FOR THE DISTRICT OF COLUMBIA

PLAINTIFFS' MOTION TO COMPEL FURTHER TESTIMONY

AND FURTHER PRODUCTION OF DOCUMENTS FROM

KENNETH BACON AND FOR SANCTIONS

Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Plaintiffs, by counsel, respectfully request that the Court enter an order compelling Kenneth Bacon to provide further testimony and documents. Plaintiffs request that the documents be reviewed by the Court in camera. Plaintiffs also seek sanctions for the continuing improper litigation conduct of the Clinton Justice Department?s counsel Anne Weismann. As grounds therefore, Plaintiffs state as follows:

I. INTRODUCTION.

The release and misuse of over 900 FBI files is only part of a pattern of privacy violations by the Clinton Administration and its allies and agents. No one is immune; whether it is Plaintiffs, Kenneth Starr, public interest groups, journalists, or even judges who make rulings against, or even criticize, the Administration. In a piece called ?Blow Back,? Jonathan Broder, Washington Bureau Chief of Salon, a Clinton ?front? organization posing as an independent Internet journal, foretold of the strategy?while also smearing respected columnist George Will.⁽¹⁾ That pattern of conduct is manifested in the collection, of private, personal and highly confidential information about people in order to intimidate and blackmail them. This intimidation and blackmail is used to keep people from engaging in criticism and conduct the Clinton Administration perceives to be against its interests and to harm and destroy their reputations before ?the court of public opinion? if they do.

More recently, with apparent impeachment proceedings looming on the horizon, Salon?a Clinton front operation?reissued the same warning, showing that ?Filegate? is alive and well. Salon said that ?die-hard Clinton loyalists are spreading the word that a long-ignored but fearsome tactic has now resurfaced as an element in the president?s survival strategy: The threat of exposing the sexual improprieties of Republican critics, both in Congress and beyond, should they demand impeachment hearings in the House.?⁽²⁾ Mr. Broder quoted ?one close ally of the president? as saying that ?the Republicans with skeletons in their closets must assume everything is known and will come out. So the question is: Do they really want to go there??⁽³⁾ ?Sources in the Clinton camp say they are focusing their attention not only on issues of marital infidelity but also on issues of character,? according to Mr. Broder.⁽⁴⁾ Mr. Broder reports his ?sources? say that ?among those under scrutiny? are House Speaker Newt Gingrich, House Majority Leader Richard Armey and Republican Congressman Dan Burton.⁽⁵⁾

For the present Plaintiffs, but hardly for the entire potential class, this conduct manifested itself in the illegal transfer and acquisition of over 900 FBI files of individuals from the FBI to the Clinton White House.

This story predates 1993. Former presidential advisor Dick Morris admitted that the 1992 Clinton campaign used private investigators to obtain private and embarrassing information to coerce the silence of women sexually involved with President Clinton while he was Governor of Arkansas.⁽⁶⁾ The effort was run by Betsy Wright, who, at crucial and relevant times, Secret Service logs show later visited Defendant Craig Livingstone at odd hours in the White House.⁽⁷⁾ In 1993, then unknown to the public, the Clinton White House received the FBI files that are now the subject of this lawsuit. In 1996, former Rep. William Clinger, who was investigating the White House Travel Office scandal, discovered that the FBI file of the former head of that office, Billy Dale, was transferred to the White House.⁽⁸⁾

It soon became apparent that over 900 such files were transferred from the FBI to the White House. Most, if not all the files were on Republicans. Among the FBI files that were found in the White House Office of Personnel Security, in addition to those of the Plaintiffs, were those of some prominent individuals, including Linda Tripp and former Bush Administration officials James A. Baker and Kenneth Duberstein along with Tony Blankley, former aide to Speaker Newt Gingrich.⁽⁹⁾ The FBI file of President Bush?s former press secretary, Marlin Fitzwater, was among those gathered by Mr. Marceca.⁽¹⁰⁾ FBI Director Louis Freeh said that this file transfer and acquisition was an ?egregious violation of privacy? and that the FBI had been ?victimized? by the Clinton Administration while the FBI said the transfer and acquisition was ?without justification.?⁽¹¹⁾

As has been true in nearly all of its thirty-nine (39) scandals, the Clinton Administration called the transfer an ?innocent snafu? and tried to blame the transfer on the Secret Service.⁽¹²⁾ The Secret Service disputed the Clinton Administration?s explanation.⁽¹³⁾ The Administration failed to provide a credible chain of custody for the files. Later it was revealed that two people working in the White House, David Craig Livingstone and Anthony Marceca, were instrumental in the illegal transfer and acquisition.⁽¹⁴⁾ Both Mr. Livingstone and Mr. Marceca had histories that made them better suited for work less respectable than what one would have expected to be occurring in the White House.⁽¹⁵⁾ The Clinton Administration has never provided a clear and credible answer to the question of how Mr. Livingstone was hired for his White House job and was unable to answer all of the important questions. Due to stonewalling, likely perjury and claims of the Fifth Amendment?s privilege against self-incrimination, a House of Representatives committee investigation never answered any significant questions for which Plaintiffs are now seeking answers, including the identity of anybody who saw the contents of the files and a precise description of how the files were used.⁽¹⁶⁾

FBI Director Louis Freeh recently said he was concerned enough about leaks of FBI information that he issued a direct warning to former FBI personnel about the matter.⁽¹⁷⁾ This directive almost certainly was issued in response to the news that his former FBI colleague Larry Potts, who allegedly gave the ?shoot on sight? order at Ruby Ridge, is now a virtual partner at Terry Lenzner?s Investigative Group International, Inc., who was hired by David Kendall to help conduct investigations to aid President Clinton's defense in the Whitewater, Paula Jones and other matters.⁽¹⁸⁾ Former FBI General Counsel, Howard Shapiro, left the FBI, in part because of ethical misjudgments, if not misdeeds, in Filegate and is now Mr. Lenzner?s personal attorney.⁽¹⁹⁾

Additional evidence for Plaintiffs? claims emerged earlier this year when former presidential aide George Stephanopoulos revealed on ABC News? This Week With Sam & Cokie that the Clinton Administration?s allies have an ?Ellen Rometsch strategy? to neutralize political opponents that involves the use of information to intimidate and blackmail people. Historically speaking, the ?Ellen Rometsch strategy? involves the use of FBI files to accomplish those goals. He also said that these allies will ?take down? others with them if the Clinton Administration goes down.⁽²⁰⁾ Tellingly, Mr. Stephanopoulos was not the only Clinton associate hearing about those same plans. Salon Internet site, which fronts for the Clinton Administration, echoed the same warnings against Clinton critics at around the same time, on February 12, 1998, revealing and warning that smear attacks, consistent with the ?Ellen Rometsch strategy,? were about to be launched against Rep. Bob Barr, Speaker Newt Gingrich, and others ?summoned to sit in judgment on President Clinton, should be he impeached.??⁽²¹⁾ Thus, Mr. Stephanopoulos? knowledge of this ?Ellen Rometsch strategy? of attacks is apparent, and confirming its source becomes increasingly important. Recently, Salon has confirmed that the ?Ellen Rometsch strategy? is continuing.⁽²²⁾

Material witnesses in matters that could implicate President and Mrs. Clinton in illegal conduct have had their privacy rights threatened, if not actually violated by the Clinton Administration. A witness in the Monica Lewinsky case, Kathleen Willey, had letters from her personnel file improperly released to the media by the White House.⁽²³⁾ The ?Ellen Rometsch strategy? erupted when Pentagon employee Linda Tripp, a material witness in Independent Counsel Kenneth Starr?s investigation, had information from her private Pentagon file illegally released to the media by Clinton political appointees.⁽²⁴⁾ During the deposition of Lanny Davis, he admitted that while employed at the White House he kept files on persons and entities⁽²⁵⁾ and released documents from these files to the media⁽²⁶⁾ without checking Privacy Act requirements⁽²⁷⁾ or obtaining permission from those persons who were the subjects of his files.⁽²⁸⁾

Thus, the publicly known facts clearly establish a course of conduct that goes well beyond the illegal transfer and acquisition of the subject FBI files. That transfer and acquisition merely is part of the Clinton Administration?s larger racketeering pattern and practice of improperly obtaining and releasing private information from government files about its perceived adversaries in order to intimidate and harm them.

