Jun 1, 1998, Vol. 3, No. 37 • By JAY NORDLINGER
IT WAS A VERY STRANGE STRETCH of an already strange deposition. Ten times in a row, Ken Bacon, assistant secretary of defense for public affairs, was asked whether he took responsibility for the release of confidential information from Linda Tripp's security file. And all ten times, he answered, robotically, that he was "aware" of the release but "did nothing to stop it." Bacon at least knew his line. And he made clear that he was unwilling to take the fall for a brewing Clinton scandal.
Bacon was deposed on May 15 by Judicial Watch, the conservative public-interest group that is suing the Clinton administration for a variety of offenses. The group had already deposed Cliff Bernath, Bacon's former deputy, who swore that Bacon had instructed him to release information about Tripp to Jane Mayer, a reporter for the New Yorker. Mayer had learned that Tripp was arrested (on a bogus charge, it later turned out) at the age of 19. What Mayer wanted to know was how Tripp had responded to a question about prior arrests on a Pentagon security form. She called Bacon, a former colleague, to find out. Bacon then discussed the matter with Bernath. And from there, the two stories -- Bacon's and Bernath's -- diverge.
According to Bacon, the Privacy Act was much on his mind when Mayer reached him on the evening of March 12. Could he give her the nugget she desired? Well, that would "hinge on the Privacy Act." He would check into it and let Mayer know. The reporter was on deadline and impatient to have this final bit of evidence for her ambush of Tripp. Then, in Bacon's version, he asked his deputy, Bernath, and one other Pentagon official to find the answers to "two questions": "One, can we get the information? and, two, If we get it, can we release it [under the law]?" He never received an answer to that second question. And he never bothered to ask again. Instead, as Bacon tells it, Bernath said, "Why don't I take it over?" Bacon at first protested, saying that he would handle the matter himself. But then, discovering a busy schedule, he relented. "I didn't see it as an instruction," said Bacon in his deposition. "[Bernath] volunteered it."
So Bernath, in Bacon's account, went off and soon returned with a copy of Tripp's employment-application form, rather than her security form. Bacon, finding this first form "not germane," said, "Maybe we can't get the information," and there let the matter drop. But Bernath persisted, in short order coming up with the specific form that Mayer had mentioned. Bernath then presented this form to Bacon, saying, "I guess we can tell [Mayer] we got the information." Bacon responded, "I guess we can." And after that? "I presume that [Bernath] told her."
But did Bacon direct him to do so? "No," according to Bacon. Then Bernath actually did it on his own? "Yes." And did Bacon suffer a twinge about the law that only hours before had so concerned him? "Looking back on it, I wish I had asked the question about the Privacy Act, but I did not." Nor did he "check with Ms. Tripp or her attorney," which "would have been better." Bernath, in Bacon's recollection, never even told him how it ended up with Mayer. Bernath did troop into Bacon's office to say, "I talked to Jane Mayer," but, otherwise, "he was very cryptic."
Bernath, however, remembers things quite differently. He testified on April 30 that he had been under explicit orders from Bacon to satisfy Mayer's request ("Ken [Bacon] has made clear it's priority," he noted at the time). And he heard no talk about the Privacy Act or any other statute that would prohibit him from making the disclosure. As to whether he acted of his own authority, Bernath was emphatic: "I didn't do it on my own." In his mind, there was nothing the least cryptic about his performance.
Bacon himself, though, was altogether cryptic with his own boss, Secretary Bill Cohen. Preparing the secretary for a CNN appearance on March 15, Bacon said that the New Yorker was reporting "that Linda Tripp had lied on a security form," but neglected to tell him that the public-affairs office had fed the magazine a key part of the story. Later, Cohen was blindsided, and furious about it. At the National Press Club on March 17, he said, "The [personnel] records are supposed to be protected by the privacy rules. . . . Frankly, [the security breach] is a surprise to me. I was not aware of it."