4.Stephen Herbits — Direct/Cross/Redirect/Recross
671 linesMS. PENZA: The Government calls Stephen Herbits to the stand.
(Witness takes the witness stand.)
STEPHEN HERBITS, called as a witness, having been first duly sworn/affirmed, was examined and testified as follows:
COURT CLERK: Please have a seat.
STEPHEN HERBITS: All right.
COURT CLERK: Please state and spell your full name for the record.
STEPHEN HERBITS: Stephen Herbits, S-T-E-P-H-E-N; Herbits, H-E-R-B-I-T-S.
THE COURT: All right. You may inquire.
MR. LESKO: Thank you, Your Honor.
DIRECT EXAMINATION BY MR. LESKO:
MR. LESKO: Good afternoon, Mr. Herbits.
STEPHEN HERBITS: Good afternoon.
MR. LESKO: Can you see me?
STEPHEN HERBITS: Yes.
MR. LESKO: Okay. Good afternoon.
How old are you, Mr. Herbits?
STEPHEN HERBITS: Seventy-seven.
MR. LESKO: Mr. Herbits, could you briefly describe your career up until April 1977?
STEPHEN HERBITS: After college -- graduated in '64. I did some graduate work and studied some graduate work in insurance, that was my father's business. I anticipated going back to work with him, but I got a little bit sidetracked and into politics and policy and I ended up in Washington for 11 years from '67 to '77.
During that period I had a number of different jobs. I worked for the staff for House of Representatives, United States Senate, the Pentagon on multiple occasions, and a special trade representative because during the period of time, I also had a law degree and I wanted to learn something about law that I could make some money from. And a short stint in the White House after Nixon resigned and Ford became president to help them with the transaction to a new presidency. And then I left to go for trade law.
MR. LESKO: Did you have a role in the old volunteer Army?
STEPHEN HERBITS: I did. One of my first assignments in the House of Representatives in January of '67 was to look at the draft problem. I researched that, spent a lot of time in the Pentagon and wrote a paper for the members of Congress that I was working for as a group that I didn't think the draft was necessary. And there were real problems with the draft because it was getting very selective and they were very unbalanced and there's lot of questionable behavior by draft boards of.
So the paper, I was sent back to do more research which I came back, the document was translated into a paperback book which five members of Congress signed which said how to end the draft.
The case was volunteer force, Nixon endorsed it, got elected, created a commission on the -- to study it, I was put on the commission as the youngest member of the commission. The commission reported back to the President that it was something he should proceed to do. It was then assigned to the Pentagon to draft a detail plan. That took a year and ultimately the draft, just the calls were down to 0 by December 1972.
MR. LESKO: And the end of your tenure, initial tenure at the Pentagon, what was your role at the Pentagon at end of that initial tenure?
STEPHEN HERBITS: At the end of that I'd been in the Pentagon, the volunteer force was an issue because there was a problem they brought me back to fix it, the way it was being implemented, and then I left again and then I came back when Secretary Rumsfeld became secretary a little bit afterwards he had been the chief of the staff at the White House, he had Secretary of Defense. And he asked me to come work for him, which I did, and I was his last, what's called in Pentagon the -- a special assistant to the secretary in other departments it's call the chief of staff of the department, but because senior military are chiefs of staff, then the Pentagon doesn't use that for a civilian, so I was his -- essentially his chief of staff for the last year or so of the Ford administration.
MR. LESKO: And this was in the 1970s?
STEPHEN HERBITS: That was 1970, the beginning of '76 through the election of January of '77.
MR. LESKO: In April 1977 were you interviewed by someone for a job?
STEPHEN HERBITS: In April of 1970 -- yes, I was interviewed by actually several corporations, but the primary one was Edgar Bronfman of Seagram's.
MR. LESKO: And who was Edgar Bronfman?
STEPHEN HERBITS: Edgar Bronfman was the chairman and CEO of the Seagram's Corporation and his father had founded the company who had died in 1971, Edgar in '77 was running the company. And his family were the controlling shareholders of a public company. They had control over it by the amount of shares they had.
MR. LESKO: And what sort of business was Seagram's in?
STEPHEN HERBITS: At that time it was the largest spirits and wine company in the world. It also had an investment in a small company called Texas Pacific Oil and Gas which was a company that searched for oil and gas. And it -- which was sold to Sunoco in -- in the year 1980.
MR. LESKO: Did Seagram's own other companies?
STEPHEN HERBITS: They had a lot of subsidiaries around the world. But the money that was earned from the sale was invested ultimately in DuPont and they owned 25 percent of DuPont for their duration. That was a self-imposed limit by Edgar, so the company would still be independent. But they would have some input.
MR. LESKO: Did Seagram's own Universal Studios?
STEPHEN HERBITS: They bought Universal in the early '90s and it also brought Tropicana at one point at the end of the '80s and at some point, yes, they owned those companies but they came and went.
They bought Universal after selling their shares of DuPont.
MR. LESKO: Was Edgar Bronfman a wealthy man?
STEPHEN HERBITS: Billionaire, multiple billionaire.
MR. LESKO: What was the job that Mr. Bronfman was interviewing you for?
STEPHEN HERBITS: I approached him and asked him if I can be his assistant having just been assistant to the Secretary of Defense, I was trying to go laterally because I don't want go down and start at the bottom of some department and crawl up very slowly. And the offer I made to him was he wasn't going to take a risk with me, I'll not sign a contract, if it doesn't work out, I'll leave quietly.
MR. LESKO: Did you get hired?
STEPHEN HERBITS: I did get hired.
MR. LESKO: And how long did you remain employed by Seagram's?
STEPHEN HERBITS: Until June of 1997.
MR. LESKO: Could you briefly describe the positions you held during the time that you worked at Seagram's?
STEPHEN HERBITS: I started off as the assistant but they realized that I should be doing something more important. They sent me to Japan where we had a company that was five years old and was in trouble. And I was the only Westerner there. We had a Japanese who represented the company there and I spent 20 months and a week very precisely in Japan, tough assignment, but was able the save the company and then they sent me to Europe to do some planning for a new division and then they brought my back to run a wine company in the United States to fix that company and then I went back to Asia to fix another company that was out there and when I came back basically six years later, I was given corporate positions first as a vice president and then ultimately executive vice president with multiple portfolios and I stayed in New York for the duration.
THE COURT: When did you start?
I'm sorry as assistant to Mr. Bronfman.
STEPHEN HERBITS: In June of '77 and so I left when I got my 20th anniversary.
THE COURT: That's it. Okay.
All right. Go ahead.
MR. LESKO: So Did you directly report to Edgar Bronfman?
STEPHEN HERBITS: Off and on. In the first six years I was plight enough though Edgar hired me, gave me my assignments, to report to the executive that in between the companies I was fixing and the chairman.
MR. LESKO: Did you travel with Edgar Bronfman?
STEPHEN HERBITS: Starting in the mid-'80 when I was back doing my corporate positions he had become very, very -- he did business travel but he also became very active as president of the World Jewish Congress. Because of my national security background, and for another reason, he took my on almost every trip he went abroad. When he was asked by foreign ministers or asked by heads of state or government in a meeting in which he was discusses World Jewish Congress business he would say, I do not mix my business -- personal business with my Jewish Congress business, but my associate here who is the vice president of the company will be happy to talk to your people about it and then we can confirm when we get back to New York, so I was always with him. Sometimes it was reverse, sometimes he was there on company business and they would want to raise Jewish Congress business and he would say, you need to talk to my associate because I don't mix my business.
MR. LESKO: What was World Jewish Congress?
STEPHEN HERBITS: World Jewish Congress was created in 1930s out of Europe because of the beginnings of the holocaust and it was to inform the world of what was going on and to try to save the Jews. It consisted -- it grew into an organization where each country has a group that relates to the Jewish people -- to the organizations within that country. America, for instance, has roughly 32 groups and some countries just one group and some countries supervise others.
Those people become regional group and the regions elect the president.
MR. LESKO: So it is an international organization?
STEPHEN HERBITS: International organization. Most of the work is done internationally. Because there were so many Jewish organizations in the States he didn't have to spend a lot of time, although he did see Presidents from time to time on what he was doing abroad.
MR. LESKO: So where did you go to work after you retired from Seagram's?
STEPHEN HERBITS: I retired in part because I was tired and part because I worked very hard I said all right I'll work hard now and then I'll have the second half of my life more leisurely. That didn't turn out very successfully, but I did some consulting, various odds and ends. Edgar asked me to come back and work with him part time on -- he had been appointed by the President as the head of the U.S. Advisory -- Presidential Advisory Committee on Jewish assets in the United States. This was a period of time when the whole asset question banks had and that insurance companies had. People who were killed in the holocaust and banks didn't release the money because there was no birth certificate, things like that.
So he appointed one to see what assets were in the United States and I was a liaison between him because he was very busy and the commission staff, worked with them very closely to get through that year, year and a half assignment.
MR. LESKO: Did you also go back to the Pentagon?
STEPHEN HERBITS: I went back to the Pentagon in -- I'd been in the Pentagon a couple of times with Seagram's on very short assignments on a very specific thing that was needed sometimes for four or six weeks with I did it a as dollar a year man because Edgar kept me on the payroll, it's just easier. And in 2001 I went back to do Rumsfeld's transition as Secretary of Defense for the second time. And he asked me to stay in the same job I had for him in the '70s to which I said I couldn't and he said why? I said I'm too old and he said I'm ten years older than you and I said, I -- you need somebody younger. I can't work for you with the strength that you need because he was a very, very, very, very tough hardworking boss.