The Defendants? previous claim that such pattern and practice evidence is irrelevant because it does not directly involve the subject FBI files, was rejected when this Court ruled that, at a minimum, this evidence is relevant to the discovery phase of this case.⁽²⁹⁾ Specifically, in the case of Linda Tripp, who is viewed by the Clinton Administration as one of its adversaries, the Court ruled that Plaintiffs may conduct discovery about the Clinton Department of Defense?s release of information from Ms. Tripp?s personnel file to reporter Jane Mayer. The Court said that the Tripp matter is a proper area of discovery because it can establish a ?permissible inference,? making it ?reasonable to conclude that FBI files were obtained and misused in the instant case.?⁽³⁰⁾

Plaintiffs have discovered much information about the illegal release of Ms. Tripp?s private information that the Clinton DoD has tried to hide. On April 30, 1998, Plaintiffs deposed Clifford Bernath, the Clinton DoD official identified as having released the Tripp information to Ms. Mayer when he was Principal Deputy Assistant to the Secretary of Defense for Public Affairs. At his deposition, Bernath testified that he was directed to obtain and release the Tripp information by his superior, Kenneth Bacon, Assistant Secretary of Defense for Public Affairs, a Clinton political appointee.⁽³¹⁾ Bernath testified he told Jane Mayer that Bacon ?has made it clear it?s [the release of the Tripp information] a priority,?⁽³²⁾ because Ms. Mayer ?was on deadline and whenever a reporter is on deadline, we call that a priority.?⁽³³⁾ As the Court noted, Bernath?s revelation that he was told to release the Tripp information by a Clinton political appointee was understood by the Court as conflicting with the Clinton Justice Department?s statements to the Court that the release was made by a career official.⁽³⁴⁾

The role of Bacon, a Clinton political appointee, became clearer when he testified that he took the initial call from Jane Mayer,⁽³⁵⁾ told Bernath about the search for Ms. Tripp?s private information,⁽³⁶⁾ and led Bernath to believe that releasing the information to Ms. Mayer was ?a priority.?⁽³⁷⁾ Bacon testified that he ?was very aware of what Bernath was doing and ? did nothing to stop it.?⁽³⁸⁾

This contrasts with Secretary of Defense William Cohen?s previous misleading public statements indicating that Bernath acted on his own in releasing the information.⁽³⁹⁾ Although Secretary Cohen said the release of Tripp?s information was ?certainly inappropriate, if not illegal,?⁽⁴⁰⁾ neither Secretary Cohen nor the White House told the public about the involvement of Bacon and others.⁽⁴¹⁾ Secretary Cohen said Bernath ?was responding to an inquiry from the press? without mentioning that Bernath was responding to direction from Clinton political appointee Bacon.⁽⁴²⁾ Bacon testified that after Secretary Cohen made his statement on Fox News Sunday, Bacon told him that he should correct his statement.⁽⁴³⁾ Yet, Bacon testified that he is unaware of Secretary Cohen ever correcting the record, and he is unaware of either the DoD or the Clinton Administration ever making a public statement that Bacon was involved in the release of Ms. Tripp?s information.⁽⁴⁴⁾ If it were not for Plaintiffs? depositions of Bernath and Bacon, Bacon?s involvement might never have been made public.

The Clinton DoD made other false statements about the circumstances of the Tripp release. Soon after the Tripp information was made public, Pentagon spokesman, Col. Dick Bridges, said that the person who gave Ms. Mayer the Tripp information (who the public later learned was Bernath), ?thought he was releasing ?innocent? information because it merely noted that Tripp said she had never been arrested.?⁽⁴⁵⁾ However, on May 15, 1998, Bacon testified that in the phone conversation with Ms. Mayer, when she first asked him how Ms. Tripp ?answered a specific question on her Security Clearance Form,? she ?said that she had information that Linda Tripp had been arrested? and ?told me the circumstances.??⁽⁴⁶⁾ Bacon further testified that when he first spoke to Bernath about Ms. Mayer?s request ?I told him exactly what Jane Mayer told me, which was that she had information that Linda Tripp had been arrested.?⁽⁴⁷⁾ Consistent with Bacon?s account, on April 30, 1998, Bernath testified that prior to his conversation with Ms. Mayer, Bacon told him ?that she indicated that she may have information that there was?that Ms. Tripp may have had a problem when she was young?.?⁽⁴⁸⁾ Bernath knew that if Ms. Mayer had information that Ms. Tripp had been arrested, it ?would be a serious circumstance and it would have to be investigated.?⁽⁴⁹⁾ So contrary to the statement by Mr. Bridges, prior to release of Tripp?s private information to Ms. Mayer, both Bacon and Bernath were told that Ms. Tripp had been arrested and neither Bacon or Bernath thought they were releasing ?innocent? information to Ms. Mayer.

The apparent cover-up also involved the destruction of documents. Bernath deleted some of his computer files after he had reason to know that he likely violated Ms. Tripp?s privacy rights and that his conduct would be investigated. He testified that he deleted the files between April 1-10, 1998.⁽⁵⁰⁾ Yet, he ?requested a Pentagon inquiry to examine the propriety of his actions, said a Pentagon spokesman, Lt. Col. Dick Bridges,? according to a March 18, 1998, New York Post article.⁽⁵¹⁾ Even Bacon testified that by March 17 or 18, Bernath told him he ?had asked for a legal review? of the circumstances behind the release.⁽⁵²⁾ That same article quoted Secretary Cohen as saying, ?The records are supposed to be protected by the privacy rules.?⁽⁵³⁾ Pentagon spokesman Lt. Col. Bridges also was quoted in the article as saying, ?the decision to release Tripp?s answer was ?one time only? and won?t apply to future requests.?⁽⁵⁴⁾ The article also quoted two U.S. Congressmen as calling for an investigation of Bernath?s conduct.⁽⁵⁵⁾ Only after Rep. Gerald B.H. Solomon wrote to Secretary Cohen, calling the release an apparent violation of the Privacy Act, did the Clinton DoD announce it had begun an investigation of the release.⁽⁵⁶⁾ It is likely that any request for an investigation by Bernath was motivated by Rep. Solomon?s letter. On March 28, 1998, The Washington Post published Nat Hentoff?s column, which said that the release of Ms. Tripp?s personnel information was a violation of her privacy rights, noting:

In the March 30 Weekly Standard, Richard Huff, co-director of the Justice Department?s Office of Information and Privacy, says: ?We would not do that. It would be a violation of the Privacy Act.?⁽⁵⁷⁾

Therefore, Bernath?s computer file deletions were done when he knew his role in the release of Ms. Tripp?s private information would be investigated and his computer files would be searched for likely evidence. His conduct creates a strong inference that he deleted his files in order to hide something improper. Commenting on these deletions, this Court said that ?cause for concern should exist when an upper-level government employee completely deletes his hard drive when this hard drive may have information relevant to an on-going criminal investigation, let alone the instant case?⁽⁵⁸⁾ and ?it is highly unusual and suspect for such an action to have been undertaken by Bernath when matters relating to Tripp are being investigated by the Office of the Independent Counsel.?⁽⁵⁹⁾

Moreover, it was recently reported that in addition to any violation of the Privacy Act, the Tripp release ?also contradicts the Pentagon?s internal guidelines.?⁽⁶⁰⁾ Those guidelines ?are routinely taught to all public affairs officers?both military and civilian?at a special school under Bacon?s purview.?⁽⁶¹⁾

Incredibly, Bernath was given a new job at higher pay after he helped violate Ms. Tripp?s privacy rights! Bacon testified that ?sometime during the week of March 16^th?⁽⁶²⁾ he selected Bernath to run the American Forces Information Service, which entailed a grade and pay increase for Bernath.⁽⁶³⁾ It is reported that in his new job, Bernath ?has direct control over the Fort Meade school that teaches privacy regulations to public affairs officers.?⁽⁶⁴⁾ Bacon testified that ?I offered him that job because I thought he was the best of the three candidates.?⁽⁶⁵⁾ Given Bernath?s violation of Ms. Tripp?s privacy rights, his own request for a legal review of his conduct, his improper deletion of computer files when he knew that investigators would want to see them and the Clinton DoD?s attempt to cover-up important facts about the violation, it is far easier to believe that Bernath was rewarded for his improper conduct than that he was really the best qualified candidate for a job that has control over a school that teaches privacy regulations.

The relationships between those involved in the Tripp release are important for assessing their motives and intent and obtaining the facts. Bacon was Bernath?s boss.⁽⁶⁶⁾ Both Monica Lewinsky and Linda Tripp worked in Bernath?s office in the Pentagon.⁽⁶⁷⁾ Bernath had ?influence? over them.⁽⁶⁸⁾ Bernath was one of Ms. Tripp?s superiors.⁽⁶⁹⁾ Bacon hired Monica Lewinsky for her Pentagon job.⁽⁷⁰⁾ Bernath was aware that Ms. Tripp said Ms. Lewinsky told her that President Clinton had an affair with Ms. Lewinsky.⁽⁷¹⁾ Bernath also was aware that the White House denied the allegation of that affair.⁽⁷²⁾ These facts raise questions about whether Bacon and Bernath viewed Ms. Lewinsky as somebody who had to be protected for the sake of the President, thus providing a motive for the attempt to destroy Ms. Tripp by releasing her private information. Additionally, after it became known around mid-January, 1998, that Bacon?s hiring of Ms. Lewinsky had come under criminal investigation by Mr. Starr?s Office of Independent Counsel, Bacon and Bernath had a further interest in destroying Ms. Tripp. Finally, any improper favoritism given to Ms. Lewinsky by Bacon or Bernath, such as in her hiring at the Pentagon, would be circumstantial evidence that they viewed her as somebody to be protected from Ms. Tripp.⁽⁷³⁾

