IN THE DISTRICT COURT OF THE DISTRICT OF COLUMBIA - - - - - - - - - - - - - - -x : JUDICIAL WATCH, INC. : : Plaintiff, : : v. : Civil Action No. : 95-0133 U.S. DEPARTMENT OF COMMERCE, : : Defendant. : : - - - - - - - - - - - - - - -x Washington, D.C. Wednesday, May 5, 1999 Deposition of JEFFREY E. GARTEN a witness of lawful age, taken on behalf of the Plaintiff in the above-entitled action, before Rita M. Hemphill, Notary Public in and for the District of Columbia, in the Chambers of Magistrate Judge John M. Facciola, U.S. District Court, 3rd and Constitution, N.W., Washington, D.C. commencing at 10:11 a.m. 2 APPEARANCES: On Behalf of the Plaintiff: LARRY KLAYMAN, ESQ. Chairman and General Counsel Judicial Watch, Inc. 501 School Street, S.W., Suite 725 Washington, D.C. 20024 On Behalf of the Defendant: MARINA UTGOFF BRASWELL, ESQ. Assistant United States Attorney U.S. Attorney's Office 555 Fourth Street, N.W. 12th Floor Washington, D.C. 20001 ELISE PACKARD, ESQ. U.S. Department of Commerce 14th Street and Constitution Avenue, N.W. Washington, D.C. 20230 On Behalf of the Deponent: ROGER M. WITTEN, ESQ. Wilmer, Cutler & Pickering 2445 M Street, N.W. Washington, D.C. 20037-1420 Also present: Thomas Fitton, President, Judicial Watch Jason Aldrich, Esq., Judicial Watch 3 C O N T E N T S EXAMINATION BY: PAGE Counsel for Plaintiff 5 GARTEN DEPOSITION EXHIBITS: No. 1 Notice of Deposition 6 No. 2 United States Government Official Delegation, Under Secretarial trip to Singapore, Indonesia, China, Hong Kong, Tokyo and Seattle 125 No. 3 Memoranda re Follow-up for U/S Garten's Trip 155 4 1 P R O C E E D I N G S 2 THE VIDEOGRAPHER: Good morning. This is the 3 video deposition of Jeffrey Garten taken by the counsel 4 for the Plaintiff in the matter of Judicial Watch, Inc. v. 5 U.S. Department of Commerce held in the U.S. District Court 6 for the District of Columbia, Case No. 95-0133, held in the 7 chambers of Judge John Facciola at the U.S. District Court 8 for the District of Columbia, on this date, May 5, 1999, and 9 at the time indicated on the video screen, which is 10 10:11 a.m. 11 My name is Sylvanus Holley. I am the videographer. 12 The court reporter today is Rita Hemphill from the firm of 13 Diversified Reporting. 14 Will counsel now introduce themselves? 15 MR. KLAYMAN: Larry Klayman, Chairman and General 16 Counsel of Judicial Watch, and sitting at my left although 17 not present now is Tom Fitton, President, Judicial Watch, and 18 an attorney who is helping me and Mr. Fitton bring boxes into 19 the room is Jason Aldrich. He is also present. 20 MR. WITTEN: I am Roger Witten. I am with Wilmer, 21 Cutler & Pickering and I represent the witness 22 MS. BRASWELL: Marina Braswell from the 23 U.S. Attorney's office and I represent the Department of 24 Commerce. 25 MS. PACKARD: Elise Packard, Office of General 5 1 Counsel, Department of Commerce. 2 THE VIDEOGRAPHER: Would the court reporter please 3 swear in the witness? 4 Whereupon, 5 JEFFREY E. GARTEN 6 was called as a witness and, after having been duly sworn, 7 was examined and testified as follows: 8 EXAMINATION BY COUNSEL FOR PLAINTIFF 9 BY MR. KLAYMAN: 10 Q Please state your name. 11 A Jeffrey E. Garten. 12 Q When were you born? 13 A October 29, 1946. 14 MR. WITTEN: Mr. Klayman, I wanted to make a brief 15 statement before you got going with the substance. 16 I wrote a letter to one of your colleagues in 17 response to the subpoena duces tecum which stated that 18 Mr. Garten had no documents responsive to the subpoena. 19 We have discussed this morning before the 20 deposition the fact that Mr. Garten has copies of ten or so 21 public speeches that he gave while an official of the 22 Department of Commerce. These are publicly available, 23 they're on the web. You may very well have them. And it 24 just didn't occur to him as he was considering the subpoena 25 that these might be covered. 6 1 We don't have them with us, but I'd be glad to 2 supply them to you if you don't already have them. Maybe you 3 could tell us whether you do. 4 MR. KLAYMAN: We don't have them and if it's not 5 too much trouble I would ask that you provide them. 6 MR. WITTEN: We'd be glad to. 7 MR. KLAYMAN: Let me ask that we mark as Exhibit 1 8 a copy of your notice of deposition duces tecum, along with 9 the subpoena and a document request which is called the duces 10 tecum Appendix A. 11 (Garten Deposition Exhibit No. 1 12 was marked for identification.) 13 BY MR. KLAYMAN: 14 Q I'm showing you this notice of deposition and 15 subpoena, Mr. Garten. Have you seen this before? 16 A Yes. 17 Q When did you see it? 18 A I don't remember the exact day. 19 Q Roughly speaking. 20 A I think it was in the last two months. 21 Q About two months ago? 22 A No. Some time in the last two months. 23 Q Have you actually seen a physical copy of this? 24 A Yes. 25 Q And did you have an opportunity to review the 7 1 documents that were requested? 2 A Yes. 3 Q And did you search for the documents that were 4 requested on Appendix A? 5 A There wasn't a requirement for a search in the 6 sense that I didn't have any documents that I considered to 7 be documents. 8 Q So you didn't do a search. 9 A I didn't have any documents. 10 Q Well, my question is you didn't do a search. 11 A There was no reason to do a search since I didn't 12 have any documents. 13 Q So the answer is no, you didn't do a search. 14 MS. BRASWELL: Objection. 15 JUDGE FACCIOLA: I think it's asked and answered. 16 He's explained that he didn't do a search because he had 17 nothing to search through. 18 Is that right, Mr. Garten? 19 THE WITNESS: Yes. 20 BY MR. KLAYMAN: 21 Q When you left the Department of Commerce, did you 22 take any documents with you? 23 A No. 24 Q Not one document? 25 A Nothing I considered to be a document. I had 8 1 copies of some speeches that I gave which were in the public 2 domain. 3 Q Had you removed any documents before you left the 4 Department of Commerce, during the time that you worked 5 there? 6 A No. 7 Q And when I use the word documents, I'm talking not 8 just about pieces of paper but computer diskettes, any kind 9 of recordations of communications or statements of any kind. 10 A I left with absolutely nothing except a few 11 speeches and a copy of my security clearance. 12 Q Did you use a laptop computer during the time you 13 were at the Commerce Department? 14 A No. 15 Q Did you use a computer at home? 16 A I had a computer at home, but I never used it for 17 anything official. 18 Q How did you define official? 19 A I only used the computer to write personal letters, 20 that kind of thing, during the time I was at the Commerce 21 Department. 22 Q Did you ever write letters to business executives 23 that went on trade missions? 24 A Never. 25 Q Did you ever write anything to them, any kind of 9 1 communication, e-mail or otherwise? 2 A Nothing. I never used a computer in conjunction 3 with anything official while I was at the Commerce 4 Department. Even in the Commerce Department. 5 Q Did you ever send e-mail from the Commerce 6 Department? 7 A No. 8 Q Did you speak on the telephone from time to time 9 with individuals concerning the trade missions to various 10 countries? 11 A I'm sure there were times when I did, yes. 12 Q Did you ever record any of those conversations? 13 A No. 14 Q Did you ever make notes of any of those 15 conversations? 16 A To the best of my ability to recall, no. 17 Q Did you ever send facsimiles in any manner related 18 to the trade missions? 19 A I may have. I just don't recall. 20 Q You sent facsimiles from time to time to the White 21 House about those trade missions? 22 A Again, I don't recall, but it's possible. 23 Q To the Democratic National Committee? 24 A Seems entirely remote to me, since I had no 25 connection with the Democratic National Committee. 10 1 Q And do you mean you had no connection with it? 2 A I mean I had no dealings with them at all. 3 Q You never talked to them once during the period 4 that you were at the Department of Commerce? 5 A To the best of my recollection, never once. 6 Q Well, you say best of your recollection. Do you 7 mean no or you're not sure? 8 MR. WITTEN: I object to the form of the question. 9 That's an obvious answer. 10 MR. KLAYMAN: It's not obvious. Please don't 11 interrupt. 12 JUDGE FACCIOLA: As best you can, answer that 13 question, Mr. Garten. 14 THE WITNESS: To the best of my knowledge, I had no 15 dealings with anybody on the Democratic National Committee at 16 any time. What I can't be 100 percent certain of is that 17 there could have been a meeting and maybe somebody was there 18 and I talked to them, but I never consciously knew that they 19 were from the Democratic National Committee. 20 BY MR. KLAYMAN: 21 Q What caused you to take copies of your speeches but 22 not copies of other documents from the Commerce Department? 23 What was the distinction? If any. 24 A The speeches I considered to be very public 25 documents and the kind of speeches that I gave were very, 11 1 very substantive about American policy and I was proud of 2 them and I wanted to keep it as my own personal record of 3 what I did and what I thought and what I thought was a 4 contribution to public policy. 5 Q During the time that you were at the Commerce 6 Department, I believe you previously testified to 7 congressional committees you had concerns about John Huang 8 being involved in matters related to China, correct? 9 A Correct. 10 Q And you wrote certain letters and memoranda to that 11 effect to people inside the Commerce Department, correct? 12 A Correct. 13 Q Did you keep copies of those letters just for your 14 own protection? 15 A No. 16 Q Do you know where those letters and memoranda are 17 today? 18 A No. 19 Q When you left the Commerce Department, did you seek 20 clearance for the documents which you did take, the speeches? 21 A No. 22 Q Did you tell anyone you were taking the speeches? 23 A No one other than the people in my office who 24 helped me to put them together. 25 Q And who are they? 12 1 A It would have been some secretaries. 2 Q And what are their names? 3 A I can't remember. 4 Q Who was your principal secretary? 5 A I can only remember her first name now, Ingrid. 6 Q Ingrid? Can you remember the first names of any 7 others? 8 A No. 9 Q Who were the people that you worked with in your 10 immediate office? 11 A There wouldn't have been any. 12 Q Okay. Well, maybe -- I'm expanding it beyond 13 secretaries. Who were people that you worked with in your 14 office suite, if you can name them, please? 15 A Well, the principal two people -- they weren't in 16 my office as such, but my principal two deputies were Tim 17 Howser, whose title was Deputy Under Secretary, and David 18 Rothkopf, who had the same title. 19 Q And what was that suite number? 20 A I don't remember. 