So I did the transition for him, I left in May and I got a call the day after 911 and he said I want you back here and I said when? At first he began by saying we're at war, I said I know this. And he said I want you back here and I said when. He said how about tomorrow. I said how about Monday, so I can shutdown my life and I went back to Washington. I stayed there full time for five months and then came back for a project in the service for the next two year.
THE COURT: This was after the Pentagon?
STEPHEN HERBITS: The Pentagon. It was all under Rumsfeld.
BY MR. LESKO:
MR. LESKO: So at some point, did Edgar Bronfman ask you to work for him again?
STEPHEN HERBITS: Yes. We stayed very friendly all during that period. So after 2004 when I left in the spring, I got a call in the fall because there had been public accusations, allegations that his what was then called secretary general, that's just a structural question, the --
THE COURT: Go a little slower. You know, you have to go a little slower with those of us who are in our seventies. We would appreciate it.
STEPHEN HERBITS: Got it.
STEPHEN HERBITS: How far back should I go?
BY MR. LESKO:
MR. LESKO: Well, let me just orient you.
STEPHEN HERBITS: Sure.
MR. LESKO: Did you go back to work for Edgar this time after World Jewish Congress?
STEPHEN HERBITS: I went back to Edgar before the World Jewish Congress in the fall of 2004 because of accusations that were made by the executive director of stealing money from a nonprofit.
MR. LESKO: And initially were you retained as a consultant?
STEPHEN HERBITS: I went as a consultant and I spend four months solving the problems. I rewrote all of the governance organizations, the checks and balances, doing the finance activities, doing all the things to protect the organization. I thought it was done. The Attorney General of the State of New York, Spitzer at that time, assigned his -- his head of charity bureau to take a closer look. She took a closer look and we then entered a negotiation for a year because the books showed he was stealing. And we -- after a year we agreed on a -- I forgot what it's called, but it assures the discontinuance to maintain structures I had put in and she made me promise before she signed this that I stayed another year to implement it, so I stayed until now 2007.
So Edgar --
MR. LESKO: Let me stop you there. During this time period after the initial four months, did you assume any formal position at the World Jewish Congress?
STEPHEN HERBITS: I did. The first four months was consultant but because it was the secretary general who was the person -- this was all the allegations were for, his stealing, it made sense do we move him from any decision, give him an advisory role, no -- no financial responsibility. This was done in part with the agreement of the head of the charities bureau and the proper way to get the thing back on its feet was that the plenary session of the World Jewish Congress, 500 people around the world elected me as secretary general, which I then served in that job until the new president was elected.
MR. LESKO: So from approximately January of 2005 until the fall of 2007 you yourself were the secretary general of the World Jewish Congress?
STEPHEN HERBITS: Yes.
MR. LESKO: And what was Edgar's role?
STEPHEN HERBITS: He was the president up until June of '77 [sic] when he retired. I continued to do the job at the request of the new president to handle his transition for three months while he did what he wanted to do.
MR. LESKO: So Edgar Bronfman was the president of the World Jewish Congress in the June of 2007?
STEPHEN HERBITS: Yes, that's right. He had been president since '79 on a temporary basis because the previous president had just moved into Carter's Cabinet, and Edgar was then elected in his own right in '81.
MR. LESKO: And the person you replaced, was that person named Israel Singer?
STEPHEN HERBITS: Yes.
MR. LESKO: Did you report directly to Edgar Bronfman at the World Jewish Congress?
STEPHEN HERBITS: Yes.
MR. LESKO: And you mentioned that you left the World Jewish Congress a few months after Edgar Bronfman left in June of 2007?
STEPHEN HERBITS: He left in June, I left in September.
MR. LESKO: Could you explain -- you mentioned you traveled with Edgar Bronfman. Could you just describe some of your travel with Edgar Bronfman?
STEPHEN HERBITS: During his very active years he was seeing heads of state, heads of government, foreign ministers, went to Russia on multiple occasions, China on multiple occasions, the Europeans constantly, and basically in group meetings with World Jewish Congress around the world, sometimes with one-on-one meetings or one-on-one with staff on both sides.
MR. LESKO: And you accompanied him on these trips?
STEPHEN HERBITS: Virtually all of them when he left the country except if it was a vacation of his.
MR. LESKO: Is Edgar Bronfman deceased?
STEPHEN HERBITS: Yes.
MR. LESKO: When?
STEPHEN HERBITS: 2013.
MR. LESKO: And during the time period that you worked for and knew Edgar Bronfman, did you establish a relationship with him?
STEPHEN HERBITS: Yes, very close relationship. It -- my hours I probably spent more time with him than anyone but his wife.
MR. LESKO: How would you characterize that relationship?
STEPHEN HERBITS: I tried the maintain a professional relationship with him. I did not do social things, purely social. I did social things with his functions as a diplomat and as a businessman, but I did not -- I tried to not to get involved in family issues.
MR. LESKO: Did you and Edgar Bronfman trust each other?
STEPHEN HERBITS: I think more than anybody that I've ever trusted and I think that may have been the way he felt, too, but I -- I only because the feeling I got from him. That's my judgment.
MR. LESKO: Your Honor, I'm about the move to another topic.
THE COURT: All right. We should take or lunch break at this time.
All rise for the jury.
(Jury exits the courtroom.)
(The following matters occurred outside the presence of the jury.)
THE COURT: All right. The witness may stand down. Please do not discuss your testimony with anyone during the lunch break. We take one hour for lunch.
STEPHEN HERBITS: Thank you very much.
THE COURT: You're very welcome.
All right. We will take an hour for lunch. I have several status conferences now, so if you have conversations, just take them into the hallway. Thank you very much.
MS. PENZA: Thank you.
MR. AGNIFILO: Thank you, Your Honor.
(Lunch recess taken.)
(Continued on the next page.)
A F T E R N O O N S E S S I O N
(Time noted: 2:00 p.m.)
(In open court; Jury not present.)
COURT CLERK: All Rise.
THE COURT: Let's bring in the witness, please.
(Whereupon, the witness resumes the stand.)
THE COURT: How much more for this witness?
MR. LESKO: Half hour or so.
THE COURT: And cross?
MR. AGNIFILO: I don't see a long cross at all.
THE COURT: And we're ready for the next witness after that?
MS. PENZA: We are, your Honor.
THE COURT: Let's bring in the jury.
(Jury enters the courtroom.)
THE COURT: Please be seated.
Mr. Lesko, you may continue your examination of the witness.
I remind the witness he's still under oath.
STEPHEN HERBITS: Okay.
DIRECT EXAMINATION (Continued) BY MR. LESKO:
MR. LESKO: Good afternoon. Let's spend a few moments to talk about Edgar Bronfman's family, okay? How many wives did Mr. Bronfman have?
STEPHEN HERBITS: He was married five times. The second marriage was annulled. His third marriage and the fourth marriage was the same person as the third marriage. And his wife when he died is five.
MR. LESKO: Five times, four wives basically?
STEPHEN HERBITS: Yes.
MR. LESKO: How many children did Mr. Bronfman have?
STEPHEN HERBITS: From the first wife he had five, four boys and a girl. From the third and fourth wife he had two daughters.
MR. LESKO: What were his two youngest daughter's named?
STEPHEN HERBITS: Sarah and Clare.
MR. LESKO: Who was their mother?
STEPHEN HERBITS: Well, the name I knew her as was Georgiana, but I think her real name was Rita. I'm blanking on her last name.
MR. LESKO: Was it Webb?
STEPHEN HERBITS: Webb.
MR. LESKO: When was the first time you met Sarah and Clare Bronfman?
STEPHEN HERBITS: Other than when they were very little children perhapses in the office, it was a meeting in 2005. Edgar asked me to come to lunch at his apartment. When I got there, Sarah and Clare and Nancy Salzman were present. And we had lunch.
MR. LESKO: Was this in New York?
STEPHEN HERBITS: It was in New York at Edgar's apartment.
MR. LESKO: And what was discussed at this meeting with Edgar Bronfman, Clare Bronfman, Sarah and Nancy Salzman.
STEPHEN HERBITS: The purpose of the meeting was whether or not I could help them with their public relations. They were concerned about their public relations, or else they wouldn't be coming to me. I took away from the meeting that I thought they thought I was more important than I was; nevertheless, Edgar suggested I listen to them talk about it.
I asked a former employer of mine who had opened his own PR firm, to meet with them and discuss what he could do for them. I'm not a public relations expert; in fact, I use him a lot to advise me in the corporation. And that's what the purpose was.
MR. LESKO: Were you asked to help them?
STEPHEN HERBITS: I was asked to help them.
MR. LESKO: By who?
STEPHEN HERBITS: By Edgar.
MR. LESKO: And Sarah and Clare Bronfman, was there a term used in the family to refer to them?
STEPHEN HERBITS: They were referred to as the girls, which is not different from the first four sons, that were referred to as the boys. But that was just the way when one was talking about them by generation without a specific name, it was the constant way it was phrased.
MR. LESKO: So did you in fact introduce them to your public relations colleague?
STEPHEN HERBITS: I did.
I don't remember if I introduced them personally, but I did make arrangements for them to meet. They did meet. And it did not continue.
MR. LESKO: Why not, if you know?
