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_____________________________________ CARA LESLIE ALEXANDER, et al., Plaintiffs, vs. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants. _____________________________________ |
) ) ) ) ) ) Civil No. 96-2123/97-1288 (RCL) ) ) ) ) ) |
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Video Deposition
WILLIAM H. KENNEDY, III
At Instance of Plaintiffs
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APPEARANCES:
FOR THE PLAINTIFFS:
LARRY KLAYMAN, ESQ.
Judicial Watch, Inc.
501 School Street, S.W., Suite 725
Washington, D.C. 20024
202.646.5172
FOR THE DEFENDANTS:
JAMES J. GILLIGAN, ESQ.
U.S. Department of Justice
901 E Street, N.W., Room 816
Washington, D.C. 20004
202.514.3358
SALLY PATRICIA PAXTON, ESQ.
Special Associate Counsel to the President
The White House
202.456.5079
TIM BOE, ESQ.
Rose Law Firm
120 East Fourth Street
Little Rock, Arkansas 72201
**************************************************************
TITLE PAGE CONTINUED
APPEARANCES CONTINUED:
FOR THE DEFENDANTS:
PAUL GAFFNEY, ESQ.
Williams & Connolly
725 12th Street, N.W.
Washington, D.C.
202.434.5803
ROBERT B. MAZUR, ESQ.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019-6618
212.403.1000
ALSO PRESENT:
Thomas J. Fitton, Judicial Watch
Ed Hill
Date: Thursday, October 15, 1998
Time: 9:53 a.m.
Place: 1701 South Arch Street
Little Rock, Arkansas
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C A P T I O N
WILLIAM KENNEDY, III, the witness, appeared before
Jacqueline C. Marvin, a Notary Public within and for the
County of Pulaski, State of Arkansas, at the time and place
3
heretofore stated; at which time, an Oral Deposition was taken
in a certain cause now pending, as styled on Page One, by
agreement of counsel, in accordance with the Federal Rules of
Civil Procedure.
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S T I P U L A T I O N S
It is hereby stipulated and agreed by and between
the parties, hereto by counsel, that all formalities as to the
taking of said deposition are hereby waived; that all
objections as to relevancy, materiality and competency are
expressly reserved and may be raised if and when said
deposition, or any part thereof, is offered at the trial of
said cause.
4
TABLE OF CONTENTS
EXAMINATION BY MR. KLAYMAN 6
Exhibit No. 1 - Subpoena 7
Exhibit No. 2 - 10/9/98 letter Klayman to Martin 7
Exhibit No. 3 - EOP Privilege Log 19
Exhibit No. 4 - Kennedy Privilege Log 19
Exhibit No. 5 - 6/28/96 14-pg fax Mills to Kennedy 20
Exhibit No. 6 - Subpoena, Congress 21
Exhibit No. 7 - 6/28/96 e-mail Robison to Kennedy 22
Exhibit No. 8 - 6/21/96 e-mail Plummer to Kennedy 22
Exhibit No. 9 - Fax Wachtell to Kennedy 22
Exhibit No. 10 - New York Times clip 7/1/96 23
Exhibit No. 11 - Wall Street Journal clip 23
Exhibit No. 12 - Washington Times clip 7/8/96 23
Exhibit No. 13 - New York Times clip 6/30/96 24
Exhibit No. 14 - Independent Newspaper clip 24
Exhibit No. 15 - West Wing sketch 84
Exhibit No. 16 - OEOB sketch 87
Exhibit No. 17 - OEOB sketch, Kennedy office 129
Exhibit No. 18 - Search request 211
Exhibit No. 19 - OPS log 212
Exhibit No. 20 - News clips 240
Exhibit No. 21 - JCS Task List 12/13/94 243
Exhibit No. 22 - SCI Clearances 249
Exhibit No. 23 - Memorandum Livingstone to Kennedy 260
Exhibit No. 24 - 2/10/94 Clinton letter to Marceca 282
EXAMINATION BY MR. GILLIGAN 268
EXAMINATION BY MR. KLAYMAN 280
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5
1 THE VIDEOGRAPHER: We're going on the record.
2 Today is October 15th, 1998. The time is 9:53 a.m.
3 This is the video-taped deposition of Mr. William
4 Kennedy. Case Nos. 96-2123 and 97-1288.
5 My name is Bill Gregg. I'm the certified legal
6 videographer from Legal Video & Communications, 2915
7 Kavanaugh, Little Rock, Arkansas.
8 We're at 1701 South Arch Street in Little Rock,
9 Arkansas, at Hendrix Court Reporting.
10 Counsel, beginning on camera right, would you please
11 identify yourselves for the camera?
12 MR. KLAYMAN: My name is Larry Klayman. I'm
13 chairman and general counsel of Judicial Watch, panning to me
14 right now.
15 MR. FITTON: My name is Tom Fitton, President,
16 Judicial Watch.
17 MR. BOE: My name is Tim Boe with the Rose Law Firm.
18 And I represent Mr. Kennedy in his personal capacity.
19 MR. GILLIGAN: James Gilligan with the Department of
20 Justice representing EOP and the FBI.
21 MS. PAXTON: Sally Paxton with The White House.
22 MR. MAZUR: Robert Mazur. I represent Bernard
23 Nussbaum.
24 MR. GAFFNEY: Paul Gaffney. I represent the First
25 Lady.
6
1 WILLIAM H. KENNEDY, III,
2 the witness, having been first duly sworn, was examined and
3 testified as follows:
4 EXAMINATION
5 BY MR. KLAYMAN:
6 Q Will you please state your name?
7 A William Holder Kennedy, III.
8 MR. KLAYMAN: Just let the record reflect that we're
9 beginning this deposition at 9:50. It was originally
10 scheduled for 9:30.
11 MR. GILLIGAN: Okay. Why don't we get an exact time
12 from the videographer, Mr. Klayman?
13 THE VIDEOGRAPHER: The camera time is 9:55. It runs
14 a little fast. I apologize.
15 MR. KLAYMAN: I don't have any objection that we
16 started late. I just wanted it noted that we were waiting for
17 Mr. Kennedy and Counsels' arrival from the Rose Law Firm.
18 BY MR. KLAYMAN:
19 Q Mr. Kennedy, where were you born?
20 A Mr. Klayman, I'd like to request that personal
21 information be provided to you off the record, if you don't
22 mind.
23 Q I don't understand why where you were born would
24 have anything to do with personal information. That's a
25 matter of public record.
7
1 A It is if somebody's searching for it. But I'll be
2 glad to give you the information. I understand these
3 depositions --
4 Q We're not going to ask on the record for your home
5 address or anything like that.
6 A Okay. I was born in Pine Bluff, Arkansas.
7 Q I'll show you what I'll ask the court reporter to
8 mark as Exhibit 1.
9 {The document referred to was marked for
10 identification as Deposition Exhibit No. 1,
11 and is attached.}
12 Q This is a Subpoena Duces Tecum, which was served
13 upon you on or about September 22nd, 1998, or shortly
14 thereafter.
15 Have you seen that subpoena before, Mr. Kennedy?
16 A Mr. Klayman, give me a minute to read it, please,
17 sir.
18 Yes, I've seen this before.
19 Q This is the subpoena that was served upon you?
20 A It appears to be, yes, sir.
21 MR. KLAYMAN: I will ask the court reporter to mark
22 as Exhibit 2 -- we don't have extra copies of this, but I
23 don't think anybody will have any problem with it -- a copy of
24 a letter that I sent to Mr. Martin on October 9, 1998, which
25 narrowed the scope of one of the document requests in that
8
1 subpoena.
2 {The document referred to was marked for
3 identification as Deposition Exhibit No. 2,
4 and is attached.}
5 MR. KLAYMAN: Can we perhaps just stipulate that
6 that was a letter I sent to Mr. Martin --
7 MR. GILLIGAN: If I can just take 2 seconds to look
8 at it, I think --
9 MR. KLAYMAN: Sure.
10 MR. GILLIGAN: -- that probably won't be a problem.
11 MR. KLAYMAN: Thank you.
12 BY MR. KLAYMAN:
13 Q Prior to appearing here today, Mr. Kennedy, have you
14 discussed your deposition in this lawsuit with anyone?
15 A Other than my counsel, no.
16 Q Who is your counsel?
17 A I have a raft of them. Mr. Boe represents me in my
18 personal capacity. And the Department of Justice represents
19 me in my official capacity.
20 Q I take it you've discussed your deposition here
21 today with both of those counsel?
22 A Yes, sir.
23 Q When did those discussions take place? Let's start
24 with the Department of Justice counsel.
25 A Commencing with the serving of the subpoena upon me.
9
1 Q And who at the Department of Justice did you speak
2 with?
3 A Mr. Gilligan.
4 Q He is your counsel?
5 A Yes.
6 Q Was there anyone else at the Justice Department who
7 is your counsel that you spoke with?
8 A I have only spoken with Mr. Gilligan about these
9 matters.
10 Q Prior to appearing here today did you meet with
11 Mr. Gilligan?
12 A I met with him yesterday.
13 Q Where did you meet with him?
14 A Rose Law Firm.
15 Q How long did you meet with him?
16 A Two (2) hours, maybe.
17 Q Was anyone else present during the meeting?
18 A Sally Paxton from the White House.
19 Q Sally Paxton, your former colleague in the White
20 House Counsel's Office?
21 A I'm not sure if Sally and I's tenure overlapped or
22 not. I don't think we did.
23 Q That's where you worked, correct?
24 A Yes. I worked in the White House Counsel's Office.
25 Q Was anyone else present during that meeting?
10
1 A Mr. Boe.
2 Q Who is your counsel from the Rose Law Firm?
3 A That is correct.
4 Q Anyone in addition to those three?
5 A No, sir.
6 Q Have you had any discussions about your deposition
7 with anyone else?
8 A Just my lawyers.
9 Q Any discussions other than yesterday?
10 A The only people I've talked to are the people that
11 I've previously identified, my counsel.
12 Q Well did you have discussions other than yesterday
13 with those individuals that you identified?
14 A We've had several telephone conversations, yes.
15 Q How many have you had?
16 A I'm not sure. More than five, but probably less
17 than 15. I'm not sure.
18 Q On each of those telephone conversations was
19 Mr. Gilligan and Ms. Paxton present, as well as your counsel
20 at Rose?
21 A I don't think that each was on every conversation.
22 But generally they were.
23 Q And about how much time was expended in those five
24 conversations?
25 A I'm sorry --
11
1 Q Roughly speaking.
2 A Roughly speaking, maybe -- are you talking about an
3 aggregate amount of time for the five?
4 Q Yes.
5 A Forty-five (45) minutes, maybe.
6 Q Forty-five (45) minutes for all five?
7 A Yes, sir.
8 Q Before your deposition today did you have an
9 opportunity to review any materials?
10 A I reviewed materials to produce documents responsive
11 to the subpoena.
12 Q Other than reviewing materials to produce documents
13 responsive to the subpoena, did you review any other
14 materials?
15 MR. GILLIGAN: I would caution the witness not to
16 reveal any privileged matters in responding to this question.
17 I think the question calls for a yes-or-no answer.
18 MR. KLAYMAN: I would ask that you not intervene in
19 my questioning. I'm not asking for the content; I'm just
20 asking for generically what was reviewed.
21 MR. GILLIGAN: I've instructed the witness to answer
22 yes or no to that question on the grounds of attorney/client
23 privilege and work product, Mr. Klayman.
24 MR. KLAYMAN: Certify this.
25 THE WITNESS: The answer is yes. They were
12
1 materials provided by my counsel.
2 BY MR. KLAYMAN:
3 Q And could you identify by date, author, and subject
4 matter what you reviewed?
5 MR. GILLIGAN: Objection. The question calls for
6 matters that are privileged under the attorney/client
7 privilege and the work product doctrine.
8 And I instruct the witness not to answer.
9 MR. KLAYMAN: Are you saying, for instance, if he
10 reviewed prior depositions or prior testimony that he gave
11 that that would be privileged?
12 MR. GILLIGAN: Yes, I am.
13 MR. KLAYMAN: That's public?
14 MR. GILLIGAN: Yes, I am.
15 MR. KLAYMAN: Certify it.
16 Do you understand, Court Reporter, what I mean by
17 certify?
18 THE VIDEOGRAPHER: Yeah.
19 MR. KLAYMAN: It means mark that part of the
20 transcript where this impasse has arisen.
21 MR. GILLIGAN: Let me clarify, so long as you are
22 talking about, as the record would reflect that you are,
23 talking about documents that were provided to him by his
24 counsel for purposes of review or discussed with him by his
25 counsel for purposes of the deposition, then, yes, that's
13
1 privileged.
2 MR. KLAYMAN: Let me ask a few questions and see how
3 broad your instruction is, Mr. Gilligan.
4 MR. GILLIGAN: Fine.
5 MR. KLAYMAN: And I do caution you, because
6 obviously this deposition is an expensive proposition, and if
7 it is obstructed it will be quite costly should the Court
8 award attorneys fees and costs.
9 MR. GILLIGAN: Your threats of sanctions are
10 improper, Mr. Klayman.
11 MR. KLAYMAN: They're not threats. I mean,
12 obviously this has been a course of conduct throughout this
13 case where on record in terms of your conduct and the conduct
14 of others.
15 I just don't want to have to come back here again
16 and expend valuable resources for objections which are not
17 meritorious.
18 MR. GILLIGAN: My privilege instructions will not
19 require that, Mr. Klayman. Why don't you ask the questions.
20 BY MR. KLAYMAN:
21 Q Did you review prior public testimony that you'd
22 given before Congress?
23 MR. GILLIGAN: Objection. Attorney/client
24 privilege, work product.
25 I instruct the witness not to answer.
14
1 MR. KLAYMAN: Certify it.
2 BY MR. KLAYMAN:
3 Q Did you review documents provided to you by your
4 Department of Justice counsel?
5 MR. GILLIGAN: Hold on a moment.
6 {Reporter's Note: Mr. Gilligan confers with
7 Ms. Paxton outside the hearing of the reporter.}
8 MR. GILLIGAN: I'll allow the witness to answer yes
9 or no whether he reviewed documents that were provided by his
10 counsel.
11 THE WITNESS: Yes.
12 BY MR. KLAYMAN:
13 Q By author and general subject matter, what documents
14 were provided?
15 MR. GILLIGAN: Objection. Attorney/client
16 privilege, work product.
17 I instruct the witness not to answer.
18 MR. KLAYMAN: Certify it.
19 BY MR. KLAYMAN:
20 Q Have you produced documents in response to the
21 subpoena?
22 A I have.
23 Q May I please see them?
24 MR. BOE: Can we go off the record just a second,
25 please?
15
1 MR. KLAYMAN: Let's mark when we go off the record,
2 because the time doesn't count.
3 THE VIDEOGRAPHER: We're going off the record.
4 MR. GILLIGAN: At?
5 THE VIDEOGRAPHER: 10:0 --
6 We're back on the record, but we're going back off
7 the record. The time is 10:05.
8 MR. GILLIGAN: Thank you, sir.
9 We'll need all the stop and start times. That's a
10 matter of critical importance to all of us.
11 {Reporter's Note: At 10:05 a.m., the reporter was
12 asked to go off the record; testimony resumed at 10:07 a.m.}
13 THE VIDEOGRAPHER: We're going back on the record.
14 The time is 10:07.
15 MR. GILLIGAN: Okay. Mr. Klayman, Mr. Kennedy
16 indeed has documents to produce to you in response to your
17 subpoena.
18 Along those lines let me say the following: One of
19 the documents in Mr. Kennedy's possession that is responsive
20 to your subpoena, the Executive Office of the President is
21 asserting attorney/client and work product privilege over.
22 Let the record reflect that I am providing you now,
23 sir, with a copy of EOP's privilege log describing the
24 document in question. And I will provide a copy to
25 Mr. Kennedy's counsel and to counsel for the First Lady and
16
1 Mr. Nussbaum.
2 There is another document in Mr. Kennedy's
3 possession that the EOP is prepared to produce to you at this
4 moment, Mr. Klayman, so long it is understood that neither you
5 nor the plaintiffs will ever argue in this or any other matter
6 that the production of this document constitutes a waiver of
7 any kind of privilege.
8 MR. KLAYMAN: What is the document by date, author,
9 and general subject matter?
10 MR. GILLIGAN: It is a facsimile transmission dated
11 June 28th, 1996, to William Kennedy from Cheryl Mills,
12 regarding -- it's a 14-page fax regarding the FBI Files
13 matter.
14 MR. KLAYMAN: Why would this be produced and you
15 would not produce the document that has been listed on your
16 privilege log? What's the distinction anyway?
17 MR. GILLIGAN: Well, Mr. Klayman, I don't think we
18 need to start doing an analysis of whether particular
19 documents are or are not privileged.
20 The point of my proffer is so that we can dispense
21 with any arguments over that sort of thing.
22 We are prepared to give you this document. We just
23 want an assurance that you're not going to be someone who's
24 claiming that this is a privileged document whose production
25 constitutes a waiver of any kind.
17
1 MR. KLAYMAN: Would you be willing to submit the
2 document that's listed on the privilege log, which I'll ask be
3 marked as Exhibit 3, in camera to the Court for its review?
4 MR. GILLIGAN: If the Court asks us to do so,
5 Mr. Klayman, then we will of course abide by the Court's
6 request. We've been down this road before.
7 MR. KLAYMAN: Would you be willing to provide that
8 without having to go through briefing with the Court, and save
9 the Court some time and expense?
10 MR. GILLIGAN: Mr. Klayman, if you want to file a
11 motion for in camera inspection of the one document that's
12 described on our privilege log, that is of course your affair.
13 If you want this document I hold in my hand right now, that is
14 of course your affair.
15 If you don't want it, if you're not wiling to
16 stipulate, as we have done before in several of these
17 depositions, that you won't take my willingness to produce
18 this document to you and use it against me and my client by
19 claiming there's any sort of a waiver, then you can have this
20 right now.
21 MR. KLAYMAN: I won't use it with regard to that
22 document. I won't claim there's a waiver with regard to that
23 document. But I reserve my right to argue that the document
24 withheld is listed in the privilege log is not covered by any
25 type of privilege.
18
1 MR. GILLIGAN: I'm willing to stipulate with you
2 that that document on the privilege log and this document
3 here, that I'm prepared to hand to you this moment, are
4 completely separate and distinct. They implicate separate and
5 distinct questions of privilege because they are separate and
6 distinct documents.
7 MR. KLAYMAN: I'll take your proffer on that, and I
8 will not assert with regard to this document that you've
9 waived it with regard to that document.
10 MR. GILLIGAN: Wait a minute. I'm sorry. I'm
11 confused.
12 The document on the privilege log --
13 MR. KLAYMAN: I will not assert that by your
14 producing this to me, the document that you're offering, that
15 you've waived the privilege which you maintain --
16 MR. GILLIGAN: Okay, we're talking --
17 MR. KLAYMAN: -- in Exhibit 1.
18 MR. GILLIGAN: -- about any waiver. You're not
19 going to claim that the production of this document
20 constitutes a waiver of any kind, the document I hold in my
21 hand.
22 MR. KLAYMAN: I'm not claiming that.
23 MR. GILLIGAN: Okay.
24 You may have it.
25 MR. FITTON: Do you want to mark it?
19
1 MR. KLAYMAN: Yes. Mark the Executive Office of the
2 President Privilege Log.
3 {The document referred to was marked for
4 identification as Deposition Exhibit No. 3,
5 and is attached.}
6 BY MR. KLAYMAN:
7 Q Mr. Kennedy, in responding to the subpoena --
8 MR. BOE: I'm sorry, Mr. Klayman. We've also got a
9 privilege log and some documents that we will be claiming the
10 attorney/client and work product privilege, if I might hand
11 you a copy.
12 MR. KLAYMAN: I'll ask that this privilege log
13 produced by the private counsel of William Kennedy be marked
14 as Exhibit 4.
15 {The document referred to was marked for
16 identification as Deposition Exhibit No. 4,
17 and is attached.}
18 MR. KLAYMAN: I take it, Mr. Boe, that you're not
19 producing any documents, just the privilege log -- you as
20 private counsel for Mr. Kennedy?
21 MR. BOE: Not at this time. We are -- may I go off
22 the record for a moment, please?
23 THE VIDEOGRAPHER: We're going off the record, the
24 time is 10:12.
25 {Reporter's Note: At 10:12 a.m., the reporter was
20
1 asked to go off the record; testimony resumed at 10:16 a.m.}
2 THE VIDEOGRAPHER: We're going back on the record.
3 The time is 10:16.
4 MR. KLAYMAN: Mr. Boe?
5 MR. BOE: Yes, sir?
6 MR. KLAYMAN: I take it, you're not producing any
7 documents other than the privilege log?
8 MR. BOE: That's correct, sir.
9 MR. GILLIGAN: Now that's not correct. The witness
10 just produced in his personal capacity documents to you.
11 MR. KLAYMAN: I haven't seen any documents --
12 MR. GILLIGAN: You're holding them. They are in
13 your right hand.
14 MR. KLAYMAN: Are these the same documents that were
15 produced by Government counsel?
16 MR. GILLIGAN: No. The Government produced that one
17 document to you, subject to our stipulation --
18 MR. KLAYMAN: All right. Well let's mark it then.
19 This is a document, a facsimile from the White
20 House, to Bill Kennedy from Cheryl Mills, dated June 28th,
21 1996, cover sheet.
22 It says, "Please call Cheryl after you have reviewed
23 this." And it appears to have attached a portion of the book
24 Unlimited Access, written by Gary Aldrich. I ask that that be
25 marked as Exhibit 5.
21
1 {The document referred to was marked for
2 identification as Deposition Exhibit No. 5,
3 and is attached.}
4 MR. KLAYMAN: And I'll ask that attached as
5 Exhibit 6, or marked as Exhibit 6, is a document which was
6 produced by Government counsel. It says on the top, "By
7 Authority of the House of Representatives" --
8 MR. GILLIGAN: Incorrect. You hold in your hand
9 Mr. Kennedy's personal production. All of these in fact were
10 produced by Mr. Kennedy --
11 MR. KLAYMAN: All right.
12 MR. GILLIGAN: -- and were all documents from his
13 production.
14 MR. KLAYMAN: All right. Well I'm getting confused
15 because --
16 MR. GILLIGAN: So are we --
17 MR. KLAYMAN: -- {inaudible} documents are --
18 MR. GILLIGAN: -- so I understand.
19 MR. KLAYMAN: -- being shuffled all over the place
20 here.
21 But, anyway, as Exhibit 6, I ask that this document
22 be produced. It's from Mr. Kennedy's personal production. It
23 says, "By Authority of the U.S. House of Representatives,
24 Congress of the United States," (sic) to William Kennedy from
25 William Clinger, dated June 24th, 1996. It appears to be a
22
1 subpoena.
2 {The document referred to was marked for
3 identification as Deposition Exhibit No. 6,
4 and is attached.}
5 MR. KLAYMAN: I asked to be marked as Exhibit 7 what
6 appears to be an e-mail from Lisa Robison, R-o-b-i-s-o-n, from
7 Bill Kennedy, Friday, June 28th, 1996, 4:57 p.m.
8 {The document referred to was marked for
9 identification as Deposition Exhibit No. 7,
10 and is attached.}
11 MR. KLAYMAN: I'll ask that the following document
12 be marked as Exhibit 7 (sic). It appears to be an e-mail from
13 Doris Plummer, P-l-u-m-m-e-r, to Bill Kennedy dated June 21st,
14 1996.
15 MR. GILLIGAN: That would be Exhibit 8, Mr. Klayman.
16 MR. KLAYMAN: Exhibit 8.
17 {The document referred to was marked for
18 identification as Deposition Exhibit No. 8,
19 and is attached.}
20 MR. KLAYMAN: I'll ask that the following document
21 be marked as Exhibit 9. It is a fax from Wachtell, Lipton,
22 Rosen & Katz to William Kennedy, III and the Rose Law Firm
23 from Bernard Nussbaum. It consists of two pages. It's dated
24 June 5th, 1996. Exhibit 9.
25 {The document referred to was marked for
23
1 identification as Deposition Exhibit No. 9,
2 and is attached.}
3 MR. KLAYMAN: The following document is an article
4 from the New York Times dated Monday, July 1st, 1996, "White
5 House Links Dead Aide to Hiring of Ex-Security Chief."
6 Attached to the document is a Washington Times article of
7 Monday, July 1st, 1996 entitled "Aldrich says Hillary hired
8 Livingstone." That's Exhibit 10.
9 {The document referred to was marked for
10 identification as Deposition Exhibit No. 10,
11 and is attached.}
12 MR. KLAYMAN: I'll ask that the following news clip
13 from the Wall Street Journal of June 27, 1996, page A20,
14 entitled "Army Staffer in Files Controversy Says He Was Fired
15 From White House Job." We'll mark this as Exhibit 11.
16 {The document referred to was marked for
17 identification as Deposition Exhibit No. 11
18 and is attached.}
19 MR. KLAYMAN: To be marked as Exhibit 12 is a
20 Washington Times article of July 8th, 1996 entitled "FBI Files
21 scandal may reach higher than Livingstone."
22 {The document referred to was marked for
23 identification as Deposition Exhibit No. 12
24 and is attached.}
25 MR. KLAYMAN: To be marked as Exhibit 13 is an
24
1 article which appeared in the New York Times Sunday edition,
2 June 30th, 1996 entitled "Former FBI Agent Talks As a White
3 House Insider." It appears to be have been faxed by Sharp and
4 Lankford, L-a-n-k-f-o-r-d, on July 1st, 1996.
5 {The document referred to was marked for
6 identification as Deposition Exhibit No. 13,
7 and is attached.}
8 MR. KLAYMAN: And to be marked as Exhibit 14 is an
9 article which appears to be from the Washington Post, an
10 editorial, "FBI Files and the ex-FBI Author."
11 {The document referred to was marked for
12 identification as Deposition Exhibit No. 14
13 and is attached.}
14 BY MR. KLAYMAN:
15 Q I am showing you Exhibits 4 through -- I'm showing
16 you Exhibits 4 through 14, which include privilege logs
17 produced --
18 MR. KLAYMAN: Strike that.
19 Q I'm showing you Exhibits 3 through 14, which include
20 privilege logs produced by your Government counsel and private
21 counsel.
22 Are these all of the documents which you've produced
23 here today in response to the subpoena, which is Exhibit 1?
24 A Yes.
25 Q How did you come upon these documents to produce
25
1 here today? In other words, how did you do your search to
2 find these documents pursuant to the subpoena served upon you,
3 which is Exhibit 1?
4 A I looked everywhere where I thought I needed to look
5 to find documents responsive to your subpoena.
6 Q Where did you look?
7 A I looked at my house and at my office. I also
8 searched at a house I own in Hot Springs, Garland County,
9 Arkansas.
10 Q When you left the White House, when was that?
11 A At the end of November 1994.
12 Q Did you take documents with you?
13 A Yeah.
14 Q What did you take with you?
15 A Far and away, the vast majority were personal
16 documents, just things related to my personal life.
17 Q How do you define "personal documents"?
18 A Documents related to my personal life. I don't
19 quite know how to do it better than that. I'll assist you any
20 way I can. I don't know quite how to do that, I mean...
21 Q Well was there any documentation on White House
22 letterhead which you considered to be related to your personal
23 life which you took with you?
24 A No, I don't believe so.
25 Q Were there any notepads which you kept in your
26
1 office at the White House which you considered to be related
2 to your personal life --
3 A Yes.
4 Q -- which you took with you?
5 A Yes.
6 Q When you are accused of something, is it your view
7 that this would impinge upon your personal life? Say you were
8 accused of doing something illegal, would that be a part of
9 your personal life?
10 A No. It would depend upon the subject matter of the
11 accusation.
12 Q Is there any aspect of either the File Gate or
13 Travel Gate controversies that you consider to be part of your
14 personal life?
15 MR. GILLIGAN: Object to the vagueness.
16 Q You understand what I mean by File Gate and Travel
17 Gate, do you not?
18 A I think I understand what those terms are commonly
19 utilized to mean, which I'm going to assume is what you mean.
20 They've impacted me personally, of course,
21 dramatically. But they all concerned, you know, actions in my
22 official capacity.
23 Q So were there any documents which you took from the
24 White House that referred or reflected in any way to those two
25 controversies, File Gate and Travel Gate, which you consider
27
1 personal documents?
2 A No.
3 Q How have those two controversies impacted you
4 personally?
5 A Well I get to have all this fun, Mr. Klayman. I get
6 to be here today. That stops me from doing things that I
7 would rather be doing, both personally and professionally.
8 Q Is there any way it's impacted you personally other
9 than that?
10 A Financially it's been devastating. It's occupied a
11 lot of time that was -- that'd obviously be utilized doing
12 other things much more pleasing personally. It's impacted my
13 professional life. I could go on and on.
14 Q How has it impacted you financially?
15 MR. GILLIGAN: Object to the relevance.
16 A Mr. Klayman, lawyers have to be compensated. And
17 I've had to retain counsel over and over again.
18 Q Do you pay the Rose Law Firm for legal
19 representation in this matter?
20 A The short answer would be that's to be worked out.
21 Very short notice on the subpoena.
22 Q Did you take any nonpersonal documents out of the
23 White House?
24 A Yes.
25 Q What nonpersonal documents did you take, generically
28
1 speaking?
2 A There were very few. And they were, in each case,
3 taken not intentionally, but inadvertently.
4 My departure from the White House was not an orderly
5 process, and I had some people assisting me in packing up.
6 And they packed some files that contained copies of
7 memorandums and whatnot that, in the ordinary course, I would
8 not have taken. I tried to take only personal.
9 Q Who assisted you in packing up?
10 A I'm sorry. I can't recall their names. It was
11 whoever was -- if you give me a minute, maybe I can. I'm
12 sorry. It was whoever was, you know, our assistant at that
13 time at the Counsel's Office. I'm sorry. There was turnover
14 there. At the moment, I can't recall who it was.
15 Q When you say "our assistant," what do you mean? Who
16 is "our"?
17 A We had an individual, well several staff members,
18 working in the office suite where I was located. And, I'm
19 sorry, I simply can't recall who it was at that time.
20 Q Was it "our assistant" meaning you and Bernard
21 Nussbaum, or you and someone else?
22 A Well it was the person that assisted the counsels
23 located in that office suite.
24 Q Generically what was their job?
25 A Jack-of-all-trades, receptionist, secretary, file
29
1 clerk, general assistant.
2 Q Was it someone by the name of Deborah Gorham?
3 A No.
4 Q Did you ever hear that name?
5 A Yes.
6 Q Who is she?
7 A She used to be Vince Foster's secretary in the White
8 House Counsel's Office.
9 Q Do you know where she is today?
10 A I do not.
11 Q Is she still there?
12 A I don't know. I don't know where she is today.
13 Q What generically did you pack up that you took
14 inadvertently?
15 A As I said, they were primarily memoranda related to
16 the clearance process.
17 Q What do you mean by "the clearance process"?
18 A Well those were the sum and substance of my duties
19 in the White House.
20 Q And as part of the clearance process, that entailed
21 obtaining information, did it not, by the White House from the
22 FBI?
23 A Parts of it did, yes.
24 Q So you took information related to the FBI when you
25 left?
30
1 A No.
2 MR. GILLIGAN: Object to the vagueness and the
3 mischaracterization of the record.
4 A No.
5 Q What kind of documents were they that you took?
6 A They were internal transmittal memoranda relating to
7 the clearance process.
8 Q Were there particular individuals that were
9 discussed in those documents, people that were related to the
10 clearance process?
11 A They were individuals that were the subject of the
12 clearance process.
13 Q Who were they?
14 MR. GILLIGAN: Objection. Mr. Klayman, the answer
15 to that question can implicate the attorney/client privilege,
16 the work product privilege, and the deliberative process
17 privilege. And I can't allow the witness to answer at least
18 until I've had an opportunity to speak with him and try to
19 ascertain more about what the answer to this question might
20 entail.
21 MR. KLAYMAN: If you want to do that now, that's
22 fine -- off the record, and the time will stop.
23 THE VIDEOGRAPHER: We're going off the record. The
24 time is 10:32.
25 {Reporter's Note: At 10:32 a.m., the reporter was
31
1 asked to go off the record; testimony resumed at 10:36 a.m.}
2 THE VIDEOGRAPHER: We're going back on the record,
3 the time is 10:36.
4 MR. GILLIGAN: Okay, Mr. Klayman, I believe the
5 question was you wanted to know the names of the individuals
6 mentioned in those memoranda?
7 MR. KLAYMAN: Yes.
8 MR. GILLIGAN: Prepared to allow the witness to
9 answer the question to the best of his ability.
10 THE WITNESS: Would you restate the question?
11 BY MR. KLAYMAN:
12 Q Who was it that was mentioned in the memoranda that
13 you took from the White House related to the security
14 process --
15 A Mr. Klayman --
16 Q -- clearance process?
17 A Mr. Klayman, I don't recall.
18 MR. KLAYMAN: I take it that's why you were willing
19 to let him answer.
20 MR. GILLIGAN: Yes.
21 BY MR. KLAYMAN:
22 Q Where are those memoranda today?
23 A They've been delivered back to the White House.
24 Q When were they delivered back to the White House?
25 A I don't recall the precise day. It would've been
32
1 early in 1995.
2 Q And who initiated the redelivery to the White House?
3 A I did.
4 Q Did anyone contact you from the White House and ask
5 that you send them back?
6 A No. As I said, this was all totally inadvertent. I
7 mean it was not intentional, so I returned them.
8 Q How were they returned?
9 A They were delivered to my counsel.
10 Q And who was that?
11 A Paul Castellito or Tom Lankford of Sharp and
12 Lankford.
13 Q How is Castellito spelled?
14 A C-a-s-t-e-l-l-i-t-o.
15 Q Sharp and Lankford, where is that law firm located?
16 A 18th and Massachusetts.
17 Q In Washington, D.C.?
18 A Yes.
19 Q Were they then provided to the White House?
20 A As far as I know, yes.
21 Q You're not sure whether they ever got back or not?
22 A I was informed that they were. As far as I know
23 they're back at the White House.
24 Q Who informed you?
25 A My counsel.
33
1 Q Which one?
2 A I'm not sure, either Mr. Lankford or Mr. Castellito.
3 Q And who did they redeliver those documents to?
4 A I do not know.
5 Q What else did you take from the White House?
6 A Just personal files.
7 Q About how many personal files did you take in terms
8 of -- maybe you can just show me the size. You don't have to
9 tell me how many pages.
10 A This is a total guess. Maybe that much
11 {indicating}.
12 Q What were -- I don't want to know what's in the
13 personal files, but what kind of information?
14 A Well --
15 Q Subject matter.
16 A I went through a divorce, and they were primarily
17 materials related to my divorce.
18 Q When were you divorced?
19 A The divorce was final in August of 1994.
20 Q Who were you married to prior to your divorce?
21 A Leslie Gail Kennedy.
22 Q If you want to provide it to me off the record,
23 that's fine, but I'd like to know where she resides.
24 A I'd like to provide it to you off the record.
25 THE VIDEOGRAPHER: We're going off the record. The
34
1 time is 10:40.
2 MR. KLAYMAN: We can do it at the break.
3 THE VIDEOGRAPHER: I'm sorry. Hang on. I'm off the
4 record. Let me get this fired up.
5 Everybody ready to go back on?
6 MR. GILLIGAN: Oh, yes.
7 THE VIDEOGRAPHER: We're back on the record. The
8 time is 10:40.
9 BY MR. KLAYMAN:
10 Q Was there anything other than your divorce papers
11 that you took with you out of the White House?
12 MR. GILLIGAN: Objection. Asked and answered.
13 A I don't recall anything else being there.
14 There may have been a file related to personal
15 correspondence that I received while I was at the White House
16 from friends, people like that, included in that.
17 Q Did you keep a diary when you were at the White
18 House?
19 A I did not.
20 Q Did you keep a desk calendar?
21 A No, I did not.
22 Q Did you use a computer?
23 A I did.
24 Q What computer or computers did you use when you were
25 at the White House?
35
1 A I can't answer that. There was one in my office
2 when I got there.
3 Q Was it a desktop computer?
4 A Yes.
5 Q Did you ever use a laptop computer?
6 A No.
7 Q Have you ever had a laptop computer?
8 A Yes.
9 Q When was that?
10 A I had a laptop computer when I was in private
11 practice. I have a laptop computer now.
12 Q When you were in private practice before joining the
13 White House?
14 A That's correct.
15 Q Where is that laptop computer today?
16 A In my office.
17 Q What kind is it?
18 A It's a dinosaur. I'm sorry, I can't remember. It's
19 a 386; it's very old.
20 Q When was the last time you used that computer?
21 A I can't recall.
22 Q Roughly speaking.
23 A A year ago, maybe.
24 Q I take it you didn't search that computer in
25 response to the subpoena issued in this case?
36
1 A I did.
2 Q How did you search it?
3 A Called up the document list to see what was on
4 there, looked at any documents that I thought might be
5 responsive. There were none.
