251
1 information that Ms. Tripp had lied?
2 A After I provided the information
3 she said what if I had information to the
4 contrary and I said that would be a serious
5 circumstance and it would have to be
6 investigated.
7 Q Did she say anything else?
8 A No.
9 Q Did you say anything else in that
10 conversation?
11 A No.
12 Q Now, why did you respond to
13 Ms. Tripp that would be a serious question
14 that would have to be investigated? Why did
15 you respond to Ms. Mayer that that would have
16 been a serious issue that would have to
17 investigated?
18 MR. QUINLIVAN: Let me just object
19 that we've now gone, again, far beyond the
20 specific subject matter that is the subject,
21 which is the release of information or the
22 matter of whether or not the release of this
252
1 information was, in itself, a Privacy Act
2 violation. It's not the subject of this.
3 The subject that was supposed to be
4 a matter at issue here was White House
5 involvement in the release of information.
6 We've now gone far afield from that. The
7 witness has testified to that, as to his
8 personnel knowledge, and we're, again, far
9 afield from what the subject is.
10 MR. KLAYMAN: Well, again, you're
11 in contravention of what the Court just said
12 at our hearing this afternoon. The Court did
13 not intend the limitation that you are
14 reading. I'm not going to get into the
15 substance because I, frankly, don't want to
16 get into testimony. But you are in direct
17 violation of what this court said this
18 afternoon and that interpretation. Certify
19 it.
20 BY MR. KLAYMAN:
21 Q Now I ask the question. Why did
22 you say to Ms. Mayer, why did you respond
253
1 that this is a serious matter that would need
2 to be investigated?
3 A She asked a question what if. I
4 said if it's true, that would be a serious
5 circumstance. I was responding to a
6 question.
7 Q What was the basis of your making
8 that statement?
9 A That it's fact.
10 Q Why would it be a serious
11 circumstance?
12 MR. QUINLIVAN: Counsel, can we
13 take a two-minute break?
14 MR. KLAYMAN: No, I want the
15 unfettered testimony. Every time I ask an
16 important question, you take a break and you
17 go off and you coach him. It's a simple
18 question.
19 BY MR. KLAYMAN:
20 Q Why, in your opinion, was that a
21 serious matter that would have to be turned
22 over for investigation? Why did you say that
254
1 to Ms. Mayer?
2 MR. QUINLIVAN: The witness is
3 going to stay inside. We are going to confer
4 outside for a moment. We're asking for a two
5 minute-break.
6 VIDEOGRAPHER: We're going off
7 video record at 5:14 p.m.
8 (Recess)
9 VIDEOGRAPHER: We're back on video
10 record at 5:16 p.m.
11 BY MR. KLAYMAN:
12 Q Why, in your opinion, was that a
13 serious matter that needed to be
14 investigated?
15 A Can I answer it? The bottom of
16 the 398 says this is a serious matter and any
17 violation of it would be -- I forget the
18 wording, but there is -- at the signature
19 line that's essentially what it says. That's
20 why I said it.
21 BY MR. KLAYMAN:
22 Q Had you read that before you gave
255
1 that opinion to Ms. Mayer?
2 A I did.
3 Q Now, the reason you said it was a
4 serious matter that needed to be investigated
5 is because Ms. Mayer had told you that, in
6 fact, she had been arrested, correct?
7 A That is not correct. What I said
8 was that she said what if I have information
9 that is inconsistent. I forget the words,
10 and I said what I said.
11 Q Had you ever dealt with Ms. Mayer
12 before?
13 A I had never dealt with Ms. Mayer
14 before.
15 Q Do you know if anyone at the
16 Pentagon had?
17 A I would be surprised if they
18 didn't, but I am not aware of the specifics.
19 Q Now, in the course of your
20 conversations with Mr. Bacon, Mr. Bacon
21 advised you that Ms. Mayer was very favorably
22 disposed of the Clinton administration?
256
1 A No.
2 Q But you knew that from other
3 sources, didn't you?
4 A I know that from no source. I
5 still don't know that.
6 Q During the course of your
7 conversation with Mr. Cooke he advised that
8 you Ms. Mayer was very favorably disposed
9 toward the Clinton administration?
10 A Absolutely false, no.
11 Q In fact, they advised you that was
12 one of the Clintons favorite reporters?
13 A Nobody ever said anything about the
14 Clinton administration, anything to do with
15 this incident, never, never.
16 Q In fact, in the Pentagon Ms. Mayer
17 has a reputation for writing stories for
18 whatever the Clinton administration wants her
19 to write them about, correct?
20 A That is absolutely false.
21 Q Did you ever hear a reporter by the
22 name of Joe Conason?
257
1 A No.
2 Q Never heard the name?
3 A No.
4 Q New York Observer?
5 A No.
6 Q Lars Eric Nelson?
7 A No.
8 MR. QUINLIVAN: I'm going to object
9 to this. The witness has already testified
10 as to his communications with Ms. Mayer and
11 whether or not there was White House
12 involvement. What possible relevance could
13 be other people who were not the subject of
14 this?
