151
1 Lewinsky had been taped by Linda Tripp?
2 A Actually I don't recall that degree
3 of specificity from the White House.
4 Q What do you recall from the White
5 House at the time?
6 A I recall that the White House
7 objected to the accusation about an affair
8 with Monica Lewinsky. That's what I
9 remember.
10 Q The accusation made by Ms. Tripp
11 among others?
12 A You asked me what I recall and
13 that's what I recall.
14 Q Yes. You are aware that Ms. Tripp
15 is the one who came forward and said that
16 Monica Lewinsky had told her that she had an
17 affair with the President, correct?
18 A Yes.
19 Q You're aware that the White House
20 reacted negatively to that, correct?
21 A Again, I'm aware that the White
22 House denied the accusation about Monica
152
1 Lewinsky having an affair with the President.
2 If you call that negative, then that's
3 negative.
4 Q You viewed it as negative, did you
5 not?
6 A I didn't view it. I have to tell
7 you that that was not my concern. That was
8 not my concern.
9 Q Do you think from reports that the
10 White House was happy about this whole thing?
11 A I think that that was not my
12 concern, what the White House felt one way or
13 the other. I was doing other things.
14 Q I'm not asking for your concern.
15 I'm asking for your own understanding of the
16 White House's position with regard to what
17 Linda Tripp had done.
18 A I believe I've answered the
19 question. I don't know how else to answer
20 the question.
21 Q They were not happy with it, were
22 they?
153
1 A I don't know what they were. I
2 don't work at the White House.
3 Q Based on what you understood from
4 the media?
5 MR. QUINLIVAN: Counsel, this line
6 of inquiry has been asked and answered.
7 BY MR. KLAYMAN:
8 Q Please respond.
9 A I believe I did.
10 Q Please respond.
11 A What I was aware of was that the
12 White House objected to the characterization
13 of the charge of sexual conduct with Monica
14 Lewinsky. That's what I remember from the
15 articles.
16 Q Were aware that the White House had
17 criticized the conduct of Linda Tripp,
18 correct?
19 A I am not aware of that.
20 Q You didn't read that in the media?
21 A I don't recall reading that in the
22 media.
154
1 Q You had no in interest in finding
2 out what the media was saying at that time?
3 A I was working a specific part of
4 this and you asked me a question. I answered
5 the question.
6 Q You were the press officer of the
7 Pentagon at the time, correct?
8 A No, that's not even correct. The
9 press officer -- the people who deal with the
10 media most of the time are Mr. Bacon and the
11 director of defense information. My title
12 was not press officer.
13 Q But as part of your duties and
14 responsibilities, you were to keep informed
15 as to what was occurring with regard to your
16 employees, correct?
17 A Uh-huh, yes.
18 Q You were in charge with
19 establishing public affairs policy and
20 doctrine for the Department of Defense, were
21 you not?
22 A Yes.
155
1 Q Part of your responsibilities were
2 the day-to-day operation and management of
3 the office of the Assistant Secretary of
4 Defense, Public Affairs, correct?
5 A That's correct.
6 Q I will show you what I will ask the
7 court reporter to mark as Exhibit 5.
8 (Bernath Deposition Exhibit
9 No. 5 was marked for
10 identification.)
11 BY MR. KLAYMAN:
12 Q Showing you Exhibit 5, what is
13 Exhibit 5, Mr. Bernath?
14 A That's my bio, my biography.
15 Q Is this an official Department of
16 Defense biography?
17 A Yes, it is.
18 Q This biography was prepared in and
19 around what period of time?
20 A A year or two ago.
21 Q This biography accurately describes
22 your duties and responsibilities as Principal
156
1 Deputy, Secretary of Defense, Public Affairs,
2 correct?
3 A It provides a broad summary of my
4 duties.
5 Q Is there anything that's inaccurate
6 in here?
7 A No, there's nothing that is
8 inaccurate.
9 Q Is there anything that you did in
10 that position that is not listed in
11 Exhibit 5?
12 A Certainly.
13 Q What is that?
14 A Let me answer it generally. My
15 working day at the Pentagon was 6 o'clock in
16 the morning until 8:30 at night. I did a lot
17 of things that you cannot characterize in a
18 one-page summary. I don't think anybody's
19 biography accurately depicts every specific
20 detail of their jobs every day of the year.
