251
1 A She called me.
2 Q What did she ask you or what did
3 she discuss with you?
4 A She asked me if she thought it
5 would be appropriate for her to write --
6 well, first she asked me if there was
7 anything new on the Tripp thing and I said
8 no. Then she said she was thinking of
9 writing a letter to the Editor of The
10 Washington Post in response to a column that
11 had been written by Nat Hentoff and did I
12 think that was appropriate. I said I
13 couldn't really comment on that or not. That
14 was her choice.
15 Q Did she tell you what the column
16 was about that Nat Hentoff had written?
17 A Well, I had read the column. I
18 knew what it was about.
19 Q What was it about?
20 A It was about the Privacy Act.
21 Q What specifically did she tell you
22 she wanted to write about?
252
1 A She told me that she thought that
2 the focus of attention had been put on the
3 Privacy Act rather than on Linda Tripp
4 herself, and she said that she was thinking
5 of writing a letter to The Washington Post
6 discussing this.
7 Q She told you that in her view the
8 wrong individuals were being blamed, that it
9 was Linda Tripp who deserved the blame?
10 A She told me that she felt that the
11 press was missing the import of what had
12 happened.
13 Q Did you ask Ms Mayer why are you
14 taking this position as a reporter trying to
15 put the emphasis on Linda Tripp as opposed to
16 the release of information? Did you ask her
17 that?
18 A I did not.
19 Q Didn't you find it peculiar that
20 she was so very concerned about whether or
21 not Linda Tripp receive the appropriate
22 attention for her acts?
253
1 A I guess I didn't ask myself that
2 question. I rarely psychoanalyze reporters
3 when they call me.
4 Q Are you aware that Ms. Mayer is a
5 former colleague of Sidney Blumenthal?
6 A I have read that.
7 Q You know who Sidney Blumenthal is,
8 don't you?
9 A I have read who he is, yes.
10 Q You know he works under Mike
11 McCurry in the Communications Department?
12 A I don't know specifically where he
13 works in the White House.
14 Q You, of course, found it peculiar
15 that she was asking you whether her letter to
16 the Editor was appropriate?
17 MS. WEISMANN: Objection.
18 Mischaracterizes the testimony, but he can
19 respond.
20 THE WITNESS: I guess I didn't
21 think about it that much. I thought -- yes,
22 I suppose I did think it was somewhat
254
1 peculiar.
2 BY MR. KLAYMAN:
3 Q You had never had a reporter ask
4 you for permission to do anything before, had
5 you?
6 A That's not true. Reporters
7 frequently approach me with ideas.
8 Q With what?
9 A Ideas.
10 Q No, she's asking you whether it was
11 appropriate. You're not her superior, are
12 you?
13 A As I told you, I didn't comment on
14 it.
15 Q You are, in fact, a political
16 appointee of the Clinton Administration,
17 correct?
18 A I am a political appointee.
19 Q She's asking for your permission to
20 write the letter to the Editor.
21 MR. MURPHY: Objection.
22 THE WITNESS: I don't think she was
255
1 asking for my permission at all. I think
2 that's a mischaracterization.
3 She was really informing me of what
4 she was thinking of doing.
5 BY MR. KLAYMAN:
6 Q Up to that point in time when she
7 called you, and when was this, specifically?
8 A I told you I can't remember
9 specifically when it was.
10 Q Within the last few weeks?
11 A Well, you can find out by looking
12 up the letter in The Washington Post. It was
13 probably about a week before that. Several
14 days.
15 MR. KLAYMAN: I'll show you what
16 I'll ask the Court reporter to mark as
17 Exhibit 3.
18 (Bacon Deposition Exhibit No. 3
19 was marked for identification.)
20 BY MR. KLAYMAN:
21 Q Exhibit 3 is a column by Nat
22 Hentoff, The Washington Post, "Linda Tripp's
256
1 Privacy." Is this the article to which you
2 just referred that Ms. Mayer said she was
3 going to write a letter to the Editor in
4 response to?
5 A I haven't read the entire thing,
6 but it does appear to be that article.
7 Q Is that the article?
8 A Yes.
9 MR. KLAYMAN: I'll show you what
10 I'll ask the Court reporter to mark as
11 Exhibit 4, which is a letter to the Editor of
12 Ms. Jane Mayer.
13 (Bacon Deposition Exhibit No. 4
14 was marked for identification.)
15 BY MR. KLAYMAN:
16 Q Is that the letter that Ms. Mayer
17 wrote that she discussed with you?
18 A Yes, it is. But I would say
19 "discussed" may be overdramatizing what she
20 did. She said she was thinking of writing a
21 letter.
22 Q Did you ever see a draft of her
257
1 letter to the Editor before it was published?
2 A I did not.
3 Q Now, from the point of that first
4 conversation with Ms. Mayer when she
5 requested the information, which ultimately
6 Mr. Bernath released, up to these last two
7 calls that you have just testified to, you
8 hadn't had any contact with Ms. Mayer,
9 correct?
