The Washington Park Police were swift in concluding that the death of Vince Foster was a suicide. The gun utilized was a 1913 Colt made up from parts of two separate weapons. No fingerprints were found. No one in the family could identify it, nor could matching ammunition be found anywhere. Oddly, Foster somehow managed to walk 700 feet into the park without picking up a trace of soil on his shoes. The bullet made an exit wound of 1 inch by 1 1/4 inches in the back of his head, yet no skull fragments or brain matter was ever found. No one could explain nor identify the carpet fibers on Foster's clothes.
Six months earlier, in January of 1993, the Clinton Administration had just begun. Foster prepared a legal Memorandum to Hillary Clinton outlining a methodology by which she could bypass the effect of the Freedom of Information Act (FOIA) as it applied to the records of the formative Health Care Task Force. A former government lawyer who worked on Watergate, she wanted the work and records of the Task Force to be absolutely secret. The incoming staff members were instructed to “destroy old drafts.”
Ira Magaziner had been a friend of Bill Clinton and Hillary for years. As a student leader and Vietnam War protester, he had orchestrated numerous student protests (among which eliminated the grades “D” and “F”) at Brown University. He found these grades to be antithetical to the basic premise that those who were admitted to Brown were presumptively superior. Over the years, he had developed a radical left-wing philosophy with a strange attraction for the intricacies and power of huge bureaucracies. He applied this philosophy to private business consultation for megalith companies — and did very well financially. He developed a system of peer review, called the “tollgate process” by which huge bundles of information and proposals could be transformed and manipulated into even bigger and more intricate systems, like giant human circuit boards. It was natural therefore, for Bill and Hillary to choose “fellow traveler” Ira to lead the “tollgate” process and transform the private health care system (now hopelessly addicted to Medicare and Medicaid), into a huge, federally managed health cooperative, like the Soviet agricultural cooperatives fashionable among the radical left, former hippie movements. Bill Clinton said this Universal Health Care was to be “his gift” to the American people. He warned that he would veto anything less. His wife demanded that it be prepared for Congress within 100 days under the strictest of secrecy. They were afraid that if physicians and the public became aware of the imperial power being designed for the National Health Board and the cost of Universal Health Care, Congress would balk at even the fictitious proposed budget.
It is now legend that the Association of American Physicians & Surgeons (AAPS), legally lanced the secret task force and pulled its secrets, name by name, paper by paper, into the sunshine. It destroyed the Health Security Act. What is less known, but more frightening, is the abuse of power and corruption which permitted the President, the First Lady, and the Department of Justice to combine forces to manipulate even a federal court in suppressing and distorting the facts.
Those who are familiar with the case know it was fundamentally about the public’s right to know pursuant to the rigors of the Federal Advisory Committee Act (FACA). The only relevant exemption from the act is that which excuses Advisory committees wholly composed of federal employees. Consequently, the lawyers from the White House and from the Department of Justice including (now prison inmate — then Associate Attorney General) Webster Hubbell, contrived to make up exemptions by anointing outside experts from the managed care industry (among others), as “special government employees.”
In order to hide the records from the public, the President declared the records to be his personal records and therefore, non-disclosable under the Presidential Records Act. Finally, since the legal umbrella of the White House covered the working groups (even though virtually every agency had Democratic “consultants” assigned to the groups), the Freedom of Information Act would conveniently not apply. FOIA only applies to “agencies.” The Office of the President is cleverly not an “agency.”
Moreover, in order to shield the First Lady from a duty to disclose, the Department of Justice (DOJ) argued at her insistence for the first time in our 200 year history that she is an “officer of the United States.” Therefore, she is an executive employee who is exempt from the Federal Advisory Committee Act. Even the Federal Court of Appeals, obviously suffering from the beltway madness now rampant in our Capitol, skipped reading the Constitution, engaged in adroit semantics, and bestowed upon the First Lady the crowning exemption. As a result, no one has or (unless Congress holds hearings) ever will see one shred of paper written by Hillary Rodham Clinton, as she and Magaziner planned to create a National Health Board in the image of the War Rations Board of the 1940s.
In order to create these exemptions, of course, and stonewall the federal courts, the White House and the Department of Justice had to lie. These politicos are not simply semantically challenged. They are clever word assassins. They have gone through Special Forces training in stealth syntax. Consider for example, the memorandum from White House Aide Atul Gawande to Magaziner a month before (February 1993) the AAPS lawsuit was filed:
As you requested, I looked into the myriad ethics rules that apply to our hiring of consultants. The White House Counsel is looking into this matter closely (as is HHS’s) and his designee raised a major red flag with me.
