1             MR. QUINLIVAN:  Yes, I am.

         2             MR. KLAYMAN:  Certify it.

         3             BY MR. KLAYMAN:

         4        Q    Did you receive facsimile

         5   communications advising you that you had to

         6   appear for deposition today?

         7             MR. QUINLIVAN:  Same objection.

         8             MR. KLAYMAN:  Certify it.

         9             BY MR. KLAYMAN:

        10        Q    Did anyone call you to discuss what

        11   your testimony would be about while you were

        12   in Kansas?

        13             MR. QUINLIVAN:  Same objection.

        14             MR. KLAYMAN:  Certify it.

        15             BY MR. KLAYMAN:

        16        Q    What led you to believe that the

        17   deposition had been rescheduled by Judicial

        18   Watch from the first deposition subpoena that

        19   you received?

        20             MR. QUINLIVAN:  I'm going to object

        21   to that question to the extent it calls for

        22   the witness to reveal attorney/client


         1   communications.  And as to all of these

         2   objections -- if the witness can respond to

         3   these questions without revealing the

         4   substance of attorney/client communications,

         5   the witness can respond.  But to the extent

         6   the witness' knowledge is based on the

         7   substance of attorney/client communications,

         8   we are objecting and directing the witness

         9   not to respond.

        10             BY MR. KLAYMAN:

        11        Q    Are you going to respond?

        12        A    There were no communications

        13   outside of my attorneys.

        14        Q    Are you being represented in your

        15   personal capacity by any attorney?

        16        A    No.

        17        Q    Have you ever discussed being

        18   represented in your personal capacity?

        19             MR. QUINLIVAN:  I'm going to object

        20   to that question on vagueness grounds.  I ask

        21   that some time frame be offered.

        22             BY MR. KLAYMAN:


         1        Q    Has anyone advised you that you

         2   have the right to have an attorney here in

         3   your personal capacity?

         4             MR. QUINLIVAN:  I'm going to object

         5   to that.  To the extent that that calls for

         6   attorney/client communications I'm going to

         7   object to that.

         8             MR. KLAYMAN:  Certify it.

         9             BY MR. KLAYMAN:

        10        Q    Have you yourself considered

        11   whether you want to have an attorney to

        12   represent you personally?

        13        A    I have considered it.

        14        Q    Did you consider it on your own or

        15   did someone give you a suggestion to consider

        16   it?

        17             MR. QUINLIVAN:  That's the same

        18   objection counsel.

        19             BY MR. KLAYMAN:

        20        Q    You can respond.

        21             MR. QUINLIVAN:  The witness cannot

        22   respond to the extent that it calls for him


         1   to reveal the substance of attorney/client

         2   communications.

         3             MR. KLAYMAN:  Well, it may have

         4   come from someone else.

         5             MR. QUINLIVAN:  If the witness has

         6   that information, the witness can reveal

         7   that.  I'm directing him not to respond to

         8   the extent it calls for the substance of the

         9   attorney/client communications.

        10             BY MR. KLAYMAN:

        11        Q    Will you please respond?

        12        A    I have thought about it on my own.

        13   I rejected it on my own.

        14        Q    Why did you reject it on your own?

        15        A    Mr. Klayman, I've served in the

        16   military for 21 years, served in Vietnam, I

        17   have a son in the Air Force, I have served in

        18   the government for 30 years.  I trust the

        19   government.  I trust this -- the judicial

        20   proceedings and I do not believe that if I

        21   tell the truth, that I need that kind of

        22   representation.  I hope that's still the


         1   truth.

         2        Q    Why is it that you believe if you

         3   tell the truth you don't need that

         4   representation?

         5        A    I believe it.  I believe in this

         6   country.

         7             MR. KLAYMAN:  I will show you what

         8   I'll ask the court reporter to mark as

         9   Exhibit 3.

        10                  (Bernath Deposition Exhibit

        11                  No. 3 was marked for

        12                  identification.)

        13             BY MR. KLAYMAN:

        14        Q    I show you Exhibit 3.  This is a

        15   transcript of an appearance by Secretary of

        16   Defense William Cohen on Fox News Sunday on

        17   April 26th, 1998.

        18             I call your attention to page nine.

        19   You can look at the bottom portion of the

        20   page numbers to find the appropriate page.

        21   Page nine.  Have you turned to page nine?

        22        A    I have.


         1        Q    I'm reading fourth paragraph down

         2   where Tony Snow says, "Last week on national

         3   television Linda Tripp's attorney said she

         4   was afraid she was going to lose her job.  Is

         5   she?"

         6             Cohen responds, "She's not going to

         7   lose her job.  As far as I'm concerned, she's

         8   performing a job by working at home for the

         9   time being.  But there's no indication on our

        10   part that should have that fear.  She's

        11   working at home in order to work out her

        12   particular arrangement which is a sensitive

        13   one now; namely, she's still working with the

        14   independent counsel.

        15             "So it was worked out between

        16   management and her that she could work at

        17   home at least for a temporary period of time.

        18   But there is no --

        19             "SNOW:  Now --

        20             "COHEN:  There's no plan to fire

        21   her.

        22             "SNOW:  Her personnel file was made


         1   public.  That's illegal, isn't it?

         2             "COHEN:  We think it's certainly

         3   inappropriate, if not illegal, and we called

         4   for an investigation as to how that occurred

         5   and we know the individual that did release

         6   it.

