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. Tuesday, April 13, 1999 Deposition of JOHN HUANG a witness of lawful age, taken on behalf of the Plaintiff in the above-entitled action, before Amy K. Rose, 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 10:10 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 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 15 HUANG DEPOSITION EXHIBITS: No. 8 Subpoena and Notice of Deposition 23 * * * * * 4 1 P R O C E E D I N G S 2 VIDEOGRAPHER: Good morning. This is the video 3 deposition of John Huang taken by the counsel for the 4 plaintiff in the matter of Judicial Watch, Inc. versus U.S. 5 Department of Commerce, Case No. 95-0133 in the U.S. District 6 Court, District of Columbia, held in the offices of Judge 7 John Facciola, at the U.S. -- in his chambers on this date, 8 April 13th, 1999, and at the time indicated on the video 9 screen which is 10:10 a.m. 10 My name is Sylvanius Holley, I'm the videographer. 11 The court reporter today is Amy Rose from the firm of 12 Diversified Reporting Services. 13 Will counsel introduce themselves? 14 MR. COBB: Ty Cobb and Jack Keeney from Hogan and 15 Hartson on behalf of the deponent, Mr. Huang. 16 MS. BRASWELL: Marina Braswell attorney for the 17 Department of Commerce. 18 MS. PACKARD: Elise Packard, Office of the General 19 Counsel, Department of Commerce. 20 MR. FITTON: Tom Fitton, President, Judicial Watch. 21 MR. KLAYMAN: Larry Klayman, Chairman and General 22 Counsel of Judicial Watch. 23 JUDGE FACCIOLA: Good morning. This is -- we'll 24 have to proceed in the following fashion. Last night at 5:26 25 there was filed a certain document called John Huang's Motion 5 1 to Quash Unserved 1999 an Invalid 1996 Subpoena. 2 I have reviewed that document and the last argument 3 in it is that by virtue of the filing of a notice of appeal 4 of Judge Lamberth's decision of December 22nd, 1998, the 5 District Court lacks jurisdiction over the subject matter 6 and, therefore, this matter before me this morning may not 7 proceed. 8 I will hear argument about that immediately. We 9 will then recess so that I can consult with Judge Lamberth 10 about that argument. I will then return and provide you his 11 ruling, either his ruling or my ruling. Let me go in the 12 following order, Mr. Keeney, I have your arguments. 13 MR. KEENEY: Yes, Your Honor. 14 JUDGE FACCIOLA: The question I have is assuming -- 15 what is your position with reference to the deposition going 16 forward today. May this deposition go forward today? 17 MR. KEENEY: Your Honor, I believe this court and 18 Judge Lamberth have no jurisdiction. I believe the 19 deposition cannot go forward and we need to have a ruling on 20 that point pretty much today, Your Honor. I mean, we're here 21 and I want -- Judge Lamberth and you obviously know our 22 witness is here but we believe that this proceeding cannot go 23 forward. This court and the District Court has no 24 jurisdiction for the reasons we stated. 25 JUDGE FACCIOLA: Now, Ms. Braswell, I appreciate 6 1 that you've only had this for less than 12 hours and I don't 2 know if you have had a chance to read Griggs versus the power 3 company or United States versus De Fries. I am familiar with 4 that authority from another case that has been before me. 5 But at the risk of sort of jumping on you without much time 6 for preparation, have you given any thought to this question 7 Mr. Keeney raises? 8 MS. BRASWELL: We have, Your Honor, and we are not 9 sure we agree with that, with his position. And the reason 10 being is that as the court well knows in FOIA cases when 11 there is an order issued to disclose documents and that order 12 is appealed that the Government routinely files a motion to 13 stay. 14 Those motions to stay would be unnecessary if in 15 fact a notice of appeal automatically stayed the order to 16 disclose. Therefore, we do not believe in the short time 17 we've had to look at this issue that it is correct that a 18 notice of appeal by itself stays or divests District Court of 19 all jurisdiction over that issue. 20 JUDGE FACCIOLA: Well, it's certainly true, Ms. 21 Braswell, that despite the notice of appeal that you filed on 22 February 22nd, 1999, you have of course consented to other 23 depositions that have been held in this case. 24 MS. BRASWELL: That's correct. 25 JUDGE FACCIOLA: So obviously, your position -- you 7 1 never argued at that point that the notice of appeal divested 2 jurisdiction. 3 MS. BRASWELL: That's correct. 4 JUDGE FACCIOLA: And it is the present view of the 5 Department of Commerce that all discovery in this case may 6 proceed? 7 MS. BRASWELL: That is our present view, Your 8 Honor. 9 JUDGE FACCIOLA: When you say "present view," are 10 you hedging your bets? 11 MS. BRASWELL: Well, in light of what has been 12 raised by Mr. Huang's attorneys, obviously we'd like to look 13 into the issue further. So I'm giving you our best position 14 based on having this issue raised late last evening. 15 JUDGE FACCIOLA: But would you join in Mr. Keeney's 16 objection today to going forward? 17 MS. BRASWELL: No. 18 JUDGE FACCIOLA: You will go forward? 19 MS. BRASWELL: We will go forward, yes. It is our 20 position it can go forward. 21 JUDGE FACCIOLA: Mr. Klayman? 