STEPHEN HERBITS: There are two versions of it. He contends that he quit because they wouldn't give him any information for him to help them. And I believe I've been told that some people think that they fired him. But I have no idea. It ended.
MR. LESKO: A part from introducing Sarah and Clare Bronfman to the public relations colleague, did you assist them in any other way?
STEPHEN HERBITS: Multiple times I was asked to. In 2008 I believe there was some correspondence between me and Edgar, and Edgar and Clare and Sarah and asked me to help them. They were -- and then -- so I agreed to try to try to help.
They asked me to help them with a case involving Rick Ross, who I had not met or had ever spoken to. And who, because they were concerned that they wanted to tie up difficulties they had with him before the possibility that the Dalai Llama, his Holiness, would come to appear, they didn't want any disagreements going on.
THE COURT: Before you go to that.
Were they consulting with you in your capacity as an attorney or in some other capacity?
STEPHEN HERBITS: Capacity as looking for Edgar and Edgar wanted me to help them. I didn't do family stuff. I worked strictly with Edgar in the corporation, but Edgar made an exception and asked me to help them because he was still interested at that point in helping them achieve their goals.
THE COURT: All right, thank you.
Go ahead.
BY MR. LESKO:
MR. LESKO: I'll follow up on that, though.
Did you formalize a relationship with an attorney that was involved?
STEPHEN HERBITS: The difficulty was I kept asking them to tell me what the problem was. They kept saying it was secret, they couldn't tell me. I said I can't help you if I don't know what I'm doing. I can't help you. So I suggested to them, to be helpful, they ask their attorneys to retain me on an attorney-client privilege for a dollar, and to send me the documents. I would read them and write the attorney back my view and my ideas about what could be done.
MR. LESKO: Was that what happened?
STEPHEN HERBITS: That is exactly what happened, except they never paid the dollar. But the fact is that I read a very substantial body of documents and I wrote them a seven-page memo saying that everything you suggest here is wrong.
MR. LESKO: And if you could just briefly summarize the advise that you gave them in this memo?
MR. AGNIFILO: I apologize, could we have a brief sidebar?
THE COURT: Sure.
(Continued on the next page.)
(Sidebar conference.)
MR. AGNIFILO: I didn't mean to interrupt Mr. Lesko's presentation. I would imagine, though, if he's acting in a Covell capacity as an adviser through an attorney, he just said that was an attorney-client privilege, is there a collective view, I don't know what it would be, as to whether this is or is not privileged?
MR. LESKO: I believe, we have not been notified that Clare Bronfman is asserting any privilege relating to this communication. But out an abundance of caution, I can move on. I don't have to get into the substance.
THE COURT: Why don't we do that.
MR. LESKO: The only caveat is, the impeachment materials we received from Mr. Agnifilio, I believe it was either this morning or last night, include the memo that Mr. Herbits is discussing and one of the items he relied upon in drafting this memo. I'm not going to go there --
THE COURT: If counsel has the memo, then the privilege has been broken. Yes?
MR. AGNIFILO: Well, but I don't know it's been broken by the client. I think there is a subpoena. My understanding is -- I'm putting this together we just got all this stuff last week -- there was a subpoena to Mr. Herbits and he complied with the subpoena. I have no idea, because it's not my privilege so it's not my client.
MR. LESKO: Your Honor --
MR. AGNIFILO: We got it from the Government.
MR. LESKO: These materials have been produced to the defense; they were produced a while ago. Ms. Bronfman has been very aggressive in asserting various privileges, that your Honor is aware of this, there has been extensive litigation. She's not asserted privilege with respect to these documents. These documents have been distributed to multiple third-parties. Again, I don't have to go into this, but the only reason I'm bringing this up is I don't think it then would be an area of cross-examination.
MR. AGNIFILO: I wouldn't do that. If you're not going to get into it, I'm not going to get into it.
I'm wondering, as a signal, is there a way of you doing what you need to do if there is in fact a privilege in place? I don't know what you're going to ask. I'm trying to raise an issue before it's a problem.
MR. LESKO: I don't think there is a privilege.
THE COURT: If it's presented that this document has been widely distributed, certainly because of that and no privilege has been asserted by Ms. Bronfman in connection with this document, then there is no privilege at this point. So you can do what you want. Up to you. I'm not going to worry about it. She's got many lawyers; she can assert her rights.
(End of sidebar conference.)
(In open court.)
BY MR. LESKO::
MR. LESKO: If you could briefly tell us in a summary fashion the advise that you gave?
STEPHEN HERBITS: I suggested that the idea of suing him civilly would way extend way beyond the period in which they were trying to achieve their goal, because of the planned visit of the Dalai Llama. I also suggested that suing him criminally, would create a problem that they didn't want, especially if they are making assertions about some of the things they suggested about lawyers saying things, which they contended weren't true. And I raised the issue of the need to be careful about that language because of the possibility of slandering lawyers.
MR. LESKO: Did you mention another avenue or approach?
STEPHEN HERBITS: I suggest that they go back to what we talked about three year earlier, about an aggressive public relations program to show the merits of the organization and establish its credibility, if they wanted to pave the ground for the visit.
THE COURT: We're talking now about what organization?
STEPHEN HERBITS: The request I got were from Clare and Sarah, but clearly it wasn't their personal interest they were talking about. It was primarily, specifically, about the interest of the Dalai Llama visiting the organization.
THE COURT: Which organization?
STEPHEN HERBITS: NXIVM.
THE COURT: NXIVM, okay. Thank you.
BY MR. LESKO::
MR. LESKO: Was it your impression that Clare Bronfman and Sarah Bronfman believed you had political connections?
STEPHEN HERBITS: Explicitly. They believed my positions in Washington gave me some authority, which was completely imaginary. And they believed that I was a lawyer, which was true. And they believed that I was very, very close to Edgar and had influence over him, which was not precisely true, but they thought in any of those ways I could be helpful.
MR. LESKO: Between 2005 and 2007, did Sarah and Clare Bronfman ask you to contact any Government officials on behalf of NXIVM?
STEPHEN HERBITS: During that period roughly, my mind isn't so clear on the months, in one instance they asked me to contact the Governor of New York and the Governor of New Jersey to ask them to intervene. I don't remember the specifics. I denied that.
MR. LESKO: Did they ask you to contact any Attorney Generals?
STEPHEN HERBITS: I meant Attorney Generals. No, just the Governors or Attorney Generals. I'm confused. I believe it was the Attorney Generals, not the Governors, that was purely political. They somehow thought that I had something to say to an Attorney General that I never met.
THE COURT: Who were the governors at the time, if you know?
STEPHEN HERBITS: 2007, my memory is not as good as it used to be, I don't know who they were by name. I do remember their titles.
THE COURT: Did they believe you knew the Governors?
STEPHEN HERBITS: I don't believe they knew I knew them. They believed because I had some mystical authority over Washington, that I could call an Attorney General or Governor. And I believe part of it was that it was suggested that I was calling Edgar Bronfman, whom they did know. So it was partly in the theory that I would be representing him.
BY THE COURT::
MR. LESKO: Let's talk about the Attorney Generals, what did they want you to ask of the Attorney Generals?
STEPHEN HERBITS: I believe they were encouraging me to ask them to do the prosecution of --
MR. LESKO: Of who?
STEPHEN HERBITS: Of Ross. And I don't believe it stop there, but I don't have documents to remind me of that.
MR. LESKO: These were the Attorney Generals from New York and New Jersey?
STEPHEN HERBITS: New York and New Jersey.
MR. LESKO: Did you actually contact the attorney generals for New York and New Jersey?
MR. LESKO: Why not?
STEPHEN HERBITS: Because I felt the request was inappropriate and frankly preposterous.
MR. LESKO: Did Sarah and Clare Bronfman ask you to contact any other prosecutors?
STEPHEN HERBITS: Two prosecutors in the larger Albany area, we had a long conversation about that. It was on the phone. Because they were upset that the prosecutors would not prosecute the people who they were targeting. It made no difference to me who they were targeting.
They insisted, for instance, the Constitution of the United States required them to prosecute. I explained, from my law degree, that prosecutors have discretion as to which cases they want to prosecute. I explained why I thought that worked, how that was done, and I refused call them.
MR. LESKO: Did Sarah and Clare Bronfman ask you to intervene with any press organizations like newspapers?
STEPHEN HERBITS: They asked me to call specifically the publisher of the Albany Times Union. Because they had begun, the reports had began an investigation of what was going on there. They wanted me to stop the stories, also in the context of the pre-Dalai Llama visit.
MR. LESKO: Did you do that?
MR. LESKO: When you say "their" you're referring to NXIVM?
STEPHEN HERBITS: NXIVM. Nothing that they asked me to do was personal to them. They didn't say, I'm in trouble can you help me. It's that we have a problem. And it wasn't the girls who had the problem, because they were representing an organization. They weren't acting on their only personal behavior.
One of them, for instance, had a hospital bill, called and said can you help me with the hospital bill. That's something I might try to do. But it was on behalf of an institution and what they were asking me to do, I thought, was inappropriate.
MR. LESKO: Could you describe your relationship with Sarah and Clare Bronfman?
STEPHEN HERBITS: It was never close. It began with my trying to help them because Edgar asked me to do it; but each time they asked me it got further and further from what was logical or right. It became strained until I think I qualified to get on the enemy list.
MR. AGNIFILO: Your Honor, can we have another sidebar?
