201 1 she admitted to the arrest or not. I told 2 her I didn't know whether we would be able to 3 get the information and, if so, whether we 4 would be able to release it. Is it possible 5 to find out what the facts were. He said, 6 "I'll check." 7 Q Who is Dot Cooke? 8 A He's in charge of Administration at 9 Washington Headquarters Services, WHS, we 10 call it at the Defense Department. 11 Q Is he a political appointee? 12 A No, he's not. 13 Q What's his grade? 14 A I don't know. 15 Q How did you know to call him? 16 A Well, because he's in charge of the 17 administrative side of the Pentagon. 18 Q Had you been trained on who to call 19 for administrative issues at the Pentagon 20 when you became secretary? 21 A No. 22 Q Press Secretary? 202 1 A No. 2 Q I'm just trying to figure out how 3 you knew to call him for this particular 4 matter? 5 A Well, I knew that he would be the 6 person who would know where to get the 7 question answered. 8 Q What did Dot Cooke tell you? 9 A He said, "I'll get back to you." 10 Q Did anything else happen after that 11 with regard to this request for Linda Tripp's 12 personnel file information? 13 A He called me back about 10 or 15 14 minutes later and said that the people who 15 have that information have all gone home. 16 Q Did you say anything? 17 A I said thanks. 18 Q During this period, did you discuss 19 this request of Jane Mayer with anyone else 20 besides Dot Cooke, up to the last 21 conversation with Dot Cooke? 22 MR. MURPHY: I think it's Doc. I 203 1 don't know if you're saying Dot. 2 MR. KLAYMAN: I am saying Dot. 3 THE WITNESS: His name is David O. 4 Cooke and he's called Doc. 5 MR. KLAYMAN: Okay. 6 THE WITNESS: I did not. 7 BY MR. KLAYMAN: 8 Q Did you write down what was being 9 said on any kind of notation in your 10 conversations with Jane Mayer? 11 A I did not. 12 Q Did you write down any part of your 13 conversations with Doc Cooke? 14 A I did not. 15 Q Isn't it your ordinary way of doing 16 things to write down notations when you talk 17 to people on the phone? 18 A No. I write down some things but 19 mainly telephone numbers. If I have to 20 remember facts for my briefings, I write 21 those down. 22 Q What happened after you spoke last 204 1 with Doc Cooke? 2 A I called Jane Mayer back and said, 3 "You can't get the information tonight." 4 Q During the first conversation, did 5 Jane Mayer tell you she wanted the 6 information that day? 7 A She said that she was on deadline. 8 Q Did she say what the deadline was? 9 A I don't believe at that point she 10 told me what the deadline was. 11 Q Now, aside from your having worked 12 with her at the Wall Street Journal and this 13 one other call that you remember the answer 14 but not the question, had you ever talked to 15 Jane Mayer in the intervening years? 16 A I may have seen her once at a book 17 party or something like that, but I'm not -- 18 or at some event, but I have no specific 19 recollection. I can't rule it out, but I 20 have no specific recollection of having met 21 her between the time she left the Wall Street 22 Journal and this phone call, the first phone 205 1 call she made. 2 Q Did you have any contact with 3 anyone else at The New Yorker in those 4 intervening years? 5 A I did not. 6 Q Had you ever met up to the point in 7 time of the second call from Jane Mayer when 8 she asked you -- 9 A I'm sorry. You asked me about The 10 New Yorker. Joe Kline called Secretary 11 Cohen -- called me to talk to Secretary Cohen 12 about his relationship with Secretary 13 Albright, and I arranged a telephone 14 conversation between Secretary Cohen and Joe 15 Kline of The New Yorker on that topic, and 16 that was in 1997. 17 Q Up to the point of the Mayer call 18 where she asked about Tripp's information, 19 had you ever met or talked with Sidney 20 Blumenthal? 21 MR. MURPHY: Asked and answered. 22 THE WITNESS: I have never met or 206 1 talked to Sidney Blumenthal. 2 BY MR. KLAYMAN: 3 Q Have you ever met with or talked 4 with Joe Conason? 5 A I have never met Joe Conason nor 6 have I ever talked to him. 7 Q Have you ever met or talked with 8 Jonathan Broder of Salon Internet? 9 A No, I have not. 10 Q Never talked to him, never met him? 11 A I have never talked to Jonathan 12 Broder. I have never met Jonathan Broder. 13 Q Have you ever talked or met an 14 individual by the name of Murray Waas? 15 A I have not. 16 Q Ever heard of these people, Broder 17 and Waas? 18 A I learned this morning from my 19 attorney who Murray Waas. I learned from you 20 just now who Jonathan Broder was. 21 Q Did you ask your attorney why he 22 was informing you about Murray Waas? 207 1 MR. MURPHY: The name was on your 2 subpoena and he asked me who he was. 3 THE WITNESS: He was the first name 4 on your subpoena and I asked him who is this 5 guy? 6 BY MR. KLAYMAN: 7 Q Had you ever met up to the point of 8 the call, and I'm just going to say, "the 9 call," that was the one where Mayer was 10 asking you for Tripp's information. 