384 1 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA 2 -------------------------x 3 CARA LESLIE ALEXANDER : et al., : 4 : Plaintiffs : 5 : v. : Civil No. 96-2123 (RCL) 6 : FEDERAL BUREAU OF : 7 INVESTIGATION et al., : : 8 Defendants. : Volume 2 -------------------------x 9 10 Washington, D.C. 11 Thursday, June 10, 1999 12 Continued deposition of 13 CLIFFORD H. BERNATH 14 a witness, called for examination by counsel 15 for Defendants, pursuant to notice and 16 agreement of counsel, beginning at 17 approximately 10:09 a.m. at the Offices of 18 Judicial Watch, Inc., 501 School Street S.W., 19 Washington, D.C., before Joan V. Cain of Beta 20 Reporting & Video Services, notary public in 21 and for the District of Columbia, when were 22 present on behalf on the respective parties: 385 1 APPEARANCES: 2 On behalf of Plaintiffs: 3 LARRY KLAYMAN, ESQUIRE PAUL ORFANEDES, ESQUIRE 4 Judicial Watch, Inc. 501 School Street S.W., Suite 725 5 Washington, D.C. 20024 (202) 646-5172 6 On behalf of Defendants Federal Bureau of 7 Investigation and Executive Office of the President: 8 JULIA FAYNGOLD COVEY, ESQUIRE 9 Federal Programs Branch Civil Division 10 United States Department of Justice 901 E Street N.W., 9th Floor 11 Washington, D.C. 20004 (202) 514-5302 12 On behalf of Defendant Hillary Rodham Clinton: 13 PAUL B. GAFFNEY, ESQUIRE 14 Williams & Connolly 725 12th Street N.W. 15 Washington, D.C. 20005 (202) 434-5000 16 On behalf of Defendant Department of Defense: 17 DAVID ZARING, ESQUIRE 18 ANNE L. WEISMANN, ESQUIRE Federal Programs Branch 19 Civil Division United States Department of Justice 20 901 E Street, Northwest, Room 1034 Washington, D.C. 20530 21 (202) 514-3395 22 386 1 APPEARANCES (CONT'D): 2 On behalf of Defendant Department of Defense (cont'd): 3 BRAD WIEGMANN, ESQUIRE 4 Office of General Counsel United States Department of Defense 5 1600 Defense Pentagon, Room 3C975 Washington, D.C. 20301-1600 6 (703) 695-3392 7 On behalf of Deponent: 8 WILLIAM J. HARDY, ESQUIRE Karalekas & Noone 9 1211 Connecticut Avenue N.W., Suite 302 Washington, D.C. 20036-2603 10 (202) 466-7330 11 ALSO PRESENT: 12 Thomas Fitton Emily Bazelon 13 14 15 * * * * * 16 17 18 19 20 21 22 387 1 C O N T E N T S 2 EXAMINATION BY: PAGE 3 Counsel for Plaintiffs 389 4 BERNATH DEPOSITION EXHIBITS: 5 No. 1 - Subpoena, Attachments 390 6 No. 2 - Letter, Zaring to Klayman, 403 Attachments 7 No. 3 - Fax, Zaring to Klayman, 482 8 Attachment 9 No. 4 - Letter, Hardy to Klayman, 484 Attachments 10 No. 5 - Redacted Messages 519 11 No. 6 - Broadcast Transcript 581 12 No. 7 - October 14, 1998, Letter, 606 13 Lawsky to Klayman, Attachments 14 No. 8 - May 6, 1998, Letter, Lawsky 608 15 to Klayman, Attachments 16 17 * * * * * 18 19 20 21 22 388 1 P R O C E E D I N G S 2 THE VIDEOGRAPHER: Good morning. 3 This is the continuing deposition, Volume 2, 4 of Clifford Bernath, taken by the counsel for 5 Plaintiffs in the matter of Cara Leslie 6 Alexander, et al. v. Federal Bureau of 7 Investigation et al., Case No. 96-2123, on 8 this date, June 10, 1999, at the time 9 indicated on the video screen which is 10:04 10 a.m. 11 Will counsel introduce themselves? 12 MR. KLAYMAN: Larry Klayman, 13 chairman and general counsel of Judicial 14 Watch. 15 MR. FITTON: Tom Fitton, president, 16 Judicial Watch. 17 MR. HARDY: Bill Hardy, Karalekas & 18 Noone, counsel for Mr. Bernath. 19 MR. ZARING: David Zaring, Justice 20 Department, counsel for Mr. Bernath in his 21 official capacity. 22 MS. WEISMANN: Anne Weismann, 389 1 Justice Department, counsel for Department of 2 Defense and Mr. Bernath in his official 3 capacity. 4 MS. COVEY: Julia Fayngold Covey, 5 Department of Justice, representing Executive 6 Office of the President and the FBI. 7 MR. WIEGMANN: Brad Wiegmann, 8 Department of Defense. 9 MR. GAFFNEY: Paul Gaffney, 10 Williams & Connolly, on behalf of the First 11 Lady. With me is Emily Bazelon, summer 12 associate. 13 THE VIDEOGRAPHER: Will the court 14 reporter please swear in the witness? 15 Whereupon, 16 CLIFFORD H. BERNATH 17 was called as a witness and, having been 18 first duly sworn, was examined and testified 19 as follows: 20 EXAMINATION BY COUNSEL FOR PLAINTIFFS 21 BY MR. KLAYMAN: 22 Q Please state your name. 390 1 A Clifford H. Bernath. 2 Q Mr. Bernath, you recollect that you 3 were deposed on April 30, 1998? 4 A I do. 5 Q You're aware this is a continuing 6 deposition? 7 A Yes. 8 MR. KLAYMAN: Since that time we 9 have sent to you a subpoena pursuant to the 10 court's order of July 10, 1998. I'll ask 11 this be marked as Exhibit 1. 12 (Bernath Deposition Exhibit 13 No. 1 was marked for 14 identification.) 15 BY MR. KLAYMAN: 16 Q Have you seen this before? 17 A I have. 18 Q When did you see it? 19 A I guess within a day or so of the 20 date of the issuance. I don't remember the 21 exact date. 22 Q And did you have an opportunity to 391 1 look at the documents that were requested in 2 this subpoena? 3 A I did. 4 Q And did you search for documents 5 requested in this subpoena? 6 A I did. 7 Q Have you produced any documents in 8 response to this subpoena? 9 A No. 10 Q And why is that? 11 A Well, because I didn't have any 12 things that hadn't been produced already. As 13 you know, my computers and everything have 14 never been returned to me, so I didn't have 15 an opportunity to search that, but you've had 16 access to those. And I searched all of my 17 other papers in my old office and my new 18 office and did not have anything that hadn't 19 been given to you already. 20 Q This is the computer that was taken 21 under custody by the Inspector General? 22 A Correct. 392 1 Q Pursuant to the court's order of 2 July 10, 1998? 3 A Correct. 4 Q Still under the Inspector General's 5 custody? 6 A Yes. 7 Q Do you know whether the Inspector 8 General in this interim period since your 9 last deposition has had the opportunity to 10 search that computer for documents responsive 11 to Judicial Watch's various subpoenas? 12 A I've had no contact with the IG. 13 Q Do you know whether the IG has 14 searched the backup systems at the Pentagon? 15 In other words not just the computer but you 16 testified last time that the documents were 17 stored on a central system. Do you know 18 whether the IG searched those central 19 systems? 20 A I have no idea. 21 Q Has anyone ever brought to your 22 attention documents which the Inspector 393 1 General found on your hard drive or on the 2 central server that were not produced at your 3 first deposition? 4 A I've seen the -- some of the 5 documents I think that were submitted as a 6 result of that search. I don't know that 7 they were not submitted previously. 8 Q Who showed you those documents? 9 A I think I got a package from the 10 Justice Department. 11 Q When did you get that package? 12 A Must have been two, three weeks 13 ago. 14 Q And did it contain discrete 15 documents that had been found on your 16 computer or were there other documents in 17 that package as well? 18 A It was some computer documents, 19 and, as I recall -- is this the package? As 20 I recall, it might have had some articles in 21 it, too. 22 Q Newspaper articles? 394 1 A News articles, yeah. 2 Q What were the newspaper articles 3 about? 4 A I don't recall. 5 Q Were they about this lawsuit that 6 you're here on today? 7 A Oh, yes. 8 Q Yes? 9 A Well, this lawsuit? I'm not sure 10 what you mean by that. They were about Linda 11 Tripp and the release of information. 12 Q Who from the Justice Department 13 sent you that package? 14 A I think Mr. Zaring did. 15 Q Did you know that that package was 16 coming before it was received? 17 A No, I don't believe so. 18 Q Did you have a discussion with 19 Mr. Zaring or anyone else at the Justice 20 Department about the documents that 21 Mr. Zaring sent you? 22 MR. ZARING: I'm going to direct 395 1 the witness not to answer to the extent that 2 it would disclose the contents of any 3 discussions that he had with members of the 4 Justice Department. 5 MR. KLAYMAN: Well, we're not 6 asking for the substance. I'm just asking 7 whether you had discussions. 8 MR. ZARING: You can answer to that 9 extent. 10 THE WITNESS: I did not talk to 11 Mr. Zaring about any of the documents. 12 BY MR. KLAYMAN: 13 Q Did you talk to anybody at the 14 Justice Department about any of the 15 documents? 16 A No. 17 Q Did you ever discuss any of the 18 documents in the package with anyone? 19 A The question was did I have 20 knowledge before the thing. Are you asking 21 now in total? 22 Q What I'm saying is that package of 396 1 documents that you received, which included 2 the documents that the Inspector General had 3 found on your hard drive? 4 A Right. 5 Q And press articles? 6 A Right. 7 Q Have you ever discussed these 8 documents and press articles with anyone? 9 A Yes. 10 Q Who did you discuss them with? 11 A With my lawyer. 12 Q Who's your lawyer? 13 A Mr. Hardy. 14 Q But anyone in addition to 15 Mr. Hardy? 16 A We may have gone over just what the 17 documents were with Mr. Zaring. I can't 18 recall. 19 Q And where did you go over them, in 20 person? 21 A Yes, I met him in person, but I 22 don't think we discussed the -- 397 1 MR. ZARING: Again, Mr. Bernath, I 2 direct you not to discuss the content of any 3 conversation you and I may have had regarding 4 these documents. 5 BY MR. KLAYMAN: 6 Q I'm not going to ask you at this 7 point specifically what was discussed. I'm 8 just going to ask you where you met and who 9 you met with in discussion of these documents 10 that you were sent by Mr. Zaring. 11 A I met with Mr. Zaring in 12 Mr. Hardy's office. 13 Q How long was the meeting? 14 A Less than an hour. 15 Q Was anyone else present besides 16 Mr. Zaring and Mr. Hardy? 17 A Ms. Weismann. 18 Q Anyone else in addition to those 19 three lawyers plus yourself? 20 A No. No. 21 Q I take it you've discussed these 22 documents that were sent to you by Mr. Zaring 398 1 with people other than your counsel? 2 A No. 3 Q Did you mention to anybody that in 4 fact documents were found on your hard drive 5 that were responsive to Judicial Watch's 6 subpoena? 7 A No. 8 MS. WEISMANN: I object to the 9 characterization. 10 BY MR. KLAYMAN: 11 Q Didn't mention that to your wife? 12 A I guess I mentioned that I have a 13 package, but I have not discussed any of 14 these particulars. 15 Q Well, again, I'm not asking you for 16 particulars. I'm just saying did you mention 17 that these documents had been found? 18 A I probably mentioned that I 19 received the package. 20 Q Now, you were aware that the 21 documents that were in the package were 22 documents, not the press clips, but the 399 1 documents from your computer which have been 2 produced to Judicial Watch in this lawsuit? 3 MR. ZARING: Objection. 4 BY MR. KLAYMAN: 5 Q You are aware of that? 6 A I'm not sure what the -- 7 MR. ZARING: Objection to the form 8 of the question. 9 THE WITNESS: I'm not sure what the 10 question is. Can you -- 11 BY MR. KLAYMAN: 12 Q The question is the documents that 13 you were sent by Mr. Zaring, let's exclude 14 press clips. Let's just talk about the 15 documents from your computer that you had 16 erased from the hard drive that were 17 retrieved by the inspector general from the 18 hard drive. You are aware that those 19 documents have been produced to Judicial 20 Watch? 21 A First of all -- 22 MR. ZARING: Again, I direct the 400 1 witness not to answer to the extent that he's 2 revealing any communication between me or any 3 other lawyer and him. 4 MR. KLAYMAN: Well, that wouldn't 5 be subject to attorney-client privilege, 6 whether they were produced. 7 MR. ZARING: If he knows. 8 THE WITNESS: Well, first of all, I 9 don't acknowledge that they were the result 10 of only erased documents because I don't 11 acknowledge that documents were -- that all 12 of them were erased, but I am aware that they 13 were submitted in accordance with the 14 subpoena. 15 BY MR. KLAYMAN: 16 Q Are you able to differentiate which 17 documents were recently produced to Judicial 18 Watch as a result of the Inspector General's 19 search of your computer? 20 A Differentiate from what? 21 Q Are you able to identify the 22 documents that were produced to Judicial 401 1 Watch as a result of the Inspector General's 2 seizure and review of your computer? 3 A I haven't memorized the documents. 4 I imagine if you showed them to me I could 5 tell you if they were the ones that I've seen 6 but I haven't memorized anything. 7 MR. ZARING: I'd just like to put 8 on the record that we've produced the 9 documents that are being discussed here to 10 the court. 11 MR. KLAYMAN: Do you want to do it? 12 Please go to the other room, Mr. Bernath. 13 That's fine. 14 THE WITNESS: I'm sorry? 15 MR. KLAYMAN: I don't want your 16 statements on the record to affect the 17 testimony here. Mr.Bernath, please go to the 18 other room. 19 MR. ZARING: You can stay. I just 20 want to identify for the record that we've 21 produced these documents to the court in an 22 in camera production pursuant to the court's 402 1 order. 2 MR. KLAYMAN: Well, we understand 3 that there's a court order and we understand 4 your statement that you produced them to the 5 court, but that, of course, does not mean 6 that the court got everything and we're 7 entitled to look into that. 8 MR. ZARING: We made a full 9 production. 10 MR. KLAYMAN: Well, I would ask in 11 the future because it certainly wouldn't do 12 any harm if Mr. Bernath went to the other 13 room. That's why we have the other room 14 open. If you want to make statements like 15 that, I'd appreciate your not having the 16 witness here because it does taint testimony. 17 MR. ZARING: I object to that 18 characterization of my objection and the 19 objection stands. 20 MR. KLAYMAN: I don't understand 21 this to be an objection, Mr. Zaring. It was 22 just simply a statement on your part. That's 403 1 what I am trying to ask that you not do 2 again. I want to do this as a precautionary 3 matter because I do want to find out what he 4 knows about what was produced and what was 5 not produced. I don't want to find out from 6 the Department of Justice. I want to find 7 out from the witness unless, of course, you'd 8 like to go under oath, too. 9 (Bernath Deposition Exhibit 10 No. 2 was marked for 11 identification.) 12 MS. WEISMANN: We need to take a 13 two-minute break. 14 MR. ZARING: The witness can stay. 15 THE VIDEOGRAPHER: We're going off 16 video record at 10:18. 17 (Recess) 18 THE VIDEOGRAPHER: We're back on 19 video record at 10:21. 20 BY MR. KLAYMAN: 21 Q I'll show you what I'll ask the 22 court reporter to mark as Exhibit 2. It is a 404 1 series of documents with a cover letter of 2 May 3, 1999, from the Department of Justice 3 signed by David Zaring. Let me show it to 4 you and then we'll identify it. This is 5 Exhibit 2. 6 Now, is Exhibit 2, Mr. Bernath, the 7 documents which you've just described which 8 you recently received from Mr. Zaring of the 9 Department of Justice? 10 A No, it's not. Some of the 11 documents are the same, but this is a much 12 bigger package than the one that I received. 13 Q Can you tell us -- 14 A Some of these documents are not 15 documents that I produced or ever had access 16 to, I think. 17 Q Can you tell us which documents in 18 Exhibit 2 were recently sent to you by 19 Mr. Zaring? 20 A I can try to. I'd also like to 21 revise an earlier answer that I gave on 22 documents that were found that we didn't 405 1 produce. There was a copy of the DOD IG -- 2 my interview with them back at the beginning 3 of this, and we've produced that for you here 4 today. 5 MR. FITTON: Thanks. 6 THE WITNESS: To go through -- 7 BY MR. KLAYMAN: 8 Q And what I'm looking for are not 9 just documents that Mr. Zaring recently sent 10 to you in the last few weeks but if you can 11 identify if that document came from your 12 computer. 13 MR. ZARING: I'm going to direct 14 you not to answer to the extent that the 15 question invites an answer based on 16 communications you've had with me. 17 MR. KLAYMAN: So are you 18 effectively blocking our ability to learn 19 whether these documents came from his 20 computer? 21 MR. ZARING: No. 22 THE WITNESS: So I can answer what 406 1 came from my computer? 2 MR. ZARING: Sure. 3 MR. KLAYMAN: Okay. 4 THE WITNESS: Well, I guess I have 5 to say I could tell you some of these 6 documents -- which documents were originally 7 produced on the Palm Pilot, which I no longer 8 have access to, and which ones may have come 9 from my computer. I don't know that I could 10 tell you exactly these -- whether they came 11 from my computer or whether they were copies 12 of things that I had already given you 13 earlier. In other words, like this 14 document -- 15 BY MR. KLAYMAN: 16 Q Well, let me stop here. Was the 17 Palm Pilot also seized by the Inspector 18 General? 19 A Yes, it was. 20 Q In addition to the computer and 21 your Palm Pilot, did the IG take anything 22 else? 407 1 A They actually took three different 2 computers and the Palm Pilot. 3 Q What three different computers did 4 they take? 5 A I've been gone a long time now. 6 One was a Macintosh. One was a Dell 7 dockable. 8 Q That's the one you testified about 9 last time, right, the Dell dockable? 10 A Yes. One was a desktop computer 11 and one was the Palm Pilot. 12 Q What kind of desktop computer? 13 A I don't remember. 14 Q And you had used all four of these 15 computing devices? 16 A They were all in my possession, so 17 they all got taken. I can't remember the 18 extent to which I used the -- I mean, I used 19 the Dell dockable as my main one and the 20 Pilot was my main one. The other two I don't 21 believe were used extensively, but the 22 subpoena caused them all to be seized. 408 1 Q Did you take each of these four 2 different computing devices when you 3 transferred from the press office to where 4 you're currently working? 5 A No. No, the Pilot was my own, so I 6 took that, obviously. The Dell docking 7 station I took, the Macintosh I took, and I 8 cannot remember what the PC was, the fourth 9 computer. 10 Q The PC, you took that, too? 11 A No, I don't believe I did. I just 12 can't remember where that was. 13 Q Where did the IG find that? 14 A The only three that I remember that 15 were in my -- that they took from me at my 16 office, the new office, were the Macintosh, 17 the Dell dockable, and the Pilot. I cannot 18 remember whether they went to the other 19 office or -- which I believe they did, but I 20 can't remember the fourth one at all. 21 Q Then how do you know that they took 22 this other unnamed PC? 409 1 A There was a receipt or something 2 that they left. There were four. I just 3 remember that there were four things that 4 they took. 5 Q So they must have found that PC in 6 your current office? 7 A I can't remember. I can't remember 8 where it was. 9 Q Now, you had deleted files from the 10 Dell dockable when you moved? You testified 11 to that? 12 A I had deleted files that were no 13 longer needed by me in my new office. I had 14 not deleted files pertaining to this case or 15 anything else. I just want to clarify that. 16 That was my original testimony and that's 17 still my testimony. 18 Q Are you aware that documents have 19 been produced after the IG inspected the 20 computer that were responsive to Judicial 21 Watch's subpoena that were not produced at 22 your prior deposition? 410 1 MR. ZARING: I object to that. 2 BY MR. KLAYMAN: 3 Q You can respond. 4 A No, I haven't done a side-by-side, 5 and I haven't seen all these, so no, I'm not 6 aware. Most of the documents that I saw had 7 been produced already. 8 Q Has anyone told you that there were 9 documents found on your computer, any of your 10 computers, these four, that hadn't been 11 produced by the time of your last deposition? 12 A No. 13 Q Are you aware of that from any 14 source? 15 A No. 16 Q Have you asked? 17 MR. ZARING: I'm going to direct 18 the witness not to answer to the extent that 19 it would involve communications between him 20 and his attorneys; otherwise, he can answer. 21 MR. KLAYMAN: That's a way of 22 giving him the answer. Certify it. 411 1 THE WITNESS: I don't remember 2 asking the question, frankly. If I asked it 3 at all, it wouldn't have been in that form. 4 BY MR. KLAYMAN: 5 Q What form would it have been in? 6 A It would have been a more generic, 7 were there any problems. 8 Q Well, clearly in and around the 9 time of this court's last order or order of 10 July 10, 1998, you knew that the court had 11 ordered seizing your computer, correct? 12 A Yes. 13 Q Correct? 14 A Yes. 15 Q And you are aware at that time that 16 the court wanted to see whether there were 17 documents that you erased that were 18 responsive to the court's subpoenas, correct? 19 A Yes. 20 Q And you did have some concern, did 21 you not, that perhaps you had erased 22 something that was subject to the court's 412 1 subpoenas? 2 A No. You know, my original 3 testimony was I didn't believe I erased 4 anything that was -- that had to do with 5 Tripp or Lewinski. That's always been my 6 position, and so I was not concerned about 7 that. 8 Q But you are aware that if indeed 9 you did erase something that was responsive 10 to the court's subpoenas, then that could 11 create a legal issue, correct? 12 MR. ZARING: I object to that 13 characterization. 14 BY MR. KLAYMAN: 15 Q You can respond. 16 A It's a hypothetical question. I 17 don't know how to respond to it. I told you 18 that I wasn't concerned, so I can't answer 19 questions about what if. 20 Q Well, how old are you, Mr. Bernath? 21 A I'm 52. 22 Q And how long have you been 413 1 professionally active? 2 A How long have I been in the 3 government? 4 Q Well, whatever. 5 A Thirty years in the government. 6 Q Now, you are aware that when a 7 court orders you to produce something under 8 subpoena and if you don't produce it that you 9 can be held legally accountable by the court 10 for not producing? You're aware of that, 11 correct? 12 A Again, hypothetically I'm aware, 13 but I was not in that position. 14 Q And you're aware that the use of 15 the phrase "legally accountable" is the most 16 benign way of putting it, correct? 17 A No, I don't know that. You're now 18 into some legal things that I don't know. 19 Q You know that if a court asks to 20 produce something and you knowingly don't 21 produce it, that's what's called obstruction 22 of justice, correct? 414 1 MR. ZARING: I object to the 2 characterization in that question. 3 BY MR. KLAYMAN: 4 Q You knew the concept, correct? 5 A I'm aware that if the court asks 6 you to do something you do it. 7 Q Otherwise you can get in trouble? 8 MR. ZARING: Objection. 9 BY MR. KLAYMAN: 10 Q Correct? 11 A To me there is no otherwise. To me 12 when the court directs it you do it. 13 Q And if you don't do it, you get in 14 trouble, right? 