198
         1           UNITED STATES DISTRICT COURT
                         DISTRICT OF COLUMBIA
         2
             ------------------------------x
         3   CARA LESLIE ALEXANDER et al., :
                                           :
         4                   Plaintiffs,   :
                                           :
         5                                 :
                            v.             : Civil Action
         6                                 : Nos. 96-2123
             FEDERAL BUREAU OF             :      97-1288 (RCL)
         7   INVESTIGATION et al.,         :
                                           :
         8                   Defendants.   : Volume 2
             ------------------------------x
         9
                                            Washington, D.C.
        10
                                    Thursday, April 30, 1998
        11

        12   Continued Deposition of

        13                CLIFFORD H. BERNATH

        14   a witness, called for examination by counsel

        15   for the Plaintiffs, pursuant to notice and

        16   agreement of counsel, continuing at

        17   approximately 4:37 a.m., at Judicial Watch,

        18   Inc., 501 School Street, S.W., Washington,

        19   D.C., before Shari R. Broussard, notary

        20   public in and for the District of Columbia,

        21   when were present on behalf of the respective

        22   parties:









                                                             199
         1   APPEARANCES:

         2      On behalf of Plaintiffs:

         3         LARRY KLAYMAN, ESQUIRE
                   DON BOSTION, ESQUIRE
         4         Judicial Watch, Inc.
                   501 School Street, S.W., Suite 725
         5         Washington, D.C. 20024
                   (202) 593-8422
         6

         7      On behalf of the White House:

         8         SALLY PATRICIA PAXTON, ESQUIRE
                   Special Associate Counsel to the President
         9         The White House
                   1600 Pennsylvania Avenue, N.W.
        10         Washington, D.C.  20500
                   (202) 456-5079
        11

        12      On behalf of the First Lady:

        13         MAX STIER, ESQUIRE
                   Williams & Connolly
        14         725 Twelfth Street, N.W.
                   Washington, D.C.  20005
        15         (202) 434-5803

        16
                On behalf of the Executive Office of the
        17        President and the FBI:

        18         ELIZABETH J. SHAPIRO, ESQUIRE
                   U.S. Department of Justice
        19         Civil Division
                   Federal Programs Branch, Room 988
        20         901 E Street, N.W.
                   Washington, D.C.  20530
        21         (202) 514-5302

        22









                                                             200
         1   APPEARANCES (CONT'D):

         2      On behalf of the Department of Defense:

         3         BRAD WIEGMANN, ESQUIRE
                   Office of General Counsel
         4         Department of Defense
                   1600 Defense Pentagon
         5         Washington, D.C.  20310
                   (703) 695-3392
         6
                   MARIANE FILICE, ESQUIRE
         7         American Forces Information Service
                   601 N. Fairfax Street
         8         Alexandria, Virginia  22314-2007
                   (703) 428-1204
         9

        10      On behalf of the Witness:

        11         MARK T. QUINLIVAN, ESQUIRE
                   ANNE L. WEISMANN, ESQUIRE
        12         U.S. Department of Justice
                   Federal Programs Branch
        13         901 E Street, N.W.
                   Washington, D.C.  20530
        14         (202) 514-3346

        15      ALSO PRESENT:

        16         Sylvanus Holley
                   Tom Fitton
        17

        18

        19                   *  *  *  *  *

        20

        21

        22









                                                             201
         1                  C O N T E N T S

         2   EXAMINATION BY:                            PAGE

         3      Counsel for Plaintiffs                   203

         4   INSTRUCTIONS TO CERTIFY:

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         6           207          17          287         14

         7           210           6          289         10

         8           213           8          289         22

         9           220           8          290         12

        10           238          13          292         17

        11           252          18          294         10

        12           273          22          303          7

        13           274          21          308         12

        14           275           7          309          6

        15           275          19          315         19

        16           277          19          322         10

        17           278           1          323          5

        18           278           6          323         22

        19           278          12          325         18

        20           285           1          333          1

        21           285          15          350         10

        22           287           4          351          1









                                                             202
         1   INSTRUCTIONS TO CERTIFY (CONT'D):

         2      Page  No.   Line No.     Page No.   Line No.

         3            352          9          367          1

         4            361          4          378         10

         5

         6   BERNATH DEPOSITON EXHIBITS:                PAGE

         7   No. 7 - Jane Mayer Article                  267

         8   No. 8 - Article, The Washingtin Times       291

         9

        10

        11

        12                   *  *  *  *  *

        13

        14

        15

        16

        17

        18

        19

        20

        21

        22









                                                             203
         1               P R O C E E D I N G S

         2   Whereupon,

         3                CLIFFORD H. BERNATH

         4   was recalled as a witness, and having been

         5   previously duly sworn, was examined and

         6   testified further as follows:

         7             VIDEOGRAPHER:  We're back on video

         8   record at 4:27 p.m.

         9             EXAMINATION BY COUNSEL FOR PLAINTIFFS

        10             CONTINUED

        11             BY MR. KLAYMAN:

        12        Q    I'll show you what has been marked

        13   as Exhibit 6.  Exhibit 6 is a copy of the

        14   Privacy Act and I ask you to turn to page

        15   four of six.  This is the Freedom of

        16   Information Act within the context of the

        17   Privacy Act and it states at Subsection B:

        18             "This section does not apply to

        19   matters that are," reading down to subsection

        20   six, "Personnel and medical files and similar

        21   files, the disclosure of which would

        22   constitute a clearly unwarranted invasion of









                                                             204
         1   personal privacy."

         2             Now, Mr. Bernath, you were aware,

         3   were you not, in the course of your training

         4   on the Privacy Act that the Freedom of

         5   Information Act did not apply to personnel

         6   and medical files, correct, your release of

         7   personnel and medical files?