10 A Could you repeat the question,
11 please.
12 Q Between the date of the initial
13 call where she asked you for the information
14 that evening up to the point of these last
15 two calls, you never had any contact with
16 Ms. Mayer. That was all Mr. Bernath who had
17 communicated with her?
18 A That is correct.
19 Q Are you aware that before this last
20 call where she asked you whether or not it
21 was appropriate to send this letter to The
22 Washington Post, are you aware that she had a
258
1 conversation with Mr. Bernath about an
2 inquiry from Tucker Carlson of The Weekly
3 Standard?
4 A No.
5 Q Have you subsequently learned that
6 there was a conversation between Mr. Bernath
7 and Ms. Mayer about Tucker Carlson?
8 A I learned that this morning from my
9 attorney.
10 Q Were you aware that Ms. Mayer had
11 also asked Mr. Bernath for instructions how
12 to respond to an inquiry by Tucker Carlson?
13 A I was not.
14 Q But you learned that this morning,
15 as well?
16 A I don't believe I learned that this
17 morning.
18 Q What did you learn?
19 A I learned what I told you I
20 learned.
21 Q What was that?
22 A I stated I learned this morning for
259
1 the first time that Jane Mayer had, as you
2 said, called Cliff Bernath and mentioned that
3 Tucker Carlson was making inquiries.
4 Q Now, throughout this entire period
5 did you record any of these events that you
6 testified to over the last few hours in
7 writing?
8 A The only event I recorded was Jane
9 Mayer's initial phone call on March 12, 1998.
10 Q How did you record that?
11 A I wrote it down in a notebook.
12 Q You haven't produced that to us,
13 have you?
14 A I produced it to the Department of
15 Defense.
16 MR. KLAYMAN: Has this been
17 produced to us?
18 MS. WEISMANN: Yes, it has. I
19 believe it's page 81 of the document
20 production of the Department of Defense.
21 MR. MURPHY: Mr. Bacon indicates
22 that's it.
260
1 MR. KLAYMAN: It's all been blotted
2 out.
3 MR. MURPHY: Why don't you ask him
4 about it?
5 MR. KLAYMAN: I'll have it marked.
6 In fact, let me give to Mr. Bacon what I'll
7 ask the Court reporter to mark as Exhibit 5.
8 MS. WEISMANN: Actually, I think
9 you might want to look at page 82, which I
10 believe is the cover, the notebook cover. I
11 believe those are the two.
12 MR. KLAYMAN: This is the document
13 production of the Department of Defense
14 pursuant to the subpoena issued and served to
15 it and it's now Exhibit 5.
16 (Bacon Deposition Exhibit No. 5
17 was marked for identification.)
18 MR. KLAYMAN: Exhibit 5 is a
19 document which consists of a cover letter of
20 May 6, 1998, two pages, a document log
21 called, "Responsive Documents in the custody
22 of the Department of Defense that have been
261
1 withheld from production in response to
2 Plaintiffs' Subpoena Duces Tecum to the
3 Department of Defense." This is a document
4 of 1, 2, 3, 4, 5, 6, 7, 8, 9 pages and then
5 documents Bates Numbered 1 through 105; is
6 that correct, Mr. Bacon?
7 MR. MURPHY: It seems to be.
8 THE WITNESS: Yes.
9 BY MR. KLAYMAN:
10 Q Ms. Weismann has just directed my
11 attention to documents which have been Bates
12 numbered that is numbered 80 and 81. Is this
13 the notation that you've just referred to
14 that you made during your initial
15 conversation with Ms. Mayer?
16 A That is correct.
17 Q Look at page 80. This is the cover
18 page of your notebook?
19 A Yes.
20 Q These are the types of notebooks
21 that you keep?
22 A Yes. This answers your question
262
1 about the size of my notebook.
2 Q The second page is the note which
3 you made with regard to the conversation with
4 Ms. Mayer?
5 A That's correct.
6 Q That's your handwriting on the top?
7 A That is.
8 Q It says "Jane Mayer," and then
9 "H301 652-3409. That was her home phone
10 number which she gave you; correct?
11 A Correct.
12 Q The number 202-296-5 -- what does
13 that say?
14 A I believe it's an 8.
15 Q 5840?
16 A Yes.
17 Q That was her work number?
18 A That is correct.
19 Q The reason she gave you those
20 numbers is because she wanted to get a quick
21 response, correct?
22 A She gave me those numbers because
263
1 she wanted me to call her back.
2 Q It's because she wanted the
3 information quickly, correct?
4 A It's usually difficult to call
5 people back without phone numbers.
6 Q But she wanted the information
7 quickly, correct?
8 A She wanted the information quickly,
9 yes.
10 Q Now, why is it that your notes are
11 blacked out?
12 A Because they're not germane to Jane
13 Mayer.
14 Q They don't concern Jane Mayer at
15 all?