11 Had you ever met or talk with James 12 Carville up to that point? 13 A I don't believe I have ever met or 14 talked with James Carville. 15 Q After you met with George 16 Stephanopoulos, the discussion that you 17 recounted this morning, had you ever talked 18 with him after that or met with him after 19 that? 20 A I can't answer that question 21 specifically. I may have run into him at a 22 White House meeting once or twice in 1994 208 1 or '95, but I don't have any specific 2 recollection of that. 3 Q Up to the call of Jane Mayer, had 4 you ever met or talked with Mike McCurry? 5 A Yes. 6 Q Had you ever met or talked with 7 Mike McCurry up to that call about Linda 8 Tripp? 9 A No. 10 Q I'm sorry. What did you say? 11 A I said no, I had not talked to Mike 12 McCurry about Linda Tripp before or after the 13 call. 14 Q Up to the point of the call of Jane 15 Mayer, did you ever talk to anybody in the 16 White House about Linda Tripp? 17 A Not that I recall. 18 Q Does that mean no? 19 A I don't recall having any 20 conversation with anybody in the White House. 21 Q So the answer is no? 22 A The answer is no. 209 1 Q What happened after your last 2 conversation with Doc Cooke with regard to 3 this Linda Tripp release? 4 A I called Jane Mayer back and said 5 that we could not get the information. 6 Q What happened after that? 7 A She said, well, is there a chance 8 that you could get the information in the 9 morning, and I said I don't know. We could 10 check. But I stressed again that I didn't 11 know whether we would be able to release the 12 information once we got it, if we got it. 13 She said, well, maybe I could wait until 14 tomorrow morning to see if there's a chance 15 of getting it then. 16 Q Did she say what she was going to 17 wait for? 18 A No. 19 Q Was it your understanding that she 20 was holding publication of something she was 21 writing? 22 A It was my understanding that she 210 1 had an article that was about to run and that 2 she had a deadline for getting the article 3 into the magazine and she wanted to get some 4 information for the article. 5 Q You understood that that article 6 dealt with Linda Tripp? 7 A Yes. 8 Q You understood the article dealt 9 with the issue of Linda Tripp's arrest, in 10 part? 11 A I understood that that was a part 12 of the article. 13 Q You understood that the article was 14 going to deal with whether or not she 15 truthfully answered a question about that 16 arrest to the Pentagon? 17 A Well, I didn't interview her about 18 what the article was going to say, but I 19 understood that that would be a part of the 20 article. 21 Q So what happened after your last 22 conversation with Jane Mayer? 211 1 MR. MURPHY: You mean the one that 2 he just described? 3 MR. KLAYMAN: Yes. 4 THE WITNESS: After that 5 conversation -- and I don't remember when I 6 did this, whether I did it on Thursday night 7 or Friday morning. I talked to Cliff. Cliff 8 had been out of town, Cliff Bernath, had been 9 out of town. 10 He returned to town and he asked me 11 what was going on and I told him about this 12 phone call that I had received and that I 13 was, that Doc Cooke had not been able to get 14 the information, that he was going to check 15 in the morning. I basically recounted to 16 Cliff my phone conversation with Doc Cooke 17 which was I got this inquiry from the press. 18 We are going to have to get an answer to this 19 question, one way or another. 20 I don't know when we get the answer 21 it will be appropriate to release it or not, 22 but this is what I asked Doc to do. 212 1 BY MR. KLAYMAN: 2 Q What do you mean by you would have 3 to get this information one way or the other? 4 A Well, what we knew as of Thursday 5 afternoon, Thursday evening, was that The New 6 Yorker was going to run a story, was going to 7 make a statement or allegation about Linda 8 Tripp that would raise questions and one way 9 or another we would have to be able to know 10 what the answer was to those questions. 11 Q So what basically you were saying 12 was since The New Yorker was going to run a 13 story that Linda Tripp had been arrested, 14 that we, being the Pentagon, was going to 15 have to check if she had answered the 16 appropriate question about being arrested 17 truthfully or not. 18 You were going to have to do that, 19 at a minimum? 20 A I said that we needed to know that 21 ourselves, yes. 22 Q The reason that you needed to know 213 1 that would be to determine whether or not if 2 the answer was in conflict with what 3 Ms. Mayer reported, an investigation would 4 have to be conducted into Linda Tripp? 