         8        A    Mr. Klayman, let me -- let me

         9   answer the unasked question first.

        10        Q    Well, no I, get to ask the

        11   questions.

        12        A    I get to provide the answers.

        13        Q    Well, no, you don't get to provide

        14   the answers without a question, Mr. Bernath.

        15   You answer this question.

        16        A    Then, no, I have not read this

        17   document and -- and I'm not familiar with the

        18   exact terms of this document.

        19        Q    Are you telling me that in the

        20   course of your training at the Department of

        21   Defense that it was your understanding that

        22   you were permitted to release personnel and









                                                             205
         1   medical files under the Freedom of

         2   Information Act?

         3        A    I'm telling you that I'm not an

         4   expert in the Freedom of Information Act, and

         5   that I do not have this memorized, and I do

         6   not know it paragraph by paragraph.

         7        Q    I'm asking you for your

         8   understanding.  I'm not asking for a legal

         9   opinion.

        10             MR. QUINLIVAN:  I'm going to object

        11   to this question.  The witness has already

        12   testified his answer provides a full and

        13   complete answer to this entire line of

        14   questioning.

        15             BY MR. KLAYMAN:

        16        Q    I'm going to keep asking the

        17   question.  The answer was not responsive to

        18   my question.  My question was, Mr. Bernath,

        19   whether or not it was your understanding,

        20   based on training at the Department of

        21   Defense, that you could release personnel and

        22   medical files to the public?









                                                             206
         1             MR. QUINLIVAN:  I'm going to object

         2   to this question.  Mr. Bernath's knowledge of

         3   the Privacy Act in the context of this

         4   litigation does not have anything to do with

         5   the matter which is the subject of this suit.

         6   The release of information and the context of

         7   which that information was released is

         8   relevant, but his specific knowledge as to

         9   the legal obligations of the Privacy Act is

        10   not at issue in the context of this.

        11             MR. KLAYMAN:  I took the Privacy

        12   Act out of the question.  I asked simply

        13   whether or not, based on your training at the

        14   Department of Defense, before you released

        15   the Tripp information, Form 398, whether you

        16   knew based on that training, that you were

        17   not to release personnel and medical files of

        18   employees of the Department of Defense.

        19             MR. QUINLIVAN:  I'm going to object

        20   as asked and answered.

        21             BY MR. KLAYMAN:

        22        Q    You can respond.









                                                             207
         1        A    My understanding is that nothing in

         2   this act -- nothing in the Privacy Act,

         3   nothing in the Freedom of Information Act is

         4   sacrocyte, nothing is absolute.  There's a

         5   body of law around these.

         6             In terms of personnel records, we

         7   released Ms. Tripp's 171, her personnel

         8   information form, the -- the same form that

         9   is the equivalent of the resume for civilian

        10   employees.  We have released her --

        11             MR. KLAYMAN:  Let me stop.  Who did

        12   you release that to?

        13             MS. WEISMANN:  No.

        14             MR. KLAYMAN:  You can't stop him in

        15   the middle of a question.  You cannot.  I ask

        16   you, Ms. Weismann, to let one counsel handle

        17   this.  You're not to butt in.  Certify this.

        18             MR. QUINLIVAN:  Our objection,

        19   Mr. Bernath is not authorized to respond to

        20   information outside of the release of

        21   information that is the issue of and the

        22   subject of the judge's order.  He is not









                                                             208
         1   authorized to speak to the release of other

         2   information and if you want to go into those

         3   kind of questions, then you can file a 2(e)

         4   request with the Department of Defense under

         5   the appropriate regulations.

         6             MR. KLAYMAN:  Is a Form 171 covered

         7   by the Privacy Act, Mr. Bernath?  Based on

         8   your training and knowledge?

         9             MR. QUINLIVAN:  Excuse me, counsel.

        10   When I'm making an objection, I would

        11   appreciate it if you would not speak over my

        12   objection.

        13             MR. KLAYMAN:  No, in fact, you're

        14   speaking over my question, sir.

        15             MR. QUINLIVAN:  No, in fact,

        16   counsel, I was making an objection and you

        17   were speaking over it. This entire line is

        18   not appropriate.  He is not authorized to

        19   testify as to this matter.

        20             MR. KLAYMAN:  We just went over

        21   with the Court that the Court did not intend

        22   any restriction in its order.









                                                             209
         1             MR. QUINLIVAN:  That is not what

         2   the Court said.  Our understanding of what

         3   the Court said was that because you had not

         4   complied with the (2)(e) regulations, which

         5   are binding on all other parties which seek

         6   the testimony of governmental employees, we

         7   had limited the scope of Mr. Bernath's

         8   testimony to that which was provided for in

         9   the Court's order.

        10             If you wish to seek testimony as to

        11   other matters, you can follow the regulations

        12   set forth by the Department of Defense to

        13   seek that information.  We can then visit

        14   that information and respond to your

        15   accordingly.

        16             MR. KLAYMAN:  Is it your position

        17   that the Court said that its order was

        18   limited to a certain area?  That's what I'm

        19   hearing you say.

        20             MR. QUINLIVAN:  I have stated my

        21   objection.

        22             MR. KLAYMAN:  I want to understand









                                                             210
         1   what it is because you're obstructing this

         2   deposition.

         3             MR. QUINLIVAN:  I have stated my

         4   objection.  I'm not going to engage in legal

         5   colloquy.

         6             MR. KLAYMAN:  Certify it.

         7             You're on notice that we will move

         8   for sanctions for each and every time we do

         9   this and we're going to move against you

        10   personally.

        11             MR. QUINLIVAN:  Mr. Klayman,

        12   attempts at personal intimidation are not

        13   appropriate.

        14             MR. KLAYMAN:  It's not

        15   intimidation.

