Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 1 of 232 PageID# 5253 536 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA vs. JEFFREY ALEXANDER STERLING, Defendant. . . . . . . . . . . . . . . . . . . . Criminal No. 1:10cr485 Alexandria, Virginia January 15, 2015 9:30 a.m. TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE VOLUME III APPEARANCES: FOR THE GOVERNMENT: JAMES L. TRUMP, AUSA DENNIS M. FITZPATRICK, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 22314 and ERIC G. OLSHAN, Deputy Chief Public Integrity Section of the Criminal Division United States Department of Justice 1400 New York Avenue, N.W. Suite 12100 Washington, D.C. 20005 FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., ESQ. Law Office of Edward B. MacMahon, Jr. 107 East Washington Street P.O. Box 25 Middleburg, VA 20118 (APPEARANCES CONT'D. ON FOLLOWING PAGE) (Pages 536 - 767) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 2 of 232 PageID# 5254 537 1 APPEARANCES: (Cont'd.) 2 FOR THE DEFENDANT: BARRY J. POLLACK, ESQ. MIA P. HAESSLY, ESQ. Miller & Chevalier Chartered 655 - 15th Street, N.W. Suite 900 Washington, D.C. 20005-5701 CLASSIFIED INFORMATION SECURITY OFFICERS: CHRISTINE E. GUNNING MAURA PETERSON ALSO PRESENT: GERARD FRANCISCO SA ASHLEY HUNT JENNIFER MULLIN, ESQ. OFFICIAL COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR U.S. District Court, Fifth Floor 401 Courthouse Square Alexandria, VA 22314 (703)299-8595 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 3 of 232 PageID# 5255 538 1 I N D E X 2 3 DIRECT CROSS REDIRECT RECROSS WITNESSES ON BEHALF OF THE GOVERNMENT: 4 5 Robert S. (Resumed) 543 616 627 6 Stephen Y. 627 640 646 647 7 William Harlow 650 675 8 Condoleezza Rice, Ph.D. 688 708 9 Denis M. 720 727 10 Thomas H. 731 741 11 Mark L. 746 755 730 760 760 12 EXHIBITS 13 MARKED RECEIVED 14 GOVERNMENT'S: 15 16 17 No. 59 60 75 83 105 736 750 638 734 654 106 107 108 111 112 656 661 663 667 667 113 114 115 133 135 672 671 675 724 724 171 172 766 766 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 4 of 232 PageID# 5256 539 1 EXHIBITS (Cont'd.) 2 MARKED 3 DEFENDANT'S: 4 No. 3 4 RECEIVED 592 684 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 5 of 232 PageID# 5257 540 1 P R O C E E D I N G S 2 (Defendant and Jury present.) 3 THE CLERK: Criminal Case 10-485, United States of 4 America v. Jeffrey Alexander Sterling. 5 note their appearances for the record. 6 7 MR. TRUMP: Jim Trump on behalf of the United States, Your Honor. 8 9 MR. OLSHAN: States. Eric Olshan on behalf of the United Good morning, Your Honor. 10 THE COURT: 11 MR. FITZPATRICK: 12 Would counsel please Good morning. Dennis Fitzpatrick on behalf of the United States. 13 THE COURT: 14 MR. POLLACK: Good morning. Good morning, Your Honor. 15 Pollack on behalf of Mr. Sterling. 16 MR. MAC MAHON: 17 MacMahon on behalf of Mr. Sterling. Good morning, Your Honor. Barry 18 MS. HAESSLY: Good morning, Your Honor. 19 THE COURT: 20 And good morning, ladies and gentlemen. Edward Mia Haessly. Good morning. Again, thank 21 you very much for being here on time. 22 You may get the prize because we usually have at least one 23 juror who runs late, and you-all are being great. 24 I'm sorry it's a bit cold this morning. 25 it will warm up a bit. You're a superb jury. Do the best you can. Hopefully, If you're really Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 6 of 232 PageID# 5258 541 1 uncomfortable and you want to bring coats in until it warms up 2 a bit, let me know, all right? 3 Are we ready to proceed? 4 MR. TRUMP: 5 take up at the bench, Your Honor. 6 7 There's one very brief matter we have to THE COURT: minimum. All right. We want to keep these to a Regular machine? 8 MR. TRUMP: Yes, Your Honor. 9 (Bench conference on the record.) 10 THE COURT: Yes, Mr. Trump? 11 MR. TRUMP: Last night, the witness was very upset 12 about the use of his name. 13 THE COURT: I heard about that. 14 MR. TRUMP: I conferred with Mr. MacMahon and asked 15 if the agency attorney would be able to speak with him about 16 the fact that you had stricken it from the record, and he was 17 still very upset later and spoke with the agency attorney and 18 the case agent, Ms. Hunt, who assured him that his name had 19 been stricken from the record. 20 They did not discuss his testimony at all and advised 21 him that no one from the prosecution would be able to speak 22 with him until the conclusion of the trial. 23 THE COURT: Do you want me to bring him up here right 24 now and tell him it's stricken? 25 MR. TRUMP: No, I don't believe that's necessary. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 7 of 232 PageID# 5259 542 1 2 THE COURT: All right. If it makes him feel any better, I didn't hear it, and I've got pretty good hearing. 3 MR. TRUMP: I think what's -- 4 THE COURT: Ms. Gunning didn't hear it. Only because 5 Ms. Thomson has the earphones on did she pick it up. 6 you heard it. 7 day, when folks are tired, and I'm told because of the screens, 8 it's a little harder to hear back there. 9 10 None of So it was done in such passing at the end of the MR. TRUMP: And he was told that because the agency attorney was sitting back there as well. 11 THE COURT: And also did not hear it. 12 MR. TRUMP: And also did not hear it. 13 THE COURT: Yeah. 14 MR. TRUMP: So I think everything's fine. I just 15 wanted to put it on the record that there was contact with the 16 witness by an agency counsel with the case agent, but nothing 17 concerning his testimony was discussed. 18 19 MR. POLLACK: Your Honor, we have no objection to that contact. 20 THE COURT: All right. You need to be very, very 21 careful. The whole point for having these signs is as a 22 reminder, you know, that that's the person's name, all right? 23 Very good. 24 MR. TRUMP: Thank you. 25 (End of bench conference.) Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 8 of 232 PageID# 5260 Robert S. - Cross 543 1 THE COURT: 2 MR. POLLACK: Go ahead. Thank you, Your Honor. 3 ROBERT S., GOVERNMENT'S WITNESS, PREVIOUSLY AFFIRMED, RESUMED 4 CROSS-EXAMINATION (Cont'd.) 5 BY MR. POLLACK: 6 Q. Good morning, Mr. S. 7 A. Good morning. 8 Q. We spoke yesterday a little bit about your role in 9 assessing the suitability of Merlin to play the part in the 10 legend that you were creating for Classified Program No. 1, 11 right? 12 A. Yes, we did. 13 Q. And you said that based on your assessment, you found that 14 Merlin was suitable for that role. 15 A. Yes. 16 Q. In fact, you said that you assessed that he had chutzpah, 17 right? 18 A. Yes. 19 Q. Now, I don't believe that's a technical CIA term, but can 20 you tell me what you meant by that? 21 A. 22 the mission that we'd set for him, that is to say, entering the 23 Iranian mission with allegedly Russian nuclear weapons plans. 24 Q. 25 judged that he was a person who would be willing to take risks He had the self-assurance that was necessary to perform And I think you said something to the effect of that you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 9 of 232 PageID# 5261 Robert S. - Cross 544 1 on behalf of the CIA, correct? 2 A. Yes. 3 Q. And that's important for a human asset to be willing and 4 able to do, correct? 5 A. Correct. 6 Q. And to be willing and able to do it in a way that their 7 affiliation with the CIA is not known, correct? 8 A. 9 a reckless person or someone who will take no risk at all. Yes. We're looking for a balanced risk taker, not either 10 Q. 11 in a way that can't be traced back to the CIA? 12 A. That's the hope. 13 Q. Understood. 14 reference on page 200 of the book about a case officer coaching 15 Merlin as to the best way to make contact with the Iranians, 16 including sending messages to Iranian scientists and scholars. 17 Do you remember that? 18 A. 19 Right. So somebody who can engage in conduct under legend It's not always the result. And we also talked a little bit about the Yes. MR. POLLACK: 20 Exhibit 16, please? 21 Q. 22 1998, correct? 23 A. And if I can have Mr. Francisco pull up And Exhibit 16 is a cable that was written on December 18, Um-hum. 24 THE COURT: 25 THE WITNESS: I'm sorry -Yes, it is. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 10 of 232 PageID# 5262 Robert S. - Cross 1 545 MR. POLLACK: Oh, I apologize, Mr. Olshan is pointing 2 out that I guess the jury does not have their notebooks that 3 contain the cables. 4 back out to them. I don't know if Mr. Wood could pass those 5 THE COURT: 6 MR. POLLACK: We have them up here? Yes, they're up there, Your Honor. 7 Q. 8 December 18, 1998, correct? 9 A. Yes. 10 Q. And the meeting in San Francisco that was the transition 11 from Case Officer Zach W. to Mr. Sterling had occurred in 12 November of '98, correct? 13 A. Yes. 14 Q. And this cable 16 is authored by you, correct? 15 A. Correct. 16 Q. And at the end of paragraph 3 -- if we can enlarge 17 that? -- it says, "M has raised his profile with Iranian 18 nuclear-related individuals and institutions by mail, Internet, 19 and conference attendance for the past year . . .." 20 Okay. All right. So, Mr. S., Exhibit 16 is a cable that was written And so the majority of that activity, if not all of 21 it, would have been when Zach W. was the case officer, correct? 22 A. 23 another year. 24 Q. 25 been doing that for a year, correct? The activity as of this point, but it continued for Correct. My question is as of this point, Zach W. has Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 11 of 232 PageID# 5263 Robert S. - Cross 546 1 A. Correct. 2 Q. Now, in order to work on Classified Program No. 1, 3 Mr. Sterling physically relocated from the Washington, D.C., 4 area to the New York office; is that correct? 5 A. 6 but yes, he relocated. 7 Q. 8 managers above Mr. Sterling, correct? 9 A. Correct. 10 Q. There was a Mark L., correct? 11 A. Yes. 12 Q. A Thomas H.? 13 A. Yes. 14 Q. A Mary G.? 15 A. Yes. 16 Q. And a David C.? 17 A. Yes. 18 Q. And when Mr. Sterling would draft a cable, it would be 19 reviewed by at least some of those managers before it would be 20 sent on back to Langley, correct? 21 A. Correct. 22 Q. And at least Mr. L. and Mr. H. would have reviewed that 23 cable traffic, correct? 24 A. 25 someone in that chain of command above Mr. Sterling would have Correct. Okay. That was not the only reason that he relocated, And in the New York office, there were a number of I don't know if they reviewed every single cable, but Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 12 of 232 PageID# 5264 Robert S. - Cross 547 1 reviewed each cable. 2 Q. And that's before it was even sent on to Langley? 3 A. Right. 4 Q. And then when it was sent on, you would review the cables, 5 correct? 6 A. 7 would be the first one to read it in most cases but not the 8 only one. 9 Q. I was probably the recipient intended by Mr. Sterling. I And in addition to being the recipient and reviewing 10 cables that came from New York pertaining to Classified Program 11 No. 1, you also would sometimes write cables to your superiors 12 about the program, correct? 13 A. 14 same building, and the cable would go to another office, but I 15 would consult with my superiors, and they would review cables 16 that I wrote. 17 Q. 18 you're telling us two different things. 19 people in the same office or same building, they would see the 20 cables, and you would also have oral conversations? 21 A. 22 went out -- 23 Q. I see. 24 A. -- but I would not write the cable to them. 25 Q. I understand. I wouldn't write cables to my superiors. Okay. Right. They were in the Let me make sure I understand that because I think First of all, for They would see the cables in review before they So the sequence would be, for example, if Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 13 of 232 PageID# 5265 Robert S. - Cross 548 1 we're talking about a cable written by Mr. Sterling, first it 2 would get reviewed by New York management, right? 3 A. Yes. 4 Q. Then it would get reviewed by you? 5 A. Yes. 6 Q. Then it would get reviewed by others in your office or 7 your building, correct? 8 A. Those who had access to this particular program, yes. 9 Q. Right. 10 A. No. 11 it would not have to come to headquarters before, for example, 12 it went to another field office. 13 Q. Okay. 14 A. New York sent them independently to other field offices. 15 Q. Okay. 16 before it even went through that review process -- that entire 17 review process we just discussed? 18 A. 19 internal review process, but it didn't have to come to 20 headquarters for someone there to approve that cable going off 21 to another field office. 22 Q. Okay. 23 A. New York could do that on its own after its own review 24 process. 25 Q. And then it would get sent out to other offices? If Mr. Sterling from New York wrote the cable, then So New York might send it to other field offices Well, it would go out of New York after New York's Okay. So Mr. Sterling could write a cable, it would be Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 14 of 232 PageID# 5266 Robert S. - Cross 549 1 reviewed by the New York office, it could then go to other 2 offices, and it could go to the D.C. area office, correct? 3 A. Yes. 4 Q. Your office? 5 A. Yes. 6 Q. And there you would review it, and others would review it, 7 correct? 8 A. Correct. 9 Q. And then might it get further disseminated from there? 10 A. No. 11 Q. Okay. 12 Program No. 1 that would be disseminated from there? 13 A. I don't understand your question. 14 Q. Sure. 15 about Classified Program No. 1 that were, that were then sent 16 out, or did all of the cables about Classified Program No. 1 17 originate in New York? 18 A. 19 agency overseas offices. 20 Q. 21 superiors of yours? 22 A. Correct. 23 Q. And, in fact, you had indicated that while you might have 24 been a colonel, there were an awful lot of generals, right? 25 A. Would there be other cables about Classified Would there be cables that originated in Langley No, we originated them ourselves, and they went to other Okay. And cables that you originated also all went to That's correct. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 15 of 232 PageID# 5267 Robert S. - Cross 550 1 Q. And in 2003, after the CIA learned that Mr. Risen was 2 working on a story about Classified Program No. 1, you were 3 shown a list by the FBI of people that at that point the FBI 4 was aware of who were aware of the program, correct? 5 A. Correct. 6 Q. And that list had about 90 people on it, correct? 7 A. Correct. 8 Q. And you, you reviewed that list, and you said that that 9 list was likely incomplete, correct? 10 A. Correct. 11 Q. Meaning there were probably more people that had an 12 awareness of the program, correct? 13 A. Correct. 14 Q. You described yesterday that in the early stages of the 15 program, there were essentially separate and parallel tracks 16 that were taking place, correct? 17 A. Throughout the program. 18 Q. And so, for example, there was the operational phase 19 assessing Merlin, preparing Merlin, and then there was the 20 technical phase, the development of the plans, correct? 21 A. Correct. 22 Q. And in the planning stages of the operation, there were 23 some people within the CIA who were concerned that the 24 deployment of the technology in question might allow the 25 recipient nation to modify the technology and use it in some Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 16 of 232 PageID# 5268 Robert S. - Cross 551 1 fashion, correct? 2 A. That's correct. 3 Q. Now, ultimately, they satisfied themselves that that was 4 only a very remote possibility, correct? 5 A. Correct. 6 Q. And the -- part of the technological development was to 7 have a, a team of scientists at a national lab who were not 8 involved in the creation of the plans to review the plans to 9 see if they would spot the flaws, correct? 10 A. Correct. 11 Q. And they worked on it for about five months? 12 A. I don't know the exact time, but that sounds about right. 13 Q. And they were able to detect about 25 percent of the 14 flaws? 15 A. I have not heard that percentage before. 16 Q. You were aware that they were able to detect some of the 17 flaws? 18 A. Some of the flaws, yes. 19 Q. And while they worked on it for five months, you expected 20 that the Iranians might spend three to five years examining 21 these plans, correct? 22 A. Correct. 23 Q. And the Iranians at that point had 1950s nuclear 24 technology? 25 A. As far as we knew. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 17 of 232 PageID# 5269 Robert S. - Cross 552 1 Q. And what you were planning to give them, these fire set 2 plans were essentially 1980s technology, correct? 3 A. Correct. 4 Q. Now, you didn't know whether the Iranians had access to 5 any Russian former nuclear scientists, correct? 6 A. We assumed that they might. 7 Q. But any one scientist wouldn't have a complete picture 8 even of a single component like a fire set, correct? 9 A. Correct. 10 Q. And so there would be holes in the Iranians' knowledge, 11 correct? 12 A. Correct. 13 Q. And presumably, the Iranians would be looking for 14 information that came from other sources that might fill in 15 some of those blanks for them? 16 A. Yes. 17 Q. During the time that Zach W. was the case officer for 18 Merlin, you met with Merlin about once a month? 19 A. 20 distance away from the operation, but I won't argue it. 21 have cables that show that, then that's what happened. 22 it was probably every other month, but it's 15 years ago, so 23 you may be right. 24 Q. 25 Merlin about once a month to minimize the handling case Probably less than that because we were still some If you I think It is 15 years ago, but do you recall that you met with Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 18 of 232 PageID# 5270 Robert S. - Cross 553 1 officer's burden? 2 A. Yes. 3 Q. Now, in that meeting in San Francisco, when Merlin first 4 saw the plans, he said something to the effect of: 5 work. 6 A. He didn't say it's a fake. 7 Q. He did not say it's a fake? 8 A. Not to my recollection. 9 Q. But it is 15 years ago. 10 A. Yes. 11 Q. And you testified yesterday that when -- whatever the 12 precise words were that Mr. Merlin used, when he made his 13 comments, Mr. Sterling seemed taken aback? 14 A. 15 certainly wanted to know whether we were going to have a 16 problem. 17 Q. Well -- 18 A. But I guess that was more about the Merlin reaction than 19 about the technology. 20 Q. 21 reaction when Merlin made the comments that he made about it 22 not working, okay? 23 was your observation that Mr. Sterling seemed taken aback? 24 A. 25 honest, I was focusing more on Merlin than Mr. Sterling at that It's a fake. This won't It will not work? He said it won't work. I don't know whether you'd call it taken aback. Okay. He My question is your observations of Mr. Sterling's And did you not testify yesterday that it I guess if that's what I said, that's what I said. To be Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 19 of 232 PageID# 5271 Robert S. - Cross 554 1 time, but Mr. Sterling did approach me, as I have testified. 2 Q. 3 correct? 4 A. Yes. 5 Q. And you told him that there wasn't, correct? 6 A. I told him I didn't think so, and we would triple-check 7 with the designer and the laboratory. 8 Q. 9 that Mr. Sterling asked, "Is this a problem?" and that you Okay. And, in fact, he asked you if there was a problem, Do you recall when interviewed by the FBI in 2006, saying 10 replied that it was not? 11 A. Yes. 12 Q. When -- you testified yesterday that when you disagreed 13 with a subordinate, you would politely and correctly -- 14 politely and tactfully correct them. 15 A. If there were a significant issue, yes. 16 Q. And were there ever occasions, Mr. S., where you were 17 maybe less than polite and tactful? 18 A. Of course. 19 Q. And on this particular occasion, would you characterize 20 your response to Mr. Sterling as essentially telling him to 21 shut up? 22 A. Not at all. 23 Q. Not at all? 24 A. Not at all. 25 steps we were going to take to address Merlin's questions. And I elaborated. I'm human. He was very much aware of the additional Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 20 of 232 PageID# 5272 Robert S. - Cross 555 1 Q. And, in fact, there was further consultation with the lab, 2 correct? 3 A. Yes. 4 Q. To see if what Merlin had spotted was precisely what they 5 intended, correct? 6 A. Correct. 7 Q. And you confirmed that it was, correct? 8 A. The lab confirmed that it was. 9 Q. That's what I mean. You confirmed with the lab that it 10 was? 11 A. Yes. 12 Q. And if we could have Exhibit 14, paragraph 4, the 13 conclusion, the last sentence is, "We will make no changes to 14 the plans and lists unless a serious discrepancy arises." 15 Correct? 16 A. Correct. 17 Q. And so no changes were made, correct? 18 A. No serious discrepancy arose, and no changes were made. 19 Q. Following that meeting in San Francisco in November of 20 1998, for the next several months, say, through the spring of 21 1999, Mr. Sterling had a number of meetings with Merlin, 22 correct? 23 A. Correct. 24 Q. And those meetings are reflected in cable traffic, 25 correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 21 of 232 PageID# 5273 Robert S. - Cross 556 1 A. They are. 2 Q. But as the operational details developed, you met with 3 Merlin to describe the details of the operation to him, 4 correct? 5 A. 6 York and meet with Merlin and Mr. Sterling to convey the new 7 information in person. 8 Q. 9 a cable dated May 13, 1999, correct? When there was a major new development, I would go to New Let's go ahead and look at Government Exhibit 24. This is 10 A. Correct. 11 Q. And on the second page, paragraph 4, the partial paragraph 12 at the top of the page, it says, ". . . as the project 13 develops, M" -- which is Merlin, right? 14 A. Um-hum. 15 Q. ". . . should expect a visit from Mr. S." -- you, correct? 16 A. Correct. 17 Q. ". . . who will provide an update on the definite 18 direction of the project. 19 of the project that require certain approvals beyond the 20 purview of C/O." 21 M understands that there are aspects And that's the case officer, correct? 22 A. Correct. 23 Q. And, in fact, you did meet with Merlin to describe the 24 details of the operation with him, correct? 25 A. Yes, many times. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 22 of 232 PageID# 5274 Robert S. - Cross Okay. 557 1 Q. For example, Exhibit 25 -- do you want to pull that 2 up? -- this is a May 25 meeting that you attended with 3 Mr. Sterling and Merlin, correct? 4 A. Right. 5 Q. And in this meeting, in paragraph 3, you were the one who 6 explained to Merlin that the project had progressed such that 7 the next steps will entail Merlin making direct contact with an 8 Iranian official who would be interested in the Classified 9 Program No. 1 device, and you were the one who told him that he 10 would be directed to make contact with Iranian Subject No. 1, 11 correct? 12 A. Yes. 13 Q. And you are the one who told him that he would need to 14 travel to Vienna for this purpose? 15 A. Yes. 16 Q. And then -- I'm sorry, if we can just keep that up? 17 On the next page, paragraph 5, in this same meeting, 18 Merlin was given and signed an agreement that talked about what 19 his salary was going to be, correct? 20 A. Correct. 21 Q. And that was done in your presence? 22 A. Yes. 23 Q. And you had described yesterday that arrangement as being 24 a business arrangement, correct? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 23 of 232 PageID# 5275 Robert S. - Cross 558 1 Q. The CIA made certain monetary promises to Merlin, correct? 2 A. Not just monetary. 3 cooperating with us. 4 Q. Yes. 5 A. Yes. 6 Q. And you believed that other than a few hiccups, I believe 7 you said, you thought that Merlin did his job well? 8 A. Yes. 9 Q. But you would agree and -- you would, you would agree that Also protecting his identity as And Merlin made promises to you, right? 10 Merlin was no one's idea of a clandestine operative, correct? 11 A. Correct. 12 Q. And, in fact, that's something that you noted in a cable, 13 correct? 14 A. Yes. 15 Q. And, in fact, you have described Merlin as having been a 16 difficult agent. 17 A. That's correct. 18 Q. If we can go ahead and pull up Exhibit 31, please? 19 And again, this is a cable that you drafted, Mr. S.? 20 A. Yes. 21 Q. And at the second page, when we look at paragraph 6 -- and 22 I should have noted this is November 24, 1999, right? 23 A. Yes. 24 Q. In paragraph 6, you say that he is also redrafting his 25 cover letter while retaining his wonderfully cracked English Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 24 of 232 PageID# 5276 Robert S. - Cross 559 1 diction, correct? And when you say "cover letter" there, I 2 want to make sure we know what you're talking about. 3 a draft of the letter that was going to be put in the envelope 4 with the plans to go to the Iranian subject, correct? 5 A. Yes. 6 Q. The Iranians -- to be, hopefully to be delivered to the 7 Iranian subject back in Iran? 8 A. 9 Iran. This was To be delivered in Vienna and hopefully transited back to 10 Q. Right. So that cover letter was intended for the person 11 back in Iran, if it ever made it that far? 12 A. 13 this and care about the subject. 14 Q. Okay. 15 A. Yes. 16 Q. And your hope was that the package would get delivered to 17 Iran and read by somebody in Iran? 18 A. Correct. 19 Q. And I don't want to skip ahead too much, but just that so 20 we're all on the same page on the words that we're using, 21 ultimately, there was a decision made that there would also be 22 a, what I'll call a cover note, which was going to be a 23 handwritten note that would be on the outside of the package, 24 correct? 25 A. It was intended for any Iranian official who might read Yes. But it was going to go with the package? There were two different recipients. One was the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 25 of 232 PageID# 5277 Robert S. - Cross 560 1 person in Iran who whom Mr. -- not Mr. Sterling -- Merlin had 2 been in contact, and the other was an Iran official who we knew 3 to be in Vienna. 4 Q. 5 that would be intended for the person in Vienna? 6 A. Correct. 7 Q. And the interior cover letter would be intended for 8 somebody in Iran? 9 A. And so the cover note, if you will, the handwritten note, Correct, although we hoped that the person in Vienna, who 10 was also involved in nuclear things, would read it, too. 11 Q. 12 understand if I'm talking about a cover note, I'm talking about 13 that handwritten note that was intended for the person in 14 Vienna, correct? 15 A. If that's the language you're using, yes. 16 Q. And if we're talking about a cover letter, we're talking 17 about the letter that was going to go inside the package, 18 correct? 19 A. Okay. 20 Q. Which was to be typed, correct? 21 A. Yes. 22 Q. Okay. 23 idea of the cover note even arises, right? 24 A. Yes. 25 Q. And so here we're clear that what we're talking about in Okay. But just so that we're all on the same page, you'll And so here in paragraph 6 -- this is before the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 26 of 232 PageID# 5278 Robert S. - Cross 561 1 paragraph 6 is the cover letter. 2 A. Correct. 3 Q. The interior letter. 4 And that was going to be typed? 5 A. It was going to be printed off in a business center in a 6 hotel in Vienna. 7 Q. 8 going to be a typed, computer-generated document, not a 9 handwritten note, correct? But regardless of where it was going to be printed, it was 10 A. Correct. 11 Q. Okay. 12 letter, you wanted Merlin's input on the verbiage that was 13 going to be used in that cover letter because you wanted it to 14 be authentic. 15 English diction, correct? 16 A. Correct. 17 Q. And you understood that when he was drafting and 18 redrafting the drafts of this cover letter, that he was doing 19 it on a home computer, correct? 20 A. Correct. 21 Q. And he would bring in a printout of whatever the current 22 iteration was? 23 A. Right. 24 Q. And the CIA would review that draft, maybe have some 25 comments for him, and then he would go back to his home And when you say he is also redrafting his cover You wanted it to be in his wonderfully cracked Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 27 of 232 PageID# 5279 Robert S. - Cross 562 1 computer and create a new version, correct? 2 A. Correct. 3 Q. If we can look at Exhibit 32, this is a cable about a 4 November 18, 1999 meeting, correct? 5 A. Correct. 6 Q. And again, this is a meeting with Mr. Sterling and Merlin 7 and you, correct? 8 A. Correct. 9 Q. And during that meeting, you talked about some more 10 details about the forthcoming approach, correct? 11 A. Yes. 12 Q. Meaning the travel to Vienna, correct? 13 A. Yes. 14 Q. And in paragraph 3, you then provided Merlin with 15 additional information that should be included in the letter, 16 which will be included in the package being prepared for 17 Iranian Subject No. 1 in Vienna, correct? 18 A. Yes. 19 Q. Okay. 20 the draft, again, the cover letter, correct? 21 A. Yes. 22 Q. And he agreed to make those changes on his home computer, 23 correct? 24 A. Yes. 25 Q. And then in Exhibit 33, this is a December 16, 1999, cable So you're giving Merlin some suggested changes to We went through numerous drafts. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 28 of 232 PageID# 5280 Robert S. - Cross 563 1 about a December 14 meeting, right? 2 A. Yes. 3 Q. And again, this was a meeting with Merlin and Mr. Sterling 4 that you attended, correct? 5 A. Correct. 6 Q. And as it says at the beginning of paragraph 3, "Part of 7 the meeting was spent reviewing/revising the letter that is to 8 be included within the package of materials for passage," 9 correct? 10 A. Correct. 11 Q. "M is to take revisions and formulate the letter in his 12 own particular prose for the sake of authenticity. 13 provided with maps and directions as to the location of the 14 Iranian mission as well as a general layout of the building," 15 right? 16 A. Yes. 17 Q. So when you say you spent it reviewing and revising the 18 letter -- part of the meeting reviewing and revising the 19 letter, you're discussing with him revisions, right? 20 A. Correct. 21 Q. But he is going to actually go home and make those 22 revisions and do it in his own particular prose on his 23 computer, correct? 24 A. Correct. 25 Q. Now, let's go ahead to Exhibit 35. M was also Exhibit 35 is a cable Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 29 of 232 PageID# 5281 Robert S. - Cross 564 1 about a January 10, 2000, meeting, correct? 2 A. Correct. 3 Q. Now, this is a meeting just between Mr. Sterling and 4 Merlin. 5 A. Correct. 6 Q. And in this meeting, in paragraph No. 2, Merlin discusses 7 his dissatisfaction with the status of his salary 8 discrepancies, which culminated in him expressing an 9 unwillingness to continue with the project unless these issues You don't attend this meeting, correct? 10 were resolved to his satisfaction, correct? 11 A. Correct. 12 Q. And so he's communicating that he's not going to do this 13 unless you resolve his salary dispute to his satisfaction, 14 correct? 15 A. That's what he said. 16 Q. And you had testified yesterday that it was not atypical 17 of Merlin, in fact, it was very common that Merlin would raise 18 disputes or what he believed to be discrepancies over the 19 amount of money that he was owed, correct? 20 A. Yes, he did that repeatedly. 21 Q. Now, on the second page of this cable, at paragraph 5, 22 Mr. Sterling sets out the present iteration of the draft cover 23 letter, correct? 24 A. Correct. 25 Q. And so he's quoting verbatim the latest version that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 30 of 232 PageID# 5282 Robert S. - Cross 565 1 Merlin has brought in on paper to, to show to Mr. Sterling, 2 correct? 3 A. Right. 4 Q. The computer version of this letter resides on Merlin's 5 home computer? 6 A. Correct. 7 Q. And in paragraph 6, Mr. Sterling says that it's his 8 suggestion this letter can be pared down a bit, correct? 9 A. Correct. 10 Q. And he then says that he defers to headquarters on the 11 final version of the letter, correct? 12 A. Correct. 13 Q. And that would be deferring to you, correct? 14 A. Me and my superiors. 15 Q. And then in paragraph 9 of the same exhibit, 35, Merlin 16 again reiterates that he's not going to proceed with the 17 project unless his salary demand is met, correct? 18 A. Correct. 19 Q. And specifically what he's asking for is $66,000 that he 20 believes is due to him, correct? 21 A. Yes. 22 Q. Sixty would be $5,000 a month? 23 A. Yes. 24 Q. And that's what you recall even today in 2015, you recall 25 that that's what Merlin was receiving at that time, $5,000 a And our figure was 60. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 31 of 232 PageID# 5283 Robert S. - Cross 566 1 month? 2 A. 3 talking about the dispute was always how many months he was 4 being paid for. 5 for a month, where our records showed that we had, and that's 6 where the difference comes out here, I think. 7 Q. 8 receiving $5,000 a month? 9 A. Yes, he was. 10 Q. Now, again -- well, let's go -- let's move on to Exhibit 11 36. 36 is a cable from you, correct? 12 A. Yes. 13 Q. Back to New York, correct? 14 A. Correct. 15 Q. This is basically a response, is it not, to the cable that 16 we just looked at? 17 A. It is. 18 Q. So Mr. Sterling reports on this meeting that he had with 19 Merlin, and you're now responding back to him? 20 A. Correct. 21 Q. And when you say in paragraph 2 "headquarters," is that 22 you, you and your superiors? 