         7             "SNOW:  Was it Clifford Bernath?

         8   Was he the one who did it?

         9             "COHEN:  Yes.

        10             "SNOW:  He was a public information

        11   officer?

        12             "COHEN:  Right.

        13             "SNOW:  So he knew the law?

        14             "COHEN:  Well, I don't know if he

        15   knew the law.  He was responding to an

        16   inquiry from the press.  Frankly, I think

        17   that everyone has to exercise a lot more

        18   caution.  Just because the press is inquiring

        19   doesn't mean the press is entitled.  So that

        20   matter is under investigation right now in

        21   terms of what the implications are.  But

        22   certainly inappropriate."


         1             Were you aware of this statement on

         2   Fox News Sunday by Secretary of Defense

         3   Cohen?

         4        A    No, this is the first time that

         5   I've seen it in its complete form.

         6        Q    Have you heard of this statement

         7   before?

         8             MR. QUINLIVAN:  I'm going to raise

         9   an objection at this point.  The scope of the

        10   testimony that was allowed by Judge Lamberth

        11   in his April 13th order regards "discovery

        12   into this and other matters bearing on the

        13   obtaining and misuse of government files in

        14   order to create the inference that is

        15   reasonable to conclude that FBI files were

        16   obtained and misused in the instant case,"

        17   and I'm going to note for the record that to

        18   the extent this or any of the following

        19   questions calls for the witness to go beyond

        20   that scope or beyond that which was allowed

        21   in the letter of yesterday from the

        22   Department of Defense, that we are going to


         1   be objecting to that.

         2             MR. KLAYMAN:  Are you going to

         3   instruct him not to answer?

         4             MR. QUINLIVAN:  I'm not at this

         5   point.  I'm noting that for the record that

         6   we will be having a standing objection.  Not

         7   at this point, but I am raising it for the

         8   record.

         9             MR. KLAYMAN:  That's fine.  Raise

        10   it for the record.  I disagree with it.  But

        11   you can raise it for the record.

        12             BY MR. KLAYMAN:

        13        Q    Mr. Bernath, you read this

        14   statement to reflect the position of

        15   Secretary Cohen, do you not, that you did

        16   something inappropriate by releasing the

        17   information in Linda Tripp's file, correct?

        18             MR. QUINLIVAN:  I'm going to object

        19   to that.  That's argumentative.

        20             BY MR. KLAYMAN:

        21        Q    You can respond.

        22        A    I don't know what Secretary Cohen


         1   feels.  I know what he said here.  I have not

         2   discussed it with him.

         3        Q    You're aware that he said having

         4   reviewed this, that what you did may very

         5   well be illegal, correct?

         6        A    That's what he says in this

         7   article.

         8        Q    Did you consider the position of

         9   the Department of Defense with regard to your

        10   actions concerning Linda Tripp before you

        11   decided that you were not going to get

        12   personal counsel?

        13        A    I have considered the scope and I

        14   believe I still am of the mind that I do not

        15   want a personal counsel.

        16        Q    Do you want to be represented by

        17   Department of Defense that says you did

        18   something inappropriate and perhaps illegal?

        19             MR. QUINLIVAN:  I'm going to object

        20   to that.  That's is argumentative and that's

        21   an inappropriate question.

        22             BY MR. KLAYMAN:


         1        Q    You can respond.

         2        A    The Department of Defense has been

         3   my career for 30 years.  I have full faith

         4   and confidence in my chain of command that

         5   they will do the right thing.

         6        Q    So you accept what Secretary Cohen

         7   said here, that your actions were certainly

         8   inappropriate, if not illegal?

         9        A    No.

        10             MR. QUINLIVAN:  I'm going to object

        11   to that.  That mischaracterizes.  The witness

        12   has not testified as to that and that

        13   mischaracterizes the witness' testimony and,

        14   in addition, is argumentative and borders on

        15   being abusive.

        16             MR. KLAYMAN:  I take issue with

        17   your concept of abusive.  We have certainly

        18   gone through that before with the court and

        19   the court has also ruled on that issue.

        20             BY MR. KLAYMAN:

        21        Q    Is it your position that your

        22   actions with regard to Linda Tripp in


         1   releasing the information in her personnel

         2   file was inappropriate?

         3        A    No.

         4        Q    Do you think it was appropriate?

         5        A    I think that there's an

         6   investigation underway and they will

         7   determine that.

         8        Q    Is it your position that what you

         9   did was appropriate?

        10        A    It's my position that what I did

        11   was within the scope of my duties and

        12   appropriate, yes.

        13        Q    Is it your position that what you

        14   did was legal?

        15        A    Yes.

        16        Q    Mr. Bernath, do you wish to

        17   reconsider whether you want your own personal

        18   counsel here?  I'll give you that courtesy.

        19             MR. QUINLIVAN:  I'm going to object

        20   to that as being not only argumentative, but

        21   a completely inappropriate comment for

        22   counsel to make and abusive as well.


         1             MR. KLAYMAN:  Well, I think what

         2   I'm doing is the right thing.  What you're

         3   doing obviously is not the right thing,

         4   Mr. Quinlivan.  I think you have a severe

         5   conflict of interest here in representing

         6   this witness and I think you should withdraw

         7   and everybody else at the table should

         8   withdraw from representation forthwith.