21 So this is an accurate summary of my job.
22 Q As part of your duties and
157
1 responsibilities, you sometimes came to deal
2 with Privacy Act information, is that not the
3 case?
4 A Yes, and Freedom of Information,
5 yes.
6 Q In fact, you were trained on how to
7 deal with Privacy Act and Freedom of
8 Information Act information, were you not?
9 A Many years ago I was at a course,
10 yeah.
11 Q That course was provided by the
12 Department of Defense?
13 A Yes.
14 Q What was the name of the course?
15 A I don't remember.
16 Q Where did the course take place?
17 A I would imagine at the Pentagon. I
18 don't specifically remember it, but I'm sure
19 I did.
20 Q It was part of the general training
21 procedures at the Pentagon, correct?
22 A I believe so.
158
1 Q They explained to you what Privacy
2 Act material was?
3 A I'm sure they did.
4 Q They explained to you what should
5 and should not be released to the public
6 under the Privacy Act, correct?
7 A They went over types, but also --
8 but also indicated that there is a not
9 absolute privacy. In other words, there are
10 some judgment calls.
11 Q But they did tell you what should
12 not be released under the Privacy Act?
13 A In general, types of information
14 that should not be, yes.
15 Q What did they tell you was the
16 types of information that could be released?
17 A Information about terms of
18 employment are, generally, releasable. I
19 don't remember in details the course.
20 Q What do you mean by terms of
21 employment?
22 A When a person arrived, their rank,
159
1 pay are, generally, releasable.
2 Q Just basic information, correct?
3 A Correct.
4 Q But they didn't tell you that you
5 could release information from forms that
6 were filed out by an employee in confidence,
7 did they?
8 A I don't remember what they said
9 about -- I don't know that we ever got to
10 specific forms.
11 Q They gave you some written
12 materials, did they not, to review for that
13 course, they meaning the Department of
14 Defense?
15 A If they did, I don't have them. I
16 don't know. I can't remember.
17 Q You don't have them currently?
18 A Yeah, I don't remember having them.
19 Q So you may have had them, but you
20 just don't remember?
21 A That's correct.
22 Q In the course of your duties and
160
1 responsibilities in your various jobs at the
2 Department of Defense have you ever dealt
3 with Privacy Act materials up to the point of
4 the Linda Tripp controversy?
5 A In the course of my
6 responsibilities I have been asked questions
7 about people and I have released information.
8 I am not -- things have not come across my
9 desk as a matter of specifically this is a
10 privacy matter or not. So I haven't dealt
11 with it specifically in that way.
12 Q On what occasions were you asked
13 questions about matters that was concerning
14 the Privacy Act up to Linda Tripp?
15 A Is your question what types of
16 information have I released that may have
17 privacy implications?
18 Q My question is, what information
19 were you asked about up to the point of Linda
20 Tripp that may have privacy implications?
21 A Well, we dealt with many issues
22 pertaining to then Secretary of Defense Aspin
161
1 concerning his taxes, his -- repairs on his
2 house and a lot of personal details about his
3 life and his actions is one example.
4 Q Some of the details about his life
5 concerned whether or not he had ever been
6 arrested?
7 A No.
8 Q Did it concern whether he had ever
9 had a problem with the law?
10 A No.
11 Q What did it concern, generically,
12 based on what's publicly known?
13 A I think I just told you.
14 Q What was the concern with Secretary
15 Aspin?
16 MR. QUINLIVAN: We are going to
17 object to this. We're not going to go into
18 what Secretary's Aspin's background was.
19 MR. KLAYMAN: I'm talking about
20 public information, what he knew at the time
21 is public.
22 MR. QUINLIVAN: It's not anywhere
162
1 near being within the scope of the judge's
2 guidance.
3 MR. KLAYMAN: Oh, it is and it
4 deals with the whole course of conduct here.
5 BY MR. KLAYMAN:
6 Q Please respond.
7 MR. QUINLIVAN: No, we're going to
8 direct the witness not to respond.
9 MR. KLAYMAN: Certify it.
10 BY MR. KLAYMAN:
11 Q Other than Secretary Aspin, any
12 other instances?
