0151
1 MR. HANSEN: May I confer with
2 Mr. Lenzner for a minute?
3 MR. KLAYMAN: Sure.
4 (Discussion off the record.)
5 THE WITNESS: The answer is no. Can I
6 elaborate for just a second?
7 BY MR. KLAYMAN:
8 Q. Sure.
9 A. I have mixed feelings about that because
10 when I was a senior at Harvard there was a
11 fellowship at Oxford for scholars, athletes, and
12 I was nominated for it and Lake was nominated for
13 it and Lake got it and I didn't.
14 Q. And you're still mad at him?
15 A. I am. Because he was a squash player and
16 I was a football player.
17 Q. But you are familiar with the
18 confirmation process recently over
19 Anthony Lake --
20 A. Yes.
21 Q. -- where Congress was requesting his FBI
22 background file? You're aware of that?
0152
1 A. I remember that, yeah.
2 Q. Do you remember the comments that were
3 made by Secretary of Defense Cohen that FBI files
4 contained raw sewage?
5 A. I don't remember that specific comment.
6 Q. Would you agree with that, they do
7 contain sometimes raw sewage, unsubstantiated
8 facts?
9 MR. HANSEN: Objection.
10 BY MR. KLAYMAN:
11 Q. You can respond.
12 A. I would say they contain raw
13 uncorroborated information. I'm not sure I'd use
14 that appellation that he used, but --
15 Q. If, for instance, somebody who -- based
16 on your experience, a Federal employee was being
17 interviewed for a job position, FBI agents went
18 out to interview acquaintances and people that
19 knew that person, and if those acquaintances told
20 the FBI that that person was a homosexual, for
21 instance, based on your experience that person
22 may never find out that, in fact, that
0153
1 information was contained in his FBI background
2 file, correct?
3 MS. GILES: Objection to the form.
4 MR. HANSEN: Objection.
5 BY MR. KLAYMAN:
6 Q. You can respond.
7 MR. HANSEN: Objection. Rule 45, no
8 foundation, calls for speculation --
9 BY MR. KLAYMAN:
10 Q. You can respond.
11 MR. HANSEN: Can I just finish my
12 objection before you break in with, You can
13 respond? I think we'll have an unclear record.
14 You're doing it again.
15 MR. KLAYMAN: Feel free.
16 MR. HANSEN: Okay. If you just would let
17 me finish my objection, put it on the record, you
18 can go ahead and ask questions. But I don't
19 think it's fair to the stenographer to overlap if
20 we can avoid it.
21 You can go ahead, Mr. Lenzner.
22 THE WITNESS: I don't remember what the
0154
1 question was. If somebody alleged that a person
2 was a homosexual, I don't know under current
3 rules. If that person was denied a position, I
4 don't know whether or not he would have a right
5 to appeal that decision to determine what
6 grounds --
7 BY MR. KLAYMAN:
8 Q. I think you lost your train of thought,
9 Mr. Lenzner, no fault of your own. The question
10 was, that employee would never know if someone
11 made that kind of a statement to the FBI that he
12 or she was a homosexual and it could be contained
13 in an FBI file, correct?
14 MR. HANSEN: Objection, calls for
15 speculation.
16 BY MR. KLAYMAN:
17 Q. You can respond.
18 A. I would say the answer is probably, yes,
19 unless it became a matter of controversy at some
20 point. If the person was hired and then later
21 wasn't promoted and claimed that there was
22 something in the file that was unfairly
0155
1 discriminatory, but I would say generally the
2 answer would be, no, they would not know of it.
3 Q. Based on your experience, does a Federal
4 government employee have a right to request his
5 or her FBI background file?
6 MR. HANSEN: Objection, calls for legal
7 conclusion.
8 BY MR. KLAYMAN:
9 Q. In the ordinary course of their
10 employment?
11 MR. HANSEN: Same objection.
12 THE WITNESS: I think under the privacy
13 act -- I better not venture a guess.
14 BY MR. KLAYMAN:
15 Q. Based on what you know today. I'm not
16 asking you for a legal conclusion.
17 A. Well, I would think under the privacy
18 act, yes, the employee could ask for his file.
19 Q. And get the entire file?
20 A. Oh, I don't know about that.
21 Q. Would they get the names of the
22 individuals who made accusations such as I've
0156
1 just described?
2 MR. HANSEN: Objection, calls for legal
3 conclusion and calls for speculation.
4 MS. GILES: Objection.
5 BY MR. KLAYMAN:
6 Q. Based on your knowledge.
7 A. Hopefully not, but I've heard of cases
8 where they -- where names like that have not been
9 redacted.
10 Q. Now FBI background files could be very
11 helpful to anyone doing an investigation of the
12 subject of that file, could they not?
13 MR. HANSEN: Objection.
14 THE WITNESS: Well, it would depend
15 entirely on the purpose of the investigation and
16 it could be entirely irrelevant or it could be --
17 it might be relevant. It would depend entirely
18 on what the purpose of the investigation was,
19 what the goals of the investigation were, what
20 the objectives were.
21 BY MR. KLAYMAN:
22 Q. But you don't know until you see the
0157
1 file, correct?