16 A They do not.
17 Q Do they concern Linda Tripp?
18 A They do not.
19 Q What subject matter do they
20 concern?
21 MS. WEISMANN: I'm going to direct
22 the witness not to answer. I'll note for the
264
1 record that there is a notation in the margin
2 in the blacked out portion indicating "NR"
3 which, according to the index which is found
4 prior to the first page of this, means not
5 responsive. I stand corrected. It's not in
6 the index.
7 MR. KLAYMAN: That's outrageous
8 that it's not in the index. That's
9 unbelievable.
10 MS. WEISMANN: I don't know that
11 I'll characterize it as outrageous, but let
12 me tell you, for the record, that the
13 notations "NR" stand for "Not Responsive."
14 It is the exact same notation we use with
15 respect to Mr. Bernath. It is no deviation.
16 MR. KLAYMAN: Were you trying to
17 slip this by us, Ms. Weismann?
18 MS. WEISMANN: Absolutely not, sir,
19 and I think that's an outrageous suggestion.
20 MR. KLAYMAN: Well, it looks that
21 way to me.
22 MS. WEISMANN: Well, I think the
265
1 document speaks for itself.
2 Going to the question at hand, I
3 will allow Mr. Bacon to very generally
4 describe the subject matter if he desires,
5 but I'm not going to allow him to get into
6 the substance of it because it's outside the
7 scope of what he's been authorized to testify
8 to.
9 BY MR. KLAYMAN:
10 Q Please, generally describe the
11 subject matter of what's been blacked out.
12 A Bosnia.
13 Q It deals with Bosnia?
14 A Yes.
15 MR. KLAYMAN: Are you willing to
16 submit this document in camera to the Court?
17 MS. WEISMANN: Not at the present
18 time.
19 MR. KLAYMAN: One page. 81. Are
20 you willing to submit it in camera to the
21 Court, Ms. Weismann?
22 MS. WEISMANN: We have provided the
266
1 document subject to objections. If you
2 challenge those objections, you know
3 procedurally what you need to do.
4 MR. KLAYMAN: If it's only one
5 page, why don't we eliminate the time and
6 expense for everybody?
7 MS. WEISMANN: It's completely
8 unnecessary. The witness has just testified
9 that the subject was Bosnia.
10 MR. KLAYMAN: Have you seen the
11 document, Ms. Weismann?
12 MS. WEISMANN: We have made our
13 objections. Our objections stand. If you
14 disagree with our document production, you
15 may file a formal motion and we will respond.
16 MR. KLAYMAN: Have you or anyone at
17 the Department of Justice actually seen the
18 full content of page 81?
19 MS. WEISMANN: I'm not under oath.
20 I am not being deposed here.
21 MR. KLAYMAN: I'm trying to ask you
22 to make a proffer so we can eliminate
267
1 unnecessary briefing and disposition by the
2 Court. The Court is very busy.
3 MR. MURPHY: We just made a proffer
4 to you, Klayman. You got better than a
5 proffer. You got sworn testimony from
6 Mr. Bacon that the subject matter of the note
7 is Bosnia.
8 MR. KLAYMAN: I asked you whether
9 or not counsel has ever seen this.
10 MR. MURPHY: I don't know whether
11 they've seen it or not and, frankly, I don't
12 care. Mr. Bacon has testified that the
13 subject matter of the blacked out note on
14 that page beneath the name of Jane Mayer and
15 her phone numbers is Bosnia.
16 MR. KLAYMAN: Well, I'm sorry if I
17 don't have to take that on face value. I'm
18 asking whether we can resolve the question
19 simply by submitting it in camera to the
20 judge.
21 MS. WEISMANN: Mr. Klayman, as far
22 as I'm concerned, the witness' sworn
268
1 testimony under penalty of perjury is a
2 sufficient basis on which to move off of this
3 subject.
4 MR. KLAYMAN: Are you saying that
5 people always tell the truth under oath,
6 Ms. Weismann? Is that your position?
7 MS. WEISMANN: Would you please ask
8 a question of this deponent and not me.
9 MR. MURPHY: Mr. Klayman, ask the
10 witness a question, please.
11 MR. KLAYMAN: I'm asking, simply
12 put, whether you will alleviate the
13 difficulty of having to move the Court and
14 having the Court have to entertain yet
15 another motion because of things that have
16 not been produced or questions that have been
17 instructed not to be responded to, whether
18 we'll eliminate this simply by having you
19 commit to submit document 81 to the Court in
20 camera.
21 MR. MURPHY: Now, Mr. Klayman, I
22 just asked Ms. Weismann if we could try to
269
1 avert this situation that you are creating by
2 having Mr. Bacon simply identify what the
3 subject matter was. She agreed to my
4 suggestion and he did so. Why can't we now
5 move on?
6 MR. KLAYMAN: I am not here to take
7 what you or your client say on face value.
