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February 21, 1995

JUDICIAL WATCH, INC., et al., Plaintiffs,
HILLARY RODHAM CLINTON, et al., Defendants.

The opinion of the court was delivered by: ROYCE C. LAMBERTH

 President and Mrs. Clinton established the Presidential Legal Expense Trust to help defray their personal legal expenses. Plaintiffs allege in Count 1 that the Trust is subject to, and has violated, the Federal Advisory Committee Act. Plaintiffs allege in Count 2 that the Office of Government Ethics improperly responded to their request under the Freedom of Information Act for documents pertaining to the Trust.

 Each of the defendants has moved for dismissal or for summary judgment. *fn1" Upon consideration of the filings and oral arguments of counsel, the relevant law, and for the reasons more fully set forth below: Motions to dismiss by defendants Clinton, Mikva, Berman, the Trust and its trustees are hereby GRANTED. The motion for summary judgment by defendant Potts is hereby GRANTED.


 Plaintiffs Judicial Watch, Inc. and National Legal & Policy Center are non-profit corporations under the laws of the District of Columbia. Their mission includes, among other things, preventing and correcting abuses of public trust by government officials.

 Defendant Hillary Rodham Clinton ("Mrs. Clinton") is the wife of the President of the United States, William Jefferson Clinton ("the President"). Mrs. Clinton advises the President on official and other matters.

 Defendants the Presidential Legal Expense Trust ("the Trust") was established for the purpose of accepting contributions from the general public to pay legal expenses incurred by President and Mrs. Clinton. These expenses arise out of various lawsuits and legal proceedings commenced after the President assumed office but not directly related to his official duties. The Trust accepts contributions up to $ 1,000 from U.S. citizens other than Federal employees; corporations and unions may not contribute, although lobbyists may. *fn2" Donations are not tax-deductible. Anonymous contributions are not accepted; names of contributors must be disclosed at least semi-annually. The President and Mrs. Clinton are the sole beneficiaries of Trust funds.

 Trustees of the Trust are also defendants. They include Rev. Theodore M. Hesburgh, Nicholas de B. Katzenbach, John Brademas, Barbara Jordan, Ronald Olson, Elliot Richardson, Michael Sovern, John Whitehead and Michael Cardozo. Defendant Cardozo serves as Executive Director of the Trust.

 Defendant Lloyd N. Cutler was Special White House Counsel to the President. On October 1, 1994, Judge Abner J. Mikva assumed the duties of White House Counsel and was properly substituted as defendant for Mr. Cutler pursuant to Fed. R. Civ. P. 25(d). Plaintiffs, however, contend that Mr. Cutler was sued in both his individual and official capacities, and should therefore remain as an individual defendant.

 Defendant Michael Berman is an associate at Duberstein Group in Washington, D.C. He is active in Democratic party politics and, according to plaintiffs, advises the President and Mrs. Clinton and others in the executive branch.

 Defendant Stephen D. Potts is Director of the U.S. Office of Government Ethics ("OGE"). OGE is the governmental entity charged in part with enforcing the restrictions imposed by 5 U.S.C. § 7353 which governs gifts to federal employees. OGE has both investigatory and remedial powers when it appears that Section 7353 has been violated.


 On or about June 28, 1994, the President and Mrs. Clinton established the Trust to help defray their legal expenses. Plaintiffs claim that the Trust, its trustees, and those acting in concert with the trustees, including defendants Mikva and Berman who are allegedly de facto trustees, advise the President and Mrs. Clinton and others in the executive branch on matters involving their official duties. Thus, say the plaintiffs in Count 1, the Trust is an advisory committee as defined in the Federal Advisory Committee Act, 5 U.S.C. App. 2 ("FACA"). Specifically, the trustees and other defendants advise the President on: (a) the legality of soliciting and accepting funds; (b) methods and procedures for soliciting and accepting funds; (c) methods and procedures of distributing and applying funds; and (d) winding up of the Trust and distribution of remaining funds. *fn3"

 Plaintiffs contend that the Trust has not satisfied the requirements for advisory committees under FACA. In particular, the Trust has not filed a charter setting forth its official designation, objectives, scope, time frame, authority, lines of responsibility, reporting structure, support, operating costs, and estimated manhours. Nor has the Trust allowed for input from interested persons, complied with the Freedom of Information Act (5 U.S.C. § 552 et seq.) ("FOIA"), nor published notice of trustees' meetings in the Federal Register. 5 U.S.C. App. 2 §§ 9-10.

 Notwithstanding repeated efforts to secure defendants' compliance with FACA, FOIA and other laws and regulations, plaintiffs contend they have been frustrated and unable to carry out their objective to prevent abuse of public trust by government officials.