13 A I have released -- I have dealt
14 with the release of information. That's as
15 far as I want to go.
16 Q On how many occasions up to Linda
17 Tripp?
18 A I can't --
19 Q Roughly speaking.
20 A I don't know.
21 Q Hundreds of occasions, correct?
22 A No.
163
1 Q Tens of occasions?
2 A Tens of occasions would be closer
3 to accurate.
4 Q Were you ever accused of violating
5 the Privacy Act up to the Linda Tripp
6 controversy?
7 A No.
8 Q Were you ever investigated for
9 violating the Privacy Act up to the Linda
10 Tripp controversy?
11 A No.
12 Q Up to the point of the Linda Tripp
13 controversy you were confident that you had
14 never released Privacy Act covered material,
15 correct?
16 A Up to the time of the Linda Tripp I
17 have never had a -- any accusation or problem
18 with any information that I've released.
19 Q But you yourself were confident
20 that you hadn't released some information
21 improperly under the Privacy Act, correct?
22 A Are you talking about prior to or
164
1 including?
2 Q Prior to.
3 A Yes.
4 Q Generically speaking, what type of
5 information had you released that wasn't
6 covered by the Privacy Act?
7 A Generically speaking, when an
8 individual -- when an individual is involved
9 in some action that makes that individual
10 more newsworthy, we tend to be -- tend to
11 release a little more information than you
12 would on somebody who is lower ranking.
13 Q How is that determination made?
14 Are there any guidelines for it?
15 A Not that I'm aware of.
16 Q When you say we, who is we?
17 A In public affairs.
18 Q Who in public affairs makes that
19 determination besides yourself?
20 A Well, I think that it's made on an
21 individual basis. You know, we try to
22 respect the privacy, but there are also
165
1 public interest concerns. So I don't think
2 there is a guideline. I'm not aware of a
3 guideline.
4 Q So is this subjective
5 determination?
6 A To an extent.
7 Q In making that determination does
8 anyone in public affairs consult with the
9 Privacy Act? Has that ever occurred?
10 A I'm sure it does.
11 Q Do you know if that ever happened?
12 A Are you asking --
13 Q Up to the point of Linda Tripp?
14 A I am sure that as -- that we
15 frequently refer to general counsel on
16 questions when they come up.
17 Q But you can't tell me a specific
18 instance today, can you?
19 A No, because I haven't been involved
20 in it. But it does occur.
21 Q Before releasing the information on
22 Linda Tripp did you consult with counsel?
166
1 MR. QUINLIVAN: Okay.
2 BY MR. KLAYMAN:
3 Q You can respond.
4 MR. QUINLIVAN: You can respond.
5 THE WITNESS: No, I did not.
6 BY MR. KLAYMAN:
7 Q Did you consult with anyone?
8 A Yes.
9 Q Who did you consult with?
10 A I consulted with my boss,
11 Mr. Bacon.
12 Q Anyone else?
13 A Certainly we, in obtaining the
14 records, dealt with the -- some other people
15 and they knew what the -- what I was working
16 towards, so -- but I would not call those
17 consultations.
18 Q Who were those other people that
19 the records were obtained from?
20 A David Cook, who is the Director of
21 Administration and Management for the
22 Washington Headquarter Services.
167
1 Q Where is he located?
2 A In the Pentagon.
3 Q Who else?
4 A Mr. Steve O'Toole, who is the
5 director -- I'm want sure what his title is,
6 but he had -- he was in charge of some of the
7 security records.
8 Q What office does he work in?
9 A He works in the Pentagon. He works
10 for DOC Cook or David Cook.
11 Q Is he located in Washington, D.C.,
12 at the Pentagon?
13 A Yes, he is.
14 Q Anyone else?
15 A At the Defense Security Service,
16 and I can't remember his name, Les. Les
17 somebody. He was the one who had the actual
18 security form itself.
19 Q Where is that office located?
20 A I believe the DSS is in the
21 Pentagon also, but I don't know where that
22 is.
