[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
MISSING WHITE HOUSE E-MAILS: MISMANAGEMENT OF SUBPOENAED RECORDS
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HEARINGS
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
MARCH 23, MARCH 30, MAY 3, AND MAY 4, 2000
__________
Serial No. 106-179
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
69-621 DTP WASHINGTON : 2001
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250
Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
David A. Kass, Deputy Counsel and Parliamentarian
Lisa Smith Arafune, Chief Clerk
Phil Schiliro, Minority Staff Director
C O N T E N T S
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Page
Hearing held on:
March 23, 2000............................................... 1
March 30, 2000............................................... 219
May 3, 2000.................................................. 485
May 4, 2000.................................................. 659
Statement of:
Heissner, Karl, branch chief for systems integration and
development, Executive Office of the President, Office of
Administration............................................. 511
Lindsay, Mark, assistant to the President and director of
White House Management and Administration; and Laura
(Crabtree) Callahan, Chief Information Officer, Department
of Labor................................................... 137
Lyle, Michael, director, Executive Office of the President,
Office of Administration................................... 514
Mills, Cheryl................................................ 665
Nolan, Beth, chief counsel to the President; and Dimitri
Nionakis, associate counsel to the President............... 769
Nolan, Beth, counsel to the President; and Robert Raben,
Assistant Attorney General for Legislative Affairs......... 262
Rabin, Robert, Assistant Attorney General for Legislative
Affairs.................................................... 627
Ruff, Charles................................................ 664
Salim, Yiman, Northrop Grumman Software developer, Lotus
Notes Group; Betty Lambuth, Northrop Grumman manager,
former member of the Lotus Notes Group, accompanied by
Larry Klayman, counsel, and Tom Fitton, counsel; Robert
Haas, Northrop Grumman systems administrator, Lotus Notes
Group; Daniel ``Tony'' Barry, computer specialist,
Executive Office of the President/Office of Administration,
accompanied by John Harden Young, counsel; Steve Hawkins,
Northrop Grumman program manager; John Spriggs, Northrop
Grumman senior engineer for electronic mail; and Sandra
Golas, Northrop Grumman senior software engineer, Lotus
Notes Group................................................ 22
Letters, statements, etc., submitted for the record by:
Barr, Hon. Bob, a Representative in Congress from the State
of Georgia:
Article dated March 24, 2000............................. 453
Cheryl Mills subpoena.................................... 706
Exhibit 6................................................ 560
Exhibit 7................................................ 108
Exhibit 60............................................... 465
Exhibits 3 and 4......................................... 114
Letter dated December 8, 1998............................ 407
New York Times article................................... 456
Statement dated January 30, 1998......................... 106
Burton, Hon. Dan, a Representative in Congress from the State
of Indiana:
Exchange of letters...................................... 6
Exhibit 48............................................... 672
Exhibit 81............................................... 490
Exhibit 82............................................... 518
Exhibit 92............................................... 500
Prepared statement of................................. 225, 505
Chenoweth-Hage, Hon. Helen, a Representative in Congress from
the State of Idaho:........................................
Exhibit 19............................................... 77
Exhibit 23............................................... 80
Exhibit 47............................................... 82
Exhibit 140.............................................. 728
Exhibit 141.............................................. 735
Exhibit 142.............................................. 737
Exhibit 143.............................................. 739
Ford, Hon. Harold E., Jr., a Representative in Congress from
the State of Tennessee:
Letter dated May 6, 1999................................. 691
The Hill newspaper article............................... 669
Haas, Robert, Northrop Grumman systems administrator, Lotus
Notes Group, prepared statement of......................... 36
Heissner, Karl, branch chief for systems integration and
development, Executive Office of the President, Office of
Administration, prepared statement of...................... 512
Lambuth, Betty, Northrop Grumman manager, former member of
the Lotus Notes Group, prepared statement of............... 32
LaTourette, Hon. Steven C., a Representative in Congress from
the State of Ohio:
Exhibit 56............................................... 52
Exhibit 80............................................... 431
Lindsay, Mark, assistant to the President and director of
White House Management and Administration, prepared
statement of............................................... 142
Mica, Hon. John L., a Representative in Congress from the
State of Florida:
Exhibit GR-2............................................. 123
Letter dated October 6, 2000............................. 397
Nolan, Beth, counsel to the President, prepared statement of. 265
Rabin, Robert, Assistant Attorney General for Legislative
Affairs, prepared statement of............................. 631
Salim, Yiman, Northrop Grumman Software developer, Lotus
Notes Group, prepared statement of......................... 25
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut:
Exhibit 1................................................ 601
Exhibit 61............................................... 419
Exhibit 62............................................... 282
Exhibit 63............................................... 603
Exhibit 139.............................................. 788
Waxman, Hon. Henry A., a Representative in Congress from the
State of California:
Exhibits 132 and 133..................................... 588
Letter dated May 3, 2000................................. 782
Minority Staff Report.................................... 363
Prepared statement of Paulette Cichon.................... 258
Wilson, James C., chief counsel, Committee on Government
Reform:
Exhibit 84............................................... 570
Exhibit 94............................................... 574
Exhibit 134.............................................. 576
Letter dated May 19, 2000................................ 639
MISSING WHITE HOUSE E-MAILS: MISMANAGEMENT OF SUBPOENAED RECORDS--DAY
ONE
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THURSDAY, MARCH 23, 2000
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:10 a.m., in
room 2154, Rayburn House Office Building, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Morella, Horn, Mica, Davis
of Virginia, Souder, Scarborough, LaTourette, Barr, Hutchinson,
Biggert, Ose, Chenoweth-Hage, Waxman, Mink, Maloney, Norton,
Cummings, Kucinich, and Davis of Illinois.
Staff present: Kevin Binger, staff director; James C.
Wilson, chief counsel; David A. Kass, deputy counsel and
parliamentarian; Mark Corallo, director of communications;
Pablo E. Carrillo and M. Scott Billingsley, counsels; Jason
Foster and Kimberly A. Reed, investigative counsels; Kristi
Remington, senior counsel; Robert Briggs, deputy chief clerk;
Robin Butler, office manager; Leneal Scott, computer systems
manager; Lisa Smith Arafune, chief clerk; Maria Tamburri,
assistant to chief counsel; Corinne Zaccagnini, systems
administrator; Caroline Katzin, professional staff member; Phil
Schiliro, minority staff director; Phil Barnett, minority chief
counsel; Kenneth Ballen, minority chief investigative counsel;
Kristin Amerling, minority deputy chief counsel; Cherri
Branson, Jon Bouker, Paul Weinberger, and Michael Yang,
minority counsels; Ellen Rayner, minority chief clerk; and Jean
Gosa and Earley Green, minority assistant clerk.
Mr. Burton. A quorum being present, the Committee on
Government Reform will come to order.
I ask unanimous consent that all Members' and witnesses'
written opening statements be included in the record, and
without objection, so ordered.
I ask unanimous consent that all articles, exhibits, and
extraneous or tabular material referred to be included in the
record, and without objection, so ordered.
I also ask unanimous consent that a set of documents which
may be used as exhibits in today's hearings, which have been
shared with the minority staff, be included in the record.
Mr. Waxman. Reserving the right to object.
Mr. Burton. The gentleman will state his reservation.
Mr. Waxman. Mr. Chairman, we're not going to object to
this, but I understand that the staffs are still going through
these documents to be sure that there are redactions that are
going to be important for privacy reasons, so, if the gentleman
would permit, I'd like to ask if he would amend his unanimous
consent request to have these documents released after the
staffs have had an opportunity to review them for redaction
purposes.
Mr. Burton. I think that that is in order, and without
objection we will do that. In fact, I think we have ``after
being reviewed for redactions'' in the statement, so I guess
there is no--without objection, so ordered.
I also ask unanimous consent that questioning in this
matter proceed under clause 2(j)(2) of House rule 11 and
committee rule 14 in which the chairmen and ranking minority
members allocate time to members of the committee as they deem
appropriate for extended questioning, not to exceed 60 minutes,
equally divided between the majority and the minority, and
without objection, so ordered.
Today we are meeting to hear testimony about the White
House's failure to produce documents to the committee. As I'm
sure everyone understands by now, there was a computer glitch,
an error. As a result, incoming e-mails at the White House
weren't recorded for a 2\1/2\ year period. They weren't
searched in response to our subpoenas. They weren't searched in
response to Justice Department's subpoenas. They weren't
searched in response to the independent counsel's subpoenas.
Now, some might say, ``So what? An error was made. What's
the big deal?'' That's the question I want to address in my
opening statement.
The big deal is not that a computer technician made a
mistake. Mistakes happen. They happen in my office and they
happen in every office. The big deal is how the White House
reacted to it.
They basically had two choices. They could face up to the
problem, tell the Justice Department and Congress what
happened, and get it fixed, or they could throw a blanket over
the whole problem, ignore it, and hope nobody would find out.
From the interviews we've conducted and the correspondence
we have received, it looks like they chose to cover it up. I
hope that by the end of this hearing we will be able to make a
better judgment.
Before I go any further into this e-mail problem, I want to
put this issue into perspective. This isn't the first time that
this committee has had problems with cooperation from the White
House. When we began our investigation into illegal fundraising
in January 1997, we sent the White House a document request.
They ignored it.
In March 1997, we sent them a subpoena. They refused to
honor it.
In May 1997, we came within days of holding the White House
counsel, Charles Ruff, in contempt of Congress for not
producing documents. Only then did they comply.
In June, Mr. Ruff sent us a letter certifying that they had
complied with our subpoena. Then, in October 1997, somebody
found out about the White House videotapes. Ten months after
our original request, a bunch of red-faced White House lawyers
had to turn over several hundred tapes of the President at
controversial fundraising events.
Their game plan was very clear: stall, delay, run out the
clock. And it wasn't just the White House.
The day after we approved our interim report, 2 years after
we started our investigation, 10 boxes of Democrat National
Committee documents magically appeared on our doorstep.
So, as you can see, there is a history here. And, by the
way, it didn't start with me. Before me, Chairman Clinger had
exactly the same experience.
Two-and-a-half years of e-mails--let's turn our focus back
to the e-mails. A group of Northrop Grumman employees runs the
White House e-mail system. In May or June 1998, they realized
that they had a problem. A server was mislabeled. Two-and-a-
half years worth of incoming e-mails were not properly
preserved. They weren't searched when subpoenas came in.
White House staff was informed. On Monday, June 15th, two
White House staffers called them into a meeting. We have
interviewed the Northrop Grumman employees who were at that
meeting. It was 21 months ago. They don't remember every
detail, as you might expect. Some remember one part of the
conversation, some remembered the other parts of the
conversation, but their accounts are basically consistent.
When the interviews were finished, two important things
emerged about that meeting: first, they were all told to keep
this problem secret; second, some felt intimidated. One
Northrop Grumman contractor recalls being told that there was a
``jail cell with his name on it'' if he told anyone. One woman
was afraid that her security clearance would be yanked and she
would never be able to work again. Another woman refused to
tell her boss what she was working on. She was almost fired.
She told her boss, ``I'd rather be insubordinate than go to
jail.''
They held secret meetings about the problem at a park and
at a Starbuck's Coffee place so they would not be detected.
These Northrop Grumman contractors are here today, and I
appreciate their being here today. They are going to testify on
the first panel. Obviously, this is going to be uncomfortable
for them. They are here under subpoena. They are not here
because they want to be. They are here because they have to be.
To each of you, I'm very sorry you are put in this
position, but it is important that we get your views and what
happened on the record.
I also want to thank the Northrop Grumman Corp. and their
attorneys. They have been very cooperative. They have given us
documents, they have made employees available for interviews,
and they have been very helpful.
Why the secrecy by the White House? Why was it so important
to keep this under wraps?
There were two White House officials involved in the
meeting. Laura Crabtree is one, Mark Lindsay is the other. We
tried to interview them. They declined to talk to us. We have
some pretty basic questions to ask.
Why was it so important that this information be kept
secret? What are their accounts with the meeting with the
Northrop Grumman employees? Who did they talk to when they
found out about the problem?
They have both been subpoenaed, and they are scheduled to
testify on the second panel. I'm sorry they refused to talk to
us, but we have questions and we'll ask them today.
Beth Nolan, the White House counsel, will testify on the
third panel. She wasn't the White House counsel in 1998, when
this problem came to light. She took the job last summer.
Regardless of who was the White House counsel, we have a
serious issue to deal with. The White House counsel's office
has known since some time in 1998 that they were not in
compliance with subpoenas from us, the Justice Department, and
the independent counsel.
They were not in compliance with our subpoena in the
illegal fundraising investigation. This computer problem began
in the summer of 1996. The second half of 1996 was a critical
time period during this scandal. We were never informed.
They were not in compliance with our subpoena and the
investigation of why the President freed 16 Puerto Rican
terrorists. We were never informed.
Let me read a passage of a letter we received from the
White House counsel's office on October 27, 1999. This was over
a year after the e-mail problem was discovered.
``We have been in the process of searching archived e-mails
for materials responsive to the committee's subpoena. Enclosed,
please find responsive documents.''
Now, how could they give us all the responsive documents if
they knew the e-mails were there but they hadn't gone through
them?
They were not in compliance with our subpoena in the Waco
investigation. We were never informed. Let me read a passage
from a December 3, 1999, letter.
``Due to the number of requests for information from
investigative bodies, the search of archived e-mail messages
has taken longer than expected. I anticipate that we should
complete the search by the end of next week. If we locate any
additional responsive materials, we will promptly provide them
to the committee.''
And yet, all of these e-mails that they knew about,
hundreds of thousands, possibly, were not reviewed.
It is pretty clear that if we didn't find out about this
problem independently, we were never going to be told by the
White House, nor was the independent counsel or people at the
Justice Department. Now, that's a big deal. Complying with
subpoenas is not optional; it's mandatory. The White House
counsel's office has an obligation to comply. If they can't,
they have an obligation to tell us why.
And it's not like we inundated the White House with
subpoenas. Not too long ago, a White House spokesman told a
bunch of reporters that we had sent them something like 700
subpoenas. Last year, I sent the White House a grand total of
two subpoenas, two.
And it's not just us. The White House received subpoenas
from the Senate, they received subpoenas from the independent
counsels, they received subpoenas from the Justice Department.
Were other people informed that hundreds of thousands of e-
mails were not reviewed?
These are the issues that we want to raise today with Ms.
Nolan.
Finally, we have a Justice Department witness appearing
with Ms. Nolan, Robert Raben, the Assistant Attorney General
for Legislative Affairs. As everyone knows, we have been
following the Justice Department very closely. We have been
watching every step of the way since the Attorney General
refused to appoint an independent counsel in the campaign
fundraising investigation.
What we have seen from the Justice Department has been very
discouraging. A search warrant for Charlie Trie's home was
quashed. The FBI wanted to go search his home and go through
its files because they thought some were being destroyed; yet,
that search warrant was quashed by the leaders of the Justice
Department, including Janet Reno.
The President was not questioned about foreign money
connections. The Vice President was not questioned about the
Hsi Lai Temple or foreign money connections. Democrats get
lighter sentences when Republicans get the book thrown at them.
When we interviewed the Northrop Grumman employees, we
realized that no one had been questioned by the Justice
Department about the missing e-mails. That was March the 7th.
This whole issue had been on the front page of the newspaper.
So I wrote a letter to the Attorney General. I asked them why
they weren't doing anything. It wasn't until after they got my
letter that the Justice Department and the Attorney General
contacted the first witness. Is that the way the Justice
Department works? Do they wait until we are on to them and then
they do something about it?
One thing that is of great concern to us is that the
Justice Department was on both sides of this issue. Justice
Department lawyers are representing the White House in civil
suits over the matter. They appear to be working with the White
House to delay production of these e-mails. At the same time,
the Campaign Finance Task Force should be trying to get them.
At this point, I don't think anyone has any idea what is in
these e-mails, but I get the impression that the Justice
Department really isn't all that interested.
When the Attorney General found out about the missing Waco
tapes, she sent U.S. Marshals to seize them from the FBI and
Louis Freeh. Now it looks like the White House hasn't complied
with the Justice Department's subpoenas, and nobody even asks
about them until I sent them a letter. I wonder why they didn't
send the U.S. Marshals over there like they did with the FBI?
That concludes my remarks, and I ask unanimous consent that
my two letters to the Attorney General be entered into the
record. Without objection, so ordered.
I've also exchanged letters with the White House counsel,
Ms. Nolan, and I ask unanimous consent to enter those in the
record, and without objection, so ordered.
[The information referred to follows:]
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Mr. Burton. I will now yield to Mr. Waxman for his opening
statements, then we will move forward with the first panel.
Mr. Waxman. Mr. Chairman, I am pleased you are holding
today's hearing. It will provide us an opportunity to explore
whether there was any wrongdoing in the attempt to coordinate
the automated records management system, known as the ARMS
system, with the Lotus e-mail network.
We are all aware that during the past few years many false
and reckless accusations have been made about this
administration and officials that work within this
administration. We should not repeat those mistakes today.
Instead, in evaluating the ARMS-Lotus interface, we must
investigate whether certain acts were the result of sinister
motives or simply routine mistakes.
Serious accusations, some involving potential criminal
conduct, have already been made about the ARMS-Lotus interface,
so it is essential that we do our best to clarify the record
and understand the facts, and then let the facts lead us to
conclusions, rather than start with conclusions and then find
out if the facts support those conclusions.
We have already learned, for instance, that no one in the
Clinton administration ever suggested that specific e-mails or
categories of e-mails be excluded from the ARMS system. That's
a fact.
We have also learned that no one in the Clinton
administration designed the system or had any role in creating
the ARMS-Lotus interface or the interface defect, and that's a
fact.
Moreover, we know that no one in the Clinton White House
even knew before June 1998, that some e-mails were being
excluded from the ARMS-Lotus interface, and consequently not
being submitted to Congress or the Department of Justice.
What else do we know?
We also have learned that the White House has provided
Congress with over 7,000 e-mails pursuant to congressional
requests. They have given us 7,000 e-mails, and some of those
e-mails were embarrassing to the White House, yet they
submitted those e-mails.
Some of these e-mails have been repeatedly used by the
chairman and other Republican leaders as evidence of White
House wrongdoing. The production of those e-mails would
seemingly put to rest the question that the White House was
trying to keep damaging information from the Congress. If they
were trying to do that, you wonder why they submitted e-mails
among the 7,000 e-mails that have been used against them.
Well, by the end of today--and this may be a long day's
hearing, but it is an important one--we will be in a better
position to answer three remaining questions.
First, did any White House employee make any improper
threat to any of the contract or subcontract employees of
Northrop Grumman?
Second, did anyone at the White House try to impede the
efforts to fix the problem created by a contract employee?
And, finally, why didn't the White House notify this
committee and other investigators when the ARMS-Lotus interface
problem was discovered?
These are important questions, and I hope we will get
answers to them.
We will likely receive conflicting testimony on whether
threats were made, so we will have to evaluate the credibility
of the witnesses on this point. We will also have to evaluate
what involvement, if any, the President, the Vice President,
and other senior White House officials may have had with this
issue.
From what we know now, however, it appears unlikely that
anyone at the White House tried to obstruct efforts to repair
the ARMS-Lotus interface, and I believe that Beth Nolan, who
will testify at the end of today's hearing, may have a
reasonable explanation for the delay in the White House's
notification of Congress about the ARMS-Lotus interface
problem.
I look forward to listening to today's witnesses. If it
appears that any wrongdoing has occurred regarding the ARMS-
Lotus interface, we should take appropriate action.
By the same token, however, if we should also be sure, in
finding the facts, that there is a reason to correct the record
if there is no evidence of wrongdoing, I hope that action will
be taken, as well.
Let's let the facts speak for themselves. Let's try to find
the facts as best we can. Where conflicting testimony may be
leading us in different directions, let us try to keep to this
issue of the ARMS-Lotus interface to understand what, if
anything, justifies a congressional hearing and leads us to
facts that will be useful in our ongoing investigation.
I yield back the balance of my time.
Mr. Burton. Thank you, Mr. Waxman.
I understand a vote has been called on the floor. I want to
apologize to our first panel, but, in order to have consistency
in the hearing, I think probably we ought to break real quickly
for a vote and ask all the Members to get back as quickly as
possible so we can get on with this, so we will stand in recess
and call the gavel.
[Recess.]
Mr. Burton. We will now welcome our first panel to the
witness table: Steve Hawkins, Robert Haas, Betty Lambuth,
Sandra Golas, Yiman Salim, John Spriggs, and Daniel Barry.
Would you please stand and raise your right hands, please?
[Witnesses sworn.]
Mr. Burton. First of all, I want to restate that I know
that you would probably be rather playing golf or working or
doing something else today. This is a very important hearing,
and we do appreciate your cooperation and in your being as
factual as is humanly possible.
Do any of you have opening statements you would like to
make? Ms. Salim, did you have an opening statement?
Ms. Salim. Yes, sir.
Mr. Burton. OK. You are recognized. Please pull the
microphone as close to you as possible. Thank you very much.
STATEMENTS OF YIMAN SALIM, NORTHROP GRUMMAN SOFTWARE DEVELOPER,
LOTUS NOTES GROUP; BETTY LAMBUTH, NORTHROP GRUMMAN MANAGER,
FORMER MEMBER OF THE LOTUS NOTES GROUP, ACCOMPANIED BY LARRY
KLAYMAN, COUNSEL, AND TOM FITTON; ROBERT HAAS, NORTHROP GRUMMAN
SYSTEMS ADMINISTRATOR, LOTUS NOTES GROUP; DANIEL ``TONY''
BARRY, COMPUTER SPECIALIST, EXECUTIVE OFFICE OF THE PRESIDENT/
OFFICE OF ADMINISTRATION, ACCOMPANIED BY JOHN HARDEN YOUNG,
COUNSEL; STEVE HAWKINS, NORTHROP GRUMMAN PROGRAM MANAGER; JOHN
SPRIGGS, NORTHROP GRUMMAN SENIOR ENGINEER FOR ELECTRONIC MAIL;
AND SANDRA GOLAS, NORTHROP GRUMMAN SENIOR SOFTWARE ENGINEER,
LOTUS NOTES GROUP
Ms. Salim. Good morning.
My name is Yiman Salim. I am a subcontractor working as a
Lotus Notes developer in the Executive Office of the President,
main contractor Northrop Grumman. I have held this position
since May 1998. I am a member of the Lotus Notes team,
basically responsible for the analysis, development, and
support of Lotus Notes applications.
I understand that the committee would like me to describe
the events surrounding the Mail2 problem, and I am appearing
here voluntarily at the committee's request to do so.
One of my first tasks at the EOP was to work on the upgrade
of Lotus Notes. During my work on this project in June 1998,
Bob Haas and I stumbled upon what we thought at the time was a
flaw in the records management, the scanner process. It was a
very technical typographical-type error committed by a prior
contractor before Northrop Grumman was retained.
We found, quite by chance, that inbound e-mail messages
were somehow not being picked up by the scanning process of the
records management system, called ARMS. The scanning portion of
ARMS is responsible for looking at the e-mail file and sending
inbound e-mail messages through several processes, ultimately
ending up on the VAX computer, where searches of those e-mails
by Government employees occurs.
Immediately after the discovery of this problem, we
reported our findings to our immediate supervisor, Betty
Lambuth, who directed us to put our findings in writing.
In the days that followed, it was determined that the
problem was specific only to the Mail2 server. The Mail2
problem, therefore, affected approximately 500 users, most of
whom worked for the White House. The problem affected only
those e-mails inbound to the White House from outside by way of
the Internet to Mail2 server users.
Outgoing e-mails sent from Mail2 users at the White House
were not affected and were records managed according to
established procedures.
The Mail2 server problem had originated some time during
October 1996, when the contractors prior to Northrop Grumman
built a new e-mail server called ``Mail2.'' When the
contractors personnel named the Mail2 server, they used an
upper-case ``M'' and lower-case letters for the rest of the
name. Following its creation, however, the individual mail
accounts on the Mail2 server were assigned the name ``MAIL2''
using all capital letters.
When the case-sensitive ARMS scanner process ran on the
Mail2 server to perform its comparison of the names, the
comparison failed, since the names did not appear in the exact
same case; therefore, none of those accounts from Mail2 were
scanned. Inbound e-mails were not sent to the VAX, and, as a
result, inbound e-mails were not records managed.
Outbound e-mails were automatically records managed without
the need for such scanning. That is why outbound White House e-
mails were not affected by this error.
A few days after the discovery of the problem, some time
between June 15 and June 18, 1998, Betty Lambuth, John Spriggs,
Sandy Golas, Bob Haas, and I were called into Laura Crabtree's
office for a private meeting.
My recollection is that in this meeting Laura Crabtree told
us that Mark Lindsay had instructed that we were not to discuss
the problem with anyone, including our spouses or our family.
We were told that the incident was considered sensitive, and
that we should take it very seriously.
I do not remember hearing the word ``jail,'' and I never
felt threatened. In my mind, this was simply a technical issue
that needed a technical solution.
My understanding was that this issue would remain with this
small group only temporarily until the Office of Administration
had a chance to manage the situation.
On June 19, 1998, 1 week after the Mail2 problem was
discovered, I left the country for 2 weeks on a pre-planned
vacation. After my return, I had little contact with the Mail2
issue except for attendance at some technical meetings
regarding the problem.
In the beginning of November 1998, the group met to discuss
a technical solution to the Mail2 problem. We focused on how to
stop the bleeding, which meant that we wanted to find a way to
properly manage inbound e-mails that entered Mail2 from that
point forward.
On November 22, 1998, John Spriggs and I executed a program
which artificially marked all unmanaged e-mails as record
managed on the 394 active users who were located on Mail2 at
that time.
After that was completed, inbound e-mails on the Mail2
server were, therefore, properly scanned by ARMS and were
records managed. All unmanaged e-mails that entered Mail2
between the inception of the problem in November 1998 became
part of a separate e-mail reconstruction project.
Several months later, in April 1999, I discovered another
problem in the records management system. I found that all
users with a first name that started with a ``D,'' such as
``Doug'' or ``David,'' were not being properly scanned by ARMS.
This problem affected not just Mail2 but all the Lotus mail
servers.
The problem was corrected on June 1, 1999, and after this
correction I created an audit agent that monitors all e-mail
accounts and reports in a timely basis if there are any records
management issues. This was done so that any future problems
would be detected and solved in a timely manner.
Mr. Chairman, that is my recollection of the events
concerning discovery of the Mail2 system error.
Thank you.
Mr. Burton. Thank you, Ms. Salim.
[The prepared statement of Ms. Salim follows:]
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Mr. Burton. Mr. Haas, did you have an opening statement?
Mr Barr. Mr. Chairman, may Ms. Lambuth give her statement
now?
Mr. Burton. If Mr. Haas has no objection, we'll go with Ms.
Lambuth.
Ms. Lambuth.
Ms. Lambuth. Thank you.
First of all, Mr. Chairman, I'd like to thank you and your
committee to have this opportunity to testify on the lost and
hidden e-mails that occurred in the Clinton-Gore White House.
When Ms. Salim and Bob Haas informed me, I did take this
information to my immediate supervisor in the White House,
which was Laura Crabtree.
Laura did understand the legal technicalities and severity
of these lost e-mails, and said that she would like to go talk
to Mark Lindsay.
Laura did come back to me and say that Mr. Lindsay had told
her to tell me and my staff that if any of us spoke about these
issues, about this particular project which we now named
``Project X,'' we would not only lose our jobs, we would be
arrested and we would be put in jail.
Ms. Crabtree then relayed those messages on to my staff,
which had been relayed to her by Mr. Lindsay.
I had also asked Ms. Crabtree, and basically said that, you
know, ``It's not that I dispute what you're saying. I would
like to hear this directly from Mr. Lindsay,'' and she agreed
that this was appropriate.
I later that day met with Paulette Cichon, who was also
aware of the situation. Paulette and I went upstairs and I met
with Mark Lindsay that afternoon quite late. Mr. Lindsay did,
in fact, reiterate everything that Ms. Crabtree had told me
that he had instructed her to tell, and that was if I or any of
my staff relayed this information to anyone--spouses; they
specifically named Steve Hawkins, who was the program manager
for Northrop Grumman; Jim Wright, who was the COTR for EOP--
that if we spoke to anyone that we--not just me, whoever
relayed the information, but that we would all lose our jobs,
we would be arrested, and we would be put in jail.
And this is quite significant, because if you are arrested
or you are removed from any agency--and we've gone through a
15-year security clearance--that our security clearances are
stripped from us. This is one of our fears, also, is our
security clearances are stripped. In this town, as you can
appreciate, that makes us unmarketable.
But basically, then, I do want you to understand that I was
a subcontractor to Northrop Grumman. I was the manager. I was
in on the proposal that Northrop Grumman did to EOP from the
very beginning. I was one of the key people in that proposal. I
did the orals and I had a great staff under me that was all
Northrop Grumman, except for Ms. Salim, who was with another
contractor. And we went forward to try to do our very, very
best on this particular project.
When I was informed later about some of the e-mails that
were included in the findings, it did come up that there were
e-mails from Lewinsky, from Filegate, had to deal with Vice
President Gore's campaign contributions, the trade seats, etc.,
so there were some very significant issues that were before the
Government at that time that were quite evident in the lost e-
mails.
We did meet, as was stated. We felt some pressure from
various people around. We did meet privately. We did go to the
park. We did sometimes go across the street to Starbuck's and
speak in generalities.
Somehow along the way, when we came out of one of the
meetings, Sandy was basically asked to do work on a project by
the COTR, and the COTR----
Mr. Burton. Excuse me. Would you identify Sandy? We don't--
--
Ms. Lambuth. Sandy Golas, Ms. Golas, who is also on the
panel. Sorry.
And he asked her to work on a particular problem. She
informed him that she could not at that time because we had a
special project. He asked her what it was. Going along with
what we had been told, she did not tell him.
It is my understanding that at that time she was taken down
to Steve Hawkins, who also asked her the same question. She
refused to tell and was threatened at that time by Mr. Hawkins
with loss of job and being fired also.
I was called at that time. I was in the doctor's office. I
was called by Mr. Haas. I talked to Sandy, who was extremely
upset. I've never seen Sandy that upset. She's a very level-
headed person. I spoke with Sandy. She told me what had gone
on. I told her just to hang tough, I would be back.
I at that time called Steve, talked to Steve, asked him
some questions, basically told him that if he had some issues
with this whole thing, he needed to address me, but I did not
want him interrogating my staff or putting them under undue
pressure.
I then left the doctor's office in Vienna, went back
downtown to EOP, addressed Steve. I found Steve. He basically
said he had nothing else to say to me, that I was
insubordinate, and that I could not refuse to tell him, and
things--that he would get me off the contract, which did take
place in July 1998.
Along with it having become apparent that the White House
was not going to proceed and let anyone know that these--that
this issue had occurred, there was definitely a stalling delay.
And the reason that I say that is that I kept asking for
meetings. I couldn't get meetings. I was asked to come up with
how much time was required for an individual to search these
records, what equipment would be needed. I gave all of these
facts, turned all of this over. And every time I asked what was
to happen on this, where we were going, I could get no answers.
Also, when it became very evident that I was going to be
removed from the contract, there was--Northrop Grumman had done
a reorganization. All my people were put out under different
managers, so, therefore, they could no longer work as a group
on this particular issue. They were approached by some of the
Government people to--that I needed to remain there because of
the knowledge, etc. That was turned down, which was their
privilege to do that.
However, in doing so, it has another significant
consequence, and that was the fact that, with no manager there,
they basically had no one to get direction from. By being
spread out amongst other managers now, they had no one person
to go to with these issues or that was aware of all of the
tasks that they had to do, so it made it a little bit more
difficult.
They had brought in another person, Jim Webster, from the
same company that Yiman works for, to take my place. I think
that there was, from what I had heard, that there was some
resistance to opening up to him, and I wasn't told until the
last day that I was there that I could even talk to him about
the project.
And Mr. Webster, to my knowledge, only stayed a few weeks
and then left the project, so they basically were with no
supervision, as far as having a manager.
Mr. Burton. I think, Ms. Lambuth, that we have pretty much
covered the basic problem, and we'll get back to you in just a
few minutes with some questions.
Ms. Lambuth. OK.
[The prepared statement of Ms. Lambuth follows:]
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[GRAPHIC] [TIFF OMITTED] T9621.021
Mr. Burton. Mr. Haas, did you have some comments that you'd
like to make?
Mr. Haas. Yes, sir.
Mr. Haas. Good morning. My name is Robert Haas. I was asked
to come before you today to talk about what has been called the
``Mail2 problem'' at the White House. I do so voluntarily.
I have worked at the Executive Office of the President for
the past 9 years. I have worked for Northrop Grumman since
November 1997, when they were awarded the contract to provide
computer information services at the White House complex.
I am a Lotus Notes administrator. Lotus Notes is the e-mail
system that is currently in use at the White House today.
Northrop Grumman administers the records management system
for certain agencies in the EOP.
On June 15, 1998, I was called to a meeting in the office
of Laura Crabtree, a civil servant for IS&T of the Office of
Administration. During the first part of the meeting, Mark
Lindsay was on a speaker phone addressing the group, which
included, in addition to myself, Ms. Crabtree, John Spriggs,
Sandy Golas, Yiman Salim, and Betty Lambuth.
Mr. Lindsay told us that the discovery of the Mail2 problem
was to be treated as top secret and that only Ms. Crabtree, Ada
Posey, and Mr. Lindsay, himself, could authorize the group to
talk to anyone else.
Mr. Lindsay specifically told us not to talk to Steve
Hawkins, the project manager for Northrop Grumman and our
ultimate supervisor on the site.
Mr. Lindsay hung up after about 5 minutes, and Ms. Crabtree
told me that I could not tell even Ms. Virginia Apuzzo anything
if she asked.
In a somewhat flippant way, I asked what would happen if I
did tell her or my wife, and Ms. Crabtree responded that there
would be a jail cell with my name on it.
Overall, my impression of the meeting with Ms. Crabtree and
Mr. Lindsay was very serious about their warnings. I'm not a
lawyer and did not know one way or the other whether there was
any basis for their threats, but I did take to heart their
instructions and tried to obey them carefully.
This is a brief summary of my recollections of the
discovery and the report of the Mail2 problem.
Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Haas.
[The prepared statement of Mr. Haas follows:]
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Mr. Burton. Mr. Barry, did you have comments you'd like to
make?
Mr. Barry. Yes, sir. I have a brief statement.
Mr. Barry. Mr. Chairman, I want the committee's record to
show that I am Daniel A. Barry and I have been employed by the
Executive Office of the President/Office of Administration
since June 1992. My current title is deputy data center
manager/electronics records manager, and I have responsibility
for the records that are received by the automated records
management system [ARMS], and for the overall system
administration of ARMS.
I am here today at the request of the chairman and would be
pleased to answer any questions that you may have about the
ARMS system.
Thank you.
Mr. Burton. Thank you, Mr. Barry.
Any others like to--yes, sir, Mr. Hawkins.
Mr. Hawkins. Good morning, sir.
My name is Steven Hawkins, former program manager for
Northrop Grumman at EOP.
I am here voluntarily before this committee to provide
facts pertaining to this matter today.
I wasn't going to give an opening statement; however, I
have to contradict several statements made.
As a manager under the Government contract, we have strict
rules of business etiquette to work by. Ms. Lambuth said she
worked directly for Ms. Crabtree. That is incorrect. Her
manager was Bob Whiteman. At no time was the records management
group unmanaged during the tenure of Northrop Grumman.
I would also like to say that Northrop Grumman employees
were called to unauthorized meetings because of Ms. Lambuth.
Repeatedly during the time of employment at EOP, Ms. Lambuth
was counseled by her manager, by me, and by her CEXEC
management for failure to comply with management directives,
and I find it appalling that she is trying to make allegations
that Northrop Grumman failed to manage the Notes group at any
given time. They had strict supervision. Mr. Bob Whiteman was
that manager. And throughout the contract, Mr. Whiteman and Ms.
Lambuth were both counseled to make sure that they followed the
terms and conditions of the Northrop Grumman contract with EOP.
I had a lot of difficulty in that area, especially with Ms.
Lambuth wanting to work very closely with Government employees
and failing to follow the Northrop Grumman program management's
directions and the term and conditions of the contract.
Thank you.
Mr. Burton. Any other opening comments?
[No response.]
Mr. Burton. Well, then, I will start--I'm sorry, Mr.
Spriggs, go ahead. You are welcome to make an opening comment.
Mr. Spriggs. Mr. Chairman and members of the committee, my
name is John E. Spriggs, Jr. Since September 1996, I have
worked on various contracts for the information systems and
technology division of the Office of Administration within the
Executive Office of the President of the United States. Since
December 1997, I have been employed by Logicon, a Northrop
Grumman company, and have served as a senior systems
integration engineer on their Executive Office of the President
contract.
The systems I helped maintain include but are not limited
to a dozen or so EOP electronic mail gateways and mail servers,
the EOP access verification systems, Internet e-mail servers
for both the President and the First Lady. I maintained certain
mail servers and gateways also for the Office of the Vice
President, news wire servers for the White House Press Office
and the EOP community, as well as three Lotus Notes records
management servers. I appear voluntarily and have voluntarily
testified before the Senate Governmental Affairs Committee on
these topics.
I do not have firsthand knowledge of all the facts in these
matters, and many aspects are technically complex and clouded
by the passage of time and the intervention of other events.
To the best of my knowledge, my actions and those of my
colleagues were properly supervised and directed. They were
law-abiding and within the scope of the existing Logicon
contract.
The Executive Office of the President of the United States
is, indeed, a challenging place to work. I appreciate more than
I can express in my remarks the dedicated service that is
rendered daily by the men and women who labor there, whether
they are volunteers, contractors, Civil Service employees, or
Presidential appointees.
Thank you, Mr. Chairman, and members of the committee.
Mr. Burton. Any other comments from any of the members of
the----
Mr. Klayman. Yes, Your Honor. May I make a statement,
insofar as my client was attacked, a brief statement of order?
Mr. Burton. I understand. Legal counsel can only confer
with their clients. We do appreciate your being here----
Mr. Klayman. But the point is that Northrop Grumman----
Mr. Burton. I understand, but she can speak for herself.
Mr. Klayman. All right. I'll let her speak for herself.
Mr. Burton. You can make the comment.
But let me, before we get into a discussion or a debate
about that--we could get to that when I ask you questions, Ms.
Lambuth, because I think we need to start the questioning now.
Do you have a comment you'd like to make, Ms. Golas?
Ms. Golas. My name is Sandra Golas. I am appearing here
voluntarily.
I manage the VAX systems at EOP. I handle all the records
management applications on the back side. I don't deal directly
with Lotus Notes applications; however, I have been involved
with the Mail2 issue, and I will answer any questions you have
for me.
Thank you.
Mr. Burton. Thank you very much.
Any other comments?
[No response.]
Mr. Burton. If not, we'll start the questioning. First of
all, let me make a comment. I understand there may be some
personality conflicts and some personnel conflicts and some
disagreements on management, and that is not a major concern
that I have as chairman and I think as most Members have, and
I'll let them express themselves when they get to questions.
My big concern is we subpoenaed documents from the White
House. The Justice Department subpoenaed documents from the
White House, as did the independent counsel. These documents
were important for a number of investigations--the so-called
``Filegate'' investigation, the travel office investigation,
Waco, the campaign finance investigation.
Now, this started, as I understand it, in September 1996,
when there was a glitch in the computer operation. The big
problem about the campaign finance investigation was going on
at that time, because there were questions about campaign
contributions coming in from China, Macau, Indonesia, Taiwan,
Egypt, South America, and elsewhere, and so these e-mails could
be very relevant to that investigation, as well as the other
investigations.
So I hope, during this conversation we're going to have--
and I hope it is more conversational and not acrimonious,
because, obviously, when you have a lot of people working in an
office you do have these problems, even in my office, you know.
I'm always right, the employees are always wrong, but that's
the way it goes.
But the facts we want are these: when did you find out that
there was a glitch? As I understand it, it was in 1998. There
was a meeting called. And what I want to ask you--and my first
question, and I would like to go right down the line, is: what
happened at that meeting with Ms. Crabtree and Mr. Lindsay on
the phone?
So those who were at that meeting, the first question I
want to ask you is--and I want your answer to be as succinct as
possible--what do you recall happening.
Mr. Haas, I think you have been pretty clear. We understand
that you said that Mr. Lindsay was on the phone, he said this
was top secret, and to keep your mouth shut about it.
Now, during that time that he was on the phone, there was
no threat made other than this was top secret and to be kept
quiet; is that correct?
Mr. Haas. That's correct, by Mr. Lindsay.
Mr. Burton. To your recollection.
Mr. Haas. That is correct.
Mr. Burton. Now, Ms. Crabtree, when you hung up the phone--
when he hung up the phone, you said, ``Well, what would happen
if I told my wife or somebody else,'' and she said?
Mr. Haas. That there could possibly be a jail cell with my
name on it.
Mr. Burton. And you recall that vividly?
Mr. Haas. Yes.
Mr. Burton. OK. Now, who else was in that meeting? Ms.
Golas, what do you recall about the meeting?
Ms. Golas. Most of what Bob remembers. I remember the
conversation. Mr. Lindsay was called and put on the speaker
phone, and I remember him talking to us and telling us it was
very important that we didn't take the information out of the
room, that we shouldn't discuss it with anyone.
After the conversation, I don't remember who said it, I do
remember the word ``jail'' being used, because I later relayed
that same statement to Steve.
Mr. Burton. When you relayed that to Steve, Mr. Hawkins,
tell me how you relayed it.
Ms. Golas. Well, he was trying to get me to tell him what I
was working on, and I was standing behind the table, and he
said, ``You're bordering on being insubordinate,'' and I said,
``If it's a choice of being insubordinate or going to jail, I
guess I'll have to be insubordinate.''
Mr. Burton. So you did feel a threat?
Ms. Golas. Somewhat, yes.
Mr. Burton. OK. Who else was in the meeting? Ms. Salim,
what do you recall?
Ms. Salim. I recall going into Laura Crabtree's office and
being told--Laura basically told us that she had reported this
problem to Mr. Mark Lindsay and to the director of OE at the
time, Ada Posey, and she told us that so far only them three
and us knew about this problem, and she asked us--I remember
very clearly and vividly her telling us not to discuss this
problem with anyone, to include our families and spouses, which
at that point that's what I found a little bit strange, which
being, you know, being told not to discuss this issue with
anyone.
I remember it being very serious. They told us it was a
sensitive matter.
Basically, my understanding was that we weren't to discuss
this problem with anyone, but my real understanding was that
they would--until they could manage the situation--this was my
understanding--that they would appreciate from us not to
discuss this with anyone, and my feeling was that, until they
could--until this could be managed or they could manage the
situation.
Mr. Burton. But they did ask you to--they indicated it was
top secret. And did you feel threatened?
Ms. Salim. I did not feel threatened. I did not feel
personally threatened by this. And I didn't----
Mr. Burton. Did they tell you it was top secret and to keep
it quite?
Ms. Salim. I don't remember the word ``top secret.'' I
don't recall the word ``top secret.'' What I do recall is being
told that this is a sensitive matter, and to keep it
confidential, basically not to discuss it with anyone.
Mr. Burton. Including your husband or anybody?
Ms. Salim. Correct.
Mr. Burton. So they did ask you not to even tell your
spouse or anyone?
Ms. Salim. Correct.
Mr. Burton. OK. So they did want you to keep a lid on it?
Ms. Salim. Correct.
Mr. Burton. OK.
Ms. Lambuth. Or Mr. Spriggs. We'll just go right down the
line.
Mr. Spriggs.
Mr. Spriggs. Yes, I was there. Similar to Yiman, I did not
hear the word ``jail.'' In the reference to not telling your
family, your wife, your spouse, my attention picked up more on
that, more of a concern about not talking about that with my
wife.
Another reference to--we typically have a lot of hallway
conversations. There are always people that are around that
come through our office. So, again, Ms. Crabtree was specific
about hallway conversations, keeping those under control, don't
talk about this, as well.
But, again, no--I don't specifically remember a reference
to jail, either.
Mr. Burton. Well, but you do recall--and I don't want to
put words in your mouth, but you do recall that they said this
is something that is very sensitive, should be kept secret, and
don't even talk to your spouse about it?
Mr. Spriggs. That's correct. Again, I--not the word ``top
secret,'' which you characterized or someone characterized.
Much more like what Yiman was saying, and my remembrance was
extremely sensitive. It was, ``Keep a lid on it until we find
out more about this.''
The major thrust, from my point of view, was that there was
a point of contact or points of contact that were specifically
mentioned to us. Any information that we were to get or give to
the Government was to be done through Betty Lambuth and Laura
Crabtree; that any instructions that we were to receive would
come through Laura and Betty to us. So that was our clear, if
you would, line of authority, as far as we knew. And again, the
specific reference to Steve Hawkins and also to Jim Wright were
made, so there was no----
Mr. Burton. They didn't want Mr. Hawkins or Mr. Wright to
know about it?
Mr. Spriggs. That's correct. Specifically, those people
they did not want us to talk to about it, so the names were
specifically mentioned.
Mr. Burton. OK. Well, from those of you who answered so
far, you are pretty consistent. They wanted you to keep this
very quiet. There's some difference as to whether or not there
was a threat of jail. Some of you remember it, some of you
don't. There is also some question about the word ``secret.''
But I think all of you had the same impression: this was very
sensitive and you were supposed to keep it quiet; is that
correct?
[Witnesses respond in the affirmative.]
Mr. Burton. OK. They've all answered in the affirmative.
Ms. Lambuth.
Ms. Lambuth. Yes.
Mr. Burton. Pull the microphone close to you, please.
Ms. Lambuth. Well, I obviously had more meetings on this
whole issue than the rest of my staff did in informing, and I
apologize if I said that Laura was my direct supervisor. What I
meant to say was she was my direct Government supervisor.
Mr. Burton. What we're really interested in, Ms. Lambuth,
is what went on in that meeting, what went on in the
conversations between you and Ms. Crabtree and Mr. Lindsay.
Those are the things that are so relevant to what we want to
find out, because those documents had been subpoenaed by
several agencies of the Government. They were obligated to give
them to us, and keeping them quiet is very serious, so we need
to know what was said by Ms. Crabtree and Mr. Lindsay.
Ms. Lambuth. Right. OK. I apologize, but what I was trying
to say was I had more than the one conversation that my staff
was in, so some of this is going to mold in together.
Mr. Burton. Sure.
Ms. Lambuth. But I was told by a couple of different people
that we were not to talk to anyone. The names of Steve, the
COTR, Jim Wright, were mentioned. We were not to talk to our
spouses, anyone other than those of us that already knew about
this particular project, and then anyone else that they gave us
permission to talk to.
They did tell me that if any of us did talk about this,
they basically threatened us that my staff would be fired,
would go to jail, would be arrested and go to jail, and that
was made very clear more than one time.
Mr. Burton. By whom?
Ms. Lambuth. Laura Crabtree relayed it first as being said
by Mark Lindsay. That afternoon when I went up, or evening,
when I went up and talked to Mark Lindsay, Paulette Cichon was
there. Mr. Lindsay reiterated the same thing that I had been
told by Laura Crabtree, so I was told by Laura for Mr. Lindsay
and then by Mr. Lindsay, himself.
Mr. Burton. Let me ask you this, now. As I understand it, a
number of you--maybe all of you--met at a park and talked about
these issues, or met at--what was that, Starbuck's?
Ms. Lambuth. Starbuck's.
Mr. Burton. Is this a commercial for Starbuck's?
[Laughter.]
Met at Starbuck's and talked about this. How many of you
met at those different meetings? Can you hold your hands up?
[Show of hands.]
Mr. Burton. So all of you that were involved in the
meeting. Why did you feel--and any one of you can answer. We'll
let each one of you answer--why did you feel it was important
to meet outside the White House to discuss these things at
either the park or Starbuck's? And you can just go right down
the line. Make your comments as brief as possible.
Mr. Spriggs. Again, we're talking in the June timeframe, so
there were basically--there's a lot going on at the Executive
Office of the President. There are--with the office arrangement
that we have, it is quite easy for people to be overhearing
conversations. My office is very much of a central place, if
you would, for people to come to. As I said in my opening
statements, I'm responsible for a lot of different things, so
people are always coming around me and my colleagues.
So if we're going to talk about this stuff and keep it
under wraps, then we have to be careful as to where we are. Ms.
Lambuth's office was quite small. Even closing the door, we get
into rather animated discussions at times, and so it became
obvious that we needed to get to a place where we could talk
about this.
Given that it was nice outside, there were opportunities
for us to go out to the park--only once, I believe it was,
maybe twice.
The question of Starbuck's, my colleagues, particularly Ms.
Lambuth at the time, drank Starbuck's coffee and she liked to
go over there and get it. I'm a McDonald's person, if I'm going
to get my plug in here. [Laughter.]
So I would go over to McDonald's and get my soda. And so we
would talk about this, again trying to keep some level head
about all of this getting away from the hubbub of activity that
we have within the office.
Mr. Burton. But the point is that you felt it was necessary
to go to some place private because of the level of concern
that was expressed to you by Ms. Crabtree and Mr. Lindsay?
Mr. Spriggs. That's correct. To amplify it just a little
bit more, there were actually meetings where we would go to the
second floor of the new Executive Office Building. That room
is--it's a very large room for divisional parties or
presentations by the divisional chief, or whatever. We would
actually go to that room. We would know basically who was
there. We would be able to talk openly. It was a large enough
room that, again, just the team of people being there. So we
felt fairly comfortable that we were keeping to the assignment,
which was to keep it under wraps and like that.
Mr. Burton. I think that--is that pretty much what all of
you recollect? Ms. Crabtree, do you recollect any more--or Ms.
Lambuth, I'm sorry, do you recollect any more?
Ms. Lambuth. No.
Mr. Burton. That's pretty much it?
Ms. Lambuth. That's basically it. When we would meet on the
second floor, sometimes, because the smoking area was on the
balcony outside, we had a lot of people staring in, and Jim
Wright happened to be one of those people that would look at us
with questioning eyes at some times, so we felt a little bit
better going off premise.
Mr. Burton. OK. Mr. Hawkins, I understand that you're one
of the most senior Northrop Grumman employees that were onsite.
When did you first become aware of this situation?
Mr. Hawkins. It was the--in June/July timeframe.
Mr. Burton. Of? June or July of?
Mr. Hawkins. 1998.
Mr. Burton. 1998.
Mr. Hawkins. Mr. Jim Wright, the COTR--contracting
officer's technical representative--the person who could
authorize Northrop Grumman to work on EOP. He came to my office
extremely displeased, and after 2 or 3 minutes of peeling him
off the ceiling, because he said that Northrop Grumman
employees were working out of the scope of the contract, I got
him to calm down, and then he gave me the fact that he walked
in Ms. Golas' office, and she basically said that she couldn't
tell Mr. Wright what she was working on, and he felt that that
was inappropriate, and he also felt that it was a violation of
our contract. Therefore, he asked me to investigate, and I told
him I would.
That was the first time.
Mr. Burton. Did--I'm going to yield to my colleague here in
just a minute, but did--when did you find out that they felt
like this was something--some felt that they were threatened
and some felt like that they had to keep a lid on this because
there might be repercussions?
Mr. Hawkins. Well, once I asked Ms. Golas to come to my
office, she was very nervous, to say the least, very fidgety.
And when I asked her what she was working on, she just totally
came unglued and told me that it was basically none of my
concern. I said, ``Well, you've told that to Jim, now you've
told that to me, and that's pretty serious in the government
contracting world, that--being cited for working outside the
scope of the contract. I needed to have that information.''
Well, I gave Ms. Golas 30 minutes to go back to her office,
think about her position. I did tell her the consequences would
be insubordination.
Within a short period after she left my office, the three
individuals being Sandy, Bob Haas, and John Spriggs, came to my
office. And that's when I first knew that there was a problem.
They felt very uncomfortable talking about it, Bob more so,
saying that he was threatened.
Mr. Burton. Could you use their last names, because----
Mr. Hawkins. Excuse me. Bob Haas.
Mr. Burton. Bob Haas? OK.
Mr. Hawkins. Felt that he was very threatened with what had
gone on. Mr. Spriggs, being very calm, he said he was
concerned.
All three employees I would characterize as being extremely
nervous in the situation.
At that time, they requested that they seek legal counsel
from Northrop Grumman, which we did, and----
Mr. Burton. OK. I think that pretty much answers where we
are.
Mr. LaTourette, I'll yield you the balance of my time.
Mr. LaTourette. Thank you very much, Mr. Chairman.
I want to reiterate, first of all, the chairman's remarks
that how pleased I think everyone on the committee is that so
many of you came voluntarily to this hearing.
I was at a meeting yesterday with Senator John McCain, who
until recently was running for President, and he was making
some observations. As you know, he is a champion of campaign
finance reform, and he was making some observations that he was
glad that the Vice President of the United States, Mr. Gore,
was now a discipline of campaign financing reform and has
learned his lessons from experiences that occurred out of the
Buddhist Temple fundraiser in California.
But he went on to say--and something that struck me--was
that in order to prove that reformation, perhaps the Vice
President should call for a complete independent review of the
campaign fundraising abuses of the 1996 election season.
The word ``independent'' struck me, because in this case
the subject of this hearing--as the chairman said, you had the
Justice Department on both sides of the issue. They should be
interested in these e-mails on the basis of all of the
subpoenas that went to the White House, but they are also
defending in civil litigation against the production of these
e-mails.
So, since that request hasn't been forthcoming, this
committee and other committees of the Congress, we sort of slog
along, and we don't always get the best reputation, and the
reason for that is that people come before the committee and
they supply information to the committee about what they've
seen or what they've heard or what they've experienced. We
schedule a hearing. The chairman usually lays out in his
opening remarks what the hearing is going to be about, and then
the hearings don't always live up to their expectations because
people leave the country, some people die, records disappear,
and a couple years later they show up on coffee tables in
people's houses and we can't figure out how that happens.
And then that invariably leads the members of the minority,
particularly our distinguished ranking member, to say something
like, ``Here we go again.'' And my favorite in the last couple
of areas was something along the line that the chairman was
wrong that Mr. Wang said about Mr. Huang, just because of its
alliterative quality, if nothing else.
And so I'm glad you are all here, but there are some
discrepancies in what it is you've presented to us. I would
like to start with those, and, Ms. Lambuth, I'd like to start
with you.
I have been supplied with a--I believe, an affidavit that
you've executed, and I want to read you a couple of paragraphs
and see if you still affirm to that today, and then it involves
a couple of your cohorts here, Mr. Haas and Mr. Barry, in
particular.
I'd like to read you this paragraph. ``A contractor from
Northrop Grumman, whom I supervised and who examined this group
of e-mails, told me the e-mails contained information relating
to Filegate, concerning Monica Lewinsky, the sale of Clinton
Commerce Department trade mission seats in exchange for
campaign contribution, and Vice President Al Gore's involvement
in campaign fundraising controversies.''
Did you attest to that under oath somewhere?
Ms. Lambuth. Yes.
Mr. LaTourette. And do you still stand by that today?
Ms. Lambuth. Yes, I do.
Mr. LaTourette. OK. And the contractor for NG that you
supervised, is that Mr. Haas?
Ms. Lambuth. Yes.
Mr. LaTourette. Mr. Haas, after this Mail2 problem was
determined--and, basically, as I understand it, a server was
off-line and not being subject to capture in the ARMS system;
is that--so e-mails coming into the White House weren't being
captured by the ARMS system on this mislabeled, or you had
small type mailed to as opposed to----
Ms. Lambuth. That's a simplistic----
Mr. LaTourette. Well, I'm a simplistic kind of guy, and so
you're going to have to bear with me.
So was Mr. Haas tasked with the responsibility, after this
problem was discovered, of performing a manual search of these
tapes?
Ms. Lambuth. Yes. He was actually tasked with a couple of
different things. One thing was we were trying to determine the
number of messages that were involved and how much time was
going to be required to do that.
The other thing that we had to try to figure out was, since
we were being--in this contract we were supposed to support all
messaging, all of the ARMS, etc., plus some other duties that
Bob had, that how much time this would take so that taking him
away from some of the other duties--who we could transfer those
to, amount of time, etc. But yes, he did do some searches.
Mr. LaTourette. OK. But my specific question has to do
with: is it your recollection that you were informed by Mr.
Haas that the e-mails contained in these misdirected Mail2
servers contained information or e-mails or documents relating
to all of these----
Ms. Lambuth. Yes.
Mr. LaTourette [continuing]. Ongoing investigations of the
U.S. Congress.
Mr. Haas, I turn to you now, sir. Did you have a
responsibility to go through and search the backup tapes that
have become the subject of this hearing?
Mr. Haas. First of all, let me make it clear I have nothing
to do with the backup tapes.
Mr. LaTourette. OK.
Mr. Haas. I believe what Ms. Lambuth is referring to me
searching was the mail servers and the current mail files that
existed on those servers at that time.
I was charged with one task of finding all the iterations
of people that had not been managed during that period of time,
once we figured out what the failure was.
And, upon doing that, I was to open every mail file, go to
a particular view which held those documents in a single view,
write down account, and try to find the date of the oldest
document in each person's and present that list. It was a list
of some 525 mail files that were involved at that time.
Shortly after I got in the middle of this--it was taking
several weeks to go through, because I was manually doing it
with my eyes and my fingers--I was asked to look in a couple of
specific mail files for particularly Monica Lewinsky was the
sender. And upon finding----
Mr. LaTourette. Who gave you that instruction?
Mr. Haas. Every instruction I ever received was from Betty
Lambuth.
Mr. LaTourette. OK.
Mr. Haas. That was the agreement.
Mr. LaTourette. OK.
Mr. Haas. Anyway, I found a large cache of documents in one
mail file, and I think four documents in another mail file. I
then notified her of that.
At no time, other than I was asked to test two documents
from the Monica Lewinsky cache to verify that the anomaly Mr.
Barry had reported during the original Monica search--he stated
he saw incoming--it appeared to be a conversation, but they
only had the one half of it. So we took a trial time. They
could tell me exact time of day on a particular day, and I
looked in that cache and found the corresponding replies
outbound--I mean, sorry, we had the outbounds but not the
inbound. And I found the corresponding.
So I looked at two documents of the Monica Lewinsky, just
to verify there was a conversation going on and here was the
other half.
At no time did I look at any other documents in any other
mail files, nor have I ever mentioned that there was any
involvement with Filegate or any other document. It is my
practice, as a systems administrator there, to never read the
mail from other people because it is detrimental to my job, my
sanity, if you will, to do that type of activity, and it's not
within the guidelines of my job to do. I don't need to read
your mail to fix your mail file.
Mr. LaTourette. I would hope not.
And so, Ms. Lambuth, that conflicts with your recollection
of the events? Is that a fair observation?
Ms. Lambuth. Yes, that does conflict.
Mr. LaTourette. OK.
Going back to you, Ms. Lambuth----
Mr. Burton. Can I followup just 1 second.
Ms. Lambuth.
Ms. Lambuth. Yes, sir?
Mr. Burton. Can you elaborate for Mr. LaTourette and the
committee exactly what made you believe that there were sale of
trade mission seats that the Vice President was involved in,
campaign fundraising, and so forth? Can you get into that in
some detail, as quickly as you can? Because if there is a
conflict here, we need to resolve it. We need to find out, you
know, if somebody is either misinformed or has forgotten.
Ms. Lambuth. Right.
First of all, Bob is right. We do not read anybody's e-mail
message. I want that on the record. But we do find certain
information when we do searches. And there are other people
that basically were also told that there were records with
Filegate, the trade mission seats, Vice President Gore's, etc.,
but--and Monica Lewinsky. And Bob was asked to search at one
time specifically for Monica Lewinsky.
To the best of my knowledge, as I reported before, I was
told that there were e-mails in there that was not only from
Monica Lewinsky, but the trade, the campaign contributions, and
various other things. And we--this can also be verified by Ms.
Hall, and Ms. Hall is here in the room--that she was also told
this.
Mr. Burton. I'll let Mr. LaTourette----
Mr. LaTourette. If I can. I mean, we talked to Mr. Haas.
He's here. So where else did this information come to you that
you're now describing for us? How do you know this to be so? In
other words, what you're telling us and what you've sworn to in
an affidavit under oath, how do you know this to be so?
Ms. Lambuth. To the best of my recollection, this is what I
was told.
Mr. LaTourette. By?
Ms. Lambuth. By Mr. Haas.
Mr. LaTourette. OK. I then want to go to another paragraph
in your affidavit, and that is that, ``The Clinton White House
considered but did not call Daniel A. Barry--'' and that's the
gentleman almost at the end of the table.
Ms. Lambuth. Correct. Yes.
Mr. LaTourette [continuing]. ``Back from vacation to talk
to him about Project X.''
This was called ``Project X,'' I guess, at some time?
Ms. Lambuth. Yes, It was.
Mr. LaTourette. And then the Mail2 server reconstruction
project was called ``Project X?'' Is that a fair statement?
Ms. Lambuth. This whole mail issue was Project X.
Mr. LaTourette. All right. And, specifically, there was a
discussion to maybe call him back from vacation, because he was
anticipated to be giving testimony or deposition for somebody--
Congress or somebody else----
Ms. Lambuth. Right.
Mr. LaTourette [continuing]. But they decided against that?
Ms. Lambuth. Yes. We were--it did come up in the
conversation. The Government----
Mr. LaTourette. With who, if you could, just so we know
who--what conversation did it come up with? Who was doing the
talking? Were you there?
Ms. Lambuth. I was there.
Mr. LaTourette. And who was talking?
Ms. Lambuth. And Ms. Crabtree.
Mr. LaTourette. OK.
Ms. Lambuth. I do not remember whether Mr. Lindsay was
there or not on this particular one, but there was another
Government official there. And there was some discussion about
whether they should get Mr. Barry back off of vacation, because
he was going forth to do testimony--and what I was told or what
I heard was congressional testimony--relating to ARMS. And they
didn't know whether to get him back, inform him of what had
been discovered or not, and they would come up with a decision
on that.
It was later told to me that they, in fact, chose not to
tell Mr. Barry.
Mr. LaTourette. OK. And you go on to say that, ``As a
result, Mr. Barry did not have relevant information about the
missing e-mails whenever he presented testimony to whomever he
was----''
Ms. Lambuth. That's correct.
Mr. LaTourette. That's your belief?
Ms. Lambuth. Yes.
Mr. LaTourette. Mr. Barry, let me turn now to you.
I have a declaration that you gave, apparently in a civil
action called ``Alexander v. the FBI, et al.,'' and that
declaration is dated and signed by you on July 9, 1999. Do you
recall giving such testimony or such a declaration?
Mr. Barry. Yes, I do.
Mr. LaTourette. And, specifically, you were being asked to
give information because you are the computer specialist in the
EOP that has--are you the supervisor of the automated retrieval
system or the ARMS program?
Mr. Barry. I'm the program manager of the ARMS system.
Mr. LaTourette. And, specifically, in paragraph four--and
it's marked exhibit 56. I don't know if you have that with you,
but would you like a copy of it?
[Exhibit 56 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.034
[GRAPHIC] [TIFF OMITTED] T9621.035
[GRAPHIC] [TIFF OMITTED] T9621.036
[GRAPHIC] [TIFF OMITTED] T9621.037
Mr. Barry. Yes, please.
Mr. LaTourette. I don't want to trick you.
Could somebody give him exhibit 56?
Let me read you paragraph four, and then, if you need to
see the thing, we'll just take a minute and you can answer the
question. But in paragraph four, as I reviewed it, it looks
like you were giving testimony in a U.S. district court for the
District of Columbia relative to the ARMS system and the
retrieval of and reconstruction of e-mails, but nowhere in
there, at least on July 9, 1999, do you talk about the fact
that there is this whole body on the Mail2 server that is out
there.
I suppose, in this lawsuit, you are being asked--I think
this is the Filegate lawsuit, if I remember correctly----
Mr. Barry. I believe that's correct.
Mr. LaTourette. OK. But let me--can somebody take him my
copy, maybe, so we don't waste so much time? Thank you.
I was referring to paragraph four, which is a specific
reference to the ARMS system and the reconstruction of e-mails.
Were you aware in July 1999 of this file--or this Project X or
the fact that we had a problem with the Mail2 server? I assume
you were, since you found that----
Mr. Barry. Yes, I was.
Mr. LaTourette. OK. Why is it, then, that, in response to--
were you subpoenaed in this proceeding to give a declaration?
Mr. Barry. Actually, I'm not sure. I don't know if I was or
not.
Mr. LaTourette. But, regardless, you gave testimony under
oath----
Mr. Barry. Right.
Mr. LaTourette [continuing]. In lieu of showing up, I
guess. And I would assume that the inquiry was whether or not--
well, it has to do with the Filegate, that whole business about
were FBI files from former Bush White House employees were
ordered up by a bar bouncer from Pittsburgh, but nobody ever
looked at them because they were kept in the refrigerator, or
whatever--there was testimony.
But I assume that the question was whether or not there
were any missing e-mails in the ARMS system or any records of
the EOP that could be retrieved relative to that issue. Isn't
that what they were asking you about?
Mr. Barry. No. I don't think so. My whole involvement with
the Alexander case, which is what I had known it as--where I
had given--actually, this is the third declaration that I had
given in this case, and I gave a deposition in this case, as
well.
To me, the questions that I was being asked and the
declarations that I was giving have all got to do with
searching of e-mail, what was searchable, how it could be
searched, how long it would take to search it, that type of
thing, and particularly ARMS system. It all focused on the ARMS
system, because that's what I do.
Mr. LaTourette. OK.
Mr. Barry. And it also--it focused around the
reconstruction project, which had to do with reconstructing e-
mail from the system that we had prior to the ARMS system going
on line, which was the all-in-one system, and I was the project
manager on that reconstruction project, as well.
And so, to me, my involvement, like I said, was, you know,
how difficult it is to search, how searches can be conducted,
how long it takes, what kind of searches we can do, and a
status report on the reconstruction effort. That was all it had
to do with, my involvement.
Mr. Burton. My time is expired. We'll get you some more
time later.
Mr. LaTourette. Thank you very much.
Mr. Burton. Mr. Waxman.
Mr. Waxman. Thank you very much, Mr. Chairman.
The origin of this hearing seems to have been a February
15, 2000, story in the Washington Times. The headline in the
story is, ``White House accused of cover-up.'' The first
paragraph reads as follows: ``The White House hid thousands of
e-mails containing information on Filegate, Chinagate, campaign
finance abuses, and Monica Lewinsky, all of which were under
subpoena by a Federal Grand Jury and three Congressional
committees, a former White House computer manager says.''
That's the opening paragraph. It's a powerful accusation.
And I want to begin my questioning by asking some questions
about this accusation.
The issue we are examining today involves what happened to
a subset of White House e-mails. As I understand it, during a
2-year period, from 1996 to 1998, e-mails that were sent to the
White House or about 500 White House employees from individuals
outside the White House were not captured by the White House
data retrieval system, called ARMS. Apparently, this was caused
by a technical defect in the ARMS-Lotus interface in the White
House computer system.
So my first question is whether anyone on this panel thinks
that the White House deliberately designed the ARMS-Lotus
interface so that incoming e-mails would not be captured.
Mr. Barry, let's start with you. Let's hear from everybody
in answer to this question.
Mr. Barry. I'm not sure what the question is.
Mr. Waxman. My question is, do you think the White House
deliberately caused the computer problem? And did the White
House deliberately design the ARMS-Lotus interface so that
incoming e-mails wouldn't be captured?
Mr. Barry. No. No to both. My opinion is no.
Mr. Waxman. Mr. Hawkins.
Mr. Hawkins. I have no comment on that.
Mr. Waxman. OK. Ms. Golas.
Ms. Golas. I don't believe so, sir.
Mr. Waxman. OK. Mr. Haas.
Mr. Haas. No. I don't believe so, either.
Mr. Waxman. Ms. Salim.
Ms. Salim. No, sir. I don't believe so. And I would like to
add something to the fact. The root of the problem was on the
ARMS scanner scanning process.
Mr. Waxman. Let me interrupt you, because I'm going to get
to those things, but I just want to get certain points
responded to.
Do you think the White House caused this problem, and did
they design the system so that they wouldn't be able to
retrieve some of these e-mails?
Ms. Salim. No, sir.
Mr. Waxman. OK. Mr. Spriggs.
Mr. Spriggs. No, sir.
Mr. Waxman. Ms. Lambuth.
Ms. Lambuth. I don't think there's any way to really know
that.
Mr. Waxman. Well, do you know whether the White House
designed the ARMS-Lotus interface?
Ms. Lambuth. That was before I was there. I don't know.
Mr. Waxman. So you don't know one way or the other?
Ms. Lambuth. Right.
Mr. Waxman. OK. I'd like to know your understanding about
this computer problem, whether it was caused by private
contractors or the White House.
Mr. Barry.
Mr. Barry. Well, I don't think it was deliberately caused
by anybody. It was----
Mr. Waxman. Nobody seems to say that it was deliberately
caused by--well, I asked about the White House, and nobody on
this panel said they thought the White House deliberately
caused it.
Now, there was a computer problem. It was caused by
something--an error, or maybe something intentional. If it
wasn't caused by the White House, was it caused by private
contractors?
Mr. Barry. Well, the Notes-ARMS interface was developed by
a Government contractor. It was not developed by Government
staff, to the best of my knowledge.
Mr. Waxman. Well, in a cover-up, people usually try to
destroy incriminating evidence.
Mr. Barry, were you ever directed to destroy any of the
missing e-mails by anyone at the White House?
Mr. Barry. No.
Mr. Waxman. Ms. Salim, were you ever directed to destroy
any of the e-mails?
Ms. Salim. No, sir.
Mr. Waxman. What about--did anybody on the panel want to
tell us that they were instructed to destroy the e-mails?
[No response.]
Mr. Waxman. The panel seems to all be shaking their head in
the negative.
In fact, I understand the----
Mr. Klayman. Mr. Waxman, please listen to my client.
Mr. Waxman. Ms. Lambuth, do you have some--were you ever
directed to destroy any e-mails?
Ms. Lambuth. No, I was never directed to destroy e-mails,
but I know that there were 6 months of the e-mails--backup on
the e-mails that were overwritten.
Mr. Waxman. OK. Now, in fact, I understand that not only
were none of you directed to destroy e-mails, but in 1998
Northrop Grumman was directed to make backup copies of all the
e-mails so that they would be preserved.
Mr. Barry, can you describe how this occurred?
Mr. Barry. Well, I'm not really sure what incident you're
referring to, but there are backup tapes of all of the mail
servers for some period of time. Nobody is really sure what the
period of time is or what exactly the tape situation is because
an inventory has to be done of the tapes.
Mr. Waxman. But is it accurate to say that Northrop Grumman
was directed to make backup copies of all the e-mails so that
they would be preserved?
Mr. Barry. I don't know that.
Mr. Waxman. Does anybody know the answer to that? Mr. Haas?
Mr. Haas. The only backup that I--that was directed to
Northrop Grumman that I'm aware of outside of the normal daily
backup that's run in an automatic format was prior to us, as we
refer to ``stopping the bleeding,'' when we set the switches
back on e-mail so we could start capturing e-mail properly
again. We made a specific backup of all the mail servers for
the purpose of preserving the way it was before we set the
switches so we could get back into the ARMS business, if you
will, 5 minutes after that was done. That was the only
specifically backups that were ordered to be done, and they're
done by a server group, none of which are present today.
Mr. Waxman. So once somebody found out there was a problem,
you were told to see if you could do a backup system to correct
the problem?
Mr. Haas. It's not a backup of the mails, it's a computer-
based backup where you just back up the whole disk drive in
case of catastrophic events you can restore. We did not back up
mail in the sense of mail messages. We backed up the computer
disk drives that the mail is on.
But, again, that was a specific incident that was done as a
preservative to the information so that we could go on and
reset and start doing ARMS properly after we had--so we're
preserving that. That's two specific sets of tapes that were
set aside as part of that inventory they refer to. Any other
backups are on a normally, daily basis, and whether they passed
or failed successfully, I have no idea.
Mr. Waxman. Although it appears evident from all your
testimony that the White House didn't cause the e-mail problem,
and no one has said that the White House sought to destroy any
e-mails, there was a problem with the ARMS-Lotus interface that
may have resulted in e-mails not being provided to
congressional and Federal investigators, so I want to find out
about the extent of that problem.
When people read articles like those in the Washington
Times, they may get the impression the White House has withheld
all e-mails from Congress and Federal investigators. In fact,
the members of this committee know this simply isn't true. The
White House has, in fact, turned over thousands of e-mails to
Congress. Some of them have been seized on by Chairman Burton
and others as serious evidence of wrongdoing.
So I'd like to get a sense of what e-mails we're talking
about when we say that certain e-mails were not captured by
this ARMS-Lotus interface. Are we talking about most White
House e-mails, or are we talking about only a small subset of
the e-mails?
Mr. Barry, I'd like to draw upon your expertise with
computer systems in the Executive Office of the President and
to ask you to explain the scope of the problem to me.
To start with, let me ask you about timeframes. The ARMS-
Lotus interface problem was in existence from roughly August
1996 to November 1998; isn't that right?
Mr. Barry. That's my understanding. Yes.
Mr. Waxman. And during that roughly 29-month period, how
many people were affected by Mail2 problems?
Mr. Barry. I'm not exactly sure, because I don't work on
the Notes side of things, but, from what I've heard, it's
somewhere between 400 and 500 users.
Mr. Waxman. Now, with respect to those people, the Mail2
problem just prevented incoming e-mail correspondence from
being stored in the ARMS; isn't that right?
Mr. Barry. That's correct, incoming external mail. I think
there's a key difference there. Any internal mail going to
those people would have been captured in ARMS.
Mr. Waxman. So we're talking about incoming e-mails, and
those are only e-mails from outside of what, the White House?
Mr. Barry. Outside of the White House e-mail system,
correct.
Mr. Waxman. And that means that an e-mail that was written
by someone else at the White House or the National Security
Council, all that would have been saved by the ARMS system;
isn't that right?
Mr. Barry. Yes. Any mail going to these 400 or 500 users
from the Notes system within the EOP--actually, it's not the
White House, it's the Executive Office of the President's
system--would be captured in ARMS.
Mr. Waxman. So all the internal e-mails would have been
searched in responses to subpoenas and other document requests
and provided to this committee and the other investigators?
Mr. Barry. That's correct. And also I'd like to point out
that external mail going to one of these particular 400 or 500
users that was CC'd or BCC'd to a non-affected 400 or 500 users
would also have gone to ARMS.
Mr. Waxman. OK. I understand that you regularly track the
number of documents that get put into ARMS and that you went
back and looked at what happened after the Mail2 problem was
fixed prospectively. Now, if the Mail2 problem was preventing
lots of e-mails from getting into ARMS, you would expect to see
a significant increase in the documents being put into ARMS
after the problem was fixed, so let me ask you, Mr. Barry, did
you see any increase after the November 1998, fix?
Mr. Barry. Well, there's a couple of points that need to be
made, I think. I had been tracking all of the records that go
into ARMS, the numbers of records, by month and by agency since
1993. I have all the information all the way back to 1993. And
I keep a spreadsheet by month by agency on all of that
information, and I remember--I wasn't involved in any of the
meetings that the rest of the panel were talking about until
July 6, 1998, and I remember at--I was involved in a series of
technical meetings for about a week-and-a-half after July 6th,
and I remember--I believe it was Mr. Haas--I had asked the
question----
Mr. Waxman. Let me ask you to respond to my question.
Mr. Barry. OK. Sorry.
Mr. Waxman. When you looked at all these e-mails and kept
track of them, the system was fixed prospectively. If there
were a lot of e-mails not going into the system before it was
fixed, you would expect to see a big jump in the number of e-
mails after it was fixed. Was there a big jump in the number of
e-mails after it was fixed?
Mr. Barry. Well, there was a jump, because we have a normal
increase in--there's a growth series in e-mail. But, from what
the analysis that I have done, there was an increase from
November to December, which is what you would expect, but it
wasn't as big as I had expected, given what I had been hearing.
Mr. Waxman. Did you reach any conclusion about that?
Mr. Barry. I reached the conclusion that was in my gut to
begin with, that yes, we had a problem, and it obviously
affected some number of e-mails, but it wasn't as big as the 10
percent number that I had been given or that I had been led to
believe.
Mr. Waxman. Let me just again review what we're talking
about. If it's an e-mail that was sent from anybody within the
White House or Executive Office Building or White House agency,
those agencies covered by the system--if it was anything sent
by anybody there, that would have been picked up. If it was an
e-mail internally from one person to another within the system,
that would have been picked up.
What we're talking about were e-mails from outside of the
system to somebody in the system, but even if that were the
case, and one of those e-mails were sent to somebody inside,
and there was a carbon copy or copy directed to somebody else,
then that would have been picked up, as well, in the ARMS
system, wouldn't it?
Mr. Barry. That's correct.
Mr. Waxman. OK. And if the recipient replied to this e-mail
that was received, wouldn't that whole reply and the original
e-mail get picked up in the ARMS system?
Mr. Barry. If the user had done a reply with history, yes,
it would.
Mr. Waxman. So there are several ways that e-mails that
were not put into the ARMS initially ended up in the system
eventually. What's more, even if the e-mail wasn't put into
ARMS, it may still have been provided to our committee or
whoever else was asking for documents.
Now, when White House counsel Beth Nolan testifies this
afternoon about how the White House responds to subpoenas,
she'll tell us that, in addition to searching ARMS, they asked
people in the White House or the EOP, the Executive Office of
the President, to search their own computers for responsive
material. So any e-mails that were saved by the individual
recipients should have been provided, even if they were not in
the ARMS. Any e-mails from sources that had been subpoenaed--
like if somebody is looking for an e-mail from the Democratic
National Committee to somebody in the White House, well, the
Democratic National Committee had been subpoenaed for all their
e-mails, so that would have gotten into the submissions to the
independent counsel, all the investigating committees and
agencies.
It appears that we're talking about, in terms of missing e-
mails, only a narrow sliver of the total number of White House
e-mails.
Mr. Barry, do you agree with that?
Mr. Barry. I'm not sure anybody can really tell for sure,
without going back and actually looking at the stuff. But, from
the numbers that I have in front of me, it wasn't as big a
problem as I had been led to believe in the early days.
Mr. Waxman. Now, the Washington Times article says that the
e-mails that were not provided to congressional and Federal
investigators involved Monica Lewinsky, campaign finance
issues, other alleged White House scandals, so I want to ask
this panel what you know about the content of the missing e-
mails. And, as I ask you these questions, there is an important
distinction to keep in mind. One issue is whether the e-mails
were captured by the ARMS system, and I believe this is called
being records managed. But a second and distinct issue is
whether the e-mails were turned over to investigators.
It is possible that some e-mails may not have been in the
ARMS but could have been turned over to investigators as a
result of other types of e-mail searches.
Mr. Haas, I understand that you conducted a search to
determine what kind of e-mails were not being records managed.
By this, I mean you conducted a search to see what kind of e-
mails were not being captured by ARMS.
My understanding is that your search involved e-mails
related to Monica Lewinsky. Specifically, I understand that you
went into the e-mail accounts of Betty Currie and three people
to determine what incoming e-mails they had related to Monica
Lewinsky; is that right?
Mr. Haas. Partially. I went in to several accounts--four, I
believe, or five accounts, of which one was Betty Currie and
Ashley Raines--and found the cache of Monica Lewinsky
documents. I did, however, not search the entire affected group
of 525 people for Monica Lewinsky. I was doing this in a manual
process, just as you would search your mail file. I went,
opened it, and said, ``Show me everything with `M.L. Lewinsky'
on it,'' and just happened to stumble over those and the four.
Beyond that, I was not given any direction, nor do I have
the ability to do a massive search of all the mail files on a
system. It would take a programmer to write a program to search
across mail files, although I kind of expected I might be
asked, you know, to have that done later on, it never came
forward as a request. But I was never instructed to search for
anything but that Monica Lewinsky.
It was in the middle of me going through each mail file and
counting the number of documents, so it was an interruption to
the process, and then I went right back to the process of
counting documents.
Mr. Waxman. So you were able to find e-mails that weren't
in the ARMS system when you looked at the individuals whose----
Mr. Haas. They were listed in the particular mail file as
not being sent through to ARMS because they still existed in
this view. Whether they had another means to arrive there
through the processes that Mr. Barry has described of a BCC to
another agency or re-transmitted out by the original recipient,
I have no way of knowing that.
Mr. Klayman. Mr. Waxman, perhaps we can be helpful here.
Our other client, Sheryl Hall, is prepared to testify here
today that Mr. Haas browsed through other files.
Mr. Waxman. Mr. Chairman, point of order. I know the
attorney is actively involved and----
Mr. Burton. And I do appreciate----
Mr. Waxman [continuing]. Has his own point of view, but I
thought----
Mr. Burton. Stop the clock just a minute.
Mr. Klayman. I thought you were here for the truth.
Mr. Waxman. We want to hear the truth. Let me pursue my
question so I can----
Mr. Burton. We stopped the clock just for 1 second. Point
of order. We do appreciate your help very much in bringing all
this to our attention, but the counsel--if Ms. Lambuth wants to
make a comment, she should direct her question or comment, or
anybody, to Mr. Waxman and not the legal counsel. Legal counsel
is to just confer with the client. That's the standard drill.
Mr. Klayman. Mr. Burton, let me address this to you,
because we brought Ms. Hall. We offered to make her available,
and I don't understand why your committee won't let her testify
here today.
Mr. Burton. We'll confer about that and--but please confer
with your client.
Mr. Waxman.
Mr. Waxman. Well, maybe we'll want to hear from her, but,
meanwhile, we've heard from all of these people and I want to
ask some questions, just so we can understand more about what
was going on.
So, Mr. Haas, you found a bunch of e-mails about Monica
Lewinsky that weren't on the ARMS system; is that right?
Mr. Haas. I can only tell you that the mail file I found
them in said they were not on the ARMS system. Whether they
arrived there through a secondary process, I have no way of
knowing.
Mr. Waxman. So they could have arrived there from a
secondary process, meaning what, they responded to or copied to
somebody? They might have also been----
Mr. Haas. Anything is possible.
Mr. Waxman. OK. Now, the fact that these e-mails were not
in the ARMS system doesn't necessarily mean they weren't turned
over to the independent counsel, Ken Starr. When the White
House responds to a document request, they do more than simply
search the ARMS. They also ask the relevant individuals to
search their own e-mail accounts. These individual searches
could have turned up the same e-mails that Mr. Haas found.
Mr. Haas, do you know whether the Monica Lewinsky e-mails
that you found were new e-mails that had not been previously
turned over to the independent counsel?
Mr. Haas. I do not know that, but I can state that, with
having worked at the agency for 9 years and having received
those requests for documents over many years, we were
instructed we did not have to search our own mail files. Be
advised, the mail files are not on your local hard drive. You
are reaching across the network and looking into the server.
That's why the ARMS process had to be created to take care of
the things that you really couldn't do.
The search criteria ability within Lotus Notes at our
current site is minimal for finding a group of documents. If
you were to search your own mail file and look for Monica
Lewinsky using the standard search methodology, you would not
find what I found. But, because of my expertise in the area, I
was able to find a way to locate them in the three files that
I--I mean, the five files that I opened and find those messages
and then collect them together and present them to my
management, as they requested.
Mr. Waxman. So you found that there were e-mails that were
not on the Lotus system or may not have been on the Lotus
system, but do you know, yourself, whether these e-mails might
have been turned over to the independent counsel independently
of what was turned over from the Lotus system?
Mr. Haas. The only thing I know is I was asked to print
them all out and put them onto paper, put them in an expandable
folder. I presented them to Betty Lambuth and she informed me
that she delivered them to what I think is White House counsel
in the old building, handed them off to an unknown person.
That's second-hand hearsay.
Ms. Lambuth. The person I handed it off to was Mark
Lindsay. The request was that they were printed off. ``Bob,
print these e-mails off,'' and I hand-delivered them over to
the old Executive Office Building to Mark Lindsay, who was over
there in a meeting.
Mr. Waxman. Thank you.
Well, I think I know the answer to the question, because my
staff asked Beth Nolan, who we are going to hear from later,
about this issue, and she told us--and I understand she'll
testify to this point later--that all of the Monica Lewinsky e-
mails you found were duplicative. They were copies of e-mails
that the counsel's office had already turned over to the
independent counsel. The e-mails were not in the ARMS--I'm
going to stop for a minute while those bells are ringing. These
e-mails were not in the ARMS system, but they were in Betty
Currie's and some of these other people's accounts I'm not
technical enough to explain exactly, but it was in their
computer. And you made copies of them, they were turned over to
the White House, and those e-mails were turned over--and we'll
hear later from the White House counsel--to the independent
counsel.
So the e-mails were not in ARMS, but they had been captured
by the independent searches of e-mail accounts of Betty Currie
and other individuals.
I think this is an important point, because the Washington
Times reported that these e-mails had been withheld, but, in
fact, that's not true. They had already been turned over.
Now, Mr. Haas, do you have any knowledge about the content
of any of the individual e-mails that were not turned over to
investigators?
Mr. Haas. I, again, don't know of documents that weren't
turned over. That is not my knowledge. I did read the two
Monica Lewinsky e-mails to validate the incoming and outgoing
event that I was asked to check into, so yes, I read two of
those referenced documents. Whether they were turned over, I
don't know.
Mr. Waxman. I wouldn't expect you to.
Well, the individual who has been making the most
vociferous allegations against the White House is Sheryl Hall,
who was a former White House employee. She's the source for the
Washington Times article, and I was quoting that article. She
gave a deposition about the content of the e-mails on February
19, 2000. In the deposition she says that she was told by a
Northrop Grumman contractor that the missing e-mails contained
information relating to Filegate, Monica Lewinsky, and Vice
President Gore's fundraising. She then said under oath, ``I was
told by this contractor that if the contents of the e-mails
became known, then there would be different outcomes to these
scandals, as the e-mails were incriminating and could cause
people to go jail.''
You are the Northrop Grumman employees who knew the most
about these e-mails.
Ms. Salim, let me ask you first. Are you aware of any
information that would substantiate Ms. Hall's accusations?
Ms. Salim. No, sir.
Mr. Waxman. Mr. Spriggs.
Mr. Spriggs. The only thing that I can think of that may
even come close to doing that is that early on we speculated
about possible information but had no direct knowledge of what
was in it and, you know, so we had no information to give her
or Ms. Lambuth or anyone else.
Mr. Waxman. Mr. Barry, do you know?
Mr. Barry. No, I don't.
Mr. Waxman. Mr. Hawkins.
Mr. Hawkins. No, sir.
Mr. Waxman. Ms. Golas.
[No audible response.]
Mr. Waxman. Mr. Haas.
Mr. Haas. No, sir.
Mr. Waxman. Ms. Lambuth.
Ms. Lambuth. I still stand behind what I said before, that
I was told that there was other important information,
Filegate, etc.
Mr. Waxman. You were told by Mr. Haas.
Ms. Lambuth. Right.
Mr. Waxman. And Mr. Haas testified that he didn't tell you
that.
Ms. Lambuth. I understand, sir. I am saying I still stand
behind what I was--what I stated, that I was told.
Mr. Klayman. I object. That's not what he testified to, Mr.
Waxman. That's false.
Mr. Burton. Only the witnesses can testify, and she----
Mr. Klayman. I'm not testifying. I'm objecting.
Mr. Burton. Well, you're not allowed to object.
Mr. Klayman. Mr. Chairman, then you should admonish your
colleague there, because that was not the testimony.
Mr. Burton. Mr. Klayman, your witness is perfectly capable
of refuting any remarks that are made.
Mr. Waxman.
Mr. Waxman. Mr. Haas, she said you told her. Did you tell
her that you knew the contents?
Mr. Haas. I never, evidence intimated in any way, shape, or
form that I knew any content of any e-mails other than the two
Monica Lewinsky documents. To that point, there was lots of
conversation within our group as to if there was ever found to
be a large content of anything involving these five or six
different events it would be a different story, but if--she may
have misunderstood that to say I saw something in there. But I
have never, ever seen anything in those documents except for
the two Monica Lewinsky documents.
Mr. Waxman. Before my time is completely up, I want to go
into this whole question of the so-called ``threats,'' the jail
threat, particularly. The Washington Times reported you were
told that there was a jail cell with your name on it if you
discussed the missing e-mails with anybody. This threat is
supposed to have occurred at the meeting with Laura Crabtree on
June 15, 1998. Mark Lindsay also reportedly participated in at
least a part of this meeting by telephone.
Ms. Salim, you were the first person to discover the e-mail
problem, and you were at that June 1998, meeting. Do you recall
being threatened with jail if you discussed the problems with
others?
Ms. Salim. No, sir. I do not remember hearing the word
``jail'' from anyone in that meeting.
Mr. Waxman. Well, Mr. Haas, my understanding is you have a
different recollection.
Mr. Haas. Yes, sir, but I posed the question to her and she
was answering me directly, so I would remember.
Mr. Waxman. In your statement, you said the question was
sort of flippantly asked. Do you think that the response might
have been a flippant response?
Mr. Haas. I did not take it that way, sir. I didn't want to
read any more or less into it. I had sealed my mind that I had
been instructed to treat it in the manner that she instructed,
``Don't talk to anyone, or else.'' I took it at face value and
I lived up to that face value until I couldn't do it any more.
Mr. Waxman. At the time you were all finding out about this
computer problem, the President was being investigated by Ken
Starr for impeachable offenses. There was a media frenzy going
on outside the White House. It seems clear that Mr. Lindsay and
Ms. Crabtree did not want any of you to talk to the press or to
people who might talk to the press about the problem until the
nature and scope of the problem was understood.
I'd like to ask whether you think this was an unreasonable
request. Anybody think it was an unreasonable request?
Ms. Lambuth. I think in the beginning that's the way we all
felt, but it also became very obvious that they weren't going
to do--make any moves to release this information--to release
the information that there were e-mails found.
Mr. Waxman. OK. But did any of the rest of you think that
maybe there was--it was reasonable not to want to have this
information that the system wasn't working available to the
press when they're on a media frenzy and people were out to
impeach the President?
Ms. Salim, what do you think?
Ms. Salim. I believe that that was a reasonable request for
them to ask us to keep a lid on this until they could manage
the situation.
Mr. Waxman. Mr. Spriggs, what is your opinion?
Mr. Spriggs. From my point of view, the fact that we didn't
know how many messages actually were involved, we didn't know
the content of it--while we may have speculated about its
implications and what was going on, the reality was we needed
to figure out what the problem was and how were we going to
deal with getting these in the records management system.
When Betty, through whomever directed her to do so, told
Bob to get information, he proceeded to do that in a deliberate
manner, and it took him several weeks to accomplish it.
There was no, from my point of view, any kind of question
that we were not going to proceed forward with this and resolve
this question. We were trying to get all of the information so
that whomever--OA counsel or White House counsel--would have
sufficient information to be able to judge the import of the
information that they had.
As far as I knew personally--and my colleagues can speak to
what they knew--I had no knowledge of anyone trying to stop us
from doing any of that or trying to keep any information away
from the Starr or anyone else at that point.
Mr. Waxman. I know if my office were being investigated, if
I was being investigated, and we thought we gave all the
materials to the White House counsel and all the people that
were investigating me, and then I found out the system wasn't
working the way it was intended, I'd tell everybody, ``Let's
hold off and see what's going on here and let's correct the
system.''
I just have one last question. Mr. Hawkins, people didn't
want them to talk to you. Was that because they might have had
a fear that you might have come back and said, ``This is
outside the scope of the Northrop Grumman contract,'' and you
might not go out and fix it?
Mr. Hawkins. I believe their intent, because they had a
computer failure, they should have at least acknowledged within
their own Civil Service and follow contractual guidelines. I
believe, in my own opinion, that they did try to cover up the
fact that they had a computer glitch and there were e-mails
involved and it did include the President and Monica Lewinsky.
I had--at no time did I ever feel that they were trying to
be up-front and open and honest because of my discussions with
Mr. Lindsay.
Mr. Waxman. So you got that opinion from--your impression
was from Mr. Lindsay?
Mr. Hawkins. From Mr. Lindsay.
Mr. Waxman. Well, I guess we're going to hear from him and
we'll find out more about it.
Ms. Lambuth. Mr. Waxman, I'd like to say that I agree with
what John says. As I said a few minutes ago, I think in the
beginning we all felt that they just wanted to get their act
together, basically, how they were going to let the public know
about this. But as time went on and we couldn't get any
decisions of how they wanted us to handle it, what the next
step was going to be, etc., it became very obvious to us, and
we had some discussions on this that they did not want this to
come forth.
I think one of the critical things that we----
Mr. Waxman. You had some discussions among----
Ms. Lambuth. Amongst our--within the team.
Mr. Waxman. And so you're talking to the team and trying to
figure out what was going on. You first thought that they were
trying to make sure you correct the problem, but then you
reached the conclusion that they were really trying to cover it
up. But that doesn't sound to me like the testimony of the
others on this panel who were part of the team.
Am I wrong? May I hear from others on the team?
Mr. Barr. Mr. Chairman, if we could have regular order, I
think the time has expired and we have some votes.
Mr. Burton. We do have votes.
Mr. Waxman. Well, let's just get an answer to this and then
we can----
Mr. Barr. I think the time has expired, and I would call
for regular order.
Mr. Burton. It has expired. I will let these people answer
this question and then we'll come back as soon as we vote. And
those who want to go ahead and hit the floor, come right back.
Proceed, because we have to take off here real quick.
Mr. Spriggs. To the extent that there was--from my
conversations with her and with the team, the question arose as
to whether----
Mr. Barr. Mr. Chairman, can we have regular order? We have
a vote on the floor and there are Members that don't want to
miss the questioning and the answers.
Mr. Burton. All right. We'll withhold answers to the
question until we return. We stand in recess.
[Recess.]
Mr. Burton. OK. We will recall the last question. We're
going to allow Mr. Waxman to end that questioning with that
question, because we were interrupted by the vote, and then
we'll go to Mr. Barr.
Mr. Waxman. Ms. Lambuth testified, as I understood it, a
minute ago that at first she thought that the White House was
trying to correct the computer problem, but then she came to a
different conclusion, and I asked her why, and she said,
``Well, in talking to the rest of the team.''
Now, some of you were part of the team. Was this conclusion
one you had reached? And was it just one that you all
speculated about, or do you agree with her conclusion? And do
you have reasons to agree with that conclusion or not agree?
Mr. Spriggs. When Betty left the--when Ms. Lambuth left the
contract, right before she had left there was a lot of
discussion about what had happened and, you know, about what
was going on around us. And, again, we didn't have her access
to Laura and higher-ups, so a lot of the stuff we would hear
would come through her, and we were, as far as I was concerned,
you know, trying to be responsive and supportive of her. We
also, I think, because of the things that had happened between
Mr. Hawkins and Ms. Lambuth, we were all very, you know, aware
of that situation.
The question of whether or not we had arrived at a
conclusion that the White House was obstructing anything.
There were so many technical issues and problems associated
with this, and her having left in July, it turned out many
other technical issues were of importance to us.
At that point, whether or not Betty leaving felt like that,
you know, a consensus was that we were supporting her and that
we believed that, I don't--I did not have that position,
although I do feel that at times that Betty, you know, again,
had superior--other information that I didn't have, so I
couldn't really say whether or not anyone was doing anything to
stop it.
Again, from my point of view, we didn't know enough about
what was going on to say that the White House had stopped
anything. It was more of a technical problem that we were
worried about, and that that's what we were really after was
the technical solution.
Mr. Burton. Before we proceed with Mr. Barr, let me just
say that it has been well established early on that all of the
people that were in the meeting felt either threatened or felt
concerned if they gave any information out about that.
Now, let me just say one other thing----
Mr. Waxman. I don't think that was established.
Mr. Burton. Yes, it was established.
Mr. Waxman. You may have reached that conclusion, but I
don't think that's the testimony.
Mr. Burton. OK. Well, I'll ask Mr. Barr, when he questions,
to reestablish that they all felt concerned or threatened by
the comments made by Ms. Crabtree or Mr. Lindsay. We'll let him
do that.
But I just want to admonish all the witnesses of this one
fact. We're going to find some additional information, I
believe, before the day is out, or, if not today, later, about
these e-mails, because we're not going to let this thing drop.
And if anybody perjures themselves before this committee, I
will send a criminal referral to the Justice Department and
they will be prosecuted or we will pursue that, so I don't want
anybody that's--I mean, there are some differences of opinion
here, and if somebody is not telling the truth I want you to
know that's very, very disconcerting and you need to think
about that and get this--and be as square and honest with this
committee as possible, because if we find out you are lying
there will be a problem.
Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
I believe that when Mr. Waxman was asking that last round
of questions, before we broke for the vote, he was indicating
that, in his view--and I presume he was talking as a manager, a
Congressman with regard to his staff--he finds nothing wrong
with calling people into his office and telling them that
they're going to go to jail if they even tell their spouse or
their supervisor----
Mr. Waxman. Point of order, Mr. Chairman. I just think he
ought to ask his questions, instead of trying to attribute to
me anything----
Mr. Barr. Now, whether or not----
Mr. Waxman [continuing]. One way or the other. Let him ask
his own questions. I'll speak for myself. Let him speak for
himself.
Mr. Burton. That is not a legitimate point of order. The
gentleman has the time.
Mr. Barr. Thank you.
Before we broke for the last vote, Mr. Waxman was going on,
in an effort to try and trivialize the intimidation that a
number of you felt when you were admonished by Ms. Crabtree,
for instance, not to speak to anybody under threat of going to
jail if you exercised your rights to inform your supervisor of
a problem, if you told anybody about it.
Now, while that may be standard operating procedure for
certain members of this committee, it is not for this Member,
and I think I can speak for the chairman that it is not for
him, either.
When somebody calls you, for example, Ms. Lambuth, into
their office and threatens you with going to jail if you tell
your supervisor about a problem that you believe needs to be
corrected, do you find that intimidating?
Ms. Lambuth. Most definitely.
Mr. Barr. Is there anybody else on the panel that would not
find that intimidating?
Mr. Spriggs. Maybe I don't understand the word
``intimidating,'' but I am somewhat intimidated by Mr. Burton's
comments here. I think that Mr. Burton, I think, did the
rightful job to express----
Mr. Barr. That's fine, Mr. Spriggs. I'm not----
Mr. Spriggs. Am I intimidated----
Mr. Barr. I'm not asking you how you feel about Mr.
Burton's testimony. I appreciate the fact that you want to say
that and you've said it. Now let's move on.
My question had nothing to do with Mr. Burton. OK?
Mr. Spriggs. Yes, sir.
Mr. Barr. OK. So don't interject something that is not
asked for. If Mr. Waxman would like you to go on in support of
what he's saying, I'm sure he will--he is very adept at doing
that.
My question was simply: are there any other members of the
panel that are here today that, if they are called into
somebody's office and threatened with going to jail if they
tell anybody about a problem that they have identified, and
that includes even going to their supervisor to try to get it
rectified, is that not intimidating.
Mr. Spriggs. When I was called into that office and Ms.
Crabtree and Mr. Lindsay were giving me instructions, I
perceived that those instructions were reasonable instructions.
Mr. Barr. OK. That's not what I'm asking you, Mr. Spriggs.
Mr. Spriggs. Were they threatening--I know, sir. I'm trying
to get at your question. Were they threatening to me?
Mr. Barr. Get at it quickly.
Mr. Spriggs. Were they threatening to me? Yes, they were
threatening to me, in----
Mr. Barr. That's my only question.
Mr. Spriggs [continuing]. In narrow context.
Mr. Barr. I have other questions here, and I appreciate
your candor, and if you have other things to say, I'm sure you
can work it out with Mr. Waxman to say them. I'm not interested
in that and I'm not interested in how you feel about Mr.
Burton.
Is there anybody else who would not feel somewhat
intimidated if they were threatened with going to jail if they
told their supervisor about a problem that they had discovered?
[No response.]
Mr. Barr. Now, Mr. Barry, I understand that you were asked
in January or February 1998 to locate an e-mail from Monica
Lewinsky to Ashley Raines. That is correct, isn't it?
Mr. Barry. Not exactly.
Mr. Barr. OK. Were you asked at some other time to find an
e-mail from Monica Lewinsky to Ashley Raines other than January
or February 1998?
Mr. Barry. No. I was asked by White House counsel to
perform an ARMS search, a search of the ARMS system.
Mr. Barr. When you say White House counsel, specifically
who?
Mr. Barry. I can't remember.
Mr. Barr. OK. By the Office of White House Counsel?
Mr. Barry. Correct.
Mr. Barr. OK. Who was it that called you up? There's no
such person as White House counsel there, particular people.
Who was it that called you from the White House counsel's
office?
Mr. Barry. I can't remember, sir. I get three, four search
requests every month, so I can't remember back in 1998 exactly
who it was, but it would be in the record, though. I have e-
mails of all that stuff.
Mr. Barr. OK. So if, in fact, we subpoena those documents
from the White House or you are served with a subpoena for the
production of them, that would be reflected in those documents?
Mr. Barry. That's correct.
Mr. Barr. And you could refresh your recollection?
Mr. Barry. That's correct.
Mr. Barr. OK. So that's what prompted you to look for that
particular e-mail?
Mr. Barry. No. I was never asked to look for a particular
e-mail. I was asked to perform an e-mail search--not an e-mail
search, an ARMS search, a search of the ARMS system.
Mr. Barr. Right.
Mr. Barry. In January 1998.
Mr. Barr. For what?
Mr. Barry. For--I can't remember the specifics of it, but
it had to do with the Lewinsky matter.
Mr. Barr. OK. And that's when you went to Mr. Spriggs to
help locate that material?
Mr. Barry. No.
Mr. Barr. At what time did you go to Mr. Spriggs?
Mr. Barry. If I could, let me just give you a little bit of
the history, if I can. I was asked to perform the search, as
normally happens. I do the ARMS searches. And during the
production of those documents----
Mr. Barr. You discovered a problem?
Mr. Barry [continuing]. I discovered what--I didn't know it
was a problem. I discovered what looked like conversational e-
mail between two people and I only saw one side of the
conversation.
Mr. Barr. Right. So there appeared to be a gap?
Mr. Barry. Yes.
Mr. Barr. OK. Now, you wrote an incident report on that,
did you not?
Mr. Barry. That's correct.
Mr. Barr. OK. Where is that incident report?
Mr. Barry. I believe it was produced.
Mr. Barr. Do you have that with you?
Mr. Barry. Yes, I do.
Mr. Barr. OK. Could I see a copy of that, please?
Mrs. Chenoweth-Hage [presiding]. Mr. Barr, you'll need to
wrap your questions up.
Mr. Barr. OK. Forget it, then. We don't have time.
Mrs. Chenoweth-Hage. Thank you.
The Chair recognizes Mr. Souder for questions.
Mr. Souder. I thank the Chair.
I had a few questions. First, I wanted to establish,
because I thought it was kind of confusing, but, as I
understood--and correct me if any of these are incorrect--that
the number of e-mails, whether they were a small subset or a
large subset, there were 525 people. I think that's what Mr.
Haas said.
Mr. Haas. Yes, that's correct.
Mr. Souder. Those 525 people that are in doubt here are the
525 people that are at the higher echelons of the White House,
not Civil Service but political appointees?
Mr. Haas. It is the whole White House organization and some
of their lesser organizations, but to my knowledge it is the
White House.
Mr. Souder. In other words, to say it is a small subset is
a little misleading, since this subset happens to be who we
were investigating during the period of 1996 to 1998 and whose
testimony we were seeking. So if there were 525 people in the
Government who we most needed, it was these 525, most likely.
Second, my technical understanding of this is that the part
that we're--the only thing in dispute here, from Mr. Barry, I
think, was whether he expected to see 10 percent and he saw 5
percent. Based on the number of e-mails just for 1997, if,
indeed, it was 5 percent, it would have been roughly 205,000
for 1997 and would have been 400,000 if it was 10 percent, so
it's not a small number that we're talking about. The only
question you were really disputing is whether it is 5 percent
or 10 percent; is that right?
Mr. Barry. No. I don't think that's what I said. All I said
was that----
Mr. Souder. You said that you expected to see 10 percent.
Mr. Barry. The numbers that had been thrown out when I
first asked about it when I was involved in the technical
meetings in July 1998, my concern was, if there were these
missing e-mails, what impact was it going to have on the ARMS
system when they became unmissing.
Mr. Souder. And you said that there----
Mr. Barry. And----
Mr. Souder [continuing]. Was 5 percent, roughly. You said
there was an increase, but it wasn't 10 percent.
Mr. Barry. No, no. I said----
Mr. Souder. You said when you went back in to check----
Mr. Barry. I think I need to clarify this, because when I
went back and looked at the growth numbers between November
1998 and December 1998, which would be the significant ones in
this case, I saw nothing other than what I would normally
expect in the growth between 1 month and the other, given the
trend line that we have in place.
Mr. Souder. OK. So that's a different number than what I
was looking for, so my understanding is there has been a
dispute between whether it is--what the number is. But we're
talking about hundreds of thousands of e-mails.
Mr. Barry. I don't know that anyone--I certainly don't know
what the actual numbers are of these e-mails. I have no idea.
Mr. Souder. And it was also my understanding, from the
earlier testimony of Mr. Hawkins, that, if I understood you
correctly, you said that you believed that there was a--that
they were trying to cover up, and that there was concern about
the Civil Service contract. Could you elaborate on what you
meant by that?
Mr. Hawkins. When I first was contacted, of course, about
the e-mail--and we didn't know it was e-mail--it was through
Jim Wright, the contracting officer's technical representative,
COTR.
Subsequent to that, I was called to Mr. Lindsay's office,
and at that time I was confronted by Mr. Lindsay, Mark Lindsay,
why I got involved, and I basically told him because of the
contract. It was very specific in the contract that the COTR
gave directions to the program manager and no one else. And,
therefore, I took the position that I could not support this
project and would not do it without an internal work order,
which was compliant with our contract.
At two or three points in the conversation, it got very
tense. Matter of fact, Mr. Lindsay said over and over, ``I hope
you appreciate my position here.'' And I repeated back to him,
``I hope you appreciate my position here.''
Mr. Souder. What do you think he meant by, ``I hope you
appreciate my position?''
Mr. Hawkins. I took it straight as a strong arm. I took it
as a direct assertion that my employees should go do this work
and I should not be involved.
To the contrary, the contracting officer, which was Dale
Helms, Mr. Jim Wright, gave me explicit instructions when we
talked, ``Don't `crater in,' '' and I never did at any time.
And I did feel threatened the whole meeting with Mr. Lindsay.
Mr. Souder. When you--do contract employees have any of the
protections that Civil Service employees have? In other words,
if patronage employees come wandering in and intimidate on a
contract, you don't have any protection?
Mr. Hawkins. No, sir. As a matter of fact, in my
conversation with Mr. Lindsay, I told him that the Northrop
Grumman employees would be the ones directly in the line of
fire. I also told him that I was not going to put Northrop
Grumman as a company or Steve Hawkins in direct harm's way. I
also made a statement that I did not want my company's name in
the newspaper nor mine or any of my employees.
I was very, very direct with Mr. Lindsay, and he did ask me
or he did make a statement that he was extremely upset--and he
used the word, and I can give you the exact phrase if you want
it----
Mr. Souder. Probably not. Can you summarize it?
Mr. Hawkins. OK. And I said that was my position, and we
ended the conversation, at which time I left his office, and
immediately, when I went back to my office, Jim Wright was in
the office, Dale Helms came in shortly thereafter. Jim Wright
asked me if I cratered in, and I said, ``No, sir, I did not,''
and he said, ``That's why we hired you to work here at EOP,
because we knew you would stand up.''
Mr. Burton [presiding]. The gentleman's time has expired.
We'll go to a second round, so we'll get back to you in
just a minute.
Let me clarify one thing before we go to Ms. Chenoweth.
Mr. Spriggs, you said you felt intimidated. I have made
this comment to almost--to a number. If somebody perjures
themselves before my committee, we will send a criminal
referral to the Justice Department. Now, if that's intimidation
that you feel, so be it. But I want people to be truthful, and
that's why we always make that statement.
Ms. Chenoweth.
Mrs. Chenoweth-Hage. Thank you, Mr. Chairman.
I wanted to direct my questions to Mr. Barry.
Just to clarify some of the facts that have been
established in the record, isn't it true that you noticed two
ongoing--outgoing e-mails from Ashley Raines to Monica Lewinsky
and that is what first triggered your concern that there may be
an anomaly in this system? Is that not correct?
Mr. Barry. That's correct. And actually that's what I was--
what I referred to in the document that I had written up in
January 1998.
Mrs. Chenoweth-Hage. And so then you went ahead and went on
vacation right after that.
Mr. Barry. No, that's not correct. January 1998 was when I
first--I was asked to do the search, and I saw this
conversational e-mail during the production of the search
documents, of which there was just one side of the
conversation.
I then, as it says in my document, I went and I--the
document I wrote in January 1998--I talked to John Spriggs,
first of all, to have him look at the logs for incoming and
outgoing e-mail, and to--because I didn't know what was--I
don't know what the problem was, if there even was a problem. I
mean, it is a possibility that the mail never got to the EOP.
That was the first thing that came into my mind.
All I knew was that these pieces of e-mail that I thought
should be there were not in ARMS.
Mrs. Chenoweth-Hage. So what you saw that was out of order
was you noticed e-mails from Ashley Raines to Monica Lewinsky,
but that Monica Lewinsky's e-mails were not present?
Mr. Barry. Some of--at least one of them or two of them. I
can't remember exactly. I think it might have been at least two
of them, because it is like a telephone conversation. You could
see, you know, an outbound e-mail saying, ``Can you pick me up
after work,'' an incoming one saying, you know, that should
have said, ``Yes, I will,'' and then an outbound one saying,
``Oh, great. I'll meet you at five.'' That type of thing. And I
didn't see the incoming, but it was clear that there should
have been something.
Mrs. Chenoweth-Hage. Now, who did you give this incident
report to? You made up an incident report about this?
Mr. Barry. I documented the problem. Yes.
Mrs. Chenoweth-Hage. And who did you give the report to?
Mr. Barry. I gave it to my supervisor.
Mrs. Chenoweth-Hage. And your supervisor was Jim Wright?
Mr. Barry. Jim Wright. That's correct.
Mrs. Chenoweth-Hage. That has been established. Now, is
that who you would ordinarily refer these problems to?
Mr. Barry. I'm not sure that--this is a kind of one-of-a-
kind problem, as far as I am concerned. I mean, there have been
problems in the past with the Notes-ARMS interface, and I
documented them and passed them on to the appropriate person,
who would have been the branch chief.
Mrs. Chenoweth-Hage. The branch chief of----
Mr. Barry. Of the--either the systems integration and
development or the desktop branch chief.
Mrs. Chenoweth-Hage. OK. And once you gave this report to
Mr. Wright, what happened to the report?
Mr. Barry. We--I can't speak for exactly what happened to
it. All I know is that I kept it and----
Mrs. Chenoweth-Hage. Well, let me ask this: did you
followup and ask any questions about the report, and did the
White House office seem interested in the problem?
Mr. Barry. Well, like I said, I reported the problem to my
supervisor, and I remember, although not vividly, that my
supervisor and myself went and briefed the IS&T associate
director at the time, Kathy Gallant, of the problem, but I
can't remember exactly when that was in the sequence of things,
but it was some time in the January-February timeframe.
Mrs. Chenoweth-Hage. Did anyone instruct you to keep the
problem silent?
Mr. Barry. No.
Mrs. Chenoweth-Hage. No?
Mr. Barry. Well----
Mrs. Chenoweth-Hage. When you first went to Ms. Lambuth's
office, was there a discussion there?
Mr. Barry. That was subsequent to that. This document was
written in January 1998, and I didn't hear anything more about
this whole situation until the actual problem that caused what
I had seen back in January to occur was discovered some time in
June. I was brought into the loop of July 1998.
So it wasn't clear to me--my point is it wasn't clear to me
at all. In fact, it said--if you read the document, it says in
there you can't tell if this is a systemic problem, if it's a
one-of-a-kind problem, etc., I mean, it says it all right in
there, because I didn't know at that time.
