IN THE DISTRICT COURT FOR 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, February 11, 1999 Deposition of MICHAEL KANTOR 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, 1st Floor, U.S. District Court House, 3rd and Constitution Avenue, N.W., Washington, D.C. 20001, commencing at 9:45 a.m. 2 APPEARANCES: On Behalf of the Plaintiff: LARRY KLAYMAN, ESQ. Chairman/General Counsel Judicial Watch 501 School Street, S.W., Suite 725 Washington, D.C. 20024 On Behalf of the Defendant: MARINA UTGOFF BRASWELL, ESQ. Assistant U.S. Attorney 555 4th Street, N.W. 12th Floor Washington, D.C. 20001 BRIAN D. DiGIACOMO, ESQ. Office of General Counsel U.S. Department of Commerce 14th Street and Constitution Avenue, N.W. Washington, D.C. 20230 On Behalf of the Witness: LAWRENCE S. ROBBINS, ESQ. Mayer, Brown & Platt Also Present: THOMAS J. FITTON President Judicial Watch 501 School Street, S.W., Suite 725 Washington, D.C. 20024 3 C O N T E N T S EXAMINATION BY: PAGE Counsel for Plaintiff 5 KANTOR DEPOSITION EXHIBITS: No. 1 2/20/97 Boston Globe article, "Ex-DNC chief says he sought access for contributors" 26 No. 2 Democratic National Committee, DNC Managing Trustee Events & Membership Requirements 44 No. 3 May 5, 1994 memorandum to Ann Cahill from Martha Phipps re: White House Activities 58 No. 4 November 1, 1996 press release, United States Department of Commerce News 67 No. 5 February 12, 1997 Boston Globe article, "Donations are linked to Kantor trade missions" 76 No. 6 February 1997 Boston Globe article, "Trade trips generated millions for Democrats" 82 No. 7 5/16/95 order 120 No. 8 12/22/98 order 125 No. 9 12/22/98 order 125 No. 10 9/12/94 Judicial Watch FOIA request 175 No. 11 9/13/94 Judicial Watch FOIA request 175 No. 12 10/19/94 Judicial Watch FOIA request 175 No. 13 11/20/96 Washington Times article "Huang's thin files arouse suspicion; Lawmakers probe Commerce Department" 193 4 KANTOR DEPOSITION EXHIBITS: No. 14 Weekly reports 208 No. 15 Affidavit of Nolanda Butler Hill 231 No. 16 Minority Donor List 236 No. 17 7/25/94 letter to Melissa Moss from Terry McAuliffe, 7/25/94 memorandum to Melissa Moss from Terry McAuliffe, 1/13/94 memorandum dated re: Trade Mission to Russia 239 No. 18 September 9, 1994 Wall Street Journal article "How Ron Brown Picks Who Joins His Trips Abroad Raises Doubts." 246 No. 19 September 12, 1994 Business Week article "Clinton cozies up to business, corporate gifts to the DNC have reached unprecedented levels" 247 No. 20 6/21/96 letter to Robert S. Walker from Michael Kantor 261 No. 21 June 1996 American Spectator article, "On the Prowl" 270 No. 22 Declaration of Barbara Schmitz 8/16/96 271 No. 23 Declaration of Melanie Long 8/16/96 271 No. 24 Human Events article dated 2/28/97, "The Mysterious Actions of Ira Sockowitz" 283 No. 25 6/19/94 Investors Business Daily article "An Inside Job at Commerce?" 285 5 1 P R O C E E D I N G S 2 Whereupon, 3 MICHAEL KANTOR 4 was called as a witness and, after having been first duly 5 sworn, was examined and testified as follows: 6 EXAMINATION BY COUNSEL FOR PLAINTIFF 7 BY MR. KLAYMAN: 8 Q Mr. Kantor, can you please run us through just 9 briefly your educational background? 10 A Yes. Born in Nashville, Tennessee, went to public 11 schools. Went to Vanderbilt University, received a BA in 12 1961. Received a law degree from Georgetown University Law 13 Center in 1968. 14 Q Upon receiving your law degree in 1968, if you 15 could just set forth for us what your professional background 16 has been. 17 A Well, professionally, between 1961 and 1968, I 18 was a naval officer, United States Navy. After graduating 19 from law school, I was a legal services lawyer, both in 20 Florida and in Washington for five years, then was a -- I 21 went to California and was a partner in the law firm of 22 Manatt, Phelps, Phillips & Kantor. 23 Q In Los Angeles? 24 A In Los Angeles. 25 Q And how long were you with that firm? 6 1 A I was with that firm for 18 years. 2 Q During the time you were with legal services, I 3 take it you engaged in litigation, correct? 4 A Yes, I did. Sure. 5 Q Okay. And when you began with Manatt Phelps, what 6 was your job description? Associate? 7 A I was an associate for one year and then became a 8 partner. I was mainly involved in corporate law practice, 9 transactional practice. I had some litigation, but very 10 little. 11 Q During your time at Manatt Phelps, you did from 12 time to time participate in litigation, did you not? 13 A Yes. 14 Q About how many cases did you participate in? 15 A Oh, I couldn't remember. I was at Manatt Phelps 16 for 18 or 19 years. 17 Q Over a hundred? 18 A Oh, no. Not that many. No. 19 Q Just roughly speaking. 20 A Fifty. 21 Q And when did you leave Manatt Phelps? 22 A December 31, 1992. 23 Q And what did you do then? 24 A I was nominated by the President to become United 25 States Trade Representative. I came to Washington to prepare 7 1 for my confirmation hearing and was sworn in on January 21, 2 1993 as United States Trade Representative. 3 Q And how long did you spend working as United States 4 Trade Representative in the administration? 5 A From January 21, 1993 until April 12, 1996. 6 Q And what happened on April 12, 1996? 7 A I was sworn in as Secretary of Commerce. 8 Q And how long did you remain in that position? 9 A From April 12, 1996 to January 23, 1997. 10 Q And what were your reasons for leaving as Secretary 11 of Commerce on January 23, 1997? 12 A Strictly personal. I have a 15-year-old daughter 13 who had four years left in high school and I didn't want to 14 miss those years before she went to college and, as everyone 15 in this room is aware, the positions I held, which I was 16 privileged to hold and which I enjoyed, are time-consuming 17 both emotionally and otherwise, and physically, and therefore 18 I didn't think could enjoy those last four years and remain 19 in that position. 20 Q Did there come a point after January 23, 1997 where 21 you found alternative employment? 22 A Yes. Thank goodness. 23 Q And when was that? 24 A I began with the law firm of Mayer, Brown & Platt 25 on March 1, 1997. 8 1 Q And under what capacity did you begin with them at 2 that time? 3 A As a partner. 4 Q And what's your specialty at Mayer Brown? 5 A Basically involved with trade law. 6 Q And that's where you remain to today? 7 A Yes. 8 Q Now, from the point -- you are aware, of 9 course, that Ron Brown met an unfortunate end on 10 April 3, 1996. That's April 3rd. You're aware of that, 11 correct? 12 A Yes, I am. 13 Q Okay. Before that time, were there already 14 discussions for you to take over the job of Commerce 15 secretary? 16 A Before April 3, 1996? 17 Q Yes. 18 A No. 19 Q When did you first learn that you were going to be 20 nominated to be Secretary of Commerce? 21 A I couldn't give you a specific -- 22 Q After Mr. Brown's death. 23 A I couldn't give you a specific date. The President 24 called me and then met with me some time prior to April 12 25 and after Secretary Brown's funeral, but I can't remember the 9 1 specific date. 2 Q Well, you started on April 12th, correct? 3 A I was sworn in on April 12th. 4 Q You were sworn in. 5 A Yes. Right. 6 Q So you must have been notified by the President 7 before that that you were going to be nominated for that 8 post. 9 A Yes. 10 Q Roughly speaking, when was that? 11 A I said between the time of Ron Brown's funeral and 12 April 12. I can't tell you the specific date. 13 Q And what day was Ron Brown's funeral? 14 A I can't remember the date. 15 Q I believe it occurred on Easter of that year. 16 Does that refresh your recollection? 17 A Yes, but I can't remember the specific date, 18 Mr. Klayman. 19 MR. KLAYMAN: Let me see if I can be helpful here. 20 MR. ROBBINS: Let the record reflect that the 21 interrogator is searching what appears to be a pocket 22 calendar in order to elicit from the witness what specific 23 date Easter fell on in a year some years ago. 24 MR. KLAYMAN: I'm just trying to refresh a 25 recollection. I'm just trying to pinpoint a time here. 10 1 BY MR. KLAYMAN: 2 Q Easter Sunday was, according to my pocket calendar, 3 a Sharp 256KBY0550, was Sunday, the 6th of April. Is that 4 roughly speaking when you were notified by the President that 5 you would be Secretary of Commerce? 6 A Not on Sunday, the 6th of April. No. It would 7 have been between the 6th of April and the 12th of April. 8 Q Some time after the funeral? 9 A Yes. 10 Q Okay. Now, when you were contacted by the 11 President, what did he tell you about why he wanted you to 12 take over as Secretary of Commerce? 13 MS. BRASWELL: Objection, Your Honor. How is this 14 relevant? 15 JUDGE FACCIOLA: Yes. And also wouldn't it be 16 protected by executive privilege? 17 MR. KLAYMAN: Well, Your Honor, the reason it's 18 relevant is that -- what I'll do is -- I don't want to give 19 away what my follow-up questions are, so maybe I'll put them 20 on the record right now, the questions, and Your Honor can 21 come back and make the ruling later. 22 JUDGE FACCIOLA: All right. Let's leave it this 23 way. 24 You had a conversation with the President? 25 THE WITNESS: Yes. 11 1 JUDGE FACCIOLA: As a result of that conversation, 2 you became Secretary of Commerce? 3 THE WITNESS: Yes, Your Honor. 4 JUDGE FACCIOLA: Let's move on from there, 5 Mr. Klayman. 6 MR. KLAYMAN: Let me make a proffer now why it's 7 relevant. 8 JUDGE FACCIOLA: Please. 9 MR. KLAYMAN: It's that during the period 10 between Ron Brown's death and Mr. Kantor's taking over as 11 Secretary of Commerce, we believe that the White House was 12 concerned about Judicial Watch's lawsuit. There had been 13 communications, that's a matter of record, and there had been 14 daily reports. 15 I'm going to get into those daily reports with 16 Mr. Kantor. In fact, there had been notifications from 17 Ron Brown to Leon Panetta and John Podesta. 18 JUDGE FACCIOLA: About the lawsuit? 19 MR. KLAYMAN: About the lawsuit. And there was 20 a concern about it and we need to know whether or not that 21 concern and the production of records was one of the reasons 22 why Mr. Kantor took over as Secretary of Commerce. 23 JUDGE FACCIOLA: Okay. But you're asking for a 24 conversation between the President and a man who is about to 25 become his cabinet officer. 12 1 Ms. Braswell, are they protected by executive 2 privilege? 3 MS. BRASWELL: It would be my understanding it 4 would be, Your Honor. 5 JUDGE FACCIOLA: It would be my understanding as 6 well. 7 MR. KLAYMAN: Executive privilege, Your Honor, 8 would not be an absolute privilege. I don't want to argue 9 it now. I mean, we can brief this later, but I'd like to be 10 able to ask questions getting to whether or not Judicial 11 Watch's lawsuit entered into the discussions with the 12 President, keep it that narrow. 13 MS. BRASWELL: Your Honor, that still goes to the 14 specific conversations. 15 JUDGE FACCIOLA: Ms. Braswell, okay. I hear your 16 point. 17 Conversations, however, between the President and 18 a man destined to become his cabinet officer with reference 19 to what were the President's concerns and advice he may have 20 secured from the potential member of his cabinet strike me as 21 being at the very heart of executive privilege. 22 Don't they strike you as being right there? 23 Isn't that the nature of the privilege, so that the President 24 can call upon his advisors for the free advice he needs to 25 perform his functions? 13 1 MR. KLAYMAN: Would it be -- I'd be willing to get 2 into this further if I could perhaps ask -- 3 JUDGE FACCIOLA: Well, you can make your proffer 4 and then I'm going to rule. I'm going to sustain the 5 objection. 6 Do you want to make a greater proffer and go to 7 Judge Lamberth with this? Because I'm going to rule that 8 the conversations between the President and Mr. Kantor are 9 protected by executive privilege. 10 MR. KLAYMAN: Would it be possible to make a 11 proffer with -- in the Court's presence without the witness? 12 JUDGE FACCIOLA: For what purpose? 13 MR. KLAYMAN: So I can elucidate my point further. 14 JUDGE FACCIOLA: Mr. Kantor, step out for a second, 15 you and your counsel. 16 (The witness and witness' counsel left the room.) 17 JUDGE FACCIOLA: Yes, Mr. Klayman? 18 MR. KLAYMAN: The essence is, Your Honor, I don't 19 want to be provocative, I want it to flow in an evenhanded 20 way. It's to my benefit not to put the witness on edge, 21 although he's probably on edge anyway, given the nature of 22 the case. 23 But we believe, given everything we know, and 24 I'll just show you some of the documents which we will 25 ask about, and I'll as Ms. Braswell and Mr. DiGiacomo, who 14 1 actually will be the subject of some of the questioning, not 2 to discuss this with counsel so as not to tip them off. 3 But these are weekly reports which were sent over 4 by Mickey Kantor and prior to Mickey Kantor, Ron Brown, 5 about our lawsuit. And it shows a very heightened level 6 of concern about having to produce documents to Judge 7 Lamberth. 8 It's very unusual a Secretary of Commerce would be 9 reporting to the President's chief of staff on the production 10 of documents. 11 Nolanda Hill has testified that Leon Panetta 12 and John Podesta instructed Ron Brown, according to what 13 Brown told her, this is Brown's confidant and business 14 partner, that Panetta and Podesta told Brown to obstruct 15 Judge Lamberth's order. This is an affidavit that we have. 16 And the affidavit matches up in time with exactly 17 the time that Brown is communicating with Panetta and Podesta 18 over Judge Lamberth's order. 19 So consequently, we need to know whether Kantor, 20 who has been a very close confidant of the President, going 21 back to Arkansas, who was his campaign manager in 1992, who 22 is now his lawyer in the Whitewater -- excuse me, in the 23 impeachment proceeding, we need to know whether efforts to 24 obstruct our lawsuit were discussed when he was put in as 25 Secretary of Commerce. 15 1 JUDGE FACCIOLA: Discussed between him and the 2 President? 3 MR. KLAYMAN: Him and the President. Obviously, 4 Panetta is the President's representative. 5 Now, this would raise the crime/fraud exception to 6 executive privilege. That's the difficulty. I don't know 7 how to put it forward delicately, but that is at the core of 8 the obstruction in this case, the core of the destruction of 9 evidence, the core of the suppression of evidence, whether he 10 was part of that. 11 JUDGE FACCIOLA: But the question I have and the 12 question that concerns me is while you're certainly free 13 to ask Mr. Kantor about his participation in this, his 14 knowledge of these documents and so forth, isn't it within 15 the scope of executive privilege for the President to have 16 discussions with a person and seek that person's advice? 17 MR. KLAYMAN: Not if it's related to the commission 18 of an ongoing crime. 19 JUDGE FACCIOLA: All right. Well, that's -- all 20 right. 21 Ms. Braswell? 22 MS. BRASWELL: Well, Your Honor, I would simply 23 say that he has no evidence tying anything that Mr. Podesta 24 or Mr. Panetta may have done, they've never even been 25 questioned in this case, to the President, so this is much 16 1 too attenuated for Mr. Klayman to try and claim some kind of 2 exception to the executive privilege. 3 JUDGE FACCIOLA: All right. Based on the proffer, 4 I'm going to sustain the claim of executive privilege, which 5 you are making at this point? 6 MS. BRASWELL: Yes, we are making. Absolutely. 7 JUDGE FACCIOLA: All right. The privilege is 8 sustained, subject to, obviously, a contrary ruling by Judge 9 Lamberth, but I think you've made a sufficient proffer. 10 Please ask the witness to return. 11 (The witness and witness' counsel returned.) 12 BY MR. KLAYMAN: 13 Q Mr. Kantor, when you took over -- during the 14 period leading up to your beginning at the Commerce 15 Department, and I'm going to exclude the President from 16 this question, were you aware of Judicial Watch's lawsuit 17 that you're here on today, the lawsuit which asks for 18 documents concerning whether or not seats on trade missions 19 were being exchanged for campaign contributions and related 20 matters? 21 A I don't think so. If there had been anything in 22 the public press, I may have read it, but I certainly had no 23 awareness of it. 24 Q You were U.S. Trade Representative for a number of 25 years, correct? 17 1 A Yes. 2 Q And the allegations which Judicial Watch had raised 3 concerned international trade matters, correct? 4 A Yes. 5 Q And as part of your duties as the U.S. Trade 6 Representative, you routinely reviewed clips of press 7 releases and press articles about international trade 8 matters, correct? 9 A Yes. 10 Q And the U.S. Trade Representative was a participant 11 in the trade missions that were arranged by Ron Brown, was it 12 not? 13 A I was never a participant in any trade mission 14 organized by Secretary Brown, or anyone else, for that 15 matter, until I was Secretary of Commerce. 16 Q But people on your staff obviously helped plan 17 those trade missions, did they not? People in USTR. 18 A I'm not sure our staff had any substantial or 19 continuing involvement whatsoever with those trade missions. 20 Q You're not sure, but you don't know, correct? 21 MR. ROBBINS: Objection to the form. 22 You're asking him to answer the question, "You're 23 not sure, but you don't know?" 24 MR. KLAYMAN: Let me back up. I'll lay the 25 foundation. 18 1 BY MR. KLAYMAN: 2 Q How many employees, roughly speaking, worked at 3 the U.S. Trade Representative's office when you were Trade 4 Representative? 5 A Two hundred and one. Roughly. 6 Q And the function of the U.S. Trade Representative 7 is to promote international trade, U.S. exports. One of the 8 functions, correct? 9 A Not precisely. That's a function of the Secretary 10 of Commerce. 11 Q Are you saying that the U.S. Trade Representative 12 has nothing to do with exports? 13 A No, I was being very precise. The U.S. Trade 14 Representative is the President's chief advisor on 15 international trade. He is charged with the responsibility 16 of enforcing trade agreements and negotiating trade 17 agreements. Promoting international trade was a function 18 of the Secretary of Commerce. There's a difference. 19 Q There were, however, members of your staff, and 20 I mean the entire U.S. Trade Representative, that were 21 charged with coordinating with the Commerce Department, 22 correct? On trade matters? 23 A Oh, sure. Of course. With the -- absolutely. 24 Q And what divisions of the U.S. Trade Representative 25 were charged with doing that? 19 1 A It depends whether it was sectoral or was it 2 geographic. There could have been many involved with the 3 International Trade Administration in talking about trade 4 matters on particular issues or issues of wide concern. 5 Q And there were members of the U.S. Trade 6 Representative's office, employees, that would provide 7 information to the Commerce Department which the Commerce 8 Department could use to do economic analyses for export 9 promotion, correct? 10 A I don't know what the Commerce Department might 11 have done with that information, but we certainly would have 12 provided what they would have asked for in terms of the 13 current status of trade negotiations, trade agreements, 14 enforcement of trade agreements or other matters which had an 15 impact on their duties. 16 Q And there were members of the U.S. Trade 17 Representative's office who provided information to the 18 Commerce Department for use by the Commerce Department in 19 planning and effecting trade missions, correct? 20 A I have no personal knowledge of any particular 21 information which might have been shared between USTR and 22 Commerce which the Commerce Department may have used in 23 relation to trade missions. However, it would have been -- 24 it would have been appropriate, proper and even necessary for 25 USTR personnel from time to time, when asked, to give 20 1 information to the Department of Commerce, given the close 2 working relationship, which may have been used, but I have no 3 personal knowledge of it in terms of planning trade missions. 4 Q Are you saying unequivocally that no member of the 5 U.S. Trade Representative's office, no employee, provided any 6 information or had any role in any way in trade missions 7 conducted by Ron Brown? 8 MS. BRASWELL: Objection. Asked and answered. 9 MR. ROBBINS: It's asked and answered. It 10 mischaracaterizes -- 11 JUDGE FACCIOLA: Let's see if we can -- 12 MR. KLAYMAN: It wasn't answered. 13 JUDGE FACCIOLA: That's the third time you've 14 quarreled with each other on the record. It's also the last 15 time. 16 Judge Lamberth made it quite clear in his opinion 17 that what was driving him nuts were speaking objections. 18 Please make your objection and wait for my ruling. Treat 19 each other with professional civility that we can expect. 20 All right. Now, thanks to that, I've lost my train 21 of thought. 22 I think what they're trying to get at, Mr. Kantor, 23 is this. Or Secretary -- Mr. Secretary. Mr. Secretary, 24 during the period of time that you were Trade Representative, 25 was there a relationship between the members of your office 21 1 and the members of the Department of Commerce? 2 THE WITNESS: Yes. 3 JUDGE FACCIOLA: All right. And in that 4 relationship -- well, could you describe as best you can what 5 you understood that relationship to be? 6 THE WITNESS: Yes, Your Honor. Thank you. 7 USTR and Commerce are both charged with involvement 8 in U.S. trade matters. Because these matters overlap to some 9 extent, or in some cases to a great extent, there is constant 10 communication. 11 My only hesitation was I wouldn't have known 12 whether or not the information provided going back and forth 13 would have been used specifically to -- to either design or 14 promote a trade mission. I just wouldn't have known that. 15 But there was constant communication, there had to be. 16 BY MR. KLAYMAN: 17 Q But you knew generally, did you not, Mr. Kantor, 18 that the U.S. Trade Representative was trying to be helpful 19 to Commerce in helping them plan and implement Ron Brown's 20 trade missions? 21 A If you're -- if, Mr. Klayman, you're asking me 22 whether or not I might have had some general understanding 23 they may have taken that information and used it for those 24 purposes, maybe, I don't know, but it wasn't a major concern 25 of mine. 22 1 The fact is we had constant communication with 2 the Department of Commerce. Our people who were negotiating, 3 we negotiated 200 trade agreements in just four years, would 4 have certainly been in constant contact with the Commerce 5 Department because they had foreign and commercial service 6 officers who could provide us with information, so therefore 7 what happened to that information inside the department I 8 would have had no knowledge of personally. 9 Q But I'm not even asking you about your personal 10 knowledge as the first question. I'm asking you whether it 11 was the function of the U.S. Trade Representative to assist 12 the Department of Commerce in planning and implementing trade 13 missions. 14 A Not particularly. 15 Q I don't understand what "Not particularly" means. 16 Yes or no. The answer is no? 17 A That's my answer. 18 MR. ROBBINS: I think he's answered the question. 19 I think we can move on. 20 JUDGE FACCIOLA: State that question again, 21 Mr. Klayman, and let me see if I figure out a way out of this 22 morass. Go ahead. Ask it again. 23 BY MR. KLAYMAN: 24 Q Was it not, Mr. Kantor, one of the duties and 25 responsibilities of the U.S. Trade Representative to assist 23 1 the Commerce Department to plan and implement trade missions, 2 in whatever respect, even if it's just providing information? 3 A To the extent the department may have asked for 4 information which was grounded in their need for that 5 information to plan a trade mission, we certainly would have 6 provided it from USTR. 7 If you're asking me if I have particular knowledge 8 of any specific information that might have gone to Commerce 9 as a result of a request that was grounded specifically in 10 asking about a trade mission, I have no personal knowledge of 11 that. 12 Q And that wasn't what I was asking. I was just 13 asking you simply whether or not one of the functions -- 14 A Mr. Klayman, I've answered your question. 15 JUDGE FACCIOLA: Listen to the question. 16 MR. KLAYMAN: You have not answered it. 17 JUDGE FACCIOLA: Let's see if we can get out of 18 this. 19 BY MR. KLAYMAN: 20 Q I'm just asking you whether it was a function of 21 the U.S. Trade Representative during the time that you were 22 Trade Representative to assist the Department of Commerce in 23 any way in helping Commerce plan for and implement trade 24 missions. 25 MS. BRASWELL: Objection. 24 1 JUDGE FACCIOLA: Well, do you understand -- I guess 2 the problem that seems to be dividing you is this: 3 Mr. Secretary, your role as Trade Representative, 4 I suppose, is defined by statute, right? In terms of what 5 you do. The Secretary of Commerce is also at the same time 6 organizing trade missions so that members of our economy can 7 go to foreign nations and talk to people in foreign nations 8 about purchasing our goods. 9 What Mr. Klayman is trying to get at is in your 10 capacity as Trade Representative, was it a major function 11 that you and Secretary Brown had to work together in planning 12 trade missions? 13 THE WITNESS: A major function? 14 JUDGE FACCIOLA: Yes. A major function. 15 THE WITNESS: No. 16 MR. KLAYMAN: Any function. 17 JUDGE FACCIOLA: Any function -- so that those 18 trade missions -- 19 THE WITNESS: Well, I think -- 20 JUDGE FACCIOLA: Just let me finish before you 21 answer. 22 THE WITNESS: Yes, I'm sorry. I'm sorry, 23 Your Honor. 24 JUDGE FACCIOLA: To make as an effective 25 presentation to these people as possible. 25 1 THE WITNESS: Yes. 2 JUDGE FACCIOLA: Because without that information 3 there may not be crucial things that would be conveyed. 4 THE WITNESS: Right. 5 JUDGE FACCIOLA: That's the point. 6 THE WITNESS: I was trying to distinguish, 7 Your Honor, between my personal knowledge and what USTR 8 may have done. 9 JUDGE FACCIOLA: Yes. 10 THE WITNESS: We would have gladly, and I'm sure 11 we did, provide any information possible that was relevant 12 to those missions to make them more effective and I'm sure we 13 did, although I have no personal knowledge of it because it 14 wasn't a major function of USTR. 15 JUDGE FACCIOLA: So be it. 16 MR. KLAYMAN: I'll show you what I'll ask the court 17 reporter to mark as Exhibit 1. 18 JUDGE FACCIOLA: Thank you, sir. Thank you. 19 MR. KLAYMAN: Exhibit 1 is a reprint of an article 20 which appeared on February 20, 1997 in The Boston Globe. 21 The headline is "Ex-DNC chief says he sought access for 22 contributors." It was written by Walter V. Robinson of the 23 Globe staff. He also happens to be their editor. 24 (Kantor Deposition Exhibit No. 1 25 was marked for identification.) 26 1 BY MR. KLAYMAN: 2 Q Mr. Kantor, if you'd like an opportunity to review 3 this document, I'm going to ask you certain questions about 4 it. 5 A Yes, sir. I remember this situation. I remember 6 the article and the situation which prompted it. 7 Q And in this article, it is stated, and I'm reading 8 down on the page, I'm not going to go through the entire 9 article, this is the seventh paragraph on page 1 -- the sixth 10 paragraph, "'On several occasions, the DNC and chairman 11 Fowler asked us at USTR and at Commerce to either meet with 12 or entertain requests from contributors to the Democratic 13 Party. It was our practice not to comply with such 14 requests,' Scher said in an interview. 15 "Specifically, Fowler defended sending a letter, 16 a copy of which was obtained by the Globe, urging Kantor to 17 reserve a seat on a Commerce Department overseas trade 18 mission for a Florida businesswoman who had given almost 19 $40,000 to the Democrats in the previous 30 months. 20 "In response to Fowler's letter, Scher issued an 21 internal memorandum last June 27 objecting to what he called 22 'this type of intervention.'" 23 Let me just ask you, from time to time, while you 24 were U.S. Trade Representative, were there requests made by 25 the Democratic National Committee to have you or anyone at 27 1 USTR recommend participants on trade missions? 2 A Yes. 3 Q And when did that occur? 4 A I don't have the specific dates. There were either 5 two or three. 6 Q Roughly speaking. 7 A Mr. Klayman, I trying -- I really -- '94 and '95 -- 8 you know, I don't think any in '93, but I really wouldn't 9 have any -- I don't have any recollection of the specific 10 date, but there were two or three. 11 Q And this particular individual, a Ms. Parker, you 12 remember that, don't you? 13 A Oh, at the Commerce Department? 14 Q Well -- 15 A Wasn't that -- 16 Q Ms. M.J. Parker of Miami, Florida? 17 A Wasn't that the letter or the note or whatever 18 Chairman Fowler sent to the Commerce Department with regard 19 to -- she was the businesswoman, I think -- 20 Q Right. 21 A And I was Secretary of Commerce at the time? Yes, 22 I do remember that. 23 Q Okay. And these requests that you received from 24 the Democratic National Committee, do you remember the names 25 of the people that wanted to go on the trips? 28 1 A You mean the prior requests I mentioned to you? 2 Q Yes. Yes. 3 A These weren't trips. Excuse me. These weren't 4 trips. 5 Excuse me, Your Honor. May I explain? 6 JUDGE FACCIOLA: Of course. Of course. 7 THE WITNESS: I hope it's responsive, because I 8 think we can get through this rather quickly. 9 JUDGE FACCIOLA: Don't ever hesitate to explain, 10 Mr. Secretary. 11 THE WITNESS: These two or three requests while 12 I was USTR were not for missions, of course, because I had 13 nothing to do with trade missions as USTR. They were for 14 meetings with me as United States Trade Representative. 15 They all were denied. 16 This one incident you're talking about, I'd be 17 happy to answer questions with regard to that or, of course, 18 anything I remember with regard to the others. 19 MR. KLAYMAN: Okay. Let's start with that. 20 THE WITNESS: But there's a separation here. 21 MR. KLAYMAN: Let's start with that. And I'll 22 make a proffer to the Court that to the best of our knowledge 23 we have never received a copy of this letter which apparently 24 was sent by Chairman Fowler with regard to this department 25 trade mission from either the Commerce Department or the 29 1 Democratic National Committee. 2 JUDGE FACCIOLA: I understand. 3 MR. KLAYMAN: And this is one of the documents 4 which we maintain should have been produced. 5 JUDGE FACCIOLA: I understand. 6 BY MR. KLAYMAN: 7 Q If you will explain -- 8 A Explain what? I'm sorry. I apologize. 9 Q You said you wanted to explain this particular 10 instance that I just read to you. 11 A If you want to ask questions about this incident, 12 I'd be happy to answer it, but I'll be -- I think I can get 13 us through this rather quickly. I believe, although I don't 14 think I ever saw the letter at Commerce, there was a letter 15 from Don Fowler to me as secretary which my chief of staff, 16 Peter Scher, reviewed which asked whether or not the woman 17 in question here -- I remember it now, but I didn't remember 18 her name when I walked here, you've refreshed my memory, 19 Ms. Parker, because of her support for the Democratic 20 National Committee could go on a trade mission which was 21 being planned. I believe it was to Asia, although I'm not 22 certain. It could have been to Bosnia. 23 Would you like to me to continue? 24 MR. KLAYMAN: Yes. Go ahead. 25 JUDGE FACCIOLA: Please. 30 1 THE WITNESS: Mr. Scher and I talked about this 2 and agreed that he would communicate to Mr. Fowler not only 3 would she not go on this trip because of this letter, that 4 she would never go on any mission we ever had and we didn't 5 want any more communications from the DNC of this type. 6 BY MR. KLAYMAN: 7 Q Did you put that in writing? 8 A I don't know if Mr. Scher did or not. I just don't 9 know, Mr. Klayman. 10 Q Did you put your request in writing to Mr. Scher? 11 A No. I mean -- no. He -- this was a conversation 12 in my office. It took about 45 seconds. 13 Q And when did that conversation occur, 14 approximately? 15 A Right after receiving the request. I don't know 16 the date. I'm sorry. It would have been in the -- probably 17 the spring or early summer of 1996. 18 Q Was there anyone present during the meeting with 19 Mr. Scher when your views were -- 20 A Oh, I doubt it seriously. 21 Q -- allegedly expressed? 22 A I don't think I used the word allegedly. These are 23 the views expressed. 24 Q Was this letter in your hand at the time that you 25 expressed your views to Mr. Scher? 31 1 A I don't remember. I don't remember. Peter may 2 have just explained to me what the situation was. 3 Q That letter was cc'd on Ron Brown or someone at the 4 Commerce Department? 5 MS. BRASWELL: Your Honor, I'm going to object -- I 6 object to the continuing -- this continuing line of 7 questioning. 8 JUDGE FACCIOLA: Why? 9 MS. BRASWELL: Because it's outside the scope of 10 discovery in this case. 11 JUDGE FACCIOLA: No, but I thought Mr. Klayman was 12 trying to make the point that the existence of this document 13 and the fact he has never gotten it is significant. And it's 14 significant because we get back to the point of the lawsuit 15 which is that there were documents that were in existence 16 that bore on this question of participation in trade missions 17 and yet he was not provided them. And we're in that mess 18 because, Ms. Braswell, of the nature of the search that was 19 done. So it seems to me that's a very legitimate inquiry. 20 Isn't that the heart of the lawsuit? 21 MS. BRASWELL: No, Your Honor, because this 22 particular letter was created after the FOIA requests in this 23 case came in and therefore this letter and any of these 24 documents that Mr. Kantor is testifying to are not at issue 25 in this case. 32 1 JUDGE FACCIOLA: Well -- 2 MR. KLAYMAN: We don't know because we've never 3 seen the letter, but we want to identify it so we can find 4 it, number one, and Mr. Kantor did just testify that he did 5 receive communications in 1994. That was during the period 6 of our FOIA request subject to this suit. 7 JUDGE FACCIOLA: Proceed along those lines. 8 See, that's what troubles me, Ms. Braswell. I've 9 been thinking a lot about this. I take it there are other 10 FOIA requests pending that seek information for '95, '96 and 11 '97. 12 MS. BRASWELL: That's correct, Your Honor. There 13 are two other lawsuits. 14 JUDGE FACCIOLA: And will there be discovery as to 15 each of those? 16 MS. BRASWELL: Absolutely not, as far as we're 17 concerned. And certainly there has been no discovery ordered 18 by Judge Lamberth with respect to those cases, and therefore 19 Mr. Klayman should not be allowed in this case to engage in 20 discovery that pertains to two other cases for which 21 discovery has not been authorized. 22 MR. KLAYMAN: First of all, in all due respect 23 and the spirit of collegiality, Ms. Braswell cannot speak for 24 Judge Lamberth or for yourself when she says "Absolutely 25 not." 33 1 Secondly, Judge Lamberth is considering these 2 issues now. But to the extent that later documents make 3 reference to earlier trade missions, they're certainly within 4 the scope of discovery. 5 JUDGE FACCIOLA: Okay. But please tie them up in 6 that way. 7 Mr. Secretary, if I may, this may sound like 8 Greek or Sanskrit, but in a sense this is a confusing bit of 9 business for all of us, because in a way we're kind of 10 hunting for the snark. That is, by virtue of the search that 11 was done, which is the subject of Judge Lambert's opinion, it 12 is very unclear at this point whether or not the search 13 yielded everything it was supposed to. 14 THE WITNESS: I understand. 15 JUDGE FACCIOLA: So unfortunately we have to take 16 you back in time over events. 17 THE WITNESS: Oh, I understand. I understand. 18 JUDGE FACCIOLA: Which may in your viewpoint not 19 necessarily have generated any documents, but it is a 20 legitimate inquiry subject to Ms. Braswell's objection that 21 you are asked questions about an event and then are asked if 22 it's memorialized. 23 THE WITNESS: I understand. 24 JUDGE FACCIOLA: So if that keeps happening, as 25 it will throughout most of the day, it's not because we're 34 1 crazy, it's because that's what we're obliged to do. 2 Now, Ms. Braswell has objected on the grounds that 3 the FOIA request that is presently before Judge Lamberth 4 which he ruled on in his memorandum opinion only deals with 5 the events up to, I think, October 19, 1994. She has now 6 objected to the inquiry Mr. Klayman has made on the grounds 7 that this article is obviously written about events that 8 transpired thereafter. 9 The problem with that, Mr. Klayman, is that there 10 are other FOIA requests and we don't know what's going to 11 happen. 12 So what I'm going to try to do is to ask you in a 13 sense to do the impossible, to answer a few brief questions 14 about these events to see if they would have any relation to 15 events that occurred before 1994 that were of a similar type. 16 Try that and see how we go. 17 There's no way we can make lapidary judgments in 18 this thing, Mr. Secretary. We're going to have stumble and 19 bumble a bit, but let's see what we can do. 20 Now, Mr. Klayman, I guess it is -- I understand it 21 is your point that you want to make inquiry along these lines 22 as to events which occurred thereafter, after your FOIA 23 request, to see what light they cast on events that occurred 24 before. Is that right? 25 MR. KLAYMAN: Well, both. Your Honor, we don't 35 1 know, for instance, that this letter that's being referenced 2 did not get written in 1994. 3 JUDGE FACCIOLA: All right. Then see if you make 4 some inquiry on that. 5 MR. KLAYMAN: So in fact, Mr. Kantor just testified 6 that he did receive correspondence in 1994. 7 JUDGE FACCIOLA: Okay. All right. 8 BY MR. KLAYMAN: 9 Q Did this particular letter, can you recollect the 10 date that it was written? 11 A Mr. Klayman, let me be very careful here. One, no. 12 Two, I don't believe I ever -- if there was a letter, I 13 don't believe I ever saw it because I think Mr. Scher merely 14 briefed me with regard to this situation. However, there 15 could be a letter, there may not be a letter. I just don't 16 have any personal knowledge of that. 17 Q So you're saying Mr. Scher is the one who would 18 have seen the letter? 19 A Now, we're talking about the letter in 1996 which 20 was the subject of this news article, I think. 21 Q Well, we are talking about that letter, but we 22 don't know definitively that it was 1996, we can't go on the 23 basis of -- 24 A No, I have no idea. I can't help you, Mr. Klayman. 25 I have no idea. 36 1 Q But Mr. Scher would be the one who would know? 2 A Well, presumably, if there was a letter, Mr. Scher 3 might remember the letter and the date, but I don't know that 4 either, of course. 5 Q Where is Mr. Scher today? 6 A Mr. Scher is a trade ambassador at the United 7 States Trade Representative's office. 8 Q So he's still there? 9 A Yes. 10 Q And where would such a letter have been kept and 11 maintained in the U.S. Trade Representative's office? 12 A Now, we're talking -- Mr. Klayman, let me see if I 13 can help you. The letter you're talking about involved -- I 14 was involved as Secretary of Commerce, if there was a letter. 15 Mr. Scher was my chief of staff at the Commerce Department at 16 the time. 17 Let's separate that from what I -- what I -- an 18 answer to a question you asked earlier. There were two or 19 three, I don't remember how many, requests from the DNC 20 while I was USTR, United States Trade Representative, asking 21 for meetings for people who had been helpful to the 22 Democratic National Committee, each of which was rejected, as 23 was the request, whether letter or not, which I do not know, 24 to the Department of Commerce when I was Secretary of 25 Commerce. 37 1 Q Well, I just asked a very specific question. 2 Where would the letter have been stored at USTR? 3 A I do not know. 4 Q Mr. Scher, where was his office in relation to your 5 office? 6 A At where, Commerce Department or USTR? 7 Q At USTR. 8 A USTR? Down the hall. 9 Q And who was his secretary at the time that you 10 worked there? 