23 A. Yes. 24 Q. ". . . regrets that Sterling was a victim of the murdered 25 messenger syndrome after bringing (not very) bad news to Well, he'd gotten a raise by this point, and I think we're He would always assert that we hadn't paid him So you -- but you recall at some earlier time, he was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 32 of 232 PageID# 5284 Robert S. - Cross 1 567 Merlin." 2 And so what you're saying here is basically Merlin 3 was, was quite rude to Mr. Sterling? 4 A. Yes. 5 Q. And you felt it was a case of murdered messenger syndrome? 6 A. Right. 7 Q. He shot the messenger. 8 9 He shot the messenger. So he was blaming Mr. Sterling for something that wasn't Mr. Sterling's fault. 10 A. Exactly. 11 Q. In fact, later in that paragraph, it says, "Mr. S. will 12 also tell him" -- and that's a reference to Merlin, correct? 13 "Mr. S. will also tell [Merlin] to stop blaming Sterling for 14 things which occurred before his watch, and to avoid the 15 temptation to try to play one CIA officer against another," 16 correct? 17 THE WITNESS: (Nodding head.) 18 THE COURT: 19 Nodding your head won't do it. 20 THE WITNESS: 21 THE COURT: I'm sorry, you have to say yes or no. Yes. Sorry. That's all right. 22 BY MR. POLLACK: 23 Q. 24 that Merlin didn't like Mr. Sterling? 25 A. Now, in fact, it had been your observation, had it not, I'm not sure that's a fair assessment. Merlin blamed Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 33 of 232 PageID# 5285 Robert S. - Cross 568 1 Sterling towards the end of this relationship for things that 2 weren't Sterling's fault. 3 Mr. Sterling liked Merlin much, either. 4 Q. Okay. 5 A. He never said so to me. 6 Q. Was it your belief that he disliked Sterling? 7 A. No. 8 Q. And you didn't believe that he disliked Sterling in part 9 because Sterling is black? By that point, I don't think My question was whether Merlin disliked Sterling. 10 A. I did not believe that. 11 Q. Okay. 12 A. I believe he was frustrated, and Sterling was the person 13 in front of him. 14 Q. 15 2003? 16 A. 17 one. 18 Q. 19 that the asset, as a reference to Merlin, the asset's dislike 20 for Sterling was at least in part due to the fact that Sterling 21 is black? 22 A. If I said that at the time, then I did. 23 Q. And I take it you wouldn't have said it if you didn't 24 believe it? 25 A. Do you recall being interviewed by the FBI on April 12, I was interviewed many times. I don't know that specific Do you recall in an interview by the FBI telling the FBI At the time, I believed it, yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 34 of 232 PageID# 5286 Robert S. - Cross 569 1 Q. And 2003 was a lot closer to the events of 1998 than 2015 2 is, correct? 3 A. Correct. 4 Q. And, in fact, you believed, did you not, that Merlin was, 5 in fact, racist to a certain degree? 6 A. 7 typical Russian attitudes on racial matters. 8 Q. 9 Merlin's case officer, Merlin was in the process of buying a When he first arrived in the United States, he had very In fact, in 1997, just a year before Mr. Sterling became 10 house, and he commented to you that he was concerned about 11 purchasing that house because he saw a black man in the 12 neighborhood. 13 A. Yes, he did. 14 Q. Your view was that Mr. Sterling had done fine work in 15 winning the trust of Merlin, correct? 16 A. Yes. 17 Q. And Merlin was somebody that you described as a somewhat 18 touchy asset, correct? 19 A. Right. 20 Q. Now, you testified yesterday, I believe, that you knew 21 Mr. Sterling even prior to the time that he became the case 22 officer for Merlin, correct? 23 A. For a few months. 24 Q. Okay. 25 he was the case officer for Merlin? And then you worked with him during the time that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 35 of 232 PageID# 5287 Robert S. - Cross 570 1 A. Correct. 2 Q. You were aware, were you not, that Mr. Sterling had a 3 difficult upbringing in Missouri? 4 A. He told me that. 5 Q. And you were aware that he was the first in his family to 6 go to college? 7 MR. TRUMP: I think we're getting far afield. 8 is all hearsay. 9 Mr. Sterling to the witness, and that's -- 10 This These are statements apparently made by THE COURT: They can't come in for the truth of their 11 contents, so what is the purpose of having those questions? 12 Mr. Pollack, what is the purpose? 13 MR. POLLACK: I think that there have been various 14 characterizations of Mr. Sterling's conduct with respect to 15 this program and afterwards, and I think that -- 16 THE COURT: I don't think -- those questions don't 17 relate to that, so I'll sustain the government's objection. 18 Move on. 19 BY MR. POLLACK: 20 Q. 21 working on Classified Program No. 1, he was also pursuing a law 22 degree, correct? 23 A. I knew that. 24 Q. And studying for the bar exam, correct? 25 A. Yes. Mr. S., you knew that while Mr. Sterling was in New York Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 36 of 232 PageID# 5288 Robert S. - Cross 1 Q. 2 licensed lawyer? 3 A. 571 And you knew that he passed the bar exam, became a That's what he told me. 4 MR. TRUMP: Again, objection. 5 THE COURT: What's the relevance of that line, 6 Mr. Pollack? 7 8 MR. TRUMP: And the basis of his knowledge again is only hearsay. 9 THE COURT: I'll sustain the objection. 10 BY MR. POLLACK: 11 Q. 12 treated unfairly by the CIA? 13 A. Mr. Sterling stated that he had been treated unfairly. 14 Q. And -- 15 You believed that Mr. Sterling believed that he had been THE COURT: Wait, wait. To make that -- in what 16 frame, if you can recall, did he make that statement to you or 17 those statements? 18 THE WITNESS: 19 THE COURT: 20 THE WITNESS: 21 THE COURT: 22 During 1999. So while he was working on the project? Yes. And approximately how many times, if you can recall, did he make such statements to you? 23 THE WITNESS: 24 THE COURT: 25 A handful. Did you do anything in response to those statements? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 37 of 232 PageID# 5289 Robert S. - Cross 1 THE WITNESS: 572 No. I was not in his chain of command. 2 I expressed to him that I often felt frustrations with the 3 management, too, and that he needed to do his job well and not 4 worry about it. 5 THE COURT: Thank you. Go ahead. 6 BY MR. POLLACK: 7 Q. And you felt that he did do his job well? 8 A. He did. 9 Q. But he also brought a discrimination claim against the 10 CIA, correct? 11 A. I did not know that at the time. 12 Q. Okay. 13 called a PAR? 14 A. Yes. 15 Q. And that stands for? 16 A. Performance appraisal report. 17 Q. And a PAR, or performance appraisal report, is a 18 performance evaluation of an employee, correct? 19 A. Right. 20 Q. And Mr. Trump asked you whether such documents, PARs, are 21 initially marked as Secret. 22 A. I do. 23 Q. Are you aware, Mr. S., that when an employee is in a 24 discrimination suit against the agency, that an unclassified 25 version of the PAR is prepared and provided to the employee? Mr. Trump asked you yesterday about a document Do you recall that question? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 38 of 232 PageID# 5290 Robert S. - Cross 573 1 MR. TRUMP: Objection. Well beyond the scope. 2 THE COURT: It's way beyond the scope of the direct, 3 so I'm sustaining the objection. 4 at all raised in Mr. Trump's direct. 5 MR. POLLACK: There was nothing about this Well, Mr. Trump asked if PARs are 6 initially marked as Secret. 7 there are later un-Secret versions of the PAR. 8 THE COURT: 9 THE WITNESS: I'm exploring if he knows whether Do you know one way or the other? 10 THE COURT: 11 MR. POLLACK: 12 THE COURT: I do not know. That's the answer. Okay. Thank you, Your Honor. And I do at this point want to alert the 13 jury to something that I omitted to tell you at the beginning, 14 and that is, the only evidence you have in the case are 15 stipulations, exhibits I've admitted, or the testimony of 16 witnesses. 17 it's in their opening statements, their closing arguments, or 18 in the form of a question, so if a lawyer makes a statement in 19 a question but the witness says, "I don't know," or "No," 20 obviously, the lawyer's statement is not any evidence you 21 should consider. What lawyers say to you is not evidence, so whether 22 Now, lawyers are allowed to do in cross-examination 23 what are called leading questions; that is, the lawyer almost 24 states a statement, makes a statement and then asks the 25 question, "Is that true or not?" But if the witness says, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 39 of 232 PageID# 5291 Robert S. - Cross 574 1 "It's not true," or "I don't know," you have to disregard that 2 question of the lawyer because it is not evidence. 3 All right, let's move on. 4 MR. POLLACK: Thank you, Your Honor. 5 Q. Let's look at Government Exhibit 36. This is the document 6 we were looking at a moment ago, the one in which you said that 7 you regretted that Mr. Sterling was the victim of murdered 8 messenger syndrome or shoot the messenger. 9 paragraph 3 of that same cable from you, it says, "That If you'd go down to 10 unpleasantness aside, his" -- meaning Merlin's -- "proposed 11 letter, now in its fifth iteration, shows real progress," 12 correct? 13 A. Correct. 14 Q. And that's what you were discussing before, that there 15 were a number of different versions or iterations of this 16 letter, correct? 17 A. Yes. 18 Q. And the fifth iteration that you're referencing here that 19 you think is a great progress from the prior iterations is the 20 one that was set forth in the cable that you're responding to, 21 correct? 22 A. Correct. 23 Q. The one set forth in Exhibit 35, correct? 24 A. Correct. 25 Q. And then you make a suggestion as to even though you think Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 40 of 232 PageID# 5292 Robert S. - Cross 575 1 it's made great progress, there's an additional suggestion that 2 you make, correct? 3 A. There is. 4 Q. You say that he -- meaning Merlin? 5 A. Correct. 6 Q. -- should say explicitly that he is offering the schematic 7 and associated parts list free, correct? 8 A. Correct. 9 Q. And so your anticipation in making that suggestion is that 10 it would be conveyed to Merlin, correct? 11 A. Correct. 12 Q. And then Merlin on his home computer would edit the fifth 13 iteration, correct? 14 A. Correct. 15 Q. The one, the one that appeared in Exhibit 35? 16 A. Correct. 17 Q. And add to it something that explicitly says that he's 18 offering the schematic and associated parts list for free, 19 correct? 20 A. Correct. 21 Q. And that would -- well, I'll stop there. 22 strike that. 23 So -- let me So you would anticipate for Merlin to make that edit 24 on his home computer? 25 A. Correct. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 41 of 232 PageID# 5293 Robert S. - Cross 576 1 Q. Now, in all of this editing of the drafts back and forth, 2 it's fair to say that the editing of the drafts was done 3 mostly, not the physical editing but the ideas for the edits 4 mostly came from you, correct? 5 A. 6 ideas as well, as did Merlin. 7 Q. 8 50/50 partnership? 9 A. No, it was a partnership. Okay. Mr. Sterling had some excellent But as between you and Mr. Sterling, it was not a I was the senior officer, but he had the hands-on 10 responsibility, so -- 11 Q. Is it fair to say -- 12 A. -- I don't know where you would parse out the percentage. 13 Q. I'm sorry? 14 A. I don't know where you would put the percentage. 15 Q. You don't? 16 A. He deferred to me on the overall program management 17 issues. 18 Q. 19 cover letter, is it fair to say that you were the one doing 20 most of the thinking and that you would parse it 70 percent 21 you, 30 percent Sterling? 22 A. 23 with an awful lot of the thinking as well. 24 Q. 25 2006? Okay. Well, specifically with respect to revisions to the I don't know that that's accurate. I credit Mr. Sterling Do you recall being interviewed by the FBI on February 28, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 42 of 232 PageID# 5294 Robert S. - Cross 577 1 A. I recall being interviewed. The specific date, no. 2 Q. Do you recall at any interview by the FBI the interviewing 3 agents asking whether it was you or Sterling that was 4 responsible for the editing of these drafts during the 5 preparation for the operation? 6 most of the thinking. 7 Sterling." 8 A. Okay. 9 Q. Today you'd like to give more of the credit to And you stated, "I was doing I would give it 70 to 30 me to I think I was being rather ungenerous there. 10 Mr. Sterling? 11 A. 12 revealed the whole operation. 13 Q. 14 17, 2000, and this one's written by you, correct? 15 A. Yes. 16 Q. And this is describing a meeting that had taken place a 17 few days earlier, on February 14, correct? 18 A. Correct. 19 Q. And if we look at paragraph 2, this was again a meeting 20 with Merlin and Mr. Sterling that you attended, correct? 21 A. Correct. 22 Q. And you say that Merlin continued to object to minor 23 proposed changes in his agreement, and when you say 24 "agreement," the salary agreement, correct? 25 A. This was shortly after the publication of a book that I was being ungenerous. Let's go to Exhibit No. 37. This is a cable on February Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 43 of 232 PageID# 5295 Robert S. - Cross 578 1 Q. And, in fact, Merlin walked out of the meeting, correct? 2 A. Yes. 3 Q. And the next day, he called you, not Mr. Sterling, 4 correct? 5 A. Correct. 6 Q. His storming out of the meeting over a minor dispute, 7 would that be another one of the hiccups in the relationship 8 with Merlin? 9 A. Yes. 10 Q. And when he called you the next day, that was to apologize 11 for his behavior the day before? 12 A. Yes. 13 Q. The behavior that occurred in front of Mr. Sterling? 14 A. Yes. 15 Q. But yet he called you to apologize, not Mr. Sterling, 16 correct? 17 A. He did. 18 Q. And let's go to Exhibit 37 -- no, I'm sorry -- yeah, 37. 19 I think it's the one we just had up. 20 Still in that second paragraph, this discusses that 21 he called you the next morning to say it was all a 22 misunderstanding, correct? 23 A. Yes. 24 Q. And you then set up a meeting with him for February 21, 25 correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 44 of 232 PageID# 5296 Robert S. - Cross 579 1 A. Correct. 2 Q. And that was going to be an opportunity for you to make a 3 final assessment as to whether Merlin really was in the right 4 frame of mind to go forward with the trip to Vienna, correct? 5 A. Correct. 6 Q. And you have -- well, in some -- in this time frame, this 7 meeting, the time leading up to that meeting on February 21, 8 it's fair to say that in your mind, Merlin to some degree or 9 another had developed cold feet? 10 A. Yes. 11 Q. And you had to convince him to move forward? 12 A. I had to assess whether he had convinced himself or his 13 wife had convinced him to move forward. 14 Q. 15 convince him to move forward? 16 A. 17 his arm to do this unless I sensed that he was completely 18 ready. 19 Q. 20 recall specific dates, but you were interviewed by the FBI on 21 May 26, 2003 -- do you recall telling the FBI in an interview, 22 even if you can't pinpoint the date, that at some point prior 23 to the operation, you concluded that Merlin had developed "cold 24 feet" and you had to convince him to move forward? 25 A. You wouldn't characterize it as saying that you had to No, I would not, because I was not going to try to twist Do you recall -- and again, I appreciate you may not Over a series of meetings, yes. Not at the last one. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 45 of 232 PageID# 5297 Robert S. - Cross 580 1 Q. So over a series of meetings, you had to convince him to 2 move forward? 3 A. Yes. 4 Q. Let's look at 38, and this is that meeting that you had 5 set up with Merlin in your phone call with him, correct? 6 A. Yes. 7 Q. The meeting of February 21? 8 A. Yes. 9 Q. And this is a meeting that is attended just by you and 10 Merlin? 11 A. Correct. 12 Q. Mr. Sterling is not there? 13 A. Correct. 14 Q. And you wrote this cable? 15 A. Correct. 16 Q. And this is -- well, ultimately, you determined that in 17 your view, Merlin is ready to proceed, correct? 18 A. 19 correct. 20 Q. So you concluded that he was? 21 A. Yes. 22 Q. And so this ends up being the final meeting with him 23 between anybody at the CIA before he goes to Vienna, correct? 24 A. Correct. 25 Q. And it's just with you? He told me he was, and all of the signs were that that was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 46 of 232 PageID# 5298 Robert S. - Cross 581 1 A. Correct. 2 Q. And in paragraph 2, it says you met with him and made 3 final preparations for his delivery of the CP 1. 4 proliferation 1 is it? 5 A. Classified program. 6 Q. Classified Program 1, I'm sorry, Classified Program 1, 7 disinformation package to the Iranian mission in Vienna, 8 correct? 9 A. Correct. 10 Q. And in paragraph 3 -- I'm sorry, let's stay on paragraph 11 2. In this meeting, you paid him the amount that he had said 12 that he wanted or he wasn't willing to proceed, correct? 13 A. Correct. 14 Q. And you're the one who paid him. 15 person at the meeting, right? 16 A. Correct. 17 Q. So when it says, "C/O paid him $66,000," the C/O that's 18 being referenced there is you, correct? 19 A. Right. 20 Q. And similarly, in paragraph 3, where it says, "Once the 21 financial part of the meeting was over, M and C/O went over his 22 travel plans, comportment in Vienna, and approach to the 23 Iranian mission in great detail" -- correct? 24 A. Correct. 25 Q. And you are the -- is "C/O" case officer? The counter- You're the only other Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 47 of 232 PageID# 5299 Robert S. - Cross 582 1 A. Yes. 2 Q. You are the case officer that went over his travel plans, 3 comportment in Vienna, and approach to the mission in great 4 detail, correct? 5 A. Correct. 6 Q. And you were very familiar with the City of Vienna? 7 A. I was. 8 Q. You had been there several times? 9 A. Correct. 10 Q. And specifically, you had been there several times for the 11 purpose of casing the city for purposes of this operation, 12 correct? 13 A. Correct. 14 Q. In other words, kind of doing a dress rehearsal of the 15 routes that, that Merlin might take, how to approach the 16 building, correct? 17 A. I did not do that. 18 Q. Okay. 19 A. I approached the building myself and stayed a reasonable 20 distance and observed it -- 21 Q. Okay. 22 A. -- so that I could provide to him explicit directions on 23 how to do it. 24 25 I did not do an elaborate route as to how he would get there. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 48 of 232 PageID# 5300 Robert S. - Cross 583 1 Q. You were familiar with the city generally? 2 A. Correct. 3 Q. But the purpose of -- was it a single trip or multiple 4 trips? 5 A. Multiple trips. 6 Q. The purpose of these multiple trips specifically was to 7 figure out the layout of the IAEA mission in Vienna, correct? 8 A. Correct. 9 Q. Now, as far as you know, Mr. Sterling has never been to 10 Vienna, correct? 11 A. As far as I know. 12 Q. And your briefing to Merlin was very detailed, correct? 13 A. Correct. 14 Q. Specifically, you briefed him on street names, correct? 15 A. Yes. 16 Q. Now, in this final meeting, in paragraph 4, we're still on 17 Exhibit 38, "Case officer again provided details of the 18 location and directions to the Iranian IAEA mission and went 19 over M's role in dropping off the packet," correct? 20 A. Correct. 21 Q. And again, C/O, case officer, that's you? 22 A. That's me. 23 Q. Okay. 24 Merlin asked for an emergency contact number that he could use 25 while he was in Vienna, correct? And in paragraph 5, it discusses the fact that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 49 of 232 PageID# 5301 Robert S. - Cross 584 1 A. Correct. 2 Q. And you gave him your cell phone number, correct? 3 A. Correct. 4 Q. So it says, "C/O" -- case officer -- "provided his cell 5 phone number . . .." 6 A. Correct. 7 Q. But you gave him very explicit instructions to use that 8 only in the case of emergency, correct? 9 A. That's you, correct? A life-threatening emergency or he had been arrested or 10 something along those lines. 11 Q. 12 potential problems -- potentially serious problems could result 13 if he were to use it for anything other than that kind of an 14 emergency, correct? 15 A. I did. 16 Q. And it was your assessment that it was unlikely that he 17 would make use of this lifeline in anything short of a 18 life-threatening situation, correct? 19 A. 20 wrong. 21 Q. 22 version of the cover letter, correct? 23 A. Yes. 24 Q. And that's reflected in paragraph 3, right? 25 A. Right. Okay. And, in fact, you warned him very explicitly that That was my assessment, which, of course, turned out to be And the plan was for Merlin to carry with him a sanitized Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 50 of 232 PageID# 5302 Robert S. - Cross 585 1 Q. Now, was there a plan in terms of how he was to do that, 2 whether he was to carry a piece of paper that had a sanitized 3 version of the letter with him or whether he was going to carry 4 a diskette that had it on there? 5 A. It was the latter, a diskette. 6 Q. Okay. 7 out some of the information that was in there that would reveal 8 what this was about in case somebody got ahold of that letter 9 before he was able to deliver it, correct? And when you say "sanitized," he was going to take 10 A. Yes. And also specific references to the target country. 11 Q. But the template for the letter he would have, and then he 12 could add back in the stuff that he had sanitized when he got 13 to Vienna, correct? 14 A. Correct. 15 Q. And so the expectation at least on your part would be that 16 the version of that cover letter that he would deliver in 17 Vienna would match the version that he has on his home 18 computer, correct? 19 A. It would certainly be close. 20 Q. And it was also the plan, was it not, that Merlin would 21 leave contact information so that the Iranians could get back 22 to him if they were interested? 23 A. Correct. 24 Q. And specifically, he was going to leave a post office box 25 in the United States, correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 51 of 232 PageID# 5303 Robert S. - Cross 586 1 A. Correct. 2 Q. In fact, an important part of his legend was that he lived 3 in the United States, correct? 4 A. It would have been impossible to deny that. 5 Q. And you -- not only could he not deny it, but 6 specifically, he was going to leave them a post office box in 7 the United States where they could reply to him? 8 A. Correct. 9 Q. And the way that you conclude this cable in paragraph 6, 10 you say everything is all ready to go. The C/O, that's you, 11 case officer, was satisfied with Merlin's degree of preparation 12 and commitment, correct? 13 A. Correct. 14 Q. And you say, ". . . and now it is up to luck," correct? 15 A. Yes. 16 Q. And you scheduled with Merlin a meeting for March 9, which 17 would be after he returned from Vienna, for him to debrief you 18 as to what happened in Vienna, correct? 19 A. Correct. 20 Q. And you did, in fact, meet with Merlin on March 9 as 21 planned, correct? 22 A. Along with Mr. Sterling, yes. 23 Q. Right. 24 is a cable that reflects the meeting between you, Mr. Sterling, 25 and Merlin after he returned from Vienna, correct? And let's look at Government's Exhibit 44. This Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 52 of 232 PageID# 5304 Robert S. - Cross 587 1 A. Correct. 2 Q. And in paragraph 3, Merlin told you that he had difficulty 3 finding the Iranian mission despite the explicit directions 4 that he had received from you. 5 A. Correct. 6 Q. And, in fact, you already knew that, correct? 7 A. Because he had called me. 8 Q. While in Vienna, he called you on your cell phone, 9 correct? 10 A. Correct. 11 Q. Not because his life was being threatened or because he 12 was arrested, correct? 13 A. Correct. 14 Q. Because he was having trouble finding the building despite 15 the explicit directions you had given him, correct? 16 A. Correct. 17 Q. And he had been instructed not only he should only use the 18 cell phone number in an emergency; he had also been instructed 19 that if he did use the cell phone number, he should do it from 20 a pay phone, correct? 21 A. Correct. 22 Q. But, in fact, he used it in clearly a not life-threatening 23 situation. 24 A. Yes. 25 Q. And he made the phone call from the hotel that he was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 53 of 232 PageID# 5305 Robert S. - Cross 588 1 staying at, correct? 2 A. That's what he told us. 3 Q. Now, let's go to page 205 of the book, so Exhibit 132, and 4 look at the second-to-last paragraph on that page. 5 says, "After his day of floundering around Vienna, the Russian 6 returned to his hotel near the city's large" -- is it 7 "Stadtpark"? 8 A. "Stadtpark," yeah. 9 Q. Okay. It How do you pronounce it? It means city park. And was that, in fact, was the hotel he stayed at 10 near that park? 11 A. Yes. 12 Q. And he did a computer search and found the right street 13 address for the mission, correct? 14 A. That's what the book says. 15 Q. Understood that's what the book says. 16 already informed him of the right street address? 17 A. Many times. 18 Q. Right. 19 center, the hotel's computer to fill back in the portions of 20 his cover letter that he had sanitized, correct? 21 A. He was. 22 Q. You don't know one way or another whether he used that 23 hotel business center to get on the Internet to also look for 24 directions to the mission, do you? 25 A. In fact, you had And he was supposed to use the hotel business I don't know. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 54 of 232 PageID# 5306 Robert S. - Cross 589 1 Q. What you do know is that he was having trouble finding the 2 mission despite having explicit directions? 3 A. So he told me. 4 Q. And then in paragraph 4 of Exhibit 44, it says at the very 5 end of that page that finally, he left the package very clearly 6 addressed to Iranian Subject No. 1 in the locked mailbox right 7 outside the mission door, right? 8 A. Correct. 9 Q. And that's what he told you in that meeting? 10 A. He did. 11 Q. Now, it was your assessment that -- let's look at 12 paragraph 6 -- that Merlin demonstrated once again that he was 13 unable to follow even the simplest and most explicit direction, 14 correct? 15 A. That was my assessment. 16 Q. Did Merlin tell you that he did not leave a post office 17 box as contact information? 18 A. No, he did not tell me that. 19 Q. Did he tell you that the diskette that he took with him to 20 Vienna with the sanitized version of the letter, that he 21 destroyed that diskette in Vienna? 22 A. I believe he did. 23 Q. And you never saw a final version of the letter, correct? 24 A. No, I didn't. 25 Q. But that final version would continue to reside on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 55 of 232 PageID# 5307 Robert S. - Cross 590 1 Merlin's home computer, correct? 2 A. Yes. 3 Q. Depending on what Merlin did with it, correct? 4 A. Well, also depending on what changes he made in Vienna 5 with the sanitized version, but fundamentally, it would -- it 6 should reside on his home computer unless he removed it. 7 don't know. 8 Q. 9 other than possibly an Iranian who read it, Merlin's the only Well, perhaps not. Fair enough. I don't know. I In other words, Merlin's the only person 10 person who knows for sure what was in that final version, 11 correct? 12 A. Correct. 13 Q. He did not bring a copy of the letter, the as-delivered 14 letter back with him? 15 A. No, he didn't. 16 Q. Now, he had not been instructed to take photographs of the 17 mission, correct? 18 A. Correct. 19 Q. In fact, he was instructed not to, wasn't he? 20 A. Correct. 21 Q. But he did. 22 A. Yes, he did. 23 Q. And he showed them to you in New York during this 24 debriefing session, correct? 25 A. Correct. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 56 of 232 PageID# 5308 Robert S. - Cross 591 1 Q. And I think you testified on direct that the last you saw 2 of them, they were still in New York, right? 3 A. That's my recollection. 4 Q. Okay. 5 photos back with him and says that he destroyed them? 6 A. I don't know. 7 Q. Now, who wrote Government Exhibit 44, the one detailing 8 this debriefing meeting? 9 A. Do you know whether Merlin, in fact, took those It looks like it was a joint product between Mr. Sterling 10 and me. 11 Q. 12 primary drafter, somebody who drafted it first, and then -- 13 A. 14 Mr. Sterling was sitting at the next terminal. 15 Q. 16 3 loaded? When you say "joint product," would there have been a I probably was the primary drafter, although I suspect And then -- Mr. Francisco, do you have Defendant's Exhibit 17 MR. FRANCISCO: 18 MR. POLLACK: I do. Your Honor, I'd like to call up what 19 would be Defendant's Exhibit 3, which was handed up to the 20 Court yesterday. 21 understanding is the government has no objection to its 22 admission. It's the document that has C00115, and my 23 THE COURT: Is that correct? 24 MR. TRUMP: Correct, Your Honor. 25 THE COURT: All right, then it's in. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 57 of 232 PageID# 5309 Robert S. - Cross 592 1 (Defendant's Exhibit No. 3 was received in evidence.) 2 MR. POLLACK: 3 Now, Your Honor, these exhibits are not in the cable book that the jury has. 4 THE COURT: 5 MR. POLLACK: I have copies -- Let's just put it on the screen. Okay. That's fine, Your Honor. 6 Q. Defense Exhibit 3 -- would it be easier for you, Mr. S., 7 if you have a hard copy in front of you, or is the screen fine? 8 A. I would prefer a hard copy. 9 MR. POLLACK: Mr. Wood, do you mind? 10 THE WITNESS: Thank you. Thank you. 11 BY MR. POLLACK: 12 Q. 13 March 13 of 2000, correct? 14 A. Yes. 15 Q. So this is four days after the debriefing? 16 A. Yes. 17 Q. And in paragraph 1, it has the address of the Iranian 18 mission in Vienna? 19 A. I don't see the address. 20 Q. At the end of paragraph 1. 21 A. Oh, yes. 22 Q. And that address is? 23 A. 19 Heinestrasse. 24 Q. So it's got the, not just the street name but the street 25 number? Defendant's Exhibit 3 is a cable that you authored on There it is. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 58 of 232 PageID# 5310 Robert S. - Cross 593 1 A. Correct. 2 Q. And that's in the cable that you wrote, correct? 3 A. Correct. 4 Q. Now, in the cable of the debriefing meeting that was 5 authored at least in part by Mr. Sterling, 44, the address of 6 the mission does not appear, correct? 7 A. 8 cooperating services, who had not previously been told that he 9 was directed to deliver it to that address. That had a different purpose. This is a notification to That's why it's 10 included here. 11 Q. 12 purpose, I am correct, am I not, that that address does not 13 appear in the cable that was coauthored by Mr. Sterling? 14 A. Correct. 15 Q. And in paragraph 2 of Defendant's Exhibit 3, which is a 16 cable authored by you -- correct? 17 A. Correct. 18 Q. You talk about the plans that were delivered, correct? 19 A. Correct. 20 Q. And you refer to them as the firing set plans, correct? 21 A. Correct. 22 Q. Now, you had testified earlier that there is no technical 23 difference between a "firing set" and "fire set." 24 ways to refer to the same thing, correct? 25 A. Okay. Understanding that the cables have a different That's my impression of it. They're two If you were to ask a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 59 of 232 PageID# 5311 Robert S. - Cross 594 1 technical person, they might be more explicit, but my degree is 2 in history, not in physics or electronics. 3 Q. 4 understanding. 5 interchangeable? 6 A. The terms are interchangeable, yes. 7 Q. Okay. 8 author is "firing set," correct? 9 A. Yes. 10 Q. Okay. 11 term "firing set" or "fire set," right? 12 A. Correct. 13 Q. Because the Russians refer to this same item as a 14 high-voltage block, correct? 15 A. Or an automatics block. 16 Q. Okay. 17 A. High-voltage switch he sometimes called it. 18 Q. And again, to your understanding, those three terms are 19 all interchangeable, correct? 20 A. Correct. 21 Q. And they're also interchangeable with "firing set" and 22 "fire set." 23 thing, correct? 24 A. Yes. 25 Q. Okay. I understand. And I'm only asking you about your Your understanding is that those terms are But the term that you use here in a cable you And Merlin on the other hand did not use either the And again -So -- All five of the terms essentially mean the same But the term that Merlin used was "high-voltage Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 60 of 232 PageID# 5312 Robert S. - Cross 595 1 block," correct? 2 A. 3 or the high-voltage switch. 4 Q. 5 "high-voltage block"? 6 A. Correct. 7 Q. And would not use "firing set" or "fire set"? 8 A. Well, I never saw anything that he wrote. 9 occasionally in our discussions, I would call it a high-voltage Not always. Okay. Sometimes he called it the automatics block So one of the terms that Merlin would use is I think 10 block, and he would call it a fire set, you know, in oral 11 discussions. 12 THE COURT: We can take the picture off the screen. 13 BY MR. POLLACK: 14 Q. 15 were interviewed by the FBI on February 28 of 2006. 16 recall telling the FBI interviewing agents that the 17 term "high-voltage block" is a Russian term and the term used 18 by Merlin; "fire set" was not a term used by Merlin? 19 A. 20 In all of his drafts, he called it a high-voltage block or 21 something along those lines. 22 any of his draft messages, that's correct, but I cannot state 23 that he never said "fire set" to me or I didn't say 24 "high-voltage block" to him in an oral discussion. 25 Q. Again, understanding you don't recall precise dates, you Okay. Not regularly. Do you Certainly not in anything he wrote. He didn't call it a fire set in Let's look at page 195 of chapter 9. And if we can look Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 61 of 232 PageID# 5313 Robert S. - Cross 596 1 at the last full paragraph that begins, "To be precise"? 