301
1 question that asks him to testify as to
2 matters to which he's not authorized, and I
3 instruct him not to answer.
4 MR. KLAYMAN: Certify it. During
5 the conversation with Secretary Cohen, did
6 you discuss with him whether or not you had
7 had knowledge that the release of that
8 information violated the Privacy Act?
9 MS. WEISMANN: I object to the
10 question that asks him to testify as to
11 matter to which he's not authorized, and
12 direct him not to answer.
13 MR. KLAYMAN: Certify it. During
14 those conversations, did you discuss with
15 Secretary Cohen whether or not the Secretary
16 was aware of the release of the information
17 about Ms. Tripp prior to its release?
18 MS. WEISMANN: To the extent that
19 the question asks him to testify as to
20 whether he learned at that time that the
21 Secretary had knowledge about the information
22 prior to its release, I will allow him to
302
1 testify. To the extent that it goes beyond
2 that, I'm going to instruct him not to
3 answer.
4 THE WITNESS: As I've already told
5 you, the Secretary did not know the
6 circumstances of the release of the
7 information.
8 BY MR. KLAYMAN:
9 Q Was that discussed during the
10 conversation, the two conversations with the
11 Secretary?
12 A I reviewed for the Secretary
13 basically what I've told you about the
14 circumstances of the release of the
15 information.
16 MR. KLAYMAN: You got a complete
17 waiver there, even assuming you had valid
18 objections. Are you now going to let him
19 testify?
20 MS. WEISMANN: It's not a question
21 of waivers. It's a question as to what he is
22 authorized to testify to. My objection
303
1 stands. He is not authorized to waive. My
2 objection stands.
3 MR. KLAYMAN: Now he has confirmed
4 that the conversations that he's had with the
5 Secretary are relevant.
6 MS. WEISMANN: I disagree with your
7 characterization but, nevertheless, my
8 instruction stands.
9 MR. KLAYMAN: It would appear to
10 me, Ms. Weismann, that you only want him to
11 release information which you consider to be
12 helpful politically to the Administration
13 which you represent, and that's the only
14 basis upon which you let him testify to the
15 last question and refuse to allow him to
16 testify to other relevant matters.
17 MS. WEISMANN: Well, you're wrong
18 in your characterization. I've made it clear
19 from the outset that the parameters that I am
20 dictating today are dictated by the letter of
21 May 14, 1998 directed to you from Harold
22 Faloff, Deputy General Counsel of the
304
1 Department of Defense.
2 BY MR. KLAYMAN:
3 Q Who does Doc Cooke report to at the
4 department?
5 A He reports to the Secretary. He
6 may report through the Deputy Secretary. I'm
7 not sure of the exact reporting relationship.
8 Q So you don't know whether or not
9 Doc Cooke, when he was contacted by you to
10 obtain the information on Ms. Tripp requested
11 by Ms. Mayer, then spoke with the Secretary
12 of Defense?
13 A I do not know.
14 Q You don't know for a fact that Doc
15 Cooke did not relay to the Secretary of
16 Defense the request of Ms. Mayer concerning
17 Linda Tripp's answers to questions concerning
18 whether she had been arrested?
19 A I do not know for a fact, but I
20 have absolutely no indication that he did.
21 Q From what basis do you come to the
22 conclusion that you have no indication that
305
1 he did?
2 A From the Secretary's reaction when
3 I informed the Secretary on March 13 that he
4 was likely to get a question on this when he
5 appeared on television on Sunday.
6 Q So you're basing your answer based
7 on a physical reaction?
8 A Well, I told you -- my answer
9 stands.
10 Q Please turn to Exhibit 5 again.
11 These are the contemporaneous notes kept by
12 Cliff Bernath on Friday the 13, 1998. Look
13 to the bottom of the page.
14 A What page are you on?
15 Q Page 1. You see where it says 8:30
16 a.m. to 8:40 a.m.?
17 A Yes.
18 Q "Doc Cooke. Re Tripp and Jane
19 Mayer (New Yorker) Question. Follow up to
20 Ken's conversation last."
21 A Yes.
22 Q That's correct, isn't it. It's
306
1 consistent with what you had communicated to
2 Cliff Bernath that he was following up on
3 your conversation, your last conversation
4 with Ms. Mayer?
5 A It's consistent with my
6 conversation with Cliff.
7 Q Then it says at the top of the next
8 column, "Doc will check with Security to see
9 how Tripp responded to security question on
10 prior convictions."
11 That's consistent with your
12 conversation with Mr. Bernath, is it not?
13 A I don't believe so, because I don't
14 think I ever mentioned convictions to Cliff.
15 Q If the word had been "arrest" as
16 opposed to "conviction," would that have been
17 accurate?
18 A Well, it isn't. It's not "arrest."
19 It's "conviction."
20 Q I'm not sure I understand. You
21 quibble with that phrase with what
22 Mr. Bernath wrote because he's talking about
307
1 convictions rather than arrest records.
