198
1 UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
2
------------------------------x
3 CARA LESLIE ALEXANDER et al., :
:
4 Plaintiffs, :
:
5 :
v. : Civil Action
6 : Nos. 96-2123
FEDERAL BUREAU OF : 97-1288 (RCL)
7 INVESTIGATION et al., :
:
8 Defendants. : Volume 2
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9
Washington, D.C.
10
Thursday, April 30, 1998
11
12 Continued Deposition of
13 CLIFFORD H. BERNATH
14 a witness, called for examination by counsel
15 for the Plaintiffs, pursuant to notice and
16 agreement of counsel, continuing at
17 approximately 4:37 a.m., at Judicial Watch,
18 Inc., 501 School Street, S.W., Washington,
19 D.C., before Shari R. Broussard, notary
20 public in and for the District of Columbia,
21 when were present on behalf of the respective
22 parties:
199
1 APPEARANCES:
2 On behalf of Plaintiffs:
3 LARRY KLAYMAN, ESQUIRE
DON BOSTION, ESQUIRE
4 Judicial Watch, Inc.
501 School Street, S.W., Suite 725
5 Washington, D.C. 20024
(202) 593-8422
6
7 On behalf of the White House:
8 SALLY PATRICIA PAXTON, ESQUIRE
Special Associate Counsel to the President
9 The White House
1600 Pennsylvania Avenue, N.W.
10 Washington, D.C. 20500
(202) 456-5079
11
12 On behalf of the First Lady:
13 MAX STIER, ESQUIRE
Williams & Connolly
14 725 Twelfth Street, N.W.
Washington, D.C. 20005
15 (202) 434-5803
16
On behalf of the Executive Office of the
17 President and the FBI:
18 ELIZABETH J. SHAPIRO, ESQUIRE
U.S. Department of Justice
19 Civil Division
Federal Programs Branch, Room 988
20 901 E Street, N.W.
Washington, D.C. 20530
21 (202) 514-5302
22
200
1 APPEARANCES (CONT'D):
2 On behalf of the Department of Defense:
3 BRAD WIEGMANN, ESQUIRE
Office of General Counsel
4 Department of Defense
1600 Defense Pentagon
5 Washington, D.C. 20310
(703) 695-3392
6
MARIANE FILICE, ESQUIRE
7 American Forces Information Service
601 N. Fairfax Street
8 Alexandria, Virginia 22314-2007
(703) 428-1204
9
10 On behalf of the Witness:
11 MARK T. QUINLIVAN, ESQUIRE
ANNE L. WEISMANN, ESQUIRE
12 U.S. Department of Justice
Federal Programs Branch
13 901 E Street, N.W.
Washington, D.C. 20530
14 (202) 514-3346
15 ALSO PRESENT:
16 Sylvanus Holley
Tom Fitton
17
18
19 * * * * *
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22
201
1 C O N T E N T S
2 EXAMINATION BY: PAGE
3 Counsel for Plaintiffs 203
4 INSTRUCTIONS TO CERTIFY:
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15 275 19 315 19
16 277 19 322 10
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202
1 INSTRUCTIONS TO CERTIFY (CONT'D):
2 Page No. Line No. Page No. Line No.
3 352 9 367 1
4 361 4 378 10
5
6 BERNATH DEPOSITON EXHIBITS: PAGE
7 No. 7 - Jane Mayer Article 267
8 No. 8 - Article, The Washingtin Times 291
9
10
11
12 * * * * *
13
14
15
16
17
18
19
20
21
22
203
1 P R O C E E D I N G S
2 Whereupon,
3 CLIFFORD H. BERNATH
4 was recalled as a witness, and having been
5 previously duly sworn, was examined and
6 testified further as follows:
7 VIDEOGRAPHER: We're back on video
8 record at 4:27 p.m.
9 EXAMINATION BY COUNSEL FOR PLAINTIFFS
10 CONTINUED
11 BY MR. KLAYMAN:
12 Q I'll show you what has been marked
13 as Exhibit 6. Exhibit 6 is a copy of the
14 Privacy Act and I ask you to turn to page
15 four of six. This is the Freedom of
16 Information Act within the context of the
17 Privacy Act and it states at Subsection B:
18 "This section does not apply to
19 matters that are," reading down to subsection
20 six, "Personnel and medical files and similar
21 files, the disclosure of which would
22 constitute a clearly unwarranted invasion of
204
1 personal privacy."
2 Now, Mr. Bernath, you were aware,
3 were you not, in the course of your training
4 on the Privacy Act that the Freedom of
5 Information Act did not apply to personnel
6 and medical files, correct, your release of
7 personnel and medical files?
8 A Mr. Klayman, let me -- let me
9 answer the unasked question first.
10 Q Well, no I, get to ask the
11 questions.
12 A I get to provide the answers.
13 Q Well, no, you don't get to provide
14 the answers without a question, Mr. Bernath.
15 You answer this question.
16 A Then, no, I have not read this
17 document and -- and I'm not familiar with the
18 exact terms of this document.