168
1 Q Anyone else?
2 A No.
3 Q Was there any contact with
4 Department of Defense personnel in Baltimore?
5 A No, not from us, not from me.
6 Q Was any of the documentation that
7 was ultimately obtained procured from
8 Baltimore?
9 A Not that I'm aware of. Not that
10 I'm aware of.
11 Q Let's back up here. Do you have to
12 seek someone's approval before you release
13 information to the media in the ordinary
14 course of your duties?
15 A No.
16 Q In the case of Linda Tripp, before
17 that information was released to the media,
18 did you seek anyone's approval?
19 A Just my boss'.
20 Q Mr. Bacon?
21 A (Nodding)
22 Q Answer.
169
1 A Yes.
2 Q So you sought his authorization and
3 you were releasing the information on his
4 authorization?
5 A That's correct.
6 Q Was there anyone else that you have
7 knowledge of inside or outside of the
8 Pentagon that provided authorization to
9 release Ms. Tripp's information to the media?
10 A No.
11 Q Do you know whether Mr. Bacon had
12 talked to anyone inside the Pentagon about
13 releasing the information?
14 A I know he had talked to David Cook
15 also, DOC Cook.
16 Q Anyone else?
17 A Not that I'm aware of.
18 Q Mr. Bacon did talk with people
19 inside the Secretary of Defense's office, did
20 he not, before Mrs. Tripp's information was
21 released?
22 A I don't know who he talked to. I'm
170
1 not aware.
2 Q Did you ever ask?
3 A No. You mean about this incident?
4 No.
5 Q Let's go back to this determination
6 on whether material is Privacy Act or not and
7 then we'll come back to this line of
8 questioning.
9 Are there any written guidelines
10 inside the office to determine whether
11 information is privacy material or not?
12 A No.
13 Q Are there any known oral guidelines
14 to make that determination?
15 A Not that I'm aware of, not since
16 I've been there.
17 Q Were there any memoranda created at
18 the time that Linda Tripp's information was
19 released about why it was being released?
20 A I prepared public affairs guidance
21 that -- well, that I had released the
22 information itself so that the other public
171
1 affairs officers would know what had been
2 released.
3 Q But was there any analysis written
4 down as to why Tripp's information was being
5 released?
6 A Not outside of public affairs
7 guidance that I'm aware of that I can
8 remember.
9 Q Not outside of public affairs?
10 A Guidance.
11 Q Guidance. What is public affairs
12 guidance?
13 A That's what we prepare to answer
14 questions should media respond to their or
15 ask a question.
16 Q That was prepared specifically with
17 regard to Ms. Tripp?
18 A Yes.
19 Q Has that document been produced
20 here today?
21 A Yes.
22 Q Which document is that?
172
1 MR. QUINLIVAN: Can I just ask
2 counsel when you were planning on taking a
3 lunch break?
4 MR. KLAYMAN: I thought we would
5 take a lunch break in about a half hour and
6 there is a hearing in front of the court
7 at 2:30.
8 MS. WEISMANN: There is?
9 MR. KLAYMAN: Yeah.
10 THE WITNESS: Document 39 --
11 MS. WEISMANN: Well, then I think
12 if we're going to have a hearing in front of
13 the court, we need some time to get some
14 lunch before.
15 MR. KLAYMAN: Well, that's what I'm
16 saying. Providing some time, that's 45
17 minutes.
18 MS. WEISMANN: We have to get down
19 to the courthouse, so why don't we take a
20 break at 1:30.
21 MR. KLAYMAN: How about 1:35. Is
22 that all right?
173
1 MS. WEISMANN: Fine.
2 MR. KLAYMAN: Fine.
3 THE WITNESS: Document 39, RTQ is
4 response to query. You asked me if there was
5 a document.
6 BY MR. KLAYMAN:
7 Q When was this prepared?
8 A That was prepared the day that I
9 talked to Ms. Mayer and I -- so what was
10 that? That was the 13th or 14th. It was the
11 Friday, whatever date that was.
12 Q Do you know if anyone in the
13 Pentagon has ever been disciplined for
14 releasing Privacy Act information?
15 A I don't know.
16 Q Did there come a point in time when
17 you were requested by anyone to provide
18 information about Ms. Tripp?
19 A I'm sorry. That's so broad I don't
20 know how to --
21 Q Did there come a point in time when
22 you were requested to provide information
174
1 about Ms. Tripp's prior history before
2 joining the Pentagon?