8 MR. MURPHY: Well, that's too bad.
9 MR. KLAYMAN: That's not too bad
10 because that's what the process is about, and
11 I don't want to get personal here and I don't
12 want to get professional here. I just want
13 to get to the issues. I want to get to the
14 issues.
15 MR. MURPHY: So do I.
16 MR. KLAYMAN: I'm just asking
17 whether you or Ms. Weismann would agree to
18 submit this to the Court in camera. Is the
19 answer no?
20 MR. MURPHY: It's not my document,
21 Mr. Klayman.
22 MR. KLAYMAN: Is the answer no?
270
1 MR. MURPHY: It's not my document.
2 MR. KLAYMAN: Well, Ms. Weismann,
3 will you give it to the Court in camera?
4 MS. WEISMANN: Not currently, no.
5 Let me be crystal clear. I believe, based on
6 the sworn testimony of Mr. Bacon under oath
7 today, that the subject matter of the
8 blacked-out portions relates to Bosnia, and I
9 believe based on our Touye letter, which
10 could not be clearer, that Bosnia in no way
11 has any possible relevance to this matter,
12 that we appropriately labeled it
13 nonresponsive.
14 I will further state for the
15 record, sir, that in the face of that sworn
16 testimony, should you move for sanctions or
17 otherwise to compel, you should consider
18 whether your conduct is consistent with the
19 Federal Rules of Civil Procedure. That is
20 the last I'm going to say on the subject, and
21 I would suggest that you ask your questions
22 of the deponent and not me.
271
1 MR. KLAYMAN: I appreciate your
2 being crystal clear because I find it very
3 difficult to believe that for one page you
4 would not try to accommodate plaintiff and
5 the Court by eliminating an issue.
6 If the witness will please remove
7 himself from the room so we can discuss this
8 with counsel for a few minutes, I would like
9 to see if we can resolve it.
10 MS. WEISMANN: Mr. Klayman, I'm not
11 going to discuss it any further. You have
12 all the testimony you need on this subject,
13 and I'm going to direct you to please ask
14 your questions of the deponent and not
15 counsel.
16 MR. KLAYMAN: Certify it.
17 Mr. Bacon, did you keep any other
18 contemporaneous notes with regard to anything
19 else that occurred concerning the release of
20 Linda Tripp's information?
21 THE WITNESS: I did not.
22 BY MR. KLAYMAN:
272
1 Q So the only contemporaneous notes
2 that exist are those of Mr. Bernath, correct,
3 to the best of your knowledge?
4 A To the best of my knowledge, that's
5 correct.
6 Q In fact, as you've testified to
7 today, sometimes you don't remember things,
8 correct?
9 MS. WEISMANN: I object. I think
10 that mischaracterizes his testimony, but of
11 course you can go ahead and speak.
12 BY MR. KLAYMAN:
13 Q You can respond.
14 A I think what I said was that I have
15 the normal memory of a 53-year-old man.
16 Q Which isn't very good, in your
17 opinion.
18 MR. MURPHY: Speak for yourself,
19 Mr. Klayman.
20 MR. KLAYMAN: I'm not 53. Rapidly
21 approaching.
22 THE WITNESS: I don't care to
273
1 characterize it.
2 BY MR. KLAYMAN:
3 Q When you made that statement, did
4 you mean that at 53 sometimes you lose some
5 of your memory that you had before in an
6 earlier life?
7 A I think I have a perfectly normal
8 memory.
9 Q So your memory is just as good as
10 it was when you were 25?
11 A I said for my age.
12 Q Well, I'm trying to get your
13 understanding. Has your memory decreased
14 since you were 25?
15 A I'm not sure that I can quantify
16 it.
17 Q Is it less today than it was when
18 you were younger?
19 A This is a medical question I'm not
20 qualified to answer.
21 Q You're answering the question,
22 Mr. Bacon. You're certainly answering the
274
1 question in one manner, shape or form.
2 When did you realize that the
3 information provided by Ms. Mayer about
4 Ms. Tripp's arrest record might have serious
5 consequences for Ms. Tripp?
6 MS. WEISMANN: The question lacks a
7 foundation, but I will allow him to answer.
8 THE WITNESS: I don't think I ever
9 realized that it would have serious
10 consequences.
11 BY MR. KLAYMAN:
12 Q After your conversations with Cliff
13 Bernath when you learned that, in fact, he
14 had released the information to Ms. Mayer,
15 did there come a point in time when you saw
16 Ms. Mayer's article?
17 A Yes.
18 Q How did the article come your
19 attention?
20 A Actually, Mr. Bernath gave me a
21 copy of the article on Friday, the 13th.
22 Q So it was Thursday evening,
275
1 the 12th, that you got the first call from
2 Mayer?
3 A That is correct.
4 Q When did he give you a copy of the
5 article on Friday, the 13th?
6 A Very late in the day.
7 Q Was that during one of the meetings
8 that we previously discussed or was this
9 another meeting?
10 A I can't even recall whether he
11 handed it to me personally or not, but it was
12 in the packet of material that I get at the
13 end of every day to take home to read.