2 A What I said is I don't believe I
3 ever mentioned convictions to Cliff because I
4 don't think that the reporter, Jane Mayer,
5 ever mentioned convictions to me.
6 Q Everything else in that phrase is
7 correct except the use of the word
8 "convictions"?
9 A Yes.
10 Q 8:55 To 9:05. "Jane Mayer. Told
11 her I was working on answer to her question
12 and Ken has made clear it's a priority."
13 That's accurate, is it not, based
14 on your communications with Mr. Bernath?
15 A Well, as I told you before, I don't
16 believe I ever used the word "priority."
17 What I did communicate to Mr. Bernath was
18 that Jane Mayer told me she was working on a
19 deadline.
20 Q You told Mr. Bernath what the
21 deadline was?
22 A I don't think I told it with any
308
1 great degree of specificity, no.
2 Q But you told him you wanted the
3 information the next morning?
4 MR. MURPHY: This is the next
5 morning.
6 THE WITNESS: This is the next
7 morning. This is Friday.
8 MR. KLAYMAN: Right. But when you
9 talked to Bernath the earlier evening, you
10 told him you wanted the information the next
11 morning?
12 MS. WEISMANN: Objection.
13 THE WITNESS: No. At no point did
14 I tell Mr. Bernath that I wanted the
15 information.
16 MR. KLAYMAN: So you're saying that
17 what Mr. Bernath wrote here is a lie?
18 MR. MURPHY: Objection.
19 THE WITNESS: Well, what are you
20 asking me?
21 BY MR. KLAYMAN:
22 Q You're saying that the entry, "Told
309
1 her I was working on answer to her question
2 and Ken has made clear it's a priority,"
3 Mr. Bernath has lied in that statement?
4 A No, I'm not accusing Mr. Bernath of
5 lying and I would recommend you not either.
6 Q Have you ever known Mr. Bernath to
7 lie?
8 A I have not.
9 Q Does he have a reputation for being
10 truthful and honest?
11 A He does.
12 Q Next phrase. "Wants to verify
13 whether the question on security form
14 pertains to 'arrested' or 'convicted.'" Is
15 that accurate?
16 A I cannot tell you whether it's
17 accurate or not.
18 Q Did Mr. Bernath tell you that that
19 was the purpose of Ms. Mayer's inquiry?
20 A He did not.
21 Q Next entry. 9:25 to 9:30 a.m.
22 "Doc Cooke. Security only has a few Tripp
310
1 records, all of which have been subpoenaed by
2 Office of Independent Counsel. No
3 indications of incidents."
4 Did Mr. Bernath relay that
5 information to you as recorded at 9:25
6 to 9:30 a.m.?
7 A I don't believe that he did. What
8 I told you is that he came to me with what I
9 recall to be a 171 file.
10 Q Are you aware that this information
11 was subpoenaed by Office of Independent
12 Counsel?
13 A Not specifically that this
14 information was subpoenaed, no.
15 Q What do you mean by not
16 specifically?
17 A Well, the Office of the Independent
18 Counsel issued a sweeping subpoena to my
19 office. I did not personally review what was
20 provided under that subpoena. So I was not
21 aware of specific documents other than some
22 that I provided that had been provided to the
311
1 Office of the Independent Counsel pursuant to
2 that subpoena.
3 Q Have you ever seen the unredacted
4 version of Mr. Bernath's notes that I'm
5 reading to you here?
6 A I don't believe that I did see
7 these, no. He did regularly send me these
8 notes but I didn't always read the notes.
9 There were some weeks I did and some weeks I
10 didn't.
11 Q He would send you the notes that he
12 kept on his little pilot?
13 A Yes.
14 Q That was his routine?
15 A Yes.
16 Q Why did he do that?
17 A I think he did it as a way to keep
18 me abreast of what he was up to.
19 Q The notes that I'm reading to you
20 now, he sent those to you on or about Friday,
21 the 13th?
22 A Well, no. He usually did it every
312
1 week or two.
2 Q But he did send you these notes
3 that I'm referring to?
4 A I can't tell you that for a fact
5 because, as I said, he did send me notes on a
6 regular basis but I didn't always read the
7 notes.
8 Q But you don't know that he didn't
9 send you these notes?
10 A I don't know that he did send me
11 those notes.
12 Q If you saw something that was
13 inaccurate in his notes, you would let him
14 know about it, correct? That's been your
15 routine?
16 A I can't remember actually every
17 seeing anything inaccurate in his notes.
18 Q You've never found inaccuracies in
19 his notes?
20 A I don't recall, no.
21 Q Mr. Bernath's a very precise
22 person, is he not?
313
1 A He is a precise person.
2 Q Have you had an experience with him
3 doing things that were sloppy or inaccurate?
4 A No, but I certainly noticed through
5 his notes and through my conversations that
6 sometimes he interpreted facts differently
7 than I did or reacted differently to
8 situations than I did.
9 Q What instance can you refer to that
10 that happened?
11 A Nothing, in particular, but there
12 were times when I had thought that I told him
13 something and he told me that I told him
14 something different. We had different
15 responses to conversations.