2 A. Um-hum. 3 Q. "To be precise, he" -- meaning Merlin -- "was carrying the 4 technical designs for a TBA 480 high-voltage block, otherwise 5 known as a 'firing set' . . .." 6 So the term Mr. Risen uses, "high-voltage block," is 7 the precise term that you told the FBI was the term that was 8 used by Merlin, correct? 9 A. That is the Russian name for the device. 10 Q. And the term that Mr. Risen puts in quotation 11 marks, "firing set," is the term that you use in the cable 12 that's Defendant's Exhibit 3, correct? 13 A. I along with many other English speakers. 14 Q. During the time that Mr. Sterling was involved in 15 Classified Program No. 1, you would agree with me, would you 16 not, that the term that was typically used in all of the cable 17 traffic was "fire set," not "firing set"? 18 A. 19 other of us called it, but again, cables and draft letters to 20 Iranians are far more formal than oral discussion. 21 Q. 22 can you think of a single cable that was authored by 23 Mr. Sterling that used the term "firing set"? 24 A. I have not conducted that review. 25 Q. And in -- you're not suggesting your cables were any more I haven't reviewed every cable to see what one or the Now, in the far-more-formal-than-oral-discussions cables, I presume you have. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 62 of 232 PageID# 5314 Robert S. - Cross 597 1 formal than Mr. Sterling's cables, are you? 2 A. No. 3 Q. And in your cables, we've seen you did use the 4 term "firing set," correct? 5 A. Yes. 6 Q. Okay. 7 partial paragraph? 8 9 If we can go to page 198 of the book, the first This is talking about the meeting in the San Francisco hotel room, correct? 10 A. Correct. 11 Q. And it says that a senior CIA official -- now, is it your 12 assumption that that is a reference to you? 13 A. Yes. 14 Q. Brought in experts from one of the National Laboratories 15 to go over the blueprints that he was supposed to give -- "he" 16 being Merlin -- was supposed to give to the Iranians. 17 Now, first of all, "blueprints" is not a term that 18 you used, correct? 19 A. No. 20 Q. Do you know if Merlin ever used the term "blueprints"? 21 A. No, not to my recollection. 22 correct, what is stated there. 23 Q. In terms of the National Laboratory representative? 24 A. Correct. 25 Q. Thank you. And, of course, it is not That is not correct. I was just going to get to that. In fact, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 63 of 232 PageID# 5315 Robert S. - Cross 598 1 there wasn't actually a person from the National Lab there, 2 correct? 3 A. No, there was not. 4 Q. There was a former Russian engineer, Mr. G., correct? 5 A. Former Russian by which you mean current American? 6 Q. Correct. 7 A. Yes. 8 Q. In fact, current CIA officer, right? 9 A. Correct. 10 Q. He wasn't with the National Labs; he was with the CIA? 11 A. Correct. 12 Q. But he had a background as a Russian engineer, correct? 13 A. He did. 14 Q. And this was -- Mr. G. was known to Merlin as Len, 15 correct? 16 A. That's correct. 17 Q. And Merlin had private conversations with this person, 18 with Len, at the San Francisco meeting, correct? 19 A. Correct. 20 Q. Now, Mr. Sterling knew that Mr. G. was not from the 21 National Lab; he was from the CIA, correct? 22 A. He knew that, and Merlin knew that. 23 Q. You believed that Merlin knew that? 24 A. We told him. 25 Q. Okay. Did Merlin ever get confused about that point and Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 64 of 232 PageID# 5316 Robert S. - Cross 599 1 indicate to you that he thought there was somebody there from 2 the National Labs? 3 A. Not to me. 4 Q. Okay. 5 before the trip, Merlin was getting cold feet? 6 A. Yes. 7 Q. And that you worked hard over a series of meetings to 8 assess that, and you told the FBI that you had to convince him 9 to move forward, correct? We discussed a moment ago that you sensed that 10 A. Yes, to stop his acting out. 11 Q. And you're not aware -- well, you were the one who had to 12 convince him. 13 A. 14 Mr. Sterling did as well. 15 Q. 16 referred to as C/O -- case officer, correct? 17 A. Yes. 18 Q. And page 197 of the book, in the paragraph in the middle 19 of the page that starts with "The case officer," that very 20 first sentence says, "The case officer worked hard to convince 21 him," and it says, "even though the officer had doubts about 22 the plan as well." That's what you told the FBI? I think I played a major role in that, although And in that last meeting in the cable we saw that you were 23 Now, you didn't have any doubts about the plan, 24 correct? 25 A. No. So this is not a reference to me. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 65 of 232 PageID# 5317 Robert S. - Cross 600 1 Q. Well, are you sure of that? 2 A. I am. 3 Q. How are you sure that when Mr. Risen talks about a case 4 officer that had to work hard to convince Merlin to go forward, 5 that it's not the person who's referred to in a cable in the 6 last meeting as case officer, when you yourself had to work 7 hard to convince him? 8 A. 9 clearly not a reference to me. Because if you read the rest of the paragraph, it's 10 Q. So in other words, if it is a reference to you, the latter 11 part of the paragraph is inaccurate, correct? 12 A. Yes. 13 Q. And you would agree with me that some of what is in 14 chapter 9 is accurate, correct? 15 A. Some of it. 16 Q. And some of what is in chapter 9 is not accurate, 17 correct? 18 A. Correct. 19 Q. Now, let's go to page 205 of chapter 9, the last 20 paragraph. 21 Heinestrasse. 22 A. Spelled wrong, but it's the same place. 23 Q. Yeah. 24 you know the proper spelling? 25 A. It says that by 8:00 a.m., he found 19 You're familiar enough with Austrian streets that Correct. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 66 of 232 PageID# 5318 Robert S. - Cross Okay. 601 1 Q. And then it says on the next page, 206, the last 2 full paragraph, at 1:30 p.m., he got a chance to look inside 3 the gate, correct? 4 A. That's what it says. 5 Q. Now, you don't recall Merlin in his debriefing ever 6 mentioning the precise times that he found the building or the 7 time that he got inside, correct? 8 A. I do not recall that. 9 Q. But Merlin would obviously know those times, correct? 10 A. If he recalls them, yes. 11 Q. Now, the debriefing meeting that occurred on March 9, 12 after Merlin got back from Vienna, was a meeting that both you 13 and Mr. Sterling attended, correct? 14 A. Correct. 15 Q. Now, I believe that you testified on direct that you 16 recall Mr. Sterling having met with Merlin alone in advance of 17 that meeting between the two of you, or did I miss something? 18 A. 19 Merlin and the news was good. 20 him or Merlin sent him an e-mail or -- I don't know what 21 happened, but I do recall that when I went into that meeting on 22 the 9th, I knew that things had gone well. 23 Q. Any meeting with an asset is supposed to be documented? 24 A. It is. 25 Q. Documented in a cable? Mr. Sterling told me that he had heard something from So I don't know whether he met Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 67 of 232 PageID# 5319 Robert S. - Cross 602 1 A. Yes. 2 Q. And your testimony is that you recall 15 years later that 3 there was a meeting between Mr. Sterling and Merlin that was 4 never documented? 5 A. 6 had informed me that things had gone well. 7 Q. Okay. 8 A. That's my recollection. 9 Q. It was not a significant enough interaction that you told That's not what I said. I said I recall that Mr. Sterling Was that the extent of the interaction? 10 Mr. Sterling that a cable needed to be done, correct? 11 A. 12 before, and we were going to have a meeting which then 13 documented everything. 14 Q. 15 to page 198, the first partial paragraph, and it references the 16 wine-tasting trip that was done in conjunction with the 17 meetings in San Francisco? 18 A. Yes. 19 Q. And it says "Sonoma Country" rather than "Sonoma County," 20 correct? 21 A. It does. 22 Q. Some kind of a conflation between Wine Country and Sonoma 23 County? 24 A. 25 I'm not sure. No, because I believe this was the day of or the day Now, one thing -- well, let's go back to -- let's go back Perhaps an editing problem with Mr. Risen's publisher. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 68 of 232 PageID# 5320 Robert S. - Cross 603 1 Q. But in any event, the fact that you and Mr. Sterling and 2 the Merlins went to Wine Country in conjunction with San 3 Francisco's meetings is documented in a cable, correct? 4 A. It is. 5 Q. But what is not documented in a cable is specifically that 6 it was in Sonoma County, correct? 7 A. That is correct. 8 Q. And you are the one who selected Sonoma County, correct? 9 A. Yes. 10 Q. You know wines, Mr. S.? 11 A. I do. 12 Q. And you have a distinct preference for Sonoma County wines 13 over Napa County wines, correct? 14 A. 15 Sonoma wine. 16 Q. And this meeting took place in 1998, correct? 17 A. Yes. 18 Q. And 16-17 years later, you remember that it was Sonoma 19 that you went to? 20 A. 21 in Healdsburg Square, in the heart of Sonoma Wine Country 22 County -- Wine Country, whatever. 23 Q. 24 an independent recollection of that 16 years later because that 25 was of significance to you because you know wine, correct? Basically, I prefer a pinot noir to cabernet. I do prefer I remember specifically our having lunch in a restaurant And even though that's not documented anywhere, you have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 69 of 232 PageID# 5321 Robert S. - Cross 604 1 A. That's correct. 2 Q. And it's a detail that whoever Mr. Risen spoke to 3 remembered that detail even though it's not documented? 4 A. Correct. 5 Q. Now, when you were interviewed by the FBI in 2006, you 6 were asked about a passage of the book that appears on page 7 206, so I'm going to call up the paragraph that begins, "At 8 1:30 p.m." 9 and you recalled, did you not, that Merlin -- the paragraph You were asked specifically about that paragraph, 10 mentions that amongst other things, the mailbox was on the left 11 side of the door? 12 A. Yes. 13 Q. And you recalled in 2006 Merlin having mentioned that the 14 box was on the left side of the door, correct? 15 A. That's my recollection. 16 Q. That information is not in any cable, that it was the left 17 side of the door. 18 A. Okay. 19 Q. Well, let's look at Exhibit 44. 20 meeting. 21 A. Um-hum. 22 Q. In paragraph 4, it says that the locked mailbox was right 23 outside the mission door, correct? 24 A. Yes. 25 Q. It doesn't say it was to the left? That's the debriefing Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 70 of 232 PageID# 5322 Robert S. - Cross 605 1 A. It does not. 2 Q. And then let's look at Defense Exhibit 3, and paragraph 1. 3 Toward the end of the paragraph, it says that the locked 4 mailbox was immediately adjacent to the door, correct? 5 A. Yes. 6 Q. It doesn't say it was on the left side, correct? 7 A. No. 8 Q. But yet you recalled in 2006 that it was on the left side? 9 A. I do, and that's partially based on the photograph that 10 Merlin took and showed us. 11 Q. 12 correct? 13 A. Correct. 14 Q. And in 2006, you recalled from that photograph that the 15 mailbox was on the left side of the door? 16 A. 17 remember things much better when I see a picture than just 18 reading it or hearing it. 19 Q. 20 recalled in 2003, 2004, and 2005, correct? 21 A. I might have, yes. 22 Q. Now, in -- if we can go back to that same paragraph on 23 page 206 of State of War, it says that Merlin covered the 24 package in an old newspaper. 25 A. Okay. So Merlin showed you a photograph in March of 2000, That was my recollection. Okay. I'm a visual person. I So presumably, that was a fact that you would have Do you see that? Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 71 of 232 PageID# 5323 Robert S. - Cross 606 1 Q. And Merlin was not instructed to cover the package in an 2 old newspaper, was he? 3 A. He was not. 4 Q. He wasn't instructed to cover it in a newspaper at all, 5 correct? 6 A. Correct. 7 Q. And the fact that he covered it in a newspaper is not in 8 any cable, correct? 9 A. Correct. 10 Q. But in 2006, you told the FBI that you recalled Merlin 11 having, having mentioned the newspaper? 12 A. 13 newspaper that was already in it, and he stuck that in front of 14 it. That's my recollection. 15 Q. That's your recollection today? 16 A. Today I'm recollecting what he told us in 2000. 17 Q. Right. 18 2003 and 2004 and 2005, correct? 19 A. Yes. 20 Q. Even though it's not reflected in any cable? 21 A. Correct. 22 Q. And that fact that you recalled that's not in any cable is 23 in Mr. Risen's book? 24 A. I don't follow you, sir. 25 Q. The fact that Merlin covered the plans in a newspaper, a Yes. He said he put the package in, and he had a And so you certainly would have recalled that in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 72 of 232 PageID# 5324 Robert S. - Cross 607 1 fact that is not in any cable but a fact that you recall, ends 2 up in Mr. Risen's book, correct? 3 A. That's correct. 4 THE COURT: Since we're talking about that chapter, 5 did Merlin provide you-all with a letter as described in that 6 chapter? 7 8 It's quoted. THE WITNESS: Yes. My recollection is that he did not. 9 THE COURT: 10 THE WITNESS: 11 THE COURT: All right. To me anyway. All right. 12 BY MR. POLLACK: 13 Q. 14 information? 15 A. No, I'm not. 16 Q. But they are facts that you recall? 17 A. I recall Merlin saying it orally, and I recall his showing 18 a picture which certainly showed the mailbox is to the left. 19 don't recall whether it showed the newspaper in front of the 20 package. 21 Q. 22 beginning of the chapter, correct? 23 A. So you're not aware of any document that reflects this I Now, chapter 9, on pages 193 and 194 -- 193 is the very Yes. 24 MR. TRUMP: 25 MR. POLLACK: Your Honor, this was discussed pretrial. I'm certainly going to -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 73 of 232 PageID# 5325 Robert S. - Cross 1 THE COURT: 608 Let me hear the question first. 2 hear the question first. 3 BY MR. POLLACK: 4 Q. 5 that Mr. Risen reports occurred in 2004, correct? 6 A. This material on pages 193 and 194 reflects an incident That's what it says. 7 8 MR. TRUMP: I'm objecting to the form of the question, Your Honor. 9 THE COURT: Well, I don't see -- I don't think that's 10 a problem. 11 hear the next question. 12 BY MR. POLLACK: 13 Q. 14 correct? 15 A. That's my understanding. 16 Q. And had not been for quite some time? 17 A. That's my understanding. 18 Q. You were still employed by the CIA in 2004? 19 A. Correct. 20 I'll overrule that objection. Go ahead, let me In 2004, Mr. Sterling was no longer employed by the CIA, THE COURT: 21 BY MR. POLLACK: 22 Q. You can take it off the screen. On page 2006 -- I'm sorry, 206, it -- Mr. Risen -- 23 THE COURT: 24 MR. POLLACK: 25 Let me What paragraph? I'm sorry, Your Honor. The paragraph in the middle of the page that begins, "He came back that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 74 of 232 PageID# 5326 Robert S. - Cross 609 1 afternoon." 2 Q. 3 Austrian postman, correct? 4 A. Correct. 5 Q. The fact that there was an Austrian postman is not 6 reflected in any cable, correct? 7 A. Correct. 8 Q. That's a fact that you recalled in 2006? 9 A. Yes. Mr. Risen references the fact that Merlin observed an That's a fact that Merlin in his debriefing told us 10 about. 11 Q. 12 plans being covered in newspaper, there being a postman there, 13 those are three facts that are not in any document that you 14 recall that Mr. Risen reports, correct? 15 A. So that would be like the mailbox being to the left, the Correct. 16 MR. POLLACK: 17 THE COURT: Your Honor, can I have just a moment? Just a moment. 18 BY MR. POLLACK: 19 Q. 20 after the Russian dropped off his package at the Iranian 21 mission, the NSA reported that an Iranian official in Vienna 22 abruptly changed his schedule and suddenly made airline 23 reservations and flew home to Iran." 24 25 On page 207, if we can go to paragraph 74? "Just days I believe that you testified that to your knowledge, that's not accurate, correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 75 of 232 PageID# 5327 Robert S. - Cross 610 1 A. That's what I testified, and that is my knowledge. 2 Q. All right. 3 the NSA had reported that information, correct? 4 A. It's not accurate. 5 Q. All right. 6 correct? 7 A. Correct. 8 Q. Mr. Risen had to have gotten that from somewhere, right? 9 A. Right. And certainly you never told Mr. Sterling that So you certainly never told Mr. Sterling that, 10 MR. TRUMP: Objection. 11 THE COURT: Sustained. That's purely speculative. 12 BY MR. POLLACK: 13 Q. 14 on a story about Classified Program No. 1, correct? 15 A. Correct. 16 Q. And you -- I mean, did you learn about that from somebody 17 higher up at the CIA? 18 A. I did. 19 Q. And you knew that it was a topic of discussion amongst 20 some of your superiors at the CIA? 21 A. Yes. 22 Q. Amongst some of the generals, as you would put it? 23 A. Yes. 24 Q. And you certainly hoped that Mr. Risen would not publish 25 such a story, correct? In April of 2003, you learned that Mr. Risen was working Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 76 of 232 PageID# 5328 Robert S. - Cross 611 1 A. Yes. 2 Q. And it's your understanding the generals at the CIA hoped 3 that he would not publish such a story, correct? 4 A. That's my understanding. 5 Q. In -- 6 THE COURT: 7 here for two hours. 8 morning break. 9 Well, I think at this point, we've been I'm going to let the jury take their We'll recess until 10 of. (Recess from 11:30 a.m., until 11:51 a.m.) 10 (Defendant and Jury present.) 11 12 THE COURT: All right, Mr. Pollack, I'm told you'll wrap this up in about ten minutes, correct? 13 MR. POLLACK: 14 THE COURT: That's correct, Your Honor. All right. 15 BY MR. POLLACK: 16 Q. 17 from intelligence sources that the plans had been taken from 18 Vienna back to Iran, correct? 19 A. Correct. 20 Q. You didn't have firsthand knowledge of that, correct? 21 A. No. 22 Q. And intelligence sources are not always correct; is that 23 fair? 24 A. That is correct. 25 Q. If I can have you turn to page 203 of the book, paragraph Mr. S., you had testified on direct that you had learned Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 77 of 232 PageID# 5329 Robert S. - Cross 612 1 50? There's a quote here that Mr. Risen attributes to the 2 Russian, and the quote is, "I spent a lot of time to ask people 3 as I could," and then he puts parenthetically "[language 4 problem] and they told me that no streets with this name are 5 around." 6 Is there any cable or, or other document that you're 7 aware of that reflects this language? 8 A. No. 9 Q. Do you know whether this is, in fact, something that 10 Merlin said? 11 A. I do not know that. 12 Q. Okay. 13 been available to Mr. Sterling that would have reflected that 14 quote? 15 A. No. 16 Q. Now, in April of 2003, when you learned that Mr. Risen was 17 working on a story about Classified Program No. 1, Mr. Sterling 18 was no longer employed by the agency, correct? 19 A. That's my understanding. 20 Q. And he had not been working on Classified Program No. 1 21 for about three years at that point? 22 A. That is correct. 23 Q. And had not had access to the cable traffic for three 24 years at that point? 25 A. And you're not aware of any cable that would have Correct. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 78 of 232 PageID# 5330 Robert S. - Cross 613 1 Q. You continued to be read into Program No. 1, correct? 2 A. Correct. 3 Q. And you continued to have access to the cable traffic, 4 correct? 5 A. Yes. 6 Q. If we can pull up Exhibit 15? 7 This is a cable that reflects a meeting with Zach W. 8 and, and Mr. Sterling with Merlin, paragraph 2. 9 A. Okay. 10 Q. And shortly after you learned that Mr. Risen was working 11 on a story about Classified Program No. 1, you accessed this 12 document? 13 A. Correct. 14 Q. And there will be a stipulation entered about this later, 15 but I can represent to you that CIA records reflect that on 16 April 11, 2003, you accessed this document. 17 A. Okay. 18 Q. And will you look at Exhibit 35? 19 again, if you can go to that paragraph No. 2? -- between 20 Mr. Sterling and Merlin? 21 A. Yes. 22 Q. And on May 8, 2003, you accessed this document, correct? 23 A. I don't know that -- 24 Q. Okay. 25 A. -- but I'm sure if the record shows that, that I did. 35 reflects a meeting -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 79 of 232 PageID# 5331 Robert S. - Cross Fair enough. 614 1 Q. Let's do it that way. I'll represent to you 2 that CIA records reflect that. 3 A. Okay. 4 Q. And they also reflect that on that same day, May 8, 2003, 5 you also accessed Exhibit 38, and Exhibit 38 is the document 6 that reflects the meeting that you had alone with Merlin, 7 correct? 8 A. Yes. 9 Q. The reason that you were accessing these documents at this 10 time was so that you could provide information to your 11 superiors who were engaged in an effort to try to prevent or 12 dissuade Mr. Risen from publishing a story about Classified 13 Program No. 1, correct? 14 A. 15 assist Agent Hunt in her inquiries, but I was directed by my 16 superiors to review the program. 17 Q. 18 published, correct? 19 A. Yes. 20 Q. And at that point, any effort by the CIA to dissuade 21 Mr. Risen from publishing about Classified Program No. 1 was 22 too late, correct? 23 A. Yes. 24 Q. And at that point, you knew that the FBI was again 25 investigating, correct? I'm not sure of that. I think it might also have been to Yes, I was. And in 2006, in January of 2006, State of War was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 80 of 232 PageID# 5332 Robert S. - Cross 615 1 A. Yes. 2 Q. And that that investigation could focus on you? 3 A. I was told that I was not a suspect, but, of course, 4 anything's possible. 5 Q. 6 attended -- this is a cable about a meeting that you attended 7 with Mr. Sterling, correct? 8 A. Yes. 9 Q. And Merlin? 10 A. Yes. 11 Q. And I'll represent to you that CIA records reflect that in 12 January and February of 2006, you accessed this cable six 13 times. 14 throughout, the FBI told you that you were not at all a suspect 15 in their investigation? 16 A. By 2006, they did. 17 Q. At any point, at any point, did the FBI ever ask you for 18 your phone records? 19 A. No. 20 Q. Did they ever review your computer? 21 A. I don't know that. 22 Q. Your home computer? 23 A. Not to my knowledge. And if we look at Exhibit 33, this is a meeting that you 24 Even though you had access to Classified Program No. 1 25 MR. POLLACK: Thank you. I don't have anything further. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 81 of 232 PageID# 5333 Robert S. - Redirect 616 1 THE COURT: All right, any redirect? 2 MR. TRUMP: Thank you, Your Honor. 3 REDIRECT EXAMINATION 4 BY MR. TRUMP: 5 Q. 6 information to James Risen? 7 A. No. 8 Q. Directly or indirectly? 9 A. Directly or indirectly, I have never had any contact with I'll start at the end, Mr. S. Did you provide any 10 Mr. Risen. 11 Q. 12 cleared for this program with information about Classified 13 Program 1 or Human Asset No. 1? 14 A. No. 15 Q. Now, you were asked some questions about Merlin's legend? 16 A. Yes. 17 Q. And that sometimes a legend has to be a mix of truth and 18 fiction? 19 A. Yes. 20 Q. But in Merlin's case, almost all of it was true, correct? 21 A. Almost all of it, yes. 22 that he was doing it for the CIA. 23 Q. 24 about a suicide in Russia. 25 A. Have you ever provided anyone who was not read in and What was missing, of course, was Now, you were asked about some mention in Mr. Risen's book Do you recall that? I do. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 82 of 232 PageID# 5334 Robert S. - Redirect 617 1 Q. That's public information, correct? 2 A. It is. 3 Q. Now, you were first interviewed by the FBI in 2003? 4 A. Yes. 5 Q. And at that time, you were also asked by your superiors to 6 do some research? 7 A. Yes. 8 Q. And so you looked at not just the cables that defense 9 counsel mentioned, but you looked at a lot of the stuff in the 10 files? 11 A. All of the cables, yes. 12 Q. And in 2006, you actually sat down with FBI agents at a 13 terminal and went through cable after cable after cable; is 14 that correct? 15 A. With the specific approval of my superiors, yes. 16 Q. And the agents at the time were also cleared for the 17 program, correct? 18 A. Yes. 19 Q. And you were interviewed in 2010? 20 A. Yes. 21 Q. And 2011? 22 A. Yes. 23 Q. And at all times, you were cooperative? 24 A. Yes. 25 Q. Honest? As I did again in 2006. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 83 of 232 PageID# 5335 Robert S. - Redirect 618 1 A. Yes. 2 Q. Forthcoming? 3 A. Yes. 4 Q. You also provided them with access to Merlin, correct? 5 A. Correct. 6 Q. And you facilitated that access? 7 A. Yes. 8 Q. When you first discussed this program with, with the 9 defendant, Mr. Sterling, you gave him the hard file, correct? 10 A. 11 arranged for him to have access to the complete electronic 12 file. 13 Q. 14 read in and working with you at headquarters at CPD? 15 16 Yes, although that was less significant than that I So he had everything in Classified Program 1 when he was MR. POLLACK: Your Honor, I realize it's redirect, but it's still a leading question. 17 THE COURT: Sustained. 18 BY MR. TRUMP: 19 Q. 20 was read into the program? 21 A. Everything that I knew about the program. 22 Q. At your offices in Langley, can you take documents without 23 being inspected or searched? 24 A. I can. 25 Q. It's an honor system, right? What information did you provide to the defendant when he Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 84 of 232 PageID# 5336 Robert S. - Redirect 619 1 A. Well, there's periodic spot-checks. 2 Q. But coming and going in the building, CIA employees are 3 not searched; is that right? 4 A. Correct. 5 Q. Same is true in New York, right? 6 A. Yes. 7 Q. You were asked some questions about access lists? 8 A. Yes. 9 Q. And at some point, did CPD provide the FBI with a list of 10 people who had, at one time or the other had been read into 11 Classified Program No. 1? 12 A. Yes, I've seen a copy of that. 13 Q. The number that counsel threw out, that was a number for 14 the entire -- 15 THE COURT: Wait, wait, wait. That's going to be a 16 leading question; I can tell from the form. 17 BY MR. TRUMP: 18 Q. 19 of the program? 20 A. Yes. 21 Q. Did that number reflect the number of people who were 22 given access at a particular point in time? 23 A. No. 24 Q. So, for example, Zach W., he would be on such a list, 25 correct? Was the number that you provided for the entire time frame Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 85 of 232 PageID# 5337 Robert S. - Redirect 620 1 A. He would. 2 Q. After he was read out of the program, would he retain 3 access to the program? 4 A. No. 5 Q. Do you recall the questions about the percentage of flaws 6 that were discovered by the Red Team? 7 A. I do. 8 Q. Can you tell us whether spotting a flaw means being able 9 to fix a flaw? 10 A. Not necessarily. 11 Q. And even if -- based on your understanding of this Red 12 Team project, had they spotted all the flaws, does that mean it 13 would work? 14 A. 15 you fixed one, others would appear, and also, it was missing 16 two key components. 17 Q. The discussion of the letters, the draft letters? 18 A. Yes. 19 Q. Did you work on those with the defendant? 20 A. Yes. 21 Q. Together? 22 A. Yes. 23 Q. Did you discuss language together? 24 A. Yes. 25 Q. Did you make some suggestions about language together to No, because the flaws were designed to nest, so that if Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 86 of 232 PageID# 5338 Robert S. - Redirect 621 1 Merlin? 2 A. Yes. 3 Q. In that regard, did you think the defendant was doing a 4 good job? 5 A. I did. 6 Q. The money issues with Merlin, did they come up every 7 January? 8 A. Pretty much. 9 Q. And in January, was his accounting different than your 10 accounting? 11 A. Yes. 12 Q. When it says you paid him $66,000, does that reflect you 13 paid him for the salary of $66,000 that he believed he was owed 14 for the whole year? 15 MR. POLLACK: 16 THE COURT: Sustained. 17 MR. TRUMP: I'm just trying to move things along, THE COURT: Well, I'll move it on but just no 18 Objection. Leading. Judge. 19 20 leading. 21 BY MR. TRUMP: 22 Q. 23 him $66,000? 24 A. 25 was over whether he had been paid for one month in the previous Would you explain what you meant when you said you paid That was a year salary or 11 months probably. The dispute Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 87 of 232 PageID# 5339 Robert S. - Redirect 622 1 year or he had not, and as I say, his records were different 2 from ours. 3 Q. So the actual cash that you paid him was the difference? 4 A. No, I paid him the entire amount. 5 Q. The entire amount for the year? 6 A. Yes. 7 Q. In Exhibit 36, did you note in that cable that Merlin was 8 actually right about some of his accounting? 9 MR. POLLACK: 10 THE COURT: 11 BY MR. TRUMP: 12 Q. 13 accounting? 14 A. That again is leading. Sustained. What is in the cable about the reference to Merlin and his Could you point me to a -- 15 16 Objection. THE COURT: itself. Well, I think the cable speaks for Let's move this along, Mr. Trump. 17 THE WITNESS: 18 THE COURT: But -There's no question pending, sir. 19 BY MR. TRUMP: 20 Q. Cable 36. 21 A. Yes. 22 Q. Was that a cable sent to New York by you? 23 A. Yes. 24 Q. To the defendant? 25 A. He would certainly be the prime reader. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 88 of 232 PageID# 5340 Robert S. - Redirect 1 Q. 2 with Merlin? And did it provide him with directions to do something 3 4 623 MR. POLLACK: Objection. It's leading. It's also not -- 5 THE COURT: Well, that's not sufficiently leading 6 that I'm going to -- let's move this along, but I want -- 7 BY MR. TRUMP: 8 Q. 9 some direction to take to Merlin? Was the purpose of the cable to provide the defendant with 10 A. Yes. 11 Q. The final meeting you had at the hotel -- 12 A. Yes. 13 Q. -- was there any, was there any discussion of the 14 schematics? 15 A. No, not that I recall. 16 Q. Any discussion of any concern about the schematics? 17 A. Definitely not. 18 Q. At the final meeting, there was a discussion of maps and 19 streets and plans and things like that? 20 A. Yes. 21 Q. Had that been discussed at a prior meeting? 22 A. Yes, it had. 23 Q. Was the defendant present at that prior meeting? 24 A. Yes. 25 Q. Was it detailed? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 89 of 232 PageID# 5341 Robert S. - Redirect 624 1 A. Yes. 2 Q. Was there anything about your discussions with Merlin in 3 Exhibit 38 about the plan not something that was previously 4 discussed with the defendant? 5 A. No. 6 Q. Do you recall some questions about whether Merlin had made 7 any sort of racist comments? 8 A. Yes, I recall questions. 9 Q. When he made the comment that you referred to in your 10 direct, what did you say to him? 11 A. 12 there was a black person in the neighborhood? 13 Q. Correct. 14 A. I said to him, "You are in America. 15 become an American. 16 person might well be wondering whether he should move into that 17 area because a newly arrived Russian immigrant is there. 18 people have been in the United States for 400 years. 19 out. 20 Q. 21 attitude change over time? 22 A. Yes, it did. 23 Q. Now, I believe you actually were asked by the judge 24 certain questions about concerns that were expressed to you by 25 Mr. Sterling? When he asked about whether he should buy a house because You are wanting to You've got to cut that out. That black His Cut it Become an American." And from what you observed, did his attitude, did his Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 90 of 232 PageID# 5342 Robert S. - Redirect 625 1 A. Yes. 2 Q. Did he have a mentor at the CIA? 3 A. He did. 4 Q. Someone you knew? 5 A. I didn't know him personally. 6 a famous man. 7 Q. He was one of those generals we talked about? 8 A. Yes. 9 Q. So you are aware that Mr. Sterling had someone to talk to I certainly knew -- he was I knew his position well. 10 about these concerns? 11 A. I was aware. 12 Q. This collaborative process between, in terms of writing a 13 letter, did some of that occur at the New York office? 14 A. Yes. 15 Q. Side by side with the defendant? 16 A. Yes. 17 Q. Would you describe how you did that? 18 A. Well, oftentimes, it occurred in the hotel meeting site 19 before we would meet with Merlin. 20 arrive early, and we'd discuss changes we'd want to make -- we 21 wanted to get Merlin to make, and we'd have half an hour to an 22 hour to plan for the session before he arrived. The defendant and I would 23 And then most often, we would go over the meeting 24 that had occurred the next day back in the New York office. 25 This is standard procedure. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 91 of 232 PageID# 5343 Robert S. - Redirect 626 1 Q. When you went back to the office, did you work together on 2 drafting the cable? 3 A. Yes. 4 Q. How did you do that? 5 A. Well, one or the other of us would do a first draft and 6 immediately show it to the other and add or correct anything 7 that the other party thought needed to be changed. 8 Q. 9 over it? Did you print it out and sit next to each other and go 10 A. We'd usually look at it on the computer screen. 11 Q. And you made edits? 12 A. Real time. 13 Q. In other words, whatever you knew, he knew? 14 MR. POLLACK: 15 THE COURT: Objection. Sustained. 