5 A Well, I don't think I thought that 6 far ahead at that point. All I knew was we 7 would get questions on it and ultimately we 8 would have to know the answer to the 9 question. 10 Q Is it your position that every time 11 you get a question from the media, you have 12 to know the answer to decide whether or not 13 you're going to release information to the 14 media? 15 A Well, that's not what I said, but 16 in this particular case I think I've 17 explained what my thought process was. 18 Q Some questions are such that you 19 don't have to get information to say I'm not 20 going to provide it. That's your experience, 21 is it not? 22 A That is certainly true. 214 1 Q For instance, if someone asks an 2 outlandish question about some personal 3 aspect of the life of a member of your staff, 4 you're not going to ask that member of your 5 staff for that information just because the 6 question was asked, are you? 7 A The most likely example of what 8 you're trying to talk about would involve 9 national security information. 10 Q But it could also involve personal 11 conduct, correct? 12 A Most questions that I know I can't 13 answer initially have to do with national 14 security information. 15 Q Well, let's take an example. Some 16 member of the media calls in and says, "I 17 want to know whether your secretary ever had 18 a certain medical condition." 19 Now, you're not going to go, based 20 on your experience with your secretary, and 21 ask her that just because some member of the 22 media wants to know that information, are 215 1 you? 2 A That is correct. 3 Q So, consequently, it wasn't 4 necessary for you to get the information 5 about Ms. Tripp to be able to tell Ms. Mayer 6 no, you're not going to get this information? 7 A As I said to you, I said to Doc 8 Cooke and to Cliff, as well, that there were 9 two questions. One, can we get the 10 information and, two, if we get it, can we 11 release it. 12 Q So, consequently, you wanted to get 13 the information because in your own mind you 14 had determined that if Ms. Tripp had answered 15 that she had never been arrested that you 16 were going to initiate an investigation into 17 her? 18 MS. WEISMANN: Asked and answered. 19 MR. KLAYMAN: You can respond. 20 THE WITNESS: No. As I said to you 21 before, I hadn't thought in those terms. 22 BY MR. KLAYMAN: 216 1 Q What did you ask Mr. Bernath to do 2 during that conversation? 3 A Actually, nothing. 4 Q You instructed Mr. Bernath to 5 assist in getting the information about 6 Ms. Tripp, did you not? 7 A What happened was that I said I was 8 going to -- whether this conversation took 9 place on Thursday evening or Friday morning, 10 as I said, I can't recall, but I do recall 11 saying that I would handle the issue. Then 12 he said, "Why don't I take it over?" I said 13 no, I'll handle it. 14 Then I looked at my schedule for 15 Friday and decided that I would not have time 16 to do it and I said, okay, why don't you do 17 it. 18 Q You instructed him to do it? 19 A I did not instruct him to do it. I 20 just told you exactly what our conversation 21 was. 22 Q Well, isn't your saying, "Why don't 217 1 you do it," a statement made by Mr. Bernath's 2 superior, to you an instruction to do it? 3 A I didn't see it as an instruction. 4 He volunteered to do it. I said initially I 5 would do it, then said I can't do it, then 6 said why don't you do it. 7 Q Well, if you couldn't do it, then 8 you would have to instruct somebody else to 9 do it; correct? 10 A Well, I think we're getting hung up 11 on semantics here. I didn't regard it as 12 instruction. He volunteered to do it. I 13 accepted his offer to do it. 14 Q But the reason that he volunteered 15 to do it was because you couldn't do it, 16 correct? 17 A I have no idea why he volunteered 18 to do it, but the reason I asked him to do it 19 was because I determined that I could not do 20 it. 21 Q You asked him to make it a 22 priority, correct? 218 1 A I did not. 2 Q You told him to take your good old 3 time and don't worry about it. Whenever you 4 get to it, that's okay? 5 A I did not characterize the project 6 in any way. I've told you my whole 7 conversation with him about this. 8 Q But you'd already told Ms. Mayer 9 that you were going to try to provide her the 10 information by the following morning, 11 correct? 12 A I said I would find out whether we 13 had the information and whether we could 14 provide it. 15 Q Now, to be able to say that you 16 were going to provide it by the following 17 morning means it's a priority; correct? 18 A You're using the word, "priority." 19 I never used it. 20 Q Somebody calls you the evening of 21 one day and you tell her you're going to get 22 back to her the next day and you have your 219 1 employee, Mr. Bernath, volunteer, as you put 2 it, to get the information. Now, didn't you 3 tell Mr. Bernath that we needed the 4 information by the next morning? 