21 Q What part of the Commerce Department, generally 22 speaking? Was it located within ITA? 23 A Yes. 24 Q What floor? 25 A I'm not sure. 13 1 Q Was it near somebody else's office, such as 2 Secretary Brown? 3 A No. His office was several floors away. 4 Q You are aware that when Mr. Rothkopf left the 5 department he took numerous documents with him, correct? 6 A I am not aware. 7 Q Have you learned of that from any source? 8 A No. 9 Q Do you know whether or not he took boxes of 10 documents with him when he went to work for Kissinger 11 Associates? 12 A No. 13 Q Let's back up. Where did you go to high school? 14 A I went to Phillips Academy, Andover, Massachusetts. 15 Q And when did you graduate? 16 A '64. 1964. 17 Q And where were you born? 18 A New York City. 19 Q And what did you do after Andover, after Phillips 20 Academy? 21 A I went to Dartmouth. 22 Q And when did you graduate? 23 A '68. 24 Q Did you major in anything in particular? 25 A It was a combination of economics and politics. 14 1 Q And what did you do at that time in 1968? 2 A I went into the military. 3 Q Which branch of the military? 4 A Army. 5 Q And what did you do there? 6 A I was in the 82nd Airborne Division and the U.S. 7 Special Forces. 8 Q You served in Vietnam? 9 A Yes. 10 Q And how long did you stay in the military? 11 A Four years. 12 Q You got an honorable discharge? 13 A Yes. 14 Q And what did you do when you got out? 15 A I went to graduate school. 16 Q And what year was that? 17 A Late '71. 18 Q And that was Johns Hopkins? 19 A Yes. 20 Q Here in Washington, D.C.? 21 A Yes. 22 Q Johns Hopkins School of Advanced International 23 Studies? 24 A Yes. 25 Q And you got your Master's degree in what year? 15 1 A '73. 2 Q And what did you do at that time? 3 A I went into the Nixon administration. 4 Q What did you specialize in at Johns Hopkins? 5 A Economics and American foreign policy. 6 Q And up to that point in time, you didn't have any 7 real specialty in China, did you? 8 A No. 9 Q And what position did you take in the Nixon 10 administration? 11 A I was a staff member of what was called the 12 White House Council on International Economic Policy. 13 Q And that was a political appointment? 14 A I don't know how you would define it. I was not in 15 the Civil Service. 16 Q Did someone recommend you for that job? 17 A No. 18 Q How did you get it? 19 A I volunteered my services immediately on graduation 20 to do some research on a pro bono basis and they liked it and 21 they offered me a job. 22 Q And what were your duties and responsibilities in 23 this job? 24 MR. WITTEN: Objection. Scope. 25 JUDGE FACCIOLA: Overruled. Mr. Klayman, I'm sure, 16 1 will move along. 2 MR. KLAYMAN: This is very relevant, Your Honor. 3 JUDGE FACCIOLA: Let's go. 4 THE WITNESS: I was focusing on international 5 trade, international investment, all kinds of 6 international -- sort of problems with an economic scope. 7 BY MR. KLAYMAN: 8 Q What area in particular of the world were you 9 focused on primarily? 10 A It was every area. It was no particular one. 11 Q Did you work with a supervisor? 12 A I wouldn't use the word supervisor, but I reported 13 to the -- I think the person who would have been called the 14 deputy director of the council. 15 Q And who was that? 16 A It was a fellow named Jonathan Rose. 17 Q And how long did you stay in that job? 18 A Approximately a year and a half. 19 Q And what happened then? 20 A I moved to the State Department to join Secretary 21 Kissinger's staff. 22 Q And what position did you get there? 23 A I was a staff member of the policy planning staff. 24 Q A political appointment? 25 A Again, I don't want to use that term, only because 17 1 there was no confirmation or anything, but I was not in the 2 foreign service or the Civil Service. I think they called it 3 Schedule C. Something that was not Civil Service. I don't 4 know the technicalities. 5 Q Did you work directly with Secretary Kissinger? 6 A Yes. 7 Q What principal areas of the world were you focused 8 on? 9 A It was a job very similar to the other job I 10 described. I got involved in lots of areas. I was not 11 considered to be a regional expert, but I was developing a 12 lot of expertise in international trade and international 13 finance. 14 Q Did you have somebody you worked with most closely? 15 A Yes. 16 Q Who was that? 17 A Winston Lord, Samuel Lewis, and Reginald 18 Bartholemew. Winston Lord was the director and the other two 19 were the deputy directors. 20 Q And Mr. Lord later went on to become the ambassador 21 of China? 22 A Ambassador to China. Yes. 23 Q To China. And what period did he become ambassador 24 to China? 25 A I don't know the exact -- it was during the Bush 18 1 administration. 2 Q And how long did you stay there? 3 A I stayed there until President Carter was elected, 4 '76. 5 Q 1980 -- 1976, correct. And what happened? 6 A I went back to the White House in a very similar 7 position -- a higher position, but very similar job to what I 8 had at the beginning, so now I was in the Carter 9 administration in the White House, but focusing on exactly 10 the same issues. It was always international trade and 11 international finance. 12 Q And was there a title to your position? 13 A I believe it was called staff member of the 14 Economic Policy Committee. 15 Q And who was your supervisor? 16 A Ernest Preeg. 17 Q How is that spelled? 18 A P-r-e-e-g. 19 Q Was there someone ultimately that sat on top of 20 this Economic Policy Committee? 21 A Yes. 22 Q Who was that? 23 A Secretary of the Treasury Blumenthal. 24 Q And what were your duties and responsibilities? 25 A I was the person in the White House who was 19 1 coordinating the various views of agencies in the government 2 on these issues of trade and finance. I was a staff member. 3 Q Again, was there a particular region of the world 4 you focused on more than others? 5 A No. 6 Q And how long did you stay in that job? 7 A I stayed for about a year and a half? Well, it 8 may have been a little less. It may have been about nine 9 months. 10 Q In terms of your position at the White House at 11 that time, did you work with the Commerce Department in 12 furtherance of your duties and responsibilities? 13 A I worked with all the agencies. Any agency that 14 had a role in international economic issues. 15 Q Which would have included the Commerce Department. 16 A Yes. 17 Q Who did you work with at the Commerce Department, 18 generically speaking? What level? What part? 19 A I don't remember the names, but typically it would 20 have been at the assistant secretary level. 21 Q Of the ITA, International Trade Administration? 22 Or all different branches? 23 A Probably all different branches. I don't even know 24 if the ITA existed then. I think the position that I 25 subsequently had at the Commerce Department didn't exist 20 1 then. I was dealing at a relatively middle-high level. 2 Q Were you focused on exports? Imports? 3 A I'm sure -- I mean, I don't remember -- all of 4 those. Anything that dealt with global economic issues would 5 come to me to put in the form of a decision memorandum that 6 somebody higher than me would use. 7 Q And did you also liaise with the U.S. Trade 8 Representative in that post? 9 A Yes. 10 Q And with the Department of Treasury? 11 A Yes. 12 Q Department of Labor? 13 A Yes. 14 Q Department of State, obviously? 15 A Yes. 16 Q Did you travel to China up to that point in time? 17 A No. 18 Q Have you ever traveled to China? 19 A Yes. 20 Q Up to the point of your post under the Clinton 21 administration at the Commerce Department, had you ever 22 traveled to China? 23 A Yes. 24 Q When was that? 25 A I think it was 1985. 21 1 Q Okay. We'll pick that up as we go through the 2 chronology. Any other times? 3 A No. 4 Q In the course of your working at the White House in 5 the Carter administration with the Commerce Department, you 6 became aware that the Commerce Department generally speaking 7 is a very politicized agency, correct? 8 MR. WITTEN: Objection to the form. 9 MS. BRASWELL: Objection. 10 MR. KLAYMAN: You can respond. 11 JUDGE FACCIOLA: Overruled. You can respond, if 12 you can. 13 THE WITNESS: I can't even relate to the question. 14 BY MR. KLAYMAN: 15 Q Well, let me give you an example. At the Commerce 16 Department, under all administrations, or at least 17 administrations that you were experiencing up to that point, 18 Nixon and Carter -- 19 A Nixon, Ford and Carter. 20 Q Nixon, Ford and Carter. You came to understand 21 that frequently a component in decision making at the 22 Commerce Department was whether or not industries were large 23 contributors to the party in power, correct? 24 MR. WITTEN: Objection. Scope. Form. 25 JUDGE FACCIOLA: Overruled. 22 1 THE WITNESS: I have no recollection of thinking 2 that way. Everything about my background to that point was I 3 was a very technical person. I was less than 30 years old. 4 I was not in any -- I had already been affiliated with two 5 political parties. I was not partisan. 6 I was in the area of basically asking the question 7 of asking what is in the U.S. interests as best I could and 8 that's what I was guided on. I can't relate to your 9 question. 10 BY MR. KLAYMAN: 11 Q Well, we're going to jump a little bit in time 12 here. We're going to go through your chronology, but let's 13 just, for purposes of this question, take it up to the 14 present. You are aware based on your considerable 15 experience, much of which has been published in terms of your 16 background, that a factor in decision making at the Commerce 17 Department historically, whatever administration, Democrat or 18 Republican, has been whether industries contribute to the 19 political party in power. 20 MR. WITTEN: Objection. 21 MS. BRASWELL: Objection. 22 JUDGE FACCIOLA: Overruled. 23 MR. KLAYMAN: In the executive branch, correct? 24 JUDGE FACCIOLA: Overruled. I think he's answered 25 that, but if you can, Mr. Garten. 23 1 THE WITNESS: I don't know how to answer that 2 question because -- I'll ask you to make it more precise. 3 You're asking me as an American citizen do I understand that 4 there is some relationship between economic power and 5 politics? The answer is yes. I don't confine that to any 6 particular agency or any particular administration. 7 BY MR. KLAYMAN: 8 Q And a component of politics is money, correct? 9 A I think that's true in the United States and every 10 other country. I think that's true of every period of 11 American history. 12 Q And that certainly enters into the minds of 13 decision makers at the Commerce Department when deciding how 14 to make rulings on various matters. 15 MS. BRASWELL: Objection. 16 MR. WITTEN: Objection. 17 MR. KLAYMAN: Based on your experience. 18 MR. WITTEN: Objection. He's asking the witness to 19 read the minds of countless unidentified Commerce Department 20 officials. 