Why Didn’t Bacon Get Fried?

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. From the point of view of the White House, Linda Tripp was the major villain. It was therefore a matter of urgency to discredit her. 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. Mayer put in a call to Ken Bacon, assistant secretary of defense for public affairs. He was an old friend; the two had worked together at the Wall Street Journal. Mayer had an amazingly specific question for him: How had Tripp responded to Question 21, parts a and b, on Form 398? This was a highly sensitive national-security questionnaire, under the eye of the Privacy Act Branch of the Defense Security Service; Question 21 dealt with arrests and detentions.

Bacon quickly swung into action. He ordered his deputy, Cliff Bernath, to get Mayer her answer. Hours before the reporter’s deadline, Bernath told her not to worry: “Ken has made clear it’s priority.” Moving heaven and earth, and alarming career officers as he went, Bernath delivered — right on time.

It looked like bad news for Tripp: She had not, in fact, disclosed on Form 398 her 1969 arrest. Bernath told the New York Times that Tripp faced the “very serious charge” of lying to the government. Defense secretary William Cohen declared on CNN that Tripp was “guilty of a contradiction of the truth,” which would be “looked into.” It soon emerged, however, that Tripp’s arrest had been the result of a juvenile prank, perpetrated against her. The judge had reduced the charge to one count of loitering, telling her, as she recalled it, that her record would be clear. The Pentagon, rather sheepishly, dropped its investigation of Tripp. Instead, Congress demanded that the department investigate Bacon and Bernath — for violating the Privacy Act. In their attempt to help Mayer nail Tripp, the two men seemed to have nailed themselves.

The Pentagon’s inspector general, Eleanor Hill, duly launched an investigation. The case being clear-cut, it didn’t take her long to find that Bacon and Bernath had indeed violated the Privacy Act. In July 1998, she referred the matter to the Justice Department — which then sat on it for almost two full years. This would have been incomprehensible in any other administration. Only in April 2000 did Justice announce that it would not prosecute. Incredibly, the department claimed that there was “no direct evidence upon which to pursue any violation of the Privacy Act.”

It was then left to Secretary Cohen to determine a penalty for Bacon and Bernath — if any. What he decided to do was write a letter expressing his “disappointment” in the men. Each would receive a copy. In this letter, Cohen said that his subordinates’ actions had been “hasty and ill-considered.” 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. The strongest language he used was “serious lapse of judgment.” But this was balanced against “the very high quality of the performance that you have otherwise exhibited.” Amazingly, Cohen told the press that “there was no attempt to injure Miss Tripp’s credibility or her reputation.”

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.”

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. According to the Pentagon, this is not a letter of reprimand. A department spokesman, Craig Quigley, described it as “a personal letter to both Mr. Bernath and Mr. Bacon.” Incredulous, a reporter said, “So, it’s not a letter of reprimand?” “No,” said Quigley. “Well, what would you call it?” Said Quigley, “It’s an official letter expressing the secretary’s disappointment in the judgment” of the two officials.

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. “This information was taken in the normal course of the day.” It was “done very clearly and above board.” 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.” Anyone who has ever covered, or tried to cover, the Defense Department will gladly tell you this is rot. 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 assertion is absurd: Form 398 is strictly a Privacy Act document.

After Cohen’s non-reprimand, a few Republicans properly cried bloody murder. Sen. James Inhofe of Oklahoma accused the Pentagon of “a whitewash and a cover-up.” He said that “the law was broken, and nothing is being done about it.” 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.”

For their part, Bacon and Bernath are denying any violation of the Privacy Act. At a press conference, Bacon was asked whether he would apologize to Tripp. “Well,” he replied, “I have already issued the apologies that I have to issue.” (He didn’t specify what those were.) “I don’t think that I performed unlawfully,” he continued. His only regret was that he had not “checked this with lawyers.” 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.” 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. Tripp had accurately acknowledged her arrest record.”

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.”

Meanwhile, Tripp is suing both the Pentagon and the White House for Privacy Act violations and witness intimidation. This suit may in fact have been on Cohen’s mind when he declined to take serious action against his guys. Cohen gave the game away somewhat on Meet the Press, saying of Bacon, “He is now the subject of a major lawsuit. And so he will continue to be held accountable to the legal process.” This is exactly the sort of thinking that worries many observers, including Joseph diGenova, a former U.S. attorney with long experience in this area. Says diGenova, “The treatment of Bacon and Bernath suggests that the Privacy Act will be enforceable only in civil lawsuits filed by the victims. If there’s no adverse action — not even a letter that goes into somebody’s file — there’s no deterrence here. None whatsoever.” 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. The government should enforce those rights, especially given that it was government people who broke the law.”