Mrs. Chenoweth-Hage. May I ask, for the record, did you
give your weekly reports during this time to Mr. Wright?
Mr. Barry. I believe so. Yes.
Mrs. Chenoweth-Hage. Do you know what he did with those
reports?
Mr. Barry. I have no way of telling what he did with them.
Mrs. Chenoweth-Hage. Do you know who else saw those
reports?
Mr. Barry. I have no way of knowing.
Mrs. Chenoweth-Hage. Mr. Barry, the documents that I
reviewed show that you were very, very frustrated about the
lack of instruction or direction that you were getting in this
manner. And I'm going to briefly point out a few of those
documents and ask for your brief comment on them.
I would like for you to turn to the White House exhibit No.
19, dated January 24, more than 2 months after the problem
became known.
[Exhibit 19 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.038
[GRAPHIC] [TIFF OMITTED] T9621.039
Mr. Barry. Excuse me, ma'am? Exhibit----
Mrs. Chenoweth-Hage. White House exhibit No. 19. Do you
have the exhibit?
Mr. Barry. Yes, I do.
Mrs. Chenoweth-Hage. Now, look at the entry under the
section entitled, ``Additional activities.'' And it reads, ``I
continue to be involved in discussions regarding the Mail2
problem, but there has been no movement thus far on correcting
the problems or getting the data over to ARMS.'' Correct?
Mr. Barry. That's--well, yes, that's what I said.
Mrs. Chenoweth-Hage. OK. Now, look at exhibit----
Mr. Burton. The gentlelady's time has expired, but we will
yield to Mr. LaTourette.
Mr. LaTourette. I thank the Chair. I would like to yield
such time as she might take for Mrs. Chenoweth to complete this
line of questions, if that's all right.
Mrs. Chenoweth-Hage. I thank the gentleman.
Mr. Burton. We'll get the gentleman more time later.
Mrs. Chenoweth-Hage. Thank you, Mr. Chairman.
I would direct your attention to White House exhibit No.
23, an e-mail from you to your boss dated 8/13/98.
[Exhibit 23 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.040
Mr. Barry. Yes.
Mrs. Chenoweth-Hage. OK. In pertinent part, the second
paragraph reads as follows: ``I am very concerned about several
aspects of this problem. As far as I can tell, there is no
movement underway to fix the problem and recover the lost
records from the backup tapes. When I talk to Sandy Golas and
John Spriggs or Bob Haas, they tell me that there is no
movement on this project from their side and the last activity
was the meeting that we had with Betty before she left on 7/
28.'' Correct?
Mr. Barry. That's what I said. Yes.
Mrs. Chenoweth-Hage. All right. Later, the document says
that, ``The only people I have been in contact with on this
project are you--'' that's your boss--``Kathy, Betty, Sandy,
Bob, and John. I have not spoken to any other Government person
on this, and I am not at all clear what my role should be. I
feel the records must be recreated, and any searches need to be
re-performed if the requestors feel it is necessary. This seems
like a daunting proposition, but I do not see any other
alternative.'' Correct?
Mr. Barry. That's what I said. Yes.
Mrs. Chenoweth-Hage. The e-mail concludes--and this is the
same document, in the second-to-the-last paragraph--``I
apologize for the rambling nature of this memo, but I hope it
captures my concerns and frustration level.''
Mr. Barry, you sound like a real voice in the wilderness.
Can you state for the committee you were frustrated when you
wrote those e-mails?
Mr. Barry. Yes. I was definitely frustrated.
Mrs. Chenoweth-Hage. Would you please turn to White House
exhibit No. 47, an e-mail from Kathy Gallant to you dated
September 25, 1998?
[Exhibit 47 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.041
Mr. Barry. Yes.
Mrs. Chenoweth-Hage. Mr. Barry, in this letter, Ms. Gallant
notes that in her meeting with Joe Vasta, Mr. Hawkins'
replacement, Logicon PM, a subcontractor, and John Spriggs and
Jim Webster, a two-phase strategy was discussed at that time to
respond to the problem. But in the second-to-the-last
paragraph, Kathy Gallant observed that ``contracts is aware of
this whole mess and supports the creation of an IWO to clarify
what is to be done and when.''
And then she concludes, ``Please, no jumping out the
window. It is not necessary.''
Now, I appreciate the humor here, but why would Ms. Gallant
feel the need to say something like that in a memo?
Mr. Barry. I'm not sure. Probably in response to my level
of frustration.
Mrs. Chenoweth-Hage. All right. I yield back the balance of
my time to Mr. LaTourette. Thank you.
Mr. LaTourette. I thank you. I don't know how much time
remains on the clock, so just a couple of quick observations.
Mr. Spriggs, I wouldn't be intimidated by the referral by
this committee to the Department of Justice. Their performance
on other referrals we've made should leave you anything but
intimidated. [Laughter.]
And I just want to make a couple of observations, and that
is I want to talk about the two phases of this, sort of for the
record's sake.
One is we're not talking about some--an exercise that is
not important. And there were two steps. One is you had to fix
the problem. I believe it was called ``stop the bleeding,'' is
that right, Mr. Barry? You had to figure out why incoming e-
mails to the White House were not being captured, and that was
done in a fairly speedy fashion, was it not? You stopped the
bleeding, or you believed you stopped the bleeding; is that
right?
Mr. Barry. Well, I was involved only, again, from the ARMS
perspective, and I was only involved in the first 2 weeks of
technical meetings starting in July 1996.
The best of my knowledge, the ``bleeding'' was stopped in
November 1998.
Mr. LaTourette. OK. But the second problem is that you had
a period of time where e-mails that were not captured by the
ARMS system are still some place out there, and I think that
when Mrs. Chenoweth was talking to you, that was some of the
frustration, that no effort--OK, maybe we stopped the bleeding,
and maybe we haven't, but no effort is being made to retrieve
what we recognize is a whole body of stuff that didn't make it
in the ARMS system; is that right?
Mr. Barry. Well, I think the source of my frustration was
that I had been involved for the first 2 weeks starting in June
or July 1998 and then had heard nothing after that until
November.
Mr. LaTourette. Could I just ask one more question?
Mr. Waxman. May I ask unanimous consent the gentleman be
given 2 additional minutes and yield at this time.
Mr. Burton. Thank you. Without objection, so ordered.
Mr. LaTourette. I appreciate the courtesy.
I just wanted to point out--and anybody on the panel can
answer this--the reason that this is important--and there has
been some criticism from the White House that, you know, you
goofy Republicans want us to spend a lot of money and recreate
stuff from files that are locked up, and it's going to cost us
a lot of dough to do this.
You have to, under the law, not only the Armstrong decision
but the Federal public records law, take these e-mails that
have not been captured by ARMS, put them in the ARMS system, so
that they may be responsive to those who may seek these public
documents in the future. Isn't that the law?
Mr. Barry. I'm not really a legal person, but----
Ms. Lambuth. Well, let me ask somebody else. Any of you
aware of the public records law? Mr. Haas, how about you?
Mr. Haas. I have just recently been told that. I did not
know that, but it makes sense.
Ms. Lambuth. Well, I think it does make sense, and I would
tell you that I'm not a legal expert, either, but I believe
that there's a case called Armstrong v. the Executive Office of
the President that extends Federal recordkeeping mandate to
electronic mail. And the reason that you have the ARMS system
is so that the electronic e-mails can be captured, and when
somebody like a court or a committee of Congress wants them,
you can search by, you know, Lewinsky or Filegate or whatever
the case may be and pull them up and you don't have to go
through the laborious process that Mr. Haas apparently went
through.
And so somebody has to do this, anyway, or else the White
House is out of compliance with Federal law and the Armstrong
decision.
Does anybody disagree with me? Is that a fair observation?
[No response.]
Mr. LaTourette. OK. I'm going to take silence as assent,
which is always a dangerous thing.
In the next round of questioning I want to come back--I
hope we're going to have another round, Mr. Chairman--and, Mr.
Hawkins, I want to talk to you specifically about--where did
Mr. Hawkins go?
OK, Mr. Hawkins will be back shortly.
Mr. LaTourette. Well, maybe Mr. Hawkins doesn't want to
talk to me, but I want to talk to Mr. Hawkins about the meeting
that took place with Mr. Lindsay and Ms. Crabtree.
Ms. Golas, you've sort of been ignored here for the last 3
hours, and I want to talk to you about your experiences and
your specific recollections.
I thank you, Mr. Waxman, for the courtesy, and yield back.
Mr. Burton. We will go to a second round.
I want to tell the panel and the Members we would like to
finish with this panel and then break for lunch. I hope we will
be concluding more quickly, but there seems to be additional
questions that are coming up that have to be addressed, so if
somebody has to go to the bathroom or something--if you all do,
we can take a 5-minute recess, but we'll break for lunch as
soon as we finish this panel.
Mr. Barr.
Mr. Barr. Thank you.
Mr. Barry, during the break I consulted with our counsel
here. We don't have a copy of your incident report. That
apparently has not been furnished to us. Could we have a copy
of that, please?
Mr. Barry. Yes, sir.
Mr. Barr. Was a copy of your incident report provided to--
--
Mr. Young. It was produced, Congressman.
Mr. Barr. Pardon?
Mr. Young. It was produced.
Mr. Barr. And who are you?
Mr. Young. I'm counsel to the Office of Administration,
Congressman.
Mr. Barr. OK. And what is your name?
Mr. Young. John Hardin Young.
Mr. Barr. OK. And you are employed by the White House?
Mr. Young. No, I'm not.
Mr. Barr. Who employs you and who are you retained by?
Mr. Young. Director of the Office of Administration.
Mr. Barr. The what?
Mr. Young. Director of the Office of Administration.
Mr. Barr. The Office of Administration.
Mr. Young. Executive Office of the President.
Mr. Barr. OK. And you are employed by----
Mr. Young. The Office of Administration, the Executive
Office of the President.
Mr. Barr. White House?
Mr. Young. No. The Office of Administration of the
Executive Office of the President.
Mr. Barr. Is that an agency of another government? I mean,
I don't know. I appreciate the fact that you are an attorney
and so forth. I'm just trying to find out--are you employed by
the administration, by an agency of the administration of the
White House?
Mr. Young. The Office of Administration was created by the
Reorganization Act of 1977. It is an agency within the
Executive Office of the President.
Mr. Barr. Which is the White House, the administration.
Mr. Young. I'll leave that for your conclusion, sir.
Mr. Barr. Thank you. That is my conclusion.
Was a copy of the incident report that is being copied now
provided to you--by you, Mr. Barry, to the White House
counsel's office?
Mr. Barry. It wasn't provided by me to them. No.
Mr. Barr. It was not? OK. Did they receive a copy of it at
some point? Do you know?
Mr. Barry. I don't know, sir.
Mr. Barr. OK. Do you know even today whether they received
a copy of it or whether they have a copy of it?
Mr. Barry. I don't know.
Mr. Barr. Did you provide them a copy of the Lewinsky e-
mail or e-mails that were in question?
Mr. Barry. I provided to them back in 1998 all of the e-
mails that hit on the search that I was running against the
ARMS system.
Mr. Barr. Including the ones that we're talking about here
today that sort of triggered this whole thing?
Mr. Barry. Yes. The outbound ones, yes. That's all I had
access to.
Mr. Barr. At that time, were there pending proceedings in
the Congress with regard to these matters?
Mr. Barry. I have no idea. I don't know.
Mr. Barr. OK. And when was this?
Mr. Barry. It was January 1998.
Mr. Barr. 1998. OK. I think the record will reflect that
there were at that time. And certainly subsequent you are aware
of the fact that there were matters before the Congress which
at least two different committees of the Congress--the
Judiciary Committee in impeachment proceedings and the
Government Reform and Oversight Committee--were investigating
regarding Ms. Lewinsky and the other types of matters that
we're talking about here today?
Mr. Barry. I was aware that the impeachment was proceeding,
yes, or the impeachment process.
Mr. Barr. And you were aware that, at various points in
time during the period 1988 [sic] and 1999, this committee of
the Congress also was investigating various matters regarding
the President?
Mr. Barry. I wasn't aware of that. I mean, I don't know. I
don't----
Mr. Barr. OK. Is it your testimony that, even as you sit
here today, you're not aware of that?
Mr. Barry. I'm not exactly sure what the question is. I
mean, I don't know what's going on in Congress all the time.
Mr. Barr. A lot of us up here don't, either. I certainly
wouldn't hold you to that standard.
My concern is--and I think both counsels know what our
concern here is, and that is with regard to obstruction of
justice, which includes intimidation of witnesses, although
some of the Federal statutes don't require that a pending
proceeding actually be--or that a proceeding actually be
pending. Various other provisions of Title 18 do, with regard
to obstruction.
I think the record will reflect that those that caused the
intimidation or the feelings of intimidation--the pressure, the
threats, however you all want to characterize them, or however
a prosecutor might want to characterize them--in fact took
place in the context of pending proceedings.
These are all matters--and I know Ms. Hall is here in the
audience, although has not been called as a witness, but I
believe she also would testify that these matters were those
under consideration, and very likely were the--perhaps the
reason behind the pressure, the intimidation, or the tactics
used by Mr. Lindsay and others, and that it was not simply to
protect all of us from the media.
I suppose we'll get into this later. I know Mr. Lindsay
will be here, but I appreciate--although Ms. Hall is not a
witness, I appreciate her taking the time to be here so that
she can benefit from the testimony also.
Thank you.
Mr. Burton. The gentleman's time has expired.
Mr. Mica.
Mr. Mica. Thank you, Mr. Chairman.
I want to thank the witnesses. Let me just say, before I
start some questions, that we appreciate your coming forward
and also cooperating with us, the committee. Unfortunately,
we've had a history, as you've heard some of the other Members
refer to, of trying to conduct investigations and oversight,
which is our responsibility, and I think one that goes to the
heart of really our structure and system of government being so
successful that there is continually oversight by Congress
looking at what the executive branch is doing.
As you've also heard, we've had a lot of difficulty.
Sometimes we get pieces of the puzzle. We've had over 120
witnesses either flee the country or take the fifth amendment.
We've gone down different paths, as you've read in the paper,
only to find that documents disappear, and suddenly sometimes
reappear and never appear, so we don't get the whole picture.
And it does give us great concern when we hear of missing e-
mails, and there may be some legitimate technical explanations
for those documents not being produced, but it does raise us
questions.
The major question I have is--and some of this has been
alluded to--all of you that were involved in this process were
aware that there was an independent counsel, there were
congressional investigations seeking materials. Is that
correct?
Ms. Lambuth, maybe we could start with you. You were aware
of that?
Ms. Lambuth. Yes, I was.
Mr. Mica. And you were aware of that, Mr. Spriggs?
Mr. Spriggs. Yes, I was aware of it.
Mr. Mica. And the rest?
Mr. Haas. Yes.
Ms. Golas. Yes.
Mr. Hawkins. Absolutely.
Mr. Burton. My next question would be: was there any--were
you under the belief that there was any intent to stop any of
this information from being revealed or being provided, either
to this committee or to the independent counsel or anyone else
who was seeking it? Do you think there was any attempt?
Ms. Lambuth. Well, as I had mentioned a little earlier,
yes, I do believe. Initially we felt that they just wanted to
figure out how they were going to let the public know that
additional mail messages were found. I later, for sure--and I
thought the rest of the team had, but I definitely felt,
through the stalling and, as was pointed out a few minutes ago,
Mr. Barry even felt that there was some stalling going on in
revealing these other documents, and that nothing was being
done on this particular project as far as where do we go now,
what the next direction should be, getting the equipment in,
and I do--I definitely do feel that there was some stalling.
Mr. Mica. Well, do you feel this was sort of an
evolutionary sort of getting to a stall? Was it--Mr. Spriggs,
you are shaking your head yes and no.
Mr. Spriggs. The question of a stall, we were all
frustrated by the complexity of the technical problems that are
required to fix this. The----
Mr. Mica. But once you--OK, there's the first part of being
technically able to provide this. And at what point was that
reached? Was that a few months afterwards, or is this still----
Mr. Spriggs. From my point of view, it hasn't stopped yet,
sir.
Mr. Mica. It hasn't stopped yet?
Mr. Spriggs. Yes. I mean, there continues to be technical
issues. When we have meetings, and when we--when the White
House was informed that there was going to be this newspaper
article that came out, we gathered to talk about what we were
going to do to solve this problem. Let's get the technical
heads together and let's talk about, you know, what's going on.
And we began again to talk about the technical issues.
Obviously, we got sidetracked because of the article that
came out and the discussions of time lines, but the technical
issues, themselves, continue to be knotty, difficult problems.
We had----
Mr. Mica. So you're saying before the committee today that
you still aren't able to produce these e-mails as of today?
Mr. Spriggs. As of today we cannot.
Mr. Mica. You cannot. And we had Mr. Haas testify that he
did search for certain e-mails and found--you said you had 500
of one and a bunch of another on a matter; is that correct?
Mr. Haas. That's correct. That was a manual search, just as
you would look through your own mail file. That's not
acceptable to ARMS. The return is literally you see a screen
full of documents. Of course, you can print them, but even
that----
Mr. Mica. When you got that information, you gave it to
who--that you had some of this information?
Mr. Haas. The Monica Lewinsky printouts? That went to----
Mr. Mica. Whatever you found.
Mr. Haas. Yes. That went to Betty Lambuth.
Mr. Mica. And then you----
Ms. Lambuth. I gave the Monica Lewinsky printouts to Mark
Lindsay.
Mr. Mica. And you don't know what happened to them
afterwards?
Ms. Lambuth. No. And any of those e-mails can just be
printed out.
Mr. Mica. But somehow you had the feeling that this went
beyond just not being technically able to acquire the
information to a different phase; is that correct?
Ms. Lambuth. Yes, I did. Again, because I could never get
my questions answered as being a supervisor so I could give
direction to my team, I couldn't get answers to questions that
I had. As I had mentioned previously, I was removed from the
contract. I was one of the people that had history on this
particular Project X, and nothing was done by the Government
people that knew I had this information and to continue to do
the continuity of guidance----
Mr. Mica. At what point were you removed?
Mr. Burton. I'm sorry. The gentleman's time has expired.
We'll come back for a second round, Mr. Mica. We'll come back
in just a little bit.
Mr. Hutchinson.
Mr. Mica. Can she answer at what point she was removed,
just so we have a complete record?
Mr. Burton. What's that again?
Mr. Mica. At what point she was removed was the question.
Mr. Burton. At what point were you removed?
Ms. Lambuth. I was removed in July.
Mr. Burton. Of?
Ms. Lambuth. 1998.
Mr. Burton. 1998.
Mr. Mica. Thank you.
Mr. Burton. Mr. Hutchinson.
Mr. Hutchinson. Thank you, Mr. Chairman.
I want to look back and sort of put this in context, or
examine it in that sense, all that was happening in 1998
whenever you were concerned about the searches and the
technical problems.
In January 1998--you all read the newspapers? I mean, it
was an explosive atmosphere. You had the public stories about
the independent counsel, about Monica Lewinsky, as to what was
going to be leading up to August 1998, and during that time you
were told to conduct these searches based upon certain
subpoenas.
Now, did anyone see the subpoenas, or were you all just
told this is what you need to search for?
Mr. Haas. When we get subpoenas--if these are subpoenas
that we're getting, an e-mail is circulated through to all of
the EOP, and it just basically states the fact that they're
looking for documents related to, in the case of Monica
Lewinsky, Monica Lewinsky, and please produce them. We don't
see the physical subpoena in its true written format.
Mr. Hutchinson. Do they explain to you in that directive as
to who issued the subpoena, whether it be the independent
counsel or grand jury or a committee of Congress?
Mr. Haas. I don't recall reading any information pertaining
to that. It may state that in the beginning, but I cut to the
chase and try to find the information.
Mr. Hutchinson. But you knew that you were trying to comply
with subpoenaed information, either from the independent
counsel or for some other body?
Mr. Haas. When I personally receive one, yes, but again I
state we don't search our mail files, ourselves. That is
theoretically done automatically, and in this case it was
missed because of the glitch.
Mr. Hutchinson. But you felt concerned about it at some
point when you understood the glitch, that you went through
manually to see what you could find in some files.
Mr. Haas. I was requested to specifically look for Monica
Lewinsky in these specific mail files. I was directed to do
that.
Mr. Hutchinson. Who directed you to do that?
Mr. Haas. Betty Lambuth presented me with a note with some
names on it that was given to her by someone, and I proceeded
to follow that note. And then, at a later point, they suggested
I look in Ashley Raines and Betty Currie's mail file, and
that's when I found the documents, within minutes of being
handed the note.
Mr. Hutchinson. And you provided those documents to Ms.
Lambuth?
Mr. Haas. Well, initially I just reported the findings, and
then after that I was--she took that information and went
wherever she goes with it. They came back later and asked me to
please set up a work station that I could print those on paper
and present them to her. Yes.
Mr. Hutchinson. Ms. Lambuth, you received this information.
What did you do with it?
Ms. Lambuth. When I received this information, I either
gave it to Ms. Crabtree or Mr. Lindsay.
Mr. Hutchinson. And you----
Ms. Lambuth. And I don't remember in which case I gave what
information to whom, except I know I took Monica Lewinsky's
over to Mr. Lindsay at the old Executive Office Building.
Mr. Hutchinson. And did you believe that these searches
were important?
Ms. Lambuth. I'm sorry?
Mr. Hutchinson. Did you believe that these searches that
you were doing were important?
Ms. Lambuth. Yes.
Mr. Hutchinson. You knew that they had some legal impact
because you were complying with a subpoena?
Ms. Lambuth. Correct.
Mr. Hutchinson. And there are two issues here. I mean, one,
you've got to fix the technical problem. You've got to comply
with the law in terms of the public records, and then you also
have subpoenaed information in an investigation that is going
on by the independent counsel.
Was this part of the reason that you were going to
Starbuck's to meet? I mean, this was not simply an ordinary
technical problem; am I correct?
Ms. Lambuth. That is correct.
Mr. Hutchinson. Now, did you ever consider a broader
responsibility? I mean, you were told and basically threatened
by the--Mr. Lindsay that--``Don't talk about this.'' Did you
believe that you might have a broader responsibility to the
public to mention this to someone?
Ms. Lambuth. Yes, I did. As I said, though, I was only on
this project for a short period of time. I had some knowledge,
because I guess it was basically 6 weeks that they left me on
the project before they removed me. They removed me from that
project. But----
Mr. Hutchinson. Was this the nature of some of the
discussions at Starbuck's? And I'll go to someone else, if you
want to comment on this.
Ms. Lambuth. Most--yes, most of our discussions were over
in the park. We went to Starbuck's a couple of times. But it
was basically how are we going to handle these issues. When we
found out other bits of information, what was our next approach
going to be? How was the best way to handle it? What kind of
information did we need to turn over and ask the Government
for?
Mr. Hutchinson. Let me interrupt you there--and anyone else
can comment on this. The people who participated in these
meetings in the park where you had discussions about, one, you
had a technical problem. And I'm interested also just as to
what the thinking was at that time. Was there concern about the
public interest, about the independent counsel and whether this
is a cover-up? Was there any discussions about that as to the
seriousness of this matter and the importance of it?
Mr. Haas. That was not typically the purpose of our meeting
out there. We would go offsite to the park, as she mentioned,
to have technical discussions. And I don't believe at any time
during any of the offsite meetings we discussed the fact that
the public wasn't going to be made aware of this. We were
really working the technical detail of the problem. We weren't
out there having offsite discussions about the global problem.
We were fixing specific details.
Mr. Hutchinson. Does everybody agree with that?
Ms. Golas. Yes. We weren't provided any place that we could
go to work, and so this was our place where we would go to have
discussions. We didn't have any equipment, so we really
couldn't do a whole lot of testing, so it was really difficult
for us to come away with any conclusions in any one period of
time, so we had a number of meetings.
Mr. Hutchinson. I yield to Mr. Souder for----
Mr. Burton. The gentleman's----
Mr. Souder. But it is important, because earlier on the
record they all said that they privately had speculated about
the things that Mr. Hutchinson is asking.
You said you had private discussions speculating about what
was in these documents, whether these documents might be
called, and you all pretty much said that earlier.
Mr. Spriggs. Just to clarify, we were not ignorant of the
things that were going on around us, but the focus of our
attention--I mean, we are there to solve a technical problem,
but we are not ignorant of or ignoring the broader implications
of these things. It is that, from our point of view, we are--we
have a certain function to provide here, and I don't give
counsel to the President and I don't--you know, those broader
issues are Government issues. It's Government's responsibility
to do certain things. And they tasked me to do specific
technical things for them. They don't ask me, they don't hire
me to be a consultant in a broader context, as you seem to be
expressing.
Mr. Burton. We'll have another round in just a moment.
Mr. Hutchinson. Thank you, Mr. Chairman.
Mr. Burton. Yes. We'll come back in just a few minutes.
Mr. Waxman.
Mr. Waxman. Thank you very much, Mr. Chairman.
I want to make several observations about the testimony so
far.
There are times when members of this panel are hoping for
specific testimony to be delivered, but we can't reach
conclusions based on what we hope you'll say. We're limited, or
we should be limited, by the facts. The facts are some things
we know and some things we are hearing from you to illustrate
for us what the facts are.
I think one objective fact is that there is a disagreement
among members of this panel as to whether jail was threatened.
It is clear to me that Mr. Haas honestly believes that it was
said to him that he could go to jail if the information were
made public. Others don't recall it, but----
Ms. Lambuth. I recall it. I stated for----
Mr. Waxman. Excuse me. I didn't say that you didn't. I said
some people recall it, others do not recall it. Let me just put
it this way: some of you think that you were threatened with
jail if you told the information, others don't. Ms. Lambuth
certainly does. Mr. Haas sincerely believes it. As I
understand, Ms. Salim doesn't recall it.
Ms. Golas, what was your testimony?
Ms. Golas. I believe that they used the word ``jail'' in
reference to not complying.
Mr. Waxman. Is it fair to say that what all of you do
understand is that Mr. Lindsay wanted to keep this matter
quiet? Is that a fair statement? Does anybody disagree with
that?
[Heads nodding affirmatively.]
Mr. Waxman. OK. You're all shaking your head.
Mr. Hawkins. That's correct.
Mr. Waxman. OK. Now, Ms. Lambuth has said that she thinks
the e-mails involved Filegate, campaign finance abuse, sale of
Commerce Department trade secrets, improper activities by the
President. Is that right, Ms. Lambuth?
Ms. Lambuth. That's correct.
Mr. Waxman. And she also said her source for that
information was Mr. Haas. Now, Mr. Haas has denied ever telling
her that the e-mails involved Filegate, campaign finance
abuses, sale of Commerce Department trade secrets, etc. Is that
right, Mr. Haas?
Mr. Haas. That's correct.
Mr. Waxman. OK. So we have a conflict of testimony as to
that whole issue.
Now, on the question of the White House response, Ms.
Lambuth seems to disagree with everyone else on the panel about
whether Mr. Lindsay was dragging his feet.
Ms. Lambuth, you were terminated by Mr. Hawkins in July
1998.
Mr. Hawkins. That's not correct.
Mr. Waxman. She was not terminated in 1998?
Mr. Hawkins. No, sir, she was not. Northrop Grumman does
not terminate our subcontract employees. I removed her from the
contract for several reasons, not just this one reason.
Mr. Waxman. What were the reasons?
Mr. Hawkins. Failure to follow management directives,
failure to stay within compliance of the contract, failure to
be able to work cohesively with her direct manager.
Mr. Waxman. And that was July 1998?
Mr. Hawkins. Yes, sir, it was.
Ms. Lambuth. I was threatened not only by the Government--I
mean, I was threatened two different ways. I was threatened
that if I did talk I would end up in jail and be fired--be
fired and end up in jail, and I was also threatened by Mr.
Hawkins that if I didn't talk to him that I would be removed
from the contract and he would try to get me removed from
CEXEC.
Mr. Hawkins. Can I respond to that? That is absolutely
untrue, absolutely, positively untrue. She was never threatened
with her job. I cannot do that. That was not within my roles
and responsibility. Her manager and I had several conversations
prior to this event about removing her from the contract, and
that is for the record--several discussions. So this was just
the straw that broke the camel's back.
When Ms. Lambuth was called back to EOP the evening that I
found out, she did not want to come back. I asked her to come
back.
Ms. Lambuth. That is not correct.
Mr. Hawkins. Let me finish, please.
Ms. Lambuth. Sorry.
Mr. Hawkins. I then very specifically asked her what was
going on. She told me she could not do that. I reminded her of
our responsibilities as contractors to the U.S. Government that
the COTR and only the COTR could direct our work force, and
that had to come through the program manager.
Under no circumstances was she told that she was going to
be fired or terminated. That was never said.
Ms. Lambuth. I disagree with that, obviously.
First of all, I talked to Sandy before I ever talked to
Steve, and I told Sandy just to hang tough, I was on my way
back. Then I talked to Mr. Hawkins and told him I was on my way
back.
Mr. Waxman. Let me ask----
Ms. Lambuth. When----
Mr. Waxman. Excuse me, because my time is just about over
and the chairman said he's going to indulge me because we've
indulged other Members with a few extra minutes, but what I
don't understand, Ms. Lambuth, is you thought you were being
told you were going to go to jail if you made any information
public, but you also said you thought that the White House was
trying just to correct the problem and then later you reached a
different conclusion.
That sounds to me somewhat inconsistent. Can you clarify
that?
Ms. Lambuth. No. What I said was that we were threatened
that if any of us talked we would lose our jobs, we would be
arrested, and we would go to jail, and I truly believed that.
Mr. Waxman. But you thought the White House----
Ms. Lambuth. In the beginning--may I finish?
Mr. Waxman. Yes, but you thought the White House----
Ms. Lambuth. In the beginning----
Mr. Waxman. But you thought the White House was----
Ms. Lambuth [continuing]. When I started working with Mr.
Lindsay on this project, we and I, myself, but the team really
felt that they were trying to come up with a method of
introducing this to the public. I did state--and I still
believe it to this day--that they started dragging their feet
for any of this to take place, to reveal to the public that
this was--in fact, that these e-mails had been found and to
allow us to come up with a way to produce these e-mails.
Mr. Waxman. Just for the record, if you left in July 1998,
you weren't there when presumably you think the White House was
dragging their feet----
Ms. Lambuth. No. They were dragging their----
Mr. Waxman [continuing]. Because that was afterwards.
Ms. Lambuth [continuing]. Feet before I left, because I
couldn't get any answers on this particular project.
Mr. Waxman. Thank you.
Mr. Hawkins. Mr. Waxman, could I elaborate one point? To
collaborate the truth of any statements, Ms. Kathy Gallant can
substantiate our conversations between Ms. Gallant and myself
about the reasons Betty was removed from EOP.
Mr. Burton. OK. Thank you.
Mr. LaTourette, I have not used my first round after the
initial 30 minutes. I will yield to you because you have to go
manage the floor. You're going to be managing the floor on the
House?
Mr. LaTourette. Thank you. I----
Mr. Burton. So we'll yield to you for your second round,
then I'll come back and do my first.
Mr. LaTourette. I thank everyone for the courtesy. I have
to go preside over the budget proceedings at 2.
We sort of diverted into a discussion about why Ms.
Lambuth--I don't care, to be honest with you.
I would like to go to Ms. Golas for a minute. You don't
appear to be--having watched you here--the insubordinate type,
and so I'm curious about how it is you reached the conclusion
to be in a position where your supervisor, Mr. Hawkins,
considered you to be insubordinate. Could you describe that?
How did that happen?
Ms. Golas. Well, I came out of a meeting. I was in my
office working on a problem. The COTR came in and--with another
one of the Government workers. We had a problem that I had been
working on simultaneously, and he started to ask me what was
going on, and I said, ``I'm working on a couple problems.'' And
he said, ``Well, I need you to stop and fix this.'' And I said,
you know, ``I'm working on these other things, too.'' And he
said, ``Well, what are you working on?'' So I explained to him
that I was working on another something else, and something I
couldn't go into any details with him.
And then he got really abrupt and said, ``Tell me what
you're working on.'' I said, ``I'm not at liberty to say
anything.''
So he said, ``I want you to go down--come right down with
me to Steve's office.'' So he followed me down--so I followed
him down to Mr. Hawkins' office, at which point he tried to
explain to Mr. Hawkins what was going on, and then he--of
course, Steve didn't have any idea. Nobody had any chance to
really say anything.
And the next thing you know, Steve was yelling at me
because the COTR was trying to give me orders to do something
and I'm confused and perplexed. I was doing, I felt, what was,
I believed, investigative work for a problem. I didn't believe
it was out of scope. I felt uncomfortable that the COTR was in
my office trying to give me direction.
And so now I've got the COTR, who I'm not supposed to tell
what I'm doing, and I have Steve standing in front of me
yelling at me, and I just finally--he said, you know, ``You're
bordering on being insubordinate.'' And I just said, ``Well, if
it's a choice of being insubordinate or going to jail, I guess
I'll be insubordinate.''
Mr. LaTourette. OK. And that's what I want to get to, that
you felt compelled, as a result of this set of circumstances,
to say, ``Look, I don't want to be insubordinate, but if I've
got to choose between being insubordinate to you or going to
jail, I am going to take being insubordinate to you.''
And how did you--you came to that conclusion as a result of
the conversations that you would have had with Ms. Crabtree and
Mr. Lindsay?
Ms. Golas. Yes.
Mr. LaTourette. You were concerned and fearful that if you
discussed with----
Ms. Golas. I was very concerned. I've worked in
environments before where things were classified.
Mr. LaTourette. Right.
Ms. Golas. It's not necessarily all for your manager if he
doesn't have the same classification to know everything that
you were doing all the time.
Mr. LaTourette. Right.
Ms. Golas. So I didn't find it unnatural to be in this kind
of a situation.
Mr. LaTourette. OK. And I--have I misread you? I don't--
you're not the insubordinate type, are you? This was a tough
spot for you to be in, wasn't it?
Ms. Golas. No. I'm not usually, I don't believe.
Mr. LaTourette. OK. Well, Mr. Hawkins is shaking his head,
too, so I guess we'll take that that you're not.
Mr. Hawkins, that takes me to you. Obviously, you then
became concerned as a result of this, and maybe some other
things that occurred, and concerned enough to go see Mr.
Lindsay and Ms. Crabtree?
Mr. Hawkins. I was summonsed to Mr. Lindsay's office by
Mark Lindsay.
Mr. LaTourette. OK. And was this the subject of the
conversation--that is that, you know, ``Hey, what, in fact, is
going on? The people that are under my supervision are saying
they can't talk to me?''
Mr. Hawkins. I'll characterize it as they wanted to know
why I interfered. Ms. Laura Crabtree was in the room at first,
and she basically accused me of interfering.
Mr. LaTourette. And let me stop you there. When you talked
to the majority staff, I believe, you recall a comment being
made to you by Ms. Crabtree that everything was fine before you
stepped in.
Mr. Hawkins. Absolutely.
Mr. LaTourette. Is that a direct quote from Ms. Crabtree to
you?
Mr. Hawkins. That was a direct quote.
Mr. LaTourette. OK. And at this time were you aware what
the problem was, that there was this e-mail e-server problem?
Mr. Hawkins. No, sir. I didn't have any idea, other than I
had a COTR breathing down my neck, I had a CO--the contracting
officer--telling me to stay in bounds of my contract. And,
first of all, as I told Mr. Lindsay, my contract was with the
U.S. Government and it was not with Mr. Lindsay nor was it with
Ms. Posey.
Mr. LaTourette. Did you ask either of these folks if they
had threatened these employees with jail, and, if so, why?
Mr. Hawkins. I did not go into that at that time. No.
Mr. LaTourette. OK. I thank you very much.
Mr. Hawkins. Right.
Mr. Burton. Did you go into it at any time with them?
Mr. Hawkins. No. After I stood my ground with Mr. Lindsay,
we didn't talk.
Mr. Burton. You never said anything to them about the
threats?
Mr. Hawkins. I did say it to Jim Wright, the COTR.
Mr. Burton. And what did you say to him?
Mr. Hawkins. I told him I didn't like the employees being
threatened. I also mentioned it to----
Mr. Burton. How was your understanding that they were being
threatened?
Mr. Hawkins. Well, Mr. Bob Haas, when he came down to the
office with Sandy--and I'll go on the record, Sandy would never
have been cited for insubordination. She was put in a very
difficult situation. But Mr. Haas was the person who told me
that these e-mails were very important to the political and the
subpoena issues going on at the time, and I personally had the
discussions with Dale Helms, the contracting officer, and Jim
Wright in telling them that I felt, because of the importance
of the subpoenas that we had been requested to turn over all
our documents pertaining to the President and Monica Lewinsky,
that this could lead to further problems for Northrop and our
employees. And I stood my ground.
Mr. Burton. So you told him, ``I don't want you threatening
my employees?''
Mr. Hawkins. Absolutely.
Mr. Burton. OK. But you knew that there had been a threat
of jail?
Mr. Hawkins. That came from Mr. Bob Haas. I did not--I have
no personal knowledge of the threats being given to them by
either of the parties.
Mr. Burton. But you heard that from Mr. Haas?
Mr. Hawkins. Yes, sir.
Mr. Burton. Mr. Haas, did you ever go to the office of
Sheryl Hall to discuss Project X?
Mr. Haas. Yes, sir.
Mr. Burton. Did you ever tell Sheryl Hall that you were
afraid for your life?
Mr. Haas. Afraid for my life? No. Afraid of going to jail,
yes.
Mr. Burton. You never told her you were afraid or feared
for your life?
Mr. Haas. No, sir.
Mr. Burton. OK. Did you ever provide her with any documents
relating to Project X?
Mr. Haas. Yes, sir.
Mr. Burton. And why did you----
Mr. Haas. She had requested.
Mr. Burton. She requested the documents?
Mr. Haas. Yes. I--in a working relationship such as we've
had around the EOP, this was after the disclosure of--with
Northrop Grumman's lawyers and more or less pulled us out of
the point where we didn't have to believe we were under threat
of jail, and Laura Crabtree had departed. Sheryl had asked me
some questions and called me to her office and was asking about
this because it seemed to be falling back under her purview, if
you will.
At that point in time, she asked me for copies of the list,
which is the 525 typed list, and I gave her what I had.
Mr. Burton. So you gave her, what, 525----
Mr. Haas. This list that is here----
Mr. Burton. But she asked for the list and you gave it to
her?
Mr. Haas. Yes.
Mr. Burton. OK. Did you ever save any search responses or
records on another electronic media, such as a zip drive?
Mr. Haas. Just the stuff I saved for the people with the
subpoena right now last week. I've never saved it on a zip
drive for anybody.
Mr. Burton. Never saved it on a zip drive or any kind of
electronic device that you might have had at home or something?
Mr. Haas. No, sir. I don't have a zip drive--I have a zip
drive at home that is currently broke, but I don't have any--I
just recently got a zip drive at work to record these documents
last week, but I don't----
Mr. Burton. The one at home, though, doesn't have any
information on it?
Mr. Haas. No, sir.
Mr. Burton. And you never took any information home with
you or anything and kept it?
Mr. Haas. No, sir.
Mr. Burton. Did you ever offer to Sheryl Hall----
Mr. Haas. I did not have that computer at the time this
happened, by the way.
Mr. Burton. OK. Did you ever offer to Sheryl Hall that she
could view any of the search results from searches that you
performed?
Mr. Haas. No, sir.
Mr. Burton. You never did?
Mr. Haas. No, sir. The documents in which I searched--as I
related to you, I read those two documents. The rest of it was
turned over in paper format and went to wherever it went.
Mr. Burton. So you never offered Sheryl Hall that she could
read any of the search results from the searches you performed?
Mr. Haas. No, sir.
Mr. Burton. Did you ever tell Sheryl Hall anything to the
effect that if the results of the e-mail searches became known,
the results of the investigations would be different and other
people would go to jail?
Mr. Haas. No, sir. If anything related to that, we may have
had conversation, as we commonly did in her office, that if any
of the stuff that was subpoenaed, like Filegate and that, were
to show up in the search after all the documents were unloaded
into the ARMS system, that it would be a real boondoggle, or
something like that, but it was conjecture. It was not matter
of fact. I know of no documents that exist in that format.
Mr. Burton. Does any e-mail actually reside on the PCs of
the White House users, or does it all actually reside on the
servers?
Mr. Haas. There was at one point, right prior to finding
the problem--we were running out of disk space on Mail2. There
was an active project to replace Mail2 for improved disk space.
And at that point in time, a group of programmers that worked
with me would put together a methodology for archiving these
huge files that were on the server to their local C drive and
then deleting some of the mail off of the server copies so that
they could still have their more-or-less referential copy
available to them.
Mr. Burton. But the vast majority was on the outside
server, not on the PCs, right?
Mr. Haas. That's correct. One of the very first things that
happened when we discovered this issue about the non-records
management was I suggested that they stop immediately allowing
people to archive to their hard drive, because that followed
with deleting the documents off the server, and I didn't want
that to happen, either.
Mr. Burton. Therefore, if someone searched their PC in
response to a subpoena, they wouldn't capture any of the e-mail
that was on the Mail2 server; is that correct?
Mr. Haas. Other than those people that had made archived
copies on their machine, which there were a few, that should
have searched it, as well as part of the requirement, they
would not normally search their server.
Mr. Burton. So the fact of the matter is, then, that there
is a lot of this that was not on the personal PCs that these
people have; it's all on that outside server.
Mr. Haas. Yes. I would say 98 percent of it is on the
server.
Mr. Burton. OK. I thank the gentleman.
Who is next? I think Mr. Souder.
Mr. Souder. Thank you.
I have a couple of followups that I have been trying to
keep track of.
Mr. Haas, you said early on that, when you had done the
Monica requests on downloading her PC, that it would require
special programming to cross-reference, that that was a very
complicated thing and that it would require special
programming?
Mr. Haas. To search more than one file at a time would take
programming. Yes, sir.
Mr. Souder. And, as I understood, you said you were
surprised that that request never came?
Mr. Haas. Well, considered--the timeliness of the Monica
Lewinsky search that I did manually coincided with just a few
days before, I believe, she testified. I'm not sure, but it was
coming up that somebody was testifying in the Monica Lewinsky
case. And I thought it was pertinent that somebody would ask us
to go in-depth. Once we found one, let's find them all and come
up with some method, but it never came.
Mr. Souder. Because you suspected that there might be
things there that wouldn't be backed up elsewhere in the
system?
Mr. Haas. Yes, sir.
Mr. Souder. Could you explain why something--how that
works? Why something would have been that you might have come
up with something in that programming that wouldn't be backed
up anywhere else?
Mr. Haas. If they were willing to accept the type of
printouts like we had done when Betty was requested to print it
out, that's not an ARMS search.
If you can imagine--if we searched that one file and found
400 or 500 documents, let's say we found 25 people, that's a
lot of paper somebody has to read, and I don't know--I assume
that you have the resources to hire people to read it, but it
is not the kind of format you want. But I suspected if they
went through and looked for it and they found a huge amount of
it, it would be pertinent to the testimony.
Mr. Souder. Because it wouldn't be anywhere else?
Mr. Haas. I have no way of knowing that it is not anywhere
else. All I can refer to is the fact that in all of these mail
files I looked through, I found significant numbers of
documents showing in a view that said they never made it to
ARMS. If they made it through secondary and third-level
processes, I have no way of knowing that.
Mr. Souder. We are going to hear, apparently, in the second
panel that all this stuff was available elsewhere. How would
they know if they--if your search on that limited number of
Monica documents is the only thing that they checked?
Mr. Haas. I would have no knowledge of how they would sit
here and testify to that.
Mr. Souder. Is it plausible that everything--in other
words, what you describe as a programming method, they could
have checked Monica and campaign financing or trace different
names--John Huang, Charlie Trie, anything we wanted to? Is it
plausible that everything--that this missing gap, which I
understand that's small, that is incoming e-mails that aren't
CC'd to anybody else, is it plausible that every one of those
incoming e-mails is backed up somewhere else in the system?
Mr. Haas. No, sir. They are on that server, and, unless
there is a process to search them, they won't be recovered, you
know, taken all the criteria you gave me, and there's no other
system that will reach in and pull them out.
Mr. Souder. Mr. Barry.
Mr. Barry. I think, Bob, you're missing something about the
fact that if the e-mail is in Betty Currie's, for instance, e-
mail file, and she gets the memo on her desk to search relative
to the subpoena, we--I know I always go through my e-mail file
and search relative to a subpoena apart from an ARMS search. So
she would--I'm assuming maybe Bob is overlooking that. I'm not
sure.
Mr. Souder. We are getting to a crux of a real difficult
question, but I want to ask another thing here, and that is: is
it possible, based on the fact that, instead of following the
normal kind of chain of command inside a civil--a contracted-
out service that previously had been Civil Service, and
Schedule C appointees--that is, political appointees of the
White House have now interjected themselves in a contract
process, and clearly now, in retrospect, certainly stonewalled
during a very critical time of 1996 to 1998, is it plausible,
because of the way I understand the backup system, is it that
instead of the system scooping up these e-mails every few
minutes, they were being duplicated at night in individual
computers many hours later. Is it plausible that, given the
fact that political appointees had come in and now were
knowledgeable of this, that other political appointees in the
White House realized there wasn't a backup system for a number
of hours and, in fact, could hit a delete button?
In other words, if there was an e-mail you did not want to
get and you didn't want to keep it in your personal file that
Mr. Barry was talking about, and you had knowledge that all of
a sudden the system was down and you weren't going to be backed
up if you deleted it in a short period, is it plausible that
that information could have gotten out?
Mr. Haas. The plausibility of that is, first of all, the
general knowledge of being able to delete it before it was
backed up, I don't know that that information was disseminated
outside of our floor of the building.
Mr. Souder. But what about that Mark Lindsay knew?
Mr. Haas. OK. That's--it wasn't disseminated by any of us.
Mr. Souder. I'm not accusing you. I'm saying political
appointees----
Mr. Haas. Is it--it's plausible that a person could receive
a document and hit the delete key and it not--if we just even
talk about one single document, absolutely it's possible.
Mr. Souder. Because a fundamental question that the
American people are having, and we in this panel, is, as I had
read the Government's documents that came over here, and what
we're going to hear later today is, ``Trust us.'' I tell you
what, the problem we have is the trust is gone, because it
doesn't prove anything, the fact that somebody could have
deleted something, but, in fact, based on the history of what
we are frustrated with, we are no longer willing to accept the
trust that if, in fact, there was the ability to delete
documents, then it is, to me, very disturbing, because the
political appointees, in fact, all of a sudden have a potential
motive for what happened in 1996, 1998.
That's different than proof, but the fact is that we don't
know.
Mr. Barr [presiding]. I thank the gentleman.
The gentleman from Florida is----
Ms. Lambuth. Could I say something?
Mr. Barr. Very briefly.
Ms. Lambuth. Yes. I was just going to say, if I remember
correctly, I think that there is, like, up to a 13-minute
period in here that mail can actually be deleted before it is
ARMS managed.
Mr. Souder. That's the normal.
Ms. Lambuth. Yes.
Mr. Souder. But when the system is down, wasn't it going to
be a whole day, roughly, until that evening?
Mr. Spriggs. To the extent that there actually were
instances where we received e-mail messages from a postmaster
account saying, ``Because of disk space limitations, please
delete mail messages, please delete files.'' We knew we had a
disk space problem on Mail2 and others. I mean, I'm on Mail5.
In our situation, we were actually given instructions, ``Please
delete these things because we're running into disk space
problems.''
Well, if you are on Mail2 and you received that instruction
and you delete it, whether you are a political appointee or
what, you just complied with a directive to delete mail
messages. You thought they were records managed, but, in fact,
they weren't.
Mr. Barr. The gentleman from Florida is recognized for 5
minutes.
Mr. Mica. Thank you, Mr. Chairman.
Well, it appears to me that you all had two basic missions.
One was to fix the problem that had been uncovered; that's
correct? And some of you are technical and were trying to fix
that problem; is that correct?
Mr. Haas. We have never--we've stopped the bleeding. We
have never fixed the problem.
Mr. Mica. OK. But there was a problem. It wasn't reporting
these.
Mr. Haas. That problem we fixed.
Mr. Mica. That problem was fixed. OK. Then it appears that
you had another role, which was to find--we're pumping out
subpoenas or requests for information, independent counsel, the
Senate, and others, so some of you were involved in the find
mission, and Mr. Haas has testified that you--and, Ms. Lambuth,
you said you had given him specific requests to find documents;
is that correct?
Ms. Lambuth. That is correct.
Mr. Mica. And so far the only thing--now, and then we
were--we have been requesting different documents, like
Filegate. You've said the Vice President's campaign finance
problems that we had asked--Waco, I guess, is another one, the
sale of Commerce seats. Did you--and you have testified that
you only were involved, Mr. Haas, in retrieving data on one
that you are aware of.
Mr. Haas. That's correct. I have never received a request
to look for anything but Monica Lewinsky.
Mr. Mica. Did you, Ms. Lambuth, ask anyone else to look for
any of these, or were they all on the fix mission and only Mr.
Haas on the find mission?
Ms. Lambuth. Mr. Haas was on the find mission, but Bob had
stated a few minutes ago--and if I recall directly--there were
four other names that were given that we were supposed to find
some information on, including go into their mailboxes to find
some information on Monica, and one of those was Betty Currie.
Mr. Mica. OK. That's agreed on. But here we have the
different folks asking for information. Were you just involved
in fixing and nobody else beside Mr. Haas in finding anything?
Ms. Lambuth. Mr. Haas--on this technical team that was
involved with this, Mr. Haas was the correct person to do the
find. He is--he was the Notes.
Mr. Mica. So the only thing that you were doing, Mr. Haas,
then--these requests were coming from us, and you only----
Mr. Haas. No, sir. No, sir. You're misunderstanding this.
During the beginning of the event, when we discovered an error,
short on, they asked us--someone asked Betty to ask me to look
in this specific place for these specific files, which was the
Monica Lewinsky. I found that and I've done no other searches.
I've received no other request to do any searches, even to this
day.
Mr. Mica. For anything else--Filegate----
Mr. Haas. Other than my own, personal searches of my mail
file that we do receive through the mail. But I've never been
asked to go back through anything else other than my file as
part of this project.
Mr. Mica. What happened to the request?
Ms. Lambuth. I don't remember it that way. I definitely
remember the Monica Lewinsky request for searches, but I still
believe that there were other requests for searches not too
long after that period.
You know, we get about 20,000 mail messages, approximately
20,000 mail messages a day. That's a lot of mail messages.
Mr. Mica. So there may be--now, the body from 1996, from
August 1996 to November 1998, there could be a huge body then
of e-mails that we've never seen or been requested or gone
after?
Ms. Lambuth. That's correct.
Mr. Mica. Is that correct?
Mr. Haas. That's correct.
Ms. Lambuth. Yes, that is correct.
Mr. Mica. Are we talking about thousands?
Ms. Lambuth. Hundreds of thousands.
Mr. Haas. Nobody has ever counted them. We don't know.
Mr. Mica. But you were able to go by hand and get some
things that were specifically requested, so there is a
capability of going back to those records. Are those records
still some place where somebody could go get them?
Mr. Haas. We don't know that, sir. They're on--we suspect
they are on tapes. The tapes have not been loaded and verified
to see that those files still exist. But understand what you're
going to get in a given tape is the data that existed that
moment.
Mr. Mica. But again, that body, that huge body, there's
only a small number of requests that were complied with that
you are testifying to. There could be this huge volume in that
timeframe, right, August 1996, to 1998.
Now, after 1998, we're--well, after 1998, I guess, November
1998, it didn't matter.
And I think Ms. Nolan has testified that there are 3,400
tapes or something in here. Is that where that information
would be?
Mr. Haas. I would suspect so.
Mr. Mica. And we think that that would have all the backup
information. But it is possible to go back and get some of the
things we requested, even if it had to be done, say, by hand?
Mr. Haas. Yes.
Mr. Mica. But you could also take these tapes and key them
for certain words and pull that information out, like we do on
our computers now?
Mr. Haas. One by one, by hand, yes. Sure.
Mr. Mica. Ms. Golas.
Ms. Golas. Yes. I think the thing that hasn't really been
brought out is that the mail messages aren't individual files.
OK? They are managed by Lotus Notes and they are in a data
base, and each user has a data base of their own. So it's not
as easy as just go executing a search.
Mr. Mica. So do we have two bodies? We have all of these
tapes, and then we have on individuals, too, or are they
combined?
Ms. Golas. Each individual's mail file, mail data base, is
on the tape as a file.
Mr. Mica. Yes. And you would think that would be complete?
They didn't have the ability to delete them, or they did have--
--
Mr. Haas. They did before it was backed up.
Mr. Mica. So there may be a huge body, and then there may
be a body of sort of missing----
Mr. Barr [presiding]. The gentleman's time has expired.
Mr. Mica. Thank you.
Mr. Barr. Thank you.
The Chair recognizes the Congressman from California for 5
minutes.
Mr. Horn. I thank the gentleman.
I think I am on the same task that Mr. Mica has been asking
you. Let me get it in another way.
Are the 500 people in the White House, OMB, etc., are they
all connected with your particular servers and all; is that
correct? Mr. Haas, let me ask you that.
Mr. Haas. Yes, sir. It is not OMB, first of all, it is--OMB
is on a second server.
Mr. Horn. Executive Office of the President, then.
Mr. Haas. Well, we have five servers, and different
organizations are spread across those five servers. We're
mainly talking about the Mail2 server at this point.
Mr. Horn. Now, let's just take one person that is in the e-
mail thing. Now, how much of a memory do they have in their
particular computer, or do you have the memory storage
capacity?
Mr. Haas. We have the grand total memory storage, which is
shared among all users on the server, and it is totally
uncontrolled. We have recently had people that exceeded a 1
gigabyte mail file just for their personal mail file, and it
has caused us great problem. The White House has decided not to
restrict the mail space.
Mr. Horn. So you're telling me that a person that has the
e-mail capacity through your program, they have how much
memory, if any?
Mr. Haas. They get it--everything they want. At the time
that this server was put up, I think we had 14 gigabytes total,
and now we're somewhere in the neighborhood of 100 gigabytes of
total disk space on Mail2, and it is up in the high end of the
80 percent full range.
Mr. Horn. Well, do we know and do you have a general idea
as to how much memory each person has and how much memory do
they have in a file under your control?
Mr. Haas. I have no clue what they have, themselves, on
their personal machine, but on the computer--on the printout
that I submitted from that that they have in here as testimony,
there is basically a report that tells you how many messages
they have in there, but it doesn't tell you in disk space size
how big it is.
Mr. Horn. Now, do we know on your system, the way it is
constructed, the degree to which you need a backup tape every
night? I'm from California. I'm used to earthquakes shaking
computers.
Mr. Haas. The Lotus Notes system and the backup tape system
that is used on it aren't totally compatible, so in that extent
every time you run a backup on the mail system you get a
complete backup. There is no such thing as--if you are familiar
with the term ``incremental backup,'' an incremental nightly
backup of a mail system is everything on that mail system.
Mr. Horn. Right.
Mr. Haas. And they were scheduled to be run every day, from
what I understand from the server group that does that.
Problems came about with tape drives being bad and all that, so
there are gaps in there, but I don't have direct knowledge of
that.
Mr. Horn. Now, if they had a file in your system, would
that be backed up in the evening before they go home?
Mr. Haas. Yes, sir. No. Before they go home? No, sir.
They're backed up--it usually takes almost a 24-hour cycle to
back the whole server up, so they're going on during the day,
during the night. Depends on what time of day the backup system
got to your particular mail file.
Mr. Horn. OK. But that is basically your process, to have a
backup system and to run it, what, every 24 hours?
Mr. Haas. It's not my process, but it is an established
process at the EOP to back up the mail servers every night, and
my understanding is if they can be done in a 24-hour cycle,
they will be done.
Mr. Horn. Now, Presidents usually like to build a
Presidential library. To your knowledge, has the President
said, ``Hey, I want all of these things maintained?'' This
could be way before any of Travelgate, what not. But wouldn't
they be saying, ``I'd like to see documents save, whether they
be electronic or written?'' Do you have that capacity?
Mr. Haas. My understanding is that backup tapes are not
used for that purpose at the White House; that the ARMS records
are the record for the Presidential library, and that these
tape backups--the whole tape backup scenario is only there for
catastrophic failure of hardware. It has nothing to do with
NARA and Presidential libraries or anything else. It is there
for recovery of a disaster.
Mr. Horn. Well, OK. Say you had real problems in the
electrical system in Washington, DC. Is the only thing you have
those tapes that you run systematically, or do you have them in
a cave somewhere, which is what a lot of corporations do?
Mr. Haas. I don't know. We don't take--none of us at this
table administer that system. It's done by what we call the
``server group'' at the EOP, but they're not in a cave, to my
understanding. I believe they are either in the basement of our
building or that they are stored at an offsite site that is
considered safe by standards.
Mr. Horn. Could a White House member scrub all of their
files if they had the key of access to the file in your
particular contract?
Mr. Haas. Any mail user on our system can go in and delete
their entire mail file at will any time, day or night.
Mr. Horn. Now, what happens to that file? Say they delete
it and they go and they have retired and they want to do
something else. Can a new party take in a specified file, or is
that too massive to identify?
Mr. Haas. Are you talking about where a person replaces
another person in their job?
Mr. Horn. I'm saying one person decides to get out of
there. They don't want to see that system again, and they can
take their file with them, and----
Mr. Haas. No, sir. We don't allow that. We have no way to
transport it.
Mr. Horn. Well, they could, you know, run a paper printout
on their files.
Mr. Haas. Yes, they're entitled to.
Mr. Horn. But I'm wondering, in the space of your computer
operation, the next morning somebody is hired could they take
that amount of space at all?
Mr. Haas. No, sir. Typically, there is a departure slip
filled out by the person leaving the agency, for whatever
reason. It goes through the normal processes and it is
submitted to the security group to delete the account when they
get to it. Sometimes they delete the account in a day,
sometimes it sits out there for 6 months before it gets
deleted, and only then--it takes 24 hours after that before
that space becomes available again.
Ms. Lambuth. Could I point----
Mr. Horn. Could that--as I understand it, the----
Mr. Burton [presiding]. Mr. Horn, your time has expired.
We'll have one more round here.
Ms. Lambuth. Could I add something to some known missing
backup tapes?
Mr. Burton. Sure.
Ms. Lambuth. Shortly after Project X was made known as far
as we discovered the problem, we were told--I was told--and I
did confirm by going back and looking at tapes--that there were
6 months of backup tapes that had been overwritten by some
previous backup processes.
Mr. Burton. Explain why that was done real quickly.
Ms. Lambuth. I don't know why it was done, but there was a
6-month period of time in 1997 of backup tapes that were
overwritten, and I believe that those dates were from June or
July 1997 to November 1997. Those backup tapes were
overwritten.
The other thing that the committee might want to be aware
of is that there is a very short shelf life. When I'm saying
``short shelf life'' on tapes, I'm talking a couple of years--
2, 2\1/2\ years of shelf life on tapes before they start to
disintegrate. So that needs to be known, also.
Mr. Horn. Mr. Chairman, I think that dialog shows that the
FBI does--and I know it has the capability to find out what was
on the previous tape, and it seems to me if you can find some
of the tapes there they could be gone through.
Mr. Burton. We will pursue that. We'll see if those tapes
can be looked at, even though they have been overwritten.
Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
Going back, Mr. Barry, to the incident report dated January
30, 1998--and I would ask unanimous consent to have that made a
part of the record, Mr. Chairman.
Mr. Burton. What?
Mr. Barr. I'd ask unanimous consent to have the document
handwritten at the bottom, which was delivered to me by Mr.
Barry just a little bit ago, dated January 30, 1998, 2:59 p.m.,
be made a part of the record.
Mr. Burton. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T9621.026
Mr. Barr. Now, I believe you testified, Mr. Barry, that
this report you sent to Mr. Wright?
Mr. Barry. Yes, sir.
Mr. Barr. And OA?
Mr. Barry. Yes, sir.
Mr. Barr. OK. And that was in late January 1998?
Mr. Barry. Actually, the date that is on the document is
what's called a ``modified date.'' I'm not sure exactly when it
was created.
Mr. Barr. Approximately that time, though?
Mr. Barry. Approximately, yes.
Mr. Barr. OK. In early 1998?
Mr. Barry. Yes.
Mr. Barr. There is another document here that was sent
over--and maybe, Mr. Young, you can tell us what this document
is. White House--W3, exhibit No. 7, talking points. Who
prepared those talking points dated March 7, 2000?
[Exhibit 7 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.042
[GRAPHIC] [TIFF OMITTED] T9621.043
[GRAPHIC] [TIFF OMITTED] T9621.044
[GRAPHIC] [TIFF OMITTED] T9621.045
[GRAPHIC] [TIFF OMITTED] T9621.046
Mr. Young. Are you asking me to testify, Congressman?
Mr. Barr. Yes, sir.
Mr. Young. I have no idea.
Mr. Barr. You have no idea?
Mr. Young. No idea, sir.
Mr. Barr. According, Mr. Barry, to White House exhibit No.
7, on page 5, by this apparently unknown author, there is a
question posed to an unnamed recipient: ``Were people within
the White House office ever notified about this problem?''
Answer: ``Yes, within a couple of days after OA became aware of
the error, Virginia Apuzzo, head of OA, sent a memo to Chief of
Staff John Podesta.''
Obviously, at least some people in OA--we don't know who--
were aware of it before then, because the memo that is referred
to by this unknown author to an unknown recipient, for which
Mr. Young professes no knowledge whatsoever, even though he is
from OA, is dated June 19, 1998, White House exhibits 3 and 4.
[Exhibits 3 and 4 follow:]
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[GRAPHIC] [TIFF OMITTED] T9621.050
Mr. Young. I am familiar with that document.
Mr. Barr. Pardon?
Mr. Young. That document I am familiar with, your question.
Mr. Barr. Hallelujah.
The White House did address this issue, at least to some
extent, in June, some 5 months later.
What is also interesting is my information that just a few
days before this memo on the record dated June 19th, which
purports to address the problem, just a few days before that,
on June 11th, there was, in fact, a message that instructed
people to delete old, unneeded e-mails.
This, I think, if I might speak for some of the other
Members here, is why one--highlights one aspect of this that is
so disturbing to us. Even though OA was aware of this problem
early in the year, very early in 1998, apparently, for some
reason--and it might have to do with subpoenas that were being
issued or the Office of Independent Counsel's work with regard
to Ms. Lewinsky--and I think Mr. Souder was getting to this,
also--the problem with deleting information and e-mails during
this particular window in time where there is no backup.
On June 11th, White House people are directed to delete
old, unneeded e-mails. Now, under certain circumstances, that
might just be a coincidence, but it is very suspicious, because
then, just a few days later, despite the fact that OA knew
about this problem for many months, then they put something on
the record purporting to say, ``Hey, we have a problem and we
ought to do something about it.''
Does this strike you as odd, Ms. Lambuth, the timing of all
of this?
Ms. Lambuth. Well, I think it is odd, but we were
definitely running out of disk space, and I, personally, had
gone to OA and, after talking with Bob and some other people,
the fact that we were in critical way as far as space.
One thing that you've got to realize about a server is if
it runs out of space you can't turn it off and bring it back
up, because it is still out of space, so everything on that
server is lost.
It did take some doing to get permission to send out the e-
mail, and it was worked before Virginia would even allow the e-
mail to be sent out.
If I remember correctly--I'm not sure it is on this one,
but there were several that there were--when we would go in and
finally were allowed to delete some mail messages for the
people, would could only do it if it was prior to a particular
date--I don't remember what any of those dates were--but we
were in a critical situation.
If anything, I would say is, knowing what the situation for
storage space was on the mail servers and knowing that there
are no rules about people can only have a certain volume for
storage for e-mail, that they can only keep so many e-mail
messages, etc., that there should have probably been a little
bit more done to secure additional servers or for storage
space, because, again, if you run out of space you've lost
everything and you won't be able to get it back.
Mr. Barr. Right. And, Mr. Haas, when did you do your search
of the user names for e-mails from Monica Lewinsky?
Mr. Haas. For the documents? That was--we started this
project on, I guess, the 15th--12th to 15th, that timeframe,
when we actually started working.
Mr. Barr. Of?
Mr. Haas. June 1998. I'm sorry.
Mr. Barr. June.
Mr. Haas. June 1998. I'm sorry.
Mr. Barr. June 1998, also?
Mr. Haas. Yes. And I would guess it was probably 2 or 3
weeks into my work that they asked me to do it, so it was,
what, somewhere around June 30th that I was asked----
Mr. Barr. Somebody wanted to find out what was there?
Mr. Haas. Specifically, I guess. I mean, why--they came
down with a request to look for these and look here, so----
Mr. Barr. Was it around the same time files were being told
to be deleted.
Mr. Waxman. Regular order, Mr. Chairman. It seems like
Members have 5 minutes and they ought to stay within it so we
can give this panel a break and get on to the other two.
Mr. Barr. I think the record will reflect those dates that
they're approximately the same time period.
Mr. Burton. The gentleman's time has expired.
I have some time. If we need, I'll yield you my time.
Mr. Souder.
Mr. Souder. Mr. Chairman, I've had two rounds.
Mr. Burton. All right. Do you have further questions? This
is the third round. Do you have any further questions? If not,
we'll----
Mr. Souder. Yes, I do have a couple of----
Mr. Burton. OK. This is going to be the last round for this
panel.
Mr. Souder.
Mr. Souder. I wanted to repeat just for the record, on the
525--I was going through the names--this includes Bruce [sic]
Lindsay, Cheryl Mills, Betty Currie, Erskine Bowles, Doug
Sosnik, Rahm Emanuel, Nancy Hernreich, John Podesta, Bruce
Reid, Marsha Scott, Lanny Breuer, Sidney Blumenthal, Paul
Begala, as well as the Presidential files. The 525 are not
insignificant. We've dealt with these for the last number of
years. In particular, we have been seeking information in 1996
to 1998.
I also was particularly disturbed about this backup system
and trying to understand it. I'm sure we're going to debate
that in the next couple of panels.
I also wanted to followup on one thing that was said
earlier today that I didn't fully understand, and that is it
seemed that the panel seemed to feel that the request by the
White House counsel to let you look at the--to give him some
time--maybe Mr. Hawkins could--well, you weren't directly
involved. Let me ask Ms. Lambuth, and I think several of the
others of you said that you felt the request was not
unreasonable that they wanted some time. I know Mr. Spriggs
said that.
Given the fact that--why would that not be unreasonable? In
other words, why wouldn't that be immediately reported that
there was a problem with the system? Why would you have felt
that you had to go to a park across the street or to Starbuck's
anyway? I mean, if there's a problem with the system, who would
you be hiding from?
Ms. Lambuth. I didn't feel that it was unusual, knowing the
circumstances of all the subpoenas, for them to say, ``OK, we
acknowledge that there's a problem.'' As I said a few minutes
ago, ``Let's--give us some time to see how we want to approach
telling the public that we have found these additional e-
mails.''
I've also reiterated several times throughout the day that
to me, especially, it became very apparent that that was not
what the intent was. The intent was to basically stall this
whole process, to keep it from happening, because I couldn't
get various things done, I couldn't get meetings when I
requested meetings with the people that were supposed to be the
only ones that could even give me direction on that.
Mr. Souder. So, as this time period drew out, you had
doubts, but let me go back to the beginning. I still don't
fully understand why you felt you couldn't discuss this on
White House or in your work ground, why you had to go across
the street.
Ms. Lambuth. Well, Sandy said it, Ms. Golas said it a
little bit earlier. We really had no space in which to work. We
had none of the equipment that we really needed to do this,
even though we had given them specs.
Mr. Souder. Wait a second. I'm sorry. I need to followup.
You're saying that there was more space at a Starbuck's and
across the street in LaFayette Park than in the White House? I
mean, this isn't plausible. I mean, people are watching on TV.
They're going to watch the C-SPAN of this, and you're saying
that in the entire White House and Executive Office Building
they don't have a room that you could go to, but that you could
get a table at Starbuck's or a space in a public park out there
that you couldn't get in the White House? That's just not
plausible.
Ms. Lambuth. It had been stated before that we often went
to a very large room on the second floor and had meetings, but
it was also stated that that was inside of the smoking area and
people would stand outside the windows and watch.
Most of you--if you've ever been to the new Executive
Office Building where our offices were, the walls are very
thin, and anybody can be standing outside the door and hear
what's going on, and we were specifically told that nobody else
was supposed to know about this information, and so we thought,
for confidentiality, that we couldn't go into my office. People
stood--could stand outside the door. It was also a very small
office. John and Sandy's office was a thoroughfare for people
cutting from one hall to the other hall, even when the doors
were closed.
Mr. Souder. I mean, it wasn't that you couldn't find space
somewhere in these big Federal buildings?
Ms. Lambuth. It was for security more than not finding
space.
Mr. Souder. And so that you were afraid of who seeing you
in the White House? See, that's what is hard----
Ms. Lambuth. It wasn't who seeing us, it was who was going
to hear this. We had been----
Mr. Souder. Who were you afraid in the White House would
hear you? In other words, if what you're doing is just trying
to fix the system, what White House personnel or Executive
Office personnel would you be afraid of hearing you?
Ms. Lambuth. If we were talking about specific mail records
that were lost, and somebody says something to a friend of
theirs over a beer that night, ``Oh, I heard today that there
are other additional--'' and that leaks to the paper, then that
comes back to us that we leaked this information. We had been
threatened. If we leaked any information, we would lose our
jobs, we would be arrested, and we would go to jail. It was a
very legitimate concern on our part.
Mr. Burton. The gentleman's time has expired.
Mr. Mica.
Mr. Mica. Thank you, Mr. Chairman.
When I ended my questioning, it appeared that we have
basically hundreds of thousands of e-mails that are somewhere
and have never been seen. We have the possibility of individual
user files that could have information or could have had
information deleted. Is that correct?
Ms. Lambuth. Again, I mentioned we get in excess of 20,000
e-mails a day, so over that period of time, even calculating
roughly, it is over 100,000 e-mail messages.
Mr. Mica. My concern also is that, of course, some of these
records were under subpoena, and you're saying you felt that
this was being stalled to provide the information. You all sort
of were told in secret to--I mean, to be secretive about this,
not discuss what's going on.
You have Mr. Hawkins, who is the contractor responsible for
the billing and all, wondering if these folks are off the
reservation. It could be embarrassing to--it could have been
very embarrassing to your company to have--well, you were
trying to make certain that they were on the reservation and
complying with the contract, right?
Mr. Hawkins. Yes, sir.
Mr. Mica. OK. It could have been very embarrassing to
Northrop Grumman if the public knew what they might have been
involved in. But you did--at some point, you did seem to find
out what they were involved in, didn't you?
Mr. Hawkins. Yes, I did.
Mr. Mica. You did. Even though it was secret?
Mr. Hawkins. Well, I made that point when I met with Mr.
Lindsay. He told me he wanted to keep this a secret, and I
said, ``Some secret we've got here, with about 10 people I knew
had it.''
Mr. Mica. But you were also sort of cutoff by Mr. Lindsay
when he told--you didn't go back to Mr. Lindsay after your
conversations; is that correct?
Mr. Hawkins. No, sir. I had the proper counsel working it.
Mr. Mica. Well, we may never know what we didn't get in
this. Some of it was to fix the problem, some of it was to
find, but it appears that we only found a limited amount.
Last Friday, the committee received a letter from the White
House counsel, Beth Nolan, in which she wrote, ``There was a
new, unexplained problem with the e-mail in the Office of the
Vice President,'' and that's exhibit GR-2, page 6, second
paragraph.
It just says that, ``In the course of gathering these
preliminary facts--'' I'll read it--``concerning the
configuration error, we were informed this week that the e-
mails on the server of the Office of the Vice President have
not been fully managed by ARMS. We are still in the process of
determining the scope and time period involved. The Office of
Vice President does maintain backup tapes of its server.''
So now it appears that there is also a problem in the Vice
President's office. Are you aware of this?
[Exhibit GR-2 follows:]
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Ms. Lambuth. Yes.
Mr. Mica. You are?
Ms. Lambuth. Yes, I am.
Mr. Mica. Everyone else is aware of this?
Mr. Haas. We're aware that they are doing something
different with records management. We don't--aren't directly
charged with records management of the OVP.
Mr. Mica. Now, if we wanted information from the Vice
President's office, is there a possibility some of this could
be missing? It says, ``The Office of Vice President does
maintain backup tapes of its server,'' so that's--everything is
going to be there? would that be the case?
Mr. Haas. You would have to contact the Vice President's
office for that information.
Mr. Mica. You wouldn't know?
Mr. Haas. I don't know.
Mr. Mica. Would anyone know if he has a similar system, or
are we going to find another case in which there are documents
not available?
Do you know anything about this, Mr. Spriggs?
Mr. Spriggs. Yes, sir, I do somewhat.
Mr. Mica. Could you explain?
Mr. Spriggs. The Office of the Vice President, when they
deployed their Lotus Notes server, decided to employ a non-
standard, if you would, non-EOP records management system using
tape backups, and----
Mr. Mica. When was that?
Mr. Spriggs. That was as early as--my understanding, the
server was created in 1994.
Mr. Mica. OK.
Mr. Spriggs. So their server predated the EOP OA servers.
But at that point the records management system that they chose
was, again, this tape backup methodology. Again, what they have
on their side, on the OVP side, was not our concern for a
number of years, up until--in March 1998, I was put on a
project by Betty Lambuth specifically to move the Office of the
Vice President's server, called OVP-underscore-1 into OA IS&T
control facilities.
I worked with Ms. Crabtree and others to put together a
plan to move that equipment into this OA space, and at that
point, when we executed it at the end of March 1998, the server
was turned on, the users were up and running on it. The
question of records management apparently had not been resolved
at that point.
We, OA, began to do the backup systems for the OVP-
underscore-1 server, but at that point I'm not aware of any
instructions to do records management by that same method for
the OVP.
My understanding is that by July 1999, we were given
instructions--Jim Wright gave instructions to actually start
doing a 3-week cycle on the backups for all of our servers,
which included the OVP-underscore-1 server, so that now we are
on a 3-week cycle. Every 3 weeks they overwrite the existing
tapes. And so if OVP is doing records management with tape
backups, then they have a problem.
Mr. Mica. Thank you.
Mr. Burton. The gentleman's time has expired.
Mr. Horn.
Mr. Horn. Thank you, Mr. Chairman.
I'd like to ask you, Ms. Lambuth, you said there were
20,000 e-mails a day. Now, was that limited strictly to the
Executive Office of the President, or could outside parties
within the Government or outside send e-mails into that system?
Ms. Lambuth. There were approximately--if I remember
correctly, there were 20,000 or so e-mail messages that came in
through e-mail each day. That was not limited to just within.
Mr. Horn. OK. You're saying that 20,000 could come from
people, or was that put into a different e-mail system?
Ms. Lambuth. There were different e-mail systems that, for,
like the President, people sending through the Internet, their
Internet mail, what we called--well, the President, the Vice
President, and the First Lady got e-mails from outside. That
basically was--came through. The file was then sent over to
their various offices, and then the files ran through, if I
remember correctly, a WordPerfect process that allowed them to
view and search those files.
Mr. Horn. In other words, those three categories--the
President, the Vice President, the First Lady--had an e-mail
system that didn't necessarily go through your system; is that
correct?
Ms. Lambuth. The Internet mail did not go through that
system.
Mr. Horn. Well, if they had----
Ms. Lambuth. If I remember correctly.
Mr. Horn [continuing]. Personal friends, I assume they gave
a code to their personal friends as to how to reach them.
Ms. Lambuth. I can't answer to that.
Mr. Horn. OK. Well----
Ms. Lambuth. I don't know.
Mr. Horn. Let me ask you, on firewalls within the system,
obviously, with hackers all over the world and the country and
foreign governments, also, did you have protection to keep
hackers from getting into the system?
Ms. Lambuth. Well, we had--yes, we did have a firewall. And
I'm having to really think back about the structure of this. We
had STORM, which basically helped keep certain types of e-mail
messages from coming through, or numbers of e-mail messages
coming through to shut the system down.
Sandy and John basically were the ones that handled this
particular area and kept a close watch on it and were notified
if there were problems with this.
Mr. Horn. I yield the rest of my time to the chairman.
Mr. Burton. Thank you.
I just have one real quick question for Mr. Haas.
Ms. Hall did not have anything to do with Project X, as I
understand it, so----
Mr. Haas. Not at the beginning.
Mr. Burton. So why did you go to Ms. Hall's office and talk
to her about that?
Mr. Haas. She was asking questions about it, and the direct
line of--the 10 years I've worked there, the period of time she
has been there, she has been, more or less, the top of my
working food chain, if you will, and she was asking me about
it, as I said, after we made disclosure to the Northrop Grumman
and were told we could now work on the project and talk to
whoever we needed to talk to.
When she asked the questions, I assumed it was in an
official capacity and I answered my questions to the best of my
ability.
Mr. Burton. So she asked you to come to her office and you
answered the questions?
Mr. Haas. Yes. I commonly stopped by there many times a
day. It is right in line with what I normally do.
Mr. Burton. OK. I'll yield to my counsel.
Mr. Wilson. You've been here a long day, so I'll be very,
very brief. Thank you. I've spoken with most of you. You have
been very cooperative. I greatly appreciate it. It has been a
long day, so I'll try to get to resolve three things.
Mr. Barry, when we spoke--and you were very forthcoming. We
appreciate that--you mentioned to us in January or February
1998 you had identified this anomaly in the Lewinsky e-mail
traffic, and you suggested that you wrote a report, and we have
just been furnished this.
Now, I wanted to ask you, do you know whether this document
has been produced to the committee?
Mr. Barry. All I know is I turned it over to counsel's
office.
Mr. Wilson. OK. Now, I only ask this--we'll go back and
check. We've checked three times now. And we're having a
hearing today about failure to produce documents, and we sent a
subpoena out last week. It was very, very clear. It wasn't
broad. It said specifically, because you told us that you had
this document, and you now knew where it was, we asked
specifically for the incident report that you prepared that is
this document, and it appears to us that, although documents
have been produced to us by the White House, we have not
received this copy.
I notice you were able to turn to your counsel and get a
copy from him immediately, so if there's anything you can help
us with this issue, to tell us whether you know anything about
why this document wasn't produced to us----
Mr. Barry. Like I said, I turned the document over to OA
counsel. That's all I know. I don't know where it went from
there.
Mr. Wilson. OK. We'll followup on that on our own time and
just double check to----
Mr. Barr. Excuse me. Would counsel--I'd like to just note
for the record that, contrary to all of the other documents
that counsel has reviewed and we have had available, this
document which I introduced into the record, because we just
received it today, does not bear any of the identifying marks
such as would indicate that we had received it.
Mr. Young. None of my documents would, Congressman.
Mr. Burton. Without objection, so ordered.
Mr. Wilson. The second thing I wanted to followup on was
something that you said, Mr. Haas, and it relates to a letter
we received from the White House at the end of last week. They
explained to us--White House counsel explained to us in great
depth that many of the e-mails from outside of the White House
complex would have been reviewed or searched in other ways, and
basically indicated that there probably wasn't much of a
problem because many of the e-mails that we're talking about
today, these hundreds of thousands of e-mails, have actually
been scrutinized.
One thing you said struck me as very important. You
indicated that the e-mails that are on the personal computers
of users in the White House don't stay there for a very long
time. You said, I believe, 98 percent of the e-mails would not
be reviewed if somebody were going back to----
Mr. Haas. I think you've got--I think you misunderstood.
There--98 percent of all the e-mails are on the mail server and
were subject to the error of the glitch of not being recovered.
Any person that had made a personal copy of their mail file,
not--they don't move--there is never, ever any mail, ``active
mail,'' as I call it, on your computer. You are looking through
a window using your computer at our server at all times.
If you choose to make a copy subsequent to looking at it,
it is always delivered to the server. If you choose to make a
copy down to your C drive and that is your local file and you
choose not to search it under subpoena, that's your thing.
Mr. Wilson. That point I understand, but that takes the
affirmative step of actually copying----
Mr. Haas. Yes.
Mr. Wilson [continuing]. The e-mail to preserve it.
Mr. Haas. Absolutely. It's----
Mr. Wilson. If you haven't taken that affirmative step, it
is not going to stay forever on your computer, it will go away.
So if somebody comes back 6 months later and asks you to search
for a particular type of information----
Mr. Haas. Not there.
Mr. Wilson [continuing]. It's not going to be there. So any
representation given to us that all of these documents would
have been searched in another way would only be correct if
people were able to--had affirmatively copied all of the
information and gone back and done the searches; is that
correct?
Mr. Haas. Or if they had actually done a mail search
manually on the server of their mail file and then printed them
off. Many other people I've talked to over the 10-years I've
been there said, ``We don't have to search our mail files.
That's done for us. We search everything else.
Mr. Wilson. And just one last question.
Mr. Hawkins, if I could followup on something you said, we
heard the story about how Ms. Lambuth and you have locked horns
on a number of issues, and it became clear that she would not
tell you what the scope of the problem was that people were
working on, and you were dissatisfied with that; is that
correct?
Mr. Hawkins. Yes, I was.
Mr. Wilson. OK. Now, you said--and I'll read back the
direct quote that you said--``that was the straw that broke the
camel's back''; is that right?
Mr. Hawkins. Absolutely.
Mr. Wilson. So I just wanted to establish one thing, and
that is that Ms. Lambuth did have a personnel action taken vis-
a-vis her remaining on the contract that you supervised; is
that correct? She was removed?
Mr. Hawkins. She was removed.
Mr. Wilson. Right. And so it seems that the position that
she was put in, being sort of made not to tell people and her
supervisors what was going on, actually had a relationship to
what happened to her in her employment; is that correct?
Mr. Hawkins. Let me characterize. I would suspect anyone
that has got any experience in a management role on a
Government contract, they understand compliance with that
contract.
Numerous times during the employment history at EOP, Betty
had to be counseled of stepping out of bounds, taking direction
from the Government employee.
It is very, very clear in the EOP contract that they take
directions from the COTR, which is given to the program
manager. These were--many, many times in my staff meetings I
had to continue to remind the employees there, because they
lose sight from day to day. They get alliances with some of the
Government employees.
Mr. Wilson. Right. I understand that, and I think you made
that very clear. But in this case it does seem that it is clear
Ms. Lambuth didn't inform you of the full scope of the problem
and that did have a bearing on how you reacted to her, and it
seems justifiably; is that correct?
Mr. Hawkins. Had we not had any prior problems, that would
not have been enough to have her removed from the contract,
period. Plain and simple.
Mr. Young. Mr. Wilson, I do believe that the document you
referred to is--and I understand in documents you can lose
sight of where they are--is ``E'' as in Edward, 2496. But thank
you very much.
Mr. Wilson. OK. Thank you.
Ms. Lambuth. Could I say something?
Mr. Wilson. Mr. Chairman, I did want to make that very same
point. So, if I might ask, E-2496 is identification of
documents that were submitted to this committee?
Mr. Young. I am told that that is the document to which
Congressman Barr was referring. That is correct. That's my
understanding.
Mr. Burton. We'll let the record so show.
Mr. Wilson. Ms. Lambuth, do you want to conclude?
Ms. Lambuth. Yes. In my defense I would like to say this: I
was often accused of aligning myself with one of the Government
supervisors. In reality, that particular Government supervisor,
Laura Crabtree, was the branch chief who I got--who had most of
my projects. About 95 percent of the work that I did for EOP
fell under her direction, and I basically was keeping her
informed of processes that were being done, trying to allow her
to know about issues so that she did not get broadsided, and
she was giving me other direction as far as other things that
they needed done or a particular project or why a project might
slip. And it was only in the course of my work that I was, as
was stated, so far--such as taking direction from a supervisor.
Mr. Souder. Mr. Chairman.
Mr. Burton. Mr. Souder.
Mr. Souder. May I have unanimous consent to ask a brief
questioning to Ms. Golas? It's something directly related that
I may have misunderstood----
Mr. Burton. Yes, briefly.
Mr. Souder [continuing]. To ask Mr. Lindsay.
You stated under questioning, I think, from Mr. LaTourette,
that you had dealt with classified material before; therefore,
you didn't--weren't surprised necessarily by the request. Did
they imply to you that this material was in any way classified?
Ms. Golas. No. Just really sensitive.
Mr. Souder. By ``really sensitive''--in other words, one of
the problems we've dealt with in this committee is that things
that were more ``really sensitive'' in political terms were
treated as if they were classified. So you just--you made your
own personal conclusion that this could be more like classified
material than anybody suggesting that to you?
Ms. Golas. Yes. No one ever used the word ``classified to
me.''
Mr. Souder. Thank you.
Mr. Burton. Let me just conclude by--this has been a long,
arduous task for all of you. We appreciate your coming, and
hopefully we won't have to bother you again, but we do
appreciate your being here today.
Mr. Fitton. Do you plan to call Ms. Hall, Chairman Burton?
Mr. Burton. We will take that under advisement. We have
another panel that is due right now.
Do any Members want to take a break here? If not, we'll go
ahead with the next panel, and if there is any need for any
break for anybody, we'll allow that, but if not let's go ahead
with the next panel.
We'll wait 5 minutes. We have a couple of people that need
to take a quick break, so we'll be no more than 5 minutes so we
can move ahead. No more than 5 minutes.
[Break.]
Mr. Burton. Raise your right hands, please.
Ms. Crabtree-Callahan. Mr. Chairman, may I ask a question,
please?
Mr. Burton. Yes.
Mrs. Callahan. May I be sworn in my correct name? It's
Laura Callahan, and it has been since September 1998 when I was
married.
Mr. Burton. Would you like it to be Laura Callahan or Laura
Crabtree-Callahan?
Mrs. Callahan. It's Laura Callahan.
Mr. Burton. Laura Callahan. OK. As Laura Callahan.
Mrs. Callahan. Thank you.
Mr. Burton. Raise your right hands.
[Witnesses sworn.]
Mr. Burton. Before I ask any questions, I'd like to make
one real quick comment, and that is that the committee has
conducted a lengthy investigation of campaign finance scandals.
Over 120 people have fled the country or hid behind the fifth
amendment when we wanted to talk to them. When we found out
about the e-mail problem, we asked people to come in for
interviews, and both of you agreed to come in. Then you
suddenly changed your mind and backed out.
I was very disappointed that you decided to do that. People
who work for the White House, Mr. Lindsay and others, we
believe should cooperate voluntarily with the Congress and they
should----
Mr. Kadzik. Mr. Chairman, if I could interrupt for a
moment.
Mr. Burton. No, you may----
Mr. Kadzik. It is incorrect----
Mr. Burton. Counsel, you may not speak before the
committee. You can speak through your client. You cannot speak
before the committee, and I'm making an opening statement. Your
client can respond when we get into questions.
Mr. Kadzik. Just so you don't state----
Mr. Burton. Mr.--what is your name, sir?
Mr. Kadzik. Kadzik.
Mr. Burton. You're not allowed to speak as counsel to the
witnesses before any congressional committee. You can confer
with your client, you can ask--tell your client what to say,
but he is the one that is supposed to respond.
We believe that the people at the White House should try to
cooperate and not keep information from the Congress or try to
stonewall us.
At any rate, we sent you a subpoena, and we're happy that
you're here, and I look forward to the answers to your
questions.
Ms. Crabtree, first of all, let me address you. When did
you have your first conversation with Betty Lambuth about the
problem with some incoming White House e-mails not being
properly managed?
Mrs. Callahan. Mr. Chairman, if I may please set the record
straight, first of all, to the best of my----
Mr. Burton. Would you pull the microphone closer to you,
ma'am?
Mrs. Callahan. Yes. First of all, to the best of my
knowledge, no one has ever approached me to ask me any
information up until this time, so I just want to make that
very clear that I have not declined any previous request for
information because no one has ever approached me prior to this
time for information.
Mr. Burton. OK. Do either one of you have opening
statements you'd like to make?
Mr. Lindsay. Yes, Mr. Chairman.
Mr. Burton. OK. Well, Mr. Lindsay, we'll let you go first,
then we'll get back to questions.
STATEMENTS OF MARK LINDSAY, ASSISTANT TO THE PRESIDENT AND
DIRECTOR OF WHITE HOUSE MANAGEMENT AND ADMINISTRATION; AND
LAURA (CRABTREE) CALLAHAN, CHIEF INFORMATION OFFICER,
DEPARTMENT OF LABOR
Mr. Lindsay. I would like, sir, just to first address your
first comment, and that is the refusal to provide or to
cooperate or come in for an interview. I was more than willing
and have been and was very surprised when I received a
subpoena, because there was a statement or belief on my part
that I was going to have an appointment to come in for an
interview. I would have had no objection whatsoever to coming
in to an interview, and it was my understanding that my counsel
talked to--when I acquired counsel, they talked to the
committee's counsel, and then the next communication was that
we were going to be--where should service be provided for the
submission of a subpoena.
I would have been more than willing to come in and engage
in an interview and looked forward to it.
Mr. Burton. There must have been some miscommunication,
because the way our counsel understood it was that you said you
would come in and an appointment had been set, and then the
White House informed us that you had retained counsel.
Mr. Lindsay. That wasn't my understanding at all, and I
would have--I had no objection to coming in and talking,
whatsoever.
Mr. Burton. Well, then, if that's the case and you have no
objection, then we'll retract what we said and we're glad
you're here.
Mr. Lindsay. Thank you very much, Mr. Chairman.
Mr. Burton. OK.
Mr. Lindsay. Mr. Chairman, members of the committee, my
name is Mark Lindsay. I'm the assistant to the President for
management and administration.
I have been with the White House since June 1997. Before
working at the White House, I worked as a staff member and
counsel to Congressman Lewis Stokes, a Member for whom I have
had an enormous amount of respect, and one of the last projects
I worked on was the Ethics Reform Task Force. Because of that
experience, I was brought on board to help the White House deal
with and developing a relationship with the Congress and
improving how we were dealing with matters as it relates to our
information technology infrastructure.
When I came to the White House, one of the major issues
that I had to deal with is that we had major information
problems in terms of our status of our technology. As a result
of engaging in that investigation and looking into how those
things were being done, we actually were able to develop what I
would consider a good relationship with our subcommittee in
Treasury, Postal that was able to work out our appropriations
issues so the White House could help move forward, past having
our funds fenced and moving toward getting the kind of
relationship that the Presidency and the kind of support the
Presidency should receive from the Congress, and I'm very proud
of that interaction.
As far as the matters that are related in this committee
hearing today, I first became aware of the computer glitch in
June 1998. It is the best of my recollection that Ms. Crabtree,
a very trusted and valuable employee for the Executive Office
of the President, brought that matter to my attention.
When I became aware of that particular issue, my first
instruction and my first belief was to do whatever was
necessary to fix the computer problem. Please keep in mind, Mr.
Chairman, we had been faced with numerous and countless
problems with system failures and systems that were being lost.
One of the things that we were constantly concerned about
was making sure that we maintained the integrity of our
computer systems and made sure they continued to operate.
On the point of providing any kind of instruction and
intimidation, I did say to Ms. Crabtree that this was a matter
that I believed that needed to be kept in bounds with those
people who needed the information to perform repairs to the
system. I believed that very, very much. I knew that in many
cases there were investigations being conducted about
individuals who were at the White House. I preferred very much
that those individuals not hear about the way they were being
treated by people who were talking around at the water cooler,
but they learned in official processes and procedures. I felt
very, very strongly about that.
But on the point of whether or not I issued any kind of
threat to employees, I can state to you quite emphatically and
quite clearly it's not something that I did, it's not something
that I would condone, and it's not something that I would ever
permit to happen if it came to my knowledge. As a matter of
fact, Mr. Chairman, it is something that I find very, very
troubling, and I would have done something about it right then.
I was also the ethics officer for my agency, as general
counsel at that time, and following those kinds of rules were
very important to me.
And I think that my record will show that in my
interactions with Congress, the time that I spent here, the
people that I worked with, the one thing that they would say
about me is that that kind of behavior is out of the lexicon
for Mark Lindsay.
Let me go on to state that once we did find out about this
particular computer glitch problem we then moved forward, or I
believe we were moving forward toward fixing this particular
issue.
The very first instance, that very first day when I was
informed, the first thing I did is place a call to my boss, Ada
Posey, the director of Office of Administration, her boss,
Virginia Apuzzo, the assistant to the President for management
and administration, who then directed me to communicate
directly with the counsel to the President and to let them know
that this computer glitch had been discovered.
Once we conveyed that information, I directed my staff to
prepare a memorandum which prepared that information in writing
to the counsel expressing the concern about what was included
in that e-mail or what wasn't included in the e-mail.
One other thing I would say is that at that particular time
I was particularly, when I first heard about it, at least best
of my recollection, it was my understanding that e-mails
weren't being put into the ARMS service system. I was relieved
to learn that it was just e-mails that were coming to the
inside, as opposed to all e-mails not going to that system in
the relevant time period. It was very important to me to make
sure that that information was conveyed to the appropriate
authorities.
It is important to also understand that the Office of
Administration is a custodian of the records for the White
House office. We maintain that information for the White House
office. We did not and never during the time that I was there
did I direct any particular search of e-mails, nor would I have
without the direction of White House counsel. I would not have
directed the reconstruction of any kinds of e-mails without the
direction and cooperation of my colleagues in the White House.
It just would not have happened.
It was very, very important to me to follow and conduct
ourselves in a way which was fitting with the circumstances
that I tried to establish with our Treasury, Postal
Subcommittee, and that is one basic principle: I believe very
strongly that open and clear communication on what was going on
was the only way that we could move from the position where we
were, where in fiscal year 1998 we had all of our information
technology funds fenced, and during that time period, we were
unable to make a lot of the improvements, address the--you've
heard people talk about in the last panel about server space
problems and what not. That was because we didn't have the
proper resource.
And, Mr. Chairman, some of that was our fault, in terms of
how we went about doing our information planning. We developed
a strategy, working with a partnership with Congress, for how
we were going to move forward and how we were going to build a
much more robust system.
And I'm very happy to report that in November 1998 we were
able to develop a solution for this computer glitch, and then
we got our funding for our Y2K money in that particular year.
Unfortunately, we were very much behind schedule. We were
faced with--my computer experts came to me and said,
essentially, ``You will fail to meet your Y2K deadlines. You
are not going to make it. You are starting too late, and you
don't have the appropriate resources in place to be able to
achieve the goals you need to achieve. What you need to do is
focus on your mission-critical systems and on those systems
which are mission support and critical to taking care of those
needs.''
Because of that requirement to address the Y2K glitch and
to address those issues, the reconstruction of the e-mail was a
matter which had to be placed in the context of maintaining the
total e-mail situation.
What we did after we were able to address the Y2K problem,
at the end of February 29, 2000, is we were able to then
continue the efforts.
Please keep in mind that during this relevant time period,
in October 1998, we had received information from Northrop
Grumman stating that it would cost us $600,000 just to assess
what the scope of the problem was, just to assess what the
scope of the problem was.
I can report to you today that that $600,000 worth of work
has been completed by the White House staff or the Office of
Administration staff that were tasked with working with this,
and they are moving forward with taking steps to address the
reconstruction issue, which is moving forward and would have
moved forward, even given the circumstances that we have here.
With all of that, I say it to emphasize the fact that, No.
1, there was no particular point in providing any kind of
``coverup'' of this particular information. From my
perspective, because I didn't review the document requests that
were provided to this particular committee or to other
investigative bodies, I would have no knowledge and did not
have any knowledge of what information would have been produced
and what wouldn't have been produced. We responded to subpoenas
and document requests that were passed through to counsel's
office and passed those documents forward. I never reviewed
those document requests and reviewed them for responsiveness,
reviewed them for privilege, or other kinds of assertions which
one could assert at one particular time. We presented it and
provided that information to those authorities.
Mr. Burton. You've created a number of questions we'll get
to in just a few moments.
[The prepared statement of Mr. Lindsay follows:]
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Mr. Burton. Ms. Crabtree, how do you want me to address
you? Ms. Crabtree, or how?
Mrs. Callahan. My correct name is Mrs. Callahan.
Mr. Burton. Mrs. Callahan. OK. We will address you as Mrs.
Callahan.
Mrs. Callahan, do you have an opening statement?
Mrs. Callahan. Yes, Mr. Chairman.
Mrs. Callahan. Yes, Mr. Chairman.
First of all, again, I'd just like to re-articulate the
fact that, up until this event today, no one has made any
attempt to reach me, unless my attorney has had such requests
given to him, but to my knowledge there has been no attempt to
get a hold of me, so, as a result, I would like to be able to
start out, first of all, by introducing myself to you. I'm
pleased by the reaction to correct the name.
So I would like you to get to know who I am, because,
again, we've never had an opportunity to talk, so I don't think
anyone here really knows who Laura Callahan truly is.
Just real briefly, I'd like to let you know that I am a
career civil servant. I have almost 16 years of Federal
service. I started my career of Civil Service back in 1984, and
I have been working in various different capacities.
I came to Executive Office of the President on September
30, 1996 as the Lotus Notes Windows/NT project manager. At the
time that I arrived at the Executive Office of the President
back in that September 30th date, the position of the desktop
systems branch chief was vacant. The position was empty. Mr.
Paul Myers was acting in the capacity of the branch chief at
the time when I arrived back in 1996.
In March 1997, the position of the desktop systems branch
chief was announced and I competed for the position, in which I
was then selected as the desktop systems branch chief.
As the desktop systems branch chief, I was responsible for
the customer service support activities, the help desk, as well
as the developmental activities for the desktop systems and the
Windows/NT file servers.
Prior to my coming to the EOP, I worked at the Pittsburgh
Research Center for the Centers of Disease Control, National
Institute of Occupational Safety and Health. That particular
research center was previously known as the Bureau of Mines
Pittsburgh Research Center, an agency that was abolished and
the functions assumed under the responsibility of the Centers
for Disease Control.
For the time that I was at the Pittsburgh Research Center,
I spent 3 years there as the director of the information
systems and technology group responsible for the computing and
networking needs there at the research center.
I am a graduate of Thomas Edison State College in Trenton,
NJ, and I have numerous certificates and a series of awards and
recognitions that I have basically been able to achieve over my
almost 16 years of Federal service.
I do have available for you, if you would like, a list of
those accomplishments, because I think it helps you understand
who I am, because those accomplishments number over 40, and
they include recognition from not only commands and agencies
for which I worked for, but they also include recognition from
outside entities.
What I mean by that, to give you an idea of who I am, the
outside awards include the 1995 Supervisor of the Year Award--
--
Mr. Burton. Excuse me, Mrs. Callahan. I don't mean to be
impolite, but your entire record of accomplishments is not
necessary at this time. We really want to get on with the
questions pertinent to the hearing.
If you would like to summarize, we'll be happy to have you
summarize. And we're impressed, obviously, with your
credentials, but we'd like to get on with the questioning.
Do you have anything else you'd like to say?
Mrs. Callahan. I would just like to know, sir, if you'd
like them for the record so you understand who I am.
Mr. Burton. Sure. We'll be happy to put those in the record
for you.
Mrs. Callahan. Thank you.
And then I would also like to say that, at the Executive
Office of the President, both in my capacity as the Lotus
Notes, Windows/NT program manager and also in my duties as the
desktop systems branch chief, from what I've heard today, being
my first exposure to these activities, I have to say that I'm
rather ambivalent at the moment. I am here voluntarily and
willingly to help you with any information that you need and
provide any data that you so desire. I'm just, quite frankly, a
little perplexed as to why it took today's event and a
subpoena. I would have been more than willing to be here at any
previous time or help you with any information prior to this.
Mr. Burton. Thank you. I think we've covered that.
My counsel contacted the White House. An agreement was
reached that you and Mr. Lindsay would come down voluntarily,
and then we understood that that was withdrawn and you hired
counsel, and that's why the subpoenas were issued.
Nevertheless, we're glad you're here----
Mrs. Callahan. Excuse me, Mr. Chairman. I just want to make
sure that people understand, this is all very foreign to me. I
hired counsel because I need someone that understands the
process, and being that my counsel, himself, was the chief
counsel for the Ethics Committee, I have been following his
guidance just to help me get through the process, and that was
the reason for securing counsel.
Mr. Burton. That's fine. We appreciate that.
Now, let's get back to the questions.
Mrs. Callahan, when did you have your first conversation
with Betty Lambuth about the problem with some incoming White
House e-mails not being properly managed?
Mrs. Callahan. Mr. Chairman, it's Mrs. Callahan.
Mr. Burton. Mrs. Callahan.
Mrs. Callahan. I know that's a hard habit to break.
Mr. Burton. Mrs. Callahan.
Mrs. Callahan. Thank you.
Mr. Burton. When did you have your first conversation with
Ms. Lambuth about this?
Mrs. Callahan. My first conversation is when Betty Lambuth
approached me in June 1998 to advise me that we had yet another
problem with e-mail.
Mr. Burton. OK. During that conversation, did she show you
an e-mail from Robert Haas or Yiman Salim describing the
problem?
Mrs. Callahan. No, sir. It was a very brief interaction for
her to advise me that they had yet another problem with the e-
mail system----
Mr. Burton. OK. Well, she did not----
Mrs. Callahan [continuing]. Which was not unusual.
Mr. Burton [continuing]. Show you the memo?
Mrs. Callahan. No, sir.
Mr. Burton. OK. How significant did you understand the
problem to be when you heard about it? Did you understand it to
be pretty significant?
Mrs. Callahan. The initial report from Betty Lambuth was to
the effect that there had been some kind of a discrepancy
noticed with the e-mail system. This was something that had
been noticed and there was no data as of this time to tell us
to what degree and depth the problem really occurred.
Mr. Burton. Did you tell Ms. Lambuth at that time not to
tell anyone about the problem?
Mrs. Callahan. Not at that time, sir.
Mr. Burton. But you did later?
Mrs. Callahan. Later on, sir, there was a different series
of events that occurred.
Mr. Burton. OK. Well, we'll get to those in just a minute.
Did you instruct her at that time to tell her subordinates
working on the problem that they were not to tell anyone about
it?
Mrs. Callahan. No, sir. Not at that time.
Mr. Burton. Did you specifically say that they couldn't
talk to their bosses at Northrop Grumman?
Mrs. Callahan. No, sir. Not at that time.
Mr. Burton. Not at that time. Well, when did you tell them
that, and what did you tell them?
Mrs. Callahan. Perhaps it would help, sir, for yourself and
the committee to understand the series of events. Ms. Lambuth
first reported that there had been a detected problem with the
e-mail system----
Mr. Burton. We can't hear you. Can you pull the microphone
a little closer, please.
Mrs. Callahan. We had learned about the problem through
Betty Lambuth advising me that we had an anomaly with the e-
mail system. My first reaction to her was what it has always
been while I was employed at the Executive Office of the
President, and that was the fact that, OK, this is not new.
We've had numerous problems with the e-mail system. It was very
poorly designed and very poorly constructed by a contractor
prior to Northrop Grumman. So, as a result, anomalies were
fairly common, and, as our normal process, when an anomaly
occurs our first order of business is to figure out what we're
dealing with--what is the situation, what is affected, what is
the size and scope of the problem and the depth--so that we can
figure out what the situation is and figure out the appropriate
corrective measures. So that was the focus of the first
discussion with Ms. Lambuth was to figure out, indeed, what was
this anomaly, and I instructed her to do some diagnostic
research activities to find out the scope and depth of the
situation.
Mr. Burton. Yes. OK. So, when the meeting took place with
all the people who were at the first table here today, what did
you say to them during that conversation about the
confidentiality of the records?
Mrs. Callahan. Mr. Chairman, prior to that, there are a
couple key events I think would help the committee----
Mr. Burton. Well, I'm concerned about that meeting at this
point.
Mrs. Callahan. I can't answer, sir, without giving you the
appropriate context, because then you won't be able to
understand the reason for the meeting.
Mr. Burton. OK. Give me the context.
Mrs. Callahan. Thank you, Mr. Chairman. I appreciate that.
I had notified Mr. Lindsay immediately that we had an
anomaly situation and that we had begun the research efforts.
Very shortly, within a period of--and I'm working off of
memory, bear with me--approximately a day or two of time
passing, Betty Lambuth returned back to me very anxious, very
nervous and concerned. She brought it to my attention the fact
that Mr. Bob Haas had found e-mail messages pertaining to
Monica Lewinsky and Ashley Raines.
The reasoning for this activity was unclear to me and it
was rather perplexing, because I had not instructed the
contractors to do any type of subject matter search at this
point in time, nor had I--would I have any role to do any of
those type of searches during my employment at the EOP other
than functioning as a normal employee responding to normal
document searches and requests.
So I was very concerned why all of a sudden we had specific
e-mail being brought to my attention in a very, very short
period of time when we did not even fully understand the size
and the scope of the situation.
So I had talked to Ms. Lambuth and asked her very
specifically what was the situation, why did Bob take it upon
himself, Mr. Haas, to do these searches.
She was unable to answer that question for me and re-
articulated something that was a regular pattern at the EOP,
and that regular pattern was the fact that Mr. Haas was a very
talkative individual and very inquisitive individual, similar
to, like, a child on the first, you know, on the day of
Christmas, waking up first, running down, and opening up all
the presents to see what is inside before anyone else had a
chance.
So, as a result of her concern and her repeated issues
working with Mr. Haas in the past, and the fact that he had
somehow taken it upon himself--through whatever means I am not
sure--to do a search and had already found these documents
dealing with Ashley Raines and Monica Lewinsky was a concern of
both Betty Lambuth and myself.
So we had discussed options on how to approach this, in
which case we decided that we would get a meeting together with
all of the team members, including Mr. Haas and Betty Lambuth,
and basically walk them through the standard procedures of how
we handle these type of events at the EOP.
And what I mean by that, as far as the ``standard
procedures'' and what they were advised at the meeting was the
fact that the normal procedures are, if you are receiving any
inquiries from folks such as the press, to please refer them to
the Office of Public Affairs, and if anyone else had any
particular questions or had a need to know, to please refer
them to either myself or Mr. Lindsay.
So Betty and I had made the decision jointly to have that
meeting, and I, in turn, left and went and advised Mr. Lindsay
of the situation--that Mr. Haas had found this information. We
did not know what his motivation was behind that. And there was
already people in the hallway starting to discuss this. And
obviously, as we are all aware from the newspapers and the
media, the other events going on, when I advised Mr. Lindsay of
this he concurred that this was a situation that we needed to
be careful of because it was sensitive. And, as such, Mr.
Lindsay participated in the team conference call meeting in
which all of the members of the team were present and Mr.
Lindsay was there via conference call, and re-articulated the
standard operating procedure. And in absolutely no way did I
ever make any personal threats to any individuals during that
timeframe.
Mr. Burton. We had, I think, five people there. Three of
them indicated that they had been told to be quiet, to keep a
lid on this, that there was a threat that they might even go to
jail if they said something. There were three of them that
recalled that. One of them even told her supervisor that she
couldn't tell him anything, even though he threatened her with
reprisals, because she said she didn't want to go to jail.
Now, how did they get that idea, do you think?
Mrs. Callahan. Mr. Chairman, first of all, from what I have
heard today, there's very different recollections of those
individuals, and----
Mr. Burton. Well, excuse me for interrupting, three of them
have referred to the jail comment, two of them said they don't
recall that, but they didn't refute it. So no one has refuted
it, but three have said that they felt that there was a
possibility they would face jail. Now, how do you suppose they
got that feeling?
Mrs. Callahan. Mr. Chairman, I could tell you and the other
members of this committee I did not threaten them with any
sense of jail for several reasons, and first----
Mr. Burton. Did you threaten them with dismissal or any
kind of reprisals?
Mrs. Callahan. No, sir, because there--they would be idle
threats. I have no authority, first of all, to carry out these
type of threats.
Mr. Burton. Yes.
Mrs. Callahan. And, No. 2, it is not anywhere in my
demeanor and my past practice or my character to do those type
of threats.
Mr. Burton. OK. Well, let me ask Mr. Lindsay a couple of
questions.
Mr. Lindsay, do you recall the phone call in question?
Mr. Lindsay. No, I don't.
Mr. Burton. You don't recall the phone call with them in
Mrs. Callahan's office?
Mr. Lindsay. No, I don't, sir.
Mr. Burton. You don't recall? Well, during that--the
selective memory loss of people that come to us from the White
House just mystifies me.
Mr. Lindsay. I assure you, sir, it's not selective.
Mr. Burton. This was a pretty significant conversation.
They were talking about e-mails that had been lost, which had
been subpoenaed by myself, the independent counsel, and the
Justice Department, and there are all these people from
Northrop Grumman in then Ms. Crabtree or Mrs. Callahan's
office, and you don't recall talking to them about that?
Mr. Lindsay. No, sir. And I think that one of the things,
to place this into context, is that at that present time I was
handling two other investigations directed by Congress over the
handling of classified materials, which I considered very, very
serious.
Mr. Burton. Yes.
Mr. Lindsay. And I had numerous conference calls over those
materials, where I worked with Chairman Solomon's committee and
the House Permanent Select Committee on Intelligence.
Mr. Burton. Yes.
Mr. Lindsay. I also had investigations that were going on
dealing with those things. Those were investigations that I was
tasked with dealing with Members and dealing with other
individuals in resolving those issues.
Mr. Burton. Were you aware of the subpoenas that had been
issued by the House, this committee, and the independent
counsel asking for documents pertaining to a whole series of
investigations involving the FBI files, the Travel Office
investigation, the----
Mr. Lindsay. Absolutely, sir.
Mr. Burton. Then, if you were aware of those and you knew
the e-mails were relevant to our investigations, why wouldn't
this click on in your brain?
Mr. Lindsay. Because, as Mrs. Callahan stated, my
instruction from the very first instance was to fix whatever
problem was there, but to also identify the scope and breadth
of what the problem was.
Mr. Burton. Yes.
Mr. Lindsay. This was very early in the situation in terms
of what was going on.
I didn't know for sure that information had not been
provided to you or any other committee. I knew that document
productions had been made. Of course, that was very obvious and
common knowledge.
Mr. Burton. OK. Well, let----
Mr. Lindsay. What I didn't know was that the information
contained in these e-mails was e-mails that was responsive to
the document request that you are referring to.
Mr. Burton. Let me--you had e-mails that had been lost
since September 1996. The campaign finance investigation dealt
with that timeframe. Money came in from all over the world into
campaigns. There was a serious investigation going on. And the
e-mails that were lost during that timeframe, you didn't even--
that didn't click into your mind that they might have been
relevant to that investigation?
Mr. Lindsay. Well, first off, Mr. Chairman, I would say
that whether e-mails were lost or not is a conclusion that
was--a technical conclusion that had not been reached yet. What
I asked be done is that there be an investigation to find out
what the nature of the problem was.
Mr. Burton. OK.
Mr. Lindsay. So I think it would be premature for me to say
that. And, as Mrs. Callahan stated----
Mr. Burton. Let me just ask one more question here, and
then we'll yield to my colleagues.
Mr. Lindsay. Yes, sir.
Mr. Burton. You do not remember saying anything about this
in a telephone conversation to the people that were at that
meeting? All five of them remember, but you don't?
Mr. Lindsay. No. Like I said, Mr. Chairman----
Mr. Burton. You don't remember?
Mr. Lindsay. I don't remember.
Mr. Burton. OK. You don't remember.
And, Mrs. Callahan, you don't remember making any kind of a
threat to any of these people, even though they all remember
being concerned about what was said at that meeting, and so
concerned that they went to Starbuck's and across the street to
a park to talk about these things? You don't remember making
any kind of a threat of any type to them?
Mrs. Callahan. Mr. Chairman, I did not threaten anyone. I
advised them of the standard practice and the procedures to
handle sensitive situations.
Mr. Burton. Mr. Waxman.
Mr. Waxman. Mrs. Callahan, you've said you worked for the
Federal Government since 1984; is that right?
Mrs. Callahan. Yes, sir.
Mr. Waxman. And are you a career civil servant or a
political appointee?
Mrs. Callahan. I'm a career civil servant, sir, with
absolutely no desires or aspirations for the politics.
