151
1 instruction, yes.
2 MR. KLAYMAN: Certify it. Did
3 there come a third time when you had a
4 conversation with Secretary Cohen about the
5 Tripp matter?
6 THE WITNESS: Yes.
7 BY MR. KLAYMAN:
8 Q When was that?
9 A Shortly after Cliff Bernath's
10 deposition.
11 Q In this case? In Judicial Watch's
12 case for the plaintiffs in Alexander vs. FBI?
13 A Whoever they are, yes.
14 Q Who initiated that conversation?
15 A I did.
16 Q Where did that conversation take
17 place?
18 A In his office.
19 Q How many days after Mr. Bernath's
20 deposition or was it the same day?
21 A It was not the same day, but I
22 can't recall how many days afterwards.
152
1 Q Did you initiate the conversation
2 or not?
3 A Yes, I did.
4 Q Was anyone else present?
5 A No.
6 Q Was anyone else present during the
7 first conversation?
8 A I believe there was, but I can't
9 recall who.
10 Q Do you remember, generically
11 speaking, who this individual is?
12 A Somebody on his staff.
13 Q On his staff?
14 A Right.
15 Q Was it his Chief of Staff?
16 A No, I don't believe so.
17 Q A secretary?
18 A Not a secretary. I can't remember
19 whether it was a military assistant or a
20 special assistant.
21 Q Man or a woman?
22 A Man.
153
1 Q Do you remember physically what the
2 individual looked like?
3 A If I could, I could give you the
4 person's name.
5 Q Dark hair?
6 A It was one of two people. I can't
7 remember which.
8 Q Caucasian?
9 A Caucasian, yes.
10 Q We'll get back to that. Maybe
11 you'll remember. You can think about it at
12 lunch.
13 A Well, sir, let me be very specific
14 on this. Frequently when I meet with the
15 Secretary there's one or two other people in
16 the room. In this case there may well have
17 been another person in the room. I just
18 can't remember one, if there was another
19 person in the room and, two, who it was.
20 But I do recall that the Chief of
21 Staff was not in on this meeting and the --
22 so the issue is I just don't want to mislead
154
1 you by telling you there was no one else
2 there. There could well have been somebody
3 else there but I don't recall specifically if
4 there was or who it was.
5 MR. KLAYMAN: Well, we'll pick up
6 on that meeting after lunch. Thank you.
7 (Whereupon, at 12:30 p.m, a
8 luncheon recess was taken.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
155
1 A F T E R N O O N S E S S I O N
2 (1:34 p.m.)
3 Whereupon,
4 KENNETH BACON
5 was recalled as a witness and, having been
6 previously duly sworn, was examined and
7 testified further as follows:
8 MR. KLAYMAN: Ms. Weismann, were
9 you able to reconsider whether any of these
10 objections and instructions not to answer,
11 whether you're willing to withdraw any of
12 them?
13 MS. WEISMANN: My objection stands
14 as noted.
15 EXAMINATION BY COUNSEL FOR PLAINTIFFS
16 CONTINUED
17 BY MR. KLAYMAN:
18 Q Mr. Bacon, the third conversation
19 that you had with Secretary Cohen, can you,
20 just bring us up to speed, where that
21 occurred?
22 A That occurred in his office.
156
1 Q You initiated that conversation?
2 A Yes, I did.
3 Q Who spoke first?
4 A I believe I did.
5 Q What did you say?
6 MS. WEISMANN: I object to this
7 question. Perhaps we need to place it in
8 time. If this happened after the
9 dissemination of information by Linda Tripp,
10 then I would object to the question because
11 it calls for information outside the scope of
12 that which he has been authorized to testify
13 to.
14 MR. KLAYMAN: Are you aware of,
15 Ms. Weismann, what this conversation is? I'm
16 not asking you to tell me what it is, but I
17 have gone over with the witness exactly what
18 occurred?
19 MS. WEISMANN: I'm not going to
20 answer that question, Mr. Klayman. I think
21 you understand the basis of my objection as
22 it stands, which is to the extent that this
157
1 discussion happened after the dissemination
2 of information concerning Ms. Tripp, he's
3 directed not to answer. I again draw your
4 attention to the fact of his testimony to
5 date which is that he had no discussions with
6 the secretary prior to the dissemination with
7 respect to that action.
8 MR. KLAYMAN: Well, he certainly
9 can be discussing with the secretary relevant
10 factual material at whatever point in time
11 that it occurs; and, consequently, it is an
12 area that is proper and appropriate. Since
13 you apparently don't even know what it is
14 you're instructing him not to answer, this is
15 highly abusive conduct. I'm not going to
16 repeat it, but I'm just simply noting this is
17 the same problem that we had prior to lunch.