6 Q During the period that you lived in Washington,
7 D.C., where did you reside?
8 A I lived on Alabama Avenue in Alexandria. I'm sorry,
9 the -- I want to say it was 3280 or 3284, something like that.
10 Q Did you have that laptop computer with you in
11 Washington?
12 A I did.
13 Q And you used it from time to time?
14 A No, I don't recall doing so. I didn't have any need
15 to. I just moved it with me when I moved. It's personal.
16 It's mine.
17 Q Did you have any computers with you at home when you
18 lived in Washington?
19 A I did.
20 Q Other than a laptop?
21 A Yes. I had a desktop computer.
22 Q And did you use that from time to time?
23 A Yes, I did.
24 Q Where is that computer today?
25 A It no longer exists.
37
1 Q What happened to it?
2 A It was dismantled. I have a friend who rebuilds
3 computers, and he -- that computer also was a 386 -- and he
4 took it apart and used the innards, the chassis and whatnot,
5 put a new motherboard in it, and made it a 486.
6 Q Now who's got the 486?
7 A I do.
8 Q Did he erase any files on the hard drive when he
9 dismantled that computer and made it a 486?
10 A No, he did not.
11 Q Where is that computer today? In Little Rock?
12 A Yes, it is.
13 Q And, I take it, you used that computer from time to
14 time when you lived in Washington, D.C. and worked at the
15 White House?
16 A For stuff at home, yes.
17 Q Now when you worked at the White House, you
18 sometimes took work home; didn't you?
19 A Rarely.
20 Q And you sometimes took home documents related to the
21 clearance process, did you not?
22 A I don't recall doing so, no.
23 Q You can't say one way or the other?
24 A I simply can't recall, Mr. Klayman. It's been a
25 long time.
38
1 Q You're aware that being under oath means telling
2 everything you remember?
3 A Yes, sir.
4 Q Did you search that computer prior to coming here
5 today in response to our subpoena?
6 A I did.
7 Q How did you search it?
8 A The same way I searched the laptop; I called up all
9 the documents on it to see if any were responsive, looked to
10 see if any that I thought might be were, and they were not.
11 Q Did anyone assist you in any of the document searchs
12 that you've talked about this morning?
13 A No. I did them myself.
14 Q Have you ever been subpoenaed by the Office of
15 Independent Counsel concerning File Gate, personally? Have
16 you been personally subpoenaed?
17 A Yes, I have.
18 Q When was that?
19 A I think you have it there in front of you. I can't
20 recall the dates.
21 Q Well among the document that you gave to me was a
22 subpoena from Congress. I didn't see a subpoena from the
23 Office of Independent Counsel. Am I mistaken?
24 A I thought there was --
25 Q Exhibit 6 is a subpoena, what would appear to be a
39
1 subpoena from Congress; correct?
2 A Yes. This is what I was thinking about.
3 Q So you've never been subpoenaed by the Office of --
4 A No, I have been subpoenaed by the Office of
5 Independent Counsel.
6 Q When was that?
7 A I'm sorry, I can't recall precisely.
8 Q Roughly speaking.
9 A I'm sorry, I can't recall. I've been subpoenaed
10 many times by the Office of Independent Counsel. I can't
11 recall precisely.
12 Q You've been subpoenaed personally?
13 A Well I don't quite know how to answer that,
14 Mr. Klayman. Could you be more specific?
15 Q I'm talking about did you respond to a subpoena that
16 was sent to the White House generally? Is that what you're
17 referring to in terms of being subpoenaed by the Independent
18 Counsel, or did you receive one that had the name William
19 Kennedy on it?
20 A I have done both.
21 Q Where are copies of the Independent Counsel
22 subpoenas?
23 A I'm not sure, one, if I have them; and, two, if I do
24 have them, they do not indicate what they are for. In other
25 words, they just say come.
40
1 Q Is it your interpretation of our subpoena that
2 unless the word "File Gate" --
3 A No.
4 Q -- was used that you didn't have to produce it?
5 A Absolutely not. I took a very expansive view of
6 your definition, and tried to be as responsible as it's
7 possible to be.
8 Q Were you subpoenaed by the Independent Counsel to
9 appear in the File Gate controversy?
10 A You're asking me, Mr. Klayman, to speculate what was
11 in their minds as to why they subpoenaed me. And so I can't
12 do that.
13 I have been subpoenaed by the Independent Counsel
14 many times.
15 Q And when you were subpoenaed by the Independent
16 Counsel, was it Independent Counsel Robert Fisk or Independent
17 Counsel Ken Starr?
18 A Both.
19 Q When was the last time you were subpoenaed by
20 Independent Counsel Ken Starr?
21 A I think in February of this year.
22 Q Where were you at the time you were subpoenaed?
23 A I don't understand. What time --
24 Q Where did you receive the subpoena?
25 A Which time?
41
1 Q In February of this year.
2 A I was at the Rose Law Firm.
3 Q Did the subpoena require you to produce certain
4 documents?
5 A Did not.
6 Q Have you ever produced documents to the Office of
7 Independent Counsel?
8 A Mr. Klayman, I don't recall. Probably so. But I'd
9 have to go back and look. I think most of them, by far the
10 vast majority, were for me to come and give testimony.
11 Q Who represented you in responding to the subpoenas
12 issued and served by the Office of Independent Counsel?
13 A In most cases, Sharp and Lankford.
14 Q Does Sharp and Lankford have in its possession any
15 documents which you produced to the Office of Independent
16 Counsel?
17 MR. GILLIGAN: In connection with the FBI Files
18 matter?
19 MR. KLAYMAN: I'm asking my question. Please do not
20 interrupt.
21 MR. GILLIGAN: Well to the extent --
22 MR. KLAYMAN: I'm entitled to ask a broad question
23 without --
24 MR. GILLIGAN: I'm entitled to state an objection.
25 MR. KLAYMAN: That's not an objection. That is an
42
1 interruption.
2 MR. GILLIGAN: No. It's an objection. I'm
3 objecting -- it's your question is not so limited, then I'm
4 objecting to the relevance and the overbreadth of your
5 question, thank you very much.
6 MR. KLAYMAN: Well the question cannot do any harm
7 to ask a simple question whether any documents were produced.
8 For you to come in and to make that kind of an
9 objection is giving the witness testimony.
10 MR. GILLIGAN: It seems I've heard this song before.
11 Why don't we --
12 MR. KLAYMAN: You have. And there are several --
13 MR. GILLIGAN: -- {inaudible}.
14 MR. KLAYMAN: -- motions for sanctions pending.
15 MR. GILLIGAN: I've heard that song before too. Why
16 don't we move on?
17 MR. KLAYMAN: Are you mocking the Court,
18 Mr. Gilligan?
19 MR. GILLIGAN: No, Mr. Klayman. I'm referring to
20 the fact that you've threatened sanctions against opposing
21 counsel at the drop of a hat, all too frequently and
22 improperly. That's what I'm referring to.
23 MR. KLAYMAN: I don't see any necessity for you to
24 interrupt my testimony.
25 MR. GILLIGAN: It's not your testimony; it's the
43
1 witness' testimony. And when you ask an objectionable
2 question, I will state an objection.
3 MR. KLAYMAN: That is not an object -- all right.
4 Your record, you'll get another --
5 MR. GILLIGAN: Why don't you just please go on?
6 MR. KLAYMAN: -- {inaudible} for sanctions,
7 Mr. Gilligan.
8 MR. GILLIGAN: Oh, I knew that the day you served
9 the subpoena.
10 THE WITNESS: Would somebody restate the question?
11 BY MR. KLAYMAN:
12 Q Did your counsel produce documents to the
13 Independent Counsel -- Sharp and Lankford?
14 A I believe so.
15 Q And they kept copies of the documents which were
16 produced, correct?
17 A You'll have to ask them, Mr. Klayman. I don't know
18 what they have in their possession.
19 Q In responding to Judicial Watch's subpoena,
20 Exhibit 1 to this deposition, you did not consult with Sharp
21 and Lankford; did you?
22 A That's wrong, Mr. Klayman; I did.
23 Q Who did you talk to there?
24 A Bill Coffield.
25 Q Did you send them a copy of our subpoena?
44
1 A I read it to them over the telephone. To your
2 credit, it's very short, the document list, and so I read it
3 to them over the telephone and instructed them to search.
4 Q When did you read it to them?
5 A Shortly after I got it. I don't remember the
6 precise day.
7 Q Did they produce any documents to you to produce
8 pursuant to Judicial Watch's subpoena?
9 A They did not have any responsive documents.
10 Q Did they tell you whether they had documents that
11 they had produced to the Independent Counsel?
12 A That question was not put to them. We were
13 responding to your subpoena.
14 Q So as of today, you don't remember ever producing
15 documents to any Independent Counsel?
16 A I did not say that, Mr. Klayman. I said I believe
17 that we did. This process has gone on for quite a while. I
18 simply can't recall the specifics of doing so.
19 I might also point out for the record that while I
20 was at the White House, the White House got Independent
21 Counsel subpoenas, which we attempted to respond to in our
22 official capacities.
23 Q Is it your practice as a lawyer to keep copies of
24 documents that you've produced to official government organs?
25 A In a personal capacity?
45
1 Q In any capacity.
2 A No, I need you to be specific, Mr. Klayman. Are you
3 talking about in my professional capacity as a lawyer?
4 Q That's correct.
5 A Representing third-party clients?
6 Q Representing anybody.
7 A Well, I mean, you're talking about performing legal
8 services?
9 Q That's correct.
10 A Generally, yes.
11 Q I take it that when you graduated from law school
12 you joined the Rose Law Firm?
13 A Yes, I did.
14 Q What law school did you go to?
15 A University of Virginia.
16 Q What year was that?
17 A 1976.
18 Q Since the time that you joined the Rose Law Firm,
19 what was your area of practice? And you can tell me whenever
20 it changed, if it changed at all.
21 A When I first got out of law school I was a trial
22 lawyer, a litigator. Shortly thereafter I moved into the
23 securities law, corporate law area. And that's primarily what
24 I do now.
25 Q During the course of your 22-year career, I take it,
46
1 you have been involved in litigation from time to time in
2 other than a capacity as a party or a deponent?
3 MR. GILLIGAN: Object to the vagueness.
4 Q Well you've been in and around litigation in terms
5 of your securities practice as well, have you not?
6 A Mr. Klayman, I do everything I can to stay out of
7 the courtroom.
8 Q It calls for a yes or no.
9 A I'm sorry. I truly do not understand what you're
10 driving at. And I'm not trying to be evasive; I don't
11 understand. When you say --
12 Q How long did you practice in the litigation
13 department of Rose?
14 A Eighteen (18) months, maybe.
15 Q And when you moved over to the securities
16 department, I take it, you still from time to time played a
17 role in litigation concerning securities?
18 A Rarely, but sometimes, yes.
19 Q How many times have you personally appeared in front
20 of the Grand Jury concerning the File Gate controversy?
21 A Once, I believe.
22 Q And that was February of this year?
23 A No, sir.
24 Q So your appearance in February of this year was not
25 related to File Gate?
47
1 A No, sir.
2 Q What was it relating to?
3 THE WITNESS: I need to consult with my counsel,
4 please, all of them.
5 THE VIDEOGRAPHER: We're going off the record. The
6 time is 10:54.
7 {Reporter's Note: At 10:54 a.m., the reporter was
8 asked to go off the record; testimony resumed at 10:59 a.m.}
9 THE VIDEOGRAPHER: We're back on the record. The
10 time is 10:59.
11 MR. GILLIGAN: Mr. Klayman, let me just state that
12 we're prepared to let the witness talk about the general
13 subject matter of his testimony during the appearance
14 questioned for Mr. Starr's Grand Jury. But if we get into any
15 of the details, as was the case at Mary Anderson's deposition,
16 we're going to have to assert a law enforcement privilege on
17 behalf of Independent Counsel, and try to contact them to see
18 what their view is of details of Mr. Kennedy's Grand Jury
19 testimony becoming the subject matter of this deposition.
20 BY MR. KLAYMAN:
21 Q Can you respond generally initially?
22 THE WITNESS: Can someone repeat the question,
23 please?
24 Q What was discussed generally speaking at the
25 February 1998 appearance before the Grand Jury?
48
1 A They got into matters involving Madison Guaranty,
2 Whitewater, the Travel Office. Those were the general areas.
3 Q With regard to the Travel Office, was anything
4 discussed concerning FBI files?
5 A That was not a subject of that appearance.
6 Q Were there prior appearances where that was a
7 subject?
8 A I have appeared before the -- I have responded to a
9 subpoena at which that was a topic, yes.
10 Q When did you respond to that subpoena, roughly
11 speaking?
12 A I'm sorry, Mr. Klayman, I do not know the time
13 frame. I simply cannot recall exactly when it was. It
14 would've been whenever they were doing that. And, I'm sorry,
15 I simply cannot recall.
16 Q Several years ago?
17 A I'm sorry, I cannot --
18 Q I'm just trying -- I'm not going to hold you to it.
19 A I know.
20 Q I just want to get a general idea.
21 A I've done so much of this, I cannot remember what
22 was what.
23 And so I would say it was in the same year that the
24 story first broke.
25 Q 1996?
49
1 A Either `96 or `97, but please don't hold me to that.
2 Either `96 or `97.
3 Q And the Independent Counsel at that time was Ken
4 Starr or Robert Fisk?
5 A Starr. That I'm sure of.
6 Q And you appeared in front of a Grand Jury then?
7 A That is correct.
8 Q And they asked you about Travel Gate?
9 A Which time, Mr. Klayman?
10 Q The first time, back in 1996 or `97.
11 A I'm sorry. I think you said, "and they asked you
12 about Travel Gate." I thought we were talking about the
13 appearance that related to File Gate. And I -- I'm sorry, I'm
14 a little confused.
15 Q Let me use your words. That first appearance in `96
16 or `97, what was the subject matter?
17 A Mr. Klayman, if I might correct you, that was not my
18 first appearance. That was one of many.
19 Q Okay. Well that appearance, what was the subject
20 matter, `96 or `97?
21 A There were probably several in `96 and `97, each
22 year. I'm not trying to be evasive. I have responded this
23 way, which is what I need to stick to. And it is that I have
24 made a Grand Jury appearance on the subject of what people
25 refer to as the FBI Files matter.
50
1 Q Did you produce any documents to the Grand Jury at
2 that time?
3 A I've got to revert to my other answer, I don't think
4 so. I think it was simply a subpoena to appear in person.
5 That's my belief.
6 Q Have you ever received a target letter from the
7 Independent Counsel's Grand Jury?
8 A I have not.
9 Q Have you ever received any other kind of
10 correspondence, you or your counsel, other than a subpoena?
11 A I don't believe there've been anything but
12 subpoenas. That's my belief.
13 Q Have you been advised that you are subject --
14 A I have not.
15 Q -- of a Grand Jury investigation?
16 A I have not.
17 Q You are aware that allegations have recently
18 surfaced that Linda Tripp says you had stacks of Republican
19 FBI files in your office, you're aware of that?
20 MR. GILLIGAN: Objection. Mischaracterizes the
21 record.
22 A I heard a radio report to that effect, that is
23 correct.
24 Q What did you hear specifically?
25 A I can't recall the specifics of it, but it was along
51
1 the lines of that there was an allegation that Linda Tripp
2 knew something about the FBI Files matter.
3 Q You are aware that she implicated you in the misuse
4 of FBI files?
5 MR. GILLIGAN: Objection. Mischaracterizes the
6 record.
7 Q You can respond.
8 A I am unaware that -- I don't know what you mean by
9 "implicate" -- but I am unaware other than what I said that
10 she supposedly has a role to play in the FBI Files matter.
11 Q So you are not aware of her purported statement that
12 you had Republican FBI files stacked up in your office?
13 MR. GILLIGAN: Same objection.
14 Q You're not aware of that, other than just having
15 heard it?
16 A Generally, no. Yes, sir; that is correct.
17 Q And you never --
18 THE VIDEOGRAPHER: Hang on a second. You just
19 knocked me out of there.
20 Let's go off the record. We're going off the record
21 at 11:05.
22 {Reporter's Note: A brief pause for technical
23 consideration.}
24 MR. GILLIGAN: That was 7 whole minutes.
25 THE VIDEOGRAPHER: It's 11:06.
52
1 MR. KLAYMAN: As we've just --
2 Are we back on the record?
3 THE VIDEOGRAPHER: We are on the record, yes.
4 MR. GILLIGAN: At 11:06.
5 BY MR. KLAYMAN:
6 Q This purported allegation by Linda Tripp, did you
7 ever discuss anything to this effect with your counsel?
8 MR. GILLIGAN: Objection. Attorney/client
9 privilege.
10 Don't answer that, please.
11 MR. KLAYMAN: He said he never heard of it. I'm
12 just trying to get a clarification. I presume he heard it
13 from you.
14 MR. GILLIGAN: That is not the question you just
15 asked.
16 MR. KLAYMAN: Did he ever hear that from you,
17 Mr. Gilligan?
18 MR. GILLIGAN: Don't ask me about my attorney/client
19 communications, Mr. Klayman. I won't respond to that. You're
20 wasting your time.
21 MR. KLAYMAN: Certify it.
22 BY MR. KLAYMAN:
23 Q Who was the radio talk show host that you heard this
24 from?
25 A Mr. Klayman, I don't recall. I didn't put much
53
1 stock in it. I don't recall.
2 Q In the last, let's say, since January of this year,
3 are you aware of anyone who was involved in any way in the FBI
4 Files controversy that's been called before the Starr Grand
5 Jury?
6 A No. And if I did it would only be from press
7 reports.
8 Q What, if anything, do you know from press reports?
9 A I don't know anything. I don't know since January
10 of this year who's been called before the Starr Grand Jury.
11 Q Since January of this year have you discussed the
12 FBI Files controversy with anyone other than counsel?
13 A No.
14 Q Are you currently married?
15 A I am not.
16 Q If you wish to give this to me off the record,
17 that's fine. I'd like to know who are your closest friends.
18 A I definitely want to give it to you off the record.
19 And I would wonder about the relevance of that, but
20 if you wish the information, I'd like to provide it off the
21 record, for obvious reasons.
22 Q When I say "off the record," off the public record.
23 We can put it under a protective order.
24 We can take a break when all these questions stack
25 up, and do it at that time.
54
1 THE WITNESS: One second, Mr. Klayman.
2 {Reporter's Note: The witness confers with counsel
3 outside the hearing of the reporter.}
4 BY MR. KLAYMAN:
5 Q When was the last time you talked to Bernard
6 Nussbaum?
7 A I think I had dinner with him either a month or a
8 month and a half ago.
9 Q Where did you have dinner?
10 A In New York City.
11 Q Was anyone present at the dinner?
12 A No. Just Bernie and I.
13 Q What was the occasion for you to have dinner with
14 him?
15 A I was in New York City attending a seminar,
16 continuing legal education seminar. And I called him and
17 asked him if he had time would he have dinner with me.
18 Q And during that dinner you discussed the Travel Gate
19 and File Gate controversies?
20 A We did not.
21 Q Did you discuss any aspect of it?
22 A No, sir; we did not.
23 Q Did you mention the names Travel Office?
24 A No, sir; we did not.
25 Q FBI Files?
55
1 A No, sir.
2 Q Did you discuss any aspect of the current state of
3 the Clinton Administration?
4 A We talked about the President's current
5 difficulties, beyond that, no.
6 Q Did you discuss Linda Tripp?
7 A No, sir; we did not.
8 Q Monica Lewinsky?
9 MR. GILLIGAN: Object to the relevance.
10 You may proceed.
11 A Only in the context of what I just outlined, sort of
12 how, quote, Monica Lewinsky has led to the President's current
13 difficulties.
14 But, no, we did not talk about Monica Lewinsky
15 specifically.
16 Q Harold Ickes (phonetic)?
17 A No, sir; we did not.
18 Q James Carville?
19 A No, sir; we did not.
20 Q Hillary Clinton?
21 A No, sir; we did not.
22 Q Bill Clinton?
23 A Refer to my previous answer, only in the general
24 sense.
25 Q Did you ask Mr. Nussbaum whether he was a party to
56
1 any litigation, during that meeting, or involved in any
2 litigation?
3 A No, sir; we did not.
4 Q Did he offer that he had been named as a defendant
5 in this case that you're here on today?
6 A No, sir; he did not.
7 Q Have you ever been aware of whether or not he was
8 named as a defendant in this lawsuit?
9 A Yes, sir; I was aware of that.
10 Q How did you become aware of that?
11 A Press reports when the lawsuit was first filed.
12 Q Any other way?
13 A No, sir; not that I believe. Not that I recall.
14 Q When was the last time you spoke with --
15 MR. KLAYMAN: Strike that.
16 Q Did you ever discuss Larry Klayman or Judicial Watch
17 with Mr. Nussbaum? Have you ever mentioned those two persons
18 and entities?
19 A No, sir; not that I recall.
20 Q Have you ever, since you've left the White House,
21 discussed the FBI Files matter with anyone other than your
22 counsel?
23 A Well in the documents produced to you, you have a
24 fax from Wachtell, Lipton -- which if someone would hand it to
25 me I'd be able to answer your question.
57
1 MR. GILLIGAN: Exhibit 9.
2 A I'm referring to Exhibit 9, which is a two-page
3 exhibit. It's a fax from Wachtell, Lipton dated June the 5th,
4 1996. And it attaches a document with a Bate's stamp CGE
5 043641.
6 You asked if I've ever discussed the FBI Files
7 matter. Right about this time, I received a phone call from
8 Bernie Nussbaum -- and this was at the time that the story
9 broke, the story first hit the news about the FBI Files. And
10 Bernie called because he was being inundated with press
11 inquiries, wanting to know what was going on.
12 And he indicated that he had a copy of this form
13 that's attached to the fax, and what did I know about it.
14 And I asked him to fax me a copy of this form, which
15 he did. And I told him that I knew nothing about it, but that
16 the form was a standard form, and that was why his name was on
17 it. And so I discussed the FBI Files matter in that regard
18 with Bernie back in 1996.
19 Q Have you discussed the FBI Files matter with anyone
20 else since 1996?
21 A Just my counsel.
22 Q Have you discussed it with Jane Sherburne?
23 A You've got to be, in this case, more specific,
24 Mr. Klayman. I mean, to the extent, for example, someone
25 could have asserted that Gary Aldrich was part of the FBI
58
1 Files matter, the answer to the question would be yes.
2 Q I asked about Jane Sherburne.
3 A The answer to the question would be yes.
4 Q And what did you discuss with Jane Sherburne, and
5 when?
6 MR. GILLIGAN: Hold on. There is an issue here of
7 attorney/client privilege. If I can talk to the witness,
8 perhaps we can get around it.
9 MR. KLAYMAN: Feel free. Hopefully with a technique
10 other than lack of memory.
11 THE VIDEOGRAPHER: We're going off the record. The
12 time is 11:15.
13 {Reporter's Note: At 11:15 a.m., the reporter was
14 asked to go off the record; testimony resumed at 11:19 a.m.}
15 THE VIDEOGRAPHER: We're back on the record. Time
16 is 11:19.
17 MR. GILLIGAN: The witness may answer the pending
18 question.
19 THE WITNESS: Sorry. Somebody's got to read the
20 pending question back to me, please, or restate it.
21 BY MR. KLAYMAN:
22 Q What was discussed with Jane Sherburne?
23 A Jane Sherburne contacted me about Gary Aldrich's
24 book, and the subject matter of that book was the veracity of
25 the statements that Aldrich made in that book (sic).
59
1 Q How did she contact you?
2 A By telephone.
3 Q What did she say specifically?
4 A I'm sorry, I don't recall the specifics of that
5 conversation. She asked me questions about parts of that
6 book. I can't remember which ones at this point in time, but
7 in essence were they true or not true.
8 Q I'll show you what has been marked as Exhibit 5.
9 This is a fax from Cheryl Mills of the White House Counsel's
10 Office dated 6/28/96.
11 Does this refresh your recollection as to when
12 Ms. Sherburne contacted you?
13 A Again, I can't remember specifically, but it was
14 somewhere around this time.
15 Q Are those the parts of the Aldrich book that
16 Ms. Sherburne spoke to you about, attached to that Cheryl
17 Mills fax --
18 A I believe --
19 Q -- Exhibit 6 (sic)?
20 A I believe so, yes.
21 Q Do you want to take an opportunity and review that?
22 A If you'd like for me to, I'd be delighted.
23 Q Well see if you can do it quickly. Maybe it'll
24 refresh your recollection as to what you discussed with
25 Ms. Sherburne.
60
1 By the way, Mr. Kennedy, what exhibit number is
2 that? I may have misspoken.
3 A It's marked as Exhibit 5.
4 Q Okay. Exhibit 5.
5 Does that refresh your recollection?
6 A Mr. Klayman, it does not. There are many topics
7 covered in these pages -- many. And I just simply can't
8 recall exactly what Jane was asking me about.
9 Q Did it have anything to do with who hired Craig
10 Livingstone, the famous question?
11 MR. GILLIGAN: Objection. That's treading upon
12 matters that are protected from disclosure by the
13 attorney/client privilege.
14 MR. KLAYMAN: Well I'm having a hard time deciding
15 whether he can't remember, or whether he can't remember
16 because he is allegedly covered by an attorney/client
17 privilege.
18 MR. GILLIGAN: I'm sorry, Mr. Klayman, if that was
19 intended as a clarification of some kind, it did not succeed.
20 You asked him whether he spoke with Jane Sherburne
21 about who hired Craig Livingstone. That question calls for
22 information that is protected by the attorney/client
23 privilege. And I instruct him not to answer.
24 MR. KLAYMAN: Well not in the context of this
25 lawsuit it's not.
61
1 Certify it.
2 It goes to the heart of the issues in this lawsuit.
3 MR. GILLIGAN: That's not what privilege turns on,
4 Mr. Klayman.
5 MR. KLAYMAN: Under your interpretation all legal
6 activity could be run through the White House Counsel's
7 Office, and therefore not subject to any discovery.
8 MR. GILLIGAN: {Inaudible.}
9 MR. KLAYMAN: And indeed there's quite a record here
10 of the White House Counsel being involved in the illegal
11 activity, so I'm entitled to ask the question.
12 MR. GILLIGAN: Well since you've decided to make a
13 statement on the record, let me just say briefly that I don't
14 agree with any of that. And why don't we move on?
15 Can I confer with my co-counsel for a moment?
16 {Reporter's Note: Mr. Gilligan confers with
17 co-counsel outside the hearing of the reporter.}
18 MR. GILLIGAN: I would allow the witness to answer
19 whether or not the remembers if that was a subject discussed
20 with Ms. Sherburne. And then if he doesn't even remember,
21 then we can avoid the issue entirely. If he does remember,
22 then we've got a privilege issue, and I will assert.
23 MR. KLAYMAN: Now you're -- this one of the more
24 comical objections that I've heard throughout this case.
25 You're now suggesting to the witness that he should not
62
1 remember?
2 Certify it.
3 MR. GILLIGAN: Oh, my goodness, Mr. Klayman. It's
4 like watching a bad movie over and over again. That was not
5 my intent.
6 My intent was, as stated, to try to get around the
7 issue in a way that reasonable counsel normally would. But if
8 you don't want to take me up on that, that is, of course, your
9 choice.
10 MR. KLAYMAN: I'll take you up on it. I'll
11 certainly be surprised if I get a response other than the one
12 you just suggested.
13 MR. GILLIGAN: Your insinuation is objectionable.
14 BY MR. KLAYMAN:
15 Q Do you remember --
16 A Mr. Klayman, I previously testified, and I testify
17 again, I don't remember precisely what Jane wanted to know
18 about Aldrich's book. I'm sorry. I don't.
19 MR. KLAYMAN: Certify it.
20 Q Have you ever talked about the FBI Files matter with
21 Jack Quinn (phonetic)?
22 A I do not recall doing so.
23 Q Cheryl Mills?
24 A Along the same lines that we talked about, again,
25 this is where descriptions become key, and also they're hard
63
1 to pin down.
2 To the extent somebody wants to lump Gary Aldrich
3 into the FBI Files matter somehow, then I received a phone
4 call from Cheryl Mills saying that the book was coming out and
5 would I look at it. And she sent the fax down, which is
6 marked as Exhibit 5.
7 Q And what specifically did you discuss with her?
8 A Well at that point in time I had not seen the book
9 or the excerpt out of the book that she sent to me. And so we
10 did not touch specifics at that point in time.
11 She said, in essence, that there's a former FBI
12 agent who's written a book which you are featured in, and I
13 need you to look at it.
14 And I said, "Send it down."
15 Q And what do you remember that you specifically
16 discussed with Ms. Mills?
17 A Well I didn't -- as I previously testified, the next
18 interaction was with Jane Sherburne. I didn't talk with
19 Ms. Mills about it again.
20 Q Have you ever talked with Hillary Rodham Clinton
21 about the FBI Files matter?
22 A I have not.
23 Q Have you ever talked with Harold Ickes about the FBI
24 Files matter?
25 A I have not.
64
1 Q Have you ever talked with Webster Hubbell about the
2 FBI Files matter?
3 A I have not.
4 Q Have you ever talked with Mack McLarty about the FBI
5 Files matter?
6 A I have not.
7 Q Have you ever talked with George Stephanopoulous
8 about the FBI Files matter?
9 A I have not.
10 Q Have you ever talked with James Carville about the
11 FBI Files matter?
12 A I have not.
13 Q Who can you remember that you have talked with about
14 the FBI Files matter other than counsel?
15 MR. GILLIGAN: Asked and answered.
16 A I believe I've testified I've only discussed the FBI
17 Files matter with my lawyers.
18 Q You've never discussed the FBI Files matter with
19 your friends?
20 A No, sir; not that I recall. Don't have any reason
21 to.
22 Q Has anyone ever brought the FBI Files matter up with
23 you, other than counsel?
24 A No, sir, other than possibly a statement of
25 commiseration, something along the lines of, `I see you're
65
1 fixing to be dragged back into it again,' but nothing
2 substantive, no, sir.
3 Q Who made such --
4 MR. MAZUR: I think you're both forgetting his
5 testimony about his conversation --
6 MR. KLAYMAN: Wait. Wait. Please.
7 MR. MAZUR: -- about his conversation with
8 Mr. Nussbaum, which you heard about earlier.
9 MR. KLAYMAN: This is -- you'll have an opportunity
10 to cross-examine.
11 MR. MAZUR: Right. There's no point in having a
12 whole thing like this when both you and Mr. Kennedy have
13 obviously forgotten that point.
14 THE WITNESS: I stand corrected.
15 MR. KLAYMAN: Certify this.
16 Please don't interrupt.
17 THE WITNESS: As I previously testified, I discussed
18 the FBI Files matter along the lines of my previous testimony
19 with Mr. Nussbaum at the time the story broke.
20 BY MR. KLAYMAN:
21 Q Now who offered this statement of commiseration that
22 you talked about before we were interrupted?
23 A I'm sorry, I can't recall.
24 Q In fact you're not even sure there was a statement
25 of commiseration, is that your testimony?
66
1 A I believe I testified that there might have been
2 some of those.
3 Q Has your involvement in the FBI Files or Travel Gate
4 controversies ever been a subject of discussions in
5 partnership meetings at the Rose Law Firm?
6 A Not in any partnership meetings I've been a part of,
7 Mr. Klayman.
8 Q When did you first start to work for the White House
9 Counsel's Office?
10 A The first week in February -- well I think I went on
11 the payroll February the 10th, 1993.
12 Q What position did you on the payroll for (sic)?
13 A Associate counsel to the President.
14 Q Now at the time that you took that position, did
15 someone describe to you your duties and responsibilities?
16 A Yes, sir.
17 Q Who described them to you?
18 A Mr. Foster.
19 Q And where were you when that description was made?
20 When you say "Mr. Foster," Vince Foster?
21 A Vince Foster.
22 Both in the West Wing of the White House and in the
23 Old Executive Office Building.
24 Q Was anyone else present at the time?
25 A Mr. Nussbaum may have been. I don't recall. I
67
1 don't recall anybody else. It would've been one of those two,
2 or both.
3 Q And what duties and responsibilities were described
4 to you as part of being associate counsel?
5 MR. GILLIGAN: Objection. Allow me a moment to
6 confer with my client, Mr. Klayman.
7 {Reporter's Note: Mr. Gilligan confers with
8 Ms. Paxton outside the hearing of the reporter.}
9 MR. GILLIGAN: You may respond, sir.
10 THE WITNESS: I was told that I was to head up the
11 clearance process involving the clearance of presidential
12 appointees.
13 And then subsequently I was told that part of my
14 duties would be to oversee the White House personnel security
15 process.
16 BY MR. KLAYMAN:
17 Q You were told that these were your two duties,
18 right?
19 A That's correct. Yes.
20 Q With regard to the first duty, did anyone describe
21 you the specifics of it? What was that, the clearance
22 process?
23 A No, sir. I had to learn that on my own.
24 Q No one told you what would be involved in the
25 clearance process?
68
1 A Well they told me what the clearance process was.
2 But how to do it, I had to learn on my own.
3 Q Well what did they tell you the clearance process
4 was?
5 A It was to clear persons suggested for presidential
6 appointment positions, which are generically referred to as
7 Schedule C employee.
8 Q Who told you that was your job?
9 A Either Mr. Foster or Mr. Nussbaum.
10 Q And that's all they told you?
11 A That's -- and then, as I said, subsequently they
12 told me that I would also oversee the White House personnel
13 security process.
14 Q So the White House personnel security process was
15 your responsibility, you were the supervisor?
16 A That's correct.
17 Q Did they tell you how you were to do that?
18 A No, sir. That was also something that I needed to
19 figure out.
20 Q Did they tell you how to try to figure that one out?
21 A They assumed that I would do what was required to do
22 so.
23 Q But they themselves didn't know what was required to
24 be done?
25 A I can't speculate what they knew or didn't know,
69
1 Mr. Klayman.
2 Q Did Mr. Foster or Mr. Nussbaum ever describe to you
3 what those two functions --
4 A Well, yes, they --
5 Q -- were specifically?
6 A Mr. Klayman, they told me what they wanted me to do,
7 which was to head up the clearance process for presidential
8 appointees. And then subsequently I was told that I was to
9 oversee the White House personnel security procedures process.
10 Q Who was to be your supervisor in terms of carrying
11 out those functions? Hillary Rodham Clinton?
12 A No, sir. Either Mr. Foster or Mr. Nussbaum.
13 Q And what role did either of them tell you they would
14 perform?
15 A Well they would do what they did, which one of them
16 was Deputy White House Counsel, and the other one was Counsel
17 to the President.
18 Q And who did they report to on the two functions that
19 you were assigned?
20 MR. MAZUR: Objection.
21 A You'd have to ask them, Mr. Klayman, who they
22 perceived they reported to. I mean, I can only assume it's
23 the President.
24 Q Why would you assume that?
25 A Because that's who they worked for.
70
1 Q Can you also assume it was Hillary Clinton?
2 MR. GAFFNEY: Objection to form.
3 A No, sir; I wouldn't make that assumption.
4 Q Why wouldn't you make that assumption?
5 A I don't have any basis to base it on.
6 Q During the time that you were at the White House,
7 did you ever have any contact written or oral with Hillary
8 Rodham Clinton over matters other than just personal matters?
9 A No, sir, not that I recall. I do not recall
10 reporting to her on official business.
11 I mean, Hillary is a friend of mine, who I know.
12 And I saw her socially. But I did not report to her on
13 official matters.
14 Q I didn't ask whether you reported. Did you ever
15 discuss with her anything dealing with official matters?
16 A I did not.
17 Q Never?
18 A No, sir.
19 Q Did you ever discuss with any member of her staff
20 any matter concerning official matters?
21 A I am certain that there were inquires from members
22 of her staff about people she was interested in in the
23 clearance process, where they stood in the process and things
24 of that nature.
25 I can't remember specifics, but I know there were
71
1 such inquiries.
2 Q And those inquires were made in writing?
3 A No, sir. Most of the time they were telephone
4 calls.
5 Q And who in the ordinary course would call you about
6 them?
7 A I'm sorry, I can't recall. It would've been any
8 number of people. I simply can't recall. But probably Maggie
9 Williams or whoever was the deputy chief of her staff at that
10 point in time.
11 Q Tell me how you set out to learn what you needed to
12 do in terms of the clearance process and overseeing the White
13 House Office of Personnel Security.
14 MR. GILLIGAN: Objection. Compound question.
15 Q Let's start with No. 1, the clearance process, how
16 did you learn what was entailed?
17 A I did what anyone would do, I read and I asked
18 questions of people who I thought could help me to learn.
19 Q And what did you read?
20 A There were and are manuals on security procedures,
21 which I read. And I asked questions of whoever I thought
22 could help.
23 Q What were the names of those manuals?
24 A I'm sorry, Mr. Klayman, I can't recall. They were
25 esoteric, as you might expect. But I cannot recall the names
72
1 of them, and I'm sorry. I simply cannot. There are manuals
2 on security procedures, which are available.