2 MR. HANSEN: Objection.
3 BY MR. KLAYMAN:
4 Q. It can't be clairvoyant?
5 A. I don't want to quibble with you, but
6 there are cases of, say, commercial fraud that
7 could have occurred years after somebody's
8 employment with the Federal Government where the
9 file would be potentially totally irrelevant.
10 Q. But you don't know until you see it?
11 A. No, if you know --
12 Q. Based on your experience?
13 A. Well, my argument --
14 MR. HANSEN: Wait a second. Objection to
15 the question based on your experience because
16 Mr. Lenzner's testimony is contrary to your
17 question.
18 MR. KLAYMAN: Well, he has seen them.
19 There's no doubt there's a foundation here.
20 MR. HANSEN: No. I think that's --
21 MR. KLAYMAN: He's testified that he has
22 seen them in certain circumstance.
0158
1 THE WITNESS: I've seen a limited number
2 of them, and what I'm saying is if they -- if
3 they contained CV information and information
4 from associates and neighbors and that's the
5 limit of the investigation, I would say somebody
6 who's left the Government and is involved in
7 sophisticated commercial activity it probably
8 wouldn't be worth even looking into the file.
9 BY MR. KLAYMAN:
10 Q. But then again it may contain very
11 valuable information for an investigator,
12 correct?
13 MR. HANSEN: Objection, calls for
14 speculation.
15 THE WITNESS: I would say it's
16 speculative, yeah.
17 BY MR. KLAYMAN:
18 Q. You're saying that it would never contain
19 valuable information under any scenario?
20 MR. HANSEN: Objection, misstatement of
21 prior testimony. Calls for speculation.
22 BY MR. KLAYMAN:
0159
1 Q. Let's say you were hired to investigate a
2 particular individual, any individual, and that
3 individual had worked for the Department of
4 Justice and you wanted to dig up anything you
5 could about that individual, wouldn't it be
6 helpful for you to have that person's background
7 file at the FBI?
8 MR. HANSEN: Objection.
9 THE WITNESS: Well, from an investigative
10 technique you wouldn't want to dig up everything
11 because we have a client who's given us a budget
12 with a focused goal, and, therefore, we would
13 never have an assignment to, quote, "dig up"
14 everything. Indeed our methodology is --
15 MR. HANSEN: The only thing I caution you
16 is of revealing confidential, proprietary trade
17 secret information as to your work. You can go
18 ahead and answer to the extent you don't disclose
19 privileged information.
20 THE WITNESS: Well, let me just see if
21 this can help. Our methodology is to understand
22 what the problem is that we're trying to solve,
0160
1 tell the client how we best think we can help
2 from a factual legal standpoint, and then we get
3 a budget, and the budget confines the
4 investigation. So I don't know of a single case
5 where we ever were told go out and find
6 everything you can about --
7 BY MR. KLAYMAN:
8 Q. You've never been told to go out and
9 investigate this individual, I want all the dirt
10 that you can find on that individual, in your
11 whole career?
12 A. If it was confined to -- if you define
13 dirt as regulatory problems, financial
14 improprieties, fraud, self-dealing, SEC
15 inquiries, yes, somebody might say, I want -- I'm
16 doing -- I'm about to do a joint venture, which,
17 by the way, is a lot of our work, due diligence,
18 and I want to know who this potential investor or
19 acquisition is, we would do a top to bottom
20 inquiry, which I call a regulatory due diligence,
21 to determine whether or not there is something in
22 the company's background or the office's
0161
1 background of a regulatory nature that should
2 give pause to our client to continue his or her
3 relationship with that particular investment.
4 And that would be -- that would not be atypical,
5 go out and do a regulatory profile. And it would
6 vary depending on the size of the transaction.
7 Q. Now you did an investigation for
8 Brown Williamson, did you not? It's been
9 publicly reported.
10 A. We were retained by, I think, two law
11 firms, Chadbourne & Parke and somebody else to
12 work on behalf of Brown Williamson.
13 Q. And who was it that you publicly recorded
14 to investigate?
15 A. It has been reported in the press that we
16 were asked to investigate an individual by the
17 name of Jeffrey Wiegand.
18 Q. Right. Now you were asked, in effect, by
19 those companies to -- by those law firms to dig
20 up any dirt you could find on him, were you not?
21 MR. HANSEN: Objection to the form of the
22 question. And, objection, instruct you not to
0162
1 answer with respect to any of the privileges we
2 previously outlined, work product,
3 attorney-client, and confidential, proprietary
4 information except to the extent that a client
5 has consented to public release.
6 BY MR. KLAYMAN:
7 Q. You can respond.
8 A. Well, I actually believe I'd have to
9 check with the law firms to determine whether or
10 not they wanted me to respond to that question or
11 not.
12 Q. But you didn't have any constraint as to
13 what you could dig up about Jeffrey Wiegand,
14 correct?
15 MR. HANSEN: Objection to the form of the
16 question. Objection, argumentative.
17 BY MR. KLAYMAN:
18 Q. I'm not asking you what they told you,
19 but your actual -- the actual investigation which
20 you undertook was to dig up anything you could
21 find about that guy, correct?
22 MR. HANSEN: Objection to the form of the
0163
1 question. Objection, instruct you not to answer
2 if -- especially if the scope of the assignment
3 is not --
4 THE WITNESS: Let me answer it this way.
5 That investigation was focused on very, very
6 specific items, and I won't go beyond that.