19 Q Are you telling me that in the
20 course of your training at the Department of
21 Defense that it was your understanding that
22 you were permitted to release personnel and
205
1 medical files under the Freedom of
2 Information Act?
3 A I'm telling you that I'm not an
4 expert in the Freedom of Information Act, and
5 that I do not have this memorized, and I do
6 not know it paragraph by paragraph.
7 Q I'm asking you for your
8 understanding. I'm not asking for a legal
9 opinion.
10 MR. QUINLIVAN: I'm going to object
11 to this question. The witness has already
12 testified his answer provides a full and
13 complete answer to this entire line of
14 questioning.
15 BY MR. KLAYMAN:
16 Q I'm going to keep asking the
17 question. The answer was not responsive to
18 my question. My question was, Mr. Bernath,
19 whether or not it was your understanding,
20 based on training at the Department of
21 Defense, that you could release personnel and
22 medical files to the public?
206
1 MR. QUINLIVAN: I'm going to object
2 to this question. Mr. Bernath's knowledge of
3 the Privacy Act in the context of this
4 litigation does not have anything to do with
5 the matter which is the subject of this suit.
6 The release of information and the context of
7 which that information was released is
8 relevant, but his specific knowledge as to
9 the legal obligations of the Privacy Act is
10 not at issue in the context of this.
11 MR. KLAYMAN: I took the Privacy
12 Act out of the question. I asked simply
13 whether or not, based on your training at the
14 Department of Defense, before you released
15 the Tripp information, Form 398, whether you
16 knew based on that training, that you were
17 not to release personnel and medical files of
18 employees of the Department of Defense.
19 MR. QUINLIVAN: I'm going to object
20 as asked and answered.
21 BY MR. KLAYMAN:
22 Q You can respond.
207
1 A My understanding is that nothing in
2 this act -- nothing in the Privacy Act,
3 nothing in the Freedom of Information Act is
4 sacrocyte, nothing is absolute. There's a
5 body of law around these.
6 In terms of personnel records, we
7 released Ms. Tripp's 171, her personnel
8 information form, the -- the same form that
9 is the equivalent of the resume for civilian
10 employees. We have released her --
11 MR. KLAYMAN: Let me stop. Who did
12 you release that to?
13 MS. WEISMANN: No.
14 MR. KLAYMAN: You can't stop him in
15 the middle of a question. You cannot. I ask
16 you, Ms. Weismann, to let one counsel handle
17 this. You're not to butt in. Certify this.
18 MR. QUINLIVAN: Our objection,
19 Mr. Bernath is not authorized to respond to
20 information outside of the release of
21 information that is the issue of and the
22 subject of the judge's order. He is not
208
1 authorized to speak to the release of other
2 information and if you want to go into those
3 kind of questions, then you can file a 2(e)
4 request with the Department of Defense under
5 the appropriate regulations.
6 MR. KLAYMAN: Is a Form 171 covered
7 by the Privacy Act, Mr. Bernath? Based on
8 your training and knowledge?
9 MR. QUINLIVAN: Excuse me, counsel.
10 When I'm making an objection, I would
11 appreciate it if you would not speak over my
12 objection.
13 MR. KLAYMAN: No, in fact, you're
14 speaking over my question, sir.
15 MR. QUINLIVAN: No, in fact,
16 counsel, I was making an objection and you
17 were speaking over it. This entire line is
18 not appropriate. He is not authorized to
19 testify as to this matter.
20 MR. KLAYMAN: We just went over
21 with the Court that the Court did not intend
22 any restriction in its order.
209
1 MR. QUINLIVAN: That is not what
2 the Court said. Our understanding of what
3 the Court said was that because you had not
4 complied with the (2)(e) regulations, which
5 are binding on all other parties which seek
6 the testimony of governmental employees, we
7 had limited the scope of Mr. Bernath's
8 testimony to that which was provided for in
9 the Court's order.
10 If you wish to seek testimony as to
11 other matters, you can follow the regulations
12 set forth by the Department of Defense to
13 seek that information. We can then visit
14 that information and respond to your
15 accordingly.
16 MR. KLAYMAN: Is it your position
17 that the Court said that its order was
18 limited to a certain area? That's what I'm
19 hearing you say.
20 MR. QUINLIVAN: I have stated my
21 objection.
22 MR. KLAYMAN: I want to understand
210
1 what it is because you're obstructing this
2 deposition.
3 MR. QUINLIVAN: I have stated my
4 objection. I'm not going to engage in legal
5 colloquy.
6 MR. KLAYMAN: Certify it.
7 You're on notice that we will move
8 for sanctions for each and every time we do
9 this and we're going to move against you
10 personally.
11 MR. QUINLIVAN: Mr. Klayman,
12 attempts at personal intimidation are not
13 appropriate.
14 MR. KLAYMAN: It's not
15 intimidation.
16 MR. QUINLIVAN: Excuse me.
17 MR. KLAYMAN: I'm putting you on
18 notice because you're obstructing this
19 deposition. The judge made no such ruling.
20 He made no such ruling.
21 MR. QUINLIVAN: Mr. Klayman, the
22 judge has made --
211
1 MR. KLAYMAN: I want to know what
2 your basis is of saying that he did.