3 Q Where did you get the manuals?
4 A Out of the library in the OEOB. I got --
5 Q Old Executive Office Building?
6 A Yes, sir.
7 I believe also I got some assistance from the FBI.
8 They sent over a couple of manuals, which I returned. I think
9 that's probably it.
10 Q Who at the FBI sent the manuals?
11 A Jim Bourke, I believe.
12 Q What was discussed in those manuals specifically?
13 A Generic security procedures.
14 Q Were laws and regulations concerning those
15 procedures also discussed in the manuals?
16 A Yes, they were, I feel certain.
17 Q Including a discussion of the Privacy Act, correct?
18 A I don't recall whether the Privacy Act was in there.
19 It probably was somewhere, but I don't recall that with
20 specificity.
21 Q What else did you review besides these manuals, if
22 anything?
23 A Oh, memoranda written by previous members of the
24 Security Office, memoranda from Craig Livingstone as he
25 learned more about what he was supposed to do. I can't recall
73
1 everything. We were engaging in on-the-job training.
2 Q And it was your understanding, after reviewing those
3 manuals and memoranda, that the Privacy Act applied to
4 security procedures, clearance procedures?
5 MR. GILLIGAN: Objection to the vagueness of the
6 question and the fact that it calls for a legal conclusion --
7 Q You can respond.
8 MR. GILLIGAN: Yes, you may.
9 A I believed that the Privacy Act applied to these
10 procedures. But I've never had reason, you know, to request
11 memoranda or whatnot. I believe that it did.
12 Q And at all times in trying to carry out your
13 functions, you attempted to comply with Privacy Act
14 procedures?
15 A A better way to answer the question would be to
16 simply say that I tried to do what I was required to by the
17 law at all times.
18 Q Which included the Privacy Act?
19 A If it was applicable, yes.
20 Q And from time to time it wasn't applicable, correct?
21 MR. GILLIGAN: Objection. Calls for a legal
22 conclusion.
23 Q You can respond. Based on what you understood.
24 A Well, Mr. Klayman, you've got to give me specifics.
25 I don't -- I mean, it either applied or it didn't, depending
74
1 on what was going on at the time.
2 Q Releasing FBI files to the public, it's your
3 understanding that would be prohibited by the Privacy Act?
4 MR. GILLIGAN: Objection. Same objection.
5 Q Correct?
6 A Mr. Klayman, as I understand how the Privacy Act is
7 to work, that's probably something it's designed to stop, yes.
8 Q Did you receive any formal training in what was
9 required in terms of clearance procedures?
10 A Mr. Klayman, you know, formal is in the eye of the
11 beholder. I met with the FBI folks that did this work to
12 learn what they did and what they expected of us.
13 I also met with members of the Central Intelligence
14 Agency to learn what they did and what they expected of us and
15 how we could make it work best.
16 Now how one would characterize those as formal or
17 not, I don't know.
18 Q In reviewing these manuals, did you ever see
19 documents generated by prior administrations before the
20 Clinton Administration discussing whether or not the Privacy
21 Act was applicable to the White House?
22 A I do not recall seeing any such documents.
23 Q Did anyone bring such documents to your attention?
24 A I don't recall that being the case; no, sir.
25 Q Do you remember anyone ever discussing any such
75
1 documents while you were at the White House Counsel's Office?
2 A No, sir; I don't remember the issue coming up.
3 Q When you first began to work in White House
4 Counsel's Office, who was there with you, who were your
5 coworkers?
6 A Bernard Nussbaum was Counsel to the President; Vince
7 Foster was Deputy White House Counsel; Ron Klain; Beth Noland;
8 Cheryl Mills; Cliff Sloan; Steve Nuerith; subsequently Chris
9 Cerf.
10 There are probably others. I can't remember -- I'm
11 sorry if I can't give you a precise roster of who was there in
12 1993. I think I've gotten most of them. Probably forgotten
13 somebody.
14 Q When you took over this function of being in charge
15 of clearance procedures, did anyone bring to your attention
16 any materials from the Reagan Administration?
17 A I don't recall there being anything from the Reagan
18 Administration.
19 Q And you never saw any such materials during the time
20 you worked in the White House Counsel's Office?
21 A Mr. Klayman, I have seen thousands of documents. I
22 had probably the most paper intensive job in the White House.
23 And I cannot say that I didn't see anything from the Reagan
24 Administration.
25 For example, I am certain that somewhere, somehow I
76
1 probably saw a background emanating from that time. But --
2 Q What do you mean by "background"?
3 A FBI background.
4 But as far as legal memoranda, I'm sorry, I might
5 have. I simply don't recall that.
6 Q Do you remember any materials from the Reagan
7 Administration relating to the Privacy Act?
8 A No, sir. I'm sorry, I do not.
9 Q During your period of time at the White House, it
10 wasn't your practice, was it, to disseminate materials in
11 violation of the Privacy Act; correct?
12 A No, sir.
13 Q And you understood that you had to adhere to the
14 strictures of the Privacy Act?
15 MR. GILLIGAN: Objection. Mischaracterizes the
16 record.
17 Q You can respond.
18 A To the extent that the Privacy Act applied to what I
19 was doing, then I had to comply with it. I had to comply with
20 the law; yes, sir.
21 Q And you understood that there were some functions
22 that you were assigned that did fall within the ambit of the
23 Privacy Act?
24 MR. GILLIGAN: Objection. Mischaracterizes the
25 record.
77
1 Q You can respond.
2 A Mr. Klayman, as I testified before, I did everything
3 I could to comply with the law. There were a bunch of them.
4 And to the extent the Privacy Act applied to what I was doing,
5 I did everything I could to stay within the ambit of the law.
6 Q Right. And you always complied with that law,
7 correct?
8 MR. GILLIGAN: Same objection.
9 A To the extent that it applied, Mr. Klayman, I would
10 do my damndest to comply with it.
11 Q And you understood that it did apply in certain
12 circumstances?
13 MR. GILLIGAN: Same objection. Calls for a legal
14 conclusion.
15 Q You can respond.
16 A Mr. Klayman, to the extent that it applied to what I
17 was doing, yes, sir, it would apply, to the extent that it
18 applied.
19 I think we're getting kind of circular, but...
20 Q You understood that you couldn't take documents out
21 of Government files and send them to the media, correct?
22 A Absolutely. There would be a general prohibition
23 against that.
24 I mean, but there would be many other prohibitions
25 against doing that other than the Privacy Act.
78
1 Q What are the other prohibitions that you know of?
2 A Could be laws related to national security in
3 certain circumstances. The unauthorized release of government
4 records in general is subject to statutes.
5 The records I was dealing with are also Presidential
6 records; they're governed by the Presidential Records Act,
7 which has its own structure, as I understand it, with regard
8 to dissemination to those records. That's just for example.
9 Q And you understood that you couldn't take documents
10 out of Government files and just provide them to people
11 outside the White House or to people outside the Clinton
12 Administration, correct?
13 MR. GILLIGAN: Object to the vagueness --
14 Q You can respond.
15 MR. GILLIGAN: Object to the extent it calls for a
16 legal conclusion.
17 He can respond after I'm done with my objections,
18 Mr. Klayman.
19 Let me start again. Object to the vagueness, I
20 object to the extent it calls for a legal conclusion.
21 A Government records had to be handled in accordance
22 with law.
23 Q And you knew that you just couldn't take them out of
24 the White House and give them to people that didn't have
25 relationship with the White House, correct?
79
1 MR. GILLIGAN: Same objection.
2 Q You knew that?
3 MR. GILLIGAN: Add to that asked and answered.
4 A I knew that they had to be handled in accordance
5 with the law. And if a particular statute prohibited such
6 behavior, then you could not do that.
7 Q But you couldn't take a document out of White House
8 files, for instance, and give it to one of your friends that
9 had no relationship to the White House? You knew that?
10 MR. GILLIGAN: Same slew of objections.
11 Q Correct?
12 A Generally that would be my understanding,
13 Mr. Klayman, that that would be prohibited; yes, sir.
14 Q I'm sorry I interrupted you. You were naming the
15 people who worked with you in the White House Counsel's Office
16 when you first started working.
17 A Mr. Klayman, I actually did that. I'm sorry, there
18 were about, I believe, eight or nine associate White House
19 counsels. I think I got most of them.
20 There's turnover in that office, and I may not have
21 gotten them all.
22 Q Who was the administrative staff in that office at
23 the time that you worked there? Name all the people you can
24 remember. Let's start with your secretary or assistant,
25 whatever you called him or her.
80
1 A Mr. Klayman, her first name was Martha. I'm sorry,
2 I can't remember her last name.
3 Q Do you know where she is today?
4 A I do not. I do not.
5 Q Where did she live?
6 A I don't know.
7 Q Was she your secretary throughout?
8 A No, sir. We didn't have secretaries. We didn't
9 have enough staff. She was the jack-of-all-trades I described
10 previously at that time.
11 Q Was she the jack-of-all-trades for you or for
12 everybody?
13 A She was the jack-of-all-trades for everybody in that
14 office.
15 Q Who else worked in the administrative or support
16 staff in the office while you were there?
17 A Mr. Klayman, I cannot remember them all. And for
18 that I apologize. Deb Gorham, Betsy Pond --
19 Q Tell me if you know whether these people are still
20 there or not.
21 A I don't believe that Betsy Pond is still there. I
22 don't believe that Deb Gorham is still there, but I -- you
23 know, they may have come back to work there for all I know.
24 There was a young man named Edgar Bueno.
25 Q B-u-e-n-o?
81
1 A B-u-e-n-o.
2 Q Do you know where he lived at the time?
3 A No, sir. I'm sorry, I do not.
4 Q Do you know where he is today?
5 A I do not.
6 Q Who else?
7 A You're exhausting my knowledge.
8 There were others I'm trying to remember. I think
9 there was another jack-of-all-trades assistant. I want to say
10 Linda, but don't hold me to that. And I can't remember her
11 last name.
12 Q Tripp?
13 A No. This would be a different Linda.
14 Q Do you know where she is today?
15 A No, I do not.
16 Q You did know a Linda Tripp, did you not?
17 A I came to know Linda Tripp. At the time I started,
18 I don't believe Linda Tripp was employed in the Counsel's
19 Office.
20 Q Well I'm asking you for the entire time that you
21 were there, all the people you can remember that worked in a
22 support group.
23 A Linda Tripp did come to work in the Counsel's
24 Office.
25 Then there were detailees and volunteers. I just
82
1 simply can't remember all their names.
2 Q Do you remember anybody else?
3 A No, sir. And I'm trying, Mr. Klayman.
4 There was Betsy Pond, Deb Gorham, Linda Tripp came.
5 There were others that worked in the front office there. And
6 then there were a number of detailees and volunteers.
7 Q Well I take it that --
8 THE VIDEOGRAPHER: You might want to reask. That
9 might be on the tape {referencing siren}.
10 Q I take it that Mr. Foster had his own secretary,
11 that was Deborah Gorham?
12 A That's correct.
13 Q Why did he have his own secretary?
14 A He was deputy White House Counsel.
15 Q So at the level of Deputy and up you had your own
16 secretary?
17 A That's generally correct, yes.
18 Q As Associate Counsel, you don't have your own?
19 A That's correct. We didn't have enough people.
20 Q Who was Mr. Nussbaum's secretary when you worked
21 there?
22 A It started out being Betsy Pond. I think Linda
23 Tripp moved into that position. Bernie actually had two
24 assistants. And there were others, I just simply can't
25 remember.
83
1 Q Who were those two assistants?
2 A Betsy Pond and Linda Tripp, for a while. Linda
3 Tripp, as I said, came not at the outset.
4 Q Bruce Lindsey, what was his position?
5 A At what point, Mr. Klayman?
6 Q At any point.
7 A He started off being Director of the Office of
8 Presidential Personnel. And then he subsequently became a
9 Deputy White House Counsel, I believe.
10 Q Do you know when he became Deputy White House
11 Counsel?
12 A No, sir; I don't know the precise date.
13 Q And at that point he moved into the suite with you
14 at the White House Counsel's Office?
15 A No, sir. I have never officed with Bruce Lindsey.
16 Q How is the White House Counsel's Office configured?
17 is there a large suite? is it just a bunch of offices on a
18 hallway? how does it work?
19 A Well I can only talk to you about when I was there,
20 obviously. I don't know how they're organized now.
21 But you had offices in the West Wing, which were
22 offices of the Deputy White House Counsel and offices of
23 Bernard Nussbaum. There were support staff outside those
24 offices in the West Wing.
25 Then on the first floor of the OEOB, the best way to
84
1 describe this is string of offices on the first floor. In
2 some cases they were individual offices, in some cases they
3 were actually office suites.
4 Q Can you draw just a general configuration of the
5 main suite in the White House Counsel's Office? That's in the
6 West Wing?
7 A I would assume that's what you would mean by "main
8 suite." A better way to say it would be that's where the
9 Deputy and the Counsel to the President are located.
10 Q We're going to give you a piece of paper. We won't
11 hold you to any scale.
12 I'd like you to draw me a general configuration.
13 And show me who occupied which office and support post
14 positions while you were in the White House Counsel's Office.
15 A Now what are you wanting me to draw, the West Wing
16 or the OEOB?
17 Q West Wing first.
18 MR. KLAYMAN: And we'll call that Exhibit 14.
19 MR. GILLIGAN: Why don't we call it Exhibit 15?
20 MR. KLAYMAN: Fifteen (15). Okay.
21 {Reporter's Note: The witness complies.}
22 MR. GILLIGAN: We'll mark this as Exhibit 15, is
23 that correct, Mr. Klayman?
24 MR. KLAYMAN: Yes.
25 {The document referred to was marked for
85
1 identification as Deposition Exhibit No. 15
2 and is attached.}
3 BY MR. KLAYMAN:
4 Q Looking at Exhibit 15, you've marked an office
5 Counsel to the President. That would be Bernie Nussbaum,
6 correct?
7 A At that time; yes, sir.
8 Q Deputy White House Counsel was Vince Foster?
9 A Yes, sir; at that time.
10 Q And who replaced Vince Foster after he died?
11 A Joel Klein.
12 Q So he would've occupied that office then, correct?
13 A That's correct.
14 Q And then you had four administrative posts?
15 A Yes, sir; at that time.
16 Q And who sat at each one of those posts?
17 A I'm sorry, I can only identify three of them: Betsy
18 Pond, Linda Tripp, Deb Gorham. I simply cannot remember, when
19 I got started, who was there in the fourth position.
20 Q Let's draw as Exhibit 16 a chart for the OEOB.
21 A Okay.
22 MR. GILLIGAN: I'm going to step out while the
23 witness does that, but I'll be right back, and we can proceed.
24 A Mr. Klayman, I'm going to draw this as best I
25 remember when I first got there. I assume that's what you
86
1 want?
2 Q Yes.
3 {Reporter's Note: The witness complies.}
4 A Let me have another piece of paper.
5 MR. GILLIGAN: Mr. Klayman, I'm good at drawing
6 pictures. Do you want me to draw you one?
7 MR. KLAYMAN: I know you're good at that. You're a
8 cartoonist.
9 MR. GILLIGAN: I should have been a cartoonist.
10 MR. KLAYMAN: I stipulate to that.
11 MR. KLAYMAN: We might as well change the tape right
12 now. We have 2 minutes left.
13 THE VIDEOGRAPHER: We're going off the record. The
14 time is 12:06.
15 {Reporter's Note: At 12:06 p.m., the reporter was
16 asked to go off the record; testimony resumed at 12:13 p.m.}
17 THE VIDEOGRAPHER: We're back on the record. The
18 time is 12:13 p.m. This is the second videotape in the
19 deposition of William Kennedy.
20 My name is Bill Gregg. I'm a legal videographer
21 from Legal Video & Communications of 2915 Kavanaugh, Little
22 Rock.
23 And today is still October 15th, 1998, and we're
24 still on South Arch Street at Hendrix Court Reporting in
25 Little Rock, Arkansas.
87
1 BY MR. KLAYMAN:
2 Q Mr. Kennedy, you've drawn a organogram (phonetic) of
3 the OEOB --
4 A I did the best I could, Mr. Klayman.
5 MR. KLAYMAN: This is Exhibit 16.
6 {The document referred to was marked for
7 identification as Deposition Exhibit No. 16,
8 and is attached.}
9 Q You've listed the offices of various associate White
10 House counsels. Have you listed all the associate White House
11 counsels that were occupying these offices when you were at
12 the White House, or are there more that you haven't mentioned
13 yet this morning?
14 A Well it's a rolling target. As I said, I think
15 there were eight or nine of us when I started. I think that
16 number increased some while I was there. And I don't know
17 what it is now.
18 Q Who were all the associate White House counsels when
19 you were there?
20 A As I've indicated previously, I tried to name the
21 ones that were there when I started. And I think I got most
22 of them.
23 I don't think I could name them all, Mr. Klayman. I
24 mean, people would leave, people's titles would change. I
25 mean, I'll do the best I can. But I was there almost 2 years,
88
1 and some people left and some people came on. It'd be --
2 Q Well are there any other people? That's all I'm
3 asking --
4 A Well --
5 Q -- that you haven't mentioned?
6 A I think Kathy Waylan (phonetic) ultimately became an
7 associate White House counsel. I think Marvin Krislov
8 (phonetic) ultimately became an associate White House counsel.
9 Victoria Radd became an associate White House counsel.
10 That's all I can recall right now.
11 Q Lanny Brewer, does that name ring a bell?
12 A He was not there when I was there.
13 Q Now you've detailed the configuration of the OEOB.
14 Are there places where, other than the four
15 assistants or secretaries to Mr. Nussbaum and Mr. Foster,
16 subsequently Mr. Klein, where support people would position
17 themselves?
18 A Yes.
19 Q And how could that be shown?
20 A Well I drew in a couple of desks.
21 Part of the problem of doing this, Mr. Klayman, is
22 this is once again a rolling target. Our office space and
23 configuration changed while I was there. And the location of
24 people, both counsels and staff members, changed while I was
25 there.
89
1 I mean, we lost office space and got office space.
2 And we had detailees that ebbed and flowed. Our office
3 configuration was changed. So this is a lot harder to answer
4 than it seems. It was not static.
5 Q List for me, after you did your review of all the
6 manuals and memoranda and everything else, specifically what
7 your duties and responsibilities were in overseeing the
8 clearance procedures?
9 MR. GILLIGAN: Asked and answered.
10 But go ahead.
11 A That's what I did is oversee the clearance
12 procedures for Presidential nominees. In other words, I was
13 the head of that process. I ran it. And then I oversaw the
14 Office of White House Personnel Security.
15 Q In undertaking the clearance procedures, what types
16 of information did you understand was to be reviewed in
17 clearing an appointee?
18 A We were to receive, if I remember correctly, an
19 SF86, a personal data statement, information from the IRS, a
20 what we refer to as a name check, which would also come from
21 the FBI, an FBI background summary, and possibly information
22 from other sources, depending on that person's background.
23 And I, as a point of clarification, Mr. Klayman,
24 that's not true about every single applicant. The information
25 mix would change based upon the position for which an
90
1 applicant was being considered.
2 Q Were there different classes of applicants?
3 A Different classes of positions.
4 Q How did that break out?
5 A Generally you had what we refer to as PAS's, which
6 are Presidential appointees subject to Senate confirmation,
7 and PA's, which are Presidential appointees not subject to
8 Senate confirmation. And then you moved into the echelons, as
9 it were, in the departments.
10 Q Were you responsible for the Presidential appointees
11 subject to Senate confirmation?
12 A Yes.
13 Q Was there anyone else who was primarily responsible
14 for the other appointees?
15 A No. I had them all.
16 Q In terms of IRS materials, what type of IRS
17 materials were provided in these clearance procedures?
18 A There is an IRS summary which basically lets you
19 know whether or not the IRS considers those people to be
20 current in filing their tax returns.
21 Q Do you know who reviewed the IRS summary for you
22 when you matriculated to the White House?
23 A I do not know that for a fact, Mr. Klayman. I
24 believe it was Mr. Foster. It may have been Mr. Nussbaum. I
25 do not know.
91
1 Q You were ultimately dismissed from the White House
2 because of questions concerning taxes, correct?
3 A No, sir.
4 Q You were dismissed from the White House, though;
5 correct?
6 A No, sir.
7 Q You resigned?
8 A Yes, sir.
9 Q Were you asked to resign?
10 A No, sir.
11 Q During the time that you were at the White House
12 there were issues involving the payment of so-called Nanny
13 Taxes, correct?
14 MR. GILLIGAN: Objection to the relevance, to the
15 vagueness.
16 A With regard to what, Mr. Klayman?
17 Q Paying taxes to housekeepers.
18 A That was a big issue at the White House.
19 Q And it was publicly reported that you became part of
20 that, correct?
21 A Mr. Klayman, you've got to be more specific when you
22 say "part of that."
23 Q You were reported not to have paid certain taxes
24 concerning housekeepers, correct? I'm talking about public
25 information.
92
1 MR. GILLIGAN: Same objections.
2 A There were allegations to that effect, yes.
3 Q At the time that you started to work at the White
4 House, did anyone raise any issues with you concerning payment
5 of taxes for housekeepers?
6 MR. GILLIGAN: Hold on. We've got privilege issues
7 here depending on what sort of an answer the witness can give
8 in response to that. There may be attorney/client issues,
9 Presidential communications issues, or deliberative process
10 issues.
11 {Reporter's Note: Mr. Gilligan confers with
12 co-counsel outside the hearing of the reporter.}
13 MR. GILLIGAN: Can I have the question back, please?
14 THE REPORTER: At the time that you started to work
15 in the White House, did anyone raise any issues with you
16 concerning payment of taxes for housekeepers?
17 And that's when you objected.
18 MR. GILLIGAN: Okay.
19 Will you suffer me to ask a point of clarification,
20 Mr. Klayman, or will you yell at me for allegedly tipping off
21 the witness?
22 MR. KLAYMAN: Probably the latter.
23 MR. GILLIGAN: Then I'm going to have to -- well can
24 we ask the witness to step outside the room, and I can ask you
25 what the clarification is?
93
1 MR. KLAYMAN: Sure.
2 MR. GILLIGAN: Mr. Kennedy, if you would.
3 THE VIDEOGRAPHER: Are we going off the record?
4 MR. GILLIGAN: No, we are not.
5 THE WITNESS: You all will miss me while I'm gone.
6 {Reporter's Note: The witness exits.}
7 MR. GILLIGAN: Talking about his personal alleged
8 Nanny Tax problems or in general?
9 MR. KLAYMAN: I'm just trying to figure out how it
10 works. I mean how, for instance, his problems were or were
11 not picked up in this whole clearance process.
12 MR. GILLIGAN: Well I fail to see the relevance of
13 it.
14 If you're talking about -- even if you're talking
15 about -- your asking -- the question is then: Did anybody in
16 the White House ever talk with him about his alleged Nanny Tax
17 problem. If that's the question, I'll allow him to answer yes
18 or no to that, I suppose.
19 MR. KLAYMAN: Well let's start with that. This
20 wasn't really a big area. I'm trying -- I'm just trying to
21 get it in context of his own situation how the process worked.
22 MR. GILLIGAN: That's irrelevant. And if you get
23 into --
24 MR. KLAYMAN: That's not irrelevant despite
25 Ms. Paxton's statement. I prefer to get his testimony, not
94
1 Ms. Paxton's.
2 MR. GILLIGAN: Well you're not getting anybody's
3 testimony at this time. Ms. Paxton's comments, as usual, are
4 insightful and valuable.
5 MR. KLAYMAN: Well we'll have an opportunity someday
6 perhaps to get them in a more formal way.
7 MR. GILLIGAN: You try.
8 Mr. Kennedy, please return.
9 {Reporter's Note: The witness returns.}
10 MR. GILLIGAN: I believe Mr. Klayman and I have
11 agreed that the question is: Did anybody in the White House
12 ever discuss with you your alleged Nanny Tax issue, to which I
13 would allow you, sir, to answer yes or no.
14 BY MR. KLAYMAN:
15 Q The question was --
16 MR. KLAYMAN: And the way you posed it, actually I
17 have a question as to whether it's relevant. But the question
18 I posed is relevant.
19 Q In the course of the White House reviewing your
20 background materials, did anyone raise this issue?
21 A Yes.
22 Q Who?
23 A I discussed it with Mr. Foster.
24 Q The SF86 form, what is included in an SF86 form?
25 A The best way I can answer that is to say generic
95
1 background information. If I remember correctly it's, you
2 know, where a person has lived, educational background, I
3 believe employment history.
4 Q Prior arrest records?
5 A I don't think the form does that, but don't hold me
6 to that.
7 I can't remember the specifics of it, but it
8 probably gets into, you know, have you ever been arrested.
9 The more I think about it it probably does. I think those are
10 the general categories.
11 Q Who generates the SF86, what agency?
12 A It's a generic Government form and used by
13 everybody, as I understand it, Mr. Klayman, so I would assume
14 the GSA.
15 Q It's something that a prospective employee has to
16 fill out to be considered for employment in the Federal
17 Government?
18 A I cannot speak to the entire Federal Government.
19 But to, to go through the clearance process either as a
20 Presidential appointee or for employment in the White House,
21 you had to have one on file.
22 Q Do you know who fills it out, who's responsible for
23 filing it out?
24 A The employee, the prospective employee or appointee.
25 Q Did you fill such a form out?
96
1 A Yes, I did.
2 Q Now you also referred to name checks from the FBI.
3 Those were the types of materials that entered into the
4 clearance process. How is that information, to the best of
5 your knowledge, gathered and disseminated to the White House
6 by the FBI?
7 A The White House requests the name check, which in
8 turn comes back from the FBI.
9 Q And how does that information come back? In what
10 form?
11 A It comes back in written form.
12 Q Does the document say "Name Check"?
13 A I'm sorry, Mr. Klayman, I can't remember how it's
14 titled. It probably has a more formal title than that. And I
15 apologize, I can't remember what its title was.
16 Q Now you also stated that part of the clearance
17 process entailed obtaining an FBI background summary, correct?
18 A Depending on the position, that's correct.
19 Q And that came from the FBI?
20 A Yes.
21 Q And what is comprised in an FBI background summary?
22 What is that?
23 A Well it is, unfortunately, exactly what it says. It
24 is a summary of background information gathered by the FBI.
25 Q And how does the FBI gather that background
97
1 information?
2 A Well you'd have to ask for them exactly what they
3 do. But they, I assume, use a variety of sources to generate
4 the information, including agent interviews with people.
5 Q It's a compilation of materials which come from an
6 FBI background security check, is that what it is?
7 A Mr. Klayman, it's -- well I'm -- it's a compilation
8 of materials gathered by the Federal Bureau of Investigation
9 in the process of performing a background on an individual.
10 Q Is it part of a file on an individual that the FBI
11 compiles?
12 A Mr. Klayman, I don't know how the FBI organizes or
13 archives its material, so I can't answer that.
14 Q How is it delivered by the FBI to the White House in
15 terms of clearance procedures?
16 MR. GILLIGAN: Object to the vagueness.
17 Q You can respond.
18 A In written form.
19 Q And does it come in a particular sealed envelope or
20 other type of receptacle?
21 A It arrives in a sealed envelope.
22 Q Which is included in a file, a file folder?
23 A No. They come just as they are, in summary form.
24 They're just pieces of paper stapled together.
25 Q In the course of your duties and responsibilities at
98
1 the White House, how were they delivered by the FBI?
2 A By courier.
3 Q Did someone have to sign for those summary forms?
4 A Yes, they did.
5 Q Who signed for them?
6 A I believe the office of White House personnel
7 security signed for them.
8 Q So it would've been, at the time, Craig Livingstone
9 who signed for them?
10 A At the time we started, yes.
11 Q Was anyone else in that office in charge to sign for
12 them?
13 A I can't answer that with particularity. I don't
14 believe so.
15 Q Did you ever set up a procedure to determine who
16 would sign for those FBI summaries, background summaries?
17 A I believe at the outset that we determined that
18 Craig would sign for those.
19 Q Was that determined in writing?
20 A I don't believe so. I don't think we felt the need
21 to put that in writing.
22 Q Were there logs kept of signing for the summaries
23 when they came over from the FBI?
24 A I don't believe that logs were kept for the signing.
25 But the summaries themselves, there was a record kept of them.
99
1 Q What kind of record was kept of them?
2 A Well the summaries themselves would go into an
3 employee's file.
4 Q Well how was that keeping a record?
5 A The files were checked for having what they needed
6 to have in them, for example. And that's how they were
7 checked.
8 I mean, a person could not progress through the
9 clearance process, for example, if he had to have a background
10 done until he had that background done. And that's how the
11 files were checked.
12 Q But there was no signing system at the White House
13 to report what summaries from the FBI were being obtained?
14 A There probably was a log in the Office of White
15 House Personnel Security for that. And certainly there was a
16 check and double check on up the line from that.
17 Q When you say "probably," you don't know of any such
18 logs however?
19 A I don't know the specifics of exactly how the Office
20 of White House Personnel Security operated on this technical
21 question. I do not. Probably there was a log. I just can't
22 say with particularity whether there was or wasn't.
23 Q From time to time were these FBI summaries returned
24 to the FBI, the ones that were delivered from the FBI to the
25 White House?
100
1 A No. That would be extremely rare, extremely rare.
2 Once they came to us they were considered to be part of
3 Presidential records, and dealt with as such.
4 Q So based on your experience and responsibilities,
5 any FBI summaries that were obtained when you were at the
6 White House are still at the White House?
7 A As far as I know, yes.
8 Q And you don't know of any that have been returned to
9 the FBI?
10 A Mr. Klayman, from time to time the FBI would ask for
11 one back, but only, to the best of my recollection, for
12 clerical reasons, i.e, they had sent one over erroneously that
13 was incomplete, in other words, that they hadn't finished yet,
14 or sent one over that was missing a page or two. I think that
15 happened once or twice. It was extremely rare.
16 Q The question was whether you knew of any FBI
17 background summaries that have been returned to the FBI from
18 the White House. You don't know of any, correct?
19 A I do not know of any, other than what I just
20 testified to.
21 Q Now from time to time did the FBI deliver over to
22 the Office of Personnel Security or the White House Counsel's
23 Office something more than just background summaries and name
24 checks?
25 MR. GILLIGAN: Object to the vagueness, the compound
101
1 nature of the question.
2 You can respond.
3 A If we felt the need, we could request what we
4 referred to as raw data.
5 Q And what was raw data?
6 A Raw data would be the actual source of what might be
7 contained in a summary.
8 Q So the raw data would be the FBI file on a person
9 him or herself?
10 A No.
11 We tried to be and they tried to be as specific as
12 they could. If there was an issue in a background that we
13 felt like we had to have more information on, we would request
14 that specifically as to that issue, and they would respond in
15 that way.
16 Q During the period that you were at the White House
17 did you ever request all the raw data that the FBI had on a
18 particular person?
19 A I don't recall doing so, Mr. Klayman.
20 It is possible that there was a background there
21 were so many issues in that I said, you know, `Send me all
22 your raw data.' I don't recall doing so, but I want to be
23 clear that it may have happened. If it had, it would be
24 extremely rare.
25 Q Well I take it there were circumstances when you
102
1 asked for particular types of raw data?
2 A Correct.
3 Q And what particular types of raw data did you ask
4 for during the time you were at the White House?
5 A I would not know what to ask for because I would not
6 know unless it was apparent from the context of the background
7 what to ask for.
8 Generally I would say, `I have this issue, and I
9 need the raw data on this issue.'
10 Sometimes from the context of the background I would
11 know, for example, that it was an interview, and I would ask
12 for the raw data on the interview.
13 Q I take it you kept a listing of the individuals
14 whose raw data you requested? You or anyone else in the White
15 House Counsel's Office or Office of Personnel Security.
16 A No, sir. We did not. The information would go into
17 that person's file. But I don't believe there was a separate
18 listing of that.
19 Q You didn't request the raw data orally, did you?
20 A Yes. Telephone conversations most of the time, if
21 not all of the time.
22 Q You had to put that request in writing as well, did
23 you not?
24 A No, sir. We had a good working relationship with
25 the FBI, and I would usually call and ask for that
103
1 information.
2 Q And who did you call to ask for the raw data?
3 A Generally Mr. Bourke or an individual by the name of
4 Ernie Johnson, Ernest Johnson.
5 Q And who was Bernie Johnson? Earnest, you said?
6 A Earnest.
7 Q And his nickname is Bernie?
8 A No, sir. I said Ernie.
9 Q Okay. Ernie, not Bernie.
10 A Ernie Johnson.
11 He headed up the FBI unit that dealt with
12 investigations of U.S. attorneys and judges.
13 Q Did you ever order up the FBI data on any judges,
14 raw data?
15 MR. GILLIGAN: Just a moment here.
16 {Reporter's Note: Mr. Gilligan confers outside the
17 hearing of the reporter.}
18 MR. KLAYMAN: The witness has asked to confer with
19 me on this question, Mr. Klayman. For that reason, we're
20 going to leave the room.
21 MR. KLAYMAN: I didn't hear that.
22 THE WITNESS: I need to speak with my counsel on
23 this issue.
24 MR. KLAYMAN: Off the record.
25 THE VIDEOGRAPHER: We are going off the record. The
104
1 time is 12:38.
2 {Reporter's Note: At 12:31 p.m., the reporter was
3 asked to go off the record; testimony resumed at 12:42 p.m.}
4 THE VIDEOGRAPHER: We're back on the record. The
5 time is 12:42.
6 THE WITNESS: Can I ask that the last question be
7 repeated, please?
8 MR. KLAYMAN: You can read it back.
9 THE REPORTER: Did you ever order raw data on --
10 Excuse me just a minute.
11 -- order FBI data on judges, raw data?
12 Did you get that?
13 MR. KLAYMAN: I can repeat it.
14 THE WITNESS: That's fine.
15 BY MR. KLAYMAN:
16 Q Did you ever request raw data on judges?
17 A In the performance of my duties, yes.
18 Q Were these judges that were up for possible
19 appointment?
20 A Yes.
21 Q Did you ever request raw data on Republicans?
22 A Mr. Klayman, I had no way of knowing what an
23 individual's political persuasion was. That's a question that
24 was not asked during the process.
25 One could assume, of course, that since we were
105
1 Democratic, they were Democratic. But I want to make it clear
2 we had no way of knowing what somebody's true leanings were.
3 Q Did you ever request raw data on Independents?
4 A Same answer. I don't know what the person's
5 political leanings were.
6 Q Did you ever request raw data on persons affiliated
7 or part of public interest groups?
8 A If they were in the -- it's possible if they were
9 members of public interest groups and were being considered
10 for an appointment, yes, in the performance of my duties.
11 Q So there was no written procedure to request raw
12 data?
13 A No, sir.
14 Q You weren't the only one who had the ability to
15 request raw data, were you, from the FBI?
16 A Generally, yes.
17 Q Mr. Livingstone could request raw data, could he
18 not?
19 A Craig was supposed to do that only through me.
20 When I said "generally" what I meant was is that
21 certainly Mr. Foster or Mr. Nussbaum could if they so chose.
22 Q Was there anything committed to writing that
23 described who could request raw data from the FBI and who
24 could not?
25 A I don't recall that being the case. There was an
106
1 understanding with the FBI certainly as to who could do so.
2 Q Who made that understanding with the FBI?
3 A The White House Counsel's Office did with the FBI.
4 Q And who in the White House Counsel's Office?
5 A Myself primarily.
6 Q You made that understanding?
7 A Yes. We worked out that procedure with the FBI.
8 Q And who did you have the understanding or procedure
9 with?
10 A Mr. Johnson and Mr. Bourke, the head of the
11 respective units within the FBI that did this work.
12 Q What specifically did you say to Mr. Johnson and
13 Mr. Bourke that got them to agree to providing raw data on
14 oral requests?
15 A This was the process. This was part of the process.
16 Q And what did you tell them?
17 A I didn't have to convince them to do anything. This
18 is what we did. This was the process.
19 Q Was there anything in writing that this was the
20 process in prior administrations?
21 A I can't answer that, Mr. Klayman. I don't believe
22 so, but there may well be. I don't know.
23 Q Has anyone ever told you that this was the process
24 in prior administrations, that you could request raw data
25 orally?
107
1 A I believe both Ms. Dannenhauer and Ms. Gemmell did.
2 Q And who are Ms. Dannenhauer and Ms. Gemmell?
3 A Dannenhauer -- and don't ask me to spell it because
4 I don't think I could -- and Nancy Gemmell.
5 They were employees of the office of White House
6 Personnel Security from previous administrations.
7 Q And they told you that in previous administrations
8 you could just call up the FBI and have them send raw data on
9 anybody?
10 A No, sir; Mr. Klayman, they did not say that.
11 Q What did they say?
12 A They said that in the furtherance of performing my
13 duties in the clearance process that if there were issues
14 arising from a background that I could request the raw data
15 with respect to those issues if I felt the need.