15 BY MR. KLAYMAN:
16 Q Are you aware, Mr. Bernath, that
17 certain reporters have been appearing on
18 television making statements that you were
19 the only one that was responsible for
20 releasing this information? Have you seen
21 such commentary on television?
22 A Not that I was the only one.
258
1 They -- the coverage has been that I released
2 the information, that is true.
3 Q That you did so on your own. Are
4 you aware that that is being said by certain
5 commentators on the television and in the
6 press?
7 A I haven't seen that in any of the
8 media that I've read.
9 Q Now, if that is being said, that
10 wouldn't be true, would it?
11 A I've told you the circumstances.
12 Q That's not true, is it? You didn't
13 do it on your own?
14 A No, I didn't do it on my own. I
15 did do it.
16 Q Now, was there anything else said
17 in your conversation with Ms. Mayer?
18 A No.
19 Q Did you have any later
20 conversations or correspondence with her at
21 any variety?
22 A She called a day, two days, three
259
1 days, I can't remember how much later, to
2 inform me that she had received a call from
3 Tucker.
4 Q Tucker Carlson?
5 A Tucker Carlson.
6 Q I just want to ask you based on
7 what you remember.
8 A Uh-huh.
9 Q Where was she when she called you?
10 A I have no idea.
11 Q Did you speak first or did she
12 speak first?
13 A She called. She spoke first.
14 Q What did she tell you other than
15 she received a call from Tucker Carlson?
16 A She said that he was a rabid
17 anti-Clintonite and he may be calling me.
18 Q Why did she tell you he was a rabid
19 anti-Clintonite?
20 A I do not know.
21 Q Did she elaborate on what a rabid
22 anti-Clintonite is?
260
1 A No.
2 Q What did you take that to mean?
3 A I took that to mean that she
4 thought he was a rabid anti-Clintonite.
5 Q Did you take that to mean that she
6 was favorably disposed to the Clinton
7 administration?
8 A No.
9 Q Did you ask her why she would make
10 such a statement about Mr. Carlson?
11 A No.
12 Q Did you find that statement
13 peculiar?
14 A No.
15 Q She said that Mr. Carlson would be
16 calling you?
17 A May be calling me.
18 Q What did she say was the basis of
19 her information?
20 A I believe he had called her.
21 Q What did she say he had talked to
22 her about?
261
1 A The release of the information.
2 Q What specifically did he ask of
3 her?
4 A I don't know.
5 Q Did she tell you that?
6 A No.
7 Q Now, other than that first call
8 that occurred before this one, you never
9 talked to Ms. Mayer before?
10 A That's correct.
11 Q Did you ask her why are you calling
12 me to tell me this?
13 A No. I assumed that she just wanted
14 to give me a heads up, but I don't know why.
15 Q Did you ask yourself why she wanted
16 to give you a heads up? Did you think that
17 through?
18 A No. Again, putting it in context,
19 I'm answering 30 or 40 phone calls a day, I'm
20 doing a hundred other things. A call comes
21 in. I note the information. I hang up. I
22 move on to the next thing I'm doing.
262
1 Q What else did Ms. Mayer say?
2 A That was it.
3 Q Now, you say you're getting 30
4 to 40 calls a day. What other calls did you
5 get about Ms. Tripp during that period?
6 A I received numerous other media
7 calls. I do not have a listing of them.
8 Q Can you remember names of other
9 member of the media?
10 A No.
11 MR. QUINLIVAN: I'm going to now
12 object that this is beyond the scope of any
13 possible relation to the release of
14 information that regards Ms. Tripp. It's far
15 afield and if counsel wishes to inquire into
16 this subject area, he should submit a (2)(e)
17 request to the Department of Defense setting
18 forth in specificity what matters he wishes
19 to discuss and the Department of Defense can
20 consider that in the ordinary course of
21 business.
22 MR. KLAYMAN: Well, I ask you to
263
1 consider in the ordinary course of your
2 business that my having to do that is going
3 to cost time and money to my clients and ask
4 you to consider the fact that the Court made
5 no such ruling today, that I don't have any
6 latitude beyond the four corners of the words
7 that are used in the order.
8 I'm looking for information with
9 regard to other information requests by other
10 members of the media that he may have
11 released with regard to Ms. Tripp. I'm
12 entitled to do that and that's within the
13 scope of the Court's order. Do you wish to
14 change your position?
15 MR. QUINLIVAN: No.
16 MR. KLAYMAN: Because if you do not
17 wish to change your position, I'll be moving
18 for attorney's fees and cost for the effort
19 and expense of having to do this, having to
20 move the Court.