22 MR. KLAYMAN: Your Honor, I note at the outset that 23 this motion was filed at the 11th hour. The issue of Mr. 24 Huang's deposition has been before this court for several 25 weeks if not since last December 22nd, 1998. This is an 8 1 attempt in our view just simply to attempt to throw a monkey 2 wrench into this procedure. 3 In fact, when I talked with Mr. Keeney yesterday he 4 did not express -- correct me if I'm wrong -- an interest in 5 arguing this. He said he was filing it for purposes of 6 appeal. I don't know if that's his position today. 7 In any event, the notice of appeal that was filed 8 by the Clinton Administration does not conform with Rule 9 54(B). There's been no certification that an interlocutory 10 order can go up on appeal. I have a bench brief on that 11 issue I'll be happy to give you a copy. We prepared it last 12 night and Judicial Watch will be moving the appellate court 13 to dismiss that notice of appeal this week. 14 MR. COBB: Your Honor, not to complicate things, if 15 I might, Ty Cobb on behalf of Mr. Huang, and very briefly, 16 that the motion was filed on the first business day following 17 the order that required it. 18 The second point I would make is that I find Mr. 19 Klayman's reliance on a technical argument about a rule 20 intriguing in light of the fact that that is precisely the 21 basis of many of our procedural objections. But as a matter 22 of law, I do believe it is clear given the breadth of the 23 order that is currently on appeal that there is no 24 jurisdiction. 25 JUDGE FACCIOLA: Well, then what do you make of Mr. 9 1 Klayman's argument that in the absence of a certification 2 under 54(B) the order is interlocutory. 3 Now, Mr. Cobb and Mr. Keeney, I am familiar with 4 the authority, particularly it comes back to me, a case by 5 Judge Ward in the Southern District of New York, and as I 6 understand Judge Ward's analysis, it was that if the 7 appellant has taken an appeal that is clearly interlocutory, 8 and over which the Circuit Court of Appeals, over a lack of 9 jurisdiction, that should not be an impediment to the 10 District Court exercising its jurisdiction, lest that be done 11 in the ordinary course to bring about a divestiture that is 12 not permitted as a matter of law. 13 In other words, there should not be a manipulation 14 of the two processes so that the District Court is disabled 15 by the fact that appellant has taken an appeal which is 16 interlocutory and over which the Court of Appeals lacks 17 jurisdiction over the subject matter. 18 MR. COBB: I couldn't agree more. The distinction, 19 of course, between that case and this is that, you know, it's 20 the party that took the appeal, it's the third party deponent 21 who has raised the jurisdictional issue. So the basis for 22 manipulation is absent. 23 The second point I would make is, the breadth of 24 the order is such that I would argue that it's not clearly 25 interlocutory, that there are affirmative, injunctive 10 1 obligations on the Government that I believe are clearly 2 subject to appeal. 3 JUDGE FACCIOLA: But you appreciate that the 4 Government has conducted discovery in this case and never 5 raised the argument in the depositions that have been taken 6 since December 22nd, 1998? 7 MR. COBB: I appreciate the fact that the 8 Government wants to do absolutely nothing that could possibly 9 offend Judge Lamberth in this proceeding and that they have 10 consented to the subsequent discovery. 11 JUDGE FACCIOLA: But under Mr. Klayman's argument 12 the obligation would have been for Ms. Braswell to seek 13 certification of the decision on December 28th and for Judge 14 Lamberth to conclude that there was no just reason for delay. 15 And in the absence of that certification, she has taken an 16 interlocutory appeal because the order denied summary 17 judgment, denied your motion -- 18 MS. BRASWELL: Our motion to enter a judgment. 19 JUDGE FACCIOLA: -- your curious motion for a 20 summary judgment against yourself and ordered discovery. 21 MR. KEENEY: Your Honor, I think you're 22 misapprehending our argument based on the order. The order 23 has two parts. One part it's clearly interlocutory, the 24 denial of the entry of summary judgment. That's no question 25 about that. 11 1 Our argument is it's the second part of the order 2 that's appealed from which is tantamount to a preliminary 3 injunction. That we believe is properly in the Court of 4 Appeals and, in any event, it's for the Court of Appeals to 5 determine its own jurisdiction. 6 JUDGE FACCIOLA: Why is it tantamount to a 7 preliminary injunction? 8 MR. KEENEY: Because it orders affirmative 9 obligations on the Government to go forward with discovery. 10 One of the obligations it imposes is to have discovery 11 conducted in front of Your Honor and there are other 12 obligations. 13 So what we have to do is look at the order as a 14 whole. You're certainly right, there's a part of that order 15 that's interlocutory, there's no question about that. But 16 we're focusing on the order in its whole, and if part of that 17 case is properly in the Court of Appeals, that means the 18 whole case is in the Court of Appeals. That means the Court 19 of Appeals has to decide its own jurisdiction. 