16 Q Did you ever specifically instruct the FBI not to
17 provide raw data upon request to Mr. Livingstone?
18 A I don't believe Mr. Livingstone ever got raw data.
19 Q That's not the question. Did you ever instruct the
20 FBI not to provide raw data to Mr. Livingstone?
21 A I don't recall doing so, Mr. Klayman. I don't think
22 I felt the need to do so.
23 Q Did you ever instruct the FBI not to provide raw
24 data to Mr. Marceca, Anthony Marceca?
25 A I don't recall doing so, because I don't think I had
108
1 the need to do so.
2 Q So the FBI was under no instructions as to whether
3 or not it could provide raw data to either Mr. Livingstone or
4 Mr. Marceca?
5 A Not from me, Mr. Klayman. But you'd have to ask
6 them what they thought their instructions were.
7 Q Do you know whether the FBI was ever on instructions
8 from anyone not to provide raw data to Mr. Livingstone or
9 Mr. Marceca?
10 A You'll have to ask them what they perceived their
11 instructions to be, Mr. Klayman.
12 Q You don't know?
13 A I don't know.
14 Q You're the guy who was in charge, weren't you?
15 MR. GILLIGAN: Objection. Mischaracterizes the
16 record.
17 A In charge of what, Mr. Klayman?
18 Q The whole clearance process.
19 A That is correct.
20 Q So you're the guy who should've instructed the FBI
21 one way or the other, correct?
22 A Mr. Klayman, you're making an assumption that such
23 instructions had to be issued. I don't agree with that
24 assumption.
25 Q Did anyone instruct the FBI that it could provide
109
1 raw data to Mr. Nussbaum or Mr. Foster or his successor,
2 Mr. Klein?
3 A I believe that that was part of the procedure that
4 we worked out in 1993. Yes, if they requested it they could
5 have it. They were my superiors.
6 Q Did you specifically tell the FBI that your
7 superiors could get raw data?
8 A I told them, if I recall correctly, that most of the
9 requests would come from me, but that I had two superiors who
10 could request it if they needed to.
11 Q Did you specifically tell the FBI that Mrs. Clinton
12 could not request raw data?
13 MR. GAFFNEY: Objection to form.
14 Q You can respond.
15 A I never discussed Mrs. Clinton with the FBI in this
16 context or basically any other context.
17 Q Did you ever discuss the position of the First Lady
18 generically speaking with the FBI?
19 A No, sir; I did not.
20 Q It was your understanding that the First Lady had no
21 authority to play any role in matters involving clearance
22 procedures, correct?
23 MR. GAFFNEY: Objection to form.
24 A Mr. Klayman, as far as I -- as far as I knew at the
25 time, she didn't have a role to play in the clearance process.
110
1 Q And it was your understanding that she had no
2 business playing a role in any official function with regard
3 to the operation of the White House, correct?
4 MR. GAFFNEY: Objection to form.
5 A Mr. Klayman, I don't have an opinion on that. I
6 simply don't know where the bounds of that question are.
7 Q During the time that you worked in the White House
8 or thereafter did you learn what role, if any, Mrs. Clinton
9 played in official functions?
10 MR. GAFFNEY: Objection to form.
11 A She obviously acts as First Lady, I know that,
12 Mr. Klayman. And one could say that those are her official
13 duties.
14 Q You are aware that she played some role in the
15 Travel Office matter, are you not?
16 MR. GAFFNEY: Objection to form.
17 MR. GILLIGAN: Objection. Irrelevant. Irrelevant.
18 Mischaracterizes record.
19 A Mr. Klayman, there have been press reports to that
20 effect, of which I am aware.
21 Q I ask that you look into the camera whenever
22 possible.
23 A Was your tongue in your cheek when you said that?
24 Q No.
25 When raw data was received from the White House, was
111
1 it returned to the FBI after it was used?
2 A No, sir. As I previously testified, it was placed
3 in the individual's file with the background.
4 Q And those files were kept by archives?
5 A Well they became Presidential records and ultimately
6 went to archives, yes.
7 Q Were you ever refused a request for raw data by the
8 FBI?
9 A Not that I recall.
10 Q You or anyone else?
11 A I only know about myself, as I previously testified;
12 and I don't recall being refused raw data.
13 Q Did Ms. Gemmell or Dannenhauer ever tell you that
14 you could simply call the FBI to order up raw data?
15 A That's exactly what they told me.
16 Q And they told you that you had to keep a record of
17 what raw data you were requesting?
18 A As I previously testified, there was no such record.
19 And, no, I did not receive such instructions.
20 Q Based upon your experience as an attorney, did it
21 strike you as strange that no record would be kept of the
22 request of raw data?
23 A No, sir.
24 Q Why is that?
25 A Because it was not an established procedure. It was
112
1 background summary specific.
2 Q Why would it make any difference if it wasn't
3 established procedure?
4 A It wasn't routine.
5 Q So if it's not routine, that means that you don't
6 have to keep a record of it?
7 A Mr. Klayman, I didn't say that. I simply said that
8 this was the exception, not the rule.
9 And there was, you know -- I've let you go on and
10 say there was no record kept. This information was placed in
11 the file. It was not destroyed. There was a record of it.
12 Q If I was to go back and serve a Document Request on
13 the White House, assuming I don't have one that already covers
14 these kinds of documents, and asked for records of what raw
15 data you and your colleagues requested in the White House
16 Counsel's Office when you worked there, would I find anything
17 in writing?
18 A You would find the information requested and
19 obtained, yes. And it would be in writing.
20 Q Where would you find it?
21 A In the relevant files.
22 Q Tell me which files you requested raw data about?
23 MR. GILLIGAN: I would instruct the witness not to
24 divulge the names of any individual on whom he requested or
25 about whom he requested raw data. That's subject to the
113
1 attorney/client privilege, Presidential communications
2 privilege, and deliberative process privilege.
3 Q Are you willing to provide this information to the
4 Court in camera?
5 MR. GILLIGAN: If the Court asks us to see something
6 in camera, then we will abide by the Court's --
7 MR. KLAYMAN: I assume that you will abide by any
8 Court order.
9 MR. GILLIGAN: Thank you, Mr. Klayman.
10 MR. KLAYMAN: Although that's a large assumption.
11 MR. GILLIGAN: That's not the --
12 MR. KLAYMAN: That's a very large assumption.
13 MR. GILLIGAN: That's not the position you've taken
14 in connection with your Protective Order Motions. But --
15 MR. KLAYMAN: Well at this point, given the history
16 of this case, I would assume you'd to abide by future Court
17 orders.
18 MR. GILLIGAN: I abide by all Court orders.
19 MR. KLAYMAN: Can we make it simple for the Court?
20 Will you provide this information to the Court?
21 MR. GILLIGAN: No, Mr. Klayman. Make it simple for
22 the Court. The Court has a stack to the ceiling of pleadings
23 in this case. It doesn't need more information that it
24 doesn't ask for. Whatever the Court asks for, we will see if
25 can --
114
1 MR. KLAYMAN: I don't want to use up valuable time
2 right now. But obviously, I think you understand the
3 significance of receiving raw data on individuals by the White
4 House, which does not -- apparently was not subject to any
5 kind of record keeping system, according to Mr. Kennedy.
6 MR. GILLIGAN: His testimony speaks for itself,
7 Mr. Klayman. And why don't we just move on instead of us
8 arguing about the matter in which you've mischaracterized the
9 record.
10 BY MR. KLAYMAN:
11 Q Mr. Kennedy, you don't have to tell me the names
12 right now, given your counsel's instruction not to answer, but
13 can you remember as we sit here today the names of any
14 individuals --
15 MR. GILLIGAN: I'll instruct the witness --
16 Q -- whose raw data you requested? I'm not asking for
17 the names. Just can you remember anybody's names in your
18 head?
19 A Mr. Klayman, if I set my mind to it, I might. I
20 might could come up with some names. I'd have to think hard
21 about it. I dealt with thousands of these things.
22 Q Did you ever inform the subject of the request that
23 you or anyone in the White House Counsel's Office or Office of
24 Personnel Security was requesting their raw data from the FBI?
25 A No.
115
1 MR. GILLIGAN: Objection. The question is compound
2 and mischaracterizes the record.
3 Q You can respond.
4 A Unfortunately, I've lost the question. Would you
5 reask it or ask --
6 Q Were any of the individuals whose raw data you
7 requested advised that their raw data was requested?
8 A No. We were not required to do so, and we did not.
9 Q And where in writing does it say you are not
10 required to do so?
11 A That was understood part of the process.
12 In addition, if I recall correctly, they in essence
13 signed a waiver when they started the clearance process that
14 said we would have access to this material, materials related
15 to their background.
16 Q When the raw data and the background summaries were
17 received, was it always received through the Office of
18 Personnel Security before it came to you?
19 A I can't say always. I think most of the time raw
20 data came directly to me. But I can't say every time without
21 fail, I simply cannot.
22 Q And when the raw data arrived was it in a file?
23 A No, sir. It would be in written form in a sealed
24 envelope.
25 Q And what did the envelope say on the outside?
116
1 A It would say usually William Kennedy, OEOB.
2 Q And when the summaries came was it in an envelope as
3 well?
4 A Yes.
5 Q And what did it say on the outside of those
6 envelopes?
7 A I believe the same thing.
8 Mr. Klayman, I want to, I want to -- I've been
9 thinking about this. I want to clarify my testimony in one
10 small respect.
11 I have testified that most of the requests for raw
12 data were oral, and I stand by that testimony. But I don't
13 want to give the impression that was always the case.
14 If there was a reason such as another communication
15 to the FBI, I might stick a memorandum in from time to time
16 requesting such information directed to Mr. Bourke or
17 Mr. Johnson. So I don't want to say that there was never any
18 written request therefore. I just want to say that most of
19 the time, if not all the time, it was oral.
20 Q Were there any written instructions ever issued that
21 no one could copy the FBI background summaries?
22 A I believe so. But that's also a question where
23 there may not have been, because it was so thoroughly
24 understood.
25 Q Do you know specifically of anything in writing that
117
1 says you cannot copy FBI background summaries?
2 A No, sir; I do not.
3 Q And how was it so thoroughly understood?
4 A The FBI background summaries were treated with
5 tremendous respect, the substance of this lawsuit
6 notwithstanding.
7 And there dissemination was controlled and
8 monitored. And this was completely understood between
9 Craig Livingstone and myself and his office.
10 Q And where in writing was it "understood," as you
11 used the term, that it was carefully controlled and monitored?
12 A As I stated, Mr. Klayman, I think this is in writing
13 somewhere. It may not be. It may be that this was part of
14 the briefing that we got from a variety of sources at the time
15 we were learning how to do what we did.
16 Q And who gave those briefings?
17 A I need to refer back to my previous testimony. The
18 FBI, CIA, former administration employees.
19 Q Who at the FBI and the CIA?
20 A Mr. Bourke and Mr. Johnson.
21 Q Who at the CIA?
22 A I'm sorry, I cannot recall who came over and talked
23 to us.
24 Q Did anyone talk to you from the IRS?
25 A I went and met with my counterpart at the IRS.
118
1 Q Who was that?
2 A I'm sorry, Mr. Klayman. I can't recall his name. A
3 very nice gentleman.
4 Q Do you know what office he worked in?
5 A He worked in the office that does this, and I'm
6 sorry I don't know the title of that office. It should be
7 easily ascertainable.
8 I went over to introduce myself, as I did with the
9 FBI, to meet with him so that he knew there was a human being
10 on the other end, and be sure that we worked smoothly.
11 Q And who was briefed by these various individuals
12 besides yourself?
13 A Well I can't speak to briefings that Mr. Nussbaum or
14 Mr. Foster may have had outside my presence. But generally it
15 would be Craig or myself.
16 I do believe that Mr. Foster and Mr. Nussbaum
17 attended the briefing from the CIA. And I think that members
18 of the White House Office of Personnel Security certainly got
19 information from Ms. Dannenhauer and Ms. Gemmell.
20 Q Now you don't know for a fact, do you, that any FBI
21 background summary or raw data was never copied at the White
22 House when you were there?
23 A I can say to the contrary. I copied background
24 summaries from time to time.
25 Q Who copied them for you?
119
1 A I did it myself.
2 Q What photocopier did you use?
3 A The copier in our office suite.
4 Q And why did you copy these background summaries and
5 raw data reports?
6 A If I had --
7 MR. GILLIGAN: Objection. The question
8 mischaracterizes the record.
9 You may respond.
10 A Would somebody repeat the question?
11 Q Why did you copy the FBI materials that were sent
12 over, including the FBI summaries?
13 A Well 99 percent of the time I would be copying only
14 the summary itself. And I would do so generally only if I had
15 to brief Vince or Bernie or Joel Klein on issue of a
16 background, or if I took a background up to the Hill with
17 regard to an appointee.
18 Q So you would make copies of these FBI background
19 summaries, and provide them to Bernie or Joel Klein or
20 Vince Foster or whoever?
21 A That's correct.
22 Q And the original summaries would go into the
23 person's file?
24 A No. All those summaries -- all of the copies would
25 be returned to that person's file.
120
1 Q How do you know that occurred?
2 A Because I did it.
3 Q How did you do it?
4 A I copied them. We did this so that we could discuss
5 whatever issues they might be. And then I would get both of
6 them back and put them in the file.
7 Q Sometimes you would leave these materials with
8 Mr. Nussbaum or Mr. Foster or others to review, correct?
9 MR. GILLIGAN: Objection. Mischaracterizes the
10 record.
11 A Never.
12 Q What did you do?
13 A I just testified to that, Mr. Klayman. I would
14 gather them and put them back in the file.
15 Q Well what I'm saying is: You made a copy so you
16 could provide the copy to Mr. Nussbaum, Mr. Foster, and
17 Mr. Klein to review; correct?
18 A That's correct.
19 Q And you would keep the original, correct?
20 A And the copy, Mr. Klayman.
21 Q Well the point is, is that why did you have to make
22 copies if you could just simply show them the original?
23 A I could've done that, and did do that from time to
24 time. But it's awkward to do so if you're trying to discuss
25 the document.
121
1 Q Why is it awkward to do so?
2 A Because then we'd have to hand it back and forth to
3 refer to it.
4 Q Are you saying that you never made a copy of FBI
5 background summaries and left them with either Mr. Nussbaum or
6 Mr. Foster or Mr. Klein or anyone else?
7 A That is correct.
8 Q And are you saying that you only showed those copies
9 when you were in the presence of these individuals?
10 A That is correct.
11 Q Did you ever provide copies of FBI summaries or
12 other FBI materials to Craig Livingstone?
13 MR. GILLIGAN: Object to the vagueness.
14 A Well there's a complicated answer to that. I mean,
15 FBI backgrounds with regard to current White House employees
16 were with Craig Livingstone.
17 Q My question was: Did you ever copy off an FBI
18 summary report or raw data and then give a copy to
19 Mr. Livingstone, under any circumstances?
20 A Well if I was dealing with the background and
21 related raw data that related to a White House employee, it
22 would go in that employee's file, which would be in the office
23 of White House Personnel Security or in Presidential Archives.
24 And therefore Craig Livingstone would have it. That's his
25 office.
122
1 Q How did it find its way into that government
2 employee's file -- into that person's file?
3 A In the -- I don't know how to answer this other than
4 by saying in the normal way, in the normal process, normal
5 procedures.
6 Q And what is the normal process?
7 A I've just described them.
8 Q No, you didn't.
9 A Yes, I did.
10 Q I don't know how the document got from the copy
11 machine to being reviewed by somebody into the person's file.
12 MR. GILLIGAN: Objection --
13 Q How did it get into the person's file? Who put it
14 there and where were those files kept?
15 MR. GILLIGAN: Objection. Asked and answered.
16 Compound question.
17 You may respond.
18 A Unfortunately, we've to repeat the question because
19 there were two or three.
20 Q Let's take it in part.
21 A That's fine.
22 Q How did the documents which were copied from the FBI
23 physically get into the subject person's file?
24 A They were placed in that file.
25 Q And who placed them in that file?
123
1 A I did.
2 Q And where were the files kept?
3 A With regard to Presidential appointees, they were
4 kept either in the Office of Counsel to the President or in
5 the Presidential Archives. With regard to White House
6 employees they were kept in the Office of Personnel Security.
7 Q Sometimes subject person's files were kept in your
8 office, correct, for a period of time?
9 A That's correct.
10 Q And sometimes there would be more than one subject
11 person's file in your office, correct?
12 A That is correct.
13 Q And sometimes there would be a pile of subject
14 person's files in your office, correct?
15 A That is correct.
16 Q And how did those files get to your office?
17 A They were brought to and maintained in my office as
18 part of the clearance process.
19 Q And who brought them up to your office?
20 A Which files are we talking about, Mr. Klayman?
21 Q Any files dealing with the clearance process.
22 A Mr. Klayman, we maintained files in my office with
23 regard to the clearance process. That's what I did.
24 Q Did Mr. Livingstone ever bring you those files?
25 A Certainly.
124
1 Q Did Mr. Marceca ever bring you those files?
2 A Certainly.
3 Q Did Ms. Mary Anderson ever bring you those files?
4 A I believe so, yes.
5 Now, Mr. Klayman, which files are we talking about,
6 as a point of clarification?
7 Q Files of anyone who was subject to the clearance
8 process.
9 A The answer to that question would be yes.
10 Q And were those files kept and maintained in the
11 Office of Personnel Security?
12 A Mr. Klayman, with regard to White House employees,
13 i.e., people within the complex, the answer is yes, or in the
14 Presidential records through the archives process.
15 With regard to clearance procedures they were in the
16 Office of Counsel to the President or in Presidential
17 Archives.
18 Q The files that were brought to you, was there a
19 method to sign them out and sign them in when you received
20 them?
21 A Well when you, when you talk about files --
22 Q The ones we're just talking --
23 A -- are you talking about, let's, for example, files
24 of White House employees, i.e., people in the complex? Is
25 that what you're talking about?
125
1 Q I'm talking about any files dealing with anyone
2 whether they're in the White House complex, whether they were
3 subject to possible Presidential appointment, or otherwise.
4 MR. GILLIGAN: Object to the compound nature and the
5 vagueness of the question.
6 Q You can respond.
7 A Mr. Klayman, unfortunately it is inordinately
8 difficult to talk about this stuff unless you delineate
9 between the two sources of files, because they were handled
10 differently.
11 Q Let's talk about appointments, possible Presidential
12 appointments. Where did those file emanate from?
13 A They emanated from the Office of Counsel to the
14 President.
15 Q And who would bring those files over to you from the
16 counsel?
17 A They were created by our office. That's what we
18 did.
19 Q And where were they stored?
20 A They were stored either in our office or they were
21 stored in the Presidential records in the archives.
22 Q Now being stored in our office.
23 A Correct.
24 Q What do you mean by "our office"? Mr. Nussbaum's
25 office?
126
1 A No. The office of Counsel to the President, either
2 in my office or other associate counsel's offices.
3 Q Was there a special file cabinet in your office that
4 you kept those files in?
5 A Yes.
6 Q And what type of file cabinet was it kept in?
7 A I hate to say it, but your standard government issue
8 file cabinet.
9 Q Was there a support person that was in charge of
10 maintaining those files in your office?
11 A Well there's a complicated answer to that
12 unfortunately, which is: The files were in use for a variety
13 of purposes, i.e., there were different aspects of the
14 clearance process, so there were a lot of people that had
15 access to the file.
16 Q Who were the people that had access to the files?
17 A It changed from time to time. People that put
18 things in the file, people that had to take things out of the
19 file to do what they were doing in the clearance process.
20 Q And who are those people? Name them all.
21 A Unfortunately, I cannot, Mr. Klayman. They changed
22 over time. It would've been the associate White House
23 counsels and the support staff.
24 Q Anyone in particular in the support staff?
25 A As I said, it changed over time. Edgar Bueno, the
127
1 associate counsels, Cliff -- I'm sorry, I can't think of his
2 last name. The people that were engaged and employed in the
3 process.
4 Q Linda Tripp, she sometimes had access to those
5 files?
6 A Linda Tripp, as far as I know, had no access to
7 those files.
8 Q Ms. Pond?
9 A Had no access to those files, as far as I know.
10 Q Ms. Gorham?
11 A Had no access to those files, as far as I know.
12 Q So it was just you and Mr. Bueno?
13 A No, I didn't say that, Mr. Klayman. I said that the
14 people who had to have access to the files to do what they did
15 in the clearance process had access to those files.
16 Q So any associate White House counsel or support
17 staff could obtain use of those files out of your office?
18 MR. GILLIGAN: Objection. Mischaracterizes the
19 record.
20 You may respond.
21 Q In other words, people could come in and get the
22 file and use it, as long as you're an associate White House
23 counsel?
24 A No, Mr. Klayman.
25 MR. GILLIGAN: Same objection.
128
1 A Mr. Klayman, the files were locked up after hours.
2 And if you had a reason to get the information in those files
3 and you were a member of the Counsel's Office, you could get
4 access to them. Otherwise, you could not.
5 Q How did you go about getting access to them?
6 A I myself would simply go to the file and open it.
7 Q Because during the day it was unlocked, correct?
8 A They were unlocked during the day, yes.
9 Q And during the day those files were kept in your
10 office your door was open, correct, generally speaking?
11 A No, Mr. Klayman. Lots of times my door was closed.
12 Q But your door was rarely locked during the day,
13 correct?
14 A That would be accurate, yes, sir.
15 Q It wasn't your practice to lock the door when you
16 were out of your office, was it?
17 A Mr. Klayman, there is a point of clarification
18 simply to put your mind at ease. I think --
19 Q No, I want an answer to the question. I don't need
20 a clarification.
21 MR. GILLIGAN: I want the witness to be allowed to
22 finished his testimony.
23 A One thing that you should understand is is that the
24 FBI background summaries were locked up in a safe, actually
25 several safes in my office, and no one had access to those.
129
1 Q And the raw data?
2 A Locked up in the safe.
3 Q You say there were several safes in your office?
4 A Yes, sir.
5 Q Can you -- I'm going to ask that we make Exhibit 17.
6 Why don't you draw me a configuration of your office, and tell
7 me where your desk is, where the file cabinet was, where the
8 safes were, and where anything else was dealing with the
9 maintenance and storage of materials that you obtained about
10 the person subject to clearance and others?
11 A {The witness complies.}
12 THE VIDEOGRAPHER: Do you want to stay on the
13 record?
14 MR. GILLIGAN: No, we're on the record.
15 Madame Court Reporter, I will save you the trouble,
16 here is how you spell Dannenhauer and Gemmell {indicating}.
17 THE WITNESS: We're on? off? what's the deal?
18 MR. GILLIGAN: We're on.
19 MR. KLAYMAN: Why don't we make some photocopies?
20 MR. GILLIGAN: Okay.
21 MR. FITTON: We'll mark it first.
22 {The document referred to was marked for
23 identification as Deposition Exhibit No. 17,
24 and is attached.}
25 {Reporter's Note: A brief pause for photocopies.}
130
1 BY MR. KLAYMAN:
2 Q Mr. Kennedy, I take it that Exhibit 17 is your
3 rendition of what was in your office when you occupied it?
4 A Yes, sir, with the caveat that, you know, I acquired
5 furniture over time. But this was generally what it looked
6 like most of the time.
7 Q I'm going to show you Exhibit 16. Can you just kind
8 of put a star in the office that was yours?
9 A {The witness complies.} Not to scale.
10 Q That star is your office. What was the room number
11 of your office?
12 A Mr. Klayman, don't hold me to this, I think it was
13 room 136, was the office suite number.
14 Q Okay. Now let's look back to Exhibit 17. We see a
15 number of artist renditions. We see a desk. Were there
16 drawers in that desk?
17 A There were.
18 Q How many drawers were in that desk?
19 A I'm sorry, Mr. Klayman. I can't recall.
20 Q Was this your standard government neocolonial desk?
21 A For part of the time it was. Another part of the
22 time, toward the last half of it, it was a desk that I had
23 brought from Arkansas, but didn't have any room to store it,
24 so I used it.
25 Q What did you keep stored in the drawers of that
131
1 desk?
2 A Stuff that I needed to do my job. You know, office
3 supplies mostly, file folders, rubber bands, pens, things of
4 that nature.
5 Q Sometimes you kept information concerning the
6 clearance process in those drawers, didn't you?
7 A No, sir.
8 Q Did you put FBI materials in those drawers?
9 A No, sir.
10 Q Sometimes you would have FBI and other clearance
11 materials on your desk, though, to review them; right?
12 A Obviously.
13 Q And sometimes you would leave it on the desk
14 overnight when you left, correct?
15 A No, Mr. Klayman. They were locked up in the safe
16 when I left.
17 Q Was there a door to your office?
18 A Two doors to my office -- three doors actually.
19 Q Where are the doors? I don't see them.
20 A Well those little slash marks indicate doors.
21 And then there's a door which I didn't indicate a
22 slash mark to because of -- it was these files that are
23 indicated as being next to a table behind my desk, there was
24 actually a door there.
25 Q Who had a key to these doors?
132
1 A I assume the Secret Service did. Other than that,
2 as far as I know, no one but myself, whoever occupied the
3 office.
4 Let me expand on that. Probably the maintenance
5 people did, but I don't know that. You'd have to ask.
6 Q Were there any instructions to the maintenance
7 people --
8 MR. KLAYMAN: Strike that.
9 Q Did the maintenance people come into your office
10 after you left each day?
11 A I don't believe so, but I honestly don't know. I
12 don't know.
13 Q Were there ever any instructions given in writing
14 that the maintenance people should lock those doors if they
15 came in?
16 A You're taking me, Mr. Klayman, into an area I don't
17 know. I don't know what their instructions are.
18 Q I take it you did come into the office on occasion
19 and find some of these doors unlocked in the morning?
20 A No, sir.
21 Q Now I see your desk, and then I see a thing below it
22 called table. What was the size of that table?
23 A Just a regular table. Five (5) feet maybe.
24 Q And what was the table used for?
25 A To work on. My computer sat on that table, and I
133
1 would work on it.
2 Q Sometimes you'd have files on that table, did you
3 not?
4 A If I was working on that table, yes.
5 Q And sometimes you'd have files of people subject to
6 the clearance process on that table, correct?
7 A That is correct.
8 Q Sometimes you'd have stacks of files on that table,
9 correct?
10 A If I was doing a lot of work that would be correct.
11 Q And sometimes you'd have stacks of files on that
12 table several feet high, correct?
13 A That would be extremely rare. You'd have to define
14 what you mean by "several feet," but --
15 Q More than 2.
16 A No.
17 Q More than 1.
18 A It's possible.
19 Q Sometimes you had files of Republicans on that
20 table, correct?
21 A Only if they were properly in the clearance process,
22 Mr. Klayman.
23 MR. GILLIGAN: Madame Court Reporter, did you get
24 that answer? I know he was drinking.
25 {The reporter nods her head affirmatively.}
134
1 MR. KLAYMAN: I heard him choking, actually.
2 BY MR. KLAYMAN:
3 Q Was there anything kept under that table?
4 A Just my feet.
5 MR. GILLIGAN: He has my sense of humor,
6 Mr. Klayman.
7 MR. KLAYMAN: My condolences.
8 MR. GILLIGAN: I was about to say, at the risk of
9 insulting the witness, I would say he probably has a much
10 better sense of humor.
11 MR. KLAYMAN: Actually you have had a good joke
12 every now and then, but I wouldn't want to put it on the
13 record.
14 MR. GILLIGAN: Heaven forbid.
15 MR. KLAYMAN: Might cost you your job.
16 BY MR. KLAYMAN:
17 Q Now next to the table was there a chair or anything
18 like that?
19 A There was a chair that I sat in, yeah, which I did
20 not put on this diagram. I apologize.
21 Q Did you ever keep things on that chair, like files?
22 A If I did it would be only for a brief period of
23 time, pick them up and put them somewhere else. I mean, I sat
24 in that chair.
25 Q What are these things to the right of the table?
135
1 Does that say "safe"?
2 A To the right of the table?
3 Q Yeah. I see four things to the right and below.
4 A Yes.
5 Q What are those?
6 A Those are safes.
7 Q They're safes?
8 A Uh-huh.
9 Q And why were there four safes?
10 A That was where the FBI materials were kept with
11 regard to Presidential appointees.
12 Q Were those safes put into your office after you
13 occupied it?
14 A No, they were there when I occupied it. Well, yeah,
15 I'm pretty certain they were there when I came.
16 Q Who had the keys to those safes, or were they
17 combination safes?
18 A They were combination safes.
19 Q Who kept the combinations?
20 A I did.
21 Q Did anyone else have the combinations?
22 A I don't know that for a fact, Mr. Klayman. I would
23 assume the way the Government works that they were somewhere,
24 but I don't know where.
25 Q Did you memorize those combinations, or did you have
136
1 a little thing in your wallet or some place where you could
2 refer to how to get into them?
3 A Well I was given those combinations in writing. I
4 memorized them, and I kept that writing inside the safe.
5 Q If you kept the writing inside the safe and you
6 forgot the combination, how would you get in?
7 A You'd be in trouble.
8 Q Who thought of that as a technique?
9 A I did.
10 MR. GILLIGAN: It's the opposite of putting your PIN
11 number on the back of your ATM card.
12 Q Did any of the support people or associate counsels
13 have access to these safes?
14 A No, sir. Just myself. And, of course, I would've
15 made the stuff available to Vince or Bernie or to Joel Klein,
16 if needed.
17 Q What else did you keep in the safes besides FBI
18 materials?
19 A Just that.
20 Q Did you keep any other -- did you keep any valuables
21 in there?
22 A I did not.
23 Q Keep any money in there?
24 A I did not.
25 Q Did anyone, while you worked in the White House
137
1 counsel, ever see you opening those safes and putting things
2 inside them?
3 A Yes.
4 Q Who?
5 A Various members of the White House Counsel's Office.
6 Q And who would they be?
7 A The people that were employed in the clearance
8 process, if they happened to be in the office.
9 Q I need names.
10 A I've given them to you already. The people that
11 were employed in the White House Counsel's Office.
12 Q Now going to the left of the table, I see something
13 that says "files." What is that?
14 A There was a group of -- there was one file cabinet,
15 and I think it had either three or four drawers in it, that
16 was there.
17 Q And what was kept in those drawers?
18 A Two things: There were materials that I had
19 gathered relating to the clearance and security process,
20 memoranda, things of that nature; and then if I had anything
21 personal in the office it was kept there, in that file
22 cabinet.
23 Q What kind of memoranda are you talking about?
24 A Whatever materials that I had that I had copied with
25 regard to learning how to do what I did.
138
1 Q These files weren't locked, were they?
2 A No, they were not.
3 Q And then there was a table behind your desk,
4 correct?
5 A Right.
6 Q And what was kept on that table in your ordinary
7 course?
8 A Work product.
9 We've actually gone over this. I'll go over it
10 again. I mean, that's where I worked, and my computer was on
11 that desk.
12 Q Well I see, let me just show you, I see your desk
13 and I see a table below the desk. This is the one you --
14 A I thought you were talking about this table
15 {indicating}.
16 Q Okay. So your prior testimony refers to the table
17 right behind your desk?
18 A Yeah.
19 Q So what was kept to the table below your desk on
20 Exhibit 17?
21 A I used that as a conference table if I met with
22 people in the office. If I had to, I would use it as a work
23 table as well.
24 Q So you would also keep files of individuals subject
25 to the clearance procedure on that table as well from time to
139
1 time?
2 A If I happened to be working on that table there,
3 yes. But it was primarily used as a conference table.
4 Q At any given point in time could you have more than
5 20 files in your office of people subject to clearance
6 procedures?
7 A Inside the safes there were more files than that,
8 yes.
9 Q At any given point in time could you have more than
10 50 files in your office?
11 A That would be extremely rare.
12 And to respond to your earlier question, other than
13 what was in the safes, it would be rare for me to have more
14 than five or 10 files.
15 Q But the most you would have at any given point in
16 time would be somewhere around 20?
17 A Mr. Klayman, it's impossible to sort of answer that
18 question, because the number would ebb and flow depending on
19 what I was doing.
20 I mean, it was not my practice to keep large amounts
21 of files from the clearance process in my office. I tried to
22 move them in and out in an orderly fashion as they were needed
23 to either be there or not be there.
24 But it was a voluminous job. I dealt with many,
25 many people in the clearance process. And there were times,
140
1 I'm sure, there were 20 files in my office.
2 Q And there were times when there were 50?
3 A No, sir. That would be unusual.
4 Q What's the most you think were ever in your office?
5 A Maybe 20.
6 Q You're not a terribly neat person, are you?
7 A No, sir. I think people would say I'm not a
8 terribly neat person.
9 Q That's what I just said.
10 A I just agreed with you.
11 Q In fact, you don't keep little neat piles on your
12 desk or anything like that? You're your typical sloppy
13 lawyer, right?
14 A I am not a neatness freak.
15 Q In fact, you're not terribly neat at all; right?
16 A Some people think so.
17 Q Who is that?
18 A My friends.
19 Q I take it, from time to time there were materials
20 from these files that we've discussed that were taken out of
21 the files and left on a desk or on the table here?
22 A That would be infrequent. We tried, to the extent
23 we were able, to keep the files intact.
24 Q Now Linda Tripp, she was in your office --
25 A Rarely.
141
1 Q -- from time to time, was she not?
2 A Rarely.
3 Q But she was in your office?
4 A She was in my office on a couple of occasions.
5 Q When you say "a couple," you mean two, three?
6 A I would say the number -- I can't remember
7 specifically how many, but probably no more than two or three.
8 Q And what was the occasion when she was in your
9 office, why was she there?
10 A She wanted to talk to me about things.
11 Q And did she ask to talk to you, or did you ask to
12 talk to her?
13 A She asked to talk to me.
14 Q And when did she first ask to talk to you?
15 A I'm sorry, Mr. Klayman, I can't remember.
16 Q Roughly speaking.
17 A Well I don't know precisely when she came to work in
18 the Counsel's Office, so I simply -- probably would've been
19 the latter part of 1993 sometime.
20 Q And she approached you, and said, `I need to talk to
21 you about something'?
22 A Yes.
23 Q And where was she when she approached you? Did she
24 walk into your office?
25 A No. She called from the West Wing.
142
1 Q And what did she tell you she wanted to talk about?
2 A Personnel matters.
3 Q What personnel matters?
4 A She wanted to talk about some of her coworkers.
5 Q And what coworkers did she want to talk about?
6 A Ms. Pond and Deborah Gorham.
7 Q And what did she tell you she wanted to talk to you
8 about concerning them?
9 A Job performance.
10 Q Did she get specific when she was on the phone?
11 A No, sir; not when she was on the phone.
12 Q Did she say she wanted to talk to you about anything
13 else?
14 A No. That's the -- I described the general subject
15 matter in which she wanted to talk about.
16 Q Did you tell her to, `Come over, and we'll talk
17 about it'?
18 A I can't remember exactly what I did, Mr. Klayman. I
19 may have said, `I'm busy right now, come over,' you know,
20 `Come later,' or if I wasn't busy. I simply can't remember
21 those details.
22 Q Was it soon thereafter that she came over and you
23 talked to her?
24 A As I said, I can't remember. It would've been
25 relatively contemporaneously when she made the request.
143
1 Q Did she make the request in writing, or was it done
2 orally?
3 A She just called from the West Wing, as I previously
4 testified.
5 Q And did there come a point in time when you met with
6 her?
7 A Yes.
8 Q And that was in your office?
9 A Yes.
10 Q Where were you at the time that you met with her? I
11 mean, were you sitting behind your desk?
12 A Mr. Klayman, I'm sorry, I can't recall. I probably
13 was behind my desk.
14 Q Where was she sitting?
15 A Probably in one of those chairs.
16 Mr. Klayman, it's also possible that we moved over
17 to sit on the couch. I simply can't recall.
18 Q And who started the conversation, you or her?
19 A Well she called to see me. I assume she did.
20 Q And what did she say? Tell me everything she said.
21 MR. GILLIGAN: If you want to know what she said
22 about job performance of other employees of Counsel's Office,
23 can you possibly explain to me what the relevance of that is,
24 Mr. Klayman?
25 MR. KLAYMAN: Can I just get the testimony, please?
144
1 MR. GILLIGAN: No.
2 MR. KLAYMAN: All right. Well can you please --
3 MR. GILLIGAN: Because we may --
4 MR. KLAYMAN: Will you please leave the room?
5 MR. GILLIGAN: That's fine, sir.
6 {Reporter's Note: The witness exits.}
7 MR. KLAYMAN: I ask that you, if you would, please,
8 Mr. Kennedy, go into another room, because you can hear
9 through the walls.
10 THE WITNESS: Will do.
11 MR. GILLIGAN: I will refrain from asking how you
12 know that, Mr. Klayman.
13 MR. KLAYMAN: Just an assumption. It's wood.
14 American construction.
15 There's a lot of different areas of relevancy here.
16 And I don't want to tip my hand in too many of them. But, as
17 we know, for instance, Ms. Tripp's file was obtained after she
18 began working for Mr. Nussbaum, FBI file.
