101 1 Did these meetings occur before you 2 were offered the job or after? 3 THE WITNESS: I was -- well, I was 4 told by Deputy Secretary Deutch in early July 5 that I was Secretary Perry's candidate for 6 the job and that the next step was for me to 7 talk to some people at the White House, and 8 that's what happened when he told me that 9 Margaret Sullivan would call me to arrange 10 some appointments and she did call me in the 11 next week or so to arrange those 12 appointments. 13 BY MR. KLAYMAN: 14 Q These are the appointments you just 15 testified to? 16 A Yes, they are. 17 Q So those appointments were arranged 18 after you were offered the job? 19 A Yes. 20 Q They weren't interviewing you? 21 A I guess they should characterize 22 what they were doing. I was asked to meet 102 1 these people. I went over and met the people 2 and they asked me the questions we discussed. 3 Q But did those questions occur 4 before or after you accepted employment at 5 the Pentagon? 6 A Well, my understanding of the 7 process to the extent it was ever explained 8 to me was that I was Secretary Perry's 9 candidate for the job and that I had to be 10 vetted by some people at the White House and 11 then I had to go through a whole series of 12 tests. I had to be checked out by various 13 government agencies, the FBI and others, and 14 if everything turned out okay, I would end up 15 getting the job and that's, in fact, what 16 happened. 17 Q Did you talk to anybody else in the 18 Clinton Administration besides the people 19 you've just mentioned? 20 A Not that I can recall. 21 Q You don't remember? 22 A I don't believe I talked to anybody 103 1 else. 2 Q I take it that you did, then, talk 3 with the FBI with regard to security 4 clearances, correct? They conducted an 5 interview? 6 A Yes. But, actually, I'm not sure 7 they interviewed me until after I actually 8 arrived at the Pentagon. 9 Q You were already on the job when 10 they interviewed you? 11 A I believe that to be the case. 12 Q You understood that they were 13 interviewing you to be able to do a security 14 check? 15 A I believe that was part of it, yes. 16 Q Who did you meet with from the FBI? 17 A I don't know. I don't recall. 18 Q Up to the point that you took your 19 job at the Pentagon, you had learned in the 20 course of your duties and responsibilities 21 about the Privacy Act, did you not? 22 A No. 104 1 Q You had never heard of it before? 2 A Well, I had heard of the Privacy 3 Act, yes. 4 Q What did you understand the Privacy 5 Act to be? 6 A I never really thought about it too 7 much. It hadn't been a factor in any stories 8 I had written. 9 Q But you knew of an existence of the 10 Privacy Act? 11 A I knew that there was such a thing. 12 Q You understood that the Privacy Act 13 protected certain information that's provided 14 to the Federal Government, correct? 15 A Yes, but I knew a little more than 16 that. 17 Q You knew that the Privacy Act would 18 apply to information out of personnel files, 19 correct? 20 A I don't think I knew much about the 21 Privacy Act. 22 Q My question was you knew that the 105 1 Privacy Act applied to information in a 2 government employee's personnel file, 3 correct? 4 A I don't think I really even knew 5 that about the Privacy Act. 6 Q What did you know about the Privacy 7 Act? Nothing? 8 A Well, I knew it existed. I knew 9 the general thrust of it and that's about it. 10 Q You had dealt with financial 11 matters at the Wall Street Journal, correct? 12 A Yes, I had. 13 Q You knew that the government, in 14 the course of your duties at the Wall Street 15 Journal, sometimes gathered financial 16 information from private companies and that 17 information was kept confidential under 18 certain circumstances, correct? 19 A Certainly in terms of merger 20 negotiations, next. 21 Q You understood that income tax 22 files are confidential? 106 1 A Yes. 2 Q You understood that when a company 3 submits information to the government which 4 the government requests dealing with its 5 finances, that's general kept confidential, 6 correct? 7 A Yes. 8 Q You had contact with people that 9 were employed by the Federal Government in 10 your many years as a reporter for the Wall 11 Street Journal? 12 A That is true. 13 Q Were you ever able to obtain 14 information out of personnel files of anyone 15 during the period you were with the Wall 16 Street Journal? 17 A I don't believe I ever tried to. 18 Q You never tried to because you knew 19 you could not get it, correct? 20 A I don't think I had to. I don't 21 think the need arose. 22 Q As a matter of common sense, when 107 1 you began your work at the Department of 2 Defense you understood that what was in your 3 personnel file would be confidential, 4 correct? 5 A I was not briefed on that and I 6 don't think I thought about it, one way or 7 another. 