18 MS. WEISMANN: Again, I object to
19 your characterization both as to the nature
20 of my conduct and to the extent of my
21 knowledge.
22 MR. KLAYMAN: Which is why I asked
158
1 you whether you were able to tell me do you
2 know what it is that he would say if he was
3 allowed to testify freely. Do you know that?
4 MR. MURPHY: Let's move along,
5 Mr. Klayman.
6 MR. KLAYMAN: Yes or no?
7 MS. WEISMANN: I'm not going to
8 answer your question, Mr. Klayman. I've made
9 my objection. It's outside the scope of what
10 he's been authorized to testify to.
11 MR. KLAYMAN: Certify it. Did you
12 then have a fourth conversation?
13 THE WITNESS: I did.
14 BY MR. KLAYMAN:
15 Q Who initiated that?
16 A I did.
17 Q Where did that take place?
18 A In his office.
19 Q When did that take place?
20 A Several days after the third
21 conversation.
22 Q Who spoke first?
159
1 A I did.
2 Q Was anyone else present besides you
3 and the secretary in the third and fourth
4 conversations?
5 A No.
6 Q What did you say?
7 MS. WEISMANN: Again, I object to
8 the question because it calls for information
9 outside the scope of what he's been
10 authorized to testify to, and I direct him
11 not to answer.
12 MR. KLAYMAN: Well, let me go back
13 to conversations 3 and 4.
14 During conversations 3 and 4, I
15 take it you did discuss the Linda Tripp
16 controversy?
17 MS. WEISMANN: I will allow him to
18 answer that question.
19 THE WITNESS: Yes.
20 BY MR. KLAYMAN:
21 Q You did discuss the release of
22 information from her file, correct?
160
1 A I discussed my role in it, yes.
2 Q At the time that you participated
3 in terms of your role, you were working for
4 the Department of Defense, correct?
5 A Yes.
6 Q The actions which you took were on
7 behalf of the Department of Defense, correct,
8 with regard to Linda Tripp?
9 A Pardon?
10 Q With regard to Linda Tripp.
11 MS. WEISMANN: Which actions or you
12 speaking of?
13 MR. KLAYMAN: Any actions. Any
14 actions which you took concerning Ms. Tripp
15 were done in the context of your professional
16 position at the Department of Defense?
17 THE WITNESS: They were done in the
18 context of my position at the Department of
19 Defense, yes.
20 MR. KLAYMAN: Will you now let him
21 answer the questions?
22 MS. WEISMANN: I will not,
161
1 Mr. Klayman. If you want to explore with him
2 what happened prior to the dissemination of
3 the information surrounding that event,
4 you're free to do so. If you want to explore
5 with him any contacts he may have had with
6 the White House concerning the dissemination
7 of that information, you're free to do so.
8 But the line of inquiry you're pursuing now
9 is outside the scope of what he's been
10 authorized to testify to.
11 MR. KLAYMAN: Certify it.
12 Returning to Exhibit 1, you see where there's
13 question number 5. "DOD directives provide
14 that the ASD(PA) shall 'ensure a free flow of
15 news and information to the media,
16 appropriate forums, and the American people
17 limited only by national security constraints
18 and statutory mandates.' What guidelines
19 would you use to determine what information
20 can and cannot be released to the news media
21 and the public?"
22 Do you see that answer there?
162
1 THE WITNESS: I do.
2 BY MR. KLAYMAN:
3 Q You have adopted that answer given
4 the fact that you've signed this letter?
5 A Yes.
6 Q Is there anything in that answer
7 that's inaccurate?
8 A Not that I see, no.
9 Q The answer is, "I will continue to
10 ensure that the release of information is
11 consistent with the provisions of applicable
12 statutes, executive orders and Department of
13 Defense directives and instructions. Our
14 goal is to release all useful information,
15 unless specifically exempted by law, national
16 security requirements, or privacy
17 considerations."
18 This letter was written
19 March 5, 1996, correct?
20 A Yes, it was.
21 Q Which was before the release of the
22 information from Linda Tripp's Form 398?
163
1 A That is correct.
2 Q So, therefore, you were fully
3 cognizant of the Privacy Act considerations
4 before Linda Tripp's information was
5 released?
6 A As I said earlier, I have never
7 been briefed on the contents of the Privacy
8 Act.
9 Q But you stated in Answer 5, "I will
10 continue to ensure that the release of
11 information is consistent with the provisions
12 of applicable statutes, executive orders and
13 Department of Defense directives and
14 instructions. Our goal is to release all
15 useful information, unless specifically
16 exempted by law, national security
17 requirements, or privacy considerations."
18 You stand by that statement,
19 correct?
20 A Yes, I do.
21 Q So to be able to make that
22 statement, you had to know what the privacy
164
1 considerations were, correct, before you
2 wrote it?
