IN THE DISTRICT COURT OF THE DISTRICT OF COLUMBIA - - - - - - - - - - - - - - -x : JUDICIAL WATCH, INC. : : Plaintiff, : : v. : Civil Action No. : 95-0133 : U.S. DEPARTMENT OF COMMERCE, : : Defendant. : : - - - - - - - - - - - - - - -x Washington, D.C. Thursday, April 15, 1999 Deposition of JOHN HUANG a witness of lawful age, taken on behalf of the Plaintiff in the above-entitled action, before Bethany J. Shields, Notary Public in and for the District of Columbia, in the Chambers of Magistrate Judge John M. Facciola, U.S. District Court, 3rd and Constitution, N.W., Washington, D.C. commencing at 10:08 a.m. 2 APPEARANCES: On Behalf of the Plaintiff: LARRY KLAYMAN, ESQ. Chairman and General Counsel Judicial Watch, Inc. 501 School Street, S.W., Suite 725 Washington, D.C. 20024 On Behalf of the Defendant: MARINA UTGOFF BRASWELL Assistant United States Attorney U.S. Attorney's Office 555 Fourth Street, N.W. 12th Floor Washington, D.C. 20001 ELISE PACKARD, ESQ. Office of the General Counsel U.S. Department of Commerce 14th Street and Constitution Avenue, N.W. Washington, D.C. 20230 On Behalf of the Deponent: TY COBB, ESQ. JOHN C. KEENEY, JR., ESQ. Hogan & Hartson, LLP 555 13th Street, N.W. Washington, D.C. 20004 Also present: Thomas Fitton, President, Judicial Watch 3 C O N T E N T S EXAMINATION BY: PAGE Counsel for Plaintiff 10 HUANG DEPOSITION EXHIBITS: No. 9 Plaintiff's Memorandum of Points and Authorities Regarding John Huang's Attempted Invocation of Fifth Amendment Privilege 16 No. 10 Building the American Dream for the 21st Century 38 No. 11 Asia-Pacific Business Outlook 1995 39 No. 12 Export Programs January 1995 39 No. 13 Competing to Win in a Global Economy 39 No. 14 National Export Strategy Report to the United States Congress October 1994 39 No. 15 Inquiry to John Huang, "Answers of John Huang to Questions Posed by Wall Street Journal." 58 No. 16 Document dated November 1996 63 No. 17 Bates Number 755, 756, 757 and 758 111 No. 18 DNC expense report of John Huang, National Finance 134 No. 19 Document 145 No. 20 Memorandum from Canico of APA 146 No. 21 Document 149 No. 22 Clinton Administration Asian-Pacific American Appointees 153 No. 23 Los Angeles Times article, January 29th, 1997 160 4 HUANG DEPOSITION EXHIBITS CONTINUED: No. 24 Memorandum of May 5th, 1994, to Ann Cahill from Martha Phipps concerning White House activities 162 No. 25 DNC Managing Trustee Events Membership Requirements Menu 169 No. 26 Document 172 No. 27 Letter, July 25th, 1994, to Melissa Moss from Terry McAuliffe 174 No. 28 Bob, Harry, Fran, Laura, Richard, Steven and Jay from Eric, January 13th, 1994, trade mission to Russia 179 No. 29 Memorandum to Melissa Moss from Sally Painter August 6, 1993, Office of Business Liaison, Week in Review No. 5, with attached memorandum of January 24, 1994 concerning OBO Weekly Activities from Sally Painter to Melissa Moss, Office of Business Liaison Biweekly Review No. 13 181 No. 30 Document to John Huang from T.S. Chung 193 No. 31 Bates numbers 1634, 4066, 1649, 1692, 1690, 1650, 1651, 4182, 4183, 4185, 4184, 4186, and 4187 202 No. 32 United States Government Appointment Book 1994 210 No. 33 United States Government Appointment Book 1995 218 No. 34 John Huang DOC Telephone Data, Domestic/Long Distance Domestic Calling Card Employment Period Search July 18, 1994 Through and Including January 17, 1996 219 No. 35 Huang Chronology 219 5 HUANG DEPOSITION EXHIBITS CONTINUED: No. 36 Notes dated February 18, 1999 219 No. 37 Classified Briefings/Meetings, same day meetings within week 219 No. 38 Calendar of John Huang for 1995, with the headings "Appointment, Place, Date, and Time 220 No. 39 Photograph of John Huang, James Riady, and Ronald Brown 242 * * * * * 6 1 P R O C E E D I N G S 2 THE VIDEOGRAPHER: Good morning. This is Volume 3 3 of the deposition of John Huang taken by the counsel for the 4 Plaintiff in the matter of Judicial Watch, Inc. v. U.S. 5 Department of Commerce on this date, April 15, 1999 and at 6 the time indicated on the video screen, which is 10:08 a.m. 7 My name is Sylvanius Holley. I am the 8 videographer. The court reporter today is Beth Shields from 9 the firm of Diversified Reporting. 10 Will counsel now introduce themselves? 11 MR. COBB: Ty Cobb and Jack Keeney on behalf of the 12 non-party deponent, John Huang. 13 MS. BRASWELL: Marina Braswell from the U.S. 14 Attorney's office on behalf of the Department of Commerce. 15 MS. PACKARD: Elise Packard, Office of the General 16 Counsel, Department of Commerce. 17 MR. FITTON: Tom Fitton, President, Judicial Watch. 18 MR. KLAYMAN: Larry Klayman General Counsel and 19 Chairman of Judicial Watch. 20 JUDGE FACCIOLA: Ms. Braswell? 21 MS. BRASWELL: Yes. Your Honor, I learned this 22 morning that Mr. Klayman had made an oral motion to Judge 23 Lambert for an emergency hearing. Mr. Klayman did not inform 24 me of this motion. I learned of it through a phone call from 25 Mr. Cobb. 7 1 Coming in here today, I asked Mr. Klayman that when 2 he makes an oral motion to a judge in this case that he have 3 the courtesy to inform me of it and he basically responded 4 that in essence he would let me know how it turned out. 5 So I would like the Court, please, to direct him 6 that when he makes an oral motion in this case that he should 7 have the courtesy to inform the other side. 8 JUDGE FACCIOLA: Well, we began this proceeding 9 long ago, a couple of months ago, and I thought we were 10 getting along famously. 11 MS. BRASWELL: So did I. 12 JUDGE FACCIOLA: And one of the things I said in my 13 letter is that I'm available at the drop of a hat at any time 14 for a conference call. I still am. 15 Why don't we all keep each other informed of what's 16 happening in court? I think it would make life easier. 17 MR. KLAYMAN: Your Honor, am I allowed to respond 18 to that? 19 JUDGE FACCIOLA: Sure, Mr. Klayman, but I don't 20 know why it warrants such a great response. 21 MR. KLAYMAN: Well -- 22 JUDGE FACCIOLA: The usual courtesy is you call the 23 other guy and say I'm going to the judge and then you meet at 24 the judge or the judge gets back to you in a conference call. 25 MR. KLAYMAN: Well, you haven't even heard my side 8 1 of the argument and you're accepting hers before anything is 2 said? 3 JUDGE FACCIOLA: No. Well, okay, go ahead, 4 Mr. Klayman. Say what you wish. 5 MR. KLAYMAN: The fact is I simply called to see 6 whether there was time available. We do intend, Your Honor, 7 to appeal your ruling, in all due respect, with regard to 8 waiver. We were seeing whether Judge Lamberth was available 9 and he's not available this morning, but he is available 10 later in the day if problems arise. 11 I was going to put it on the record today that I 12 had made such an inquiry, but before I had an opportunity, I 13 was accosted in the hallway by Ms. Braswell, saying why 14 didn't you inform me. And it's not a substantive matter to 15 request whether a judge has time for a potential hearing. 16 If, obviously, the judge did have time, I would have informed 17 her and informed you at the time. 18 JUDGE FACCIOLA: Fine. Thank you. 19 MR. KLAYMAN: There was no substantive discussion 20 on the merits of any of our claims. We respect you, we 21 respect Judge Lamberth and we would not go around you. 22 JUDGE FACCIOLA: That's fine. I understand. 23 Thank you very much. 24 MR. KLAYMAN: You're welcome. 25 JUDGE FACCIOLA: Thank you, Mr. Klayman, 9 1 Ms. Braswell. 2 All right. I assume you all have received a copy 3 of the order which I issued yesterday about the 4:30 p.m.? 4 MR. FITTON: Yes, Your Honor. 5 MS. BRASWELL: Yes. 6 JUDGE FACCIOLA: There is one loose end which I 7 wish to address right now. 8 In Mr. Klayman's pleading, you know he made the 9 representation that it is his understanding that this witness 10 has received immunity. As I assured Mr. Klayman and the rest 11 of you I would do, I made independent examination of that 12 question by virtue of a series of ex parte submissions made 13 to me. 14 I have now assured myself as a judicial officer 15 that this witness has not been afforded any transactional 16 immunity and therefore his privilege survives. 17 With reference to his privilege, we shall proceed 18 as follows: As to each question which Mr. Klayman poses, I 19 expect Mr. Cobb and Mr. Keeney, you will assert any and all 20 objections you have, including objections on the grounds of 21 relevance, and, of course, the assertion of the witness' 22 privilege. 23 I will then rule on the privilege on a 24 question-by-question basis, as I understand I am obliged 25 to do. 10 1 There is one other complication which I suppose we 2 can deal with when it arises, but I just wanted to explain to 3 all of you the preparations I have made in case it arises. I 4 would hope I will be able for the most part to make the 5 determination of the applicability of privilege on the basis 6 of the question itself. 7 If the situation does arise where I can't and I 8 need further explication from counsel, there is a second 9 court reporter in my courtroom. I will take in that room 10 from Mr. Cobb, Mr. Keeney and Mr. Huang any additional 11 explication they wish to make and that would, of course, be 12 placed under seal and made available to Judge Lamberth if he 13 seeks to review any of my decisions. 14 MR. COBB: Very well. Thank you, Your Honor. 15 MR. KEENEY: Thank you. 16 JUDGE FACCIOLA: In terms of the privilege, I 17 think, Mr. Keeney, you read it in the record and may we all 18 agree that when you assert in a shorthand way the Fifth 19 Amendment privilege, it will mean that privilege which you 20 read into the record yesterday and which you have reproduced 21 in your pleading. 22 MR. KEENEY: Yes. So stipulated, Your Honor. 23 MR. COBB: So stipulated, Your Honor. And if I 24 might preface that, as indicated in the manner in which it 25 was read into the record, he's asserting it on the advice of 11 1 counsel. 2 MR. KLAYMAN: I understand. 3 MR. COBB: Thank you, Your Honor. 4 MR. KLAYMAN: Your Honor, before we proceed, let 5 the record also reflect yesterday we did -- we called Judge 6 Lambert's chambers to see whether they had received a copy of 7 Mr. Huang's pleading. We didn't receive anything by noon -- 8 JUDGE FACCIOLA: I'm sorry to hear that. 9 MR. KLAYMAN: But we did get a copy from your 10 chambers and we later got a copy from Mr. Huang's counsel. 11 When I spoke with Judge Lamberth's secretary, 12 she advised they had not received a copy of Mr. Huang's 13 pleading. I gave a copy to Judge Lamberth's law clerk this 14 morning. 15 JUDGE FACCIOLA: Thank you. 16 MR. KLAYMAN: And I would request that Mr. Huang, 17 if he files anything, serve it with not just your 18 magistrate's judge's honor but also Judge Lamberth. 