         9             BY MR. KLAYMAN:

        10        Q    I'm going to give you the courtesy

        11   if you want to have your own personal

        12   counsel, Mr. Bernath.

        13        A    I'm here.  I'm ready to go.

        14        Q    You don't want to have your own

        15   personal counsel?

        16        A    Correct.

        17        Q    Have you discussed the statement

        18   made by Secretary of Defense William Cohen on

        19   Fox News Sunday on the 26th of April with

        20   him?

        21        A    No.

        22        Q    Have you discussed it with anyone?


         1        A    I was informed of the statement by

         2   Mr. Bacon.  We did not really discuss it.

         3        Q    What did Mr. Bacon inform you of?

         4        A    That the Secretary had been on the

         5   Fox T.V. show and that that was the statement

         6   that he made.

         7        Q    When did Mr. Bacon inform you of

         8   that?

         9        A    Monday morning.

        10        Q    You were still in Kansas at the

        11   time?

        12        A    Correct.

        13        Q    Did you call him?  Did he call you?

        14   How were you informed?

        15        A    I had a message to call him.

        16        Q    Where was that message received?

        17        A    At the hotel.

        18        Q    Did you call him back?

        19        A    Yes.

        20        Q    At what time did you call him back?

        21        A    I don't recall.  Sometime in the

        22   morning.


         1        Q    How long did the conversation last?

         2        A    About a minute.

         3        Q    Was that the only call that you had

         4   received from the Department of Defense since

         5   you had traveled to Kansas?

         6        A    I had received calls from counsel.

         7        Q    When did you receive calls from

         8   counsel?

         9        A    I believe the Monday morning.

        10        Q    Which counsel did you receive calls

        11   from?

        12        A    Mr. Wiegmann.

        13        Q    Did you have to call him back or

        14   were you there when the call was placed?

        15        A    I had to call him back.

        16        Q    How long did the call last with

        17   Mr. Wiegmann?

        18        A    I don't recall.  Not long.  None of

        19   these calls lasted long.

        20        Q    Roughly speaking?

        21        A    Two minutes, three minutes.

        22        Q    Did you have any other calls other


         1   than the ones you've just identified while

         2   you were in Kansas other than personal calls

         3   from your family?

         4        A    There were a series, maybe three

         5   calls, that I had with counsel, with

         6   Mr. Wiegmann.

         7        Q    When did those three calls occur?

         8        A    They were all on that Monday

         9   morning.

        10        Q    Which counsel called you?

        11        A    Mr. Wiegmann.

        12        Q    How long did each call last?

        13        A    A few minutes.

        14        Q    Did you receive any calls Monday

        15   night?

        16        A    Not that I recall no.

        17        Q    Does that mean you did or you

        18   didn't?

        19        A    I don't recall any.

        20        Q    So you're saying you can't remember

        21   or there weren't any calls?

        22        A    I'm saying that I don't recall any.


         1        Q    Did you receive any calls Tuesday

         2   morning?

         3        A    No.

         4        Q    Tuesday afternoon?

         5        A    I'm sorry.  Tuesday.  Let me get

         6   back on my schedule here.  I'm sorry.  All

         7   the calls that I just referred to were on

         8   Tuesday morning, not on Monday morning.

         9        Q    During those calls were you advised

        10   that the court had ordered you to be deposed

        11   on Wednesday?

        12             MR. QUINLIVAN:  That's the same

        13   objection that I stated many times earlier.

        14   I object to that as it calls for the

        15   substance of attorney/client communications

        16   and direct the witness not to answer.

        17             MR. KLAYMAN:  Just so we're

        18   absolutely clear, you're saying that the

        19   court order, which is Exhibit 1, requiring

        20   Mr. Bernath to be deposed on Wednesday,

        21   the 28th of April, you're saying that is an

        22   attorney/client communication, that


         1   information is privileged?  Even if an

         2   attorney relayed it, that is privileged?

         3             MR. QUINLIVAN:  The substance --

         4   just a moment.

         5             Counsel, I believe you may have

         6   misstated the dates of the order.

         7             MR. KLAYMAN:  Let me see Exhibit 1

         8   again.  I'll be happy to correct the record.

         9             Let me correct the record from the

        10   standpoint of Mr. Bernath and make sure I'm

        11   clear.

        12             BY MR. KLAYMAN:

        13        Q    The calls that you just referred to

        14   occurred on Tuesday.  You're sure they didn't

        15   occur on Monday?

        16        A    Yeah, to the best of my knowledge,

        17   yes, Tuesday.

        18        Q    So from the point that you left on

        19   Saturday to go to Kansas the first calls that

        20   you got from Washington, D.C., from anybody

        21   were on Tuesday the 28th of April?

        22        A    The call from Ken Bacon was on


         1   Monday.  The calls from Mr. Wiegmann, I

         2   believe, were on Tuesday.

         3        Q    Didn't get any other calls during

         4   that period?

         5        A    Not that I recall, no.

         6        Q    Did you get any faxes during that

         7   period or mail?

         8        A    No.

         9        Q    No type of communication?

        10        A    No.

        11        Q    What was discussed with Mr. Bacon

        12   on Monday was only the statement of Secretary

        13   Defense Cohen that he made on Fox Morning

        14   News?

        15        A    That's correct.

        16        Q    He didn't discuss anything about

        17   this deposition or when it would take place?