3 A I stand by my statement that I
4 never have been briefed on the Privacy Act.
5 Q You weren't trying to mislead
6 Chairman Thurmond of the Committee on Armed
7 Services, were you, in this letter?
8 A Not at all.
9 Q In fact, this last statement says
10 that you're going to abide by privacy
11 considerations, correct?
12 A That is correct.
13 Q To be able to abide by privacy
14 considerations, you have to know what they
15 are, correct?
16 A I've never been briefed on national
17 security requirements either.
18 Q Are you saying that you didn't know
19 what the privacy considerations were that you
20 were responsible for when this letter was
21 written and signed?
22 A I'm saying what I said at the very
165
1 beginning, that I know generally about the
2 Privacy Act but not in any great specificity.
3 Q Well, the statement here is, "Our
4 goal is to release all useful information,
5 unless specifically exempted by law, national
6 security requirements, or privacy
7 considerations."
8 To be able to perform that goal,
9 you have to know what the privacy
10 considerations are, correct?
11 MR. MURPHY: Objection. Asked and
12 answered.
13 MR. KLAYMAN: You can respond.
14 THE WITNESS: I accept my lawyer's
15 objection.
16 MR. MURPHY: That's all right. You
17 can answer it.
18 THE WITNESS: Or we ask other
19 people. I mean, there's another possibility.
20 BY MR. KLAYMAN:
21 Q But the bottom line is you wouldn't
22 release information unless a thorough review
166
1 of the privacy requirements was undertaken,
2 correct?
3 A The bottom line is that we make
4 many decisions everyday to release
5 information, and sometimes we do not check
6 every release of information with lawyers.
7 Q But you wouldn't release any
8 information to the public unless privacy
9 considerations were checked, correct?
10 A Considered.
11 Q So you might consider them and
12 decide they really didn't matter and do them
13 anyway?
14 A I think that privacy considerations
15 are a factor, yes.
16 Q But not the only factor?
17 A This says privacy consideration.
18 Q But another factor is whether
19 releasing that information may be helpful to
20 the Clinton Administration, correct?
21 A I don't believe that's ever been a
22 consideration in this case or other cases.
167
1 Q Is that what you discussed with
2 Secretary Cohen?
3 A I did not discuss that with
4 Secretary Cohen. As I said very clear to
5 you, sir, I did not discuss the release of
6 this information with Secretary Cohen prior
7 to his release.
8 Q Have you been criticized in any
9 written document that has been prepared by
10 the Department of Defense?
11 A No.
12 Q Have you been criticized in any
13 written documents that's been prepared
14 anywhere in the Clinton Administration?
15 A Not that I'm aware of.
16 Q I'm talking about the Linda Tripp
17 matter, those last two questions.
18 A I'm not aware that I have been.
19 Q Have you been criticized by anyone
20 inside the Clinton Administration for your
21 involvement in the Linda Tripp matter?
22 A Not that I'm aware of.
168
1 Q Orally or in writing.
2 A Sir, the Clinton Administration has
3 many people. It's a house with many rooms
4 and I cannot tell you what's occurred in
5 every one of those rooms but I'm aware of no
6 criticism, written or oral.
7 Q For any source in the Clinton
8 Administration?
9 A That's exactly correct.
10 Q With regard to your conduct in the
11 Linda Tripp matter?
12 A Right.
13 Q Are you aware of any such criticism
14 with regard to any employee of the Department
15 of Defense with regard to Linda Tripp and the
16 release of her information?
17 A Well, I know that Secretary Cohen
18 said that the release was inappropriate.
19 Q Are you aware of any criticism
20 leveled against Clifford Bernath with regard
21 to the release of Linda Tripp's information
22 anywhere in the Clinton Administration?
169
1 A Well, the Secretary has said that
2 the release was inappropriate, and that
3 applies to anybody presumably who was
4 involved in the release.
5 Q You're saying that Mr. Bernath was
6 involved in the release?
7 A Well, you've talk to Mr. Bernath.
8 Q In your opinion, was he involved in
9 the release?
10 A Mr. Bernath and I were involved in
11 the release.
12 Q So, therefore, both you and
13 Mr. Bernath have been criticized, under your
14 definition, by the Clinton Administration?
15 MR. MURPHY: I don't remember him
16 saying the Clinton Administration. Is that a
17 new question?
18 BY MR. KLAYMAN:
19 Q You can respond.
20 A The act of making this information
21 public has been called inappropriate by the
22 Secretary of Defense.
170
1 Q Do you consider that to be
2 criticism leveled against you?
3 A Potentially, yes.
4 Q What do you mean by, "potentially"?
5 A Well, I think that the entire
6 circumstances of the release of the
7 information is currently under review by the
8 Inspector General, and in the end that will
9 determine, I believe, how the department will
10 see this action.