19 JUDGE FACCIOLA: I think that's an appropriate 20 practice. Thank you. Or perhaps we all just buy stock in 21 Xerox. 22 Whereupon, 23 JOHN HUANG 24 was recalled as a witness and, after having been previously 25 duly sworn, was examined and testified further as follows: 12 1 EXAMINATION BY COUNSEL FOR PLAINTIFF (RESUMED) 2 BY MR. KLAYMAN: 3 Q Mr. Huang, you realize that you are still under 4 oath? 5 A Yes. 6 Q During the previous deposition on April 13th, I 7 asked you the question, "And during that deposition on 8 October 29, 1996, you testified truthfully in all respects?" 9 I asked you that question and you remember that, correct? 10 A On the advice of counsel, I exercise my right 11 under the Constitution of the United States to refuse to 12 answer on the ground that my answer may tend to incriminate 13 me and, to the extent the question is related to any 14 statement I have made previously that is found to have been 15 incriminating, answering the question places me in danger of 16 further incrimination. 17 Q Mr. Huang, what is it about answering that question 18 that would place you in further incrimination? 19 MR. COBB: He relies on his statement, Your Honor. 20 MR. KLAYMAN: Your Honor, the issues have been 21 briefed in terms of the showing that needs to be made to be 22 able to assert the privilege and the burden is on the party 23 asserting the privilege to show that they would be 24 incriminated by responding to that privilege, so that's the 25 reason why I'm asking the question. 13 1 JUDGE FACCIOLA: The assertion of the privilege 2 will be sustained. 3 MR. KLAYMAN: May I get a ruling from the Court 4 as to whether or not the case of Morganroth, 718 F.2d 161, 5 6th Circuit, which states that "Morganroth," he's the person 6 who asserted the privilege, "must supply such additional 7 statements under oath and other evidence to the District 8 Court in response to each question propounded so as to enable 9 the District Court to reasonably identify the nature of the 10 criminal charge for which Morganroth fears prosecution for 11 perjury, i.e., perjury, and to discern a sound basis for the 12 witness' reasonable fear of prosecution." 13 It further states "Unless some additional showing 14 beyond the mere assertion of privilege is required, no 15 witness will ever have to testify twice regarding the same 16 subject matter because the possibility of perjury would 17 always exist in theory." 18 That is the relevant case law with regard to the 19 showing, Your Honor, that needs to be made. 20 JUDGE FACCIOLA: It's a portion of the relevant 21 case law with reference to this. The controlling authority 22 in this jurisdiction, although I have read that case very 23 carefully, is the Wilcox decision in the 5th Circuit which 24 was cited as controlling in the most recent decision by the 25 Circuit Court of Appeals. 14 1 In my view, asking a witness if he told the 2 truth on a prior occasion when he was under oath is 3 self-incrimination of the most obvious sort and was so 4 identified in Wilcox v. United States. 5 MR. KLAYMAN: In Hoffman v. United States, 6 Your Honor, 341 U.S. 479, F.486, 1951, a Supreme Court 7 case -- 8 JUDGE FACCIOLA: Yes, I'm well aware of it. 9 MR. KLAYMAN: -- the Court holds "A witness is not 10 exonerated from answering merely because he declares that in 11 doing so he would incriminate himself." 12 JUDGE FACCIOLA: But it is also true that I have a 13 judicial obligation to ascertain whether the answer to that 14 question would tend to incriminate him and I have concluded 15 that it would. 16 MR. KLAYMAN: In which case I would like him to 17 identify from his prior testimony exactly what it is about 18 the subject matter, not the statement itself, just some prima 19 facie showing that would tend to incriminate him. What was 20 it that I asked him at the prior deposition, subject matter 21 wise, that would tend to incriminate him? 22 JUDGE FACCIOLA: Mr. Cobb? 23 MR. COBB: Your Honor -- 24 MR. KLAYMAN: I'm asking the witness. I'd like the 25 witness to answer. 15 1 JUDGE FACCIOLA: I'm asking Mr. Cobb if the witness 2 would assert his privilege. 3 MR. COBB: Thank you, Your Honor. Yes, he would, 4 Your Honor. 5 THE WITNESS: I would. 6 MR. KLAYMAN: The objection is sustained. 7 MR. COBB: Thank you, Your Honor. 8 Your Honor, just so the record is clear on this, 9 having reviewed Judge Lamberth's order reopening the 10 deposition and Mr. Klayman's papers related to why he thought 11 that was appropriate, the grounds cited therein, the areas 12 which he indicated required exploration, Mr. Huang will 13 assert the privilege in response to all those areas. 14 JUDGE FACCIOLA: We shall do it on a 15 question-by-question basis. 16 MR. COBB: Yes. I just -- 17 JUDGE FACCIOLA: We have no choice. 18 MR. COBB: No, I understand that, Your Honor. I 19 just didn't want to -- 20 JUDGE FACCIOLA: I understand your point. 21 MR. COBB: Thank you. 22 JUDGE FACCIOLA: Thank you, Mr. Cobb. 23 Mr. Klayman? 24 MR. KLAYMAN: I'm showing Mr. Huang what has been 25 appended, what was part of a filing which we made yesterday 16 1 entitled "Plaintiff's Memorandum of Points and Authorities 2 Regarding John Huang's Attempted Invocation of Fifth 3 Amendment Privilege" and I'll ask that it be marked Exhibit 4 9. All the counsel have copies of it. 5 (Huang Deposition Exhibit No. 9 6 was marked for identification.) 7 BY MR. KLAYMAN: 8 Q Mr. Huang, turn to your letter of July 11, 1997 to 9 the Honorable John Glenn. 10 MR. COBB: I think it's July 8th. 11 BY MR. KLAYMAN: 12 Q July 8th. Excuse me. Which was sent by your 13 counsel, Mr. Ty Cobb, to the Honorable Senator John Glenn, a 14 member of the Committee on Government Affairs. Do you see 15 that letter? 16 A Yes, sir. 17 Q Have you ever seen this letter before? 18 A On the advice of counsel, I exercise my right under 19 the Constitution of the United States to refuse to answer on 20 the ground that my answer may tend to incriminate me and, to 21 the extent the question is related to any statement I have 22 made previously that is found to have been incriminating, 23 answering the question places me in danger of further 24 incrimination. 25 MR. KLAYMAN: The assertion of the privilege is 17 1 overruled. It solely has to be answered yes or no. 2 (The witness conferred with counsel.) 3 MR. COBB: Your Honor, we respectfully request to 4 invoke the procedure. 5 MR. KLAYMAN: You may. 6 THE VIDEOGRAPHER: We're going off video record. 7 MR. KLAYMAN: Excuse me, Your Honor. What 8 procedure are we talking about? 9 JUDGE FACCIOLA: I am now going to go into this 10 room with another reporter and take ex parte submissions from 11 these gentlemen so we can move on. 12 MR. KLAYMAN: May I request -- I was not advised of 13 any such procedure. 14 JUDGE FACCIOLA: I advised you of it a moment ago. 15 MR. KLAYMAN: Can I meet with Your Honor first 16 before we do that? 17 JUDGE FACCIOLA: Well, let's discuss it. We have 18 to wait for this reporter anyway. 19 MR. KLAYMAN: Well, what I'm trying to ascertain is 20 your order was silent yesterday as to any procedures as to 21 how we're going to do this. When was such procedure put into 22 effect? Because we were never advised of it and I don't know 23 what the procedures are. 24 JUDGE FACCIOLA: I explained them to you when I 25 arrived this morning. I told you that in order to inform -- 18 1 in the exercise of my responsibility, I have to walk between 2 the very tight line between forcing Mr. Huang to give up the 3 privilege to get it. In ascertaining, as you have insisted I 4 must, that there is a basis for the privilege, the only way I 5 decided I can do that is to hear from counsel ex parte and 6 under seal as to why they believe the privilege applies. On 7 the basis of being so informed, I will then rule. 8 MR. KLAYMAN: And this is no lack of respect 9 towards Your Honor, but I'm trying to grapple with the way 10 that we could then take an appeal of this if we are not able 11 to see exactly what the basis is. 12 JUDGE FACCIOLA: The reason for the reporter being 13 in the other room will be to provide Judge Lamberth with a 14 transcript of those proceedings and then you can make 15 whatever argument you wish, that incident to his review of my 16 responsibility he should permit you to review what occurs 17 between me and these gentlemen. 18 MR. KLAYMAN: Would we be entitled to learn the 19 legal arguments involved in this? 20 JUDGE FACCIOLA: I will do everything in my power 21 when I return to the room to summarize for you why I have 22 reached the conclusion I have without forcing Mr. Huang to 23 give up the privilege to gain it. No one is going to pretend 24 this is going to be easy, but I shall try to do it and handle 25 it the way I've handled other privilege questions in which I 19 1 try to if the privilege is asserted and found to be 2 applicable nevertheless to try to explain as best I can the 3 reasons for my ruling. 4 MR. KLAYMAN: I understand the procedure. 5 JUDGE FACCIOLA: Thank you. 6 Gentlemen? 7 THE VIDEOGRAPHER: We are going off video record at 8 10:23. 9 (Whereupon, at 10:23 a.m., an ex parte discussion 10 was held off the record.) 11 JUDGE FACCIOLA: The assertion of the privilege 12 will be overruled and the witness will answer the question. 13 THE VIDEOGRAPHER: Stand by, please. 14 (Pause.) 15 THE VIDEOGRAPHER: We are back on video record at 16 10:27. 17 JUDGE FACCIOLA: The assertion of the privilege is 18 overruled. The witness shall answer the question. 19 Now, gentlemen, Mr. Cobb and Mr. Keeney, you must 20 now advise me what your position will be. If I overrule the 21 privilege, we have to appreciate that as a United States 22 magistrate judge, I do not have contempt power. I do have 23 the power to report and recommend to Judge Lamberth that for 24 contempt committed in my presence that he hold the witness in 25 contempt. I have written about this in one of my decisions 20 1 called Athridge v. Ebner Corporation. 2 So, gentlemen, you must now advise me whether when 3 I overrule the privilege the witness will answer or will he 4 decline to answer subject tot he possibility that in my 5 report and recommendation I will recommend that he show cause 6 why he should not be held in contempt before Judge Lamberth. 7 MR. COBB: Your Honor, there may well come a time 8 when that occurs, in candor to the Court, however, not in 9 response to this question. 10 JUDGE FACCIOLA: Thank you very much. 11 Mr. Huang, please answer the question. 12 THE WITNESS: I'm not sure I read this letter. 13 BY MR. KLAYMAN: 14 Q Why is it that you're not sure that you read the 15 letter? 