19 And the reasons for obtaining that file may relate
20 to things that she said concerning other employees, did she
21 become a problem, did people suspect she'd be a problem.
22 That's one example.
23 MR. GILLIGAN: Her file was obtained because she
24 continued to work in the White House, Mr. Klayman.
25 MR. KLAYMAN: Well I know you have undying faith in
145
1 the honesty of the Clinton Administration, and you probably
2 still think the President's told the truth in everything too.
3 MR. GILLIGAN: Let's stick to the subject,
4 Mr. Klayman.
5 MR. KLAYMAN: But, see, these things may actually
6 have a bearing. I'm entitled to take discovery.
7 MR. GILLIGAN: If that's the only thing you're going
8 to give me, I don't see how dragging what one employee has to
9 say about another employee's job performance has any business
10 on the public record of this deposition. These people have
11 privacy interests too that need to be respected.
12 MR. KLAYMAN: There are issues involving her
13 transfer. There are issues involving matters which may not be
14 evident until we get the testimony.
15 I'd be willing to, at least for the time being, put
16 this on a confidential record to see what we elicit.
17 MR. GILLIGAN: You know, Mr. Klayman, the problem is
18 that we're dealing with the privacy interests of third parties
19 who are not here to look after their own interests.
20 The relevance is still completely unclear to me.
21 Is there any way we can keep this -- and I'm just
22 trying, I'm just throwing out an idea here that may or may not
23 work -- is there any way we can keep this to some level of
24 generality that will allow you to get what you want without --
25 you know, this is supposedly a lawsuit about vindicating the
146
1 privacy interests of people who at one time worked in the
2 White House. And in that spirit, let's see what we can do
3 here to protect that.
4 MR. KLAYMAN: First of all, you know, he is not the
5 director of personnel. There's no showing that Ms. Tripp had
6 access to these people's Privacy Act information. She's
7 simply relaying, perhaps -- and we don't know what he's going
8 to say -- her observations about these people. And that's not
9 covered by the Privacy Act.
10 MR. GILLIGAN: It has nothing to do with Privacy
11 Act, Mr. Klayman, it has to do with --
12 MR. KLAYMAN: Or any private interests.
13 MR. GILLIGAN: Of course it has to do with their
14 private interests if people are walking about speaking about
15 other people's job performance.
16 MR. KLAYMAN: Not unless it was made a formal part
17 of any kind of record. Why don't I start backwards, and I'll
18 ask that question.
19 I'll try to be general. Let's see what we get.
20 I'll also agree that for the time being it will be
21 kept on a confidential record, subject to our moving to have
22 it taken off the confidential record.
23 MR. GILLIGAN: Do you need to know anything -- I
24 have no idea, but I assume that what you are looking to obtain
25 from the witness is a statement that Ms. Tripp spoke ill of
147
1 some of her colleagues. Is that what you're looking --
2 MR. KLAYMAN: No, I don't know what I'm going to
3 get.
4 I know the two were in contact. Obviously, I think
5 you can figure out the significance of that.
6 MR. GILLIGAN: I'm not able to leap as far to
7 conclusions as you are, Mr. Klayman.
8 I'm not -- I'm ask -- you know, obviously, I can't
9 imagine what -- I assume what you want to get -- I don't know
10 what the witness is going to say -- I assume what you want to
11 get at is that she spoke ill of her colleagues in Counsel's
12 Office.
13 MR. KLAYMAN: I don't know. We didn't get to the
14 full nature of the conversation. And I object to using up all
15 my time on this banter.
16 MR. GILLIGAN: Well, you know, it's not banter. I'm
17 just trying to see if we can get pass --
18 MR. KLAYMAN: I'm entitled to get this information
19 and --
20 MR. GILLIGAN: No, you're not --
21 MR. KLAYMAN: -- {inaudible} agreed --
22 MR. GILLIGAN: No, I --
23 MR. KLAYMAN: -- to put it on confidential --
24 MR. GILLIGAN: -- don't believe you are, sir.
25 That's why we're having this discussion.
148
1 {Reporter's Note: Mr. Gilligan confers outside the
2 hearing of the reporter.}
3 MR. GILLIGAN: Well that's what I'm trying to ask.
4 Are you willing to leave it at she had unfavorable
5 things to say about person-X, person-Y, and leave it at
6 that --
7 MR. KLAYMAN: No. We need to know why, because the
8 unfavorable things may actually be relevant.
9 MR. GILLIGAN: Relevant to their job performance?
10 MR. KLAYMAN: To this case.
11 MR. GILLIGAN: To their job performance. Do you
12 need --
13 MR. KLAYMAN: If the unfavorable things dealt with
14 how they were dealing with FBI materials or Government files,
15 then it's obviously relevant.
16 MR. GILLIGAN: All right. If you want to ask that,
17 more power to you.
18 MR. KLAYMAN: Can we bring him back?
19 MR. GILLIGAN: Sure.
20 {Reporter's Note: The witness returns.}
21 MR. KLAYMAN: I would like to be able to ask these
22 questions without interference that will tip the witness off.
23 MR. GILLIGAN: Mr. Klayman --
24 MR. KLAYMAN: I know that's funny to you, but it's
25 not funny to me.
149
1 MR. GILLIGAN: Well it's funny to me --
2 MR. KLAYMAN: Or to the Court.
3 MR. GILLIGAN: -- because after a while, you know,
4 all I can do is laugh when I sit in these depositions and I am
5 constantly insulted without basis.
6 But let me just say in response to that,
7 Mr. Klayman, that if you ask questions that are not
8 objectionable, I won't object.
9 BY MR. KLAYMAN:
10 Q Mr. Kennedy, in your discussions with Ms. Tripp over
11 these employees, Ms. Pond and Ms. Gorham, did she express her
12 dislike of these people?
13 A Yes.
14 Q And was the dislike based upon their job
15 performance?
16 A Yes.
17 Q And was that job performance related to matters
18 which Ms. Tripp claimed were improper actions on their part?
19 A Yes.
20 Q Ms. Tripp maintained that they were doing things
21 which were not legal?
22 A No.
23 THE WITNESS: I'd like to request conference with
24 Counsel, please.
25 MR. KLAYMAN: Off the record. No time to use on our
150
1 part.
2 THE VIDEOGRAPHER: We're going off the record. The
3 time is 1:46.
4 {Reporter's Note: At 1:46 p.m., the reporter was
5 asked to go off the record; testimony resumed at 1:51 p.m.}
6 THE VIDEOGRAPHER: We're back on the record. The
7 time is 1:51.
8 MR. GILLIGAN: Can we read back the question, the
9 pending question?
10 MR. KLAYMAN: Let me just ask a general question.
11 BY MR. KLAYMAN:
12 Q What was discussed, what did --
13 MR. KLAYMAN: Strike that.
14 Q What did Ms. Tripp tell you during that
15 conversation?
16 MR. GILLIGAN: Objection. That's where we started
17 this, Mr. Klayman. And I thought you and I had worked out a
18 way that we were going to deal with this.
19 MR. KLAYMAN: I will get back to that.
20 Read back the last question.
21 THE REPORTER: Was that job performance related to
22 matters which Ms. Tripp claimed were improper actions on their
23 part?
24 MR. KLAYMAN: It's after that.
25 MR. GILLIGAN: No. It's after that.
151
1 MR. KLAYMAN: There's one more.
2 THE REPORTER: Ms. Tripp maintained that they were
3 doing things that were not legal?
4 MR. GILLIGAN: He responded to that, I believe. One
5 more.
6 THE REPORTER: No.
7 And that's when he asked to speak to you.
8 MR. GILLIGAN: Oh, okay. There is no pending
9 question.
10 BY MR. KLAYMAN:
11 Q What was Ms. Tripp's complaint?
12 MR. GILLIGAN: Objection. Same thing I've now
13 objected to twice before, Mr. Klayman. We worked it out --
14 are we going to have to send --
15 MR. KLAYMAN: I don't want to use up my time, so
16 we're going off the record.
17 MR. GILLIGAN: All right.
18 Do we need to send the witness out and work it out
19 again?
20 MR. KLAYMAN: Well what is it that he was prepared
21 to say when he came back? What kind of guidance does he want
22 to try to --
23 We're off the record.
24 MR. GILLIGAN: All right. We're off the record.
25 THE VIDEOGRAPHER: We're off the record. The time
152
1 is 1:53.
2 {Reporter's Note: At 1:53 pa.m., the reporter was
3 asked to go off the record; testimony resumed at 1:54 p.m.}
4 THE VIDEOGRAPHER: We're back on the record. The
5 time is 1:54.
6 BY MR. KLAYMAN:
7 Q Did Ms. Tripp tell you why she came to see you? You
8 weren't in charge of personnel, correct?
9 A She did tell me why she came to see me, yes.
10 Q And why was that?
11 MR. GILLIGAN: For the time being, I'm asking that
12 the witness not divulge the substance of the conversations
13 with Ms. Tripp.
14 A For a period of time between Vince Foster's death
15 and Joel Klein's becoming employed, I acted as sort of
16 de facto deputy, not de jure. I did not have the title, but I
17 sort of stepped into Vince's shoes with regard to trying to
18 administer the office.
19 Q Did someone name you to that post?
20 A I just said I didn't have the title.
21 Q Did anyone ask you to do that?
22 A Mr. Nussbaum asked me to do it.
23 Q And was that disseminated to the other employees,
24 that you were the person to go see?
25 A If it was, it was only informally, but yes.
153
1 Q Was there anything in writing that was disseminated?
2 A I don't recall. I don't believe so.
3 Q Now without regard to either Ms. Pond or Ms. Gorham,
4 was the general subject matter of Ms. Tripp's concerns, did it
5 involve the way documents were handled?
6 A No.
7 Q Did it involve anything dealing with matters in your
8 area of authorization, clearances?
9 A No. It did not involve the clearance process.
10 Q Did it involve anything related to security?
11 MR. GILLIGAN: Object to the vagueness.
12 Q You may respond.
13 THE WITNESS: There is a privilege issue here. I
14 need to consult with my counsel.
15 THE VIDEOGRAPHER: We're going off at 1:56.
16 {Reporter's Note: At 1:56 p.m., the reporter was
17 asked to go off the record; testimony resumed at 2:13 p.m.}
18 THE VIDEOGRAPHER: We're going back on the record --
19 MR. KLAYMAN: Let's stay off the record. He'll tell
20 me whatever he's going to tell me --
21 MR. GILLIGAN: No. I need it -- I want this on the
22 record.
23 MR. KLAYMAN: Not if you're going to just run off
24 the clock on me.
25 MR. GILLIGAN: I'm not running off the clock on you.
154
1 I'm just trying to -- I want it on the record. I want it on
2 the record how I'm hoping to get us past the current
3 difficulties.
4 THE VIDEOGRAPHER: We're going on the record right
5 now. It's 2:13 p.m. This is the third videotape in the
6 deposition of William Kennedy.
7 I'm Bill Gregg, the legal videographer from Legal
8 Video in Little Rock, Arkansas.
9 We're still at Hendrix Court Reporting on South Arch
10 Street in Little Rock, and it's still October 15th.
11 MR. GILLIGAN: Okay. Mr. Klayman, what's creating
12 the difficulty for us here is the vagueness of the pending
13 question, which simply asked, as I recall it, did Ms. Tripp
14 say that these ladies had mishandled security matters, or that
15 her concern had to do with security matters.
16 MR. KLAYMAN: {Inaudible.}
17 MR. GILLIGAN: And if you could please be more
18 specific, we might -- I'm not promising you anything, sir --
19 but if you are more specific in telling us what you're looking
20 for, we might get past this.
21 MR. KLAYMAN: Well, first of all, I'm going to put
22 on the record an objection putting us through these games.
23 I'm trying to be accommodating. You're obviously, in my view,
24 trying to use up a lot of time here. We have limited time
25 with Mr. Kennedy. He's an extremely important witness.
155
1 And consequently we reserve our right to ask the
2 Judge to recall him as a witness, and to exceed the initial
3 time limitation of 6 hours.
4 But I'm trying to just get to a general subject
5 matter so we can lay a foundation and go further. I'm playing
6 your game, so to speak, right now at a great cost in time.
7 And, consequently, my question was not even as
8 narrow as you posed it.
9 I asked whether or not the conversation between you
10 and Ms. Tripp had something to do with security.
11 MR. GILLIGAN: And that's my point, Mr. Klayman,
12 it's so broad and vague that we are asking you if you could
13 possibly, on that score --
14 MR. KLAYMAN: No.
15 MR. GILLIGAN: Then the question is objectionable
16 both on account of its relevance and privilege.
17 MR. KLAYMAN: I can't be forced to guess. I don't
18 know -- I mean, this is a ridiculous procedure, which is
19 costing time and effort.
20 MR. GILLIGAN: I agree with you it's ridiculous,
21 Mr. Klayman, because it's irrelevant.
22 MR. KLAYMAN: It's not irrelevant. You have two key
23 material witnesses in the case. You have one material witness
24 who claims that this witness misused FBI files, from published
25 reports.
156
1 MR. GILLIGAN: Micharacterizes the record, but go
2 ahead.
3 MR. KLAYMAN: No, it did not.
4 MR. GILLIGAN: Go ahead. Are you done?
5 Then ask him -- if you think Mr. Kennedy had piles
6 of files of former Republican White House employees who no
7 longer work at the --
8 MR. KLAYMAN: Please don't ask --
9 MR. GILLIGAN: -- White House, then why don't you
10 ask him?
11 MR. KLAYMAN: You know, this is really
12 objectionable. And again you are just using up time. I
13 refuse to go on my time. We are not keeping time on this
14 gibberish right now.
15 MR. GILLIGAN: It's your gibberish, Mr. Klayman.
16 MR. KLAYMAN: And you're giving the witness answers.
17 MR. GILLIGAN: I didn't give him any answers,
18 Mr. Klayman. I'm trying to inform you --
19 MR. KLAYMAN: Certify it.
20 MR. GILLIGAN: -- as to what is a relevant --
21 MR. KLAYMAN: Certify it.
22 MR. GILLIGAN: -- question in this matter.
23 MR. KLAYMAN: Certify it.
24 MR. GILLIGAN: The question pending is objected to
25 on grounds of relevance and privilege.
157
1 And I instruct the witness not to answer.
2 MR. KLAYMAN: We'll go to the Court.
3 MR. GILLIGAN: Now?
4 MR. KLAYMAN: Yeah.
5 MR. GILLIGAN: Sure.
6 THE VIDEOGRAPHER: We're going off the record. The
7 time is 2:17.
8 {Reporter's Note: At 2:17 p.m., the reporter was
9 asked to go off the record; testimony resumed at 3:23 p.m.}
10 THE VIDEOGRAPHER: We're back on the record. The
11 time is 3:23.
12 BY MR. KLAYMAN:
13 Q Mr. Kennedy, before we took the break I had asked
14 you whether or not the conversation that you had with
15 Ms. Tripp concerned any matter relating to security.
16 MR. GILLIGAN: And that's the question --
17 MR. KLAYMAN: That question.
18 MR. GILLIGAN: And that's the question I objected
19 to.
20 MR. KLAYMAN: Yes. But we had a discussion, and I
21 thought he was going to be able to answer that.
22 MR. GILLIGAN: I understood our discussion to be as
23 follows, Mr. Klayman: That I reiterated, when we were off the
24 record and we were trying to work through this, I reiterated
25 what I had said on the record, which was it was the very
158
1 breadth of that question which was creating problems for us.
2 And I understood that the reason we were coming back
3 on the record was that you would try asking more narrowly
4 focused questions to get us through this, reserving your
5 right, reserving your obj -- reserving your right to get a
6 ruling from the Judge on our objection to the broader
7 question. That's what I thought we were doing right now.
8 MR. KLAYMAN: Well I'll try it with your suggestion.
9 MR. GILLIGAN: Okay. Please.
10 MR. KLAYMAN: I will continue with my objection in
11 terms of forcing us to go through this bizarre voir dire
12 because it's using up a lot of time, and we have limited time
13 here, as you know. And that's my objection to it.
14 But let me see if I can guess at what he might have
15 to say. I don't agree that this procedure is appropriate or
16 correct. But with that objection, because I will not agree
17 that this counts to our time, I will proceed.
18 MR. GILLIGAN: I understand your position.
19 BY MR. KLAYMAN:
20 Q Was the discussion with Ms. Tripp in any way related
21 to matters involving Government files?
22 A No.
23 Q Was the discussion with Ms. Tripp in any way related
24 to matters of these two White House support people to
25 Mr. Nussbaum and Mr. Foster doing things which they were not
159
1 authorized to do?
2 A No.
3 Q Was it in any way related to the personal conduct of
4 these two employees, Ms. Pond and Ms. Gorham?
5 A Yes.
6 Q So it didn't have anything to do with matters
7 relating to their jobs, Ms. Gorham and Ms. Pond?
8 A I think you could say it had to do with their job.
9 Q What aspect of their job, generally speaking?
10 A I don't think I could give you a specific as to the
11 aspect of their job that it affected.
12 Q You don't remember.
13 A It's not -- that was not the content of the
14 discussion.
15 Q During the course of your conversation with
16 Ms. Tripp, did she say that these two employees, Ms. Pond and
17 Ms. Gorham, had varied from office procedures?
18 A I think you could say that, yes.
19 Q How did Ms. Tripp tell you they had varied from
20 office procedures?
21 MR. GILLIGAN: Objection.
22 I don't know the answer to this question, but I need
23 to find out if the question is going to divulge privileged
24 information.
25 I don't see any other way. We're going to need to
160
1 confer with the witness. We'll take it off the record.
2 MR. KLAYMAN: Go off the record.
3 THE VIDEOGRAPHER: We're going off. The time is
4 3:28.
5 {Reporter's Note: At 3:28 p.m., the reporter was
6 asked to go off the record; testimony resumed at 3:33 p.m.}
7 THE VIDEOGRAPHER: We're going back on the record
8 now at 3:33.
9 MR. GILLIGAN: Okay. Mr. Kennedy, please answer the
10 pending question.
11 THE WITNESS: I'm sorry. What was the pending
12 question.
13 BY MR. KLAYMAN:
14 Q Was the discussion over variance from office
15 procedures by these two individuals, Ms. Pond and Ms. Gorham?
16 A Mr. Klayman, the information that Ms. Tripp brought
17 to me was personal and derogatory about these individuals.
18 And it did not relate to their handling of files or misuse of
19 Government information.
20 I don't think I can go much further than that
21 without violating their privacy interests and getting into the
22 attorney/client and other privilege issues.
23 Q To answer this question, in your opinion, would
24 violate the Privacy Act?
25 A No --
161
1 MR. GILLIGAN: That calls for a legal conclusion.
2 MR. KLAYMAN: He can go ahead and answer. He's a
3 lawyer.
4 MR. GILLIGAN: I'm objecting on grounds that it
5 calls for a legal conclusion from the witness.
6 The witness may respond.
7 THE WITNESS: What I said was it violated their
8 privacy interests. It's personal and derogatory information.
9 BY MR. KLAYMAN:
10 Q But it related to their job performance?
11 A It -- if it were correct information, one could say
12 it related to their job performance.
13 Q And in what areas? I'm not asking for the
14 derogatory information. Let's leave that out for now. But in
15 what areas did it deal with their job performance?
16 A Their overall job performance. As I said before,
17 there were not specifics, just overall job performance.
18 Q How long did this conversation take place?
19 A I can't remember with specificity, but probably no
20 more than 10 minutes to a half hour.
21 Q During that conversation was anything else discussed
22 other than the job performance of these two women?
23 A No, sir; not that I recall. It was simply related
24 to these two individuals.
25 Q With regard to the job performance, did it concern
162
1 their violation of office procedures?
2 A If it had been true information, I think you could
3 characterize it that way, yes.
4 Q Both of these individuals worked for Mr. Nussbaum
5 and Mr. Foster, correct?
6 A At this point in time Mr. Foster was dead. They
7 were employed outside Mr. Nussbaum's office, and of course
8 worked for the Office of Counsel to the President.
9 Q So they worked for both Mr. Nussbaum and Mr. Klein?
10 A I don't recall whether at this point in time -- I
11 don't think Mr. Klein was in office at this point in time.
12 Q Who was in the position of Mr. Foster at the time?
13 A It was vacant.
14 Q Did the conversation have anything to do with these
15 two women's participation in searching or copying documents?
16 A No, it did not.
17 Q Did it have anything to do with Mr. Foster's death?
18 A Tangentially, yes.
19 Q Did it have anything to do with removing documents
20 from his office?
21 A No.
22 MR. MAZUR: Excuse me, Larry. Could you hold on a
23 second? I think she's trying to get your attention.
24 {Reporter's Note: Mr. Klayman was given a
25 telephone.}
163
1 MR. KLAYMAN: Hello. Yes. Yes, hi, Brenden. I'm
2 sitting here --
3 MR. GILLIGAN: Oh, whoa, whoa.
4 MR. KLAYMAN: -- in the deposition with
5 Mr. Gilligan. Perhaps we can call you back on a speaker
6 phone.
7 Let me take it. I have it on my rolodex, but let me
8 take it from you. All right. Thank you. We'll call you
9 right back.
10 THE VIDEOGRAPHER: We're going off the record at
11 3:38.
12 {Reporter's Note: At 3:38 p.m., the reporter was
13 asked to go off the record; the record resumed at 3:39 p.m.}
14 {Reporter's Note: The record continued with a
15 telephone conversation with Brenden Allen.}
16 MR. KLAYMAN: Mr. Allen, Larry Klayman with
17 Mr. Gilligan and a host of others at a deposition.
18 MR. ALLEN: Okay.
19 MR. KLAYMAN: We understand that the Judge had a
20 personal emergency, and we hate to call you under those
21 circumstances.
22 We reached an impasse during this deposition in
23 terms of asking a question and a series of questions
24 concerning Mr. William Kennedy's discussions with Linda Tripp
25 in his office.
164
1 And we've been trying to pursue a method of getting
2 the information that is needed without having to involve the
3 Court, in light of the Judge's emergency. But from the
4 plaintiff's perspective, that's taking a great amount of time.
5 At this point we don't know how to handle it. Maybe
6 it's something that we should continue with. And we've
7 registered an objection on the record that this is using a
8 great deal amount of time.
9 If you'd like, I can explain to you exactly what the
10 issue is.
11 MR. ALLEN: Well there is probably no need to tell
12 it to me, because you'll just have to tell it to the Judge
13 anyway.
14 MR. KLAYMAN: Okay.
15 MR. ALLEN: I do not expect him in certainly before
16 5 o'clock today, and there's probably a pretty good chance
17 that he will not even be in at all today, just depending on
18 how things went where he is.
19 So, you know, the best I'm going to be able to do is
20 leave him a message --
21 MR. KLAYMAN: Okay.
22 MR. ALLEN: -- tell him what the story is, just that
23 y'all have reached a point of impasse on something, and get
24 the phone number.
25 I just can't make any promises on when he's going to
165
1 be back even, you know, to decide what to do.
2 MR. KLAYMAN: That's fine.
3 MR. ALLEN: How much longer are y'all going to be in
4 that deposition where you are?
5 MR. KLAYMAN: We'll be here at least another
6 3 hours, at least.
7 MR. GILLIGAN: Well, Mr. Allen, this is Jim Gilligan
8 from the Justice Department.
9 Several things: We'll be here for a while. It's
10 about 3:30, 25 till 4:00 in Little Rock.
11 Mr. Kennedy has got child care issues. I don't
12 think we'll be here another 3 hours. In fact there's not
13 3 hours left on the 6 hour --
14 MR. KLAYMAN: Well there's enough --
15 MR. GILLIGAN: Please don't interrupt me,
16 Mr. Klayman; I allowed you to speak.
17 But we will probably be here, I would say, till 6
18 o'clock our time, which would be 7 o'clock your time.
19 MR. KLAYMAN: Well let me add to that. We have
20 about, according to our calculation, about 2-1/2 hours left.
21 We've had a lot of breaks, a lot of time off the record for
22 consultations between defense counsel and the deponent.
23 We'd be willing to reconvene it in the morning.
24 It's not my intention to keep people here late unless people
25 would like to try to finish today. But that's basically our
166
1 view, is that we will continue as late as they're able to
2 work. If not, we'll pick it up in the morning.
3 MR. ALLEN: Well, again, I guess the best I'm going
4 to be able to do, I'm just at the mercy of when the Judge
5 comes back. So I can leave him a message everywhere that he
6 might show up.
7 MR. KLAYMAN: I mean, in some ways it might make
8 sense to pick it up in the morning. That would give the Judge
9 an opportunity, if he was coming in tomorrow morning.
10 MR. GILLIGAN: Let me say, first of all, Mr. Allen,
11 you know, the Judge's family emergency comes first --
12 MR. KLAYMAN: We obviously understand that. I've
13 made that clear.
14 MR. GILLIGAN: All right. All right.
15 But second of all, assuming the Judge has to
16 opportunity to get back to us, assuming that, now we are, as
17 you know, in Little Rock, Arkansas. We have lives of our own
18 that we wish to return to. So Mr. Klayman may be willing to
19 keep everybody here overnight for his purposes, but if we can
20 wrap this up today, I think that would be everyone else's
21 preference.
22 MR. KLAYMAN: And I'm not arguing with Mr. Gilligan,
23 Mr. Brenden, because I know that that's not a province that
24 you want to be involved in. But we're flexible. We can work
25 late tonight, we can come in tomorrow morning. That's my
167
1 offer.
2 But we have 2-1/2 hours left of actual testimony
3 notwithstanding any breaks that they take to consult with
4 their client.
5 MR. ALLEN: Okay.
6 MR. KLAYMAN: The number here is 501-372-2748. And
7 we can work any which way the Court desires. We too don't
8 want to interrupt the Judge in a crucial period.
9 MR. ALLEN: Well I'll leave him the message. And I
10 expect he'll get back to you as soon as he can. I just hope
11 he gets back soon, and I think he's planning on it. So unless
12 something happens, he should be back in the next hour or two,
13 I would expect. That's sort of the best I can do, I'm sure --
14 MR. KLAYMAN: Well understand we're doing the best
15 we can. And I've just put an objection on the record insofar
16 as the technique that we're using, from our perspective, is
17 using up unnecessary time.
18 MR. ALLEN: Okay. I'll leave a message for the
19 Judge.
20 MR. KLAYMAN: Thank you.
21 MR. GILLIGAN: Let me just state for the record
22 that, and on the view of the defendant, the reason this is
23 taking up so much time is because you are insisting on
24 pursuing wholly-irrelevant matters, Mr. Klayman, that
25 implicate privacy interests and privilege. I just thought --
168
1 MR. KLAYMAN: Well let the record reflect that you
2 never wanted to take the deposition in the first place.
3 MR. GILLIGAN: I didn't want you to take endless
4 depositions. Mr. Klayman, you could have taken this
5 deposition months ago; we would've been happy to be here.
6 BY MR. KLAYMAN:
7 Q What was it about the death of Mr. Foster that was
8 involved?
9 A I don't think I can answer that without getting into
10 a privileged area.
11 MR. GILLIGAN: Can I ask for a clarification?
12 Involved with what?
13 MR. KLAYMAN: He said the matter involved
14 Mr. Foster's death.
15 MR. GILLIGAN: Well if the witness needs to consult
16 with his counsel about a privileged matter, then let us do so.
17 Off we go.
18 THE VIDEOGRAPHER: We're going off the record. The
19 time is 3:45.
20 {Reporter's Note: At 3:45 p.m., the reporter was
21 asked to go off the record; testimony resumed at 3:48 p.m.}
22 THE VIDEOGRAPHER: We're back on the record. The
23 time is 3:48.
24 BY MR. KLAYMAN:
25 Q How was the issue of Mr. Foster's death involved?
169
1 A What she had to say to me concerned matters that
2 arose after he killed himself. And I don't think I can go
3 further than that without getting into the privilege areas and
4 the privacy interest of these two individuals involved.
5 Q How is it that variance from office procedures,
6 which you testified of concern, relates to the death of Vince
7 Foster?
8 MR. GILLIGAN: I'm going to object for the very
9 reasons that the witness just stated, privacy interest
10 involved and the question of privilege, Mr. Klayman.
11 And direct the witness not to answer even if you
12 were so inclined.
13 I mean we've told you this deals with personal,
14 private and derogatory information relating generally to job
15 performance having nothing to do with FBI background
16 information, misuse of the Government files and we're not
17 going to let it go forward (phonetic). We've tried. We've
18 tried.
19 MR. KLAYMAN: In the eyes of the beholder, you have
20 not tried.
21 BY MR. KLAYMAN:
22 Q How is it that the office procedures were varied
23 with? Which office procedures were varied with?
24 MR. GILLIGAN: Objection. Same instruction. Same
25 objection.
170
1 MR. KLAYMAN: Certify it.
2 BY MR. KLAYMAN:
3 Q When Vince Foster was alive and worked in the White
4 House Counsel's Office, he did have access to FBI summaries
5 and raw data; did he not?
6 A Yes.
7 Q And he reviewed that information from time to time,
8 correct?
9 A Sporadically, but yes.
10 Q And in reviewing that information he sometimes
11 consulted with you, correct?
12 A Yes.
13 Q And these two individuals, Ms. Gorham and Ms. Pond,
14 worked with Mr. Foster when he was alive; correct?
15 A I can't answer that. Ms. Gorham was his secretary.
16 I don't know how much Betsy worked with him, Betsy Pond. So
17 I've got to limit my answer to that.
18 Q And as Ms. Gorham's being his secretary, she
19 therefore did whatever he asked her to do in the context of
20 his job responsibilities in the White House Counsel's Office;
21 correct?
22 MR. GILLIGAN: Objection lack of foundation.
23 You may answer.
24 A I was in the OEOB. She was in the West Wing, as was
25 he. I have no reason to know that she ever did not do what he
171
1 asked her to. I have no reason to know that.
2 But I've also got to say unequivocally, I wasn't
3 over there all the time every day. So to my knowledge she was
4 a good employee.
5 Q Well, and what I'm trying to get at is that
6 Ms. Gorham may have worked on matters involving clearance
7 procedures; correct?
8 A Not to my knowledge; no, sir.
9 Q But you don't know everything that Mr. Foster asked
10 her to do, do you?
11 A I do not.
12 Q And Mr. Foster did have within his job
13 responsibilities ultimate supervision over you, correct?
14 A That is correct.
15 Q And your responsibilities concerned clearance
16 procedures in part, correct?
17 A That is true.
18 Q So you don't know for a fact that Ms. Gorham never
19 had anything to do with clearance issues?
20 A I do not have any knowledge that she did.
21 Q You don't have any knowledge that she didn't, do
22 you?
23 A I was heavily involved in the clearance procedures,
24 Mr. Klayman, as I've testified before --
25 Q Can you categorically tell me that you know
172
1 everything Mr. Foster asked her to do when he was alive?
2 A I'd like to finish my question.
3 I have a lot of knowledge about how the clearance
4 procedure worked while I was there performing those services
5 for the Office of Counsel to the President. And she had, of
6 my own personal knowledge, almost no involvement in it.
7 Q But my question was -- and I don't understand why
8 you won't answer my question, Mr. Kennedy. You are a lawyer
9 and you understand questions, don't you?
10 MR. GILLIGAN: Did you --
11 THE WITNESS: Would you please restate the question
12 that he asked, Ms. Court Reporter?
13 MR. KLAYMAN: You're using my time, and I object to
14 this as well.
15 MR. GILLIGAN: I object to the harassment and --
16 MR. KLAYMAN: It's not harassment.
17 MR. GILLIGAN: -- {inaudible}.
18 I object to having my objections interrupted. I
19 object to the browbeating and the harassment of the witness.
20 MR. KLAYMAN: Will you just answer my question,
21 Mr. Kennedy?
22 THE WITNESS: If you would repeat it, I'd be glad
23 to.
24 BY MR. KLAYMAN:
25 Q You don't know everything that Mr. Foster asked
173
1 Ms. Gorham to do, do you?
2 A I do not.
3 Q And you don't know that he didn't ask her to work on
4 issues involving clearance, do you?
5 A I do not know everything he asked her to do.
6 Q Including that, correct?
7 A I don't know everything he asked her to do.
8 Q And he may have asked her to do something, and you
9 may not have been told; correct.
10 MR. GILLIGAN: Objection. Calls for speculation.
11 Q Correct?
12 A I don't know what he asked her to do on a day-to-day
13 basis.
14 Q And you don't know that he didn't ask her to work on
15 clearance matters, do you?
16 MR. GILLIGAN: Objection. Asked and answered.
17 Q Correct?
18 A I think I've answered that, Mr. Klayman. I don't
19 know what he asked her to do on a day-to-day basis, as I've
20 testified repeatedly.
21 Q What action, if any, did you take after you met with
22 Ms. Tripp?
23 A I don't think I can answer that without getting into
24 a privileged area.
25 MR. GILLIGAN: And so I therefore instruct the
174
1 witness not to do so.
2 MR. KLAYMAN: What is the privilege?
3 MR. GILLIGAN: Attorney/client, deliberative
4 process, potentially Presidential communications.
5 BY MR. KLAYMAN:
6 Q During your conversation with Ms. Tripp, did you
7 discuss anything other than these two female employees?
8 A Not that I recall. The subject was just these two
9 individuals.
10 Q Did she ask you any questions about what you do
11 generally?
12 A She did not.
13 Q Had you ever talked with her before this occasion?
14 A Sure, from time to time when I was in the West Wing.
15 Q And what was the nature of your conversations?
16 A I don't recall. It would have been mostly social.
17 But if Bernie, for example, relayed a request
18 through her to me, I would have dealt with that. It could
19 have been any number of things.
20 Q And Mr. Nussbaum, Bernie as you call him, did relay
21 requests concerning clearance matters; did he not?
22 A I don't recall specific clearance matters. What I'm
23 trying to for example is, Bernie might have her call me and
24 say, `I need you to come over at 3 o'clock,' things of that
25 nature.
175
1 Q Are you telling me categorically that she never
2 contacted you in matters involving clearance for the Office of
3 Personnel Security?
4 A I don't recall that she ever did.
5 Q You don't remember?
6 A I don't recall that she ever did.
7 Q Is that a no, or is that I don't remember?
8 A It's I don't recall that she ever did.
9 Q Did you have an opportunity to speak with Ms. Tripp
10 after that meeting that we've just been talking about for the
11 last several questions?
12 A Yes. I did.
13 Q And when was that?
14 A Shortly thereafter. I don't remember specifically.
15 Q Did you meet with her again?
16 A Yes. I did.
17 Q It was also in your office?
18 A Yes. It was.
19 Q Who contacted who to set up the meeting?
20 A She contacted me.
21 Q And what did she say to you?
22 A She wanted to meet with me on the subject of the
23 previous meeting.
24 Q Did she tell you why she wanted a second meeting?
25 A We had left it, at the end of the first meeting,
176
1 that she would get back in touch with me.
2 Q Why was she to get back in touch with you?
3 A Concerns the subject of the first meeting.
4 MR. KLAYMAN: I renew my offer to have this
5 testimony put under confidential seal.
6 MR. GILLIGAN: Not unless the Judge says so. It's
7 privileged, it's extremely personal, it's irrelevant. No.
8 BY MR. KLAYMAN:
9 Q After Mr. Foster died were documents removed from
10 his office?
11 MR. GILLIGAN: Object to the relevance.
12 A I have no knowledge of that, other than press
13 reports, Mr. Klayman.
14 Q From time to time Mr. Foster did have FBI materials
15 in his office, did he not?
16 MR. GILLIGAN: Object to the vagueness.
17 A You've got to specify by what you mean by FBI
18 materials.
19 Q FBI background reports?
20 A I previously testified about that, Mr. Klayman; not
21 to my knowledge, but it's possible that he could have.
22 Q Did he have a safe in his office?
23 A I don't think he did. No.
24 Q He had the authority to request raw data from the
25 FBI, did he not?
177
1 A Yes. I believe he did.
2 Q And he didn't have to clear that with you when he
3 requested it, did he?
4 A I worked for him, Mr. Klayman.
5 Q The answer is he didn't, correct?
6 A Mr. Klayman, he was my superior.
7 Q So the answer is no?
8 A I don't think that Mr. Foster would have done so
9 without telling me about it.
10 But the short answer is, no, he would not have had
11 to clear that with me.
12 Q And for him to get access to FBI summary reports, he
13 wouldn't have to clear that with you either; correct?
14 MR. GILLIGAN: Asked and answered.
15 A That question confuses me. Would you restate it?
16 Q I asked about raw data first, FBI raw data.
17 A This question --
18 Q -- not just summary reports.
19 A -- {inaudible} concerns?
20 Q Summary reports; same answer?
21 A Same answer.
22 Q Did you ever discuss with Vince Foster concerns over
23 FBI or Government files?
24 A You've got to be more specific. I do not understand
25 that question, Mr. Klayman.