21 MR. QUINLIVAN: If you wish to seek
22 that information, there is an appropriate
264
1 remedy for you to do that. That is to go to
2 the Department of Defense through their
3 appropriate (2)(e) regulations, which you
4 have not done and which is required of all
5 other persons seeking such testimony. You
6 have not done so. To the extent you want to
7 reach information beyond that regarding the
8 specific information release regarding
9 Ms. Tripp --
10 MR. KLAYMAN: There is no
11 limitation in the Court's order with regard
12 to information given to Ms. Mayer. It was
13 not restricted just to Ms. Jane Mayer.
14 MR. QUINLIVAN: He has testified as
15 to the subject matter of this area. If you
16 want additional information as to the
17 information that was released about Ms. Tripp
18 to other reporters, you can follow the (2)(e)
19 regulations of the Department of Defense and
20 the Department can consider that in its
21 ordinary course of business.
22 MR. KLAYMAN: You've already had
265
1 your shot at litigating this issue in front
2 of Judge Lamberth and he has made it clear
3 this afternoon that I'm not limited by his
4 order. I'm entitled to get to everything
5 within the scope of what he denied your
6 motion for protective order on and I'm asking
7 you to reconsider now.
8 MR. QUINLIVAN: The witness can
9 testify as to whether or not the specific
10 information that was released to Jane Mayer
11 regarding Ms. Tripp was released to any other
12 reporters without specifically identifying
13 what that information is. The witness is
14 instructed not to respond to questions
15 regarding any other information regarding
16 Ms. Tripp that was released to other
17 reporters.
18 MR. KLAYMAN: We take issue with
19 that, but I'll ask the question your counsel
20 is allowing me ask, however objectionable
21 your position is.
22 BY MR. KLAYMAN:
266
1 Q Did you release the information
2 that was provided to Ms. Mayer by the
3 Pentagon to any other reporter?
4 A No.
5 Q Were you requested by any other
6 reporter for that information?
7 A No. That same afternoon that the
8 information was released, Friday, once the
9 article was written, the New Yorker faxed out
10 copies to reporters so there was no -- there
11 were no other questions.
12 Q Faxed out copies of what to
13 reporters?
14 A Of her article.
15 Q Ms. Mayer's article?
16 A Right.
17 Q So the very same day that you
18 provided the information to Ms. Mayer the New
19 Yorker released its article about Linda
20 Tripp?
21 A To -- that's right. They do it as
22 a promo whenever they have -- and all
267
1 magazines do this.
2 MR. KLAYMAN: I'll show you what
3 I'll ask the Court reporter to mark as
4 Exhibit 7.
5 (Bernath Deposition Exhibit
6 No. 7 was marked for
7 identification.)
8 BY MR. KLAYMAN:
9 Q Is this a copy of the article to
10 which you just referred?
11 A It is.
12 Q This article is entitled, "Portrait
13 of a Whistleblower, The family history behind
14 Linda Tripp's anger," by Jane Mayer, correct?
15 A Correct.
16 Q Did she fax this article to you?
17 A She did.
18 Q She faxed it to you the day that
19 you gave her the information about Ms. Tripp?
20 A It was actually towards the evening
21 that this thing came out.
22 Q Where was this document faxed?
268
1 A To my office.
2 Q Do you know the name, the fax
3 number of the machine that received it?
4 A I don't.
5 Q Where is that fax machine located?
6 A In our outer -- outer office.
7 Q What is the outer office? Is there
8 a suite and then there's a fax machine in the
9 common area?
10 A Yes.
11 Q Was this article faxed to anyone
12 else in the Department of Defense?
13 A No, this -- it came to OSD Public
14 Affairs and then I'm sure we made copies and
15 gave it to -- to the desk officers, to
16 Mr. Bacon and I'm not sure who else got
17 copies of it.
18 Q So you gave it to Mr. Bacon and the
19 desk officers?
20 A Yes.
21 Q Did you yourself deliver it to
22 Mr. Bacon?
269
1 A Probably not. The procedure in the
2 office is that whoever takes the fax makes
3 whatever copies and delivers them to the --
4 to the principals and whoever else they think
5 need it.
6 Q Who would have gotten it in the
7 ordinary course?
8 A The people in the front office,
9 Mr. Bacon, myself, Mr. Wilson, Captain
10 Doubleday and the desk officers.
11 Q Who are the desk officers?
12 A It's that 30-member group back in
13 DDI, in Defense Information.
14 Q By the way Mr. Cooke, DOC Cooke,
15 he's a political appointee, isn't he?
16 A No, he's a lifelong -- he's a
17 retired Navy officer and a career civil
18 servant.
19 Q Is Mr. Wilson a political
20 appointee?
21 A Mr. Wilson is a political
22 appointee.
270
1 Q What is his title?
2 A Deputy Assistant, Secretary of
3 Defense, Public Affairs.
4 Q Does he work underneath Mr. Bacon?
5 A Yes, he does.
6 Q Is he directly underneath
7 Mr. Bacon?
8 A Yes, he is.
9 Q Mr. Bacon is a political appointee?
10 A He is.
11 Q What are both of their ranks as
12 political appointees?