5 A I told him that Jane Mayer had said 6 she was on a deadline, and I'm not sure how 7 specific I was about this deadline but he 8 understood, I believe from what I told him, 9 that she was on a deadline. 10 Q Therefore, based upon the 11 information that you provided to Mr. Bernath, 12 he concluded it was a priority? 13 A He concluded it was a priority but 14 I never used that word. 15 Q But you made it clear that you had 16 to get back to Ms. Mayer the next morning? 17 MS. WEISMANN: He's already 18 described the substance of his discussion. 19 We're going over and over the same issue. 20 Why don't you move on. 21 MR. KLAYMAN: That's inappropriate. 22 I really don't care for the intonation, for 220 1 the approach, for the attitude. I think it's 2 unnecessary. It would be nice if we could 3 all get along here and just do our job, but I 4 ask you not to interrupt the questioning. 5 Let me finish and get the answer. If you 6 want to object and move to strike, feel free. 7 MR. MURPHY: Mr. Klayman, it takes 8 two to tango. What's your next question? 9 MR. KLAYMAN: You know, I haven't 10 heard much out of you, Mr. Murphy, except 11 wisecracks throughout this entire deposition. 12 I ask that you stop that, as well. The first 13 time maybe it was funny. At this point it's 14 not funny. It's clear that it's part of the 15 strategy to try to interrupt me and to 16 disrupt the deposition. 17 MR. MURPHY: I'm not trying to 18 interrupt you. I'm trying to get you going. 19 MR. KLAYMAN: Then don't say 20 anything and I'll get going. 21 Would you read back the last 22 question. 221 1 (The reporter read the record as 2 requested.) 3 MR. KLAYMAN: You can answer. 4 THE WITNESS: Well, as I said first 5 of all, I can't recall whether I had this 6 conversation on Thursday evening or Friday 7 morning. What I made clear to Cliff Bernath 8 was that Jane Mayer had told me that she was 9 on a deadline. 10 BY MR. KLAYMAN: 11 Q You told him that you had to get 12 back to her the next morning? 13 A I think I've just told you what I 14 told him. 15 Q Is that what you told him? 16 A We were either going to meet the 17 deadline. We were going to be able to find 18 this information or not, and if we found it 19 we were going to be able to provide it or not 20 and we would make the decision, as we made 21 the decision. 22 Q The next morning? 222 1 A Well, that was her deadline. She 2 had said it was sometime that morning. 3 Q You conveyed that to Mr. Bernath? 4 A Yes. 5 Q What happened after that? 6 A After that, basically I went off to 7 a series of meetings and when I came back 8 several hours later, Cliff Bernath came in 9 with a form, a 171 form. I looked at the 10 form and I said I don't think this is 11 responsive to the question. It may be that 12 this information just isn't available. 13 Q You said that to Mr. Bernath 14 because you had informed him the previous 15 evening that Ms. Mayer had information that 16 Ms. Tripp had been arrested? 17 MS. WEISMANN: I object to the 18 question to the extent it mischaracterizes 19 his testimony. 20 BY MR. KLAYMAN: 21 Q You can respond. 22 A Could you repeat the question. 223 1 Q You had told Mr. Bernath the 2 previous evening that Ms. Mayer had told you 3 that Ms. Tripp had been arrested? 4 A Yes. Well, either the previous 5 evening or whenever I talked to Cliff Bernath 6 about this. But my recollection is that I 7 told him exactly what Jane Mayer told me, 8 which was that she had information that Linda 9 Tripp had been arrested. 10 Q The Form 171 did not contain that 11 information? 12 A I can't remember specifically what 13 it had on it but it was not germane to this 14 question. 15 Q So what, if anything, happened 16 after that? 17 A Well, after that I left and went 18 off to some other meetings. When I came 19 back, Cliff Bernath came in with another 20 form. 21 Q What form was that? 22 A It was the form he'd been asking me 224 1 about. 2 Q Did you instruct Mr. Bernath to get 3 that other form? 4 A I did not. 5 Q You just told him that this isn't 6 what we need; go get what we need? 7 A I told you what I said to him. 8 Q Well, that's the effect of it, 9 isn't it? That's the gist of it. "This 10 doesn't contain the information we need. Go 11 get me the information that was requested"? 12 A That's not what I said. 13 Q Isn't that the gist of it? 14 A That's not what I told you I said. 15 Q Well, straighten me out because 16 that's what I thought you said. 17 A That's not the gist of it. What I 18 said was I said that this form was not 19 germane. Maybe we can't get the information. 20 Q You then told Mr. Bernath to go try 21 to find it, correct? 22 A I did not. 225 1 Q You told him to see what could be 2 done to get the information? 