15 MR. ZARING: Objection. 16 BY MR. KLAYMAN: 17 Q If you don't do it and you get 18 caught, you get in trouble, correct? 19 MR. ZARING: Objection. 20 THE WITNESS: I'm aware that there 21 would be consequences if you failed to obey a 22 court order. 415 1 BY MR. KLAYMAN: 2 Q So, therefore, you must have had 3 some curiosity to ask was there anything on 4 my computer that was found that was 5 responsive to the court's earlier subpoenas? 6 MR. ZARING: I object to the 7 characterization. 8 BY MR. KLAYMAN: 9 Q You did make such an inquiry, 10 didn't you? 11 MR. ZARING: Objection. Asked and 12 answered. I object to the characterization. 13 THE WITNESS: I think the original 14 question was -- actually, I can't even 15 remember the original question. Say your 16 question again. 17 MR. KLAYMAN: Let's read it back. 18 (The reporter read the record as 19 requested.) 20 THE WITNESS: I said that if I 21 asked the question at all it was in a 22 generic, were there any problems? I wasn't 416 1 expecting to find problems. I don't expect 2 to find problems. 3 BY MR. KLAYMAN: 4 Q Who did you ask the question to? 5 MR. ZARING: I object to the extent 6 that that would call for an answer which 7 reveals attorney-client communications. 8 MR. KLAYMAN: Not with regard to 9 the question. I'm not asking for the actual 10 communication yet. 11 MR. ZARING: Objection stands. 12 THE WITNESS: Can I ask a question 13 over here? 14 (Witness conferred with counsel) 15 THE WITNESS: I can't say with any 16 certainty that I ever asked the question, so 17 I think that's the best answer I can give 18 you. 19 BY MR. KLAYMAN: 20 Q Has anyone ever brought to your 21 attention that documents were found on your 22 computer that were responsive to the court's 417 1 earlier subpoenas? 2 A Yes. 3 MR. ZARING: Again, I -- 4 MR. KLAYMAN: We got the answer. 5 THE WITNESS: Yes. 6 BY MR. KLAYMAN: 7 Q And who told you that? 8 MR. ZARING: I object. Don't 9 answer. 10 MR. KLAYMAN: Well, we've got the 11 answer, so he's got to tell us. 12 MR. ZARING: No, he doesn't. Don't 13 answer. 14 MR. KLAYMAN: The name of the 15 person is not covered by any privilege. 16 MR. ZARING: You're not required to 17 reveal any communications between you and 18 your lawyer. I direct the witness not to 19 answer. 20 MR. KLAYMAN: He already said that 21 he was told, and consequently the name of the 22 person is germane. 418 1 MR. ZARING: You can answer to the 2 extent that, if the person was not a lawyer, 3 then please answer the question. If the 4 person who told you was a lawyer, don't 5 answer the question. The objection stands. 6 (Witness conferred with counsel) 7 THE WITNESS: Okay, I have to honor 8 the objection. 9 BY MR. KLAYMAN: 10 Q Were you told this by a nonlawyer? 11 A No. 12 Q Were you told this by someone who 13 is not representing you legally in this 14 proceeding? 15 A No. 16 MR. KLAYMAN: Do you want to take a 17 few minutes to confer? I'd be happy to give 18 you some time, but I don't think you want to 19 put yourself in this position, Mr. Zaring. 20 MR. ZARING: I don't know if you 21 wanted to move on to the questions set forth 22 in the court's order or what. 419 1 MR. KLAYMAN: Department of Justice 2 here is in a spot. If you know that 3 documents weren't produced to the court 4 previously, you have an obligation as an 5 officer of the court to advise the court of 6 that. 7 MR. ZARING: I appreciate your 8 concern. 9 MR. KLAYMAN: Well, it's a concern 10 which I think you should share. 11 MR. ZARING: Go ahead and proceed 12 with the examination. 13 MR. KLAYMAN: Well, let's certify 14 it. I'd like to get some kind of 15 accommodation here so we don't have to move 16 the court. 17 MR. ZARING: Go ahead and proceed 18 with the examination. Our objections stand. 19 BY MR. KLAYMAN: 20 Q Were the documents identified to 21 you that weren't previously produced that 22 were found on your computer? 420 1 A I distinguished -- you've asked the 2 question two ways. One is responsive to the 3 court's order, and I've said I did receive 4 things that were responsive to the court's 5 order. I have not said that I received or 6 was ever notified that there were things that 7 were not previously produced. 8 Q We'll accept your earlier 9 testimony, Mr. Bernath. I didn't ask that 10 question. 11 A Well, you have asked that, I think, 12 both ways. 13 Q The record's quite clear. I'm 14 asking you whether it was identified to you, 15 the documents that were found on your 16 computer by the IG that were not previously 17 produced up to including the time of your 18 last deposition. 19 MR. ZARING: Asked and answered. 20 THE WITNESS: The answer, as you've 21 just asked it is no. Now, if you asked the 22 question responsive to the court's order, it 421 1 would be yes. 2 BY MR. KLAYMAN: 3 Q Well, tell us responsive to the 4 court order what documents were found by the 5 IG on your computer? 6 A I guess you've got them here. 7 Q Well, show me which they are. 8 Let's go through it. 9 A These pages here -- they're not 10 numbered, so I don't know how to identify 11 them for you, but these two pages, these are 12 from the Palm Pilot. 13 Q Do you have the original exhibit? 14 A I have this copy here. 15 Q Why don't you put an A and B on 16 those two pages? Put your initials next to 17 it. 18 A This next page looks like again 19 from the Palm Pilot. 20 Q This one that has in handwriting, 21 "attorney-client privilege claim"? 22 A Yes. 422 1 Q All right. Put a C on that. 2 A A blank page. This letter from 3 Mica, I've never seen this before. 4 Q That's spanning Bates numbers 1, 2, 5 3, 4, 5, and 6? 6 A Looks like through 6, yes. I don't 7 know what this item 63, 64 is. It's not 8 something that I did. I can't see enough of 9 65 here to tell what that is. 10 Q Let's just go through each page. 11 A Okay. I don't know what 66 is, and 12 I don't know what 67 is or 68 or 69. I can't 13 tell anything from 70. 71, 72, 73, 74 I 14 haven't seen. They're not mine. 75, 76, 77, 15 78, 79, 80 I don't know what they are; 16 they're not mine. 81, 82, 83 are not mine. 17 88, 89 -- 18 Q You skipped 84. 19 A I'm sorry. Oh, that's the end of 20 that one that's not mine. None of these that 21 I've seen, either. 88 I haven't seen, 89, 91 22 I'm not sure of. 423 1 Q Well, 90 and 91 go together, right? 2 A Yes. It could have come from mine. 3 It was one that was in previous documents. I 4 remember we went over it in a lot of detail. 5 Q So 90-91 could have come from your 6 computer and been retrieved by the IG? 7 A That's two questions. Is this -- 8 Q All right, 90-91 came from your 9 computer? 10 A No, could have. 11 MR. ZARING: Objection. 12 THE WITNESS: In other words, there 13 was a document like this -- it was a draft 14 answer to Mr. Solomon. I just don't know 15 whether this is that document or not. It's 16 similar. 17 BY MR. KLAYMAN: 18 Q You were asked to prepare that 19 draft to Mr. Solomon? 20 A Yes, an original one, yes. 21 Q Who asked you to do that? 22 A I think it came down from the 424 1 correspondence and directives division of the 2 Office of Secretary of Defense. He gets 3 letters in from everybody. They decide who 4 should prepare the draft for signature, and 5 so it came down to our office. 6 Q Who sent it specifically? 7 A I have no idea. 8 Q Who would have sent it, based upon 9 who ordinarily sends those things? 10 A All I know is the office. It's a 11 group of people in the office. It's the 12 Office of Correspondence and Directives. 13 Q Why would it have been sent to you? 14 A It would have been sent to public 15 affairs, and I probably would have been the 16 one to prepare a draft. 17 Q Who would make the assignment in 18 public affairs in the ordinary course? 19 A Me on something like this. 20 Q You're the person that assigns 21 responding to correspondence, or at least you 22 were at that time? 425 1 A Yeah, for most things, you know, 2 not for everything. 3 Q By the way, at the time of your 4 last deposition you said you had gotten a pay 5 increase? 6 A No. I said I had gotten a 7 promotion. There was no pay increase that 8 went with it. 9 Q Since your last deposition, have 10 you gotten a pay increase? 11 A No. 12 Q Have you gotten another promotion? 13 A No. 14 Q Are you up for promotion? 15 A No. 16 Q Are you up for a pay increase soon? 17 A No. 18 Q Step increase? 19 A No. 20 Q Did you get any cash awards? 21 A I got a cash award last year. 22 Q When was that? 426 1 A It was around November. 2 Q November of 1998? 3 A Correct. 4 Q How much did you get? 5 A Ten thousand. 6 Q And what was that for? 7 A That was for work that I had done 8 the previous year. 9 Q Working on the Linda Tripp matter? 10 A No. 11 Q What was the work? 12 A It was the work that I did -- well, 13 let's see. It covered the -- it was all 14 based on the time that I was at the American 15 Force Information Service. 16 Q Who recommended you for that cash 17 award? 18 A Mr. Bacon, as he does all civil 19 servants. 20 Q And it had to be approved by the 21 Secretary of Defense, William Cohen, correct? 22 A I don't know that it gets up to 427 1 him. 2 Q Who ordinarily approves those 3 things? 4 A There is a committee of people who 5 review all the packets and make the 6 recommendations on whether they're sufficient 7 and who gets what amounts, but it's not at 8 the Cohen level. 9 Q Who sits on that committee? 10 A There are panels that are convened. 11 They're all Senior Executive Service members 12 gathered from around the department, and the 13 committees vary from year to year. 14 Q Who sat on your panel? 15 A I have no idea. 16 Q Who would have sat on the panel in 17 the ordinary course of things in terms of 18 where they come from? 19 A It's just senior executives from 20 throughout the Department of Defense, so I 21 have no idea. 22 Q Do you have certificate of service 428 1 with your award? Did they give you a 2 certificate? 3 A No. 4 Q You did get notified in writing, 5 correct? 6 A All you get is a pay slip. 7 Q What do you mean by a pay slip? 8 A It's a standard Form 50 that says 9 that you've been awarded this amount of 10 money, and it's just like any other pay 11 action. 12 Q Did you request that cash award, 13 you, Cliff Bernath? 14 A No. 15 Q Caught you completely by surprise? 16 A No, I knew that I was being 17 submitted for it. 18 Q Mr. Bacon told you that? 19 A Yes. 20 Q And what did he tell you? 21 A That I was being recommended. 22 Q And where did he tell you that, in 429 1 his office? 2 A I don't remember. 3 Q Is there anything in writing? 4 A No. I mean, there's an award 5 recommendation someplace, you know. That's 6 what the committee reviews. 7 Q Have you ever seen that 8 documentation? 9 A I don't think I've seen what he 10 signed, no. 11 Q Did you ever discuss this award 12 with anyone? I take it you did. 13 A It's not something that I would 14 have hidden. 15 Q You were quite happy? 16 A Sure. 17 Q Told your wife? 18 A Mm-hmm. 19 Q Told your friends? 20 A Well, it's not something that I 21 tell friends about, no. 22 Q So you didn't tell your friends? 430 1 You told other people at the Department of 2 Defense? 3 A No, it's not something that I 4 discuss. I don't discuss my pay. I don't 5 discuss awards. There's no public ceremony. 6 You know, there's no certificate to hang or 7 anything like that, so no, it's not something 8 that I talked about. 9 Q So you weren't really proud of it? 10 A I didn't say that. I said I didn't 11 talk about it. 12 Q Ken Bacon, did he get a cash award 13 in the last year? 14 A I don't know. I don't believe so. 15 Q Did he tell you that? 16 A No, he doesn't talk to me about it. 17 Q Has he gotten a promotion? 18 A No. 19 Q Step increases? 20 A No. 21 Q Commendations? 22 A Not that I'm aware of. 431 1 Q Do you know whether he's been 2 demoted? 3 A No, he hasn't. 4 Q Do you know whether he's been asked 5 to resign? 6 A No. 7 Q Have you been asked to resign since 8 your last deposition? 9 A No. 10 Q Have you been reprimanded since 11 your last deposition? 12 A No. 13 Q Have you received any negative 14 criticism on job reviews? 15 A No. 16 Q Has anyone ever talked to you at 17 the Department of Defense and said Cliff, you 18 messed up with Linda Tripp? 19 A There was the conversation with Bob 20 Tyrer that we discussed at our last 21 deposition, yes. 22 Q Other than that nothing else? 432 1 A No. 2 Q Nothing since? 3 A Nothing since, that's right. 4 Q Do you know whether the Inspector 5 General is going to come out with a report 6 any time soon on this whole Tripp incident? 7 A I have no idea. 8 Q Have you been advised as to what 9 results are expected, if any? 10 A No. 11 Q Do you know of any complications in 12 the IG's investigation that required it to 13 take well over a year to investigate? 14 A No. 15 Q Have you heard anything at the 16 Department that the IG is burying its 17 investigation until after the Clinton 18 Administration leaves office? 19 A No. 20 Q Did you get any more cash awards? 21 A No. 22 Q Get any medals? 433 1 A No. 2 Q Plaques? 3 A No. 4 Q So the only evidence that you got 5 the cash award is this slip? 6 A Correct. 7 Q And was there a ceremony? 8 MR. HARDY: Objection. That's not 9 what he said. 10 MR. KLAYMAN: That's what he just 11 answered, so please don't interrupt. 12 MR. HARDY: I'm just saying that's 13 not the testimony. 14 MR. KLAYMAN: He just gave the 15 testimony here so it's clear. 16 MR. HARDY: He testified there was 17 a recommendation. Sir, don't misstate the 18 evidence. 19 MR. KLAYMAN: I'm not misstating 20 anything. What you're doing is interrupting 21 my testimony. He just answered the question 22 and you are now testifying yourself. It's 434 1 inappropriate. Certify it. 2 BY MR. KLAYMAN: 3 Q So there was no public announcement 4 that you got the $10,000 cash award? 5 A That's correct, there was no 6 ceremony. 7 Q No paper passed around the office 8 or the Department of Defense? 9 A No, and there never has been in my 10 whole career. 11 Q Now, when you got this $10,000 cash 12 award, you did think to yourself, didn't you, 13 maybe they're paying me the $10,000 so I stay 14 loyal? 15 A Absolutely not. Absolutely not. 16 Q Maybe they're paying me the $10,000 17 so I don't create any more problems here? 18 A No. 19 Q Maybe they're paying me the $10,000 20 so I don't implicate Secretary of Defense 21 Cohen? 22 A Absolutely not. 435 1 Q And I don't implicate The White 2 House? 3 A Absolutely not. 4 MS. COVEY: Objection as to form. 5 BY MR. KLAYMAN: 6 Q And I don't implicate the Clinton 7 Administration any more? 8 MS. COVEY: Objection. 9 MR. ZARING: Objection. 10 THE WITNESS: Nothing. 11 BY MR. KLAYMAN: 12 Q So you just thought you did a great 13 job? That's why you got the $10,000? 14 MR. ZARING: Objection. 15 THE WITNESS: I did do a great job 16 and that's why I got the $10,000. 17 Q Did you do a great job with Linda 18 Tripp? 19 MR. HARDY: Objection. You don't 20 have to answer that. 21 MR. KLAYMAN: Yes, he does. 22 BY MR. KLAYMAN: 436 1 Q Did you do a great job with regard 2 to Linda Tripp? 3 MR. HARDY: Don't answer that. 4 MR. KLAYMAN: Are you instructing 5 him not to answer? 6 MR. HARDY: Yes. 7 MR. KLAYMAN: Certify it. 8 BY MR. KLAYMAN: 9 Q Are you proud of having released 10 her Privacy Act information? 11 MR. ZARING: Objection. 12 MR. GAFFNEY: Objection to form. 13 MR. HARDY: You don't have to 14 answer that one, either. 15 MR. KLAYMAN: Certify it. All 16 right, let's continue. 17 THE WITNESS: So 90 and 91 we've 18 done; 92, 93 I haven't seen; 94 and 95 looks 19 like 90 and 91. 103 I haven't seen, 104 I 20 haven't seen, 105 I haven't seen, 106 and '7 21 look like the others. 108 I haven't seen, 22 109, 110 -- these look like copies -- '10, 437 1 '11, and 112 looks like that same letter 2 again. 113 I haven't seen. 114 is just a 3 blank sheet of paper. I don't know what that 4 is. 115 and 116 -- oh, I see -- and 117, 5 it's not mine, haven't seen. 118 and 119 6 looks like a copy, the same thing. 7 BY MR. KLAYMAN: 8 Q This was on your computer? 9 A No -- well, this was the one that 10 could have been or could be from another 11 source. It looks to me like that's a tab 12 that was probably assigned to this document, 13 so I don't know whether that was mine or 14 whether that was somebody else's. 15 Q But this could have been retrieved 16 from your computer? 17 MR. ZARING: Asked and answered. 18 BY MR. KLAYMAN: 19 Q It's a different document. 20 A Well, to me it looks like the same 21 document so I can't tell any difference. 22 121, 122 I haven't seen -- I haven't seen 438 1 either of those. 123 I haven't seen '24, '25 2 I haven't seen. 126 is that same letter 3 again -- 4 Q This came from your computer? 5 A I don't know. It's the same 6 answer. 7 Q 126 and 127? 8 A It's the same answer that I've 9 given before: I don't know. Same with 128 10 and 129. This looks like multiple copies of 11 the same document throughout here. 130, 131, 12 132 I haven't seen. I don't know what 133 13 is. 134 I haven't seen. 136 and 137 I 14 haven't seen. 138, '39 is that same document 15 again. 16 Q Well, 138 and 139 is a letter that 17 came from your computer? 18 A It's the same type of letter, but I 19 cannot say this came from my computer. In 20 fact, it can't have come from the computer 21 because it's got written marks on it. 22 Q Do you know whose handwriting it 439 1 is? 2 A I do not. 3 Q Do you know what the handwriting 4 says? 5 A "Changes" something. No. 6 Q Anticipated? 7 A I can't tell. 145, 146 I haven't 8 seen. 147 and 148 is another copy of that 9 document. 10 Q Did that come from your computer? 11 A I have no idea. 169 is the same 12 letter with somebody's handwriting on it. 13 Q Do you know whose handwriting that 14 is? 15 A I don't. 16 Q 169, 170? 17 A Right. I don't know whose that is. 18 171, 172 is the same -- 173 is the same 19 document. 174, 175 -- 20 Q Well, wait a second. 171 and 172, 21 what do you mean it's the same document? 22 A This is the same letter that we've 440 1 been looking at each time here. 2 Q Well, it's in a different format, 3 though, isn't it? That's now turned into a 4 memorandum. 5 A At any rate I haven't seen it. 6 Q Did this come from your computer? 7 A No. 8 Q That's 171 through 173, correct? 9 A Correct. 174 I haven't seen, 175 I 10 haven't seen, 176 I haven't seen. 177 has 11 got writing on it. I haven't seen it. 12 179 -- 13 Q What about 178, 177 and '78? Isn't 14 that the letter that came from your computer? 15 A No. 16 MR. ZARING: Objection. 17 THE WITNESS: No, it's got writing 18 on it. It didn't come from my computer. 179 19 I haven't seen. 180 I haven't seen. 181 I 20 haven't seen. 182 I haven't seen. 183 I 21 haven't seen. 184 and '85 is the letter that 22 is similar but I have no idea if it came from 441 1 a computer. 2 BY MR. KLAYMAN: 3 Q Well, wait a second. You say you 4 have no idea. It may have come from your 5 computer, correct, 184 and 185? 6 A There was an initial draft that I 7 drafted. I have no idea whether this is that 8 draft or whether this is a revised draft from 9 someplace else. There's just no indication 10 that tells me. 11 186 I haven't seen. Same answer on 12 187, 188, 189, and 190. 13 Q What do you mean by same answer? 14 A It is similar to one that could 15 have been on my computer but I cannot tell 16 you whether or not this copy or this version 17 came from me or my computer. And I haven't 18 seen 191 or -- let me see this. This last 19 one is a -- did not come from my computer, 20 but this appears to be the final routing of 21 the answer and those are my initials on page 22 192. 442 1 Q So this did come from your 2 computer? 3 A It did not come from my computer. 4 Q But you approved it? 5 A Yes, I approved the draft. 6 Q 191 and 192, the document you're 7 testifying to -- 8 A Yeah, is 191 and 192. 9 Q Bates numbers 191 and 192, correct? 10 A Right. 11 Q What was the date of the initial 12 draft, roughly speaking, the first draft you 13 did that you think comes from your computer? 14 MR. ZARING: Objection. 15 THE WITNESS: That may or may not 16 have come from my computer. It was in the 17 March -- late March of '98, I think. 18 BY MR. KLAYMAN: 19 Q The first draft that you wrote does 20 not mention Ken Bacon's involvement in the 21 release of the Tripp information, correct? 22 A I believe that's correct. Nor does 443 1 it mention me. 2 Q What document are you looking at? 3 A I'm just looking at one of these 4 drafts. I can't tell -- 5 Q It just mentions you? 6 A It does not mention me. 7 Q No, I asked you about Bacon. 8 A Oh, it does not mention Bacon. 9 Q Correct? Now, let's look at 10 document 75. This is a draft that you 11 prepared, correct? 12 A This is not a draft that I 13 prepared. 14 Q Do you know who prepared it? 15 A I do not know. 16 Q Do you know why it mentions you and 17 it doesn't mention Ken Bacon? 18 A I've never seen it so I don't know. 19 Q Let's go back to the first document 20 that you thought may have come from your 21 computer. 22 MR. ZARING: Objection. 444 1 MR. KLAYMAN: Actually, I myself 2 object to my own question because his 3 testimony was much more definitive than that. 4 Thank you, Mr. Zaring, I appreciate that. 5 MR. ZARING: Least I could do. 6 MR. KLAYMAN: Thank you. I know 7 you're looking after justice here. 8 BY MR. KLAYMAN: 9 Q Now, when you wrote the initial 10 draft, such as documents 90 and 91, you did 11 not want to identify yourself or Mr. Bacon, 12 correct? 13 MR. ZARING: Objection. 14 THE WITNESS: The -- it had nothing 15 to do with who we wanted to identify. We 16 wanted to provide an initial answer to let 17 the congressman know that the matter was 18 being looked into and to let him know that 19 there was -- so it wasn't a matter of whose 20 name we wanted to include or not include. 21 BY MR. KLAYMAN: 22 Q Well, it's based on your own state 445 1 of the mind at the time. It was a natural 2 human reaction not to want to say that me, 3 Clifford Bernath, was involved? 4 A Yeah, but the answer was based on 5 the fact that there was -- Solomon wanted to 6 know what was being done. I told him there 7 was an investigation that was being 8 conducted, and that was enough of an answer. 9 Q Based upon your experience 10 professionally, you'd have to be an idiot to 11 turn yourself in, correct? 12 MR. ZARING: Objection. 13 THE WITNESS: That's got nothing to 14 do with the answer. 15 BY MR. KLAYMAN: 16 Q And you'd have to be an idiot to 17 turn your superior in, correct? 18 MR. ZARING: Objection. 19 THE WITNESS: That's got nothing to 20 do with this letter. 21 BY MR. KLAYMAN: 22 Q It wouldn't be very good for your 446 1 career to turn your superior in? 2 MR. ZARING: Objection. 