At the July 14, 1994, hearing, the Court requested supplemental briefing on a narrow question: Whether cases addressing stays in parallel civil proceedings pending completion of ongoing criminal investigations require entry of a stay here. Although conceding in their second sentence that "those cases are not directly applicable here" (Ds. Supp. Br. at p. 1), Defendants proceed through 13 pages to reargue several entirely different arguments. Their paper should, we respectfully submit, be stricken as an unauthorized filing. Defendants' paper advances three well-worn arguments. First, they argue that Independent Counsel Fiske does not want the documents released because of their potential effect on witnesses' testimony. Putting to the side the - 2 restrictive security measures taken with regard to these documents, Mr. Fiske has himself made documents available to the White House Counsel for the very purpose of preparing witnesses to testify before Congress. (May 17, 1994 Article, Washington Post, attached hereto as Exhibit L.) Moreover, as this Court recognized at argument, federal agencies -- including Defendants -- release documents during criminal investigations all the time. Second, Defendants express skepticism about Congress' ability to maintain the confidentiality of the documents. This argument has been repeatedly rejected by the Courts. FTC v. Owens-Corning Fiberglas Corp., 626 F.2d 966 (D.C. Cir. 1980); Exxon Corp. v. FTC, 589 F.2d 582 (D.C. Cir. 1978), cert. denied, 441 U.S. 943 (1979). Indeed, Defendants never worried about this during the Columbia, Lincoln, Silverado, or CenTrust investigations. Next, Defendants reargue the equitable discretion doctrine, but still do not deny that the doctrine has never been invoked in a case -- such as this one -based upon a statute expressly granting judicial review. Defendants conclude by arguing in essence, that the Court should stay the proceedings even if the law is to the contrary because such a decision would be unreviewable. Perhaps Defendants make decisions for partisan motives on the (incorrect) assumption that those decisions will not be reviewed, but the federal judiciary - and this Court in particular -- has never taken such an expedient course. - 3 CONCLUSION For the reasons stated, Defendants' memorandum should be stricken as an unauthorized filing. DATED: July 19, 1994 Respectfully submitted, Bobby R. Burchfield 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20044 (202) 662-6000 Attorneys for the Plaintiff Kington Post May 17, 1994 First Phase of Whitewater Investigation Is Near End, Fiske Tells White House By Ann Devroy and Susan Schmidt White House officials say Whitewater special counsel Robert R. Fiske Jr. has told them he is nearug the end of the first phase of his investigation, prompting their own internal investigation in preparation for sunimer congressunal hearings. White House Counsel Lloyd N. Cutler said yesterday that he has obLained an agreement from the Treasury Departinent for access to its documents related to contacts White House officials had with Treasury offarinks about Whitewater. Fiske yesterday declined to say how close he is to determining whether those contacts were inproper or legni, but amid, "It cer tainly isn't over." Fiske said White House officials recently asked him whether they would be interfering with his investigation if they reviewed the Treasury documents. Fiske said he told them his investigation was at a point where such a review would not interfers. That's all we told them," said Fiske, adding that White House offlcials were not saking whether they should take such a step. Political appointees at Treasury have been running the federal Rewolution Trust Corp and had access to information about the criminal and civil caves arising out of the failure of Madison Guaranty Savings & Loan in Arkansas. Madison was owned by James B. McDougal, jint owner with the Clintons of the Whitewater real estate venture the Opark Mountains. Senior Treasury and White House officials had a series of meetings about the Madison-Whitewater investigation beginning last fall. Twelve officials all have testified before a grand j . and Piske has d documents. subpornsed all Cutler said yesterday at Fiske had withdra any obje o the obtaining f White Hou dorm ma Med to ry copies and of her w those contacts. Fiske originaly had asked officials at the White Hou and at Treasury not to conduct internal investigations of the contacts because they could lend to coordinating statements and other actions that would not be conducive to a full investigating by Fint. Cutler and Treasury Secretary Lloyd Boatson and top anni. worked out what Culler mid were procedures to keep from the White House ary documents that hvalve the substance of the Whitewater inderal investigation but incluse docements that relate to White HouseTreasury discussions of it. An administration official Treasury "had queima" about the White House re feare White sloa. because of on with the as col duced " full unders keep us from seeing docu we should not be soring." stances that do not interfere with Fiske's investigation. Senate Majorty Leader George J. Mitchell (DMaine) and Sunday of hearings, "We Are going to do it as promptly as we can, do it right after the conclusion of the first phase." Mitchell and Senate Minority Leader Robert J. Dole (R-Kan.) have been engaged in periodic negotia tions over the timing and scope of any congressional hearings. Flake said he planned to promptly issue a forensic report on Foster. putting to rest questions about whether there was foul play or if he committed suicide. as a Virginia medical examiner has ruled. Some sources close to the White probe likely to go into 1995 na House my they expect the report to LLOYD IL. CUTLER White House probe to begin VINCENT FOSTER ... report on his death promised Cuther aid the White Thu's pr mary novel for the ducum was to prepare for congressional hearings where White Houer and Treasury officials might have to appear. The Patus of those bearings has been in iting word from Flake that o longer object to at least White Senate has voted to conduct rings at a time and under circuns be issued soon and bebeve it will conclude Foster's death was a sad cide. However. Flaise issued a broad subpoena two weeks ago that seeks to track documents that were in Foster's office at the time of his danth. It could not be learned whether that information will be pursued seperately or become part of the report on his death. Fiske's investigation now seems likely to stretch well into 1995. Flake is still adding to his staff of more than 30 lawyers and investig ton: Two more Lawyers were hired a week ago, and a message to FBI bureaus around the country last month said Fiabe in seeking agents with backgrounds in financial and white-collar crime. In addition to the Washington end of the probe, the special counsel's office has been investigating t Lairs of Madison Gearanty Rone Law Firm. Former Judge David Hale, who guilty to fraud charges an erating with Flake, has appeare peatedly before the grand pary Le Rock, con Hale, who y back daninist he was preso thes-Gov. B Ia venture capit the Small Bust has alleged that the mid-1980s by on, Mr Dougal and Jim Guy Tucker (D), current Areness governor, to make fraudulent loans. One loan, in the amount of $300,000, was used to an advertising company owned by Susan McDougal, and at least some of that money ended up huying land in Whitewater's name. Clinton and McDougal hoth Kay the Clintumn diri aut kurve the SBAbacked kon was used for Whitewater lunt. Hale, who made his allegations public last fall, has largely disap peared from view. Court officials in Little Rock maid he has at times bren placed under FBI protection. In addition to pressing forward on the Hale allegations, Fiske's staff has bean poring over records at the where Foster, HilleRodham Clinton and former autowey general Webster L ere all partners before atly delivered a 3A and case files. Hubbell's activities the arces said. Among other thing the special counsel's office is investigating Hubbell's hairdling of a Madison-related inwsun for the government and the kni hill he submitted. CERTIFICATE OF SERVICE I hereby certify that I have caused true and correct copies of the foregoing Plaintiff's Motion to Strike Unauthorized Filing to be hand-delivered to the following parties, on this 19th day of July, 1994: Kirk K. Van Tine Jesse R. Adams III BAKER & BOTTS, L.L.P. The Warner 1299 Pennsylvania Avenue, N.W. Elizabeth R. Moore OFFICE OF THRIFT SUPERVISION 1700 G Street, N.W. Washington, D.C. 20552 John C. Binkley RESOLUTION TRUST CORPORATION 801 17th Street, N.W. Washington, D.C. 20434-0001 Jennifer Goleman |