Mr. Waxman. In fact, I understand you are a registered
Republican, or at least you were at the time all of this
happened; is that right?
Mrs. Callahan. Yes, sir, I was, and I still am.
Mr. Waxman. What is your area of expertise?
Mrs. Callahan. My area of expertise is in the computer
science arena. I have been working in that capacity since my
entrance into the Federal civil service back in 1984.
Mr. Waxman. Have you received any Federal awards for
Federal service?
Mrs. Callahan. Yes, sir. In fact, I've submitted for the
record here, I have over 40 different awards. Most recently are
two from last week for exemplary achievement. I also have
awards from independent parties, such as being named one of the
Nation's top webmasters in 1996, I believe was the year, and in
1995 I received the award from the Federal Executive Board, the
Bronze Award, for being supervisor of the year. And I have a
litany of other accomplishments and achievements for which I
have been recognized for my work.
Mr. Waxman. How long were you employed at the Executive
Office of the President [EOP]?
Mrs. Callahan. I was employed from September 30, 1996 until
about October 10th or 11th, 1998.
Mr. Waxman. And what were your duties at the EOP?
Mrs. Callahan. My initial duties, I was hired to be the
Windows/NT and Lotus Notes program manager. That's what I
started out as. And then I competed for and was selected into
the position of the desktop systems branch chief in March 1997,
where I then took on the responsibilities of customer service,
support, help desk, as well as the development activities for
the desktop systems, which included the desktop, themselves,
the computers on the people's desks and what they saw, as well
as the Windows/NT servers.
Mr. Waxman. Where do you work now?
Mrs. Callahan. I currently work at the Department of Labor.
I am--just to give you a little bit about myself there, I am in
the senior executive service at the Department of Labor----
Mr. Waxman. Briefly, because I have questions I want to ask
about the issue under investigation today.
Mrs. Callahan. Certainly. And I'm the special----
Mr. Waxman. Aside from investigating your background.
Mrs. Callahan. Thank you. And I'm the Special Assistant for
Information Technology, where I perform the duties of the
Deputy CIO, and I am the Director of the Information and
Technology Center.
Mr. Waxman. I believe you learned about the Mail2 problem
in June 1998. How did you find out?
Mrs. Callahan. Ms. Betty Lambuth brought it to my
attention.
Mr. Waxman. And what were you told about the nature of the
problem?
Mrs. Callahan. This was very much unknown. We just knew we
had some type of an anomaly. We didn't even know the size and
scope of the situation, and we didn't know at that time if it
was strictly one of the mail servers or all of the mail
servers. We just knew we had a problem.
Mr. Waxman. And what was your reaction to the problem?
Mrs. Callahan. I go into my normal diagnostic behavior. I
instructed her that we have a situation, that we need to figure
out what it is, and asked her to go back and look at the
situation and research it to find out the scope of the
situation, how large it was, did it affect all of the e-mail
servers, some of the e-mail servers, all of user accounts, some
of the user accounts, certain types of e-mail--basically
diagnostic type discussion.
He was very concerned that we go and do some research to
find out whose e-mail this affected, how many people, and basic
diagnostic information. He re-articulated the fact to find out.
Mr. Waxman. I understand one of the first things that you
did was to call a meeting in your office on June 15, 1998, with
the Northrop Grumman employees who were responsible for the
ARMS-Lotus interface. These were the same individuals that
testified on the first panel.
There have been allegations that you threatened them with
jail. Mr. Burton has already asked you about that, but they
told us--some of them, anyway, said that they thought you were
threatening them with jail if they talked about the e-mail
problem. Mr. Haas claims that you told him there would be ``a
jail cell with his name on it'' if he mentioned the problem to
his wife. Others who were present for this meeting, like Ms.
Salim and Mr. Spriggs, have said that they don't remember you
making any threats.
I want to ask you about this meeting and what you said.
At that meeting, did you tell anybody to destroy any e-
mails or cover up the problem?
Mrs. Callahan. On the issue of destruction of e-mail, I
have never given any instruction to destroy any e-mail
messages. I want to make sure that that's very perfectly clear
to everybody.
In regards to the meeting, what prompted the meeting was
the fact that a Northrop Grumman employee, Mr. Robert Haas, had
brought to Betty Lambuth's attention that he had found e-mail
pertaining to Ashley Raines and Monica Lewinsky, when there had
been on direction, to my knowledge, given to him to conduct
such a search, and why--quite frankly, it perplexes me. I don't
understand his motivation at this point in time, because we
were in a diagnostic mode, trying to understand, first of all,
what servers were involved and then which e-mail users on which
server were impacted, and then, when we could figure out that,
we had to figure out how many e-mails for each of those users
were, indeed, affected. We did not know that at this time.
I'm also a little perplexed, quite frankly, if I may. I've
heard allegations that have been made and I've read them in the
Washington Times, and it makes me, quite frankly, a little
angry--well, it makes me a lot angry for several reasons,
because they are strictly allegations. But, in addition to
that, I find it rather mystifying that someone like Betty
Lambuth can make a statement today about being threatened by
myself and feeling so concerned that she's going to jail by
this alleged threat that she felt it to make the decision
herself to have these meetings offsite, but yet this is the
same individual who, after leaving the EOP in July, accepted an
invitation to my wedding and attended my wedding in September
of that very same year, in September 1998, bringing me a gift
and wishing me well. I'm just, quite frankly, perplexed by all
of the different behaviors.
Mr. Waxman. Let me ask you this about Mr. Haas, because he
made the accusation, and I thought he was pretty sincere. He
did tell us he made a flippant comment to you, and your
response might have been a flippant response, because sometimes
when people say something flippant they get a similar response,
but he didn't take it to be flippant. He said you responded--I
think he asked, ``What will happen if I tell my wife or tell
people?'' And you said, ``There will be a jail cell with your
name on it.'' Could that have been the way this whole thing
took place and you just don't recall it?
Mrs. Callahan. I do not ever remember, nor would I have
ever said anything about a jail cell. And, quite frankly, I
think Mr. Haas characterized himself with his flippant
comments. I would suggest that he may be either having bad
recollection or may have an overactive imagination with regards
to the threat being made to him.
Mr. Waxman. Well, you could have said that, ``If this
information gets out, it would be in violation of the contract,
the law,'' something like that?
Mrs. Callahan. Mr. Waxman, first of all, we didn't know
what the information was. We were still trying to----
Mr. Waxman. Well, you knew that the President was being
investigated and the Congress and the independent counsel and
everybody was trying to get documents and e-mail, that there
were a lot of things that weren't on that whole system that was
supposed to enable people to get all the documents. You knew
that right away, didn't you?
Mrs. Callahan. At that point in time, we did not know. The
only knowledge that I had was the fact that Mr. Haas had found
some e-mail messages, four, that dealt with Ashley Raines and
Monica Lewinsky, and, as a result of that, I had the meeting in
order to advise them not to have any open discussions about
this because I had Betty Lambuth approach me and tell me she
was concerned that Mr. Haas was unable to control himself and
was talking about this openly, and she wanted some reassurance,
you know, given to her team about the standard practice and
procedure for this, and that was the focus of the meeting.
And, also, so you can understand, I was only involved in
this process for a period of maybe 1 to 2 weeks. My memory
doesn't recall the exact number of days, but as soon as my
boss, Kathy Gallant, returned, the project was handed over to
her and she saw it through from that point on, so my
involvement is very limited at the very early stages of this.
Mr. Waxman. But you did ask them at that meeting not to
talk about it publicly; is that right?
Mrs. Callahan. I advised them of the standard procedures,
and the fact that if they were approached by the press to talk
to the Office of Public Affairs, and if anyone had any specific
questions, to please address them to myself and Mr. Lindsay.
Mr. Waxman. Did you think that was a reasonable request of
them, given the circumstances?
Mrs. Callahan. Yes, sir.
Mr. Waxman. And was Mr. Lindsay present at that meeting?
Mrs. Callahan. Mr. Lindsay was conference called in. It was
a--it was during a time where it was extremely busy and there
was a lot of activity going on, and his availability was very,
very limited, so we conference called him in.
Mr. Waxman. Did he threaten anybody in that conference
call?
Mrs. Callahan. Absolutely not. I never heard Mr. Lindsay
make any threats.
Mr. Waxman. I see my time has expired.
Mr. Burton. We have a vote on. We'll stand in recess until
the call of the gavel.
[Recess.]
Mr. Burton. The problem is we had the Speaker of the House
making a point of order on the floor dealing with the chaplain,
and, unfortunately, that had to be attended by a lot of the
Members.
I now yield to Mr. Souder.
Mr. Souder.
Mr. Souder. I thank the chairman. And I want to make it
clear, Mrs. Callahan, if I mistakenly say ``Crabtree,'' please
forgive me. I know Mr. Lindsay made that mistake twice in his
opening statement, as well. Nobody is deliberately trying to
make any mistakes. When you get mentally on one track, it's
very easy to do that.
I want to start over and go--you laid out kind of how you
saw the perspective of the meetings, but I want to go back
through some specifics with that.
Did you--I understand you informed Mr. Lindsay immediately
after the first meeting with Ms. Lambuth. Was Paulette Cichon,
then Deputy Director of White House Office of Administration,
present when you informed Mr. Lindsay of the problem?
Mrs. Callahan. No, sir. Paulette Cichon was not available
at the time. I remember stopping by her office and she wasn't
there, and that's when I was able to find Mr. Lindsay.
Mr. Souder. Was anyone else there when you talked to Mr.
Lindsay?
Mr. Burton. Excuse me. Would you pull the microphone close.
Your voice is very soft, and it is very difficult to hear you.
Thank you.
Mrs. Callahan. I'm sorry?
Mr. Souder. Was anyone else present when you gave the
message to Mr. Lindsay?
Mrs. Callahan. Not that I recall, sir.
Mr. Souder. Did he give you a message to convey back to Ms.
Lambuth or anybody else who was working there? Did he say,
``Please communicate this to them?''
Mrs. Callahan. Not at that time, sir. No.
Mr. Souder. When you say ``not at that time,'' you're
saying he didn't give you a message to convey to them at any
point? What time would he have told you? You've said that a
number of times.
Mrs. Callahan. Well, the first time I advised Mr. Lindsay
of the problem was the fact that we had yet another e-mail
problem. That was the first notification, which, again, is not
unusual, given the fact that e-mail problems were frequent at
the Executive Office of the President because of the very poor
design of this system and the severe constraints of the
hardware. So I had given him the first notification that we had
an anomaly, and he basically told me, ``Well, we need to find
out what's going on,'' and went through the discussion I've
mentioned earlier about diagnostics, and at that point I left
his office.
Mr. Souder. At any point in future meetings did--you've
maintained that he--that you didn't use--did he use the word
``jail,'' ``arrested,'' or anything like that?
Mrs. Callahan. I've never heard Mr. Lindsay use those
words.
Mr. Souder. In this code that you said you told the
employees about, is that what you referred to it, as a code?
Mrs. Callahan. It's standard operating procedures.
Mr. Souder. In standard operating procedures, what is that
if somebody disobeys you?
Mrs. Callahan. We didn't talk about disobeying. I just gave
instructions to the staff on what the procedures were and
articulated to them that if anyone is inquiring from outside
the EOP, such as the press, they were to talk with the Office
of Public Affairs and refer them to that office.
Mr. Souder. So neither you--to your knowledge, nothing came
from Mr. Lindsay or yourself that said if they didn't follow
the standard operating procedures they would have any problems?
Mrs. Callahan. No, sir.
Mr. Souder. So it was just kind of, like, being friendly to
them, and just saying, ``Look, this is the way we do
business?''
Mrs. Callahan. Just--we articulated the standard operating
procedures, and none of the individuals involved ever came back
to me, up until what I heard today, to even express a concern
that they had even felt threatened to begin with.
Mr. Souder. Mr. Lindsay----
Mr. Lindsay. Yes, sir?
Mr. Souder [continuing]. I assume that's your testimony, as
well, that you did not tell Mrs. Callahan that there would be
any punishment?
Mr. Lindsay. Absolutely. There was--I had no power to
punish. The statement I'm very perplexed about----
Mr. Souder. Can I interrupt you just a second?
Mr. Lindsay. Sure.
Mr. Souder. None of us are alleging that you or Mrs.
Callahan had any power to punish.
Mr. Lindsay. Yes.
Mr. Souder. You can make a threat or an implied threat that
someone else can have the power to punish, whether or not you
do. So I'm not accusing you of saying you had the power to
punish. The question is: did you imply back that if any of them
leaked this information or let anybody outside or didn't follow
standard operating procedures that they could be disciplined?
Mr. Lindsay. No, I did not.
Mr. Souder. Mrs. Callahan, again, did you convey a message
from--any kind of message from Mr. Lindsay to Ms. Lambuth?
Mrs. Callahan. The only thing I conveyed was the fact that
we needed to go through our diagnostic process.
Mr. Souder. And how do you think they interpreted that? In
other words, given the fact that you had talked with Mr.
Lindsay, clearly were going up the chain of command, and then
coming back, how do you think they interpreted that? And could
they have, in fact, felt intimidated by the way it was
delivered? Or do you think they just behaved irrationally in
their concern?
Mrs. Callahan. First of all, sir, the first interaction was
between myself and Ms. Lambuth. The other staff members weren't
involved. In that regard, I just communicated back to her the
need to do the diagnostic activities. It wasn't until after it
was brought to my attention that we had an individual on the
team, Mr. Haas, talking about this and there was hallway
chatter going on that the second meeting was prompted.
Mr. Souder. Did Ms. Lambuth request to meet with Mr.
Lindsay? Did she request a meeting when she talked to you?
Mrs. Callahan. I'm not aware of that.
Mr. Souder. Did she indicate that she wanted a meeting to
hear the message directly, any kind of message from Mr.
Lindsay?
Mrs. Callahan. I don't recall that at all.
Mr. Souder. And I do want to correct one thing that you had
said in the record. You said that you were confused that--
because she had given you a present, I think, for your wedding
after the period of time where supposedly she felt threatened.
Mr. Hawkins communicated to us that she felt she was in your
pocket. In other words, in the first panel, he was accusing her
of being too close to the contracting officer. She said on the
record that she wasn't so close to you that it would be
dependent. But, just to make the record clear, she was hardly
viewed by this panel or the Members of Congress here or anyone
else as hostile to you, and she was relaying the facts as she
heard them, but, in fact, she was accused by another witness on
the panel as being too close to you and listening to you rather
than to her direct supervisor, which is a little bit different
implication of that.
Mr. Lindsay, did you ever meet Ms. Lambuth to hear her
message or to give any messages to her face-to-face?
Mr. Lindsay. I don't have any recollection of a specific
meeting with her at all, nor, in the normal course of things--
the thing to keep in mind is we had over 200 folks who work for
the agency. As I mentioned before, we had numerous
investigations, we had other matters. I was the general
counsel. And, frankly, this whole genre was a little bit out of
my bailiwick. So, frankly, my information, I used the conduits
that I had and the people that we'd been able to work with and
had a trusted relationship, Laura being one of those people, to
act as a conduit, and the associate director for information
systems.
So it would be--it was impractical for me to go and have
individual discussions with every single person in a particular
matter.
In addition to that, the--because when I talked with Mr.
Hawkins at a later date, when he raised an issue of whether or
not we were properly acting within the scope of the particular
contract, I believed very much that it was within scope, and
their attempts to acquire additional funds to perform this work
was inappropriate, so we did have those kinds of discussions
about those matters and no discussions of intimidation or
anything else came up.
Mr. Souder. I want to repeat something I said earlier. One
of the difficult things, as a Member of Congress, as we get
into this, is both of you seem to be very skilled public
servants. You both seem very nice and very pleasant. The truth
is that so have most people who have been in front of us. This
isn't anything personal with anybody, but over time, over 5
years, we've lost a tremendous degree of confidence in the
ability to get truth, and that isn't a reflection on any
individual, but we're trying to do our job of getting to the
bottom of this.
Mr. Lindsay. I have a very significant degree of respect
for the congressional process and what happens based on my
experience and the time that I worked here, so I very much
respect that process.
Mr. Souder. And we've had a big conflict over the period of
time at hand, 1996 to 1998. We've had a very difficult time
with witnesses fleeing the country, with trying to pursue that.
And both of you have talked about how busy you were, and I
understand trying to recall conversations when you have
multiple investigations going, you don't remember necessarily
particular meetings or what was said at something, but--
particularly early on. However, we have a memo that was sent to
John Podesta, assistant to the President at that time, the
deputy chief of staff, from a Virginia Apuzzo that appears--
there's a handwritten note to Chuck, who we believe is Charles
Ruff, that is warning them about this, and clearly--I mean, I
don't know how often this kind of memo would go up to this high
a level in the White House, as well as to the legal counsel of
the White House saying, ``Look, this could be a super big
problem.''
To me, the impression I'm getting is that you had two more-
important investigations than this one, but is that unusual to
have a memorandum go to John Podesta saying that ARMS is an
information system designed to provide comprehensive archives;
that, in fact, a lot of these archives aren't there--describes
a description of it? Why would something like this go to the
very top echelons of the White House and to the top of his
legal team?
Mr. Lindsay. Well, I can't answer the specific reason as to
why the assistant to the President for management and
administration transmitted that memorandum to the chief of
staff. What I can--to the deputy chief of staff. What I can say
is that I conveyed this information.
You have to understand, I mean, I've practiced law and I
understood the circumstances that the folks in the counsel's
office were in, and I knew, too, that for me to try and act on
their behalf in these types of matters was inappropriate. I
knew what we needed to do was to convey--try to collect the
information as soberly and deliberately as we could and then
present that information.
And I'll be perfectly frank with you. As soon as we
provided this information that I provided to my superiors, I
could put a bit of a sigh of relief, because, frankly, we had
conveyed it, and then it was up to them to provide the--
particularly the legal folks--to provide the legal analysis
based on the information, the evidence, and the materials that
they had which I didn't have access to at that particular time.
Mr. Souder. You're also used to working with politicians,
and I think we can all understand that what we heard today is
it is not even plausible that there was a backup for most of
these incoming e-mails, which is a limited universe, but
critical incoming e-mails that could have been coming from John
Huang or Charlie Trie or the Democratic Committee and taken
out.
Obvious politicians and the legal attorneys at the White
House realized this was a potential nuclear bomb. This isn't
just kind of, ``Oh, this is a little glitch in the computers.''
This is potentially hundreds of thousands of relevant--not all
of them relevant, but buried in that that may have been, in
fact, deleted because there was no longer a backup system to
catch it.
Mr. Lindsay. I have no information to support that
supposition.
Mr. Souder. Other than it went to the top echelons of the
White House immediately after you had had a meeting.
Mr. Lindsay. I know that there was a transmission of that
information, but that was in the normal course of things. I met
with Chuck Ruff at the counsels' meeting twice a week.
Mr. Souder. Yes.
Mr. Lindsay. And we would discuss computer types of issues.
And this was the proper forum to do it and to convey that to
him so that they could make the appropriate determination.
Mr. Burton. The gentleman's time has expired.
Mr. Waxman.
Mr. Waxman. Mr. Chairman, I am surprised and very
disappointed to have learned, just walking into the meeting a
few minutes ago, that you have unilaterally disinvited Beth
Nolan, the White House counsel, to testify today. She was on
the agenda to testify.
Mr. Burton. If the gentleman will yield----
Mr. Waxman. I won't yield at this point, but I will when I
have completed.
Mr. Burton. OK.
Mr. Waxman. I'm disappointed because, as basic fairness,
both in treating the minority and in this hearing, we should
have Beth Nolan here today to testify. She can give us
information about Monica Lewinsky and the e-mails, and clarify
all the innuendo that has been raised.
Mr. Burton. Will the gentleman yield?
Mr. Waxman. Not yet.
Mr. Burton. OK.
Mr. Waxman. And for us not to even have been consulted
about taking her off the schedule, even if she is going to be
invited next week, there's this huge gap where you have out
there statements that were made, a lot of confused statements
that were made, with all sorts of accusations, which I think
could have been cleared up and should have been cleared up in
the same day at the same hearing.
I'll yield to the chairman.
Mr. Burton. Let me just say that we have information that
we have received at e-mails involving the Vice President, and
we had some other information that was conveyed to us today.
The staff and I talked about it, and we agreed that, rather
than have Ms. Nolan come up twice, once today and again next
week after we reviewed the Vice President issue and the other
things that we received today, we thought it would be better
for her and for the committee for us to do it all at once.
Mr. Waxman. Well, reclaiming my time, I think what has
happened, Mr. Chairman, is that you haven't been able to
establish your case with any clarity that anybody did anything
wrong, and therefore you are trying to find another set of
arguments to come in with so you can make some other
accusations and then have her answer those accusations.
Today, we have had testimony from people who said they were
threatened, they were told to keep quiet. We had a witness who
said she heard from somebody else about what was in these e-
mails and how damaging they were. Of course, that was
contradicted by other testimony. But the person who could give
us information that would clarify whether the e-mails were
actually given to this committee and to the independent counsel
was Ms. Nolan, the White House counsel.
You may have consulted your counsel, but you didn't consult
the minority, and I think it was an improper way to treat the
minority on this committee, and certainly an improper way to
conduct a hearing that should be fair. And I think by this
action it is clear that it is not fair.
But I want to pursue some questions with the witnesses that
are here today, so maybe we can get to some of the facts.
Mr. Lindsay----
Mr. Lindsay. Yes, sir.
Mr. Waxman [continuing]. Just by way of background, just
summarize your career very quickly in the Executive Office of
the President prior to your current job.
Mr. Lindsay. I've had several posts within the Executive
Office of the President. I started when I left as working for
Congressman Louis Stokes. I joined the Executive Office of the
President as the general counsel for the Office of
Administration. In that position, I worked on many legislative
matters and legal matters within the Office of Administration,
which primarily comprised most of the business functions that
went on and providing administrative support to the White
House.
After a period of time, I was promoted to be chief of staff
and general counsel within the Office of Administration and
performed that position for a while, and then was moved to be
counselor to--senior counselor for management and
administration within the White House office, where I worked
directly for Ms. Virginia Apuzzo, the assistant to the
President for management and administration.
At some point after that, the director of the Office of
Administration left and I was requested by my superior to
rejoin the Office of the Administration as its director because
we had pending testimony date before Congress that was coming
up. I was familiar with some of the issues and I was tasked
with rejoining the Office of the Administration and testifying
before Congress, which I believe went quite successfully.
Mr. Waxman. Is the Office of Administration part of the
White House?
Mr. Lindsay. It is not, sir. It is--the White House office
is a separate agency which receives its own appropriation.
Mr. Waxman. Does it play a political role? Does the Office
of Administration play a political role?
Mr. Lindsay. No. The objective of the Office of
Administration is to provide common administrative support for
the Executive Office of the President. Most of the people, the
vast majority of the people, all but at that time probably six
individuals who worked for the Office of Administration, were
career individuals who had worked for the administration,
administration after administration, and served the Presidency
and not a particular President.
Mr. Waxman. At the time of the discovery of this Mail2
problem, what was your position at the Office of
Administration?
Mr. Lindsay. I was the chief of staff and general counsel.
Mr. Waxman. And how did you learn about this problem?
Mr. Lindsay. Mrs. Callahan came to me and let me know about
it.
Mr. Waxman. And what did you do after you learned about the
problem?
Mr. Lindsay. Well, the first thing was to gather more
information as to what was going on, and I remember asking her
to do--to look into it a little bit further, and providing her
with instructions that we needed to fix it. We want to get this
stuff squared away, whatever it was. I didn't know or have any
real detailed understanding of what was necessary to do that,
but I saw, as a administrative manager there, that one of the
things that was important for me to do and I saw as part of my
duty is to, at least, from the very beginning, push toward
resolution of the problem, whatever its scope.
Mr. Waxman. There have been allegations that you or Mrs.
Callahan threatened Northrop Grumman employees, telling them
that they could face jail if they discussed the mail problem
with anyone. Did you threaten any of these employees?
Mr. Lindsay. Mr. Waxman, absolutely not. I didn't and I'm
not aware of any threats being made by any Government employee
to any Northrop Grumman employee.
Mr. Waxman. What did you tell the Northrop Grumman
contractors?
Mr. Lindsay. I'll be perfectly honest with you: I don't
have a recollection of having specific direction and
conversations with them. My conduit for dealing with the
contractors were Government employees. The contractors did not
report to me, they did not provide work reports, none of those
things. They all went to the technical staff that was there,
and then those technical staff people would then, where
appropriate, bring matters to my attention.
Mr. Waxman. Did you want to limit the discussion of the
problem to the people involved in making the repairs?
Mr. Lindsay. Absolutely.
Mr. Waxman. And was that an attempt to cover up the
problem?
Mr. Lindsay. Absolutely not.
Mr. Waxman. Did you instruct them not to tell their
managers about the problem?
Mr. Lindsay. No, I did not.
Mr. Waxman. Did you, yourself, brief Northrop contract
manager Steve Hawkins about the problem?
Mr. Lindsay. Yes, I did.
Mr. Waxman. Now, after hearing about the e-mail problem,
you also specifically instructed that backup tapes containing
the non-archived e-mails be saved; isn't that right?
Mr. Lindsay. That is correct, sir.
Mr. Waxman. And why did you do that?
Mr. Lindsay. I did that because my state of knowledge as to
the volatility associated with the systems that we had, I
wanted to make sure that we took--whatever steps necessary were
there to preserve the information. That's one thing that I saw
as a primary responsibility of mine is to preserve information,
to make sure that their records were kept at least in one of
those three places where they could reside on someone's
computer or on the server, on the ARMS system, or on backup
tapes.
Mr. Waxman. I understand you informed senior officials at
the White House about the e-mail problem. In fact, I have a
June 19th memo to John Podesta, then the deputy chief of staff,
that you helped draft that describes the problem. I want to ask
you about this.
Who did you inform at the White House about this problem?
Mr. Lindsay. My immediate superior, the director of the
Office of Administration, and also Virginia Apuzzo, who is my
boss also, and the assistant to the President for management
and administration.
Mr. Waxman. Did you inform the White House counsel's
office?
Mr. Lindsay. I was directed by my boss to contact the
counsel to the President immediately.
Mr. Waxman. And what did you tell them?
Mr. Lindsay. Told him essentially the material or the
information that is contained in the memorandum--that there was
a glitch with the computer system where incoming e-mails may
not have been collected by the ARMS records management system.
Mr. Waxman. And what was the response of Mr. Podesta and
Mr. Ruff, then the White House counsel?
Mr. Lindsay. Mr. Podesta's response was just to ask if I
had had any conversation with Mr. Ruff, and, frankly, I didn't
provide any other briefings or other information for him. I
talked with Mr.--the counsel to the President at that point
afterwards.
Mr. Waxman. Did anyone at the White House tell you to hide
the problem?
Mr. Lindsay. Absolutely not.
Mr. Waxman. Did anyone at the White House tell you to
destroy any e-mails?
Mr. Lindsay. Absolutely not.
Mr. Waxman. My understanding is that you were requested to
perform a test of the system to figure out the extent of the e-
mail problem; is that right?
Mr. Lindsay. I didn't understand it--I didn't take it as a
test at that particular time, but I did receive a set of names
that were provided to me by folks in the White House counsel's
office, which I conveyed to our technical folks, and they did
perform an analysis of those names, and the results were then
provided back to the counsel's office for comparison with other
documents that have been produced.
Mr. Waxman. And tell me more about this test. How was it
conducted? And what were the results of that test search? And
did you think the problem had been fixed as a result?
Mr. Lindsay. I couldn't tell you, based on that
information. I made it a habit as to not to look and review
documentary productions from e-mail searches, myself. What I
did--because we were the custodian of the records, it was not
my job to review those records for responsiveness, or whatever.
We received the search language. In this particular case, it
was provided directly to me. I conveyed that to my technical
staff, and then they performed the search of the information.
It was my belief at the time that they conducted this
search of the data base or the information, a manual search, as
I remember it, outside of the ARMS records management system.
Subsequent to that, I've learned that that may not have
taken place, but my understanding at that time was that that
was the information that was being provided back to me, and I
conveyed that to the counsel's office, and then they and only
they could actually perform the review and the comparison with
what other documents had been produced and what came up with
that particular search to check and see if there was a problem.
My recollection is that, after that was done, some time
went by and the word that I got back was that, ``Hey, these are
duplicates. It probably isn't that big of a problem because
this information has already been produced.''
Mr. Waxman. It was produced by a separate search of
individual e-mail systems?
Mr. Lindsay. That's what I would surmise.
Mr. Burton. The gentleman's time has expired.
Was the President or the Vice President told about the
problem, to your knowledge?
Mr. Lindsay. I would have no knowledge of that.
Mr. Burton. Ms. Apuzzo is, I guess, one of your superiors?
Mr. Lindsay. That is correct.
Mr. Burton. And you don't recall the phone conversation
that you had with Mrs. Callahan and the people that were in her
office? You say you don't recall that phone call?
Mr. Lindsay. No. I mean, it was over--almost 2 years ago.
Mr. Burton. I know. You don't recall the phone call. And
yet, just a matter of a couple days later, you assisted in
writing a memo to Mr. Podesta from Ms. Apuzzo about--and it's a
pretty complex memo, going into some detail about the problem.
But you don't remember the phone call?
Mr. Lindsay. As I said, the conversation on the phone call
took place over 2 years--about 2 years ago, and it was a very
short duration. At that time----
Mr. Burton. But you remember the memo, though?
Mr. Lindsay. Yes, because I've seen the memo. But I'll be
perfectly honest with you: when this matter was brought to my
attention for the first time, I didn't remember the memo.
Mr. Burton. OK. Now, I want to make sure I've got all this
straight.
You don't remember the phone call, and yet five people from
Northrop Grumman all sat at that table just a while ago and
they all remember the phone call.
Mr. Lindsay. Mr. Chairman----
Mr. Burton. Let me just finish.
Mr. Lindsay. Yes.
Mr. Burton. They all remember the phone call. Three of them
felt that they were threatened with possible jail. All five of
them said they felt some kind of threat or intimidation from
Ms. Crabtree--then Ms. Crabtree, now Mrs. Callahan--but she
said that never happened and doesn't remember anything like
that. That just didn't happen.
I just can't believe that five people would all come here
and lie because I can't figure out why they would do that. Can
you tell me why you think they'd lie to us?
Mr. Lindsay. Mr. Chairman, I can only speak under oath to
those matters for which I have knowledge.
Mr. Burton. I understand. Yes.
Mr. Lindsay. I cannot speak to what was in the content of
other people's intent or what their thoughts were at any
particular time.
Mr. Burton. Sure. How about you, Mrs.----
Mr. Lindsay. All I do know is what my own conduct was and
what I did.
Mr. Burton. And you don't recall the phone call?
Mr. Lindsay. No, I don't.
Mr. Burton. Mrs. Callahan, can you--you worked with these
people. In fact, you said the one lady came to your wedding,
and you said that--and she indicated that you were fairly
close. In fact, I think the supervisor there said that one of
the problems he had was that she confided in you too much. So
evidently she was fairly close to you at some time. Can you
figure out why she and all these other four people would lie
about that meeting?
Mrs. Callahan. Mr. Chairman, after listening to the
discussions earlier this morning, first of all, I don't recall
all five of them saying----
Mr. Burton. Three of them did.
Mrs. Callahan [continuing]. That there was a threat.
Mr. Burton. Three said that they recall either being
threatened or referred to being threatened with jail, because
the one lady--and I don't recall her name right now, but we can
look it up--she said that when she was asked by her supervisor
to tell him what was going on, she says, ``I can't tell you.''
And he says, ``Well, if you don't, you're insubordinate.'' And
she said, ``Well, I'd rather be insubordinate than go to
jail.'' So she felt like there was some threat there. Ms.
Lambuth said the same thing. And the--what was the gentleman's
name--Mr. Haas said the same thing. So three out of the five
alluded to a threat of jail. The other two said that they felt
like they had better keep their mouths shut because it was
pretty clearly stated to them that there might be some--their
jobs might be in jeopardy.
If you didn't hear that, then you weren't listening to the
same five people I was listening to.
So the thing I can't understand is they all don't recall
the jail threat. Three of them pretty much do. Two remember
being--feeling intimidated and threatened. But you're saying
that none of that happened?
Mrs. Callahan. Mr. Chairman, what I am saying is what I
heard this morning. I heard two people say that they had heard
the threat and make that allegation. I heard one person start
by saying no, and then evolved as the day went on into saying
yes. And the other two had no feeling of there being a threat
of jail. I also heard Mr. Haas and Ms. Lambuth contradict each
other as far as what their roles and responsibilities were.
Mr. Burton. That had nothing to do with that phone
conversation in that meeting.
What we will do, for your edification, is we will get a
transcript of the testimony that took place and I will be happy
to send it to you so you'll recall very vividly what they did
say.
I'm just disappointed that five people--either five people
lied or you are. It's one of the two. I just don't understand
this.
Mr. Souder.
Mr. Souder. I thank the chairman. Unfortunately, many
people will--are probably going to watch this on C-SPAN and
will also be able to see.
What I'm confused about here also is that I want to
reconcile something. Mrs. Callahan, what did you--did you tell
the contract employees present that they couldn't talk to their
supervisors?
Mrs. Callahan. I instructed the contract employees at the
meeting that this was an extremely sensitive situation. All of
us were aware of the activities going on in the press at the
time; and the fact that there had already been discussions of
this brought to my attention, that it was going on in the
hallways, was not acceptable; and that our current procedures
and our practices at that time were to deal with the issue in a
purely technical sense, since it was a technical problem that
needed to be resolved, and that's where we needed to put our
energy and time and focus and deal with the issue.
Mr. Souder. So the answer is yes, you told them not to talk
to their superiors?
Mrs. Callahan. I told them if they had any questions they
were to--if anyone approached----
Mr. Souder. The answer is yes; is that not correct? Did you
tell them they shouldn't talk to their superiors?
Mrs. Callahan. Well, their superior was in the room, so
that----
Mr. Souder. You wanted it limited to just those in the
room?
Mrs. Callahan. Those in the room. Yes, sir.
Mr. Souder. Was Mr. Hawkins in the room at the time?
Mrs. Callahan. No, sir.
Mr. Souder. Is not he their superior?
Mr. Hawkins. He was Betty Lambuth's superior.
Mr. Souder. So you told Betty not to talk to her superior?
Mrs. Callahan. I don't recall that, sir.
Mr. Souder. You just said you did.
Mrs. Callahan. I told Betty----
Mr. Souder. You said you wanted it limited to that room
only.
Mrs. Callahan. To that room only, but I did not single out
Mr. Hawkins.
Mr. Souder. I hope people can realize that one of our
frustrations here is that you are making us ask the questions
so precisely, rather than the intent of the question. The
intent of the question is: could people have walked out of that
meeting assuming they weren't supposed to talk to their
superiors? And the obvious answer is yes, because Mr. Hawkins
wasn't in the room. Then you say, well, I didn't ask you
precisely. Whether I said, ``Did Betty Lambuth get asked,'' my
intention was, would they have gone out of that room thinking
that you told them not to talk to anybody outside of that room,
including their superiors who weren't present in the room? And
if some of them had their superiors present, that certainly
answers my basic question.
Let me ask Mr. Lindsay the same question. Did you tell
them--and I know you at this point don't recall a lot of the
phone conversation, but, from you, did you ever imply to any of
them that they weren't supposed to talk to their superiors?
Mr. Lindsay. Did I ever?
Mr. Souder. Yes.
Mr. Lindsay. Is that the question?
Mr. Souder. Yes. Not at a particular phone call.
Mr. Lindsay. No.
Mr. Souder. In other words, would they have gotten the
feeling from you at any point that they weren't supposed to
talk to their superiors or anybody beyond their group?
Mr. Lindsay. My recollection of any conversations that I
had with people at this time was that my No. 1 objective was to
make sure that this problem was resolved, that I got the
information so that I could report that information to my
superiors so that we understood what was going on.
I had no particular interest in having this matter--I think
Laura's characterization is correct. This was another problem.
The problem was to be solved. That's what I wanted to have it
done.
The technical niceties in terms of how they went about
doing it and whether or not Hawkins was involved with it or
whether or not 20 other people were involved with it didn't
matter to me.
As a matter of fact, under the contract I would have been
perfectly happy for the contractor to bring in an expert team
of people from the outside who were familiar with the system to
solve the problem if they were going to perform that under the
contract. I would have been ecstatic to have that happen.
Mr. Souder. Let me ask you a question. Just a minute ago,
in answer to Mr. Waxman's question, you said you absolutely
wanted to limit it to that group.
Mr. Lindsay. What's that?
Mr. Souder. You just said a few minutes ago you absolutely
wanted to limit it to that group. When Mr. Waxman asked you a
question, you said you didn't want the information going
beyond--I wrote it down. ``I absolutely wanted to limit it to
that group.''
Mr. Lindsay. I wanted the information to be limited, but
the definition of ``group'' is the group of people necessary to
solve the problem. That means if Northrop Grumman chose to
bring in 20 people who were going to actually solve the
problem, that was fine with me.
Mr. Souder. So you----
Mr. Lindsay. I would want that group of 20 people to not
tell other staff what was going on with that problem.
Mr. Souder. So Mrs. Callahan was incorrect to communicate
to them that they shouldn't tell anybody outside that room?
Mr. Lindsay. I don't know what she said.
Mr. Souder. But if she told them that, she was incorrect?
Mr. Lindsay. To not to tell anybody outside that room?
Mr. Souder. Yes. That's what she said just a minute ago.
Mr. Lindsay. I don't know what she understood from me at
that particular time. That would be inconsistent with my
philosophy, and I think I corrected that at a later date when I
talked to Mr. Hawkins and made the point very clear to him that
I was perfectly willing to entertain or to have people talk
about or bring this matter into the question. I asked him to
ask me any questions that he wanted to ask me about it. It just
wasn't--that portion of it wasn't important. The concern was
the conveyance of the information to individuals, as Mrs.
Callahan stated in her testimony, to people who are extraneous
to resolving the particular matter.
Mr. Souder. OK. Back to Mrs. Callahan, then, since you told
me that, for example, you told the group that it was supposed
to stay limited to that group, and to Ms. Lambuth that she
wasn't supposed to talk to Mr. Hawkins. Didn't you consider,
because certainly, if it was supposed to be just to that room,
that this could present a big problem to anybody in that room
in their relationship to their superiors outside that room, or
if, for example, as happened with one of the witnesses, they
were called in by Mr. Hawkins and taken over the coals, that
you could be putting them in danger of losing their jobs?
Mrs. Callahan. Well, Mr. Souder, first of all, I
communicated to the group the standard practice, and at that
point in time I had known that Mr. Lindsay was going to talk
with Mr. Hawkins, and that's where the briefing to Mr. Hawkins
occurred.
Also, too, you understand--and I think Mr. Hawkins
addressed it earlier--that there had been numerous conflicts
between Ms. Lambuth and Mr. Hawkins on a regular and routine
basis.
Mr. Souder. Because of her closeness to you.
Mrs. Callahan. Excuse me?
Mr. Souder. He said because of her closeness to you he had
had conflicts with her.
Mr. Burton. The gentleman's time has expired. We'll get
back to you.
Mr. Waxman.
Mr. Waxman. Thank you.
To go back to where I left off, Mr. Lindsay, you found out
you had a problem----
Mr. Lindsay. Yes, sir.
Mr. Waxman. Yet it might have been fixed when you heard
that they were going to do some test on the individual e-mails
of the computers, as opposed to this--what do you call it?
Mr. Lindsay. My analysis at the time was that----
Mr. Waxman. ARMS.
Mr. Lindsay [continuing]. There may not have been a legal
problem in terms of whether or not documents were produced or
whether or not that was completed, but I still had a problem,
and that was I still had a technical staff that reported to me
that there was a glitch. Even if that test came back in a
positive way, I may not have had a production problem, but I
had a technical problem with my e-mail system and my ARMS
system and how they worked together. If that--that was the
issue that I needed to resolve.
Mr. Waxman. So at first some people thought maybe the
problem was corrected, but you came to the realization that the
ARMS issue wasn't corrected?
Mr. Lindsay. Well, my technical staff didn't report to me
that it was corrected until November 1998.
Mr. Waxman. When did you learn there was a continuing
problem with the production of the e-mail?
Mr. Lindsay. With the production, probably--I mean, I don't
know of a problem with the production of e-mails to this day,
other than the information that I have received from this
particular committee and the concerns that are expressed by the
chairman and the members of this committee. I'm not aware--
because I'm not aware of and I haven't seen a technical report
from my staff which has defined what e-mails were not included
in the Armstrong--the ARMS collection system. Until I have that
information, I could not make a conclusion as to whether or not
information was provided or not provided.
Mr. Waxman. One of the questions that many of us on this
committee have is why it took so long for the White House to
notify the committee that some e-mails may not have been
produced. What is your explanation for this delay?
Mr. Lindsay. I couldn't provide an explanation for that
situation other than the fact that I knew that this was a
problem that was very complicated. It is one that, frankly, I
didn't completely understand at the time. And it is one where,
frankly, Northrop Grumman had sent me a proposal for $600,000
to assess just what the nature of the problem was. So it was
fairly complex.
The transmission or the responsibility for transmitting
that information to the committee would be for the counsel's
office or other individuals to do, and not for my office and
the Office of Administration to do.
Mr. Waxman. Now, Mr. Hawkins testified that you and he had
what sounded like a heated exchange. What was that all about?
Mr. Lindsay. Well, I worked very closely with Chairman
Kolbe on the Treasury, Postal Appropriations Committee. They
had made comments to me about the requirements to making sure
that appropriated money we got dollar for value. One of the
things that we had done in our attempt to retrieve our money
from the fenced funding is I was very, very open with them in
exposing our weaknesses and explaining to them the fact that we
had--one of the major problems that we had was administering
and making sure we got dollar for value from contractors. And
the Appropriations Committee essentially said to me, you know,
``You need to make sure that you get that kind of value out of
the agreements.''
So, frankly, from my perspective, when I had a valid
contract with a contractor that I had contracted specifically
to manage our e-mail system, and I had a problem with that e-
mail system, I believed that the work to correct any problem
associated with that system was within the scope of the
contract and their responsibility to correct without additional
remuneration.
Mr. Waxman. And what was his position?
Mr. Lindsay. His position was that they required additional
resources.
Mr. Waxman. So this is a different picture than what we
were presented earlier.
Mr. Lindsay. Absolutely.
Mr. Waxman. Mr. Hawkins acted like you were telling him to
keep it quiet, but what he was really saying to you is, ``If
you want this system fixed, you have to pay me more money to
fix it.''
Mr. Lindsay. Yes.
Mr. Waxman. Because the problem that you now found yourself
in was outside the scope of the contract.
Mr. Lindsay. Absolutely. And I believed it was well within
the scope of the contract. And I----
Mr. Waxman. So you were telling him to fix it so you can be
sure to have all those e-mails in this ARMS setup so that those
e-mails would be available to any committee or anybody who had
the right to get those e-mails?
Mr. Lindsay. Absolutely.
Mr. Waxman. And he was saying to you, ``Well, that's your
problem, buddy. We've done what we can do, but it's not within
the scope of the contract for us to go back and fix it?''
Mr. Lindsay. Absolutely. And if he had communicated his
frustration with me with his superior, the president of the
company, to say that they believe that, I would have no
objection to that, because I was very much dead set and
believed and had been advised by my counsel's office in the
Office of Administration that this work was within the scope of
the contract and taxpayers should not have to pay more money to
have this problem corrected.
Mr. Waxman. I don't know enough about the fight between Mr.
Hawkins and Ms. Lambuth, but it sounds like he was angry at her
for not telling him that there was going to be more work to do,
and he wanted her to tell him there might be more work to do so
that he could say that that wasn't part of the contract and
they would have to renegotiate the contract. Do you know
anything about that?
Mr. Lindsay. I really don't. I do remember that there
were--there was friction between the two, but I don't have any
other recollection about what specifically was the basis
between the differences between those two individuals.
Mr. Waxman. Mrs. Callahan, you don't look very menacing to
me. If I said to you, ``Can I tell my wife about this problem
on the e-mails,'' say back to me, as fiercely as you possibly
can, ``If you do, you're going to have a jail cell with your
name on it.''
Mrs. Callahan. I can't even say that, sir. I don't behave
that way. I guess I----
Mr. Waxman. Well, even if you said it, I must tell you I
don't think I'd be too afraid of you, but that's my own
subjective sense of you as a witness and these other people
seemed to in their testimony say they were terrified that they
may go to jail.
They also said, not only were they terrified they were
going to go to jail, but they understood you wanted the problem
fixed, so they were trying to work with you to fix it. Was that
your understanding of what was happening when the problem was
discovered?
Mrs. Callahan. Yes, sir. That's my understanding. It was
very imperative to us that we find out what the size and the
scope of the problem was, and it was critical that we figure
out what we needed to do to fix it.
Mr. Waxman. Let me just give you an opportunity. Is there
anything you want to say, anything you think we need to know
about this hearing and all the things that have been talked
about today? Any points you think that you should bring out to
us?
Mrs. Callahan. There are a couple things I would like to
address. It pertains----
Mr. Waxman. Let me extend that to both witnesses.
Mr. Lindsay. Thank you.
Mrs. Callahan. Thank you.
In regards to Mr. Souder's concerns, there was a tremendous
amount of friction between Ms. Lambuth and Mr. Hawkins, and it
was--it may have been perceived by Mr. Hawkins as a
relationship with myself and with Ms. Lambuth; however, I
believe, if you talk with him specifically and look at the
record, there was numerous and different occurrences that
prompted their friction.
Ms. Lambuth had confided in me that she was pursuing EEO
action against Mr. Hawkins, and this was all happening prior to
the anomaly being discovered.
In addition to that, as far as being in--I think you might
have referred to it as being in ``somebody's pocket,'' I am,
quite frankly, a career civil servant, and I am not in
anybody's pocket, never have been, and I never plan to be, nor
will I ever put myself in that position.
And as far as Ms. Lambuth attending my wedding, I was very
happy to see her, and there had never been any acknowledgement
of her being threatened or fearful of me prior to when I read
it in the Washington Times.
And also, just for fairness, too, Mr. Hawkins attended my
wedding shower on September 3rd, as well.
Mr. Lindsay. The only thing that----
Mr. Waxman. Is there anything you want to add?
Mr. Lindsay. Most certainly.
The only thing that I would like to add is that I worked
very, very hard as general counsel to try and create the
institutions within the Executive Office of the President and
the Office of Administration so you'd have safety valves for
people if they did feel uncomfortable, through our EEO office.
One of the things that we did is we elevated the EEO office
from within human resources to its own division so that it
would have its own ability to be able to stand on its own, so
individuals would be able to go and communicate any kind of
concerns that they had with them quite freely.
The EOP security office was also there, where individuals
could have raised issues or concerns about any kind of threats
or intimidations or fear.
Both of those offices are run by career staff who, frankly,
spent more time working in other administrations than working
in this particular administration.
I did everything I could to create that kind of environment
where they could feel free to do it. There was no information,
absolutely nothing that came to me, my boss, or anyone else who
was around me who reported to me that Mrs. Callahan's conduct
was inappropriate or that I had done something that was
inappropriate, because the first thing that I would have done
at that particular time, if it would pertain to me, is I would
have handed it over to the EOP security office and asked them
to do an investigation as to what was going on.
And the reason why I would have done that so readily is not
only do I believe, as a matter of principle, it's the correct
thing to do, but I didn't fear what was happening because I
knew that I didn't say or do anything wrong in that respect.
That time period is one where there were lots of
difficulties in addressing the Y2K issue and working out our
relationship, the bad relationship that we had with Congress. I
believe that that was completed within the spirit of what I
truly believe, in terms of the respect that I have for this
institution and for the institution in which I worked over
there, and I was very proud of the fact. And I think if you
were to go and talk to folks--the Republicans on that
committee, I think that they would say--and if you look at the
transcript of my testimony, that they believe that I was very
forthright and direct with them.
And so one of the things that pains me the most in this
process is the fact that my reputation, which I worked very
hard for, is being sullied by these kinds of charges. I can't
provide you with an explanation for what would motivate people
to say those kinds of things about me, but all I can tell you
is what I do know, and that they are, indeed, false.
Mr. Burton. The gentleman's time has expired.
Mr. Souder. Mr. Chairman, point of personal privilege.
Mr. Burton. The gentleman will state his point of personal
privilege.
Mr. Souder. Mrs. Callahan made a reference to something I
said, and I wanted to make sure the record was clear. I never
accused her, nor did anybody else, of being in anyone's pocket.
The charge was that someone else was in your pocket. I keep
forgetting the witness' names. I'm sorry. And that if she was,
in fact, confiding in you that she was going to possibly sue
her superior, I think that kind of proves, to some degree to
him today, why he thought that.
But nobody was accusing you of being in anybody's pocket in
that sense, and if that was misunderstood, I apologize.
Mrs. Callahan. Thank you. I appreciate that.
Mr. Burton. Mr. Barr, would the gentleman yield to me
briefly?
Mr. Barr. Briefly. Certainly.
Mr. Burton. Thank you.
I have just a couple of questions.
Mr. Hawkins said that he went to a meeting and they were
talking about this issue, and--shut the clock off until this
is--would you like to comment, Mr. Waxman?
Mr. Waxman. Mr. Chairman, just so we have a clarification
and you should start again, I thought we were doing three 10-
minute rounds and then 5-minute rounds each. Are we doing
something else? Are we giving everybody 10 minutes? If so, we
ought to have what the rules are, but this is what we were told
on our side was the agreement.
Mr. Burton. We'll give you 10 minutes, Mr. Waxman.
Mr. Waxman. What is your understanding of how you are going
to conduct the hearing?
Mr. Burton. The understanding was that we were going to
have 10-minute rounds.
Mr. Waxman. Every side? Each side or each Member?
Mr. Burton. That was my understanding.
Mr. Waxman. And that is unlimited rounds?
Mr. Burton. I don't think we have too many more rounds to
go.
Mr. Waxman. Well, if that's what you want to do, go ahead
and do it, but that wasn't what we were told.
Mr. Burton. OK.
Mr. Waxman. But we also were told that Beth Nolan would
testify, and then that was yanked from the agenda without our
approval or even being advised of it.
Mr. Burton. I thank the gentleman for yielding.
Mr. Waxman, I explained the issue of Beth Nolan. You can
continue to beat on that horse if you want to, but we have
explained it.
Now, Mr. Hawkins said at a meeting that you told him, Mrs.
Callahan, that everything was fine before you stepped in. Did
you say that?
Mrs. Callahan. No, sir.
Mr. Burton. So----
Mrs. Callahan. I worked with Betty Lambuth on the
situation.
Mr. Burton. But you said everything was fine. He said that
you said, ``Everything was fine until you stepped in,''
referring to--you didn't say that?
Mrs. Callahan. No, sir. I don't understand the----
Mr. Burton. So not only are the five people lying that
testified earlier about what was said at that meeting, but also
when Mr. Hawkins talked to you separately at a meeting, you
didn't say that, so he's lying, as well?
Mrs. Callahan. I did not have a meeting separate with Mr.
Hawkins.
Mr. Burton. Did you ever meet with Mr. Hawkins?
Mrs. Callahan. I worked with Betty Lambuth.
Mr. Burton. So you never met with Mr. Hawkins?
Mrs. Callahan. Mr. Hawkins worked with Mark Lindsay and
Paulette Cichon.
Mr. Burton. Did you ever meet with Mr. Hawkins?
Mrs. Callahan. Not on this issue.
Mr. Burton. Did you ever meet with Mr. Hawkins?
Mrs. Callahan. There may have been a few occasions during
my year there.
Mr. Burton. Did you ever say to him, ``Everything was fine
until you stepped in?''
Mrs. Callahan. No, sir. I don't recall that.
Mr. Burton. So Mr. Hawkins is lying and the other five
people are lying and you're telling the truth? All five of them
and Mr. Hawkins are now lying?
Mrs. Callahan. Yes.
Mr. Burton. Now, let me ask you a question, Mr. Lindsay.
Mr. Lindsay. Yes, sir.
Mr. Burton. You said everybody wanted the problem fixed.
That was 2 years ago.
Mr. Lindsay. Yes, sir.
Mr. Burton. Two years ago.
Mr. Lindsay. Yes, sir.
Mr. Burton. We had a subpoena out in 1997, 1998, and 1999,
all pertaining to various investigations that these e-mails
would be relevant to or could be relevant to. You said you
want--everyone wanted the problem fixed, and here we are today
still at ground zero. Nothing is being done. Why is that?
Mr. Lindsay. First off, I would beg to differ, Mr.
Chairman, with the characterization that nothing is being done.
A lot was done.
One of the first steps in the reconstruction process was to
fix the glitch in the first place. And I will tell you this: I
was not happy or glad that it took from June until November to
fix the glitch. I would have liked for that glitch to have been
fixed a lot sooner.
Mr. Burton. Yes.
Mr. Lindsay. The reason why that date in November is very
significant is that in November, that very same month, we
received the money that we needed to engage in our activities
on Y2K.
Mr. Burton. We are now at March, middle of March, late
March of the year 2000. The documents that we have requested or
demanded in our subpoenas, as well as the independent counsel
and the Justice Department, have not been given to us, so the
problem has not been solved. We don't have those documents.
Mr. Lindsay. I think we're talking about two different
problems.
Mr. Burton. I don't think so.
Mr. Lindsay. The legal problem of producing the documents
that you are looking for, I have no knowledge of what
information was provided to you, so I could not testify or
provide information to you as to whether the information that
is in question was provided or not provided.
Mr. Burton. You said that everyone wanted the problem
fixed, and yet Mr. Barry, in his e-mails that we quoted from
today, said he was frustrated. He testified today he was
frustrated because he had contacted, I guess, you and others
saying, ``Hey, this thing has got to be fixed. It's a mess.''
Mr. Lindsay. I don't have any recollection of Mr. Barry
communicating with me about that, but I shared and share his
frustration with the fact that it wasn't fixed at a more
expedited fashion. I would--I had every desire that that would
happen. I had every desire and would have welcomed the
contractor bringing in whatever the best and the brightest was
in their company to address this problem. But we handed the
resolution of this issue to our contractor.
Mr. Burton. You said the best and the brightest, whoever
they were, you would be happy to have them brought in, and yet
Ms. Crabtree, now Mrs. Callahan, told them not to tell anybody,
especially their superiors, about the problem.
Mr. Lindsay. It is my understanding of Mrs. Callahan's
testimony is that she believed that I would communicate with
their superiors, and I did.
Mr. Burton. And you did?
Mr. Lindsay. Absolutely.
Mr. Burton. And that's why she said, ``Don't tell anybody
about this. I don't want you telling anybody about this,
especially your superiors?''
Mr. Lindsay. Like I said, her understanding, as I recollect
her testimony, was that I would communicate with their
superiors, which I did. I not only had communications with
those particular individuals, but I had communications and
received a letter--a September 16th letter, I believe--which
made reference to this particular matter, which showed that
they had knowledge and information about the whole thing,
essentially raising the same issue again about payment.
Mr. Burton. The bottom line is we subpoenaed documents
three--over 3 years ago. Relevant documents are probably and
possibly in those--possibly in those e-mails. You've known
about this, and Mrs. Callahan has known about this now for
almost 2 years, and nothing has been done or delivered to the
Congress of the United States.
And when the people who are charged with the responsibility
of dealing with this problem testified, they testified that
they were threatened about keeping their mouths shut, and yet
you folks don't remember anything about it, you don't remember
the phone call, she says the five people are lying, plus Mr.
Hawkins is lying.
I just tell you----
Mr. Lindsay. Mr. Chairman----
Mr. Burton [continuing]. It just boggles my mind that you
can't remember a phone call, she says the other six people are
lying, and this was two separate incidents. You know, it just--
it stretches credulity.
Mr. Lindsay. Mr. Chairman, my recollection is extremely
vivid on the fact that I wanted to have the problem resolved.
My recollection is very vivid with the fact that I did convey
this information to the appropriate individual.
Mr. Burton. Yes, you did. You did.
Mr. Lindsay. My information----
Mr. Burton. You did. You don't remember the phone call, but
within just 2 days after that you sent a memo or participated
in writing a memo to Mr. Podesta giving him all the details. I
can't--that's why it just boggles my mind you can't remember
that phone call.
Mr. Lindsay. Well, I remember conversations, and I
certainly remember, from the time that I worked on the Hill,
when Congressman Stokes had a conversation with me, he was my
superior, I remembered it. There were plenty of other people
who may have come through the office that I may not have had a
specific recollection of, and if you were to ask me of the many
hundreds or thousands of conversations that I had with
individuals during that particular time period, I would not be
able to necessarily provide you with the details of those
conversations.
There were numerous and there are plenty that were very,
very important.
Mr. Burton. We understand.
Mr. Barr.
Mr. Barr. Thank you.
Both of you went on at some length telling us about awards
and background and so forth, and I might have missed this. Do
either of you have a law degree or a legal background?
Mr. Lindsay. I do.
Mr. Barr. OK. Mrs. Callahan.
Mrs. Callahan. I do not.
Mr. Barr. Are these lawyers with you? They haven't been
identified, and they have been rather quiet. Are they lawyers
with you?
Mr. Lindsay. Yes.
Mrs. Callahan. Yes, sir.
Mr. Barr. Who are they and who has retained them to be here
today?
Mr. Lindsay.
Mr. Lindsay. Peter Kadzik. And I retained him to be with me
today.
Mr. Barr. Personally?
Mr. Lindsay. Yes, sir.
Mr. Barr. And, Mrs. Callahan, who is this gentleman?
Mrs. Callahan. This is Mr. Ralph Lotkin, and I retained him
personally.
Mr. Barr. OK. Thank you.
You may, Mr. Lindsay, be familiar with sort of a common
misperception--you may not, Mrs. Callahan, but, for example,
one of the statutes in Title 18, which is the U.S. Criminal
Code on obstruction of justice, is entitled, ``Tampering with a
Witness, Victim, or an Informant,'' and there is a common
misperception that there has to be a specific legal proceeding
pending so that when a person who might be charged with
obstruction tells a person not to tell somebody something, or
intimidates them in some way not to disclose information or a
document, or to alter or destroy or mutilate or conceal any
documents, that there has to be, in order for obstruction to
occur, a specific legal proceeding within the context of which
that tampering takes place.
That's not the case. So if anybody has advised you that
there has been no obstruction here simply because there may not
have been a specific request pending for these particular
documents at the time, that's not true.
And we do have evidence that you all indicated to persons
not to share information, not to disclose information, to
withhold information. Now we're arguing, as your administration
is very, very adept at parsing words. Was a person in the room?
Did a specific representation or admonition be directed to a
particular person at a particular time or to a group of people?
But the fact of the matter is that there is evidence that
both of you told individuals, some of whom were here earlier
today, to say nothing to anybody else without your explicit
authorization; that you were prohibited from disclosing
information to other people; that you were to write down as
little as possible relating to this matter, not to work on
networked computers or to send further e-mails.
And one question that came to my mind, in reading the
background of this case and listening to the testimony today,
the independent counsel is certainly not an employee, an
employer, or a supervisor of these people, neither was or is
Mr. Burton, the chairman of this committee, neither is Mr.
Hyde, who chaired the impeachment proceedings. All of those
things were ongoing. There were consideration of impeachment
proceedings; there was this committee conducting a series of
investigations; the Office of Independent Counsel, Judge Starr,
was conducting a well-known investigation of these very matters
about which brings us here today.
I'm not----
Mr. Burton. The time of the gentleman from Indiana that was
yielded to you has expired, and I'll recognize you now for 10
minutes.
Mr. Barr. Thank you, Mr. Chairman.
The fact of the matter is that it does appear that steps
were taken to limit very severely information surrounding a
very serious glitch in the White House computer system that
related specifically the matters well known to be under
investigation by at least three different bodies--namely, the
Office of Independent Counsel, this committee, and the
Judiciary Committee.
And, notwithstanding the fact that any one of those
particular proceedings might not have been pending at the time,
although the work of the independent counsel certainly was
pending at that time, that you all took steps, according to
testimony--which you dispute. I understand that you are
disputing the testimony of other witnesses just as much under
oath as you are today. And this is disturbing to us.
Frankly, to say that all of this is simply to be sloughed
off as a--I think that one of you all's quote was a ``major
infrastructure problem,'' or because there were just too many
hearings up here that occupied your time and it might have been
a little confusing to deal with this or to remember something
relating to this, or--and this is the granddaddy of them--Mr.
Lindsay apparently saying that Hawkins was trying to extort
money from you or something?
Mr. Lindsay. It was far from extortion. He was exercising
his rights, which were perfectly legitimate, and I did not have
an objection to him making the claim that this was outside the
scope of the contract. That was 100 percent of his rights to
exercise. No argument with him as to that.
Mr. Barr. So you all agree famously.
Mr. Lindsay. We didn't agree on the conclusion. He had a
perfect and 100 percent right to make the assertion that he did
and to communicate and to get whatever support from his counsel
at Northrop Grumman or whatever superior he wanted to make that
particular assertion, and I do not argue with him on that point
one iota.
Mr. Barr. OK. Let me go back to the earlier testimony--and
I know we've gone over this, but it bears going over again.
Both of you instructed the employees that we've heard from
today to say nothing about this matter without your explicit
authorization; is that correct?
Mr. Lindsay. That's not correct.
Mr. Barr. You dispute that.
Mr. Lindsay. I gave him permission----
Mr. Barr. Do you dispute that, Mrs. Callahan?
Mr. Lindsay [continuing]. To----
Mr. Barr. No, I'm just--you dispute that?
Mr. Lindsay. Yes.
Mr. Barr. OK. The others are lying and you're telling the
truth is your testimony today?
Mr. Lindsay. I can only testify about information which I
know about. I cannot testify about what the state of mind or
what their intentions are in saying whatever they are saying.
Mr. Barr. You do have a legal background.
Mr. Lindsay. I know the truthfulness of what I say.
Mr. Barr. Very clever.
Mr. Lindsay. Thank you.
Mr. Barr. Mrs. Callahan, did you instruct these individuals
not to say anything to anybody without your explicit
authorization?
Mrs. Callahan. I instructed the individuals to follow the
current practice that was in place at the time, which was to
focus on the issue at hand and get to the----
Mr. Barr. Did you instruct these individuals not to say
anything without your explicit authorization?
Mrs. Callahan. I instructed them to refer questions----
Mr. Barr. Yes or no?
Mrs. Callahan [continuing]. To me.
Mr. Barr. You can answer no. I want a yes or a no. That's
all. Did you instruct these individuals to say nothing about
this matter without your explicit authorization?
Mrs. Callahan. No, I did not.
Mr. Barr. OK. Very nice.
Did you, both of you or either of you, specifically
prohibit them from disclosing these matters or any information
relating thereto to coworkers or spouses?
Mrs. Callahan, yes or no? Did you so instruct them?
Mrs. Callahan. No, sir. I just instructed them on the
procedures.
Mr. Barr. Did you, Mr. Lindsay.
Mr. Lindsay. No, I did not, sir.
Mr. Barr. OK. Did either of you instruct these individuals
or any of these individuals, collectively or individually, to
not write any information down or as little information down on
a record about these matters?
Did you instruct anybody along those lines, Mrs. Callahan?
Mrs. Callahan. No, sir.
Mr. Barr. OK. And Mr. Lindsay.
Mr. Lindsay. No.
Mr. Barr. OK. Did either of you indicate to anybody not to
work on any networked computers or send any further e-mails
relating to this project?
Mr. Lindsay. No, sir.
Mr. Barr. Mrs. Callahan.
Mrs. Callahan. No, sir.
Mr. Barr. OK. Neither of you, though, I presume, instructed
these individuals to be as forthcoming and truthful as possible
if anybody asked them about any of these questions? Or are you
going to go so far as to say you encouraged them to talk about
these things?
Mr. Lindsay. Your statement is ``anybody.''
Mr. Barr. Any of these individuals, not anybody. I'm
talking about any of these individuals that we're talking about
here today, Mr. Lindsay.
Mr. Lindsay. What I wanted them--the information that I
conveyed to Mr. Hawkins or the Northrop Grumman leadership and
to Laura was that the individuals who needed to have
information about this matter to solve the problem, I had no
problems with them communicating with it.
Mr. Barr. What about if the independent counsel had asked
about it or a congressional committee?
Mr. Lindsay. I've got no objection whatsoever. They were
perfectly free, and there was nothing at all that I could do or
would do to stop them from communicating that.
Mr. Barr. If we believe you.
Mr. Lindsay. Excuse me?
Mr. Barr. If we believe you----
Mr. Lindsay. Absolutely.
Mr. Barr [continuing]. That you did not do any of these
other things, which the witnesses have said that you did.
Mr. Lindsay. The truth is that I would not have had within
my power or stop them or had any means to stop them from
communicating with whomever they wanted to communicate about
the work that they had. It was my desire that they communicate
this information to those individuals who were necessary to
solve the problem. It was my hope that they would respect that
in the interest of the individuals who could possibly be harmed
by sharing of this information in idle gossip.
Mr. Barr. What idle gossip are we talking about? I didn't
know we were talking about idle gossip.
Mr. Lindsay. If someone were to say or to convey that,
``Hey, your name showed up on this particular list and this is
what e-mails--this is what information is contained in those e-
mails.''
Mr. Barr. I really don't think that that's what we're
talking about here at all. We're talking about something a
little bit more systematic than idle gossip here. What we're
talking about here is a serious problem with a computer system
that appeared, to technical individuals charged with
responsibility for it, was missing perhaps a great deal of
information. I don't think we're talking about idle gossip, and
I really don't think that that's what these individuals came
away from, that you simply told them not to engage in idle
gossip.
Mr. Lindsay. My testimony was and continues to be that I
have no, had no, will have no objection to them communicating
to any individuals that were necessary to resolve the problem.
Mr. Barr. And that's--forgive me if I say that's all fine
to talk about that today, but there is testimony under oath on
the record that is quite contrary to that. And the fact is--I
mean, I know you all keep saying this, that simply because you
had no legal authority to fire somebody or to terminate a
contract, therefore, of course, you couldn't have even made
such a statement. I mean, that's just bogus.
Mr. Lindsay. That's not the only reason, sir.
Mr. Barr. I didn't say that that was the only reason. What
I'm saying is both of you all have made those statements, and
they're absolutely meaningless. People make threats all the
time, even though they may not be in a legal position to carry
out those threats or have the legal authority or power to do
it. But, thankfully for Federal prosecutors, that is not
required under the obstruction statute. You don't have to
actually have the power to follow through on your threats or
the legal authority to do so to be guilty of obstruction.
Mr. Lindsay. Sir, the obstruction statutes wouldn't be the
reason why I wouldn't do it. The--my moral code would be the
reason why I wouldn't do it.
Mr. Barr. Just like you can't get in the minds of the other
witnesses, I can't get into your mind, so, I mean, certainly
that's--I hear what you're saying, and they're very self-
serving statements, and they're delivered very eloquently and
repetitively and I understand that. But my concern, as--perhaps
as a former prosecutor and somebody that, unfortunately, had to
spend a great deal of time over the last 2 years looking at
these obstruction statutes, that we're faced with a situation
very similar to some of the considerations we looked at in
the--fact situations that we looked at in the Judiciary
Committee, where there is pressure brought to bear on people
with information that is or might be relevant to an
investigation or an official proceeding.
And it's not idle gossip, Mr. Lindsay. What we're talking
about here are matters involving people of interest to the
Office of Independent Counsel, to an impeachment proceeding of
this House, and to the oversight responsibilities of this
committee. These are very serious matters.
Mr. Lindsay. Absolutely, sir.
Mr. Barr. And when we are faced with several witnesses who
state under oath, both in court proceedings and before this
body, that there was pressure, that there were threats made,
and we hear that from several different people, we're not going
to disregard it just because you all come in here with very
long pedigrees that you tell us about and expect us to think
that, just because you have all these degrees and have all
these awards and some people came to your weddings, that none
of this ever happened. We are going to look at it a little more
carefully than that.
Mr. Lindsay. I would hope. I mean, I believe that there is
more than that that supports what I'm saying and what Mrs.
Callahan is saying. I believe that the record is replete with
examples of why the story that I am saying is supported.
First, these people and people at Northrop Grumman made the
argument to me as to why this should be something that was
arguing within the scope of the contract. What was within the
scope of the contract? How would they know it wasn't within the
scope of the contract if they didn't know what work was to be
performed? They knew about it. I made----
Mr. Barr. My main concern is----
Mr. Lindsay [continuing]. No objection.
Mr. Barr. My concern with obstruction of justice does not
hinge on whether something was technically within the scope of
the contract or not.
Mr. Lindsay. I understand that.
Mr. Barr. We're looking at the underlying data base, the
underlying information that, by every appearance, was relevant
to ongoing investigations of this Congress and the independent
counsel.
Mr. Burton. The time of the gentleman from Georgia has
expired.
Mr. Waxman, the ranking member, would like us to clarify
for the record--and let me just say this--we originally agreed
to three 10-minute rounds and then go to 5-minute rule. The
minority has agreed to go to 10-minute rounds instead of the 5-
minute rounds. Just a clarification for the record.
With that, for 10 minutes I recognize the gentleman from
California, Mr. Horn.
Mr. Horn. Thank you very much, Mr. Chairman.
Mrs. Callahan----
Mrs. Callahan. Yes, sir?
Mr. Horn [continuing]. Tell me, you were in the Office of
Administration at the White House; is that correct?
Mrs. Callahan. That's correct. The Office of Administration
for the Executive Office of the President.
Mr. Horn. Right. And when did you join that office?
Mrs. Callahan. September 30, 1996.
Mr. Horn. 1996?
Mrs. Callahan. Yes, sir.
Mr. Horn. And what were you paid?
Mrs. Callahan. Excuse me?
Mr. Horn. What was your pay scale?
Mrs. Callahan. I was a GS-14.
Mr. Horn. GS-14?
Mrs. Callahan. Yes, sir.
Mr. Horn. Were you on loan from an agency?
Mrs. Callahan. No, sir. There was a vacancy announcement
that I competed for and was selected for.
Mr. Horn. Did you have people that reported to you in that
Office of Administration?
Mrs. Callahan. Initially, sir, when I was the program
manager for the Lotus Notes and Windows/NT environment, the
folks that I worked with were mainly contractors, because that
function was contracted out.
Mr. Horn. Well, are these one or two people you had
reporting to you? I'm trying to get the line. And did you have
a staff working for you?
Mrs. Callahan. It was a mixed staff between Federal and
contractors, and the contractors--when I was initially hired on
as the Lotus Notes-Windows/NT program manager, the after 6 p.m.
bulk of the people were all contractors, and I worked through
the contract supervisors.
Mr. Horn. Now, these are different contracts than the one
we've been talking about today?
Mrs. Callahan. Yes, sir. The contract changed in 1997. In
October 1997, the previous contractor left and Northrop Grumman
came on board in a very tenuous and tumultuous contract
turnover. It was very stressful.
Mr. Horn. Well, I'm sure it was. I'm amazed sometimes what
happens to them, and it doesn't matter whether they're
Democrats, Republicans, Conservatives, Liberals--doesn't
matter. But they change, and they get into the White House
atmosphere. First thing they do is pick up the phone and call
their mother, usually, and they start writing on White House
stationery and all that. And some who have been on the Hill
suddenly, or for the President as dictator down there, we're
all idiots. So I have been used to that. And I'm just curious
if it could be possible that someone on your staff used the
word ``jail'' and whatever, if you sent them over there to
scare the people or just make sure there wouldn't be any leaks.
I can understand that, if you don't want any leaks, and
somebody might have blurted out ``jail'' or whatever.
Is that possible? Would anybody on your staff have done
that?
Mrs. Callahan. I can't attest to what staff members would
say, sir. All I can do is tell you what I know and what I said
as an individual, and I did not use the term ``jail.''
Mr. Horn. Well, did you ever send any of your staff over to
talk to the people that have been before us on panel one this
year?
Mrs. Callahan. No, sir. I worked directly with Betty
Lambuth.
Mr. Horn. I can't hear you. It's very difficult. Would you
put that closer?
Mrs. Callahan. All right. No, sir. I said I worked with
Betty Lambuth directly. She was the leadership individual on
the contractor's side that was responsible for supporting the
day-to-day activities for the contract in order to keep the e-
mail systems running.
Mr. Horn. Was there anything, when you talked to her, that
could have led her to say, ``They threatened us with jail if we
spilled the beans on anything here?''
Mrs. Callahan. Nothing that I would have said to her, sir.
No.
Mr. Horn. OK. So you can't think of any words--it's not
unreasonable, if you have been charged by the Office of
Administration, to say, ``Get that contract moving, and why
don't you go over there and tell them something,'' I can see
that happening in any White House, so I'm just curious if that
happened and you went over there because the heat was on you to
get that contract moving.
Mrs. Callahan. No, sir. The only heat that was on me was to
find the scope and depth and breath of the problem, and that
was the heat that I reiterated to Betty Lambuth. It's a fact
that we needed to find out, technically speaking, what was the
problem and how to approach it and what did we need to do to
fix it. And then, after that, I left with my involvement on
this particular project.
Mr. Horn. Did anybody else act in your name in the next few
weeks?
Mrs. Callahan. It would be up to my immediate supervisor,
who was Kathy Gallant, to address that issue.
Mr. Horn. And did she ever meet with any of the people in
the contract that Northrop Grumman had?
Mrs. Callahan. I don't have first-hand knowledge, but what
I heard today was some references to Kathy Gallant, so I would
assume there had been some discussion.
Mr. Horn. Well, I just--you obviously have a lot of talent
or you wouldn't be down there in the Department of Labor,
presumably, in charge of a technology center, but I have seen
strange behavior by Democrats and Republicans when they get in
the aura of the White House, and I just wonder. Sometimes
people are going to blow their stack at people and don't even
think about it. They go back to the office and say, ``I guess I
told them, and maybe they'll do it,'' or not do it, as the case
may be.
And that couldn't have happened to you when you were just
sort of fed up with the contract administration?
Mrs. Callahan. No, sir. I don't blow my stack. In fact,
folks that know me and have worked with me, they have a joke on
the back side of things in that they are waiting for the day
when I do lose my temper because they've never seen that happen
yet, and so they joke about that with me.
Mr. Horn. Well, I think I'd probably agree with them that I
wouldn't want to be around you when you had one of those
explosions, but just wondering how you're feeling.
So let me move on, Mrs. Callahan.
Did you report the problem that would come up with this
computer contract at any time to any other White House
employee?
Mrs. Callahan. I reported the problem with the e-mail
anomaly to Mr. Lindsay. I didn't deal with any issues involving
the contract. That wasn't within the scope of my
responsibilities, nor do I have that expertise.
Mr. Horn. So it was--you initially reported to Mr. Lindsay
then?
Mrs. Callahan. Yes, sir.
Mr. Horn. On that.
Mrs. Callahan. My immediate supervisor, Kathleen Gallant,
was not there, and I do not recall why. Paulette Cichon would
have been the next in the chain of command, and she was out of
the office at the time when I went to look for someone to
notify, and in which case I saw Mr. Lindsay in his office, and,
as the chief of staff, I notified him that we had another
anomaly.
Mr. Horn. How about, did you report it to Ada Posey?
Mrs. Callahan. No, sir.
Mr. Horn. You did not. What was Ms. Posey's position?
Mrs. Callahan. She was the director of the Office of
Administration.
Mr. Horn. And you didn't report to her?
Mrs. Callahan. No, sir.
Mr. Horn. Well, who in the hierarchy of the Office of
Administration did you report to?
Mrs. Callahan. I reported to Kathleen Gallant.
Mr. Horn. And what was her title?
Mrs. Callahan. She was the associate director for
information systems and technology in the Office of
Administration.
Mr. Horn. Now, did she report to Ada Posey?
Mrs. Callahan. She reported to Paulette Cichon.
Mr. Horn. And what was her title?
Mrs. Callahan. I'm not sure of her exact title, sir. I
wouldn't want to misrepresent it.
Mr. Horn. How about Virginia Apuzzo? What was her position?
Mrs. Callahan. Virginia Apuzzo, to my understanding, was
the special assistant to the President for management and
administration, and the chain of command, sir, would be, the
way I understood it, was Ms. Virginia Apuzzo, Ms. Ada Posey,
and then Paulette Cichon, then Kathleen Gallant, and, of
course, Mr. Lindsay, working with Ms. Posey as the chief of
staff.
Mr. Horn. Now, could it be possible that when you gave him
a report that, ``Hey, this thing isn't working,'' that they
sailed over there and said something to the staff?
Mrs. Callahan. You would have to ask them, sir. I can't
speak for them.
Mr. Horn. Well, you're saying you don't have any knowledge
that anybody above you in the hierarchy went saying, ``Look,
I'm tired of all this mess--'' and I can believe that. I've had
a few computer things where they just don't tell you the truth,
and so you get really wound up. So did any people above you
say, ``Look, we've had it with them. Let's go and tell them a
few things?''
Mrs. Callahan. In my brief interaction with this
situation--again, I was only involved for about the first week
or two with the problem--I don't recall any of the occurring,
but I can't say what happened after I was off of the project.
Mr. Horn. When was the White House counsel's office first
informed?
Mrs. Callahan. I'm not sure, sir. That wasn't in my job or
my duty to inform them of anything.
Mr. Horn. And was the informant in the counsel's office Mr.
Lindsay? Is that the one people reported to, generally, with
this problem?
Mrs. Callahan. I reported the problem to Mr. Lindsay, and
then after that I understand that Kathleen Gallant and Paulette
Cichon took over the management of the project, and I'm not
sure what the reporting chain was that they established.
Mr. Horn. Well, can you tell us about everyone who was told
about the problem? I mean, how many people were in on what was
going on over there?
Mrs. Callahan. The Lotus Notes team, which were all the
contractors, Mr. Lindsay, myself, Paulette Cichon, and I
understand Kathy Gallant, too, as well, because when she came
back from her absence she notified me that she was taking over
the project, so someone had briefed her by then.
Mr. Horn. Did you report the problem to Michelle Peterson
on the White House counsel's staff?
Mrs. Callahan. No, sir. I don't know Michelle Peterson. I
just know of the name.
Mr. Horn. So you didn't--you're saying that Mr. Lindsay was
the only person in the Office of White House Counsel that had
knowledge, at least from you?
Mr. Lindsay. I wasn't in the Office of--I was general
counsel for the Office of Administration, not in the Office of
White House Counsel.
Mr. Horn. I see. So you were in the Office of
Administration?
Mr. Lindsay. Correct, sir.
Mr. Horn. OK. Now, did you report to anybody, either one of
you, in the counsel to the President's Office?
Mr. Lindsay. Did I tell them about the problem?
Mr. Horn. Right.
Mr. Lindsay. Absolutely.
Mr. Horn. OK. Did you ever do that, Mrs. Callahan?
Mrs. Callahan. No, sir. I informed Mr. Lindsay.
Mr. Horn. Did anyone else, to your knowledge, in the White
House counsel's office--who did you brief there?
Mr. Lindsay. I was directed by the assistant to the
President for management and administration to talk to Charles
Ruff, and I did.
Mr. Horn. The counsel?
Mr. Lindsay. The counsel.
Mr. Horn. Yes.
Mr. Burton. The gentleman's time has expired. If you have
further questions, we'll get back to you.
Mr. Mica.
Mr. Mica. Thank you, Mr. Chairman.
Mr. Lindsay, you said----
Mr. Lindsay. Yes, sir?
Mr. Mica [continuing]. It was your job to see that searches
requested by the White House counsel were conducted; is that
correct?
Mr. Lindsay. No. The searches by the White House counsel
were--the language and the definitions went directly from the
White House counsel's office to a member of White House staff
who performed the search. It did not go through me.
Mr. Mica. So what did you do? You said you were primarily a
conduit? You never conducted any searches? What were you--what
was your role?
Mr. Lindsay. I was the general counsel. We had--we
performed services which ranged from procurement, the----
Mr. Mica. But you're saying you never conducted any
searches?
Mr. Lindsay. I was only involved in one search, only one in
the entire time.
Mr. Mica. Which was that one?
Mr. Lindsay. That was the one where folks from the
counsel's office gave me four names, which I conveyed to folks
in--my technical folks, who performed the search. That is the
only search.
Mr. Mica. But you--other than that, you were not interested
in any information that had been obtained, right? You were
just--your job was to see that things were executed in an
administrative fashion?
Mr. Lindsay. This----
Mr. Mica. Making sure the systems worked, etc. Otherwise,
why would Mrs. Callahan tell you that things weren't working?
Mr. Lindsay. Right. I mean, it was----
Mr. Mica. That was your role.
Mr. Lindsay. Right. Exactly--to maintain the systems and to
provide advice and guidance.
Mr. Mica. Now, Mrs. Callahan testified earlier that she
came and told you that there was a technical problem, right?
Mr. Lindsay. Yes, sir.
Mr. Mica. Did she also tell you that people were--that
someone had uncovered some information regarding--relating to
Ms. Lewinsky or some matters?
Mr. Lindsay. I have a recollection of that.
Mr. Mica. She did tell you. When you conveyed your
information to Mr. Ruff, did you tell him that there was just a
technical problem, or did you tell him that there was also
information relating to this matter or any other matter under
investigation being disclosed that it was uncovered and
discussed, being discussed?
Mr. Lindsay. I was not in the position to tell the counsel
to the President what matters were under investigation and
which ones were----
Mr. Mica. I'm not asking you that. What she told us
earlier, she told us earlier that Mr. Haas is out in the hall
and there were people out in the halls discussing some of this,
and Mr. Haas was like a little--I think she used an analogy of
a child getting a Christmas present. He found information and
there were things being disclosed.
Now, you told me you were primarily technical and
administrative and she was telling you that the system was
broken, there was something wrong.
Mr. Lindsay. Not technical. I wasn't a--I'm not a technical
person.
Mr. Mica. She told you that there was something wrong,
right?
Mr. Lindsay. Correct, sir.
Mr. Mica. OK. And she also told you that they were talking
about some of the information they found?
Mr. Lindsay. That is correct, sir.
Mr. Mica. OK. And I asked you: did you tell Mr. Ruff there
was a technical problem, or did you convey some of the
information that she gave you on up?
Mr. Lindsay. I know that I conveyed to Ruff that there was
a technical problem.
Mr. Mica. And beyond that tell me, because I'll ask Mr.
Ruff this question under oath. You told him some of the other
information, too?
Mr. Lindsay. I may have or may not have. I don't have a
recollection.
Mr. Mica. You don't recall?
Mr. Lindsay. I don't recall.
Mr. Mica. OK. And you don't recall--let me get to Mrs.
Callahan a second here.
Tell me how you conveyed to those folks--you said you
advised employees of the need to maintain confidentiality. I
could go back and get the exact record. Was that what you did?
Mrs. Callahan. Sir, I advised them that they needed to
focus on the technical problem, because there was----
Mr. Mica. Did you say anything about confidentiality?
Mrs. Callahan. I told them we had a sensitive situation and
we needed to work on figuring out the problem and that we
shouldn't be just----
Mr. Mica. But three of them thought they were threatened or
that you mentioned going to jail, in some degrees. All of them
who testified said that they were told not to tell their
spouses or talk about it outside.
Tell me how--tell the committee what you told those people.
Mrs. Callahan. OK. To the best of my recollection and
understanding, I told them that there had been some discussion
going on in the hallways--again, the fact that Mr. Haas had
raised the issue about e-mail dealing with Monica Lewinsky and
Ashley Raines was unusual, because we had not asked for that
information at this point in time.
Being that there was some information being discussed in
the hallways very loosely, knowing the situation that was going
on, we obviously were not putting our attention on the
technical issues to figure out what the problem was.
So, with that understanding, I advised them that they
needed to focus on the technical issues----
Mr. Mica. That they shouldn't even tell their spouses about
this?
Mrs. Callahan. Well, I told them if anyone had any
questions, refer them to myself or Mr. Lindsay.
Mr. Mica. The thing about their spouses, they're all five
of them not telling us--telling us that that--they all heard
part of this. You don't recall that?
Mrs. Callahan. I don't recall addressing their spouses,
sir.
Mr. Mica. You recall the conversation, though, passing on
the information about Mr. Haas to Mr. Lindsay, what was going
on in the hallways?
Mrs. Callahan. Yes, sir.
Mr. Mica. Do you remember getting Mr. Lindsay on the
telephone to reiterate what you had said as far as your need to
maintain confidentiality? Did that occur or did that not occur?
Mrs. Callahan. No, sir. I do recall getting Mr. Lindsay on
the phone and he was----
Mr. Mica. Mr. Lindsay, you don't recall that conversation
at all?
Mr. Lindsay. No, I don't. It very well might have happened,
if Laura said----
Mr. Mica. They all remember the conversation, and they
remember it as a reinforcement to the warning they'd had from
you about confidentiality. Why did you institute that need to
bring Mr. Lindsay into this?
Mrs. Callahan. Well, sir, first of all, it was brought to
my attention by Betty Lambuth that she was having difficulty
with her own employee being able to focus on the effort because
he was in the hallway talking about it.
Mr. Mica. And you had told him about this, and he knew that
there were people talking about what they'd found, and then you
got him on the phone to help keep them quiet; is that correct?
Mrs. Callahan. I got Mr. Lindsay--Mr. Lindsay actually
wanted to be on the phone call to reiterate the standard
practice and focus on the technical issues.
Mr. Mica. Oh, so he volunteered to you to be on the phone
after you told him what was going on?
Mrs. Callahan. Yes, the----
Mr. Mica. You didn't ask him?
Mrs. Callahan. No, sir.
Mr. Mica. You don't--do you recall, Mr. Lindsay, asking to
be on the phone so you could tell----
Mr. Lindsay. My previous testimony is I didn't remember the
conversation.
Mr. Mica. They all--everyone testified today that they were
told to keep a lid on this, and they remembered the
conversation with you very well. And now she's telling us that
you asked for that conversation. But you don't recall that
conversation?
Mr. Lindsay. I may have asked for that conversation. I have
no recollection of asking for the conversation. And if I did, I
don't--you have to understand, sir, I didn't know these people,
particularly at this particular time. The concept of me
discussing with these people or making threats to people----
Mr. Mica. You've already told us you were only interested--
--
Mr. Lindsay [continuing]. Who I did not know----
Mr. Mica [continuing]. In getting the technical things
correction, but now we find out that, in fact, you knew--and we
heard this Mrs. Callahan tell us today that they had--that they
were talking about information relating to--did you say Raines
and Monica? What did you say? Who did you say?
Mrs. Callahan. The two individuals were Monica Lewinsky and
Ashley Raines.
Mr. Mica. OK.
Mrs. Callahan. That was brought to my attention by Betty
Lambuth.
Mr. Mica. And you don't remember how specific you were with
conveying this information to those above you, like Mr. Ruff;
is that right, Mr. Lindsay?
Mr. Lindsay. I remember being very specific about the
technical problem and the fact that incoming e-mail was
probably not being ARMS managed. I remember being very specific
about that.
The record shows that that was the emphasis of any
conversation I may have had.
Mr. Mica. Mrs. Callahan, it appears this morning they
testified that there may be tens of thousands of e-mails that
we've never seen. Is that a good estimate?
Mrs. Callahan. I don't know, sir. I did not see that
quantity.
Mr. Mica. You did not? The system was broken. It wasn't
fixed. We weren't able to retrieve that information.
It also sounds like Ms. Lambuth was removed from her
position, and she claims that there was a slow-down and
basically a trying--an effort to try to stop all of this. Did
you see any of that?
Mrs. Callahan. I was only involved in the very, very
beginning for a short period of time. I didn't see that during
my brief involvement, and I cannot say what happened after I
was off the project.
Mr. Mica. Do I still have time, Mr. Chairman?
Mr. Burton. You have 25 seconds.
Mr. Mica. So it appears, Mrs. Callahan, that you were
concerned about more than just the technical problem; you were
concerned about leaks of information, people talking in the
hall and people conversing about what they had found; is that
correct?
Mrs. Callahan. No, sir. I was concerned about them putting
their time and effort and energy into fixing the problem and
not talking about what if and would have, could have, should
have type discussions in the hallway, and that's why I----
Mr. Mica. But you did mention both the technical problem
and the leaks to Mr. Lindsay; is that correct?
Mrs. Callahan. I advised Mr. Lindsay of the technical
problem and the two names that were involved in what Mr. Haas
disclosed to Ms. Lambuth.
Mr. Mica. Thank you, Mr. Chairman.
Mr. Burton. Mr. LaTourette, it is nice to have you back.
Mr. LaTourette. Thank you, Mr. Chairman.
I want to apologize to the panel. I was up doing something
else and I didn't hear your testimony, but I have had the
chance to review it with my staff.
I want to begin by saying something nice about you, Mr.
Lindsay, and disclose to my colleagues that Mr. Lindsay this
week called me and offered to come into my office and did come
into my office and spent an hour with me and answered any
question that I might have, and I appreciate that, and I think
that that occurred as a result of his former association with
Congressman Louis Stokes, for whom I have the greatest
admiration and was proud to serve with Congressman Stokes
before his retirement.
That being said--and so I thank you for that courtesy, but,
that being said, when I practiced law, we used to have an
expression that you could have five people see the same
accident and nobody would remember it exactly the same, but,
likewise, you would be hard-pressed to find somebody that said
that there wasn't an accident. You know, someone may say the
car was blue and one may say--you know.
And I did sit through the first panel, and I have to tell
you that we had that kind of situation with the first panel,
where everybody's recollection might have been slightly
different, but everybody saw an accident.
And if we go in degrees of things, Ms. Lambuth was pretty
strident in her observations and her recollections, Mr. Haas
even made the comment--and I think when Mr. Waxman was
questioning him--he said in your presence--and congratulations
on your marriage. I understand you married a Secret Service
agent, and I congratulate you on that, because I would have
called you Ms. Crabtree if I hadn't known that--but that he was
flippant, and that's how this ``there's a jail cell with your
name on it'' thing came about. He sort of made a joke about it.
And so it wasn't just, you know, people coming in hammering,
saying, ``jail cell, jail cell,'' we felt threatened.
And then Ms. Golas, I mean, she didn't look like a trouble-
maker to me, so I hope you realize--and I'm not going to beat
this drum again, but the testimony that you present, the two of
you, is in stark and direct contrast with five or six people
that we had in here earlier, and it is troubling to me, and I
know, from the questions you've received from my colleagues, it
is at least troubling to them. So I'm not going to focus on
that.
I do want to talk about a couple of things that came up in
our conversation, Mr. Lindsay, and maybe you can sort of
expound on them and tell us what it is that you think.
My understanding is that you still have not entered into a
contract to reconstruct the data from the mail server two.
You're taking bids on that now; is that right?
Mr. Lindsay. That's correct, sir.
Mr. LaTourette. And, again--and I made notes, but you can
correct me if I'm wrong--that one estimate that you received
was that this would cost between $2 and $3 million and it would
take about 211 days to fix, do the reconstruction of these e-
mails that we still have--nobody has seen.
Mr. Lindsay. That's correct, sir.
Mr. LaTourette. OK. And I think I mentioned to you at the
time that the suspicious among us--and there are some
suspicious people in Congress. I try not to be one, but I get
more suspicious as time goes by----
Mr. Lindsay. Yes, sir.
Mr. LaTourette [continuing]. That if I pulled out a
calendar and added up 211 days, 211 days from letting a
contract would coincide rather nicely with the election wherein
we elect either Vice President Gore or Governor Bush to be the
next President of the United States.
Are you troubled by that at all? In other words, 2\1/2\
years has gone by, and now you may be entering into a contract
that's going to take us past the election, so these things will
remain sealed more?
Mr. Lindsay. Yes, sir. I would like to have those e-mails.
If I could have the e-mails reconstructed within a shorter
period of time--and take my word for it, that those estimates
that we have are not the end of the story. We are continuing
and will continue the try and find something that can put
this--resolve this issue quicker. And I believe that there
are--I've certainly gone back, and, after our conversation, I
went back and talked to our folks and said, ``Isn't there any
way we can do any better?'' And I think our folks are going to
apply their best analysis or best methodologies trying to find
somebody who can do this work faster, because I think that's
the quickest way to get this issue resolved.
Mr. LaTourette. I hope so. And I think that also--I want to
talk about the decision to not reconstruct this Mail2 server.
You know, the other panel said you stopped the bleeding and no
longer are e-mails coming into the White House not captured on
the ARMS system, but we still have this body of stuff while
there was a problem.
Mr. Lindsay. Yes, sir.
Mr. LaTourette. And, obviously, somebody made a decision to
not reconstruct this Mail2 server. And, again, relying on my
memory of our conversation, you indicated that you attended a
Cabinet meeting where in the President and the Vice President
were there, and there was a discussion about Y2K compliance.
And, if I remember your exact words to me, is the Vice
President very clearly said that the White House is not going
to be the poster child for Y2K noncompliance. Do you remember
that meeting and indicating that to me?
Mr. Lindsay. That actually was information that was
provided to me by the assistant to the President for management
and administration in a Cabinet meeting, I believe, that she
attended.
Mr. LaTourette. OK.
Mr. Lindsay. And that the importance of making sure and her
looking to me to make sure that we weren't the ones that failed
in our Y2K effort.
Mr. LaTourette. Gotcha.
Mr. Lindsay. Correct, sir.
Mr. LaTourette. And so, as a result--and, again, if you've
been asked this already, a decision was made to concentrate on
Y2K and things like reconstructing the Mail2 server were--sort
of fell by the wayside; is that right?
Mr. Lindsay. That, amongst many, many other projects.
Mr. LaTourette. But was that decision yours in your
position at the OA? Did you make the decision to not
reconstruct the Mail2 server until you became Y2K compliant and
these other things were taken care of?
Mr. Lindsay. In November 1998, I was the chief of staff and
general counsel. I wasn't the director and I wasn't the
assistant to the President for management and administration at
that time, so I couldn't make that decision unilaterally.
Mr. LaTourette. Did you discuss the fact that you had five
or six projects out there pending, and one of them was the
reconstruction of the Mail2 server----
Mr. Lindsay. Yes.
Mr. LaTourette [continuing]. With a superior?
Mr. Lindsay. Absolutely. And I will say this: that it was
my recommendation, based on the technical review that my staff
provided to me, that the mission-critical systems for which our
e-mail system was one was our No. 1 priority for Y2K
reconstruction, so that certainly was something I conveyed to
the director of the Office of Administration and to the
assistant to the President for management and administration,
so that was my recommendation.
Mr. LaTourette. Who was the director?
Mr. Lindsay. Ada Posey.
Mr. LaTourette. OK. And there was an acquiescence by Ms.
Posey that the reconstruction of this server could wait until
you did other things?
Mr. Lindsay. I don't remember it being necessarily an
acquiescence. I think that there--and I don't remember--keep in
mind, it wasn't a discussion about this particular matter. It
was a discussion about a whole list of mission-critical
projects, which we were--we had to provide to Congress and to
other people as to what our priorities were, and in our budget
discussions. So it was a matter of looking at this stack of
information, and then the other stack of information, and
placing the priority on the mission-critical systems and those
mission support systems which were more critical than others.
Mr. LaTourette. Gotcha. Now, the fact that this body of e-
mails is not loaded into the ARMS system makes the Executive
Office of the President non-compliant with certain Federal
rules and regulations and laws, does it not?
Mr. Lindsay. Not to my knowledge.
Mr. LaTourette. Well, isn't it required by the Federal
Records Act that these documents be loaded into a retrievable--
electronically automatic retrievable system?
Mr. Lindsay. It was--our analysis at the time is that the
fact that we maintained the records, as a matter of fact, on
the desktops where they were on the server, and the fact that
we maintained the information on backup tapes meant that we
were preserving the information in compliance with the Federal
Records Act.
Mr. LaTourette. OK. But the fact of the matter is that,
although, if I understood Mr. Barry when he was here before,
although on the hard drives--for instance, take this Lewinsky
e-mail that began some of this nonsense--that there was a
couple responses, you know, with whoever her friend was,
Raines, or whoever the friend was, that you could see one side
of a conversation----
Mr. Lindsay. Yes.
Mr. LaTourette [continuing]. But you couldn't see Lewinsky
writing into the White House, if I understood that right. So
you couldn't reconstruct this information just by looking at
the hard drive, because the stuff that wasn't being captured
wasn't on the hard drives, because he would have--that's where
he would have been looking, is it not?
Mr. Lindsay. Well, what that information meant was that it
was ARMS managed, so the information wasn't on the ARMS system.
That does not mean that those e-mails were not on people's
computer systems.
Mr. LaTourette. OK. Well, let me--I want to shift gears,
because 10 minutes goes awfully quickly on this thing----
Mr. Lindsay. Yes, sir.
Mr. LaTourette [continuing]. And I want to talk about the
Office of the Vice President.
Mr. Lindsay. Yes, sir.
Mr. LaTourette. We've been talking about this particular
problem and the fact that incoming e-mails weren't captured on
this Mail2 server. Are you aware today in your position that
the Office of the Vice President continues to have a similar
problem?
Mr. Lindsay. I am aware of the fact that there are
problems, but this is something that I've just most recently
been apprised of.
Mr. LaTourette. But, specifically, let me just read you
what I think is going on, and you can tell me whether you know
about it or not.
Mr. Lindsay. Yes, sir.
Mr. LaTourette. And that is that the Office of the Vice
President set up their own system when they, I assume, took
office, or whatever, or maybe the Vice President invented his
own system, based upon--I don't know.
Mr. Lindsay. I don't know.
Mr. LaTourette. But, anyway, that there was no capturing of
e-mails into the Office of the Vice President under the system
that they--in an ARMS system under the program that the Office
of the Vice President established. Do you know that to be so?
Mr. Lindsay. I have been told that there are some e-mails
from the Vice President's office which have not been captured
by ARMS.
Mr. LaTourette. And, specifically, in 1997, they went onto
this Lotus Notes program that we have been talking about all
day, but still the program--the e-mail accounts that existed
before 1997, principally the Vice President's account and 27
other accounts, the ARMS system is still not capturing e-mails
from outside the White House into the Office of the Vice
President. Do you know that to be so?
Mr. Lindsay. I do not know that to be so. It may be true,
but I just don't know. I don't have any knowledge.
Mr. LaTourette. Is that something that your office would
have responsibility and Mrs. Callahan would have responsibility
and then looking into overseeing and correcting, as you did
with the Mail2 server problem?
Mr. Lindsay. Absolutely. I felt a little bit handicapped
because of this ongoing investigation. I have been very, very
careful about my communications with our technical staff to
make sure that there was no even appearance of impropriety in
terms of me making any inappropriate communications with them.
So, frankly, I have not been the one looking into this matter
and have not questioned our technical staff on the details of
this matter.
Mrs. Callahan. Mr. LaTourette, if I may please?
Mr. LaTourette. Sure.
Mrs. Callahan. Just to clarify, sir, since you weren't here
earlier, I left the Executive Office of the President back in
October 1998, so I am no longer there or have any ability to
offer anything in that regard.
Mr. LaTourette. I thank you. And, if I could just ask one
more question--and then I promise I'll be quiet--I just--this
problem with the Office of the Vice President looks exactly
like the problem with the Mail2 server, and I would hope that
the OA, the EOP, or whoever is going to take care of this--I
happen to have a different conclusion, and I think that the
Federal Records Act and Armstrong v. the EOP require the
maintenance of these systems.
Mr. Lindsay. Understood, sir.
Mr. LaTourette. And I would hope that you'd fix it so that,
you know, if these things are smoking pistols, well, let the
evidence be out, and if they're not, then there's nothing
there, and we want that to be out. But to have this cloud
hanging over this thing on this body of 100,000, a million e-
mails at a time when this Congress is very interested in what
is going on in the Executive Office of the President I think
doesn't do the American people a service and I think it is a
slap in the face of the Congress, so I hope you do your best.
Mr. Lindsay. Absolutely, sir. Thank you.
Mr. Burton. Thank you, Mr. LaTourette.
Mr. Haas said during his testimony, when we asked him--in
fact, I asked this question: does any e-mail actually reside on
the PCs of the White House users, or does it all actually
reside on the servers,'' and he said 98 percent is on the
servers.
Mr. Lindsay. Yes, sir.
Mr. Burton. Well, I think the point that you were trying to
make is that all of this was on the hard drives of the----
Mr. Lindsay. No, sir. That's not correct.
Mr. Burton. It was on the servers. That's where it was.
Mr. Lindsay. Right. But when I go to my office right now
and look at e-mail--and I have the very first e-mail that I
received when I came here and started working for the White
House, for Office of Administration--I can go on my computer.
Though I've had several computers change place, it all resides
on the server. The server is different than the ARMS records
management system, as it has been explained to me.
Mr. Burton. I understand. But it was--I thought I
understood you to say that this was on the personal computers
of the individuals.
Mr. Lindsay. No. That's not what I was saying.
Mr. Burton. You didn't say that? Fine.
Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
I understand that I think both of you have talked about--
and I don't want to attribute this quote to both of you, but I
think one of you used the quote, trying to find out the scope
and breadth of the problem.
It must bother you tremendously that, not only have you all
discovered the scope--not discovered the scope and breadth of
the problem, but you all haven't fixed it. Don't you find that
particularly frustrating, Mr. Lindsay?
Mr. Lindsay. Absolutely.
Mr. Barr. You're in charge of this office, aren't you?
Mr. Lindsay. Absolutely. I mean, I wasn't at that
particular time, but at one point I was.
Mr. Barr. We find that frustrating. You have tremendous
credentials, and you spent a great deal of time telling us
about them. You're in charge of this office. Here we are 2
years later, and the problem hasn't been solved. What are you
doing? Why can't you get a handle on this?
And I really don't think it is just a matter of money.
Mr. Lindsay. No, it isn't a matter of money.
Mr. Barr. And it is a matter of law, also, is it not? I
mean, you all have a legal obligation to get to the bottom of
this, don't you?
Mr. Lindsay. I don't know about that. I have a personal
obligation or feel very strongly, and I agree with you that I
would have preferred that this were resolved sooner. I would
like it to be resolved as quickly as possible. But if--to put
it into context, if we had had systems failures as a result of
Y2K and we hadn't done our work on that because we were doing a
reconstruction, then it would have been a much more serious
problem.
Mr. Barr. There you go again. You blame it on Y2K, you
blamed it on too many burdens being placed on you all from all
these congressional hearings and committees. You blamed it on
major infrastructure problems. I mean, I really think you do
yourself a disservice by coming up here and, you know, blaming
this.
You all had--there is a serious problem here that has been
known to your office for over 2 years, a serious problem that
at least some of us on this committee believes is a legal
problem, as well, very possibly a criminal problem, and nothing
has been done on it.
Mr. Lindsay. Well, let me--I beg to differ. One of the
things that happened--I think it is very, very important to
note that in October 1998 I received a proposal for $600,000
from Northrop Grumman to assess the nature of this problem and
how we were to work to resolve it. I am very happy to report
that today the work that work would have completed has been
completed by Government career staff who work in the Office of
Administration and have done that work so that we can go to bid
and contract.
The first step in resolving the problem was to fix the
glitch in the first instance. Without that, at least as I was
informed by my technical staff, you could not do
reconstruction.
Then, the next step in the process was to identify what----
Mr. Barr. The information is there. The e-mails are there
somewhere, aren't they?
Mr. Lindsay. I really would not be able to go into great
detail as to the technical elements of how it works. I can
report to you----
Mr. Barr. But that's your job.
Mr. Lindsay [continuing]. What trusted technical staff has
reported to me.
Mr. Barr. This is your office.
Mr. Lindsay. That is correct.
Mr. Barr. I mean, aren't they--I mean, the others
testified. I mean, you can retrieve these things. They are
there. You're saying it is a matter of money to get them. But
there was one instance that I think Mr. Haas testified to that
a whole group of documents were presented to you. I mean, where
are those documents?
Mr. Lindsay. They were presented to counsel's office. But
let me reinforce----
Mr. Barr. No, no. No. Don't just--please, don't just--you
talk very fast.
Mr. Lindsay. Sure.
Mr. Barr. Slow down just a second, please.
Mr. Lindsay. Certainly.
Mr. Barr. The testimony earlier was that they were
presented to you, not to the counsel's office, to you.
Mr. Lindsay. They were presented to me, and then I
transmitted them to the counsel's office.
Mr. Barr. Where are they?
Mr. Lindsay. I couldn't tell you.
Mr. Barr. Well, now, see, this is another problem. These
documents are presented to you. You know very well--you are
trained in the law and certainly you know what is going on in
the world around you, certainly at the time in 1998, also.
Mr. Lindsay. Yes, sir.
Mr. Barr. These are very sensitive documents. They are very
relevant to the Office of Independent Counsel investigation,
perhaps, perhaps very relevant to an impeachment proceeding,
perhaps very relevant to Chairman Burton and our work on this
committee.
Mr. Lindsay. Yes, sir.
Mr. Barr. They come in to you. You don't know whether--did
you look at them?
Mr. Lindsay. No, I did not look at them. I conveyed them--
--
Mr. Barr. Did you give them to Mr. Ruff?
Mr. Lindsay. I don't remember--I remember taking it over to
the West Wing to the counsel's office. I can't remember if I
gave it specifically to him, but they were certainly
transmitted.
Mr. Barr. You know who Mr. Ruff is?
Mr. Lindsay. Absolutely, sir.
Mr. Barr. OK. And you don't recall whether you gave them to
Mr. Ruff?
Mr. Lindsay. I remember taking them to the counsel's
office, myself.
Mr. Barr. Do you ever make notes?
Mr. Lindsay. What's that?
Mr. Barr. If you remember taking them over to the White
House counsel's office, yourself, I don't believe that you
don't know who you gave them to.
Mr. Lindsay. I can't help that. All I can testify, sir----
Mr. Barr. You just walked over and----
Mr. Lindsay [continuing]. Is to those matters for which I
have personal knowledge.
Mr. Barr. Sensitive documents.
Mr. Lindsay. Yes.
Mr. Barr. Very important documents.
Mr. Lindsay. And I believe that transmitting----
Mr. Barr. You took them over there and you don't remember
who you gave them to?
Mr. Lindsay [continuing]. Transmitting those sensitive
documents to the counsel's office of people whom I have the--a
very significant degree of respect and admiration for is
certainly an appropriate step.
Mr. Barr. And I'm sure it is very mutual. But the fact of
the matter is, I don't think that somebody trained, as you have
told us you are and as you undoubtedly are, in the law in how
to deal with sensitive documents would just take them over
there and say, ``Hey, I trust everybody in this office, so here
they are, guys,'' and just walk away. I think you know exactly
who you gave them to. All I'm asking is who did you give those
documents to?
Mr. Lindsay. I can't testify to facts which are not in my
recollection, sir.
Mr. Barr. You cannot testify to facts that are not within
your recollection. I think that's a new one.
Did you have any other discussions about any of this with
Mr. Ruff, the White House counsel?
Mr. Lindsay. I don't have--I had conversations with the
counsel on various topics at various times. This topic I'm
certain was one of them. I don't have any specific recollection
of other conversations with the counsel's office about other
details of this particular matter, particularly after the
transmittal of those particular documents, other than----
Mr. Barr. What did you do, just put it out of your mind?
You've told us that this is something very important.
Mr. Lindsay. Absolutely. But there are two issues, sir.
Mr. Barr. Absolutely what? You put it out of your mind or
that it is really very important?
Mr. Lindsay. It is important, but it is important for two
reasons. The first reason is that your committee was due
information, and I recognize that and respect that, but the
determination as----
Mr. Barr. Probably the Office of Independent Counsel was,
at well.
Mr. Lindsay. And the Office of Independent Counsel, and
when the----
Mr. Barr. And the Judiciary Committees, as well.
Mr. Lindsay. Absolutely, sir. Absolutely.
Mr. Barr. But none of them got these documents.
Mr. Lindsay. I would not know, sir.
Mr. Barr. You would not know. Did you give them to them?
Mr. Lindsay. No, I did not.
Mr. Barr. Right. There is a memo here dated June 9, 1998,
that has been the subject of some discussion today, for John
Podesta from Virginia Apuzzo.
Mr. Lindsay. I think it was the 19th, sir.
Mr. Barr. Pardon?
Mr. Lindsay. I think it was the 19th.
Mr. Barr. Yes, June 19, 1998, exhibit WH-3 and 4.
Mr. Lindsay. Yes, sir.
Mr. Barr. Did you get a copy of that?
Mr. Lindsay. I reviewed it before it was transmitted to Ms.
Apuzzo.
Mr. Barr. All right. But it doesn't show on here that it
went through you? You just reviewed it?
Mr. Lindsay. No, it does not.
Mr. Barr. OK. Did you get a copy of it after the fact?
Mr. Lindsay. I don't have a recollection of getting a copy
of it after the fact. No. I think I--my testimony earlier was
that, before this--before actually conducting a search, I had
forgotten about that memo. I didn't have a specific
recollection of it at all until we actually looked through the
files in the Office of Management and Administration to find
it.
Mr. Barr. You found one of those specific things you didn't
have a recollection of?
Mr. Lindsay. That is correct, sir.
Mr. Barr. That is possible.
Mr. Lindsay. Absolutely.
Mr. Barr. OK. This document--put up page 2, please--it ends
with the sentence, ``I will keep you informed of our
progress.'' Is that the end of the document? The rest was
blank. It doesn't even have a page number or anything. It
doesn't show CC's or anything.
Mr. Lindsay. I think the document speaks for itself.
Mr. Barr. No. I'm asking: is that the end of the document,
as you remember it? Was there anything else on there that----
Mr. Lindsay. It is the end of the document as I remember
it.
Mr. Barr. OK. So it would not be standard procedure for a
White House memo to have pagination, just to make sure that,
you know, all pages are with the document or that certain pages
belong to them?
Mr. Lindsay. I wouldn't be able to--sometimes I've seen it
and sometimes I haven't.
Mr. Barr. Really?
Mr. Lindsay. Yes, sir.
Mr. Barr. Now, there's another document here that we talked
about earlier today, White House 3, and one of your colleagues,
Mr. Huang, I think it was, had no idea what it was. Do you have
any idea what this is? These are talking points dated March 7,
2000.
Mr. Lindsay. No, it didn't strike a chord with me, sir.
Mr. Barr. Yes. Just looking at it, do you have any earthly
idea? I mean, have you ever seen a talking points document
before?
Mr. Lindsay. Have I ever seen a talking points document
before? Yes, sir.
Mr. Barr. OK. But this one rings no bell, whatsoever? You
have no idea who drafted this, what it was drafted for, or who
might have read it?
Mr. Lindsay. No, I don't, sir.
Mr. Barr. What conversations did you have with Mr. Podesta
about these matters?
Mr. Lindsay. I let him know about the information that was
contained in the memorandum, and that was the--he asked one
question as to whether or not----
Mr. Barr. That's the memorandum of June 19?
Mr. Lindsay. That's it, and that was the sum and substance
of all communications that I had with him about this particular
matter.
Mr. Burton. The gentleman's time has expired, but I'm
taking my final time. If the gentleman needs some of that, I'll
be happy to yield it to him.
Mr. Barr. I'd appreciate that.
Mr. Burton. I just have a couple of questions here.
Mr. Barr. Yes, sir.
Mr. Burton. Mr. Hawkins testified that he raised the issue
of threats with you, Mr. Lindsay. Did he?
Mr. Lindsay. No, he did not.
Mr. Burton. He said he did.
Mr. Lindsay. He certainly did not.
Mr. Burton. So that's another lie by those folks.
Did Mr. Hawkins----
Mr. Waxman. Whoa, whoa----
Mr. Burton. Now, wait a minute. Mr. Hawkins----
Mr. Waxman. Contradictions.
Mr. Burton. Mr. Hawkins said he did it, and if it's not
true, it's a lie.
Mr. Lindsay. That's not my recollection of his testimony,
but that may--if that's what the record shows.
Mr. Burton. OK. The question is: did Mr. Hawkins raise the
issue----
Mr. Lindsay. No, he did not.
Mr. Burton [continuing]. Of threats with you?
Mr. Lindsay. No, he did not.
Mr. Burton. OK. He did not. Did Mr. Hawkins ever discuss
threats against his employees with you?
Mr. Lindsay. No, he did not.
