Why Didn't Bacon Get Fried?
NORDLINGER, JAY
Why Didn't Bacon Get Fried? The Pentagon's anti-Tripp leakers get a slap on the wrist, and the Privacy Act a slap in the face. BY JAY NORDLINGER It's just a small matter, in all the Clinton...
...The government should enforce those rights, especially given that it was government people who broke the law...
...Immediately, the State Department's inspector general, Sherman Funk, began an investigation...
...About a year later, Passportgate had something of a reprise, this time featuring appointees in Clinton's own State Department...
...Cohen gave the game away somewhat on Meet the Press, saying of Bacon, "He is now the subject of a major lawsuit...
...It is made for it...
...Defense secretary William Cohen declared on CNN that Tripp was "guilty of a contradiction of the truth," which would be "looked into...
...This is Public Affairs 101...
...A department spokesman, Craig Quigley, described it as "a personal letter to both Mr...
...The rule of law has taken a beating in this administration, not to mention such demands as honesty and trustworthiness...
...In an official statement, Bacon said, "It certainly never occurred to me that the Privacy Act would preclude disclosing how a public figure recorded a public arrest record on a security clearance...
...Only in April 2000 did Justice announce that it would not prosecute...
...After Cohen's non-reprimand, a few Republicans properly cried bloody murder...
...Mayer had an amazingly specific question for him: How had Tripp responded to Question 21, parts a and b, on Form 398...
...This must have been S one of the last acts of Clinton-administration honor...
...He noted that, at the time of the incident, they and others at the Pentagon were under instruction not to release anything concerning Tripp without first consulting department lawyers...
...Colson went to jail for this...
...Remember: Everyone who comes into public affairs is told Privacy Act rules...
...Quigley trotted out another line as well, one that is increasingly becoming the Bacon defense: "You always do a balancing act between the Freedom of Information Act and the Privacy Act...
...This suit may in fact have been on Cohen's mind when he declined to take serious action against his guys...
...attorney with long experience in this area...
...He found that two employees—Joseph Tarver and Mark Schulhof—were stone-cold guilty...
...Instead, Congress demanded that the department investigate Bacon and Bernath—for violating the Privacy Act...
...The second question is, Did Bacon act of his own initiative...
...Well," he replied, "I have already issued the apologies that I have to issue...
...He ordered his deputy, Cliff Bernath, to get Mayer her answer...
...According to the Pentagon, this is not a letter of reprimand...
...Mayer put in a call to Ken Bacon, assistant secretary of defense for public affairs...
...Bacon has steadfastly claimed that he acted entirely on his own, with no order, wink, or nod...
...Mayer says that it was a former wife of Tripp's father...
...Kamen, of course, was being coy here: Fitzgerald was the woman rumored to have had an affair with President Bush...
...Team Clinton had every reason to dig for dirt on Tripp...
...In this letter, Cohen said that his subordinates' actions had been "hasty and ill-considered...
...In November 1993, the department secretary, Warren Christopher, fired Tarver and Schulhof...
...Bernath told the New York Times that Tripp faced the "very serious charge" of lying to the government...
...It was then left to Secretary Cohen to determine a penalty for Bacon and Bernath—if any...
...And here is more, perhaps Bacon's richest utterance to date: "I obviously knew that this was an issue of considerable public concern and that the public had an interest in knowing whether Ms...
...This would have been incomprehensible in any other administration...
...This is ho-hum for the Clinton administration...
...She was seated in a place of honor: the first lady's table...
...Funk told Congress that the pair had engaged in "criminal violations of the Privacy Act provable beyond a reasonable doubt...
...It soon emerged, however, that Tripp's arrest had been the result of a juvenile prank, perpetrated against her...
...Or was he prompted by someone—presumably at the White House—to let fly what appeared to be damaging information...
...And not to punish this conduct is a very serious mistake...
...Incredulous, a reporter said, "So, it's not a letter of reprimand...
...If there's no adverse action—not even a letter that goes into somebody's file— there's no deterrence here...
...The case being clear-cut, it didn't take her long to find that Bacon and Bernath had indeed violated the Privacy Act...
...No," said Quigley...
...The Pentagon's inspector general, Eleanor Hill, duly launched an investigation...
...I don't think that I performed unlawfully," he continued...