The president and his men have a bit of a history with the Privacy Act. You perhaps remember Passportgate. 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. Democrats demanded an independent-counsel investigation. They got one — led by diGenova. One of the officials involved, Elizabeth Tamposi, was dismissed. The acting secretary of state, Lawrence Eagleburger, offered to resign over the matter (President Bush refused). 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. You won’t have to have an inquiry or rigmarole or anything else.”

About a year later, Passportgate had something of a reprise, this time featuring appointees in Clinton’s own State Department. A few of them got hold of Bush-administration personnel files and leaked them to Al Kamen of the Washington Post. Kamen thus had the following story: “Guess whose working file was empty? That of very controversial longtime Bush employee Jennifer Fitzgerald.” Kamen, of course, was being coy here: Fitzgerald was the woman rumored to have had an affair with President Bush. Kamen was also able to report that Elizabeth Tamposi’s file included “concerns from very senior State Department types that she was not ready for an assistant secretaryship.”

Immediately, the State Department’s inspector general, Sherman Funk, began an investigation. He found that two employees — Joseph Tarver and Mark Schulhof — were stone-cold guilty. Funk told Congress that the pair had engaged in “criminal violations of the Privacy Act provable beyond a reasonable doubt.” The Justice Department (developing a pattern) refused to prosecute. In November 1993, the department secretary, Warren Christopher, fired Tarver and Schulhof. This must have been one of the last acts of Clinton-administration honor. The contrast with the Bacon-Tripp case — in this last respect — is overwhelming.

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 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.

If all this didn’t begin with Watergate, it was certainly enshrined there. 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. 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. Colson went to jail for this. 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. Indeed, the Privacy Act was a post-Watergate reform, intended to check Nixonian abuses.

Says diGenova, “The Bacon thing is a facial and obvious violation of the Privacy Act. It is made for it.” Bear this in mind: “Linda Tripp was engaged in a very public dispute with the president.” His presidency hung in the balance; he, like Nixon before him, was on the road to impeachment. “This is precisely the kind of circumstance that Congress had in mind when it gave us the Privacy Act. And not to punish this conduct is a very serious mistake.”

Apart from Tripp’s lonely lawsuit, this affair has now reached an end. Yet two questions hang over it. First, Who gave Jane Mayer that promising tidbit from Tripp’s past? Mayer says that it was a former wife of Tripp’s father. Others — not necessarily full-time conspiracy theorists, either — wonder whether that’s the full story. Team Clinton had every reason to dig for dirt on Tripp. The chief recordkeeper 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 second question is, Did Bacon act of his own initiative? Or was he prompted by someone — presumably at the White House — to let fly what appeared to be damaging information? Bacon has stead-fastly claimed that he acted entirely on his own, with no order, wink, or nod. But this strikes most people familiar with the workings of the Pentagon — and of the Clinton camp generally — as implausible. A veteran Defense Department hand told us, “Couldn’t happen, didn’t happen, no way, no how. Remember: Everyone who comes into public affairs is told Privacy Act rules. You don’t release someone’s confidential information — to anyone, much less the media. This is Public Affairs 101. And Bacon is perpetrating a shameful lie. Any professional in the building will tell you the same thing.”

So, the Clinton administration lurches to a close, its players going this way and that, its loose ends being tied up, however unsatisfactorily. Jane Mayer, the little lady who started this not-so-great war, was recently a guest at a White House state dinner. She was seated in a place of honor: the first lady’s table. 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.” Yes, but it is significant nonetheless. The rule of law has taken a beating in this administration, not to mention such demands as honesty and trustworthiness. After Cohen flaked out, one of Tripp’s lawyers made a somewhat poignant statement: “Despite Linda Tripp’s unpopularity, the law should protect her.” Such a simple notion. And powerful, even now.

Jay Nordlinger, managing editor of National Review, has written extensively on the Bacon-Tripp scandal for THE WEEKLY STANDARD.