16 A The reason I entrust my legal counsel to handle the 17 matter for me, I just left the matter for them to handle. 18 Q Have you had an opportunity to read the letter? 19 A Right now? No, I have not. 20 Q Please read it. 21 A Okay. 22 (The witness reviewed the document.) 23 THE WITNESS: Yes, Mr. Klayman. 24 BY MR. KLAYMAN: 25 Q Does this refresh your recollection whether you've 21 1 seen this letter before? 2 A I still don't, but I know the gist of it, of the 3 conversation that my counsel was intending to do. 4 Q What do you mean by the gist of the conversation 5 your counsel was intending to do? 6 MR. COBB: Objection, Your Honor. Refers to a 7 conversation with counsel. 8 JUDGE FACCIOLA: Sustained. 9 BY MR. KLAYMAN: 10 Q Do you agree with the contents of this letter? 11 MR. COBB: Objection, Your Honor. 12 JUDGE FACCIOLA: On what grounds? 13 MR. COBB: Again on the grounds of the privilege. 14 JUDGE FACCIOLA: Sustained. 15 MR. KLAYMAN: Your Honor, it says -- I'm just 16 asking whether or not -- well, let me make a proffer. It 17 says, "On behalf of my client, Mr. John Huang, I am writing 18 to confirm that" and then it goes on to confirm certain 19 things. 20 And I'm entitled ask, since this is a public 21 document, whether or not Mr. Huang agrees with what his 22 counsel put forward to the United States Senate and when you 23 put something forward to the United States Senate, you put it 24 forward under oath. 25 JUDGE FACCIOLA: Perhaps having read the letter, I 22 1 am of the view that it raises the risk that the answer to 2 your question would tend to incriminate him. I sustain the 3 objection. 4 MR. KLAYMAN: Your Honor, I would then move for 5 disqualification of counsel because counsel will have a 6 conflict of interest with his client. If he's putting 7 forward arguments that would tend to incriminate his client, 8 he can no longer represent his client. 9 JUDGE FACCIOLA: The decision whether Mr. Huang 10 want's Mr. Keeney and Mr. Cobb to continue as his counsel is 11 his, not mine, to make. 12 Do you wish them to continue as your counsel? 13 THE WITNESS: Yes, Your Honor. 14 JUDGE FACCIOLA: The objection is overruled. 15 MR. KLAYMAN: Your Honor, it's not just a decision 16 on the basis of whether Mr. Huang wants them to continue or 17 not. This counsel, Mr. Keeney, has been reported, and I 18 don't know if it's still currently true, to have represented 19 the Democratic National Committee, the law firm of Hogan & 20 Hartson has been reported to represent the People's Republic 21 of China. 22 Now, there are all kinds of potential conflicts 23 here and Mr. Huang himself deserves the right to be able to 24 make an informed decision on this. But, secondly, the Court 25 deserves to have counsel here who are unfettered by other 23 1 conflicts of interest in terms of asserting the privilege. 2 JUDGE FACCIOLA: Mr. Keeney, do you wish to speak 3 to that? 4 MR. KEENEY: Yes, I do, Your Honor. As co-chair of 5 the legal ethics committee of Hogan & Hartson, let me assure 6 Your Honor that this was done with full approval of the 7 ethics committee, in compliance with every ethical standard 8 and there is absolutely no merit to the allegations which 9 Mr. Klayman says that we have a disqualifying conflict of 10 interest. 11 JUDGE FACCIOLA: Mr. Huang, if I may -- 12 THE WITNESS: Yes, Your Honor? 13 JUDGE FACCIOLA: Conflict of interest describes a 14 situation where a lawyer represents a person even though he 15 may have a motivation because of another client. 16 A classic conflict of interest, Mr. Huang, would 17 be, for example, if a lawyer tried to represent both sides to 18 a divorce. The necessity of advancing the wife's interests 19 might place him in conflict of interest with advancing the 20 husband's interests. Do you understand that, Mr. Huang? 21 THE WITNESS: Yes, I do, Your Honor. 22 JUDGE FACCIOLA: As any citizen who has retained 23 counsel, you are entitled to conflict-free representation if 24 you insist upon it. Do you understand that? 25 THE WITNESS: Yes, I do, Your Honor. 24 1 JUDGE FACCIOLA: Are you fully informed of the 2 circumstances under which Mr. Keeney represented you and the 3 Democratic National Committee? 4 THE WITNESS: Yes, I am fully aware of that. 5 JUDGE FACCIOLA: And having been fully advised of 6 those circumstances and being fully informed, do you wish Mr. 7 Keeney and Mr. Cobb to continue their representation of you? 8 THE WITNESS: Yes, Your Honor. 9 MR. KLAYMAN: And I might ask that Your Honor pose 10 the question if he's aware that the law firm of Hogan & 11 Hartson represents the People's Republic of China. 12 JUDGE FACCIOLA: I do not know if that is so. 13 Is it? 14 MR. KEENEY: Your Honor, I don't think that's 15 correct, but even if it were correct, I don't think I could 16 make that representation because I am bound by the firm's 17 duties of loyalty and confidence to all clients and we don't 18 talk about other clients' businesses before a court, so we're 19 bound by attorney-client privilege. So even if it were, I 20 couldn't tell you. 21 MR. KLAYMAN: Your Honor, it's been reported on a 22 number of occasions as late as, I believe, yesterday or the 23 day before by Mr. Dick Morris, who was formerly a close 24 presidential advisor to President Clinton. 25 Mr. Huang certainly deserves the opportunity to 25 1 know that and the Court does as well. 2 MR. COBB: Your Honor, can I make a shortcut 3 offering? 4 JUDGE FACCIOLA: I would appreciate it if you 5 would, Mr. Cobb. 6 MR. COBB: Your Honor, we would be more than happy 7 if Mr. Klayman would like to prepare a memorandum of all the 8 things that he thinks create a conflict and we will 9 faithfully pass that on to our client and discuss it at great 10 length with him and give him every opportunity he is entitled 11 to under the law. 12 JUDGE FACCIOLA: In light of that representation, 13 counsel, I will not permit the question concerning 14 representation of the People's Republic of China. Also, I am 15 very hard pressed to see the relevance of that fact. 16 MR. KLAYMAN: Your Honor, perhaps as this 17 deposition proceeds it will become more apparent, that if you 18 just simply look at Mr. Huang's desk diaries you will, I 19 think, be able to ascertain -- I know you will be able to 20 ascertain the relevance of that, that he had several meetings 21 with the representatives of the People's Republic of China. 22 It has been reported widely that he passed classified 23 documents to agents of the People's Republic of China, by Bob 24 Woodward of The Washington Post and by others. There is a 25 clear conflict of interest here. 26 1 JUDGE FACCIOLA: Then you are going to have to put 2 those in writing, serve them upon Hogan & Hartson and I'll 3 order them to show cause why they should not be disqualified 4 from further representation of this gentlemen. 5 But for present purposes, Mr. Huang, there's an 6 allegation made that Hogan & Hartson also represents the 7 People's Republic of China. If that were so, Mr. Huang, do 8 you still wish to have Mr. Cobb and Mr. Keeney continue with 9 your deposition subject to their giving you the fullest 10 information possible about their other representations so 11 that you can make any additional informed judgment later on? 12 THE WITNESS: I still do, Your Honor. 13 JUDGE FACCIOLA: Thank you, Mr. Huang. 14 THE WITNESS: Thank you. 15 JUDGE FACCIOLA: Please proceed. 16 MR. KLAYMAN: Your Honor, under the case law that I 17 provided, I want to ask more specific questions. Your Honor 18 can make a ruling as I do so. 19 JUDGE FACCIOLA: Indeed I will. 20 BY MR. KLAYMAN: 21 Q In this letter, the third paragraph, Mr. Huang -- 22 let's go for the second paragraph. "In addition," I'm 23 going to read the whole second paragraph, "the immunity 24 sought by Mr. Huang," this is the immunity which your counsel 25 is asking for before the Committee on Governmental Affairs, 27 1 "understandably would not protect him from lying or providing 2 false testimony to the committee." 3 Why is it that you didn't ask for immunity for 4 lying or providing false testimony to the Committee on 5 Governmental Affairs? 6 MR. COBB: Objection, Your Honor. 7 JUDGE FACCIOLA: The privilege will be sustained. 8 BY MR. KLAYMAN: 9 Q It says then, "In addition, because neither 10 Mr. Huang nor I would offend a man of your background by 11 suggesting that espionage of any sorts merits immunity, 12 Mr. Huang does not seek immunity in connection with the 13 use of his testimony as to any violations of the following 14 statutes: 18 U.S.C. 798, disclosure of classified 15 information; 18 U.S.C. 951, agents of foreign governments; 16 18 U.S.C. 1831, economic espionage; or 50 U.S.C. 783, 17 unlawful communication or receipt of classified information." 18 Mr. Huang, are you aware that these provisions were 19 put forward to the Committee on Governmental Affairs as a 20 reason why you did not seek immunity, these legal statutes? 21 JUDGE FACCIOLA: The application of the privilege 22 will be sustained. 23 MR. COBB: Thank you, Your Honor. 24 MR. KLAYMAN: Your Honor, may I ask for 25 reconsideration on why a matter of public record would be 28 1 subject to privilege? 2 JUDGE FACCIOLA: Asking the witness why he did not 3 seek immunity or why he sought a various form of immunity 4 would provide evidence as to his motivation which would tend 5 to incriminate him because it would expose directly or 6 indirectly some reason in his own mind that he needed that 7 immunity. 8 MR. KLAYMAN: But my question was whether he was 9 aware that he did not ask for immunity under those statutes 10 with regard to the Senate Thompson committee hearings. Just 11 aware. 12 JUDGE FACCIOLA: His awareness of that, in my view, 13 falls within the privilege because his awareness, again, 14 would be a premise to impute to him a desire or need for that 15 immunity which might tend to incriminate him. 16 MR. KLAYMAN: However, Your Honor, the case law 17 states that he must set forth some basis and he has the 18 burden as to why the statement would be incriminating. 19 JUDGE FACCIOLA: It doesn't say that, Mr. Klayman. 20 What it says is that he must do that only if it is not 21 self-evident from the question that the privilege is invoked. 22 In my view, it is so evident. 23 MR. KLAYMAN: If I may add one other thing for the 24 record, Your Honor, one could argue, although I wouldn't 25 agree with it, that that may be the case if he was saying 29 1 that he wanted immunity with regard to these particular 2 statutes, however, he's saying here he doesn't want immunity, 3 which is a statement that he fears no prosecution and I'm 4 entitled to ask him at the time that this letter was 5 submitted, July 8, 1997, Mr. Huang, did you fear prosecution? 