of the Executive Branch; and all related ethics laws and regulations."
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.
The question for criminal contempt purposes, however, is what Mr. Magaziner knew at the time he signed his sworn declaration on March 3, 1993. He must be proven to have been intentionally untruthful at the time he signed the document before he can be found guilty of a criminal offense. The defendants, and/or their counsel, may have engaged in sanctionable conduct later when they did not promptly correct the court filing, but the court must decide criminal contempt based on Mr. Magaziner's knowledge on March 3, 1993.
At the oral argument on July 25, 1994, on the cross-motions for summary judgment and on plaintiffs' motion to require Mr. Magaziner to show cause why he should not be held in contempt of court, the court denied summary judgment and reserved ruling on the contempt question. The court noted at that time that "serious" and "troubling" issues were raised by plaintiffs but that further development of the facts was needed before the court could determine the contempt question. Now that this case is moot, however, there will be no trial, and there will be no further development of the facts in this action about what Mr. Magaziner knew and when he knew it. Accordingly, the court has determined that the question must be referred to the United States Attorney for the District of Columbia, for further development of the facts in order to determine whether a criminal offense has been committed.
The record herein does not reflect whether Mr. Magaziner is a "covered person" within the statute authorizing appointment of an Independent Counsel, 28 U.S.C. § 591, et seq., but in any event the initial inquiry whether to seek appointment of an Independent Counsel would be the responsibility of the Attorney General.
Plaintiffs allege that an examination of the Secret Service records of entries into the Old Executive Office Building -- entries of people who were cleared in by Mr. Magaziner or his immediate staff -- demonstrates that many of these individuals (who were not federal employees and who were active working group participants) were entering the White House complex well before Mr. Magaziner signed his March 3 declaration. Moreover, plaintiffs allege that members of Mr. Magaziner's own private consulting firm and its successor company were participants in the working groups whom he certainly should have known about, and that those individuals never became either full-time government employees or special government employees. Plaintiffs allege that numerous representatives of special interests were active participants in the working group process, and that Mr. Magaziner concealed this information in his March 3 declaration. The interdepartmental working group reported to Mr. Magaziner, not to the President or the First Lady. Mr. Magaziner wrote the Work Plan, and the number of participants grew from a list of 215 in early February to a list of 340 by the time of Mr. Magaziner's sworn declaration on March 3. Although the defendants now make much of the "fluidity" of this process, none of that "fluidity" is included in Mr. Magaziner's March 3 declaration. The defendants' later position, that "membership" on the interdepartmental working group is impossible to determine, simply demonstrates how misleading, at best, Mr. Magaziner's March 3 declaration actually was.
The court agrees with defendants that criminal contempt is a grave matter. The court also agrees that it must be based, here, on evidence of deliberate and willful misrepresentations. Defendants urge the court to find that Mr. Magaziner had no such intent. The court cannot do so at this time; the record is simply insufficient as to what Mr. Magaziner knew and when he knew it.
Accordingly, because this action is now moot and a further record cannot be developed herein, this matter is referred to the United States Attorney for appropriate consideration. The Clerk of Court shall send a copy of this Memorandum and Order to the United States Attorney for the District of Columbia and to the Attorney General of the United States.
A status conference shall be held on January 9, 1995, at 9:30 a.m. to schedule consideration of plaintiffs' collateral requests for other sanctions and attorneys' fees and costs.
Royce C. Lamberth
United States District Judge