13 A Mr. Bacon is an executive level 4
14 and Mr. Wilson is an SES-3 I believe.
15 Q Both were appointed by the Clinton
16 administration?
17 A Yes.
18 Q Captain Doubleday, is he a
19 political appointee?
20 A He's a career Navy officer.
21 Q What was Captain Doubleday's
22 position at the time this article from
271
1 Ms. Mayer was received?
2 A He is -- he is also a Deputy
3 Assistant Secretary of Defense.
4 Q At the same level as Mr. Wilson?
5 A (Nodding), except he's a Navy
6 captain.
7 Q You have to answer orally.
8 A I did. I said he is --
9 Q You just nodded. Is that a yes?
10 A Were words coming out?
11 Q No, I didn't hear words.
12 A Well, there were.
13 Q Was it yes?
14 A He is a Navy captain. His title is
15 the same, but his rank is Navy captain.
16 Q Is his rank higher?
17 A No.
18 Q Lower?
19 A His position is equal. His rank is
20 lower. I mean one is military, one is
21 civilian. There's no equivocal --
22 Q Did you ever discuss your
272
1 conversations with Ms. Mayer with either
2 Mr. Wilson or Captain Doubleday?
3 A I don't believe so.
4 Q You're not sure?
5 A Yeah, I don't believe so.
6 Q Were they aware that you had
7 discussions with Ms. Mayer where you released
8 information about Ms. Tripp?
9 A I don't think they knew about it
10 until -- until afterwards.
11 Q Who else was the article
12 distributed to?
13 A I don't know beyond that.
14 Q Now, you said that they became
15 aware of it afterwards. How did they become
16 aware that you had communicated with
17 Ms. Mayer about Ms. Tripp and given Ms. Mayer
18 information afterwards?
19 A When this article came out, it says
20 in here that a defense official said it.
21 Q Did they come and ask you whether
22 it was you?
273
1 A I don't recall.
2 Q Did they inquire as to how this
3 information came into the hands of Ms. Mayer?
4 MR. QUINLIVAN: I'm going to object
5 again. Again, we're going far beyond the
6 scope of the release of information and any
7 connection to the White House. If you wish
8 to pursue this line of inquiry, there is an
9 available remedy for you to pursue.
10 MR. KLAYMAN: We just pursued that
11 remedy in front of the Court and we got a
12 clarification from the judge's order. It
13 seems to me that you have no respect for what
14 the Court said this afternoon.
15 MR. QUINLIVAN: That is a complete
16 and utter mischaracterization and completely
17 unfounded.
18 MR. KLAYMAN: I'm finding it based
19 on what the Court said.
20 MR. QUINLIVAN: The objection
21 stands.
22 MR. KLAYMAN: Certify it.
274
1 BY MR. KLAYMAN:
2 Q Did these individuals, Wilson or
3 Doubleday, come to you and say are you the
4 official?
5 A I don't remember. It was never any
6 secret who -- you know, it was never any
7 attempt on our part to keep this a secret
8 who -- who said it, but I don't remember
9 whether I said it to them or they said it to
10 me. I just don't know.
11 Q After this article came out did
12 anyone come to you and say to the effect how
13 the heck did this information get out of the
14 Pentagon about Tripp?
15 MR. QUINLIVAN: I'm now going to
16 repeat the same objection that we had earlier
17 and inform counsel that if he wishes to
18 inquire into this area, he has an available
19 remedy. The witness is not to answer this
20 line of inquiry.
21 MR. KLAYMAN: Certify it.
22 BY MR. KLAYMAN:
275
1 Q Has anyone made inquiry since this
2 information was provided to Ms. Mayer inside
3 the Pentagon or elsewhere as to why this
4 information was released?
5 MR. QUINLIVAN: The same objection
6 stands that we have asserted earlier.
7 MR. KLAYMAN: Certify it.
8 BY MR. KLAYMAN:
9 Q You stated to Ms. Mayer that if
10 this had occurred, if Linda Tripp had lied on
11 her 398 form, that this would be a matter to
12 investigate, correct?
13 A Correct.
14 Q What action did you then take to
15 have Ms. Tripp investigated?
16 MR. QUINLIVAN: The same objection
17 that we have set forth earlier stands as to
18 this line of inquiry.
19 MR. KLAYMAN: Certify it.
20 THE WITNESS: Can I ask for a
21 two-minute break?
22 MR. KLAYMAN: Yes.
276
1 VIDEOGRAPHER: We're going off
2 video record at 5:36 p.m.
3 (Recess)
4 VIDEOGRAPHER: We're back on video
5 record at 5:51.
