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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