3 A You mean -- let me just see if I
4 understand your question. Did we have any
5 occasion to release information about her
6 about the time before she came to the
7 Pentagon?
8 Q Right. Were you asked to provide
9 information about her history before she came
10 to the Pentagon? Was there a point in time
11 when that occurred?
12 A Our office had. I had not. But we
13 certainly received a lot of questions about
14 it, about her past before she came to the
15 Pentagon, yes.
16 Q Who made those inquiries?
17 A I'd say no fewer than 40 or 50
18 members of the media.
19 Q Were those requests made to you?
20 A No.
21 Q Who were they made to?
22 A To the director for defense
175
1 information.
2 Q Who is that?
3 A That's the directorate who is
4 normally charged with responding to media
5 questions.
6 Q Who is that person?
7 A It's about 30 people.
8 Q Who is the supervisor of that group
9 of 30 people?
10 A Colonel Richard Bridges.
11 Q Who is the second in command?
12 A Brian Whitman.
13 Q Who is the third in command?
14 A I don't think that they have a
15 chain of command beyond that.
16 Q Other than those two individuals,
17 do you know if there are others who work in
18 that office who received requests from the
19 media about Ms. Tripp?
20 A Certainly Ken Bacon did, certainly
21 I did, phone calls came in to the front
22 office. If you can picture it, on
176
1 January 21st the phones did not stop ringing
2 anywhere in public affairs for the entire
3 day, for the entire week afterwards.
4 Q Well, how did you find out that
5 these request were being made to this other
6 office that you just identified?
7 A In staff meetings that -- we would
8 talk about numbers of queries. We also
9 prepared what you saw here in document
10 number 30. This is the questions that had
11 been asked and how we respond to them.
12 Q Who was present at the staff
13 meetings?
14 A I can't -- if anything came up at
15 the morning meetings, then all of the
16 directors -- most of the directors would have
17 been there.
18 Q Who were the directors at that
19 time?
20 A You want all the directors who
21 would have been there?
22 Q Who were there at the staff
177
1 meetings when the Monica Lewinsky/Linda Tripp
2 matter broke.
3 A Well, you see, I can't tell you
4 that because I can't tell you specifically
5 which meetings -- you know, we have a staff
6 meeting every morning. I can't tell you
7 which meetings we discussed it and which ones
8 we don't. I just don't have that memory.
9 Q Who in the ordinary course of what
10 goes on in that office would likely have been
11 present at those meetings after this
12 controversy became known?
13 A It would have been Mr. Bacon, it
14 would have been myself, Mr. Wilson, Captain
15 Doubleday, Ms. Pursell, Mr. Whitman,
16 Lieutenant Colonel Scott and some of the
17 military assistants.
18 Q Who were they?
19 A They rotate, so I don't know which
20 ones would have been in there.
21 Q Who made have been in there?
22 A Commander Grabiel, Colonel Vega and
178
1 at that time it would have been Lieutenant
2 Colonel Boltz.
3 Q B-o-l-t-z?
4 A Yes.
5 Q Was there a White House liaison at
6 the Pentagon present during these meetings?
7 A Never.
8 Q Were there inquiries being received
9 by you or anyone else from the Pentagon from
10 the White House during this period for
11 information?
12 A I am not aware of any request from
13 the White House for any information.
14 Q Any contact concerning Linda Tripp
15 during this period from the White House?
16 A Not that I'm aware of, no.
17 Q You can't remember?
18 A No, I'm saying not that I'm aware
19 of.
20 Q You don't know whether or not that
21 contact was made with people other than
22 yourself?
179
1 A That's correct.
2 Q You don't know whether it was made
3 with Colonel Bacon. Do you?
4 A Mr. Bacon?
5 Q Mr. Bacon.
6 A No, I do not know that.
7 Q What was Mr. Wilson's job title?
8 A He was Deputy Assistant, Secretary
9 of Defense.
10 Q What were his duties and
11 responsibilities at the time?
12 A He was in Linda Tripp's direct
13 supervisory chain.
14 Q Besides being in the supervisory
15 chain what were his duties and
16 responsibilities?
