Judicial Watch Pushes for Victory in Filegate Lawsuit

If there is one legal case that exemplifies the "never-give-up" attitude of Judicial Watch and its attorneys it is the Filegate lawsuit, which was filed 13 years ago when Bill and Hillary Clinton still occupied The White House. As long-time readers of the Weekly Update know, over the years, Judicial Watch has continued to aggressively pursue justice in this matter, earning some key victories along the way (like the discovery of the hidden White House emails, to name just one example).

And just this week, on October 19, we filed a "Cross-Motion for Summary Judgment," asking the U.S. District Court to rule in favor of two Filegate victims, Cara Leslie Alexander and Joseph P. Duggan (Cara Leslie Alexander, et al. v. FBI, et al., C.A. No. 96-2123 (RCL)).

At its core, Judicial Watch's Filegate lawsuit is the Clinton White House's illegal maintenance of the private FBI files of hundreds of former Reagan and Bush officials.

Specifically with respect to Judicial Watch's clients, the Clinton White House procured their private FBI files in 1993 and 1994 respectively by claiming the two individuals required access to the Clinton White House. One problem. Neither individual worked for the White House any longer and therefore did not require access. This was simply a ruse by Clinton officials to get their hands on the files, something they did with regularity. In fact, one FBI official testified they made 488 such requests based on the bogus claim of "access" in a single year!

And to make matters worse, not only did the Clinton White House misstate the facts to get the private FBI files, it held on to them for almost three years!

Now, after 13 years of pushing the same tired justification for this illegal handling of private information, the FBI and the Obama White House (defending corruption in the Clinton White House) have asked the court to rule in its favor by filing a "Motion for Summary Judgment." (A "summary judgment" is granted when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law.) We filed our own Cross Motion for Summary Judgment in reply, and here is our basic argument:

Over the long and complex history of this matter, certain key facts have remained irrefutable. First, FBI background investigation files are perhaps some of the most sensitive records that the federal government maintains on individuals.

Second, the FBI has never disputed that it sent literally hundreds of these files to the Office of Personnel Security ("OPS"), a component of Executive Office of the President (EOP), despite the fact that OPS's requests for the records were, in the FBI's own words, "without justification and served no official purpose." Indeed, the FBI has admitted that it failed to "institute sufficient protections to effectively safeguard the records"...and that their handling of the matter resulted in "egregious violations of privacy."

...There can be no genuine dispute that the FBI violated the Privacy Act by failing to establish appropriate administrative safeguards to insure the security and confidentiality of its background investigation files and that its failure to do so was in flagrant disregard for Plaintiffs' rights under the Privacy Act.

Third, regardless of the circumstances under which OPS acquired the records at issue, there has never been any dispute that OPS continued to maintain them long after it was known that the persons who were the subjects of these records never worked at the Clinton White House and had no need for access to the Clinton White House.

As we further noted in our Cross Motion, even Bill Clinton himself has said his administration should be held accountable. Clinton told historian Taylor Branch in preparation for his recently published book, "those files did not belong at The White House," and that they "should have been isolated and returned immediately." According to Branch, Clinton said "[h]is administration should and would be held accountable."

We agree.

But the Obama administration has taken the legal position that the Privacy Act does not apply to the Executive Office of the President and the Clinton FBI files scandal was not a scandal.

This will be worrying to those of us concerned about the Obama White House's collecting "fishy" emails and compiling an enemies list of new organizations, radio hosts, businesses, and industry associations to attack and smear. Is the Obama defense of the FBI files scandal less about that Clinton scandal and more about what his White House is up to now?

Deposing Corrupt Politicians - Filegate Depositions

In Alexander et al. v. FBI, et al., the case commonly known as “Filegate,” Judicial Watch represented plaintiffs from the Reagan and George H.W. Bush administrations who claim that the Clinton administration gained illegal access to their FBI files. Hillary Clinton is mentioned specifically as a defendant in the case. The FBI and White House are being sued for breach of the Federal Privacy Act while other individuals, including Mrs. Clinton, are being sued for invasion of privacy. Below you will find the depositions of three of the most notable figures in the case.

James Carville was the former campaign manager and political consultant to President Clinton. He is questioned in this case regarding his knowledge of White House activity that involved the files in question. George Stephanopoulos was a senior political advisor to President Clinton as well as his press secretary and communications director at various times in the administration. He was also questioned about his knowledge of Filegate. Linda Tripp, a White House employee during both the Bush and Clinton administrations, provided Judicial Watch with perhaps its best evidence of all. It is Tripp that reveals a direct connection between Mrs. Clinton and the illegally obtained files.