11 Q Do you take responsibility for
12 Mr. Bernath having released Linda Tripp's
13 confidential information from Form 368?
14 A I'm not sure that, "responsibility"
15 is the right word. I was aware that he was
16 doing it.
17 Q As his superior, do you take
18 responsibility for his actions with regard to
19 releasing Linda Tripp's information?
20 A I was certainly aware that he was
21 doing it and did nothing to stop it.
22 Q Do you accept responsibility as his
171
1 superior? Yes or no?
2 A I repeat that I was aware of what
3 he did and did nothing to stop it.
4 Q The answer calls for a yes or no.
5 Do you accept responsibility as his superior
6 for those actions?
7 A I was aware of what he was doing
8 and did nothing to stop it.
9 Q Yes or no?
10 A I was aware of what he was doing
11 and did nothing to stop it.
12 Q Yes or no? Do you accept
13 responsibility, yes or no?
14 A I was aware of what he was doing
15 and did nothing to stop it.
16 Q Now my question is yes or no. Do
17 you accept or not?
18 MR. MURPHY: He doesn't have to
19 answer your question yes or no. He's
20 answered your question.
21 MR. KLAYMAN: Yes, he does.
22 MS. WEISMANN: Mr. Klayman, let me
172
1 just remind you of exactly what the Court
2 said in his April 13th order, and I'm going
3 to quote from the order.
4 "Plaintiff submit that it's
5 reasonable to infer that the Department of
6 Defense leaked this information to The New
7 Yorker at the direction of the White House
8 with Blumenthal being the conduit through
9 which this information was transmitted.
10 Plaintiff suggests that the leaking of the
11 information contained in this file was an
12 effort to discredit and smear a perceived
13 enemy of the White House."
14 The Court then went on to say, "The
15 Court concludes that this is a reasonable
16 inference for plaintiffs to pursue in
17 discovery."
18 The questions you are now directing
19 at Mr. Bacon do not in any way implicate the
20 subject matter that the Court has laid out as
21 reasonable for discovery and we are,
22 therefore, going to ask that you ask him a
173
1 different question. You're becoming abusive.
2 MR. KLAYMAN: I am not going to ask
3 a different question until I get an answer,
4 and your reading that statement by the Court
5 is a way of providing information to the
6 witness as a question is pending and,
7 therefore, that is sanctionable conduct, as
8 well.
9 Certify it.
10 MS. WEISMANN: He's answered the
11 question. I ask you to move on.
12 MR. MURPHY: I join in
13 Ms. Weismann's request that you move on,
14 Mr. Klayman.
15 BY MR. KLAYMAN:
16 Q As his superior, are you
17 responsible for the actions of Clifford
18 Bernath? A general question.
19 A I was aware of what he was doing in
20 this case and I did nothing to stop it.
21 Q No. I'm talking about just
22 generally as his ultimate supervisor, are you
174
1 responsible for actions he undertakes?
2 A Not all actions, no.
3 Q Are you saying you're not
4 responsible for these actions with regard to
5 Linda Tripp?
6 A I told you I was aware of what he
7 was doing and I did nothing to stop it.
8 Q Is it your position, it's a
9 different question, that you're not
10 responsible for what he did with regard to
11 Linda Tripp?
12 A I was aware of what he was doing
13 and I did nothing to stop it.
14 MS. WEISMANN: Again, Mr. Klayman,
15 if you want to ask what Mr. Bacon's role was
16 in the release of this information, that is
17 within the scope of what he has been
18 authorized to testify to. You do not
19 represent Ms. Tripp in any action she may or
20 may not have against the Department of
21 Defense, so I do not see how the questions
22 you are badgering him with in any way fall
175
1 within the scope of what the Court has deemed
2 relevant, and I would ask you to move on to a
3 more relevant line of inquiry, please.
4 MR. KLAYMAN: Ms. Weismann, I'm
5 asking you to stop these kinds of
6 obstructionist tactics. I've been asking you
7 nicely. It doesn't cause me any great
8 pleasure to have to file one motion after
9 another for sanctions. I ask that you allow
10 us to conduct our questioning within the
11 scope of the Court's order.
12 We had a hearing the last time we
13 had a deposition with Mr. Bernath and the
14 judge specifically said that the
15 interpretation in his order was too narrow,
16 yet you came back into this deposition with
17 your colleague and even came up with a more
18 narrow interpretation than before the hearing
19 had been held. Today you're even more
20 restrictive. So you're on very, very thin
21 ice here, and I'm asking that it stops
22 because it's obstructionist.
176
1 MR. MURPHY: Mr. Klayman, I would
2 ask you to ask a question that you haven't
3 asked Mr. Bacon previously. He's answered
4 your question. If you don't like the answer,
5 move on, please.