3 MR. QUINLIVAN: Mr. Klayman, I
4 stated it once and I will state it again, I'm
5 not going to engage in a legal colloquy with
6 you. The judge has made quite clear in his
7 orders that all counsel on all sides are to
8 conduct themselves in a civil and
9 professional manner and I would suggest that
10 you not attempt to intimidate the other side
11 in any way.
12 MR. KLAYMAN: I'm putting you on
13 notice, it's not an intimidation, for each
14 separate objection where you seek to
15 interpret this court's order, the scope of
16 it, you're on notice we will seek sanctions
17 against you personally and I ask Ms. Weismann
18 not to interfere in the objections. We have
19 one counsel here. The Court is on record
20 with regard to how objections are to be
21 handled.
22 BY MR. KLAYMAN:
212
1 Q I'm not asking you based on a legal
2 conclusion, Mr. Bernath. I'm asking you
3 whether or not you were trained at the
4 Department of Defense as to whether or not
5 you could release personnel and medical files
6 to the public.
7 MR. QUINLIVAN: The same objection
8 stands.
9 BY MR. KLAYMAN:
10 Q You can respond?
11 MR. QUINLIVAN: No. The witness
12 has testified on repeated occasions as to
13 what his understanding of the Privacy Act and
14 what his training was under these
15 circumstances. Specific questions as to his
16 knowledge of the Privacy Act are not
17 appropriate.
18 BY MR. KLAYMAN:
19 Q I didn't ask about the Privacy Act.
20 I asked whether it was your general
21 understanding, based upon the training you've
22 received from whatever source of the
213
1 Department of Defense as to whether you were
2 empowered to release personnel and medical
3 files to the public of employees.
4 A I believe I answered the question.
5 Q Are you refusing to answer?
6 A I already answered. I'm refusing
7 to reanswer.
8 MR. KLAYMAN: Certify it.
9 THE WITNESS: There is an answer.
10 May I request that they reread the answer?
11 MR. KLAYMAN: Not if you're
12 refusing to answer. What's the point?
13 MR. QUINLIVAN: Yes.
14 BY MR. KLAYMAN:
15 Q Are you refusing to answer?
16 A You asked the question. I answered
17 the question.
18 Q I'll ask it again. I'll withdraw
19 the question.
20 A We can --
21 Q I'll withdraw the question. I want
22 to move the thing along.
214
1 Based on your training at the
2 Department of Defense, was it your
3 understanding that you were empowered to
4 release personnel and medical files of
5 Department of Defense employees?
6 MR. QUINLIVAN: Before the witness
7 answers a moment, please. We will allow the
8 witness to answer this question. We are
9 stating our objection we think this is far
10 afield from what was the subject of the
11 Court's order and far afield from that which
12 was authorized by the Department that the
13 witness can testify to. We'll allow the
14 witness to answer this question.
15 BY MR. KLAYMAN:
16 Q Please answer it.
17 A My understanding is that -- that
18 personnel -- first of all, this is the
19 Freedom of Information Act that says that you
20 don't have to release this information. This
21 is not the Privacy Act.
22 My information is that -- my
215
1 understanding is that some information --
2 that not any -- there's no one class of
3 information that is always, always exempt.
4 There is always discussion on what's
5 releasable and what's not releasable. So
6 I -- we do release some personnel
7 information.
8 Q Are you saying that you can release
9 whatever information you deem appropriate
10 with regard to a living employee without
11 getting his or her permission?
12 A That is not what I'm saying. I'm
13 saying there is no body of information that
14 is absolutely protected and so a
15 determination is made in each case.
16 Q Well, what is the normal procedure?
17 What is the usual procedure? If you're going
18 to release information out of a personnel
19 file of an employee, is the procedure in the
20 Department of Defense to get that employee's
21 permission?
22 A Not necessarily.
216
1 Q What's the criteria? What do you
2 mean by not necessarily?
3 A I don't know that there is a --
4 that there is a written policy on this.
5 In -- the norm is that we would consult with
6 counsel and -- and get a reading.
7 Q You didn't consult with counsel
8 with regard to Ms. Tripp, did you?
9 A This was not the norm, that's
10 correct.
11 Q Now, when you say not necessarily,
12 are you saying that there are really no
13 criteria, you can do whatever you want?
14 A That is not what I said.
15 Q Then what are the criteria?
16 A I said the criteria is that when we
17 have a question, we go to the general
18 counsel.
19 Q Let's talk about Ms. Tripp. You
20 released her Form 398, correct?
21 A No, that is incorrect. I --
22 Q What did you release with regard to
217
1 Ms. Tripp?
2 MR. QUINLIVAN: I'm going to object
3 to this question. Without making a
4 determination as to whether or not the
5 release of this information would violate the
6 Privacy Act, we are making a protective
7 objection that this information may be
8 subject to the Privacy Act.
9 BY MR. KLAYMAN:
10 Q What did you release with regard to
11 Ms. Tripp? What did you give Ms. Mayer or
12 anyone else with regard to Ms. Tripp?