21 JUDGE FACCIOLA: I'm going to sustain the 22 objection. I think Mr. Garten has explained to you 23 sufficiently how he views it. 24 MR. KLAYMAN: Let me see if I can make it more 25 precise. 24 1 BY MR. KLAYMAN: 2 Q You have sat in on discussions throughout your long 3 and distinguished career where you have heard conversations 4 at the Commerce Department and elsewhere that concern whether 5 or not a particular party that is subject to the discussion 6 has made campaign contributions to the party occupying the 7 executive branch? 8 MR. WITTEN: Objection. 9 MS. BRASWELL: Objection. 10 JUDGE FACCIOLA: Overruled. 11 MR. WITTEN: I don't mind if you ask questions. I 12 do a little object to each question where you load in a 13 factual premise that has not been established. 14 MR. KLAYMAN: That's the reason for the question. 15 Thank you. 16 JUDGE FACCIOLA: Overruled. If you can, 17 Mr. Garten. 18 THE WITNESS: Would you repeat the question? 19 BY MR. KLAYMAN: 20 Q During the course of your long and distinguished 21 career in international trade, you have been privy to 22 meetings where discussions of how much an individual or a 23 company donated to a political party came up. 24 A I don't recall ever being in a meeting where that 25 was the subject of discussion. 25 1 Q You don't remember? 2 A I'm not saying that I've never been in that 3 meeting, a meeting like that, but it has not been a part of 4 my career to find myself in those situations, and so sitting 5 here right now, I do not recall being part of any discussion 6 where someone said that so and so gave so much money period, 7 let alone that because of that something should happen. 8 Q So you're telling me that you've never, ever heard 9 anything like that in a meeting? 10 MR. WITTEN: Asked and answered. 11 MS. BRASWELL: Objection. 12 JUDGE FACCIOLA: Sustained. Asked and answered. 13 MR. WITTEN: You don't have to answer. 14 BY MR. KLAYMAN: 15 Q You are aware that historically speaking the 16 Secretary of Commerce frequently has been a fundraiser of a 17 political party. 18 A I know that some have. I don't know whether that 19 has been historically the case. 20 Q Which are the ones you know have been? 21 MR. WITTEN: Objection. Scope. 22 JUDGE FACCIOLA: Overruled. 23 THE WITNESS: Secretary Mosbacher. Secretary 24 Brown. 25 JUDGE FACCIOLA: Mr. Witten, the irony is 26 1 delicious, isn't it? 2 MR. WITTEN: I prosecuted Maurice Stans. 3 JUDGE FACCIOLA: And I defended him. 4 We just thought we'd tell you that. 5 MR. KLAYMAN: I'm jealous, Your Honor. 6 JUDGE FACCIOLA: At the risk of sticking our noses 7 in, I thought Stans broke the record, didn't he? He raised 8 more money than any human being on the face of the earth. 9 MR. WITTEN: It was certainly the record as of that 10 time. 11 JUDGE FACCIOLA: He was Secretary of Commerce. 12 BY MR. KLAYMAN: 13 Q How long did you stay in this job at the White 14 House? 15 A I think it was about nine months. 16 Q And what happened then? 17 A I was asked to come back to the State Department. 18 Q And what position did you take there? 19 A I was the deputy director of the policy planning 20 staff. 21 Q And what were your duties and responsibilities? 22 A They were substantially -- it was substantially the 23 same issues that I had been dealing with, only I was now 24 supervising several other people and when the director wasn't 25 there, I handled other issues, too. 27 1 Q What people were you supervising? 2 A There were staff people who were focused on 3 international economic issues. 4 Q Was there an area of the world that you specialized 5 in more than another? 6 A No. 7 Q And how long did you stay in that job? 8 A Until '79. 9 Q And what happened then? 10 A I went to Wall Street. 11 Q And where did you go on Wall Street? 12 A I went to Lehman Brothers. 13 Q And what position did you get there? 14 A I was a vice president. 15 Q Did someone recommend you for that job? 16 MR. WITTEN: Scope. 17 JUDGE FACCIOLA: Sustained. 18 MR. KLAYMAN: It may be somebody who has knowledge 19 about Mr. Garten's activities. 20 MS. BRASWELL: That's a stretch, Your Honor. 21 JUDGE FACCIOLA: Sustained. 22 BY MR. KLAYMAN: 23 Q What were your duties and responsibilities at 24 Lehman Brothers? 25 MR. WITTEN: Scope. 28 1 JUDGE FACCIOLA: Sustained. 2 MR. KLAYMAN: Your Honor, I'm trying to establish 3 background. It's very, very important. 4 JUDGE FACCIOLA: Let me see if I can figure out -- 5 Why don't you tell us what you did there, if you 6 can. 7 THE WITNESS: I was a general investment banker in 8 the corporate finance area. 9 MR. KLAYMAN: Can we take a two-minute break and 10 I'll explain why this is an important area? 11 JUDGE FACCIOLA: Yes. Do you want Mr. Garten to 12 step out? 13 MR. KLAYMAN: Yes. Thank you. 14 JUDGE FACCIOLA: Would you step out for just a 15 second? 16 (The witness was excused.) 17 MR. KLAYMAN: Your Honor, the reason why in this 18 instance background is much more important than usual is 19 because Mr. Garten has testified that in fact Mr. Huang was 20 not competent for his job at the Commerce Department, that he 21 and Mr. Rothkopf had much more expertise in China and 22 consequently this is why he was quote walled off. So I'm 23 trying to establish what expertise -- 24 JUDGE FACCIOLA: Who is the he in that sentence? 25 MR. KLAYMAN: Huang. Huang was walled off. 29 1 JUDGE FACCIOLA: So you want to inquire as to what 2 Mr. Garten did at Lehman Brothers? Is that what he said? 3 MR. KLAYMAN: Well, I mean, we have reason to 4 believe that Mr. Huang actually was a lot more competent for 5 China than Mr. Garten was, based on his experience. That's 6 just a premise upon which we're looking at the situation from 7 our own objective posture. 8 We don't really have a dog in that fight. That's a 9 fight between the two of them. And we need to know in terms 10 of motivation here and in terms of intent why Mr. Garten 11 would make such a claim, that Mr. Huang was incompetent when 12 it came to China, which is his specialty. 13 JUDGE FACCIOLA: His being Huang's specialty, 14 supposedly. 15 MR. KLAYMAN: Right. 16 MR. WITTEN: May I make a suggestion? Why don't 17 you just ask him whether he has any China or Asia experience 18 rather than open-ended questions concerning Lehman and we can 19 get right to it and past it and, though it's not relevant to 20 this particular dispute, your description of Mr. Garten's 21 testimony is not accurate. 22 MR. KLAYMAN: Well, duties and responsibilities, 23 Your Honor, it's just a simple question just to get through 24 it. 25 JUDGE FACCIOLA: All right. Well, let's see if we 30 1 can move along. 2 MS. BRASWELL: Your Honor -- 3 JUDGE FACCIOLA: I mean, we've been bogged down on 4 his background for the better part of half an hour and I see 5 where you're going with this and you want to show that he did 6 or did not have certain expertise, but I think we can get 7 there in a more pointed and directed fashion. 8 MS. BRASWELL: And may I ask how Mr. Garten's 9 opinion of Mr. Huang's capabilities relates to documents at 10 the Department of Commerce? 11 JUDGE FACCIOLA: That remains to be see. 12 MR. KLAYMAN: Well, let me -- 13 MS. BRASWELL: Maybe a proffer would be helpful 14 before we go through an hour of testimony on the issue. 15 MR. KLAYMAN: Well, I will do that as long as you 16 don't then discuss this proffer with the witness. 17 MS. BRASWELL: I'll be happy not to. 18 MR. KLAYMAN: Will you agree not to do that? 19 MS. BRASWELL: That's fine. 20 MR. WITTEN: Oh, I certainly agree with that. 21 MR. KLAYMAN: Well, we have reason to believe, 22 Your Honor, that Mr. Garten is in fact covering for himself 23 with regard to this matter; that he knew what Mr. Huang was 24 doing at the Commerce Department and allowed it to happen. 25 That's the basis for that. 31 1 JUDGE FACCIOLA: And then how does that relate -- 2 MS. BRASWELL: How does that relate to documents? 3 MR. KLAYMAN: Well, that he certainly has an 4 incentive -- 5 MR. WITTEN: And what's the good faith basis for 6 that scandalous assertion? What is your good faith basis for 7 stating that, sir? 8 MR. KLAYMAN: The basis that I just stated that 9 Mr. Huang in fact is much more qualified to deal with China 10 than anyone else at that department. 11 MR. WITTEN: You said something about Mr. Garten 12 covering up something and I want to know why in good faith 13 you have a basis for stating that on this record. 14 MR. KLAYMAN: I'm stating that because all the 15 evidence suggests that Mr. Huang was heavily involved in 16 China and that he had much more expertise than Mr. Garten to 17 deal with it; that he was the person, quite apart from other 18 factors, that should have dealt with it. 19 MR. WITTEN: Do you have any other basis for that? 20 MR. KLAYMAN: Well, there's a very long and deep 21 record. It would take us a lot of time to get through. 22 MS. BRASWELL: That doesn't seem to be much of a 23 proffer, Your Honor. 24 MR. KLAYMAN: It's more than I unusually give. 25 JUDGE FACCIOLA: What we'll do at this point is 32 1 we'll see if Mr. Garten -- 2 I'm going to ask you, Mr. Klayman, to please move 3 along and get general background as to where this witness can 4 claim expertise or has expertise and then move along more 5 directly to the point you want to make and then we'll get to 6 it when we get to it. 7 MR. KLAYMAN: In essence, what I'm saying here -- 8 this is why I asked counsel not to discuss it with the 9 witness -- is that Mr. Garten knew exactly what Mr. Huang was 10 doing, that Mr. Huang was the person for that position and 11 the very fact that certain things may or may not have 12 occurred with Mr. Huang, having occurred on Mr. Garten's 13 watch, he obviously has an incentive not to produce documents 14 and not to testify candidly about what happened. 15 MS. BRASWELL: What is the basis for his knowledge 16 that Mr. Garten supposedly had this knowledge? I mean, we've 17 asked for a proffer, we haven't gotten one. 18 MR. KLAYMAN: Well, we're going to go through the 19 deposition. 20 MS. BRASWELL: No, no, no. What is the background? 21 What is the evidentiary basis for a good faith questioning 22 that Mr. Garten supposedly had this knowledge? 23 Mr. Klayman has not yet provided it, Your Honor. 24 MR. KLAYMAN: Your Honor, I gave the proffer in 25 good faith here. What the reality is is that Mr. Huang was 33 1 someone who had the expertise to carry out the functions that 2 he carried out, whether it was done legally or not, that's an 3 issue in this lawsuit. But I'm trying to establish that 4 Mr. Garten in fact put Mr. Huang in that position because he 5 was quite suited for that position and now there is an 6 incentive to remove documents, there is an incentive not to 7 be candid, because of the things that Mr. Huang is alleged to 8 have done at the Commerce Department. 