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.









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         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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