16 Q Did you ever correct him on that,
17 tell him that's wrong, you got it wrong?
18 A I probably never used those terms.
19 I probably said I think maybe there was a
20 misunderstanding.
21 Q But you can't remember one concrete
22 instance?
314
1 A I can't remember, no.
2 Q Now, what I just read to you now in
3 terms of Mr. Bernath's recordations, did you
4 go over these notes with your counsel at some
5 point?
6 A No.
7 Q Have you ever seen these notes
8 before?
9 A I don't believe I have, no.
10 Q Steve O'Toole, who is Steve
11 O'Toole?
12 A I do not know.
13 Q Have you ever heard of a Director
14 of Personnel Security?
15 A I have not.
16 Q Have you ever heard, turning to the
17 next page, of an Aaron Retica, fact checker
18 for the New Yorker magazine?
19 A I have not.
20 Q Have you ever heard of an Al
21 Papenfus?
22 A Yes, I have.
315
1 Q Who is Al Papenfus?
2 A He works with Doc Cooke.
3 Q Is he a political appointee?
4 A I don't believe he is.
5 Q He reports to the Secretary, as
6 well?
7 A He reports to Doc Cooke.
8 Q Did you ever talk to him about
9 Linda Tripp?
10 A I did not.
11 Q Do you know what role he played in
12 the release of Linda Tripp's information from
13 her personnel file?
14 A I do not.
15 Q Have you ever had contact with
16 Tucker Carlson?
17 A No.
18 Q Are you aware that Tucker Carlson
19 requested of Mr. Bernath that information on
20 your Form 398 be released to him?
21 A Yes.
22 Q When did you become aware of that?
316
1 A In one of my phone conversations
2 with Mr. Bernath on Wednesday, I believe,
3 Tuesday or Wednesday, the 17th or 18th.
4 Q I went through all of your
5 conversations with you before, did I not?
6 A Yes, you did.
7 Q You did not mention this to me, did
8 you?
9 A I did not.
10 Q Why?
11 A It did not come to my mind.
12 Q What did Mr. Bernath say to you?
13 A He said that Tucker Carlson was
14 calling and asking if he could get
15 information on how both I and Secretary Cohen
16 had responded to that question on our
17 security forms.
18 Q Did you ask Mr. Bernath why
19 Mr. Carlson wanted that information?
20 A I don't believe I asked him that.
21 I thought it was evident.
22 Q What was evident?
317
1 A That he wanted to use it in one of
2 his articles.
3 Q Did you know what article he was
4 writing, what the subject matter was?
5 A Well, I think that Cliff Bernath
6 explained to me briefly that he was writing
7 an article about the Tripp case.
8 Q Now, I previously asked you to tell
9 me everything that went on during these
10 conversations. Isn't it significant that
11 another reporter is writing an article about
12 the Tripp case?
13 A I don't think it registered as a
14 major incident for me at the time. I'm sorry
15 that it didn't today but I'm glad to discuss
16 it with you now.
17 Q Now, you are aware that Tucker
18 Carlson works for the Weekly Standard?
19 A Yes, I am.
20 Q That's a conservative publication,
21 correct?
22 A You characterize it that way.
318
1 Q Is that your understanding of what
2 it is?
3 A It is my understanding.
4 Q It is also your understanding that
5 the Weekly Standard has been very critical of
6 the Clinton Administration?
7 A That is my observation, yes.
8 Q Its alleged lack of ethics and
9 respect for the law?
10 A Well, I'm not a regular reader of
11 the Weekly Standard, so I can't say based on
12 personal information.
13 Q But you are aware of that being
14 said by the Weekly Standard?
15 A Well, I'm aware that that's the
16 reputation the Weekly Standard has.
17 Q You're aware that Tucker Carlson is
18 perceived in the Clinton Administration as a
19 rabid anti-Clintonite?
20 A I'm not aware of that, no.
21 Q Are you aware that he has been
22 critical of the Clinton Administration?
319
1 A I have not read any of Tucker
2 Carlson's pieces, so based on my own
3 information, I couldn't say that.
4 Q With that information, obviously if
5 Mr. Carlson is making an inquiry on behalf of
6 the Weekly Standard about Linda Tripp, do you
7 perceive that to perhaps be something which
8 needed your attention, correct?
9 A In this particular case I discussed
10 it with Cliff Bernath and I told Cliff that I
11 had absolutely no objection to the release of
12 the information about me, and that he would
13 have to check with Bob Tyrer about
14 information on Secretary Cohen.
15 Then in my conversation with Tyrer,
16 which I believe I talked about before
17 Wednesday morning, I told Tyrer this request
18 was pending and he would have to decide how
19 to respond to it, he and the Secretary would
20 have to decide.
21 Q Did you ever discuss with Bernath
22 or anybody else if they had made an effort to
320
1 get the authorization or permission of Linda
2 Tripp to release the information on Form 398?
3 A No, I did not.
4 Q When Bernath asked you for your
5 permission to release a similar question or
6 an identical question of whether you had ever
7 been arrested, you gave your consent?