8 Q Does that make sense to you, 9 Mr. Bacon, that what's in your personnel file 10 is confidential, just as a matter of common 11 sense. 12 A I just said that I never really 13 thought about it in any great deal of 14 specificity, and I did not do it when I 15 joined the government. 16 Q Well, I'm asking you right now. As 17 a matter of common sense, isn't it your 18 understanding that what's in the personnel 19 file for the government is confidential, not 20 to be released to the public? 21 A That is not my understanding. 22 Q What is your understanding as of 108 1 today? 2 A My understanding is that some 3 information is releasable and some is not. 4 Q What information is releasable? 5 A I think certain information about 6 grade, pay level, date of hiring is 7 releasable. 8 Q Anything else? 9 A It varies, of course, according to 10 the person and the person's position, but I 11 can't give you a legal definition of what's 12 releasable and what isn't. 13 Q That's all you understand as of 14 today? 15 A Yes. 16 Q So you understand as of today that 17 you're not to release information on 18 Form 368's that ask for whether or not one 19 has been arrested or convicted? You 20 understand that today? 21 A I don't understand that today. 22 Q Is it your understanding that that 109 1 information is releasable? 2 A No. It's not my understanding that 3 it's releasable or unreleasable. 4 Q Now, at the time that you began to 5 work at the Pentagon, did you undergo any 6 type of training in the Privacy Act or 7 Freedom of Information Act? 8 A I did not. 9 Q Were you given any materials to 10 read about either of those two statutes? 11 A Not that I can recall. 12 Q That means you can't remember? 13 A I don't believe I was. 14 Q As the Pentagon Press Secretary, 15 was your duty to discuss information 16 emanating from the Pentagon, correct? 17 A Yes. 18 Q Therefore, logically speaking, did 19 you not seek some guidance on what 20 information you could discuss and release and 21 that which you could not? 22 A Of course I did when it dealt with 110 1 issues of national classification or 2 security. 3 Q You sought that kind of 4 instruction? 5 A Yes. 6 Q Who did you seek it from? 7 A Well, I seek it on a regular basis 8 from the Joint Staff and from the office of 9 the Secretary of Defense. 10 Q Who from the Joint Staff do you 11 seek that information from? 12 A Generally, from the J-2, the 13 Director of Intelligence. 14 Q Who is that? 15 A Today it is Admiral Thomas Wilson. 16 Q Who was it a month before the 17 release of Linda Tripp's information? 18 A It was Major General Jim King. 19 Q Who was it at the time of the 20 release of Linda Tripp's information? 21 A I believe it was Major General 22 King. 111 1 Q Did you ever seek advice from Major 2 General King as to whether or not Linda 3 Tripp's information could be released? 4 A No. Typically, the Joint Staff 5 Director of Intelligence doesn't deal with 6 personnel information. 7 Q Did you seek advice from anyone 8 before Linda Tripp's information was 9 released? 10 A I did not. 11 Q Who else do you sometimes seek 12 advice from with regard to national security 13 issues? 14 MS. WEISMANN: I'm going to object 15 to the question. It's far and outside the 16 scope of what he's been authorized to testify 17 to, and he's now testified conclusively that 18 with respect to the Linda Tripp information 19 he did not seek any advice. I'm, therefore, 20 going to direct him not to answer. 21 MR. KLAYMAN: Well, I'm entitled to 22 find out what he's been trained in. 112 1 MS. WEISMANN: Your question does 2 not go to training. 3 MR. KLAYMAN: Bears on state of 4 mind and intent. 5 MS. WEISMANN: If you want to 6 re-ask your question so that it gets into the 7 training, you may do so, but the question as 8 posed, I'm directing him not to answer. 9 MR. MURPHY: I don't think 10 Mr. Bacon's state of mind or intent is an 11 issue in your lawsuit, Mr. Klayman, but maybe 12 I'm wrong about that. 13 MR. KLAYMAN: Yes, you are. Thank 14 you. Have you ever consulted with anyone 15 about matters concerning release of 16 information in personnel files? 17 THE WITNESS: I'm not sure that I 18 have directly, as opposed to having somebody 19 on my staff do it. 20 BY MR. KLAYMAN: 21 Q Who on your staff is in charge with 22 doing that, if anyone? 113 1 A Well, there's no one person. 2 Q Has anyone ever done it? 3 A Well, at the time Cliff Bernath 4 certainly has consulted and Colonel Dick 5 Bridges has consulted. 6 Q At the time of what? 7 A Well, at the time these questions 8 arise. 9 Q What questions? 10 A The questions about personnel 11 files. 12 Q Has it ever arisen other than for 13 Linda Tripp? 