17 A He did community relations, press
18 events for the Secretary and Deputy Secretary
19 of Defense and outreach programs.
20 Q During these meetings that occurred
21 after the Tripp matter broke, what was
22 discussed, generally, during these meetings?
180
1 What can you remember was discussed? I'm not
2 asking you any specific meetings, just
3 generally.
4 A In general we discussed the press
5 coverage of the day and where it was.
6 Q The press coverage with regard to
7 Lewinsky and Tripp?
8 A Correct.
9 Q What else was discussed?
10 A That was the purpose of the meeting
11 was to determine where the press was on a
12 given day.
13 Q Well, did you also discuss what the
14 response of the Pentagon would be to media
15 inquiries about this controversy?
16 A Sometimes.
17 Q Was there a position that was
18 decided upon as to what that response would
19 be?
20 A On major issues we had certain
21 messages that were developed, as you can see,
22 in the document here.
181
1 Q Well, I'm just asking you right now
2 what was the message that was developed with
3 regard to Linda Tripp and Monica Lewinsky,
4 the controversy?
5 A Most of the message was that --
6 that these are allegations being handled by
7 the office of Independent Counsel and it
8 would be inappropriate for us to comment on
9 them.
10 Q It would be inappropriate for you
11 to provide any information relating to this
12 controversy, correct?
13 A To the controversy, but not to
14 specific information about their employment
15 or things that in the Pentagon.
16 Q Did you want to add something more?
17 A No.
18 Q So it was decided that at those
19 meetings that you and others could release
20 information specifically about the
21 individuals involved, Ms. Tripp or
22 Ms. Lewinsky?
182
1 A The meetings were never in that
2 degree of specificity. We never discussed in
3 that forum how to answer a specific what is
4 to be released or what's not to be released.
5 Q Was there any discussion as to
6 whether or not information could be released
7 at all during those meetings?
8 A The only general guidance that we
9 put out was that we would not speculate that
10 the information that we put out would be
11 factual.
12 Q What type of information was it
13 decided that could be put out?
14 A We did not talk in that degree, so
15 we didn't talk about that.
16 Q Was it decided that only certain
17 individuals could put out information about
18 the controversy and the individuals involved?
19 A After awhile, after the initial
20 media went -- interest died down we talked
21 about limiting it to a few people. I don't
22 think we ever did totally limit it though.
183
1 Q When did that occur, roughly
2 speaking?
3 A It seems like a couple of weeks,
4 maybe even -- about a couple of weeks after
5 the controversy started, after the
6 January 21st release.
7 Q Who made the decision as to who
8 could release information?
9 A It was not a meeting where somebody
10 made a decision. It was a general agreement
11 type meeting.
12 Q Who participated in that meeting?
13 A Mr. Bacon, myself, Mr. Wilson,
14 Colonel Bridges, probably Brian Whitman,
15 probably Captain Doubleday. I can't
16 remember.
17 Q What date was that?
18 A I do not remember.
19 Q Was it before or after you received
20 the call from Jane Mayer, the first call?
21 A I believe it was before.
22 Q Who was decided could release
184
1 information?
2 A We, generally, decided that the
3 people sitting around that table would be the
4 ones that should be doing it.
5 Q You discussed specifically what
6 information could be released and what could
7 not?
8 A No.
9 Q You are aware that Linda Tripp had
10 a top secret security clearance, correct?
11 A Oh, yes.
12 Q To be able to obtain that top
13 secret security clearance she would have had
14 to have gone through a background security
15 investigation, correct?
16 A Yes.
17 Q That background security
18 investigation, you are aware, is conducted by
19 the Federal Bureau of Investigation, correct?
20 A Actually my understanding is that
21 there are levels of investigations, some of
22 them done by Defense Investigative Service.
185
1 So I'm not sure who does what levels of
2 investigation.
3 Q But you are aware that the FBI does
4 do background security investigations,
5 correct?
6 A Yes.
7 Q Yes?
8 A Yes.
9 Q In fact, you've had one conducted
10 by the FBI, at least one haven't you?
11 A Yes.
12 Q Have you had more than one?
13 A Well, I would guess, yes, over
14 my 30-year career but, again, nobody has ever
15 told me that the FBI did it. I've never
16 been -- I don't recall ever being interviewed
17 by an FBI agent, frankly.