11 A I can't remember. I'm sorry, I don't remember her 12 name. 13 Q And you had several meetings or conversations a 14 day with Mr. Scher while you were U.S. Trade Representative? 15 A Yes. 16 Q And you are aware that he had a system for 17 maintaining records as your deputy? 18 A Oh, sure. Yes. 19 Q Did you ever give any instructions to Mr. Scher to 20 discard any documents or destroy them? 21 A Absolutely not. 22 Q So to the best of your knowledge, if he had this 23 letter, it would still be at USTR? 24 A Yes, if there were a letter -- if there were 25 letters that came to USTR on the subject matter you are 38 1 trying to probe, they should be there now. 2 Q Was there any system when you were at USTR or 3 anything you've learned of since where letters would be 4 scanned into a computer, correspondence? 5 MS. BRASWELL: Objection. 6 JUDGE FACCIOLA: Refresh my recollection, 7 Mr. Secretary. When were you at USTR? 8 THE WITNESS: January 21, 1993 to April 12, 1996. 9 JUDGE FACCIOLA: In the period of time that you 10 were there prior to 1994, was there such a system of 11 recordkeeping? 12 THE WITNESS: Of scanning? 13 JUDGE FACCIOLA: Yes. When you arrived or -- 14 THE WITNESS: I'm not -- 15 JUDGE FACCIOLA: Let's do it this way. When you 16 arrived, do you recall -- 17 THE WITNESS: I don't believe so because we 18 continually were asking Congress for more money to have a 19 more efficient system, but I could be wrong about that. 20 JUDGE FACCIOLA: Okay. But while you were there, 21 you don't remember a system where -- 22 THE WITNESS: No, I don't, Your Honor. 23 JUDGE FACCIOLA: -- in lieu of keeping a paper 24 copy, you were able to scan it into a computer and keep it on 25 hard disc? Is that right? 39 1 THE WITNESS: I don't remember. Yes, Your Honor. 2 That's correct. 3 BY MR. KLAYMAN: 4 Q Now, since you've left USTR, you have from time to 5 time been in contact with a person or persons who still work 6 there, correct? 7 MS. BRASWELL: Objection. Your Honor, this entire 8 line of questioning about documents at USTR and contacts with 9 people at USTR is outside the scope of discovery. 10 JUDGE FACCIOLA: And that is because? 11 MS. BRASWELL: Because whatever documents existed 12 at USTR are not the subject of this case against the 13 Department of Commerce dealing with documents that existed at 14 the Department of Commerce. 15 JUDGE FACCIOLA: So the search that the Department 16 of Commerce had to undertake did not involve searching any 17 portion of the U.S. Trade Representative's office? 18 MS. BRASWELL: That's correct. 19 JUDGE FACCIOLA: As a matter of statutory design, 20 the Secretary of Commerce and the U.S. Trade Representative 21 are co-equal members of the cabinet? 22 MS. BRASWELL: Yes. 23 JUDGE FACCIOLA: They are entirely separate 24 divisions and departments? 25 MS. BRASWELL: Yes. Yes. So -- 40 1 JUDGE FACCIOLA: Mr. Klayman, in light of that, 2 why is information concerning the U.S. Trade Representative's 3 office relevant, except insofar as it casts light on 4 documents that might exist in the Department of Commerce, 5 which was the subject of the FOIA search which is at issue 6 before us? 7 MR. KLAYMAN: Right. Well, it's relevant on that 8 basis alone in that we're able to try to find the documents 9 that haven't been produced, but it is also a relevant 10 question on at least two other grounds. 11 First, Judge Lamberth has already made a ruling 12 that Judicial Watch is entitled to conduct discovery on 13 documents that were taken out of the department or sent by 14 the department. That's why we're able to question the 15 Democratic National Committee. 16 Secondly, it is a practice with FOIA requests that 17 the agency then contacts other government agencies in which 18 it was in contact. In fact, in this case, we have documents 19 from USTR. We have documents from State Department. So it's 20 relevant on three different bases. 21 JUDGE FACCIOLA: So you're argument goes something 22 along this: while I am restricted in the scope of the FOIA 23 search to the documents that were at Commerce, I am entitled 24 to inquire whether or not documents emanated from an agency 25 and went to Commerce because that's the only way I can figure 41 1 out whether they should have been at Commerce when I got my 2 FOIA response. Is that correct? 3 MR. KLAYMAN: That's right, but also one other 4 factor and that is that the search entails not just the 5 Commerce Department, but other government agencies with which 6 it communicated. 7 JUDGE FACCIOLA: That's right, because the 8 Department of Commerce -- well, how would that work? How is 9 it supposed to work? 10 MS. BRASWELL: May I address that, Your Honor? 11 When a request comes into the Department of 12 Commerce, the Department of Commerce searches the Department 13 of Commerce records. They do not go and send the request to 14 other agencies and say do you have any records. 15 JUDGE FACCIOLA: No, but when they do, at least in 16 my experience in the FOIA cases that I've worked on, and one 17 as recently as a couple of weeks ago, where a FOIA request 18 was made to the Department of State, when the Department of 19 State came across a document that originated, for example, 20 from the National Security Agency or the CIA, it sent that 21 document to National Security and CIA, whose FOIA operators 22 looked at it and then communicated back to the Department of 23 State. 24 MS. BRASWELL: That's correct. They send a copy of 25 it. But the point is it has to be a document at Commerce. 42 1 And while Mr. Klayman can ask whether or not documents were 2 sent by USTR to Commerce because then theoretically they 3 might still be at Commerce, it should be within the relevant 4 time period. 5 The document should have been sent during the 6 time that is covered by his FOIA request and we seem to be 7 covering an entirely different time period dealing with 8 documents at USTR in a time period that's not even relevant 9 to this particular case. 10 MR. KLAYMAN: Your Honor -- 11 MS. BRASWELL: There must be a tie to the 12 Department of Commerce or he's engaging in discovery as to 13 the recordkeeping practices at USTR. 14 MR. KLAYMAN: Your Honor has already made a ruling 15 on that issue earlier. And let me just turn the attention of 16 everyone -- 17 JUDGE FACCIOLA: Really? What did I say? 18 MR. KLAYMAN: Well, what you said is that we may be 19 able through later -- a, we don't know what the date of that 20 document is, okay? Number one. Number two, we may be able 21 to trace back documents that were in existence by references 22 in later documents. 23 JUDGE FACCIOLA: Yes. 24 MR. KLAYMAN: But the second page of this Exhibit 1 25 is very instructive, the third paragraph from the bottom, 43 1 wherein it says, "Scher, in a memorandum to another Commerce 2 official declared" -- "in a memorandum to another Commerce 3 official." So it's a document both at USTR and Commerce. 4 JUDGE FACCIOLA: All right. Well, let's see if you 5 can narrow the scope of your question, Mr. Klayman, to those 6 documents which may have been transmitted by the USTR to the 7 Department of Commerce in the relevant period of time. 8 I think that overcomes the objection, doesn't it? 9 MS. BRASWELL: That's true, Your Honor. If I might 10 note, the paragraph that Mr. Klayman points to on page 2 11 deals with two trade missions that are not at issue in this 12 case. 13 JUDGE FACCIOLA: I understand. Okay. Let's 14 proceed. 15 MR. KLAYMAN: But I take it, Your Honor, I'm still 16 allowed to see whether a later document -- 17 JUDGE FACCIOLA: Why don't you ask the question and 18 we'll see where we go? 19 MR. KLAYMAN: -- refers to an earlier document? 20 JUDGE FACCIOLA: Yes. 21 MR. KLAYMAN: Okay. 22 BY MR. KLAYMAN: 23 Q The question was, Mr. Kantor, whether -- and 24 actually we got off track to some extent, whether you have 25 any knowledge of USTR having put in a scanning system since 44 1 you left. 2 A I have no knowledge of that. 3 MR. KLAYMAN: I'm going to show you what I'll ask 4 the court reporter to mark as Exhibit 2. 5 This is a -- I call it a menu, it's called 6 Democratic National Committee, DNC Managing Trustee Events & 7 Membership Requirements. And on this list, it says what you 8 get if you donate $100,000 as a managing trustee to the 9 Democratic National Committee. Among the various things it 10 lists are annual economic trade missions. 11 (Kantor Deposition Exhibit No. 2 12 was marked for identification.) 13 BY MR. KLAYMAN: 14 Q Have you ever seen this document before? 15 A No. 16 Q Have you ever discussed with anyone the issue of 17 whether or not seats on trade missions were being provided to 18 donors to the Democratic Party? 19 MS. BRASWELL: Objection. 20 JUDGE FACCIOLA: Overruled. 21 THE WITNESS: With anyone? 22 MR. KLAYMAN: Yes. 23 MR. ROBBINS: May I ask, Your Honor, whether the 24 Court understood that last question to include conversations 25 that may have been with counsel? 45 1 MR. KLAYMAN: I'm not asking about conversations 2 with Mr. Robbins. 3 MR. ROBBINS: Because I could have sworn the word 4 was "anyone." 5 JUDGE FACCIOLA: Counsel, if you would like a 6 second to step outside with the witness and talk about how he 7 wants to shape that question and what objections you wish 8 to make, then I will be glad to give you some to do that. 9 MR. ROBBINS: No, I'm happy for him to answer 10 so long as it's understood that it doesn't embrace 11 attorney-client conversations. 12 JUDGE FACCIOLA: Well, okay. 13 Mr. Secretary, you appreciate, of course, that 14 you have an attorney-client privilege. If you have had 15 conversations with your counsel about these things, that 16 would be included in the universe of people. I'm sure 17 that's not what Mr. Klayman is inquiring about. 18 Certainly you have a right to assert the 19 attorney-client privilege at any time with reference to those 20 conversations, but with people with whom you have no 21 privilege, did you ever have such conversations? 22 THE WITNESS: Would you ask the question again? 23 Because it was so broad and ambiguous, I'm not sure what 24 you're talking about. I want to answer the question, I just 25 don't know what you're driving at. 46 1 BY MR. KLAYMAN: 2 Q The question is very simple. Have you ever 3 discussed with anyone whether or not seats on trade missions 4 were being provided to contributors to a political party? 5 MS. BRASWELL: Objection. Your Honor, may I state 6 the basis for my objection? 7 JUDGE FACCIOLA: Certainly. 8 MS. BRASWELL: He uses the word "trade missions." 9 He doesn't use the word "Department of Commerce trade 10 missions" and therefore it is a vague and ambiguous question 11 as to what he's referring to. 12 JUDGE FACCIOLA: Does anybody else in the 13 government have trade missions? 14 MS. BRASWELL: I don't know whether or not the 15 Democratic National Committee had something that they called 16 trade missions. 17 MR. KLAYMAN: But, Your Honor -- I'm sorry. 18 JUDGE FACCIOLA: All right. Let me see if I can 19 help you. 20 Mr. Secretary, do you recall any discussions with 21 anyone other than your counsel about trade missions which 22 were conducted as official government functions of the United 23 States? 24 THE WITNESS: While I was Secretary of Commerce? 25 Yes. 47 1 JUDGE FACCIOLA: And when you were USTR, did you 2 have any such discussions? 3 THE WITNESS: Not in the way that Mr. Klayman -- 4 JUDGE FACCIOLA: Don't worry about the way he's 5 doing it. Just answer the question. 6 THE WITNESS: No. No. 7 JUDGE FACCIOLA: He'll follow-up if it's necessary. 8 THE WITNESS: No. We're talking about trade 9 missions, not in terms of who went on trade missions. 10 JUDGE FACCIOLA: But you had general -- obviously, 11 you had general discussions about trade missions all the 12 time. 13 THE WITNESS: Oh, yes. Absolutely. Of course. 14 JUDGE FACCIOLA: Okay. Now, I take it, 15 Mr. Klayman, you'll follow up. 16 MR. KLAYMAN: Well, let me back up. Let me ask 17 Your Honor for an instruction here. 18 What Ms. Braswell did in the way she objected to 19 that question, that was a speaking objection. 20 JUDGE FACCIOLA: I understand. 21 MR. KLAYMAN: And that is the problem that we 22 had with Mr. Hegyi, because it provides information to the 23 witness and I ask that she not -- that the Court instruct her 24 not to do it again. 25 JUDGE FACCIOLA: All right. Well, the Federal 48 1 Rules of Evidence require that the basis for the objection be 2 stated. I think that's usually done by simply saying 3 objection, relevance or hearsay. 4 MR. KLAYMAN: Right. 5 JUDGE FACCIOLA: If I don't understand at that 6 point what the position is, I will ask you for additional 7 information. But if you could object in the way you would 8 in a courtroom, I think it would be a little better for 9 everyone concerned. 10 So it would be something like "objection, 11 privileged" or "objection, hearsay" or "objection, 12 irrelevant." That will avoid the objection that Mr. Klayman 13 is making to your objection. That way I won't have to rule 14 on the objection to the objection to the objection. 15 Probably at this point, Mr. Secretary, you're very 16 happy you went into corporate law. 17 THE WITNESS: Yes, sir. 18 BY MR. KLAYMAN: 19 Q Let me see if I can ask the question in a different 20 way that would elicit the response I'm seeking. 21 Have you ever discussed with anyone from 1992 to 22 the present whether or not individuals who went on Commerce 23 Department trade missions donated money to the Democratic 24 National Committee or the Clinton-Gore campaign? Other than 25 your counsel, Mr. Robbins. 49 1 A When you ask it in that way, no. 2 Q Well, what did you discuss? 3 MR. ROBBINS: Objection to the form. 4 MS. BRASWELL: Objection. 5 THE WITNESS: Let me just -- with all due respect, 6 let me just try to help here because we'll be here all day. 7 When I became Secretary of Commerce and we were 8 planning a trade mission, I wanted to ensure the procedures 9 and process had no political involvement whatsoever. I had 10 people who were designing those missions come in to me and 11 explain how people were chosen, not the individuals, but how 12 people were chosen. 13 Mr. Klayman, I'd like to answer your question. 14 MR. KLAYMAN: Sure. Go on. 15 THE WITNESS: I wanted to make it clear that, 16 one, I didn't want any involvement, as they explained to 17 me Secretary Brown didn't, in choosing anyone to go on a 18 mission; two, I wanted no political considerations to be used 19 in choosing people; three, I wanted the people chosen to be 20 relevant to the mission involved. And that's the way it 21 worked. 22 Now, to that degree I had discussions, but never -- 23 the implication of your question -- and let me -- I'm just 24 trying to get through this quickly -- is did I know nor did I 25 ask anyone to find out or was I aware of or did I have any 50 1 indication anyone chosen on any trade mission which I had any 2 knowledge of gave money to any political party or candidate, 3 the answer is no. 4 MR. KLAYMAN: Well, that wasn't my question, but -- 5 THE WITNESS: You could have fooled me. 6 BY MR. KLAYMAN: 7 Q My question was whether you ever had conversations 8 with anyone, let's try to make it a little bit narrower, 9 while Ron Brown was Secretary of Commerce, that donors to the 10 Democratic Party and/or the Clinton-Gore campaign were being 11 taken on trade missions? 12 A Not that I can recall. 13 Q You're saying you don't remember, not a yes or a 14 no? 15 A I said not that I can recall. 16 Q Which -- I wish to be -- just to get it clear on 17 the record, it's not that you're saying no, it's you're 18 saying you can't -- you have no memory of that? 19 MR. ROBBINS: I think the answer has been given 20 twice, Your Honor. I wonder if we could move on. 21 JUDGE FACCIOLA: Well, Mr. Secretary, you want it 22 to be understood that as you sit here that you cannot 23 remember any such conversations. 24 THE WITNESS: I can't recall any conversation, but 25 I'm trying to be careful, Your Honor. 51 1 JUDGE FACCIOLA: You have every right be careful, 2 Mr. Secretary. 3 THE WITNESS: I respect this process and I don't 4 want to get into a situation that there might have been a 5 fleeting conversation and -- and -- and it comes to someone's 6 attention and I have given an answer that's not correct. I 7 just can't recall. 8 JUDGE FACCIOLA: So what you're saying today is you 9 have no independent recollection as you sit here of such a 10 discussion. 11 THE WITNESS: That's right. 12 JUDGE FACCIOLA: There is, however, a possibility 13 that there was such a discussion. 14 THE WITNESS: Of course. 15 JUDGE FACCIOLA: But as you sit there, you do not 16 remember any such discussion. 17 THE WITNESS: Thank you, Your Honor. 18 JUDGE FACCIOLA: You're welcome, Mr. Secretary. 19 BY MR. KLAYMAN: 20 Q Excluding the President of the United States, 21 for which there is a question pending and a ruling pending 22 which we will in appropriate ways seek to have clarified, 23 have you ever had a conversation with anyone in the White 24 House about Judicial Watch's lawsuit, the one you're here on 25 today? 52 1 A I don't think so, but I need a clarification, if 2 I could just ask a question. I'm not trying to avoid -- 3 JUDGE FACCIOLA: Maybe the best answer, 4 Mr. Secretary, is speak with your counsel. 5 THE WITNESS: Well, I don't even know -- I need to 6 ask a question because I think my counsel won't even know the 7 answer to this question. 8 JUDGE FACCIOLA: Take a moment and speak to your 9 counsel. 10 THE WITNESS: Okay. 11 (The witness conferred with counsel.) 12 THE WITNESS: Not with regard to this lawsuit. 13 BY MR. KLAYMAN: 14 Q You were talking about another Judicial Watch 15 lawsuit? 16 A No. Not with regard to any Judicial Watch lawsuit. 17 Q Did you ever discuss the issue of taking donors on 18 trade missions with anyone at the White House? 19 A No. 20 Q Have you ever discussed the issue of taking donors 21 on trade missions with anyone in the Clinton administration? 22 MS. BRASWELL: Your Honor, I assume that all these 23 questions do not refer to the President or any communications 24 with the President. 25 JUDGE FACCIOLA: I think that was in the 53 1 introduction and that is our mutual understanding. 2 THE WITNESS: State that -- I'm sorry, I lost my 3 train of thought. I'm sorry. 4 BY MR. KLAYMAN: 5 Q Have you ever discussed the issue of taking donors 6 on trade missions with anyone in the Clinton administration? 7 JUDGE FACCIOLA: Except the President himself. 8 THE WITNESS: No, but I may have discussed with 9 friends who are also colleagues in the administration my 10 anger and dismay at the communication received from the DNC 11 with regard to the issue which was in that -- I think the 12 Boston Globe article, Exhibit 1, because I was so upset over 13 it. But they were conversations not dealing with policy or 14 practice, but only -- I'm certain because I was concerned 15 about it and I may have mentioned it to other people in the 16 administration. 17 BY MR. KLAYMAN: 18 Q And who are those other people? 19 A I don't recall. I'm just trying to be helpful, 20 Mr. Klayman. I don't remember. 21 Q Given the fact that you can't recall, let me ask 22 you in another way. Given what your functions were, your 23 duties and responsibilities, Trade Representative, given the 24 fact that this is discovery, it's not trial yet, who would 25 you likely have been discussing that with? 54 1 A Oh, now you're asking about USTR. 2 Q No, anywhere. I'm just saying -- 3 A No, no, no -- 4 Q I'm just saying you say you can't recall the 5 specific names, but who is it most likely that you did 6 discuss this with, given your duties and responsibilities in 7 the Clinton administration? 8 A At what point in time? 9 Q At any point. 10 A Peter Scher certainly would have discussed it 11 because he had the same concerns as I had. Previous to that 12 time, Tom Nides, who was my chief of staff. 13 Q How is that spelled? 14 A N-i-d-e-s. 15 Q Where is he today? 16 A At Fannie Mae. Federal National Mortgage 17 Association. 18 Q Here in Washington? 19 A Yes. If there were others, I can't recall who I 20 might have -- just because of my concern over the kind of 21 requests I received, which I testified to earlier this 22 morning. 23 Q You would have discussed it, perhaps, with 24 Ron Brown? 25 A No. 55 1 Q You would have discussed it with Hillary Clinton? 2 A No. 3 Q Have you had a chance to review the testimony of 4 Nolanda Hill in this case? 5 A No. 6 Q Did you ever read anything about it? 7 A Casually. 8 Q Where did you read about it? 9 A In the newspaper. 10 Q And you read that Nolanda Hill testified that 11 Ron Brown told her that it was Hillary Clinton who devised 12 the scheme to sell seats on trade missions for campaign 13 contributions, correct? 14 A In fact, I have never read that. That doesn't mean 15 it didn't appear, I just never read it. 16 Q Okay. Did you ever discuss trade missions with 17 Hillary Clinton? 18 A No. 19 Q Do you have any knowledge as to whether or not 20 Mrs. Clinton was the one who had the idea of selling seats on 21 trade missions for campaign contributions? 22 A No. 23 MS. BRASWELL: Objection. 24 JUDGE FACCIOLA: Overruled. 25 THE WITNESS: No. 56 1 BY MR. KLAYMAN: 2 Q Did you read, when you read those articles about 3 Nolanda Hill's testimony, that she testified that the 4 President knew and approved of that scheme proposed by 5 Hillary Clinton? 6 MS. BRASWELL: Objection. 7 JUDGE FACCIOLA: Sustained. 8 MR. KLAYMAN: I just asked whether he had 9 knowledge, not whether he had a discussion. 10 JUDGE FACCIOLA: The testimony speaks for itself. 11 What difference does it make if he -- 12 MR. KLAYMAN: Well, if he discussed it with 13 somebody else. 14 JUDGE FACCIOLA: Well, if he didn't have any 15 knowledge of it, why would he discuss it? 16 MR. KLAYMAN: Well, I didn't get the answer. 17 JUDGE FACCIOLA: Did you have knowledge of that 18 testimony, what the woman said about that? 19 THE WITNESS: No. None. 20 JUDGE FACCIOLA: Did you ever, for reasons that I 21 can't quite figure out, discuss that possibility with anyone 22 else? 23 THE WITNESS: No. 24 MR. KLAYMAN: Well, can I get a little more 25 specific, Your Honor? 57 1 JUDGE FACCIOLA: Certainly. 2 BY MR. KLAYMAN: 3 Q Did you ever discuss trade missions with Harold 4 Ickes, just trade missions in general? 5 A No, not that I can recall. I'm almost certain 6 I didn't. 7 Q At any time, you never discussed any trade missions 8 with Harold Ickes? 9 A I don't believe so, except that after I left 10 office, in private life we may have discussed your lawsuit 11 in general. 12 Q What did you discuss with Mr. Ickes about our 13 lawsuit? 14 MS. BRASWELL: Objection. 15 THE WITNESS: This is 1997 or 1998 -- 16 MS. BRASWELL: Objection. 17 JUDGE FACCIOLA: Why would that be relevant to the 18 documents at the Department of Commerce? 19 MR. KLAYMAN: Well, because Mr. Ickes -- if you 20 would like me to lay the foundation, I'll be happy to do 21 that. 22 JUDGE FACCIOLA: You'd better. 23 MR. KLAYMAN: Okay. 24 I'll show you what I'll ask the court reporter to 25 mark as Exhibit -- 58 1 THE COURT REPORTER: 3. 2 MR. KLAYMAN: -- 3. 3 Exhibit 3 is a memorandum of May 5, 1994 prepared 4 well before Judicial Watch's FOIA requests, to Ann Cahill 5 from Martha Phipps re: White House Activities. It emanates, 6 Your Honor, from the files of Harold Ickes. It was produced 7 by Mr. Ickes at the Senate Government Affairs Committee, the 8 Thompson committee. It was referenced during those hearings 9 that were televised nationally. 10 (Kantor Deposition Exhibit No. 3 11 was marked for identification.) 12 JUDGE FACCIOLA: Yes. Okay. 13 MR. KLAYMAN: Okay. And in this memorandum, 14 it states, "In order to reach our very aggressive goal of 15 $40 million this year, it would be very helpful if we could 16 coordinate the following activities between the White House 17 and the Democratic National Committee: 18 "4. Invitations to participate in official 19 delegation trips abroad. Contact Alexis Herman." 20 BY MR. KLAYMAN: 21 Q Have you ever seen this document before? 22 A No, sir. 23 Q Did you know of its existence before today? 24 A No, sir. 25 Q Had you ever heard any reference to this document 59 1 in any television, radio or written publication? 2 A I may have, but I don't recall. 3 MR. KLAYMAN: Your Honor, this is why we need to 4 ask whether or not he had discussions with Ickes about our 5 lawsuit because Ickes, according to Nolanda Hill, implemented 6 the scheme to sell seats -- 7 JUDGE FACCIOLA: Those discussions could be about 8 anything. Let's see if we can get it narrowed down. 9 In those conversations that you had with 10 Ickes about this lawsuit, did you discuss with Mr. Ickes 11 the possibility of documentation at either the Trade 12 Representative's office or the Department of Commerce with 13 reference to this request that certain persons be invited to 14 participate in official delegations? 15 THE WITNESS: No, sir. Let me make it clear, these 16 conversations were in 1997 or 1998 that I'm referring to, 17 when we were both in private life. 18 JUDGE FACCIOLA: Well, basically, again, we're in 19 that possibility of trying to figure out -- 20 THE WITNESS: Yes, I understand. I understand. 21 The answer is no, sir. 22 JUDGE FACCIOLA: So the analysis would go something 23 along the lines that if you had a discussion with that 24 gentleman and that gentleman indicated his concern that 25 documents existed, that would bear on the issue -- 60 1 THE WITNESS: Yes. No, sir. We never discussed 2 documents. 3 JUDGE FACCIOLA: Okay. 4 MR. KLAYMAN: Your Honor, the reason that 5 discussing our lawsuit is relevant is because the issues 6 of -- what concerned Judge Lamberth and the Court with 7 regard to this lawsuit is in terms of the likelihood of 8 obstruction go beyond just merely the existence of documents. 9 It goes into false testimony. It goes into issues of 10 whether or not documents were provided timely. It goes into 11 a lot of other issues. 12 So -- and he has no privilege in those discussions 13 with Mr. Ickes, so we would ask Your Honor if we could just 14 ask generally what was discussed about our lawsuit. 15 MS. BRASWELL: Your Honor -- 16 MR. KLAYMAN: And it may go into credibility and 17 truthfulness and veracity in terms of his testimony. 18 MS. BRASWELL: Your Honor, same objection. 19 JUDGE FACCIOLA: Whose truthfulness and veracity? 20 Mr. Ickes? 21 MR. KLAYMAN: Mr. Kantor's. 22 JUDGE FACCIOLA: Why would his conversation with 23 Ickes -- 24 MR. KLAYMAN: I'm not making any accusations, 25 Your Honor. 61 1 JUDGE FACCIOLA: Wait a minute. Why would -- let's 2 see if we can analyze this, as we're obliged to under the 3 Rules of Evidence. 4 Why would the conversations the witness had with 5 Ickes bear on the credibility of the witness' testimony? 6 MR. KLAYMAN: All right. And this is not 7 accusatory in any way, but in essence we know, for instance, 8 that Mr. Kantor had been requested to be deposed for several 9 years, almost from the start of when discovery began. 10 And we also know that -- well, what we know is that 11 there could have been a discussion similar to the discussion 12 which Ron Brown claims to have had with Panetta to delay 13 production of documents in the case, to not be truthful, and 14 Ickes could have said something to Mr. Kantor, if you're ever 15 called to testify, don't tell what happened. 16 JUDGE FACCIOLA: Okay. 17 During the course of these conversations that you 18 had with Mr. Ickes, did you and he discuss what would be or 19 what should be the appropriate responses by persons who were 20 called to depositions in this case? 21 THE WITNESS: No, sir. 22 JUDGE FACCIOLA: Did you have any discussions with 23 Mr. Ickes with reference to what the level of cooperation 24 with this lawsuit should be? 25 THE WITNESS: No, sir. 62 1 JUDGE FACCIOLA: Did Mr. Ickes express any concern 2 that if this lawsuit were to proceed that it would be 3 embarrassing to him? 4 THE WITNESS: No, sir. 5 JUDGE FACCIOLA: Did you express during those 6 conversations with Mr. Ickes that if this lawsuit were 7 to continue and be prosecuted it would be embarrassing to 8 you? 9 THE WITNESS: No, sir. 10 JUDGE FACCIOLA: Did you and he discuss any 11 possibility that you would take any action to slow down the 12 prosecution of this lawsuit in a way that it would not reach 13 its ordinary culmination? 14 THE WITNESS: Absolutely not. 15 MR. KLAYMAN: Your Honor, I commend Your Honor for 16 asking a lot of questions here, but then it begs the issue 17 then why was our lawsuit discussed? And we should be able to 18 get an answer to that. 19 JUDGE FACCIOLA: I'm going to ask you that. Why 20 did you discuss the lawsuit? Do you recall why you discussed 21 the lawsuit? 22 THE WITNESS: As I can recall, and believe me, 23 I am not -- this is not an accusation, as you say, or an 24 allegation -- the only thing I can remember is we were 25 concerned it was a waste of time and politically motivated. 63 1 MR. KLAYMAN: Well, there we have the issue that 2 I was trying to get to, Your Honor, and there we have the 3 potential bias in the testimony. 4 JUDGE FACCIOLA: That's true. Okay. Now, you've 5 explored the witness' bias, right? 6 MR. KLAYMAN: Right. But -- 7 JUDGE FACCIOLA: And now -- 8 MR. KLAYMAN: I have a couple of follow-up 9 questions. 10 JUDGE FACCIOLA: You could argue that the 11 witness -- at a later date, if you wish -- that the witness 12 was not being truthful because he thought that the lawsuit 13 was a waste of his time and politically motivated. 14 MR. KLAYMAN: Well -- 15 JUDGE FACCIOLA: And whether or not a judge ever 16 permits that kind of a bias inquiry to be made on 17 cross-examination remains to be seen. 18 MR. KLAYMAN: If I can then ask just a couple -- 19 let me throw them out, Your Honor can decide whether I can 20 ask them -- 21 BY MR. KLAYMAN: 22 Q Why did the issue even come up as to Larry Klayman 23 and Judicial Watch bringing a lawsuit that was politically 24 motivated and a waste of time? Why did that issue even come 25 up? 64 1 A I can't recollect. It was in the course of 2 probably a much lengthier conversation about many other 3 issues that have no relevance whatsoever to what we're doing 4 this morning. And there might have been some reference to 5 it. I can't remember. It didn't seem very important at the 6 time and, frankly, it seems most unimportant at this time. 7 Q So you believe this lawsuit is a waste of time? 8 MR. ROBBINS: Objection. 9 JUDGE FACCIOLA: I don't know why his belief 10 is important. 11 BY MR. KLAYMAN: 12 Q That's your frame of -- that's your state of mind, 13 as of today, as you sit here, it's a waste of time? 14 MR. ROBBINS: Objection. 15 JUDGE FACCIOLA: Well, no, I'm going to overrule 16 your objection because it bears at least generally on bias. 17 Mr. Secretary -- 18 Well, as you know, inquiry can always be made of a 19 witness whether he is biased and has a reason to give a 20 certain testimony he gives. Since this is discovery and the 21 standard is broader than it is at trial, I will permit the 22 inquiry. 23 Have you formed an opinion about this lawsuit? 24 Do you have an opinion about this lawsuit? 25 THE WITNESS: About the substance of it? 65 1 JUDGE FACCIOLA: Yes. 2 THE WITNESS: Or about the way it's being 3 conducted? 4 JUDGE FACCIOLA: Both. 5 THE WITNESS: Both is compound. I have no concern 6 about the substance because everyone has a right to file 7 just about anything they wish, but about the way it's being 8 conducted, sure. I think it's gone on way too long and has 9 wasted a lot of time. And I do believe it's politically 10 motivated. But my views are not very important, frankly, 11 with regard to that. I'm just a witness here. 12 JUDGE FACCIOLA: But to complete that inquiry, have 13 your views in any way affected your testimony? 14 THE WITNESS: No. Of course not. 15 JUDGE FACCIOLA: Thank you. 16 BY MR. KLAYMAN: 17 Q Well, you are aware that we're here pursuant to a 18 court order, correct, Mr. Kantor? 19 A Sure. 20 Q Okay. Are you taking issue with the Court's 21 rulings in this case? 22 A Absolutely not. And that's why I'm here. We 23 didn't challenge the ruling. I'm doing the best I can. 24 I'll answer every question you have truthfully and fully. 25 But you asked me a question, I gave you the answer. I'm 66 1 sorry if you don't like the answer. 2 Q I don't like or dislike the answer, I just want 3 an answer. But the question is are you saying that Judge 4 Lamberth is politically motivated in this case in issuing 5 orders? 6 MS. BRASWELL: Objection. 7 THE WITNESS: No. No. No. 8 JUDGE FACCIOLA: That's sustained. 9 BY MR. KLAYMAN: 10 Q Is that your point? 11 MS. BRASWELL: Objection. 12 MR. ROBBINS: Your Honor has already ruled. 13 There's no pending permissible question, Mickey. Just wait 14 for the next one. 15 BY MR. KLAYMAN: 16 Q Are you saying that the Court is wasting your time? 17 MS. BRASWELL: Objection. 18 MR. ROBBINS: Same objection. 19 JUDGE FACCIOLA: Sustained. 20 MR. ROBBINS: There's no pending question. 21 MR. KLAYMAN: I'll show you what I'll ask the court 22 reporter to mark as Exhibit 4. 23 Exhibit 4 is a press release issued by the 24 Department of Commerce during the period that you were 25 Secretary of Commerce dated November 1, 1996 by Maria 67 1 Cardona, a Commerce Department statement. 2 (Kantor Deposition Exhibit No. 4 3 was marked for identification.) 4 BY MR. KLAYMAN: 5 Q Have you ever seen this press release before? 6 A I don't believe so. 7 Q Were you aware of its being drafted at the time 8 that it issued on November 1, 1996? 9 MS. BRASWELL: Objection. 10 JUDGE FACCIOLA: What's the nature of your 11 objection, Ms. Braswell? 12 MS. BRASWELL: This appears to be outside the scope 13 of discovery dealing with this case. 14 JUDGE FACCIOLA: But I thought Mr. Klayman's point 15 was pursuing possible bias of the witness. 16 MR. KLAYMAN: Yes. 17 JUDGE FACCIOLA: Because, as I understand it, he's 18 going to draw our attention to the fact that he characterizes 19 this lawsuit in a certain way. 20 It would seem to me to be at least a brief 21 legitimate inquiry to ask if the secretary was aware that in 22 the name of the Department of Commerce when I take it -- 23 Mr. Secretary, am I right, you were still 24 secretary on November 1, 1996? 25 THE WITNESS: Yes. Yes, sir. 68 1 JUDGE FACCIOLA: That an assertion was made about 2 the nature of this lawsuit. So I will permit some inquiry 3 in terms at least as to the secretary's knowledge of the 4 existence of the document. 5 BY MR. KLAYMAN: 6 Q Were you aware of the drafting of this press 7 release? 8 A No. 9 Q Now, Maria Cardona worked under Anne Luzzatto at 10 the time, correct? Correct? 11 A Yes, sir. 12 Q And Anne Luzzatto had moved from the U.S. Trade 13 Representative to the Commerce Department when you also moved 14 from USTR to Commerce, correct? 15 A Yes, sir. 16 Q And what was Ms. Luzzatto's position at the U.S. 17 Trade Representative office? 18 A She was the director of communications or press 19 secretary. 20 Q Press secretary. And that's the role she assumed 21 at the Commerce Department. 22 A Yes, sir. 23 Q And the reason you put her at the Commerce 24 Department is because you wanted to have your own press 25 secretary when you were Secretary of Commerce, correct? 69 1 Somebody you were familiar working with? 2 A Yes, and because she's a very talented individual. 3 Q Right. And, in fact, you had a very close working 4 relationship with her, both at USTR and at Commerce, correct? 5 A Yes, sir. 6 Q And, in fact, this press release was actually 7 drafted at the direction of Ms. Luzzatto, was it not? 8 A I have no idea. 9 Q Did Ms. Luzzatto, Ms. Cardona or anyone in the 10 Commerce Department's press office discuss with you the 11 issuance of a press release with regard to Judicial Watch's 12 lawsuit that you're here on today? 13 A I don't recall. 14 Q Did you ever see a draft of the press release 15 before it was finalized? 16 A Not that I can recall. 17 Q Now, in the first page of this press release, it 18 says -- let me back up. 19 You are aware that John Huang was deposed in this 20 lawsuit on October 29, 1996, correct? 21 A No. 22 Q Roughly speaking. 23 A No, I'm not aware. I'm sorry. 24 Q Okay. Well, he was. In any event, in the first 25 paragraph, it states, the last two sentences, "Despite the 70 1 massive amount of material, Judicial Watch has failed to 2 present any evidence to support its reckless allegations that 3 the Department gave seats on these trade missions as a reward 4 for political contributions. This has not, however, caused 5 Judicial Watch to cease its reckless and unsubstantiated 6 charges." 7 At paragraph three, it states, "The Department 8 treated Judicial Watch no differently than the hundreds 9 of other requestors that submit FOIA requests to the 10 Department, including many reputable news organizations 11 which also requested information on the trade missions. 12 Only Judicial Watch, for partisan political purposes, has 13 contended that the Department willfully withheld documents." 14 You agree with that statement, don't you? 15 A I stand behind it. I was Secretary of Commerce. 16 It was issued while I was the secretary and, of course, I 17 would stand behind it. 18 Q Then it states in the second paragraph from the 19 bottom, "John Huang, a former Commerce official, has now been 20 thrust into this lawsuit. Mr. Huang had absolutely nothing 21 to do with the FOIA matter except that he, like scores of 22 others, signed a statement that he had searched his files for 23 documents responsive to the Judicial Watch FOIA request. The 24 questions about his fundraising activities after he left the 25 Department of Commerce have nothing to do with this lawsuit." 71 1 Do you agree with that statement? 2 A I have no personal knowledge and wouldn't have 3 any personal knowledge of Mr. Huang or any involvement he 4 may or may not have had and I guess -- it says "Further, 5 Judge Lamberth affirmed the Department's position," it 6 appears, "in his latest order where he found that John Huang 7 had little knowledge of the issues in Judicial Watch's 8 lawsuit and he refused Judicial Watch's request to continue 9 an oral deposition of Mr. Huang." 10 The fact is I wouldn't have had personal knowledge 11 of this because Mr. Huang left the department before I was 12 there. 13 Q Well, that wasn't my question. Now, when you were 14 at the Commerce Department, and before when you were at USTR, 15 was it not your practice for Ms. Luzzatto to show press 16 releases to you before they were sent out? 17 A In most cases, not all. 18 Q Now, do you know of any instance when you were at 19 the U.S. Trade Representative's office of the U.S. Trade 20 Representative having issued a press release criticizing a 21 public interest group for having started a politically 22 motivated case? Did that ever happen at USTR? 23 A No. 24 Q That's very unusual, correct? To criticize a 25 private entity for political motivation in looking into 72 1 government conduct? 2 A I don't know if it's unusual or not, I couldn't 3 testify to that, but it didn't happen while I was the United 4 States Trade Representative. 5 Q Do you know of any instance while you were 6 Secretary of Commerce where any other public interest group 7 such as Public Citizen or Center for Public Integrity was 8 criticized for looking into government conduct through a 9 Department of Commerce press release? 10 A I have no personal knowledge. 11 Q So this was a very unusual press release, was it 12 not? 13 A I couldn't -- 14 Q Given ordinary procedures at the Commerce 15 Department. 16 A I can't -- I can't comment whether it's unusual or 17 not unusual. It is what it is. 18 Q And given the fact that this had not happened at 19 USTR, criticism of a public interest group that is a watchdog 20 into government conduct, given the fact that you have no 21 knowledge of it having occurred at the Commerce Department 22 for anyone other than Judicial Watch, wouldn't it have been 23 proper for Ms. Luzzatto to have shown this to you before it 24 issued? 25 A She may have; I just don't recall. 73 1 Q And, in fact, this press release issued, as it says 2 in the right-hand corner, from the Office of the Secretary, 3 correct? 4 A I don't know if it says it issued or that's where 5 the document was obtained. I just don't know what that 6 means. I'm sorry. 