Filegate Depositions

Linda Tripp deposition - see p. 800 where she talks about being fearful of New York City public schools "Chancellor" (in name only) Joel I. Klein

JW Files Appeal with Supreme Court Challenging Hillary Clinton's Eligibility to Serve as Secretary of State
Wednesday, January 6, 2010 at 1:34pm
Judicial Watch: High Court Has an Obligation to Stop an End-Run Around U.S. Constitution
LINKContact Information:
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Washington, DC -- January 6, 2010

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that on December 31, 2009, it filed an appeal with the United States Supreme Court in its lawsuit on behalf of U.S. Foreign Service Officer David C. Rodearmel challenging Hillary Clinton's constitutional eligibility to serve as Secretary of State (Rodearmel v. Clinton, et al. on appeal from the United States District Court for the District of Columbia).

Judicial Watch's lawsuit, filed on January 29, 2009, maintains that the Ineligibility Clause of the U.S. Constitution prohibits Clinton from serving as Secretary of State and that Mr. Rodearmel cannot be forced to serve under the former U.S. Senator, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States. A three-judge panel of the U.S. District Court dismissed Judicial Watch's lawsuit on October 29th, ruling that Mr. Rodearmel lacked "standing" to bring the lawsuit. The court did not address the constitutional merits of the lawsuit itself.

As Judicial Watch notes in its brief, federal law provides that an Ineligibility Clause appeal related to the position of Secretary of State may be brought directly to the U.S. Supreme Court within 20 days of a judgment on the validity of the appointment. Moreover, the law states, "The Supreme Court shall, if it has not previously ruled on the question presented by an appeal...accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal."

There are two key questions at issue in this lawsuit, according to Judicial Watch's Supreme Court appeal (technically called a "Jurisdictional Statement"):

(1) Whether an Officer of the United States, when placed in a position where he must either violate his oath of office or risk substantial, adverse consequences to his employment, has standing to maintain a challenge to the appointment of a constitutionally ineligible superior.

(2) Whether members of Congress who are otherwise ineligible for appointment to an office in the Executive Branch under the plain language of Article I, section 6 of the Constitution, can have their eligibility restored by an act of Congress.

With respect to the issue of standing, Judicial Watch contends that Mr. Rodearmel "demonstrated in the district court that he is being injured in his employment by being required to serve under, take direction from, and report to a constitutionally ineligible superior, Mrs. Clinton. This is because [Mr. Rodearmel] has been placed in a position where he either must violate his oath of office or risk substantial, adverse consequences to his employment."

With respect to Congress' attempt to circumvent the Ineligibility Clause by "rolling back" compensation for the position of Secretary of State to the level in effect on January 1, 2007, Judicial Watch maintains: "This [fix] does not and cannot change the historical fact that the 'compensation and other emoluments' of the office of the U.S. Secretary of State increased during Mrs. Clinton's tenure in the U.S. Senate."

"The Supreme Court has an obligation to settle the Ineligibility Clause issue once and for all," said Judicial Watch President Tom Fitton. "If our government and courts will not observe even the plain and unambiguous provisions of the Constitution, then we are cut adrift from the anchor of law and liberty and the rule of law is in jeopardy. We hope the Supreme Court takes this opportunity to vindicate the Constitution."

Rodearmel v. Clinton
LINK

Article I, section 6 of the U.S. Constitution provides:

"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time."

This provision, known as the "Emoluments" or "Ineligibility" clause is an absolute prohibition and does not allow for any exceptions. The "Ineligibility Clause" is interpreted by most as designed by our Founding Fathers to protect against corruption and ensure the separation of powers among the three branches of government.

On January 29, 2009, Judicial Watch filed a lawsuit against newly confirmed Secretary of State Hillary Rodham Clinton on the ground that she is constitutionally ineligible to serve as Secretary of State under the Ineligibility Clause. The "emoluments" or salary of the U.S. Secretary of State increased at least three times during Mrs. Clinton's most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton's recent resignation.

Judicial Watch's lawsuit is on behalf of Foreign Service Officer and State Department employee David Rodearmel, a retired Lt. Col. in the U.S. Army Reserve Judge Advocate General Corp. See Rodearmel v. Clinton, Case No. 09-171 (U.S. Dist. Ct., Dist. of Col.)). The lawsuit maintains that Mr. Rodearmel cannot serve under Secretary of State Clinton as it would force him to violate an oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States. For more information on Mr. Rodearmel, see below.

In December 2008, Congress attempted to evade the clear prohibition of the Ineligibility Clause with a so-called "Saxbe fix," reducing the Secretary of State's salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, most notably allowing Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior. These attempted "fixes," however, are insufficient, as they cannot alter the historical fact that -- as in Mrs. Clinton's case -- salaries increased during the terms for which these officials were elected, thereby violating the Ineligibility Clause.

The lawsuit was reviewed on an expedited basis by a special three-judge panel of the U.S. District Court for the District of Columbia who held that Mr. Rodearmel did not have standing and did not comment on the constitutional questions. Judicial Watch filed an appeal to the U.S. Supreme Court.

Legal Documents

Obama Administration Denies Judicial Watch FOIA Request for White House Visitor Logs