearing?

Mr. SCHMIDT. I don’t have any recollection of it at the time. I

knew that Ms. Poston was from Steel, Hector and I knew that the

Attorney General had briefly been at that firm, but I didn’t have

any other knowledge then about anything else and—I don’t think

141

that I knew anything about the Attorney General having any prior

contact with this matter.

Mr. BURTON. Let me interject that the memo that we have before

us was from the Attorney General. This is from the Attorney General and it says—it is exhibit 31. It says—and this goes to—for the

staff of the Attorney General. It was cc’d to the Associate Attorney

General, carbon copy to you. So it went—— [Exhibit 31 follows:]

142

143

Mr. SCHMIDT. If she sent me a memo like that, it would have

come around. We got a lot of memos like that from the Department

of Justice people that reported to me. I am recusing myself from

this or recusing myself from that.

Mr. BURTON. This was sent to you directly from the Attorney

General, and she initialed it and put her name on it.

Mr. SCHMIDT. She sent a general memo around the office.

Mr. BURTON. She sent a specific carbon copy to you.

Mr. SCHMIDT. I don’t remember it.

Mr. LATOURETTE. You were telling me—John Smith, his participation in a confirmation hearing; you didn’t know that he was involved?

Mr. SCHMIDT. I did not know that. I knew he was from Steel,

Hector, but I did not know that.

Mr. LATOURETTE. Thank you.

Mr. BURTON. I think that about covers the waterfront. We appreciate very much your being here.

Mr. PALMER. Mr. Chairman, may we have a copy of the report

that the committee has issued?

Mr. BURTON. We will be very happy to give you a copy of the report and any other information that you would like. We stand adjourned.

[Whereupon, at 4:17 p.m., the committee was adjourned.]

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