6 BY MR. KLAYMAN:
7 Q Have you ever met the Secretary of
8 Defense, William Cohen?
9 A Yes.
10 Q Have you ever discussed with him
11 Linda Tripp?
12 A No.
13 Q When was the last time you saw the
14 Secretary of Defense face to face?
15 A It's been months.
16 Q Roughly, how many?
17 A At least two.
18 Q Two months?
19 A At least two.
20 Q Have you spoken with the Secretary
21 of Defense by phone?
22 MR. QUINLIVAN: Just a moment.
277
1 MR. KLAYMAN: Very benign
2 questions.
3 MR. QUINLIVAN: Just a moment. We
4 are going to assert the same objection that
5 we had before. He's already stated that he
6 has not discussed Linda Tripp with the
7 Secretary of Defense. As such, any further
8 inquiry into this matter is not appropriate
9 absent the proper documentation.
10 MR. KLAYMAN: I'm not required to
11 accept that what he says is true and I'm
12 entitled to identify whether or not he's had
13 communications because this may lead to
14 relevant evidence. Such a benign question,
15 I'm surprised you're so sensitive about it,
16 Mr. Quinlivan. Are you instructing him not
17 to answer that?
18 MR. QUINLIVAN: Yes, we are.
19 MR. KLAYMAN: Certify it. Have you
20 sent any E-mails to the Secretary of Defense?
21 MR. QUINLIVAN: We're going to
22 assert the same objection.
278
1 MR. KLAYMAN: Certify it.
2 BY MR. KLAYMAN:
3 Q Have you sent any memoranda to the
4 Secretary of Defense?
5 MR. QUINLIVAN: Same objection.
6 MR. KLAYMAN: Certify it.
7 BY MR. KLAYMAN:
8 Q Have you sent any other type of
9 written communication to the Secretary of
10 Defense?
11 MR. QUINLIVAN: Same objection.
12 MR. KLAYMAN: Certify it.
13 BY MR. KLAYMAN:
14 Q Let's turn back to Exhibit 7. This
15 is the Mayer article. I'm turning to
16 page 45, wherein it states at the top, "On
17 May 12, 1969, when she was 19, records show
18 that Linda Carotenuto was arrested in the
19 small resort town of Greenwood Lake, New
20 York, on a grand larceny charge."
21 During your conversations with
22 Ms. Mayer she told you that, didn't she?
279
1 A She did not.
2 Q Have you learned that from any
3 other source?
4 A I learned that from reading this
5 article.
6 Q The article then states, "According
7 to the police report, two men, Robert Hoffman
8 and Paul Orlando, accused her of
9 stealing $263 in cash and a watch valued
10 at $600 from their rooms in the Long Pond
11 Inn."
12 Did Ms. Mayer tell you that during
13 your conversations?
14 A No, she did not.
15 Q Did you learn that from any other
16 source?
17 A No.
18 Q You only learned it from reading
19 the article?
20 A Yeah, I learned these details from
21 the article, that's right.
22 Q "She was arrested at 8:30 a.m.
280
1 after the stolen goods were found in her
2 possession, the report says, and she gave
3 oral admissions to the police."
4 Did you learn that from Ms. Mayer
5 during your telephone conversations?
6 A I learned nothing from Ms. Mayer
7 during the telephone conversations except the
8 information that I've already testified to.
9 Q Then it states at the second
10 paragraph, "According to the Defense
11 Department, when specifically asked in a
12 security clearance form in 1987 whether she
13 had ever been 'arrested, charged cited or
14 held by federal, state or other law
15 enforcement or juvenile authorities
16 regardless of whether the citation was
17 dropped or dismissed or you were found not
18 guilty,' Tripp answered no."
19 In fact, Ms. Mayer told you that,
20 didn't she, during the telephone
21 conversations?
22 A She did not.
281
1 Q The Defense Department referenced
2 there, that's with regard to the information
3 which you provided?
4 MR. QUINLIVAN: I'm going to object
5 to that question. The same objection that we
6 had earlier as to this line of questioning.
7 MR. KLAYMAN: Are you instructing
8 him not to answer?
9 MR. QUINLIVAN: Yes, I am.
10 MR. KLAYMAN: But he just testified
11 that these individuals, Mr. Wilson and
12 Captain Doubleday, assumed that it was
13 Mr. Bernath from the reference to the Defense
14 Department.
15 BY MR. KLAYMAN:
16 Q Didn't you testify to that?
17 A I did.
18 Q They told you that they understood
19 it to have come from you?
20 A We didn't have that specific
21 conversation.
22 Q What conversation did you have?
282
1 A I'm -- I don't remember any
2 specific conversation on it.
3 Q Your mind has gone blank?
4 A No, I've testified to what I've
5 testified.
6 Q Well, what conversation did you
7 have with Wilson and Doubleday about this
8 information that was released to Ms. Mayer?
9 A If there was any kind of
10 conversation, it was a casual conversation, I
11 don't remember the details. I don't remember
12 specifically having a conversation with them.
13 I don't even know if -- if one or both of
14 them were in town on that day.