14 A Yes. 15 MS. WEISMANN: I'm going to object 16 to the question as beyond the scope of what 17 he's authorized to testify to and direct him 18 not to answer. 19 MR. KLAYMAN: I'm trying to keep my 20 calm here, Ms. Weismann, but it's very 21 difficult because I just simply asked for an 22 identification of whether he's ever consulted 114 1 with regard to anybody else on personnel 2 issues, and that clearly is relevant. 3 MS. WEISMANN: He has answered that 4 question, sir. 5 MR. KLAYMAN: He has not answered 6 that question. I really take issue with your 7 approach, with your attitude and with the way 8 you're obstructing this deposition. Certify 9 it. We will be moving to supplement our 10 motion for sanctions. 11 MS. WEISMANN: Well, needless to 12 say, I dispute your characterization as 13 grossly inaccurate, but the record will 14 reflect what's going on. 15 MR. KLAYMAN: It will reflect it. 16 I think it's an extremely inappropriate way 17 of conducting yourself at this deposition 18 which is obstructing it. 19 MR. MURPHY: I disagree, 20 Mr. Klayman, but the record will speak for 21 itself. 22 Is there a question pending? 115 1 MR. KLAYMAN: Yes. I want an 2 answer to that question. 3 MS. WEISMANN: May I ask the Court 4 reporter to please read back the pending 5 question. 6 (The reporter read the record as 7 requested.) 8 BY MR. KLAYMAN: 9 Q I take it for Linda Tripp you 10 relied on other people to learn whether or 11 not the information could be released about 12 her on the Form 368? 13 A That is correct. 14 Q You specifically instructed them to 15 look into the Privacy Act? 16 A Yes, I did. 17 Q That you're aware that the release 18 of the information concerning Linda Tripp 19 would hinge on the Privacy Act, whether it 20 could be released? 21 A I wasn't -- I don't think I thought 22 that that was the only consideration. 116 1 Q But it was one of them? 2 A It was a consideration. 3 Q So before that information about 4 Linda Tripp was released on that Form 368, 5 you knew that the Privacy Act would apply? 6 A I knew that it was a consideration. 7 Q When did you reach that conclusion? 8 Was it before or after you were contacted by 9 Jane Mayer? 10 A It was contemporaneous with the 11 contact. 12 Q She told you that this would hinge 13 on the Privacy Act? 14 A I told her that it could hinge on 15 the Privacy Act. 16 Q Now, you were aware at the time 17 that there was a difference between using 18 information internally at the Pentagon or 19 inside the administration as routine use as 20 opposed to releasing it to the public, 21 correct? 22 A Yes. 117 1 Q That there were different criteria 2 as to whether one could use Privacy Act 3 information as part of a routine use as 4 opposed to releasing it to the public? 5 A Well, I wasn't aware in any 6 educated sense since I had not been briefed 7 on the Privacy Act. 8 Q But you instructed Bernath to 9 figure that out? 10 A I did not instruct Bernath to 11 figure that out. 12 Q You instructed Bernath to go get 13 the information and release it? 14 A I did not instruct Bernath to get 15 the information and release it. 16 MR. KLAYMAN: I'll show you what 17 I'll ask the Court reporter to mark as 18 Exhibit 1 to your deposition. This is a 19 letter of March 5, 1996 to the Honorable 20 Strom Thurmond which you authored, consisting 21 of 11 pages. 22 (Bacon Deposition Exhibit No. 1 118 1 was marked for identification.) 2 BY MR. KLAYMAN: 3 Q Before I ask you a question about 4 this document, you say you were deposed by 5 the Inspector General about the Tripp matter, 6 correct? 7 A Can I read the document before I 8 respond to any questions? 9 Q Well, I want to ask you this 10 question, then I'll let you read it. 11 That will be fine. 12 Have you had a chance to read that, 13 Mr. Bacon? 14 A Yes, I have. 15 Q This is a letter which you 16 authored, is it not? 17 A It's a letter I signed, yes. 18 Q Was it someone else who wrote it? 19 A Yes. 20 Q Who wrote it? 21 A Cliff Bernath. 22 Q Did you provide the information for 119 1 Mr. Bernath to prepare this letter for you? 2 I take it you did? 3 A Well, I think he provided it to me. 4 We went over it and I signed it. 5 Q You agree with what was said in it 6 or you wouldn't have signed it? 7 A That is correct. I accept -- 8 Q This letter is one hundred percent 9 accurate? 10 A The letter represents my views and 11 I signed it. 12 Q It's accurate? 13 A Yes. 14 Q Turn to question 4 where it says, 15 "Question: How would you describe your 16 access to Secretary Perry? How often do you 17 see him and what activities are you routinely 18 included in?" 19 Is your answer to that accurate? 20 A Yes. 21 Q You have as good an access to 22 Secretary Cohen as you did to Secretary 120 1 Perry, correct? 2 A Yes. 3 Q So if you were writing this letter 4 today, you would have the same answer with 5 regard to Secretary William Cohen? 