7 BY MR. KLAYMAN:
8 Q. Let's take Jeffrey Wiegand out of it.
9 The reason I mention that is to perhaps refresh
10 your recollection because my simple question was,
11 in the course of your career, haven't you been
12 asked on occasion to dig up any dirt you could
13 find about an individual or individuals?
14 MR. HANSEN: Objection, asked and
15 answered. Objection, argumentative.
16 BY MR. KLAYMAN:
17 Q. I'm not asking with regard to
18 Mr. Wiegand.
19 MR. HANSEN: Objection, asked and
20 answered. Objection, argumentative. You can
21 answer again, Mr. Lenzner.
22 THE WITNESS: Well, as I said earlier, in
0164
1 a due diligence case or in a hostile takeover
2 case --
3 BY MR. KLAYMAN:
4 Q. The question calls for yes or no.
5 MR. HANSEN: Please let him finish his
6 answer, Mr. Klayman.
7 BY MR. KLAYMAN:
8 Q. Can you answer it yes or no and then go
9 on and explain.
10 MR. HANSEN: No. He can answer as he
11 wishes and you can follow up. Please continue
12 with your answer, Mr. Lenzner.
13 MR. KLAYMAN: Certify it.
14 THE WITNESS: In complex financial
15 investigations, be they hostile takeovers or
16 domestic or international due diligence, when a
17 client asks us to look into a person or
18 corporation it is because they want to know --
19 they want a regulatory profile on the individual
20 and the company. They don't care whether the
21 person has a personal idiosyncrasy. They don't
22 care about marital issues, and we don't either.
0165
1 And as a result our focus is always narrow, it's
2 focused, it's reviewed by the client, it's
3 approved by the client, and then a budget is
4 assigned to it.
5 BY MR. KLAYMAN:
6 Q. Are you saying you've never been retained
7 outside of a corporate setting to investigate
8 someone?
9 MR. HANSEN: Objection,
10 mischaracterization.
11 BY MR. KLAYMAN:
12 Q. You can respond.
13 A. I'm not saying that at all.
14 Q. You have, haven't you?
15 A. Sure.
16 Q. And, therefore, you would not have had
17 those limitations just to investigate someone
18 generally, would you?
19 MR. HANSEN: Objection, argumentative.
20 BY MR. KLAYMAN:
21 Q. You didn't have them? I'm not asking for
22 names of people. I'm just saying that in your
0166
1 career haven't you been retained just to dig up
2 whatever you could about particular individuals?
3 MR. HANSEN: Objection, asked and
4 answered. Objection, argumentative.
5 BY MR. KLAYMAN:
6 Q. You can respond.
7 A. I don't believe that we've ever had
8 somebody that told us you have an unlimited
9 budget to go search and investigate for whatever
10 you want to search and investigate for.
11 Q. I didn't ask you whether you had an
12 unlimited budget. I asked whether you've ever
13 gotten an instruction to the effect find out what
14 you can about this guy or this woman. Surely
15 someone has asked you to do that in your 30 years
16 of experience.
17 MR. HANSEN: Objection, asked and
18 answered.
19 THE WITNESS: People have asked us to
20 find out certain things about individuals,
21 corporations, foreign governments, asset
22 searches, fraud investigations, absolutely.
0167
1 BY MR. KLAYMAN:
2 Q. And is it not true that if the target of
3 your investigation had worked for the Federal
4 Bureau of Investigation or the Justice Department
5 it would be extremely helpful to have his or her
6 background file, correct?
7 MR. HANSEN: Objection, asked and
8 answered. Objection, argumentative.
9 BY MR. KLAYMAN:
10 Q. You can respond.
11 MS. GILES: Object to the term
12 "background file" as vague and ambiguous.
13 BY MR. KLAYMAN:
14 Q. You can respond.
15 A. Well, as I said earlier, I think that it
16 would really depend -- it could be wholly
17 academic and irrelevant depending upon the goals
18 of the investigation and the nature of the
19 investigation. My guess in the type of work that
20 we do is that, for the most part, preemployment
21 investigations, for the most part, would be not
22 terribly interesting to us.
0168
1 Q. How about security investigations?
2 MR. HANSEN: Objection, calls for
3 speculation. Objection, no foundation.
4 BY MR. KLAYMAN:
5 Q. You are aware that from time to time
6 people that are in national security positions in
7 the government go through periodic national
8 security investigations, correct? You are aware
9 of that?
10 You can answer.
11 A. Oh, yes.
12 Q. And the FBI is responsible for
13 conducting, given the particular agency, some of
14 those security investigations, correct? You're
15 aware of that?
16 A. I --
17 MR. HANSEN: Objection, calls for
18 speculation.
19 BY MR. KLAYMAN:
20 Q. You can respond.
21 A. I assume that's correct. I don't for a
22 fact.
0169
1 Q. For instance, with regard to the
2 White House, you are aware that the FBI is
3 responsible for conducting the security
4 investigations for White House employees,
5 correct?
6 A. I think that's right.
7 Q. And if you were in charge to investigate
8 a particular person who had worked at the
9 White House, would it not be helpful to you if
10 your assignment was to find anything you could to
11 have that national security investigation filed
12 at the FBI?
13 MR. HANSEN: Objection, asked and
14 answered. Objection, argumentative. Objection,
15 misstates prior to testimony.