20 And, frankly, Your Honor, I think it's improper 21 for this court or for Judge Lamberth to be deciding whether 22 the jurisdiction of the Court of Appeals is proper. I think 23 that's a decision for the Court of Appeals and ultimately 24 that is a decision that will be made by the Court of Appeals. 25 JUDGE FACCIOLA: Well, concedingly it is ultimately 12 1 a decision for the Court of Appeals, but as I just pointed 2 out I thought Judge Ward in the Southern District of New York 3 was building on something Wright & Miller said, that the 4 District Court should not be in a position where a clearly 5 interlocutory appeal is taken. And the sole purpose -- 6 MR. KEENEY: Yes. 7 JUDGE FACCIOLA: Hear me out -- of defeating 8 District Court jurisdiction in answering, that kind of 9 manipulation of the two court system should not be done. 10 MR. KEENEY: Your Honor, we're not doing the 11 manipulating. The appeal was filed by the Government, but 12 secondly, more importantly it is not clearly interlocutory. 13 MR. COBB: And we would concede that the Government 14 certainly did not file the appeal for the purpose of 15 manipulating anything or to divest the court jurisdiction as 16 they've indicated by their fully cooperative posture with 17 this court in permitting discovery to go forward. 18 MS. BRASWELL: Absolutely. 19 MR. COBB: It is our view that as a matter of law, 20 however, given the breadth of the order that the 21 interlocutory portion of appeal is distinct from the non- 22 interlocutory portion of the appeal and, therefore, just by 23 operation of law that the court is divested of jurisdiction. 24 JUDGE FACCIOLA: Yeah, before you go on. Ms. 25 Braswell, I didn't certainly mean to suggest you were 13 1 manipulating anything. 2 MS. BRASWELL: I just want the record to be clear. 3 JUDGE FACCIOLA: What I was trying to understand 4 was Judge Ward in his decision was concerned about that as a 5 matter of theory, that is, the appellant can -- the appellant 6 by taking a noncertified interlocutory appeal can purport to 7 defeat District Court jurisdiction, and that's what Judge 8 Ward ruled. 9 MR. KLAYMAN: The point I was going to make, Your 10 Honor, is that that notice of appeal that was filed is void. 11 It has no legal authority. 12 MS. BRASWELL: That -- we disagree with that, Your 13 Honor. I mean, we believe that the notice of appeal -- what 14 we have stated as our issues on appeal are both the 15 continuance of discovery which is in the form of an 16 injunction requiring us to proceed ahead with discovery and 17 we've been ordered to release certain documents which also is 18 in essence an injunction requiring us to take affirmative 19 steps. 20 So we believe both of those orders are appealable 21 and therefore Mr. Klayman is incorrect in saying that the 22 notice of appeal is void. 23 MR. KLAYMAN: Well, taking that argument which 24 obviously is her fall-back argument, Your Honor, she has 25 waived any objection to discovery going forward. And to 14 1 file a motion at this late hour particularly after there's 2 been notice since December 22nd, 1998, and Mr. Huang's 3 deposition has been at issue now for several weeks and the 4 Judge issued an order on April 9th approximately at around 5 noon with no notice provided is simply a delay tactic. 6 MS. BRASWELL: Well, I want to make it clear that 7 we're not objecting to the discovery going forward. I'm just 8 discussing whether or not our notice of appeal is valid. 9 MR. KLAYMAN: And I was addressing the arguments 10 made by counsel for Mr. Huang in terms of the tactic. The 11 Judge specifically admonished these kinds of "shenanigans," 12 in the last page of his order of April 9th. 13 JUDGE FACCIOLA: I shall go see. 14 (A brief recess was taken.) 15 JUDGE FACCIOLA: The motion to quash the unserved 16 1999 invalid 1996 subpoena is denied and we can proceed with 17 the deposition. That is my ruling in consultation with Judge 18 Lamberth. I believe that the appeal taken by the United 19 States is -- in so far as it purports to appeal from the 20 determination of Judge Lamberth that the discovery should 21 continue is interlocutory and we do not believe that our 22 jurisdiction is divested. The deposition should proceed. 23 MR. COBB: Your Honor, for the record and just 24 perfunctorily, not withstanding our rights to certain 25 procedural mechanisms to contest that position, but without 15 1 waiving them we're prepared to proceed. 2 JUDGE FACCIOLA: All right. 3 MR. KEENEY: And further to that, Your Honor, we 4 have certain documents that we are producing now and -- 5 JUDGE FACCIOLA: Have Mr. Klayman and Ms. Braswell 6 seen these before? 7 MR. KEENEY: No. No one has seen these before. 8 They are itemized in our Rule 45 response filed at 10 o'clock 9 today. 10 Mr. Klayman. Ms. Braswell. And we are proffering 11 an original to the court, Your Honor, so you can follow 12 along. 13 MR. COBB: To the extent it's required. 14 MR. KLAYMAN: You can swear the witness in. He's 15 already sworn, but you can re-swear him. 16 Whereupon, 17 JOHN HUANG 18 was called as a witness and, having been first duly sworn, 19 was examined and testified as follows: 20 EXAMINATION BY COUNSEL FOR PLAINTIFF 21 BY MR. KLAYMAN: 22 Q Mr. Huang, do you realize that this is a continuing 23 deposition from your first deposition on October 29th, 1996, 24 correct? 