6 A Yes. 7 Q In fact, you wouldn't take any 8 action which you consider to be important 9 without clearing it with Secretary Cohen, 10 would you? 11 A I take many actions everyday and 12 some I consult with him on; many I don't. 13 Q But if it's a matter of importance, 14 you would feel that it's most prudent to 15 consult with him, correct? 16 A If it's a matter of importance to 17 him, I certainly would consult with him, yes. 18 Q Or if it's a matter of importance 19 to the White House, you would want to check 20 with him, too, correct? 21 A I don't deal with any matters of 22 importance to the White House that I don't 121 1 discuss on the noon conference calls with 2 defense and public affairs. 3 Q But those that are important, you 4 would, of course, touch base with Secretary 5 Cohen? 6 A If I deemed it important, yes. 7 Q A matter involving an alleged 8 scandal with the President of the United 9 States, that would be such a matter, wouldn't 10 it? 11 A No. 12 Q The matter concerning the 13 president's alleged relationship with your 14 former employee, Monica Lewinsky, that's not 15 an important matter? 16 A That's not one I would consult with 17 the secretary on. 18 Q Why? 19 A I don't consider it a matter that 20 he would need to know anything about or make 21 a ruling on. 22 Q In the course of your duties and 122 1 responsibilities, you do keep abreast of 2 what's being said by the media concerning the 3 administration, correct? 4 A Yes, I do. 5 Q That is part of your duties and 6 responsibilities? 7 A Yes, it is. 8 Q You're aware that some or many in 9 the media had predicted that the Monica 10 Lewinsky matter could result in the 11 resignation or impeachment of the president? 12 A I'm aware that there has been some 13 speculation to that effect. 14 Q You're, in fact, even aware that 15 Secretary Cohen has been reported as saying 16 that if there's any truth to this, this is it 17 for the President of the United States? 18 A I'm aware that that's been 19 reported, yes. 20 Q So consequently with regard to this 21 Lewinsky controversy, it would be your 22 opinion, would it not, that you should check 123 1 with Secretary Cohen before you discussed 2 that controversy in public? 3 A No. 4 Q It would be also part of your 5 duties and responsibilities to check with 6 Secretary Cohen if you released information 7 from the Pentagon to the press which bore on 8 that controversy, correct? 9 A No. 10 Q So you're telling me that with a 11 controversy that some have predicted could 12 lead to the downfall of the President of the 13 United States, including, as reported, 14 Secretary Cohen, that you would not check 15 with him? 16 A That's what I'm telling you. 17 Q Why is that? 18 A Because I haven't. 19 Q You're saying because you haven't 20 done it doesn't mean that you shouldn't have 21 done it? 22 A I have never consulted with him on 124 1 anything I have said about the people you 2 mentioned unless I believed he was going to 3 get a question on it, and then I discussed 4 with him how he might answer the question. 5 But I've never discussed with him my answer 6 to questions. 7 Q But he is your ultimate superior at 8 the Defense Department, correct? 9 A That is correct. 10 Q If you say or do something which 11 impacts on this Monica Lewinsky scandal, it 12 could affect him, correct? 13 A Not likely. 14 Q What leads you to believe that this 15 matter is so insignificant that no matter 16 what you do or say couldn't affect Secretary 17 Cohen? 18 MR. MURPHY: Objection to that. 19 BY MR. KLAYMAN: 20 Q You can respond. 21 A I have made a number of decisions 22 about disclosures involving Monica Lewinsky 125 1 and Linda Tripp that I have not conducted 2 with Secretary Cohen on and he has never 3 asked me to consult with him on these. 4 Q Well, the fact that you never 5 disclosed it to him, how could he therefore 6 ask you? He didn't know about it, correct? 7 A That is correct, but he knows what 8 I've said in retrospect. 9 Q Have you received any kind of 10 criticism from Secretary Cohen since you've 11 been Press Secretary under his ultimate 12 command? 13 A Yes, I have. 14 Q When did you receive such 15 criticism? 16 MS. WEISMANN: I'm going to object 17 to the question to the extent that it calls 18 for him to testify to matters outside that 19 for which he has been authorized to testify 20 to; namely, information relating to the 21 disclosure by the Defense Department of 22 certain information on Linda Tripp's Security 126 1 Clearance Form. 2 If he has information within that 3 scope, he's free to answer it, otherwise I'm 4 going to direct him not to answer. 5 MR. KLAYMAN: Let me ask a question 6 first that way and then I do want to ask a 7 broader question. So if you instruct him not 8 to, we'll simply certify it. 9 Have you ever been criticized over 10 the release of the Tripp information by 11 Secretary Cohen? 