16 BY MR. TRUMP: 17 Q. 18 right side, the building? 19 A. Yes. 20 Q. Would, would anyone going to Vienna be able to make those 21 observations? 22 A. You were asked questions about the door and left side, Yes. 23 MR. TRUMP: The Court's indulgence? 24 THE COURT: Yes, sir. 25 MR. TRUMP: One moment, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 92 of 232 PageID# 5344 Robert S. - Recross/Stephen Y. - Direct 1 That's all, Your Honor. 2 THE COURT: 3 MR. POLLACK: 4 627 All right, any recross? Yes, Your Honor, very briefly. RECROSS EXAMINATION 5 BY MR. POLLACK: 6 Q. 7 that Merlin saw an Austrian postman while he was there? 8 A. No. 9 Q. Would they be able to observe that Merlin covered the Mr. S., would anybody going to Vienna be able to observe 10 plans with an old newspaper? 11 A. No. 12 MR. POLLACK: 13 THE COURT: That's all I have. All right. 14 testimony. 15 You may leave the building. 16 Thank you. Mr. S., thank you for your It's been a long haul, but you're finished now. Thank you. 17 (Witness excused.) 18 THE COURT: 19 MR. FITZPATRICK: 20 THE COURT: 21 Your next witness? Stephen Y., Your Honor. Stephen Y. STEPHEN Y., GOVERNMENT'S WITNESS, AFFIRMED 22 MR. FITZPATRICK: 23 Thank you, Your Honor. DIRECT EXAMINATION 24 BY MR. FITZPATRICK: 25 Q. Good afternoon, sir. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 93 of 232 PageID# 5345 Stephen Y. - Direct 628 1 A. Good afternoon. 2 Q. Are you Stephen Y.? 3 A. Yes, correct. 4 Q. Have you had a career with the CIA? 5 A. Yes, I have. 6 Q. And for how long is that career? 7 A. For over 20 years. 8 Q. And were you a case officer or an operations officer? 9 A. Yes, I was. 10 Q. Was there a point in time when you were assigned to the 11 New York office? 12 A. Yes. 13 Q. Were you assigned to the New York office on September 11 14 of 2001? 15 A. Yes, I was. 16 Q. For how long had you been in that office, roughly? 17 A. Several years. 18 Q. And was there a point in time during your stay in the New 19 York office where you were an acting supervisor? 20 A. That's correct. 21 Q. During your time in New York, did you meet a person by the 22 name of Jeffrey Sterling? 23 A. Yes, I did. 24 Q. Do you see Mr. Sterling in the courtroom today? 25 A. Yes. Steve Y. Mr. Sterling is seated at the table to my right. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 94 of 232 PageID# 5346 Stephen Y. - Direct 629 1 MR. FITZPATRICK: 2 THE COURT: 3 MR. FITZPATRICK: May the record reflect, Your Honor? Yes. Thank you. 4 Q. When -- do you approximately know when you met him? 5 A. It would have been around 2000. 6 Q. Did there come a point in time when you assumed 7 responsibilities for an individual by the name of Merlin, or 8 Human Asset No. 1? 9 A. Yes, there was a time when I assumed responsibility. 10 Q. And from whom did you assume that responsibility for the 11 handling case officer? 12 A. From Mr. Sterling. 13 Q. Describe how that changeover took place. 14 A. Well, we would have a plan, a discussion first, and then 15 there would be a meeting in a secure location. 16 Q. 17 and others? 18 A. 19 20 And do you recall having that meeting with Mr. Sterling Yes, that's correct. MR. FITZPATRICK: witness Government Exhibit No. 47, please. 21 THE COURT: 22 MR. FITZPATRICK: 23 THE COURT: 24 MR. FITZPATRICK: 25 Your Honor, I'd like to show the All right. It's been previously admitted. Yes. Mr. Francisco, if you could pull up the first two paragraphs? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 95 of 232 PageID# 5347 Stephen Y. - Direct 630 1 Q. Mr. Y., do you see that in front of you? 2 A. Yes, I do. 3 4 THE COURT: 2000? Well, just for the record, that's May 25, Is that the date? 5 MR. FITZPATRICK: 6 THE COURT: 7 So the jury has a sense of the time. All right. 8 9 That's correct. MR. FITZPATRICK: Q. Yes, Your Honor. It's a cable dated May 25, 2000. Have you previously seen 10 a version of this document? 11 A. Yes. 12 Q. And there's a reference there to a Mr. Y.? 13 A. Yes. 14 Q. Is that you? 15 A. Yes. 16 Q. And what does this document reflect? 17 A. This is an account of a meeting, a changeover meeting. 18 Q. And who else was in attendance? 19 A. Mr. Sterling and myself. 20 Q. And were there other people involved in the meeting as 21 well? 22 A. (Nodding head.) 23 Q. Who was -- for this operation, using just the first name 24 and the last initial, who was the, the operation manager, for 25 lack of a better -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 96 of 232 PageID# 5348 Stephen Y. - Direct 631 1 A. Bob S. 2 Q. And what about the human asset? 3 A. What was -- 4 Q. Was he in attendance as well? 5 A. Yes, of course. 6 Q. All right. 7 Yes, he was. You can close the exhibit. Thank you. Now, prior to -- when you became involved in this 8 operation regarding Mr. Merlin, we'll call him, did you gain 9 access to the cable traffic for the operation? 10 A. Yes. 11 Q. Prior to taking on this assignment, were you allowed 12 access to this program? 13 A. No, not prior to planning for the, the changeover meeting. 14 Q. So when you became assigned to the program, in effect, you 15 educated yourself on the program? 16 A. That's correct. 17 Q. Did you also speak to Mr. Sterling? 18 A. Yes. 19 Q. And what was the purpose of speaking to Mr. Sterling? 20 A. To sort of get a feel for the, for the asset, how he is, 21 what kind of a relationship there may be, and that would be, of 22 course, beneficial for me. 23 been set up so if we needed to contact him, how I would be able 24 to do that. 25 Q. Also, what kind of contact plan had And when you had this discussion with Mr. Sterling, what, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 97 of 232 PageID# 5349 Stephen Y. - Direct 632 1 if any, operational concerns did he raise with you? 2 A. He didn't raise any concerns with me. 3 Q. Can you tell us, what is a soft file? 4 A. A soft file is sort of a working file that we maintain. 5 It usually has the information that you need at your 6 fingertips, so things that you would like to keep and be able 7 to look at quickly. 8 9 So we keep, it's just a regular manila file, and inside would be contact instructions, maybe telephone number or 10 contact plan in order to -- and plus some information about 11 when the next scheduled meeting might be, and it's kept in a, 12 just a soft manila file. 13 Q. 14 case officers? 15 A. Yes, it is. 16 Q. And are these personal files? 17 A. No, they're official files. 18 us, but they're official files; that's correct. 19 Q. And how are they maintained? 20 A. At the, at the conclusion of the day before you would 21 leave to go, to go home or to leave to go to an event or 22 whatever, these are stored in a secure, a secure vault, a 23 secure drawer, a safe drawer, and we would put it in there and 24 secure the, secure the safe. 25 Q. Is the, the maintenance of a soft file customary among They have to be maintained by And what is the purpose of maintaining the security of a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 98 of 232 PageID# 5350 Stephen Y. - Direct 633 1 soft file? 2 A. 3 about him, also to protect the information that may have been 4 obtained from him, and also to protect, you know, a contact 5 plan information that you may need at a later date. 6 Q. 7 necessary for that particular case officer cable traffic within 8 a soft file? 9 A. Well, it's to protect the asset's identity and information Would you maintain -- or would a case officer maintain if Yes, there would be some select cables in there. Cable 10 traffic would be maintained in there. 11 Q. 12 case officer's soft file? 13 A. The case officer himself. 14 Q. Now, you said that you were in the New York office for at 15 least a couple of years. 16 A. That's correct. 17 Q. If a case officer desired to break protocol and take a 18 soft file away from the office, would that be possible? 19 A. 20 21 Your Honor, I'm going to object to the form of the question and the speculation as well. THE COURT: that question. 24 25 Yes. MR. MAC MAHON: 22 23 And who decides what information goes into an individual I think there's a better way of asking I'm going to sustain the objection. MR. FITZPATRICK: Q. Thank you, Your Honor. What, if any, security measures are in place to measure a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 99 of 232 PageID# 5351 Stephen Y. - Direct 634 1 case officer's behavior with respect to soft files? 2 A. 3 vault at the end of the evening. 4 Q. 5 that Mr. Sterling had, didn't raise any operational concerns 6 with you about Mr. Merlin, or Human Asset No. 1. 7 right? 8 A. That is correct. 9 Q. And this was in May 25, 24-25, 2000, correct? 10 A. That's correct. 11 Q. When you educated yourself on this program, did you become 12 aware of a significant event that had happened several months 13 earlier? 14 A. That is correct, yes. 15 Q. And do you have a recollection, was this in short form the 16 Vienna operation? 17 A. Yes. 18 Q. Now, when that took place, did you have any access to this 19 program? 20 A. When the Vienna operation actually occurred? 21 Q. Yes. 22 A. No, I did not. 23 meeting. 24 Q. 25 with him in the New York office, did you have other discussions There were none other than the fact of securing it in a You previously responded to one of my questions by saying Is that Not until the time before the changeover In your discussions with Mr. Sterling, when you overlapped Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 100 of 232 PageID# 5352 Stephen Y. - Direct 635 1 with him about other matters? 2 A. 3 for new prospective activities or things that we wanted to try 4 to do. 5 Q. 6 you? 7 A. Not very open. 8 Q. Now, with respect to the maintenance of soft files, did 9 you receive any soft file from Mr. Sterling? Yes, about some ideas, you know, ideas we might have for, How would you characterize Mr. Sterling's openness with No, not very open. 10 A. No, I did not. 11 Q. So when you became the primary handling officer, did you 12 create your own soft file? 13 A. Yes. 14 15 THE COURT: Did you ever ask Mr. Sterling, if you can recall, for a soft file? 16 THE WITNESS: 17 THE COURT: No. I never asked for it, no. Okay. 18 BY MR. FITZPATRICK: 19 Q. 20 operation that you're aware of maintained within the New York 21 office back in -- 22 A. No. 23 Q. -- prior to 2001? 24 A. No. 25 Q. Was it the practice in the New York office for case And in addition, were there other files related to this Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 101 of 232 PageID# 5353 Stephen Y. - Direct 636 1 officers, did you have the ability to print cables from your 2 duty station? 3 A. Yes. 4 Q. What -- describe for us, please, you said that you were 5 assigned to the New York office on September 11 of 2001. 6 A. Yes. 7 Q. What happened to your office on that day? 8 A. It was destroyed, totally destroyed. 9 Q. Did you make an effort or was there any effort to get your 10 files back from that office? 11 A. 12 completely destroyed. 13 Q. What, if anything, did you recover from your office? 14 A. I didn't recover anything from the office. 15 Q. To your knowledge, was anyone able to recover anything 16 from the office? 17 A. Well, there was, there was an effort, but the building was Not to my knowledge. 18 MR. FITZPATRICK: I want to show the witness -- this 19 has not been admitted yet -- I want to show the witness 20 Government Exhibit No. 75, please. 21 THE COURT: Is there any objection to 75? 22 MR. MAC MAHON: 23 this witness, Your Honor. 24 limine. 25 Objection to using this exhibit with We talked about this in a motion in This is unfair the way this is coming in. THE COURT: Well, to be honest, I don't recall what Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 102 of 232 PageID# 5354 Stephen Y. - Direct 1 637 the previous objection was. 2 MR. MAC MAHON: Well, the witness has already 3 testified that the office was destroyed. 4 cumulative and unnecessary, Your Honor, in the way it's coming 5 in. 6 7 MR. FITZPATRICK: I'm going into another line of questioning. 8 9 This would be THE COURT: All right. Well, let's pass on this now. Do you have another line of questioning? 10 MR. FITZPATRICK: 11 THE COURT: Well, it was in relation to this. Related to this? Well, let me hear what 12 your question is. 13 BY MR. FITZPATRICK: 14 Q. 15 office, what, if any, concerns do case officers have about 16 maintaining the secrecy of those offices? 17 A. 18 work there as well as the information that may be contained 19 there, which would be coming from some of our sources and 20 activities. 21 22 All right. With respect to the identity of the New York Well, it's for the protection of all the officers that THE COURT: In other words, you don't want your field offices' locations being identified. 23 THE WITNESS: 24 THE COURT: 25 That is correct. Yes, yes, Your Honor. Ask the question directly. BY MR. FITZPATRICK: Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 103 of 232 PageID# 5355 Stephen Y. - Direct 638 1 Q. Do you know, do you know James Risen? 2 A. No, sir. 3 Q. Have you ever spoken with him? 4 A. No. 5 6 MR. FITZPATRICK: Government Exhibit 75. 7 8 THE COURT: the questioning. 9 It's self-authenticated. I'm going to permit it. It's relevant to It's in. MR. FITZPATRICK: 10 Your Honor, I would move in Thank you. (Government's Exhibit No. 75 was received in 11 evidence.) 12 BY MR. FITZPATRICK: 13 Q. 14 Government Exhibit 75? Going back to -- if we could just put up on the screen 15 Now, Mr. Wood had shown you this just a couple of 16 moments ago. 17 A. Yes. 18 Q. And you've seen this article before? 19 A. Yes. 20 Q. Are you the source for Mr. Risen in this article? 21 A. No. 22 Q. All right, thank you. 23 You're familiar with this article? THE COURT: And I think that wasn't shown to the 24 jury, but we should get a date to make it relevant to the case, 25 the date of the article. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 104 of 232 PageID# 5356 Stephen Y. - Direct 1 2 639 MR. FITZPATRICK: Oh, yes, Your Honor. It's November 4, 2001. 3 THE COURT: All right. 4 MR. FITZPATRICK: 5 If we could show the witness Government Exhibit 35, Thank you. 6 please? And, Mr. Francisco, if we could go to the second page, 7 please? 8 Q. Mr. Y.? 9 A. Yes. 10 Q. On the second page of that cable, there is a text of a 11 letter, and it begins: 12 "To University." Do you see that? 13 A. Yes, I do. 14 Q. And are you familiar with this? 15 A. Yes, I've seen this letter before. 16 Q. And was this one of the cables that you viewed back in 17 May 24, thereabout, when you became familiar with this case? 18 A. Yes. 19 Q. Have you disclosed the contents of this letter to anyone 20 outside of the CIA? 21 A. No. 22 Q. With respect to any hard copies of this letter, did you 23 maintain a hard copy of this letter? 24 A. 25 No. MR. MAC MAHON: Your Honor, objection to foundation. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 105 of 232 PageID# 5357 Stephen Y. - Cross 1 640 If he ever had a hard copy of the letter. 2 THE COURT: All right, ask that question first. 3 BY MR. FITZPATRICK: 4 Q. In what other forms, if any, did you have this letter? 5 A. Only in the, in the traffic. 6 Q. Did you ever -- with respect to documents that were 7 maintained by you, did you receive anything from the human 8 asset? 9 A. No. 10 Q. If you had, what would have occurred to that document? 11 12 MR. MAC MAHON: That was it. Your Honor, objection. He said he didn't receive one. 13 THE COURT: 14 MR. FITZPATRICK: 15 Nothing further, Your Honor. 16 THE COURT: 17 MR. MAC MAHON: 18 I'm going to sustain the objection. All right. One moment, Your Honor. All right, Mr. MacMahon? Thank you, Your Honor. CROSS-EXAMINATION 19 BY MR. MAC MAHON: 20 Q. Mr. Y., good afternoon. 21 A. Good afternoon. 22 Q. If I say "why" and it's part of a question, I apologize if 23 it's your last name, it's our first Y. 24 25 Do I understand your testimony correctly that at the New York office, that -- and this was a secure facility, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 106 of 232 PageID# 5358 Stephen Y. - Cross 641 1 correct? 2 A. Yes. 3 Q. Are you telling this jury that a CIA case officer could 4 come and go as they pleased with all the documents that they 5 wanted to? 6 A. Yes. 7 Q. There was no, no spot-checks, no nothing, huh? 8 A. No spot-checks, no. 9 Q. And you never saw Mr. Sterling leave the office with any 10 documents, did you? 11 A. No, I've never seen that. 12 Q. No. 13 No. You never saw that, correct? Do you know how many other articles there were 14 published in, after September 11 that disclosed that the CIA's 15 office in New York was destroyed other than the one that they 16 just showed the jury? 17 A. No, I don't, I don't know how many were written. 18 Q. You didn't look to see if there were other ones, correct? 19 A. No, I did not. 20 Q. And you have no idea who this source was for that story? 21 A. No. 22 Q. Now, when you -- you, you thought that Mr. Sterling was 23 very difficult to work with, correct? 24 A. Yes. 25 Q. All right. And that's what you told the FBI in 2006, that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 107 of 232 PageID# 5359 Stephen Y. - Cross 642 1 he had a high opinion of himself? 2 A. Yes. 3 Q. And when you, when you took over for Mr. Sterling, I think 4 your testimony was that there was no soft file that existed, 5 correct? 6 A. No, I said I never received one from Mr. Sterling. 7 Q. And you never asked him for one, either, did you? 8 A. No. 9 Q. In fact, you don't know whether he even kept one, do you? 10 A. Well, to the best of my recollection, I don't recall 11 asking him for it, no. 12 Q. Okay. 13 A. Well, it would be standard practice to maintain one, so -- 14 Q. Right. 15 A. No, I don't. 16 Q. And you don't know where he would have maintained any 17 documents in a soft file at all, correct? 18 A. 19 had in his file drawer. 20 Q. How far was your office from his? 21 A. Oh, 20 feet or so, 10 feet. 22 best of my recollection. No. No. You don't recall ever seeing him -- how -- But you don't know what he did, do you? I wouldn't be looking at his, you know, the things he 23 THE COURT: 24 THE WITNESS: 25 THE COURT: Between 10 or 20 feet to the I'm sorry, you said "file drawer." Right. Did each agent have his own drawer then? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 108 of 232 PageID# 5360 Stephen Y. - Cross 1 2 THE WITNESS: 643 Yeah, that's exactly it. would be assigned one drawer. 3 THE COURT: 4 THE WITNESS: 5 And was there a lock or any kind of a -Oh, yeah. It's a very heavily secured safe. 6 7 Each one THE COURT: Well, that's the safe, but within the safe, would each drawer have its own lock? 8 THE WITNESS: 9 THE COURT: 10 No. THE WITNESS: So you could -One, one combination would open the 11 entire four-drawer safe, but there would be multiple safes. 12 that's the way it was done. 13 drawers, and then they would be lined up in a row, and each 14 officer would have his own, his own drawer to put his stuff in. 15 16 THE COURT: that safe -THE WITNESS: 18 THE COURT: Yes, I did. -- then you could also look at the other drawers within that safe. 20 THE WITNESS: 21 THE COURT: 22 25 Yes, that's correct. All right. Could you look at what was in another safe? 23 24 Each one would have about four But my question is if you had a drawer in 17 19 So THE WITNESS: No, just the one that you had access to. THE COURT: You only had access, all right. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 109 of 232 PageID# 5361 Stephen Y. - Cross 1 THE WITNESS: 2 THE COURT: 644 That's correct. Go ahead. 3 BY MR. MAC MAHON: 4 Q. 5 Mr. Sterling kept a soft file dealing with Classified Program 6 No. 1, correct? 7 A. No, I have, I have no knowledge. 8 Q. And you have no knowledge that Mr. Sterling kept a soft 9 file with respect to any of his dealings with Mr. Merlin, So, Mr. Y., you have no personal knowledge at all that 10 correct? 11 A. No, I have no knowledge of that. 12 Q. And you never -- when you took over for Mr. Sterling as 13 the case officer for Mr. Merlin, it's a fact that you never 14 asked Mr. Sterling for any documents you thought might be 15 missing from the file, correct? 16 A. That's correct. 17 Q. And you made an exhaustive review of the file when you 18 took over as a case officer, correct? 19 A. 20 well, so that would be the ones where I would have read the 21 past information. 22 Q. 23 testimony would be that at no time did you think by reading a 24 cable that there was something missing, correct? 25 A. Well, I have access to the information electronically as But when you read through all that past information, your No, not by reading in an electronic cable. How would I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 110 of 232 PageID# 5362 Stephen Y. - Cross 645 1 know what's missing? 2 Q. 3 and say, "Do you have something else?" 4 A. No. 5 Q. And you, you told the FBI that it was against CIA policy 6 to use e-mails in communicating with assets, correct? 7 A. That's correct. 8 Q. And you don't have any information that Mr. Sterling ever 9 did that, do you? Nothing you read ever prompted you to call Mr. Sterling No, I don't recall if he did. Right? 10 A. 11 recollection, I don't know. 12 Q. 13 devices during debriefings. 14 training, correct? 15 A. Yes. 16 Q. And you don't have any information that Mr. Sterling ever 17 did that, either, do you? 18 A. No. 19 Q. And you knew by the time that you met Mr. Sterling in New 20 York that he was in litigation with the CIA over a 21 discrimination case, correct? 22 A. No, I did not. 23 Q. He never told you about that? 24 A. No, he did not. 25 Q. And by the time the story that the -- I'll strike that, Yeah. To the best of my And the same with respect to using recording That's completely against your To the best of my recollection. I was not aware of that. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 111 of 232 PageID# 5363 Stephen Y. - Redirect 1 646 Your Honor. 2 Let me consult with Mr. Pollack for a second? 3 THE COURT: 4 MR. MAC MAHON: 5 Thank you, sir. 6 THE COURT: 7 Go ahead. No further questions, Your Honor. All right, redirect? REDIRECT EXAMINATION 8 BY MR. FITZPATRICK: 9 Q. Was there a policy regarding removing soft files from the 10 office? 11 A. Yes. 12 Q. What was the policy? 13 A. The policy is you could not take home any soft files or 14 information. 15 Q. As a case officer, what is your secrecy agreement? 16 A. It says that all the information that I acquire on 17 anything I can't discuss beyond working with my colleagues, my 18 coworkers. 19 Q. 20 closely held or classified documents? 21 A. 22 installation. 23 Q. And did that include the soft file? 24 A. That's true, yes, sir. 25 Q. Were all case officers trained in this regard? It was forbidden. What does the secrecy agreement say about the handling of That it must be secured and kept only in an official Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 112 of 232 PageID# 5364 Stephen Y. - Recross 1 A. 647 Oh, yes. 2 MR. FITZPATRICK: 3 THE COURT: 4 MR. MAC MAHON: 5 Any recross? Just very briefly, Your Honor. RECROSS EXAMINATION 6 BY MR. MAC MAHON: 7 Q. Again, this -- excuse me, I'll go to the podium. 8 9 I have nothing further. You were asked questions about taking soft files out of your office. Do you remember that? You have no evidence at 10 all that Jeffrey Sterling ever took a soft file out of his 11 office in New York or anywhere else; isn't that correct? 12 A. To the best of my recollection. 13 Q. Right. 14 soft file, right? 15 A. And you don't even have evidence that he had a No, sir. 16 MR. MAC MAHON: 17 THE COURT: testimony is finished. 19 THE WITNESS: All right, thank you, Mr. Y. 18 20 That's all, Your Honor. Thank you. Your You're excused. Okay. Thank you (Witness excused.) 21 THE COURT: I think rather than breaking into another 22 witness, it's easier to just move forward and have our lunch 23 break now, and then we'll start -- is the next witness 24 Denis M.? 25 MR. TRUMP: Yes, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 113 of 232 PageID# 5365 648 1 2 How long do you anticipate that witness MR. TRUMP: This is a screen witness, whereas the to be? 3 4 THE COURT: next two would not be, so if we want to do it now, we can. 5 THE COURT: Well, I don't think he's up here. 6 There's no more witnesses here, right? 7 I don't think there's one here. We didn't call for one. 8 THE COURT SECURITY OFFICER: No. 9 THE COURT: No. 10 MR. TRUMP: So if you want to go to the unscreened 11 witnesses after lunch, we can put him in with the next three 12 remaining screened witnesses. 13 THE COURT: All right, so we have two unscreened 15 MR. TRUMP: Correct. 16 THE COURT: We'll start those at quarter of two, just 14 17 witnesses. a one-hour lunch break, just 15 minutes earlier. 18 All right, so we will need -- over the lunch break, 19 we need to push the screen back so that those two witnesses can 20 be seen publicly. 21 counsel knows? Who will those witnesses be so defense 22 MR. TRUMP: Mr. Harlow and Ms. Rice. 23 THE COURT: All right, so everybody has those two on 24 25 board. All right. So, ladies and gentlemen, I'm giving you your lunch Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 114 of 232 PageID# 5366 649 1 break a little bit earlier today. 2 back here promptly at quarter of two, and we'll see you-all 3 then. 4 It is one hour, so please be We'll recess court. (Recess from 12:45 p.m., until 1:45 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 115 of 232 PageID# 5367 Harlow - Direct 1 650 A F T E R N O O N 2 S E S S I O N (Defendant and Jury present.) 3 THE COURT: Mr. Trump, call your next witness. 4 MR. TRUMP: Mr. Harlow. 5 THE COURT: Mr. Harlow. 6 MR. TRUMP: Yes. 7 THE COURT: All right. 8 No, he's outside. WILLIAM HARLOW, GOVERNMENT'S WITNESS, AFFIRMED 9 10 He's outside, correct? MR. TRUMP: Mr. Wood, he'll need the binder with exhibits in the hundred series. 11 DIRECT EXAMINATION 12 BY MR. TRUMP: 13 Q. Would you please state your name? 14 A. William Harlow. 15 Q. Would you spell your last name? 16 A. H-a-r-l-o-w. 17 Q. Were you formerly employed at the CIA? 18 A. Yes, I was. 19 Q. What was your title? 20 A. I was the Director of Public Affairs. 21 Q. And what, what was your term there? 22 A. I was there from 1997 until 2004. 23 Q. Did you serve in the military? 24 A. Yes, I did. 25 Q. When did you begin your military service? What -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 116 of 232 PageID# 5368 Harlow - Direct 651 1 A. I was commissioned in 1972 and served on active duty in 2 the Navy until I retired to take the job at the CIA in 1997. 3 Q. 4 the military? 5 A. 6 the Navy, so I served in jobs dealing with the news media, 7 public communication, information. 8 in London and Japan, a lot of time in the Pentagon. 9 four years while on active duty as the Assistant Press Prior to working at the CIA, what position did you hold in I was a public affairs specialist for most of my time in I had assignments overseas I served 10 Secretary for National Security Affairs at the White House. 11 That was 1988 to '92. 12 Q. Have you held a Top Secret clearance? 13 A. I'm sorry? 14 Q. Have you held a Top Secret clearance? 15 A. Yes, I have. 16 Q. Since when? 17 A. I believe I got my first Top Secret clearance in 1981. 18 Q. And obviously, as a result of your -- as part of your 19 duties at the CIA, you had to be cleared? 20 A. Absolutely, yes. 21 Q. What, what does the Office of Public Affairs do? 22 A. Well, among the things it does is deal with the news 23 media, respond to public inquiries from, from the media, try to 24 answer questions as we could from, from the media, and other 25 functions involving internal communication with agency Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 117 of 232 PageID# 5369 Harlow - Direct 652 1 employees and other public communications, but the principal 2 part of my job was dealing with the news media. 3 Q. 4 were your responsibilities? 5 A. 6 the, of the Press Office, or the Public Affairs Office, but 7 specifically with the news media, I would receive calls from 8 the media, respond to those calls. 9 try to answer if I could from my personal knowledge; if not, 10 research the question to try to find out what the answer was 11 and respond appropriately. 12 Q. And were you authorized to speak to the media, obviously? 13 A. Yeah. 14 was, was authorized and expected to be the person who would 15 respond to the, to the press on whatever matters they were, 16 they were concerned with. 17 Q. 18 authority? 19 A. I had that authority, yes. 20 Q. Which means what in layman's terms? 21 A. It means I could determine the information that I was 22 creating which I thought needed to be maintained at a certain 23 level of classification within the agency, or within 24 government. 25 Q. And what was your position specifically, Director? What Well, my responsibility was to run the entire operation of They'd have questions. I was the official spokesman for the agency. I'd I And did you have what's called original classification In terms of executing your duties, however, did you always Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 118 of 232 PageID# 5370 Harlow - Direct 653 1 seek authorization from those involved in whatever the activity 2 was for your discussions with the press? 3 A. 4 information already, I knew the information. 5 background that I could respond to the press. 6 occasions, on very sensitive matters or things that I just 7 wasn't personally involved with or aware of, then I would seek 8 out other officials within the agency hierarchy to find out 9 what the facts were in order to be able to respond. Well, there were many occasions where I had the I had the On other 10 Q. Do you know someone by the name of James Risen? 11 A. Yes, I do. 12 Q. And did you have dealings with him over time? 13 A. Yes. 14 the agency, first with the -- he worked for The Los Angeles 15 Times and then later became a correspondent for The New York 16 Times and was a regular caller to our office. 17 Q. 18 phone? direct? e-mail? 19 A. 20 from him and other reporters, but generally, it was telephonic. 21 Q. 22 recall getting a telephone call from Mr. Risen? 23 A. Yes, I do. 24 Q. Do you recall exactly what date? 25 A. I believe it was April 3. He was an intelligence correspondent who dealt with And what was the nature of your communication? Almost always telephonic. Was it Occasionally, we'd get e-mails Let me direct your attention to April of 2003. Do you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 119 of 232 PageID# 5371 Harlow - Direct 654 1 Q. Now, do you, do you and your staff keep a phone log? 2 A. Yes, they do. 3 Q. And how is that phone log kept? 4 A. My administrative assistant would field incoming calls and 5 would write down the time of the call and the caller, and it 6 kept it in a running log. 7 returned the call. 8 time would be noted in the log. 9 minutes, an hour, two hours later. 10 the time of the return phone call. 11 Q. Are these logs kept accurately? 12 A. Yes. 13 Q. And what purpose does it serve for you to have this log? 14 A. Well, it, it ensured that I returned all of the phone 15 calls, which was a very important thing to do, to make sure 16 that I got that, and it would keep a record of who was calling 17 when so that if I needed to go back at a later date and find 18 out, you know, who I spoke to a week before, two weeks before, 19 whenever it was, I'd be able to determine what transpired. 20 Q. 21 22 They would also note the time that I Sometimes I'd answer immediately, and that Other times, I'd call back 15 They'd, they'd write down To the best of my knowledge, they were. Would you look at what's in the binder as Exhibit 105? THE COURT: Is there any exhibit -- any objection to 105? 23 MR. MAC MAHON: No objection, Your Honor. 24 THE COURT: 25 (Government's Exhibit No. 105 was received in All right, it's in evidence then. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 120 of 232 PageID# 5372 Harlow - Direct 1 655 evidence.) 2 MR. TRUMP: Could we have that on the screen? 3 THE COURT: You may. It's in evidence. 4 BY MR. TRUMP: 5 Q. All right. 6 A. This is the phone log from April 3 of 2003. 7 Q. And your name is in the upper right-hand corner? 8 A. That's correct. 9 Q. And do you see an entry for 4:03? 10 A. Yes. 11 Q. And what does that entry indicate? 12 A. It says, "Jim Risen, NYT." 13 Q. And that's New York Times? 14 A. Yes. 15 Q. And the area that's blacked out, those were just the other 16 names of the people who called? 17 A. 18 called during the course of that day. 19 Q. 20 notes? 21 A. Yes, that was my practice. 22 Q. And then if necessary, do you memorialize your notes in a 23 communication to other officials? 24 A. 25 just you would never know, so I'd keep notes on a spiral steno Right. And what is 105? The other, presumably the other reporters who When you receive a call from a reporter, do you take Right. I mean, very frequently it wasn't necessary, but Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 121 of 232 PageID# 5373 Harlow - Direct 656 1 pad as I was talking to a reporter, and then if I needed to go 2 back and repeat anything to somebody either telephonically or 3 in an e-mail internally, I'd, I'd have the material available 4 to me to, to construct that, that communication. 5 Q. And internally, do you call that a Lotus Note? 6 A. That's correct. 7 Q. And did you prepare a Lotus Note of your telephone 8 conversation with Mr. Harlow on April 3? 9 THE COURT: Mr. Risen. 10 BY MR. TRUMP: 11 Q. Excuse me, Mr. Risen on April 3? 12 A. Yes, I did. 13 Q. And you then communicated -- you communicate via Lotus 14 Note with those people who need to know what that conversation 15 was about? 16 A. That's correct. 17 Q. And would you look at Exhibit 106? 18 THE COURT: Any objection to 106? 