        16             MR. QUINLIVAN:  Excuse me.

        17             MR. KLAYMAN:  I'm putting you on

        18   notice because you're obstructing this

        19   deposition.  The judge made no such ruling.

        20   He made no such ruling.

        21             MR. QUINLIVAN:  Mr. Klayman, the

        22   judge has made --









                                                             211
         1             MR. KLAYMAN:  I want to know what

         2   your basis is of saying that he did.

         3             MR. QUINLIVAN:  Mr. Klayman, I

         4   stated it once and I will state it again, I'm

         5   not going to engage in a legal colloquy with

         6   you.  The judge has made quite clear in his

         7   orders that all counsel on all sides are to

         8   conduct themselves in a civil and

         9   professional manner and I would suggest that

        10   you not attempt to intimidate the other side

        11   in any way.

        12             MR. KLAYMAN:  I'm putting you on

        13   notice, it's not an intimidation, for each

        14   separate objection where you seek to

        15   interpret this court's order, the scope of

        16   it, you're on notice we will seek sanctions

        17   against you personally and I ask Ms. Weismann

        18   not to interfere in the objections.  We have

        19   one counsel here.  The Court is on record

        20   with regard to how objections are to be

        21   handled.

        22             BY MR. KLAYMAN:









                                                             212
         1        Q    I'm not asking you based on a legal

         2   conclusion, Mr. Bernath.  I'm asking you

         3   whether or not you were trained at the

         4   Department of Defense as to whether or not

         5   you could release personnel and medical files

         6   to the public.

         7             MR. QUINLIVAN:  The same objection

         8   stands.

         9             BY MR. KLAYMAN:

        10        Q    You can respond?

        11             MR. QUINLIVAN:  No.  The witness

        12   has testified on repeated occasions as to

        13   what his understanding of the Privacy Act and

        14   what his training was under these

        15   circumstances.  Specific questions as to his

        16   knowledge of the Privacy Act are not

        17   appropriate.

        18             BY MR. KLAYMAN:

        19        Q    I didn't ask about the Privacy Act.

        20   I asked whether it was your general

        21   understanding, based upon the training you've

        22   received from whatever source of the









                                                             213
         1   Department of Defense as to whether you were

         2   empowered to release personnel and medical

         3   files to the public of employees.

         4        A    I believe I answered the question.

         5        Q    Are you refusing to answer?

         6        A    I already answered.  I'm refusing

         7   to reanswer.

         8             MR. KLAYMAN:  Certify it.

         9             THE WITNESS:  There is an answer.

        10   May I request that they reread the answer?

        11             MR. KLAYMAN:  Not if you're

        12   refusing to answer.  What's the point?

        13             MR. QUINLIVAN:  Yes.

        14             BY MR. KLAYMAN:

        15        Q    Are you refusing to answer?

        16        A    You asked the question.  I answered

        17   the question.

        18        Q    I'll ask it again.  I'll withdraw

        19   the question.

        20        A    We can --

        21        Q    I'll withdraw the question.  I want

        22   to move the thing along.









                                                             214
         1             Based on your training at the

         2   Department of Defense, was it your

         3   understanding that you were empowered to

         4   release personnel and medical files of

         5   Department of Defense employees?

         6             MR. QUINLIVAN:  Before the witness

         7   answers a moment, please.  We will allow the

         8   witness to answer this question.  We are

         9   stating our objection we think this is far

        10   afield from what was the subject of the

        11   Court's order and far afield from that which

        12   was authorized by the Department that the

        13   witness can testify to.  We'll allow the

        14   witness to answer this question.

        15             BY MR. KLAYMAN:

        16        Q    Please answer it.

        17        A    My understanding is that -- that

        18   personnel -- first of all, this is the

        19   Freedom of Information Act that says that you

        20   don't have to release this information.  This

        21   is not the Privacy Act.

        22             My information is that -- my









                                                             215
         1   understanding is that some information --

         2   that not any -- there's no one class of

         3   information that is always, always exempt.

         4   There is always discussion on what's

         5   releasable and what's not releasable.  So

         6   I -- we do release some personnel

         7   information.

         8        Q    Are you saying that you can release

         9   whatever information you deem appropriate

        10   with regard to a living employee without

        11   getting his or her permission?

        12        A    That is not what I'm saying.  I'm

        13   saying there is no body of information that

        14   is absolutely protected and so a

        15   determination is made in each case.

        16        Q    Well, what is the normal procedure?

        17   What is the usual procedure?  If you're going

        18   to release information out of a personnel

        19   file of an employee, is the procedure in the

        20   Department of Defense to get that employee's

        21   permission?

        22        A    Not necessarily.









                                                             216
         1        Q    What's the criteria?  What do you

         2   mean by not necessarily?

         3        A    I don't know that there is a --

         4   that there is a written policy on this.

         5   In -- the norm is that we would consult with

         6   counsel and -- and get a reading.

         7        Q    You didn't consult with counsel

         8   with regard to Ms. Tripp, did you?

         9        A    This was not the norm, that's

        10   correct.

        11        Q    Now, when you say not necessarily,

        12   are you saying that there are really no

        13   criteria, you can do whatever you want?

        14        A    That is not what I said.

        15        Q    Then what are the criteria?

        16        A    I said the criteria is that when we

        17   have a question, we go to the general

        18   counsel.

        19        Q    Let's talk about Ms. Tripp.  You

        20   released her Form 398, correct?

        21        A    No, that is incorrect.  I --

        22        Q    What did you release with regard to









                                                             217
         1   Ms. Tripp?

         2             MR. QUINLIVAN:  I'm going to object

         3   to this question.  Without making a

         4   determination as to whether or not the

         5   release of this information would violate the

         6   Privacy Act, we are making a protective

         7   objection that this information may be

         8   subject to the Privacy Act.