12 THE WITNESS: Secretary Cohen has 13 made it clear that he thinks the release was 14 inappropriate. 15 BY MR. KLAYMAN: 16 Q Has he criticized you, personally? 17 A He has not criticized me personally 18 or directly on this, but he's made it clear 19 that he was not pleased with the way it was 20 handled. 21 Q Has he spoken to you about this 22 incident? 127 1 A After the fact, yes. 2 Q Was that an oral conversation? 3 A Yes. 4 Q When did that take place? 5 A There have been several 6 conversations. 7 Q How many? 8 A Probably four. 9 Q Did they take place in his office, 10 all four of them? 11 A No. 12 Q Where did the first one take place? 13 A Wait a minute. They may have all 14 taken place in his office. I think they have 15 all taken place in his office. 16 Q He summoned you for each 17 conversation? 18 A No. I think they were all at my 19 initiative. 20 Q So he didn't ask you to come up and 21 talk to him? 22 A No. 128 1 Q The first time, how did you contact 2 his office to set up an appointment to see 3 him? 4 A I think the first time he called me 5 to talk about an appearance he was planning 6 to make on CNN on March 15th, and the main 7 topic of that appearance was Iraq. 8 Q At that point had the Tripp 9 information already been released by the 10 Pentagon? 11 A At that point the Tripp information 12 had been released and I informed him that The 13 New Yorker article was forthcoming. 14 Q When did The New Yorker article get 15 published? 16 A Well, I believe it was available on 17 Monday, the 16th of March. 18 Q But you had already had a copy of 19 it faxed to you by The New Yorker? 20 A No. At the time I talked to 21 Secretary Cohen, I had not. 22 Q So you met with him at that time as 129 1 part of your briefing on Iraq? 2 A Yes. 3 Q What day was that? Was that a 4 Friday? 5 A It was Friday, the 13th. 6 Q Quite coincidentally. You appeared 7 in his office or did you call in advance and 8 arrange this, or was this part of a normal 9 briefing schedule? 10 A No. Somebody on his staff called 11 and said would you come up and talk to the 12 secretary about, "Late Edition" with Wolf 13 Blitzer. 14 Q During that conversation, who 15 raised the issue of Linda Tripp? 16 A I did. 17 Q What did you say? 18 A I said that The New Yorker magazine 19 was preparing to report that Linda Tripp had 20 lied on a security form and that he could get 21 asked about this on Sunday and that if he was 22 asked about it, he should give an answer. 130 1 Q What, if anything, did he say in 2 response? 3 A He said nothing. 4 Q Did you give him the answer? 5 A I did. 6 Q What answer did you give him? 7 MS. WEISMANN: I'm going to object 8 to the question now. It calls, first of all, 9 for information that's protected by the 10 deliberative process privilege; and, second, 11 it calls for information that's outside the 12 scope of what he's been authorized to testify 13 to, and I'm going to direct him not to 14 answer. 15 MR. KLAYMAN: That is outrageous. 16 You're on notice that we will be looking for 17 sanctions against you personally, 18 Ms. Weismann, for not only the payment of 19 legal fees but other remedies, personally. 20 MS. WEISMANN: I object to the 21 threats of intimidation. 22 MR. KLAYMAN: That's not a threat. 131 1 I'm putting you on notice and I'm asking you 2 to withdraw that objection. 3 MS. WEISMANN: The objection 4 stands. 5 MR. KLAYMAN: What did you tell 6 Mr. Cohen to say? 7 MS. WEISMANN: Object on the same 8 grounds and direct the witness not to answer. 9 It's protected by both deliberative process 10 privilege and outside the scope of that to 11 which he's been authorized to testify to. 12 BY MR. KLAYMAN: 13 Q Did you tell him during that 14 conversation that information from Linda 15 Tripp's personnel file had been released to 16 The New Yorker? 17 A I did not. No. 18 Q Did you tell him during that 19 conversation that you had received an inquiry 20 from Ms. Mayer of The New Yorker asking for 21 the release of that information? 22 A I did not. 132 1 MR. KLAYMAN: I want a proffer from 2 you as to how, notwithstanding this 3 outrageous objection as to the scope of the 4 testimony which the Court has already ruled 5 on, and the reason I'm so incensed at this 6 objection is we already have a court order 7 here in terms of what's relevant, and you are 8 not just improperly interpreting Touye. 9 You are also defying a court order, 10 Ms. Weismann. But I want to understand how 11 the deliberative process privilege applies, 12 how that applies to a briefing to go on CNN 13 Late Edition. If you'll please provide a 14 proffer on that. 15 MS. WEISMANN: Internal discussions 16 that occurred within the Defense Department 17 respecting how certain questions might be 18 answered are part and parcel of deliberative 19 process types of communications. They 20 concern suggestions given and advice on how 21 particular parts were taken. I think the 22 objections is well stated. 