19 MR. MAC MAHON: 20 THE COURT: 21 (Government's Exhibit No. 106 was received in No objection, Your Honor. All right, it's in. 22 evidence.) 23 BY MR. TRUMP: 24 Q. 25 telephone conversation with Mr. Risen on April 3? Was that the Lotus Note that you prepared of your Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 122 of 232 PageID# 5374 Harlow - Direct 657 1 A. Yes, it is. 2 Q. And was that prepared from your notes? 3 A. Yes. 4 Q. Fairly contemporaneous with the conversation as your 5 duties would allow? 6 A. 7 a couple hours later, I had time to, to create this note, but 8 it was based on my handwritten notes that were made 9 simultaneous to the incoming phone call. Right. It looks like the timing of this was 6:43 p.m., so 10 Q. And what, what did Mr. Risen call about? 11 A. He called and told me that he was working on a story, and 12 he stressed that it wasn't a tomorrow story. 13 get a call late in the afternoon from a reporter, it may be 14 that they're on deadline. 15 Usually if you He said it, you know, wasn't a tomorrow story but 16 implied that it was reasonably soon, and he said that he was 17 writing about a classified CIA program which he said involved 18 the Iranian nuclear program, weapons program, and he told me 19 that this program was, was known by a code name, he used the 20 word "Merlin," and he told me that there was a Russian 21 scientist who had defected to the U.S. who the CIA had arranged 22 to sell some nuclear weapons designs to the Iranians, and he 23 said that these designs had been modified by the National Labs, 24 which is a U.S. organization that is involved with nuclear 25 weapons design, production, and whatever, and they were Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 123 of 232 PageID# 5375 Harlow - Direct 658 1 modified, he told me, so that they wouldn't work or there was 2 some problem with them, and he said that the Russian had given 3 the plans to, to the Iranians in Europe. 4 Q. 5 this subject matter something that you heard about a lot? 6 A. This particular operation? 7 Q. Let me -- I should rephrase it a better way. 8 your calls about other subject matters? 9 A. Let me, let me stop you there. Yes. At this time, 2003, was Were most of This was a few weeks after the launch of the 10 invasion of Iraq. This was 18 months or so into the post-9/11 11 period, so most of the activity I was getting was about 12 terrorism or about the Iraq war, although weapons proliferation 13 is always an important issue, but it wasn't one that I was 14 getting calls on on a daily basis, so this was a little bit out 15 of the blue to me. 16 Q. 17 That code word specifically wasn't "Merlin." 18 precise term? 19 A. That's correct. 20 Q. And you recognized it as a CIA type of code? 21 A. It was a CIA type of code. 22 specifically, but just the way it was formulated struck me as 23 the way we would encode things at the agency. 24 Q. 25 information? And you mentioned that he had used a specific code word. It was a more I didn't recognize it Was that also rare that you would receive that type of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 124 of 232 PageID# 5376 Harlow - Direct Yes. 659 1 A. 2 known to the public, and so if somebody purports to have one of 3 some operation which is current, not historical, that was quite 4 rare and alerting to me. 5 Q. 6 Russian gave the Iranians the plans, did he tell you what the 7 plans involved? 8 A. 9 what he called a fire set, which he said controlled the Okay. Yes. It's very rare that those code words leak or are Let's go on. What did he say -- after he said the He went on to explain, he said the plans involved 10 implosion of the nuclear weapons detonation, and, and he also 11 told me he wasn't sure whether this program was still going on 12 or not but that it, it had started in, in the year 2000 in the 13 previous administration. 14 Q. 15 information provided by Mr. Risen? 16 A. I'm sorry? 17 Q. That summary were all the facts that Mr. Risen provided to 18 you? 19 A. Yes, yes, right. 20 Q. When you typed this note and you quoted the word "fire 21 set," was that a specific term that Mr. Risen had used? 22 A. 23 wanted to put it in quotes to make clear that, that that was 24 the terminology he was using; it wasn't my own interpretation 25 of nuclear weapons design. Have you just summarized the substance of the factual Yes. It was a term specifically that he used; and I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 125 of 232 PageID# 5377 Harlow - Direct 660 1 Q. What did you tell Mr. Risen at this point? 2 A. Well, I, I told him I would check to see if there was 3 anything I could tell him about, about his question, but I also 4 told him that, you know, that if there was such a program, I 5 didn't think a respectable newspaper should be writing about 6 it. 7 didn't think it was, would do any good for that kind of 8 information to be bandied about in the press. 9 Q. How did you leave it with Mr. Risen? 10 A. Only that I would look into it and, and get back to him. 11 Q. Now, did you get a call from another intelligence public 12 affairs officer? 13 A. Yes. 14 Q. And what was that about? 15 A. Another public affairs officer elsewhere in government 16 said he had gotten a similar call from Risen with the same kind 17 of questions. 18 President Clinton -- That is the kind of thing that was highly sensitive, and I 19 20 Later that afternoon, I did. He told me that Risen told him that he knew that MR. MAC MAHON: Your Honor, this is hearsay on top of hearsay. 21 THE COURT: Well, it's not being offered for the 22 truth of its contents. 23 that man had been told or heard. 24 Go ahead. 25 THE WITNESS: It's just being offered to explain what I'm overruling the objection. He told me that, that Risen had told Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 126 of 232 PageID# 5378 Harlow - Direct 661 1 him that he heard that the program had been approved by 2 President Clinton, and he was trying to find out whether it had 3 been reapproved or continued to be approved under the current 4 administration, and he, too, had no immediate comment to Risen, 5 but he was just sharing with me a heads up that he had gotten a 6 similar call. 7 BY MR. TRUMP: 8 Q. Did you get another call the following day? 9 A. Yes, I did. 10 Q. And that was April 4, 2003? 11 A. Yes. 12 MR. TRUMP: And if we could look at 107? 13 THE COURT: Any objection to 107? 14 MR. MAC MAHON: 15 THE COURT: 16 (Government's Exhibit No. 107 was received in No, Your Honor. All right, it's in. 17 evidence.) 18 BY MR. TRUMP: 19 Q. Is that your phone log for the following day? 20 A. Yes, it is. 21 Q. April 4? 22 And did you receive two telephone calls from 23 Mr. Risen? 24 A. Yes. 25 Q. Or -- on the first page of, excuse me, 107, there are two Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 127 of 232 PageID# 5379 Harlow - Direct 662 1 calls listed? 2 A. Yes. 3 Q. And the second page, one? 4 A. One more, right. 5 Q. Sometimes calls are recorded that you don't return right 6 away? 7 A. Yeah, sometimes. 8 Q. But you had one conversation with Mr. Risen on April 4? 9 You only had one conversation on April 4? 10 A. No, no, I don't think so. 11 like I returned it at 11:00; the call at 4:33, I'm not sure 12 what that says; and then there was another call at 6:20. 13 doesn't have a call completed time. 14 that my staff went home before I did, but I think the first 15 call, I may be wrong, but my vague recollection is the first 16 call was unrelated to his call the day before. 17 I think the call at 10:43 looks It That probably just meant The second calls were -- I may be wrong on this, but 18 I think it was -- he may have been talking about multiple 19 things, and the later calls certainly were about this issue. 20 Q. 21 the telephone conversations? 22 A. Yes, I did. 23 Q. And is that memorialized in Exhibit 108? 24 A. Yes. 25 And again, did you prepare notes and then a Lotus Note of MR. MAC MAHON: No objection, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 128 of 232 PageID# 5380 Harlow - Direct 663 1 THE COURT: 2 (Government's Exhibit No. 108 was received in 3 All right, it's in. evidence.) 4 THE WITNESS: And I see from this I'm wrong because 5 the timing of this is, would have been after the first phone 6 call, so the others may have been follow-ups to it but -- 7 BY MR. TRUMP: 8 Q. 9 the previous day? The bottom of that exhibit is simply the e-mail chain from 10 A. That's right. The way it worked is you'd see the whole 11 chain. 12 Q. 13 more details of, of what he discussed the previous day? 14 A. 15 him, and I told him I didn't yet but that I was working on it. 16 Do you want to go -- 17 Q. And what did you, what did you respond? 18 A. I'm sorry? 19 Q. What was your response? 20 A. Well, I, I told him that, that, more about I was 21 questioning why he should want to write about a story like this 22 and told him that, you know, if the facts were correct as he 23 laid them out, which I wasn't confirming, that I told him I 24 thought such a story would jeopardize U.S. security and didn't 25 think it was in anyone's benefit to do so. Now, in this telephone call, did Mr. Risen provide any Yes. Initially, he was asking did I have an answer for Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 129 of 232 PageID# 5381 Harlow - Direct 1 664 And he -- as I say in the note, he responded to me, 2 amazingly enough, that he hadn't really thought through the 3 security implications of the, of that particular article that 4 he was working on. 5 Q. 6 information or the information that Risen had for his story, 7 did you get anything more on April 4 that you didn't have on 8 April 3? 9 A. Let me, let me stop you there. I don't think so. In terms of the factual I think this is mostly him trying to 10 drag out of me: Are you going to answer the question? What's 11 the answer? 12 Q. 13 it left with him? 14 A. 15 the answer. 16 think about how he might adjust the story so that it wouldn't 17 have an impact on national security. And how did you -- when you and Mr. Risen hung up, how was Well, just that I was going to continue to, to try to get 18 He was telling me that he thought -- he would And I'd also had a conversation with him as part of 19 this reminding him of an earlier incident where he had 20 objected, when senior officials at the White House had called 21 his publisher to try to prevent the publication of a very 22 sensitive bit of information, and he -- and his editor had 23 objected to that. 24 together. 25 back to me and think this through," although I didn't think So I told him, you know, "We should work If you don't want that to happen, you should come Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 130 of 232 PageID# 5382 Harlow - Direct 665 1 that there was a way to dumb this story down to make it so that 2 it would be appropriate to put in the paper given the nature of 3 this particular, this particular story. 4 Q. 5 responsibility at this point? 6 A. 7 case would be to reach out to appropriate officials within the 8 agency and ask them: 9 anything about this particular code word that he gave us -- 10 What did you do now? Two phone calls, and what was your When I would get calls like this and what I did in this gave me? 11 What do you know about this? Do you know Is there such an operation? And I'd try to gather information about it so that I 12 could advise senior leadership about if and how to respond. 13 Q. Were you able to gather some information? 14 A. I did. 15 Q. Were you able to determine whether there was, in fact, a 16 program like this? 17 A. 18 he was describing and that it was highly sensitive and was not 19 the kind of information which we would ever have wanted to 20 reach the media. 21 Q. 22 Jeffrey Sterling, come up? 23 A. 24 know at this point who, mentioned to me this was the program 25 that Jeffrey Sterling had been working on or had been involved Yes. I learned that there was a program similar to what In doing that research, did the name of the defendant, Yes. At one point, someone within that group, and I don't Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 131 of 232 PageID# 5383 Harlow - Direct 666 1 in or something like that. 2 Q. Did you know Jeffrey Sterling? 3 A. I knew the name. 4 name. 5 Q. And why was his name familiar to you? 6 A. The previous year, I believe, he filed a lawsuit alleging 7 discrimination against the agency for his treatment while he 8 was a case officer. 9 was in the media quite a bit, and there was a, particularly a 10 story about him and his case written in The New York Times, I 11 believe, by Jim Risen. 12 Q. 13 or did he call you? 14 A. 15 going to think about if there was a way to deal with the story, 16 and so as I recall, there was a period of time when he didn't 17 press the issue and I didn't have a good answer for him other 18 than don't do it. 19 there was another exchange on the specifics of this story. 20 Q. And did that occur on April 25? 21 A. Yes. 22 Q. Of 2003? I never met Mr. Sterling, but I knew his That, that story got a lot of publicity, After gathering the information, did you call Risen back, We were still -- the way I left it with him is that he was 23 So I think there was a gap in time before And could we look at Government 111? 24 A. Okay. 25 Q. And again, was this the phone log of your calls? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 132 of 232 PageID# 5384 Harlow - Direct 667 1 A. Yes. 2 Q. And there were calls reflected from Mr. Risen? 3 A. Yes. 4 Q. And did you talk to him on April 25? 5 A. Yes, I did. 6 Q. Did you prepare notes and then subsequently a Lotus Note 7 of that conversation? 8 A. Yes, I did. 9 Q. And is that Exhibit 112? 10 11 THE COURT: I assume there's no objection to 111 or 112? 12 MR. MAC MAHON: 13 THE COURT: 14 (Government's Exhibit Nos. 111 and 112 were received 15 No, Your Honor. All right. in evidence.) 16 THE WITNESS: Yes, that's the note. 17 BY MR. TRUMP: 18 Q. And about what time did you talk to Mr. Risen on April 25? 19 A. It was about 3:30 in the afternoon. 20 Q. And what did you discuss with him? 21 A. He said he had been considering my previous communication 22 with him urging him to think about it, but he was still working 23 on the story, and then he started to read to me the lead of his 24 story. 25 was fairly well along, because usually by the time a reporter So it was clear to me at this point that the story was, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 133 of 232 PageID# 5385 Harlow - Direct 668 1 has written out the lead and structure of their story, it's 2 getting closer to publication. 3 So he started reading to me the, what he planned to, 4 to write. 5 Q. 6 weapons? 7 A. 8 you know, told me how the story would probably appear in the 9 paper, you know, saying that the U.S. had an ongoing classified And it was the same story about the Iranian nuclear Same story but, but it was more fully laid out, and he, 10 program to derail the Iranian nuclear program and by selling 11 them intentionally flawed diagrams, and then he said something 12 about according to government documents and knowledgeable 13 people. 14 Q. And what did that mean to you? 15 A. You know, that triggered in my mind an alarm bell. 16 stopped and asked him, you know, "Are you telling me that you 17 have documents about some of this stuff?" So I 18 And he said, "Yes." 19 Then he went on to further, you know, read from his 20 draft story, and he said the program was code name Merlin and 21 that it involved a Russian defector pretending to be a 22 scientist willing to sell the firing sets, and he said the deal 23 was eventually made and it was part of a larger program to 24 inject design flaws into the Iranian program. 25 Q. Now, stopping you there, again, without revealing the true Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 134 of 232 PageID# 5386 Harlow - Direct 669 1 code name, he had used the true code name for the -- he had 2 used a true cryptonym rather than -- 3 A. 4 the description of the entire operation. 5 know, by the time, I had learned that perhaps the code name 6 that he was using was referring to the individual as opposed to 7 the overall program, but he was still using very specific, 8 agency-like code words in his communication with me. 9 Q. He used, he used a, more than "Merlin," which he said was I believe I, you And in your Lotus Note, you used the term "firing set," 10 i-n-g, rather than "fire sets." 11 you, as best as you can recall? 12 A. As best as I can recall, that's what he was saying, yes. 13 Q. What did you ask him in response? 14 A. Well, I, I asked him again whether he had considered the 15 wisdom of doing this story, and he told me he had, and he said 16 to me that he had talked to some people who believed that the 17 operation was not handled properly and that, that the Iranians 18 were already aware of the flaw. 19 wouldn't be, wouldn't be a problem, and that the Iranians had 20 already been able to fix the flaws that were in the diagrams 21 that were sent to him. 22 Is this what Risen is telling Therefore, his revealing it And this was the first time that he ever mentioned to 23 me any notion that the program was not well run, successful, 24 appropriate, and that's the first time I had heard that 25 allegation either from him or anywhere else, so that was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 135 of 232 PageID# 5387 Harlow - Direct 670 1 concerning to me. 2 Q. And what did you ask him to do? 3 A. I asked him how widely this had been discussed at his 4 newspaper, because by this point, I was certain this was a 5 highly sensitive program, and I didn't want too many people 6 bandying about the story because the more people who know about 7 it in the newsroom, the greater the possibility that it might 8 leak. 9 leak somewhere else. Even if it didn't end up in The New York Times, it could 10 So I asked him to control that, and I did tell him at 11 that point that I thought that there was enough concern about 12 this that very high officials in the U.S. government would want 13 to make strong representations to his leadership about the lack 14 of wisdom of running such an article, and so I urged him to not 15 go ahead until we had an opportunity to do that and to keep 16 tight the number of people who would see his draft or know 17 about this article that he was preparing. 18 Q. 19 move quickly? 20 A. 21 article, I thought this is something which could appear in the 22 paper in the next few days, so we didn't have a lot of time to 23 think about this. 24 a paper, we needed to act quickly to make a representation to 25 his leadership about not doing so. Now, at the bottom of that note, it indicates you had to Yes. Again, because he already had a draft of the If we wanted to prevent it from appearing in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 136 of 232 PageID# 5388 Harlow - Direct 671 1 Q. So what did you do? 2 A. Well, I sent this note to agency senior leadership. 3 agreed, and in conversations with the White House, there was a 4 decision that the National Security Advisor, Dr. Rice, would, 5 in fact, hold a meeting with New York Times officials to talk 6 about this, and then I was asked to craft some talking points 7 that she could have for her use or consideration in that 8 meeting to, to make the case to The New York Times that this 9 was not an article which ought to appear in their paper. They 10 Q. And did you, in fact, draft some talking points? 11 A. Yes, I did. 12 Q. Was that based upon the research that you had done over 13 the last two weeks or so? 14 A. Yes. 15 Q. And looking at Government 114 -- 16 THE COURT: 114? Any objection? 17 MR. MAC MAHON: 18 THE COURT: 19 (Government's Exhibit No. 114 was received in No objection, Your Honor. All right, it's in. 20 evidence.) 21 BY MR. TRUMP: 22 Q. Are those the talking points you drafted? 23 A. Yes, they are. 24 Q. Now, when was the White House meeting? 25 Did you prepare a memorandum memorializing the White House Let me back up. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 137 of 232 PageID# 5389 Harlow - Direct 672 1 meeting? 2 A. 3 because I was present at the meeting, I took notes and then 4 created a memo to circulate at the agency beyond this. 5 Q. And did, did that memo reflect the date of the meeting? 6 A. Yes. 7 Q. And is that memo Exhibit 113, Exhibit 113? Yes. After the meeting took place, I prepared a -- 8 THE COURT: Any objection to 113? 9 MR. MAC MAHON: No objection, Your Honor. 10 THE COURT: 11 (Government's Exhibit No. 113 was received in 12 All right, it's in. evidence.) 13 THE WITNESS: Yes. That's, that's my note. 14 BY MR. TRUMP: 15 Q. And when was the White House meeting? 16 A. April 30. 17 Q. And who was there on behalf of the CIA? 18 A. The Director, George Tenet, was there; Steve Kappes, who 19 was the No. 2 in the clandestine service, the Deputy Director 20 of Operations; and myself. 21 Q. And obviously, Dr. Rice was the chair of the meeting? 22 A. Yes. 23 Q. And who was there on behalf of The New York Times? 24 A. Jill Abramson, who was then the Washington bureau chief, 25 and Jim Risen. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 138 of 232 PageID# 5390 Harlow - Direct 673 1 Q. And there was also someone from NSC staff? 2 A. Anna Perez, who is Dr. Rice's spokesperson, was also 3 present. 4 Q. 5 given them to her? 6 A. 7 before we arrived. 8 Q. And tell us what happened at the meeting. 9 A. It lasted about 15 minutes. Did you give Dr. Rice the talking points, or had someone Someone had given them to her in advance, so she had them I noted that she followed the 10 talking points very closely, and when she got done, there was 11 some conversation. 12 about one of the talking points, one of the assertions in the 13 talking points, which is that leak of this information could 14 result in people dying. Jill Abramson asked for more information 15 At that point, Director Tenet spoke up and said that, 16 reminding people that this was off the record because we didn't 17 want this to end up in their story if they ended up ignoring 18 us, but the Russian involved had used his true name when 19 dealing with the Iranians, and so if they learned that they had 20 been misled, they might go after him, and so that was a concern 21 particularly for, you know, for that one individual. 22 Q. Did Mr. Risen ask any questions? 23 A. Yes. 24 asserted -- or the notion of whether the Iranians were witting 25 of the program, whether they were aware this operation had been He, he asked about the question about we had Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 139 of 232 PageID# 5391 Harlow - Direct 674 1 conducted, and he said that he -- or he implied that he had 2 seen a letter to the Iranians from the Russian which had told 3 them that the program was flawed, and so he took from that that 4 it meant, you know, they already know, so, you know, our story 5 won't make it any worse for this guy. 6 And Director Tenet answered up and said no, the 7 purpose for the letter was for the individual to suggest to the 8 Iranians that they continue to need him, they needed his 9 services, so he wasn't telling them, "What I just gave you was 10 no good." 11 help you on this program." 12 Q. So what happened -- how did the meeting wrap up? 13 A. Well, Jill Abramson, the Washington bureau's chief, said 14 that they had a fully realized draft, which to me meant the 15 story was done, it was ready to go, but they hadn't yet decided 16 to publish it, and they would go back and think about it and 17 would let us know. 18 her pay grade, that it would be made by her bosses in New York. 19 He was telling them, "You need me to continue to And she said that the decision was above And there was a discussion about we were urging them 20 to keep the information very tightly held and don't have it 21 easily available on your computer systems, don't have it laying 22 around, don't have too many people editing it, because we 23 didn't want the information to leak. 24 in The New York Times, we didn't want it to appear anywhere 25 else. Even if it didn't appear We asked them to keep it closely held. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 140 of 232 PageID# 5392 Harlow - Cross 675 1 Q. And how did it wrap up? 2 A. Abramson said that she would let us know her decision -- 3 or the paper's decision after she talked to her bosses in New 4 York, and that was the end of the meeting. 5 Q. 6 not to post the story? 7 A. 8 a call from Anna Perez, the spokesperson for Dr. Rice, who said 9 that they had gotten a call from The New York Times saying not 10 to worry, we're not going with it, and that appeared to be the 11 end of the story. 12 Q. And is that reflected in Government Exhibit 115? 13 A. Yes. And did you later find out that The New York Times decided Yes. I believe it was a week, ten days later or so I got 14 MR. MAC MAHON: 15 THE COURT: 16 (Government's Exhibit No. 115 was received in 17 No objection, Your Honor. All right, 115 is in evidence. evidence.) 18 MR. TRUMP: The Court's indulgence? 19 THE COURT: Yes, sir. 20 MR. TRUMP: That's all I have. 21 THE COURT: All right. 22 23 cross-examination? MR. MAC MAHON: 24 25 Mr. MacMahon, Thank you, Your Honor. CROSS-EXAMINATION BY MR. MAC MAHON: Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 141 of 232 PageID# 5393 Harlow - Cross 676 1 Q. Good afternoon, Mr. Harlow. 2 I'm one of the attorneys representing Mr. Sterling. 3 My name is Edward MacMahon. Sir, you say, I think, on direct -- first of all, 4 these events took place how many years ago? 5 A. Not quite 12 years ago. 6 Q. All right. 7 in front of you as you testified today, haven't you? 8 A. Yes. 9 Q. Because you don't have really an independent recollection And you've been reading off of the documents 10 of many of these events, do you? 11 A. 12 the agency, this was one of the more startling phone calls I 13 got, so I have a recollection of it. 14 the date of the phone call or the exact order or the sequence 15 of events, but the events, you know, I remember that. 16 Q. 17 you, aren't you? 18 A. 19 wrong, but I guarantee you I remember that phone call. 20 Q. 21 think a respectable journalist would publish this story? 22 A. Yes, sir. 23 Q. That's not exactly what you told him, is it? 24 tell him Al Jazeera was the only outlet that would publish 25 that? Well, this was a very memorable event, so of my time at All right. I couldn't have given you But you're reading off the paper in front of I was because it makes it easier and so I didn't get it Okay. And you said you told Mr. Risen that you didn't Didn't you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 142 of 232 PageID# 5394 Harlow - Cross 677 1 A. If you'd like me to read all of these back to you, I'll 2 read the entire document, but yeah. 3 Q. 4 publish this story? 5 A. 6 thinking that a publication that maybe didn't have our best 7 interests, U.S. best interests, you know, we're talking weeks 8 after the invasion of Iraq, 18 months after 9/11, I wanted to 9 give him the impression that a reputable news organization You did tell him that it would be Al Jazeera that would Yeah, I did because I thought that it might shock him into 10 would not be putting this kind of information out, and so I 11 wanted to get his attention. 12 13 Whether I did or not, I don't know. Q. And Al Jazeera is what, an Arab-owned news network? 14 15 MR. TRUMP: Objection, Your Honor. THE COURT: It is. This is going far afield. 16 However, it's mentioned in the 17 notes, and I'm going to allow just a bit of this. 18 we're going very far. 19 20 MR. MAC MAHON: I doubt I'm almost done, Your Honor, I promise. 21 THE COURT: Go ahead. Overruled. 22 BY MR. MAC MAHON: 23 Q. What is Al Jazeera, Mr. Harlow? 24 A. It's an Arab-owned news network which at the time was not 25 particularly held in high regard. It's gotten better over the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 143 of 232 PageID# 5395 Harlow - Cross 678 1 years from my observing from afar, but at the time, it wasn't 2 particularly held in high regard, and I was trying to get his 3 attention. 4 Q. 5 his journalism might appear on Al Jazeera? 6 A. No. 7 Q. Now, when you -- if you look at Exhibit 106, which I think 8 you told us was your notes of the first time that you talked to 9 Mr. Risen, correct? Did you get a reaction from Mr. Risen when you suggested About this subject. I know that you 10 talked to him a lot. 11 A. Right. 12 Q. Okay. 13 Mr. Francisco? -- he told you that there were -- excuse me, he 14 was unaware, and this is in the middle, whether the program was 15 still in operation, correct? 16 Yes. And in your notes -- if we could put that up, THE COURT: Third paragraph down. 17 BY MR. MAC MAHON: 18 Q. 19 that the plans involved"? 20 A. Yes, correct. 21 Q. Right? 22 Mr. Risen on April 3, 2003, was unsure that the program was in 23 operation but that it started in 2000. 24 A. Right. 25 Q. Now, that -- he obtained more information in the next Third paragraph down. It starts with, "He went on to say That's what you wrote down in your notes, that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 144 of 232 PageID# 5396 Harlow - Cross 679 1 three weeks, didn't he? 2 A. Yes. 3 Q. Okay. 4 the -- if Mr. Francisco could highlight the fifth line down? 5 It starts, "The United States," please. 6 So if we'd look at Government Exhibit 112, and it's Now, he says, "The United States has an ongoing 7 classified program"? 8 MR. TRUMP: 9 He appeared to, didn't he? Objection. That's not what it says, Your Honor. 10 BY MR. MAC MAHON: 11 Q. 12 Iranian nuclear weapons," correct? 13 A. Right. 14 Q. "Ongoing" is your word here, right? 15 A. Right. 16 Q. Is that what Mr. Risen told you, that he now knew the 17 program was ongoing? 18 A. 19 call, that he didn't know whether it was ongoing, and he now is 20 saying it is ongoing, then I accept your point that he learned 21 something in that period. 22 ". . . has had an ongoing classified program to derail the Assuming that he was telling me the truth in his first Whether or not he did, I don't know. Part of Risen's MO is that he would do all this 23 aw-shucks kind of stuff and would often not tell you much of 24 what he knew, and so whether he was, he was telling me 25 everything he knew, I'm certain he wasn't telling me everything Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 145 of 232 PageID# 5397 Harlow - Cross 680 1 he knew on April 3, he was telling me more since he had drafted 2 his story on April 25. 3 Q. 4 different and knew that he -- on April 25 than he had told you 5 on April 3, correct? 6 A. He definitely told me something different, yes. 7 Q. Okay. 8 to government documents and knowledgeable people," correct? 9 A. Right. 10 Q. He didn't attribute that to one person, did he? 11 A. I wrote down what he told me. 12 Q. Right. 13 please. 14 House on April 30? 15 A. Right. 16 Q. And if we could focus in on the paragraph that starts with 17 "Risen said" -- "Risen asked," excuse me? 18 that meeting, and you were present, that he had seen a letter 19 to the Iranians from the Russian which told them that their 20 program was flawed. 21 Sir, you don't disagree that he told you something And in that same call, you said he had "according Let's go to Exhibit 113 as well, if we could, And these are notes from the meeting at the White Mr. Risen said at That's what he said at the meeting, isn't it? 22 A. It says he implied he had seen a letter to the Iranians. 23 Q. Well, what did he exactly say, do you remember? 24 A. I don't remember that. 25 was a dozen years ago. You know, as he pointed out, it Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 146 of 232 PageID# 5398 Harlow - Cross Right. 681 1 Q. This was your -- this is your best recollection of 2 what happened is that he implied that he had seen a letter to 3 the Iranians from the Russian telling them that their program 4 was flawed. 5 A. Right. 6 Q. Did you ever see that letter? 7 A. No, sir. 8 Q. Now, you were interviewed by the FBI several times about 9 this matter, correct? Right? 10 A. Yes, sir. 11 Q. And did you tell the FBI that Mr. Risen has lots of 12 sources for the stories that he calls you with? 13 A. 14 have lots of sources. 15 Q. 16 CIA officials, correct? 17 A. I think I told him former senior CIA officials. 18 Q. Right. 19 official named Milt Bearden, correct? 20 A. Right. 21 Q. But that's something you told the FBI? 22 A. I told them Milt Bearden, who had been retired for about 23 ten years, yes. 24 Q. 25 former CIA -- that was the only CIA official that you named Sure. Right. Most reporters, national news stories, they can You told him that Mr. Risen had access to senior He'd written a book recently with a former CIA Who had been retired for about ten years. And you told -- you didn't -- Mr. Bearden wasn't the only Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 147 of 232 PageID# 5399 Harlow - Cross 682 1 when you talked to the -- 2 A. Yeah. 3 Q. Because you didn't know if there was anybody else, 4 correct? 5 A. No. 6 Q. All right. 7 didn't even know whether Mr. Risen had documents about the 8 program. 9 A. And you also told the FBI in 2003 that you I -- he said he did in response to me. I don't know 10 whether he was telling me the truth again, but that's what he 11 told me. 12 Q. 13 talk to about something like this would be Bill Duhnke, a 14 person named Bill Duhnke, correct, up at the -- that worked at 15 the U.S. Senate? 16 17 Okay. And you also told them that someone they should MR. TRUMP: Objection, Your Honor. That gets into another topic that we would need to discuss at the bench. 18 THE COURT: 19 (Sealed Bench Conference C not transcribed in this 20 Approach the bench. Mira. volume.) 