        18        A    No.

        19        Q    Did Mr. Bacon discuss with you

        20   whether or not you could come back to

        21   Washington sooner from your trip to Kansas?

        22        A    It never came up.


         1        Q    I take it no one ever asked that

         2   question to you?

         3             MR. QUINLIVAN:  I'm going to object

         4   to that to the that extent it calls for the

         5   witness to reveal the substance of

         6   attorney/client communications.

         7             MR. KLAYMAN:  That's a nice way to

         8   tip the witness off.  Thank you.

         9             Certify this.

        10             BY MR. KLAYMAN:

        11        Q    Please answer the question.

        12             MR. QUINLIVAN:  To the extent that

        13   it calls for attorney/client communications,

        14   I'm directing the witness not to respond.  If

        15   the witness has knowledge that is responsive

        16   to the question that does not call him to

        17   reveal attorney/client communications, the

        18   witness can respond.

        19             THE WITNESS:  I have no knowledge

        20   outside of that relationship.

        21             BY MR. KLAYMAN:

        22        Q    Well, you just told me that you got


         1   no communications of any kind until Tuesday

         2   morning, correct, from any source?

         3        A    I told you the conversations that I

         4   had, yes.

         5        Q    What time was the first call on

         6   Tuesday morning from any source?

         7        A    About 8:30 or 9 o'clock.  That was

         8   Kansas time, so that was an hour ahead of

         9   yours.

        10        Q    So 9:30, 10 o'clock Washington

        11   D.C., time, East Coast time?

        12        A    That's right.  I don't record these

        13   things.  I don't have notes on these things.

        14   I don't remember the exact times.  They were

        15   in the morning.  They were early in the

        16   morning.  8:30'ish, 9:30'ish, in that time

        17   frame.

        18        Q    Up to that point in time had you or

        19   anyone else, to the best of your knowledge,

        20   made any inquiries as to whether you could

        21   get travel arrangements to come back from

        22   Kansas early?


         1        A    Can I consult here?

         2        Q    No, I want the answer.  No

         3   consultation.  This is a simple question.

         4             MR. QUINLIVAN:  No, he has a right

         5   to consult with counsel if he has a question.

         6             MR. KLAYMAN:  This is a simple

         7   question which has nothing to do with

         8   attorney/client communication or anything

         9   else.  I'm entitled to the answer.

        10                  (Witness conferred with counsel)

        11             MR. KLAYMAN:  I object to this.

        12   Completely inappropriate.

        13             MR. QUINLIVAN:  I am directing that

        14   to the extent that this calls for the witness

        15   to reveal the substance of attorney/client

        16   communications, the witness is directed not

        17   to respond.

        18             To the extent the witness has

        19   knowledge responsive to this question that

        20   does not call for attorney/client

        21   communications, the witness can respond to

        22   this question.


         1             BY MR. KLAYMAN:

         2        Q    Are you going to respond?

         3        A    I can't respond because it falls

         4   within the objections that he has just made.

         5        Q    Are you saying that you will not

         6   testify as to whether or not travel

         7   arrangements were contemplated or made to get

         8   you back from Kansas before the completion of

         9   your stay there, as originally scheduled?

        10             MR. QUINLIVAN:  Counsel, I object.

        11   That mischaracterizes.  The witness has not

        12   testified to that at all.

        13             BY MR. KLAYMAN:

        14        Q    Answer that question.

        15        A    I don't understand the difference

        16   between the two questions.

        17        Q    Do you know whether anyone made any

        18   inquiry as to whether you could come back

        19   from Kansas early before the end of your

        20   scheduled departure?

        21             MR. QUINLIVAN:  Same objection.  To

        22   the extent this calls for the witness to


         1   reveal the substance of attorney/client

         2   communications, the witness is directed not

         3   to respond.  If the witness can respond to

         4   this question by something other than

         5   attorney/client communications, then the

         6   witness can respond.

         7             BY MR. KLAYMAN:

         8        Q    Please respond.

         9        A    I cannot respond to anything

        10   outside -- there is no communication outside

        11   of the attorney privilege that occurred.

        12        Q    Did you instruct your assistant to

        13   make travel plans to get you back from Kansas

        14   early?

        15        A    No.

        16        Q    Do you know of anyone who did?

        17        A    Do I know of anybody who instructed

        18   my assistant to do that?

        19        Q    Yes.

        20        A    No.

        21        Q    Did you yourself call the airlines

        22   and see whether you could come back early?


         1             MR. QUINLIVAN:  You can answer the

         2   question.

         3             THE WITNESS:  Yes, I did.

         4             BY MR. KLAYMAN:

         5        Q    When did you call the airlines?

         6        A    Tuesday.

         7        Q    At what time?

         8        A    Early in the morning again

         9   about 9:00, 10:00, somewhere around there.

        10        Q    That was the first time you made

        11   such a call?

        12        A    Yes.

        13        Q    Were you aware at the time that you

        14   made that call that the court had ordered you

        15   to appear for deposition that morning?

        16             MR. QUINLIVAN:  You can answer.

        17             THE WITNESS:  Yes.

        18             MR. KLAYMAN:  Take a two-minute

        19   break.

        20             VIDEO TECHNICIAN:  We're going off

        21   video record at 11:16 a.m.