7 This does not look like something that was normally 8 placed on the -- on press releases that came from either 9 Commerce or USTR, so I'm -- I just don't -- I'm a little 10 confused here. 11 This looks -- because it blots out part of the 12 heading -- I think this is because the document came from 13 the Office of the Secretary, not because -- not because it 14 was on there when the release was issued. But you would 15 know better than I, Counsel. 16 Q The press department of the Commerce Department is 17 part of the Office of the Secretary, correct? 18 A I think so, yes, sir. 19 Q Okay. And consequently, when press releases issue, 20 they are issued under the authority of the Office of the 21 Secretary, correct? 22 A There's no reason to argue about this. Of course 23 they are. And whether that stamp was there or not is really 24 irrelevant. 25 Q So consequently by sending this out -- 74 1 A Yes. 2 Q -- on behalf of the Office of the Secretary -- 3 A Yes. 4 Q -- it had your endorsement, correct? You were 5 Secretary of Commerce. 6 A Three questions ago I said that, that I stood 7 behind this. 8 Q And you still stand behind it. 9 A I said I stood behind it. I am no longer at the 10 Department of Commerce. 11 Q Is there anything in this press release you want to 12 correct today? 13 A No. In fact, I think it's very well done, 14 including "Under departmental guidelines," it says, "the 15 factors the Department considers in selecting participants 16 for trade missions include whether companies offer goods or 17 services appropriate for the regions and industry sectors 18 involved in a given trade mission and the degree to which 19 companies have done preparatory work or have established 20 themselves in the foreign market," which is absolutely 21 correct. And those are the only criteria. 22 Q And that's the only thing in the press release you 23 still stand behind? 24 A I stand behind it as an individual, as a private 25 citizen, but as secretary when it was issued, I stand behind 75 1 the entire press release. 2 Q No. What I'm asking you is whether there's 3 anything in here that as of today you believe is incorrect or 4 improper. 5 MS. BRASWELL: Objection. 6 JUDGE FACCIOLA: Just let him ask that question and 7 then we're moving on. 8 Is there anything in there you wish to correct, 9 Mr. Secretary? 10 THE WITNESS: No. 11 JUDGE FACCIOLA: Let's move on. 12 MR. KLAYMAN: I'll show you what I'll ask the court 13 reporter to mark as -- 14 THE COURT REPORTER: 5. 15 JUDGE FACCIOLA: Excuse me. 16 Madam Reporter, do you need a break? 17 THE COURT REPORTER: Well, whenever. 18 JUDGE FACCIOLA: Mr. Secretary, would you like a 19 quick break? 20 THE WITNESS: No, I'm fine. 21 JUDGE FACCIOLA: Well, the judge does. That's the 22 great thing about being a judge. 23 (A brief recess was taken.) 24 MR. KLAYMAN: I'll show you what I'll ask the court 25 reporter to mark as Exhibit 4. 76 1 THE COURT REPORTER: I'm sorry, 5. 2 MR. KLAYMAN: 5. I'll ask Mr. Fitton to keep track 3 of the numbers. 4 Exhibit 5 is an article written by The Boston 5 Globe, February 12, 1997, headline "Donations are linked to 6 Kantor trade missions" by Walter V. Robinson, Globe staff. 7 (Kantor Deposition Exhibit No. 5 8 was marked for identification.) 9 BY MR. KLAYMAN: 10 Q Have you ever seen this article before? The 11 exhibit itself consists of four pages. 12 MS. BRASWELL: Objection. 13 JUDGE FACCIOLA: Well, let him ask if he's seen it 14 and then we'll see what the question is. 15 THE WITNESS: I don't recall this article, but that 16 doesn't mean I didn't see it, Counsel. I'm trying to be -- I 17 just don't recall the article. 18 BY MR. KLAYMAN: 19 Q You do recall speaking with Mr. Robinson in and 20 around February 12th of 1997 about trade missions? 21 A Oh, I remember -- 22 MS. BRASWELL: Objection. Objection. 23 JUDGE FACCIOLA: All right. This gentleman, this 24 Robinson you spoke to -- I'll let you ask a few more 25 questions and see where we go with this. 77 1 Did you ever talk to this guy Robinson, 2 Mr. Secretary? 3 THE WITNESS: Oh, yes. Yes, sir. I'm sorry. 4 Yes, sir. He's a reporter. 5 MR. KLAYMAN: I would just ask, Your Honor, if as 6 I go through this, and I'm going to try to keep it focused, 7 that counsel try not to make a speaking objection. 8 JUDGE FACCIOLA: I'm here. 9 MS. BRASWELL: I haven't done so. 10 JUDGE FACCIOLA: Okay. 11 MR. KLAYMAN: I'll leave the record to speak for 12 itself. 13 JUDGE FACCIOLA: That's a wonderful idea. Let's 14 proceed. 15 BY MR. KLAYMAN: 16 Q In this article, Mr. Kantor, and you can read it if 17 you'd like -- do you want to take some time and review it 18 quickly? Read the first -- 19 A Yes, please. Thank you. 20 Q Read the first page. 21 A Yes, thank you. 22 (The witness reviewed the exhibit.) 23 THE WITNESS: Fine. Thank you, Counsel. 24 BY MR. KLAYMAN: 25 Q Okay. You correct me if I'm wrong in my 78 1 interpretation of the article, I'm just trying to move it 2 along, but in this article, Mr. Walter Robinson of The Boston 3 Globe tracks the donations made by companies who went on 4 trade missions to the Democratic National Committee and he 5 finds that in fact there was a greater incidence of donors 6 going on trips that you had conducted than even Ron Brown, 7 correct? 8 MS. BRASWELL: Objection. 9 JUDGE FACCIOLA: Sustained. 10 MR. KLAYMAN: This is just for identification. 11 JUDGE FACCIOLA: Identification of what? 12 MR. KLAYMAN: Well, let me get to the point. 13 BY MR. KLAYMAN: 14 Q "In an interview, Kantor said he was 'stunned' to 15 learn of the donations. He insisted that the trips and the 16 contributions were entirely unrelated. Still, Kantor 17 acknowledged that the size and timing of the contributions 18 are likely to leave the public convinced that a quid pro quo 19 was involved." 20 And then it states, "'That's why the system is so 21 rotten,' said Kantor." 22 You made that statement, didn't you? 23 JUDGE FACCIOLA: And? So what? 24 MR. KLAYMAN: That's my question. My question is 25 to lay the foundation. 79 1 JUDGE FACCIOLA: For what? 2 MR. KLAYMAN: Well, the same rotten system existed 3 under Ron Brown as Mickey Kantor. 4 JUDGE FACCIOLA: Did you make that statement? 5 THE WITNESS: Yes, sir, but not with regard to 6 trade missions -- 7 JUDGE FACCIOLA: That was the only question. 8 Did you make that -- one question at a time, Mr. Secretary, 9 we'll see where it's going. You made that statement? 10 All right. 11 THE WITNESS: Yes, I made that statement. Yes. 12 BY MR. KLAYMAN: 13 Q And when you made the statement, "That's why 14 the system is so rotten," you were referring to the fact 15 that donors would naturally be given preference under our 16 political system to go on Department of Commerce trade 17 missions. Correct? 18 A No, that's not what I was referring to. 19 Q What were you referring to? 20 A I was referring to the fact that the way we finance 21 political campaigns leaves the perception with the public 22 that activities of government are unfairly affected by or 23 motivated by political contributions and it's not good for 24 the public, not good for government and the system ought to 25 be changed. 80 1 And if you read the rest of my quote there, "We've 2 got to put a lid on this system," I was talking about public 3 financing. "We ought to go further than campaign finance 4 reform. We ought to go to public financing of campaigns." 5 That's the system I was talking about. And that's what this 6 article says. 7 Q You were, however, also referring to the system as 8 it existed during the time of the trade missions in this 9 lawsuit, correct? 10 MR. ROBBINS: Your Honor, I'm trying to avoid 11 unnecessary objections. The witness has answered this 12 question, has explained what the word "system" means. 13 Indeed -- 14 JUDGE FACCIOLA: I certainly understood him, 15 Counsel. 16 Didn't you understand him, Mr. Klayman? He was 17 talking about the general system, the system in which in the 18 United States we raise generally money for campaigns -- 19 MR. KLAYMAN: And I was just asking a simple 20 follow-up question. 21 JUDGE FACCIOLA: If you would let me finish, he was 22 just expressing that view. He did that, as I understood him, 23 in specific reference to a question by you as to whether or 24 not he was referring to "the system," i.e., that system which 25 may or may not have been in existence when Secretary Brown 81 1 was present at Commerce. He drew a distinction between your 2 suggestion as to what he was referring to and what he was in 3 fact referring to. 4 MR. KLAYMAN: And that's why I asked the follow-up 5 question, I just wanted to -- 6 JUDGE FACCIOLA: Which was? 7 MR. KLAYMAN: -- to ask whether that system was in 8 effect during the trade missions that are the subject of this 9 case. 10 JUDGE FACCIOLA: You mean the general system -- 11 MR. KLAYMAN: Yes. 12 JUDGE FACCIOLA: -- of people donating, making 13 contributions to presidential campaigns? 14 MR. KLAYMAN: Correct. Correct. 15 JUDGE FACCIOLA: I suppose -- 16 MR. KLAYMAN: The system that he's referring to. 17 THE WITNESS: Unfortunately, the campaign finance 18 system as it exists today was in existence then. 19 BY MR. KLAYMAN: 20 Q In fact, Mr. Kantor, before the Clinton 21 administration ever came to office, during the administration 22 of President Bush where you had Secretary Mossbacher and 23 Secretary Baldridge, they sometimes took trade missions, 24 correct? 25 MS. BRASWELL: Objection. 82 1 JUDGE FACCIOLA: Sustained. 2 MR. KLAYMAN: I'm just trying to establish the 3 system. 4 BY MR. KLAYMAN: 5 Q In fact, you are aware that they sometimes took 6 donors on trade missions, too, didn't they? 7 MS. BRASWELL: Objection. 8 JUDGE FACCIOLA: Sustained. 9 BY MR. KLAYMAN: 10 Q Have you ever had any discussions with the present 11 Commerce secretary, William Daley, about the trade missions 12 that Ron Brown conducted to China, South Africa, Latin 13 America, India in 1994? 14 MS. BRASWELL: Objection. 15 JUDGE FACCIOLA: I'm not sure I understand, 16 Mr. Klayman, what that would have -- why would Daley's views 17 of those trade missions be relevant to this lawsuit? 18 MR. KLAYMAN: Let me mark as Exhibit 6 -- 19 (Kantor Deposition Exhibit No. 6 20 was marked for identification.) 21 MR. KLAYMAN: Turning to page 2, Your Honor -- 22 well, let me just identify the document. 23 A Boston Globe article February 9, 1997, headline 24 "Trade trips generated millions for Democrats," byline Jill 25 Zuckman, Z-u-c-k-m-a-n, and Walter V. Robinson, Globe staff. 83 1 And at page 3 of this document, fifth paragraph 2 from the bottom, "But Daley, at his Senate confirmation 3 hearings last month, acknowledged the existence of the 4 problem, assuring the senators that 'there is no place for 5 politics in the Department of Commerce.' Daley said he has 6 temporarily suspended all trade missions, ordered a review of 7 the criteria that had been used to determine who went on such 8 trips and announced that he would reduce the number of 9 political appointees at the department by 100. 10 "Luzzatto, the Commerce Department spokeswoman, is 11 among several top officials who transferred to Commerce with 12 interim secretary Kantor after Brown and his top aides were 13 killed. Since April, she and other officials have had to 14 deal with a deluge of requests for information about events 15 for which they had no responsibility. 16 "She said Daley was not suggesting in his testimony 17 that there was wrongdoing during Brown's tenure. But, she 18 said, 'There is a perception problem that undeniably needs to 19 be addressed.' 20 "Of Brown's tenure, Luzzatto added, 'It would have 21 been inappropriate for Commerce to have had information with 22 respect to the political activity of any of these companies 23 or any of these people.' 24 "Some former aides to Brown, in court-ordered 25 depositions in the Judicial Watch lawsuit, have begun to 84 1 fill in the blanks. A former top aide, James V. Hackney, 2 acknowledged in sworn testimony last month that he and Brown 3 had discussed taking Democratic contributors on trade 4 missions." 5 BY MR. KLAYMAN: 6 Q Have you ever seen or read this article before? 7 A I don't recall. I may have, I just don't recall 8 reading the article. 9 MR. KLAYMAN: Now, the reason for my question, 10 Your Honor, is did he -- Secretary Daley when he came in 11 stated his desire that he wanted to clean up what was going 12 on in the trade missions and he ordered a policy review. 13 He later came out with guidelines which he claims takes the 14 politics out of taking people on trips. 15 So I want to see whether Mr. Kantor ever discussed 16 with Secretary Daley what was going on during the Brown trade 17 missions. 18 MS. BRASWELL: Objection. 19 JUDGE FACCIOLA: And how would that relate to the 20 existence of documents? 21 MR. KLAYMAN: Because there may have been documents 22 exchanged which reflect what occurred during that period 23 which will lead us to the documents that we seek in this 24 case. 25 JUDGE FACCIOLA: You have lost me there. How does 85 1 what Daley says -- well, how does what Kantor says to Daley 2 and Daley says to Kantor tend to make more probable the 3 existence of documents in 1994? 4 MR. KLAYMAN: Because if Daley says to Kantor, and 5 this is -- can I ask that we excuse the witness? 6 JUDGE FACCIOLA: Step outside, if you would, for a 7 second. 8 MR. ROBBINS: Actually, Your Honor, I think I am 9 entitled to hear this colloquy because among other things 10 whether these, if you will, rather elaborate chain of logic 11 are acceptable or not has an important bearing on how much 12 time of my client is taken up at today's deposition. 13 JUDGE FACCIOLA: All right. Okay. Let me do this, 14 Counsel. If you would step outside as a courtesy to me. If 15 I sustain the objection, that will be one thing. If I intend 16 to overrule the objection, I'll repeat exactly what he said 17 to me so you can be heard. Fair enough? 18 (The witness and witness' counsel left the room.) 19 JUDGE FACCIOLA: Go ahead. Proceed. 20 MR. KLAYMAN: If Daley says to Kantor, for 21 instance, or Kantor says to Daley, yes, Brown was doing this 22 in 1994, he was selling those seats on trade missions and he 23 was working with persons A, B and C to do it and there's a 24 paper trail that's relevant to Judicial Watch's lawsuit, then 25 of course that identifies the documents we never got. 86 1 JUDGE FACCIOLA: In what way? 2 MR. KLAYMAN: See, I'm going to get into -- and 3 this is why it's important, I don't want him to necessarily 4 know what I'm getting into, but when he came in as Commerce 5 secretary, he came in during a period right after the Huang 6 incident, during a period when the whole campaign finance 7 matter was just starting to heat up, before -- actually, 8 before the Huang incident. 9 And it is our belief that he had to deal with these 10 issues, that he had various staff meetings where he discussed 11 Judicial Watch's lawsuit, where he discussed whether 12 documents were going to be produced, to -- 13 JUDGE FACCIOLA: He being Kantor? 14 MR. KLAYMAN: Kantor. Yes. That he actually 15 worked with the General Counsel's office. He is the person 16 who was in charge and we believe that as one of the 17 President's closest advisors that that's why he was put 18 there, in part because of the concern about our lawsuit and 19 to limit the damage. And that -- 20 JUDGE FACCIOLA: I still don't see what that has to 21 do with conversations with Daley. 22 MR. KLAYMAN: Well, because it would have 23 identified where the documents are and what were done with 24 the documents. 25 JUDGE FACCIOLA: It's too attenuated a chain of 87 1 logic. 2 The objection will be sustained. 3 Please ask the witness to return. 4 MR. KLAYMAN: Wait. May I make another proffer? 5 JUDGE FACCIOLA: Okay. Go ahead. 6 MR. KLAYMAN: If I ask him whether or not he knows 7 of -- he discussed documents with Daley that were never 8 produced in our lawsuit -- 9 JUDGE FACCIOLA: That's a perfectly legitimate 10 inquiry. Perfectly legitimate. 11 MS. BRASWELL: That were responsive. 12 JUDGE FACCIOLA: That were responsive. Well, let's 13 talk about documents, he can't -- he doesn't know if they're 14 responsive or not. 15 MR. KLAYMAN: And -- and -- if I can ask him 16 whether or not he ever discussed whether these events were 17 occurring during Brown's tenure with Daley, because that can 18 lead to -- 19 JUDGE FACCIOLA: Well, ask him those questions and 20 then we'll get to that. Let's see where we are. 21 (The witness and witness' counsel returned.) 22 JUDGE FACCIOLA: I sustained the objection, 23 Counsel. 24 MR. ROBBINS: Thank you, Your Honor. 25 MR. KLAYMAN: I'm going to take it a little 88 1 broader, Your Honor, and then come back to that. 2 JUDGE FACCIOLA: All right. 3 BY MR. KLAYMAN: 4 Q During the time that you were -- you were installed 5 as Secretary of Commerce on April 12, 1996. Did you ever 6 have any meetings at the Department of Commerce where you 7 discussed Judicial Watch's lawsuit? 8 A I can't recall specific discussions. I assume, 9 because -- I knew there was a lawsuit and because my General 10 Counsel at that point, Sue Esserman, was involved and I was 11 briefed with regard to the status of the lawsuit, but I don't 12 recall specific discussions because it was not a major issue 13 at the department. 14 Q Judicial Watch's lawsuit and the issue of sales of 15 seats on trade missions, the allegations thereof, were not 16 major issues at the department? 17 A You asked a broader question, Counsel, and I'll try 18 to answer -- 19 Q No -- 20 A No, I'll answer it. 21 Q I'll try to clarify -- 22 A The lawsuit itself was not. The fact that there 23 were concerns in Congress and concerns generally in the press 24 were, of course, of great concern to me and to the department 25 and those were discussed. 89 1 The Judicial Watch lawsuit, I'm just trying to 2 be -- I'm trying to help here, as part of that, was, of 3 course, discussed, but it was not a major part of that 4 because the Congress, as you know, in the fall of 1996, was 5 concerned about it as well. 6 Q And was it not the case that the Congress knew of 7 these allegations through Judicial Watch's lawsuit? 8 MR. ROBBINS: Objection. 9 MS. BRASWELL: Objection. 10 THE WITNESS: I can't answer that. 11 BY MR. KLAYMAN: 12 Q Well, I'm just trying to see how you make the 13 distinction that Judicial Watch's lawsuit is not a major 14 concern but what Congress is doing is. 15 MS. BRASWELL: Objection. 16 MR. ROBBINS: Renew the objection. 17 JUDGE FACCIOLA: The objection is sustained. 18 Let me see if I can help here. 19 Mr. Secretary, I think the question Mr. Klayman is 20 trying to get at is did you understand as secretary when 21 congressional inquiries were going to be made that they found 22 their genesis in this lawsuit? 23 THE WITNESS: Generally, yes. 24 MR. KLAYMAN: So -- 25 JUDGE FACCIOLA: And therefore you considered the 90 1 entire topic a serious matter for your concern. Is that 2 right? 3 THE WITNESS: Absolutely. Yes, sir. 4 BY MR. KLAYMAN: 5 Q And therefore you and your staff held a number of 6 meetings to try to figure out when you became Secretary of 7 Commerce what was going on. 8 MR. ROBBINS: Objection. 9 THE WITNESS: When I became secretary or during the 10 period I was secretary? I'm just asking for clarification. 11 MR. KLAYMAN: All right. Either way. If you 12 prefer -- 13 THE WITNESS: During the period I was secretary, 14 there were meetings, a number of would be an overstatement, 15 but meetings, with regard to the trade missions and as part 16 of that I am -- I would guess that Judicial Watch's lawsuit 17 was part of the discussion. 18 BY MR. KLAYMAN: 19 Q When was the first such meeting? 20 A I have no idea. 21 Q Roughly speaking. We're trying -- for discovery, 22 just trying to pin a point in time. To the best of your 23 ability. 24 A Probably the fall, early fall, or mid September 25 1996. 91 1 But, Your Honor, that's a guess. 2 JUDGE FACCIOLA: Okay. That's fine. We 3 understand. 4 THE WITNESS: But I think that's close to being 5 correct. 6 BY MR. KLAYMAN: 7 Q And you called the meeting? 8 A Oh, I don't remember who called the meeting. 9 My General Counsel could have called me and said "We need to 10 talk, there is a concern here," or I could have called the 11 meeting. I don't know. 12 Q Who was the General Counsel at the time? 13 A Sue Esserman. 14 Q Was there anything in writing announcing the 15 meeting and what was going to be discussed? 16 A Oh, I wouldn't recall that. 17 Q Where would those documents have been kept or 18 stored? 19 A What documents? I'm sorry, what documents? 20 I'm sorry, Counsel. 21 Q If there was a memorandum that was circulated, 22 please attend a meeting, we want to discuss Judicial Watch's 23 lawsuits and production of records to Judge Lamberth. If 24 such a document existed, where would that be kept? Where it 25 would have been stored? 92 1 A I wouldn't have any personal knowledge of that. 2 Q You wouldn't have any personal knowledge of the 3 memorandum having been circulated or where it would be 4 stored? 5 A Either. 6 Q Well, you said you attended a meeting, correct? 7 You attended meetings, correct? 8 A Yes. 9 Q How did you learn of the meetings to attend them? 10 A Well, I would hazard -- you know, counsel tells 11 witnesses you're not supposed to guess, but I'm going to 12 guess. 13 I would guess that my counsel, Sue Esserman, or my 14 chief of staff, Peter Scher, or someone else came in and said 15 there is a concern, we need to meet today, let's look at your 16 schedule, we'd put it on the schedule and we'd meet. 17 Q And who kept your schedule? 18 A Debbie Frankenberg would be one but my scheduler 19 was -- where is Exhibit 1? I'm sorry, the name -- I'm 59 20 years old, I'm drawing a blank here and I apologize. Her 21 name is in the -- I thought in Exhibit 1. I'm sorry. 22 I'm sorry to take the time of everyone here to try 23 to find that. There are three people mentioned, including -- 24 no -- no -- I apologize. I will think of it. Let me look 25 through here as you're asking other questions. I will find 93 1 it for you, Counsel. 2 Q One of your schedulers -- was your schedule kept 3 on a computer or in a day book? How did your schedule 4 ordinarily get kept? 5 A It probably was kept on a PC by my scheduler, I 6 assume, and I was given my schedule on a daily, weekly basis. 7 Q Were those schedules that you were given on a daily 8 or weekly basis then filed in a binder or some type of filing 9 system? 10 A Well, they were given to me in a binder and I would 11 give it back every day in what we called a briefing book. I 12 would give it back the next day and get my next day's 13 briefing book. Where they were kept after that, I really 14 don't know, Counsel. I just don't know where they were 15 filed. 16 Q And do you remember anything being written down 17 about meetings to discuss Judicial Watch's lawsuit and the 18 production of documents to Judge Lamberth? 19 A No. I don't remember that. 20 Q So you don't remember anything in writing? 21 A No, I don't. 22 Q Now, tell us about the first such meeting that you 23 attended. 24 A Counsel, I don't remember. I said I generally 25 remember, there must -- meetings. There weren't very many. 94 1 They occurred in the fall of 1996. I couldn't tell you about 2 the first, second or if there was a third. I just couldn't 3 tell you. 4 Q Just to the best of your ability -- 5 A Sure. 6 Q -- where do you think that meeting occurred? 7 A The secretary's office. 8 Q In your office? 9 A Yes. 10 Q And to the best of your memory, who do you think 11 was present at the meeting, besides yourself? 12 A Counsel. 13 Q Sue Esserman? 14 A Yes. 15 Q Anyone else? 16 A I doubt it because I think those meetings were 17 probably privileged. 18 Q What do you mean by privileged? 19 A Lawyer-client. 20 Q Well, that doesn't mean there weren't other people 21 present. 22 A There may have been, but my guess is that if we 23 discussed Judicial Watch, they were probably privileged and 24 there were no other people present. If we discussed the 25 Congress and their request, there probably were other people 95 1 present. 2 Q Was Mr. DiGiacomo present from the General 3 Counsel's office? 4 A I don't think so. 5 Q Barbara Fredericks? 6 A Yes. 7 Q Who was Assistant General counsel? 8 A Yes. 9 Q Judith Means? 10 A I don't recall. 11 Q Elise Packard? 12 A Don't recall. 13 Q Mr. Fields? 14 A Don't recall. 15 Q What was discussed at that first meeting? 16 MS. BRASWELL: Objection. 17 THE WITNESS: I've answered the question, 18 Your Honor. 19 MR. ROBBINS: No, no -- 20 JUDGE FACCIOLA: Well, let's talk a little bit 21 about the attorney-client privilege in that context. 22 Correct me, Ms. Braswell, but I thought that Judge 23 Lamberth mentioned that Secretary Daley had indicated he was 24 going to waive that privilege in terms of certain set of 25 particulars in the response. Isn't that correct? 96 1 MS. BRASWELL: Your Honor, I am unaware of that, if 2 that is true. 3 JUDGE FACCIOLA: Mr. Klayman, am I right in that 4 supposition? Is there a mention in the memorandum opinion 5 that the Secretary indicating that he would waive that 6 privilege? 7 MR. KLAYMAN: I believe there is, but there's 8 also -- 9 MS. BRASWELL: It was -- 10 JUDGE FACCIOLA: He would waive the privilege. 11 MR. KLAYMAN: There's also discussion that occurred 12 throughout this case in the various status conferences where 13 Bruce Hegyi on behalf of the Justice Department would claim 14 that we could never depose anybody in the General Counsel's 15 office because per se it was privileged and Judge Lamberth 16 said absolutely not, when it gets to the issue of whether 17 documents had been produced or not produced there is no 18 privilege. 19 That's the core issue of the case and these were 20 the people that were producing the documents, that were 21 actually reviewing them. There's no privilege here and the 22 judge has already ruled on that. 23 MS. BRASWELL: Your Honor, I believe -- 24 JUDGE FACCIOLA: What is your understanding of 25 that, Ms. Braswell? 97 1 MS. BRASWELL: I believe what you're referring 2 to is an incident involving a particular list, a minority 3 donor list, that was discovered and during the process of a 4 deposition we waived the attorney-client privilege so that 5 Mr. Klayman could ask about the deposition preparation 6 session of Christine Sopko because it was apparently during 7 that preparation session that she brought this document to 8 light but it was not turned over to Judicial Watch. I 9 believe that's what you're referring to. 10 Certainly there was no blanket waiver of the 11 attorney-client privilege for this case. 12 MR. KLAYMAN: Your Honor -- 13 JUDGE FACCIOLA: Now, we have to be very careful. 14 Mr. Kantor, of course, is no longer in public service, 15 Secretary Kantor is no longer in public service, so you are 16 asserting the attorney-client privilege on behalf of whom? 17 MS. BRASWELL: On behalf of the Department of 18 Commerce, which would include conversations that Mr. Kantor 19 had while he worked at the Department of Commerce with 20 counsel that involved confidential communications. 21 That's why I did not assert the privilege when he 22 asked what was the subject because the fact that they talked 23 and they talked about Judicial Watch's lawsuit would not be 24 covered by the attorney-client privilege. But if there were 25 more conversations between Mr. Kantor and the attorneys at 98 1 the Department of Commerce regarding information pertaining 2 to this lawsuit, information that Mr. Kantor had upon which 3 he was seeking legal advice, those communications would be 4 protected by the attorney-client privilege. 5 JUDGE FACCIOLA: Are you familiar with what 6 Mr. Klayman mentions when he says that there came a point in 7 this lawsuit where Judge Lamberth overruled this very claim 8 of privilege with reference to conversations between the 9 secretary and attorneys with reference to how to respond to 10 the FOIA requests and the various proceedings of the Judicial 11 Watch case? 12 Mr. Klayman has just asserted that Judge Lamberth 13 so ruled. Are you familiar with such a ruling? 14 MS. BRASWELL: It's my understanding and 15 Mr. DiGiacomo who has been involved longer than I have 16 can aid me here, I know he took depositions of people in 17 the Office of General Counsel and discussed the search in 18 general as to what happened. I think that's a little 19 different from the kind of conversations that occurred here. 20 MR. DiGIACOMO: I'm not aware of that. 21 MR. KLAYMAN: Let me add to that, Your Honor, that 22 if you go back through the depositions you'll find not only 23 did Judge Lamberth say that we can get into the activities of 24 the General Counsel's office in producing and reviewing 25 records, that doesn't necessarily mean we can get into exempt 99 1 material, but we have also asked a series of questions over 2 the last four and a half years did you have discussions with 3 Secretary Brown about producing records and there are 4 responses to those questions on the record. 5 JUDGE FACCIOLA: Because the privilege was not 6 asserted at that time. 7 MR. KLAYMAN: It was not asserted and -- 8 JUDGE FACCIOLA: Would that lead to conclusion that 9 the United States cannot now selectively assert the privilege 10 because it failed to assert it when the question first arose? 11 MR. KLAYMAN: It waived it. 12 MS. BRASWELL: Your Honor, I don't think a waiver 13 of a privilege -- 14 JUDGE FACCIOLA: Well, I don't know. 15 MS. BRASWELL: -- if that's what occurred, is a 16 waiver for all time, and I'm not sure that actually that 17 occurred. 18 JUDGE FACCIOLA: Actually, it is. There's a case 19 in this circuit called SEC v. somebody or other and it 20 turns out that inadvertently there was a disclosure of some 21 documents that were covered by the privilege and the Court of 22 Appeals said quite clearly once it goes, it goes for all 23 time. 24 MS. BRASWELL: Those particular documents. 25 JUDGE FACCIOLA: Yes. The problem I have, 100 1 Ms. Braswell, is the selectivity of the privilege. In other 2 words, as I understand the privilege, if it is not asserted 3 and -- if it is not asserted by a governmental entity as to a 4 particular conversation which is covered and that topic comes 5 up again, can it be asserted? 6 MS. BRASWELL: It's my -- 7 JUDGE FACCIOLA: How can you pick and choose like 8 that? 9 MS. BRASWELL: Because you could waive -- you could 10 waive the attorney-client -- for example, the Christine Sopko 11 deposition preparation is a perfect example. 12 We waived the attorney-client privilege so that he 13 could ask questions about that preparation session. Does 14 that mean we waive the attorney-client privilege for every 15 deposition preparation we had? Absolutely not. They're 16 different individuals. 17 JUDGE FACCIOLA: I'm going to sustain the claim of 18 privilege at this point, at least with reference to those 19 confidential communications between the secretary and his 20 counsel, provided on the basis of the secretary's sworn 21 testimony that no one else was in the room who was other than 22 the Secretary of Commerce or counsel in this case. 23 MS. BRASWELL: Right. I wouldn't be claiming the 24 privilege, Your Honor, if someone else was there. 25 JUDGE FACCIOLA: But that is the common 101 1 understanding with which -- 2 MR. ROBBINS: Could we have -- 3 MR. KLAYMAN: Here's the problem I'm having, 4 Your Honor -- 5 MR. ROBBINS: Could we have one moment before -- 6 because I want to be sure I understand -- 7 JUDGE FACCIOLA: I think it's very important that 8 you do. 9 MR. ROBBINS: -- the claim. 10 JUDGE FACCIOLA: Now, wait a minute. There's also 11 another aspect in this, which is complicated and wheels 12 within wheels and I think, Counsel, you and Ms. Braswell 13 should talk about this, all right? 14 I do not know, because I have never really thought 15 about it or seen persuasive authority about it, whether the 16 person who holds the cabinet position can continue to assert 17 the privilege even after his departure when there is a 18 possibility that he made disclosure to those attorneys of 19 matters that were confidential that he expected them to keep 20 because they affected him in some personal way. 21 That's the problem that the Court of Appeals 22 recently struggled with in the President's case involving his 23 disclosures to Bruce Lindsey. 24 MR. ROBBINS: Right. 25 JUDGE FACCIOLA: So I think it's very important 102 1 that you take five minutes and talk to Ms. Braswell because 2 we're kind of on uncertain ground here and I want to be very 3 careful as to who is asserting what privilege. 4 MS. BRASWELL: It is my understanding, Your Honor, 5 this is -- 6 JUDGE FACCIOLA: Okay, Ms. Braswell, why don't you 7 take my wise advice and speak to counsel for a minute and 8 then I'll talk with you? 9 You can step outside. 10 MR. KLAYMAN: We can go off the record. 11 (A brief recess was taken.) 12 MS. BRASWELL: Your Honor, we are claiming the 13 attorney-client privilege for confidential communications 14 that Mr. Kantor would have had while Secretary of the 15 Department of Commerce with his attorneys. This is a 16 privilege that's being claimed on the part of the Department 17 of Commerce. It is the Department's privilege to claim and 18 maintain and we are claiming that privilege. 19 JUDGE FACCIOLA: And in that sentence, the word 20 "his" attorneys means attorneys employed by the Department of 21 Commerce? 22 MS. BRASWELL: That's correct. 23 JUDGE FACCIOLA: The objection on the basis of that 24 privilege will be sustained. 25 MR. ROBBINS: Your Honor, may I add one thing for 103 1 the record? 2 JUDGE FACCIOLA: Certainly. 3 MR. ROBBINS: I think it should be clear from the 4 nature of the objection that this is not a privilege being 5 claimed by Mr. Kantor personally. He would be perfectly 6 happy to answer this and any other question. 7 JUDGE FACCIOLA: I understand. 8 MR. ROBBINS: But, of course, it's not his 9 privilege. It is the government's privilege and he will 10 defer as is appropriate to the assertion of that privilege 11 by the government. 12 JUDGE FACCIOLA: Thank you. 13 MR. KLAYMAN: Now, let me seek a clarification. 14 We start with the premise here, which is a reverse premise, 15 that Mr. Kantor can't remember who was present at meetings, 16 he only knows that no one other than counsel was present. 17 JUDGE FACCIOLA: That's right. 18 MR. KLAYMAN: So I have to probe who was present. 19 THE WITNESS: Excuse me, Your Honor. That wasn't 20 my answer. 21 MR. KLAYMAN: That wasn't -- 22 THE WITNESS: My answer was there was more than 23 one meeting and at certain meetings other than counsel were 24 there and I was only asked -- I think you only asked me about 25 counsel, I think, Mr. Klayman, correct me if I'm wrong. 104 1 JUDGE FACCIOLA: All right. Well, let's -- 2 THE WITNESS: And so therefore -- 3 MR. KLAYMAN: Let me just put this on the record. 4 And I'll ask the questions, Mr. Kantor, or the Court. 5 So we're starting from that premise, so I need to 6 know who was present, number one. 7 JUDGE FACCIOLA: We'll pursue that. All right. 8 Let's -- 9 MR. KLAYMAN: Number two, if I may, just for the 10 record -- 11 JUDGE FACCIOLA: Sure. 12 MR. KLAYMAN: So we have it neatly and cleanly and 13 I'll ask the court reporter to -- I use the word "certify" 14 because I started practicing in a different district, some 15 people have said we don't use the word "certify" here, but 16 I've been doing it for 21 years, if you'll certify this so 17 you'll mark it in the transcript. 18 The second question is whether or not if he 19 discussed issues of documents that weren't produced which 20 should have been produced pursuant to court order, there 21 would be a crime/fraud exception here, so I clearly can get 22 to that and that's not in dispute. 23 So I'm going to ask some questions getting into the 24 crime/fraud exception, if that's -- 25 JUDGE FACCIOLA: And I'll rule on each of those 105 1 questions as they arise. 2 MR. KLAYMAN: Okay. 3 JUDGE FACCIOLA: But the first question I take 4 it you want to pursue is the secretary's recollection of 5 meetings about this topic and whether in any of these 6 meetings there were other persons in the room during these 7 conversations who were not members of the bar and who were 8 not providing him with legal advice. 9 MR. KLAYMAN: Right. The third point I want to 10 make, Your Honor -- 11 JUDGE FACCIOLA: I take it, Ms. Braswell, that is 12 from your point of view a legitimate inquiry. 13 MR. KLAYMAN: The third point I want to make, 14 however, Your Honor -- 15 JUDGE FACCIOLA: Well, let me get her answer. 16 MR. KLAYMAN: Okay. 17 JUDGE FACCIOLA: Because he's saying -- 18 MS. BRASWELL: Your Honor, I'm sorry? 19 JUDGE FACCIOLA: Well, he is trying to probe, first 20 of all, whether during the course of these meetings whether 21 other people or persons were in the room were not members of 22 the bar and were not providing him with legal advice, in 23 which case the discussions, he would argue, there was no 24 privilege because of the presence of people with whom the 25 privilege could not be claimed. 106 1 MS. BRASWELL: It would depend, Your Honor, for 2 example, if there was -- who the other individuals were who 3 were there, if there was a paralegal, if there was someone, 4 you know, it would depend upon the status. 5 JUDGE FACCIOLA: Well, that's what we'll have to 6 get into, but we do have to get into it. 7 MS. BRASWELL: That's fine. 8 JUDGE FACCIOLA: And the second aspect of the 9 inquiry would be -- Mr. Klayman has argued that the privilege 10 yields to a showing of crime or fraud and therefore if there 11 were discussions in these meetings, for example, of how 12 people could not tell the truth if they were called to 13 depositions, how people were given instructions that they 14 should destroy records that were subject to this court order 15 or whatever, then that exception would apply. 16 MS. BRASWELL: I will not raise the privilege for 17 questions dealing with any obstruction of justice or anything 18 that could be considered a crime, so that's not an issue. 19 He can ask those kinds of questions. 20 JUDGE FACCIOLA: Go ahead, Mr. Klayman. 21 MR. KLAYMAN: And in that regard, Your Honor, the 22 very aspect of selling seats on trade missions if indeed that 23 was occurring, and we submit that it was -- 24 JUDGE FACCIOLA: No, that's different. I think 25 that's quite different. 107 1 MR. KLAYMAN: Well, if I can finish this? 2 JUDGE FACCIOLA: Sure. 3 MR. KLAYMAN: We have documents that have set forth 4 prima facie evidence that seats on trade missions were sold. 5 That in and of itself is a crime. 6 JUDGE FACCIOLA: What crime is it? 7 MR. KLAYMAN: 18 U.S.C. Section 600. 8 JUDGE FACCIOLA: Why is that a crime? 9 MR. KLAYMAN: You cannot sell a taxpayer financed 10 government service for a political contribution. 11 JUDGE FACCIOLA: Okay. I don't know -- 12 MR. KLAYMAN: So consequently if that issue was 13 discussed at all, then that would be under the crime/fraud 14 exception. 15 MS. BRASWELL: Your Honor -- 16 MR. ROBBINS: No, Your Honor. That manifestly 17 would not be. What the crime/fraud exception is -- 18 JUDGE FACCIOLA: I don't think it would be. 19 MR. ROBBINS: That is the opposite of the 20 crime/fraud exception. Anybody who looks at the issue knows 21 that very well and so if that's the premise on which this 22 stuff is going to go forward, you know, it ought not to be 23 permitted. 24 JUDGE FACCIOLA: Let's proceed in a more organized 25 fashion. Let's go through it question by question and see 108 1 where we go. 2 MR. KLAYMAN: Well, we obviously take issue with 3 that, Your Honor. 4 JUDGE FACCIOLA: All right. 5 MR. KLAYMAN: At least -- for the record -- 6 JUDGE FACCIOLA: Okay. Let's -- 7 MR. KLAYMAN: For the record -- 8 JUDGE FACCIOLA: Let's have a question. 9 MR. KLAYMAN: Okay. I understand. But for the 10 record -- 11 JUDGE FACCIOLA: It's impossible to deal with these 12 things in the abstract. 13 MR. KLAYMAN: I understand. 14 JUDGE FACCIOLA: Ask a question. 15 MR. KLAYMAN: Just the last point, there was a 16 waiver of any asserted privilege and a court order by Judge 17 Lamberth in terms of what we'd get into, but we'll just leave 18 that for the record right now. 19 JUDGE FACCIOLA: All right. 20 BY MR. KLAYMAN: 21 Q During this first meeting, who in addition to 22 Ms. Esserman was present? 23 A I could not tell you with any particularity who was 24 in the first meeting, second meeting or third or if there was 25 a fourth or even more meetings. 