351
1 MR. KLAYMAN: Certify it.
2 BY MR. KLAYMAN:
3 Q So you think it's okay to reveal
4 that there's an investigation of Tripp but
5 not of yourself or Mr. Bacon? Is that your
6 position?
7 A Can I talk here?
8 (Witness conferred with counsel)
9 MR. QUINLIVAN: We will modify our
10 previous objection as to your question as to
11 whether there is an investigation as to the
12 witness and/or Kenneth Bacon about the
13 release of information.
14 The witness can testify as to
15 whether or not such an investigation is
16 taking place, but we're directing him not to
17 respond to any questions about the scope of
18 or anything further about the subject matter
19 of that investigation.
20 BY MR. KLAYMAN:
21 Q Is there such an investigation into
22 you and Mr. Bacon?
352
1 A There is.
2 Q Are others being investigated as
3 well?
4 A I do not know.
5 Q Who initiated that investigation?
6 Who requested it?
7 MR. QUINLIVAN: Now, that goes to
8 my objection and I object to that question.
9 MR. KLAYMAN: Certify it.
10 BY MR. KLAYMAN:
11 Q It says WHS, it says, "Gave DOC
12 Tripp's DD-398. This officially begins
13 investigation." So the fact that gave
14 the 398 to DOC initiated the investigation?
15 Is that you what meant?
16 A The fact that he has the form. I'm
17 a messenger here. I am not the initiator.
18 Took a piece of paper upstairs.
19 Q Bacon told you to do this?
20 A I don't -- I don't recall. It may
21 have been that I -- that I talked to DOC and
22 DOC asked for it. I can't recall.
353
1 Q So you don't remember whether Bacon
2 told you to do it or not?
3 A No.
4 Q It says, "WHS will formally
5 initiate the investigation." So DOC is
6 telling you that they're going to start the
7 investigation?
8 A Correct.
9 Q "Results will be adjudicated in
10 WHS." What is WHS?
11 A Washington Headquarter Services.
12 Q Who is the head of that?
13 A DOC.
14 Q These entries on the remainder of
15 the column, do any of them relate to Tripp or
16 Mayer, blacked out?
17 A I don't think so.
18 Q Going to the next column the
19 blacked out portion of the top, do any of
20 those entries relate to Tripp or Mayer?
21 A I don't -- I don't have any way of
22 knowing. I don't think so.
354
1 Q But you're not sure?
2 A I can't read it, so -- I do not
3 believe that they do.
4 Q But you're not sure?
5 A I think that's -- I'm not sure,
6 yes.
7 Q The entry 2:45 to 2:55, "Jane
8 Mayer, New Yorker reporter. Received a call
9 from Tucker Carlson of the Weekly Standard
10 questioning DOD's release of information from
11 Tripp's security form."
12 You received that call?
13 A I received the call from Jane
14 Mayer -- Mayer, yes.
15 Q She was telling you that she had
16 received a call from Tucker Carlson?
17 A Yes, yes.
18 Q You're just reporting what she told
19 you?
20 A Yes.
21 Q Then it says, "Mayer said Carlson
22 is a rabid anti-Clintonite." That's
355
1 accurate, correct?
2 A That's accurate.
3 Q "Wants to know how to respond.
4 Doesn't want to cause me any problems." Is
5 that accurate?
6 A That's accurate.
7 Q What did Jane Mayer say to you
8 about why she didn't want to cause you any
9 problems?
10 A She felt bad that -- that I was in
11 trouble from her perspective for releasing
12 the information. She felt somewhat
13 responsible.
14 Q Did you ask her well, why did you
15 ask me for it if you now feel bad about
16 getting me in trouble?
17 A No. She's a reporter. She did
18 what she -- what her job is supposed to be.
19 I'm a public affairs officers. I did what my
20 job was supposed to be.
21 Q Well, would that make sense to you,
22 that she would apologize for something that
356
1 was part of her job?
2 A I thought it was very human of her.
3 Q So is it your view, based on your
4 experience, that if someone asked you to do
5 something that is not right, it's okay to
6 just apologize for it?