25 MR. COBB: Objection. Calls for a legal 16 1 conclusion. Our position on that is fully on the record. 2 We're here and prepared to proceed. 3 JUDGE FACCIOLA: Overruled. Answer the question. 4 THE WITNESS: Yes. 5 BY MR. KLAYMAN: 6 Q And during that deposition on October 29th, 1996, 7 you testified truthfully in all respects? 8 A (No response.) 9 Q What are these motions? 10 A Well, on the advice of counsel, I exercise my right 11 under the Constitution of the United States to refuse to 12 answer on the grounds 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 crimination. 17 JUDGE FACCIOLA: Did you get that, madame reporter? 18 THE REPORTER: Just barely. 19 JUDGE FACCIOLA: Because I didn't. Mr. Keeney, 20 could you read that into the record in a louder voice. 21 MR. KEENEY: Yes. Let me read this on behalf of 22 the witness, "On the advice of counsel I exercise my right 23 under the Constitution of the United States to refuse to 24 answer on the ground that my answer may tend to incriminate 25 me and to the extent the question is related to any statement 17 1 I have made previously that is found to have been 2 incriminating, answering the question places me in danger of 3 further crimination." 4 MR. KLAYMAN: Your Honor, I believe we face another 5 impasse at this point, and we have a bench brief on this 6 issue as well, and we'll hand serve it here today. 7 It is the law that Mr. Huang having testified in a 8 civil proceeding before today has waived any Fifth Amendment 9 privilege to self-incrimination. 10 MR. COBB: Your Honor, on that point, if I might, 11 I've brought a copy, a courtesy copy for the court, that the 12 law of this circuit is clearly cited in the United States v. 13 Perkins et al. to the effect that that's not the case, and 14 that he has a legitimate -- not only a legitimate right but 15 that that cannot constitute a waiver, particularly in light 16 of Judge Lamberth's order and the creditability findings that 17 he made therein and Mr. Klayman's pleadings which accuse him 18 of lying. 19 And the waiver language, Your Honor, is on the last 20 two pages. 21 JUDGE FACCIOLA: Thank you. 22 MR. KLAYMAN: Do you have a copy of that case? MR. 23 COBB: I gave you one. The last two pages are the waiver 24 statement. 25 JUDGE FACCIOLA: Would you explain to me a little 18 1 more clearly the witness's position, because I understand Mr. 2 Klayman's position that the deposition was begun and during 3 the course of that deposition, correct me if I'm wrong, the 4 witness never asserted a Fifth Amendment privilege? 5 MR. KLAYMAN: That's correct, Your Honor. 6 JUDGE FACCIOLA: All right. Now, he is being -- 7 the first question out of the box, he is not asserting a 8 Fifth Amendment privilege. 9 MR. COBB: Well, I mean, just to be technically it 10 wasn't quite the first question, but the first substantive 11 question out of the box which specifically asked him to 12 comment on his veracity at the first deposition in light of 13 Judge Lamberth's characterizations of that testimony and Mr. 14 Klayman's characterizations of that testimony. 15 The fact that it's been two years and the fact that 16 at the time there were no pending Justice Department 17 investigations as there clearly are at this stage of the 18 game, all are circumstances which consistent with Perkins 19 where, now, a witness testified under oath in a criminal 20 proceeding and subsequently issued a letter recanting that 21 testimony and this circuit ruled unambiguously that any 22 testimony having to do with the veracity of any prior 23 testimony or putting any prior testimony at issue was clearly 24 subject to the privilege. 25 MR. KLAYMAN: It's a different situation than is 19 1 set forth in this case, Your Honor. Obviously, again, this 2 is issue is brought forward at the 12th hour. There was an 3 opportunity since the very first time that a statement was 4 made and subpoenas were served to raise this issue in terms 5 of Fifth Amendment. It was not. 6 It has, in fact, been withheld even from the latest 7 pleading that was filed at 5:30 yesterday evening. This is 8 yet another shenanigan as set forth in the court's order of 9 April 9th, 1999. It is clear that Mr. Huang having testified 10 in this lawsuit and filed a motion stating that his testimony 11 was in fact truthful, that motion for reconsideration which 12 Judge Lamberth decided last Friday is now hiding behind a 13 Fifth Amendment privilege to have to testify, and this is 14 wholly inappropriate. 15 This case is not on point to Perkins' case. 16 MR. COBB: Your Honor, the witness was asked to 17 comment on the truthfulness of his prior testimony. JUDGE 18 FACCIOLA: Obviously a truthful answer that he didn't 19 answer -- truthful or not that he didn't give the truth would 20 tend to incriminate him. So I'm going to sustain the 21 plaintiff with reference to that question. You may inquire. 22 MR. KLAYMAN: I'll ask that the statement which he 23 read be made Exhibit -- 24 MR. COBB: Well, I don't think you can deprive him 25 of his -- 20 1 JUDGE FACCIOLA: He needs it in front of him. It's 2 on the record. That's why I had Mr. Keeney read it. 3 MR. COBB: Thank you, Your Honor. 