6 MR. KLAYMAN: Mr. Murphy, you're
7 not the one asking questions.
8 MR. MURPHY: That's for sure. We
9 would be getting a lot further a lot faster
10 if I were.
11 MR. KLAYMAN: I'm sure. I'm sure
12 we would be gone and it probably wouldn't
13 have been more than state your name, rank and
14 serial number.
15 MR. MURPHY: Please ask a question.
16 BY MR. KLAYMAN:
17 Q Turn to question 13. "Has the
18 Department of Defense encountered any
19 significant difficulties in recent years in
20 the administration of the Freedom of
21 Information Act or the access provisions of
22 the law of the Privacy Act?"
177
1 "Answer. We have not yet
2 encountered significant problems; however, as
3 indicated in my response to Question 1, if
4 the trend toward increased caseload and
5 decreased personnel continues, a problems
6 could arise. We are attempting to resolve
7 this problem before it occurs."
8 That was your answer, was it not?
9 A Yes, it was.
10 Q Is there anything inaccurate about
11 that answer?
12 A There is not.
13 Q To be able to make that answer that
14 there were no significant problems, you have
15 to know what the Privacy Act is, correct, and
16 how it's administered?
17 A That answer, sir, applies to the
18 Freedom of Information Act.
19 Q It says the Freedom of Information
20 Act or the access provisions of the Privacy
21 Act.
22 MR. MURPHY: We're not concerned
178
1 with the access provisions of the Privacy Act
2 in this case, Mr. Klayman.
3 MR. KLAYMAN: Please do not provide
4 testimony, Mr. Murphy.
5 I certify. You now have a motion
6 for sanctions.
7 MR. MURPHY: 0h, good. I'm so
8 pleased. Next question, please.
9 MR. KLAYMAN: Please don't
10 interrupt. I'm asking you not to tip the
11 witness off when questions are pending.
12 MR. MURPHY: I'm not tipping the
13 witness off, Mr. Klayman. I thought I was
14 tipping you off to something.
15 BY MR. KLAYMAN:
16 Q Do you know what the access
17 provisions of the Privacy Act are?
18 A I do not.
19 Q How are you able to make this
20 statement, then, if you don't know what the
21 access provisions of the Privacy Act are?
22 A Cliff Bernath and I and other
179
1 people had talked about the burdens we were
2 facing in complying with the Freedom of
3 Information Act and those burdens came from
4 exactly what are described in this answer,
5 that the number of requests had been rising
6 and the number of people available to process
7 those requests had been falling. In my mind
8 this answer applied to the Freedom of
9 Information Act because that's the only
10 problem I was aware of at the time.
11 Q The question asked for information
12 about the access provisions of the Privacy
13 Act, correct?
14 A I understand that, sir.
15 Q You're answering the question
16 generally, correct?
17 A That is correct.
18 Q So you're not advising Chairman
19 Thurmond that you're only answering it for
20 the Freedom of Information Act, are you?
21 A That is correct.
22 Q This answer, therefore, is
180
1 misleading, is it not?
2 A I don't believe so.
3 Q Turn to question 21. "Usually at
4 the end of a Presidential term, employees
5 begin to 'burrow in' to avoid losing their
6 jobs during an administration change. Have
7 you witnessed any of this recently within
8 Public Affairs? Do you have a program for
9 promotion from within this organization?
10 (i.e. 'upward mobility' similar to Army
11 provisions)."
12 "Answer. I'm not aware of
13 any 'burrowing in' from either this
14 Administration or the previous one. All
15 hiring and promotions within this
16 organization are conducted in strict
17 compliance with Civilian Personnel
18 Regulations and are based on merit and
19 qualifications. We provide pathways for
20 upward mobility but do not make personnel
21 decisions based solely on that factor."
22 "Question 22. Are you aware of
181
1 anyone within the OSD/PA organization..."
2 What is "OSD/PA"?
3 A That is the office that I
4 administer.
5 Q "...who received a senior level
6 political appointment and then converted
7 their employment to a career civil service
8 position?"
9 "Answer. No, however, I am aware
10 of two instances that may appear to fall
11 within the scope of this question. One
12 involves one of my deputies, Clifford
13 Bernath.
14 He was a career civilian employee
15 {within} the Office of the Assistant
16 Secretary of Defense at the GS-15 level from
17 August 1990 until August 1993. In
18 March 1993, he was asked by then ATSD(PA)
19 Vernon Guidry to assist in the transition to
20 the new Administration. He was given a
21 Limited Term Senior Executive Service
22 appointment to perform those duties in
182
1 August 1993.
2 "In August 1994, Dennis Boxx, the
3 Acting ATSD(PA), requested reestablishment of
4 the position of Deputy ATSD(PA). The
5 position was {completely} recruited and
6 advertised to 'all qualified persons' for
7 a 30-day period. Twenty-three candidates
8 applied for the position. Two professional
9 review panels reduced the list to six 'Best
10 Qualified" candidates and referred them to me
11 for consideration.