109 1 What I tried to say before was there were meetings 2 where only Ms. Esserman or people from the General Counsel's 3 office were there, there were meetings where there were other 4 people in the room with Ms. Esserman and people from the 5 General Counsel's office, so therefore -- 6 But if you're going to ask me about any 7 particular -- number one, number two, number three or 8 whatever, Mr. Klayman, I'm trying to help here, I'm not going 9 to remember which meeting -- who was present at which 10 meeting. I don't even remember the dates, much less -- 11 Q Well, I take it -- 12 A Unless you have documents you can show me that 13 might refresh my memory. 14 Q Well, that's the problem. I don't have the 15 documents. 16 A Well, nor do I, so we're both -- 17 Q Which we're trying to find. 18 A -- laboring under the same -- 19 Q We're trying to find them. 20 A If there are documents. 21 Q We're trying to find these documents. 22 A Okay. 23 Q And when there were meetings in your office, I take 24 it someone prepared an agenda where the people were listed? 25 A In most of these meetings, my guess is no agenda 110 1 was prepared. 2 Q Was that at your instruction or someone else's 3 instructions? 4 A No. I made no instruction one way or the other 5 with regard to that. 6 Q I take it at most of these meetings, notes were 7 taken by some of the participants. 8 A I assume that's correct. 9 Q And you took notes. 10 A I may or may not have. 11 Q But from time to time, you did take notes? 12 A Oh, yes. Yes. I have the lawyer's disease of 13 taking notes. Yes, sir. 14 Q And you would keep those notes in the ordinary 15 course of your work at the Commerce Department? 16 A Yes, sir. 17 Q And you filed those notes? 18 A Sometimes I did and sometimes I didn't. If they 19 weren't relevant and I'd completed the task, I would throw 20 them away, but I -- those notes would be at the Commerce 21 Department, if they exist. 22 Q Where were they stored such that they would be at 23 the Commerce Department? 24 A I don't know. You'd have to ask the Department of 25 Commerce. I just don't know. 111 1 Q Did your secretary file them for you or did you 2 file them? 3 A I'm sure they were filed either by my secretary or 4 somebody in the Office of the Secretary, but I don't know 5 where physically they'd be kept. I'm sorry, I just don't 6 know. 7 Q Okay. And you may have answered this, I apologize 8 if you did already, I just don't remember, who was your 9 secretary? 10 A Debbie Frankenberg. 11 Q Okay. And she's still there? 12 A No. 13 Q Where is she today? 14 A I believe she's now working with the Secretary of 15 Energy, Bill Richardson. 16 Q And if it wasn't Ms. Frankenberg, who do you 17 believe would have filed the notes? 18 A Oh, it could have been any number of people and so 19 therefore I couldn't detail any particular person for you. 20 Q Who worked in the office in and around you? 21 A There were a number of people. 22 Q During your period as Secretary of Commerce. 23 A There were a number of people. 24 Q Name who you can remember. 25 A Peter Scher and -- 112 1 Q He moved with you from USTR? 2 A -- Sue Esserman and Anne Luzzatto and so on, but 3 they wouldn't have been involved in filing materials. 4 Q Well, but they may know who was if you can't 5 remember. So Peter Scher moved with you from U.S. Trade 6 Representative to Commerce Department? 7 A Yes. 8 Q And what was -- 9 A I doubt seriously, frankly, Mr. Klayman, either 10 Mr. Scher or Ms. Luzzatto or Ms. Esserman paid much attention 11 to where any notes I may have kept, if I kept any, where they 12 were filed or stored. 13 Q That wasn't my question. Mr. Scher moved with you 14 from the U.S. Trade Representative? 15 A Yes, I've testified to that. 16 Q And what was his position at Commerce? 17 A He was chief of staff. 18 Q And who worked in that suite of offices with you 19 when you were secretary and he was chief of staff? 20 A Peter Scher. Jamaal Simmons. Sue Esserman was -- 21 I don't know how we're going to define suite of offices but 22 I'll be generous here. Sue Esserman, because she was about 23 three offices down. The scheduler and I'm drawing a -- I 24 apologize. There's a document in here, I think I have the 25 name, I can give you the name of the scheduler and her staff. 113 1 That would have been the -- 2 Q Do you want to take a few minutes and get that 3 after you list all the names? And then we'll -- 4 A Why don't we -- well, I'm not in charge here. 5 JUDGE FACCIOLA: We'll break for lunch -- 6 THE WITNESS: When we break for lunch, I'll get it. 7 MR. KLAYMAN: All right. After lunch. 8 THE WITNESS: Because I don't want to take the 9 time of His Honor. 10 MR. KLAYMAN: All right. 11 BY MR. KLAYMAN: 12 Q And who else worked in that suite? 13 A Office of Policy Development. It would have been 14 David Lane and Carrie Doane and others who worked for them. 15 Q Now, you say you can't remember any one meeting, 16 correct? 17 A A particular meeting. 18 Q You can't remember any one meeting. 19 A Yes. Sure. Sure. Right. 20 Q Let's just talk globally, then. What period of 21 time did these meetings span? 22 A The fall of 1996. 23 Q Up to and including? 24 A Up to and including? 25 Q Did it go beyond the fall of 1996? 114 1 A No. 2 Q Did it go into 1997? I'm talking about meetings 3 where you discussed this lawsuit -- 4 A No, it didn't go into 1997. Let me go back again. 5 The general subject matter of trade missions, documents and 6 the Congress was the major issue in front of me. From time 7 to time, maybe twice or three times, no more, during the fall 8 of '96 did the Judicial Watch lawsuit come up in terms of any 9 particular aspect of that suit, documents or not documents. 10 Q How many times did the Judicial Watch lawsuit come 11 up? 12 A Two or three times, as I recall. 13 Q Okay. All right. We'll start with that and then 14 we'll move to congressional. 15 A Fine. 16 Q Because we've established that the Judicial Watch 17 lawsuit was the catalyst for the congressional. During those 18 meetings about Judicial Watch, when did those meetings take 19 place? What relative time period? 20 A The fall of 1996. And let me just say for the 21 record, again, I have no idea whether or not the catalyst for 22 the judicial hearings were concerned Judicial Watch lawsuit 23 or not. I don't know. I don't know that. I've testified I 24 don't know. 25 Q Well, I'm just trying to identify what we're 115 1 getting to. There's no professional pride here on my part 2 whether they were or they weren't. 3 A I understand that, Mr. Klayman. But I just wanted 4 to make sure I didn't testify to that because I don't know. 5 I have no knowledge of that. 6 Q Well, I'm just trying to pinpoint the time here -- 7 A Well, go ahead. 8 Q -- because the congressional hearings -- 9 A It's the fall of 1996. 10 Q -- did in theory deal with these same matters, so 11 I'm just trying to -- as I say, I'll take it one step at a 12 time. During any of these meetings, was anyone other than 13 Ms. Esserman present? 14 A Oh, yes. 15 Q The Judicial Watch meetings. 16 A Oh, yes. No -- Judicial Watch meetings? 17 Q Yes. 18 A I never -- I don't remember any meeting that was 19 specifically, particularly and exclusively related to only 20 the Judicial Watch lawsuit. 21 Q Again, there's no professional pride, did you ever 22 discuss Judicial Watch during any meetings? 23 A Yes. 24 Q Okay. And how many meetings were there? 25 A Two or three. 116 1 Q Okay. Now, during those particular meetings, did 2 those go into 1997 or were they limited to the fall of '96? 3 A The fall of 1996. 4 Q And during those meetings, who was present? 5 Grouping them all together. 6 A In addition to counsel that we've already talked 7 about? 8 Q Well, we don't know that Ms. Esserman was there at 9 every meeting, do we? 10 A No, but someone from the counsel's office most 11 likely was involved at every one of those meetings. 12 Q But you really don't know. 13 A No, I don't, because I have no documents and no 14 notes, so I don't know that. I can't tell you, but it's 15 quite likely someone from the counsel's office -- probably 16 Ms. Esserman, could have been Ms. Fredericks, could have been 17 someone else was involved. 18 Q Since you don't have a memory, why do you think 19 it's likely they were there? 20 A Because they were the ones charged with the 21 responsibility to respond to the FOIA request. 22 Q So a subject of those meetings was responding to 23 Judicial Watch's FOIA request? 24 A No. The subject was responding to the Congress' 25 request for documents. 117 1 Q No, we're talking about Judicial Watch meetings. 2 JUDGE FACCIOLA: Mr. Klayman -- 3 MS. BRASWELL: Objection. 4 JUDGE FACCIOLA: Yes. Let's see if we can 5 understand something maybe I misunderstood. 6 When you explained that these meetings were held in 7 the fall of 1996, I misunderstood. I thought you said they 8 were held with reference to how to respond to the FOIA 9 requests that had been filed by Judicial Watch. 10 THE WITNESS: I am -- let me just -- I'm sorry. 11 No. 12 JUDGE FACCIOLA: Excuse me. Or are you saying 13 that the real general topic is this business of press inquiry 14 and congressional inquiry into the alleged sale of trade 15 missions and how we're going to respond to that? 16 Was the focus of the meeting on the FOIA requests 17 themselves? Or was that simply one of the topics that was 18 discussed at the meeting? 19 THE WITNESS: It's one of the -- there was a broad 20 and general concern. 21 JUDGE FACCIOLA: I see. 22 THE WITNESS: We wanted to -- I gave instructions 23 to produce every single document requested without exception 24 and to make a thorough search. I didn't want anyone 25 embarrassed including the department or the administration or 118 1 me that a document was not produced in a timely manner and in 2 a way that later someone would say you didn't produce this 3 document. 4 So the meetings were generally about the whole 5 notion of producing documents and making sure we were careful 6 and every legitimate request was fulfilled, from whatever 7 source, frankly, because the press was asking, the Congress 8 was asking, and that's how Judicial Watch -- because Judicial 9 Watch also had requests, as I recall. 10 JUDGE FACCIOLA: I see. 11 THE WITNESS: So I'm not distinguishing between the 12 various requests. 13 MR. KLAYMAN: In fact -- well, first of all, we 14 have testimony now, Your Honor, for which no claim of 15 privilege can be asserted over those discussions because 16 we're dealing now with the production of documents, so that's 17 what I want to get into. 18 JUDGE FACCIOLA: Go ahead and we'll see. 19 MR. KLAYMAN: Okay. 20 JUDGE FACCIOLA: Ms. Braswell will make her 21 objections as she sees fit. 22 BY MR. KLAYMAN: 23 Q Now, what was -- who was present at those meetings? 24 A I only have a general recollection of the meetings. 25 I would assume -- well, I'm not going to assume anything. 119 1 I recall Ms. Esserman. I recall Ms. Fredericks. Mr. Scher. 2 Q Is Mr. Scher a lawyer? 3 A Yes, he is. 4 Q Was he serving in a legal capacity as your chief of 5 staff? 6 A No. There may have been -- I just don't remember, 7 there may have been people from the Office of Public Liaison 8 who helped put these missions together who were charged with 9 following the guidelines, who chose the participants on the 10 trips, but I don't know that for a fact. I can't tell you at 11 this point whether they were or the weren't. 12 Q Melissa Moss? 13 A Melissa Moss didn't work at the department when I 14 was there. 15 Q Sally Painter? 16 A No, I don't think so. 17 Q Glen Ost? 18 A I don't think so. I don't think that -- 19 Q Do you remember any names? 20 A No, I don't. 21 Q All right. Who else? Either by name or in terms 22 of their position. 23 A I doubt whether anyone else would have been 24 involved. It wouldn't have been relevant. 25 MR. KLAYMAN: Now, I'll show you what I'll ask the 120 1 court reporter to mark as Exhibit 7. 2 I'm showing you Exhibit 7. This is an order of 3 the Court of May 16, 1995 that requires full production of 4 Judicial Watch's requested documentation subject to any claim 5 of exemption. 6 (Kantor Deposition Exhibit No. 7 7 was marked for identification.) 8 BY MR. KLAYMAN: 9 Q Have you ever seen this document before? 10 A No, sir. Not to my knowledge. I don't recall ever 11 seeing this document. 12 Q Was this document ever discussed with you when you 13 were Secretary of Commerce, either in terms of the actual 14 document -- 15 A I can't remember -- 16 Q -- or the fact that the order existed? 17 A If there was any discussion, it might have been a 18 general discussion that we were required to produce certain 19 documents or required to produce documents. I don't remember 20 or recall this at all being discussed, this particular order 21 you have in front of me, Exhibit 7. 22 Q Now, in the fall of 1996, in and around the time 23 of the press release which I showed you earlier that was 24 prepared by the press secretary, John Huang was deposed. 25 That's what gave rise to the press release, correct? The 121 1 press release referenced John Huang. 2 A Yes, but I don't know if it gave rise to it. I 3 remember the press release. It's an exhibit, if I'm not 4 mistaken. 5 Q Right. It says in the second to the last 6 paragraph, "John Huang, a former Commerce official, has now 7 been thrust into this lawsuit. Mr. Huang had absolutely 8 nothing to do with the FOIA matter," et cetera. I read that 9 to you earlier. 10 So consequently, at the time of these meetings, the 11 issue of John Huang had arisen, correct? 12 A Yes. 13 Q Okay. And these meetings were being held to decide 14 what to do about this issue, correct? It had become a 15 national issue. 16 MS. BRASWELL: Objection. 17 JUDGE FACCIOLA: Overruled. 18 THE WITNESS: The meetings were being held to make 19 sure we responded correctly and appropriately and in a lawful 20 manner to all requests as a result of this issue. Yes. 21 BY MR. KLAYMAN: 22 Q And John Huang was discussed during these meetings, 23 correct? 24 A Let's see how I can be as accurate as possible. 25 Q Yes or no? 122 1 A Yes, his name came up. Sure. Of course it did. 2 Q Okay. And John Huang's role in producing documents 3 to Judicial Watch came up, correct? 4 A Well, I think what came up was -- I have no 5 recollection of how it came up. 6 Q Tell us what happened. 7 A All I know is that we -- I was told that John Huang 8 had nothing to do with the documents that were being 9 requested. 10 Q Who told you that? 11 A General Counsel. 12 Q Esserman? 13 A That's who the General Counsel was. Yes, sir. 14 I've testified to that. 15 Q All right. Did Ms. Esserman tell you that John 16 Huang had signed an affidavit attesting to the production of 17 documents in Judicial Watch's lawsuit? 18 A No, we never discussed that. I don't ever recall a 19 discussion about that. 20 Q Okay. You're aware that John Huang did submit a 21 certification in terms of producing documents to the Court 22 and Judicial Watch? 23 A No. I'm not aware of that. 24 Q No one's ever brought that to your attention? 25 A No. I'm not aware of that. 123 1 Q If you knew that, would you have allowed that press 2 release to issue, claiming this was politically motivated and 3 reckless? 4 A That's just speculation -- 5 MS. BRASWELL: Objection. 6 JUDGE FACCIOLA: Sustained. 7 BY MR. KLAYMAN: 8 Q Did you discuss during these meetings Judicial 9 Watch's allegations, which at the time were allegations, that 10 documents were suppressed, destroyed and withheld to this 11 Court? 12 A To the extent it was a public issue, we discussed 13 it generally, that those allegations had been made. 14 Q What was discussed? 15 A Well, that the allegations had been made; that they 16 were spurious, but that we ought to make sure in order that 17 no one could ever allege we didn't turn over every document 18 that we turned over every relevant document to any 19 institution that had a legal right to request documents from 20 the Department of Commerce. 21 Q Were you the one who raised the question these 22 allegations have been made, are they true? Since you're the 23 guy who was in charge? 24 A I'm not sure how it was raised. I was concerned 25 that we do everything appropriately, legally and not 124 1 embarrass the department or the administration or, as I said, 2 me, in responding to all of the requests which I've described 3 that would have been from Congress or the press or from 4 Judicial Watch -- let me just finish, I'm trying to answer 5 your question. So therefore, I would have -- I know I said 6 to them make absolutely certain you produce every document 7 that's required. 8 Q Have you -- 9 A In a timely manner. 10 Q Right. Have you had an opportunity to review Judge 11 Lamberth's orders in this case of December 22, 1998? There 12 were two orders. 13 A I'm not sure which ones you're referring to. I'm 14 sorry. 15 Q Have you recently reviewed orders that were issued 16 by this Court? 17 A The only thing I've reviewed is a paragraph in 18 Judge Lamberth's -- one of his orders which referred to my 19 appearance here today. 20 Q Okay. Have you reviewed Judge Lamberth's order 21 where he grants partial summary judgment for Judicial Watch 22 and orders that the case proceed in terms of discovery? 23 A No, I've not reviewed that. 24 MR. KLAYMAN: I'll show you what I'll ask the court 25 reporter to mark as Exhibit 8. 125 1 (Kantor Deposition Exhibit No. 8 2 was marked for identification.) 3 MR. KLAYMAN: And I'll ask that another order of 4 December 22nd be marked as Exhibit 9. 5 (Kantor Deposition Exhibit No. 9 6 was marked for identification.) 7 THE WITNESS: Yes, sir. 8 BY MR. KLAYMAN: 9 Q Looking at Exhibit 8, have you ever seen this court 10 order before? 11 A No, sir. 12 Q Are you aware that this court order makes a 13 finding of a likelihood of a deliberate and willful 14 disobeyance of this Court's orders in producing documents 15 to it? 16 MR. ROBBINS: Asked and answered. 17 JUDGE FACCIOLA: I'll overrule it. Not 18 necessarily. 19 MR. KLAYMAN: I'm not trying to characterize -- 20 THE WITNESS: No, I'm not aware of it. No, I'm 21 not. 22 MR. KLAYMAN: I was just trying to -- 23 JUDGE FACCIOLA: He's answered the question. Let's 24 move on. 25 MR. KLAYMAN: Okay. 126 1 BY MR. KLAYMAN: 2 Q Now, who was it who -- 3 A Excuse me, just a second, would you please. May I 4 ask my counsel a question? 5 MR. KLAYMAN: Yes. 6 JUDGE FACCIOLA: Of course. You always can. 7 THE WITNESS: Thank you very much. 8 (The witness conferred with counsel.) 9 THE WITNESS: Okay. Thank you. 10 BY MR. KLAYMAN: 11 Q Did you want to respond? 12 A No. No. No. I asked a question. 13 Q I'll show you Exhibit 9. Have you ever seen this 14 court order before? This is the one that orders your 15 deposition. 16 A I think you mean Exhibit 10, but that's -- 17 MR. ROBBINS: This is the one. 18 THE WITNESS: Oh, this one? Oh. I have -- if -- 19 MR. ROBBINS: Can I provide some information to 20 counsel with regard to this? 21 MR. KLAYMAN: I'd prefer I get it from the witness. 22 MR. ROBBINS: It won't be as useful to you, but 23 you're welcome to do it that way if you insist. 24 JUDGE FACCIOLA: May I make a suggestion? Would it 25 make any sense to go on to another line of inquiry and permit 127 1 the witness read that over the luncheon recess? It's quite 2 long. 3 MR. KLAYMAN: All right. Well, I'm just -- I 4 thought he could identify it because he said that he had in 5 fact seen it. 6 JUDGE FACCIOLA: Well, I don't know what you mean 7 identify it. 8 MR. ROBBINS: Your Honor -- 9 JUDGE FACCIOLA: It's a 62-page memorandum of 10 opinion. Identify it as what? 11 MR. KLAYMAN: Well, I agree, Your Honor. I don't 12 want to use time unnecessarily. 13 JUDGE FACCIOLA: It's silly to sit here and have 14 him turn pages. 15 BY MR. KLAYMAN: 16 Q All right. Do you want to look at it at lunch? 17 JUDGE FACCIOLA: Would you, as a courtesy to me, 18 Mr. Secretary, please look at it over -- 19 THE WITNESS: Yes, Your Honor. 20 JUDGE FACCIOLA: I would appreciate it, if you 21 would. It would save us all some time. 22 BY MR. KLAYMAN: 23 Q During these meetings that you had in the fall of 24 '96 where document production and Judicial Watch's lawsuit 25 was discussed, did you ask your staff to produce all records 128 1 to Judicial Watch and the Court? 2 A I asked my staff -- I directed my staff to produce 3 all documents to any entity under the appropriate 4 circumstances which was legally requested in a timely 5 fashion. 6 Q Now, if your staff has since -- if you've since 7 learned that your staff has not produced all those records, 8 are you under any duty to go back to ask them to now produce 9 them? 10 MS. BRASWELL: Objection. 11 MR. ROBBINS: Objection. 12 JUDGE FACCIOLA: Sustained. Sustained. 13 MR. ROBBINS: There's no pending question. 14 THE WITNESS: Okay. 15 MR. KLAYMAN: Your Honor, it bears on, again, 16 issues of -- 17 JUDGE FACCIOLA: He's in private life. What could 18 he possibly do? 19 MR. KLAYMAN: Well, he was there at the time. 20 JUDGE FACCIOLA: And he's now in private life. 21 MR. KLAYMAN: Well, in private life, one is still 22 responsible for one's prior private lives, generally 23 speaking. 24 JUDGE FACCIOLA: No, I don't believe that at all. 25 I've left the U.S. Attorney's Office. I'd be astounded if 129 1 someone would now come in and tell me, well, Facciola, on 2 your watch they screwed up in the case X, Y, Z, what are you 3 going to do about it? 4 The answer may be I personally regret that they 5 screwed up in X, Y, Z, but I'm mystified as to what I'm going 6 to be able to do about it. 7 MR. KLAYMAN: Well, I'm not going to speculate, 8 Your Honor, as to what you would do or what I would do, but 9 it was just a foundation question to ask whether since these 10 orders have issued he's made an inquiry with anyone as to 11 whether or not all the documents were produced. 12 MS. BRASWELL: Objection. 13 JUDGE FACCIOLA: Sustained. Suppose he did? What 14 difference would that make? 15 MR. KLAYMAN: Because the person may have said, no, 16 they weren't produced, here's what we didn't produce. 17 JUDGE FACCIOLA: Did you have any conversations -- 18 have you had any conversations since you've left the 19 Secretary of Commerce with reference to the assertion -- or, 20 I'm sorry, with reference to now the finding by Judge 21 Lamberth that in fact the production of the documents by the 22 Department of Commerce was not what it should have been? 23 THE WITNESS: No, sir. 24 BY MR. KLAYMAN: 25 Q Have you learned of these orders, Exhibits 9 and 130 1 10, through press reports before today? 2 MS. BRASWELL: Objection. 3 JUDGE FACCIOLA: No, I'll allow that. 4 Were you aware of the orders in any way? 5 THE WITNESS: Your Honor -- 6 JUDGE FACCIOLA: Let me be more specific. 7 THE WITNESS: Yes. Right. 8 JUDGE FACCIOLA: Other than press reports, did 9 anyone bring your attention to these decisions by Judge 10 Lamberth and ask for your views about them? 11 THE WITNESS: No, sir. 12 MR. KLAYMAN: Well, that -- I think that's a good 13 question, Your Honor, but we need to ask whether he learned 14 of them through press reports, too. 15 JUDGE FACCIOLA: How did you learn of the existence 16 of these orders, if at all? 17 THE WITNESS: I may have read The Washington Post 18 or New York Times and read about them. I can't even recall 19 now that I did at the time. 20 BY MR. KLAYMAN: 21 Q So before your deposition today, you knew that 22 there were court orders that were issued in December of last 23 year stating that there was a likelihood that documents 24 weren't produced to the Court? 25 A No. I think that's not my testimony. My testimony 131 1 I may have generally read about this, but I didn't recall, 2 and I wasn't aware of these orders. 3 Q Okay. But before you walked in here today, did you 4 know that the Court had issued some kind of a statement, 5 whether it was an order or any other kind of statement, that 6 it believes that not all the documents have been produced? 7 A No, not really. No. 8 Q What do you mean by "not really"? 9 A Well, I didn't know about that. I didn't know that 10 Judge Lamberth had issued any order which came to the 11 conclusion that certain documents weren't produced, if that's 12 what the order is. I've never read the orders, I don't 13 recall reading about them, but I'm sure -- I read the 14 newspaper like we all do every day, I probably did read it, 15 but if you asked me to recall today the article, I wouldn't. 16 And I can't. 17 Q I'm not asking you for the substance of the 18 conversation, but do you know whether your counsel has read 19 these orders? 20 A No, I don't. 21 MR. ROBBINS: I'll object to that. 22 THE WITNESS: No, I don't. 23 JUDGE FACCIOLA: He answered. 24 BY MR. KLAYMAN: 25 Q Now, who is the one, if anyone, at these meetings 132 1 that said, Secretary Kantor, we produced all the records to 2 Judicial Watch? 3 A If that was ever stated, I can't remember that it 4 was, number one; and, number two, I wouldn't remember who 5 said it, but I don't -- since Judicial Watch was not a 6 central subject of the conversations in these meetings I 7 referred to in the fall of 1996, I don't believe that ever 8 would have come up. 9 Q Mr. Kantor, maybe you can use -- and if necessary, 10 I'll bring with you proof of this, so it can help you, but in 11 the fall of 1996, there were no congressional inquiries. The 12 only thing around was Judicial Watch's case. 13 A That's just not correct, sir. I'm sorry. Your 14 memory is faulty. I'm not criticizing you, it is faulty. 15 In fact, we had numerous requests from Congress surrounding 16 this broad panoply of issues concerning fundraising, 17 concerning trade missions in the past, in the past, 18 concerning Department of Commerce activities, and we had 19 numerous requests from Congress and the press to produce 20 documents. 21 Q And you remember them quite vividly? 22 A I remember the situation quite vividly. I don't 23 remember each request, obviously, quite vividly. I don't 24 remember each meeting quite vividly. I do remember the 25 situation. 133 1 Q And what documents were being requested to be 2 produced about trade missions? 3 A A whole panoply -- 4 Q Well, tell me what you remember. You -- 5 MS. BRASWELL: Objection. 6 JUDGE FACCIOLA: Well, what's the objection? 7 MS. BRASWELL: Other requests coming in from other 8 entities for documents? How is that relevant? 9 JUDGE FACCIOLA: Because it relates back, as I 10 understand it, to the topic of those discussions in the 11 meetings. In other words, as the secretary has explained to 12 us, more or less simultaneously several things are going on. 13 One of them is Congress is making inquiry, Judicial Watch is 14 making a FOIA request, right? 15 MS. BRASWELL: Right. 16 JUDGE FACCIOLA: So Counsel is now probing about 17 these others because there is a possibility, I suppose he's 18 going to argue, that some of the documents were made 19 available to Congress but not made available to Judicial 20 Watch. So knowing very generally but not specifically what 21 other inquiries were made in that inquiry, I'll allow one or 22 two questions. 23 Do you understand what I'm talking about, 24 Mr. Secretary? 25 THE WITNESS: Oh, yes. I follow you. Sure, 134 1 Your Honor. 2 JUDGE FACCIOLA: Do the best you can on that and 3 then we'll move on. 4 THE WITNESS: Yes, the best -- the discussion -- 5 it was a wide ranging inquiry by more than one committee in 6 Congress, as I recall, with regard to this general concern 7 that existed. The meetings were about making sure that every 8 document requested that was in our possession that was 9 legitimate to be requested was turned over, not only just to 10 the Congress, to the press as well under FOIA. 11 BY MR. KLAYMAN: 12 Q What types of documents were being requested with 13 regard to trade missions? 14 A I can't recall specifically. I really can't. 15 Q Generally. 16 A Generally speaking, who went and how the missions 17 were put together and so on. I don't recall. Maybe the 18 criteria for the missions and so on, but I don't recall 19 because that really wasn't the -- of course, as you know, the 20 precise focus, that was just generally part of it. 21 Q Well, it's the precise focus of this case. 22 A I understand that, but this case -- 23 Q Among related issues. 24 A Let me say it again and maybe I haven't been clear 25 enough, and I apologize if I haven't, Judicial Watch and its 135 1 lawsuit which was pending at the time came up only in a 2 tangential manner because it was sort of part of the whole 3 atmosphere that surrounded this situation. 4 Q Well, you've previously testified that you think 5 Judicial Watch's lawsuit was politically motivated, correct? 6 A No, I think I testified that that was part of the 7 discussion between myself and Harold Ickes after we both had 8 left public life. 9 Q No, you made a statement this morning where you 10 said the lawsuit was politically motivated. 11 JUDGE FACCIOLA: Well, no, what he did -- 12 THE WITNESS: No, I didn't. I'm sorry. I didn't 13 say that. 14 JUDGE FACCIOLA: Excuse me, Mr. Secretary. 15 What he said was that a press release that 16 made that -- he stood by it because it was uttered when 17 he was Secretary of Commerce and he still stands by it 18 today. 19 MR. KLAYMAN: I never quibble with the Court, 20 Your Honor but -- 21 JUDGE FACCIOLA: Wonderful advice. 22 MR. KLAYMAN: But there was an earlier statement -- 23 but it doesn't matter that much, I'm just trying to identify 24 it. 25 JUDGE FACCIOLA: Okay. 136 1 BY MR. KLAYMAN: 2 Q But the fact is that this issue of John Huang came 3 up one week before the elections in 1996, correct? Judicial 4 Watch's deposition of Huang, correct? 5 A Judicial Watch's deposition of Huang? 6 Q Yes. 7 A I don't recall when that came up. I'm sorry. 8 Q And you are aware that this Court had difficulty 9 finding John Huang so that he could be deposed, 10 correct? 11 A I remember reading the newspaper that there was 12 difficulty in trying to find him. 13 Q And you recall that this Court had to actually 14 order marshals to go out to find John Huang, correct? 15 A I don't recall that at all. 16 Q And you recall the Court had to actually have the 17 marshall go over to bring Mr. Sandler of the Democratic 18 National Committee into the court, correct? 19 MS. BRASWELL: Objection. 20 MR. ROBBINS: Your Honor, is there a point to this? 21 JUDGE FACCIOLA: What does his knowledge of any of 22 these publicly-known events have to do with anything? 23 MR. KLAYMAN: Because -- because I'm getting to the 24 question. 25 JUDGE FACCIOLA: Good. Please do so. 137 1 BY MR. KLAYMAN: 2 Q And you are aware that certain political 3 commentators have written books since then, such as Elizabeth 4 Drew, which say that it was the John Huang spectacle of his 5 deposition which influenced the elections in 1996. 6 MS. BRASWELL: Objection. 7 BY MR. KLAYMAN: 8 Q Correct? 9 JUDGE FACCIOLA: Who cares about that? Let's move 10 on. Sustained. 11 MR. KLAYMAN: And here's the reason -- 12 JUDGE FACCIOLA: Sustained. 13 BY MR. KLAYMAN: 14 Q The reason that I'm asking the question, 15 Mr. Kantor, is it not true that you were very concerned 16 about this lawsuit and producing documents to Judicial 17 Watch in 1996 because in your view it was politically 18 motivated? 19 A Wait a minute. Wait. The answer is no, I wouldn't 20 have been concerned about producing documents with regard to 21 this lawsuit at all. 22 Q During these meetings that you had, did you or 23 anyone else ever say let's delay production until after the 24 election? 25 A Absolutely not. 138 1 Q Who spoke during these meetings? Who do you 2 remember speaking? 3 JUDGE FACCIOLA: Before you go on -- 4 Ms. Braswell, the absence of any objection by you 5 is very startling to me. I thought these were the meetings 6 as to which the Department of Commerce was asserting the 7 attorney-client privilege. 8 MS. BRASWELL: Your Honor, it's my understanding 9 that Mr. Kantor has testified that at these meetings there 10 were other individuals and -- 11 JUDGE FACCIOLA: Okay. So be it. 12 MS. BRASWELL: So this -- with that testimony, I'm 13 not asserting the attorney-client privilege. 14 JUDGE FACCIOLA: Thank you, Ms. Braswell. 15 MR. KLAYMAN: It's our position of record, 16 Your Honor, that even if there was one, it's waived at this 17 point. 18 JUDGE FACCIOLA: Don't quarrel with victory, 19 Mr. Klayman. 20 MR. KLAYMAN: Thank you. 21 BY MR. KLAYMAN: 22 Q Who do you remember speaking at the meetings? 23 A Oh, I don't remember any particular person speaking 24 or what they may have said. It's too long ago and I wouldn't 25 remember that. 139 1 Q Have you ever discussed production of documents in 2 this case with Leon Panetta or John Podesta? 3 A No. 4 Q Do you know of people who have discussed production 5 of these documents with Leon Panetta or John Podesta? 6 A No. 7 Q Have you ever discussed production of documents in 8 this case with Alexis Herman? 9 A No. 10 Q Did you ever have contact with Alexis Herman over 11 trade missions, about trade missions? 12 A I don't believe so. No. 13 Q Alexis Herman at the time was the Director of 14 Office of Public Liaison in the White House, correct? 15 A Yes, sir. I think so. 16 Q And that was the office which helped coordinate 17 Department of Commerce trade missions with business 18 executives, correct? 19 A If anyone at the department had discussions with 20 Alexis, it was peripheral at best because the department made 21 those decisions as to who went and what the mission was about 22 and the substance of them, but I would have no personal 23 knowledge of that. Frankly, Counsel, I don't know what 24 you're referring to. 25 Q In all due respect, Mr. Kantor, you're very 140 1 defensive when I ask you a question like that and I just 2 want to get a direct answer to the question. It was simple. 3 MS. BRASWELL: Objection. Argumentative. 4 JUDGE FACCIOLA: Just state your question. 5 MR. KLAYMAN: I'm trying to -- I'm trying to 6 convince the witness to be more responsive, Your Honor. 7 JUDGE FACCIOLA: I'm listening to the witness, too. 8 MR. KLAYMAN: And the question I'm asking is just 9 simply whether the Office of Public Liaison, Alexis Herman, 10 had some responsibilities in coordinating the participation 11 of executives on trade missions. 12 THE WITNESS: I would have no personal knowledge of 13 those conversations. 14 BY MR. KLAYMAN: 15 Q In fact, you are aware that before trade missions, 16 before executives actually went on trade missions, they went 17 over to the White House and had a briefing session with the 18 President and Vice President and the Commerce secretary, 19 correct? 20 A While I was Commerce secretary, we only did that 21 once and that was before I led the mission to Croatia and to 22 Bosnia to finish Ron Brown's mission which was, of course, 23 interrupted by his tragic death. 24 Q And that briefing session was coordinated in part 25 by Alexis Herman of the Office of Public Liaison. 141 1 A I don't know that as a fact, but it wouldn't 2 surprise me if it was. 3 Q Why wouldn't it surprise you? 4 A Because that was part of Alexis' job, but I 5 couldn't tell you that she was involved with that. I'm 6 just -- 7 Q Okay. So consequently, because -- 8 A I'm sorry to be defensive -- 9 Q Well, is it not likely, then, based on the fact 10 that it wouldn't surprise you that documents were sent by 11 the Commerce Department about trade missions to the White 12 House? 13 A What timeframe are you referring to? I'm sorry, 14 I -- 15 Q Generally with regard to trade missions. 16 A Which trade missions? 17 Q Well, I'm going to try to keep it general because 18 your memory is not specific, at least not up to this point in 19 time. I'm trying to ask a general question so I can just lay 20 a foundation. 21 A Well, of course, up until I became Secretary of 22 Commerce, I would have no knowledge of that whatsoever. When 23 I became secretary, in fact, it would have been appropriate, 24 proper and something I would have -- if I knew about it, 25 would have authorized to send documents to the White House to 142 1 inform them of a trade mission. Yes. 2 Q Now, in preparing for trade missions under 3 Ron Brown, you were a member of the cabinet at that time, 4 correct? 5 A Yes, I was. 6 Q Okay. Were trade missions ever discussed at 7 cabinet meetings? 8 A At cabinet meetings? 9 Q Yes. 10 A Never. No. 11 Q Is it not true that the Clinton presidency touted 12 itself as the trade presidency while you were U.S. Trade 13 Representative and then Secretary of Commerce? 14 A We did very well in trade and the President 15 was deeply involved in it. I don't know if we ever used 16 the term "the trade presidency." I don't recall ever 17 hearing that term, but I'm delighted to associate myself with 18 it. 19 Q Well, I've heard you say it a number of times. 20 A Yes, right. I, you know, tried to pat myself on 21 the back. Yes. 22 Q Right. In a former life, I was actually a trade 23 lawyer, Mr. Kantor. So didn't you make those statements, 24 that the Clinton presidency is the trade presidency? 25 A I don't think I ever used that term, but if I -- 143 1 you know what? I will associate myself with it, even if I 2 didn't. 3 Q Didn't you boast about the fact that this president 4 was doing more for international trade than any prior 5 president? 6 MS. BRASWELL: Objection. 7 THE WITNESS: Absolutely. Absolutely. 8 MR. KLAYMAN: Okay. Now -- 9 JUDGE FACCIOLA: I think we're -- 10 MR. KLAYMAN: What I'm getting to is -- 11 JUDGE FACCIOLA: Mr. Klayman -- 12 BY MR. KLAYMAN: 13 Q Wouldn't this have been a discussion, of these 14 trade missions of Ron Brown, at cabinet meeting? 15 A If they ever came up at a cabinet meeting, it 16 would have been so general and so limited as to not have been 17 memorable. The fact is we had very few cabinet meetings. 18 Q Is it not true that at some cabinet meetings there 19 were discussions of who should go on the trade missions? 20 MS. BRASWELL: Objection. 21 JUDGE FACCIOLA: Would you state your question 22 again, Mr. Klayman? Your voice dropped and I didn't hear it. 23 MR. KLAYMAN: Yes. 24 BY MR. KLAYMAN: 25 Q Is it not true that at some cabinet meetings there 144 1 were discussions of the business executives and companies 2 that should go on these trade missions? 3 JUDGE FACCIOLA: Is the objection based on 4 executive privilege? 5 MS. BRASWELL: Yes, Your Honor. 6 JUDGE FACCIOLA: Sustained. 7 MR. KLAYMAN: One thing I forgot to mention before, 8 Your Honor, only the President can take the executive 9 privilege. She can't take it. 10 JUDGE FACCIOLA: Well, I'll sustain it on the 11 grounds of relevancy. 12 MR. KLAYMAN: Well, it's clearly relevant. 13 MS. BRASWELL: Objection. 14 JUDGE FACCIOLA: I disagree. Please go on. 15 BY MR. KLAYMAN: 16 Q Clearly, the cabinet officials took notes at 17 cabinet meetings, did they not? 18 A Well, some did and some didn't. 19 Q And you saw Ron Brown taking notes at some cabinet 20 meetings, didn't you? 21 A Oh, I can't specifically recall whether Ron did or 22 didn't. 23 Q And when a cabinet official would go to a cabinet 24 meeting, did they sometimes bring in their chief of staff to 25 the cabinet meeting? 145 1 A Sometimes. 2 Q And you did see Ron Brown's chief of staff from 3 time to time, Mr. Stein, did you not? Rob Stein? 4 A Yes. 5 Q And you later saw William Ginsberg? 6 A Yes. 7 Q His later chief of staff -- 8 A Yes. 9 Q -- at cabinet meetings? 10 A Yes. Well, let me just say, I don't recall ever 11 seeing Bill Ginsberg at a cabinet meeting. Let me be careful 12 here. I was going too quickly. 13 I did see Rob Stein, but I don't recall seeing 14 Bill Ginsberg, but I didn't know him at the time so therefore 15 he may have been there and I just didn't recognize him. 16 Q Do you know Rob Stein? 17 A Yes. 18 JUDGE FACCIOLA: Okay. I've got 12:32. I think 19 we should stop for lunch right here. Shall we reassemble at 20 1:45? Is that acceptable? 21 MR. KLAYMAN: That's fine, Your Honor. 22 (Whereupon, a luncheon recess was taken at 23 12:32 p.m.) 24 * * * * * 146 1 A F T E R N O O N S E S S I O N 2 (1:53 p.m.) 3 Whereupon, 4 MICHAEL KANTOR 5 was recalled as a witness and, after having been previously 6 duly sworn, was examined and testified further as follows: 7 EXAMINATION BY COUNSEL FOR PLAINTIFF (RESUMED) 8 BY MR. KLAYMAN: 9 Q Mr. Kantor, before we took lunch, I was asking you 10 about the events of the fall of 1996. You were recounting 11 about various meetings that you had held where Judicial Watch 12 was discussed and I had asked you whether or not John Huang 13 came up in any of those discussions and I believe you 14 testified yes, correct? 