16 BY MR. KLAYMAN:
17 Q. You can respond.
18 MS. GILES: And objection to the form of
19 the question as a hypothetical.
20 BY MR. KLAYMAN:
21 Q. You can respond.
22 THE WITNESS: I was going to say myself,
0170
1 it's so hypothetical that I don't think I could
2 give you a cogent answer on that.
3 MR. KLAYMAN: Just let the record
4 reflect, these kinds of objections -- we're not
5 in a trial. You can make your objection as to
6 form. This is discovery. I ask you not to
7 interrupt what I have to say, particularly from
8 Government counsel who really doesn't have a
9 direct interest in this witness. I'd like to be
10 able to move this thing along as quickly as
11 possible.
12 MR. HANSEN: Well, Mr. Klayman, I have a
13 serious doubt about that. But my objections have
14 all been form objections, privilege objections,
15 which must be made. I haven't made a single
16 objection other than those.
17 MR. KLAYMAN: And you are -- you should
18 consult with the rules of evidence because you
19 are entitled to ask these kinds of questions.
20 BY MR. KLAYMAN:
21 Q. Let me ask you the question again and see
22 if we can move this along. If you were in
0171
1 charge, Mr. Lenzner, in conducting an
2 investigation of an individual to find out
3 whatever you could about him or her and that
4 individual had worked at the White House and had
5 gone through FBI security investigations, would
6 it not be helpful to you to have access to that
7 person's FBI file?
8 MR. HANSEN: Objection, asked and
9 answered.
10 THE WITNESS: Well, actually from an
11 investigative technique, it would be much more
12 valuable to have the assessment of colleagues who
13 work with that individual in terms of honesty,
14 competency, reliability, credibility, did that
15 person function affectively in that environment.
16 It would depend, again, on whether we were doing
17 a background vetting for a corporation interested
18 in hiring that person or whether the person was
19 in a complex financial situation with our client
20 or whether there was litigation. Civil
21 litigation support is another part of our
22 services, and, in that regard, my guess is that
0172
1 there would be almost nothing in that file that
2 would be helpful in the civil litigation support
3 environment.
4 BY MR. KLAYMAN:
5 Q. So you're saying to have the FBI security
6 file really wouldn't be that helpful? If you're
7 charge was just find out what you could about
8 that individual --
9 A. I don't even know what --
10 Q. -- it wouldn't be of any help to you?
11 A. Well, I wouldn't -- I don't know
12 exactly --
13 Q. It wouldn't be of any help to you?
14 MR. HANSEN: Look, Mr. Klayman, you can
15 ask questions. You have to let the witness
16 answer the question, then you can ask the next
17 question. You can't argue with the witness.
18 BY MR. KLAYMAN:
19 Q. Yes or no?
20 MR. HANSEN: No. Mr. Klayman, that's
21 not --
22 BY MR. KLAYMAN:
0173
1 Q. Yes or no?
2 MR. HANSEN: Please ask your question.
3 Let Mr. Lenzner answer it.
4 BY MR. KLAYMAN:
5 Q. Yes or no? It wouldn't be of any help to
6 you?
7 MR. HANSEN: Objection, asked and
8 answered. Argumentative.
9 THE WITNESS: I have two responses. One
10 is, I'm not exactly certain what is in -- what is
11 different in the security file than a
12 preemployment background check, so I can't tell
13 you whether it would be useful or not useful.
14 But I'd have to know, first of all, what
15 information was contained in it and I'd have to
16 know the circumstances surrounding the
17 investigation, what the goals and the objectives
18 of the investigation were to tell you, yes, it
19 would be helpful or, no, it wouldn't be helpful.
20 BY MR. KLAYMAN:
21 Q. But you wouldn't know that until you
22 actually had access to the file, would you?
0174
1 A. If I knew generically what was contained
2 in those kinds of file, I might be able to make a
3 decision based on that.
4 Q. I'm not asking you whether it's legal or
5 not --
6 A. I know. I know that.
7 Q. -- for you to have access to that. I'm
8 asking you whether or not it would be helpful in
9 any way to have access to that if you were just
10 in charge to do a general investigation as to
11 somebody's background. Yes or no?
12 MR. HANSEN: Objection, asked and
13 answered.
14 THE WITNESS: My answer is the same. It
15 would be -- if the information contained in that
16 file directly related to the underlying issue of
17 the concern of my client, it would be very
18 helpful. If it didn't, it would be academic.
19 BY MR. KLAYMAN:
20 Q. How long did you work at the U.S.
21 Attorney's Office?
22 A. '67 through -- until I was appointed by
0175
1 Rumsfeld in '69, and I think that was shortly
2 after the President's Inauguration.
3 Q. President Nixon?
4 A. Yes.
5 Q. And what did you do after that, if
6 anything?