3 A I did not. I said this form was 4 not germane. This doesn't answer the 5 question. Maybe we can't get the form. 6 That's what I said. 7 Q What lead you to believe that you 8 couldn't get the form? 9 A We hadn't gotten it then and I'm 10 not an expert on forms. 11 Q You're not a very persistent guy, 12 are you? 13 MR. MURPHY: Objection. 14 MR. KLAYMAN: You can respond. Do 15 you frequently just give up like that? "I'm 16 sorry. It doesn't have the information on 17 it, so let's forget about it." 18 Is that your way of doing business, 19 Mr. Bacon? 20 MS. WEISMANN: Object to the 21 characterization of the testimony. 22 THE WITNESS: I think I've 226 1 explained to you what happened here. 2 BY MR. KLAYMAN: 3 Q So it's correct to say that when 4 the 171 Form came back, as far as you were 5 concerned, that was it. The request was not 6 able to be fulfilled? 7 A I told you exactly what I said to 8 him. 9 Q I don't understand because it 10 doesn't make any sense to me. That's why I'm 11 asking the question. 12 MR. MURPHY: It doesn't have to 13 make any sense to you, Mr. Klayman. 14 MR. KLAYMAN: Everything makes 15 sense, Mr. Murphy. There's a reason for 16 everything. 17 Now, did you then terminate the 18 request to look for that information, 19 Mr. Bernath? 20 THE WITNESS: No. I told you 21 exactly what happened, sir. 22 BY MR. KLAYMAN: 227 1 Q You told him to stop looking? 2 A I did not say that, did I? Could 3 you go back and read my answer? 4 MR. MURPHY: No, that's all right. 5 Mr. Klayman remembers your answer. 6 THE WITNESS: I told him that the 7 form he showed me did not answer the question 8 and I said perhaps we can't answer this 9 question. Then I left and went off to 10 another meeting. 11 BY MR. KLAYMAN: 12 Q What information did you have at 13 the time that you made that statement that 14 there wasn't some other form that did contain 15 the information? 16 A Well, I didn't know whether there 17 was another form or there wasn't. I have no 18 idea and I had no idea then and in fact have 19 no idea now how long these forms are kept or 20 where they're kept, whether they're kept in 21 Washington, whether they're kept in 22 warehouses in Idaho. I have no idea. 228 1 Q Did you ask anyone to determine at 2 the time that Mr. Bernath came back with 3 Form 171 whether there were other forms that 4 would contain the information that was 5 requested by Ms. Mayer? 6 A I did not. 7 Q So in your own mind at that point 8 the request to Ms. Mayer was not going to be 9 able to be fulfilled? 10 MS. WEISMANN: Mr. Klayman, he's 11 now gone over this subject ad nauseum. I ask 12 that you move on to something else. 13 MR. KLAYMAN: You can respond. 14 MS. WEISMANN: I think at this 15 point it's turning into badgering the witness 16 and I think you need to move on. He's a high 17 ranking official within the Department of 18 Defense, and move on to more relevant 19 inquiries, please. 20 MR. KLAYMAN: Ms. Weismann, I ask 21 that you have some decorum in this deposition 22 and that you show some respect to me, to the 229 1 Court and judicial watch. I'm entitled to 2 ask questions. 3 MS. WEISMANN: I think the 4 deposition transcript will speak for itself. 5 BY MR. KLAYMAN: 6 Q At that point in time did you 7 consider the request of Ms. Mayer to be no 8 longer in effect because you couldn't get the 9 information? 10 A I don't think I thought of it in 11 those terms. I mean, everyday we get asked 12 questions that either we can't answer or 13 can't answer in the time allotted to us to 14 answer them. All I said to Cliff was this 15 form you showed me is not germane. It's not 16 the right form. Maybe we can't get the 17 information. That's what I said. 18 Q But to be absolutely clear, you 19 never asked him to find out whether other 20 forms contained the information? 21 A I did not. 22 Q You never asked anybody else? 230 1 A No. 2 Q So the matter was over? 3 MR. MURPHY: Objection. 4 BY MR. KLAYMAN: 5 Q You can respond. 6 A I didn't instruct him to do one 7 thing or another. I didn't say terminate it 8 or keep going. 9 Q At that point did you make any 10 effort to contact Ms. Mayer after you had 11 this conversation with Ms. Mayer just to tell 12 her that you couldn't get the information? 13 A I did not. 14 Q So what happened after that? 15 A After that I came back to the 16 office after an hour or two -- I don't 17 actually recall how long -- and Cliff showed 18 me another form. Actually, he just showed me 19 a page of a form. 20 Q Did you speak first or did he speak 21 first? 22 A He said, "I think this is the 231 1 form." 2 Q During the prior conversation when 3 he came back with the 171, was anyone else 4 present? 5 A No. 6 Q During this conversation when he 7 came back with another form where he said, "I 8 think this is the form," was anyone else 9 present? 