351
1 process privilege and an objection on the
2 basis that it's outside the scope of the
3 testimony to which he's been authorized to
4 present today and so instruct him to respond
5 accordingly.
6 MR. KLAYMAN: Certify it. Did you
7 discuss with Secretary Cohen prior to his
8 appearance on Fox News Sunday the
9 investigation as to how the Tripp release
10 occurred?
11 MS. WEISMANN: Same objection. I'm
12 going to object and ask him not to answer on
13 the grounds both that the question calls for
14 material covered by the deliberative process
15 privilege and also it's outside the scope of
16 the testimony to which he's been authorized
17 to testify to today, and I instruct him not
18 to answer.
19 MR. KLAYMAN: Certify it. Did you
20 discuss with Secretary Cohen whether only
21 Cliff Bernath should be named on this
22 appearance on Fox News Sunday as the one who
352
1 released Tripp's information?
2 MS. WEISMANN: I object to the
3 question both on the grounds that it calls
4 for information protected by the deliberative
5 process privilege and also because it asks
6 him to provide testimony that is outside the
7 scope of the testimony to which he's been
8 authorized today, and I direct him not to
9 answer.
10 MR. KLAYMAN: Certify it. Did
11 Mr. Cohen's statement that Clifford Bernath
12 was the one who released the Tripp
13 information on Fox News Sunday, did that
14 catch you by surprise when you heard it?
15 THE WITNESS: Not particularly.
16 BY MR. KLAYMAN:
17 Q Did it catch you by surprise that
18 you weren't named be Secretary Cohen, as
19 well, as releasing Tripp's information?
20 A Not particularly, one way or
21 another.
22 Q Did it catch you by surprise that
353
1 you weren't named at all by Secretary Cohen
2 as participating in the whole sequence of
3 events which gave rise to the release of
4 Tripp's information from her personnel file?
5 A Not particularly.
6 Q The reason it didn't catch you by
7 surprise is because you and Secretary Cohen
8 had decided that you were going to blame a
9 career employee rather than a political
10 appointee?
11 A Wrong. We never discussed that.
12 Q But you have discussed it with
13 others, correct?
14 A No.
15 Q You are aware of discussions to
16 that effect by others?
17 A I don't think that I am.
18 Q In fact, it was determined that the
19 reason that a career employee would be blamed
20 and not a political appointee was to keep any
21 negative aspersion off of the Clinton
22 Administration, correct?
354
1 A Wrong.
2 MS. WEISMANN: I object to the
3 question as lacking a proper foundation, but
4 he can answer.
5 THE WITNESS: I answered. It's
6 wrong.
7 BY MR. KLAYMAN:
8 Q Are you saying it's just a
9 coincidences that only Clifford Bernath was
10 being named as the person responsible for the
11 release of Tripp's information?
12 A No, I didn't say that. I said your
13 question was wrong.
14 Q After this statement was made by
15 Secretary Cohen, did you ever tell him as his
16 Press Secretary you better correct that. We
17 shouldn't be blaming just Cliff Bernath?
18 A Yes, I did.
19 Q When did you tell him that?
20 A I told it to him right afterwards.
21 Q What, if anything, did Secretary
22 Cohen do, that you know of?
355
1 MS. WEISMANN: Before he answers
2 that question, I would like to consult with
3 counsel. Let's take a 2-minute break.
4 (Recess)
5 MR. KLAYMAN: Mr. Bacon, before you
6 left the room I asked you not to discuss the
7 pending question with your counsel.
8 MR. MURPHY: I can't believe,
9 Mr. Klayman, that you would take it upon
10 yourself to direct my client to do anything
11 in my absence. I find that to be very
12 unprofessional.
13 MS. SHAPIRO: I find it unethical,
14 frankly, and I was present in the room.
15 MR. KLAYMAN: That's fine. You can
16 find it whatever you want, but I didn't want
17 the question interrupted and I was told that
18 he was going to stay in the room. You said,
19 "Counsel, we're going to meet out there." He
20 walked out.
21 I want to know did he discuss the
22 pending question with you, Mr. Murphy.
356
1 MR. MURPHY: It's none of your
2 business, Mr. Klayman, but the answer is no.
3 MR. KLAYMAN: Did you discuss the
4 pending question with your counsel?
5 MR. MURPHY: Do you detect any
6 anger in my voice, sir?
7 MR. KLAYMAN: I'm not going to
8 respond to you.
9 Did you discuss the pending
10 question with your counsel?
11 THE WITNESS: I was so shocked by
12 the instruction you gave me that I said to
13 Mr. Murphy that you had instructed me not to
14 talk to my counsel and I thought -- and I
15 said that's not proper, is it? That's not
16 the right way to do it, is it, and he said
17 you don't have to take the advice. But, in
18 fact, Mr. Murphy was exactly right, and we
19 did not discuss it beyond what I considered
20 to be an out-of-bounds instruction.
21 MR. KLAYMAN: Are you a legal
22 counselor where you were able to determine
357
1 whether it was an out-of-bounds instruction?