7 A I never said that it wasn't right.
8 You said it wasn't right. I said that she
9 did exactly what she was supposed to do.
10 She's a reporter. She asked questions.
11 Q Secretary Cohen said it isn't
12 right, correct?
13 A You're not talking to Secretary
14 Cohen.
15 Q Did she tell you why she would tell
16 you that Carlson is a rabid anti-Clintonite?
17 A No.
18 MR. QUINLIVAN: I'll just note for
19 the record that this has been asked and
20 answered already on numerous occasions.
21 THE WITNESS: The answer is no.
22 BY MR. KLAYMAN:
357
1 Q Did you ask what she meant by that?
2 A No. To me it was a clear
3 statement.
4 Q Clear statement of what?
5 A That -- that she said that Carlson
6 is a rabid anti-Clintonite. That's clear.
7 Q Do you take that to mean that
8 Carlson hates Clinton?
9 A No.
10 Q Do you take that to mean that
11 Carlson --
12 A I'm sorry. That Carlson hates him?
13 Q Yes.
14 A I take that to mean that, yes. I
15 take that to mean that that's what Mayer
16 thinks about him.
17 Q Did you take that to mean that
18 Carlson is out of control?
19 A No. I never met Carlson.
20 Q I'm asking how you took that from
21 Carlson.
22 A If you recall, when I answered this
358
1 question earlier --
2 Q From Mayer rather.
3 A I said I took the information, this
4 was a -- a very short phone call, and I hung
5 up and went on to the next action.
6 Q Did you take that to mean that
7 Carlson is an irrational human being?
8 A I took it to mean nothing more than
9 what it is.
10 Q How did you respond?
11 A I said you have to do what you have
12 to do. You have to tell the truth and that's
13 all you can do.
14 Q Who is you?
15 A To Jane Mayer. I'm talking to Jane
16 Mayer in that conversation.
17 Q So you told her to cooperate with
18 Carlson?
19 A I told her to do what she has to
20 do. I don't care whether it's with Carlson
21 or anybody else.
22 Q Entry 3:30 to 3:45 p.m., do you see
359
1 the blacked out portion above that at 3:00
2 to 3:15?
3 A Uh-huh.
4 Q Does any of that relate to Tripp or
5 Mayer?
6 A I don't believe so.
7 Q Entry of 3:30 to 3:45, "Don Perkal,
8 re release of information about Tripp." Who
9 is Don Perkal?
10 A He's a lawyer.
11 Q Lawyer for who?
12 A Washington Headquarter Services.
13 Q Working under DOC Cooke?
14 A Correct. He actually works for the
15 personnel people, but, yes, under DOC Cooke.
16 Q Did you call him or did he call
17 you?
18 A I don't recall. Actually I believe
19 I called him.
20 Q Now, the blacked out entries for
21 the rest of this column and going into the
22 first column of page four those all relate to
360
1 Tripp, do they not?
2 MR. QUINLIVAN: Now, I'm going to
3 object to that. That is privileged
4 information subject to the attorney/client
5 privilege.
6 BY MR. KLAYMAN:
7 Q They all relate to Tripp, don't
8 they, all those blacked-out entries?
9 MR. QUINLIVAN: That information is
10 privileged. If you wish to challenge the
11 privilege, you have an available remedy. The
12 witness is directed not to respond to that
13 question.
14 MR. KLAYMAN: How is it I can't
15 even identify that it relates to Tripp?
16 Are you aware of the body of case
17 law that says I'm entitled to get general
18 subject matter on a claim of privilege?
19 Ms. Weismann, please don't
20 interrupt the deposition. You've been
21 talking throughout this entire deposition.
22 Are you aware of that case law,
361
1 that I'm entitled to identify?
2 MR. QUINLIVAN: The objection
3 stands.
4 MR. KLAYMAN: Certify it.
5 BY MR. KLAYMAN:
6 Q Going to page four, second column
7 five 5:45 p.m. to 6:00 p.m.
8 A I'm sorry. Are you still on page
9 three?