Mr. Burton. He did not.
Mrs. Callahan, did anyone ever raise the matter of threats
with you?
Mrs. Callahan. No, sir.
Mr. Burton. No one did with you. Did anyone ever discuss
with you or raise the issue of the efforts to solve the problem
not moving fast enough?
Mrs. Callahan. No, sir. Again, I was only involved for a
short period of time, so I don't know what happened after I
left the project.
Mr. Burton. Mr. Lindsay, did anyone ever discuss with you
or raise the issue of the efforts to solve the problem not
moving fast enough?
Mr. Lindsay. Excuse me, sir?
Mr. Burton. I said did anyone ever discuss with you or
raise the issue of the efforts to solve the problem not moving
fast enough?
Mr. Lindsay. I certainly discussed it, and I certainly
raised that issue with individuals.
Mr. Burton. Did anyone raise it with you?
Mr. Lindsay. I don't have a recollection of people raising
that to me. I have a recollection of me raising it and wanting
to have things done faster.
Mr. Burton. Who raised it with you? You don't recall
anybody raising it with you about the process not moving--about
maybe them being frustrated with it?
Mr. Lindsay. No.
Mr. Burton. But nobody, to your recollection, raised the
issue of the whole process not moving fast enough and you being
frustrated about not moving fast enough?
Mr. Lindsay. Not that I recollect. I was frustrated enough,
sir.
Mr. Burton. The documents that you took to the counsel's
office that Mr. Barr referred to talked about Ms. Lewinsky.
Now, the search was not a complete search of information asked
for by the independent counsel, was it? It was just a partial
search?
Mr. Lindsay. I wouldn't be able to answer that question,
sir.
Mr. Burton. Well, it only referred to two people that Ms.
Lewinsky may have sent e-mails to.
Mr. Lindsay. I would have to refresh my recollection as to
what the independent counsel's request was.
Mr. Burton. Well, when you found out there was information,
you know, and you took it to the counsel's office, you had to
know that that was only partial, didn't you? Did you think that
was all the e-mails that Ms. Lewinsky sent into the White
House?
Mr. Lindsay. I had no idea, sir.
Mr. Burton. Well, did you ever go back and ask for a
complete search of Ms. Lewinsky's e-mails?
Mr. Lindsay. I would not ask for a search of any employee
or former employee's e-mails, particularly someone who had
worked for the White House office, without consultation with
the counsel's office.
Mr. Burton. But the independent counsel had asked for any
information relevant to that. We had asked for information on a
whole host of issues and had subpoenaed them. The independent
counsel had subpoenaed that information.
Mr. Lindsay. As I said, sir, I would not have conducted an
on-my-own search of records of that nature without consultation
with the counsel's office.
Mr. Burton. Well, did you or anyone to your knowledge ever
tell the independent counsel that that was only a partial
search of the Lewinsky e-mails?
Mr. Lindsay. I didn't, and I have--I wouldn't have
knowledge of any communications. I'm not aware of any
communication between the White House counsel's office and the
independent counsel, not a single one.
Mr. Barr. Mr. Chairman, can I take a moment of your time?
Mr. Burton. Yes. I'll yield to the gentleman.
Mr. Barr. Now, wait a minute. You knew it was just a
partial search. I mean, there were outstanding subpoenas from
both the Office of Independent Counsel and this committee--and
I don't know if there were at that particular time by the
Judiciary Committee. You knew that that was--by virtue of the
information brought to your attention in this memo----
Mr. Lindsay. Yes, sir.
Mr. Barr [continuing]. And in your other conversations----
Mr. Lindsay. Yes, sir.
Mr. Barr [continuing]. Quite aside from threats and so
forth. Let's put that aside.
Mr. Lindsay. Yes, sir.
Mr. Barr. You knew that there was a serious problem and you
knew that there was a high likelihood that information that was
under subpoena by the independent counsel and by at least one
committee of the Congress was very likely incomplete.
Mr. Lindsay. I did not know that, sir.
Mr. Barr. Yes you--you couldn't have helped but have known
it because of the nature of this specific problem brought to
your attention because of these gaps----
Mr. Lindsay. Sir, my----
Mr. Barr [continuing]. In this system because of the Mail2
problems.
Mr. Lindsay. My staff has been unable to this day to tell
me the exact number of e-mails that weren't included.
Mr. Barr. You don't have to know----
Mr. Lindsay. They have been unable to----
Mr. Barr [continuing]. The exact number of e-mails
included. There you go again. See? Talking about, you know,
something very precise. We're asking a general concern here and
a general matter related to a very specific problem.
Mr. Lindsay. Yes, sir.
Mr. Barr. OK? Now, there was testimony earlier today that
Mr. Barry was able to go back, after it became apparent to
him--and he isn't even at near your level. He doesn't have all
of these degrees and so forth, I don't think, that you told us
about. He was able to pinpoint just one that came to his
attention, and he was able to direct the people to go back and
they uncovered it. They found it because he knew that there was
something incomplete in a record.
Mr. Lindsay. The counsel's office----
Mr. Barr. Or in a series of records.
Mr. Lindsay. The counsel's office----
Mr. Barr. Later, Mr. Haas testified and you've testified
that a whole group of documents were brought to your attention
that you'd now have us believe you said, ``See no evil, hear no
evil, speak no evil,'' you just closed your eyes to it, dropped
it off somewhere over at the White House.
Mr. Lindsay. No. I didn't drop it off at----
Mr. Barr. You knew that----
Mr. Lindsay. Sir, I did not drop it off somewhere. I
dropped it off within the counsel's office of the President of
the United States. That's not just ``somewhere.''
Mr. Barr. And you had--and you would have us believe that
you have no specific recollection of who?
Mr. Lindsay. I don't.
Mr. Barr. Well, I know you've told us that. But you had to
have known. There is no way that you could not have known that
these records that were under subpoena--this was not some
secret investigation--that they were not complete because of
this specific problem, and you took no steps to uncover that. I
think you had the duty, as an officer of the court, quite aside
from the laws that I think apply here, to do that.
Mr. Lindsay. I believe that I----
Mr. Barr. I suspect maybe that's why you're frustrated.
Mr. Lindsay [continuing]. Fulfilled my obligations under my
oath and as an officer of the court to convey the information
and the nature of the problem to the counsel's office. The
review of those documents to review them for responsiveness and
to review them for privilege and other things that lawyers
routinely do with the production of documents was the
responsibility of the counsel's office of the President of the
United States.
Mr. Barr. If you were----
Mr. Lindsay. That responsibility.
Mr. Barr. If you were so frustrated, as you've told us--and
I think that's the word you just used with the chairman--
what's--tell us some of the specific steps you took to relieve
your frustration, because we have a whole sheath of documents
here expressing continued frustration by Mr. Barry, for
example--document after document after document saying
nothing----
Mr. Lindsay. I can give you specific instances----
Mr. Barr [continuing]. Is being done.
Mr. Lindsay. I can give you specific instances of how I
expressed my frustration. I had a contractor that wanted
additional resources who believed that the very issue that
you're talking about was outside of the scope of the contract.
The very definition of that issue, the way that they were doing
it, meant delay, sir.
Mr. Barr. Mr. Barry--again, I go back to this, because
there are people far less qualified than you--Mr. Barry----
Mr. Lindsay. Mr. Barry is very qualified.
Mr. Barr. Mr. Barry discovered that there was--in just one
series of e-mails that there were gaps. He was able to check
that out and get an answer to it very quickly. Mr. Haas, it
took him a little bit more time, because he was requested
pursuant to a chain of command here, to gather more documents
than just the one particular missing e-mail that Mr. Barry was
looking for.
Mr. Lindsay. But, sir----
Mr. Barr. Mr. Haas was able to do so. You're sitting here
telling us today that you, as the head of this entire office--
--
Mr. Lindsay. At the time I was the general counsel.
Mr. Barr [continuing]. With tremendous background in this
haven't been able to do it?
Mr. Lindsay. What I am saying, sir, is that, as I recollect
Mr. Barry's testimony, it was that he discovered a gap in those
particular e-mails. But remember, sir, that information was
coming from the ARMS system, alone. That was not the only
source of documentary evidence that was provided to
investigative committees----
Mr. Barr. But at least you knew that.
Mr. Lindsay [continuing]. Or to other organizations.
Mr. Barr. What I'm saying is I'm just extrapolating. I'm
saying if he discovered that----
Mr. Lindsay. Yes, sir.
Mr. Barr [continuing]. In January 1998, just based on a
very quick review of a couple of e-mails, he noticed there was
a gap that didn't make any sense----
Mr. Lindsay. Yes, sir.
Mr. Barr [continuing]. He got onto it right away and
discovered the problem, alerted your office in January 1998----
Mr. Lindsay. He did not notify my office in January 1998.
Mr. Barr. Yes, he did notify your office. Now, I don't know
whether you're calling him a liar or not, but he testified that
he sent a memo--an incident report----
Mr. Lindsay. To his supervisor.
Mr. Barr [continuing]. To the office--to OA. What is OA?
Mr. Lindsay. The Office of Administration is----
Mr. Barr. OK. I'm saying that's----
Mr. Lindsay [continuing]. A Federal agency.
Mr. Barr [continuing]. Your office. Now, he didn't send it
to the Office of Administration in Alaska or somewhere, it was
your office.
Mr. Lindsay. Using that analogy----
Mr. Barr. Your office knew about this.
Mr. Lindsay [continuing]. Him having knowledge is
notification to the Office of Administration, because he is
part of the Office of Administration.
Mr. Barr. No. A piece of paper was sent and there was
followup done, and you all did nothing. That's our frustration.
And you haven't done anything today to relieve that.
Mr. Lindsay. That's not correct, sir.
Mr. Barr. You're getting inside my mind now? I'm telling
you you haven't.
Mr. Lindsay. What I'm saying is we did $600,000 worth of
work by Government--dedicated Government employees. I will not
discount the work that those people did during a period where
they were addressing the Y2K problem and other types of other
pressing issues. Those people did that work. They actually
completed it, and they did it at a cost that saved the
taxpayers----
Mr. Barr. You did it?
Mr. Lindsay [continuing]. That saved the taxpayers money.
Mr. Barr. You did not. This is your responsibility. You
have not done it.
Mr. Lindsay. That's correct, sir. I have not completed
the----
Mr. Barr. And you are here today----
Mr. Lindsay [continuing]. Reconstruction. That is correct.
Mr. Barr. You haven't done anything.
Mr. Lindsay. That is not correct, sir.
Mr. Burton. My time has expired.
Mr. Waxman, do you have a closing question or two?
Mr. Waxman. Yes, I do, Mr. Chairman.
I must say, people have different recollections of events,
and I have a lot of sympathy for the witnesses. They are being
asked to recollect and tell us about detailed activities. I
don't know, I guess this is 2 years ago; isn't that right?
Mr. Lindsay. Yes, sir.
Mr. Waxman. And I don't know if I could have recollection
of events 2 years ago, who said what to whom. I could have a
general idea. And when people have different testimony, it
doesn't mean that one person is lying and another person is
not. People just talk themselves into what they remember. It
doesn't mean it was true. They talk themselves into thinking
that must be what happened.
Now, that's a situation where we're talking about events of
many years ago.
Mr. Lindsay. Yes, sir.
Mr. Waxman. We've all been here for many hours, and Mr.
Burton made the statement that he understood Mr. Hawkins to
have said that he told you about threats, and you said that
wasn't the case. Is that your testimony?
Mr. Lindsay. That is exactly correct, sir.
Mr. Waxman. Now, the fact of the matter is I have been here
most of the day. I was certainly here for Mr. Hawkins'
testimony. And I don't recall that he said that. I believe Mr.
Burton believes what he said was true.
Mr. Burton. I'd be glad to give you the transcript.
Mr. Waxman. Well, I think the transcript will tell us, but
maybe we can do something even better. We have transcripts. We
have written transcripts of these proceedings, so everything is
taken down and people have a chance to change it, but it is all
taken down. What we're going to have, because of the chairman's
wisdom, is an Internet broadcast of our proceedings, gavel-to-
gavel. And during the proceedings we've had a tape made of some
of the testimony. So I would like to, with everybody's
indulgence--and I have the time to do it--show a tape, and I
think we could then see what Mr. Hawkins actually said a few
hours ago.
I can understand we can have different recollections of
what he said and be very sincere about those different
recollections, but the fact of the matter is that even being
sincere doesn't make it accurate.
So I wonder if we could show that videotape.
Well, that obviously isn't the right one. S&P futures were
going down, but we all know that the stock market went up
today. [Laughter.]
We are, obviously, operating in very fast timeframe, but if
the chairman will indulge me----
Mr. Burton. That's fine with me.
Mr. Waxman. I think it is coming right up.
Mr. Burton. Mr. Hawkins testified to me more than once
today. We asked him questions back and forth.
Mr. Barr. Mr. Chairman, if I can inquire, I think Mr.
Hawkins' testimony----
Mr. Waxman. Mr. Chairman, it is my time, and it is not up
to the gentleman to inquire at all----
Mr. Barr. I suspect you can stop the time.
Mr. Waxman. It's my time, and----
Mr. Burton. I will give you whatever time you need after
Mr. Waxman----
Mr. Waxman. If we could be quiet, we can hear the tape.
Silent movies. Do we have sound on this one?
Mr. Barr. Mr. Waxman is right, I did not hear the word
``threat.''
Mr. Waxman. Well, Mr. Chairman, I don't know what to say.
Maybe we've gotten too high-tech--maybe we can't even get a
tape recorder to work. You can understand why----
Mr. Lindsay. I'm sympathetic to your circumstances.
Mr. Waxman [continuing]. The White House can't get the
whole e-mail system to work to track all the e-mails.
I think when we do look at the record I think we're going
to see that Mr. Hawkins made a different statement than what
the chairman believed, but I think his belief is sincere. And I
may be wrong, and we'll see what the record was. If Mr. Hawkins
were here we could ask him.
But the point I'm really making is it is hard to remember
precisely what somebody said in a hearing 6 hours ago, let
alone 2 years ago. I still have some time, which is my time--
the way this committee was supposed to work is we have a half
hour--but now we have 10 minutes. We had a half hour and we
split it up, and now I've got 10 minutes. And I am, obviously,
trying to stall for some time so we can hear this tape.
Mr. Lindsay. Yes, sir.
Mr. Waxman. Because I think it is going to give us an
accurate portrayal.
Mr. Burton. You can mess with the tape. We'll come back
after the vote. OK?
Mr. Waxman. OK. Then we'll come back.
[Recess.]
Mr. Waxman. Mr. Chairman, I think we've handled our high-
tech glitch, and I'd like to have that tape rolled.
[Tape played.]
Mr. Waxman. They missed a question.
Well, as I understand, what the tape would have shown would
have been a question from Mr. LaTourette, who is a very good
questioner, and an answer by Mr. Hawkins indicating that he was
not told by Mr. Lindsay about the threats. But different people
can have different recollections.
Mr. Lindsay. Yes, sir.
Mr. Waxman. That's the point I'm making, as well as the
other point that's made is that even in this high-tech world
things can get screwed up, and it's clear that the White House
expenditure of--how much money was spent on that whole arms
system?
Mr. Lindsay. There was $14 million appropriated originally.
Mr. Waxman. Now, we spend millions and millions of dollars
to get a system that would retrieve every e-mail so that all
the e-mails could be available to all the independent counsels
and all the committees of Congress. The White House made an
effort, in hiring Northrop Grumman, to get that information on
that system, and then they found out that there was a glitch in
the system. There were contractors. There were subcontractors.
This morning we saw that the subcontractors and the contractors
were feuding with each other and had different stories to say
about the events.
And what bothers all of us is that when the White House
heard about this we weren't informed in a timely manner,
presumably because the White House was hoping it would be
fixed. I was hoping this video would have been fixed in time,
and then we would have had at least that snippet.
But the reality is that, even in this high-tech age, things
don't always work out the way they are supposed to, and human
beings' being what they are, hear different things at different
times. In fact, they say different things at different times,
as their recollection gets affected by other people's
statements.
So it is my understanding that, from that tape, we would
have heard Mr. Hawkins saying one thing. There may be other
times he said other things as to the threats. But there was one
statement made that Mrs. Callahan told these contractors not to
talk, perhaps with a threat of jail, but I think one of them
said that you had made those comments because Mr. Lindsay had
asked you to make those comments. You both would deny that or
do either of you remember saying anything along those lines?
Mr. Lindsay. I certainly didn't pass or ask that any
instruction be passed on to instruct anyone to intimidate any
other person. Absolutely not. And I'm not aware of anyone else
doing it, certainly.
Mr. Waxman. And, Mrs. Callahan, he didn't ask you to do it,
and you say you didn't do it?
Mrs. Callahan. Mr. Lindsay never asked me to threaten any
employees and I never personally threatened any employees.
Mr. Waxman. Thank you.
Thank you, Mr. Chairman.
Mr. Burton. The snippet that we just saw was just that, a
snippet, and my staff will go through the entire discussion to
make sure that we have it all, but I will read to you what was
said by Mr. Hawkins on March 12th--well, it wasn't March 12th,
but when we interviewed him, Mr. Hawkins, here's what he said.
``Hawkins went to speak to Lindsay and Crabtree and insisted
that all work be done within the bounds of the contract. When
Hawkins had this conversation, he did not know what work the
contract employees were doing, simply that it was outside the
bounds of the contract. At the meeting, Crabtree told Hawkins,
`Everything was fine before you stepped in.' When he confronted
Crabtree about her threatening his employees with jail, she did
not deny doing so, but rather turned and left the room without
a word. Lindsay further told Hawkins, `I hope you appreciate my
position.' To this, Hawkins responded--'' and pardon my
language. This is his language--``to this, Hawkins responded,
`I'm pissed. Dale Helms or Jim Wright didn't authorize the
work. Until Dale Helms authorizes the work, it's not going to
get done. I've instructed my employees accordingly, and I hope
you understand my position.' Lindsay replied, `Is that your
final position?' Hawkins says, `It is.' ''
So the issue was raised with Crabtree and Lindsay,
according to Mr. Hawkins, and I think we'll probably find that
on the tape, as well.
But let me just end up by saying this: I understand the
minority, as they always do, pooh-poohing things that we
discover in uncovering these investigations, and I understand
the rationale for their position, but let me just say this: the
e-mails were subpoenaed right along with everything else by the
independent counsel, by us, this committee, by a whole host of
people. They were not delivered. They were discovered in 1998.
In September 1996, this glitch started. That was right during
the time that possible campaign finance mis-steps were taken or
illegal activities took place. That was very relevant to the
campaign finance investigation for which we subpoenaed these
documents. We did not get them.
And you folks have a different view. You say things didn't
happen, when six other people sat there today and took issue
with you.
I think this is something that is going to have to be
looked into further. I don't believe all six of those people
are lying. I don't believe those five people felt intimidated
because nothing was said to them. I think something was said to
them, and I think it needs to be looked into further.
And the last thing is, we've waited 2 years for these
documents. Now we're finding out, under questioning from Mr.
LaTourette, that, even if a contract was signed today, it would
be 211 days--I believe that's right, isn't it, Mr. LaTourette--
211 or so days before we would get the information that we're
entitled to, and that would be after this administration leaves
office.
It sure sounds like somebody is blocking, and this is very
serious stuff, because if illegal campaign contributions were
solicited by people at the White House, if they were involved
in a cover-up of other investigations that have been going on,
then somebody needs to be held accountable and taken to task
and possibly even prosecuted.
And so for us not to get this information after 2 years is
just unthinkable, and for you not to even start the process is
unthinkable.
So I just say I'm frustrated. I think my colleagues are
frustrated.
Mr. Barr, did you have any closing comments?
Mr. Barr. Yes, if you'll yield----
Mr. Burton. I'll yield.
Mr. Barr [continuing]. For just a moment, Mr. Chairman.
Somebody a little bit earlier--maybe it was you, Mr.
Lindsay--mentioned the name Ada Posey. Did you mention that, or
did you, Mrs. Callahan?
Mr. Lindsay. At one point in my testimony I may have
mentioned her name.
Mr. Barr. Yes. Who is she?
Mr. Lindsay. She is the director of the Office of the
Administration.
Mr. Barr. Is she in the--was she an assistant to Hillary
Clinton?
Mr. Lindsay. No. Not to my knowledge.
Mr. Barr. Really? I thought that Ada Posey was. How long
has she been in the current position?
Mr. Lindsay. She no longer works for the Executive Office
of the President.
Mr. Barr. That's not the question. How long had she served
there in that office?
Mr. Lindsay. I believe for 5 or 6 years.
Mr. Barr. Until what time?
Mr. Lindsay. Until December 1998.
Mr. Barr. OK. Now, have either of you had any discussions
at all at any time with lawyers from Northrop Grumman?
Mr. Lindsay. Have I, personally?
Mr. Barr. Yes.
Mr. Lindsay. Ever?
Mr. Barr. Yes.
Mr. Lindsay. When we negotiated the contract for Northrop
Grumman to come on board, they brought in their counsel at the
signing ceremony. I remember meeting a counsel from--someone
from the general counsel's office from Northrop Grumman. It
must have been in early 1997.
Mr. Barr. That was the only contact you've had with lawyers
from Northrop Grumman?
Mr. Lindsay. I don't have any other specific recollection
of conversations with lawyers from Northrop Grumman.
Mr. Barr. Have you had any conversations with them about
any of these matters----
Mr. Lindsay. Me?
Mr. Barr [continuing]. Under discussion today?
Mr. Lindsay. No. Absolutely not.
Mr. Barr. At no time?
Mr. Lindsay. Not that I'm aware of.
Mr. Barr. Well, you would be aware of them, wouldn't you?
Mr. Lindsay. I would think so. No, I did not have any
conversations with anyone from Northrop Grumman.
Mr. Barr. Mrs. Callahan, have you?
Mrs. Callahan. No, sir.
Mr. Barr. OK. How about attorneys from the Department of
Justice?
Mr. Lindsay. At any time during my tenure?
Mr. Barr. Concerning any of these matters.
Mr. Lindsay. Yes.
Mr. Barr. When?
Mr. Lindsay. Shortly after the Mail2 glitch was discovered.
Please keep in mind, sir, we were involved in several pieces of
records litigation that were going on at that time, and we
regularly conferred with our appellate counsel and with
elements and individuals from the Justice Department on how
those matters were proceeding. We provided information to them.
They were our attorneys, and so we had regular communications
with them on matters dealing with records.
Mr. Barr. How about these matters, these records?
Mr. Lindsay. Yes. I had one conversation with an individual
in the--from the Justice Department about these matters shortly
thereafter they were discovered.
Mr. Barr. Which would be in when, because we have a
difference over when----
Mr. Lindsay. I think it was in June----
Mr. Barr [continuing]. It was discovered.
Mr. Lindsay [continuing]. 1998. I had a conversation with
someone from the Justice Department because my concern was--
they were experts in the Federal Records Act, and I wanted to
know and make sure that any--to see if there were any Federal
records issues that were associated with the particular anomaly
issue.
Mr. Barr. So this was just a matter over that? It didn't
concern the specific files that might have been lost or that
might need to be located?
Mr. Lindsay. No. I was the general counsel for the Office
of Administration. One of my responsibilities was to work with
them in pending litigation, and if there was information that
developed that was relevant to that pending litigation, it was
my responsibility to make sure that I let them know about it,
which is what I did.
Mr. Barr. But the Department of Justice and its lawyers did
not question you, or you didn't have discussions with them
about the specifics of what we're talking about here today?
They expressed no interest in what files might be missing, how
to retrieve them, why they're missing, and so forth?
Mr. Lindsay. In terms of what files, no. It was a question
of whether or not records that were not put into the ARMS
system, was that information--just providing them with the
information as to what happened so that they could make a
determination of any other action that needed to be taken. We
didn't talk about the subject matter. We talked about just the
facts associated with that matter, and it was a relatively
short conversation.
Mr. Barr. And who was that with?
Mr. Lindsay. I believe it was Jason Baron from the Justice
Department.
Mr. Barr. And that's the only conversation about these
matters, specifically, that you've had with the Department of
Justice?
Mr. Lindsay. That's the only one that I have a specific
recollection of.
Mr. Barr. Are there any that you don't have a specific
recollection of?
Mr. Lindsay. I don't know how I could----
Mr. Barr. I mean, I don't know how--I mean, everything you
say you have a caveat, a footnote to it.
Mr. Lindsay. Is that a question, sir?
Mr. Barr. No, it's a statement.
Mr. Lindsay. OK.
Mr. Barr. Mrs. Callahan----
Mrs. Callahan. Yes, sir?
Mr. Barr [continuing]. Have you had any contacts,
conversations of any sort with the Department of Justice or any
Department of Justice attorneys concerning any of these matters
that bring you here today?
Mrs. Callahan. None of these matters, sir.
Mr. Barr. OK. They've never approached you and asked you
any questions about any of this?
Mrs. Callahan. None of this, sir.
Mr. Barr. Pardon?
Mrs. Callahan. None of this on this subject, sir.
Mr. Barr. OK. And have you had any conversations with or
discussed any of these matters with this lady, Ada Posey?
Mrs. Callahan. No, sir.
Mr. Barr. At no time?
Mrs. Callahan. No, sir.
Mr. Barr. OK. Thank you.
Thank you, Mr. Chairman.
Mr. Burton. Yes, Mr. Waxman?
Mr. Waxman. I have a few questions. It won't take very
long.
Mr. Burton. Well, if you have questions, we'll probably
have another round. Go ahead.
Mr. Waxman. I was interested in recollections of people
about the conversation. Shortly after the problem was
discovered, Laura Crabtree, now Mrs. Callahan, who was the
branch chief of the customer service computer support branch in
the Office of Administration, she had this meeting with Ms.
Golas, Mr. Spriggs, Ms. Lambuth, Mr. Haas, and Ms. Salim, all
of whom testified this morning; Mr. Lindsay, who was OA's
general counsel, spoke with those present by speaker phone and
instructed them to continue investigating the e-mail problem,
but to avoid discussing with anyone else because it was a
sensitive matter.
Now, that was when Mr. Haas thought that if he told his
wife, that you said, Mrs. Callahan, ``There would be a jail
cell with your name on it.''
Now, when these witnesses who testified this morning were
questioned by the staff, obviously Ms. Lambuth accused you of
threatening her with jail, Mr. Haas remembered that, but Ms.
Salim and Ms. Golas did not recall any threats being made at
that meeting, and neither Ms. Golas nor Mr. Spriggs recall any
mention of the word ``jail.'' That was what they said in the
interview. And then they testified somewhat like that, but a
little differently, this morning. So people have their
recollections changed. It's human nature, and I wouldn't
attribute bad intent on anybody's part. You try to remember the
events of 2 years ago.
Now, I have been told by my staff that this tape is now
ready in its entirety, and I'm going to give that one last
chance. So, if we could, let's see what we have.
[Tape played.]
Mr. Waxman. Now, that only was a snippet, and I don't know
what was going to follow next, if he had any further answer to
Mr. Burton, and he may well have said something different in
the interview. But, again, my essential point is that people
have different recollections of what happened 2 years ago, and
we even have different recollections of what happened a few
hours ago. But I thought that we all should have seen that
tape, and I regret that it has taken us so long to get it up
there, but I think that tape, at least as far as it goes,
speaks for itself.
I yield back the balance of my time.
Mr. Burton. Well, I'll just close then by saying that five
people, as I've said before, said they felt threatened. Two of
those people said that they had been told they would go to
jail. One, when she went to her supervisor, and Mr. Hawkins--
and Mr. Supervisor said, ``You've got to tell us what's going
on,'' and she said, ``Hey, I can't tell you.'' He said, ``Well,
that borders on insubordination.'' She said, ``I'd rather be
insubordinate than to go to jail.'' Now, that sentence, alone,
infers that she felt the same way as the other two. Now, that's
three out of the five.
But, in any event, all five of them felt threatened to the
degree that they had to go to a park across the street to talk
or to Starbuck's, because they felt like they had to keep this
stuff quiet.
So, you know, and then the other fact is that we haven't
had these e-mails, and it has been well over 2 years. Nothing
has been done, and they're trying to run out the clock. At
least that's how it appears to me, and I think to probably most
people who paid attention.
I think we're going around in circles right now, so, unless
there's further comment--real quickly, Mr. Barr. I want to
adjourn this thing.
Mr. Barr. Thank you very much, Mr. Chairman.
Mr. Lindsay, just a quick followup to----
Mr. Lindsay. Yes, sir.
Mr. Barr [continuing]. The question and answer about the
Department of Justice lawyers. Let me be more specific. Did you
approach them to disclose this problem to them?
Mr. Lindsay. Yes, I did, sir.
Mr. Barr. OK. They didn't approach you?
Mr. Lindsay. No, sir.
Mr. Barr. OK. And what was the specific purpose of your
request to them?
Mr. Lindsay. If I remember correctly, my question was: do
we have a Federal records issue associated with the fact that
this information had been, as a result of a glitch, not
included in the ARMS records management system? I believe that
was the specific question.
Mr. Barr. Your concern with the Federal Records Act is
what?
Mr. Lindsay. He would--the folks at the Justice Department
were experts in it and I had a concern. I wanted to make sure
that I conferred----
Mr. Barr. I mean, what was your concern? I agree, you
should have been concerned.
Mr. Lindsay. Yes.
Mr. Barr. That's a real problem with all of this. But what
is your--what was your concern with the Federal Records Act?
Mr. Lindsay. Sir, I believe--in my normal course of
business I considered it due diligence on my part to make that
inquiry. I also wanted to make sure that they were aware of
this so that it could not--it wasn't relevant or wasn't
something that they needed to have or needed information about
in relation to other pending litigation.
Mr. Barr. Doesn't the Federal Records Act require these
documents to be retained and retrieved?
Mr. Lindsay. They were retained.
Mr. Barr. Isn't that a concern?
Mr. Lindsay. The question was: did they have to be retained
in ARMS, as opposed to other means of retaining those
documents, and my recollection of the response that I got was
that no, this was a technical, non-human-intervention problem
that is not a wilful act in any way, shape, or form; therefore,
you are not running afoul of the Federal Records Act and you
are maintaining the information in another form, which can be
searched at a later date and maintained to preserve these
records.
Mr. Barr. So the records are retrievable? They are there?
Mr. Lindsay. To the best of my knowledge, yes.
Mr. Barr. OK. You all just haven't gotten them?
Mr. Lindsay. They have to be reconstructed before they can
be retrieved.
Mr. Barr. Yes.
Mr. Lindsay. That's the thing we're going to work on trying
to get collapsed to as short a time period as humanly possible.
Mr. Barr. Right. Were these lawyers that you talked to at
the Department of Justice, were they the same lawyers
representing the White House in civil litigation?
Mr. Lindsay. In civil--what civil litigation?
Mr. Barr. Involving the White House.
Mr. Lindsay. They represented the Office of Administration
in a records case, the Carlin case. That's the matter which I'm
familiar with what they did.
Mr. Barr. What case is that, the Carlin case?
Mr. Lindsay. That case dealt with--there were plaintiffs
that were essentially claiming that there should be Federal
records systems, electronic records management systems by all
Federal agencies, including, if my memory serves me, including
Congress. The contention was is that any memorandum that you
would generate should be retained in an electronic records
management system similar to the one that we maintain with
ARMS. That was one of the contentions in the argument.
Obviously, doing that, just from anyone's casual
observation, would be a very expensive and complicated
proposition, and the issues in those matters dealt with what
was the scope of that, whether or not the general records 20
issued by the National Archives required that there be that
kind of records management system.
Mr. Barr. The White House has known for quite some time
that this problem exists.
Mr. Lindsay. Which problem?
Mr. Barr. The problem that brings us all here today. And
you've testified that it can be resolved, it's simply a
question of money.
Mr. Lindsay. No, I did not say it was a question of money.
It wasn't a question of money at all. It was more a question of
people than it was of money.
Mr. Barr. Well, you'd have to pay those people, correct?
Mr. Lindsay. Not just a matter of paying the people.
Contractors that are brought in must be managed by people who
can make sure that the Government's interests are covered, in
terms of making sure that they report responsibly, that they
perform their responsibilities. Government workers must be
involved in providing supervision for those activities.
Mr. Barr. Why hasn't it been done, then? I mean, you're
confusing the issue, I think, here. I mean, is it that you all
don't have enough people, you all don't have enough money, you
all don't have enough qualified people? What is it?
Mr. Lindsay. What we have to remember is----
Mr. Barr. And you tell us you've been frustrated for 2
years over this.
Mr. Lindsay. Sir, in November 1998 my technical staff came
to me and said, ``You will not be able to meet your Y2K
objectives with your systems.'' Plain and simple. That was a
very serious proposition.
What that meant is not only would this e-mail issue or
other things happen that would be a problem, but it also meant
that we could possibly have systems failures, and our duty to
provide that kind of administrative support to the Executive
Office of the President would not be fulfilled.
So what we did is we compiled and looked at the list, and
of all the mission-critical systems, those systems that we had
to maintain to make sure that we continued to provide the
support for the Presidency that we're required to do under
statute----
Mr. Barr. Will you define--you keep using this term
``mission critical system'' and ``mission critical project.''
Mr. Lindsay. Yes, sir.
Mr. Barr. Wasn't this mission critical?
Mr. Lindsay. No, it was not, sir.
Mr. Barr. Oh, you don't consider this mission critical?
Mr. Lindsay. It was not considered mission critical. There
was a very----
Mr. Barr. To the Office of Independent Counsel and this
committee? Would the Impeachment Committee have considered this
mission critical?
Mr. Lindsay. I don't know, sir.
Mr. Barr. I mean, it seems fairly important to me.
Mr. Lindsay. Saying it is not mission critical does not
mean that it is not important. All of the projects that we
have----
Mr. Barr. It means it doesn't get done.
Mr. Lindsay. No. It means that it doesn't get done first.
Mr. Barr. Well, it hasn't even been done last.
Mr. Lindsay. It has been done--the $600,000 worth of work
that the contractor was going to charge us----
Mr. Barr. So it is a question of money.
Mr. Lindsay [continuing]. Has been worked on.
Mr. Barr. Has the White House requested the funds necessary
to do this?
Mr. Lindsay. It was not a question of money. We have
requested funds to do it. The question----
Mr. Barr. Well, if you don't need more money, then why
hasn't it been done?
Mr. Lindsay. Sir, I made the statement that it wasn't a
question of money, step one.
Step No. 2 is that we needed the staff to be able to do it.
At the conclusion of Y2K, we had Government staff that had
been working on Y2K work on the resolution of this issue. That
is step two.
To resolve step one, I have made the request to the
Treasury, Postal Appropriations Committee that they provide or
allow us to spend funds from another account in that area so
that we could pay for the contract to perform the work. But
prior to making that request we had to know how much money to
ask for. We had to know--and we've worked out a relationship
with that committee where they have always asked us, prior to
an appropriation, ``What is the total project cost? What are
the taxpayers going to have to pay to actually complete this
issue?'' They don't want to just begin a project and not know
where it is going to end. And I think that is a very
appropriate question that Mr. Kolbe's staff would have for us,
and we wanted to make sure that we were prepared for that.
Mr. Barr. Now Mr. Kolbe's----
Mr. Burton. Let me----
Mr. Barr. I yield, Mr. Chairman.
Mr. Burton. Who did not consider the mission critical?
Somebody had to tell you this is not a top priority. Who was
that?
Mr. Lindsay. There was a very elaborate process.
Mr. Burton. No, no. Who?
Mr. Lindsay. I could not tell you who.
Mr. Burton. You don't know who told you this was not a top
priority? When the independent counsel, this committee, the
Impeachment Committee, the Judiciary Committee of the U.S.
House was conducting--you can't remember who didn't--who told
you----
Mr. Lindsay. Sir, I really do believe we're getting two
issues confused. The first issue is the responsiveness of
documents. That is an issue that you very legitimately and I
very much respect that you have a concern about having
documents produced that should be produced to those appropriate
bodies that should be produced. That is a determination that
the counsel's office would have communicated and would be
involved in making a determination.
There is a problem No. 2.
Mr. Burton. Wait a minute.
Mr. Lindsay. The second problem is the resolution of the--
--
Mr. Burton. How did you know----
Mr. Lindsay [continuing]. Glitch and the reconstruction.
Mr. Burton. How did you know that getting these e-mails to
the relevant individuals when you knew there was a glitch, how
did you know that was not mission critical? How did you know
that? Somebody had to tell you that.
Mr. Lindsay. How did I know it wasn't mission critical?
Mr. Burton. Yes. I mean, how did you know this wasn't a top
priority?
Mr. Lindsay. Because we had a team of people, a Y2K team
with a Y2K administrator, who followed Federal guidelines on
assessing what mission-critical systems were.
Mr. Burton. OK. Who was the head of that group?
Mr. Lindsay. Terry Misich was our Y2K coordinator.
Mr. Burton. OK. That was the Y2K coordinator. So they
said--the Y2K coordinator said that this was not a top
priority, but that the Y2K was more of a priority?
Mr. Lindsay. I don't have any recollection of anyone on the
Y2K team making specific reference to this particular project.
The analysis----
Mr. Burton. OK. Then who decided that this was not a
mission-critical issue, because we had the independent counsel,
Mr. Starr, we had this committee and other committees--I think
Senator Thompson's committee--and we also had the Judiciary
Committee all subpoenaing documents, and this was a top
priority for the independent counsel and for the Congress of
the United States. So who in the White House decided this was
not a top priority, a mission-critical priority?
Mr. Lindsay. The determination of mission-critical systems
was a technical determination, as----
Mr. Burton. Who made it?
Mr. Lindsay. It was a collective decision.
Mr. Burton. Well, who made it? Who was the head? Who made
the decision?
Mr. Lindsay. Ultimately, the sign-off on the mission-
critical systems as to how we went about doing it was probably
done by the director of the Office of Administration or by the
assistant to the President for management and administration.
Mr. Burton. And who are they?
Mr. Lindsay. One or the other.
Mr. Burton. And who are they?
Mr. Lindsay. Ada Posey and Virginia Apuzzo.
Mr. Burton. OK. So those two----
Mr. Lindsay. In terms of the approval of that list. Do not
take from the approval of that list that there was a specific--
--
Mr. Burton. Well, somebody had to----
Mr. Lindsay [continuing]. Analysis----
Mr. Burton. Somebody had to say, ``Hey, this is not
something that we want to do right now. This is more important
over here.'' And I just want to know who it was.
Mr. Lindsay. Well, just to put it in context, sir, there
were thousands of projects which existed in the Office of
Administration, technical projects.
Mr. Burton. I understand. I understand. But who set the
priorities?
Mr. Lindsay. A combination of people.
Mr. Burton. You don't get your orders from a combination of
people. You get them from somebody. Who put this down the list?
Who set the priorities?
Mr. Lindsay. Well, I beg to differ. One of the things that
we worked on in working with our Appropriations Committee is
that when we set priorities we set those priorities
collectively. They required that we make those determinations--
--
Mr. Burton. You know, we don't have a troika. We don't have
three people running the country. We have one, a President of
the United States. He is the chief--he's the Commander-In-
Chief. He's the boss. Somebody--we have a chain of command.
When you get your orders, you're getting them from somebody.
And so this was a mission-critical issue as far as the Congress
and the independent counsel was concerned, and I want to know
who set the priorities.
Mr. Lindsay. I can't answer the question more fully than I
already have, sir.
Mr. Burton. And I don't think you've answered it at all.
We've got documents that show that you were working on a
Christmas card list and preparing new fax cover sheets. Were
those mission critical?
Mr. Lindsay. Y2K mission critical----
Mr. Burton. No, no. We have got documents that we'll be
glad to show you that show you were working on Christmas card
lists and preparing new fax cover sheets. Were those more
critical than getting these documents to the Congress?
Mr. Lindsay. Those projects were completed--may have been
completed, in addition to many, many other critical systems.
The critical systems that are defined in the mission-critical
list were things like the e-mail system, the maintenance of our
network system. Those are the kind of mission-critical systems
that we----
Mr. Barr. Mr. Chairman, if I can reclaim my time, could we
get--do you have a list that shows where this particular matter
fits on the list of priorities, then?
Mr. Lindsay. I have a list of the mission-critical systems,
which this project was not included on. I do have that.
Mr. Barr. OK. And who wrote that?
Mr. Lindsay. It was prepared by the team of people who
prepared the Y2K and prepared our Y2K----
Mr. Barr. Is there, like, a team leader?
Mr. Lindsay [continuing]. Contractor. In addition to--I
don't have a--I don't know who specifically were referred to it
or did it, other than the Y2K coordinator, who was the person
who I dealt with. There were other people, including contractor
people. There were Government people.
Mr. Barr. Certainly contractor people----
Mr. Lindsay. And they would prepare----
Mr. Barr [continuing]. Didn't determine that this matter
was not important. I would hope that the White House wouldn't--
--
Mr. Lindsay. I could not--I cannot answer the question
more----
Mr. Barr [continuing]. Give that out to contractors.
Mr. Lindsay [continuing]. Fully than I have already
answered, sir.
Mr. Barr. How about that specific question?
Mr. Lindsay. Which specific question?
Mr. Barr. Did contract people determine that this matter
was not important enough to followup on?
Mr. Lindsay. No, sir.
Mr. Barr. OK. So you can at least answer that.
Mr. Chairman, I have never heard anything like this. Maybe
you have, but I haven't.
Mr. Burton. All I can say is I'm tired and we're adjourned.
[Whereupon, at 7:43 p.m., the committee was adjourned.]
MISSING WHITE HOUSE E-MAILS: MISMANAGEMENT OF SUBPOENAED RECORDS--DAY
TWO
----------
THURSDAY, MARCH 30, 2000
House of Representatives,
Committee on Government Reform,
Washington, D.C.
The committee met, pursuant to notice, at 11:30 a.m., in
room 2154, Rayburn House Office Building, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Shays, Horn, Mica, Souder,
Scarborough, LaTourette, Barr, Miller, Hutchinson, Walden,
Waxman, Lantos, Norton, Cummings, Kucinich, and Davis.
Staff present: Kevin Binger, staff director; James C.
Wilson, chief counsel; David A. Kass, deputy counsel and
parliamentarian; Mark Corallo, director of communications;
Pablo E. Carrillo and M. Scott Billingsley, counsels; Jason
Foster and Kimberly A. Reed, investigative counsel; Kristi
Remington, senior counsel; Robert Briggs, deputy chief clerk;
Robin Butler, office manager; Michael Canty, staff assistant;
Leneal Scott, computer systems manager; Lisa Smith Arafune,
chief clerk; Maria Tamburri, assistant to chief counsel;
Corinne Zaccagnini, systems administrator; Phil Schiliro,
minority staff director; Phil Barnett, minority chief counsel;
Kenneth Ballen, minority chief investigative counsel; Kristin
Amerling, minority deputy chief counsel; Jon Bouker and Paul
Weinberger, minority counsels; Ellen Rayner, minority chief
clerk; Earley Green, minority assistant clerk; Andrew Su,
minority research assistant; and Chris Traci, minority staff
assistant.
Mr. Burton. The committee will come to order.
I ask unanimous consent that all Members' and witnesses'
written opening statements be included in the record and
without objection so ordered.
I also ask unanimous consent that all articles, exhibits,
extraneous or tabular material referred to be included in the
record and without objection so ordered.
And since this is a continuation of last week's hearing we
will follow the same rule, starting with a half hour of
questions on each side and then going to the 5-minute rule.
As I said, we are going to continue the hearing we began
last Thursday into the White House e-mail problem. Today, we
will hear from White House Counsel Beth Nolan. And, welcome, we
appreciate your patience. Because last week we anticipated
having you. Then we found out additional information about the
e-mails. We thought it would be better to wait until this week
because of the additional information we were looking into. So
we appreciate your bearing with us.
We will also hear from Assistant Attorney General Robert
Raben. Is that pronounced correctly?
Mr. Raben. Raben.
Mr. Burton. Mr. Raben.
I would like to briefly review what we learned last week.
First, we heard from a panel of Northrop Grumman employees.
They operate the White House e-mail system. Two of them
discovered the problem. Two and a half years worth of incoming
e-mails weren't searched to comply with subpoenas from a number
of independent counsels, our committee and others.
They were called in to a meeting with two White House
officials. Their testimony about that meeting was pretty vivid.
They all remembered that they were ordered to keep the e-
mail problem secret.
They all remembered being ordered not to tell their bosses
about it.
Several remembered being ordered not to tell their spouses
about it.
One remembered being told there would be a jail cell with
his name on it if he told anyone. Three people remembered the
jail cell comment.
One woman felt threatened enough that she risked being
fired from her job rather than tell her boss about it. She told
her boss, 11I would rather be insubordinate than go to jail.''
We then heard from the two White House officials who
conducted the meeting--Laura Crabtree, now Laura Callahan, who
was in the room; Mark Lindsay was on a speaker telephone. Miss
Callahan testified that she never threatened anyone. She said
she never told anyone they would go to jail.
Mark Lindsay couldn't remember the phone call or the
meeting at all. He couldn't remember a followup conversation he
held with a Northrop Grumman supervisor who was angry about the
meeting. However, he was absolutely sure that he didn't
threaten or intimidate anyone.
I don't understand how you can be so sure of what you said
in a conversation that you can't remember, but that is his
testimony.
So we have two very different accounts of the same meeting.
How do we reconcile that? The only thing we can do is look into
who has the motivation to tell the truth and who has the
motivation not to.
It is clear that the Northrop Grumman employees were in an
uncomfortable situation. Northrop Grumman has a contract with
the White House. They could lose that contract. The contractors
have to work with White House officials every day. If anything,
they had an incentive to soft pedal what happened, not to rock
the boat. They didn't do that.
On the other hand, Mr. Lindsay and Mrs. Callahan are
accused of doing something that is really wrong. They are
accused trying to intimidate people who work for them. They are
accused of telling people to hide things from their
supervisors. The morning of our hearing, the Justice Department
announced that they were going to open a criminal
investigation. Mr. Lindsay and Mrs. Callahan are potential
targets of that investigation. They had every reason, if they
wanted to, to give misleading testimony or to engage in
selective memory loss, which seems to be an epidemic at the
White House.
Given the fact that the Northrop Grumman contractors have
no incentive to make allegations against the people they work
for and every incentive not to make those allegations, I
believe greater weight has to be given to their testimony. I
have to come to the conclusion that their version of events is
much closer to the truth.
That is where we left matters last week.
Today, we focus on another facet of this problem. In many,
many respects, it is an even more important facet. That is,
when did the White House counsel's office find out about this
mess and what did they do about it?
Here is why that is important. Northrop Grumman isn't
responsible for complying with subpoenas to the White House.
Laura Callahan and Mark Lindsay are not responsible for
complying with subpoenas. The White House counsel is
responsible for complying with the subpoenas. When the
counsel's office finds out about a problem like this, they have
an obligation. They either have to go get the information that
wasn't searched and turn it over. Or, if they can't, they have
an obligation to tell us and others who have subpoenaed
information like the independent counsel that there is a
problem.
The White House did not do either.
As I mentioned last week, the White House has a track
record on subpoena compliance that is not very good:
We fought with the White House for 4 months in 1997 for
documents in the illegal fundraising investigation. We had to
threaten to hold the White House counsel, Mr. Ruff, in contempt
to get the documents. White House lawyers ignored their
responsibility to the Congress and to the American people.
Then in October 1997, months after they told us that we had
all of the records, the White House found hundreds of
videotapes of the President and the Vice President at
fundraisers. He claimed that it was an honest mistake.
In the White House data base investigation, they withheld a
staffer's handwritten notes from the committee for more than a
year. Those notes indicated that the President had expressed an
interest in the White House data base being compatible with a
DNC data base.
These are just a few examples of the problems that we have
had to deal with. The track record is pretty clear, complying
with subpoenas is something this White House does as a matter
of last resort.
The illegal fundraising investigation is just one area
where we have been affected by this problem.
We have been conducting an investigation into the Waco
standoff. We subpoenaed documents from the White House. We were
never told that potentially hundreds of thousands of incoming
e-mails were not searched for information on Waco.
We conducted an investigation into the President's decision
to grant clemency to 16 Puerto Rican terrorists. We issued two
subpoenas to the White House for documents. I want to read you
a paragraph from the response that we received from the White
House, ``we have been in the process of searching archived e-
mails for materials responsive to the committee's subpoena.
Enclosed please find the responsive documents.''
That was last October. The White House counsel's office had
known about the e-mail problem for more than a year when we got
that memo, and they didn't tell us.
Why wasn't this committee ever informed that 2\1/2\ years
of incoming e-mails were never searched? Was the Justice
Department informed? Were the various independent counsels
informed? Those are questions that we want to address at
today's hearing.
We know that high-level White House officials were informed
about the problem almost immediately.
On June 19, 1998, the deputy chief of staff, John Podesta,
and the White House counsel, Charles Ruff, got a memo. It
explained the problem in detail.
The same day, June 19th, Mark Lindsay apparently met with
Mr. Ruff and Cheryl Mills, the President's top two lawyers, to
explain the problem.
Just 1 day before that, one of the Northrop Grumman
contractors prepared an estimate, 246,000 of the more than 1.3
million e-mails that were on the server had not been archived.
That is nearly one in five.
I have had a chance to review Ms. Nolan's testimony. She
states that Mr. Ruff was notified of the problem but that he
never understood the full extent of the problem.
The President's counsel never understood the full extent of
the problem? I seriously doubt that explanation. This issue
isn't very complicated. There is a huge body of information
that, to this date, has never been reviewed. If documents are
withheld once, we can try to understand. If it occurs twice,
you have justifiable doubts. But when it happens over and over
again, and not just here but with the independent counsels and
Senator Thompson, you start to get a little skeptical.
In addition, the selective memory loss that almost every
witness has when they come before this committee from the White
House also causes doubts.
Mr. Ruff had no intention of turning documents over to us
in 1997 until we forced him to by starting to move a contempt
citation.
Mr. Ruff and his staff told us that they had no idea that
there were hundreds of videotapes of the President at
fundraisers--even though his staff had drafted memos on the
subject. They didn't know about it, but they had already
drafted memos on the subject.
Now we are being told although that Mr. Ruff knew about the
e-mail problem he did not fully understand it. With all those
subpoenas coming in for all this information, all this evidence
to the White House counsel and he didn't understand it? It
would be easier to believe that if the White House had a better
track record.
Ms. Nolan didn't become White House counsel until August
1999. In her statement, she says that she wasn't informed until
January. She lays out the timeline of when she informed various
agencies conducting investigations. I want to tell you it
bothers me about this sequence of events.
On March 7th, my staff interviewed the Northrop- Grumman
contractors.
On March 8th, I wrote to Ms. Nolan to ask her why we had
never been informed of this problem. I also wrote to Attorney
General Reno to ask her why the Justice Department had not
looked into it.
On March 10th, 2 days later, the Justice Department called
the White House to ask them what was going on with the e-mails.
On March 15th, the White House counsel's office provided an
explanation to the independent counsel's office.
On March 20th, the White House gave the Justice Department
a written explanation.
The White House first discovered this problem in June 1998.
The Justice Department has known about it for some time. They
have been representing the White House in the Filegate lawsuit.
It was on the front page of the Washington Times in February.
Yet nobody seems to do anything around this town until our
committee starts interviewing people and writing letters.
That is just wrong. I shouldn't have to embarrass people to
get them to do their jobs.
This is almost the same thing that happened with the
Justice Department's interviews of the President and the Vice
President. We had to force the Justice Department to turn those
interviews over to us. If we had not done that, nobody would
have known that they never asked the President or the Vice
President one single question about their foreign money
contacts.
Two years ago, FBI Director Louis Freeh and prosecutor
Charles LaBella tried to get the Attorney General to appoint an
independent counsel for the illegal fundraising investigation.
They both wrote long memos to Janet Reno. Those memos
practically predict this e-mail mess that we now have.
Director Freeh and Mr. LaBella both understood that the
Attorney General had too many conflicts to investigate her boss
and other top aides and people at the White House. They both
understood that the Justice Department would not be aggressive
in pursuing evidence from the White House. And that is exactly
what has come to pass.
One of the most amazing things to me is that the Justice
Department is on both sides--both sides of this e-mail issue.
The Civil Division is representing the White House in the
Filegate lawsuit. They are working with the White House to
delay production of the e-mails. The Campaign Finance Task
Force, which has always been a paper tiger, is now
investigating whether obstruction of justice has occurred.
It is pretty likely that the Justice Department will have
to investigate its own conduct in covering up these e-mails.
Today, I sent a criminal referral to the Justice Department
about possible perjury committed by Daniel Barry, a White House
staffer who testified before the committee last week. In July
1999, Mr. Barry filed an affidavit, sworn affidavit in the
Filegate civil suit. In that affidavit, he stated that the
White House e-mails were archived in the ARMS system. He did
not say anything about the Mail2 problem, even though he had
known about it for over a year. That is perjury.
The worst part of it is that Mr. Barry's affidavit was
prepared by lawyers from the Justice Department and the White
House. They were representing him at the time. They may have
known that the affidavit was false and allowed Mr. Barry to
sign it and submit it to the court. That conduct should be
investigated as well so we can find out whether there was a
criminal conspiracy to provide false testimony to a Federal
court and cover up this problem.
You know, on a personal note, it makes me sick to think how
Mr. Barry was used by the White House and the Justice
Department. I don't think he is a bad person, but now he is in
a lot of trouble. I wonder if anyone even cares in this White
House or the Justice Department.
The problem is that the Justice Department cannot be
expected to investigate these charges. They would be
investigating potential criminal conduct by their own lawyers.
It is just one more example of why the Attorney General needs
to appoint a special counsel who is truly independent.
It is an intolerable situation. The Attorney General should
have listened to Mr. Freeh and Mr. LaBella 2 years ago. She
should have appointed an independent counsel. If she had, maybe
the President would have been asked at least a few questions
about the finance scandal, the campaign finance scandal, about
James Riady, John Huang or Charlie Trie. Maybe the Vice
President would have been at least asked a few questions about
the Hsi Lai Temple.
Well, the independent counsel law has now expired, and the
only alternative is for the Attorney General to appoint a
special counsel. However, the least she can do is appoint this
special counsel to get to the bottom of the e-mail mess. I have
called on her to do so.
I ask unanimous consent to place my correspondence with the
Attorney General about this matter into the record at the
conclusion of my statement.
The Justice Department can't be on both sides of this
issue. It is fairly clear that the Department is not going to
be aggressive in pursuing these e-mails from the White House.
The only answer is to appoint a special counsel to do the job.
In the next few days, I am going to introduce a resolution on
the House floor calling for a special counsel. I invite all of
my colleagues to be cosponsors.
Mr. Raben is here from the Justice Department. We are going
to be asking Mr. Raben some questions about when the Justice
Department first learned about the missing e-mails. We are
going to ask what has been done about it. We are going to ask
for an explanation of how the Justice Department can possibly
be on both sides of this conflict.
Mr. Raben, I hope you will be candid with us and give us as
much information as possible. I want to thank you and Ms. Nolan
both for being here.
[The prepared statement of Hon. Dan Burton follows:]
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Mr. Burton. I now recognize Mr. Waxman for his opening
statement.
Mr. Waxman. Mr. Chairman, I want to welcome Beth Nolan and
Robert Raben to today's hearing, and I am looking forward to
hearing their testimony.
Last week's hearing was instructive. We learned that no one
in the White House had any role in developing the message
retrieval system. We also learned that no one in the White
House asked that any e-mail messages be excluded from the
system. And that before June 1998, no senior officials in the
White House even knew that some e-mail messages were being
excluded from the retrieval system.
By June 1998, however, senior White House officials were
informed that a computer glitch existed. It is important for
Ms. Nolan to provide information on how senior officials
reacted to this information. Did anyone at the White House try
to keep any information from investigators or was there simply
a misunderstanding between computer technicians and White House
lawyers? Deliberate concealment would seem to be a case of
obstruction of justice. Honest confusion, on the other hand,
would be regrettable but understandable. Until we know the
facts, we should be careful about making unsubstantiated
allegations.
There is, unfortunately, already a need to clarify several
important points. During last week's hearing, a significant
amount of time was focused on the question of whether Northrop
Grumman employees were threatened with jail. Mrs. Callahan
denied ever making the threat.
But let's put that denial aside for the moment. Let's just
look at the testimony of the five employees.
Mr. Haas, who seemed credible to me, clearly believed he
had been threatened with jail by Mrs. Callahan. He told us
that, in a meeting with Mrs. Callahan and his four coworkers,
he flippantly asked what would happen if he discussed the
computer glitch with others. He remembers Mrs. Callahan warning
him that, ``there would be a jail cell with his name on it.''
Betty Lambuth agreed with Mr. Haas's recollection and added
that in a second meeting she had with Mark Lindsay and Paulette
Cichon a second threat by Mr. Lindsay was made.
Sandra Golas initially testified that, while she remembered
the word jail being used in the meeting, she couldn't remember
who said it. But she later said she did feel threatened and
thought jail was a real possibility.
Yiman Salim and John Spriggs, both of whom were in the
meeting and both of whom seemed credible, have no memory of
jail ever being discussed. Miss Salim testified that she never
felt threatened, and both said they believe Mrs. Callahan acted
reasonably under the circumstances. As I said, I am putting
aside Mrs. Callahan's denial regarding the threat.
In reviewing last week's testimony of just the five
Northrop Grumman employees, I am not comfortable in reaching
any conclusion on whether a threat was made. There is a very
real conflict between credible witnesses--Mr. Haas, Ms. Salim,
Mr. Spriggs--that I think it makes it irresponsible to issue
final judgments about what happened.
Miss Lambuth also testified that in a second meeting with
Mark Lindsay and Paulette Cichon Mr. Lindsay told her that if
she discussed the e-mail problem with anyone, she would lose
her job and be arrested. But I have a signed statement from Ms.
Cichon who was in that meeting, and Ms. Cichon says that never
happened.
In fact, Ms. Cichon says that, ``at no time during this
meeting did I perceive Mark threaten Betty or myself. At no
time was a threat of jail mentioned or any other threat. If any
threat were made, I would have certainly remembered it, and I
would have taken the appropriate action in response.''
I should point out that Ms. Cichon has spent almost all of
her career in the private sector and no longer works in the
White House.
Well, also at last week's hearing Miss Lambuth testified
that the missing e-mails contained information relating to the
FBI files, Monica Lewinsky and the campaign finance
investigation. How did she know that? Well, she said she was
told this by Bob Haas. But Mr. Haas, who was at the table, was
asked whether he said that, and he said he didn't. And I want
to show a tape about what they said.
[Videotape played.]
Mr. Waxman. Well, I am not finished, Mr. Chairman. I do
want to complete my statement.
I wanted to show that videotape because we had a clear
contradiction in testimony. In fact, we had a clear
contradiction in testimony with Miss Lambuth on three separate
issues where she testified one way and others testified that
she was wrong.
She said that she knew the content of these e-mails, and
she said she knew them because of Mr. Haas. Mr. Haas said that
he never told her.
She said that Mr. Hawkins had one version of her employment
status. Mr. Hawkins denied that.
And we also have this contradiction now today with Miss
Cichon making a statement about how she was wrong about saying
there were second threats.
The point I am making is we have a conflict in testimony.
And I was struck by the fact the chairman has asked for a
criminal indictment against Mr. Barry for his statements which
didn't go as far as one would have wanted him to go in
describing the 1994 reconstruction status of the ARMS system.
But I looked at his affidavit, and I think if you look at
it in context, it seems to me to say that there ought to be a
referral of criminal charges for that affidavit is not a level
way to treat witnesses who may have said things that may have
been false. Statements are often false. Whether they are
intentionally false is another issue.
And I would be shocked if the chairman would say that Miss
Lambuth ought to have a criminal prosecution against her false
statements made to us. If we are going to accuse people of
crimes, do it for everybody who says something false, not just
those who don't say things that fit in with the theory that we
want to advance.
Yesterday, there was a front-page news story that claimed
that the White House withheld the Monica Lewinsky e-mails that
were discovered in 1998. I believe that story is likely wrong.
When Mr. Haas discovered the missing e-mails in 1998, they were
compared to the e-mails that had already been given to the
independent counsel. It is my understanding that the comparison
indicated that what was discovered had previously been provided
to Mr. Starr. Well, good investigators find the facts first and
reach conclusions later. That should be our standard, and it
should be our objective today.
Mr. Chairman, I want to ask unanimous consent to put the
statement by Paulette Cichon in the record.
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Mr. Burton. Without objection, so ordered.
Does that conclude your opening remarks?
Mr. Waxman. That concludes my opening comments.
Mr. Burton. We will now welcome our panel to the witness
table: Beth Nolan and Robert Raben. I got that right.
Please stand and raise your right hands, please.
[Witnesses sworn.]
Mr. Burton. Be seated. Thank you.
Ms. Nolan, you're now recognized, if you so desire, to make
an opening statement.
STATEMENTS OF BETH NOLAN, COUNSEL TO THE PRESIDENT; AND ROBERT
RABEN, ASSISTANT ATTORNEY GENERAL FOR LEGISLATIVE AFFAIRS
Ms. Nolan. Thank you, Mr. Chairman.
Mr. Chairman, Congressman Waxman, members of the committee,
my name is Beth Nolan. I am counsel to the President of the
United States. I have held this position since September 1999.
I appear today to address the e-mail system used by the
Executive Office of the President.
As you know, last Thursday, I submitted a written statement
in anticipation of my scheduled appearance for that day. I ask
that it be made part of the record.
As I explained in that statement, my staff and I have
devoted a large part of the past several weeks trying to
understand these issues, in gathering information to help us
understand the matter and how to address it. We have been
learning additional information about these matters almost
every day.
Although the new information assists us in better
understanding the problem, it can alter previous assumptions,
determinations and conclusions. Therefore, although we have
learned more about this matter over the past several weeks, we
are still reviewing issues, exploring certain remedies, and
probing some outstanding questions.
For these reasons, I want to emphasize that my testimony
today is based on my current understanding of the information
that we have gathered in the course of our initial review. As
our review progresses to completion, we will likely uncover
information that alters or amends these preliminary
conclusions. Indeed, in 1 week I have learned additional
information since I submitted my statement, and I want to
update that statement as follows.
First, the Office of Administration has informed me that it
has contracted with a private entity to provide the technical
expertise and resources necessary to restore the back-up tapes
to an easily searchable form. The contractor's preliminary
estimate--and I want to emphasize preliminary because these
estimates are subject to amendment as the process proceeds and
the contractor learns new information--the preliminary estimate
suggests that the requisite equipment and other resources for
the project will be in place, tested, and ready to go in
approximately 70 days. We anticipate conducting the restoration
in batches so that we can have a rolling production. The
contractor estimates that this part will be completed in about
170 days from the beginning of the project. In other words, if
what--if these initial estimates hold up, we could have the
back-up tapes searched within 6 months.
Finally, the contract also calls for independent validation
and verification, which means that a completely different
private contractor will come in and certify that this project
is proceeding in a timely and cost-effective manner.
Second, I would like to address media reports yesterday of
a so-called zip disk and the suggestion that the disk contains
previously undisclosed e-mail messages. Those reports were
confusing and misleading.
As Northrop Grumman employee Robert Haas told the committee
last week, in June 1998, he conducted a search of e-mail
accounts for Lewinsky-related materials. Mr. Haas gave the
results of that search to his superiors who ultimately turned
them over to the White House counsel's office which determined
that these e-mails were duplicative of ones that had already
been produced. At the same time, Mr. Haas saved the results of
his search on a file of the F drive of his computer. The zip
disk, which, as I understand it, is a computer disk and able to
hold more information than a regular diskette, referenced in
yesterday's press is simply a copy of the file maintained on
Mr. Haas's computer. The data on the disk was neither newly
discovered nor previously undisclosed.
Third, last week I stated that I instructed Security
Officer Charles Easley to conduct a review of the allegations
of threats. In light of the Department of Justice's
announcement that the Campaign Finance Task Force will be
conducting a criminal investigation of this matter, I have
instructed Security Officer Easley to postpone any review of
this matter until further notice so that we can ensure that we
do not interfere with that investigation.
Fourth, I stated last week that there were approximately
550 back-up tapes from the Office of the Vice President.
Security Officer Easley has indexed the OVP back-up tapes from
IS&T, and I am informed now that the total number of OVP tapes
is approximately 625.
Fifth, I stated last week that 28 other accounts within the
Office of the Vice President have not been managed by ARMS, the
Automated Records Management System. We now believe that there
were only 24 such accounts, all but three of which were created
before 1997.
Since last week, IS&T has ensured that all 24 accounts,
including the Vice President's, are now being ARMS managed.
Finally, IS&T has not yet been able to correct the problem
that incoming e-mail to the OVP is not being captured by ARMS.
So I want to make clear that the accounts are all being ARMS
managed for e-mail being created in the Office of the Vice
President, but incoming e-mail is not being ARMS managed. They
are working to make that happen as quickly as possible. In the
meantime, the counsel to the Vice President has instructed OVP
staff to retain incoming e-mails other than purely personal e-
mail on their servers, their individual servers.
I now want to emphasize the following points.I21The
computer glitches that occurred with the Mail2 and letter D
problems are the result of unintentional human error associated
with an extraordinary electronic records archiving system. No
one attempted to hide responsive information from this
committee or from any other investigative body. The EOP has
produced or identified to this committee all responsive
information that it located, including over 7,700 pages of e-
mail records in the campaign finance investigation alone.
Until recently, the counsel's office was not aware of the
scope and nature of these errors. In June 1998, the counsel's
office thought the error was isolated to one search and had
subsequently been fixed. That is, the counsel's office knew
about a possible problem but not the problems that we now are
talking about and understand. The counsel's office had no
reason to believe that this error had any effect on its
searches. Had it thought otherwise, it would have addressed the
problem.
The back-up tapes of e-mail records are secure. As I
mentioned earlier, we have already begun the process that will
enable us to search these records, and we will do so as quickly
as possible.
Mr. Chairman thank you for the opportunity to address this
committee.
Mr. Burton. Thank you, Ms. Nolan.
[The prepared statement of Ms. Nolan follows:]
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Mr. Burton. Mr. Raben.
Mr. Raben. I don't have an opening statement, sir.
Mr. Burton. No opening statement. We will get right to the
questions.
First of all, let me make a real quick statement.
I still find it very difficult to understand or believe
that after the Northrop Grumman employees brought to the
attention of their supervisors and the people at the White
House that there was this glitch that there wasn't a very
thorough search of the incoming e-mails. You indicated that
they thought they had covered it. But the fact is there were
subpoenas from a number of independent counsels, our committee,
and everyone at the White House knew about the campaign finance
investigation, the Lewinsky matter and the other issues; and it
seems to me that there would have been every effort made to
make absolutely sure that a thorough--very thorough search was
done. And if it was brought to the attention of people at the
White House by the Northrop Grumman people that this glitch did
occur, then it seems to me that the extent of the search into
the missing e-mails would have been much more thorough than it
was.
Now, let me just ask you a few questions.
First of all, 2 days ago, when he was asked about my call
for a special counsel to investigate the e-mail matter, White
House spokesman Joe Lockhart said,
I think the Justice Department will have to make that
decision. I will only remind people that, you know, Dan Burton
asking for an outside counsel or a special counsel is like the
sun coming up in the morning. It happens, you know, once a week
or once a month. And you all will have to remember all of the
pressing issues that he called for outside counsels on and what
came with of them.
Mr. Lockhart seems to be indicating that the President does
not think that this is a very serious matter. Is that the
President's position?
Ms. Nolan. Mr. Chairman, the President has asked me to make
sure that we can get these searched as quickly as possible. And
that is what we are doing. He takes that very seriously.
Mr. Burton. Let me ask you a question. Since Mr. Lockhart
made that statement, do you know how many times that I have
called for an independent counsel? He said it is kind of like
the sun coming up every morning. Do you have any idea?
Ms. Nolan. Mr. Chairman, I did not make that statement. I
do not have any idea.
Mr. Burton. Just so Mr. Lockhart and the American people
have the facts, I have only called for an independent counsel
twice, not every morning when the sun comes up. And one has not
been appointed for campaign financing and the e-mail problem.
And I am in pretty good company because the Director of the FBI
and Chuck LaBella also thought there should be independent
counsels for the campaign finance investigation.
I would like to call up exhibit--well I would like to say
one more thing. He also has said that we issued 700 subpoenas
to the White House, and that is only off by 670. We have issued
30 subpoenas to the White House, not 700.
Would you put up exhibit No. 56? Is that on the form there?
This is an affidavit. Do you have a copy of that, Ms. Nolan?
Ms. Nolan. What is it, sir?
Mr. Burton. It is an affidavit that was submitted in court
in July 1999 by Daniel Barry, a White House employee.
Ms. Nolan. I do have a copy.
Mr. Burton. Did lawyers from the White House counsel's
office assist in the preparation of that affidavit?
Ms. Nolan. Mr. Chairman, I know that lawyers from the White
House counsel's office would have been working with the lawyers
of the Department of Justice on this matter. I don't know if
they assisted in the preparation of this particular affidavit.
Mr. Burton. Well, we have been informed that they did. And
if could you check on that, I would appreciate it.
Ms. Nolan. Certainly.
Mr. Burton. You don't have any idea which lawyers from the
White House were involved then.
Ms. Nolan. Mr. Chairman, I know that a couple of lawyers
have worked on this matter before. As I said, I don't know the
specifics of this affidavit.
Mr. Burton. Could you give me the names of the ones that
you think----
Ms. Nolan. Yes. I believe Sally Paxton worked on this
matter at some point and Michelle Peterson.
Mr. Burton. Michelle Peterson was one that we had
information that had been involved.
Mr. Raben, did lawyers from the Justice Department assist
in the preparation of that affidavit?
Mr. Raben. I don't know, sir.
Mr. Burton. You don't know. Could you find out for us?
Mr. Raben. Absolutely.
Mr. Burton. We were told that Justice Department Civil
Division lawyers were involved, and we have been informed that
James Gilligan was the main DOJ lawyer, and we would like for
to you double-check that.
Mr. Raben. I will find out, sir.
Mr. Burton. Ms. Nolan, at the time that this affidavit was
prepared in July 1999, the counsel's office knew about the e-
mail problem, didn't they?
Ms. Nolan. As I just testified, no. I do not believe that.
At least when you talk about the e-mail problem--if you mean
the problem that we all know about and are talking about today,
no.
Mr. Burton. Well, they knew that the people from Northrop
Grumman had informed Ms. Lindsay and Ms. Crabtree and that had
been kicked up to Mr. Podesta. Did you not know that?
Ms. Nolan. It is my understanding, Mr. Burton--and, of
course, I wasn't there, so this is my understanding--that
Charles Ruff, then counsel to the President, knew or had been
informed that there had been some kind of problem with an e-
mail search, that a subsequent search was conducted in order to
see if the e-mails had been missed, that that production was
provided to the counsel's office which compared it against e-
mails it had already produced and determined that there had
not, in fact, been any missing e-mails.
Mr. Burton. Well, but the point is, they did know there was
an e-mail problem.
Ms. Nolan. They knew that there had been a glitch which
apparently had been fixed. They did not know that there was any
ongoing or larger e-mail problem, as far as I understand, sir.
Mr. Burton. Mr. Raben, at this time, in July 1999, the
Justice Department Civil Division lawyers knew there was an e-
mail problem, didn't they?
Mr. Raben. I don't know, sir. I don't know precisely when
the Department or Civil Division attorneys learned about it.
Mr. Burton. Were you briefed about any of the questions
that we might be asking or any of the information we might be
seeking before you came up here? Because the first few
questions we have asked you don't have any idea what we are
talking--or don't have any answers.
Mr. Raben. I read your--I read the statement that you
delivered last week where you indicated what you would be
asking me, and I read a news account, and I saw what you would
be asking me.
Mr. Burton. This was one of the questions that--I mean, it
was pretty apparent that we would be asking you if the Justice
Department knew about the e-mail problem in July 1999. And you
say you don't know?
Mr. Raben. July 1999?
Mr. Burton. Yes.
Mr. Raben. Yes, I said I didn't know. You asked about July
1998. But I don't have the facts, and I know that that is the
subject of an inquiry right now at the Department of Justice,
about exactly what we knew when.
Mr. Burton. I am disappointed that, you know, that the
Justice Department, since this is a very serious matter, didn't
work with you and prepare you more for the testimony that
you're giving today. It is inconceivable that you would come up
here when you're asking these questions that are extremely
important and not have any of the answers.
Ms. Nolan, paragraph 4 of the affidavit states, and you
have that in front of you, since July 14, 1994, e-mail within
the EOP system administered by the Office of Administration has
been archived into the EOP Automated Records Management System,
the ARMS system. This statement is not true, is it? It is
false.
Ms. Nolan. Mr. Chairman, could you explain to me why you
think it is false?
Mr. Burton. Well, I think the question pretty much speaks
for itself. I'll read it to you again. Since July 14th, 1994,
e-mail within the EOP system administered by the Office of
Administration has been archived in the EOP Automated Records
Management System. Now, it hasn't been, has it?
Ms. Nolan. Mr. Chairman----
Mr. Burton. Has it been archived in that system?
Ms. Nolan [continuing]. E-mail was archived. It turned out
that some e-mail was not captured, but e-mail was archived,
yes.
Mr. Chairman, may I say something about this affidavit,
please, if we are going to talk about it?
Mr. Burton. Sure.
Ms. Nolan. It is my understanding that this affidavit was
filed to explain what would be done, what the time and cost
would be involved for searching records regarding this case,
which was with respect to the FBI files matter. The important
or relevant information was how the system was set up, how long
it would take and, as I understand it, they were particularly
thinking about the reconstructed e-mail because the activity
that had occurred with respect to the FBI files was in 1993 and
1994. So, I just want to make that clear what this was about.
This was not an affidavit saying--from Tony Barry saying we
have produced all the e-mail or all e-mail is captured. It was
describing the system for a potential e-mail search.
Mr. Burton. You know, you can give that explanation. But
that is not what the affidavit says, is it? I mean, you've got
the affidavit in front of you. You know what it says. It
doesn't say that.
Mr. Barr. Mr. Chairman, could I indulge you just a moment?
I want to make absolutely certain. Because, as the witness was
offering this explanation for----
Mr. Burton. I yield to the gentleman.
Mr. Barr [continuing]. The false statements in the
affidavit, citing a legal theory that is unfamiliar to me as an
attorney and a former U.S. Attorney, that the context in which
an affidavit is providing--is provided can override that it
might be perjurious--I want to make sure we are talking about
the same affidavit.
We are talking, I believe, about the affidavit signed by
Dave A. Barry on July 9, 1999, in which just above the date and
his signature the statement appears, ``I declare under penalty
of perjury that the foregoing is true and correct.'' Is the
witness talking about another affidavit that has some sort of
limiting language in it?
Mr. Burton. No, she's talking about the same affidavit.
That is the same affidavit, isn't it?
Ms. Nolan. I asked if I could give you some context. I
never said I was providing a legal theory. I asked if I could
give you some context to explain the affidavit. That is what I
just did.
Mr. Burton. Yes, ma'am. We will get back to you--I'll get
back to you with further questions.
I'll yield to Mr. Shays.
Mr. Shays. Good morning. I would like to make reference to
your closing.
You said, Ms. Nolan, in closing, I want to emphasize the
following points: ``the computer glitch is the result of
unintentional human error associated with an extraordinary
electronic records archiving system.''
Even if we agreed with that, you then said, ``No one
attempted to hide responsive information from this committee or
any other investigative body.''
What gives you the capability to make that claim?
Ms. Nolan. I have tried to make clear that I am saying,
based on what I have learned and the people that my office has
talked to, I have found no indication that the counsel's office
was aware that there was an ongoing problem or that anyone
sought to provide such--to hide any such information. And, in
fact, I believe that several of the contractors said that last
week as well.
Mr. Shays. Bottom line is, before you were there these
events took place, and then you make an assumption and tell the
committee that no one attempted to hide responsive information
as far as you know.
Ms. Nolan. It is not an assumption. It is based on the
information I have gathered. And, as I said, I am only able to
report what I have gathered and what I have learned up to date.
Mr. Shays. Would you put exhibits 3 and 4 up, please?
I just want to ask what the second-to-last paragraph means,
where it says, ``For all of the categories of e-mail, including
ongoing Internet e-mail and e-mail between the EOP users, the
system appears to have functioned as intended. Thus, e-mails in
these categories''--and then the parenthesis--``other than
those that were specifically identified by EOP centers as
nonrecords.''
What does that mean?
Ms. Nolan. What part of it, sir? I am sorry.
Mr. Shays. Just the parentheses. What are nonrecords?
Ms. Nolan. When an EOP user sends an e-mail, he or she may
indicate that it is a nonrecord e-mail. It is not a
Presidential record or a Federal record. If I were to send an
e-mail to my mother saying I'll see you next week, that is not
a Presidential record. I can indicate it is a nonrecord.
Mr. Shays. If you bring the letter down, just read up in
the top, it is from Ginnie, I guess, Virginia Apuzzo wrote this
memo. It was to John Podesta who was then deputy chief of
staff. And it was informing--it was informing him of this
problem. And would you just tell me who the signature--that is
Ginnie. Who is Chuck? Is that Charles Ruff?
Ms. Nolan. I believe so, sir.
Mr. Shays. What was the response? Do I make the
assumption--what was the response to the White House counsel's
office once it was informed of the problem?
Ms. Nolan. My understanding is that Mr. Ruff discussed the
matter with Mr. Lindsay, that he understood that it was a
problem with a particular e-mail search, that OA through IS&T
ran a search which it turned out was a duplicate search of the
server, produced those documents, turned out that if there had
been a problem it was fixed. In any event, there were no
documents that hadn't already been found and produced.
Mr. Shays. Now we are talking about the Mail2 configuration
issue. That is a 2 year and 3 month gap. I call it just a
bottomless pit in which e-mails got relatively lost or couldn't
identify. And then letter D configuration I shall use. What is
GRS information technology operations and management records?
What are you implying there? Was there a third problem?
Ms. Nolan. What am I implying where, sir?
Mr. Shays. We have a Mail2. We have a problem with letter
D. Do we have another problem in addition?
Ms. Nolan. Are you referring to the memo or----
Mr. Shays. I am referring to this document right here that
accompanied your presentation.
Ms. Nolan. That is something that a briefing that the
Office of Administration----
Mr. Shays. Were there three problems or two?
Ms. Nolan. I don't believe--that was a reference to how e-
mail records are going to be stored generally throughout
government and archives.
Mr. Shays. The Mail2 configuration is 2 years and 3 months,
and the letter D configuration problem was 7 months. Do I make
an assumption that we are talking about over 246,000 e-mails?
Ms. Nolan. I don't know how many e-mails there are. We know
what they are incoming e-mails from the--from outside the
complex into the EOP.
Mr. Shays. Is it at least 246,000?
Ms. Nolan. I don't know, sir.
Mr. Shays. Would you look at page 6 in your testimony? You
provided us this document here.
Ms. Nolan. I am sorry, what is that?
Mr. Shays. Exhibit 62. OK. It was provided by Northrop
Grumman, and the number--this is Northrop Grumman's document,
and it is 246,000 e-mails.
Let me just go on. I want to know if you or anyone else
discussed this issue with Mr. Ruff and what did he say?
[Exhibit 62 follows:]
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Ms. Nolan. I did discuss it with Mr. Ruff. I also believe
other attorneys in my office discussed it with him.
Mr. Shays. And when did you do that?
Ms. Nolan. Pardon?
Mr. Shays. When?
Ms. Nolan. Attorneys in my office discussed it with Mr.
Ruff, I would guess, about a month ago. I discussed it with him
last week or the week before.
Mr. Shays. Since learning of the e-mail problem in the
summer of 1998, has the White House informed the Justice
Department of the problem?
Ms. Nolan. As far as I am aware, the White House--the White
House counsel's office informed the Justice Department when we
provided information to the Justice Department Campaign Finance
Task Force.
Mr. Shays. And when was that?
Ms. Nolan. In March of this year.
Mr. Shays. Has the White House informed any of the
independent counsels of the problem.
Ms. Nolan. We've had discussions with several independent
counsel offices, yes, sir.
Mr. Shays. And who are they?
Ms. Nolan. Mr. Ray and Mr. Lancaster.
Mr. Shays. And when did you have discussions with them?
Ms. Nolan. February or March of this year.
Mr. Shays. You can't be more precise than that?
Ms. Nolan. I spoke with Mr. Ray's deputy the first week
that I was aware of this problem. I think lawyers in my office
spoke with Mr. Lancaster's office a couple of weeks later. I
don't--I don't have the exact date.
We provided a written explanation to Mr. Ray's office on
March 15th.
Mr. Shays. The e-mail problem was discovered in the summer
of 1998 at the height of the independent counsel's
investigation of the President. The problem was kept from the
independent counsel during his investigation. Similarly, it was
kept from the Congress during the impeachment debate.
Did anyone in the White House think that the e-mail problem
could have real relevance to either the independent counsel's
investigation or the impeachment investigation?
Ms. Nolan. I want to make clear that as far as I know no
one kept the information from anyone in the counsel's office.
The independent counsel's office did not understand that there
was a problem that needed to be reported. The one possible
problem the counsel's office understood, they got a second
search from the Office of Administration, which showed that
everything had been produced, and therefore, Mr. Ruff did not
believe there was anything he needed to notify any
investigative body of.
Mr. Shays. In your statement, you draw conclusions that
everything is all right, and it seems to me that you give
yourself the benefit of the doubt in every instance. So when
you say, when the counsel to the President, Charles Ruff, was
told by OA in 1998 that there were e-mails that may not have
been captured in a previous search because of technical
glitches, he understood that OA would be collecting these e-
mails so that any responsive e-mail that had not been produced
could be produced.
And then you say, thus, as Mr. Ruff understood the
technical problem at the time, he did not think that the error
had any effect on previous searches or that it might affect
future searches of e-mail records. As a result, Mr. Ruff had no
reason to believe there was any need to notify investigative
bodies of this error.
What would have given him the reason to believe that?
Ms. Nolan. I am reporting what Mr. Ruff has told me, and I
think that he did not understand, I believe, what was
communicated to him or what he understood. Whether it was a
disconnect between the technical people, who understood a much
more complex problem, and the lawyers, I cannot tell you
exactly why.
What I can tell you is, what he understood was that there
was a small--there may have been a problem, that it was fixed,
there was no ongoing problem, there had been no documents not
produced.
Mr. Burton. Let me interrupt. We'll get back to you.
I want to give the balance of my time to Mr. LaTourette,
and we'll get back to you, Mr. Shays, in a little bit.
Mr. LaTourette. Thank you, Mr. Chairman.
Good morning, Ms. Nolan, I have a series of questions that
I'll attempt to ask without getting on Mr. Waxman's highlight
reel today.
We had the opportunity to have the hearing last week, and a
number on our first panel told us about the e-mail difficulty,
and also, although there were some conflicts between witnesses
and their recollections, they did pretty universally indicate
that they had been told to keep this in house, quiet, not
spread it around, the problem that there was a mail through the
server, and eventually then the D-mail server.
Did the Office of Administration ever consult, to your
knowledge, with the White House counsel's office about these
instructions, this wasn't something to be discussed with
others?
Ms. Nolan. I have never heard anything that would suggest
that was the case.
Mr. LaTourette. Second, something of the contractors from
N-G last week talked about the threats of going to jail, losing
their jobs, losing their security clearances, all things that
were of obvious concern to them.
From your position at the White House as the White House
counsel, would White House personnel have any basis for making
those statements if, in fact, they were made?
Ms. Nolan. Would White House counsel have----
Mr. LaTourette. No, would White House personnel. In other
words, we are talking about Ms. Callahan in particular.
The allegation was, she said there's a jail cell with your
name waiting on it. Is there any basis in law for that type of
threat if--and I understand that she denied it--but is there
any basis that you're aware of to send someone to jail for, for
instance, talking to their wife about this problem? Is it a
breach of some sort of national security?
Ms. Nolan. I am not aware of any.
Mr. LaTourette. And I'm wondering now, as I understand the
explanation that you've received from Mr. Ruff, I guess he had
a meeting with Mr. Lindsay, and you're saying that Mr. Lindsay
did not adequately explain it to Mr. Ruff, or explain it to Mr.
Ruff in a way that he understood that this was a two-part
process--one, that the stuff wasn't being captured and once you
fix that problem you had to restore the stuff that hadn't been
captured for over 2 years.
Is that what Mr. Ruff is telling you and, hence, us?
Ms. Nolan. What Mr. Ruff told me was that he understood
there was a problem, but it was a problem with one search, a
search. He did not understand that there was a more systemic
problem.
Mr. LaTourette. Last week Mr. Lindsay was here. He pretty
clearly understands it. He knows that it was a two-part thing,
one, that e-mails coming into the White House weren't captured.
He worked real hard, and I think spent $600,000 to fix that
problem. He also knew and continues to know that there is this
whole body of e-mails, 100,000, 200---it doesn't matter how
many there are--that haven't been loaded onto the ARMs system.
Are you saying Mr. Ruff of the White House counsel's office
had no comprehension that there's a series of e-mails out there
somewhere that haven't been reconstructed to this day?
Ms. Nolan. I know it now.
Mr. LaTourette. But what about Mr. Ruff, during the time we
were asking him for documents? He's saying he just doesn't
know?
Ms. Nolan. That's right.
Mr. LaTourette. My historical recollection is that Mr.
Ruff, I think was a prosecutor during Watergate, and I think he
knew a lot about tape records and 18\1/2\-minute gaps, but
maybe hasn't sort of fast-forwarded to the computer age. And
that brings me to the Vice President of the United States.
Your statement also talks about the fact that the Office of
the Vice President wasn't typed into the ARMS system. Is that
right?
Ms. Nolan. That's right. The Office of the Vice President
was not fully tied into the ARMS system.
Mr. LaTourette. I'm hard to provoke. I'm one of the more
mild-mannered guys on my side of the aisle, but there was an
article the other day in the Washington Times about the Vice
President was interviewed about this, and his quote was that,
at first it says--the AP report, it says he almost dared the
Republicans to continue their investigations. ``I hope they
spend a lot of time and energy on this,'' Mr. Gore said to the
AP, with a confident grin as he leaned back in his armchair.
That's, I think, a bad way for the guy that wants to be the
President of the United States to sort of further the cause of
campaign finance reform and get information before the public.
But you mentioned in your statement that you gave us last
week, when you didn't come, you thought there were 28 users;
now you know that there are only 24 in all, but three were
created before 1997.
Who were the three created before 1997 that aren't being
captured by the ARMS system today?
Ms. Nolan. They are being captured now. As of this week
they are being captured.
Mr. LaTourette. Including incoming e-mail?
Ms. Nolan. No, the incoming e-mails are not being captured
for the OVP.
Mr. LaTourette. Who are three?
Ms. Nolan. I don't know the three accounts. I'm sorry.
Mr. LaTourette. So you were able to identify that there are
three people that were created before 1997, but you don't----
Ms. Nolan. There were--I think it is 21 created before 1997
and 3 after 1997.
Mr. LaTourette. OK. And still today--you know when you're
talking about the testament, maybe we can get this thing fixed
in 6 months, does that include the Office of the Vice
President, or does that just include the MAIL2 and D servers?
Ms. Nolan. I think it includes the Office of the Vice
President, but I'll have to check to make sure.
Mr. LaTourette. And is it your understanding from the
information that you have collected that the problem with the
Vice President's server just came to somebody's attention last
week?
Ms. Nolan. I think it was the week before last week. I
think my statement said last week.
Mr. LaTourette. But a couple of weeks ago?
Ms. Nolan. A couple of weeks ago, yes.
Mr. LaTourette. So it's the White House counsel's testimony
through you. And I know you're new at it, so we're talking
about a whole range of White House counsels, but the
institutional knowledge within the White House counsel's office
is that the Vice President's Office was not then tied up to the
ARMS system, since it was instituted at the Armstrong case, I
guess is how that came about, the ARMS system. Is that right?
Ms. Nolan. The ARMS system was developed after the
Armstrong case. Of course, the Armstrong case dealt only with
Federal records. These are Presidential records we are talking
about now, but they were meant to be made part of the ARMS
system, right.
Mr. LaTourette. But nobody noticed--and I understand in
your testimony that Senator Thompson apparently got a couple of
e-mails from the Vice President's Office----
Ms. Nolan. He got some. I don't know how many.
Mr. LaTourette. But nobody said, hey, you know what, the
guy that invented the Internet and his staff don't seem to be
doing a lot of e-mailing; so when we get these records
production requests from, be it our committee or Senator
Thompson's committee, there aren't any e-mails from the Vice
President of the United States? Nobody picked up on that?
Ms. Nolan. You know, I don't know how many there were. I
don't know how many were produced. So I don't know the answer
to that, whether somebody would have noticed the numbers. And I
do want to make clear here that it seems certainly from the
testimony I'm aware of from last week that the technical
people, the Northrop Grumman people, knew who was and was not
on the ARMS system, but the lawyers doing the searches did not.
Mr. LaTourette. Maybe the explanation for why nobody
noticed the fact that there weren't any e-mails from the Vice
President during this time period, in that same interview with
the AP, he was asked how much he used his e-mail during the
1996 reelection campaign, and he said, ``Didn't.'' He was
pressed to go on, and he said just, ``Didn't.'' So maybe we're
looking for stuff that isn't there, because again the Vice
President of the United States indicated that he didn't send
any e-mails in 1996. So when we reconstruct his office, we are
not going to find them anyway.
Just as the yellow light goes on, the White House counsel's
position is that, as far as you're concerned, or Mr. Ruff was
concerned, there was no delay in reconstructing these tapes
because you didn't think there was any need to because you
thought the problem was fixed, the White House counsel thought
the problem was fixed, and if not fixed, everything that came
up in this manual search by Mr. Haas was duplicative of stuff
you had sent us before.
So no big deal was the position at that time; it wasn't a
problem?
Ms. Nolan. Yeah. I don't think ``no big deal'' is the right
characterization. I don't think that the counsel's office
understood there was any problem, not that it minimized it.
Mr. LaTourette. Thank you very much. Thank you, Mr.
Chairman.
Mr. Burton. My time has expired.
Mr. Waxman.
Mr. Waxman. Thank you. Just to followup on a point Mr.
LaTourette asked you about, and that was how many e-mails were
produced from the White House regarding Senator Gore's--Vice
President Gore--excuse me, how many e-mails were produced from
the White House to Senator Thompson's investigation about Vice
President Gore. I think you should be able to get that
information, and I wonder if you can ask somebody to get that
information to us perhaps before the end of today's hearing?
Ms. Nolan. I will certainly try to do that.
May I say something about that, too?
Mr. Waxman. Yes.
Ms. Nolan. Which is that there are a number of ways that
OVP e-mail can be produced or could have been produced by
searches of individual servers, because they had been forwarded
to an ARMS-managed account, because someone had retained a hard
copy. So I just wanted to make that clear in response to Mr.
LaTourette's question about the Vice President e-mail--Office
of Vice President e-mail.
Mr. Waxman. Well, I appreciate what you are saying, but it
is something within your control, and I think you can certainly
produce it for us.
Ms. Nolan. Certainly. We will try to get the number for you
so that we know what it is.
Mr. Waxman. Now, I appreciate both of you being here, and I
think that you can help to clear up one of the central
questions that has been raised today, which is, what did the
White House know about these e-mails and what did they do about
them? The panel from Northrop, computer experts who testified
last week, told us that the technical problems that prevented
e-mails from being properly stored were the result of
accidental mistakes made by government contractors, and I'd
like to ask you about this.
Ms. Nolan, were the problems with the White House e-mail
system the result of technical computer glitches or were they
intentional problems?
Ms. Nolan. It is my understanding that everyone agrees they
were technical glitches.
Mr. Waxman. Do you have any knowledge that the problems
were the result of a deliberate effort to hide e-mail from
Congress or from other investigative bodies?
Ms. Nolan. I have no such knowledge.
Mr. Waxman. I know that this committee has made numerous
requests to the White House for documents relating to the
campaign finance investigation. The White House has produced
over 90,000 pages of documents concerning campaign finance
inquiries from this committee alone.
What resources has the White House devoted to responding to
requests from this committee?
Ms. Nolan. The White House, to respond to requests from
this committee, has used a number of lawyers, the resources of
lawyers, the resources of paralegals, the IS&T resources in
doing the ARMS searches. The Office of Records and Management
does searches for us. We really call in a number of components
of the Executive Office of the President. Of course, we send a
directive to people within the complex to search their own
files.
So I don't have a number, but it's an extensive amount of
resources in order to produce documents, videotapes,
audiotapes, provide witnesses.
Mr. Waxman. Well, let me point out to you that I was
curious about how much money might have been spent on this
whole inquiry. You've given us 90,000 pages of documents, just
to this committee, and there are other committees and other
investigators. So in 1998 I asked the General Accounting Office
to examine the cost to Federal agencies of congressional
campaign finance inquiries. GAO asked executive agencies to
provide information on campaign finance inquiries received from
October 1, 1996, to March 31, 1998, and according to the
responses to this GAO survey, White House employees had spent
over 55,000 hours responding to congressional campaign finance
inquiries at a personnel cost of over $2 million. That's the
equivalent of 25 White House employees doing nothing for a year
except responding to campaign finance inquiries, and I'd like
to enter this GAO report that I have had prepared into the
record, and a related minority staff report on the cost of
congressional campaign finance investigations as well.
Mr. Chairman, I ask unanimous consent to place this in the
record.
Mr. Barr [presiding]. And what is that?
Mr. Waxman. This is a minority staff report as well as the
General Accounting Office report on the amount of money spent
in responding to these investigatory inquiries.
Mr. Barr. Without objection.
[The information referred to follows:]
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Mr. Waxman. Did the Executive Office of the President
produce e-mail records to this committee during that campaign
finance investigation?
Ms. Nolan. Yes, sir, they did.
Mr. Waxman. How many total pages of e-mails did the
Executive Office of the President produce to this committee in
response to the campaign finance inquiries?
Ms. Nolan. My understanding is that it was 7,700 e-mails,
pages of e-mails.
Mr. Waxman. Did the White House ever intentionally withhold
any e-mails?
Ms. Nolan. I am not aware that the White House ever
intentionally withheld any responsive e-mails.
Mr. Waxman. I understand that in responding to the request
for documents, the White House typically searches this ARMS
computer archive for responsive material. Is that the only kind
of search that's done?
Ms. Nolan. No. The directive that goes out to EOP employees
asks them to search their own records, whether in paper form,
computer form or any other form. So individuals should be
searching their own servers on their PCs.
Mr. Waxman. So even if a document is not on the ARMS
system, it still could be found by searching an individual
computer account; is that right?
Ms. Nolan. Yes, and that is apparently what happened. When
the second search was done in June 1998 and the White House
compared the documents from the server, it turned out that
people who had searched their own records had already produced
those documents.
Mr. Waxman. Is it possible that some of the e-mails that
have supposedly gone missing because of the technical problems
with the ARMS retrieval system were nonetheless produced to
this committee and others requesting documents from the White
House?
Ms. Nolan. Yes, yes.
Mr. Waxman. In fact, Ms. Nolan, if I understand you
correctly, all this talk about missing e-mails is a little
misleading because it overlooks the fact that while certain e-
mails may not have been properly archived in the ARMS backup
system, they're not necessarily missing; is that right?
Ms. Nolan. They're not necessarily missing. They may have
already been produced. They may be on the backup tapes.
Mr. Waxman. I'd like to now turn to the chain of events
that followed the discovery of a problem with the MAIL2 server
in 1998.
Mr. Lindsay testified that after he was told about the
MAIL2 problem, he notified the White House counsel's office,
your office. I know that you weren't there at that time, but
based on what you have learned, can you tell me what the White
House counsel's office was told about the MAIL2 problem?
Ms. Nolan. What I understand is that a problem was
described to Charles Ruff, then counsel to the President; that
his understanding of the problem was that there had been a
problem with a search, a possible problem with a search. He
informs me that he did not understand the--that a larger
problem, such as the MAIL2 problem, or its nature or its scope,
existed; and it appears that either that was not fully
communicated or there was some disconnect. I don't know
precisely what was said.
Mr. Waxman. At last week's hearing, Mr. Lindsay told us
about a test search that was then conducted to figure out the
extent of the MAIL2 problem.
Can you tell us why that search was requested?
Ms. Nolan. I believe, sir, that that refers to the second
search that was done for the documents that might have been
missing from the particular search that Mr. Ruff understood was
problematic.
Mr. Waxman. And what were the results of that search?
Ms. Nolan. The result of that search was that all the e-
mails found in the second search had already been provided to
the counsel's office and produced.
Mr. Waxman. In other words, it's your testimony that the
documents that were turned up in that test were turned over or
were they not turned over?
Ms. Nolan. It is my testimony, from my understanding, that
they were produced, sir; they were turned over. They already
had been.
Mr. Waxman. Now, just to have a further understanding,
these are e-mails that related to Monica Lewinsky; is that
correct?
Ms. Nolan. That is right. That is my understanding.
Mr. Waxman. So if I understand you correctly then, the e-
mail documents that were found in the test search were
duplicative of the e-mails that had been previously turned
over; so when they did the test search, they found the e-mails
about Monica Lewinsky, and they found that these e-mails had
already been turned over?
Ms. Nolan. That's correct, sir.
Mr. Waxman. So, in your view, did it appear that there was
not a problem?
Ms. Nolan. My understanding is that's exactly what--how Mr.
Ruff understood it, that either there had been a problem and it
was fixed, or there had not been a problem; but there had not
in fact been--there were no new documents found that indicated
that the production had not been fully done.
Mr. Waxman. Yesterday's Washington Times ran an article
that stated that the White House possesses a, ``previously
undisclosed computer disk containing e-mails by Monica Lewinsky
that were sought under subpoena by a Federal grand jury and
three congressional committees,'' but never turned over. The
article stated that this disk, known as a zip disk, was given
to Northrop Grumman's counsel, who passed it on to the
Executive Office of the President.
Are you aware of a zip disk that was recently provided to
the Executive Office of the President by Northrop Grumman's
counsel?
Ms. Nolan. Yes. This is the--as I understand it, this is
the record of Mr. Haas' F drive, and he apparently was the one
who did this search, this second search that we were referring
to. Mr. Haas kept that, the record of that search on his F
drive, and that is--that's the same search. No previously
undisclosed, no nonproduced e-mails at all.
Mr. Waxman. So these are the same. This zip disk contains
the same e-mails that resulted from that search in June 1998
that the White House had previously turned over to the various
investigators; is that correct?
Ms. Nolan. The reference to these previously undisclosed e-
mails is wrong. They are, as far as I know, they are the same
ones that were--had already been produced.
Mr. Waxman. Before this zip disk was handed over to the
Executive Office of the President, did you know that it even
existed?
Ms. Nolan. No, sir.
Mr. Waxman. And what do you know about the origin of this
disk, just to have that on the record?
Ms. Nolan. My understanding is that a couple of weeks ago,
I am not sure of the exact date, that Mr. Haas made a copy of
what was on his F drive; and he then provided it to Northrop
Grumman counsel, and Northrop Grumman counsel provided it to
us.
Mr. Waxman. I'm smiling because it looked like we had
different versions of some of the questions, but I think you've
made the point. And the essential point, as I understand it, is
that what was on this zip disk was nothing more than the e-
mails you had already turned over and therefore the statement
in the Washington Times that the disk, zip disk, had e-mails
that had not been turned over is not an accurate statement?
Ms. Nolan. I am not aware of any cache of previously
undisclosed e-mails on any disk.
Mr. Waxman. At last Thursday's hearing we heard differing
testimony about the content of the e-mails that were not
captured by the ARMS as a result of this MAIL2 glitch. As you
saw in that video clip I showed during my opening statement,
Betty Lambuth, who was former manager of Northrop Grumman Lotus
notes team, stated that the e-mails concerned a number of
different investigations. She said she learned this from Robert
Haas, who was a member of Ms. Lambuth's Lotus notes team. On
the other hand, Mr. Haas testified he did not know the content
of these e-mails except for two relating to Monica Lewinsky.
Ms. Nolan, based on your understanding of the e-mail
problem, who do you believe is right, if you have an opinion on
this, between Ms. Lambuth and Mr. Haas?
Ms. Nolan. Mr. Haas' testimony is consistent with what I
understand about what the previous search was, which is that it
was for e-mails related to the Monica Lewinsky investigation.
Mr. Waxman. Ms. Nolan, why wasn't Congress notified in 1998
when the White House e-mail problems were discovered?
Ms. Nolan. Mr. Waxman, the e-mail problem that Mr. Ruff
understood might have occurred, he did not understand to have
any effect on document productions; and I think that anyone who
knows Charles Ruff knows that if he thought that there were a
large number of documents that he had said had been produced
had not been produced, he would have done something about it.
Mr. Waxman. Why didn't you, when you were already in the
White House counsel's office in January of this year and you
were briefed on this issue, why didn't you notify Congress
yourself?
Ms. Nolan. When I was briefed on the issue, it was part of
a larger prebriefing for a post-transition Presidential records
meeting. I had no understanding at that time that there were
ongoing problems or effects on searches. As soon as I learned
of the allegations that there were, you know, we started to
look at it.
Mr. Waxman. I want to yield some of my time to Mr.
Cummings.
Mr. Cummings. Thank you very much.
Ms. Nolan, and Mr. Raben--thank you for being here.
Government service is not always easy, and I just want to ask
you just a few questions and just kind of pick up where Mr.
Waxman left off.
In November 1998, a decision was made to fix the MAIL2
problem prospectively so that all incoming external e-mails
would be properly sent to ARMS. When this fix was made in
November 1998, what happened to all of those unrecorded e-mail
records that were on the server at the time?
Ms. Nolan. It's my understanding that a backup tape was
made of the server on the day that they restored the ARMS
system on a going-forward basis, and those backup tapes are
with--in our security office now.
Mr. Cummings. Now, a second problem was discovered in April
1999 that prevented incoming e-mails to users of the first name
beginning with the letter D from being properly archived. This
problem was apparently caused by programming errors made by
contractors in October 1998.
When this second glitch was fixed in May 1999, what
happened to all of those unrecorded e-mail records that were on
the server at that time?
Ms. Nolan. Again, a backup tape was made, snapshot of the
system on the day that the ARMS system was fixed on a going-
forward basis, and those tapes are also with our security
office.
Mr. Cummings. So to the best of your knowledge today, has
the Office of Administration taken steps to protect those
tapes?
Ms. Nolan. Yes, sir.
Mr. Cummings. How so?
Ms. Nolan. The Office of Administration has placed the
backup tapes with Charles Easley, who is the Executive Office
of the President's security officer, and he has--has those
tapes, I believe, in a safe in his office.
Mr. Cummings. Now, Ms. Nolan, can you tell me about what
the White House is doing to reconstruct the nonarchived e-
mails?
Ms. Nolan. The Office of Administration has been working to
get a contractor which--and it signed a contract yesterday with
an outside contractor to restore the backup tapes, and we
particularly--I particularly asked that we make sure when we
were doing this that--that we go in two paths so that we get
the backup tapes searchable as quickly as possible and we get
the backup tapes restored to ARMS, but that we not delay being
able to search the backup tapes by getting them on ARMS first.
So we're working on two paths to try to get the backup
tapes searchable as quickly as possible.
Mr. Cummings. Now, where are the backup tapes that are
going to be needed to reconstruct the nonarchived e-mails?
Ms. Nolan. Those are also with Security Officer Easley.
Mr. Cummings. Now when these backup tapes are put in an
easily searchable format, does EOP intend to perform keyword
searches of these records to comply with this committee's
subpoenas?
Ms. Nolan. Yes. Yes, sir.
Mr. Cummings. Can you explain the problem that prevented e-
mail in the Office of the Vice President from being archived?
Ms. Nolan. I don't know yet exactly how it happened that e-
mail from the Vice President's Office was not fully put on
ARMS. What I do know is that the Vice President's Office was on
a different e-mail system from the White House Office and other
components of the Executive Office of the President apparently
at the time that ARMS was started in 1994, and that those
accounts were not set up to be managed by ARMS at that time.
Mr. Cummings. Now, you stated that the Executive Office of
the President had produced 7,700 pages of e-mails, is that
correct, to this committee?
Ms. Nolan. To this committee in the campaign finance
investigation alone.
Mr. Cummings. Did those records include e-mails from the
Office of the Vice President?
Ms. Nolan. Yes, I believe they did.
Mr. Cummings. Does the fact that the Vice President's e-
mails have not been archived represent a deliberate effort to
hide those documents from Congress and other investigative
bodies?
Ms. Nolan. I have seen no indication that anyone was trying
to hide these documents from congressional investigative bodies
or any other investigative bodies.
Mr. Cummings. Now, when you made your statement early on,
just the early part of your presentation here, you made it
clear that you are discovering information as you go along; is
that right?
Ms. Nolan. Yes, sir.
Mr. Cummings. Do you have any anticipation as to many
changes taking place with regard to statements you have already
made to us or things you think you may find out?
Ms. Nolan. I don't know.
I want to be clear. I don't know what I may find out later,
but I think that what's important to know now is, we--we have
the backup tapes. We have--are secured with our security
officer. We have an outside contractor on board to try to get
these restored and searchable as quickly as possible. Until we
do that, I can't say any more.
Mr. Cummings. Thank you, and I want to thank the gentleman
for yielding.
I yield back.
Mr. Waxman. Thank you very much, Mr. Cummings.
Mr. Raben, I want to ask you about the criticism the
Attorney General has been receiving from Chairman Burton. When
he originally called this hearing on March 8th, he wrote a
letter to the Attorney General, and was pretty harsh in his
criticism because he criticized the Attorney General for not
investigating this e-mail problem. And, in fact, he was pretty
strong about it. He said the appearance created by this failure
to investigate seems to indicate that there's no interest, no
intention of pursuing a vigorous investigation of the White
House. And so the Attorney General was being criticized for not
investigating.
Now the Justice Department, headed by the Attorney General,
has announced an investigation, and the criticism by our
chairman is that instead of applauding this investigation, he
wrote an even stronger letter to the Attorney General on March
27 in which he said that, ``Because you and your staff are in
charge, the proposed investigation is fatally flawed.''
So the chairman is saying on the one hand, you didn't
investigate; when you do, it's flawed, and he wants an
independent counsel to take over. But it doesn't end there,
because yesterday, March 29th, the chairman, in a letter to
Judge Royce Lamberth, wrote, ``Recent efforts by the Attorney
General to control this investigation appear to be nothing more
than a ploy to retain control over matters that will ultimately
focus on how the Justice Department helped the White House in
its efforts to refrain from producing documents to Congress and
various independent counsels.''
So to summarize what I understand has happened, on March
8th, the Justice Department is criticized for not investigating
the e-mails; on March 27th, the chairman decides that the
Justice Department investigation that he requested is fatally
flawed; and now on March 29th, we learn that the Justice
Department's investigation is not only flawed, it's part of
some huge attempt at cover-up.
So, Mr. Raben, it seems to me that the Attorney General is
damned if she does and damned if she doesn't; whatever action
she takes, the chairman finds grounds for criticism.
Ms. Nolan, let me just see if I can summarize where I
understand some people are taking this investigation.
Some people have a theory. They acknowledge that this
problem with the ARMS retrieval system was flawed, and they
recognize that the mistake was not because the White House
caused it to be flawed, but when the White House found out that
it was flawed and not capturing all the various e-mails, they
tried to cover it up and threatened people who might make it
public, particularly personnel who knew about the failure of
the ARMS system to retrieve the e-mails.
Now, of course, if this theory is true, this amounts to
obstruction of justice.
As I understand it, the White House counsel, Charles Ruff,
when he heard about this problem, asked that a test be done to
see what was happening with these e-mails that were not on the
centralized ARMS system, and used Monica Lewinsky as an example
topic--obviously a pertinent one at the time--for the
investigation; and when this test was done, he found out that
the e-mails that were not on the ARMS system apparently were
picked up because they were retrieved from the individual
computers. And when they were retrieved from the individual
computers and he found that they were duplicative of those that
were already turned over to the investigators, it seems like he
concluded there was no real-world problem; that while the
centralized system wasn't getting the e-mails, the search of
the individual computers seemed to be picking up these e-mails.
So we're talking about Mr. Ruff. I mean, he's the only one;
if there's this cover-up, if there's this conspiracy, if
there's a threat to witnesses that might make this public, he
would be the one in charge of this whole thing. But he went out
and tried to make sure that they were getting all the e-mails
to the appropriate investigative agencies, and he did this test
to be sure that that was the truth, or at least, as he
understood it, that they weren't leaving anything out.
We had testimony last week from Mr. Spriggs and others that
it was their understanding the White House wasn't trying to
cover-up the problem. They were trying to correct the problem.
There seems to be some concern that Northrop Grumman might say,
well, they're going to need more money to correct the problem,
but the White House wanted the problem corrected.
Is this a summary of what you understand to be the facts in
this case?
Ms. Nolan. Let me clarify one thing where I--my
understanding differs from what you just summarized, which is
that--my understanding is that Mr. Ruff understood the problem
to be related to this particular search. So he wasn't doing a
test to see if the system worked generally, but rather was
doing a second search for the particular search that there may
have been a problem for. And when the files came back, which
showed that, in fact, everything had been captured, it's my
understanding that Mr. Ruff believed there had been no problem,
there was no ongoing problem.
Mr. Waxman. Well, let me just say that I've worked with
many people in the course of the time I've been in public
office, and beforehand, and I am very careful to say--to vouch
for anybody, but I've worked with Mr. Ruff, and I know him to
be a man of integrity and principle; and in my mind, there's
never been any question about his honesty and integrity, and I
cannot believe this theory that would hold him responsible for
some kind of cover-up and threatening people and all the
other--other facts that would have to fit in, be shoe-horned
into this theory that would amount to a scandal.
And if this is all there is, if this is what this whole
scandal is all about, I must say I am not very impressed that
we have found a new scandal to wave our arms about and to carry
on as if there's been something intentionally done to frustrate
justice.
I thank both of you very much for your testimony and yield
back the balance of my time.
Mr. Burton. Thank you, Mr. Waxman. I understand Mr. Raben
needs a brief break, and Ms. Nolan, I think we will allow both
of you to have 10 minutes, if that's all right with you for a
break; and then we'll get back to the questioning.
So we stand in recess for 10 minutes.
[Recess.]
Mr. Burton. The committee will reconvene.
I apologize for the length of our tour to the floor, but,
unfortunately, there were a number of votes.
I will recognize the gentleman from Florida, Mr. Mica, for
5 minutes.
Mr. Mica. I thank the chairman, and I do have a question
for Ms. Nolan.
First of all, you have talked about the suddenly
reappearing Haas disk, zip disk I guess it's referred to, tapes
in your testimony to us, your statement to us. And that
contains--was it 500 records or e-mails?
Ms. Nolan. Sir, I don't know how many it contains.
Mr. Mica. You also sort of indicated for the other side
that those had matched what was given to the--had been possibly
given to the independent counsel or to investigators. Was that
correct or were you told that?
Ms. Nolan. I was told that what--what Mr. Haas did was a
second search in June or July, I am not sure, summer of 1998,
that that search produced--he did a second search of the
server--and that search produced e-mails which were provided to
the counsel's office, which checked and found they were
duplicative of e-mails already provided.
Mr. Mica. But you're not aware--you've not seen those 500
records?
Ms. Nolan. I have not yet, sir.
Mr. Mica. So you don't know whether they match? You don't
know whether, in fact, that that information was the same that
has been provided to the investigative body that required it?
Ms. Nolan. I know that Mr. Haas has described what--what he
saved as the search that we looked at.
Mr. Mica. You also indicated that now there are an
additional number of back-up tapes, is that correct? Is it 620
some back-up tapes.
Ms. Nolan. I think, sir, I'm not sure of the exact number.
There are about 3,400 for the EOP all together. There are about
625 for the Vice President's Office.
Mr. Mica. As opposed to a lower number that had previously
been disclosed?
Ms. Nolan. Last week I had been told that there were about
550 Vice President's back-up tapes.
Mr. Mica. Now, it's 625. So there's two bodies of
information, one is the White House and one is the Vice
President?
