410 1 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA 2 -------------------------x 3 CARA LESLIE ALEXANDER : et al., : 4 : Plaintiffs : 5 : v. : Civil No. 96-2123 (RCL) 6 : FEDERAL BUREAU OF : 7 INVESTIGATION et al., : : 8 Defendants. : Volume 2 -------------------------x 9 10 Washington, D.C. 11 Monday, May 24, 1998 12 Continued deposition of 13 KENNETH BACON 14 a witness, called for examination by counsel 15 for Plaintiffs pursuant to notice and 16 agreement of counsel, beginning at 17 approximately 10:08 a.m. at the Offices of 18 Judicial Watch, Inc., 501 School Street S.W., 19 Washington, D.C., before Joan V. Cain, notary 20 public in and for the District of Columbia, 21 when were present on behalf on the respective 22 parties: 411 1 APPEARANCES: 2 On behalf of Plaintiffs: 3 LARRY KLAYMAN, ESQUIRE ROBERT CORRY, ESQUIRE 4 ALLAN FAVISH, ESQUIRE Judicial Watch, Inc. 5 501 School Street, S.W., Suite 725 Washington, D.C. 20024 6 (202) 646-5172 7 On behalf of Defendants Federal Bureau of Investigation and Executive 8 Office of the President: 9 JULIA FAYNGOLD COVEY, ESQUIRE Federal Programs Branch 10 Civil Division United States Department of Justice 11 901 E Street N.W., 9th Floor Washington, D.C. 20004 12 (202) 514-5302 13 On behalf of Defendant Department of Defense: 14 ANNE L. WEISMANN, ESQUIRE DAVID T. ZARING, ESQUIRE 15 Federal Programs Branch Civil Division 16 United States Department of Justice 901 E Street N.W., Room 1034 17 Washington, D.C. 20530 (202) 514-3395 18 BRAD WIEGMANN, ESQUIRE 19 Office of General Counsel United States Department of Defense 5 20 1600 Defense Pentagon, Room 3C975 Washington, D.C. 20301-1600 21 (703) 695-3392 22 412 1 APPEARANCES (CONT'D): 2 On behalf of Defendant Hillary Rodham Clinton: 3 PAUL B. GAFFNEY, ESQUIRE Williams & Connolly 4 725 Twelfth Street, N.W. Washington, D.C. 20005 5 (202) 434-5175 6 On behalf of Deponent: 7 WILLIAM J. MURPHY, ESQUIRE HALLIE A. MORELAND, ESQUIRE 8 Murphy & Shaffer 100 Light Street, 9th Floor 9 Baltimore, Maryland 21202-1019 (410) 783-7000 10 11 * * * * * 12 13 14 15 16 17 18 19 20 21 22 413 1 C O N T E N T S 2 EXAMINATION BY: PAGE 3 Counsel for Plaintiffs 416 4 BACON DEPOSITION EXHIBITS: 5 No. 1 - Notice of Deposition, 416 6 Attachments 7 No. 2 - Fax, Connolly to Klayman, 424 Attachments 8 No. 3 - Fax, Zaring to Klayman, 425 9 Attachment 10 No. 4 - Memorandum and Order 429 11 No. 5 - Letter, Zaring to Klayman, 437 Attachments 12 No. 6 - Letter, Quinlivan to Klayman, 488 13 Attachments 14 No. 7 - CNN Late Edition Transcript 497 15 No. 8 - New York Post Commentary 540 16 No. 9 - Message, Barr to Cohen, 561 Attachments 17 No. 10 - Letter, Murphy to Drudge 591 18 No. 11 - Letter, Murphy to Fallon, 594 19 Attachment 20 No. 12 - Letter, Murphy to Crane, 599 Attachments 21 22 * * * * * 414 1 P R O C E E D I N G S 2 THE VIDEOGRAPHER: Good morning. 3 This is the continuing deposition of Kenneth 4 Bacon, taken by the counsel for the 5 Plaintiffs in the matter of Cara Leslie 6 Alexander et al. v. Federal Bureau of 7 Investigation, et al., Case No. 96-2123 8 (RCL), held on this date, May 24, 1999, and 9 at the time indicated on the video screen, 10 which is 10:08 a.m. 11 Will counsel now introduce 12 themselves? 13 MR. KLAYMAN: Larry Klayman, 14 chairman and general counsel of Judicial 15 Watch. 16 MR. FITTON: Tom Fitton, President 17 Judicial Watch. 18 MR. CORRY: Robert Corry, Judicial 19 Watch. 20 MR. MURPHY: William J. Murphy; I 21 represent Mr. Bacon in his personal capacity. 22 MS. MORELAND: Hallie Moreland on 415 1 behalf of Mr. Bacon in his personal capacity. 2 MS. WEISMANN: Anne Weismann on 3 behalf of the Department of Defense and 4 Mr. Bacon in his official capacity. 5 MR. ZARING: David Zaring on behalf 6 of Mr. Bacon in his official capacity in the 7 Department of Defense. 8 MR. WIEGMANN: Brad Wiegmann with 9 Department of Defense. 10 MS. COVEY: Julia Fayngold Covey on 11 behalf of the Executive Office of the 12 President and the Federal Bureau of 13 Investigation. 14 MR. GAFFNEY: Paul Gaffney, 15 Williams & Connolly, on behalf of the First 16 Lady. 17 Whereupon, 18 KENNETH BACON 19 was recalled as a witness and, having been 20 previously duly sworn, was examined and 21 testified as follows: 22 EXAMINATION BY COUNSEL FOR PLAINTIFFS 416 1 CONTINUED 2 BY MR. KLAYMAN: 3 Q Mr. Bacon, how are you today? 4 A I'm fine, thank you. 5 MR. KLAYMAN: I'll show you what 6 I'll ask the court reporter to mark as 7 Exhibit 1 to this reconvened deposition. 8 (Bacon Deposition Exhibit No. 1 9 was marked for identification.) 10 BY MR. KLAYMAN: 11 Q Exhibit 1 is Plaintiffs' Notice of 12 Deposition of Kenneth Bacon. Attached to 13 Exhibit 1 is a subpoena duces tecum requiring 14 your presence here today on May 24, 1999, at 15 10:00 a.m. This subpoena duces tecum 16 requests the production of certain documents. 17 Have you seen Exhibit 1 before, 18 Mr. Bacon? 19 A Yes, I have. 20 Q And when did you see it? 21 A Wait a minute. 22 MR. MURPHY: You saw the subpoena, 417 1 actually. 2 BY MR. KLAYMAN: 3 Q Roughly. 4 A There are parts of this I have not 5 seen. 6 Q Which parts have you seen and when 7 did you see them, and which parts have you 8 not seen? 9 A I believe I saw the subpoena the 10 first time on Thursday, and I have not seen 11 Exhibit 1 previously. 12 Q You're referring to Exhibit A, the 13 document request; is that what you're talking 14 about? 15 A Exhibit 1. Does yours not have 16 this piece of paper attached to it? 17 Q Yes, it does. Did you see the 18 request for documents, which is set forth at 19 Exhibit A? 20 A Yes. 21 Q And did you look for the documents 22 which were requested in Exhibit A? 418 1 A Yes. 2 Q And where did you look for those 3 documents? 4 A I looked in my computer, in my 5 files, and in my notebooks. 6 Q Did anyone assist you in the search 7 for those documents? 8 A Not me personally, no, but I assume 9 that other people in my office were doing the 10 same thing with their files. 11 Q When you say you assumed that other 12 people in your office were doing the same 13 things with their files, what do you mean by 14 that? 15 A I mean that the subpoena was handed 16 out to all the likely characters, and they 17 were told to comply with the subpoena. 18 Q Who handed the subpoena out to the 19 likely characters? 20 A It was handed out by a woman named 21 Pat Bursell, who is the director of division 22 of management in the office of public 419 1 affairs. 2 Q When this was given to Mr. Bursell, 3 who gave it to her? 4 A You're asking me a level of detail 5 here that I sort of can't answer. I assume 6 the subpoena went to the lawyers at the 7 defense department who handed it down to the 8 -- to Mrs. Bursell, who handed it out to me 9 and to my secretary and to others in my 10 office. 11 Q Did you consult with any counsel, 12 any lawyers, in terms of responding to the 13 subpoena? 14 A I did not. 15 Q So you really don't know how the 16 subpoena was given to Ms. Bursell, and you 17 don't really know what instructions were 18 given to Ms. Bursell in terms of looking for 19 the documents? 20 A You are repeating what I told you, 21 yes. 22 Q So in fact you don't know whether 420 1 the documents were ever searched for? You 2 don't have any personal knowledge of that? 3 A I was given a subpoena and asked to 4 search for documents. I did that. 5 Q You know in terms of your own 6 search, correct? 7 A That's all I can attest to. 8 Q And did you receive any 9 instructions on how to search for the 10 documents? 11 A I did not. 12 Q How were you able to determine what 13 types of documents to search for and where to 14 search? 15 A I put the word "Tripp" into my 16 computer and printed out all the documents 17 that came out, and then I checked those 18 documents against a physical collection of 19 documents that I keep -- these were primarily 20 memos -- to make sure that the documents I 21 had had all the relevant attachments. I, as 22 I said, checked several files that I kept 421 1 near my desk and also I checked my notebooks. 2 This is approximately what I did a year ago 3 before I appeared here. 4 Q When you say notebooks, are you 5 referring to traditional notebooks or 6 notebook computers? 7 A The same four-by-six notebooks we 8 discussed at great length a year ago. 9 Q Are there any documents since the 10 date you were last deposed and today that 11 have been deleted from your hard drive or 12 other computer files? 13 A No, not that I deleted. 14 Q Are there documents that others 15 have deleted? 16 A I don't believe so. 17 Q I take it there's a Department of 18 Defense backup system for your computer? 19 A You would have to talk to computer 20 experts to find that. 21 Q Did anyone search that backup 22 system? 422 1 A I do not know. 2 Q But you didn't? 3 A I did not. I don't even know if 4 there is one. 5 Q Now, in response to the subpoena 6 are you producing any documents today? 7 A I have had handed over the 8 documents to the Department of Defense, and 9 if they are being produced they should have 10 been produced or will be. 11 MR. MURPHY: In addition, we're 12 producing, Mr. Klayman, some personal matters 13 that are responsive to the subpoena which 14 Mr. Bacon and I have discussed, and I have a 15 package for you. These are documents that 16 have been previously produced to the grand 17 jury that was investigating this matter and 18 one additional document that was generated 19 after the grand jury investigation was over. 20 MS. WEISMANN: And these are 21 documents that are produced on behalf of 22 Mr. Bacon in his official capacity. 423 1 MR. KLAYMAN: I take it that the 2 Department of Defense and Mr. Bacon 3 personally already have copies of both of 4 these? 5 MR. MURPHY: Yes. 6 MR. KLAYMAN: So, if we make other 7 copies, we only need to make them for 8 Mr. Gaffney and ourselves? 9 MS. WEISMANN: That's correct. 10 MR. KLAYMAN: Maybe Mr. Gaffney 11 already has them. 12 MR. GAFFNEY: No. 13 MR. KLAYMAN: If I make two copies 14 of this will that be sufficient? Anyone else 15 need copies? 16 I'll show you what I'll ask the 17 court reporter to mark as Exhibit 2, which is 18 a document of May 21, 1999, from the law firm 19 of Murphy & Shaffer in Baltimore to Larry 20 Klayman which attaches an objection to 21 subpoena duces tecum lodged on your behalf. 22 (Bacon Deposition Exhibit No. 2 424 1 was marked for identification.) 2 BY MR. KLAYMAN: 3 Q Have you ever seen this document 4 before, Mr. Bacon? 5 A I saw it in draft. 6 Q And when did you see it in draft, 7 roughly speaking? 8 A A week or so ago. 9 Q Is the document that I've shown to 10 you your final version of your objection 11 filed by your counsel? 12 A I believe so. I'm not sure I saw 13 the final version, but it appears to be close 14 to the draft, yes. 15 Q Take an opportunity to review it 16 and tell me if it's accurate or whether there 17 are other documents that are not being 18 produced that you know of. 19 MR. KLAYMAN: Could we just take 20 one minute? 21 THE VIDEOGRAPHER: Going off video 22 record at 10:20. 425 1 (Recess) 2 THE VIDEOGRAPHER: We're back on 3 video record at 10:21. 4 THE WITNESS: I'm not aware of any 5 documents that have been withheld other than 6 those specified in here, and I think this is 7 a very narrow group. 8 BY MR. KLAYMAN: 9 Q I'm sorry. I didn't hear you. 10 A I said I'm not aware of any 11 documents that have been withheld, any other 12 documents. 13 MR. KLAYMAN: I'll show you what 14 I'll ask the court reporter to mark as 15 Exhibit 3. 