133 1 MR. KLAYMAN: Our position is 2 you're directly violating an order of the 3 Court and you're on notice. 4 (Witness conferred with counsel) 5 MR. KLAYMAN: What did you just 6 discuss with you counsel, Mr. Bernath? 7 MR. MURPHY: None of your business. 8 MR. KLAYMAN: Were you just 9 discussing testimony? 10 MR. MURPHY: No, we did not, but 11 it's none of your business. 12 MR. KLAYMAN: Mr. Bacon. Excuse 13 me. Did you tell Secretary Cohen that this 14 article that was going to be published by The 15 New Yorker magazine was going to be 16 significant or important? 17 THE WITNESS: No, I did not. 18 BY MR. KLAYMAN: 19 Q Did you tell him that it would bear 20 on the Monica Lewinsky issue? 21 A No, I did not. 22 Q Did you tell him that it would bear 134 1 on Linda Tripp? 2 A Well, I don't believe I had to. 3 Q Did you tell him that or not? 4 A I told him what The New Yorker was 5 going to report. 6 Q Specifically, what did you tell 7 him? 8 A I told him that The New Yorker was 9 going to report in an article expected out 10 over the weekend an allegation that Linda 11 Tripp had lied on the security form. 12 Q What did the secretary say to you 13 in response? 14 A He didn't say anything. 15 Q Did he gasp? 16 A No. 17 Q Did he say that's serious? 18 A No. 19 Q Did he say that needs to be looked 20 into? 21 A No. 22 Q Did you tell him to say that when 135 1 he went on CNN? 2 MS. WEISMANN: I object. To the 3 extent the question calls for Mr. Bacon to 4 reveal what advice or recommendations he gave 5 to the Secretary with respect to how to 6 answer questions on CNN or any other news 7 show, it's protected by the deliberative 8 process privilege and I direct him not to 9 answer. 10 MR. KLAYMAN: Certify it. Now, 11 Mr. Bacon, you withheld material information 12 from Secretary Cohen, did you not? 13 THE WITNESS: I don't believe so. 14 BY MR. KLAYMAN: 15 Q You withheld information from 16 Secretary Cohen, did you not? 17 A I would not characterize it that 18 way, no. 19 Q Well, how would you characterize 20 it? 21 A I would characterize it that I told 22 him the information I thought he needed to 136 1 know. 2 Q Is it not important for him to know 3 that the way Jane Mayer got the information 4 about Linda Tripp's arrest record came from 5 your office? 6 MR. MURPHY: I object to that. 7 MR. KLAYMAN: You can respond. 8 THE WITNESS: First of all, that's 9 not the issue. 10 BY MR. KLAYMAN: 11 Q That's not important? 12 A No. You've just misstated the 13 facts. 14 Q How have I misstated the facts? 15 A You said -- you suggested that Jane 16 Mayer learned of Ms. Tripp's arrest record 17 from my office. That is not an accurate 18 statement. She did not learn of it from my 19 office. 20 Q Let me rephrase the question. She 21 learned of how Ms. Tripp had responded to a 22 question as to whether she had been arrested 137 1 on Form 368 from your office, correct? 2 A Yes, she did. 3 Q Now, was that not material 4 information that you should have told the 5 Secretary of Defense, based on your 6 experience as a journalist and as press 7 secretary before he appeared on CNN Late 8 Edition? 9 A Given the question I thought he was 10 going to be asked, I did not think that that 11 was relevant to the answer. 12 Q What question were you told by CNN 13 was going to be asked? 14 A I was not told. 15 Q So you didn't know? 16 A No. 17 Q What question in your own mind at 18 the time did you think was going to be asked? 19 A I thought that he might be asked 20 about this report and whether he had any 21 insight into it and any response to it. 22 Q Now, you had already seen a copy of 138 1 Jane Mayer's report at the time you met with 2 Secretary Cohen? 3 A No, I had not. 4 Q You knew that the report was going 5 to contain information about how she had 6 answered the question to the Pentagon as to 7 whether she'd been arrested? 8 A I assumed that was the case. 9 Q You assumed that based upon your 10 conversation with Ms. Mayer and Mr. Bernath? 11 A I assumed it on the basis of my 12 conversation with Mr. Bernath. 13 Q Mr. Bernath told you that Ms. Mayer 14 was going to use that information, correct? 15 A He told me that the information had 16 been provided. 17 Q Did you ever have a discussion with 18 Ms. Mayer where she said she was going to use 19 that information from the Pentagon? 20 A I did not. 21 Q Despite the fact that you assumed 22 that the information provided to Ms. Mayer 139 1 about Ms. Tripp from the Pentagon was going 2 to be used in her article, you still thought 3 that unimportant in terms of informing the 4 Secretary of Defense? 