8 A Yes.
9 Q At that time did you then think of
10 why that same request was not made to Linda
11 Tripp?
12 A I guess I did not think of it in
13 those terms, no.
14 Q Now, Linda Tripp works under you,
15 correct?
16 A Yes, she does.
17 Q She reports to you, correct?
18 A Indirectly.
19 Q Now, when you received this request
20 for information from Jane Mayer, did you not
21 think that you had an obligation to ask Linda
22 Tripp or to inform Linda Tripp whether or not
321
1 this information should be released to
2 Ms. Mayer?
3 A For better or for worse, that did
4 not cross my mind.
5 Q If you had been in Linda Tripp's
6 shoes, would you have wanted your superior to
7 ask that question of you?
8 MR. MURPHY: Objection.
9 BY MR. KLAYMAN:
10 Q You can respond.
11 A I guess I didn't think of it in
12 those terms.
13 Q I'm asking you today. At a
14 minimum, don't you believe that you owed her
15 a courtesy to inform her of the request of
16 Jane Mayer and to get her authorization
17 before releasing the information on Form 398?
18 MS. WEISMANN: Again, I want to
19 remind Mr. Klayman you do not represent
20 Ms. Tripp. Whether or not she has any kind
21 of a claim against the Department of Defense
22 with respect to dissemination is information
322
1 that's not relevant to your lawsuit, so
2 please try to keep your questions to relevant
3 inquiries.
4 MR. KLAYMAN: You can respond.
5 THE WITNESS: Could you repeat the
6 question.
7 MR. KLAYMAN: Would you read it
8 back, please.
9 (The reporter read the record as
10 requested.)
11 THE WITNESS: In retrospect, it
12 would have been better to have done that.
13 MR. KLAYMAN: So, therefore, you
14 did owe it to her as a matter of courtesy?
15 MS. WEISMANN: The question has
16 been asked and answered.
17 BY MR. KLAYMAN:
18 Q You can respond.
19 A In retrospect, it would have been
20 better to have done that.
21 Q As a matter of courtesy?
22 A In retrospect, it would have been
323
1 better to have done that.
2 Q Is your answer based on courtesy?
3 A My answer is based on responding to
4 your question.
5 Q My question uses the word
6 "courtesy," does it not?
7 A In retrospect, for a variety of
8 reasons, it would have been better to have
9 checked with Ms. Tripp or her attorney on
10 this issue.
11 Q In fact, based on your experience,
12 it's legally required to have checked with
13 Ms. Tripp before releasing the information on
14 Form 398.
15 MR. MURPHY: Objection.
16 MS. WEISMANN: I object to the
17 question. I'm not sure it's an accurate
18 characterization of the law. But if that's
19 his understanding of the law, he can respond.
20 THE WITNESS: I don't, as I've
21 testified, know enough about the Privacy Act
22 to know whether it's required or not.
324
1 BY MR. KLAYMAN:
2 Q Now, the reason that you decided
3 never to check with Ms. Tripp before
4 undertaking to obtain the information to
5 release to Ms. Mayer was because Ms. Tripp
6 was adverse to the Clinton Administration,
7 correct?
8 A No.
9 Q Have you ever released similar
10 information with regard to Monica Lewinsky?
11 MS. WEISMANN: I object to the
12 question. It's outside the scope to which
13 he's been authorized to testify, and I direct
14 him not to answer the question.
15 MR. KLAYMAN: Certify it. Have you
16 ever gotten a request for Privacy Act
17 information concerning Monica Lewinsky?
18 THE WITNESS: I've gotten a request
19 for personnel information. I guess I can't
20 say whether we've gotten requests for Privacy
21 Act information.
22 MR. KLAYMAN: Have you ever
325
1 released personnel information, you meaning
2 the Department of Defense, concerning Monica
3 Lewinsky?
4 MS. WEISMANN: I object to the
5 question because it calls for information
6 outside the scope of what he's been
7 authorized to testify to, and I'm going to
8 direct him not to answer this.
9 MR. KLAYMAN: Certify it. Have you
10 ever released information concerning Monica
11 Lewinsky from Form 398?
12 MS. WEISMANN: Again I object to
13 the question. It calls for information that
14 he's not authorized to testify to today and
15 direct him not to answer.
16 MR. KLAYMAN: Certify it. Have you
17 ever heard of a Don Park? Do you know
18 whether the information requested of
19 Secretary Cohen from his Form 398 was ever
20 released to Tucker Carlson?
21 MR. MURPHY: Objection. Which
22 question do you want him to answer? Have you
326
1 ever heard of Don Park or the other question?
2 BY MR. KLAYMAN:
3 Q Are you aware of whether or not the
4 information that was requested by Tucker
5 Carlson from Secretary Cohen's Form 398 was
6 released to Tucker Carlson?
7 A I'm not aware.
8 Q Have you ever made an inquiry?
9 A No.
10 Q You don't know, one way or the
11 other?