In discussions this afternoon, Steve Neuwirth (in the Counsel’s office) insisted that, to avoid ethical difficulties, the members of the cluster groups, and especially the heads of issue working groups, must be full government employees. Consultants brought in from the outside could work for these working groups, but should not be “members” or “heads” of any such groups. This endangers the roles we have set for Walter, Paul, and others.
I pressed him further, and he said it was not clearly in violation of any law, but he felt that it would give antagonists leverage for attacking it in the press and possibly legal channels.
I recommend that you speak to him about their appropriate role. I believe this can be resolved, because it seems to me a matter of only perception.
On March 3, 1993, Magaziner told the AAPS in federal court that only federal employees were members of the working groups. A year later, the Department of Justice would argue that this was literally true — “members” had to be federal employees. Anyone who was not a federal employee was therefore not a “member.” Those who were private outsiders were only “participants.” “Participants” only participated. “Members” participated as full “members.” If the Washington Press Corps was understandably dizzy, Judge Lamberth was not amused. In referring Magaziner for criminal investigation to the Department of Justice (the same Department of Justice which had been representing Magaziner in the AAPS case and helped prepare his affidavits), the irritated judge said:
On March 13, 1993, Mr. Magaziner signed a declaration, under penalty of perjury, in which he stated that “[o]nly federal government employees serve as members of the interdepartmental working group.” He stated that these employees were either full-time permanent federal employees — of which there were approximately 300 — or “special government employees” serving for less that 130 days, with or without compensation — of which there were approximately 40. Mr. Magaziner did not, however, specify in the declaration how he defined “members” of the interdepartmental working group.
We now know, from the records produced in this litigation, that numerous individuals who were never federal employees did much more than just attend working group meetings on an intermittent basis, and we now know that some of these individuals even had supervisory or decision-making roles. The extent to which these individuals were subjected to conflict-of-interest scrutiny is also questionable.
Six months later, the U.S. Attorney found no falsity and no reason to prosecute.
Eighteen months before, the President had declared that Federal Advisory Committees were too expensive and extensive. So he issued an Executive Order under which the Office of Management and Budget was instructed to reduce the number of Federal Advisory Committees by one-third. This was an easy task, of course. Most of the Clinton Advisory Committees were not designated as such and therefore, by simple political parlor trick, the reduction could take place semantically. Substantively, the Health Care Task Force cost more than all the Advisory Committees of the government combined. The Clinton Department of Justice simply ignored the Federal Advisory Committee Act and attempted to litigate the fact-seekers into financial and appellate oblivion.
For example in Alabama Tombigbee v. U.S. Fish and Wildlife, 26 F.3d 1103 (11th Circuit 1994) the Clinton government ignored the FACA to study the Alabama Sturgeon, misled the plaintiffs, litigated past the expiration of the illegal FACA, attempted to “moot” the case, and then requested the Court to pardon the violation, by the now standard and familiar “excuse us” plea. What is disturbing is that Alabama Tombigbee was litigated by the same division of the Department of Justice and by some of the same lawyers from DOJ at the same time as the AAPS case.
Similarly, in Northwest Forest v. Espy, F. Supp. 1009 (D.D.C. 1994) some 600-700 individuals, some of whom even the Administration conceded were non-federal, through the now paradigm working group process, assisted President Clinton and the Vice President with their “Forest Plan” and the Spotted Owl. The White House vigorously fought the application of the FACA and then attempted to “moot” the case by making the documents available to the public after the working groups had finished their work and the Administration had successfully side-stepped FACA. The Court nevertheless entered a Declaratory Judgment but declined to issue an injunction.
In all three major Clinton FACA cases (there are more), the plaintiffs were faced with enormous resources and a federal war of attrition. After the intentional violation of FACA, in each case clearly ridiculous semantical arguments were mustered to delay judgment until the Administration had achieved its advisory goals. In each case, the Department of Justice accused the plaintiffs of attempting to “put the genie back into the bottle.” In each case, the documents were released after they were of little contemporary use. In each case, the Clintons attempted to moot the case. In each case, the plaintiffs were left with a Pyrrhic victory and an institutional “excuse us.” Meanwhile, the Administration achieved its illegal advisory process.