7 A. Well, I worked for -- I was director of
8 Legal Services from 1969 to 1970.
9 Q. And why did you leave your job at Legal
10 Services?
11 A. I had a series of conflicts throughout
12 the country with various governors, mayors,
13 farmers, landlords about the legal activities of
14 the 2000 Legal Service lawyers that I was
15 supervising and the litigation that they were
16 bringing against a lot of the people who
17 supported the President. And the complaints that
18 we received from governors and the rest were all
19 communicated to me through people at the
20 White House urging me to make changes in the
21 direction and philosophy and operations of Legal
22 Services. I eventually concluded that to make
0176
1 those changes would be in violation of the
2 statute that established the Office of Economic
3 Opportunity, the Legal Services program, and in
4 November '70, I was terminated.
5 Q. Involuntarily?
6 A. Yes.
7 Q. Fired?
8 A. Terminated.
9 Q. Was that over a dispute concerning the
10 Black Panthers?
11 A. No.
12 Q. Was that something else? You did have a
13 dispute concerning the matter involving the Black
14 Panthers, did you not?
15 A. I didn't.
16 Q. Legal Services, is that under the
17 auspices of a particular government agency or
18 department?
19 A. At the time I worked there?
20 Q. Yes.
21 A. It was under the auspices of the Office
22 of Economic Opportunity.
0177
1 Q. Was that part of the Executive Branch?
2 A. I think it was, yeah.
3 Q. Is your termination notice in your
4 employment file? Was it placed in your
5 employment file, do you know?
6 A. I have no idea.
7 Q. Have you ever requested to see your
8 employment file?
9 A. I never have.
10 Q. You're not concerned that they may have
11 written something that was untrue about why you
12 were terminated from your job at Legal Services?
13 MR. HANSEN: Objection to form.
14 THE WITNESS: Up until today, that never
15 occurred to me.
16 BY MR. KLAYMAN:
17 Q. Now that it occurred to you, are you
18 going to get your file?
19 A. I might ask for it.
20 Q. And why is that?
21 A. Curiosity.
22 Q. Because you wouldn't want something to be
0178
1 written about you that was untrue that remains in
2 a government file, correct?
3 A. Correct.
4 Q. That could be very damaging if ever
5 released?
6 MR. HANSEN: Objection.
7 BY MR. KLAYMAN:
8 Q. Correct?
9 A. Well, there was so much -- this incident
10 is a little -- because there was much publicity
11 about the termination. It was not a quiet
12 departure and the Legal Service community and the
13 American Bar Association blew it up into a major
14 confrontation with the Nixon Administration.
15 And, as a matter of fact, the new Legal Service
16 Corporation came out of that incident. They
17 created, actually, a government-funded
18 corporation to insulate Legal Services from some
19 of the political fights that I went through.
20 Q. Well, the answer to the question was if
21 there's incorrect information, in your view, this
22 could be damaging?
0179
1 A. Well, that would not -- if there was
2 incorrect information, I certainly would not want
3 it disseminated.
4 Q. Do you know what government department
5 Legal Services is under today?
6 A. I think it's a separate corporation.
7 It's like Comsat. It's like Comsat, C O M S A T.
8 Q. Has it ever been administered to by the
9 Department of Justice, do you know?
10 A. No.
11 Q. FBI?
12 A. I'm sorry. Say that again.
13 Q. FBI?
14 A. Administered by them?
15 Q. Yes.
16 A. No.
17 Q. Did you have to undergo any kind of
18 background security check by the FBI when you
19 took your job at the Legal Services Corporation?
20 A. Yes.
21 Q. And what type of background check did
22 they do to the best of your knowledge?
0180
1 A. I think because of my prior clearances it
2 was relatively brief. It couldn't have been too
3 extensive because I was asked to take the job on
4 day one and I think it was a week or two later I
5 was sworn in.
6 Q. To the best of your knowledge did Legal
7 Services piggyback on what the FBI had already
8 done when you were working for the Department of
9 Justice?
10 A. I believe so.
11 Q. Is that the way it generally works?
12 A. Yes, sir, I think that's correct.
13 Q. They get access to the other files?
14 A. Yeah. They may want to update it from
15 the last date.
16 Q. What did you do after you left Legal
17 Services? And tell me what year that was.
18 A. 1970.
19 Q. What, if anything, did you do?
20 A. I became -- I had an office in the -- I
21 did not belong to the firm, but I had an office
22 in the law firm of Paul, Weiss, Rifkind, Wharton
0181
1 & Garrison, and I was working on a specific case
2 for them.
3 Q. What case was that?
4 A. The Harrisburg conspiracy case.
5 Q. And what was that about, just generally?
6 A. It was an indictment of 13 or 12 priests
7 and nuns, including Phillip Berrigan, in a
8 wide -- the allegation was wide ranging
9 conspiracy to destroy draft board records, kidnap
10 Henry Kissinger, and blow up the heating tunnels
11 in Washington. Those were the allegations.
12 Q. And what was Paul, Weiss' role in that,
13 generally speaking?
14 A. Ramsay Clark was the former Attorney
15 General, and he was one of the lead counsel in
16 the defense team.
17 Q. He worked at Paul, Weiss -- he was an
18 attorney at Paul, Weiss at the time?
19 A. Yes, he was.
20 Q. Did you work in conjunction with Federal
21 law enforcement agencies or work as an adversary
22 of them in that period?
0182
1 A. I'd say more as an adversary.
2 Q. Were there ever issues involving FBI
3 files in the context of that case of Mr. Berrigan
4 or others?
5 A. The only question there was whether or
6 not we were given the totality of investigative
7 files that the Bureau had accumulated during a
8 fairly massive investigation by them.