12 A No.
13 Q But you did discuss it with Tyrer,
14 right?
15 A Yes.
16 Q Who is Don Perkal?
17 A I believe he's a lawyer at the
18 Pentagon. I don't know whether he's in your
19 office or the Personnel office.
20 Is he in your office?
21 MR. MURPHY: Looking at Mr. Lehman.
22 BY MR. KLAYMAN:
327
1 Q Have you ever talked to Don Perkal
2 about the Tripp incident?
3 A I don't believe that I have, no.
4 Q Have you ever heard of a
5 Mr. Passarella?
6 A Yes.
7 Q P-a-s-s-a-r-e-l-l-a. Who is that?
8 A Anthony Passarella.
9 Q What does he do?
10 A He's in charge of the Freedom of
11 Information Directorate.
12 Q Have you ever discussed this Tripp
13 incident with Mr. Passarella?
14 A I have not.
15 Q Have you instructed him to do
16 anything with regard to Ms. Tripp?
17 A I have not.
18 Q You know of anyone else who has?
19 A I do not.
20 Q Have you ever heard of a Stew Aly?
21 S-t-e-w A-l-y.
22 A Yes.
328
1 Q Who is Stew Aly?
2 A He's an attorney in the General
3 Counsel's Office.
4 Q Have you ever discussed this Tripp
5 incident with Mr. Aly?
6 A I have not.
7 Q Have you ever heard of a Charlie
8 Talbott? T-a-l-b-o-t-t.
9 A I have not.
10 Q Have you ever heard of a Bryan
11 Whitman? B-r-y-a-n.
12 A Yes.
13 Q Who is Bryan Whitman?
14 A Bryan works in the Directorate of
15 Defense Information.
16 Q Have you ever discussed the Tripp
17 incident with Mr. Whitman?
18 A Not that I'm aware of.
19 Q No or yes?
20 A I don't believe I have.
21 Q Ed Veiga, V-e-i-g-a. Have you ever
22 heard of Ed Veiga?
329
1 A Ed Veiga is one of my military
2 assistants.
3 Q Have you ever discussed the Tripp
4 incident with Mr. Veiga?
5 A I don't believe I have.
6 Q Did you ever discuss Ms. Mayer's
7 request with Mr. Veiga?
8 A I don't believe that I did.
9 Q Doug Dworkin, D-w-o-r-k-i-n.
10 A He's the Deputy General Counsel.
11 Q Have you ever discussed the Tripp
12 incident with him?
13 A No.
14 Q Paul Koffsky, K-o-f-f-s-k-y.
15 A I have not.
16 Q Have not what?
17 A Discussed it with him.
18 Q Do you know who he is?
19 A He's a lawyer in the General
20 Counsel's Office.
21 Q Have you ever discussed the Tripp
22 incident with Helen Sullivan?
330
1 A No.
2 Q Was she aware that Ms. Mayer was
3 making this request for information on
4 Ms. Tripp before that information was
5 released to Ms. Mayer?
6 A I don't know.
7 Q Dick Bridges. Did you ever discuss
8 the Tripp incident with Dick Bridges?
9 A Yes, I did.
10 Q When was that?
11 A It was on Tuesday or Wednesday,
12 March 17 or 18.
13 Q What was discussed?
14 A Well, as I told you, he was on one
15 of the phone calls with Dick Bernath.
16 Q Did you discuss anything with him
17 after that phone call?
18 MS. WEISMANN: Can you confine your
19 question to a subject matter?
20 MR. KLAYMAN: Involving the Tripp
21 incident.
22 THE WITNESS: I think I had one
331
1 further discussion with him which was in late
2 March or early April that involved the ruling
3 by whoever made the ruling or the finding
4 after the review of Ms. Tripp's security
5 form. He is the person who helps prepare the
6 briefing books that I use to prepare for
7 press briefings, and he was the one who
8 informed me of what the decision was.
9 MR. KLAYMAN: What ruling are you
10 talking about?
11 MS. WEISMANN: I'm going to caution
12 the witness. He's not authorized today to
13 discuss the contents of that ruling both
14 because it's outside the scope of his
15 authorization and it's privileged and
16 protected by the Privacy Act.
17 MR. KLAYMAN: Do you know what the
18 ruling is, Ms. Weismann?
19 MS. WEISMANN: Please direct your
20 questions to the deponent and not me.
21 MR. KLAYMAN: I want to know
22 whether you're making an informed
332
1 instruction. Are you willing to provide that
2 information to me, yes or no?
3 MS. WEISMANN: I have given you the
4 basis of my objection and direction. He's
5 not authorized to release the substance of
6 that ruling.
7 MR. KLAYMAN: So you don't know
8 what the ruling is?
9 (Discussion off the record)
10 MR. KLAYMAN: So you don't know
11 what the ruling is, one way or the other?
12 MS. WEISMANN: That is not what I'm
13 saying. He's not authorized today to discuss
14 any internal investigation of Ms. Tripp.