4 BY MR. KLAYMAN: 5 Q Mr. Huang, you previously responded to the subpoena 6 for your attendance at October 29th, 1996, that subpoena was 7 made Exhibit 1 to your prior deposition, correct? 8 A Well, under the advice of counsel, I exercise my 9 right under the Constitution of the United States to refuse 10 to answer on the ground that my answer may tend to 11 incriminate me and to the extent the question is related to 12 any statement I have made previously that is found to have 13 been incriminating, answering the question places me in 14 danger of further crimination. 15 MR. KLAYMAN: Does Mr. Huang intend to take a 16 blanket privilege today and answer no questions at all? 17 MR. COBB: He intends not to answer any substantive 18 questions and assert his Constitutional privilege which 19 applies to Asian-Americans as well as all Americans. 20 MR. KLAYMAN: What does the remark about applying 21 to particular groups have to do with anything? 22 MR. COBB: I want it plain on the record in light 23 of the rhetoric in this case and the suggestion that he's 24 somehow hiding clear that he is entitled to this position. 25 MR. KLAYMAN: Your Honor, I take issue with that 21 1 kind of remark. 2 JUDGE FACCIOLA: Yeah. I don't think that was 3 necessary. 4 MR. COBB: I apologize, Your Honor. 5 JUDGE FACCIOLA: But let's see if we can't figure 6 out where we are procedurally. Mr. Huang was just asked a 7 question. Mr. Klayman, please, why don't you 8 listen to this, you can get to that later. 9 MR. KLAYMAN: Sure. 10 JUDGE FACCIOLA: Mr. Huang was just asked a 11 question with reference to an event or a prior testimony at 12 the deposition. I take it then the witness when asked those 13 kinds of questions will assert the Fifth Amendment privilege? 14 MR. COBB: Yes, that's correct, Your Honor. 15 JUDGE FACCIOLA: Well, we have his position. I 16 suppose now we'll -- why don't you lay out the record as best 17 you can, Mr. Klayman. It would seem to me where we are now 18 procedurally is you'll have to move to compel and I'll have 19 to resolve the Fifth Amendment question. 20 BY MR. KLAYMAN: 21 Q Mr. Huang, you are producing documents for the 22 first time here today, correct? 23 A Mr. Klayman, under the advice of counsel, I 24 exercise my right under the Constitution of the United States 25 to refuse to answer on the ground that my answer may tend to 22 1 incriminate me and to the extent the question is related to 2 any statement I have made previously that is found to have 3 been incriminating, answering the question places me in 4 danger of further crimination. 5 Q Where did you find these documents, Mr. Huang? 6 A Under advice of counsel, I exercise my right under 7 the Constitution of the United States to refuse to answer on 8 the ground that my answer may tend to incriminate me and to 9 the extent the question is related to any statement I have 10 made previously that is found to have been incriminating, 11 answering the question places me in danger of further 12 crimination. 13 Q Are these documents in response to the subpoena 14 which required your attendance on October 29th, 1996, Exhibit 15 1 to your deposition? 16 A On the advice of counsel, I exercise my right under 17 the Constitution of the United States to refuse to answer on 18 the ground that my answer may tend to incriminate me and to 19 the extent that the question is related to any statement I 20 have made previously that is found to have been 21 incriminating, answering the question places me in danger of 22 further crimination. 23 MR. KLAYMAN: I'll ask that the court reporter mark 24 as Exhibit 8 the subpoena which was served requiring your 25 attendance at this deposition along with the notice of 23 1 deposition. 2 MS. BRASWELL: What number again? 3 MR. KLAYMAN: Eight. And I'll ask that on that -- 4 MS. BRASWELL: Are we continuing ahead the numbers, 5 is that what you're doing? 6 MR. KLAYMAN: That's correct. This is a continuing 7 deposition. And I'll ask that she mark the date of the 8 deposition on it with the name John Huang. 9 (Huang Deposition Exhibit No. 8 10 was marked for identification.) 11 MR. KEENEY: And just for the record, we object 12 solely to the reference where it says this subpoena was 13 served. That's not correct. 14 MR. KLAYMAN: That is how you plead as of your 15 pleading as of yesterday evening. We understand that. It's 16 our position otherwise. 17 I'm showing you Exhibit 8, have you seen that 18 document before, Mr. Huang? 19 MS. BRASWELL: Can you please give me a copy? 20 Thank you. 21 THE WITNESS: On the advice of counsel, I exercise 22 my right under the Constitution of the United States to 23 refuse to answer on the ground that my answer may tend to 24 incriminate me and to the extent the question is related to 25 any statement I've made previously that is found to have been 24 1 incriminating, answering the question places me in danger of 2 further crimination. 