16 (Bacon Deposition Exhibit No. 3 17 was marked for identification.) 18 BY MR. KLAYMAN: 19 Q Exhibit 3 is a letter sent by 20 Mr. David T. Zaring of the Department of 21 Justice. It was faxed to our office I 22 believe it was last Friday, May 21, 1999, the 426 1 date of the letter, and it lists certain 2 objections on your behalf by virtue of your 3 professional capacity. Have you seen this 4 before? 5 A No. 6 Q Take an opportunity and review it. 7 Does this refresh your recollection as to 8 whether you've seen it? 9 A It refreshes my -- yes, it does 10 refresh it. 11 Q That you've seen it? 12 A No. 13 Q That you haven't seen it? 14 A No, I've not seen it. 15 Q Did anyone discuss with you from 16 the Department of Justice the objections 17 raised in this letter quite apart from the 18 letter itself? 19 A No. 20 Q Mr. Bacon, the first question I'm 21 going to ask you is did you discuss with 22 Secretary Cohen the legality or 427 1 appropriateness of the release of Tripp's 2 information? I'm talking about Linda Tripp, 3 about the investigation of how the release 4 occurred or whether Secretary Cohen should 5 publicly name only Clifford Bernath as the 6 person who released the information. 7 A No, I did not. 8 Q At any time? 9 MR. MURPHY: Do you want that read 10 back? It was a long question. 11 THE WITNESS: No. No, I 12 understand. 13 BY MR. KLAYMAN: 14 Q Let me break down the question 15 because that was compound. I'm reading to 16 you from the order of the judge of March 31, 17 1999. Have you seen that order? 18 A I have. My understanding was that 19 there were 22 questions listed in the order. 20 He denied a number of those questions, 21 perhaps nine of the questions, and that we're 22 supposed to limit our questioning here to 428 1 thirteen, and I'm prepared to answer those 2 questions. 3 You seem to be scrambling the order 4 of the questions or at least asking them in a 5 different format. It might be wise from the 6 efficiency standpoint to start at the 7 beginning and just march through the 8 questions since they are in somewhat of a 9 chronological order as I recall. 10 Q I'll be happy to show you a copy of 11 the order, but I have asked the questions 12 exactly as the judge has phrased them in his 13 order. I'm not going to ask them in the 14 judge's order because I think this will 15 facilitate the flow at the deposition. 16 MR. MURPHY: Could you just 17 enlighten us, Mr. Klayman -- 18 MR. KLAYMAN: I'll be happy to give 19 you a copy of the order so we can just read 20 them. 21 MR. MURPHY: I have the order. I'm 22 just asking which one -- 429 1 MR. KLAYMAN: This isn't a trick 2 question. 3 (Bacon Deposition Exhibit No. 4 4 was marked for identification.) 5 BY MR. KLAYMAN: 6 Q So what I'm referring to 7 initially -- 8 A You started with question three. 9 Q I'm starting with question number 10 three. 11 A Right. 12 Q Let me break it down for you. Did 13 Bacon, that's you -- 14 A But I had requested that you start 15 with question one. 16 Q I prefer to start with question 17 three. 18 A Okay. 19 Q We will get to question one, but 20 let's start with three. Did Bacon discuss 21 with Secretary Cohen the legality or 22 appropriateness of the release of Linda 430 1 Tripp's information from her Pentagon file? 2 What is the answer to that question? 3 A On March 13, I gave Secretary Cohen 4 a memo in preparation for an interview on 5 March 15 with Wolf Blitzer of CNN. In that 6 memorandum, which I discussed with him 7 briefly, I stated that he could get asked a 8 question about Linda Tripp in light of an 9 article that was expected to run in The New 10 Yorker and be out over the weekend, and I 11 recommended that in response to a question on 12 that article that he say that the issue was 13 -- that there were established procedures for 14 dealing with the issue and that the 15 administration would look into the facts. 16 He appeared on the program and, as 17 I recall, basically gave that answer, and 18 that answer, of course, was reported verbatim 19 in the deposition of last year, my deposition 20 here last year. 21 Again, in April of 1998 he was to 22 appear on a second program, Fox Morning News. 431 1 I believe the date was the 26th of April in 2 1998. I gave him another memo prior to that 3 that contained some information, a 4 considerable amount of information, actually, 5 on the background of the Linda Tripp case, 6 although I must say that Tripp was dealt with 7 only glancing in this memo, most of which 8 dealt with other issues, including Kosovo and 9 base closure, which was the main purpose he 10 was going on to the program, the main topic 11 he was going to discuss. 12 I did not discuss prior to that 13 program the legality or appropriateness of 14 the release of Tripp's information or the 15 investigation of how the release occurred. 16 Q And you've done so at no time? 17 A I didn't say that. I said prior to 18 that program I did not discuss that, nor had 19 I discussed prior to that program in April 20 whether Secretary Cohen should publicly name 21 only Bernath as the person who released the 22 information. 432 1 I had no discussion on any of those 2 points with the Secretary prior to April 26 3 or whatever the date was, 1998, before the 4 Fox News program. 5 Q Now, you say there were two 6 memoranda that were provided to Secretary 7 Cohen. Did I hear that correctly? 8 A You heard that correctly. 9 Q Have you produced both of those 10 memoranda? 11 A I've produced them to the 12 Department of Defense. 13 MR. KLAYMAN: Have those memoranda 14 been produced to us? 15 MS. WEISMANN: You have the 16 entirety of the documents we produced in the 17 past supplemented by our document production 18 today. 19 THE WITNESS: I believe these were 20 produced last year. 21 MR. KLAYMAN: We have never seen 22 those two memoranda. Do you want to take a 433 1 break and perhaps we can even give you access 2 to our documents, if you can tell us which 3 you think they may be, but we've never seen 4 them. 5 The way we can do this, we will 6 give to Mr. Bacon a copy of the documents 7 that have been produced, both by the 8 Department of Defense on your behalf and 9 documents that have been produced in your 10 individual personal capacity. If those two 11 memoranda are contained in there, if you 12 could find them. 13 MS. WEISMANN: Mr. Klayman, I think 14 this might be easier. It's my understanding 15 that for those two memoranda, which were 16 initially accounted for in the initial 17 subpoena to the Department of Defense, we 18 successfully asserted the deliberative 19 process privilege and were upheld by the 20 court. 21 MR. KLAYMAN: Well, then, we may 22 need to get a clarification from the court 434 1 because obviously the court would not have 2 allowed us to get into it orally if the 3 memoranda themselves were covered by the same 4 privilege which you asserted that was in fact 5 rejected by the court in allowing us to take 6 the testimony here today. Maybe we can come 7 to an agreement on that that we can see those 8 two memoranda. 9 MS. WEISMANN: We successfully 10 prevailed. The court's order is clear on the 11 scope of this deposition. 12 MR. KLAYMAN: Well, I'm going to 13 ask you right now whether we could consult on 14 a Rule 108 basis and see if we can resolve 15 the differences before having to move the 16 court. 17 MS. WEISMANN: When this deposition 18 concludes, we'd be happy to consult. 19 MR. KLAYMAN: Recognizing that what 20 we're trying to do right now is to avoid 21 having Mr. Bacon come back a third time, 22 we're trying to be accommodating. 435 1 MS. WEISMANN: Mr. Klayman, we 2 asserted a deliberative process privilege 3 over these two documents, and the court 4 upheld our privilege assertion, so it's not 5 clear to me what further there is to discuss. 6 Aside from the documents themselves, you're 7 free to ask Mr. Bacon questions that are 8 consistent with the court's order. 9 MR. KLAYMAN: Do you know for a 10 fact, Ms. Weismann, that those two memoranda 11 were subject to deliberative process claims? 12 MS. WEISMANN: That's my 13 understanding, Mr. Klayman. 14 MR. KLAYMAN: Your understanding or 15 have you actually consulted with the list of 16 documents that you claimed? I understand 17 you're making that statement. 18 MS. WEISMANN: That's correct and 19 I'm not here under oath, Mr. Klayman. I 20 didn't come here prepared to answer your 21 questions. I'm giving you my best 22 understanding today that for those two memos 436 1 we asserted a privilege and the court has 2 upheld our assertion. 3 MR. KLAYMAN: I'm not trying to be 4 difficult. I'm just trying to in fact move 5 the process along because, obviously, if 6 we're getting testimony on a matter that has 7 underlying documents, then that is 8 diametrically opposed and perhaps we can try 9 to work it out. 10 MS. WEISMANN: We haven't asserted 11 any privilege today on the substance of any 12 testimony that he's offered or any of your 13 questions, so I would suggest that perhaps 14 you should proceed with your questions, and 15 if there's a need after that to have the 108 16 conference we'll be happy to consult with 17 you. 18 MR. KLAYMAN: Well, I'm trying to 19 be agreeable to avoid having Mr. Bacon come 20 back again. Maybe we can do this at a break. 21 I'll show you what I'll ask the 22 court reporter to mark as Exhibit 5. These 437 1 are documents that were produced by 2 Mr. Zaring of the Department of Justice on 3 your behalf professionally, Mr. Bacon, on May 4 3, 1999, as well as the entire Department of 5 Defense. 6 (Bacon Deposition Exhibit No. 5 7 was marked for identification.) 8 BY MR. KLAYMAN: 9 Q Showing you Exhibit 5, it's a 10 composite exhibit, and it includes all the 11 documents produced on that date, May 3, 1999, 12 by the Department of Justice on behalf of the 13 Department of Defense. Turn to the third 14 page. The second page is a blank white page, 15 and the document I'm referring to says, 16 Friday, the third, 1998, and reading down 17 there are portions that are blacked out. 18 Below it says, "Tripp's arrest record is 19 likely to become an issue. This is an area 20 that the Secretary of Defense are not well 21 prepared to deal with." Do you see that? 22 A I do. 438 1 Q Do you know who wrote that entry? 2 A I do not. 3 Q Do you have any idea as to whose 4 calendars these are? 5 A I do not. 6 Q Are you aware of that Clifford 7 Bernath kept calendars? 8 A Yes, I am. 9 Q Do you know that Clifford Bernath 10 recorded events leading up to Linda Tripp's 11 Pentagon file information? 12 A Not with any specificity. I know 13 we kept fairly detailed calendars on many 14 things. 15 Q But you know generally? 16 A Yes. 17 Q Does that refresh your recollection 18 as to whether this entry was made by Clifford 19 Bernath? 20 A It does not. I've never seen these 21 before. 22 Q Do you know if anyone else kept 439 1 calendars that mentioned the whole release 2 issue? 3 A I do not. 4 Q When it says Tripp's arrest record 5 is likely to become an issue, this was 6 written on Friday -- 7 A I believe it's Friday, the third 8 month, 13th day, 1998. 9 Q March 13, 1998. That was the date, 10 was it not, Mr. Bacon, that you instructed 11 Mr. Bernath to obtain the information about 12 Linda Tripp from her Pentagon file and 13 release it to Jane Mayer? 14 MR. MURPHY: Objection. 