15 That's outside the scope of what he's been
16 authorized to testify to.
17 MR. KLAYMAN: Certify it. Have you
18 ever heard of a Mr. Wilson?
19 THE WITNESS: I've heard of many
20 Mr. Wilsons.
21 BY MR. KLAYMAN:
22 Q Is there a Mr. Wilson that works
333
1 for you?
2 A Yes.
3 Q What's his first name?
4 A Doug.
5 Q Have you ever dealt with or
6 discussed the Tripp incident with Doug
7 Wilson?
8 A Not that particular incident, no.
9 Q What other incident?
10 A Well, Mr. Wilson is now Ms. Tripp's
11 supervisor, so I have discussed various work
12 arrangements under the flex-a-place plan with
13 Mr. Wilson.
14 MR. KLAYMAN: Am I able,
15 Ms. Weismann, to get into the issue of what
16 Ms. Tripp's employment status is today?
17 MS. WEISMANN: No. That is outside
18 the scope of what he's authorized to testify
19 to. You can ask the questions but I will
20 instruct him not to answer.
21 MR. KLAYMAN: Somehow I surmised
22 that. Certify it.
334
1 MS. WEISMANN: Well, let me note
2 for the record there's no current pending
3 question.
4 MR. KLAYMAN: I'm just trying to
5 move this along and I'm trying to avoid the
6 continued acrimony here.
7 Are you aware that Dick Bridgeman
8 was asked questions about the Linda Tripp
9 incident by Newsweek magazine?
10 MR. MURPHY: Bridges?
11 MR. KLAYMAN: Bridges.
12 THE WITNESS: I'm not certain that
13 I was aware of that, no.
14 BY MR. KLAYMAN:
15 Q You may be aware of that?
16 A I don't believe I was aware of
17 that. What time are you talking about?
18 Q On or about March 20, 1998.
19 A I don't believe that I knew that.
20 Q Did you become aware at any point
21 in time that Mr. Bernath had to testify in
22 this lawsuit before he actually testified?
335
1 A Yes.
2 Q When did you become aware of that?
3 A I don't recall exactly. Sometime
4 before he testified.
5 Q Were you aware that the Court had
6 ordered him to testify on a specific date?
7 MR. MURPHY: Objection. Is this at
8 all pertinent to this deposition?
9 MR. KLAYMAN: Yes, it is. You can
10 respond.
11 MR. MURPHY: You want to tell me
12 why?
13 MR. KLAYMAN: I really don't.
14 THE WITNESS: I don't believe that
15 I was aware that the Court had asked him to
16 testify on a specific date.
17 BY MR. KLAYMAN:
18 Q Are you aware that Mr. Bernath,
19 during the period that the Court initially
20 asked him to testify, was in Kansas?
21 A Yes.
22 Q You sent him to Kansas, did you
336
1 not?
2 A I did not.
3 Q Why was he in Kansas?
4 A He went to Kansas to participate in
5 a seminar. I believe it was a long standing
6 obligation he had. It was something that had
7 been on his schedule for some time.
8 Q Did you call him while he was in
9 Kansas?
10 A I called him on -- I don't remember
11 the exact date but I believe it was the
12 Sunday. He was in Kansas or leaving for
13 Kansas.
14 Q Why did you call him?
15 A I called him to report to him some
16 remarks that Secretary Cohen had made on a
17 Sunday television program.
18 Q What remarks were they?
19 A He was asked a question, which I
20 can't recall precisely now, about Linda Tripp
21 and to her employment status at the Pentagon.
22 Then he was also asked whether he believed it
337
1 was inappropriate for the release of
2 information about her arrest record. The
3 questioner specifically asked if Cliff
4 Bernath had released that information.
5 Q Why did you feel compelled to call
6 Cliff Bernath to tell him that?
7 A I thought that Cliff had a right to
8 know what was said about him.
9 Q Cliff had a right to know but Linda
10 Tripp didn't?
11 MR. MURPHY: Objection. You don't
12 have to answer that question.
13 MR. KLAYMAN: Is that your view?
14 MR. MURPHY: Pure argument.
15 MR. KLAYMAN: Is that your view,
16 Mr. Bacon?
17 MR. MURPHY: That's a purely
18 argumentative question.
19 THE WITNESS: I accept my counsel's
20 advice.
21 MR. KLAYMAN: In other words, Linda
22 Tripp didn't even have a right to know about
338
1 the prior release of her information on
2 Form 398, but yet Cliff Bernath had the right
3 to know about something the Secretary of
4 Defense said about his and your conduct; is
5 that your position?
6 MR. MURPHY: Objection. You don't
7 have to answer that question.
8 MR. KLAYMAN: Is that your
9 position?
10 MR. MURPHY: Move along,
11 Mr. Klayman.
12 MR. KLAYMAN: Are you instructing
13 him not to answer?
14 MR. MURPHY: You did not hear me?
15 I told him that he doesn't have to answer
16 that question.