THE COURT: Yes.
(Continued on the next page.)
[REDACTED]
(In open court.)
BY MR. LESKO:
MR. LESKO: How would you characterize Sarah and Clare Bronfman's relationship with their father?
STEPHEN HERBITS: It was an evolving relationship. Officially when they joined the ESP program, Edgar in fact took the course. He was eager to be supportive. I was not near him a lot during that period, and he subsequently made a comment to the press which indicated his nervousness about the situation.
MR. LESKO: What was the comment?
STEPHEN HERBITS: That he thought that they were joining a cult.
MR. LESKO: What publication was that in?
STEPHEN HERBITS: Forbes, I believe. That would be before, I wasn't with him every day during that period, that was a quieter time.
Also at that time I believe he sought the advice of Rick Ross to try to help and protect his daughters. They went from there to requests a few years later, beginning in the 2005 period when I met with them, and they asked me to do the public relations help, which turned out not to happen. And then it moved to specific requests, like the issue of the Attorneys General and with the District Attorneys. And where I was beginning to say, I'm not doing those things.
But I did not report a lot to Edgar, for a lot of reasons. It was bothering him and there was some distress, I didn't need to add any. I just minded my own business.
MR. LESKO: During that time period would you say that it was up and down in terms of the relationship or it was uneven?
STEPHEN HERBITS: Between Edgar and them?
MR. LESKO: Yes.
STEPHEN HERBITS: I didn't experience Edgar and them personally. I can't evaluate it. I know that Edgar was becoming more distressed because of conversations I had with him. I can't evaluate them in his presence.
MR. LESKO: Fair enough. Prior to 2011 did you become aware of a court proceeding in California about a property investment made by Clare Bronfman?
STEPHEN HERBITS: I was given a call by someone, I don't remember who, who said get the transcript. I purchased the transcript from the California case, $1400, I remember that, and I read it.
And I'm reading it and reading it, I knew nothing about any of this before. I read this, I didn't know if there was a case, I didn't know that there was real estate going on. In reading that case, my name appears, and it appears in violation of the oath of the people speaking.
MR. LESKO: How was your name mentioned?
STEPHEN HERBITS: It mentioned me as carrying messages from Edgar to Parlato, instructing him what to do about this project. I never heard the name Parlato before. I never heard anything from Edgar about this case before. And it was, from my law school degree, flat out perjury. But the case was over, so I decided to do nothing about it.
MR. LESKO: Did you learn how much was lost in this real estate investment?
STEPHEN HERBITS: I don't remember the specific source, but I believe it was a $28 million case. I believe they won the case for $10 million. And subsequently Edgar complained to me that they spent $11 million to win the $10 million, and that he was angry about that.
MR. LESKO: Was Edgar Bronfman aware that Clare and Sarah were involved in multiple lawsuits?
STEPHEN HERBITS: Yes.
MR. LESKO: What types?
STEPHEN HERBITS: There were a number of different types, because some were suing people who had left the group, left NXIVM, and suing them at a cost to the people who left that basically drove them to bankruptcy. There were cases suing, I subsequently learned, Parlato, for his role in originally helping them with the Los Angeles case, but for some reason they were dissatisfied with him. And there were some other types of cases. But the last list that I saw was 14 or 15 cases.
MR. LESKO: Was Edgar Bronfman concerned about this?
MR. AGNIFILO: Object to the form of the question.
THE COURT: Sustained.
MR. LESKO: Did you -- I'll move on.
To the best of your knowledge, was Edgar Bronfman aware of the lawsuits?
STEPHEN HERBITS: He was aware of them at the point that I reviewed them with him in July 2011. I sat down with him for an hour and I went through all of the things that I had learned, both directly in relationship to the girls and indirectly from people who were calling. The reason they were calling me is Edgar stopped taking calls or meetings with people who were worried about the NXIVM issue, and assigned that responsibility to me, so I took the calls.
My answer was the same for all these years that he and I agreed with, "I loved my daughters as my daughters. I have nothing to do with their affairs." But that's it. I listened. I made notes. And at some point it got to the point where I felt an obligation to him to brief him on everything I knew.
MR. LESKO: In addition to the real estate lawsuit, did you become aware of other monies that Clare and Sarah Bronfman lost as part of their own involvement in NXIVM?
STEPHEN HERBITS: Yes, but not directly. I heard --
MR. AGNIFILO: Objection.
THE COURT: Sustained.
MR. LESKO: In approximately 2009, did Edgar Bronfman ask you to do something for his family?
STEPHEN HERBITS: Again?
MR. LESKO: In the 2009 time frame did he ask to do something with the trust?
STEPHEN HERBITS: In 2009 Edgar and his sons asked me to come back to work for them because there was a lot of money and there was not a lot of cash, not unusual for billionaires during the initial part of that crash. They wanted to -- it was told to me by them, they I was the one person they all trusted to be fair. I had been brought back into the trust, which I was not involved in before, and looked at the portfolio. I saw problems with it and I spent the next three years fixing those problems.
MR. LESKO: During this time period, did you get to know Edgar Bronfman's sons?
STEPHEN HERBITS: Yes, I knew some the sons, a couple work for the corporation. I knew the third one because he was in New York and he was beginning to do a great deal not-for-profit work. I was like an informal consultant and friend. At that period I got to know the fourth son for the first time really, because he was living in California most of the time. And he began assisting Edgar with his foundation and with other issues, and then sort of became the coordinator of the Trust. It was he and his father who called me initially who said will I help out. Then I worked with him very thoroughly over the next three years.
MR. LESKO: How would you characterize the relationship between Edgar Bronfman's sons and Sarah and Clare Bronfman?
STEPHEN HERBITS: Well, to the degree they mentioned it, it was, don't talk to me about it. They did not want to know. There was some resentment, but I don't know the basis of it. I do know that they weren't all one happy seven-member family.
MR. LESKO: Going back to the 2005 to 2010 time frame, during that time frame do you recall any negative press, other than the Forbes article you mention recalling NXIVM?
STEPHEN HERBITS: I remember being called by the press frequently. But I usually gave the same statement, and after a while they got bored and stopped calling.
The one person I had more conversations with than anyone with the man, I think his name was Rogato, who was working for the Albany Times Union, who was beginning to dig deeply into what was going on. My purpose in talking to him was to listen. I stuck to the statement because I didn't want to represent anybody.
MR. LESKO: Do you recall Clare Bronfman claiming that her father had funded someone in litigation involving NXIVM, paid someone?
STEPHEN HERBITS: There was early on in the records that I have, there were allegations that he funded Rick Ross. And but I don't know when that stopped or how it stopped. I was not involved in that.
I do remember later an e-mail that Edgar copied me on to Clare that said, you're wrong, I'm not funding him, and I'm not going to fund him. And it was a fairly hostile communication between the two.
MR. LESKO: Between 2005 and 2010, do you recall if Edgar Bronfman used a computer?
STEPHEN HERBITS: Yes, he always used the computer.
MR. LESKO: Did he have one or more than one?
STEPHEN HERBITS: He had one in his office. But because I traveled with him all the time, I traveled with his laptop. But I always traveled with two laptops. Because sometimes they didn't work, this was in the early years of laptops and he would get frustrated. I would take that one away and give him the other one. When we came back I had them both updated on everything on both of them.
MR. LESKO: The computer in his office was what type of computer?
STEPHEN HERBITS: I don't know what type.
MR. LESKO: Desktop?
STEPHEN HERBITS: Desktop.
MR. LESKO: Did he use that computer personally?
STEPHEN HERBITS: A lot of times during the day.
MR. LESKO: When traveled did he actually use one of the laptops?
STEPHEN HERBITS: He did. It was his habit after we left a capital some where for him to write a diary on his computer of the trip.
MR. LESKO: Your Honor, if we could initially just publish some exhibits to the witness?
THE COURT: Go ahead.
BY MR. LESKO:
MR. LESKO: Mr. Herbits, I'm showing you on your screen what is marked for identification as Government's Exhibit 1491R. Do you see part of that document before you?
STEPHEN HERBITS: Yes.
MR. LESKO: This is a three-page document, I'm going to show you the third page. I'm going to show you the second page. And I'm going to show you the first page. Chain of e-mails, do you recognize those e-mails?
STEPHEN HERBITS: Yes.
MR. LESKO: Are they e-mails between you and Clare Bronfman in November of 2008?
STEPHEN HERBITS: Yes.
MR. LESKO: I'm going to show you what is marked for identification as Government's Exhibit 1492R, two-page document, start with the second page. Then I'm going to move to the first page. Do you recognize that document?
STEPHEN HERBITS: Yes.
MR. LESKO: Is that an e-mail from you to Clare Bronfman in November 2008?
STEPHEN HERBITS: Yes.
MR. LESKO: Showing you what is marked for identification as Government's Exhibit 1493R. I'm going to show you the second page. Now I'll show you the first page. Do you recognize that document?
STEPHEN HERBITS: Yes.
MR. LESKO: Is that an e-mail back and forth between you and Clare Bronfman on December 6, 2008?
STEPHEN HERBITS: Yes.
MR. LESKO: I'll be precise, the original e-mail from Clare to you is dated December 4, 2008?
STEPHEN HERBITS: Right.
MR. LESKO: I'm going to show you what is marked for identification as Government's Exhibit 1494R. I'll start with the last page and work my way forward. Last page, second to last page, third to last page, this is the second page of the document, and the first page. Do you recognize that document?