14 Q Did you read the article?
15 A I read the article on Saturday,
16 the 14th.
17 Q What, if anything, what reaction
18 did you have to that article?
19 A It was a long and detailed article.
20 Q Did you do anything with it?
21 A I did not. I read it on an
22 airplane.
276
1 Q Have you ever discussed that
2 article with anyone other than your lawyers?
3 A I'm not sure I've discussed it with
4 my lawyers.
5 Q Have you discussed it with anyone?
6 A I discussed it with my wife who was
7 sitting next to me when I read it.
8 Q What did you say to your wife?
9 MR. MURPHY: You don't have to
10 answer that.
11 MR. KLAYMAN: Wait a second. I'm
12 not asking for his wife's testimony. I'm
13 asking for him.
14 MR. MURPHY: He doesn't have to
15 answer about communications with his wife.
16 MR. KLAYMAN: On what basis?
17 MR. MURPHY: Spousal privilege.
18 MR. KLAYMAN: Are you invoking
19 that?
20 MR. MURPHY: I don't know. Maybe.
21 MR. KLAYMAN: Then answer the
22 question.
277
1 THE WITNESS: I don't think it's
2 appropriate.
3 MR. KLAYMAN: It's hardly a
4 personal question about an article. I'm
5 asking about Tripp's article.
6 MR. MURPHY: You're asking about a
7 conversation that the gentleman had with his
8 spouse, which is within the scope of the
9 spousal privilege. Now, he may want to waive
10 it or he may not. I'll talk to him about it.
11 You want to take a break?
12 MR. KLAYMAN: Spousal privilege
13 applies to what she would say, not what he
14 would say to her.
15 MR. MURPHY: No, no, no. It goes
16 both ways, Mr. Klayman, just like every other
17 privilege.
18 MR. KLAYMAN: You want to consult
19 with him?
20 MR. MURPHY: Yes, sure.
21 (Recess)
22 BY MR. KLAYMAN:
278
1 Q Mr. Bacon, have you ever discussed
2 the release of Linda Tripp's information with
3 Mike McCurry?
4 A No, I have not.
5 Q Have you ever discussed it with
6 anyone at the White House?
7 A No, I have not.
8 Q Have you ever discussed it with
9 anyone outside of the Pentagon, outside of
10 your wife and outside of the White House with
11 anyone?
12 A I don't believe I have.
13 Q You're not sure?
14 A I'm pretty sure that I have not,
15 but can I say a hundred percent? I'm pretty
16 sure that I have not.
17 Q Is it fair to say that you don't
18 know how Jane Mayer got the information about
19 Linda Tripp's arrest record?
20 A I have no idea how Jane Mayer got
21 the information.
22 Q Have you ever spoken with David
279
1 Kendall?
2 A I have not.
3 Q Do you know David Kendall?
4 A I have read who he is, yes.
5 Q Have you ever met him or talked to
6 him?
7 A I have not.
8 Q Have you ever spoken with Bob
9 Bennett, another of the president's lawyers?
10 A I have.
11 Q When?
12 A Our daughters were in school
13 together, so I have known Bob Bennett for a
14 number of years. But I would say I have not
15 spoken to him for probably at least a year or
16 two.
17 Q Have you talked with anyone from
18 his law firm, Scadden, Arps?
19 A I have not.
20 Q Have you ever spoken or met with an
21 individual by the name of Terry Lenzner?
22 A Terry Lenzner's wife goes to my
280
1 church, and I have known Terry Lenzner for
2 some time, but I have never spoken to him
3 about this issue. In fact, I don't think I
4 have spoken to Terry Lenzner for the last 6
5 months to a year.
6 Q Do you know Larry Potts?
7 A I do not.
8 Q Have you ever heard of Larry Potts?
9 A I don't believe I have.
10 Q Have you ever heard of someone who
11 gave the shoot-to-kill order at Ruby Ridge?
12 A No.
13 Q You're not familiar with Ruby
14 Ridge?
15 A Well, I'm vaguely familiar with it,
16 but I haven't followed it very closely.
17 MS. SHAPIRO: I'll assert an
18 objection to the relevancy of Ruby Ridge.
19 MR. KLAYMAN: I'm just trying to
20 identify whether he knows Larry Potts.
21 That's what Larry Potts is known for.
22 MS. SHAPIRO: There's been no
281
1 testimony about that.
2 THE WITNESS: I said no, I do not
3 know Larry Potts.
4 BY MR. KLAYMAN:
5 Q Have you ever or had any contact
6 with anyone by the name of Jack Palladino?
7 A No.
8 Q Anthony Pellicano?
9 A No.
10 Q Have you ever met or talked with
11 anyone by the name of Glen Weiner?
12 A I don't believe so. That name does
13 not -- is not familiar to me.