Ms. Nolan. One is the Executive Office of the President,
but some of those--some of the Vice President's ones were with
the EOP ones.
Mr. Mica. We had heard from various witnesses or sources
that there was information on the impeachment, campaign
finance, foreign campaign contributions, Filegate. I heard also
selling of trade mission seats and other things that were under
investigation by various panels or special counsels. You're not
aware then what's on any of these tapes? There may, in fact, be
a large number of files or records that have not been turned
over; is that correct?
Ms. Nolan. I don't know what's on the tapes. What I do know
is that we know that it's incoming e-mail during those certain
periods for the EOP and the e-mail for the OVP that we're going
to have to reconstruct and then we'll search for the e-mails.
Mr. Mica. And, really, all you know about Mr. Ruff has said
of his involvement--you said he knew that there was a technical
problem, right?
Ms. Nolan. That's my understanding, yes.
Mr. Mica. You never got into the point that Mr. Ruff might
have been told by Mr. Lindsay that not only was there a
technical problem but there was the problem that we had
described to us that people were talking in the hallways about
what was on the tapes and that needed to be hushed up?
Ms. Nolan. No. I asked Mr. Ruff if he had heard anything
like that. He had not.
Mr. Mica. You asked him specifically that question?
Ms. Nolan. Yes, I did.
Mr. Mica. And he told you he was only aware of the
technical problem?
Ms. Nolan. That's right.
Mr. Mica. What is DOJ doing as far as investigation? Have
they requested any files or information? Does--will DOJ have
access before anyone else in their investigation of the
materials that you have?
Ms. Nolan. We have received a letter from the Campaign
Finance Task Force, as we did from other investigative bodies,
asking us to explain the problem. We have not made any
arrangements with any investigative body about access or
priority of access.
Mr. Mica. Has DOJ met with anyone, with you or others,
regarding this investigation?
Ms. Nolan. No, sir.
Mr. Mica. They haven't to date?
Ms. Nolan. No, that's correct.
Mr. Mica. DOJ, who's in charge of your investigation?
Mr. Raben. Who's in charge of the investigation? The
Campaign Finance Task Force initiated the investigation.
Mr. Mica. And even though this may go beyond that, they're
still charged with that?
Mr. Raben. They initiated the inquiry.
Mr. Mica. Do you know what steps they have taken? Have they
requested access to any of the material that's in the
possession of the White House at this time?
Mr. Raben. I don't have personal knowledge of all the steps
that they have taken, sir.
Mr. Burton. Does the gentleman have any more real quick
questions? I know he has to catch a plane.
Mr. Mica. Well, what--just--could you provide just,
finally, some background about the head of security that's now
in charge of the tapes, Ms. Nolan?
Ms. Nolan. Charles Easley is the EOP security officer. I
know that he's a long-time government officer who has
responsibility for reviewing background investigations and
making determinations, security determinations within the
complex.
Mr. Mica. Finally, has your office notified the
congressional committees or the independent counsel or any of
the other bodies who had requested information under subpoena
that there may be existing files or information that has now
been uncovered? Has that been done?
Ms. Nolan. We've had a communication with a number of
independent counsels and congressional committees. I am still
trying to make sure that we gather information about every
request that came in during that period.
Mr. Mica. Would you provide the committee just for the
record a copy of those communications so we that can see who
has been noticed that you have now uncovered some of this
material that may have been subpoenaed some 3, 4 years ago?
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Mr. Mica. Thank you, Mr. Chairman.
Mr. Burton. Thank you and have a safe trip home.
Before I yield to Mr. Barr let me just real quickly ask one
question.
Ms. Sheryl Hall has indicated that she was told by Mr.
Haas, and Mr. Haas denied this at our hearing, but she was told
that he had information on his zip disk that there were trips
on these trade missions that were offered for campaign
contributions and also that there was information on these zip
disks dealing with the Vice President's soliciting campaign
funds. Now, Mr. Haas said before the committee that he had no
zip disk, that there was nothing at his home, and now we find
that he does--did have a zip disk, and so I wonder if you have
taken--I mean, you indicated that there was some information
that you had knowledge of on the zip disks. Do you have
knowledge of everything that was on the zip disk?
Ms. Nolan. Sir, Mr. Haas, as I understand it, made a copy
of his F drive, of his server drive on the computer----
Mr. Burton. Right, right.
Ms. Nolan [continuing]. Within the past couple of weeks.
Mr. Burton. Right.
Ms. Nolan. That that information he has said was what he
did when he did the search for Lewinsky e-mails, and he has
said there is no other information.
Mr. Burton. But do you have knowledge of what was on it?
Ms. Nolan. I don't.
Mr. Burton. What has happened to that zip disk?
Ms. Nolan. The zip disk, sir, was given to Mr. Easley. My
understanding is that when they opened the zip disk or tried to
read some of the zip disk material they couldn't read all of
it. They went back to Mr. Haas's F drive, made another zip
disk. Mr. Easley has that. They're going to try to open it and
find the files.
Mr. Burton. I think we'll issue a subpoena for both the
original zip disk and the one that was remade off of his hard
drive. I think it's extremely important that we have that.
One other question. You said that the e-mail system had
something in it that would block out e-mails from a mother or a
father or something like that. Did you say that?
Ms. Nolan. What I said, sir, is that when a user sends an
e-mail, you can--I can indicate if I'm sending an e-mail that
it's nonrecord, that it's not a record, not a Presidential
record.
Mr. Burton. Can a person from the outside?
Ms. Nolan. A person from the outside cannot do that.
Mr. Burton. But a person from the inside can.
Ms. Nolan. A person from the inside can.
Mr. Burton. Could somebody from the inside, if they had
gotten an e-mail from a friend like John Huang or Charlie Trie
or Mark Middleton or Maria Hsia, could they have blocked that
out?
Ms. Nolan. Well, they can't block out. It still gets sent
to ARMS. My understanding is that there is some kind of regular
review to see that things indicated as nonrecords are in fact
nonrecords.
Mr. Burton. What does that mean?
Ms. Nolan. Well, this is what I understand, sir. That
everything--the way that ARMS works is that when an EOP user
who has an ARMS-managed e-mail account sends an e-mail, it is
always blind-copied, BCC'd, to ARMS, to records management.
Mr. Burton. We're talking about an e-mail from the outside
coming in.
Ms. Nolan. An e-mail from the outside. The e-mails from the
outside. Because they can't be BCC'd to ARMS when they're
written, they're scanned as the server is scanned about every--
I think it's several times a minute.
Mr. Burton. I know. But the point is, you said they can
block----
Ms. Nolan. You can't block out any incoming e-mails.
Mr. Burton. So it would automatically go to the ARMS?
Ms. Nolan. They would go to ARMS, and you don't block out
ones you write. You simply indicate that they're nonrecords.
Mr. Burton. I'm only interested in the ones coming in.
Ms. Nolan. The ones coming in, no.
Mr. Burton. All of those would be on the ARMS system----
Ms. Nolan. If they were captured.
Mr. Burton. Why would they not be captured?
Ms. Nolan. Well, during the MAIL2 and letter D problem,
that is exactly the problem. That incoming e-mail to the
complex for certain accounts that were coded as MAIL2 all caps,
instead of MAIL2 upper and lower case, or those whose, the
recipient, the user, first letter of their account began with D
were not properly scanned by ARMS so they were not put in ARMS.
That's what we'll be searching for on the back-up tapes.
Mr. Burton. I am not sure I understand. Is there some way--
any way that an incoming e-mail could be blocked by the
receiver of the e-mail so that it would not be recorded on any
other system, any other system?
Ms. Nolan. Not that I'm aware of, sir.
Mr. Burton. You can't make a categorical statement? You're
just saying not that you're aware of?
Ms. Nolan. I am not aware of any way.
Mr. Burton. I guess when you were talking earlier you said
that there was some way that if somebody got an e-mail from a
relative or something----
Ms. Nolan. No. I'm sorry, sir, if I was at all confusing
about this. What I was saying was if I write an e-mail----
Mr. Burton. Outgoing.
Ms. Nolan. Outgoing, I can indicate that it's a nonrecord.
Mr. Burton. I see. But if it's an incoming?
Ms. Nolan. I can't do anything with it.
Mr. Burton. It's definitely going to be recorded?
Ms. Nolan. Unless of course you have the scanning problems
that occurred in the MAIL2 and letter D problem.
Mr. Burton. Well, if you find any additional information on
that, I'd like to have that.
Ms. Nolan. Certainly.
Mr. Burton. Mr. Barr.
Mr. Barr. Yes. Thank you.
Ms. Nolan, the ARMS system, that is not just some program
that somebody decided they wanted to have. It's a very
important program, is it not?
Ms. Nolan. Sir, it is an important program.
Mr. Barr. And it provides capability, does it not, for the
White House to comply with various Federal laws that require
the retention and retrievability of e-mails, does it not?
Ms. Nolan. ARMS was set up in order for the Executive
Office of the President to comply with the Federal Records Act.
It also is an effective tool for complying with the
Presidential Records Act, but the Presidential Records Act
doesn't require that e-mail be saved in any particular form, as
far as I know.
Mr. Barr. But it does require them to be saved and be in a
form that is retrievable, is that not correct, pursuant, for
example, to the Armstrong decision in 1993?
Ms. Nolan. Well, of course, the Armstrong decision
explicitly--the court explicitly said that it was not applying
that decision to Presidential records, only to Federal records.
Mr. Barr. Are Presidential records not Federal records?
Ms. Nolan. The law provides for two kinds of records,
Federal records, which are most agency records, and
Presidential records, which are those who assist and advise the
President, the White House Office. Vice Presidential records
are treated like Presidential records. Some of the other units
in the EOP, like the Office of Management and Budget, are
mostly Federal records, not Presidential records.
Mr. Barr. But records such as those that are the subject of
this hearing and the hearing last week and future hearings are
subject to retention and retrievability, are they not?
Ms. Nolan. Sir, I want to be clear on the--the Armstrong
decision compelled certain records management and
retrievability for Federal records. It did not address
Presidential records. So I am not aware that there's a decision
that says that Presidential records----
Mr. Barr. Is your position then that Presidential records--
and maybe you ought to define those for us--are not subject to
the Armstrong decision?
Ms. Nolan. That's correct.
Mr. Barr. Is your position also that the Privacy Act does
not apply to those records?
Ms. Nolan. Yes, sir. It is a long-standing interpretation
of the Privacy Act from the Justice Department, starting with
its initiation, that it does not apply to the White House
Office and essentially to Presidential records.
Mr. Barr. In other words, you take strong exception to
Judge Lamberth's decision yesterday.
Ms. Nolan. I disagree with Judge Lamberth's decision
yesterday, yes, sir.
Mr. Barr. Because you believe that e-mails such as those
which we're considering here which are subject to subpoenas,
for example, by the Office of Independent Counsel, this
committee and the impeachment committee or the Judiciary
Committee do not apply to e-mails generated by or from the
White House?
Ms. Nolan. No, sir. I'm sorry. Could you repeat that
question? I'm not sure I understood it.
Mr. Barr. What we're talking about here are a large number
of e-mails, generated by or directed to employees of the
Executive Office of the President and other offices within or
connected with the White House, is that correct?
Ms. Nolan. Yes, the problems, with the exception of the
OVP, apply to the incoming, not the e-mail generated by the EOP
user. I want to make sure that I'm clear about that.
Mr. Barr. So your position, then, is that the subpoenas--
for example, those issued by the Office of Independent Counsel,
subpoenas for these documents by this committee or by the
impeachment committee, that you do not even have to comply with
those because they relate to outgoing e-mails?
Ms. Nolan. Absolutely not, sir. I hope I didn't say
anything close to--I believe I did not say that.
Mr. Barr. That's why I wanted to clarify. Because it struck
me far reaching even for this administration.
Ms. Nolan. I understood your question to be whether the
Presidential Records Act or the Armstrong case require White
House Office records to be retrievable in an electronic form. I
am not aware that there is any such legal obligation. Armstrong
did not apply to Presidential records, and the Presidential
records----
Mr. Barr. They did not say they weren't covered, though.
Ms. Nolan. No. The court actually considered that question,
yes, sir.
Mr. Barr. Your position is that the Armstrong decision
expressly provided that e-mails going to the White House or
going out of the White House are not subject to retrieval in an
electronic format.
Ms. Nolan. No, I'm saying that the Armstrong case
specifically excluded discussion of Presidential records, which
includes White House Office records. It addressed Federal
records. And that was a specific part of the case, the
plaintiffs--my understanding is that the plaintiffs actually
wanted the court to address both. And it did not.
Mr. Barr. So what you're saying there's a loophole here----
Ms. Nolan. No loophole, sir.
Mr. Barr [continuing]. Through which you want to drive a
Mack truck. But those same e-mails are properly subject, are
they not, to subpoena by the independent counsel and by
committees of Congress. Is that correct?
Ms. Nolan. We've supplied thousands and thousands of e-
mails pursuant to subpoena requests.
Mr. Barr. Yes, they are subject to subpoena, but if they
happen to be in an electronic format, and you all just happen
to lose them or not know where they are, that you're under no
obligation to search the records for them because they're not
covered by the various statutes of the Armstrong decision.
Ms. Nolan. I didn't say anything like that, Mr. Barr.
Mr. Barr. Does the White House recognize an obligation to
have e-mails sent from or to employees in the Executive Office
of the President stored in such a way so that they can be
retrieved and be responsive to subpoenas issued by the Office
of Independent Counsel or a congressional committee?
Ms. Nolan. Mr. Barr, the White House included White House
Office and Presidential records e-mails in the ARMS system,
which is an automated retrieval system, even though it was
under no legal obligation at the time to do so. It has used the
ARMS system to try to--to respond to subpoena requests. I don't
think there's any suggestion----
If I haven't been clear about this, let me be clear. There
is no contention here that we were under no obligation to
search and produce. What happened was that the search did not
produce certain e-mails because they weren't in the ARMS system
or may not have produced certain e-mails because they were not
properly captured in the ARMS system. The lawyers who were
doing the productions were not aware that the ARMS system did
not contain those e-mails.
Mr. Barr. On what basis do you make the statement that they
weren't aware of it? Because it's my impression that they were
through several means.
Mr. Burton. Let me--Mr. Shays, do you intend to yield to
Mr. Barr?
Mr. Shays. I'll be glad to yield.
Mr. Barr. There were various articles written in the public
domain back in 1998 that this problem did exist. Judicial Watch
furnished letters to Judge Lamberth indicating on the record
that this problem did exist. We had testimony just a week ago
that there was a--in July 1998 that Mr. Haas did a search of
several users' files for e-mails regarding Ms. Lewinsky. And
that there were a fairly significant quantity that were
retrieved and they were delivered to the White House counsel's
office.
He could not--or at least testified that he could not
remember to whom they were delivered or precisely when, and he
professed to have no knowledge or record of when they were
delivered.
So, it mystifies me, to some extent, one, to hear you say
that nobody in the White House counsel's office was aware that
there was this problem or that these e-mails were not
retrievable. There was testimony that they were retrievable.
Ms. Nolan. Sir----
Mr. Barr. Specifically with regard to--and I'm sure you're
aware of the testimony last week by Mr. Lindsay, the other Mr.
Lindsay, that he did in fact deliver this large set of e-mails
that he had retrieved at the direction of Miss Lambuth to the
White House counsel's office--where are those e-mails?
Ms. Nolan. He--the e-mails were produced to the counsel's
office. The counsel's office checked them against e-mails it
had already been provided and produced and discovered that they
were duplicative. So there were no new e-mails. That is my
understanding of----
Mr. Barr. But where are they?
Ms. Nolan. The F drive--Mr. Haas's F drive, which has the
results of that search, is in the EOP; and a zip disk of that
has been made; and that's where Mr. Easley----
Mr. Barr. But where are the e-mails? They were hard
documents delivered. Where are they?
Ms. Nolan. The hard documents? Mr. Barr, I will find out.
Mr. Barr. Well, is there any record of them having been
delivered to the White House counsel's office in approximately
July 1998?
Ms. Nolan. A lawyer in the counsel's office remembers
checking e-mails against another--a set that we had produced
and determining that they were duplicative.
Mr. Barr. Who is that lawyer from the White House counsel's
office?
Ms. Nolan. Michelle Peterson, sir.
Mr. Barr. Might I suggest we subpoena Ms. Peterson? Maybe
she remembers.
Mr. Burton. I think that's a good idea.
Would the gentleman yield for just a moment?
Mr. Barr. Certainly.
Mr. Burton. Now, Ms. Peterson according to your testimony,
you said that they were duplicates of what had already been
given to various individuals, i.e., the independent counsel and
then Mr. Hyde's investigation and so forth. Why didn't you just
go ahead and send those over there instead of checking to see
if they were duplicates? Because you know there's some question
among some people about whether or not everybody has been
getting the straight scoop on what was going on over there and
what was in these e-mails. For somebody at the White House who
works for the President to say that they're duplicates still
doesn't erase all doubt. I mean, why didn't they just go ahead
and send the hard copies over to the independent counsel and to
the investigative committees that wanted them?
Ms. Nolan. Mr. Burton, my understanding is that the
counsel's office was informed that there was or might have been
a problem in conducting a search, that the second search was
done. And I want to be clear that the search, as I understand
it, was of the server, which is what Mr. Haas testified he did.
That second search showed that there had not been a problem
because those documents had already been found, apparently,
when people----
Mr. Burton. I know, but that's not the question I'm asking.
Ms. Nolan [continuing]. When people conducted their own
searches of their own servers. And so there was no----
Mr. Burton. I understand.
Ms. Nolan [continuing]. No question.
Mr. Burton. But the question is you had hard copies of the
e-mail. They were sent to the President's chief counsel's
office, Mr. Ruff's office. Ms. Peterson went through those, and
she said they were duplicates. But, you see, those of us who
are investigating don't want somebody at the White House to say
they're duplicates. We want the hard copy so we can look at
them and see if they're duplicates. Why weren't those forwarded
on so that determination could be made by the relevant
committees that had subpoenaed the documents?
Ms. Nolan. Sir, I'm not sure how to explain it any better
than I have. If somebody came to me and said, here are some
documents; did we produce these? And somebody looks at them and
says, yes, we produced them. I wouldn't say let's produce
those, too. That was the question that was being asked. Have we
produced them?
Mr. Burton. I think the problem here is they were from a
different source. They went through Mr. Lindsay's office to the
chief counsel's office. And they made the determination they
were duplicates. I think we ought to see those--see all of
those documents. So we'll send a relevant subpoena up for those
as well as the zip disk as well.
Mr. Shays. It's my time. Now I yield to Mr. Shays.
Are you finished, Mr. Barr?
Mr. Barr. No, I could use some more time if it's available.
Mr. Burton. Excuse me. Mr. LaTourette, are you prepared to
go forward?
Mr. LaTourette. I'll yield to Mr. Barr. I would be happy to
yield to Mr. Barr.
Mr. Burton. Mr. Barr.
Mr. Barr. Thank you.
The search that that you were talking about, Ms. Nolan, I
think you described it as the second search earlier?
Ms. Nolan. The search that Mr. Haas did?
Mr. Barr. Is that the search that you're talking about when
you say the second search?
Ms. Nolan. I'm sorry. You would have to point me to exactly
where I said the second search. I assume that's what I was
talking about.
Mr. Barr. I think it was pursuant to some of your answers
to questions by Mr. Waxman you used the term second search.
Ms. Nolan. You know, unless I see exactly where I said it I
can't assure you, but my best guess, Mr. Barr, is that, yes, I
was referring to the search that Mr. Haas did of the server
after the Mail2 problem had been identified.
Mr. Barr. What was the scope of that search?
Ms. Nolan. I don't know exactly, sir.
Mr. Barr. OK. When was it conducted?
Ms. Nolan. Some time in the summer of 1998. I'm not sure.
Mr. Barr. Is the one that you say was conducted by Mr.
Haas?
Ms. Nolan. That's correct, sir.
Mr. Barr. OK. Mr. Raben, last week the Department of
Justice indicated I think that it was launching a criminal
investigation of this matter. What was it in particular that
gave rise to that decision at that particular time last week?
Mr. Raben. I don't know all of the facts that prompted the
Campaign Finance Task Force----
Mr. Barr. How about some of them? Share some of them with
us.
Mr. Raben. I know there's a filing that was submitted in
the civil case that reflects some of the concerns that the
Campaign Finance Task Force perceived that prompted them to
initiate their inquiry.
Mr. Barr. Are you talking about Mr. James Gilligan?
Mr. Raben. No, sir. There's a----
Mr. Barr. Who is James Gilligan? Could you tell us how he
fits into the equation?
Mr. Raben. I believe that he's an attorney in the Civil
Division, but I don't know.
Mr. Barr. OK. But he is involved, is he not, with these
probes?
Mr. Raben. I'm not sure what you mean by probes. Do you
mean the criminal inquiry that's been initiated?
Mr. Barr. Not only that one but the various investigations
that have been ongoing, both civil and by the independent
counsel.
Mr. Raben. I'm not sure exactly what he does. I can find
out and get back to you. But I believe he's a Civil Division
attorney that's been involved in the civil action.
Mr. Barr. And he was aware at least as far back as December
1998 about this problem, is that correct?
Mr. Raben. I have no idea what he was aware of, sir.
Mr. Barr. Do we a copy of--I have a letter here from
Judicial Watch dated December 8, 1998, referencing articles
from an edition of Insight Magazine. And if we could ask--if I
could ask unanimous consent to have that made a part of the
record, please, Mr. Chairman.
Mr. Burton. Without objection, so ordered.
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Mr. Barr. That letter is dated December 8, 1998 to Mr.
Gilligan at the Civil Division of the Department of Justice.
Now, does Mr. Gilligan work with Michelle Peterson?
Mr. Raben. Mr. Gilligan, I believe, is the Department of
Justice attorney. I believe--I don't think I know Ms. Peterson,
but I think I learned today that she works at the White House.
Mr. Barr. It's a fact that Mr. Gilligan works with Michelle
Peterson and Sally Paxton. They are both at the White House
counsel's office, are they not?
Ms. Nolan. Sally Paxton is not, sir. She was at the White
House counsel's office. Michelle Peterson is, yes.
Mr. Barr. When did Ms. Paxton leave?
Ms. Nolan. It was before I got there, sir. I'm not exactly
sure.
Mr. Barr. How about approximately?
Ms. Nolan. I don't know. I could get the answer to you, but
I don't know.
Mr. Barr. You went there most recently----
Ms. Nolan. In September of this year. September of--last
year, rather--September 1999.
Mr. Barr. But she had been there in 1998?
Ms. Nolan. I couldn't testify to that. I just don't know. I
will try to find out.
Mr. Barr. Maybe Mr. Lindsay is helping us out here. Is he?
Is Mr. Lindsay helping us out here?
Ms. Nolan. Not that I can figure out.
Mr. Barr. Mr. Bruce Lindsay is here. Would you like to
testify Mr. Lindsay?
Mr. Lindsay. I'm not sure when she left. We can find out
for you.
Mr. Barr. OK. You do have a copy of the December 8th, 1998,
letter there, I believe.
Ms. Nolan. Oh, that's what I have. Yes, sir. I haven't read
it yet.
Mr. Barr. It's a fairly short letter from Judicial Watch,
and I don't know if you have the attachments, but there were
some attachments there. The point is that, at least in December
1998, Mr. James Gilligan was on notice that there was this
problem with the e-mails. Do you need to go to another member?
Mr. Burton. Yes, the gentleman's time has expired. We'll
come back. I think we're starting our second round.
Let me just go back to the document that--I'll take my 5
minutes now--that Mr. Barry signed. Mr. Raben.
Mr. Raben. Raben.
Mr. Burton. Raben. I'll get it right.
Mr. Raben. It's close to the building.
Mr. Burton. Do you agree that paragraph 4 of the affidavit
is false?
Mr. Raben. I haven't seen the affidavit.
Mr. Burton. Well, stop the clock.
Mr. Raben. I mean----
Mr. Burton. Give Mr. Raben the document--56. Would somebody
give him a copy of the document? It's on the table in front of
you, I guess. They tell me it is.
Mr. Raben. Oh, I'm sorry. Yes there is a 56 here.
Mr. Burton. Would you look at paragraph 4 of the affidavit?
Would you agree----
Mr. Raben. Since July 14th, that one?
Mr. Burton. Yes. Would you agree that that's false?
Mr. Raben. I just want to be clear. So this is the
declaration that we're talking about, paragraph 4? Since July
14th, 1994, e-mail within the EOP, that paragraph?
Mr. Burton. That's it.
Mr. Raben. I have no knowledge. I have no ability to
determine whether it's true or false.
Mr. Burton. You know, I think I've asked you four or five
questions, Mr. Raben, and every one of those questions you said
you have no knowledge or you can't--what are you doing here?
Mr. Raben. Well, you subpoenaed me, sir.
Mr. Burton. Well, I subpoenaed--well, I'll tell you what
I'll do the next time. I'll just have to subpoena the whole
doggone Justice Department. Because somebody has the answer up
there. You're the man that was supposed to be the one that
could answer the questions. You have no knowledge. Did you talk
to anybody at the Justice Department about the questioning that
was going to go on this week?
Mr. Raben. Yes, I did.
Mr. Burton. Did you go over any of the documents or any of
the information that we discussed last week or any of the
testimony of last week?
Mr. Raben. I looked through some of the public documents
that I know to have been disseminated in this case, some of the
transcripts.
Mr. Burton. Last week, we talked to Mr. Barry, and it was a
significant part of the discussion. Do you recall us talking to
Mr. Barry? Did you review any of those documents that we talked
to Mr. Barry about?
Mr. Raben. I did not.
Mr. Burton. You did not. Did you review any of the
testimony from last week?
Mr. Raben. I read some of it, yes.
Mr. Burton. You read some of it.
Mr. Raben. Yes.
Mr. Burton. So you came to testify and you hadn't reviewed
the documents or the information.
Ms. Nolan, did Mr. Barry express any hesitation about
signing that affidavit, do you know?
Ms. Nolan. I don't know sir. I wasn't there, and I don't
know.
Mr. Burton. We've been informed that Barry was told not to
worry about it by Justice Department lawyers, but you have no
knowledge of that.
Ms. Nolan. I have no knowledge of that.
Mr. Burton. Neither does Mr. Raben.
Mr. Raben, do you know if Barry expressed any hesitation to
Justice Department lawyers that the affidavit that they help
him prepare was accurate, was not accurate?
Mr. Raben. No.
Mr. Burton. You have no knowledge.
Mr. Raben. No knowledge.
Mr. Burton. Who at the Justice Department would have
knowledge?
Mr. Raben. Knowledge of what? Of Mr.----
Mr. Burton. Of this affidavit and whether or not they told
Mr. Barry that there was no problem with him signing it.
Mr. Raben. I don't know. I will try to find out for you,
sir. I presume that we're talking about people within the Civil
Division.
Mr. Burton. Do you know who helped him prepare the
affidavit?
Mr. Raben. Do not.
Mr. Burton. You don't know that either.
Mr. Raben. I do not.
Mr. Burton. So you don't know if Mr. Barry was told not to
worry about any problems in the affidavit. You don't know that
either.
Mr. Raben. No. I have failed to say and should make it
clear, I presume, but you will not be surprised to hear that I
don't know that many of the facts that you're talking about are
now going to be encompassed or are encompassed within an
initiated criminal inquiry.
Mr. Burton. Within your investigation that you will control
at the Justice Department, correct.
Mr. Raben. There will be a Justice Department criminal
investigation of----
Mr. Burton. And usually when we asked for information, when
the Justice Department involves itself in a criminal
investigation, they say that's pending before the Justice
Department, and a congressional committee has no jurisdiction
until it has been resolved. That's the kind of answer we've
been getting time after time. It's before the grand jury, it's
6-C material, and we can't get anything out of the Justice
Department.
Let me just say I want to know--I'm asking you to find out
who helped draft that affidavit. I want to know exactly who at
the Justice Department helped prepare that affidavit.
And, Ms. Nolan, I would like to know at the White House who
exactly help participate in drafting that affidavit. Because
I'm going to subpoena those people and have them come before
the committee and ask them whether or not they gave him that
kind of information, that there was no risk in him signing
that.
Mr. Barr. Would the chairman yield for a moment?
Mr. Burton. I would like to find out, if you have somebody
that's an assistant here, if you can get that information by
the end of the hearing. We're going to be here until 5:30 or 6
probably. So would you instruct your counterparts from the
Justice Department and the White House to give us the names of
the people who worked on those affidavits? We want to talk to
them. OK. Would you do that?
Ms. Nolan. Yes, sir.
Mr. Burton. Thank you.
Mr. Barr. If the chairman would yield for a moment.
Mr. Burton. My time has expired. Who's next on the list
here?
Mr. Barr, you're next, because Mr. Waxman is not yet here.
Mr. Barr. Thank you, Mr. Chairman.
Mr. Chairman, following on your question with regard to the
timing of the latest so-called criminal probe, the record that
you've established, Mr. Chairman, clearly establishes that the
White House knew there was a problem with these e-mails, their
retention and retrieval as early as January, late January,
early February 1998. Even if they maintained that somehow they
did not know then, clearly by the summer of 1998 they knew
there was a serious problem.
We also know that the Justice Department had conversations
with Mark Lindsay in 1998. We also know now that the Justice
Department knew directly from the civil proceedings that
Judicial Watch is handling--we'll give them the benefit of the
doubt--as late as December 1998 that there was a serious
problem here. Yet the Department of Justice, for reasons
professed to be unknown by the Department of Justice witnesses
today, cannot tell us any reasoning as to why the timing of
their so-called criminal probe didn't occur until last week.
In the absence of some explanation as to why they sat on
this for month after month after month after month, Mr.
Chairman, I'm left, unfortunately, with the same conclusion
that you have, that the timing of the so-called criminal probe
announced last week is simply to thwart the discovery in the
civil case or cases as well as this committee's legitimate
probe.
And I agree with you, Mr. Chairman, that is something that
we ought to look into. Because if, in fact, the system whereby
legitimate investigations are used legitimately to limit
outside investigations while a legitimate criminal probe is
going on in order to protect that information normally within
the breast of a grand jury is being abused simply to deny
materials to a plaintiff or--and/or to deny materials to a
congressional investigation, Mr. Chairman, that goes beyond
simply incompetence to obstruction of justice and obstruction
of Congress. And that doesn't even get to the obstruction that
we went into last week with regard to witnesses testifying
under oath that they were intimidated into not disclosing
evidence that they had about this particular problem. So I
consider the hearing last week and this followup hearing, Mr.
Chairman, very, very serious.
And again, the position, Ms. Nolan, that you've taken that
Mr. Ruff either didn't know there was a real problem here or
thought it had just gone away or been resolved just does not
make any sense. White House lawyers knew there was a problem.
The Office of Administration knew there was a problem. The
Department of Justice knew there was a problem. It just strains
credibility for you to say that, in your view, Mr. Ruff thought
this problem had been resolved. It clearly had not been
resolved, and that's what's particularly bothersome to us.
And yet you seem to be saying that the problem, as you all
saw it, had no effect on the subpoenas until you read about it
I think you said in the Washington Times in February of this
year. Are you having us believe that nobody within the White
House communicates with people in the Office of Administration
or nobody in the White House counsel's office communicates with
people at the Department of Justice? Because each one of the
offices knew there was a problem.
Ms. Nolan. Mr. Barr, I can't affect what you believe. I can
tell you----
Mr. Barr. Yes, you can.
Ms. Nolan. I can tell you that it is my testimony, it has
been my testimony through several hours here, that Mr. Ruff has
informed me that he was aware that there might have been or was
a problem with a search, that it turned out there was not a
problem with that search because the retrieved e-mails were
duplicative, that he was not aware that there was an ongoing
problem. I can't speak to what the Department of Justice knew
or----
Mr. Barr. At what point did Mr. Ruff, in your opinion or
your view, realize that there was still a problem?
Mr. Burton. The gentleman's time has expired. We'll let her
answer.
Ms. Nolan. We've talked to him in the past month, yes, sir.
Mr. Barr. He realized there's a problem.
Ms. Nolan. He realizes now that the Mail2 and letter D
problems, computer problems, could have affected searches that
were conducted.
Ms. Nolan. Yes, sir.
Mr. Burton. Mr. Barr, we'll get back to you. Mr. Waxman
would like to have his 5 minutes now.
Mr. Waxman. Thank you, Mr. Chairman.
I want to clarify for the record there's been some question
about Mr. Haas's testimony. And this is from the record from
last week.
Robert Haas, with regard to the zip disk,
Mr. Burton. OK, did you ever save any search responses or
records on another electronic media such as a zip drive?
Question.
Mr. Haas. Just the stuff I saved for the people with the
subpoena right now last week. I've never saved it on a zip
drive for anybody.
Mr. Burton. Never saved it on a zip drive or any kind of
electronic device that you might have had at home or something?
Mr. Haas. No, sir. I don't have a zip drive. I have a zip
drive at home that is currently broke, but I don't have any--I
just recently got a zip drive at work to record these documents
last week, but I don't----
Mr. Burton. The one at home though doesn't have any
information on it?
Mr. Haas. No, sir.
So the central point was what he was asked about he said
that he had--the stuff he saved for the people with the
subpoena right now last week.
Now, I want to also make a point for the record about Tony
Barry or Daniel Tony Barry. The chairman made a perjury
allegation regarding his affidavit which was submitted in July
1999. Now, this affidavit was part of a civil suit brought by
plaintiffs represented by Larry Klayman of Judicial Watch. Mr.
Barry is a career civil servant with expertise in technical
computer matters. I understand that the affidavit was filed in
response to complaints by Larry Klayman regarding the efforts
of the Office of Administration to reconstruct e-mails that
existed before the establishment of the Automated Records
Management System, or the ARMS, in 1994. This reconstruction
effort is separate from reconstruction related to the Mail2 e-
mail problem that this committee has recently been examining.
Mr. Barry's affidavit that describes the 1994
reconstruction status should be taken in the proper context. It
addressed questions such as the status of the restoration and
reconstruction process for pre-July 14th, 1994 e-mail, the time
and cost associated with conducting the e-mail search proposed
by the plaintiffs in the civil lawsuit and the steps involved
with such a search.
Now it's true that the affidavit did not disclose the Mail2
computer glitch that occurred several years later. But, given
the context of the affidavit, it's hard to see how that
omission would be perjury.
It appears that the main point of the affidavit was to
describe the status of the pre-ARMS e-mail reconstruction and
how searches requested by the plaintiff would be conducted. In
hindsight it would have been a good idea to include information
in the affidavit regarding the status of the Mail2 problem.
However, the omission of that information is a far cry from
perjury.
Then I understand an issue has come up with the Armstrong
case and what was the requirement placed on the White House.
And in that case--and I was able to read this from the case--
whereas Federal records are subject to strict document
management regime, supervised by the Archivist, the
Presidential Records Act accords the President virtually
complete control over his records during his term of office.
That's from the Armstrong case. Neither the Archivist nor an
agency head can initiate any action through the Attorney
General to effect recovery or ensure preservation of
Presidential records. So, it would appear that, even though the
case didn't apply to the Presidential records, the White House
was still trying to create a system where they would treat the
Presidential records the same as they would any other Federal
records.
And then just on this point about the Justice Department
launching an investigation in order to keep a real
investigation from taking place, I think we all ought to
remember that there's still an independent counsel, Mr. Ray;
and he's investigating whether he got all the information to
which he was entitled.
So even if you accept this theory that Justice is not doing
the job--and I don't accept that theory that's a huge leap--but
if you accept that theory, the fact of the matter is there is
an independent investigator out there looking to see whether
the e-mails were properly turned over and whether there's
information that the independent counsel didn't receive
pursuant to its investigation.
I see my time has expired, Mr. Chairman. I'll come back
later with another round.
Mr. Burton. Mr. Shays.
Mr. Shays. Thank you, Mr. Chairman.
Ms. Nolan, I have low expectations; and if I do, I don't
get frustrated. I still don't know who hired Craig Livingstone.
And I'm dealing with a White House that would send a President
a memo from Phil Caplan entitled, DNC Finances. And he said,
``Of this amount, $2 million will be used for campaign, $1.5
million for campaign winddown and compliance/audit, and $1
million for potential fines.'' So we had a White House that
knew they were going to break the law. I certainly knew a
campaign that would have to pay fines to do it.
So my expectations are pretty low. But I would like to try
to get some basic information. One of them is, I want to
identify this document. You make reference to it. We sent a
letter on March 21st to James Wilson, the chief counsel.
Ms. Nolan. Can you tell me what document you're referring
to, Mr. Shays?
Mr. Shays. It's NG-1.
Why don't we put it up on the board? Just that first page
is good enough.
Tell me what this document is. This was sent to us by the
associate counsel to the President, Dimitri Nionakis.
Ms. Nolan. Nionakis.
Mr. Shays. Nionakis, thank you. So Mr. Nionakis sent this
to us. You made reference to it in your testimony. Tell me what
this document is.
Ms. Nolan. I'm sorry, sir. I don't remember making
reference to it myself other than in response to a question,
but I can.
Mr. Shays. Turn to the bottom of page 6.
Ms. Nolan. Page 6 of my testimony.
Mr. Shays. Your testimony. I would like you to read it,
read all of 2.
Ms. Nolan. Oh, yes, sir. I do remember this now.
Mr. Shays. Would you read it, please?
Ms. Nolan. ``Absent a search of back-up tapes, we cannot
currently estimate how many e-mails were affected. Late Friday,
March 17, N-G counsel provided OA with a document that appears
to reflect that on June 18, 1998, an N-G employee reviewed the
affected ARMS managed account on the server and counted the
number of affected e-mails on the server at that time. I have
been informed that OA and IS&T personnel were previously
unaware that that document existed or that anyone had estimated
the number of unrecorded e-mails. Although we cannot attest to
the accuracy of this document, we provided it to you
yesterday.''
Mr. Shays. Now, do you have any reason to doubt the
accuracy?
Ms. Nolan. No, sir.
Mr. Shays. OK. It says, ``I have been informed that OA and
IS&T personnel were previously unaware that that document
existed or that anyone had estimated the number of unrecorded
records.'' That same language, ``I have been informed that OA
and IS&T personnel were previously unaware that that document
existed or that anyone had estimated the number of unrecorded
e-mails,'' we have two different ``I's'' with the same
sentence--that's 6. Now, let's just deal with----
[Exhibit 61 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.204
[GRAPHIC] [TIFF OMITTED] T9621.205
Ms. Nolan. I'm sorry, 61 is?
Mr. Shays. It's just the same sentence. It's just from
Nionakis. He said the same thing. That was in his letter of
transmittal. It's interesting you both use the same sentence
but ``I'' is you and ``I'' is him. So I want to know who you
spoke with, who informed you.
Ms. Nolan. Mr. Nionakis, sir.
Mr. Shays. So Mr. Nionakis informed you that OA and IS&T
personnel were previously unaware that that document existed or
that anyone had estimated the number of unrecorded e-mails.
That's----
Ms. Nolan. Previously unaware that anyone had.
Mr. Shays. Who told you?
Ms. Nolan. Mr. Nionakis, sir.
Mr. Shays. So Mr. Nionakis says, I have been informed that
OA and IS&T personnel were previously unaware that this
document existed or that anyone had estimated the number of
unrecorded e-mails. Would he tell me that you told him that?
Ms. Nolan. No, sir, I don't believe he would.
Mr. Shays. What do you think he would say?
Ms. Nolan. I believe that he spoke with the general counsel
of the Office of Administration.
Mr. Shays. Now, this document has a lot of names in it. Why
don't you just tell me what it means, that first page?
Ms. Nolan. Let me make clear this is a document that a
Northrop Grumman employee provided. It's not something we
produced.
Mr. Shays. You have no interest in this document?
Ms. Nolan. I did not say that, sir. I just said I want to
make clear, if I'm going to answer questions, that it's not
something that I produced or that I'm going to be telling you
what I know from the document.
Mr. Shays. Fair enough. I think that's fair to point out.
My interest is just knowing if you have enough interest to
know about this document. Because really what the White House
has consistently done is it has simply chosen not to know
information. Then they don't have to share information. So I'm
interested that----
Mr. Chairman, my time has run out. I wonder if my colleague
would yield me his 5 minutes.
Mr. LaTourette. I would be happy to yield it Mr. Shays.
Mr. Burton. Mr. LaTourette will yield.
Mr. Shays. Let's just take Dorian Weaver. It has 441, the
number of 441.
Ms. Nolan. I'm sorry, sir, where are you on it?
Mr. Shays. Third name down. What does that mean?
Ms. Nolan. What does 441 mean?
Mr. Shays. Yes.
Ms. Nolan. I believe that the 441 refers to the e-mails
that were not captured by ARMS.
Mr. Shays. So now if I turn to page 304 of that document--
--
Ms. Nolan. Pardon, sir?
Mr. Shays. If I turn to page 304 of that document, I see on
the document Phillip Caplan, the same one I believe who wrote
that memo. I call it the ugh memo because alongside of it is
the President's handwritten ugh when he learned that they would
have to pay set aside $1 million for potential fines. So--but
turn to this document here. Do you see the name Phillip Caplan
at the bottom?
Ms. Nolan. Yes, sir.
Mr. Shays. What's the number you see there?
Ms. Nolan. I see 944 and 5559.
Mr. Shays. And may I make an assumption that that's
potentially 944 e-mails that he sent the White House that we
haven't yet seen?
Ms. Nolan. Again, you know, I'm not the creator of this
document. I am not the best person to answer these questions.
Mr. Shays. No, you are the best person to answer this
question.
Ms. Nolan. The assumption is wrong. Because sir, it--my
understanding is that the 944 reflects e-mails that came in to
him, not e-mails that he created.
Mr. Shays. E-mails that came in.
Ms. Nolan. From outside the complex.
Mr. Shays. So we got some e-mails. We just didn't get these
e-mails.
Ms. Nolan. We don't know if we got these e-mails or not.
Mr. Shays. You probably don't care to ever find out.
Ms. Nolan. Sir, we have hired a contractor to restore the
back-up tapes and make them searchable so we can do that. I
certainly do care that we find----
Mr. Shays. Why should I feel moved by what you said when we
had Insight Magazine that a year ago talked about this and then
we had Washington Times that had a story--but this time, unlike
Insight, they have a name, Sheryl Hall. She broke the story,
and then you people tell us the problem. You didn't come first.
We had to read about it in the newspaper, didn't we?
Ms. Nolan. Sir, that's when I learned of the problem.
Mr. Shays. But isn't it true----
Ms. Nolan. No, I don't understand what you're saying is
true.
Mr. Shays. Isn't it true that this was a problem that
existed for a long period of time? The White House knew for a
fairly extensive period of time. We have testimony I believe
from last week that two personnel from the White House were
told of this document--you don't have the document. OK.
The question I have is that the first time we learned about
it was through a newspaper story. And it's your story that the
first time you learned about it was through the newspaper?
Ms. Nolan. It is my testimony that the first time I learned
of it was with respect to the litigation. I don't know if it
was in the newspaper.
Mr. Shays. When was the first time that John Podesta
learned of it?
Ms. Nolan. As I testified earlier, John Podesta----
Mr. Shays. June 19th, 1998. That's when he learned of it.
Ms. Nolan. He learned of some problem, sir. I don't know--I
can tell you this: In the past month, my understanding of the
problem has grown quite a bit.
Mr. Shays. What is the date on the front page of this
document?
Ms. Nolan. This document was provided to us less than 2
weeks ago, sir. Less than 2 weeks ago.
Mr. Shays. What is the date of it? At the top of it?
Ms. Nolan. I don't see a date. Oh, 6/18/98.
Mr. Shays. Right. Now, I had made reference to you of
246,000 e-mails. And you said, well, you didn't know how many.
Why wouldn't you have counted these up?
Ms. Nolan. Sir, this reflects the count that was done by
Northrop Grumman employee on a particular day. There are 3,400
back-up tapes. There may well be e-mails on those that aren't
reflected here.
Mr. Shays. I understand. But I'm just curious why you
wouldn't have wanted to know how many we were talking about.
Are we talking about 50? Are we talking about a few thousand?
Why don't you have any curiosity to find out these--I would
have wanted to know, if I were you. I would have wanted to know
how big the potential universe is.
Ms. Nolan. Mr. Shays, I want to know, too. That's why we
have a contractor, to look at those 3,400 or more back-up tapes
and find out. That's the way we'll know.
Mr. Shays. This document includes 247, give or take, 46,000
potential e-mails. Correct?
Ms. Nolan. I don't know that, sir.
Mr. Shays. Because you didn't count them. Their numbers are
right here. You haven't asked anyone to just add them up.
Ms. Nolan. I have not added them up, sir.
Mr. Shays. You did not ask anyone else to.
Ms. Nolan. I did not ask anyone.
Mr. Shays. How come?
Ms. Nolan. Sir, I thought--you know, what I wanted to do is
see that we get those back-up tapes restored and searched, and
that's what I'm doing. If you want to count e-mails on a
particular day, you can do that. But that is not going to
answer the question.
Mr. Shays. Bruce Lindsay----
Mr. Burton. Excuse me. I have the next round, and I'll
yield to my colleague.
Mr. Shays. I mean, just going through them, my curiosity--
--
Ms. Nolan. Can I answer two questions?
Mr. Burton. If the gentlemen would yield, I understand that
the witnesses need to take a quick break, and if that be the
case----
Mr. Shays. Let's do that.
Mr. Burton [continuing]. We'll allow them, if we could, 5
to 10 minutes for that. And whatever questions you have of the
Chair we'll answer when you come back.
Ms. Nolan. Thank you very much, Mr. Chairman.
[Recess.]
Mr. Burton. The committee will reconvene.
Mr. Shays, you have my time.
Ms. Nolan. Mr. Chairman, can I make the----
Mr. Burton. Yes, hold it just a second. Yes, ma'am.
Ms. Nolan. You had asked or the committee had asked two
questions. I said I would try to get back to you today.
Mr. Burton. You have the answers.
Ms. Nolan. Sandy Paxton left the White House on January 4,
1999.
Mr. Burton. OK.
Ms. Nolan. And Michelle Peterson was the counsel's office
lawyer working on the case at the time that the Barry affidavit
was done.
Mr. Burton. So she----
Ms. Nolan. She worked on the case. I don't know yet whether
she worked on the affidavit. But she was--she was the counsel's
office lawyer who was responsible for that case.
Mr. Burton. Well, the thing is----
Ms. Nolan. So if it was somebody in the counsel's office it
would have been Michelle Peterson.
Mr. Burton. The reason I would like to have a definitive
answer from both of you today is because we're going to have
more hearings, but I want to minimize those. If we bring more
people in, we say, it wasn't me, it was somebody else. We have
to go through this again and again. I mean, we're going to be
consistent and follow through to get as many of these answers
as possible. So, Mr. Raben, have you found out anything?
Mr. Raben. No, I sent a gentleman to check, and we're
waiting on an answer, sir.
Mr. Burton. You'll inform us as soon as you're ready.
Mr. Shays.
Mr. Shays. Thank you.
Ms. Nolan, you may have misspoke, and I don't want to try
to trap you into misspeaking. You said the first time you
learned about the problem was reading it in the newspaper on
March--on February 15th. Is that your testimony?
Ms. Nolan. No, sir. You said that, sir. I don't believe I
said that. I said that the first time I learned about the scope
of the problem was following the filing in the case. I was
briefed in February. I'm not sure----
Mr. Shays. Weren't you briefed in January?
Ms. Nolan. I was briefed in January, as I testified this
morning, about a post-presidency transition.
Mr. Shays. You were briefed that there was a problem with
the Mail2 issue.
Ms. Nolan. I was briefed on the Mail2 and letter D problem
but not, sir----
Mr. Shays. So we found out after the story. You found out
before the story.
Ms. Nolan. I did not find out the scope or nature of the
problem, no, sir.
Mr. Shays. So you said there were--the scope is 526 total
users affected. That's a pretty large scope.
Ms. Nolan. Earlier, sir, you thought that the scope was how
many e-mails----
Mr. Shays. No, but that's the users. So your noninquisitive
mind is really demonstrated here.
Did you find----
Ms. Nolan. That's the first person who has accused me of
that, sir.
Mr. Shays. Well, I'm accusing you of it.
Ms. Nolan. I hear it. I hear the accusation, sir.
Mr. Shays. And the accusation is very clear. You were given
a document ultimately that had thousands, hundreds of thousands
of names. Let's just go through some of these names. I would
think you would have wanted to go through it. Phillip Caplan,
who wrote the ugh memo, he had 944; Bruce Lindsay, 17; Betty
Curry, 811. Boy, I would love to see some of these e-mails.
Ms. Nolan. I am informed, sir, that these e-mails----
Mr. Shays. I'm not finished. Erskine Bowles, 161; Ira
Magaziner, 3,693; Bill Clinton, 2.
Now, see, the reason I'm speaking this way is it is only,
you know, that one memo from Mr. Caplan I'm sure people didn't
want us to get when they acknowledged that they knew they were
going to break the law and be fined a million dollars
potentially. So you know, even one out of 246,000 might be very
interesting for us to see, might be pertinent to all these
investigations.
What did you want to say?
Ms. Nolan. Mr. Shays, I wanted to say, first of all, memos
by Mr. Caplan would have been captured because it's only e-mail
coming into the system that was affected by the Mail2 and
letter D problem.
Mr. Shays. Is it your testimony that he never sent e-mails
from outside the White House to the White House? He sent e-
mails back and forth from outside and inside? I mean, clearly
you're not saying that to us.
Ms. Nolan. It's not my testimony. I have no idea what his
practice was.
Mr. Shays. So do you want to withdraw the statement you
just made implying----
Ms. Nolan. I wouldn't like to withdraw it, sir, but I'm
certainly happy to be more specific. E-mail written by Mr.
Caplan in the EOP would have been captured by an ARMS search,
as I understand the ARMS system.
The second thing I would like to say----
Mr. Shays. If he sent them outside, they wouldn't be
captured.
Ms. Nolan. No sir, they would. It's only e-mail that came
into the complex. That's exactly what I mean about how
difficult it is to understand this problem.
Mr. Shays. If he sent them from outside to in.
Ms. Nolan. If he sent them from outside to in during the
relevant periods, they would not have been captured by ARMS.
Unless--but they may have been left on the server, they may
have been captured because they were forwarded or because they
were replied to with history.
The other thing I wanted to say about these numbers is that
I understand that the numbers refer to how many incoming e-
mails there were on somebody's server, not necessarily how many
incoming e-mails had not been captured by ARMS.
Mr. Shays. So your point is that the number is going to be
less, and I agree with that. I mean, you may find that this
number of 246 will be reduced because you have an e-mails found
in individual PCs. You may find it's reduced because you have
e-mails found attached to sent e-mails with history. You find
it reduced because e-mails found in printed files. You may find
it reduced because e-mails retrieved from back-up tapes. All of
that may be true, but given the extraordinary number of e-mails
they're probably going to be thousands and thousands and
thousands that aren't.
Mr. Burton. Mr. Shays, we'll get back to you. We are now
going to the long-suffering Mr. LaTourette.
Ms. Nolan. May I make something clear, sir?
Mr. Burton. Sure.
Ms. Nolan. The left column, as I understand it, is total e-
mail; and the column under the name on the record we're looking
at, as I understand it, is unrecorded e-mail.
Mr. Burton. Before we go to Mr. LaTourette, I just want to
clarify one point that you made. You said that a contract had
been signed and that it was going to take approximately 6
months and that they were going to be going through these e-
mails in batches, starting with the most current and going
backward, is that correct?
Ms. Nolan. The timing of what e-mails will go through or
what back-up tapes has not been determined yet, sir. It is
correct that a contract was signed this week and that----
Mr. Burton. Who will make that determination?
Ms. Nolan. We will--the counsel's office will work with the
various investigative bodies and the Office of Administration
who's administering the contract.
The first thing they have to do is get the back-up tapes on
a system, as I understand it, and figure out what dates they
reflect and that kind of thing. We just don't have that
information yet.
Mr. Burton. We'll need to talk to you about that later.
Mr. LaTourette.
Mr. LaTourette. Thank you, Mr. Chairman.
Ms. Nolan, I was out of the room after the votes. Did you
find the information that Mr. Waxman's question--that is, how
many e-mails from the Office of the Vice President have been
turned over?
Ms. Nolan. I haven't gotten that answer yet, Mr.
LaTourette.
Mr. LaTourette. When you do do that, could I add a couple
of additional requests, that is, that in--that sort of you can
tell us how many were from the Vice President himself, Mr.
Gore. And, two, if you could supply to the committee in writing
the names of the three e-mail users who have accounts created
after 1997 but who are not being captured by the ARMS system
from the Office of the Vice President--if you could supply that
to the committee, I would appreciate it.
Here as I have been listening that the problem that I
continue to have and I think some of my colleagues continue to
have is that--over this assertion that when Mr. Haas does this
manual search that everything that he finds is duplicative.
Here's why I have trouble with it.
Mr. LaTourette. The reason that this problem became--people
became aware of it at all was Mr. Barry finds two--one side of
a conversation that Monica Lewinsky is having with someone in
the White House. And so not within the White House complex is
this missing e-mail, that is, the one that's come in, that's
how this problem came about. So for someone then to go on to
the server and say that you dredged up, with the name of
Lewinsky or Betty Curry or whatever, you dredged up this entire
body of information, that can't be right because the problem is
the stuff that was coming in isn't there any more.
And the reason is, just to go one step further, when we
were talking to Mr. Haas, he said that when the White House got
a document request they would ask for people--for instance, if
there was something relative to your computer, could you please
check your hard drive and see what's located there. But if you
deleted it before the end of the business day, when the server
kicks in to run the back-up tape, it's gone. I mean, it's
nowhere unless it's been captured by ARMS, and these things
weren't captured by ARMS. So they are just gone.
And that's the difficulty that I think that we're having
when you say that it is duplicative. And I just want to turn
your attention to----
Ms. Nolan. Mr. LaTourette, may I just mention that it is
gone, unless, as I said, it was forwarded or replied to with
history and that kind of thing.
Mr. LaTourette. Again, I'm sort of computer stupid, but I
know that at the end of every day when I shut down my Microsoft
exchange or whatever it is, it deletes everything in my deleted
section, they're gone, and then the server in my office backs
things up at five o'clock every night. So anything that I've
deleted from my computer during the course of the day isn't
backed up anywhere, it's gone, you're right, unless I've
maintained it or forwarded it or done something else.
But to suggest that that happened to all of them I think is
not--doesn't comport with what the reality of the user system
is.
If you could look at an exhibit that we've marked WH-3----
Ms. Nolan. Let me find it.
Mr. LaTourette. Sure.
Ms. Nolan. I have it.
Mr. LaTourette. Do you know who the author of that document
is, WH-3?
Ms. Nolan. They were drafted by Dimitri Nionakis, an
associate counsel.
Mr. LaTourette. All right. And, specifically, if I could
turn your attention to the beginning and something on page two
called the Affect on Searches to Respond to Subpoena Requests.
About the, oh, the second question under that: ``but if you
didn't search these e-mail, you haven't really complied with
all the subpoena requests.''
The answer is: ``that isn't really accurate. When we search
for responsive materials, in addition to the ARMS search, all
individual users are told to search their own computer records.
So a search should have covered everything on the server at
that time, including any undeleted incoming e-mails.'' Which is
what we've been talking about, any undeleted incoming e-mails.
The next question is: ``what if they were deleted before
the search of the server?''
And then the answer is: ``then it would be the same as
someone tossing out a piece of paper that they didn't need
anymore.''
``did you search the server to see if they were still
there?''
And then this question is the one I want to--the answer is:
``as we've told congressional committees and independent
counsel, the server could only be searched manually, and we
don't have the time or the funds to perform manual searches for
every subpoena request.''
And this document was prepared for what, the White House
counsel's office?
Ms. Nolan. It was prepared as talking points, I believe,
for press discussions. It only stayed in draft. We didn't use
it. So we never finished it.
Mr. LaTourette. But the fact of the matter is, in response
to subpoenas or requests, be it from a court or a congressional
committee, as I understood it, a memo would go out and say,
hey, we've gotten a subpoena, please search your hard drives.
And people would look at their hard drives. But if they weren't
there, we wouldn't find them. But there was no obligation then,
nor was anything done to search the servers because of the time
and expense.
Ms. Nolan. Yeah. It seem like that there was some confusion
about that.
I'd like to try to clarify it if I can. I am not sure my
computer expertise is any different from the one you said you
have.
When an EOP user turns on his or her computer, there are e-
mail accounts, there are word processing accounts. The e-mail
accounts--my e-mail, when I open my computer and turn it on and
go to my e-mail, all that e-mail actually resides on the
server. It doesn't reside in my hard disk on my PC. But if I'm
told to search my e-mail, I go to my e-mail account and search
that e-mail. It physically resides on the server, but to me and
to any average, normal person, I think, it looks like that is
the e-mail on my computer.
So there's a technical difference between what's on your PC
and what's on your server but not a real-life difference to
people who are doing the searches of their own computers.
Mr. LaTourette. If I could just ask one more question, Mr.
Chairman.
This is the point. I think you're exactly right, and you do
appear to have as much knowledge as I do about computers, but
that stuff is on the server. It's not on your computer after
you've gotten rid of it.
In other words, if you sent me an e-mail, I open it, I
write back to you, but then I delete that string, that
correspondence, it may be on your server and my server--not
mine if you have sent the e-mail--but it's no longer on my
computer, and there's no way I can retrieve that from my
computer.
Ms. Nolan. If I delete an e-mail, I'm deleting it from the
server as well as from my computer. There's no difference.
Mr. LaTourette. Unless--OK, unless--I would say this.
Unless you left it at the end of the business day, the system
backs up.
Ms. Nolan. Then it's on a back-up tape, sir, but it would
not be on the server anymore.
Mr. LaTourette. OK. My time's up. I'll come back later.
Mr. Burton. OK. Mr. Barr.
Mr. Barr. I'd like to yield time to the gentleman from--
where is it? Somewhere in the Midwest, Ohio?
Mr. LaTourette. It's Ohio, Mr. Barr. It is right on top of
Georgia almost. And I thank the gentleman for yielding.
I want to talk a little bit about something we were talking
to Mr. Mark Lindsay about when we was here last week, and that
is, he talked about a prioritization list. In other words,
although what was the matter with the system didn't apparently
come to Mr. Ruff's attention, according to what he's told you,
Mr. Mark Lindsay had a very good understanding of, that this
was a two part problem. One is, and they called it stopping the
bleeding, that is, to make sure that all incoming e-mail was
captured by the ARMS system, and that's what cost $600,000, and
they worked real hard on them, and some people said they called
it project X after the X files and all that other business.
But the second part was the reconstruction of all of the
stuff that hadn't been captured in over 2 years, and Mark
Lindsay understood that, and he indicated that he had a series
of meetings with people, and this was sort of like when one of
those honey-do lists that, OK, we have to do this with our
computers, we have to reconstruct the e-mails that we didn't do
to put them into the ARMS system, we have to do that. And I
think he used the word mission-critical. He said that there was
a list established that identified mission-critical things that
needed to be done.
One thing that he recalled was there was a Cabinet meeting,
apparently, and the Vice President said, you know what, there's
going to be a poster child for Y2K non-compliance, and I'm
going to tell you right now, it's not going to be the White
House, and so you guys get your act together and make sure
we're all squared away.
So Mr. Lindsay spent a lot of time getting Y2K compliant.
He did a lot of other things, but he told us last week that he
knew that this was a problem, but he didn't do anything to
reconstruct this MAIL2 server problem because it wasn't
mission-critical. Do you have any knowledge of that whatsoever?
Ms. Nolan. I have knowledge of something around that, Mr.
LaTourette.
Mr. LaTourette. Why don't you tell us what you know?
Ms. Nolan. That--it is my understanding that the Office of
Administration made a determination that it would first do all
necessary Y2K compliance and then begin the reconstruction of
the e-mail. It's my understanding that they thought of it as a
historical matter, a Presidential records historical matter and
Federal records, and they were really thinking of Federal
records, I think, and that the Office of Administration,
therefore, did not see this as something that had to be done
immediately.
Mr. LaTourette. All right. Knowing what we know today as we
all sit here and the knowledge that you've gained, that
probably wasn't the smartest decision in the world in terms of
it was something that needed to be done to adequately respond
to subpoenas and other requests for documents from the White
House, didn't it? I mean, we're not unclear on that?
Ms. Nolan. I think there was a disconnect between those who
were doing the searching for subpoenas and those who were
handling the computer issues, yes, sir.
Mr. LaTourette. I think that's right. And one of the things
that came up in the hearing that--it's not comical because
it's--again, there was a lot going on with this administration
in terms of people wanted documents and were entitled to
documents relative to investigations, legitimate
investigations.
One of the things that--there's a document, I think it's
labeled exhibit 80, that at the time that people were being
told that this wasn't mission-critical and we were going to do
other stuff, Northrop Grumman was directed to get the White
House Christmas card list in order rather than reconstruct the
problem with the MAIL2 server. That's right, right?
Ms. Nolan. I'm sorry, sir. I hadn't seen that document
before.
Mr. LaTourette. OK. Well let me--maybe if the fellow who is
helping you can get out exhibit 80.
[Exhibit 80 follows:]
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[GRAPHIC] [TIFF OMITTED] T9621.482
Ms. Nolan. Yes.
Mr. LaTourette. And if we can go to--it's a multipage
document, and I think I'd like you to go to page 4, and that
indicates that the Lotus Notes team continued the development
of the holiday card application, and they made a couple of
presentations on August 24th they developed to EOP management.
And who is the Executive Office of the President's management
team that the holiday card package would have been presented
to?
Ms. Nolan. The management of the Executive Office of the
President is the Office of Administration. I don't know what
team.
Mr. LaTourette. OK. Then on August 26th they made a second
presentation of how swift these Christmas cards were going to
be to Ada Posey, who was the director of the Office of
Administration, is that right, or at least according to exhibit
80?
Ms. Nolan. That's what it says there.
Mr. LaTourette. Did you have any knowledge as to how much
money the Christmas card package cost the White House to get
that up to speed but we couldn't reconstruct the missing e-
mails? Do you have any idea what it cost?
Ms. Nolan. I don't know anything about that.
Mr. LaTourette. Is that something you could find out for us
and perhaps get back us to about?
And at the same time, sadly, the President has been quoted
in the press saying that, you know, this is going to cost a lot
of money to do this. And if people knew how much time and
money--and I just find it to be a little odd that we're being
told that there wasn't enough money, there wasn't enough time,
some people didn't even know there was a problem, but
apparently we did have time to make sure that our Christmas
cards got out that particular year rather than responding to
subpoenas from relevant courts of jurisdiction and no less than
three committees of the U.S. Congress.
And I thank you, Mr. Chairman.
Mr. Burton. The next gentleman that we're going to hear
from is Mr. Horn, but before we go to Mr. Horn I want to
clarify one thing regarding Mr. LaTourette's questioning. You
said they thought of it as historical. Who is they?
Ms. Nolan. The Office of Administration, sir.
Mr. Burton. The Office of Administration. What was the name
of the person?
Ms. Nolan. Sir, I think we were talking about Mr. Lindsay.
What I meant was that they were thinking of the reconstruction
issue as one that had to be done for historical purposes.
Mr. Burton. But not of an immediate nature or anything like
that?
Ms. Nolan. I believe, sir, this is where the disconnect or
miscommunication was, that he--he believed that the counsel's
office understood the nature of the problem and was handling
anything with subpoenas. The counsel's office did not. I think
that's what happened, sir.
Mr. Burton. Well, Mr. Lindsay and Ms. Crabtree, according
to the people from Northrop Grumman, were very concerned. The
people from Northrop Grumman said that they felt like they were
in jeopardy of their jobs, and some even jail, if they said
anything even to their spouses, some of them said. So for you
to say that they only thought of it as historical really kind
of boggles my mind.
Ms. Nolan. I'm sorry, sir. I wasn't talking about the
entire problem. I was talking about doing the reconstruction--
when the reconstruction needed to be done by.
Mr. Burton. Mr. Horn.
Mr. Horn. Thank you very much, Mr. Chairman.
Let me ask you a series of questions that maybe can clarify
in some of our minds the problem of the server and the e-mail
and the complexity of it. As I understand it, the White House
e-mail users delete their own e-mail, don't they, when they are
tired of it?
Ms. Nolan. Yes, sir, they can delete their own e-mail.
Mr. Horn. And that doesn't go through a server, does it?
Ms. Nolan. It resides on the server until they delete it.
Mr. Horn. OK. But they have the control of bringing that
message back and getting rid of it?
Ms. Nolan. They have control of deleting it. They don't--
once it's deleted, they don't have control of getting it back,
no, sir.
Mr. Horn. In fact, they're encouraged because of the
computer space restraints, isn't that it, the old problem of
not enough memory?
Ms. Nolan. Yes, I think that's right, not to retain too
much e-mail on the server.
Mr. Horn. So when individual computer users search their
computers in response to a subpoena they aren't necessarily
going to find all the responsive e-mails on either the computer
or the server. Where are they? Let's assume something was
there, where is it likely to be found? On the server or on that
computer or both?
Ms. Nolan. Sir, they're the same thing for purposes of an
EOP user. The user turns on his or her computer. To get to your
e-mail all you're really seeing is what's on the server, your
account on the server. So what you see on your computer--unless
you actually save it to the hard drive, what you see on your
computer is what's on the server.
Mr. Horn. Are there other areas that they can park messages
besides that server that relates to----
Ms. Nolan. You could save it to the hard drive, as I
understand it, sir.
Mr. Horn. OK. The hard drive that's related to that
computer directly?
Ms. Nolan. That computer.
Mr. Horn. All right. But are there other places in the
White House where they can put some of these messages? Say they
didn't want to delete them because they might use them sometime
and want them and yet they could delete some from the server,
let's say, is there another server around? Is there another
system around where they can plant that message? What's your
experience?
Ms. Nolan. I don't think so, sir. I'm not sure I understand
the question, but if I do----
Mr. Horn. The question is very simple.
Ms. Nolan. If I do, you could print out the e-mail, you
could save it in paper file. The ARMS system, when it operates
as we understood it to operate, would have captured it, and it
would always stay in the ARMS system, but if the ARMS system
isn't working, then other than sending it electronically
somewhere else, just forwarding it or printing it out, I'm not
aware of any other place to keep it.
Mr. Horn. Well, a lot of people would do, as you say, a
printout because they might want to say this is there and it's
under my nose, in my desk and that kind of thing.
To your knowledge, when the request for the subpoenas came
in and we needed some of that and other investigations needed
some of that by either keyword name or whatever or a date
period when something happened--and we're talking here really
back certainly to 1996-1998 and when you go into Waco, it gets
back to 1993, but it might have been something said between
1996 and 1998--so how did the counsel's office deal with that?
Did they say, look, here are some of the keywords and let's
print them out if they're on your disk? How did it work with
most people?
Ms. Nolan. The counsel's office would send a directive to
the affected entities in the EOP complex directing that people
search their files, whether in paper form, computer form or any
other form, and then in addition--so each individual would be
responsible for looking for those requests, and we would
generally just indicate what it is that the subpoena has
requested, what the document request is. And then, in addition,
a White House lawyer would work with IS&T to develop a keyword
search to search electronically on the ARMS system.
Mr. Horn. Now, did that happen for what period, where you
say ran a tape and then you searched the tape with a keyword
index?
Ms. Nolan. As far as I know, there was no searching of
tapes. The ARMS system is an on-line retrieval system, and so
that would be searched, and people would look at their
individual paper files or computer files.
Mr. Horn. I would think that one of the problems here is
that the counsel's office or the Office of Administration,
working with the counsel, because they would know how the
computer system works, that they would be able to lay out a
pattern as to how you get that information, and I would think
they would say to everybody, if you're on the system and you're
involved with this name or that name, print it out, and they
didn't do that, did they?
Ms. Nolan. When there was a document request, people were
directed to search their--for computer records, if they found
them, they would print them out and provide them to the
counsel's office for production.
Mr. Horn. Does the counsel send them back and say, this
isn't what is subpoenable? Or what was the counsel's role in
all this?
Ms. Nolan. The counsel's office then looks through material
to determine if it's responsive to the subpoena and either
produces or notifies the committee if there are privilege
questions of what records it has. But when people do searches,
they often come up with things that would have the right
keyword or the right name but aren't related at all to the
subpoena request, especially when you get into some of the
broader ones, and so the counsel's office role is to determine
if documents are responsive.
Mr. Horn. It sort of comes to mind that it seems to me the
counsel is at the point of where they can take evidence and
just get rid of it because they have got the print, they say,
oh, well, that isn't what they want, bang, good-bye to it. So
did they send it back to some of the people with the servers
and the computers so--and who was to take it off the particular
drums, if you will, for want of another word? Who would take
that message off the server when they'd done the printout? And
what was the pressure to sort of get sudden memory by sort of
moving in on the disk and getting more space and with it goes a
lot of messages? How much did that occur? Any occurrence of
that, that you know of? Did people just get a big laugh out of
it?
Ms. Nolan. Mr. Horn, I am not aware of anything that would
suggest that the counsel's office gets rid of documents. It
produces thousands and thousands and thousands of them. It is
true that the EOP like, as far as I'm aware, any organization
I've ever been a part of routinely encourages people when
server space gets low to delete unnecessary e-mail, to save e-
mail that they still need, but that's routine. There's nothing
the least bit nefarious about that, sir. That happens in every
organization.
Mr. Horn. Does that happen on a 6-month routing there where
they say loosen up the thing?
Ms. Nolan. I have been there I think almost 7 months. I
don't know if we've gotten such a notice in the time I have
been there. I could check and see when the last one was.
Mr. Horn. Do you know from 1996 up did they do that or did
they increase the amount that they wanted wiped off the
computer or the server?
Ms. Nolan. It did happen at some period, but I don't know
how often, sir. I just don't know.
Mr. Horn. Can you sort of find out and let us see some of
those memos that say for the sake of more memory we'd like you
to get rid of messages you don't need to have there?
Ms. Nolan. I know we have produced samples of those. I'll
try to make sure that we have all of them, sir.
Mr. Burton. The gentleman's time has expired.
Mr. Shays.
Mr. Shays. Ms. Nolan, I want to just clarify a little bit
better why you didn't come and tell this committee when you had
a briefing in January about the problem. What did you learn
from the Washington Times story of February 15th? What did you
learn about then that you didn't know before? It seems to me
the only thing you really learned was that there was someone
who had gone public. What did you learn?
Ms. Nolan. Sir, what I learned when the filing was made in
the case was that there might--that there was--I then learned
from OA staff that there was a continuing situation in which
incoming e-mail was still not on ARMS.
Mr. Shays. Let's forget the continuing. The bottom line
was, there was still e-mails that may be pertinent to some
independent counsel, special counsel, investigative committee.
You knew that before, so that would be relevant.
Ms. Nolan. No, sir, I did not.
Mr. Shays. You did not know what?
Ms. Nolan. I did not know that there were e-mails that
would have been pertinent that had not been produced or could
not be produced.
Mr. Shays. It is your testimony before this committee that
this problem of a MAIL2 configuration that, when you were
briefed, that there were--it was in that briefing you were told
there were no outstanding e-mails that hadn't been forwarded to
the committee?
Ms. Nolan. I was briefed----
Mr. Shays. It's a stretch.
Ms. Nolan. I was briefed, sir, about an issue that they
were going to do reconstruction for the Presidential or the
Federal Records Act. I did not understand at the time it was a
very----
Mr. Shays. What didn't you understand? I don't understand
why you wouldn't understand. The bottom line was, there was
this bottomless pit of e-mails that simply weren't being
recovered.
Ms. Nolan. I was not told that there was a bottomless pit
of e-mails that weren't being recovered.
Mr. Shays. So let's just say some e-mails.
Ms. Nolan. I was told that there had been a problem. They
were reconstructing or going to reconstruct----
Mr. Shays. Reconstruct means that they needed to capture
these e-mails that were still outstanding. Why wouldn't the
committee have been told that you were trying to reconstruct--
--
Ms. Nolan. I did not understand that, sir.
Mr. Shays [continuing]. So you could find the e-mails? I
don't get it.
Ms. Nolan. I understand you don't get it. I don't know how
to say this a different way or to say it uninterrupted, but
what I have said, and it is my testimony, that I was given a
briefing, it was in a meeting for a post-presidency transition
issue. It was very brief, and it was that there was a problem.
They were--they did discuss reconstruction. I did not
understand----
Mr. Shays. I understand what reconstruction means. What is
reconstruction? I just want to know what reconstruction means.
Ms. Nolan. Can I be permitted to finish what I'm saying
first, sir?
Mr. Shays. Sure. But then tell me what reconstruction
means.
Ms. Nolan. I will finish what I'm saying, and then I will
answer your question, sir, but I don't find that I can answer
your question if halfway through it you ask me another
question. I feel like I'm not able to tell you what I know. You
obviously choose not to believe me. I can only testify what
happened and what I know.
Mr. Shays. Don't lecture me. Just tell your story. What's
your story?
Ms. Nolan. Sir, this is my testimony.
Mr. Shays. What is your testimony?
Ms. Nolan. My testimony is that I was given a briefing by
several people from the Office of Administration on January
19th, I believe is the date. It was regarding a number of post-
presidency transition issues. At that time, they informed me
about a MAIL2 and letter D anomaly or problem, I believe is
what they called it. I believe I was told that they were
reconstructing, and my understanding of reconstructing was that
they had tapes somewhere that they were going to put on a
different system.
I did not understand at that time and I am confident that
other people in that meeting did not understand at that time
that there had been or was an ongoing problem with regard to
ARMS searches for subpoenas. It seems very clear now that those
were the same problems. It was not clear to me in that very
brief meeting on January 19th that that was the case.
Mr. Shays. But reconstruct sounds like they've got a
problem. It means something to the effect that they don't have
certain e-mails and they have got to reconstruct them. It's
your testimony that you did not realize that there were e-mails
that were not being made available? Is that your testimony?
Ms. Nolan. Mr. Shays, that's what I've testified, yes, sir.
Mr. Shays. OK. So now tell me tell me what you learned
afterwards.
Ms. Nolan. They were telling me about a Federal records
issue, about Armstrong compliance, which, as I've testified, is
not--does not--Armstrong itself does not apply to the White
House and Presidential records. I did not understand this to be
a problem affecting White House searches of documents.
Mr. Shays. And your testimony is that everyone else in the
committee--in that briefing had the same impression you had?
Ms. Nolan. No, sir. I think the people who did the briefing
from the Office of Administration understood----
Mr. Shays. So is the Office of Administration the White
House?
Ms. Nolan. It's part of the Executive Office of the
President, sir, yes.
Mr. Shays. I'm being a little facetious. So the White House
knew, correct?
Ms. Nolan. Sir, you asked me what I knew. That's what I can
testify to, and it's not--it is my understanding that I and no
one else in the counsel's office who were responsible for
producing documents knew.
Mr. Burton. The gentleman's time has expired, and I will
yield my time or part of my time to the gentleman.
Mr. Shays. Just a minute. You are testifying that people in
the White House knew, you just didn't know?
Ms. Nolan. People in the Executive Office of the President,
sir, knew. I don't know that anyone in the White House office
knew.
Mr. Shays. The Executive Office of the President, I make
that as an assumption that that is part of the White House.
You're not in the White House building.
Ms. Nolan. The White House is part of the Executive Office
of the President.
Mr. Shays. So are we going to get into a semantics argument
that the White House didn't know because it was just the
administrative part of the White House?
Ms. Nolan. Sir, you asked me who I knew knew. I'm telling
you--you can characterize that as the White House. I am telling
you that the White House counsel's office and, as far as I
know, no one in the White House office knew. People in the
Office of Administration and the technical people clearly did
know. That's the disconnect I've testified to.
Mr. Shays. OK. And I just will make this last question. It
is your testimony that the people in the Office of
Administration knew but that no one in the counsel's office
knew; and, therefore, because you all didn't know, you had no
obligation--the White House had no obligation to notify the
various committees that there were documents that they said had
been given that hadn't been given.
Ms. Nolan. It's my testimony, sir, that the people
producing documents did not know that there was a problem, and
I believe, but I don't know, you had the people from the Office
of Administration here last week, that they did not understand
that the counsel's office and the people producing documents
did not know.
Mr. Shays. Since I'm on the chairman's time I want to yield
back, but just let me ask you this. The people who are
producing documents, define to me who they are.
Ms. Nolan. The people in the counsel's office, sir.
Mr. Shays. Why did you say the people producing the
documents instead of just saying the counsel's office?
Ms. Nolan. I had said that before, sir. I wasn't sure you
had accepted that as a description, so I was trying to give
another.
Mr. Shays. OK. Thank you very much.
Mr. Burton. I'll just take a few minutes here.
You know, I think, with all of the discussion, people lose
track of where we are. We had a hearing last week. Five people
from Northrop Grumman said that they felt intimidated when they
started talking to Ms. Crabtree and Mr. Lindsay about the
problem with the missing e-mails. Three of them said they
thought might even be threatened with jail. One of them very
directly felt that. Another said she'd rather be insubordinate
than go to jail. So there was a definite fear.
Mr. Lindsay took this information to Mr. Podesta. They
wrote a memo. Mr. Podesta explained the situation to Mr. Ruff.
I believe Mr. Lindsay--there was apparently a meeting, and it
just seems inconceivable that the chief counsel to the
President would not know the severity of the problem. It just
doesn't--it boggles my mind that he wouldn't know.
Now when Mr. Ruff left, and we're going to have Mr. Ruff
before the committee, I feel confident, because you can't
recall--I mean, he evidently hasn't given you all the
information. But it seems to me that when Mr. Ruff left office
he would have passed on to his counterpart who was taking over,
you, Ms. Nolan, some of the problems that the chief counsel's
office had to deal with, and it seems like he would have given
you a fairly comprehensive analysis of this problem with the e-
mails.
And, yet, when we've talked to you today, it feels like--I
feel like you really didn't know all that much about it. You
had a cursory knowledge. Is that correct?
Ms. Nolan. Sir, I had no knowledge until the January 19th
briefing.
Mr. Burton. So Mr. Ruff never even talked to you about it?
Ms. Nolan. Mr. Ruff, as I've testified, I don't believe
understood there was a problem. I think he would have told me--
had he realized there was such a problem, I am confident Mr.
Ruff would have told me.
Mr. Burton. Unless perhaps he thought that the problem
wasn't going to raise itself. You know, the thing is, Mr.
Lindsay knew there was a problem; Ms. Crabtree knew there was a
problem, very serious problem; the people from Northrop Grumman
knew there was a problem because they felt threatened. Mr.
Lindsay talked to Mr. Podesta and we believe with Mr. Ruff. I
cannot believe----
You know, Mr. Lindsay said he didn't remember the phone
conversation, and yet 2 days later he participated in writing a
very comprehensive letter to Mr. Podesta, a memo, going into
all the details. I just can't believe that there's this big
disconnect over something as significant as hundred of
thousands of e-mails, especially in view of the fact that a
whole host of committees, independent counsel and even the
Justice Department had subpoenaed all of the documents
pertaining to a whole host of different investigations. And for
everybody to say, we didn't know, we didn't think it was that
severe, and the chief counsel of the President who is supposed
to be watching out for him and advising him on legal matters
wouldn't be well aware of this. It doesn't wash. There's
something there that's not washing, and I guess that's the
problem that I feel.
And I see my time has expired.
Mr. Barr.
Mr. Barr. Ms. Nolan, let me try and get very specific here,
if you would, with me, please. On what day did you realize that
you were going to have to do something to make sure that in
responding to subpoenas from the Congress information had not
been withheld?
Ms. Nolan. I don't know what day it was, Mr. Barr. What I
know is that at some point last month I realized that document
productions that the counsel's office had done would have
included searches of ARMS in which incoming e-mail could not
have been searched and that we would need to review what
document productions we did and figure out what we were going
to do and could do about it.
Mr. Barr. It was not until last month?
Ms. Nolan. In February, sir.
Mr. Barr. OK. After the newspaper articles came out?
Ms. Nolan. After the filing was made, yes, sir.
Mr. Barr. After what?
Ms. Nolan. The filing was made in the case, sir, yes.
Mr. Barr. In the civil case?
Ms. Nolan. That's right.
Mr. Barr. OK. Are you familiar with the various civil cases
that have been filed against the White House or Executive
Office, whatever, by Judicial Watch, including my case against
the administration?
Ms. Nolan. I'm aware there is a case, sir, your case, and
I'm aware there are other cases. I don't know that I could list
all of them.
Mr. Barr. One of the theories on which my case was filed
and is still an active case is violation of the Privacy Act.
Pursuant to discovery requests, a great number of documents,
files as it were, on me, about me that have been accumulated by
various folks at the White House were submitted pursuant to
discovery. That case was one that was filed under the Privacy
Act. If in fact your position prevails that the Privacy Act
does not cover files that the White House maintains on various
individuals, why then would the discovery have gone forward and
those files furnished pursuant to discovery?
Ms. Nolan. As I understand it, sir, that is the legal issue
in the case. The White House and Executive Office of the
President have an obligation to provide documents in a case so
that the courts can decide the issue.
Mr. Barr. Are you all essentially then trying to have it
both ways? I'm not quite sure. If you all felt secure in your
legal interpretation, and it's one that I disagree with because
it flies in the plain language of the Privacy Act which does
not carve out any exemption for the White House or the
Executive Office of the President for e-mails or for hard paper
files, why would you all have actually furnished--pursuant to a
Privacy Act case, why would you all have furnished discovery
instead of just relying on the position you've enunciated, that
the Privacy Act doesn't even apply to us?
Ms. Nolan. Mr. Barr, that case was filed in a court of law.
We were requested to make production of documents, and we did
so. That I think is exactly what we do when we get subpoena
requests and document productions. We assert and continue to
assert that we do not believe that the White House is subject
to the Privacy Act, but we have never asserted that that
enables us to ignore a lawful subpoena. We do searches, and we
make a good-faith effort to comply with those subpoenas, and we
did so in that case.
Mr. Barr. Now, though, the White House, since the case has
been reassigned from Judge Lamberth, a judge that takes a
somewhat different view of the Privacy Act and various other
laws as they relate to the President, now that that case has
been assigned to a different judge, the White House has taken a
very different position and is resisting. Do you see any
inconsistency there? In other words, it seems to fall--the
White House response to Privacy Act cases and discovery therein
seems to fall not so much on principled grounds as it does on
whether the case is before a judge that will hold y'all's feet
to the fire.
Ms. Nolan. Mr. Barr, I don't think that's right. I think
that--I just don't know the particulars of this case or the
other litigations. Obviously, other lawyers in the office deal
with those on a day-to-day basis, but I think that it's very
important to understand that, as this committee knows, there
are times when the documents are produced, there are times when
there are privileges, there are times when we discuss different
timing for productions. There are various reasons why
productions are made when they are and, depending on what the
legal argument is, whether the legal argument is an assertion
that documents don't have to be produced or the legal argument
is on the merits itself. So I can't speak to that particular
case, but I just wanted to make that clear.
Mr. Barr. You mentioned there are White House attorneys
that follow these cases, that work them. The attorneys--I think
we established this earlier. I just want to make absolutely
certain. The attorneys at the White House counsel's office that
are handling, for example, the Filegate case--cases are
Michelle Peterson and, previously, Sally Paxton; is that
correct?
Ms. Nolan. That's correct, sir.
Mr. Burton. The gentleman's time has expired.
Mr. Shays is next.
Mr. Raben, have you obtained the names of the lawyers we
were talking about?
Mr. Raben. I have current information. I don't have the
name of the line attorney that probably worked directly with
Mr. Barry, but the director then and now of the Federal
programs branch, which he apparently came from, is a gentleman
named David Anderson. I'll continue to work or I'm waiting for
if we can determine that.
Mr. Burton. David Anderson would deal with that area?
Mr. Raben. Yes.
Mr. Burton. He was one of the line attorneys, was probably
working with Mr. Barry, and you will have that name for us?
Mr. Raben. I will try to get you that name. I don't exactly
know what the holdup is. We would obviously--I will get you
that name as soon as I know it. We will have line attorney and
pending criminal investigation matters to talk about.
Mr. Burton. If it's possible, we'd like to have that today.
Mr. Raben. I'll try my best, sir.
Mr. Shays. I'm going to yield in 1 second to Mr. Barr; and,
Ms. Nolan, I should always give you an opportunity to answer
questions. So I think your rebuke of me was a fair one on that
side.
I want to ask you a question, though. It is a hypothetical,
and we both may agree on this, and I'm going to read it slowly.
If you were a White House counsel on June 19th, 1998, and
if you were informed of a potential omission in subpoena
compliance and if you were told at the time the admission might
involve hundreds of thousands of e-mails, would you feel
obligated to inform investigative authorities?
I'd be happy to read it over again if you'd like.
Ms. Nolan. I would certainly want to know more about the
problem and make sure that there was a problem, yes, sir. I
don't know that from that meeting.
Mr. Shays. No, and I don't either. Nothing's been
established.
But if you were a White House counsel on June 19th and if
you were informed of a potential omission in subpoena
compliance and if you were told at that time the admission
might involve hundreds of thousands of e-mails, would you feel
obligated to inform investigative authorities?
Ms. Nolan. I would feel obligated to look into the matter,
sir.
Mr. Shays. And then what?
Ms. Nolan. Well, if I were informed that there was a
potential problem, I looked into the matter and was told, no,
the problem's fixed and there apparently wasn't a problem, I
would not feel obligated.
Mr. Shays. And if you found there was a problem?
Ms. Nolan. If I found that there was a problem involving
hundreds of thousands of e-mails----
Mr. Shays. Right.
Ms. Nolan [continuing]. Then I would do what we're doing
now, which is trying to work with the investigative bodies and
figure out how to get those e-mails restored, sir.
Mr. Shays. Let me ask you one last point as it relates to
this, though. If you thought it was a potential problem and you
looked at it, how many weeks or months do you think it would
make sense for you to look at it before you stepped forward? In
other words, should it go on for months if you thought there
was a problem? Wouldn't you feel obligated to say we think
there may be a problem and we're looking at it and we don't
have an answer yet? You wouldn't feel obligated?
Ms. Nolan. Sir, I would want to know there's a problem and
know the general scope of it. I don't know how long that would
take.
Mr. Shays. If it took 6 months you wouldn't necessarily
even feel an obligation?
Ms. Nolan. That--in the absence of sort of knowing what the
facts are of those 6 months, I don't feel like I can answer
that.
Mr. Shays. OK. I would yield my time to Mr. Barr.
Mr. Barr. Thank you.
Mr. Chairman, earlier the ranking member had expressed some
rather large degree of concern over the cost of the various
investigations. I'd like to ask unanimous consent that the
following article dated March 24th of this year from the Copley
News Service regarding the fact that the President's latest
trip to India and Bangladesh and other exotic locales cost in
excess of $50 million. His trip last--couple of years ago to
the African subcontinent cost close to $43 million. His 10-day
trip to China cost close to $20 million; and a 4-day trip to
Chile, the bargain of the group, was $10.8 million. Knowing
that Mr. Waxman pays very close attention to the record in this
case and is constantly trying to reconstruct it, I'd like that
placed in the record.
Mr. Burton. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T9621.136
[GRAPHIC] [TIFF OMITTED] T9621.137
Mr. Barr. I'd also like to ask unanimous consent that
William Safire's column in the New York Times today, entitled
``The 100,000 E-mail Gap,'' and the Washington Times article by
Jerry Seper today, also, entitled, ``Judge Says Clinton
Violated Privacy Act,'' be placed in the record.
Mr. Burton. Without objection, so ordered.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T9621.138
[GRAPHIC] [TIFF OMITTED] T9621.139
[GRAPHIC] [TIFF OMITTED] T9621.140
Mr. Barr. Thank you.
Mr. Raben, I think we've established that David Anderson is
an attorney at the Department of Justice handling these
matters; is that correct?
Ms. Nolan. I understand him to be the director of the
Federal programs branch.
Mr. Barr. Does James Gilligan, who I believe is a trial
attorney over in the Civil Division, work with him, for him or
is he a superior of his?
Mr. Raben. I believe that he is a subordinate of his. I'll
check that and let you know.
Mr. Barr. OK. And whose responsibility is it--it's my
understanding that James Gilligan coordinates and communicates
on a fairly regular basis involving these cases to the--to Ms.
Peterson; is that correct?
Mr. Raben. To Ms. Peterson?
Mr. Barr. Ms. Peterson, Michelle Peterson at the White
House counsel's office.
Mr. Raben. That I have no idea.
Mr. Barr. Maybe I should direct that to Ms. Nolan. Do they
communicate with each other?
Ms. Nolan. That's my understanding, sir, yes.
Mr. Burton. The gentleman's time has expired.
I want to get back to the questions that we were talking
about regarding Mr. Barry.
Mr. Raben, you said that you don't know anything about
anything that a line attorney may have said to him relevant to
saying you don't have to worry about signing this--so you don't
know that.
Ms. Nolan, how did the White House counsel's office let
this affidavit be filed if there was any question about it
being false? This is the affidavit we talked about regarding
Mr. Barry. Do you have any knowledge about that?
Ms. Nolan. I don't, sir, except to say that, based on my
other testimony, I don't believe the White House counsel's
office would have thought that it was false; and, as I said
earlier, I don't believe it is false.
Mr. Burton. Well, that's your opinion, and I honor that.
We'll talk to Mr. Ruff and others about that later.
I prepared a criminal referral regarding this affidavit
asking the Justice Department to investigate Mr. Barry for
perjury. Do you agree, Mr. Raben, that any charges against Mr.
Barry should also include an investigation of the role of the
Justice Department and White House lawyers in drafting the
affidavit?
Mr. Raben. Do I agree that any investigation of Mr. Barry
should include----
Mr. Burton. Since they helped prepare the document.
Mr. Raben. I can't agree or disagree with that assertion. I
hope this is helpful. I understand that--I know that a criminal
investigation has begun, and I don't know that any fact which
has or will be asserted is off the table in that investigation.
Mr. Burton. Well, if the Justice Department did help him
prepare the document and did knowingly help him perjure himself
by signing an affidavit that was incorrect, which we believe it
is, how can they investigate themselves? I mean, the Justice
Department has taken this under advisement and they're
conducting a criminal investigation. Part of that will involve,
I presume, Mr. Barry since he was one of the principals.
Mr. Raben. Answering the broader of the very important
question that you're raising now and I have heard you raise in
your opening statement and in press accounts, how can the
Justice Department investigate itself, I think you raise a very
good question about how we deal with overlapping inquiries or
civil matters and what is now a criminal matter. And I
understand that it is not uncommon, in fact, it is somewhat
frequent, where a representation of a client agency, which is
done under statutory authority requirement, not simply
authority, is proceeding and information comes forward which
necessitates the initiation of a criminal inquiry. When that
criminal inquiry is initiated, the common procedure, I have
learned, is to seek a stay of those aspects of the civil
representation that may be implicated by the criminal
investigation, and that is what has gone on here.
Mr. Burton. So they're asking for a stay in the civil case
while they conduct their criminal investigation?
Mr. Raben. I think that would be an overstatement. My
understanding of the pleading which was filed is staying some
aspects of the civil litigation. I don't believe that all
aspects of the civil litigation have been requested to be
stayed.
Mr. Burton. When did the Campaign Finance Task Force learn
about the White House e-mail problem?
Mr. Raben. I don't know. I know that that will be--I
presume that will be one of the subject matters of the inquiry
itself which has been initiated, but I simply don't know. I do
know I saw----
Mr. Burton. So you wouldn't know also how the Campaign
Finance Task Force found out about the problem either?
Mr. Raben. I don't know.
Mr. Burton. Well, if you could get answers to these
questions, it would be helpful.
Mr. Raben. You have submitted--I know that you have sent to
the Department a series of letters, one of which enumerates
these and other similar questions, and we will answer those
questions.
Mr. Burton. I hope it's expeditiously.
Mr. Raben. I hope so, too, sir.
Mr. Burton. Would you know if the task force ever attempted
to interview any of the Northrop Grumman contractors about the
problem?
Mr. Raben. I wouldn't know.
Mr. Burton. We have learned that task force attempted to
contact Betty Lamberth 2 weeks ago, but we don't know about any
of others.
I guess the next question is superfluous, because we need
to know why the task force waited until now to contact the
Northrop Grumman contractors. So I guess we'll have to find out
who the attorneys were that were involved in this and ask them.
In a recent court filing, Justice Department lawyers said
that they knew about the problem for over a year. If that's
true, why did the Campaign Finance Task Force do nothing for
over a year? I mean, if they have known about it for a year, I
wonder why they haven't done anything. They didn't do anything
until I sent a letter to the Attorney General. Do you have any
answer to that?
Mr. Raben. I know that you posed that question in the
letter, and we will respond to it.
Mr. Burton. Mr. Horn.
Mr. Horn. I was curious in the last dialog between us as to
were there other places in the White House where messages could
go off one's e-mail or one's server; and, to your knowledge, do
you know of any other part of the White House where there might
be messages parked from that period, 1993 through 1996 through
1998?
Ms. Nolan. I know of no messages parked, sir. I do know
that back-up tapes were made of the server at various times and
that those back-up tapes are going to be reconstructed and
searched.
Mr. Horn. OK. So, in other words, they had back-up tapes I
take it when the subpoena went down there, and you're saying
now that the system is up and running, that there will be back-
up tapes?
Ms. Nolan. No, sir. There have been back-up tapes made.
Those back-up tapes are of the server. They're a picture of the
server at a particular time. They're not searchable. They are
being reconstructed so that they can be searched and so that
they can be placed on ARMS.
Mr. Horn. Now, what do you have to do to reconstruct them
in order to get a search?
Ms. Nolan. Sir, I could not tell you that. The Office of
Administration has retained an outside contractor who will do
that work. I don't understand the details of how it has to be
done.
Mr. Horn. Well, I think the FBI is one that can do the work
if anything was done on the mainframe, and then the question
would be--is, can you tell if there are erasures or not?
Practically every company, university in the country takes a
back-up tape every day, just in case you have got a surge, an
earthquake, a power failure or whatever it is; and so I'm just
curious why it took so long to get to this. What motivated
them? Was it the President's library and they wanted to check
things to be on deposit or what was the motive of this?
Ms. Nolan. Sir, Mark Lindsay from the Office of
Administration at the time and the Assistant to the President
for Management and Administration was here last week, and I
understand he testified that the Office of Administration made
a determination to make sure they were Y2K compliant. Y2K
compliance went through February 29th, and then they were to
begin the reconstruction.
Mr. Horn. And that's when you really became aware of it?
Ms. Nolan. I became aware of it somewhat earlier in
February, except for the briefing I was given in January in
which I did not fully become aware of it but where I was told
about a MAIL2 and letter D problem.
Mr. Horn. Now, with reference to prior questions you had on
this, it seems to me an outgoing counsel of the President would
have a list on a memorandum of either finished, partially
finished or unfinished business. Now, did Mr. Ruff ever pass
that on to you and tell you about the subpoenas that--and the
impact they would have?
Ms. Nolan. It's my understanding, sir, that Mr. Ruff did
not understand there was a problem with any subpoenas. He did
not tell me that there was a problem, which is consistent with
my understanding that he didn't understand there was a problem.
Mr. Horn. Well, usually, a new person in a job would start
going down the line with your associate or your deputy or your
assistant counsels and say, you know, what do you do and etc.
Did you do that when you entered on that job?
Ms. Nolan. I did that, Mr. Horn.
Mr. Horn. And did you learn anything about the tapes in
that experience?
Ms. Nolan. It's my understanding that no one in the
counsel's office knew that there was a problem with subpoena
compliance.
Mr. Horn. What you're telling us is if we ever have to ask
to redo what goes on at the White House under subpoena, that
the counsel's office is not the one to go to. It seems to me, I
guess, the Office of Administration, which is a statutory
office within the Executive Office of the President, and
they're the ones that know where you can find something on a
computer, and I take it the counsel can't find it.
Ms. Nolan. Sir, we found what was on the ARMS system, I
believe. There were things that were not on the ARMS system,
and we were not aware of that.
Mr. Horn. Well, let me read you this quote yesterday at the
press conference. The President stated that the White House
had, ``turned over everything that had been found,'' and that
subpoenaed e-mails were not surrendered because they were
located, ``in a different system.'' To what system was the
President referring?
Ms. Nolan. I think the President meant that those e-mails
were not on the ARMS system, not that they were in a different
system.
Mr. Horn. Now, has that system been searched or is it a new
system and not an old one or what?
Ms. Nolan. The ARMS system is the automated, retrieval
system, that's the system in which certain e-mails were not
captured or recorded. Those are--we have the back-up tapes
which are not--were not designed, as I understand it, for
record retrieval, but we're going to have a contractor come in
and enable us to retrieve those records on the back-up tapes.
Mr. Horn. Now, is the President hooked up to that e-mail
system so he--you've got what, how many accounts, 500 or so
accounts?
Ms. Nolan. I don't know the number of accounts in the White
House office. It would probably be about that, but I'm not
sure.
Mr. Horn. Well, I would think the President would have a
very secure e-mail with some of his people in terms of, let's
say, national security. Is there such a tape operation, server
operation that's separate from what you have described?
Ms. Nolan. Except for a couple of occasions with staff to
learn particular computer things, I don't think the President
uses e-mail, sir.
Mr. Horn. Well, that's probably a smart idea, and I don't
use them either, but the fact is that there's probably another
system around there for security reasons, and the question
would be, were anything under these subpoenas that could be
classified in a security operation and has that system been
looked at?
Ms. Nolan. I don't know the answer, sir, to, in particular,
requests whether that system would have been looked at with
respect to classified documents. Is that what you mean, sir?
Mr. Horn. Yes. I would like to know how many systems are
there.
Mr. Burton. The gentleman's time has expired.
Ms. Nolan. The NSC does do a search, sir, I'm told, of its
system.
Mr. Horn. Then there are any others besides NSC? That makes
sense to me. And what you've got here basically is to----
Ms. Nolan. I'm told, sir, there is no other classified
system, that that's----
Mr. Horn. No other classified system or no other system?
Ms. Nolan. The other systems--the only automated record
systems are the NSC and the EOP-wide one called ARMS.
Mr. Horn. OK. So everything that you or your staff in the
counsel's office know you're telling us now in response to
these questions, is that true?
Ms. Nolan. I'm sorry, sir?
Mr. Horn. Well, do any of your staff know something beyond
this because you weren't here?
Ms. Nolan. We've--I've talked to many people on my staff,
and I've had my staff talk to many people who were here who are
no longer in the counsel's office. We have not found anybody
who knew--had this information, which I am saying I don't
believe the counsel's office had.
Mr. Burton. Mr. Barr. The gentleman's time has expired.
Mr. Barr. Was the President ever informed about the problem
with e-mail system?
Ms. Nolan. Mr. Barr, yes, the President was informed, I
believe, within the past month, yes.
Mr. Barr. That was the first time that the President was
informed about this problem?
Ms. Nolan. As far as I know, yes, sir.
Mr. Barr. Would anybody have any different knowledge?
Ms. Nolan. I don't think so.
Mr. Barr. Was the Vice President ever informed about the
problem with the e-mail system----
Ms. Nolan. I think also within the past month, sir.
Mr. Barr [continuing]. After the news stories broke.
What was the response of the President when he was informed
about this problem?
Ms. Nolan. Umm, sir, the President wanted to make sure that
we had produced everything we could produce and that we were
looking into what to do.
Mr. Barr. What was the response of the Vice President?
Ms. Nolan. I don't know, sir.
Mr. Barr. Who briefed the Vice President on this?
Ms. Nolan. Somebody on his staff, sir, but I'm not sure if
it was his counsel or not.
Mr. Barr. Was Mrs. Clinton ever informed about the problem
with the e-mail system?
Ms. Nolan. I don't know, sir. I did not inform her. I'm not
aware that anyone did other than there have been news accounts
about it.
Mr. Barr. Would that have been Ms. Posey? Would she have
informed her about that?
Ms. Nolan. All of this would have occurred only in the past
month. Any--I'm not aware that anyone in 1998 informed the
President, the Vice President or the First lady.
Mr. Barr. On January 28th of this year, a letter was sent
to committee counsel, our committee counsel, Mr. Wilson--
actually to Mr. Hollis, but our counsel, regarding the Waco
matter. And that letter says, quote, the scope of our recent
search for Waco-related materials encompassed all items or
documents in any way relevant to the events occurring at the
Branch Davidian compound in Mount Carmel outside of Waco,
Texas, in February to April, 1993.
Ms. Nolan. Do I have a copy of that, sir?
Mr. Barr. You're asking me if I have a copy of it?
Ms. Nolan. The committee provided me with copies of
documents. I don't know if----
Mr. Barr. Mr. Lindsay seems to have a pretty full library.
I can make a copy here but do you have one? Exhibit 60.
[Exhibit 60 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.353
[GRAPHIC] [TIFF OMITTED] T9621.354
Ms. Nolan. Exhibit 60. Thank you.
Mr. Burton. Exhibit 60.
Mr. Barr. It shows a carbon copy to you.
Mr. Burton. Would you see if you can get another copy for
Ms. Nolan?
Mr. Barr. I'm having a copy made right now. We should have
another copy up here, I would think.
Ms. Nolan. Mr. Raben has it, sir.
Mr. Burton. You found it. OK.
Mr. Barr. The question is, how can that assertion be true
when y'all's testimony is that you don't know whether any
relevant e-mails came into the White House during the August
1996, November 1998, timeframe?
Ms. Nolan. At that time, Mr. Barr, I did not know and I do
not believe anyone in my office knew that there was a problem
with retrieval of certain e-mails in ARMS searches.
Mr. Barr. So that may or may not be a complete, full and
accurate statement----
Ms. Nolan. Which statement is it that you're referring to
specifically, now that I have the document, sir?
Mr. Barr. The one that I read.
Ms. Nolan. I'm sorry. I didn't have the document at the
time so I would just like some help finding it.
Mr. Barr. I was going to. I was in the middle of a
sentence. And it appears on page 2, the third paragraph, the
scope of our recent search for Waco-related materials
encompassed all items or documents in any way relevant to the
events occurring at the Branch Davidian compound in Mount
Carmel outside of Waco, TX in February to April, 1993.
Ms. Nolan. Yes, sir. That was the scope of our search at
that time, yes, sir.
Mr. Barr. OK. And the question is, how can you all make
that statement--that assertion? It seems to me that it's not
true because you don't know whether or not during this
timeframe here, August 1996 to November 1998, whether any
relevant e-mails came into the White House.
Ms. Nolan. Sir, the statement is what the scope of our
search was. I don't believe we've ever been able to say that we
have found every possibly relevant document. We make a good-
faith effort to search.
Mr. Barr. That's what it says: All items or documents in
any way relevant to the events occurring at the Branch Davidian
compound.
Ms. Nolan. The scope of our search encompassed all items or
documents. That's what we searched for.
Mr. Barr. It's a circular argument.
Ms. Nolan. We can never be sure, Mr. Barr, that we found
everything. We make a good-faith effort and a very vigorous
effort to find things. But we can't be sure that we've ever--I
don't think anyone can ever say that I'm absolutely sure I
found everything. And that letter doesn't say that.
Mr. Barr. Do you all do this with courts also?
Ms. Nolan. Sir?
Mr. Barr. Do you all do this with courts, add a footnote to
everything that you all say?
Ms. Nolan. There is no footnote, sir.
Mr. Barr. There is. You just told me that, despite the
plain language of this, that you have sent us all items or
documents in any way relevant to the events occurring.
Ms. Nolan. Sir, that is the not the plain language. I don't
see the words ``sent you'' in there. What I want to make clear,
because I don't want this to be about a little, you know, sort
of word game. That's not what it's meant to be. We identified
what the scope of our search was. More importantly for these
purposes, we were not aware that in the scope of that search
there might be e-mails that would not have been retrieved from
that search.
Mr. Barr. Despite the fact that we have established that
going back to at least 1998 y'all knew there was a problem with
retrievable e-mails?
Ms. Nolan. We knew there had been or might have been--at
least Mr. Ruff informs me that he knew there had been or might
have been a problem, that a second search was done, that the
documents that were found in that were duplicative and he did
not believe----
Mr. Barr. It was only a partial search.
Ms. Nolan. Sir, I'm telling you what Mr. Ruff knew and
understood in 1998.
Mr. Barr. We'll get Mr. Ruff in here to tell us what he
knew or should have known. What I'm saying, though, is the
argument that y'all are using--and it does get back to the
parsing of words and what the technical sentence structure is,
something that is so endemic to this administration, what
you're saying is a circular argument. You're saying whatever we
give you is what we give you, and we may or may not know that
there's something that we're not giving you.
Ms. Nolan. That's right, sir. That's how any document
production is done.
Mr. Burton. The gentleman's time has expired, but we'll get
back to him in just a little bit.
Would you like to take a break for about 5 minutes? That
would be fine. We'll try to wrap this up as quickly as we
possibly can.
Stand in recess for 5 minutes.
[Recess.]
Mr. Burton. We will try to reconvene here and wrap this up
in the next half hour, if it is at all possible. I appreciate
your patience today with all the questioning, but I think it
really is important that we get as many answers as possible
today.
Let me start off and try to get some of the questions I
need.
First of all, I ask unanimous consent that a set of
documents which may be used as exhibits in today's hearing and
which have been shared with the minority be entered into the
record and, without objection, so ordered. We've already
cleared that with the minority.
[Note.--The referenced material is provided at the end of
this hearing.]
Mr. Burton. When the White House belatedly produced videos
to the Justice Department in 1997, Mr. Raben, the Attorney
General stated that she was mad and that she was very disturbed
that the tapes had not been produced in a current fashion and
that it had taken so long after the production of the tapes to
let them know, the Justice Department. Was the Attorney General
mad or angry when she found out about the missing e-mails and
had never been--that had never been produced to the Justice
Department? Was she angry about that or do you know?
Mr. Raben. I couldn't characterize her thoughts on it.
Mr. Burton. When the Attorney General found out there were
embarrassing Waco flare tapes, she had U.S. Marshals seize them
from the FBI. Did she ever consider sending Marshals to seize
the back-up tapes from the White House?
Mr. Raben. I don't know what she's considered in her mind,
sir. I know that she is interested in being as responsive to
you as possible.
Mr. Burton. Is there any concern in the Campaign Finance
Task Force that the Justice Department lacks the ability to
enforce any of its document requests to White House or other
agencies? Does it lack, in your opinion, the political will to
enforce those document requests?
Mr. Raben. If they're concerned within the Campaign Finance
Task Force?
Mr. Burton. Yes.
Mr. Raben. I don't know what concern the Campaign Finance
Task Force might have. I know that they've initiated a criminal
investigation.
Mr. Burton. In the Filegate lawsuit, Justice Department
lawyers characterized the claim that there were missing White
House e-mails as offensive. The Justice Department lawyers also
stated that it is unduly burdensome to perform broad-based
searches of archived and backed-up e-mails, especially e-mails
stored in non-word-searchable format. Given that that's the
position of the Justice Department in that case, how can the
Democrats now turn around and investigate the White House?
Mr. Raben. The characterization as offensive is something I
would never do. I think that was a mistake.
The second part was the undue burden to a particular e-mail
retrieval search. I have no--I don't have the technical
expertise to offer my opinion as to whether it's unduly
burdensome. I think----
Mr. Burton. You disagree----
Mr. Raben. Excuse me. I'm sorry.
Mr. Burton. You disagree with the term that was used by the
Justice Department, that the missing e-mails were offensive?
Mr. Raben. I never write in that fashion.
Mr. Burton. Do the lawyers on the Campaign Finance Task
Force believe that it's offensive to suggest that the White
House or any other entity under investigation would withhold
documents or have you talked to any of them about that?
Mr. Raben. I'm sorry. I missed the question. I'm sorry.
Mr. Burton. Do the lawyers on the Campaign Finance Task
Force believe that it's offensive to suggest that the White
House or any other entity under investigation would withhold
documents?
Mr. Raben. I really can't characterize what they believe. I
think that the people that I have met are hard-working,
dedicated, mostly career people who go about their business.
Mr. Burton. Well, they were talking about it being
offensive that the White House would withhold documents. So you
don't have any feeling--you really haven't talked to anybody on
the task force about any of this?
Mr. Raben. I haven't heard them--the few individuals I have
interacted with I haven't heard them editorialize or offer
rhetoric like that.
Mr. Burton. Ms. Nolan, you wrote a letter to us and in it
on page--the last page of it.
Ms. Nolan. What number is that, sir?
Mr. Burton. I don't know that there's a number on this, is
there? It's the March 17th letter you sent to me.
Mr. Burton. Thank you, sir.
Ms. Nolan. I just had one question about this. On the last
paragraph of that letter you say, ``the process may be
performed in batches, i.e., several back-up tapes at a time. If
reconstruction were possible, we would likely begin the process
with the November 20th, 1998, and June 1st, 1999, back-up
tapes, approximately 15 tapes total. This process would entail
extracting the unrecorded e-mails from the back-up tapes and
putting them on a server. This estimate . . .''
And then you go into the timeframe and everything. It says,
``this estimate does not, however, include the possible
restoration of OVP back-up tapes as well as the time and funds
needed to perform other steps in the process such as awarding a
competitive contract, searching ARMS printing search results,
manually reviewing them and producing responsive materials.''
One of the concerns that we have is that some of the batch
that we're concerned about start back when this problem
occurred in September 1996. And if you start with the batches
at the front end, i.e., the ones most recent, then if you run
into a logjam, the chances are or problem--the chances are this
might not be solved or we may not get the documents until well
after the November election, which might be fortuitous for
those who may be involved. And so what we wanted to know is
assuming--and you said the contract has been signed.
Ms. Nolan. Yes, sir.
Mr. Burton. Assuming a contract has been signed, we would
like to know if these e-mails that could be relevant to our
investigation, the campaign finance investigation, which would
be the ones going at the beginning of the problem in September
1996, would be the first batch to be looked at.
Ms. Nolan. Mr. Chairman, before I answer that, you said
something which reminded me I wanted to say that there had been
a question earlier, and the contract does include restoration
of the OVP back-up tapes. So thank you for reminding me of
that.
Mr. Burton. OK.
Ms. Nolan. Second, we, as you know, have several
investigative bodies we will be dealing with. The reason we
talked about the November 1998, and June 1999, back-up tapes
first is because they took a picture of the server with
everything on the server right before they restored--started
restoring on a going-forward basis incoming e-mail to ARMS. So
that seemed like it might be the quickest way to get a
comprehensive picture of what the server looked like. It would
be anything that remained on the server, whether it was from
1995 or 1996 on that day.
Then the contractor--as I understand it, the contractor is
going to have to go through and figure out exactly what we have
back-up tapes of, what dates they are, which ones have e-mails
on it. We haven't made any determination about what order to do
that in. I hear what you're saying, sir. We're just going to
have to work out in terms of timing how we can get this done.
Mr. Burton. We're checking with some computer people as
well, and it may very well be that these computer tapes could
be handled in a much quicker fashion than 6 months, and so----
Ms. Nolan. If that's the case, I would be delighted, sir.
We really have, you know--we originally heard 18 months or 3
years. I said I wanted us to find a way to get it done quicker.
The OA has made part of the contract that the contractor is to
provide innovative ideas for how to do it; and if we can move
up the date, that would be great.
Mr. Burton. We'll be talking to you about that.
Mr. Barr.
Mr. Barr. Ms. Nolan, just to close the loop on my prior
questioning regarding this letter of January 28th, that is
approximately I think 10 days after you were briefed on this
matter. I believe you testified that it was about--was it
January 18th?
Ms. Nolan. I think it was the 19th. It might have been the
18th, sir. I'm not sure.
Mr. Barr. So you were aware of the e-mail problem at the
time this letter was written.
Ms. Nolan. Mr. Barr, as I testified, I was briefed about
some problem. I did not understand that it had an effect on e-
mail searches. So when the letter said--first of all, though, I
want to be sure that it's clear that what the letter said the
scope of our search is, what we looked for.
Mr. Barr. I mean, it's--you just keep going around in
circles on that. It's very self-serving.
Ms. Nolan. I did not know there was a problem, no, sir.