3 THE WITNESS: That was never a part 4 of it. 5 BY MR. KLAYMAN: 6 Q In fact, when your name ultimately 7 was released into the media by Secretary 8 Defense Cohen -- 9 A It was not released by Secretary 10 Cohen. 11 Q Who released it? 12 A Colonel Dick Bridges. 13 Q Do you remember when he released 14 it? 15 A It was shortly after the 16 information was released, so it was that 17 Friday, March 13, or the following Monday or 18 over the weekend. It was fairly close after 19 that. 20 Q You didn't know in advance that 21 your name was going to be provided to the 22 media? 447 1 A I did not know, but that was 2 Colonel Bridges' decision. 3 Q Well, that's what Colonel Bridges 4 told you was his decision, correct? 5 A It was Colonel Bridges' decision. 6 Q You don't know whether Secretary of 7 Defense Cohen or somebody higher up told 8 Bridges to do it? 9 A I know they didn't but I have no 10 way of knowing that and I can't prove that. 11 Q Is Bridges the kind of guy, based 12 on your experience in working with him, that 13 would release the name of a fellow colleague 14 into the media in a situation like this? 15 A He felt that it was the right thing 16 to do at the time, and he made a judgment 17 call, and we all lived with that judgment 18 call. 19 Q But you had no knowledge that he 20 had made the judgment call until you found 21 your name in the public domain? 22 A No, that's not true. As soon as he 448 1 did it, he came and said I just released your 2 name. 3 Q But he didn't tell you in advance? 4 A No. 5 Q And as a matter of courtesy, 6 shouldn't he have told you in advance? 7 A To answer the question, you have to 8 understand the heat of what was going on at 9 the time. I understand why he did what he 10 did, and I understand the pressure that he 11 was under from the media and to do the right 12 thing, and that's what he was motivated by 13 was the desire to do the right thing. 14 Q Would you be so understanding if 15 you hadn't been promoted and received a 16 $10,000 cash award? 17 MR. ZARING: Objection. 18 THE WITNESS: It's not related. 19 BY MR. KLAYMAN: 20 Q Would you be so understanding if 21 you'd been fired? 22 A You know, the sequence of events 449 1 was this happened, I understood it as soon as 2 he did it, the promotion was a year later, 3 and everything else was not related. 4 Q Would you be so -- 5 A The fact is he did what he thought 6 was best, and I agreed that he did the best 7 he could. 8 Q So you have no problem with people 9 releasing your name and making you the 10 culpable party without your knowing it? 11 MR. ZARING: Objection. 12 MR. HARDY: Objection, I think 13 you're just arguing him now. He's given his 14 answer and he doesn't have to answer the 15 subject any more. 16 BY MR. KLAYMAN: 17 Q Please respond. 18 MR. HARDY: Don't answer. 19 MR. KLAYMAN: Certify it. 20 BY MR. KLAYMAN: 21 Q Now tell me how you know that the 22 order to release your name didn't come from a 450 1 higher up. 2 A I know, you know, that Colonel 3 Bridges and I were working closely. I know 4 that I never discussed it with Secretary 5 Cohen. I know that he was surprised by all 6 of this, so it would be highly unlikely that 7 he knew anything about it and would know to 8 call Colonel Bridges. I just find that 9 unbelievable. 10 Q How do you know he was surprised by 11 all this? 12 A Because he was asked a question on 13 the media and he didn't know about it. 14 Q He told you he was surprised by it? 15 A No, I've never discussed it with 16 him. 17 Q You know of others who have, 18 though, don't you? 19 A I don't have any direct knowledge 20 of anybody doing it. 21 Q Well, tell us your indirect 22 knowledge. 451 1 A I don't -- well, I'm sure that 2 Mr. Bacon must have discussed this with him. 3 I don't know the specificity of it. I don't 4 know when. I don't know what he said, but 5 I'm confident that Mr. Bacon talked to 6 Mr. Cohen. 7 Q And what leads you to that 8 confidence? 9 A Because that's the relationship. 10 When something is in the media, Mr. Bacon's 11 job is to advise the Secretary. 12 Q Well, Bacon told you that he 13 discussed it with Cohen, correct? 14 A I've never had that conversation 15 with Mr. Bacon, no. 16 Q Not that specific conversation? 17 A I've never discussed what Mr. Bacon 18 has discussed with Secretary Cohen. 19 Q But you've had a general 20 conversation, haven't you? 21 A I just said I've never discussed 22 the subject with him. 452 1 Q Mr. Bacon was recently deposed in 2 this case. You're aware of that, aren't you? 3 A I am aware of that. 4 Q Have you read that testimony? 5 A No. 6 Q Did Mr. Bacon tell you he was 7 deposed? 8 A I knew that he was being deposed. 9 Q How did you know that? 10 A I don't know. I mean, he may have 11 mentioned it, I don't know, but I did know he 12 was being deposed. 13 Q Turn to the document which -- 14 MR. HARDY: Mr. Klayman, would 15 11:30 be a convenient time to take a 16 ten-minute break? 17 MR. KLAYMAN: Sure. Do you want to 18 take an early lunch? 19 MR. HARDY: No, I just need to make 20 a phone call if that's good. 21 MR. KLAYMAN: That's fine, sure. 22 THE WITNESS: You were telling me 453 1 to turn to a certain document? 2 BY MR. KLAYMAN: 3 Q It's one you labeled C, as in 4 Charlie. 5 A Okay. 6 Q Do you see that entry at 1500? 7 A I do. 8 Q That means 3:00 o'clock in the 9 afternoon? 10 A Yes, it does. 11 Q "Bernath called Don Perkal, briefed 12 him, provided him with a copy of the details 13 memo." What did you brief Don Perkal? 14 Let me back up. These are your 15 notations, correct? 16 A Actually, these are not my 17 notations now that I look at it and read. It 18 says, "I Graybeal take a call." This came 19 from my military assistant at the time. This 20 is not mine. I thought it was kind of odd 21 that I would refer to myself as Bernath, but 22 the confusion was he had a similar system 454 1 that I did. But this came from Commander 2 Graybeal, not me. 3 Q Well, why is Commander Graybeal 4 documenting what you're doing on a daily 5 basis? 6 A He's my military assistant. 7 That's -- 8 Q His job is to keep track of you? 9 A It's to help me with my job, so he 10 does help keep track of me, yes. 11 Q But do you dictate this to him or 12 does he just observe that you're doing 13 certain things during the day? 14 A He observes, and as you look most 15 of this is what he did. Sometimes he was in 16 my office with me, sometimes he wasn't. I 17 don't know exactly how he got all this. 18 Sometimes he's in the room when we're talking 19 to people, though. 20 Q Have you ever asked him to do this? 21 A To keep these kinds of notes? No, 22 but I have asked him to be very aware of what 455 1 I'm doing and help me wherever he can. 2 Q Is this standard procedure at the 3 Pentagon? 4 A This is standard use of a military 5 assistant. A military assistant is pretty 6 involved in the boss's work. 7 Q But is it standard operating 8 procedure for a military assistant to keep a 9 chronology of what the boss is doing in 10 writing on a daily basis? 11 A No -- well, no, probably not a 12 chronology but Jamie and I were note takers. 13 What can I say? 14 Q Did you ever tell him not to take 15 any notes? 16 A No. 17 Q Do you know of other people that do 18 this at the Pentagon? 19 A I have no idea. 20 Q What are the criteria of what he 21 records and what he doesn't record? 22 A Whatever he feels like might be 456 1 useful to him that he might have to remember 2 that he might have to act on. 3 Q He didn't do this all the time, did 4 he? 5 A I have no idea. 6 Q So he must have had an 7 understanding, based on your interaction with 8 him, that what was going on was very 9 important, and that's why he recorded it? 10 A I can't comment on it. He and I 11 have never discussed this. We've never 12 discussed his notes. I've never seen his 13 notes. 14 Q Jamie is his name? 15 A Commander Graybeal, Jamie Graybeal. 16 Q He told you that he kept these 17 notes to protect himself, correct? 18 A He did not. In fact, no. 19 Q In fact, he was worried that he 20 could be implicated in this, correct? 21 MR. ZARING: Objection. 22 THE WITNESS: No. 457 1 BY MR. KLAYMAN: 2 Q And he wanted to make sure if 3 anybody was implicated it was you, Bernath? 4 MR. ZARING: Objection. 5 THE WITNESS: No, that is 6 ridiculous. That is ludicrously ridiculous. 7 BY MR. KLAYMAN: 8 Q And Don Perkal? 9 MR. ZARING: Objection. 10 THE WITNESS: I don't understand. 11 BY MR. KLAYMAN: 12 Q He told you that he kept this to 13 protect himself, correct? 14 A No, he did not say anything like 15 that? 16 MR. ZARING: Asked and answered. 17 BY MR. KLAYMAN: 18 Q You came to that conclusion 19 yourself, didn't you? 20 A I did not. In fact, this is the 21 first time I've seen these notes. 22 Q But if you had come to the 458 1 conclusion, you'd be shocked? 2 MR. HARDY: He's answered several 3 times. Don't answer any more on this 4 subject. 5 MR. KLAYMAN: Certify it. I didn't 6 know we had a judge sitting here in the room. 7 BY MR. KLAYMAN: 8 Q What did you say to Don Perkal at 9 3:00 p.m. in the afternoon? 10 A Well, these are based on his notes. 11 See, I don't know what he's referring to when 12 he says the details memo, but I imagine this 13 is the meeting that I had that we discussed 14 in great detail when I called the lawyers 15 together and said, "I've released this 16 information. I want you all to know that 17 this is the information I've released." 18 Q In the documents that you just 19 identified in Exhibit 2, do you see the 20 details memo? 21 A No. 22 Q This details memo was prepared on 459 1 your computer? 2 A I'm sorry? 3 Q The details memo was prepared on 4 your computer? 5 A Yes. 6 Q And it was erased when you moved 7 from the press secretary's office to your 8 current job? 9 A It was not. 10 Q How do you know that? 11 A Because you've got a copy of it in 12 your papers. 13 Q I have a copy of the details memo? 14 A You do. 15 Q Did we have it at the last 16 deposition? 17 A You did. 18 Q It says, "Later Don delivered an 19 assessment. Bernath committed a technical 20 error but no criminal intent: 'We need to 21 look at this closer.'" So I take it that 22 Jamie Graybeal was present when Don Perkal 460 1 delivered that assessment? 2 A It's very likely, yes. 3 Q How was the assessment delivered, 4 in person? 5 A This was in one of the meetings 6 that we had with Perkal and some of the 7 others. 8 Q Who were in those meetings? 9 A This was the meeting with Don 10 Perkal, Stew Aly, Tony Passarella, and 11 Charlie Talbot, people who knew about freedom 12 of information, and they were the general 13 counsel lawyers. 14 Q Was this assessment put in writing? 15 A No. 16 Q And when your assistant Jamie 17 writes, "Bernath committed a technical error 18 but no criminal intent," how does he know 19 what your intent was? 20 A I don't know. Just like my notes, 21 and we discussed this at great length, these 22 notes are not exact records. They're not 461 1 transcripts of a meeting. They're memory 2 joggers for him. So his words might not be 3 exactly accurate, in fact are not, but 4 they're memory joggers. 5 Q So at this time, when this notation 6 was made, this was the weekend of the 14th 7 through the 15th of March 1998, correct? 8 Correct? 9 A That's what it seems to indicate. 10 It's Monday, March 16. 11 Q There were discussions at the 12 Defense Department in which you participated 13 where the subject of your possible criminal 14 intent was discussed? 15 MR. ZARING: I object and direct 16 the witness not to answer to the extent that 17 it would reveal any attorney-client 18 privilege. 19 THE WITNESS: Let me answer one 20 part of that. As I testified earlier and is 21 in the testimony, when the possibility of a 22 Privacy Act consideration came up, I called 462 1 this meeting. I called these people 2 together, and I briefed them on what I had 3 done, why I had done it, all the 4 circumstances around it. And so that's the 5 meeting that he's referring to here. 6 BY MR. KLAYMAN: 7 Q And there was a discussion that 8 what you had done, along with Ken Bacon, was 9 criminal? 10 A No, the discussion was along the 11 lines this is what I've done, I want to make 12 sure that you know, you know, what the 13 circumstances were. The fact -- I can't 14 remember -- I mean, he says in here -- he 15 uses the word "criminal." I can't remember 16 that word ever came up. We were discussing 17 what went wrong -- I'm sorry -- what went on 18 and I wanted them to look at it and give me 19 an assessment. 20 Q But there was a discussion, was 21 there not, as to whether your activities and 22 Mr. Bacon's activities -- 463 1 A Mr. Bacon's activities were not 2 even involved in this. 3 Q They were known at the time? 4 MR. ZARING: Objection. 5 THE WITNESS: They were not part of 6 this discussion. 7 BY MR. KLAYMAN: 8 Q Well, was the fact that Bacon had 9 ordered you to get the information on Tripp 10 part of the discussion? 11 A Well, let's clarify that. 12 Q Answer the question first. It 13 calls for a yes or no and then you can 14 clarify it. 15 A No, the question can't be answered 16 yes or no because the question is phrased in 17 a way that either answer will give the wrong 18 impression. Mr. Bacon and I had a 19 discussion, and this is all in the prior 20 testimony, about the call from Jane Mayer 21 that evening, Friday evening, March 13, and 22 we agreed that I would handle this response. 464 1 I would keep him informed. 2 The fact is that I talked to 3 Ms. Mayer. Same way as he's a spokesperson 4 but he gets his information from a lot of 5 people when he's preparing answers I would 6 imagine when you're preparing questions here 7 you're getting assistance from some of your 8 people and they're helping you prepare these 9 things but you're the one asking the 10 question. So if I say who asked the question 11 you would say you. Now, would it be correct 12 for me to say that you may be hiding the fact 13 that this gentleman here may have helped you 14 because of the way the question was asked? I 15 think that would be wrong. Mr. Bacon and I 16 certainly conferred in all the answers, but 17 when the question came up, who talked to 18 Ms. Mayer, I did. 19 Q Are you saying that Mr. Bacon did 20 not talk to Ms. Mayer about Ms. Tripp? 21 MR. ZARING: Objection. 22 Mischaracterizes the prior testimony. 465 1 BY MR. KLAYMAN: 2 Q What are you saying? 3 A I'm saying it wasn't a matter of 4 anybody hiding information on Mr. Bacon and 5 his involvement. 6 Q Well, I -- 7 A And you've been asking about that 8 in a couple of different innuendos. 9 Q I didn't make any innuendos. If 10 you feel defensive, that's you, not me. 11 A I understand. 12 Q But the point I'm trying to find 13 here is in these discussions did Bacon's name 14 come up? 15 A No. 16 Q Not even once? 17 A Correct. 18 Q And -- 19 A Well, I mean, in the course of 20 telling what happened, I certainly said -- 21 went over the time line that Mr. Bacon and I 22 had discussed this. So in that context it 466 1 came up. In terms of, you know -- in terms 2 of the phone call itself, it was always I 3 made the phone call. 4 Q However, during these discussions, 5 there had to be some discussion that what you 6 had done could be criminal? 7 MR. ZARING: Objection. 8 THE WITNESS: No, that was not part 9 of the discussion. 10 BY MR. KLAYMAN: 11 Q Then how is it your assistant comes 12 up with the statement, "Later Don delivered 13 an assessment Bernath committed a technical 14 error but no criminal intent"? 15 MR. ZARING: Asked and answered. 16 THE WITNESS: I cannot speak for 17 what he says. I told you before that the 18 words that he used may not be the words that 19 were used at the meeting. They're words that 20 would jog his memory in some way. 21 BY MR. KLAYMAN: 22 Q Then it says, "We need to look at 467 1 this closer." There was a discussion as to 2 analysis needed to be made as to whether you 3 and others had committed a criminal offense? 4 A I don't know what he meant by that. 5 Q In fact, there was a closer look as 6 to whether a crime had been committed, 7 correct? 8 MR. ZARING: Objection. 9 THE WITNESS: There is an IG 10 report -- investigation into the 11 circumstances of the release. 12 BY MR. KLAYMAN: 13 Q That report is issued? 14 A No. 15 Q Then how do you know there's a 16 report? 17 A I've been interviewed and that's 18 the interview that we gave you today. 19 Q You're talking about your 20 interview, not an IG report? 21 A Correct. There's an IG 22 investigation ongoing. It has not been 468 1 released. 2 Q You told your assistant to write 3 this, didn't you? 4 A I did not. 5 Q To write these specific words? 6 A I did not. 7 MR. ZARING: Objection. 8 BY MR. KLAYMAN: 9 Q That it was due to a technical 10 error but no criminal intent? 11 A I did not instruct him. 12 MR. ZARING: Objection. 13 BY MR. KLAYMAN: 14 Q And you instructed him to do that 15 so you'd have a record to protect yourself? 16 MR. HARDY: Objection. You don't 17 have to answer these questions. He's arguing 18 with you when he repeats his question. 19 MR. KLAYMAN: Certify it. 20 THE VIDEOGRAPHER: We're going off 21 video record at 11:27. 22 (Recess) 469 1 THE VIDEOGRAPHER: We're back on 2 video record at 11:41. 3 BY MR. KLAYMAN: 4 Q Look down to the entry on that page 5 at 1430. 6 A I'm sorry. I closed my thing here. 7 What page is that? 8 Q C on Exhibit 2. 9 A Okay. Where do you want me to 10 look? 11 Q 1430. This is an entry for 12 Tuesday, March 17, 1998? 13 MR. ZARING: It's the bottom of the 14 left-hand column. 15 THE WITNESS: Yeah, I'm looking at 16 it, okay. 17 BY MR. KLAYMAN: 18 Q "Cohen answers a question at the 19 NPC, the release of the information. Soon 20 after we take a call from Deborn (NYP), we 21 take message and we get a fax from Landmark 22 Foundation." That was written by your 470 1 assistant, Jamie? 2 A Yes. 3 Q And you knew of these events at the 4 time that he recorded them? 5 A Oh, that's the National Press Club. 6 Okay, I knew that Secretary Cohen took a 7 question at the Press Club. 8 Q And you knew at the time that he 9 took a question at the Press Club? 10 MR. HARDY: At the time of what? 11 THE WITNESS: At the time that this 12 was written or -- 13 BY MR. KLAYMAN: 14 Q Yes. 15 A I knew at the time from the Press 16 Club speech. 17 Q And you knew that in that Press 18 Club speech Secretary Cohen did not identify 19 that Ken Bacon was involved in this whole 20 Tripp incident? 21 A I'm sorry, was that a question? He 22 did not mention Mr. Bacon's name. 471 1 Q Did he mention your name? 2 A I don't remember if he did or not. 3 I think you have the transcript of the 4 speech. 5 Q Now, do you remember a call coming 6 in? I believe Deborn probably stands for 7 Debra Orin of the New York Post? 8 A I don't believe I ever talked to 9 Orin. I don't think that call ever came to 10 me. 11 Q Do you know that she made the call? 12 A Oh, I think I recall her being one 13 of many calls that came in, but again I don't 14 think it was to me. One of the many media 15 calls that came into the front office into 16 DDI. 17 Q Do you know what Debra Orin was 18 calling about? 19 A I don't -- no. I mean, I only know 20 from this, what is here. 21 Q With regard to this fax from 22 Landmark Foundation, were you aware of having 472 1 received a fax from Landmark Foundation? 2 A I don't recall seeing at that time 3 -- I mean, I'm aware now that there was one 4 from seeing all the records and everything, 5 but I don't recall at that time whether I had 6 seen it or not. 7 Q Do you know what it was about? 8 A I can't remember. 9 Q Did you throw that fax into the 10 trash? 11 A I don't even remember seeing it, 12 let alone -- no, the answer is no, I did not 13 throw it in the trash. 14 Q We haven't gotten a copy of it, so 15 I assume it was discarded? 16 A I have no idea. 17 Q You didn't take Landmark foundation 18 very seriously, did you? 19 MR. ZARING: Objection. 20 THE WITNESS: I don't know what 21 they are. 22 BY MR. KLAYMAN: 473 1 Q Then states, "The rest of the day 2 we continued to take questions. Bernath 3 drafts (coordinated with Aly) press 4 statement. All later decide this would make 5 news. Best to just answer the questions 6 taken. Bridges makes the calls, gives 7 Bernath's name to New York Post." Is that an 8 accurate recitation of what occurred that 9 day? 10 A What's there is accurate. 11 Q Excuse me? 12 A What's there is accurate, yes. 13 Q "Bernath drafts press statement." 14 Is that the letter that you identified 15 earlier or is that something else? 16 A There is a -- there was a draft 17 that I did, and this was in the earlier 18 testimony, and it's in the earlier documents 19 that were turned over to you from my first 20 deposition, a draft press statement that said 21 that we had released the information and it 22 had a small rationale, went up to Bob Tyrer, 474 1 and there's annotations of this in the 2 testimony, too, that said we didn't -- 3 eventually we decided not to go out with a 4 press statement. 5 Q Who is Aly? 6 A Stewart Aly is a general counsel 7 lawyer. 8 Q Why did you bring in a general 9 counsel lawyer to draft a press statement? 10 MR. ZARING: I object and direct 11 the witness not to reveal any communications 12 you may have had with Mr. Aly when you're 13 answering this question. 14 THE WITNESS: This was the 17th. 15 We had already decided that there might be a 16 Privacy Act implication. We had already 17 decided that we were -- you know, that I had 18 talked to lawyers, I had talked to different 19 people, so we thought it would -- among the 20 people who review this type of a 21 communication, press guidance, that we 22 thought that we should make sure that it was 475 1 legally accurate. 2 BY MR. KLAYMAN: 3 Q It says, "Bridges makes the calls, 4 gives Bernath's name to New York Post." Who 5 did Bridges call? 6 A I believe what that refers to is 7 that he probably had a string of people who 8 he owed phone calls to and he returned those 9 calls. 10 Q He was calling out to the press, 11 more than one operation, correct? 12 A Yeah. The people who he had to 13 return calls to were undoubtedly the media. 14 Q And was your name given to more 15 than th New York Post that day? I take it it 16 was. 17 A I don't know. I don't know who he 18 released it to, whether he released it to all 19 of them or some of them or one of them. 20 Q So at the time that Secretary Cohen 21 made his statement to the National Press Club 22 about the Tripp incident, your name had 476 1 already been released to the media? 2 MR. ZARING: Objection. 3 Mischaracterizes his prior testimony. 4 THE WITNESS: I don't know the 5 sequence of when the name was released and 6 all of those things, so I can't say for sure. 7 MR. KLAYMAN: Can you step out of 8 the room for an instance and go to the other 9 room, Mr. Bernath? I want to take something 10 up with counsel. 