15 A Not necessarily in connection with Judicial Watch. 16 Q In what context did he come up? 17 A Well, the Congress of the United States was asking 18 for documents relating to his activities while he was an 19 employee at the Department of Commerce and, of course, that 20 occurred before I became secretary. 21 He was no longer an employee when I came -- if I 22 might finish my answer -- and therefore Judicial Watch, its 23 lawsuit in sum, was a tangential, as I said, I think the word 24 I used, part of these discussions and did not come up 25 frequently. 147 1 The main issue was the press and the Congress 2 and their need for documents, or at least their request for 3 documents, I guess would be a better way of putting it. 4 Q But you were aware at the time that Judicial Watch 5 had requested and then deposed John Huang. 6 A I said I wasn't aware of the deposition when 7 it occurred and I'm not even sure I was aware afterwards 8 or immediately afterwards. It was not on my radar 9 screen. 10 Q Has the deposition ever been on your radar screen? 11 A No. 12 Q So to this day, until I told you that Judicial 13 Watch deposed Huang, you didn't know Huang had been deposed? 14 A I think I remember seeing on television -- now, 15 it may not be a Judicial Watch suit and you can correct me if 16 I'm wrong, I think it was a deposition of John Huang sitting 17 in a chair being deposed or asked questions on a news show 18 and it may have been your lawsuit. I don't know that for a 19 fact. 20 Q So I take it that the whole issue of John Huang and 21 his giving testimony was not something that really concerned 22 you back in 1996. 23 A No. No. 24 Q And, in fact, there was nothing in particular about 25 John Huang himself that concerned you in 1996. 148 1 MS. BRASWELL: Objection. 2 JUDGE FACCIOLA: Repeat the question, Mr. Klayman. 3 BY MR. KLAYMAN: 4 Q There was nothing about John Huang as a person that 5 caused any concern on your part. 6 A As a person? No. 7 MS. BRASWELL: Objection. 8 MR. KLAYMAN: Okay. 9 JUDGE FACCIOLA: He answered it. 10 BY MR. KLAYMAN: 11 Q And the fact that John Huang was in the public 12 domain was not something that troubled you. 13 MS. BRASWELL: Same objection. 14 MR. ROBBINS: Objection to the form. 15 MR. KLAYMAN: That's a little different question. 16 JUDGE FACCIOLA: Please state it again. 17 BY MR. KLAYMAN: 18 Q The fact that John Huang had been thrust into this 19 public domain with this feeding frenzy in the media, that 20 wasn't something that caused you any alarm. 21 MS. BRASWELL: Objection. 22 MR. ROBBINS: Renew the objection. 23 JUDGE FACCIOLA: Overruled. 24 Were you concerned about the publicity being given 25 to him? 149 1 THE WITNESS: My concerns were as Secretary of 2 Commerce to make sure the requests that were proffered to 3 the department from the media or from the Congress were 4 properly handled and we responded in an effective and timely 5 manner. 6 BY MR. KLAYMAN: 7 Q Right. But I didn't tie my question to that, so 8 let's take the requests out of that. I'm just asking you 9 about Huang. 10 Your general state of mind in the fall of 1996 11 was not to be concerned about Huang's being thrust into 12 this public domain with this media feeding frenzy. 13 A No, sir. I didn't know anything about the 14 situation. 15 Q You did know in 1996 that Huang had worked for the 16 Lippo Group. 17 A Only what I read in the newspaper. 18 Q Now, is it not true that the Lippo Group is a 19 client of your former firm? 20 MS. BRASWELL: Objection. 21 JUDGE FACCIOLA: Sustained. 22 You mean the firm of which he was a partner in 23 private life? 24 MR. KLAYMAN: Manatt Phelps. 25 JUDGE FACCIOLA: Sustained. 150 1 MR. KLAYMAN: It deals, Your Honor, with the 2 credibility of the testimony. 3 MS. BRASWELL: Objection. 4 JUDGE FACCIOLA: Sustained. 5 MR. KLAYMAN: Let me see if I can ask it a 6 different way. 7 BY MR. KLAYMAN: 8 Q Have you ever met John Huang? 9 MR. ROBBINS: Objection. 10 JUDGE FACCIOLA: Overruled. 11 MR. ROBBINS: Your Honor, may I ask for a proffer 12 of how it connects to the scope of this order? 13 JUDGE FACCIOLA: Let him ask it and we'll see where 14 he's going with this. 15 THE WITNESS: Mr. Klayman, I spent 20 years 16 practicing law in California. During that 20 years, I had 17 numerous and extensive activities civically and politically 18 in the state of California and nationally. 19 In connection with those activities, which were 20 extensive, I would -- I could not say that I didn't on 21 occasion shake hands and say hello to John Huang because 22 it appears from newspaper reports he was active in the Asian 23 community in political and civic affairs. 24 So therefore I can't say I didn't, but I don't know 25 him in the sense we would -- you and I might agree knowing 151 1 someone is having a substantive conversation or knowing him 2 as a person. I don't know him in that respect. 3 BY MR. KLAYMAN: 4 Q I didn't ask you that. I asked you whether you had 5 met with him. 6 A Well, I don't -- 7 Q Now -- 8 A I don't have any recollection -- let me just say I 9 have no recollection of it, but I don't want to mislead you. 10 It is quite possible during those 20 years that at some event 11 I didn't shake hands with John Huang, we weren't at the same 12 event together. 13 Q Okay. You are aware that the Lippo Bank has an 14 office on the 110 Freeway in Los Angeles, correct? 15 MS. BRASWELL: Objection. 16 JUDGE FACCIOLA: Sustained. 17 MR. KLAYMAN: It deals with whether or not -- okay. 18 Can I ask the follow-up question? I'll ask him -- 19 JUDGE FACCIOLA: You can ask whatever you want -- 20 MR. KLAYMAN: All right. Let me ask them and put 21 them on the record so we can -- 22 JUDGE FACCIOLA: You can litigate them later. 23 MR. KLAYMAN: -- litigate them later. So I don't 24 want Your Honor to feel that I'm going against the Court's 25 orders, but I'm just putting them on the record. 152 1 JUDGE FACCIOLA: I understand. 2 BY MR. KLAYMAN: 3 Q You are aware that Lippo Bank was incorporated in 4 the United States by your firm, Manatt Phelps, while you were 5 a partner there. 6 MS. BRASWELL: Objection. 7 MR. ROBBINS: Objection. 8 JUDGE FACCIOLA: Sustained. 9 BY MR. KLAYMAN: 10 Q You are aware that your former law firm continues 11 to represent Lippo Bank. 12 MR. ROBBINS: Objection. 13 MS. BRASWELL: Objection. 14 JUDGE FACCIOLA: Sustained. 15 BY MR. KLAYMAN: 16 Q And you are aware that John Huang had many meetings 17 at your law firm while you were a partner there in Los 18 Angeles. 19 MS. BRASWELL: Objection. 20 JUDGE FACCIOLA: Sustained. 21 BY MR. KLAYMAN: 22 Q You are aware that Mr. Huang was a client, that 23 Huang or Lippo or was a client, of your former firm, Manatt 24 Phelps? 25 MS. BRASWELL: Objection. 153 1 MR. ROBBINS: Same objection. 2 JUDGE FACCIOLA: Sustained. 3 BY MR. KLAYMAN: 4 Q Does that refresh your recollection as to whether 5 you've ever had any contact of any kind with Mr. Huang? 6 Contact of any kind? 7 MS. BRASWELL: Objection. 8 JUDGE FACCIOLA: I'll overrule that. 9 The one question I do permit is do you have a 10 moment in your mind, besides the possibility of an informal 11 meeting of the hundreds of meetings you attended when you 12 were involved in politics, do you ever have a recollection 13 being introduced to this man and it was said of him, "This 14 is Mr. Huang"? 15 THE WITNESS: I have no recollection of that. 16 JUDGE FACCIOLA: Do you have any recollection 17 specifically in the context of your practicing law being 18 introduced to him as the representative of a client? 19 THE WITNESS: No. 20 JUDGE FACCIOLA: So be it. 21 BY MR. KLAYMAN: 22 Q Have you ever discussed John Huang with anyone 23 outside of the Department of Commerce? 24 MS. BRASWELL: Objection. 25 JUDGE FACCIOLA: Sustained. 154 1 MR. KLAYMAN: I have to lay the foundation, 2 Your Honor. 3 JUDGE FACCIOLA: Then lay it. 4 BY MR. KLAYMAN: 5 Q Did you ever discuss John Huang's involvement in 6 Judicial Watch's lawsuit with anyone outside of the 7 Department of Commerce? 8 A I doubt that seriously. I am -- I doubt that 9 seriously. 10 Q So you don't know one way or the other? 11 MR. ROBBINS: No, that's not what he said. 12 THE WITNESS: I said, "I doubt it." 13 MR. KLAYMAN: Well -- 14 MR. ROBBINS: You see, when he does that, you don't 15 need to follow up. 16 MR. KLAYMAN: No, I'm allowed to ask questions, 17 Mr. Robbins, and I address the Court. 18 JUDGE FACCIOLA: Ask the question. 19 BY MR. KLAYMAN: 20 Q What do you mean by you "doubt that seriously"? 21 Does that mean you may have? 22 A I don't believe I ever had a conversation with 23 anyone outside of the Department of Commerce about John 24 Huang's involvement in the Judicial Watch lawsuit. 25 Q Did you ever have a conversation with anyone about 155 1 John Huang having taken documents out of the Department of 2 Commerce? 3 MS. BRASWELL: Objection. 4 JUDGE FACCIOLA: Overruled. 5 THE WITNESS: I'm trying to put this in -- 6 during the fall of 1996, there were allegations that 7 persons took documents either out of the Department of 8 Commerce or destroyed documents and it happened, obviously, 9 the allegation, much prior to my becoming Secretary of 10 Commerce. And so in that context, his name may have come 11 up, although I can't remember that. It may have come up. 12 That was part of the conversation of my trying to 13 ensure that there would be no question that every document 14 required was going to be turned over in the appropriate way. 15 BY MR. KLAYMAN: 16 Q Well, you're very certain that you made the 17 statement turn over every document in the appropriate way. 18 A Yes. Absolutely. 19 Q Okay. What do you mean by "appropriate way"? 20 A Whatever the law required. 21 Q Did you go through the law with your counsellors? 22 MS. BRASWELL: Objection. 23 MR. KLAYMAN: I'm not asking what was said, I'm 24 allowed to identify whether he went through the law, subject 25 to my other objections. 156 1 JUDGE FACCIOLA: Well, let me ask you a question. 2 Do you recall -- without telling us what you told 3 them or what legal advice they rendered, do you remember at 4 any moment sitting down with members of the General Counsel's 5 office at the Department of Commerce and receiving any form 6 of advice with reference to crimes under the Freedom of 7 Information Act? 8 THE WITNESS: Yes. 9 MR. KLAYMAN: Your Honor, we believe we can get 10 into this in toto, but obviously we're going to have to 11 address that. 12 JUDGE FACCIOLA: Well, the situation I have, 13 and I'm going to have to turn to Ms. Braswell now. 14 Now, Ms. Braswell, we're back into the 15 attorney-client privilege and what I just was trying to do 16 was to draw the distinction between, as I understand the law, 17 which I think you would agree with me, that the conversation 18 took place is appropriate. 19 MS. BRASWELL: That's correct. 20 JUDGE FACCIOLA: In the same sense that if I retain 21 a lawyer for a particular purpose, it is appropriate to ask 22 me whether I retained counsel to draft my letter. 23 At that point, however, the inquiry must stop if I 24 ask what did counsel say to you and what did counsel say to 25 me. 157 1 MS. BRASWELL: That's my understanding, with 2 the caveat, Your Honor, that under some circumstances even 3 revealing the fact of the communication may reveal 4 attorney-client privileged information. 5 JUDGE FACCIOLA: And I have so ruled in a reported 6 decision, but I don't think this is one instance because we 7 have an agency official speaking to General Counsel. That an 8 agency official speaks to his lawyer hardly reveals a 9 confidence. 10 MS. BRASWELL: Right. 11 JUDGE FACCIOLA: We are agreed. 12 You may proceed. 13 MR. KLAYMAN: My question was, Your Honor, does 14 your -- I mean, where would your ruling be if I asked him 15 what was said because this gets to the core issue of the 16 case in terms of producing documents to this court? 17 JUDGE FACCIOLA: Well, Ms. Braswell has asserted, 18 I take it from her objection, a continuing objection on the 19 grounds of the attorney-client privilege. 20 MS. BRASWELL: Absolutely. To conversations with 21 counsel. 22 MR. KLAYMAN: But -- 23 JUDGE FACCIOLA: Now, at that point, however, she 24 shifted grounds before lunch and, if you remember, I asked 25 her, I was a little surprised why she was not asserting that 158 1 objection and she explained to me because she understood the 2 secretary to say that when these conversations took place 3 other people were present and therefore the privilege was 4 gone. 5 Now, if that's still the situation, I'll await for 6 her to either assert that objection or not as she sees fit, 7 but independent of that objection, whether or not anyone else 8 was present, you still can ask a person if he brought up a 9 certain topic with his lawyer in a general way: did you hire 10 Mr. X to represent your family in the X, Y, Z litigation. 11 Now, when we get into the question of whether or 12 not you will be permitted to inquire in terms of what the 13 witness said to the lawyers and the lawyers said to the 14 witness, we'll have to see if Ms. Braswell asserts an 15 objection on behalf of the Department of Commerce. 16 MR. KLAYMAN: Right. And that was my question. 17 JUDGE FACCIOLA: Well, let's see. 18 BY MR. KLAYMAN: 19 Q Who did you have these discussions with? 20 A About what? I'm sorry. 21 Q The legal requirements of producing documents -- 22 A With counsel. 23 Q -- to the Court in this case? 24 A With counsel. Department of Commerce counsel. 25 Q Which counsel? 159 1 A Well, Sue Esserman and I'm not sure who else. 2 Barbara might have been in the room as well, but certainly 3 that was with counsel. 4 Q And who inquired of whom first of the legal 5 requirements, you or Ms. Esserman or Barbara Fredericks? 6 A Oh, I can't recall at this point. Sue had open 7 access to my office, she could have come in in the morning 8 and said we need to talk about his, or I could have said, 9 you know, we need to talk about this, I need your advice. 10 It's not particularly relevant or interesting. 11 Q Well, we'll let the Court decide that, but 12 notwithstanding that, you say you don't know what was said? 13 MS. BRASWELL: Objection. 14 JUDGE FACCIOLA: On the grounds of the 15 attorney-client privilege? 16 MS. BRASWELL: On the grounds of the 17 attorney-client privilege. 18 JUDGE FACCIOLA: Sustained. 19 MR. KLAYMAN: This is an issue, Your Honor, where 20 we maintain Judge Lamberth has already ruled on it. 21 JUDGE FACCIOLA: So be it. But, Mr. Klayman, as I 22 understand it, Ms. Braswell's objection is often a function 23 of whether anyone else is in the room and if you wish to 24 pursue who else was present, I will permit that inquiry, so 25 that Mr. Braswell can make an informed objection. 160 1 BY MR. KLAYMAN: 2 Q Was there somebody else present when this legal 3 advice was discussed? 4 A When the legal advice was discussed? 5 Q Yes. 6 A No. Not anyone who was not acting as a lawyer for 7 the Department of Commerce and me. 8 Q And here's the problem I'm having. If you can't 9 remember who was at these meetings, how can you make such a 10 definitive statement? 11 A Well, because, Mr. Klayman, I know this might shock 12 you, but I'm a lawyer as well and I know the difference 13 between getting legal advice and having a general discussion 14 about a particular political situation that you're trying to 15 handle in a way that is appropriate and responsive. And when 16 I was getting legal advice, I wanted to be with my lawyers. 17 When it was strictly legal advice. When it broadened beyond 18 that, I needed other people in the room who might know the 19 factual situation. 20 Q Well, Mr. Kantor, if I go to the judge in this case 21 with this request to get your testimony based upon his prior 22 ruling and all of the matters I've put on the record and the 23 judge rules that I can get the testimony, will you be able to 24 tell us exactly what legal advice was provided? 25 MR. ROBBINS: Let me just ask -- if I could 161 1 just inquire -- if you have -- since I'd prefer not to 2 inconvenience my client further by having to come down 3 here on another occasion, so if you have a ruling that you 4 could proffer to us now, right now, in which Judge Lamberth 5 has ostensibly ruled that we do not have a privilege in what 6 strikes me as an archetypically privileged setting, I will 7 first of all be mystified, but second of all I will instantly 8 yield to that authority and -- 9 JUDGE FACCIOLA: It may be not for you to yield. 10 Ms. Braswell -- 11 MS. BRASWELL: Yes, I was about to say that -- 12 MR. ROBBINS: Well, let me just say, I will urge -- 13 JUDGE FACCIOLA: -- represents the United States -- 14 MR. ROBBINS: I would urge government counsel to 15 reconsider the objection so that we don't have to schlep down 16 here again. So if there is such a ruling, I'd love to see 17 it. 18 MS. BRASWELL: I am of the same view, Your Honor. 19 Because I have not been on this case since the inception -- 20 MR. ROBBINS: Let's see it. 21 MS. BRASWELL: If the judge has ruled that the 22 Department of Commerce may never assert an attorney-client 23 privilege for any witness that it has for any discussion it 24 had, I'd like to see it. 25 JUDGE FACCIOLA: Well, it's a little more careful 162 1 than that, Ms. Braswell. As I understand Mr. Klayman, he is 2 saying that Judge Lamberth has rejected that when one gets 3 into the precise question of the advice that was given to 4 Department of Commerce officials as to how to respond to this 5 FOIA request, Mr. Klayman is claiming that Judge Lamberth has 6 ruled that the privilege is unavailable. Now, I do not know 7 whether that is because of the crime/fraud exception or some 8 other reason. 9 MR. KLAYMAN: Your Honor, I'll be happy to send 10 our -- 11 JUDGE FACCIOLA: Well, if you can tell us where it 12 is the record -- 13 MR. KLAYMAN: -- our young lawyer over there -- 14 but this occurred on numerous occasions in the depositions 15 themselves. 16 If Ms. Braswell had had the opportunity to read 17 them, she would know that we've never had this difficulty 18 before, so I didn't anticipate it today. It's the first 19 time. 20 MR. ROBBINS: Well, I'm afraid I'm puzzled because 21 counsel has represented that there is such a ruling. Let's 22 see it. 23 MR. KLAYMAN: Well, that's fine. I'll try to 24 get it. 25 MR. ROBBINS: Good. 163 1 MR. KLAYMAN: But I didn't anticipate, frankly, 2 that Ms. Braswell would raise an objection to something which 3 has already been ruled upon by this Court both orally and 4 perhaps in a written order. 5 We have some of the transcripts of the hearings, we 6 have some orders, I'm sending our paralegal back, but he may 7 not find it today. But the fact is if you look at the record 8 in this case, you'll see that this has never, ever been an 9 issue. 10 MR. ROBBINS: Well, actually, apparently, we'll 11 find that it has been an issue because apparently it's 12 subject to an order. 13 JUDGE FACCIOLA: Okay. Let's move on. 14 MR. KLAYMAN: It's been an issue not since the 15 order. 16 MR. ROBBINS: Well, let's look at the order and 17 we'll see. 18 BY MR. KLAYMAN: 19 Q So the question is, Mr. Kantor, I'm not going to 20 ask this every time, but if we did to your satisfaction of 21 your counsel show you that in fact that there's been an order 22 of the Court or that this matter has been waived repeatedly 23 through various depositions and you were able to testify as 24 to the advice that was provided, could you tell us what that 25 advice was? Would you remember it? 164 1 MS. BRASWELL: You can simply answer yes or no if 2 you would remember the advice, without saying what the advice 3 was. Would you remember it? 4 THE WITNESS: Generally. 5 BY MR. KLAYMAN: 6 Q Without asking the advice, what do you mean by 7 "generally"? Do you remember more than whether advice was 8 provided? 9 A Barely more. 10 Q Did you ever have conversations about producing 11 documents in this case, this is just to clarify, with 12 either lawyers when a non-lawyer was present or with 13 non-lawyers? 14 MS. BRASWELL: Your Honor -- 15 THE WITNESS: I don't understand the question. 16 MS. BRASWELL: May I raise an objection to the 17 extent that the question has to be whether or not there were 18 individuals who were present who are not an integral part of 19 the attorney-client discussions. 20 JUDGE FACCIOLA: I agree with you, Ms. Braswell, 21 I thought he was asking it somewhat quite differently, 22 which is did he ever receive any form of advice about how 23 to comply from a person who was not a lawyer. Or did I -- 24 THE WITNESS: While I was Secretary of Commerce? I 25 mean, that was not -- 165 1 MR. KLAYMAN: That's the substance of the question. 2 THE WITNESS: Is that what you're -- while I was 3 Secretary of Commerce? 4 THE WITNESS: Not if I was having a general 5 discussion in my back yard about American politics in 1999. 6 I assume that's not part of the question. 7 JUDGE FACCIOLA: Yes, that's a reasonable 8 assumption. Did there ever come a time -- 9 THE WITNESS: I mean, because the question wasn't 10 proffered that way. 11 JUDGE FACCIOLA: Did there come a time -- if you 12 would focus your mind, Mr. Secretary, on that period of time 13 where, as you explained to us, it's the fall of 1996, 14 inquiries are coming at you from various sources. We've just 15 gone through some questions and a privilege has been asserted 16 with reference to FOIA. 17 Counsel's question, as I understood it, do you 18 recollect that there was a time where you discussed how one 19 complies with FOIA with someone who was not a lawyer? 20 THE WITNESS: There were a series of meetings, some 21 were strictly with lawyers, some had lawyers and non-lawyers. 22 The Judicial Watch case, as I said, was tangential at those 23 meetings and rarely came up. I think I said it came up maybe 24 two or three times. Most of it was about press or the press 25 requests, or Congress. 166 1 Now, it is possible, although I don't remember it, 2 it is possible, that someone may have talked about FOIA and 3 its requirements to everyone in the room while we were 4 sitting there to make sure everyone complied appropriately. 5 In fact, I would guess that that happened, although if you 6 ask me now do I remember the specific conversation, of course 7 I don't remember that. But it was something we had to pay 8 attention to and we were concerned about. 9 MR. KLAYMAN: Here's my dilemma, Your Honor, is 10 that since he can't remember the mix of people in the 11 meetings and since they've asserted a blanket privilege, if 12 Your Honor's objection continues to be sustained, we'll never 13 find out what was said even when there were non-lawyers in 14 the room. 15 JUDGE FACCIOLA: Well, as I understand it -- no, 16 that's not how I understand it. As I understand it, 17 Ms. Braswell has indicated that she is objecting to any 18 questions about legal advice given by the attorneys or 19 confidential communications that the secretary had about 20 those conversations with lawyers when no one else was 21 present. 22 MS. BRASWELL: That's correct. And no one else who 23 was an integral part of those was. 24 JUDGE FACCIOLA: She will not assert the privilege 25 as to advice the secretary got from people who are not 167 1 lawyers or to advice given the secretary by a lawyer when 2 there was someone in the room who was not a lawyer. 3 MS. BRASWELL: Or who was not an integral part -- 4 MR. KLAYMAN: I understand that. 5 JUDGE FACCIOLA: Or an integral part. And not 6 essential to the provision of legal advice. 7 MS. BRASWELL: That's correct. 8 JUDGE FACCIOLA: Is that you would phrase it, 9 Ms. Braswell? 10 MS. BRASWELL: That's correct. 11 MR. KLAYMAN: I understand that -- 12 JUDGE FACCIOLA: So if in that room there was 13 a paraprofessional who had a particular skill in the 14 interpretation of the FOIA and that paraprofessional was 15 there for the purpose of aiding counsel to advise the 16 secretary correctly, you would argue that under existing law 17 their presence does not constitute a privilege. 18 MS. BRASWELL: That does not constitute a waiver. 19 That's correct. 20 JUDGE FACCIOLA: A waiver of the privilege. 21 I'm sorry. 22 MR. KLAYMAN: But here's the dilemma, is that 23 according to Mr. Kantor's testimony, he says he can't 24 remember specific meetings when non-lawyers were present or 25 not present, so consequently, they've effectively thrown a 168 1 blanket privilege over every meeting. 2 JUDGE FACCIOLA: Well, no. 3 MS. BRASWELL: No, Your Honor, we've allowed a 4 lot of testimony about -- right before lunch, in fact, when 5 the Court brought the issue up. He's testified a lot about 6 what happened at meetings. It was only when he was asked 7 specifically about meetings with his counsel that we asserted 8 the attorney-client privilege. 9 JUDGE FACCIOLA: That's right. 10 Now, Mr. Secretary, I hope we are not 11 misinterpreting you, but you're telling us there were certain 12 meetings which you do now recall in which you were discussing 13 the general question of how one replied to all of these 14 inquiries, including FOIA requirements, when in that room 15 there were lawyers and also people who were non-lawyers and 16 who were not there for the purposes of assisting giving you 17 the advice, because their expertise might have dealt with the 18 politics of the situation or the public relations aspects of 19 the situation. 20 THE WITNESS: Or even, Your Honor -- the answer is 21 yes. Or even, Your Honor, dealing with where the documents 22 might be found and how to cull them up or bring them up. 23 Yes. Sure. 24 JUDGE FACCIOLA: Now, if you would focus solely on 25 those meetings, not those intimate meetings you had -- 169 1 THE WITNESS: Sure, I understand. 2 JUDGE FACCIOLA: Those that I think counsel has the 3 right to inquire about, those -- 4 THE WITNESS: And I'm delighted to answer the 5 questions. 6 JUDGE FACCIOLA: Then let's proceed on that basis. 7 MR. KLAYMAN: Go ahead. 8 THE WITNESS: What's -- 9 JUDGE FACCIOLA: Thinking about, if you will, 10 Mr. Secretary -- 11 THE WITNESS: Yes. 12 JUDGE FACCIOLA: Those meetings -- 13 THE WITNESS: The meetings, first of all, as I 14 recall, basically involved the General Counsel explaining 15 what FOIA required and what the requests were and how 16 extensive and what documents might be involved and explained 17 to the people in the room that we wanted full and complete 18 and timely compliance. And to put as many resources on it as 19 necessary to get it done. 20 We reviewed the requests from either Congress or 21 the press, we reviewed -- there was a huge range of requests, 22 as you can imagine. 23 JUDGE FACCIOLA: Surely. 24 THE WITNESS: And then talked about what kind of 25 personnel it would need and how long it would take. And I 170 1 tried to put as short a timeframe on that as possible to push 2 people to comply. 3 JUDGE FACCIOLA: Thank you. 4 BY MR. KLAYMAN: 5 Q Okay. Well, and now the question is specifically, 6 what were the criteria to produce or not to produce documents 7 that were discussed in those meetings? 8 A To err on the side of production. In other words, 9 if there was any question whether or not the document was 10 producible under FOIA, if FOIA was -- or under the request of 11 Congress, to produce it rather than withhold it. 12 Q Was there a discussion of how you determined 13 specifically what to produce and what not to produce? 14 A To some degree in those meetings. My guess is 15 outside of my presence in follow-up meetings it was much more 16 detailed and much more extensive. 17 Q What was discussed to some degree? 18 A What was requested, the category of documents. 19 What parts of the department might have these documents. 20 What kind of timeframe could we expect. And then what the 21 criteria of FOIA was in terms of -- either FOIA or the 22 congressional requests and how they might fit within the 23 rubric of setting criteria to go find the documents. 24 Q Was there a specific discussion that we need to 25 produce anything dealing with donors to the Democratic Party 171 1 related to the trade missions at issue in the requests? 2 A Mr. Klayman, I don't remember that subject. It 3 might have been a subject of a request and, if it was, I 4 don't remember a specific discussion, but, if it was, we 5 would have said turn over every document you have. 6 That was -- we were -- my view of this, if you want 7 my state of mind, which I assume he has every right to if 8 we're talking about these meetings that His Honor has -- my 9 state of mind was do not under any circumstances withhold a 10 document if you think it's even within the conceivable range 11 of what's being requested; you'll get more criticism by 12 withholding even if you're legally correct than just turning 13 it over. 14 Q In the fall of 1996, were you aware of any 15 political ramifications that could result if in fact Judicial 16 Watch's allegations were true, that seats on trade missions 17 paid for by taxpayers were being sold for political campaign 18 contributions? 19 MS. BRASWELL: Objection. 20 JUDGE FACCIOLA: Overruled. 21 THE WITNESS: Was I aware of the political 22 ramifications? Of course I was. 23 BY MR. KLAYMAN: 24 Q And what were those ramifications? 25 MS. BRASWELL: Objection. 172 1 JUDGE FACCIOLA: Sustained. 2 BY MR. KLAYMAN: 3 Q In your own mind. 4 MS. BRASWELL: Objection. 5 MR. KLAYMAN: State of mind, Your Honor. 6 JUDGE FACCIOLA: State of mind as to what? What 7 might lead him to direct that the search be done in a certain 8 way? 9 MR. KLAYMAN: Correct. 10 JUDGE FACCIOLA: All right. Let me ask you -- 11 then let's see if we can narrow the question. 12 Mr. Secretary, did you give any thought or did you 13 have any thought as to whether or not the disclosure that was 14 going to be made to the Judicial Watch FOIA request would 15 have political ramifications for yourself and the party of 16 which you are a member? 17 THE WITNESS: One, my state of mind at the time was 18 that in fact the procedures were followed in terms of these 19 trade missions and that wasn't the case. Two, however, if 20 there was such a document or that did occur, of course I was 21 aware of that, but that was not as important to me as 22 complying. 23 JUDGE FACCIOLA: But Counsel's point is that being 24 sophisticated in the ways of Washington, you appreciated, 25 did you not, that if there were disclosure of documents, if 173 1 those documents were embarrassing and suggested that in fact, 2 despite anyone's protestations, the likelihood that you were 3 on the trade mission was a function of your last 4 contribution, you appreciated the ramifications to the party 5 of which you were a member would not be good. 6 THE WITNESS: Well, of course. 7 MR. KLAYMAN: Thank you, Your Honor. 8 BY MR. KLAYMAN: 9 Q In fact, you were an advisor to the Clinton-Gore 10 campaign in the fall of '96, were you not? In your personal 11 capacity, you did render advice to the campaign? 12 A Oh, yes. In my personal capacity? Sure I did. 13 Yes. 14 Q And what types of advice did you render? 15 MR. ROBBINS: I'm sorry, what? 16 BY MR. KLAYMAN: 17 Q What types of advice did you render? 18 MR. ROBBINS: I object to that. 19 MR. KLAYMAN: There's no privilege. 20 JUDGE FACCIOLA: Let's see if we can do it -- 21 When you were giving advice to this political 22 campaign, did a portion of your advice deal with this problem 23 that you had confronted? 24 THE WITNESS: No. 25 JUDGE FACCIOLA: Never? 174 1 THE WITNESS: No. Never came up. 2 JUDGE FACCIOLA: The question of the political 3 ramifications of Judicial Watch's lawsuit and the 4 consequential disclosure of documents, was that ever a 5 subject of any advice you gave to anyone? 6 THE WITNESS: In the Clinton campaign? 7 JUDGE FACCIOLA: Yes. 8 THE WITNESS: No, sir. 9 MR. KLAYMAN: Can I ask one other question? 10 BY MR. KLAYMAN: 11 Q Did you ever discuss the whole issue of whether 12 government services were being sold for campaign 13 contributions in 1996 in the context of your advisor role 14 to the Clinton-Gore campaign? 15 A No. It was not an issue. 16 Q Have you ever seen Judicial Watch's FOIA request? 17 A I don't recall seeing it physically. I don't 18 recall seeing it, but that doesn't -- I just -- no. The 19 answer is no, I don't recall seeing it. If that's your 20 question, no is the answer. 21 MR. KLAYMAN: I'll show you what I'll ask the court 22 reporter to mark -- 23 What number are we on? 24 THE COURT REPORTER: 10. 25 MR. KLAYMAN: As Exhibit 10, it's Judicial Watch's 175 1 FOIA request of September 12, 1994. 2 (Kantor Deposition Exhibit No. 10 3 was marked for identification.) 4 MR. KLAYMAN: Exhibit 11 is Judicial Watch's FOIA 5 request of September 13, 1994. 6 (Kantor Deposition Exhibit No. 11 7 was marked for identification.) 8 MR. KLAYMAN: And Exhibit 12 is Judicial Watch's 9 FOIA request of October 19, 1994. 10 (Kantor Deposition Exhibit No. 12 11 was marked for identification.) 12 THE WITNESS: So it's September 12, September 13, 13 October 19? 14 MR. KLAYMAN: Correct. 15 THE WITNESS: 1994? 16 MR. KLAYMAN: Correct. They're all 1994 for this 17 lawsuit. So you've got Exhibit 10, which is September 12th; 18 you've got Exhibit 11, which is September 13th; and you've 19 got Exhibit 12, which is October 19th; all 1994. 20 Take an opportunity, Mr. Kantor, to review those. 21 THE WITNESS: I've looked at them. 22 BY MR. KLAYMAN: 23 Q Have you ever seen them before? 24 A No. 25 Q During the time that you were at the Department of 176 1 Commerce as secretary, did you ever ask to see them? 2 A No. 3 Q As Secretary of Commerce sitting atop the agency 4 with a case which had become somewhat controversial, giving 5 rise to a press release accusing Judicial Watch of 6 recklessness and political motivation, didn't you think it 7 important to actually see the FOIA requests? 8 MR. ROBBINS: Objection. Argumentative. Move to 9 strike. 10 JUDGE FACCIOLA: It is argumentative. Sustained. 11 MR. KLAYMAN: Can I ask it a different way? 12 JUDGE FACCIOLA: Try. 13 BY MR. KLAYMAN: 14 Q Wasn't it important, given the fact that 15 allegations had been made that documents had not been 16 produced to Judicial Watch and the Court, as Secretary of 17 Commerce, to ask to see the actual FOIA requests? 18 MR. ROBBINS: Same objection. Move to strike. 19 JUDGE FACCIOLA: Overruled. 20 THE WITNESS: No. 21 BY MR. KLAYMAN: 22 Q Why wasn't it important? 23 MS. BRASWELL: Objection. 24 MR. ROBBINS: Same objection. 25 JUDGE FACCIOLA: Sustained. 177 1 MR. KLAYMAN: Goes to state of mind again, 2 Your Honor. 3 JUDGE FACCIOLA: But he told you that he was not 4 concerned, so if he was not concerned, why is it relevant 5 that he's not -- the reason why he's not concerned? 6 MR. KLAYMAN: No reflection on Mr. Kantor, but 7 we've been very clear in this case, the judge sets it forth 8 in the order itself, the December 22nd order, that Judicial 9 Watch and other entities had made the allegations that this 10 case showed criminal activity in the Clinton administration 11 and the very fact that he's not concerned about it, is he not 12 concerned about it because he asked other people to deal with 13 it because he didn't want to be involved in it? 14 MR. ROBBINS: Objection. 15 MR. KLAYMAN: That's one example. If he didn't 16 want to have his hands on the issue. 17 MR. ROBBINS: Object to all of that 18 characterization as grossly misleading. Move to strike. 19 MR. KLAYMAN: Well, I'm just trying to give an 20 example as a proffer. 21 MR. ROBBINS: No, you're trying to mislead and 22 mischaracterize the witness, is what you're doing. 23 JUDGE FACCIOLA: Okay. The objection is sustained. 24 Let's move on. 25 THE WITNESS: I'm sorry, Your Honor? 178 1 MR. ROBBINS: There is no pending question. 2 MS. BRASWELL: It was sustained. Move on. 3 BY MR. KLAYMAN: 4 Q Who was directing in the Department of Commerce the 5 responses to Judicial Watch's FOIA requests? 6 A In the General Counsel's office? 7 Q If you weren't -- 8 A When I was there, the General Counsel's office. 9 Q Okay. If you weren't the guy who was in control, 10 which seems to be what you're saying, if you didn't look at 11 the FOIA requests, then who was? 12 MS. BRASWELL: Objection. 13 JUDGE FACCIOLA: Please don't characterize his 14 testimony. 15 Who was in charge of responding to the Judicial 16 Watch FOIA requests? 17 THE WITNESS: General Counsel's office. 18 JUDGE FACCIOLA: Okay. And to what extent did you 19 at all supervise that, Mr. Secretary, besides -- 20 THE WITNESS: To the extent it was necessary for me 21 to do so. 22 JUDGE FACCIOLA: During the course of that 23 supervision, did you ever ask to see the Judicial Watch 24 requests? 25 THE WITNESS: In 1994? Those requests? 179 1 JUDGE FACCIOLA: Did you ever ask your General 2 Counsel, by the way, let me see that thing, let me look at 3 it? 4 THE WITNESS: No. 5 BY MR. KLAYMAN: 6 Q Did you ever review documents produced to Judicial 7 Watch in response to its FOIA requests? 8 A No. 9 Q Do you know of anyone who did? 10 A This happened in 1994. I have no idea. I was the 11 U.S. Trade Representative. I had no connection to this. 12 Q I'm talking about -- there were documents produced 13 after you became Secretary of Commerce in this case. In 14 fact, they've been produced up to just the last few months 15 continuously. Now, were you aware of anyone reviewing 16 documents produced to Judicial Watch in this case -- 17 A Aware of people who were reviewing documents? 18 Q The names of people. 19 A Yes, I was aware of people reviewing documents -- 20 Q Okay. Who? 21 A -- under the supervision of Sue Esserman and the 22 General Counsel's office and I trusted that they would 23 produce all relevant documents that were required in this 24 lawsuit or in any other matter. 25 Q And who in addition to Ms. Esserman were you aware 180 1 was in charge of reviewing documents or participating? 2 A Oh, I would assume -- it took up a large -- not 3 just this lawsuit, the entire -- now, when I talk about the 4 entire situation, the Congress, the press, I assume some 5 parts of this lawsuit, although that was not our major 6 concern at that time because it was not the major request 7 that was pending, I assume much of the General Counsel's 8 office was involved in that. 9 Q Do you have any names? 10 A No, I do not. 11 Q Anyone outside of the General Counsel's office who 12 participated in reviewing and producing documents to -- 13 A You would have to ask the General Counsel's office. 14 MR. KLAYMAN: There in a nutshell, Your Honor, is 15 why there can be no privilege. They were actually in charge 16 of producing documents, so if there's a privilege there then 17 we'll never get any testimony. 18 MS. BRASWELL: Your Honor, I think there's a 19 difference between -- if I might speak to it -- between 20 situations in which they're being asked for legal advice. 21 It depends upon what the questions are. 22 He's already deposed people from the Office of 23 General Counsel, so to say that he's not going to be able to 24 get any information from them is a gross misstatement of the 25 record. 181 1 JUDGE FACCIOLA: I persist in my ruling. Please go 2 on. 3 BY MR. KLAYMAN: 4 Q Before the lunch break, you had a name that you 5 wanted to give us. 6 A Yes. 7 Q And what is that? 8 A The person in charge of my schedule was Dalia, 9 D-a-l-i-a or D-a-h-l-i-a, Traynham, T-r-a-y-n-h-a-m. 10 Q When did she become in charge of your schedules? 11 A When I became Secretary of Commerce. She was 12 already the scheduler at the Department of Commerce for the 13 secretary. 14 Q And did she remain your scheduler throughout your 15 time as Secretary of Commerce? 16 A Yes. That's correct. 17 Q When you took over as -- well, I'll get to that 18 later. Who -- now that you've had a chance to reflect over 19 lunch, can you remember anyone other than Ms. Esserman and 20 your chief of staff who was present during any of the 21 meetings where Judicial Watch was discussed? 22 A There could have been a variety of people. No, 23 I don't remember. 24 Q Who could it have been? 25 A We've gone over that, Counsel. I -- you know -- 182 1 Q Well, we didn't actually. 2 A In fact, we did. 3 Q We just started touching on it before the break. 