Bernath testified that prior to his release of Ms. Tripp?s information, he never released similar information about anybody else, but after the Tripp release he released the same information about Mr. Bacon.⁽⁷⁴⁾ However, Ms. Tripp clearly was treated less favorably than Bacon when Bernath released their private personnel information. Bernath did not obtain Ms. Tripp?s authorization before releasing her information.⁽⁷⁵⁾ The only known person from whom Bernath sought authorization to release Ms. Tripp?s information was Bacon.⁽⁷⁶⁾ In sharp contrast, after a request from a conservative publication, Bernath released the same type of information about Bacon only after he obtained Bacon?s express authorization.⁽⁷⁷⁾

At his deposition, Bernath resisted disclosure of Ms. Mayer?s suspicious deference to him. According to Bernath, within a few days after his release of Ms. Tripp?s information to Ms. Mayer, she called him again and told him she received a call from reporter Tucker Carlson.⁽⁷⁸⁾ Bernath testified that Ms. Mayer told him that Mr. Carlson was a ?rabid anti-Clintonite and he may be calling me [Bernath].?⁽⁷⁹⁾ Bernath further testified that he ?assumed that she just wanted to give me a heads up?⁽⁸⁰⁾ and when asked what else Ms. Mayer said, Bernath replied, ?[t]hat was it.?⁽⁸¹⁾ However, later in the deposition, Plaintiffs? attorney reviewed Bernath?s notes about that phone call which showed that Bernath wrote that Ms. Mayer ?[w]ants to know how to respond. Doesn?t want to cause me [Bernath] any problems.?⁽⁸²⁾ Earlier in the deposition, Bernath did not mention that Ms. Mayer asked him ?how to respond? to Mr. Carlson. Since there is no evidence that Ms. Mayer promised Bernath confidentiality as a source of the Tripp information,⁽⁸³⁾ Ms. Mayer?s question to Bernath about how she should respond to Mr. Carlson raises significant questions about whether she was acting as a journalist or a political operative as foretold by Mr. Stephanopoulos and Salon. Indeed, Ms. Mayer previously worked with Sidney Blumenthal at The New Yorker. This may explain why earlier in the deposition Bernath failed to mention this aspect of Ms. Mayer?s second phone call, despite being asked for such information (?Q: What else did she say? A: That was it.?).⁽⁸⁴⁾

It appears that soon after the Lewinsky story became public, the White House Counsel?s Office requested information from White House files on Ms. Tripp as the President ignored a Congressional request for information about such searches. In Plaintiffs? deposition of Terry Good, Director of the White House Office of Records and Management, the following exchange occurred:

Q: Has any office of the White House or person made a request with regard to information or documentation concerning Linda Tripp?

A: I believe the counsel?s office probably did, yes.

Q: Who made that request?

A: I do not know.

Q: What was that request about?

A: Again, if I don?t remember the request, I can?t tell you what it was about. All I can say is it probably was about anything and everything that we might have in our files relating to Linda Tripp.⁽⁸⁵⁾

At about that same time, Rep. Gerald Solomon wrote a letter to President Clinton asking whether anyone had pulled Ms. Tripp?s White House file but did not receive a response.⁽⁸⁶⁾ Rep. Soloman cited Mr. Good?s deposition and the President?s failure to respond in a recent letter to Independent Counsel Kenneth Starr referring to the matter as a ?potential obstruction of a Congressional investigation? and ?intimidation of a federal witness.?⁽⁸⁷⁾

II. DISCUSSION.

1. Bacon Should be Compelled to Answer Plaintiffs? Questions.

The Clinton DoJ improperly prevented Bacon from answering numerous relevant questions, often based on its claim that the questions were not permissible in light of the Court?s April 13, 1998 Memorandum and Order and the Clinton DoD?s communication to Bernath. For example, during Bacon?s deposition, without any justification, Clinton DoJ attorney Anne Weismann determined that many questions were irrelevant to the case, simply because the questions involved conduct that occurred after the release of the Tripp information. She said: ?Events that happened after the dissemination of information on Linda Tripp?s security forms are not relevant to your lawsuit and are, therefore, outside the scope of what Bacon has been authorized to testify to today.?⁽⁸⁸⁾

However, the Court?s recent ruling effectively destroys Ms. Weismann?s unfounded and bad faith relevancy claim. Ruling on Plaintiffs? Motion to Compel Further Testimony and Further Production of Documents from Clifford Bernath and for Sanctions, the Court made clear that questions about conduct that occurred after the release of the Tripp information, including questions about Secretary Cohen?s statement on Fox News Sunday, were relevant to the Tripp release and therefore, relevant to this case:

[T]hese questions are clearly relevant in light of the court?s April 13, 1998 memorandum and order. The questions posed by plaintiffs request information that directly bears on the distribution of the information from Tripp?s files and whether the White House played any role in the release of this information.

. . . .

While the answers to these questions may not establish direct White House involvement in the release of Tripp?s information, as defendants suggest, they clearly fall within the scope of relevancy in this case as defined by the court and may assist plaintiffs in establishing that some other individual within DOD besides Bernath or Bacon had contact with the White House pertaining to this matter.⁽⁸⁹⁾

Accordingly, the questions Bacon should be compelled to answer are set forth below along with the reasons why he should be compelled to answer those questions and any related follow-up questions.

A. Questions About Discussions With Secretary of Defense William Cohen Where Deliberative Process Privilege was Asserted

1. What answer did Bacon tell Secretary of Defense William Cohen to give about the Tripp release during a television interview?⁽⁹⁰⁾

Ms. Weismann prevented Bacon from answering, claiming that the question calls for information outside the scope of what he?s been authorized to testify about and that it calls for information protected by the deliberative process privilege.⁽⁹¹⁾

Her first basis is clearly invalid. She stated that Bacon was authorized to testify about ?information concerning the recent disclosure of information contained in the Federal Security Clearance Form of Linda Tripp,?⁽⁹²⁾ but erroneously restricted the scope of that authorization with her unduly narrow definition of relevancy that excluded conduct occurring after the release of the Tripp information.⁽⁹³⁾ First, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽⁹⁴⁾ regulations do not apply to this case.⁽⁹⁵⁾ Second, the Court?s recent ruling regarding Bernath rejects Ms. Weismann?s unduly narrow definition of relevancy since the Court ruled that conduct occurring after the Tripp release is relevant to that issue.⁽⁹⁶⁾ Third, since the Tripp release was illegal (even Secretary Cohen said the release of Ms. Tripp?s information was ?certainly inappropriate, if not illegal,?⁽⁹⁷⁾) and there is substantial evidence that the Clinton DoD has tried to cover-up the facts about the release, thereby compounding the illegality and providing additional evidence of its guilt, Plaintiffs need to know the details of the cover-up. Information about how and from whom Secretary Cohen learned the details about the Tripp release and what he and other Clinton DoD employees did or didn?t do to accurately present the facts, is vital to proving Plaintiffs? claim that this was a deliberate Clinton Administration attempt to destroy a perceived adversary and federal court witness by misusing private information from a government file.

Ms. Weismann?s second basis for preventing Bacon from answering, the deliberative process privilege, is equally invalid. The D.C. Circuit recently stated that the deliberative process privilege does not apply in a case that involves government misconduct:

For example, where there is reason to believe that the documents sought may shed light on government misconduct, ?the privilege is routinely denied,? on the grounds that shielding internal deliberations in this context does not serve ?the public?s interest in honest, effective government.?⁽⁹⁸⁾

When explaining how the deliberative process privilege ?disappears altogether when there is any reason to believe government misconduct occurred,? the D.C. Circuit explained how much more easily the deliberative process privilege can be overcome compared to the presidential communications privilege:

[W]hile both the deliberative process privilege and the presidential privilege are qualified privileges, the Nixon cases suggest that the presidential communications privilege is more difficult to surmount. In regard to both, courts must balance the public interests at stake in determining whether the privilege should yield in a particular case, and must specifically consider the need of the party seeking privileged evidence. But this balancing is more ad hoc in the context of the deliberative process privilege, and includes consideration of additional factors such as whether the government is a party to the litigation. Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred.⁽⁹⁹⁾

In our case, there is much reason to believe government misconduct occurred, both in regard to the subject FBI files and the release of Ms. Tripp?s private information by the Clinton DoD. FBI Director Louis Freeh said that the transfer and acquisition of the subject FBI files was an ?egregious violation of privacy? and that the FBI had been ?victimized? by the Clinton Administration while the FBI said the transfer and acquisition was ?without justification.?⁽¹⁰⁰⁾ Secretary Cohen said the release of Tripp?s information was ?certainly inappropriate, if not illegal,?⁽¹⁰¹⁾ while neither Secretary Cohen nor the White House told the public about the involvement of Bacon and others⁽¹⁰²⁾ even after Bacon told Secretary Cohen that he should correct his statement.⁽¹⁰³⁾ Moreover, the Tripp release ?also contradicts the Pentagon?s internal guidelines?⁽¹⁰⁴⁾ that ?are routinely taught to all public affairs officers?both military and civilian?at a special school under Bacon?s purview.?⁽¹⁰⁵⁾

The Pentagon misled the public about the Tripp release. The Pentagon falsely told the public that Bacon and Bernath thought they were releasing ?innocent? information about Ms. Tripp,⁽¹⁰⁶⁾ when both Bacon and Bernath knew that the information was not ?innocent.?⁽¹⁰⁷⁾

Bernath deleted his computer files when he knew his role in the release of Ms. Tripp?s private information would be investigated and his computer files would be searched for likely evidence,⁽¹⁰⁸⁾ causing this Court to say that ?cause for concern should exist when an upper-level government employee completely deletes his hard drive when this hard drive may have information relevant to an on-going criminal investigation, let alone the instant case?⁽¹⁰⁹⁾ and ?it is highly unusual and suspect for such an action to have been undertaken by Bernath when matters relating to Tripp are being investigated by the Office of the Independent Counsel.?⁽¹¹⁰⁾

After Bacon and Bernath violated Ms. Tripp?s privacy rights, Bacon selected Bernath to run the agency that ?has direct control over the Fort Meade school that teaches privacy regulations to public affairs officers,?⁽¹¹¹⁾ resulting in a grade and pay increase for Bernath.⁽¹¹²⁾ Bacon testified that ?I offered him that job because I thought he was the best of the three candidates.?⁽¹¹³⁾ Given Bernath?s demonstrated lack of concern for privacy rights, it is difficult to think of somebody who would be a worse person to control that Fort Meade school.