18 Q You are aware that the information
19 contained in those background security
20 investigations are classified, that
21 information is classified?
22 A No.
186
1 Q Secret?
2 A I'm sorry.
3 Q Not to be released to the public?
4 A There is no classification on any
5 of those forms that I am aware of.
6 Q You're aware that the information
7 that is gathered by the FBI or whatever
8 investigative service is not public
9 information, correct?
10 A Normally that's true.
11 Q You are aware that when you start
12 to work at the Pentagon, you have to fill out
13 certain forms?
14 A Yes.
15 Q What forms specifically did
16 Ms. Tripp have to fill out before she began
17 working at the Pentagon?
18 A I don't know. I mean I wasn't
19 there. She -- I mean I had to fill out a 171,
20 an employment record, any background
21 information.
22 Q Form 398?
187
1 A 398, yes.
2 Q In fact, the document you made
3 reference to, number 39, the documents
4 produced today, makes reference to Form 398
5 that Ms. Tripp filled out, correct?
6 A Right.
7 Q You were aware at the time of this
8 meting that the information contained on
9 Form 398 was not public information?
10 A Which meeting are you referring to?
11 Q The meeting you just described
12 where it was decided that information could
13 be released about the individuals involved in
14 the Lewinsky/Tripp controversy.
15 A The meeting that I just described
16 did not talk about that. The meeting that I
17 described just dealt with a general who was
18 going to be releasing information on it.
19 Q But up to that point in time you
20 were aware that the information contained on
21 Form 398 was not public information?
22 A That it is not generally made
188
1 public, yes.
2 Q You are aware that information
3 contained in FBI files is not public
4 information? You were aware of that up to
5 that time?
6 A Actually I have no knowledge of FBI
7 files. I should add also that the 398 is not
8 an FBI file. That's why I don't have any
9 knowledge of the FBI stuff.
10 Q You just stated that you were aware
11 that the information contained in Form 398
12 was not generally or normally made public,
13 correct?
14 A I said generally, yes.
15 Q Up to the point in time of the
16 meeting you just described did you receive
17 any guidance from any source as to what could
18 be made public of information on Form 398?
19 A Not that I remember, no.
20 Q So you had no basis to believe that
21 any information contained on 398 could be
22 made public?
189
1 A That's not my experience. My
2 experience, again, is that there is a
3 judgment call to be made about the public's
4 right -- public interest versus the privacy
5 and certainly privacy has to be considered
6 and the general inclination as towards
7 privacy, but it is not absolutely.
8 Q Are you aware of any guidelines
9 written or oral at the Department of Defense
10 with regard to what information can and can't
11 be released to the public on Form 398?
12 A No.
13 Q Up to the point of releasing
14 information from Ms. Tripp's Form 398 had you
15 ever released information from someone else's
16 Form 398?
17 A I had never been asked; however,
18 the next day I released the same information
19 on Mr. Bacon.
20 Q Did you get specific authorization
21 from Mr. Bacon to do that? You did, didn't
22 you?
190
1 A I did after the fact. I did -- I
2 was able to obtain his 398 through the same
3 source as this without his permission.
4 Q When did you get the authorization
5 after the fact?
6 A After I had received the 398 in my
7 hand.
8 Q When you received the 398, you then
9 asked for authorization from Mr. Bacon to
10 release some information from him?
11 A That's correct.
12 Q But up to that point in time you
13 hadn't released any information?
14 A I had never had a question on it.
15 Q So before you released it to the
16 public you got Mr. Bacon's approval?
17 A Yes.
18 Q You didn't do that with Ms. Tripp,
19 did you?
20 A That's correct.
21 Q You did not?
22 A That's correct.
191
1 Q So the answer to my question is,
2 other than Ms. Tripp and Mr. Bacon you had
3 never released information from a Form 398
4 before?
5 A I had never been asked to release
6 information, so I never released information.
7 Q So the answer is no, you had not
8 released information from the Form 398 except
9 for Ms. Tripp and Mr. Bacon?
10 A Yes.
11 Q Don't know of anyone else at the
12 Department of Defense ever having released
13 information from a Form 398, do you?