10 A No. 11 Q What did you say? 12 A I looked at the form and I said it 13 looks like it is. 14 Q What time of the day was this? 15 A I would guess somewhere around 16 noon. 17 Q What, if anything, happened after 18 that? Did you keep custody of the form? 19 A No. 20 Q Did you make a photocopy of it? 21 A I did not. 22 Q You read the form? 232 1 A Well, I read two lines on the form 2 or one line on the form. 3 Q Which lines did you read? 4 A I can't recall what lines, but it 5 was basically the question, "Have you ever 6 been arrested?" 7 Q What else was discussed during that 8 conversation with Mr. Bernath? 9 A At that point Mr. Bernath -- I 10 said, "This looks like it's the form." He 11 said, "I guess that we can tell her we got 12 the information." I said, "I guess we can." 13 Q What happened after that? 14 A I presume that he told her. 15 Q You didn't instruct him to call 16 Ms. Mayer? 17 A No. 18 Q He did that on his own? 19 A Yes. 20 Q But he understood from prior 21 conversations with you that Ms. Mayer was to 22 be contacted with that information once it 233 1 was found? 2 A Well, what he understood and what I 3 understood was that he was going to take the 4 matter over. I was fully aware of what he 5 was doing. 6 Q At the point that you saw the 7 information that Ms. Mayer had requested on 8 the Form 398, did you tell Mr. Bernath to go 9 check as to whether or not it could be 10 released under the Privacy Act or any other 11 legal provision? 12 A Unfortunately, I did not. 13 Q Did Mr. Bernath tell you he was 14 going to check to see whether it could be 15 released under the Privacy Act? 16 A He did not. 17 Q So at the time that you saw this 18 information on Form 398, you really didn't 19 care one way or the other whether it was 20 released to Ms. Mayer and whether or not it 21 violated the Privacy Act? 22 A I think looking back on it, I wish 234 1 I had asked the question about the Privacy 2 Act but I did not. As I said, I mentioned it 3 to Jane and I mentioned it to Doc Cooke. In 4 recounting my conversation to Doc Cooke to 5 Cliff, I had mentioned it to him, but beyond 6 that I had not mentioned it. 7 Q At the time that Mr. Bernath came 8 back with Form 398 and you saw that that 9 contained the information that Ms. Mayer 10 wanted, were you on any medication? 11 A No. 12 Q Were you suffering from any flu or 13 other type of illness? 14 A No. 15 Q Was your mental ability impaired in 16 any way? 17 A No more impaired than it usually 18 is. 19 Q Was there anything that was going 20 on that was out of the ordinary in the office 21 or in your personal life? 22 A No. It was a very busy day, but 235 1 that's not out of the ordinary. 2 Q Have you ever been prone to lapses 3 of memory? 4 A I think I'm prone to the same 5 memory problems that afflict any 53 year old. 6 Q So is it correct to say that from 7 that very point that you told Mr. Bernath 8 that your schedule was full and couldn't 9 handle this thing and, according to you, he 10 volunteered to take it over, that you played 11 a very passive role? 12 A I played a passive role but I -- 13 yes. 14 Q It's your position that once he 15 said that he was volunteering to take it 16 over, you had no further responsibility in 17 the matter? 18 MR. MURPHY: Objection. You can 19 answer. 20 THE WITNESS: As I said, I dealt 21 with this basically in very short periods of 22 time stretched out over a busy morning and I 236 1 basically relied on his judgment. 2 BY MR. KLAYMAN: 3 Q My question was whether you 4 continued to be in a position of 5 responsibility with regard to Mr. Bernath. 6 A As I said to you before, I was very 7 aware of what Mr. Bernath was doing and I did 8 nothing to stop it. 9 Q What happened after that, after 10 Mr. Bernath came back with Form 398 and 11 showed you that he had the information? Do 12 you know whether or not he subsequently 13 contacted Ms. Mayer? 14 A Subsequently he told me that he had 15 contacted her. 16 Q When did he tell you that? 17 A I would say it was an hour or two 18 later. 19 Q He reported back to you? 20 A Yes. 21 Q Where did that communication occur? 22 A In my office. 237 1 Q Was anyone else present? 2 A No. 3 Q What did Mr. Bernath specifically 4 tell you? Did you speak first or did he 5 speak first? 6 A I don't recall. 7 Q You asked him, "Did you do what I 8 had asked?" 9 A I don't believe that happened. I 10 believe he came in and said, "I talked to 11 Jane Mayer." But, as I said, I don't 12 specifically recall. 13 Q Did he tell you what he had done? 14 A No. I think he was very cryptic. 15 Q In that interim period were you 16 aware of whether or not the release of 17 information had been reviewed by a Freedom of 18 Information or Privacy Act officer at the 19 Department of Defense? 20 A I was aware that I had not asked 21 for such a review. 22 Q But you didn't know whether anyone 238 1 else had conducted a review? 