...Democrats demanded an independent-counsel investigation...
...When the Bacon-Tripp story first broke, Charles Colson reminded this magazine that it was to a Bacon-style disclosure that he had pleaded guilty, in 1974...
...It was "done very clearly and above board...
...He was an old friend...
...Quigley, like his boss, Bacon, also persisted in the fiction that the leak to Mayer was no big deal—a matter of routine, just business as usual...
...Then, of course, there was Filegate, in which the White House gathered unto its bosom hundreds of Republican FBI files, including Linda Tripp's...
...And now those men—Kenneth Bacon and Clifford Bernath—have escaped with the wispiest slaps on the wrist...
...But this strikes most people familiar with the workings of the Pentagon—and of the Clinton camp generally—as implausible...
...As for her friend Bacon, he has waxed philosophical about his humble -gate: "This is an extremely small part of a large and painful national drama...
...They got one—led by diGenova...
...Any professional in the building will tell you the same thing...
...Moving heaven and earth, and alarming career officers as he went, Bernath delivered—right on time...
...But this was balanced against "the very high quality of the performance that you have otherwise exhibited...
...Said Clinton, in his first press conference as president-elect, "If I catch anybody doing [what the passport-file offenders did], I will fire them the next day...
...Amazingly, Cohen told the press that "there was no attempt to injure Miss Tripp's credibility or her reputation...
...And powerful, even now...
...For their part, Bacon and Bernath are denying any violation of the Privacy Act...
...And the president himself was prompt to release letters from Kathleen Willey—a woman who had accused him of improper sexual conduct—when it was convenient...
...disclosed on Form 398 her 1969 arrest...
...This is exactly the sort of thinking that worries many observers, including Joseph diGenova, a former U.S...
...What he decided to do was write a letter expressing his "disappointment" in the men...
...This assertion is absurd: Form 398 is strictly a Privacy Act document...
...You know how it is at the Pentagon: "A reporter will call with a question or request for data of some sort, and it's provided as best we can...
...The chief recordkeep-er in the White House, Terry Good, testified in a deposition that the White House counsel's office had requested "anything and everything that we might have in our files relating to Linda Tripp...
...The strongest language he used was "serious lapse of judgment...
...Bernath, the junior partner in the enterprise, following orders, although blindly, was similarly unbowed, saying, "My actions were not only legal, but also ethical and correct...
...From the point of view of the White House, Linda Tripp was the major villain...
...In July 1998, she referred the matter to the Justice Department—which then sat on it for almost two full years...
...The most striking thing about the Cohen letter is that it will not even be placed in either Bacon's or Bernath's permanent file...
...A veteran Defense Department hand told us, "Couldn't happen, didn't happen, no way, no how...
...The president and his men have a bit of a history with the Privacy Act...
...Question 21 dealt with arrests and detentions...
...It looked like bad news for Tripp: She had not, in fact, Jay Nordlinger, managing editor of National Review, has written extensively on the Bacon-Tripp scandal for THE WEEKLY STANDARD...
...Each would receive a copy...
...You don't release someone's confidential information—to anyone, much less the media...
...And so he will continue to be held accountable to the legal process...
...Apart from Tripp's lonely lawsuit, this affair has now reached an end...
...Bernath and Mr...
...His presidency hung in the balance...
...His only regret was that he had not "checked this with lawyers...
...Anyone who has ever covered, or tried to cover, the Defense Department will gladly tell you this is rot...
...The failure to punish the leakers would "send a signal to millions of federal civilian and military employees that their private government records can be made public for political purposes, and no one will be held accountable...
...He said that "the law was broken, and nothing is being done about it...
...At a press conference, Bacon was asked whether he would apologize to Tripp...
...Hours before the reporter's deadline, Bernath told her not to worry: "Ken has made clear it's priority...
...If all this didn't begin with Watergate, it was certainly enshrined there...
...It was played on her by her own bosses at the Pentagon...
...You perhaps remember Passportgate...
...In other words, "Don't leave it solely to the victim, who has to pay lawyers and so on, to enforce her rights under the Privacy Act...
...Contemplating this, Dick Morris, the former Clinton adviser, had no choice but to remark, "Generally, it is a good political rule never to say anything that the average 6-year-old knows isn't true...