Therefore, the facts show that government misconduct occurred when the subject FBI files were transferred by the FBI to the Clinton White House, when Ms. Tripp?s private information was released and continued to occur as the Clinton DoD tried to cover-up the original misconduct regarding Ms. Tripp and reward one of the primary violators of her rights. Given those facts and the D.C. Circuit?s ruling that ?the privilege disappears altogether when there is any reason to believe government misconduct occurred,?⁽¹¹⁴⁾ clearly, there is no basis for application of the deliberative process privilege here because of the government misconduct.

The following three questions also involve discussions with Secretary Cohen and the same argument in favor of compelling Bacon to answer question no. 1 applies to these questions:

2. What did Bacon tell Secretary Cohen about the Tripp matter in preparation for another television interview of Cohen?⁽¹¹⁵⁾

Ms. Weismann prevented Bacon from answering, claiming ?[d]iscussions that Bacon had with Secretary Cohen that postdate the release of this information are not relevant, are outside the scope of what he?s been authorized to testify to and are also protected by the deliberative process privilege.?⁽¹¹⁶⁾

3. Did Bacon discuss with Secretary Cohen the legality or appropriateness of the release of Ms. Tripp?s private information, about the investigation of how the release occurred and whether Secretary Cohen should publicly name only Bernath as the one who released the information?⁽¹¹⁷⁾

Ms. Weismann prevented Bacon from answering, claiming that the questions call for information protected by the deliberative process privilege and for testimony outside the scope of what he has been authorized to testify about.⁽¹¹⁸⁾ However, Ms. Weismann would allow Bacon to answer about conversations that occurred before Ms. Tripp?s information was released.⁽¹¹⁹⁾

4. Did Bacon discuss with Secretary Cohen or is he aware of anybody else communicating with Secretary Cohen, about whether the way Ms. Tripp completed her personnel form was a serious matter that needed to be investigated by the DoD?⁽¹²⁰⁾

Ms. Weismann prevented Bacon from answering, claiming that it calls ?for testimony that?s outside the scope of that to which he?s been authorized to testify and also protected by the deliberative process privilege.?⁽¹²¹⁾

B. Questions About Discussions With Secretary of Defense William Cohen Where Deliberative Process Privilege was Not Asserted

The following six questions also involve discussions with Secretary Cohen and the same argument in favor of compelling Bacon to answer question no. 1 applies to these questions, except that the deliberative process privilege was not asserted at the deposition with regard to these questions.

5. What did Bacon tell Secretary Cohen about the Tripp matter in preparation for another television interview of Cohen?⁽¹²²⁾

Ms. Weismann prevented Bacon from answering, claiming: ?If this happened after the dissemination of information by Linda Tripp, then I would object to the question because it calls for information outside the scope of that which he has been authorized to testify to.?⁽¹²³⁾

6. Did Bacon tell Secretary Cohen what had occurred that led to the release of Ms. Tripp?s information?⁽¹²⁴⁾

Ms. Weismann prevented Bacon from answering, claiming the question was ?outside the scope of that to which he?s been authorized to testify.?⁽¹²⁵⁾

7. Did Bacon discuss with Secretary Cohen about whether he (Bacon) had instructed Bernath to release the Tripp information?⁽¹²⁶⁾

Ms. Weismann prevented Bacon from answering, claiming the question ?asks him to testify as to matters to which he?s not authorized?.?⁽¹²⁷⁾

8. Did Bacon discuss with Secretary Cohen whether he (Bacon) had knowledge that the release violated the Privacy Act?⁽¹²⁸⁾

Ms. Weismann prevented Bacon from answering, claiming the question ?asks him to testify as to matter to which he?s not authorized?.?⁽¹²⁹⁾

9. What did Secretary Cohen do after Bacon told the Secretary that he should correct his statement on Fox News Sunday about blaming only Bernath for the release?⁽¹³⁰⁾

Ms. Weismann prevented Bacon from answering, claiming that the question ?calls for information that?s outside the scope of that to which Bacon has been authorized to testify to today.?⁽¹³¹⁾

10. After Bacon told Secretary Cohen that he should correct the misimpression that Secretary Cohen gave the public about Bernath being the only one who released the information, did Secretary Cohen say that he should issue a correction?⁽¹³²⁾

Ms. Weismann prevented Bacon from answering, claiming ?we?re not going to allow any further inquiry into that subject matter. Would you please move on to other relevant topics to which he?s been authorized to testify to.?⁽¹³³⁾

C. Question Not Involving Secretary Cohen to Which Deliberative Process Privilege was Asserted

11. What did Bernath write in a memo shown to Bacon and given to a DoD press office duty officer about how the DoD press office should respond to questions about Jane Mayer?s article?⁽¹³⁴⁾

Ms. Weismann prevented Bacon from answering, claiming that it is ?protected under the deliberative process privilege.?⁽¹³⁵⁾ As explained in the argument regarding question no. 1, the deliberative process privilege does not apply here because of the facts establishing government misconduct.

D. Questions Not Involving Secretary Cohen and Not Involving Deliberative Process Privilege

12. Does Bacon take responsibility for Bernath?s⁽¹³⁶⁾ release of Ms. Tripp?s private information?⁽¹³⁷⁾

Ms. Weismann prevented Bacon from answering, claiming that the questions ?do not in any way implicate the subject matter that the Court has laid out as reasonable for discovery?⁽¹³⁸⁾ and that she does ?not see how the questions you are badgering him with in any way fall within the scope of what the Court has deemed relevant?.?⁽¹³⁹⁾

The question does seek relevant information. The Court has ruled that information about the Tripp release, including conduct that occurred after the release, is relevant to this case.⁽¹⁴⁰⁾ Evidence that the Clinton Administration, especially its political appointees, misused government files to violate the privacy rights of its perceived adversaries, including federal court witnesses, in order to intimidate them from giving truthful testimony about the Clinton Administration, is central to this case. Responsibility for the Tripp release is a material issue in this case for which Plaintiffs will present evidence at trial. Given that the facts show Bacon, a Clinton political appointee, was one of the persons who helped release Ms. Tripp?s private information, his responsibility for the Tripp release is directly relevant to this case. Accordingly, Bacon?s admission or denial of responsibility for the release is something to which Plaintiffs are entitled.

13. Did Bernath obtain the level of a political appointee?⁽¹⁴¹⁾

Ms. Weismann prevented Bacon from answering, claiming the question ?calls for information that?s outside that to which he?s been authorized to testify.?⁽¹⁴²⁾

As explained in the argument regarding question no. 1, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽¹⁴³⁾ regulations do not apply to this case.⁽¹⁴⁴⁾

Clearly, the question seeks information relevant to this case. Evidence that the Clinton Administration, especially its political appointees, misused government files to violate the privacy rights of its perceived adversaries, including federal court witnesses, in order to intimidate them from giving truthful testimony about the Clinton Administration, is central to this case. Given Bernath?s role in violating Ms. Tripp?s privacy rights, whether he was a political appointee of the Clinton Administration is directly relevant to Plaintiffs? case. According to the Clinton DoD, Bernath is ?a career government employee; he?s not a political appointee.?⁽¹⁴⁵⁾ Plaintiffs are entitled to Bacon?s knowledge about this.