Mr. Barr. That is not what the letter says. But I
understand this administration. I still don't buy into this
argument that you all didn't know the scope of the problem. It
was something that was deemed very important and very serious
to the Northrop Grumman experts. And they briefed, did they
not, Mr. Ruff on this?
Ms. Nolan. I don't believe any of the counsel's office
people ever talked to the Northrop Grumman people, no, sir.
Mr. Barr. Mr. Ruff did not request a discussion with them?
Ms. Nolan. As I understand it, he received information from
Mr. Lindsay, Mark Lindsay, then general counsel of the Office
of Administration.
Mr. Barr. When did he receive that?
Ms. Nolan. Well, you know, some time in June 1998, sir.
Mr. Barr. What did he receive?
Ms. Nolan. Well, that--as I've testified, what I know is
that Mr. Ruff heard that there was a problem or might have been
a problem with an e-mail search. That OA then conducted a
second search. That second search showed that there, in fact,
were no missing e-mails. He did not understand that there was
any ongoing problem.
Mr. Barr. What did he receive from Mr. Lindsay?
Ms. Nolan. I believe he received a copy from Virginia
Apuzzo of the June 19, 1998, memorandum; and I believe he spoke
with Mr. Lindsay.
Mr. Barr. That memorandum wasn't from Mr. Lindsay.
Ms. Nolan. That was from Mr. Lindsay's superior, Virginia
Apuzzo.
Mr. Barr. I think Mr. Ruff received a large number of e-
mails from Mr. Lindsay. Mr. Lindsay testified last week he took
over to the White House counsel's office.
Ms. Nolan. Those were the e-mails that were the second
search which I am told turned out to be duplicative.
Mr. Barr. Is that what you meant when you said that Mr.
Ruff received some materials from Mr. Lindsay? Those documents?
Ms. Nolan. Those are the only documents I'm aware of.
Mr. Barr. So he received those from Mr. Lindsay.
Ms. Nolan. I don't know that Mr. Lindsay physically handed
them to Mr. Ruff.
Mr. Barr. You testified that he received something from Mr.
Lindsay. What did he receive from Mr. Lindsay? That's what I'm
trying to get at.
Ms. Nolan. Mr. Barr, what I know is that he received from
OA----
Mr. Barr. Just a few minutes ago----
Ms. Nolan. If I misspoke, I'm sorry. What I know----
Mr. Barr. I don't know--I don't know that you misspoke.
Ms. Nolan. I don't know either, sir. I'm just trying to
tell you what I know.
Mr. Barr. You told me what you know. You told me just a few
moments ago that Mr. Lindsay received something from--or Mr.
Ruff received it--from Mr. Lindsay. I'm asking what it was.
Ms. Nolan. Maybe someone could read that back to me, sir. I
don't know that I said that. What I said, I think, was that Mr.
Ruff received a briefing from Mr. Lindsay.
Mr. Barr. Briefing from Mr. Lindsay.
Ms. Nolan. Yes, sir.
Mr. Barr. OK. So your testimony now is not that he received
any documents from Mr. Lindsay.
Ms. Nolan. OA provided documents. I believe that Mr.
Lindsay provided them to the counsel's office. I don't know
what I----
Mr. Barr. You don't know who got them either.
Ms. Nolan. That's correct, sir.
Mr. Barr. Nobody over there knows who got them.
Ms. Nolan. I don't know, sir.
Mr. Barr. We've established that.
Well, Mr. Lindsay doesn't remember who he gave them to.
Why do you take the position, contrary to the testimony
last week, that those documents that were sent over there, that
box of 1,000 or however many e-mails, was a complete search? It
was never a complete search.
Ms. Nolan. I have never said that sir.
Mr. Barr. How do you know that there weren't other
documents that were relevant to these subpoenas, such as the
Waco subpoena, such as the subpoenas from the independent
counsel, such as the subpoena from this committee?
Ms. Nolan. I have never said I don't know. I have said that
what I understood from Mr. Ruff, what he understood at a time
when I was not there, sir, what I understand from Mr. Ruff is
that he understood there was or might have been a problem. He
understood that a search had been done. I have never said it
was a complete search or what he understood about the nature of
the search. I don't know, sir.
Mr. Barr. Mr. Chairman, am I missing something here? Didn't
this witness just testify to that?
Mr. Barr. Maybe we should ask Mr. Waxman. He records this
stuff.
Mr. Burton. Mr. Barr, your time has expired. I'll be happy
to yield to you more time in just a second.
I would like to ask Mr. Raben if he's heard back from the
Justice Department about the attorney that worked on Mr.
Barry's sworn affidavit.
Mr. Raben. I have heard back. My understanding as of 5:13
is that the pool of attorneys that would have--could have
interacted with the gentleman's affidavit, as appears on the
public filings, Ann Weissman; James Gilligan; Elizabeth
Shapiro; Alison, I believe it's pronounced Giles, G-I-L-E-S.
There is another attorney on the filing Julia Covey, but their
understanding as of 5:13 is that she is not among the pool of
attorneys who would have interacted. But as I get more
information----
Mr. Burton. So let me have those names again, their full
names.
Mr. Raben. I will give it to you, but these are the
attorneys who appear on the public filings in the civil case.
David Anderson, as I said before, is the director of the
Federal programs branch. The other names that appear on the
filing, in addition to David Ogden and Wilma Lewis, are Ann
Weissman, James Gilligan, Elizabeth Shapiro and Alison Giles.
And except for Mr. Anderson I understand all of those to be
line attorneys in the Civil Division.
Mr. Burton. So what you're saying is one of those probably
is the one that worked with him on his sworn affidavit.
Mr. Raben. Our understanding, as of right now, is that at
least one--it's possible that more would have interacted.
Mr. Burton. OK. Well, the reason I ask is because we'll be
issuing subpoenas for them; and I want to make sure that we
don't unduly burden the others who may not have been involved.
Mr. Raben. I understand that. And I expect--I suspected
that you would send subpoenas to those people, and I expect
that we'll try to have conversations with you about our line
attorney policy and our pending criminal case policy.
Mr. Burton. Would both witnesses--both of you agree to
answer written questions put to you by the committee so that we
could include them in the record? And, if so, we'll hold the
record open for those answers. Is there any problem with that
with either one of you?
Ms. Nolan. No, sir. No problem.
Mr. Burton. Mr. Barr, do you have any more questions? The
counsel--we want to give the counsel some time. He has a few
questions that he would like to summarize with. If you have
more questions, go ahead.
Mr. Barr. One of the areas that we went into last week with
the other Mr. Lindsay was something that he used--he kept using
a term, and finally we asked him what was this term, ``mission-
critical project?'' Have you ever heard of that term?
Ms. Nolan. Not until today, sir, I don't think I've heard
it.
Mr. Barr. You didn't hear it last week? We spend quite some
time with him going over it.
Ms. Nolan. I did not. I saw some but not all of Mr.
Lindsay's testimony.
Mr. Barr. I yield back, Mr. Chairman, for counsel.
Mr. Burton. We'll now yield to the counsel for some
questions.
Mr. Wilson. Ms. Nolan, good afternoon. Mr. Raben, good
afternoon.
Ms. Nolan. Good afternoon.
Mr. Wilson. Just to clarify things for the record, you've
told us today that you had conversations with former White
House counsel, Charles Ruff, correct?
Ms. Nolan. Yes, sir.
Mr. Wilson. How many conversations have you had with Mr.
Ruff since the newspaper articles first made you aware that
there was a problem with the e-mail situation?
Ms. Nolan. I think two or three. I'm not sure. Two or
three.
Mr. Wilson. OK. Now just so we can be precise here, if you
would please tell us everything he told you about his various
exposures to this problem. What did he tell you?
Ms. Nolan. He told me that he was informed that there was
or may have been a problem with an e-mail search, that he spoke
with Mark Lindsay about it, that he--that OA had conducted a
second search and that, as far as he knew, that search had
shown that there were no missing e-mails and that he,
therefore, thought there was no problem.
Mr. Wilson. OK. Fair enough. With--the time that he spoke
with Mr. Lindsay, did he tell you whether other people were
involved and--tell us, was this a meeting that he had with Mr.
Lindsay or a telephone conversation?
Ms. Nolan. I know--I know he said that he met with Mr.
Lindsay, but I'm not sure.
Mr. Wilson. You know where he met with Mr. Lindsay.
Ms. Nolan. I don't.
Mr. Wilson. Do you know if anybody else was in the meeting?
Ms. Nolan. I don't.
Mr. Wilson. Have you reviewed any records in the last week?
We received records indicating that on June 19th Mr. Lindsay
had a meeting with Mr. Ruff and an individual named Mills. I
assume that's Cheryl Mills. Have you reviewed records about
meetings?
Ms. Nolan. I have seen that calendar entry, yes.
Mr. Wilson. What does that calendar entry mean?
Ms. Nolan. It means that at that time he had a meeting set
up with Mr. Lindsay and Ms. Mills. I don't know if he had it--
if all three people were present. I just don't know.
Mr. Wilson. It's fair to say you've not asked him whether
he actually did have the meeting with those individuals.
Ms. Nolan. He remembered that he had met with Mr. Lindsay.
I think he remembered that he had discussed it with Ms. Mills.
I did not ask if she was in the meeting at the time. I'm not
sure that she was.
Mr. Wilson. So since you've received the documents, you've
not asked him the question did you meet with Mr. Lindsay and
Ms. Mills on this issue?
Ms. Nolan. He had already told me that he had discussed it
with Ms. Mills.
Mr. Wilson. Did he discuss it with Ms. Mills at a different
time than he discussed it with Mr. Lindsay?
Ms. Nolan. I don't know the answer to that.
Mr. Wilson. So is that fair then to say that you have not
asked him whether he met with Mr. Lindsay and Ms. Mills at the
same time?
Ms. Nolan. At the same time? I don't believe I've asked him
that, no, sir.
Mr. Wilson. Fair enough. I guess the threshold issue here
is, you've told us what Mr. Ruff said. Do you believe Mr.
Ruff's story?
Ms. Nolan. I do.
Mr. Wilson. OK. I mean, the problem--it's been stated a
number of times and I have a few very specific questions about
the test search that was done, but the problem obviously for us
is that there were a number of employees who knew there was a
serious problem.
Within days of their elevating the problem to their
superiors, a memo was produced from an assistant to the
President to the deputy chief of staff to the President, who's
well regarded and is the current chief of staff to the
President. At an almost contemporaneous time, a briefing was
held where Mr. Lindsay explained the problem to Mr. Ruff. And
the problem that we're confronted with right now is almost
everyone seems to have understood the parameters of the problem
except Mr. Ruff. And so did Mr. Ruff give you any indication of
how it was that he did not become aware of the basic parameters
of this problem?
Ms. Nolan. I just want to say that I'm not at all sure that
everyone--it's clear to me from the testimony and from memos
that people began to understand the parameters of the problem.
It is not at all clear to me that everyone understood them at
all. And, believe me, when I started asking questions in
February of this year the--it wasn't clear to me that everyone
understood the parameters of the problem.
Mr. Wilson. Well, clearly, not every computer glitch
results in a memo to the deputy chief of staff and a
contemporaneous meeting with the counsel of the President. And
there was--as we learned last week, there are some differing
recollections, but there was great certainty as to what the
problem was.
Let me just read you a couple of statements that Mr. Barry
made in e-mails, and they were admittedly after the fact, but
Mr. Barry says in one e-mail, I feel that the records must be
recreated and any searches need to be reperformed if the
requesters feel it's necessary. This is a daunting proposition,
but I do not see any other alternative.
In another e-mail, Ms. Gallant, who was the Associate
Director of the IS&T Division, says, I also agree with Tony
about the new searches that will have to be done. We need
direction from OA counsel on that front.
And I'll leave this because I have some very specific
questions, but it seems very clear to us that there was a
concern that there was a universe of documents that had not
been searched for responsiveness to subpoenas. Which takes me
to, I guess, the real question. Mr. Ruff, you've told us, was
concerned that there was a search, and the search indicated
that there were no e-mails that had not been produced to any
requesting body, is that correct?
Ms. Nolan. I'm sorry. Could you repeat? I just want to make
sure that your characterization of what I've said is accurate.
Mr. Wilson. I guess this was my characterization. But there
was a search conducted by computer programmers Northrop Grumman
computer contract employees, and the search involved terms that
had Monica Lewinsky in them, is that correct?
Ms. Nolan. It was a search related to the Monica Lewinsky
investigation. I don't know what the terms were. I haven't seen
the search.
Mr. Wilson. That was my next question: What was the search?
Ms. Nolan. I don't know. Mr. Haas was here last week. He's
the one who did the search. As I testified earlier, I have not
seen what's on his F drive, what he saved of the search.
Mr. Wilson. Have you made any inquiries as to what the
search was?
Ms. Nolan. I have made inquiries. I have not yet determined
exactly what it was, other than related to the Monica Lewinsky
matter.
Mr. Wilson. At this point, you just don't know what the
search was, is that's a fair----
Ms. Nolan. I don't know what terms he used or what exactly
he was searching for, no, I do not.
Mr. Wilson. Do you know, as you sit here today, whether
this was a comprehensive search for all of the material about
Ms. Lewinsky that would have been requested by the independent
counsel?
Ms. Nolan. I don't know what the search was.
Mr. Wilson. OK. I guess it takes us to the real concern. If
you don't know what the search was, did you ask Mr. Ruff what
the search was?
Ms. Nolan. Mr. Ruff did not have any details for me. I
don't think--I don't know if he doesn't remember or if his
recollection is that OA took care of doing a search for these
e-mails. I don't know the details of it.
Mr. Wilson. And who requested the search?
Ms. Nolan. You know, I don't--that is one thing I don't
know. I believe counsel's office did, but I don't know if OA
said they would do it. I just don't know the answer.
Mr. Wilson. This is a matter of great importance for us for
the next few questions I'll ask. But have you asked anybody in
the counsel's office about this search?
Ms. Nolan. Yes.
Mr. Wilson. And what do they tell you? Did they request a
search?
Ms. Nolan. I don't recall whether the counsel's--I don't
recall hearing that anyone in the counsel's office requested
the search. I don't know if Mr. Ruff requested it. I just don't
know.
Mr. Wilson. The reason I mention this at this point and
believe that it's of great importance is because the search
that was actually conducted appears to be a very, very minor or
preliminary type of search. It appears to have involved a
request for documents that pertain to one individual and we
were told four other individuals. But it doesn't appear to be a
particularly all-encompassing search. Is this your
understanding of this particular Lewinsky search?
Ms. Nolan. That's my general understanding. As I said, I
haven't seen the search, but it's my understanding that Mr.
Ruff had been told there had been a problem or understood that
there was a problem with a particular search and that another
search was being done to see if there was a problem with that
particular search. So I don't know that anybody said anything
about an all-encompassing search.
Mr. Wilson. We were told by the employees when they did the
search they came up with three reams of documents. I originally
asked if that's about this many documents, and I was told it
was about this many documents. That's what we were told last
week.
Now the question is, if this was a very preliminary search
and it showed a fairly significant universe of documents, maybe
duplicative, maybe not, but a fairly large universe of
documents, did anybody--have you discussed with Mr. Ruff
whether he said maybe we better go back and do a comprehensive
search because there is a problem?
Ms. Nolan. No. As I've said, it's my understanding that
what was provided to the counsel's office--and I don't know if
what was provided was this amount or this amount. I don't know.
But what was provided to the counsel's office was checked
against what the counsel's office already had been provided.
Mr. Wilson. But let me----
Mr. Barr. Would counsel yield for just a moment?
I'm sorry, but with regard to the sort of--the line of
reasoning in the position that y'all are taking with regard to
this subpoena from this committee with regard to your
conclusion that however many documents there were here--and I
think we've established that there were quite a few subject to
the search that Mr. Haas conducted or was directed to conduct
and did conduct--that someone made a determination that they
were duplicates of others that had already been provided
pursuant to the subpoenas to the Congress. Was a similar
conclusion reached and conveyed to the courts in any pending
civil litigation that documents--none of these documents were
going to be furnished to the court because they were determined
to be duplicative by the counsel's office?
Ms. Nolan. Mr. Barr, it's my understanding that the
counsel's office determined that they had already produced
whatever those documents were.
Mr. Barr. So they made this determination that these
documents were duplicative and, therefore, for all purposes,
whether it was the independent counsel, a congressional
committee or civil action--and, therefore, none of them were
going to be produced because they already had been?
Ms. Nolan. It is, again, my understanding that Mr. Ruff
understood there was a problem with a particular search; and it
was that search that they were looking to see if there were
duplicative documents.
Mr. Barr. I'm not sure we're going to get anywhere on that.
But just with regard to the determination that you say was made
that, with regard to these documents that counsel is asking you
about now, that they were not furnished to anybody because they
were deemed to be duplicative, that applies to not only the
request from this committee, the subpoena, but to anybody else
that had asked for those, including the courts or the
independent counsel?
Ms. Nolan. I apologize, sir, maybe having been here for
this long I'm having trouble following, but I don't know the
question. There was a search done with respect to one subpoena
in one investigation. That was, as I understand it, what Mr.
Ruff understood there might have been a problem about. He
didn't understand that there was a problem about any other
search or any other investigation. So I'm just not sure how to
answer your question.
Mr. Barr. Weren't these documents subject to a number of
different requests, including but not necessarily limited to
the independent counsel, this committee, the impeachment
committee and possibly other civil actions?
Ms. Nolan. Documents that would have been responsive?
Mr. Barr. That relate, for example, to Ms. Lewinsky,
possibly Waco.
All I'm saying is, you're saying that Mr. Ruff made the
determination that, for purposes of one subpoena, these
documents that Mr. Haas uncovered were duplicative and,
therefore, they were not submitted pursuant to that one
subpoena.
Ms. Nolan. That's the only problem he understood might have
existed.
Mr. Barr. Were those documents then submitted to any other
outside requestor, such as the independent counsel, the party
to the civil action or the impeachment committee?
Ms. Nolan. I am sorry. I don't understand.
Mr. Barr. Maybe, counsel, you can ask with a little more
clarity.
Mr. Wilson. Let me just pick up on something you just said
here.
Mr. Burton. If the gentleman will yield. What they're
asking is, the duplicates, were they provided to anybody other
than----
Ms. Nolan. No, I think that the----
Mr. Burton. Once it was decided they were duplicates, you
didn't provide them to anybody.
Ms. Nolan. Not that I'm aware of, no. They were duplicates
with respect to a particular subpoena request by a particular
investigator--I believe the independent counsel. If those e-
mails were requested by another investigative body, the
counsel's office did give them already. But I don't know if
they were, sir. The duplicate search, however, as I understand,
it was related just to this one request.
Mr. Wilson. Let me pick up on that, if I may, because
everything you've said flies in the face of everything we've
been told. You just indicated that there was--what was taken to
Mr. Ruff was pursuant to a search request falling from a
subpoena. What we have been told--and disavow me of this error
if I'm wrong--what we were told is that individuals identified
a problem and did a test using a very prominent and in-the-news
name at the time to determine whether there were documents in
this vast universe of information that would be--that would
show that there was, in fact, a big problem.
And so, consequently, what we've been told is that there
was not a specific subpoena request trying to track down all
the information pertaining to Monica Lewinsky. We've been told
that there were requests made, that there was a test made to
see what was in this universe of documents on the server at the
time. And they used the name Monica Lewinsky and they used some
other names. But what you're telling us now is quite different.
I wanted to followup on the point I'm just making.
Ms. Nolan. Can I make clear that I'm telling you what I
understand Mr. Ruff understood at the time? I cannot tell you
what search was actually done, as I've said, or what terms were
used or how it was decided to do it. I don't know the answers
to that. So I don't think what I'm telling you is different.
I'm just telling you what Mr. Ruff understood at the time.
Mr. Wilson. Right. I appreciate that. That's why I asked my
initial question, and that's very helpful. But the search--and
I guess this goes to, you know, what happened in the meeting
with Mr. Ruff, trying to keep sight of the forest and get the
trees out of the way here. The search was a very, very
insignificant type of search. It wasn't the search, from what
we've been told, that White House counsel's office constructed
to determine what would be responsive to the Lewinsky subpoena.
It was just a simple search asking for information about
Lewinsky and some individuals. And to my way of thinking any
responsible lawyer would have looked at that search, seen there
was a lot of documents, even say we ought to do a really
thorough search, but that's not your understanding of this.
Ms. Nolan. It's not my understanding that there--I don't
know what Mr. Ruff knew about the search or the kind of search
it was. It's not my understanding that he knew it was, as you
characterize it, a simple search or that it even was a simple
search. I don't know, and I'm not able to testify about that.
Mr. Wilson. This is important to us because all day you've
been--represented that the Lewinsky documents were duplicative
and that went to the issue there's not really a big problem
here because these are duplicative documents.
Ms. Nolan. I have been representing what Mr. Ruff and the
counsel's office understood at the time, and I continue to
represent that. But I just want to make clear that that's all
I'm able to testify about. I wasn't there. I don't have any
independent understanding.
The Northrop Grumman employees who you had here last week,
who you were able to talk to, have been represented by Northrop
Grumman counsel. I've not talked to them. So my information is
as I've presented it. And I just want to be clear about what I
am testifying.
Mr. Wilson. OK. I understand. I just--to recapitulate, and
I'll move away from this in a moment, but the point I guess I'm
making is, our understanding--the search that was conducted was
conducted to show that there was a systemic problem, a
significant issue had arisen. A search was conducted that
showed, yes, there was that problem. And your testimony--and I
know you're telling us what Mr. Ruff has told you, but your
testimony is that Mr. Ruff did not perceive in the meetings
that he had that there was a systemic problem. And our
understanding is that everything that was done showed that
there was a problem with the system and yet it seems that
everybody but Mr. Ruff knew that there was a problem with the
system. And yet there is a disconnect here.
Ms. Nolan. There is a disconnect. I think I testified to
that. I think there's no question about that. That the people
who knew the technology knew things that the counsel's office
who are producing documents did not know. There's absolutely no
question there was a disconnect.
I do want to say again, though, that I don't agree with the
characterization that everyone else knew. I don't have any
information that suggests that's the case. Some people knew.
The technical people knew. The e-mails that have been referred
to throughout this day don't seem to have been sent beyond the
technical people.
And it is also true that certain people in OA, other than
the technical people who were sending the e-mails, did know
that there was a problem and have known that there was a
problem. That was--that disconnect occurred. There's no
question about that.
And the other thing I just wanted to mention is I don't
know Mr. Ruff had meetings. You referred to meetings. I'm aware
that he discussed this with Mr. Lindsay. I don't know, you
know, if it was in a face-to-face meeting, if there was more
than one discussion. I don't know that.
Mr. Wilson. I can understand that. But one of the problems
we've had is you've had conversations with Mr. Ruff and you
come here and you're not even sure if there were meetings on
this subject, which obviously means we have to go into the next
phase.
Let me leave that now, because there are two different
opinions on this matter at this point.
Earlier, a number of members had asked you questions about
when you first realized that something was wrong and that
something needed to be done, and we sort of danced around the
fact there was a newspaper article and there was a filing in a
civil lawsuit.
Ms. Nolan. I didn't mean to dance. I did not dance. If I
was dancing with someone, I was unaware of it.
Mr. Wilson. If you could try and pin it down with
specificity, when did you first know that you would have to go
back and reconstruct the e-mails?
Ms. Nolan. I can't pin that down with specificity. I did
not know there was a problem that would require us to
reconstruct until sometime last month for purposes of our
productions. I did know in January that OA was going to
reconstruct some things for Federal records. I just--and that
they were going to proceed with that. Sometime last month I
realized that it was a problem that would have affected our
ability to retrieve certain e-mails that were requested.
Mr. Wilson. When you learned of the problem, when it first
became apparent to you that there was this significant problem,
did you meet with the contract employees who--let me ask this.
Have you ever met with the contract employees who were
originally aware that there was a significant problem?
Ms. Nolan. As I've said, almost right away, those contract
employees were represented by Northrop Grumman counsel. We
tried to talk to their counsel several times. We weren't able
to talk with them.
Mr. Wilson. Well, I have a recollection of that because I
was very involved. The newspaper article occurred, and there
was a number of weeks before Northrop Grumman counsel was
retained. Did you make an effort in the interim to----
Ms. Nolan. We certainly talked to people in OA. I don't
know who people in OA talked to. But they--of course, the
contract employees--and I think there was testimony about this
last week. There are apparently quite strict rules about who in
the complex talk to contract employees and through whom, as I
think you know.
Mr. Wilson. It's correct to say then that, right after the
newspaper article from the Washington Times that basically
identified this problem came out, you did not in the first week
make an effort to talk to the contract employees. Is that a
fair characterization?
Ms. Nolan. I don't know. I just don't know.
Mr. Wilson. Well, I guess if you could please tell us when
you first did make--provide for the written record afterwards.
Ms. Nolan. What are you asking me to tell you? I'm sorry?
Mr. Wilson. When you first made an effort to reach out to
the contract employees to understand.
Ms. Nolan. I will see if I can get that information.
Mr. Wilson. Just a couple last questions. One last subject.
This is due diligence here, because it's a different type
of document that we've had I guess misunderstandings with or
problems with. So I'll ask you about telephone records so that
we can get a definitive answer about telephone records.
It's been reported in the press--and, obviously, that
doesn't make it right--but it's been reported in the press that
there are White House telephone records dating back to 1993.
Are you aware of the existence of any telephone records related
to any telephone calls going either into or out of the White
House?
Ms. Nolan. I'm not.
Mr. Wilson. OK. Is this a subject that you've ever had any
discussions about?
Ms. Nolan. Certainly asked with reference to when this e-
mail issue came up. I was also made aware that there had at
some point been a claim about the telephone records. I asked
one of the attorneys in my office who had handled the case,
again, Michelle Peterson. She informed me that at the time she
had spoken with Sheryl Hall about the matter, who told her that
there was no truth to that allegation. We determined that there
were no such records. That's what I thought about it.
Mr. Wilson. Who first made you aware of the allegations
that there were telephone records?
Ms. Nolan. I don't know. It came up at some point after I
was aware of this e-mail issue. I just don't know who it was.
Mr. Wilson. Are you aware of whether any of your
predecessors in the White House counsel's office have attempted
to definitively determine whether there are telephone records--
and I'm being as broad as humanly possible here--any type of
record in any form whatsoever relating to any type of telephone
call, either coming out of or going into the White House?
Ms. Nolan. I'm not aware. I can tell you that when I was an
associate counsel, at some point between 1993 and 1995, whoever
was counsel then, I believe it was Judge Mikva, asked me
whether we had the capability to retrieve certain telephone
records. I made an inquiry to the Office of Administration and
was told we did not and conveyed that to Mr. Mikva. That's the
only thing I know about it.
Mr. Wilson. Well, I'll leave this line of questioning.
But if you could provide for us a definitive answer. I know
you've told us right now that you're not aware of any records.
But if you can check this and provide a definitive answer after
the hearing as to whether there are any records in any format
whatsoever of telephone calls going into the White House or
coming out of the White House, if you could provide that for
the record it we would be greatly appreciative. Will you do
that?
Ms. Nolan. I certainly will look and see. We will get back
to you on that. I will provide them if I can, yes. So I will
look and give you an answer to your question.
Mr. Wilson. Thank you very much.
Mr. Burton. Thank you, counsel. Counselor.
Mr. Schiliro. Ms. Nolan, in the interest of time, I will
not ask you a series of questions. The only question I have for
you is, do you have some information that you are willing to
share or ready to share with the committee today but nobody
asked you the right question? And so if there's a question that
you're ready to answer, but we just haven't figured out how to
ask it----
Ms. Nolan. I don't think so. I think I've----
Mr. Schiliro. Nothing else you want to say?
Ms. Nolan. No, sir.
Mr. Schiliro. Thank you, Mr. Chairman.
Mr. Burton. Let me conclude by asking one last question.
You keep using the term ``subpoena request.'' My counsel
has noticed this time and again. And if you look at the
documents we served on you, they're just called subpoenas. Why
do you call them ``subpoena requests?''
Ms. Nolan. I don't know. It's just how I refer to them.
Mr. Burton. I just wondered if maybe there was a different
legal definition that the White House applied to our subpoenas
because they're supposed to produce documents or appearances.
You don't have any----
Ms. Nolan. No. No. I--subpoena sometimes does have a number
of different elements of it. And it may be sometimes that
somebody talks about a subpoena request as an element of a
subpoena. But I am not sure that I use those terms consciously.
Mr. Burton. All right. I want to thank you for your
patience and your ability to sit there that long and answer all
the committee's questions. You have been helpful. And we will
continue to pursue this matter.
We stand adjourned.
[Whereupon, at 5:45 p.m., the committee was adjourned.]
WHITE HOUSE E-MAILS: MISMANAGEMENT OF SUBPOENAED RECORDS--DAY THREE
----------
WEDNESDAY, MAY 3, 2000
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:10 a.m., in
room 2154, Rayburn House Office Building, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Gilman, Morella, Shays,
Ros-Lehtinen, McHugh, Horn, Mica, Souder, LaTourette, Barr,
Hutchinson, Terry, Biggert, Ose, Vitter, Waxman, Owens, Towns,
Kanjorski, Mink, Sanders, Norton, Cummings, Kucinich,
Blagojevich, Davis of Illinois, Tierney, Turner, Ford, and
Schakowsky.
Staff present: Kevin Binger, staff director; James C.
Wilson, chief counsel; David A. Kass, deputy counsel and
parliamentarian; Mark Corallo, director of communications; M.
Scott Billingsley and James J. Schumann, counsels; Pablo
Carrillo, Jason Foster, and Kimberly A. Reed, investigative
counsels; Robert Briggs, deputy chief clerk; Michael Canty,
legislative aide; Leneal Scott, computer systems manager; Lisa
Smith Arafune, chief clerk; Maria Tamburri, assistant to chief
counsel; Corinne Zaccagnini, systems administrator; Phil
Schiliro, minority staff director; Phil Barnett, minority chief
counsel; Kenneth Ballen, minority chief investigative counsel;
Kristin Amerling, minority deputy chief counsel; Paul
Weinberger and Michael Yang, minority counsels; Ellen Rayner,
minority chief clerk; and Jean Gosa and Earley Green, minority
assistant clerks.
Mr. Burton. Good morning. Good morning. A quorum being
present, the Committee on Government Reform will come to order.
I ask unanimous consent that all Members' and witnesses'
written opening statements be included in the record. Without
objection, so ordered.
I ask unanimous consent that all articles, exhibits, and
extraneous or tabular material referred to be included in the
record. Without objection, so ordered.
I ask unanimous consent that the binder of exhibits that
have been prepared for the hearing and shared with minority
staff prior to the hearing be entered into the record, and
without objection, so ordered.
I also ask unanimous consent that questioning in this
matter proceed under clause 2(g)(2) of House rule 11 and
committee rule 14 in which the chairman and ranking minority
member allocate time to members of the committee as they deem
appropriate for extended questioning not to exceed 60 minutes
equally divided between majority and minority. Without
objection, so ordered.
I also ask unanimous consent that questioning in the manner
under consideration proceed under clause 2(g)(2) of House rule
11 and committee rule 14 in which the chairman and ranking
minority member allocate time to committee counsel as they deem
appropriate for extended questioning not to exceed 60 minutes
divided equally between the majority and minority. Without
objection, so ordered.
This week we will hold our 3rd and 4th days of hearings
with the White House's failure to deal with the e-mail problem
and their failure to comply with subpoenas. Today we will focus
on what was happening in the Office of Administration. Tomorrow
we will focus on what was happening at the White House
counsel's office.
We just had a 2-week recess, but we're pushing ahead with
this investigation. We're conducting interviews. We're
reviewing documents. We're learning more as we go along.
We've been working on this investigation for a little over
2 months now, and it's very interesting to watch how the White
House behaves in these situations. The White House is behaving
exactly the way they do when they know they've done something
wrong and they've been caught with their hand in the cookie
jar. They are dusting off all of their old tricks that they
used in 1997 and 1998 during the illegal campaign fundraising
investigation. They turn over embarrassing documents late on
Friday evening. They selectively leak problem documents over
the weekend. It just happened again last weekend. They claim
bogus privileges over the documents as a stalling tactic.
People refuse to be interviewed prior to hearings.
You may not admire their tactics, but you have to admire
their consistency.
When we held our first hearing with the Northrop Grumman
contractors, I tried to put this e-mail problem into context. I
went through a whole litany of the White House stalling tactics
that we had endured, refusing to turn over documents until we
got fed up and scheduled a contempt vote, the failure to turn
over the White House videotapes, withholding documents in the
White House data base investigation, claiming false privileges
to delay document production.
Instead of going through the whole laundry list again
today, I think what I'll do is let them speak for themselves in
their own words. A new book has just come out, Truth at Any
Cost. It was written by a Washington Post reporter and a Time
Magazine reporter. They found out a lot about the way the White
House operated. Herald Ickes, who is the deputy chief of staff,
is quoted as calling the White House approach a ``foot-
dragging, screw you attitude'' approach. He apparently said it
with a great deal of admiration. I cleaned up that quote just a
little bit for the hearing room. But I think you get the
picture.
So they drag their feet, they try to run out the clock, and
then they blame the investigators for being partisan and taking
so long.
There was another book about the White House written by
Elizabeth Drew. She quoted another White House lawyer, Don
Goldberg. Here's what he had to say, ``it's an obvious
strategy. On the Hill, if you don't have much to go on, you
decry the partisanship, and the print reporters will write in
the first or second paragraph, and the TV stories will begin,
`In a hearing mired in partisanship,' and then they get to the
subject of the hearing and you've won. That's Damage Control
101.''
He goes on to say, ``in a hearing, if you're playing
defense, the goal is not to get your message out, the goal is
to keep the other side from getting their message out. Then
you've won.''
Well, that may be damage control 101, but it's not public
service 101.
What I don't understand is why it is that the White House
spends so much time figuring out how to spin things when the
facts aren't on their side and so little time trying to do
things right in the first place. I'm going to spend more time
talking about this tomorrow.
We have four White House lawyers on the schedule to
testify: former White House Counsel Charles Ruff, former Deputy
Counsel Cheryl Mills, Mark Lindsay from the Office of
Administration, and Associate Counsel Dimitri Nionakis. But
today we're going to focus on the Office of Administration.
We've reviewed a lot of documents at this point. We've
interviewed some people. We haven't been able to interview
others. We're starting to piece together the threads of what
was happening. Hopefully by the end of this hearing, we'll have
a clearer picture.
Here are a few of the key points that are starting to
emerge. Point No. 1: The Northrop Grumman employees were
threatened. This is becoming more and more clear. On March 23,
five Northrop Grumman employees testified here. They said they
were called to a meeting right after they discovered that
thousands, maybe hundreds of thousands, of e-mails hadn't been
searched for subpoena compliance. They said they were ordered
to keep it a secret. They said they were ordered not even to
tell their supervisors or spouses. Some said they were
threatened. One said he was told there was a jail cell with his
name on it.
The White House officials Laura Callahan or former Laura
Crabtree, and Mark Lindsay denied all of that.
On Monday we interviewed a higher-level Northrop Grumman
supervisor this past Monday, Joseph Lucente. He was three rungs
up the ladder from the Northrop Grumman employees at the White
House. In September 1998, he met with three of the contractors
who were at the meeting with Mrs. Callahan and Mr. Lindsay.
They had a long discussion about what happened. This was about
3 months later. So we asked Mr. Lucente, did your employees
feel threatened? Last Monday he said yes. Were they prevented
from talking to their superiors? Last Monday he said yes. Were
they concerned that documents weren't being searched to comply
with subpoenas? Last Monday he said yes. So once again, we have
contemporaneous testimony that what was--what they said was
true.
Point No. 2: We're getting more and more evidence that
people wanted to get this problem fixed, and they couldn't get
anyone to approve fixing it. Northrop Grumman was trying to get
it fixed. Tony Barry was trying to get it fixed. Other people
wanted to get it fixed, but they couldn't get anyone higher up
in the food chain to approve it.
We have a whole series of e-mails from Tony Barry. He was
frustrated. I'm going to read a couple of the messages. August
13, 1998, ``as far as I can tell, there is no movement under
way to fix the problem and recover the lost records from the
backup tapes.'' Does that sound familiar? ``I am not at all
clear what my role should be. I feel that the records must be
recreated and any searches need to be reperformed if the
requestors feel it is necessary. This seems like a daunting
proposition, but I do not see any other alternative.''
September 10, 1998, ``I am growing increasingly concerned
about the seeming lack of movement on the Mail2 problem. Do you
know where the hold up is. We have known about this problem for
4 months now and not a single record has been passed to ARMS.
Even worse, the root problem has not been fixed.''
September 25, 1998, ``It has been about 2 weeks since I
sent my last `concerned memo' regarding the Mail2 problem and I
am still not seeing any movement on fixing the problem. I need
to know, for my own sanity, exactly what my role in this
project should be.''
It seems clear that Mr. Barry knew that the Presidential
Records Act wasn't being followed, and he was trying to get
someone to pay attention to it. He was also the guy who was
responsible for conducting e-mail searches when subpoenas came
in, and he knew they weren't being done correctly, and he was
probably worried about that in the compliance with the
subpoenas.
Point No. 3: There was a hearing coming up before the
Appropriations Committee in March 1998, and they were not sure
how to handle it. Mark Lindsay, the director of the Office of
Administration, testified at that hearing in 1999. The White
House e-mail problem never came up, but the documents seem to
indicate that there was a long debate over whether to ask
Congress for money to fix the problem. If they asked for the
money and they got it, then they could get the problem fixed.
But it was a double-edged sword. If they revealed the problem
by asking for the money, then Congress would know that document
requests and subpoenas had not been complied with.
We have a copy of annual e-mail from Karl Heissner, who is
here today. I hope you'll put exhibit No. 81 up on the screen.
And here's what it says, ``while I'll be glad to write up
something related to the `Information Requests' channeled to us
via White House Counsel in response to various requests from
Congress and litigants against the Government, we may not want
to call undue attention to the issue by bringing the issue to
the attention of Congress because,'' and then the sentence kind
of ends. There's no period. And it looks like there may be some
words erased there, but it says, We may not want to bring the
issue to the attention of Congress because, and then it kind of
drifts off, and then the sentence ends.
And the next paragraph states, ``Last year's hours consumed
by SID staff amounts to only over a little over 500, This
year's hours consumed so far amounts to only 65, and The level
of requests appears to be declining.''
And then he concludes by saying, ``Let sleeping dogs lie. .
.'' I think translated that means let's keep a lid on this, and
don't let Congress and the independent counsels know about it.
I don't like the sound of it. When you hear that kind of talk
from a political appointee, it's disappointing, but I come to
expect it. When I hear it from a career employee, something is
wrong, so we would like to know what Mr. Heissner was talking
about here.
And then there was a lot of back and forth on the talking
points Mark Lindsay would use if this came up in a hearing. It
seems that some versions were more candid than others.
[Exhibit 81 follows:]
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Mr. Burton. We have another e-mail from Mr. Heissner. He's
offering some edits to the talking points. I'd like to have
exhibit 92 put up on the screen. I hope we can see that. My
gosh, it's small. Wonder why we can't get that stuff blown up.
At first he basically states, here's the current--listen to
this--at first he basically states, here's the current version
of the talking points, and then he lists them. Then he states
the more nearly accurate version. The more nearly accurate
version. Who is putting together inaccurate talking points? And
if this is the more nearly accurate version, where is the
really accurate version?
[Exhibit 92 follows:]
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Mr. Burton. The bigger, more important question is why
didn't the White House just come clean and tell Congress about
the problem as well as the independent counsels? Now, Karl
Heissner was not the decisionmaker in all this. I don't know
him. We haven't been able to interview him. I'm just going to
assume that he's a great human being and a dedicated public
servant, but there are some serious issues here that need to be
addressed. There was a lot going on, and we need to understand
it.
Point No. 4: The White House counsel's office got a second
briefing on the e-mail problem. During the last hearings we
held, we learned that Mr. Ruff got a briefing on the e-mail
problem from Mark Lindsay on June 19, 1998. We talked to Mr.
Ruff. We've had testimony from Beth Nolan. We've been told
there was a disconnect. Mr. Ruff and the counsel's office did
not understand how serious the problem was. Get that. Subpoenas
have been issued by our committee, by other committees and the
independent counsels, but they didn't understand how serious
all these missing e-mails were.
Last week we interviewed Michael Lyle. He's now the
director of the Office of Administration. He moved up to Mark
Lindsay's job when Mark Lindsay got a promotion. Mr. Lyle told
us that there was a second briefing for the counsel's office,
but that was news to us. He stated that in the spring of 1999,
he was informed of the second e-mail problem, the letter D
problem. He told Mark Lindsay about it. Mark Lindsay told him
that he had briefed the counsel's office. Who did he talk to at
the counsel's office? We don't know yet. Mr. Lindsay will be
back tomorrow, and we'll ask him, but the point is there was a
second briefing in less than a year, and still no action was
taken to correct the problem, to inform Congress or the Justice
Department or the independent counsels.
So there's a second briefing, you know, and they still
didn't tell anybody about it. Was there a second disconnect?
Did the counsel's office understand the second time around and
just decide not to do anything about it? Those are questions I
hope we can resolve tomorrow.
Let me end up by concluding in my opening statement that
for almost 2 years the White House knew that the subpoenas
weren't being complied with, and nothing was done about it
until it appeared on the front page of the Washington Times and
my committee started interviewing people. Somebody should be
accountable for that.
You know, Richard Nixon was run out of office for 18\1/2\
minutes of tapes. We had a President run out of office because
of the missing tapes, 18\1/2\ minutes. Here we have hundreds of
thousands of e-mails, and the White House has stonewalled the
Justice Department, the Congress, several independent counsels,
all of whom were interested in what might be in those e-mails,
and not only did the White House know about them, but they
covered it up over the past 2 years. And there was not just one
meeting about this, there were two meetings at different times.
The American people ought to be outraged. If Richard Nixon
was run out of office for 18 minutes of tapes, what does that
mean about the media and the reporting of all this when we're
talking about hundreds of thousands of e-mails? And the White
House is now saying, well, it may take 6 or 8 months for them
to get a contractor to get all this whipped into shape. We
believe in a matter of weeks we can hire a contractor to pick
out specific words and names and get these e-mails, the ones
that are relevant to various investigations, to the various
independent counsels, the Justice Department and our committee
in a short period of time.
But the White House has said they've hired contractors and
it's going to take 6 to 8 months. Do you know when the election
is? It's in November. So they are going to try to once again
run out the clock.
Mr. Heissner and Mr. Lyle, I want to thank you for being
here. I'm sure you'd rather be someplace else; however, I hope
you will be direct and straightforward and try to help us
understand what's going on.
We'll also hear from Assistant Attorney General Robert
Raben on our second panel. We have a number of questions for
Mr. Raben about the Justice Department's role in these matters
and subpoenas we've issued for Justice Department documents. I
hope we can make some headway with Mr. Raben today.
I now yield to Mr. Waxman.
[The prepared statement of Hon. Dan Burton follows:]
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Mr. Waxman. Mr. Chairman, in the spirit of trying to
expedite these hearings, I won't make an opening statement,
certainly nowhere near the opening statement the length of that
which you just delivered, but I do want to point out before we
begin that your opening statement was filled with inaccuracies,
omissions, that I think distort the facts of the issue before
us today. And I was taken aback by your close because not only
are you rewriting the events with regard to the White House e-
mails, you have rewritten history with regard to why Richard
Nixon was impeached by the House and forced to resign. It was
not because of 18 minutes of missing tape.
I know that there are many people who are disappointed you
can't run this President out of the White House, because the
Constitution requires you have a reason to do it more than the
fact that you dislike him enormously.
I look forward to the testimony of our witnesses today. I
want us to get the facts, and then we'll see what conclusions
we can draw from the facts. What we've heard were a lot of
conclusions, and I know you're trying to see if the facts will
fit your conclusions, but let's evaluate it on the testimony
we're to receive. I look forward to hearing from our witnesses.
I yield back my time.
Mr. Burton. We'll now welcome our first panel to the
witness table, Carl Heissner and Michael Lyle. Would you please
stand and raise your right hands, please.
[Witnesses sworn.]
Mr. Burton. Do either one of you have an opening statement?
Mr. Heissner, you want to start?
STATEMENT OF KARL HEISSNER, BRANCH CHIEF FOR SYSTEMS
INTEGRATION AND DEVELOPMENT, EXECUTIVE OFFICE OF THE PRESIDENT,
OFFICE OF ADMINISTRATION
Mr. Heissner. I have an opening statement which I delivered
to the committee yesterday which is included in your record. I
don't think it's necessary for me to read it unless you wish me
to.
Mr. Burton. You want to let your prepared statement speak
for itself?
Mr. Heissner. Correct, sir.
[The prepared statement of Mr. Heissner follows:]
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Mr. Burton. Mr. Lyle.
STATEMENT OF MICHAEL LYLE, DIRECTOR, EXECUTIVE OFFICE OF THE
PRESIDENT, OFFICE OF ADMINISTRATION
Mr. Lyle. Thank you, Mr. Chairman. I do not have a written
opening statement that I submitted, but I do want to emphasize
to you that I have cooperated with your committee, as has my
staff. I participated in an almost 4-hour interview with five
of our attorneys before I came here to this committee to
testify here again, and I'm prepared to answer any questions
that you may have in an effort to cooperate in this matter.
I know that my staff members--at least 10, maybe 12 members
of my staff have also been requested for interviews, and I know
they are working with your attorneys to do that. So I want to
emphasize to you that we are working and endeavoring to
cooperate with you as best we can.
Mr. Burton. Does that conclude your opening statement?
Mr. Lyle. Yes, sir.
Mr. Burton. Thank you.
Mr. Heissner, I appreciate that you aren't a political
appointee. This isn't easy, and I want to thank you for being
here. We were hoping you would be available for an interview
before this hearing, but evidently he was not available for a
interview; is that correct?
Mr. Barr. Mr. Chairman, could I ask you to identify the
third party at the table, who he is, if he's representing
somebody?
Mr. Burton. Are you the legal counsel for Mr. Heissner?
Mr. Zwerling. My name is John Zwerling, and I'm legal
counsel for Mr. Heissner.
Mr. Burton. Mr. Heissner evidently was not available for
questioning by the counsel for the committee.
Let's get right to the questions. Sometime in November
1998, you were given the responsibilities of managing phase 2
of the Mail2 project; is that correct?
Mr. Heissner. That's correct, sir. A number of us that were
involved or had responsibilities related to the particular
issue met, and it was agreed that the responsibility for the
recovery, for developing the software to perform the recovery
of un-records-managed records would be the responsibility of
the Systems Integration and Development Branch, which I was
heading at the time.
Mr. Burton. That was in November 1998?
Mr. Heissner. That's correct, sir.
Mr. Burton. What was phase 2 of the Mail2 project?
Mr. Heissner. When you take a look at the record, there are
a number of phases, 1s, 2s, and 3s. I believe in that instance
the phase 2 was understood to be the development of an
application of software, of a system that would take the backup
tapes that had been taken over previous months and years, would
take those backup tapes and bring them back onto a computer and
then extract from the data that was restored the e-mail
messages which had not been records managed.
Mr. Burton. Was it not also to make sure that future
incoming e-mails were archived?
Mr. Heissner. That particular project would not address
ensuring that future records would be archived. That was a
separate process.
Mr. Burton. The White House took steps to meet its legal
obligations to produce documents only after this committee
began to investigate. Why did Congress have to hold hearings to
get the White House to give us that information, to do the
right thing?
Mr. Heissner. I have no knowledge of the rationale behind
that, sir.
Mr. Burton. You were the chief technician. Did you ever
feel frustrated that the White House didn't do anything in 1998
or 1999 to comply with our subpoenas and give us the
information?
Mr. Heissner. I have--it's difficult for me to imagine that
we didn't comply with subpoenas. At the time the recovery of
the records was a responsibility of mine, and at the time my
concerns were that we develop an application that would recover
the data. The concern subsequently became to make sure that the
backup tapes which had been taken were not being recycled or
reused so that the data eventually could be recovered.
Mr. Burton. Eventually?
Mr. Heissner. Yes, sir.
Mr. Burton. Did you feel that a lot of effort was being
made to solve the problem in 1999?
Mr. Heissner. By 1999, the problem of those 400, 500
accounts which had not been encoded properly, and therefore the
incoming e-mail that was coming from outside the complex had
not been records-managed, had been corrected. At the time the
contractor staff, the Northrup Grumman staff, was involved in
developing some software that would make sure that the system
functioned properly, and there would be no more non-records-
managed e-mails.
Mr. Burton. Can you tell me why it took congressional
hearings to force the White House to make an effort to solve
the e-mail problem?
Mr. Heissner. No, sir, I can't.
Mr. Burton. Put up exhibit 81 on the screen, please.
Before we get that, Mr. Lyle, can you tell me why it took
congressional hearings to force the White House to make an
effort to solve the e-mail problem?
Mr. Lyle. I don't believe it took congressional hearings to
have the White House solve any e-mail problems, sir.
Mr. Burton. Why wasn't Congress notified about the e-mail
problem? Why didn't we get any of the information we
subpoenaed? And why didn't the independent counsel, and why
didn't the Justice Department?
Mr. Lyle. I'm not aware of the communications that occurred
between the White House counsel's office and this committee
relative to----
Mr. Burton. You didn't know anything about the subpoenas we
sent for all kinds of information involving a number of
investigations?
Mr. Lyle. Sir, I joined the Executive Office of the
President in November 1998, so I have no personal knowledge.
Mr. Burton. Did you have any communication at all with the
counsel's office?
Mr. Lyle. During what timeframe, sir?
Mr. Burton. Since you were hired.
Mr. Lyle. Certainly I had communications with White House
counsel, yes, sir.
Mr. Burton. You knew there was an e-mail problem. Did they
ever--you talked to them about the e-mail problem, didn't you?
Mr. Lyle. My most vivid recollection of learning about the
e-Mail2 problem that you're referring to was in around April
1999 in connection, as you mentioned in your opening statement,
with the letter D issue. That's in the context of that
particular discussion.
Mr. Burton. Did you talk to the counsel's office at all
about the e-mail problem, anybody in the counsel's office?
Mr. Lyle. I have had communications.
Mr. Burton. If you talked to people in the counsel's
office, did they say anything about subpoenaed documents from
any of the independent counsels or our committee or Justice?
Mr. Lyle. There was a briefing I participated in in January
of this year, January 2000, where I discussed that issue, sir.
Mr. Burton. When did you come to work for them?
Mr. Lyle. I joined in November 1998.
Mr. Burton. When did you assume the position that you have?
Mr. Lyle. I assumed that position on January 30 of this
year.
Mr. Burton. But you were involved in the e-mail problem
when?
Mr. Lyle. The e-Mail2 problem?
Mr. Burton. Yes.
Mr. Lyle. I learned about it, as I said, in about April
1999 in connection with, as I recall, the letter D problem.
Mr. Burton. That's a year ago. And you communicated with
the counsel's office?
Mr. Lyle. No, sir.
Mr. Burton. You did not communicate with counsel's office?
Mr. Lyle. I did not.
Mr. Burton. They knew about the e-mail problem. Did they
not talk to you about it at all?
Mr. Lyle. I conveyed--as you said in your opening
statement, I conveyed the information concerning the letter D
issue to my superior Mark Lindsay, who spoke to counsel's
office.
Mr. Burton. Put up exhibit 81 on the screen.
This document was produced to the committee by the White
House after our first two hearings on the subject and 3 weeks
past the due date of our subpoenas. As usual the White House
sent it to us late on a Friday night. It appears to be an e-
mail from you, Mr. Heissner, but the document lists no
recipient. It's dated February 5, 1998, and there two lines
labeled ``Issue.'' One reads, ``Mail2 Reconstruction.'' The
other reads, ``Information Requests.'' Who was the original
recipient of this e-mail?
Mr. Heissner. Sir, I think exhibit 82 shows to whom this e-
mail was sent. The copy that you're looking at in exhibit 81
was a result
of pressing the send key before I had entered the subject and
recipient. That happened at 9:06 on February 5th. On exhibit 82
is the message that actually was sent to Mrs. Cleal at 9:08,
and it has the recipient, and it has a subject line.
[Exhibit 82 follows:]
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Mr. Burton. Was that the original recipient; Ms. Cleal?
Mr. Heissner. That's correct. In the e-mail system, we
have--it's possible--it's a flaw in the system. It's possible
to send an e-mail which has no recipient.
Mr. Burton. Why is the recipient not listed on that
document?
Mr. Heissner. Because it was a mistake. I pressed the send
key before I entered the recipient's name.
Mr. Burton. It was a mistake?
Mr. Heissner. Yes, sir.
Mr. Burton. Did you send a blind carbon copy of this e-mail
to anyone?
Mr. Heissner. Not to my knowledge, sir, no.
Mr. Burton. Not to your knowledge?
Mr. Heissner. I can't tell by looking at this, sir, but I'm
sure I didn't send a blind copy to anyone.
Mr. Burton. You're sure you didn't send a blind copy to
anyone?
Mr. Heissner. I can't be totally sure without looking at
the original.
Mr. Burton. It's pretty important, because you may have
sent one to the counsel's office or something. We just want to
know. Did you send a copy to anybody besides her?
Mr. Heissner. To the best of my knowledge, no, sir.
Mr. Burton. Do you know how many times we've heard ``I
can't recall'' and ``to the best of my knowledge'' from
witnesses from the White House? We ought to get a number of
that. It must be in the hundreds.
Did anyone else get a copy of this e-mail?
Mr. Heissner. Would that be from me, sir, or from anybody
else?
Mr. Burton. From you, or if you know of anybody else who
got a copy of e-mail?
Mr. Heissner. It could have been forwarded by the
recipient, that's possible, and I would not know if that
happened, sir.
Mr. Burton. Did you discuss this e-mail with anyone else?
Mr. Heissner. At that time that it was sent, sir?
Mr. Burton. Yes.
Mr. Heissner. Frankly, I don't recall.
Mr. Burton. You don't recall?
Mr. Heissner. No.
Mr. Burton. The first paragraph of the document reads,
``While I'll be glad to write up something related to the
`Information Requests' channeled to us via White House Counsel
in response to various requests from Congress and litigants
against the Government, we may not want to call''--you say,
``We may not want to call undue attention to the issue by
bringing the issue to the attention of Congress because,'' and
then it kind of drifts off. The sentence is incomplete.
Mr. Heissner. That particular paragraph, sir, is addressing
the issue of information requests during 1997, 1998, 1999. We
had received many requests for information where it related to
the White House data base. In 1997, we expended on the order of
3,000 or more hours of staff time to retrieve information and
make it available in response to subpoenas. During that year I
had spent well over 1,000 hours, at least I recorded over 1,000
hours and probably more in responding to these requests, as you
may recall. So what I'm addressing in the issue information
requests is the question was should we bring to the attention
of Congress we're spending an enormous amount of time
responding to subpoenas and other requests for information
related to WhoDB, and my response was, well, we don't really
need to bring this issue up again because--and the way this
was--the original reads, and it doesn't show here, they are
bullets, little bullets in front of each of those three
sentences, which starts with last year's, this year's and the
level. So the memorandum or the text here had the intention of
saying let's not raise this. We don't need to have things
stirred up and have more requests coming in----
Mr. Burton. Sir, that isn't going to wash, because we had
already sent subpoenas to the White House, to the counsel's
office on a whole host of issues, and the law requires that you
respond to subpoenas, and for you to say, ``We may not want to
call undue attention to the issue by bringing the issue to the
attention of Congress because,'' and then it drifts off, we had
already issued subpoenas. Why is that sentence not complete?
Mr. Heissner. Sir, the sentence is complete because it has
a because clause and three bullets, which don't show here, a
period, and then the infamous quote here, ``Let sleeping dogs
lie.''
Mr. Burton. Tell me, where are the bullet points? We don't
see them on here.
Mr. Heissner. They don't show on this particular document.
Mr. Burton. Why don't they show? If the sentence ends with
``because,'' and there are no bullet points, and there's two
vacant lines there, why aren't the bullet points in there?
Mr. Heissner. The retrieval mechanism of records-managed
records does not retrieve all the graphics that are present in
the original.
Mr. Burton. There's no period at the end of the sentence.
There's no other mark that would indicate that there's three
bullet points.
Mr. Heissner. It doesn't show in the retrieved records. The
original does show. There's a bullet. They are either lower
case or in some cases----
Mr. Burton. Why didn't we get that?
Mr. Heissner. It is part of the mechanism of retrieving.
Mr. Burton. Why didn't we get that? You don't know.
Mr. Heissner. I don't know.
Mr. Burton. Who asked you to write up something related to
information requests?
Mr. Heissner. As I recall, I received a telephone call
during that week to address these two issues, Mail2
reconstruction and information requests.
Mr. Burton. From whom?
Mr. Heissner. Best I remember, it was the person who I was
reporting at the time, Dotty Cleal, who is the Associate
Director for Information Systems.
Mr. Burton. Why did you want to avoid--I think you've
answered this. Why did you want to avoid bringing the issue to
the attention of Congress? Because it involved more work?
Mr. Heissner. My perception was these requests for
information that we received--and we certainly executed
faithfully--the requests were detracting from our regular work,
and if we had fewer of those, we could get the work done that
we were there to do. It wasn't an attempt to say, don't provide
the information, it was just let's--these requests have
declined. We have not--we did not spend--we have not needed to
spend more time to respond to them, and I think we're fine
here. We don't need to ask for money to pay for this.
Mr. Burton. Let's take a minute and go over what we know.
People at the White House administration were concerned that
this e-mail problem was got getting solved. Employees felt
threatened and intimidated. They were told they couldn't even
speak to their bosses, and one was threatened, he thought, with
jail; two were, as a matter of fact. One was so scared she said
she'd rather be insubordinate than go to jail. Another said
that there was a jail cell with his name on it. Northrop
Grumman wrote several memoranda saying they couldn't proceed
without direction from the White House. The President's deputy
chief of staff was told about the problem. The counsel to the
President, Chuck Ruff, was told about the problem. Later Mr.
Lindsay, who is now an assistant to the President, went back to
the White House counsel's office and told them about another
problem where documents were not being retrieved. And the White
House's problem was not a secret, that people were threatened
and felt scared to talk about it.
So I want to know the answer to the one really important
question. Why not tell Congress about the problem, No. 1; and
then what do you mean by let sleeping dogs lie?
Mr. Heissner. What I meant by that was that since we--since
the number of inquiries, number of subpoenas related to
information residing in the White House data base had
diminished, we don't need to go to Congress to ask for funding
to pay for the cost of performing these information requests.
Mr. Burton. Excuse me. The White House data base wasn't the
only thing that was under subpoena. There's a whole host of
subpoenas that were out on a whole bunch of issues, the
espionage issue, the campaign finance issue, Waco, a whole
bunch of things. Did you know anything about those? It wasn't
just WhoDB?
Mr. Heissner. I was aware of many of those.
Mr. Burton. You were aware?
Mr. Heissner. I was aware of many of the requests because
the requests would be sent to IS&T staff through e-mail, and we
would respond to them, but the primary time consumer of
requests had to do with the White House office data base.
Mr. Burton. In any event, you said, let sleeping dogs lie.
You knew about all these subpoenas. You knew this information
was legally requested and should have been given to the
Congress of the United States. And you sent a memo around
saying, hey, let's let sleeping dogs lie, and the subpoenas
were not complied with. And this is 2 years ago, and I don't
know what we're going to hold you responsible for that, but the
fact of the matter is you knew those subpoenas were in order.
You knew that information should go forward, and you said, in a
memo, let sleeping dogs lie.
I'm now going to yield to Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
Mr. Chairman, I think you asked a very relevant question.
During the time that I served as a U.S. Attorney, if we had
sent a subpoena to a witness or a custodian of records, and
they replied back either directly or in this case indirectly,
let sleeping dogs lie, that would be considered evidence of
obstruction of justice. Does that concern you, Mr. Heissner?
Mr. Heissner. It certainly does. There was no intention or
attempt to obstruct justice in any form.
Mr. Barr. I'm sure that neither you nor other people--or I
would presume you didn't have a thought process and the words
``I am going to obstruct justice'' went through your mind. I
would certainly hope not. However, as the chairman has
indicated, you were aware as you were of these probes, you were
aware of a problem, you were aware that this problem entailed
information that was being sought by various entities in this
case, an independent counsel, more than two, or at least two
committees of the Congress, and your directive is to let
sleeping dogs lie, which in common parlance means disregard
this, ignore it, don't worry about it, that can be evidence of
obstruction of justice.
Mr. Heissner. The intention of this sentence was to not
request--not to raise the issue of information requests and the
effect it had on the staff of IS&T as an issue of asking for
additional funding. The effect of the request having to do with
the White House office with the WhoDB data base had been
significant upon our staff, and that was uppermost in my mind.
As other requests would arrive, all of us, including myself,
would look at those requests, would consider if the information
requested was in our records. If it was, we would provide that
information through channels. That was the normal process, and
in most cases those requests involved information about
individuals, which, in the environment in which we found
ourselves and the kinds of things we did, we would not have any
information about individuals.
Mr. Barr. Your service in the government spans several
different administrations, including the administration of
George Bush and his counsel, Mr. C. Boyden Gray. It seems like
not just a decade ago, but ages ago that we had an
administration whose thought process placed uppermost in their
minds scrupulous adherence to the law and to err on the side
always of providing more information rather than less, more
information rather than what might be strictly technically
required by looking at the four corners of a subpoena or some
other documentation.
Can you pinpoint when we moved from that notion of public
service in compliance with the public interest to something
else being foremost in the minds of those to whom subpoenas are
directed or who have custody over government records subject to
subpoena?
Mr. Heissner. No, sir, I have no idea when that change
happened. It is not in an area that I deal with.
Mr. Barr. It is because you told us what was uppermost in
your mind. What I'm saying is there used to be a day, and
hopefully that day will come again, when a public official at
the White House always keeps foremost in their mind not the
cost of something as an excuse for not complying or not
furnishing information, but what can I do to make sure that the
public interest is respected to the degree so that we are going
to go the extra mile not to cover up, not to not furnish
information, but to furnish information. I don't know when that
change took place, but it has taken place. It is relevant for
purposes of your appearance here today because you've used
those words, what was uppermost in your mind or foremost in
your mind, and to see something written, to let sleeping dogs
lie, is very, very disturbing both from a public policy
standpoint as well as from the standpoint--and I don't know
what Robert Ray is looking at--but from the standpoint of
possible obstruction of justice.
If I were you, and I don't know whether your counsel has
any concern about this, but it raises very troubling questions
in our mind about obstruction of justice, and I suspect that's
why the independent counsel may be looking at this as well. I
think the chairman, despite the constant efforts to downplay
and denigrate the work of this committee by the folks on the
other side, has asked a very legitimate question, and simply
saying, well, something related to the cost--we heard this from
Mr. Lindsay, he tried to say this was an issue of cost or
whatnot rather than scrupulous effort to comply I think is a
very legitimate question and one that ought to concern you.
Mr. Heissner. It certainly is, sir, but as I'm looking at
this memorandum, maybe I need to explain that there are two
issues that are being addressed. The issue, if you take a look
in the paragraph which is, ``Note:'' ``Issue: Mail2
Reconstruction (document attached),'' and then below the dotted
line it will say, ``Issue: Mail2 Reconstruction,'' and it
provides a background and definition of the problem for Mrs.
Cleal.
The paragraphs which you are questioning are related to a
request for information from Mrs. Cleal about the effects that
various information requests are having on the IS&T staff and
whether it should be brought up as an issue that might perhaps
warrant additional funding for the organization, and my
response was, well, the level of effort required to accommodate
this request and the requests are declining, and at this point
we don't need to ask for additional funding, so let's not even
mention that we need funding for this because we don't need it
right now, not for the purpose of answering information
requests.
So there are two topics on this. Maybe that's the
confusion, sir.
Mr. Barr. It would be nice if it were just a matter of
confusion. We'll have to see. I think it illustrates and may be
evidence of a mindset that disturbs the chairman very greatly
and legitimately, which we're going to inquire further, and as
I say, I suspect the independent counsel is as well.
Mr. Lyle, if I could go back to ask some fairly specific
background questions. When was it that you first learned about
the Mail2 problem?
Mr. Lyle. My most vivid recollection is in April 1999,
thereabouts, in connection with the letter D problem, the
second anomaly that we've been discussing.
Mr. Barr. This was approximately 6 months after you began
your work in the Office of Administration?
Mr. Lyle. Yes, sir.
Mr. Barr. Where were you just prior to your work in the
Office of Administration?
Mr. Lyle. I was in private practice in Chicago.
Mr. Barr. What research have you done to satisfy yourself,
as I'm sure as a public servant you would, when this issue
first came to the attention of the Office of Administration?
Mr. Lyle. Which issue, sir?
Mr. Barr. The issue of the Mail2 problem.
Mr. Lyle. The discussions that I had in connection with the
letter D matter were with Mr. Lindsay and other members of my
staff, and in the course of those discussions, as I said, I
learned about the e-Mail2 is my most vivid recollection of
that. And he had explained that in dealing with the Mail2
issue, that he had communicated that issue to--I'm sorry, the
e-Mail2--did I say the e-Mail2--the e-Mail2 problem, he
communicated that to White House counsel's office, and that he
had handled that matter, and I was satisfied that Mr. Lindsay,
who was my predecessor in my position, who was my superior, and
who I have known for a long time, had taken steps to convey the
information for the White House counsel to handle.
Mr. Barr. When did he indicate to you that had taken place?
Mr. Lyle. In that April 1999 meeting.
Mr. Barr. When did he communicate to you that he first
became aware of the Mail2 problem?
Mr. Lyle. As I recall it, it was in June 1998 timeframe
that he became aware of it, as I recall what he said.
Mr. Barr. And you are aware, at least as you sit here
today, that the Office of Administration became aware of the
problem in very early 1998 initially?
Mr. Lyle. I know that there were some reports about the
problem. I don't know--January 1998, I don't know exactly when
that was.
Mr. Barr. You're aware of the fact certainly through
following these proceedings, as I'm sure you have, and in
preparation therefore that January 1998 was the time in which
there were actual communications?
Mr. Lyle. All I can tell you from my personal knowledge,
sir, is that in the meeting that I had in April 1999 when I was
learning more about the e-Mail2 issue, that I was told that--my
understanding is that Mr. Lindsay was aware in the June 1998
timeframe about what happened in January 1998. I know others
have discussed that, but as I sit here, I cannot tell you what
that was.
Mr. Barr. When you discussed with Mr. Lindsay the
communication of this information with the White House counsel,
what manner was that communicated to White House counsel, and
to whom were the records themselves delivered?
Mr. Lyle. In my meeting with Mr. Lindsay, he conveyed to me
that he had met with White House counsel. At that time it would
have been Mr. Ruff. As far as documentation, I believe that
there was some memo that he had submitted to his superior, Mr.
Lindsay had submitted to his superior, concerning the e-Mail2
issue.
Mr. Barr. How about the group of missing and reconstructed
e-mails delivered to the White House counsel's office? When did
Mr. Lindsay indicate that took place, and to whom were those
delivered?
Mr. Lyle. I don't believe we discussed that in the meeting.
Mr. Barr. Did you discuss that at a later date?
Mr. Lyle. I have.
Mr. Barr. Would that not have been relevant?
Mr. Lyle. Again, I was learning more about it from a
background point of view because we were addressing the letter
D issue in that timeframe. I don't recall that having been
raised at all, so I can't say any details about what happened.
I'm not sure which documents actually, sir, you're referring
to.
Mr. Barr. After the problem was initially discovered by
Northrop Grumman employees, and this was the subject of to some
extent the discussion here in the March 23 hearing, there was a
very large group of documents that were pulled up, e-mails,
after a search, initial search, was conducted of certain names
in order to verify presumably the extent of the problem. Those
were delivered to the White House and have mysteriously
disappeared. I'm wondering if you ever had any discussion with
Mr. Lindsay about those documents, those e-mails.
Mr. Lyle. No, sir, I did not. I am aware since, based on
what you're talking about, that Mr. Lindsay did, as I
understand it, deliver documents to the White House counsel's
office, and I think you talked to him about it in your hearing
with him that you're referring to in March of this year.
Mr. Burton. My time has expired, Mr. Barr.
Mr. Waxman.
Mr. Barr. Thank you, Mr. Chairman.
Mr. Waxman. Mr. Heissner, Mr. Lyle, I appreciate your being
here to answer questions.
Mr. Heissner, you indicated in your written statement that
you're not a political appointee, are you?
Mr. Heissner. That's correct, sir.
Mr. Waxman. Tell us what you've been doing and how long
you've been there.
Mr. Heissner. I've been working for the Federal Government
for almost 25 years. I started with OMB, worked during the Ford
administration, Carter administration, and subsequently right
on through the Clinton administration. The majority of my time
was in support of OMB's budget preparation system. When OMB
went to go to contractors for support, then I served as the
data base administrator for the Office of Administration data
center, EOP data center. These have all been technical
positions, which is where my interests and my expertise lie.
Mr. Waxman. I'm just shocked at the questioning you've had
so far from the chairman of the committee and Mr. Barr because
I think they've impugned your integrity. I don't think they
have any basis for it, any justification for it, and it seems
to me their complaint is you're not giving them the answers
they would like you to give because they want to go after this
administration. They want to paint a certain picture, and
you're not giving them testimony to fit. Now, that's no reason
to act as if you are lying to this committee. Are you lying to
this committee?
Mr. Heissner. No, sir. Absolutely not.
Mr. Waxman. You know you're under oath.
Mr. Heissner. Yes, sir.
Mr. Waxman. Let's try to sort through what the real facts
are on this issue. It's sort of Orwellian that the chairman has
this exhibit up of your e-mail, and everything is highlighted
except one line, and that is the issue. The issue is
information requests, because that e-mail didn't have to do
with missing e-mails from the Mail2 system. It had to do with
information requests from the Congress; is that correct?
Mr. Heissner. That's correct, sir.
Mr. Waxman. That had to do with preparing Mr. Lindsay, who
you work for, to go before the House Appropriations Committee
or the Senate Appropriations Committee to talk about the
budget. As I understand, what you're telling us is that you
suggested rather than complain about all the requests that
you've been getting for information from the Congress, and I
must say particularly from this committee, you didn't want to
suggest that perhaps those information requests had been
reduced, because if you suggested the information requests
might be fewer than they had been in the past, it might trigger
the Congress to start sending more information requests. Is
that what you meant by let sleeping dogs lie?
Mr. Heissner. That's exactly correct, sir.
Mr. Waxman. People may not realize it, but this committee
has caused you, as a technical person, having worked for many
administrations, to spend--I don't know--6 months is the
estimate I got--of your time simply answering requests from
this committee on the White House data base. Is that accurate?
Mr. Heissner. That's accurate, sir.
Mr. Waxman. The White House data base has nothing to do
with e-mails.
Mr. Heissner. That's correct, sir.
Mr. Waxman. The White House data base investigation was an
investigation that Congressman McIntosh conducted, and he
wanted to find out whether something was really rotten with the
White House data base because Christmas cards were going out
using that data base, and he made all sorts of accusations. I
think he even accused people of breaking the law. And then
after spending a year or 2 years on that investigation, causing
you to spend thousands of hours, many months of your time, all
paid for by the taxpayers, there was nothing to show for that
investigation, so requests were sent for more information and
more information and more information, and the Congress just
kept on fishing around to see if they could find some scandal.
They found none. And you were alluding to in that, as I
understand that particular document, that when your superior
goes to the Appropriations Committee, don't raise the issue
that we got a lot of requests before and fewer now; let
sleeping dogs lie, maybe they won't have their attention drawn
to the fact that they ought to be asking for more information.
Is that what we're talking about?
Mr. Heissner. That's correct, sir.
Mr. Waxman. That's a different issue than what they are
talking about on this committee, which is the Mail2 retrieval
system, which is the archiving of e-mails at the White House;
is that correct?
Mr. Heissner. That's correct, sir.
Mr. Waxman. Now, in your--let me just ask you some bottom-
line questions. Let us just get this right on the record. There
seems to be an allegation that the White House was trying to
cover up damaging e-mails. At our first hearing the chairman
said that the White House basically had two choices. They could
face up to the problem, tell the Justice Department and
Congress what happened, get it fixed, or they could throw a
blanket over the whole problem, ignore it and hope nobody would
find out. And the chairman says it looks like they chose to
cover it up.
Mr. Heissner, did anyone ever ask you to conceal the
existence of the computer glitch that caused the missing e-mail
problem?
Mr. Heissner. No, sir.
Mr. Waxman. Mr. Lyle, did anyone ask you to do that?
Mr. Lyle. No, sir.
Mr. Waxman. Did anyone ask you, Mr. Heissner, to conceal
the e-mail problem from Congress?
Mr. Heissner. No, sir.
Mr. Waxman. Mr. Lyle.
Mr. Lyle. No, sir.
Mr. Waxman. It's pretty ironic to ask you to conceal the
problem from the Congress, because in December 1998, which was
2 months before your e-mail which they look at now as the
smoking gun of the White House cover-up, it was reported in
Insight Magazine that the Congress of the United States, in
fact this committee, had information that some e-mails were
missing. So we already knew some e-mails had been missing from
the White House data base system. You probably know nothing
about that particular publication, but it's interesting that in
the public--a public document, a newspaper, they were talking
about how this committee already knew that they weren't getting
all the White House e-mails because of some glitch in the
system. You are telling us you weren't trying to conceal this
problem from the Congress.
Mr. Heissner. That's correct.
Mr. Waxman. Did anyone ever ask you not to report the e-
mail problems to the Congress?
Mr. Heissner. No, sir.
Mr. Waxman. Mr. Lyle.
Mr. Lyle. No, sir.
Mr. Waxman. Now, Mr. Heissner, let's go back to that e-mail
which is the topic of this whole hearing today. There's been
some confusion about this document, and so let's try to clear
up the confusion. You said the document--let's be sure we're
working off the same document. There's a version with Bates
stamp E 3865, dash, 3866, and the document indicates that you
sent this e-mail to Dorothy Cleal. Who is Ms. Cleal?
Mr. Heissner. Mrs. Cleal was the Associate Director of the
Information Systems and Technology Division. She was the person
to whom I was reporting directly.
Mr. Waxman. Next to the subject heading of the e-mail, it
says, ``Issue Papers for Appropriations Hearing.'' What does
that refer to?
Mr. Heissner. That refers to a request for information that
was going to be passed on to Mr. Lindsay for appropriation
hearings.
Mr. Waxman. I understand you were asked to prepare briefing
materials on two issues. What were those two issues?
Mr. Heissner. That's correct. The two issues were Mail2
reconstruction, and the second one was called information
requests.
Mr. Waxman. The e-mail contains a discussion of both of
these issues. Continuing with the text of the e-mail, it goes
on to say, ``Issue: Mail2 Reconstruction (document attached).''
Below that it says, ``Issue: Information requests.''
Are these two issues related to one another at all?
Mr. Heissner. No, sir, they are separate.
Mr. Burton. They are completely separate issues.
After the section dealing with information requests,
there's a divider and then a section labeled, ``Mail2
Reconstruction.'' Below that heading there's a fairly detailed
description of the history of the Mail2 problem and efforts to
investigate it and fix it.
Let me ask you, did you want to prevent Congress from
finding out about the Mail2 problem?
Mr. Heissner. No, sir.
Mr. Waxman. When you wrote, ``Let sleeping dogs lie,'' were
you referring to the Mail2 problem?
Mr. Heissner. No, sir.
Mr. Waxman. I think we know what Mail2 reconstruction
refers to, but what does information requests mean?
Mr. Heissner. Information requests refers to the issue that
was going to be perhaps discussed, or at least would be
considered for discussion, the issue having to do with the
level of effort that was required to respond to requests for
information from different sources, and in particular the level
of effort that had been required to respond to information
requests related to the WhoDB data base.
Mr. Waxman. Did you want to hide information from Congress?
Mr. Heissner. No, sir.
Mr. Waxman. Looking at the text that follows, what did you
mean when you wrote, ``Let sleeping dogs lie''?
Mr. Heissner. What I meant by that was I don't think we
need to draw undue attention to the issue of requested
information related to the WhoDB data base since the requests
are declining. We provided all that information as requested of
us, we spent a considerable level of effort responding to these
requests, we ran many queries. They were done very, very
carefully to ensure that the information that was requested was
made available, and it had a negative effect on the operations
because it took away considerable time from a very small staff.
Mr. Waxman. Let me just underscore what that means when you
say it took away time from a small staff. It took away
resources that the taxpayers paid to have people work for the
government in all sorts of capacities to just answer a flood of
requests of information from the Congress, and this committee
is probably guiltier than any other. This committee just kept
on sending requests for more and more documents, more and more
requests, and more and more people had to work on it. We have
spent taxpayers' dollars just to fund this committee, I don't
know how many millions, and then I don't know how many millions
had to be spent just to answer the requests from this
committee. And when the committee gets documents and
information that doesn't fit into the accusations of scandal,
witnesses like you are treated with the back of their hand.
They act as if you were trying to cover up for Bill and Hillary
Clinton's misdeeds, and you are not a political appointee. You
are a career civil servant working in a technical area.
I just find it astonishing, I guess is the best word to
use, but I find it even more troublesome than astonishing. I
find it unprofessional.
Now, let me ask Mr. Lyle some questions so we can get some
of this on the record. I'm going to ask you about the Mail2
problem. When did you--you first arrived at the Office of
Administration when?
Mr. Lyle. In November 1998.
Mr. Waxman. So you were not at the Office of Administration
in the time period that the Mail2 problem was found and then
fixed prospectively; is that right?
Mr. Lyle. That's correct.
Mr. Waxman. Let me just take a minute so that people who
are watching this hearing or the press, because they are not
thinking about this issue, to go through a timeline. An ARMS
system, which is a retrieval system for e-mails, was set up at
taxpayers' expense at the White House and at all the executive
office buildings so that a historical record of all the e-mails
could be captured; is that right?
Mr. Lyle. There was an automated records management system
known as ARMS. It was established within the Executive Office
of the President. I can't tell you what other government
agencies have done.
Mr. Waxman. That system, as of June 1998, was discovered to
not be operating in complete compliance with the goals and what
the contractor, which was Northrop Grumman, I think--what they
envisioned. So they discovered in June 1998 that some e-mails,
and I think mainly e-mails that were being sent from the
outside in, were not on this ARMS system. You weren't there in
June 1998?
Mr. Lyle. That's correct, sir.
Mr. Waxman. By November 1998, they fixed the system, and
they fixed it for the future so that every time anybody sent an
e-mail either into the White House Executive Office or
internally or from the office out, that was all going to be in
the retrieval system. They found there was a problem, and they
corrected it. That was in November 1998.
In December 1998, in the Insight Magazine--I think it's a
publication of the Washington Times--they reported that this
committee, the Congress, knew there was a problem of some of
the retroactive e-mails not getting picked up. Did you know
about that?
Mr. Lyle. I know of the report. Before I came to
Washington, I had never heard of Insight Magazine, but since
I've been here, I am now familiar with it. I don't know when I
learned of the article.
Mr. Waxman. When were you first informed about the Mail2
problem?
Mr. Lyle. The Mail2 problem was in April 1999, thereabouts,
as I've said. It's my most vivid recollection of learning about
it in the context of the letter D anomaly.
Mr. Waxman. Did you have any reason to think there was an
ongoing or potential problem with document production to meet
the requests from all the investigators because of the Mail2
issue?
Mr. Lyle. No, sir.
Mr. Waxman. When did you learn that the Mail2 issue may
have affected the production of documents by the White House in
response to congressional and independent counsel subpoenas?
You did learn that. That was April?
Mr. Lyle. That was in that April meeting that I described
earlier for Congressman Barr.
Mr. Waxman. If there was not a perceived problem regarding
document production, why was the Office of Administration
concerned about the Mail2 reconstruction?
Mr. Lyle. In April 1999, the Mail2 reconstruction issue had
been dealt with, but you still have archival issues that need
to be addressed. Federal Records Act, Presidential Records Act,
the Armstrong litigation, all of those precedents control
records that need to be stored for historical purposes, so the
focus as far as it related to the e-Mail2 issue during my
tenure has been on the Federal records compliance issues, the
Presidential Records Act and the things I've talked about so
that you have a historical record that can be transferred to
the National Archives Records Administration and also to the
Presidential library.
Mr. Waxman. When the Office of Administration did see the
Mail2 problem as something that needed to be fixed for these
archival reasons related to Presidential records, why did the
office not begin the Mail2 reconstruction project in 1999?
Mr. Lyle. At the time in 1999--and when you're talking
about in the April 1999 timeframe, in 1999 we were in the midst
of one of the most difficult information systems and technology
challenges facing the Executive Office of the President. It was
the Y2K crisis. It not only confronted the White House, it
confronted the rest of the country and, in fact, the rest of
the world. It was an extraordinary undertaking. There were many
systems that needed to be Y2K-compliant to ensure that when the
year 2000 came, that the Presidency would have computer systems
that worked.
Mr. Waxman. If I could just interrupt you for a second.
This Congress has done pretty much nothing on any important
issue. We have a lot of recesses. We have short-week timeframes
to do basically nothing because we're deadlocked, but I want to
inform everybody that yesterday the House of Representatives
voted unanimously to praise everybody who worked on correcting
the Y2K problem because when the calendar clicked over into
this new millennium, all the fears we had about Y2K did not
come about, and we praised all the people that worked on it. So
I assume you were included in that.
Mr. Lyle. I appreciate that, and I know that my staff will
appreciate it, too. There was a small number of people in the
Information Systems and Technology Division, only 40, 45
people. They worked very, very hard with our contractors to
achieve a success that was--I would describe as nearly an
impossible task and was only as a result of their hard work and
the support that we received that we were ultimately able to
succeed.
Mr. Waxman. So you were trying to decide how much money to
spend on making sure you complied with Y2K or how much you
could divert to deal with the Mail2 problem?
Mr. Lyle. Our No. 1 purpose was ensuring Y2K compliance,
and as I said, this was a huge undertaking. It was drawing
every American personnel resource we had available in the IT,
information technology, area. All of our staff was working
very, very hard on that project in one form or another, and it
was, as I said, a huge task that we very proudly achieved.
Mr. Waxman. When did your office start to focus on the
Mail2 project?
Mr. Lyle. After the Y2K issue was behind us, we started
looking at it in a February--January, February, March
timeframe.
Mr. Waxman. Of this year?
Mr. Lyle. Of this year, of 2000, remembering that February
29th was also a Y2K issue in terms of the leap year component.
So it's in this timeframe that we had a comfort level that we
could proceed with some of the projects that we weren't able to
get to while we were focused on this largest--I would say the
largest computer renovation in the history of the White House,
and I would dare say other places as well.
Mr. Waxman. We have briefing papers which demonstrate that
Beth Nolan, who is White House counsel, was told about the
project at a January 2000 briefing about current records
management issues, and this was before the press stories about
the Mail2 began appearing in mid February. So is it accurate to
say that the Office of Administration started addressing the
Mail2 reconstruction issue before those stories first appeared?
Mr. Lyle. That's correct, sir.
Mr. Waxman. Did you attend the briefing for Ms. Nolan?
Mr. Lyle. Yes, I did.
Mr. Waxman. And what was the purpose of that briefing?
Mr. Lyle. There was a meeting that was coming with the
National Archives and Records Administration [NARA], in
preparation for the Presidential transition, and we had gone to
White House counsel to explain to them the information that we
knew relative to the anomalies, and where we were with respect
to those. From a records management point of view, it was for
purposes and in preparation of a meeting with NARA, and we
discussed a variety of issues with respect to the e-Mail2 and
the letter D anomalies in the records management context.
Mr. Waxman. After the briefing, what steps did the Office
of Administration take to make sure that Mail2 e-mails were
reconstructed?
Mr. Lyle. Following that briefing, a number of things took
place. First we looked into costs associated with doing an e-
Mail2 reconstruction. We needed to do a marketplace survey and
develop cost assessments so that we could determine what
contractors would be available to do the project, how it would
be done. I instructed my information technology staff to
prepare a plan that could be considered by contractors in the
bidding process so that we could get moving on. We needed cost
estimates for the project so that we could seek appropriate
funding from our appropriators in connection with that effort,
and all of those steps needed to be taken.
I received ultimately a cost assessment proposal from my
IT, information technology, staff, I believe, around March 14th
of this year, and it's from that that we began deliberate steps
in that area.
Mr. Waxman. We are going to hear tomorrow from the White
House counsels themselves, and they are going to tell us about
their role in all of this. But as I recall from Beth Nolan's
testimony several weeks ago, the system was found to have this
problem, that it wasn't getting all the outside e-mails on the
central system. They found out about it and they fixed it
prospectively. And then a question came up: well, what about
the retroactive e-mails that might have fallen through the
cracks? And there were some tests done on the individual
computers of some of the people involved with Monica Lewinsky,
and they found that some of those e-mails that weren't on the
centralized system were, in fact, on the computer systems of
Miss Currie and others, and those had all been turned over to
the investigators.
So she testified that as far as the White House counsel's
office knew, everybody was getting the information they
requested on e-mails as well as everything else. And now we are
finding out that might not have been the case, but they
believed that to be the case. Do you have any information on
those issues?
Mr. Lyle. I'm sorry, sir, I do not.
Mr. Waxman. That wasn't your area?
Mr. Lyle. Right.
Mr. Waxman. We will hear from them tomorrow because that
sort of addresses the other part of this conspiracy that is
being painted before us by this committee's series of hearings
on this single issue. And one of my ongoing concerns about
congressional investigations regarding the campaign finance
issue, this issue and many others, is that they cost millions
of dollars to the taxpayer without producing substantial
benefits.
For example, I asked the GAO to do a survey in 1998 that
underscored the burden that congressional campaign finance
investigation, just that investigation, placed on the Federal
agencies, and that has nothing to do with this particular
issue. But 21 Federal agencies reported that in the 18-month
period between October 1, 1996 and March 31, 1998, they
received 1,156 campaign finance inquiries from Congress, and
GAO calculated the cost of responding to these inquiries cost
the taxpayers $8,767,753. That money could have been used for a
lot of important purposes.
You note in your testimony you were involved with
responding to requests related to the investigation of the
White House data base known as the WhoDB; is that what it is
called, WhoDB?
Mr. Lyle. That's correct, sir.
Mr. Waxman. That investigation conducted by this committee
spent over 2 years examining whether anyone stole the
President's holiday card list, and whether disclosing who
attended White House social events constitutes theft of
government property. Can you imagine? We spent all that time
trying to figure out if there was theft of government property,
and the investigation involved depositions of over 35
witnesses, the production of over 43,000 pages of documents.
One witness from the Office of Administration estimated
that he spent about 1,500 hours, the equivalent of over 37 work
weeks, between June 1996 and September 1997, responding to
WhoDB information requests. WhoDB is a different issue than
Mail2, and on that issue they spent all of this time and money
to find that there was nothing there.
Mr. Heissner, can you estimate how much time you spent
responding to requests on the WhoDB investigation? I asked you
before and maybe you could tell us if you have done any
estimate on it.
Mr. Heissner. Yes, sir. We tracked the number of hours
reported to have been spent on WhoDB, and to the best of my
recollection for the year of--fiscal year 1997, the IS&T staff
reported over 3,000 hours during that year, and of those 3,000
hours, somewhat over 1,000 were attributable to the work that I
did.
Mr. Waxman. I think it is important to have congressional
oversight, but I think it is clear this committee frequently
goes too far.
Mr. Lyle, Mr. Burton suggested that the White House was
trying to run out the clock by delaying production of the Mail2
reconstructed e-mails until after the election. Is that
accurate?
Mr. Lyle. No, sir.
Mr. Waxman. Why not?
Mr. Lyle. We are working very hard to reconstruct these e-
mails as quickly as we can. We have a contractor on board. We
have an independent validation and verification contractor that
we will be having on board within days and proceeding as
quickly as we can to reconstruct the e-mails.
Mr. Waxman. I just want to close the time I have here by
making the comment, I am as strongly against obstruction of
justice as any Member of the Congress. I don't look back at the
time of President Nixon and President Bush as the golden age of
this country. I don't think President Nixon was forced out of
office because simply 18 minutes of a tape was missing. He was
forced out of office because he misused the Office of the
Presidency to go after American citizens, to obstruct justice
in a very genuine way, and the Congress found that--at least
the House found that he was guilty of obstruction of justice
and brought impeachment charges against him.
And I can recall personally having been in the Congress
over the years of President Bush how many times we requested
information when we were told that executive privilege would
preclude them from giving us important information. I thought
that was often used inappropriately, but we certainly didn't go
out and do the kinds of things that are being done now by the
Republican-led Congress.
If there is credible information that anyone obstructed
justice or intentionally concealed information, then I want to
do everything and I will do everything that I can to ensure
prosecutions are brought. I don't care if it is a Republican, I
don't care if it is a Democrat. If anybody is obstructing
justice, they ought to be prosecuted, but I am equally opposed
to frivolous charges of obstruction of justice or
unsubstantiated allegations that unfairly damage the
reputations of people of integrity and good character. I resent
it. I think it is unprofessional. I think it is unAmerican when
people misuse their positions of power, whether it is President
Nixon or Members of Congress, to make unsubstantiated
allegations, smear people, accuse them of obstruction of
justice, accuse them of criminal wrongdoing, frivolously
sending letters to the Justice Department asking for
prosecutions and then attacking the Justice Department if they
don't bring prosecutions, even though there was no evidence of
wrongdoing to substantiate any kind of criminal actions.
I think people have power but they need to restrain their
use of that power and act in a sense of fairness and decency.
If there is a criminal act, let's prosecute. If something has
been done inappropriately, let's criticize it, but I don't
think that these unsubstantiated allegations and smears ought
to be tolerated.
I yield back the balance of my time.
Mr. Burton. I will take my time, but I am going to yield it
to Mr. Hutchinson in just a moment. Let me just say that Mr.
Waxman once again has covered the waterfront. The campaign
finance scandal is of great interest to people all across the
country. Communist China gave money to the President's
campaign. Money has been returned from the DNC; Taiwan gave
money; Egypt gave money; South America gave money. We know
about the Shiite temple. I mean, you know, he can say that this
is just a waste of time, but the fact of the matter is people
know that there was scandal involved there.
Mr. Waxman said you know this e-mail problem, you know,
they can get this done in 6 months. They have known about it
for 2 years. They knew about it in 1998, and they kept it under
wraps from the Congress. Why didn't they fix it back in 1998
instead of waiting now and saying it is going to take 6, 8
months, so it carries out past the election?
Mr. Waxman also flat out misrepresented what the Insight
magazine article said. He said the article claimed Congress
knew about the problem. It does not say that, and I will read
what the article says. It says, so why hasn't the White House
complained and informed various panels in star of the
discovery. Insiders say there is a lively debate going on
involving a fair amount of legal hair splitting. We did not
know about it and you ought to read the article clearly.
Mr. Waxman. May I ask unanimous consent that the full text
of the article be in the record?
Mr. Burton. No. Mr. Waxman belittled the WhoDB
investigation. He didn't tell everyone that FBI Director Freeh
said that he thought an independent counsel should look at this
matter. This observation was made in a memo that the Justice
Department will not make public. That is the FBI Director. I
yield to Mr. Hutchinson.
Mr. Hutchinson. I thank the chairman. Trying to take my
mind and sort of analyze where we are and what the relevant
issues are before this committee, first of all, I think it is
clear that there were subpoenas issued by this committee and
others for information, and those subpoenas were not properly
honored in the sense that records were not retrieved for
compliance with the subpoena.
Second, another point is that critical information has not
been revealed to Congress because of a computer problem there
was not a total review of documents that were under subpoena.
Third, whether the missing e-mails contained pertinent
information to investigations being conducted by this Congress
and other investigative bodies.
And of course, the final question is if there was failure
to comply, was it intentional, and that is--we don't have the
answers to all of these questions, but we do know that these
are important questions to ask. They are important issues for
this Congress to deal with because I believe that when
subpoenas are issued, they need to be complied with, and if
they cannot be complied with, certainly the subpoenaing
authority needs to be aware of the problem and the reasons for
it.
Now, I was listening to the testimony of Mr. Lyle, and it
is putting this back together. Of course, the e-mail problem
became known in May or June 1998, and it became known to the
administration during that timeframe. Congress was not advised
of the problem that we could not retrieve and review all of the
subpoenaed materials for compliance. Mr. Lyle, you indicated
that you learned of the problem in April 1989; is that correct?
Mr. Lyle. Of the e-Mail2 problem, sir?
Mr. Hutchinson. Yes.
Mr. Lyle. Correct, in that timeframe.
Mr. Hutchinson. And that you had meetings with Beth Nolan
during that timeframe as well?
Mr. Lyle. No, sir, I'm sorry, I had a meeting with Ms.
Nolan in January of this year.
Mr. Hutchinson. January of this year?
Mr. Lyle. Yes, sir.
Mr. Hutchinson. Well, you indicated in response to
questions of Mr. Waxman that you were wanting cost estimates as
to what it would take to do the records retrieval.
Mr. Lyle. The records reconstruction of the e-Mail2 and the
letter D backup tapes, yes, that was in this year.
Mr. Hutchinson. This is in order to reconstruct the records
and to review them for compliance with the subpoena?
Mr. Lyle. Well, it's for reconstruction of the records. One
of the things that you will be able to do is do an automated
records management search, but it will also allow for those
documents and those records to be transmitted to the archives
and to the Presidential library.
Mr. Hutchinson. As well as reviewing the ARMS system to
retrieve any records that would be pertinent to a subpoena?
Mr. Lyle. Yes, that's what I said.
Mr. Hutchinson. Well, we're saying the same thing.
Mr. Lyle. Yeah. I just wanted to add that there are other
components.
Mr. Hutchinson. Other purposes. One is for your archival
purposes, and the other one is for compliance with the
subpoena. That's what I'm interested in.
Mr. Lyle. Right. You can put--you can search the automated
records management system to comply with subpoenas or
information requests or whatever you, yes.
Mr. Hutchinson. We understand each other.
Mr. Lyle. OK. I just want to be clear, sir.
Mr. Hutchinson. And so that was a purpose of it and that
was important, but the question is, whenever it is known in May
or June, the problem, no one was advised of it in terms of
Congress; and second, you never went to the appropriators in
1999 to ask for money to assist in hiring a contractor to
retrieve these documents and to get the system corrected; is
that correct, Mr. Lyle?
Mr. Lyle. As far as what was conveyed to this committee in
May or June 1998, I can shed no light on that for you. With
respect to the appropriators in 1999, during our fiscal year
2000 appropriations hearing, the e-Mail2 project was one of
those projects that I discussed earlier, that we had to set
aside for Y2K as our focus and our No. 1 priority.
Mr. Hutchinson. Let me ask you a question. In 1999, did you
go before the appropriators and ask for money to correct this
system and to retrieve the records and hire a contractor for
that purpose?
Mr. Lyle. Our purpose was the Y2K crisis.
Mr. Hutchinson. I'm asking you a simple question.
Mr. Lyle. Yeah, I'm sorry.
Mr. Hutchinson. You can answer it yes or no.
Mr. Lyle. No, the answer is, we did not ask for funds to do
the e-Mail2 reconstruction in the fiscal year 2000 budget
submission during the year 1999, calendar year 1999, in that
our, as I said, our singular purpose was Y2K compliance. In
other words, you had to prioritize. If you have a computer
system that doesn't work, period, your systems will not
operate. You can't serve--you can't function.
Mr. Hutchinson. Your priority was Y2K compliance.
Mr. Lyle. Yes, sir.
Mr. Hutchinson. And so you did not put it as a priority,
advising the appropriators that you also have a problem in the
retrieval system, and that would allow you to comply with
subpoenas of Congress.
Mr. Lyle. Well, subpoenas of Congress, in 19--in the
timeframe that I was operating under, I'm not aware and I don't
know--and I believe my staff is not aware of any subpoena
compliance issues. We have no knowledge of whether or not--what
communications took place between White House counsel's office
and this committee in respect to your subpoenas or any other
information requests.
Mr. Burton. My time has expired. We'll come back to you in
just a minute. You can pursue that further. Mr. Ford.
Mr. Ford. Mr. Chairman, thank you. I don't really have many
questions. I really just have a comment. I'm frustrated like
all of us, I would imagine all of us in the Congress that we're
continuing to sort of pester these people from the White House
and Department of Justice. I appreciate you being here this
morning and appreciate your responding to some of the
questions, as ridiculous as some may be.
I would hope, Mr. Chairman, that the same zeal that we're
applying to today's hearing we could apply to some of the more
constructive things that people would rather have us doing. I
think if we just sort of take a second to step back and listen
to some of the questions we are actually posing with almost a
serious tone in our voice it's somewhat embarrassing. I
understand tomorrow we're going to invite folks who no longer
work at the White House who did work at the White House back up
to talk about these issues.
I share your belief, Mr. Chairman, that people do care
about campaign finance reform, they do care about allegations
of campaign finance abuse, but they also would probably be
interested in us doing something about it as opposed to
continuing to investigate, investigate and investigate.
I think it's important to note that all of the witnesses I
think have answered questions as sufficiently as they can, and
regardless of how we seek to frame them, I don't believe
they're going to provide different answers because they're
trying to answer truthfully.
So I would hope that we would cooperate with them as well,
particularly when we ask questions that require more than a yes
or a no, that we at least allow the witnesses to elaborate.
Last, Mr. Chairman, I would hope that after we complete
this, and I thought that we would probably be finished
investigating after some point, I thought the President said it
very well the other night when he said we only have 7 months
left to investigate him and hopefully we'll get all the
questions. I shouldn't say ``we.'' You guys will get all the
questions answered that you want.
Quite frankly, I'm satisfied with the answers that I have
heard by the panelists, and I would hope that you would express
to your colleagues back at the White House and the Department
of Justice, who are working tirelessly on a whole range of
issues, that some of us in the Congress actually believe you're
doing some decent work, and we look forward to working with you
on a whole range of other issues to try to improve the lives of
most Americans, or even all Americans, even those represented
by my Democratic colleagues and Republican colleagues.
I want to apologize on behalf of this committee for the
White House and for the Justice Department and others, and
don't get me wrong, I think there are legitimate times when I
think you should come here and answer our questions, but I
think at some point in time it's safe to say we have gone
completely overboard. I think that we have become obsessed and
intoxicated with the notion of investigating. When we can't
think of much to do, we invite a few Justice Department
officials and White House officials to come and answer
questions about fantasies and concoctions and fabrications that
some of us in this committee may have.
So on behalf of the committee, I apologize for some of the
questions you're receiving, and I appreciate your coming before
the committee today, and with that I yield time to my friend
from Massachusetts, Mr. Tierney.
Mr. Tierney. Thank you, Mr. Ford. I'm going to try
something here of an explanatory nature and see how I make out.
If you can explain it to me, though not particularly computer
proficient, maybe then everybody can understand it.
Go back over some of the timeframes Mr. Hutchinson was
referencing. Apparently, it was November 1998 when the system
was fixed, at least prospectively.
Mr. Lyle. Yes, sir.
Mr. Tierney. In 1996 was when the problem actually
occurred, so you have got a 2-year period from 1996 to 1998.
Mr. Lyle. It's my understanding it was 1996 to 1998 with
respect to the e-Mail2 issue.
Mr. Tierney. In June 1998, the White House counsel
discovered that there had been a problem.
Mr. Lyle. I'm sorry, in June 1998?
Mr. Tierney. 1998.
Mr. Lyle. Mr. Lindsay notified White House counsel relative
to the e-Mail2 problem.
Mr. Tierney. But also notified them that, in fact, they
were working on the problem, and then in November of that year
they would have determined that it was fixed, or at least White
House counsel would have been told it was resolved.
Mr. Lyle. That's the information that's been provided to
me.
Mr. Tierney. And it's not uncommon, I would guess, for
lawyers in the White House counsel's office to talk past the
technical people in terms of who understood what aspect of the
situation.
Mr. Lyle. I have a lot of technical people who work for me,
and I'm not the most technical of them, and yes, that happens
even to me.
Mr. Tierney. So that around April of the year when the
White House counsel was supposed to be responding to subpoenas,
it's very likely, or seems very clear that they thought the
matter had been resolved, and that all of the materials that
had been requested had, in fact, been submitted.
Mr. Lyle. Based on the information that I know of, I can't
shed any more light on in terms of what was communicated to
White House counsel's office by Mr. Lindsay or not.
Mr. Tierney. And then after that, once the issue is
resolved and the technical people told them that, in fact,
there may have been some old e-mails incoming that might not
have been actually determined; you went on that effort in the
case to trying to ascertain those e-mails and discover them
since that time; is that right?
Mr. Lyle. We're trying to reconstruct them as we speak.
Mr. Tierney. I think that's pretty clear. Thank you.
Mr. Burton. Does the gentleman yield back the balance of
his time?
Mr. Ford. I do, Mr. Chairman.
Mr. Burton. The gentleman yields back the balance of his
time. The one thing that needs to be made clear is that the
timeframe that we are very concerned about regarding the
campaign finance investigation was from September 1996 to 1998
when this whole problem arose. It's very relevant to that
investigation, that particular investigation, and that's why
it's so important.
Mr. Hutchinson.
Mr. Hutchinson. Thank you, Mr. Chairman. And I certainly
want to agree with my colleague from Tennessee, and Mr. Lyle, I
do not want to cut you off. I just think that we were reaching
an agreement.
Mr. Lyle. We were, and again, I'm doing that, I'm sorry, I
didn't mean to interrupt you. I know we were trying to get to
where we understood each other, and I appreciate that.
Mr. Hutchinson. And because of the 5-minute rule, I try to
move fairly quickly, but I certainly want to be fair in the
questions to you. I think what you were testifying to is that
what you were concentrating on the Y2K problem, and it was not
your responsibility to comply with subpoenas and----
Mr. Lyle. Well--I'm sorry, go ahead and finish your
question.
Mr. Hutchinson. Well, I mean, if I'm incorrect in that, but
I was trying to give you a way out here. The point I was making
is that again, this was in May or June 1998 when it was first
learned about by the White House, Congress was not advised of
it, and no requests were made for money to help retrieve the
records that were under subpoena. That was almost 2 years ago.
We still have not retrieved the records, and it was during that
time that there were some very important investigations going
on in which this Congress was being pressured to wrap it up,
and the White House said how long are you going to do the
investigations when, in fact, they knew that there were records
that were being stored at the White House that had never been
reviewed and turned over to this Congress, and we were never
told of the problem. And so I think that those are legitimate
frustrations. Now do you want to respond to what I just said,
Mr. Lyle?
Mr. Lyle. I can't tell you in terms of--with respect to
subpoenas, we have a process in place that is used to respond
to subpoenas. The Office of Administration, like any other
Executive Office of the President agency, is responsible to
provide information to the White House counsel's office so that
they are able to respond to subpoenas that they receive or
information requests that they receive. So we do participate in
that type of process. So the Office of Administration in that
capacity, and as an information provider, does participate.
Mr. Hutchinson. And the administration did its job by
telling the White House counsel's office that there was a
problem.
Mr. Lyle. Yes. Mr. Lindsay advised me that he had done so.
Mr. Hutchinson. And so it was the White House counsel's
responsibility at that point to advise the appropriate
congressional subpoenas, or anyone else who had something under
subpoena as to the problem.
Mr. Lyle. The White House counsel's office is the point of
contact for the discussions and communications with this
committee and the other inquiring bodies.
Mr. Hutchinson. Thank you.
Mr. Heissner, did you ever see any subpoenas? Did that come
within your responsibility to actually know the information
that was under subpoena?
Mr. Heissner. To the best of my recollection, the process
would involve receiving an e-mail document that would be sent
to the Office of Administration and its staff that would
require responding to subpoenas. I may have seen some physical
subpoenas, yes.
Mr. Hutchinson. And sometimes you would know where the
subpoena came from and sometimes you would not?
Mr. Heissner. That's correct.
Mr. Hutchinson. And many times it would just be a request,
we need these records, they're under subpoena but you might not
even know who the subpoena came from; is that correct?
Mr. Heissner. That's correct sir.
Mr. Hutchinson. And who would customarily send you that e-
mail?
Mr. Heissner. The current process involves the receipt of a
broadcast of an e-mail to all staff by White House counsel, and
then there would be a separate e-mail, a copy of it sent,
separate e-mail be sent out by IS&T management, someone in the
front office would send it to all staff, and that person would
then collect the responses to the request for information. This
is the current process. In the past I collected information,
but it would be followed back through channels.
Mr. Hutchinson. Was that the process that existed back in
1998 and 1999?
Mr. Heissner. That was a similar process. It would be
followed to us through White House counsel. We would respond
and then send the information back to the White House counsel,
and I might add, those requests were taken very seriously. We
took all diligence in making sure that the request was
understood, to analyze what the information was that was
sought, and then to develop the software to give us the
answers.
Mr. Hutchinson. It was very serious from your standpoint in
the Office of Administration, you don't know what happened once
you gave the information to the White House counsel?
Mr. Heissner. That's correct, sir.
Mr. Hutchinson. And you did your job, or Mark Lindsay or
someone else in your Department gave the information to the
White House counsel that there was a glitch in the computer
system, they're not able to review it, and you knew that was
important information that the White House counsel should know
about.
Mr. Heissner. That's correct.
Mr. Hutchinson. Now, I want to go to exhibit 81. It's been
referred to previously, and I just need to get a better grasp
of this. This is a document that you created, correct, Mr.
Heissner?
Mr. Heissner. That's correct, sir.
Mr. Hutchinson. And the first sentence says while I'll be
glad to write up something to the information request channeled
to us via White House counsel in response to various requests
from Congress, etc. Who is this being--who are you responding
to?
Mr. Heissner. I was responding to Ms. Cleal, who was my
supervisor at the time who had made the request by telephone.
Mr. Hutchinson. And the request by telephone was work up
how many hours you're devoting to this, this might be some
information we might want to give to Congress?
Mr. Heissner. The request was to address the issue of
information requests and the impact it would have--that it had
on us at the time and to provide some information that might be
suitable for submission to Mr. Lindsay in his presentations to
Congress.
Mr. Burton. I'm sorry, Mr. Hutchinson, your time is
expired. We'll come back to you. Who seeks time on your side?
Mr. Davis, do you seek time?
Mr. Davis of Illinois. Yes.
Mr. Burton. Mr. Kanjorski, do you need time?
Mr. Kanjorski.
Mr. Kanjorski. There's an article that appeared in the
Washington Times today about certain involvements of e-mail of
Mr. Blumenthal. Who is familiar with that?
Mr. Lyle. I am familiar with that article, sir.
Mr. Kanjorski. Did you read that article?
Mr. Lyle. Yes, I did.
Mr. Kanjorski. Could you tell us what basically happened
there and what's the answer to that story if there is an
answer.
Mr. Lyle. The information that I have right now on that is
that there was an e-mail that was sent to Mr. Blumenthal from
the U.S. Embassy in England, and the e-mail ended up in what my
technical people tell me is a loop, and what that means is that
the e-mail was sent over and over and over again, and as a
result of that loop that occurred, a great volume of that same
e-mail ended up being repeated over and over and over again,
and it grew into a large mass, I guess is the best way to
describe it, of data.
As a result, Mr. Blumenthal's computer failed. It could not
take that massive amount of information. So he called over, and
our IS&T people worked with him to correct his system.
And the issue then arose, we have this e-mail that had been
sent over and over and over again, what do we need to do about
it, and the information that I was provided was is that the e-
mail substance was in that mass, identical, duplicates of this
e-mail were created. The director of the Office of
Administration made a determination in consultation with
counsel's office--Office of General Counsel and the Office of
Administration that the e-mail should be preserved, and it has
been preserved, and the duplicates, the same e-mail over and
over again, that mass of information has been deleted so that
it doesn't jam the system and cause system failures.
That's what we have--that's the information I have
currently on that, sir.
Mr. Kanjorski. That came from the American Embassy in
England?
Mr. Lyle. Yes. The U.S. Embassy in England is the source of
that looped e-mail that sent those duplicate e-mails over and
over and over again.
Mr. Kanjorski. You don't think that perhaps it was an
attempt by the United Kingdom of a terrorist attack on the
White House computer system?
Mr. Lyle. I don't believe that the United Kingdom launched
a terrorist attack on the United States in the form of this e-
mail.
Mr. Kanjorski. Don't you think we ought to have a
congressional investigation on that?
Mr. Lyle. No, sir, I do not. It's one of those things that
happens.
Mr. Kanjorski. I was suspicious because the other night I
watched a program of the President in the Executive Office
building riding a bicycle, and there was present another
individual on a bicycle, and I think it may have been the prime
minister of England, and I was wondering whether there's a
seizure going on at that time.
Mr. Lyle. And I have no knowledge on the bicycle episode,
sir, but I can say that I hope that the floor was cleaned after
he was done.
Mr. Kanjorski. Mr. Chairman, I have no further questions.
Mr. Burton. There is damage to the hood of my car however.
Who's next?
Mr. Shays.
Mr. Shays. Good morning, gentlemen. My challenge is when
you don't have an honest President, you wonder if those who
work for a dishonest President are telling the truth. So I
start out with that basic question. I still want to know who
hired Craig Livingstone, the young man in the White House who
had possession of over 800 sensitive FBI files, almost entirely
on Republicans, and I want to know who he allowed to see those
files.
Now the interesting thing is Insight Magazine suspected
that the First Lady hired him, but I wouldn't make that
determination based on what Insight Magazine said. So I'm not
even at the level of trusting, but verifying. I have a lot of
suspicions.
And I have little trust that this White House is telling us
the truth, and I realize that you are, for the most part,
career people who work for the White House, but I know other
career people who work for the White House, they worked for the
travel office and they were fired, and then the FBI and the IRS
were forced to look at them and I don't know why. Then you had
this e-mail mess at the White House, which only heightens my
suspicion. So have a little patience with me, and I hope Mr.
Waxman will as well.
I know 120 people have basically taken the fifth or fled
the country. 79 people have taken the fifth amendment. They
don't want to answer questions. So there hasn't been much
cooperation.
Now, what I do know is that 2 years ago, in May 1998, it
was discovered that we had a missing e-mails problem, and I do
know in 1998 on the 18th, we had a test, and I do know almost 2
years ago on June 19th, the White House counsel, Mr. Ruff was
told of the problem by Mr. Lindsay. Now, from June 19 to
November 20th, the problem wasn't solved. So we still had a
continuation of the problem, and I do know this, that no one
from the White House told this committee.
Now we have Mr. Ruff telling us in 19 that we had all
relevant information, and that we had a complete document of e-
mails. So he was on file before this committee telling us we
had the documents, and then he knew on June 19th, and I realize
that's not both of you, but I just want you to have a sense of
the challenge we have.
Now there was the Insight Magazine in November 1998, but
Insight has made accusations, pretty incredible accusations
about the President that none of us would want to believe. Then
we knew in the 20th of this year from the Washington Times, it
got to be a little credible, then Northrop Grumman, on March
23rd came and testified, and then, in my judgment, the White
House came clean.
Now what happened during that time? We have 246,000 e-mails
that we don't know about, that weren't transmitted. Now some of
them may not be relevant, but there are 246,000, and they're
interesting people. They're Betty Currie, they're Ira
Magaziner, they're Phil Kaplan. Now why would I be interested
in what Phil Kaplan has to say? He's the gentleman whose
office--he's the special assistant to President and deputy
staff secretary, Office of the Staff Secretary. His job is the
conduit into which all messages to the President come, and this
is one e-mail that we happen to discover because it didn't
disappear in these 246,000 e-mails that we can't find, that you
can't find, and this is a memo informing the President that
because of a failure to comply with the law they're going to be
fined $1 million potentially in fines, campaign fines. This was
from Harold Dickeys, but it's under Phil Kaplan. Now, Phil
Kaplan has 944 potential e-mails.
I want to know how many other potential e-mails like this
we haven't found, and then you have memos from Mr. Lindsay, 17.
You have Ira Magaziner, 3,693. You have Bill Clinton, too. You
have Betty Currie as well. So the problem is we need to know
the truth, and what I'm hearing is that you all told the White
House counsel everything you know. The question I have is were
you surprised that the White House counsel, given what you
knew, didn't notify us of the problem? I'll ask you, Mr.