13 MR. QUINLIVAN: I'm going to object
14 to this to the extent it asks him to reveal
15 the specific information that was revealed to
16 Ms. Mayer without reserving our right or
17 without taking a position as to whether or
18 not that would be a violation of the Privacy
19 Act.
20 BY MR. KLAYMAN:
21 Q You may respond.
22 MR. QUINLIVAN: No, I've said that
218
1 we're objecting and directing the witness not
2 to respond to the specific information that
3 was released.
4 BY MR. KLAYMAN:
5 Q Generically, what type of
6 information did you release with regard to
7 Ms. Tripp? Not what it actually said, but
8 what type?
9 A Is that okay? Information
10 pertaining to past arrests or convictions.
11 Q Did you release anything in
12 addition to that?
13 A No.
14 Q Did that information come from her
15 Form 398?
16 A Yes.
17 Q Now, what was the criteria, if any,
18 used to decide whether or not to release that
19 information?
20 A I have to put that in the context
21 of the circumstances. This -- this was in
22 the course of the day, in the course of the
219
1 week, in the course of the month, a very
2 small action in our minds.
3 In retrospect, a lot of things are
4 different, but in the course of the day in
5 the course of responding to many questions
6 and doing many other things other than this,
7 this was a fairly routine question in terms
8 of information that had been asked and
9 answered to the media in regards to
10 Ms. Tripp, Ms. Lewinsky and people involved.
11 So this did not, for whatever
12 reason, but that reason is -- has nothing to
13 do with politics, for whatever reason, this
14 did not trigger anybody thinking in terms of
15 this is bad information. This is a person
16 who has -- who has indicated that nothing
17 has -- has happened.
18 Q What do you mean this is a person
19 who's indicated nothing has happened?
20 A Well, now I'm into the --
21 MR. QUINLIVAN: Do you want to
22 confer with counsel?
220
1 BY MR. KLAYMAN:
2 Q What do you mean by a person who
3 indicated nothing has happened?
4 A Excuse me.
5 MR. KLAYMAN: Objection to the
6 extent you're getting any testimony from
7 counsel. I want an unfettered response.
8 Certify it.
9 MR. QUINLIVAN: We're requesting a
10 break.
11 MR. KLAYMAN: Well, we're not
12 granting a break. Walk out, okay, we will
13 move for sanctions.
14 I object to this consultation. The
15 question stems from his own question what he
16 meant.
17 (Witness conferred with counsel)
18 MR. QUINLIVAN: We're going to
19 object to this question to the extent it asks
20 the witness to reveal the specific
21 information regarding Ms. Tripp that was the
22 subject of my earlier objection.
221
1 MR. KLAYMAN: Why was it necessary
2 to consult with the witness while I had a
3 question pending to come to that objection?
4 THE WITNESS: Because I had a
5 question. So the answer is that we felt that
6 there was no negative information released.
7 BY MR. KLAYMAN:
8 Q The fact that she had been arrested
9 before was not negative information?
10 A That was not the question that was
11 asked and that was not the information that
12 was released. We had no -- we -- that was
13 not the question, that was not the answer.
14 Q What was the question that was
15 asked?
16 A The question that was asked was on
17 the security form there and it was --
18 MR. QUINLIVAN: Let me just object
19 and caution the witness that to the extent
20 he's responding to this question he's not to
21 reveal the specific question that is the
22 subject or the specific information that was
222
1 in Ms. Tripp's form.
2 MR. KLAYMAN: Mr. Quinlivan, that
3 is absurd. I never asked that question. I
4 asked what was the question that was asked.
5 MR. QUINLIVAN: I understand.
6 MR. KLAYMAN: You're just
7 obstructing this deposition. We've now taken
8 up 20 minutes with these objections, which
9 are not only unfounded, but they're not even
10 in response to my questions.
11 BY MR. KLAYMAN:
12 Q What was the question that was
13 asked?
14 A The questions that were asked were
15 on the 398 and it concerned how she had
16 marked her -- the answers to the questions
17 had she ever been arrested, had she ever been
18 convicted.
19 Q Who asked the questions?
20 A Ms. Mayer.
21 Q Now, how did Ms. Mayer know to ask
22 questions off of a 398? Do you have
223
1 knowledge as to that?
2 A I have no idea, no knowledge.
3 Q Did she tell you that she had
4 possession of a Form 398 of Ms. Tripp's?
5 A No, she did not.
6 Q If she didn't have the 398, she
7 couldn't have asked the questions, could she?
8 A I don't know how Ms. Mayer got her
9 information. I'm sorry.
10 Q You gave her the 398 form?
11 A I did not give her the 398 form.
12 Q Did Mr. Bacon give her the 398
13 form?
14 A He did not give her the 398 form.
15 Q Did somebody else at the Department
16 of Defense give the 398 form to Ms. Meyer?
17 A I'm not aware of anybody at the
18 Department of Defense giving her any
19 documents.
20 Q You testified earlier that whether
21 or not Ms. Mayer had been arrested you don't
22 consider to be negative information, correct?