9 Q. So in the context of that case, your
10 defense team requested the FBI files on
11 Mr. Berrigan and others?
12 A. No, no. I'm sorry, I misled you. These
13 were the investigative -- Mr. Berrigan, by the
14 way, was incarcerated at the time. These were
15 the 302s, basically, the investigative memos
16 reflecting who they interviewed, what wire taps
17 were installed, what surveillances were
18 conducted, interviews of informants, that kind of
19 work. I don't believe we ever asked for -- I
20 don't remember asking for his background file.
21 But he was not an employee of the Federal
22 Government obviously.
0183
1 Q. But you may have?
2 A. I doubt it.
3 Q. "You," meaning the team?
4 A. What?
5 Q. "You," meaning the team?
6 A. The team, yeah. We had -- there were six
7 lawyers -- five lawyers in that case.
8 Q. And the 302 reports which you got were in
9 the context of the criminal proceeding?
10 A. Yes.
11 Q. Those 302 reports contained information
12 which were helpful to your team in preparing a
13 defense, correct?
14 A. Yes.
15 Q. At the time of that work at Paul, Weiss,
16 Rifkind were you of counsel or were you just a
17 contractor?
18 A. Just sharing -- just sharing space.
19 Q. And they contracted with you for working
20 there?
21 A. Yes.
22 Q. Did they take advantage of your
0184
1 formidable experience with the Justice
2 Department, Civil Right's Division, and later the
3 U.S. Attorney's Office? Is that why they were
4 interested in working with you?
5 MR. HANSEN: Objection to the form as
6 to --
7 BY MR. KLAYMAN:
8 Q. To the best of your knowledge.
9 MR. HANSEN: As to what someone else
10 intended or thought.
11 BY MR. KLAYMAN:
12 Q. Because of your knowledge of Federal
13 government investigatory techniques?
14 A. I think they were looking for somebody
15 who had had criminal experience, criminal
16 prosecutive experience, but also had trial
17 experience.
18 Q. Did the defense team employ private
19 investigators?
20 A. Yes.
21 Q. Did they ever seek to get access to FBI
22 files?
0185
1 MR. HANSEN: Objection to the form of the
2 question.
3 BY MR. KLAYMAN:
4 Q. You can respond. To the best of your
5 knowledge.
6 MR. HANSEN: To the extent that the
7 question requires you to divulge, either by
8 denying it or answering it affirmatively, what
9 the work product of the lawyers working on that
10 case were, I instruct you not to answer.
11 MS. GILES: Objection to the term "FBI
12 files" as vague and ambiguous.
13 MR. KLAYMAN: You don't know what the FBI
14 is?
15 MS. GILES: Objection to the term "FBI
16 files" as vague and ambiguous.
17 BY MR. KLAYMAN:
18 Q. You can respond.
19 A. Well, I think that -- well, that case is
20 old. I'm a little bit hesitant about discussing
21 the strategy of my co-counsel without at least
22 conferring with him about that.0186
1 Q. Mr. Berrigan is since dead?
2 A. No. Mr. Berrigan is still in jail.
3 Q. He's still in jail?
4 A. But for a different incident.
5 Q. Okay.
6 A. He was acquitted in that case.
7 Q. How long did you work on that case at
8 Paul, Weiss and what did you do after that?
9 A. That case was tried in the spring -- the
10 winter, actually, of '70/'71, and it went into --
11 then the trial went into the spring. And then
12 after that, I was made president of the Center
13 for Law -- for -- Center for Law in Corporate
14 Responsibilities, something like that.
15 Q. Where was that located?
16 A. Here in Washington, D.C.
17 Q. That was a nonprofit?
18 A. That was nonprofit.
19 Q. And you were the president? Who was the
20 chairman at the time?
21 A. The chairman was Jeff Cowan.
22 Q. Cowan? How is that spelled?0187
1 A. C O W A N.
2 Q. And what were your duties and
3 responsibilities?
4 A. We were -- our duties were to identify
5 issues of concern to the public interest and
6 attempt through investigation and/or litigation
7 to focus interests in the public domain on
8 interests that the board felt were important to
9 the public interest.
10 Q. And what were the interests that were
11 important to the public interest?
12 A. At that time?
13 Q. Yes.
14 A. To the best of my recollection it was,
15 believe it or not, campaign financing. The
16 issues -- the primary issues were campaign
17 financing and corporate accountability. Whether
18 corporate boards of directors were responsive
19 enough to shareholder's interests.
20 Q. And how long did you work in this job?
21 A. About eight or nine months.
22 Q. Too docile as a job, is that why you
0188
1 left?
2 MR. HANSEN: Objection.
3 BY MR. KLAYMAN:
4 Q. Not enough action?
5 A. I would rather not comment on --
6 actually, I left because I was asked by Sam Dash
7 to join the Senate Watergate committee.
8 Q. During the time that you were at this
9 particular nonprofit, did you ever engage in
10 conducting any investigations of anyone?
11 A. Yes.
12 Q. Tell us generally.
13 MR. HANSEN: I instruct you with respect
14 to the privilege, work product and
15 confidentiality. If you can answer without
16 breaching any of those privileges, please do so.