178
1 Q I take it you did discuss FBI summary reports with
2 Mr. Foster from time to time?
3 A The substance of them, yes.
4 Q Whose reports did you discuss with him?
5 MR. GILLIGAN: Objection. Irrelevant, privacy
6 interest, attorney/client privilege, deliberative process
7 privilege, possibly Presidential communications privilege.
8 MR. KLAYMAN: Certify.
9 Are you willing to put this under confidential seal?
10 MR. GILLIGAN: No.
11 I'm willing to talk to the witness about it to see
12 if we can work around this. I'm not willing to take it off
13 the clock though.
14 MR. KLAYMAN: You can talk to the witness.
15 MR. GILLIGAN: All right.
16 MR. KLAYMAN: Off the record.
17 MR. GILLIGAN: No.
18 MS. PAXTON: {Inaudible} instruction.
19 MR. GILLIGAN: We went through this with Mary
20 Anderson.
21 MR. KLAYMAN: What did you put on the record,
22 Ms. Paxton?
23 MR. GILLIGAN: She didn't put anything on the
24 record.
25 MR. KLAYMAN: Well I heard her talking to you.
179
1 MR. GILLIGAN: Right.
2 MR. KLAYMAN: Who is the one making the objections
3 here?
4 MR. GILLIGAN: I made an objection.
5 MR. KLAYMAN: What is it?
6 MR. GILLIGAN: To repeat, I object to the question
7 on the grounds of relevance, privacy interests potentially
8 implicated, attorney/client privilege, deliberative process
9 privilege, and --
10 MR. KLAYMAN: Are you instructing him not to answer?
11 MR. GILLIGAN: Yes. I did. I did do that.
12 MR. KLAYMAN: Certify.
13 BY MR. KLAYMAN:
14 Q Did you ever discuss FBI summary reports of
15 Republicans with Mr. Foster?
16 A I do not recall doing so. It is possible that
17 happened if they were properly in the clearance process.
18 Q What do you mean by "properly in the clearance
19 process"?
20 A From time to time Republicans would be appointed to
21 posts that required them to be cleared.
22 Q Did you ever make a list of Republicans who were to
23 be appointed to posts in the Clinton Administration?
24 A As I previously testified, Mr. Klayman, that's not
25 what we did.
180
1 Q Basically you didn't keep any records, that's --
2 MR. GILLIGAN: Objection.
3 Q That's what I'm getting from this deposition.
4 MR. GILLIGAN: That's mischaracterizing his
5 testimony.
6 Q Is that what basically is the case?
7 A Mr. Klayman, that misrepresents almost everything
8 I've said today. We had beaucoup records.
9 Q What were you beaucoup records?
10 A We had voluminous records associated with the
11 clearance process.
12 MR. KLAYMAN: B-e-a-c-o-u-p (sic).
13 Q Go on.
14 A We had voluminous records associated with the
15 clearance process.
16 Q But you didn't have lists of what FBI summary
17 reports you were reviewing, correct?
18 A No, Mr. Klayman. We had lists of our files, and
19 they were related to those files and part of those files.
20 Q During the time that you were at the White House,
21 how many individuals went through the clearance process?
22 A I couldn't tell you. I don't know. Many.
23 Q Did you ever request or did anyone else, to the best
24 of your knowledge, ever request the FBI file of Linda Tripp?
25 A I never requested it. If it was requested by
181
1 anyone, it would have been in the course of the Update
2 Project.
3 Q Do you know whether anyone else requested?
4 A I do not know.
5 Q On the day that Mr. Foster died did you indicate to
6 a White House switchboard operator named Virginia Sullivan
7 that you did not want to talk with Mr. Foster and that she
8 should tell him you were unavailable?
9 MR. GILLIGAN: Object to the relevance.
10 A No.
11 Q Did you have a conversation with Virgina Sullivan
12 that day?
13 A Not that I recall. I don't know who Virgina
14 Sullivan is.
15 Q White House switchboard operator?
16 A No. As far as I know, I had no such conversation.
17 Q With a White House switchboard operator the day that
18 Mr. Foster died?
19 A As far as I know, that is correct.
20 Q Did you have any such conversation the day before
21 Mr. Foster died with the White House switchboard operator
22 saying that you didn't want to take his call?
23 A No, not that I recall.
24 Q On the night that Mr. Foster died, do you know what
25 time you were notified of his death?
182
1 A Not precisely. I think it was around 8 o'clock or
2 so, but I do not know precisely.
3 Q Who notified you?
4 A Craig Livingstone.
5 Q How did Mr. Livingstone come to get the information
6 about Mr. Foster's death?
7 A I'm not sure. You'd have to ask him.
8 MR. GILLIGAN: Just let me have a continuing
9 objection to the relevance of the questions concerning
10 Mr. Foster's death.
11 MR. KLAYMAN: Okay. So noted.
12 BY MR. KLAYMAN:
13 Q You went to Fairfax Hospital with Mr. Livingstone to
14 identify the body?
15 A I met Mr. Livingstone at Fairfax Hospital.
16 Q Why was Mr. Livingstone at Fairfax Hospital? What
17 business of it was his?
18 A He volunteered to come with me as a friend.
19 Q Was Mr. Livingstone your good friend?
20 A Considered Craig a friend, yes.
21 Q Is he still a friend?
22 A He is.
23 Q When was the last time you talked to him?
24 A I don't remember the date. It was the day that we
25 testified in front of the Government Operations Committee.
183
1 Q Have you talked to him since?
2 A No, sir.
3 Q Have you corresponded with him --
4 A No, sir.
5 Q -- in writing?
6 A I have not.
7 Q Have any of your counsel?
8 A May I respond please? Repeat your last question?
9 Q Has any of your counsel corresponded with
10 Mr. Livingstone?
11 A Anything my counsel would or would not have done
12 would be covered by an attorney/client privilege, Mr. Klayman.
13 Q Not with regard to Mr. Livingstone it wouldn't.
14 A My knowledge of what they would or would not have
15 done would be covered by attorney/client privilege,
16 Mr. Klayman.
17 MR. KLAYMAN: Certify it.
18 BY MR. KLAYMAN:
19 Q On the evening after Mr. Foster's death, did you
20 talk to any FBI Agents or Secret Service Agents about
21 Mr. Foster?
22 A Not that I recall; no, sir.
23 Q On the day after Mr. Foster's death, did you or
24 anyone else that you know of enter his office?
25 A I did not enter his office. Everything that I know
184
1 about that day with regard to his office would come from press
2 reports, Mr. Klayman.
3 Q Have you ever entered his office after his death?
4 A Certainly.
5 Q Under what circumstances?
6 A Conduct of my duties.
7 Q Did you enter that office between the time that he
8 died and that office being occupied by someone else?
9 A I don't recall doing so. There would've had to be
10 somebody in that office for me to go into it.
11 Q Did you enter his office the night that he died?
12 A I did not.
13 Q Do you know of anyone who did?
14 A Only from press reports.
15 Q After Mr. Foster's death, did you raise any concerns
16 with anyone about the contents of Mr. Foster's office safe?
17 A Mr. Klayman, I don't believe Mr. Foster had a safe.
18 Q Did he have a safe located in his credenza?
19 A As far as I know he had no safe in his office,
20 Mr. Klayman.
21 Q Did Mr. Foster --
22 MR. KLAYMAN: Strike that.
23 Q Did Mr. Nussbaum have a safe in his office?
24 A Yes, he did.
25 Q Did he have more than one?
185
1 A As far as I know he had only one.
2 Q What did he keep in that safe?
3 A You'll have to ask him. I don't know.
4 Q Did you ever keep anything in that safe?
5 A I did not.
6 Q Do you know whether Mr. Foster did?
7 A I do not.
8 Q Are you aware of any apartment that Mr. Foster
9 shared with other Arkansas friends in the Washington area?
10 A No. I don't believe he had an apartment, other than
11 the one he lived in with his wife.
12 Q Do you know whether Mr. Foster ever made trips to
13 Switzerland?
14 MR. GILLIGAN: Object to the relevance.
15 A I do not know if he made trips to Switzerland.
16 Q Do you know if he made any trips outside of the
17 country while he worked at the White House?
18 MR. GILLIGAN: Same objection.
19 A I don't think he did, but I do not know.
20 Q Do you know of anyone by the name of Phillip
21 Marshall?
22 A I don't believe I know a Phillip Marshall.
23 Q You're not sure?
24 A I don't think I know a Phillip Marshall.
25 Q Do you know a Jerry Luther Parks?
186
1 A Jerry Luther Parks. No, I don't think I do.
2 Q Have you been following recent news reports with
3 regard to the Lewinsky controversy?
4 A It's hard to avoid them. I have not been paying
5 close attention to them; no, sir.
6 Q Did you observe Ms. Tripp the day she finished her
7 Grand Jury testimony and gave a small statement on the
8 courthouse steps? Did you see that?
9 A No, sir; I did not.
10 Q Have you seen that reported?
11 A No, sir. I don't think so.
12 Q Has anyone mentioned to you what she said on those
13 courthouse steps?
14 A No, sir.
15 Q Have you heard anything to the effect that during
16 the time she was with the White House Counsel's Office she saw
17 a lot of illegal conduct, has something like that been
18 conveyed to you?
19 A No, sir. No one has conveyed that to me.
20 Q Assuming she said that, what would she be talking
21 about?
22 MR. GILLIGAN: Objection. Calls for speculation.
23 A I couldn't possibly answer that. I do not know what
24 in the world she could be talking about.
25 Q That second meeting that you had with Ms. Tripp, how
187
1 long did it last?
2 A Maybe 20 minutes or so.
3 Q Was anyone present during either of these two
4 meetings?
5 A No, sir.
6 Q Was your door open during these meetings?
7 A No, sir. It was not.
8 Q It was closed?
9 A Yes, sir.
10 Q Who closed the door?
11 A I did.
12 Q During either of these two meetings with Ms. Tripp,
13 did you observe her looking around your office?
14 A She was in my office.
15 Q So you assume she was looking around your office?
16 A She was doing whatever people do. She was
17 physically in my office. I did not observe her doing anything
18 but talking to me.
19 Q And at the time she was in your office, you had
20 clearance materials in your office?
21 A I don't recall with specificity, but probably I did.
22 Q And you had FBI summary reports in your office?
23 A In the safes. Yes, I did.
24 Q And you had FBI raw data in your office?
25 A In the safes. Yes, I did.
188
1 Q But in the course of the day sometimes you had that
2 information out on the tables or the desks, correct?
3 A If I was working on it, that's correct.
4 Q During the course of your conversations with
5 Ms. Tripp, did she ever mention Marsha Scott?
6 A No. She did not.
7 Q What role did Marsha Scott have to play with regard
8 to clearance procedures?
9 A I don't think Marsha Scott had any role with regard
10 to clearance procedures.
11 Q When you were at the White House what role did
12 Ms. Scott have?
13 A I'm not sure I can answer that with specificity,
14 Mr. Klayman. She's had a number of positions.
15 She was for a long time, while I was there, the
16 director of -- and I don't remember the precise title -- the
17 Correspondence Office.
18 Q And what was the duties and responsibilities of the
19 Correspondence Office?
20 A They handled correspondence for the President.
21 Q Did Ms. Scott ever handle FBI summary reports?
22 A No, sir; not to my knowledge.
23 Q Did she ever handle FBI raw data?
24 A Not to my knowledge; no, sir.
25 Q Are you aware of a White House Computer System
189
1 called WHO-DB?
2 A From press reports. Yes.
3 Q Before I get into that, other than these two
4 meetings with Ms. Tripp, did you have any other contact with
5 her?
6 A As I previously testified, Ms. Tripp worked outside
7 Mr. Nussbaum's office, and I had lots of contact with her.
8 Q Did you ever have any more meetings with her other
9 than these two?
10 A No, sir; not that I recall.
11 Q Did you frequently see her in your office suite
12 after these two meetings?
13 A No, sir.
14 Q Did you see her in your office suite after these two
15 meetings?
16 A I don't believe so; no, sir.
17 Q Did there come a point in time when Ms. Tripp was
18 transferred to the Pentagon?
19 A I know from press reports that happened. I couldn't
20 tell you when that happened. I'm not sure.
21 Q Did that happen when you were still at the White
22 House?
23 A I don't believe so, but I don't know for sure.
24 Q When you were at the White House did you ever meet a
25 Terry Good?
190
1 A I believe so, yes.
2 Q When did you meet Terry Good?
3 A I think early in 1993.
4 Q Under what circumstances did you meet him?
5 A It was part of trying to understand the job. If
6 it's the same Terry Good I think it is, he deals with
7 Presidential records.
8 Q Office of Personal Records, Presidential Records?
9 A I'm sorry...
10 Q How about the Office of Records Management, does
11 that ring a bell?
12 A That sounds better.
13 Q And what interaction, if any, did your office have
14 with his?
15 A Well he was in charge of Presidential records or
16 records management. And our files were Presidential records,
17 and ultimately came to him. And we were trying to understand
18 that process.
19 Q Did you ever take FBI summary reports or raw data
20 down to his office to file it?
21 A No, sir.
22 Q Did you ever send the files of appointees down to
23 his office for archiving?
24 A Yes. They were sent there on a routine basis by our
25 office.
191
1 Q And in those files, of course, were the FBI summary
2 reports?
3 A No, sir. They were obtained in the safe.
4 Now they would ultimately go there but they were
5 retained in the safe while I was there.
6 Q How long would they be retained in your safe?
7 A I don't think there was a set time period.
8 Q Was there a procedure for retaining them in your
9 safes for a period of time and then sending them down to the
10 Office of Records Management?
11 A Mr. Klayman, they were simply retained in the safes
12 for as long as we felt like we didn't need them -- until we
13 felt like we didn't need them anymore. And then they were
14 sent down to become part of that person's files.
15 Q Who would take them down to the Office of Records
16 Management?
17 A If I remember correctly, they were sealed, and
18 either I would or Mr. Livingstone would, depending on the
19 source of them.
20 Q Mr. Livingstone would come and get them and take
21 them to Mr. Good's office?
22 A No. If they were related to White House employees,
23 they would go to Mr. Good in the normal course, I believe.
24 Q What do you mean by "the normal course"?
25 A The procedures applicable to that.
192
1 Q And what are they?
2 A They were stored -- White House employees' files
3 were stored in a vault in the Office of White House Personnel
4 Security. When those files -- for example, when someone was
5 no longer employed, that file would be transferred to Records
6 Management.
7 Q What if those files -- some of those files were up
8 in your office, how would they get back to the Office of
9 Personnel Security?
10 A I did not have White House employee files in my
11 office.
12 Q Generically speaking, what other than White House
13 appointees' files did you have in your office?
14 A You've got to be more specific. What do you mean by
15 "White House appointees"?
16 Q Administration appointees files?
17 A That's generally what I had in my office.
18 Now I would have from time to time employee files in
19 my office to be dealt with on a case-by-case basis. But those
20 files resided in the Office of White House Personnel Security.
21 Q So the files that you had in your office, how did
22 they get over to Office of Records Management for archiving?
23 A They were delivered by us in the normal course; and
24 the FBI summaries, I would deliver.
25 Q And who delivered them for "us," as you put it, in
193
1 the ordinary course, what person or persons?
2 A I'm sorry, Mr. Klayman, I don't know the answer to
3 that. It would change from time to time depending on who was
4 working in the office.
5 Q Can you think of the person's title or position?
6 A No, I'm sorry, right now I cannot. They were -- I
7 don't remember what their titles were.
8 Q You don't know that Mr. Livingstone didn't make
9 photocopies of FBI summary reports and disseminate them
10 outside of the White House, do you?
11 MR. GILLIGAN: Object to the question as vague,
12 ambiguous, and calling for speculation.
13 A I have no knowledge of such behavior.
14 Q You don't know he didn't do that though, do you?
15 MR. GILLIGAN: Same objection --
16 A I have no --
17 THE WITNESS: Sorry.
18 A I do not believe that he did. I have no knowledge
19 that he did. It would surprise me greatly if he had done
20 something like that.
21 MR. GILLIGAN: Add lack of foundation.
22 Q Would it surprise you great -- did you ever learn
23 that Mr. Livingstone had been arrested when he worked at the
24 White House? Did you ever learn that?
25 A I think we may be moving into a privileged area.
194
1 Q It's a matter of a Congressional record, public.
2 A If I understand you correctly, you are asking me
3 what I learned while I was at the White House.
4 Q Yeah.
5 Did you ever learn that Mr. Livingstone had been
6 arrested, based upon a criminal complaint that had been filed
7 against him by his next-door neighbor, for allegedly
8 threatening to smash her face in, anything to that effect?
9 MR. GILLIGAN: Object --
10 A Okay. What --
11 MR. GILLIGAN: Objection on grounds of relevance,
12 attorney/client, deliberative process privilege.
13 A When in your question am I suppose to know this,
14 Mr. Klayman?
15 Q When you were working at the White House.
16 A No, I did not know that.
17 Q Were you aware that he had had a problem with his
18 next-door neighbor?
19 A I have heard that from press reports after the time
20 I left the White House.
21 Q Did that surprise you?
22 A These were only press reports, Mr. Klayman. I don't
23 know if they were accurate or not.
24 Q If that was true, would that surprise you?
25 A I'm not going to speculate about the truth or
195
1 untruth of those things. I wasn't there. I don't know
2 whether the press reports are accurate, Mr. Klayman.
3 Q Mr. Livingstone has claimed that the acquisition of
4 a large number of Republican FBI files was a bureaucratic
5 snafu, correct?
6 A I believe that's what he claims. Yes, sir.
7 Q And do you have -- that acquisition of FBI files of
8 Republicans, in large numbers, occurred while you were in
9 charge; correct?
10 A I can't respond to that. I don't know the timing of
11 it, Mr. Klayman.
12 Q So when you worked at the White House you had no
13 knowledge of FBI files coming over from the FBI to the White
14 House on Republicans that were either not appointees or
15 hold-over employees?
16 A Mr. Klayman, if your question is, `Did I know it
17 while it was going on?' The answer is no.
18 Q Do you now know it?
19 A I know it from press reports. And since I attended,
20 you know, a Congressional hearing I know what I heard in the
21 Congressional hearing.
22 Q Do you accept that Republican files came over that
23 shouldn't have come over from the FBI to the White House, do
24 you accept that?
25 A Yeah. I think that happened; yes, sir.
196
1 Q Do you have any explanation as to why that happened?
2 A I think the explanation is as Mr. Livingstone has
3 claimed it to be. I don't know how it happened.
4 Q And what has Mr. Livingstone claimed it to be?
5 A What you just said, a bureaucratic snafu.
6 Q Well specifically what did that bureaucratic snafu
7 entail?
8 A Mr. Klayman, all I can tell you is what I've either
9 heard from press reports or heard in the Congressional
10 hearing, which was that it was mistake caused by or arising
11 from the use of wrong lists or misunderstanding what the lists
12 were for.
13 Q Had you ever --
14 MR. KLAYMAN: Strike that.
15 Q Was there a procedure on which list to use to
16 requisition FBI files at the White House when you were there?
17 MR. GILLIGAN: Object to vagueness and the
18 mischaracterization of the record.
19 A If I understand your question, `Was there a
20 procedure?' Yes, there was.
21 Q What was the procedure?
22 A They were to use lists provided by the Secret
23 Service to identify which files should be requested.
24 Q Did you check those lists before the requisition
25 forms were sent to the FBI?
197
1 A I did not.
2 Q So the total responsibility is left in the hands of
3 Craig Livingstone?
4 A That was his office's function.
5 Q And, of course, you knew that Craig Livingstone,
6 prior to becoming head of the Office of Personnel Security,
7 had had no security experience?
8 A One is you've got, you know, to define what you mean
9 by "security experience." He had had some security experience
10 in providing security for events.
11 Q But not dealing with FBI materials?
12 A No, sir. He had no formal training in that.
13 Q Did that concern you?
14 A Certainly it did.
15 Q Did you express those concerns to anybody?
16 MR. GILLIGAN: Objection to the extent that it's
17 calling for an answer that will violate the attorney/client
18 privilege.
19 Q You can respond.
20 MR. GILLIGAN: Not if it will violate the
21 attorney/client privilege.
22 THE WITNESS: I'm afraid this could drift into a
23 privileged area.
24 MR. KLAYMAN: What a coincidence.
25 Certify it.
198
1 It's not funny, but the way you guys work together
2 obviously is quite predictable.
3 MR. GILLIGAN: Your insinuations are insulting and
4 predictable, Mr. Klayman.
5 MR. KLAYMAN: What privilege is at issue?
6 MR. GILLIGAN: Attorney/client, deliberative process
7 is another possible privilege, possibly Presidential
8 communications. I'd have to know more.
9 MR. KLAYMAN: This goes to the heart of the case,
10 Mr. Gilligan. Are you instructing him not to answer?
11 MR. GILLIGAN: You're asking him -- the question is
12 -- again? Let me hear it again.
13 MR. KLAYMAN: The --
14 MR. GILLIGAN: I'd like to --
15 MR. KLAYMAN: -- {inaudible) here is negligence.
16 MR. GILLIGAN: I'm asking for the question to be
17 read back, Mr. Klayman. Please allow me to hear it again.
18 It's my right.
19 THE REPORTER: They're not being FBI --
20 Wait a minute.
21 They're not being FBI issues.
22 Let me try...
23 Not dealing with FBI issues.
24 MR. KLAYMAN: If you want this read back, I object
25 to having this count against our time.
199
1 MR. GILLIGAN: Your objection is noted.
2 THE REPORTER: Do you want the question before?
3 MR. GILLIGAN: I want to know what the pending
4 question is to which --
5 THE REPORTER: You knew that Craig Livingstone,
6 prior to becoming head of the Office of Personnel Security,
7 had had no security experience.
8 MR. GILLIGAN: He said yes.
9 THE REPORTER: And he answered.
10 But not dealing with FBI events.
11 MR. GILLIGAN: The question is whether he discussed
12 Mr. Livingstone's lack of prior security experience with
13 anyone in the White House, right?
14 MR. KLAYMAN: Yes.
15 Now you're resting on a defense of negligence. And
16 I'm entitled to find out what his concerns were about his lack
17 of experience.
18 MR. GILLIGAN: You're not entitled --
19 MR. KLAYMAN: If you want to withdraw your defense
20 here then --
21 MR. GILLIGAN: You're not allowed --
22 MR. KLAYMAN: -- {inaudible} assert that.
23 MR. GILLIGAN: You can ask him what his personal
24 concerns were. What you can't ask is any conversations he may
25 have had about it with, say, Mr. Foster or Mr. Nussbaum or
200
1 anyone else. Those conversations are privileged.
2 MR. KLAYMAN: I don't want to get into a rhetorical
3 conversation here.
4 MR. GILLIGAN: Heaven forbid.
5 MR. KLAYMAN: No. But just for your consideration,
6 we have here what is a prima facia evidence of a crime,
7 violation of the Privacy Act, materials that were in the
8 possession of the White House that shouldn't have been in the
9 possession of the White House.
10 And even if there were such a privilege, which there
11 is not, particularly given the defenses that you've asserted,
12 he would have to testify to this.
13 Now you're going to make me come all the way back to
14 Little Rock, Arkansas?
15 MR. GILLIGAN: No.
16 MR. KLAYMAN: Well I mean obviously we're going to
17 move for attorneys' fees and costs and other relief.
18 MR. GILLIGAN: Shocking.
19 Mr. Klayman, I told you don't ask about
20 conversations he had that are privileged.
21 He said he knew Craig didn't have prior experience.
22 He said that that concerned him. Now you're asking about
23 conversations he had. Ask him about the facts. Don't ask him
24 about privileged communications.
25 MR. KLAYMAN: I'll take your instruction. I'll ask
201
1 him what I want, but I understand your instruction not to
2 answer it.
3 Certify it.
4 MR. GILLIGAN: Okay.
5 MR. KLAYMAN: Back on the record.
6 MR. GILLIGAN: We were on the record, were we not?
7 MR. KLAYMAN: Well not in terms of the time.
8 MR. GILLIGAN: Yes, we were.
9 MR. KLAYMAN: Not the way we're counting.
10 MR. GILLIGAN: I'm sorry. If you asked privileged
11 questions and I have to take time to object to that, that's
12 off of your clock.
13 BY MR. KLAYMAN:
14 Q What were your concerns?
15 A I was concerned about Craig's inexperience, the fact
16 that he had no formal training in this area.
17 I had concerns also about Craig's personality,
18 whether he was, personality-wise, suited for this job.
19 Q And what concerns did you have about his personality
20 specifically?
21 A Craig is a gregarious sort of a people person. And
22 this was a detail-oriented job. And I did not feel that it
23 might necessarily be a good match.
24 Q In essence you were concerned that Craig might talk
25 about the security information he'd seen?
202
1 A That's not what I said, Mr. Klayman.
2 Q Well in fact --
3 A My concern, Mr. Klayman, was that he was a people
4 person and gregarious, and this is a detail-oriented job.
5 Q You did hear at the White House when you were
6 working there that Craig would sometimes convey to people that
7 he knew things about their background?
8 A Mr. Klayman, I've heard that from press reports
9 after I left the White House. I had no knowledge of that
10 while I was at the White House.
11 Q Given your concerns about his background and his
12 lack of what you perceived to be attention to detail, why is
13 it you didn't supervise him more thoroughly?
14 MR. GILLIGAN: Objection. Mischaracterizes the
15 record.
16 A Mr. Klayman, as we grew into the job I became more
17 comfortable with his abilities and his ability to do the job.
18 Q Are you aware that he was reprimanded by Evelyn
19 Lieberman?
20 A For what?
21 Q Discussing someone's personnel file
22 inappropriately?
23 A I do not recall a conversation with Evelyn Lieberman
24 about that. I simply don't recall that. I'm trying to
25 remember -- I don't recall a conversation with Ms. Lieberman
203
1 about that; no, sir.
2 Q Do you recall a conversation -- do you recall the
3 issue? I didn't ask you about the conversation with
4 Lieberman. I asked do you recall whether or not that
5 happened, that Lieberman reprimanded Livingstone for
6 discussing someone's personnel file inappropriately?
7 MR. GILLIGAN: Objection. Lack of foundation.
8 A I don't recall -- I don't recall that, Mr. Klayman.
9 Q You do recall however that Senator DeConcini, a
10 Democrat, recommended Livingstone be removed from his position
11 and be replaced with a professional such as a Secret Service
12 Agent?
13 MR. GILLIGAN: That's a -- objection, misstates the
14 record, it's irrelevant.
15 Q You recall that, don't you?
16 A I think I learned about that after I left the White
17 House, yes.
18 Q You didn't know about that when you worked at the
19 White House?
20 A I don't believe so. Do you know when that happened?
21 Can you educate me, Mr. Klayman?
22 Q Did you ever discuss Mr. Livingstone's
23 qualifications with Mr. Gary Aldrich?
24 MR. GILLIGAN: Objection to the extent that the
25 question is calling for information that's protected by the
204
1 attorney/client privilege or the deliberative process
2 privilege.
3 And instruct the witness not to answer to the extent
4 that a response would do so.
5 THE WITNESS: You've got to say it again. I
6 couldn't hear the last --
7 MR. KLAYMAN: Did you ever discuss --
8 THE WITNESS: No. I'm talking about what my counsel
9 said.
10 MR. GILLIGAN: I'm objecting to the question to the
11 extent that the answer would reveal matters that are protected
12 from disclosure by the attorney/client privilege or the
13 deliberative process privilege.
14 THE WITNESS: I consider that to be the case.
15 MR. GILLIGAN: Then I instruct you not to answer.
16 MR. KLAYMAN: This has already been discussed on the
17 public record.
18 MR. GILLIGAN: What has been discussed on the public
19 record? Conversations?
20 MR. KLAYMAN: Conversations with Mr. Aldrich. I
21 mean you can instruct him at your own risk, but there's no
22 privilege here.
23 MR. GILLIGAN: What conversations are public record?
24 MR. KLAYMAN: I'm not here to do your job.
25 It's all over the House report.
205
1 MR. GILLIGAN: Conversations between Mr. Aldrich
2 and --
3 MR. KLAYMAN: And Mr. Kennedy.
4 MS. PAXTON: About?
5 MR. KLAYMAN: About Mr. Livingstone's
6 qualifications. MR. GILLIGAN: About his
7 qualifications.
8 I'm not aware of that in the House report.
9 MR. KLAYMAN: It was also discussed at Mr. Kennedy's
10 own deposition, which I'm sure he must have reviewed.
11 MR. GILLIGAN: His conversations with Mr. Aldrich?
12 MR. KLAYMAN: Yeah.
13 MR. GILLIGAN: Conversations.
14 THE WITNESS: I'm sorry, Mr. Klayman. I don't
15 recall that.
16 MR. KLAYMAN: Well if Counsel wants to assert this
17 privilege it's at his own risk.
18 MR. KLAYMAN: Certify it.
19 BY MR. KLAYMAN:
20 Q Have you ever discussed how Mr. Livingstone was
21 hired with anyone?
22 MR. GILLIGAN: Other than his counsel, are you
23 asking that question?
24 MR. KLAYMAN: Yes.
25 THE WITNESS: I testified about that in front of
206
1 Congress.
2 BY MR. KLAYMAN:
3 Q Well testify now, please.
4 A Ask me a question.
5 Q I just did. Have you ever discussed with anyone how
6 Mr. Livingstone was hired?
7 A I just answered you. I testified about that in
8 front of Congress.
9 Q And what do you know about how Mr. Livingstone was
10 hired?
11 A Mr. Livingstone was identified to me as the
12 individual to be considered for the head of the White House
13 Personnel Security Office when I arrived at the White House.
14 Q Right. How was he hired?
15 A I don't know how he came to be in that position,
16 Mr. Klayman.
17 Q He was the right-hand person to Hillary Rodham
18 Clinton, was he not?
19 MR. GAFFNEY: Object to the form. Objection lack of
20 foundation.
21 MR. GILLIGAN: Join in those objections.
22 A Mr. Klayman, not to my knowledge.
23 Q In fact he reported to Mrs. Clinton, correct?
24 MR. GAFFNEY: Objection to the form. Objection
25 lacks foundation.
207
1 MR. GILLIGAN: Join in those objections.
2 A Not to my knowledge, Mr. Klayman.
3 Q In fact she strongly recommended him for that job,
4 did she not?
5 MR. GAFFNEY: Objection to the form. Objection lack
6 of foundation.
7 MR. GILLIGAN: Joined.
8 A Not to my knowledge, Mr. Klayman.
9 Q In fact Mr. Livingstone did what the First Lady told
10 him to do, correct?
11 MR. GAFFNEY: Objection to the form. Objection,
12 lacks foundation.
13 MR. GILLIGAN: Joined.
14 A Not to my knowledge, Mr. Klayman.
15 Q Are you aware of Mr. Livingstone ever visiting the
16 White House residence?
17 A I have no knowledge that he did or did not.
18 Q Have you ever seen Secret Service Waves log showing
19 his entrance into the White House residence?
20 A I have not.
21 Q Do you know of anyone who knows whether or not he
22 visited the White House residence?
23 A Mr. Klayman, if he did I assume someone knows. I do
24 not.
25 Q Are you aware of any -- were you ever invited to
208
1 parties in the White House residence?
2 A Yes. I was.
3 Q Did you ever attend such parties where
4 Mr. Livingstone was present?
5 A I think he may have been present at a Christmas
6 party I attended.
7 Q Is that it?
8 A As far as I know; yes, sir.
9 Q And when did that party take place?
10 A In 1993, I believe.
11 Q Are you aware of him ever going into the White House
12 residence except for that?
13 A I have no knowledge if he did or did not. I don't
14 know.
15 Q Do you have any knowledge of Craig Livingstone ever
16 visiting with Marsha Scott?
17 A I do not know, Mr. Klayman.
18 Q Do you know whether or not the Office of Personnel
19 Security had sign-out sheets for files taken out of that
20 office?
21 A Mr. Klayman, I believe they did. I do not know that
22 for a fact.
23 Q Did you ever see any such sign-out sheets?
24 A I don't think so.
25 Q Did you ask them to have that procedure?
209
1 A Mr. Klayman, I did not, for want of a better word,
2 micro-manage that office.
3 Q In fact you didn't manage it at all, correct?
4 MR. GILLIGAN: Objection. Mischaracterizes the
5 record; it's argumentative. You may answer.
6 A Yes. I managed, Mr. Klayman.
7 Q How did you manage it?
8 A I managed, but not on a day-to-day, micro-management
9 basis, Mr. Klayman.
10 Q Well what did you do in terms of managing it?
11 A Mr. Klayman, I oversaw the process. I've testified
12 about that all day long.
13 Q So you can testify intimately to everything
14 Mr. Livingstone and company in that office did?
15 A That's a mischaracterization of my testimony,
16 Mr. Klayman.
17 Q Do you take responsibility for what Mr. Livingstone
18 did in that office?
19 A Mr. Klayman, I did not micro-manage that office.
20 Q As his superior, do you take responsibility for his
21 actions?
22 MR. GILLIGAN: Objection. Argumentative.
23 A Mr. Klayman, I did not micro-manage that office.
24 Q Do you take responsibility for what Mr. Livingstone
25 did in that office?
210
1 MR. GILLIGAN: Same objection. Also add --
2 Q Yes or no?
3 MR. GILLIGAN: I'm objecting sir.
4 I also add the vagueness of the question as a ground
5 for objection.
6 A Mr. Klayman, I don't think that is susceptible of a
7 yes or no answer.
8 Q You were his superior, correct?
9 A That is correct.
10 Q Therefore you're responsible for his actions,
11 correct?
12 A Mr. Klayman, if he did something wrong or illegal,
13 that would not be true; no, sir.
14 Q Have you ever expressed to him -- have you ever
15 reprimanded him in any way for anything he ever did?
16 A Mr. Klayman, I did the necessary things to make that
17 office run. And I'm sure that over the course of interacting
18 with Craig on the basis that I did, I asked him to do things
19 differently. I cannot recall ever formally reprimanding him,
20 no.
21 Q Did you ever criticize him?
22 A Sure, in the performance of his job duties and in
23 the performance of mine; yes, I did.
24 Q What did you criticize him about?
25 A I can't recall specifics, but --
211
1 Q Can you recall anything?
2 A No. I can't recall specifics. It would not have
3 risen to the formal level of a reprimand, as I testified
4 earlier.
5 Q I'll show you what I'll ask the court reporter to
6 mark as Exhibit 18.
7 {The document referred to was marked for
8 identification as Deposition Exhibit No. 18,
9 and is attached.}
10 Q These are Secret Service WAVE logs, Bate's Nos.
11 4954, is the one I'm referring to. It's on the top page
12 wherein it lists, second entry, a visit by Mr. Livingstone to
13 Potus, to the residence.
14 Is that the White House Christmas party that you're
15 referring to that was attended by you and Mr. Livingstone?
16 A Mr. Klayman, I have no idea.
17 Q Have you ever seen this document before?
18 A No. I have not.
19 Q Did you ever meet any relatives of Mr. Livingstone,
20 such as Regina Livingstone?
21 MR. GILLIGAN: Objection lack of foundation, assumes
22 facts not in evidence.
23 Q Did you ever hear of Regina Livingstone?
24 A Mr. Klayman, I don't think I ever met Craig's
25 relatives, but it's possible that I did. I simply don't
212
1 recall.
2 Q Did you ever meet Mr. Livingstone's mother?
3 A I don't think so.
4 Q I show you what I'll ask the court reporter to mark
5 as Exhibit 19. It was previously marked as Exhibit 13 at the
6 deposition of Mary Anderson on May 7th, 1998.
7 {The document referred to was marked for
8 identification as Deposition Exhibit No. 19,
9 and is attached.}
10 Q They span Bate's Nos. 011727 through and including
11 011753. Have you ever seen this document before?
12 A Mr. Klayman, you've got to give me time to look at
13 it.
14 Q Have you ever seen this document before?
15 A No, sir. I have not.
16 Q Were you aware that such a log was kept by the
17 Office of Personnel Security?
18 A I believe so, yes.
19 Q How did you become aware of that?
20 A Press reports and, as I testified earlier, I
21 believed that they kept such a log.
22 Q But you never asked Livingstone to do that, nor
23 anybody else?
24 A Mr. Klayman, as I testified earlier in response to
25 your question, I didn't micro-manage the office. I expected
213
1 Craig to put the procedures in to keep track of these things.
2 Q Well let's turn to page no. 11731. You see where
3 two lines down starting with -- excuse me -- four lines down,
4 you are listed as an individual who received files from the
5 Office of Personnel Management. See that?
6 A I see my name; yes, sir.
7 Q Do you know who's handwriting that is?
8 A I do not.
9 Q And the dates listed are 12/1/94 -- excuse me --
10 2/1/94, 2/1/94, and 2/7/94. See that?
