410 1 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA 2 -------------------------x 3 CARA LESLIE ALEXANDER : et al., : 4 : Plaintiffs : 5 : v. : Civil No. 96-2123 (RCL) 6 : FEDERAL BUREAU OF : 7 INVESTIGATION et al., : : 8 Defendants. : Volume 2 -------------------------x 9 10 Washington, D.C. 11 Monday, May 24, 1998 12 Continued deposition of 13 KENNETH BACON 14 a witness, called for examination by counsel 15 for Plaintiffs pursuant to notice and 16 agreement of counsel, beginning at 17 approximately 10:08 a.m. at the Offices of 18 Judicial Watch, Inc., 501 School Street S.W., 19 Washington, D.C., before Joan V. Cain, notary 20 public in and for the District of Columbia, 21 when were present on behalf on the respective 22 parties: 411 1 APPEARANCES: 2 On behalf of Plaintiffs: 3 LARRY KLAYMAN, ESQUIRE ROBERT CORRY, ESQUIRE 4 ALLAN FAVISH, ESQUIRE Judicial Watch, Inc. 5 501 School Street, S.W., Suite 725 Washington, D.C. 20024 6 (202) 646-5172 7 On behalf of Defendants Federal Bureau of Investigation and Executive 8 Office of the President: 9 JULIA FAYNGOLD COVEY, ESQUIRE Federal Programs Branch 10 Civil Division United States Department of Justice 11 901 E Street N.W., 9th Floor Washington, D.C. 20004 12 (202) 514-5302 13 On behalf of Defendant Department of Defense: 14 ANNE L. WEISMANN, ESQUIRE DAVID T. ZARING, ESQUIRE 15 Federal Programs Branch Civil Division 16 United States Department of Justice 901 E Street N.W., Room 1034 17 Washington, D.C. 20530 (202) 514-3395 18 BRAD WIEGMANN, ESQUIRE 19 Office of General Counsel United States Department of Defense 5 20 1600 Defense Pentagon, Room 3C975 Washington, D.C. 20301-1600 21 (703) 695-3392 22 412 1 APPEARANCES (CONT'D): 2 On behalf of Defendant Hillary Rodham Clinton: 3 PAUL B. GAFFNEY, ESQUIRE Williams & Connolly 4 725 Twelfth Street, N.W. Washington, D.C. 20005 5 (202) 434-5175 6 On behalf of Deponent: 7 WILLIAM J. MURPHY, ESQUIRE HALLIE A. MORELAND, ESQUIRE 8 Murphy & Shaffer 100 Light Street, 9th Floor 9 Baltimore, Maryland 21202-1019 (410) 783-7000 10 11 * * * * * 12 13 14 15 16 17 18 19 20 21 22 413 1 C O N T E N T S 2 EXAMINATION BY: PAGE 3 Counsel for Plaintiffs 416 4 BACON DEPOSITION EXHIBITS: 5 No. 1 - Notice of Deposition, 416 6 Attachments 7 No. 2 - Fax, Connolly to Klayman, 424 Attachments 8 No. 3 - Fax, Zaring to Klayman, 425 9 Attachment 10 No. 4 - Memorandum and Order 429 11 No. 5 - Letter, Zaring to Klayman, 437 Attachments 12 No. 6 - Letter, Quinlivan to Klayman, 488 13 Attachments 14 No. 7 - CNN Late Edition Transcript 497 15 No. 8 - New York Post Commentary 540 16 No. 9 - Message, Barr to Cohen, 561 Attachments 17 No. 10 - Letter, Murphy to Drudge 591 18 No. 11 - Letter, Murphy to Fallon, 594 19 Attachment 20 No. 12 - Letter, Murphy to Crane, 599 Attachments 21 22 * * * * * 414 1 P R O C E E D I N G S 2 THE VIDEOGRAPHER: Good morning. 3 This is the continuing deposition of Kenneth 4 Bacon, taken by the counsel for the 5 Plaintiffs in the matter of Cara Leslie 6 Alexander et al. v. Federal Bureau of 7 Investigation, et al., Case No. 96-2123 8 (RCL), held on this date, May 24, 1999, and 9 at the time indicated on the video screen, 10 which is 10:08 a.m. 11 Will counsel now introduce 12 themselves? 13 MR. KLAYMAN: Larry Klayman, 14 chairman and general counsel of Judicial 15 Watch. 16 MR. FITTON: Tom Fitton, President 17 Judicial Watch. 18 MR. CORRY: Robert Corry, Judicial 19 Watch. 20 MR. MURPHY: William J. Murphy; I 21 represent Mr. Bacon in his personal capacity. 22 MS. MORELAND: Hallie Moreland on 415 1 behalf of Mr. Bacon in his personal capacity. 2 MS. WEISMANN: Anne Weismann on 3 behalf of the Department of Defense and 4 Mr. Bacon in his official capacity. 5 MR. ZARING: David Zaring on behalf 6 of Mr. Bacon in his official capacity in the 7 Department of Defense. 8 MR. WIEGMANN: Brad Wiegmann with 9 Department of Defense. 10 MS. COVEY: Julia Fayngold Covey on 11 behalf of the Executive Office of the 12 President and the Federal Bureau of 13 Investigation. 14 MR. GAFFNEY: Paul Gaffney, 15 Williams & Connolly, on behalf of the First 16 Lady. 17 Whereupon, 18 KENNETH BACON 19 was recalled as a witness and, having been 20 previously duly sworn, was examined and 21 testified as follows: 22 EXAMINATION BY COUNSEL FOR PLAINTIFFS 416 1 CONTINUED 2 BY MR. KLAYMAN: 3 Q Mr. Bacon, how are you today? 4 A I'm fine, thank you. 5 MR. KLAYMAN: I'll show you what 6 I'll ask the court reporter to mark as 7 Exhibit 1 to this reconvened deposition. 8 (Bacon Deposition Exhibit No. 1 9 was marked for identification.) 10 BY MR. KLAYMAN: 11 Q Exhibit 1 is Plaintiffs' Notice of 12 Deposition of Kenneth Bacon. Attached to 13 Exhibit 1 is a subpoena duces tecum requiring 14 your presence here today on May 24, 1999, at 15 10:00 a.m. This subpoena duces tecum 16 requests the production of certain documents. 17 Have you seen Exhibit 1 before, 18 Mr. Bacon? 19 A Yes, I have. 20 Q And when did you see it? 21 A Wait a minute. 22 MR. MURPHY: You saw the subpoena, 417 1 actually. 2 BY MR. KLAYMAN: 3 Q Roughly. 4 A There are parts of this I have not 5 seen. 6 Q Which parts have you seen and when 7 did you see them, and which parts have you 8 not seen? 9 A I believe I saw the subpoena the 10 first time on Thursday, and I have not seen 11 Exhibit 1 previously. 12 Q You're referring to Exhibit A, the 13 document request; is that what you're talking 14 about? 15 A Exhibit 1. Does yours not have 16 this piece of paper attached to it? 17 Q Yes, it does. Did you see the 18 request for documents, which is set forth at 19 Exhibit A? 20 A Yes. 21 Q And did you look for the documents 22 which were requested in Exhibit A? 418 1 A Yes. 2 Q And where did you look for those 3 documents? 4 A I looked in my computer, in my 5 files, and in my notebooks. 6 Q Did anyone assist you in the search 7 for those documents? 8 A Not me personally, no, but I assume 9 that other people in my office were doing the 10 same thing with their files. 11 Q When you say you assumed that other 12 people in your office were doing the same 13 things with their files, what do you mean by 14 that? 15 A I mean that the subpoena was handed 16 out to all the likely characters, and they 17 were told to comply with the subpoena. 18 Q Who handed the subpoena out to the 19 likely characters? 20 A It was handed out by a woman named 21 Pat Bursell, who is the director of division 22 of management in the office of public 419 1 affairs. 2 Q When this was given to Mr. Bursell, 3 who gave it to her? 4 A You're asking me a level of detail 5 here that I sort of can't answer. I assume 6 the subpoena went to the lawyers at the 7 defense department who handed it down to the 8 -- to Mrs. Bursell, who handed it out to me 9 and to my secretary and to others in my 10 office. 11 Q Did you consult with any counsel, 12 any lawyers, in terms of responding to the 13 subpoena? 14 A I did not. 15 Q So you really don't know how the 16 subpoena was given to Ms. Bursell, and you 17 don't really know what instructions were 18 given to Ms. Bursell in terms of looking for 19 the documents? 20 A You are repeating what I told you, 21 yes. 22 Q So in fact you don't know whether 420 1 the documents were ever searched for? You 2 don't have any personal knowledge of that? 3 A I was given a subpoena and asked to 4 search for documents. I did that. 5 Q You know in terms of your own 6 search, correct? 7 A That's all I can attest to. 8 Q And did you receive any 9 instructions on how to search for the 10 documents? 11 A I did not. 12 Q How were you able to determine what 13 types of documents to search for and where to 14 search? 15 A I put the word "Tripp" into my 16 computer and printed out all the documents 17 that came out, and then I checked those 18 documents against a physical collection of 19 documents that I keep -- these were primarily 20 memos -- to make sure that the documents I 21 had had all the relevant attachments. I, as 22 I said, checked several files that I kept 421 1 near my desk and also I checked my notebooks. 2 This is approximately what I did a year ago 3 before I appeared here. 4 Q When you say notebooks, are you 5 referring to traditional notebooks or 6 notebook computers? 7 A The same four-by-six notebooks we 8 discussed at great length a year ago. 9 Q Are there any documents since the 10 date you were last deposed and today that 11 have been deleted from your hard drive or 12 other computer files? 13 A No, not that I deleted. 14 Q Are there documents that others 15 have deleted? 16 A I don't believe so. 17 Q I take it there's a Department of 18 Defense backup system for your computer? 19 A You would have to talk to computer 20 experts to find that. 21 Q Did anyone search that backup 22 system? 422 1 A I do not know. 2 Q But you didn't? 3 A I did not. I don't even know if 4 there is one. 5 Q Now, in response to the subpoena 6 are you producing any documents today? 7 A I have had handed over the 8 documents to the Department of Defense, and 9 if they are being produced they should have 10 been produced or will be. 11 MR. MURPHY: In addition, we're 12 producing, Mr. Klayman, some personal matters 13 that are responsive to the subpoena which 14 Mr. Bacon and I have discussed, and I have a 15 package for you. These are documents that 16 have been previously produced to the grand 17 jury that was investigating this matter and 18 one additional document that was generated 19 after the grand jury investigation was over. 20 MS. WEISMANN: And these are 21 documents that are produced on behalf of 22 Mr. Bacon in his official capacity. 423 1 MR. KLAYMAN: I take it that the 2 Department of Defense and Mr. Bacon 3 personally already have copies of both of 4 these? 5 MR. MURPHY: Yes. 6 MR. KLAYMAN: So, if we make other 7 copies, we only need to make them for 8 Mr. Gaffney and ourselves? 9 MS. WEISMANN: That's correct. 10 MR. KLAYMAN: Maybe Mr. Gaffney 11 already has them. 12 MR. GAFFNEY: No. 13 MR. KLAYMAN: If I make two copies 14 of this will that be sufficient? Anyone else 15 need copies? 16 I'll show you what I'll ask the 17 court reporter to mark as Exhibit 2, which is 18 a document of May 21, 1999, from the law firm 19 of Murphy & Shaffer in Baltimore to Larry 20 Klayman which attaches an objection to 21 subpoena duces tecum lodged on your behalf. 22 (Bacon Deposition Exhibit No. 2 424 1 was marked for identification.) 2 BY MR. KLAYMAN: 3 Q Have you ever seen this document 4 before, Mr. Bacon? 5 A I saw it in draft. 6 Q And when did you see it in draft, 7 roughly speaking? 8 A A week or so ago. 9 Q Is the document that I've shown to 10 you your final version of your objection 11 filed by your counsel? 12 A I believe so. I'm not sure I saw 13 the final version, but it appears to be close 14 to the draft, yes. 15 Q Take an opportunity to review it 16 and tell me if it's accurate or whether there 17 are other documents that are not being 18 produced that you know of. 19 MR. KLAYMAN: Could we just take 20 one minute? 21 THE VIDEOGRAPHER: Going off video 22 record at 10:20. 425 1 (Recess) 2 THE VIDEOGRAPHER: We're back on 3 video record at 10:21. 4 THE WITNESS: I'm not aware of any 5 documents that have been withheld other than 6 those specified in here, and I think this is 7 a very narrow group. 8 BY MR. KLAYMAN: 9 Q I'm sorry. I didn't hear you. 10 A I said I'm not aware of any 11 documents that have been withheld, any other 12 documents. 13 MR. KLAYMAN: I'll show you what 14 I'll ask the court reporter to mark as 15 Exhibit 3. 16 (Bacon Deposition Exhibit No. 3 17 was marked for identification.) 18 BY MR. KLAYMAN: 19 Q Exhibit 3 is a letter sent by 20 Mr. David T. Zaring of the Department of 21 Justice. It was faxed to our office I 22 believe it was last Friday, May 21, 1999, the 426 1 date of the letter, and it lists certain 2 objections on your behalf by virtue of your 3 professional capacity. Have you seen this 4 before? 5 A No. 6 Q Take an opportunity and review it. 7 Does this refresh your recollection as to 8 whether you've seen it? 9 A It refreshes my -- yes, it does 10 refresh it. 11 Q That you've seen it? 12 A No. 13 Q That you haven't seen it? 14 A No, I've not seen it. 15 Q Did anyone discuss with you from 16 the Department of Justice the objections 17 raised in this letter quite apart from the 18 letter itself? 19 A No. 20 Q Mr. Bacon, the first question I'm 21 going to ask you is did you discuss with 22 Secretary Cohen the legality or 427 1 appropriateness of the release of Tripp's 2 information? I'm talking about Linda Tripp, 3 about the investigation of how the release 4 occurred or whether Secretary Cohen should 5 publicly name only Clifford Bernath as the 6 person who released the information. 7 A No, I did not. 8 Q At any time? 9 MR. MURPHY: Do you want that read 10 back? It was a long question. 11 THE WITNESS: No. No, I 12 understand. 13 BY MR. KLAYMAN: 14 Q Let me break down the question 15 because that was compound. I'm reading to 16 you from the order of the judge of March 31, 17 1999. Have you seen that order? 18 A I have. My understanding was that 19 there were 22 questions listed in the order. 20 He denied a number of those questions, 21 perhaps nine of the questions, and that we're 22 supposed to limit our questioning here to 428 1 thirteen, and I'm prepared to answer those 2 questions. 3 You seem to be scrambling the order 4 of the questions or at least asking them in a 5 different format. It might be wise from the 6 efficiency standpoint to start at the 7 beginning and just march through the 8 questions since they are in somewhat of a 9 chronological order as I recall. 10 Q I'll be happy to show you a copy of 11 the order, but I have asked the questions 12 exactly as the judge has phrased them in his 13 order. I'm not going to ask them in the 14 judge's order because I think this will 15 facilitate the flow at the deposition. 16 MR. MURPHY: Could you just 17 enlighten us, Mr. Klayman -- 18 MR. KLAYMAN: I'll be happy to give 19 you a copy of the order so we can just read 20 them. 21 MR. MURPHY: I have the order. I'm 22 just asking which one -- 429 1 MR. KLAYMAN: This isn't a trick 2 question. 3 (Bacon Deposition Exhibit No. 4 4 was marked for identification.) 5 BY MR. KLAYMAN: 6 Q So what I'm referring to 7 initially -- 8 A You started with question three. 9 Q I'm starting with question number 10 three. 11 A Right. 12 Q Let me break it down for you. Did 13 Bacon, that's you -- 14 A But I had requested that you start 15 with question one. 16 Q I prefer to start with question 17 three. 18 A Okay. 19 Q We will get to question one, but 20 let's start with three. Did Bacon discuss 21 with Secretary Cohen the legality or 22 appropriateness of the release of Linda 430 1 Tripp's information from her Pentagon file? 2 What is the answer to that question? 3 A On March 13, I gave Secretary Cohen 4 a memo in preparation for an interview on 5 March 15 with Wolf Blitzer of CNN. In that 6 memorandum, which I discussed with him 7 briefly, I stated that he could get asked a 8 question about Linda Tripp in light of an 9 article that was expected to run in The New 10 Yorker and be out over the weekend, and I 11 recommended that in response to a question on 12 that article that he say that the issue was 13 -- that there were established procedures for 14 dealing with the issue and that the 15 administration would look into the facts. 16 He appeared on the program and, as 17 I recall, basically gave that answer, and 18 that answer, of course, was reported verbatim 19 in the deposition of last year, my deposition 20 here last year. 21 Again, in April of 1998 he was to 22 appear on a second program, Fox Morning News. 431 1 I believe the date was the 26th of April in 2 1998. I gave him another memo prior to that 3 that contained some information, a 4 considerable amount of information, actually, 5 on the background of the Linda Tripp case, 6 although I must say that Tripp was dealt with 7 only glancing in this memo, most of which 8 dealt with other issues, including Kosovo and 9 base closure, which was the main purpose he 10 was going on to the program, the main topic 11 he was going to discuss. 12 I did not discuss prior to that 13 program the legality or appropriateness of 14 the release of Tripp's information or the 15 investigation of how the release occurred. 16 Q And you've done so at no time? 17 A I didn't say that. I said prior to 18 that program I did not discuss that, nor had 19 I discussed prior to that program in April 20 whether Secretary Cohen should publicly name 21 only Bernath as the person who released the 22 information. 432 1 I had no discussion on any of those 2 points with the Secretary prior to April 26 3 or whatever the date was, 1998, before the 4 Fox News program. 5 Q Now, you say there were two 6 memoranda that were provided to Secretary 7 Cohen. Did I hear that correctly? 8 A You heard that correctly. 9 Q Have you produced both of those 10 memoranda? 11 A I've produced them to the 12 Department of Defense. 13 MR. KLAYMAN: Have those memoranda 14 been produced to us? 15 MS. WEISMANN: You have the 16 entirety of the documents we produced in the 17 past supplemented by our document production 18 today. 19 THE WITNESS: I believe these were 20 produced last year. 21 MR. KLAYMAN: We have never seen 22 those two memoranda. Do you want to take a 433 1 break and perhaps we can even give you access 2 to our documents, if you can tell us which 3 you think they may be, but we've never seen 4 them. 5 The way we can do this, we will 6 give to Mr. Bacon a copy of the documents 7 that have been produced, both by the 8 Department of Defense on your behalf and 9 documents that have been produced in your 10 individual personal capacity. If those two 11 memoranda are contained in there, if you 12 could find them. 13 MS. WEISMANN: Mr. Klayman, I think 14 this might be easier. It's my understanding 15 that for those two memoranda, which were 16 initially accounted for in the initial 17 subpoena to the Department of Defense, we 18 successfully asserted the deliberative 19 process privilege and were upheld by the 20 court. 21 MR. KLAYMAN: Well, then, we may 22 need to get a clarification from the court 434 1 because obviously the court would not have 2 allowed us to get into it orally if the 3 memoranda themselves were covered by the same 4 privilege which you asserted that was in fact 5 rejected by the court in allowing us to take 6 the testimony here today. Maybe we can come 7 to an agreement on that that we can see those 8 two memoranda. 9 MS. WEISMANN: We successfully 10 prevailed. The court's order is clear on the 11 scope of this deposition. 12 MR. KLAYMAN: Well, I'm going to 13 ask you right now whether we could consult on 14 a Rule 108 basis and see if we can resolve 15 the differences before having to move the 16 court. 17 MS. WEISMANN: When this deposition 18 concludes, we'd be happy to consult. 19 MR. KLAYMAN: Recognizing that what 20 we're trying to do right now is to avoid 21 having Mr. Bacon come back a third time, 22 we're trying to be accommodating. 435 1 MS. WEISMANN: Mr. Klayman, we 2 asserted a deliberative process privilege 3 over these two documents, and the court 4 upheld our privilege assertion, so it's not 5 clear to me what further there is to discuss. 6 Aside from the documents themselves, you're 7 free to ask Mr. Bacon questions that are 8 consistent with the court's order. 9 MR. KLAYMAN: Do you know for a 10 fact, Ms. Weismann, that those two memoranda 11 were subject to deliberative process claims? 12 MS. WEISMANN: That's my 13 understanding, Mr. Klayman. 14 MR. KLAYMAN: Your understanding or 15 have you actually consulted with the list of 16 documents that you claimed? I understand 17 you're making that statement. 18 MS. WEISMANN: That's correct and 19 I'm not here under oath, Mr. Klayman. I 20 didn't come here prepared to answer your 21 questions. I'm giving you my best 22 understanding today that for those two memos 436 1 we asserted a privilege and the court has 2 upheld our assertion. 3 MR. KLAYMAN: I'm not trying to be 4 difficult. I'm just trying to in fact move 5 the process along because, obviously, if 6 we're getting testimony on a matter that has 7 underlying documents, then that is 8 diametrically opposed and perhaps we can try 9 to work it out. 10 MS. WEISMANN: We haven't asserted 11 any privilege today on the substance of any 12 testimony that he's offered or any of your 13 questions, so I would suggest that perhaps 14 you should proceed with your questions, and 15 if there's a need after that to have the 108 16 conference we'll be happy to consult with 17 you. 18 MR. KLAYMAN: Well, I'm trying to 19 be agreeable to avoid having Mr. Bacon come 20 back again. Maybe we can do this at a break. 