10 Q Page four.
11 A Page four. Okay.
12 Q Wherein it says 5:45 p.m.
13 to 6:00 p.m., Tucker Carlson, does that mean
14 Tucker Carlson called you?
15 A Yes.
16 Q It says, "Questions about release
17 of information concerning Tripp. Was this
18 release consistent with our policies or was
19 it only because we were persecuting a certain
20 individual."
21 Is that a correct statement of what
22 Carlson asked you?
362
1 A Yes.
2 Q What did you respond?
3 A I said that we release
4 information -- that we do not release
5 information to persecute anybody, that we are
6 trying to act as impartially as possible and
7 that this is -- this release is consistent
8 with the information that we release -- that
9 we have released previously.
10 Q It says, "Explained normal
11 procedures." What were those normal
12 procedures you explained?
13 A Just as I -- I just said it.
14 Q Then it says, "Explained that we
15 try to be responsive." Does that mean you
16 release everything?
17 A No, it means that we try to be
18 responsive.
19 Q What does responsive mean to you?
20 A It means that we try to do --
21 assist the reporters in getting information
22 and we try to be responsive to them.
363
1 Q It then says, "If this isn't a
2 special case, he requests the same
3 information on Bacon and Cohen."
4 A Correct.
5 Q What did that mean?
6 A He was testing the system. So he
7 said well, then he would like to know the --
8 how Cohen and -- and Bacon answered those two
9 questions on their 398s.
10 Q "Told him to fax me a FOI request."
11 Is that what you said?
12 A Yes.
13 Q He then faxed you a FOI request?
14 A He did.
15 Q Did you release information on
16 Bacon?
17 MR. KLAYMAN: He's already
18 testified to that.
19 MR. QUINLIVAN: He has.
20 THE WITNESS: I did not at that
21 time. The -- I had to locate the 398, so I
22 had to go back to the same people that I went
364
1 back to on this Ms. Tripp and get the 398.
2 So I did not have the information by close of
3 business that night. Mainly -- mainly
4 because the people who had it, it was already
5 after 6 o'clock and they weren't there.
6 BY MR. KLAYMAN:
7 Q Did you subsequently get that 398
8 for Ken Bacon?
9 A I did.
10 Q You provided the information to
11 Mr. Carlson?
12 A I did. Actually the -- I did not
13 personally. The Director for Defense
14 Information, Dick Bridges, did.
15 Q He called Carlson back?
16 A Yes.
17 Q Did you ask him to do that?
18 A Yes.
19 Q Why didn't you call him back?
20 A I was doing other things.
21 Q That was what you previously
22 testified to, that you got Bacon's
365
1 authorization to send it out?
2 A Yeah. The main thing that I had to
3 get was the form itself, but at the time I --
4 at the time Mr. Bacon was traveling, so
5 during one of the phone calls that he makes
6 frequently back to us I mentioned that we had
7 had that -- that call and at that time he
8 said no problem.
9 Q Asked for his approval to send it?
10 A Actually I did not ask for his
11 approval to send it. I told him that we had
12 this request from Tucker Carlson. He had
13 asked for the information on you and
14 Secretary Cohen and -- and he views this as a
15 test of the system and Mr. Bacon said I don't
16 have any problem with you releasing it.
17 Q But you felt you owed him the
18 Courtesy of letting him know that Carlson had
19 requested it?
20 A Actually, no, because had I not --
21 had I not talked to him I would have released
22 it. But as long as I'm talking to him and
366
1 I'm updating him on -- on media incidents,
2 absolutely.
3 Q Did you obtain a 398 of Secretary
4 Cohen?
5 A No.
6 Q Did you make any effort to get it?
7 A Yes.
8 Q Why didn't you get the 398 on
9 Secretary Cohen?
10 A Because it does not --
11 MR. QUINLIVAN: I'm going to object
12 to this. This, again, goes well beyond the
13 scope of anything that's relevant to the
14 issues at hand.
15 MR. KLAYMAN: It's in here.
16 MR. QUINLIVAN: No, no. The fact
17 that the witness attempted to get it, no,
18 we're objecting to that.