STEPHEN HERBITS: Yes.
MR. LESKO: Is that a chain of e-mails between you and Clare Bronfman in December 2008?
STEPHEN HERBITS: Yes.
MR. LESKO: I'm going to show you what is marked for identification as Government's Exhibit 1495R, do you recognize that document?
STEPHEN HERBITS: Yes.
MR. LESKO: Is that an e-mail from Edgar Bronfman to Clare Bronfman, yourself, Sarah Bronfman and another individual?
STEPHEN HERBITS: Yes. The first individual you're talking about?
MR. LESKO: On the CC.
STEPHEN HERBITS: That's Adam.
MR. LESKO: Adam Bronfman?
STEPHEN HERBITS: Yes.
MR. LESKO: Is that dated January 6, 2011?
STEPHEN HERBITS: Yes.
MR. LESKO: And you recognize that?
STEPHEN HERBITS: Yes.
MR. LESKO: Last in the series, Government's Exhibit 1496R, do you recognize that document?
STEPHEN HERBITS: Yes.
MR. LESKO: E-mail from you to Clare Bronfman, Sarah Bronfman, CCing Edgar Bronfman on January 19, 2011?
STEPHEN HERBITS: Yes.
MR. LESKO: Your Honor, we offer Government's Exhibit 1491R, 1492R, 1493R, 1494R, 1495R, 1496R.
MR. AGNIFILO: No objection.
THE COURT: All right. Exhibits 1491R, 1492R, 1493R, 1494R, 1495R, 1496R are received in evidence.
(Government Exhibit 1491R, 1492R, 1493R, were received in evidence.)
(Government Exhibit 1494R, 1495R, 1496R, were received in evidence.)
BY MR. LESKO:
MR. LESKO: I'm going to start with 1491R. So this is an e-mail chain; is that correct?
STEPHEN HERBITS: Yes.
MR. LESKO: A collection of back and forth e-mails between you and Clare?
STEPHEN HERBITS: Yes.
MR. LESKO: The initial one, a little tough to tell, the initial one starts here; is that correct?
STEPHEN HERBITS: Yes.
MR. LESKO: That's dated November 10, 2008 from Clare Bronfman to you?
STEPHEN HERBITS: Yes.
MR. LESKO: It indicates, After much consideration I've chosen to withhold any evidence at this point. I believe the trust is built and we have not done so yet.
What was your understanding of what Clare was communicating in that e-mail?
STEPHEN HERBITS: It looks like part of a pattern in which they asked me to help, I asked for the information I needed to help, and they didn't give me the information I needed to help, and I didn't help.
MR. LESKO: So that is reflected in your response, where you say, I can be of no help without adequate assistance.
And your response is on the same date, November 10, 2008?
STEPHEN HERBITS: Right.
MR. LESKO: You say, I consider myself, quote, "played or gamed," what did you mean by, that if you recall?
STEPHEN HERBITS: Well, I'm getting the feeling that they want me to do something because of my relationship to Edgar and their relationship together to Edgar to do things which I had already expressed over a number of times before that I was not going to do. And it was just basically my pushing back.
MR. LESKO: And so the next e-mail, again dated November 10, 2008, Clare Bronfman indicates, I am confused. I was under the impression that Dad had asked you to come in and help resolve this situation. And he wanted to help us turn things around and confided in you to do so. If do you not want to or feel that you are not able to, just tell me and I can find someone who is able to.
Is that what she said in that e-mail?
STEPHEN HERBITS: That's what I remember.
MR. LESKO: Your response is, Typical - friend or enemy.
What did you mean by that?
STEPHEN HERBITS: I was beginning to get the impression that those who helped her were friends; and those who they didn't like were enemies. I was beginning to feel the shift that I was joining the second group.
MR. LESKO: You also say in that same e-mail that, Your behavior makes it clear that you want nothing more than a puppet.
What did you mean by that?
STEPHEN HERBITS: They wanted someone to do their bidding exactly as they want to do it, with or without knowledge, regardless of the consequences, regardless if it was proper or not. And my refusal to do, as I expressed to them, I'm not a puppet. I'm not simply doing what you told me to do.
MR. LESKO: Let's go to the first page of Government's Exhibit 1491. The bottom part of it, is that November 11, 2008 e-mail from Clare Bronfman to you responding to the e-mail we just discussed?
STEPHEN HERBITS: Yes.
MR. LESKO: So this e-mail apologizes to you, indicates that Clare Bronfman does not consider you a puppet; is that right?
STEPHEN HERBITS: That's what she says.
MR. LESKO: Let's talk about some of the sentences here. She says, We also have evidence of clear prejudice wrongdoing and intent to destroy NXIVM's reputations (Sarah and mine along with it) by a different party.
She mentions Times Union stories.
Continues by saying, They fail to seek any of the facts, even to the point that they published Hochman's work without his permission, published several articles with false evidence, and have refused to meet with the company's president.
What was your understanding what she was saying there what, Clare was saying there?
STEPHEN HERBITS: She was becoming deeply worried about the investigation that the Times reporter was undertaking. And that's her expression of it.
MR. LESKO: Next she says, The owner of this entity is George Hearst. I'm sure you recollect the situation back in the 70s with Patti Hearst. In the case brought against her, she defended herself through the accusations of brainwashing.
What is Clare Bronfman referring to there?
STEPHEN HERBITS: The left-over feeling from Edgar was that the girls were getting deeply involved in what he had earlier --
MR. AGNIFILO: I object, Judge. I object to this. That wasn't the question.
MR. LESKO: I'll rephrase, your Honor.
THE COURT: All right.
BY MR. LESKO:
MR. LESKO: What was the situation, if you know back, in the 70s with Patti Hearst?
STEPHEN HERBITS: Going back a long time for my memory.
MR. AGNIFILO: I object to this as well.
THE COURT: Overruled. If you know.
STEPHEN HERBITS: I remember the case only from the media, obviously I had no connection with it. But she used a defense that she was brainwashed and shouldn't be found guilty.
THE COURT: Next question.
MR. LESKO: Was she part of a organization?
MR. AGNIFILO: Your Honor, I object. I object. I object to all of this, Judge.
THE COURT: Overruled.
MR. LESKO: Was she part of --
STEPHEN HERBITS: She was part of an organization, and the organization was under trial, and she was sort of trying to get from underneath it.
MR. LESKO: To cut to the chase, part a group that was committing bank robberies?
STEPHEN HERBITS: Yes.
MR. LESKO: Her defense was she was brainwashed by the group?
STEPHEN HERBITS: That's right. And what was eventually found to be crimes in that context, she should be excused from.
MR. LESKO: So Clare Bronfman continues, As any person who values their intelligence is aware, brainwashing implies a lack of free will and is scientifically debunked. Even prisoner of war camps have never been successful in brainwashing inmates. If there were truly an effective method of brainwashing, it would revolutionize the prison system. I can certainly make a logical leap given our other evidence and the actions of the Times Union that Hearst carries an active prejudice against us.
What was your understanding of what Clare Bronfman was saying there?
STEPHEN HERBITS: This goes beyond my scientific knowledge of brainwashing and cults and stuff like that. But clearly she's simply saying that this person is trying to do to us what is not true, because we haven't been brainwashed.
MR. LESKO: Clare Bronfman goes on in the second paragraph, I do know that Bill Clinton in his last day in office pardoned Patti.
Next sentence, He might be able to help.
What was your understanding of what Clare Bronfman was alluding to there?
STEPHEN HERBITS: The implication of that is that the Bronfmans and the Clintons knew each other very well for a long period of time, going back to the 90s when the President asked Edgar to Chair a Presidential Advisory Commission on Holocaust Assets in the United States. It was Hilary who worked that issue, successfully, with some states and the State Department, et cetera. He then I believe gave Edgar a medal, Honor of Freedom or something. Edgar supported Hilary in her Senate races and Presidential race, and they stayed in pretty close contact.
At one point the President, while he was President, did a event for the World Jewish Congress and came to speak to us. And unbeknownst to us, it was a surprise there was so much press as there were, he had told them that he announced an Iranian policy of sanctions for something that they were doing, which got national press.
But they knew each other pretty steadily from the early 90s through his death.
MR. LESKO: How about you? Did you have a personal relationship with Bill Clinton?
STEPHEN HERBITS: It wasn't one that I could walk up and say, Do you have a few minutes, I got to talk to you about something. He recognized me when he saw me, as did Hilary. They frequently came to stand where I was standing, because I didn't believe it was my position to go to him. We would talk for a few minutes. We talked about issues. We talked about politics. We talked about the family. But I never had lunch with him.
MR. LESKO: When Clare Bronfman says, He might be able to help. Is she referring to her father or you contacting Bill Clinton?
STEPHEN HERBITS: She's talking to me, because she continued to believe that I could go to her father and get this taken care of.
MR. LESKO: Next paragraph, last sentence, this is a paragraph dealing with Rick Ross, I also believe you could rapidly facilitate the proper Indictment and conviction of Rick Ross and Joseph O'Hara.
What is your understanding of what Clare Bronfman is saying there?
STEPHEN HERBITS: It's the same messages going on at that point for three years, four years. And I never changed my position. I was not going to get involved. I have never spoken to the man, never spoken to anybody in his office. It just wasn't something I was going to do.