17 MR. KLAYMAN: On what basis?
18 MR. MURPHY: Argumentative. Move
19 along.
20 MR. KLAYMAN: Are you saying that
21 that's a proper basis to instruct him not to
22 answer?
339
1 MR. MURPHY: Absolutely. You have
2 all the facts and you have all the answers to
3 all the questions. Now you're just debating
4 the point with the witness. If you want some
5 more information, ask him more questions.
6 MR. KLAYMAN: I will be moving for
7 sanctions on that. Certify it.
8 So what else did you say to
9 Mr. Bernath during that telephone
10 conversation?
11 THE WITNESS: I never talked to
12 him.
13 BY MR. KLAYMAN:
14 Q You never got through?
15 A No.
16 Q Did you ever get through when he
17 was in Kansas?
18 A No.
19 Q Do you know whether anyone at the
20 Department of Defense ever asked Mr. Bernath
21 to come back to testify in this lawsuit
22 pursuant to a court order?
340
1 A I do not know.
2 Q Do you know if anyone ever made the
3 effort to ask him to come back to comply with
4 the Court's order for his testimony?
5 A I do not know.
6 Q Were you ever advised that the
7 Court had ordered him to testify during the
8 period that he was in Kansas?
9 MS. WEISMANN: Asked and answered.
10 MR. KLAYMAN: You can respond.
11 THE WITNESS: I don't believe I was
12 so advised, no. My understanding always was
13 that the date that he was supposed to testify
14 was a date that he was always ready to meet
15 and, in fact, did meet.
16 BY MR. KLAYMAN:
17 Q But you had never been told that
18 the Court had ordered him to testify on a
19 particular date, correct?
20 A That is correct.
21 Q You were the one who, if anyone was
22 to order him back to testify, would have to
341
1 do it, correct? You were his superior.
2 MR. MURPHY: Objection.
3 THE WITNESS: Sir, I've already
4 testified that I did not know that he had
5 been ordered to testify on a specific date.
6 MR. KLAYMAN: But you are the one
7 who had the authority, if you chose to
8 exercise it, to tell him to get back to
9 testify, correct?
10 MS. WEISMANN: I object. I don't
11 think that there's a proper foundation for
12 it.
13 MR. KLAYMAN: Is that correct? You
14 can respond.
15 MS. WEISMANN: I'm not done,
16 Mr. Klayman. I object. There's not a proper
17 foundation for it. I don't think it's been
18 established in the record what his employment
19 relationship was to Mr. Bernath at the time
20 in question.
21 THE WITNESS: There was some
22 screwball wire service article suggesting
342
1 that Cliff Bernath had left town in order to
2 avoid testifying. This was brought to my
3 attention I believe on Monday or Tuesday of
4 the week. I can't remember. I was told that
5 the article was wrong.
6 BY MR. KLAYMAN:
7 Q Who told you that?
8 A I can't recall whether it was
9 Colonel Bridges or whether it was somebody
10 named Robert Taylor who works with Cliff
11 Bernath.
12 Q My question was as Mr. Bernath's
13 superior, you could have ordered him to come
14 back from Kansas, could you not?
15 A My answer is --
16 MS. WEISMANN: I think you need to
17 lay a proper foundation for your question.
18 MR. KLAYMAN: I'll ask the question
19 the way I want to.
20 MS. WEISMANN: Well, then I'm going
21 to object.
22 MR. KLAYMAN: Well, just object and
343
1 let's move on.
2 MS. WEISMANN: Let me finish my
3 objection, please.
4 MR. KLAYMAN: I thought you were
5 finished.
6 MS. WEISMANN: No.
7 MR. KLAYMAN: You're so incredibly
8 nasty. Why is that, Ms. Weismann?
9 MS. SHAPIRO: I object to that
10 characterization.
11 MR. KLAYMAN: No, really. There's
12 a venom and a vindictiveness here which is
13 unnecessary.
14 MR. MURPHY: Mr. Klayman, I have
15 noted that same venom and vindictiveness in
16 you, sir.
17 MR. KLAYMAN: Well, I understand
18 you've noted that. I've noted some things
19 from your standpoint.
20 I want to know why there has to be
21 such a personal aspect to this. Can't you
22 just make your objection and move on without
344
1 constantly chastising me, Ms. Weismann.
2 MR. MURPHY: Mr. Klayman, I would
3 suggest that you examine your own conscience
4 about the very same topic.
5 MR. KLAYMAN: Ms. Weismann, would
6 you answer the question?
7 MS. WEISMANN: I'm not going to
8 answer questions. That's not my role here.
9 To the extent your comments go
10 perhaps to the fact that I may have raised my
11 voice, it's so that I won't be cut off,
12 because somehow it seems that when I'm in
13 mid-sentence it's not apparent to you. But,
14 anyway, to go on, I don't think it is yet in
15 the record what his employment relationship
16 was with Mr. Bernath at the time in question.