12 "I interviewed them all and
13 selected Mr. Bernath, based on his proven
14 leadership, managerial, and technical skills.
15 His career SES appointment was approved by
16 the Office of Personnel Management
17 Qualification Review Board in March 1995 and
18 he was appointed to the position."
19 MR. MURPHY: I object. You misread
20 the answer. It referred to competitive
21 recruitment, not complete or whatever you
22 said.
183
1 BY MR. KLAYMAN:
2 Q Is what you're saying here that
3 Mr. Bernath tried to burrow in?
4 A I think the answer speaks for
5 itself and the answer is no. You read the
6 answer.
7 Q I'm trying to understand what it
8 means.
9 A It means what it said.
10 Q Are you saying here that
11 Mr. Bernath has obtained a level which is the
12 equivalent of a political appointee?
13 MS. WEISMANN: I object to the
14 question because it calls for information
15 that's outside that to which he's been
16 authorized to testify. I draw your attention
17 to page 2.
18 MR. KLAYMAN: Please, don't provide
19 testimony.
20 MS. WEISMANN: I'm not providing
21 testimony. I'm making an objection, sir, and
22 please, let me finish.
184
1 I draw your attention to page 2 of
2 the letter of May 14, 1998, from the
3 Department of Defense to you, Mr. Klayman,
4 saying specifically, "The Department of
5 Defense will not authorize, however,
6 testimony concerning other matters that are
7 not relevant to your lawsuit."
8 Then it goes on to say, "such as
9 how Mr. Bacon and Mr. Bernath or others
10 became employed at DOD." Your questions
11 clearly go to that area and they are;
12 therefore, outside the scope of what he's
13 been authorized to testify to, and I direct
14 him not to answer the question.
15 MR. KLAYMAN: This is going to the
16 issue of political appointments and political
17 positions.
18 Are you saying in this response,
19 Mr. Bacon, that Cliff Bernath had obtained
20 the level of a political appointee?
21 MS. WEISMANN: Again, I'm going to
22 direct the witness not to answer. As the
185
1 letter to you clearly states, he is not
2 authorized today to testify how Mr. Bacon,
3 Mr. Bernath or others became employed at DOD.
4 MR. KLAYMAN: Certify it.
5 MS. WEISMANN: I will allow him to
6 answer whether or not he is a political
7 appointee.
8 MR. KLAYMAN: That wasn't my
9 question, so that kind of frankly ridiculous
10 instruction is not helpful.
11 I'll show you what I'll ask the
12 Court reporter to mark as Exhibit 2.
13 (Bacon Deposition Exhibit No. 2
14 was marked for identification.)
15 BY MR. KLAYMAN:
16 Q This is the Notice of Deposition
17 Duces Tecum.
18 Showing you Exhibit 2, which is a
19 Notice of Deposition Duces Tecum, have you
20 ever seen this before, Mr. Bacon?
21 A Yes, I've seen this before.
22 Q When did you see it?
186
1 MR. MURPHY: Let me just point out
2 I don't think Mr. Bacon got the cover sheet
3 which is the Notice of Deposition. We got a
4 subpoena or he got a subpoena, which is
5 different. But the rest of the document
6 appears similar.
7 MR. KLAYMAN: When did you see
8 this?
9 THE WITNESS: Well, it was sent to
10 me sometime ago. I actually read it in the
11 last few days carefully.
12 MR. KLAYMAN: Mr. Murphy, you're
13 going to stipulate that the document request
14 is the same as the subpoena in this notice?
15 MR. MURPHY: I haven't done it
16 paragraph by paragraph, but if you say so,
17 Mr. Klayman, I have no reason to doubt you.
18 MR. KLAYMAN: Thank you. Well,
19 it's the same.
20 Have you produced any documents in
21 response to this Notice of Deposition?
22 THE WITNESS: Yes.
187
1 BY MR. KLAYMAN:
2 Q Subpoena? Would you please provide
3 them?
4 A I produced them to the Department
5 of Defense.
6 Q You're not producing anything here
7 today?
8 A No. I have nothing to produce
9 other than what I've produced to the
10 Department of Defense.
11 Q Did you search your computer at
12 home?
13 A There was no need to.
14 Q You never searched it?
15 A I did not because there was no need
16 to.
17 Q Did you search the computer in your
18 office, the desktop computer that has a
19 docking station?