11 A That is correct.
12 Q What files did you get on those days?
13 MR. GILLIGAN: Objection. {Inaudible} find out
14 whether or not they were current Clinton Administration
15 employees, people who were under consideration for
16 Presidential appointment, but beyond that I'm going to object
17 on grounds of irrelevance --
18 MR. KLAYMAN: You can't give him testimony.
19 MR. GILLIGAN: -- attorney --
20 I'm not. I'm stating --
21 MR. KLAYMAN: You just did.
22 MR. GILLIGAN: -- an objection.
23 Beyond that I will object on grounds of
24 attorney/client privilege, deliberative process privilege, and
25 possibly Presidential communications privilege.
214
1 MR. KLAYMAN: Certify it.
2 And also your objectional speaking objection, which
3 is outrageous.
4 BY MR. KLAYMAN:
5 Q Mr. Kennedy, how can we tell that you didn't get the
6 files of Republicans on those dates? What proof do you have?
7 A Mr. Klayman, what proof do you have that I did?
8 Q The fact that a thousand files from Republicans were
9 at the White House.
10 MR. GILLIGAN: Objection. Mischaracterizes the
11 record.
12 Q Maybe not quite a thousand, but close to a thousand.
13 A Your question is, Mr. Klayman?
14 Q My question is: How can you show me that you didn't
15 get Republican files on those days? Where could I look to
16 confirm that?
17 A Mr. Klayman, whatever this piece of paper is speaks
18 for itself.
19 Q Is there other paper that would disprove the notion
20 that among the thousand or so Republican files that came over
21 improperly, you didn't get some of those files on those days?
22 A Mr. Klayman, I'm telling you I did not. You can
23 take it from there.
24 Q Is there any documentary evidence?
25 A Of what, Mr. Klayman?
215
1 Q Your claim that you never saw Republican files?
2 A Mr. Klayman, my testimony is that I did not receive
3 Republican files other than files that I would have gotten in
4 the normal -- excuse me -- FBI background information with
5 regard to individuals properly going through the clearance
6 process.
7 Q You do concede that in Mr. Livingstone's office
8 there were the files of Republicans that weren't going through
9 the clearance process?
10 A Based on everything that I have learned since this
11 story broke, that happened. I do not have any knowledge
12 contemporaneously with this that those files were there,
13 Mr. Klayman.
14 Q Well how do you know he didn't bring those files up
15 to you and you didn't look at them not knowing what they were?
16 A Mr. Klayman, that is possible. I do not believe
17 that happened.
18 Q Do you know whose handwriting this is?
19 A Mr. Klayman, there's a bunch of different
20 handwritings --
21 Q Well the entry I just read to you with your name on
22 it?
23 A I do not.
24 Q Turn to page 11732, wherein you are listed as a
25 recipient of files from Mr. Livingstone's office on March
216
1 21st, '94, March 21st, 1994, February 22nd, 1994. Do you see
2 that?
3 A I don't see any February on this document.
4 Q Well maybe I'm reading it wrong, but...
5 Do you see the last entry there. It has 22 `94. I
6 don't know what it says in front of that. Maybe it's a three.
7 Does it look like a three to you?
8 A It does to me; yes, sir.
9 Q Now what documentary proof is there in existence to
10 tell me that these weren't Republican files that you got that
11 day?
12 A Mr. Klayman, I do not know all that is out there. I
13 am telling you once again I did not receive files on
14 individuals that were not properly in the clearance process in
15 the performance of my duties.
16 Q Did you ever see the FBI file on James Baker?
17 A Which James Baker?
18 Q The previous Secretary of State, Republican.
19 MR. GILLIGAN: Just a moment.
20 {Reporter's Note: Mr. Gilligan confers with
21 co-counsel outside the hearing of the reporter.}
22 MR. GILLIGAN: The witness may respond to that
23 question.
24 THE WITNESS: Point of clarification. We're talking
25 about the former Secretary of State?
217
1 BY MR. KLAYMAN:
2 Q Correct. Former White House Chief of Staff, former
3 Secretary of the Treasury.
4 A No, I have not seen his background.
5 Q Have you ever seen any file related to James Baker?
6 A Not to my knowledge; no, sir.
7 Q Can't remember?
8 A I do not believe I ever have seen anything related
9 to James Baker.
10 Q Have you ever seen any file related to Marlin
11 Fitzwater.
12 A I do not believe that I have.
13 Q But you're not sure?
14 A I do not recall seeing any such file or any such
15 information.
16 Q Can't remember one way or other?
17 A That's not what I'm saying. I do not recall seeing
18 such a file.
19 Q Can't you just say no?
20 A Mr. Klayman, I acknowledge that you get to ask the
21 questions. I would like for you to acknowledge that I get to
22 answer.
23 Q Well I'm asking yes or no did you see Marlin
24 Fitzwater's file?
25 A I do not recall seeing any information with regard
218
1 to Marlin Fitzwater or James Baker.
2 Q So you won't answer no to either of those questions?
3 A I just did.
4 MR. GILLIGAN: Objection. Argumentative.
5 Q Are you going to give me a simple no?
6 A I do not believe that I saw any such information,
7 Mr. Klayman.
8 Q Will you just say no?
9 MR. GILLIGAN: Objection. Argumentative.
10 A Mr. Klayman, you have my answer to that question.
11 Q You refuse to answer the question with a simple no?
12 MR. GILLIGAN: Objection. Mischaracterizes the
13 record.
14 A I stand by my previous answer, Mr. Klayman.
15 Q So you're refusing to answer the question with a
16 simple no?
17 A I stand by my previous answer. I've answered your
18 question, Mr. Klayman.
19 Q Why won't you just answer my question as to whether
20 or not you'll answer it with a simple no?
21 MR. GILLIGAN: Objection. Argumentative, asked and
22 answered, harassing.
23 A Mr. Klayman, I don't recall seeing any information
24 with regard to those two individuals.
25 Q The question was: Will you answer the question with
219
1 regard to those two individuals by simply answering no?
2 A Mr. Klayman, I've already answered that question. I
3 don't recall seeing any information about those two
4 individuals.
5 Q So you won't answer it with a no.
6 Did you see any information from files concerning
7 Brent Scrowcroft.
8 A I do not believe I have ever seen any information
9 with regard to that individual.
10 Q Same question with regard to Tony Blankley
11 (phonetic)?
12 A I don't believe I have ever seen any information
13 with regard to that individual.
14 Q You won't answer that question with regard to
15 Scrowcroft and Blankley by answering no, will you?
16 A I've already answered that question.
17 Q You won't answer no, correct?
18 A I have already answered that question. I do not
19 believe I have seen any information with regard to either one
20 of those individuals.
21 Q You will not give me the answer no?
22 A I have already answered that question. I do not
23 believe I have seen any information with regard to either of
24 those individuals.
25 Q You won't answer the question.
220
1 MR. GILLIGAN: Comment mischaracterizing the
2 record --
3 Q Now are you aware --
4 MR. GILLIGAN: I'm making a statement on the record.
5 Do not interrupt me.
6 Your comment mischaracterizes the record.
7 Q Have you ever seen or discussed the FBI --
8 MR. KLAYMAN: Strike that.
9 Q Have you ever seen or discussed FBI information
10 concerning Billy Ray Dale?
11 A I received a copy of what I believed to be the
12 request for such information from Mr. Nussbaum, as I
13 previously testified to. Otherwise, I have not seen any
14 information with regard to Billy Dale, other than what's been
15 in the press.
16 Q Mr. Nussbaum sent you a request for his FBI
17 information?
18 MR. GILLIGAN: Objection. Mischaracterizes the
19 record.
20 Q You can respond.
21 A I'd like to refer to one of the documents I produced
22 in responding to your question. I can't remember the exhibit
23 number.
24 MR. KLAYMAN: Do you have another copy of that? We
25 see them scattered around the table.
221
1 MR. GILLIGAN: At the risk of irony, I feel your
2 pain, Mr. Klayman.
3 MR. KLAYMAN: We're in the right place for that,
4 aren't we?
5 MR. GILLIGAN: It's Exhibit 9, I believe, is what
6 we're all looking for here, if we can find it.
7 MR. FITTON: It's a fax --
8 MR. KLAYMAN: Did someone accidently -- here it is.
9 THE WITNESS: What I have seen with regard to
10 Mr. Dale is the document with what I perceive to be a Bate's
11 stamp called CGE 043641.
12 BY MR. KLAYMAN:
13 Q My question was: Did Mr. Nussbaum ask for the FBI
14 information about Mr. Dale?
15 A To my knowledge, no.
16 Q What do you base your knowledge on?
17 A His testimony given before Congress.
18 Q His name is on Exhibit 9, is it not?
19 A His name is on this document with the Bate's stamp I
20 just read off -- Bate's stamp number I just read off.
21 Q How did his name get on that document?
22 A This was a standard form in use by the Office of
23 Counsel to the President. His name is on thousands of such
24 forms.
25 Q He provided his authorization, did he not, to use
222
1 his name on these forms?
2 MR. MAZUR: Object to the form of the question.
3 Q Correct?
4 MR. GILLIGAN: Same objection, contrary to the
5 {inaudible}.
6 A This is standard procedure. It's my understanding
7 that every White House counsel does this.
8 Q Are you aware of any instruction by Mr. Nussbaum not
9 to use his name on such forms?
10 A No, sir; I don't believe such instruction exists.
11 Q And the reason that his name is on that form is
12 because he's the one whose ultimately responsible for
13 requesting information from the FBI, correct?
14 MR. MAZUR: Object to the form of the question.
15 MR. GILLIGAN: Objection. Mischaracterizes the
16 record.
17 A He was counsel to the President. The clearance
18 process is run under the auspices of Counsel to the President
19 as part of that office.
20 Q Based on your knowledge of the duties and
21 responsibilities of the White House Counsel's Office, it's
22 Mr. Nussbaum who's responsible for the requisitioning of FBI
23 information; correct?
24 MR. MAZUR: Object to the form of the question.
25 MR. GILLIGAN: Objection. Argumentative,
223
1 mischaracterizes the record.
2 A Not on a day-to-day basis; no, sir.
3 Q Does anyone --
4 MR. KLAYMAN: Strike that.
5 Q Did anyone in the White House Counsel's Office, when
6 you were there, take responsibility for anything concerning a
7 subordinate?
8 A Yes, Mr. Klayman.
9 Q In what instance?
10 A Every day.
11 Q Give me an example?
12 A We asked our staffs, for example, to come in on
13 time.
14 Q Did anyone assume responsibility in the White House
15 Counsel's Office, when you were there, for foul-ups by
16 subordinates?
17 MR. GILLIGAN: Object to the form, object to the
18 vagueness, object to the relevance.
19 A Yes, Mr. Klayman.
20 Q Can you give me an instance of that?
21 A There were probably hundreds of them; and we're all
22 human beings and make mistakes.
23 Q One concrete example?
24 A I remember one time that I had to ask Edgar Bueno to
25 get more current on his files, his filing.
224
1 Q Well did you take responsibility for his lack of
2 currency?
3 A Yes, I did, because it was slowing the process down.
4 Q How did you take responsibility?
5 A The Counsel's Office was being asked to speed up the
6 process insofar as it related to clearing Presidential
7 appointees so that the process and the staffing of the Federal
8 Government could proceed expeditiously.
9 I told Bernie that to the extent the process wasn't
10 working the way it should, it was my responsibility to try to
11 fix it.
12 Q Is that in writing?
13 A No, sir.
14 Q Have you ever told Bernie or anybody else that it
15 was your responsibility that Craig Livingstone got a hold of
16 about a thousand files concerning Republicans and others from
17 the FBI that he shouldn't have had?
18 A No, sir; I have not.
19 Q Have you ever written a memorandum where you said
20 you were going to vacuum Rose Law Firm files?
21 A A memorandum? No, sir; I have not.
22 Q Notes?
23 A No, sir; I have not.
24 Q You've never said anything to the effect "vacuum"
25 law firm files?
225
1 A No, sir; I have not.
2 Q When you returned to the Rose Law Firm from
3 Washington, did you destroy any documents at the Rose Law
4 Firm?
5 A No, sir; I did not.
6 Q Did you instruct anyone else to destroy documents?
7 A No, sir; I did not.
8 Q Do you know of any documents that were destroyed?
9 A The Rose Law Firm destroys documents routinely in
10 the ordinary course of its business probably every day.
11 Q What are the standards on whether or not Rose
12 destroys documents?
13 MR. GILLIGAN: Object to the relevance.
14 A The standards have to do with the degree and age of
15 the matter at hand.
16 Q Are there written guidelines?
17 A I'm not sure.
18 Q You've never seen any?
19 A There were guidelines in place before I left to go
20 to Washington, and I don't know if they are still in place.
21 Q Have you ever seen the guidelines in writing?
22 A Yes. I have.
23 Q Have you and Craig Livingstone ever discussed FBI
24 files concerning Travel Office employees on the phone?
25 A Would you repeat the question? I lost it.
226
1 Q Did you ever discuss the FBI files obtained of
2 Travel Office employees on the phone with Craig Livingstone?
3 A Mr. Klayman, the FBI background summaries of all
4 White House employees would have been dealt with in the
5 ordinary course. The Travel Office employees would have been
6 handled no differently.
7 I don't believe I ever did, but I'm -- it's possible
8 that I have, not knowing that they were Travel Office
9 employees.
10 Q You were the one at the White House who initially
11 asked the FBI to investigate the Travel Office matter,
12 correct?
13 A No, sir.
14 Q Who was?
15 A No one, as far as I know, asked them to investigate
16 the FBI matter.
17 Q Talking about the Travel Office issue.
18 A So am I.
19 Q You were reprimanded for your contacts with the FBI
20 over the Travel Office matter, were you not?
21 A That is correct.
22 Q Why were you reprimanded?
23 A I suppose someone thought I did something wrong.
24 Q Who reprimanded you?
25 MR. GILLIGAN: Object to the relevance.
227
1 A Mack McLarty, the Chief of Staff at the time.
2 Q Was your reprimand in writing?
3 A I don't know.
4 Q Have you ever seen a reprimand?
5 A No, I have not.
6 Q Did you get a verbal reprimand?
7 A A nationwide reprimand.
8 Q A what?
9 A A nationwide reprimand.
10 Q What's a nationwide reprimand?
11 A It was announced at a press conference, so it was
12 verbal.
13 Q Who announced it?
14 A Mr. McLarty.
15 Q Did you know he was going to announce that reprimand
16 before he announced it?
17 A Yes, I did.
18 Q How did you learn of that?
19 A I was told by Mr. Nussbaum that he was going to.
20 Q And what did Mr. Nussbaum tell you?
21 A Mr. Nussbaum told me that Mr. Nussbaum -- he
22 initially told me that Mr. Nussbaum, Mr. Foster, and myself
23 were going to be reprimanded. He then learned --
24 Q Let's back up. All right, go on, finish your
25 answer. Go on.
228
1 A He then learned that it was to be just me and
2 Mr. Foster.
3 Q Did he say why you were going to be reprimanded?
4 A No. Just that we were going to be reprimanded as a
5 result of the Travel Office matter.
6 Q Did you ask, `What did I do to deserve a reprimand'?
7 A I did not.
8 Q Did you know what you had done to deserve a
9 reprimand?
10 A No, sir. You'd have to ask the ones that
11 reprimanded me.
12 Q And who reprimanded you?
13 A I believe I previously said the Chief of Staff, Mack
14 McLarty.
15 Q When Mr. Mack McLarty reprimanded you at the press
16 conference, did he say why you were being reprimanded?
17 A I don't recall quite how it was phrased at the press
18 conference. I'm sorry, Mr. Klayman.
19 Q What is your understanding of what Mr. McLarty
20 claimed he was reprimanding you for?
21 A It generally had to do with contacts with the FBI
22 and records in the Travel Office matter.
23 Q What aspect of contacting the FBI?
24 A You'd have to ask him, Mr. McLarty, or refer to the
25 White House report. I don't remember specifically what they
229
1 said.
2 Q What contacts did you have with the FBI over the
3 Travel Office matter?
4 A I contacted the FBI in reference to the Travel
5 Office matter.
6 Q Who did you contact at the FBI?
7 A Mr. James Bourke.
8 Q Why did you contact Mr. Bourke?
9 A Because I needed assistance with regard to what
10 ultimately became the Travel Office matter.
11 Q Why was the Travel Office matter put within your
12 purview?
13 A I was asked to deal with it by Mr. Foster.
14 Q And what did Mr. Foster ask you to do specifically?
15 A I need to refer to my counsel for a moment.
16 MR. GILLIGAN: Can we have the question again?
17 What's your understanding of the question?
18 THE WITNESS: My understanding of the question is he
19 wants to know what Mr. Foster asked me to do with regard to
20 the Travel Office.
21 MR. GILLIGAN: Go ahead.
22 THE WITNESS: Mr. Foster asked me to deal with it.
23 BY MR. KLAYMAN:
24 Q Did he say how to deal with it?
25 A No. He asked me to make a plan.
230
1 Q Did he tell you what kind of plan you should make?
2 A No, sir; he did not.
3 Q And what was it that you had to deal with? What was
4 your understanding had occurred?
5 A We had allegations of wrongdoing within the Travel
6 Office.
7 Q And what were those allegations of wrongdoing?
8 A There were allegations of kickbacks, of -- I guess
9 the shorthand phrase for it would be -- sweetheart dealing, of
10 misuse of funds.
11 Q Okay. And where did those allegations come from?
12 A They came from, they came from Catherine Cornelius
13 (phonetic) and David Watkins.
14 Q Did they come directly to you?
15 A No. They came to Mr. Foster.
16 Q Did you ever talk to Mr. Watkins and Katherine
17 Cornelius about these allegations?
18 A I did.
19 Q And what did they tell you directly?
20 A Essentially the same thing that I reported, that
21 there were instances of what they believed to be possible
22 wrongdoing in the Travel Office.
23 Q Did they tell you how they came upon that
24 information?
25 A They did.
231
1 Q They did?
2 A Yes. They did.
3 Q And how did they come upon that?
4 A Katherine Cornelius worked in that office for a
5 period of time, and these were the results of direct
6 observations by her.
7 MR. GILLIGAN: {Inaudible.}
8 Q They also told you that Hillary Clinton wanted the
9 White House Travel Office employees fired, correct?
10 MR. GAFFNEY: Object to the form. Objection, lacks
11 foundation.
12 MR. GILLIGAN: Objection to all these questions
13 concerning --
14 Q You can respond.
15 MR. GILLIGAN: I'm not done stating my objection.
16 It only makes it longer when you interrupt me, Mr. Klayman.
17 Objection to the relevance of all these questions
18 concerning the Travel Office.
19 Q You can respond.
20 MR. GILLIGAN: Yes, you may.
21 A He did not mention Hillary Rodham Clinton to me at
22 all.
23 Q You were aware that Hillary Clinton wanted the
24 Travel Office fired, correct?
25 MR. GAFFNEY: Objection to the form. Objection,
232
1 lacks foundation.
2 MR. GILLIGAN: Joined.
3 A I don't have any such knowledge, Mr. Klayman.
4 Q You are aware that Hillary Clinton instructed
5 Watkins to fire the Travel Office, correct?
6 A I have --
7 MR. GAFFNEY: Objection to the form. Objection,
8 lacks foundation.
9 MR. GILLIGAN: Joined.
10 A I have no such knowledge other than what's been
11 reported in the press, Mr. Klayman.
12 Q And that has been reported in the press, correct?
13 MR. GAFFNEY: Objection to form.
14 A The press reports speak for themselves.
15 Q And you are aware that the reason that Hillary
16 Clinton wanted the Travel Office fired was so she could then
17 hire her friends, correct?
18 MR. GAFFNEY: Objection to form. Objection, lacks
19 foundation.
20 MR. GILLIGAN: Joined.
21 A Mr. Klayman, that's been reported in the press. I
22 regard those as simple allegations.
23 Q Those friends are -- hiring Susan Bloodworth
24 Thomason, correct?
25 A What friends, Mr. Klayman?
233
1 Q Mrs. Clinton's friends.
2 A You need to be more specific. Mrs. Clinton's
3 friends with regard to what?
4 Q Taking over the Travel Office.
5 MR. GAFFNEY: Objection to form. Objection, lacks
6 foundation.
7 MR. GILLIGAN: Joined.
8 A I have no knowledge of that, as I previously
9 testified, Mr. Klayman.
10 Q And in fact you heard it said in the White House
11 when you were there that, `One way we can cover this up is to
12 get these Travel Office people implicated with the FBI;'
13 correct?
14 MR. GILLIGAN: Objection to form. Objection, lacks
15 foundation.
16 A No, Mr. Klayman.
17 MR. KLAYMAN: Ms. Paxton's laughing. Why's that?
18 Is that funny?
19 MR. GILLIGAN: The questions are preposterous,
20 Mr. Klayman. That's what's amusing.
21 MR. KLAYMAN: Didn't come from me.
22 BY MR. KLAYMAN:
23 Q Did you ever pressure anyone for information on the
24 Travel Office employees?
25 MR. GILLIGAN: Object to the vagueness.
234
1 Q You can respond.
2 A Pressure anyone for information with regard to the
3 Travel Office employees? No.
4 Q Including people at the FBI?
5 A No, I did not.
6 Q Are you aware that Special Agent Sculinbrene
7 (phonetic) have stated that you did?
8 A No, I'm not aware that Special Agent Sculinbrene
9 made such a statement.
10 Q What contacts with the FBI were you reprimanded
11 about?
12 A The contacts that are generally described as being
13 part of the Travel Office matter, Mr. Klayman.
14 Q What is it your understanding that you did wrong in
15 contacting the FBI?
16 A Mr. Klayman, I don't think I did anything wrong in
17 contacting the FBI.
18 Q What do other people think you did wrong?
19 A You'd have to ask them, Mr. Klayman.
20 Q So, what, you were the fall guy? Is that what your
21 view is?
22 A Mr. Klayman I didn't -- that phrase has never
23 crossed my lips at all in this deposition.
24 MR. GILLIGAN: Object to the argumentative nature of
25 the question.
235
1 Q Did you ever issue a statement refuting this
2 reprimand by Mr. McLarty?
3 A No, I have not.
4 Q If this reprimand wasn't warranted, why didn't you
5 refute it?
6 MR. GILLIGAN: Objection. Irrelevant,
7 argumentative.
8 A Mr. Klayman, I didn't feel the need to.
9 Q Why didn't you feel the need to?
10 A I simply didn't feel the need to.
11 Q Is the reason you didn't feel the need to was for
12 threat of retaliation?
13 A No, Mr. Klayman.
14 Q Do you fear for your bodily safety?
15 MR. GILLIGAN: Objection to the form.
16 A It's a dangerous world, Mr. Klayman. But, no, I do
17 not fear for my bodily safety with regard to my employment at
18 the White House.
19 Q Well then why didn't you protest being reprimanded
20 when you thought it wasn't warranted?
21 A Mr. Klayman, that was a choice personal to me. I
22 simply did not wish to do it.
23 Q Did you contact the Internal Revenue Service over
24 the Travel Office matter?
25 A I did not.
236
1 Q Did you have any contact with the Internal Revenue
2 Service while you were at the White House?
3 A Yes, I did.
4 Q About what?
5 A The clearance process.
6 Q In what regard?
7 A IRS information is part of the clearance process, as
8 I've previously testified, Mr. Klayman.
9 Q Did you or anyone else at the White House ever send
10 a request to have any individual or entity investigated by the
11 IRS?
12 A Mr. Klayman, we did that as part of the clearance
13 process. Yes, we did.
14 Q Did you ever do that with regard to any person or
15 entity that wasn't subject to the clearance process?
16 A No, I did not.
17 Q Do you know of anyone who did?
18 A No, sir; I do not.
19 Q Are you aware of allegations that this White House
20 has used the IRS to investigate perceived adversaries and
21 material witnesses?
22 MR. GILLIGAN: Objection. Lacks foundation,
23 contrary to the record.
24 A No, sir. I'm unaware of such allegations, even in
25 the press.
237
1 Q You're unaware that over 20 conservative groups have
2 been audited by the IRS?
3 A I'm not aware that any such groups have been audited
4 by the IRS. I have no knowledge of that.
5 Q Are you aware of a --
6 MR. GILLIGAN: Object to the vagueness and --
7 Q -- group called --
8 MR. GILLIGAN: -- lack of foundation.
9 Q Have you ever heard of a group called Western
10 Journalism {inaudible}?
11 A No, sir; I have not.
12 Q Did you ever hear of the Conspiracy Stream of
13 Commerce?
14 A No, sir. I have not heard of the Conspiracy Stream
15 of Commerce.
16 Q Do you know whether any such document was ever
17 prepared by the White House Counsel's Office?
18 A I have no knowledge of it -- whether such document
19 exists or not.
20 MR. GILLIGAN: Object to the vagueness.
21 Q Have you ever met or had contact with Sidney
22 Blumenthal (phonetic)?
23 A I have met Sidney Blumenthal.
24 Q When did you meet him?
25 A I think in 1997.
238
1 Q Under what circumstances?
2 A I ran into him on the sidewalk outside the Old
3 Executive Office Building.
4 Q Did you know him before?
5 A No.
6 Q Then how did you come to meet him?
7 A Well he was simply introduced to me.
8 Q Who introduced you?
9 A He was standing with a group of employees from the
10 Vice President's office. And I simply cannot remember who
11 made the introduction, I'm sorry.
12 Q And what did you discuss with him?
13 A I simply shook his hand and said, "Hello. It's nice
14 to meet you."
15 Q Have you ever had contact with anyone by the name of
16 Jack Paladino?
17 A No, sir; I have not.
18 Q Did you ever hear of him?
19 A From press reports.
20 Q Have you ever had contact with Terry Lenzner
21 (phonetic)?
22 A No; I have not.
23 Q Have you ever spoken with him or met him?
24 A Not to my knowledge. I don't know who he is.
25 Q Anthony Pellicano, you ever had contact with him?
239
1 A Not that I know of.
2 Q Have you ever had contact with Lanny Davis?
3 A No, sir. I don't believe so.
4 Q James Carville?
5 A I have met Mr. Carville before.
6 Q Under what circumstances?
7 A A social meeting in the White House when I was
8 employed there.
9 Q Did you ever deal with him on any matters involving
10 your job at the White House?
11 A No, sir; I don't believe so.
12 Q George Stephanopoulos, have you ever had contact
13 with him?
14 A Yes, I have.
15 Q You ever had contact with him about the FBI files
16 matter?
17 A Don't believe so; no, sir.
18 Q About the Travel Gate matter?
19 A Yes, sir; I did.
20 Q Under what circumstances?
21 A We were both employed by the White House at that
22 time.
23 Q It was Mr. Stephanopoulos who asked the FBI to issue
24 press release claiming that a criminal investigation was
25 occurring of White House Travel Office employees, correct?
240
1 A I don't know.
2 MR. GILLIGAN: Objection. Lack of foundation --
3 Q You can respond.
4 MR. GILLIGAN: -- misstates the record.
5 A I don't know whether he did or did not, Mr. Klayman.
6 Q Was Mr. Stephanopoulos reprimanded while he was at
7 the White House?
8 A I don't know.
9 MR. GILLIGAN: I resurrect my objection to the
10 relevance of questions about the Travel Office.
11 THE VIDEOGRAPHER: Excuse me Mr. Klayman. I really
12 do need to take a break.
13 MR. KLAYMAN: Oh, sorry.
14 THE VIDEOGRAPHER: We're going off the record. The
15 time is 5:20.
16 {Reporter's note: At 5:20 p.m., the reporter was
17 asked to go off the record; the record resumed at 5:22 p.m.}
18 MR. GILLIGAN: Just for the record we count --
19 understanding your objections about what should count and what
20 shouldn't, Mr. Klayman, strictly as far as the clock is
21 concerned, we have 5 hours and 23 minutes elapsed, leaving 37
22 to go on the 6 hours.
23 MR. KLAYMAN: Leaving what?
24 MR. GILLIGAN: 37 minutes.
25 MR. KLAYMAN: Actually, we're amazingly close. We
241
1 have 40.
2 MR. GILLIGAN: I won't dicker over that as long as
3 we stay that close.
4 THE VIDEOGRAPHER: We're back on the record. The
5 time is 5:22 p.m.
6 This is the fourth videotape in the deposition of
7 William Kennedy.
8 I'm Bill Gregg, the videographer from Legal Video &
9 Communications. And we're still on South Arch Street at
10 Hendrix Court Reporting in Little Rock, Arkansas.
11 BY MR. KLAYMAN:
12 Q Referring back to Exhibit 19, Mr. Kennedy, are you
13 aware that there was a gap in this sign-out log that was kept
14 by Mr. Livingstone?
15 A Are you referring to a page on Exhibit 19,
16 Mr. Klayman?
17 Q No page in particular, but just that there was a gap
18 in time. Have you ever heard that?
19 A No. I don't believe that I have.
20 Q I'll show you what I'll have the court reporter to
21 mark as Exhibit 20.
22 {The document referred to was marked for
23 identification as Deposition Exhibit No. 20,
24 and is attached.}
25 Q I'm showing you Exhibit 20. Have you ever seen this
242
1 article before?
2 A I don't believe so.
3 Q Is this --
4 A You need to give me a minute to read it, please.
5 Q All right.
6 MR. GAFFNEY: Mr. Klayman, do you have a date on
7 this article?
8 MR. KLAYMAN: I can't see one on there, but then
9 again I can't see very well.
10 THE WITNESS: I'm letting you know that this is hard
11 to read.
12 BY MR. KLAYMAN:
13 Q It is. But let me just ask you this so we can move
14 along --
15 A Let me do the best I can, Mr. Klayman.
16 Q Look at the headline, okay? Does this refresh your
17 recollection as to whether or not there was a gap in the log
18 of what the Office of Personnel Security kept when files were
19 removed from its office?
20 MR. GILLIGAN: I object to you asking the witness
21 questions about a document he has not had the opportunity to
22 review.
23 Q I just said go on the headline, okay. Does it
24 refresh your recollection?
25 A Mr. Klayman, I feel an obligation to read this, if
243
1 you give me just a minute.
2 Q Well I feel an obligation to move along.
3 MR. KLAYMAN: So I'll withdraw the question.
4 Q I'll show you what I'll ask the court reporter to
5 mark as Exhibit 21.
6 {The document referred to was marked for
7 identification as Deposition Exhibit No. 21,
8 and is attached.}
9 MR. GILLIGAN: Those suitcases are going to be a bit
10 lighter on the way home, aren't they?
11 Do we have an extra one for Tim?
12 Q This is a memorandum with the initials JCS, Jane
13 Sherburne, Privileged, Task List December 13th, 1994. Have
14 you ever seen this document?
15 A Give me a minute to look at it.
16 Q Having reviewed several pages, have you seen this
17 document before?
18 A Please let me finish my review, Mr. Klayman. I'm
19 close to the end.
20 Mr. Klayman, I don't think I've seen this document
21 before.
22 Q Are you aware of a compilation prepared by
23 Ms. Sherburne dealing with various controversies in the
24 Clinton Administration apart from this document?
25 A What do you mean by "compilation"?
244
1 Q Well are you aware -- you know who Ms. Sherburne is;
2 don't you?
3 A Are you referring to Jane Sherburne?
4 Q Yes.
5 A Yes, I am.
6 Q And she was an associate White House counsel,
7 correct?
8 A I believe that was her title. Yes.
9 Q She worked there while you were at the White House,
10 correct?
11 A I think we overlapped briefly.
12 Q And you are aware that she was monitoring the
13 various Clinton controversies, otherwise known as scandals?
14 A I could not testify to what her duties were.
15 Q Well turning your attention to page no. 3. See at
16 the bottom there it says, small i., "Security/Livingstone
17 issues."
18 A These pages are unnumbered on mine.
19 Q I know. But I'm just turning to the third page.
20 There where it says, "Security/Livingstone issues, Debrief
21 Joel, Review Livingstone file, Consult with Randy Turk, and
22 Interview Livingstone?"
23 A Yes. I see that on this document.
24 Q Do you know what was meant by the reference "Debrief
25 Joel"? Is there anybody named Joel that Livingstone was
245
1 working with or that you were working with?
2 MR. GILLIGAN: Objection. Lack of foundation.
3 Q Is that Joel Klein?
4 MR. GILLIGAN: Objection. Lack of foundation, calls
5 for speculation.
6 You may answer, Mr. Kennedy.
7 A I don't know who she's referring to.
8 Q Do you know what she meant by review Livingstone
9 file?
10 A No, sir; I don't.
11 MR. GILLIGAN: Same objection.
12 Q Have you ever heard of Randy Turk?
13 A I think he's an attorney in private practice in
14 Washington.
15 Q Who represents Livingstone, right?
16 A I can't answer that.
17 Q Then it says interview Livingstone?
18 MR. GILLIGAN: Same objection, if it's the same
19 question.
20 A That's what the words say.
21 Q Do you know why that was referred to?
22 A No, sir. I didn't write this document.
23 Q You were at the White House on December 13th, 1994;
24 were you not?
25 A No, I was not.
246
1 Q When did you leave?
2 A As I previously testified, at the end of November
3 1994.
4 Q This was shortly after you left, correct?
5 A When you say "this," you mean when this document was
6 created?
7 Q Yeah.
8 A I don't know --
9 Q The date is December 13th, 1994.
10 A If you tell me that was the date it was created,
11 that's shortly after I left, that date is; yes, sir.
12 Q At the time that you left the White House was it
13 known that Republican FBI files were improperly obtained by
14 the Office of Personnel Security?
15 A Did I know that?
16 Q Yes.
17 A No. I did not.
18 Q Did you know that Republican files that had nothing
19 to do with perspective appointments or hold-overs at the White
20 House had been obtained by the White House for whatever
21 reason?
22 A No, sir. I did not know that.
23 Q Did anyone, to the best of your knowledge?
24 A I don't know that anyone did.
25 Q At the time that you left the White House, did
247
1 anyone say to you, `I think we're going to have a problem with
2 the files that we got from the FBI'?
3 A No, sir; no one did.
4 Q Was that your view?
5 A My view of what, Mr. Klayman?
6 Q That there would some day be a problem with regard
7 to files that were obtained from the FBI, files or summary
8 reports or raw data?
9 A Are we talking -- you're saying when I left the
10 White House?
11 Q Yeah.
12 A No, sir. I was anticipating no problems.
13 Q Have you ever heard anyone talk about the reasons
14 why Vince Foster killed himself?
15 MR. GILLIGAN: Object to the relevance.
16 A I'm not sure how to answer that question,
17 Mr. Klayman. I've been involved with lots of conversations on
18 that topic.
19 Q Did any of those conversations entail what
20 Mr. Foster was doing at the White House? Were those offered
21 as reasons why he killed himself?
22 MR. GILLIGAN: Object to the relevance.
23 A Not with regard to specifics, Mr. Klayman, but with
24 regard to workload and pressure, yes.
25 Q Did you ever hear anyone say he that killed himself
248
1 because of the File Gate -- because of Travel Gate?
2 A No, sir. I've never heard anyone say that.
3 Q Did you ever hear anyone say he killed himself
4 because of FBI files?
5 A No, sir. I've never heard anyone say that.
6 Q Did you ever hear anyone say he killed himself
7 because of tax issues?
8 A No, sir. I've never heard anyone say that.
9 Q Do you ever talk to Hillary Clinton about the death
10 of Vince Foster?
11 A I talked with her briefly about Vince's death, yes.
12 Q And what did she say to you?
13 A We simply commiserated about what a tragic thing it
14 was.
15 Q Did she offer reasons why he may have done it?
16 A No, sir.
17 Q Do you have your own theory as to why he did it?
18 MR. GILLIGAN: Object to the relevance, calls for
19 speculation.
20 Q You can respond.
21 A Mr. Klayman, I don't know why he did it. I don't
22 think anybody knows why anybody, any person, any human being,
23 ever does that. I don't think it's susceptible to such an
24 analysis or arising from a single cause.
25 Q Mr. Foster was a litigator, correct?
249
1 A In private practice he was. Yes.
2 Q An based on your experience, litigators are trained
3 to deal with a great deal of pressure; correct?
4 A It depends on the type of litigation, but generally
5 litigation is a pressure-filled activity.
6 Q And how long had he been practicing litigation
7 before he killed himself?
8 A I couldn't answer that with specificity, but it was
9 a while. He was an experienced litigator.
10 Q Did it strike you as strange that he would kill
11 himself?
12 MR. GILLIGAN: Objection. Argumentative,
13 irrelevant, calls for speculation.
14 A It strikes me as strange that any human being would
15 kill themself (sic), Mr. Klayman.
16 Q Well particularly somebody that was emersed in such
17 a pressure type environment?
18 MR. GILLIGAN: Same objection.
19 A Mr. Klayman, I don't know why Mr. Foster killed
20 himself.
21 Q I'll show you what I'll ask the court reporter to
22 mark as Exhibit 22.
23 {The document referred to was marked for
24 identification as Deposition Exhibit No. 22,
25 and is attached.}
250
1 Q Exhibit 22 are two letters, one is redacted and one
2 is unredacted.