4 A Even at 59, I remember that. 5 Q Before the break -- 6 A And I went through it. 7 Q Okay. Well, let's -- if the Court will let me, if 8 we could go over that just to make sure we have everybody. 9 JUDGE FACCIOLA: Who exactly do you want to know, 10 Mr. Klayman? Maybe we can -- 11 MR. KLAYMAN: Anybody who might possibly have been 12 in any of these meetings. 13 JUDGE FACCIOLA: To the best of your recollection, 14 Mr. Secretary, as to these meetings, you have indicated to us 15 in your prior testimony there were certain meetings in which 16 the representatives of the General Counsel's officer were and 17 you identified them. 18 And you indicated there were other meetings in 19 which there were representatives of the General Counsel's 20 office present and people whose expertise and skill may have 21 lain in public relations or dealing with Congress or your own 22 chief of staff, right? Is that right? 23 THE WITNESS: Public Liaison. 24 JUDGE FACCIOLA: Public Liaison. 25 THE WITNESS: Yes, sir. Yes, sir. 183 1 JUDGE FACCIOLA: Now, I don't know because my 2 recollection is not as good as yours, but did you identify 3 for Counsel as many of those people as you could? 4 THE WITNESS: As I could. Yes, I did, sir. 5 JUDGE FACCIOLA: Then so be it. 6 In what way was his previous answer deficient, 7 Counsel? 8 MR. KLAYMAN: I don't know, Your Honor, because -- 9 I mean, this isn't -- in all due respect to Your Honor, I 10 wouldn't have asked the question as a leading question, 11 allowing him to shut the door to this, I would have asked it 12 as an open question, saying do you remember anybody in 13 addition to who you mentioned earlier and who did you mention 14 earlier. But given the leading nature of the question -- 15 JUDGE FACCIOLA: And what would we gain by 16 reviewing again the names of the persons he previously 17 mentioned? 18 MR. KLAYMAN: Because we would like to have the 19 opportunity to move the Court to take their deposition to see 20 whether they can remember more specifically what was 21 discussed during these meetings with regard to documents that 22 should have been produced to the Court. 23 JUDGE FACCIOLA: Does anyone -- 24 Ms. Braswell, do you have a better recollection 25 than I do of whether or not the secretary specifically 184 1 identified by name earlier today the persons who were at 2 these various meetings? 3 MS. BRASWELL: My recollection is he identified 4 everyone he could and he made it clear that he couldn't 5 identify anyone else, but there might have been other 6 individuals at the meetings. To me, this question -- and 7 a belated objection is asked and answered. 8 JUDGE FACCIOLA: All right. 9 Counsel, is that your recollection as well? 10 MR. ROBBINS: That is my recollection, although I 11 should say, Judge, that the record says whatever it says and 12 whether he -- 13 JUDGE FACCIOLA: I appreciate that, but what we're 14 trying to do, Counsel, is not to have people come back for no 15 apparent reason. It's obviously clear that Mr. Klayman wants 16 to lay the foundation for a review of my determination by 17 Judge Lamberth that the presence of these other people 18 vitiated the application of the privilege. 19 To save everybody from coming back, because my 20 recollection, frankly, is not as good as I would like it to 21 be, it's not as good as the secretary's, I just want to make 22 sure that the record is clear, so that Judge Lamberth will 23 not have to hunt through it and come away and scratch his 24 head and wonder who was at which meeting, what I'm just 25 trying to do is give us the best possible record so that 185 1 Judge Lamberth doesn't have to do more work than he did, and 2 to that end, I wonder if we could agree right now among 3 ourselves to a summary with the secretary of who was at each 4 meeting for that purpose. 5 Do you understand that, Mr. Secretary? What we're 6 trying to do for Judge Lamberth? 7 THE WITNESS: Yes, I understand. 8 JUDGE FACCIOLA: Okay. At the risk of just doing 9 that again, let's see if we can do it as quickly as possible. 10 So the first question would be at those meetings 11 which you were -- do you remember certain meetings, 12 Mr. Secretary, in which you were present with only your 13 counsel? 14 THE WITNESS: Yes. 15 JUDGE FACCIOLA: And you've named for us the 16 lawyers who were present, right? 17 THE WITNESS: Yes. To the extent I can remember 18 them. 19 JUDGE FACCIOLA: And to the best of your 20 recollection, in that room, at that time, there was no one 21 who was not a lawyer or aiding that lawyer in providing you 22 with legal advice. 23 THE WITNESS: Not in those meetings. No, sir. 24 JUDGE FACCIOLA: All right. In the other meetings, 25 besides the presence of the lawyers, do you remember who was 186 1 present? These are meetings, general meetings, to discuss 2 the general topic -- 3 THE WITNESS: And I tried -- 4 JUDGE FACCIOLA: -- which were not held for the 5 sole purpose of giving you legal advice, even though the 6 participants in the meeting might very well have discussed 7 the legal requirements pertaining to FOIA. 8 As to those meetings which involved the presence of 9 non-lawyers, do you remember who else was there besides 10 yourself and the lawyers? By name. 11 THE WITNESS: One, they may have involved the 12 giving of legal advice. However, there were non-lawyers in 13 the room -- 14 JUDGE FACCIOLA: Yes. 15 THE WITNESS: But I don't want to play lawyer here, 16 and I won't, about the doctrine of who is covered by the 17 lawyer-client privilege, and I won't -- 18 JUDGE FACCIOLA: You don't have to worry about 19 that. 20 THE WITNESS: Two, in the room, would have been, 21 I believe, people in the General Counsel's office including 22 Sue Esserman and Barbara Erickson -- 23 MR. KLAYMAN: Fredericks. 24 THE WITNESS: Fredericks, I mean. I'm sorry. 25 Barbara Fredericks. Peter Scher. Someone from Public 187 1 Liaison. I'm sorry, I can't remember a name. And I'm trying 2 to help here because I don't want to come back here, frankly, 3 it's -- for all kinds of reasons, most of all time, your time 4 and my time -- 5 MR. KLAYMAN: Well, time -- 6 THE WITNESS: I betcha there were meetings where 7 the Inspector General -- I had involved because I had him 8 involved because I was deeply concerned that we do this right 9 and that it be done in a way that no one could say there was 10 a political cast on this advice or political cast on what we 11 did. 12 BY MR. KLAYMAN: 13 Q And who was the Inspector General? 14 A Frank -- I'm looking for help -- Frank -- 15 MS. BRASWELL: I can provide the name, Your Honor, 16 if you would like. 17 JUDGE FACCIOLA: Would you be so kind, 18 Ms. Braswell? 19 THE WITNESS: Please. 20 MS. BRASWELL: Frank DeGeorge. 21 THE WITNESS: Frank DeGeorge. 22 BY MR. KLAYMAN: 23 Q Okay. So you considered it to be of sufficient 24 importance to have the Inspector General come to these 25 meetings. Some of these meetings. 188 1 A Some of these. Yes. Sure. Of course. 2 Q Now, it is not the normal procedure when you're 3 producing documents under FOIA to have the Inspector General 4 come to the meetings. Is it? 5 A Well, I don't know if it's normal or not. I 6 considered it important in this case. 7 Q Because this case had taken on a certain 8 prominence -- 9 A And I wanted to make sure it was done correctly and 10 that -- the Inspector General was independent, seen as 11 independent, had wide experience in the department and I 12 thought that would be helpful. 13 Q Now, what duties and responsibilities were assigned 14 to the Inspector General, Mr. DeGeorge? 15 A Oh, they were generally -- just to work with the 16 General Counsel's office to make sure that this proceeded 17 properly. I can't remember any specific instructions, other 18 than what I've testified to before. 19 Q Have you ever heard of someone by the name of 20 Melinda Yee? 21 A Oh, I've heard of her. Yes. Sure. 22 Q Have you ever met her? 23 A I'm sure I have. She was not at the department 24 while I was there. 25 Q You are aware that while you were at the department 189 1 Judicial Watch in a deposition obtained testimony from her 2 that she had destroyed notes that she took on the trade 3 missions to China and India which are the subject of this 4 case? 5 A I may have known at the time. I don't know it 6 right now. I don't recollect that, but I'm not going to 7 challenge your characterization that it happened during the 8 time I was there, I just don't recall at this point. 9 Q Given your background as a lawyer and as Secretary 10 of Commerce, if you had learned that, would you have asked 11 the Inspector General to investigate that? 12 MR. ROBBINS: Objection to the form. 13 MS. BRASWELL: Objection. 14 MR. ROBBINS: Calls for speculation. 15 JUDGE FACCIOLA: It certainly does. Sustained. 16 MR. KLAYMAN: Well, it deals with a course of 17 conduct, Your Honor. What are the procedures at the 18 department when he was there, can I ask it that way? 19 JUDGE FACCIOLA: Sure. 20 As you understood the procedures available to you 21 as Secretary of Commerce, if there were indications that an 22 employee had destroyed records that were the subject of a 23 FOIA action or a FOIA request, what, if anything, do you 24 think you could have done about it? As you understood your 25 responsibilities, powers and authorities as Secretary of 190 1 Commerce. 2 THE WITNESS: As I understood my responsibilities, 3 they were to deal with those concerns that were in front of 4 me at the time. Things that happened years before, I didn't 5 believe I had power or responsibility to deal with. 6 BY MR. KLAYMAN: 7 Q When you were Secretary of Commerce, did you give 8 anybody any instructions that if there's any allegation of 9 illegal conduct in responding to a FOIA request or court 10 order it must be brought to my attention, Secretary Mickey 11 Kantor? 12 A Not specifically, but I made it clear that I wanted 13 these requests adhered to and adhered to properly and I 14 wanted everyone to cooperate and I think it was clear from 15 the implication of my statements that anyone who didn't 16 cooperate should have been brought to my attention. 17 Q And who did you tell that to? 18 A Oh, Sue Esserman, to Barbara Fredericks, to Frank 19 DeGeorge, to Peter Scher. I would have told all four that. 20 Q Was any such matter involving Ms. Yee, that she had 21 destroyed the notes on the trade missions to China and India, 22 a subject of Judicial Watch's case, ever brought to your 23 attention? 24 A I don't think it was ever a subject of discussion 25 with me or anyone in the department while I was secretary. 191 1 Q Discussion, in writing or orally? 2 A I don't believe so. No, sir. 3 Q Did you ever order an investigation of any kind at 4 the Commerce Department about allegations of misconduct in 5 this lawsuit? 6 A No. 7 Q Do you know of anyone who ever did? 8 A Do I have -- In other words, when I was secretary, 9 did I have anyone else do that? Is that what you're asking? 10 Q Yes. 11 A The answer is no. In this lawsuit, no. Absolutely 12 not. 13 Q So as far as you know, no one at the Department 14 of Commerce, including the Inspector General, has ever 15 investigated whether or not Melinda Yee obstructed justice 16 by destroying records that were to be produced in this 17 lawsuit. 18 A I wouldn't have any information with regard to 19 that. 20 Q Did you ever or did anyone else, to the best of 21 your knowledge, instruct Mr. DeGeorge to look into whether or 22 not John Huang had produced all the records that he had 23 responsive to this lawsuit? 24 A What I asked Mr. DeGeorge to do is to make sure we 25 produced all records, it was done properly, and no records 192 1 were secreted in any way or taken out of the department or 2 not produced that should have been produced. 3 Q Are you aware of press reports where statements 4 were made that John Huang did not produce all of his 5 documents to congressional committees? 6 A Press reports? 7 Q Yes. 8 A Oh, I think so. Yes. I think so. Sure. 9 Q And after you learned of those press reports, 10 did you ask Mr. DeGeorge to specifically investigate whether 11 Mr. Huang produced all his records? 12 A I'm not sure I heard those press reports while I 13 was still Secretary of Commerce, so I'm not certain of that. 14 You asked me generally, you didn't ask while I was secretary. 15 I can't remember whether I was still secretary. 16 I can only tell you what I've told you now at least 17 four times in this deposition, maybe more, and I'll continue 18 to tell you if it's helpful, I tried to ensure that every 19 document that was even barely relevant was produced. 20 Q And the full extent of your trying to ensure that 21 that occurred was to tell people make sure you produce all 22 the documents. That's all you ever did. 23 A Well, I talked to -- I talked to Sue Esserman and 24 to Frank DeGeorge and to Barbara Fredericks and to Peter 25 Scher to make sure they understood how serious I was that I 193 1 didn't want anyone at the department to withhold documents or 2 not to produce them or not to do a serious search. I did not 3 personally do a search myself. 4 MR. KLAYMAN: Your Honor, if I may, we thought we 5 had extra copies of this, but this isn't -- 6 JUDGE FACCIOLA: That's all right. 7 MR. KLAYMAN: I'll ask that this be marked -- 8 JUDGE FACCIOLA: Would you like us to make some 9 copies? 10 MR. KLAYMAN: We'll see if Mr. Kantor wants them 11 and I'll just see if it refreshes his recollection. 12 This is an article which I'll ask be marked as 13 Exhibit 13. I've written on it. It's dated November 20, 14 1996 from the Washington Times written by Jerry Seper, 15 headline, "Huang's thin files arouse suspicion, lawmakers 16 probe Commerce Department." And at paragraph 4, it states, 17 "'There is a concern about a possible obstruction of justice, 18 whether some files were hidden or destroyed,' said one source 19 close to the House probe, 'We need to look at the chain of 20 custody for Mr. Huang's records and find out who had them and 21 what they did about them.'" This is Exhibit 13. 22 (Kantor Deposition Exhibit No. 13 23 was marked for identification.) 24 BY MR. KLAYMAN: 25 Q I'm showing you Exhibit 13, Mr. Kantor. Did 194 1 you ever see that article in and around November of 1996? 2 A I'm not sure if I saw this specific article. 3 Q You can read it. You didn't read the first page. 4 A Well, I don't need to. I heard you read it. 5 Q Well, maybe the context of the article will refresh 6 your recollection as to whether you've seen it. 7 A With all due respect, Counsel, I don't remember 8 this particular article. If you want to ask me a question, 9 I'm happy to answer it. 10 Q You do remember the issue, however, that there was 11 an allegation by Congress -- 12 A Absolutely. 13 Q -- that Huang had obstructed justice -- 14 A Absolutely. 15 Q -- and had not produced all of his Commerce 16 documents. 17 A Absolutely. 18 Q Who did you ask to investigate that, if anyone? 19 A Sue Esserman and Frank DeGeorge. That's the second 20 time I've told you that. 21 Q Specifically? Specifically? 22 A Yes. 23 Q And you issued that directive in writing? 24 A Specifically, not to investigated. You use the 25 word investigate in a very interesting fashion. I asked them 195 1 to ensure every document in our files that's been requested 2 to be produced was produced. 3 Q Did you -- do you want to finish? 4 A No, I finished. 5 Q Did you specifically say I want this matter looked 6 into, this allegation by Congress that Huang has obstructed 7 justice by not producing Commerce documents? 8 A There were a whole host of articles -- 9 Q Yes or no. Yes or no. 10 MS. BRASWELL: Objection. 11 MR. ROBBINS: He can answer it however he chooses. 12 MR. KLAYMAN: It calls for a yes or no answer. 13 MS. BRASWELL: Objection. 14 MR. ROBBINS: It calls for whatever he thinks it 15 calls for. 16 MR. KLAYMAN: Your Honor, may I have a yes or no? 17 JUDGE FACCIOLA: Let me see if I can help. 18 Mr. Secretary, with the understanding that you will 19 be able to give whatever explanation that you can, did you 20 ever instruct the Inspector General of the Department of 21 Commerce to investigate the allegation made that Mr. Huang 22 had obstructed justice in the manner in which he participated 23 or answered questions or produced documents in the Judicial 24 Watch lawsuit? 25 MR. KLAYMAN: May I ask the Court to ask for a yes 196 1 or no? 2 JUDGE FACCIOLA: See if you can answer that yes or 3 no. Generally. 4 THE WITNESS: I can't answer that yes or no. It's 5 impossible to answer that yes or no. 6 JUDGE FACCIOLA: Okay. Give us the best answer you 7 can. 8 THE WITNESS: And I'd like to answer yes or now 9 because we could get out of here quicker. The fact is, 10 Your Honor, I said when these issues came up, and this was 11 just one of the issues that came up with regard to the 12 Department of Commerce about allegations of events that had 13 taken place before I was secretary, I said to Barbara, to 14 Sue, to Peter, to Frank, I want to make sure that everything 15 we have here is turned over with regard to these allegations, 16 as well as with regard to the FOIA requests, with regard to 17 any other requests. 18 Now, if you call that an investigation, that's your 19 terminology. I don't know how to term that except that to me 20 was the way to get to the bottom of it or allow the Congress 21 and others to get to the bottom of the situation. 22 JUDGE FACCIOLA: Mr. Secretary, it would help me to 23 just think about the chronology of this. In other words, 24 when you're talking to how the department will respond, had 25 the allegations of Huang's supposed obstruction of justice 197 1 already surfaced or do they come later? 2 THE WITNESS: Your Honor, there were many 3 allegations about John Huang at the time. I can't remember 4 the sequence in which they came, however, some were misusing 5 his position at Commerce, some had to do with destruction of 6 documents or failure to turn documents over. 7 The fact is I was deeply concerned about all of 8 that and therefore I thought the people best able to handle 9 that were General Counsel and the Inspector General and 10 that's why I gave them the responsibility to look into the 11 matters that were being alleged in the sense of turning 12 everything over. 13 Let me just -- no, I think we need to go further. 14 I'd really like to clear this up for the Court. 15 JUDGE FACCIOLA: Go ahead. I'm not stopping you, 16 I'm just nodding my head because I think I'm beginning to 17 understand it. 18 THE WITNESS: Let me give you an example which I 19 remember vividly because I was so concerned. 20 I asked them to look at all the phone records that 21 John Huang may have had from his -- you know, the telephone 22 records at the department. Sue Esserman was very concerned, 23 she came back, there were a lot of long distance calls, this 24 is now a matter of public record, to California and to 25 Arkansas. Some to the same number, a lot to the same phone 198 1 number. 2 And I said to Sue, I said, Sue, whose phone is 3 this? Have you looked into this? Have we looked at this? 4 And they said, no, they haven't. I said go back and I want 5 you back in 24 hours, I want to know whose phone numbers they 6 are, call the numbers and find out who this is. 7 And it turned out, of course, as you know now, they 8 were Lippo Bank numbers in California. I forget who it was 9 in Arkansas, but it was someone involved in this entire 10 situation. I said turn that information over to the 11 Congress. 12 So, yes, there were times specific information came 13 to me and I was concerned. There were times where Sue 14 Esserman and Frank DeGeorge, who are terrific professionals, 15 just did it themselves. But I made it very clear that I 16 wanted these records found, turned over and, in fact, if you 17 want to use the word investigate in a situation I just 18 described, in a like situation, yes, but I didn't order a 19 general investigation in the sense I think you meant. 20 BY MR. KLAYMAN: 21 Q When you had this discussion with Sue Esserman, it 22 was by telephone? 23 A No, in person. 24 Q It was you and her? 25 A Yes. 199 1 MR. KLAYMAN: Your Honor, we've got a waiver of the 2 attorney-client privilege yet again. 3 JUDGE FACCIOLA: Why? Because it was on the phone? 4 MR. KLAYMAN: With counsel. With counsel. 5 Discussion with counsel. 6 JUDGE FACCIOLA: And? What am I missing? Esserman 7 is a lawyer. 8 MR. KLAYMAN: Right. 9 JUDGE FACCIOLA: She's talking to the Secretary of 10 Commerce. 11 MR. KLAYMAN: Right. 12 JUDGE FACCIOLA: He has told her to do a certain 13 thing -- 14 MS. BRASWELL: To do something. 15 MR. KLAYMAN: He's seeking advice as to whether 16 these telephone numbers -- 17 JUDGE FACCIOLA: No, he's not. He's telling her to 18 do something. 19 MS. BRASWELL: No. 20 THE WITNESS: No. 21 MS. BRASWELL: That's not what he said. 22 THE WITNESS: I'm not asking advice, I'm giving 23 direction. 24 MS. BRASWELL: Yes. 25 JUDGE FACCIOLA: If I call my clerk in, as I 200 1 frequently do, and say, Amy, I've got this problem in a case, 2 right? I'm not certain which way I'm going, and she gives me 3 the wisdom of her guidance, that's one thing. If she comes 4 in and I say, Amy, I just got a call from counsel, they want 5 a settlement discussion, when is our next available day, 6 that's not. 7 MR. KLAYMAN: Well -- 8 JUDGE FACCIOLA: The first one, I am invoking the 9 judge-clerk relationship. The second, I am giving my clerk 10 directions. 11 When Mr. Kantor asked Ms. Esserman how do I follow 12 the Freedom of Information Act, he is seeking legal advice. 13 When he tells Ms. Esserman to dial a phone number, that's a 14 ministerial tasking. He's not seeking her guidance. 15 MR. KLAYMAN: But the distinction, Your Honor, 16 is that if it's in the context of an actual act which is 17 required in this lawsuit, then it's not covered by the 18 privilege and it's not advice, it's an operative act in the 19 act of producing the documents. Just like it's an operative 20 act in the -- 21 JUDGE FACCIOLA: But he's not claiming any 22 privilege, he just told you what he did. 23 MR. KLAYMAN: I tried, okay? So I just thought I'd 24 raise that. 25 JUDGE FACCIOLA: Please. Thank you. 201 1 MR. KLAYMAN: I don't mean to beat a dead horse 2 here. We'll beat the dead horse some other time. 3 BY MR. KLAYMAN: 4 Q Now, there is a distinction, is there not, 5 Mr. Kantor, in terms of producing documents required under 6 FOIA or pursuant to congressional subpoena and investigating 7 an allegation of obstruction of justice, is there not? 8 MR. ROBBINS: Object to the form. Sounds like he's 9 asking for a legal opinion -- 10 MR. KLAYMAN: Based on your experience. 11 He is a lawyer. 12 MR. ROBBINS: Yes, but he's not here testifying as 13 a lawyer, as you well know. 14 JUDGE FACCIOLA: Maybe, Mr. Secretary, you could 15 help me. 16 THE WITNESS: Sure. 17 JUDGE FACCIOLA: When you were Secretary of 18 Commerce, suppose someone came to you and said we have reason 19 to believe that someone who works here has been, for example, 20 using their computer to start their own little Internet 21 business. 22 Was there a formal procedure you would invoke to 23 ask the Inspector General to do that so you would write him 24 and say pursuant to so and so, please investigate the 25 following allegation? 202 1 THE WITNESS: It could have been -- 2 JUDGE FACCIOLA: Was that procedure available? 3 THE WITNESS: It was available. Or I could go -- 4 we could go right to the Department of Justice to 5 investigate. And, as I recall, let me just -- I guess I'm 6 not supposed to as a witness -- but during this period of 7 time, as I recall, the Department of Justice was 8 investigating this situation with John Huang, if I'm not 9 mistaken. 10 And I think that Frank and Sue were cooperating 11 with them and so to some degree that investigation was taking 12 place and that -- I was just trying to search my mind why in 13 the world there's a different -- in my mind a difference 14 because I think that was going on and they were turning 15 documents over to them or at least consulting with them. 16 BY MR. KLAYMAN: 17 Q Do you know whether the Department of Justice has 18 ever talked to John Huang? 19 A I have no idea. Of course I wouldn't. 20 Q Now, as part of your duties and responsibilities as 21 Secretary of Commerce, you reported on a weekly basis to the 22 White House, correct? 23 A Well, the department did. The fact is, I might 24 have had seven calls a week in some weeks with Leon Panetta 25 or Erskin Bowles and then some weeks I may not have talked to 203 1 them at all but we may have sent a report over. 2 Every department sent on a weekly basis a report 3 over to the White House as to what was going on in the 4 department. I did it at USTR, did it at Commerce. Sometimes 5 I would see those reports and sometimes I wouldn't, depending 6 on how important they were, how unimportant they were. 7 Q And how was that report prepared? Who -- 8 A I'm trying to remember who -- 9 Q Where did the information -- 10 A It would have been prepared under the supervision 11 of the chief of staff's office. How it was gathered, I don't 12 know. I assume there was a meeting and he would go around 13 the table and ask each of the relevant undersecretaries as to 14 what's going on in their area that might be of interest to 15 the White House and then it was put together. 16 And, as I said, because of travel schedules, 17 because of other issues, sometimes I might have seen it and 18 sometimes I might not have and it would have depended on just 19 how important it was, the report. Of a particular week. If 20 that's what you're referring to, those reports. But I had 21 many other contacts, as any cabinet officer would have, with 22 the chief of staff, chief of staff's office and so on. 23 Q Did you ever have any contacts with the chief of 24 staff or chief of staff's office about Judicial Watch's 25 lawsuit? 204 1 A No. 2 Q And I mean oral or written. 3 A No. 4 Q And when I mean you, I mean your office. 5 A Well, the office may have while I was there, 6 although -- I don't have any personal recollection of it, 7 although I -- it's possible, they may have used it as part of 8 a larger report, I just -- if you want to show me a document 9 that might refresh my memory, but I don't remember that, 10 but -- 11 Q But you don't know of any -- 12 A It wouldn't be impossible that that was reported to 13 the White House. 14 Q You don't have knowledge of any document that had 15 your name on it which was sent to the White House -- 16 A Well, the problem with -- 17 Q Let me finish. You don't have any knowledge of any 18 document that had your name on it that was sent to the White 19 House discussing Judicial Watch's lawsuit? 20 A I don't recall one at the moment, but that doesn't 21 mean -- let me say again, and I'll give you the answer I was 22 going to give you, any secretary of any department, his name 23 is invoked with many, many documents that go to the White 24 House where they may or may not have seen the document, 25 frankly, although at USTR you're more likely to see the 205 1 document than at the Department of Commerce, just given the 2 size. 3 Q The weekly report prepared by your office sent to 4 Panetta and Podesta, then White House chief of staff, deputy 5 White House chief of staff, was a report which bore your 6 name, correct? 7 A Oh, I think it did. Yes. Sure. 8 Q And because you were in fact the sender of that 9 document, you reviewed those reports, didn't you? 10 A Most of them, but not all. 11 Q You wouldn't want your chief of staff sending stuff 12 over to the White House under your name that you didn't know 13 about, correct? 14 A I just testified there might have been documents 15 that went over in my name that I wouldn't have been -- the 16 importance of the documents -- there may have been documents 17 that went without my -- that I did not see. 18 Q Has it been your course of conduct over time as an 19 attorney to allow people in your office to send materials out 20 under your name, whether it's in your law firm, Manatt 21 Phelps, whether it's at USTR, whether it's at Commerce 22 Department, whether it's Mayer, Brown & Platt, without your 23 seeing it? 24 MS. BRASWELL: Objection. 25 MR. KLAYMAN: I'm trying to get his general course 206 1 of conduct, Your Honor. 2 JUDGE FACCIOLA: Mr. Secretary, in terms of when 3 you were the Secretary of Commerce or other times of your 4 life, have you ever encountered the situation where something 5 went out under or over your name even though you hadn't read 6 it? 7 THE WITNESS: Yes. 8 MR. KLAYMAN: That wasn't my question, Your Honor. 9 THE WITNESS: Yes. 10 JUDGE FACCIOLA: What was your question? 11 MR. KLAYMAN: Whether it was his practice. 12 JUDGE FACCIOLA: Did you do that commonly? 13 THE WITNESS: Not commonly. I've never been in a 14 33,000-person law firm. The Commerce Department was almost 15 34,000 people and there might have been documents that went 16 to the White House under my name, because they would 17 frequently invoke the secretary's name, that I didn't see. 18 JUDGE FACCIOLA: Maybe -- 19 THE WITNESS: Did I have a common practice? Well, 20 I'll answer the question. As a lawyer or at USTR, the answer 21 is no, but there's quite a difference in size and scope, and 22 so therefore I think there's a difference in practice. 23 BY MR. KLAYMAN: 24 Q Let's put it this way. If it's something that, for 25 instance, was a response to a congressional inquiry, from a 207 1 congressman, and your name was on it, you'd want to see that, 2 correct? 3 A Yes. 4 Q And you'd want to approve what was in that 5 document, correct? 6 A With my name on it? 7 Q Right. 8 A Absolutely. 9 Q You'd want to make sure that everything was 10 accurate, correct? 11 A Absolutely. 12 Q And you would do a due diligence to make sure it 13 was accurate. 14 A Absolutely. 15 Q And if it was a question of sending something to a 16 grand jury, a response to a grand jury subpoena, you sure as 17 heck would want to know what was in it. 18 A Yes. Yes. Absolutely. 19 Q And if it was a question of sending something to 20 your superiors at the White House, you'd want to know what's 21 in it, correct? 22 A It depends what the issue is. Depends on what the 23 document is. If it's a weekly report that goes out 52 times 24 a year, the answer is I may or may not have, depending on 25 what the issues were. 208 1 MR. KLAYMAN: I'll show you what I'll ask the court 2 reporter to mark as Exhibit 14. 3 Exhibit 14 is a series of documents produced by 4 the Department of Commerce pursuant to order of this Court 5 wherein weekly reports are provided by the Secretary of 6 Commerce to the White House through the chief of staff's 7 office. 8 The first document is a memorandum of September 5, 9 1996 to Leon Panetta at the White House from Secretary Mickey 10 Kantor, Subject: "Weekly Report. Hot issues." 11 (Kantor Deposition Exhibit No. 14 12 was marked for identification.) 13 BY MR. KLAYMAN: 14 Q Now, if you put something down that said "Hot 15 issues," that means it's an important issue, correct? 16 MR. ROBBINS: Objection to the form. Assumes that 17 the you is being done by this witness rather than -- 18 MR. KLAYMAN: Wait. Wait. Let's not have a 19 speaking objection, please, Your Honor. 20 MR. ROBBINS: I'll object how I want. 21 MR. KLAYMAN: That gives the witness an answer. 22 THE WITNESS: Where is the rest of the document? 23 JUDGE FACCIOLA: The objection is overruled. 24 MR. KLAYMAN: The top page -- 25 THE WITNESS: I see the top -- where is the rest of 209 1 the document? 2 MR. KLAYMAN: This is what was produced to us, 3 so -- 4 THE WITNESS: Well, I can't understand the document 5 unless you have the whole document. 6 MR. KLAYMAN: Perhaps you'll help us out as to what 7 was -- 8 THE WITNESS: I can't -- I'm in private practice. 9 I don't represent anyone in this. What have you done with 10 the rest of the document? 11 JUDGE FACCIOLA: Well, the problem is, 12 Mr. Secretary, I suspect someone in the FOIA office indicated 13 that that was the only portion of the document that was 14 relevant to this matter. 15 THE WITNESS: How do I know that? 16 JUDGE FACCIOLA: In the ordinary course of 17 responding to a FOIA request, you expurgate everything else. 18 Isn't that right, Mr. Klayman? 19 MR. KLAYMAN: That's correct. I mean, that's what 20 was represented to us. 21 JUDGE FACCIOLA: So he can't give it to you. 22 Now, whether the document exists in its pristine 23 form somewhere else, none of us know because someone else has 24 concluded that it is only this portion of the document in 25 front of you that was responsive to the FOIA request and we 210 1 don't know how that determination was made. 2 THE WITNESS: What's your question? Go ahead, 3 Counsel. I'm just confused by the way this document looks. 4 I'm sorry. 5 JUDGE FACCIOLA: I hope that explains it. 6 THE WITNESS: Yes. Yes. Thank you, Your Honor. 7 MR. KLAYMAN: If you have any information, 8 Mr. Kantor, as to why we didn't get the rest, I mean, you can 9 help us. 10 THE WITNESS: No, I don't know. 11 MR. KLAYMAN: That would be a great service. 12 THE WITNESS: I'm as confused as maybe you are 13 about this, but go ahead. 14 MR. KLAYMAN: And, in fact, maybe you'll remember 15 when we get through it what it is we didn't get. 16 BY MR. KLAYMAN: 17 Q When your reports say "Hot issues" -- 18 A Yes? 19 Q That means it's an important issue, correct? 20 A May or may not. 21 Q What does the word "Hot issue" mean? 22 A It maybe something that is -- 23 Q The two words, "Hot issue." 24 A -- being generated as an issue in the press but 25 really is not that important, it's just making people -- that 211 1 it's causing concern in the press or something. You know, it 2 may not. 3 Q So "Hot issue" -- 4 A It may not be important. 5 Q So "Hot issues" doesn't really mean hot issues? 6 Is that what you're saying? 7 MR. ROBBINS: Objection to form. 8 THE WITNESS: I don't know what "Hot issues" means. 9 MR. ROBBINS: Argumentative. 10 JUDGE FACCIOLA: He's answered it. 11 (Pause.) 12 JUDGE FACCIOLA: Was there a question? 13 THE WITNESS: Is there a question? I'm sorry. 14 MR. KLAYMAN: Yes. 15 BY MR. KLAYMAN: 16 Q "Hot issue" doesn't mean that it's really hot at 17 all, it maybe very unimportant? It doesn't mean what it 18 says. 19 A In the range of issues, it may or may not be. 20 Q Now, have you ever seen this document before? 21 A I don't think so. You know, what's interesting, my 22 initials and signature aren't on this document. 23 Q Do you know if anybody took your initials off? 24 A Well, it's pretty hard because I -- 25 Q We only got copies, we never saw the original. 212 1 A I'm in the habit of when I sign memorandum -- 2 you're asking for pattern or practice -- to put my initials 3 right over my name and so you could not -- you'd have to 4 excise Secretary Mickey Kantor to excise my initials and so 5 it's quite likely I never saw this document, quite likely 6 because I would on the natural put MK on top of it. 7 Q There was a procedure between you and your chief of 8 staff that when these reports were prepared that there would 9 be a section for hot issues, correct? 10 A Oh, I don't recall, but I'm sure there must have 11 been, but I don't recall the discussion or the procedure. 12 Q Right. And you did have an understanding with your 13 chief of staff that when a hot issue was involved that you 14 were to be shown the report that was being sent to the White 15 House. 16 A I may or may not have. It depends where I was 17 and what I was doing on whatever the date is, September 5, 18 1996. If I was out of town, if I was in the middle of some 19 situation where he couldn't get a hold of me, he was 20 authorized to send it over. 21 Q Now -- 22 A And therefore -- let me just say again, the fact 23 that my initials aren't on this leads me to believe that my 24 recollection is correct, I never saw this. 25 Q However, you did have a practice set forth with 213 1 your chief of staff, Mr. Scher, that if he sent over a report 2 without your having seen it that when you had the opportunity 3 you were to be shown the report, correct? 4 A Or he might have told me what was in it, yes. In a 5 phone call. 6 Q You didn't want to leave it hanging out there, that 7 somebody was sending stuff in your name and you never saw it, 8 even after the fact, correct? 9 A Mr. Scher had been my chief of staff both at USTR 10 and the Department of Commerce and, of course, because of 11 that, I trusted him to do this. He had been doing this now 12 for years, literally, because of being in both positions, 13 chief of staff at both places. Therefore, it was my practice 14 in these -- these were routine reports, if it went over and I 15 wasn't available, he would send it over. 16 There would be no -- I wouldn't even be concerned 17 about it. And if it was something really -- that was of 18 grave concern, he would tell me about it. 19 MR. KLAYMAN: Let's change the tape right now. 20 (A brief recess was taken.) 21 BY MR. KLAYMAN: 22 Q Where were these reports stored, Mr. Kantor? 23 A I have no idea. 24 Q Now, if a report was sent without your permission, 25 assuming that happened, without your direct authorization, 214 1 where would you then go to look at the report when you had 2 the opportunity? 3 MS. BRASWELL: Objection. 4 JUDGE FACCIOLA: Sustained. 5 BY MR. KLAYMAN: 6 Q Who would you ask to see the report? 7 A If I wished to see the report? 8 Q Yes. 9 A Peter Scher. But they had my authorization and 10 permission to send the reports if they felt it was not 11 necessary for me to see them. 12 Q Well, this weekly report says, "Trade Mission 13 Complaint: Secretary Kantor and his predecessor, Ron Brown, 14 were accused in a complaint to the Federal Election 15 Commission of using seats on Department of Commerce trade 16 missions to raise funds for the Democratic Party. Judicial 17 Watch, a public interest law group, told the FEC the 18 documents obtained from the Department under the Freedom of 19 Information Act provide 'reason to believe' that government 20 services were traded for donations (8/26). Following this 21 complaint, a federal judge has found the Department's search 22 for documents responsive to the Judicial Watch FOIA request 23 to have been inadequate, and has ordered the Department to 24 check its record for any additional material that may have 25 been missed initially." 215 1 Do you remember reading that at the time? 2 A I don't remember it today. No. Of course not. 3 I've said that. 4 Q Okay. Now -- now, here is a matter where you, 5 Mickey Kantor, are being accused of committing a crime, 6 correct? By Judicial Watch. 7 A This is a complaint to the Federal Election 8 Commission, if I'm not mistaken. 9 Q Right. But the act itself, it is your 10 understanding based upon your considerable years in public 11 service, that selling seats on trade missions which you and 12 I pay for as taxpayers, selling them for political campaign 13 contributions, you do understand that that would be a crime 14 if proven. 15 MR. ROBBINS: Object to this question, Judge. 16 JUDGE FACCIOLA: Why is the witness' knowledge of 17 the criminal law of the United States -- 18 MR. KLAYMAN: Because of the fact that this was 19 obviously something which was indeed a hot issue, Your Honor, 20 and which in the ordinary course would have been brought to 21 his attention, which he would have known about and taken 22 action. A direct accusation against the individual. 23 MR. ROBBINS: Judge, you -- 24 JUDGE FACCIOLA: I'm going to sustain the 25 objection. Also, the problem I have with it is implicit in 216 1 the question is an interpretation of law which I don't know 2 is true or not. 3 I mean, we would all agree that for the FCC to put 4 up a sign and say "Radio licenses for sale, inquire within" 5 would be to sell a governmental benefit, but to make a 6 contribution to a political party and the consideration of 7 that political support to be invited on a trade mission, I'm 8 not so certain, nor do I know of any specific rule that that 9 constitutes a violation of 18 U.S.C. 600 and I don't 10 understand why you're asking Mr. Kantor to interpret the 11 criminal laws of the United States as to a set of given 12 facts -- 13 MR. KLAYMAN: Well --- 14 JUDGE FACCIOLA: -- that it has anything to do with 15 the records of the Department of Commerce. 16 MR. KLAYMAN: I asked him that question. 