19 BY MR. KLAYMAN:
20 Q You can respond.
21 MR. QUINLIVAN: No, we're directing
22 the witness not to respond.
367
1 MR. KLAYMAN: Certify it.
2 BY MR. KLAYMAN:
3 Q Secretary Cohen directed you not to
4 release his 398 information?
5 MR. QUINLIVAN: I'm objecting to
6 that question as well.
7 BY MR. KLAYMAN:
8 Q Next page, entry at 9:00 a.m.
9 to 9:20 it says, "Passarella, Tripp and
10 security information."
11 Do you see where information is
12 blacked out above that?
13 A I'm sorry. What page were you on?
14 Q Do you see where information is
15 blacked out above that?
16 A Can you tell me again what page
17 you're on?
18 Q Page five.
19 A Oh, Passarella, uh-huh.
20 Q There is information blacked out
21 above it. Does that relate to Tripp?
22 A No.
368
1 Q Who is Passarella?
2 A Director of Freedom of Information
3 and Security Review.
4 Q It says, "Tripp and security
5 information." What does that mean, that
6 entry?
7 A I briefed him at that time on
8 the -- on the information that I had
9 released.
10 Q Why did you do that?
11 A Because I wanted to make sure that
12 he was aware of it and I wanted to make sure
13 that if there was a problem with the release,
14 that the proper people were informed in the
15 Pentagon.
16 Q Are you friends with Passarella?
17 A Passarella worked for me.
18 Q In what capacity?
19 A He was a director and was one of
20 the directorates that reported to me.
21 Q The information that's blacked out
22 below this, does it relate to Tripp?
369
1 A Yes.
2 Q Turning to the second column entry
3 at 11:30 to 12:00 p.m., who is Stew Aly?
4 A He is a lawyer for Department of
5 Defense.
6 Q It says, "With Don Perkal, Tony
7 Passarella, Charlie Talbott." Why were you
8 in contact with them at that time?
9 A It was a continuation of the
10 meeting I had earlier with Passarella and it
11 was my -- again, I wanted people to know
12 exactly what I had done, why I had done it
13 and if -- and if there was a problem with it,
14 I wanted to make sure that it was in the
15 proper channels.
16 Q Done in what respect, Tripp's
17 information?
18 A Yes, when I released the
19 information.
20 Q Now, you never answered the
21 question. Passarella is a friend of yours,
22 isn't he?
370
1 A He is -- he works for me. I
2 answered the question.
3 Q But he's also your friend isn't he?
4 A I do not do anything socially with
5 him. I like him, but I do not consider him a
6 friend in the -- in the civilian sense.
7 Q You're not close with him?
8 A He works for me. He is an employee
9 of mine. That's the answer.
10 Q You're saying you have never had
11 lunch with him?
12 A I'm saying he works working for me,
13 he's an employee of mine. I like the man.
14 Q Have you had lunch with him?
15 A Actually I don't believe I have.
16 Q Have you ever been out to dinner
17 with him?
18 A I may have in an organization, but
19 the fact is that you can -- you can draw this
20 any way you want, but he's not a friend of
21 mine and he is an employee of mine.
22 Q Moving to the entry on page six,
371
1 second column, 3/18/98 11:20 to 11:40 Tyrer,
2 T-y-r-e-r. Who is Tyrer?
3 A He's Secretary of Defense's Chief
4 of Staff.
5 Q It says, "Re release of information
6 on Tripp. Releasing the information was
7 gross stupidity." Did he tell you it was
8 gross stupidity?
9 A He did.
10 Q What else did he tell you?
11 A He told me, basically, what's in
12 this paragraph here.
13 Q He told you it was illegal, too,
14 didn't he?
15 A No, I don't believe he did. I
16 don't -- I don't believe he did.
17 Q What specifically did he say?
18 A This is as much as I -- I remember.
19 I wrote this down almost as soon as the
20 meeting was over.
21 Q How is it that you came into
22 contact with Tyrer?