9 MR. WITTEN: Before we resume, Mr. Klayman has 10 made a serious and scandalous attack on the veracity of 11 Mr. Garten, who has done nothing but serve this country 12 during four different administrations and I will ask for 13 sanctions if you do not establish to the satisfaction of a 14 fact finder any basis for this kind of really grossly 15 disturbing name calling. 16 MR. KLAYMAN: Well, first of all, you asked for the 17 proffer. I gave you my candid assessment. You have no basis 18 for sanctions. If you ask them, you will be served with a 19 motion for sanctions. 20 JUDGE FACCIOLA: All right. That's fine. But 21 I think we all have to proceed on the basis that -- and as 22 I understand what you're trying to accomplish, is that 23 Mr. Garten is not telling the truth in what he is about to 24 tell us; that as Mr. Witten points out is dangerous ground 25 for an attorney. So you know what you're doing, there's 34 1 nothing I can do to -- 2 MR. KLAYMAN: You asked for the proffer, 3 Your Honor, I gave it to you. I'm entitled to give you my 4 reasonable opinion. You want to seal this part of the 5 record, that's fine. I have no problem with that. 6 JUDGE FACCIOLA: I do not see any reason to seal 7 it. 8 MR. KLAYMAN: But I am giving you my opinion. I 9 have made no public allegations. I'm telling you the basis 10 for this testimony. 11 JUDGE FACCIOLA: Fine. 12 MR. KLAYMAN: And if you want to seal it, that's 13 fine. 14 MS. BRASWELL: No. 15 JUDGE FACCIOLA: No, I don't want to seal it, but I 16 just hope that we understand that a man's reputation is at 17 stake here and -- 18 MR. KLAYMAN: Well, I'm not the only one who has 19 made that assertion. It was others have reached that 20 conclusion. 21 JUDGE FACCIOLA: You're the only one who's here 22 before me and that's what concerns me. 23 MR. KLAYMAN: Well, I'm entitled to prove it, 24 aren't I? 25 JUDGE FACCIOLA: You're entitled to prove it. 35 1 MR. KLAYMAN: And document -- 2 JUDGE FACCIOLA: I hope that we would be sensitive 3 to the fact that we do have a man's reputation at stake and 4 we would not unfairly or improperly impugn him. 5 MR. KLAYMAN: And that's why I'm offering, if you 6 want to put it under seal, that's fine, but I'm telling you 7 the basis for -- 8 JUDGE FACCIOLA: Why don't we go forward. If 9 Mr. Witten wants me to put it under seal, I'll certainly take 10 that under advisement. 11 MR. KLAYMAN: I'm telling you the basis upon which 12 I'm undertaking this line of questioning. 13 JUDGE FACCIOLA: Okay. 14 MR. KLAYMAN: That we have the benefit here of a 15 record of Mr. Garten having testified in front of Congress. 16 Number one. 17 Number two, we know Mr. Huang's expertise. He has 18 considerable expertise. In fact, he had more expertise in my 19 view, and I have an international trade background as well, 20 than anyone I know of at the Commerce Department in terms of 21 China and trade. And having looked at the testimony, I'm 22 entitled to my opinion, as others have reached the same 23 conclusion, that Mr. Garten was not being candid that 24 Mr. Huang was incompetent. 25 MR. WITTEN: Now you've stated that others have 36 1 reached that conclusion. What's your basis for that 2 statement? 3 MR. KLAYMAN: If you'd like to buy a copy of the 4 book "Year of the Rat," feel free. I'll loan you my copy. 5 They have reached that conclusion. 6 MR. WITTEN: Any other basis for that statement, 7 Mr. Klayman? 8 MR. KLAYMAN: Logic and common sense. I'm 9 certainly entitled to prove it. 10 MR. WITTEN: Well -- 11 MR. KLAYMAN: So before you make scurrilous 12 allegations on the record against me -- let me finish -- 13 MR. WITTEN: Excuse me. Excuse me. The statement 14 was -- 15 MR. KLAYMAN: Let me finish, Mr. Witten. 16 MR. WITTEN: -- that others had reached the same 17 conclusion -- 18 MR. KLAYMAN: Your Honor -- 19 MR. WITTEN: I'm only asking you your basis for 20 your statement that others had reached the conclusion and 21 other than the book, "The Year of the Rat," do you have any 22 other basis for -- 23 MR. KLAYMAN: There are two people that wrote that. 24 MR. WITTEN: Okay. And other than that, do you 25 have any other basis for your statement on this record -- 37 1 MR. KLAYMAN: I'm not being deposed -- 2 MR. WITTEN: -- that others have reached the 3 conclusion -- 4 MR. KLAYMAN: I'm not being deposed. I'm not being 5 deposed. 6 Your Honor, but I'm entitled to my position. You 7 asked for it, Mr. Witten. He got it. And for him to sit 8 here and to threaten me with sanctions is like the pot 9 calling the kettle black. 10 JUDGE FACCIOLA: All right. Well, we don't need 11 that kind of incivility. Let's see if we can get going. 12 Let's move along with the witness' background. 13 Mr. Garten? 14 (The witness returned.) 15 MR. KLAYMAN: Your Honor, may I ask that we just 16 run through quickly what his duties and responsibilities were 17 at Lehman Brothers? 18 MR. WITTEN: I thought we had agreed the question 19 would simply be Asia experience, Your Honor. 20 MR. KLAYMAN: I didn't hear that ruling from 21 Your Honor. 22 JUDGE FACCIOLA: Okay. 23 Mr. Garten, what we're trying to do here is go 24 through your career and your background, all right? I would 25 ask if you would help us do that by answering this question. 38 1 Looking at your career at Lehman Brothers, could 2 you just briefly describe with reference to what you've told 3 us how, if at all, your duties there had anything to do with 4 international trade or finance? 5 THE WITNESS: I spent a good deal of my time 6 working with foreign clients. I started out with a heavy 7 focus on Latin America and then in 1984 I moved to Tokyo to 8 head up and build up all the investment banking activities 9 for Lehman Brothers in Asia. That was substantially 10 Japanese-related, but it did include -- it came to include a 11 lot of work in Hong Kong. 12 Then I came back to New York in '87 and I was 13 overseeing a lot of restructuring of international companies. 14 Most of the work was out of London, I was going back and 15 forth from New York to London. 16 Then I left in '88, started my own firm called 17 Elliott Group. We worked with small American companies that 18 were seeking capital abroad. 19 And then I went to the Blackstone Group, I think it 20 as about '91, where my focus was on mergers and acquisitions 21 between Japanese and U.S. firms. 22 And then I went into the Clinton administration. 23 BY MR. KLAYMAN: 24 Q Up to that point in time, you had no particular 25 expertise in China, correct? 39 1 A Correct. 2 Q And in 1981, you say you went into the Clinton 3 administration. 4 MR. WITTEN: '91. 5 MR. KLAYMAN: 1991. 6 THE WITNESS: No, 1993. 7 BY MR. KLAYMAN: 8 Q 1993. Excuse me. And how did you get your job in 9 the Clinton administration? 10 A I don't really know. I was invited to make a 11 presentation at something that was called the Little Rock 12 Summit. It was after Clinton had been elected, but before he 13 took office. 14 Q Who invited you? 15 A I don't remember. It was a staff member, I think, 16 of the transition team. 17 Q Male, female? 18 A Male. 19 Q Was it someone high up? 20 A No. Not someone I had ever heard of and the level 21 of the person is such that I couldn't tell you the name now. 22 I was told that there was going to be this all-day conference 23 and that Clinton and Gore would be there and that they were 24 looking for people who could make some very short 25 presentations on major national issues and that it would be 40 1 televised. So I said I would be happy to go. I went. 2 And I found myself on a panel with three people and 3 the panel was the international economy and each of us made a 4 five-minute presentation. My presentation was on the dollar. 5 Clinton asked me several questions and we got into a dialogue 6 and from what I heard it was a very interesting back and 7 forth. 8 And then several weeks later I got a call from 9 somebody on the transition team asking me if I would be 10 interested in joining the administration. 11 Q Who was that? 12 A I don't know. It is somebody who isn't there any 13 more or wasn't there -- 14 Q Who sat on the panel with you? You said there were 15 three. 16 A A woman named Paula Stern and -- 17 Q Pervious commissioner of the International Trade 18 Commission? 19 A Yes. Right. 20 Q Who else? 21 A And a distinguished economist name Rudy Doenbush, 22 who is at MIT. 23 Q I take it you met people at this conference that 24 now are or were in the Clinton administration. 25 A Well, actually, I didn't because I flew in, I went 41 1 to that panel and I immediately left. I don't think I was 2 there more than an hour and a half. 3 Q You are aware that Mickey Kantor was at that 4 conference. 5 A I am not aware. 6 Q You are aware that Harold Ickes was at that 7 conference. 8 A I am not aware. 9 Q Ira Magaziner? 10 A Not aware. 11 Q Robert Ruben? 12 A Not aware. 13 Q Ron Brown? 14 A Not aware. 15 Q So you got the call and what position -- what 16 happened after you got this call saying there was an interest 17 to have you in the administration? 18 A I said I wasn't interested, although I would be 19 happy to provide some advice, if that's what they wanted. 20 Q And what happened then? 21 A They said would you be willing to come down and 22 talk to Secretary Brown. 23 Q Do you remember who that was at that point? 24 A Same person, but I don't know. 25 Q And what happened after that? 42 1 A I said of course I would. And a couple of weeks 2 later I had occasion to be in Washington, I didn't make a 3 special trip, I had a half-hour meeting with him. 4 Q Where did you meet? 5 A In his office. 6 Q Was anybody present? 7 A Not during the discussion. 8 Q Somebody was present afterwards? 9 A Somebody met me and somebody was there afterwards. 10 Q Okay. Who met you? 11 A I can see the woman, but I can't remember her name. 12 Q Was it a caucasian woman, African-American woman? 13 A Caucasian. 14 Q His assistant? Barbara Schmitz? 15 A No. 16 Q Melissa Moss? 17 A I don't think so. 18 Q You know Melissa Moss, don't you? 19 A I know who she is. Yes. 20 Q Okay. Melanie Long? Dalia Traynham? 21 MR. WITTEN: You have to answer yes or no for the 22 transcript. 23 THE WITNESS: No to all that as far as I can 24 recall. The woman left. She had a position in the 25 department for a while and then she left after maybe six 43 1 months. 2 BY MR. KLAYMAN: 3 Q Okay. So when you had the meeting with Secretary 4 Brown, it lasted about half an hour, what did he say to you? 5 I take it he started the conversation. He started the 6 conversation, correct? 7 A I assume. He was very direct. He said I've had 8 trouble filling this position. 9 Q What was "this position"? Did he tell you? 10 A He probably said -- I don't remember this verbatim, 11 but it was something to the effect I'm looking for an under 12 secretary for trade, I've had trouble filling this position. 