15 Q In Exhibit 3 that I previously read
16 to you today.
17 MS. WEISMANN: Can the witness see
18 Exhibit 3, please?
19 (Discussion off the record)
20 BY MR. KLAYMAN:
21 Q Let me read it to you. If you
22 want, we'll come over and show it to you.
283
1 Let me just read it into the record.
2 A Can I ask what you're reading from,
3 what the document is?
4 Q Exhibit 3. This is the interview
5 on Fox Morning News of last Sunday,
6 April 26, 1998. I read it to you earlier.
7 A I didn't memorize all the exhibit
8 numbers.
9 Q Wherein Tony Snow asked, "Her
10 personnel file, her meaning Linda Tripp, was
11 made public that's illegal isn't it?" Cohen
12 responds, "We think it's certainly
13 inappropriate, if not illegal, and we called
14 for an investigation as to how that occurred
15 and we know the individual that did release
16 it."
17 "SNOW: Was it Clifford Bernath,
18 was he the one who did it?
19 "COHEN: Yes."
20 How did Mr. Cohen. The Secretary
21 of Defense, get the information that you were
22 the one who did it?
284
1 MR. QUINLIVAN: I'm going to object
2 to this line of inquiry on the same basis of
3 our earlier objection. That is beyond the
4 subject of the scope of the judge's order as
5 well as the scope of what Mr. Bernath is
6 entitled to testify here today pursuant to
7 Department of Defense directive. If you want
8 to seek that information, you have the
9 available remedy of filing a (2)(e) request.
10 MR. KLAYMAN: Even assuming that
11 your reliance on (2)(e) without any regard to
12 what the Court has already ordered and said
13 today in court was valid, which it's not, the
14 statements of Secretary Defense Cohen waive
15 any (2)(e) requirement because he's
16 responding that he already knows, and I'm
17 just simply asking how did Mr. Cohen find out
18 that you were the one who was being blamed
19 for this?
20 MR. QUINLIVAN: This objection
21 stands. The witness is directed not to
22 respond to that question.
285
1 MR. KLAYMAN: Certify it.
2 BY MR. KLAYMAN:
3 Q Now, you told me that you did
4 become aware, because you were called by Ken
5 Bacon on Monday morning of this week, that
6 Cohen had made that statement on Fox Morning
7 News, correct?
8 A Yes.
9 Q Now, did you take issue with the
10 fact that you were being singled out when you
11 talked to Ken Bacon?
12 MR. QUINLIVAN: I'm going to assert
13 the same objection that we have asserted
14 earlier with regard to this testimony.
15 MR. KLAYMAN: Certify it.
16 BY MR. KLAYMAN:
17 Q Now, the statement made by
18 Secretary Cohen, that you were the one, you
19 weren't the only one, correct, that was
20 involved?
21 MR. QUINLIVAN: Objection, that has
22 been asked and answered on a number of times.
286
1 MR. KLAYMAN: I'm putting it in
2 context.
3 BY MR. KLAYMAN:
4 Q You can respond.
5 A I am the one who released the
6 information.
7 Q But you weren't the only one who
8 was involved, were you?
9 A No, but I am the one who released
10 the information.
11 Q Now, the statement by Secretary
12 Cohen is misleading, isn't it?
13 A No.
14 MR. QUINLIVAN: Objection the
15 witness is directed not to respond to that
16 question.
17 BY MR. KLAYMAN:
18 Q Since you found out on Monday,
19 after talking to Mr. Bacon, that Secretary of
20 Defense Cohen had singled you out, have you
21 taken any steps to have the public record
22 corrected as to who was involved in this
287
1 whole matter?
2 MR. QUINLIVAN: Same objection.
3 The witness is directed not to respond.
4 MR. KLAYMAN: Certify it. After
5 you heard that the Secretary of Defense had
6 singled you out as the one who did this, did
7 you then seek legal counsel?
8 MR. QUINLIVAN: Same objection.
9 MR. KLAYMAN: Personal legal
10 counsel?
11 MR. QUINLIVAN: Excuse me same.
12 Objection. The witness is directed not to
13 respond.
14 MR. KLAYMAN: Certify it. Do you
15 presently have any concern that you're being
16 held out to dry?
17 MR. QUINLIVAN: Same objection.
18 MR. KLAYMAN: You can answer that.
19 MR. QUINLIVAN: You can respond to
20 that.
21 THE WITNESS: My entire career has
22 raised me to believe that the people in my
288
1 chain of command will not do me wrong, so I
2 have to trust that training. It hasn't
3 failed in 30 years. I don't expect it to
4 fail now.
5 BY MR. KLAYMAN:
6 Q Even if it means that that chain of
7 command disseminated false or misleading
8 information to the media?
9 A They did not. That's your
10 characterization, not mine.
11 Q Then why wasn't Mr. Bacon and
12 Mr. Cooke identified as being involved in the
13 release to Ms. Mayer?