         9             BY MR. KLAYMAN:

        10        Q    What did you release with regard to

        11   Ms. Tripp?  What did you give Ms. Mayer or

        12   anyone else with regard to Ms. Tripp?

        13             MR. QUINLIVAN:  I'm going to object

        14   to this to the extent it asks him to reveal

        15   the specific information that was revealed to

        16   Ms. Mayer without reserving our right or

        17   without taking a position as to whether or

        18   not that would be a violation of the Privacy

        19   Act.

        20             BY MR. KLAYMAN:

        21        Q    You may respond.

        22             MR. QUINLIVAN:  No, I've said that









                                                             218
         1   we're objecting and directing the witness not

         2   to respond to the specific information that

         3   was released.

         4             BY MR. KLAYMAN:

         5        Q    Generically, what type of

         6   information did you release with regard to

         7   Ms. Tripp?  Not what it actually said, but

         8   what type?

         9        A    Is that okay?  Information

        10   pertaining to past arrests or convictions.

        11        Q    Did you release anything in

        12   addition to that?

        13        A    No.

        14        Q    Did that information come from her

        15   Form 398?

        16        A    Yes.

        17        Q    Now, what was the criteria, if any,

        18   used to decide whether or not to release that

        19   information?

        20        A    I have to put that in the context

        21   of the circumstances.  This -- this was in

        22   the course of the day, in the course of the









                                                             219
         1   week, in the course of the month, a very

         2   small action in our minds.

         3             In retrospect, a lot of things are

         4   different, but in the course of the day in

         5   the course of responding to many questions

         6   and doing many other things other than this,

         7   this was a fairly routine question in terms

         8   of information that had been asked and

         9   answered to the media in regards to

        10   Ms. Tripp, Ms. Lewinsky and people involved.

        11             So this did not, for whatever

        12   reason, but that reason is -- has nothing to

        13   do with politics, for whatever reason, this

        14   did not trigger anybody thinking in terms of

        15   this is bad information.  This is a person

        16   who has -- who has indicated that nothing

        17   has -- has happened.

        18        Q    What do you mean this is a person

        19   who's indicated nothing has happened?

        20        A    Well, now I'm into the --

        21             MR. QUINLIVAN:  Do you want to

        22   confer with counsel?









                                                             220
         1             BY MR. KLAYMAN:

         2        Q    What do you mean by a person who

         3   indicated nothing has happened?

         4        A    Excuse me.

         5             MR. KLAYMAN:  Objection to the

         6   extent you're getting any testimony from

         7   counsel.  I want an unfettered response.

         8   Certify it.

         9             MR. QUINLIVAN:  We're requesting a

        10   break.

        11             MR. KLAYMAN:  Well, we're not

        12   granting a break.  Walk out, okay, we will

        13   move for sanctions.

        14             I object to this consultation.  The

        15   question stems from his own question what he

        16   meant.

        17                  (Witness conferred with counsel)

        18             MR. QUINLIVAN:  We're going to

        19   object to this question to the extent it asks

        20   the witness to reveal the specific

        21   information regarding Ms. Tripp that was the

        22   subject of my earlier objection.









                                                             221
         1             MR. KLAYMAN:  Why was it necessary

         2   to consult with the witness while I had a

         3   question pending to come to that objection?

         4             THE WITNESS:  Because I had a

         5   question.  So the answer is that we felt that

         6   there was no negative information released.

         7             BY MR. KLAYMAN:

         8        Q    The fact that she had been arrested

         9   before was not negative information?

        10        A    That was not the question that was

        11   asked and that was not the information that

        12   was released.  We had no -- we -- that was

        13   not the question, that was not the answer.

        14        Q    What was the question that was

        15   asked?

        16        A    The question that was asked was on

        17   the security form there and it was --

        18             MR. QUINLIVAN:  Let me just object

        19   and caution the witness that to the extent

        20   he's responding to this question he's not to

        21   reveal the specific question that is the

        22   subject or the specific information that was









                                                             222
         1   in Ms. Tripp's form.

         2             MR. KLAYMAN:  Mr. Quinlivan, that

         3   is absurd.  I never asked that question.  I

         4   asked what was the question that was asked.

         5             MR. QUINLIVAN:  I understand.

         6             MR. KLAYMAN:  You're just

         7   obstructing this deposition.  We've now taken

         8   up 20 minutes with these objections, which

         9   are not only unfounded, but they're not even

        10   in response to my questions.

        11             BY MR. KLAYMAN:

        12        Q    What was the question that was

        13   asked?

        14        A    The questions that were asked were

        15   on the 398 and it concerned how she had

        16   marked her -- the answers to the questions

        17   had she ever been arrested, had she ever been

        18   convicted.

        19        Q    Who asked the questions?

        20        A    Ms. Mayer.

        21        Q    Now, how did Ms. Mayer know to ask

        22   questions off of a 398?  Do you have









                                                             223
         1   knowledge as to that?

         2        A    I have no idea, no knowledge.

         3        Q    Did she tell you that she had

         4   possession of a Form 398 of Ms. Tripp's?

         5        A    No, she did not.

         6        Q    If she didn't have the 398, she

         7   couldn't have asked the questions, could she?

         8        A    I don't know how Ms. Mayer got her

         9   information.  I'm sorry.

        10        Q    You gave her the 398 form?

        11        A    I did not give her the 398 form.

        12        Q    Did Mr. Bacon give her the 398

        13   form?

        14        A    He did not give her the 398 form.

        15        Q    Did somebody else at the Department

        16   of Defense give the 398 form to Ms. Meyer?

        17        A    I'm not aware of anybody at the

        18   Department of Defense giving her any

        19   documents.