5 MS. WEISMANN: I object to the 6 question. Asked and answered. 7 BY MR. KLAYMAN: 8 Q You can respond. 9 A I've answered it. 10 Q You can respond. 11 A Could you read back my earlier 12 answer, please? 13 Q I'm asking for an answer now. It's 14 a different question. 15 MR. MURPHY: It's a slightly 16 different question. 17 THE WITNESS: Would you repeat the 18 question? 19 MR. KLAYMAN: Can you read the 20 question back, please. 21 Let's change the tape at this time. 22 (Recess) 140 1 MR. KLAYMAN: Let the record 2 reflect that we are breaking for lunch 3 at 12:30. The plaintiffs intend to take the 4 customary one hour lunch which has been taken 5 throughout these depositions, that we need 6 the time in terms of other appointments that 7 we have and this is the customary period. I 8 ask for some cooperation from Justice 9 Department counsel. 10 MR. MURPHY: Let me just state on 11 behalf of Mr. Bacon that it's his preference 12 to work through lunch and to complete this 13 deposition as quickly as possible so that he 14 can get back to his duties at the department. 15 MR. KLAYMAN: Well, it's our desire 16 to complete it as quickly as possible, too. 17 It doesn't make it very easy when we get some 18 of the objections that we've gotten from 19 Justice Department counsel. 20 MS. WEISMANN: If you will allow 21 Justice Department counsel to make her 22 position known. 141 1 Mr. Bacon is a high ranking 2 official within the Department of Defense. 3 He has requested to work through lunch. 4 Mr. Klayman has indicated he has a prior 5 commitment from 12:30 to 1:30. We have noted 6 our objection and our intent that the time he 7 uses, contrary to Mr. Bacon's expectations 8 and desires, is counting against him as far 9 as the 6 hours. 10 MR. KLAYMAN: Are you saying you're 11 going to walk out of the deposition an hour 12 before the 6 hours because of that, 13 Ms. Weismann? 14 MS. WEISMANN: My statement stands, 15 Mr. Klayman. 16 MR. KLAYMAN: Is that what you 17 intend to do? Because we'll go to the Court 18 on that, too. Is that your position? Let's 19 resolve the issue right now. 20 MS. WEISMANN: My statement is that 21 Mr. Bacon has requested that we work through 22 lunch. He's a high ranking government 142 1 official. He should be accorded the 2 privileges that go with his rank. He's 3 agreed to make himself available. He's here 4 at your request. If you want my position, 5 please allow me to continue. 6 He has requested that we work 7 through lunch. Given that request, we think 8 it unreasonable your insistence to take an 9 hour. We are willing to accord you half an 10 hour, but if you exceed that, we will count 11 that time towards the time you believe he's 12 required to attend. What repercussions that 13 has for the end of the deposition, I cannot 14 yet predict since I do not know how long this 15 deposition will go. 16 MR. KLAYMAN: Well, we will be 17 advising the Court of your position. It's 18 our understanding that people are allowed to 19 eat lunch, that Mr. Bacon certainly is 20 permitted to eat lunch. It's hardly 21 discourteous for him to take lunch. 22 It is customary in this country, in 143 1 the United States, to take a 1-hour lunch 2 break and we have, in fact, scheduled our day 3 based on the customary practice not only of 4 the United States of America but also in this 5 case because we have taken lunch breaks for 6 one hour, including many times at the request 7 of opposing counsel. 8 MS. SHAPIRO: I would also add, 9 however, that we've also taken much shorter 10 lunch breaks on many occasions and there is 11 no customary lunch hour. 12 MR. KLAYMAN: When the people 13 agree, but in this case we do not agree, and 14 we wish to move it along. It's objections 15 like this and it's statements like this which 16 prolong the deposition. To the contrary, our 17 position is that when we have to occupy time 18 over things like this, it will not count 19 against our time. If you walk out sooner by 20 virtue of time used for these kinds of 21 things, then that will be added to our 22 motion. 144 1 MR. MURPHY: How about if we 2 have 30 to 45 minutes for lunch? 3 MR. KLAYMAN: I told you that we 4 need the hour because that is what we 5 budgeted here and that is customary. 6 Would you read back the question. 7 (The reporter read the record as 8 requested.) 9 THE WITNESS: Yes. 10 BY MR. KLAYMAN: 11 Q So I take it it's not your concern 12 whether or not the Secretary of Defense is 13 fully informed before he appears on 14 television? 15 A I believe that the Secretary of 16 Defense was informed to the degree he needed 17 to be to deal with the question I expected 18 him to get on television. In fact, it was 19 the question he got and his answer proved 20 that he was briefed to the degree he needed 21 to be. 22 Q Now, since that time, Secretary 145 1 Cohen has been subject to criticism for not 2 making a complete response when he appeared 3 on CNN, correct? 