14 MR. QUINLIVAN: We have the same
15 objection as we have stated earlier to this
16 line of inquiry.
17 MR. KLAYMAN: Both political
18 appointees of the Clinton administration.
19 THE WITNESS: Just as a correction,
20 though, Mr. Cooke is not a political
21 appointee.
22 BY MR. KLAYMAN:
289
1 Q Mr. Bacon and Mr. Wilson. The
2 question with regard to Mr. Bacon and the two
3 of them, Wilson.
4 MR. QUINLIVAN: Excuse me. Same
5 objection, counsel.
6 BY MR. KLAYMAN:
7 Q You can respond.
8 MR. QUINLIVAN: No, we are
9 directing the witness not to respond.
10 MR. KLAYMAN: Certify it.
11 BY MR. KLAYMAN:
12 Q Now, as part of your duties as a
13 public affairs officer, your past duties, was
14 it your practice to allow false or misleading
15 information to be disseminated to the media?
16 A No.
17 Q So, consequently, you don't approve
18 of this statement by Secretary Cohen, do you?
19 MR. QUINLIVAN: Same objection that
20 we have. The witness is directed not to
21 respond.
22 MR. KLAYMAN: Certify it.
290
1 BY MR. KLAYMAN:
2 Q Did you ever have any other
3 conversations with Ms. Jane Mayer?
4 A No.
5 Q Anyone from the New Yorker besides
6 Ms. Mayer about Linda Tripp at any time, any
7 conversations with anyone from the New
8 Yorker?
9 MR. QUINLIVAN: Same objection that
10 we had stated earlier. The witness is
11 directed not to respond.
12 MR. KLAYMAN: Certify it.
13 MR. QUINLIVAN: Let me amend that
14 objection in accordance with what we had
15 stated as an earlier objection. That the
16 witness is allowed to respond as to whether
17 he discussed the specific information that
18 was revealed to Ms. Mayer, to any other
19 journalist providing that he does not reveal
20 the specific information revealed to
21 Ms. Mayer. Otherwise the witness is directed
22 not to respond.
291
1 THE WITNESS: There was another
2 call from the New Yorker. It was not from a
3 reporter, but it was from their fact-checking
4 section, and I do not recall the name of the
5 individual. All he did was read back the
6 information as Ms. Mayer had given it to him
7 and asked if that was correct.
8 MR. KLAYMAN: I show you what I'll
9 ask the Court reporter to mark as Exhibit 8.
10 (Bernath Deposition Exhibit
11 No. 8 was marked for
12 identification.)
13 BY MR. KLAYMAN:
14 Q I show you Exhibit 8. Exhibit 8 is
15 an article in The Washington Times by Rod
16 Dreher, D-r-e-h-e-r, dated April 26, 1994.
17 Take an opportunity to review that and tell
18 me whether you've seen it before.
19 A I don't recall that I --
20 MR. QUINLIVAN: No.
21 MS. WEISMANN: There's no question
22 pending.
292
1 MR. QUINLIVAN: There's no question
2 pending.
3 THE WITNESS: I thought he --
4 (Witness conferred with counsel)
5 BY MR. KLAYMAN:
6 Q Having reviewed this story,
7 Mr. Bernath, does this refresh your
8 recollection as to whether you've ever
9 provided incorrect information to the media?
10 A I --
11 MR. QUINLIVAN: We're going to
12 object to that question on the same ground as
13 our earlier objection.
14 MR. KLAYMAN: You're not going to
15 let him answer it?
16 MR. QUINLIVAN: That's right.
17 MR. KLAYMAN: Certify it. This
18 goes to truthfulness, veracity and
19 credibility. You're saying that's not within
20 the scope of this deposition?
21 MR. QUINLIVAN: Based on that
22 proffer, we'll allow it for that limited
293
1 purpose only.
2 BY MR. KLAYMAN:
3 Q What was this whole incident about,
4 Mr. Bernath?
5 MR. QUINLIVAN: Now, that I will
6 object to.
7 MR. KLAYMAN: I'm allowed to lay a
8 foundation.
9 THE WITNESS: I would like to have
10 time to read this article now that you're
11 couching it in a context that is not true.
12 Let me read the article and see where it's
13 coming from.
14 MR. KLAYMAN: I asked a question.
15 I take issue with you're saying I couched it
16 in a context that was not true.
17 THE WITNESS: Noted.
18 BY MR. KLAYMAN:
19 Q Have you had a chance to read it?
20 A Yes.
21 Q What is this matter about in your
22 own words?
294
1 MR. QUINLIVAN: To the extent
2 you're asking the witness whether this
3 refreshes his recollection or other matters
4 as to credibility, the witness can respond.
5 To the extent you're asking the subject
6 matter of this area, we are objecting to
7 that.
8 MR. KLAYMAN: Well, he's directly
9 involved. I can't ask one question without
10 the other. Certify it.