        20        Q    You testified earlier that whether

        21   or not Ms. Mayer had been arrested you don't

        22   consider to be negative information, correct?









                                                             224
         1        A    Are you referring to Ms. Tripp?

         2        Q    Ms. Tripp.  I'm sorry.

         3        A    That is not what I testified.

         4        Q    In your opinion, is giving that

         5   information that someone has been arrested

         6   positive for that person?

         7        A    Once again, I never gave out any

         8   information about whether she was arrested or

         9   not.  That is not the information that I

        10   provided.

        11        Q    What information did you provide?

        12   Generically speaking.

        13        A    I provided the answers that she

        14   provided on that form.

        15        Q    What answers were they?

        16             MR. QUINLIVAN:  That is the subject

        17   of my earlier objection.

        18             MR. KLAYMAN:  Is it your position

        19   it's okay to give that information to

        20   Ms. Jane Mayer, reporter of New Yorker, but

        21   he doesn't have to testify about it here

        22   today?









                                                             225
         1             MR. QUINLIVAN:  My position is that

         2   I'm instructing the witness not to respond to

         3   that question.  I am not accepting any of

         4   your characterizations.

         5             MR. KLAYMAN:  Well, he's taking the

         6   position that the information he provided to

         7   Ms. Mayer was not a violation of the Privacy

         8   Act, correct?  Now, how is it that you're now

         9   instructing him not to answer under those

        10   circumstances?

        11             MR. QUINLIVAN:  The objection

        12   stands.  I'm not going to engage in further

        13   colloquy.  I've explained the basis of our

        14   objection.  You have that information.

        15             MR. KLAYMAN:  Certify it.

        16             Is it because you're representing

        17   Secretary of Defense Cohen and not this

        18   witness?  Is that the basis of your

        19   objection?

        20             MR. QUINLIVAN:  I'm not going to

        21   respond to that question.  I'm not under oath

        22   and I am not being deposed.









                                                             226
         1             MR. KLAYMAN:  I'm asking you to

         2   give me a proffer so we can then approach the

         3   Court.

         4             MR. QUINLIVAN:  I have given and

         5   stated the basis of our objection to you.

         6   I've done it on at least two occasions.

         7             MR. KLAYMAN:  How is that you're

         8   representing his interest in instructing him

         9   not to answer if he says providing that

        10   information didn't violate the Privacy Act?

        11             MR. QUINLIVAN:  I'm not going to

        12   engage in any further colloquy on this

        13   subject.

        14             MR. KLAYMAN:  Certify it.

        15             BY MR. KLAYMAN:

        16        Q    In preparation for this deposition

        17   did you meet with any White House counsel,

        18   lawyers in the White House?

        19        A    No.

        20        Q    Throughout the course of this

        21   deposition have you talked to Ms. Paxton

        22   about your testimony?









                                                             227
         1        A    No.

         2        Q    After we broke for lunch did you

         3   discuss your testimony this morning with

         4   counsel?

         5        A    No.

         6        Q    Not one aspect of your testimony?

         7        A    No.

         8        Q    Turn to page 39 of Exhibit 4.

         9        A    I don't have my copies.  I left

        10   those with the --

        11        Q    What is the document that appears

        12   in number 39?

        13        A    This is a public affairs guidance

        14   concerning questions on the 398.

        15        Q    Who prepared this document?

        16        A    I did.

        17        Q    Did you prepare it before you

        18   released the information about Ms. Tripp?

        19        A    No.

        20        Q    When did you prepare it?

        21        A    After.

        22        Q    How long after?









                                                             228
         1        A    The same day.

         2        Q    Why did you prepare it?

         3        A    Because whenever we provide

         4   information to the media, we let the rest of

         5   the public affairs officers know so that

         6   everybody know what's information they can

         7   put out.

         8        Q    Was this sent as an E-mail?

         9        A    No.

        10        Q    How was it prepared?

        11        A    It was prepared on a computer and

        12   printed and Xeroxed and given to people.

        13        Q    Who was it given to?

        14        A    I don't know the distribution of

        15   it.  It was given to the people in -- in our

        16   press room, the Director for Defense

        17   Information, but I do not know who got it

        18   specifically.

        19        Q    It says, "RTQ regarding Tripp's

        20   security clearance and charge that she lied

        21   on question about being arrested."  What does

        22   RTQ mean?









                                                             229
         1        A    Response to query.  That means if

         2   asked, this is the response that we would

         3   provide.

         4        Q    Was this the question that was

         5   asked by Mr. Jane Mayer before you provided

         6   this document?

         7        A    This is the -- these are the

         8   questions that she referred to, yes.

         9        Q    I take it she did ask whether

        10   Ms. Mayer had lied about being arrested.

        11        A    No.

        12        Q    Right, whether Ms. Tripp had lied

        13   about being arrested?

        14        A    No, she had not -- she did not ask

        15   that.  She asked how Ms. Tripp answered the

        16   specific questions.  She did not ask if she

        17   lied or told the truth.

        18        Q    When did you first hear from

        19   Ms. Mayer?

        20        A    About 9 o'clock in the

        21   morning, 9:30, in that -- in that time frame,

        22   on whatever that Friday morning was.









                                                             230
         1   The 14th or whatever that Friday was.

         2        Q    Do you want to consult a calendar?

         3        A    Please.

         4        Q    Can you give him a calendar?

         5        A    Can we establish some place what

         6   day I talked to her?

         7        Q    I just want to ask you the question

         8   based on the calendar first.

         9        A    March 13th, Friday.

        10        Q    Friday the 13th?

        11        A    (Nodding)

        12        Q    Did Ms. Mayer call you or did you

        13   call her?

        14        A    She had -- she had called Mr. Bacon

        15   the night before and I returned the call that

        16   morning.