21 I'll show you what I'll ask the 22 court reporter to mark as Exhibit 5. These 437 1 are documents that were produced by 2 Mr. Zaring of the Department of Justice on 3 your behalf professionally, Mr. Bacon, on May 4 3, 1999, as well as the entire Department of 5 Defense. 6 (Bacon Deposition Exhibit No. 5 7 was marked for identification.) 8 BY MR. KLAYMAN: 9 Q Showing you Exhibit 5, it's a 10 composite exhibit, and it includes all the 11 documents produced on that date, May 3, 1999, 12 by the Department of Justice on behalf of the 13 Department of Defense. Turn to the third 14 page. The second page is a blank white page, 15 and the document I'm referring to says, 16 Friday, the third, 1998, and reading down 17 there are portions that are blacked out. 18 Below it says, "Tripp's arrest record is 19 likely to become an issue. This is an area 20 that the Secretary of Defense are not well 21 prepared to deal with." Do you see that? 22 A I do. 438 1 Q Do you know who wrote that entry? 2 A I do not. 3 Q Do you have any idea as to whose 4 calendars these are? 5 A I do not. 6 Q Are you aware of that Clifford 7 Bernath kept calendars? 8 A Yes, I am. 9 Q Do you know that Clifford Bernath 10 recorded events leading up to Linda Tripp's 11 Pentagon file information? 12 A Not with any specificity. I know 13 we kept fairly detailed calendars on many 14 things. 15 Q But you know generally? 16 A Yes. 17 Q Does that refresh your recollection 18 as to whether this entry was made by Clifford 19 Bernath? 20 A It does not. I've never seen these 21 before. 22 Q Do you know if anyone else kept 439 1 calendars that mentioned the whole release 2 issue? 3 A I do not. 4 Q When it says Tripp's arrest record 5 is likely to become an issue, this was 6 written on Friday -- 7 A I believe it's Friday, the third 8 month, 13th day, 1998. 9 Q March 13, 1998. That was the date, 10 was it not, Mr. Bacon, that you instructed 11 Mr. Bernath to obtain the information about 12 Linda Tripp from her Pentagon file and 13 release it to Jane Mayer? 14 MR. MURPHY: Objection. 15 THE WITNESS: That is the date that 16 we have discussed at great length a year ago, 17 yes, in which the release was made. 18 BY MR. KLAYMAN: 19 Q Now, do you know what is meant by, 20 "This is an area that Secretary of Defense 21 are not well prepared to deal with"? 22 A I do not. I haven't seen that 440 1 before. 2 Q Did you ever tell Clifford Bernath 3 or anyone else not to tell the Secretary of 4 Defense Cohen about what was happening 5 concerning Linda Tripp's release of Pentagon 6 file information? 7 A I did not. 8 Q Do you know of anyone who did? 9 A I do not. 10 Q In and around that date, March 13, 11 1998, were there any discussions inside the 12 Department of Defense that this is an issue 13 that Secretary Defense Cohen was not well 14 prepared to do deal with? 15 A Not that I'm aware of, no. 16 Q You're not sure? 17 A The Department of Defense has 18 23,000 people in the Pentagon alone, and I 19 can't speak for every one of them, but I was 20 not party to any discussions that would have 21 led to this conclusion. 22 Q Are you aware of anyone else taking 441 1 part in any such discussions? 2 A I'm not. 3 Q Are you aware of anything in 4 writing to that effect? 5 A I am not. 6 Q Was there any discussion that the 7 Secretary of Defense should not know about 8 the release of Linda Tripp's Pentagon file 9 information because it was being ordered by 10 The White House? 11 A There was absolutely not, and it 12 was not ordered by The White House. 13 Q Now, you just referenced two 14 memoranda where you provided information to 15 Secretary Cohen. Correct me if I'm wrong. 16 It's your testimony that you were not 17 providing information about the legality or 18 appropriateness of the release of Tripp's 19 information in those two memoranda? 20 A That is true. 21 Q Was there any time that you 22 discussed the legality or appropriateness of 442 1 the release of Linda Tripp's information from 2 her Pentagon file with Secretary Cohen? 3 A I can only recall two times. 4 Q And when was that? 5 A One was on April 26, I believe, 6 1988 -- 7 Q 1998, you mean? 8 A 1998. Did I say '88? 9 Q Yes. 10 A When -- whatever the date was of 11 the Fox interview, and I believe that was 12 April 26, 1998, and the second was sometime 13 thereafter in May. 14 Q And correct me if I'm wrong. You 15 testified that you discussed this after his 16 appearance on Fox as opposed to before? 17 A That is correct. 18 Q And where did you discuss this with 19 him after his appearance on Fox? 20 A In an elevator. 21 Q In an elevator at the Fox building? 22 A At the Fox building. 443 1 Q And that's at 400 North Capitol 2 Street? 3 A I believe so. 4 Q As you were going down or up the 5 elevator? 6 A Down because it was after the 7 appearance. 8 Q Was anyone in the elevator with 9 you? 10 A I'm sure there was a security 11 person, probably an elevator operator, and 12 there may have been one other person. There 13 could have also been a military assistant 14 there. 15 Q Who would the military assistant 16 be? 17 A I don't recall. 18 Q Who would he likely have been given 19 the fact that you were over at Fox that day? 20 A It was probably a woman, and it was 21 probably either Captain Loewer or Captain 22 Kleman. 444 1 Q Klayman? 2 A Kleman, but I don't -- it could 3 have been somebody else entirely. 4 Q Loewer, what is her rank? 5 A She is a Navy captain. 6 Q And what's her position? 7 A She is now the commander of a ship 8 in the Pacific Ocean. 9 Q When was she transferred to the 10 Pacific Ocean? 11 A I think she was transferred last 12 fall, perhaps. 13 Q Did you order the transfer? 14 A I did not. I don't have authority 15 to order military transfers. 16 Q Did you recommend the transfer? 17 A I did not. 18 Q Did she work in your office? 19 A She did not. 20 Q Why was she there with you and 21 Secretary Cohen? 22 A I don't -- 445 1 Q If she was, why was she there? 2 A Come to think of it, I don't 3 believe she was. 4 Q But if she was, what would have 5 been about her job at the time that would 6 have required her to go to the Fox studios 7 and Secretary Cohen? 8 A Because every time the Secretary 9 travels a military assistant goes with him to 10 handle phone calls or other things that might 11 occur, and so she was then the deputy 12 military assistant, and it is likely that she 13 would have done it or Captain Kleman, who is 14 an Air Force captain, therefore lower rank. 15 It's more likely that she was the one who was 16 there that day, but it could have been 17 somebody else. 18 Q What's Captain Kleman's first name? 19 A Kathryn. 20 Q And what is Captain Loewer's first 21 name? 22 A Deborah. 446 1 Q She's a captain, too? 2 A Well, I'm sure you know from your 3 knowledge of the military that captains in 4 the Navy are the equivalent of colonels in 5 the Air Force or colonels in the Army, 6 whereas captains in the Air Force are lower 7 ranks and they are right above lieutenants, 8 between majors. 9 Q Did both of these people work out 10 of Secretary Cohen's office? 11 A Yes. 12 Q And where is Captain Kleman today? 13 A She remains in Secretary Cohen's 14 office. 15 Q In Washington, D.C., at the 16 Pentagon? 17 A Right. 18 Q And you say there probably was a 19 security guard? 20 A At least one, maybe more. 21 Q A security guard from the Pentagon 22 or from Fox News? 447 1 A From the Pentagon. 2 Q And who would that security guard 3 likely have been? 4 A I have no idea. 5 Q What office would that security 6 guard have come from? 7 A The office that protects the 8 Secretary. 9 Q Was that security guard male or 10 female? 11 A I don't recall. 12 Q Who more frequently than other 13 security guards tended to go to these kinds 14 of appearances? 15 A It's impossible to say. 16 Q Do you remember the race of the 17 person? 18 A I do not. 19 Q Hair color? 20 A No. 21 Q Size? 22 A No. 448 1 Q So you discussed this in the 2 elevator going down, correct? 3 A That is correct. 4 Q Are these captains and security 5 people covered by top secret clearances? 6 A I have no idea what their 7 clearances are. 8 Q Was it your ordinary practice to 9 discuss Pentagon matters in the presence of 10 captains such as these two individuals and 11 security personnel such as you've just 12 described? 13 A Well, I didn't consider this an 14 issue of national security, but I feel free 15 to discuss issues in their presence, yes. 16 Q However, it was an issue involving 17 information from Linda Tripp's Pentagon file? 18 A That's not exactly an accurate 19 description. 20 Q Well, who spoke to who first? Did 21 Mr. Cohen speak to you or did you speak to 22 Mr. Cohen? 449 1 A I spoke to him. 2 Q And what did you say to him? 3 A He had been asked on the program if 4 Clifford Bernath had released the 5 information, or I think he -- you have a copy 6 of it because it was in last year's 7 deposition -- had been asked if Clifford 8 Bernath had -- I think Tony Snow said it was 9 Clifford Bernath who released this, wasn't 10 it, and then Secretary Cohen said yes. 11 Then he was asked if it was 12 illegal. Secretary Cohen then said well, it 13 was certainly inappropriate if not illegal. 14 In the elevator on the way down I said to 15 him, "This is more complex than that. I 16 think it's safe to say we should allow the IG 17 investigation to be complete before 18 commenting on what happened. Cliff didn't do 19 this on his own, and it's unclear right now 20 whether it's going to turn out to be illegal 21 or not." 22 That's all I said. The reason I 450 1 said this was because after every television 2 program like this there's a so-called stake- 3 out, another group of reporters outside, and 4 I thought he would get the question again and 5 he did. 6 Q You said Cliff didn't do this on 7 his own? 8 A That is my recollection of what I 9 said. 10 Q Did you -- 11 A I basically said this is more 12 complex. Cliff didn't do this on his own, 13 and it's unclear whether it's illegal or not, 14 and this is what the IG is looking at. 15 Q And Secretary Cohen then said to 16 you how do you know that? 17 A No. 18 Q Did you tell Secretary Cohen that 19 in fact you had instructed Clifford Bernath 20 to obtain Linda Tripp's Pentagon file 21 information and release it to Jane Mayer. 22 A I did not say that during this 451 1 brief elevator ride, which was, you know, 20 2 or 30 seconds. 3 Q Was there anything that you said 4 from which Secretary Cohen could understand 5 that you were involved in the release of that 6 information? 7 A Not at that time. 8 Q Anyone else? In other words, Cliff 9 didn't do it on his own. Was there any 10 implication that specific persons were 11 involved in addition to Mr. Bernath? 12 A No. 13 Q When you said that this is more 14 complex than you, Mr. Secretary, have just 15 stated with regard to legality, did you tell 16 Secretary Cohen how you had come to that 17 conclusion? 18 A I did not. 19 Q How had you come to that 20 conclusion? 21 A Well, I had always felt and had so 22 said and have said this publicly many times 452 1 as well as in other fora that there's a 2 balancing act between the Freedom of 3 Information Act and the Privacy Act, and 4 whether that balancing act was made 5 appropriately or inappropriately at this 6 particular incident would be determined by 7 the IG and that's still my view. 8 Q Is there any other basis upon which 9 you say this is more complex other than the 10 fact that a decision hadn't been made yet by 11 the IG, meaning the Inspector General? 12 A I think I've run through why I said 13 what I did. 14 Q That's the sole basis? 15 A Yes. 16 Q In other words, no one had told you 17 that you had violated the Privacy Act or not 18 violated the Privacy Act by ordering the 19 release of Linda Tripp's information? 20 A No one in any official capacity has 21 told me that I violated the Privacy Act. 22 That's what the IG is trying to determine, I 453 1 understand. 2 Q Well, was there anyone who told you 3 in an unofficial capacity up to that elevator 4 ride with Secretary Cohen? 5 A Well, there are plenty of people in 6 the press who have written what they think 7 are the facts, but the fact of the matter is 8 that the IG is looking into this and will 9 make a determination. 10 Q Well, but what I'm saying is as of 11 the time of that elevator ride with Secretary 12 Cohen, when you're going down with the 13 secretary guard and either one of these two 14 captains, had anyone unofficially told you 15 other than what you read in the press that 16 your actions were contrary to the Privacy 17 Act? 18 A No one had directly told me, no. 19 Q Who told you indirectly? 20 A Well, I've told you. The Secretary 21 had made the comment about this in March 22 before the National Press Club, which you've 454 1 seen, in which he had said something similar 2 to what he had said on Fox News, that this 3 was certainly inappropriate if not illegal, 4 but he had never said that to me directly, 5 nor had any other official at the department 6 said that to me directly. 7 Q And what date was that appearance 8 on Fox News again? That was April 26, was it 9 not? 10 A I believe it was April 26. 11 Q Now, do you know who Don Perkal is? 12 A He's a lawyer in the defense 13 department. 14 Q Had Mr. Perkal ever said to you or 15 anyone else anything to the effect that 16 Bernath committed a technical error but no 17 criminal intent? We need to look at this 18 closer? Had you heard anything like that up 19 to the elevator ride? 20 MR. MURPHY: Let me just lodge an 21 objection. I don't know in what capacity 22 such a conversation, if it occurred, may have 455 1 occurred, and it implicates certainly a 2 possibility of an attorney-client 3 communication but -- 4 THE WITNESS: The fact of the 5 matter is Mr. Perkal never said that to me. 6 BY MR. KLAYMAN: 7 Q Well, flip two pages in Exhibit 5 8 to the page called 3. Looking down on the 9 Monday the 16th of March, 1998, entry at 1500 10 hours, "Bernath called Don Perkal, briefed 11 him, provided him with a copy of the details 12 memo. Later Don delivered an assessment, 13 Bernath committed a technical error but no 14 criminal intent. We need to look at this 15 closer." 16 Do you see that? 17 A I do see it. 18 Q Does this refresh your recollection 19 as to whether anyone ever discussed this 20 apparent assessment by Don Perkal? 21 A Yes, it refreshes my recollection, 22 and the answer is still no, no one ever 456 1 discussed this with me. 2 Q So it confirms that you never heard 3 anything to this effect from either 4 Mr. Perkal or anyone else up to the date you 5 took the elevator ride with Secretary Cohen 6 on April 26, 1998, at Fox News Sunday? 7 A That is correct. 8 Q Have you heard anything such as 9 I've just read to you from Mr. Perkal's 10 assessment since that date? 11 A I have not. I don't believe I ever 12 talked to Mr. Perkal about this. 13 Q Have you heard that from anyone 14 else? 15 A Not that I recall. 16 Q You don't remember? In other 17 words, you may have heard it but you don't 18 remember right now? 19 A I don't believe I've heard this 20 from anybody else, and that's what I 21 testified five minutes ago, that no one has 22 told me this. 457 1 Q Now, you testified back on May 15, 2 1998, and if you'd like, you can look at your 3 transcript at page 354. 4 A What did I say? 5 MR. MURPHY: Let's look. 6 BY MR. KLAYMAN: 7 Q At line 14, "After the statement 8 was made by Secretary Cohen, statement naming 9 Clifford Bernath, did you ever tell him as 10 his press secretary you better correct that? 11 We shouldn't be blaming just Cliff Bernath? 12 "Answer: Yes, I did. 13 "Question: When did you tell him 14 that? 15 "Answer: I told it to him right 16 afterwards. 17 "What if anything Did Secretary 18 Cohen do that you know of?" 19 Now, you also discussed in that 20 elevator what I've just read to you, correct? 21 A This was the moment when I 22 discussed it. This was the moment after the 458 1 Fox appearance. It was in the elevator that 2 I made this comment to him. 3 Q Well, what I read to you is 4 different than what you testified to this 5 morning, in terms of saying, we shouldn't be 6 blaming just Clifford Bernath, correct? 7 MR. MURPHY: Objection to your 8 characterization. 9 MR. KLAYMAN: I'm giving him an 10 opportunity to explain. 11 THE WITNESS: What I just told you 12 was that in the elevator ride I made two 13 points. The first point was that Cliff 14 Bernath alone wasn't involved in this, that 15 it was more complex than that, and, second, 16 that it wasn't clear that it was illegal. 17 Those are the two points I made in a very 18 brief elevator ride. 19 I also said that, in line with 20 earlier advice I'd given him back in March, 21 that the safest way to deal with questions on 22 this was to say it's under review, I've asked 459 1 the IG to review it, that review is ongoing, 2 and it's inappropriate to talk about it till 3 it's over. 4 He went out, was asked a question 5 about this and I don't have a transcript of 6 what was said then, but my recollection is 7 that what he said essentially when asked 8 about this was look, this is under review. 9 It's better not to talk about it until the IG 10 completes the review and all the facts are 11 in. That's my recollection of what he said 12 to the stakeout after the Fox News 13 appearance. 14 But this followed my only 15 conversation I had with him about the details 16 of this up until this point, which was April 17 26. 18 BY MR. KLAYMAN: 19 Q Who was present at the stakeout? 20 A I don't recall. 21 Q Have you ever testified to this 22 before a grand jury, what you've told us 460 1 today? 2 A I don't believe I was asked about 3 this, but I'd have to go back and review the 4 be grand jury testimony, which you've 5 probably done; it's public. But I don't 6 believe this came up in the course of my 7 grand jury testimony. 8 Q The issue of what you said to 9 Secretary Cohen? 10 A I do not believe this came up. 11 Q And the issue of what Secretary 12 Cohen may have said to you, that never came 13 up? 14 A Well, as I say, I don't recall that 15 he said anything to me at the time. I think 16 he just nodded. 17 Q Did it ever come up later in the 18 grand jury testimony what Cohen may have said 19 to you? 20 A Not that I recall. 21 Q Or what you said to Cohen? 22 A Well, I'd have to go back and 461 1 reread the testimony. 2 Q I won't hold you to it. The 3 testimony speaks for itself, but do you 4 remember anything to that effect? 5 A Well, I just said I don't recall 6 that this was an issue before the grand jury. 7 Q Now, did there come a point in time 8 when you had further discussions with 9 Secretary Cohen about what had occurred? 10 A Yes. 11 Q And when did that happen? 12 A That happened sometime in May. 13 Q And how did that discussion come 14 about? 15 A It came about at my initiative. I 16 would say in late May, but I'm not certain on 17 the date -- about the date and, as I say, it 18 came about at my initiative. 19 Q Did it come about in terms of your 20 initiative by your sending him a memorandum 21 or calling the secretary? 22 A No. I believe I was in his office 462 1 talking about something else and at the end 2 of the conversation talked to him about the 3 Tripp matter. 4 Q Now, between the date of the Fox 5 News Sunday appearance on April 26, 1998, and 6 late May 1998 did Secretary Cohen or anyone 7 from his office ever get back with you and 8 say who was involved in releasing the Tripp 9 information? 10 A Not that I recall. But I had 11 talked about this earlier with Bob Tyrer, his 12 chief of staff, in March, March 17 or 18, I 13 believe, maybe 18th, and I had mentioned it 14 to the Secretary one other time, I think, 15 after the Fox show in just passing in his 16 office and then had a more detailed 17 conversation with him, I believe, in 18 mid-to-late May in his office. 19 Q Well, on March 17, when you had a 20 conversation with Bob Tyrer -- 21 A I believe it was March 18. 22 Q March 18, who initiated that 463 1 conversation? 2 A Well, he called me. I testified to 3 this last year before you. He called me when 4 I was in Montana and we talked about the 5 circumstances under which the information had 6 been released. 7 Q And you told Mr. Tyrer on March 18, 8 1998, that in fact it was not just Clifford 9 Bernath but other people were involved in 10 releasing the Tripp information? 11 A What I believe I told him was the 12 flow of events that had led up to the release 13 of the information, the phone call, all of 14 which I testified to before you. 15 Q And that included your involvement? 