...Yes, but it is significant nonetheless...
...Says diGenova, "The treatment of Bacon and Bernath suggests that the Privacy Act will be enforceable only in civil lawsuits filed by the victims...
...You won't have to have an inquiry or rigmarole or anything else...
...Linda Tripp was the victim of a dirty, and illegal, trick...
...One of the officials involved, Elizabeth Tam-posi, was dismissed...
...Jane Mayer, the little lady who started this not-so-great war, was recently a guest at a White House state dinner...
...None whatsoever...
...The judge had reduced the charge to one count of loitering, telling her, as she recalled it, that her record would be clear...
...This information was taken in the normal course of the day...
...James Inhofe of Oklahoma accused the Pentagon of "a whitewash and a cover-up...
...Incredibly, the department claimed that there was "no direct evidence upon which to pursue any violation of the Privacy Act...
...Well, what would you call it...
...In March, Jane Mayer, a Clinton-friendly reporter for the New Yorker, acquired what seemed a valuable piece of information: Tripp, as a teenager, had been arrested for larceny...
...Oth-ers—not necessarily full-time conspiracy theorists, either —wonder whether that's the full story...
...A few of them got hold of Bush-administration personnel files and leaked them to Al Kamen of the Washington Post...
...Such a simple notion...
...Says diGenova, "The Bacon thing is a facial and obvious violation of the Privacy Act...
...Bacon quickly swung into action...
...Indeed, the Privacy Act was a post-Watergate reform, intended to check Nixon-ian abuses...
...After Cohen flaked out, one of Tripp's lawyers made a somewhat poignant statement: "Despite Linda Tripp's unpopularity, the law should protect her...
...The Justice Department (developing a pattern) refused to prosecute...
...This was a highly sensitive national-security questionnaire, under the eye of the Privacy Act Branch of the Defense Security Service...
...The contrast with the Bacon-Tripp case—in this last respect—is overwhelming...
...BY JAY NORDLINGER It's just a small matter, in all the Clinton grossness, but it counts...
...Kamen thus had the following story: "Guess whose working file was empty...
...That of very controversial longtime Bush employee Jennifer Fitzgerald...
...Toward the end of the 1992 presidential campaign, it was learned that political appointees in the Bush State Department had rifled through candidate Clinton's passport files and those of his mother...
...First, Who gave Jane Mayer that promising tidbit from Tripp's past...
...The Pentagon, rather sheepishly, dropped its investigation of Tripp...
...Before this little affair slides all the way down the memory hole, recall the essential facts: In January 1998, the Lewinsky scandal exploded on Bill Clinton's head...
...The acting secretary of state, Lawrence Eagleburger, offered to resign over the matter (President Bush refused...
...He didn't specify what those were...
...Said Quigley, "It's an official letter expressing the secretary's disappointment in the judgment" of the two officials...
...It was therefore a matter of urgency to discredit her...
...Meanwhile, Tripp is suing both the Pentagon and the White House for Privacy Act violations and witness intimidation...
...he, like Nixon before him, was on the road to impeachment...
...And Bacon is perpetrating a shameful lie...
...So, the Clinton administration lurches to a close, its players going this way and that, its loose ends being tied up, however unsatisfactorily...
...He had released information from Daniel Ellsberg's FBI file to the Copley Press, at a time when Ellsberg was a defendant in the Pentagon Papers case and a thorn in the Nixon administration's side—the parallels to Tripp are neat...
...Yet two questions hang over it...
...In their attempt to help Mayer nail Tripp, the two men seemed to have nailed themselves...
...Tripp had accurately acknowledged her arrest record...
...Kamen was also able to report that Elizabeth Tam-posi's file included "concerns from very senior State Department types that she was not ready for an assistant secretaryship...
...but it is a reminder of how unlawful and indecent this administration has been...
...Bear this in mind: "Linda Tripp was engaged in a very public dispute with the president...
...This is precisely the kind of circumstance that Congress had in mind when it gave us the Privacy Act...
...the two had worked together at the Wall Street Journal...
...The special prosecutor, Leon Jaworski, rejoiced that Colson's plea had set a precedent: No longer would political appointees so readily smear their foes in this way...
Vol. 5 • June 2000 • No. 37