        17        Q    How do you know she called

        18   Mr. Bacon the night before?

        19        A    Because she told me.

        20        Q    When did he tell you that?

        21        A    The night before.

        22        Q    Where did she call him?  At the









                                                             231
         1   Pentagon or called him at home?

         2        A    No, at the Pentagon.

         3        Q    When did Mr. Bacon advise you that

         4   she had called?  Was it that night or the

         5   following morning?

         6        A    No, that night.  We were both there

         7   at about 7:30.

         8        Q    Were you in Mr. Bacon's office when

         9   she called?

        10        A    No, I was not.  No.

        11        Q    Did he come to see you after she

        12   called or did you call him on the phone?

        13        A    No, I was out of town during the

        14   day.  I got back and when I got back, I went

        15   to his office to check in to see what was

        16   going on.

        17        Q    What did he tell you?

        18        A    He told me that he had received a

        19   call from Jane.

        20        Q    Jane Mayer from the New Yorker.

        21        A    Jane Mayer.  That she had asked how

        22   Ms. Tripp had answered two questions on -- on









                                                             232
         1   the security form.  He told me that she

         2   indicated that she may have information that

         3   there was -- that Ms. Tripp may have had a

         4   problem when she was young and he told me

         5   that he had already discussed -- he had

         6   discussed the query with DOC Cooke,

         7   Mr. Cooke, in the Pentagon.

         8             Then he asked me then to call

         9   Mr. Cooke in the morning to see if Mr. Cooke

        10   had obtained the information and then to

        11   follow-up with Ms. Mayer.

        12        Q    To give Ms. Mayer the information?

        13        A    Yes.

        14        Q    So he instructed you to give

        15   Ms. Mayer the information?

        16        A    I think that he -- he asked me to

        17   get the information and discuss it with him

        18   and then it was later that we determined that

        19   that I would call her back.

        20        Q    But he instructed you to give

        21   Ms. Mayer the information once you got it?

        22        A    Once I -- yes, once I got it he









                                                             233
         1   asked me to return the call.

         2        Q    To give her the information?

         3        A    Yes.

         4        Q    Now, having worked for the

         5   Pentagon, you considered that to be an order,

         6   didn't you?

         7        A    No, not in that respect.  Yes, I

         8   took it as a -- as something that I should

         9   do, but had I disagreed with it, had I had a

        10   reason to object to it, I would have done

        11   that.  I didn't have a reason to object to

        12   it.

        13        Q    You didn't object to it because you

        14   were the good soldier?

        15        A    No, it was because I didn't have

        16   any reason to object to it.

        17        Q    So you agreed with Mr. Bacon's

        18   decision to give the information to

        19   Ms. Mayer?

        20        A    Yes.

        21        Q    Was there anyone else who agreed

        22   with that decision?  DOC Cooke, did he agree









                                                             234
         1   with that decision?

         2        A    I can't speak for DOC Cooke.  He --

         3   there was no objection raised, but he would

         4   have no reason to object.

         5        Q    What was DOC Cooke's position at

         6   the time?

         7        A    He was the director of

         8   administration and management in the

         9   Pentagon, in the Washington headquarters.

        10        Q    As such, what were his duties and

        11   responsibilities?

        12        A    He is the head administrator in

        13   the -- in the Office of the Secretary of

        14   Defense, personnel, logistics, security,

        15   almost all of support type functions.

        16        Q    He works directly underneath the

        17   Secretary of Defense?

        18        A    Yes.

        19        Q    He takes instructions from the

        20   Secretary of Defense?

        21        A    I doubt -- I don't know how much.

        22   I doubt that he goes to the Secretary of









                                                             235
         1   Defense all the time for -- for advice and

         2   instruction.

         3        Q    But his ultimate superior is the

         4   Secretary of Defense?

         5        A    That's correct.

         6        Q    He reports to the Secretary of

         7   Defense?

         8        A    That's correct.

         9        Q    Is there anybody between him and

        10   the Secretary of Defense in the reporting

        11   process?

        12        A    Not that I'm aware of.

        13        Q    Mr. Cooke wouldn't do anything in

        14   terms of releasing information about the

        15   Pentagon employee without the permission of

        16   the Secretary of Defense, would he?

        17        A    That's not true.  Mr. Cooke did not

        18   release the information.

        19        Q    But he went and got it, didn't he?

        20        A    No, he enabled me to get it.

        21        Q    How did he in enable you to get it?

        22        A    The people who have the information









                                                             236
         1   work for him.

         2        Q    Who are the people that had the

         3   information?

         4        A    I answered that earlier Mr. O'Toole

         5   and Mr. -- whoever it was who I said worked

         6   for the Defense Investigative Service.

         7        Q    So DOC Cooke told you that he had

         8   ordered them to get the information for you?

         9        A    No, DOC Cooke told them to make the

        10   information available for me.

        11        Q    Is that command in a written

        12   communication?

        13        A    No.

        14        Q    DOC Cooke told you that?

        15        A    Yes.

        16        Q    When did you meet with DOC Cooke

        17   following your conversation with Mr. Bacon?

        18        A    The next morning.

        19        Q    Did you meet with him in his

        20   office?

        21        A    Yes.  I spoke to him on the phone

        22   once and then went to his office once.









                                                             237
         1        Q    So you called him and told him you

         2   wanted to see him the following morning?

         3        A    The first call was a follow-up to

         4   Ms. Bacon's call from the night before asking

         5   if he had a chance to get the information.

         6   He hadn't yet and when he had it, I went up

         7   to his office.

         8        Q    Just to clarify, was it your

         9   understanding when you met with Mr. Bacon the

        10   night before that Mr. Bacon had requested DOC

        11   Cooke to get the information about Ms. Tripp?

        12        A    Yes.

        13        Q    It was based on that understanding

        14   that you called DOC Cooke the next morning?