2 MR. MURPHY: Mr. Klayman, that's
3 not a fair question. The point is I object
4 to the whole procedure of you instructing
5 Mr. Bacon to do something and then sending
6 your little minion into the men's room to spy
7 on the conversation, which he did.
8 Maybe the little minion heard me
9 say to Mr. Bacon when Mr. Bacon asked that I
10 thought what you had done was improper, that
11 you can say anything you want, but he doesn't
12 have to listen to you. Then Mr. Bacon asked
13 how much time was left of this circus and
14 Mr. Lawsky was in the stall and I said,
15 "Mr. Lawsky, do you know how much time is
16 left?"
17 He said, "I think it's about 55
18 minutes left." That was the conversation.
19 You can ask your minion to verify it, okay?
20 MR. KLAYMAN: I don't have any
21 minions, and you don't have to insult my
22 assistant.
358
1 Just for the record, I was going to
2 advise you that I asked him not to talk to
3 you because what we've had in this
4 circumstance is a number of occasions when
5 Justice Department counsel has interrupted
6 questions to go consult with the witness and
7 obviously coach them in the middle of a
8 question. This was a crucial question.
9 I was not asked whether I was going
10 to be able to interrupt my questioning
11 involuntarily. You just got up and left and
12 on the way out stated, "This is a meeting of
13 counsel," so I took that to mean that no one
14 was going to discuss anything with the
15 witness and I wanted it clear.
16 MR. MURPHY: I don't really care
17 what you think, Mr. Klayman. I object to the
18 whole procedure. I object to your tactics.
19 I object to your methods. I object to your
20 ethics.
21 MR. KLAYMAN: Well, I object to
22 your ethics. He was never instructed to
359
1 listen to your conversation just to see
2 whether you were talking, because that's
3 inappropriate.
4 MR. MURPHY: So you admit that you
5 sent someone from your office into the men's
6 room to spy on my client and me?
7 MR. KLAYMAN: Just to see if you
8 were discussing things, not to hear you.
9 MR. MURPHY: I know what kind of
10 lawyer you are now. That's all I need to
11 know.
12 MR. KLAYMAN: Thank you. I know
13 what kind of lawyer you are, walking out of
14 this deposition in the middle of a question.
15 MR. MURPHY: I did not walk out in
16 the middle of a question. The question had
17 been objected to and no answer was going to
18 be given.
19 MR. KLAYMAN: That was not the case
20 at the time.
21 MR. MURPHY: I believe it was.
22 MR. KLAYMAN: That was not the case
360
1 at the time.
2 You interrupted my questioning to
3 go out and to consult with the witness
4 obviously to coach him.
5 MR. MURPHY: You are so full of it.
6 You have the record of what transpired now,
7 Mr. Klayman. Do you challenge that?
8 MR. KLAYMAN: Yes, I do.
9 MR. MURPHY: We'll put you under
10 oath and we'll ask you what happened.
11 MR. KLAYMAN: Mr. Bacon, are you
12 going to answer the question?
13 MR. MURPHY: What question is it?
14 MS. WEISMANN: I would like the
15 reporter to please read back the question
16 that was pending when I think it was I who
17 was the one that requested an opportunity to
18 take a break to consult with counsel.
19 MR. MURPHY: That's what I recall,
20 too, Ms. Weismann, but Mr. Klayman has a
21 better memory.
22 MR. KLAYMAN: The statement was
361
1 that counsel was going to consult with each
2 other, not that you were going to be meeting
3 with Mr. Bacon in the middle of my pending
4 question.
5 MR. MURPHY: I didn't. I went to
6 the men's room with him. We happen to be
7 there together at adjoining stalls.
8 MR. KLAYMAN: That's why I asked
9 him not to discuss the pending question, and
10 I was going to put it on the record and I
11 have put it on the record.
12 MR. MURPHY: I think it's entirely
13 inappropriate your whole course of conduct.
14 I think you really ought to get off of this,
15 Mr. Klayman, because I think that the record
16 is pretty smelly right now. I think you
17 really ought to get off it.
18 MR. KLAYMAN: I want to know.
19 MR. MURPHY: What do you want to
20 know?
21 MR. KLAYMAN: The answer to the
22 question.
362
1 MR. MURPHY: What is the question?
2 MR. KLAYMAN: Will you read it
3 back, please.
4 (The reporter read the record as
5 requested.)
6 MR. KLAYMAN: After you told him
7 that he shouldn't have just blamed Bernath?
8 MS. WEISMANN: I am going to object
9 to this question. It's calls for information
10 that's outside the scope of that to which
11 Mr. Bacon has been authorized to testify to
12 today, and I'm going to direct him not to
13 answer.
14 MR. KLAYMAN: Certify it. Did you
15 discuss that with your counsel, that
16 question?
17 THE WITNESS: I did not. As I've
18 already told you, I did not.
19 BY MR. KLAYMAN:
20 Q Are you aware of any public
21 statement that Secretary Cone has made
22 correcting the record that you were involved,
363
1 as well, in the sequence of events which led
2 to the release of Linda Tripp's information?