17 BY MR. KLAYMAN:
18 Q. Just answer generally first, generically.
19 A. Well, I think we collected information on
20 the size of contributions that went to the
21 Democratic and political -- and Republican
22 parties for the 1972 campaign. We may have
0189
1 looked at specific senatorial financing
2 arrangements as well, and -- there were specific
3 special interest groups that the board was
4 interested in that I was looking at, and I don't
5 remember which ones they were. And we were also
6 attempting to identify issues that the board
7 could seek to raise in proxy statements in
8 companies that the board held shares them.
9 Q. Did you have a legal position at this
10 job?
11 A. I considered what I was doing -- because
12 the whole thing was a ramp up to possible
13 litigation about the issues that they were
14 concerned about. So they would have -- they
15 hired me because of my legal ability.
16 Q. Did you ever work with the FBI during
17 your period there?
18 A. No.
19 Q. Just quickly, how did you gather
20 information about potential donors, about donors
21 to the political parties?
22 A. Well, we would -- there were public
0190
1 records available. We'd go down to the Federal
2 Luncheon's Commission or to State Offices.
3 Q. Okay. And when did you take the job for
4 the Senate Watergate committee that Mr. Dash had
5 offered you?
6 A. April of '73, I think.
7 Q. And what was your position there?
8 A. I was assistant chief counsel.
9 Q. And what were the duties and
10 responsibilities of assistant chief counsel?
11 A. It was originally to sort out -- at the
12 time of the formation of the Senate Watergate
13 committee, the public record was limited to the
14 conviction of the Cubans and Hunt and Liddy, and
15 the question was whether or not there was any
16 knowledge at higher levels anywhere in the
17 government beyond that. There was also
18 newspapers stories that had been written about
19 what was termed "dirty tricks" and so we were
20 subpoenaing community reelect the President
21 records identifying people to be witnesses in
22 originally three areas, the Watergate break-in
0191
1 and cover-up, campaign financing, and -- oh, and
2 there was a thing called -- and dirty tricks.
3 At the beginning of the investigation, I
4 was involved primarily in the break-in and
5 cover-up inquiry, and the senators felt that that
6 would be the most important issue to deal with
7 originally, and once that phase was concluded, we
8 then turned to -- and I did the dirty tricks
9 investigation. Somebody else did campaign
10 finance.
11 Q. You studied how the Nixon Administration
12 carried out its dirty tricks? You investigated
13 that?
14 A. Yes.
15 Q. Did you work with FBI agents in gathering
16 information for that investigation?
17 A. We had access to some FBI reports that
18 had been previously prepared, again, the 302s,
19 but there was no FBI staff assigned to the
20 committee.
21 Q. Did you have access to FBI staff even if
22 it wasn't assigned?
0192
1 A. No.
2 Q. Did the committee work with the FBI?
3 A. No.
4 Q. Did the committee employ investigators?
5 A. Yes.
6 Q. Those were directly employed?
7 A. Yes.
8 Q. And did some of those investigators
9 originally come from the FBI?
10 A. I think they -- the only ones that came
11 from the FBI had retired from the FBI.
12 Q. Right. Well, that's still coming from
13 the FBI.
14 A. Yeah, they were not -- but they were not
15 active at the time they came over with us.
16 Q. And they were retired FBI agents?
17 A. Yes, sir, uh-huh.
18 Q. And you worked closely with them?
19 A. I worked closely with one of them.
20 Q. And what was his name?
21 A. Carmine Balino.
22 Q. Would it be fair to say that during the
0193
1 period that you were at the Senate Watergate
2 committee that you learned more about the
3 investigative techniques of the FBI?
4 A. Oh, I learned --
5 MR. HANSEN: Objection to the form of the
6 question. No foundation.
7 MR. KLAYMAN: It's a fairly benign
8 question, very simple.
9 THE WITNESS: Carmine Balino was a very
10 unique individual. He specialized in forensic
11 accounting. So the answer to your question is,
12 yes, I learned a lot about how the Bureau
13 conducted forensic accounting investigations.
14 BY MR. KLAYMAN:
15 Q. Did you learn a lot about how the Bureau
16 gathered information, generally speaking?
17 A. Not generally speaking. It was pretty
18 much confined to Carmine's area of expertise,
19 which was reconstruction of destroyed records by
20 interviewing witnesses and then putting together
21 charts and graphs that reflected the movement of
22 money through different banks.
0194
1 Q. Did the committee have contact with what
2 was then the Special Counsel, Archibald Cox and
3 then Leon Jaworski? Was there a communication?
4 A. There was very little communication, as I
5 recall, between the two groups.
6 Q. But there was some?
7 A. It was very little. You have to remember
8 that Mr. Cox's first legal effort when he arrived
9 in Washington was to ask the court to throw the
10 senators off the TV cameras, which they didn't
11 appreciate, and so after that they sort of had
12 chilled relationships with them. And I don't
13 remember any constant communications between the
14 two groups.
15 Q. My question, basically, was leading up to
16 whether or not in conjunction with the
17 Independent Counsels, what then was known as
18 Special Counsels, whether they employed, Cox and
19 then Jaworski, FBI agents or whether they had FBI
20 agents working with them and whether you gained
21 additional experience into FBI information
22 gathering techniques by virtue of having a
0195
1 Watergate Senate investigation going on parallel
2 to the Special Counsel investigation?
3 A. That one I would have to say, no, I don't
4 think so.
5 Q. Now when you were on that Senate
6 Whitewater committee, you investigated --
7 A. It's a Watergate committee.
8 Q. Watergate committee. Froydian slip. You
9 investigated a Richard Moore, did you not?