6 MR. COBB: Objection. 7 JUDGE FACCIOLA: That question would tend to 8 incriminate him. If he admitted that he feared prosecution, 9 that would mean he would have a reason to fear prosecution, 10 which could be used as a damaging admission against him in 11 any investigation of this matter. 12 The scope of the Fifth Amendment is as broad, 13 Mr. Klayman, as the potential prosecution. The Hoffman case 14 which you cited, the Rogers case, indicate that the surest 15 way to destroy it is to give it niggardly interpretation that 16 puts the witness in the impossible position of waiving the 17 privilege by claiming it. I cannot permit that to occur in a 18 way that is consistent with my judicial responsibilities. 19 MR. KLAYMAN: But, again, Your Honor, the question 20 was whether he was aware that this was asserted. I didn't 21 ask him his reasons. I asked the foundation question. I 22 submit I am able to ask him his reasons, too, for purposes of 23 appeal, but I just asked him if he was aware. 24 JUDGE FACCIOLA: And I have sustained his 25 invocation of privilege. 30 1 BY MR. KLAYMAN: 2 Q Now, in the third paragraph on the first page, it 3 says "In offering to subject himself to the challenging 4 circumstances which may follow if an appropriate agreement 5 can be achieved, Mr. Huang is motivated not by a fear of 6 prosecution, as evidenced by his willingness to expose 7 himself without restriction to the most serious allegations 8 against him, but instead by his passion, even poignant view 9 that the interests of Asian-Americans have suffered unduly 10 because of his inability under the circumstances to respond 11 to the concededly legitimate questions which pertain to his 12 conduct with the Lippo Group, the United States Department of 13 Commerce and the Democratic National Committee, including the 14 unfounded and insensitive allegations of espionage. 15 "Mr. Huang is prepared to defend himself vigorously 16 through counsel within the justice system enjoyed by all 17 Americans. Having become a defenseless target for Asian 18 bashers, however, Mr. Huang feels compelled to forego the 19 security of his constitutional protections and to attempt 20 honorably to acknowledge whatever mistakes he may have made 21 over time and in the process to attempt to dispel the 22 regrettable racism spawned by the repeated, often erroneous, 23 depictions of him and his activities." 24 Mr. Huang, is it true that you did not fear 25 prosecution, that you simply were concerned that inquiry into 31 1 the matters concerning your activities was racism? 2 MR. COBB: Objection, Your Honor. 3 JUDGE FACCIOLA: The application of the privilege 4 will be sustained. 5 MR. KLAYMAN: Your Honor, in the briefs that were 6 filed yesterday, a copy of which was not provided to Judge 7 Lamberth from Mr. Huang, they run the argument that one of 8 the reasons that there will be incrimination is because of a 9 reflexive reaction of the court to Mr. Huang and his origins. 10 And -- 11 MR. COBB: I object to that, Your Honor. I don't 12 think that is -- 13 MR. KLAYMAN: That is the way I certainly 14 interpreted that. And therefore having put that argument 15 forward as late as yesterday, having made statements at the 16 prior deposition that this -- that even Asian-Americans can 17 claim the Fifth Amendment, that was stated by Mr. Cobb, and 18 that release of the proceedings to the public would be 19 "McCarthyite," this obviously is a relevant question in terms 20 of the context of whether the claim of Fifth Amendment 21 privilege is based upon a fear of prosecution or a fear of 22 persecution of Asian-Americans. 23 MR. COBB: Need I respond, Your Honor? 24 JUDGE FACCIOLA: The application of the privilege 25 is sustained. 32 1 You may ask your next question. 2 BY MR. KLAYMAN: 3 Q "In closing, please be assured that Mr. Huang's 4 offer to testify under the circumstances identified above is 5 submitted with great respect for the committee and its 6 members. Moreover, it is presented with humility and 7 contrition and the hope of facilitating the important 8 interests of this committee, Asian-Americans and, indeed, all 9 citizens interested in a prompt and informed understanding of 10 Mr. Huang and his conduct." 11 Mr. Huang if called to testify today by the Senate, 12 would you appear and testify under the conditions set forth 13 in this letter? 14 MR. COBB: Objection, Your Honor. 15 JUDGE FACCIOLA: The invocation of the privilege 16 will be sustained. 17 MR. KLAYMAN: Your Honor, that does not relate to 18 whether or not he's going to be incriminated, I just simply 19 asked him whether -- 20 JUDGE FACCIOLA: Mr. Klayman, let's see if we can 21 get something straight here. The witness has asserted his 22 privilege. As a judicial officer, I am ruling upon that. 23 At that point, after I have ruled, if you wish to 24 make a brief statement objecting to my ruling, so be it. But 25 I would seriously appreciate in light of the situation we are 33 1 in if you would go to your next question. Because I assure 2 you, sir, I will make my legal ruling on the basis of the 3 case law as I understand it and, as I have tried to explain, 4 I am obliged by Supreme Court authority and the authority of 5 this circuit to give a wide berth to Mr. Huang in the 6 assertion of his privilege. It appears that every question 7 you have asked would tend to incriminate him. I remain of 8 that view, sir. 9 MR. KLAYMAN: I did ask one question, Your Honor, 10 you overruled -- 11 JUDGE FACCIOLA: Excuse me. With the exception of 12 one question. 13 MR. KLAYMAN: Okay. 14 BY MR. KLAYMAN: 15 Q I previously marked at the earlier deposition, 16 Mr. Huang, Exhibit 8, which was a notice of deposition 17 which required your attendance here today and attached to 18 that notice of deposition is a subpoena. I'm showing you 19 Exhibit 8. 20 Do you have a copy of that? It was marked at the 21 last deposition. 22 MS. BRASWELL: I do. 23 MR. COBB: I don't think he was permitted to retain 24 them. 25 MR. KLAYMAN: Do you have the original? 34 1 MS. BRASWELL: Do I have the original? 2 MR. KLAYMAN: It was on the table, apparently 3 somebody picked it up. 4 Can I ask that it be re-marked as Exhibit 8, 5 Your Honor? 6 JUDGE FACCIOLA: Certainly. 7 I've got it. Thank you. 8 BY MR. KLAYMAN: 9 Q Do you remember seeing Exhibit 8 on Tuesday, 10 Mr. Huang? 11 MR. COBB: On Tuesday, did you see Exhibit 8? 12 THE WITNESS: No, sir. 13 BY MR. KLAYMAN: 14 Q You didn't see it on Tuesday? 15 MR. COBB: On Tuesday. 16 THE WITNESS: This Tuesday? 17 MR. COBB: When you were deposed previously. 18 THE WITNESS: Wait a minute. 19 MR. COBB: He showed us this, he marked this for 20 identification on Tuesday and you may not have read it, but 21 he did mark it for identification and hand it to you. 22 THE WITNESS: Okay. I do. Yes. 23 BY MR. KLAYMAN: 24 Q Prior to Tuesday, did you ever see Exhibit 8? 25 MR. COBB: Objection. 35 1 JUDGE FACCIOLA: Why? You've lost me, Mr. Cobb. 2 Prior to Tuesday, did he ever see Exhibit 8? 3 MR. COBB: Yes, Your Honor. 4 JUDGE FACCIOLA: I didn't know that Exhibit 8 was 5 in existence prior to Tuesday. 6 MR. COBB: Oh, I'm sorry. 7 MR. KLAYMAN: Your Honor -- 8 MR. COBB: Exhibit 8, it is the subpoena and 9 details the document demands and related things. It had been 10 served prior -- well, it hadn't been served, but it had been 11 issued prior to Tuesday. 12 JUDGE FACCIOLA: I understand. 13 MR. COBB: So that it wasn't technically Exhibit 8 14 at that time, but prior to it's marking as Exhibit 8, is the 15 pending question, as I understand it, had he seen it. And we 16 would invoke the privilege. 17 JUDGE FACCIOLA: And I'm going to overrule the 18 privilege for the narrow question, yes or no. 19 (The witness conferred with counsel.) 20 MR. COBB: You can answer. 21 THE WITNESS: I did not, Your Honor. 22 JUDGE FACCIOLA: Thank you. 23 BY MR. KLAYMAN: 24 Q On Tuesday -- let me back up. Take an opportunity 25 and review Exhibit 8, please. And I turn your attention to 36 1 Appendix A, which are the document requests of the subpoena. 2 A You're talking about page 3, Mr. Klayman? 3 MR. KLAYMAN: Yes. 4 (The witness reviewed the document.) 5 MR. COBB: And the question? 6 BY MR. KLAYMAN: 7 Q The question was prior to Tuesday, were you aware 8 that the Court was requesting you to produce the documents 9 set forth in paragraphs 1, 2 and 3 of Appendix A -- 10 MR. COBB: Objection, Your Honor. 11 MR. KLAYMAN: -- to Exhibit 8? 12 JUDGE FACCIOLA: The invocation of the privilege 13 will be sustained. 14 MR. COBB: In addition, just for the record, 15 Your Honor, in connection with anything that might require 16 testimony about consultation with counsel, that in addition 17 to privilege, I have the attorney-client privilege. 18 JUDGE FACCIOLA: I understand. 19 MR. COBB: Thank you, Your Honor. 20 MR. KLAYMAN: And the reason I'm asking this 21 question, if I may, is to ascertain whether Mr. Huang did an 22 adequate search for documents pursuant to this subpoena. 23 JUDGE FACCIOLA: Which if he did not would tend to 24 expose him to incrimination and contempt. The question falls 25 directly within the privilege. 37 1 MR. KLAYMAN: Your Honor, the reason that I ask for 2 reconsideration of that ruling, if that's the case, then 3 anyone who ever produces documents in any proceeding will in 4 fact never have to account for any court process as to 5 whether or not they're obeying it or not. I mean, that's 6 like a self-executing incrimination. 7 JUDGE FACCIOLA: But you have to remember, sir, 8 that we are in a quite different context. We are in the 9 context where a judge, the Honorable Judge Royce C. Lamberth, 10 having written an opinion in which he indicated that this 11 witness, among other things, that there were at least 12 accusations that this witness had removed documents 13 improperly from his place of employment, that he was not 14 credible, the cases that you have brought to my attention, 15 counsel has diligently brought to my attention, I must 16 consider all these circumstances. 17 In my view, asking this particular witness whether 18 he was faithful to a responsibility to a court in looking 19 for, searching and producing documents directly incriminates 20 him in the most obviously way. 21 MR. KLAYMAN: Your Honor's order makes a 22 distinction between going over past issues and going over new 23 issues. While I do respectfully agree with portions of 24 Your Honor's order and we'll take that up on appeal on behalf 25 of Judicial Watch, Your Honor makes that ruling and I am 38 1 asking about a new subpoena which required production 2 Tuesday. This is a new matter. 