14. What did Bacon discuss with President Clinton in December of 1995?⁽¹⁴⁶⁾

Ms. Weismann prevented Bacon from answering, claiming that the question ?does not concern the alleged leak of information from Linda Tripp?s Security Clearance Form and, therefore, it is outside the scope of that to which he?s authorized to testify to.?⁽¹⁴⁷⁾

As explained in the argument regarding question no. 1, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽¹⁴⁸⁾ regulations do not apply to this case.⁽¹⁴⁹⁾

The information sought by the question is relevant. Bacon is a Clinton political appointee who, by violating Ms. Tripp?s privacy rights, played a key role in attempting to smear and intimidate one of the key federal court witnesses who might implicate President Clinton in federal crimes. Certainly Plaintiffs are entitled to learn the degree to which the Clinton White House influenced Bacon?s illegal conduct and generally exerted political influence over the DoD. A proper examination of this issue requires that Bacon answer this question. Indeed, Bacon was vetted by high-ranking Clinton political appointees for his appointment as Assistant Secretary of Defense for Public Affairs in 1994.⁽¹⁵⁰⁾ Bacon was interviewed by the President?s Chief of Staff, Thomas ?Mack? McLarty, George Stephanopoulos and Dee Dee Meyers.⁽¹⁵¹⁾

Moreover, Plaintiffs do not know whether or not Bacon and President Clinton discussed matters bearing on the extent to which Bacon would go to serve the Clinton Administration, perhaps implicitly including the misuse of government files. Given what is already known about what the Clinton DoD did to Ms. Tripp and tried to cover up, the question is clearly reasonably calculated to discover evidence that would be admissible at trial.

15. What ?ruling? was made ?after the review of Ms. Tripp?s security form? that he discussed with Dick Bridges, one of his coworkers?⁽¹⁵²⁾

Ms. Weismann prevented Bacon from answering, including any explanation about the ?ruling? to which Bacon was referring, claiming that the mysterious ?ruling? is ?outside the scope of his authorization and it?s privileged and protected by the Privacy Act.?⁽¹⁵³⁾

As explained in the argument regarding question no. 1, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽¹⁵⁴⁾ regulations do not apply to this case.⁽¹⁵⁵⁾

The question clearly seeks relevant information. Given the Court?s recent opinion regarding Bernath, the fact that the Clinton DoD ?ruling? occurred after the Tripp release does not render the information sought by the question irrelevant. Therefore, Ms. Weismann?s relevancy objection must fail. Moreover, no specific privilege was identified by Ms. Weismann and no grounds were stated showing how the information might be protected by the Privacy Act.

16. What is Ms. Tripp?s present employment status with the DoD?⁽¹⁵⁶⁾

Ms. Weismann said that she would prevent Bacon from answering such a question because it ?is outside the scope of what he?s authorized to testify to.?⁽¹⁵⁷⁾

As explained in the argument regarding question no. 1, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽¹⁵⁸⁾ regulations do not apply to this case.⁽¹⁵⁹⁾

The question is reasonably calculated to lead to the discovery of admissible evidence. Given Ms. Tripp?s status as a federal court witness who could implicate President Clinton in federal crimes and the violation of her privacy rights by the Clinton DoD in an attempt to intimidate and hurt her, and the relevancy of her case to the Plaintiffs? case, the issue of whether Ms. Tripp has suffered employment retaliation by the Clinton DoD is relevant. For example, any Clinton DoD claim that the release of Ms. Tripp?s private information was devoid of any improper motivation, would be much less credible if Ms. Tripp also were being subjected to improper employment-related retaliation. Ms. Tripp worked in Bernath?s office in the Pentagon⁽¹⁶⁰⁾ and Bernath was supervised by Bacon.⁽¹⁶¹⁾ Bacon would have knowledge about Ms. Tripp?s employment status and Plaintiffs are entitled to learn what he knows about that.

17. Why was Bernath?s involvement revealed when, according to Bacon, it is not necessary to give the public all the facts now because the DoD?s Inspector General is still investigating the release?⁽¹⁶²⁾

Ms. Weismann prevented Bacon from answering, claiming that it is ?outside the scope of what he?s been authorized to testify to and it?s becoming repetitive and abusive.?⁽¹⁶³⁾

As explained in the argument regarding question no. 1, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽¹⁶⁴⁾ regulations do not apply to this case.⁽¹⁶⁵⁾

This question seeks relevant information. As explained above, the Clinton DoD has not been honest about the circumstances regarding its release of Ms. Tripp?s private information. When asked whether he believed ?there was an obligation to give the American people the full facts of what happened,?⁽¹⁶⁶⁾ Bacon testified said, ?I assume that the I.G.?s investigation will determine what happened. At that point it will be appropriate to discuss it. Right now I think we?ll wait for the investigation.?⁽¹⁶⁷⁾

It is appropriate for Plaintiffs? attorney to probe Bacon?s testimony. The U.S. Supreme Court has stated:

It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer?s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.⁽¹⁶⁸⁾

This question sought to test Bacon?s position about waiting for the I.G.?s report before discussing the Tripp release. Ms. Weismann improperly prevented Plaintiffs? attorney from probing Bacon?s testimony as envisioned by the Supreme Court.

18. What did Bacon say to Secretary Cohen?s Chief of Staff about the Secretary?s statement to the public that only mentioned Bernath as being responsible for the release?⁽¹⁶⁹⁾

Ms. Weismann prevented Bacon from answering, claiming that it is ?outside the scope of that to which he?s been authorized to testify.?⁽¹⁷⁰⁾

As explained in the argument regarding question no. 1, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽¹⁷¹⁾ regulations do not apply to this case.⁽¹⁷²⁾

The question seeks relevant information. Given the Court?s recent opinion regarding Bernath, the fact that the question involves conduct occurring after the Tripp release does not render the information sought by the question irrelevant. Therefore, Ms. Weismann?s relevancy objection must fail.

19. Did Bacon discuss his involvement in the Tripp release with Mr. Tyrer (Secretary Cohen?s Chief of Staff) before Secretary Cohen made his statement on Fox News Sunday?⁽¹⁷³⁾

Ms. Weismann prevented Bacon from answering, claiming that it is ?outside the scope of that to which he has been authorized to testify to. If he had discussions that were contemporaneous in time with the release of the information, he can answer that; otherwise, he cannot.?⁽¹⁷⁴⁾

As explained in the argument regarding question no. 1, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽¹⁷⁵⁾ regulations do not apply to this case.⁽¹⁷⁶⁾

The question seeks relevant information. Given the Court?s recent opinion regarding Bernath, the fact that the question involves conduct occurring after the Tripp release does not render the information sought by the question irrelevant. Therefore, Ms. Weismann?s relevancy objection must fail.

20. What were the job positions and qualifications of the two persons who Bacon says were competing with Bernath for a higher paying job that Bacon ultimately gave to Bernath after the Tripp release?⁽¹⁷⁷⁾

Ms. Weismann prevented Bacon from answering, claiming that it?s ?asking for information outside the scope of anything that is conceivably relevant to this matter and outside the scope, therefore, of what he?s been authorized to testify to?.?⁽¹⁷⁸⁾

As explained in the argument regarding question no. 1, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽¹⁷⁹⁾ regulations do not apply to this case.⁽¹⁸⁰⁾

The information sought is clearly relevant. Bernath was given a new job at higher pay after he helped violate Ms. Tripp?s privacy rights. Bacon testified that ?sometime during the week of March 16^th?⁽¹⁸¹⁾ he selected Bernath to run the American Forces Information Service, which entailed a grade and pay increase for Bernath.⁽¹⁸²⁾ It is reported that in his new job, Bernath ?has direct control over the Fort Meade school that teaches privacy regulations to public affairs officers.?⁽¹⁸³⁾ Bacon testified that ?I offered him that job because I thought he was the best of the three candidates.?⁽¹⁸⁴⁾ Given Bernath?s violation of Ms. Tripp?s privacy rights, his own request for a legal review of his conduct, his improper deletion of computer files when he knew that investigators would want to see them and the Clinton DoD?s attempt to cover-up important facts about the violation, it is far easier to believe that Bernath was rewarded for his improper conduct than that he was really the best qualified candidate for a job that has control over a school that teaches privacy regulations. The information is needed to see whether Bernath was rewarded for violating Ms. Tripp?s privacy rights.

The privacy rights of those who competed with Bernath for his new job can be adequately protected by the protective order procedure described by the Court in its ruling regarding Bernath.⁽¹⁸⁵⁾

21. Did anyone discuss with Bacon the likely result of the ongoing investigations of the release of Ms. Tripp?s information?⁽¹⁸⁶⁾

Ms. Weismann prevented Bacon from answering, claiming ?that is a subject to which he?s not authorized to testify?.?⁽¹⁸⁷⁾

As explained in the argument regarding question no. 1, any restrictions on Bacon?s testimony because of a lack of Clinton DoD ?authorization,? is improper given the Court?s ruling that the DoD?s Touhy⁽¹⁸⁸⁾ regulations do not apply to this case.⁽¹⁸⁹⁾

The question seeks relevant information. It directly involves the circumstances of the Tripp release and given the Court?s recent opinion regarding Bernath, the fact that the question involves conduct occurring after the Tripp release does not render the information sought by the question irrelevant. Therefore, Ms. Weismann?s relevancy objection must fail.

22. Was Bacon?s conduct regarding the release of Ms. Tripp?s information inappropriate or illegal?⁽¹⁹⁰⁾

Ms. Weismann prevented Bacon from answering, claiming, ?Bacon?s conduct is not at issue.?⁽¹⁹¹⁾

Bacon?s conduct is at issue. The Court has ruled that information about the Tripp release, including conduct that occurred after the release, is relevant to this case.⁽¹⁹²⁾ Evidence that the Clinton Administration, especially its political appointees, misused government files to violate the privacy rights of its perceived adversaries, including federal court witnesses, in order to intimidate them from giving truthful testimony about the Clinton Administration, is central to this case. The appropriateness and legality of Bacon?s conduct is a material issue in this case for which Plaintiffs will present evidence at trial. Given that the facts show Bacon, a Clinton political appointee, was one of the persons who helped release Ms. Tripp?s private information, his knowledge about the appropriateness and legality of his own conduct is directly relevant to this case and is something to which Plaintiffs are entitled.

2. Bacon Should be Compelled to Produce Documents in camera.

Plaintiffs request that Bacon be ordered to produce documents just as Bernath was ordered to do so in the Court?s recent Memorandum Opinion and Order.⁽¹⁹³⁾

Bacon's subpoena required him to produce documents.⁽¹⁹⁴⁾ He was required to produce responsive documents under his custody or control in either his personal or professional capacity.⁽¹⁹⁵⁾ As this Court has stated, ?[A]n individual served with a subpoena duces tecum has an obligation to conduct a reasonable search to ensure that non-privileged documents that are relevant or likely to lead to the discovery of admissible evidence are produced.?⁽¹⁹⁶⁾

However, Bacon?s document production failed to satisfy his duty under the subpoena. He did not produce documents to Plaintiffs, but produced documents only to the Clinton DoD and relied upon the Clinton DoD?s document production as his own.⁽¹⁹⁷⁾ However, he did not inquire about or learn whether other persons in his immediate office had conducted an adequate search of that office.⁽¹⁹⁸⁾ Additionally, he did not search his home computer, simply stating that ?there was no need to.?⁽¹⁹⁹⁾

The Court?s order to Bernath regarding document production should be extended to Bacon. In effect, Bacon delegated the search and decisions about what would be produced, to the Clinton DoD?s Office of General Counsel, but in light of the Clinton DoD?s ?erroneous perception of what is considered to be relevant in this case pursuant to the court?s April 13 memorandum and order,?⁽²⁰⁰⁾ Bacon should be ordered to ?re-examine documents originally considered to be nonresponsive to determine whether these documents were appropriately withheld? and ?re-examine all responsive documents, including the redacted portions of produced documents? and ?produce all responsive, nonprivileged documents and . . . submit all withheld documents to the court for in camera inspection to determine the legitimacy of each withholding.?⁽²⁰¹⁾ Naturally, this should include all of the computers within Bacon?s control and Plaintiffs request that the Court order that this be done by the Clinton DoD Inspector General, just as the Court ordered with regard to Bernath. The search for computerized documents should also include all computers, hard drives and backup tapes, etc., that might contain relevant documents.

Plaintiffs? prima facie showing that Bacon and Bernath violated the Privacy Act when they released Ms. Tripp?s information provides further justification for the full production and in camera review requested by Plaintiffs. Given his potential criminal liability, Bacon has sufficient reason to make less than a full and proper disclosure to Plaintiffs. The Court?s intervention is an appropriate precaution under the circumstances.

Additionally, the necessity for in camera review of the documents in this case is further highlighted by the Court?s ruling regarding Craig Livingstone, where the Court stated: ?But for the court?s request to review the documents withheld in camera, several documents would never have been produced to plaintiffs.?⁽²⁰²⁾

3. The Government Defendants and Their Attorneys Should Pay Sanctions.

In its recent opinion regarding Bernath, the Court ordered the government defendants to pay sanctions, largely,

on counsels? improper interpretations of this court?s April 13, 1998 memorandum and order and the DOD letter authorizing Bernath?s testimony. As discussed previously in this opinion, the interpretations advanced by counsel are simply unreasonable and resulted in the imposition of inappropriate and undue limitations on the scope of Bernath?s deposition testimony and document production.⁽²⁰³⁾

The same improper ?interpretations? were made by the defendants with regard to Bacon. Therefore, the Court is respectfully requested to impose the same sanctions as it did in the Bernath motion.

The Clinton DoJ?s attorney, Anne L. Weismann, Esq., clearly made her improper ?interpretations,? objections and instructions to Bacon in bad faith. Not only is this clear from the total lack of merit in her objections, but it is also clear from her demeanor at the deposition as evident from the transcript and videotape. It was entirely foreseeable that the Court would find her ?interpretations? of its April 13^th Order improper since at an April 30, 1998, emergency hearing during the Bernath deposition, the government attorneys were put on notice that the Court rejected their narrow ?interpretation? of the Court?s April 13^th Order and what was relevant for this case:

THE COURT: Well, let me say this. I don't think my order means a whole lot. I did not have a specific question before me of either a motion for a protective order by Bernath, or a proffer from them. So I didn't make any Touhy balancing or any of those kinds of factors in entering that order. So I think I was a little surprised at the instructions that DoD would give based on my order. I mean, I thought under the Touhy regs that an agency would try to get a proffer of the areas that somebody was going to go into and then decide those, and they sort of bypassed that by saying, "The Judge has allowed this," as though I hadn't allowed anything else. I didn't do that in my order. . . . But I didn't try to define the universe of what Bernath might know or what the plaintiffs might want to find out from Bernath.⁽²⁰⁴⁾

The transcript and videotape of the proceedings after the Court?s emergency hearing also demonstrate a lack of good faith. Even after the Court?s July 10^th Order regarding Bernath, the Clinton DoD and the Clinton DoJ attorneys have failed to give Plaintiffs the documents they clearly deserve, making it necessary for Plaintiffs to make this motion.

III. CONCLUSION.

For all of the reasons stated above, Plaintiffs respectfully request that the Court issue the same orders regarding Bacon as it did regarding Bernath, with the addition of sanctions upon Clinton DoJ attorney, Anne L. Weismann, Esq., in the form of attorneys fees, costs and

//

such other relief as the Court deems just and proper.

Respectfully submitted,

________________________

Larry Klayman, Esq.

DC Bar No. 334581

________________________

Allan J. Favish, Esq.

JUDICIAL WATCH, INC.

501 School Street, S.W.

Suite 725

Washington, D.C. 20024

(202) 646-5172

Attorneys for Plaintiffs

LOCAL RULE 108(m) CERTIFICATE OF COUNSEL

I certify that on August 12, 1998, I spoke by telephone to counsel for non-party Kenneth Bacon, Anne L. Weismann, Esq., and William J. Murphy, Esq., regarding this motion. They told me that they oppose the motion.

____________________

Allan J. Favish, Esq.

CERTIFICATE OF SERVICE

I hereby certify that on August 17, 1998, a true and correct copy of the foregoing Plaintiffs? Motion to Compel Further Testimony and Further Production of Documents from Kenneth Bacon and for Sanctions, was served by hand delivery on the following:

Attorneys for Defendants Federal Bureau of Investigation and Executive Office of the President:

James J. Gilligan, Esq.

Elizabeth Shapiro, Esq.

David J. Anderson, Esq.

U.S. DEPARTMENT OF JUSTICE

901 E Street, N.W., 9^th Floor

Washington, DC 20004

Attorneys for Defendant Hillary Rodham Clinton:

David E. Kendall, Esq.

Marcie R. Ziegler, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, DC 20005

Attorneys for non-party Kenneth Bacon:

Anne Weismann, Esq.

Benjamin M. Lawsky, Esq.

U.S. DEPARTMENT OF JUSTICE

Civil Division

Federal Programs Branch

901 E Street, N.W., Rm. 934

Washington, DC 20004

William J. Murphy, Esq.

MURPHY & SHAFFER

100 Light Street

Baltimore, MD 21202-1019

_____________________

Allan J. Favish, Esq.

1. ¹. See Jonathan Broder, ?Blowback,? Salon, Feb. 12, 1998, attached as Exhibit 1. Mr. Broder was dismissed by the Chicago Tribune for plagiarism. See Philip Terzian, ?The Plagiarist?s Salon,? The Weekly Standard, May 11, 1998, attached as Exhibit 2 & ?Jonathan Broder?s Plagiarism of the Week,? The Weekly Standard, May 18, 1998, attached as Exhibit 3.

2. ². Jonathan Broder & Harry Jaffe, ?Clinton?s sexual scorched-earth plan,? Salon, August 5, 1998, attached as Exhibit 4.

3. ³. Id.

4. ⁴. Id.

5. ⁵. Id.

6. ⁶. See Dick Morris, ?Clinton?s Secret Police in Overdrive,? New York Post, and accompanying articles, attached as Exhibit 5.

7. ⁷. See Secret Service WAVES Logs, attached as Exhibit 6.

8. ⁸. See House Comm. On Gov?t Reform and Oversight, Investigation into the White House and Dept. of Justice on Security of FBI Background Files, H.R. Doc. No. 862, 104^th Cong., 2^nd Sess. 62-65 (1996) (?House Report?), attached as Exhibit 7.

9. ⁹. See Defendant?s Response to Request #3 (showing requests by White House personnel for access to FBI background investigation files or summary reports on former Reagan and Bush Administration appointees and employees, showing the dates of the requests and the dates returned), attached as Exhibit 8.

10. ¹⁰. House Report at 55 & 59, attached as Exhibit 7.

11. ¹¹. House Report at 67-68, attached as Exhibit 7.