14 A I'm not personally aware of.
15 Q Mr. Bacon's authorization to
16 release information from his Form 398 was in
17 writing?
18 A No.
19 Q How was it made?
20 A Orally.
21 Q Where did you receive that
22 authorization? Were you in a meeting?
192
1 A No, I don't remember. I mean I was
2 not in the meeting. I think it was just his
3 office is right across from mine.
4 Q At the time that you released
5 information on the 398 with regard to
6 Ms. Tripp you were aware that that was
7 Privacy Act information, correct?
8 A No, the fact is that it was one in
9 a series of dozens of phone calls and it did
10 not occur to me at the time that I was
11 dealing with Privacy Act information. That's
12 what happened.
13 Q But your previous testimony is that
14 you had been trained on the Privacy Act
15 before you released it?
16 A I had received training years
17 before. At the time of the release the
18 question of whether it was privacy or not did
19 not enter any of the minds of myself or the
20 people who I dealt with.
21 Q You have previously seen a copy of
22 the Privacy Act, have you not?
193
1 A I'm sure I have.
2 Q You saw it before you released
3 Ms. Tripp's information?
4 A Years. I do not have a copy of it
5 on my desk or anything like that, no.
6 Q I show you what I'll ask the court
7 reporter to mark as Exhibit 7.
8 MR. QUINLIVAN: Counsel maybe this
9 will be a good time --
10 MR. KLAYMAN: I just want to ask
11 one or two more questions. Ms. Weismann,
12 please do not interrupt. You are not counsel
13 of record in this deposition.
14 MS. WEISMANN: I am counsel of
15 record, Mr. Klayman.
16 MR. KLAYMAN: Not at this
17 deposition.
18 MS. WEISMANN: We're going off the
19 record now. If you want to go forward with
20 the hearing at 2:30, the witness and the rest
21 of us are entitled to get lunch first. If
22 you want to change the time of that hearing,
194
1 we can go forward for a few more minutes.
2 MR. KLAYMAN: Ms. Weismann, that
3 attitude is not necessary. I just have two
4 questions left.
5 MS. WEISMANN: It's not a question
6 of attitude.
7 MR. KLAYMAN: You have a
8 significant attitude.
9 MS. WEISMANN: It's 1:35. We
10 agreed in advance that we would take a lunch
11 at 1:35.
12 MR. KLAYMAN: It's not 1:35 on my
13 watch and I want to ask one or two questions
14 more. Are you saying I can't?
15 MS. WEISMANN: Does the
16 videographer, do you have time on your
17 videographer, it can record the time?
18 VIDEO TECHNICIAN: Yes.
19 MS. WEISMANN: What time does it
20 reflect right now?
21 VIDEO TECHNICIAN: I have 1:36.
22 MS. WEISMANN: Thank you.
195
1 MR. KLAYMAN: You're leaving,
2 Ms. Weismann?
3 MS. WEISMANN: We agreed in advance
4 that we would stop at 1:35 to get a lunch
5 break. If you want to agree that we'll go
6 later before the court, then we will be
7 willing to go for a few minutes more, but if
8 you still insist that we're going to go
9 forward at 2:30, yes, we are stopping as we
10 agreed in advance the time you --
11 MR. KLAYMAN: Let's let record
12 reflect that you're stopping this
13 involuntary --
14 MS. WEISMANN: You picked the time,
15 Mr. Klayman.
16 MR. KLAYMAN: -- and that you have
17 interrupted the representation by
18 Mr. Quinlivan of this witness. This is
19 inappropriate professional conduct.
20 MS. WEISMANN: We'll see you in
21 court at 2:30.
22 VIDEO TECHNICIAN: We're going off
196
1 video record at 1:37.
2 (Discussion off the record)
3 VIDEO TECHNICIAN: We're back on
4 video record at 1:37.
5 MR. KLAYMAN: I would ask that the
6 court reporter be present in Courtroom 21 for
7 the hearing at 2:30 and bring any
8 transcription that you have.
9 VIDEO TECHNICIAN: We're going off
10 video record at 1:38.
11 (Whereupon, at 1:38 p.m., a
12 luncheon recess was taken.)
13 * * * * *