13 Now, it was no secret he had trouble because in the 14 newspapers there was some discussion of people who had turned 15 it down. 16 Q Who had turned it down? 17 MR. WITTEN: Scope, Your Honor. 18 JUDGE FACCIOLA: Sustained. 19 MR. KLAYMAN: Your Honor, this is quite relevant. 20 Can I explain to you why in confidence? 21 JUDGE FACCIOLA: Mr. Garten, step out for a second. 22 Just step out for a second. 23 (The witness was excused.) 24 JUDGE FACCIOLA: Yes? 25 MR. KLAYMAN: Your Honor, can I talk candidly 44 1 without being attacked here? I'm trying to be helpful, okay? 2 It's my opinion based on everything we know, in 3 all due modesty, I think we know a little bit about this 4 subject. If people were being asked to do something which 5 was illegal and they turned it down on that basis, it's quite 6 relevant and we believe that in Mr. Garten's position that he 7 participated in the sale of seats on trade missions for 8 campaign contributions. 9 People may have turned that down because they 10 didn't want to be part of it, so we need to know who they 11 are. 12 JUDGE FACCIOLA: Is there any evidence that they 13 did, these other people? 14 MR. KLAYMAN: Well, we just want to get the names, 15 that's all. I'm not making any accusations, but that's the 16 basis and that's what we're here about. 17 JUDGE FACCIOLA: The objection will be sustained. 18 Mr. Garten? 19 (The witness returned.) 20 MR. KLAYMAN: Could I have just 30 more seconds, 21 Your Honor? For the record? 22 JUDGE FACCIOLA: I'm sorry, Mr. Garten. Just step 23 right outside by my clerk's desk. 24 (The witness was excused.) 25 JUDGE FACCIOLA: Yes, Mr. Klayman? 45 1 MR. KLAYMAN: This is not an issue of personality. 2 I'm not trying to -- you can see I'm being quite polite with 3 Mr. Garten and with his counsel until he attacked me, but the 4 issue here is that this was somebody who was literally in the 5 number three post at the Commerce Department. 6 JUDGE FACCIOLA: This gentleman. 7 MR. KLAYMAN: Yes. He was in the International 8 Trade Administration. He took credit for the trade missions. 9 He is the implementer of the trade missions. This is perhaps 10 the equivalent, if we're going to get candid testimony here, 11 I'll let the Court be the judge of that, of a living Ron 12 Brown. And if other people were offered this post and didn't 13 take it because they didn't want to participate in a 14 political patronage scheme, it's relevant. We need to know 15 who those people are. 16 MR. WITTEN: I thought this was a FOIA case, 17 Your Honor. 18 MR. KLAYMAN: They may have documents, Your Honor. 19 JUDGE FACCIOLA: I don't think so. Sustained. 20 Come in, Mr. Garten. 21 (The witness returned.) 22 MR. KLAYMAN: Can I ask Your Honor the basis of 23 your ruling? 24 JUDGE FACCIOLA: Because it's irrelevant. It 25 doesn't meet even the broadest standard of Rule 26 by being 46 1 likely to lead to evidence. 2 MR. KLAYMAN: Might I ask Your Honor for a ruling 3 on why it's not relevant? 4 JUDGE FACCIOLA: Yes. It is not relevant because 5 the scope of the deposition as defined by Judge Lamberth has 6 to do with whether or not there were certain documents that 7 were removed or destroyed that were subject to this FOIA 8 request and whether or not there was a corrupt motive that 9 attended that. 10 I have permitted quite broad inquiry into the 11 activities of one Mr. John Huang because of the evidence 12 that I have seen which convinces me he's an essential figure 13 in this and the connection that he has with the department 14 bears on whether or not there were people at the department 15 who by virtue of their relationship with him or otherwise had 16 some reason to be not candid when they were directed to make 17 FOIA searches or to destroy or remove documents from the 18 premises. I don't see how that question relates to it, even 19 despite your proffer. And I may be mistaken, but we have to 20 move on. 21 MR. KLAYMAN: Well, if I may just put on the 22 record, the issue here is documents and documents may have 23 been created, I'm not going to be too specific here because 24 the witness is sitting here, documents may have been created 25 in this context which reflect the matters that are subject to 47 1 the FOIAs and this lawsuit and the judge's order of December 2 22nd. 3 JUDGE FACCIOLA: I persist in my ruling. Please go 4 on. 5 BY MR. KLAYMAN: 6 Q What position was it -- I'm not clear, forgive me 7 if I'm asking this again -- that was being discussed? 8 A It was Under Secretary of Commerce for 9 International Trade. 10 Q And that is a political appointment? 11 A Yes. 12 Q And that post is a post that would be high up at 13 the Commerce Department, correct? 14 A I think it would be considered a senior 15 appointment. Yes. 16 Q Number two, number three post after the secretary? 17 A I don't know the exact hierarchy. There are 18 several under secretaries, but it was a senior post. I don't 19 know what number it would come. 20 Q What else did Mr. Brown say? 21 A He told me that he thought this was a great 22 opportunity because the Clinton administration wanted to 23 really turn a focus on global trade and that this was going 24 to be one of the key positions. 25 Q Did he tell you why it was going to be one of the 48 1 key positions? 2 A I don't recall -- I don't recall the details of the 3 discussion. I mean, I just -- it was several years ago. I 4 just remember my impression that it sounded a lot better than 5 I thought it would have sounded when I went in. 6 Q Based on what? 7 A I think just his enthusiasm and maybe the 8 recognition that I was superbly qualified for this job, given 9 everything else I had done. 10 Q What did he tell you about your background that 11 made you superbly qualified? 12 MR. WITTEN: Objection. 13 BY MR. KLAYMAN: 14 Q Or led you to believe that he thought you were 15 superbly qualified? 16 A It was what I felt talking to him. I don't know 17 what kicked off that feeling, I just -- by this stage, I had 18 had a lot of experience in the public sector and I had had a 19 lot of relevant experience on Wall Street and you could tell 20 from my background that I had had an intense interest in the 21 global economic arena and this was a senior position in an 22 administration that seemed to me to be getting off on a good 23 foot. 24 Q Did he tell you who else he was considering hiring 25 to fill various positions? 49 1 A No. 2 Q Did he discuss with you a plan to conduct trade 3 missions at the Commerce Department? 4 A No. To the best of my recollection, nothing that 5 specific. 6 Q Did he tell you he wanted to do overseas trade 7 missions generally? 8 A I don't recall. I don't think that was -- I don't 9 recall the discussion being that level of detail. 10 Q You took notes during the discussion? 11 A I did not. 12 Q Did Secretary Brown? 13 A No. 14 Q Was anything else discussed? Did he give you a 15 firm offer during the meeting? 16 A You know, I don't recall because I don't think it 17 actually came to that, given that I was somewhat reserved in 18 my willingness to say it was something that I would do. In 19 fact, I recall ending the discussion saying I don't know that 20 I would want to be in the administration, but it would be a 21 great honor to be able to provide advice from wherever I was. 22 At that moment, I was not going to come to Washington, mostly 23 for personal reasons. 24 Q Were there financial reasons as well? 25 MR. WITTEN: Objection. Scope. 50 1 JUDGE FACCIOLA: Overruled. 2 THE WITNESS: It wasn't so much financial reasons. 3 My wife had a business in New York and it was not 4 transferrable, so I didn't want to put the burden on her. 5 That was the major reason. 6 BY MR. KLAYMAN: 7 Q What happened after the meeting? Did you meet with 8 others at the department that day? 9 A Not really. I just walked out with somebody. I 10 mean, I don't -- I think it was the same woman who brought me 11 in, just walked out and went back to New York. 12 Q What happened with regard to your offer of 13 employment after that? Lead me up to the point that you 14 accepted a position. Any other contact with Secretary Brown, 15 others in the Clinton administration? Any other discussions? 16 A I don't know exactly how I was contacted, but 17 someone said that Secretary Brown would be in New York and 18 that he would love to see me again. 19 Q Who was that someone? 20 A I don't remember. It was somebody on his staff. 21 And then I met him. He was at a -- some kind of an event in 22 New York. I think it was in a church. It was a big church. 23 Part of New York I hadn't been to before. And after -- I 24 think he was giving a talk and afterwards we met in one of 25 the -- somebody's office in the church and he said he had 51 1 been thinking about it and he really wanted me to take this 2 job. 3 Q What timeframe was this? 4 A Roughly May -- April, May '93. 5 Q Did you have any discussions of his plans to 6 conduct trade missions at that time? 7 A I don't recall. I don't recall trade missions. To 8 that point, the only issue was he just kept saying how good I 9 would be in this job and how much he needed somebody with my 10 qualifications. And how he wanted to build a Commerce 11 Department that was substantially more professional than it 12 had ever been and I was a key to that because of my 13 experience and he was probably just being flattering, he said 14 he had talked to a lot of people about me and he thought I 15 would bring a level of professionalism. 16 Q What happened after that? 17 A I think I talked to my wife and I said I had a lot 18 of conflicting views about going to Washington and disrupting 19 our family life and she said I think you should do it. So I 20 did. 21 Q Did you have any further meetings with Secretary 22 Brown or anybody else in the Clinton administration about the 23 substance of your job before you accepted? 24 A I don't recall, but I may have. There were two or 25 three people in the Clinton administration who I knew quite 52 1 well from previous experience and it's possible that I might 2 have called them and said what do you think of the 3 administration. I don't know that I did, but it's a little 4 fuzzy because I knew them quite well. 5 Q Did you have issues of ethics on your mind? Did 6 you question whether this administration was going to do 7 things honestly and ethically? 8 A That was not a major concern of mine. 9 Q It was a concern, though, wasn't it? 10 A I don't remember thinking about that. I mean, 11 having been in the Nixon administration, I understood that 12 the most important thing was one's own integrity and that you 13 just had to preserve that in everything you did, so it wasn't 14 like I at that time was preoccupied. I mean, I think I 15 understood the nature of government. 16 Q So you learned in the Nixon administration that if 17 you saw illegality occur elsewhere, just look the other way 18 and protect yourself. 