MR. LESKO: Was it your understanding that Clare Bronfman wanted Rick Ross and Joseph O'Hara to get indicted?
STEPHEN HERBITS: Yes.
MR. LESKO: Let's turn to your response. You start out by saying, quote, "A detective with no leads is blind," end quote. What did you mean by that?
STEPHEN HERBITS: Same story. She was asking me to do something for her without telling me what the specifics were. For instance, if she had given me specifics, demonstrated at least to me that he crossed threshold on behavior of Rick Ross' part that I thought was a problem, a problem either in terms of law or in terms of behavior or morality or something that was negatively effected, I would have taken it to Edgar and said, we need to look at it. But ask me to be a detective without information, I can't do it.
MR. LESKO: Let's move quickly through the next few exhibits. Second page of 1492R is basically blank. First page, for efficiency sake, I'll try to summarize it, then move on.
Fair to say at the top, basically the first paragraph is a quote of an e-mail from Clare Bronfman to you. And then the bottom paragraph is your response to that e-mail. Is that fair to say?
STEPHEN HERBITS: Right.
MR. LESKO: In essence does Clare Bronfman's e-mail indicate that certain information regarding a loan was made available to Forbes and she's upset by that. And raises the question of whether that implicated attorney-client privilege?
STEPHEN HERBITS: She was looking at that as a possible way to get to the lawyers to punish them.
MR. LESKO: Who was David Stoll?
STEPHEN HERBITS: He was Edgar's personal and the Trust's personal lawyer, nothing to do with the corporation, but whom I met a number of times. That was his primary activity, outside counsel.
MR. LESKO: And an e-mail from Clare appears to be dated November 20, 2008, her response is dated November 24, 2008; is that correct?
STEPHEN HERBITS: Yes.
MR. LESKO: Your response in essence is, Implicating an attorney would be problematic, could be slanderous, and would be expensive.
STEPHEN HERBITS: Yes.
(Continued on next page.)
DIRECT EXAMINATION (Continued) BY MR. LESKO:
MR. LESKO: I'm going to show you Government's 1493R, second page contains no contents.
First page starts with a December 4, 2008 email from the Clare Bronfman to you; is that correct?
STEPHEN HERBITS: Yes.
MR. LESKO: So in that email, Clare Bronfman says: The Ross camp needs to be fearful, back down and look to fix the damage they have done. The thought of criminal charges may help inspire this.
Is this common along the same lines as other comments that you've made about Rick Ross?
STEPHEN HERBITS: Yes.
MR. LESKO: It says: I know you are incredibly resourceful and have the intelligence to figure this out.
Again, is this similar to the comments you discussed previously?
STEPHEN HERBITS: Yes, I mean they were still asking me to do things that I didn't think improper.
MR. LESKO: She mentions the Forbes issue, which we just discussed; is that right?
STEPHEN HERBITS: Right.
MR. LESKO: And then your response, in essence, is that -- you refer to the memo you discussed where you gave you advice to pursue a PR strategy and you just rely on that memo; is that fair to say?
STEPHEN HERBITS: Yes, in reading it, that's what I said, right.
MR. LESKO: And then you discuss the Forbes, or you call it Fortune issue, and the bank loan information, right?
STEPHEN HERBITS: Yes.
MR. LESKO: Okay.
Moving to government's 1494R. The last four pages of this exhibit are essentially blank.
And just to orient all of us, the second page, which is really how the email chain starts, that includes the two emails that we just discussed that are in 1493R; is that correct?
STEPHEN HERBITS: Right.
MR. LESKO: Okay. So let's go to the next email which starts at the bottom of page 1 of 1494R.
And that's an email dated December 6, 2008 and it's from Clare Bronfman to you; is that right?
STEPHEN HERBITS: Yes.
MR. LESKO: And it reads: I'm sorry I was not clear. I do not care how or what you do with respect to the results needed for Ross. I just mentioned the indictment thing because I've been told by numerous officials Ross is very indictable. But white collar crimes often needs political clout. I understand you may not have or want to use/do this.
What was your understanding of what Clare Bronfman was saying there?
STEPHEN HERBITS: That's both imploring me to do it anyway, and sort of gently saying that, you know, if I won't, I won't.
MR. LESKO: Second page she mentions that there's a mediation date upcoming; is that right? At the very top.
STEPHEN HERBITS: The mediation date, yes.
MR. LESKO: Okay. Then you respond -- well, pardon me.
She sends a subsequent email dated December 15th, 2008, basically saying that she hasn't heard from you; is that right?
STEPHEN HERBITS: Correct.
MR. LESKO: And in this email, she's talking about resolving the Rick Ross situation and says: It would make, quote, a wonderful story when dad appears at the event with His Holiness in support of Sara and I, end quote.
Do you see that sentence?
STEPHEN HERBITS: Yes.
MR. LESKO: Okay. Did Edgar Bronfman actually appear at the Dalai Lama event?
MR. LESKO: And who communicated that fact to Clare Bronfman?
STEPHEN HERBITS: I think it was me.
MR. LESKO: I'm going to show you --
MR. LESKO: One moment.
MR. LESKO: Sorry. I'm going to go back to 1494R.
A little too quick with the trigger there.
So after mentioning that she has mediation, Clare Bronfman then says quote: I hope the Ross and Sutton Camp are inspired to settle and make substantial appropriate reparations, paren, restoring the good names and monies of NXIVM, comma, Nancy, comma, Keith, comma, my sister and myself, et cetera, end paren.
What was your understanding of what Clare Bronfman meant when she said that?
STEPHEN HERBITS: This was all in the context of trying to clear up issues before the Dalai Lama came so that NXIVM would be, in a sense by his presence, given a good reputation.
MR. LESKO: So you respond to these two emails, the one from December 6th and the one from December 15th, on December 15th; is that right?
STEPHEN HERBITS: Right.
MR. LESKO: And, in essence, you basically say you're not listening to me.
STEPHEN HERBITS: Right.
MR. LESKO: Okay. And that you have nothing to add, right?
STEPHEN HERBITS: Right.
MR. LESKO: Okay.
All right. Government's 1495R. This is a January 6th, 2011, email from Edgar Bronfman to Clare Bronfman, Adam Bronfman and Adam.
Do you recognize Adam's email?
STEPHEN HERBITS: Yes.
MR. LESKO: At the AOL address?
STEPHEN HERBITS: That's right.
MR. LESKO: Yourself and Sara Bronfman; is that right?
STEPHEN HERBITS: Yes.
MR. LESKO: So let's just read this. Edgar says quote -- addressing it to Clare, the email to Clare: I've given a lot of attention to your email. I have spoken to both Steve and Adam and have asked them to do whatever is possible to fix the situation. The problem they tell me is that you will not share whatever evidence you have that some charitable organizations are somehow funding Rick Ross and his operations against NXIVM, or anything else adverse to you and Sara. It seems obvious to me that you still think I am supporting Rick Ross in some way or another. That is simply not true. In no shape or form would I do that and tell you that I am not.
Whether or not you want to believe me, I do not lie and I love you two very much. Someone is not telling you the truth. Why aren't you trying to figure out who that might be? Who has something to gain? Certainly not me. What would be my motive? Tons of love, even if not requited, Pops.
What as your understanding of what Edgar Bronfman was communicating to his daughters and his son in that email?
STEPHEN HERBITS: It was the -- there was another group that Edgar was involved in as a major donor. His brother, in fact, Edgar's brother was, in fact, a cochair and founder of this organization. And it was believed, the girls suggested to me, that money was coming from that organization to Ross, therefore assuming that Edgar had something to do with it.
MR. LESKO: So let's get into that. And this is the last of the series 1496R.
Just to orient all of us, email from yourself to Clare Bronfman, Sara Bronfman and Edgar Bronfman, dated January 19, 2011.
Is that what this email is?
STEPHEN HERBITS: Yes.
MR. LESKO: Okay. And the organization you just referred to, is that the Birthright organization?
STEPHEN HERBITS: Yes.
MR. LESKO: Okay. Is the Birthright organization, just for efficiency sake, the nonprofit that funds travel for Jewish Americans to go spend time -- children, young Jewish Americans, to spend time in Israel?
STEPHEN HERBITS: Yes.
MR. LESKO: And essentially every American Jewish child has the right to take that trip using funds provided by the Birthright.
STEPHEN HERBITS: Yes.
MR. LESKO: Okay. The allegation is that the Birthright -- some entity affiliated with Birthright was, in fact, funding Rick Ross; is that right?
STEPHEN HERBITS: That's what their suggestion to me was that was happening.
MR. LESKO: Okay. So what were you saying in this email to Clare and Sara, cc's Edgar Bronfman?
STEPHEN HERBITS: That was specific enough for me to check him, because I had sources that those organizations, because Edgar was involved and Charles is involved, I called him and said will you check to see if you have any payments made to Rick Ross. The answer was no.
MR. LESKO: And you basically communicated that to Clare and Sarah Bronfman?
STEPHEN HERBITS: Yes.
MR. LESKO: Okay. All right.
Just going to ask you if you recognize a few names and then we'll be done.
Do you recognize the name Malcolm Stevenson Forbes?
STEPHEN HERBITS: I don't know if that's the father or the son.
MR. LESKO: The son, who is that?
STEPHEN HERBITS: Steve is the Stevenson -- Malcolm Stevenson Forbes, the son Steve, referred to as Steve?