4 A I don't believe that's the case. 5 Q You've continued to read the daily 6 media, have you not, in terms of your duties 7 and responsibilities at the Pentagon? 8 A Yes. 9 Q Was anything else discussed during 10 that conversation? 11 A Yes. Mainly the conversation about 12 Iraq. 13 Q There was a second occasion when 14 you met with him, right? 15 MR. MURPHY: About Tripp? 16 MR. KLAYMAN: About Tripp. 17 THE WITNESS: About Tripp. The 18 next time I discussed the Tripp issue with 19 him was in April. I don't remember the date 20 but it was a Friday or a Sunday. 21 BY MR. KLAYMAN: 22 Q Did you initiate that discussion? 146 1 A It was in the course of preparing 2 him to go on another Sunday TV show and I 3 could not remember who initiated the 4 discussion. 5 Q Do you sometimes meet with him on 6 the weekend to prepare him for those shows? 7 A I always meet with him on the day 8 of the show. 9 Q Do you meet with him at the 10 Pentagon or at his home or at the studio? 11 A Generally in his car on the way to 12 the studio. 13 Q It's your practice to accompany 14 Secretary Cohen when he makes media 15 appearances? 16 A Yes. 17 Q You're there in the green room 18 before and after his appearances? 19 A Yes. 20 Q You talk to him about his 21 appearances? 22 A Yes. 147 1 Q So I take it with regard to this 2 first appearance on CNN Late Edition, when 3 you had that first meeting, that you traveled 4 with him to the studio and stayed with him? 5 A Not in that case, because I talked 6 to him on the 13th and I left town on 7 the 14th and was gone for a week. 8 Q So how did you communicate with 9 Secretary Cohen on that second occasion? 10 A I spoke to him, I believe, in his 11 car. 12 Q On the way to the studio? 13 A Yes. 14 Q Did he address you first about the 15 Tripp matter or vice versa? 16 A I brought it up. 17 Q What did you bring up? 18 MS. WEISMANN: I'm going to object 19 to this line of questioning. Discussions 20 that Mr. Bacon had with Secretary Cohen that 21 postdate the release of this information are 22 not relevant, are outside the scope of what 148 1 he's been authorized to testify to and are 2 also protected by the deliberative process 3 privilege. I'm going to direct the witness 4 not to answer this. 5 MR. KLAYMAN: Certify it. How is 6 it that information which may be discussed 7 after the fact but which deals with the 8 actual event is not relevant? 9 MS. WEISMANN: I would draw your 10 attention to the Court's order of April 13th 11 as defining the boundaries of what we 12 consider to be relevant for purposes of the 13 agency's response to your Touye request. 14 MR. KLAYMAN: Ms. Weismann, do you 15 know what this conversation is about that 16 he's about ready to testify to? 17 MS. WEISMANN: Mr. Klayman, I'm not 18 being deposed here. Mr. Bacon is. 19 MR. KLAYMAN: Well, I wanted this 20 for purposes of our sanctions motion on the 21 record whether or not you know and you're 22 given the opportunity now of what he's going 149 1 to say such that you can say it's not 2 relevant. 3 I'm not asking you what the 4 conversation was but are you aware of what 5 this conversation was about such that you can 6 make an informed instruction to have him not 7 testify. 8 MS. WEISMANN: Mr. Klayman, I stand 9 behind my instruction. 10 MR. KLAYMAN: Are you willing to 11 make that proffer as to whether or not you 12 know what he's going to say such that you can 13 instruct him not to answer on grounds that 14 it's irrelevant? 15 MS. WEISMANN: I do not need to 16 answer that question to support the basis for 17 my privilege. I stand by my assertion of the 18 privilege and my assertion that what he has 19 been asked to testify to is outside the scope 20 of what he's been authorized. 21 MR. KLAYMAN: Given that you're 22 making this instruction without simply 150 1 identifying whether you know that it's 2 irrelevant based on discussions, 3 Ms. Weismann, I consider this to be the 4 equivalent of obstruction of justice. 5 MS. WEISMANN: Mr. Klayman, I 6 disagree entirely with the characterization. 7 Events that happened after the dissemination 8 of information on Linda Tripp's security 9 forms are not relevant to your lawsuit and 10 are, therefore, outside the scope of what 11 Mr. Bacon has been authorized to testify to 12 today. 13 MR. KLAYMAN: That statement also 14 directly defies the Court's order, 15 Ms. Weismann. 16 MR. MURPHY: Mr. Klayman, please, 17 may we have a question? 18 MR. KLAYMAN: Is the instruction 19 that he's not allowed to testify about 20 anything that was discussed on the way to the 21 studio? 22 MS. WEISMANN: That's my
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of this Deposition