224
1 A Are you referring to Ms. Tripp?
2 Q Ms. Tripp. I'm sorry.
3 A That is not what I testified.
4 Q In your opinion, is giving that
5 information that someone has been arrested
6 positive for that person?
7 A Once again, I never gave out any
8 information about whether she was arrested or
9 not. That is not the information that I
10 provided.
11 Q What information did you provide?
12 Generically speaking.
13 A I provided the answers that she
14 provided on that form.
15 Q What answers were they?
16 MR. QUINLIVAN: That is the subject
17 of my earlier objection.
18 MR. KLAYMAN: Is it your position
19 it's okay to give that information to
20 Ms. Jane Mayer, reporter of New Yorker, but
21 he doesn't have to testify about it here
22 today?
225
1 MR. QUINLIVAN: My position is that
2 I'm instructing the witness not to respond to
3 that question. I am not accepting any of
4 your characterizations.
5 MR. KLAYMAN: Well, he's taking the
6 position that the information he provided to
7 Ms. Mayer was not a violation of the Privacy
8 Act, correct? Now, how is it that you're now
9 instructing him not to answer under those
10 circumstances?
11 MR. QUINLIVAN: The objection
12 stands. I'm not going to engage in further
13 colloquy. I've explained the basis of our
14 objection. You have that information.
15 MR. KLAYMAN: Certify it.
16 Is it because you're representing
17 Secretary of Defense Cohen and not this
18 witness? Is that the basis of your
19 objection?
20 MR. QUINLIVAN: I'm not going to
21 respond to that question. I'm not under oath
22 and I am not being deposed.
226
1 MR. KLAYMAN: I'm asking you to
2 give me a proffer so we can then approach the
3 Court.
4 MR. QUINLIVAN: I have given and
5 stated the basis of our objection to you.
6 I've done it on at least two occasions.
7 MR. KLAYMAN: How is that you're
8 representing his interest in instructing him
9 not to answer if he says providing that
10 information didn't violate the Privacy Act?
11 MR. QUINLIVAN: I'm not going to
12 engage in any further colloquy on this
13 subject.
14 MR. KLAYMAN: Certify it.
15 BY MR. KLAYMAN:
16 Q In preparation for this deposition
17 did you meet with any White House counsel,
18 lawyers in the White House?
19 A No.
20 Q Throughout the course of this
21 deposition have you talked to Ms. Paxton
22 about your testimony?
227
1 A No.
2 Q After we broke for lunch did you
3 discuss your testimony this morning with
4 counsel?
5 A No.
6 Q Not one aspect of your testimony?
7 A No.
8 Q Turn to page 39 of Exhibit 4.
9 A I don't have my copies. I left
10 those with the --
11 Q What is the document that appears
12 in number 39?
13 A This is a public affairs guidance
14 concerning questions on the 398.
15 Q Who prepared this document?
16 A I did.
17 Q Did you prepare it before you
18 released the information about Ms. Tripp?
19 A No.
20 Q When did you prepare it?
21 A After.
22 Q How long after?
228
1 A The same day.
2 Q Why did you prepare it?
3 A Because whenever we provide
4 information to the media, we let the rest of
5 the public affairs officers know so that
6 everybody know what's information they can
7 put out.
8 Q Was this sent as an E-mail?
9 A No.
10 Q How was it prepared?
11 A It was prepared on a computer and
12 printed and Xeroxed and given to people.
13 Q Who was it given to?
14 A I don't know the distribution of
15 it. It was given to the people in -- in our
16 press room, the Director for Defense
17 Information, but I do not know who got it
18 specifically.
19 Q It says, "RTQ regarding Tripp's
20 security clearance and charge that she lied
21 on question about being arrested." What does
22 RTQ mean?
229
1 A Response to query. That means if
2 asked, this is the response that we would
3 provide.
4 Q Was this the question that was
5 asked by Mr. Jane Mayer before you provided
6 this document?
7 A This is the -- these are the
8 questions that she referred to, yes.
9 Q I take it she did ask whether
10 Ms. Mayer had lied about being arrested.
11 A No.
12 Q Right, whether Ms. Tripp had lied
13 about being arrested?
14 A No, she had not -- she did not ask
15 that. She asked how Ms. Tripp answered the
16 specific questions. She did not ask if she
17 lied or told the truth.
18 Q When did you first hear from
19 Ms. Mayer?
20 A About 9 o'clock in the
21 morning, 9:30, in that -- in that time frame,
22 on whatever that Friday morning was.
230
1 The 14th or whatever that Friday was.
2 Q Do you want to consult a calendar?
3 A Please.
4 Q Can you give him a calendar?
5 A Can we establish some place what
6 day I talked to her?
7 Q I just want to ask you the question
8 based on the calendar first.
9 A March 13th, Friday.
10 Q Friday the 13th?
11 A (Nodding)
12 Q Did Ms. Mayer call you or did you
13 call her?
14 A She had -- she had called Mr. Bacon
15 the night before and I returned the call that
16 morning.