Yeah, he's a popular -- he took over from his father when he died, the magazine. He ran for president, I believe, on a flat tax policy.
MR. LESKO: And the father, what was the father? Was he the founder of Forbes?
STEPHEN HERBITS: Founder was the father of Forbes.
MR. LESKO: Joe Bruno? Who was Joe Bruno?
STEPHEN HERBITS: Was a state representor, but I don't remember specifically now. I did at that time, but...
MR. LESKO: In new York State?
STEPHEN HERBITS: New York state.
MR. LESKO: Eliot Spitzer?
STEPHEN HERBITS: Eliot was the attorney general for the State of the New York. He was the attorney general when I negotiated with the head of the Charities Bureau. Because of the World Jewish Congress, there was an investigation. I had taken over the investigation -- the World Jewish Congress -- and negotiated the complexity of that situation under the Charities Bureau. Eliot Spitzer, at that time, was the attorney general.
I did not meet him in that contact, but there was context between my lawyer and his, and his -- him and his staff.
MR. LESKO: Was Eliot Spitzer later elected governor of the State of New York?
STEPHEN HERBITS: Yes.
MR. LESKO: Familiar with the name Yuri Plyam?
STEPHEN HERBITS: I learned it the first time when I was -- I got the transcript of the case that had been recommended to me, and I am familiar with the name, and he was, I believe, involved in the development of the property in LA for which this lawsuit arose.
MR. LESKO: Bob Crockett, do you recognize that name?
STEPHEN HERBITS: I remember him as a lawyer, but I don't remember in what context.
MR. LESKO: Was he a lawyer in the Albany, New York area?
STEPHEN HERBITS: In the New York area.
MR. LESKO: Is he involved with NXIVM?
STEPHEN HERBITS: I believe I learned it in that context. I have no other reason to know of any lawyers in Albany.
MR. LESKO: Do you recognize the name Toni Natalie?
STEPHEN HERBITS: Toni Natalie, I knew, because she was one of the people that called Edgar to teller her about her experiences. I took the call, as Edgar asked me to, because he didn't want to get involved, and she told me her story.
MR. LESKO: And she was -- the experiences were in NXIVM?
STEPHEN HERBITS: In NXIVM --
MR. LESKO: Charles Schumer --
STEPHEN HERBITS: -- in and after she left NXIVM.
MR. LESKO: Charles Schumer. Do you recognize the name Charles Schumer?
STEPHEN HERBITS: Yes, currently the minority leader from the senator for the State of New York.
MR. LESKO: Roger Stone, do you recognize that name?
STEPHEN HERBITS: Yes, for a long time when I was in Washington, he was a very, very active political consultant. I had worked for some political consultants who, frankly, didn't approve of his tactics, and so I've been aware of him for a very long time, but now anybody that reads the news knows Roger Stone is person who advises Trump.
MR. LESKO: Person known recently.
STEPHEN HERBITS: Yes.
MR. LESKO: Joe O'Hara, do you recognize that name?
STEPHEN HERBITS: I do. He was a person who was not in NXIVM. I don't know if he ever was in NXIVM. But he was one of the people who called on behalf of more than one of the people who had left NXIVM to relay to me things about lawsuits against these people and other information.
MR. LESKO: Was he a lawyer?
STEPHEN HERBITS: I don't know.
MR. LESKO: Nothing further, Your Honor.
THE COURT: Cross-examination.
CROSS-EXAMINATION BY MR. AGNIFILO:
MR. AGNIFILO: Good afternoon. I only have a few questions for you.
You mentioned the name Frank Parlato?
THE COURT: Just introduce yourself.
MR. AGNIFILO: Oh, sorry. I'm sorry. Pardon me. It's been a long day.
MR. AGNIFILO: My name is Marc Agnifilo and I represent Keith Raniere. I have a few questions for you.
I will be surprised if we talk for more than five minutes, and then I'll let you get on your way.
On direct examination you mentioned the name Frank Parlato.
STEPHEN HERBITS: Yes.
MR. AGNIFILO: And I think you mention it in conjunction with a lawsuit that he had against Clare Bronfman.
Do I have that right?
STEPHEN HERBITS: I learned the name the first time in the transcript of the LA case.
MR. AGNIFILO: Right. And was it your understanding that Clare and/or Sarah Bronfman were suing Frank Parlato and some other people?
STEPHEN HERBITS: At a later time I learned that, but not directly from any of the parties.
MR. AGNIFILO: All right. And I think you said on direct examination that Clare and Sara won that lawsuit against Parlato?
STEPHEN HERBITS: My knowledge was that they won the lawsuit in LA, which was the Plyam lawsuit, and that's the one where the suit was 28 million. They won 10 million. I don't know if that was the last figure, because I think it was reserved in the transcript. And I learned subsequently from their father that they had paid 11 million to win that $10 million.
I'm under the impression, but I'm not sure of the source, maybe his own articles or something, that he won that lawsuit -- his lawsuit against the -- against the girls. The girls sued against him.
MR. AGNIFILO: And when you say his own articles, you're referring to Frank Parlato because he's a blogger, right?
STEPHEN HERBITS: Yes, he does articles. I stopped reading them when this all started happening, because I didn't want to get complicated with what I remembered and what I was learning.
MR. AGNIFILO: That's wise.
Now, let's -- now Frank Parlato, when you were talking about the Plyam lawsuit, do you have an understanding that Frank Parlato was a civil defendant in the Plyam lawsuit?
THE COURT: Excuse me. What lawsuit?
MR. AGNIFILO: The Plyam -- Yuri -- Yuri Plyam.
THE COURT: Go ahead.
STEPHEN HERBITS: I don't remember the role. I read it eight years ago. I have not reread the transcript. It was really long and boring. But I remember the name from that context because it was in that context when the statements were made, that I represented Edgar Bronfman, to Frank Parlato, with instructions about what to do with this property. None of that was true.
MR. AGNIFILO: Got it.
And so the Parlato lawsuit was in relation to a real estate transaction of some sort that Clare and/or Sara were also involved?
STEPHEN HERBITS: My -- remembering vaguely from the lawsuit was that they went out and purchased land. It was not doing well under the development. So they sued the developer. And Frank had some role, which I don't really remember. I think he went out there to try to resolve the issue and then the next thing is that they're in court.
MR. AGNIFILO: Okay. And so -- and so Clare was an adversary, a legal adversary, with Frank Parlato, correct?
STEPHEN HERBITS: I can't be precise about that.
MR. AGNIFILO: You're on opposite sides of a legal dispute.
STEPHEN HERBITS: Well, I'm not sure of that. The vague memory I have is that they were accusing Edgar of the mess out there by saying that I communicated instructions to Parlato.
MR. AGNIFILO: That you communicated instructions to Parlato?
STEPHEN HERBITS: A man I've never heard of before I read it.
MR. AGNIFILO: That was my next question.
In fact, you never communicated anything to Parlato.
STEPHEN HERBITS: That's when I got annoyed because I think perjury is a problem.
MR. AGNIFILO: Have you ever spoken with Frank Parlato?
MR. AGNIFILO: Have you ever seen Frank Parlato?
STEPHEN HERBITS: No, never been in the same room with him, to my knowledge.
MR. AGNIFILO: Now, you said that -- you made reference in direct examination that certain people who left NXIVM were sued.
Do you know if those lawsuits were because of allegations that they hacked into the NXIVM computer?
STEPHEN HERBITS: I do not know that specifically. Most of the praxes that I read of those suits had to do with the accusation by the lawsuits that the people who left were stealing proprietary property.
MR. AGNIFILO: Okay. So now there's the Rick Ross lawsuit. Tell me if this is your understanding.
Is that proprietary information of NXIVM was taken from NXIVM and then used in a context that was inconsistent with the confidentiality agreement that the person signed?
STEPHEN HERBITS: I never read any of the lawsuits --
MR. AGNIFILO: Okay.
STEPHEN HERBITS: -- involving Rick Ross.
MR. AGNIFILO: That's fine.
Now, you talked at some length about the relationship between Clare Bronfman and her father, Edgar, correct?
Right? You have to answer so she can --
STEPHEN HERBITS: Yes. Yes, I'm sorry.
MR. AGNIFILO: All right. And fair to say that Clare was a member of NXIVM, was in NXIVM, for a period of time, correct?
STEPHEN HERBITS: Excuse me. Yes.
MR. AGNIFILO: Take your time.
I'm not going to have you for another five minutes.
STEPHEN HERBITS: That's okay.
THE COURT: You have had him for five minutes. This is your second five minutes.
MR. AGNIFILO: I was referring to the second.
THE COURT: I'm watching the clock. Don't keep promises you can't keep.
Go ahead.
MR. AGNIFILO: All right. So -- and now I lost my train of thought. Now it's going to take me ten seconds. All right.
So Clare was in NXIVM for a period of time, right?
STEPHEN HERBITS: Yes.
MR. AGNIFILO: All right. And she was trying to convince her father that this was a good thing, that she liked this and she wanted to convince Edgar this was helping her, and she wanted Edgar to try it, right?
STEPHEN HERBITS: Yes.
MR. AGNIFILO: And Edgar tried it and it wasn't for Edgar; fair to say?
STEPHEN HERBITS: Edgar tried ESP.
MR. AGNIFILO: ESP, okay.
And --
STEPHEN HERBITS: And he said it wasn't for him personally, but, you know, that was nothing he was worried about at that stage.
MR. AGNIFILO: Okay.