3 A I am not.
4 Q Are you aware of any public
5 statement coming out of the Department of
6 Defense that you were involved in the
7 sequence of events that lead to the release
8 of information concerning Linda Tripp?
9 A I am not.
10 Q Are you aware of any information
11 coming out of the Clinton Administration
12 generally that you were involved in the
13 sequence of events which lead to the release
14 of the information concerning Linda Tripp?
15 A I am not.
16 Q The statement made by Secretary
17 Cohen on Fox News Sunday is not complete that
18 it was Clifford Bernath that was responsible,
19 correct?
20 A I think I made it clear in my
21 testimony today how Cliff and I discussed
22 this, and I don't think there's anything more
364
1 to say.
2 Q That was not my question. My
3 question is the statement made by Secretary
4 Cohen on Fox News Sunday that I just read to
5 you is incomplete because it does not explain
6 that you were also involved in the sequence
7 of events which lead to the release of
8 information concerning Linda Tripp?
9 A He responded to the question
10 completely as it was posed.
11 Q Is Secretary Cohen's statement here
12 accurate when he says, "we know the
13 individual that did release it"? Is that
14 accurate, based on your information?
15 A I think I've answered the question.
16 Q Yes or no?
17 A I've answered the question.
18 Q Is that accurate?
19 A I've answer the question.
20 Q It's a simple question. Is that an
21 accurate statement based on the information
22 available to you?
365
1 A I've answered the question.
2 Q Yes or no?
3 A I've answered the question.
4 Q Please answer.
5 A I've answered.
6 Q You have not answered that
7 question. I have never asked you the
8 question with regard to this specific
9 statement made by Secretary Cohen.
10 MR. MURPHY: What is the question,
11 again?
12 MR. KLAYMAN: When he says, "we
13 know the individual that did release it."
14 "Was it Clifford Bernath? Was he
15 the one who did it?
16 "COHEN: Yes." Is that an accurate
17 statement?
18 THE WITNESS: What I've testified
19 is that I knew exactly what Clifford Bernath
20 was doing and I did nothing to stop it. I
21 believe that Secretary Cohen answered the
22 question accurately as it was posed to him.
366
1 BY MR. KLAYMAN:
2 Q Secretary Cohen had that
3 information that you knew what was going on
4 and did nothing to stop it before he made the
5 statement on Fox Morning News?
6 A We've already discussed that.
7 Q Did he have that information?
8 A He did not have it.
9 Q You continued to withhold that
10 information from Secretary Cohen up to and
11 including his appearance on April 26, 1998 on
12 Fox Morning News?
13 MS. WEISMANN: I object.
14 MR. MURPHY: Objection.
15 THE WITNESS: I did not withhold
16 any information from him.
17 BY MR. KLAYMAN:
18 Q But you didn't tell him either, did
19 you?
20 A I did not tell him. I gave him
21 other advice.
22 Q So you continued to keep Secretary
367
1 Cohen in the dark right up to and including
2 his appearance on Fox Morning News on
3 April 26, 1998?
4 MS. WEISMANN: I'm going to cut off
5 this line of questioning right now. Again,
6 it is outside the scope of that to which he
7 has been authorized to testify. Would you
8 please move on to more relevant topics.
9 THE WITNESS: There is an I.G.
10 Investigation underway and, basically, I have
11 not spoken about this event to anybody but
12 the I.G. since the I.G. investigation
13 started.
14 BY MR. KLAYMAN:
15 Q Where did Secretary Cohen get the
16 information that only Cliff Bernath was
17 involved?
18 A He seemed to get it right there
19 from Tony Snow.
20 Q Did you ever say to Secretary
21 Cohen, "We better correct this misimpression.
22 There were more people involved than just
368
1 Cliff Bernath"?
2 MR. MURPHY: Objection.
3 THE WITNESS: I've answered that
4 question.
5 MR. KLAYMAN: What's the answer?
6 THE WITNESS: The answer is yes.
7 MR. KLAYMAN: Did Secretary Cohen
8 then say, "I guess we better correct this.
9 We don't want to blame just Mr. Bernath"?
10 MR. MURPHY: Objection.
11 MS. WEISMANN: I've made this
12 objection before. I have said we're not
13 going to allow any further inquiry into that
14 subject matter. Would you please move on to
15 other relevant topics to which he's been
16 authorized to testify to.
17 MR. KLAYMAN: Certify it. Based on
18 your professional experience, do you not
19 believe there was an obligation to give the
20 American people the full facts of what
21 happened?
22 MR. MURPHY: Objection.
369
1 MR. KLAYMAN: You can respond.
2 MR. MURPHY: It's rhetorical.
3 MS. WEISMANN: Obligation on whose
4 part?
5 MR. KLAYMAN: The Department of
6 Defense.
7 THE WITNESS: I assume that the
8 I.G.'s investigation will determine what
9 happened. At that point it will be
10 appropriate to discuss it. Right now I think
11 we'll wait for the investigation to be
12 complete.