16 A Yes, it did. Well, it included 17 exactly what happened, that the calls had 18 come in on how we had dealt with the 19 information and passed it on. 20 Q And you didn't hold any facts back 21 from Mr. Tyrer, did you, on March 18? 22 A Well, I can't recall how detailed 464 1 that conversation was, frankly, and I think I 2 testified at the time that I couldn't recall 3 with complete specificity what was said, but 4 my recollection is that we did have a brief 5 conversation about the circumstances. He was 6 more concerned with what happened from that 7 time forth rather than how we'd gotten into 8 the situation we were in. 9 Q Well, I just want to be clear. You 10 did tell him that you were involved, that you 11 got the call from Mayer, that you ordered 12 Bernath to get the information, and that you 13 instructed Bernath to release it? 14 MR. MURPHY: Object to the form of 15 the question. You can answer. 16 BY MR. KLAYMAN: 17 Q Correct? 18 A Mr. Klayman, I want to be very 19 clear that I don't remember the degree of 20 specificity of this conversation with Bob 21 Tyrer. It is my recollection that I gave him 22 a very brief outline of what had happened, 465 1 but I don't recall how detailed it was. 2 Q Which brief outline included your 3 involvement in the matter? 4 A It certainly included the fact that 5 I had gotten a phone call, that I had relayed 6 that Cliff had taken the request over, and 7 that I was very aware of what was happening. 8 Q And it included that you had 9 instructed Mr. Bernath to get the information 10 concerning Linda Tripp? 11 A Mr. Klayman, we've been through 12 this before. I contend I did not instruct 13 him to get the information. It was a more 14 nuanced transaction than that. It was a 15 situation where he volunteered to take it 16 over. I knew exactly what he was doing. He 17 kept me informed about what he was doing, but 18 it is not my view that I instructed him. 19 Q You knew what he was doing, and I 20 believe you said you did nothing to stop him? 21 A That's right. I would say in 22 answer to a question I'm sure you're going to 466 1 ask me we were jointly responsible for what 2 happened. I don't think there's any doubt 3 about that. We both knew what was happening. 4 Q And that basic information was 5 conveyed to Mr. Tyrer on March 18? 6 A As I say, I believe it was but I 7 don't recall what form. 8 Q Now, when you conveyed that 9 information to Mr. Tyrer, it was your belief 10 you were conveying that information to the 11 Office of the Secretary, correct? 12 A Not necessarily. This has always 13 been an extremely -- I'd have to say low-key 14 item for the Secretary in that this is not an 15 issue that he has spent a lot of time on or 16 that has come up frequently in his dealings 17 with the press, and I don't know what, if 18 anything, Mr. Tyrer told the Secretary about 19 this. 20 Q I didn't ask you that question, but 21 at the time you conveyed it to Mr. Tyrer, who 22 is Secretary Cohen's chief of staff -- 467 1 A Correct, he is his chief of staff. 2 Q It was your understanding that you 3 were communicating with the number two 4 person, other than the Secretary himself, in 5 the office of Secretary of the Defense, 6 correct? 7 A Well, of course, it was my 8 understanding I was communicating with him. 9 I was talking to him on the phone. How could 10 I not understand that? 11 Q Now, in the course of your duties 12 and responsibilities at the Pentagon as press 13 secretary, from time to time you do relay 14 information to Mr. Tyrer with the purpose of 15 communicating with the Secretary of Defense, 16 correct? 17 A I do. 18 Q And that's common practice, 19 correct? 20 A That is common practice. 21 Q So you had reason to believe that 22 Mr. Tyrer would then convey the information 468 1 that you gave to him on March 18, 1998, to 2 Secretary of Defense Cohen? 3 A Well, I didn't think about it in 4 those terms one way or another because this 5 part of the phone conversation was minor 6 compared to other parts of the phone 7 conversation. This wasn't really what he was 8 calling about. He was calling about 9 something else. 10 Q You did not instruct Mr. Tyrer to 11 withhold this information on March 18, 1998, 12 from Secretary Cohen? 13 A Absolutely not. 14 Q You'd do anything like that, would 15 you? 16 A I have never instructed him to 17 withhold information from the Secretary. 18 Q And you've never instructed anybody 19 at the Pentagon to withhold information from 20 Secretary of Defense Cohen, right? 21 A That is correct. 22 Q Now, based on your knowledge of 469 1 what the chief of staff does and being chief 2 of staff to the Secretary of Defense, it is 3 his duty and responsibility, is it not, to 4 keep the Secretary of Defense fully informed? 5 A I think that I won't comment on his 6 duties. 7 Q That's your understanding, is it 8 not? 9 A He does what the Secretary wants 10 him to do. 11 Q What was your understanding on 12 March 18, 1998, of the duties and 13 responsibilities of the chief of staff to the 14 Secretary of Defense? 15 A That he is his principal staff 16 person who oversees his office and his 17 concerns. 18 Q That he is in effect the Secretary 19 of Defense's right-hand man? 20 A Yes. 21 Q That he is in effect the Secretary 22 of Defense's alter ego? 470 1 MR. MURPHY: Objection. 2 THE WITNESS: I can't speculate 3 about the psychological terms. 4 BY MR. KLAYMAN: 5 Q That when you can't get ahold of a 6 the Secretary of Defense the next best person 7 to be able to communicate with the Secretary 8 of Defense is the chief of staff? 9 A These are very theoretical 10 questions. The point of the matter is that 11 Bob Tyrer, the chief of staff, called me 12 about a particular issue. We dealt with that 13 issue. This was the part of the conversation 14 that dealt with the exact tick-tock of events 15 was a very small part of the conversation, 16 but it did occur in some way. 17 Q The question was that it is your 18 practice, since you've been press secretary, 19 that when you can't get ahold of the 20 Secretary himself, that the next best person 21 to communicate with is the chief of staff? 22 A It depends what the issue is. I do 471 1 frequently talk with the chief of staff, yes. 2 Q Now, you say you had a brief 3 conversation with Secretary Cohen somewhere 4 in between the time of March 18, when you had 5 the conversation with Mr. Tyrer, and your 6 later conversation in Secretary Cohen's 7 office at the end of May, correct? 8 A Right. 9 Q And where did that conversation 10 occur? 11 A Also in his office. I mean, I had 12 one conversation with him in the elevator, 13 and I had another very brief conversation 14 with him in, I would say, early May and then 15 a more substantive conversation with him in 16 mid-to-late May. 17 Q And where did that shorter 18 conversation occur in early May? 19 A In his office. 20 Q And how did it arise? 21 A At the end of the conversation 22 about base closings I mentioned that clearly 472 1 I had acted too quickly in the Linda Tripp 2 issue. I just said that I had done something 3 that if I thought about it longer I might not 4 have done. 5 Q And did he initiate that 6 conversation about Linda Tripp? 7 A I initiated it. 8 Q And when you say you had done 9 something, you told the Secretary exactly 10 what you had done? 11 A Yeah. I just said that the release 12 of information by this time it had become a 13 big news item that was -- I wouldn't say a 14 big news item but it had become a news item, 15 and I just said looking back on it I wouldn't 16 have done it that way. 17 Q You assumed when you told him that 18 you wouldn't have done it that way that he 19 had already been informed by Mr. Tyrer as to 20 what you had done? 21 A I didn't assume that. 22 Q So you told Secretary Cohen exactly 473 1 what you had done? 2 A I can't recall in great detail what 3 I did, but, I mean, he certainly knew of my 4 involvement at that time -- well, I don't 5 know whether he did or not. This was 6 probably early May, and I think basically 7 what I said to him was, you know, looking 8 back on it we shouldn't have done this or I 9 wish I'd thought about it more, something 10 like that. 11 Q So when you said that to him, you 12 assumed that Mr. Tyrer had communicated your 13 earlier conversation? 14 A No, I didn't assume that. 15 Q When you said that to him in early 16 May you were aware that Clifford Bernath had 17 already been deposed in this lawsuit and in 18 fact had at that point already identified you 19 as participating in the release of the 20 information concerning Linda Tripp? 21 A Certainly there had been stories in 22 the news in April, I believe. I can't 474 1 remember when Bernath was deposed. 2 Q So it was your understanding that 3 Secretary Cohen already had the basic facts 4 that you were involved in the release of the 5 Tripp information? 6 A I guess I did assume that, yeah. 7 Q And in fact there was discussion at 8 the Pentagon up to the point you met with him 9 in his office briefly in early May that you 10 were involved? It was well known at the 11 Pentagon? 12 A Well, I can't speak for that. 13 People weren't actually coming up to me and 14 saying we know you were involved in this. 15 Q Did anyone ever say to you, Ken, 16 something to the effect we know you're 17 involved, we like you anyway, anything like 18 that? 19 A Not that I recall. 20 Q People didn't discuss it with you? 21 They just clammed up? 22 A Few people tell me they like me. 475 1 I've gotten used to it. 2 Q I'm talking more about the Tripp 3 information. 4 A Nobody has spoken to me that way 5 about it, no. 6 Q Did anyone come up to you and talk 7 to you about it? 8 A No. 9 Q Now, did you say anything else to 10 Secretary Cohen as you mentioned this at the 11 end of your conversation in early May? 12 A No. It was very brief. 13 Q And what did he say in return? 14 A I don't recall he said anything. 15 Q Did he gesture in any way? 16 A No, not that I recall. 17 Q He looked upset? 18 A No. 19 Q Was he listening to you? 20 A Yeah, I think so. We were just 21 walking through his office outer door. We 22 were walking in one door of his office and 476 1 out the other door, and we were having a 2 conversation but, as I said, another topic, 3 and he made some comment about something that 4 somebody had done that didn't make sense to 5 him, and I said "Well, you know, sometimes, 6 you know, people do things that don't make 7 sense," and I gave as an example the whole 8 Tripp thing. That was the substance of the 9 conversation. 10 Q Did he put his hand on your 11 shoulder? 12 A He did not. 13 Q Did he try to console you in any 14 way? 15 A He did not. 16 Q He showed no emotion at all? 17 A That's my recollection, right. 18 Q Is that his normal demeanor, to 19 show no emotion, or has he sometimes shown 20 emotion? 21 MR. MURPHY: Objection, I think 22 we're getting far afield. 477 1 MR. KLAYMAN: It's one question. I 2 think it's legitimate in this context. 3 THE WITNESS: That's his normal 4 demeanor. 5 BY MR. KLAYMAN: 6 Q Now, during that conversation in 7 early May did you tell him we better correct 8 this misimpression about Bernath? 9 A No. 10 Q Did you ever tell him that? 11 A We ran through the conversation 12 that I had with him in the elevator on April 13 26. I mean, you and I have already done 14 that. That's when I spoke to him about that, 15 and as I said it was very quick. It was 16 glancing. It was during a very brief 17 elevator ride from the fourth floor to the 18 third floor. You know the Fox News 19 situation. You've been there more than I 20 have. You can probably tell me what floor 21 they're on. I don't recall, frankly. 22 Q After you told him that you better 478 1 correct this, which you did in the elevator, 2 correct? 3 A Mr. Klayman, I want to be very 4 clear about what I said. I didn't say you 5 better correct this. I said it's more 6 complex than you've stated, Bernath wasn't 7 the only person involved, that it's unclear 8 whether it was illegal. This is what the IG 9 is looking into. The safest answer is the IG 10 is looking into this. We ought to wait till 11 the report's completed. That's basically 12 what I said to him. 13 Q Let me refer you back to your 14 testimony. This is May 15, 1998, again line 15 14: "After the statement was made by 16 Secretary Cohen, did you ever tell him, as 17 his press secretary, you better correct that; 18 We shouldn't be blaming just Clifford 19 Bernath? 20 "Answer: Yes, I did. 21 "Question: When did you tell him 22 that? 479 1 "Answer: I told it to him right 2 afterwards." 3 Right? 4 A Right. 5 Q So when was it that you told him 6 unequivocally that you better correct this? 7 A I told him on the elevator on the 8 way down. 9 Q At any time did Secretary Cohen or 10 any of his representatives ever get back to 11 you to establish a way to correct it? 12 A Well, I think in the Secretary's 13 mind by making the statement he did at the 14 stakeout that he was dealing with the issue, 15 but I have to tell you that I am not aware -- 16 I had not briefed the Secretary fully on the 17 details of this before April 26, and I did 18 not consider what I said to him in the 19 elevator a full brief on April 26. 20 Q My question, though, is what, if 21 anything, did Secretary Cohen or his 22 representatives do after you told him to 480 1 correct it other than making the statement 2 that he made at the stakeout in front of Fox 3 News on April 26, 1998? 4 A That is the statement that he made. 5 That was the correction. 6 Q That's it? 7 A Right. 8 Q And you don't know what was in the 9 Secretary's mind when he made that statement, 10 correct? 11 A I do not. 12 Q And you've never talked to him what 13 was in his mind? 14 A No. 15 Q And just for clarity purposes what 16 was that statement? 17 A I've told you that I don't recall 18 the statement specifically, but my 19 recollection is he said essentially we 20 shouldn't rush to judgment. The details are 21 being looked into by the IG. It will come 22 out when the IG comes out. He did not, 481 1 though, specifically exonerate Mr. Bernath at 2 that time. He did not say Mr. Bernath was 3 not the only person who released this 4 information. 5 Q And he's never said that, correct? 6 A That to the best of my knowledge is 7 correct. 8 Q And Mr. Tyrer's never said that 9 publicly, correct? 10 A Mr. Tyrer generally doesn't talk in 11 public. 12 Q And you don't know of anyone in the 13 Secretary's office who has said that 14 publicly? 15 A No, I do not. 16 Q And in fact Secretary Cohen has 17 never blamed you publicly, correct? 18 A I believe that's correct. 19 Q In fact, he's never implicated you 20 in any way in the release of Tripp's 21 information publicly? 22 A Not that I've seen. 482 1 Q And no one from his office has? 2 A Not that I'm aware of. They may 3 feel they don't need to since it's been 4 widely published. 5 Q But you don't know that. That's 6 your supposition, correct? 7 A That is -- I know it's been widely 8 published. That's not a supposition. 9 Q I'm saying you don't know what they 10 are thinking? 11 A That is correct. 12 Q Now, you had a discussion at the 13 end of May, and it arose in the Secretary's 14 office, correct? 15 A Right. 16 Q And that was a longer conversation, 17 correct? 18 A Yes. 19 Q Who initiated it? 20 A I initiated it. 21 Q And what did you say? 22 A I basically walked through what had 483 1 happened, talked about how I'd gotten the 2 call on Thursday night and how I responded to 3 it, and said that this was something in which 4 I was -- in which Cliff and I had done 5 together and basically it was a short 6 conversation. It was relatively brief. 7 At the end of the conversation and 8 the context of this conversation I believe 9 that triggered the conversation was that it 10 had come up in response to some press 11 reports, that I had brought it up in response 12 to some press reports, and I had said to him 13 at the end of the conversation, "My job is to 14 solve problems for you, not to create 15 problems. If this becomes a politically hot 16 issue for you, I'm perfectly willing to 17 resign or handle this in any way you think 18 would be appropriate." 19 Q Was there anything else he said 20 during that conversation? 21 A Anything else I said, no. 22 Q And what did the Secretary say in 484 1 response? 2 A He said thank you. That was my 3 recollection of what he said. 4 Q Thank you for resigning? 5 A No. No, he just said thank you. 6 Q That's all he said, thank you? 7 A Yeah. He didn't say much. 8 Q Well, is that all he said, two 9 words, "Thank you"? 10 A That's my belief what he said. 11 That's my understanding. 12 Q Did he show any emotion? 13 A Not that I recall. 14 Q Do you know whether Secretary Cohen 15 has ever discussed this whole incident with 16 The White House? 17 A No, I do not. 18 Q You don't know one way or the 19 other? 20 A No. 21 Q Have you ever had any other 22 discussions with Secretary Cohen about this 485 1 whole incident of releasing Tripp's 2 information other than what you testified to 3 today? 4 A Well, what I testified to last May. 5 Q So there's nothing in addition to 6 what you've already testified to up to this 7 point in time? 8 A That is correct. 9 Q Have you ever had any other 10 conversations with Bob Tyrer, his chief of 11 staff? 12 A I have had -- I've not -- yeah, I 13 guess I probably had some in May where I 14 basically told him at about the same time I 15 talked to the Secretary in mid-to-late May, 16 told him the same thing in the same detail 17 that I told the Secretary. 18 Q Did you offer to resign to Tyrer as 19 well? 20 A I did. 21 Q Has anyone at the Department of 22 Defense ever suggested that you should resign 486 1 other than yourself? 2 A Not that I'm aware of, no. 3 Q Has anyone throughout the Clinton 4 Administration asked you to resign? 5 A Not that I'm aware of. 6 Q Or even suggested you should 7 resign? 8 A Not that I'm aware of. 9 Q Have you ever been reprimanded by 10 Secretary of Defense about this whole Tripp 11 incident? 12 A Not that I recall. Certainly Tyrer 13 made it very clear to me that he was upset 14 and by implication the Secretary was upset 15 about how it had been handled, but I don't 16 believe the Secretary himself has reprimanded 17 me about it. 18 Q But Tyrer never said the Secretary 19 is upset. You just implied that? 20 A Well, I can't recall exactly what 21 Tyrer said, but certainly the message was the 22 Secretary was upset. 487 1 Q Did he ever use the words, "The 2 Secretary is upset"? I take it not? 3 A I just can't recall. 4 Q So you don't know one way or the 5 other? 6 A No. 7 Q Did you ever have discussions with 8 Secretary Cohen about this whole issue of 9 reprimand? 10 A No. 11 MR. KLAYMAN: I'll show you what 12 I'll ask the court reporter to mark. Maybe I 13 can show it to you. Let's just take a 14 five-minute break. 15 THE VIDEOGRAPHER: Going off video 16 record at 11:22. 17 (Recess) 18 THE VIDEOGRAPHER: We're back on 19 video record at 11:32. 20 MR. KLAYMAN: I show you what I'll 21 ask the court reporter to mark as Exhibit 6. 22 (Bacon Deposition Exhibit No. 6 488 1 was marked for identification.) 2 BY MR. KLAYMAN: 3 Q And I'll turn your attention to a 4 document about a quarter of the way in. It's 5 a Department of Defense news briefing of 6 Thursday, May 21, 1998, 1:30 p.m. 7 Mr. Kenneth H. Bacon -- 8 A I'm sorry. What page is this? 9 Q Mr. Fitton can help you find it. 10 It's Bates number 11, the stamped numbers at 11 the bottom. 12 MR. FITTON: It's a transcript of 13 your briefing. 14 BY MR. KLAYMAN: 15 Q Do you see that document? 16 A Yes. 17 Q Looking at the bottom of the page, 18 this is the question that you're asked during 19 the Department of Defense news briefing, 20 "Have you been reprimanded by the secretary 21 about this at all," referring to the Tripp 22 incident? 489 1 "Answer: I've had extensive 2 discussions with the Secretary about this, 3 and I think I'll just wait for the IG 4 investigation to finish." 5 So you're responding there, 6 Mr. Bacon, that you did have extensive 7 discussions with Secretary of Defense Cohen 8 about whether you would be reprimanded, 9 correct? 10 MR. MURPHY: Objection, but you can 11 answer. 12 THE WITNESS: Well, first of all, I 13 think you've misinterpreted, if I may say, 14 what the meaning of this response is. I was 15 asked had I been reprimanded, and I 16 specifically did not answer the question. I 17 regard this answer as saying that I've had 18 discussions with the Secretary about this 19 topic and that I'll wait for the IG 20 investigation to finish. That's what I meant 21 by that answer. 