20 A Yes, I did.
21 Q How did you search it?
22 A I went through a list of documents
188
1 and of course I had already done this
2 pursuant to another subpoena. I reviewed my
3 list of documents and thought about whether
4 there was anything that would be responsive.
5 MS. WEISMANN: I think there's a
6 question about the authenticity of the
7 document you've provided. On page 17, for
8 example, between the notice of deposition
9 that we got and the one you just had marked
10 as Exhibit 2.
11 MR. MURPHY: That's true, I think,
12 Mr. Klayman. I had one that went through
13 paragraph 48 went through quadruple Y.
14 MR. KLAYMAN: It may be that it was
15 typed out again. I would be happy to check
16 that at a break.
17 MS. WEISMANN: I think we need to
18 take a minute.
19 MR. KLAYMAN: Since you're not
20 producing any documents, anyway.
21 MS. WEISMANN: But I think the
22 record should be accurate.
189
1 MR. KLAYMAN: That's why I said we
2 can do it at a break.
3 MS. WEISMANN: There's a
4 difference.
5 MR. KLAYMAN: So it's now accurate?
6 MS. WEISMANN: No, it's not
7 accurate, but I haven't had the time to
8 confirm whether there are other pages.
9 MR. KLAYMAN: That's fine. I'll
10 bring in the subpoena later, if you prefer,
11 but I wanted to find out whether you had
12 searched for documents in response to either
13 a subpoena or notice of deposition and we'll
14 then identify it later, just to move this
15 thing along.
16 THE WITNESS: Yes, I did.
17 BY MR. KLAYMAN:
18 Q Did you search the notes that you
19 keep, your notepads? Did you search those?
20 A Yes, I did.
21 Q Does your secretary keep a
22 correspondence file, a chron file?
190
1 A She does.
2 Q Was that searched?
3 A She searched it, I believe.
4 Q You're not sure?
5 A I assume she did.
6 Q How do you know she did?
7 A Well, we received a notice from the
8 Department of Defense Attorney's Office and I
9 know that there were people in my office
10 looking through their files in response to
11 the subpoena.
12 Q Who was in your office?
13 MR. MURPHY: What do you mean who
14 was in his office?
15 BY MR. KLAYMAN:
16 Q Who were the people?
17 A Well, my secretary is Melanie
18 Shender. There are three military assistants
19 there. We talked about Mark Huffman before.
20 We talked about Chief Petty Officer West
21 before. Those were the people primarily
22 involved in searching their records.
191
1 Q Did they report to you as to
2 whether they found anything?
3 A They did not. They reported to the
4 attorney's office, the General Counsel's
5 Office.
6 Q So no one ever confirmed to you as
7 to whether they found responsive
8 documentation or not?
9 A No, nor were they instructed to.
10 Q Didn't you consider yourself to be
11 the one ultimately responsible in responding
12 to the document request served on you through
13 the subpoena?
14 MR. MURPHY: I object to that,
15 Mr. Klayman, to the extent that it was in his
16 official capacity.
17 MR. KLAYMAN: He can respond.
18 THE WITNESS: I think I responded
19 responsively.
20 BY MR. KLAYMAN:
21 Q You didn't consider yourself to be
22 involved? It was the involvement of the
192
1 department which really counted?
2 A They got strict instructions on
3 what they were to do and I assumed they
4 carried out those instructions.
5 Q But you never gave the people that
6 did the searching the instructions yourself,
7 did you?
8 A I knew they had the instructions.
9 Q The subpoena, and we're going to
10 make a copy of it and come back to it at a
11 later point, required your testimony in both
12 your personal and official capacities.
13 Do you recollect that?
14 A I do.
15 Q Consequently, are you saying that
16 you didn't have to search yourself as long as
17 the Department of Defense did the search for
18 you?
19 A I told you that I searched my
20 computer disks and that I looked in my
21 notebooks.
22 Q But you never asked the Department
193
1 of Defense to actually report to you as to
2 what was found responsive to the subpoena?
3 MS. WEISMANN: Asked and answered.
4 BY MR. KLAYMAN:
5 Q You can respond.
6 A I believe I have responded.
7 Q What was the first contact that you
8 know of, Mr. Bacon, of any kind from any
9 source that requested information about Linda
10 Tripp's information in her personnel file?
11 A I do not have a -- I cannot give
12 you a specific answer to that question
13 because when the first request for
14 information came to the Department of
15 Defense, I was in Asia.
16 Q When did the first request for
17 information come to the Department of
18 Defense?
19 A They came in January.
20 Q They came in January?
21 A Yes.
22 Q How did those requests come?
194
1 A By phone and in person.
2 Q Who made these requests?
3 A Virtually every news organization
4 in America.
