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?