17 JUDGE FACCIOLA: I also don't think it is fair to 18 ask a person in this situation whether or not he is -- to 19 phrase the question, to ask another human being, "Are you 20 aware of the fact that you were committing a crime?" It is a 21 loaded question. 22 MR. KLAYMAN: Well, I didn't ask him that. 23 JUDGE FACCIOLA: It's like asking me if I stopped 24 beating my wife. 25 MR. KLAYMAN: I didn't ask that. 217 1 JUDGE FACCIOLA: It is unfair and I will not permit 2 it. Let's move on. 3 MR. KLAYMAN: Well, I didn't -- Your Honor, in all 4 due respect, I didn't ask that question. I asked whether it 5 was his understanding based upon his considerable years of -- 6 JUDGE FACCIOLA: No, you asked him quite 7 specifically, Mr. Klayman, if he knew that selling trade 8 secrets was a crime. You then directed his attention to a 9 document which says that. The clear implication of your 10 question is that the man committed a crime. That is an 11 unfair question and I am not going to permit it. 12 MR. KLAYMAN: Well, I understand, Your Honor. Let 13 me see if I can ask it another way because what I was trying 14 to say was -- if I was inarticulate, let me try to rephrase 15 it -- that the accusation here that he was selling the trade 16 trips was serious. Was serious. Can I ask it that way? 17 JUDGE FACCIOLA: Yes. 18 BY MR. KLAYMAN: 19 Q You are aware this accusation is serious, correct? 20 MR. ROBBINS: Can I state an objection for the 21 record, Your Honor? 22 JUDGE FACCIOLA: Certainly. 23 MR. ROBBINS: I -- you know, as Mickey's partner 24 and lawyer, personally, I object to taking a document which 25 repeats an allegation by this man's outfit, elevates it to 218 1 the status of something that we should be considering as even 2 remotely factual, and then asking him how he reacts to an 3 allegation and how he would characterize an allegation that 4 amounts to nothing more than his outfit saying so, which I 5 don't know whether anybody takes it as something that's 6 serious or not serious. 7 But why he should have to opine on how to react to 8 this outfit's allegations strikes me as not calculated to 9 lead to the discovery of destroyed documents, which I take to 10 be the purview of this man's deposition. 11 MR. KLAYMAN: Well, in this -- first of all, in all 12 due -- 13 JUDGE FACCIOLA: Sustained. 14 MR. KLAYMAN: I didn't have a question pending. 15 JUDGE FACCIOLA: Counsel's objection that it is 16 unfair to do this to a person is to me a very fair point. 17 Please move on. 18 MR. KLAYMAN: The point I'm trying to make, 19 Your Honor, and I phrased it as serious and I had rephrased 20 the question at your suggestion and the point I'm trying to 21 make is that given the nature of the allegations, given the 22 fact that there is a statement in this report that says from 23 the Department Commerce that a federal judge, in this case, 24 Judge Royce Lamberth, has found that the department's search 25 for documents responsive to the Judicial Watch FOIA request 219 1 to have been inadequate and has ordered the department to 2 check its records for any additional material that may have 3 missed initially, that obviously this is a matter which in 4 the ordinary course should have been brought to his attention 5 and which he should have remembered. It bears on 6 credibility. 7 JUDGE FACCIOLA: I don't know what the question 8 was, Mr. Secretary, but perhaps we could put it this way. 9 There comes a point in the history of these events where 10 Judge Lamberth makes the findings that are summarized in 11 here. First of all, were you aware that the judge had made 12 those findings, i.e. a finding -- 13 THE WITNESS: Yes, it was part of the whole 14 discussion that began -- now this is September -- my 15 recollection is, correct me, September of 1996, so therefore, 16 yes, it's part of the whole discussion about finding 17 documents and turning them over. Yes. 18 JUDGE FACCIOLA: And did that trouble you 19 personally? 20 THE WITNESS: Of course it troubled me. 21 JUDGE FACCIOLA: So be it. 22 BY MR. KLAYMAN: 23 Q And is it therefore something which -- within the 24 realm of something that your chief of staff, Mr. Scher, 25 should have brought to your attention, that he was reporting 220 1 this to the White House, an accusation about you and your 2 conduct? 3 MS. BRASWELL: Objection. We seem to have moved 4 back to the accusation against Mr. Kantor instead of the 5 discussion about the judge's finding with respect to the 6 department. 7 MR. KLAYMAN: And -- 8 JUDGE FACCIOLA: Sustained. 9 MR. KLAYMAN: Your Honor, may I ask that the 10 remarks about Judicial Watch as an outfit be stricken from 11 the record? 12 JUDGE FACCIOLA: Sure. 13 By the way, I don't quite understand what 14 difference does it make if you folks strike things from the 15 record. This is a discovery proceeding. 16 MR. KLAYMAN: No, but I found -- 17 JUDGE FACCIOLA: And Judge Lamberth, to be blunt, 18 if the review is going to be sort of my rulings as we're 19 going along, it's my obligation to give Judge Lamberth a 20 complete record. If I go around striking things, how does it 21 do that? 22 MR. KLAYMAN: Well, I wanted it on the record that 23 I -- 24 JUDGE FACCIOLA: All right. You wanted -- 25 MR. KLAYMAN: -- that I have asked some tough 221 1 questions, admittedly, but I have not been disrespectful to 2 this witness. That is a statement of disrespect and I ask 3 the Court to note that. 4 JUDGE FACCIOLA: Counsel, in the future, please 5 don't refer to Judicial Watch as an outfit. 6 BY MR. KLAYMAN: 7 Q So just to close this line of questioning, did you 8 order any inquiry, any investigation by the Inspector General 9 or anyone else, into this specific finding as stated in this 10 report, September 5, 1996, which bears your name to Leon 11 Panetta as to whether or not your department had done an 12 inadequate search for records in response to Judge Lamberth's 13 orders? 14 A My reaction was to ensure the department complied 15 with all requests, including this request, to check its 16 records for any additional material that may have been missed 17 initially. 18 Q In response to this specific matter? 19 A I don't remember that. Remember, I said -- I'm 20 sorry, Counsel. I'm trying to be as specific as possible. I 21 don't remember if it was this specific request. This is part 22 of a whole range of issues, Congress, the press and Judicial 23 Watch were asking for documents, and whether it was this 24 specific request or not, I wouldn't remember at this point. 25 But in the fall of '96, I think I've made it quite clear what 222 1 I ordered to be done in order to respond to any and all 2 requests made to the department. 3 Q You are aware that the Department of Commerce 4 during the period that you were Secretary of Commerce was 5 being represented in this lawsuit by the Clinton Justice 6 Department, correct? 7 MS. BRASWELL: Objection. Objection to the 8 characterization of the Clinton Justice Department. 9 MR. KLAYMAN: All right. The Justice Department. 10 MS. BRASWELL: It is the Justice Department of the 11 United States. 12 MR. KLAYMAN: The Justice Department. Correct? 13 They called them the Reagan Justice Department, they called 14 them the Bush Justice Department. 15 MS. BRASWELL: I would appreciate it if you called 16 it -- 17 MR. KLAYMAN: I didn't realize that that was -- 18 MS. BRASWELL: -- of the United States. 19 MR. KLAYMAN: -- something that bothered you. 20 I'll retract it. Justice Department. 21 THE WITNESS: The Justice Department? Yes. 22 BY MR. KLAYMAN: 23 Q And you are aware that there were a number of 24 court hearings where the judge made statements, Judge 25 Lamberth, remarking at whether or not an adequate search had 223 1 been conducted. 2 A Generally aware, yes. I didn't follow it on a 3 detailed and specific basis, but generally aware, yes. 4 Q And you were aware, were you not, that a Justice 5 Department lawyer was sanctioned for misconduct in this case, 6 correct? 7 A No, I'm not aware of that. No, I'm not. 8 JUDGE FACCIOLA: Is that in fact true? 9 MS. BRASWELL: What -- 10 MR. KLAYMAN: Yes, that's true. 11 JUDGE FACCIOLA: Who was sanctioned? 12 MR. KLAYMAN: Bruce Hegyi. 13 JUDGE FACCIOLA: When was he sanctioned? 14 MR. KLAYMAN: I'll get you the date, if you'd like, 15 Your Honor. 16 MS. BRASWELL: I'm unaware -- I know there were 17 motions for sanctions -- 18 JUDGE FACCIOLA: You mean under Rule 11, a 19 Department of Justice lawyer was sanctioned in this case? 20 MR. KLAYMAN: There was an order -- 21 JUDGE FACCIOLA: And subjected to -- 22 MR. KLAYMAN: There was an order to pay attorneys' 23 fees and costs. 24 MS. BRASWELL: Against Mr. Hegyi personally? 25 JUDGE FACCIOLA: So a sanction was imposed under 224 1 Rule 33? 2 MR. KLAYMAN: Well, I don't know who ultimately -- 3 JUDGE FACCIOLA: Was there sanction imposed upon a 4 Department of Justice lawyer under Rule 11? 5 MR. KLAYMAN: I don't know under what basis the 6 payment will be made, who will ultimately make it. It hasn't 7 been made yet. 8 JUDGE FACCIOLA: Well, wait a minute. There's an 9 enormous difference. In the daily business -- when I rule on 10 discovery disputes, right? I may find that Ms. Braswell's 11 notion to compel will be denied and then I turn to the 12 question of whether or not she should have to pay the 13 expenses involved in that motion because it was not 14 substantial and justified under Rule 33. 15 It is entirely different when her opponent says 16 that under Rule 11 her motion lacks such merit that she 17 should be sanctioned, in which case I personally sanction 18 her, she pays it and, worse, I send her to bar counsel. 19 MR. KLAYMAN: I'm not going to -- I'm not going to 20 speak for Judge Lamberth, but the issue that is involved here 21 was Bruce Hegyi's walking out of a deposition without a 22 protective order by the Court. 23 JUDGE FACCIOLA: And -- 24 MR. KLAYMAN: And the Court ordered that that 25 conduct was sanctionable and ordered defendants to pay 225 1 Judicial Watch's legal fees related to that whole incident. 2 JUDGE FACCIOLA: Okay. 3 MS. BRASWELL: I think that's a far different 4 cry -- 5 JUDGE FACCIOLA: Let's be very, very clear about 6 this, as to how you say those things. 7 MR. KLAYMAN: So the conduct was Mr. Hegyi's. I 8 have assumed that he was sanctioned. If he was not, I will 9 defer to the Court. 10 JUDGE FACCIOLA: All right. 11 BY MR. KLAYMAN: 12 Q Were you aware of that? 13 A No. 14 Q No one ever brought that to your attention? 15 A No. 16 Q Now, you think that there was another document here 17 that was attached to this. You say this is incomplete. 18 A No, I said where is the rest of the document. 19 That's all I asked. Just an offhand question for you because 20 I had -- it looked a little strange, a one-paragraph weekly 21 report. 22 Q So there must have been -- 23 A And the Court explained it to me. 24 Q How large, generally, was each weekly report? 25 A Oh, I don't know. It depended on what was going 226 1 on. It could have been two pages, three pages. It could 2 have been larger. It could have been smaller. I don't know. 3 You'd have to ask me which week and refresh my memory and so 4 on. 5 MR. KLAYMAN: Let me just see if I can ask one 6 question, Your Honor, if you want to sustain it, ask a 7 different question. 8 BY MR. KLAYMAN: 9 Q But given the fact that this report contained an 10 allegation against you, based on your practice of dealing 11 with your chief of staff, based upon that practice, shouldn't 12 he have brought it to your attention? 13 A No. Why would he? I already was aware of it. 14 Q Have you ever asked to see this FEC complaint that 15 was filed by Judicial Watch? 16 MS. BRASWELL: Objection. 17 JUDGE FACCIOLA: Sustained. 18 BY MR. KLAYMAN: 19 Q During the time you were at the department, did you 20 ask to see it? 21 MS. BRASWELL: Objection. 22 JUDGE FACCIOLA: Sustained. 23 BY MR. KLAYMAN: 24 Q Let's turn to the second page, July 11, 1996, Leon 25 Panetta, the White House, Secretary Mickey Cantor, Weekly 227 1 Report. Turning to the second page, "The Department 2 responded to a FOIA request from for documents related to 3 Secretary Kantor's trip this week to Bosnia and Croatia. 4 sued the Department last year in an attempt to see certain 5 documents related to several of former Secretary Brown's 6 commercial development missions." 7 Did you ever see this weekly report? 8 A I don't recall seeing it. No. And, again, my name 9 is on it, but there is no initials, no signature. 10 Q Have you ever seen any weekly reports prepared by 11 Ron Brown -- 12 A No. 13 Q -- to Leon Panetta concerning Judicial Watch's FOIA 14 case? 15 A No. Not until this moment. I have flipped through 16 these documents, so I've seen these, but I've never seen 17 these before. 18 Q Let me turn your attention -- for purposes of just 19 reference, to lay a foundation for some follow-up questions, 20 turn to May 18, 1995. 21 A I've got it. 22 Q It's from Secretary Ron Brown to Leon Panetta of 23 the White House, Weekly Report. Turning to the second page, 24 the first page is completely blanked out. 25 A Mm-hmm. 228 1 Q "FOIA Requests. Regarding the outstanding Judicial 2 Watch requests, the U.S. District Court of D.C. ruled this 3 week that Commerce should grand a fee waiver to Judicial 4 Watch for all 25,000 releasable documents by 3 p.m. today. 5 After hearing will take place June 8 to decide the status of 6 the remaining 2000 documents we are asserting as exemptions." 7 A Mm-hmm. 8 MS. BRASWELL: Your Honor, it says "another 9 hearing," not "after hearing." 10 MR. KLAYMAN: All right. Well, whatever it says. 11 BY MR. KLAYMAN: 12 Q Let me then turn your attention to a report May 13 25, 1995 -- 14 A I'm sorry, say it again? 15 Q May 25, 1995. 16 A Got it. 17 MR. KLAYMAN: The reason I'm asking Mr. Kantor to 18 look at this is it may refresh his recollection about certain 19 things. 20 BY MR. KLAYMAN: 21 Q The second page, "VI. FOIA Requests. Regarding 22 the outstanding Judicial Watch requests, another U.S. 23 District Court of D.C. hearing will take place June 8 to 24 decide the status of the remaining 2000 documents we are 25 asserting as exemptions, following up the Court's ruling two 229 1 weeks ago that Commerce should grant a fee waiver to Judicial 2 Watch for all 25,000 releasable documents. Other requests 3 are coming in based on shared information obtained from 4 Judicial Watch." 5 Turning to a report of June 1, 1995 -- June 8, 6 1995, going from Ron Brown to Leon Panetta of the White 7 House, "VI." It's the second page. "Regarding the 8 outstanding Judicial Watch requests, another U.S. District 9 Court of D.C. hearing is taking place today, June 8, to 10 decide the status of the remaining 2000 documents we are 11 asserting as exemptions, following up the Court's ruling 12 three weeks ago that Commerce should grand a fee waiver to 13 Judicial Watch for all 25,000 releasable documents. Other 14 requests are coming in based on released/shared information 15 obtained from Judicial Watch." 16 Mr. Kantor, when you took over as Secretary of 17 Commerce, was there a pattern or practice that you became 18 aware of reporting on a weekly basis about Judicial Watch's 19 FOIA requests to the White House? 20 A No. 21 Q Did you ever make an inquiry to see whether this 22 was a subject that should be included in the weekly reports 23 of the Secretary of Commerce to the White House? 24 A At the time I took over? No. 25 Q Thereafter? 230 1 A No. 2 Q Did you or anyone else that you know of ever ask to 3 review the weekly reports of your predecessor concerning 4 Judicial Watch's FOIA requests? 5 A You asked did -- I didn't, whether others did, I 6 don't know. 7 Q Do you know whether others did? 8 A I don't know. But let me go on to say, it's 9 interesting, going back to a question about four questions 10 ago, May 18, January 19 and February 16, they're signed by 11 Ron Brown and they clearly show here, others are not, just to 12 add substance and substantiation to my view that the report 13 you're asking about, I probably didn't see because I didn't 14 sign it or put my initials on it. 15 Q Well, just for the record, there are statements on 16 the record of this case where the Department of Commerce 17 admits to having whited out portions of documents which are 18 irretrievable. I will note -- 19 A Well, they didn't white out in the other reports 20 you'll see where Secretary Brown didn't sign them, his 21 signature is not there, so therefore I just wanted to make 22 that point, just to substantiate my testimony earlier. 23 Q Have you ever met anyone by the name of Nolanda 24 Hill? 25 A No. 231 1 Q Do you know of someone by the name of Nolanda Hill? 2 A I've read about her in the newspapers. 3 Q Do you know who she is? 4 A I've read about her in the newspapers, only to that 5 extent. 6 MR. KLAYMAN: I'll show you what I'll ask the court 7 reporter to mark as Exhibit 15. 8 (Kantor Deposition Exhibit No. 15 9 was marked for identification.) 10 BY MR. KLAYMAN: 11 Q Before I get to Exhibit 15, based on your 12 experience as Secretary of Commerce and in supervising and 13 participating and having your name on weekly reports to the 14 White House, if a subject comes up frequently over many 15 different weeks, over a period of years, based on your 16 experience, wouldn't that be an important issue, in your 17 opinion? 18 A Depends on the subject. 19 Q Well, Judicial Watch's case. 20 A Flounder quotas at the Department of Commerce came 21 up every week, sometimes every day. They were important to 22 people in North Carolina and up the East Coast, but were not 23 in the great scheme of things critical to certain other 24 aspects of the workings of the Department of Commerce or the 25 United States Government. Therefore, there would have been 232 1 times when it would have been important and times it wouldn't 2 have been important. 3 Q Are you equating the Judicial Watch case to 4 flounder quotas? 5 A Well, in some cases, flounder quotas are more 6 important. A lot of fishermen depend on them. 7 Q Are the flounder quotas more important than the 8 orders of this Court, in your opinion? 9 MS. BRASWELL: Objection. 10 THE WITNESS: Oh, good lord. 11 JUDGE FACCIOLA: Sustained. 12 BY MR. KLAYMAN: 13 Q Mr. Kantor, you can't rule out having seen the 14 reports that I showed you with your name, can you? 15 A I said I have no recollection. 16 Q But you may have seen them, correct? 17 A I may have. 18 Q Showing you this affidavit of Nolanda Hill, Exhibit 19 15 -- 20 A Yes. 21 Q I turn your attention -- this is an affidavit which 22 was prepared under oath by Nolanda Butler Hill. 23 A Mm-hmm. 24 Q Who subsequently testified in this lawsuit. 25 A Mm-hmm. 233 1 Q At paragraph 9, wherein Ms. Hill testifies under 2 oath, "I further learned through discussions with Ron," Ron 3 Brown, "that the White House, through Leon Panetta and John 4 Podesta, had instructed him to delay the case by withholding 5 the production of documents prior to the 1996 elections, and 6 to devise a way not to comply with the court's orders." 7 Do you see that? 8 A Yes, I see that. Yes, sir. 9 Q Have you ever discussed Ms. Hill's affidavit with 10 anyone? 11 A No. 12 Q Have you ever discussed this sworn statement by 13 Nolanda Hill with either Leon Panetta or John Podesta? 14 A No. 15 MR. ROBBINS: Objection. It's the same question. 16 JUDGE FACCIOLA: He answered. We're moving on. 17 BY MR. KLAYMAN: 18 Q Do you have any knowledge as to Ms. Hill's sworn 19 assertions in this paragraph 9? 20 A Of course not. 21 Q Why "of course not"? 22 A It's -- the allegation is that Secretary Brown had 23 discussions with Leon Panetta and John Podesta. Obviously, 24 the allegation is in early 1996. No. How would I have any 25 knowledge of that? Of course not. 234 1 Q Well, did anyone ever bring this to your attention, 2 what Ms. Hill is saying under oath, that Panetta and Podesta 3 had instructed -- 4 A No. 5 Q -- Ron Brown to disobey this Court's orders? 6 A No. I've never seen the document, I've never heard 7 of the document, I know nothing about it. And, in fact, my 8 name's not mentioned in the document. 9 Q Has anyone from the Department of Justice ever -- 10 not the ones who are representing you, but the Chinagate task 11 force ever contacted you about Ms. Hill? 12 A No. 13 Q Or these allegations? 14 A No. 15 Q Has anyone ever contacted you from the Chinagate 16 task force of the Department of Justice about the allegations 17 that seats on trade missions were being sold? 18 A No. 19 Q Do you know of anyone who has been contacted by 20 them? 21 A Do I know of anyone who has? I don't think so. 22 Q Have you ever discussed Judicial Watch's lawsuit 23 with Attorney General Janet Reno? 24 A No. 25 Q Or anybody on her staff? 235 1 A No. 2 Q Eric Holder? 3 A No. 4 Q Paragraph 11, another sworn statement by Nolanda 5 Hill, "In early 1996, Ron showed me a packet of documents, 6 about 1 inch thick, which he removed from his ostrich skin 7 portfolio. Ron told me that these documents had been 8 provided to him from Commerce Department files as part of the 9 collection efforts to produce documents to Judicial Watch in 10 this case. I only reviewed the top five or six documents, 11 which were on Commerce Department letterhead under the 12 signature of Melissa Moss of the Office of Business Liaison. 13 What I reviewed comprised letters of Ms. Moss to trade 14 mission participants, each of which specifically referenced a 15 substantial financial contribution to the Democratic National 16 Committee (DNC). My response was immediate and decisive. I 17 told Ron he must instruct the production of these documents 18 and all responsive documents be immediate and I advised him 19 to mitigate his own damages by releasing Ms. Moss from her 20 duties and admonishing her for using the offices of the 21 Commerce Department for partisan political fundraising." 22 Do you have any information from whatever source 23 about the sworn statement of Nolanda Hill in paragraph 11 of 24 Exhibit 15? 25 A No. 236 1 Q Have you ever discussed with Melissa Moss whether 2 or not political campaign contributors were chosen for 3 Department of Commerce trade missions? 4 A No. 5 Q Were you Secretary of Commerce when Ms. Moss left 6 the employment of the department? 7 A No. 8 Q Do you have any knowledge as to why she left the 9 employment of the department? 10 A No. 11 Q While you were Secretary of Commerce, did you ever 12 see Democratic National Committee donor lists at the 13 department? 14 A No. 15 Q Were you aware that the department had in its 16 possession a Democratic National Committee donor list? 17 A No. 18 MR. KLAYMAN: I'll show you what I'll ask the court 19 reporter to mark as Exhibit 16. 20 (Kantor Deposition Exhibit No. 16 21 was marked for identification.) 22 BY MR. KLAYMAN: 23 Q Have you ever seen Exhibit 16 before? 24 A If you'll let me go all the way through it real 25 quick -- do you mind, Counsel? So I can just make sure. 237 1 (The witness reviewed the exhibit.) 2 A No. 3 Q During the period of time that you have worked on 4 behalf of President Clinton and Vice President Gore in your 5 capacity as an advisor, have you had contact with the 6 Democratic National Committee? 7 A You mean when I was chairman of the national 8 campaign in 1992? 9 Q Yes. 10 A Yes, I did. 11 Q Okay. And were you -- did the Democratic National 12 Committee keep donor lists called Minority Donor Lists? 13 A In 1992? 14 Q Or thereafter. 15 A Well, I only know in 1992, in 1991 and '92, and the 16 answer is yes, I believe so, although I don't recall it 17 characterized in that way, but I wouldn't be -- I was very 18 much concerned with, involved with, Democratic National 19 Committee activities in 1992. Sure. 20 Q Have you ever discussed donors going on trade trips 21 with Don Fowler or Christopher Dodd? 22 A No. In fact, I think I testified a few hours ago 23 that in the two or three occasions at USTR and the one 24 occasion at Commerce where we were contacted either by letter 25 or otherwise by the DNC with requests for a meeting at USTR 238 1 or to put someone on a trade mission, which we discussed 2 earlier, at Commerce Department, those requests were rejected 3 and, in fact, at Commerce, Peter Scher under my direction 4 told the DNC not only would the person not go, but they would 5 never go on any trade mission. 6 Q I just asked for a yes or no. 7 A I wanted to give the full texture of what is going 8 on here, Counsel. I think it's helpful. 9 Q During your time as national chairman of the 10 Democratic National Committee -- 11 A I was never national chairman of the Democratic 12 National Committee. 13 Q I'm sorry, did I get your title wrong? 14 A I was national chairman of the Clinton-Gore 15 campaign in 1991 and '92. 16 Q Okay. Did you ever have a formal title of any sort 17 after that, during this administration? 18 A No. You mean at the Democratic National Committee? 19 Q Yes. Right. 20 A No. 21 Q Did there come a point in time when you got to know 22 a Terrence McAuliffe? 23 A I've known Terrence McAuliffe for probably 18 24 years, 15 to 18 years. 25 Q Have you ever had a discussion with Terry McAuliffe 239 1 about taking donors on Department of Commerce trade missions? 2 A Absolutely not. 3 Q Do you know of anyone who has? 4 A No. 5 Q Do you know whether or not Mr. McAuliffe was 6 involved in having donors go on trade missions? 7 A No, I do not know. 8 JUDGE FACCIOLA: I'll show you what I'll ask the 9 court reporter to mark as Exhibit 17. 10 This is a letter from Terry McAuliffe to Melissa 11 Moss dated July 25, 1994, a memorandum to Melissa Moss from 12 Terry McAuliffe dated July 25, 1994, and a memorandum of 13 January 13, 1994, Trade Mission to Russia, from Eric to a 14 number of individuals, Bob, Ari, Fran, copy Laura, Richard, 15 Stephen, Jay. 16 (Kantor Deposition Exhibit No. 17 17 was marked for identification.) 18 BY MR. KLAYMAN: 19 Q Have you ever seen any of these documents before? 20 A No, sir. 21 Q The first document wherein Mr. McAuliffe says that 22 he's recommending Mr. Belvin of Windmere Corporation to go on 23 a trade mission to Melissa Moss, does that refresh your 24 recollection as to whether Terry McAuliffe was involved in 25 any way in selling seats on trade missions for campaign 240 1 contributions? 2 A I have no personal information of Mr. Terry 3 McAuliffe making any request to anyone with regard to trade 4 missions. 5 Q And Mr. McAuliffe, his reputation in the Democratic 6 community is as one of the top fundraisers of the Democratic 7 community, correct? 8 MS. BRASWELL: Objection. 9 JUDGE FACCIOLA: Overruled. Mr. McAuliffe, during 10 the period of time of your affiliation with these campaigns, 11 did Mr. McAuliffe have a particular expertise in fundraising 12 as opposed to some other part of the political process? 13 THE WITNESS: Mr. McAuliffe is a lawyer and is 14 involved in many different areas of business but also he was 15 a very fine fundraiser for the Democratic National Committee. 16 And a Democratic candidate. 17 BY MR. KLAYMAN: 18 Q And in fact still is, correct? 19 A I'm going to assume so, Counsel. I don't want to 20 play a game. I'm going to assume so, I just don't know. 21 JUDGE FACCIOLA: That's fine. 22 THE WITNESS: I haven't talked to Terry in a long 23 time. 24 BY MR. KLAYMAN: 25 Q Turning to page 3, does that refresh your 241 1 recollection as to whether -- 2 A Page what? I'm sorry. I'm sorry, Counsel. 3 Q Page 3. It's the January 13, 1994 memorandum, 4 Trade Mission to Russia. Does this refresh your recollection 5 as to whether lists of Democratic donors have been provided 6 to the Commerce Department for inclusion on trade missions? 7 A I don't know how to say this, Counsel, to -- I 8 don't know of any lists from the Democratic National 9 Committee being provided to the Department of Commerce at any 10 time with regard to any activity of the Department of 11 Commerce. 12 Q Have you ever seen documents like this that 13 reference providing lists from the Democratic National 14 Committee to the Commerce Department for use on trade 15 missions? 16 A No. No, sir. 17 Q Do you know a Marvin Rosen? 18 A Yes, I do. 19 Q Marvin Rosen was the -- 20 A I assume you're mentioning the lawyer in Florida. 21 Q The lawyer at Greenberg Traurig. 22 A Yes. Right. 23 Q He was the Democratic National Committee finance 24 chair during the 1996 elections, correct? 25 A Yes. I think that was his title. Yes, sir. 242 1 Q Have you or anyone else to the best of your 2 knowledge ever discussed taking donors on Department of 3 Commerce trade missions with Mr. Rosen? 4 A No. 5 Q Do you have any knowledge about Mr. Rosen's 6 involvement, if any, in arranging for donors to be taken on 7 trade missions? 8 A No. 9 Q Are you aware that Marvin Rosen worked closely with 10 John Huang at the DNC? 11 MS. BRASWELL: Objection. 12 JUDGE FACCIOLA: Overruled. 13 THE WITNESS: I have no personal knowledge of that 14 whatsoever, except what I read in the newspapers and, of 15 course, that's a different story. No, I have no personal 16 knowledge of that. 17 BY MR. KLAYMAN: 18 Q During the 1996 election cycle, did you visit the 19 Democratic National Committee from time to time? 20 A During the '96 cycle, did I visit the DNC? 21 Q Yes. 22 A No. 23 Q Never went there once? 24 A I don't believe so. I don't think I was ever in 25 the building in 1996. 243 1 Q Were you ever at any receptions or fundraisers 2 where John Huang was present? 3 MS. BRASWELL: Objection. 4 JUDGE FACCIOLA: Overruled. 5 Do you remember being at receptions with Huang? 6 THE WITNESS: Not that I recall. I made speeches 7 or introduced the President in my personal capacity at a 8 couple of DNC fundraisers in 1996, if that's what you're 9 referring to. I don't know. I can't remember if John Huang 10 was in the room, but I do not recall meeting him or seeing 11 him at those events. 12 BY MR. KLAYMAN: 13 Q Do you know Bernard Schwartz of Loral Corporation? 14 A Yes, I do. 15 Q When did you first meet him? 16 MS. BRASWELL: Objection. 17 MR. KLAYMAN: Just laying a foundation. 18 MS. BRASWELL: For what? 19 JUDGE FACCIOLA: Overruled. One question, please. 20 THE WITNESS: I can't remember. It probably was 21 some time in 1996. Some time in 1996. It could have been 22 before that. Mr. Schwartz has been involved in Democratic 23 Party activities. I might have met him on occasion before 24 that, but my first substantive discussion with Mr. Schwartz 25 probably was in 1996. 244 1 BY MR. KLAYMAN: 2 Q But you knew him before '96? 3 A I may have met him before then, Counsel, I'm was 4 trying to be entirely accurate, but it would have been in 5 passing. 6 Q You are aware that Mr. Schwartz went on the 1994 7 trade mission to China? 8 A I wasn't aware of it at the time. I'm only aware 9 because I've seen this in this document. 10 Q You've seen Mr. Schwartz -- 11 A There's a document -- yes, his name is in one of 12 these documents, on the first page that you handed me, 13 detailing trade missions, one of the documents you handed me. 14 MR. ROBBINS: Exhibit 10 or 11. 15 THE WITNESS: Maybe it's 10. Here it is. It's 10. 16 If you look at the first page of Exhibit 10, Mr. Schwartz is 17 in paragraph -- well, it's number 2, number 1 -- 18 MR. KLAYMAN: Can I see that? 19 THE WITNESS: And so that's where I -- here it is. 20 MR. KLAYMAN: Okay. 21 THE WITNESS: That's where I saw it. 22 MR. KLAYMAN: That's our FOIA request. 23 THE WITNESS: Yes. 24 MR. KLAYMAN: Okay. I'm going to show you what 25 I'll ask the court reporter -- 245 1 THE WITNESS: And that's dated September 12, 1994, 2 when I was at the U.S. Trade Representative's office. I was 3 not at the Department of Commerce. 4 BY MR. KLAYMAN: 5 Q Is it your routine practice to read The Wall Street 6 Journal each day? 7 A Fairly routine, yes. 8 Q Is it your routine practice over the years to read 9 Business Week each week? 10 A No. I hope I'm not offending anyone at Business 11 Week, but, no. 12 Q I don't care. Was it your practice at the Commerce 13 Department to get press clips of matters that related to 14 Commerce Department matters? 15 A Oh, sure. Yes. 16 Q And also at the U.S. Trade Representative's office. 17 A Yes. 18 Q To get press clips? 19 A Relating to USTR matters. 20 Q Dealing with international trade matters and what 21 the administration was involved in, correct? 22 A Yes, to a great degree, yes, sir. 23 JUDGE FACCIOLA: I'll ask that the court reporter 24 mark as Exhibit 18 an article in The Wall Street Journal of 25 September 9, 1994,"How Ron Brown Picks Who Joins His Trips 246 1 Abroad Raises Doubts." 2 (Kantor Deposition Exhibit No. 18 3 was marked for identification.) 4 THE WITNESS: What's the date of this article? 5 MR. KLAYMAN: September 9, 1994. 6 THE WITNESS: Okay. Thank you. 7 BY MR. KLAYMAN: 8 Q Have you ever seen this before? 9 A I don't remember this article particularly. 10 Q Let me just read a paragraph, number one. "But the 11 dollars don't flow just one way: In June, Mr. Schwartz wrote 12 a $100,000 check to the Democratic National Committee which 13 Mr. Brown headed before joining the Clinton administration. 14 that came on top of $73,000 that Mr. Schwartz has given the 15 Democratic interests since 1961." 16 Does that refresh your recollection as to whether 17 Mr. Schwartz was taken on a trade mission in exchange for 18 campaign contributions? 19 MS. BRASWELL: Objection. 20 JUDGE FACCIOLA: Overruled. 21 Do you have any recollection? 22 THE WITNESS: Well, this is September 9, 1994. 23 I was involved in negotiating the framework agreement and its 24 implementation with the Japanese. I was traveling back and 25 forth to Tokyo. It was a major issue for the administration 247 1 and for the country. I don't remember this article. 2 Frankly, this is a newspaper article and if I read it, 3 certainly, I wouldn't recall it today. That's almost five -- 4 four and a half years ago. 5 BY MR. KLAYMAN: 6 Q Do you remember anyone else bringing this article 7 to your attention at the time? 8 A No. I was involved in other matters. 9 MR. KLAYMAN: I'll ask that the next exhibit be 10 marked Exhibit 20. 11 THE COURT REPORTER: 19. 12 MR. KLAYMAN: Nineteen. This is a Business Week 13 article dated September 12, 1994, entitled "Clinton cozies up 14 to business, corporate gifts to the DNC have reached 15 unprecedented levels." 16 (Kantor Deposition Exhibit No. 19 17 was marked for identification.) 18 BY MR. KLAYMAN: 19 Q Have you ever seen this article? 20 A I don't think so, with all due respect to Business 21 Week. 22 Q Have you discussed this article with anyone? 23 A No, sir. 24 Q All right. Turn to the second page. 25 A Yes, sir. 248 1 Q Maybe it will refresh your recollection. The 2 second paragraph, the second column, second paragraph. 3 A Yes, sir. 4 Q Actually, let's go back to the first column where 5 it says "Good intentions. White House aide Herman, Brown's 6 deputy at the DNC, now drums up corporate support for 7 Clinton. Melissa Moss, a former DNC finance director, help[s 8 pick CEOs for Commerce trade missions. Mark Middleton raised 9 campaign money before becoming an aide to former White House 10 chief of staff Thomas F. McLarty, III. Middleton is always 11 taking calls, helping executives find the right 12 administration person to solve a problem. McLarty, now a 13 presidential counsellor, devotes up to half his time to 14 troubleshooting for business. 15 "Clintonites, of course, deny any quid pro quos, 16 insisting that they're only helping business create jobs for 17 Americans. Likewise, contributors profess only good 18 intentions. Loral's Schwartz, who write the DNC a $100,000 19 check in June, says he's a lifelong Democrat. Schwartz adds 20 that he doesn't need to buy access: 'I can open up any door 21 I want as chairman of a $6 billion company.'" 22 Does that refresh your recollection as to whether 23 or not you have knowledge that Bernard Schwartz bought seats 24 on trade missions, particularly the one to China? 25 MS. BRASWELL: Objection. 249 1 JUDGE FACCIOLA: Sustained. 2 The point is, as I understand the Rules of 3 Evidence, you proceed along the following way: the witness 4 is asked if he recollects something; if the witness says he 5 has no present recollection, his recollection can be 6 refreshed by anything. But if the witness begins, as this 7 witness has, from the proposition that he never saw the 8 article, what recollection is being refreshed? 9 MR. KLAYMAN: Well, he may have seen it and just 10 didn't remember it when he saw it. 11 JUDGE FACCIOLA: But he hasn't explained that his 12 recollection is exhausted. 13 MR. KLAYMAN: I didn't ask him, Your Honor, to 14 review the whole thing because I was trying to save time. 15 That's why I wanted to read that portion -- 16 JUDGE FACCIOLA: No, but I'm trying to get into my 17 head how it is that a witness who says I never saw this 18 article needs to have his recollection refreshed. It is one 19 thing if the witness says I don't recollect whether or not I 20 saw the article. Then it is perfectly appropriate to see if 21 his recollection is refreshed. But if we begin with the 22 premise that he is quite certain that he did not know it, 23 what recollection are we refreshing? 24 MR. KLAYMAN: We're trying to refresh the 25 recollection as to whether he knows of Mr. Schwartz going on 250 1 these trade missions and then the follow-up question is 2 whether or not he has some documents reflecting that. 3 JUDGE FACCIOLA: Okay. I think you've exhausted 4 the subject. He has indicated he has no recollection and he 5 does not know about that. 6 BY MR. KLAYMAN: 7 Q Now, going back to Exhibit 16, this was a DNC donor 8 list which was found in the course of Judicial Watch's 9 lawsuit that was not produced in the original FOIA request. 10 It was learned about during the deposition of Graham Watley, 11 who subsequently was let go by the department and was 12 testified to by Christine Sopko, his secretary. 13 The testimony sets forth that after this document 14 was discovered by the Department of Commerce and by the 15 Justice Department it was not produced for three months until 16 Judicial Watch found out about it at deposition. 17 Now, was this ever raised with you, this series of 18 events or anything remotely related to this series of events? 19 MS. BRASWELL: Objection. 20 JUDGE FACCIOLA: Mr. Secretary, just a second. 21 Whenever a question is asked with a preface of those facts, 22 you certainly do not have to accept those facts as being 23 accurate. All you have to do is find out what the question 24 is and answer it. 25 MR. KLAYMAN: And I agree to that. I'm not setting 251 1 this forth as evidence, I'm just trying to see whether this 2 recitation of facts can allow you to pinpoint whether Exhibit 3 16 was ever brought to your attention by anyone while you 4 were Secretary of Commerce. 5 MR. ROBBINS: I have a slightly different matter 6 that will just take a second. The length of that preamble 7 reminds me that we've heard in other questions some rather 8 lengthy reading from documents into the record. That's 9 obviously counsel's choice and I haven't objected to any of 10 it. 11 I will, however, object strenuously if there's any 12 effort on the part of counsel to either go beyond 4:30 or 13 seek any additional time from this man. 14 JUDGE FACCIOLA: We'll talk about that in a moment, 15 Counsel. We'll go on. 16 My point to the secretary is I saw the look on his 17 face that he was concerned that the sentence began with a 18 paragraph of facts Mr. Secretary may not want to concede are 19 true and I was just trying to tell him that he doesn't have 20 to do that, but in the interests of time, he's a good enough 21 lawyer to pick out where the question is. 22 And if you an answer it, I would appreciate it if 23 you could. 24 MR. KLAYMAN: Well, can I address this question 25 first? 252 1 JUDGE FACCIOLA: Sure. Go ahead. 2 MR. KLAYMAN: First of all, Mr. Robbins, the reason 3 that I set up this appointment and it's a very important 4 appointment, is because you told me that you wanted to start 5 at 9:30 because Mr. Kantor had to leave at 4:00, so therefore 6 I set up this appointment. It's been canceled once before. 7 Secondly, we have engaged in a lot of discussion 8 here with the Court, the Court was quite gracious in 9 entertaining the discussion, but it's not our fault that we 10 had the discussion and it does take up some time. 11 So for you to take the position that because I was 12 trying to accommodate you and when you wanted to leave and 13 you said you couldn't finish today that I don't get to come 14 back and finish my deposition I think is unfair and 15 inappropriate. 