21 BY MR. MAC MAHON: 22 Q. 23 thought that Mr. Risen might reach out to the Staff Director of 24 the Senate Select Intelligence Committee on Intelligence for 25 confirmation, that Mr. Risen would, correct? Now, Mr. Harlow, in 2003, you told the FBI that you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 148 of 232 PageID# 5400 Harlow - Cross 683 1 A. I'm sorry? 2 Q. Do you remember telling the FBI that Mr. Risen didn't 3 indicate or tell you in any way where he'd gotten this story 4 from? 5 A. That's correct; he didn't. 6 Q. And you told him that he didn't tell you whether it was a 7 Hill staffer or not? 8 A. He didn't tell me at all where he got it. 9 Q. And you suggested to the -- you told the FBI that he might 10 have contact with someone affiliated with one of the 11 intelligence committees, and that's the permanent United States 12 Select Intelligence Committee on Intelligence, correct? 13 A. 14 kind of people that Risen might talk to on a story like this, 15 and I told them that he had regular contact with the 16 Congressional Oversight Committees, including the Senate 17 Intelligence Committee, and so the kind of places he might go 18 to ask about the story would be the Senate Oversight 19 committees. 20 My recollection is what the FBI asked me is who are the That's my recollection of it. You know, it's a dozen 21 years ago but -- 22 Q. And one of the names you gave them was Bill Duhnke, right? 23 A. Right. 24 Q. Now, do you -- you testified earlier that you were aware 25 from your duties in the Press Office, is it, that Mr. Sterling Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 149 of 232 PageID# 5401 Harlow - Cross 684 1 had filed a discrimination case against the CIA? 2 A. Yes. 3 Q. Okay. 4 about Mr. Sterling's discrimination case. 5 that? 6 A. No. 7 Q. Do you remember an e-mail titled "Bill Harlow's Tirade"? 8 A. No. 9 Q. Do you know whether that e-mail has to do with In fact, you had, you had written an e-mail in 2002 10 Mr. Sterling's discrimination case? 11 A. I have no idea. 12 MR. MAC MAHON: Your Honor, I have a document that's 13 marked as Defendant's Exhibit 4. 14 witness? 15 16 If I could hand it to the I have copies for the Court. MR. TRUMP: I fail to see any relevance in this. It doesn't relate -- 17 18 Do you remember THE COURT: Well, I don't have it, so let me take a look at it. 19 I'm going to permit this. Overruled. 20 MR. MAC MAHON: 21 THE COURT: 22 (Defendant's Exhibit No. 4 was received in evidence.) Move Exhibit No. 4, Your Honor. All right, it's in. 23 BY MR. MAC MAHON: 24 Q. Are you done reading that, Mr. Harlow? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 150 of 232 PageID# 5402 Harlow - Cross 685 1 Q. Does this e-mail -- if we can publish this for the jury, 2 please? 3 Tirade"? 4 A. Yes. 5 Q. Does this refresh your recollection as to what the tirade 6 was about? 7 A. Haven't a clue. 8 Q. Does reading of the body of the e-mail suggest to you that 9 in any way this had to do with Mr. Sterling's pending case in The subject line of this e-mail is "Bill Harlow's 10 the Southern District of New York? 11 A. 12 with it, I don't know. 13 it's been blacked out, but -- 14 Q. 15 of New York in 2002, correct? 16 A. 17 yeah. 18 Q. 19 paper and otherwise in that time frame? 20 A. Yes. 21 Q. And you were being asked to comment about his case, 22 weren't you? 23 A. Sure. 24 Q. And that resulted in your tirade, correct? 25 A. I don't know if that's what resulted in it or not. It has something to do with it. Exactly what it has to do I'm not even sure who it's from since But Mr. Sterling did have a case in the Southern District I believe that's where it was. All right. I know he had a case, And you knew that there were articles in the I'm Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 151 of 232 PageID# 5403 Harlow - Cross 686 1 sure the "tirade" is a joke, but in any case, this is somebody 2 responding to it, saying while we can't talk about 3 Mr. Sterling's case, we can talk about our efforts to, to have 4 an effective hiring program, equal opportunity at the agency, 5 and somebody who wanted to talk about that, and we did to some 6 extent talk about that without talking about the specifics of 7 his case. 8 9 We were able to talk about how many people we had hired in the last class of clandestine officers, 20-some 10 percent had been of minority. 11 overall charge that we were an organization which discriminated 12 against, without getting into specifics of his case because we 13 weren't allowed to due to privacy. 14 Q. 15 of 2003, you were fielding a lot of calls, weren't you? 16 A. Sure. 17 Q. All right. 18 whether weapons of mass destruction had been found in Iraq, 19 correct? 20 A. All right. So we were addressing the And lastly, Mr. Trump asked you about in April And you were fielding a lot of calls about Sure. 21 MR. TRUMP: Objection. 22 THE COURT: Well, it's already been answered. 23 have to be faster on your feet, Mr. Trump. 24 BY MR. MAC MAHON: 25 Q. You That was a, that was a topic of great interest, correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 152 of 232 PageID# 5404 Harlow - Cross 687 1 MR. TRUMP: Objection. 2 MR. MAC MAHON: 3 THE COURT: He opened the door. Well, he opened the door. Your witness 4 did testify that he had a lot of activity. We're not going to 5 go very far into that, but that's not inappropriate. 6 Overruled. 7 BY MR. MAC MAHON: 8 Q. 9 whether the U.S. government was actually going to find weapons And that was the subject of most of your calls, was 10 of mass destruction in Iraq after you went to war, correct? 11 A. 12 April, because the invasion had only happened a few weeks 13 before, and we were telling people, you know, that it was going 14 to take a lot longer than that, and it wasn't until months and 15 months later that we determined that we probably weren't going 16 to find weapons of mass destruction, so at this point, no. No, I wouldn't say most of my calls. 17 Certainly not in We were getting questions at this point about how was 18 the war going? 19 the war against Al Qaeda going? 20 Laden yet? 21 Have you found Saddam yet? And also, how is You know, have you found Bin So in April of 2003, that wasn't the principal 22 question. 23 Q. But you were fielding calls at that time -- 24 A. Sure. 25 Q. -- about whether the CIA -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 153 of 232 PageID# 5405 Rice - Direct 1 A. 688 We were getting some. Some, yeah. 2 THE COURT: 3 MR. MAC MAHON: 4 THE COURT: All right, is there any redirect? 5 MR. TRUMP: No, Your Honor. 6 THE COURT: All right. 7 That's been asked and answered. Nothing further, Your Honor. Mr. Harlow is not going to be called as a witness again, correct? 8 MR. TRUMP: Correct. 9 THE COURT: Mr. Harlow, you're free to stay in court 10 and watch the proceedings if you want to, or you may leave. 11 Thank you for your testimony. 12 THE WITNESS: 13 Thank you very much. (Witness excused.) 14 THE COURT: All right, call your next witness. 15 MR. OLSHAN: Your Honor, the government calls 16 Condoleezza Rice. 17 18 THE COURT: All right. Mr. Wood, the next witness is outside as well. 19 CONDOLEEZZA RICE, PH.D., GOVERNMENT'S WITNESS, AFFIRMED 20 MR. OLSHAN: 21 THE COURT: 22 May I proceed? Yes, sir. DIRECT EXAMINATION 23 BY MR. OLSHAN: 24 Q. Good afternoon, ma'am. 25 A. Good afternoon. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 154 of 232 PageID# 5406 Rice - Direct 689 1 Q. If you could, please state and spell your name for the 2 record. 3 A. 4 R-i-c-e. 5 Q. 6 for the United States? 7 A. I was. 8 Q. Can you tell the jury what years you were Secretary of 9 State? My name is Condoleezza Rice, C-o-n-d-o-l-e-e-z-z-a, Rice, Secretary Rice, were you formerly the Secretary of State 10 A. I was Secretary of State from January 2005 until 2009. 11 Q. That's a cabinet-level position within the U.S. 12 government? 13 A. It is. 14 Q. Can you tell the jury a little bit about your educational 15 background? 16 A. 17 at the University of Denver, where I studied first music and 18 then political science. 19 did my master's degree at Notre Dame, finishing in 1975. 20 received my Ph.D. in International Studies from the University 21 of Denver in 1981 and then went to Stanford University. 22 Q. And are you currently employed, Secretary Rice? 23 A. I am. 24 Graduate School of Business, and I'm a senior fellow at the 25 Hoover Institution on Public Policy. Yes. I was a graduate -- I was an undergraduate student I received my B.A. in 1974 and then I I'm on the faculty of Stanford University in the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 155 of 232 PageID# 5407 Rice - Direct 690 1 Q. Do you teach courses? 2 A. I do. 3 policy. 4 political risk and also on global politics. 5 Q. 6 held other positions within the United States government? 7 A. 8 the President for National Security Affairs and Senior Director 9 for Soviet and East European Affairs in the administration of I teach undergraduate courses in American foreign I teach courses for the business school in, concerning Other than your position as Secretary of State, have you I have. From 1989 until 1991, I was Special Assistant to 10 President George H. W. Bush; and then from 2001, January of 11 2001 until my becoming Secretary of State in 2005, I was 12 Assistant to the President for National Security Affairs, more 13 commonly known as National Security Advisor. 14 Q. 15 April of 2003, were you National Security Advisor? 16 A. I was. 17 Q. Can you briefly describe for the jury what the National 18 Security Advisor is and what she does? 19 A. 20 assistant to the President for National Security Affairs. 21 the responsibility of the National Security Advisor to make 22 sure that the President is properly briefed on matters of 23 national security. Let's focus on that time, time frame. In approximately The National Security Advisor is the principal aide or It's 24 The National Security Advisor also coordinates the 25 government's policies through the National Security Council, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 156 of 232 PageID# 5408 Rice - Direct 691 1 which consists of the Secretary of State, the Secretary of 2 Defense, and some other key national security officials; and 3 the National Security Advisor undertakes various tasks at the 4 direction of the President on behalf of American national 5 security policy. 6 Q. 7 high-ranking government position? 8 A. Yes, I think that's fair. 9 Q. As of April 2003, approximately how long had you been Is it fair to say with that description that it's a fairly 10 National Security Advisor? 11 A. 12 of President George W. Bush. 13 does not require confirmation, so upon his inauguration, I was 14 National Security Advisor. 15 2001, so roughly two years and a few months. 16 Q. 17 clearance? 18 A. I did hold several security clearances, yes. 19 Q. And at other times prior to that, perhaps during the first 20 Bush administration, did you also hold security clearances? 21 A. 22 government service. 23 Q. What about when you were later Secretary of State? 24 A. As Secretary of State, I also held security clearances. 25 Q. In connection with your government positions, did you I became National Security Advisor after the inauguration The National Security Advisor That would have been in January of As the National Security Advisor, did you hold a security I had held security clearances a number of times during my Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 157 of 232 PageID# 5409 Rice - Direct 692 1 receive training on how to properly handle classified 2 information? 3 A. 4 national security information to make certain that it would not 5 be disclosed, how to handle documents, how to secure documents, 6 and after that training, we were certified and, in fact, 7 certified by signature that we had been properly trained and 8 agreed to handle the materials properly. 9 Q. You did this periodically through your career? 10 A. Yes. 11 Q. How important would you say the proper handling of 12 classified information was during your tenure? 13 A. 14 extraordinarily important because it very often involves some 15 of the most sensitive programs that the United States is 16 carrying out to try to secure the country. 17 intelligence information that is important to securing the 18 country. 19 information is extraordinarily important. 20 Q. 21 the White House with representatives from The New York Times? 22 A. I do. 23 Q. And that was in your office at the White House? 24 A. The meeting was held in my office, yes. 25 Q. Can you describe for the jury how that meeting came about? Yes. We received training on how to properly handle The proper handling of national security information is It can contain So the handling of sensitive national security Do you recall attending a meeting on April 30, 2003, at Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 158 of 232 PageID# 5410 Rice - Direct 693 1 A. 2 National Security Council press staff that The New York Times 3 had called to say that they were about to publish an article 4 related to a sensitive national security program. 5 the President that there was likely to be a New York Times 6 article about this program concerning the Iranian nuclear 7 program and efforts to disrupt it. 8 9 Prior to that meeting, I received information from the I informed At that time, the President and I talked about and I decided that I should ask The New York Times leadership to come 10 to the White House for a meeting to discuss why that story 11 should not be published. 12 Washington bureau chief of The New York Times, agreed to come. 13 I explained that I could not talk about this on an open line 14 and so it was very important that a meeting take place, and I 15 held that meeting in my office. 16 Q. 17 that you told Ms. Abramson that you couldn't talk about it on 18 an open line. 19 couldn't do that? 20 A. 21 call would be between the White House and The New York Times 22 that those lines could have been monitored. 23 lines but obviously would not have had a secure line to The New 24 York Times. 25 House and the Defense Department, for instance, but not with In fact, Jill Abramson, the So let's back up a little bit. First, you just mentioned Can you tell the jury a little bit about why you Well, on an open line, one had to assume given that the We have secure We would have had a secure line between the White Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 159 of 232 PageID# 5411 Rice - Direct 1 694 The New York Times. 2 And on an open line, there was a chance of compromise 3 of the information, compromise to a foreign government, and so 4 I was concerned about talking, even talking about this program 5 in that way on an open line. 6 Q. 7 of this proposed New York Times story was it had something to 8 do with disrupting the Iranian nuclear program; is that 9 correct? So you mentioned that your understanding as to the nature 10 A. That's correct. 11 Q. And do you remember any more general specifics about this 12 program as it was going to be reported in The Times? 13 A. 14 was that the effort to disrupt the Iranian nuclear program by 15 supplying to the Iranians flawed parts for their program had 16 been botched or had been mismanaged and that the program was 17 therefore not working. 18 Q. 19 York Times story, were you familiar with a classified program 20 similar to the description of that article? 21 A. I was familiar with the program that fit that description. 22 Q. You'd been briefed on this program previously? 23 A. I had been briefed on the program previously. 24 Q. Secretary Rice, to your knowledge, did everyone -- you 25 mentioned the National Security Council. Yes. It is my recollection that the thrust of the story At the time that you learned about this anticipated New To your knowledge, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 160 of 232 PageID# 5412 Rice - Direct 695 1 did everyone on the National Security Council know about this 2 specific classified program? 3 A. No, quite to the -- 4 MR. POLLACK: I would object, Your Honor. This may 5 be an issue that we need to take up at the bench, but I think 6 it is beyond the protective order's bounds. 7 MR. OLSHAN: 8 THE COURT: 9 10 Your Honor, it's not. I think the government is very sensitive to the protective order, and I doubt that they would go beyond it so -- 11 MR. OLSHAN: 12 MR. POLLACK: 13 I'll rephrase the question. This is an area that if they go into it, we can't be prevented from going into. 14 MR. OLSHAN: 15 THE COURT: I'll rephrase the question. Let me hear what the new question is. 16 BY MR. OLSHAN: 17 Q. 18 this program, correct? 19 A. Yes. 20 Q. How closely held would you describe this program? 21 A. This program was very closely held. 22 most closely held programs during my tenure as National 23 Security Advisor. 24 Q. 25 write an article about this program, what was your initial You testified, Secretary Rice, that you were familiar with It was one of the When you learned that The New York Times was prepared to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 161 of 232 PageID# 5413 Rice - Direct 696 1 reaction to that? 2 A. 3 all to be stunned because to my knowledge, very few people knew 4 about this program. 5 within the White House about the program, and so I was stunned 6 that The Times had the information. Well, my initial reaction upon learning this was first of 7 I knew that very, very few people knew Secondly, I was deeply concerned because this was not 8 just a sensitive program, but it was one of the only levers 9 that we believed we had, that the President had to try to 10 disrupt the Iranian nuclear program. 11 Q. 12 saying only a few options were in play as far as how to disrupt 13 a foreign nuclear program? 14 A. 15 preferably destruction of the Iranian nuclear program was one 16 of the highest priorities of the Bush administration. 17 been a high priority before in the Clinton administration. 18 remains a high priority today for the Obama administration. You said "one of the only levers." Is that the same as The Iranian nuclear program was -- disruption of or even 19 It had It And so yes, it was an important option, an important 20 way that we might be able to disrupt the program, and that's 21 why I was concerned about its possible compromise. 22 Q. 23 House, correct? 24 A. Yes. 25 Q. Do you recall who was in attendance at that meeting? You testified that you convened a meeting at the White Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 162 of 232 PageID# 5414 Rice - Direct 697 1 A. Well, I recall that Jill Abramson, the bureau chief, 2 Washington bureau chief with The New York Times, was there. 3 James Risen, the reporter who was going to write the story, was 4 there. 5 Intelligence and the Director of the Central Intelligence 6 Agency. 7 held both the positions of Director of Central Intelligence and 8 the Director of the Central Intelligence Agency, the CIA. 9 I remember also George Tenet, the Director of Central The positions were combined at the time, and so George And I can't remember specifically, but I believe that 10 there was also a member of my staff there from the Press 11 Office. 12 Q. 13 Press Office; is that correct? 14 A. That's correct. 15 Q. Did you share with that person from the Press Office any 16 of the details that you knew about this classified program? 17 A. 18 receiving mode to know what the press person had been told, but 19 because the press person would not have been briefed on the 20 program, would not have been, as we say, read into the program, 21 I did not discuss the details of the program with that person. 22 Q. 23 person? 24 A. 25 who was not, not properly on a need-to-know basis for that You mention that you were notified by an individual in the In the NSC Press Office. I did not share the details of this program. I was in a Was it important not to discuss the details with that It was important not to discuss the details with anyone Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 163 of 232 PageID# 5415 Rice - Direct 698 1 program. 2 Q. 3 described his positions at the time. 4 highest-ranking intelligence official in the United States 5 government at the time? 6 A. 7 highest-ranking intelligence official in the government. 8 have since been subsequent reforms that have created another 9 position, but at that time, the Director of Central 10 Intelligence, George Tenet, was the highest-ranking 11 intelligence official. 12 Q. 13 not to run the story? 14 A. 15 story. 16 Q. Did you speak at the meeting? 17 A. I did speak at the meeting. 18 19 You testified that George Tenet was in attendance, and you Was he the At the time, the Director of Central Intelligence was the There And the purpose of this meeting was to convince The Times The purpose was to convince The Times not to run the MR. OLSHAN: Your Honor, if we could bring up Government's Exhibit 114, which is already in evidence? 20 THE COURT: 21 If you'll look at the screen, that's probably the 22 Yes. easiest way of seeing it. 23 THE WITNESS: 24 BY MR. OLSHAN: 25 Q. Thank you. Secretary Rice, you've got two options there, one on the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 164 of 232 PageID# 5416 Rice - Direct 699 1 screen and a hard copy in front of you as well. 2 A. Yes, thank you. 3 Q. Do you recognize that document? 4 A. I do recognize the document. 5 Q. And what is that document? 6 A. The document is a set of talking points that were provided 7 to me by the Central Intelligence Agency for use in the meeting 8 with The New York Times. 9 Q. Was it common when you attended meetings as National 10 Security Advisor for someone to prepare talking points for you 11 to use? 12 A. 13 significant meetings, I was provided talking points so that I 14 would remember the key points that had to be, that had to be 15 made in said meeting. 16 Q. 17 were going to be dealing with not only a sensitive topic but a 18 classified topic? 19 A. 20 properly deliver to The New York Times a statement that, about 21 the importance of a program, about the sensitivity of the 22 program, about the dangers of its compromise; but I wanted to 23 do so in a way that would not further compromise the program by 24 inadvertently giving information that I didn't need to provide; 25 and so these points were to make certain that I stayed within When I conducted or attended sensitive or important, How important were talking points such as these when you Well, in a case like this, I was concerned that I would Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 165 of 232 PageID# 5417 Rice - Direct 700 1 the boundaries of what the CIA thought was appropriate to, to 2 convey to The New York Times. 3 So the talking points were extremely important in 4 this case. 5 Q. 6 them? 7 A. 8 whether they accorded with my own understanding of what the 9 program was and what had happened, and I would have reviewed And would you have reviewed these prior to delivering I would have reviewed them, I would have checked them for 10 them several times. 11 Q. 12 such as a very significant classified program or story about 13 it, would you tend to hew closely to those talking points, or 14 would you sort of freelance a little? 15 A. 16 my concern was to in this meeting deliver only what I needed to 17 deliver to The New York Times to convince them not to publish 18 the story and to avoid straying into further information that 19 might have confirmed, directly confirmed the program, that 20 might give further information about the program, and so the 21 safety valve, if you will, was to adhere very closely to the 22 talking points. 23 In sensitive meetings where you're dealing with topics I would not freelance in a circumstance like this because I can't say that I delivered them word for word, but 24 I would have adhered to them very closely. 25 Q. If we could highlight or if you could take a look at the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 166 of 232 PageID# 5418 Rice - Direct 701 1 second talking point, that starts with "We've never called"? 2 A. Yes. 3 Q. Can you read that, please? 4 A. Yes. 5 this administration. 6 you how seriously we view this matter." 7 Q. 8 sentiment about never having convened a meeting like this at 9 the meeting? "We've never called a meeting like this before in The fact that we have done so may tell And do you recall as you sit here today conveying that 10 A. I did. 11 Q. If you could take a look at the fourth, fifth, and sixth 12 bullet points? 13 A. Yes. 14 Q. -- and go down to the bullet point that starts with "I say 15 incorrectly." 16 A. Yes. 17 Q. Do you see that? 18 A. I do. 19 Q. Do you remember making any comments at this meeting with 20 Mr. Risen and Ms. Abramson about whether the information they 21 had purportedly obtained was inappropriately provided to them? 22 A. 23 them and also that some of the information that they had 24 received was inaccurate. 25 Q. It's the ones that start with "Jim" -- I told them that it had been inappropriately provided to And when you say "inappropriately," what do you mean by Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 167 of 232 PageID# 5419 Rice - Direct 702 1 that? 2 A. 3 be disclosed to those who are not authorized to know about 4 them, and The New York Times would not have been authorized to 5 know about them. 6 Q. And again, can you recall word for word what you said? 7 A. Some 12 years later, I can't recall word for word, but I 8 recognize these points, and I did say that they had been 9 inappropriately provided the information and that some of it Inappropriately because intelligence programs are not to 10 was inaccurate. 11 Q. 12 inaccurate, what were you thinking about? 13 A. 14 story that the program had been botched, that it wasn't 15 working, and that the Iranians knew this, and it had been my 16 understanding, in fact, I had been told just the opposite, that 17 the program was indeed working, was underway and was working, 18 and I had no reason to believe that the Iranians knew anything 19 about it. 20 Q. 21 that this program had been botched in some way; is that 22 correct? 23 A. Yes. 24 Q. Now, was the purpose of your convening this meeting out of 25 any sort of embarrassment that it would get out that there had And to the extent the information as you understood it was What did you convey? I had been told that The Times was going to publish in the You testified that you, you had heard that the story was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 168 of 232 PageID# 5420 Rice - Direct 703 1 been a botched operation? 2 A. 3 very sensitive, extremely important program for the security of 4 the country that was about to be compromised, and given that we 5 did not have very many options for disrupting and possibly 6 undermining the Iranian nuclear program, I was very concerned 7 that any compromise of this program was going to take a good 8 option out of the hands of the President. 9 Q. My concern in convening this meeting was that we had a That was my concern. So was the disclosure of the existence of the program the 10 driving force behind convening the meeting? 11 A. 12 program which if disclosed and compromised, was going to at the 13 very least alert the Iranians that this, this program was 14 underway and the dangers associated with that, and that was my 15 concern was the disclosure and compromise of a highly sensitive 16 and closely held program. 17 Q. 18 in two-plus years that you had convened a meeting like this, 19 correct? 20 A. Yes. 21 Q. Did you, did you understand the significance of asking a 22 news-gathering organization not to print a story? 23 A. 24 asking The New York Times not to publish a story. 25 talked first to the President about whether we should even do The driving force was the disclosure of a very sensitive Secretary Rice, you testified that this is the first time I certainly understood the significance of the White House It's why I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 169 of 232 PageID# 5421 Rice - Direct 1 704 so. 2 I understand and fully respect the role of the press. 3 I understand and fully respect the importance of a free press 4 to our democracy and our democratic values, but I needed in 5 this case to make certain that The New York Times understood 6 the import of what they were about to do, and so with the 7 President's consent, I went to them to ask that they not 8 publish the story. 9 Q. If you could take a look at the last bullet point on the 10 first page of the bullet points, it starts, "Asking 11 journalists"? 12 A. Yes. 13 Q. Do you see the second -- excuse me, the third sentence 14 that begins, "I am going to"? 15 A. Yes. 16 Q. Can you read that? 17 A. "I am going to ask in the strongest possible terms that 18 you not discuss this matter with colleagues and that you not 19 conduct further inquiries around town about it." 20 Q. 21 participants of this meeting not to go talking about this? 22 A. 23 the program, read into the program, but I knew that it was 24 often the practice of journalists that they would get a nugget 25 about a program and then they would make calls around town to Why, if at all, was it important to convey to the Well, there were very few people who had been briefed on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 170 of 232 PageID# 5422 Rice - Direct 705 1 different agencies to try to get confirmation, to get some 2 further information, and my concern was that in doing so, they 3 would actually spread the news about the program to people who 4 did not yet know. 5 Q. 6 within the government ranks? 7 A. 8 there were people who would likely be called by the press who 9 didn't know about the program, and to start asking questions Did you have any concern about further inquiries even Well, yes, within the government ranks especially, because 10 about it would further compromise the program itself. 11 Q. 12 specifically to the group about the gravity of this disclosure 13 and what it could mean for people's lives? 14 A. 15 Mr. Risen, that the disclosure of this program, the compromise 16 of this program would likely or could result in actual danger 17 to lives of people. 18 itself and take away from us a tool for dealing with the 19 Iranian nuclear program. 20 Do you remember whether you expressed anything I did say to The New York Times, to Ms. Abramson and to Obviously, it would endanger the program I adhered closely to what was said in the talking 21 points because the problem is to say enough about what is being 22 proposed without confirming too many details of the program to 23 the press, and so the language that I used is actually, I 24 recognize this language that is in the talking points. 25 Q. And specifically, which language are you referring to? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 171 of 232 PageID# 5423 Rice - Direct 706 1 A. Let me see. 2 Q. If I could direct your attention -- 3 A. Yes, it's -- 4 Q. Go ahead. 5 A. I'm trying to. 6 falling into the hands of rogue states is one of the most 7 important missions that this or any other administration can 8 have." 9 Q. 10 "Preventing working nuclear weapons from Thank you. What was your understanding at the time of how close 11 The Times was to publishing this story? 12 A. 13 they believed that the publication of the story was imminent, 14 probably within the next couple of days. 15 Q. 16 talking points whether you answered any questions? 17 A. 18 practice in these circumstances to deliver the points, not to 19 get into a conversation so that I wouldn't inadvertently 20 disclose more information, and then to refer questions to the 21 agency, in this case to George Tenet. 22 Q. 23 whether you asked The New York Times, either Ms. Abramson or 24 Mr. Risen, to do anything with any materials that they had? 25 A. The NSC press spokesman, press people had told me that During the meeting, do you recall after you delivered the I don't recall answering any questions, and it was my Do you recall during the meeting whether you asked, I, I do recall that I asked that if they had any Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 172 of 232 PageID# 5424 Rice - Direct 707 1 materials, that they would destroy them. I remember saying 2 that I, I knew that they wouldn't give them back to us 3 because -- and I wouldn't ask that, but that if they had any 4 materials, to please destroy them. 5 Q. 6 The New York Times had decided not to run the story? 7 A. 8 that she had to discuss this with her higher-ups, the editor, 9 Howell Raines, and she would get back to me. Following the meeting, did you learn at some point that I remember that the bureau chief, Ms. Abramson, told me I don't remember 10 precisely who she got back to, whether it was to me or to the 11 press shop. 12 area. 13 myself. 14 Q. The New York Times did not run the story; is that right? 15 A. That's correct. 16 Q. And do you recall what your reaction was when you 17 ultimately did learn that the story wasn't running? 18 A. 19 running and grateful to The Times for not doing so. 20 Q. 21 ever have any other conversations with him about this 22 classified program? 23 A. I had no conversations with Mr. Risen about this program. 24 Q. And have you ever discussed this classified program with 25 anybody whom -- who was not authorized to know about it? I think it may have been to people in the press I don't remember having a further conversation with her I was relieved when I learned that the story was not Other than sitting in that room with Mr. Risen, did you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 173 of 232 PageID# 5425 Rice - Cross 708 1 A. I did not at the time and I have not since discussed the 2 program with anyone who was not authorized to know about it. 3 MR. OLSHAN: 4 THE COURT: 5 MR. OLSHAN: 6 THE COURT: 7 MR. POLLACK: 8 9 One moment, Your Honor? Yes, sir. That's all I have for now, Your Honor. All right. Mr. Pollack? Thank you, Your Honor. CROSS-EXAMINATION BY MR. POLLACK: 10 Q. Good afternoon, Dr. Rice. 11 I'm one of the lawyers that represents Mr. Sterling. 