15 THE WITNESS: That is the date that 16 we have discussed at great length a year ago, 17 yes, in which the release was made. 18 BY MR. KLAYMAN: 19 Q Now, do you know what is meant by, 20 "This is an area that Secretary of Defense 21 are not well prepared to deal with"? 22 A I do not. I haven't seen that 440 1 before. 2 Q Did you ever tell Clifford Bernath 3 or anyone else not to tell the Secretary of 4 Defense Cohen about what was happening 5 concerning Linda Tripp's release of Pentagon 6 file information? 7 A I did not. 8 Q Do you know of anyone who did? 9 A I do not. 10 Q In and around that date, March 13, 11 1998, were there any discussions inside the 12 Department of Defense that this is an issue 13 that Secretary Defense Cohen was not well 14 prepared to do deal with? 15 A Not that I'm aware of, no. 16 Q You're not sure? 17 A The Department of Defense has 18 23,000 people in the Pentagon alone, and I 19 can't speak for every one of them, but I was 20 not party to any discussions that would have 21 led to this conclusion. 22 Q Are you aware of anyone else taking 441 1 part in any such discussions? 2 A I'm not. 3 Q Are you aware of anything in 4 writing to that effect? 5 A I am not. 6 Q Was there any discussion that the 7 Secretary of Defense should not know about 8 the release of Linda Tripp's Pentagon file 9 information because it was being ordered by 10 The White House? 11 A There was absolutely not, and it 12 was not ordered by The White House. 13 Q Now, you just referenced two 14 memoranda where you provided information to 15 Secretary Cohen. Correct me if I'm wrong. 16 It's your testimony that you were not 17 providing information about the legality or 18 appropriateness of the release of Tripp's 19 information in those two memoranda? 20 A That is true. 21 Q Was there any time that you 22 discussed the legality or appropriateness of 442 1 the release of Linda Tripp's information from 2 her Pentagon file with Secretary Cohen? 3 A I can only recall two times. 4 Q And when was that? 5 A One was on April 26, I believe, 6 1988 -- 7 Q 1998, you mean? 8 A 1998. Did I say '88? 9 Q Yes. 10 A When -- whatever the date was of 11 the Fox interview, and I believe that was 12 April 26, 1998, and the second was sometime 13 thereafter in May. 14 Q And correct me if I'm wrong. You 15 testified that you discussed this after his 16 appearance on Fox as opposed to before? 17 A That is correct. 18 Q And where did you discuss this with 19 him after his appearance on Fox? 20 A In an elevator. 21 Q In an elevator at the Fox building? 22 A At the Fox building. 443 1 Q And that's at 400 North Capitol 2 Street? 3 A I believe so. 4 Q As you were going down or up the 5 elevator? 6 A Down because it was after the 7 appearance. 8 Q Was anyone in the elevator with 9 you? 10 A I'm sure there was a security 11 person, probably an elevator operator, and 12 there may have been one other person. There 13 could have also been a military assistant 14 there. 15 Q Who would the military assistant 16 be? 17 A I don't recall. 18 Q Who would he likely have been given 19 the fact that you were over at Fox that day? 20 A It was probably a woman, and it was 21 probably either Captain Loewer or Captain 22 Kleman. 444 1 Q Klayman? 2 A Kleman, but I don't -- it could 3 have been somebody else entirely. 4 Q Loewer, what is her rank? 5 A She is a Navy captain. 6 Q And what's her position? 7 A She is now the commander of a ship 8 in the Pacific Ocean. 9 Q When was she transferred to the 10 Pacific Ocean? 11 A I think she was transferred last 12 fall, perhaps. 13 Q Did you order the transfer? 14 A I did not. I don't have authority 15 to order military transfers. 16 Q Did you recommend the transfer? 17 A I did not. 18 Q Did she work in your office? 19 A She did not. 20 Q Why was she there with you and 21 Secretary Cohen? 22 A I don't -- 445 1 Q If she was, why was she there? 2 A Come to think of it, I don't 3 believe she was. 4 Q But if she was, what would have 5 been about her job at the time that would 6 have required her to go to the Fox studios 7 and Secretary Cohen? 8 A Because every time the Secretary 9 travels a military assistant goes with him to 10 handle phone calls or other things that might 11 occur, and so she was then the deputy 12 military assistant, and it is likely that she 13 would have done it or Captain Kleman, who is 14 an Air Force captain, therefore lower rank. 15 It's more likely that she was the one who was 16 there that day, but it could have been 17 somebody else. 18 Q What's Captain Kleman's first name? 19 A Kathryn. 20 Q And what is Captain Loewer's first 21 name? 22 A Deborah. 446 1 Q She's a captain, too? 2 A Well, I'm sure you know from your 3 knowledge of the military that captains in 4 the Navy are the equivalent of colonels in 5 the Air Force or colonels in the Army, 6 whereas captains in the Air Force are lower 7 ranks and they are right above lieutenants, 8 between majors. 9 Q Did both of these people work out 10 of Secretary Cohen's office? 11 A Yes. 12 Q And where is Captain Kleman today? 13 A She remains in Secretary Cohen's 14 office. 15 Q In Washington, D.C., at the 16 Pentagon? 17 A Right. 18 Q And you say there probably was a 19 security guard? 20 A At least one, maybe more. 21 Q A security guard from the Pentagon 22 or from Fox News? 447 1 A From the Pentagon. 2 Q And who would that security guard 3 likely have been? 4 A I have no idea. 5 Q What office would that security 6 guard have come from? 7 A The office that protects the 8 Secretary. 9 Q Was that security guard male or 10 female? 11 A I don't recall. 12 Q Who more frequently than other 13 security guards tended to go to these kinds 14 of appearances? 15 A It's impossible to say. 16 Q Do you remember the race of the 17 person? 18 A I do not. 19 Q Hair color? 20 A No. 21 Q Size? 22 A No. 448 1 Q So you discussed this in the 2 elevator going down, correct? 3 A That is correct. 4 Q Are these captains and security 5 people covered by top secret clearances? 6 A I have no idea what their 7 clearances are. 8 Q Was it your ordinary practice to 9 discuss Pentagon matters in the presence of 10 captains such as these two individuals and 11 security personnel such as you've just 12 described? 13 A Well, I didn't consider this an 14 issue of national security, but I feel free 15 to discuss issues in their presence, yes. 16 Q However, it was an issue involving 17 information from Linda Tripp's Pentagon file? 18 A That's not exactly an accurate 19 description. 20 Q Well, who spoke to who first? Did 21 Mr. Cohen speak to you or did you speak to 22 Mr. Cohen? 449 1 A I spoke to him. 2 Q And what did you say to him? 3 A He had been asked on the program if 4 Clifford Bernath had released the 5 information, or I think he -- you have a copy 6 of it because it was in last year's 7 deposition -- had been asked if Clifford 8 Bernath had -- I think Tony Snow said it was 9 Clifford Bernath who released this, wasn't 10 it, and then Secretary Cohen said yes. 11 Then he was asked if it was 12 illegal. Secretary Cohen then said well, it 13 was certainly inappropriate if not illegal. 14 In the elevator on the way down I said to 15 him, "This is more complex than that. I 16 think it's safe to say we should allow the IG 17 investigation to be complete before 18 commenting on what happened. Cliff didn't do 19 this on his own, and it's unclear right now 20 whether it's going to turn out to be illegal 21 or not." 22 That's all I said. The reason I 450 1 said this was because after every television 2 program like this there's a so-called stake- 3 out, another group of reporters outside, and 4 I thought he would get the question again and 5 he did. 6 Q You said Cliff didn't do this on 7 his own? 8 A That is my recollection of what I 9 said. 10 Q Did you -- 11 A I basically said this is more 12 complex. Cliff didn't do this on his own, 13 and it's unclear whether it's illegal or not, 14 and this is what the IG is looking at. 15 Q And Secretary Cohen then said to 16 you how do you know that? 17 A No. 18 Q Did you tell Secretary Cohen that 19 in fact you had instructed Clifford Bernath 20 to obtain Linda Tripp's Pentagon file 21 information and release it to Jane Mayer. 22 A I did not say that during this 451 1 brief elevator ride, which was, you know, 20 2 or 30 seconds. 3 Q Was there anything that you said 4 from which Secretary Cohen could understand 5 that you were involved in the release of that 6 information? 7 A Not at that time. 8 Q Anyone else? In other words, Cliff 9 didn't do it on his own. Was there any 10 implication that specific persons were 11 involved in addition to Mr. Bernath? 12 A No. 13 Q When you said that this is more 14 complex than you, Mr. Secretary, have just 15 stated with regard to legality, did you tell 16 Secretary Cohen how you had come to that 17 conclusion? 18 A I did not. 19 Q How had you come to that 20 conclusion? 21 A Well, I had always felt and had so 22 said and have said this publicly many times 452 1 as well as in other fora that there's a 2 balancing act between the Freedom of 3 Information Act and the Privacy Act, and 4 whether that balancing act was made 5 appropriately or inappropriately at this 6 particular incident would be determined by 7 the IG and that's still my view. 8 Q Is there any other basis upon which 9 you say this is more complex other than the 10 fact that a decision hadn't been made yet by 11 the IG, meaning the Inspector General? 12 A I think I've run through why I said 13 what I did. 14 Q That's the sole basis? 15 A Yes. 16 Q In other words, no one had told you 17 that you had violated the Privacy Act or not 18 violated the Privacy Act by ordering the 19 release of Linda Tripp's information? 20 A No one in any official capacity has 21 told me that I violated the Privacy Act. 22 That's what the IG is trying to determine, I 453 1 understand. 2 Q Well, was there anyone who told you 3 in an unofficial capacity up to that elevator 4 ride with Secretary Cohen? 5 A Well, there are plenty of people in 6 the press who have written what they think 7 are the facts, but the fact of the matter is 8 that the IG is looking into this and will 9 make a determination. 10 Q Well, but what I'm saying is as of 11 the time of that elevator ride with Secretary 12 Cohen, when you're going down with the 13 secretary guard and either one of these two 14 captains, had anyone unofficially told you 15 other than what you read in the press that 16 your actions were contrary to the Privacy 17 Act? 18 A No one had directly told me, no. 19 Q Who told you indirectly? 20 A Well, I've told you. The Secretary 21 had made the comment about this in March 22 before the National Press Club, which you've 454 1 seen, in which he had said something similar 2 to what he had said on Fox News, that this 3 was certainly inappropriate if not illegal, 4 but he had never said that to me directly, 5 nor had any other official at the department 6 said that to me directly. 7 Q And what date was that appearance 8 on Fox News again? That was April 26, was it 9 not? 10 A I believe it was April 26. 11 Q Now, do you know who Don Perkal is? 12 A He's a lawyer in the defense 13 department. 