3 The unredacted letter is June 19th, 1993. It's from
4 yourself, Mr. Kennedy, to Joanne Hilty at the Office of the
5 Vice-President.
6 Have you ever seen this document before? They're
7 Bate's Nos. 19665 and 19666.
8 MR. GAFFNEY: Could you read the question back,
9 please?
10 Q I'll just rephrase it. Have you ever seen these
11 documents before?
12 A Yes, I have.
13 Q Did you write these documents?
14 A I did.
15 Q And what do they refer to? Let's just talk about
16 019666, which is the second document. What is this document
17 about? What are you discussing with Ms. Hilty?
18 A Ms. Hilty was requesting background summaries from
19 the FBI. And I am advising her that I have requested the FBI
20 not to provide them.
21 Q Ms. Hilty was requesting those background summaries
22 on behalf of the Vice President?
23 A I'm not sure exactly who she was requesting them
24 for, probably a generic way of saying it was for the Vice
25 President's Office.
251
1 Q And whose background summaries were being requested?
2 A I can't recall; don't know.
3 Q Background summaries of Republicans?
4 A I don't believe so, but cannot recall.
5 Q You don't know one way or the other?
6 A No, sir; I do not.
7 Q Why is it that the Vice President was not entitled
8 to receive these summaries?
9 A That's not the way the process was supposed to work.
10 Q You wrote back that the Vice President couldn't get
11 the summaries, correct?
12 MR. GILLIGAN: Objection. Mischaracterizes --
13 Q That's what the letter says in essence, correct?
14 MR. GILLIGAN: Objection. Mischaracterizes the
15 document.
16 A This document speaks for itself, Mr. Klayman.
17 Q Is that the essence of the document?
18 A This document was not addressed to the Vice
19 President. It was addressed to Ms. Hilty.
20 Q Of his office, correct?
21 A That's where she was evidently employed at the time.
22 Q And what was her job at the time?
23 A I'm not sure I could tell you.
24 Q She was the Vice President's assistant, right?
25 A I'm not -- I couldn't answer that, Mr. Klayman. I'm
252
1 sorry, I don't recall.
2 Q Okay.
3 A I may not have known --
4 Q Now the essence of the document was that the Vice
5 President wasn't going to get these FBI summaries, correct?
6 MR. GILLIGAN: Objection. Mischaracterizes the
7 document.
8 A No, sir. I would not characterize that document --
9 Q All right. So what in essence does this document
10 say? What does it mean?
11 A I'll read it to you, it says, "The FBI has informed
12 me that you have requested copies, at the time of delivery to
13 this office, of background summaries prepared for this
14 Administration. I have instructed the FBI not to do so, for a
15 variety of reasons. Please contact me if you have questions.
16 "In addition, in the future, please direct any
17 requests for SCI code word clearance for persons working in
18 the White House complex to the attention of Office of Counsel
19 to the President, further to my attention, for handling."
20 Q What does SCI code word clearance mean?
21 A It's a level of security clearance dealing with
22 National Security Issues.
23 Q I take that the Vice President's office had
24 requested these FBI summaries, and you found out about it?
25 A I think that's correct. Yes, sir.
253
1 Q The request didn't go to you or to the Office of
2 Counsel to President. It went to somebody else?
3 A It must have gone to the FBI, based on the way this
4 thing is worded.
5 Q Okay. Then you said, "I've instructed the FBI not
6 to do so," that means provide the background summaries, "for a
7 variety of reasons." What were those reasons?
8 A This was not the way the process was supposed to
9 work nor the way that we wanted the process to work.
10 Q How was the process to work?
11 A The process to work was that notwithstanding the
12 fact that they were in the Vice President's office, they were
13 part of the Administration and therefore -- and also with
14 regard to people working in the Complex, they were part of the
15 Complex, employees of the Complex.
16 Q So the Vice President was not to go around the
17 office of Counsel to the President?
18 MR. GILLIGAN: Objection. Mischaracterizes the
19 document.
20 Q You can respond.
21 A I did not discuss anything with the Vice President,
22 Mr. Klayman.
23 Q Was the Vice President's office requesting
24 background summaries on Chinese people?
25 A I don't know, Mr. Klayman, I cannot recall. At the
254
1 time I wrote this memo I may not have known who's summaries
2 they were requesting.
3 Q Bob Manzanaras, M-a-n-z-a-n-a-r-a-s, Director of
4 National Security Counsel Administration. Who is Bob
5 Manzanaras? Did you know him?
6 A I think I had met him once.
7 Q Did you find out ever what the Vice President's
8 office was looking for?
9 A No, sir; I did not know.
10 Q Did the FBI tell you?
11 A No, sir; they did not. If I recall correctly, they
12 simply said they had the request in.
13 Q Why did they call you rather than just calling the
14 Vice President?
15 A With regard to clearance matters I was their primary
16 contact at the White House.
17 Q You were the main man on that?
18 A With regard to clearance matters I was in charge of
19 the process, as I've previously testified.
20 Q You don't know whether or not the Vice President
21 requested FBI background summaries or raw data on other
22 occasions, other than listed in this letter; do you?
23 A I do not know what the Vice President does on a
24 day-to-day basis, Mr. Klayman.
25 MR. GILLIGAN: Object to the question as
255
1 mischaracterizing the record.
2 Q Now we previously talked about a White House
3 computer called WHO-DB, otherwise known as Big Brother. I
4 think you testified you only heard about that from the press?
5 MR. GILLIGAN: I object to the question as
6 mischaracterizing the record.
7 Q Have you ever heard of that?
8 A A White House computer called what?
9 Q W-H-O-D-B.
10 A A White House computer -- I've not heard of a White
11 House computer referred to as whatever it was that you said.
12 Q Do you know whether or not members of the White
13 House Counsel's Office or other persons in the White House had
14 access to a White House database that stored the names of
15 Democratic Party donors?
16 MR. GILLIGAN: Object to the question as vague and
17 ambiguous, and mischaracterizes the record.
18 Q You can respond.
19 A I'm not sure that when I was at the White House
20 Counsel's Office such a database existed. I think it was
21 being contemplated at the time.
22 Q Who was contemplating it?
23 A I would assume the Chief of Staff's Office, but I do
24 not know.
25 Q What did you learn about this database?
256
1 A Mr. Klayman, I'm sorry, I can't recall. I do not
2 know.
3 Q Do you know whether or not materials from FBI
4 summary reports or raw data were ever loaded onto a White
5 House database?
6 A I do not believe they were. I have no knowledge of
7 that.
8 Q Well you had no knowledge of that occurring when you
9 were with the White House, correct?
10 A Yes, sir. That's correct.
11 Q But you can't vouch what happened after you left in
12 November of '94, can you?
13 A Obviously not.
14 Q So why did you tell me that you don't think that
15 happened?
16 A I was only --
17 MR. GILLIGAN: Objection. Argumentative and
18 harassing.
19 A I was only speaking from my own personal knowledge,
20 Mr. Klayman.
21 Q Have you heard any reports that information from FBI
22 summary reports or raw data were entered onto White House
23 computers?
24 A No, sir.
25 Q Are you aware of statements by Luciene (phonetic)
257
1 Goldberg that Ms. Tripp saw FBI data being loaded onto White
2 House computers?
3 A You mean other than what you just said? No, sir.
4 Q What newspapers do you ordinarily read?
5 MR. GILLIGAN: Objection.
6 A The Arkansas Democrat-Gazette.
7 Q Anything else?
8 A No, sir.
9 Q You don't read the New York Times?
10 A No, sir.
11 Q You don't read the L.A. Times?
12 A No, sir.
13 Q You don't read the Washington Post?
14 A I receive the Washington Post Book World.
15 Q I'll show you what I'll ask the court reporter to --
16 are you aware that Craig Livingstone has previously testified
17 that you hired him?
18 A I think he said that in the Congressional hearing I
19 was party to.
20 Q And he's correct?
21 A I previously testified about my involvement in the
22 hiring of Craig Livingstone.
23 Q Well is he correct or not?
24 A I guess you could say that I had a part in it; yes,
25 sir.
258
1 Q And what part did you have?
2 A As I said, I participated in his being placed in
3 that job.
4 Q Have you ever seen a memorandum written by Agent
5 Sculinbrene quoting Bernard Nussbaum to the effect Bernard
6 Nussbaum, Counsel to the President, advised that he had known
7 the appointee, meaning Craig Livingstone, for the period of
8 time he'd been employed in the New Administration. He had
9 come highly recommended to him by Hillary Clinton, who has
10 known his mother for a longer period of time?
11 A Have I ever seen such a memorandum? No, sir.
12 Q Have you ever heard what I just read in one manner,
13 shape, or form?
14 A There have been press reports to that effect.
15 Q Did Hillary Clinton strongly recommend Craig
16 Livingstone?
17 A I don't know.
18 Q Does Hillary Clinton know Craig Livingstone's
19 mother?
20 A I don't know, Mr. Klayman.
21 Q Did you ever tell Special Agent Sculinbrene that you
22 did not hire Craig Livingstone?
23 A I don't recall discussing Craig Livingstone with
24 Agent Sculinbrene.
25 Q Did you ever tell Special Agent Sculinbrene that you
259
1 didn't want Mr. Livingstone in the job?
2 A I do not recall doing so; no, sir.
3 Q Did you ever tell anybody that?
4 THE WITNESS: We might be drifting into a privileged
5 area.
6 MR. GILLIGAN: Well do you need a moment to discuss
7 that? Why don't we?
8 THE VIDEOGRAPHER: We're going off the record. The
9 time is 5:49.
10 {Reporter's note: At 5:49 p.m., the reporter was
11 asked to go off the record; testimony resumed at 5:57 p.m.}
12 THE WITNESS: I can't remember precisely --
13 THE VIDEOGRAPHER: Wait just a second.
14 We're going back on the record. The time is 5:57.
15 THE WITNESS: I can't remember precisely how the
16 question was phrased. I'm going to state my understanding of
17 it with you, is that it had to do if I ever discussed Craig
18 Livingstone's hiring with anyone in the White House. And the
19 answer is, yes, I discussed it with Mr. Foster and then with
20 Christine Varney.
21 Q What did you discuss with Christine Varney?
22 A Whether or not Craig should stay in the position
23 that he was when I arrived at the White House.
24 Q Did you recommend that he leave?
25 A To Christine Varney I did not, nor did I do so to
260
1 Mr. Foster. But I did express some concerns about Craig as
2 being in that position.
3 Q I'll show you what I'll ask the court reporter to
4 mark as Exhibit 23.
5 {The document referred to was marked for
6 identification as Deposition Exhibit No. 23,
7 and is attached.}
8 Q Three page memorandum from yourself, Craig
9 Livingstone dated February 17th, 1993. Have you seen this
10 document before?
11 A Give me a minute to read it, please sir.
12 I believe I've seen this before, yes.
13 Q Did you prepare this document?
14 A No. It's a memorandum to me from Craig, on its
15 face.
16 Q Do you know how Mr. Livingstone prepared this
17 document?
18 A You mean mechanically how?
19 Q Yes. Where he got the information prepared?
20 A I do not know with particularity; no, sir.
21 I assume the process was much the same as I
22 described earlier. We were trying to learn what we needed to
23 do.
24 Q Well this isn't the proposal. It lists duties, does
25 it not?
261
1 A No. This is one week actually to the day from when
2 I went on the payroll, and we were trying to figure out what
3 we were supposed to do.
4 This is not accurate as to exactly what the process
5 was. This is, you know, one of Craig's first cracks at trying
6 to summarize for me what he had learned to date.
7 Q Did you ever respond to Craig Livingstone in writing
8 telling him that this was not accurate, what's written on
9 February 17th, 1993?
10 A I don't believe that I did in writing; no, sir. If
11 I did, it would be part of the record.
12 Q Do you know of anyone who did?
13 A No, sir. I'm sure we discussed this orally.
14 Q Look at the third page that's 19611 where it says,
15 "This office maintains some 4,700 active files (please see
16 notebook)."
17 Is that true that the Office of Personnel Security
18 maintained 4,700 active files?
19 A I don't know -- that sounds about right for the
20 number of people in the Complex, Mr. Klayman. But I don't
21 know that. I simply couldn't speculate as to whether the
22 number is accurate. I have no reason to doubt this.
23 Q When he referred to "notebook," what was he
24 referring to?
25 A I'm not sure, Mr. Klayman, what he was referring to
262
1 at this point in time.
2 Q On page two, that's 19610, he says under 1, "Serves
3 as primary contact with the FBI." That's accurate, isn't it?
4 A You are on page 019506?
5 Q 019610. Yeah -- 19510 (sic). See where it says at
6 the top the Roman Numeral II, 1, "Serves as primary contact
7 with the FBI." That's accurate, isn't it?
8 A No, sir. It's not accurate.
9 Q Why is it not accurate?
10 A Because he was not the primary contact with the FBI
11 with regard, for example, to the clearance process that I was
12 overviewing.
13 Q You were the primary contact?
14 A With regard to Presidential appointees, yes, sir.
15 Q So Livingstone was not to have contact with the FBI,
16 correct?
17 MR. GILLIGAN: Objection. Mischaracterizes the
18 record.
19 A No, sir; his office was to have contact with the
20 FBI.
21 Q But only if directed by you to make that contact?
22 A No, sir. For example, his office had to initiate
23 the name check for either prospective White House employees or
24 for employees that were holding over.
25 Q That was the totality of his authorization to be in
263
1 contact with the FBI?
2 A No, sir. He then had to gone on and do the rest of
3 the duties of his office, such as to begin to reconstruct the
4 files of hold-over employees, which would also require contact
5 with the FBI.
6 Q And it was in the context of reconstructing the
7 files of hold-over employees that he got his hands onto about
8 a thousand files that he shouldn't have, correct?
9 MR. GILLIGAN: Objection. The question's
10 argumentative --
11 Q You can respond.
12 MR. GILLIGAN: -- misstates the record.
13 Q You can respond.
14 A That's what has been reported and what was testified
15 about in the Congressional hearing that I attended,
16 Mr. Klayman.
17 I don't know exactly how that happened.
18 Q But it happened pursuant to your authorization?
19 MR. GILLIGAN: Objection. Argumentative.
20 Q Correct?
21 A Mr. Klayman, it happened -- if it happened the way
22 that it's been reported to have happened -- it happened as
23 part of the process.
24 Q Did you ever ask Terry Good of the Office of Records
25 Management to deliver files or information to your office?
264
1 A Mr. Klayman, I don't think so. I don't believe so.
2 It's possible. I simply don't think so.
3 Q Did you ever call -- ask Terry Good or anyone in the
4 Office of Records Management to call up information on
5 particular persons or entities?
6 A I don't believe so.
7 Q You are aware that in archiving materials that they
8 classify those materials in their computer systems and scan
9 materials in their computer systems?
10 A Who does?
11 Q Office of Records Management.
12 A No, sir, I am not aware of that.
13 Q Are you aware that the White House Counsel's Office
14 requested information on Linda Tripp, Monica Lewinsky, and
15 Kathleen Willey from the Office of Records Management?
16 A No, sir, I'm not aware of that.
17 Q Are you aware that that request was made by Joel
18 Klein?
19 MR. GILLIGAN: Objection. Mischaracterizes the
20 record.
21 A No, sir, Mr. Klayman, I'm not aware of that.
22 Q Did there come a point in time when you were
23 relieved of certain duties relating to the clearance process
24 and the Office of Personnel Security?
25 A Yes. I was asked to take on other duties, and
265
1 relieved of those duties.
2 Q Who asked you to do that?
3 A Lloyd Cutler.
4 Q And why did Mr. Cutler relieve you of your prior
5 duties?
6 A You'd have to ask him, Mr. Klayman.
7 Q Was it because of your job performance?
8 A Mr. Klayman, I don't know with particularity. You'd
9 have to ask him.
10 Q Do you have any understanding as to why you were
11 relieved of your duties?
12 A I would summarize it as that I was -- I had become
13 in their mind, or in his mind, too controversial for this
14 post.
15 Q And why were you too controversial?
16 MR. GILLIGAN: Objection. Lack of relevance.
17 A Mr. Klayman, you'd have to ask him.
18 Q In effect you were demoted, correct?
19 A I wouldn't characterize it that way, Mr. Klayman.
20 Q Did you ever ask Mr. Marceca to crack open a safe?
21 A No, sir; I have not.
22 Q Did you ever ask Mr. Marceca to open a safe?
23 A No, sir; I have not.
24 Q Did you know Anthony Marceca at the White House?
25 A Yes, sir; I did.
266
1 Q At any time that you worked there were you aware of
2 him having a criminal record?
3 A No, sir. I don't -- no, sir.
4 Q Were you aware of any perceived problems in his
5 past?
6 MR. GILLIGAN: Object to the vagueness and
7 relevance.
8 A I became aware of certain issues in Agent Marceca's
9 background.
10 Q What issues did you become aware of?
11 MR. GILLIGAN: Objection. Relevance,
12 attorney/client privilege, deliberative process privilege,
13 privacy of Mr. Marceca.
14 MR. KLAYMAN: Well he is a party to the case.
15 MR. GILLIGAN: So he is. My objection stands.
16 And I direct the witness not to reveal --
17 MR. MAZUR: He's not a party.
18 MR. KLAYMAN: Well he's being represented by the
19 Clinton Administration.
20 MR. GILLIGAN: You would like him to be a party.
21 Currently he's not having been substituted out by the United
22 States.
23 I direct the witness not to answer any questions
24 about information in Mr. Marceca's FBI background reports.
25 Mr. Videographer, can I have a time check, please?
267
1 THE VIDEOGRAPHER: 6:08 p.m.
2 MR. KLAYMAN: I have two questions.
3 MR. GILLIGAN: Two questions you get, and then we're
4 done.
5 MR. KLAYMAN: All right. Well whatever.
6 MR. GILLIGAN: Subject to your objections. I
7 understand.
8 MR. KLAYMAN: Three questions.
9 BY MR. KLAYMAN:
10 Q Do you know of any time when Mr. --
11 MR. KLAYMAN: Strike that.
12 Q Mr. Livingstone, his having acquired the FBI files
13 of Republicans for whatever reason, was this within the scope
14 of his authority as Director of the Office of Personnel
15 Security?
16 MR. GILLIGAN: Objection to the extent he's calling
17 for a legal conclusion from the witness.
18 You may respond.
19 Q You can respond.
20 A You've got to be more specific, Mr. Klayman, when
21 you say retained the files of Republicans. There may have
22 been Republicans properly in the White House Complex.
23 Q Well my question is this, is that Mr. Livingstone
24 was not authorized to obtain the files of Republicans that
25 were not part of the appointment process or hold-overs;
268
1 correct?
2 A That would be correct; yes, sir.
3 Q And Mr. Nussbaum was not authorized to obtain the
4 files of Republicans that were not part of the appointment
5 process or hold overs, correct?
6 A That's correct also.
7 Q And the same response with regard to Mr. Marceca,
8 correct?
9 A That's correct also.
10 MR. GILLIGAN: That's three questions.
11 MR. KLAYMAN: No further questions.
12 MR. GILLIGAN: Okay. I have a few quick questions
13 for the witness.
14 EXAMINATION
15 BY MR. GILLIGAN:
16 Q Mr. Kennedy, throughout the deposition we have -- or
17 you and Mr. Klayman have used the term "clearance process."
18 Can you tell us, sir, what is your understanding of the term
19 "clearance process"?
20 A Well there were actually two of them, as I tried to
21 make clear. There was a clearance process for people who work
22 inside the White House Complex. Then there was a clearance
23 process for people who were the subject of a Presidential
24 appointment.
25 Q Okay. Now you testified earlier in the day, I
269
1 believe, and correct me if I'm wrong, that you may have seen
2 background summaries on individuals emanating from the Reagan
3 Era.
4 Were these background summary reports that you saw
5 in connection with the clearance process or not in connection
6 with the clearance process?
7 MR. KLAYMAN: Objection. Compound, leading.
8 A They would be in connection with the clearance
9 process.
10 Q Would there have been any not in connection with the
11 clearance process?
12 A No, sir.
13 Q Okay. You referred earlier in the deposition to
14 requesting what we've referred to as raw data from the FBI.
15 Would your request for raw data have been within the context
16 of the clearance process or outside of that?
17 MR. KLAYMAN: Objection. Leading and compound.
18 A It would have been within the clearance process, as
19 part of my duties.
20 Q Did you ever request from the FBI raw data outside
21 the context of the clearance process?
22 MR. KLAYMAN: Objection. Leading.
23 A No, sir; not to my knowledge.
24 Q To your knowledge, did you ever see raw data outside
25 the context of the clearance process?
270
1 MR. KLAYMAN: Same objection.
2 A I would've had no reason for that.
3 Q Okay. Very early in the day you testified about
4 some memoranda related to the clearance process. I believe
5 these were memoranda that you testified you inadvertently took
6 copies of with you when you left the White House.
7 Did any of the individuals referred to in --
8 MR. GILLIGAN: Strike that.
9 Q Insofar as these memoranda related to particular
10 individuals, these relate to individuals who were under
11 consideration for a Presidential appointment?
12 A Yes. That's correct.
13 MR. KLAYMAN: Objection. Leading.
14 Q Were there any that were members of White House
15 staff?
16 A No, sir. Most of this had to do with the
17 Presidential appointments process.
18 Q Were there any individuals that were not part of the
19 clearance process for Presidential appointments?
20 A No, sir.
21 Q Okay. You were asked earlier in the day about
22 conversations you may have had with Special Agent Gary Aldrich
23 regarding Mr. Livingstone's qualifications for the job he held
24 in the White House. Did you in fact ever have any such
25 conversation of that kind with Mr. Aldrich?
271
1 A No, sir. Not that I recall.
2 Q Recall any conversations -- having any conversations
3 with Mr. Aldrich about Craig Livingstone?
4 A I'm certain that in the context -- in the
5 performance of my official duties in dealing with Mr. Aldrich,
6 he probably said, `I've talked to Craig about this,' or `I've
7 talked to Craig about that," but, otherwise, no.
8 Q If I may refer your attention to Exhibit 19 of the
9 deposition, which is the OPS log --
10 THE WITNESS: Somebody's going to have to give me --
11 Thank you.
12 MR. GILLIGAN: Thank you, Mr. Fitton.
13 BY MR. GILLIGAN:
14 Q Okay. If I could direct your attention to the page
15 Bate's stamped 11731.
16 There is -- are you with me?
17 A Yes, I am.
18 Q There is a reference, as we've covered earlier in
19 the deposition, to your receiving files on February 1st,
20 another on February 1st, and another on February 7th, 1994.
21 Mr. Kennedy, do you have any recollection as to
22 whose OPS files you might've received?
23 A I'm sorry. There's no way that I can remember that.
24 Q Okay. Do you have any reason to believe that these
25 were files that were unrelated either to the Presidential
272
1 appointment process or the clearance process of the White
2 House staff?
3 MR. KLAYMAN: Objection.
4 A No, sir.
5 Q Let's turn to page 3 -- I'm sorry, the next page
6 11732, just to add a needed clarification.
7 Again there's reference to you receiving files on
8 March 21st, another on March 21st, and another on March 22nd,
9 1994.
10 Do you have any recollection, sir, as to whose files
11 those may have been?
12 A No, sir. They would've been in some form or fashion
13 or either related to the appointments process or the clearance
14 process for White House employees.
15 Q Okay.
16 MR. KLAYMAN: Objection. Move to strike.
17 Q We've talked about files that were in your office on
18 a table behind your desk. Do you recall that, Mr. Kennedy,
19 earlier in the day?
20 A Yes.
21 Q Were these files related to the clearance process?
22 MR. KLAYMAN: Objection. Leading.
23 A Yes, they were.
24 Q Were there any files that were not related to the
25 clearance process?
273
1 MR. KLAYMAN: Objection. Leading.
2 Q To the best of your knowledge?
3 A Well of course the files -- I mean, what was on the
4 table at any given point in time would change. But only if I
5 happened to have a personal file out for some reason would
6 there be anything unrelated to my job performance there.
7 Q To the extent that we're talking about files related
8 to your job performance, would they have been files outside
9 the context of the clearance process?
10 A Generally, no, sir.
11 MR. KLAYMAN: Objection. Leading. Move to strike.
12 Q At any time during the course of your employment at
13 the White House, do you recall the issue ever arising of the
14 Privacy Act's applicability to the performance of your duties?
15 MR. KLAYMAN: Objection. Leading.
16 A No, I do not -- the issue coming up? No, sir.
17 Q You do not recall that?
18 A What was the time frame again, Mr. Gilligan?
19 Q At any time during your employment at the White
20 House.
21 A I don't remember it coming up specifically; no, sir.
22 Q Referring to your discussions with Mr. Foster and
23 Ms. Varney about Mr. Livingstone, did Mr. Foster express an
24 opinion as to whether or not Mr. Livingstone should be hired
25 permanently for that position, as director of OPS?
274
1 MR. KLAYMAN: Objection. Leading.
2 A He listened to what I had to say. And he said, you
3 know, "Since I think those are valid concerns, I think you
4 need to discuss them with Ms. Varney." But he did not make a
5 decision in that conversation.
6 Q And then you spoke with Ms. Varney?
7 A Yes.
8 Q Okay. And after you spoke with Ms. Varney, was a
9 decision made whether or not to retain Mr. Livingstone
10 permanently in that position?
11 A Yes, it was. I reported back to Mr. Foster what
12 Ms. Varney had to say. And he said, "So be it. Let's go with
13 it."
14 Q All right. Did you discuss this matter with either
15 Mr. Nussbaum or Hillary Rodham Clinton?
16 A I did not discuss anything with regard to Craig
17 Livingstone with Mr. Clinton -- Mrs. Clinton. I apologize.
18 I don't know if Vince discussed it further with
19 Mr. Nussbaum. I did not.
20 Q All right. Focusing then on the first year of the
21 Clinton Administration, sir, how would you describe the
22 magnitude of the workload in the Office of Personnel Security?
23 A Incredible, voluminous.
24 Q And why was that, sir?
25 A We were dealing with a change in Administration, and
275
1 that meant two things which created an incredible workload.
2 The first was, of course, that we had to do, what
3 I'll refer to in a shorthand way, as we had to staff the
4 Federal Government and the Schedule C positions.
5 The President had to appoint people to fill
6 appointments subject -- I mean slots -- subject to
7 Presidential appointment.
8 Then, as we have discussed all day long, we had to
9 recreate the files of hold-over employees in the White House
10 Complex.
11 Q Okay.
12 A And, in addition, clear people who weren't hold-over
13 employees, but were coming in to work in the Complex.
14 Q Okay. During the first year of the Clinton
15 Administration, generally speaking, how many full-time staff
16 were there in the Office of Personnel Security?
17 A In the first year? Three (3).
18 Q To the best of your knowledge, was that a greater or
19 smaller number than the number of staff in the prior
20 Administration?
21 A Smaller.
22 MR. KLAYMAN: Objection. Lacks foundation.
23 A Smaller.
24 Q In your opinion, was there a need for additional
25 staffing in OPS at this time?
276
1 MR. KLAYMAN: Objection. Leading.
2 A Yes. We were understaffed, clearly.
3 Q Did you make efforts to try an obtain additional
4 staff for OPS?
5 A Repeatedly.
6 Q And were you successful?
7 A Full-time equivalents --
8 MR. KLAYMAN: Objection. Leading.
9 A -- no, I was not. Budgetary constraints.
10 Q I'm sorry, sir. Did you say that was because of
11 budgetary constraints?
12 A Budgetary constraints.
13 Q Who first raised with you the idea of detailing
14 Anthony Marceca to the Office of Personnel Security?
15 A Craig Livingstone.
16 Q Okay. And did he explain to you why he wanted a
17 detailee to OPS?
18 A Well his primary reason for recommending Mr. Marceca
19 was that he had expertise in evaluating military background.
20 In addition, he needed help with his workload, which I was
21 aware of.
22 Q Okay. Why was Mr. Marceca's military background
23 useful?
24 A There is a large number of servicemen in the White
25 House Complex. They are evaluated by the Military. The best
277
1 way to say it, the Military conducts its own background
2 checks.
3 The procedures and the results are different from
4 the background checks conducted on civilians. And it was
5 difficult in some cases to understand all the in's and out's
6 of that.
7 And we thought -- Craig thought that Tony's military
8 background would assist in that area and in the area of simply
9 dealing with the military people that we had to deal with.
10 Q Okay. If there were budget constraints, why was it
11 possible to have Mr. Marceca detailed?
12 A He was detailed on what was referred to as a
13 non-reimbursable basis, i.e., he was detailed under standard
14 operating procedures to the White House on a basis where his
15 salary, during a period of that detail, was paid by the agency
16 he came from.
17 Q Which was?
18 A The Department of Defense.
19 Q Okay. Thank you.
20 Did you approve of Mr. Livingstone's request to have
21 Mr. Marceca detailed to OPS?
22 MR. KLAYMAN: Objection. Leading.
23 A Yes, I did.
24 Q Did you discuss the matter of having Mr. Marceca
25 detailed with Bernard Nussbaum?
278
1 MR. KLAYMAN: Objection. Leading.
2 A No, not with specificity. I may have told Bernie
3 that we were trying to get a detailee. I did not discuss Tony
4 Marceca as an individual with Bernie, no.
5 Q What about with the First Lady?
6 A I did not.
7 Q Okay. Did there come a time when Mr. Livingstone
8 requested to have Mr. Marceca's detail extended or renewed,
9 whatever the appropriate term is?
10 A Yes.
11 Q Who first raised the matter of extending
12 Mr. Marceca's detail with you?
13 A Mr. Livingstone.
14 Q Okay. Did either Mr. Nussbaum or the First Lady
15 raise that with you?
16 A They did not.
17 Q Okay.
18 MR. KLAYMAN: I'm going to give you some latitude
19 here, but you're going way beyond the scope of direct. I
20 never got into these issues.
21 MR. GILLIGAN: To quote a legal scholar I know, it's
22 just discovery, Mr. Klayman.
23 MR. KLAYMAN: No, that's not what I've ever said,
24 believe it or not. I'm not the equivalent of a legal scholar;
25 I'm a legal genius.
279
1 A VOICE: I agree with that.
2 MR. GILLIGAN: We have time constraints here of all
3 sorts, Mr. Klayman.
4 MR. KLAYMAN: I'll give you a little more latitude,
5 but not much further.
6 MR. GILLIGAN: Thank you, Mr. Klayman.
7 BY MR. GILLIGAN:
8 Q Why was Mr. Marceca's detail not renewed?
9 A There were in essence two reasons. Reason No. 1 was
10 budgetary. The powers that be on the budget side did not want
11 to pick up the expense of a further detail with him under
12 operating procedures.
13 His first detail, I believe, for 6 months would not
14 cost the White House any money. If you stay beyond that for a
15 second detail, the White House would have to pick up the
16 expense of the salary.
17 Q Okay.
18 A The second reason is his FBI background came in in
19 the normal course, and there were some issues in that
20 background that made me think it was best if he went back to
21 where he was.
22 Q Whose decision was it not to renew the detail?
23 A It was mine.
24 Q Did you discuss that decision with either
25 Mr. Nussbaum or the First Lady?
280
1 A I did not.
2 MR. GILLIGAN: No further questions. Thank you,
3 sir.
4 MR. KLAYMAN: I have a few.
5 EXAMINATION
6 BY MR. KLAYMAN:
7 Q Was there a background check done on Mr. Marceca
8 before he was detailed?
9 A I don't know, Mr. Klayman. I presume one was done
10 by the Military. I don't know for a fact.
11 Q What did Ms. Varney tell you about Craig Livingstone
12 when you talked about his qualifications and keeping him on
13 board?
14 A She told me that he was someone in which she had a
15 lot of confidence, that he had done good work for her in the
16 campaign, that he was a good solid person, that she had
17 confidence in him, and that she thought he would do a good
18 job.
19 Q What did she tell you he had done during the
20 campaign?
21 A I don't believe she got into specifics.
22 Q You subsequently learned that his job was to run the
23 Chicken George operation?
24 MR. GILLIGAN: Objection. Mischaracterizes the
25 record.
281
1 A I don't know what the Chicken George operation is,
2 Mr. Klayman.
3 Q To send people out in chicken suits to follow George
4 Bush.
5 A I have heard press reports that allege that
6 Mr. Livingstone was involved in such operations. I don't
7 think that came up in my interview with Ms. Varney.
8 Q Is it your opinion that that qualified
9 Mr. Livingstone to handle confidential FBI materials?
10 MR. GILLIGAN: Objection. Argumentative,
11 mischaracterizes the record.
12 A That what did, Mr. Klayman?
13 Q Sending people out in chicken suits to trail George
14 Bush.
15 A Mr. Klayman, I don't have knowledge that that
16 happened, so you're just repeating allegations as far as --
17 Q But did Ms. Varney tell you what he was doing?
18 A No, she did not. We did not get into that level of
19 detail.
20 Q You had the authority to make the decision to get
21 rid of Livingstone, didn't you, as his superior?
22 A I guess in theory I could have.
23 Q I'll show you what I'll ask the court reporter to
24 mark as Exhibit 24.
25 {The document referred to was marked for
282
1 identification as Deposition Exhibit No. 24,
2 and is attached.}
3 Q This is a letter from Bill Clinton to Anthony
4 Marceca. Have you ever seen it before?
5 A Just a minute. Let me read it.
6 No, sir; I have not.
7 Q Are you aware of its content -- were you ever aware
8 of its content before today?
9 A No, sir. I've never seen this before.
10 Q Were you aware that Bill Clinton had sung the
11 praises of Anthony Marceca in correspondence or otherwise?
12 MR. GILLIGAN: Objection. Argumentative, asked and
13 answered, mischaracterizes the document, irrelevance.
14 A No, sir. Until you handed me this, I'd never seen
15 this before.
16 Q Those two questions that I was going to ask off the
17 public record, do you want to go on a private record?
18 A I don't understand what you're talking about.
19 MR. GILLIGAN: I think you're talking about the
20 names of his friends and some addresses?
21 Q Address of your ex-wife and the names of your
22 closest friends.
23 A Are we on or off the record?
24 Q We can convert this over to a --
25 A Mr. Klayman, I don't understand the procedures here,
283
1 so I'm --
2 Q I understand.
3 MR. KLAYMAN: Can we go to a sealed record here?
4 And we don't need this on the video.
5 THE VIDEOGRAPHER: Okay. Well then let me --
6 MR. KLAYMAN: And before we turn the video off,
7 however, let me just put on the record my continuing objection
8 that this deposition is not over, it remains open, that an
9 inordinate amount of time was used with regard to
10 inappropriate objections, and in particular the inappropriate
11 objections concerning Mr. Kennedy's conversation with
12 Ms. Tripp -- conversations with Ms. Tripp. And we will be
13 moving for appropriate relief, including re-deposing
14 Mr. Kennedy in Washington D.C., plus attorneys' fees and
15 costs, and any other relief the Court deems appropriate.
16 MR. GILLIGAN: To your standard end-of-the-
17 deposition speech, Mr. Klayman, I incorporate by reference my
18 prior standard end-of-deposition speeches.
19 MR. KLAYMAN: Okay. We can go off the record.
20 THE VIDEOGRAPHER: We're going off the video record.
21 MR. KLAYMAN: We're still on the written record.
22 THE VIDEOGRAPHER: The time is 6:29 p.m.
23 {Reporter's Note: Whereupon, at 6:29 p.m., the
24 video portion of the deposition in the above-named matter was
25 concluded.}
284
1
2
3 C E R T I F I C A T E
4
5 I, Jacqueline C. Marvin, Certified Court Reporter,
6 and a Notary Public in Pulaski County, Arkansas, do hereby
7 certify that the testimony of WILLIAM H. KENNEDY, III,
8 appearing in the preceding pages, was taken by me in oral
9 stenography and was reduced to typewritten form by me or under
10 my supervision, and that the deposition is a true and accurate
11 record of the testimony given by the witness and to the best
12 of my understanding and ability.
13 I am neither counsel for, related to, nor employed
14 by any of the parties to the action in which this deposition
15 was taken, and I am not a relative or employee of any attorney
16 or counsel employed by the parties nor financially interested
17 in the outcome of this action.
18 In witness, I have affixed my notarial seal this
19 20th day of October 1998.
20 __________________________
21 Jacqueline C. Marvin, CCR
22 Certificate No. 296
23 Pulaski County, Arkansas.
24
25 My Commission expires March 1, 2006.
285
WITNESS' SIGNATURE
I, WILLIAM H. KENNEDY, III, the Witness, hereby
certify that I have thoroughly read the transcript of my
deposition taken on the 20th day of October, 1998, and have
made any necessary changes or corrections to make the
transcript a true and accurate accounting of my testimony
given on that day.
___________________
(Signature)
___________________
(Date)
**************************************************************
STATE OF ARKANSAS )
)ss.
COUNTY OF PULASKI )
I, _______________, a Notary Public in and for
_____________ County, Arkansas, do hereby certify that the
above deposition was read, corrected, and signed in my
presence.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this, the
______ day of _____________, 1998.
____________________
Notary Public
My Commission expires:
_____________________