10 A. If I could put that in context. When
11 John Dean agreed to cooperate with us, we made a
12 decision to attempt to corroborate to the extent
13 possible before he testified whether or not he
14 was telling us accurate information. And one of
15 my assignments was to go with a colleague to
16 interview Dick Moore, who Dean had said had been
17 present at a number of meetings where cover-up
18 issues were discussed. So I did go and meet with
19 Mr. Moore and interviewed him. I did not conduct
20 an investigation of Mr. Moore in the sense of
21 conducting an investigation. It was simply an
22 interview actually attempting to determine the
0196
1 credibility of John Dean.
2 Q. Did someone else investigate him?
3 A. Not to my knowledge.
4 Q. There's a recent article that was written
5 called "Mud Wrestling" that appeared in the
6 New York Times, February 26, 1998. Have you ever
7 seen that?
8 A. Who's the author?
9 Q. William Safire?
10 A. Oh, sure. He wrote the same article back
11 in 1973.
12 Q. In that article the paragraph reads, "I
13 remember Lenzner" -- if you want to review this I
14 can give it to you but I'm just trying to refresh
15 your recollection. Born to wealth, captain of
16 the 1960 Harvard football team, Lenzner was one
17 of the young tigers on the Senate Watergate
18 committee. With gleeful savagery, this bully
19 went about one of the Nixon men who was totally
20 clean, Richard Moore, moving a few of us to
21 recall the McCarthy era and, quote, "Have you no
22 sense of decency, sir, at long last," unquote.
0197
1 Moore later served with distinction as Ronald
2 Reagan's Ambassador to Ireland; Lenzner sunk to
3 whatever he does now.
4 Do you have any information or otherwise
5 as to why Mr. Safire would be critical of what
6 you did with regard to Richard Moore?
7 MR. HANSEN: Mr. Klayman, can you make
8 some showing of any possible relevance of what
9 opinion Mr. Safire has about something that
10 happened at Watergate?
11 MR. KLAYMAN: I'm just using -- first of
12 all, I have no interest in characterizing
13 Mr. Safire one way or the another. I'm just
14 referring to this article, which he wrote, and I
15 want to find out why this type of --
16 THE WITNESS: Let me set the record
17 straight.
18 MR. KLAYMAN: -- characterization
19 apparently --
20 THE WITNESS: Let me set the record
21 straight for you. I'll be happy to do that.
22 MR. KLAYMAN: -- emerged at least in the
0198
1 mind of one writer.
2 MR. HANSEN: If you'd like, but this is
3 really harassment.
4 MR. KLAYMAN: What's the basis?
5 THE WITNESS: I'm happy to set the record
6 straight.
7 MR. KLAYMAN: I don't think Mr. Lenzner
8 feels he's harassed. I'm quite polite and quite
9 calm.
10 MR. HANSEN: Oh, you're actually not
11 polite --
12 MR. KLAYMAN: I want to know.
13 MR. HANSEN: You're not calm, and you're
14 harassing him. And the record will show that.
15 MR. KLAYMAN: I'll let the record speak
16 for itself. Thank you, Mr. Hansen.
17 THE WITNESS: You know Mr. Safire when he
18 wrote the article in 1973 had just left the White
19 House. Mr. Moore was -- when I interviewed
20 Mr. Moore and went over the dates and events of
21 Mr. Dean's testimony, he could not remember the
22 meetings. In fact, we had his calendar and he
0199
1 couldn't remember meetings with the President,
2 meetings on very important topics like the Milk
3 Fund Investigation. He was a very normal person
4 but he had a terrible memory, and even with his
5 diary he couldn't -- his memory couldn't be
6 refreshed. And that's what I reported back to
7 Dash.
8 He was then volunteered by the White
9 House as the counter witness to John Dean's
10 testimony to destroy John Dean's credibility, and
11 Sam Dash was supposed to do that
12 cross-examination. And any witness other than
13 the ones we were designated were the ones that
14 Sam was going to do. Then that day, Sam finished
15 John Mitchell's cross-examination, and at lunch
16 he turned to me and said who's doing Moore. And
17 I said you are, and he said, I'm too tired, you
18 do him. So I went running around trying to find
19 his opening statement, which I couldn't get.
20 He came into the hearing room and his
21 memory had been revived, and he testified that --
22 he testified that he was present during these
0200
1 meetings and everything John Dean said was
2 incorrect. And I had no preparation time, and I
3 simply remembered that he couldn't remember any
4 of these meetings before. And I went back
5 through his diary with him, and at one point --
6 and, again, he couldn't remember the meetings.
7 And at one point I said, didn't you tell me the
8 day I interviewed you it was X and now you're
9 saying it was Y, and he said I'll let my answers
10 stand whatever they were, at which point I
11 stopped examining him because I felt that his
12 credibility was destroyed.
13 At that time Senator Ervin turned to me
14 and said, fantastic cross-examination, and it is
15 my belief -- I'm absolutely certain of this, that
16 he was later named as an unindicted
17 coconspirator.
18 BY MR. KLAYMAN:
19 Q. Maybe you should be available to retain
20 for Judicial Watch, Mr. Lenzner. We have the
21 same problem.
22 MR. HANSEN: Mr. Klayman, by my watch