14 Q Had Mr. Perkal ever said to you or 15 anyone else anything to the effect that 16 Bernath committed a technical error but no 17 criminal intent? We need to look at this 18 closer? Had you heard anything like that up 19 to the elevator ride? 20 MR. MURPHY: Let me just lodge an 21 objection. I don't know in what capacity 22 such a conversation, if it occurred, may have 455 1 occurred, and it implicates certainly a 2 possibility of an attorney-client 3 communication but -- 4 THE WITNESS: The fact of the 5 matter is Mr. Perkal never said that to me. 6 BY MR. KLAYMAN: 7 Q Well, flip two pages in Exhibit 5 8 to the page called 3. Looking down on the 9 Monday the 16th of March, 1998, entry at 1500 10 hours, "Bernath called Don Perkal, briefed 11 him, provided him with a copy of the details 12 memo. Later Don delivered an assessment, 13 Bernath committed a technical error but no 14 criminal intent. We need to look at this 15 closer." 16 Do you see that? 17 A I do see it. 18 Q Does this refresh your recollection 19 as to whether anyone ever discussed this 20 apparent assessment by Don Perkal? 21 A Yes, it refreshes my recollection, 22 and the answer is still no, no one ever 456 1 discussed this with me. 2 Q So it confirms that you never heard 3 anything to this effect from either 4 Mr. Perkal or anyone else up to the date you 5 took the elevator ride with Secretary Cohen 6 on April 26, 1998, at Fox News Sunday? 7 A That is correct. 8 Q Have you heard anything such as 9 I've just read to you from Mr. Perkal's 10 assessment since that date? 11 A I have not. I don't believe I ever 12 talked to Mr. Perkal about this. 13 Q Have you heard that from anyone 14 else? 15 A Not that I recall. 16 Q You don't remember? In other 17 words, you may have heard it but you don't 18 remember right now? 19 A I don't believe I've heard this 20 from anybody else, and that's what I 21 testified five minutes ago, that no one has 22 told me this. 457 1 Q Now, you testified back on May 15, 2 1998, and if you'd like, you can look at your 3 transcript at page 354. 4 A What did I say? 5 MR. MURPHY: Let's look. 6 BY MR. KLAYMAN: 7 Q At line 14, "After the statement 8 was made by Secretary Cohen, statement naming 9 Clifford Bernath, did you ever tell him as 10 his press secretary you better correct that? 11 We shouldn't be blaming just Cliff Bernath? 12 "Answer: Yes, I did. 13 "Question: When did you tell him 14 that? 15 "Answer: I told it to him right 16 afterwards. 17 "What if anything Did Secretary 18 Cohen do that you know of?" 19 Now, you also discussed in that 20 elevator what I've just read to you, correct? 21 A This was the moment when I 22 discussed it. This was the moment after the 458 1 Fox appearance. It was in the elevator that 2 I made this comment to him. 3 Q Well, what I read to you is 4 different than what you testified to this 5 morning, in terms of saying, we shouldn't be 6 blaming just Clifford Bernath, correct? 7 MR. MURPHY: Objection to your 8 characterization. 9 MR. KLAYMAN: I'm giving him an 10 opportunity to explain. 11 THE WITNESS: What I just told you 12 was that in the elevator ride I made two 13 points. The first point was that Cliff 14 Bernath alone wasn't involved in this, that 15 it was more complex than that, and, second, 16 that it wasn't clear that it was illegal. 17 Those are the two points I made in a very 18 brief elevator ride. 19 I also said that, in line with 20 earlier advice I'd given him back in March, 21 that the safest way to deal with questions on 22 this was to say it's under review, I've asked 459 1 the IG to review it, that review is ongoing, 2 and it's inappropriate to talk about it till 3 it's over. 4 He went out, was asked a question 5 about this and I don't have a transcript of 6 what was said then, but my recollection is 7 that what he said essentially when asked 8 about this was look, this is under review. 9 It's better not to talk about it until the IG 10 completes the review and all the facts are 11 in. That's my recollection of what he said 12 to the stakeout after the Fox News 13 appearance. 14 But this followed my only 15 conversation I had with him about the details 16 of this up until this point, which was April 17 26. 18 BY MR. KLAYMAN: 19 Q Who was present at the stakeout? 20 A I don't recall. 21 Q Have you ever testified to this 22 before a grand jury, what you've told us 460 1 today? 2 A I don't believe I was asked about 3 this, but I'd have to go back and review the 4 be grand jury testimony, which you've 5 probably done; it's public. But I don't 6 believe this came up in the course of my 7 grand jury testimony. 8 Q The issue of what you said to 9 Secretary Cohen? 10 A I do not believe this came up. 11 Q And the issue of what Secretary 12 Cohen may have said to you, that never came 13 up? 14 A Well, as I say, I don't recall that 15 he said anything to me at the time. I think 16 he just nodded. 17 Q Did it ever come up later in the 18 grand jury testimony what Cohen may have said 19 to you? 20 A Not that I recall. 21 Q Or what you said to Cohen? 22 A Well, I'd have to go back and 461 1 reread the testimony. 2 Q I won't hold you to it. The 3 testimony speaks for itself, but do you 4 remember anything to that effect? 5 A Well, I just said I don't recall 6 that this was an issue before the grand jury. 7 Q Now, did there come a point in time 8 when you had further discussions with 9 Secretary Cohen about what had occurred? 10 A Yes. 11 Q And when did that happen? 12 A That happened sometime in May. 13 Q And how did that discussion come 14 about? 15 A It came about at my initiative. I 16 would say in late May, but I'm not certain on 17 the date -- about the date and, as I say, it 18 came about at my initiative. 19 Q Did it come about in terms of your 20 initiative by your sending him a memorandum 21 or calling the secretary? 22 A No. I believe I was in his office 462 1 talking about something else and at the end 2 of the conversation talked to him about the 3 Tripp matter. 4 Q Now, between the date of the Fox 5 News Sunday appearance on April 26, 1998, and 6 late May 1998 did Secretary Cohen or anyone 7 from his office ever get back with you and 8 say who was involved in releasing the Tripp 9 information? 10 A Not that I recall. But I had 11 talked about this earlier with Bob Tyrer, his 12 chief of staff, in March, March 17 or 18, I 13 believe, maybe 18th, and I had mentioned it 14 to the Secretary one other time, I think, 15 after the Fox show in just passing in his 16 office and then had a more detailed 17 conversation with him, I believe, in 18 mid-to-late May in his office. 19 Q Well, on March 17, when you had a 20 conversation with Bob Tyrer -- 21 A I believe it was March 18. 22 Q March 18, who initiated that 463 1 conversation? 2 A Well, he called me. I testified to 3 this last year before you. He called me when 4 I was in Montana and we talked about the 5 circumstances under which the information had 6 been released. 7 Q And you told Mr. Tyrer on March 18, 8 1998, that in fact it was not just Clifford 9 Bernath but other people were involved in 10 releasing the Tripp information? 11 A What I believe I told him was the 12 flow of events that had led up to the release 13 of the information, the phone call, all of 14 which I testified to before you. 15 Q And that included your involvement? 16 A Yes, it did. Well, it included 17 exactly what happened, that the calls had 18 come in on how we had dealt with the 19 information and passed it on. 20 Q And you didn't hold any facts back 21 from Mr. Tyrer, did you, on March 18? 22 A Well, I can't recall how detailed 464 1 that conversation was, frankly, and I think I 2 testified at the time that I couldn't recall 3 with complete specificity what was said, but 4 my recollection is that we did have a brief 5 conversation about the circumstances. He was 6 more concerned with what happened from that 7 time forth rather than how we'd gotten into 8 the situation we were in. 9 Q Well, I just want to be clear. You 10 did tell him that you were involved, that you 11 got the call from Mayer, that you ordered 12 Bernath to get the information, and that you 13 instructed Bernath to release it? 14 MR. MURPHY: Object to the form of 15 the question. You can answer. 16 BY MR. KLAYMAN: 17 Q Correct? 18 A Mr. Klayman, I want to be very 19 clear that I don't remember the degree of 20 specificity of this conversation with Bob 21 Tyrer. It is my recollection that I gave him 22 a very brief outline of what had happened, 465 1 but I don't recall how detailed it was. 2 Q Which brief outline included your 3 involvement in the matter? 4 A It certainly included the fact that 5 I had gotten a phone call, that I had relayed 6 that Cliff had taken the request over, and 7 that I was very aware of what was happening. 8 Q And it included that you had 9 instructed Mr. Bernath to get the information 10 concerning Linda Tripp? 11 A Mr. Klayman, we've been through 12 this before. I contend I did not instruct 13 him to get the information. It was a more 14 nuanced transaction than that. It was a 15 situation where he volunteered to take it 16 over. I knew exactly what he was doing. He 17 kept me informed about what he was doing, but 18 it is not my view that I instructed him. 19 Q You knew what he was doing, and I 20 believe you said you did nothing to stop him? 21 A That's right. I would say in 22 answer to a question I'm sure you're going to 466 1 ask me we were jointly responsible for what 2 happened. I don't think there's any doubt 3 about that. We both knew what was happening. 4 Q And that basic information was 5 conveyed to Mr. Tyrer on March 18? 6 A As I say, I believe it was but I 7 don't recall what form. 8 Q Now, when you conveyed that 9 information to Mr. Tyrer, it was your belief 10 you were conveying that information to the 11 Office of the Secretary, correct? 12 A Not necessarily. This has always 13 been an extremely -- I'd have to say low-key 14 item for the Secretary in that this is not an 15 issue that he has spent a lot of time on or 16 that has come up frequently in his dealings 17 with the press, and I don't know what, if 18 anything, Mr. Tyrer told the Secretary about 19 this. 20 Q I didn't ask you that question, but 21 at the time you conveyed it to Mr. Tyrer, who 22 is Secretary Cohen's chief of staff -- 467 1 A Correct, he is his chief of staff. 2 Q It was your understanding that you 3 were communicating with the number two 4 person, other than the Secretary himself, in 5 the office of Secretary of the Defense, 6 correct? 7 A Well, of course, it was my 8 understanding I was communicating with him. 9 I was talking to him on the phone. How could 10 I not understand that? 11 Q Now, in the course of your duties 12 and responsibilities at the Pentagon as press 13 secretary, from time to time you do relay 14 information to Mr. Tyrer with the purpose of 15 communicating with the Secretary of Defense, 16 correct? 17 A I do. 18 Q And that's common practice, 19 correct? 20 A That is common practice. 21 Q So you had reason to believe that 22 Mr. Tyrer would then convey the information 468 1 that you gave to him on March 18, 1998, to 2 Secretary of Defense Cohen? 3 A Well, I didn't think about it in 4 those terms one way or another because this 5 part of the phone conversation was minor 6 compared to other parts of the phone 7 conversation. This wasn't really what he was 8 calling about. He was calling about 9 something else. 10 Q You did not instruct Mr. Tyrer to 11 withhold this information on March 18, 1998, 12 from Secretary Cohen? 13 A Absolutely not. 14 Q You'd do anything like that, would 15 you? 16 A I have never instructed him to 17 withhold information from the Secretary. 18 Q And you've never instructed anybody 19 at the Pentagon to withhold information from 20 Secretary of Defense Cohen, right? 