17 Q How do you know she called
18 Mr. Bacon the night before?
19 A Because she told me.
20 Q When did he tell you that?
21 A The night before.
22 Q Where did she call him? At the
231
1 Pentagon or called him at home?
2 A No, at the Pentagon.
3 Q When did Mr. Bacon advise you that
4 she had called? Was it that night or the
5 following morning?
6 A No, that night. We were both there
7 at about 7:30.
8 Q Were you in Mr. Bacon's office when
9 she called?
10 A No, I was not. No.
11 Q Did he come to see you after she
12 called or did you call him on the phone?
13 A No, I was out of town during the
14 day. I got back and when I got back, I went
15 to his office to check in to see what was
16 going on.
17 Q What did he tell you?
18 A He told me that he had received a
19 call from Jane.
20 Q Jane Mayer from the New Yorker.
21 A Jane Mayer. That she had asked how
22 Ms. Tripp had answered two questions on -- on
232
1 the security form. He told me that she
2 indicated that she may have information that
3 there was -- that Ms. Tripp may have had a
4 problem when she was young and he told me
5 that he had already discussed -- he had
6 discussed the query with DOC Cooke,
7 Mr. Cooke, in the Pentagon.
8 Then he asked me then to call
9 Mr. Cooke in the morning to see if Mr. Cooke
10 had obtained the information and then to
11 follow-up with Ms. Mayer.
12 Q To give Ms. Mayer the information?
13 A Yes.
14 Q So he instructed you to give
15 Ms. Mayer the information?
16 A I think that he -- he asked me to
17 get the information and discuss it with him
18 and then it was later that we determined that
19 that I would call her back.
20 Q But he instructed you to give
21 Ms. Mayer the information once you got it?
22 A Once I -- yes, once I got it he
233
1 asked me to return the call.
2 Q To give her the information?
3 A Yes.
4 Q Now, having worked for the
5 Pentagon, you considered that to be an order,
6 didn't you?
7 A No, not in that respect. Yes, I
8 took it as a -- as something that I should
9 do, but had I disagreed with it, had I had a
10 reason to object to it, I would have done
11 that. I didn't have a reason to object to
12 it.
13 Q You didn't object to it because you
14 were the good soldier?
15 A No, it was because I didn't have
16 any reason to object to it.
17 Q So you agreed with Mr. Bacon's
18 decision to give the information to
19 Ms. Mayer?
20 A Yes.
21 Q Was there anyone else who agreed
22 with that decision? DOC Cooke, did he agree
234
1 with that decision?
2 A I can't speak for DOC Cooke. He --
3 there was no objection raised, but he would
4 have no reason to object.
5 Q What was DOC Cooke's position at
6 the time?
7 A He was the director of
8 administration and management in the
9 Pentagon, in the Washington headquarters.
10 Q As such, what were his duties and
11 responsibilities?
12 A He is the head administrator in
13 the -- in the Office of the Secretary of
14 Defense, personnel, logistics, security,
15 almost all of support type functions.
16 Q He works directly underneath the
17 Secretary of Defense?
18 A Yes.
19 Q He takes instructions from the
20 Secretary of Defense?
21 A I doubt -- I don't know how much.
22 I doubt that he goes to the Secretary of
235
1 Defense all the time for -- for advice and
2 instruction.
3 Q But his ultimate superior is the
4 Secretary of Defense?
5 A That's correct.
6 Q He reports to the Secretary of
7 Defense?
8 A That's correct.
9 Q Is there anybody between him and
10 the Secretary of Defense in the reporting
11 process?
12 A Not that I'm aware of.
13 Q Mr. Cooke wouldn't do anything in
14 terms of releasing information about the
15 Pentagon employee without the permission of
16 the Secretary of Defense, would he?
17 A That's not true. Mr. Cooke did not
18 release the information.
19 Q But he went and got it, didn't he?
20 A No, he enabled me to get it.
21 Q How did he in enable you to get it?
22 A The people who have the information
236
1 work for him.
2 Q Who are the people that had the
3 information?
4 A I answered that earlier Mr. O'Toole
5 and Mr. -- whoever it was who I said worked
6 for the Defense Investigative Service.
7 Q So DOC Cooke told you that he had
8 ordered them to get the information for you?
9 A No, DOC Cooke told them to make the
10 information available for me.
11 Q Is that command in a written
12 communication?
13 A No.
14 Q DOC Cooke told you that?
15 A Yes.
16 Q When did you meet with DOC Cooke
17 following your conversation with Mr. Bacon?
18 A The next morning.
19 Q Did you meet with him in his
20 office?
21 A Yes. I spoke to him on the phone
22 once and then went to his office once.
237
1 Q So you called him and told him you
2 wanted to see him the following morning?
3 A The first call was a follow-up to
4 Ms. Bacon's call from the night before asking
5 if he had a chance to get the information.
6 He hadn't yet and when he had it, I went up
7 to his office.
8 Q Just to clarify, was it your
9 understanding when you met with Mr. Bacon the
10 night before that Mr. Bacon had requested DOC
11 Cooke to get the information about Ms. Tripp?
12 A Yes.
13 Q It was based on that understanding
14 that you called DOC Cooke the next morning?