13 MR. KLAYMAN: Given your position
14 that since there's an ongoing investigation
15 going on and, therefore, because of that it's
16 not necessary to give the American people all
17 the facts, then why is it that Cliff Bernath
18 was revealed?
19 MR. MURPHY: Objection. That's an
20 argumentative question.
21 MR. KLAYMAN: Based on your
22 understanding?
370
1 THE WITNESS: My counsel has
2 objected.
3 MS. WEISMANN: Well, I am going to
4 object also and instruct him not to answer.
5 This is a statement that Mr. Cohen has made.
6 Mr. Bacon has given the full knowledge he has
7 as to what Mr. Cohen said and did not say,
8 subject to my objection. I am not going to
9 allow him to answer any further questions on
10 that topic. It's outside the scope of what
11 he's been authorized to testify to and it's
12 becoming repetitive and abusive.
13 MR. KLAYMAN: Why are Mr. Cohen's
14 actions not relevant?
15 THE WITNESS: I have explained the
16 nature of my objection here.
17 MR. KLAYMAN: Are they not relevant
18 because he's a cabinet official of the
19 Clinton Administration selected personally by
20 President Clinton?
21 THE WITNESS: That has never been
22 the basis of my objection. My objection
371
1 stands and speaks for itself.
2 MR. KLAYMAN: Are they not relevant
3 because if he has any involvement in this
4 matter this may redound to the detriment of
5 the Clinton Administration?
6 MS. WEISMANN: That has never been
7 the basis of my objection.
8 MR. KLAYMAN: What is the basis?
9 MS. WEISMANN: I will draw your
10 attention to the letter of May 14, 1998
11 written to you, Mr. Klayman, signed by Harold
12 Faloff, the Deputy General Counsel, outlining
13 the areas of testimony to which Mr. Bacon has
14 been authorized to testify to.
15 You've been asking questions that
16 fall outside the scope of that to which he's
17 been authorized to testify to, and that is
18 the basis for my instructions.
19 MR. MURPHY: Mr. Klayman, I'm tired
20 of listening to your speeches. I would like
21 for you to ask a question of the witness.
22 MR. KLAYMAN: I'm tired of being
372
1 interrupted, Mr. Murphy, and I'm tired of
2 having the witness instructed that they can't
3 answer questions which this court has already
4 ordered they can answer.
5 MR. MURPHY: I don't believe
6 that's --
7 MR. KLAYMAN: There is absolutely
8 no distinction between any person who's
9 involved in these sequence of events, whether
10 it's the Secretary of Defense, Clifford
11 Bernath, or Mr. Bacon.
12 MR. MURPHY: You already have all
13 of the information about the secretary's lack
14 of involvement in these events, Mr. Klayman.
15 Move along, please.
16 MR. KLAYMAN: We don't have all of
17 the information because this witness has been
18 instructed not to answer.
19 MR. MURPHY: I think that that is
20 an incorrect statement, sir.
21 MR. KLAYMAN: You talked to the
22 Chief of Staff about this statement made by
373
1 Secretary Cohen, did you not, Mr. Tyrer?
2 THE WITNESS: I talked to him after
3 the fact, yes.
4 MR. KLAYMAN: What did you say to
5 him?
6 MS. WEISMANN: I'm going to
7 instruct the witness not to answer. Again,
8 this goes outside the scope of that to which
9 he's been authorized to testify.
10 MR. KLAYMAN: This deals with
11 whether or not there was a political
12 motivation in terms of what happened.
13 Clearly, by the statement which you
14 inappropriately read from the Court order
15 earlier in front of the witness to coach him.
16 Clearly, that was even in that statement by
17 the Court.
18 MS. WEISMANN: Let me be clear that
19 my motive in reading that statement was not
20 to coach the witness but, rather, to make the
21 record entirely clear as to the basis for my
22 objection.
374
1 MR. KLAYMAN: Could you explain the
2 circumstances of the situation before the
3 Cohen statement was made?
4 I'll withdraw that.
5 MR. MURPHY: Bad question. Next.
6 BY MR. KLAYMAN:
7 Q Is Secretary Cohen's conduct under
8 investigation concerning the Linda Tripp
9 release?
10 A I don't believe so, but I don't
11 know the full -- first of all, let me state
12 again for the record, as I have stated many
13 times before, Secretary Cohen knew nothing
14 about the circumstances of this release
15 before the information was released. I
16 stated that many times.
17 You've asked me a number of
18 questions about that and I want to state it
19 one more time. He knew nothing about the
20 circumstances of the release of this
21 information; therefore, I have to assume the
22 answer to that is no.
375
1 Q But you don't know?
2 A I don't know the scope of the
3 I.G.'s investigation because I'm not a party
4 to the scope of it.
5 Q You don't know whether Secretary
6 Cohen has had communications with the White
7 House about the circumstances involving Linda
8 Tripp's release of her personnel information?
9 A I have no indication that he has.
10 Q But you don't know one way or the
11 other, do you?