11 MR. HARDY: What do you want to 12 take up? 13 MR. KLAYMAN: I want to take 14 something up with counsel so I don't have any 15 impact on the testimony. 16 MR. HARDY: All right. 17 MR. KLAYMAN: Mr. Zaring, can you 18 tell me how my question mischaracterized 19 prior testimony? 20 MR. ZARING: Am I under examination 21 here? 22 MR. KLAYMAN: What you just did was 477 1 to feed him the answer, so I'm going to give 2 you an opportunity to explain that to the 3 court. 4 MR. ZARING: I'm not answering. 5 The objection stands. 6 MR. KLAYMAN: That's highly, highly 7 objectionable conduct. 8 MR. ZARING: The objection stands, 9 Mr. Klayman. 10 MR. KLAYMAN: Well, we will seek 11 appropriate relief from the court. The court 12 can decide how it wants to deal with this 13 kind of conduct. 14 MR. ZARING: The objection stands, 15 Mr. Klayman. 16 MR. KLAYMAN: I know it stands. 17 I'm asking you not to do it again. It occurs 18 repeatedly throughout this litigation. 19 MR. ZARING: I object to your 20 characterizations of my objection. 21 MR. KLAYMAN: We'll take lunch now. 22 MR. ZARING: Before you go off the 478 1 record, we'd like to note that none of the 2 permissible questions in the court's July 10 3 order of 1998 have yet been asked. While 4 we're willing to give you, Mr. Klayman, a lot 5 of leeway here so you get a chance to satisfy 6 yourself that you've asked all the questions 7 you can, we don't have all day, and we hope 8 that after lunch you will proceed to ask the 9 questions permitted by the court and stay 10 away from those the court did not permit. 11 MR. KLAYMAN: Are you saying we're 12 not entitled to ask questions on newly- 13 produced documents? 14 MR. ZARING: I'm just suggesting 15 that we should get to the questions for which 16 this deposition was reconvened which we 17 haven't yet, and we've been at it for two 18 hours. 19 MR. KLAYMAN: Are you saying that 20 we're not allowed to ask questions about 21 newly-produced documents? 22 MR. ZARING: I've made my 479 1 statement, Mr. Klayman, and I don't feel the 2 need to make it again. 3 MR. KLAYMAN: We'll ask the court 4 to review that issue, too. 5 MR. HARDY: What time are you going 6 to reconvene? 7 MR. KLAYMAN: An hour lunch. We'll 8 reconvene at 1:00. 9 MR. ZARING: We object to the hour 10 lunch. 11 MR. KLAYMAN: All right, well, 12 that's fine. 13 MR. ZARING: Do you want to get to 14 the questions now? 15 MR. KLAYMAN: I want to take lunch. 16 I have to take lunch. I have a prior 17 appointment. Mr. Hardy recognizes we were 18 courteous to him when we took a break. He 19 asked to take the break. I have an 20 appointment right now and an hour is 21 customary practice in this case. 22 MR. ZARING: Why don't we do half 480 1 an hour? 2 MR. KLAYMAN: I need an hour. It's 3 not unreasonable. See you at 1:00. 4 THE VIDEOGRAPHER: We're going off 5 video record at 11:54. 6 (Whereupon, at 11:54 a.m., a 7 luncheon recess was taken.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 481 1 A F T E R N O O N S E S S I O N 2 (1:00 p.m.) 3 Whereupon, 4 CLIFFORD H. BERNATH 5 was recalled as the witness and, having been 6 previously duly sworn, was examined and 7 testified further as follows: 8 THE VIDEOGRAPHER: We're back on 9 video record at 1:00 p.m. 10 EXAMINATION BY COUNSEL FOR PLAINTIFFS 11 CONTINUED 12 BY MR. KLAYMAN: 13 Q Mr. Bernath, I'll ask be marked as 14 Exhibit 3 the copy of a letter which your 15 counsel has written on June 8, 1999, 16 objecting to certain portions of the 17 subpoena, which is marked as Exhibit 1. 18 MR. HARDY: Which counsel, 19 Mr. Klayman? 20 MR. KLAYMAN: Government counsel. 21 (Bernath Deposition Exhibit 22 No. 3 was marked for 482 1 identification.) 2 BY MR. KLAYMAN: 3 Q Have you ever seen Exhibit 3 4 before, Mr. Bernath? 5 A I have. 6 Q When did you see it? 7 A Probably on the date, just 8 recently. 9 Q You saw it today? 10 A No, I may have seen a draft rather 11 than the final. 12 Q Do you approve of the contents of 13 this letter? 14 MR. HARDY: May I ask the basis for 15 that question? 16 MR. KLAYMAN: It's self-evident. 17 MR. HARDY: Unless we get a 18 proffer, I'm going to ask him not to adopt 19 the letter. I don't see why he has to adopt 20 the letter. 21 MR. KLAYMAN: Because they're 22 representing him in his government capacity. 483 1 THE WITNESS: The fact is that I 2 turned over every document I had to the 3 general counsel and made them available, and 4 I'm not qualified to rule on which ones are 5 admissible or not. That's what they do. So 6 my job was to make sure that everything that 7 I had was given to them; so I can't tell you 8 that I understand even all the specifics of 9 this. 10 BY MR. KLAYMAN: 11 Q Did you turn over documents to the 12 General Counsel's Office after this last 13 subpoena was received on June 10, 1999? 14 A I had no -- 15 Q I'm sorry. Not June 10th. After 16 this last subpoena was received, on or about 17 May 27, 1999? 18 A I had no new documents to turn 19 over. 20 Q So the answer's no? 21 A Yes, I did not turn over any new 22 documents. 484 1 Q In terms of withholding documents 2 and claiming privileges, you relied on your 3 government counsel for that? 4 A That's correct. 5 MR. KLAYMAN: I'll show you what 6 I'll ask the court reporter to mark as 7 Exhibit 4. This is a letter from your 8 private counsel, William Hardy, which was 9 provided here today, dated June 9, 1999. 10 It's a cover letter. It says that documents 11 Bates numbers 1 through 51 are being 12 provided, and attaches those documents. 13 (Bernath Deposition Exhibit 14 No. 4 was marked for 15 identification.) 16 BY MR. KLAYMAN: 17 Q Exhibit 4, have you seen this 18 before? 19 A I have. 20 Q When did you see it? 21 A When you say it, do you mean the 22 letter, or do you mean the IG -- 485 1 Q The letter. 2 A I saw it, actually, this morning, 3 but it had been discussed, I guess, 4 yesterday. 5 Q In response to your subpoena, did 6 you provide to Mr. Hardy more documents than 7 are being produced here in Exhibit 4? 8 A I gave everything that I had to the 9 general counsel, and I don't know what you 10 have, so I can't answer that question. 11 Q Attached to this cover letter from 12 Mr. Hardy are transcripts of your interviews 13 on April 8, 1999, with the Inspector General, 14 correct? 15 A Correct. 16 Q Were there documents in addition to 17 this that you provided to Mr. Hardy in 18 response to the recent subpoena, Exhibit 1? 19 A No. 20 Q Would you turn back to what was 21 marked as Exhibit 2? Do you see that? 22 A I've got Exhibit 2. Which page? 486 1 Q Turn to the first entry, which I 2 believe you put an A on with your initials, A 3 as in apple. 4 A Yes. 5 Q Do you see the entry there? 6 "Tripp's arrest record is likely to become an 7 issue? This is an area that SecDef," 8 Secretary of Defense, "are not well prepared 9 to deal with"? 10 A I see that, yes. 11 Q You wrote that, correct? 12 A I want to look at it real closely 13 and make sure that I did. 14 Mr. Klayman, I don't believe I did. 15 As I look through this, this looks like more 16 of -- this is Commander Graybeal's log, not 17 my log. 18 Q Were you aware that Graybeal had 19 written this? 20 A No, I was not. 21 Q The date is February 3, 1998, 22 correct? Excuse me. 487 1 A Friday, 3-13. 2 Q March 13, 1998? 3 A Correct. 4 Q This was the day that Ken Bacon 5 told you to go get the information to release 6 to Jane Mayer of The New Yorker, correct? 7 MR. ZARING: Objection. 8 THE WITNESS: I'm sorry. Can you 9 ask your question again? I was trying to get 10 my bearings on where we were on this thing 11 here. 12 BY MR. KLAYMAN: 13 Q Correct me if I'm wrong. In your 14 last deposition, you testified you were out 15 of town. You came back into town on 16 the 12th. The next morning, you met with Ken 17 Bacon at the Pentagon, and that was when 18 Mr. Bacon told you that he had gotten a call 19 from Jane Mayer requesting information? 20 A No. No. It was the Thursday night 21 when I came back, that he told me that he had 22 gotten the call. 488 1 Q That was the March 12th? 2 A That was the 12th, that's correct, 3 and then what we discussed then was. That I 4 would follow up with DOC Cooke and go through 5 that process the next day, and that's what we 6 did. 7 Q This entry is from the 13th, which 8 is the next day, correct? 9 A Yes. 10 Q On that next day, it lists your 11 assistant, "Jamie, 7:30 to 7:45 a.m. 12 meeting." You had a meeting about this 13 request from Jane Mayer at that time? 14 A Well, again, these are not my 15 notes, so I don't know -- I mean, I can't say 16 what these things are that are lined out 17 or -- 18 Q I didn't ask you what was lined 19 out. Use it to refresh your recollection. 20 You had a meeting at that time? 21 A Well, Mr. Klayman, what I've 22 already testified to in the last deposition 489 1 was the whole sequence of events from 2 March 12TH through where we were at that 3 deposition. So that, I would hope, would be 4 the record of it, rather than somebody else's 5 notes. 6 Q I'm just asking what you know. You 7 had a meeting about Tripp on that date? 8 MR. ZARING: That's asked and 9 answered. 10 MR. KLAYMAN: No, it wasn't 11 answered. 12 THE WITNESS: Well, if I'm going to 13 answer questions about that day, I would 14 rather refer to my notes from that date. 15 BY MR. KLAYMAN: 16 Q Just tell me what you remember 17 today. 18 A You mean, starting with the 19 sequence of events? 20 MR. ZARING: Objection. 21 BY MR. KLAYMAN: 22 Q I'm just asking about that meeting. 490 1 I just said you had a meeting on Tripp 2 between 7:30 and 7:45 a.m. 3 MR. ZARING: Mr. Bernath has gone 4 over this testimony before in his prior 5 deposition, and I don't think this deposition 6 is the place to ask that series of events. 7 MR. KLAYMAN: We never had the 8 document before. 9 THE WITNESS: You had all my 10 documents that went over the sequence before. 11 BY MR. KLAYMAN: 12 Q We never had this document before. 13 A I can't attest to anything on this 14 document. 15 MR. ZARING: We're not objecting to 16 any questions about this document. What we 17 are objecting to is going through the 18 testimony again that he provided in the last 19 deposition about the sequence of events. 20 MR. KLAYMAN: The truth's the 21 truth. I'm just asking for the truth. 22 That's all. Just tell me what he remembers. 491 1 MR. ZARING: The objection still 2 stands, Mr. Klayman. 3 MR. KLAYMAN: It's not a question 4 of keeping your story straight. 5 MR. ZARING: The objection still 6 stands. 7 BY MR. KLAYMAN: 8 Q Do you remember a meeting on that 9 day? 10 MR. ZARING: Objection. 11 BY MR. KLAYMAN: 12 Q Around 7:30 to 7:45 a.m.? 13 MR. ZARING: Objection. 14 THE WITNESS: The answer is, I 15 don't remember. You know, I'm looking at 16 this, and it's not jogging a memory. 17 BY MR. KLAYMAN: 18 Q Do you remember that from 4:45 19 to 5:15 p.m., as listed here, Bacon met with 20 you, Bernath, and Bridges, and it discussed 21 Bacon's wrap-up meeting before going on 22 leave? That refreshes your recollection, 492 1 doesn't it, that you had a meeting with 2 Bridges and Bernath? 3 A It's entirely possible. I don't 4 dispute it. You know, I don't remember 5 anything about a 15-minute meeting a year and 6 a half ago. I don't, you know, and this -- 7 you know, my notes might tell me something 8 that would jog it. Jamie's notes don't tell 9 me anything to jog it. I'm not saying there 10 wasn't a meeting. I'm saying I don't 11 remember anything from the meeting. 12 Q You obviously had meetings on 13 the 13th, correct? 14 A I'm not denying that. 15 Q You recall discussing on that date 16 that Tripp's arrest record is likely to 17 become an issue? 18 A I don't know what that refers to. 19 MR. ZARING: Objection. I think 20 we've gone far enough on this. We don't want 21 to go through this testimony again, and I 22 don't think that's authorized by the court's 493 1 order. 2 MR. KLAYMAN: We've never had this 3 before. 4 MR. ZARING: Why don't you move on? 5 MR. KLAYMAN: I don't understand 6 your problem here. Are you here to represent 7 getting the truth out, or are you here to not 8 get the truth out? What's the point here? 9 MR. ZARING: I'm not going to 10 answer that. 11 MR. KLAYMAN: You're telling me to 12 forgo asking questions to try to get the 13 truth of what went on here? 14 MR. ZARING: Mr. Klayman, I'm 15 basing my objection on the court's order of 16 the scope of this redeposition. 17 MR. KLAYMAN: This is within the 18 scope, not only the questions but it's also 19 with a document that was produced after the 20 court's order, pursuant to the court's order. 21 MR. ZARING: I'd like the record to 22 reflect that the witness has testified to 494 1 everything he knows about this document 2 already. 3 MR. KLAYMAN: Where does the record 4 reflect that? Make a good faith proffer for 5 the court. 6 MR. ZARING: The record stands on 7 its own. 8 MR. KLAYMAN: Why are you 9 continuing to obstruct my deposition? 10 MR. ZARING: The last thing I want 11 to do is obstruct your deposition, 12 Mr. Klayman. 13 MR. KLAYMAN: Then please don't do 14 it. 15 MR. ZARING: I think that's a 16 mischaracterization of what's going on here. 17 BY MR. KLAYMAN: 18 Q You recollect discussing on that 19 day that Tripp's arrest record is likely to 20 become an issue, correct? 21 A I said no, I didn't. 22 Q You're sure you didn't? 495 1 A I did not say that. You can keep 2 trying to twist this, but I said I do not 3 remember if there was a meeting that day. 4 Q We've got counsel over here 5 nodding, looking at Mr. Bernath. What's your 6 name, sir? Nodding a yes sign to the 7 witness. What's your name? What's your 8 name? 9 MR. WIEGMANN: I don't have to 10 engage in colloquies with you, Mr. Klayman. 11 MR. KLAYMAN: Why were you looking 12 at the witness nodding yes? 13 MR. WIEGMANN: I wasn't nodding at 14 the witness. 15 MR. KLAYMAN: That's clearly what 16 you were doing. 17 THE WITNESS: Mr. Klayman, just for 18 the record. I was looking at you. I didn't 19 see him. I'm trying to answer your questions 20 the best I can. 21 MR. KLAYMAN: I'm trying to get a 22 proper decorum here. This is not a proper 496 1 decorum. The objections are not legitimate 2 objections, and we've got a lawyer from the 3 Department of Defense nodding answers to you. 4 MR. GAFFNEY: I was sitting next to 5 Mr. Wiegmann, and I didn't see him nodding at 6 the witness. I saw him nodding at 7 Mr. Zaring. 8 MR. KLAYMAN: I wouldn't expect you 9 to see it, Mr. Gaffney. 10 MR. GAFFNEY: What does that mean? 11 MR. KLAYMAN: That is civility, 12 because you weren't even looking at him. 13 MR. GAFFNEY: That's not true, 14 Mr. Klayman. 15 THE WITNESS: But I'm focussing on 16 you. 17 BY MR. KLAYMAN: 18 Q Did anyone discuss that day Tripp's 19 arrest record is likely to become an issue? 20 A My answer again is, I don't 21 remember that specifically, no. But I don't 22 remember it. 497 1 Q It may have been discussed? 2 A The answer is, I don't remember it. 3 Q Did anyone say, this is an area 4 that the Secretary of Defense are not well 5 prepared to deal with? 6 A You are reading somebody else's 7 notes about a meeting that happened. I don't 8 specifically remember it. 9 Q You previously testified that your 10 assistant kept notes about events that 11 occurred that day, correct? 12 A That's right, but I haven't 13 verified the authenticity or what words he 14 used. I specifically said, that if he's like 15 me, he didn't use exact words. 16 Q Have you ever known your assistant 17 to fabricate anything? 18 A I'm not saying that he fabricated. 19 I'm saying that his recollection and the 20 words he used may not be the same ones I 21 would have used, and they're not the ones 22 that are jogging a specific memory right now. 498 1 Q Have you ever known your assistant 2 to be dishonest? 3 A He is not dishonest. 4 MR. ZARING: Objection. 5 BY MR. KLAYMAN: 6 Q Have you ever known him to make 7 anything up? 8 MR. ZARING: Objection, asked and 9 answered. 10 THE WITNESS: He's not dishonest, 11 and I'm not testifying that he made anything 12 up. 13 BY MR. KLAYMAN: 14 Q Based on the phraseology here, do 15 you have any idea as to who may have made 16 those statements, if it wasn't you? 17 A No, I don't. 18 Q Could it have been a duty officer 19 by the name of Hansen? 20 MR. HARDY: Objection. He's 21 already answered that. 22 MR. KLAYMAN: With regard to 499 1 Hansen? 2 MR. HARDY: He said he doesn't know 3 who made it up. 4 MR. KLAYMAN: I thought it might 5 have jogged his recollection. 6 MR. HARDY: He said he doesn't have 7 a recollection. 8 MR. KLAYMAN: Are you telling him 9 not to have a recollection? That's what it 10 seems like to me. Certify it. 11 BY MR. KLAYMAN: 12 Q Would you please tell me, 13 Mr. Bernath, what discussions that you had 14 with other Pentagon employees about 15 information in Linda Tripp's personnel files? 16 MR. ZARING: I object, to the 17 extent that may call for attorney-client 18 privilege, but otherwise, you can answer that 19 question. 20 MR. KLAYMAN: I just read verbatim. 21 I'm sure you've gone over this with him, 22 Mr. Zaring. I just read verbatim the judge's 500 1 order, and I expect, and I'm sure the court 2 would expect it as well, a full and complete 3 response to that question. 4 BY MR. KLAYMAN: 5 Q Before you give it, have you gone 6 over this specific question with counsel 7 before? 8 MR. ZARING: I object. 9 MR. HARDY: Object. Don't answer 10 that. 11 MR. KLAYMAN: Certify it. 12 THE WITNESS: In regard to the 13 release of the information from her file, I 14 talked, as I said earlier, to lawyers 15 including Stew Aly and Don Perkal. I talked 16 to the Freedom of Information people, 17 Mr. Passarella, Mr. Talbot. Mr. Bacon and I 18 certainly have discussed it. Colonel Bridges 19 and I have discussed it. 20 BY MR. KLAYMAN: 21 Q What did you discuss with Colonel 22 Bridges? 501 1 A Well, I discussed with him the 2 sequence of events, you know, leading up to 3 the release, exactly what I released, when I 4 released it, and the details of the release. 5 Q Let's start with Bridges. Tell me 6 everything that you said to Bridges and when. 7 A Well, it's the same -- all of this 8 was within, you know, from the time of the 9 release, you know, that Friday afternoon 10 through the next few days. 11 Q I'll tell you what. Before you do 12 that, let's list all the people, okay? So 13 Bacon, Bridges, who else? Perkal? 14 A Perkal, Aly, Passarella, Talbot, 15 and then, you know, shortly thereafter, the 16 independent -- the IG, which is the testimony 17 you have in front of you. 18 Q Anyone else? 19 A The FBI, in conjunction with the 20 Independent Counsel probe, Bob Tyrer. I 21 think that's pretty -- those are the names 22 that I remember. 502 1 Q When did you have specific 2 conversations about Linda Tripp's personnel 3 files with Kenneth Bacon? 4 A On the 13th, you know, as we were 5 gathering information. 6 Q What was discussed on the 13th with 7 Mr. Bacon? 8 A Well, this is the testimony that 9 I've already done at the first one. 10 Q You're ordered to answer it here, 11 so give it to me now. 12 A Okay, the evening of the 12th, I 13 got back from leave, talked to Mr. Bacon. He 14 had had a call from Jane Mayer -- This is 15 something, Mr. Klayman, that we can read. 16 You know, is it worthy of going through this 17 right now? 18 Q The court has ordered that you go 19 through it right now. 20 A So we talked about Mayer. Mayer 21 asked the question. Mr. Bacon asked me to 22 see what information I could find out. The 503 1 next day I talked to DOC Cooke, to see if I 2 could get the information. During the course 3 of the morning, I obtained the information, 4 and up to the time of the release, nobody 5 else -- only Mr. Bacon and I were really 6 involved in it. 7 After the release of the 8 information, I made a record of the 9 conversation, that it was three questions, I 10 believe, that she had asked -- 11 Q Let me stop you there. At what 12 time on the 13th did the release occur? 13 MR. HARDY: Wait a minute. Let him 14 finish his answer. You asked a question. 15 You want an answer. He's not finished yet. 16 Let him finish. 17 MR. KLAYMAN: That's fine. 18 THE WITNESS: I mean, the 19 release -- I would like to see my testimony. 20 I would like to see my deposition. 21 BY MR. KLAYMAN: 22 Q Just tell us what you remember now. 504 1 A Well, then you can't ask me the 2 specific question, because 18 or 17 months 3 later, I don't have, you know, the minute by 4 minute breakdown. 5 So sometime in the late afternoon, 6 or mid afternoon, is when I released the 7 information to Ms. Mayer. Towards 8 evening, 5:00, or 6:00, is when I wrote a 9 memo of the conversation with Ms. Mayer, 10 which I showed to Mr. Bacon, which I went 11 back and showed to the duty officer, who was 12 Ms. Hansen. 13 Ms. Hansen was the one who said 14 that, you know, maybe these answers have a 15 Privacy Act implication. At which time, I 16 extracted the answers from my memorandum and 17 left the rest of the memo with her and 18 Mr. Bacon. 19 MR. ZARING: Can we take a 20 two-minute break? No, continue your answer. 21 MR. KLAYMAN: I'm in the middle of 22 a question. 505 1 THE WITNESS: So that was Friday 2 and -- 3 BY MR. KLAYMAN: 4 Q Friday, the 13th? 5 A Friday the 13th. 6 Q After you released the information 7 to Jane Mayer, you had a conversation with 8 Mr. Bridges, Colonel Bridges? 9 A I don't think with Colonel Bridges 10 that night. It was with Susan Hansen. 11 Colonel Bridges was on Monday, where probably 12 Mr. Bacon, and I and Bridges, kind of, must 13 have gone over the details of it. I don't 14 remember any specifics, but we probably 15 discussed, you know, she had asked the 16 questions and what happened with it. 17 MR. KLAYMAN: Excuse me. Could 18 Justice Department counsel not make so much 19 noise. It's distracting to the witness, and 20 it's distracting to us. Thank you. 21 MR. ZARING: I guess we'd like to 22 refer you, Mr. Klayman, to the court's 506 1 July 10th order of 1998. Consisting with 2 what that order says, with regards to 3 question 2, which I believe is the question 4 you're consulting the witness now, and I'm 5 quoting, "Consistent with the terms of the 6 protective order" -- 7 MR. HARDY: Excuse me. Can you 8 tell me where you are reading from? 9 MS. WEISMANN: This is the 10 July 10, 1998 order. 11 MR. HARDY: I mean, where in the 12 order? It's about 30 or 40 pages. I think 13 it would be helpful -- 14 MS. WEISMANN: I agree. 15 MR. ZARING: It says, "Consistent 16 with the terms of the protective order" -- 17 MR. HARDY: I just want to catch up 18 with you. 19 MR. ZARING: Sorry. 20 MR. HARDY: The order is 45 -- 21 MS. WEISMANN: Right, I agree. 