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