        22                  (Recess)


         1             VIDEO TECHNICIAN:  We're back on

         2   video record at 11:26 a.m.

         3             BY MR. KLAYMAN:

         4        Q    Mr. Bernath, were you advised any

         5   time during the day of April 23rd that, last

         6   Thursday, that Judicial Watch's position was

         7   that it wanted to take your deposition on

         8   Friday, the 24th of April?

         9             MR. QUINLIVAN:  I'm going to object

        10   to that question to the extent it asks for

        11   the witness to reveal the substance of

        12   attorney/client communications.  If the

        13   witness can respond to that question without

        14   revealing attorney/client, he can do so.

        15             MR. KLAYMAN:  Please respond.

        16             THE WITNESS:  There is nothing

        17   outside of the attorney/client that I can

        18   respond to.

        19             MR. KLAYMAN:  Certify it.

        20             BY MR. KLAYMAN:

        21        Q    Referring to Exhibit 2, which is

        22   the subpoena that was served upon you, at the


         1   time it was served on you what office of the

         2   Department of Defense, if any, were you

         3   working for?

         4        A    I was working for the American

         5   Forces Information Service, which is part of

         6   the Department of Defense.

         7        Q    Referring to Exhibit 2, have you

         8   produced documents responsive to this

         9   subpoena?

        10        A    I have.

        11        Q    Can I please see them?

        12        A    I'm going to ask that this entire

        13   package be marked as Exhibit 4.

        14                  (Bernath Deposition Exhibit

        15                  No. 4 was marked for

        16                  identification.)

        17             MR. KLAYMAN:  We can go off the

        18   record right now as I take a look at this.

        19             MR. QUINLIVAN:  We're objecting to

        20   that.  This counts as time.

        21             MR. KLAYMAN:  Well, you'll get to

        22   take any issue you want up with the court,


         1   Mr. Quinlivan.  I'm entitled to see what it

         2   has that's been produced so I'm able to ask

         3   questions about it.  I'm taking just a

         4   reasonable amount of time.  It's our position

         5   that this does not count as deposition time.

         6             MR. QUINLIVAN:  I note that our

         7   objection stands.

         8             MR. KLAYMAN:  Go back on the record

         9   for that.

        10             Just let the record reflect that

        11   we're entitled to a reasonable amount of time

        12   to see what it is that's been produced.  This

        13   does not count against deposition time.  This

        14   is our position.  I'm just going to take a

        15   reasonable period to leaf through here to

        16   find out what's been produced.

        17             MR. QUINLIVAN:  We do not disagree

        18   that counsel has the right to look at the

        19   records, but that should be on record.

        20             MR. KLAYMAN:  We can go off the

        21   record now.

        22             MR. QUINLIVAN:  Let me just note


         1   for the record that this is a third-party

         2   witness who has been subpoenaed, whose time

         3   is very important and we should not have to

         4   wait and take up his time.  Counsel should be

         5   as accommodating as possible to not make this

         6   a long and drawn out --

         7             MR. KLAYMAN:  That's absurd,

         8   Mr. Quinlivan.

         9             Your concern for the witness should

        10   be more geared on the conflict of interest,

        11   which you have, than whether I'm entitled a

        12   reasonable amount of time to look at the

        13   records you've just produced.

        14             MR. QUINLIVAN:  I'm directing our

        15   court reporter to stay on the record.

        16             MR. KLAYMAN:  She's taking

        17   transcription. That's fine.  She can stay on

        18   the record.  I just want to stop the

        19   videotape so we don't unnecessarily use

        20   videotape here.

        21             VIDEO TECHNICIAN:  We're going off

        22   video record at 11:32.


         1                  (Pause)

         2             MR. KLAYMAN:  Let's go back on the

         3   record.

         4             VIDEO TECHNICIAN:  We're back on

         5   video record at 11:36.

         6             MR. KLAYMAN:  Let the record

         7   reflect that plaintiffs have used no more

         8   than 5 to 10 minutes to take a look at these

         9   document.

        10             Mr. Quinlivan, do you have extra

        11   copies of these document so we can proceed

        12   expeditiously?

        13             MR. QUINLIVAN:  No.

        14             MR. KLAYMAN:  So this is the only

        15   copy that exists?

        16             MS. SHAPIRO:  We have one copy.

        17             MR. KLAYMAN:  Do other counsel want

        18   copies because I can proceed right now --

        19             MS. SHAPIRO:  We're fine.  We'll

        20   share this one.

        21             MR. KLAYMAN:  So we have enough

        22   copies to continue the questioning?


         1             MR. QUINLIVAN:  Uh-huh.

         2             MR. KLAYMAN:  Let's continue.

         3             BY MR. KLAYMAN:

         4        Q    Exhibit 4, the first pages of

         5   Exhibit 4 are entitled, "Responsive documents

         6   in the custody of Clifford Bernath that have

         7   been withheld from production in response to

         8   Plaintiffs' Subpoena Duces Tecum to Clifford

         9   Bernath."

        10             This consists of one, two, three,

        11   four, five, six -- seven, pages; is that

        12   correct, Mr. Bernath?

        13        A    Yes, seven pages.

        14        Q    The next document is called, "Index

        15   to claims of privilege responsive documents

        16   in the custody of Clifford Bernath that have

        17   been withheld from production in response to

        18   Plaintiffs' Subpoena Duces Tecum to Clifford

        19   Bernath"; is that correct?

        20        A    Yes.

        21        Q    Then following this document we

        22   have documents that are numbered 1 through 75


         1   and these documents appear to be from your

         2   date book for 1998; is that correct?

         3        A    Not all of them.  The date book is

         4   through 29.

         5        Q    Following 1 through 29 we have

         6   something which is entitled,

         7   "Lewinsky/Tripp 26 of March, 1998,

         8   Questions," and that consists of two pages,

         9   it's 30 and 31?  Or is it longer than that?

        10        A    No, it's two pages.

        11             I'm sorry.  No, it's longer than

        12   that.  It's four pages.  It is four pages

        13   here.

        14        Q    How far up does it go?  To 34?

        15        A    Through 33.

        16        Q    Through 33.  What is that document?

        17        A    That's a public affairs' guidance

        18   in anticipation of questions from the media.

        19   If the media asks these questions, these are

        20   the answers that we would offer.

        21        Q    Did you prepare the document

        22   yourself?


         1        A    No.

         2        Q    Who prepared it?

         3        A    It's comes from our directorate

         4   from Defense Information.  It's a compilation

         5   of people who prepare these types of

         6   questions and answers.

         7        Q    Who actually prepared it?

         8        A    I don't know who -- which staff

         9   officer.

        10        Q    Was it forwarded to your office?

        11        A    This is forwarded to anybody who

        12   might have to answer a question from the

        13   media.

        14        Q    What office were you in at the

        15   time?

        16        A    I was in the Office of the

        17   Assistant Secretary of Defense for Public

        18   Affairs.

        19        Q    Do you know when this document was

        20   prepared?

        21        A    Yes, 26th of March.

        22        Q    What documents follow this starting


         1   with 34?

         2        A    These are electronic mail

         3   documents -- let's see.

         4        Q    Commonly known as E-mail?

         5        A    Yes.  Looks like it's a mixture of

         6   E-mail and some memoranda.

         7        Q    How far does the E-mail go?

         8        A    Pages --

         9        Q    Up to what number?

        10        A    Up through 42.  Except that page 38

        11   is not E-mail, it's a memorandum.  39 also is

        12   not E-mail.

        13        Q    What happened to document 43?  I

        14   don't see it.

        15             MR. QUINLIVAN:  I would point

        16   counsel to the privilege log that's on the

        17   cover of the I --

        18             MR. KLAYMAN:  That doesn't seem to

        19   make any sense because we start at 1 and I

        20   see that there is a document that's claimed

        21   privilege under the privacy account under 1,

        22   but yet document 43 is just completely


         1   missing.

         2             MR. QUINLIVAN:  Let me point

         3   counsel to the fact that there are certain

         4   documents in here which have been withheld in

         5   their entirety.

         6             MR. KLAYMAN:  Are those documents

         7   listed on the privilege log?

         8             MR. QUINLIVAN:  Yes, they are.

         9             MR. KLAYMAN:  What number is that

        10   on the privilege log?  Is it 43?

        11             MR. QUINLIVAN:  Would you like to

        12   know all of them?

        13             MR. KLAYMAN:  Yes.  First I want to

        14   know how the system works.

        15             Are you saying that if there's a

        16   numbered document that is produced, that it

        17   corresponds with the number on the privilege

        18   log?

        19             MR. QUINLIVAN:  That is correct.

        20             MR. KLAYMAN:  That if it is

        21   produced, then it's a redacted version.

        22             MR. QUINLIVAN:  That is correct.


         1             MR. KLAYMAN:  But if the document

         2   does not appear at all, that means the

         3   document has been withheld in its entirety?

         4             MR. QUINLIVAN:  That's correct.

         5             MR. KLAYMAN:  You're sure of that?

         6             MR. QUINLIVAN:  Yes.

         7             For counsel's information, pages 36

         8   through 37 have been withheld in their

         9   entirety, pages 40 and 41 have been withheld

        10   in their entirety, page 43 has been withheld

        11   in its entirety, pages 45 through 48 have

        12   been withheld in their entirety, pages 50

        13   through 53 have been withheld in their

        14   entirety and that concludes --

        15             MR. KLAYMAN:  Are you willing to

        16   submit the documents that have been withheld

        17   in whole or in part for an in-camera review?

        18             MR. QUINLIVAN:  No.

        19             MR. KLAYMAN:  Why is that?

        20             MR. QUINLIVAN:  I'm not going to

        21   get into a legal debate on issues.  This is a

        22   deposition.


         1             MR. KLAYMAN:  Certify this part of

         2   the deposition.

         3             BY MR. KLAYMAN:

         4        Q    Let's turn to document 44.  What is

         5   document 44, Mr. Bernath?

         6        A    This is a routing slip that covered

         7   document 49, which was -- so this was the way

         8   the security people forwarded this

         9   memorandum -- this letter from representative

        10   Solomon to me.

        11        Q    The letter appears as page

        12   number 49?

        13        A    That's correct.

        14        Q    What about the documents between 45

        15   and 48, did they come from Congressman

        16   Solomon as well?

        17        A    Yeah, those are described here on

        18   the withheld parts.

        19        Q    I don't see that they relate to

        20   Chairman Solomon.

        21        A    They were the response to the

        22   congressional inquiry regarding release about


         1   Linda Tripp.  That's what Solomon's letter

         2   was.

         3        Q    Maybe Mr. Quinlivan can answer

         4   this, but why is a response to Congressman

         5   Solomon being withheld under a claim of

         6   privilege?

         7             MR. QUINLIVAN:  The privileges are

         8   listed on the log for counsel.

         9             MR. KLAYMAN:  Well, why is it being

        10   withheld?

        11             MR. QUINLIVAN:  It's being held on

        12   the basis of the deliberative process

        13   privilege, as well as on the basis that some

        14   of the information therein contains material

        15   protected by the privacy act.

        16             BY MR. KLAYMAN:

        17        Q    Mr. Bernath, the documentation

        18   which was sent to Chairman Solomon, was that

        19   documentation classified?

        20        A    No.  I think that the question here

        21   is that what was -- what I had in my

        22   possession was not the final copy.  It was a


         1   draft that was sent around for approval.  So

         2   I think that's why it's deliberative.

         3        Q    Was the final copy produced in this

         4   production?

         5        A    I never had the final copy.

         6        Q    So you produced only information

         7   which you yourself had?  You're producing

         8   only documents which you yourself had?

         9        A    Yes.

        10        Q    You're not producing any documents

        11   that are located anywhere else in your

        12   office?

        13        A    Any documents that were under my

        14   control that pertained to this.

        15        Q    How did you determine what was

        16   under your control in making document

        17   production at Judicial Watch?

        18        A    Well, I -- if the question is -- I

        19   would never have had the final copy of the

        20   letter that was signed.  That never would

        21   have been in my possession.  I never have

        22   seen it.  It's a different --


         1        Q    Who would have possession of that?

         2        A    It's a different office.

         3        Q    Who would have possession of that?

         4        A    It's not public affairs.

         5             I don't know.  I guess it would

         6   come from the director for administration and

         7   management.

         8        Q    Well, if you never had the final

         9   copy, how did you determine that what you

        10   provided wasn't the final copy?

        11        A    I assume your subpoena went to

        12   other places.  I don't know.  The subpoena

        13   that I had asked for copies of records in my

        14   possession.

        15        Q    Right.  What I'm saying to you is,

        16   you withheld production of this submission to

        17   Chairman Solomon because you're claiming that

        18   it was not the final version of what was sent

        19   to Chairman Solomon, correct?

        20        A    I have said none of these are my

        21   determinations, so I would have to refer to

        22   counsel.


         1        Q    Are you saying that you didn't

         2   review this privilege log that we listed, the

         3   first seven pages, before it was submitted?

         4             MR. QUINLIVAN:  Objection.

         5             BY MR. KLAYMAN:

         6        Q    You can respond.

         7             MR. QUINLIVAN:  No, I'm directing

         8   the witness not to respond.

         9             MR. KLAYMAN:  Certify it.

        10             On what basis are you directing him

        11   not to respond?

        12             MR. QUINLIVAN:  Attorney/client

        13   privilege.

        14             MR. KLAYMAN:  Whether or not he

        15   reviewed the first seven pages is

        16   attorney/client privilege?

        17             MR. QUINLIVAN:  The objection

        18   stands.

        19             BY MR. KLAYMAN:

        20        Q    Did you approve the submission of

        21   the first seven pages before it was provided

        22   to Judicial Watch this morning as this


         1   privilege log?

         2             MR. QUINLIVAN:  Same objection.

         3             BY MR. KLAYMAN:

         4        Q    Did you approve it?

         5             MR. QUINLIVAN:  The witness is

         6   directed not to respond to that question.

         7             MR. KLAYMAN:  Certify it.

         8             BY MR. KLAYMAN:

         9        Q    You don't know whether or not what

        10   was withheld that you just made reference to,

        11   the submission to Chairman Solomon, is

        12   identical to the copy that you have in your

        13   files, do you?

        14        A    Are you asking me if the copy that

        15   was finally signed and sent to him was

        16   identical to the one that I had?

        17        Q    Yes.

        18        A    No, I do not know that.

        19        Q    Does it concern you that you don't

        20   have the answer to that question?

        21        A    No.

        22        Q    Why?


         1        A    I'm not the person who signed it.

         2   They asked when a copy -- document is sent

         3   around for coordination, they're saying is

         4   information essentially true, do you agree

         5   with it or do you have any corrections to

         6   make.  Whether the person who signs it at the

         7   end agrees or disagrees with anything that I

         8   said is not my concern.

         9        Q    Is it your position that you are,

        10   yourself, not appearing here today as

        11   Clifford Bernath, but you're appearing for

        12   the Department of Defense?

        13        A    No.

        14             MR. QUINLIVAN:  Object to that

        15   question.

        16             BY MR. KLAYMAN:

        17        Q    Well, what is it your understanding

        18   that you're appearing here as?

        19        A    My understanding is that I'm

        20   appearing here as Clifford H. Bernath,

        21   Principal Deputy Assistant, Secretary of

        22   Defense, Public Affairs.


         1        Q    So it's your understanding that

         2   it's your responsibility to know what's being

         3   produced in terms of documentation, correct?

         4        A    It's my responsibility to submit

         5   all the records that I had which were

         6   responsive to your subpoena to the general

         7   counsel.

         8        Q    But it's your responsibility and

         9   yours alone, is it not, to produce what is

        10   requested?