STEPHEN HERBITS: That was very early.
MR. AGNIFILO: And then at some time or another, Edgar is quoted in a media outlet saying that it was a cult.
Do I have that right?
STEPHEN HERBITS: Yes, I wasn't around at that time. But I subsequently read it.
MR. AGNIFILO: Okay. And do you know, based on what you were able to observe, if Clare didn't want her father to think this?
STEPHEN HERBITS: I wasn't there during that period, close enough that they were, either of them, would discuss that with me.
MR. AGNIFILO: Okay. Fair to say at the end of Edgar's life, when Edgar passed away, Clare and Edgar were -- were together. I mean actually, physically together. Clare spent the last day of Edgar's life with her father?
STEPHEN HERBITS: This requires a very precise answer.
MR. AGNIFILO: Okay.
STEPHEN HERBITS: Yes. She was there physically.
MR. AGNIFILO: She was with her father the day that Edgar passed away.
STEPHEN HERBITS: As was I.
MR. AGNIFILO: You were there?
STEPHEN HERBITS: Yes.
MR. AGNIFILO: Did you go to the funeral?
MR. AGNIFILO: Do you know if Clare went to the funeral?
STEPHEN HERBITS: I don't know. I didn't go.
MR. AGNIFILO: And so you were with Clare and Edgar when Edgar passed away.
STEPHEN HERBITS: I was in his home at 4:00 in the afternoon. I was there until 5:00, with a 20-minute break about because the doctor came in to see him, and resumed, and I left around 5:00. Clare was there.
MR. AGNIFILO: And so Clare was with him literally when her father passed away, Clare was with her father.
STEPHEN HERBITS: Father passed away at 8:00. I wasn't there between 5:00 and 8:00.
MR. AGNIFILO: And when you left, Clare was still there?
STEPHEN HERBITS: Clare was there when I left.
MR. AGNIFILO: And they had a complex relationship; fair to say?
STEPHEN HERBITS: Complex is a gentle word, yes.
MR. AGNIFILO: And sometimes in families where the father has multiple wives, and multiple children from different wives, the relations between a daughter and a father could be complex; fair to say?
STEPHEN HERBITS: I accept that as public knowledge.
MR. AGNIFILO: And something that you believe as well?
STEPHEN HERBITS: I have not had that many experiences with that many people with that many wives and that many children.
MR. AGNIFILO: In all of your dealings, have you ever met Keith Raniere?
MR. AGNIFILO: Nothing else.
REDIRECT EXAMINATION BY MR. LESKO:
MR. LESKO: So when Mr. Agnifilo just asked you about whether or not Clare Bronfman was with her father when he passed away, you answered that she was there physically.
STEPHEN HERBITS: Right.
MR. LESKO: What did you mean by that?
STEPHEN HERBITS: In the last year or so, 2013, second half the 2012, I had in January 2012 removed myself from many further dealings between them, because I was getting to be is asked things that were, I felt, improper; not just wrong or immoral. So I said I don't want to be part of this anymore.
I had my responsibilities for the trust, and things, and so we never really discussed that.
When I was still in touch with the sons, because of the trust, and they would comment to me about tensions about suddenly after all these years --
MR. AGNIFILO: Objection. Son's comments.
THE COURT: Go ahead.
STEPHEN HERBITS: -- were getting difficult because suddenly they were reentering his life in a way that suggested to them that there were money issues involved.
MR. LESKO: And they, when you say they reentered?
STEPHEN HERBITS: The sons were beginning to believe that the girls were entering their -- spending time with Edgar and doing these things for him, because he was beginning to decline.
MR. LESKO: So when she, Clare Bronfman, was with her father the day he passed, you say she was physically there. Where was she mentally?
STEPHEN HERBITS: I can't tell you where she was mentally.
MR. LESKO: No further questions.
MR. AGNIFILO: I just have one question.
RECROSS-EXAMINATION BY MR. AGNIFILO:
MR. AGNIFILO: So you're actually going to begrudge a daughter and her last minutes with her father because of something you heard from her half brothers? Is that -- do I understand this right?
STEPHEN HERBITS: I think you're putting words in my mouth. My relationship with Edgar was one of absolute integrity and honesty. I never violated that with him. And anybody around and close to him will tell you that. That's how I built my reputation and my life for him and for many, many other really important people.
I'm telling you the facts that I see them. I'm telling -- and I spoke to him always about those facts and the fact is this: That it was -- I watched them from 2005 to 2013. The fact is the relationship was up and down during that period; pressuring him and disappointing him, because he expressed that to me; making it unpleasant for him; asking him to do things that -- he asking me to do things on his behalf; asking him to do things for their behalf, which created problems for him and disappointment.
Towards 2012 and into 2012 and 2013, their behavior increased substantially by dates and times of visits. Those are facts. Those are checkable.
MR. AGNIFILO: Can I ask you a question?
THE COURT: Let him finish.
MR. AGNIFILO: This wasn't the question I asked, Judge.
THE COURT: Let him finish. You opened the door. Let him finish.
MR. AGNIFILO: That's fine, okay.
STEPHEN HERBITS: So I'm not begrudging them -- the improper term, as far as I'm concerned, anything. I'm describing a situation as I saw it.
THE COURT: Next question.
MR. AGNIFILO: Do you know if Clare was going to see her father more often because she knew he was going to die and she wanted to spend time with him before he did?
STEPHEN HERBITS: I don't know why Clare did what she did. I'm simply telling you that the pace of visits and the content of those visits increased dramatically as he got closer to death.
MR. AGNIFILO: Did you ever ask with Clare why she was coming to see her soon-to-be-passed-away father more often before he died?
MR. LESKO: Objection.
STEPHEN HERBITS: I have no reason to.
MR. AGNIFILO: I have nothing further.
THE COURT: Anything further?
MR. LESKO: No, Your Honor.
THE COURT: The witness is excused.
You may stand down, sir.
STEPHEN HERBITS: Thank you.
THE COURT: You're welcome.
(Whereupon, the witness was excused.)
THE COURT: We'll take our afternoon break.
All rise for the jury.
(Jury exits the courtroom.)
THE COURT: The next witness is ready. How much on direct?
MS. PENZA: I believe approximately an hour, Your Honor. Maybe a little bit more.
THE COURT: He may roll over to next week -- tomorrow morning. And then you have your next witness who is a cooperator.
MS. PENZA: Yes. That's right, Your Honor.
THE COURT: Okay. We'll take a ten-minute break.
(Whereupon, a recess was taken at 3:29 PM)
THE COURT: Sidebar please.
(Continued on the next page.)
[REDACTED]
(In open court; Jury not present.)
MS. PENZA: All right, your Honor. I think we're ready.
Do you want me to put it on the record before the jury comes in?
THE COURT: Why don't you put them on the record with the jury present.
MS. PENZA: Fair enough.
THE COURT: Call the jury.
MR. AGNIFILO: So Judge, just so it's clear. Some of the pieces of evidence are going to come in subject to our objection that we raised I think two days ago that the Court ruled on. Some of them are coming in on consent.
So I don't know how Your Honor wants to handle it, but I think what Ms. Penza's prepared to do is, given an entire listing of all the pieces of evidence that will come in through this witness, and I think delineate what is on consent and then what is subject to the --
THE COURT: Let's do it right now so we don't confuse the jury.
MR. AGNIFILO: That's fine.
MS. PENZA: Okay. Your Honor admitted on consent of the defense are Government Exhibits 102, 106, 107, 109, 113, 114, 119, 124, 125, 126, 127, 128, 129, 130, 131, 134, 135, 137, 138, 139, 140, 141, 143, 144.
144 through 149.
153, 154, 155, 158, 160, 161, 162, 163, 168, 171, 174, and 177.
And then 176.
THE COURT: I'm sorry.
MS. PENZA: I'm going -- that was one set of lists so now I'm going back to 176.
THE COURT: Is admitted on consent?
MS. PENZA: Yes, these are still on consent. I'm sorry, they were just in a different -- in a separate place.
THE COURT: Go ahead. Keep going.
MS. PENZA: GX176 -- sorry, Government Exhibit 176, 180, 365, 368, 369, 370, 371, and 1483.
And then over objections that have been raised by defense counsel.
Government Exhibit 204 and 204A. Government Exhibit 1399. Government Exhibit 1401. Government Exhibit 1463 through 1469, and then 1472.
THE COURT: Now, as to those that are over objection, is it subject to something?
MS. PENZA: No, your Honor, those were all the ones where you ruled that they were -- I think --
MR. AGNIFILO: So the basis of the objection was we objected because these are just documents that were found in the box that was in Nancy Salzman's basement.
THE COURT: Oh, right.
MR. AGNIFILO: And we objected on hearsay grounds, the reliability ground --
THE COURT: Right.
MR. AGNIFILO: -- with the absence of a witness.
Your Honor ruled on it, so -- I'm not raising the objection anew, I'm just noting the fact, that's all.
THE COURT: That they were objected to and I overruled the objection.
MR. AGNIFILO: That's right.
THE COURT: Okay. So all of those that have been identified are admitted into evidence, 1, 2, 3, 4 and -- 11 of them are over objection.
MR. AGNIFILO: Yes, Judge.
MS. PENZA: Yes, Your. Honor, thank you.
THE COURT: All right. Please bring in the jury.
(Jury enters the courtroom.)
THE COURT: Please be seated.
The government may call its next witness.