12 My name is Barry Pollack, and Dr. Rice, you had indicated to Mr. Olshan that this 13 was the first meeting of this kind that you participated in as 14 the National Security Advisor, correct? 15 A. That's correct. 16 Q. But while this was the first such meeting, this was not 17 the only meeting that you participated in where there had been 18 a disclosure of such sensitive information, correct? 19 A. That is correct. 20 Q. And this also was not the first occasion on which you had 21 asked editors for The New York Times not to run a story, 22 correct? 23 A. 24 prior to this not to run a story, but subsequent to this, I 25 did. I don't recall having asked editors of The New York Times Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 174 of 232 PageID# 5426 Rice - Cross 1 Q. Okay. 2 in evidence? 3 709 If we could pull up Exhibit 108, which is already Dr. Rice, this is a Lotus Note from Bill Harlow at 4 the CIA. Do you know who Mr. Harlow is? 5 A. I do. 6 Q. He was the press person for the CIA? 7 A. That's correct. 8 Q. And this is Mr. Harlow indicating toward the middle of the 9 page, the paragraph that begins, "I reminded"? 10 A. Yes. 11 Q. This is less than 24 hours after Mr. Harlow received a 12 phone call from Mr. Risen about the story that Mr. Risen was 13 working on about Classified Program No. 1? 14 15 MR. OLSHAN: Objection. Can the defense lay a foundation that this witness has any knowledge of that? 16 THE COURT: All right. Lay a foundation first, 17 Mr. Pollack. 18 BY MR. POLLACK: 19 Q. 20 is Mr. Harlow says that he reminded Mr. Risen of a recent 21 occasion on which they had Condi Rice call his publisher to 22 kill a story. 23 A. I don't know to what Mr. Harlow is referring. 24 Q. And you did learn -- you learned about Mr. Risen's story 25 from the press person at the National Security Council, Well, specifically, Dr. Rice, what I want to ask you about Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 175 of 232 PageID# 5427 Rice - Cross 710 1 correct? 2 A. That's my recollection. 3 Q. But you did become aware that a similar call had been made 4 by Mr. Risen to Mr. Harlow, the press person at the CIA? 5 A. 6 he had been called by Mr. Risen, yes. 7 Q. 8 story published, correct? 9 A. That's correct. 10 Q. And as you indicated in your talking points, Exhibit 114, 11 the -- in the middle of the page -- well, it's toward the 12 bottom of the screen now, preventing working nuclear weapons 13 from falling into the hands of rogue states is one of the most 14 important missions of your, the administration you worked for 15 certainly -- 16 A. Yes. 17 Q. -- and any other administration, correct? 18 A. That's correct. 19 Q. And certainly counterproliferation was of great interest 20 at this particular time, correct? 21 A. That's correct. 22 Q. The United States had invaded Iraq the earlier month? I was told by our press people that Bill Harlow said that Okay. And you were aware that the CIA did not want this 23 MR. OLSHAN: 24 THE COURT: 25 Objection. Well, we've heard that before. just move this along, Mr. Pollack. Let's Sustained. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 176 of 232 PageID# 5428 Rice - Cross 711 1 BY MR. POLLACK: 2 Q. 3 counterproliferation was of great interest in the Intelligence 4 Community, correct? 5 A. 6 and, of course, in the Intelligence Community. 7 Q. 8 in time did not want a story published about a 9 counterproliferation program that they were working against Well, specifically, it was of great interest -- It was of great interest throughout the administration And the Intelligence Community particularly at this point 10 Iran, correct? 11 A. 12 thinking. 13 matter. 14 Q. 15 wanted you to meet with The New York Times, correct? 16 A. 17 about it and that they wanted the -- that no one wanted The New 18 York Times to publish this story, and it was actually with the 19 President that I talked about meeting with The New York Times. 20 Q. 21 meeting with The New York Times over the CIA's objection, 22 right? 23 A. No, of course not. 24 Q. Of course not. 25 The New York Times because they believed that you might be I cannot speak to the, what the Intelligence Community was Okay. I can only speak to what I was thinking about this But you were aware that the Intelligence Community I was aware that the Intelligence Community was concerned Okay. What I'm asking is about the CIA. You weren't The CIA very much wanted you to meet with Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 177 of 232 PageID# 5429 Rice - Cross 712 1 effective in convincing The New York Times not to publish the 2 story, correct? 3 A. 4 believed that I might be effective in convincing The Times not 5 to publish the story. 6 Q. 7 communicated to you that the CIA wanted the same thing? 8 A. Of course. 9 Q. It was -- you knew it was important to the CIA? 10 A. It was important to the administration and to the CIA. 11 Q. Yeah. 12 talking points that you used for that meeting, correct? 13 A. That is correct. 14 Q. The talking points that you adhered to very closely? 15 A. That is correct. 16 Q. And the meeting was attended by three officials from the 17 CIA? 18 A. 19 who else was there. 20 Q. 21 Operations was there? 22 A. I don't remember. 23 Q. Do you remember that Mr. Harlow was there? 24 A. I don't remember. 25 Q. And you were aware by the time of the meeting that I wanted to meet with The New York Times because I I understand that, but what I'm asking you is wasn't it And, in fact, it was the CIA that drafted the I remember George Tenet's attendance. I don't remember Do you remember the Assistant Deputy Director of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 178 of 232 PageID# 5430 Rice - Cross 713 1 Mr. Risen had made an inquiry of the NSC press person, correct? 2 A. Yes. 3 Q. And an inquiry of the CIA press person? 4 A. Yes. 5 Q. Were you aware of others? 6 A. I was not aware of others. 7 Q. You don't know how many people Mr. Risen had spoken to at 8 that point? 9 A. I do not. 10 Q. And, Dr. Rice, from your experience at that point, you 11 knew that when the administration wanted to convince someone 12 not to publish a story, there were two tactics that they could 13 employ. 14 they could say that the story was not entirely correct. They could either indirectly confirm the story, or 15 Would you agree with that? 16 A. Well, there are several tactics that one can employ. I 17 would imagine that those are among them. 18 Q. 19 2006? 20 A. Yes. 21 Q. Do you remember telling the FBI that when scheduling a 22 meeting with a publication for the purpose of requesting it not 23 to publish a story, one of two tactics is usually taken: 24 administration either stated that the publication did not have 25 the story entirely correct, or the administration indirectly Do you remember being interviewed by the FBI in April of The Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 179 of 232 PageID# 5431 Rice - Cross 714 1 confirmed the story? 2 A. Those are two of the tactics that you could use, yes. 3 Q. And in this case, the administration chose to employ the 4 former tactic, correct? 5 A. Would you repeat what the former tactic is? 6 Q. Sure. 7 tell the publication that they did not have the story entirely 8 correct. 9 A. That was a part of what I told The New York Times. 10 Q. And that's what you told the FBI was the tactic that you 11 employed? 12 A. 13 what they had told -- had been told was not correct. 14 Q. 15 Times that they did not have the story correct, that might 16 convince them not to publish it, correct? 17 A. 18 other part was that it was a program of significance to 19 national security and that indeed, not only was part of it not 20 correct, but it was inappropriate that they had access to it at 21 all. 22 Q. Hoping that both -- either or both would be effective? 23 A. I certainly hoped, I certainly hoped they would not 24 publish. 25 Q. You told the FBI that the former tactic would be to I told The New York Times that part of the story, part of Because you believed that if you convinced The New York That was one part of what I told The New York Times. The So I said both of those, not just one. But you understood that the danger of employing the tactic Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 180 of 232 PageID# 5432 Rice - Cross 715 1 of trying to convince the publisher that the story is not 2 correct is that you might allow the reporter in doing so to 3 collect additional information about the story? 4 A. 5 what they had was not correct and that they had been 6 inappropriately provided this information, and then to do so 7 within points that did not provide further information to the 8 reporter. 9 My goal was to state for The New York Times that some of It's also why I asked that they not continue to call 10 around to try to confirm the story. 11 Q. 12 the questions of the reporter or in this case his superior is 13 that by doing so, the meeting becomes an interview during which 14 the reporter collects additional information for the story? 15 A. 16 get into a conversation about the story, correct. 17 Q. 18 of the publisher or the bureau chief of the publisher that was 19 there, but the reporter was there, correct? 20 A. That's correct. 21 Q. And in fact, The Times insisted on having Mr. Risen at 22 this meeting, correct? 23 A. I believe that's right. 24 Q. And in your experience, these meetings are often just with 25 the publisher, not with the reporter, correct? Do you recall telling the FBI that the danger in answering That is why I adhered closely to talking points, not to And in this particular meeting, it wasn't just the editor Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 181 of 232 PageID# 5433 Rice - Cross 716 1 A. Well, I can't speak in a general way about this. These 2 meetings are set up with the appropriate people in the room, 3 and if The New York Times wanted to bring the reporter, that 4 was fine with me. 5 Q. 6 would be held with the editor rather than the reporter and that 7 on occasions when a publication presses the government to meet 8 directly with the reporter, you believe it's because the 9 reporter wants to be present to develop additional information Do you remember telling the FBI that often such a meeting 10 for the story? 11 A. 12 this case, The New York Times wanted to bring the reporter, and 13 I didn't object. 14 Q. 15 provide additional information, that's why you rarely -- well, 16 it's why you don't want to stray from the talking points, 17 correct? 18 A. That's correct. 19 Q. And at meetings like this, you personally rarely answer 20 questions, correct? 21 A. 22 ones that involve intelligence information, it was my practice 23 and habit not to stray from the talking points and to defer 24 questions really to the intelligence personnel. 25 Q. I don't remember that specific statement, but clearly in And as you indicated, it's -- because you don't want to In meetings of extraordinary sensitivity, particularly And that's what you did here. You decided it would be up Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 182 of 232 PageID# 5434 Rice - Cross 717 1 to the CIA to determine how much or how little to say, correct? 2 A. That's correct. 3 Q. And you referred to Director Tenet and the others from the 4 CIA to answer questions or to respond to comments from the 5 reporter, correct? 6 A. 7 didn't answer any questions. 8 general, it was preferable to have the agency answer questions, 9 not me. I believe that that is the case. I can't say that I It's a very long time ago, but in 10 Q. You do recall that Director Tenet answered at least one 11 question, a question that was posed by Mr. Risen where he said 12 that he had seen a letter and that suggested that the program 13 was flawed in some way, and Director Tenet told Mr. Risen that, 14 in fact, the letter was intended to suggest that the Iranians 15 needed the services that were being offered? 16 A. I -- 17 MR. OLSHAN: Your Honor, I'm going to object. If 18 Mr. Pollack is going to read from a document, he should show 19 the document to the witness. 20 21 22 23 24 25 THE COURT: a copy? I think that's appropriate. And I need to see one, too. MR. POLLACK: No. Do you have Is it a defense exhibit? Let's go to Government Exhibit 113, which is already in evidence. THE COURT: All right. This is one of Mr. Harlow's Lotus Notes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 183 of 232 PageID# 5435 Rice - Cross 1 MR. POLLACK: 718 In fact, this is Mr. Harlow's notes of 2 the meeting in which Dr. Rice participated. 3 Q. And if you can go to the fifth paragraph? 4 A. Yes. 5 Q. It says, "Risen asked about the issue of whether the 6 Iranians were witting of the program. 7 seen a letter to the Iranians from the Russian which told them 8 that their program was flawed. 9 Director of Central Intelligence? He implied that he had The DCI" -- now, DCI is the 10 A. Yes. 11 Q. That would be Mr. Tenet? 12 A. That's correct. 13 Q. ". . . DCI said that the individual was suggesting to the 14 Iranians that they needed his services, not telling them that 15 the designs they got from him were flawed." 16 Does that match your recollection of what happened? 17 A. These are Mr. Harlow's notes apparently, and I don't 18 recall myself what Director Tenet said in response to the 19 question. 20 Q. 21 Director Tenet -- You don't recall whether in responding to the questions, 22 THE COURT: 23 recall. 24 BY MR. POLLACK: 25 Q. Okay. She's answered the question. She doesn't Do you recall whether Director Tenet gave any Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 184 of 232 PageID# 5436 Rice - Cross 719 1 additional information to Mr. Risen that he didn't have prior 2 to the meeting? 3 A. I don't. 4 Q. Now, this was the only meeting that you were involved in 5 with The New York Times on this issue, correct? 6 A. I believe that's the case. 7 Q. Okay. 8 dissuade Mr. Risen from publishing this story? 9 A. 10 11 You don't know what efforts the CIA made to I do not. MR. POLLACK: I don't have anything further. you, Dr. Rice. 12 THE WITNESS: 13 THE COURT: 14 examination for Secretary Rice? 15 MR. OLSHAN: 16 THE COURT: 17 18 your testimony. Thank you very much. Mr. Olshan, is there any redirect No redirect. All right. Then thank you, ma'am, for You're free to go. THE WITNESS: 19 20 Thank Thank you, Your Honor. (Witness excused.) THE COURT: All right, we're going to go back to 21 witnesses who need the screen, and we'll take a few extra 22 minutes to set the screen up, so let me give the jury a recess 23 until quarter of four to do that. 24 MR. TRUMP: When was that? 25 THE COURT: Until quarter of four. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 185 of 232 PageID# 5437 Denis M. - Direct 1 MR. TRUMP: 2 720 Thank you. (Recess from 3:25 p.m., until 3:43 p.m.) 3 (Defendant present, Jury out.) 4 THE COURT: 5 MR. MAC MAHON: 6 All right, there's an issue? Yes, Your Honor. We're going to have to approach the bench. 7 THE COURT: 8 (Sealed Bench Conference D not transcribed in this 9 Approach the bench. volume.) 10 THE COURT: 11 Mr. MacMahon, I can't pay another attorney; you know 12 All right, let's bring the jury in. that. 13 MR. MAC MAHON: 14 THE COURT: 15 He knows that. All right. (Jury present.) 16 THE COURT: You-all seem to have adopted your own 17 chair. Everybody keeps sitting in the same spot. 18 as long as you're comfortable. That's fine, 19 DENIS M., GOVERNMENT'S WITNESS, AFFIRMED 20 DIRECT EXAMINATION 21 BY MR. TRUMP: 22 Q. Would you state your first name? 23 A. Denis. 24 Q. And your first initial of your last name? 25 A. M. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 186 of 232 PageID# 5438 Denis M. - Direct 721 1 Q. Are you employed by the Central Intelligence Agency? 2 A. Yes. 3 Q. And at some point, were you assigned to the New York 4 office? 5 A. Yes. 6 Q. As a case officer? 7 A. Yes. 8 Q. And at some point in time, did you become the case officer 9 responsible for a human asset we are referring to as Merlin? 10 A. Yes. 11 Q. About what time was that? 12 A. About 2005. 13 THE COURT: 14 THE WITNESS: Mr. M., can you speak up? Oh, I'm sorry. Approximately 2005. 15 BY MR. TRUMP: 16 Q. 17 who had -- who preceded you as a case officer for Merlin? 18 A. Yes. 19 Q. Was there a gap in case officers? 20 A. Yes. 21 Q. So when you met Merlin, who was it that introduced you? 22 A. Bob S. 23 Q. And who is Bob S. in relation to Merlin and the program 24 Merlin was working on? 25 A. And at that time, was there a case officer from New York Bob S. was the headquarters officer responsible for the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 187 of 232 PageID# 5439 Denis M. - Direct 722 1 operation. 2 Q. And he was from the Counterproliferation Division? 3 A. Yes. 4 Q. From that point on, were you the, the last CIA case 5 officer to work with Merlin? 6 A. Yes. 7 Q. When you took over as case officer, did you discuss with 8 Merlin the things he had done with the agency? 9 A. Not in much detail. 10 Q. Were you able to obtain and read past cables with respect 11 to Merlin? 12 A. Very few. 13 Q. Why was that? 14 A. We didn't have access to them at the time. 15 Q. Was that a result of 9/11 and the destruction of the 16 office? 17 A. Yes. 18 Q. So the only cables you were able to review were the 19 current ones? 20 A. Yes. 21 Q. If you had needed past cables, you'd have to make a 22 request of, of headquarters? 23 A. Yes. 24 Q. Did Merlin ever express to you any concerns about any of 25 his past work with the CIA? They were lost then. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 188 of 232 PageID# 5440 Denis M. - Direct 723 1 A. I don't recall specifically, but I think that he had 2 concerns about in general working with the agency if anything 3 was ever compromised. 4 Q. He was concerned for his safety and his security? 5 A. Yeah. 6 operation that he was involved in, what his security would be 7 for that operation. 8 Q. 9 on the possibility of conducting an operation that was We talked about it several times, about any Now, at some point in time, were you working with Merlin 10 completely unrelated to some of the other things he had done? 11 A. Yes. 12 Q. But that was just in the planning stages, is that right? 13 A. Yes. 14 Q. At some point, did you learn that a book had been 15 published? 16 A. Yes. 17 Q. Was that during your tenure as a case officer? 18 A. Yes. 19 Q. As a result of the publication -- was that book State of 20 War, by James Risen? 21 A. Yes. 22 Q. As a result of the publication of that book, did you scrap 23 your plans? 24 A. Did I what? 25 Q. Were the plans scrapped in terms of using Merlin Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 189 of 232 PageID# 5441 Denis M. - Direct 724 1 operationally? 2 A. Eventually, yes. 3 Q. And at some point, did you have to meet with him and 4 discuss the fact that this book was published? 5 A. Immediately because of fear for his security. 6 Q. And that was reflected in a cable you drafted? 7 A. I believe so, yes. 8 Q. And was there then a second meeting with him? 9 A. I don't have access to any of the cables, so I don't know 10 how many. 11 12 There were subsequent meetings, yes. MR. TRUMP: Is there any objection to those two cables? 13 MR. MAC MAHON: 14 THE COURT: What are the cable numbers? 15 MR. TRUMP: 133 and 135, I believe. 16 THE COURT: 133 and 135? 17 MR. MAC MAHON: 18 THE COURT: 19 (Government's Exhibit Nos. 133 and 135 were received 20 Well, just move them in. No objection, Your Honor. All right, they're both in. in evidence.) 21 THE WITNESS: 22 BY MR. TRUMP: 23 Q. 24 right? 25 A. Yes, I wrote those cables. And 133 was a cable written on January 6 of 2006; is that Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 190 of 232 PageID# 5442 Denis M. - Direct 725 1 Q. And that was the first meeting you had with Merlin and 2 Mrs. Merlin over the publication of the book? 3 A. Yes. 4 Q. And then the second cable was January 23, 2006; is that 5 right? 6 A. Yes. 7 Q. The first meeting, Bob S. accompanied you; is that right? 8 A. Yes. 9 Q. And then the second meeting was just you? 10 A. Yes. 11 Q. How much longer after that did you have contact with 12 Merlin? 13 A. Several years. 14 Q. About two years? 15 A. I'd have to look at the cable traffic to be sure. 16 so, yes. 17 Q. And during that time, he was still paid a salary? 18 A. Yes, yes. 19 Q. Were you the case officer responsible for coordinating his 20 payments? 21 A. To make sure he got paid, yes. 22 Q. Did he occasionally have some questions/concerns about his 23 payments? 24 A. 25 payments. I think It was only over the tax year in which he had to declare So if he was paid in January for December salary, he Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 191 of 232 PageID# 5443 Denis M. - Direct 726 1 wanted to know which year he had to declare the taxes for that 2 salary. 3 Q. And that came up every January? 4 A. Pretty much. 5 Q. And at some point, those -- his salary and his operational 6 use for the agency was terminated? 7 A. Yes. 8 MR. TRUMP: The Court's indulgence? 9 THE COURT: Yes, sir. 10 BY MR. TRUMP: 11 Q. 12 Do you know James Risen? 13 A. No. 14 Q. Have you ever spoken to him? 15 A. No. 16 Q. Have you ever spoken to anyone from the media about Merlin 17 or Classified Program No. 1? 18 A. I've never spoken to the media nor the Merlin operation. 19 Q. Without describing what Merlin said after he read the 20 book, what was his, his reaction? 21 Now, the book was published and authored by James Risen. MR. MAC MAHON: Your Honor, I'm going to object. 22 This was litigated before, and now they're going to hear Merlin 23 testify as to what happened. 24 couldn't put in an excited utterance. 25 THE COURT: You've already found they Not asking for statements. This witness Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 192 of 232 PageID# 5444 Denis M. - Cross 727 1 can describe the physical reaction. 2 observation he can make. 3 That's certainly an So did you notice anything about him physically when 4 you told him the news? 5 BY MR. TRUMP: 6 Q. 7 what his reaction was. 8 A. 9 shocked, very unlike I'd ever seen him before. 10 Without saying anything about what he said, just describe Yes. He was very stressed, very nervous, very scared, He's generally unanimated. 11 MR. TRUMP: That's all I have, Your Honor. 12 THE COURT: All right, cross-examination? 13 CROSS-EXAMINATION 14 BY MR. MAC MAHON: 15 Q. 16 lawyers for Mr. Sterling. 17 A. Good afternoon. 18 Q. Just a few questions. 19 right? 20 A. No. 21 Q. Never had any interaction with him whatsoever? 22 A. No. 23 Q. Okay. 24 in which you said in 2006 that there still wasn't a complete 25 file on Classified Program No. 1 at the New York office? Mr. M., my name is Edward MacMahon. I'm one of the Good afternoon. You don't know Mr. Sterling at all, Now, you, you gave an interview to the FBI in 2006 Am I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 193 of 232 PageID# 5445 Denis M. - Cross 728 1 right in reading it that way? 2 A. Is Classified Program No. 1 the Merlin operation? 3 Q. Yes. 4 A. I'm sorry, I didn't -- 5 Q. I think I may have been confused, but you testified that 6 you didn't have a complete file in the New York office. 7 A. That's correct. 8 Q. Okay. 9 A. From the day that I started the case. 10 Q. Okay. 11 A. About 2005. 12 Q. And so in 2005, the -- there was a complete file in 13 Langley, though, whatever that was, correct? 14 A. I'm sure there was one in Langley, yeah. 15 Q. Okay. 16 Washington? 17 A. No. 18 Q. Did you ever see that there were -- I'm trying to 19 understand. 20 and the day you saw the file wanted to see the complete file or 21 access the complete file, they had to be in headquarters, 22 correct? 23 A. I assume so because I didn't have access to it. 24 Q. Do you know whether that was the state of the file -- as 25 far as you know, that was the state of the file from September And when was that? And that date was what? And did you, did you ever go and review the file in So if somebody between the September 11 attacks Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 194 of 232 PageID# 5446 Denis M. - Cross 729 1 11, '01, to when you saw it as well? 2 A. 3 an electronic file somewhere at headquarters. 4 Q. At headquarters. 5 A. Yeah. 6 Q. I'm probably asking you bad questions, but by -- there 7 wasn't a complete file in New York after the September 11 8 attack? 9 A. No. 10 Q. So somebody that wanted to get access to cables after 9/11 11 and other documents would have to be in headquarters here in 12 Washington, right? 13 A. 14 have access to them. 15 Q. But you know they weren't in New York? 16 A. They were not available to me. 17 Q. And was there ever a year that, that you were in charge of 18 handling Merlin in which he made $60,000 a year? 19 A. I don't recall specifically how much he made per year. 20 Q. And Merlin never called you or Mrs. Merlin called you and 21 said that they were actually threatened at all, that anyone had 22 come to their house or called or e-mailed? 23 A. 24 specifically other than they were generally afraid for their 25 safety because they several times said that the Russians kill As far as I know, there was no physical file. I don't know what the process would have been. There was I didn't That's all I know. That they called anybody. Nothing, right? I don't recall anything Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 195 of 232 PageID# 5447 Denis M. - Redirect 730 1 people for much less and demonstrated publicly, and so my point 2 was to try to calm them down. 3 Q. But that never happened to them, right? 4 A. They're still alive as far as I know. 5 MR. MAC MAHON: 6 THE COURT: 7 That's all, Your Honor. BY MR. TRUMP: 9 Q. Any redirect? You haven't had any contact with them since approximately 10 2008, correct? 11 A. That's right. 12 THE COURT: 13 MR. MAC MAHON: 14 THE COURT: Any recross? No, Your Honor. All right, thank you, sir, for your testimony. 16 THE WITNESS: 17 THE COURT: 18 Thank you. You're free to go. (Witness excused.) 19 THE COURT: 20 MR. FITZPATRICK: 21 The Court's indulgence for one moment? 22 THE COURT: 23 All right, Mr. Fitzpatrick? 24 MR. FITZPATRICK: 25 Thank you. REDIRECT EXAMINATION 8 15 I don't -- Call the next witness. Thomas H., Your Honor. Yes, sir. Everything okay? Yes, thank you, Your Honor. THOMAS H., GOVERNMENT'S WITNESS, AFFIRMED Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 196 of 232 PageID# 5448 Thomas H. - Direct 1 731 DIRECT EXAMINATION 2 BY MR. FITZPATRICK: 3 Q. Good afternoon, sir. 4 A. Yes, I am. 5 Q. Sir, give us a brief description of your current 6 occupation, an overview. 7 A. Currently? 8 Q. Currently. 9 A. Currently in Corporate America, in a managerial position. 10 Q. Did you have a prior career? 11 A. Yes, I did. 12 Q. What is that prior career? 13 A. I was an operations officer at the Central Intelligence 14 Agency. 15 Q. When did you retire? 16 A. At the end of 2010. 17 Q. How long was your career? 18 A. Just shy of 24 years. 19 Q. I want to direct your attention to the New York office. 20 Were you ever assigned there? 21 A. Yes, I was. 22 Q. Were you assigned there in a supervisory capacity? 23 A. Yes, I was. 24 Q. When did you leave the New York office? 25 A. July of 2000. Are you Thomas H.? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 197 of 232 PageID# 5449 Thomas H. - Direct 732 1 Q. And while you were assigned to the New York office and in 2 your supervisory capacity, do you see anyone in the courtroom 3 today that you recognize from that time? 4 A. Yes, I do. 5 Q. And who do you recognize? 6 A. Mr. Sterling. 7 Q. Would you please identify him? 8 A. The gentleman right there (indicating). 9 THE COURT: 10 That's fine. MR. FITZPATRICK: Thank you, Your Honor. 11 Q. With respect to your supervisory responsibilities on 12 Mr. Sterling, were you familiar with an individual where he 13 was the case officer that we're calling Merlin, or Human Asset 14 No. 1? 15 A. Yes. 16 Q. And why is it that you were familiar with that, that 17 program? 18 A. 19 involved with that case. 20 Q. 21 limited to your administrative responsibilities over 22 Mr. Sterling? 23 A. Yes. 24 Q. With respect to the operational details of that program, 25 did you have any involvement in that? I was Mr. Sterling's supervisor at the time that he was So was your involvement or knowledge of that program Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 198 of 232 PageID# 5450 Thomas H. - Direct 733 1 A. No. 2 Q. And where was that program being run from or supervised 3 from? 4 A. Out of our headquarters. 5 Q. In your administrative or supervisory capacity over 6 Mr. Sterling, did you have access to the cables produced in, in 7 that program? 8 A. Yes, I did. 9 Q. And for what reason? 10 A. To ensure that the right operational reporting, 11 administrative reporting, and intelligence reporting came out 12 of a meeting cycle. 13 Q. 14 when you left. 15 A. July of 2000. 16 Q. Is that when your supervisory responsibilities -- on or 17 about that time, did your supervisory responsibilities for 18 Mr. Sterling end? 19 A. Yes. 20 Q. What happened to your ability to access the program that I 21 mentioned regarding Mr. Merlin, or Human Asset 1? 22 A. After I left? 23 Q. Yes. 24 A. I don't have access to it anymore. 25 Q. I want to show you -- it's Government Exhibit No. 83, When you left the New York office -- and tell us again Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 199 of 232 PageID# 5451 Thomas H. - Direct 1 734 please, Mr. Wood. 2 THE COURT: 3 MS. HAESSLY: 4 THE COURT: 5 (Government's Exhibit No. 83 was received in 6 Is there any objection to 83? No objection, Your Honor. All right, it's in. evidence.) 7 MR. FITZPATRICK: We can publish it. 8 Q. So the first page of this, Mr. H., it's an article dated 9 March 2, 2002, "Fired by CIA, He Says Agency Practiced Bias." 10 Have you seen this before? 11 A. Yes. 12 Q. And the name James Risen, are you familiar with that name? 13 A. Yes. 14 Q. Have you ever spoken with Mr. Risen? 15 A. No. 16 Q. Have you ever had any personal contact with Mr. Risen? 17 A. No. 18 Q. Have you ever provided any information at any time to 19 Mr. Risen? 20 A. No. 21 Q. I want to direct your attention to the second page of 22 Government Exhibit 83 and perhaps even direct your attention 23 further to the middle column. 24 about? 25 A. Do you see where I'm talking Yes, I do. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 200 of 232 PageID# 5452 Thomas H. - Direct 735 1 Q. Do you recognize any language that's in the second column? 2 A. Yes, I do. 3 assigned." 4 Q. 5 paragraph? 6 A. 7 spies, and soon received a positive evaluation. 8 'demonstrated good tradecraft in the handling of his assigned 9 cases,' according to an evaluation in September 1999 by a The paragraph beginning with "Again, he was If you would, please, could you just read that entire "Again, he was assigned to try to recruit Iranians as Mr. Sterling 10 supervisor and provided by Mr. Sterling." 11 Q. 12 "demonstrated good tradecraft in the handling of his assigned 13 cases"; is that correct? 14 A. Yes. 15 Q. And how do you recognize that language? 16 A. It appears it came out of the evaluation I wrote on 17 Mr. Sterling. 18 Q. Do you recognize that as something you wrote? 19 A. Yes, the part in quotes. 20 Q. And you've never provided that to Mr. Risen; is that 21 correct? 22 A. No. 23 Q. I want to show you now, please, Government Exhibit No. 59. And part of what you just read is quoted, and it says, 24 THE COURT: 25 MS. HAESSLY: Any objection to 59? No objection, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 201 of 232 PageID# 5453 Thomas H. - Direct 736 1 THE COURT: All right, it's in. 2 (Government's Exhibit No. 59 was received in 3 evidence.) 4 BY MR. FITZPATRICK: 5 Q. 6 what is a performance appraisal review? 7 A. 8 during that period. 9 Q. And who prepares -- and is the acronym "PAR"? 10 A. PAR, yeah. 11 Q. Who prepares PARs? 12 A. The immediate supervisor. 13 Q. And did you have responsibility for preparing PARs for 14 Mr. Sterling? 15 A. Yes. 16 Q. Turning to the second page, do you see a reference there 17 to a Mr. H.? 18 A. Yes. 19 Q. And who is Mr. H.? 20 A. Me. 21 Q. And do you recognize -- you've had a chance to review this 22 document prior to today? 23 A. Yes. 24 Q. And do you recognize -- what is this document? 25 A. This is Mr. Sterling's PAR. I want to turn to the second page -- well, first of all, It's an annual report of an officer's accomplishments Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 202 of 232 PageID# 5454 Thomas H. - Direct 737 1 Q. That you prepared? 2 A. Yes. 3 THE COURT: For what time period? 4 THE WITNESS: 5 MR. FITZPATRICK: 10 January '99 to 31 July '99. 6 that on the screen, please? 7 second page, please. 8 THE COURT: 9 If we could, Mr. Francisco, put It's Exhibit 59. Just turn to the And, counsel, just so the jury is clear about this, in this document, there are white spaces which 10 reflect deleted information, and there's also different type, 11 and where there's that smaller dark, black type, that was a 12 word substituted, correct, counsel, so we're clear about how 13 this exhibit was put together? 14 MR. FITZPATRICK: 15 THE COURT: Correct. And again, I warned you during voir dire 16 this was done for security reasons, so that's why this 17 document, it's a little hard to read, but that's why it looks 18 the way it does. 19 All right, are you ready to go? 20 MR. FITZPATRICK: Just to be clear, Your Honor, this 21 document -- and I can get into this with the witness -- there 22 were two phases of redactions done to this document, one when 23 it was initially distributed and then one for the preparation 24 of this trial. 