19 MR. WITTEN: Objection. 20 MS. BRASWELL: Objection. 21 JUDGE FACCIOLA: Sustained. 22 BY MR. KLAYMAN: 23 Q You say you learned from the Nixon administration 24 that your own integrity is all that counts. 25 MS. BRASWELL: Objection. 53 1 MR. WITTEN: Objection. 2 JUDGE FACCIOLA: That's not what he said. 3 Sustained. 4 BY MR. KLAYMAN: 5 Q What was your understanding of a proper role of 6 working in government based on your experience with the Nixon 7 administration? 8 MS. BRASWELL: Objection. Vague. Over broad. 9 JUDGE FACCIOLA: In terms of your ethics. Your own 10 ethics. 11 THE WITNESS: What I took from the Nixon 12 administration was that it's possible for government to be 13 challenged on things that it's doing, but that was not a 14 reason not to be in the government; that you had to be sure 15 that everything you were doing was unassailable from the 16 standpoint of ethical values. 17 I learned the same thing when I was in Vietnam. I 18 never favored the war, but it never crossed my mind that I 19 shouldn't be there if there was a war. So all of this, 20 frankly, is not -- I don't think is relevant because when I 21 entered the Clinton administration, I did not think that 22 there was anything about the administration that gave it a 23 cast of poor ethics. It was right after they were elected. 24 BY MR. KLAYMAN: 25 Q Well, you had known at the time that there were 54 1 issues of ethics that were raised in the presidential 2 campaign of 1992, correct? 3 MR. WITTEN: Objection. Scope. Your Honor, this 4 has absolutely nothing to do the FOIA -- 5 JUDGE FACCIOLA: Sustained. 6 MR. KLAYMAN: It deals with intent, Your Honor. 7 JUDGE FACCIOLA: I don't think so. Sustained. 8 Please move on. 9 MR. KLAYMAN: Might I ask one question to follow 10 up? Your Honor can rule on it. 11 BY MR. KLAYMAN: 12 Q Is it your view based on your experience in 13 government up to that point that you can only control your 14 own actions, you can't control the actions of others and you 15 shouldn't mix into those actions of others? 16 A I didn't say that. I didn't say that. All I 17 was trying to say is I think any administration in these 18 times faces challenges by various groups that think it's 19 doing things that it shouldn't do and there will be no 20 such thing as a government that is beyond the scope of 21 this kind of criticism, thank God, and it was not an issue 22 on my mind. 23 I was very clear about my own values and it 24 never crossed my mind that anything that I came in touch 25 with knowingly would not be of the highest ethical standards. 55 1 Q You were aware, however, at the time that 2 you met with Secretary Brown and he offered you this 3 position of his previous background as a DNC fundraiser, 4 correct? 5 A I might have been. I don't recall what was -- 6 you have to remember, I was totally out of the political 7 environment. I was an investment banker, I was commuting to 8 Tokyo or to London. My only interaction was when I went to 9 that Little Rock summit, it was all of an hour and a half. I 10 had this one meeting with Secretary Brown, two meetings, and 11 I had friends in the administration for whom I had the 12 highest regard then and now. 13 Q Well, let me see if I can just focus the questions 14 here. You say that you gave this decision great thought, 15 correct? 16 A I gave it great thought from the standpoint of my 17 own personal life. 18 Q But you also gave it great thought from the 19 standpoint based on your own experience in international 20 trade and dealing with the Commerce Department, in going to 21 an agency which historically has been accused of being the 22 breeding ground of politics, correct? 23 MR. WITTEN: Objection. 24 MS. BRASWELL: Objection. 25 JUDGE FACCIOLA: Sustained. 56 1 BY MR. KLAYMAN: 2 Q You were aware up to that point in time that the 3 Department of Commerce had a reputation of doling out favors 4 to political contributions. 5 MR. WITTEN: Objection. 6 MS. BRASWELL: Objection. 7 MR. KLAYMAN: Under any administration. 8 MS. BRASWELL: Objection. 9 MR. WITTEN: Same objection. 10 JUDGE FACCIOLA: Mr. Garten, in terms of American 11 history and your profound understanding -- 12 THE WITNESS: It isn't so profound. 13 JUDGE FACCIOLA: Well, you've had a unique 14 perspective having served in so many different 15 administrations. 16 Mr. Klayman really loaded the gun up there in 17 speaking of American history focused on this particular 18 department as being a means to an end, that it is often used 19 by the party in power to reward its friends and punish its 20 enemies. Would you agree with Mr. Klayman's assessment of 21 that particular department? 22 THE WITNESS: I might have been naive, but I didn't 23 think of it in those terms. 24 JUDGE FACCIOLA: Thank you, sir. 25 MR. KLAYMAN: Well said, Your Honor. 57 1 BY MR. KLAYMAN: 2 Q You were aware at the time that the Commerce 3 Department controlled grants of monies to private industry, 4 correct? 5 A I doubt that I had much knowledge of that. 6 Remember, my focus was everything that I had done in the 7 government and all of my interaction with the Commerce 8 Department was in that arena where there was no money. It 9 was all trade policy. 10 Q Well, as part of trade policy, you are aware that 11 the Commerce Department at that time administered to the 12 anti-dumping and countervailing duty laws, correct? 13 MS. BRASWELL: Objection. 14 JUDGE FACCIOLA: Overruled. 15 THE WITNESS: Yes, I did know that. 16 BY MR. KLAYMAN: 17 Q Okay. And based on your experience in working with 18 the Commerce Department in your various other jobs, you did 19 become aware that frequently a component in decision making 20 on whether to apply dumping duties concerned whether or not 21 the industries involved, the American industries, were heavy 22 contributions to a political party. 23 MR. WITTEN: Objection. 24 JUDGE FACCIOLA: Overruled. 25 Did you ever become aware of that? 58 1 THE WITNESS: I absolutely had no knowledge of 2 that. 3 BY MR. KLAYMAN: 4 Q In fact, one of your specialties, based on your 5 experience, was Japan, correct? You had worked with Japan in 6 your various trade posts, correct? 7 A In my various investment banking jobs. 8 Q Did you have any knowledge of the prior 9 anti-dumping case involving computer chips from Japan? 10 MS. BRASWELL: Objection. 11 MR. WITTEN: Objection. Scope. 12 MR. KLAYMAN: I'm trying to get a little more 13 precise, Your Honor. 14 MR. WITTEN: That's so far afield. 15 JUDGE FACCIOLA: Yes. I'm going to sustain that. 16 BY MR. KLAYMAN: 17 Q During your discussions with Secretary Brown, did 18 he ever say to you I want you because of your expertise in 19 China? 20 A No. 21 Q Did you ever offer yourself because of any claimed 22 expertise in China? 23 A No. 24 Q Did Secretary Brown tell you during these 25 discussions who would handle China in particular in terms of 59 1 trade? 2 A No. 3 Q When ultimately were you offered the position? 4 A I think at that meeting at the church. 5 Q And when did you accept? 6 A I don't know precisely, but I would say some time 7 within a few weeks after that. 8 Q And what level of appointment did you receive? 9 A Under secretary. 10 Q And you had to go through a presidential 11 appointment process, correct? 12 A Yes. 13 Q Confirmation? 14 A Yes. 15 Q Did you have confirmation hearings where you 16 testified? 17 A Yes. 18 Q And at those confirmation hearings, did you stress 19 any expertise in China? 20 A I doubt that I did because I didn't have any. 21 Q Did you stress that you would be working with 22 others with expertise in China or simply point out? 23 A I don't have the testimony in front of me, but what 24 my recollection is is that I said that I was anxious to help 25 with expanding trade not only with the traditional trading 60 1 partners like Japan and Europe, but with emerging markets in 2 Asia and Latin America. And I might have said in one 3 sentence or in half a sentence like China, but I had only 4 been to China once. 5 Q And that was in 1985. 6 A That was in 1985 and that was for a weekend to look 7 at an old Jewish synagogue. I had no other -- I mean, I wish 8 I had the testimony here because I could not have said 9 anything other than like China. 10 Q In your discussions with Secretary Brown or in your 11 testimony before the Senate, did you stress an emphasis on 12 any region of the world in terms of promoting trade? 13 A I probably stressed Asia, Latin American and 14 eastern Europe as countries that were emerging. I'm sure 15 there was a tone that we cannot afford only to focus on Japan 16 and Europe, but that there were these other countries that 17 were really beginning to grow and that the world was 18 changing. The impression -- the theme just was there was a 19 lot of dynamism and let's not just fight yesterday's battles 20 but look ahead. 21 Q Now, when did you actually matriculate, so to 22 speak, at the Commerce Department? When did you start? 23 A Well, I was confirmed in November of '93 and I 24 probably got there a couple of months earlier as a 25 consultant, maybe two days a week or so. 61 1 Q Did you get your security clearance before you 2 started full time? Did you have a security clearance when 3 you were a consultant? 4 A I must have had some security clearance, but I 5 don't know if I had all of them. 6 Q Did you have other meetings with Secretary Brown up 7 to the point that you started as a consultant, other 8 discussions or meetings? 9 A I don't recall having any others. 10 Q Did you have any meetings or discussions with 11 people other than Secretary Brown up to the point that you 12 started as a consultant where you discussed your job at the 13 Commerce Department? 14 A As I said, I may have had a phone discussion or two 15 with some other people in the administration, not about my 16 job, but about the administration itself. 17 Q Did you ever ask anyone suppose I'm asked to 18 something that amounts to political patronage at the Commerce 19 Department, am I going to be asked to do that? I mean, did 20 you raise those kinds of inquiries with people? 21 A No. 22 Q Now, after you started as a consultant, did you 23 then have meetings with individuals at the Commerce 24 Department where they described in greater detail what your 25 duties and responsibilities were going to be? 62 1 A Well, I started to meet various people to find out 2 what -- I was interested in who was there, you know, what the 3 level of knowledge was, and to bring myself up to date on the 4 world as they saw it. But I will tell you, I am not the kind 5 of person that would ask anybody what is my job. I would 6 never ask that question and let somebody else define it, so 7 it couldn't have come up. 8 Q Is what you're saying that you would -- you're the 9 kind of person that would define your own job? 10 A Yes. 11 Q Did you understand the parameters to be in certain 12 areas at the time that you started? Generally speaking? 