14 Q Tom Ginenda?
15 A No.
16 Q Brenda Costello?
17 A No.
18 Q Ann Walker?
19 A Who?
20 Q Ann Walker.
21 A No.
22 Q Have you ever talked to Mr. Lenzner
282
1 about the Monica Lewinsky controversy?
2 A No.
3 Q Have you ever talk to Bob Bennett
4 about the Monica Lewinsky controversy?
5 A No.
6 Q Have you ever met or talked with
7 Mrs. Clinton?
8 A No. Uh, I have met Mrs. Clinton in
9 the receiving line.
10 Q On what occasion?
11 A Christmas party at the White House.
12 Q How long ago was that?
13 A I believe it was either 1994
14 or 1995.
15 Q Have you ever discussed the Monica
16 Lewinsky controversy with the President of
17 the United States?
18 A I have not.
19 Q When was the last time you talked
20 to the President of the United States?
21 A I believe I've only talked to him
22 once and that was -- I've only had one
283
1 substantive conversation with him and that
2 was in December of 1995 when he came --
3 MR. MURPHY: Let me just advise you
4 not to talk about what you talked to the
5 president about until you get a question.
6 MR. KLAYMAN: On what basis?
7 THE WITNESS: Well, wait a minute.
8 Just let me answer the question.
9 December 1995 when he came to the Pentagon.
10 MR. KLAYMAN: Are you invoking
11 executive privilege?
12 MR. MURPHY: I'm not doing anything
13 other than advising my client not to go
14 further with that answer until he gets a
15 question.
16 MR. KLAYMAN: What did you talk to
17 the president about?
18 MS. SHAPIRO: I'll object at this
19 point. You can ask him if he talked about
20 Linda Tripp, but if the conversation involved
21 any official business, then he's instructed
22 not to answer the question as to the
284
1 substance of the conversation between
2 yourself and the president.
3 MR. KLAYMAN: Who are you
4 representing here, Ms. Shapiro?
5 MS. SHAPIRO: I represent the
6 Executive Office of the President, as you
7 well know.
8 MR. KLAYMAN: Who is Ms. Weismann
9 representing?
10 MS. SHAPIRO: The Department of
11 Defense.
12 MR. KLAYMAN: But she also
13 represents the Executive Office of the
14 President?
15 MS. SHAPIRO: Not at this
16 deposition.
17 MR. KLAYMAN: So I get
18 triple-teamed here?
19 MS. SHAPIRO: Well, you have a lot
20 of parties involved here.
21 MS. WEISMANN: Non-parties, as
22 well.
285
1 MR. MURPHY: What's the question?
2 MR. KLAYMAN: This conversation
3 took place in 1995?
4 THE WITNESS: Yes.
5 MR. KLAYMAN: Just so I'm clear,
6 are you invoking executive privilege?
7 MS. SHAPIRO: Not unless you force
8 me to. I think you can ask questions that
9 can avoid the necessity to invoke the
10 privilege.
11 MR. KLAYMAN: What was discussed?
12 MS. SHAPIRO: Again, the same
13 cautionary instruction.
14 MR. MURPHY: I don't think that was
15 the question.
16 MR. KLAYMAN: I want to see what
17 the basis of this interruption is.
18 MS. WEISMANN: Well, I will voice
19 an objection, as well, to the extent that the
20 subject matter was not and it could not have
21 been since he's talking about a 1995 event.
22 MR. KLAYMAN: I'm just talking
286
1 about general subject matter.
2 MS. WEISMANN: Let me finish,
3 please, with my objection.
4 MR. KLAYMAN: I thought you were.
5 MS. WEISMANN: No. It does not
6 concern the alleged leak of information from
7 Linda Tripp's Security Clearance Form and,
8 therefore, it is outside the scope of that to
9 which he's authorized to testify to. I am
10 going to instruct this witness not to answer
11 the question.
12 MR. KLAYMAN: How do you know it
13 doesn't deal with something which is of a
14 similar pattern or course of conduct,
15 Ms. Weismann?
16 MS. WEISMANN: If you will refer,
17 please, to the letter that you were sent
18 dated May 14, 1998 from the Department of
19 Defense under the signature of Harold Faloff.
20 It outlines the subject matter of the
21 authorization that Mr. Bacon has been given
22 for his testimony today, and that is the
287
1 extent to which he's authorized to testify,
2 to the extent he's asked questions that deal
3 with him in his official capacity. It is on
4 that basis that I instruct him not to
5 testify.
6 MR. KLAYMAN: Are you involving
7 executive privilege?
8 MS. SHAPIRO: No. It's not
9 necessary.
10 MR. KLAYMAN: Certify it. When we
11 took the break you were going to consult with
12 your client, Mr. Murphy, as to whether he
13 would tell us what he discussed with his wife
14 concerning the article of Ms. Mayer.
15 MR. MURPHY: Right. He's not going
16 to.
17 MR. KLAYMAN: Certify that. Did
18 you discuss that article with anybody else
19 other than your wife?