12 A I do not.
13 Q You don't know whether or not
14 Secretary Cohen was instructed by the White
15 House to cover up your involvement in this
16 matter, do you?
17 MR. MURPHY: Objection. You can
18 answer.
19 THE WITNESS: I would be astonished
20 if that's the case, but I have no idea.
21 BY MR. KLAYMAN:
22 Q But you don't have any information,
376
1 one way or the other?
2 A That is true.
3 Q You don't have any information, one
4 way or the other, as to whether or not
5 Secretary Cohen was instructed by the White
6 House to make sure that a career employee,
7 not a political appointee, of the President
8 was blamed for this release of Linda Tripp's
9 information?
10 MR. MURPHY: Objection. You can
11 answer.
12 THE WITNESS: I have no indication
13 that that is the case.
14 BY MR. KLAYMAN:
15 Q You don't have any information, one
16 way or the other, do you?
17 A I do not.
18 Q You previously testified that when
19 Secretary Cohen made that statement on Fox
20 News Sunday you told him that he ought to
21 correct it by releasing full information as
22 to who had been involved in the release?
377
1 A That's not what I said, sir.
2 MS. WEISMANN: I'm going to object
3 to the question again. I made it clear this
4 line of inquiry is not within the scope of
5 testimony to what he's been authorized to
6 testify to, and I also think you've
7 mischaracterized what he has said today, and
8 I am going to instruct him not to answer.
9 MR. KLAYMAN: Certify it.
10 MS. WEISMANN: I also want to add
11 to that it's also covered by the deliberative
12 process privilege and it's also privileged on
13 that basis, as well.
14 MR. MURPHY: Do you have a
15 question, Mr. Klayman?
16 MR. KLAYMAN: Mr. Murphy, please
17 stop baiting me. It's unnecessary. These
18 little wisecracks really are unnecessary.
19 MR. MURPHY: You're staring at my
20 client and I just was wondering if you had a
21 question for him.
22 MR. KLAYMAN: Actually, I was
378
1 staring at Ms. Shapiro.
2 MR. MURPHY: You must have vision
3 out the side of your forehead. Insect eyes.
4 MR. KLAYMAN: Insect eyes? Are you
5 insulting me now?
6 MR. MURPHY: I don't know.
7 MR. KLAYMAN: After Secretary Cohen
8 made this statement which named only Clifford
9 Bernath as the one responsible, did you or
10 anyone else at the Department of Defense
11 receive inquiries from the press about
12 whether or not others were involved?
13 MS. WEISMANN: I'm going to object
14 to this question and again instruct the
15 witness not to answer. What happened in the
16 months following the alleged release of
17 information concerning Linda Tripp has no
18 relevance to the limited area that the Court
19 has suggested you might be able to inquire
20 into.
21 It's outside the scope of that to
22 which he has been authorized to testify to
379
1 today and, therefore, I am instructing him
2 not to answer.
3 MR. KLAYMAN: I was laying a
4 foundation because there may have been
5 conversations with members of the media which
6 then revealed further information, as we say
7 saw earlier in this deposition when certain
8 information was not disclosed about
9 conversations initially when we discussed
10 those conversations, only to find out it was
11 disclosed later when I asked about specific
12 matters.
13 These kinds of questions can give
14 rise to information which is relevant or
15 which may lead to relevant evidence.
16 Will you withdraw your objection?
17 MS. WEISMANN: I won't withdraw my
18 objection, but I will amend it to say that to
19 the extent there were subsequent inquiries
20 and as a result of that inquiry he learned
21 new information relating to the circumstances
22 under which information was released to Linda
380
1 Tripp, he may answer it.
2 MR. MURPHY: Could you read that
3 question back.
4 MS. WEISMANN: Information to Jane
5 Mayer. I'm sorry.
6 MR. KLAYMAN: I'll ask the question
7 again. Did you have any conversations with
8 members of the media since this appearance by
9 Secretary Cohen on Fox News Sunday, which
10 discussed the release of the Linda Tripp
11 information?
12 THE WITNESS: Yes.
13 BY MR. KLAYMAN:
14 Q Who did you have conversations
15 with?
16 A I had a conversation with Howard
17 Kurtz of The Washington Post.
18 Q When did that occur?
19 A That occurred after Clifford
20 Bernath's deposition.
21 Q What did Mr. Kurtz ask you?
22 MS. WEISMANN: Again, I'm going to
381
1 raise the same objection I made before. To
2 the extent that any discussions he may have
3 had with Mr. Kurtz revealed to him
4 information he didn't know up to that point
5 about what happened with respect to the
6 release of information for Linda Tripp, he
7 may answer. Otherwise, I am instructing him
8 not to answer because it's outside the scope
9 of that to which he's been authorized to
10 testify to.
11 BY MR. KLAYMAN:
12 Q Mr. Kurtz asked you whether or not
13 you were the one who was responsible or
14 instructed Mr. Bernath to release the Linda
15 Tripp information, correct?
16 A That's not exactly what he asked
17 me. He asked me if the statements that I had
18 instructed Cliff Bernath to release this
19 information and that I had told him that this
20 was a matter of high priority were correct
21 statements, and I said they were not, that
22 that was not an accurate account of the
382
1 conversations I had with Cliff Bernath.