372
1 A He called me up to his office.
2 Q He summoned you to his office?
3 A He did.
4 Q He was angry?
5 A He was.
6 Q Was anyone else present during the
7 meeting?
8 A Doug Wilson was.
9 Q Did he say anything to Doug Wilson?
10 A He had already expressed his
11 displeasure to Doug Wilson in a separate
12 meeting.
13 Q Tell me everything that was said
14 during that meeting by Mr. Tyrer.
15 A It's -- it's here. He said that it
16 was stupid. He didn't -- he was -- he was
17 upset that the information was out there. He
18 was also upset that nobody had informed him
19 about it.
20 Q Did he tell you whether or not the
21 Secretary of Defense knew about it?
22 A At a -- at a talk show or on
373
1 some -- actually in -- in the papers that you
2 have the quote that I -- I had from the
3 Secretary of Defense on -- after one of his
4 meetings, it's in your packet, that was a
5 surprise question to him. He had not known
6 about it before then. When the question
7 came, it took him completely by surprise.
8 That's why Tyrer was upset.
9 Q What talk show was that?
10 A It's in the package here. It was
11 on page 60, the National Press Club speech.
12 This question came as a result of that.
13 Q It says here, "Releasing my name
14 was gross stupidity." What is meant by my
15 name? Is that something else Tyrer said?
16 A No, he was referring to the release
17 of my name. Normally that would have been
18 left as Department of Defense official
19 released this information. My name was
20 released and he did not think that was
21 correct.
22 Q Who released your name?
374
1 A Colonel Dick Bridges.
2 Q Do you know how it was released?
3 A Dick made an assumption because by
4 that time a very few people were -- were
5 trying to -- to say that this was a White
6 House conspiracy. Dick thought by releasing
7 my name and the fact that I was a career
8 civil servant, who had no ax to grind, who
9 has no political affiliations whatsoever, who
10 is a career military officer, would dispel
11 the erroneously false information that had
12 anything to do with the White House.
13 Q So Tyrer was complaining that the
14 stupidity here was that your name was given?
15 A Tyrer's main concern was that the
16 Secretary of Defense was surprised at a press
17 conference. That's bad.
18 Q But he wasn't concerned that the
19 Tripp information was released, just that
20 your name was given out?
21 A He was -- well, the first paragraph
22 is that he was concerned about the Tripp
375
1 information. Releasing it was gross
2 stupidity. I'd say that was upset.
3 Q He expressed the fact that it was
4 stupidity to release your name is that now
5 there was somebody who could actually be
6 questioned about releasing this information,
7 his name was out there, correct?
8 A No, that's -- that's not true.
9 That's not why he was upset. He was upset
10 because that's not what we do usually.
11 Q What you do usually is not release
12 anybody's name, correct?
13 A No, that's not true.
14 Q What you do usually is cover up it
15 up, correct?
16 A That's not true.
17 Q Then what do you usually do?
18 A Normally we attribute this type of
19 information to a defense official.
20 Q Weren't a defense official?
21 A I was a defense official.
22 Q Then what was wrong with releasing
376
1 your name?
2 A Normally we -- we attribute to a
3 defense official. We not attribute to names.
4 In my opinion, Dick's logic was -- was good.
5 I was not mad at Dick.
6 Q Well, in fact, if Dick's advice had
7 been heeded, no one would known that you were
8 the one that released it, correct?
9 A I'm sorry. If Dick's advise --
10 Q If Tyrer's arguments had been
11 accepted that you shouldn't have had your
12 name released, no one would have known it was
13 you?
14 A They probably would have. If
15 somebody would have asked, we would have said
16 who the defense official was.
17 Q Well, apparently they did ask,
18 correct?
19 A Correct. Well, actually he
20 volunteered the information. That's what was
21 different.
22 Q Then it says, "Talked him through
377
1 sequence of events and rationale. While in
2 hindsight the release looks stupid, at the
3 time it was just another small piece of
4 information not totally different from
5 releasing her performance ratings, pay, date
6 of next review, level of security clearance.