11 THE WITNESS: Can I answer?
12 MR. QUINLIVAN: All right.
13 THE WITNESS: I'd like to answer
14 the question. This is an issue that comes up
15 periodically. The Early Bid is a clip sheet
16 that we do every morning. It clips the major
17 daily news articles for the Secretary of
18 Defense.
19 There is disagreement among --
20 there used to be. There is no longer, but at
21 the time of this article here there was
22 disagreement in the Pentagon among -- mainly
295
1 among the Early Bid staff about whether the
2 Early Bird was a clip service or whether it
3 was a first amendment newspaper. It was
4 always a clip sheet. It is a clip sheet.
5 We issued -- I issued based on
6 conversations with Kathleen DeLaski and with
7 other people in the Pentagon whose names I do
8 not remember, we said that there -- that we
9 would like to have more types of articles,
10 from major dailies and fewer types of
11 articles from dailies that have less
12 circulation than -- than the Early Bird has.
13 So -- so I called down to the American Forces
14 Information Service, which runs the Early
15 Bird, and I put that out in a phone call.
16 For whatever reason my oral
17 instructions were put out in a memo by the
18 American Forces Information Service to the
19 staff of the Early Bird. The memo is not
20 correct. The memo was a lot more specific
21 than the conversation.
22 However, our experience has been --
296
1 was that at this time that whenever anybody
2 said -- had put any direction on the Early
3 Bird, we would get an article, especially
4 from the smaller newspapers like Tony's.
5 Tony is a friend of mine. So there is no --
6 there is nothing sinister in any of this. It
7 was just a controversy that lasted a day or
8 two.
9 BY MR. KLAYMAN:
10 Q Do you know where the a tape
11 recording that was made of your conversation
12 is now today?
13 A No.
14 MR. QUINLIVAN: I'm going to object
15 to that. We allowed the witness to give an
16 explanation as to the context of this. It
17 has no bearing on the matters at issue here
18 and any further inquiry we're going to object
19 to.
20 MR. KLAYMAN: His statements are in
21 direct contravention of what's on the tape
22 and I would ask you to preserve that tape
297
1 subject to the challenge of your refusal to
2 allow him to answer. Will you preserve the
3 tape?
4 MR. QUINLIVAN: If you want that
5 tape, there are available remedies for you to
6 pursue it.
7 MR. KLAYMAN: You're on notice.
8 You're on notice.
9 BY MR. KLAYMAN:
10 Q I'm referring back to Exhibit 4,
11 let's go to page one. Do you see the entry
12 on page one on Friday the 13th, 1998,
13 "8:30 a.m. to 8:40, Note, D-O-C Cooke." What
14 does D-O-C stand for?
15 A David O. Cooke.
16 Q It says, "Re Tripp and Jane Mayer
17 (New Yorker). Question. Follow-up to Ken's
18 conversation last." Do you see that?
19 A Yes.
20 Q Did you make that notation?
21 A I did.
22 Q Where was this notation made? Is
298
1 this a computer entry?
2 A Yes.
3 Q Or is it some kind of book?
4 A No.
5 Q How does it work?
6 A It's a computer program.
7 Q On your computer?
8 A Yes.
9 Q Did you take your computer with you
10 when you moved offices?
11 A I took the -- the program. It's a
12 portable information system. Which belongs
13 to me.
14 Q What is the computer program? I
15 don't understand.
16 A I have a 3M pilot.
17 Q So this was done on a 3M pilot?
18 A Yes.
19 Q So you took the whole pilot with
20 you?
21 A Yes.
22 Q Do you own that pilot yourself?
299
1 A I do.
2 Q You do. How did you print this
3 out?
4 A On a government computer.
5 Q You still have the pilot in your
6 possession?
7 A I do.
8 Q Do you not?
9 A Yes.
10 Q Since you received your subpoena
11 have you erased anything from that pilot?
12 A No.
13 Q Are you sure?
14 A I said no.
15 Q I'm going to ask you that keep
16 everything as it is on that pilot. We're
17 going to be requesting a full production of
18 it to the Court.
19 Now, did you use a computer at your
20 former position before you switched offices?
21 A I did.
22 Q Where is that computer today?
300
1 A It's with me at AFIS.
2 Q You moved it over?
3 A Yes.
4 Q Have you erased anything on that
5 computer?
6 A Oh, yes.
7 Q When did you make erasures of
8 documents on that computer?
9 A At the time that I moved everything
10 that I didn't need to bring over I deleted.
11 Q What kind of computer is this?
12 A It's a Dell dockable work station.
13 Q Is that owned by the Pentagon?
14 A It is.
15 Q Did you receive authorization to
16 delete material from that computer from
17 anyone?
18 MR. QUINLIVAN: Just a moment. You
19 want a proffer as to this question?
20 MR. KLAYMAN: The proffer is that
21 documents were deleted.
22 BY MR. KLAYMAN: