51 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 52 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: 53 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 54 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 55 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. 56 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 57 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." 58 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 59 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 60 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: 61 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 62 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. 63 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? 64 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. 65 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 66 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. 67 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 68 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 69 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. 70 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 71 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? 72 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. 73 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 74 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? 75 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) 76 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 77 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, 78 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 79 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. 80 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? 81 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 82 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? 83 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 84 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 85 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. 86 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. 87 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 88 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 89 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 -- 90 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. 91 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 92 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? 93 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. 94 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. 95 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 96 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? 97 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? 98 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 99 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 100 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"?
of this deposition