13 A I understood it to be an exceedingly broad mandate 14 to expand America's trade around the world. 15 Q Did there come a point in time after you started at 16 the Commerce Department where specifically you participated 17 in conversations or other kinds of communications about 18 overseas trade missions? 19 A Could you state that again? 20 Q Did there come a point in time after you started at 21 the Commerce Department where you participated in 22 conversations or other kinds of communications about Commerce 23 Department overseas trade missions? 24 A I'm sure. I'm sure there were. 25 Q And when was the first such time? 63 1 A I don't remember. 2 Q Roughly speaking. 3 A Certainly the issue would have arisen between the 4 time I first got there as a consultant and the time I was 5 confirmed. 6 Q And who has it arisen with, so to speak? 7 A I can't recall. There are so many people there and 8 for those two months, I maintained a very low profile. To 9 the best of my knowledge, all of the meetings were very 10 informal. I was not permitted to have meetings outside the 11 Commerce Department. 12 Q Who participated in meetings with you during that 13 time period? 14 A Probably people in the International Trade 15 Administration. 16 Q What are their names? 17 A I mean, there could have been 50. I don't know. 18 Q Well, who you can remember, the primary people. 19 A Well, I would say that Tim Howser was the person 20 that was most -- he was the deputy. He was the civil service 21 deputy. He had been there for a long time and undoubtedly he 22 was the person I would have relied on the most. 23 Q Did you discuss trade missions with Mr. Howser? 24 MR. WITTEN: During this period? 25 MR. KLAYMAN: Yes. 64 1 THE WITNESS: I may have. I must say you keep 2 bringing up trade missions. That was not in my view a major 3 part of my portfolio. I had no particular interest in trade 4 missions as such, so I'm sure it came up, Commerce Department 5 historically has conducted all kinds of trade missions, 6 secretarial trade missions, low level trade missions, and 7 that would not have been what I focused on. 8 I'm sure that, you know, the issue came up, but if 9 you looked at my background, it was a very un-commerce type 10 of background and I was much more, for better or worse, much 11 more interested in the broad policy and the goals and in 12 conceptualizing what it is we were trying to do. 13 BY MR. KLAYMAN: 14 Q Well, you were concerned with conceptualizing what 15 it is you were trying to do, you meaning the Commerce 16 Department, but -- 17 A No, I mean me personally. 18 Q But there's also a need for implementation of that 19 policy, correct? 20 A Right. 21 Q And trade missions were an integral part of 22 implementing that policy, correct? 23 A At least from my standpoint, very small. I don't 24 want to quibble with the word, you say integral, but on any 25 given day, if you asked how I would divide up the day in 65 1 terms of what I was concerned about that would have been, you 2 know, 3 percent. 3 Q Well -- 4 A There was a whole mechanism there for trade 5 missions. They didn't need me for that. 6 Q Let's go back. When was the first time that you 7 can recollect engaging in a conversation, a substantive 8 conversation, about trade missions at the Commerce 9 Department? 10 MR. WITTEN: Asked and answered. 11 JUDGE FACCIOLA: Overruled. 12 THE WITNESS: If you define trade mission as going 13 abroad with corporate executives, then I don't recall getting 14 involved in them at all for several months. 15 If you define that as my going abroad with a few 16 Commerce Department people or maybe people from other 17 agencies, then I was interested in that from the beginning. 18 BY MR. KLAYMAN: 19 Q Well, let's define it both ways. Tell me when you 20 first had a substantive discussion about either. 21 A Well, right as soon as I was confirmed. See, what 22 I saw my role as is defining what could we do to expand, 23 let's say, trade in Latin America. And I would go to these 24 arenas and I would talk to American companies and ask them 25 what the impediments were. 66 1 MR. KLAYMAN: I understand, Mr. Garten. We're 2 doing our best to try to -- 3 If I may ask, Your Honor, to speed this along, I'm 4 not getting a responsive answer to these questions. 5 MR. WITTEN: Objection. 6 MS. BRASWELL: Objection. 7 JUDGE FACCIOLA: No, I think you are. I mean, he's 8 just explaining to us that trade missions are 3 percent of 9 what he was doing in any given day. Then the question was, I 10 think, when was the first time -- 11 MR. KLAYMAN: That was my question. 12 JUDGE FACCIOLA: -- you discussed trade missions 13 with your colleagues at the Department of Commerce. 14 Now, given the background you've given us, that it 15 was 3 percent, do you remember more particularly the first 16 time that issue came up? 17 THE WITNESS: I don't. 18 JUDGE FACCIOLA: In the context of any place in the 19 world? 20 THE WITNESS: I don't remember when. 21 BY MR. KLAYMAN: 22 Q You were aware shortly after joining the Commerce 23 Department in your high post that Ron Brown, Secretary of 24 Commerce, was making overseas trade missions a centerpiece of 25 his secretariatship, correct? 67 1 MR. WITTEN: Object to the form of the question. 2 MS. BRASWELL: Objection. 3 MR. KLAYMAN: Just a foundation. 4 JUDGE FACCIOLA: Overruled. 5 THE WITNESS: I suspect I did. 6 BY MR. KLAYMAN: 7 Q You did, correct? 8 A I don't want to overstate it. That was one -- that 9 was one visible aspect, yes. 10 Q And you saw Secretary Brown appear in the media, on 11 television, radio and elsewhere, proclaiming that he was 12 going to conduct these overseas trade missions and help 13 American companies do more business overseas, correct? 14 A Correct. 15 Q And as part of your duties and responsibilities as 16 a high level presidential appointee, you were to play a role 17 in planning and helping to implement those trade missions, 18 correct? 19 A Well, you have to remember that I had a very 20 large -- International Trade Administration is about 3000 21 people and I did not get involved in the planning of most of 22 his trade missions other than that I was on some level, 23 because these people worked for me, responsible, but I did 24 not personally get involved in that. He went on quite a few 25 and I only traveled with him twice. In fact, it's fair to 68 1 say those are the only two trade missions I really got 2 involved in. 3 Q Which trade missions? 4 A It was to China and to India. 5 Q To China in August and September of '94. 6 A Right. And then to India, which I don't remember 7 the date. 8 Q Also in '94. 9 A I don't remember. It was, I think, six months 10 later or something. 11 Q Okay. So to back up to my question, trade missions 12 therefore were a part of your activities at the Commerce 13 Department. 14 A They were a part of my overall responsibility 15 because the International Trade Administration, which I ran, 16 was responsible for that. But personally, I did not get 17 involved except in the two. 18 Q And they were a means of implementing policies with 19 the department was trying to carry out to expand business. 20 A Yes. 21 Q In fact, that is the stated purpose of the Commerce 22 Department, to help American companies do more business. 23 MR. WITTEN: I object to the form of the question. 24 MR. KLAYMAN: Based on his experience. 25 JUDGE FACCIOLA: You don't have to accept that 69 1 characterization, but is it a fair one of what the Department 2 of Commerce's role is? 3 THE WITNESS: State it again. 4 BY MR. KLAYMAN: 5 Q You understood based on your experience that the 6 goal of the Department of Commerce is to help American 7 companies expand their business. 8 A That is one of the goals, yes. 9 Q And in the course of your conversations with 10 Secretary Brown, he did tell you that he wanted to use more 11 of a European model in having an effective ministry of 12 commerce help business overseas, correct? 13 A I don't know if he used those terms, but if he had, 14 I would have been receptive to it. I had just written a book 15 looking at global economy and how Europe and Japan were doing 16 it, so I was receptive to a very activist approach. 17 Q And one of the primary ways to be activist, as the 18 Europeans were activist, is to go on trade missions and to 19 help promote, correct? 20 A Correct. 21 Q So therefore it was an integral part of the Clinton 22 administration's trade policy for the Commerce Department to 23 conduct trade missions. 24 A Yes. 25 Q And as number two or number three at the 70 1 department, you would be one of the top officials assigned to 2 set the policy and help implement those trade missions. 3 A I think I've answered that question. I would like 4 to just stand on the answer as I gave you before. 5 MR. WITTEN: Objection. Asked and answered. 6 MR. KLAYMAN: Well, it's a different question, 7 Your Honor, because I built up to it and also it puts it in 8 perspective, so I'd like a response. 9 JUDGE FACCIOLA: Can you answer that question? 10 THE WITNESS: The International Trade 11 Administration was responsible for organizing these trade 12 missions, the ones that government officials led, and I 13 had overall responsibility for the International Trade 14 Administration. However, in terms of my own activities, I 15 delegated most of that, but I did get involved in the 16 planning of the trade mission to China and to India. 17 BY MR. KLAYMAN: 18 Q Now, tell me about up to the point that you got 19 involved in the planning of the trade mission to China and 20 India. Tell me about the discussions that you had with 21 Secretary Brown about trade missions in general, what he 22 wanted to do on them. 23 MR. WITTEN: Foundation. 24 JUDGE FACCIOLA: Overruled. 25 MR. WITTEN: You can answer, if there were any such 71 1 discussions. 2 MR. KLAYMAN: Please, Your Honor, that's 3 inappropriate. 4 THE WITNESS: You know, I didn't have a lot of 5 discussions with Brown. 6 MR. KLAYMAN: All right. There's an example, 7 Your Honor. If anybody should be moving for sanctions, it's 8 us. 9 JUDGE FACCIOLA: Oh, come on now. Let's keep 10 going. 11 Go ahead, Mr. Garten. Please, go on. 12 THE WITNESS: I didn't have a lot of discussion 13 with him, frankly, on trade missions or on anything else. We 14 seemed to be able to communicate quite easily. I always 15 figured that if I was not supporting him or doing something 16 he didn't want, he would tell me. 17 MR. KLAYMAN: Your Honor, I'm sorry, but I take 18 extreme umbrage at the way that question was interrupted by a 19 speaking objection. I think it seriously impeded the 20 testimony here and that was obviously a crucial question. 