22 BY MR. KLAYMAN: 490 1 Q So you were giving an evasive 2 response? 3 A Yes, that is true. 4 Q You wanted to give them the 5 impression that you had discussed being 6 reprimanded and that you had had extensive 7 discussions with the Secretary? 8 A No, that's exactly not what I 9 wanted to do. What I wanted to do was say 10 that the question of reprimand will follow 11 logically from the IG report and that it's 12 important to wait for the IG finishes its 13 work before getting into issues like that, 14 and then the Secretary and everybody else 15 will have a full set of facts that they can 16 review and decide how to respond to. 17 Q Now, this morning and before when 18 you testified on May 15 you certainly have 19 testified -- correct me if I'm wrong -- that 20 your discussions with Secretary Cohen were 21 rather brief about the Tripp incident? 22 A They were extensive in that I told 491 1 him, the facts. 2 Q So you can have brief conversations 3 yet be extensive at the same time? That's 4 your understanding? 5 A I think a brief conversation that 6 gives the necessary facts are extensive 7 enough. 8 Q And when you said extensive 9 discussions you were including the 10 discussions with Mr. Tyrer as well, correct? 11 A I talked to Tyrer about the 12 Secretary. I mean, by this time I'd spoken 13 to the Secretary twice in his office about 14 this and I've given you both those times. 15 Q Was your conversation with 16 Mr. Tyrer extensive? 17 A Well, I've had -- I can't remember 18 the number of conversations that I've had 19 with Mr. Tyrer or when I've had the 20 conversations, but I first -- I certainly had 21 the first one on March 18, and I had the 22 first conversation with the Secretary on 492 1 March 13 about this, when I was preparing him 2 for a weekend program with CNN, and then I 3 had the March 18 conversation with Tyrer, and 4 I can't remember the other conversations that 5 I had with Tyrer. 6 Q Well, certainly your conversations 7 with Mr. Tyrer, chief of staff, were as 8 extensive as your conversations with 9 Secretary Cohen, correct? 10 A Yes, probably more extensive. 11 Q During your March 18, 1998, 12 conversation with Mr. Bob Tyrer, did you tell 13 Mr. Tyrer that you had asked Clifford Bernath 14 to get the Tripp information? 15 A I believe so, but, as I said, I 16 cannot recall with great specificity the 17 details of that conversation. 18 Q What were your exact words to 19 Secretary Cohen in the elevator on April 26, 20 1998, regarding your involvement? 21 MR. MURPHY: Objection. I think 22 it's been asked and answered. 493 1 THE WITNESS: I think I've told you 2 in as much detail as I can recall. 3 BY MR. KLAYMAN: 4 Q Question number six that Judge 5 Lamberth has ordered you to answer is did 6 Bacon, that's you, tell Secretary Cohen the 7 circumstances that led to the release of 8 Tripp's background security information? 9 A That's what I believe I did in 10 mid-May in his office, yes. 11 Q Mid-to-late May? 12 A Mid-to-late May. 13 Q And previously you had told 14 Mr. Tyrer? 15 A Yes. 16 Q On March 18, 1998? 17 A Or later. I mean, as I said -- let 18 me repeat again. I don't remember with great 19 specificity what I told him exactly about 20 this on March 18 because the topic of 21 conversation was not primarily what happened 22 on March 13. It was something else. 494 1 Q Question number seven, did Bacon 2 discuss, did you discuss with Secretary Cohen 3 whether you had instructed Mr. Bernath to 4 release the Tripp information? If there's 5 any additional information that you haven't 6 provided that doesn't otherwise answer that 7 question -- 8 A Well, it has always been my 9 contention that I did not instruct Cliff 10 Bernath to release the information. 11 Q Since when has that been your 12 contention? 13 A It has always been my contention 14 that I never said to Cliff release this 15 information. What I did was have a series of 16 discussions with Cliff Bernath on Friday, 17 March 13, that led to the release of the 18 information, and we both agreed to release 19 the information. 20 Q So what you're saying is you 21 specifically didn't do it on your own; you 22 did it in conjunction with cliff Bernath? 495 1 You both decided? 2 A Yes. 3 Q So you're not solely responsible; 4 you have someone who's responsible with you? 5 A We did this together. 6 Q And do you take responsibility for 7 having done it with Mr. Bernath? 8 A Yes, as his boss I take 9 responsibility for having done it with 10 Mr. Bernath. As I said, I was aware of what 11 he was doing and did nothing to stop it. 12 Q Question number one, what answer 13 did you tell Secretary of Defense William 14 Cohen to give in an interview on CNN 15 regarding the trip release? 16 A I advised him to say -- now 17 remember this was on March 13. I advised him 18 to say that the Department of Defense has 19 established procedures for investigating such 20 matters and we will follow those procedures. 21 Q Did Secretary of Defense Cohen ask 22 you what those procedures were? 496 1 A No. 2 Q Did anyone follow up and ask you 3 what those procedures were? 4 A Well, the procedures in fact were 5 followed, so nobody asked me what the 6 procedures were, but the procedures in fact 7 were followed. 8 Q What did Secretary of Defense Cohen 9 say in response? 10 A Not much. 11 Q What did he say that wasn't much? 12 A I don't believe he said anything in 13 response. This was -- I went up to his 14 office to discuss with him three or four 15 primary issues that I thought would come up 16 on a television interview with Wolf Blitzer 17 on March 15, 1998. The primary issue was 18 Iraq, which was the issue of the day. Other 19 issues involved Kosovo and -- but mainly it 20 was Iraq, and at the very end of the -- as I 21 recall, at the end of the conversation I 22 mentioned that The New Yorker was going to 497 1 have a piece and that if it came up this is 2 the response I suggested, and he basically 3 didn't respond. 4 MR. KLAYMAN: I'm going to show you 5 what I'll ask the court reporter to mark as 6 Exhibit 7. 7 (Bacon Deposition Exhibit No. 7 8 was marked for identification.) 9 BY MR. KLAYMAN: 10 Q The pages aren't numbered. Exhibit 11 7 is the transcript of March 15, 1998, Sunday 12 edition of CNN Late Edition with Wolf 13 Blitzer, 12:00 a.m. Eastern Time. Turning to 14 the fifth page in, do you see where it says, 15 "Blitzer: OK"? It's the fifth page in. 16 A Yeah. 17 Q "Blitzer: OK. I have to switch 18 gears completely. We only have a few seconds 19 left. Linda Tripp, an employee of yours at 20 the Pentagon, she told USA Today this past 21 week because of her reassignment -- she's 22 gotten a new job -- she says, 'I view this as 498 1 a demotion also a step towards my ultimate 2 termination. Politics aside this sends a 3 message to any government employee, political 4 or career, who would dare disclose evidence 5 of a possible crime allegedly perpetrated by 6 their employer," Linda Tripp, of course, 7 being the woman who secretly recorded 8 conversations with Monica Lewinsky, the 9 former White House intern. Was she demoted?" 10 And Secretary Cohen responds, 11 "She's not demoted. In fact, she has the 12 same paying job she had before. She and her 13 attorneys requested that she have the 14 opportunity to work at home in terms of flex 15 work. She is one of three who currently 16 enjoy that status today and one of some 10 or 17 12 who have had that experience in the past. 18 She has been able to work at home 19 at her request" -- 20 A Sir, I can read this. 21 Q Well, we're on a video transcript. 22 I'd like to read it. I'm almost done. 499 1 "Because of her involvement with 2 the independent counsel, the time that must 3 be spent there, the fact it will be a 4 distraction for her at work, and so the level 5 of activity she's doing today is consistent 6 with her ability to carry that out. And so 7 it's not a demotion. She's paid the same 8 amount of money and thinking of the 9 circumstances should be quite satisfied with 10 that. 11 "Blitzer: Do you know her 12 personally? 13 "I have never met her." 14 Up to that point in time, had you 15 discussed any of those basic facts with 16 Secretary Cohen, what he just related? 17 MS. WEISMANN: I'm going to object 18 to the question and instruct him not to 19 answer. It's beyond the scope of what the 20 court has authorized in discovery here. 21 MR. KLAYMAN: Well, number one says 22 what answer did Bacon tell Secretary of 500 1 Defense William Cohen to give on CNN 2 regarding the Tripp release. This is 3 certainly information that concerns that -- 4 THE WITNESS: This doesn't directly 5 concern the New Yorker story that's the issue 6 here. This is a different issue entirely. 7 BY MR. KLAYMAN: 8 Q In all due respect, the New Yorker 9 story did deal with Ms. Tripp's background. 10 MS. WEISMANN: Mr. Klayman, this 11 issue is clearly addressed in the court's 12 numerous orders and my objection stands. 13 MR. KLAYMAN: All right, we'll 14 certify it. 15 BY MR. KLAYMAN: 16 Q Then Mr. Blitzer asked Mr. Cohen as 17 follows: "You've never met her. While she's 18 been at the defense department, you've been 19 at the defense department. There are reports 20 this weekend in U.S. News and World Report 21 and the New Yorker magazine that when she was 22 19 years old she was arrested and it's 501 1 unclear whatever happened to that, but the 2 question is on her security application, when 3 she applied for a national security 4 clearances, did she make available that 5 information? Do you know? Did you know 6 about this incident before the reports of 7 this weekend?" 8 Secretary Cohen answers, "The 9 answer is no, I was not aware of it. This is 10 an allegation now contained in the New Yorker 11 magazine. I'm sure that it will be the 12 subject of some inquiry. If it's true, it's 13 a very serious matter." 14 Did you convey that response to 15 Secretary Cohen? 16 A Yes. I said that it should be 17 investigated, and if it's true it is a 18 serious matter. 19 Q Now, when you raised this with him, 20 what date was that? This was May -- 21 A March 13. 22 Q March 13. Now, where did you meet 502 1 with him or have a conversation with him such 2 that you were able to give him that 3 information? 4 A I met with him in his office. 5 Q And what date was that? 6 A March 13. 7 Q And you told him specifically what 8 had occurred with regard to the release of 9 Tripp's information on that date, correct? 10 A I did not. 11 Q Where did he get the response, "If 12 it's true, it's a very serious matter"? 13 A I told him that the New Yorker was 14 expected to carry an article asserting that 15 Linda Tripp had been arrested and had not 16 indicated this on a form, and I said if he's 17 asked about that I said he could well be 18 asked about it because it will be out over 19 the weekend, and if he's asked about it I 20 recommend he say if that's true it's a 21 serious matter; the department has 22 established procedures for looking into that 503 1 and we will follow those procedures. 2 Q What was the basis of your telling 3 Secretary Cohen as early as March 13 that it 4 was a serious matter? 5 A My basis was that nothing but my 6 own hunch that it would be a serious matter. 7 I mean, I didn't talk -- as I've testified 8 before, I talked to no lawyers about this. I 9 just said this should be the answer to give. 10 Q But on that date on March 13 you 11 already knew how Linda Tripp had responded on 12 her security form, correct? 13 A That is correct. 14 Q So you were able to form your own 15 opinion as to whether it was a serious matter 16 on that date? 17 A That is correct. 18 Q And when you told the Secretary to 19 say this is a serious matter if true you gave 20 him information that in fact you had 21 confirmed that she had not been candid on her 22 security form? 504 1 A That is true, but I didn't tell him 2 that. All I said was that the story was 3 going to appear and this was the answer he 4 should give. 5 Q Did Mr. Cohen ask you how do you 6 know that? 7 A He did not. 8 Q Did he say anything to you to the 9 effect that how can I say this if I don't 10 know if it's serious or not? 11 A He did not. 12 Q Have you known Secretary Cohen to 13 go out and just parrot what you tell him to 14 say on a routine basis since you've been 15 press secretary? 16 A Well, I don't think that he does 17 parrot what I tell him to say on a routine 18 basis, and I think that to him this answer 19 made sense because it basically said we will 20 look into this. He didn't pass judgment on 21 it one way or another. He said we'll look 22 into it, and that's in fact what the 505 1 department did. 2 Q Was there any discussion with 3 Secretary Cohen, you and he, that making this 4 kind of a statement could harm the reputation 5 of Linda Tripp? 6 A There was not. 7 Q Did Mr. Cohen express any 8 reservation about saying this when he 9 appeared on CNN? 10 A Well, let's look at what he said. 11 He said if true. He didn't say it was true. 12 He said if true, it's a serious matter and 13 that the administration would -- that the 14 department would look into it. 15 Q Well, based on your experience in 16 journalism, and you've had considerable -- we 17 went over it -- is it proper journalistic 18 ethics to make statements like that when the 19 person who's making the statement doesn't 20 have the underlying facts? 21 MR. MURPHY: Objection. It's 22 beyond the scope of the questions that Judge 506 1 Lamberth has required Mr. Bacon to answer. 2 BY MR. KLAYMAN: 3 Q Well, what I'm trying to get at was 4 was there any inkling, any body movement, 5 statement, gesture, on Secretary Cohen's part 6 when you told him what to say, if it's true, 7 it's a very serious matter, that reflected 8 any reservation on his part in saying that? 9 A No, but I think that, because 10 you've read the entire transcript of this 11 Wolf Blitzer interview, you fully understand 12 the context of this issue, and it's important 13 to understand that because the main point of 14 the interview was not Linda Tripp. It was 15 basically Iraq, and there were other issues 16 that were covered. 17 Gender-integrated training was a 18 hot issue at the time. There were a number 19 of issues that were very much in the news. 20 This is something that we thought might come 21 up and might well not come up, whereas we 22 knew that Iraq and gender-integrated training 507 1 and others would come up. 2 So this was not the top of his list 3 of concerns at the time I talked to him about 4 it, which is one of the reasons I didn't give 5 him a lot of detail. Basically, my sense was 6 that what he wanted was an answer if the 7 question came up, and that's what I gave him. 8 Q During the time that you've worked 9 with Secretary Cohen as press secretary, have 10 you ever given him a response that he could 11 make on a television show where he's rejected 12 your recommendation on how to respond? 13 A Yes. 14 Q And that happens fairly frequently, 15 correct? 16 A It happens from time to time. 17 Q And during the course of your 18 experience in working with Secretary Cohen 19 when you've given him a response that he can 20 make on a television show has he ever asked 21 you for the underlying facts which gave rise 22 to your suggested response? 508 1 A Sometimes he does but not always. 2 Q Now, from the time that you were 3 called by Jane Mayer up to the point of this 4 interview on CNN, you'd had conversations 5 with The White House on a variety of matters, 6 hadn't you? 7 A As I testified a year ago, I 8 typically talk to The White House every day 9 in a conference call about foreign policy and 10 defense matters. 11 Q You had talked to The White House 12 about the Linda Tripp release, had you not? 13 A I had not. 14 Q You had talked about Linda Tripp 15 between that time period, the date of the 16 call from Jane Mayer and the appearance on 17 CNN? 18 A I don't believe I had. 19 Q Are you saying that you never 20 engaged in any conversation or communication 21 of any kind where Linda Tripp's name came up 22 during that period? 509 1 A The -- it never came up on one of 2 the noon conference calls. It is conceivable 3 but I don't recall this -- I don't recall 4 doing it, but it's conceivable that I did on 5 Friday, March 13, call P. J. Crowley at the 6 National Security Council and inform him that 7 Cohen was going to be on the Wolf Blitzer 8 show on Sunday, tell him what we thought the 9 topics would be, and in the course of that 10 mention that he was prepared for a Tripp 11 question. I would have done that because I 12 typically do that before the Secretary 13 appears on a Sunday television show, inform 14 The White House that it's happening and what 15 he think he'll discuss. 16 Q Did you tell Mr. Crowley what that 17 trick question would be? 18 MR. MURPHY: Tripp question. 19 BY MR. KLAYMAN: 20 Q Oh, I thought you said "trick 21 question." 22 A I said "Tripp" and I'm not sure 510 1 that I had this conversation. I'm saying I 2 could have well have had this conversation. 3 I have no mention of it in my notes, and I 4 can't rule out that I had it because it would 5 have been typical to have had it, but I don't 6 have any specific recollection of having had 7 that conversation. 8 Q Was anyone present during that 9 conversation from your end? Was it a phone 10 conversation? 11 A It was a phone conversation. 12 Q Your end of the phone? 13 A No. 14 Q Was anyone present on the other end 15 of the phone with Mr. Crowley? 16 A Colonel Crowley, no. 17 Q Was it done by speakerphone? 18 A No. 19 Q If you had that conversation you 20 would have told him the underlying facts in 21 terms of Linda Tripp's declaration that she 22 hadn't been arrested on the Pentagon form, 511 1 correct? 2 A I probably would not. 3 Q Why not? 4 A Unless he'd asked. 5 Q Did he ask? 6 A No. Well, I don't know whether I 7 had the conversation. I have no recollection 8 that he asked. 9 Q So he might have asked? You just 10 don't remember? 11 A Sir, I don't remember whether I had 12 the conversation. I'm just trying to lay out 13 for you what would have been a typical -- I 14 could have had this conversation, or I might 15 not have had the conversation. I have no 16 recollection of whether I did or not. 17 Q But what you're saying is in the 18 ordinary course of your duties, 19 responsibilities, you would have advised 20 someone at The White House such as Colonel 21 Crowley that that kind of question could come 22 up? 512 1 A I would have provided information 2 about any news that we expected to make or 3 deal with over the weekend, and in that 4 context I would have brought up the Tripp, 5 T-r-i-p-p, issue. 6 Q And you would have done that 7 because it is normal operating procedure for 8 your office to advise The White House when 9 some type of question could come up that 10 concerns The White House? 11 A I would have advised them solely so 12 they wouldn't be blind-sided by something 13 that had come up. 14 Q And that's your normal operating 15 procedure, correct? 16 A Right, and this is, if I made this 17 call, it is the only time I ever recall 18 discussing Linda Tripp with The White House. 19 Q Do you know whether anyone else 20 ever discussed Linda Tripp with The White 21 House after the period that Jane Mayer first 22 called you and asked for the information 513 1 about her? 2 A That's a very sweeping question. 3 MS. COVEY: Mr. Klayman, I would 4 object. This is going beyond the scope of 5 what Judge Lamberth laid out as the 6 permissible scope. 7 MS. WEISMANN: I join the 8 objection. 9 MR. KLAYMAN: Judge Lamberth 10 specifically stated in his order that the 11 primary issue is the contact, if any, that 12 the Pentagon had with The White House over 13 Linda Tripp? 14 MS. COVEY: Mr. Klayman, Judge 15 Lamberth laid out the specific questions that 16 were encompassed and what is permissible. 17 MR. KLAYMAN: And he allowed for 18 follow-up questions, which is what this is. 19 We've just established that there was 20 communication with The White House. This is 21 a follow-up question. 22 THE WITNESS: Sir, we did not 514 1 establish there was communication with The 2 White House on this. 3 BY MR. KLAYMAN: 4 Q Well, we haven't established that 5 there wasn't? 6 A That's entirely different. 7 Q I don't want to get into a debate 8 with you on -- 9 A You will concede the point -- 10 MR. KLAYMAN: Mr. Murphy, ask 11 Mr. Bacon it's probably in his best interest 12 not to -- 13 MS. COVEY: Mr. Klayman, I've 14 allowed certain questions that were not 15 authorized by Judge Lamberth, and I'm posing 16 an objection that we've gone far enough. 17 MR. KLAYMAN: Who are you 18 representing, Ms. Covey? 