21 A That is correct. 22 Q Now, based on your knowledge of 469 1 what the chief of staff does and being chief 2 of staff to the Secretary of Defense, it is 3 his duty and responsibility, is it not, to 4 keep the Secretary of Defense fully informed? 5 A I think that I won't comment on his 6 duties. 7 Q That's your understanding, is it 8 not? 9 A He does what the Secretary wants 10 him to do. 11 Q What was your understanding on 12 March 18, 1998, of the duties and 13 responsibilities of the chief of staff to the 14 Secretary of Defense? 15 A That he is his principal staff 16 person who oversees his office and his 17 concerns. 18 Q That he is in effect the Secretary 19 of Defense's right-hand man? 20 A Yes. 21 Q That he is in effect the Secretary 22 of Defense's alter ego? 470 1 MR. MURPHY: Objection. 2 THE WITNESS: I can't speculate 3 about the psychological terms. 4 BY MR. KLAYMAN: 5 Q That when you can't get ahold of a 6 the Secretary of Defense the next best person 7 to be able to communicate with the Secretary 8 of Defense is the chief of staff? 9 A These are very theoretical 10 questions. The point of the matter is that 11 Bob Tyrer, the chief of staff, called me 12 about a particular issue. We dealt with that 13 issue. This was the part of the conversation 14 that dealt with the exact tick-tock of events 15 was a very small part of the conversation, 16 but it did occur in some way. 17 Q The question was that it is your 18 practice, since you've been press secretary, 19 that when you can't get ahold of the 20 Secretary himself, that the next best person 21 to communicate with is the chief of staff? 22 A It depends what the issue is. I do 471 1 frequently talk with the chief of staff, yes. 2 Q Now, you say you had a brief 3 conversation with Secretary Cohen somewhere 4 in between the time of March 18, when you had 5 the conversation with Mr. Tyrer, and your 6 later conversation in Secretary Cohen's 7 office at the end of May, correct? 8 A Right. 9 Q And where did that conversation 10 occur? 11 A Also in his office. I mean, I had 12 one conversation with him in the elevator, 13 and I had another very brief conversation 14 with him in, I would say, early May and then 15 a more substantive conversation with him in 16 mid-to-late May. 17 Q And where did that shorter 18 conversation occur in early May? 19 A In his office. 20 Q And how did it arise? 21 A At the end of the conversation 22 about base closings I mentioned that clearly 472 1 I had acted too quickly in the Linda Tripp 2 issue. I just said that I had done something 3 that if I thought about it longer I might not 4 have done. 5 Q And did he initiate that 6 conversation about Linda Tripp? 7 A I initiated it. 8 Q And when you say you had done 9 something, you told the Secretary exactly 10 what you had done? 11 A Yeah. I just said that the release 12 of information by this time it had become a 13 big news item that was -- I wouldn't say a 14 big news item but it had become a news item, 15 and I just said looking back on it I wouldn't 16 have done it that way. 17 Q You assumed when you told him that 18 you wouldn't have done it that way that he 19 had already been informed by Mr. Tyrer as to 20 what you had done? 21 A I didn't assume that. 22 Q So you told Secretary Cohen exactly 473 1 what you had done? 2 A I can't recall in great detail what 3 I did, but, I mean, he certainly knew of my 4 involvement at that time -- well, I don't 5 know whether he did or not. This was 6 probably early May, and I think basically 7 what I said to him was, you know, looking 8 back on it we shouldn't have done this or I 9 wish I'd thought about it more, something 10 like that. 11 Q So when you said that to him, you 12 assumed that Mr. Tyrer had communicated your 13 earlier conversation? 14 A No, I didn't assume that. 15 Q When you said that to him in early 16 May you were aware that Clifford Bernath had 17 already been deposed in this lawsuit and in 18 fact had at that point already identified you 19 as participating in the release of the 20 information concerning Linda Tripp? 21 A Certainly there had been stories in 22 the news in April, I believe. I can't 474 1 remember when Bernath was deposed. 2 Q So it was your understanding that 3 Secretary Cohen already had the basic facts 4 that you were involved in the release of the 5 Tripp information? 6 A I guess I did assume that, yeah. 7 Q And in fact there was discussion at 8 the Pentagon up to the point you met with him 9 in his office briefly in early May that you 10 were involved? It was well known at the 11 Pentagon? 12 A Well, I can't speak for that. 13 People weren't actually coming up to me and 14 saying we know you were involved in this. 15 Q Did anyone ever say to you, Ken, 16 something to the effect we know you're 17 involved, we like you anyway, anything like 18 that? 19 A Not that I recall. 20 Q People didn't discuss it with you? 21 They just clammed up? 22 A Few people tell me they like me. 475 1 I've gotten used to it. 2 Q I'm talking more about the Tripp 3 information. 4 A Nobody has spoken to me that way 5 about it, no. 6 Q Did anyone come up to you and talk 7 to you about it? 8 A No. 9 Q Now, did you say anything else to 10 Secretary Cohen as you mentioned this at the 11 end of your conversation in early May? 12 A No. It was very brief. 13 Q And what did he say in return? 14 A I don't recall he said anything. 15 Q Did he gesture in any way? 16 A No, not that I recall. 17 Q He looked upset? 18 A No. 19 Q Was he listening to you? 20 A Yeah, I think so. We were just 21 walking through his office outer door. We 22 were walking in one door of his office and 476 1 out the other door, and we were having a 2 conversation but, as I said, another topic, 3 and he made some comment about something that 4 somebody had done that didn't make sense to 5 him, and I said "Well, you know, sometimes, 6 you know, people do things that don't make 7 sense," and I gave as an example the whole 8 Tripp thing. That was the substance of the 9 conversation. 10 Q Did he put his hand on your 11 shoulder? 12 A He did not. 13 Q Did he try to console you in any 14 way? 15 A He did not. 16 Q He showed no emotion at all? 17 A That's my recollection, right. 18 Q Is that his normal demeanor, to 19 show no emotion, or has he sometimes shown 20 emotion? 21 MR. MURPHY: Objection, I think 22 we're getting far afield. 477 1 MR. KLAYMAN: It's one question. I 2 think it's legitimate in this context. 3 THE WITNESS: That's his normal 4 demeanor. 5 BY MR. KLAYMAN: 6 Q Now, during that conversation in 7 early May did you tell him we better correct 8 this misimpression about Bernath? 9 A No. 10 Q Did you ever tell him that? 11 A We ran through the conversation 12 that I had with him in the elevator on April 13 26. I mean, you and I have already done 14 that. That's when I spoke to him about that, 15 and as I said it was very quick. It was 16 glancing. It was during a very brief 17 elevator ride from the fourth floor to the 18 third floor. You know the Fox News 19 situation. You've been there more than I 20 have. You can probably tell me what floor 21 they're on. I don't recall, frankly. 22 Q After you told him that you better 478 1 correct this, which you did in the elevator, 2 correct? 3 A Mr. Klayman, I want to be very 4 clear about what I said. I didn't say you 5 better correct this. I said it's more 6 complex than you've stated, Bernath wasn't 7 the only person involved, that it's unclear 8 whether it was illegal. This is what the IG 9 is looking into. The safest answer is the IG 10 is looking into this. We ought to wait till 11 the report's completed. That's basically 12 what I said to him. 13 Q Let me refer you back to your 14 testimony. This is May 15, 1998, again line 15 14: "After the statement was made by 16 Secretary Cohen, did you ever tell him, as 17 his press secretary, you better correct that; 18 We shouldn't be blaming just Clifford 19 Bernath? 20 "Answer: Yes, I did. 21 "Question: When did you tell him 22 that? 479 1 "Answer: I told it to him right 2 afterwards." 3 Right? 4 A Right. 5 Q So when was it that you told him 6 unequivocally that you better correct this? 7 A I told him on the elevator on the 8 way down. 9 Q At any time did Secretary Cohen or 10 any of his representatives ever get back to 11 you to establish a way to correct it? 12 A Well, I think in the Secretary's 13 mind by making the statement he did at the 14 stakeout that he was dealing with the issue, 15 but I have to tell you that I am not aware -- 16 I had not briefed the Secretary fully on the 17 details of this before April 26, and I did 18 not consider what I said to him in the 19 elevator a full brief on April 26. 20 Q My question, though, is what, if 21 anything, did Secretary Cohen or his 22 representatives do after you told him to 480 1 correct it other than making the statement 2 that he made at the stakeout in front of Fox 3 News on April 26, 1998? 4 A That is the statement that he made. 5 That was the correction. 6 Q That's it? 7 A Right. 8 Q And you don't know what was in the 9 Secretary's mind when he made that statement, 10 correct? 11 A I do not. 12 Q And you've never talked to him what 13 was in his mind? 14 A No. 15 Q And just for clarity purposes what 16 was that statement? 17 A I've told you that I don't recall 18 the statement specifically, but my 19 recollection is he said essentially we 20 shouldn't rush to judgment. The details are 21 being looked into by the IG. It will come 22 out when the IG comes out. He did not, 481 1 though, specifically exonerate Mr. Bernath at 2 that time. He did not say Mr. Bernath was 3 not the only person who released this 4 information. 5 Q And he's never said that, correct? 6 A That to the best of my knowledge is 7 correct. 8 Q And Mr. Tyrer's never said that 9 publicly, correct? 10 A Mr. Tyrer generally doesn't talk in 11 public. 12 Q And you don't know of anyone in the 13 Secretary's office who has said that 14 publicly? 15 A No, I do not. 16 Q And in fact Secretary Cohen has 17 never blamed you publicly, correct? 18 A I believe that's correct. 19 Q In fact, he's never implicated you 20 in any way in the release of Tripp's 21 information publicly? 22 A Not that I've seen. 482 1 Q And no one from his office has? 2 A Not that I'm aware of. They may 3 feel they don't need to since it's been 4 widely published. 5 Q But you don't know that. That's 6 your supposition, correct? 7 A That is -- I know it's been widely 8 published. That's not a supposition. 9 Q I'm saying you don't know what they 10 are thinking? 11 A That is correct. 12 Q Now, you had a discussion at the 13 end of May, and it arose in the Secretary's 14 office, correct? 15 A Right. 16 Q And that was a longer conversation, 17 correct? 18 A Yes. 19 Q Who initiated it? 20 A I initiated it. 21 Q And what did you say? 22 A I basically walked through what had 483 1 happened, talked about how I'd gotten the 2 call on Thursday night and how I responded to 3 it, and said that this was something in which 4 I was -- in which Cliff and I had done 5 together and basically it was a short 6 conversation. It was relatively brief. 7 At the end of the conversation and 8 the context of this conversation I believe 9 that triggered the conversation was that it 10 had come up in response to some press 11 reports, that I had brought it up in response 12 to some press reports, and I had said to him 13 at the end of the conversation, "My job is to 14 solve problems for you, not to create 15 problems. If this becomes a politically hot 16 issue for you, I'm perfectly willing to 17 resign or handle this in any way you think 18 would be appropriate." 