That the Clinton Administration is infected with a culture of deceit is, perhaps, self-evident. There are three active Independent Counsels and two Congressional Committees investigating it. Whitewater demonstrates this is a historical pattern from Arkansas grounded in an arrogance of power and self-righteousness that the ends justify whatever process it takes to get “the job done.” When the President says repeatedly that “we can do better,” one wonders what he really means. When the Health Care Task Force needed more inexpensive and efficient travel under secret conditions, Mrs. Clinton turned to Harry Thomasson, a Hollywood campaign crony. For many reasons which have not yet surfaced, Mrs. Clinton conceived in February of 1993 the firing of all the career employees of the White House Travel Office. The FBI and the IRS were called in to provide political cover for the firings and chase these citizens out, stain their reputations, and ruin their lives. The head of the Office was indicted for embezzlement, even though no money was missing and no public funds were involved. Interestingly, this was prosecuted by the very same Office which declared at about the same time as the Travelgate trial, that Ira Magaziner had not lied repeatedly in his sworn declarations to Federal Judge Lamberth. Mrs. Clinton denied that she had “ordered” the firings of the Travel Office (which she said could not do since she did not hold an “office” in the federal government). In the AAPS case, she successfully argued she was an “officer” of the United States and therefore, exempt from FACA. Of course, we now know there was no embezzlement in the travel office, as the jury determined in under two hours. We do know Mrs. Clinton made it abundantly clear there would be “hell to pay” if the Thomassons did not take over the Travel Office. And, we do know the Vince Foster Whitewater file, which disappeared from his office within hours of his death, mysteriously appeared two years later, in the residential section of the White House. No one knows how it got there. The delay was punctuated by feigned confusion and the now familiar “excuse us.”
We do not know the comments, thoughts, and processes on health care of Mrs. Clinton. No memorandum, report, letter, or document was ever found in the hundreds of boxes of documents finally released by the Clinton White House — only after the Health Security Act had died a very unnatural death. According to the Department of Justice, there were none.
AAPS could have settled the matter eighteen months ago with the Department of Justice on financially (however secret) favorable terms. The judge recommended it. But what of the culture of deceit? AAPS had the courage to move the Court for sanctions against the Department of Justice, the White House, and Hillary Clinton. It is an unprecedented action by ordinary citizens with extraordinary principles in an unprecedented case. AAPS made the following argument for its action:
Our adversary system for the resolution of disputes rests on the unshakable foundation that truth is the object of the system’s process which is designed for the purpose of dispensing justice. However, because no one has an exclusive insight into truth, the process depends on the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions—all directed with unwavering effort to what, in good faith, is believed to be untrue on matters material to the disposition. Even the slightest accommodation of deceit or a lack of candor in any material respect quickly erodes that validity of the process. As soon as the process falters in that respect, the people are then justified in abandoning support for the system in favor of one where honesty is preeminent.
While no one would want to disagree with generalities about the obvious, it is important to reaffirm, on a general basis, the principle that lawyers, who serve as officers of the court, have the first line task of assuring the integrity of the process. Each lawyer undoubtedly has an important duty of confidentiality to his client and must surely advocate his client's position vigorously, but only if it is truth which the client seeks to advance. The system can provide no harbor for clever devices to divert the search, mislead opposing counsel or the court, or cover up that which is necessary for justice in the end. It is without note, therefore, that we recognize that the lawyer's duties to maintain the confidences of a client and advocate vigorously are trumped ultimately by a duty to guard against the corruption that justice will be dispensed on an act of deceit. (Brief of AAPS filed December 1995).
One can only now wonder in our system in these times, to whom the Department of Justice owes the higher duty. Is it to serve the political ends of its client, the President? Or does it have a greater duty to advance the interests of its client, the public?
All we know for certain is that this case proves that honest people, principled in their convictions, can overcome even the most powerful in our society and do good for the public. The art of medicine can treat many ills, in many forms. Eternal vigilance is the antidote to the culture of deceit. We await Judge Lamberth’s decision.
Mr. Spencer is the president and a partner in the law firm of Spencer & Klein, P.A., in Miami, Florida. His address is 801 Brickell Avenue, Suite 1901, Miami, FL 33131.
Originally published in the Medical Sentinel 1996;1(1):6-8. Copyright©1996 Association of American Physicians and Surgeons (AAPS)