2 Q Mr. Kurtz then asked you well why
3 are you taking that position?
4 A I gave him the answer that I gave
5 him and that was it.
6 Q Mr. Bacon, did you discuss your
7 involvement in the Tripp release with
8 Mr. Tyrer before Secretary Cohen made his
9 statement on Fox Morning News?
10 MS. WEISMANN: I'm going to object.
11 It's outside the scope of that to which he
12 has been authorized to testify to. If he had
13 discussions that were contemporaneous in time
14 with the release of the information, he can
15 answer that; otherwise, he cannot.
16 THE WITNESS: I've already
17 testified that I had no discussions with
18 anybody but Mr. Bernath contemporaneous to
19 the time of the release. That is before the
20 information was released.
21 MR. KLAYMAN: Certify it. Did you
22 ever have any discussions with Secretary
383
1 Cohen as to whether or not Linda Tripp
2 answered the way she did on Form 398, that
3 was a serious matter that needed to be
4 investigated by the Pentagon?
5 MS. WEISMANN: I'm going to object
6 to this question. Again, it's call for
7 testimony that's outside the scope of that to
8 which he's been authorized to testify and
9 also protected by the deliberative process
10 privilege. I am going to instruct the
11 witness not to answer.
12 MR. KLAYMAN: Certify it. Were you
13 aware of anyone else having conversations
14 with Secretary Cohen or communications of any
15 type, orally or in writing, about whether or
16 not if Linda Tripp's statement that she had
17 never been arrested was true, that that would
18 be a serious matter that needed to be
19 investigated by the Pentagon?
20 MS. WEISMANN: I object. It's the
21 same objection. It's outside the scope of
22 that to which he's authorized to testify and
384
1 I direct him not to answer.
2 MR. KLAYMAN: Certify it. Now,
3 after Mr. Bernath released the information to
4 Ms. Mayer, was he removed from his position
5 at the time?
6 THE WITNESS: Removed?
7 MS. WEISMANN: I would like to take
8 a minute to consult with counsel.
9 (Recess)
10 MS. WEISMANN: I'm not going to
11 allow Mr. Bacon to testify generally to the
12 Department's reaction to the dissemination of
13 this information. Subject to that
14 limitation, I will allow him to answer the
15 question that is pending.
16 MR. MURPHY: Maybe we ought to have
17 it read back.
18 THE WITNESS: What's the question?
19 I remember the objection but I don't remember
20 the question.
21 (The reporter read the record as
22 requested.)
385
1 MR. KLAYMAN: You can respond.
2 THE WITNESS: What was the
3 objection and what did you say?
4 MS. WEISMANN: You can answer this
5 question.
6 THE WITNESS: "Removed" is the
7 wrong word. I had been considering Cliff and
8 two other people for a job running the
9 American Forces Information Service. When I
10 left town on Saturday, the 14th, I had
11 received essays from three candidates and I
12 had interviewed all three candidates and I
13 left town with the determination to decide
14 among the three who would get that job, and I
15 ultimately decided that it was Cliff.
16 BY MR. KLAYMAN:
17 Q That job continues to work under
18 your supervision and control?
19 A Yes, it does.
20 Q Is there any increase in salary
21 attributed to that new position?
22 A I believe there was, yes.
386
1 Q How much?
2 A I do not know.
3 Q What is the difference in grade?
4 A I think there's one difference in
5 grade.
6 Q How much would that generally be,
7 based on your experience?
8 A I have no idea.
9 Q 10, 20 thousand dollars per year?
10 A I have no idea.
11 Q What are the differences in grade,
12 specifically?
13 A I don't know.
14 Q You offered him that higher-paying
15 position basically to reward him for taking
16 the blame, correct?
17 A No, that is wrong.
18 Q In fact, the higher grade was
19 intended to keep him from telling everything
20 he knew about this matter, correct?
21 A Wrong again.
22 MR. MURPHY: I apologize for
387
1 chuckling, Mr. Klayman. I just couldn't hold
2 it in.
3 MR. KLAYMAN: You chuckle, as well,
4 over Webster Hubbell?
5 MR. MURPHY: I don't chuckle over
6 anyone that's been indicted.
7 THE WITNESS: Let me be very clear.
8 I offered him that job because I thought he
9 was the best of the three candidates.
10 BY MR. KLAYMAN:
11 Q Had before Bernath ever been
12 advised before you offered him that job after
13 the release of the Tripp information that he
14 was being considered for it?
15 A Yes. He had not only gone through
16 an interview, but he had submitted an essay
17 along with two other candidates.
18 Q But he had never been notified
19 before that he was actually selected?
20 A Well, I hadn't actually made the
21 selection at the time on March 13th.
22 Q When did you actually make the
388
1 selection?
2 A I made it sometime during the week
3 of March 16th.