19 Q Was there anything else he said 20 during that conversation? 21 A Anything else I said, no. 22 Q And what did the Secretary say in 484 1 response? 2 A He said thank you. That was my 3 recollection of what he said. 4 Q Thank you for resigning? 5 A No. No, he just said thank you. 6 Q That's all he said, thank you? 7 A Yeah. He didn't say much. 8 Q Well, is that all he said, two 9 words, "Thank you"? 10 A That's my belief what he said. 11 That's my understanding. 12 Q Did he show any emotion? 13 A Not that I recall. 14 Q Do you know whether Secretary Cohen 15 has ever discussed this whole incident with 16 The White House? 17 A No, I do not. 18 Q You don't know one way or the 19 other? 20 A No. 21 Q Have you ever had any other 22 discussions with Secretary Cohen about this 485 1 whole incident of releasing Tripp's 2 information other than what you testified to 3 today? 4 A Well, what I testified to last May. 5 Q So there's nothing in addition to 6 what you've already testified to up to this 7 point in time? 8 A That is correct. 9 Q Have you ever had any other 10 conversations with Bob Tyrer, his chief of 11 staff? 12 A I have had -- I've not -- yeah, I 13 guess I probably had some in May where I 14 basically told him at about the same time I 15 talked to the Secretary in mid-to-late May, 16 told him the same thing in the same detail 17 that I told the Secretary. 18 Q Did you offer to resign to Tyrer as 19 well? 20 A I did. 21 Q Has anyone at the Department of 22 Defense ever suggested that you should resign 486 1 other than yourself? 2 A Not that I'm aware of, no. 3 Q Has anyone throughout the Clinton 4 Administration asked you to resign? 5 A Not that I'm aware of. 6 Q Or even suggested you should 7 resign? 8 A Not that I'm aware of. 9 Q Have you ever been reprimanded by 10 Secretary of Defense about this whole Tripp 11 incident? 12 A Not that I recall. Certainly Tyrer 13 made it very clear to me that he was upset 14 and by implication the Secretary was upset 15 about how it had been handled, but I don't 16 believe the Secretary himself has reprimanded 17 me about it. 18 Q But Tyrer never said the Secretary 19 is upset. You just implied that? 20 A Well, I can't recall exactly what 21 Tyrer said, but certainly the message was the 22 Secretary was upset. 487 1 Q Did he ever use the words, "The 2 Secretary is upset"? I take it not? 3 A I just can't recall. 4 Q So you don't know one way or the 5 other? 6 A No. 7 Q Did you ever have discussions with 8 Secretary Cohen about this whole issue of 9 reprimand? 10 A No. 11 MR. KLAYMAN: I'll show you what 12 I'll ask the court reporter to mark. Maybe I 13 can show it to you. Let's just take a 14 five-minute break. 15 THE VIDEOGRAPHER: Going off video 16 record at 11:22. 17 (Recess) 18 THE VIDEOGRAPHER: We're back on 19 video record at 11:32. 20 MR. KLAYMAN: I show you what I'll 21 ask the court reporter to mark as Exhibit 6. 22 (Bacon Deposition Exhibit No. 6 488 1 was marked for identification.) 2 BY MR. KLAYMAN: 3 Q And I'll turn your attention to a 4 document about a quarter of the way in. It's 5 a Department of Defense news briefing of 6 Thursday, May 21, 1998, 1:30 p.m. 7 Mr. Kenneth H. Bacon -- 8 A I'm sorry. What page is this? 9 Q Mr. Fitton can help you find it. 10 It's Bates number 11, the stamped numbers at 11 the bottom. 12 MR. FITTON: It's a transcript of 13 your briefing. 14 BY MR. KLAYMAN: 15 Q Do you see that document? 16 A Yes. 17 Q Looking at the bottom of the page, 18 this is the question that you're asked during 19 the Department of Defense news briefing, 20 "Have you been reprimanded by the secretary 21 about this at all," referring to the Tripp 22 incident? 489 1 "Answer: I've had extensive 2 discussions with the Secretary about this, 3 and I think I'll just wait for the IG 4 investigation to finish." 5 So you're responding there, 6 Mr. Bacon, that you did have extensive 7 discussions with Secretary of Defense Cohen 8 about whether you would be reprimanded, 9 correct? 10 MR. MURPHY: Objection, but you can 11 answer. 12 THE WITNESS: Well, first of all, I 13 think you've misinterpreted, if I may say, 14 what the meaning of this response is. I was 15 asked had I been reprimanded, and I 16 specifically did not answer the question. I 17 regard this answer as saying that I've had 18 discussions with the Secretary about this 19 topic and that I'll wait for the IG 20 investigation to finish. That's what I meant 21 by that answer. 22 BY MR. KLAYMAN: 490 1 Q So you were giving an evasive 2 response? 3 A Yes, that is true. 4 Q You wanted to give them the 5 impression that you had discussed being 6 reprimanded and that you had had extensive 7 discussions with the Secretary? 8 A No, that's exactly not what I 9 wanted to do. What I wanted to do was say 10 that the question of reprimand will follow 11 logically from the IG report and that it's 12 important to wait for the IG finishes its 13 work before getting into issues like that, 14 and then the Secretary and everybody else 15 will have a full set of facts that they can 16 review and decide how to respond to. 17 Q Now, this morning and before when 18 you testified on May 15 you certainly have 19 testified -- correct me if I'm wrong -- that 20 your discussions with Secretary Cohen were 21 rather brief about the Tripp incident? 22 A They were extensive in that I told 491 1 him, the facts. 2 Q So you can have brief conversations 3 yet be extensive at the same time? That's 4 your understanding? 5 A I think a brief conversation that 6 gives the necessary facts are extensive 7 enough. 8 Q And when you said extensive 9 discussions you were including the 10 discussions with Mr. Tyrer as well, correct? 11 A I talked to Tyrer about the 12 Secretary. I mean, by this time I'd spoken 13 to the Secretary twice in his office about 14 this and I've given you both those times. 15 Q Was your conversation with 16 Mr. Tyrer extensive? 17 A Well, I've had -- I can't remember 18 the number of conversations that I've had 19 with Mr. Tyrer or when I've had the 20 conversations, but I first -- I certainly had 21 the first one on March 18, and I had the 22 first conversation with the Secretary on 492 1 March 13 about this, when I was preparing him 2 for a weekend program with CNN, and then I 3 had the March 18 conversation with Tyrer, and 4 I can't remember the other conversations that 5 I had with Tyrer. 6 Q Well, certainly your conversations 7 with Mr. Tyrer, chief of staff, were as 8 extensive as your conversations with 9 Secretary Cohen, correct? 10 A Yes, probably more extensive. 11 Q During your March 18, 1998, 12 conversation with Mr. Bob Tyrer, did you tell 13 Mr. Tyrer that you had asked Clifford Bernath 14 to get the Tripp information? 15 A I believe so, but, as I said, I 16 cannot recall with great specificity the 17 details of that conversation. 18 Q What were your exact words to 19 Secretary Cohen in the elevator on April 26, 20 1998, regarding your involvement? 21 MR. MURPHY: Objection. I think 22 it's been asked and answered. 493 1 THE WITNESS: I think I've told you 2 in as much detail as I can recall. 3 BY MR. KLAYMAN: 4 Q Question number six that Judge 5 Lamberth has ordered you to answer is did 6 Bacon, that's you, tell Secretary Cohen the 7 circumstances that led to the release of 8 Tripp's background security information? 9 A That's what I believe I did in 10 mid-May in his office, yes. 11 Q Mid-to-late May? 12 A Mid-to-late May. 13 Q And previously you had told 14 Mr. Tyrer? 15 A Yes. 16 Q On March 18, 1998? 17 A Or later. I mean, as I said -- let 18 me repeat again. I don't remember with great 19 specificity what I told him exactly about 20 this on March 18 because the topic of 21 conversation was not primarily what happened 22 on March 13. It was something else. 494 1 Q Question number seven, did Bacon 2 discuss, did you discuss with Secretary Cohen 3 whether you had instructed Mr. Bernath to 4 release the Tripp information? If there's 5 any additional information that you haven't 6 provided that doesn't otherwise answer that 7 question -- 8 A Well, it has always been my 9 contention that I did not instruct Cliff 10 Bernath to release the information. 11 Q Since when has that been your 12 contention? 13 A It has always been my contention 14 that I never said to Cliff release this 15 information. What I did was have a series of 16 discussions with Cliff Bernath on Friday, 17 March 13, that led to the release of the 18 information, and we both agreed to release 19 the information. 20 Q So what you're saying is you 21 specifically didn't do it on your own; you 22 did it in conjunction with cliff Bernath? 495 1 You both decided? 2 A Yes. 3 Q So you're not solely responsible; 4 you have someone who's responsible with you? 5 A We did this together. 6 Q And do you take responsibility for 7 having done it with Mr. Bernath? 8 A Yes, as his boss I take 9 responsibility for having done it with 10 Mr. Bernath. As I said, I was aware of what 11 he was doing and did nothing to stop it. 12 Q Question number one, what answer 13 did you tell Secretary of Defense William 14 Cohen to give in an interview on CNN 15 regarding the trip release? 16 A I advised him to say -- now 17 remember this was on March 13. I advised him 18 to say that the Department of Defense has 19 established procedures for investigating such 20 matters and we will follow those procedures. 21 Q Did Secretary of Defense Cohen ask 22 you what those procedures were? 496 1 A No. 2 Q Did anyone follow up and ask you 3 what those procedures were? 4 A Well, the procedures in fact were 5 followed, so nobody asked me what the 6 procedures were, but the procedures in fact 7 were followed. 8 Q What did Secretary of Defense Cohen 9 say in response? 10 A Not much. 11 Q What did he say that wasn't much? 12 A I don't believe he said anything in 13 response. This was -- I went up to his 14 office to discuss with him three or four 15 primary issues that I thought would come up 16 on a television interview with Wolf Blitzer 17 on March 15, 1998. The primary issue was 18 Iraq, which was the issue of the day. Other 19 issues involved Kosovo and -- but mainly it 20 was Iraq, and at the very end of the -- as I 21 recall, at the end of the conversation I 22 mentioned that The New Yorker was going to 497 1 have a piece and that if it came up this is 2 the response I suggested, and he basically 3 didn't respond. 4 MR. KLAYMAN: I'm going to show you 5 what I'll ask the court reporter to mark as 6 Exhibit 7. 7 (Bacon Deposition Exhibit No. 7 8 was marked for identification.) 9 BY MR. KLAYMAN: 10 Q The pages aren't numbered. Exhibit 11 7 is the transcript of March 15, 1998, Sunday 12 edition of CNN Late Edition with Wolf 13 Blitzer, 12:00 a.m. Eastern Time. Turning to 14 the fifth page in, do you see where it says, 15 "Blitzer: OK"? It's the fifth page in. 16 A Yeah. 17 Q "Blitzer: OK. I have to switch 18 gears completely. We only have a few seconds 19 left. Linda Tripp, an employee of yours at 20 the Pentagon, she told USA Today this past 21 week because of her reassignment -- she's 22 gotten a new job -- she says, 'I view this as 498 1 a demotion also a step towards my ultimate 2 termination. Politics aside this sends a 3 message to any government employee, political 4 or career, who would dare disclose evidence 5 of a possible crime allegedly perpetrated by 6 their employer," Linda Tripp, of course, 7 being the woman who secretly recorded 8 conversations with Monica Lewinsky, the 9 former White House intern. Was she demoted?" 