3 JUDGE FACCIOLA: Disagreeing entirely with your 4 interpretation of my opinion, the assertion of privilege will 5 be sustained. 6 MR. KLAYMAN: Mr. Huang, you produced on Monday -- 7 Tuesday, rather, some documents and I asked you the question 8 if you were producing these documents for the first time. 9 I'll ask that they be marked as Exhibit 10, one 10 entitled "Building the American Dream for the 21st Century." 11 (Huang Deposition Exhibit No. 10 12 was marked for identification.) 13 JUDGE FACCIOLA: Somehow I got the originals. 14 Did you want to -- 15 MR. COBB: We intended to give you the originals, 16 Your Honor. 17 JUDGE FACCIOLA: Did you now want me to give them 18 to the reporter and let them be the copy that accompanies the 19 deposition? 20 MR. COBB: I think we would prefer that copies 21 be -- 22 JUDGE FACCIOLA: Then I'll keep the court record. 23 MR. COBB: Thank you, Your Honor. 24 MR. KLAYMAN: Exhibit 11, "Asia-Pacific Business 25 Outlook 1995." 39 1 (Huang Deposition Exhibit No. 11 2 was marked for identification.) 3 MR. KLAYMAN: Exhibit 12, "Export Programs January 4 1995." 5 (Huang Deposition Exhibit No. 12 6 was marked for identification.) 7 MR. KLAYMAN: Exhibit 13, "Competing to Win in a 8 Global Economy." 9 (Huang Deposition Exhibit No. 13 10 was marked for identification.) 11 MR. KLAYMAN: Exhibit 14, "National Export Strategy 12 Report to the United States Congress October 1994." 13 (Huang Deposition Exhibit No. 14 14 was marked for identification.) 15 MR. COBB: And the question is? 16 MR. KLAYMAN: I'll ask my question when I ask my 17 question, Mr. Cobb. 18 MR. COBB: I'm sorry, you were looking at him for a 19 response and -- 20 MR. KLAYMAN: And I'll proceed -- 21 JUDGE FACCIOLA: Hey. Let's get something 22 straight. I'm the judge. That kind of behavior will stop 23 right now. 24 MR. KLAYMAN: I agree, Your Honor. 25 MR. COBB: I apologize, Your Honor. 40 1 JUDGE FACCIOLA: Proceed. 2 BY MR. KLAYMAN: 3 Q Mr. Huang, Exhibits 10 through 14 -- 4 A Yes, sir? 5 Q Were these documents produced for the first time on 6 Tuesday in this case? 7 MR. COBB: Objection, Your Honor. 8 JUDGE FACCIOLA: Overruled. 9 THE WITNESS: Yes. 10 BY MR. KLAYMAN: 11 Q Where were these documents found in response to the 12 subpoena which is Exhibit A? 13 MR. COBB: Objection, Your Honor. 14 JUDGE FACCIOLA: The application of the privilege 15 will be sustained. 16 MR. KLAYMAN: Can I get a proffer on that, 17 Your Honor, or the basis for the ruling? 18 JUDGE FACCIOLA: The basis of the ruling is that 19 you're inquiring of this particular witness of the 20 circumstances of his search, whether he did so correctly or 21 incorrectly or whatever, and it seems to me it invokes the 22 subject to a serious risk of incrimination, given what Judge 23 Lamberth has already said about this. 24 MR. KLAYMAN: May I ask for reconsideration on the 25 following grounds. In the order of December 22nd, the Court 41 1 has empowered Judicial Watch as the plaintiff to ascertain 2 whether documents left the Department of Commerce and where 3 they may be. And the fact that certain documents left the 4 Department of Commerce, in this case, these are all public 5 documents, and to ascertain where they are now stored, 6 wouldn't incriminate him, at least with regard to these 7 public documents. 8 JUDGE FACCIOLA: We disagree. Asking questions 9 about this witness' search for the documents and production 10 directly implicates his Fifth Amendment rights because the 11 investigation of him, growing out Judge Lamberth's order or 12 otherwise, will focus directly on whether he was faithful to 13 the responsibility to search for or produce documents in 14 response to judicial orders. It's a direct relation between 15 the topic and possible incrimination. 16 BY MR. KLAYMAN: 17 Q Were these documents which I marked as Exhibits 10 18 through and including 14 produced by you, Mr. Huang? On 19 Tuesday? 20 MR. COBB: Objection, Your Honor. They were 21 produced by counsel. 22 JUDGE FACCIOLA: I'm sorry? 23 MR. COBB: Objection. They were produced by 24 counsel. 25 MR. KLAYMAN: I'm entitled to ask, Your Honor, 42 1 whether he produced them. 2 JUDGE FACCIOLA: Did you give them to your lawyer? 3 MR. COBB: Objection. 4 JUDGE FACCIOLA: Why? 5 MR. COBB: Assert the privilege. 6 JUDGE FACCIOLA: So you would assert the privilege 7 as well as to whether he gave them -- 8 MR. COBB: As to whether he had physical 9 possession. Correct. 10 JUDGE FACCIOLA: The assertion of the privilege 11 will be sustained. 12 MR. KLAYMAN: Let me ask Your Honor for a 13 clarification of that. Are we saying that this is an issue 14 of possession, custody or control? I just asked the question 15 of possession. 16 JUDGE FACCIOLA: May I commend your attention to a 17 recent decision in the 4th Circuit Court of Appeals in United 18 States v. Hubbell, which deals with the circumstances under 19 which enforced production pursuant to a subpoena invokes the 20 Fifth Amendment? It seems to me it is on all fours with this 21 situation. 22 Inquiring of a witness as to did he produce certain 23 documents, where he found them, when there is potentially an 24 investigation of the faithfulness of that witness to the 25 legal obligation to produce those very documents incriminates 43 1 him in my view in a most direct way. 2 MR. KLAYMAN: May I ask Your Honor to get a proffer 3 from counsel, if necessary, you can do it ex parte -- 4 JUDGE FACCIOLA: No. There is no need to. 5 MR. KLAYMAN: -- whether -- whether these documents 6 came from counsel's files and whether counsel's been 7 withholding these documents? 8 JUDGE FACCIOLA: No. 9 MR. KLAYMAN: The reason I ask for that is that one 10 can only assume under the circumstances that counsel may be 11 equally incriminated with Mr. Huang, in which case they 12 clearly have a conflict of interest. 13 JUDGE FACCIOLA: I make no such assumption. 14 MR. KLAYMAN: That's our position. 15 JUDGE FACCIOLA: So be it. 16 MR. COBB: Your Honor, if I might, just for the 17 record, I would like to object to Mr. Klayman's last 18 statement. 19 JUDGE FACCIOLA: Thank you, Mr. Cobb. 20 MR. COBB: Thank you. 21 MR. KLAYMAN: In response to that objection, 22 Your Honor, if there is no differentiation, even ex parte, 23 under seal with Your Honor as to who was holding these 24 documents, then that's the only conclusion one can reach. 25 JUDGE FACCIOLA: Mr. Klayman, the world can 44 1 construe by its wits. I, however, shall construe by the law. 2 Please ask your next question. 3 BY MR. KLAYMAN: 4 Q I showed you on Monday -- on Tuesday, rather, what 5 had been marked as Exhibit 1 to your first deposition. 6 That's the original subpoena of October 29, 1996. And I'll 7 ask whether you've ever seen this before, Mr. Huang. 8 MR. COBB: I'm sorry, this is -- 9 MR. KLAYMAN: It's Exhibit 1 to this deposition 10 which is continuing, but it was previously marked on 11 October 29, 1996. 12 MR. COBB: Objection. I would invoke the 13 privilege, Your Honor. 14 JUDGE FACCIOLA: Well, during the course of the 15 prior deposition, was the witness asked that question? 16 Ms. Braswell, you're shaking your head yes? 17 MS. BRASWELL: It's my understanding he was. 18 JUDGE FACCIOLA: Well, if he's merely asked to 19 repeat the answer, I see no risk of future incrimination. 20 It is my recollection, having read the deposition, he was as 21 well. Perhaps we could take a moment to see if that's in 22 there. 23 MR. COBB: Your Honor, if I might, on that point, I 24 do believe that mere repetition under the circumstances as 25 the case law, particularly Wilcox, makes plain does justify 45 1 the invocation. 2 JUDGE FACCIOLA: Well, let's see if we can find the 3 previous reference, Mr. Cobb, that way -- 4 MS. BRASWELL: Your Honor, it's on page 20 of the 5 deposition. The question was, "Mr. Huang, you previously 6 responded to the subpoena for your attendance on October 29, 7 1996. That subpoena was made Exhibit 1 to your prior 8 deposition, correct?" 9 JUDGE FACCIOLA: You already have his answer, 10 Mr. Klayman. Why don't you pose another question? 11 MR. KLAYMAN: Well, the reason, Your Honor, is 12 because at that point, the deposition was adjourned so 13 Your Honor could make a ruling on privilege. And the 14 situation is now different because Your Honor has made a 15 ruling and it's our view based upon your ruling that he can 16 respond to this question. In fact, you ordered him to 17 respond to another question dealing with the later subpoena, 18 Exhibit 8, which was identical. 19 MR. COBB: Well, the question that he responded to, 20 Your Honor, was whether he saw it marked as an exhibit -- saw 21 it on Tuesday when it was marked as an exhibit. 22 JUDGE FACCIOLA: The objection was sustained on 23 grounds it was asked and answered. Why don't you move on, 24 Mr. Klayman? You have your answer. He has seen the document 25 before. 46 1 MR. KLAYMAN: Well, I understand, Your Honor. I'm 2 asking for reconsideration. It was not answered because he 3 took the Fifth Amendment. 4 JUDGE FACCIOLA: When did he take the Fifth 5 Amendment? 6 MR. KLAYMAN: On Tuesday. 7 JUDGE FACCIOLA: Now you are asking him -- let's 8 begin again. What are you asking him? 9 MR. KLAYMAN: I'm asking him whether he's ever seen 10 Exhibit 1 before. That's just a foundation question. 11 JUDGE FACCIOLA: All right. What is Exhibit 1? 12 May I see it? 13 MR. KLAYMAN: That's the first subpoena. 14 JUDGE FACCIOLA: And our examination of the 15 deposition indicates that when he was asked that question on 16 the prior occasion, Ms. Braswell, he answered it without 17 asserting the privilege. 18 MS. BRASWELL: No. Your Honor, again, the question 19 was slightly different. He did assert the privilege in 20 response to the question. The specific question he was asked 21 about Exhibit 1 was, "Mr. Huang, you previously responded to 22 the subpoena for your attendance at October 29, 1996. That 23 subpoena was made Exhibit 1 to your prior deposition, 24 correct?" 25 So it appears he was being asked whether Exhibit -- 47 1 that subpoena was made Exhibit 1. Maybe Mr. Klayman is 2 asking a different question here. It's unclear. 3 JUDGE FACCIOLA: Is your question in any way 4 different, Mr. Klayman? 5 MR. KLAYMAN: Yes. I'm asking whether he had ever 6 seen the document before. That's a simple question. It 7 certainly doesn't incriminate anyone. 8 JUDGE FACCIOLA: All right. 9 And, Mr. Cobb, your view is that it does tend to 10 incriminate him. 11 MR. COBB: That's correct, Your Honor. 12 JUDGE FACCIOLA: Despite his prior answer, even 13 though it appears that the question and the answer are 14 identical. 