21 And I ask for an instruction, no more speaking objections. 22 Please. 23 JUDGE FACCIOLA: Well, if there is going to be an 24 objection, we'll follow the rule we have in all of these 25 depositions, if the objection is going to be anything longer 72 1 than asked and answered, we'll ask the witness to step out. 2 THE WITNESS: I'm sorry, did you ask a question? 3 JUDGE FACCIOLA: No. There's nothing pending. 4 BY MR. KLAYMAN: 5 Q Well, tell me the discussions you did have. 6 A You know, we had a -- I can't remember -- I mean, I 7 could tell you the discussions I remember, they were very 8 few, where he and I were alone and we were -- you know, was 9 there anything substantive -- a typical discussion would be I 10 would explain to him what I was going to do and I always 11 found him very supportive and they were very brief 12 discussions. 13 And there wasn't a lot of extensive communication 14 between us, I think, because we didn't need it. We were on 15 the same wavelength and I think we were delivering what he 16 wanted. 17 Q Was there a person that Mr. Brown did have 18 substantive discussions with where he told them what it is 19 he wanted to accomplish, if not you, then someone else? 20 A I don't know who else -- I don't know -- I 21 mean, I can't put myself in the position of who else he 22 talked to. 23 Q I'm not trying to be facetious -- 24 A No, I understand. 25 Q I'm not trying to be disrespectful, but are you 73 1 telling me that you had some kind of transcendental mode of 2 communicating with him? 3 MS. BRASWELL: Objection. 4 MR. WITTEN: Objection. 5 JUDGE FACCIOLA: Sustained. 6 BY MR. KLAYMAN: 7 Q Let me ask another way. You just knew what he 8 wanted to do, so you never had to talk to him? Is that what 9 you're telling me? 10 MS. BRASWELL: Objection. 11 MR. WITTEN: Objection. 12 JUDGE FACCIOLA: Sustained. 13 BY MR. KLAYMAN: 14 Q Well, who did Secretary Brown give directives to, 15 if not you? 16 MS. BRASWELL: Objection. 17 MR. WITTEN: Objection. 18 MS. BRASWELL: Vague. Over broad. 19 JUDGE FACCIOLA: Well, let me see if I understand. 20 What Mr. Klayman is trying to figure out is as 21 you have explained to us, it was not your habit to have 22 deep, broad discussions with Secretary Brown. And one of the 23 reasons, as you explained, for that is that you had every 24 reason to suppose that what you were doing was meeting his 25 needs because you and he had similar thoughts. 74 1 Now Mr. Klayman is inquiring if he did not have 2 those discussions with you, who if anyone to your knowledge 3 did? If you can, tell us. 4 THE WITNESS: I have no knowledge of anyone else. 5 I had a direct line to him and it didn't require a lot of 6 discussion because we had a set of objectives we both agreed 7 on. 8 BY MR. KLAYMAN: 9 Q And what objectives were they? 10 A It's just what you said before. It's help American 11 business in their dealings in the global market. 12 Q So that's the only discussion you ever had with 13 Secretary Brown, he just simply said figure out a way to help 14 American business, and that's it? You never had any other 15 discussions? 16 A Well, there might have been -- you know, I don't 17 want to -- no, I am not saying I didn't have any other 18 discussions, but they were very routine discussions. A 19 discussion could have been, you know, I think I ought to go 20 down to Latin America and I thought I'd go for a week or so 21 and I'd like to bring the following people. And then, you 22 know, later in the administration, you might want to go down 23 there and we will prepare the ground. He'd say fine. 24 I had a very -- I think it was a unique position in 25 that I was extraordinarily free to define it the way I 75 1 wanted. I knew a lot of other people in the administration 2 from previous experience, so they had had a lot of confidence 3 in me. I kept people informed as to what we were doing and 4 it didn't require a lot of hammering out and we had a very 5 good team, so that we could deliver what we had to deliver. 6 Q And what I'm trying to get into, Mr. Garten, in 7 these questions is how you delivered it. Number one, what 8 frequency did you have communications with Secretary Brown on 9 a weekly basis? 10 A I don't recall. I would say maybe three or four 11 times a month. 12 JUDGE FACCIOLA: Did you have regular staff 13 meetings? 14 THE WITNESS: No. As far as I know, I do not 15 recall any staff meetings. There may have been some. It was 16 not my style to spend a lot of time on that. If I needed to 17 see him, I would speak to him directly. 18 BY MR. KLAYMAN: 19 Q And where did you speak with him, in his office? 20 A Generally, yes. 21 Q Was there anybody present during the times that you 22 spoke with him directly in his office? 23 A I'm sure there were times. 24 Q Such as Rob Stein? Such as Melissa Moss? 25 A On occasion. 76 1 Q Such as Sally Painter, Melissa Moss' assistant? 2 A I don't rule it out. 3 Q And during those occasions, you did discuss trade 4 missions, correct? From time to time. 5 A Probably. 6 Q And during those occasions, you did discuss persons 7 and companies that would go on the trade missions, correct? 8 A Less -- I had almost no involvement in the 9 selection of people. I won't say at some of those meetings 10 maybe a name or two didn't come up, but that wasn't part of 11 my role. 12 Q Well, let's talk about what you did hear. You did 13 hear names being discussed at those meetings, correct? 14 A You know, I cannot recall a meeting where that 15 was -- where that happened, but I don't want to rule it out, 16 that somebody didn't say so and so was coming or we're trying 17 to figure out what the right balance is. 18 To the extent I remember those discussions, they 19 would always center on the importance that Secretary Brown 20 accorded to having minorities and small businesses on those 21 trade missions. It was more of a broader question. He was 22 always pushing to make sure that the composition of the trade 23 mission reflected America. 24 Q Do you recall any discussions about any affirmative 25 action regulations at the Commerce Department to regulate 77 1 those criteria? 2 A No. 3 Q Do you know of any? 4 A No. 5 Q Based on your considerable experience, is it proper 6 to choose people on the basis of their race? 7 MR. WITTEN: Objection. 8 JUDGE FACCIOLA: Sustained. 9 BY MR. KLAYMAN: 10 Q You stated that you recall a discussion with 11 Secretary Brown about bringing people to Latin America, 12 correct? 13 MR. WITTEN: Objection to the question. 14 BY MR. KLAYMAN: 15 Q You testified to that, correct? 16 MR. WITTEN: He cited as a possibility -- 17 MR. KLAYMAN: Please. 18 JUDGE FACCIOLA: All right. 19 MR. KLAYMAN: Your Honor, this is outrageous. 20 MR. WITTEN: It's not outrageous, this is -- 21 JUDGE FACCIOLA: Mr. Garten, can you recall what 22 you told us about the discussion about Latin America? 23 THE WITNESS: I think I used it as an example. 24 JUDGE FACCIOLA: You used it as an example. 25 Mr. Klayman's question now relates to that. 78 1 Go ahead, Mr. Klayman. 2 MR. KLAYMAN: Your Honor, if every time I ask a key 3 question I get somebody to make an objection, a speaking 4 objection, I would prefer to adjourn this deposition and take 5 the issue up to Judge Lamberth right now because it taints 6 the testimony. 7 JUDGE FACCIOLA: I don't believe it does or did in 8 that instance because Mr. Witten didn't even finish the 9 sentence before I interrupted him, so I will not -- your 10 application to adjourn the deposition is denied. 11 Now, either you gave such an example or you were 12 talking in general about Latin America. Mr. Klayman's 13 question wants to focus on that aspect. 14 BY MR. KLAYMAN: 15 Q You stated that you discussed with Secretary Brown 16 taking people to Latin America, correct? 17 A No, that was not what I meant to say if I said it. 18 I was just using it as an example, that where I saw my role 19 was in going to a place like Latin America, figuring out what 20 the issues were, what kinds of problems American firms would 21 face, and then if Secretary Brown were to take a trade 22 mission, we would have some substantive underpinning as to 23 what the problems were going to be. 24 If, for example, there were 500 American 25 construction firms that were bidding on big projects in Latin 79 1 America and they couldn't get the contracts because there 2 were discriminatory provisions in the laws, then I might come 3 back and say, you know, this is one of the issues we should 4 highlight, it's a big issue, if we could move it, a lot of 5 American firms would benefit, it's counter to our effort to 6 have a non-discriminatory trade policy. That was my 7 principal activity, that was the level at which I operated. 8 I was not a real operational person. 9 It was more conceptually what would the trade 10 mission try to do, what would be the broader issues, what 11 could the Clinton administration say after the trade mission 12 was over that we tried to accomplish. 13 Q Well, but a fundamental question in whether you're 14 going to accomplish anything on a trade mission is who you 15 take on the trade mission, correct? That's the first 16 question. 17 A I don't agree with that. 18 Q So you could take anybody? You could take me or 19 take -- 20 A I didn't say that, but at the end of the day, the 21 way I saw it, it was an administration over a period of years 22 that was going to be defined by a bunch of things and one of 23 the things would be that we tried to open the markets on 24 behalf of American firms and I was not particularly concerned 25 with -- it never fell to me to pick which firms. 80 1 I was more concerned that the generic problems were 2 big ones and which firm -- that was Brown's decision, not 3 mine, as to which one would carry the flag for that 4 particular issue. It could have been -- if you take my 5 hypothetical construction example, there could be 2000 6 American firms, there could be only one place in the mission, 7 the trade mission. I did not want to get involved in that. 8 I had no competence in that. 9 Would you mind if I just took a two-minute break? 10 JUDGE FACCIOLA: Why don't we -- 11 MR. KLAYMAN: Can I ask just one question? 12 JUDGE FACCIOLA: I think the reporter needs a break 13 as well. 14 MR. KLAYMAN: Can I ask just one question on this? 15 JUDGE FACCIOLA: Yes. 16 MR. KLAYMAN: Maybe two. 17 BY MR. KLAYMAN: 18 Q The reason you didn't want tog et involved in that 19 is because you knew that politics and money was going to 20 enter into that decision, correct? 21 MR. WITTEN: Objection. 22 JUDGE FACCIOLA: Overruled. 23 THE WITNESS: No, the reason I didn't want to 24 get -- I only -- as a matter of style, I tried to do the 25 things where I felt I had a particular advantage, where I 81 1 knew something, where my experience was really relevant. 2 Traveling to Latin America and putting in digestible form 3