19 MS. COVEY: As I said in the 20 beginning, I'm representing EOP and the FBI. 21 MR. MURPHY: Mr. Bacon will answer 22 your question but it was a rather broad 515 1 question about has anybody ever discussed 2 anything with the White House. 3 MR. KLAYMAN: How would you suggest 4 we answer it, Mr. Murphy? 5 MR. MURPHY: I'd suggest you 6 reframe it rather than I. 7 BY MR. KLAYMAN: 8 Q I'll reframe it. Apart from this 9 conversation which may or may not have 10 occurred, as you've testified, was there ever 11 any other conversations by you or anyone at 12 the Department of Defense with The White 13 House concerning Linda Tripp? 14 A There was no conversation by me, 15 and I cannot answer the rest of the question. 16 Q Any written communications, same 17 question but putting in written 18 communications? 19 A None by me. 20 Q Can you answer with regard to 21 anybody else? 22 A I cannot. 516 1 Q Have you ever searched your 2 telephone records to see whether there were 3 other conversations? 4 A My secretary searched my telephone 5 records. 6 Q Did she search them in response to 7 a subpoena? 8 A Yes. 9 Q Which subpoena was that? 10 A I believe it was the subpoena last 11 year. 12 Q For the grand jury? 13 A You issued a subpoena last year and 14 one this year as well. I didn't specifically 15 talk to her about this, but the -- but my 16 understanding is that this is the type of 17 document that is searched. 18 Q Now, you don't know, do you, what 19 prompted Jane Mayer to call you? In other 20 words, you don't know whether she was 21 prompted to call you because she had spoken 22 to someone else at the Pentagon, do you? 517 1 MR. MURPHY: Now, I am going to 2 object because I don't think that's within 3 the scope of what Judge Lamberth's allowed 4 you to ask questions about. 5 MS. WEISMANN: I join in the 6 objection. 7 MS. COVEY: I join in as well. 8 MR. KLAYMAN: Let's certify it. 9 Certainly White House contact is in Judge 10 Lamberth's order. 11 BY MR. KLAYMAN: 12 Q Now, reading further into that CNN 13 transcript, which is Exhibit 6, Wolf Blitzer 14 then asked, "That she may have not fully 15 disclosed information about her background in 16 applying for security clearances," and 17 Secretary Cohen answers, "Well, not a matter 18 of fully disclosing. There is an item that's 19 to be checked -- Have you ever been either 20 charged or arrested for a crime? -- and if 21 the answer was no, then that's not simply a 22 matter of fully disclosing. It's a 518 1 contradiction of the truth." 2 Now, where did Secretary Cohen get 3 that? Did you give him that answer, too? 4 A No, I did not give him that answer. 5 Q Did you give him any part of that 6 answer? 7 A No. 8 Q So Secretary Cohen must have been 9 in contact with somebody else concerning 10 Linda Tripp? 11 A Well, that's not necessarily true 12 because I suspect he knew what this form was, 13 having filled them out in the past himself. 14 I mean, when I described the New Yorker 15 article to him, I described that it was about 16 checking a form. 17 Q And you told him what form it was? 18 A Well, I can't remember whether I 19 mentioned the name of the form. 20 Q You told him generically what kind 21 of form it was? 22 A Yeah, I said it was a security form 519 1 of some sort. 2 Q And you told him that Linda Tripp 3 in fact had not checked the box where it said 4 she'd been arrested? 5 A No, I don't believe I said that. I 6 just said that there was going to be a story 7 alleging that she had misreported this on the 8 form. I'm not sure I got into the question 9 of checking the box or not. 10 Q However, it was your understanding 11 that by telling Secretary Cohen that in fact 12 this was a serious matter that he could infer 13 that she hadn't checked the box? 14 A Well, I don't know what he inferred 15 or didn't infer. 16 Q But that was your intent, to convey 17 that Linda Tripp had not checked the box that 18 there was an arrest? 19 A As I said, I don't think I got into 20 that level of detail. I just said that there 21 was going to be this article coming, and this 22 is what the article was going to assert. 520 1 Q Well, early on in this deposition 2 you talked about nuanced discussions with 3 Secretary Cohen. Was this a nuanced 4 discussion as you would describe it? 5 A No, it was a very brief discussion. 6 Q Did you ask Secretary Cohen after 7 the interview how did he come up with that? 8 A No. 9 Q During the time that you've worked 10 at the Pentagon, have you ever known 11 Secretary Cohen to take a position that would 12 be adverse to the interest of the Clinton 13 Administration? 14 MR. MURPHY: Objection. That's 15 well beyond the scope of the questions that 16 Judge Lamberth has indicated Mr. Bacon is 17 required to answer. 18 MS. WEISMANN: I join in the 19 objection. 20 MR. KLAYMAN: Certify it. 21 BY MR. KLAYMAN: 22 Q Next question by Mr. Blitzer, "So 521 1 0your people now at the Defense Department 2 are going to look into this allegation?" 3 Mr. Cohen: "I'm sure it will be looked into. 4 It's a serious matter." That response you 5 gave to Secretary Cohen, correct? 6 A That's repeating what he said 7 earlier. 8 Q "It has not been investigated." 9 You told him that, too, correct? 10 A I didn't tell him that. 11 Q And how did he know that? 12 A Well, I think he knew it because 13 the allegation only occurred sometime over 14 the weekend and he was talking on Sunday, but 15 I don't know that. 16 Q And then he added, "At this point 17 it's still an allegation that we have no 18 knowledge of." Did you tell him to say that? 19 A No. 20 Q Do you know where he got that? 21 A No. 22 Q "So at this point it's not a matter 522 1 of investigation," did you tell him to say 2 that? 3 A No. 4 Q Reading this and given the facts 5 that you've testified to, which are that 6 Secretary Cohen, each time you told him 7 something, had no response, based on the 8 information that you have and your contact 9 with Secretary Cohen is it your opinion that 10 Secretary Cohen really didn't want to know 11 what was going on or what had happened, to 12 protect himself? 13 A It's my opinion that he saw this as 14 something that was not going to be a primary 15 focus of his interview, that the main focus 16 was going to be Iraq, that that's what he was 17 concentrating on, that he felt that I had 18 given him enough information for him to 19 answer the question quickly and to get out of 20 it. That was my impression. 21 Q But has it been your impression 22 since you've been at the Pentagon and this 523 1 Tripp issue has arisen that Secretary Cohen 2 really didn't want to get involved in it? 3 A Well, Secretary Cohen has not been 4 involved in this issue beyond ordering an IG 5 investigation. 6 Q But I didn't ask you that question. 7 I asked you is it your impression that he 8 didn't want to get involved in it, and that's 9 why he never responded to anything you've 10 told him? 11 A I can't speculate as to why he 12 didn't respond. I told you that I think in 13 this particular case he was focused primarily 14 on Iraq and most of what we've been talking 15 about that day was Iraq because he was going 16 to give a major talk to the press club on 17 Tuesday about Iraq, and I had provided most 18 of the facts for that talk and that's what we 19 had spent most of the time in this particular 20 meeting discussing, and as I said this was 21 really a tail-end issue. 22 Q So you've never received the 524 1 impression that Secretary Cohen was just 2 washing his hands of this Tripp issue? 3 A Secretary Cohen ordered an IG 4 investigation, and I think that he believes 5 that was the right way to proceed, and he'll 6 wait until the investigation is over and 7 decide what to do next. 8 Q Blitzer then asked, "Okay, 9 Mr. Defense Secretary, thank you so much for 10 joining us. Very kind of you to spend part 11 of your weekend with us on Late Edition. We 12 hope you'll be a regular guest on this 13 program. 14 "Mr. Cohen: "My pleasure. 15 "Blitzer: Thank you very much." 16 After that interview, did you tell 17 Secretary Cohen that he needed to clarify or 18 correct anything he said? 19 A I was in Montana when this 20 interview took place, and I don't believe I 21 read a transcript of the interview until I 22 returned a week later. 525 1 Q Well, did anything happen at that 2 time? 3 A No. 4 Q Did you see him on TV as he was 5 giving the interview? 6 A I did not. 7 Q Do you know who accompanied him to 8 CNN that day from the Defense Department? 9 A I believe it was Colonel Bridges. 10 Q Do you know what they discussed? 11 A I do not. 12 Q Have you ever discussed with 13 Colonel Bridges what went on that day? 14 A I have not. 15 Q Are you aware that there was a 16 press conference on Tuesday, March 17, 1999, 17 where Tripp was discussed? 18 A Yes. 19 Q Were you there? 20 A I was not. 21 Q Colonel Bridges was there, correct? 22 A I do not know. 526 1 Q Have you ever reviewed a transcript 2 of that press conference? 3 A I have. 4 Q In what context have you reviewed 5 it? 6 A I read it after I got back, and 7 I've reread it several times in preparation 8 for various depositions. 9 Q What did Secretary Cohen say at 10 that press conference about Linda Tripp, if 11 anything? 12 A Well, you have it right there in 13 front of you. Rather than my speculating why 14 don't you -- 15 Q What do you remember? 16 A I would rather have the text in 17 front of me. 18 Q We're referring to Exhibit 5, to 19 your first deposition session on the 15th. 20 MR. MURPHY: I have that. 21 BY MR. KLAYMAN: 22 Q And we would like to turn your 527 1 attention -- 2 MS. WEISMANN: Can we get a copy, 3 please? 4 BY MR. KLAYMAN: 5 Q Turn your attention to a page which 6 is Bates numbered 60, 060. Do you see that 7 document? 8 A I do. 9 Q Does that refresh your recollection 10 as to what Secretary Cohen said on that day? 11 A Yes, it does. 12 Q And how so? 13 A I see the document. I've read it. 14 Q Now, in the answer which Secretary 15 Cohen gave, "I don't know the answer to how 16 it was made public other than the New Yorker 17 magazine apparently has an investigative 18 reporter who got the information," where did 19 Secretary Cohen get that information to be 20 able to say that? 21 A Well, by this time there had been 22 articles about it, but I also had told him -- 528 1 remember, this is March 17. On March 13 I 2 told him the New Yorker was going to have an 3 article making an allegation about how Tripp 4 filled out her personnel -- had filled out or 5 not filled out the personnel form. 6 Q He then says, "The records are 7 supposed to be protected by the privacy 8 rules." Did you give that information to 9 Secretary Cohen? 10 A I did not. 11 Q Do you know where he got that? 12 A I do not. 13 Q Then he says, "I can't give you an 14 answer on how that reporter got his or her 15 hands -- I don't know who the reporter was on 16 the information going back into her past." 17 In fact, you had already told Secretary Cohen 18 on the 13th exactly who the reporter was, 19 correct? 20 A I had not. 21 Q You didn't just testify to that 22 today? 529 1 A No, I don't believe I ever said 2 that the article was going to be written by 3 Jane Mayer. 4 Q You told him, however, that Jane 5 Mayer had contacted you? 6 A Not on March 13, no. That's what I 7 said in May. He was -- to the best of my 8 knowledge, all he knew from me about this was 9 what I had told him on March 13. 10 Q And you had told him on March 13 11 that the Pentagon had released information? 12 A No. Let's be very clear again. I 13 don't know how many times we have to repeat 14 this but I want you to understand it. On 15 March 13 I said that the New Yorker magazine 16 was expected to run an article over the week- 17 end asserting that Linda Tripp had been 18 arrested when she was Young and may not have 19 reported that on a personnel form -- on a 20 security clearance form that she filed with 21 the Pentagon. That's what I said. 22 And then I said if you're asked 530 1 about this my recommendation is that you say 2 this is a serious -- if true, it's a serious 3 matter and we have established procedures for 4 looking into it. That's basically the advice 5 him I gave him and all the information I gave 6 him on March 13. 7 Q Did he ever say to you on March 13 8 this raises Privacy Act questions? 9 A He did not. 10 Q Did he say it raises legal 11 questions? 12 A He did not. 13 Q Are you aware that Colonel Bridges 14 was making statements publicly in and around 15 this time period that the release of Tripp's 16 information was "innocent information"? 17 A I am aware that he said that, yes. 18 Q Did he tell you that? 19 A He told me that on March 18. 20 Q Did Secretary Cohen ever raise this 21 with you, why is it that Bridges is saying 22 this is innocent? 531 1 A No, this is what Tyrer raised with 2 me on March 18. 3 Q Did you maintain that the release 4 of this information was innocent ay any time? 5 A I did not characterize it one way 6 or another. 7 Q Do you know why Bridges would make 8 that statement? 9 A I do not. 10 Q Do you know why he made that 11 statement? 12 A I do not. 13 Q Do you know whether Secretary Cohen 14 had told him to make that statement? 15 A I know that he had not told him to 16 make that statement. 17 Q How do you know that? 18 A Because Bridges told me that he 19 made it on his own. 20 Q Did he tell you on what basis he 21 made that? 22 A No. 532 1 MR. KLAYMAN: Let's change the 2 tape. 3 THE VIDEOGRAPHER: We're going off 4 video record at 12:18. 5 (Recess) 6 THE VIDEOGRAPHER: We're back on 7 video record at 12:20. 8 MR. KLAYMAN: I suggested that we 9 take a half an hour lunch break so we could 10 go through the documents that were produced 11 today and finish asking the questions that 12 Judge Lamberth ordered be asked and answered. 13 Ms. Weismann suggested that we ask all the 14 questions first and then go back after we've 15 had a chance to review the documents and ask 16 any supplementary questions. I've agreed to 17 that, correct? 18 MS. WEISMANN: That's correct. 19 BY MR. KLAYMAN: 20 Q The Secretary also said on March 17 21 at that press conference, "I don't know who 22 the reporter was and the information going 533 1 back into her past, frankly, it's a surprise 2 to me. I was not aware of it. It's now 3 under administrative inquiry and we'll have 4 to see what the facts hold up to." 5 Did Secretary Cohen get that 6 information from you? 7 A No. 8 Q Do you know where he got it? 9 A No. 10 Q So clearly he was in contact with 11 someone else, correct? 12 A Well, I'm not sure that I can 13 speculate about that. 14 Q And you don't know whether that 15 someone else was The White House, do you? 16 MS. WEISMANN: Object to the form 17 of the question. 18 THE WITNESS: Sir, at no time am I 19 aware of any conversations between Secretary 20 Cohen and The White House about this issue. 21 BY MR. KLAYMAN: 22 Q But you don't know one way or the 534 1 other? You can't vouch that he never 2 discussed this issue with The White House? 3 A I would be extremely surprised but 4 I can't vouch. 5 Q Turn your attention to the court's 6 order of March 31, 1999. We marked that as a 7 deposition exhibit. Was that No. 2? 8 MR. MURPHY: Four. 9 BY MR. KLAYMAN: 10 Q Turning to page 8, middle of the 11 page, as "Deposition testimony in this case 12 later showed, however, both Bacon and Bernath 13 testified that they had both been told before 14 the information was released that Tripp had a 15 previous arrest." That's what the court 16 writes. That's correct, is it not? 17 A That is correct. 18 Q Then the court writes, "This sworn 19 testimony is directly contrary to the earlier 20 public statement of Colonel Bridges as to the 21 department's role in the release of Tripp's 22 information. Thus, while this information by 535 1 no means proves a coverup, it does provide 2 some factual predicate for plaintiffs' 3 question's regarding the decision to name 4 Bernath but not Bacon publicly." 5 Now, are you aware of any 6 discussion by Colonel Bridges with Secretary 7 Cohen where the issue of whether to name you 8 publicly was raised? 9 A No, I am not. 10 Q And you don't know whether any such 11 conversation occurred, correct? 12 A No. 13 Q You don't know one way or the 14 other? 15 A No. 16 Q Have you ever asked Colonel Bridges 17 if he had had meetings with Secretary of 18 Defense Cohen? 19 A No. Well, I know that he escorted 20 him to the Wolf Blitzer show on Sunday, March 21 15. 22 Q So you don't know one way or the 536 1 other whether Bridges discussed with Cohen 2 withholding your name as part of the events 3 leading up to the release of Tripp's 4 information? 5 A I have no knowledge of that, but I 6 would be very surprised. 7 Q But you don't know one way or the 8 other? 9 A No. 10 Q Why would you be very surprised? 11 A I just don't -- one, I think he 12 would have told me, but, two, I don't think 13 this is what they discussed. My expectation 14 is that -- and I don't know, but my 15 expectation is they talked about Iraq. 16 Q Knowing what you've testified to, 17 that Cohen never really responded to anything 18 you've said about Tripp, is it your opinion 19 the reason he never responded is because he 20 got other information from other sources? 21 A No. 22 Q That is one explanation, is it not? 537 1 A The -- no, I don't think that's an 2 explanation. 3 Q So to this day you don't know why 4 the Secretary never responded to you? 5 A As I said, this was not the primary 6 issue of concern to him. At this point he 7 was mainly concerned with Iraq, and in my 8 dealings with him that was his primary focus. 9 Q Well, have you ever discussed with 10 him what his concern was? 11 A I discussed at one point and I 12 don't remember whether I had a direct 13 discussion with him or with Tyrer. There was 14 a Richard Morris article that I wanted to 15 respond to because I felt it was inaccurate 16 and -- because I felt it made inaccurate 17 statements about him. I believe this was in 18 June and I proposed a response to that 19 article and he decided not to respond. 20 Q The Secretary decided not to 21 respond? 22 A He didn't want to respond. 538 1 Q What was in the article that caused 2 you concern? 3 A I thought false statements about 4 Secretary Cohen. 5 Q And what were they? 6 A That he was operating at the behest 7 of The White House. 8 Q And did Secretary Cohen tell you 9 why he wasn't going to respond? 10 A He felt that the article was -- the 11 column was so outrageous and beyond the pale 12 that it would just go away, and he didn't 13 want to get into a public dispute over this. 14 He felt it would call attention to something 15 that was actually quite limited in impact. 16 Q Where did this conversation take 17 place? 18 A Well, as I say, I'm not sure that I 19 talked to him directly. I may have talked to 20 Tyrer at the time. I submitted a memo to the 21 Secretary suggesting the response, and I 22 believe Tyrer had told me that he didn't want 539 1 to respond. 2 Q Did you then ask Tyrer why didn't 3 he want to respond? 4 A No. No. I think Tyrer told me. I 5 gave you the explanation. 6 Q Did you say anything to Tyrer or 7 the Secretary of Defense, well, if you don't 8 respond, the public can take that as an 9 admission? 10 A No, I understood fully why he 11 didn't want to respond. 12 Q Now, based on your considerable 13 experience in the media, you are aware that 14 the public sometimes does draw that 15 conclusion when you don't respond, correct? 16 A I'm aware of many things, 17 Mr. Klayman, and I'm principally aware of the 18 fact that there was a very good reason not to 19 respond to this, that it would have called 20 much more attention to it than not 21 responding. 22 MR. KLAYMAN: I show you what I'll 540 1 ask the court reporter to mark as Exhibit 7. 2 (Bacon Deposition Exhibit No. 8 3 was marked for identification.) 4 BY MR. KLAYMAN: 5 Q Is this the article of Dick Morris 6 to which you're referring? 7 A Yes. 8 Q To this day, Mr. Bacon, to be 9 absolutely clear, no one, either the 10 Secretary or anyone else at the Department of 11 Defense, has ever responded to this article 12 by Dick Morris? 13 A We -- my attorney sent a letter to 14 Dick Morris and to the publisher of the 15 Washington Post about this article. 16 Q Did your attorney just tell you 17 that. 18 MR. MURPHY: New York. 19 THE WITNESS: New York Post. 20 BY MR. KLAYMAN: 21 Q Did your attorney just tell you 22 that? 541 1 A No, I believe we submitted that a 2 copy of that to you. 3 Q Now, were you authorized by 4 Secretary of defense Cohen to submit that 5 letter to the New York Post? 6 A No. 7 Q This is something you did 8 personally, correct? 