4 Q Who were the candidates that he was
5 competing with?
6 A I don't think that's relevant.
7 MS. WEISMANN: I am going to object
8 to that. That has absolutely no relevance to
9 this inquiry. It's outside the scope of what
10 he's been authorized to testify to. I'm
11 going to direct him not to reveal their
12 identities or any information about them.
13 MR. KLAYMAN: Were there candidates
14 that he was competing against?
15 THE WITNESS: I've already said
16 that there were two, yes.
17 MR. KLAYMAN: If you don't want to
18 identify their names, tell us what their job
19 position was and what their qualifications
20 were.
21 MS. WEISMANN: I'm going to object
22 to that question. It's asking for
389
1 information outside the scope of anything
2 that is conceivably relevant to this matter
3 and outside the scope, therefore, of what
4 he's been authorized to testify to, and I
5 direct him not to answer.
6 MR. KLAYMAN: Certify. Do you have
7 anything in writing that would substantiate
8 your statement that Mr. Bernath was being
9 considered for this higher-paying position
10 before the release of the Tripp information?
11 MR. MURPHY: Are there documents in
12 writing?
13 MR. KLAYMAN: Yes.
14 THE WITNESS: Well, I certainly
15 have the three written responses I requested
16 and I did send an e-mail to each of the three
17 candidates asking for those responses. Then
18 all three were asked to come in and have
19 interviews with me I think during the week of
20 March 6th, but it could have been the prior
21 week.
22 BY MR. KLAYMAN:
390
1 Q Did Mr. Bernath have an interview
2 that week?
3 A I don't recall when he had his
4 interview.
5 Q Did you send an e-mail to
6 Mr. Bernath prior to the release of the Tripp
7 information about this issue?
8 A I sent either an e-mail or a
9 handwritten note to him asking him, 1, to --
10 well, asking him one thing, the same thing I
11 asked of the other two candidates, which was
12 to answer several questions for me and to
13 write an essay about the American Forces
14 Information Service.
15 Q Did Mr. Bernath ever express an
16 interest in this new position before the
17 release of the Tripp information?
18 A He had expressed an interest more
19 than a year ago.
20 Q Do you have that in writing, that
21 interest more than a year ago? Did he put
22 that in writing?
391
1 A I don't believe so, but I was well
2 aware of his interest.
3 Q Did you ever do an evaluation of
4 the three candidates in writing before you
5 selected Mr. Bernath?
6 A I did not.
7 Q Did anyone in the department do
8 such an evaluation?
9 A Not that I'm aware of. I made the
10 choice alone.
11 Q When you made the choice, was there
12 anything in writing that reflects why you
13 made the choice?
14 A No.
15 Q Was there any form you filled out
16 that designated Mr. Bernath for this
17 position?
18 A I don't believe I filled out a
19 form. We did send a letter out announcing
20 his position.
21 Q Do you know Anthony Marceca?
22 A I do not.
392
1 Q Do you have any information as to
2 why he was detailed from the Department of
3 Defense to the White House?
4 A I do not. That happened, I
5 believe, before I got there.
6 Q Are you aware that Mr. Marceca is
7 involved in this lawsuit?
8 A If you tell me he is, he must be,
9 but I was not aware of that.
10 Q Have you ever received any press
11 inquiries concerning Mr. Marceca?
12 A It occurs to me that we may have
13 received a press inquiry several years ago.
14 Q When you were at the Pentagon?
15 A Yes.
16 Q What was that press inquiry?
17 A I do not recall.
18 Q Have you had any contact with Linda
19 Tripp or her lawyer since the information has
20 been released?
21 A I have not.
22 Q Has the Pentagon?
393
1 A Yes, on issues involving her work.
2 Q Any contact with regard to the
3 release of her confidential Privacy Act
4 information?
5 A Not that I'm aware of.
6 Q Have you or the Pentagon been
7 threatened with a lawsuit by Ms. Tripp or her
8 counsel?
9 A Not that I'm aware of.
10 Q Has Mr. Bernath?
11 A Not that I'm aware of.
12 Q Do you anticipate being sued by
13 Ms. Tripp?
14 MS. WEISMANN: I'm going to object.
15 MR. KLAYMAN: He can respond.
16 MS. WEISMANN: Wait a minute,
17 Mr. Klayman. Please allow me to finish my
18 objection. I'm going to object to the
19 question as irrelevant.
20 MR. KLAYMAN: It deals with state
21 of mind. Before your deposition today, did
22 you consider it a possibility that Ms. Tripp
394
1 would sue you for violation of privacy?
2 THE WITNESS: No.
3 BY MR. KLAYMAN:
4 Q It never has crossed your mind?
5 A No. Nor does it cross my mind now.
6 Q Are you aware that the lawsuit that
7 you're here on today deals with allegations
8 of violation of privacy rights?
9 A I don't really know why I'm here
10 today.
11 Q No one has ever told you?
12 A Well, I haven't gone back and
13 investigated the suit that initially kicked
14 this proceeding off, no.