20 THE WITNESS: I don't believe so.
21 MR. KLAYMAN: So from the point
22 that Mr. Bernath told you that he had
288
1 released the information to Ms. Mayer and you
2 then got the article later in the day on
3 Friday, the 13th, you haven't discussed this
4 issue with anybody other than counsel and
5 your wife?
6 THE WITNESS: I think I've named
7 everybody with whom I've discussed it.
8 MR. KLAYMAN: Answer this question.
9 MR. MURPHY: Answer which question?
10 BY MR. KLAYMAN:
11 Q From the point that Mr. Bernath
12 told you he had released the Tripp
13 information to Jane Mayer, after which you
14 then received a copy of Ms. Mayer's article,
15 is it correct that you never discussed the
16 release of the Tripp information with anyone
17 other than your counsel?
18 A I discussed it with Cliff Bernath.
19 Q When did you discuss it with Cliff
20 Bernath?
21 A I discussed it during the week of
22 March 16.
289
1 Q What was discussed during the week
2 of March 16?
3 A I was out of town during that week
4 and Cliff called me on -- I think I may have
5 talked to him on either Tuesday or
6 Wednesday -- to say that he had asked that
7 his release -- the release, I should say, of
8 the information about Linda Tripp be
9 investigated by the Defense Department.
10 Q He called you to tell you that?
11 A He did.
12 Q What else was discussed?
13 A He also told me that a question had
14 arisen about this in a question and answer
15 period following an address the Secretary had
16 given at the National Press Club on Tuesday,
17 the 17th.
18 Q Did he say anything further?
19 A I believe that on that conversation
20 was basically all that he told me.
21 Q What question had arisen?
22 A At the press conference someone had
290
1 asked the Secretary about the appropriateness
2 of the release and he had said it was
3 inappropriate.
4 Q Did he say anything further during
5 that conversation? Did he say anything else?
6 A Not that I recall.
7 Q Did you have any other
8 conversations about the release of Linda
9 Tripp's matters?
10 A I had a conversation the next day
11 with Bob Tyrer, Secretary Cohen's Chief of
12 Staff.
13 Q When was that? March 17th?
14 A It was March 18, I believe,
15 Wednesday.
16 Q Were you summoned to Mr. Tyrer's
17 office?
18 A Well, I was in Montana, so the
19 answer is no.
20 Q What happened at that time?
21 A He called me and said that he was
22 upset by the fact that this information had
291
1 been released and the Defense Department
2 officials were apparently responsible for it.
3 Q What else did he say?
4 A That's basically what he said.
5 Q What did he tell you?
6 A That's what he told me.
7 Q He blamed you?
8 A He did not blame me.
9 Q Did he ask you who was responsible?
10 A We discussed the circumstances
11 under which the information had been
12 released.
13 Q Specifically what did he ask you?
14 A He didn't really ask me what had
15 happened. He asked me about why Cliff had
16 done this. I said that Cliff and I had
17 talked about this. We had discussed this on
18 Friday and he was particularly concerned. He
19 felt that the Secretary should have been
20 informed that this had happened prior to his
21 giving the speech to the Press Club.
22 Q Did you tell Mr. Tyrer that you had
292
1 instructed Mr. Bernath to get the information
2 for Ms. Mayer?
3 A I can't recall with what
4 specificity I discussed this with Bob Tyrer,
5 but I did tell him -- my recollection is that
6 I told him sort of how the circumstances had
7 come about on Friday.
8 Q You told him that you accepted
9 responsibility?
10 A Well, I certainly made it clear I
11 believe at that time and I have since that
12 Cliff and I had discussed this and this had
13 been something we had done together.
14 Q You made it clear that Cliff was
15 not to be blamed in and of himself, that he
16 wasn't to be hung out to dry?
17 A Well, I don't think I said it
18 particularly in those terms, but my
19 recollection is that I did discuss the
20 circumstances of the release of the
21 information.
22 Q So what, in effect, you said was
293
1 don't blame Cliff alone. I'm responsible, as
2 well?
3 A Well, I don't think I put it
4 specifically in those ways. I don't think I
5 said don't blame anybody. I think I just
6 explained what had happened.
7 Q Specifically, what did you explain?
8 A Well, I explained what I have
9 explained to you.
10 Q Did you explain that, in fact, you
11 had been aware that the Privacy Act applied
12 before that information was released?
13 A I did not discuss the Privacy Act.
14 Q Did you explain that Cliff had come
15 back with the Form 398 and you were not
16 aware, one way or the other, as to whether it
17 had ever been released to Ms. Mayer?
18 A No. I don't think that we got into
19 that level of detail.
20 Q Did you explain that Ms. Mayer had
21 wanted the information on a priority basis?
22 A I don't think I got into that
294
1 degree of detail.
2 Q Did you explain that Ms. Mayer had
3 told you that she had information that Linda
4 Tripp had been arrested?
5 A I'm not positive that I got into
6 that degree of detail. I certainly told him
7 that we had responded to this call.