9 A Yes. 10 Q And you didn't discuss that letter 11 with Secretary of Defense Cohen, Mr. Tyrer, 12 or anyone else at the Pentagon? 13 A Not that I recall, although I could 14 well have told Tyrer I was going to respond 15 through my attorney. 16 Q But you don't know of any public or 17 nonpublic response by Secretary Cohen himself 18 to this article by Dick Morris? 19 A That is correct. 20 Q Now, question number 2, what did 21 you tell Secretary Cohen in preparation for 22 another television show in April of 1998, 542 1 have you already testified to that? 2 A Yes, I have. 3 Q Question number 5, what did you 4 tell Secretary Cohen about the Tripp matter 5 in preparation for another television 6 interview? Is there any other television 7 interview that we haven't identified here 8 today, or have you testified as to all of 9 them? 10 A I think I've testified to all of 11 them. 12 Q Do you want to take time and double 13 check that -- 14 A Where are the -- do you have the 15 questions? There was an Evans and Novak 16 interview in April where I believe I gave him 17 basically the same advice, which is not to 18 answer the question but to say it's under 19 review by the IG. I believe you have a memo 20 to that that's in response to the subpoena. 21 Q How did you communicate with 22 Secretary Cohen such that you gave him that 543 1 advice? How was it done? 2 A That memo. 3 MR. KLAYMAN: Has this been 4 produced to Judicial Watch? We're not aware 5 of it. 6 MS. WEISMANN: My recollection is 7 that this was included as part of our initial 8 response to your first subpoena, and it's 9 another one in which our recollection is that 10 we successfully asserted the deliberative 11 process privilege that was upheld by the 12 court. 13 MR. KLAYMAN: Let's certify this. 14 We'll be moving for production of that. 15 BY MR. KLAYMAN: 16 Q Do you remember what was in that 17 memo, specifically? 18 A It was very similar to the other 19 memos where we basically talked about the 20 topics of the day, primarily base closings, 21 Iraq, and Kosovo and then at the very end 22 said you might get a Tripp question. If you 544 1 do, I recommend you say this is under 2 investigation by the IG and it's 3 inappropriate to discuss it. 4 Q Did you have any oral conversations 5 about that issue with Secretary Cohen? 6 A I do not recall that I did. 7 Q Did you have any conversations 8 after the interview with Secretary Cohen? 9 A No, the Tripp issue did not arise. 10 Q Are there any other TV or radio 11 interviews or any interviews of any nature 12 that you recollect having generated 13 discussions between you and Secretary Cohen 14 about Linda Tripp? 15 A No. 16 Q Question number 9, what did 17 Secretary Cohen do after you told the 18 Secretary that he should correct his 19 statement made on the television show that 20 mentioned only Bernath? Have you already 21 testified to that today? 22 A I have. 545 1 Q Is there anything else that you 2 haven't told us that would answer that 3 question? 4 A No. 5 Q Question number 10 -- 6 MS. WEISMANN: Mr. Klayman, I'm 7 sorry to interrupt your questions. I just 8 want to correct the record going back to the 9 April 27 through 30. In reviewing what you 10 passed out as Exhibit 5 to the previous Bacon 11 deposition, I don't see it listed, so it 12 appears that it is not a document that we 13 have claimed deliberative process privilege, 14 the Evans and Novak interview. I just want 15 the record to be clear on that. 16 MR. KLAYMAN: Perhaps at the break 17 you can also tell us whether you did in fact 18 claim deliberative process privilege on those 19 two other memoranda. 20 MS. WEISMANN: They appear to be 21 listed here as those that we did, yes. 22 MR. KLAYMAN: Can you tell me where 546 1 they were listed, what numbers? Is that 2 Exhibit 6? 3 MS. WEISMANN: You have the 4 documents. I don't have them with me today. 5 MR. KLAYMAN: I just want to see if 6 they're the same ones. 7 MS. WEISMANN: I understand. We 8 can do that at a break. 9 BY MR. KLAYMAN: 10 Q Question number 10, after Bacon 11 told Secretary Cohen that he should correct 12 the misimpression that the Secretary gave the 13 public about Bernath's role in release of the 14 Tripp information did the Secretary say that 15 he should issue a correction? 16 A He did not. 17 Q Question number 11, what did 18 Bernath write in a memorandum shown to Bacon 19 and given to the Department of Defense press 20 duty officer regarding how the department's 21 press office should respond to questions 22 about Mayer's article? 547 1 A I believe that there were two 2 memos. The first memo said that an 3 allegation had arisen about how Linda Tripp 4 had answered questions on a security form and 5 that she had answered that she had not been 6 arrested, that I said that that -- we should 7 not issue that memo as guidance to the duty 8 officer. Instead, we should have guidance 9 that was similar to what the Secretary was 10 going to say on Sunday, and that was the 11 guidance that, if true, this is a serious 12 allegation, and the Department of Defense has 13 established procedures for looking into this 14 and will follow those procedures. 15 Q Are there any press guidelines at 16 the Pentagon never to make a statement that's 17 hypothetical about someone? Are there any 18 procedures at the Pentagon as to whether that 19 should be done in the press office? 20 A I'm not aware of such a guidance. 21 Q For instance, would you issue a 22 statement that, just using this as a 548 1 hypothetical, if person so and so had killed 2 someone else, then it's a serious matter? Is 3 there anything to that effect that you can or 4 can't do that as press secretary? 5 A I'm not aware that there is 6 guidance like that, no. 7 Q Your testimony that you just 8 provided, was that with regard to the two 9 memoranda or just one? 10 A I believe that there were two. 11 Q We don't know of these two 12 memoranda being produced. Were they with- 13 held as well? 14 MS. WEISMANN: I don't know which 15 they are. I mean, we've either produced or 16 claimed privilege and been upheld for every 17 document that's responsive to your two 18 subpoenas. 19 MR. KLAYMAN: Well, in all due 20 respect and without trying to be 21 argumentative, it seems that key memoranda 22 that deal with questions that he's to answer 549 1 have never been produced. I'm asking you to 2 tell us whether they have or they haven't. I 3 understand you're going to assert a privilege 4 on them, anyway, but we'd like to get some 5 kind of indication as to whether they were 6 produced. 7 MS. WEISMANN: I'd be happy to 8 discuss this off the record, the issue of 9 document production. 10 MR. KLAYMAN: Well, put it on the 11 record. We would like to get from you within 12 a reasonable period of time -- if you can do 13 it at the break, fine, if not, within a 14 reasonable period of time thereafter whether 15 documents we've identified here today have 16 ever been produced and whether any such claim 17 has been asserted on them and whether the 18 court has sustained any such claim. Because 19 we need to know whether we have everything, 20 whether we have the full deck of cards, to 21 ask Mr. Bernath questions that the court 22 ordered him to answer. 550 1 MS. WEISMANN: Let me make it clear 2 on the record that I have not interposed any 3 objection to your asking Mr. Bacon today any 4 questions with respect to those documents. 5 MR. KLAYMAN: Well, I think you can 6 understand, Ms. Weismann, it's always helpful 7 to have the actual documents themselves. 8 MR. MURPHY: Mr. Klayman, I think 9 that one of the documents, at least, the 10 guidance memo that was issued, it appeared as 11 Bates stamp number 76 in Exhibit No. 5, which 12 was marked May of '98 in Mr. Bacon's -- 13 MS. WEISMANN: May of '99. 14 MR. MURPHY: No, May of '98, the 15 first deposition. 16 BY MR. KLAYMAN: 17 Q Well, let's see if Mr. Bacon can 18 identify that. 19 A Yes, I maybe should -- I don't know 20 -- this is certainly what Mr. Bernath showed 21 me. 22 Q But that's one memorandum, correct? 551 1 A Yes, and whether there was another 2 memorandum I don't know for a fact he said to 3 me this is what I propose we say, and I at 4 that point would have said to him -- whether 5 he said it to me or showed me something, I 6 would have said to him let's not say this. 7 Let's instead issue a statement that is 8 similar to this. 9 Q Well, you're referring to Bates 10 number 76, correct, at Exhibit 5 to your 11 first deposition on May 15, '98, correct? 12 A Correct. 13 Q Now, why was it that Mr. Bernath 14 was telling you and others to say it at the 15 Defense Department? 16 A I guess I don't understand that 17 question. Who said he was telling me what to 18 say? 19 Q Well, he's suggesting responses 20 here, isn't he? 21 A Well, as I pointed out to you, we 22 discussed the response, and this is the 552 1 response we came up with. 2 Q Who initiated the discussions of 3 what response to give? 4 A I don't know whether he did or I 5 did. I just can't recall. 6 Q At the time these discussions were 7 initiated, you were concerned about this 8 entire issue of releasing Tripp's 9 information, correct? 10 A Well, concerned in what way? 11 Q That you and Bernath had to get 12 your stories synchronized? 13 A I was concerned that whatever the 14 public affairs office put out over the week- 15 end was synchronized with what Secretary 16 Cohen was going to say on Sunday. I didn't 17 want the press guidance to differ from what 18 the Secretary was going to say. 19 Q Well, you and Bernath were 20 concerned and in fact you discussed that you 21 could be taking the blame for all of this, 22 and that's why you wanted to synchronize the 553 1 response? 2 A We did not discuss taking the blame 3 for this. That's a misreading of everything 4 I've said here. I never said that. 5 Q Did that ever cross your mind, that 6 you may be taking the blame for this? 7 A No, it did not at the time. Maybe 8 it should have but it did not. 9 Q Has it crossed your mind up to 10 today? 11 A Well, I'd have to be blind if it 12 hadn't crossed my mind, wouldn't I? 13 Q Has anyone ever told you from the 14 date of your last deposition to today that 15 you may be fired at the Pentagon? 16 A No. 17 Q No one's ever even raised the 18 issue? 19 A I'm the only person who has raised 20 the issue. 21 Q And who did you raise it with? 22 A We've testified to that already. 554 1 Q So you don't know whether there's a 2 second memorandum from Bernath? 3 A I do not. I recall a two-part 4 discussion. 5 Q So you think there are two 6 memoranda? 7 A There could be, but it could be 8 there's only one. 9 Q Next question, 12, does Bacon take 10 responsibility for Bernath's release of 11 Tripp's private information? 12 A I've answered that question but the 13 answer is again, to repeat, that Bernath and 14 I decided together to do this. We consulted 15 with no one else. 16 Q Is there one who's more culpable 17 than the other? 18 A I don't believe so. 19 MR. MURPHY: I object to the word 20 "culpable." Go ahead. 21 BY MR. KLAYMAN: 22 Q Number 13, did Bernath attain the 555 1 level of a political appointee? 2 A No. 3 Q And on what do you base your 4 response? 5 A Well, he's a member of the Senior 6 Executive Service, which is a job for civil 7 servants. He's a retired military officer 8 who became a civil servant in the general 9 schedule, GS, and moved to become an SES, 10 senior executive member of the Senior 11 Executive Service. 12 Q At your last deposition on May 15, 13 1998, you had already promoted him, correct? 14 A Well, he, I believe, was already a 15 member of the Senior Executive Service when 16 he worked as my principal deputy. 17 Q Has he received any other 18 promotions since that date? 19 A No. 20 Q Has he been demoted? 21 A No. 22 Q The actual question which was asked 556 1 on May 15, you can turn your attention to 2 page 182, at line 10: "Are you saying here 3 that Mr. Bernath has obtained a level which 4 is the equivalent of a political appointee"? 5 Is Mr. Bernath's position at the Pentagon the 6 equivalent of a political appointee in terms 7 of its grade and stature? 8 A Where is this? 9 Q Due to some inartful drafting, we 10 didn't get the exact question, but this 11 should be the question. 12 A What are you referring to? What 13 page, what line? 14 Q Page 182 of your first deposition, 15 line 10. 16 MR. MURPHY: I think it's 183. 17 THE WITNESS: You can see why I'm 18 confused. 19 BY MR. KLAYMAN: 20 Q Right. The actual question is, 21 "Are you saying that Mr. Bernath has obtained 22 a level which is the equivalent of a 557 1 political appointee?" 2 A No. 3 Q The question remains the same? 4 MR. MURPHY: The answer remains the 5 same. 6 THE WITNESS: The answer remains 7 the same. 8 BY MR. KLAYMAN: 9 Q The answer remains the same. Is 10 that correct? 11 A The answer is he's a member of the 12 Senior Executive Service, which is not a 13 political job. 14 Q However, you are aware that 15 Mr. Bernath was previously within the OSD/PA 16 organization and received a senior level 17 political appointment and then converted that 18 employment to a career civil service 19 position? 20 A Yes. As I told you, he's a retired 21 military officer who became a civil servant 22 and then during a period which was fully 558 1 disclosed in the last deposition or in 2 information you have went through a 3 transitional period under I think -- well, 4 Secretary Aspen was there -- and then became 5 a member of the Senior Executive Service. 6 Q But when he shifted over from 7 political appointee To Senior Executive 8 Service, that was not considered a demotion, 9 was it? 10 A I think it was a lateral move is my 11 -- it was a move to a permanent status. 12 Q So in terms of salary and status it 13 was the equivalent? 14 A I don't know what his salary was 15 before, I don't know what it was in 1998, and 16 I don't know what it is now. 17 Q You don't know if his salary has 18 been reduced, do you? 19 A I do not know. 20 Q And you don't know -- 21 A I testified I believe that the 22 salary was increased when he moved to the 559 1 American Forces Information Service, but I 2 don't know what it is. 3 Q So, actually, his new position was 4 more than the equivalent of what he had had 5 as a political appointee before? 6 A I never thought of him as a 7 political appointee. I thought of him as a 8 retired military officer who became a civil 9 servant. 10 Q But in fact his salary had 11 increased over what he was making an a 12 political appointee? 13 A I don't know what his salary was 14 then. I don't know what it is now. 15 Q Were there any duties or 16 responsibilities taken away from him when he 17 shifted from political appointee to career 18 civil service? 19 A I don't know. 20 Q So Mr. Bernath effectively was a 21 political appointee who burrowed into the 22 civil service with your assistance? 560 1 MS. WEISMANN: I object to the form 2 of the question. 3 MR. MURPHY: Objection. 4 THE WITNESS: That question has 5 been asked and answered before, and the 6 answer is no. 7 MR. KLAYMAN: We can take a break 8 now. I think I've gone through preliminarily 9 the questions. 10 THE VIDEOGRAPHER: We're going off 11 video record at 12:48. 12 (Whereupon, at 12:48 p.m. a 13 luncheon recess was taken.) 14 15 16 17 18 19 20 21 22 561 1 A F T E R N O O N S E S S I O N 2 (1:37 p.m.) 3 THE VIDEOGRAPHER: We're back on 4 video record at 1:37. 5 EXAMINATION BY COUNSEL FOR PLAINTIFFS 6 CONTINUED 7 BY MR. KLAYMAN: 8 Q Mr. Bacon, I appreciate your 9 cooperation here and your apologies for 10 getting here a little bit late. I don't 11 care, just so your counsel doesn't claim that 12 I've kept you here too long. 13 A No, no, I take full responsibility. 14 MR. KLAYMAN: Not joint 15 responsibility? I want to give you what I'll 16 ask the court reporter to mark as Exhibit 9, 17 and see if I can ask you some questions about 18 this. 19 (Bacon Deposition Exhibit No. 9 20 was marked for identification.) 21 BY MR. KLAYMAN: 22 Q These are documents produced on 562 1 behalf of you by the government lawyers, and 2 they span Bates numbers 1000 through and 3 including 1015. The first document, Bates 4 numbers 1000 and 1001 and 1002 and 1003 and 5 1004 and 1005, all appear to be the same 6 letter or e-mail that was sent to William 7 Cohen by representative Bob Barr. If you'd 8 like an opportunity to review these, that 9 would be fine. 10 A No. I saw them this morning. 11 Q Did you see these letters or e-mail 12 on or about their date, the date on them, May 13 22, 1998? 14 A I did not. 15 Q Did you become aware of them at 16 some point in time? 17 A I did not. 18 Q When was the first time you became 19 aware of them? 20 A This morning. 21 Q These letters start off by saying, 22 "I write to request the immediate dismissal 563 1 of assistant secretary Kenneth H. Bacon." 2 Did you ever discuss your dismissal with 3 Secretary Cohen? 4 A Yes, I did. 5 Q Is there anything that you didn't 6 testify to previously that you discussed with 7 him? 8 A No, there is not. I should revise 9 that. I never discussed my dismissal. As I 10 said, I said to him that my job was to solve 11 problems for him, not to create them, and if 12 I was a liability I was prepared to step down 13 if he felt that was the best thing. 14 Q Let's turn to the document 1006 15 from you, Ken Bacon, to Bob Tyrer and Jim 16 Jones, and the "RE:" has been redacted. Did 17 you play any role in redacting what is listed 18 opposite? 19 A I did not. 20 Q Do you know what was redacted? 21 A No, I don't. 22 Q It appears that the rest of the 564 1 document is redacted and it goes into 1008. 2 There are small portions on 1007 and 1008. 3 Did you play any role in redacting 4 information from the second and third pages 5 of this October 27, 1998, memo? 6 A I did not. 7 Q You did write this memo, did you 8 not? 9 A Yes, I did. 10 Q And do you know what was redacted? 11 Can you tell today what was redacted? 12 A I cannot. I don't recall the rest 13 of the memo. 14 Q Based on the date, October 27, 15 1998, does that refresh your recollection as 16 to what you discussed in this memo? 17 A I suspect it discussed Iraq. 18 Q At the bottom of the second page, 19 1007, it says, "Today's Drudge Report says 20 that you may be called to testify before the 21 grand jury looking into the release by me and 22 Cliff Bernath of information about how Linda 565 1 Tripp answered a question about her arrest 2 record on a security form." I'm now reading 3 on to 1008. "The report says that, 'In sworn 4 testimony, Bacon has explained that he 5 authorized the file dump and that Cohen knew 6 all about it.' In fact, I said exactly the 7 opposite, that you knew nothing about it. My 8 lawyer has contacted Drudge to correct this. 9 As I've said before, I think the prospects 10 that you'll be asked to testify in this 11 matter are about nil. Based on everything I 12 can learn, this part of Starr's investigation 13 is over. For one thing, Starr's authority 14 does not cover misdemeanors, which a 15 violation of the Privacy Act would be. In 16 addition, I've argued that I did not violate 17 the Privacy Act." 18 You did write that, did you not? 19 A Yes, I did. 20 Q And this memorandum was sent 21 directly to Secretary Cohen, correct? 22 A Yes, it was. 566 1 Q And you discussed this memorandum 2 with Secretary Cohen? 3 A I don't believe I did. 4 Q But you're not sure? 5 A Well, I frequently send him memos 6 that I don't discuss with him. I send the 7 memos in lieu of discussions with him 8 typically and don't expect to have 9 discussions about the memos, but without 10 knowing what the beginning of this memo 11 covered, I can't tell you whether I discussed 12 any other part of this memo with him or not 13 but I did not discuss this. This paragraph 14 you just read I did not discuss with him. 15 Q In sending this memo to Secretary 16 Cohen you were trying to refresh Secretary 17 Cohen's memory about the correct facts of 18 this Tripp incident, correct? 19 A Well, I think I was reporting on 20 the facts as I see them in response to an 21 inaccurate Drudge Report. That's pretty 22 clear. 567 1 Q Now, it states in this memorandum, 2 "The report says that, 'In sworn testimony, 3 Bacon has explained that he authorized the 4 file dump and that Cohen knew all about it.' 5 In fact, I said exactly the opposite, that 6 you knew nothing about it." Now, you had 7 previously discussed it, I take it, with 8 Secretary Cohen that you had testified that 9 Secretary Cohen knew nothing about this? 10 A I don't believe I had discussed it 11 with Secretary Cohen. I believe this refers 12 to my grand jury testimony, but I can't be 13 100-percent sure. That seems to be the 14 context. And this must have been based on a 15 garbled report of my grand jury testimony. 