2 A No. 3 Q What else did Mr. Bernath tell you 4 when he came back? 5 A That's all I recall. 6 Q He told you what Ms. Mayer had told 7 him? 8 MR. MURPHY: Did Mr. Bernath tell 9 Mr. Bacon what Ms. Mayer had said? 10 MR. KLAYMAN: Yes. 11 THE WITNESS: Not that I recall. 12 MR. KLAYMAN: Let's take a 5-minute 13 break. 14 (Recess) 15 MR. KLAYMAN: Just let the record 16 reflect that we got a call from the Court 17 clerk that the judge has seen Judicial 18 Watch's motion for emergency relief, that the 19 Court must deal with an emergency and cannot 20 hear the motion today. Go as far as we can. 21 MS. WEISMANN: Mr. Klayman, is 22 there a time when that call was received? 239 1 MR. KLAYMAN: No, there is not. 2 It's on a card. 3 Now, Mr. Bacon, when Mr. Bernath 4 came back with the information on Form 398, 5 he told you that he was going to release the 6 information to Ms. Mayer, didn't he? 7 THE WITNESS: I think -- I can't 8 recall whether he told me or whether he said 9 sort of put it in terms of a question, "Is 10 this the information that she want? Should I 11 release it?" I don't recall whether he said 12 I'll release this or ask me a question. 13 BY MR. KLAYMAN: 14 Q But you got the impression that he 15 was going to give it to her, correct? 16 A Yes. 17 Q Now, up to the point that we broke, 18 I believe that you were having a meeting with 19 Mr. Bernath in your office and that occurred 20 was it before or after he released the 21 information to Ms. Mayer? 22 A Well, I think that I've told you 240 1 about three small meetings that I had, maybe 2 four small meetings that I had with 3 Mr. Bernath depending on whether the first 4 meeting was on Thursday night or Friday 5 morning, but there were three or four small 6 meetings that I had with him. By "small," I 7 mean brief, on Friday. 8 Q Which was the last one we were 9 discussing before we broke? 10 A We were discussing the same one we 11 started discussing after the break. 12 Q That was my question. I mean, I 13 guess you're trying to be humorous. 14 A No. I thought you were asking the 15 question. 16 Q Was this the third meeting? 17 A Didn't you just ask me a question 18 about what did he say when he came in with 19 the form? 20 Q Was this the third meeting? 21 A It was either the third or the 22 fourth meeting, depending on whether the 241 1 first meeting was Thursday night or Friday 2 morning. 3 Q Well, the point is he came back 4 with the correct form, right? 5 A That's correct. 6 Q You saw it. You got the impression 7 he was going to give it to Mayer? 8 A Right. 9 Q He then went off and provided the 10 information to Mayer, correct? 11 A Right. 12 Q Came back into your office and tell 13 you what he had done? 14 A I believe that was sometime later 15 that he came back in and told me. 16 Q Tell me about that meeting. 17 A Well, I can't recall too much about 18 it. He just said that he had provided the 19 information. 20 Q Did he tell you that he had had a 21 discussion with Ms. Mayer? 22 A Not that I recall. 242 1 Q Was this meeting in your office? 2 A Yes, it was. 3 Q Was anyone present? 4 A Mr. Bernath. 5 Q Anyone else? 6 A No. 7 Q What else was discussed during that 8 meeting? 9 A I think that was basically it. 10 Q Did he tell you during that meeting 11 Ms. Mayer was going to send a copy of her 12 article once it came out? 13 A I'm not sure he told it to me then, 14 but he did tell it to me sometime in the 15 afternoon. 16 Q Was there anything else discussed 17 during that meeting? 18 A There was some meeting -- he showed 19 me some guidance that he had drafted. I 20 think that was much later in the day. It was 21 around 6 o'clock. 22 Q He showed you some guidance? 243 1 A Well, he basically showed me a 2 piece of paper that said if a question arises 3 about this article over the weekend, here's 4 the response. 5 Q You instructed him to prepare such 6 a piece of guidance? 7 A He prepared this on his own. 8 Q Was this distributed to anyone? 9 A It was distributed to the duty 10 officer who was handling the weekend duty. 11 Q What did that guidance refer the 12 recipient of the inquiry to do? 13 A It asked the person to say -- 14 MS. WEISMANN: Wait. I'm going to 15 instruct at this point that the witness not 16 reveal the contents of this guidance. It's 17 protected under the deliberative process 18 privilege. 19 MR. KLAYMAN: Do you know what his 20 conversation is such that you can make that 21 statement, you can make that objection? 22 MS. WEISMANN: My objection stands, 244 1 sir. 2 MR. KLAYMAN: Are you aware of what 3 he's about ready to testify? 4 MS. WEISMANN: I have made my 5 objection, sir. 6 MR. KLAYMAN: You're not going to 7 answer that question? 8 Certify it. You told Mr. Bernath 9 to provide the information to Ms. Mayer, 10 didn't you? 11 THE WITNESS: Well, I think I have 12 run through that already. I certainly was 13 aware of what he was doing. 