10 And Secretary Cohen responds, 11 "She's not demoted. In fact, she has the 12 same paying job she had before. She and her 13 attorneys requested that she have the 14 opportunity to work at home in terms of flex 15 work. She is one of three who currently 16 enjoy that status today and one of some 10 or 17 12 who have had that experience in the past. 18 She has been able to work at home 19 at her request" -- 20 A Sir, I can read this. 21 Q Well, we're on a video transcript. 22 I'd like to read it. I'm almost done. 499 1 "Because of her involvement with 2 the independent counsel, the time that must 3 be spent there, the fact it will be a 4 distraction for her at work, and so the level 5 of activity she's doing today is consistent 6 with her ability to carry that out. And so 7 it's not a demotion. She's paid the same 8 amount of money and thinking of the 9 circumstances should be quite satisfied with 10 that. 11 "Blitzer: Do you know her 12 personally? 13 "I have never met her." 14 Up to that point in time, had you 15 discussed any of those basic facts with 16 Secretary Cohen, what he just related? 17 MS. WEISMANN: I'm going to object 18 to the question and instruct him not to 19 answer. It's beyond the scope of what the 20 court has authorized in discovery here. 21 MR. KLAYMAN: Well, number one says 22 what answer did Bacon tell Secretary of 500 1 Defense William Cohen to give on CNN 2 regarding the Tripp release. This is 3 certainly information that concerns that -- 4 THE WITNESS: This doesn't directly 5 concern the New Yorker story that's the issue 6 here. This is a different issue entirely. 7 BY MR. KLAYMAN: 8 Q In all due respect, the New Yorker 9 story did deal with Ms. Tripp's background. 10 MS. WEISMANN: Mr. Klayman, this 11 issue is clearly addressed in the court's 12 numerous orders and my objection stands. 13 MR. KLAYMAN: All right, we'll 14 certify it. 15 BY MR. KLAYMAN: 16 Q Then Mr. Blitzer asked Mr. Cohen as 17 follows: "You've never met her. While she's 18 been at the defense department, you've been 19 at the defense department. There are reports 20 this weekend in U.S. News and World Report 21 and the New Yorker magazine that when she was 22 19 years old she was arrested and it's 501 1 unclear whatever happened to that, but the 2 question is on her security application, when 3 she applied for a national security 4 clearances, did she make available that 5 information? Do you know? Did you know 6 about this incident before the reports of 7 this weekend?" 8 Secretary Cohen answers, "The 9 answer is no, I was not aware of it. This is 10 an allegation now contained in the New Yorker 11 magazine. I'm sure that it will be the 12 subject of some inquiry. If it's true, it's 13 a very serious matter." 14 Did you convey that response to 15 Secretary Cohen? 16 A Yes. I said that it should be 17 investigated, and if it's true it is a 18 serious matter. 19 Q Now, when you raised this with him, 20 what date was that? This was May -- 21 A March 13. 22 Q March 13. Now, where did you meet 502 1 with him or have a conversation with him such 2 that you were able to give him that 3 information? 4 A I met with him in his office. 5 Q And what date was that? 6 A March 13. 7 Q And you told him specifically what 8 had occurred with regard to the release of 9 Tripp's information on that date, correct? 10 A I did not. 11 Q Where did he get the response, "If 12 it's true, it's a very serious matter"? 13 A I told him that the New Yorker was 14 expected to carry an article asserting that 15 Linda Tripp had been arrested and had not 16 indicated this on a form, and I said if he's 17 asked about that I said he could well be 18 asked about it because it will be out over 19 the weekend, and if he's asked about it I 20 recommend he say if that's true it's a 21 serious matter; the department has 22 established procedures for looking into that 503 1 and we will follow those procedures. 2 Q What was the basis of your telling 3 Secretary Cohen as early as March 13 that it 4 was a serious matter? 5 A My basis was that nothing but my 6 own hunch that it would be a serious matter. 7 I mean, I didn't talk -- as I've testified 8 before, I talked to no lawyers about this. I 9 just said this should be the answer to give. 10 Q But on that date on March 13 you 11 already knew how Linda Tripp had responded on 12 her security form, correct? 13 A That is correct. 14 Q So you were able to form your own 15 opinion as to whether it was a serious matter 16 on that date? 17 A That is correct. 18 Q And when you told the Secretary to 19 say this is a serious matter if true you gave 20 him information that in fact you had 21 confirmed that she had not been candid on her 22 security form? 504 1 A That is true, but I didn't tell him 2 that. All I said was that the story was 3 going to appear and this was the answer he 4 should give. 5 Q Did Mr. Cohen ask you how do you 6 know that? 7 A He did not. 8 Q Did he say anything to you to the 9 effect that how can I say this if I don't 10 know if it's serious or not? 11 A He did not. 12 Q Have you known Secretary Cohen to 13 go out and just parrot what you tell him to 14 say on a routine basis since you've been 15 press secretary? 16 A Well, I don't think that he does 17 parrot what I tell him to say on a routine 18 basis, and I think that to him this answer 19 made sense because it basically said we will 20 look into this. He didn't pass judgment on 21 it one way or another. He said we'll look 22 into it, and that's in fact what the 505 1 department did. 2 Q Was there any discussion with 3 Secretary Cohen, you and he, that making this 4 kind of a statement could harm the reputation 5 of Linda Tripp? 6 A There was not. 7 Q Did Mr. Cohen express any 8 reservation about saying this when he 9 appeared on CNN? 10 A Well, let's look at what he said. 11 He said if true. He didn't say it was true. 12 He said if true, it's a serious matter and 13 that the administration would -- that the 14 department would look into it. 15 Q Well, based on your experience in 16 journalism, and you've had considerable -- we 17 went over it -- is it proper journalistic 18 ethics to make statements like that when the 19 person who's making the statement doesn't 20 have the underlying facts? 21 MR. MURPHY: Objection. It's 22 beyond the scope of the questions that Judge 506 1 Lamberth has required Mr. Bacon to answer. 2 BY MR. KLAYMAN: 3 Q Well, what I'm trying to get at was 4 was there any inkling, any body movement, 5 statement, gesture, on Secretary Cohen's part 6 when you told him what to say, if it's true, 7 it's a very serious matter, that reflected 8 any reservation on his part in saying that? 9 A No, but I think that, because 10 you've read the entire transcript of this 11 Wolf Blitzer interview, you fully understand 12 the context of this issue, and it's important 13 to understand that because the main point of 14 the interview was not Linda Tripp. It was 15 basically Iraq, and there were other issues 16 that were covered. 17 Gender-integrated training was a 18 hot issue at the time. There were a number 19 of issues that were very much in the news. 20 This is something that we thought might come 21 up and might well not come up, whereas we 22 knew that Iraq and gender-integrated training 507 1 and others would come up. 2 So this was not the top of his list 3 of concerns at the time I talked to him about 4 it, which is one of the reasons I didn't give 5 him a lot of detail. Basically, my sense was 6 that what he wanted was an answer if the 7 question came up, and that's what I gave him. 8 Q During the time that you've worked 9 with Secretary Cohen as press secretary, have 10 you ever given him a response that he could 11 make on a television show where he's rejected 12 your recommendation on how to respond? 13 A Yes. 14 Q And that happens fairly frequently, 15 correct? 16 A It happens from time to time. 17 Q And during the course of your 18 experience in working with Secretary Cohen 19 when you've given him a response that he can 20 make on a television show has he ever asked 21 you for the underlying facts which gave rise 22 to your suggested response? 508 1 A Sometimes he does but not always. 2 Q Now, from the time that you were 3 called by Jane Mayer up to the point of this 4 interview on CNN, you'd had conversations 5 with The White House on a variety of matters, 6 hadn't you? 7 A As I testified a year ago, I 8 typically talk to The White House every day 9 in a conference call about foreign policy and 10 defense matters. 11 Q You had talked to The White House 12 about the Linda Tripp release, had you not? 13 A I had not. 14 Q You had talked about Linda Tripp 15 between that time period, the date of the 16 call from Jane Mayer and the appearance on 17 CNN? 18 A I don't believe I had. 19 Q Are you saying that you never 20 engaged in any conversation or communication 21 of any kind where Linda Tripp's name came up 22 during that period? 509 1 A The -- it never came up on one of 2 the noon conference calls. It is conceivable 3 but I don't recall this -- I don't recall 4 doing it, but it's conceivable that I did on 5 Friday, March 13, call P. J. Crowley at the 6 National Security Council and inform him that 7 Cohen was going to be on the Wolf Blitzer 8 show on Sunday, tell him what we thought the 9 topics would be, and in the course of that 10 mention that he was prepared for a Tripp 11 question. I would have done that because I 12 typically do that before the Secretary 13 appears on a Sunday television show, inform 14 The White House that it's happening and what 15 he think he'll discuss. 16 Q Did you tell Mr. Crowley what that 17 trick question would be? 18 MR. MURPHY: Tripp question. 19 BY MR. KLAYMAN: 20 Q Oh, I thought you said "trick 21 question." 22 A I said "Tripp" and I'm not sure 510 1 that I had this conversation. I'm saying I 2 could have well have had this conversation. 3 I have no mention of it in my notes, and I 4 can't rule out that I had it because it would 5 have been typical to have had it, but I don't 6 have any specific recollection of having had 7 that conversation. 8 Q Was anyone present during that 9 conversation from your end? Was it a phone 10 conversation? 11 A It was a phone conversation. 12 Q Your end of the phone? 13 A No. 14 Q Was anyone present on the other end 15 of the phone with Mr. Crowley? 16 A Colonel Crowley, no. 17 Q Was it done by speakerphone? 18 A No. 19 Q If you had that conversation you 20 would have told him the underlying facts in 21 terms of Linda Tripp's declaration that she 22 hadn't been arrested on the Pentagon form, 511 1 correct? 2 A I probably would not. 3 Q Why not? 4 A Unless he'd asked. 5 Q Did he ask? 6 A No. Well, I don't know whether I 7 had the conversation. I have no recollection 8 that he asked. 9 Q So he might have asked? You just 10 don't remember? 