Heissner.
Mr. Heissner. I guess I would not be privy to the
communications between White House counsel and this committee.
Mr. Shays. Is it your testimony that we knew about this
problem?
Mr. Heissner. I have no knowledge----
Mr. Shays. I want you to be real careful with this one OK.
I want you to be careful with my question. The question is, did
you have any understanding that maybe this information had not
been made public and forwarded to the committee? Was this
something that the public knew about or did you know about?
Mr. Heissner. If the question is did I have any knowledge
of the communications between the White House counsel and to
this committee of information that we provided.
Mr. Shays. And the answer is no, correct?
Mr. Heissner. The answer is I have no knowledge of the
information that was forwarded or----
Mr. Shays. Let me ask my final question then, sir. You're
aware that this was called project X, and you're aware that you
didn't like that term. It is your knowledge, isn't it, that you
knew that the public didn't know about this?
Mr. Heissner. I can't say that, sir. I don't know that for
certain.
Mr. Shays. So you never suspected--you thought--you never
suspected that this was information just kept within the White
House and it wasn't made public, you're going to be on record
as saying--giving your response about the project X, you want
to be on record as suggesting that you don't know whether or
not the public and the press were aware of this issue?
Mr. Heissner. I would have to speculate, sir.
Mr. Shays. And what is your speculation?
Mr. Heissner. My speculation with respect to what you term
project X, it's difficult, sir. It's difficult to say whether
that information was made public or not.
Mr. Shays. Did you think it was made public?
Mr. Heissner. It's possible that it was made public, yes.
Mr. Shays. Did you think it was made public?
Mr. Heissner. I don't know, sir.
Mr. Shays. You don't know what you thought?
Mr. Heissner. Well, if it were my speculation I would
suspect that it would become public perhaps through--indirectly
through communications between individuals and the press. I
really don't know.
Mr. Shays. Don't you think that a reasonable person like
you would have come to the conclusion that if there were
246,000 potential e-mails that hadn't been forwarded to the
committee, and there was no public discussion of it, that the
public probably didn't know about it?
Mr. Heissner. It was my responsibility to pass information
through channels. After it left that sphere, I did not followup
on what actually was made public or not. It was not something
that I was----
Mr. Shays. I'm sorry, I'll be done with this question then.
Did you object to this being referred to as project X?
Mr. Heissner. Yes, I did, because it gave a sinister
connotation to what I considered was a mechanical, technical
failure, and it deserved to be named properly as an ARMS----
Mr. Shays. You understand why I would be cynical when I saw
that memo.
Mr. Burton. Sorry, the gentleman's time has expired. Mr.
Davis, I think we have time for you and then we'll head for the
vote.
Mr. Davis of Illinois. Thank you, Mr. Chairman. I'll be
quick. Mr. Heissner, would you say that your basic
responsibilities are technical in nature or analytical or
policy analysis?
Mr. Heissner. That's correct. I think I view our
responsibilities as being technicians that provide the
information systems technology to deliver that technology to
policymakers and administrators.
Mr. Davis of Illinois. So the analysis of public opinion,
public awareness, of public scrutiny, public involvement,
that's not a part of what you're expected to do?
Mr. Heissner. That's correct, sir.
Mr. Davis of Illinois. Mr. Lyle, let me just ask, are you
satisfied that you have complied with the basic
responsibilities of your office relative to compliance, given
the technical problems that have existed, or the technical
difficulties of generating the information?
Mr. Lyle. Yes, sir.
Mr. Davis of Illinois. Do you feel that you have been
involved in any way in any stonewalling, delaying,
circumventing, denying, unwillingness to come forth with
information that you could provide?
Mr. Lyle. No, sir. In fact, just the opposite. I believe I
have been cooperative, as well as my staff.
Mr. Davis of Illinois. Thank you very much. I have no other
questions, Mr. Chairman.
Mr. Burton. We have a series of votes on the floor. We will
stand in recess. I'll ask you gentlemen to stick around. We're
sorry we have to hold you for a little while. We have a few
more questions. We stand in recess until fall of the gavel.
[Recess.]
Mr. Burton. While we're waiting for Mr. Barr, we'll go
ahead and yield to counsel who had some questions regarding the
appropriations process and the appearance of the White House
before that committee.
Mr. Wilson. Mr. Heissner, good afternoon. Mr. Lyle, good
afternoon.
I just wanted to try and establish one thing, Mr. Heissner.
From our perspective, you were in charge or one of the people
in charge of fixing the e-mail problem. It was a problem
discovered in June 1998. The e-mail we were talking about
earlier you wrote in February 1999. That's over half a year
after the problem was discovered. From our perspective, you
were supposed to be one of the problem solvers. Now, if you
didn't have the people or the money to fix the problem, from
our perspective it seems you had to know that there wasn't
going to be any progress, that the problem wasn't going to get
solved. One of the questions we really want to have answered
is, what did you do to fix the problem?
Mr. Heissner. I became involved in the resolution of the
problem very late in 1998. The environment in which it worked,
there was a great deal of ambiguity about roles and
responsibilities. The recovery of Mail2 server had not been
given to me until then, and then there was a meeting with Mr.
Barry and somebody else that we mutually agreed that this is a
responsibility that would fall within the systems integration
development branch. So this was maybe December 1998. At that
point Mr. Barry was taking the responsibility for reviewing the
processes that were going on to make sure what he called the
bleeding stopped.
Mr. Wilson. I don't have a lot of time. What I'm looking
for are the affirmative steps you actually took to solve the
problem. Did you ask for money? Did you ask for more people?
Did you complain to your management that things weren't going
forward? What affirmatively did you do to make this problem go
away?
Mr. Heissner. I reported to our management the need for
remediation. I was aware of that. In fact, the documentation
you have shows that I provided the new director of OA, of IS&T
with details as to the situation involved. I made some
recommendations about remediation.
The process had to go through proper channels, would go
through a COTR, Contracting Office's Representative, to
Northrop Grumman whose staff was performing the day-to-day
operations and were also looking at a way of correcting the
current problem.
Mr. Wilson. We've seen the documentation. I'm very
sympathetic to the career people that were involved in the
process because it appears they were very frustrated. Mr. Barry
appeared to be frustrated. You appeared to be frustrated from
looking at the documents. But what we're trying to find is, is
there a tangible expression of somebody moving forward before
February 2000? And that's what we're trying to find here.
We know all the explanations, but we haven't seen a request
for money. We haven't seen a request for people. We're hoping
you can help us out of that dilemma. Did you ever ask for
money?
Mr. Heissner. It was implicit that we would need funding to
perform that work because there was no funding under the
current contract with Northrop Grumman to perform that work.
Mr. Wilson. Let me stop you there for a minute. Mr. Lyle
came in for an interview last week, and he told us money was
not an issue. Money was not needed. That was not the problem.
You are sitting here today telling us it was implicit that
money was needed to move forward, which makes perfect sense to
us. It seems that if you had a problem to fix and you didn't
have the money and the people, you had to get it. And so our
issue here is you just told us that you needed to get money. Is
that correct?
Mr. Heissner. The issue was that we needed to receive
funding to proceed with the Mail2 server remediation task.
Mr. Wilson. The simple question I guess is, if you needed
to receive money to proceed, did you ever ask for it?
Mr. Heissner. It was implicit in the request--in the
statement of work we received from Northrop Grumman, which
indicated that the cost to develop a system to correct the--to
restore--to retrieve and restore the data would be on the order
of $600,000 and that went through proper channels to my
management at which point I was awaiting authorization to
proceed.
Mr. Wilson. But I understand it was implicit, and what
Northrop Grumman has given to you--in fact, we've seen letters
saying they weren't going to proceed or do anything unless they
got formal authorization. We understand what Northrop Grumman
did. What I'm looking for is somebody on the other side, on the
White House side saying you are to move forward and at the same
time asking for money to enable them to move forward. Because
if they weren't going to be funded, it's clear to us from the
documents received that they were not going to move forward. So
I have not seen--did you have a document where you signed
something that said I would like congressional funding to move
forward?
Mr. Heissner. Not to my recollection is there a document
that requests the funding, but there are documents that
indicate that IS&T was waiting for obtaining approval to
proceed associated with funding being made available to us.
Mr. Wilson. Who was supposed to be--who were you waiting
for?
Mr. Heissner. The issue went through proper channels. It
would go to the director of IS&T and from there would go to the
director of OA and perhaps general counsel to be addressed.
Mr. Wilson. Those are the channels. You were waiting for
directions from your superior?
Mr. Heissner. That's correct. I was waiting for direction
to proceed along with the funding that's required to do that.
Mr. Burton. Let me interrupt. You knew about the subpoenas,
though, because you said earlier in your testimony that you
were aware of subpoenas and you had seen some of the subpoenas.
So you knew about the subpoenas and you knew nothing was being
done and you didn't make a request for money to get the problem
solved so that the subpoenas could be satisfied from the
independent counsels and the Congress?
Mr. Heissner. I have a document here. It has a Bates Stamp
Number E 3877. It would be your No. 92, exhibit No. 92, if I
might draw your attention to that; and it might help
understand, perhaps, or explain.
As you see, this is a document which describes the current
state of the Mail2 reconstruction; and at the very bottom it
says, ``Current status: Awaiting funding and management
decision to proceed.'' And that's where I stood. I was waiting
for that to happen. I might have had informal conversations. I
don't recall having any formal documentation that would show
that I would keep on asking how soon they may receive this.
Mr. Wilson. To make sure we're fair to you, it's fair you
were waiting for directions from your superiors on how to
proceed; is that correct?
Mr. Heissner. That's correct, sir.
Mr. Wilson. Did you ever get directions from your superiors
to move forward?
Mr. Heissner. No, sir.
Mr. Wilson. At any time before the year 2000 did any
manager of yours ever come and say you must do something to get
this fixed?
Mr. Heissner. No, sir.
Mr. Wilson. Now, Mark Lindsay, who testified before us, is
going to come before us tomorrow again. He told us under oath a
few weeks ago, quote, my first instruction and my first belief
was to do whatever was necessary to fix the computer problem.
Now, did Mark Lindsay ever come to you and say this is what
we're going to do to fix the computer problem?
Mr. Heissner. No.
Mr. Wilson. You're the person that is managing this
problem. Did he ever come you to and ask for work product to--a
comprehensive plan as to how you were going to move forward?
Mr. Heissner. This was one of many tasks that we were
involved in, and it was kept open until direction to proceed
and funding would be made available. That's the status and how
we operated then.
Mr. Wilson. The question was, did he ever ask you to do
anything?
Mr. Heissner. No.
Mr. Wilson. He told us a couple of weeks ago, my No. 1
objective was to make sure this problem was resolved; and again
you have just told us he didn't actually ask you to do
anything. How does your inaction square with what Mr. Lindsay
told us?
Mr. Heissner. Well, Mr. Lindsay and I would not be speaking
on a regular basis on business like this. Communications would
go through channels. It would go through Mr. Lindsay, to the
director of IS&T, and from there would be followed down to me.
So this is not--would not be a topic of discussion that we
would be engaged in nor is it something that--I would not see
Mr. Lindsay all that often. It would be usually just in the
hallway. It would not be conversation dealing with these
issues.
Mr. Wilson. I can understand that. But from our
perspective, we're trying to decide if this was a priority for
Mr. Lindsay as he told us. It seems fair for us to assume that
at some point over the course of nearly 2 years he would seek
out the person who is in charge of the problem and he would say
to that person, you must do this. And you've just told us that
you did not receive directions from your superiors to actually
move forward with that project; is that correct?
Mr. Heissner. That's correct, sir.
Mr. Burton. We'll come back to the counsel in a minute. He
has about 20 minutes left on his time.
Mr. Barr.
Mr. Barr. Mr. Heissner, going back, please, to exhibit 81,
which was the subject of some earlier discussions, the February
5, 1999 e-mail. Turning your attention--as we had discussed
earlier, one paragraph above the let sleeping dogs lie comment
is the break in the text. The text says, we may not want to
call undue attention to the issue by bringing the issue to the
attention of the Congress because--and then it just stops and
then picks up a subsequent paragraph later on. Why is there
material missing there?
Mr. Heissner. The assumption that there is some material
missing is not correct. The original presentation of this
paragraph, as I'm looking at this, it looks like it's just one
sentence. It starts with ``while'' and ends with a period after
declining. So there's a clause while.
Mr. Barr. And ends where?
Mr. Heissner. At the bottom of the--just above the let
sleeping dogs lie.
Mr. Barr. No, I don't think that's a reasonable assumption.
The last three lines begin last year's with a capital L. That's
a new sentence.
Mr. Heissner. No, sir, that's not the way I communicate. In
the original, there is a bullet there, and it's my practice to
capitalize the first word following a bullet. The bullet does
not show this. You can see because, and then it has the first
line. There's a comma----
Mr. Barr. When you say a bullet, you mean what's found at
the bottom of the page?
Mr. Heissner. Yes. The bullet that's at the top would be--
would have been a graphic. That was inserted when I typed in
the text, and it would be a circle that's fully filled. It's a
graphic which does not reproduce, apparently, in the records
that are restored. The bottom part came from a document where I
actually entered the bullets by using lower case Os and there
they show.
As I see--issue information requests, to me that's one
sentence. I could have said, one, two, three; and if I had said
that, it would have saved us all a lot of speculating and
questions. The intention was because one, two, and three; and
you can see the punctuation there. It's a comma at the end of
the first sentence, a comma----
Mr. Barr. The bottom half of the page below the double dash
line, who typed that?
Mr. Heissner. I did that, sir.
Mr. Barr. You are a very precise typist.
Mr. Heissner. Thank you.
Mr. Barr. You use proper grammar. You start sentences with
a capital letter. You end them with a period. You have a
paragraph break where there ought to be a paragraph break. So
what you're telling me basically is to believe that you used
two entirely different writing styles. The writing style at the
top where you have the word ``because'' unlike every place else
you don't have a colon there before you list bullet items, and
unlike every place else in the document where you begin each
bullet item with a capital letter and end each one with a final
punctuation, a period for example, you don't do that here. And
you're saying that's simply because some of the graphics didn't
get picked up?
Mr. Heissner. That's correct. In the first case, I used
what's called an unordered list which had three clauses. This
is one sentence with several clauses. The second part there is
a list of items, and I use a colon. And then you see the items
that are listed are full sentences. They stand by themselves.
The first information requests part is essentially one
sentence, and it's just like saying because one, two, three or
A, B, or C or item, item, item, period.
Mr. Barr. I hear what you're saying, and I suppose that's
one explanation. So what you're saying is you have this break
in the first paragraph not because there's any information
that's not there but because there was something different
about this first paragraph that had graphics that weren't
picked up as they were in the bottom?
Mr. Heissner. That's correct, sir. In the first paragraph,
the method of entry was different from the method of entry in
the second paragraph. When you use--when I use the Lotus notes
e-mail software and I provide lists of items, I can go and
highlight those three sentences and specify I would like to
have a bulleted list. And the software inserts graphics that
cannot be normally--that were not retained in the records
management software.
Mr. Burton. Let me interrupt. The gentleman's time has
expired. I'm going to yield him my time, but I just want to ask
Mr. Heissner a question that's consistent with what you're
asking. Have you conducted a manual search of your e-mails in
response to the committee's subpoena? And did you find a copy
of your ``let sleeping dogs lie'' e-mail? And if you did this
manual search, did you find the bullet points and why don't we
have them?
Mr. Heissner. I performed a search. I printed off the
documents, and I submitted those documents through proper
channels as the process calls for.
Mr. Burton. Through proper channels?
Mr. Heissner. It would be through Christa Moyle in OA, and
IS&T collects the documents.
Mr. Burton. So the bullet points were on there then?
Mr. Heissner. That's correct.
Mr. Burton. You submitted them through the White House,
through proper channels?
Mr. Heissner. Submitted them through problem channels.
Mr. Burton. So why don't we have them?
Mr. Heissner. I have no knowledge.
Mr. Burton. So the proper channels--someplace along the way
there was a block as far as those bullet points are concerned
because we don't have them.
Mr. Heissner. All I can think is that the--there were two
copies of the same document, and this copy came out of records
management of the ARMS system. It was this copy that was
submitted rather than the paper copy I provided. The paper copy
I provided, sir, looks exactly like this, except it has those
graphics.
Mr. Burton. I understand, but the point is you ran those
through proper channels so they would come to the committee and
we never got them and you don't have an explanation why. I'm
not saying it's your fault, but somebody along the chain of
command evidently felt like they shouldn't be given to the
Congress for some
reason. We'll try to find that out tomorrow.
Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
Mr. Lyle, turn if you would, please, to exhibit 6.
[Exhibit 6 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.171
[GRAPHIC] [TIFF OMITTED] T9621.172
[GRAPHIC] [TIFF OMITTED] T9621.173
[GRAPHIC] [TIFF OMITTED] T9621.174
[GRAPHIC] [TIFF OMITTED] T9621.175
[GRAPHIC] [TIFF OMITTED] T9621.176
[GRAPHIC] [TIFF OMITTED] T9621.177
Mr. Lyle. I'm sorry, Mr. Barr?
Mr. Barr. Turn if you would, please, to exhibit 6. It's my
understanding that exhibit 6 is a set of briefing papers that
you circulated at a meeting in January of this year with Beth
Nolan, counsel of the President; is that correct?
Mr. Lyle. I believe this was circulated--if you look at the
top, it was provided by--on January 13th by Kate Anderson to
Beth Nolan.
Mr. Barr. This was a paper that was circulated at that
meeting?
Mr. Lyle. Yes. It was used at this meeting, yes, sir.
Mr. Barr. Did Ms. Nolan at that time ask how these
problems, that is, the Mail2 and letter D problems, affected
subpoena compliance or compliance with subpoenas?
Mr. Lyle. In the course of the discussions of these
anomalies, Ms. Nolan asked something along the lines--I'm
paraphrasing when I say this--but something along the lines how
would this affect a prior search relative to a subpoena?
Something in that--as I recall it--in that area.
Mr. Barr. What was your response to her inquiry?
Mr. Lyle. I said that the issue was--relative to the
subpoena, the question that she was asking had been dealt with
prior by Mr. Lindsay and Mr. Ruff and that I didn't know the
extent of what those discussions were because I wasn't there or
privy to them.
Mr. Barr. Was that the end of that discussion?
Mr. Lyle. No. Relative to the question about subpoena or
about the briefing?
Mr. Barr. Subpoenas.
Mr. Lyle. I believe that we offered to check with Mr.
Lindsay. I believe that was something that Kate Anderson had
said to check with him on did he in fact have that discussion
with Mr. Ruff.
Mr. Barr. What followup did you undertake?
Mr. Lyle. After the meeting, Kate Anderson and I went to
meet with Mr. Lindsay.
Mr. Barr. Who did?
Mr. Lyle. Kate Anderson and myself, Catherine Anderson,
went and met with Mr. Lindsay and confirmed that he, in fact,
handled that with Mr. Ruff prior.
Mr. Barr. What you mean by that is Mr. Lindsay, I presume--
I don't want to put words in your mouth--assured you that the
matter had been handled?
Mr. Lyle. Yes, that he had had discussions with Mr. Ruff
relative to the anomaly.
Mr. Barr. Do you know anything further about those
discussions between Mr. Lindsay and Mr. Ruff?
Mr. Lyle. No, sir, I do not.
Mr. Barr. Did he relate any details of it to you?
Mr. Lyle. No.
Mr. Barr. You left satisfied that it had been taken care
of?
Mr. Lyle. Yes.
Mr. Barr. One of the problems I see here, Mr. Chairman--and
these two lines of questioning are related--you can have a
subpoena, Mr. Chairman, and as counsel knows, certainly, come
in asking comprehensively for all documents and records and
exhibits and so forth; and what we're seeing here is if you
pull different--the same information out in different formats,
you get somewhat different information. Now, it can be
explained in a way so that maybe it has the same stuff, but, of
course, as the chairman knows and as the counsel knows, there
can be very important subtle differences simply by the way
information is formatted, the way it is punctuated, the way it
is broken, the way it is highlighted and so forth.
This also goes to, I think, your concern expressed earlier,
Mr. Chairman, that if a subpoena comes in and only partial
information is returned, that can create a problem.
Whether or not that's obstruction certainly is something
that the authorities would want to look into. Even Mr. Waxman
indicated that certainly if there has been obstruction, he
would want to look into it.
These are the sort of nagging questions that I think are
very relative to this committee, to you, Mr. Chairman, probably
to the independent counsel as well and certainly would have
been relevant to us in our impeachment inquiry asking for full,
accurate, complete information. If we were getting, as now is
obvious, at best only one version of information and there are
other versions still out there, that raises some very, very
substantial questions in my mind as a former prosecutor and as
a member of this and the Judiciary Committee which I think are
shared by the chairman and the counsel.
Mr. Burton. The gentleman yields back the balance of his
time?
Mr. Barr. Yes, Mr. Chairman.
Mr. Burton. Mr. Waxman does not have any questions. Counsel
has 20 minutes on his time, and Mr. Shays said he would like
the counsel to continue questioning for a while. Counsel.
Mr. Wilson. I'm going to go into a new, slightly different
area of questioning; and let me tell you what it is before we
go there so you understand.
We discussed your memorandum earlier, the sleeping dog or
the e-mail, the sleeping dogs lie e-mail; and you explained
this pertained to information requests. Well, there are other
documents we have, and I'm going to ask both Mr. Lyle and Mr.
Heissner about them, where it seems that there were indications
about this problem--the problem being the e-mail problem--and
the information was taken out of documents--and from our
perspective--and I want you to help me work through this--it
seems that when information is taken out of a document, whether
it's a briefing material or some type of memorandum for a
superior, then that makes it difficult to move forward with a
solution to the problem.
Now, Mr. Lyle, if you would please take a look at exhibit
84 in the book in front of you. It's an e-mail from yourself to
Joseph Kouba. My understanding, Mr. Kouba is a budget person at
the Office of Administration.
Now, in this e-mail you say--it's very short, very
succinct--Joe, please correct the budget materials re OA by
removing the bullet point relating to Mail2 reconstruction. You
came in for an interview last week, and you explained to us why
you sent this e-mail,
and your explanation was you wanted the bullet point removed
because it was incorrect. I don't want to spend a lot of time
on this, but I want to ask you, instead of removing the bullet
point, why didn't you correct the bullet point? Why didn't you
make the information accurate?
[Exhibit 84 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.178
Mr. Lyle. Let me explain to you, give you a context so that
you understand what this was.
This is a series of e-mails that occurred in connection
with an internal presentation that the Budget Financial
Management Division was preparing for the assistant to the
President for Management and Administration. On a periodic
basis Financial Management Division professionals would brief
the assistant to the President for Management and
Administration with respect to the Executive Office of the
President accounts, each appropriation that exists within them,
the burn rate in terms of the funds that are available, what
the expenditures are.
With respect to the Office of Administration's
appropriation, an e-mail was sent around by Mr. Kouba, who is
one of our budget folks in the Financial Management Division,
very hard-working individual, and he had included in there a
discussion, a possible bullet point for the assistant to the
President that said--it was relative to the Armstrong
Resolution Account. That Armstrong Resolution Account is the
funding source that is used with respect to the Automated
Records Management System.
Mr. Wilson. Let me just get to my question. I don't have an
awful lot of time.
The question is that somebody wanted to communicate
something about the e-mail problem. Mr. Kouba did, and Mr.
Kouba is not here. We'll talk to him at a later date. He wanted
to communicate something. You thought what he was communicating
was wrong, but nevertheless he wanted to communicate something
about the e-mail problem. And your response--rather than
saying, why don't you correct your bullet point because it's
wrong, your response was, why don't you delete the bullet
point. So it seems like you had opted to delete instead of
disclose the information.
I want to move on to another document.
Mr. Lyle. The reason I instructed that is because it was
flat-out wrong. And there was no--in other words, I didn't want
to leave anything in--a briefing to the assistant of the
President for Management and Administration that came out of my
office or folks from my office that had incorrect information.
The best way to eliminate any confusion about it is to say it's
wrong--and correct it. Simple as that. That's why I did it.
That's how you correct this information. That's how I corrected
it. Made perfect sense to do so because it was wrong.
Mr. Wilson. I understand. I understand your concern, but
our concern is that there's a document here that talked about
the e-mail problem. You had an opportunity to communicate
something, and you chose to do what you did. I understand why
you did what you did.
Mr. Lyle. Mr. Wilson, that information was an internal
document between my office--my agency at the time. I was the
general counsel. But my agency and the assistant to the
President, Virginia Apuzzo--and it was in the context of a
briefing for that budget preparation. She was aware of the e-
Mail2 anomaly, as you know. So what we were correcting was
incorrect information because it stated a conclusion that was
flat-out incorrect.
Mr. Wilson. Is it fair to say the ultimate document had no
reference to the Mail2 problem in it at all? The ultimate
document that was prepared had no reference to the Mail2
problem at all?
Mr. Lyle. Correctly so. That it should not have any--there
should be no indication in the Armstrong Resolution Account
relative to e-Mail2, which, by the way, is a conclusion that
our appropriators have acknowledged and agree with in a
correspondence that we just received to them in connection with
our request to use funds to do an e-Mail2 reconstruction out of
the Armstrong Resolution Account.
Mr. Burton. Let me interrupt, because I'm not sure I
understand this. When the White House went to the appropriators
to ask for funding, they did not ask for any money to correct
the e-mail problem; is that correct?
Mr. Lyle. No, sir. On March 20, we requested----
Mr. Burton. March 20 of when?
Mr. Lyle. March 20, 2000.
Mr. Burton. I'm talking prior to that.
Mr. Lyle. Prior to March 20, 2000, I'm not aware of any.
Mr. Burton. We're talking about the problem occurring back
in September 1996, and it was discovered in 1998. Did anybody
ask for any money to correct the e-mail problem or to go
through and reconstruct everything and bring it up to date? Not
starting there and going forward but going back to 1996 and
getting all the information that was relevant to all these
investigations, getting to the Congress, did anybody ask for
money for that?
Mr. Lyle. There were two components to the e-mail, two
anomalies. There was the first component which you have been
talking about which was the----
Mr. Burton. I just need a yes or no answer. In 1998 or
thereabouts, did they ask for the money to reconstruct all the
e-mails instead of starting there and going forward? Did they
ask for the money to go back and correct several hundred
thousand e-mails that were missing?
Mr. Lyle. The portion of the problem that was corrected in
November 1998, did not require additional funds. That was
stopped. In other words, the Armstrong failure to capture----
Mr. Burton. So they did not ask for any money to go back
and to get those e-mails that had been missed since September
1996?
Mr. Lyle. You're talking about the reconstruction from the
back-up tapes?
Mr. Burton. Yes.
Mr. Lyle. The first request that I'm aware of was by Mr.
Lindsay in March 20, 2000, where he asked----
Mr. Burton. That answers my question. They did not ask for
money to reconstruct that prior to the year 2000?
Mr. Lyle. That's correct.
Mr. Burton. Thank you.
Mr. Wilson. Mr. Heissner, I wanted to ask you about a
different document. Again, I just don't want to come out of the
blue on this issue. I'll explain to you what my thinking is,
and hopefully you can help us--you can educate us here. Let me
explain the issue first, and then you'll have an opportunity to
review it.
From our perspective, there seems to be a simple
proposition. Either the White House had the money and the
personnel to fix the problem and it simply decided to ignore
the problem or the White House didn't have the money or didn't
have the personnel and it chose not to take steps necessary to
get help.
Now, a couple of weeks ago one of your former colleagues
Paulette Cichon was asked, if the Office of Administration
didn't have the money and it didn't have the personnel, how can
it fix the e-mail problem; and her answer was very, very
constructive. She said, we couldn't do it. Now, that's easy for
us to understand. If they didn't have the money and they didn't
have the people, they couldn't fix the problem. It seems to
us--and I'll get to this document in a moment--if you needed
help to solve the problem and if you didn't ask for help to
solve the problem, the only possible explanations are that you
didn't want to solve the problem.
Now, if you would please take a look at exhibit No. 94 in
the book in front of you. Now, here we have what appears to be
a forwarded e-mail from you to another Office of Administration
employee named Christa Moyle. It's dated February 24, 1999. So
it's fairly close to the beginning of 1999, again about 6
months after the problem was first identified.
The subject line of the e-mail is draft hearing preparation
paper. When you read this e-mail, it appears to us that someone
was trying to inform Congress of the e-mail problem. Now, in
this e-mail you have two versions of a bullet point about the
Mail2 problem. One is labeled current version; and the other is
labeled, quote, more nearly accurate version. So the initial
question here is, did you draft the more nearly accurate
version, the Mail2 bullet point in this document?
[Exhibit 94 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.179
Mr. Heissner. Yes, sir, I did.
Mr. Wilson. That was something you prepared?
Mr. Heissner. Correct.
Mr. Wilson. I'd like to go over to exhibit 134, if I can,
please. It's a multiple page document. It appears to be a draft
hearing preparation paper. It says draft at the top.
The date is February 24, 1999. So, again, early 1994, but
it's dated the same day that you drafted the more nearly
accurate version message in the e-mail we looked at a moment
ago.
What I'd really like you to do, if you would, please, is
look at the very bottom of page 4 and the top of page 5. Now,
there's a bullet point in this draft document. It's a hearing
preparation paper, and it's got an underlined heading. It says,
Mail2 reconstruction; and the interesting point from our
perspective is that it's crossed out. There's a wavy line that
goes through the entire bullet point. Now, apparently, it was
crossed out by Catherine Anderson, who is a lawyer in the
Office of Administration.
Now, I guess the first thing I want to ask you is, is this
the language that you drafted in the e-mail where you wrote
``More Nearly Accurate Version?''
[Exhibit 134 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.180
[GRAPHIC] [TIFF OMITTED] T9621.181
[GRAPHIC] [TIFF OMITTED] T9621.182
[GRAPHIC] [TIFF OMITTED] T9621.183
[GRAPHIC] [TIFF OMITTED] T9621.184
Mr. Heissner. It seems to be the contents or paraphrased,
perhaps slightly modified version of the information I provided
in the more nearly accurate version of the February 24 e-mail.
Mr. Wilson. We appreciate the fact that you provided
accurate information in a paper that was for draft hearing
purposes. What we see is something that's crossed out. Do you
know whether this section was removed because someone did not
want Congress to know about the e-mail problem?
Mr. Heissner. I don't know anything about this. This is the
first time I've seen this document, sir.
Mr. Wilson. It's fair to characterize you wrote something
that you thought was accurate, it was put in a briefing paper
document--and I'm not saying you have to have contemporaneous
knowledge of this, but you're looking at something now that's
removed, and you have no further knowledge about it than that;
is that correct?
Mr. Heissner. That's correct, sir.
Mr. Burton. Who is this draft memo to?
Mr. Zwerling. Can you identify it by a number?
Mr. Burton. The one we were just talking about.
Mr. Zwerling. The one he's never seen or the one he made?
Mr. Burton. The one that has the crossed-out part.
Mr. Heissner. Exhibit 134, I don't know. It is not clear
from this document to whom it is written.
Mr. Wilson. Our understanding, it was a memorandum prepared
in anticipation of congressional hearings. Do you have any
reason to know that that's not correct?
Mr. Heissner. That seems a very reasonable assumption, sir.
Mr. Burton. But to whom would it be addressed? Who would
this go to? It wouldn't just go in a dead letter file. Who
would it go to?
Mr. Heissner. I don't know. Again, this is the first time
I've seen this. Normally, I'm not privy to documentation----
Mr. Burton. But you prepared this document, you said.
Mr. Heissner. I prepared one paragraph, sir. Just that one
item at the very end. It includes text I prepared in an e-mail.
Mr. Wilson. Mr. Lyle, do you know whether this was a
document prepared in advance of hearing?
Mr. Lyle. Yes, it was. It's a draft document.
Mr. Wilson. Do you know whether the final version of this
document ended up with no reference whatsoever to the Mail2
reconstruction problem?
Mr. Lyle. To answer your question, Chairman Burton, this
would be used to prepare the director of the Office of
Administration to testify for the Appropriations Committee,
which at the time was Mr. Lindsay who was fully aware of this
e-Mail2 anomaly that is included in this draft. And to answer
your question, the final version did not contain reference to
the e-Mail2 reconstruction.
Mr. Burton. The crossed-out paragraph there was not in the
final version. Who prepared the final version?
Mr. Lyle. The final version was prepared jointly by me and
my staff in preparation for inclusion in a book.
Mr. Burton. Why was that paragraph left out?
Mr. Lyle. The reason the paragraph was left out is because
the information that's being included was in preparation for
the fiscal year 2000 appropriations hearing which occurred in
1999; and the issues in this paper, if you look through it,
discuss either ongoing projects or the future requests for
funding that we would be seeking from the appropriators, the
Office of Administration.
Mr. Burton. Why was that paragraph on the e-mails left out?
Mr. Lyle. Because the request for appropriations was not
going to be requesting funds for the e-Mail2 reconstruction.
Mr. Burton. Why?
Mr. Lyle. Because a decision was made that the project had
to be deferred in view of the Y2K crisis.
Mr. Burton. But Congress had submitted subpoenas for these
documents as well as the independent counsels and Justice
Department and everybody else. So you're saying action was
deferred intentionally because of the Y2K problem?
Mr. Lyle. No, sir, absolutely not. As I said earlier, the
people in the Office of Administration, myself and my staff,
were unaware of any issues in terms of the subpoena compliance
one way or another. Those communications had taken place
earlier. We were working without any indication one way or
another that there was any issue relative to the subpoena
compliance.
Mr. Burton. Mr. Heissner who put that in there, he was
aware of some subpoenas. He said that earlier in his testimony.
He put that paragraph in. Didn't you ask him why he put that
paragraph in?
Mr. Lyle. I wasn't aware that Mr. Heissner put the
paragraph in, but I can tell you that in terms of what I
believe Mr. Heissner said earlier that he wasn't aware of what
goes on in terms of the subpoena compliance, as I said before,
issues relative to subpoena compliance are handled in the White
House counsel's office. We provide information on those.
Mr. Wilson. Mr. Lyle, when we interviewed you last week, we
asked you why no one informed appropriators, congressional
appropriators before March 2000. This was your answer, and we
wrote it down verbatim. This is the quote. When you go to
appropriators, they ask a lot of questions. Let me read that
again, because that is the verbatim quote. When you go to
appropriators, they ask a lot of questions. Now, we didn't
followup. I admit we were amiss.
First of all, what's wrong with appropriators asking a lot
of questions?
Mr. Lyle. I don't know what context you are referring to.
Mr. Wilson. We're talking about a question put before you
to as to why before March 2000, nobody asked appropriators for
money.
Mr. Lyle. Can you show me the question and then my answer?
Mr. Wilson. We can go back to you. We'll can put that to
you in the form of a letter and go back at that point. But I
will ask this question. Why not--this is a question. We
legitimately want you to help us.
Mr. Lyle. And I am endeavoring to help you.
Mr. Wilson. Why did you not look upon congressional
testimony as an opportunity to tell Congress about this issue
and inform them of the problems you faced, the money and
personnel that you needed, and simply to tell Congress what the
state of play was on this matter?
We've got documents where bullet points are getting
removed. They are not going up the chain of command to people
higher. From our perspective, and this is what we're trying to
work through, it appears that you had an opportunity--and I
know Mr. Barry wanted somebody to move forward, and Mr.
Heissner appears to have done the right thing, and he's drafted
the bullet point that got crossed out. It looks like a lot of
the people were trying to do the right thing in the Office of
Administration. Good career people were trying to do the right
thing. And our simple question is, why did you not think this
is an opportunity; I can go and get help?
Mr. Lyle. I'm sorry, I don't understand your question.
Mr. Wilson. All right. Let me try it again.
You're going to go before Congress. You're going to go
before congressional appropriators. You had a problem. You had
people who wanted to fix the problem. You had Mark Lindsay that
said it was a priority of his, a first priority to fix this
problem. You had people that knew that unless you had money and
unless you had people to work on this problem, you weren't
going to move forward. So why didn't you think this is a good
opportunity as a public servant, as a lawyer, an officer of the
court, I can go to Congress. I can tell them about this
problem. I can make myself right with the law. I can get help,
and then we'll be able to fix the problem.
Mr. Lyle. You have to look at the context at the time in
terms of what was happening in the Executive Office of the
President. There were a lot of things that you said in your
preparatory statements----
Mr. Wilson. You could have given Congress the context.
Mr. Lyle. Do you want me to answer that question or the
question you asked before? Which question?
Mr. Wilson. Please continue. Please answer the first
question, and then I'll ask the second question.
Mr. Lyle. The context that the Office of Administration was
in at the time was the Y2K crisis that I discussed with you at
length during our interview. That project was the No. 1
priority. It wasn't just the No. 1 priority within the
Executive Office of the President. It was the No. 1 priority
governmentwide in terms of information technology, nationwide
and worldwide.
I don't think there's any dispute about that the Executive
Office of the President's computer system was in antiquated
condition and it needed to be taken from that state into a
modernized, Y2K-compliant system. That was the No. 1 priority
that our appropriators--and I believe this committee--Mr. Horn,
I believe, was also keenly interested in our progress on how we
were doing.
As you will recall, the goal was for governmentwide
compliance----
Mr. Burton. Why didn't you at least put it in there and at
least bring it up before the appropriators? Why not at least
tell the appropriators we've got this problem? Y2K is a
priority, but this is a problem because Congress has subpoenaed
documents, the independent counsel has, the Justice Department
has, and we can't get this without additional personnel and
money. Why didn't you just at least bring it up instead of
crossing it out?
Mr. Lyle. I understand, Mr. Burton. Again, the Office of
Administration people and myself were operating without any
knowledge of any concerns or issues relative to any subpoenas
that this committee or any other----
Mr. Burton. You knew about the e-mail problem.
Mr. Lyle. We knew that we had the back-up tapes, that they
were secure.
Mr. Burton. Why didn't you at least ask for the money and
the personnel to solve that problem even though you had the Y2K
problem?
Mr. Lyle. Again, as I explained to Mr. Kolbe, our
appropriators--and as I said earlier, the Y2K issue was the top
priority----
Mr. Burton. I understand that. But you could have also put
this in there. There wasn't one or the other. Why was it taken
out?
Mr. Lyle. The project e-Mail2 reconstruction project had to
be deferred, like a variety of other non-Y2K projects, because
we had limited resources available to solve the No. 1 crisis
facing----
Mr. Burton. Doesn't Congress have a role to play in the
decisionmaking process of what priorities are? You were
supposed to go before Congress and tell them what the problems
were. Y2K was a problem. The e-mail was a problem, but you
didn't even mention that. Why?
Mr. Lyle. The Congress is certainly on a variety of issues
a place where we go, and we have a very good relationship that
we forged with our appropriators. The request was submitted on
March 20, 2000.
Mr. Burton. Why didn't you ask? Why didn't you have that in
there?
Mr. Lyle. Because of the Y2K problem.
Mr. Wilson. Mr. Heissner, if I may go back to you for just
a moment. If you go to exhibit 94 again, it's the exhibit we
were looking at a moment ago, the e-mail from yourself to
Christa Moyle. Down the bottom of the page, the very bottom, it
says, current status. And it says, and I quote, awaiting
funding and management decision to proceed. Is it fair to say--
is it correct to say that the management decision and the
funding decision was finally made in February and March 2000?
You didn't have any decision in 1998 or 1999? Is that fair?
Mr. Heissner. That's correct, sir.
Mr. Burton. Your time has expired. We'll try to get back to
those questions. Mr. Waxman's time now.
Mr. Waxman. Mr. Chairman, we'll take our half-hour of
counsel time on this side. I want to yield to Mr. Schiliro.
Mr. Schiliro. If I were watching this on TV, Mr. Lyle and
Mr. Heissner, I'd be confused because there seem to be
conversations about the same problem but two separate
applications. We have one e-mail problem where, in the ARMS
Lotus interface, a number of e-mails were not captured by this
system. As I understood Mr. Lindsay's testimony in a previous
hearing, it was a priority for him to fix that prospectively.
That was not your responsibility, was it, Mr. Heissner, to do
the actual repair of the interface problem?
Mr. Heissner. That's correct, sir.
Mr. Schiliro. That was a responsibility of the Northrop
Grumman employees. So counsel was asking you questions before
about whether Mr. Lindsay talked with you about that because
that was a priority of Mr. Lindsay's to fix it, but it would
not have made any sense for Mr. Lindsay to talk with you about
fixing that problem prospectively because that was not your
responsibility.
Mr. Heissner. That's correct.
Mr. Schiliro. When we look at the missing e-mails, we're
really looking at two different issues. Mr. Lyle referred to
this. There's a subpoena issue where e-mails were not produced
in response to subpoenas, and then there's the issue you focus
on which is the archival responsibility. And is that why you
wrote what you referred to before as Exhibit 92 and counsel
referred to as Exhibit 94?
Mr. Heissner. I believe the intent of the nearly more
accurate version was describe the status of the Mail2
reconstruction, the reconstruction of mail non-records managed
e-mail that was still residing on tapes but had not been
recovered and put into narrative.
Mr. Schiliro. But your focus was not on that issue in
response to subpoenas. Your focus was because there was an
archival responsibility to reconstruct these tapes at some
point?
Mr. Heissner. That's correct.
Mr. Schiliro. So when the chairman had and others had been
asking you questions about subpoenas, that wasn't in your mind
at all at that point. You just had a responsibility to make
sure the archives were correct for the future?
Mr. Heissner. That's correct. The responsibilities had to
do with the technical issues in, No. 1, assuring that all the
tapes were maintained; No. 2, getting a system designed that
would enable the recovery of these records; and, No. 3, to
perform the recovery eventually.
Mr. Schiliro. It would not have even have been within your
responsibility to be concerned with subpoenas when it came to
this issue?
Mr. Heissner. My responsibility with respect to subpoenas
was to respond to them as I received them.
Mr. Schiliro. So again in the context of reconstructing the
missing e-mails, it was not presented to you in the context of
responding to previous subpoenas?
Mr. Heissner. That's absolutely correct, sir.
Mr. Schiliro. When you wrote that e-mail and then it got
picked up in a briefing memo--but your responsibility in
writing the e-mail was not to inform Congress; is that correct?
You weren't told you're writing this because you have to inform
Congress of the problem.
Mr. Heissner. No. The intention was to clearly state the
problem as it existed.
The document that you're seeing, exhibit 94, is part of
exhibit 92 and just shows the context in which this response
took place. It seems that Ms. Moyle asked me to explain what
Tony was talking about, and so this is the explanation I
believe. On the E 3878, which is the second page of exhibit 92,
Mr. Barry described the situation and gave the information, and
I was asked to explain that.
Mr. Schiliro. Again, I don't want to be redundant, but the
context of this was not for you to inform Congress or for
anyone there to inform Congress of a specific problem. It was
for you to try to estimate how much it would cost to do this
reconstruction for archival purposes?
Mr. Heissner. That's correct.
Mr. Schiliro. Mr. Lyle, is that your understanding as well?
There are really two buckets of issues here, subpoenas and
archival issues, and that when you came on board, your
understanding--and in fact it's the understanding I think that
Mr. Lindsay had--is that missing e-mails had no relevance to
subpoena problems because the White House counsel's office--
Beth Nolan had testified to this at the last hearing--had run a
test in June 1998. Pursuant to that test, they concluded the
missing material had already been provided to the independent
counsel, and so as far as they were concerned there wasn't
missing information.
Your operative thinking then became not one of a subpoena
problem in terms of compliance. You believed the problem was
fixed prospectively, and so in 1999, when you looked at the
appropriations process, the question you faced was the need to
provide--do we need to ask Congress for money to fix the
archival problem, not anything in relation to subpoenas and
information we may not have produced.
Mr. Lyle. That's right. We were asking for funds in our
budget submission for all kinds of--as I said, the Y2K issues.
That other aspect in terms of the e-Mail2 project was one
that had to be deferred and it was only relative to, OK, we've
got the back-up tapes. They are available. We've got them in
our data center. They are secure for the anomaly.
The question then is, for purposes of our archiving for
Federal records, for Presidential records, all of those
purposes, that was the focus of the project. There were no
issues in terms of subpoena compliance whatsoever that we were
operating under, and it was in that vein that we viewed the
project at that time, which is why it was deferred with a
variety of the other non-Y2K projects and we focused all of our
energy and efforts on the Y2K problem.
We had the back-up tapes secure in the data center, as I
said, for the e-Mail2 anomaly and for the letter D anomaly; and
now once Y2K had passed we were in a position to go to Congress
and provide them with information about the cost associated
with the reconstruction effort, possible contractors to do it,
and how we were planning on proceeding which took our
significant involvement from our information technology experts
within the Office of Administration who had previously been
dedicated to the Y2K problem. Now they were free to focus on
the reconstruction project, which is exactly what we have been
doing and are currently doing.
Mr. Schiliro. That would explain why that paragraph was
crossed out of a briefing memo that you were asked about
before?
Mr. Lyle. Exactly. Funding was not being requested at that
time for the e-Mail2 reconstruction effort. We've asked for it
in March of this year.
Mr. Schiliro. Without any of that explanation that you just
provided or Mr. Heissner provided, if someone were just looking
at the paper evidence we have, one could speculate, well, maybe
something was happening here and people did not want Congress
to know because there's material crossed out. But neither of
you were aware of any sentiment of doing that?
Mr. Heissner, you were never in a position where you felt
you had an affirmative duty to inform Congress and someone came
to you and said you could not do that and you had to keep this
quiet?
Mr. Heissner. That's absolutely correct, sir.
Mr. Schiliro. You never heard any discussions in the White
House, anybody in the halls talking about any effort to keep
this quiet or keep it away from Congress?
Mr. Lyle. No.
Mr. Waxman. I'm pleased we got that clarification, because
the chairman seemed very frustrated with the knowledge that we
now have that some of those e-mails that had not been captured
might not have been turned over to investigators, this
committee and the independent counsel and other investigators.
So he wanted to know why you didn't ask for this capturing of
those past e-mails as a priority for funding. But your
explanation is you didn't even know anything about past e-mails
not having been--not made available to all the investigators.
Mr. Lyle. That's right. Those matters simply were not
handled in the Office of Administration.
Mr. Waxman. Now, Mr. Lyle, I want to ask you some questions
about these several versions of talking points, some of which
are dated February 24, 1999, which were produced to our
committee. These documents are numbered E 4382-4406. Could you
explain to us the purpose of these talking points, who were
they for and why were they prepared?
Mr. Lyle. Yes, sir. These are various drafts which you have
marked in the book exhibit 132 it looks like through 134. These
are draft documents that were prepared by the Office of the
General Counsel and the Office of Administration in preparation
for the director of the Office of Administration's testimony
before our appropriators. It is various iterations, as you can
see. It's for inclusion in materials that the director will
review in preparation for his testimony.
In this particular case, the director of the Office of
Administration at this time was Mark Lindsay; and these drafts
were simply put together by me and my staff to prepare him for
that testimony. These are internal documents. They are not
documents that are intended to be conveyed in their form to
Congress. They are to impart information to the director as
best we could anticipate in terms of what he would need to
testify. So these are internal documents, and what you see are
the various considerations that went through until a final
version was submitted for Mr. Lindsay.
[Exhibits 132 and 133 follow:]
[GRAPHIC] [TIFF OMITTED] T9621.185
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[GRAPHIC] [TIFF OMITTED] T9621.194
Mr. Waxman. These are talking points not for the Congress,
not to be put into the public record at a hearing by the
Congress but simply to inform Mr. Lindsay of the different
issues when he goes before the appropriations committee and
asks them to continue to fund for the next fiscal year the
activities of the Office of Administration?
Mr. Lyle. That's quite right. The focus, as you can see in
reading these, is the appropriations before him at the time,
the fiscal year 2000.
Mr. Waxman. There are several different drafts of the
talking points. Were you involved in drafting the talking
points?
Mr. Lyle. I have no memory of reviewing these at the time--
around this time that they were being drafted in the March--I'm
sorry, in the February 1999, timeframe, but I have seen them
since then in connection with producing documents here for this
committee.
Mr. Waxman. Do you have any personal knowledge of how the
talking points were prepared?
Mr. Lyle. No, I do not. I should say I know they were
prepared by my staff, that they gathered information from a
group of--a variety of materials that were provided by the
Information Systems and Technology branch within the Office of
Administration and that the information--the concepts and the
bullet points that were provided focused, as you can see, on
the capital improvement--capital investment program or plan and
then also on the Y2K implementation which was the main thrust
of where we were at that particular time.
Mr. Waxman. Have you had any subsequent conversations with
Office of Administration or OA personnel about the drafting of
these talking points?
Mr. Lyle. Subsequent to?
Mr. Waxman. The time they were given to Mr. Lindsay.
Mr. Lyle. The final draft would be the one that would be
given to Mr. Lindsay. I was shown these in connection with a
document production that was being done for this committee, and
I had conversations with my staff in the context of those at
that time.
Mr. Waxman. One draft numbered E 4392 through E 4396 is
labeled Kate's comments. Who is Kate?
Mr. Lyle. That would be Catherine Anderson. We call her
Kate.
Mr. Waxman. Who is she?
Mr. Lyle. She is an attorney in the Office of General
Counsel in the Office of Administration.
Mr. Waxman. This is a draft of the talking points that Ms.
Anderson reviewed with her notations; is that correct?
Mr. Lyle. Yes.
Mr. Waxman. There's a bullet point referring to the Mail2
reconstruction project in this draft that has been scribbled
out by hand, and that same bullet point does not appear to be
in what seems to be the final version of the document. Do you
know why Ms. Anderson scribbled out the bullet point?
Mr. Lyle. Based on my discussions with her, these--that
particular issue was removed because the thrust of these--of
this information and the thrust of the--the purpose for which
it was being prepared was an appropriations hearing for fiscal
year 2000, and the projects and the issues and the discussions
in here were the capital improvement--I'm sorry, the capital
investment plan for fiscal year 2000 and also the Y2K
implementation issue which was an ongoing--it was--we needed to
move into the year 2000. There was discussion of those current
issues relative to the budget submission.
The e-Mail2 reconstruction project was not relevant because
it was not--the funds were not being sought for the e-Mail2
reconstruction project in this appropriation, the subject of
this material.
Also, bear in mind, as I said earlier, this is being
prepared for Mr. Lindsay, who is the director of the Office of
Administration at the time; and he, as you all know, knew a
great deal about the Mail2 reconstruction project.
Mr. Waxman. Then let's pin it down even further. Did Ms.
Anderson remove the Mail2 bullet as an attempt to prevent the
Congress from finding out about the Mail2 problem?
Mr. Lyle. Absolutely not.
Mr. Waxman. In fact, returning to the point you made
earlier, did you or Ms. Anderson view the Mail2 issue as a
problem affecting the White House's ability to comply with
document requests of subpoenas?
Mr. Lyle. No, sir.
Mr. Waxman. To your knowledge, the decision about whether
or not to include the Mail2 bullet had nothing whatsoever to do
with the issue of notifying Congress of problems of subpoena
compliance?
Mr. Lyle. No, it had nothing to do with that.
Mr. Waxman. To sum up, Ms. Anderson did not think Mail2
reconstruction was an issue for this particular appropriations
hearing; and she further thought that, if the issue did come
up, Mr. Lindsay was well equipped to respond as he had been the
one who handled the Mail2 problem originally; is that right,
Mr. Lyle?
Mr. Lyle. That's right. Ms. Anderson is a very capable,
hard-working lawyer, and that is exactly the reason that she
was proceeding.
Mr. Waxman. When you come in and ask for money, you could
ask for everything you might possibly want funded, but you
ultimately have to make some decisions on priorities. And this
was not a priority at that time, to get funds to go back and
examine the back-up tapes, as you saw it, for archival purposes
and for no other reason.
Mr. Lyle. That's right.
Mr. Waxman. It's really not fair for people to come in and
say you should have known the subpoenas were not being complied
with because you had no knowledge of it.
Mr. Lyle. That's exactly correct. We had no knowledge of
the issues of subpoena, so we were making prioritizations based
on the needs at the time, and the paramount concern was the Y2K
issue. The other information technology types of projects that
were non-Y2K needed to be deferred.
Mr. Waxman. Could you imagine what this committee would do
if your computers failed the Y2K because you were trying to get
the archives ready for the future historians?
Mr. Lyle. If our computer system had failed, I think this
committee and I dare say a variety of other committees would
have been very displeased with our--including my boss and my
boss's boss all the way up in the White House, there would have
been great displeasure; and, thankfully, we didn't have to face
that.
Mr. Waxman. I'm pleased that you've clarified this issue.
Because it seemed like, with some of the other questions, were
trying to confuse it; and so it's clear now what we're talking
about, different issues. When they are all mixed together, you
can try to paint a picture to fit in with preconceived notions,
but if you look at the facts as they were, I now understand
your position.
Mr. Schiliro.
Mr. Schiliro. Mr. Heissner, this is my last question. I
just want to make sure we're completely clear on this point.
Your only involvement in the e-mail reconstruction is as it
pertains to the archival responsibilities?
Mr. Heissner. Yes, sir, that's correct.
Mr. Schiliro. It's not because you were asked to inform
Congress and it's not because you were asked to comply with
subpoenas and there was some information that wasn't provided?
Mr. Heissner. That's correct, sir.
Mr. Schiliro. Thank you, Mr. Heissner.
Mr. Waxman. I'm going to--even though we have more time
allotted to us in this period of questioning, I'm going to
yield it back. I think Mr. Shays is probably waiting for his
turn; and if there are other witnesses, we'll get our
opportunity to go through it further. But I very much
appreciate the testimony both of you have given. It has been a
useful clarification.
Mr. Barr [presiding]. The ranking member yields back the
balance of his time. The chair recognizes the gentleman from
Connecticut for 5 minutes.
Mr. Shays. Thank you.
Mr. Lyle, Mr. Heissner, concealing subpoenaed or requested
information is a crime. And the bottom line is, in my judgment,
the White House obstructed justice, and we're just trying to
see who did it. So that's the challenge.
I want to make sure that I understand your point, Mr.
Heissner, that you clearly stated the problem as it existed.
What does that mean? In response to Mr. Waxman, you clearly
stated the problem as it existed. What was the problem as it
existed and who did you state it to?
Mr. Heissner. In the sense of which the question was asked,
I believe it refers to the Mail2 server failure.
Mr. Shays. Let's start with that. How did you clearly state
the problem?
Mr. Heissner. How do I clearly state the problem?
Mr. Shays. Yes. You told somebody.
Mr. Heissner. There was documentation of which I described
the problem.
Mr. Shays. And that there were--in the Mail2 problem, there
were 246,000 potential e-mails that were not discovered in the
site. That's exhibit 1. That's what we learned from Northrop,
and that's what you learned from Northrop on June 18.
[Exhibit 1 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.195
Mr. Heissner. No, I have never seen this before. I'm sorry.
But what is the question, sir?
Mr. Shays. You've never seen the document from Northrop
that talked about the different--all the different people that
potentially had e-mails that might be relevant to the
impeachment hearings, relevant to this committee, relevant to
Mr. Starr? You----
Mr. Zwerling. We may have a problem, Congressman, because
document----
Mr. Shays. Exhibit 162. It's exhibit 1 on mine. I'm sorry--
exhibit 63. I'm going to need another 5 minutes when we're done
here if we're spending all the time looking here.
Why is this such a mystery to you?
[Exhibit 63 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.196
[GRAPHIC] [TIFF OMITTED] T9621.197
[GRAPHIC] [TIFF OMITTED] T9621.198
[GRAPHIC] [TIFF OMITTED] T9621.199
[GRAPHIC] [TIFF OMITTED] T9621.200
[GRAPHIC] [TIFF OMITTED] T9621.201
[GRAPHIC] [TIFF OMITTED] T9621.202
[GRAPHIC] [TIFF OMITTED] T9621.203
Mr. Zwerling. We were not provided any documents prior to
the hearing even though we were requested----
Mr. Shays. These are White House documents.
Mr. Zwerling. But this witness has not seen these documents
in preparation for the hearing is what I'm telling you. That's
why he needs to read it now.
Mr. Barr. The answers to the question now would come from
the witness. We would appreciate it, please. That's in keeping
with standard procedure.
Mr. Heissner. As I'm looking at this document, it looks
like it's a record of processing of updates.
Mr. Shays. Isn't this a document that describes the
potential e-mails that were not captured, potential
communications that weren't captured?
Mr. Heissner. From the document--as I see it now, I don't
see anything that indicates that these were individuals whose
e-mail wasn't captured. I see----
Mr. Shays. This was done on June 18th. Wasn't this part of
the test?
Mr. Heissner. I was not familiar with the test, and I
didn't participate in this. My involvement began in late 1998,
sir.
Mr. Shays. After this was done. And why is that? Why did
your involvement happen then?
Mr. Heissner. Well----
Mr. Shays. In other words, how can you tell me that you
forwarded on the extent of the problem, you clearly stated--
clearly state the problem as it existed? It sounds to me like
you didn't know how the problem had existed. I mean, is that
your testimony?
Mr. Heissner. I had been asked to provide a summary of the
events to the then director, to get her updated. I went and
inquired from some of my colleagues----
Mr. Shays. Can you put the mic a little closer to you?
Mr. Heissner. I then inquired from Northrop Grumman staff
and other technical people to obtain a description of the
problem as it was understood at the time and then provided that
information in a memorandum to Mrs. Cleal.
Mr. Shays. And is it your testimony that you weren't aware
that there were hundreds of thousands of potential e-mails that
had not been captured?
Mr. Heissner. My understanding was that there were somewhat
over 400 accounts whose information relating to the server--the
mail server that would contain that mail had not been encoded
properly. It was an upper lower case problem. That's what I
understood. How many e-mails there were I was not aware of and
I didn't know. I had no knowledge of that.
Mr. Shays. You had no knowledge. So really what you're
telling us is all the information you provided was almost
irrelevant because Northrop had known and the White House had
known, others in the White House had known since June 18th that
there were thousands of e-mails that hadn't been captured.
Mr. Heissner. There are two numbers we are looking at.
There's a number of accounts affected and a number of messages.
The number of messages was not known. The number was accounts
was an estimate given to me by Northrop Grumman staff.
Mr. Shays. OK. Now, under Carole Lieber at the top of the
first page, the handwritten note talks about the number
rejected by ARMS.
Mr. Barr. If I might interrupt, the gentleman's time has
expired. We'll go to the other side and then come back to the
gentleman from Connecticut.
Mr. Shays. Fine.
Mr. Barr. The gentleman is recognized for 5 minutes.
Mr. Kanjorski. Let me straighten out again. Your job was to
find out what was wrong and to try and correct it for archival
purposes, is that correct?
Mr. Heissner. That's correct. My job was to find out what
was not working and to find out what could be done to make the
corrections.
Mr. Kanjorski. And so for purposes of subpoenas, whether
they be by special counsel or any committee of Congress, that
was of no significance to you; and, therefore, the numbers of
e-mails lost was of no significance to you. It was to find and
identify what the problem was and how it could be
reconstructed?
Mr. Heissner. That's correct, sir. The focus was on making
sure that the back-up tapes were being maintained, they were
not being recycled and that the data could be reconstructed.
Mr. Kanjorski. Probably the general public watching this
hearing are not as familiar with as complicated a computer
system as exists at the White House. But do you have over the
years an experience that it's a perfect system that works all
the time or is it not unusual that a computer system crashes?
Mr. Heissner. Well, I guess that's a truism that to fail is
human but to really foul things up takes a computer, sir.
Mr. Kanjorski. All right. I would like the record to
reflect, Mr. Chairman, that in my congressional office here in
the House in the last 7 weeks my computer system has crashed
about seven times; and I would be hard pressed to identify what
materials have been lost because we're reconstructing what was
on that. That is not unusual, is it? The computer contractors
for the House of Representatives tells me that happens all the
time. Maybe my friends on the other side can tell me their
computers are absolutely perfect and have never crashed and
therefore they have never lost any material, but then I would
tend to think there probably was a conspiracy in the House at
least to have this happen.
This was just an occurrence of the weakness of our reliance
on a computer to receive and assemble material, hold material,
etc., is that correct?
Mr. Heissner. That's correct sir.
Mr. Kanjorski. And your job was not to assemble information
or evidence for anyone. It was merely for archival purposes to
get this problem straightened out as best you can and to do
that in a prioritized basis, 2000 issue being the most
important, is that correct?
Mr. Heissner. That's correct, sir.
Mr. Kanjorski. Thank you, Mr. Chairman.
Mr. Barr. Mr. Heissner, Mr. Lyle, you're both aware of the
fact, I presume, that the White House computer system is not
just any computer system. Is that correct?
Mr. Heissner. Correct.
Mr. Barr. There are special laws that pertain to the White
House computer system as the computer system that is officially
designed to and required by law to maintain communications,
data, records and so forth of the executive branch; therefore,
very special laws apply to the retention of that information
and to ensure its integrity that might not apply to other
computer systems such as the gentleman alluded to. Is that
correct?
Mr. Heissner. That's correct sir.
Mr. Barr. That's your understanding, too, I presume, Mr.
Lyle?
Mr. Lyle. There are rules, Federal Records Act,
Presidential Records Act, Armstrong, those types of rules apply
to data on--at least on the Executive Office of the President
systems.
Mr. Barr. If somebody tried to imply that what we're
looking at here is irrelevant simply because some other
computer systems somewhere, sometime break down or don't
maintain records properly and therefore that's an excuse for
what we've seen happen here. That would certainly not be an
accurate or legal interpretation or implication, would it?
Mr. Lyle. Are you referring to Mr.--Congressman Kanjorski's
statements?
Mr. Barr. Certainly not.
Mr. Lyle. I don't know that--what other--whatever happens
to other systems. I focus on the Executive Office of the
President.
Mr. Barr. You understand that there are very special laws
and regulations that apply to that and make it very different
from other systems.
Mr. Lyle. The rule----
Mr. Barr. There are legal obligations that relate to the
White House computer system, records retention system, that
don't apply to any other systems, isn't that correct?
Mr. Lyle. I know that we, the Executive Office of the
President, are subject to the Federal Records Act, the
Presidential Records Act and related cases, including the
Armstrong case. What goes on for other agencies or other
branches of government I'm not in a position to comment on,
sir.
Mr. Barr. Nor is it relevant, is it?
Mr. Lyle. I have no idea, because I have no idea what the
rules are.
Mr. Barr. Which would mean it would not be relevant for
these proceedings here today.
Mr. Lyle. I have no way to say one way or another. I have
no basis to state.
Mr. Barr. Well, I suspect you do, because you just cited to
me special laws that relate to the White House records system.
Mr. Lyle. I understand that they apply to our systems. The
applicability of those rules and what other cases are
applicable to other systems I have no idea.
Mr. Barr. Which makes them irrelevant for our process here
today. All I'm saying is they really have no relevance. If
somebody tries to say that inquiring--inquiries by the Congress
into lapses into the records management system and retention
system at the White House are inconsequential because these
sorts of things might happen to other systems really is not
relevant because of the special laws that apply and the
requirements apply to the--I'm not asking a question. I'm
making a statement. So you don't have to worry about it for
purposes of our inquiry here today. I think you understand
that, and I think Mr. Heissner understands that, too.
Mr. Kanjorski. Would the gentleman yield?
Mr. Barr. I'll be happy to yield.
Mr. Kanjorski. If I may, I happened to have the occasion to
be in the White House the third day after the inauguration of
President Clinton, and I recall something that was astounding
to me, and that is that every computer that I saw in every
office of the White House was gutted under court order. It had
a sticker on it, and all the insides and all the materials were
taken. And had back-up systems or computers existed in the
White House the third day that this administration took
office--I would ask the question, how could you possibly
reconstruct what happened archivally for those 3 or 4 days or 2
weeks before an entirely new system was implemented in the
White House?
Mr. Heissner. I think we are dealing with two kinds of
systems. The desk top computers that individuals use use two
kinds of storage, use storage that resides on that machine's
hard drive, and they also use network storage. The e-mail
systems are more centralized systems. And so anyone that can--
that has an account can access e-mail.
And I think at that time it was not--it wasn't Lotus Notes.
It was another system. All In One I believe it was called.
Anybody that could connect with All In One from any terminal
had an account, could send e-mail. However, any records that
they would have created during those first 3 days were then
removed because the hard drives were removed from their system,
could not be reconstructed, no.
Mr. Kanjorski. So, in fact, to the laws that Mr. Barr
refers to about this tremendous obligation that the executive
branch has to keep records, we know for a fact--and I think you
are aware of the fact--that the computer materials were
extracted from the White House at the end of the Bush
administration and didn't exist for several weeks. Then all
those archival records are basically lost, is that correct?
Mr. Heissner. That's very likely true, sir.
Mr. Barr. If you all feel comfortable operating on that
basis, you all feel free to. I think you'll find real problems
if you rely on that sort of legal reasoning.
The gentleman from Connecticut is recognized for 5 minutes.
Mr. Shays. Mr. Heissner, I made some assumptions that,
given this was your area, you would have been aware of this
document. And I really apologize, but that itself is news to me
and news to the committee. This is a document--this is exhibit
62 which you have in front of you. This is the document that
was supplied by Northrop and prepared by Bob Haas. Do you know
Bob Haas?
Mr. Heissner. Yes, I do, sir.
Mr. Shays. It's your testimony you have never seen this
document before.
Mr. Heissner. That's correct, sir.
Mr. Shays. OK. Wouldn't it have made sense for you to see
this document?
Let me just clarify one point, because I think it's
important for you to know that--look under the first person,
Carole Lieber. And it says in writing 5. These are rejected e-
mails. It gives the number--each one of those numbers and the
numbers of rejected e-mails--209, 441, 647. I mean, I accept
the fact under oath you haven't seen this document. I think
it's astounding. We added them all up. There are over 246,000.
Mr. Heissner. I've sent--I've never seen the document
before. This happened before I became involved in this process.
Mr. Shays. But the point is, you then wanted to recapture
and provide some meaningful information to somebody, and it's
almost like you were set up. Like you were providing
information to someone else and you weren't being provided all
the information, which I think is curious. And again with my
suspicious mind, given all that's transpired in the past, I
think it was purposeful, but we'll probably never be able to
prove it. 246,000 e-mails that weren't captured just under the
Mail2 problem, not to mention the letter D problem and the Vice
President problem. The Vice President used a different system,
so we don't have his.
So you go with 246,000, and then you say those are the all
incoming e-mails not in ARMS, and then we subtract the e-mails
found in individual PCs, then we subtract the e-mails found
attached to sent e-mails with history, then we subtract the e-
mails found in printed files, then we subtract the e-mails
retrieved from back-up tapes. And then what you do is you take
the--you subtract--all these undisclosed e-mails, these
246,000, you then subtract the not relevant and then you get
the subpoenaed, not produced. And right now we have potentially
a lot of subpoenaed, not produced.
Now, Mr. Lyle, because you've wanted us to believe that
somehow the fact that you have the Y2K problem that they are
mutually exclusive and that this problem can't be dealt with,
that you can't hire someone else to deal with it, that you
can't ask Congress to provide more information, that you can't
say to Congress, you know, we have a Y2K problem but, by the
way, we can't find 246,000 e-mails and let Congress know about
it.
And what really amazes me is that, even if you made a
decision on your own and others, maybe not you, not to abide by
the law to hand over all subpoenaed or requested information--
let me make this point, and I'll let you respond--you and
others chose not to, at least publicly, explain that there were
240,000 e-mails that we hadn't yet found. And I suspect and in
my suspicious mind that it might have something to do with
impeachment.
And, by the way, I voted against impeaching the President.
But I suspect it might have been because of that and because
you simply didn't want the story to come out. What else am I to
expect? Because nothing prevents the White House from
explaining to all the relevant jurisdictions that we had this
problem.
Mr. Lyle. Mr. Shays, as I've said previously, I'm aware of
no effort by anyone not to be responsive to your request for
information. I certainly was not, and I'm aware of no one who
was. The information exchange between this committee and the
White House counsel's office is something I simply do not know.
I have no knowledge of whatsoever. I cannot--I cannot tell you.
Mr. Shays. So you didn't know there were any e-mails
missing?
Mr. Lyle. I did not know one way or another what
information you had sought.
Mr. Shays. That's not the issue. The issue is--let's just
go through the way your mind thinks. You didn't know there were
any e-mails missing from the ARMS.
Mr. Lyle. I'm not saying----
Mr. Shays. No, no. Just tell me yes or no. Did you know?
Mr. Lyle. I am not saying that I was not aware that e-mails
were not captured on the Automated Records Management System. I
want to be clear on that. I am not saying that. What I am
saying is that the information about those anomalies was not
information that I was charged with or anyone on my staff was
charged with providing to the committee. Those matters were
just the--all the Office of Administration was was a conduit of
information to the appropriate people.
Mr. Shays. Should I be surprised that implicitly you're
telling me you didn't know we were subpoenaing information--we,
the Judiciary Committee, the Government Reform Committee, Mr.
Starr's investigation? You weren't aware that any--there
weren't subpoenas out there to look at e-mails?
Mr. Lyle. Remember, I joined the Office of the President in
November 1998.
Mr. Shays. November 1998.
Mr. Lyle. I have never seen any of the subpoenas that----
Mr. Shays. Where did you live before you--you are--weren't
aware--were you aware there was an impeachment?
Mr. Lyle. I'm not saying I wasn't aware that there was an
impeachment. I'm saying that I wasn't aware of the subpoenas or
the information in terms of what was being sought and what was
being provided. It simply was not a function that was within
the Office of the Administration.
Mr. Shays. I understand you're saying it's not your line of
responsibility. I just want to understand you. I want to
understand the mentality of the people who worked in the White
House. I want to understand why we didn't learn about this
problem until 2 years after, basically. And it's just helpful
to know because, ultimately, somebody knows. It's like--it's--
really, it's the same kind of problem I had when I just want to
know who hired Craig Livingstone. Craig Livingstone didn't know
who hired him, and nobody else knew. He just happened to work
at the White House. I think almost any American knew there were
hearings on the President and knew that information was being
subpoenaed.
Mr. Lyle. I didn't say that I didn't know there were
hearings, and I didn't say I didn't know information was being
sought. And that was being provided. What I'm saying is I don't
know what that was. I don't know--I never saw the subpoenas.
Mr. Shays. Were you ever--I'm sorry.
Mr. Lyle. I had no idea as far as the communications
between this committee and the White House counsel's office. I
wasn't in the White House counsel's office, never have been. I
was in the Office of Administration, which is a different--it's
actually housed in a completely different building.
Mr. Shays. Were you aware of the problem? You were aware
that there was a problem that there were these missing e-mails.
Mr. Lyle. As I said earlier, I learned of the Mail2
anomaly.
Mr. Shays. What did it matter that there were missing e-
mails? What did your mind say? So there are missing e-mails.
You thought, well, big deal, there's missing e-mails. Nobody
wanted any of them? What was in your mind?
Mr. Lyle. In April 1999, when I learned about the e-Mail2
anomalies, I was learning about it in connection with the
letter D anomaly which I've discussed. And in the context of
those discussions, we--a number of things had to happen. Look,
OK, what do we do about the anomaly? What do we do? The e-Mail2
was a guide. We need to do a couple of things. We needed to do
a couple of things. We need to make sure we've got the data on
the back-up tapes, which we did assure ourselves of. So that
information was put, and it was secured, it is tucked away now
under lock and key on the back-up tapes. It's all there. So the
Federal Records Act, the Presidential Records Act, all those--
the laws that Mr. Barr was asking me about, you've got the
back-up tapes so that you can have them for archival purposes.
The other thing that needed to be done is, OK, we need to
advise White House counsel's office.
Mr. Shays. Let me just say----
Mr. Lyle. What we needed to do was advise White House
counsel's office of the issue. Mr. Lindsay had previously
handled the e-Mail2 anomaly. He had communications with the
White House counsel's office. So those two components were the
things that were going on. So we had elevated it----
Mr. Burton [presiding]. Mr. Shays, let me interrupt
briefly. I yield to Mr. Kanjorski. Then I'll give you my time.
Mr. Shays. I'm happy. I'm going to very patient, but I will
take a little more time.
Mr. Lyle. I'm happy to answer your questions.
Mr. Burton. Mr. Kanjorski, you have questions?
Mr. Kanjorski. If I may, on this document maybe I could ask
counsel for the committee to explain, is the number of e-mails
missing on the extreme left hand column of the page? Is that
the number or is it the number under the name?
Mr. Burton. It's the number under the name. The counsel
would be happy to explain if you choose.
Mr. Kanjorski. What's the number on the left hand corner?
Mr. Burton. Let me put the counsel----
Mr. Wilson. Our understanding--the test was conducted by
Mr. Haas, and he determined two things. First of all, all the
individuals who were then employed who were served by the Mail2
server--so these are all the individuals whose accounts were
affected by this computer problem, by the e-mail problem. So he
printed out a master list of all of the individuals who were
affected by the problem.
And then he determined two types of information. One, the
number of e-mails that were then on their system. So on that
particular day, June 18, 1998, for example, Carole Lieber,
there were 158 e-mails on her system that, you know, many could
have been erased the previous month or week, but on that
particular day there were 158. Of those 158, 5 e-mails had not
been captured by the ARMS system.
So the first column represents the total number of e-mails
that were on the person's system at that particular time. The
second column indicates the number of e-mails that were not
captured by the ARMS system. The total number of that second
column is slightly over 246,000.
Mr. Kanjorski. If you would go through the entire document
and total it up, the second column, 246,000.
Mr. Wilson. Yes, sir.
Mr. Kanjorski. OK. Now that you're looking at that document
down there, it strikes me I've just gone through this in a
cursory manner, but I see some of the most important people in
the White House--the chief of staff and the President's
assistants--they get very few e-mails, and very few were lost.
Do you notice that? If you go to Erskine Bowles, page 00309. Is
that correct? Yes. He--that day only--he had 1,108 e-mails and
161 were lost, about 10 percent or 15 percent.
Mr. Kanjorski. Counsel has just explained to me that all of
these are retrievable, is that correct? Erskine Bowles, 161
were lost. He had 1,108 on his computer that day.
Mr. Heissner. Yes, the purpose of the reconstruction design
of the system design is to design a system that allows the
retrieval of these managed records subject to the ability to
read the tapes on which the back-ups were created and the
presence of those tapes.
Mr. Kanjorski. And you have the tapes.
Mr. Heissner. We maintained--when the problem was
discovered, the directions were given to Northrop Grumman to
retain all the tapes. This is sort of the three blind men and
the elephant kind of a problem, because as you ask different
people you get different answers. It appears, but nobody can
tell for certain, there was a short time period somewhere
between 1996 and 1998 where these back-up tapes were, after
being recycled, which means after the tape had been created and
had been maintained for maybe 4 weeks or 6 weeks or whatever
the retention period was, that same type was used again.
That practice was stopped as soon as Northrop Grumman
became aware there was a serious problem. So I cannot say for
certainty that everything that ever went on a Mail2 server that
was an e-mail message can be recovered. But to the extent that
the tapes exist and they can be read and we believe we stopped
the bleeding, which--we corrected the problem. We also made
every effort to make sure that the tapes--the back-up tapes
were created, were kept. To that extent, these records that
appear here should be recoverable.
Mr. Kanjorski. And at some point we're going to be able to
have them and you're working on reconstructing them now, is
that correct.
Mr. Heissner. That's correct. And the objective is to
recover them.
Mr. Kanjorski. So these hours we're spending here, we're
eventually going to be able to read these things.
Mr. Heissner. That's correct, sir.
Mr. Kanjorski. Maybe I think we have too much time. We
don't have anything to do in the Congress. We're going to
rehash this because we can't wait or we're trying to find out
why they aren't here. I'm not sure I understand the thrust of
the issue at this point where we're beating you three gentlemen
to death over something that is going to be reproduced. It
wasn't your responsibility. You weren't involved in subpoenas.
You're technical people. You're doing the best you can to
reconstruct.
Mr. Burton. The gentleman's time has expired.
Perhaps I can shed just a little bit of light on it.
Subpoenas were issued by the Congress, a number of
committees and the independent counsels asking for all
documents that may be relevant to these various investigations.
These e-mails were part of the subpoenaed material. From
September 1996 through 1998 we don't have them, and we think
that they may be very relevant to what we were looking into,
and that's why this whole issue is so important.
Mr. Kanjorski. I agree with the President, Mr. Chairman. We
ought to find out what happened to those 10 pounds he lost.
Mr. Burton. Let me just ask one question, then I will yield
to Mr. Shays, and that is go back to exhibit 134, and that's
Mr. Lyle, that's the document where the Mail2 reconstruction
was crossed off, and that was not put on the final draft. It
was prepared for the Appropriations Committee, and you said it
was because of the Y2K problem that you had so much--you had to
focus so much attention on that, and the e-mail problem was not
that significant importance at that time, so you didn't pursue
it. I would just like to ask you this question: At the same
time the White House was installing Palm Pilots for the White
House staff, they were creating new fax cover sheets for the
White House staff, and they were working on the White House
Christmas card list. Now, that was going on, and you thought
that was important enough to pursue it. But the e-mails that
were important, relevant to all of these subpoenas and these
investigations, wasn't as important as the Y2K. Can you explain
the difference there in the priorities?
Mr. Lyle. The--my understanding is that the system that you
talk about, the Christmas card system----
Mr. Burton. Well, and the other two, yeah.
Mr. Lyle. The other two are the day-to-day operations that
our staff was doing. Those were ongoing. I mean, you still had
to service customers, you still had to provide service. You had
to fix their systems.
Mr. Burton. The Palm Pilots and all that.
Mr. Lyle. Those are customer service types of things. Those
are always ongoing. You have to do that. So those were projects
that were ongoing.
Mr. Burton. And the fax cover sheets for the White House
staff?
Mr. Lyle. Well, again, those are ongoing customer service
initiatives. We have to have a day-to-day operation capability
that allows people to do their jobs, which would include----
Mr. Burton. Why wouldn't subpoena compliance be ongoing? I
mean, it seems to me that would be pretty important, subpoena
compliance. Why wouldn't that be ongoing? I mean, if the fax
cover sheets and the Palm Pilots were important, why weren't
the subpoenas an ongoing----
Mr. Lyle. Subpoenas, responses to subpoenas are always
done, and we do respond to subpoenas. We've gotten subpoenas
from this committee. We've gotten subpoenas from the Office of
Independent Counsel since I've been there. We respond to those
accordingly in the same process that I've described in my prior
testimony.
Mr. Burton. Mr. Shays.
Mr. Shays. Mr. Lyle, I'm a little confused, and I apologize
if it's my fault. I realize, Mr. Heissner, you are a career
employee of many years and serve with distinction, so this is a
real unusual circumstance for you to be before the committee,
but I think you understand the challenge. I mean, the challenge
is that information was subpoenaed by Starr's investigation, by
this committee, by the Judiciary Committee, and for 2 years,
from basically September 1996 to November 1998, the problem
existed, but people in the White House, and we just need to
know who, knew the extent of the problem, knew on June 18th.
But you didn't know the extent of the problem because for one
thing you were never supplied the document that described how
there were 246,000. And that's telling, because, you know, this
is an area that you should have been.
And then it strikes me you were asked in the fall later in
that year of 1998 to describe the problem to others, and you
were not given all the relevant information. Am I off track a
little bit? I mean, were you given all the relevant
information----
Mr. Heissner. The----
Mr. Shays [continuing]. To know the extent of the problem?
Mr. Heissner. The collection of the information involved
the discussions with other technical staff to get an overview
of the problem and to get an order of magnitude of the problem,
and it is very likely that I was not given full details to the
infinite degree.
Mr. Shays. Your testimony says that you weren't given this
document that was provided by Bob Haas of Northrop to someone;
you were not given--and it was provided on June 18th, 1998--you
were not given that document, and this document shows 246,000
e-mails that weren't captured just under the Mail2 problem. And
you did not have that document.
Mr. Heissner. No I did not have that document.
Mr. Shays. You did not have that document, when you then
tried to clearly state the problem as it existed in the fall of
1998, you did not have this document to refer to.
Mr. Heissner. That's correct, sir.
Mr. Shays. I don't know whose clock this is now, whose time
that is. Is that my time now?
Mr. Burton. You and Mr. Barr are both next.
Mr. Barr, do you want to go next?
Mr. Shays, you have 5 minutes. That was my time.
Mr. Shays. Thank you for your time, Mr. Chairman.
Mr. Lyle, what I'm trying to wrestle with in your
explanation is you just proceeded to say that you have provided
subpoenaed information to various committees at request. Is
part of your responsibility to provide subpoenaed information?
Mr. Lyle. It's part of everybody's responsibility to
provide information responsive to subpoenas.
Mr. Shays. Let me just say the problem is, with everybody,
when everybody is responsible, nobody is. So I need a little
more accuracy. When is it your responsibility?
Mr. Lyle. When a request for information is received, and
information internally needs to be provided to the White House
counsel's office, a notification is sent throughout the
Executive Office of the President complex for individuals to
search their files----
Mr. Shays. OK.
Mr. Lyle [continuing]. And their files and materials, and
then, in a fashion just like what Mr. Heissner described,
submit that up the chain to make it to the White House
counsel's office for them to review.
Mr. Shays. So your information was only to provide the
information you personally had or in your capacity as the
director of the Executive Office of the President's Office of
Administration, you would have a more expanded task to make
sure others complied with subpoenas.
Mr. Lyle. When it comes into the Executive Office of the
President into the Office of Administration, it goes in through
the General Counsel's Office, who sees to it that everyone
responds back. It's all gathered up, and certification is sent
up to the counsel's office wherein they----
Mr. Shays. But what I'm trying to clarify is when you get
requests, it's not just for your own specific e-mail, but it
can be other e-mails that are in your system.
Mr. Lyle. It's whatever is under my control.
Mr. Shays. Right. Under your control. Which could include a
number of the people on this list, correct?
Mr. Lyle. I don't know.
Mr. Shays. I mean, just some of them, let's just say Ira
Magaziner, if there was a request for Ira Magaziner
information, they might make that request to you to provide
information that would be in your system.
Mr. Lyle. What information is sought in the notification
that we receive in the first instance is what we endeavor--what
each person is required to endeavor to respond to.
Mr. Shays. Mr. Lyle, could you look at this exhibit 62 and
just tell me if you have ever seen it?
Mr. Lyle. I have looked at it, and I don't believe I've
seen this before.
Mr. Shays. You don't believe it, or you haven't seen it?
Mr. Lyle. I don't believe I've seen it.
Mr. Shays. So it's a pretty strong statement that you
haven't seen it to the best of your knowledge.
Mr. Lyle. That's right, to the best of my knowledge I
haven't seen it this was in June 1998.
Mr. Shays. This includes 246,000 e-mails that slipped
through, and they were different personnel. Ira Magaziner,
Betty Currie, Bill Clinton, the list--Bruce Lindsey. Now, would
you have heard some of these names come through you as
requested subpoenaed information?
Mr. Lyle. I don't recall what I've responded to in terms of
subpoenas.
Mr. Shays. But lots of names of people, certainly more than
just a handful.
Mr. Lyle. The subpoenas that I responded to could include
both names and, you know, types of topics.
Mr. Shays. But lots of names, correct?
Mr. Lyle. I don't know.
Mr. Shays. Lots of e-mails.
Mr. Lyle. I'm sorry?
Mr. Shays. You were requested to turn over e-mails, right,
that were in your system?
Mr. Lyle. Well, there again, there's a couple of ways that
you proceed. Again, there's the automated records management
search portion of the request which is coordinated by the
counsel's office, and then, yes, you search your files, your e-
mails, you search your hard copies, you search what's in your
office.
Mr. Shays. But you had the central file system, correct? I
mean, you have the names of a lot of people in your system.
Mr. Lyle. In our Automated Records Management System, yes.
In the ARMS, there's a good number of people in the ARMS
system.
Mr. Shays. I'm just trying to get beyond the point of your
own little individual computer. You were in charge of the
system.
Mr. Lyle. No, I think I understand what you're trying to
get. Each person searches their space or their office or their
documents that are in their--and then a request is submitted
for an automated records management search to be done. That
request is generated out of the counsel's office.
Mr. Shays. To you.
Mr. Lyle. No, not to me. It goes right into the IT people,
information technology people, in the Automated Records
Management System.
Mr. Shays. But it's fair for me to assume that you were
aware, because the White House kept, frankly, criticizing so
many committees in Congress that we were requesting too much
information on lots of different names. So, I mean, you weren't
in the Dark Ages on that. I mean, you must have heard
complaints about all the e-mails that we wanted and all the
records we wanted about so many different people.
Mr. Lyle. That's something that Mr. Heissner touched on
earlier in this hearing.
Mr. Shays. So you were aware of it.
Mr. Lyle. Yes.
Mr. Shays. So what I'm trying to establish is what you were
aware of and what you weren't. So you knew that Congress was
looking at a lot of different people that worked in the White
House and wanted a lot of different records, and that's one of
your points, too, it was a costly effort to comply with that.
Mr. Lyle. Yes, it was costly.
Mr. Shays. Besides having to fix the problem. But you
weren't in the Dark Ages about that. I feel better about
knowing that. But what I don't feel good about is that you
would then make an assumption that I think is--blows my mind
that some of these e-mails would not have been subpoenaed e-
mails.
Mr. Lyle. Some of which e-mails?
Mr. Shays. Some of these lost e-mails.
Mr. Lyle. I don't know what's on the backup tapes. I don't
know what was sought in the subpoenas. I have no basis to know.
Mr. Shays. You have a little basis. You have a basis that
to correct the problem is going to cost about $600,000, that
that was a big job and involved a lot of people. And what I'm
hearing you say is that notwithstanding, you made an assumption
that this didn't involve any subpoenaed records.
Mr. Lyle. No, I did not make an assumption. Two points.
First, the reconstruction is not going to cost $600,000, it's
going to cost $8 to $10 million. The----
Mr. Shays. OK. I'm just going on the memos that you
provided.
Mr. Lyle. That was an earlier statement of work that you're
referring to, and that was just a cost for an assessment on how
to fix it.
Mr. Shays. OK. So the problem is even bigger and involved a
lot more people.
Mr. Lyle. It's going to take a long time and cost a lot of
money. We are working as quickly as we can.
Mr. Shays. I understand. Trust me on that.
Mr. Lyle. That's the other portion. With respect to the
subpoena issue that you keep asking about, when I was briefed
in April 1999 about the Letter D problem, we were discussing in
that meeting, OK, what has to happen and the subpoena problem.
Mr. Shays. You didn't know about the Mail2 problem then?
Mr. Lyle. As I said, my most--my best recollection is that
I learned what I know most about the e-Mail2 project in the
April 1999 meeting. And it was because it was--it served as a
historical framework as far as how to deal with this letter D
issue. And during the course of those conversations, Mr.
Lindsey, who I worked for and who was my predecessor, had
explained the process in terms of, listen, we need to notify
the counsel's office, which is exactly what took place.
Mr. Shays. Why would we need to notify the counsel's
office?
Mr. Lyle. Because you had this anomaly.
Mr. Shays. Why would the counsel's office have to be
notified at all?
Mr. Lyle. Because Counsel's Office was responsible for
responding to subpoenas.
Mr. Shays. So you did know there was a subpoena problem.
Mr. Lyle. I did not know--the e-Mail2 subpoena problem, as
I understood it based on my conversations, had been resolved
prior by Mr. Lindsey and Mr. Ruff. The letter D e-mail problem
was a new issue that had just come up. It just occurred. It was
discovered in April 1999. The same notification had to take
place, and Mr. Lindsey worked to make sure that that happened.
On Office of Administration's side what we needed to do is be
sure that we had all the data on the backup tapes for the
compliance with the other Federal Records Act.
Mr. Shays. Can I make a request, Mr. Chairman? This is the
last line of questioning. I would like more time afterwards.
Mr. Burton. We'll come back then. Let me just followup and
ask one quick question. When did the White House go to--before
the Appropriations Committee for the year 2000 budget?
Mr. Lyle. When did we go?
Mr. Burton. Yeah. What month was that?
Mr. Lyle. I don't remember. It was in early 1999.
Mr. Burton. It was in April, May, June?
Mr. Lyle. I believe it was in the February/March timeframe,
somewhere in there. I would have to look.
Mr. Burton. But you knew about the second e-mail problem,
and you said that you were----
Mr. Lyle. I learned about that in April 1999.
Mr. Burton. Kicking it up to Mr. Lindsey because you knew
that there was a subpoena, and that had to be given to him, he
had to be aware of that.
Mr. Lyle. I didn't know about a particular subpoena.
Mr. Burton. You knew there were subpoenas pertaining--you
knew about the previous subpoena on the previous e-mail
problem.
Mr. Lyle. Certainly.
Mr. Burton. You didn't connect the two?
Mr. Lyle. I'm sorry?
Mr. Burton. You didn't connect the two, that the subpoena
was relevant to the second missing e-mails as well?
Mr. Lyle. I didn't say that. I said in the context of
discussing in the April 1999 meeting, we were discussing the
letter D issue, we needed to make sure that information about
that anomaly was conveyed to counsel's office because----
Mr. Burton. I understand. But during this entire timeframe,
you were crossing out or they were crossing out information
that was going to be conveyed in the final document to the
Appropriations Committee about the need for funds for the
missing e-mails, and I just can't understand how you could miss
all this when you were kicking things up to Mr. Lindsey, who
was kicking them up to--to the chief counsel's office at the
White House.
Mr. Lyle. As I said, Mr. Burton, I have no recollection of
having seen these drafts in the February timeframe. I told you
that earlier. I learned of them more recently when we were
producing documents for this committee.
Mr. Burton. Mr. Barr, do you have any further questions?
Mr. Barr. Just a few here if I could engage counsel just to
colloquy or ask him a few questions.
Going back, counsel, to exhibit 61, which is the list of
various names and numbers of e-mails, the handwritten numbers,
the larger numbers on the very left of those pages, again,
there's a number for each name, and that would represent the
total number of e-mails in that individual's computer on that
particular--and the day of June 18th.
Mr. Wilson. Correct.
Mr. Barr. The number immediately under the user's name
would be the number that was not captured as of that day.
Mr. Wilson. That's also correct.
Mr. Barr. Thinking back, if counsel would, on counsel's
legal training and understanding of the law, if you have, for
example, as at the top of page NGL 00309 that the gentleman
from Pennsylvania referred to earlier, Mr. Erskine Bowles,
where you have the number of 1,108, which is 1,108 e-mails in
Mr. Bowles' system that day, and 161, which would be the number
that was not captured, if, in fact, counsel had been advising
that individual on that day to comply with the subpoena that
required all of those e-mails, would he give Mr. Bowles an A
because he was able to capture 90 percent?
Mr. Wilson. No, he would not.
Mr. Barr. In other words a subpoena, presuming it is
lawful, whether it is from an independent counsel, the
Government Reform and Oversight Committee, the Government
Reform Committee of this Congress, or the House Judiciary
Committee requesting certain documents including e-mails, it
does not presuppose nor does it excuse that simply because a
certain number of documents are not captured that day, that
they did not have to be produced or they are not covered by the
subpoena, correct?
Mr. Wilson. That's correct. And just to fill this on that,
it was the understanding of the committee through
representations made by lawyers for the White House that we had
received all information that was germane to our subpoenas. We
had not at any time been told that there was a universe of
documents that had never been searched for responsiveness to
our subpoenas. We were laboring under a misapprehension at that
time.
Mr. Barr. We now know that we have not been furnished full,
accurate and complete information pursuant to those lawful
subpoenas. Is that correct?
Mr. Wilson. That is correct. We also know from not only
this document, but subsequent to the discovery of this
document, or at least the furnishing to the committee of this
document, there have been other problems presented to us, one
in particular that implicates the entire Office of the Vice
President, where information--and the extent is still not
entirely clear--but information of the Office of the Vice
President has not been searched for responsiveness to committee
subpoenas.
Mr. Barr. Is it also counsel's understanding based on his
knowledge of Federal law and the law that pertains to
enforcement of subpoenas that the cost of compliance with a
subpoena is not a defense for failure to comply with that
subpoena in whole or in part. Is that correct?
Mr. Wilson. No, it is correct, yes. The cost should not be
a factor.
Mr. Barr. I would urge the witnesses to review their
understanding in light of some of the statements made earlier
by some other members of the committee in light of what counsel
has just said that when a subpoena is issued, whether it is by
an independent counsel, a committee of the Congress or some
other legal proceeding or judicial officer, that full
compliance is presumed, required and will be enforced either by
an order of a court or a finding of contempt or a case of
obstruction of justice for subsequent knowledge that a subpoena
has not been honored.
The fact that there may be certain Federal laws that relate
to retention of certain records for archival purposes, that
does not dispose of the issue. If, in fact, a subpoena has not
been complied with, if, in fact, as we now know, that the White
House counsel, the Office of Administration, and indeed
probably the Department of Justice knew that these subpoenas
were not being complied with, then subsequent action certainly
is relevant inquiry for this committee, notwithstanding the
fact that there may be technical compliance with the
Presidential Records Act or the Federal Records Act, for
example, because these records are maintained in some way, in
some place, in some form for archival purposes, and that is the
heart of at least part of the reason why this committee is very
concerned about this.
The subpoenas have not been complied with. Apparently no
efforts have been undertaken to secure compliance with those
subpoenas, and the best that we are being told by this
administration, by this Department of Justice is that in 6 to 8
months maybe something will happen. That will not--and in my
experience as a former U.S. attorney, and I presume, counsel,
in your experience as well as an attorney, that certainly would
not get one off the hook in a legal proceeding, nor should it.
I commend you, Mr. Chairman, for holding these hearings,
and I know there will be further, because some very important
principles regarding the rule of law and the prerogatives, the
lawful prerogatives of this committee, of the House impeachment
and judiciary committees, the independent counsel and legal
parties entitled to their day in court such as in the Alexander
case have a great deal at stake here in ensuring compliance
with lawful subpoenas. We have not seen that in this case, and
that's very disturbing.
Mr. Burton. Thank you, Mr. Barr.
Mr. Shays, did you have more questions?
Mr. Shays. Yes. Thank you.
Mr. Lyle, when Beth Nolan, the counsel of the President,
testified on March 23rd, in her statement she said when the
counsel to the President Charles Ruff was told by OA--that's
your organization, before your time, in 1998, but OA is Office
of Administration.
Mr. Lyle. OA, as I understand it, is Office of
Administration.
Mr. Shays. When then counsel of the President Charles Ruff
was told by OA in 1998 that there were e-mails that may not
have been captured in a previous search because of a technical
glitch--by the way, I buy that as a technical glitch. I don't
debate that--he understood that OA would be collecting those e-
mails so that any responsive e-mails that had not been produced
could be produced. Now, responsive e-mails means requests for
information or subpoenaed information.
Now, what Ms. Nolan is telling us is that Charles Ruff, the
previous counsel, was told that all these e-mails would be
provided, and you're hired later, and you're not providing that
information. You've not providing the so-called responsive
information. You are not providing the information, and e-mails
that were subpoenaed. So it's kind of like you both are like
ships passing in the night here. I mean, Mr. Ruff is saying you
guys are going to provide it, and you're saying you made a
decision that you saw this as an archive problem, not a
subpoena problem, and therefore you decided that you would
focus on other issues.
Mr. Lyle. I cannot shed any light for you, Mr. Shays, on
the communications that took place between Mr. Ruff and Mr.
Lindsey.
Mr. Shays. I understand that, but what I am just sharing
with you is the fact that Mr. Ruff was told, according to Ms.
Nolan, and she was under oath, that these e-mails had been
captured, and that they were--would be collected, and that all
responsive e-mails--in other words, all the subpoenaed e-mails
that hadn't been produced would be produced. So excuse me for,
you know, just being a little cynical. His argument is I was
told it was going to happen, you're hired, and you don't even
know that there's any subpoena problem. And that's relevant
information, and I accept it under the basis you've said it.
But what am I supposed to think up here as a Member of Congress
when I know these were subpoenaed information, and it wasn't
provided, and Congress wasn't told, and Starr wasn't told, and
the courts weren't told?
So, I guess we'll just keep trying to figure out who hired
Craig Livingstone, and we'll try to figure out who knew what
when. And I just wish someone would help us out.
I yield back.
Mr. Horn. Mr. Chairman, if I might on this question?
Mr. Burton. Yes. The gentleman from California.
Mr. Horn. Gentlemen, I'm sorry I had to come in late, but
it triggered me on the question of who hired Mr. Livingstone
because I asked that question, and Mr. Clinger, then the full
chairman, sent it to the Attorney General and made it very
clear that one of our witnesses which was counsel to the
President had committed perjury. And so I wonder if any of you
have any information on that.
I don't think that this committee has ever received a reply
from the Department of Justice, and there's no question, the
question I asked was, was it Vice President Gore, was it the
First Lady, etc. And I think they knew, and they lied. So I
would like to see an answer to Mr. Clinger's letter to Mr.
Burton at the time.
Mr. Zwerling. I am advising my client to take the fifth
amendment on that, Your Honor.
Mr. Burton. Does the gentlemen have any more questions?
Mr. Horn. That's it, because I'm tired of lies.
Mr. Burton. Well, I want to thank you both for being so
patient. And we'll now go to the next panel. Thank you very
much for being with us.
Mr. Raben, we're glad that you're with us. We're sorry that
you had to wait so long. While you're standing, would you take
the oath?
[Witness sworn.]
Mr. Burton. Be seated.
Do you have an opening statement, Mr. Raben?
Mr. Raben. Yes, sir I do. I'll get to it right now.
Mr. Burton. All right. Take your time.
Proceed, Mr. Raben.
STATEMENT OF ROBERT RABEN, ASSISTANT ATTORNEY GENERAL FOR
LEGISLATIVE AFFAIRS
Mr. Raben. Thank you, sir. Mr. Chairman and members of the
committee, I am here today in response to your request by
letter of April 26th. As the committee understands, many of the
questions posed in the chairman's letter of April 26th relate
to matters and activities in which I have had no personal
involvement, but I have prepared as best I can in the days
since the chairman's letter to answer the committee's questions
consistent with the Department's and the public's fundamental
interest in effective law enforcement.
More than a month ago, the Department's Criminal Division,
acting through the Campaign Finance Task Force, began an
investigation into whether the Executive Office of the
President complied with subpoenas issued by the task force and
this committee. In conjunction with that inquiry, Criminal
Division attorneys conferred with representatives from the
Office of Independent Counsel because the Office of Independent
Counsel had commenced its own investigation into nearly
identical allegations surrounding the White House e-mail
retrieval issues.
Thereafter on March 22nd, the Office of Independent Counsel
explicitly authorized the Department of Justice to continue its
investigation pursuant to the Ethics in Government Act, which
provides in pertinent part that whenever a matter is in the
prosecutorial jurisdiction of an independent counsel, the
Department of Justice shall suspend its investigation regarding
such matter unless the independent counsel agrees in writing
that such an investigation may be continued by the Department.
Since last month when the independent counsel authorized
the Department to continue its investigation of the e-mail
retrieval issues, the independent counsel and the Campaign
Finance Task Force have been working in coordination conducting
many joint interviews and reviewing numerous documents and
other evidence. This criminal investigation is active and
ongoing.
Several of the questions in the chairman's letter of April
26 relate explicitly to matters currently under review in this
criminal investigation. As I have explained in my letters on
this and other committee requests, disclosure of matters
involving an open investigation can compromise the efforts of
prosecutors and FBI agents to enforce Federal law. Experienced
prosecutors tell me that it would undermine law enforcement if
defendants or prospective defendants learn the government's
factual or legal theories or what information the government
had gathered and from what sources. Even neutral witnesses can
have their recollections influenced or confused by public
disclosures of statements or speculation from other witnesses.
The disclosure of raw or preliminary investigative
information that has yet to be fully investigated or
substantiated can also damage unfairly the reputations of
innocent individuals and mislead the public about the
underlying facts.
Finally, congressional inquiries into ongoing
investigations create the added danger of undermining the
credibility of law enforcement by injecting or appearing to
inject political considerations into the criminal justice
process.
Therefore, at this time, the Department cannot comment
about any particular actions that have been undertaken or may
be undertaken during the course of the ongoing investigation
into the e-mail retrieval issues. Nor can I comment on who at
the White House or Justice Department may have known what and
when about the e-mail retrieval issues as that is part of the
ongoing criminal investigation. All I can do is convey the
assurance of the Campaign Finance Task Force that the
prosecutors working in coordination with the Office of
Independent Counsel will follow the facts and the law wherever
they may lead.
You have also asked why the Department has not agreed to
make the Civil Division attorneys working on the Alexander case
available to the committee for interviews. My letter of April
12 identified several reasons why the Department declined the
committee's request. As I stated in that letter, the
committee's proposed inquiry relates directly to the ongoing
criminal investigation now under way by the Campaign Finance
Task Force and the Office of Independent Counsel. In the
Alexander case, the Department asked Judge Lamberth to defer
consideration of the e-mail retrieval issues precisely because
multiple investigations of the same conduct and multiple
interviews of the same witnesses would interfere with and
undermine the ongoing criminal investigation.
Just last week Judge Lamberth agreed to continue deferring
consideration of the e-mail retrieval issue. The court's
judgment that this investigation should proceed before a public
airing of these allegations also is applicable, in our view, to
the committee's request to interview the Civil Division
attorneys assigned to the Alexander case. In the Department's
view, committee interviews of these attorneys would interfere
with and may undermine the ongoing criminal investigation.
In addition, the committee's proposed inquiry of the
lawyers in the Civil Division runs counter to the Department's
view that line attorneys and agents should not be required to
answer questions from Congress about the conduct of litigation
or the pending criminal investigation. We try our hardest to
ensure that the Department's line attorneys and agents can
exercise the independent judgment essential to effective law
enforcement and litigation. That independent judgment is
seriously threatened when Congress seeks to question Department
attorneys or agents about the actions they took and the
litigation decisions they made in an ongoing case.
There have been bipartisan objections to congressional
inquiries of Department line attorneys, even when those
attorneys have been sought to explain matters that have
concluded. Former Attorneys General Barr and Civiletti have
argued against subpoenas to line assistant U.S. attorneys as
has former Acting Attorney General Stuart Gerson. The American
Bar Association has also argued against it. The bipartisan
National Association of Former U.S. Attorneys sent a letter to
Assistant Attorney General Robinson last month making the point
that the effect on morale and the prosecutorial process would
be devastating if career prosecutors were called before
Congress to explain and defend their decisions.
Similarly, Mr. Chairman, we are not in a position at this
time to answer your questions or provide documents about the
recent interviews of the President or Vice President conducted
in furtherance of the ongoing campaign finance investigations.
As I mentioned in my letter of December 30, 1999, the
prosecutors and agents assigned to the Campaign Finance Task
Force continue to pursue actively any and all criminal
violations of the campaign finance laws. The questions asked of
the President and Vice President, like those addressed to other
recent witnesses, pertain to ongoing campaign finance criminal
investigations. To date these investigations in which the
President and Vice President have been interviewed a total of 7
times have produced 24 prosecutions with 16 convictions and 6
cases awaiting trial. Producing witness summaries and documents
about recent interviews would risk compromising the ongoing
investigations and undermine the confidentiality that is
essential to effective law enforcement.
Mr. Chairman, I appreciate the committee's oversight
interest in this matter, and I understand the committee's
frustration with the Department's pending matter policy, but I
also know the committee respects deeply the responsibilities of
the Attorney General to enforce the law, and I know the
committee has tried to avoid any action that would jeopardize
the effectiveness of this or any other criminal investigation.
I continue to hope that we can work together to accommodate the
committee's legitimate oversight needs while protecting the
integrity of our law enforcement efforts. I will continue to
try to do everything I can to make that possible. If I could
have that introduced into the record.
Mr. Burton. Without objection.
[The prepared statement of Mr. Raben follows:]
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Mr. Raben. There are two small but important mistakes in
the written testimony, but not in the oral that I know that I
just said. In the first paragraph, on page 1 of the written, it
says, ``In the few days since the Chairman's letter was sent,''
but it has been 7 days, and I appreciate your forewarning of
the questions.
Also on page 4, the written testimony says that the
investigation has produced 22 prosecutions. I'm told this
morning it's been 24. I appreciate that.
Mr. Burton. Well, we were going to--did you want to--you
want to make some opening? You want to have some opening
questions on your side? We're going to go to our counsel.
Mr. Waxman. Go ahead.
Mr. Burton. We'll go with our counsel. Let me just say as I
yield to our counsel, you talked about the record of the
Attorney General and the Justice Department. Charlie Trie, who
fled the country and was in China for some time, got virtually
a slap on the wrist, no jail time and a very small financial
penalty. John Huang likewise got some community service time, a
slap on the wrist and a very small financial penalty, and
that's the administration of justice that we have seen.
When you cite all of these convictions and all of these
people being brought to justice, it rings hollow, at least with
this chairman, because people who are very, very instrumental
in bringing millions of dollars into the DNC and the
President's reelection committee were never really brought to
justice. They just got a little slap on the wrist, and we think
that's--we think that's an aberration of what justice is all
about. We don't think that's what the administration of justice
should be.
Go ahead, Mr. Wilson.
Mr. Wilson. Mr. Raben, good afternoon. I'll try and be as
brief as possible on these questions, and indeed your opening
statement and the letter that was furnished to this committee
early this morning answered some of the questions that we were
going to ask. So thank you for providing the answers albeit at
a late date.
We are aware that the Campaign Finance Task Force and the
Office of Independent Counsel are conducting a joint
investigation, and indeed in your opening statement you said
that the OIC and Justice Department have even conducted joint
interviews of individuals. Do you know whether there's ever
been a joint investigation like this between the Department of
Justice and any Office of Independent Counsel?
Mr. Raben. It's a good question. I don't know. I'll find
out for you.
Mr. Wilson. The reason I asked, it's one of the questions
we posed to you in our letter last week. We're interested in
knowing whether it is appropriate to conduct such an
investigation. Is it indeed appropriate for the Department of
Justice and the Office of Independent Counsel to engage in a
collaborative effort?
Mr. Raben. Thank you. It's the view of the Department of
Justice that we have the legal authority, and it is
appropriate. I can't and wouldn't speak for the independent
counsel, but the independent counsel explicitly authorized the
Department of Justice to pursue the investigation, and the
authority under which that authorization was exercised was 28
USC 597(a).
Mr. Wilson. I read your statement with interest, and I know
28 USC, section 597, and it allows any Office of Independent
Counsel to authorize the Department of Justice to investigate a
matter, but that's a different issue than we're facing today.
It is certainly true that the Office of Independent Counsel
could authorize the Department of Justice to investigate the
same matters that it itself is investigating. The statute
provides that, but is it appropriate, is it indeed legal for
the Department of Justice and the Office of Independent Counsel
to engage in a collaborative effort?
Mr. Raben. I think it's a fair and interesting question. I
can only speak for one of the parties engaged, which is the
Department of Justice thinks it is appropriate to coordinate
and has coordinated with the OIC on this matter. I don't know
if joint--I'm not quibbling with you. I don't know the joint
investigation is a term of art. I don't--I'd be very hesitant
to overcharacterize or undercharacterize, for that matter; that
is, I don't want to say anything inaccurate. To the extent--let
me tell you the extent of my knowledge is that we were--the
Campaign Finance Task Force is coordinating in a way that they
think is appropriate with the independent counsel. Again, I
can't speak for the independent counsel.
I do know that Judge Lamberth has been hearing from the
Campaign Finance Task Force. I don't know, I assume he has been
hearing from the independent counsel, but again, I don't know
about that prong, but Judge Lamberth himself has been hearing
from the Campaign Finance Task Force about the pace and
substance of their investigation.
Mr. Wilson. I'll put a request to you now that you provide
an answer to the committee as to whether it is indeed provided
for in the statute that there can be a collaborative effort. I
don't want to get theoretical here. It's my understanding that
the Office of Independent Counsel and members of the Department
of Justice are sitting in the same room interviewing people at
the same time, and one concern is that undercuts the very
nature of independence that is in the title of independent
counsel statute.
So that's something perhaps we can't resolve today, but if
you could provide for us the legal analysis that allows that to
happen. If you could tell us what the safeguards are that would
insulate the task force and this--and the independent counsel
investigation from political influence or supervision at the
Department of Justice. What special safeguards have you built
into this particular collaborative effort?
[The information referred to follows:]
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Mr. Raben. I can't speak to every one of them because I
don't--the demands of my job are such that I can't participate
in every conversation or every meeting on all the important
things going on at the Department of Justice all the time. That
being said, I know that the Department and the individuals who
are charged with doing the different components of what I--what
we all know to be a multifaceted issue here are careful to
respect the lanes, and it is not uncommon for the Department to
find itself in a position where in the normal course of
representation of an agency, or in this case Executive Office--
--
Mr. Wilson. I respect that. What I'm asking is, is there
anything special that's been done in this particular case to
set up a firewall? Do you know of anything different in this
case than any other case?
Mr. Raben. I need more information to answer you properly
because I haven't participated in other cases, so I don't know
if this one is different, and no one has said in this case we
have to do it unlike any other case. I can tell you what I
witnessed, which is a division, and it's a division and a
reminder that there are different lanes, and that the divisions
need to respect those lanes, and that division, as I say, has
been monitored by Judge Lamberth.
Mr. Wilson. I will ask if you would, please, in the not-
too-distant future, if you could provide for us the analysis of
what has been done, if anything. Perhaps it's the same
situation that's been set up for the task force. Maybe there's
nothing different, and if there is nothing different, that's
the answer, and that's acceptable in terms of the answer.
On March 27, which is now, I guess, 5 weeks ago, the
chairman of the committee made a request to the Department of
Justice to appoint a special counsel to investigate the e-mail
matter. As of this date, there has been no response to the
request, and now that you're here, perhaps you can provide us
an official response if there is one.
Mr. Raben. Yes. The official response is that we continue
to work on it, that it's a serious request, and that it's being
taken seriously. At the risk of not being seen as a team player
at the esteemed Department of Justice where I'm very happy to
be employed, I would have hoped that we could have provided an
answer even to ourselves earlier than now. I know that we said
in a letter to you of April 12 that we'd get you an answer
promptly, and I continue to hope that it's promptly, and that's
the best I can do.
Mr. Wilson. From the perspective of the committee, we have
asked this question because an awful lot has happened in the
last 5 weeks.
Mr. Raben. I'm reminded by folks, and clearly this is not
on all fours, but I'm reminded that under the then existing
independent counsel statute, the Department had 90 days to
determine, but I would fully hope that we would get you an
answer long before 90 days.
Mr. Wilson. Let me--I'll work into this slowly. Do you know
when the Justice----
Mr. Burton. Excuse me. Let me just interrupt here. I don't
know what kind of timeframe would be allowable, but we would
certainly hope it would be quicker than 90 days. In fact, it
doesn't seem like it's that difficult a decision to make. We're
talking about the Justice Department being on both sides of an
issue. You have one division of the Justice Department on one
side and another on the other side. How can the Justice
Department work against itself? That's the issue, and I don't
think that issue should take 90 days or 30 days. We need to
have an answer back, and the Attorney General and her top aides
over there ought to be able to sit down and resolve this in a
matter of a few hours.
Mr. Raben. It's not the Department of Justice working
against itself. I know that that characterization has been said
before, but there are, as I understand it, a group of career
employees in the Civil Division about whom allegations have
been made. Allegations became sufficient such that the Campaign
Finance Task Force thought it appropriate to open a criminal
investigation. Once that occurs, the ordinary course of
business is to stay or defer that aspect of a civil litigation,
in this case the Alexander case, which might be implicated or
interfere with the criminal investigation, which we think takes
primacy. We think that's the most important thing.
I appreciate the characterization that's been made that
it's the Department of Justice working against itself, but I
have learned that, in fact, it is not uncommon for----
Mr. Burton. I want to make sure I understand. What you're
saying is the civil case is, in essence, being put on hold
while the criminal case proceeds?
Mr. Raben. No, I don't mean to say that, and if I did, I
apologize. Those aspects of the civil case, the Alexander
litigation, which are implicated by the criminal investigation
are deferred, but they are only deferred through the approval
of Judge Lamberth. We can't do that on our own, but the
Campaign Finance Task Force folks go to the judge and engage
him on the progress of the criminal investigation, and the
judge makes a decision of what pace, what aspects of the civil
litigation should be deferred or not.