3 MR. KLAYMAN: Your Honor, that clearly cannot be an 4 indication of Fifth Amendment privilege. This is a sham 5 claim of privilege. I'm not asking him about his prior 6 testimony as they just claimed. I'm just asking him whether 7 he's ever seen this document. That could not incriminate him 8 in any way. 9 JUDGE FACCIOLA: There is -- well, I think we 10 really are at a point here where I was wondering if we could 11 proceed as following, if it's possible for counsel to arrive 12 at a stipulation with reference to the circumstances under 13 which Mr. Huang will invoke the Fifth Amendment privilege. I 14 will then ask for briefs to be presented on the Fifth 15 Amendment privilege and resolve this. 16 It seems to me, I hope you all agree, that this 17 exercise is getting us nowhere. Would you be willing for me 18 to step out for 10 minutes and see if you could do that, Mr. 19 Cobb and Mr. Klayman? 20 MR. KLAYMAN: I think before doing that, Your 21 Honor, we need to get an understanding -- it's quite clear to 22 me that they intend to invoke a blanket Fifth Amendment 23 privilege. I could ask him what color tie he's wearing today 24 and he would take the privilege. I don't feel that there's 25 any room for stipulation here. We'd like to take the issue - 25 1 - 2 JUDGE FACCIOLA: Well, I just wanted -- the point 3 is that you have to, Mr. Klayman, shape the legal question 4 for me so I can resolve it. Now, as I understand from what 5 we've seen this morning, you are quite right to suggest 6 that -- you have the understanding, it's certainly my 7 understanding, that every question being asked of him 8 irrespective of the topic will be met by the Fifth Amendment 9 privilege which raises the issue of what is the scope of my 10 authority. 11 The question is, you know, under the Fifth 12 Amendment, the recent decision by Judge Wall in the Circuit 13 deals with the invocation of the privilege and since this has 14 all been sprung on me as well, my best recollection of the 15 case is that it subjects the District Court to some 16 restrictions in terms of, as you put it, Mr. Klayman, judging 17 the validity of the assertion of the privilege with reference 18 to, you know, whether it was sunny on May 1st or whatever in 19 terms of the link in the chain of the Fifth Amendment to be 20 blunt that is being sprung on me without a chance to research 21 it. 22 All that's coming back to me is that decision and 23 your quite right to raise the issue but to be quite blunt, I 24 don't know what to answer. 25 MR. KLAYMAN: In fact, Your Honor, there has been 26 1 briefing on this issue in this case. There are some briefs 2 in the case dealing with Nolanda Hill a witness who came 3 forward who attempted to assert the Fifth Amendment privilege 4 after she was indicted by the Justice Department, claiming it 5 would tend to incriminate her. 6 We submitted briefs, her counsel submitted briefs, 7 I believe the Justice Department submitted briefs, and Judge 8 Lamberth ruled that you must testify at a minimum, and we 9 didn't have the issue of waiver as we have here with a prior 10 civil deposition, but you must answer if it will not 11 incriminate you. It's as simple as that. And -- 12 JUDGE FACCIOLA: How does the judge make that 13 determination if the witness knows the way in which the 14 incrimination may occur and the judge does not? That's the 15 problem that I think Judge Wall's decision made, which I'm 16 struggling with frankly. 17 MR. KLAYMAN: Well, on this particular question, on 18 its face, you cannot be incriminated by simply stating that 19 you received a document or aware of that document. 20 JUDGE FACCIOLA: So it's your view that it is an 21 appropriate exercise of the judicial function for each 22 question continue to assess the validity on the assertion of 23 the privilege on the ground of the likelihood that an answer 24 would tend to expose a person to criminal liability? 25 MR. KLAYMAN: That's correct. 27 1 JUDGE FACCIOLA: I have that right as a judge? 2 MR. KLAYMAN: You have that right as Judge Lamberth 3 has ruled with regard to Nolanda Hill in this case. 4 JUDGE FACCIOLA: As to each question? 5 MR. KLAYMAN: It is law of the case. 6 JUDGE FACCIOLA: What are the standards I use? 7 MR. KLAYMAN: Standards that you use are an 8 objective standard. 9 JUDGE FACCIOLA: In other words, if I believe that 10 it's being asserted frivolously, I can -- and there is 11 absolutely no possibility whatsoever that the question would 12 tend to incriminate, I can overcome the privilege? 13 MR. KLAYMAN: That's right. You can. But here's 14 my suggestion at this point in time, Your Honor, because we 15 do not want to proceed with a piecemeal deposition. I don't 16 think it is in your best interest as an officer of the court 17 who has a lot of busy things to do. 18 JUDGE FACCIOLA: Don't worry about me. You've got 19 the whole day. I'm not going anywhere. 20 MR. KLAYMAN: But what we suggest is that since 21 this matter has been raised at the last minute, since the 22 matter was not previously advised by putting anybody on 23 notice this was going to occur, and there were plenty of 24 opportunities to do so, that with Your Honor's permission and 25 Judge Lamberth's permission that we adjourn this deposition 28 1 and Your Honor accept briefs by 5:00 p.m. today or a time 2 that you may deem appropriate so we can go back and take a 3 look at this case and pull the other cases out and that we 4 proceed with this deposition tomorrow based upon whatever the 5 court's rulings may be. 6 JUDGE FACCIOLA: Ms. Braswell, what are your 7 views? 