        11             MR. QUINLIVAN:  Counsel, that is a

        12   legal --

        13             BY MR. KLAYMAN:

        14        Q    You can respond.  Based on what his

        15   knowledge is.

        16             MR. QUINLIVAN:  No, counsel when I

        17   make an objection, I would appreciate it if

        18   you would not speak over me.

        19             MR. KLAYMAN:  Well, I would

        20   appreciate you not making speaking

        21   objections.  Make your objection and let's

        22   move on.


         1             MR. QUINLIVAN:  Well, if I'm given

         2   the opportunity to do so, then I will make

         3   the objection.

         4             MR. KLAYMAN:  But you're not

         5   entitled to say what his responsibility is or

         6   not.  You're giving him testimony and that's

         7   inappropriate.

         8             MR. QUINLIVAN:  I'm objecting to

         9   what you're saying right now.

        10             MR. KLAYMAN:  Then just make your

        11   objection and end it without giving

        12   testimony.

        13             MR. QUINLIVAN:  I am not giving him

        14   testimony.  The objection is that you're

        15   asking for a legal conclusion to a witness

        16   who has already testified that he's not a

        17   lawyer.

        18             MR. KLAYMAN:  There we go.

        19             Certify it.  There's the testimony.

        20             BY MR. KLAYMAN:

        21        Q    Are you saying you have no

        22   responsibility to know what's being produced


         1   here today?

         2             MR. QUINLIVAN:  I object to that.

         3   That mischaracterizes --

         4             BY MR. KLAYMAN:

         5        Q    From what you understand to be your

         6   responsibility.  Are you saying you're not

         7   responsible for the documents that were

         8   produced today?  Is that your position?

         9        A    That is absolutely not the position

        10   I am taking.  It is my responsibility to

        11   submit all the documents that I had that were

        12   responsive to this subpoena and to provide

        13   them to the general counsel and to seek their

        14   advice.

        15        Q    But you're withholding the

        16   production of particular document that we've

        17   just identified on the basis that it wasn't

        18   the final document, correct?

        19        A    That's the -- my understanding of

        20   the legal objection to that, yes.

        21        Q    But you don't know that, do you?

        22        A    I don't know what?


         1        Q    That it wasn't the final version

         2   that was sent over to Chairman Solomon?

         3        A    That's correct.  If it was the

         4   final one, then somebody might have released

         5   it, but this is not the final.  I don't know

         6   what the outcome of that coordination was.

         7        Q    In fact, you never asked, did you?

         8        A    No.

         9        Q    Let's proceed to the document

        10   that's listed as number 49.  What is that?

        11        A    That's what we've just been

        12   discussing. That's the letter from

        13   representative Solomon.

        14        Q    The next document is number 51.

        15   Which one is that?

        16        A    That's a transcript of a press

        17   briefing held by Mr. Bacon on March 26th.

        18        Q    Where is the rest of the press

        19   briefing?  This just appears to be an expert?

        20        A    This is the portion that was

        21   responsive to your subpoena.

        22        Q    Who made that determination?


         1        A    In my files, if I'm correct, I

         2   don't maintain -- you know, a press

         3   conference could be this thick (indicating).

         4   I don't keep the whole thing.

         5        Q    Well, who reviewed this press

         6   briefing and determined what was relevant and

         7   what was not?  Was it you?

         8        A    This was what was in my files that

         9   was responsive.

        10        Q    Who made the determination of

        11   relevance?

        12        A    I'm the one who submitted this

        13   information.

        14        Q    Well, I know you're the one who

        15   technically submitted it, but I'm saying who

        16   decided that just this page was relevant?

        17             MR. QUINLIVAN:  Objection.  It's

        18   been asked and answered.

        19             MR. KLAYMAN:  It hasn't been

        20   answered.

        21             THE WITNESS:  The answer was that

        22   these are the documents that were in my


         1   possession that I submitted.

         2             BY MR. KLAYMAN:

         3        Q    But this isn't the whole document,

         4   is it?

         5        A    This was the document that I

         6   extracted from my files that were -- that I

         7   kept with the other information that you're

         8   seeing.

         9        Q    So you only kept one page,

        10   number 51?

        11        A    There's two pages.

        12        Q    Where is the other page?

        13        A    55 is the -- is another portion of

        14   it.

        15        Q    Do you have in your files today the

        16   entire version of this DOD press briefing?

        17        A    I do not have in my files the

        18   entire version.

        19        Q    Let look at document 56 and 57.

        20   What is that?

        21        A    That's a news article.

        22        Q    Entitled, "Pentagon Admits Leaking


         1   Tripp s Personnel Files"?

         2        A    That's what it's entitled, yes.

         3        Q    The next documents that are

         4   produced?

         5        A    More news articles, news clippings

         6   about the subject.

         7        Q    That's 58 and 59?

         8        A    That's correct.

         9        Q    What is document 60?

        10        A    That was a quote from a question

        11   that was asked of Secretary Cohen at the

        12   National Press Club on the 17th of March.

        13        Q    Who made this document?

        14        A    I did.

        15        Q    Where did you get the quote?

        16        A    I listened to it as the conference

        17   was going on and I typed it up as I was

        18   listening it.

        19        Q    The next set of documents

        20   are 61, 62.  61, this is a press article,

        21   "Defense Department Probes Report of Linda

        22   Tripp Arrest"?


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