16 Because in my grand jury testimony, which is 17 public, and I suspect you've read, I make it 18 very clear that Secretary Cohen knew very 19 little bit about this. 20 Q In that grand jury testimony did 21 they ask you about whether your 22 communications were extensive, as you had 568 1 documented in a writing that we discussed 2 this morning? 3 A Well, I made a comment in a press 4 conference, and I don't recall that they 5 asked me about that particular comment at the 6 press conference. 7 Q Now, what you were trying to do was 8 to give Secretary Cohen some information so 9 he wouldn't say anything that contradicted 10 you, correct? 11 MS. WEISMANN: Object to the form. 12 MR. MURPHY: You can answer. 13 THE WITNESS: That's not correct. 14 BY MR. KLAYMAN: 15 Q Why is that not correct? 16 A I'm basically reporting to him on a 17 legal situation here. 18 Q Is that part of your duties as 19 press secretary, to report on the legal 20 situation? 21 A It's part of my duties to report on 22 legal situations that are misrepresented in 569 1 the press, as this was. 2 Q You state, as I have said before, 3 "I think the prospects that you'll be asked 4 to testify in this matter are about nil." 5 When had you told Secretary Cohen that his 6 prospects of testifying on the Tripp matter 7 were about nil? 8 A At some point, and I don't remember 9 when, either he or Tyrer had expressed some 10 concern that they could be called before a 11 grant jury, and I said that I thought the 12 chances were about nil. 13 Q How did you come to that 14 conclusion? 15 A In talking to my esteemed counsel. 16 Q And what did he tell you? 17 MR. MURPHY: Objection. You don't 18 have to answer. 19 MR. KLAYMAN: He just waived it. 20 MR. MURPHY: No, he didn't. 21 THE WITNESS: I already -- 22 MR. MURPHY: I advise you and 570 1 instruct you not to answer about any 2 communications that you had with me 3 concerning this subject, period. 4 MR. KLAYMAN: Certify it. 5 BY MR. KLAYMAN: 6 Q Did you get that information from 7 anywhere else? 8 A Not that I recall. 9 Q Did you get that information from 10 The White House? 11 A Of course not. I've told you many 12 times, Mr. Klayman, that I had never 13 discussed this issue with The White House. 14 Q Did you get that information from 15 lawyers for the Clintons? 16 A I don't believe I've ever had a 17 discussion with lawyers for the Clintons 18 about this issue. 19 Q Are you aware that your counsel 20 used to practice in the same law firm with 21 lawyers for the Clintons? 22 A I've read the newspapers, yes. 571 1 Q "Based on everything I can learn, 2 this part of Starr's investigation is largely 3 over." Where did you get that information? 4 A I got that from my discussion with 5 the U.S. Attorney, who interviewed me before 6 the grand jury. 7 Q Was that on the record or off the 8 record? 9 A I don't recall. 10 Q That U.S. Attorney, as you put it, 11 are you talking about one of Ken Starr's 12 prosecutors? 13 A Well, whoever it was that 14 questioned me, yes. 15 Q They told you that the Linda Tripp 16 matter was largely over? 17 A I deduced this from what I was 18 told, yes. 19 Q You were in fact trying to make 20 Secretary Cohen feel more secure about this 21 situation in this communication, correct? 22 MS. WEISMANN: Object to the form. 572 1 THE WITNESS: Do you have another 2 question? 3 BY MR. KLAYMAN: 4 Q That was your intention in 5 conveying this information? 6 A Do you have another question? 7 Q Yes, you can answer. 8 MR. MURPHY: You're allowed to 9 answer. 10 THE WITNESS: I was reporting to 11 him a series of events that included, one, an 12 inaccurate report on the Internet and, two, 13 my conclusions coming from the grand jury 14 appearance. 15 BY MR. KLAYMAN: 16 Q I understand that, but you were 17 also trying to make him feel more secure? 18 A Yes. He at one point had expressed 19 some concern that he might be dragged into 20 this with absolutely no reason, and so I was 21 trying to allay that concern. 22 Q When did he express that concern to 573 1 you? 2 A I don't recall. I said at some 3 point I had a discussion with either him or 4 Tyrer about this sometime in the fall 5 probably. 6 Q This is something that you've never 7 testified to before? 8 A That's true. 9 Q And I've asked you before to tell 10 me everything you discussed with him, and you 11 told me that you had. This is new, correct? 12 A You've never asked me about the 13 grand jury appearance before. 14 Q I asked you about all your 15 discussions with Cohen, correct? 16 A Yes, and I don't recall whether I 17 had a discussion with Cohen about this. 18 Q Well, you're saying -- 19 A As I've said, I don't recall 20 whether I did. It was either with Cohen or 21 Tyrer, but at some point I became aware of 22 the fact, either from the discussion with him 574 1 or with Tyrer, that he had a concern about 2 this. 3 Q And what specifically was said? 4 A I don't recall. 5 Q Now, if you'd had the discussion 6 with Tyrer, you would have sent this 7 memorandum to Tyrer, correct? 8 A I did. 9 Q But this memorandum is addressed 10 specifically to Secretary Cohen directly, 11 correct? 12 A That's because the press report 13 concerned him directly. 14 Q And who is Jim Jones? 15 A He is Secretary Cohen's military 16 assistant. 17 Q And he works in that office with 18 Secretary Cohen? 19 A He does. 20 Q Did you ever discuss the whole 21 Tripp incident with Jim Jones? 22 A Not that I recall. 575 1 Q But you may have? 2 A I don't believe I ever did. I 3 suspect I sent this to him because the bulk 4 of the memo dealt with a military issue that 5 was probably Iraq, just judging from the time 6 of the memo, the date of the memo. 7 Q Now, it was based on that concern 8 that Secretary Cohen could be implicated that 9 he didn't tell the truth on Fox News Sunday, 10 correct? 11 MR. MURPHY: Objection. 12 THE WITNESS: No, that's not true 13 at all. I have no idea what his concern was. 14 I think he felt that Starr was launching a 15 jihad and at some point he could get dragged 16 into it. 17 BY MR. KLAYMAN: 18 Q He used the word "jihad"? 19 A He did not. 20 Q It was based on a concern that he, 21 as a high-level political appointee Secretary 22 of Defense, could be tainted with this 576 1 release of Linda Tripp's information, 2 correct? 3 MS. WEISMANN: I object to the 4 form. 5 THE WITNESS: I think that's a 6 completely baseless assumption that I can't 7 respond to it. 8 BY MR. KLAYMAN: 9 Q Where did you learn that Starr's 10 investigation was largely over? 11 A I testified to that already. 12 Q From Starr's prosecutor? 13 A I told you I deduced that from what 14 he told me. 15 Q And what specifically did he tell 16 you? 17 A I told you I don't recall. 18 Q Have you received a target or 19 subject letter from the Independent Counsel? 20 MS. WEISMANN: I think this goes 21 well beyond the scope of what the court has 22 authorized, this discovery. 577 1 MR. KLAYMAN: I'm trying to get the 2 foundation of his deduction. 3 MR. MURPHY: But you're already 4 beyond the scope of Judge Lamberth's order, 5 so I don't think you have to answer that. 6 MR. KLAYMAN: I'm responding to 7 documents that you provided. I'm questioning 8 him on documents you've provided. 9 MR. MURPHY: You've asked your 10 questions about the documents. I don't think 11 he has to tell you what letters he received 12 from Ken Starr, if any. 13 BY MR. KLAYMAN: 14 Q Well, let me ask it a different 15 way. Certify it. Is it your understanding 16 that your activities are still under 17 investigation by the Office of Independent 18 Counsel? 19 A No. 20 MS. WEISMANN: I object to that 21 question. 22 MR. MURPHY: You can answer that. 578 1 The answer was no? 2 MR. KLAYMAN: He did. He said no. 3 BY MR. KLAYMAN: 4 Q Then you state, "For one thing, 5 Starr's authority does not cover 6 misdemeanors." Where did you learn that? 7 MS. WEISMANN: I object to this 8 line of questioning, and let me state for the 9 record that it's our position simply because 10 you've served us with a subpoena does not 11 mean every document we've produced in 12 response to that subpoena is subject to this 13 deposition. This deposition is governed by 14 the March 31 order. 15 MR. KLAYMAN: I agree and I'm 16 asking about communications with Secretary 17 Cohen which is clearly in the 31st order. 18 Please don't confer with the 19 witness. If you want to cross after it's 20 over, that's fine. 21 MR. MURPHY: Was there a question 22 pending? I'm sorry. 579 1 BY MR. KLAYMAN: 2 Q The question pending was where did 3 you get the information that Starr's 4 authority does not cover misdemeanors? Did 5 that come from Starr? 6 MR. MURPHY: You can answer. 7 THE WITNESS: I think it comes from 8 his charter, doesn't it? It covers felonies. 9 BY MR. KLAYMAN: 10 Q Did anyone tell you that? 11 A Yes. 12 Q Who did? 13 MR. MURPHY: You can answer the 14 question without disclosing the subject any 15 further of the discussions that you had if it 16 involves discussions with your counsel. 17 THE WITNESS: It came from 18 discussions with my counsel, and I believe 19 this fact is reflected in some of the letters 20 that we provided that my counsel has sent to 21 various news organizations in 1998. 22 BY MR. KLAYMAN: 580 1 Q Then you state, "In addition, I've 2 argued that I did not violate the Privacy 3 Act." Why were you telling Secretary Cohen 4 that, so you could keep your job? 5 A No. Whether or not I keep my job 6 is up to him, and he'll make that decision on 7 his own. 8 Q Did you tell him that so he could 9 state that if asked? 10 A No. I don't think he's ever been 11 asked that. 12 Q So as a whole was this 13 communication with Secretary Cohen intended 14 to tell the Secretary don't worry, you won't 15 be held responsible for what Cliff Bernath 16 and I did? 17 MS. WEISMANN: Object to the form. 18 BY MR. KLAYMAN: 19 Q Is that what you're trying to 20 convey? 21 A Here's the memorandum. Here's the 22 first page. See that? This is the second 581 1 page. See that? This is the third page. 2 Whatever this memorandum was about, this was 3 a very small part. It was largely about 4 something else entirely. 5 The point of the memorandum was to 6 report on whatever that other topic was, and 7 I suspect it was Iraq, and this was an 8 afterthought to bring him up to date on the 9 press event where his name had been misused. 10 Q Well, you were in fact intending to 11 tell the Secretary what your understanding 12 was so he could keep his story straight with 13 yours, correct? 14 MR. MURPHY: Objection. You can 15 answer. 16 THE WITNESS: No, I was writing 17 this memo to inform him. 18 BY MR. KLAYMAN: 19 Q Did Secretary Cohen ever respond to 20 this memo? 21 A Not that I recall. 22 Q He may have? You just don't 582 1 remember? 2 A We've already gone over this. I've 3 told you that I send him many memos to which 4 he does not respond. 5 Q Turning to the next memorandum of 6 May 19, 1998, again from you, Ken Bacon, to 7 Secretary Cohen, this one dedicated 8 exclusively to Linda Tripp, copy to Bob 9 Tyrer, Judy Miller. Who's Judy Miller? 10 A She's the general counsel. 11 Q Of the Department of Defense? 12 A That's correct. 13 Q Were you asked to send this 14 memorandum by either Mr. Tyrer or Ms. Miller 15 or Secretary Cohen? 16 A No. 17 Q Did you do this on your own 18 initiative? 19 A As I've told you earlier, I did. 20 Q And you did this after you read 21 Dick Morris' column that you identified this 22 morning, correct? 583 1 A That is correct. 2 Q Now, you state in the second 3 paragraph, "The Morris column is very 4 troubling because it falsely accuses you," 5 Secretary Cohen, "of lying"? 6 A That's not what it says. 7 Q Well, I'm adding the "Secretary 8 Cohen" part. You were talking to Secretary 9 Cohen, correct? 10 A Oh, yes, but I thought you were 11 reading from the sentence of the -- 12 Q No. I'm just trying to identify it 13 for the video. "The Morris column is very 14 troubling because it falsely accuses you of 15 lying." What was it about the Morris' column 16 that accused Secretary Cohen of lying? 17 MR. MURPHY: Object. You can look 18 at the column yourself, Mr. Klayman. 19 MR. KLAYMAN: Based on his 20 understanding. 21 THE WITNESS: I don't have the 22 column before me. 584 1 BY MR. KLAYMAN: 2 Q What exhibit number is that? 3 MR. FITTON: I think it's 7. 4 MR. MURPHY: It's 8. 5 MS. WEISMANN: It's the attachment, 6 also. 7 THE WITNESS: First of all, "Cohen 8 lied." It accuses him of lying. A little 9 hard to dodge that. It's the whole second 10 paragraph, and that is not correct. 11 BY MR. KLAYMAN: 12 Q Anything else not correct? 13 A Well, I'd have to reread the whole 14 column, and I think that's the major issue. 15 Q What's the major issue? 16 A The major issue is that Secretary 17 Cohen did not lie. 18 Q And then you go on in this 19 memorandum to tell Secretary Cohen why he 20 didn't lie, correct? 21 A Right. 22 Q And in fact you're trying to coach 585 1 Secretary Cohen so he would know what to say 2 if asked, correct? 3 A No. I was trying to give some 4 background to the column leading up to the 5 letter I was recommending that he send. 6 Q You stated in the second paragraph, 7 last sentence, "In fact, I stated that I had 8 not informed you about the release of the 9 information before it happened or for several 10 weeks after it happened." Do you stand by 11 that statement? 12 A Yes. 13 Q Now, Secretary Cohen already knew 14 this set of facts, correct, before you wrote 15 this memorandum of May 19, 1998? 16 A Which set of facts? 17 Q What you just stated, "In fact, I 18 stated I had not informed you about the 19 release of the information before it happened 20 or for several weeks after it happened"? 21 A Right, and I'm not sure I had 22 informed him at this time, that is, by April 586 1 26. That's the relevant date here is April 2 26, the date of the appearance on the Fox 3 show. 4 Q But by May 19, 1998, you had told 5 Secretary Cohen, before you wrote this 6 memorandum, the facts that I just read to 7 you? 8 A Yes, that's what I've testified. 9 Q So, therefore, it was not necessary 10 for you to restate those facts to him in this 11 memorandum? 12 A Well, Mr. Klayman, one writes memos 13 in a number of different ways, but I was 14 reemphasizing a point that I'd made before. 15 Q So what you were trying to do was 16 make sure that Secretary Cohen remembered the 17 facts correctly? 18 A No, I was trying to set the context 19 for the letter that I recommend you send to 20 Mr. Morris. 21 Q In this memorandum, you are telling 22 the Secretary I don't think there's a need to 587 1 respond to Morris, correct? 2 A I said left to my own devices I 3 would not respond but that he might want to 4 respond. 5 Q So, therefore, it wasn't necessary 6 for you to give this information to Cohen 7 since in your view there should be no 8 response, anyway? 9 A That's not what I said, and I don't 10 think you've read this memo completely. 11 Q I have read it completely. 12 A And what does it say in the 13 penultimate paragraph on -- 14 Q We'll get to that. 15 MR. MURPHY: Mr. Klayman's not 16 going to answer your questions, Mr. Bacon. 17 You have to answer his. 18 BY MR. KLAYMAN: 19 Q You then state in the third 20 paragraph, "Left to my own devices I would 21 not dignify Morris by responding to his 22 column even though it contains inaccurate 588 1 statements in almost every paragraph. If 2 asked about this at a briefing, I would say, 3 'Is that the same Dick Morris who gets a kick 4 out of sucking toes?' and move on." That's 5 your statement, correct? 6 A Yes. 7 Q Is that the kind of way you discuss 8 things with Secretary Cohen? Is it that 9 informal generally when you communicate with 10 him? 11 A I think it was an expression of my 12 anger about the column. 13 Q Did you ever tell Secretary Cohen 14 not to use that language? Is there anything 15 in writing to that effect? 16 A I never suggested that he use that 17 language. I said if asked about this in a 18 briefing I would say. I think you need to 19 read this. 20 Q Have you ever said that publicly? 21 A I have not. 22 Q Turning to the last page, you 589 1 state, "Morris gives such an inaccurate 2 account of my deposition on the release of 3 information that Tripp lied on a security 4 form that it is impossible to imagine that he 5 read what I said." Is that an accurate 6 statement? 7 A Yes. I'm sorry. I misspoke about 8 this. You're absolutely right. This is a 9 letter that I recommend that I send to defend 10 the Secretary, not to defend me. The 11 Secretary decided that I should not send this 12 letter. 13 Q How did he convey that to you? 14 A I don't think he conveyed it to me 15 directly. I think Judy Miller conveyed it to 16 me, the general counsel. 17 Q But Judy Miller told you that was 18 the Secretary's instruction, don't send the 19 letter? 20 A That is my recollection. 21 Q What else did she say? 22 MS. WEISMANN: I object at this 590 1 time. 2 MR. KLAYMAN: It's waived. 3 MS. WEISMANN: No, it's not and 4 it's my privilege to waive, the government's 5 privilege to waive, and not his. 6 MR. KLAYMAN: Certify it. 7 BY MR. KLAYMAN: 8 Q She told you not to send it because 9 it wasn't accurate, correct? 10 MS. WEISMANN: I object to the 11 question. Same privilege. 12 MR. KLAYMAN: Certify it. 13 THE WITNESS: She never questioned 14 the accuracy of the letter. 15 MR. KLAYMAN: Waived. 16 MR. MURPHY: The government is 17 taking the position that your conversations 18 with Ms. Miller are protected by the 19 attorney-client privilege, so you should not 20 discuss -- 21 THE WITNESS: This allows him to 22 make outrageous statements on the record that 591 1 should not go unchallenged. 2 BY MR. KLAYMAN: 3 Q I'll show you what -- 4 MR. MURPHY: Sometimes there's 5 little we can do about that. 6 MR. KLAYMAN: I'll show you what 7 I'll ask the court reporter to mark as 8 Exhibit 10. 9 (Bacon Deposition Exhibit No. 10 10 was marked for identification.) 11 BY MR. KLAYMAN: 12 Q This is a document produced by your 13 counsel today in response to the subpoena 14 which is Exhibit 1 requiring your attendance 15 on May 24, 1999. It's a letter which your 16 counsel wrote to Matt Drudge of the Drudge 17 Report dated October 28, 1998, two pages. 18 Have you ever seen this document before? 19 A Yes, I have. 20 Q Did you see it before it was sent 21 by your counsel? 22 A I saw a draft. 592 1 Q I'm sorry. I didn't hear you. 2 A I saw a draft. 3 Q Did you write this? 4 A I did not. 5 Q The first draft? 6 A I did not. 7 Q It says in paragraph 2, "In a 8 deposition given in one of Larry Klayman's 9 many suits against the Clinton 10 Administration, Mr. Bacon testified very 11 clearly that Secretary Cohen did not know 12 about Mr. Bacon's involvement in the release 13 of the Tripp information until after the 14 Secretary responded the reporter's suggestion 15 that Clifford Bernath release the 16 information." Is that accurate? 17 A Yes. 18 Q "Mr. Klayman posts his deposition 19 on the Internet (www.judicial watch.org) 20 where they are readily available to 21 technophiles such as yourself. I suggest you 22 read pages 355 and 356 of Mr. Bacon's 593 1 deposition." Did you give that information 2 to your counsel? 3 A No. 4 Q Then it says, "Mr. Bacon was not 5 questioned at all about Secretary Cohen's 6 knowledge of the release of information 7 concerning Ms. Tripp before the federal grand 8 jury in Alexandria, Virginia." Are you 9 referring to the Starr grand jury, Judge 10 Starr's? 11 A Yes. 12 Q Is that an accurate statement? 13 A I believe so, yes. 14 Q So you were never questioned by 15 Kenneth Starr about the issue of whether 16 Secretary Cohen had knowledge of the release 17 of information from Ms. Tripp's files? 18 A That is correct. 19 Q Have you ever been questioned about 20 that by the inspector general of the Defense 21 Department? 22 MS. WEISMANN: I'm going to object 594 1 to that question and instruct him not to 2 answer. 3 MR. MURPHY: Don't answer. 4 MR. KLAYMAN: Certify it. 5 I'll show you what I'll ask the 6 court reporter to mark as Exhibit 11. 7 (Bacon Deposition Exhibit No. 11 8 was marked for identification.) 9 BY MR. KLAYMAN: 10 Q Mr. Bacon, this is a document which 11 you produced through your personal counsel 12 this morning. It consists of a cover letter 13 of May 28, 1998, addressed to special agent 14 Patrick Fallon, law offices of Murphy & 15 Shaffer, signed by your counsel, William J. 16 Murphy, two pages, and it attaches a 17 transcript of your testimony before the 18 inspector general, correct? 