        15        A    Yes.

        16        Q    You went up to see DOC Cooke?

        17        A    Yes.

        18        Q    Who spoke first?  You or DOC Cooke?

        19        A    I don't remember.

        20        Q    What did DOC Cooke say to you

        21   during that encounter?

        22        A    That he had -- it was partial









                                                             238
         1   information.  He had information from

         2   the 171.  At the bottom of that form it asks

         3   a similar questions about felonies or --

         4   again, I don't remember the wording exactly,

         5   but he indicated that she had answered --

         6             MR. QUINLIVAN:  I want to caution

         7   the witness that he is not to reveal the

         8   specific information that was revealed

         9   subject to my earlier objection.  Subject to

        10   that limitation the witness can respond to

        11   the question.

        12             MR. KLAYMAN:  Same objection to

        13   your interrupting his answer.  Certify it.

        14             THE WITNESS:  So he indicated what

        15   was on that -- that form there.

        16             Since the specific question that

        17   came from Ms. Mayer was regarding her

        18   security form, I asked him then if we could

        19   look at her security form and that's when he

        20   referred me to Mr. O'Toole and to this -- I

        21   just can't remember his name from DIS.

        22             BY MR. KLAYMAN:









                                                             239
         1        Q    The security form is what number?

         2        A    398.

         3        Q    So initially it was Form 171 that

         4   was provided to you?

         5        A    Information from the 171, yes.

         6        Q    What type of information is

         7   contained on a 171?

         8        A    It's the civilian personnel

         9   equivalent of a resume.  It's all the past

        10   jobs that they've had in the government.

        11        Q    That is also part of the employee's

        12   personnel file, is it not?

        13        A    It is in the file.  I -- it is not

        14   something -- well, it is.  It's something

        15   that everybody gives out just like a resume.

        16        Q    But it's kept in the personnel

        17   file?

        18        A    Yes.

        19        Q    It's considered to be a part of the

        20   personnel file?

        21        A    A copy of it is, yes.

        22        Q    The information on the 171, is what









                                                             240
         1   you're saying, was not sufficient to answer

         2   Ms. Mayer's question?

         3        A    That's correct.

         4        Q    So, therefore, you requested of DOC

         5   Cooke to be able to get the Form 398, right?

         6        A    That's correct.

         7        Q    What did DOC Cooke respond to you

         8   in response to your request?

         9        A    He sent me to Mr. O'Toole.

        10   Mr. O'Toole had some information, but the 398

        11   was not part of it.  He referred me to the

        12   Defense Security Services, DSS, and they had

        13   the form.

        14        Q    DOC Cooke during that meeting said

        15   it was all right for you to get that form, to

        16   give the information on it to Ms. Mayer?

        17        A    He said that it was all right for

        18   me to get the form.  He didn't comment on

        19   what I could or could not do with it.

        20        Q    But he didn't tell you not to give

        21   any information to Ms. Mayer on that form?

        22        A    That's correct.









                                                             241
         1        Q    DOC Cooke knew that you were

         2   seeking information for Ms. Mayer?

         3        A    I don't know what -- what Ken Bacon

         4   old DOC Cooke.  Again, I didn't discuss it

         5   with him.

         6        Q    But you informed DOC Cooke that you

         7   were seeking the information to answer an

         8   inquiry from the media, were you not?

         9        A    No, I never did do that.  All I did

        10   was follow-up on Ken Bacon's call and -- and

        11   there was the understanding of what he was

        12   getting.  So I never did say to DOC Cooke

        13   what I was doing.

        14        Q    At the time you assumed that Ken

        15   Bacon had told DOC Cooke why the information

        16   was being sought?

        17        A    I didn't assume that.  I just

        18   assumed what Ken Bacon told me, that he had

        19   called DOC and asked him about this

        20   information.  I don't know the details of

        21   what that conversation was.

        22        Q    Did you ask for anything from DOC









                                                             242
         1   Cooke in addition to the 398 and the 171?

         2        A    No.

         3        Q    Did there come a point in time when

         4   the information from the Form 398 became

         5   available to you?

         6        A    Yes.

         7        Q    When was that?

         8        A    It was around noon, maybe a little

         9   later.

        10        Q    How did it come into your

        11   possession?

        12        A    The DSS faxed it to me.

        13        Q    What's the DSS?

        14        A    Defense Security Service.

        15        Q    Are there any types of guidelines

        16   or regulations inside the Department of

        17   Defense that concern faxing material out of

        18   the personnel file?

        19        A    I am not aware of it.  It's outside

        20   of my area of knowledge.  I don't know.

        21        Q    During the time that you worked for

        22   the Department of Defense did you become









                                                             243
         1   aware of any information out of a personnel

         2   file that was faxed to the wrong addressee?

         3        A    I don't have any personal knowledge

         4   of it.

         5        Q    Who faxed it to you in terms of an

         6   individual?

         7        A    It's Mr. Hale, if I had the -- let

         8   me see.  Maybe I have it.  It's on the form.

         9   I'm sorry.  Maybe it's not part of it.  I

        10   don't remember his name.  It was Hal, I

        11   believe, something.

        12        Q    Hale?

        13        A    Hal, H-a-l.

        14        Q    Hal, H-a-l, Howard?

        15        A    No, Hal.

        16        Q    David Hale?

        17             MS. SHAPIRO:  H-a-l.

        18             BY MR. KLAYMAN:

        19        Q    H-a-l.  He worked in DSS?

        20        A    Yes, it's -- it used to be DIS,

        21   Defense Investigative Service and now it's

        22   Defense Security Service.









                                                             244
         1        Q    DSS?

         2        A    Yes.

         3        Q    Where are they located?

         4        A    I don't know where they're

         5   physically located.