22 This is where the court says exclusively 507 1 question two, what part of it he can 2 reexamine him on, because it relates to a 3 very specific objection that was raised. 4 MR. HARDY: Okay. It's page 28 of 5 the judge's July 28th order? 6 MS. WEISMANN: Correct. 7 MR. HARDY: All right. Thank you. 8 MR. ZARING: "Consistent with the 9 terms of the protective order," I'm reading 10 from page 29, "Plaintiffs may question 11 Bernath regarding conversations he had with 12 Cooke and counsel for Bernath, may designate 13 the testimony as subject to the terms of the 14 protective order." The objection is subject 15 this, to the portion of this court's order, 16 as you probably know, on page 238 of the 17 original deposition of Clifford Bernath. 18 MR. KLAYMAN: I don't see where the 19 judge is limiting us to only asking about 20 Cooke. That looks to me like it's just an 21 example that he talked to Cooke that day. 22 You're reading at pages 28 and 29? 508 1 MR. ZARING: Yes, or 29 and 30. 2 MR. KLAYMAN: The judge is just 3 saying that he had conversations those days 4 with Pentagon employees. 5 MR. ZARING: It would be better for 6 us if we took a break now. I don't know how 7 you feel about it. 8 MR. KLAYMAN: All right. Go off 9 the record. 10 THE VIDEOGRAPHER: We're going off 11 video record at 1:30. 12 (Recess) 13 THE VIDEOGRAPHER: We're back on 14 video record at 1:37. 15 THE WITNESS: Where were we? 16 MR. KLAYMAN: Can you read the last 17 response? 18 (The reporter read the record as 19 requested.) 20 BY MR. KLAYMAN: 21 Q What was discussed that evening 22 with Colonel Hansen? 509 1 A Ms. Hansen. 2 Q Ms. Hansen. 3 A That was the -- and again, this is 4 all in my prior testimony. That was the 5 discussion that the answer to a question on 6 this form may have a privacy implication, and 7 that's all it was. 8 Q You discussed the Privacy Act with 9 Ms. Hansen? 10 A No, I did not discuss the Privacy 11 Act. She said there might be a privacy 12 implication. Again, I would like to refer 13 you to my answers. They haven't changed. I 14 have nothing new to add on the conversation 15 with what I did with Ms. Hansen. It was 16 discussed completely. 17 MR. KLAYMAN: Is counsel, 18 government counsel or private counsel, 19 instructing him not to answer these questions 20 pursuant to the court order, or only to refer 21 back to his earlier testimony? Where do you 22 stand on that? It seems that the witness is 510 1 not being cooperative here. 2 THE WITNESS: I disagree. I'm 3 trying to be as cooperative as I can. You're 4 asking me to recall in great specificity 5 things that have already been answered in 6 previous testimony and that is in front of 7 us, and, you know, I'd be happy to read it 8 back to you. 9 BY MR. KLAYMAN: 10 Q I really don't want it read back, 11 Mr. Bernath. I just want you to tell me what 12 you remember now, and that's what the court 13 order requires. 14 MR. HARDY: I think he's answering 15 your question. 16 MR. ZARING: Yes. 17 MR. HARDY: He's adopting what he's 18 previously said, and he has nothing more to 19 add to it. 20 MR. KLAYMAN: Then why did we go 21 through the exercise with the court? 22 BY MR. KLAYMAN: 511 1 Q Why didn't you or your attorneys 2 just tell the court when our motions were 3 filed, that you said everything, and you have 4 nothing more to add? 5 MR. ZARING: We don't want to 6 engage in colloquy with you, Mr. Klayman, but 7 if you want to continue to ask your 8 questions, we haven't objected. 9 MR. KLAYMAN: I'm asking you as 10 counsel and officers of the court to instruct 11 your client to cooperate. 12 MR. ZARING: That's a 13 mischaracterization of what is going on here. 14 THE WITNESS: I'm trying to 15 cooperate with you. 16 MR. KLAYMAN: It's quite clear. 17 We've been going on for about half an hour. 18 We have gotten all of one or two questions 19 answered. It looks like he's refusing to 20 answer any questions today. It's as if this 21 deposition never even took place. He's 22 effectively saying, my earlier deposition's 512 1 enough. That's all that I'm going to testify 2 to. 3 MR. ZARING: That's a 4 mischaracterization of what's happened, for 5 the record, but continue to ask questions. 6 BY MR. KLAYMAN: 7 Q I want you to answer the question 8 as of today, Mr. Bernath. That's what the 9 court order requires. 10 MR. HARDY: Mr. Klayman, he did 11 answer the question, so if you have another 12 question, please ask it. He'll answer it. 13 If you don't like the answer, take it up with 14 some other forum. He did answer the 15 question, and as far as I can tell, he has no 16 more answers to give you. 17 MR. KLAYMAN: It's not sufficient 18 to say I testified to this before, when the 19 court has ordered him to testify about it 20 today. 21 MR. HARRIS: Mr. Klayman, he has 22 testified. He gave an answer. You asked a 513 1 question. If you have another question, 2 please ask it. 3 BY MR. KLAYMAN: 4 Q With all due respect, and it's not 5 in any way intending to offend you, 6 Mr. Bernath, it would appear in my view the 7 reason you don't want to testify today is 8 because you're going to say something 9 inconsistent with what you may have testified 10 to before. 11 MR. HARDY: Regardless of -- 12 MR. ZARING: We object to that 13 characterization. Please continue with the 14 examination. 15 BY MR. KLAYMAN: 16 Q We understand that there's the 17 passage of time. We understand your 18 statement, that your memory may not be as 19 good. With those qualifiers, would you 20 please answer the question as of today? 21 MR. HARDY: Which question are you 22 asking him? Just a minute. Which question 514 1 are you posing to him now? 2 BY MR. KLAYMAN: 3 Q What was discussed with Ms. Hansen? 4 MR. HARDY: I think he answered 5 that. 6 BY MR. KLAYMAN: 7 Q I asked specifically, you discussed 8 the Privacy Act; didn't you? 9 A I said no. 10 Q Going back to Exhibit 2, to the 11 page that you marked C. 12 A Okay. 13 Q I might also add for the record, 14 Mr. Fitton informs me that Ms. Hansen is not 15 mentioned in the prior transcript of the 16 earlier deposition of Mr. Bernath. 17 A I believe she is. 18 MR. FITTON: Based on the index. 19 THE WITNESS: I believe she is. If 20 you'd like me to find it, I think I can. 21 BY MR. KLAYMAN: 22 Q No. That's our observation. If 515 1 we're wrong, we're wrong. I want you to 2 testify right now. 3 Do you see that entry there, "Duty 4 Officer Hansen raises the question of the 5 Privacy Act with regard to the actual 6 response" -- 7 MR. HARDY: Where is that again? 8 THE WITNESS: Again, what you're 9 seeing here, first of all, Commander Graybeal 10 was not at that meeting, so he's taking notes 11 on -- 12 BY MR. KLAYMAN: 13 Q On what you told him? 14 A On what I told him or somebody else 15 told him, but it's not exactly accurate. 16 What was accurate is what I'm telling you. 17 When I brought this question and answer to 18 her, she said, this may have a privacy 19 implication, and based on that, I deleted the 20 answer that I gave, which was basically the 21 information that I released, and left the 22 questions that were asked in the RTQ, which 516 1 is response to query. 2 So we never talked about the 3 Privacy Act. We never had a long 4 conversation. This whole conversation with 5 Ms. Hansen was about one minute. So again, 6 his characterization of a meeting that he 7 wasn't at is not as accurate as what I'm 8 telling you now. 9 Q Was it standard operating procedure 10 for people who Mr. Graybeal was not assigned 11 to work for to have him take notes? 12 A This is an individual way that he 13 operated, and he took notes on things to jog 14 his memory. I can't speak for his notes. 15 Q The reference to privacy, that 16 referred to Privacy Act, correct? 17 A We did not discuss Privacy Act. 18 Privacy Act never came up. There was a 19 question that might refer to privacy, and 20 that's all that was said. 21 Q Why would the issue of privacy come 22 up, if you didn't refer to the Privacy Act? 517 1 A I can't answer the question any 2 better than I just answered it. I told you 3 exactly what happened. I can't answer 4 questions about what if or things like that. 5 I don't know how to do that. 6 Q So at the time you released the 7 information on Linda Tripp to Jane Mayer, you 8 knew, at a minimum, there was a privacy 9 issue? 10 A That's incorrect. This is after 11 the information was released. The 12 information was released mid-afternoon. This 13 conversation with Susan Hansen was in the 14 evening. 15 Q How did you revise the RTQ? 16 A I deleted the -- in the original 17 RTQ -- and actually, RTQ is an incorrect term 18 also. An RTQ is a proposal of how to answer 19 a question that's asked. What I prepared was 20 a memorandum of what was asked and answered, 21 so that people would know that this phone 22 call came in and what was asked and answered. 518 1 How I amended it was, that once a privacy 2 matter was a matter of concern, I deleted the 3 answers, so that the form itself did not 4 contain a privacy violation, if, in fact, it 5 was going to be one. 6 Q This issue about Tripp's arrest 7 record was then deleted? 8 A No, the issue of how I answered a 9 specific question was deleted from the 10 memorandum phone call that I had, so that 11 only the questions remained and not the 12 answers. 13 Q Because at that point, you knew 14 that to disclose it would violate the Privacy 15 Act? 16 MR. ZARING: Objection. 17 THE WITNESS: No, that's not what I 18 said. 19 BY MR. KLAYMAN: 20 Q That's what I asked you. 21 A What I knew at that time, was that 22 if there was a question about it, I didn't 519 1 want to do anything to further exacerbate the 2 problem. 3 MR. KLAYMAN: I'll show you what 4 I'll ask the court reporter to mark as the 5 next exhibit. 6 (Bernath Deposition Exhibit 7 No. 5 was marked for 8 identification.) 9 BY MR. KLAYMAN: 10 Q Is this a copy of the RTQ which you 11 revised? 12 A No, this is different than what 13 we're talking about. 14 Q What is this? 15 A This was a statement that I 16 proposed that we release to the media 17 March 18th on the release of the information. 18 I can't remember the exact words. It was 19 basically that -- 20 MR. ZARING: Objection. This is 21 subject to a deliberative process privilege 22 claim, which was upheld by the court. We 520 1 instruct the witness not to answer any 2 information based on the redacted materials. 3 THE WITNESS: This is not the thing 4 that we have just been talking about. This 5 is different. 6 BY MR. KLAYMAN: 7 Q The reference to, "This is an area 8 that Secretary of Defense are not prepared to 9 deal with," that's a statement that was made 10 by Mr. Bacon? 11 A I don't recall. 12 Q This reflects an effort inside the 13 Department of Defense not to advise William 14 Cohen what had gone on with regard to Linda 15 Tripp? 16 MR. HARDY: Objection. You don't 17 have to answer that. 18 MR. KLAYMAN: You do have to answer 19 that. Are you instructing him not to answer? 20 MR. HARDY: Yes. 21 MR. KLAYMAN: Certify it. What's 22 the basis for your instruction? 521 1 MR. HARDY: We'll take it up later. 2 MR. KLAYMAN: What's the basis? 3 MR. HARDY: I'm not giving you a 4 basis. I'm just telling him not to answer 5 it. It calls for speculation. 6 BY MR. KLAYMAN: 7 Q Was there a discussion inside the 8 Department of Defense that the Secretary of 9 Defense William Cohen didn't need to know 10 about what had occurred with Linda Tripp 11 during those first few days after the 12 release? 13 A No. 14 Q Do you know of any such discussion 15 after that? 16 A No. No. 17 Q You can't speak for other people 18 who may have had such discussion, correct? 19 A You asked me if I was aware of any. 20 No. 21 Q You don't know whether or not 22 Secretary Bacon and others conspired to keep 522 1 this from Secretary of Defense Cohen? 2 A It would be highly doubtful that 3 they would do that. 4 Q You don't have any information to 5 that effect; do you? 6 A That's correct. 7 Q You don't have any information that 8 as to whether or not Secretary of Defense 9 Cohen instructed Bacon to keep the issue of 10 Bacon's involvement from the public? 11 A That would be highly unlikely, but 12 I have no information on it. 13 Q The basis that you say it's highly 14 unlikely is your view that Ken Bacon and 15 Secretary of Defense Cohen are honest people? 16 A That's correct. 17 Q You've had a lot of contact with 18 Secretary Cohen? 19 A Not very much, no. 20 Q From that very little contact, you 21 were able to determine he's a very honest 22 person? 523 1 A Everything I know about him is 2 honest, and I've had a great deal of work 3 with Ken Bacon and know him to be completely 4 honest. 5 Q Are there any other discussions 6 that you had with Ken Bacon concerning Linda 7 Tripp's Pentagon file release? 8 A I'm sure, over the course of the 9 next few days, we discussed it at least 10 occasionally, but I don't think that there 11 was any additional information. It was 12 mainly just, you know, if a new question came 13 up, or a new press query came up, we would 14 discuss it. 15 Q Again, we have your qualifier, 16 there's been a passage of a year. Your 17 memory may not be as good, you claim. Just 18 tell me everything about Bacon you remember 19 as of today. A lot of things have been going 20 on that may have refreshed your recollection. 21 A I thought I just did that. 22 Q During that year, you were 524 1 interviewed by the Inspector General, 2 correct? 3 A I was. 4 Q You discussed the issue with other 5 people, correct? 6 A Very limited. 7 Q You reviewed documents, correct? 8 A I have. 9 Q Just tell me, as of today, 10 everything you discussed with Bacon and when, 11 and we can move this thing along very 12 quickly? 13 A I'm trying to do that, Mr. Klayman, 14 and I just told you that I'm sure we had 15 conversations over the day following, and we 16 would discuss press queries as they came up. 17 I can't give you times and dates. 18 Q Give me, if you can't give me times 19 and dates, everything that was discussed. 20 A I just did. We talked about, if 21 somebody would call up and ask a question, we 22 would talk about it, but I doubt if there 525 1 were more than three or four conversations on 2 it, because once he got back, you know, 3 from -- back in the office, he was gone for a 4 few days, I pretty much bowed out of it, and 5 I didn't have many direct dealings on it any 6 more. 7 Q Turn your attention to page 63 of 8 Exhibit 2. What is page 63? 9 A I have no idea what page 63 is. 10 Q It's a question. Question 1, 11 "Please describe in detail how Mr. Bernath 12 obtained access to the Tripp file." 13 A I have never seen this document, 14 Mr. Klayman. 15 MR. HARDY: What is the question? 16 MR. KLAYMAN: It's just what the 17 question was. I asked him if he could 18 identify Document 63 of Exhibit 2. 19 THE WITNESS: All I can say -- 20 MR. ZARING: Asked and answered. 21 THE WITNESS: Is that it's 22 Document 63. I've never seen the document 526 1 before now. 2 BY MR. KLAYMAN: 3 Q Apparently somebody was asking 4 questions, because there's a question 5 Number 1, "Please describe in detail how 6 Mr. Bernath obtained access to the Tripp 7 file," correct? 8 A Yes, that's what it says on this 9 page. 10 Q You see the handwriting below; is 11 that your handwriting? 12 A It is not. 13 Q Do you know whose it is? 14 A No, I don't. 15 Q In reading the answer, maybe this 16 will refresh your recollection. "On 17 March 13, 1998 (approx. noon) Mr. Clifford 18 Bernath (ASDPA) called the Chief, Office of 19 FOIA and Privacy Defense Security Service and 20 requested some information contained on 21 Ms. Linda R. Tripp's prior DD 22 Form 398 'Personnel Security Questionnaire.' 527 1 Specifically, how she answered a certain 2 question regarding arrests/convictions. The 3 Chief, Office of the FOIA/PA informed 4 Mr. Bernath that DSS files were located in 5 Baltimore and would have to be located." 6 MR. HARDY: I think it's DSS; isn't 7 it? 8 BY MR. KLAYMAN: 9 Q DSS, who was that chief? 10 A Well, it's not a title that I 11 recognize. The director of Public Affairs 12 FOIA was Tony Passarella, so this could be 13 referring to him, or it could be referring to 14 Charlie Talbot. But again, since I didn't 15 write this, and I don't know who's being 16 asked the question, I don't know who -- 17 Q You provided the information for 18 this response? 19 A I did not provide this information. 20 I've never seen this document before. I've 21 never seen these questions before. This has 22 nothing to do with me, other than the fact 528 1 that it's about me. 2 Q If this is a Department of Defense 3 document, it was totally manufactured? 4 MR. ZARING: Objection. 5 BY MR. KLAYMAN: 6 Q Without your input? 7 A That's not what I'm saying. 8 MR. ZARING: Objection. 9 MR. HARDY: Don't answer it. 10 THE WITNESS: It's not my document. 11 BY MR. KLAYMAN: 12 Q It then says, "He was asked if he 13 had Ms. Tripp's SSN to help the DSS records 14 custodian locate her file. Mr. Bernath 15 provided Ms. Tripp's SSN and was informed by 16 the FOIA/PA Chief that DSS would get back to 17 him when we located the information. After 18 informing the DSS General Counsel" -- do you 19 know who the DSS general counsel was? 20 A No. 21 Q "Of the request and verifying 22 Mr. Bernath's title and location, the DSS 529 1 FOIA/PA Chief contacted the Chief, DSS 2 Privacy Branch in Baltimore and requested he 3 obtain from files division a copy of 4 Ms. Tripp's DD Form 398 and fax it to the 5 DSSHQ. After approximately 30 minutes had 6 elapsed, Mr. Bernath called the DSS FOIA/PA 7 Chief to see if the record had been located." 8 You remember that; don't you? 9 A I remember calling and asking 10 about, you know, the progress of the search, 11 yes. 12 Q Whom did you talk to? 13 A I can't remember his name. Might 14 have been Hal. It's in the original notes. 15 If I could look through it, I could tell you, 16 but I can't remember it right now. 17 Q You want to look at Exhibit 2? 18 A No. No. No. It's in original 19 testimony, the name. 20 Q His name is Hal? 21 A I can't remember his name. 22 Q It then says, "He was informed by 530 1 the Chief that DSS files division was in the 2 process of searching for her file and did he 3 need it by a certain time. He," meaning you, 4 Mr. Bernath, "indicated he had a Secretary of 5 Defense meeting in an hour so wished the 6 information as soon as possible." 7 MR. ZARING: Object. I don't 8 believe that accurately portrays the written 9 record. SecDef, not Secretary of Defense. 10 BY MR. KLAYMAN: 11 Q Fine. "He indicated he had a 12 SecDef meeting in an hour so wished the 13 information as soon as possible." 14 A You see I don't agree with that. I 15 never had a meeting with the SecDef on the 16 subject, and what I recall saying was, I had 17 a deadline with a reporter, but I don't 18 believe I ever had a meeting -- I know I 19 never had a meeting with the SecDef. 20 Q Taken on face value, this document 21 is saying that you want the information on 22 Tripp so you could take it to a meeting with 531 1 SecDef? 2 A But I don't agree with that 3 characterization. Since I had nothing to do 4 with the question or the answer, I don't 5 agree with that. 6 Q The reference to SecDef, that means 7 Secretary of Defense, correct? 8 A That's correct. 9 Q That's terminology used inside the 10 Pentagon? 11 A Yes. Again, I don't know who's 12 talking. I don't know who's doing the 13 answering, and I don't know anything about 14 that. So I disagree with that 15 characterization that I ever said that. 16 Q Do you know why anybody would make 17 this up? 18 A I don't think people make things 19 up. I think that people hear things 20 differently, record things differently. This 21 might be, you know, a very minor point to 22 somebody. 532 1 Q Has anyone ever brought this to 2 your attention before, other than Larry 3 Klayman today in a deposition? 4 A No. 5 Q This writing? 6 A That's right. This is the first 7 time I'm seeing this. 8 Q Did the Independent Counsel ever 9 ask you -- 10 A No. 11 Q Did the Inspector General ever ask 12 you a question about this? 13 A No. About a meeting with the 14 Secretary of Defense? 15 Q Yeah. 16 A No. 17 Q Did anybody ever question you about 18 this document before? 19 A No. 20 MR. HARDY: Mr. Klayman, he said no 21 one ever brought it up with him ever before. 22 MR. KLAYMAN: I didn't hear that 533 1 yet. 2 THE WITNESS: Yes, this is the 3 first time I'm seeing this. I never heard 4 this sentence before. 5 BY MR. KLAYMAN: 6 Q No one's ever brought this document 7 to your attention? 8 A That's correct. 9 Q You've never seen this document? 10 A That's correct. 11 Q If this was true, if you were 12 getting the information about Tripp, 13 understanding, you refute that, to take to a 14 meeting with the Secretary of Defense, this 15 would be a very significant fact; wouldn't 16 it? 17 MR. HARDY: I object. The answer 18 to that question calls for speculation, and 19 he's not required to speculate, so he doesn't 20 have to answer that one. 21 MR. KLAYMAN: Are you instructing 22 him not to answer? 534 1 MR. HARDY: Yes. 2 MR. KLAYMAN: Certify it. 3 BY MR. KLAYMAN: 4 Q Don't you find it strange that no 5 one has ever asked you about this document 6 before? 7 A No. I've been asked a lot of 8 questions, probably I haven't been asked a 9 lot of questions. I don't know. 10 Q Do you know if anyone has been 11 questioned about the Secretary of Defense's 12 involvement, if any, in the Tripp release? 13 A Do I know if anybody has been 14 questioned about that subject? Is that what 15 you just -- 16 Q Yes. I mean whether it was 17 Independent Counsel Ken Starr's office, 18 whether it was the Inspector General, whether 19 it was internal discussions, has anyone ever 20 been asked a question, that you know of, was 21 Secretary Defense Cohen involved in the 22 release of the information about Linda Tripp? 535 1 A I've been asked the question. 2 Q Who asked you the question? 3 A The Independent Counsel. 4 Q What did you say? 5 A No. 6 Q Did anyone in the Inspector 7 General's office of the Pentagon ever ask you 8 that question? 9 A No. I'd have to review that 10 testimony, but I don't believe that ever came 11 up. 12 Q Before you testified to the 13 Inspector General, and this is Exhibit 4, you 14 were questioned by Mr. Pavlik, correct? 15 A Correct. 16 Q I take it, before that testimony 17 took place, you had a conversation with 18 Mr. Pavlik? 19 MR. ZARING: Is there a foundation 20 for this? 21 MR. KLAYMAN: Make your objection. 22 MR. ZARING: I object. Lack of 536 1 foundation. 2 THE WITNESS: Is your question, did 3 I ever talk to him, before I gave him my 4 testimony here? 5 BY MR. KLAYMAN: 6 Q Yes. 7 A No, I don't believe so. I think 8 that this was our first meeting. 9 Q You had talked with people from the 10 Inspector General's office, however? 