15 MR. COBB: That's correct, Your Honor. 16 JUDGE FACCIOLA: And what is the basis for that? 17 MR. COBB: I invoke the -- 18 MS. BRASWELL: He invoked the privilege, 19 Your Honor. 20 MR. COBB: I did invoke the privilege -- 21 MS. BRASWELL: He did invoke the privilege. 22 MR. COBB: -- in response to that. 23 MS. BRASWELL: Yes. 24 JUDGE FACCIOLA: All right. So the situation we 25 are confronted with, when the question was asked the last 48 1 time, the witness did invoke the privilege. 2 MR. COBB: No, no, no. When it was asked Tuesday. 3 JUDGE FACCIOLA: When it was asked on Tuesday, he 4 invoked the privilege. 5 MR. COBB: Right. 6 JUDGE FACCIOLA: I guess the question I'm asking is 7 when his deposition was taken in October of last year, was 8 that question asked and answered? Because then you would 9 confront the question of whether it is new matter or merely 10 asking him to repeat something. The difference between Ellis 11 and Perkins. 12 MS. BRASWELL: I don't know the answer to that, 13 Your Honor. 14 JUDGE FACCIOLA: All right. Can you ascertain from 15 the 1996 deposition whether he was asked that question? 16 MS. BRASWELL: Your Honor, he was asked that 17 question -- I do know the answer. Page 6 of his deposition, 18 he was handed Exhibit 1, he was asked, "Have you seen this 19 document before, Mr. Huang?" He answered, "No." So if 20 that's the question Mr. Klayman is asking, it appears it was 21 asked at the last deposition. 22 JUDGE FACCIOLA: And then we are in a quite 23 different area, aren't we, Mr. Klayman? Now we're asking the 24 witness to answer the same question in hopes he will do so -- 25 with the possibility that he will do so and therefore perjure 49 1 himself. So I am going to have to sustain the application of 2 the privilege because it seems to me that's exactly what 3 Perkins talks about. 4 MR. KLAYMAN: The reason that wouldn't necessarily 5 implicate him in incriminating himself, Your Honor, is 6 because he may have seen it after the deposition. 7 JUDGE FACCIOLA: The application of the privilege 8 is sustained. 9 MR. KLAYMAN: Your Honor, reconsideration on the 10 basis that Judge Lamberth's order of April 9th requires him 11 to comply with both subpoenas. 12 JUDGE FACCIOLA: In a manner that is consistent 13 with the Fifth Amendment to the United States Constitution. 14 MR. KLAYMAN: If I may, Your Honor, how will the 15 Court be able to ascertain whether Mr. Huang is in contempt 16 of the subpoena unless I can ask the question as to whether 17 he's ever seen it or whether he knows of its contents at any 18 time? 19 JUDGE FACCIOLA: You will have to prove that as is 20 always true of anyone who confronts a Fifth Amendment 21 privilege. You will have to prove that in some other way 22 than his own mouth. That's what the Fifth Amendment is all 23 about. 24 BY MR. KLAYMAN: 25 Q Is there anyone other than yourself, Mr. Huang, who 50 1 would know whether or not you have ever seen Exhibit 1 2 before? 3 MR. COBB: Invokes the privilege, Your Honor. 4 JUDGE FACCIOLA: The application of the privilege 5 will be sustained. 6 BY MR. KLAYMAN: 7 Q Is there anyone who would know whether you have 8 ever seen Exhibit 8 before, which is the later subpoena? 9 MR. COBB: Invokes the privilege, Your Honor. 10 JUDGE FACCIOLA: The privilege will be sustained. 11 MR. COBB: Pardon me, Your Honor. Am I speaking 12 loud enough for the Court? 13 JUDGE FACCIOLA: Every once in a while your voice 14 drops down, Mr. Cobb, but, please, if you would -- 15 MR. COBB: I apologize. Thank you. 16 JUDGE FACCIOLA: Are you having trouble, Madam 17 Reporter? 18 (Pause.) 19 MR. KLAYMAN: Your Honor, I would like to just put 20 on the record right now a request so everybody can hear it, 21 we're all together, I don't know if the Court has time 22 tomorrow morning to take up on appeal these rulings, but 23 while Mr. Huang is in town, it appears to me that what we're 24 going to be able to get today is little to nothing; that we 25 are now proceeding with the deposition not even knowing 51 1 whether or not we have gotten documents which were ordered 2 produced as late as April 9, 1999; that this obviously is a 3 significant use of time and resource of both Your Honor, 4 which is very valuable, Judge Lamberth and the parties, and 5 therefore if Judge Lamberth has an opportunity, I leave it to 6 his discretion to review these matters overnight and to have 7 a hearing tomorrow morning and if he happens to rule that 8 these questions should be asked in whole or in part, that we 9 would like to be able to proceed tomorrow while we're all 10 here. 11 JUDGE FACCIOLA: Well, in his order of reference of 12 December 22, 1998 -- 13 MR. KLAYMAN: I'm not saying I won't continue to 14 ask questions now, but I'm just trying to get everybody 15 advised. 16 JUDGE FACCIOLA: So be it. I don't know, Mr. 17 Klayman. I cannot regulate whether you take appeals from my 18 orders. You wish to do whatever you wish to do. I am ready, 19 willing and able to stay here as long as I have to, subject 20 to stomach pains and picking up kids and other things, until 21 we finish this proceeding. We are all agreed, I thought, as 22 of yesterday, we have to agree because the law tells us to, 23 there is no other way to do this except on a question by 24 question basis. 25 MR. KLAYMAN: And I'm patient and I know you are 52 1 and -- 2 JUDGE FACCIOLA: So let us -- 3 MR. KLAYMAN: -- and I hope the other people are, 4 too. I just want to put everybody on notice, Judge 5 Lamberth's clerk who is sitting here, and I also wanted to 6 ask the court reporter if during the various breaks here 7 today you could have the transcript transcribed on an 8 expedited basis as we go along. I would ask Your Honor when 9 we take a break if the court reporter could call her office, 10 they could pick up the tape. 11 JUDGE FACCIOLA: I would prefer we continue and try 12 to get our job done. I can't do things at once, Mr. Klayman. 13 I can't preside over the deposition and worry about all the 14 things you want to do, to take appeals. That's your problem; 15 it's not mine. Let us continue. 16 MR. KLAYMAN: Can I perhaps in 20 minutes ask for a 17 break so the court reporter can call her house and -- 18 JUDGE FACCIOLA: Certainly. 19 MR. KLAYMAN: -- and they can start transcribing? 20 JUDGE FACCIOLA: In fact, do you guys want to break 21 right now? 22 MR. KLAYMAN: That's fine. 23 JUDGE FACCIOLA: Did you want a break? 24 MR. KLAYMAN: Thank you. 25 MR. COBB: Thank you, Your Honor. 53 1 (A brief recess was taken.) 2 VIDEOGRAPHER: We're back on video record at 11:20. 3 BY MR. KLAYMAN: 4 Q Mr. Huang, since early October of 1996, have you 5 spoken with anyone from the U.S. Department of Justice? 6 MR. COBB: Objection, Your Honor. 7 JUDGE FACCIOLA: The application of the privilege 8 will be sustained. 9 MR. KLAYMAN: May I get a proffer, Your Honor, as 10 to why that would be objectionable? 11 JUDGE FACCIOLA: Because that discussion could have 12 had reference to his potential prosecution, the discussion 13 could have communicated an officer to him from the United 14 States. All of those matters are matters that deal directly 15 with whether or not he will be subject to criminal liability. 16 MR. KLAYMAN: Your Honor, Mr. Cobb himself gave an 17 interview in 1997, October 1997, where he was asked -- it was 18 on Fox; the name of the show was "John Huang in His Own 19 Words" -- whether his client had been approached or had any 20 communications with the U.S. Department of Justice, and he 21 said no. Can I at least go that far? 22 JUDGE FACCIOLA: The problem is, I don't think they 23 are going to indict Mr. Cobb. They would indict Mr. Huang. 24 He's the guy with the privilege. 25 MR. KLAYMAN: Well, what I'm saying is, I mean, 54 1 they've been discussing this, but I can't ask the question at 2 deposition? 3 JUDGE FACCIOLA: Exactly right, that's what the 4 Fifth Amendment is all about. 5 MR. KLAYMAN: And the other aspect of that is, I'm 6 not asking what was said. I'm just asking whether he's had 7 contact. 8 JUDGE FACCIOLA: I appreciate that, but I've heard 9 the answer, and I sustain the application of the privilege. 10 MR. COBB: In addition, Your Honor, just for the 11 record, I have a scope objection. 12 JUDGE FACCIOLA: I understand. 13 BY MR. KLAYMAN: 14 Q Have you ever been contacted, Mr. Huang, since 15 leaving the Department of Commerce, by the Commerce 16 Department's inspector general? 17 MR. COBB: Again, Your Honor. 18 JUDGE FACCIOLA: I will sustain the application of 19 the privilege. 20 BY MR. KLAYMAN: 21 Q Have you ever been contacted since leaving the 22 Department of Commerce by the Senate Governmental Affairs 23 Committee with regard to its campaign finance investigation? 24 MR. COBB: Again, Your Honor. 25 JUDGE FACCIOLA: I sustain the application of the 55 1 privilege. 2 BY MR. KLAYMAN: 3 Q Have you ever been contacted by the Government 4 Reform and Oversight Committee of the U.S. House of 5 Representatives with regard to its campaign finance 6 investigation? 7 MR. COBB: Again, Your Honor. 8 JUDGE FACCIOLA: I sustain the application of the 9 privilege. 10 BY MR. KLAYMAN: 11 Q Have you ever had contact with or had any 12 discussions with any independent counsel of the United States 13 Department of Justice with regard to matters involving 14 campaign finance for a controversy known as Chinagate? 15 MR. COBB: Again, Your Honor. 16 JUDGE FACCIOLA: I sustain the application of the 17 privilege. 18 BY MR. KLAYMAN: 19 Q Have you ever been contacted since early October of 20 1996 by any press organizations and provided responses? 21 MR. COBB: Again, Your Honor. 22 JUDGE FACCIOLA: Let's go off the record. 23 (A discussion was held off the record from 11:23 to 24 11:26 a.m.) 25 VIDEOGRAPHER: We're back on video record at 11:26. 56 1 MR. COBB: Can we have the question? 2 THE WITNESS: Can I have the question one more 3 time, please, Your Honor? 4 JUDGE FACCIOLA: The question, I believe, was 5 whether you've had any "contact" with any press organizations 6 since your deposition in October of 1996. 7 MR. KLAYMAN: Actually, it's slightly different, 8 Your Honor. 9 JUDGE FACCIOLA: Okay, you phrase it. 10 MR. KLAYMAN: Let me phrase it. 11 BY MR. KLAYMAN: 12 Q Have you had any contact with any press 13 organizations since October 1st of 1996? 14 MR. COBB: Yes or no. 15 THE WITNESS: Yes. 16 BY MR. KLAYMAN: 17 Q Who have you had contact with? 18 MR. COBB: Objection, Your Honor. 19 JUDGE FACCIOLA: What is the relevance of that line 20 of inquiry, Mr. Klayman? 21 MR. KLAYMAN: Can I sequester Mr. Huang for a 22 second? 