7 As soon as I discovered there might be a
8 problem, I alerted the lawyers and the FOI
9 privacy experts. No attempt to hide or cover
10 up my actions."
11 Is that what you said at this
12 meeting?
13 A That is what I said at that
14 meeting.
15 Q So in your belief releasing
16 information about Ms. Tripp's arrest record
17 is no different than releasing information
18 about her?
19 A Once again, I released no
20 information about her arrest record. You can
21 say that any way you want. There was no
22 release about her arrest record. This is
378
1 false. This is not true. This is another
2 falsehood.
3 Q You told Mayer that she had written
4 not arrested, correct?
5 A No.
6 MR. QUINLIVAN: I'm going to object
7 and admonish that the witness is not allowed
8 to respond to the specific information that
9 was released subject to my earlier objection.
10 MR. KLAYMAN: Certify it.
11 BY MR. KLAYMAN:
12 Q What did Wilson say during that
13 meeting?
14 A He was silent.
15 Q Was he taking notes?
16 A No.
17 Q You were taking notes though,
18 weren't you?
19 A No.
20 Q Tyrer was taking notes, wasn't he?
21 A No.
22 Q Was there a recordation device?
379
1 A No.
2 Q It's common practice in the
3 Department of Defense to record meetings,
4 isn't it?
5 A It is not.
6 Q It's your common practice, isn't
7 it?
8 A It is not.
9 Q Do you own that tape recorder?
10 A I do not.
11 Q Whose is it?
12 A This belongs to the Department of
13 Defense.
14 Q Who did you get it from?
15 A I got it from the immediate office
16 of the assistant Secretary of Defense.
17 Q Who did you go to get it?
18 A My former secretary.
19 Q Who is that?
20 A Mr. Huffman.
21 Q That isn't a personal tape
22 recorder, is it?
380
1 MR. QUINLIVAN: Counsel six hours
2 has now elapsed.
3 MR. KLAYMAN: Well, I know you're
4 smiling, but it hasn't elapsed, in fact,
5 because we have at least 20 minutes.
6 MR. QUINLIVAN: No, we don't.
7 MR. KLAYMAN: The reason we have 20
8 minutes left is that we took 20 minutes up
9 with a call to the Court.
10 MS. WEISMANN: No, we don't.
11 MR. KLAYMAN: And this was not
12 testimony. It's our position we have at
13 least 20 minutes left in terms of this
14 initial six-hours session.
15 Are you walking out, Ms. Weismann?
16 MS. WEISMANN: We're concluding the
17 deposition. By the order of the Court, we're
18 required to make him available for six hours.
19 We've made him available for the required six
20 hours and we're now concluding the
21 deposition. If you want to proceed beyond
22 that, you're going to have to seek leave of
381
1 the Court.
2 MR. KLAYMAN: Our position is we do
3 not have six hours of testimony here, that
4 you have put frivolous objections in front of
5 the Court, you've read back testimony to try
6 to run off the clock and this will be part of
7 our motion for sanctions. The deposition is
8 left open.
9 MS. SHAPIRO: We object to the
10 deposition being left open.
11 MS. WEISMANN: The deposition, from
12 our perspective, we satisfied our obligation
13 and it's closed.
14 MR. KLAYMAN: I know, Ms. Weismann,
15 that your concept, your ability to judge for
16 the Court what those obligations are continue
17 to the present. Unfortunately it's the Court
18 that makes the rules, not you.
19 VIDEOGRAPHER: We're going off
20 video record at 7:34 p.m.
21 (Discussion off the record)
22 MR. KLAYMAN: Just let the record
382
1 reflect it's the plaintiffs' position that
2 the defendant and witness are walking out of
3 this deposition in violation of a court
4 order.
5 MR. QUINLIVAN: Let the record also
6 reflect that I had a stop watch on this
7 deposition. Six hours is now concluded. The
8 deposition is concluded.
9 MR. KLAYMAN: It will be quite easy
10 to figure out the time.
11 (Whereupon, at 7:37 p.m., the
12 deposition of CLIFFORD H.
13 BERNATH was adjourned.)
14 * * * * *