11 A No. About this case? No. 12 Q About the Tripp release? 13 A No. No. Not the IG. 14 Q Do you know if anybody in the 15 Department had talked to the IG about the 16 Tripp release before you testified? 17 A Before I did this? 18 Q Yes. 19 A I don't know if I was the first one 20 to testify -- to give a deposition, but I 21 believe I was the first one. I don't know 22 who else the IG has taken depositions from. 537 1 Q My question was whether you know 2 anyone had talked to the IG before you 3 testified? 4 A Not that I'm aware of. 5 Q Did you have counsel at this 6 testimony? 7 A I did not. 8 Q Did the IG ever ask you, in the 9 course of its investigation, whether or not 10 The White House had any involvement in a 11 release of the information concerning Linda 12 Tripp? 13 A I don't believe so. I don't think 14 that was an issue at that time. 15 Q Is it an issue now? 16 A I don't believe that it was an 17 issue when this happened. To me, it's not an 18 issue now. There was no White House 19 involvement. 20 Q Well, we know that you can't vouch 21 for every waking moment of what Ken Bacon or 22 Secretary of Defense Cohen did or didn't do 538 1 at The White House; can you? 2 MS. COVEY: Objection. 3 MR. ZARING: Objection. 4 THE WITNESS: I can vouch for what 5 I did, and why I released the information and 6 the circumstances surrounding the release of 7 information, and I can tell you that the 8 Secretary of Defense and The White House 9 never came up in any of those conversations. 10 BY MR. KLAYMAN: 11 Q You can't testify today that Ken 12 Bacon was not ordered by The White House to 13 tell you to get the information on Tripp? 14 MS. COVEY: Objection. 15 MR. GAFFNEY: Objection to form. 16 BY MR. KLAYMAN: 17 Q You can respond. 18 A I can't tell you a lot of negative 19 things that never happened. I can tell you, 20 based on what I know about Ken Bacon, I don't 21 believe that that's the case. 22 Q What would be wrong about The White 539 1 House ordering Ken Bacon to release the 2 information on Tripp? 3 A The fact is, it didn't happen, so 4 therefore, I don't want to speculate about 5 this kind of answer. The fact is, it didn't 6 happen. 7 Q You don't know, do you, whether or 8 not The White House had conversations or 9 communications with Ken Bacon? 10 A No, I've never said I knew that. 11 Q You don't know whether or not The 12 White House ordered Ken Bacon or not to tell 13 you to get the information on Linda Tripp? 14 MS. COVEY: Objection, asked and 15 answered. 16 MR. ZARING: Objection, asked and 17 answered. 18 BY MR. KLAYMAN: 19 Q You can respond. 20 MR. GAFFNEY: Objection to form. 21 THE WITNESS: I think I've given my 22 best answer. I don't believe it happened. I 540 1 know from what I know, it didn't happen, and 2 I can't testify to a lot of things that I 3 don't know about, so I won't. 4 BY MR. KLAYMAN: 5 Q Just answer my question. 6 A I just did. 7 Q You did not answer my question. 8 MR. ZARING: I'll object to that. 9 MR. KLAYMAN: You can object all 10 you want. I don't care how many times any of 11 you object and try to obstruct my deposition. 12 I'm going to ask my question over and over 13 and over again until I get a response. 14 MR. HARDY: Mr. Klayman, I have to 15 instruct him not to answer that one, because 16 he's already answered it. 17 MR. KLAYMAN: All right. Then 18 certify it. 19 BY MR. KLAYMAN: 20 Q Do you know whether or not The 21 White House had conversations or written 22 communications with Secretary Defense Cohen 541 1 and ordered Cohen to instruct Bacon to 2 instruct you to release the information on 3 Linda Tripp? 4 MS. COVEY: Objection. 5 THE WITNESS: I'm not aware of any 6 such documents or conversations. I'm not 7 aware of any. 8 BY MR. KLAYMAN: 9 Q You're not aware of all 10 communications between The White House and 11 Secretary of defense Cohen? 12 A No. 13 Q You can't tell me that didn't 14 happen; can you? 15 A There are many things I can't tell 16 you didn't happen. 17 Q Just answer the question. 18 A The answer is, I am not aware of 19 any communication with The White House or any 20 directives of the type that you're saying. 21 Q That was not my question. My 22 question is, you cannot tell me today, that 542 1 The White House did not instruct Cohen to 2 instruct Bacon to instruct you to release 3 Tripp's information? 4 MS. COVEY: Objection, asked and 5 answered. 6 MR. ZARING: Objection, asked and 7 answered. 8 BY MR. KLAYMAN: 9 Q Calls for a yes or no. 10 A I think that the answer has to 11 stand. 12 Q You're refusing to answer the 13 question? 14 MR. HARDY: He's answered the 15 question. 16 THE WITNESS: I've answered the 17 question. 18 MR. HARDY: He doesn't have to 19 answer those questions any more. If you 20 don't like the answer, you just have to take 21 it for what it is. 22 MR. KLAYMAN: You're instructing 543 1 him not to answer? 2 MR. HARDY: He answered it. 3 MR. KLAYMAN: He did not answer it. 4 MR. HARDY: That's your opinion. 5 BY MR. KLAYMAN: 6 Q Will you answer the question or 7 not? 8 MR. HARDY: Sir, he answered the 9 question. He gave an answer. He's answered 10 the question at least four times. 11 BY MR. KLAYMAN: 12 Q You can't tell me that didn't 13 happen? 14 MR. HARDY: Sir, that calls for a 15 speculative response. He's not required to 16 speculate on something beyond his 17 accountability to know. 18 THE WITNESS: I can tell you -- 19 MR. HARDY: You don't have to 20 answer these questions. Sir, you don't have 21 to answer these questions. 22 MR. KLAYMAN: Certify it. 544 1 BY MR. KLAYMAN: 2 Q To sum it up, the statement here 3 that I read to you, he indicated that he had, 4 he, meaning you, a SecDef meeting in an hour 5 or so, wished the information as soon as 6 possible; that is completely false? 7 A Yes, I don't believe that ever was 8 part of the conversation. 9 Q Based on your experience in this 10 whole Tripp incident, can you think of any 11 reason why the Secretary of Defense, the 12 number one person at the Pentagon, why his 13 name would be used in this document? 14 MR. HARDY: Objection. You're 15 asking him for an opinion and a speculative 16 opinion. He's called here as a fact witness, 17 not as an expert witness, based on his 18 experience. He's not required to give that 19 kind of opinion or speculative opinion, so he 20 doesn't have to answer that question either. 21 MR. KLAYMAN: Certify it. 22 BY MR. KLAYMAN: 545 1 Q Now, you understand, from having 2 worked in the Department of Defense for many 3 years, that people are not to use the 4 Secretary of Defense's name in vain? 5 MR. ZARING: Object to the form. 6 MR. KLAYMAN: Is that funny? 7 THE WITNESS: Well, actually, it's 8 almost the opposite. People invoke the name 9 of the SecDef regularly and frequently to get 10 things done. 11 BY MR. KLAYMAN: 12 Q Is that what you did? 13 A No. 14 Q Look at the answer on that same 15 page, 63, Subpart B. "Describe the 16 justification given for the request. 17 Mr. Bernath stated the file would be used and 18 indicated he had a SecDef meeting in an hour 19 or so." It's now written twice. 20 A Well -- 21 MR. HARDY: Excuse me. What's the 22 question? 546 1 BY MR. KLAYMAN: 2 Q I was about ready to ask it before 3 you interrupted. 4 MR. HARDY: He started to answer. 5 Wait till Mr. Klayman asks the question 6 before you start answering nonquestions. 7 BY MR. KLAYMAN: 8 Q You told somebody, didn't you, that 9 you had a SecDef meeting in an hour or so? 10 MR. HARDY: He's already answered 11 that question. 12 MR. KLAYMAN: Maybe it refreshes 13 his recollection. 14 MR. HARDY: He said he didn't do 15 it. 16 MR. KLAYMAN: You're providing 17 testimony. Certify it. This is one of the 18 most bizarre depositions I have ever done 19 in 22 years of legal practice. 20 THE WITNESS: It's pretty close to 21 the first one. 22 (Witness conferred with counsel) 547 1 MR. HARDY: Go ahead. Another 2 question. 3 BY MR. KLAYMAN: 4 Q Look at the next page, 64. 5 A Leslie Blake, that's the name that 6 I couldn't remember. 7 (Witness conferred with counsel) 8 BY MR. KLAYMAN: 9 Q Page 64, do you see that first 10 question on the top of the page under C? 11 "Identify all individuals, including their 12 positions, who handled the Tripp file in 13 connection with this request or who were 14 informed of or responsible for approving or 15 denying the request." 16 Do you see the answer? 17 A I do. 18 Q You provided the information for 19 that answer? 20 A I did not. 21 Q Do you know who did? 22 A I do not. 548 1 Q Now, the answer is not complete; is 2 it? 3 A I do not know. 4 Q Based on your knowledge of what 5 happened with Tripp, this answer's not 6 complete? 7 A This answer may be complete, based 8 on who answered the question. I don't know 9 who answered the question. 10 Q It's not complete, because it 11 doesn't list Kenneth Bacon, correct? 12 A This person may not have talked to 13 Kenneth Bacon. I can't answer. 14 Q I just asked you whether the 15 question was complete. 16 A I don't know. 17 Q Mr. Bernath, you feel duty bound to 18 protect your colleagues at the Department of 19 Defense, correct? 20 MR. ZARING: Objection. 21 THE WITNESS: Let's go back to your 22 question on this. 549 1 BY MR. KLAYMAN: 2 Q I'm just asking the question on its 3 face. 4 A But you're asking a question about 5 a document that I haven't seen, from a person 6 who I don't know who it is, and you're asking 7 me if it's complete from an unknown person's 8 perspective. I can't answer that question. 9 Q Let's take all people's names out 10 of it. Let's say these are not people. 11 These are robots who can't do anything to 12 you. Just simple robots. Just look at the 13 question and look at the answer. The only 14 question I had is that the answer is not 15 complete, correct, because Bacon is not 16 listed? 17 MR. ZARING: Object to the 18 question. 19 THE WITNESS: This person may not 20 have talked to Bacon, probably did not talk 21 to Bacon, so it's complete from his or her 22 point of view. 550 1 BY MR. KLAYMAN: 2 Q I told you to take all of the 3 personality out of it. 4 A I can't do that. That's part of 5 the question and answer that you're asking. 6 Q This document that I'm reading to 7 you, 63 and 64, is part of a draft response 8 to a letter written to Congressman Mica; is 9 it not? 10 A I have no idea. 11 Q You are aware that Congressman Mica 12 was asking questions of the Department of 13 Defense about the Tripp release? 14 A I had heard that, but I've not been 15 involved in it, and I had nothing to do with 16 this document, and I'm telling you this is 17 the first time I've seen it. 18 Q You had an input in responding to 19 Congressman -- 20 A I had no input in that. 21 Q Do you know who responded to 22 Congressman Mica? 551 1 A I do not. 2 Q Do you know why you were cut out of 3 the loop in responding to Congressman Mica? 4 MR. ZARING: Object to that. Go 5 ahead. 6 THE WITNESS: No. 7 BY MR. KLAYMAN: 8 Q Did you ever ask the question, why 9 am I not involved in responding to 10 Congressman Mica, since I'm the guy that 11 released the information? 12 MR. ZARING: Objection. 13 THE WITNESS: No. 14 BY MR. KLAYMAN: 15 Q Did you ever think that maybe a 16 cover up was underway? 17 A No. 18 MR. ZARING: Objection. 19 BY MR. KLAYMAN: 20 Q Start with page 71 through 74. 21 Have you seen these documents before today? 22 A No. 552 1 Q Look at 71. Are your initials on 2 there? 3 A They are not. 4 Q This is a response to Congressman 5 Mica, correct, 72 and 73 and 74? 6 A To me, it doesn't look like that. 7 It looks like a response from 8 Ms. Davis-Harding to Mr. O'Toole. 9 Q Well, read the first line. "The 10 following information is pursuant to your 11 request of March 30, 1998, and in response to 12 the Congressional inquiry from the Honorable 13 John L. Mica, Subcommittee on Civil Service." 14 So it is a response, correct? 15 A Well, it looks like a draft 16 response, rather than a response to what 17 Mr. Mica. 18 Q Now look in the middle of the 19 paragraph that answers Question 1. It says 20 there as well, "He indicated he had a 21 Secretary of Defense (SecDef) meeting in an 22 hour so wished the information as soon as 553 1 possible." 2 A This is the same document -- it's 3 another draft of the same document, so I'd 4 expect it to be the same. 5 Q Well, check out page 74. This 6 document is signed. It's not a draft. 7 A Yes. 8 Q This document was submitted to 9 Stephen O'Toole, correct? 10 A That's what it looks like. 11 Q To Congressman Mica, correct? 12 A Well, I don't see that. I mean, 13 there was probably another something that 14 went there. But the fact is, that the two 15 documents that you're using to corroborate 16 each other are the same document. 17 Q Right. So given the fact that this 18 never happened, you claim, that you never 19 indicated that you had a Secretary of Defense 20 meeting in an hour or so and wished the 21 information as soon as possible, false 22 information was submitted to Stephen O'Toole? 554 1 A Information that I don't agree with 2 was submitted to Mr. O'Toole. 3 Q Did you ever tell anyone to correct 4 this misinformation? 5 A I never saw this information. 6 Q Do you intend to tell them to 7 correct it now? 8 MR. HARDY: Objection. You don't 9 have to answer that. You don't have to 10 answer that one. 11 MR. KLAYMAN: Certify it. 12 BY MR. KLAYMAN: 13 Q Do you feel that you have an 14 ethical responsibility to come forward to 15 Stephen O'Toole and now correct this? 16 MR. HARDY: Objection. You don't 17 have to answer that one either. 18 MR. KLAYMAN: On what basis? 19 MR. HARDY: It calls for 20 speculation. It has nothing to do with this 21 lawsuit, what his ethical feelings are about 22 dispute and facts in this letter. That's 555 1 totally irrelevant to anything. 2 MR. KLAYMAN: I'm allowed to get 3 his state of mind. 4 MR. HARDY: Today, now? 5 MR. KLAYMAN: Yes. 6 MR. HARDY: We can certify that one 7 too, if you like. 8 MR. KLAYMAN: This is relevant. 9 This person -- 10 MR. HARDY: Fine. Just certify it. 11 I'm telling him don't answer it. 12 MR. KLAYMAN: I'm asking you to 13 reconsider. 14 MR. HARDY: No, I'm not. 15 MR. KLAYMAN: This bears on the 16 intent aspect of the release of Linda Tripp's 17 information. Are you still instructing him 18 not to answer? 19 MR. HARDY: Yes. 20 MR. KLAYMAN: Certify it. It also 21 bears on the Secretary of Defense in the 22 Tripp matter, which bears on whether a high 556 1 level Clinton appointee, who has routine 2 communications with The White House, was 3 involved. 4 MS. COVEY: Object to that 5 characterization. 6 MR. KLAYMAN: I would certainly 7 hope the Secretary of Defense does have 8 routine communications with The White House. 9 BY MR. KLAYMAN: 10 Q Look to the next document, Bates 11 Number 75 through and including 80. You've 12 seen this document before. You identified it 13 earlier, correct? 14 A 75 through 80? 15 Q Yes. 16 MR. ZARING: Object. That 17 mischaracterizes prior testimony. 18 BY MR. KLAYMAN: 19 Q This is a document you said may 20 have come from your computer? 21 A No, this is not. This is not the 22 document. It's the one to Solomon. 557 1 Q So you've never seen this document 2 before? 3 A That's correct. 4 Q The next question you're supposed 5 to answer under the judge's order is Number 4 6 in the order, "What questions were asked by 7 the media about how information about the 8 release of information from Tripp's files 9 came to be released to Mayer." 10 Please give us all the information 11 you have on that. 12 A Once the Mayer article was written 13 and published, we got calls for the next, 14 maybe, two to three days. Most of the calls 15 were of the nature of, did you, in fact, 16 release that information -- actually that was 17 only a few of them. Most of the calls were, 18 what is the Department going to do about the 19 security clearance? How will it be 20 investigated? You know, will her security 21 clearance be readjudicated? What are the 22 possible consequences if it's not? Those 558 1 types of questions. 2 There was the call from -- I can't 3 remember his name -- from -- concerning 4 whether or not I would release the same 5 information on Mr. Cohen and Mr. Bacon. 6 Q Tucker Carlson? 7 A Tucker Carlson, yes. That was the 8 only call of that nature. 9 Q Some of these questions that were 10 asked by reporters concerned whether or not 11 The White House had played a role in 12 releasing the Tripp information, correct? 13 MS. COVEY: Objection, lack of 14 foundation. 15 THE WITNESS: I'm sorry. I can 16 answer that question? 17 MS. COVEY: Go ahead. 18 THE WITNESS: Yeah, there were 19 newspaper articles, but I don't recall ever 20 getting a question from a reporter asking me 21 that question. There were certainly 22 implications in some of the media that there 559 1 was this -- and columns by different members 2 of Congress, but I don't recall getting a 3 question. 4 BY MR. KLAYMAN: 5 Q Others got calls to that effect at 6 the Defense Department? 7 A I don't believe -- I don't remember 8 calls coming in about that. There were 9 certainly news articles about it. 10 Q You recall calls coming in asking 11 whether Secretary of Defense Cohen played any 12 role in releasing the information about 13 Tripp? 14 A Much later in the -- you know, 15 once -- maybe within a couple of weeks 16 afterwards, there might have been questions 17 at a press conference or something. I think 18 that did get asked. 19 Q Who called you about that? 20 A Nobody called me about that. 21 Q Who asked the questions at the 22 press conference? 560 1 A I don't know. Most of the time, I 2 listened to the press conference on a 3 speaker, so I'm not actually watching faces 4 or anything. 5 Q You're aware that Ken Bacon has 6 testified that when Secretary Cohen gave an 7 interview on Fox News Sunday and told the 8 world that you were the person that had 9 released the Tripp information, and it may be 10 illegal, that he told Secretary Cohen that 11 Cohen should correct that publicly? You're 12 aware of that; aren't you? 13 A I'm not aware of that. 14 MR. ZARING: Object to the form of 15 the question. 16 BY MR. KLAYMAN: 17 Q You are aware that Ken Bacon had 18 more than one meeting with Secretary Cohen, 19 where he claims to have told Secretary Cohen 20 that? 21 MR. ZARING: Objection. 22 THE WITNESS: I'm not aware of 561 1 this, no. 2 BY MR. KLAYMAN: 3 Q You're aware that Ken Bacon has 4 testified that when he told Cohen to correct 5 that misinformation given to the American 6 public, that Cohen sat there motionless at 7 his desk? 8 MR. ZARING: Objection. 9 THE WITNESS: No, I'm not aware of 10 this. 11 BY MR. KLAYMAN: 12 Q You're aware that Bacon has 13 testified that Cohen never responded to that 14 request? 15 A No, I'm not aware. 16 Q You're aware that Bacon has 17 testified that he offered up his resignation 18 to Cohen, and Cohen never responded in any 19 way? 20 MR. ZARING: Objection. 21 THE WITNESS: No. 22 BY MR. KLAYMAN: 562 1 Q Did Bacon ever discuss with you 2 contact he had with Secretary Cohen over the 3 Tripp matter? 4 A Very rarely. Pretty much after the 5 release and after the IG investigation began, 6 we decided, or it was decided, or I 7 decided -- I can't remember how it came 8 about -- that I would not be involved in the 9 Tripp matters any more. So, you know, I 10 stopped answering questions, and I pretty 11 much recused myself. 12 Q Bacon told you that you were being 13 taken off the Tripp matter at the direction 14 of Secretary Cohen? 15 A No. No. 16 Q I asked the question whether you'd 17 ever discussed contact between Bacon and 18 Cohen with Bacon? 19 MR. ZARING: I object. 20 THE WITNESS: I'm sorry. Can you 21 say it again? 22 BY MR. KLAYMAN: 563 1 Q I'd asked you whether you ever 2 discussed with Bacon, Bacon's discussions 3 over the Tripp release with Secretary Cohen? 4 A No, I've never discussed what he 5 told Mr. Cohen, if that's your question. 6 Q Have you ever heard in any other 7 source what the two of them discussed 8 concerning the Tripp release concerning you? 9 A No. 10 Q Have you ever asked? 11 A No. 12 Q You did, however, talk to Bob Tyrer 13 about the release of the Tripp information? 14 A Yes. 15 Q Bob Tyrer did invoke the name of 16 the Secretary of Defense, particularly, since 17 Tyrer is his chief of staff? 18 MR. ZARING: Objection. 19 THE WITNESS: Most of what I 20 remember from that meeting was he was very 21 upset with me. He, Tyrer, was very upset 22 with me for not telling the Secretary of 564 1 Defense about this. I don't recall him 2 invoking the Secretary's name. 3 BY MR. KLAYMAN: 4 Q How did you know he was upset for 5 not telling Secretary of Defense? 6 A Tyrer told me that Tyrer was upset 7 that we had not -- that I had not briefed the 8 Secretary on this, and that he was caught 9 unawares at a press conference or a question 10 from a member of the media. 11 Q When did you have this 12 conversation? 13 A It was within a few days of the 14 release. It might have been Tuesday; it 15 might have been Wednesday. 16 Q Did you have any later 17 conversations with Tyrer about the Tripp 18 release? 19 A No. 20 Q Did you ever have any later 21 conversations with anyone from the Secretary 22 of Defense's office about the Tripp release? 565 1 A No. 2 Q Did you ever communicate in writing 3 with the Secretary of Defense's office about 4 the Tripp release? 5 A No. 6 Q Do you know of anyone who had any 7 conversations with either the Secretary of 8 Defense or his office about the Tripp 9 release? 10 A I'm not personally aware of any of 11 the meetings. 12 Q The next question that the court's 13 requiring you to answer is whether you, 14 Clifford Bernath, ever spoke with the 15 Secretary of Defense Cohen on the telephone 16 or sent E-mails or memoranda to the 17 Secretary, or had any other kind of 18 communication with him at any time? 19 A Regarding this matter? 20 Q No, just generally speaking. If 21 you'd like to, refer to it. You can look at 22 the court's order. It's right there, 566 1 Number 5. 2 A On rare occasions, I have met with 3 Secretary Cohen, not about -- not with -- not 4 in any way about the Linda Tripp matter, on 5 other matters. I've never sent an E-mail to 6 him. I have answered the phone when he's 7 called and Mr. Bacon didn't pick up, but 8 nothing on the -- 9 Q What were the rare occasions that 10 you had contact with Secretary Cohen? 11 MR. ZARING: At this point, I'd 12 like to direct the -- 13 MR. KLAYMAN: Generally speaking, 14 I'm not asking for the substance. 15 THE WITNESS: I briefed him on the 16 Joint Communicators Orientation Conference, 17 you know, which is a program that we run. At 18 that time I was running it. I sat in on the 19 morning meetings that he has with his senior 20 staff on a few occasions when Ken wasn't in 21 town, those types of things. I did not have 22 regular access to the Secretary. 