23 JUDGE FACCIOLA: Mr. Huang, step out. Go with your 24 counsel. 25 THE WITNESS: Okay. 57 1 MR. COBB: Do we have to leave, as well? 2 JUDGE FACCIOLA: Yes. 3 MR. COBB: I will take him. 4 JUDGE FACCIOLA: And I'll try to structure this 5 when you get back. 6 (The witness and counsel left the deposition room.) 7 MR. KLAYMAN: Thank you, Your Honor. We have 8 certain communications that were sent to John Huang and were 9 responded to by John Huang with regard to press inquiries, 10 and the press inquiries deal, in large part, with the trade 11 missions that are the subject of this case. 12 JUDGE FACCIOLA: Okay. Now, Ms. Braswell? 13 MS. BRASWELL: Your Honor, it's way beyond the 14 scope of discovery in this case. 15 The whole issue of discovery in this case is what 16 documents have been produced to Judicial Watch, and he is 17 entitled to ask Mr. Huang any documents that perhaps he took 18 when he left the Department of Commerce or whether or not he 19 destroyed any documents. I see no relevance to this line of 20 questioning whatsoever. 21 JUDGE FACCIOLA: Ask counsel to return. 22 MR. KLAYMAN: Well, here's the relevance, Your 23 Honor. 24 JUDGE FACCIOLA: Hold on. 25 MR. KLAYMAN: Okay. Here's a document which I'll 58 1 ask be marked as Exhibit 15. It's an inquiry to John Huang, 2 "Answers of John Huang to Questions Posed by Wall Street 3 Journal." 4 (Huang Deposition Exhibit No. 15 5 was marked for identification.) 6 MR. KLAYMAN: It deals specifically with trade 7 missions that are the subject of this case, and he's giving 8 responses, and obviously, we have to know his activities to 9 be able to determine whether any documents have been 10 generated. It not only bears with the underlying 11 documentation, but compliance with the Court's orders. 12 JUDGE FACCIOLA: Let's get him back in here and 13 pose your question, and I'll rule on your relevancy objection 14 when I hear the actual questions. 15 MS. BRASWELL: Okay. 16 JUDGE FACCIOLA: Would you ask counsel to come 17 back? Thank you. 18 (The witness and counsel returned to the deposition 19 room.) 20 JUDGE FACCIOLA: Your question, sir? 21 BY MR. KLAYMAN: 22 Q Mr. Huang, Exhibit 15 is a document, a letter from 23 the Wall Street Journal of October 4, 1996, to Mr. John 24 Huang. It contains a number of questions. 25 The questions are posed by Glenn R. Simpson of the 59 1 Wall Street Journal, copy to David Eichenbaum, and attached 2 to it are "Answers of John Huang to Questions Posed by Wall 3 Street Journal." 4 Do you remember seeing this document before? 5 MR. COBB: Objection, and invoke the privilege. 6 JUDGE FACCIOLA: The privilege will be sustained. 7 MR. KLAYMAN: What is the basis of sustaining that? 8 JUDGE FACCIOLA: It is the Perkins case. It's 9 identical to the Perkins case. You're asking a witness 10 whether a previous document -- if he acknowledges that he 11 gave this document, the document becomes an admission which 12 can be used to incriminate him. That is the Perkins case. 13 BY MR. KLAYMAN: 14 Q Mr. Huang, On October 4, 1996, you worked for the 15 Democratic National Committee, correct? 16 MR. COBB: Objection. 17 JUDGE FACCIOLA: Application of the privilege will 18 be sustained. 19 MR. KLAYMAN: Is Your Honor saying that any 20 employer he's ever worked for would throw him within the 21 privilege? 22 JUDGE FACCIOLA: I am ruling on that question. You 23 can ask other questions, and I'll rule on them as they arise. 24 You've got enough problems today, Mr. Klayman, without 25 commenting on questions that I haven't yet ruled on. 60 1 MR. KLAYMAN: Well, the reason I asked for 2 reconsideration, Your Honor, is because I don't see how 3 having worked for someone, which is a matter of public 4 record, would incriminate him. 5 JUDGE FACCIOLA: Mr. Klayman, let me see if I can 6 explain something to you. The Fifth Amendment of the United 7 States doesn't draw any distinction between what is public 8 and what is private. 9 If the question before -- the inquiry was whether 10 or not, during the particular time, an assistant United 11 States attorney took bribes, and a prosecutor from the grand 12 jury asked that assistant United States attorney, "Is it 13 true, sir, that in the period of 1992 to 1996, you worked for 14 United States Attorney's Office," the claim of the privilege 15 would have to be sustained, because it is a link in the chain 16 of the Government's prosecution of bribery. 17 The fact that objective reality may prove that this 18 man did a certain thing, or didn't do a certain thing, worked 19 for a certain corporation or didn't work for a certain 20 corporation has nothing to do with whether you can force him 21 to admit the truth of that fact by his own testimony. 22 Historically, that's where the Fifth Amendment 23 privilege comes from. What you just did was a pristine 24 example of the Fifth Amendment. 25 MR. KLAYMAN: Your Honor, if I may respond to that 61 1 for the purposes of asking for reconsideration? 2 JUDGE FACCIOLA: Yes, go ahead. 3 MR. KLAYMAN: This case concerns whether or not he 4 produced certain documents and gave truthful testimony with 5 regard to FOIA requests filed at the U.S. Department of 6 Commerce. 7 It would not have mattered who he was working for 8 in terms of his disobeyance, as alleged, of court orders in 9 this case, or with regard to prior testimony. He, himself 10 has stated, both at deposition, prior deposition, and 11 publicly, that he worked for the Democratic National 12 Committee. 13 Now, I would like to them ask him this question: 14 does he claim that simply acknowledging what he has testified 15 to at his prior deposition would incriminate him? 16 JUDGE FACCIOLA: He doesn't have to answer that 17 question, because he is not obliged to explain the reason for 18 his assertion of the privilege if the reason for the 19 assertion of the privilege is otherwise self-evident. 20 MR. KLAYMAN: So you're standing by your ruling? 21 JUDGE FACCIOLA: Yes. 22 MR. KLAYMAN: Okay. And let me just say for the 23 record, that's not the only area of relevance of this case, 24 but for the contents of this question, I just wanted to use 25 that as an example. 62 1 JUDGE FACCIOLA: Very good. 2 BY MR. KLAYMAN: 3 Q I to your attention to the last two pages of this 4 document, 106 and 107, and ask you, Mr. Huang, if you were 5 the one who prepared the answers to the questions posed by 6 Mr. Simpson of the Wall Street Journal, as reflected on these 7 two pages. 8 MR. COBB: Objection, invoke the privilege. 9 JUDGE FACCIOLA: Sustained. 10 MR. COBB: I apologize for interrupting, Mr. 11 Klayman. I thought you were finished. 12 MR. KLAYMAN: Thank you. 13 BY MR. KLAYMAN: 14 Q Are these answers correct? 15 MR. COBB: Objection and -- 16 BY MR. KLAYMAN: 17 Q You can read it, if you like. 18 MR. COBB: -- invoke the privilege, Your Honor. 19 JUDGE FACCIOLA: The invocation of the privilege 20 will be sustained. 21 MR. KLAYMAN: When Your Honor reconsidered his 22 ruling with regard to the press, were you also opening up the 23 questions that I asked previous to that, whether he had been 24 contacted by the Justice Department? 25 JUDGE FACCIOLA: I'm trying not to rule 63 1 hypothetically. Why don't you pose a question, Mr. Klayman? 2 BY MR. KLAYMAN: 3 Q Were you ever contacted by the Justice Department 4 after October 1, 1996? 5 MR. COBB: Invoke the privilege. 6 MS. BRASWELL: Objection. 7 JUDGE FACCIOLA: On those questions, I will sustain 8 the application of the privilege. 9 MR. KLAYMAN: On that whole line of questioning? 10 JUDGE FACCIOLA: That's right. 11 MR. KLAYMAN: I will show you what I'll ask the 12 court reporter to mark as Exhibit 16. 13 (Huang Deposition Exhibit No. 16 14 was marked for identification.) 15 MS. BRASWELL: May I have a copy, please? 16 MR. KLAYMAN: It wasn't intentional. Your Honor, 17 we're trying to be a little more civil here. 18 JUDGE FACCIOLA: Civility is a grace. 19 MR. KLAYMAN: I agree. 20 MR. KEENEY: Please, Mr. Klayman, could I also have 21 a copy? 22 MR. KLAYMAN: I gave one to your counsel. If I 23 have extras, I will. I don't know that I always will have 24 extras. 25 MR. KEENEY: Thank you. I appreciate it. 64 1 MR. COBB: I don't represent Mr. Keeney in this 2 case. 3 MR. KLAYMAN: I won't respond to that. 4 (The witness examined the document.) 5 BY MR. KLAYMAN: 6 Q Have you seen this document before, Mr. Huang? 7 MR. COBB: Can we have a minute, Your Honor? 8 JUDGE FACCIOLA: I can't hear you, Mr. Cobb. 9 MR. COBB: Can I have a minute with my client? 10 JUDGE FACCIOLA: Of course. 11 MR. COBB: Can we go in there? 12 MR. KLAYMAN: Your Honor, I would like to get an 13 unfettered response. 14 JUDGE FACCIOLA: You just want to talk to your 15 client, or do you want to talk to me? 16 MR. COBB: I want to talk to my client. 17 JUDGE FACCIOLA: Please do so. 18 MR. COBB: Thank you, Your Honor. 19 MS. BRASWELL: Your Honor, I'd like to raise an 20 objection to the relevance. 21 JUDGE FACCIOLA: Let him talk to his client, and 22 when we get back, I'll hear your objection. 23 MS. BRASWELL: Okay. 24 VIDEOGRAPHER: We are going off video record at 25 11:36. 65 1 (A brief recess was taken.) 2 JUDGE FACCIOLA: Back on the record. 3 VIDEOGRAPHER: We're back on video record at 11:37. 4 MR. COBB: Your Honor, if I might clarify for the 5 Court? 6 JUDGE FACCIOLA: Surely. 7 MR. COBB: The purpose of my request to consult 8 with my client is to ensure that we're appropriately invoking 9 the privilege, and we do not do so in response to this 10 question. 11 JUDGE FACCIOLA: I understand. 12 MS. BRASWELL: Your Honor, I however raise our 13 objection in response to this question, that this appears to 14 be beyond the scope of the permitted discovery in this case. 15 JUDGE FACCIOLA: Mr. Cobb is asserting the 16 privilege? 17 MR. COBB: No, I said I'm not asserting the 18 privilege in connection -- 19 JUDGE FACCIOLA: Would you repeat the question, Mr. 20 Klayman? 21 BY MR. KLAYMAN: 22 Q Have you ever seen the document before? 23 JUDGE FACCIOLA: And your objection was? 24 MS. BRASWELL: Your Honor, this document, which is 25 a November 1996 document, which is almost two years after the 66 1 last FOIA request that's at issue in this case, has no 2 relevance with the permitted discovery in this case. 3 MR. KLAYMAN: Perhaps Ms. Braswell didn't read it, 4 but I would to your attention to, at a minimum, paragraph 2 5 of page 2. 6 MS. BRASWELL: Your Honor, paragraph 2 of page 2 7 apparently concerns the circumstances regarding Mr. Huang 8 appearing at the deposition in October of 1996. Mr. Huang 9 was asked a whole series of questions at that deposition 10 regarding the circumstances of his accepting a subpoena at 11 that time. 12 There has been no permitted discovery into the 13 circumstances surrounding him attending the October 1996 14 deposition. 