12. ¹². Id. at 9-10.

13. ¹³. Id. at 92-100.

14. ¹⁴. Id. at 18-55.

15. ¹⁵. Id.

16. ¹⁶. Id. at 16-18.

17. ¹⁷. See ?Freeh to FBI: Beware of Active Alumni,? Legal Times, March 9, 1998, attached as Exhibit 9.

18. ¹⁸. See Deposition of Terry Lenzner, Esq., at 90:22 - 91:22, 93:7-10, 94:14-20; see also President Clinton?s Mot. To Intervene at 2.

19. ¹⁹. See Lenzner Depo. at 9:8; House Report at 17-18.

20. ²⁰. See Excerpt of Transcript, This Week with Sam and Cokie, February 8, 1998, at 2-3, attached as Exhibit 10.

21. ²¹. See Broder, ?Blow Back,? Salon, Feb. 12, 1998, at 2, attached as Exhibit 1.

22. ²². See Jonathan Broder & Harry Jaffe, ?Clinton?s sexual scorched-earth plan,? Salon, August 5, 1998, attached as Exhibit 4.

23. ²³. See Peter Baker, ?Clinton Told Jones Team He Had No Willey Notes,? The Washington Post, March 29, 1998, at A1, attached as Exhibit 11.

24. ²⁴. See Dick Morris, ?Releasing Tripp Dirt Was ?A Priority,?? New York Post, May 5, 1998, and accompanying articles, attached as Exhibit 5. See also Jay Nordlinger, ?Bacon Tripps Up,? The Weekly Standard, May 18, 1998, attached as Exhibit 12.

25. ²⁵. Deposition Transcript of Lanny Davis (?Davis Depo.?) at 202:22 ? 206:1; 236:2-12; 239:5-18.

26. ²⁶. Davis Depo. at 237:17 ? 238:22.

27. ²⁷. Davis Depo. at 250:20 ? 252:2.

28. ²⁸. Davis Depo. at 240:11 ? 242:3.

29. ²⁹. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 6-7 (D.D.C. April 13, 1998).

30. ³⁰. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 6-7 (D.D.C. April 13, 1998).

31. ³¹. Deposition Transcript of Clifford Bernath (?Bernath Depo.?) at 270:9-10, 319:19 ? 320:16.

32. ³². Bernath Depo. at 319:19 - 320:16.

33. ³³. Bernath Depo. at 321:2-7.

34. ³⁴. See Alexander v. FBI, C.A. 96-2123, Transcript of Motions Hearing Before the Honorable Royce C. Lamberth, United States District Judge, at 43:1 ? 45:5 (D.D.C. April 30, 1998), attached as Exhibit 13.

35. ³⁵. Deposition Transcript of Kenneth Bacon (?Bacon Depo.?) at 195:4 ? 196:12.

36. ³⁶. Bacon Depo. at 211:4-22.

37. ³⁷. Bernath Depo. at 319:19 ? 320:16.

38. ³⁸. Bacon Depo. at 236:6-8.

39. ³⁹. See Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

40. ⁴⁰. Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

41. ⁴¹. See Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

42. ⁴². See Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

43. ⁴³. Bacon Depo. at 354:14-20.

44. ⁴⁴. Bacon Depo. at 362:20 ? 363:15.

45. ⁴⁵. Jeff Leen, ?Defense Dept. Probes Release of Tripp Data,? The Washington Post, March 14, 1998, at A15, attached as Exhibit 15.

46. ⁴⁶. Bacon Depo. at 195:20 ? 196:12.

47. ⁴⁷. Bacon Depo. at 223:1-9.

48. ⁴⁸. Bernath Depo. at 231:3 ? 232:11.

49. ⁴⁹. Bernath Depo. at 251:2-6.

50. ⁵⁰. Bernath Depo. at 301:1-20.

51. ⁵¹. Deborah Orin & Brian Blomquist, ?Pentagon Admits Leaking Tripp?s Personnel Files,? New York Post, March 18, 1998, attached as Exhibit 16.

52. ⁵². Bacon Depo. at 296:20 ? 298:7.

53. ⁵³. Deborah Orin & Brian Blomquist, ?Pentagon Admits Leaking Tripp?s Personnel Files,? New York Post, March 18, 1998, attached as Exhibit 16.

54. ⁵⁴. Deborah Orin & Brian Blomquist, ?Pentagon Admits Leaking Tripp?s Personnel Files,? New York Post, March 18, 1998, attached as Exhibit 16.

55. ⁵⁵. See Deborah Orin & Brian Blomquist, ?Pentagon Admits Leaking Tripp?s Personnel Files,? New York Post, March 18, 1998, attached as Exhibit 16.

56. ⁵⁶. Jeff Leen, ?Defense Dept. Probes Release of Tripp Data,? The Washington Post, March 14, 1998, at A15, attached as Exhibit 15.

57. ⁵⁷. Nat Hentoff, ?Linda Tripp?s Privacy,? The Washington Post, March 28, 1998, at A15, attached as Exhibit 17.

58. ⁵⁸. Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

59. ⁵⁹. Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

60. ⁶⁰. Bill Sammon, ?Tripp leak violated policy at Pentagon,? The Washington Times, June 8, 1998, attached as Exhibit 18; Department of Defense, ?Privacy Program,? DoD 5400.11-R, (August 1983), attached as Exhibit 19 (excerpts).

61. ⁶¹. Bill Sammon, ?Tripp leak violated policy at Pentagon,? The Washington Times, June 8, 1998, attached as Exhibit 18 (emphasis added).

62. ⁶². Bernath Depo at 388:2-3.

63. ⁶³. See Bacon Depo. at 385:6 ? 388:3.

64. ⁶⁴. Bill Sammon, ?Tripp leak violated policy at Pentagon,? The Washington Times, June 8, 1998, attached as Exhibit 18.

65. ⁶⁵. Bacon Depo. at 387:7-9.

66. ⁶⁶. Bernath Depo. at 26:8-11.

67. ⁶⁷. Bernath Depo. at 148:21 ? 149:8, 246:15 ? 247:5.

68. ⁶⁸. Bernath Depo. at 148:21 ? 149:21.

69. ⁶⁹. Bernath Depo. at 337:13 ? 338:7.

70. ⁷⁰. See DoD News Briefing, January 27, 1998, at 9-10, attached as Exhibit 20.

71. ⁷¹. Bernath Depo. at 151:14 ? 18.

72. ⁷². Bernath Depo. at 151:19 ? 152:1, 153:11-15.

73. ⁷³. As the Court noted: ?Circumstantial evidence is defined as ?proof that does not actually assert or represent the fact to be proven but from which a factfinder can infer an increased probability that the fact exists.? Mueller & Kirkpatrick, Evidence ? 4.1 (1995). Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 6-7 (D.D.C. April 13, 1998).

74. ⁷⁴. Bernath Depo. at 189:13-19.

75. ⁷⁵. Bernath Depo. at 190:18-22, 338:20-342:9.

76. ⁷⁶. Bernath Depo. at 169:6-10.

77. ⁷⁷. Bernath Depo. at 189:13 ? 190:17, 191:15 ? 192:3; 361:12 ? 366:2.

78. ⁷⁸. Bernath Depo. at 258:16 ? 259:5. Mr. Carlson works for The Weekly Standard.

79. ⁷⁹. Bernath Depo. at 259:14-17.

80. ⁸⁰. Bernath Depo. at 261:11-14.

81. ⁸¹. Bernath Depo. at 262:1-2.

82. ⁸². Bernath Depo. at 354:7 ? 355:6.

83. ⁸³. Bernath Depo. at 249:19 ? 251:11.

84. ⁸⁴. Bernath Depo. at 262:1-2.

85. ⁸⁵. Deposition of Terry Good (?Good? Depo.?) at 273:22 ? 274:13.

86. ⁸⁶. See Bill Sammon, ?White House combed Tripp file as scandal was breaking,? The Washington Times, at A10, July 17, 1998, attached as Exhibit 21.

87. ⁸⁷. See Bill Sammon, ?White House combed Tripp file as scandal was breaking,? The Washington Times, at A10, July 17, 1998, attached as Exhibit 21.

88. ⁸⁸. Bacon Depo. at 150:5-12. See Bacon Depo at 147:18 ? 148:4; 156:6 ? 157:7; 160:22- 161:10; 301:18 ? 302:3; 350:12-5.

89. ⁸⁹. See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 24-27 (D.D.C. July 10, 1998).

90. ⁹⁰. Bacon Depo. at 128:18 ? 135:9.

91. ⁹¹. Bacon Depo. at 130:7-14.

92. ⁹². Bacon Depo. at 45:4-13.

93. ⁹³. See Bacon Depo. at 150:5-12, 147:18 ? 148:4; 156:6 ? 157:7; 160:22- 161:10; 301:18 ? 302:3; 350:12-5.

94. ⁹⁴. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

95. ⁹⁵. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

96. ⁹⁶. See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 24-27 (D.D.C. July 10, 1998).

97. ⁹⁷. Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

98. ⁹⁸. In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997), quoting Texaco Puerto Rico, Inc. v. Dept. of Consumer Affairs, 60 F.3d 867, 885 (1^st Cir. 1995).