567 1 BY MR. KLAYMAN: 2 Q You frequently E-mailed Bob Tyrer, 3 correct? 4 A I have E-mailed him. I wouldn't 5 say frequently. But on some matters, I did, 6 yes. 7 Q Communicating with Bob Tyrer by 8 E-mail, or otherwise, is the same as 9 communicating with the Secretary of Defense; 10 is it not? 11 A No. 12 Q How so? 13 A Some of the matters that I dealt 14 with with him, personnel matters -- 15 primarily, personnel matters, I would have 16 expected him to be dealing with in his own 17 capacity and not passing onto the Secretary. 18 Q You dealt with Bob Tyrer, however, 19 on substantive matters, too? 20 A I did, but they were matters of 21 scheduling, you know, recommending certain 22 events that -- for the Secretary, and in most 568 1 cases, Mr. Tyrer was authorized to accept an 2 invitation or not accept an invitation. Now, 3 he may have briefed the Secretary, but most 4 of my dealings with him were not at the level 5 that the Secretary would have been involved 6 in. 7 Q Question Number 6, "How Secretary 8 Cohen learned that Bernath was the Pentagon 9 official who released information from 10 Tripp's personnel file." 11 A I don't know. 12 Q Question 7, "Whether Bernath 13 thought that he was being singled out by the 14 Pentagon and Ken Bacon for releasing 15 information from Tripp's personnel files." 16 A I did not. 17 Q Did you come to that conclusion 18 before or after you got your $10,000 cash 19 award? 20 A I never had that conclusion. I 21 never felt, nor do I feel now, that I was 22 being singled out. 569 1 Q Ken Bacon's told you that he 2 assumes equal responsibility? 3 A Ken and I, I think, agree that it 4 was a mutual decision, and we were mutually 5 involved in it, yes. I don't know that he 6 ever used those words, but certainly the 7 thought. 8 Q Have you ever offered your 9 resignation Mr. Bacon? 10 A Never have. 11 Q Did he ever ask for it? 12 A No. 13 Q Question 8, whether the statement 14 made by Secretary Cohen on Fox Television 15 News on April 26, 1998, about Bernath's role 16 in the release of information from Tripp's 17 personnel file was misleading. 18 A I never thought it was misleading. 19 As I understood it, he was asked who released 20 the information, and he said Bernath and to 21 me that was just a true statement. 22 Q It's your understanding of 570 1 misleading that it's not only not telling the 2 truth but it's not telling all the truth, 3 correct? 4 A That's certainly one definition. 5 Q Is that your definition? 6 A I could agree with that 7 characterization. 8 Q Secretary Cohen did not tell all 9 the truth on Fox News Sunday, correct? 10 MR. ZARING: Objection. 11 THE WITNESS: I don't see it that 12 way. Many of the things that we do are 13 collaborative, but when asked who actually 14 took an action, who actually did something, 15 it seems to me to be a completely truthful 16 answer. It never would have occurred to me 17 to split the hair and think oh, but wait a 18 second, I talked to this person, I talked to 19 this person, I talked to this person, so 20 maybe we should say everybody talked to him. 21 The fact is the question was who released the 22 information. Bernath did. I still think 571 1 that's an accurate answer. 2 BY MR. KLAYMAN: 3 Q So the way Secretary Cohen 4 responded to Tony Snow on Fox News Sunday was 5 appropriate in your view? 6 A That part of it was. I didn't 7 agree with the rest of his answer. I think 8 he should have been more generic about the 9 rest of the answer. 10 Q What was about the rest of the 11 answer that he should have been more generic 12 about? 13 A As I recall, he was specific about 14 wrong -- you know, wrongdoing that was done, 15 and at that time I think it would have been 16 more prudent to say, you know, that I'm 17 concerned about this. There should be an 18 investigation, there will be an 19 investigation, and we'll find out the facts. 20 Q Shortly after Cohen made those 21 remarks, you learned about it, correct? 22 A Yes. 572 1 Q And you talked to Bacon about those 2 remarks? 3 A I did. 4 Q And you told Bacon please get the 5 Secretary to correct this? It's not 6 appropriate to say that I engaged in 7 wrongdoing? 8 MR. ZARING: Objection. Lack of 9 foundation. 10 THE WITNESS: That's not completely 11 accurate. I told him that I disagreed with 12 that characterization, and I think that we 13 should put something out that backs it off 14 and goes more generic. 15 BY MR. KLAYMAN: 16 Q And what did Bacon tell you in 17 response? 18 A We put together some draft 19 responses, and at the end it was decided that 20 we shouldn't issue any statement at this 21 time, that it would just be worse for 22 everybody. 573 1 Q Who decided that? 2 A I don't know who made the decision. 3 I know that Ken and Bob Tyrer discussed it. 4 I don't know who else was in on the decision. 5 Q How did you find that out? 6 A Well, what I found out was that we 7 weren't going to publish the article -- the 8 statement. 9 Q How did you find that out? 10 A Ken told me. 11 Q Ken told you that we decided not to 12 publish it or it would just be worse for 13 everybody? 14 MR. ZARING: Objection. 15 THE WITNESS: That it strategically 16 was not a good decision to do it -- to 17 publish anything. 18 BY MR. KLAYMAN: 19 Q And that it will be worse for 20 everybody? 21 A Well, that was just my word here. 22 I don't know what was said at the meeting. 574 1 That was my characterization here. 2 Q And why did he say it would be 3 worse strategically? 4 A Well, you always make a decision 5 with the media whether making a statement 6 will keep the story alive or whether it's -- 7 you know, whether it's better to engage or 8 not to engage, and they made the decision not 9 to engage at that time. 10 Q But you worked in the press 11 department at the Pentagon, correct? 12 A In the public affairs department. 13 Q And you were aware that the ethical 14 duties of the press department was and 15 remains to tell the American people the whole 16 truth? 17 MR. ZARING: Objection, lack of 18 foundation. 19 BY MR. KLAYMAN: 20 Q Correct? 21 A There was nothing that was wrong in 22 the Secretary's statement. The question was 575 1 did we want to elaborate on that statement or 2 not elaborate on it, and the decision was not 3 to elaborate on it. 4 Q And the reason not to elaborate on 5 it was because you, the Department of 6 Defense, didn't want to implicate Clinton 7 political appointees in the release of Linda 8 Tripp's file at that point in time? 9 A Totally wrong. Totally wrong. 10 Totally inaccurate. That never came up. 11 Q Then what was the reason? 12 A I just told you what the reason 13 was. We made a strategic decision not to do 14 it based on our understanding of the 15 situation. 16 Q Well, what was the underlying basis 17 for the strategic decision? 18 A It's a decision about whether or 19 not you will make -- that you will add 20 anything or not add anything, and we decided 21 it wouldn't add anything. 22 Q So the policy of the press 576 1 department in the Pentagon it's always better 2 to say less than more? 3 A No, that's not accurate. 4 MR. ZARING: Objection. 5 BY MR. KLAYMAN: 6 Q It's always better to withhold 7 facts from the American people rather than 8 giving them all the facts? 9 A There's no generalization you can 10 make from one action. We decided in this 11 case a course of action is what we do all the 12 time. 13 Q The strategic decision was based on 14 not doing anything that would harm the 15 interests of the Clinton White House? 16 A That is wrong. It had nothing to 17 do with the Clinton White House. 18 Q At the time the decision was made 19 there was an uproar that The White House was 20 behind the release of Linda Tripp's Pentagon 21 file information, correct? 22 MR. GAFFNEY: Objection. 577 1 MS. COVEY: Objection. 2 BY MR. KLAYMAN: 3 Q You remember that, don't you? 4 MR. GAFFNEY: Objection to form. 5 THE WITNESS: At this time I don't 6 believe there was. I can't remember the 7 sequence but this decision had nothing to do 8 with The White House. The White House was 9 not consulted by us. It had nothing to do 10 with it. 11 BY MR. KLAYMAN: 12 Q And you and Bacon knew that if you 13 fingered The White House that the two of you 14 could be retaliated against? 15 MS. COVEY: Objection. 16 MR. ZARING: Objection. 17 THE WITNESS: Nothing of the kind. 18 Never came up. Not a part of the decision. 19 BY MR. KLAYMAN: 20 Q What I'm trying to get at, 21 Mr. Bernath, is why, given the fact that you 22 and Mr. Bacon and others involved at the 578 1 Pentagon are public servants, correct? 2 A Yes, we are. 3 Q You work for the American people, 4 correct? 5 A We do. 6 Q You have a higher ethical standard 7 as a public servant than you would even have 8 in the private sector? That's your 9 understanding, correct? 10 A I agree. 11 Q And don't the American people 12 deserve all the information? 13 A The American people got accurate, 14 complete information. 15 Q The American people got the shaft, 16 didn't they? 17 MR. ZARING: Objection. 18 MR. HARDY: Objection. You don't 19 have to answer that question. You can 20 certify that one, too, Mr. Klayman. 21 MR. KLAYMAN: I will. 22 BY MR. KLAYMAN: 579 1 Q The American people were deceived? 2 A No, they were not. 3 Q The American people were lied to, 4 weren't they? 5 MR. ZARING: Objection. 6 THE WITNESS: They were not lied 7 to. 8 BY MR. KLAYMAN: 9 Q And Linda Tripp is part of the 10 American people, isn't she? You owe her an 11 obligation, too, don't you? 12 A Linda Tripp was treated -- well, I 13 don't know how to answer that one. 14 Q Have you ever apologized to Linda 15 Tripp? 16 A No, I've never talked to her. 17 Q Have you ever tried to get a 18 communication to her to apologize to her? 19 A No. 20 Q Do you know of anyone who has? 21 MR. ZARING: Objection. Where are 22 you getting this line of questioning from, 580 1 Counsel? 2 BY MR. KLAYMAN: 3 Q You can respond. 4 MR. ZARING: I'll give you a little 5 more leeway here but -- 6 BY MR. KLAYMAN: 7 Q Do you know of anyone who has tried 8 to apologize to her? 9 A Actually, the Secretary of Defense 10 and Mr. Bacon at separate press conferences 11 actually expressed regret at the release of 12 the information, so, yes, it's been done. 13 Q They were regretting their own 14 predicament, weren't they? 15 MR. ZARING: Objection. 16 THE WITNESS: You asked the 17 question. I just answered your question. 18 BY MR. KLAYMAN: 19 Q I show you what has been marked as 20 Exhibit 6 to Bacon's deposition. Let's 21 remark it as the next exhibit in this 22 deposition just to keep the record complete. 581 1 A Can I fill this up? 2 MR. FITTON: I'll get it for you. 3 MR. ZARING: Do you want to take a 4 break? 5 THE WITNESS: I'm fine. 6 (Bernath Deposition Exhibit 7 No. 6 was marked for 8 identification.) 9 BY MR. KLAYMAN: 10 Q Mr. Bernath, did you ever tell the 11 Inspector General that you got a $10,000 cash 12 award recommended by Ken Bacon in November of 13 '98? 14 A I haven't talked to the Inspector 15 General since that deposition. 16 Q So the answer's no? 17 A The answer is no, yes. 18 Q Did you ever tell Independent 19 Counsel Ken Starr's office that you got a 20 $10,000 cash award recommended by Ken Bacon? 21 MR. ZARING: Objection. This is 22 irrelevant to the court's order. 582 1 THE WITNESS: They never asked. 2 Had they asked, I'd have told them, just like 3 I told you. 4 BY MR. KLAYMAN: 5 Q Let's turn on Exhibit 6 to page 9. 6 MR. HARDY: Is this Bernath 6, too? 7 MS. COVEY: Yes. 8 MR. KLAYMAN: Mm-hmm. 9 BY MR. KLAYMAN: 10 Q Reading this section that deals 11 with you in the Interview, Tony Snow asked, 12 "Last week on national television Linda 13 Tripp's attorney said she was afraid she's 14 going to lose her job. Is she? 15 "Cohen: She's performing a job by 16 working at home for the time being, but 17 there's been no indication on our part that 18 she should have this fear. She's working at 19 home in order to work out her particular 20 arrangement, which is a sensitive one now. 21 Namely, she's working with the Independent 22 Counsel. 583 1 "And so it was worked our between 2 management and her that she could work at 3 home, at least for a temporary period of 4 time. But there's no -- 5 "Snow: Now -- 6 "There's no plan to fire her. 7 "Snow: "Her personnel file was 8 made public. That's illegal, isn't it? 9 "We think it's certainly 10 inappropriate, if not illegal." 11 That's the statement you took issue 12 with, correct? 13 A Yes. 14 Q "And we called for an investigation 15 as to how that occurred, and we know the 16 individual that did release it." And Snow 17 answers, "Was it Clifford Bernath? Was he 18 the one who did it?" 19 Now, how did Snow know it was 20 Clifford Bernath? 21 A I have no idea. I don't know. 22 Q Before Cohen ever gave your name? 584 1 A I don't know. I've never talked to 2 Tony Snow. 3 Q In fact, Cohen had given the answer 4 to Snow before the interview, correct? 5 A No. 6 MR. ZARING: Objection. 7 THE WITNESS: I have no knowledge. 8 I don't know. 9 BY MR. KLAYMAN: 10 Q Mr. Bernath, we would have never 11 known about the involvement of Ken Bacon if 12 Judicial Watch hadn't taken your deposition, 13 correct? 14 MR. ZARING: Objection. 15 THE WITNESS: I don't know. 16 BY MR. KLAYMAN: 17 Q You don't know of any plans in the 18 Pentagon, up to the date that I took your 19 deposition on April 30, 1998, to release Ken 20 Bacon's name to the media? 21 A No. 22 Q Did Mr. Bacon ever discuss with you 585 1 any conversations that he had with Bob Tyrer 2 about correcting the record as to who was 3 involved in the release of the information 4 concerning Linda Tripp? 5 A No. 6 Q Next question that the court asks 7 you to respond to is nine, whether Bernath 8 had taken any steps to correct the public 9 record as to who was involved in the release 10 of information from Tripp's file. 11 A No, I always felt that the public 12 record was right, that I did it. 13 Q Ten, whether Bernath sought legal 14 counsel after he heard that Secretary Cohen 15 singled him out as the one who leaked 16 information from Tripp's files. 17 A No, I didn't. 18 Q Did you talk to legal counsel? 19 A No. 20 Q Did legal counsel later find you? 21 Let's put it this way. How did you get 22 hooked up with legal counsel? 586 1 A I did that after Mr. Starr got 2 involved. Then I sought out legal counsel. 3 Q You didn't have Mr. Hardy at the 4 time of your last deposition with me? 5 A That's correct. 6 Q And what was it about Starr's 7 involvement that caused you to seek out 8 Mr. Hardy? 9 A It had hit a level of discomfort 10 that I decided that I needed counsel at that 11 time. 12 Q Who's paying for Mr. Hardy? 13 A I am. 14 Q Have you paid him already? 15 A No. 16 Q Do you have any agreement with 17 Mr. Hardy as to when you're going to pay him? 18 A I'm sure we have an agreement that 19 he will get paid. 20 Q He will get paid. 21 A No, we'll have that understanding 22 or that conversation. 587 1 Q Who recommended Mr. Hardy to you? 2 A I got his name through my general 3 counsel in my office. 4 Q And who's that? 5 A Ms. Marianne Felice. 6 Q And what did Ms. Felice tell you 7 about Mr. Hardy? 8 A I think they had a mutual 9 acquaintance. I don't think she had ever met 10 him. 11 Q Did she tell you anything to the 12 effect that he's a lawyer friendly to the 13 Administration? 14 A No. No. 15 Q Do you know whether he's 16 represented anybody from The White House? 17 A No. 18 Q In all the 38 Clinton scandals? 19 A No. 20 MR. GAFFNEY: Objection to form. 21 MR. ZARING: Objection. 22 MR. KLAYMAN: Did I guess too low? 588 1 BY MR. KLAYMAN: 2 Q Question 11, why Bacon and Doug 3 Wilson were not identified as being involved 4 in the release of information from Tripp's 5 file. 6 A Well, Doug Wilson was not involved. 7 He wasn't there that day. He wasn't part of 8 that sequence of events, so that's why he 9 wasn't. And, again, I think that we just 10 never made that distinction. All of us kind 11 of understand when we put together a question 12 and an answer that we're going to release to 13 the media that it's kind of collaborative, 14 but if Dick Bridges gives the answer then we 15 say Dick Bridges gave it. If Bernath gives 16 it, then Bernath gave it. If Bacon gives it, 17 then Bacon gave it. It just never occurred 18 to us it was a multi-part answer. 19 Q Is there a tradition at the 20 Department of Defense that the lowest guy on 21 the totem pole takes the blame? 22 MR. ZARING: Objection. 589 1 THE WITNESS: No, there's no 2 tradition, and I wasn't the lowest man on the 3 totem pole. 4 BY MR. KLAYMAN: 5 Q Who was? 6 A He would be a lot lower than I was. 7 Q Who was involved in releasing 8 Tripp's information? 9 A Well, no, as the public affairs 10 totem pole went I was not at the bottom. 11 Q But in terms of who was involved in 12 releasing Tripp's file you were the lowest 13 guy on the totem pole, weren't you? 14 A There's no tradition of the type 15 that you just said. 16 Q No tradition that you take the 17 cyanide capsule? 18 A No. 19 Q Question 12, whether Bernath 20 approved of the statement by Secretary Cohen 21 about Bernath's role even if Bernath knew it 22 contained false and/or misleading 590 1 information. 2 A Well, (a) I didn't know of the 3 statement until after the fact, so I didn't 4 have any prior approval, and, as I said, I 5 never -- I still don't think it contained 6 false or misleading information. 7 Q The same rule of thumb that you 8 approve of in Cohen answering the questions 9 of Tony Snow with the exception of Cohen's 10 statement that maybe something illegal 11 occurred, that's the same rule of thumb that 12 you've been using throughout these 13 proceedings to answer my questions? 14 MR. ZARING: Objection. 15 THE WITNESS: I'm sorry. I don't 16 understand what you're saying. 17 MR. ZARING: Lack of foundation. 18 BY MR. KLAYMAN: 19 Q In other words, the same way that 20 Cohen answered Snow's questions, giving only 21 narrow information, not offering anything up, 22 that's the same approach that you've been 591 1 using to answer Larry Klayman's questions in 2 your two deposition questions? 3 MR. ZARING: Objection, ambiguous. 4 THE WITNESS: I just have to 5 disagree. I have been trying to answer your 6 questions as fully as I can. 7 BY MR. KLAYMAN: 8 Q So you have a different way of 9 answering questions than Secretary Cohen? 10 MR. ZARING: Objection. 11 THE WITNESS: That's not what I'm 12 saying. Secretary Cohen answered the 13 question fully, also. 14 BY MR. KLAYMAN: 15 Q Unless I ask you a direct question 16 and get a direct hit, you're not going to 17 give me any information, are you? 18 MR. HARDY: Objection. You're just 19 arguing with him now, Mr. Klayman. 20 BY MR. KLAYMAN: 21 Q Yes or no? 22 MR. HARDY: You don't have to 592 1 answer it. Don't answer it. 2 MR. KLAYMAN: Certify it. 3 BY MR. KLAYMAN: 4 Q Question 13, whether Bernath, you, 5 had ever been caught making false or 6 misleading statements to the press concerning 7 matters at the Pentagon. 8 A No. 9 Q Has anyone ever said to you, during 10 the time that you worked in the press office, 11 you didn't give me complete information? 12 A No. 13 Q That's never happened? 14 A Not that I remember. 15 Q Has anyone inside the Pentagon ever 16 said that you have to give more complete 17 information? 18 A No. 19 Q Question 15, whether Bernath knew 20 there was a controversy about the release of 21 information from Tripp's files at the time he 22 deleted information from his computer. 593 1 A As I testified previously, when I 2 was leaving my job at the Pentagon and taking 3 a new job, I deleted files that I would not 4 need in the new job, but I did not delete 5 files pertaining to Linda Tripp or Monica 6 Lewinski, and in fact I printed out 7 everything to ensure that any accidental 8 deletion would not occur. 9 So, you know, I object to the 10 characterization that I deleted any 11 information about Tripp files from my 12 computer. The answer to the question is I 13 was certainly aware about the controversy at 14 the time that I deleted non-Tripp, non- 15 Lewinski files from my computer. 16 Q Controversy, the Tripp controversy? 17 A Right. 18 Q The release of Tripp's information? 19 A Correct. 20 Q Now, you testified this morning 21 that in fact the Inspector General seized 22 four different computer devices. In your 594 1 first deposition session you talked about the 2 Dell dockable unit. There was also a 3 Macintosh. What did you use the Macintosh 4 for? 5 A Well, I actually haven't used it 6 for a long time but since it was sitting in 7 my office at the time, they seized it. 8 Q How long had you not used it up to 9 the point of the Tripp release? 10 A Well, I can't remember -- the Mac 11 predated the Dell dockable, so I can't 12 remember exactly when I got the Dell, but I 13 kept the Mac as a backup. But the Mac I 14 believe was out of commission -- out of my 15 daily use before the Tripp incident. 16 Q How far before the Tripp incident? 17 A I can't remember. 18 Q Roughly? 19 A It would just be a guess. Probably 20 six months but I just can't remember. 21 Q But you did use the Mac from time 22 to time, correct? 595 1 A Yes, but it was only to really do 2 nonword-processing type things. I didn't use 3 it for e-mail or word processing. I used it 4 mainly for graphics for briefings. 5 Q Had you searched the Mac for 6 documents responsive to Judicial Watch's 7 first subpoena prior to your first deposition 8 session? 9 A Yes. 10 Q Did you delete any files from the 11 Mac? 12 A No. 13 Q Then you say there was a desktop 14 computer that the IG seized. 15 A And I just have no recollection of 16 it. I think it was just -- I don't know 17 where it came from, but I just remember that 18 -- I wasn't in the office when they seized 19 them, even, but -- 20 Q Did they seize the wrong computer? 21 A No -- well, it probably didn't have 22 much on it. I don't know. But they've got 596 1 it. 2 Q But you had used it? 3 A I don't believe I had. I don't 4 believe I had. I can't recall using it. 5 Q Then why did the IG take it away? 6 A You'd have to ask them. I don't 7 know. 8 Q Did they take anything else? 9 A Nope, just those four things. 10 MR. KLAYMAN: Let's change the 11 tape. 12 THE VIDEOGRAPHER: We're going off 13 video record at 3:06. 14 (Recess) 15 THE VIDEOGRAPHER: We're back on 16 video record at 3:20. 17 BY MR. KLAYMAN: 18 Q The last question the court order 19 specifically lists is number 19, who 20 initiated or requested an inquiry into the 21 release of information from Tripp's files? 