15 MR. KLAYMAN: Your Honor, this obviously deals with 16 misconduct in this case. That was a part of Judge Lamberth's 17 order of December 22nd. We're allowed to take discovery on 18 that. 19 MS. BRASWELL: No, Your Honor. The misconduct in 20 this case which he is allowed to take discovery on deals with 21 documents, whether or not documents were removed from the 22 Department of Commerce or whether or not documents have been 23 destroyed. 24 MR. KLAYMAN: Well, I don't want to telegraph what 25 my questions are here in front of Ms. Braswell but, as a 67 1 lawyer, I think she can probably understand what they are. 2 I'm also curious as to why she's asserting this 3 objection. Are you asserting it on behalf of the White House 4 or the Department of Commerce? 5 MS. BRASWELL: The Department of Commerce, as you 6 well know, Mr. Klayman, is my client. That's who I am 7 asserting it on behalf of. 8 MR. KLAYMAN: Because this deals with people at the 9 White House, and I shouldn't see that you have a problem if 10 this is nothing I got into during the first deposition. 11 MS. BRASWELL: I am asserting -- 12 JUDGE FACCIOLA: Let me see if I understand 13 something, Ms. Braswell. 14 Judge Lamberth's December 22, 1998, order speaks of 15 a lot of topics, various things that concern him. The first 16 couple of paragraphs -- 17 MR. KLAYMAN: Your Honor, can I ask that we 18 sequester Mr. Huang during this discussion? 19 JUDGE FACCIOLA: No, there's no need to. He can 20 hear this. I was in the middle of a thought. 21 MR. KLAYMAN: I apologize. 22 JUDGE FACCIOLA: Yeah. All right. 23 In December, that order comes out. We're all 24 agreed the first few pages of it deal with the efforts of Mr. 25 Huang to evade the service of process. Is that not a 68 1 legitimate topic of inquiry pursuant to Judge Lambert's 2 order? 3 MS. BRASWELL: No, Your Honor. Judge Lamberth 4 doesn't say that discovery may go into that area. In fact, 5 as I indicated, there was a whole series of questions at the 6 October 1996 deposition regarding this. Judge Lamberth 7 simply expressed his displeasure over what he perceived had 8 occurred with respect to that deposition. 9 Nowhere in the December order does he say the 10 discovery will continue regarding this episode that has been 11 discussed and questioned at length in this case. 12 MR. KLAYMAN: Your Honor, if I may, as late as 13 April 9th, Judge Lamberth issued an order where he made 14 reference, specifically in the context of Mr. Huang's 15 deposition, to that conduct. 16 MS. BRASWELL: He didn't -- 17 JUDGE FACCIOLA: I believe a fair interpretation of 18 Judge Lambert's orders, of the April 9th order and the 19 December 22nd order, is that he intended to express his 20 disgust -- and I don't think that's too strong a word -- at 21 the circumstances surrounding Mr. Huang's not coming to the 22 deposition as required. 23 I do agree with Ms. Braswell, however, that I don't 24 think a fair interpretation is intended to permit additional 25 discovery into those circumstances. Therefore, I will 69 1 sustain the Government's objection to the relevance of the 2 question. 3 MR. KLAYMAN: Let me ask for reconsideration here, 4 because the very fact that Mr. Huang has reflected in this 5 document has had representations made by or on his behalf 6 through the White House, the fact that he's testified that he 7 did have contact with the White House during the period that 8 U.S. Marshals were looking for him, the very fact that we 9 have correspondence in this case that's a matter of record 10 between the Department of Commerce and the White House, 11 however few documents were produced, and the very fact that 12 we have testimony on the record from Nolanda Hill that the 13 sale of trade missions -- Nolanda Hill being the close 14 confidante and business partner of Ron Brown, Secretary of 15 Commerce -- that in fact, the sale of seats on trade missions 16 were orchestrated and devised by Hillary Clinton with the 17 knowledge and approval of the President, that Leon Panetta 18 and John Podesta -- Leon Panetta being White House Chief of 19 Staff, John Podesta being deputy at the time -- advised 20 Secretary Brown, who was the Secretary of Commerce, not to 21 produce documents in violation of Judge Lambert's orders -- I 22 don't want to go on too far here, but that's enough, in and 23 of itself, to allow me to ask questions here, because the 24 fundamental basis of the December 22, 1998 orders were to 25 find out where those documents are. 70 1 JUDGE FACCIOLA: I persist in my ruling. You may 2 ask your next question. 3 MR. KLAYMAN: I.e., are they located at the White 4 House? 5 JUDGE FACCIOLA: Ask you question, Mr. Klayman. 6 BY MR. KLAYMAN: 7 Q I believe there's a question pending. Exhibit 16, 8 have you seen this document before? 9 MS. BRASWELL: Your Honor, I raised an objection to 10 this, to the relevance. 11 JUDGE FACCIOLA: Sustained. The objection has been 12 sustained. 13 MR. KLAYMAN: On grounds of relevancy? 14 JUDGE FACCIOLA: Exactly. 15 MR. KLAYMAN: Your Honor, it's my understanding 16 that a deposition is that which is relevant or which may lead 17 to relevant evidence. We're not in a trial situation here. 18 JUDGE FACCIOLA: I'm well aware of the discovery 19 standard, and I have applied it as best I can. I sustain the 20 objection. 21 MS. BRASWELL: Your Honor, to make it clear, I 22 raised the objection that it goes beyond the scope of 23 permissible discovery in this case. If I used the word 24 "relevancy" I apologize, but that's what I meant. 25 JUDGE FACCIOLA: I understand. That's how I 71 1 understood you, Ms. Braswell. Thank you for the 2 clarification. 3 MR. KLAYMAN: May I read into the record, just for 4 the record, Your Honor, the paragraph that I was referring 5 to? 6 JUDGE FACCIOLA: Have you admitted the document 7 into evidence? Did you want to make it simply an exhibit to 8 the deposition for the purposes of review later on? 9 MR. KLAYMAN: It's my understanding that at 10 deposition I'm not asking Your Honor to admit anything in 11 evidence. I'm just marking it for purposes of the 12 deposition. 13 JUDGE FACCIOLA: All right. So then if it's marked 14 for the purposes of the deposition, and you wish to make it 15 available to Judge Lamberth, we can incorporate it by 16 reference. There's no need to read it. Let's move on. 17 BY MR. KLAYMAN: 18 Q Have you ever received notification that you're a 19 target of a federal or state investigation? 20 MR. COBB: Objection, Your Honor. 21 JUDGE FACCIOLA: Application of the privilege will 22 be sustained. 23 BY MR. KLAYMAN: 24 Q Have you ever received notification of any kind 25 that you were a subject of a federal or state investigation? 72 1 MR. COBB: Invocation, Your Honor. 2 JUDGE FACCIOLA: It will be sustained. 3 BY MR. KLAYMAN: 4 Q Has anyone ever told you in writing or orally that 5 you are in danger of prosecution? 6 MR. COBB: Invocation, Your Honor. 7 JUDGE FACCIOLA: It will be sustained. 8 BY MR. KLAYMAN: 9 Q Since the date of your last deposition, October 29, 10 1996, excluding your counsel at Hogan & Hartson, have you 11 discussed this lawsuit, brought by Judicial Watch against the 12 U.S. Department of Commerce, with anyone? 13 MR. COBB: Objection, Your Honor. 14 JUDGE FACCIOLA: Invocation of the privilege will 15 be sustained. 16 MR. KLAYMAN: Your Honor, how would just a general 17 identification as to whether he's discussed it with anyone 18 incriminate him? I haven't even identified who it would be 19 that he discussed it with? 20 JUDGE FACCIOLA: Because there is a possibility 21 hanging over this witness's head, by virtue of what Judge 22 Lamberth has already decided, that his testimony, prior 23 testimony was perjurious, his admission that he had any 24 discussions with anyone might tend to expose him to 25 incrimination for obstruction of justice or for perjury. 73 1 BY MR. KLAYMAN: 2 Q Let me ask, then, this way. From the date of your 3 last deposition on October 29th -- not that I'm agreeing with 4 Your Honor's ruling, with all due respect, but I'm just 5 trying to tailor it to it -- from October 29, 1996 up to and 6 including December 21, 1998, the day prior to Judge Lamberth 7 issuing his order denying the Clinton Administration's motion 8 for summary judgment, did you ever have any discussions with 9 anyone concerning this case, other than your counsel? 10 MR. COBB: Your Honor, I'm not sure that 11 sufficiently -- I'm not sure that modifies in any respect the 12 Fifth Amendment applicability to the previous question. 13 JUDGE FACCIOLA: I still believe the privilege 14 applies, and I will sustain its application. 15 BY MR. KLAYMAN: 16 Q Mr. Huang, do you currently reside in Glendale, 17 California? 18 MR. COBB: Again, Your Honor, invoke the privilege. 19 JUDGE FACCIOLA: Let's go outside. 20 (A discussion was held off the record at 11:47 21 a.m.) 22 JUDGE FACCIOLA: Counsel have authorized me and 23 permitted me to tell you that the reason for their objection 24 is that in any criminal offense, venue must be proven beyond 25 a reasonable doubt. They therefore object to the defendant 74 1 giving testimony on the grounds that it's barred by the Fifth 2 Amendment. I will sustain the application of the privilege 3 on that ground. 4 BY MR. KLAYMAN: 5 Q Let me change the word "reside" to "live." 6 JUDGE FACCIOLA: That's academic. There's no 7 difference whatsoever. 8 BY MR. KLAYMAN: 9 Q Are you spending most of your time in Glendale, 10 California? 11 MR. COBB: Again, Your Honor. 12 JUDGE FACCIOLA: The application of the privilege 13 will be sustained. 14 MR. KLAYMAN: The reason I'm asking -- 15 VIDEOGRAPHER: Please, we're not on video record. 16 Stand by. Stand by. We're back on video record at 11:49. 17 JUDGE FACCIOLA: During the time when we were not 18 on video record, the questions with reference to whether (a), 19 the witness resides in Glendale, or (b), lives in Glendale 20 were sustained after counsel advised me that venue is a 21 necessary element of the Government's case, and therefore an 22 admission by the witness might tend to incriminate him. 23 MR. KLAYMAN: Let me ask the question this way. 24 BY MR. KLAYMAN: 25 Q Since your last deposition on October 29, 1996, 75 1 what states of the United States, if any, have you been in 2 for a day or more? 3 MR. COBB: Invocation, Your Honor. 4 JUDGE FACCIOLA: I'm going to sustain the 5 application of the privilege, and I'm also going to find that 6 that question is patently irrelevant. 7 MR. KLAYMAN: The reason it's not irrelevant, Your 8