16 JUDGE FACCIOLA: Well, we're going to get to the 17 question of a continuation of the secretary's deposition at 18 4:20. Let's see if we can get more done. I'll certainly 19 hear you then, Counsel, and explain to you how we're going to 20 grapple with that question, and you as well, Ms. Braswell. 21 Let's see if we can get as much done in the next -- 22 THE WITNESS: I'm not aware -- 23 JUDGE FACCIOLA: We've exhausted these poor 24 reporters here who have been gracious enough not to insist 25 upon a break, so let's see if we can get going. 253 1 THE WITNESS: I'm not aware of any of the facts you 2 related. Could you do me a favor and maybe you could help 3 me, what date was this document produced? 4 MR. KLAYMAN: This document was produced -- well, I 5 don't want to say when it was -- I just want to know whether 6 it was ever brought to your attention. 7 THE WITNESS: I have -- I said it before, Counsel, 8 I have never seen this document before in my life. 9 BY MR. KLAYMAN: 10 Q And the issue of its not being produced has never 11 been brought to your attention? 12 A No. 13 Q Now, Mr. Kantor, after Ron Brown died, did you have 14 an occasion to go into his office while his effects were 15 still in that office? 16 A Only briefly. 17 Q And when was that? 18 A I think the afternoon of the 13th of April, 19 although I'm not certain at this time. I think it was after 20 the 13th. I think it was the day after I was sworn in. 21 Q And what was the occasion of your going into that 22 office? 23 A I went into the department to meet with the 24 undersecretaries and others who had substantial 25 responsibility and I walked into the office, I wanted to 254 1 make it clear I wanted to make sure that Secretary Brown's 2 two secretaries and the Brown family had time to remove his 3 personal effects and to be sensitive to the tragic situation 4 that we were all involved with. 5 Q And what did you observe when you entered the 6 office? 7 A Nothing out of the ordinary. 8 Q Did you enter the office with anyone? 9 A Oh, I'm sure someone -- I can't remember who, I'm 10 sure people walked in with me because I wouldn't have known 11 where the office was. I visited Ron a few times in his 12 office but, of course, I wasn't familiar with the layout of 13 the department. 14 Q Did you walk in with family members, did you walk 15 in with Barbara Schmitz, Melanie Long? 16 A I can't recall. Counsel, I can't recall. 17 Q Were they women or men? 18 A Probably both. 19 Q Do you remember any aspect of the appearance of any 20 of these people? 21 A No, I don't remember who it was. 22 Q Caucasian, African-American? 23 A Counsel, I said I don't remember. I don't know how 24 else to tell you. I don't recall. It was very brief. 25 Q And when you walked in that office, you saw papers 255 1 on Mr. Brown's desk, correct? 2 A No, I did not. 3 Q There was nothing on his desk? 4 A I don't know if there was or not. I didn't see any 5 papers on his desk. 6 Q Did you see any papers anywhere? 7 A That doesn't mean there wasn't or there was. I 8 didn't see any papers on his desk. 9 Q Did you see any papers anywhere in his office? 10 A I don't remember seeing any papers anywhere in his 11 office. 12 Q Did you go through his drawers? 13 A Absolutely not. 14 Q Did you ask anyone to clean out his office then or 15 later? 16 A I acceded to the Brown family's request that they 17 have time to remove his personal effects. 18 Q Did you set up a procedure to have individuals 19 clean out that office and inventory what was in the office to 20 make sure that Department of Commerce documents and effects 21 were not taken? 22 A I was assured by Mr. Ginsberg, who was the chief of 23 staff at that point, that that would occur in that manner, 24 that all documents would be put in the appropriate files or 25 sent to the appropriate agency or section of the Department 256 1 of Commerce. 2 Q You were assured, but did you direct Mr. Ginsberg 3 to do that, or did he tell you that's what he was doing? 4 A He said that's the way he would operate and I 5 thought that was the appropriate way to proceed. 6 Q Did you ask him to do an inventory of what was 7 taken out of that office? 8 A I don't believe I did. 9 Q Did anyone ask you to -- do you know whether anyone 10 inventoried what was taken out of that office? 11 A I don't know. No. 12 Q Now, at the time that you walked into that office, 13 you were aware that Secretary Brown was under an independent 14 counsel investigation, correct? 15 A Yes. 16 Q And you were aware that there were allegations in 17 this Judicial Watch lawsuit that he had not produced all 18 documents to Judicial Watch? 19 A I might have been vaguely -- I was aware of the 20 Judicial Watch lawsuit. Whether or not I was aware of all 21 the allegations, I can't recall at this time. 22 Q And did you ask anyone or did you yourself seek 23 to ascertain whether or not any documents responsive to 24 Judicial Watch's FOIA requests were in Brown's office after 25 he died? 257 1 A No, because I made the assumption that any official 2 documents were returned to their appropriate place and any 3 documents I would have to see were given to me and therefore 4 it would not have been a subject of discussion. 5 Q So it was never raised at all. 6 A No. 7 Q Do you know of anyone at the department or 8 otherwise in attempting to ascertain whether there were 9 documents and things in Secretary Brown's office that should 10 have been produced to Judicial Watch but which were not? 11 A No. 12 Q Do you know to this day whether anyone, either 13 Secretary Brown or anyone else, ever searched Secretary 14 Brown's office to see whether there were documents in there 15 responsive to Judicial Watch's FOIA requests? 16 A No, I don't. 17 Q Did you yourself ever make an attempt to search 18 that office for documents responsive to Judicial Watch's FOIA 19 requests? 20 A At that point in time? 21 Q At any point in time. 22 A Well, when I became secretary, I used the office. 23 Obviously, I wouldn't need to search for documents, I knew 24 where they were, if there were any documents responsive, 25 which there weren't, not before I went into the office after 258 1 all the secretary's personal effects were removed. 2 Q So if I understood that correctly, you didn't make 3 any attempt to search Brown's office after he died for 4 Judicial Watch responsive documents. 5 A No. Absolutely not. No. I did not. 6 Q Do you know who took documents out of Secretary 7 Brown's office when the effects were cleaned out? Who in 8 particular? 9 A I assume his two secretaries and my guess is Dalia 10 Traynham was also involved because of probably schedules and 11 other things that were in there. I don't know if the chief 12 of staff, Mr. Ginsberg, was involved, but I assume he 13 supervised them. 14 During that period of time, my best friend was 15 killed in an auto accident. I mean, it was not exactly one 16 of the better couple of weeks of my life, and so some of this 17 is a little vague to me, but I can tell you I never asked 18 anyone to look for documents that might have been related to 19 the Judicial Watch lawsuit that might have been in Secretary 20 Brown's office. No, I did not. 21 Q Do you have any knowledge as to whether documents 22 in Secretary Brown's office at the time he died were 23 subsequently shredded by department employees? 24 A I have no knowledge of that whatsoever. 25 Q Have you ever written anything about the issue of 259 1 whether or not documents in Secretary Brown's office at the 2 time he died were destroyed? 3 A Have I ever written anything? 4 Q Yes. 5 A No. 6 Q Do you know of anyone who has? 7 A No, not that I know of. I mean, I've read 8 newspaper allegations or allegations have been made by 9 counsel or by others, and I'm not criticizing, I'm just 10 saying there have been allegations, but I've never -- 11 I've never written anything nor have I seen anything official 12 or unofficial in the Department of Commerce written about 13 that. 14 Q And you've never seen anything in writing about 15 whether documents were removed from his office after he died? 16 A Only to the extent of the Judicial Watch lawsuit 17 and certain allegations that were made or in newspaper 18 articles, but not in other documents. I don't know -- I'm 19 sorry, Counsel, I'm not sure what you're driving at. Could 20 you be more precise? I think that would be helpful to me. 21 Q Okay. I'm just trying to find out. Do you know if 22 there's any Department of Commerce documents which reflect -- 23 A I see. I'm sorry. 24 Q -- documents being removed from Secretary Brown's 25 office after he died? 260 1 A There may be some documents with regard to 2 inventory of what was removed and what wasn't removed. 3 In fact, there probably is or was and you may even have 4 them, I don't know. 5 Q I don't. 6 A But -- 7 Q We never got an inventory. Do you know where that 8 inventory is? 9 A No. I have no idea. I've never seen it. But with 10 regard to anything else, I'm not aware of any other document. 11 Q What leads you to believe there may have been an 12 inventory? 13 A Because I believe there might have been some 14 note -- someone might have put in writing what was given to 15 me and what was sent back to the various agencies inside the 16 Department of Commerce or to other agencies. That's the only 17 reason I would believe that. 18 Q Where would that have been stored? 19 A I have no idea. 20 Q And that would have been ordinary procedure, 21 wouldn't it? When you clean out an office of someone who is 22 deceased -- 23 A Yes, to do an inventory. Sure. Of course. Of 24 course. I just assume, but I don't know that. Let me make 25 it clear. I'm not trying to play games. Don't know it, I 261 1 just assume it in order that people would then have a working 2 knowledge of what I had and what was sent back. 3 Q Have you ever discussed the removal of documents 4 from Secretary Brown's office with Barbara Fredericks? 5 A No. 6 Q With anyone in the General Counsel's office? 7 A I discussed it with Sue Esserman only to the degree 8 that there was an allegation, it might have been by Judicial 9 Watch, I just don't know, it might have been by Judicial 10 Watch, that documents were destroyed. 11 And I asked Sue to explain to me, and I asked what 12 her explanation was, what that was, she was my General 13 Counsel, because I was concerned about that. But that's the 14 only thing I know about that. 15 Q And you don't know of anything she put in writing. 16 A I don't recall anything in writing. 17 MR. KLAYMAN: I'll ask the court reporter to mark 18 as -- 19 Exhibit 21, is it? 20 THE COURT REPORTER: 20. 21 MR. KLAYMAN: 20. This is a document of June 21, 22 1996 to the Honorable Robert S. Walker, U.S. House of 23 Representatives. "Dear Chairman Walker: In response to your 24 June 7, 1996 letter, enclosed are the Department's answers to 25 your questions. Sincerely, Mickey Kantor." 262 1 (Kantor Deposition Exhibit No. 20 2 was marked for identification.) 3 BY MR. KLAYMAN: 4 Q You signed this letter, did you not? 5 A Yes. That's my signature. 6 Q And attached to this letter are five pages of 7 questions and answers to Congressman Walker, asking questions 8 about the removal of documents and things from Secretary 9 Brown's office after he died, correct? 10 A Yes. That's what it looks like. Yes, sir. 11 Q Okay. So in fact, there was something in writing 12 which you had seen and forwarded to Congressman Walker 13 concerning the issue of the removal of documents from 14 Secretary Brown's office. 15 A This refreshes my recollection. Yes. That's why I 16 probably had it in my head there was an inventory of 17 documents because on the last page here it does inventory 18 documents. 19 Q Now, it's an important matter if a congressman 20 makes a request to you, you will supervise the response, 21 correct? In the ordinary course -- 22 A In many cases, not in all, but in many cases, yes. 23 Q And in this case, you did supervise the response, 24 did you not? 25 A I saw the response. Whether I supervised each and 263 1 every question and each and every answer is not the question, 2 but I certainly saw it before it went, because I signed the 3 letter, the covering letter, as you can see on June 21, 1996. 4 Q And you wouldn't have sent anything to Congressman 5 Walker which was false or misleading, correct? 6 A Not that I would have known to be. Of course not. 7 Q So according to your previous testimony, you would 8 have made sure that the information in here was correct 9 before you sent it to him, correcT? 10 A I would have asked the people in charge who 11 produced the document, meaning the General Counsel's office, 12 whether or not they engaged in due diligence, if they assured 13 me they did and there was nothing in here that was 14 contradictory to anything I knew, then, of course, I would 15 accept that as anyone would, their General Counsel, as being 16 correct. Sure. 17 Q Who did you ask before sending this document to 18 Congressman Walker as to whether or not it was accurate? 19 A I can't remember except it would not -- it would 20 have been likely I would have asked either Sue Esserman or 21 Barbara Fredericks or both, but I just can't remember at this 22 point, obviously, who I asked. 23 Q Now, are you aware that documents were shredded 24 after April 3, 1996? 25 A No. 264 1 Q Were you aware that? 2 A I am not aware of that. 3 Q You're still not aware of that? 4 A No, I'm not. 5 Q Do you know that the person who has testified that 6 she shredded documents in this case was your scheduler, Dalia 7 Traynham? 8 A No, I didn't know that. 9 Q And are you aware that -- 10 A Was I secretary at that time? On what date did -- 11 since you've raised the issue, Counsel, you should give me a 12 date. 13 Q I will check that for you, but I'm asking you the 14 general question -- 15 A Then how do you know that occurred, if you don't 16 even know the date? 17 Q Well, she was your scheduler. Her name is Dalia 18 Traynham. 19 A Yes, was I Secretary of Commerce at the time? 20 Q Well, I'm not here to answer questions. I'm asking 21 the questions. 22 A Well, she was not my scheduler if I wasn't 23 Secretary of Commerce, therefore, I would have had no 24 knowledge of it, of course. And my guess is that it happened 25 between the time -- if it did happen, and I don't know that 265 1 it did, I'm accepting your word for it, counsel, between the 2 3rd of April when Ron Brown tragically died and the time I 3 became secretary. 4 Q What I can tell you, Mr. Kantor, and the reason 5 I'm asking you the question, the testimony obviously will 6 speak for itself, it doesn't matter what you or I say it 7 is -- 8 A Well, you were at the deposition, you must know 9 what it said. 10 Q Well, I'll ask the questions. The question I want 11 to ask you is this, was it ever brought to your attention 12 during your time as Secretary of Commerce that your 13 scheduler, Dalia Traynham, had shredded documents taken out 14 of Ron Brown's office? 15 A No. 16 Q Was it ever brought to your attention that 17 Ron Brown's assistants, Melanie Long and Barbara Schmitz, 18 had asked Ms. Traynham to shred those documents? 19 A No. Nothing official, no. Absolutely not. 20 Q Other than what I just told you here today, have 21 you ever heard this before? 22 A About shredding official documents? 23 Q Yes. 24 A At the time I was secretary? No. 25 Q About shredding documents. Shredding documents 266 1 that were in Ron Brown's office. 2 A I'm sorry, Counsel. I can't answer a question 3 that's not specific. 4 Q Well, I'll give you the specific question. Have 5 you ever heard from the time that Ron Brown died to the 6 present that Dalia Traynham had shredded documents taken out 7 of Ron Brown's office after he died? 8 A Official documents of the Department of Commerce? 9 No. 10 Q Just documents. Any documents. 11 A I don't recall any documents, but certainly not 12 official documents. No. 13 Q Do you know of anyone who might know which 14 documents were shredded? 15 A I have no idea. If I don't know there was any 16 shredding, how would I know which documents were shredded? 17 But it would help me a lot if you would give me a date. 18 Q Since you were Secretary of Commerce -- and when 19 did you leave? It was in 1997, right? 20 A January 23, 1997. 21 Q Right. So you were there from April 12, 1996 -- 22 A To January -- 23 Q January 23, 1997. Okay. Is this something that 24 you would have in the ordinary course of your duties been 25 advised of, that your scheduler had shredded documents out of 267 1 Ron Brown's office? Would that have been a proper procedure, 2 to let you know? 3 MS. BRASWELL: Objection. 4 JUDGE FACCIOLA: What's the grounds of the 5 objection? 6 MS. BRASWELL: He said your scheduler was shredding 7 documents. The witness has already testified that he doesn't 8 know she was his scheduler at the time the alleged shredding 9 went on. 10 JUDGE FACCIOLA: I see. 11 MR. KLAYMAN: I can rephrase the question. 12 JUDGE FACCIOLA: Please do so. 13 BY MR. KLAYMAN: 14 Q Is this something that -- is the fact that Dalia 15 Traynham, who was an employee of the Department of Commerce, 16 the fact that she shredded documents out of Ron Brown's 17 office after he died, is that something in the ordinary 18 course of your procedures in running that department which 19 should have been brought to your attention? 20 A You're asking my opinion. You know, if they were 21 circulars to go to a county fair in Vera County, Texas, 22 obviously I wouldn't expect to be notified of that. If they 23 were memoranda concerning important operations of the 24 department, yes, I would have. But I don't know of any 25 shredding of official documents of any importance of the 268 1 Department of Commerce. In fact, I don't know of shredding 2 of any documents. 3 Q Suppose that the documents that were shredded were 4 the responses of Ron Brown to the Independent Counsel, the 5 grand jury subpoena that was found in his office. Is that 6 something that in the ordinary course of procedures that you 7 put into effect at the department should have been brought to 8 your attention? 9 MS. BRASWELL: Objection. 10 MR. ROBBINS: Objection to the form. 11 JUDGE FACCIOLA: Sustained. Why is that -- why 12 should he accept that hypothesis? 13 MR. KLAYMAN: Well, Your Honor, it is the fact, 14 it's one of the claims that of the documents that were 15 shredded, there were more that were shredded other than that, 16 but that is one of the various types of documents that were 17 shredded. 18 JUDGE FACCIOLA: And the inquiry of the witness 19 is -- 20 MR. KLAYMAN: If you can phrase it better -- 21 JUDGE FACCIOLA: Okay. 22 Did it come to your attention, Mr. Secretary, that 23 someone in the Department of Commerce was shredding document 24 that had been removed from the secretary's office and those 25 documents involved the work or the memorialization of what 269 1 the secretary told the investigatory body that had the 2 authority to investigate certain matters, would you have been 3 concerned that that had occurred without your knowledge? 4 THE WITNESS: Absolutely. 5 BY MR. KLAYMAN: 6 Q And should that have been brought to your 7 attention? 8 A Absolutely. 9 Q And if documents that were shredded were 10 Mr. Brown's personal financial records, should that have been 11 brought to your attention? 12 A It depends. If they weren't subject to subpoena, 13 weren't subject to discovery in an official proceeding, no, 14 but I knew of no such shredding. But let me just go back and 15 say the answer is no. I mean, I don't -- it depends on the 16 documents. We all have different kinds of documents in our 17 possession. 18 MR. KLAYMAN: I'll show you what I'll ask the court 19 reporter to mark as Exhibit -- 20 THE COURT REPORTER: 21. 21 MR. KLAYMAN: 21. Exhibit 21 is an article which 22 appeared in The American Spectator, the June of 1996 issue. 23 Paragraph 1 talks about "Shredding Tears." And it states, 24 I'll just paraphrase it, you can read it, for time purposes, 25 on April 3rd, it talks about the shredding of documents 270 1 coming out of Ron Brown's office. 2 (Kantor Deposition Exhibit No. 21 3 was marked for identification.) 4 BY MR. KLAYMAN: 5 Q Did you ever see this article or any article that 6 made reference to shredding of documents? 7 A This article? No. 8 Q Or any other article that made reference. There 9 were several. 10 A Oh, yes. There were certain allegations that were 11 in the popular press. Sure. I saw those articles. Yes. 12 Q And you were aware that there were allegations that 13 documents removed from Ron Brown's office had been shredded. 14 A I was aware there were allegations in the press. 15 Yes. I've answered the question. 16 Q So tell me what, if anything, you did as Secretary 17 of Commerce to investigate that. 18 A I asked my General Counsel and I asked, I believe, 19 Mr. Ginsberg, I could be wrong about that, who was chief of 20 staff. He acted as my chief of staff of the first few weeks 21 of my tenure. Whether or not there was any truth to it and I 22 was assured there was none. 23 Q Did Mr. Ginsberg tell you on what basis -- 24 A Now, I don't know if it was Mr. Ginsberg. I just 25 said I'm not sure. I assume I asked him, too, but I 271 1 certainly would have asked the General Counsel, who at that 2 point acting was Kathleen Ambrose. And later I appointed Sue 3 Esserman to be General Counsel. 4 MR. KLAYMAN: I'm going to show you what I'll ask 5 the court reporter to mark as Exhibit 22. It's a declaration 6 of Barbara Schmitz. 7 (Kantor Deposition Exhibit No. 22 8 was marked for identification.) 9 MR. KLAYMAN: Exhibit 23, a declaration of Melanie 10 Long. 11 (Kantor Deposition Exhibit No. 23 12 was marked for identification.) 13 BY MR. KLAYMAN: 14 Q Exhibits 22 and 23 were signed on August 16, 1996. 15 You were Secretary of Commerce at that time, correct? 16 A On which date? I'm sorry, I apologize. 17 Q Both of these declarations were signed on 18 August 16, 1996. 19 A Yes. 20 Q You were Secretary of Commerce -- 21 A Yes, I was secretary at that time. 22 Q -- at that time. Have you seen either of these two 23 declarations before? 24 A I have no recollection of either of these 25 documents. No, sir. 272 1 Q So you haven't seen them before? 2 A No, I don't think so. 3 Q Were you aware of their preparation? 4 A I think I was aware they were prepared. I think 5 that -- but I didn't have any part in the preparation of the 6 documents at all. 7 Q Did you order their preparation? 8 A I believe Sue Esserman may have ordered their 9 preparation or may have been involved in their preparation. 10 Ordered -- I'm not sure how to interpret ordered, but I think 11 that Sue certainly might have been or was involved in the 12 preparation of these documents. 13 Q And how do you know that? 14 A Because I recall a conversation at some point with 15 Sue that the declarations had been prepared. 16 Q And what did she tell you was in the declarations? 17 A Basically, that the allegations of improper 18 shredding of documents was untrue and there were declarations 19 to that effect from Barbara, Melanie and so on. 20 Q Well, you testified before, I believe, that you 21 didn't know that there were allegations that documents had 22 been destroyed or shredded period. 23 A No, that's not true. I said I read it in the 24 popular press. Of course I knew there were allegations. 25 Q Well, after I raised the press article with you, 273 1 correct? That's when you recollected that. 2 A No, that's not true, but go ahead, Counsel. 3 Q Did you review the drafts of these declarations 4 before they were finalized and signed? 5 A I don't recall. I doubt it seriously. 6 Q Did you review these declarations to see whether 7 they were consistent with the information that you had 8 provided to Congressman Walker? 9 A I think there was a gap in time between these 10 and -- I don't recall doing that. In fact, I think that 11 Congressman Walker was long before that, June, and these were 12 done some time subsequent to June, if I'm not mistaken. 13 Q That's why I'm asking you whether -- 14 A And so therefore I don't think I went back and 15 checked the -- it wouldn't have been something I would have 16 remembered just right off the bat, that I said I'd better go 17 back and check the answers to Congressman Walker, I don't 18 think I did that. 19 Q Do you know if anyone -- 20 A Whether or not anyone in General Counsel did that, 21 I don't know. 22 Q Do you know of anyone having checked -- 23 A But -- okay. Go ahead. I'm sorry. 24 Q Go on. 25 A No, no. I said but if they were inconsistent in 274 1 any way, I would assume it would have been brought to my 2 attention and it wasn't. 3 Q Did you ask anyone to check Schmitz's and Long's 4 affidavit to make sure that it was consistent with what you 5 had told Congressman Walker in the written correspondence 6 that we've looked at here today? 7 A No, I don't recall ever asking them to do that. 8 Q Now, if you were to have learned that there were 9 inconsistencies in these affidavits, Long's and Schmitz's, to 10 the information you provided to Congress, would you have told 11 someone at Commerce to correct the submission to Congressman 12 Walker? 13 A Yes. Do you want to tell me what it is? 14 Q Has anyone ever brought to your attention the issue 15 of whether or not the Schmitz and Long declarations were 16 consistent with what you submitted to Congress? 17 A No, but I -- I'm sorry, I'm a little confused here. 18 If you will tell me what you think is inconsistent, because 19 you're going -- 20 Q I'm not going to do that. I'm asking you the 21 question. I'm just asking you whether anyone ever said to 22 you these Long and Schmitz affidavits that were signed on 23 August 16th -- 24 A I don't recall anyone ever saying to me the Long 25 and Schmitz affidavits were inconsistent with anything I 275 1 provided to the Congress. 2 Q Now, the reason that you would want to correct a 3 congressional submission, if there was inconsistency, is 4 because one is required by law, based on your knowledge and 5 experience, to give correct information to Congress, correct? 6 A More than that, that would have been the 7 appropriate response to such a situation. 8 Q Have you ever reviewed the deposition testimony in 9 this case of Barbara Schmitz and Melanie Long? 10 A No. 11 Q Has anyone ever brought it to your attention? 12 A No. 13 Q Were you ever advised with regard to that 14 deposition testimony that testimony in those depositions was 15 inconsistent with your submission to Congressman Walker? 16 A No. 17 Q Are you aware of the Court having found in this 18 case on December 22, 1998, page 9 of its orders, "Subsequent 19 depositions revealed a flurry of document shredding in the 20 secretary's office, as well as easy access to the office by 21 the secretary's family and co-workers which lend plausibility 22 to Judicial Watch's claims that documents were unlawfully 23 removed and destroyed after the secretary's death"? 24 A I'm not aware of that. 25 Q Has anyone from the Department of Commerce or 276 1 Department of Justice contacted you after Judge Lamberth's 2 rulings on December 22, 1998 to advise you of any aspect of 3 those rulings? 4 A No. 5 Q Now, as someone who presided atop the Department of 6 Commerce during the period in question of producing documents 7 to Judicial Watch in part, based on your government 8 experience, isn't it their responsibility to let you know 9 what the judge ruled? 10 MS. BRASWELL: Objection. 11 MR. KLAYMAN: Based on your experience. 12 MS. BRASWELL: Objection. 13 JUDGE FACCIOLA: Sustained. 14 BY MR. KLAYMAN: 15 Q You do take responsibility for what went on at the 16 department when you were there, correct? 17 A Of course. 18 Q And consequently if someone violated the law under 19 your watch, you'd want to know about it, correct? 20 MS. BRASWELL: Objection. Your Honor, I don't see 21 the relevance. 22 JUDGE FACCIOLA: Overruled. 23 THE WITNESS: I would be concerned, but I wouldn't 24 have any responsibility -- at this point, I'm in private 25 life, I've been in private life since January 23, 1997, for 277 1 two years now, over two years. 2 BY MR. KLAYMAN: 3 Q Did you ever meet an Ira Sockowitz? 4 A I think on one of my negotiations -- no, it was 5 when I was Secretary of Commerce or one of my negotiations 6 for USTR, he may have provided advance work on one of my 7 trips and I think I met him. I really don't know him, but I 8 may have met him in that connection. 9 Q Do you have any knowledge as to whether or not Ira 10 Sockowitz removed classified documents from the Department of 11 Commerce during the time that you were Secretary of Commerce 12 MS. BRASWELL: Objection. 13 THE WITNESS: I only know of allegations -- 14 MR. KLAYMAN: You can respond. 15 THE WITNESS: -- in the newspaper. I don't know of 16 any other -- I don't think he was there when I was there. 17 BY MR. KLAYMAN: 18 Q Did you ever issue or did you ever order an 19 investigation of Sockowitz's removal of classified documents 20 from the Department of Commerce? 21 MS. BRASWELL: Objection. 22 JUDGE FACCIOLA: I take it your objection is that 23 it assumes that he knew of that fact. 24 MS. BRASWELL: Well, it also, Your Honor -- I mean, 25 it goes beyond -- the only issue are responsive documents 278 1 here. It's too broad a question to begin with. 2 JUDGE FACCIOLA: But I thought Mr. Klayman was 3 probing whether or not these events occurred when the 4 secretary was the head of the department and the department 5 was responding and therefore it would go to the question of 6 the secretary's knowledge, if any, of whether a person by 7 removing a document made it impossible to fully comply with 8 the FOIA request. 9 MS. BRASWELL: Well, that wasn't the way the 10 question was asked. 11 MR. KLAYMAN: Your Honor is more articulate than I. 12 JUDGE FACCIOLA: All right. The question as I 13 rephrased it, Mr. Secretary, did you become aware during your 14 term as Secretary of Commerce that a man named Sockowitz may 15 have removed from the Department of Commerce documents that 16 were part of the official records of the Department of 17 Commerce so that those documents could not be reviewed and 18 analyzed to see if they were responsive to the FOIA request 19 by Judicial Watch and should have been turned over? 20 THE WITNESS: I recall as part of these 21 conversations I referred to in the fall of 1996 that that 22 issue came up and that was part of the inquiry or review or 23 search that I asked my General Counsel, Mr. DeGeorge, staff 24 and others to engage in. 25 JUDGE FACCIOLA: And you did that because you 279 1 became aware from other sources -- 2 THE WITNESS: From other sources, from public 3 sources. 4 JUDGE FACCIOLA: -- that that may have occurred, or 5 at least it was alleged. 6 THE WITNESS: At least it was alleged. 7 JUDGE FACCIOLA: If I may, I'm looking at the clock 8 and it says 4:26. Where are we? Are we going to adjourn at 9 4:30? 10 MR. KLAYMAN: Yes, Your Honor. 11 MS. BRASWELL: I have no need to adjourn, 12 Your Honor. 13 MR. KLAYMAN: Well, we have more, Your Honor. I 14 obviously would be willing to accommodate the secretary's 15 schedule at his convenience. 16 JUDGE FACCIOLA: All right. Let me see if we can 17 proceed in the following fashion. 18 Ms. Braswell, as occurred the other day, I take it 19 you would have an objection to continuing. 20 MS. BRASWELL: And, Your Honor, I think it's 21 different this deposition than the deposition of Mr. Forest. 22 I mean, we have sat here for the entire day and as far as I 23 can tell there has been no testimony regarding any documents 24 that -- 25 JUDGE FACCIOLA: Let me -- I don't mean to 280 1 interrupt you, Ms. Braswell, but given the pressures of time 2 and the fact Counsel is going to leave, I was going to 3 propose the following way of approaching the question as 4 follows: we will deem Mr. Klayman as having moved the Court 5 to have continued this deposition to a time that is 6 convenient for the secretary and his counsel. I will 7 entertain a written objection by you, Ms. Braswell, to doing 8 so. 9 Counsel, I'd be glad to appreciate your views on 10 behalf of the secretary, and then I will rule. And of 11 course I'll give counsel for Judicial Watch an opportunity to 12 respond. 13 Is that fair? 14 MR. KLAYMAN: At this point, may I ask a few more 15 questions, Your Honor? 16 JUDGE FACCIOLA: Certainly. 17 MR. KLAYMAN: Before it's 4:30? 18 JUDGE FACCIOLA: I was trying to accommodate you 19 because I thought you had to leave, you turned into a pumpkin 20 at 4:30. 21 MR. KLAYMAN: Just so I'm clear on the record, if 22 Mr. Robbins had not asked me if he could leave at four, I 23 would not have set up this appointment. 24 JUDGE FACCIOLA: Okay. Well, that's certainly a 25 point -- 281 1 MR. KLAYMAN: Which has already been canceled once. 2 JUDGE FACCIOLA: That's a point you can make in 3 your objection, in your response to Ms. Braswell. 4 Now, of course, hope springs eternal, that the 5 three of you can get together and come up with an 6 understanding that the secretary can continue for a time 7 certain on a day certain with the understanding that it would 8 be no longer than that, that would be wonderful. 9 If you cannot reach such an agreement, I will have 10 to resolve the issue, presumably. But I would appreciate it, 11 Counsel, if you would be so gracious at least to give that 12 some thought, to an accommodation of everybody's schedules, 13 including the secretary's and Mr. Klayman's desire to 14 complete the deposition. 15 MR. KLAYMAN: I'll make myself available any time 16 the secretary is available, Your Honor. Night, day, weekend, 17 morning. 18 JUDGE FACCIOLA: That's very gracious of you to 19 volunteer my nights, days and weekends. Let me know if I can 20 do the same for you some time. 21 MR. KLAYMAN: You can, Your Honor. You have 22 ultimate power. We never say no to a judge. 23 BY MR. KLAYMAN: 24 Q Mr. Kantor, the issue of Sockowitz as quite apart 25 from FOIA requests, you did become aware that he took 282 1 classified documents out of the department, correct? 2 A I'm aware of the allegation. 3 Q Okay. So what I'm asking you is -- 4 A I don't know that for a fact. 5 Q What I'm asking you right now is separate that 6 from just this basic question which stands on its own, did 7 you or anyone else that you know of order an investigation by 8 the Inspector General into the removal by Sockowitz of 9 documents? 10 A I believe the Inspector General cooperated with 11 other authorities, it might have been the Justice Department, 12 in that connection, but I don't have a detailed recollection 13 of that. 14 Q Did you order that investigation by the Inspector 15 General? 16 A No, I think it was already being looked into. 17 Q Who, if anyone, ordered an investigation into 18 Sockowitz's removal -- 19 A I don't know. I don't know. 20 Q Were you ever questioned by anyone about 21 Sockowitz's removal of documents? 22 A No. Never. 23 Q Was anyone to the best of your knowledge? 24 A To my knowledge, no. No. Others might have been. 25 I have no knowledge of that. 283 1 Q Now, as part of your duties as Secretary of 2 Commerce, you considered it to be a serious allegation, that 3 Sockowitz allegedly removed classified documents without 4 authorization, correct? 5 A Oh, it's a serious allegation. Yes, sir. 6 Q And it's something which based upon your duties and 7 responsibilities you would have wanted to supervise, correct? 8 A Not necessarily. 9 MR. KLAYMAN: I'm going to ask that the following 10 exhibit be marked as Exhibit -- 11 THE COURT REPORTER: 24. 12 MR. KLAYMAN: -- 24. 13 MS. BRASWELL: May I have a copy, please? 14 MR. KLAYMAN: This is an article which appeared in 15 Human Events on -- 16 MS. BRASWELL: May I have a copy, please, before 17 you question him on it? 18 MR. KLAYMAN: I will give you a copy. 19 MS. BRASWELL: Thank you. 20 MR. KLAYMAN: It's entitled "The Mysterious Actions 21 of Ira Sockowitz." 22 (Kantor Deposition Exhibit No. 24 23 was marked for identification.) 24 MR. KLAYMAN: Mr. Kantor, this is not a humorous 25 matter, is it? 284 1 JUDGE FACCIOLA: That's all right. That's 2 unnecessary, Mr. Klayman. 3 THE WITNESS: We don't need to get into that. 4 JUDGE FACCIOLA: It's been a long day. Let's move 5 along. 6 MR. KLAYMAN: I understand, but -- you know, 7 laughing in the middle of a question -- 8 JUDGE FACCIOLA: Mark Twain said a man who didn't 9 have a sense of humor probably has no sense. 10 MR. KLAYMAN: Well, I agree, but I don't find 11 classified information funny. 12 THE WITNESS: Your Honor, counsel was laughing at 13 me because it's quite clear to him knowing me so well that I 14 probably have never read a copy of Human Events. 15 MR. ROBBINS: I had asked him if his subscription 16 had lapsed. 17 THE WITNESS: Yes, he was -- 18 MR. ROBBINS: Because I noted -- 19 THE WITNESS: And I apologize to Counsel -- 20 MR. ROBBINS: And it occurred to me that mine had. 21 BY MR. KLAYMAN: 22 Q Have you ever read Investors Business Daily? 23 A On occasion, yes. 24 MR. KLAYMAN: All right. We'll mark that as 25 Exhibit 25. 285 1 (Kantor Deposition Exhibit No. 25 2 was marked for identification.) 3 BY MR. KLAYMAN: 4 Q Have you seen either of these two articles before, 5 24 and 25? 6 A No, sir. Let me make sure. Let me look at them. 7 No, I haven't seen these. 8 Q Well, the article pinpoints the date, and this is 9 to refresh your recollection, that Mr. Sockowitz removed the 10 documents during your reign at the Commerce Department. 11 The top page of the document entitled "Human 12 Events" says "On August 2, 1996, Ira Sockowitz formally left 13 his job as a Commerce Department lawyer to follow his boss, 14 Ginger Lew, to a new job at the Small Business 15 Administration." 16 A I have never seen this article. 17 Q Have you ever discussed Ira Sockowitz with 18 Ginger Lew? 19 A No. 20 Q You know Ginger Lew, don't you? 21 A I've met Ginger Lew. 22 Q When did you meet Ginger Lew? 23 A Oh, I think there was a Department of Commerce 24 small business meeting regarding trade and she was there. 25 Q Okay. Based on the articles which you did read, 286 1 you are aware that Ms. Lew is someone who worked with 2 John Huang at the Department of Commerce? 3 A I've read her name in connection with John 4 Huang and the Department of Commerce and problems before 5 I got there, at least the allegation of problems. I 6 don't know that. No, not of my own knowledge. Of course 7 not. 8 Q Do you recollect reading in the articles that 9 you did see about Sockowitz or the press reports that he 10 removed information, classified information, about satellite 11 encryptions? 12 A I don't recall that specifically it was 13 satellite, I just remember removal of classified documents. 14 At this point, that's quite a long time ago. 15 Q Does encryptions ring a bell? 16 A No, it doesn't. It really doesn't. 17 Q Okay. Are you aware that he removed from 18 the information that you obtained three CIA classified 19 reports -- 20 A No, I'm not aware of that. 21 Q -- on Russia, China and India? 22 MS. BRASWELL: Objection. 23 THE WITNESS: I'm not aware of that. I just don't 24 know that. 25 BY MR. KLAYMAN: 287 1 Q No one's ever brought that to your attention? 2 A That's not what I said. I don't either recall -- 3 I don't recollect ever being told that or seeing any document 4 that would reflect that. 5 Q When you were Secretary of Commerce, did you 6 implement any procedures to keep track of classified 7 materials that were removed from the department? 8 MS. BRASWELL: Objection. 9 JUDGE FACCIOLA: Repeat the question, Mr. Klayman. 10 BY MR. KLAYMAN: 11 Q When you were Secretary of Commerce, did you 12 implement any procedures to keep track of classified 13 materials that are taken outside of the department's 14 building? 15 JUDGE FACCIOLA: The objection is overruled. 16 THE WITNESS: It's my recollection procedures are 17 already in place. 18 BY MR. KLAYMAN: 19 Q And what were they? 20 A Oh, I'm not particularly -- you know, I don't 21 have any particular knowledge at this point or memory of what 22 they were, but it's my recollection they were already in 23 place. 24 MR. KLAYMAN: Your Honor, we can adjourn here. 25 JUDGE FACCIOLA: Thank you very much. 288 1 MR. KLAYMAN: Thank you. 2 (Whereupon, at 4:35 p.m., the deposition of 3 MICHAEL KANTOR was adjourned.) 4 * * * * *