17 MR. KLAYMAN: I'm allowed to ask
18 questions the way I want. A lawyer who is
19 practicing under the Rules of Civil Procedure
20 need simply object as to form, and that's
21 what I'm asking you to do rather than
22 interrupting, rather than chastising me,
345
1 rather than berating me, rather then gritting
2 your teeth and making faces at me. I'm
3 asking if we can conduct this in a
4 professional way.
5 MR. MURPHY: Proceed, counsel.
6 BY MR. KLAYMAN:
7 Q Did you have the authority to ask
8 Mr. Bernath to come back from Kansas at that
9 time?
10 A I do not know.
11 Q But you are his superior, correct?
12 A Yes.
13 Q Mr. Bernath was in Kansas on
14 Department of Defense business, correct?
15 A Yes, he was.
16 Q No one contacted you about the
17 Court's order, correct?
18 A That is correct.
19 MR. KLAYMAN: I'll show you what
20 I'll ask the Court reporter to mark as
21 Exhibit 6.
22 (Bacon Deposition Exhibit No. 6
346
1 was marked for identification.)
2 BY MR. KLAYMAN:
3 Q This is a transcript of an
4 appearance by Secretary Cohen on Fox News
5 Sunday, April 26, 1998. This is the date
6 that Secretary Cohen made the statement to
7 which you attempted to contact Mr. Bernath to
8 inform him, correct?
9 A That is correct.
10 Q Turn to page 9. Look at the bottom
11 right-hand corner of page 9 wherein Tony Snow
12 says, "Last week on national television Linda
13 Tripp's attorney said she was afraid she was
14 going to lose her job. Is she?
15 "COHEN: She is not going to lose
16 her job. As far as I'm concerned, she is
17 performing a job by working at home for the
18 time being. But there's been no indication
19 on our part that -- that she should have this
20 fear.
21 "She's working at home in order to
22 work out her particular arrangement, which is
347
1 a sensitive one now -- namely, she's working
2 with the independent counsel. So it was
3 worked out between management and -- and her
4 that she could work at home, at least for a
5 temporary period of time. But there's no --
6 "SNOW: Now...
7 "COHEN: ...there's no plan to fire
8 her.
9 "SNOW: ...her personnel file was
10 made public. That's illegal, isn't it?
11 "COHEN: We think it's certainly
12 inappropriate, if not illegal. We called for
13 an investigation as to how that occurred. We
14 know the individual that did release it.
15 "SNOW: Was it Clifford Bernath?
16 Was he the one who did it?
17 "COHEN: Yes.
18 "SNOW: He was a public information
19 officer?
20 "COHEN: Right.
21 "SNOW: So he -- he knew the law.
22 "COHEN: Well, I don't know if he
348
1 knew the law. He was responding to a -- an
2 inquiry from the press. Frankly, I think
3 that everyone has to exercise a lot more
4 caution. Just because the press is inquiring
5 doesn't mean the press is entitled. So that
6 matter is -- is under investigation right now
7 in terms of what the implications are -- but
8 certainly, inappropriate.
9 "SNOW: Okay. Secretary Cohen,
10 finally, as you know, it's our two-year
11 anniversary."
12 Now, that's the statement that
13 Secretary Cohen made, correct?
14 A That is correct.
15 Q Prior to his appearance on Fox News
16 Sunday that day, had you discussed that
17 upcoming appearance with Secretary Cohen?
18 A Yes, I had.
19 Q When did you do that?
20 A I did it in the car on the way to
21 the studio.
22 Q The information contained in this
349
1 statement which he made on Fox Morning News,
2 Secretary Cohen, that came from his
3 discussion with you?
4 A No, it did not.
5 Q Where did it come from?
6 A It came from his own knowledge.
7 Q Where did he get that, to the best
8 of your knowledge?
9 A Well, I don't know where he got
10 that. I mean, some of it was responding to a
11 series of questions.
12 Q Had you discussed with Secretary
13 Cohen whether or not the release of Tripp's
14 information was inappropriate?
15 MS. WEISMANN: I'm going to object
16 to the question to the extent the question
17 calls for information that's both protected
18 by the deliberative process privilege and
19 also outside the scope of testimony to which
20 he's been authorized and, therefore, I direct
21 him not to answer.
22 MR. KLAYMAN: Certify. Did you
350
1 discuss with Secretary Cohen whether or not
2 the release of the Tripp information was
3 illegal?
4 MS. WEISMANN: Can you put a time
5 on that, a date and time.
6 MR. KLAYMAN: Prior to the
7 statement by Secretary Cohen.
8 MS. WEISMANN: To the extent you're
9 referring to the discussion in the car? Is
10 that the discussion?
11 MR. KLAYMAN: No. Just generally.
12 MS. WEISMANN: Well, to the extent
13 your question calls for him to talk about any
14 conversations he may have had with Secretary
15 Cohen prior to the time of the release, I
16 will allow him to answer.
17 To the extent the question calls
18 for him to disclose information that he
19 discussed with Secretary Cohen subsequent to
20 the release and includes information he gave
21 Secretary Cohen in planning for that
22 question, I assert both a deliberative