14 BY MR. KLAYMAN: 15 Q Did Mr. Bernath ever say anything 16 to you once he got that Form 398, "Should I 17 call her or should you call Ms. Mayer?" 18 A No, not that I recall. 19 Q So at that point you were not sure 20 whether Ms. Mayer would ever get the 21 information because no one had made a 22 commitment as to who was going to call her? 245 1 A Well, that's not an accurate 2 statement. 3 Q Why is that not accurate? 4 A Well, because Cliff had taken this 5 over. I knew exactly what he was doing. I 6 assumed he would follow through on it and he 7 knew I assumed that. 8 Q But that was never expressly 9 stated? 10 A No. 11 Q In fact, when you first talked with 12 Ms. Mayer you told her that you were going to 13 get back to her with the information, 14 correct? 15 A Well, when I got back to her on 16 Thursday night -- 17 Q Isn't that what you said the first 18 time? 19 A I don't believe I said that I would 20 call her back with the information. I don't 21 believe I ever obligated myself to do that. 22 Because, remember, as I have already stated 246 1 several times, my response to Ms. Mayer was 2 one, I don't know whether we would be able to 3 get the information and, two, if we get it, 4 whether we would be able to release it. 5 Q But you did tell her you were going 6 to get back to her any either way as a matter 7 of courtesy? 8 A We did. 9 Q You told her that, didn't you? 10 A Well, I think it was understood 11 that I would get back to her, one way or 12 another. 13 Q Are you saying you never said, 14 "I'll get back to you with this information, 15 Ms. Mayer"? 16 A I don't believe I ever said that to 17 her. 18 Q So Ms. Mayer just hung up without 19 any commitment, one way or the other as to 20 whether she would ever learn the answer to 21 her questions? 22 A That is correct. 247 1 Q In your vast experience in dealing 2 with the media, is it your understanding that 3 reporters are always so passive? 4 A I think reporters understand that 5 some questions can we answered and some 6 can't. 7 Q So Ms. Mayer's understanding was, 8 as far as you understood it, that she may 9 never hear from you again after that first 10 conversation? 11 MR. MURPHY: I object to what his 12 answer is as to what Ms. Mayer's 13 understanding was. 14 MR. KLAYMAN: He can respond. 15 THE WITNESS: Well, I think I 16 explained what I -- I have no idea what 17 Ms. Mayer understood. 18 BY MR. KLAYMAN: 19 Q During the time that you were with 20 the Wall Street Journal, were you ever 21 accused of publishing anything that was false 22 or misleading? 248 1 A Not that I can recall. 2 Q You're saying you may have been 3 accused but you can't remember? 4 A Well, I could have been accused but 5 maybe the accusation wasn't made to me. But 6 I don't believe that I was accused of 7 printing anything that was false or 8 misleading. 9 Q Are you aware of any criticism that 10 was leveled against you for a lack of 11 truthfulness or veracity? 12 A I am not. I'm certainly aware that 13 there were objections to stories I wrote, but 14 I don't think that they criticized my 15 veracity or truthfulness. 16 Q Have you ever been convicted of a 17 crime, even a misdemeanor? 18 A No. 19 Q Have you ever plead guilty to a 20 misdemeanor? 21 A Is a misdemeanor a traffic offense? 22 Q Yes. 249 1 A I have plead guilty to parking 2 infractions, violations. 3 Q Tell me what happened after this 4 last conversation with Mr. Bernath concerning 5 the Tripp matter. 6 A What happened after the last 7 conversation? 8 Q Yes. Did you have any subsequent 9 conversations with Ms. Mayer? 10 A I did not -- well, not for several 11 weeks. 12 Q What happened after several weeks? 13 A After about -- I can't recall 14 exactly the time, but within 2 or 3 weeks 15 after my initial conversation, after my 16 conversation with her on Thursday, the 12th 17 of March, she called me to ask me a question 18 about something I had said at a briefing 19 about Linda Tripp. 20 Q What did she ask you? 21 A She asked me if I could expatiate 22 on the statement I had made. 250 1 Q Expatiate? 2 A Expand. 3 Q What did you tell her? 4 A No. 5 Q What was the statement you had 6 made? 7 A The statement I made was about the 8 conclusion of the investigation into whether 9 or not she had lied on the security form. 10 Q That was Ms. Tripp's investigation? 11 A Yes. 12 Q Now, was anything else discussed 13 during that conversation? 14 A Not that I recall. 15 Q Have you heard from Ms. Mayer after 16 that? 17 A I heard one other -- I heard from 18 her one other time after that. 19 Q When was that? 20 A I would say it was a week or so 21 after the conversation I just described. 22 Q Who called who?
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of this Deposition