22 A It could be answered from a variety 597 1 of different perspectives. I think I did 2 when I first called the group of lawyers and 3 Freedom of Information people together and 4 told them what I did. But the formal IG 5 investigation, I think, came when 6 Representative Solomon wrote a letter and the 7 Department decided to do the official 8 investigation, and I don't know who was in 9 that decision-making chain there. 10 Q In fact, Linda Tripp had also 11 requested an inquiry, hadn't she? 12 A She might have. She might have. 13 She didn't through me. 14 Q Do you know from any other source 15 whether she did? 16 A I mean, now that you say that, that 17 sounds familiar, but by the time I heard that 18 we were already involved in an investigation, 19 so I don't think she -- I don't think hers 20 was the one that launched the investigation. 21 Q Well, let me see if I can sum 22 things up here. There's one other question 598 1 that the court has allowed us to answer here 2 expressly. Turn to page 40 of the court's 3 order, July 10, 1998. Question 18 states do 4 any of the redacted sections of this document 5 produced in response to your subpoena relate 6 to Linda Tripp? 7 A All I could tell you, Mr. Klayman, 8 is -- 9 Q Wait a minute. 10 A I'm sorry, I thought your question 11 was over. 12 Q And I'll show you that document as 13 Exhibit 4 to your first deposition. 14 A I'll look through this and make 15 sure I answer it specifically. 16 Q I take it you discussed this 17 response without looking at the document? 18 A Well, when I read the question 19 originally, the first part of my answer was 20 that, just so you understood, I gave 21 everything to the general counsel unredacted, 22 and I was not a party to the redacting, so 599 1 that's how I interpreted this question. If 2 you want a fly-by here to see if I remember 3 if any of these things had to do with 4 Tripp -- 5 Q Give me a fly by night. 6 MR. GAFFNEY: Objection to form. 7 THE WITNESS: Fly-by was different 8 than a fly-by-night. 9 MR. ZARING: Can we see that? Do 10 you have copies? 11 MR. KLAYMAN: It's Exhibit 4. 12 MR. FITTON: Almost enough copies. 13 THE WITNESS: There's not much to 14 go on. 15 MR. ZARING: Can we see the -- 16 THE WITNESS: And what you're 17 looking for is a determination whether these 18 may have dealt with Linda Tripp in any way? 19 BY MR. KLAYMAN: 20 Q Correct. 21 A Not what it said? Well, I guess on 22 page 1, the 9/25 conversation with DOC 600 1 Cooke -- 2 Q Page 1? 3 A Your Bates stamp 1. 4 Q Not the privilege list in the front 5 but Bates 1. Go on. Page 1, this is the 6 listing from your Palm recorder? 7 A Pilot. 8 Q Pilot. 9 A Correct. Everything that we 10 discussed in that conversation was dealing 11 with Tripp. 12 Q The question is whether any of the 13 redacted materials deal with Linda Tripp. 14 A I'm saying that it's likely the 15 redacted part of that conversation may have, 16 same with the O'Toole. 17 Q Same with page 2? 18 A No, the O'Toole, 10:00 o'clock. 19 The ones that I don't point out, can we 20 stipulate that I just don't know those so I 21 can't answer? 22 Q All right. 601 1 A On page 3, the 3:30 to 3:45 with 2 Don Perkal was probably just what it says, 3 release of information. 4 Q Dealt with Tripp, the redacted 5 portion? 6 A Yes. Page 4, 4:10, Perkal probably 7 did. Page 5, 0900, Passarella did; 11:30 to 8 12:00, Stew Aly did. Page 6, 11:40 to 11:50, 9 Ken probably did. Page 7, 2:45 to 2:55, Ken, 10 yes. 5:00 to 6:20 with Helen Sullivan, yes. 11 7:20 with Ken, yes. Page 8, 1100, Brad 12 Wiegmann, yes. 13 Some of these are going into 14 duplication. Page 10 duplicates earlier, so 15 the same one about DOC and the same one about 16 Steve O'Toole. Page 13, Don Perkal. 17 Q Don Perkal where, 4:10 to 4:30? 18 A 3:30 to 3:45 and 4:10 to 4:30. 19 Page 14, Stew Aly, 11:30 to 12:00, 20 and 2:20 to 2:30. Page 16, 2:45 to 2:55, 21 Ken; 5:00 to 6:20, Helen Sullivan; 7:20 to 22 7:30, Ken. Still on 17 or on 17, 11:00 to 602 1 11:10, Wiegmann. Page 19, 2:30 to 3:00, 2 PapÄÄÄÄs; and 6:20 to 6:45, Ken. 3 Page 20, 9:00 to 9:30, Perkal. 4 Page 21, 11:45 to 12:00, Perkal. Page 22, 5 9:50 to 9:55, Perkal; 2:50 and 3:15, Perkal. 6 Page 26, 1:35 to 1:45, Perkal. 7 Page 32, dealt with it; 34, did; 35 8 is part of that; 39, yes; and 42, yes. I 9 believe that's it. 10 MR. ZARING: I'd like to note at 11 this time for the record that the court has 12 unredacted versions of these documents that 13 Mr. Bernath has just gone through and the 14 court has also upheld claims of privilege on 15 the redacted portions of these documents. 16 MR. KLAYMAN: Mr. Fitton challenges 17 that statement. Are you saying that you 18 submitted all these document to Judge 19 Lambreth? 20 MR. ZARING: We did. 21 MR. KLAYMAN: Unredacted? 22 MR. ZARING: Unredacted. 603 1 MR. KLAYMAN: Well, the court order 2 allows us to probe as to whether it may not 3 be subject to attorney-client privilege. For 4 instance, were other people present during 5 these conversations? 6 MR. ZARING: I've made my statement 7 for the record and invite you to question 8 Mr. Bernath accordingly. 9 BY MR. KLAYMAN: 10 Q During any of the meetings that you 11 have just referenced, can you go back and 12 tell me whether anyone was present other than 13 legal counsel? Let's start over again. 14 A So is it safe to look at the ones 15 that are annotated A-C and then determine 16 whether or not there was anybody else in the 17 room? 18 Q That's correct. 19 A So what I'll do now is the same 20 thing. I'll go through and as I identify 21 ones where somebody was in the room, I'll 22 tell you? 604 1 Q Correct, tell us who was in the 2 room. 3 A On page 5, the 11:30 to 12:00, 4 those are all the people who were in the 5 room. 6 Q Who in the room was a lawyer? 7 A Aly and Perkal. 8 Q During this conversation was there 9 any request for legal advice? 10 A I was asking the -- 11 MR. ZARING: I'd caution you at 12 this point not to reveal the substance of any 13 communications if there were requests for 14 legal advice. 15 MR. KLAYMAN: That's why I was 16 asking. 17 THE WITNESS: I would say yes. 18 BY MR. KLAYMAN: 19 Q What was the subject matter of the 20 legal advice, general subject matter? 21 MR. ZARING: There I object. 22 MR. KLAYMAN: That's within the 605 1 scope of the normal privilege. 2 MR. ZARING: I'm noting for the 3 record that the court's already upheld our 4 privilege claim in an order that postdated 5 the July 11 order which is the subject matter 6 of these questions. 7 MR. GAFFNEY: Can we take a break 8 for a second and have the witness leave the 9 room? There seems to be some confusion. 10 MR. KLAYMAN: That's fine. I see a 11 lot of people motioning to everybody. I'm 12 not sure exactly what it is. You've got five 13 lawyers there who are all talking to each 14 other. Why don't you guys figure out what 15 your position is here and enlighten us? 16 THE VIDEOGRAPHER: We're going off 17 video record at 3:43. 18 (Recess) 19 THE VIDEOGRAPHER: We're back on 20 video record at 3:50. 21 MR. KLAYMAN: I'll show you what 22 I'll ask the court reporter to mark as the 606 1 next exhibit. This is a cover letter of 2 October 14, 1998, from Benjamin Lawsky, CC 3 William J. Murphy, and attaches certain 4 documents. While we do that, I just need to 5 take a 30-second break. 6 (Bernath Deposition Exhibit 7 No. 7 was marked for 8 identification.) 9 BY MR. KLAYMAN: 10 Q Do you see this document? 11 A I do. 12 Q These are documents which were 13 produced by the Department of Defense in this 14 case, and I'd like you to tell me if any of 15 the documents in this package, and they span 16 Bates numbers 110 through and including 204, 17 come from any of the computer devices that 18 you listed this morning, the Macintosh, the 19 Dell, the desk PC, or your what do you call 20 it, Palm -- 21 A Palm Pilot. 22 Q Palm Pilot. 607 1 A The first one that I come to that 2 it may come from, but I'm not sure, is number 3 170, which was an e-mail to me, but there's 4 nothing on it. I don't know where else 5 documents came from, but it could conceivably 6 have come from somebody else, but I can't say 7 that that did not come from my computer. 8 Q Is that from Don Perkal? 9 A Yes. 10 Q Do you know which computer? 11 A No, there's no way of telling. I 12 mean, I would guess it would be the Dell, but 13 there's no real way of telling. 201, 202 are 14 from my Palm Pilot, and 203 is information 15 that I did on my computer. I don't believe 16 this with the writing actually -- this 17 particular document with the writing on it 18 came from it, but the information was 19 prepared on my computer. 20 Q Look at 204. 21 A And 204 is -- this is a document 22 that I prepared. 608 1 Q Well, this refreshes your 2 recollection, does it not, that Linda Tripp 3 filed a complaint against you and that 4 triggered the IG's investigation? 5 A 204? Let me read it. 6 MR. ZARING: Objection. 7 THE WITNESS: No. No, I'm not 8 exactly -- let me just check something here. 9 This letter doesn't say that, but the timing 10 -- I can't tell you what caused the IG. 11 MR. KLAYMAN: I'll show you what 12 I'll ask the court reporter to mark as the 13 next exhibit. It's a cover letter again of 14 Benjamin Lawsky, dated May 6, 1998, two 15 pages, and it attaches documents Bates 16 numbers 1 through and including 105. 17 (Bernath Deposition Exhibit 18 No. 8 was marked for 19 identification.) 20 BY MR. KLAYMAN: 21 Q Looking through this exhibit, tell 22 me whether any of the documents contained 609 1 therein came from any of your computer 2 devices. 3 A Okay, 01 through 029 came from the 4 Palm Pilot; 30 and 31 were not prepared by 5 me. They may have been something that I kept 6 on my computer. I don't remember. It could 7 have come from someplace else, too. 8 Q Was 32 part of the same document? 9 A Yeah, I'm looking at that. 32, 33 10 -- yeah, 30 through 33 is one document. 11 Again, I didn't prepare that document, but it 12 may be something that was on my drive. 34 13 and 35 could well be from my drive. I don't 14 believe 38 was. 39 was -- 15 Q You don't believe 38 and 39? 16 A No, 38 I don't believe, but 39 was. 17 42 was. 54 and 55, I did not produce this, 18 but it could have been on the drive. 19 Q Do you know who did produce it? 20 A That's the transcript of a press 21 briefing. 60 is from mine. When I say it's 22 from mine, it means I produced it. I don't 610 1 know where the -- I mean, there were a lot of 2 copies of this thing rolling around. 76, 3 again, was a document that I produced. I 4 believe that's all. 5 Q Turn your attention to the document 6 which is 105. Do you see that? 7 A This last one? This ink one? 8 Q These are the notes, are they not, 9 of Les Blake, Chief, Office of FOIA and 10 Privacy? 11 A I have no idea. 12 Q Does the handwriting ring a bell? 13 A No. 14 Q Do you see where it says, at the 15 top, 3/3/98? 16 A Yes. 17 Q 647-0713, is that your extension? 18 Was that your extension? 19 A 697-0713. 20 Q Yes, 697-0713? 21 A Mm-hmm. 22 Q So your extension's listed up 611 1 there, right? 2 A Yes. 3 Q Can you read these notes? 4 A "398 Linda Rose Tripp" -- I can't 5 read a lot of it. 6 Q Well, look at the center there. Do 7 you see where it says, "Need one hour, Sec 8 Defense"? 9 A Mm-hmm, I do. 10 Q And "meet"? "Need one hour Sec Def 11 meet"? 12 A I see it. 13 Q These notes are reflecting a 14 conversation that this individual had with 15 you? 16 MR. ZARING: Objection. There's no 17 foundation. 18 BY MR. KLAYMAN: 19 Q Correct, Mr. Bernath? 20 A I mean, it could well be. There's 21 nothing on here. I mean, it could well be. 22 Sure. 612 1 Q The fax number below, see it says 2 703-695-4299? 3 A Yeah, I think that was our front 4 office fax. 5 Q In the press office? 6 A No, in front office, in the -- my 7 office. 8 Q Right. Now, these notes refresh 9 your recollection that in fact you did tell 10 someone that you needed the information about 11 Linda Tripp for a meeting with the Secretary 12 of Defense in one hour? 13 MR. HARDY: Objection. He never 14 testified ever that his recollection was 15 exhausted about that issue. He denied it. 16 You're misstating what he testified to on 17 several occasions. 18 MR. KLAYMAN: This is an 19 objectionable question. Certify it. I don't 20 wish to get exorcised right now. I think 21 that the record of this complete deposition, 22 which is perhaps in my opinion the most 613 1 improper one I've ever seen, is clear. 2 (Witness conferred with counsel) 3 THE WITNESS: You know, I see the 4 words that are written there. I don't know 5 what in the conversation was said to indicate 6 that or whether there were things that were 7 said that led him to believe that this was 8 what the intent of the conversation was. 9 There's nothing in my recollection that says, 10 (a) that I ever said I was going to meet with 11 the Sec-Def and (b) that I ever did meet with 12 the Sec-Def. The second certainly didn't 13 happen. 14 In the first, I'm not sure what was 15 said in the course of the conversation that 16 would lead to, you know, these cryptic notes. 17 BY MR. KLAYMAN: 18 Q Is it possible that you told this 19 person that I need the information within one 20 hour for a meeting with Secretary Cohen to 21 speed them up? 22 A No. It's possible -- what is 614 1 possible is that I said I need it in an hour 2 for a meeting with Secretary Bacon. That's 3 possible and that's much more likely. 4 Q But you can't rule out that you 5 said Secretary of Defense? 6 A I don't believe I said Secretary of 7 Defense. 8 Q But you can't rule it out? 9 A I think my answer has to stand. I 10 don't believe I said it. I mean, you can ask 11 it in the negative, but in the negative it 12 has a different meaning. 13 Q See, the problem here is that I'm 14 the lawyer and you're the witness, so I get 15 to ask the questions. So my question is you 16 can't rule it out, correct? 17 A And I think my answer says I don't 18 believe that I did answers that question. 19 Q My question is you can't rule it 20 out, yes or no? 21 MR. HARDY: He's said three times 22 that he thought he had answered your 615 1 question. Do you have anything more to add 2 to your answer so far? 3 THE WITNESS: No, I don't have 4 anything else to add to that answer. 5 MR. HARDY: Then I ask you to move 6 on to the next area. 7 MR. KLAYMAN: I'm not. I want an 8 answer. 9 MR. HARDY: He gave you an answer. 10 He's answered it four times. 11 BY MR. KLAYMAN: 12 Q You can't rule it out, yes or no? 13 MR. HARDY: Did you have any more 14 to add to your prior five answers on the 15 question? 16 THE WITNESS: Give me 30 seconds 17 and let me see if I do. 18 I am almost positive that I did not 19 say Secretary of Defense, and to the extent 20 that that indicates that there might be a 21 very small amount of doubt, then, yeah, I'll 22 admit to a very small amount of doubt, but 616 1 it's unlikely. 2 BY MR. KLAYMAN: 3 Q How do you explain the other 4 references we discussed today that refer to 5 your talking about the Secretary of Defense 6 and meeting with him in one hour and needing 7 the Tripp information for that meeting? 8 MR. ZARING: Objection. 9 THE WITNESS: They're all the same 10 source and the same document. It was three 11 documents that were the same feeders to the 12 same document and this is the notes that led 13 to that document. That's how I explain this. 14 So it's still one person's recollection of a 15 conversation. 16 BY MR. KLAYMAN: 17 Q This document, 105, isn't the same 18 document, is it? 19 A Well, I think we've determined that 20 the chief of Freedom of Information that 21 we're referring to is this man here, Les 22 Blake, and so it was his statement and his 617 1 answers that were provided. I think they're 2 all the same person stemming from the same 3 understanding of the conversation and all one 4 document. 5 Q And you have discussed Linda Tripp 6 with Les Blake? 7 A Les Blake is the person who I 8 requested the 398 from. That was the extent 9 of the conversation. 10 Q How many times have you talked to 11 Les Blake about Linda Tripp? 12 A In the course of obtaining the 398, 13 there were probably a series of three or four 14 phone conversations. 15 Q Did the Inspector General ever ask 16 you about this document, 105? 17 A No. 18 Q Did Independent Counsel Ken Starr's 19 office ever ask you about it? 20 A No. 21 Q Has anyone ever asked you about it 22 before today? 618 1 A No. 2 Q Now, I believe you testified 3 earlier today that after the lag between your 4 last deposition in April of 1998 and today 5 that you've lost a lot of memory about this 6 whole issue? 7 MR. ZARING: That mischaracterizes 8 his prior testimony. I object. 9 THE WITNESS: I certainly don't 10 remember the details of the few minutes -- 11 well, I certainly] don't remember the exact 12 times and dates of events, that's correct. 13 BY MR. KLAYMAN: 14 Q So you remember less today than you 15 remembered on April 30, 1998? 16 A I'm sure that's true. 17 Q And, consequently, contemporaneous 18 notes of Mr. Blake or anybody else such as 19 document 105 are perhaps more accurate than 20 your memory today? 21 MR. ZARING: Objection. 22 THE WITNESS: I think what 105 619 1 represents is an accurate recollection of the 2 way Mr. Blake thought the conversation went, 3 and I'm giving you as accurate a recollection 4 as I can give you of how I think the 5 conversation went, and it's perfectly normal 6 for two people to have a conversation and 7 disagree on the exact content without either 8 of them being wrong. 9 BY MR. KLAYMAN: 10 Q Well, whether or not the Secretary 11 of Defense wanted the information about Linda 12 Tripp and her file, that's not exactly a 13 minor matter, is it? 14 A The fact of the matter is that I've 15 never had a conversation with Secretary of 16 Defense about this subject, never had a 17 conversation. So all else -- I mean, that is 18 clear. If you ask me in the negative is it 19 possible that I did have one, the answer 20 would be no. 21 Q But you did have conversations with 22 people on the Secretary of Defense's staff 620 1 about Linda Tripp? 2 A Only Bob Tyrer and to the extent 3 that we talked about. 4 Q And you had more than one 5 conversation with Tyrer, correct? 6 A Yes, in the course of that one day. 7 Q Have you ever spoken with Mike 8 McCurry? 9 A I have spoken with Mike McCurry. 10 Q About how many times? 11 A Three or four. 12 MR. ZARING: Counsel, I'm going to 13 give you a little leeway here, but this is 14 far beyond the scope of the court's order. 15 BY MR. KLAYMAN: 16 Q You spoke with Mike McCurry in and 17 around the time of the Tripp release, 18 correct? 19 A No, I don't believe I did. 20 Q Now, when you testified the first 21 time you testified that Ken Bacon was the one 22 who had ordered you to get the Tripp 621 1 information, correct? 2 MR. ZARING: Objection. 3 THE WITNESS: I think I objected at 4 that time and I would object at this time to 5 the characterization of "ordered." He and I 6 -- he had gotten a call. I had come into his 7 office, and it was just as likely that I said 8 do you want me to handle that? It was much 9 more of a camaraderie type of event. It was 10 not -- I never did agree with your 11 characterization that he ordered. 12 BY MR. KLAYMAN: 13 Q Are you saying that the release of 14 Privacy Act material on Linda Tripp is a 15 question of camaraderie? 16 MR. ZARING: Objection. 17 Mischaracterization. 18 THE WITNESS: No, that's not what I 19 just answered. 20 BY MR. KLAYMAN: 21 Q But it was Bacon who called you 22 into the office, correct? 622 1 A Actually, it was me who went into 2 Bacon's office. 3 Q It was Bacon who raised the issue 4 of Linda Tripp's arrest record, correct? 5 A He raised the issue of Ms. Mayer's 6 call. 7 MR. ZARING: Object again. I'd 8 also point out that these questions have been 9 asked and answered a dozen times. 10 MR. KLAYMAN: I am summarizing. 11 MR. ZARING: Summarizing? 12 MR. KLAYMAN: Are you making fun of 13 me? 14 MR. ZARING: No. 15 MR. KLAYMAN: Please don't 16 interrupt me. 17 BY MR. KLAYMAN: 18 Q It was Ken Bacon who raised the 19 issue of Linda Tripp's arrest record, 20 correct? 21 A It was Ken Bacon who told me that 22 Ms. Mayer may have information about an event 623 1 -- an arrest record, yes. 2 Q And you stated during your first 3 deposition session that you and Bacon were 4 jointly responsible for obtaining the 5 information and releasing it to Jane Mayer, 6 correct? 7 A Yes. 8 Q Now, from the time of your first 9 deposition session to today, Bacon 10 recommended and you received a $10,000 cash 11 award, correct? 12 MR. ZARING: This has also been 13 asked and answered. 14 THE WITNESS: Yeah. Can you ask it 15 again? I'm trying to get the link that 16 you're making here. 17 BY MR. KLAYMAN: 18 Q Between the time of your first 19 deposition session and today's deposition 20 session, Bacon recommended and you received a 21 $10,000 cash award, correct? 22 A There is no relationship between 624 1 the two but yes. 2 Q And in fact today you've stated 3 that you assume full responsibility, correct, 4 for the release of Tripp's information? 5 MR. ZARING: Mischaracterization of 6 his prior testimony. 7 THE WITNESS: That's not what I 8 said. I said that I am the one who released 9 the information fully in conjunction and 10 keeping Ken Bacon informed, fully with his 11 knowledge, fully with his consent. 12 BY MR. KLAYMAN: 13 Q But you said you accept 14 responsibility? 15 A I accept -- the answer to the 16 question who released the information, the 17 answer is Cliff Bernath. I accept that, yes. 18 Q And you don't ascribe any 19 responsibility to Ken Bacon? 20 A That's not what I said. 21 MR. ZARING: Objection. 22 Q Do you ascribe responsibility to 625 1 Ken Bacon? 2 THE WITNESS: He and I shared the 3 responsibility he and I shared the decision 4 and he and I shared the process. 5 Q And you and he shared the blame? 6 MR. ZARING: Objection. 7 THE WITNESS: I didn't say that. 8 BY MR. KLAYMAN: 9 Q Do you? 10 A There's an ongoing investigation. 11 We'll see what that says. 12 Q Is it your position that Ken Bacon 13 is equally responsible whether it was legal 14 or not for the release of Linda Tripp's 15 information to Jane Mayer? 16 A Yes. 17 Q And during the period between your 18 first deposition session and today you also 19 received a job promotion, correct? 20 MR. ZARING: Objection. 21 THE WITNESS: I received a job that 22 is an ostensibly higher rank but is not a pay 626 1 race. 2 BY MR. KLAYMAN: 3 Q And Ken Bacon recommended you for 4 that higher rank, correct? 5 A There was a selection process and 6 he selected me, yes. 7 MR. KLAYMAN: I have no further 8 questions. 9 MR. GAFFNEY: I have no questions. 10 MS. COVEY: I have no questions. 11 THE VIDEOGRAPHER: We're going off 12 video record at 4:24. 13 (Whereupon, at 4:24 p.m., the 14 deposition of CLIFFORD H. 15 BERNATH was adjourned.) 16 * * * * * 17 18 19 20 21 22