- The Washington Times - Thursday, October 12, 2000

Independent counsel Robert W. Ray's office yesterday challenged as "inaccurate" the testimony of a former White House lawyer who said no effort was made to hide subpoenaed documents from a federal grand jury and Congress.

In a letter to U.S. District Judge Royce C. Lamberth, the office took the unusual step of intervening in a case to which it was not a party.

Deputy independent counsel Jay Apperson described the sworn testimony of Michelle Peterson in the "Filegate" suit as "contrary" to the evidence on the White House's response to subpoenas in the Monica Lewinsky investigation.

In fact, Mr. Apperson said Miss Peterson was herself a party to such tactics.

"This office is aware that this testimony is contrary to the practice of that office during the time period in which Miss Peterson was associate counsel," he said. "Miss Peterson should reasonably be aware of this fact in that she personally participated in such contrary practice."

In the Oct. 5 letter, made public yesterday, Mr. Apperson said he had "an obligation to assure that inaccurate testimony is corrected, and assure that counsel fulfill their professional obligation to assure such correction."

Mr. Apperson urged Judge Lamberth to take "appropriate action" in the case, saying Miss Peterson "made no effort to disclose" a memo belatedly found in the Lewinsky probe, "delayed production of the document for over a week following its discovery" and then put it among 970 pages of other documents sent to prosecutors in a separate case.

That memo described how White House aides were worried that Miss Lewinsky had been engaged in "extracurricular activities" inside the White House before she was moved to the Pentagon. It eventually became a key piece of evidence in impeachment proceedings against President Clinton.

Mr. Apperson told the judge it was routine for the White House to "covertly transmit" belatedly discovered documents without calling attention to them, noting a 1998 letter from White House Special Counsel Lanny Breuer saying the White House routinely sent newly discovered documents to prosecutors without clearly stating their relevance.

White House spokesman Elliot Diringer described the Apperson letter as an attempt to "rehash in a new form an old dispute between the Office of Independent Counsel and the White House Counsel's Office." He said the matter already had been addressed and resolved.

"The counsel's office has acted in good faith in dealing with document requests in the various independent counsel investigations," he said. "We believe Miss Peterson's testimony was truthful and accurate."

The pending $90 million Filegate lawsuit was brought by Judicial Watch, a conservative public-interest law firm, which claims the release of secret FBI files to the White House on former Reagan and Bush administration officials violated the federal Privacy Act.

The firm's general counsel, Larry Klayman, yesterday said he "applauds the diligence" of the independent counsel's office "in bringing these serious matters to the attention of the court."

In August, Miss Peterson testified under oath in the Filegate case that the White House policy was to turn over documents subpoenaed by the independent counsel's office and several committees as quickly as possible and, when additional records were found, to make them available and offer full explanations why they had not been produced earlier.

She said, "It was certainly my practice and it was certainly the policy and the practice of [White House Counsel Charles F.C.] Ruff, who headed the office, as soon as anything was found that had not been produced, we were required to immediately produce it."

Last year, however, Sheryl L. Hall, former White House computer specialist who first made public the fact that thousands of subpoenaed White House e-mail messages had not been turned over, said Miss Peterson told her the White House was trying to "stall" the Filegate suit until after Mr. Clinton left office.

She said Miss Peterson told her the decision was part of a "continuing campaign by the White House to delay and impede" various investigations.

Miss Peterson vigorously denied the accusations and the White House called them "baseless."

In an earlier development in the Filegate suit, Miss Peterson told Judge Lamberth last week that she was "mistaken" when she claimed that White House e-mail she searched while looking for thousands of missing messages were duplicates of what already had been given to Mr. Ray's office.

She said records she checked in June 1998 after the missing e-mail problem was discovered were not duplicates of e-mail messages turned over to the independent counsel, contrary to her prior claims.

The White House used statements by Miss Peterson that a manual search of the missing e-mail files had produced duplicates as proof that the administration had not sought to avoid turning over the documents.

Miss Peterson also confirmed that concerns involving her role in the e-mail matter surfaced during questioning before a federal grand jury, acknowledging that evidence, including a "test" batch of e-mail messages from June 1998, was presented as a challenge to her original explanation.

"During the course of my testimony to the grand jury, it appeared from the documents shown to me that I may have been mistaken," she said.

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