8 Q Mr. Tyrer was upset, was he not,
9 that Mr. Bernath's name had been released to
10 the media, correct?
11 A I think he was upset by that, but I
12 think mainly he was upset that the Secretary
13 was in a position of not knowing the full
14 circumstances behind the release of the
15 information.
16 Q How did he say the Secretary was in
17 a position of not knowing the circumstances
18 behind the release?
19 A Well, I don't recall specifically
20 how he said it.
21 Q What was the gist of it?
22 A Well, the gist was that he answered
295
1 a question at the National Press Club without
2 at the time knowing that the information had
3 been released by the Defense Department.
4 Q The question which he answered at
5 the Press Club was what?
6 A I don't have it here. It's in this
7 package.
8 Q See if you can find it.
9 A It's 060.
10 Q That is the question and answer of
11 Secretary Cohen at the Press Club that you
12 just referred to?
13 A Yes.
14 Q "Mr. Secretary. Forgive me but
15 here's a question from today's headline.
16 Question: How was it that Linda Tripp's
17 personnel records were made public?
18 Shouldn't this be made a matter of
19 investigation? She was, after all, employed
20 at the Pentagon. Government workers are
21 assured that their 201 Files will remain
22 private."
296
1 The Secretary responded, "I don't
2 know the answer to how it was made public
3 other than the New Yorker magazine apparently
4 has an investigative reporter who got the
5 information. The records are supposed to be
6 protected by the privacy rules.
7 "I can't give you an answer on how
8 that reporter got his or her hands, I don't
9 know who the reporter was, on the information
10 going back into her past. Frankly it's a
11 surprise to me. I was not aware of it. It's
12 now under administrative inquiry and we'll
13 have to see what the facts hold up to."
14 So Tyrer was saying I'm upset that
15 the Secretary was not informed by you of what
16 happened because you made the Secretary look
17 foolish at the Press Club?
18 A That is essentially what he said,
19 yes.
20 Q Now, did you have any other
21 conversations about the Tripp matter with
22 anyone?
297
1 A I think I probably had another
2 conversation with Cliff Bernath on Wednesday,
3 just sort of a follow-up of where things
4 stood towards the end of the day.
5 Q What day was Wednesday?
6 A Wednesday was the 18th of March.
7 Q Where did that conversation take
8 place?
9 A He was in his office, I presume,
10 and I was in Montana.
11 Q He called you or did you call him?
12 A I believe I called him because it
13 was a call from the ski lodge.
14 Q What did you say to him?
15 A I just asked him what was
16 happening. I actually don't have a very
17 clear recollection of the conversation.
18 Q What did he tell you?
19 A He told me I believe at that point
20 that the Inspector General was going to
21 investigate the circumstances behind the
22 release.
298
1 Q He told you he had requested that
2 investigation?
3 A Well, he had initially told me, I
4 believe on Tuesday or Wednesday, that he had
5 asked for a legal review. I believe it was
6 the Secretary who had requested the Inspector
7 General to look into it.
8 Q You never asked for review, did
9 you, by anyone?
10 A I did not.
11 Q You weren't concerned about it,
12 were you?
13 A I didn't have to ask for review
14 because within a relatively short number of
15 days there were reviews underway.
16 Q What else did Mr. Bernath tell you
17 in that conversation?
18 A That's about my recollection of the
19 conversation.
20 Q Was anyone else privy to that
21 conversation?
22 A I'm not sure. It may have been
299
1 that Colonel Bridges was in on part of that
2 conversation, some or all of the
3 conversation.
4 Q Was he listening on his phone at
5 the Pentagon at the time?
6 A I cannot answer that question.
7 Q Were there any other conversations
8 that you had about the release of Tripp's
9 information?
10 A No. That was basically the extent
11 of the conversations that I can recall during
12 that week.
13 Q How about any conversations after
14 that week?
15 A Well, since then I have told you
16 that I've discussed this twice with Secretary
17 Cohen.
18 Q When was the first time you
19 discussed it with Secretary Cohen?
20 MR. MURPHY: It's been asked and
21 answered.
22 MR. KLAYMAN: I'm just trying to
300
1 identify it.
2 THE WITNESS: I believe that was
3 something we touched on before lunch but it
4 was sometime in April.
5 MR. KLAYMAN: When was the second
6 time?
7 THE WITNESS: Both of these times
8 were within the several days following Cliff
9 Bernath's deposition here.
10 MR. KLAYMAN: During these
11 conversations with Secretary Cohen, did you
12 tell him what had occurred that lead to the
13 release of Linda Tripp's information?
14 MS. WEISMANN: I object to the
15 question as outside the scope of that to
16 which he's been authorized to testify and
17 direct him not to answer.
18 MR. KLAYMAN: Certify it. During
19 those conversations did you discuss whether
20 or not you had instructed Mr. Bernath to
21 release the Tripp information to Ms. Mayer?
22 MS. WEISMANN: I object to the