5 Q What was being requested?
6 A They requested all information
7 about Linda Tripp. They wanted to know her
8 grade. They wanted to know her salary. They
9 wanted to know how long she'd worked at the
10 Department of Defense. They wanted to know
11 her title. They wanted to know her security
12 clearance. They wanted to know exactly what
13 her responsibilities were.
14 Q Did anyone request information from
15 her Form 398?
16 A I can't answer that question
17 because, as I said, I was in Asia at the time
18 and these requests were flowing into the
19 Department when I was out of the country.
20 Q Did anyone request information with
21 regard to how she'd answered the question if
22 she'd ever been arrested?
195
1 A I can't answer that question
2 because I was out of the country at the time
3 and it was being handled by my staff.
4 Q Did there come a point in time when
5 you became aware that someone had requested
6 that information?
7 A Yes.
8 Q When was that?
9 A That was on March 12, 1998.
10 Q How did you become aware of that?
11 A I received a telephone call.
12 Q Who did you receive a telephone
13 call from?
14 A Jane Mayer.
15 Q What time of the day was it when
16 you got the call?
17 A I don't remember specifically but
18 it was late in the day. I would say it
19 was 5:30, 6.
20 Q What did Ms. Mayer say to you?
21 A She called me and said that she had
22 information that Linda Tripp had been
196
1 arrested. She asked me, she said did you
2 know that Linda Tripp had been arrested? I
3 said no, I didn't know that. What were the
4 circumstances? She told me the circumstances
5 and she said, "Is there any way of finding
6 out how she answered a specific question on
7 her Security Clearance Form?"
8 Q What circumstances did she tell you
9 were subject to Ms. Tripp's arrest?
10 A She told me that it had happened
11 when Linda Tripp was 19 years old and was
12 working in a resort area during the summer.
13 Q You asked her, of course, how she
14 got that information?
15 A I did not ask her that.
16 Q Did she then offer?
17 A She did not.
18 Q Have you ever met Ms. Mayer before?
19 A Yes, I had.
20 Q Met or talked with her. When did
21 you first meet Ms. Mayer?
22 A I don't know precisely.
197
1 Q How about just roughly?
2 A Early 80's, I would guess.
3 Q How did you meet her?
4 A She worked at the Wall Street
5 Journal.
6 Q How long did she work there?
7 A I don't recall. I believe she was
8 in the Washington Bureau for 4 or 5 years.
9 Q What was her position?
10 A She was a reporter.
11 Q What did she cover?
12 A She covered at one point the White
13 House, I believe, but a variety of other
14 beats. I can't remember specifically.
15 Q You got to know her quite well
16 during that period?
17 A I did not.
18 Q Did you ever have lunch with her?
19 A I do not recall ever having lunch
20 with her.
21 Q Since you had become the Press
22 Secretary of the Defense Department, had you
198
1 had contact with her before she called you
2 that afternoon?
3 A Only once.
4 Q When was that?
5 A She had called me perhaps a month
6 or so earlier to ask me a question about
7 Linda Tripp.
8 Q What did she ask you a month or so
9 earlier?
10 A I don't recall the exact question
11 but I do recall the answer.
12 Q What was the answer?
13 A The answer was that I can't say
14 anything more than I've already said
15 publicly.
16 Q How is it you're able to remember
17 the answer but not the question?
18 A Because that was the answer I gave
19 everybody at that time.
20 Q What changed between the first call
21 and the second call?
22 A Well, I'm not sure that anything
199
1 changed.
2 Q But when she called you the first
3 time, you were under instructions not to
4 provide any information about Linda Tripp to
5 the media?
6 A That was not the case.
7 Q Then why did you tell Ms. Mayer you
8 could not answer any questions about her the
9 first time she called?
10 A I believe she asked me a question
11 that related to both Linda Tripp and Monica
12 Lewinsky and I had said publicly all I was
13 going to say about that and so told her.
14 Q It was your understanding that you
15 were not to comment on those matters?
16 A No, it was not my understanding
17 that I was not to comment on those matters.
18 I chose not to comment.
19 Q When she called you the second
20 time, what date was that?
21 A March 12, 1998.
22 Q What else did she tell you during
200
1 that conversation?
2 A That's all.
3 Q What did you say to her?
4 A I told her that I would check, but
5 I didn't know whether we would be able to
6 locate the information and if we could find
7 it, whether we would be able to make it
8 public, and I cited the Privacy Act.
9 Q Was anything else said during that
10 conversation?
11 A Not that I can recall.
12 Q What happened after that
13 conversation, if anything, with regard to
14 Ms. Mayer's request?
15 A Then I called the person in the
16 Pentagon, Doc Cooke, and recounted, basically
17 recounted the conversation to him verbatim.
18 I said I just got a call from a reporter.
19 She said she has information that Linda Tripp
20 has been arrested.
21 She asked if we could find out how
22 she answered a certain security form, whether