15 A Yes.
16 Q You went up to see DOC Cooke?
17 A Yes.
18 Q Who spoke first? You or DOC Cooke?
19 A I don't remember.
20 Q What did DOC Cooke say to you
21 during that encounter?
22 A That he had -- it was partial
238
1 information. He had information from
2 the 171. At the bottom of that form it asks
3 a similar questions about felonies or --
4 again, I don't remember the wording exactly,
5 but he indicated that she had answered --
6 MR. QUINLIVAN: I want to caution
7 the witness that he is not to reveal the
8 specific information that was revealed
9 subject to my earlier objection. Subject to
10 that limitation the witness can respond to
11 the question.
12 MR. KLAYMAN: Same objection to
13 your interrupting his answer. Certify it.
14 THE WITNESS: So he indicated what
15 was on that -- that form there.
16 Since the specific question that
17 came from Ms. Mayer was regarding her
18 security form, I asked him then if we could
19 look at her security form and that's when he
20 referred me to Mr. O'Toole and to this -- I
21 just can't remember his name from DIS.
22 BY MR. KLAYMAN:
239
1 Q The security form is what number?
2 A 398.
3 Q So initially it was Form 171 that
4 was provided to you?
5 A Information from the 171, yes.
6 Q What type of information is
7 contained on a 171?
8 A It's the civilian personnel
9 equivalent of a resume. It's all the past
10 jobs that they've had in the government.
11 Q That is also part of the employee's
12 personnel file, is it not?
13 A It is in the file. I -- it is not
14 something -- well, it is. It's something
15 that everybody gives out just like a resume.
16 Q But it's kept in the personnel
17 file?
18 A Yes.
19 Q It's considered to be a part of the
20 personnel file?
21 A A copy of it is, yes.
22 Q The information on the 171, is what
240
1 you're saying, was not sufficient to answer
2 Ms. Mayer's question?
3 A That's correct.
4 Q So, therefore, you requested of DOC
5 Cooke to be able to get the Form 398, right?
6 A That's correct.
7 Q What did DOC Cooke respond to you
8 in response to your request?
9 A He sent me to Mr. O'Toole.
10 Mr. O'Toole had some information, but the 398
11 was not part of it. He referred me to the
12 Defense Security Services, DSS, and they had
13 the form.
14 Q DOC Cooke during that meeting said
15 it was all right for you to get that form, to
16 give the information on it to Ms. Mayer?
17 A He said that it was all right for
18 me to get the form. He didn't comment on
19 what I could or could not do with it.
20 Q But he didn't tell you not to give
21 any information to Ms. Mayer on that form?
22 A That's correct.
241
1 Q DOC Cooke knew that you were
2 seeking information for Ms. Mayer?
3 A I don't know what -- what Ken Bacon
4 old DOC Cooke. Again, I didn't discuss it
5 with him.
6 Q But you informed DOC Cooke that you
7 were seeking the information to answer an
8 inquiry from the media, were you not?
9 A No, I never did do that. All I did
10 was follow-up on Ken Bacon's call and -- and
11 there was the understanding of what he was
12 getting. So I never did say to DOC Cooke
13 what I was doing.
14 Q At the time you assumed that Ken
15 Bacon had told DOC Cooke why the information
16 was being sought?
17 A I didn't assume that. I just
18 assumed what Ken Bacon told me, that he had
19 called DOC and asked him about this
20 information. I don't know the details of
21 what that conversation was.
22 Q Did you ask for anything from DOC
242
1 Cooke in addition to the 398 and the 171?
2 A No.
3 Q Did there come a point in time when
4 the information from the Form 398 became
5 available to you?
6 A Yes.
7 Q When was that?
8 A It was around noon, maybe a little
9 later.
10 Q How did it come into your
11 possession?
12 A The DSS faxed it to me.
13 Q What's the DSS?
14 A Defense Security Service.
15 Q Are there any types of guidelines
16 or regulations inside the Department of
17 Defense that concern faxing material out of
18 the personnel file?
19 A I am not aware of it. It's outside
20 of my area of knowledge. I don't know.
21 Q During the time that you worked for
22 the Department of Defense did you become
243
1 aware of any information out of a personnel
2 file that was faxed to the wrong addressee?
3 A I don't have any personal knowledge
4 of it.
5 Q Who faxed it to you in terms of an
6 individual?
7 A It's Mr. Hale, if I had the -- let
8 me see. Maybe I have it. It's on the form.
9 I'm sorry. Maybe it's not part of it. I
10 don't remember his name. It was Hal, I
11 believe, something.
12 Q Hale?
13 A Hal, H-a-l.
14 Q Hal, H-a-l, Howard?
15 A No, Hal.
16 Q David Hale?
17 MS. SHAPIRO: H-a-l.
18 BY MR. KLAYMAN:
19 Q H-a-l. He worked in DSS?
20 A Yes, it's -- it used to be DIS,
21 Defense Investigative Service and now it's
22 Defense Security Service.
244
1 Q DSS?
2 A Yes.
3 Q Where are they located?
4 A I don't know where they're
5 physically located.