15 Q Has anyone told you that this case
16 concerns a controversy known as Filegate?
17 A I've heard that, yes.
18 Q You know what Filegate is, don't
19 you?
20 A I have a vague knowledge of
21 Filegate.
22 Q That was the release of FBI files
395
1 by the FBI to White House about Republicans
2 and others.
3 MS. WEISMANN: I object to the
4 question as improperly characterizing the
5 allegations, but he can respond.
6 MS. SHAPIRO: I also object that it
7 mischaracterizes your own complaint.
8 MR. KLAYMAN: I'm trying to
9 identify with the witness whether he has
10 heard anything to that effect.
11 MS. SHAPIRO: The objection is to
12 form.
13 THE WITNESS: Could you repeat the
14 question, please.
15 MR. MURPHY: Do you know what the
16 Filegate case is all about?
17 THE WITNESS: Vaguely. Vaguely.
18 BY MR. KLAYMAN:
19 Q Other than Howard Kurtz, did you
20 discuss the release of Ms. Tripp's
21 information with any other reporter after the
22 appearance of Secretary Cohen on Fox News
396
1 Sunday?
2 A I believe that both the Associated
3 Press and CNN asked me questions and I gave
4 them the same response I gave to Howard
5 Kurtz.
6 Q Who of the Associated Press?
7 A Susan Shaeffer.
8 Q Who at CNN?
9 A I believe it was Jamie McIntyre,
10 but I'm not positive.
11 Q Before you gave that response to
12 CNN, Associated Press and Howard Kurtz of The
13 Washington Post, did you clear that response
14 with anyone at the Department of Defense?
15 A I did not.
16 Q Did you clear it with anyone in the
17 Clinton Administration?
18 A I did not.
19 Q Did you discuss it with anyone at
20 the Department of Defense?
21 A I did not.
22 Q Or the Clinton Administration, in
397
1 general?
2 A I did not.
3 Q Have you ever had lunch or dinner
4 or anything like that with Mike McCurry?
5 A I had lunch with him in Seoul,
6 Korea. It wasn't even Seoul. It was another
7 town in Korea in 1996 or '97, I believe was
8 the only meal I've had with him.
9 Q Have you met with him in the last 6
10 months?
11 A I have not met with him in the way
12 you mean the term "met."
13 Q Well, I don't know what I mean.
14 A Me either, but I assume you mean
15 sitting around the table having a discussion
16 as we are today?
17 Q What do you mean?
18 A I mean having a lengthy meeting
19 with him. I talk to Mike McCurry on the
20 phone, as I explained earlier, several times
21 a week, usually daily if he's not traveling
22 and if I'm not traveling, during a noon
398
1 conference call to discuss foreign and
2 defense policy.
3 I see him occasionally when I go to
4 the White House. I mean, I go to the White
5 House occasionally with Secretary Cohen and
6 often see him there.
7 Q Are you aware that he's been asked
8 questions about the release of the Tripp
9 information?
10 A I am not aware of that, no.
11 Q Has he never inquired with you
12 about the underlying facts and events?
13 A He has not.
14 Q Have you ever met Erskine Boles?
15 A I may have shaken his hand but I
16 can't -- I mean, I've been in a room with him
17 and I may at one point have shaken his hand,
18 but I don't have any specific recollection of
19 doing that. I've had no extended
20 conversation with him.
21 Q Have you, yourself, received any
22 increases in salary in the last 6 months?
399
1 A I received the same increase that
2 every government employee has received, which
3 is a cost-of-living allowance increase.
4 Q Are you being considered for any
5 promotions or increase in salary?
6 A I think I maxed out in my current
7 job and cannot be considered for promotion.
8 Q Has anyone discussed with you the
9 likely result of the ongoing investigations
10 of the release of Tripp's information?
11 MS. WEISMANN: I'm going to object
12 to the question. As I've told you
13 repeatedly, that is a subject to which he's
14 not authorized to testify and I'm going to
15 direct him not to answer.
16 MR. KLAYMAN: Certify it. Have you
17 had conversations with Cliff Bernath saying,
18 "Don't worry. Everything will be all right,"
19 something to that effect?
20 THE WITNESS: I don't think so. I
21 may have said something to him, "This, too,
22 shall pass," or something like that.
400
1 I think that the record that I've
2 given here, the testimony that I've given
3 here makes it very clear that we made this
4 decision quickly, that it was one of many
5 decisions that we were dealing with that day,
6 and I assume that when the facts are out
7 people will understand that this was not done
8 for a trouble making reason at all.
9 It was one of many decisions we
10 made. But I do not believe that I have said
11 anything beyond, "This, too, shall pass."
12 BY MR. KLAYMAN:
13 Q What did you mean by, "this, too,
14 shall pass"?
15 A That this will not end up being a
16 problem for him or for me.
17 Q You made that statement based upon
18 assurances from your superiors, correct?
19 A No. That's wrong.
20 Q What leads you to believe that this
21 will not be a problem for you or him?
22 A A hunch, more than anything else.