 The court's analysis of whether public trust has been abused will necessarily be constricted. Count 1 of this case is a matter of first impression. To the court's knowledge, there have been no other funds established by a sitting president to offset his personal legal fees and costs. Clearly, there are major public policy, legal and ethical questions presented here; see, e.g., note 3, supra. However, only a narrow subset of these questions will be resolved in this lawsuit. Specifically, the court in this case will address whether the Trust is subject to FACA; the court does not address the wisdom, ethical implications, or other legal issues attendant to creation and operation of the trust.

 Count 2 of the complaint concerns FOIA and OGE. Larry Klayman, officer and general counsel of plaintiff Judicial Watch, filed FOIA requests in July 1994 seeking from OGE, inter alia, all documents or tangible items concerning the Trust. He also sought a Vaughn Index or other required means of identifying any withheld documents or redacted portions. See Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). Klayman asserts that he has assigned all rights in these requests to Judicial Watch. OGE granted the requests in part and denied them in part. However, no Vaughn Index was provided. With respect to material not provided, OGE invoked an exemption from disclosure pursuant to 5 U.S.C. § 552(b)(5). OGE also declined to disclose documents that it did not consider to be "agency records."

 OGE responded to Klayman's FOIA requests on July 21, 1994, several days before the end of the statutory period in which the agency had to respond. The next day, on July 22, OGE issued a written opinion on the legality of the Trust; the opinion was not included among the materials provided to Klayman on July 21. Judicial Watch has since obtained a copy of the opinion (which indicated that the Trust would not be inconsistent with applicable ethical principles governing executive branch employees). Nonetheless, in light of what it perceives as gamesmanship by OGE, plaintiffs infer that other documents were improperly withheld. Plaintiffs maintain that OGE and its director, Stephen Potts, are acting in concert with the other defendants in violation of FACA and other enumerated laws and regulations. Judicial Watch filed an administrative appeal of the partial response to Klayman's FOIA requests, but the appeal was denied on August 5, 1994.

 In Count 1 of the Amended Complaint, for violations of FACA and FOIA by the Trust, plaintiffs seek to enjoin defendants from further solicitation or acceptance of funds, and from advising the President and Mrs. Clinton while the Trust continues to violate FACA. Plaintiffs seek, in addition, a writ of mandamus compelling defendants to comply with FACA, an order directing the Trust to return those funds already received, an order requiring the Trust to comply with all of plaintiffs' FOIA requests, and an award of attorneys' fees and costs. In Count 2 of the Amended Complaint, for violation of FOIA by both OGE and the Trust, plaintiffs seek an order requiring OGE and the Trust to comply with all of plaintiffs' FOIA requests, and an award of attorneys' fees and costs.

 Defendants advance the following arguments: First, the Amended Complaint does not state a claim under FACA because the Trust, an operational body which does not render governmental policy advice to the President, is not an "advisory committee" within the contemplation of FACA, nor therefore is it subject to FOIA. To the contrary, the Trust is a private entity established by the President and Mrs. Clinton for personal reasons unconnected to their official duties. Second, the proper defendant in a FACA suit is the government entity that established or utilized the alleged advisory committee. Neither the Trust, the trustees, Mrs. Clinton, nor defendants Cutler, Mikva, Berman and Potts qualify as proper defendants. Third, OGE responded in a timely and appropriate manner to plaintiffs' FOIA requests. Any documents not provided to the plaintiffs were either not "agency records," or the documents were exempt under FOIA's deliberative process privilege (5 U.S.C. § 552(b)(5)). *fn4"

 The court agrees with defendants that the Trust is not an advisory committee, and is thus not subject to FACA or FOIA. Because this finding is dispositive with respect to Count 1, the court need not reach whether plaintiffs sued the proper defendants under FACA. Further, the court holds that defendant Potts is entitled to summary judgment as a matter of law on Count 2. There is no basis upon which to conclude that OGE responded improperly to plaintiffs' FOIA requests.


 In evaluating Potts' motion (Count 2), the court has considered evidence outside of the complaint; accordingly, his motion will be treated as one for summary judgment rather than a motion to dismiss. See Fed. R. Civ. P. 12(b). Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the plaintiff. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). But if the plaintiff "fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial," summary judgment may be granted. Celotex, 477 U.S. at 322.

 Motions by the remaining defendants are for dismissal under Rules 12(b)(1) and (6). Plaintiffs' factual allegations must be presumed true and liberally construed in favor of the plaintiffs when reviewing the adequacy of a complaint for purposes of a Rule 12(b) motion. Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 968 (D.C. Cir. 1979) (citing Miree v. Dekalb County, Georgia, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977)). In addition, the plaintiffs must be given every favorable inference that may be drawn from their allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." 2A Moore's Federal Practice, § 12.07, at 63 (2d ed. 1986) (footnote omitted); see Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1254 (D.C. Cir. 1987) (citing Pauling v. McElroy, 107 U.S. App. D.C. 372, 278 F.2d 252, 254 (D.C. Cir.), cert. denied, 364 U.S. 835, ...

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