99. ⁹⁹. In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997) (emphasis added).

100. ¹⁰⁰. House Report at 67-68, attached as Exhibit 7.

101. ¹⁰¹. Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

102. ¹⁰². See Transcript of Fox News Sunday at 9, April 26, 1998, attached as Exhibit 14.

103. ¹⁰³. Bacon Depo. at 354:14-20.

104. ¹⁰⁴. Bill Sammon, ?Tripp leak violated policy at Pentagon,? The Washington Times, June 8, 1998, attached as Exhibit 18; Department of Defense, ?Privacy Program,? DoD 5400.11-R, (August 1983), attached as Exhibit 19 (excerpts).

105. ¹⁰⁵. Bill Sammon, ?Tripp leak violated policy at Pentagon,? The Washington Times, June 8, 1998, attached as Exhibit 18 (emphasis added).

106. ¹⁰⁶. Jeff Leen, ?Defense Dept. Probes Release of Tripp Data,? The Washington Post, March 14, 1998, at A15, attached as Exhibit 15.

107. ¹⁰⁷. See Bacon Depo. at 195:20 ? 196:12, 223:1-9; Bernath Depo. at 231:3 ? 232:11.

108. ¹⁰⁸. See pages 10-11, supra.

109. ¹⁰⁹. Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

110. ¹¹⁰. Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 38 (D.D.C. July 10, 1998).

111. ¹¹¹. Bill Sammon, ?Tripp leak violated policy at Pentagon,? The Washington Times, June 8, 1998, attached as Exhibit 18.

112. ¹¹². See Bacon Depo. at 385:6 ? 388:3.

113. ¹¹³. Bacon Depo. at 387:7-9.

114. ¹¹⁴. In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997) (emphasis added).

115. ¹¹⁵. Bacon Depo. at 145:13 ? 151:1.

116. ¹¹⁶. Bacon Depo. at 147:18 ? 148:4.

117. ¹¹⁷. Bacon Depo. at 349:12 ? 352:9.

118. ¹¹⁸. See Bacon Depo. at 349:15-21, 350:17 ? 351:5, 351:11-18, 352:2-9.

119. ¹¹⁹. See Bacon Depo. at 350:12-16.

120. ¹²⁰. Bacon Depo. at 382:21 ? 384:1.

121. ¹²¹. Bacon Depo. at 383:5-11.

122. ¹²². Bacon Depo. at 155:18 ? 161:10.

123. ¹²³. Bacon Depo. at 156:6-13.

124. ¹²⁴. Bacon Depo. at 300:10-17.

125. ¹²⁵. Bacon Depo. at 300:14-17.

126. ¹²⁶. Bacon Depo. at 300:18 ? 301:3.

127. ¹²⁷. Bacon Depo. at 300:22 ? 301:3.

128. ¹²⁸. Bacon Depo. at 301:4-12.

129. ¹²⁹. Bacon Depo. at 301:9-12.

130. ¹³⁰. Bacon Depo. at 354:14 ? 355:4, 362:6-13.

131. ¹³¹. Bacon Depo. at 362:8-13.

132. ¹³². Bacon Depo. at 367:20 ? 368:16.

133. ¹³³. Bacon Depo. at 368:11-16.

134. ¹³⁴. Bacon Depo. at 242:16 ? 244:8.

135. ¹³⁵. Bacon Depo. at 243:14 ? 244:18.

136. ¹³⁶. At his deposition, Bernath testified that he was directed to obtain and release the Tripp information by his superior, Kenneth Bacon. See Bernath Depo. at 270:9-10, 319:19 - 320:16.

137. ¹³⁷. Bacon Dep. at 170:11 ? 175:22.

138. ¹³⁸. Bacon Depo. at 172:18-21.

139. ¹³⁹. Bacon Depo. at 174:21 ? 175:2.

140. ¹⁴⁰. See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 24-27 (D.D.C. July 10, 1998).

141. ¹⁴¹. Bacon Depo. at 183:10 ? 185:10.

142. ¹⁴². Bacon Depo. at 183:13-16.

143. ¹⁴³. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

144. ¹⁴⁴. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

145. ¹⁴⁵. Jeff Leen, ?Defense Dept. Probes Release of Tripp Data,? The Washington Post, March 14, 1998, at A15, attached as Exhibit 15.

146. ¹⁴⁶. Bacon Depo. at 282:19 ? 287:10.

147. ¹⁴⁷. Bacon Depo. at 286:5-11.

148. ¹⁴⁸. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

149. ¹⁴⁹. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

150. ¹⁵⁰. Bacon Depo. at 11:1 ? 13:17; 21:21 ? 22:22.

151. ¹⁵¹. Bacon Depo. at 65:13 ? 81:17.

152. ¹⁵². Bacon Depo. at 330:7 ? 332:16.

153. ¹⁵³. Bacon Depo. at 331:11-16.

154. ¹⁵⁴. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

155. ¹⁵⁵. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

156. ¹⁵⁶. Bacon Depo. at 333:5 ? 334:6.

157. ¹⁵⁷. Bacon Depo. at 333:17-20.

158. ¹⁵⁸. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

159. ¹⁵⁹. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

160. ¹⁶⁰. Bernath Depo. at 148:21 ? 149:8, 246:15 ? 247:5.

161. ¹⁶¹. Bernath Depo. at 26:8-11.

162. ¹⁶². Bacon Depo. at 368:17 ? 372:20.

163. ¹⁶³. Bacon Depo. at 370:3-12.

164. ¹⁶⁴. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

165. ¹⁶⁵. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

166. ¹⁶⁶. Bacon Depo. at 368:17-21.

167. ¹⁶⁷. Bacon Depo. at 369:7-12.

168. ¹⁶⁸. Bronston v. U.S., 409 U.S. 352, 358-59, 93 S.Ct. 595 (1973).

169. ¹⁶⁹. Bacon Depo. at 372:21 ? 373:22.

170. ¹⁷⁰. Bacon Depo. at 373:6-9.

171. ¹⁷¹. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

172. ¹⁷². See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

173. ¹⁷³. Bacon Depo. at 290:10-12, 382:6-20.

174. ¹⁷⁴. Bacon Depo. at 382:10-15.

175. ¹⁷⁵. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

176. ¹⁷⁶. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

177. ¹⁷⁷. Bacon Depo. at 385:6 ? 389:5.

178. ¹⁷⁸. Bacon Depo. at 388:21 ? 389:5.

179. ¹⁷⁹. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

180. ¹⁸⁰. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

181. ¹⁸¹. Bernath Depo at 388:2-3.

182. ¹⁸². See Bacon Depo. at 385:6 ? 388:3.

183. ¹⁸³. Bill Sammon, ?Tripp leak violated policy at Pentagon,? The Washington Times, June 8, 1998, attached as Exhibit 18.

184. ¹⁸⁴. Bacon Depo. at 387:7-9.

185. ¹⁸⁵. See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 29-30 (D.D.C. July 10, 1998).

186. ¹⁸⁶. Bacon Depo. at 399:8-15.

187. ¹⁸⁷. Bacon Depo. at 399:11-15.

188. ¹⁸⁸. United States ex rel Touhy v. Ragen, 340 U.S. 462, 95 L.Ed. 417 (1951).

189. ¹⁸⁹. See Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 5-11 (D.D.C. June 15, 1998).

190. ¹⁹⁰. Bacon Depo. at 402:2-18, 404:16 ? 405:16.

191. ¹⁹¹. Bacon Depo. at 402:6-9; see id. at 404:19-22, 405:12-16.

192. ¹⁹². See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 24-27 (D.D.C. July 10, 1998).

193. ¹⁹³. See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 35-39 (D.D.C. July 10, 1998); Alexander v. FBI, C.A. 96-2123, Order (D.D.C. July 10, 1998).

194. ¹⁹⁴. See Exhibits to Deposition of Kenneth Bacon (May 15, 1998) at Exhibit 2 (Subpoena to Kenneth Bacon).

195. ¹⁹⁵. Bacon Depo. at 192:9-14.

196. ¹⁹⁶. Alexander v. FBI, C.A. 96-2123, Memorandum Opinion on Plaintiff?s Motion to Compel, Order to Show Cause and for Sanctions Including Attorneys? Fees at 26 (D.D.C. March 28, 1998).

197. ¹⁹⁷. Bacon Depo. at 186:18 - 187:10.

198. ¹⁹⁸. Bacon Depo. at 189:21 - 193:6.

199. ¹⁹⁹. Bacon Depo. at 187:11-16.

200. ²⁰⁰. See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 36 (D.D.C. July 10, 1998).

201. ²⁰¹. See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 36-37 (D.D.C. July 10, 1998).

202. ²⁰². Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 22 (D.D.C. July 27, 1998).

203. ²⁰³. See Alexander v. FBI, C.A. 96-2123, Memorandum Opinion at 44 (D.D.C. July 10, 1998).

204. ²⁰⁴. Alexander v. FBI, C.A. 96-2123, Transcript of Motions Hearing Before the Honorable Royce C. Lamberth, United States District Judge, at 32:8-19 (D.D.C. April 30, 1998), attached as Exhibit 13.