25 redactions. I'm only getting into the first phase of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 203 of 232 PageID# 5455 Thomas H. - Direct 1 THE COURT: 738 All right. 2 BY MR. FITZPATRICK: 3 Q. 4 the document. 5 begins, "Subject fully and completely met expectations." 6 you recall writing that? 7 A. Yes. 8 Q. And then it continues, "Subject demonstrated good 9 tradecraft in the handling of his assigned cases." So, Mr. H., directing your attention -- you can look at At the bottom, there's a sentence that Do Do you 10 recognize that? 11 A. Yes, I do. 12 Q. Did you write that? 13 A. Yes, I did. 14 Q. And is that the same language that appears in Mr. Risen's 15 article published March 2, 2002? 16 A. Yes, it is. 17 Q. Thank you. 18 You can close that. Oh, one other question: Are you familiar with when 19 individuals, case officers go into an Equal Employment 20 Opportunity process, or EEO process -- 21 A. Yes, I am. 22 Q. -- what happens to their name? 23 A. They're assigned another name for the course of the EEO 24 procedure. 25 Q. By whom? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 204 of 232 PageID# 5456 Thomas H. - Direct 739 1 A. An EEO officer at headquarters. 2 Q. Okay. 3 is the name reflected there? 4 A. Samuel Crawford. 5 Q. You don't -- do you know a Samuel Crawford? 6 A. No, I don't. 7 Q. But you're confident that this is an evaluation that you 8 prepared for Mr. Sterling? 9 A. Yes, I am. 10 Q. All right, thank you. So turning to the first page of that document, what 11 MR. POLLACK: 12 THE COURT: 13 Your Honor, if I might? Well, wait, why are you objecting? think your colleague is handling this witness. 14 MR. POLLACK: 15 THE COURT: 16 MR. POLLACK: 17 I She is. Well, then she's the only one who can -I'm not objecting, Your Honor. I was just asking for a clarification on the document. 18 THE COURT: 19 MR. POLLACK: One counsel per witness. Thank you. That's fine, Your Honor. 20 BY MR. FITZPATRICK: 21 Q. 22 pending, Your Honor. 23 THE COURT: 24 (Discussion between Mr. Fitzpatrick and Ms. Haessly 25 During -- I'm just waiting to see if there's an objection 59 is already in so -- off the record.) Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 205 of 232 PageID# 5457 Thomas H. - Direct 740 1 BY MR. FITZPATRICK: 2 Q. 3 Mr. Sterling, did you ever have any conversations with 4 Mr. Sterling where he expressed dissatisfaction or perhaps 5 mishandling of an operation? 6 A. No. 7 Q. Had he expressed to you that a program was mishandled, is 8 that something you would have remembered? 9 A. Yes. 10 Q. And if that had been expressed to you, what would you have 11 been required to do? 12 A. 13 appropriate cable traffic to headquarters. 14 Q. And did you ever have to do that in this case? 15 A. No. With respect to your supervisory responsibilities with Notify my immediate supervisor as well as sending the 16 17 MR. FITZPATRICK: The Court's indulgence for one moment? 18 THE COURT: Yes, sir. 19 BY MR. FITZPATRICK: 20 Q. 21 over the Merlin file, did you ever remove any cables from the 22 cable traffic? 23 A. No. 24 Q. Or the electronic database? 25 A. No. During your -- in your administrative responsibilities The electronic database, no. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 206 of 232 PageID# 5458 Thomas H. - Cross 741 1 Q. You never removed anything? 2 A. No. 3 Q. Final question: 4 received an unexpected phone call? 5 A. Yes. 6 Q. And from whom did you receive that phone call? 7 A. James Risen. 8 Q. And where did the -- where did Mr. Risen call you? 9 A. My cell phone. 10 Q. Did you take the call? 11 A. No. 12 Q. And how do you know it's James Risen? 13 A. On the voice mail, he said, "This is James Risen. 14 like to talk to you about CIA and Iran. 15 back." 16 Q. Did you return the call? 17 A. No. 18 Q. And again, have you ever had any contact with James Risen? 19 A. No. Have you in the last several months 20 MR. FITZPATRICK: 21 THE COURT: 22 MS. HAESSLY: 23 I'd Please give me a call Nothing further, Your Honor. All right, cross-examination? Thank you, Your Honor. CROSS-EXAMINATION 24 BY MS. HAESSLY: 25 Q. Good afternoon, Mr. H. My name is Mia Haessly, and I'm Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 207 of 232 PageID# 5459 Thomas H. - Cross 1 742 one of the attorneys for Mr. Sterling. 2 You testified that you had administrative 3 responsibilities for Mr. Sterling while you were his 4 supervisor? 5 A. In the Merlin case. 6 Q. And as part of those administrative responsibilities, did 7 you review the cables that he authored? 8 A. Yes. 9 Q. Including cables about Classified Program No. 1? 10 A. Yes. 11 Q. So in your review then, you would have become familiar 12 with the details, with certain details about Classified Program 13 No. 1? 14 A. Yes. 15 Q. And once the cable was sent to headquarters or wherever it 16 was sent to, any number of people there would also become 17 familiar with details about Classified Program No. 1? 18 A. Yes. 19 Q. Mr. Fitzpatrick asked you about a performance evaluation. 20 I believe that was Exhibit 59? Can we pull that up again? 21 Do you know if a declassified version of one of these 22 performance evaluations is made available to an employee during 23 a litigation? 24 A. 25 I wouldn't know. THE COURT: I'm sorry, what is your answer? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 208 of 232 PageID# 5460 Thomas H. - Cross 1 THE WITNESS: 2 THE COURT: 743 I wouldn't know. You would not know, all right. 3 BY MS. HAESSLY: 4 Q. 5 it appears that the word "Secret" has been whited out. 6 A. I'm sorry, can you repeat that? 7 Q. At the bottom of this exhibit, it appears that the 8 word "Secret" has been -- has a slash through it at the bottom. 9 A. And in this particular exhibit, if you look at the bottom, It appears partial. I can't see a slash, but I see parts 10 of "Secret" in there. 11 Q. 12 of the PAR? 13 A. I don't know. 14 Q. Have you seen a declassified version of this? 15 A. No. 16 Q. Mr. H., while you were Mr. Sterling's supervisor, did you 17 ever see Mr. Sterling mishandle classified documents? 18 A. No. 19 Q. Did you ever see Mr. Sterling mishandle Human Asset No. 1, 20 who we refer to as Mr. Merlin? 21 A. No. 22 Q. In fact, you told the FBI during an interview that you 23 thought he handled him well; is that correct? 24 A. 25 handled his assigned cases well. Do you know whether this exhibit is a declassified version In the PAR, they asked me the question, and I said he Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 209 of 232 PageID# 5461 Thomas H. - Cross 744 1 Q. And do you recall being interviewed by the FBI? 2 A. How long ago was that? 3 Q. In 2003. 4 A. Yeah. 5 Q. And during that interview, you told the FBI that Sterling 6 did well handling the Merlin asset? 7 A. Right. 8 MS. HAESSLY: One moment, please. 9 Nothing further, thank you. 10 THE WITNESS: 11 THE COURT: 12 MR. FITZPATRICK: 13 THE COURT: 14 15 testimony. Thank you. Any redirect? No, Your Honor. All right, sir, thank you for your You're free to go at this time. THE WITNESS: 16 Thank you. (Witness excused.) 17 THE COURT: Call the next witness. 18 MR. TRUMP: There's one logistical issue with this 19 witness that we need to take up at the bench. 20 THE COURT: All right. Regular machine? 21 MR. TRUMP: Yes, regular. 22 THE COURT: All right. 23 (Bench conference on the record.) 24 THE COURT: Yes. 25 MR. TRUMP: The next witness is the witness who Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 210 of 232 PageID# 5462 745 1 prepared a PAR which we believe is quoted directly in the book, 2 but a portion of the quote refers to covert action operation. 3 I would like to simply read to the witness the part of the 4 quote that doesn't refer to anything that's off limits. 5 I don't want to show it on the screen, so that I 6 don't want to draw attention to those words that are quoted in 7 the book. 8 "One secret CIA report said that the Russian was a known 9 handling problem due to his demanding and overbearing nature," 10 and ask if that is the language in the PAR, and then say, "Yet 11 the same report stated he was also a sensitive asset," period. 12 Ask him if that's the language in the PAR, without reading the 13 next line, because I don't want to draw attention to that part. 14 15 So in other words, I would just read to the witness, THE COURT: What's your view of that? I mean, the problem is you've put the exhibit into evidence. 16 MR. TRUMP: I can't change what Mr. Risen wrote. 17 THE COURT: I understand that, and I don't understand 18 how that reveals anything whatsoever since you've already 19 clearly established for this jury significant inaccuracies in 20 the chapter. 21 22 MR. TRUMP: 25 This is a quote from the PAR. Mr. Risen is quoting a CIA document, and he's putting it in quotes. 23 24 That could be just as inaccurate. THE COURT: Are you going to put that PAR in evidence MR. TRUMP: Yes, but that part -- those words are as well? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 211 of 232 PageID# 5463 Mark L. - Direct 746 1 redacted. 2 those words. 3 the quote comes from his PAR. 4 So I just want -- I don't want to draw attention to I'm just going to confirm that the first part of THE COURT: All right, I'm going to permit that. Of 5 course, the jury, you know, this jury is paying rapt attention. 6 If they put the two side by side, they'll see it themselves. 7 8 MR. TRUMP: If they do that, they do that, but I can't elicit that fact from those witnesses. 9 THE COURT: All right. 10 MR. MAC MAHON: 11 MR. TRUMP: 12 That's fine. So I'm not going to have it up on the screen. 13 MR. MAC MAHON: I'm not sure how I can object. 14 THE COURT: 15 (End of bench conference.) You can't. 16 MARK L., GOVERNMENT'S WITNESS, AFFIRMED 17 DIRECT EXAMINATION 18 BY MR. TRUMP: 19 Q. Would you please state your first name? 20 A. Mark. 21 Q. And the first initial of your last name? 22 A. L. 23 Q. Had you previously worked for the Central Intelligence 24 Agency? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 212 of 232 PageID# 5464 Mark L. - Direct 747 1 Q. For how long? 2 A. Twenty-one years. 3 Q. And are you now retired from the official employment by 4 the CIA? 5 A. Yes. 6 Q. Do you still have a contractor relationship with the 7 agency? 8 A. Yes. 9 Q. Do you know the defendant, Mr. Sterling? 10 A. Yes. 11 Q. In what capacity? 12 A. I worked with him in New York. 13 Q. How long had you worked in New York? 14 A. Three years. 15 Q. From when to when? 16 A. July 1999-June 2002. 17 Q. And what was your position with respect to Mr. Sterling? 18 A. I was his supervisor, branch chief. 19 Q. And did you in turn report to someone else? 20 A. Yes. 21 Q. Was that Thomas H.? 22 A. Yes. 23 Q. And what were your duties as a branch supervisor with 24 respect to Mr. Sterling's job responsibilities? 25 A. I set the expectations. I provided oversight to his Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 213 of 232 PageID# 5465 Mark L. - Direct 748 1 activities. I wrote his performance appraisal. 2 Q. Were you generally familiar with his workload then? 3 A. Yes. 4 Q. And the operations that he was working on? 5 A. Yes. 6 Q. Are you familiar with a Counterproliferation Division 7 operation that we have called Classified Program No. 1 8 involving a human asset, a Russian known as Merlin? 9 A. Yes. 10 Q. Do you know generally what that operation was about? 11 A. Yes. 12 Q. And during your tenure, was Mr. Sterling a case officer 13 responsible for that? 14 A. I'm sorry, could you repeat that? 15 Q. Was Mr. Sterling the case officer responsible for that 16 operation? 17 A. Yes. 18 Q. Were there any other case officers in New York who worked 19 on it? 20 A. Yes. 21 Q. At the same time as Mr. Sterling? 22 A. No. 23 Q. What was your responsibility with respect to cables that 24 Mr. Sterling would have to draft as part of his role as a case 25 officer in this operation? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 214 of 232 PageID# 5466 Mark L. - Direct 749 1 A. I recall some occasions where I reviewed his write-up on 2 the case. 3 Q. 4 cables? 5 A. Yes. 6 Q. So you were read into the program for that purpose? 7 A. Yes. 8 Q. And this was a, a limited access program requiring someone 9 to be read in before they had any access to documents or cables And that was a typical role of a supervisor, to review 10 of the program, correct? 11 A. Yes. 12 Q. At any time, do you recall removing language or cables 13 drafted by Mr. Sterling? 14 A. No. 15 Q. As a supervisor, you had to do his evaluation? 16 A. Yes. 17 Q. And did you prepare an evaluation for the period August 1, 18 '99, to July 31, 2000? 19 A. Yes. 20 Q. And that is typically called a performance appraisal 21 report, or PAR? 22 A. That's correct. 23 MR. TRUMP: Could we have Exhibit 60, please? 24 THE COURT: Any objection to 60? 25 MR. MAC MAHON: No objection, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 215 of 232 PageID# 5467 Mark L. - Direct 750 1 THE COURT: All right, it's in. 2 (Government's Exhibit No. 60 was received in 3 evidence.) 4 BY MR. TRUMP: 5 Q. 6 is that right? 7 A. Yes. 8 Q. It doesn't have Mr. Sterling's name on it, does it? 9 A. No. 10 Q. But you've reviewed this, and you can testify that this 11 is, in fact, the evaluation you did for Mr. Sterling? 12 A. Yes. 13 Q. It has a fictitious name, Samuel Crawford? 14 A. Yes. 15 Q. At the bottom of page 2 and the top of page 3, do you see 16 that language: 17 A. Yes. 18 Q. And did you write, "Subject securely and productively 19 handled a sensitive asset who was a known handling problem due 20 to his demanding and overbearing nature"? 21 A. Yes. 22 Q. And, "Subject persevered with this asset and applied his 23 tradecraft skills to work around these problems and guide the 24 asset through the successful first stage of a . . . classified 25 operation"? And prior to trial yesterday, you reviewed this exhibit; "Subject fully met expectations"? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 216 of 232 PageID# 5468 Mark L. - Direct 751 1 A. Yes. 2 Q. What is your practice in preparing a PAR? 3 start the, the PAR process? 4 A. 5 would call a brag sheet on their accomplishments, and then I 6 would prepare, draft the PAR from that and from my own 7 knowledge of the individual's cases. 8 Q. 9 here, without the redactions and the substitutions? How do you Normally I would ask the employee to provide notes, what I And then from that, you drafted the actual document we see 10 A. Yes. 11 Q. Then what would you do? 12 A. Before it was transmitted to the headquarters, it would be 13 discussed with the employee. 14 process by one of my superiors. 15 Q. So you sat down with Mr. Sterling and discussed this? 16 A. I don't recall. 17 Q. And was your practice also to provide them with copies? 18 A. Yes. 19 Q. As originally drafted, they're marked Secret and kept 20 classified? 21 A. I'm sorry, say it again? 22 Q. As originally drafted, they're marked Secret and 23 maintained as classified documents? 24 A. 25 There may also be a reviewing Yes. MR. TRUMP: With the help of Mr. Wood? Just show him Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 217 of 232 PageID# 5469 Mark L. - Direct 752 1 that. 2 Q. 3 and I'd just like to read a portion of it and ask you a 4 question. 5 report said that the Russian 'was a known handling problem due 6 to his demanding and overbearing nature.'" What I've showed you is a copy of Government Exhibit 132, 7 The first sentence of paragraph 20, "One Secret CIA That is the identical language from the PAR you 8 prepared, is it not? 9 A. Yes. 10 Q. And the book goes on to say, "Yet the same report stated 11 that he was also a 'sensitive asset' . . .. 12 that phrase, "sensitive asset," in your PAR, correct? 13 A. Yes. 14 Q. Now, were you in New York on 9/11, 2001? 15 A. Yes. 16 Q. Were you in the office that day? 17 A. Yes. 18 Q. Was the office completely destroyed? 19 A. Yes, it was. 20 Q. So all of your files were destroyed? 21 A. Yes, they were. 22 Q. Did you keep copies of these PARs after you prepared them? 23 A. I'm not sure I understand. 24 Q. Did you keep -- did you have any reason to keep copies of 25 the PAR that we just discussed in your office? Again, you used Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 218 of 232 PageID# 5470 Mark L. - Direct 753 1 A. In the office, we would keep copies of PARs for all the 2 employees. 3 Q. But those were destroyed in, in 9/11? 4 A. To my knowledge, everything was destroyed. 5 Q. Did you ever either orally or in writing give that 6 information to James Risen? 7 A. No. 8 Q. Have you ever spoken to James Risen? 9 A. No. 10 Q. Do you know James Risen? 11 A. No. 12 Q. With respect to Classified Program 1 and the cables that 13 you had reviewed with respect to that, did you ever provide any 14 information about that program to anyone outside the CIA? 15 A. No. 16 Q. Now, during your tenure as a CIA case officer, you had 17 been overseas for periods of time? 18 A. Yes, 13 years. 19 Q. And you also taught case officers; is that right? 20 A. Yes. 21 Q. You were a training officer for several years? 22 A. I was an instructor for two years. 23 Q. In the mid-1990s? 24 A. Yes. 25 Q. Is it part of the instruction of -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 219 of 232 PageID# 5471 Mark L. - Direct 754 1 A. Late 1990s. 2 Q. Was it part of the instruction of case officers to train 3 them in the handling of classified materials? 4 A. Yes. 5 Q. Was it part of the instruction to train them in the 6 protection of human assets? 7 A. Yes. 8 Q. Was it also part of the instruction to train them to 9 understand why it was necessary to maintain the secrecy of 10 human assets and their relationship with the CIA? 11 A. Yes. 12 MR. TRUMP: The Court's indulgence? 13 THE COURT: Yes, sir. 14 BY MR. TRUMP: 15 Q. 16 get these PARs? 17 A. Those above me? 18 Q. Those above you. 19 A. Yes. 20 Q. Are they sent out to any other -- let me back up. 21 there any reason, for example, that the Counterproliferation 22 Division would need access to a PAR from someone in New York? 23 In the chain of command at, at New York, do those people MR. MAC MAHON: 24 BY MR. TRUMP: 25 Q. Is Your Honor, objection to foundation. If you know. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 220 of 232 PageID# 5472 Mark L. - Cross 755 1 THE COURT: 2 THE WITNESS: If you know. I don't know. 3 BY MR. TRUMP: 4 Q. But Thomas H. would have -- would review this, correct? 5 A. Yes. 6 Q. And then Charlie Seidel would review it? 7 A. Yes. 8 Q. And David Cohen would review it? 9 A. Yes. 10 MR. TRUMP: That's all I have. 11 THE COURT: Mr. MacMahon? 12 MR. MAC MAHON: 13 Thank you, Your Honor. CROSS-EXAMINATION 14 BY MR. MAC MAHON: 15 Q. 16 lawyers for Mr. Sterling. 17 A. Yes. 18 Q. Did you work in the same office with Mr. Sterling? 19 A. Same branch. 20 Q. Were you physically in the same office with him at any 21 time in 1999 or 2000? 22 A. On occasion. 23 Q. Was it, was it in the same building? 24 A. Yes. 25 Q. And in that time, you never saw him mishandle any Mr. L., my name is Edward MacMahon. I'm one of the Good afternoon. I had my own office. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 221 of 232 PageID# 5473 Mark L. - Cross 756 1 classified information at all, did you? 2 A. No. 3 Q. You never saw him leaving with a backpack full of 4 documents or anything of the sort, right? 5 A. No. 6 Q. And were people in that office able just to come and go 7 with documents without being searched at all during 1999 and 8 2000? 9 A. Yes. 10 Q. There was no security at all in the office to stop anybody 11 from leaving with any documents at all; is that your testimony? 12 A. 13 packages? 14 Q. Yeah. 15 A. Well, yes, there was security. 16 Q. No spot checks on employees leaving with information or 17 coming and going or anything? 18 A. 19 checked. 20 Q. 21 documents or misplaced classified documents whatsoever, right? 22 A. That's correct. 23 Q. The document that Mr. Trump showed you, Exhibit No. 60 -- 24 right? 25 A. You mean is there someone at the door checking our Was there any security at all? I don't recall any spot checks of someone's baggage being And nobody reported to you that Mr. Sterling had taken Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 222 of 232 PageID# 5474 Mark L. - Cross 757 1 Q. Can you look at that again, please, Government Exhibit 60? 2 A. Okay. 3 Q. That's not a Secret report, is it? 4 A. It was a Secret report when it was prepared in our office 5 and sent to our headquarters. 6 Q. 7 afterwards, correct? 8 A. At our headquarters, you mean? 9 Q. Ever, by anybody. And you don't know whether the document was declassified You don't know whether this document 10 was declassified after you prepared it, correct? 11 A. Not to my knowledge. 12 Q. In fact, the markings on the -- the Secret markings on the 13 bottom of this have been almost completely erased, haven't 14 they? 15 A. Well, the document's been heavily redacted. 16 Q. Right. 17 was originally marked, originally marked as Secret, correct? 18 A. It was. 19 Q. And you don't -- you can't tell us if in the litigation 20 process with Mr. Sterling, he received a declassified version 21 of this document, correct? 22 A. I'm not sure what you're referring to, litigation process. 23 Q. Are you familiar at all with the process with EEO claims 24 and what happens once they're initiated at the CIA? 25 A. If you look at the bottom of all four pages. And Mr. Trump's question to you was whether this No. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 223 of 232 PageID# 5475 Mark L. - Cross 758 1 Q. So you wouldn't be a witness who could tell us if 2 Mr. Sterling did receive a declassified version of this? 3 A. I could not tell you. 4 Q. And this document actually does -- you know that there was 5 a discrimination case and EEO complaint filed by Mr. Sterling, 6 correct? 7 A. Yes. 8 Q. Okay. 9 page, it's just not marked, and that's the first full And then on page 2 of this document, the second 10 paragraph -- if I may, Your Honor, can I show Mr. Francisco 11 which one to highlight? 12 THE COURT: Go ahead. 13 MR. MAC MAHON: Thank you, Your Honor. 14 Q. Do you see the part that Mr. Francisco has highlighted 15 about him not fully meeting expectations and not having 16 sustained operations? 17 A. Yes. 18 Q. Okay. 19 were part of -- what's set forth here ended up being part of 20 Mr. Sterling's discrimination case against the CIA? 21 A. No, I did not know that. 22 Q. And that's the same article -- the same discrimination 23 case that's discussed in Government Exhibit 83, which you've 24 already seen, which is the article by Mr. Risen, correct? 25 A. Do you read that? And do you know that these, that these complaints No, I don't know what you're referring to. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 224 of 232 PageID# 5476 Mark L. - Cross 1 Q. Okay. 2 759 Could we put up Exhibit 83 again, please? Have you ever seen this document before? 3 A. I don't recall seeing it before. 4 Q. Okay. 5 New York Times article about Mr. Sterling's discrimination 6 case? 7 A. I don't recall. 8 Q. Okay. 9 before, and the exhibit we have here is cut out, but can you 10 You identified Mr. Sterling If we go to the next page, I think it will be clearer. 13 14 And who's the picture? identify just partially who the person is? 11 12 And when was the first time you saw any copy of The MR. TRUMP: I think we can all agree that it's Mr. Sterling. 15 THE COURT: Yeah, that's not in dispute. 16 BY MR. MAC MAHON: 17 Q. Mr. Sterling, correct? 18 A. It appears to be. 19 Q. And that was published in the newspaper in The New York 20 Times, correct? 21 A. 22 23 According to what's on the screen here, yes. MR. MAC MAHON: That's all I have, Your Honor. Thank you. 24 THE COURT: Is there any redirect? 25 MR. TRUMP: Just very briefly. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 225 of 232 PageID# 5477 Mark L. - Redirect/Recross 1 760 REDIRECT EXAMINATION 2 BY MR. TRUMP: 3 Q. There was security in the building, correct? 4 A. Yes. 5 Q. Only CIA employees with badges and access cards and things 6 like that could get in and out, correct? 7 A. That's correct. 8 Q. But if you had a briefcase or a satchel or even a folder, 9 whatever, that was not searched, correct? 10 A. That's correct. 11 Q. So if you or Mr. Sterling or anybody wanted to leave the 12 building with classified documents, you could? 13 A. That's correct. 14 Q. It was an honor system, right? 15 A. Yes. 16 MR. TRUMP: That's all I have, Your Honor. 17 THE COURT: Any recross? 18 RECROSS EXAMINATION 19 BY MR. MAC MAHON: 20 Q. 21 Ames? 22 A. 23 24 25 Is this even after the CIA was infiltrated by Aldrich Do you know when that happened? When it happened? MR. TRUMP: Yes. I'm sorry, Your Honor, I was talking. I object to the question. THE COURT: You missed the Aldrich Ames question. I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 226 of 232 PageID# 5478 Mark L. - Recross 761 1 think that's far afield. 2 MR. MAC MAHON: I'll withdraw the question, Your 3 Honor. 4 Q. 5 the building, was it? 6 A. Our office was CIA security. 7 Q. But in the building itself, it was just regular commercial 8 security? 9 A. 10 When you came in off the street, there was a mezzanine MR. MAC MAHON: That's all I have, Your Honor. Thank you. 13 14 The security was not CIA security in level with commercial security. 11 12 Let me ask you this: THE COURT: to go as a witness. 15 All right, thank you, sir. You're free Thank you. (Witness excused.) 16 THE COURT: And, ladies and gentlemen, your reward 17 for having been such an attentive and timely jury is I'm going 18 to actually let you get out even earlier tonight. 19 told by counsel we are actually ahead of schedule, which is 20 good. 21 I've been I do want to start tomorrow morning at 10:00, not 22 9:30, and you really do need to get some coffee before you come 23 to court tomorrow morning because the first witness you're 24 going to hear from was done by deposition, and that means 25 you're going to be watching that testimony on the screen, and Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 227 of 232 PageID# 5479 762 1 so I want to make sure that you're able to stay nice and alert 2 and focused. 3 Please remember to follow my instructions about 4 avoiding any exposure to any media coverage of any kind about 5 this case. 6 today. I know Dr. Rice is somebody who you might want to talk 7 about. You can't do it while this case is in progress, all 8 right? Because I don't want you thinking about the case. 9 know, I warned you about that before. 10 Do not discuss what you've seen or heard in court You So your best job to get ready for tomorrow is a good 11 night's sleep and then come in fresh and ready. 12 tomorrow morning, and I will have you out by five, no later 13 than five tomorrow. 14 at this point. 15 16 Leave your stuff here. So 10:00 You know the drill We'll see you tomorrow. I'm going to stay in session for just a second with counsel. 17 (Jury out.) 18 THE COURT: All right, now, what we're going to do 19 tomorrow morning is I have my regular docket at 9:00, so I have 20 two civil matters. 21 courtroom. 22 this is in part for our deputy. 23 section of the courtroom that will not be available to people 24 who don't have clearances, so that the screen is not available. 25 After that, we are going to reset the The screen is going to shift to the other side, so The far, my far right is the I think we're going to have to turn down your, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 228 of 232 PageID# 5480 763 1 defense counsel's machine and the witness box. 2 we can't have any TV screens showing in a non-protected 3 context, all right? 4 In other words, My recollection is that the deposition is going to 5 run close to three hours. Now, we can certainly cut -- we had 6 a 15- or 20-minute break. We can cut that time, but it's going 7 to be a little bit dry at the end of it, especially because of 8 the accent. 9 I hope that the technology is in good shape. I 10 assume the government has done a dry run of the tape to make 11 sure it's playing well. 12 13 MR. FRANCISCO: Judge, we tested it during the break earlier, and sound came out. 14 THE COURT: All right, fine. 15 MR. FRANCISCO: There's a portion at the beginning of 16 the video where the audio drops in and out for, like, the first 17 19 lines of the transcript, but after that, everything is fine. 18 THE COURT: All right, that's fine. And then my 19 understanding is what we agreed to was that there are 20 transcripts of the deposition, so the jurors are going to have 21 a physical transcript, correct? Plus, they'll have the ability 22 to listen and watch the screen. That's what we've told them to 23 do; is that right? 24 25 And everybody is comfortable with the transcript? There are no issues with the transcript. I think that is Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 229 of 232 PageID# 5481 764 1 correct as well. 2 MR. MAC MAHON: Judge, so far as I understand, the 3 transcript's not going into evidence, though. 4 to be an aid, correct? 5 6 THE COURT: who testifies. Correct. MR. MAC MAHON: 8 THE COURT: 9 MR. MAC MAHON: I remember. Yeah. THE COURT: No, that's -- I'm sorry. All right. start at ten. 15 likely. 16 approximately coming in tomorrow? That will take us to the lunch break most And then the government will have how many witnesses 17 MR. OLSHAN: 18 THE COURT: 19 MR. OLSHAN: 22 So do we anticipate any other And that will take care of tomorrow morning, and we 14 21 That's fine with the issues? 13 20 I just was -- defendant. 11 12 This is like any other witness We don't send witness testimony in to the jury. 7 10 It's just going Probably five to seven, Your Honor. All right. They're going to start going a little bit quicker, so -THE COURT: Good. And we don't need the screen -- will we need the screen any further for the government's case? 23 MR. OLSHAN: I think that's it. 24 THE COURT: All right. 25 MR. TRUMP: The only possibility would be rebuttal. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 230 of 232 PageID# 5482 765 1 2 THE COURT: All right. need the screen for any of your witnesses? 3 MR. MAC MAHON: 4 THE COURT: Not that I can think of, Your Honor. All right. 5 to keep it up here or not. 6 caution, we'll keep it up here. 7 8 9 Does the defense think we may I'll see whether we're going I think out of an abundance of All right, is there anything else we need to address before tomorrow? No? MR. MAC MAHON: Not for the defense. 10 THE COURT: All right. Then, Mr. Trump? 11 MR. TRUMP: Unless there's an objection, we would 12 move in the deposition as an official exhibit as part of the 13 trial record. 14 15 16 THE COURT: It's part of the trial record, but it's not going in as an exhibit to the jury. MR. TRUMP: It can't. It has to be marked in some way, so we 17 were just going to mark it as an exhibit for purposes of 18 maintaining a number for the record. 19 THE COURT: That's fine. You check that out with 20 Ms. Guyton. 21 document, that transcript will not be going to the jury. 22 So just give it a number, but the point is that MR. TRUMP: No. The actual tape would be the, the 23 disc or however it is -- it would be a disc, and that will be 24 marked as an exhibit. 25 MR. MAC MAHON: If I understand, Your Honor, we Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 231 of 232 PageID# 5483 766 1 haven't had a chance to argue this, I know that the disc itself 2 needs to be marked as part of the record -- 3 THE COURT: 4 MR. MAC MAHON: 5 that goes back into the jury room. 6 Correct. -- but it wouldn't be put in the cart THE COURT: Correct. 8 MR. TRUMP: Correct. 9 THE COURT: -- for its consideration. 10 MR. TRUMP: It just needs to be marked for purposes 7 11 12 13 It is not going to go to the jury -- of the record. THE COURT: And the transcript is going to also be similarly marked. 14 MR. TRUMP: Correct. 15 THE COURT: So if the exhibit is 120, the transcript 16 is going to be 120A, so they're together. 17 MR. TRUMP: It's actually 171 and 172. 18 THE COURT: All right, 171 and 172. 172 is the 19 transcript; 171 is the disc; and that's for down the road if 20 there is an appeal, then the Court of Appeals has it. 21 22 23 (Government's Exhibit Nos. 171 and 172 were received in evidence.) Now, Ms. Thomson is not going to be taking anything 24 down while the deposition is being played. I mean, she's going 25 to be here in court in case one of you says something, but, I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 489 Filed 08/17/15 Page 232 of 232 PageID# 5484 767 1 mean, that is the testimony. 2 It's whatever you-all said during the deposition, all right? 3 So she's not going to do anything. 4 It's my ruling on objections. And as I said, if you want to have just one member of 5 each trial team here, and quite frankly, even if Mr. Sterling 6 wanted to sleep in in the morning, that's fine. 7 present at the deposition. 8 that, and I'll certainly explain to the jury why we're doing it 9 that way, because we were all together for that deposition. I mean, he was You-all decide how you want to do 10 All right, anything further before we recess? 11 (No response.) 12 13 14 THE COURT: 10:00. No? Then I'll see you-all back here at We start court at nine for the other cases. (Recess from 4:48 p.m., until 10:00 a.m., January 16, 2015.) 15 16 17 18 CERTIFICATE OF THE REPORTER I certify that the foregoing is a correct transcript of the record of proceedings in the above-entitled matter. 19 20 21 /s/ Anneliese J. Thomson 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595