8 MS. BRASWELL: Your Honor, I'm certainly free 9 tomorrow to continue the deposition. This comes as a 10 surprise to us as well. 11 JUDGE FACCIOLA: Okay. Let me ask you, but the 12 United States -- you have -- you're in curious position -- 13 MS. BRASWELL: I'm in a very curious position. 14 JUDGE FACCIOLA: -- because you are (a) 15 representing an agency, but you are also are the 16 representative of the United States which would tend to -- 17 which would have the responsibility for prosecuting Mr. 18 Huang. And there are nice questions in terms of how you 19 phrase it. 20 Mr. Keeney and Mr. Cobb, apparently my suggestion 21 of the stipulation got nowhere, but could you tell us are 22 there any questions that you anticipate Mr. Huang will answer 23 without asserting the Fifth Amendment privilege. 24 MR. COBB: I think that puts us in a difficult 25 position, Your Honor. 29 1 JUDGE FACCIOLA: I know it puts you in a difficult 2 position, but without a stipulation I'll just have to go on 3 the assumption that, as Mr. Klayman puts it, if you ask him 4 what color his tie is he's going to claim a Fifth Amendment 5 privilege? 6 MR. COBB: Well, I would -- we would not take that 7 position. You know, I think whatever arguments Mr. Klayman 8 wants to make about this exhibit, I think, you know, we have 9 not only the better of the law but the better of the facts. 10 I think the -- it is clear however that as to any substantive 11 question which implicates anything that he was asked or any 12 matter touched upon that he was asked previously he is going 13 to rely on his Constitutional privilege. 14 JUDGE FACCIOLA: Suppose Mr. Klayman goes beyond 15 what was asked previously and gets into new matters? What 16 can we reasonably anticipate at that point? 17 MR. COBB: I think it's very -- even not 18 withstanding the judge's order, it's very hard for me to 19 interpret the judge's order as involving or as permitting any 20 matter that wasn't touched on previously in light of the 21 breadth of the last deposition and the limitations and scope 22 imposed herein. 23 However, if he did, we'd have to take that on a 24 question by question basis. I think it's likely that he 25 would rely on his privilege. 30 1 MR. KLAYMAN: Let me ask at this point perhaps Mr. 2 Cobb will make a proffer, while not in any way affecting our 3 argument that any alleged privilege has been waived and not 4 in any way affecting our argument that things that don't 5 incriminate you you can't claim the privilege about, is the 6 reported fact that Mr. Huang has received immunity from the 7 Independent Counsel, from Judge Kenneth Starr. 8 Now, if he has received immunity, he would not be 9 subject potentially to prosecution. So let's get a proffer 10 on what that 11 immunity was. That will be helpful in terms of any briefing 12 of the issue, Your Honor. 13 MR. COBB: Well, I respectfully decline, Your 14 Honor, unless you insist. I can represent as an officer of 15 the court that he is legally in a position where asserting 16 the privilege is both appropriate, proper, and he is in 17 jeopardy consistent with the standard applicable under the 18 Fifth Amendment. 19 MR. KLAYMAN: Your Honor, we obviously can't accept 20 that, taken in light of -- 21 JUDGE FACCIOLA: Well, I may go to -- I may have to 22 go to the source of authority and speak to the Independent 23 Counsel. I don't see how else I can resolve that. 24 MR. KLAYMAN: Well, that may be another reason to 25 adjourn and take briefs today. 31 1 JUDGE FACCIOLA: Okay. Well, I'm not so certain I 2 can get all of this -- I mean, if I get briefs today, I don't 3 know how in the name of God I'm going to resolve it this 4 evening or in time, 9 o'clock this morning. 5 Is there any way -- what does my schedule look like 6 for the rest of the week? How do you look -- I was thinking, 7 how about Friday? 8 THE CLERK: Friday you have a couple hearings and a 9 mediation. 10 JUDGE FACCIOLA: What's that? 11 THE CLERK: A mediation hearing. 12 MR. COBB: Your Honor, I apologize for -- 13 JUDGE FACCIOLA: Friday's bad, how about Thursday? 14 THE CLERK: Two settlements. 15 JUDGE FACCIOLA: I'm available Thursday. 16 MR. KLAYMAN: We're available, Your Honor. 17 MS. BRASWELL: I'm available, Thursday. Friday 18 would be more difficult. 19 JUDGE FACCIOLA: When do you want to get your 20 briefs in? This is Tuesday. 21 MR. KLAYMAN: Can I raise an issue, Your Honor, 22 because Your Honor raised it and it's something we should 23 raise from one of your prior orders dealing with Judge 24 Lamberth's initial orders, is whether or not this kind of an 25 issue needs to go up to Judge Lamberth as well since it was 32 1 his order which ordered Mr. Huang back here. 2 JUDGE FACCIOLA: You have my assurances. Judge 3 Lamberth's clerk is sitting right there. And you have my 4 assurances I will consult with Judge Lamberth. 5 MR. KLAYMAN: I just wanted to raise that for the 6 benefit of the court. 7 JUDGE FACCIOLA: Without question, I will talk to 8 Judge Lamberth. 