         6        Q    When you received that fax,

         7   Form 398, what did you do with it?

         8        A    I took it in and discussed it with

         9   Mr. Bacon.

        10        Q    What did you discuss with

        11   Mr. Bacon?

        12        A    I said these are the -- this is how

        13   she answered it.

        14        Q    What did you tell him?

        15             MR. QUINLIVAN:  Let me just repeat

        16   my cautionary objection that the witness not

        17   reveal the substance of the information on

        18   the 398 form.  Subject to that limitation the

        19   witness can respond to the answer.

        20             THE WITNESS:  I showed him the

        21   answers.  I showed him form and I showed him

        22   the answers.









                                                             245
         1             BY MR. KLAYMAN:

         2        Q    What did he say?

         3        A    Then I said do you want to call her

         4   back or should I and he said why don't you do

         5   it.

         6        Q    Did he tell you why he wanted you

         7   to do it?

         8        A    No, it's just he was busy doing

         9   something else.

        10        Q    At the time that he asked you to do

        11   it did you think maybe he's having me do this

        12   so if I get caught, I take the blame?

        13        A    No, absolutely not.  Absolutely

        14   not.  This is -- it just did not occur that

        15   this was anything out of the normal and

        16   that's the best answer I can give you.

        17   That's the most honest answer I can give you.

        18        Q    Now, you're saying this wasn't

        19   anything out of the normal.  Is what you're

        20   saying that the whole Lewinsky/Tripp

        21   controversy was nothing unusual?

        22        A    No, that is not what I'm saying.









                                                             246
         1        Q    Do you consider that controversy to

         2   be unusual?

         3        A    What I'm saying is that --

         4        Q    Answer that question.

         5        A    We release a lot of information and

         6   this did not seem out of the ordinary at the

         7   time and in terms of -- of everything that

         8   was going on and a lot of -- lot of -- doing

         9   a lot of things that day, this was one minor

        10   thing that we did.  It did not register with

        11   either of us that this was out of the

        12   ordinary.  Should it have, that's a different

        13   question, but it didn't and there is nothing

        14   more sinister in it than that.

        15        Q    Is what you're saying that the

        16   whole issue concerning Monica Lewinsky and

        17   Linda Tripp is nothing out of the ordinary?

        18        A    That is not what I'm saying.  I've

        19   answered a specific question.

        20        Q    Well, let me ask you with regard to

        21   that.  Do you consider that controversy to be

        22   out of the ordinary for the Pentagon, both of









                                                             247
         1   them having worked in your office?

         2        A    Certainly unusual.

         3        Q    Why is it unusual?

         4        A    Because both of them worked in my

         5   office.  Is it unusual for the Pentagon to be

         6   involved in -- in newsworthy things when we

         7   have so many -- so many issues that are in

         8   the news every day, that's not unusual.  This

         9   is unusual because both of them were in

        10   public affairs.

        11        Q    I want to ask the question again as

        12   to what were the qualifications of

        13   Ms. Lewinsky to be hired.  Can I ask that

        14   question and get a response?

        15             MR. QUINLIVAN:  No.  If you would

        16   like to ask that question, you can follow the

        17   appropriate (2)(e) regulations and set forth

        18   with specificity the subject matter that

        19   you're seeking to request testimony about and

        20   the Department can consider that in the

        21   ordinary course, as it does with all other

        22   requests for the testimony of governmental









                                                             248
         1   employees.

         2             MR. KLAYMAN:  My previous

         3   objections to that position stand.  I just

         4   wanted to see whether you will now let him

         5   answer.

         6             BY MR. KLAYMAN:

         7        Q    What else did Mr. Bacon say to you

         8   when you showed him the 398?

         9        A    Nothing.

        10        Q    You then called Ms. Mayer back?

        11        A    I did.

        12        Q    How long after the meeting did you

        13   call her back?

        14        A    I did it immediately after the

        15   meeting.

        16        Q    When did you call her?  Where was

        17   she at the time?

        18        A    I believe she was in her office.

        19        Q    In what city?

        20        A    I have no idea.  I mean I don't

        21   remember the phone number or anything.  I

        22   just -- I had a number to call and I called









                                                             249
         1   it.  I don't remember.

         2        Q    What phone extension did you use to

         3   make the call?

         4        A    My phone.

         5        Q    What extension is that?

         6        A    It's got six or seven different

         7   extensions, so --

         8        Q    That's fine.  Can you tell me what

         9   they are?

        10        A    I could -- well, I mean I

        11   could -- 697-0713, 697-9312, 13, 14, and then

        12   there's two others that I almost never use.

        13   But it always depends -- it's a rotary some

        14   of them are rotary, so you pick up the line.

        15   I don't remember which line lit up at the

        16   time I picked up the phone.

        17        Q    What are the two other extensions?

        18        A    I don't know.

        19        Q    What did you discuss with Ms. Mayer

        20   when you spoke with her?  Did you get her on

        21   the phone?

        22        A    I did get her on the phone.  I gave









                                                             250
         1   her the answers to the questions that she

         2   asked.

         3        Q    What did she tell you, if anything?

         4        A    She said what if I had information

         5   that that information is not true and I said

         6   that would be a serious circumstance and it

         7   would have to be investigated.

         8        Q    Was anything else discussed?

         9        A    She asked me to read the questions

        10   again to make sure that she had the correct

        11   wording of the questions themselves on the

        12   form.

        13        Q    Are these the questions that are

        14   listed on Bates Stamp 39?

        15        A    Right.

        16        Q    Now, she had asked you the

        17   question, did she not, whether Ms. Tripp had

        18   lied that she had ever been arrested?

        19        A    No, she never asked that question.

        20   She asked how she answered the question on

        21   that form.

        22        Q    Did she tell you that she had

 

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