11 A Sir, I don't remember whether I had 12 the conversation. I'm just trying to lay out 13 for you what would have been a typical -- I 14 could have had this conversation, or I might 15 not have had the conversation. I have no 16 recollection of whether I did or not. 17 Q But what you're saying is in the 18 ordinary course of your duties, 19 responsibilities, you would have advised 20 someone at The White House such as Colonel 21 Crowley that that kind of question could come 22 up? 512 1 A I would have provided information 2 about any news that we expected to make or 3 deal with over the weekend, and in that 4 context I would have brought up the Tripp, 5 T-r-i-p-p, issue. 6 Q And you would have done that 7 because it is normal operating procedure for 8 your office to advise The White House when 9 some type of question could come up that 10 concerns The White House? 11 A I would have advised them solely so 12 they wouldn't be blind-sided by something 13 that had come up. 14 Q And that's your normal operating 15 procedure, correct? 16 A Right, and this is, if I made this 17 call, it is the only time I ever recall 18 discussing Linda Tripp with The White House. 19 Q Do you know whether anyone else 20 ever discussed Linda Tripp with The White 21 House after the period that Jane Mayer first 22 called you and asked for the information 513 1 about her? 2 A That's a very sweeping question. 3 MS. COVEY: Mr. Klayman, I would 4 object. This is going beyond the scope of 5 what Judge Lamberth laid out as the 6 permissible scope. 7 MS. WEISMANN: I join the 8 objection. 9 MR. KLAYMAN: Judge Lamberth 10 specifically stated in his order that the 11 primary issue is the contact, if any, that 12 the Pentagon had with The White House over 13 Linda Tripp? 14 MS. COVEY: Mr. Klayman, Judge 15 Lamberth laid out the specific questions that 16 were encompassed and what is permissible. 17 MR. KLAYMAN: And he allowed for 18 follow-up questions, which is what this is. 19 We've just established that there was 20 communication with The White House. This is 21 a follow-up question. 22 THE WITNESS: Sir, we did not 514 1 establish there was communication with The 2 White House on this. 3 BY MR. KLAYMAN: 4 Q Well, we haven't established that 5 there wasn't? 6 A That's entirely different. 7 Q I don't want to get into a debate 8 with you on -- 9 A You will concede the point -- 10 MR. KLAYMAN: Mr. Murphy, ask 11 Mr. Bacon it's probably in his best interest 12 not to -- 13 MS. COVEY: Mr. Klayman, I've 14 allowed certain questions that were not 15 authorized by Judge Lamberth, and I'm posing 16 an objection that we've gone far enough. 17 MR. KLAYMAN: Who are you 18 representing, Ms. Covey? 19 MS. COVEY: As I said in the 20 beginning, I'm representing EOP and the FBI. 21 MR. MURPHY: Mr. Bacon will answer 22 your question but it was a rather broad 515 1 question about has anybody ever discussed 2 anything with the White House. 3 MR. KLAYMAN: How would you suggest 4 we answer it, Mr. Murphy? 5 MR. MURPHY: I'd suggest you 6 reframe it rather than I. 7 BY MR. KLAYMAN: 8 Q I'll reframe it. Apart from this 9 conversation which may or may not have 10 occurred, as you've testified, was there ever 11 any other conversations by you or anyone at 12 the Department of Defense with The White 13 House concerning Linda Tripp? 14 A There was no conversation by me, 15 and I cannot answer the rest of the question. 16 Q Any written communications, same 17 question but putting in written 18 communications? 19 A None by me. 20 Q Can you answer with regard to 21 anybody else? 22 A I cannot. 516 1 Q Have you ever searched your 2 telephone records to see whether there were 3 other conversations? 4 A My secretary searched my telephone 5 records. 6 Q Did she search them in response to 7 a subpoena? 8 A Yes. 9 Q Which subpoena was that? 10 A I believe it was the subpoena last 11 year. 12 Q For the grand jury? 13 A You issued a subpoena last year and 14 one this year as well. I didn't specifically 15 talk to her about this, but the -- but my 16 understanding is that this is the type of 17 document that is searched. 18 Q Now, you don't know, do you, what 19 prompted Jane Mayer to call you? In other 20 words, you don't know whether she was 21 prompted to call you because she had spoken 22 to someone else at the Pentagon, do you? 517 1 MR. MURPHY: Now, I am going to 2 object because I don't think that's within 3 the scope of what Judge Lamberth's allowed 4 you to ask questions about. 5 MS. WEISMANN: I join in the 6 objection. 7 MS. COVEY: I join in as well. 8 MR. KLAYMAN: Let's certify it. 9 Certainly White House contact is in Judge 10 Lamberth's order. 11 BY MR. KLAYMAN: 12 Q Now, reading further into that CNN 13 transcript, which is Exhibit 6, Wolf Blitzer 14 then asked, "That she may have not fully 15 disclosed information about her background in 16 applying for security clearances," and 17 Secretary Cohen answers, "Well, not a matter 18 of fully disclosing. There is an item that's 19 to be checked -- Have you ever been either 20 charged or arrested for a crime? -- and if 21 the answer was no, then that's not simply a 22 matter of fully disclosing. It's a 518 1 contradiction of the truth." 2 Now, where did Secretary Cohen get 3 that? Did you give him that answer, too? 4 A No, I did not give him that answer. 5 Q Did you give him any part of that 6 answer? 7 A No. 8 Q So Secretary Cohen must have been 9 in contact with somebody else concerning 10 Linda Tripp? 11 A Well, that's not necessarily true 12 because I suspect he knew what this form was, 13 having filled them out in the past himself. 14 I mean, when I described the New Yorker 15 article to him, I described that it was about 16 checking a form. 17 Q And you told him what form it was? 18 A Well, I can't remember whether I 19 mentioned the name of the form. 20 Q You told him generically what kind 21 of form it was? 22 A Yeah, I said it was a security form 519 1 of some sort. 2 Q And you told him that Linda Tripp 3 in fact had not checked the box where it said 4 she'd been arrested? 5 A No, I don't believe I said that. I 6 just said that there was going to be a story 7 alleging that she had misreported this on the 8 form. I'm not sure I got into the question 9 of checking the box or not. 10 Q However, it was your understanding 11 that by telling Secretary Cohen that in fact 12 this was a serious matter that he could infer 13 that she hadn't checked the box? 14 A Well, I don't know what he inferred 15 or didn't infer. 16 Q But that was your intent, to convey 17 that Linda Tripp had not checked the box that 18 there was an arrest? 19 A As I said, I don't think I got into 20 that level of detail. I just said that there 21 was going to be this article coming, and this 22 is what the article was going to assert. 520 1 Q Well, early on in this deposition 2 you talked about nuanced discussions with 3 Secretary Cohen. Was this a nuanced 4 discussion as you would describe it? 5 A No, it was a very brief discussion. 6 Q Did you ask Secretary Cohen after 7 the interview how did he come up with that? 8 A No. 9 Q During the time that you've worked 10 at the Pentagon, have you ever known 11 Secretary Cohen to take a position that would 12 be adverse to the interest of the Clinton 13 Administration? 14 MR. MURPHY: Objection. That's 15 well beyond the scope of the questions that 16 Judge Lamberth has indicated Mr. Bacon is 17 required to answer. 18 MS. WEISMANN: I join in the 19 objection. 20 MR. KLAYMAN: Certify it. 21 BY MR. KLAYMAN: 22 Q Next question by Mr. Blitzer, "So 521 1 0your people now at the Defense Department 2 are going to look into this allegation?" 3 Mr. Cohen: "I'm sure it will be looked into. 4 It's a serious matter." That response you 5 gave to Secretary Cohen, correct? 6 A That's repeating what he said 7 earlier. 8 Q "It has not been investigated." 9 You told him that, too, correct? 10 A I didn't tell him that. 11 Q And how did he know that? 12 A Well, I think he knew it because 13 the allegation only occurred sometime over 14 the weekend and he was talking on Sunday, but 15 I don't know that. 16 Q And then he added, "At this point 17 it's still an allegation that we have no 18 knowledge of." Did you tell him to say that? 19 A No. 20 Q Do you know where he got that? 21 A No. 22 Q "So at this point it's not a matter 522 1 of investigation," did you tell him to say 2 that? 3 A No. 4 Q Reading this and given the facts 5 that you've testified to, which are that 6 Secretary Cohen, each time you told him 7 something, had no response, based on the 8 information that you have and your contact 9 with Secretary Cohen is it your opinion that 10 Secretary Cohen really didn't want to know 11 what was going on or what had happened, to 12 protect himself? 13 A It's my opinion that he saw this as 14 something that was not going to be a primary 15 focus of his interview, that the main focus 16 was going to be Iraq, that that's what he was 17 concentrating on, that he felt that I had 18 given him enough information for him to 19 answer the question quickly and to get out of 20 it. That was my impression. 21 Q But has it been your impression 22 since you've been at the Pentagon and this 523 1 Tripp issue has arisen that Secretary Cohen 2 really didn't want to get involved in it? 3 A Well, Secretary Cohen has not been 4 involved in this issue beyond ordering an IG 5 investigation. 6 Q But I didn't ask you that question. 7 I asked you is it your impression that he 8 didn't want to get involved in it, and that's 9 why he never responded to anything you've 10 told him? 11 A I can't speculate as to why he 12 didn't respond. I told you that I think in 13 this particular case he was focused primarily 14 on Iraq and most of what we've been talking 15 about that day was Iraq because he was going 16 to give a major talk to the press club on 17 Tuesday about Iraq, and I had provided most 18 of the facts for that talk and that's what we 19 had spent most of the time in this particular 20 meeting discussing, and as I said this was 21 really a tail-end issue. 22 Q So you've never received the 524 1 impression that Secretary Cohen was just 2 washing his hands of this Tripp issue? 3 A Secretary Cohen ordered an IG 4 investigation, and I think that he believes 5 that was the right way to proceed, and he'll 6 wait until the investigation is over and 7 decide what to do next. 8 Q Blitzer then asked, "Okay, 9 Mr. Defense Secretary, thank you so much for 10 joining us. Very kind of you to spend part 11 of your weekend with us on Late Edition. We 12 hope you'll be a regular guest on this 13 program. 14 "Mr. Cohen: "My pleasure. 15 "Blitzer: Thank you very much." 16 After that interview, did you tell 17 Secretary Cohen that he needed to clarify or 18 correct anything he said? 19 A I was in Montana when this 20 interview took place, and I don't believe I 21 read a transcript of the interview until I 22 returned a week later. 525 1 Q Well, did anything happen at that 2 time? 3 A No. 4 Q Did you see him on TV as he was 5 giving the interview? 6 A I did not. 7 Q Do you know who accompanied him to 8 CNN that day from the Defense Department? 9 A I believe it was Colonel Bridges. 10 Q Do you know what they discussed? 11 A I do not. 12 Q Have you ever discussed with 13 Colonel Bridges what went on that day? 14 A I have not. 15 Q Are you aware that there was a 16 press conference on Tuesday, March 17, 1999, 17 where Tripp was discussed? 18 A Yes. 19 Q Were you there? 20 A I was not. 21 Q Colonel Bridges was there, correct? 22 A I do not know. 526 1 Q Have you ever reviewed a transcript 2 of that press conference? 3 A I have. 4 Q In what context have you reviewed 5 it? 6 A I read it after I got back, and 7 I've reread it several times in preparation 8 for vario