9 MR. COBB: Your Honor, if I might, just so the 10 record is clear, the law is also clear that it is not 11 appropriate unless and until required to do so to provide 12 advance notice of a defendant's intention to assert a Fifth 13 because it's an adverse -- it's adverse to your client. This 14 was the absolute first opportunity in which he was obligated 15 to do that. 16 JUDGE FACCIOLA: I understand. I think we can 17 agree what we have to talk about here, what I'm interested in 18 hearing from you. First of all, I want this question of 19 whether or not there is judicial authority to overrule the 20 privilege despite its assertion and what standard the court 21 is to use in that determination. 22 The second question is while briefs have been 23 submitted, Mr. Keeney, I certainly would appreciate a more 24 fuller explication from your point as to why you think this 25 has not been waived. 33 1 MR. KEENEY: No problem. 2 JUDGE FACCIOLA: Do we have any other issues? 3 MR. KLAYMAN: No, Your Honor, in terms of setting 4 the time, I would probably brief those issues as to the 5 issues we've discussed. However, I do take issue for the 6 record with what Mr. Cobb just said in terms of the point 7 that this court should have been notified as a matter of 8 professional courtesy that a privilege was going to be 9 asserted. 10 Certainly, although the situation is completely 11 different, Mr. Cobb did notify Congress in advance of they're 12 even contemplating subpoenaing Mr. Huang which they never did 13 at least in terms of the Senate, that they intended to assert 14 their Fifth Amendment privilege, yet he continues to trifle 15 with this court. 16 MR. COBB: Actually, Your Honor, if I might in 17 light of that mischaracterization of the facts that it was 18 only upon being contacted by Congress that we took that 19 position which was the appropriate thing to do at the time, 20 which Congress by the way honored. 21 MR. KLAYMAN: And you were contacted by this court 22 in the form of an order of December 22nd, 1998. 23 JUDGE FACCIOLA: We all have a lot of legal 24 research to do. Perhaps that's the most advisable use of our 25 time. 34 1 MS. BRASWELL: Your Honor, when are the briefs to 2 be submitted? 3 JUDGE FACCIOLA: When do you want to give them to 4 me? 5 MS. BRASWELL: Well, I have to coordinate with 6 attorneys at Main Justice, so I can do that just as quickly 7 as I can. 8 JUDGE FACCIOLA: Yeah, 5 o'clock today -- 9 MR. COBB: We're more than pleased to -- 10 MR. KLAYMAN: How about first thing in the morning, 11 Your Honor? 12 JUDGE FACCIOLA: That's fine or tomorrow afternoon 13 is fine, tomorrow's being Wednesday. 14 MR. KLAYMAN: Will that give you sufficient time to 15 decide before Thursday? 16 JUDGE FACCIOLA: Yeah. I'll be okay. 17 MR. KLAYMAN: Noon? 18 JUDGE FACCIOLA: Noon. 19 MR. KLAYMAN: Okay. 20 JUDGE FACCIOLA: If you can't handle it, you can 21 change it if you want. And I might even -- wait, I may even 22 look at law books myself. 23 MR. COBB: I will say, Your Honor, we will be -- 24 again, we will file the papers and expand upon our 25 presentation. However, we do just for the benefit of the 35 1 court view Perkins as dispositive on the way of our issue. 2 JUDGE FACCIOLA: So be it. But I would appreciate 3 a little more than that. The waiver point, I'd also like you 4 to speak to that as well. Unlike Judge Lamberth -- I'm not 5 as familiar with the procedural history as Judge Lamberth is. 6 MR. KLAYMAN: May I also ask, Your Honor, that Mr. 7 Cobb submit the immunity agreement with Judge Starr. 8 JUDGE FACCIOLA: I'm going to do that independently 9 of this. I'm going to speak with Judge Starr. 10 MR. KLAYMAN: At a minimum submit the actual 11 agreement to the court. If the court wants to take it in 12 camera, I don't see why it would be in camera, it's been 13 reported, it's been made public. We would like to have a 14 copy of it, but at a minimum in camera to see exactly what it 15 was. 16 JUDGE FACCIOLA: I'll see if I can bring that 17 about. 18 MR. KLAYMAN: And last but not least, I take it Mr. 19 Huang will remain in town during this period, within the 20 jurisdiction of the court? 21 JUDGE FACCIOLA: Do you have any objections? 22 MR. KEENEY: He's staying here, Your Honor. 23 JUDGE FACCIOLA: Okay. 24 MR. KEENEY: Your Honor, one last thing, we had an 25 extraordinary situation here where a witness has invoked the 36 1 Fifth Amendment in a videotaped deposition. In the past Mr. 2 Klayman has immediately released the depositions to the 3 press. 4 I think in light of the fact that you should not be 5 authorizing material going out to the press which brings into 6 disrepute the Fifth Amendment of the Constitution, I think 7 you should follow the policy that Congress followed after the 8 McCarthy era excesses of not permitting this to be broadcast 9 by the media. I think that's inappropriate to have it on the 10 U.S. news, question after question being asked in the 11 videotaped format. 12 MR. KEENEY: Your Honor, we reached this question 13 in the first deposition. They went into court with Judge 14 Lamberth, they sought to impound the videos, the Judge ruled 15 that's inappropriate. They're the ones who chose to come in 16 here to take this position at the 12th hour. This is public, 17 it should be made public. 18 JUDGE FACCIOLA: It is. We do the king's business. 19 I will issue in such order. 20 VIDEOGRAPHER: We're going off video record at 21 11:15. 22 (Whereupon, at 11:15 a.m., the deposition of JOHN 23 HUANG was adjourned.) 24 * * * * * 25