6 Q When you received that fax,
7 Form 398, what did you do with it?
8 A I took it in and discussed it with
9 Mr. Bacon.
10 Q What did you discuss with
11 Mr. Bacon?
12 A I said these are the -- this is how
13 she answered it.
14 Q What did you tell him?
15 MR. QUINLIVAN: Let me just repeat
16 my cautionary objection that the witness not
17 reveal the substance of the information on
18 the 398 form. Subject to that limitation the
19 witness can respond to the answer.
20 THE WITNESS: I showed him the
21 answers. I showed him form and I showed him
22 the answers.
245
1 BY MR. KLAYMAN:
2 Q What did he say?
3 A Then I said do you want to call her
4 back or should I and he said why don't you do
5 it.
6 Q Did he tell you why he wanted you
7 to do it?
8 A No, it's just he was busy doing
9 something else.
10 Q At the time that he asked you to do
11 it did you think maybe he's having me do this
12 so if I get caught, I take the blame?
13 A No, absolutely not. Absolutely
14 not. This is -- it just did not occur that
15 this was anything out of the normal and
16 that's the best answer I can give you.
17 That's the most honest answer I can give you.
18 Q Now, you're saying this wasn't
19 anything out of the normal. Is what you're
20 saying that the whole Lewinsky/Tripp
21 controversy was nothing unusual?
22 A No, that is not what I'm saying.
246
1 Q Do you consider that controversy to
2 be unusual?
3 A What I'm saying is that --
4 Q Answer that question.
5 A We release a lot of information and
6 this did not seem out of the ordinary at the
7 time and in terms of -- of everything that
8 was going on and a lot of -- lot of -- doing
9 a lot of things that day, this was one minor
10 thing that we did. It did not register with
11 either of us that this was out of the
12 ordinary. Should it have, that's a different
13 question, but it didn't and there is nothing
14 more sinister in it than that.
15 Q Is what you're saying that the
16 whole issue concerning Monica Lewinsky and
17 Linda Tripp is nothing out of the ordinary?
18 A That is not what I'm saying. I've
19 answered a specific question.
20 Q Well, let me ask you with regard to
21 that. Do you consider that controversy to be
22 out of the ordinary for the Pentagon, both of
247
1 them having worked in your office?
2 A Certainly unusual.
3 Q Why is it unusual?
4 A Because both of them worked in my
5 office. Is it unusual for the Pentagon to be
6 involved in -- in newsworthy things when we
7 have so many -- so many issues that are in
8 the news every day, that's not unusual. This
9 is unusual because both of them were in
10 public affairs.
11 Q I want to ask the question again as
12 to what were the qualifications of
13 Ms. Lewinsky to be hired. Can I ask that
14 question and get a response?
15 MR. QUINLIVAN: No. If you would
16 like to ask that question, you can follow the
17 appropriate (2)(e) regulations and set forth
18 with specificity the subject matter that
19 you're seeking to request testimony about and
20 the Department can consider that in the
21 ordinary course, as it does with all other
22 requests for the testimony of governmental
248
1 employees.
2 MR. KLAYMAN: My previous
3 objections to that position stand. I just
4 wanted to see whether you will now let him
5 answer.
6 BY MR. KLAYMAN:
7 Q What else did Mr. Bacon say to you
8 when you showed him the 398?
9 A Nothing.
10 Q You then called Ms. Mayer back?
11 A I did.
12 Q How long after the meeting did you
13 call her back?
14 A I did it immediately after the
15 meeting.
16 Q When did you call her? Where was
17 she at the time?
18 A I believe she was in her office.
19 Q In what city?
20 A I have no idea. I mean I don't
21 remember the phone number or anything. I
22 just -- I had a number to call and I called
249
1 it. I don't remember.
2 Q What phone extension did you use to
3 make the call?
4 A My phone.
5 Q What extension is that?
6 A It's got six or seven different
7 extensions, so --
8 Q That's fine. Can you tell me what
9 they are?
10 A I could -- well, I mean I
11 could -- 697-0713, 697-9312, 13, 14, and then
12 there's two others that I almost never use.
13 But it always depends -- it's a rotary some
14 of them are rotary, so you pick up the line.
15 I don't remember which line lit up at the
16 time I picked up the phone.
17 Q What are the two other extensions?
18 A I don't know.
19 Q What did you discuss with Ms. Mayer
20 when you spoke with her? Did you get her on
21 the phone?
22 A I did get her on the phone. I gave
250
1 her the answers to the questions that she
2 asked.
3 Q What did she tell you, if anything?
4 A She said what if I had information
5 that that information is not true and I said
6 that would be a serious circumstance and it
7 would have to be investigated.
8 Q Was anything else discussed?
9 A She asked me to read the questions
10 again to make sure that she had the correct
11 wording of the questions themselves on the
12 form.
13 Q Are these the questions that are
14 listed on Bates Stamp 39?
15 A Right.
16 Q Now, she had asked you the
17 question, did she not, whether Ms. Tripp had
18 lied that she had ever been arrested?
19 A No, she never asked that question.
20 She asked how she answered the question on
21 that form.
22 Q Did she tell you that she had