19 A Yes. 20 Q Is this the only time that you 21 testified under oath to the inspector 22 general? 595 1 A Yes, it is. 2 MR. KLAYMAN: Do you wish to 3 withdraw your objection? 4 MS. WEISMANN: My objection was 5 based on it's beyond the scope of what this 6 court has authorized. The court's order of 7 March 31 is very clear, and I think we all 8 agreed before we took the break that you had 9 finished your questions based on what the 10 court had ordered. I think this goes beyond 11 the subject matter that the court very 12 specifically laid out in its March 31 order, 13 so no, I do not withdraw my objection. 14 MR. KLAYMAN: We'll certify it, but 15 this was produced in conjunction with this 16 deposition, and we all knew what the 17 questions were going to be. 18 MS. WEISMANN: Mr. Klayman, I made 19 my position earlier -- 20 MR. KLAYMAN: Can I finish? 21 MS. WEISMANN: I'm sorry. I 22 thought you had. 596 1 MR. KLAYMAN: And this is testimony 2 which relates to testimony this morning. I 3 just want to confirm that the corrections 4 made on this testimony are your own, 5 Mr. Bacon. I see that on the transcript 6 there are certain corrections here? 7 MR. MURPHY: Mr. Klayman, I can 8 explain. Those are my corrections based on 9 my discussion with Mr. Bacon. There is 10 another copy of this document which we've 11 produced subsequently which is the version 12 which contains Mr. Bacon's own handwritten 13 notes, and that was in the other package of 14 materials. 15 MR. KLAYMAN: But is there anything 16 in here, Mr. Murphy, that you've written that 17 you put in on your own without the direction 18 of your client? 19 MR. MURPHY: No, I think they're 20 identical. 21 MR. KLAYMAN: So it's your 22 handwriting that's in here? 597 1 MR. MURPHY: My handwriting is on 2 this version. 3 BY MR. KLAYMAN: 4 Q After we go beyond this transcript 5 with Mr. Murphy's handwriting, there is a 6 letter of May 22, 1998 to Mr. Ken Chandler, 7 editor of the New York Post, and Jan F. 8 Constantine, senior Vice President of the 9 News Corporation, New York, New York, spans 10 Bates numbers 41 through 44 and in fact other 11 than the cover letter, which I identified for 12 Mr. Murphy with regard to the correspondence 13 with special agent Fallon, that spanned Bates 14 numbers 1 through 40, correct? 15 A Yes. 16 Q The letter which your counsel, 17 Mr. Murphy, wrote to Mr. Chandler and 18 Mr. Constantine, did you have an opportunity 19 to review that letter before it was sent? 20 A Yes, I did. 21 Q Is it accurate? 22 A To the best of my recollection. 598 1 I've not reviewed it at this time, but I'm 2 sure it's accurate. 3 Q Other than sending this letter, has 4 your counsel ever corresponded with 5 Mr. Morris directly? 6 A Not that I'm aware of. 7 Q Have you? 8 A Sorry? 9 Q Have you corresponded with 10 Mr. Morris? 11 A No. 12 Q Has anyone threatened a lawsuit 13 against Mr. Morris? 14 A Has anyone? 15 Q That you know of, based upon this 16 article that's being discussed in this letter 17 of May 22, 1998. 18 A No. 19 Q Did you ever get a response from 20 the New York Post to this letter? 21 A No. 22 Q Has anyone ever followed up to 599 1 demand a response? 2 A Not I. 3 Q Has any part of Mr. Morris' article 4 ever been retracted or corrected? 5 A Not that I'm aware of. 6 MR. KLAYMAN: I'll show you what 7 I'll ask the court reporter to mark as the 8 next exhibit, Exhibit 12. 9 (Bacon Deposition Exhibit No. 12 10 was marked for identification.) 11 BY MR. KLAYMAN: 12 Q Exhibit 12 consists of a cover 13 letter of July 13, 1998, to James M. Crane, 14 Esquire, Associate Independent Counsel, 15 regarding grand jury appearance of Kenneth H. 16 Bacon, signed by William Murphy, one page, 17 and behind that is a letter to yourself from 18 Donald M. Horstman, Director of Program 19 Integrity, Inspector General, Department of 20 Defense. That is Bates number 45. And 21 behind that is a transcript which goes up to 22 and including Bates number 85; is that 600 1 correct? 2 A That is correct. 3 Q And it is this transcript that 4 contains your notations rather than your 5 lawyer's notations of things that you believe 6 should have been corrected in the transcript, 7 correct? 8 A These are my notations. 9 Q Do those notations correspond with 10 what Mr. Murphy had written into his 11 transcript? 12 A I believe so, but I have not done a 13 side-by-side analysis since sometime last 14 year. 15 Q Do you remember at this time any 16 differences? 17 A I do not. 18 Q Let's turn to the letter which 19 follows that to Donald Horstman, Director of 20 Program Integrity, Office of Inspector 21 General, dated June 2, 1998. It is a letter 22 written by your counsel, Mr. Murphy. It goes 601 1 through and including from Bates number 86, 2 number 91. 3 Did you direct your counsel, 4 Mr. Murphy, to prepare and send this letter? 5 A Yes, I did. 6 Q Did you review the letter before it 7 was finalized and sent? 8 A Yes. 9 Q Is there anything in this letter 10 which is untrue or inaccurate? 11 A Not that I'm aware of. 12 Q And you did have an opportunity to 13 review the letter before it was sent? 14 A Yes, I did. Well, I reviewed a 15 draft. 16 Q Have you since seen the final 17 version that was actually sent? 18 A It's right here. 19 Q Before today? 20 A Yes. 21 Q And did you review it? 22 A I reviewed it last year. 602 1 Q And did you inform Mr. Murphy as to 2 whether you found inaccuracies in it? 3 A I did not. 4 Q You did not find inaccuracies? 5 A I did not inform him that I found 6 inaccuracies. 7 Q But you know of no inaccuracies? 8 A That is correct. 9 Q And turning to page 1, it says, "As 10 I understand it, both Mr. Bacon and 11 Mr. Bernath had some concerns over the 12 possibility that the information requested by 13 Ms. Mayer might implicate the Privacy Act." 14 That is correct, is it not? 15 A That is correct. 16 Q And in fact you had those concerns 17 from the very first moment that Jane Mayer 18 called you and asked you for the information 19 which was released? 20 MS. WEISMANN: I'm going to object 21 at this point. Again, I think this goes well 22 beyond the limited subject matter that the 603 1 court's order of March 31 authorized. 2 MR. MURPHY: It also rehashes 3 material that was covered at great length in 4 May of 1998. 5 MR. KLAYMAN: We never had this 6 document before. 7 MR. MURPHY: It's the same 8 question. 9 MS. WEISMANN: My objection stands. 10 MR. KLAYMAN: Are you instructing 11 him not to answer? 12 MR. MURPHY: You can answer. 13 THE WITNESS: I think I dealt with 14 this a year ago. I answered these questions 15 a year ago. 16 BY MR. KLAYMAN: 17 Q You have nothing more to add? 18 A I do not. 19 Q Did you approve before the letter 20 was sent the legal positions being taken by 21 your counsel in this letter? 22 A I approved everything in this 604 1 letter. 2 Q Is it your position that because 3 the information about Linda Tripp could have 4 been obtained from other sources other than 5 the Pentagon that therefore you and 6 Mr. Bernath did not violate the Privacy Act? 7 MR. MURPHY: Objection. I think 8 you're calling for him to give a legal 9 conclusion, and although Mr. Bacon authorized 10 the letter it's my letter, not his letter. 11 MR. KLAYMAN: Are you instructing 12 him not to answer that? 13 MR. MURPHY: Yes, I think on that 14 legal conclusion. 15 MR. KLAYMAN: Certify it. 16 BY MR. KLAYMAN: 17 Q This relates to a question that I 18 was intending to ask you this morning, but 19 let me ask it to you now on some of these 20 logs that Cliff Bernath produced in this 21 case. You've reviewed some of them, correct? 22 A Well, I reviewed what you showed me 605 1 this morning. 2 Q Right. There is a reference to 3 W.H.S. in caps. Does that stand for white 4 house security? 5 A No, it does not. 6 Q What does it stand for? 7 A Washington Headquarters Services. 8 Q What is that? 9 A That is a division of the Pentagon 10 that basically administers the Pentagon, the 11 Pentagon reservation, 283 acres of parking 12 areas, buildings, service buildings, et 13 cetera, and Washington Headquarters Services 14 is the organization that sort of runs that 15 operation on a day-to-day basis. 16 Q Do you have any information with 17 regard to a response that was made to 18 Congressman Mica? 19 A I do not. 20 Q You know that Congressman Mica did 21 request information about this Tripp 22 incident? 606 1 A I actually learned that, I believe, 2 for the first time today. 3 Q Have you ever seen documents that 4 state that there was a meeting with the 5 Secretary of Defense in an hour and that he 6 wished to have information about the Tripp 7 release as soon as possible? 8 A I have not seen that. 9 Q Are you aware of any such 10 information? 11 A No, I am not. 12 Q Are you aware of any instance where 13 Secretary Cohen's office, either he or 14 someone acting on his behalf or out of that 15 office, requested information quickly about 16 the Tripp matter? 17 A No. 18 Q For use at a meeting? 19 A No. 20 Q Referring to Bates numbers 93 of 21 this Exhibit 12 that I've just shown you, do 22 you see that? 607 1 A Yes. 2 Q And this is going to Mr. Horstman 3 of the inspector general. Did you see this 4 letter by Mr. Murphy before it was sent to 5 Mr. Horstman? It refers to a Washington 6 Times article? 7 A Yes, I did. 8 Q Did you authorize it? 9 A Yes, I did. 10 Q And looking behind that, Bates 11 numbers 94 and 95, a letter to Wesley Pruden 12 signed by your counsel on June 9, 1998, did 13 you have an opportunity to review that letter 14 before it was sent to Wesley Pruden? 15 A Yes, I did. 16 Q Did you approve those contents? 17 A Yes, I did. 18 Q Is there anything in it which is 19 inaccurate? 20 A No. 21 Q Bates numbers 96 and 97 are simply 22 another copy of this letter which is 94 and 608 1 95, correct? 2 MR. MURPHY: That's what it is. 3 BY MR. KLAYMAN: 4 Q And Bates number 98 is a letter 5 which was sent by your counsel to Mr. Bill 6 Sammon on June 11, 1998? 7 A Yes. 8 Q Did you see a copy of before it was 9 sent? 10 A Yes, I did. 11 Q In that letter it states, "Let me 12 put this in words all of one syllable so you 13 can follow: 'No one gave Jane Mayer any 14 files on Linda Tripp.'" Is that your 15 language? 16 A No. 17 Q Whose language is that? 18 A Well, the letter's signed by 19 William J. Murphy. It's his language. 20 Q So you don't stand by that 21 statement? 22 A I do but it's not my language? 609 1 Q You don't speak in one syllable? 2 A Yes. 3 MR. MURPHY: Try him. 4 BY MR. KLAYMAN: 5 Q Did you approve writing an 6 insulting letter to Mr. Sammon? 7 MR. MURPHY: Objection. 8 BY MR. KLAYMAN: 9 Q You can respond. 10 MR. MURPHY: You can answer that. 11 THE WITNESS: I don't believe this 12 letter is insulting, if that's what you're 13 asking me. For a judgment of this letter, I 14 wouldn't apply "insulting" to this letter. 15 BY MR. KLAYMAN: 16 Q There's a memorandum of June 8, 17 1998, behind it, Bates numbers 100 through 18 1106. Did you ever see this memorandum 19 before? 20 A Yes, I did. 21 Q Is there anything in this 22 memorandum which is inaccurate? 610 1 A No. 2 Q Was this memorandum seen by you 3 before the letter was written to Donald 4 Horstman which appears first page at Bates 5 number 86? 6 A I can't recall whether it was or it 7 wasn't. 8 Q Do you have an opinion as to 9 whether this memorandum forms the basis of 10 the letter which appears at Bates number 86 11 and dated June 2, 1998, from Mr. Horstman to 12 Mr. Murphy? 13 MR. MURPHY: Just to correct the 14 letter, Mr. Klayman, I think the letter to 15 Mr. Horstman was an earlier version and that 16 the memorandum that appears at page 100 and 17 following is a subsequent shorter version of 18 the legal analysis but that was prepared 19 subsequently. 20 BY MR. KLAYMAN: 21 Q Now, turning to Bates number 104, 22 fax from Kenneth Bacon to Ms. Soler of Time 611 1 magazine, June 25, 1998, "I'm enclosing the 2 letter dated June 18, 1998, and attached 3 memorandum requested by Walter Isaacson -- 4 MR. MURPHY: That fax is from me, 5 not from Mr. Bacon. 6 BY MR. KLAYMAN: 7 Q It's concerning Mr. Bacon. Who is 8 Walter Isaacson? 9 A He is an editor of Time magazine. 10 He may be the managing editor of Time 11 magazine. 12 Q And attached to that cover page of 13 the fax are documents 105 and 106 on Time 14 Magazine stationery dated June 26, 1998. 15 "Via facsimile John J. Connolly, Murphy & 16 Shaffer, Baltimore, Maryland. Is this the 17 same document, 105 and 106? 18 MR. MURPHY: No. 19 BY MR. KLAYMAN: 20 Q I take it not, correct? 21 MR. MURPHY: They're slightly 22 different. 612 1 BY MR. KLAYMAN: 2 Q What is this document, 105? What 3 is it you understand Time magazine was 4 communicating with your counsel about? 5 A Time magazine printed a 6 clarification of the story, and this is a 7 draft, if not the actual language, of the 8 clarification. I'd have to know which one. 9 It looks to me as if this is the first 10 version and they sent a second version on the 11 29th. 12 Q I take it it was with regard to a 13 story entitled "Starr's Fellow Traveler," 14 June 22 edition of Time? 15 A Right. 16 Q Correct? 17 A Yes. 18 Q And in that article they were 19 talking about me and Judicial Watch and 20 matters relating to you and the Department of 21 Defense, correct? 22 A I don't recall the article. 613 1 Q Did you initiate the communication 2 with Time magazine that gave rise to this 3 clarification? 4 A I can't recall whether I did or my 5 attorney did. 6 MR. MURPHY: I think it's page 99. 7 MS. WEISMANN: I'm missing that. 8 There's no 99. 9 MR. KLAYMAN: There's no 99. Good 10 point. We don't have a 99. 11 MR. MURPHY: The original exhibit 12 has a 99. 13 MR. KLAYMAN: Maybe we can make a 14 copy and insert it. 15 THE WITNESS: It's a letter to the 16 editor of the magazine who wrote a letter 17 about you in Time. 18 MR. KLAYMAN: Can I see that and 19 we'll get a copy and attach it to this 20 exhibit? We'll take a two-minute break. 21 THE VIDEOGRAPHER: We're going off 22 video record at 2:27. 614 1 (Recess) 2 THE VIDEOGRAPHER: We're back on 3 video record at 2:29. 4 BY MR. KLAYMAN: 5 Q Bates number 99, which was left 6 out, did you see that letter before it was 7 sent to Time magazine? 8 A Yes. 9 Q June 18, 1998? 10 A Yes. 11 Q Is it accurate? 12 A Yes. 13 Q And did Time magazine ultimately 14 print the clarification set forth at Bates 15 number 105? 16 A I believe so. I think they may 17 have -- if they did print a clarification, 18 I'd have to compare exactly what they 19 printed, but if they printed -- the one they 20 printed is more likely to be 106 rather than 21 105. 22 Q But you're not sure? 615 1 A Well, I'm quite sure that they 2 printed a clarification and that they would 3 have printed the later one rather than the 4 earlier one, but maybe they made a change 5 beyond this. 6 Q Did you ever have any conversations 7 with persons at Time magazine about any 8 matter related to that article? 9 A No. 10 Q "Starr's Fellow Traveler"? 11 A No. 12 Q Did you ever have any conversations 13 with anyone at Time concerning the release of 14 Tripp's information generally? 15 A I did not. 16 Q This morning I was going to ask all 17 the questions before we took a break, and I 18 inadvertently did not ask four, but we may 19 have covered much of that this morning. 20 A Question four? 21 Q No, I didn't ask four questions 22 this morning. 616 1 MR. MURPHY: I think we've covered 2 this. 3 MR. KLAYMAN: We may have, but none 4 of our crack team of lawyers here picked up 5 on that. So we'll discuss that later. 6 THE WITNESS: I want you to feel 7 completely satisfied, so why don't you run 8 through the four questions you don't think 9 you asked, and we'll try to dispose of them 10 quickly. 11 BY MR. KLAYMAN: 12 Q Number 17, why was Bernath's 13 involvement revealed when according to Bacon 14 it is not necessary to give the public all 15 the facts now because the Department of 16 Defense's inspector general is still 17 investigating the release? 18 A First you have to go back to the 19 question that was asked. We're talking about 20 April 26, the Fox News program, in 1998. He 21 was asked a specific question. It was 22 Clifford Bernath, wasn't it, I believe was 617 1 the question, and he responded yes. My 2 advice to him had been not to answer any 3 questions about this, to say only that the IG 4 was investigating it and that when the IG 5 investigation was complete would be the 6 appropriate time to discuss it. That was my 7 advice to him and continues to be my advice 8 to him, as it is every time we have an IG 9 investigation that's looking into the facts 10 of the case. 11 Q Well, has he said to you any time 12 since the date of your last deposition, Ken, 13 is it time now to start talking about this, 14 anything to that effect? 15 A No. The IG investigation is not 16 complete, as far as I know? 17 Q Do you know when it will be 18 complete? 19 A I do not. 20 Q Has anyone told you that? 21 A No. 22 Q Number 18, what did Bacon say to 618 1 Secretary Cohen's chief of staff about the 2 Secretary's statement to the public that only 3 mentioned Bernath as being responsible for 4 the release? 5 A I think we've covered that. 6 Q Was there anything else that was 7 discussed that you have not testified to? 8 A Not that I recall, no. 9 Q Number 19, did Bacon discuss his 10 involvement in the Tripp release with 11 Mr. Tyrer, Secretary Cohen's chief of staff, 12 before Secretary Cohen made his statement on 13 Fox News Sunday? 14 A We already discussed the 15 conversation I had with Mr. Tyrer in March, 16 and that would have been, I believe, the only 17 conversation I had with him on the specifics. 18 There could have been another one between 19 March 18 and April 26, but I don't have any 20 recollection of it. I'm not ruling out that 21 there was something, but I don't have any 22 recollection of it. 619 1 Q Nineteen, did Bacon discuss his 2 involvement in the Tripp release -- I think I 3 just read you that one. 4 A Yeah. 5 Q Twenty-one, did anyone discuss with 6 Bacon the likely result of the ongoing 7 investigations of the release of Ms. Tripp's 8 information? 9 A That is -- 10 MR. MURPHY: Exclude from that your 11 personal legal counsel. 12 THE WITNESS: I have had no 13 discussions about the IG investigation beyond 14 what I've discussed with my attorney. 15 BY MR. KLAYMAN: 16 Q Is there any kind of discussion at 17 the Department of Defense with persons other 18 than your counsel where they have rendered an 19 opinion as to what that result's likely to 20 be? 21 A No. 22 Q Have you made inquiry in the last 620 1 several months since you've been deposed with 2 anyone other than your counsel as to when 3 that IG investigation will conclude? 4 A No. 5 Q Is that a consideration at the 6 Pentagon, that the IG investigation 7 concerning the Tripp release not conclude 8 during the war in Kosovo? 9 A I've never heard anybody bring that 10 up. 11 Q You're aware that the IG report was 12 initially due in July of 1998? 13 A I have no idea when it was due. 14 Q You knew it was due before today, 15 though, correct? 16 A If I had no idea when it was due, I 17 guess I didn't know it was due before today. 18 Q Have you made any contingency plans 19 for alternative employment in the event that 20 report is not favorable to you? 21 A I have not. 22 Q Do you know whether anyone else 621 1 has, such as Mr. Bernath? 2 A Made contingency plans for me? 3 Q For them. 4 A No, I have no idea. 5 Q My colleague, Mr. Fitton, reminds 6 me that with regard to question 18 it's his 7 recollection and it's also my recollection 8 that we didn't really get any testimony from 9 you about that question. We did have a 10 discussion about your conversation with 11 Mr. Tyrer, but this question specifically 12 asks what did Bacon say to Secretary Cohen's 13 chief of staff about the Secretary's 14 statement to the public that only mentioned 15 Bernath as being responsible for the release. 16 Did you ever discuss with Mr. Tyrer the fact 17 that Secretary Cohen only named Bernath as 18 the person responsible? 19 A At some point, yes, but I don't 20 recall when. 21 Q Can you give us a rough estimate? 22 A I cannot. 622 1 Q What was discussed? 2 A I really don't have much 3 recollection. I mean, all these 4 conversations sort of run together after a 5 while. 6 Q Did Tyrer ever express to you a 7 desire to have this corrected, Secretary 8 Cohen's statement corrected? 9 A Not that I recall. 10 MR. KLAYMAN: I have no further 11 questions. Thank you, Mr. Bacon. 12 (Whereupon, at 2:37 p.m., the 13 deposition of KENNETH BACON was 14 adjourned.) 15 * * * * * 16 17 18 19 20 21 22