Mr. Burton. But the request has been made that he defer
action on the civil case until the criminal case has been
resolved. That's what they requested of the judge, right?
Mr. Raben. I'm with you 92 percent of that, I think. I have
to go look at the filing again.
Mr. Burton. In essence, what the Department of Justice is
asking for is a deference of the civil case while they run out
the clock on the criminal case.
Mr. Raben. They are asking for a deferral of those aspects
of the civil case. There are aspects of the Alexander case
which precede. There are aspects which we asked to defer, and
the judge has taken it----
Mr. Burton. Taken it under advisement.
Mr. Raben. Taken it under advisement, thank you.
Mr. Wilson. There are two real-world problems that have
come up, and maybe they are not of great significance at the
end of the day, but help me work through these. One, it has
come to our attention that when the Mail2 problem was
discovered, individuals at the White House contacted a
Department of Justice attorney named Jason Baron, and we have
no idea what that contact entailed, but the White House reached
out to a Department of Justice lawyer named Jason Baron.
Yesterday, late in the afternoon, we were provided documents by
the White House that had been kept from us subject to claims of
privilege, and on one of the documents there was the name Jason
Baron and his telephone number.
Now, we have not had an opportunity to ask people what
happened, and we'll do that in the future, but we have been
asking to talk to Department of Justice attorneys, and you have
very respectfully declined our requests and said, we cannot do
that. I am wondering whether you know if the Department of
Justice has or has not authorized Mr. Baron to talk to anybody
in the White House?
Mr. Raben. I don't know that.
Mr. Wilson. We would very much like you to find that out if
you could.
Mr. Raben. Whether the Department has authorized Mr. Baron
to talk to anyone in the White House?
Mr. Wilson. Yes. It's my understanding that Mr. Baron, who
may not be employed by the Department of Justice now, but falls
under the same constraints that you apply to us under your
request for line attorneys to testify--we are prevented from
having line attorneys to talk to in this particular case, and
yet we were very surprised by a contemporaneous notation of Mr.
Baron's name with his telephone number on top written by
somebody who is employed by the White House.
We do not know whether there's been a contact or not, but
this is one of the real-world problems that we face. We ask for
a special counsel because we're concerned by the types of
appearances and problems that occur when the Department of
Justice is investigating, first of all, its own lawyers, and
second of all, people in the White House counsel's office.
That's one thing. I will return to that slightly in a moment.
Second thing is documents were withheld from us temporarily
by the Department of Justice under claims of privilege. Do you
know whether the White House consulted with the Office of Legal
Counsel regarding claims of privilege?
Mr. Raben. I don't have any information about that.
Mr. Wilson. That's another question we would very much like
you to answer because in the past when the White House has
decided to embark upon considering claims of executive
privilege, as has indeed happened in this particular case, the
White House has gone to the Office of Legal Counsel.
Now, this committee obviously would have a particular
concern with the White House going to the Department of
Justice, which is already on both sides of the same case, and
getting a reading as to whether the Department of Justice
concurs with a claim of privilege, and this is another conflict
that we've seen just in the last week potentially.
So again, if you could provide an answer to that specific
question.
Mr. Raben. There's two prongs to that. I'll find out, and
then I have to find out what the restrictions are in revealing
what I find out. Help me out. What's the conflict in--I don't
know that they did, and I'll try to find out, but what's the
conflict in the White House asking about the legal aspects of
asserting a privilege which is the White House's to assert,
which I understand they didn't assert?
Mr. Wilson. I don't want to be mysterious. Congress wants
documents. Just as we would have liked to have had full
searches of all this universe of e-mails back 2 years ago and
not have had to wait all this time, Congress has asked for
information, and the White House decided to take an approach
that would have denied the committee access to certain
documents. And one of the questions we would ask is whether the
Department of Justice was at all complicitous in preventing
documents from coming to Congress. That's part of, again----
Mr. Raben. They didn't assert privilege, right? A person
mentioned they were thinking about it?
Mr. Wilson. There was a delay. Documents were not produced
to us immediately. So we'd like to know whether the Department
of Justice was providing legal services. Did the Department of
Justice provide legal service to the White House in a case that
is already on two sides of the issue?
Mr. Burton. Let me ask a question for clarification. The
gentleman's name that was in the margins of this document that
was delivered to us and his phone number, is he a member of the
Department of Justice?
Mr. Wilson. Mr. Baron was the Department of Justice
attorney. He apparently has been teaching at a university in
Canada and is on his way back to the United States. He's going
to be taking up a position apparently in the U.S. Government.
We do not know his current----
Mr. Burton. Is he on sabbatical from the Department of
Justice or on leave?
Mr. Wilson. We don't know.
Mr. Raben. I'll find out his status, sir. I'm glad his
name--I'm not glad his name came up, but since his name has
come up, I answered--I was told yesterday--you had asked me the
last time I was here the Civil Division attorneys that worked
on the case, and I ultimately was able to provide toward the
end of that hearing a list of four or five people. Apparently
Mr. Baron is one of the attorneys who worked on the case. He
was not--his name does not appear on the pleadings apparently.
Mr. Burton. But he's one of the attorneys that worked on
the civil case?
Mr. Raben. Yes.
Mr. Burton. Those documents that we received, were those
regarding the civil case?
Mr. Wilson. The documents we've received appear to be
documents that relate to members in the White House trying to
find out what's happening in this matter right now. So it
appears to be the White House gathering information, and so we
might say they are doing their homework right now, and the
simple way of putting it is has the Department of Justice
helped the White House do their homework to prepare for these
hearings? And we will be hearing from former White House and
current White House employees tomorrow. The simple question is
has the Department of Justice, notwithstanding this potential
conflict, helped the White House prepare for the hearings that
we're putting on right now?
Mr. Raben. I have no knowledge of that. I have not--I have
stayed away from that, but I'll find out.
Mr. Wilson. If you could followup on that. That would be
very helpful.
Mr. Raben. Yes.
Mr. Wilson. Just to stay on the line attorney policy for
just a moment, I worked at the Department of Justice. I'm
extremely sympathetic to the Department of Justice's line
attorney policy. As I've pointed out to you and associates who
are behind you, the committee has a conceptual problem with the
way the Department has handled the line attorney policy. We are
well aware that line attorneys have been made available to
Chairman Dingell's subcommittee, in the Rocky Flats dispute.
They've testified to us in Waco investigations we've conducted.
Senator Specter recently had line attorneys testify before him
in the Senate.
There appears to be a unifying factor in all of this, and
that is when the line attorneys have been able to tell a story
that's helpful to the Department of Justice, they have been
provided for questioning. Now, what I'd like, if you could help
us with this, if you could distinguish the situations where
line attorneys have testified before Chairman Dingell, before
ourselves in the Waco investigation, before Senator Specter,
just in the last few weeks from our request to have access to
line attorneys that we would like to talk to.
Mr. Raben. I can convey to you the distinctions that are
conveyed to me. The distinctions are either fact witness,
subpoena, or mistake. Those are the three basic exceptions--not
exceptions, but those are the three basic defenses or
justifications, if you will, that I have been able to discern
distinguishing one matter from another.
I hear your neutral principle that we serve it up when it
tells a good story or not. I'd be eager to talk with you more
about that. And I don't mean this flippantly, but I think we
would serve up a lot more if that were the neutral principle.
That would be my sense. I am more comfortable--as one of the
spokespersons for the Department and my name goes on a letter,
I'm more comfortable articulating the policy along the lines of
the following: We try mightily, and we do almost everything we
can to prevent line attorneys from testifying in public or
responding, especially during an ongoing matter, to questions
from Congress about how they are handling a case, both the
strategy and the substance of the case. Sometimes those efforts
are successful from our point of view, and sometimes they are
not.
Mr. Wilson. I appreciate that, and what you say makes sense
to us, but in this case we're not looking for strategy in a
case. We're not looking for the substantive material that's
being discussed in the case. The conduct of the attorneys
themselves is under investigation both by the Department of
Justice and the independent counsel and by this committee.
Let me just try and at least clarify one thing that's been
now outstanding for a year and a half, and that is it was
represented to us by the very colleague that's sitting behind
you 18 months ago that the principle that the Department of
Justice was standing on is that if line attorneys had talked to
the press, that was a deciding factor in making them available
to testify before Congress. That was not one of the three
factors you just cited a moment ago, and I would like to know
and the committee would like to know finally whether that is
indeed a principle that you hold out as having any relevance
whatsoever to your decision.
Mr. Raben. Oh, you asked an easier question than I thought
you were going to ask. Does it have any relevance? I think that
every--I think that we treat every accommodation and every
committee as sui generis. The use of stare decisis in these
cases has confused me from the moment I got to the Department.
In that sense, it's relevant. I have disagreements with my
superiors and people with whom I work and myself on any number
of matters, small and large, and I think I need to continue to
learn more about this one, but I would go so far to say it
would be a relevant factor, but I wouldn't consider it
dispositive.
Mr. Wilson. Let me turn to another subject very quickly, if
we may. At the last hearing at which you testified, we had
asked for your assistance in providing the names of Civil
Division lawyers who had worked on the e-mail matter in the
Alexander case, and you have provided those names, and we are
grateful for that. Can you tell us the lawyers who actually
participated in preparing the affidavit submitted by Daniel
Barry in the Alexander case?
Mr. Raben. Not yet. I can't yet. That is a key fact. I
presume it's a key fact. It's a fact in the ongoing criminal
investigation. Who said what to whom and when and whether or
not there was anything inappropriate in consultation or action
vis-a-vis that affidavit is a fact that is being vetted by the
criminal investigation.
Mr. Burton. You know who it is?
Mr. Raben. No, I don't. Because I knew I could not speak
about it, there was no reason for me to inquire.
Mr. Burton. How long ago has it been since we asked for
that? About a month. Unless it's covered by grand jury or 6(e)
or an ongoing investigation, we would like to know who that was
or who they were. Can you speed that up for us? It's been a
month.
Mr. Raben. I can ask the criminal investigation to speed
their investigation up. Absolutely.
Mr. Burton. It can't be that hard to find out who
participated in helping with that document.
Mr. Raben. You're right, but I wouldn't be able to reveal
that information even if I knew it until the criminal
investigation is complete.
Mr. Wilson. This morning we received a letter from the
Attorney General that was helpful in explaining in very general
terms a decision that has been made. The committee has
subpoenaed recent interviews of the President and the Vice
President, and this morning we learned in a letter from
Attorney General Reno to the chairman that the Department of
Justice would not provide those--the interview summaries of
those two interviews, and I'd like to--we understand the
rationale of the letter. We understand your basis. However, the
first question is, is it true to say that everything in those
interviews pertains to ongoing cases?
Mr. Raben. I don't know. I don't know. I presume that is--
--
Mr. Wilson. I don't think that's answered in the letter,
and I don't think it's answered in your statement, so it won't
help to look back. If you could answer that question as well.
What you are representing to us is that we cannot have these
interview summaries. Now, we have been for the last 3 years
very respectful of all requests from the Department of Justice
to not interfere with ongoing investigations. In the Johnny
Chung hearing we kept names off of the table. In the Trie
hearings, in the Huang hearings we did not ask certain
questions because we were requested not to, and we have been
respectful of the 6(e) policy, and we have been respectful of
ongoing investigations.
So simply put, the question is if there is material that
does not pertain to ongoing investigations, then we should at
least have an expectation to receive that information.
Mr. Raben. Right. I can confirm that the interviews were
conducted in furtherance of an ongoing investigation. You know
that, but you're asking a more nuanced question, if there are
2, 3, 4, 5, 8, 9, 10 questions that are clearly relevant to a
closed investigation?
Mr. Wilson. Closed or not open. I'll give you a specific
example because it helps explain what I'm saying. The committee
has been publicly very critical and the chairman has made many
statements about the failure of the task force to ask the Vice
President about the Hsi Lai temple, Buddhist fundraiser. Many,
many times the chairman has said not one single question was
asked of the Vice President. It is our understanding that
questions were asked of the Vice President at his recent
interview about the Buddhist temple fundraiser.
Now, we have been told that the Vice President is not under
investigation. There has already been a prosecution of Maria
Hsia. It's difficult for us to understand what is ongoing about
this investigation unless you were to try and say that it was
the contempt prosecution of the nuns or something else, but
there appears to be nothing ongoing. Indeed it would be
manifestly unfair to question somebody after the prosecution of
Maria Hsia if this issue was still ongoing. So what we don't
understand is what is off the table, what is ongoing about the
Buddhist temple fundraiser?
Mr. Raben. Right. You've been told in a variety of fora
orally and in letters that the Campaign Finance Task Force is
pursuing ongoing investigations, and that's a dynamic concept.
Things close, and they learn new information, as would be the
case, I assume, in many prosecutions. That may reopen
something.
Mr. Wilson. Fair enough.
Mr. Raben. I recognize that the independent counsel statute
is done, but you can learn information from a witness that
leads you to a new line of inquiry, and I think--the Campaign
Finance Task Force, I avoid asking too many questions of them.
I don't want to politicize what they are doing either. That's a
risk that I have to throw into the mix, but they remind me that
they have interviewed the President and Vice President several
times, and they have asked, they say, a lot of questions.
Mr. Wilson. Recognizing that investigations are dynamic,
they close, they open, and that's a rationale for a prosecutor
questioning somebody else, I'll ask you the specific question,
has the investigation of the Vice President been reopened in
the Hsi Lai temple matter?
Mr. Raben. I don't know.
Mr. Wilson. Is it because you're not able to tell us, or
you don't know?
Mr. Raben. The latter, I don't know.
Mr. Barr. Excuse me, if I could, counselor.
Something is coming to my mind called deliberate ignorance.
What I don't understand here is you're saying, gee, I don't
want to ask questions because I don't want to interject
politics into it. How would your asking a question, an
employee, an official of the Clinton Department of Justice,
inquiring into the status of an investigation of another
attorney in the Clinton Department of Justice politicize
something?
Mr. Raben. A political appointee confirmed by the Senate?
Mr. Barr. You just said a few moments ago that you don't
ask too many questions because you don't want to interject
politics into it.
Mr. Raben. You want to be very careful about ongoing
criminal investigations.
Mr. Barr. How could you possibly interject politics into
one Department of Justice official inquiring of another Justice
Department official?
Mr. Raben. A political appointee asking questions of a
career--of a line attorney, you don't think that has an
inherent----
Mr. Barr. I think there's a lot of politics with this
administration, but this is the first time that I've heard that
used as a defense to finding out information and transmitting
information to Congress by somebody within the administration.
I think it's thoroughly politicized.
Mr. Raben. Your characterization of a defense is
interesting. I didn't assert it as a defense to anything. I
said it's one of the considerations I have. I have to prepare
myself and do prepare myself and try to prepare myself for your
very valid questions.
Mr. Barr. He just asked a very valid question, and you
said, I don't know.
Mr. Raben. Right. I don't know.
Mr. Barr. Apparently you haven't--I think that was a very
relevant question, and certainly the answer to it is not going
to compromise any investigation, just asking is the
investigation still open.
Mr. Raben. I don't know. I can ask. If we can communicate
that to you, we will.
Mr. Barr. It requires you to ask a question, and you seem
to be even hesitant to ask questions of your people at the
Department of Justice. That's what I don't understand.
Mr. Raben. You've asked me to ask a question. I will ask
that question.
Mr. Burton. The chief counsel's time has expired. We have
two or three votes on the floor. We will stand in recess at the
fall of the gavel, at which time Mr. Waxman will have some
time.
[Recess.]
Mr. Burton. Mr. Raben, we apologize once again for the
timeframe. We had four votes on the House floor. We will now
yield to Mr. Waxman for his time.
Mr. Waxman. Thank you, Mr. Chairman.
Mr. Raben, the chairman has criticized the Justice
Department for not allowing our committee to talk to line
attorneys working in the Civil Division about the Alexander
case. That is the case brought by Judicial Watch concerning FBI
files that were provided to the White House. The Department has
responded quite reasonably, I believe, that it has a clear and
consistent policy of not providing the line attorneys to
Congress to answer questions about Department litigation,
particularly when the litigation is still ongoing.
Now, the committee could subpoena those same line attorneys
and force them to come up here and testify. The issue, however,
is not whether we have the power to do that, but whether that
would be a wise, prudent exercise of our subpoena power.
It may be helpful for us to consider an affidavit filed by
Robert J. Conrad, Jr., the head of the Department's Campaign
Finance Task Force in the Alexander case, and I'd ask unanimous
consent that this affidavit be part of the record.
Mr. Burton. Without objection.
Mr. Waxman. In that affidavit, signed on March 23 of this
year, Mr. Conrad notified the court that the task force had
launched a criminal investigation into the missing e-mails, and
that he asked a court to postpone any inquiry into the e-mails
until the task force had concluded its investigation. Mr.
Conrad stated emphatically that allowing civil attorneys to
investigate the e-mail problem, ``would interfere with and
potentially compromise the task force's own investigation of
the pending allegations.''
Now, the chairman has suggested that this was simply a ploy
to prevent the court from looking into the e-mail problem. He's
free to make whatever allegations he wants, but let me point
out that the Office of Independent Counsel Robert Ray supported
Mr. Conrad's request. Mr. Conrad says just that in paragraph 10
of his affidavit. Once more, the judge in Alexander, Royce
Lamberth, who is not known to be particularly partial to the
White House, agreed with Mr. Conrad's request, so apparently
the Department's task force, the Office of Independent Counsel,
and Judge Royce Lamberth all agree on one thing, that the
Department's Civil Division line attorneys should refrain from
investigating the e-mail matter further until a criminal
investigation is complete.
By the way, all three of these people, Mr. Conrad,
Independent Counsel Ray and Judge Lamberth, are all in on this
conspiracy to protect the White House. This is perhaps one of
the most remarkable conspiracies in the history of the
Republic.
Now, the chairman can subpoena these line attorneys and
insist that they discuss their e-mail investigations before
this committee, but if he does so, he is going against a
determination made by the Department's task force, the
independent counsel and Judge Lamberth that public testimony by
those same Civil Division attorneys about their e-mail
investigation would compromise the criminal investigation.
Given those circumstances, I think it would be inappropriate
and imprudent to demand that those line attorneys appear before
our committee to discuss their activities in the Alexander
case. I wanted to put that view on the record and have that out
there.
Chairman Burton recently subpoenaed the Department of
Justice for interview summaries. These are known as FBI 302s of
dozens of interviews concerning the DOJ's campaign finance
investigation. My understanding is the Department has given our
committee access to these FBI interview notes when the
Department considered its investigation to be closed. Is that
correct?
Mr. Raben. Yes.
Mr. Waxman. All of the interview summaries requested by
Chairman Burton involved investigation of Democrats. However, I
understand that the Justice Department's campaign finance
investigation has examined allegations relating to both
Democratic and Republican fundraising practices; is that
correct?
Mr. Raben. I don't have independent knowledge of that. I
have read accounts of those. I presume that to be true.
Mr. Waxman. Some investigations into Republican practices
are also closed investigations. If the committee requested
copies of the FBI interviews relating to these closed
investigations, is there any reason why the Department could
not provide copies of the interview notes?
Mr. Raben. Our policy for the provision of 302s has been
that the 302 should be a summary of a closed case, and it
should be a request of the committee, and then we would redact
for the normal 6(e) and privacy redactions. If there are any
others, I'll let you know, but that's the basic policy.
Mr. Waxman. There have been serious allegations relating to
the fundraising practices of former national committee head
Haley Barbour. In fact, some of the most serious allegations
involving foreign campaign money in the 1996 election concern
Haley Barbour and the National Policy Forum. According to these
allegations, Mr. Barbour solicited over $1 million in foreign
money from a Hong Kong businessman named Ambrous Young for an
entity called the National Policy Forum, which was an arm of
the Republican National Committee. These funds were then used
in 1994 congressional races around the country. According to
press accounts and other sources, individuals reportedly with
knowledge relevant to the Haley Barbour allegations include
Haley Barbour and Ambrous Tung Young, Benton Becker, Richard
Richards, Mark Braden, Steven Richards, David Norcross, Michael
Baroody, Fred Volcansek, Donald Fierce, Scott Reed, Daniel
Denning, Henry Barbour, Jo-Anne Coe, Kevin Kellum, John Bolton,
Jay Benning, Steven S. Walker, Jr., Ed Rogers and Kirk Blalock.
Mr. Raben, will you provide the committee with summaries of any
FBI and DOJ interviews with these individuals as well as any
other FBI and DOJ interviews with witnesses with knowledge
related to allegations that Republicans raised illegal
contributions?
Mr. Raben. We respond to these requests in a nonpartisan
way. At the request of the committee, we will provide 302s of
closed investigations redacted, as I said, for 6(e) and
privacy, yes, sir.
Mr. Waxman. Another area that I have repeatedly asked----
Mr. Raben. I should probably clarify that so as not to
mislead you. It needs to be at the request of the committee.
Mr. Waxman. If the committee has requested the 302
interviews from you of the closed cases for Democratic campaign
questions, then I see no reason why this committee shouldn't
also request of you the 302s of the interviews relating to
closed investigations of the Republican National Committee, Mr.
Haley Barbour, and those that I mentioned.
Mr. Chairman, I would like to ask you to join me in
requesting the DOJ provide the committee with these interview
summaries.
Mr. Burton. I just was made aware of the request by the
ranking minority member, and I haven't had a chance to check
with the parliamentarian about the justification of whether or
not we should go ahead with this, and I will be happy to do
that.
Mr. Waxman. Well, Mr. Chairman, it's not a question for the
parliamentarian. It's a question for this committee. This
committee has routinely asked for the 302s when there was an
investigation of Democratic potential finance abuses, and when
the Justice Department closed the cases, you asked that we get
those 302s because we wanted to evaluate how they've acted.
There have been investigations of Republicans, and these cases
have been closed, and we ought to get the 302s from those cases
as well. There's no difference, and there's no rationale that
would say that this committee would want to get the 302s for
what the campaign finance investigation did for some of these
Democratic accusations. When there are accusations against
Republicans, we ought to get those documents as well.
Mr. Raben, another area I repeatedly asked the committee to
investigate are allegations made by Texas businessman Peter
Cloeren regarding the 1996 campaign and Republican candidate
Brian Babin. According to these allegations, Majority Whip Tom
DeLay and Mr. Babin knowingly participated in a scheme to
funnel illegal conduit contributions to Mr. Babin's campaign
through vehicles that include an entity known as Triad
Management.
The DeLay-Babin allegations are also some of the most
serious allegations that have been made relating to conduit
contributions in the 1996 campaign. In this case there is
specific and credible evidence that a senior Republican Member
of Congress and a Republican congressional candidate knowingly
participated in a scheme to funnel illegal conduit
contributions. According to media accounts and information
gathered by my staff's investigation of these allegations,
individuals who purportedly have knowledge relevant to the
DeLay-Babin allegations include Peter Cloeren, Brian Babin,
Representative DeLay, Robert Mills, Paul Peveto, Mike Lucia,
Gail Averyt, Robert and Dawn Cone, Floyd and Anne Coates, Karen
Malenick and Walter Whetsell.
Mr. Raben, will you provide the committee the interview
summaries for any interview DOJ and FBI conducted of these and
other individuals regarding the DeLay-Babin allegations?
Mr. Raben. As I said, sir, our policy is at the request of
the committee, we will provide 302s for closed investigations
redacted for privacy in 6(e).
Mr. Waxman. Every time I've raised this issue for our
committee to investigate it, the chairman has said this issue
has been investigated by the Department of Justice, and they
closed the case. So I would like to ask the chairman if he
would join me in requesting that DOG provide the committee with
these summaries of any interviews with these individuals
regarding the DeLay-Babin allegations.
Mr. Raben. We've been called many things, sir, but not DOG.
Mr. Waxman. After a while even a J becomes a G with my
speech impediment. I'm hopeful.
Obviously discussions are going on that we can get these
documents. There's no reason not to. We ought to get the
documents from you for our committee to know what kind of job
Justice Department has been doing investigating allegations of
campaign finance abuses. And I would hope, Mr. Chairman, that
we can have an agreement on this. If not----
Mr. Burton. Give me a second.
I've talked to the staff about this. We have, according to
the staff, a large number of 302s outstanding, and if we agree
to this, the 302s relating to Peter Cloeren and Haley Barbour,
we want the Justice Department to understand that we want all
of the 302 outstanding document requests that we're talking
about given to us along with these, and if that's agreed to,
how many--we should get--we've actually asked for those
sometime back, but we should be getting those if not
simultaneously, before we get these, and if we get that
agreement from the Justice Department, I have no problem in
joining with you.
Mr. Waxman. I think the Justice Department ought to give us
all--our committee on both sides--the 302s of any cases that
are closed. That has been their policy. If you have requests
out, you ought to get your requests satisfied, and we ought to
get our requests satisfied, and we ought to have it for our
committee's documents so we can evaluate the job the Justice
Department has done in this regard. There is a distinction
between closed and open cases.
Mr. Burton. I understand. The open cases--the one thing
that concerns me about the 302s is we believe, Mr. Waxman, that
there's some politicization of the Justice Department, as you
know. You may not agree with that, we do, and as a result, we
believe that some of the cases may be kept open so we cannot
get the 302s. Now, that's one of the major concerns that we
have.
I don't think we have any big objection to you getting
these 302s, but what we want to do is get the 302s that we've
requested, and if we can get that, since we've requested it
some time ago, then I think we can work this out.
Mr. Waxman, we're talking not only about 302s, but other
subpoenaed documents we requested from the Justice Department
that the Justice Department has not given us. I mean, there's a
whole host of things, 302s, documents that we've requested, the
La Bella and Freeh memos which we have never received, and we
don't understand why in the world there should be a----
Mr. Waxman. If you'll excuse me, Mr. Raben. This committee
has asked for 302s from the Justice Department on cases that
have been closed. The Justice Department has furnished 302s on
some of those cases. The majority on the committee is asking
for additional 302s for closed cases. We're asking for
additional--we're asking for 302s on the cases that I
mentioned.
Now, the committee majority may be asking for other
documents as well that you may or may not be able to give them
for one reason or another. That you have to deal with the
committee majority on. But for the 302s on cases that are
closed, the Republicans ought to get what they've requested and
we ought to get what we've requested. And, Mr. Chairman, I
would like you to join with me in making that demand of the
Justice Department at this hearing.
Mr. Burton. The problem that we have--and I have no
objection, like I said, to getting these 302s. But when the 302
is requested--for instance, on former Congressman Solomon, that
302 was brought over to us in 1 day. Other 302s that we
requested have been languishing for months and months and we
have not received them. And so what we want to do is make sure
that the documents and the 302s that we requested we get
immediately. And we'll go along with the 302s that you request.
They can get them to you as quickly as they want to. But we
want the documents we've subpoenaed and the documents we
requested in the form of 302s as well.
Mr. Waxman. Let me join with you in making a joint request
of the Justice Department that you give us all the 302s that
we're asking for to which we're entitled and that they all come
in together. And that if the chairman is concerned that we'll
get ours and they won't get theirs, let's make a request that
you give them all to us as quickly as possible.
Mr. Burton. Why don't we do this? If you gentleman would
yield--if the gentleman would yield, there is no motion on the
floor. If the gentleman would yield, why don't we issue a
subpoena for the document--for the 302s that you have requested
and in that subpoena we will request or we will issue a
subpoena that includes the documents that we have requested and
the 302s that we have requested. That way, everything will be
in one subpoena. That way, you'll get what you want, and we'll
get what we want. Do you have any objection to that?
Mr. Waxman. Mr. Chairman, I think we have the makings of an
agreement. I just want to clarify that what we want in the
subpoena are the names that I read with regard to the Haley
Barbour allegations and the Cloeren allegations, all of those,
and you have the list we've given you, of those cases. And so
all of those names ought to be subpoenaed for 302s that the
Justice Department, FBI would have. If you want to add to that
subpoena other documents, I have no problem with that.
Mr. Burton. Well, what we want to do is make sure that all
documents that we have previously subpoenaed, all 302s that
we've requested and subpoenaed in addition to what you've
requested here today, all be given to us in a timely fashion
and that we don't want--and this has to be spelled out so
Justice understands it, we don't want the 302s for Republicans
given to the Democrat minority before we get the documents that
we've requested subpoenaed in the past. Simultaneously, that's
fine. But we don't want this favoritism shown one way or the
other.
Mr. Waxman. Mr. Chairman, that's agreeable with us.
Mr. Burton. How about in the subpoena it be specified that
all the documents be given jointly to both the majority and
minority staff simultaneously?
Mr. Waxman. That's reasonable.
Mr. Raben. Sir, I----
Mr. Burton. If you would just hold for just a second here.
Is there--I actually don't even need a motion, but if you care
to make a motion.
Mr. Waxman. Well, Mr. Chairman, but based on the
agreement----
Mr. Burton. They said a motion is not necessary.
Mr. Waxman. Based on our discussion here we have given and
we will submit on the record a list to you.
Mr. Burton. We have a list.
Mr. Waxman. You have the list.
Mr. Burton. The list is a matter of record. We will submit
the list for the record today so that there's no doubt today
but what it consists of. So it will be a part of the record. It
will be in there today.
Mr. Waxman. Mr. Chairman, I want to thank you very much for
this agreement. And we will go along with your request.
Mr. Burton. The subpoena in detail will be issued and we
will consult with both the majority and minority counsels to
make sure that correspondence going along with the subpoena is
detailed thoroughly so there's no misunderstanding about that.
Mr. Barr. I would like unanimous consent that the record
reflect that I object to this procedure.
Mr. Burton. The record shall reflect that.
Is there further discussion? Mr. Waxman you still have
time.
Mr. Waxman. I still have time, and I'll yield to my members
who want to ask Mr. Raben some questions. Otherwise, I think
members who have come----
Mr. Raben. May I, sir, say what I have been trying to say?
I would be eager to work with you as we have tried to work in
the past to be responsive to all of the requests. If I heard
part of your agreement to be that nothing would be produced
until everything that was producible was produced, if I heard
that to be the case, then I would need clarification on that.
That would be inconsistent with what I think is a relatively
healthy protocol that we have been able to work out with the
majority which prioritizes among the list of documents and 302s
they want.
Now, we have not, for a variety of production reasons, been
able to meet the priorities jot and tittle, but the priorities
have been useful, I understood, for both the committee and for
us. And I would hope that we would--among the cohort of
materials that you're going to identify in this subpoena that
we would hold open the opportunity to talk with you about that.
Mr. Waxman. Let me say on our part we'll talk to the
chairman about that and decide how we're going to proceed.
Mr. Burton. OK. The thing that Justice needs to know,
though, is that we are adamant about documents that have been
previously subpoenaed and requested that we have not received.
And if we're going to--as we've agreed to, we're going to ask
for these 302s in a subpoena for the Democrat minority. We want
to make sure that the Justice Department gives us the documents
that we are entitled to--legally entitled to that we have not
yet received in accordance with the subpoena. You will convey
that to them.
Do you have any more comments?
Mr. Waxman. I have some time if anybody wants me to yield.
If not, I yield back the time.
Mr. Burton. The gentleman yields back the balance of his
time.
Mr. Ose. Mr. Chairman, down here amongst the----
Mr. Burton. Mr. Ose.
Mr. Ose [continuing]. Kiddie table. Thank you. Did I
understand the comments from this gentleman to be that we would
not receive anything until we received everything?
Mr. Burton. It was my understanding--and, of course, this
is something that was sprung on us very late in the day here.
It was my understanding that there might be a rolling
production of these things, but the minority and majority
together would make sure that they were given in a timely
fashion and in a fair and equitable way.
Mr. Ose. Are we going to have a date certain, a date
certain by which these things will be produced?
Mr. Burton. We will put a date certain on the subpoena. I
think that's something that should be done. But it has to be in
a fairly reasonable period because we're talking about a
substantial number of 302s.
Is there further discussion? Any questions or any comments
from any members?
I apologize for hauling everybody in here, but we thought
we were going to have a procedural vote, and we didn't want it
to be biased.
Is there further discussion to come before the committee
today? Mr. Raben, did I get that right?
Mr. Raben. No, Raben.
Mr. Burton. I have a heck of a time with that. We would
like to meet with you or somebody from the Justice Department--
you have further questions, Mr. Barr?
Mr. Barr. I do Mr. Chairman.
Mr. Burton. Mr. Barr, you're recognized for 5 minutes.
Mr. Barr. Mr. Raben, with regard to your statement--I think
it was contained in your April 24th letter--that, ``no limits
were imposed on the subject matter of the Campaign Financing
Task Force's interviews of the President and Vice President.''
Where did that information come from?
Mr. Raben. Where did the information that no limits were
imposed come from?
Mr. Barr. Yes. What's your basis for making that statement?
Mr. Raben. That letter was written in part with help from
the Campaign Finance Task Force, and the basis for that
statement is that it's the truth. That--I'm sorry. Let me start
again. Let me start again.
We've had a subsequent correspondence after that letter.
When we got a letter from the chairman on April 28th pointing
out confusion about that statement, I agreed with the chairman
that the statement is inconsistent with the factual evidence
that we provided with that letter. That is letter--an exchange
of letters between I believe it's the Campaign Finance Task
Force and counsel to the President and Vice President in which
there appears to be an agreement on the subject matter for that
set of interviews.
When I looked at that in response to the chairman's
response to my letter, I agreed with him that that is a record
that seems to limit the questioning. I think the proper
statement--and had I to do it over again, I would have said
that there was--we have no information, we have no evidence of
an imposed limitation, that is, from outside the Campaign
Finance Task Force.
I have the Attorney General saying on the record in a
letter to the chairman March 21st that she has--``I have
repeatedly urged the task force to follow the evidence wherever
it leads.'' That's the closest sense of a statement from her
that I have with respect to her involvement. But what I should
have written and what is accurate is that we have no--I have no
evidence of an imposed limitation on the task force.
Mr. Barr. There were limitations on their questioning of
the President and Vice President.
Mr. Raben. The farthest I go on that is they seem to have
engaged in an agreement--a voluntary agreement with counsel
about the subject matter of that set of interviews, and we have
records of that which we provided. And if there are more, I've
asked people to redouble and see did we miss something given my
too small view of what records means in that case. And I am
told--I've never prosecuted, I know you have, but I have never
prosecuted--that it is not uncommon for prosecutors to consult
with counsel for witnesses or defense about the range of
questioning that might come. But, as I say, I have no sense
that there was an imposed limitation from elsewhere in the
department or elsewhere.
Mr. Barr. For example, there were no--at no point has the
President been asked a single question about James Riady, John
Huang or Charlie Trie.
Mr. Raben. I don't know that I know that.
Mr. Barr. That wasn't a question. It's a statement. The
President was not asked. Was this just----
Mr. Raben. The President wasn't asked in certain interviews
that you've seen the 302s from.
Mr. Barr. That is true, too.
Mr. Raben. But the President and the Vice President have
been interviewed a total of seven times, and I don't know what
the subject matter was of the last sequence.
Mr. Barr. Charles La Bella has also said that it was the
Attorney General's decision that the interviews would be--I
think the word was ``focused,'' which means limited.
Mr. Raben. Yeah. I don't know what he was referring to. He
may--I read that as well. He may have been referring to the
voluntary agreements that were entered into by the Campaign
Finance Task Force and counsel for the President in those
interviews. I don't know. I know that the President--that the
Attorney General has written to you, to the committee, ``I have
repeatedly urged the task force to follow the evidence wherever
it leads.''
Mr. Barr. It may not be uncommon for prosecutors and
attorneys for defendants to--or for deponents to have an
agreement beforehand about certain areas, although it would be
uncommon for prosecutors to simply not go into fruitful areas
of inquiry. That certainly is not the case.
It is also very common that if there is an agreement
between a prosecutor and the attorneys for a witness to limit
the area, the prosecutor is going to get something in return
for it. I mean, good prosecutors don't just go in and say, oh,
please limit the areas that I can question you on. They want to
get something in return, and they then reduce that to writing.
Were either of those things done in this case when the
decisions were made, as they apparently were, to limit or
focus--whatever word you want to use--or agree to go into only
certain areas? One, what did the prosecutors get in return for
it, that concession on their part? Because that is a concession
on the part of a prosecutor not to go into certain areas of
questioning. Was it reduced to writing?
Mr. Raben. Two parts. You have prosecuted. I have not. I
can't speak to the strategy which sounds----
Mr. Barr. I'm just asking two factual questions.
Mr. Raben. OK. I may have misunderstood your question. But
your premise was that give and take, that it's a bargain----
Mr. Barr. You don't have to respond to the premise. That's
my premise. What I would appreciate you responding to is the
two questions.
Mr. Raben. OK. I only remember one. I have one question.
You have to tell me what the other is. The question that I know
is, that I hear you asking, is there documentation or evidence
of such an agreement. The only thing which I am aware is what
we provided, the exchange of letters that seems to define the
categories for that interview.
Mr. Barr. Those letters we have. There are no other
letters.
Mr. Raben. Yes. Last night--last night, after rereading the
chairman's letter of April 28th--and, as I said, I agreed with
him, and I have asked staff and relevant Campaign Finance Task
Force people to look again and see if we underinterpreted the
request the first time around.
Mr. Barr. Will you be able--we have another hearing--
another day of hearing on this subject matter tomorrow.
Mr. Burton. We do.
Mr. Barr. Could the chairman direct that we receive a
final, definitive, absolute answer to that question tomorrow at
least?
Mr. Raben. Am I directed?
Mr. Burton. I can make that request. Is there a ball bat in
the House? Maybe I can make sure I get it.
Mr. Raben. Is there a what in the House?
Mr. Burton. The request that he's talking about.
Mr. Raben. I just didn't hear what you said, I'm sorry.
I'll direct it ASAP. I think it's very important.
Mr. Burton. We would like to have it by tomorrow.
Mr. Raben. I hear you.
Mr. Barr. There really shouldn't be any problem because,
presumably, there isn't anything because they have already been
tasked with----
Mr. Raben. I hear you. We'll look.
Mr. Barr. The other part to my question, premised on the
same basis, is what did the government prosecutors get in
return for conceding not to go into certain areas of inquiry
with these two witnesses?
Mr. Raben. I have no knowledge of that. I have no idea that
anything of the sort occurred. I have no knowledge.
Mr. Barr. Wouldn't it make sense? Wouldn't it be common
sense that if a prosecutor is going to go into an interview
with a witness and not go into fruitful areas of inquiry, that
they at least are getting something in return unless all three
of the parties, the prosecutor, the government, the witness's
lawyers and the witness are colluding, which may be what
happened here, that the three of them got together and said we
are--we don't want these areas gone into. The Department of
Justice says, yes, sir, absolutely, we will not go into these
areas, because you're the President or your attorneys don't
want us to. That's certainly possible, is it not?
Mr. Raben. I hear you, sir. To me, it's a speciality. It's
not about common sense. I don't prosecute.
Mr. Burton. Does the gentleman have further questions?
Mr. Barr. I have no idea what he just said. There's no
common sense in----
Mr. Raben. You asked me, sir, was it common sense that
there would be a bargain like that. I don't think that's a
question of common sense. I think that's a question of
professionalism and strategy about prosecution, and I don't do
that.
Mr. Barr. Professionalism, one would hope, is common
sensical. Used to be.
Mr. Burton. Gentleman's time has expired.
Are there further questions by any member of the committee?
If not, this has been a very interesting day. I hope
tomorrow is as interesting but not as contentious. We stand
adjourned. Thank you very much.
[Whereupon, at 5:10 p.m., the committee was adjourned.]
WHITE HOUSE E-MAILS: MISMANAGEMENT OF SUBPOENAED RECORDS--DAY FOUR
----------
THURSDAY, MAY 4, 2000
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:10 a.m., in
room 2154, Rayburn House Office Building, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Morella, Shays, Ros-
Lehtinen, Barr, Hutchinson, Terry, Chenoweth-Hage, Waxman,
Lantos, Kanjorski, Norton, Cummings, Kucinich, and Ford.
Staff present: Kevin Binger, staff director; James C.
Wilson, chief counsel; David A. Kass, deputy counsel and
parliamentarian; Mark Corallo, director of communications;
Pablo Carrillo and M. Scott Billingsley, counsels; Jason Foster
and Kimberly A. Reed, investigative counsels; Kristi Remington,
senior counsel; Robert Briggs, deputy chief clerk; Michael
Canty, legislative adie; Leneal Scott, computer systems
manager; Lisa Smith Arafune, chief clerk; Maria Tamburri,
assistant to chief counsel; Corinne Zaccagnini, systems
administrator; Phil Schiliro, minority staff director; Phil
Barnett, minority chief counsel; Kenneth Ballen, minority chief
investigative counsel; Kristin Amerling, minority deputy chief
counsel; Paul Weinberger, minority counsel; Ellen Rayner,
minority chief Clerk; Jean Gosa and Earley Green, minority
assistant clerks; and Andrew Su, minority research assistant.
Mr. Burton. The committee will come to order.
A quorum being present, the Committee on Government Reform
will now sit in session.
I ask unanimous consent that all Members' and witnesses'
written opening statements be included in the record; and,
without objection, so ordered.
I ask unanimous consent that all articles, exhibits and
extraneous or tabular material referred to be included in the
record. Without objection, so ordered.
I also ask unanimous consent that questioning in this
matter proceed under clause 2(j)(2) of House rule 11 and
committee rule 14 in which the chairman and ranking minority
member allocate time to members of the committee as they deem
appropriate for extended questioning, not to exceed 60 minutes
equally divided between the majority and minority. Without
objection, so ordered.
I also ask unanimous consent that questioning in the matter
under consideration proceed under clause 2(j)(2) of House rule
11 and committee rule 14 in which the chairman and ranking
minority member allocate time to committee counsel as they deem
appropriate for extended questioning, not to exceed 60 minutes
divided equally between the majority and minority. Without
objection, so ordered.
Today marks day 4 of our hearings into the White House e-
mail matter. Yesterday, we focused on what was happening in the
Office of Administration. I made four general points about what
we learned. I think they bear repeating.
First, more evidence is emerging that the Northrop Grumman
employees who discovered the problem were threatened by White
House staff and ordered to keep their problem secret.
Second, it's clear that technical people in the Office of
Administration were trying to get the problem fixed. But months
and months were going by, and they couldn't get anyone at a
higher level to approve it.
Third, there was an appropriations committee hearing in
March 1999. There was discussion going back and forth within
the Office of Administration about whether to tell the
Appropriations Committee about the e-mail problem, but the
committee was never informed.
Fourth, we have been informed that there was a second
briefing of the White House counsel's office about the e-mail
problem. The first briefing happened in June 1998. The second
briefing happened in the spring of 1999. But this committee was
never informed that our subpoenas had not been complied with
until we read about it in the newspaper in February 2000 and
started our own investigation.
I think it's worth restating why we're here today and why
we're conducting this investigation.
There was a very serious illegal fundraising scandal
involving the Clinton administration. Several million dollars
from foreign sources were funneled into the DNC. The head of
China's military intelligence agency gave Johnny Chung $300,000
to give to the President's campaign. Charlie Trie, a friend of
the President's, brought hundreds of thousands of dollars from
a Buddhist sect in Taiwan to the Presidents' legal defense
fund. More than a 120 people have either taken the fifth
amendment or fled the country to avoid questioning.
This was a serious problem. This committee started an
investigation. We issued several subpoenas to the White House
for documents. We struggled for a long time to get those
documents, and I'll talk about that more in a minute.
Eventually, we got a certification from the White House that we
had been given all the documents to which we were entitled.
Now in June 1998 the White House discovered that it had a
serious e-mail problem. Two and a half years of incoming e-
mails weren't put into the ARMS system. That means 2\1/2\ years
of incoming e-mails weren't searched to see if they had to be
produced to the Congress or the Justice Department or the
independent counsels that subpoenaed documents.
This was not a trivial number of documents. It was 246,000
plus e-mails. Now, if you receive a lawful subpoena and you're
in possession of relevant documents that haven't been turned
over, you have a legal obligation to tell the investigating
agency and you have an obligation to produce the documents. If
you don't do it, it's called obstruction of justice.
We were not informed in 1998. Neither was the Justice
Department and neither were the independent counsels.
We weren't informed in 1999. Neither was the Justice
Department or the independent counsels.
We weren't informed until March 2000. That's 1 year and 9
months after the White House counsel's office was briefed. And
I want everyone to understand how we were informed, because we
didn't just get a call out of the blue. Here's how it happened:
On February 14th, the e-mail problem was reported on the
front page of the Washington Times.
On March 7th, my staff interviewed the Northrop Grumman
contractors.
On March 8th, I wrote to the White House counsel and the
Attorney General. And it wasn't until I interviewed those
contractors and wrote those letters that anything happened.
On March 10th, the Justice Department called the White
House to ask for an explanation.
On March 15th, the White House counsel's office provided an
explanation to the independent counsel.
On March 20th, the White House gave the Justice Department
a written explanation.
So, to summarize, in coming e-mails from 2\1/2\ years were
kept under wraps. The White House knew about it for almost 2
years, but they didn't inform the Justice Department until we
started looking into it. And the justice Department didn't
start an investigation until they realized that we were looking
into it. And lawyers within the Justice Department's Civil
Division had known about this for a long time.
That's a shameful record. Time and time again, we've seen a
very cozy relationship between this Justice Department and this
White House. That's why the Attorney General should have
appointed an independent counsel for the fundraising
investigation 2 or 3 years ago. That's why she should appoint a
special counsel for the e-mail investigation today.
Today we're going to focus on the White House counsel's
office. The reason is simple. The technicians in the Office of
Administration are not responsible for complying with
subpoenas. The White House counsel is.
So the question is this: What did the counsel's office know
and when did they know it?
The counsel at the time was Charles Ruff. We know that on
June 18, 1998, the day after the problem was discovered, he got
a detailed memo. He was briefed on the entire situation.
According to his calendar, the deputy counsel, Cheryl Mills,
was with him.
So far, we're being told that there was a big disconnect.
The people at the counsel's office just didn't get it. It was
too technical for them.
Yesterday, we were told that there was a second briefing.
Mr. Lyle told us that in the spring of 1999 the so-called
letter D problem was discovered. He told his boss, Mr. Lindsay.
Mr. Lindsay told Mr. Lyle that he briefed the counsel's office.
Mr. Lindsay is here today, and we're going to ask him who he
talked to and what he told them.
So was there a second disconnect? Did the counsel's office
still not get it or did they understand it and just decided not
to do anything about it? Mr. Ruff and Ms. Mills are here today,
and we'll ask them.
Mr. Ruff and Ms. Mills have been here before. They both
testified in the fall of 1997, and I'm sorry to say that we
haven't had much in the way of cooperation from them over the
years.
We almost had to hold Mr. Ruff in contempt to get him to
turn over any documents to us in 1997. We discovered that
hundreds of videotapes of the President at fundraisers had been
withheld from us, and we were told that the counsel's office
didn't realize that they were there. But Ms. Mills had written
memos on the subject to the White House staff.
Ms. Mills withheld important documents from the White House
data base investigation in her office. Ms. Mills refused to
cooperate with this investigation. We called her three times to
ask for an interview, and she didn't return our phone calls. We
sent her a letter, and she said she was too busy to give us an
interview. I told her that we would subpoena her, and she said
that she was busy. We were able to subpoena her, but since she
has refused to cooperate we have not been able to speak to her
before today. Her lack of cooperation really makes me ask what
she's trying to hide.
And now we have 246,000 e-mails that were never searched.
If something like this happens once, you might believe it's
a mistake. If it happens twice, you get a lot more skeptical.
If it happens over and over again, it doesn't leave much doubt
about what's going on.
I think Harold Ickes summed it up best. He was quoted in a
new book. He said, the White House has a foot-dragging, screw
you attitude. And I'm being generous with that terminology.
That's the PG version of what he said.
So we're going to listen to what Mr. Ruff and Ms. Mills
have to say today, but, given the past track record, they've
got an uphill road to climb to convince us that everything was
on the up and up.
On our second panel we have invited White House Counsel
Beth Nolan and Associate Counsel Dimitri Nionakis to testify.
Last fall, Mr. Nionakis was handling document production
for our Waco and FALN subpoenas. He sent us several letters
assuring us that all documents were being searched. He told us
specifically that archived e-mails were being searched. He
never said anything about 2\1/2\ years of incoming e-mails that
were not being searched.
Did Mr. Nionakis understand the e-mail problem? We'll ask
him that question today.
Getting him here wasn't easy. He really resisted coming.
Yesterday, he disappeared when we tried to serve him with a
subpoena. For the first time ever, I think, we had to ask the
U.S. Marshal's Office to serve a subpoena to the White House.
Instead of tracking down fugitives yesterday afternoon, the
Marshals had to spend the afternoon tracking down a White House
lawyer.
Last night, my staff asked Beth Nolan if she had instructed
Mr. Nionakis not to accept service of the subpoena; and she
said, ``I will not answer that question.'' They asked her if he
had gone to work yesterday or if he was avoiding the Marshals.
She said, ``I will not answer that question.''
I think the American people have a right to know what
happened. What happened yesterday was not what I call a bright
new beginning in our relationship with the White House. Instead
it was more of the same.
However, we've reached an agreement. Mr. Nionakis is going
to testify alongside the chief counsel for the President, Ms.
Nolan, today.
I want to get on with the questioning, so I'll stop here. I
think we have a full day ahead of us. I would like to get
things moving, and I now yield to Mr. Waxman.
Mr. Waxman. Mr. Chairman, I am looking forward to the
testimony we're going to receive today so I have no formal
statement. But I do want to point out for the record what your
statement that was just delivered is filled with inaccuracies
and omissions and creates, unfortunately, a distorted picture
of the events.
The second thing I want to point out is that we've all
heard about frivolous lawsuits, and no one would want to defend
a frivolous lawsuit, but this committee seems to be in the
habit of making frivolous accusations and even referrals to the
Justice Department against people who have chosen to serve the
public and accuse them of criminal action, perjury, obstruction
of justice, whatever.
One of our witnesses, Cheryl Mills, is no longer working
for the government. She worked at the White House with great
distinction. She's now in the private sector. And this
committee referred to the Justice Department an accusation
against her at one time that because they didn't like her
statements, that she had committed perjury. Well, she was
exonerated from that charge. It besmirched her reputation when
those kinds of accusations were made. I think an apology is due
her, and I would hope the committee would find it in its sense
of decency to apologize to her as well.
She is here today even though she asked, because she's in
the private sector, that her schedule be accommodated, but this
committee was not willing to accommodate her schedule. I think
that's unfortunate.
Mr. Ruff is no longer with the government either. He served
with great distinction as the White House counsel. He has an
unsurpassed reputation for integrity and honesty and legal
ability. He is here at the request of the committee to answer
questions.
And the issue before us is one of whether there was any
intentional withholding of information about e-mails that
because of technical snafus didn't get picked up in a
centralized system, whether some of those e-mails were withheld
from the appropriate committees of Congress and other
investigators, whether they were actually withheld, and if they
were withheld, whether it was an intentional act.
These are questions worth pursuing. We pursued it over and
over and over again. This is the fourth or fifth hearing we've
had on this subject. I don't think that we've established to
this point evidence of any wrongdoing or any kind of
conspiracy, even though the majority has tried to paint that
picture.
I just point out this is probably one of the few committees
that has in its room a clock that is never right. I don't know
what that tells us. But the clock that's running evidently in
this room appears to not be an hour behind or to have failed to
change for daylight savings time or whatever. It just is
incorrect. And it is fitting in this room, where so many of the
statements are often incorrect, that we're sitting in this
hearing today.
I look forward to the testimony. I appreciate these
witnesses being here. Mr. Lindsay, who's also testifying,
already testified before us for many, many hours. I don't know
what else there is to ask him. But I'm sure there will be
questions, and he was very forthright in his responses last
time. I expect him and the other witnesses to be so today. I
look forward to their testimony.
Mr. Burton. Would you please rise so you can be sworn.
[Witnesses sworn.]
Mr. Burton. Do any of you have opening statements you would
like to make?
STATEMENT OF CHARLES RUFF
Mr. Ruff. Mr. Chairman, thank you. I do not have a formal
opening statement, but I do wish briefly, if I may, to respond
to one theme that you have sounded not only today but in prior
hearings.
Because, independent of the e-mail issue that we will be
talking about today, I fear that the record reflects a simply
incorrect version of historical events. You and I have over the
course of my tenure at the White House had I think not
necessarily a fully friendly but always an open and candid
relationship in which you have been very direct with me and I
have been very direct with you. I intend to do the same today,
as I'm sure you will.
The notion that somehow the White House was less than
forthcoming or cooperative with this committee is I think a
mischaracterization of the White House and the White House
counsel's office. I no longer have any official role nor need
to defend the institution of the White House counsel's office,
but to the extent that it suggested that either somehow the
threat of contempt, which was very pointed and very real to me,
was necessary to extract missing documents from the White House
or that we were somehow laggard in our efforts to produce
documents for this committee over the years is simply
incorrect.
As the Chair knows, our battles in the spring of 1997 over
certain claims of possible privilege involved a full disclosure
to the committee of what those documents were, a relatively
small handful of them ultimately turned over in the face I
admit of your contempt threat. But as you know from having seen
those documents, there was absolutely nothing of any substance
in them, and they were entirely legitimate in our efforts to
bring them under what we understood them to be, equally
legitimate claims of important constitutional privilege. Any
suggestion that somehow the White House counsel's office during
my tenure and Ms. Mills' tenure was anything other than
forthcoming to the full extent of our knowledge, Mr. Chairman,
I submit with all respect, is simply, flat-out wrong.
Mr. Burton. Ms. Mills.
STATEMENT OF CHERYL MILLS
Ms. Mills. Thank you. Mr. Chairman, Representative Waxman,
members of the Committee on Government Reform, my name is
Cheryl Mills. For almost 7 years I served in the White House
counsel's office under President's Clinton. During my tenure, I
served first as an associate counsel and later as deputy
counsel.
When I arrived, I was 27 years old. I was 34 when I left
last October. I came into government because I believed that
the opportunity to serve this country was a valuable one. I
believed that giving of my time, my energy and even my soul to
try to make a difference was important. I believed that the
gift of one's labor, the gift of one's love for this country
was one of the purer things that I, like other young people,
had to give.
When I left, it had become hard for me to believe anymore.
I left increasingly cynical about Congress' commitment to
improving the lives of Americans. I left deeply troubled by the
culture of partisanship in Washington that with each passing
day was threatening the very essence of what is good and what
is right and what is joyful about public service. When I left,
it was no longer obvious to me that serving in government with
a Congress that was committed to oversight by investigation was
worth the high toll that it exacted.
And the greatness of that injustice is not in its harm to
me. I am only one person. Rather, it is in the damage that it
does to all the ideals of the young people who decide never to
serve, the young people who decide that no one should have to
love their country enough to have their integrity and their
service and their commitment to doing the best they can
impugned by some who sits in this body, the young people who
decide that their desire to serve their country and a President
is not outweighed by the risk to their reputation, their
livelihood and their family, the young people who decide that
too many who toil in this body have forgotten that their
exalted positions are but loaned to them by the young on the
understanding that they will seek what is best for our country
and not what is least.
I left because I knew that time and distance would allow me
to see again the many Members who serve honorably in Congress
every day, Members who choose to work hard for their
constituents on issues that will enrich their lives and men and
women who get up each day not thinking about how they can bring
someone down but how they can lift us all up.
Mr. Chairman, I left because I was tired of playing a role
in dramas like today, when so many issues that mattered to me
were not addressed. You have held 4 days of hearings and spent
countless more dollars on depositions and document productions
but yet you have not chosen to use your oversight authority to
hold 1 day's worth of hearings about a man who was shot dead by
an undercover New York police officer while he was getting into
a cab after refusing to buy drugs from that officer; not 1
day's worth of hearings about any of the 67 cases and counting
that have been overturned because officers in the Los Angeles
Police Department planted guns and drugs to frame people, shot
an unarmed man, and quite possibly murdered another with no
criminal record, by shooting him 10 times; not 1 day's hearing
about why African American youths charged with drug offenses
are 48 times more likely than white youths to be sentenced to
prison.
Not to mention all the other ways there which you could
spend your time making the lives of the individuals you serve
better, as opposed to tearing down the staff of a President
with whose vision and policies you disagree. You could choose
from a myriad of issue, from health care to prescription drug
benefits to family medical leave, education reform, Social
Security, judicial reform. Nothing you discover here today will
feed one person, give shelter to someone who is homeless,
educate one child, provide health care for one family or
justice to one African American or Hispanic juvenile. You could
do so much to transform our country, but you are instead
choosing to use your great authority and resources only to
address e-mails.
The energy your staff will spend pouring over hearing
transcripts to create a perjury referral for you to send to the
Justice Department could be spent pouring over the latest
statistics in the Justice Department's report on unequal
treatment African American and Hispanic youths receive before
the law. And the resources that the Justice Department will
expend reviewing your allegations causing those public servants
and their families considerable pain could instead be spent
investigating why America's justice system unfortunately is
still not yet blind.
I know I say all this at some personal peril as my words
today undoubtedly will make me an even greater target of your
ire. But when I received your letter last week about attending
this hearing, despite having advised you of my long scheduled
commitments, a letter in which you simply dismissed my
engagements, stating that you could not indulge my schedule, I
got tired and angry all over again.
And if I had not had a chance to attend a dinner that night
in honor of the Robert F. Kennedy Memorial Foundation I
probably would still be angry. Because I would not have had the
chance to have my faith renewed by the example of what other
men with your power have chosen to do throughout history to
enhance the lives of others. I would not have been reminded of
Robert Kennedy's work on behalf of issues like race and justice
and poverty and how they embody the true spirit of his greatest
words. ``It is from numberless diverse acts of courage and
belief that history is shaped. Each time a man stands up for an
ideal or acts to improve the lot of others or strikes out
against injustice, he sends forth a tiny ripple of hope, and
crossing each other from a million different centers of energy
and daring those ripples build a current which can sweep down
the mightiest walls of oppression and resistance.''
Had I not gone to that dinner that night I would not have
been reminded that the smallness of any person can never
overshadow the greatness of those whose acts are bigger than
life. I would not have been reminded that today, too, will pass
and that we who love our government are strong enough and not
too weary. We can outlast a culture of investigation and
intimidation and idleness on behalf of issues that could truly
improve the lives of Americans.
Mr. Chairman, I believe in your humanity and in that of
your staff, that you, each, have good and bad days, make good
and bad judgments, render good and bad decisions. Won't you
believe in the humanity of others with whom you disagree? Won't
you believe that, as with your mistakes, they too can make
mistakes that are not conspiratorial? That they too can make a
bad judgment without that judgment being pernicious? That they
too can do their best each day and expect more than a biased
shake or a perjury referral from this committee? That they too
can be human, without this body using its awesome power to
exploit their humanity for political gain? Can Tony Barry, a
man who served his government since 1992, expect that?
I give my last quotation to Robert Kennedy, because to me
it is particularly fitting today. He said, ``the Constitution
protects wisdom and ignorance, compassion and selfishness
alike.'' But that dissent which consists simply of sporadic and
dramatic acts sustained by neither continuing labor or
research, that dissent which seeks to demolish while lacking
both the desire and the direction for rebuilding, that dissent
which, contemptuously or out of laziness, casts aside the
practical weapons and instruments of change and progress, that
kind of dissent is merely self indulgence. It is satisfying,
perhaps, only to those who make it.
I decided that smallness in government can't win and that
it will not be the weapon to defeat my ideals, that it is not
powerful enough to alter my belief in the good that so many
Members who serve in this body do. I decided that, in the final
analysis, I am not too tired to stand up for all of those who
believe, even through the drama, that public service is worth
it. Thank you.
Mr. Burton. Thank you, Ms. Mills.
Mr. Lindsay.
Mr. Lindsay. I believe that my prior statement from the
last hearing will suffice. I don't have any opening statement.
Mr. Burton. We'll go directly to the questions. Let me
start by making a little comment.
First of all, I thought that was a very eloquent speech
that you made, Ms. Mills. It was very good, as you can see by
the reaction from members of the audience and the committee.
The fact of the matter is, though, that we have been
investigating or conducting a number of investigations for
about 4 or 5 years now. Millions of dollars in illegal campaign
contributions have come in from abroad; 120 people plus have
fled the country or taken the fifth amendment. We have tried to
get the White House to work with us to get to the bottom of all
this. We have been blocked again and again and again. And I'll
comment on what Mr. Ruff said in just a moment.
And so the purpose of the hearing is not to try to
intimidate or bludgeon or hurt anybody but to get the facts out
for the American people. Lincoln said, ``let the people know
the facts and the country will be saved.'' And, you know, I
think that the facts will speak for themselves.
The White House counsel's office knew some time ago, not
once but twice, about the e-mail problem. They knew that
subpoenas had been issued by a number of independent counsels,
this committee, other committees and the Justice Department for
documents. And those documents could have been and may be in
some of those e-mails. There's 240-some thousand of them. And
yet the White House chose not to tell the appropriations
committee about them, not to ask for resources for that or
employees to help go through that mountain of e-mails to comply
with the subpoenas which they're going to have to do anyhow,
but they chose to either ignore it or to hide it. That's what
we want to find out. We're not here to try to intimidate
anybody but to find out where the responsibility lies and why
those subpoenas were not complied with as is required by law.
Now, Mr. Ruff, I have here before me the whole litany of
correspondence which I will be very happy to give to you so you
can review what happened. But back when you came to my office
years ago in 1997, we asked for documents you said that the
President was not going to claim executive privilege. Then
later you said you were considering privilege, and we said that
the executive was not entitled to that privilege. We contacted
you about that. We sent you subpoenas, you did not comply, and
then we started to move for contempt, and then you did comply.
I have a letter here, Mr. Ruff, that's from you that says
that you have, to the best of your knowledge, given us
everything. Four months later, we got another 10 or 12 boxes of
documents, many of those on a Friday night and a lot of it was
released on Saturday morning to the papers; and they blamed us
for leaking that to the media when my office had not even
opened those boxes until Monday.
So, you know, it's a little disingenuous for you to say
that you were cooperative with us from day 1 when you and I
both know, Mr. Ruff, that that's not accurate.
Now let's get to the questions.
Mr. Ford. Mr. Chairman, would you yield for one moment,
sir, before you get to your questions?
Mr. Burton. I think Mr. Waxman was going to have 30
minutes. I would prefer that you ask Mr. Waxman for the time
because we have a full litany of questions.
Mr. Ford. It's just a unanimous consent request, if you
don't mind, sir.
Mr. Burton. Stop the clock.
Mr. Ford. Just in light of what has been said this morning,
I was wondering if I could, with a unanimous consent request,
enter into the record what Senator Hagel said yesterday
according to yesterday's the Hill newspaper where he criticized
his fellow Republicans for allowing their deep-seated
suspicions of Clinton to derail their own political agenda. And
I think it reads, GOP's Distrust of Clinton Drives Congress's
Agenda. Just in light of what has been said this morning, if
the committee does not object.
Mr. Burton. Without objection, so ordered.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T9621.615
[GRAPHIC] [TIFF OMITTED] T9621.616
Mr. Burton. Mr. Lindsay, it was in June 1998 when you
learned about the Mail2 problem, wasn't it?
Mr. Lindsay. Yes, sir.
Mr. Burton. After you learned about the problem, you took
steps to determine the nature of the problem and then assisted
in the appropriation of exhibit 1--do we have Exhibit 1 to put
on the screen? exhibit 1. If not, you have it before you, which
is a memo from Virginia Apuzzo to John Podesta explaining the
problem--didn't you?
Mr. Lindsay. That's what I testified to last week.
Mr. Burton. On June 19, 1998, you met with Charles Ruff,
the chief counsel, to inform him of the problem, didn't you?
Mr. Lindsay. That's what I testified to at the last
session.
Mr. Burton. Was Cheryl Mills present at that meeting?
Mr. Lindsay. I have no recollection of ever discussing this
matter at all with Ms. Mills.
Mr. Burton. Was Cheryl Mills present at the meeting?
Mr. Lindsay. Not to my recollection.
Mr. Burton. You don't recall whether or not she was at the
meeting.
Mr. Lindsay. No, I do not, sir.
Mr. Burton. Well, exhibit 48, Mr. Ruff's calendar,
indicates that she was present. Now she's one of the highest-
ranking people in the White House counsel's office, and you
don't remember whether she was there.
[Exhibit 48 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.311
[GRAPHIC] [TIFF OMITTED] T9621.312
[GRAPHIC] [TIFF OMITTED] T9621.313
Mr. Lindsay. If your question, sir--if that reference
refreshes my recollection as to whether or not Miss Mills was
there, my answer to that question would be, no, it does not.
Mr. Burton. You don't remember. And you don't remember the
phone call that you made also and talked with Ms. Crabtree,
then Ms. Crabtree, about with the people from the Northrop
Grumman corporation present either. You don't remember that
either.
Mr. Lindsay. No, I don't. As I testified before, sir, there
are many, many different conversations that I had with lots of
people.
Mr. Burton. I understand you just don't remember. Did you
state anything to the effect that the technical problem was
limited only to Monica Lewinsky's e-mails?
Mr. Lindsay. I don't have a specific recollection of that
other than what is contained in the memorandum, and I think
that that document speaks for itself.
Mr. Burton. Did anyone at the meeting indicate that they
didn't understand what you were talking about?
Mr. Lindsay. I don't have any recollection of the reaction
of what people said to what I said. All I was focused on was
conveying the information. I believe that the information
contained in the document contains at least the sum and
substance and speaks for itself for what I was trying to
convey.
Mr. Burton. Mr. Ruff, your meeting with Mr. Lindsay on June
19, 1998, was that the first time that you were made aware or
exposed to the Mail2 problem?
Mr. Ruff. I can't recall, Mr. Chairman, whether I received
the Apuzzo memo contemporaneously or shortly before the
meeting, but it's my best recollection that the meeting was the
first occasion on which I heard of it.
Mr. Burton. Do you recall what Mr. Lindsay told you about
the problem?
Mr. Ruff. Only in very general terms, Mr. Chairman.
Mr. Burton. You do recall that Mr. Lindsay told you there
was a failure with the ARMS system that disabled ARMS from
capturing incoming e-mail.
Mr. Ruff. I have that general recollection, yes, sir.
Mr. Burton. Based on the information that Mr. Lindsay gave
you, were you concerned that the problem might have affected
the White House's ability to comply with outstanding subpoenas?
Mr. Ruff. I was, yes.
Mr. Burton. You were aware of that.
Ms. Mills, were you at that meeting?
Ms. Mills. I don't believe I was.
Mr. Burton. You don't believe you were.
Ms. Mills. No, because my first recollection of learning of
this matter was from Mr. Ruff.
Mr. Burton. So you say you don't recall attending or you
didn't attend that meeting.
Mr. Hill. I don't believe I did attend the meeting.
Mr. Burton. Categorically, can you say you did not?
Ms. Mills. That's my best recollection.
Mr. Burton. So what you're saying, your best recollection
is you really don't remember whether you attended the meeting
or not.
Ms. Mills. My best recollection is that I did not attend
the meeting.
Mr. Burton. But you're not sure.
Ms. Mills. Well, Mr. Chairman, I'm under oath, and I'm
familiar with the practices in this room, so I'm trying to be
as honest and truthful as I can, and so I want to make sure
that I am giving you accurate information. I don't believe I
attended the meeting. That's my best recollection, because I
recall learning of this matter from Mr. Ruff.
Mr. Burton. Did you get a copy of the Podesta memo?
Ms. Mills. I did not.
Mr. Burton. What did Mr. Ruff tell you about the problem
before the meeting?
Ms. Mills. I don't recall having a discussion with Mr. Ruff
about the problem before the meeting.
Mr. Burton. What is your recollection of Mr. Lindsay's
briefing about the e-mail problem?
Ms. Mills. I don't know what Mr. Lindsay's briefing was. I
spoke with Mr. Ruff after his meeting with Mr. Lindsay.
Mr. Burton. Mr. Ruff, what did you do to handle the
problem?
Mr. Ruff. Mr. Chairman, my recollection is--and I will tell
you that it is not a detailed recollection--is that, following
the meeting with Mr. Lindsay, I did discuss the matter with Ms.
Mills. I believe that the next steps--and I cannot tell the
committee exactly what those steps were--was to make further
inquiry into whether or not the problem that Mr. Lindsay
described did indeed have an adverse affect on our collection
and production of documents.
Mr. Burton. Did you tell Ms. Mills that she needed to make
sure the problem didn't affect both past document productions
and future searches?
Mr. Ruff. I do not recall the specifics of my conversation
with Ms. Mills. I think it's fair to say that my immediate
focus was on whether we had adequately complied with the
outstanding independent counsel subpoena relating to the
Lewinsky matter.
Mr. Burton. Ms. Mills, what did Mr. Ruff ask you to do to
solve the problem?
Ms. Mills. Mr. Chairman, Mr. Ruff indicated that there had
been a problem with certain e-mails that might not have been
captured, that OA was gathering them, that they were going to
forward them to our office. We were going to then need to make
a determination whether or not those e-mails had or had not
been produced and if they had not been produced that we needed
to produce them immediately.
Mr. Burton. Did you work with any other members of the
White House counsel's office in determining the scope of the
problem?
Ms. Mills. The e-mails--the material came from OA over to
our office; and I forwarded them to Shelly Peterson, an
associate counsel in our office, who reviewed the materials to
determine whether or not they were duplicative or whether or
not in fact there were e-mails that had not been captured.
Mr. Burton. Shelly Peterson is her name.
Ms. Mills. Yes.
Mr. Burton. What steps did you take to determine the nature
of the problem?
Ms. Mills. It was my impression that the problem--that
there was an e-mail problem where certain e-mails had not been
captured and that the e-mails were being gathered that had not
been captured and we were then going to have to make a
determination as to whether or not those e-mails had, in fact,
not been captured.
Mr. Burton. Did you develop a test search to diagnose the
problem?
Ms. Mills. I did not.
Mr. Burton. What was the search that you developed?
Ms. Mills. Mr. Chairman, I didn't develop a search. It was
my understanding that the Office of Administration was going to
be forwarding over e-mails that may have been missed and that
those e-mails needed to be searched and reviewed with respect
to prior document productions to make a determination as to
whether or not they had or had not been produced.
Mr. Burton. I think we were told by the Office of
Administration that the White House counsel's office had
developed a search.
Ms. Mills. If that is the case, I wasn't a part of that
development.
Mr. Burton. Who would have been?
Ms. Mills. I don't know the answer to your question.
Mr. Burton. Mr. Ruff, who would have been the one that was
in charge of----
Mr. Ruff. I do not know who conversed with the Office of
Administration on this subject, Mr. Chairman.
Mr. Burton. That's kind of mystifying, if we were told that
the counsel's office developed a search procedure and was sent
to the Office of Administration and you say you don't recall
any of that.
Mr. Ruff. I do not. I was not----
Mr. Burton. And Ms. Mills doesn't either.
Ms. Mills. That's correct.
Mr. Burton. Well, the Office of Administration said they
didn't develop searches. Is that correct, Mr. Lindsay?
Mr. Lindsay. That's correct.
Mr. Burton. So nobody was developing any search program.
Mr. Lindsay. I don't think that that's an accurate
characterization of people's testimony here. I believe my
recollection--what I testified about last time was that I did
not recall who the person was who gave the information to me to
have the search conducted. And, frankly, considering the fact
that there are other investigations going on, there are other
matters that were going on and lots of other important business
that was going on, the actual individual, the identity was not
something that I would log in my memory as being particularly
significant. As long as the task was performed, that was the
important fact.
Mr. Burton. Who developed the search?
Mr. Lindsay. I don't know sir.
Mr. Burton. You don't know. Ms. Mills doesn't know. Mr.
Ruff doesn't know. Does anybody know?
Have you talked to anybody that developed the search?
Mr. Lindsay. I have not inquired on that issue.
Mr. Burton. Why not?
Mr. Lindsay. For a variety of reasons. I think that one of
the reasons why I wouldn't inquire with those individuals as to
how they were developing those things is because there were
serious allegations that were made against me and my conduct in
this matter. I have been very careful in my communications with
people who could be potential witnesses and come before the
committee. I am very sensitive to the fact that it is possible
that people could make an allegation that I was trying to
conjure testimony or conjure information. What I can do and
bring before you is information which is within my knowledge
and what I can testify about. And I'm giving you that state of
knowledge as I am presenting to you here today.
Mr. Burton. So, you don't--there was a test search, though,
done, and you're familiar with that.
Mr. Lindsay. Yes, sir.
Mr. Burton. OK. Did you discuss the test search with anyone
else either in the counsel's office or the Office of
Administration?
Mr. Lindsay. When I received the information I passed it on
to the technical staff so they can conduct the work.
Please remember that this is not a usual practice, for that
kind of information to be passed onto me. So I passed it on to
the people who were working with--and my direct involvement
with this particular matter that was Laura Crabtree and the
Northrop Grumman employees. They conducted the work, I don't
have a recollection as to how long it took, and then that
information was passed back to the counsel's office.
Mr. Burton. Who actually carried out the search for the
Lewinsky related e-mails?
Mr. Lindsay. I could not tell you who actually looked at
it. It was my understanding that it was a team of people. I
passed the information to Laura Crabtree. Ms. Lambuth, I
believe, was involved with it in some way; and Mr. Haas was
involved with it in some way. It was my understanding at the
time, and I believe that this may not be completely accurate,
that he did that on his own in an office and conducted that
review.
Mr. Burton. But you requested the test search.
Mr. Lindsay. Yes, sir.
Mr. Burton. How long after the search was requested, how
long was it before you got the results?
Mr. Lindsay. I don't recall, sir.
Mr. Burton. You don't recall that. Do you know who brought
the results to you?
Mr. Lindsay. It was either Laura Crabtree or Betty Lambuth,
one of the two.
Mr. Burton. Did you then analyze the e-mails that were
gathered in response to the search and how did you analyze
them?
Mr. Lindsay. I did not analyze them. To this day, I have
not looked at a single one of them.
Mr. Burton. What was your conclusion about the e-mails that
had been gathered when they gave the information to you?
Mr. Lindsay. I made no conclusion, sir.
Mr. Burton. Did you see the report, after the search was
made, Ms. Mills?
Ms. Mills. Could you clarify your question? I'm trying to
understand what you mean by report.
Mr. Burton. Well, the research that was done regarding the
Lewinsky matter, when it was concluded and given to Mr.
Lindsay, obviously you or somebody at the Office of
Administration got that. Did you review that?
Ms. Mills. You use the term ``report.'' What we received
were e-mails that were the result of the search.
Mr. Burton. These are the e-mails from the Lewinsky search.
Ms. Mills. Obviously, I'm not in a position to----
Mr. Burton. You can take my word for it. That's what they
are. Did you analyze those after the search was done?
Ms. Mills. I sent the e-mails to Shelly Peterson in our
office, who was handling a lot of the investigative matters
related to the Lewinsky investigation, to review them to
determine whether or not the e-mails had been produced or were
duplicative or had not been produced. So----
Mr. Burton. Did the results of your analysis or reviewing
this lead you to conclude that the problem Mark Lindsay told
you about in fact did not affect the White House's compliance
with subpoenas?
Ms. Mills. I'm sorry, I don't understand your question.
Because it suggested that I did an analysis. What I did was
receive the e-mails and forwarded them to Ms. Peterson to
review the e-mails to determine whether or not they had been
produced or not. And if they had not been produced, then we
needed to produce them; and if they had been produced, they
would obviously have been duplicative and would have been
captured.
Mr. Burton. Once that you saw that there was a problem with
e-mails that had not been produced, did that concern you or did
you understand that there was a problem with noncompliance with
subpoenas that had been sent by the independent counsels and
the Congress?
Ms. Mills. Could you explain your question? You said once I
saw----
Mr. Burton. Once you saw there was an e-mail problem.
Ms. Mills. I didn't see that there was an e-mail problem.
It was my understanding that there were e-mails that had not
been captured, that those e-mails were then being collected,
that we then needed to make a determination as to whether or
not they had been captured or not. If they had not been, then
we needed to produce them immediately.
Mr. Burton. Well, Mr. Lindsay, the Office of Administration
had made the counsel's office aware that there was an e-mail
problem that they hadn't captured since September 1996. Weren't
you aware of that?
Ms. Mills. No. I was not a part of the meeting, to the best
of my recollection. I learned about the matter from Mr. Ruff
afterwards.
Mr. Burton. That's the meeting that Mr. Lindsay had with
Mr. Ruff where you're not sure you were in attendance and Mr.
Lindsay is not sure you were there.
Ms. Mills. I don't believe I was there. That's my best
recollection.
Mr. Burton. Your best recollection.
Ms. Mills. And I don't recall occasion where I had a
conversation with Mr. Lindsay on this matter.
Mr. Burton. Didn't Mr. Ruff mention to you after his
meeting with Mr. Lindsay there was a problem with the e-mails?
Ms. Mills. Mr. Ruff indicated that there was a problem that
e-mails may not have been captured, that the Office of
Administration was collecting those e-mails, and we were going
to have to make a determination as to whether or not those e-
mails had or had not been captured, and if they had not been we
needed to produce them immediately.
Mr. Burton. Can you tell us exactly or to the best of your
recollection what you told Ms. Mills about the e-mail problem
and what you instructed her to do?
Mr. Ruff. As I think as reflected in my interview with the
committee, Mr. Chairman, I did not have a recollection as to
whether Ms. Mills was or was not present at the original
meeting with Mr. Lindsay. And thus, candidly, I do not have a
recollection of a subsequent conversation. But I take at face
value Ms. Mills' recollection as being accurate, and I cannot
either add or subtract from her description.
Mr. Burton. Mr. Ruff, you were the chief counsel to the
President. You were the one that was supposed to make sure the
subpoenas were complied with. You were told by Mr. Lindsay that
there was a problem with e-mails that had not been captured
since September 1996, which was right at the beginning or the
height of the campaign finance scandal. So you knew there was
going to be some concern about that.
Mr. Ruff. I have already so stated.
Mr. Burton. So what did you do? I mean, did you--what did
you do?
Mr. Ruff. My best recollection is that, either directly or
indirectly through my conversation with Ms. Mills, we were
going to have a search performed by the Office of
Administration who typically does our electric--or did our
electronic searches, to determine whether in fact what I had
been told by Mr. Lindsay about this problem did indeed have an
adverse effect on our collection and production of documents,
specifically focused, for obvious reasons, on the most recent
subpoena issue, that is, the Lewinsky subpoena from the Office
of Independent Counsel.
Mr. Burton. So you knew that there was a problem. You knew
a search had to be done.
Mr. Ruff. That's correct.
Mr. Burton. And you don't recall who you asked to conduct
the search.
Mr. Ruff. I do not.
Mr. Burton. And Ms. Mills--you don't recall talking to Ms.
Mills about this.
Mr. Ruff. I recall either talking to Ms. Mills afterwards
or during the meeting. I take at face value, as I've said, her
recollection that she was not present and that we talked there
after rather than at the meeting itself.
Mr. Burton. Well, did you ask Ms. Mills to pursue the
search and to make sure that the search was done by the
Department of Administration?
Mr. Ruff. I don't recall what I specifically said to Ms.
Mills, but I knew that a search was being conducted. I do not
know, as I've already said, who framed the boundaries of the
search or how it was being conducted by OA.
Mr. Burton. Mr. Ruff, you're one of the brightest lawyers
in this town. You know the gravity of the situation. You knew
that there was a problem. You had to instruct somebody to
conduct the search to make sure there was compliance with the
subpoenas. You don't remember who you asked to do the search?
Mr. Ruff. I do not know whether indeed I did ask somebody
to do the search. My recollection is that a search was being
conducted--was being conducted by the Office of Administration
and the appropriate people within that office and that the goal
of the search was to determine whether or not the e-mail
problem that Mr. Lindsay described to me had adversely affected
our collection and production of documents and response to the
independent counsel's subpoena.
Mr. Burton. Where does the buck stop? In compliance with
subpoenas, where does the buck stop?
Mr. Ruff. Mr. Chairman, as has been the case from the very
first moment that you and I talked, I take--I took
responsibility then, I take responsibility now for the work of
my office and my staff. And in that sense the buck stops with
me.
Mr. Burton. So it stops with you. And you're a very bright
attorney. I cannot for the life of me believe that you saw
there was an e-mail problem, you knew a search had to be done,
and you talked to Ms. Mills about it, you had been talked to by
Mr. Lindsay about it, and you don't know who you asked to
conduct the search to comply with the subpoenas from
independent counsels and the Congress and the Justice
Department.
Mr. Ruff. Mr. Chairman, I can vouch for this much. I knew
that a search was being conducted by one of the members--one or
more members of my staff, and I cannot tell you who was
responsible for document production and I am certain was
talking to the Office of Administration. If I knew who that
was, I would tell you who it was. But I do not recall.
Mr. Burton. This was a very broad problem. How is it
confined down to a very narrow search of just the Lewinsky
case?
Mr. Ruff. My understanding of the problem was that the
problem existed. I did not know how broad it was or what effect
it had. Thus, in my view, a search particularly focused on
compliance with the independent counsel's subpoena in the
Lewinsky matter was a device for determining whether indeed the
problem described to me had had an affect on our compliance
with subpoenas.
Mr. Burton. Who did you ask to conduct that limited search?
Mr. Ruff. As I've said, Mr. Chairman, in response to your
previous questions, I do not recall having such a conversation.
I cannot tell you who framed that search request for the Office
of Administration.
Mr. Burton. And, Ms. Mills, you don't recall--you don't
recall ordering the search or having anything to do with it
other than having Mr.--the counsel, Mr. Ruff, tell you about
it.
Ms. Mills. I did not order the search. I did understand
that e-mails were being collected, that they were going to be
provided to us, that we needed to review them to make a
determination as to whether or not they were duplicative or
whether or not they had not been captured, and if they had not
been captured then we needed to provide them.
Mr. Burton. But you say you do recall Mr. Ruff bringing
this to your attention.
Ms. Mills. Yes.
Mr. Burton. And do you recall him asking you to conduct a
search or to make sure a search was done?
Ms. Mills. I recall him telling me that OA was conducting a
search and they would then be providing us with the materials.
Mr. Burton. But he didn't ask you to be in charge of that.
Ms. Mills. No.
Mr. Burton. What did he ask you to do?
Ms. Mills. He told me that the materials would be coming
over and then we were going to need to make a determination
with respect to whether or not the materials reflected that e-
mails had not been captured or that they had been, and so that
we were going to have to have, obviously, our staff review all
of the different materials that were collected to make a
determination to answer that question.
Mr. Burton. But you didn't ask Mr. Lindsay to conduct a
search or give him any boundaries. And Mr. Ruff, you don't
recall doing that either.
Mr. Ruff. No, Mr. Chairman.
Ms. Mills. No.
Mr. Burton. When you talked to Mr. Lindsay, Mr. Ruff, and
he brought to this to your attention, do you remember what you
said to him? Did you say, ``oh, my gosh, this is something that
we have got to do something about.''
Mr. Ruff. I don't remember what I said to Mr. Lindsay. But
as I've already stated, Mr. Chairman, I understood that this
was an issue that we needed to address and in particular in the
context of the independent counsel's subpoena.
Mr. Burton. What about the other contacts in addition to
the independent counsel's subpoenas? You had subpoenas from us,
you had subpoenas from a number of independent counsels and
probably from other committees of Congress.
Mr. Ruff. My immediate focus, given the time and the
circumstances we were living through at that time, Mr.
Chairman, was to focus on our immediate compliance with the
independent counsel's subpoena. If in fact I had concluded that
indeed there was a broader ranging problem that adversely
affected our early productions, obviously I would have done
something about it.
Mr. Burton. This question I have for Ms. Mills is
irrelevant I guess, because she says she doesn't recall asking
them to conduct the search, but I'll ask it anyway. Ms. Mills,
the names that you asked the technical people at OA to use in
running the test searchs were related only to the Lewinsky
case, but you don't recall that at all.
Ms. Mills. I didn't ask anyone--I didn't conduct or
undertake the technical search terms or provide the technical
search terms, that's correct.
Mr. Burton. Given the nature of the Lewinsky search, how
could it have told you that there wasn't a broader, larger
universe of potentially responsive documents?
Ms. Mills. To whom are you directing your question?
Mr. Burton. You and Mr. Ruff.
Ms. Mills. I didn't understand or appreciate that there was
a broader problem. From my perspective, I thought we were
collecting the e-mails that had been captured. So what we were
looking at then was the e-mails that potentially might have
been missed and that needed to be produced if they had been
missed.
Mr. Burton. So you didn't know about a broader universe of
documents.
Ms. Mills. Correct. It was not my impression that there was
a broader universe of documents.
Mr. Burton. Mr. Lindsay came to see you, Mr. Ruff; and when
he came to see you he told you that there was a broad problem
with the e-mails, not just restricted to the Lewinsky matter. I
mean, he had to tell you that because he knew that the e-mails
since September 1996 hadn't been captured. And so my question
is, if you knew there was a broader universe, why----
Mr. Lindsay. Excuse me, Mr. Chairman. It was not that there
were--all e-mails. We're only talking about incoming e-mails,
which is a very much smaller----
Mr. Burton. It was 248,000 that we know of. In any event--
--
Mr. Lindsay. We don't necessarily know that, sir.
Mr. Burton. When he brought to your attention that there
was a broad array of e-mails that were not captured, you knew
it went beyond the Lewinsky matter. Why wasn't the whole thing
looked into instead of limiting just to the Lewinsky matter?
Mr. Ruff. Mr. Chairman, my view of the problem, as best I
recall it coming out of my meeting with Mr. Lindsay and
subsequent events, was indeed there may have been a problem and
it may indeed have affected our past compliance with subpoenas.
Once--as I've indicated in my interview with the committee
counsel--once it turned out that the Lewinsky e-mails had, in
fact, all been collected, the incoming Lewinsky e-mails had
been collected, it was my view, whether mistaken or not, that
indeed the problem Mr. Lindsay had described to me had not
affected our capacity to collect and produce documents.
Whether that was my technical ignorance or whether it was a
misunderstanding of the problem, what I represent to you, as I
have previously, is that at the point where the word came back
to me that the Lewinsky e-mails had in fact been collected and
it turned out they were duplicative of what we had already
found, I believed that the problem did not, in fact,
retrospectively affect our compliance.
Mr. Burton. It just mystifies me. Mr. Lindsay had to give
you a complete analysis of the problem. That was his charge. He
had to tell you that there was e-mails that weren't captured in
a broad array of areas. And you recall it being confined to the
Lewinsky matter. You recall that.
Mr. Ruff. No, Mr. Chairman, that's not what I've said. What
I said was that I came away from my discussion with Mr. Lindsay
recognizing that there was a problem, that my focus initially
was on the Lewinsky subpoenas because those were the ones of
the most immediate and practical concern to my office. That
when the report came back to me that indeed the Lewinsky
subpoenas had pro--that our search in connection with the
Lewinsky subpoenas had produced the same documents that had
been found in this e-mail search I believed that the problem
did not in fact adversely affect our past searches.
Mr. Burton. Well, my time is expiring. I will have to yield
to Mr. Waxman. But I have to tell you that it just stretches
credulity to believe that Mr. Lindsay would come to you, tell
you about the problem, Mrs. Mills doesn't remember whether she
was in the meeting, he doesn't remember whether she was in the
meeting, he doesn't remember whether he made a phone call to
talk to the Northrop Grumman employees who were threatened.
Nobody remembers anything. You don't remember, she doesn't
remember who ordered the search or how broad the search was.
You know, I hope whoever is paying attention to this realizes
that we have a lot of people in the White House that simply
don't remember anything.
Mr. Waxman.
Mr. Waxman. Mr. Ruff, Ms. Mills, Mr. Lindsay, thank you all
for being here today.
This is the 4th day of hearings we've had in this committee
on this missing White House e-mails, and during these hearings
our chairman and other Republican Members have made some
extremely strong allegations. They've alleged that the White
House threatened individuals if they disclosed the e-mail
problem, they have alleged that the White House deliberately
covered up the e-mail problem, and they've alleged that the
White House obstructed justice by knowingly failing to disclose
that the White House had potentially responsive e-mails that
hadn't been searched in response to subpoenas. So I want to ask
you about these allegations. These are very serious allegations
that have been made.
Now let's look at the first one. The first one is that once
the e-mail glitch was discovered the White House threatened
outside contractors who discovered the problem with jail if
they told anybody about them.
For example, Representative Chenoweth-Hage, who is a member
of our committee, said in an open hearing, ``Evidence suggests
that contracted staffers were personally threatened with
repercussions and even jail should they mention the very
existence of the server problem to anyone, even their bosses.
This occurred while these e-mails were under subpoena. This is
inexcusable. This is criminal. If this is not obstruction of
justice, I don't know what is. If one were to apply the
standard of an ongoing criminal conspiracy, the White House
fits it.''
Now that's the allegation that was made in one of our
previous hearings.
Mr. Ruff, you've had a distinguished career in public
service. You have been a member of the U.S. Attorney's Office
for the--you were the U.S. attorney for the District of
Columbia, president of the District of Columbia Bar,
corporation counsel for the District of Columbia, White House
counsel. Your reputation for integrity is, I think,
untarnished. I want to ask you about this allegation that was
made. Did you ever threaten anybody with jail or in any way if
they ever revealed the e-mail problem?
Mr. Ruff. Of course not, Congressman Waxman. Neither I nor
anyone on my staff nor candidly anyone that I knew at the White
House would ever have made such a threat.
Mr. Waxman. Well, let me ask more specifically for the
record, you say you didn't do it directly. Did anyone do it
indirectly at your behest to threaten anybody?
Mr. Ruff. Absolutely not.
Mr. Waxman. Did you participate in or have any knowledge of
any White House effort to threaten anyone?
Mr. Ruff. Absolutely not.
Mr. Waxman. Ms. Mills, let me ask you the very same
questions. Did you directly or indirectly or in concert with
others in the White House threaten anyone if they revealed the
missing White House e-mails that are the subject of this
hearing?
Ms. Mills. I did not.
Mr. Waxman. Well, the second allegation that we have to
explore is whether there was a concerted effort by the White
House to cover up the e-mail problem. For example, in our first
hearing on this matter, the chairman said the White House--and
this is the chairman's statement in a public hearing--basically
had two choices: They could face up to the problem, tell the
Justice Department and the Congress what happened and get it
fixed, or they could throw a blanket over the whole problem,
ignore it and hope nobody would find out. It looks like they
chose to cover it up.
That's the statement of the chairman.
Mr. Ruff, let's hear from you about this allegation. Did
you ever cover up or attempt to cover up the e-mail problem
from congressional or other investigative bodies?
Mr. Ruff. I did not, Congressman Waxman.
And let me just say in that regard that whatever the
tensions that existed in our relationship with this committee
and indeed with other congressional committees during the
course of my tenure in the White House, we were on every
occasion forthcoming when we found something that had not been
produced or where there was a problem we brought it to the
attention of the committee, we produced the documents.
I can tell you that members of my staff spent many an
unhappy hour with the staff of this committee explaining why
indeed some failure in our system had delayed the production of
documents. And rather than even suggest at any time that any
member of my staff or to my knowledge anyone else in the White
House would conceal a problem like this, to the contrary, we
stepped forward, we made our mistakes, if we ever committed
them, known to the committee, and produced the relevant
documents, and we did so as quickly as possible.
Mr. Waxman. Ms. Mills, let me ask you about this issue of
the cover-up. Were you involved or do you have any knowledge of
a cover-up by the White House to keep the e-mail issue from the
legitimate investigators that had subpoenaed the information
and didn't receive it.
Ms. Mills. Absolutely not. I would like to echo Mr. Ruff's
sentiments. He was always very clear about his position with
respect to documents and materials that came to light later,
after we believed that we had been successful in capturing
everything; and the clear direction always was that we needed
to produce them as soon as possible.
Mr. Waxman. Mr. Lindsay, did you know about any cover-up or
were you part of any cover-up about these White House e-mails?
Mr. Lindsay. Absolutely not sir.
Mr. Waxman. Then the third allegation that's thrown around
quite loosely around this place is, the White House knew that
it had not produced all the responsive e-mails, but decided not
to tell Congress or the independent counsel.
Chairman Burton and others have alleged that this is
obstruction of justice. For example, yesterday Representative
Shays stated that, the White House obstructed justice and we're
trying to see who did it. That was his statement at a hearing.
Mr. Ruff, let me ask you about this allegation. Were you
aware at any time that the White House possessed responsive e-
mails that it had not produced to investigators in response to
subpoena.
Mr. Ruff. Mr. Congressman, the answer to that question is
in essence the same as the previous one. I took and I know that
members of my staff took whatever steps we believed were
necessary to uncover the existence of a problem. If we believed
one existed, and that includes the e-mails, we would have done
something to deal with it. Never, not once, did anyone on my
staff seek to conceal, delay production of or otherwise cover
up any document production whether it be electronic or paper.
Mr. Waxman. What about you, Ms. Mills, did you participate
or did you know of any White House cover-up about these e-
mails?
Ms. Mills. I was not aware of any cover-up with respect to
the e-mails and do not believe that that would have occurred.
Mr. Waxman. Mr. Lindsay, do you have any knowledge of any
cover-up?
Mr. Lindsay. I have no knowledge of any cover-up and nor
would I have participated in any one if there was one that
existed.
Mr. Waxman. Mr. Ruff, I want to walk us through a
chronology of what you know about the e-mail computer glitch
from your perspective.
When did you first become aware that there was a potential
e-mail problem?
Mr. Ruff. I first became aware it was when Mr. Lindsay met
with me in June 1998.
Mr. Waxman. And what was your understanding of the scope of
the problem?
Mr. Ruff. My understanding of the problem at that point was
that there had been a technical problem, that indeed incoming
e-mails may not have been collected during a period of time
that extended back beyond the date of our meeting, and that
indeed it was going to be necessary to determine; particularly
in the context of the Lewinsky subpoenas, whether in fact we
had collected all the documents that were in existence.
Mr. Waxman. And what did you do after you became aware of
this?
Mr. Ruff. As I've indicated in responding to the chairman's
questions, I do not recall what specific conversations I had,
but I know that efforts were undertaken to shape a tasking for
the Office of Administration to inquire into whether the
Lewinsky-related e-mails had in fact been encompassed in and
collected by our previous search.
Mr. Waxman. And did your staff report back to you after the
problem had been explored?
Mr. Ruff. They did. It was reported back to me that, in
fact, after searching pursuant to the directions to the Office
of Administration, the e-mails that had been found were
duplicative of what had already been produced to the
independent counsel's office.
Mr. Waxman. So as far as you knew, these e-mails had gone
to the investigators?
Mr. Ruff. That's correct, Mr. Congressman. And further, I
extrapolated from that, whether accurately or inaccurately,
that the problem that had been described to me did not indeed
have an adverse effect on our compliance with earlier
subpoenas.
Mr. Waxman. When did you learn that the e-mail problem may
in fact have affected this document production?
Mr. Ruff. Candidly, I wasn't aware of that until it
surfaced in the newspapers earlier this year.
Mr. Waxman. Were you at the White House counsel's office
then?
Mr. Ruff. No, I wasn't.
Mr. Waxman. The Republicans have alleged that you or your
office participated in covering up evidence of these missing
White House e-mails, but in fact you have a track record in
this area; you referred to it a few minutes ago. On several
occasions during your tenure at the White House counsel's
office, you or your office discovered that relevant evidence
had not been turned over to Congress.
Mr. Ruff. That's correct.
Mr. Waxman. Maybe it hadn't been completely turned over to
Congress. I want to ask you about some of those specific
incidents.
In October 1997, your office learned that the White House
communications agency had videotaped certain White House
coffees, but it had not provided them to the Congress. What did
you do after you found this out? Did you try to cover this up
or did you promptly disclose it to the Congress?
Mr. Ruff. Congressman Waxman, I think the staff of my
office who were involved in it will tell you that they worked
literally 24 hours a day once we discovered the existence of
this problem, produced those videotapes both to this committee
and to Senator Thompson's committee; and I think the record is
absolutely clear, both here and in the Senate, that that
failure of production was originally a product of a
technological or logistical snafu, had nothing to do with
anyone's efforts to cover up those videotapes.
Mr. Waxman. Well, it's so interesting that this is similar
to the issue before us today. Because what you're telling us,
that immediately after you found out there was a problem you
responded, got the documents produced, sent them to the
Congress, you disclosed the existence of the videotapes, and
you did the right thing.
Mr. Ruff. I like to think so, Mr. Congressman.
Mr. Waxman. Do you know what the response was from Members
of Congress?
Mr. Ruff. Many of us lived through that response, yes.
Mr. Waxman. Well, Chairman Burton went on CBS, Face the
Nation, and he said, ``Some of the tapes were cutoff very
abruptly, and then you go to another tape. We think maybe some
of those tapes have been cutoff intentionally. They've been
altered in some way.''
So he made an allegation of cover-up and tape alteration,
and that was widely reported.
Then they were thoroughly investigated. This allegation was
made. We had an investigation. We found out that you turned
over these tapes, and we also found out they had never been
altered in any way. Our committee and the Senate Governmental
Affairs Committee failed to produce any evidence of tape
alteration; and, in fact, investigations produced compelling
evidence that the tapes had not been altered at all. And the
further investigation revealed that the reason the videotapes
were not initially produced was due to innocuous mistake. One
page of the initial search directive faxed from the White House
counsel to the White House communications agency had been
misplaced. That page contained instructions that would have
resulted in a videotape search.
So you have an example where there was a snafu, you found
out about the snafu, you produced the documents, and rather
than get praised for producing the documents you were accused
of a cover-up. Then we had an accusation that the tapes were
altered, and it turned out they weren't altered. We never have
an apology for the accusations that were incorrect, only a new
one that comes along.
Let me give you another one that was given. This committee
investigated the White House data base. It's called WhoDB. And
this followed the similar pattern. In October 1997, in the
process of responding to a request relating to the WhoDB
investigation, your office found several documents that were
potentially responsive to earlier requests. And within a week
you turned these documents over to the committee, noting that
it was your policy to err on the side of production.
This didn't satisfy our committee. Representative McIntosh,
who led the WhoDB investigation, alleged that the initial
failure to turn over the documents was a Federal crime--
obstruction of justice. Mr. McIntosh referred Ms. Mills to the
Department of Justice, claiming that her actions regarding the
documents at issue were Federal crimes. The Department of
Justice looked into the issue, and they determined there was
just no merit to these accusations.
I think, Ms. Mills, your statement this morning was a
superb one. We have to be reminded that we're human beings,
sometimes we make mistakes. But we ought to recognize that
making a mistake doesn't mean that you're guilty of a crime.
And if you're in public service working for an administration
and a President that someone doesn't like doesn't mean that
you're a criminal for being part of that administration.
And we have a track record on this committee. We have a
track record of wild allegations that are made smearing
people's reputations. When you are accused of perjury or when
Mr. Ruff is accused of obstruction of justice or Mr. Lindsay
accused of threatening people and it turns out none of it's
true, one, the press doesn't catch up with the facts of the
original allegations, they're already in the paper. And then
there are new allegations to take their place, and those new
allegations get the headlines, not the facts that clear
everybody up. Now it's not an enviable track record that we
have on this committee to have unsubstantiated allegations of
cover-ups, and I fear that's exactly what's happening today.
Now, Mr. Burton focused in his questioning about whether
you took this issue seriously enough and whether someone was in
charge or who was in charge. It sounds like some of these
things in the specifics you can't recall. I suppose if you had
it to do over again, you might have kept better track of who
was doing what. But I suppose you had a lot of other things
going on during that time as well.
This isn't the only committee that's bombarding you with
subpoenas. The President was under investigation, the Senate
and the House were looking at impeachment charges, and every
opportunity that Members of the Republican leadership in the
Congress had, they wanted to hold another investigation.
In retrospect, Mr. Ruff, do you think you would have been
better off if you kept better track of who was doing what about
these White House e-mails?
Mr. Ruff. I have no doubt in retrospect many events could
have been shaped differently and perhaps better. But I think--
and I appreciate your comments, Congressman Waxman. I think the
bottom line for all of us in the White House counsel's office
is that we did our best. We did our best to act professionally
and ethically and responsibly. And if in fact we failed to do
so in our efforts to do it, it was by inadvertence and not by
intention.
Mr. Waxman. It's clear to me listening, to the testimony,
there is a lapse. But it seems to me an embarrassing lapse of
trying to remember who was doing what precisely is a lot
different from criminal conduct. And what we have are
accusations trying to criminalize the failure to remember who
specifically was working on what in your office.
If there was no threat to anybody about the information, if
there was no cover-up about the information, if you did
everything you could do to get the information to the Congress
and the investigators and to correct this technical problem,
which was due not to your actions but to the actions of the
contractors, Northrop Grumman, who were supposed to develop a
White House data base system that could pick up all the e-mails
wherever they may come from and, as far as you knew, were doing
everything you could do, even if you didn't do everything that
you wished you might have done, that's a bit embarrassing
because you're the one in charge. But it's not criminal
conduct.
Mr. Ruff. I'm not happy, but willing to suffer the
embarrassment, which may be justified to the extent that I
failed adequately to pursue or understand the matter. But, as
you suggest, Congressman Waxman, and I think I speak here for
not only myself but all of those who worked with me, never, not
once, would anybody on my staff intentionally conceal or seek
to cover up any misconduct.
Mr. Waxman. I thank you for that answer. You're before a
committee that never seems to acknowledge their mistakes nor be
responsible for the embarrassments they have caused to others
with wild accusations. I have in my time----
Mr. Ford. If you would yield.
Mr. Waxman. I yield to Mr. Ford to pursue some questions.
Mr. Ford. Thank you, Mr. Waxman, to the members of the
committee. Let me also acknowledge another great patron and
servant in the Clinton administration, Mr. Bruce Lindsay, who I
believe is here with us this morning, and his daughter, who is
a fine student down in my district at Rhodes College and is a
frequent phone companion as she is proud of what her dad is
doing and trying to do good work at Rhodes College. I think she
is now back at home if I'm not mistaken. We miss her in
Memphis.
Let me thank also Ms. Mills for having the courage to come
before this committee with her candor and frankness about how
her contributions in this administration and to contributions
she's made to the public service arena over the years. As a
member of this committee who is young and who is proud to
serve, I am proud of the contributions you have made and
relieved to hear that despite the torturous way this committee
and members of this Congress, and I would say to my colleagues
on the other side that you ought to be embarrassed after
listening to this young lady. It almost brought me to tears
listening to you to describe how and when you came into the
White House at the tender age of 27, leaving at the age of 34,
and despite all that you have been through, the unwarranted
impugning of your character and unjustified attacks on your
integrity, you remain strong and resilient and I think a better
public servant after all that you have gone through. It's
unfortunate you had to go through what you had to go through,
and I hope my colleagues on the other side of the aisle, when
they have the opportunity to talk, will apologize to you and
apologize to the young Americans that they might with their
action and conduct, as despicable as it might have been, might
not discourage other young people from wanting to enter into
public life.
So with that, Ms. Mills, I would also say in your comments
you said you felt that this was risking personal peril, be
assured there are those of us on this committee that won't
allow Dan Burton or anyone in this committee for that matter to
harm you any further than they already have.
I would enter into the record if I could, Chairman Barr, I
think you're in the chair now, it probably already has, but
there's been references made to the McIntosh letter urging the
Justice Department to bring perjury and obstruction of justice
charges against Ms. Mills. The May 6, 1999 letter from the
Department of Justice reads: ``The Department has completed its
review of your referral of criminal allegations involving
deputy counsel to the President Cheryl Mills. After careful
consideration and review of the materials submitted with your
letter of September 17th we have determined that further
investigation is not warranted and have declined prosecution.''
I think it's somewhat poetic that the author of this letter was
Ms. M. Faith Burton. I would imagine we won't investigate if
there's any connection to our chairman. I would enter all of
this into the record if that would be OK.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T9621.617
Mr. Ford. Let me move to pick up where Mr. Waxman left off,
if you don't mind, to all of our witnesses. One of the concerns
that I believe and would hope that all of us would have on this
committee is the unbelievable costs that this is imposing on
the taxpayer. I know that Mr. Waxman requested a GAO study back
in 1998 that found in the 18-month period between October 1,
1996 and March 31, 1998, 21 Federal agencies reported that they
had received more than 1,100 campaign finance inquiries from
Congress. GAO calculated that the cost of responding to these
inquiries cost the taxpayers in excess of $8.7 million. I would
point out to members of the press and the committee that that
does not include the $3 million that we spent on this committee
investigating all of these, some of them wild, allegations.
We learned yesterday and this morning in a very reliable
Washington Times, after Mr. Lyle's testimony, that going back--
that the total cost of the e-mail reconstruction could
ultimately cost somewhere between $8 to $10 million. This is a
large price tag I believe for reconstructing incoming e-mails
that we're not even certain will have significant relevance to
the investigations.
Mr. Ruff, I'm interested in learning about who will have to
foot this bill. Will the taxpayers be paying for the MAIL2
reconstruction?
Mr. Ruff. Congressman, although I enjoyed my time in the
White House or at least most of it, I am at the disadvantage
now of being a private citizen, and I'm not sure that I can
answer your question officially, but I suspect, yes, indeed,
the taxpayers will be bearing that burden.
Mr. Ford. I ask that to sort of followup, Mr. Ruff, and I
appreciate you even coming today being that you should not be
put through further harassment, but since you're here, the
evidence this committee has received shows that the MAIL2
problem was due to an inadvertent mistake by White House
contractors.
Do you believe that the contractor or contractors that
caused the problem should be responsible for paying the cost of
reconstruction? And I would ask Mr. Lindsay, if he wouldn't
mind, to comment on this issue as well.
Mr. Ruff. Congressman, I candidly am uncomfortable in
trying to respond to that question because I simply don't know
what the facts of the case are.
Mr. Ford. That hasn't stopped us, Mr. Ruff, but I
appreciate you responding. Mr. Lindsay, if you wouldn't mind
responding, sir.
Mr. Lindsay. Yes. That is an option that we are in the
process of exploring and were in the process of exploring, but
because of the exigencies which were imposed by the request by
the committee and by other bodies, it was important for us to
go ahead and move forward. So the resolution of whether or not
we can get any kind of recompense back from the contractor is
something that will have to be determined later because of the
exigencies imposed by the request by the committee.
Mr. Ford. Ms. Mills, excuse me, if I could come back to you
for just 1 second. You described eloquently the cost of this
experience. Would you mind just elaborating a bit the costs
that were imposed upon you by virtue of this committee calling
you before us on so many different occasions, both financial
and other, briefly, if you wouldn't mind. It's good to see you
this morning and you look great by the way.
Ms. Mills. Thank you very much. Well, I have legal fees
that I am still paying for lots of allegations that have been
made against me, and they're my fees that I have to pay. Today
I had a scheduled event with my company that I was supposed to
be presenting at as well as having a speech this evening that I
was supposed to be giving in New York City, both of which Mr.
Burton explained to me were insufficient and he could not
indulge my schedule. So in addition to that, certainly during
my tenure in the counsel's office, there were many occasions in
which the personal toll I felt was relatively high, and I'm
grateful for having had the opportunity to serve, but I also am
enjoying quite nicely now being in the private sector for the
moment.
Thank you for asking.
Mr. Ford. Hopefully we can find a way to bring you back
with the next administration.
Mr. Lindsay, if I could come back to you for one moment.
Chairman Burton has made some strong allegations regarding your
conduct. He said at our March 30 hearing, which I regret that I
was not present at, that Mr. Lindsay and Ms. Callahan are
accused of doing something that is really wrong. They're
accused of trying to intimidate people who work for them. He
went on to assert or accuse that because you are a potential
target of a Justice Department investigation of the e-mails
matter, you had, ``every reason to give misleading testimony or
to engage in selective memory loss.''
I want to ask you a little bit about these allegations
because I think you're being unfairly attacked. During our
first hearing we heard testimony from six current and former
Northrop Grumman contractors and subcontractors. They discussed
a meeting that was held with an OA career, and I take it OA
means Office of Administration?
Mr. Lindsay. Correct, sir.
Mr. Ford. With an OA career civil servant named Ms. Laura
Crabtree Callahan shortly after the MAIL2 problem was
discovered in June 1998. Several of them testified that you
addressed the meeting briefly by speakerphone. Now, you do not
recall participating in that meeting over the phone or that's
correct, that's my understanding----
Mr. Lindsay. That is correct, sir.
Mr. Ford. In fact, you have been harshly criticized by
certain members of the committee for not recalling this phone
call, and I digress for one moment. I would imagine that all of
my colleagues here in the Congress I would venture to say, I
don't know how many of us, with the large number of calls that
we receive a day and the meetings we participate in, how many
of us could pinpoint the times and all the persons we might
have spoken to in a day and each and every person who might
have been present in a meeting. We just got off a recess, as
many of you know, and some, if not all, of us went home to
work, and I couldn't tell you which staff was present in
certain meetings with the Port of Memphis or with IBM officials
or with labor officials or with school officials. I know
certain folks are assigned to those different areas, but I can
sympathize and I would imagine some of the allegations that
have been made against our chairman by lobbyists here in town,
and I certainly wouldn't engage in any smear tarnish attacks,
that all of us at times have this selective memory, to borrow
his terminology, I think just human. Humans forget when you
might talk to folks, and for us to pull up your day planner
that day and show that Ms. Mills' name or whomever's day
planner we might have pulled up to show that Ms. Mills' name
was on it at 4:30, I thought was somewhat ridiculous and low-
handed.
But notwithstanding that, it's still not clear to me why it
was to your advantage to forget this call because not one
witness has claimed you made any threats at that meeting. One
of the contractors, Bob Haas, I believe I'm pronouncing his
name correctly, Mr. Waxman, said that Ms. Callahan told him
after you hung up the phone that there would be a, ``jail cell
with his name on it,'' if he told his wife. Another contractor,
Sandra Golas, and I hope I'm pronouncing Ms. Golas' name
correctly, testified that she remembered the word, ``jail''
being used in the meeting but could not remember who said it.
Two other contractors who were present Mr. Salim and Mr.
Spriggs do not remember the jail threat or any other threats
being made, but no one suggests that you made any threats at
that meeting, Mr. Lindsay. If anyone doubts what I'm saying,
and we doubt each other in this committee often, all they need
to do is go back and look at the March 23rd transcripts.
Now one of the contractors, Ms. Betty Lambuth, did accuse
you of threatening her in a separate conversation, Mr. Lindsay.
She told us that she had a meeting with you and I believe a
Paulette----
Mr. Lindsay. Cichon.
Mr. Ford [continuing]. Cichon--you knew I was going to have
trouble there--another OA official which you, Mr. Lindsay, told
her that if she or any of her team, ``who knew about the e-mail
problem told anyone else about it we would lose our jobs, be
arrested and put in jail.'' There's a fundamental problem
apparently with Ms. Lambuth's testimony.
It's been flatly contradicted by the other person present
at that meeting, Ms. Cichon. She signed a written statement on
March 29th in which she said that ``at no time did I perceive
Mark, Mr. Lindsay, threatening Betty or myself. At no time was
a threat of jail mentioned or any other threat. If any threat
were made I would have certainly remembered it and would have
taken the appropriate action and response. I did not take part
in any other meetings or conversations in which Mark or anyone
else made any threats.''
That statement was introduced into the record by Mr. Waxman
at the March 30 hearing and Ms. Cichon has since confirmed her
statement in person during interviews with committee staff.
This is not the only time apparently that Ms. Lambuth has been
directly contradicted by other witnesses. I wish Ms. Lambuth
was here. During the hearing Ms. Lambuth also claimed that Mr.
Haas examined the, ``missing e-mails'' and told her that they
contained information relating to Filegate, concerning the
Monica Lewinsky scandal, the sale of Clinton Commerce
Department trade mission seats in exchange for campaign
contributions, and Vice President Al Gore's involvement in
campaign fundraising controversies. Bob Haas told the committee
that Ms. Lambuth's allegations were, or her allegation, excuse
me, was completely inaccurate. He said he had no knowledge of
any e-mails relating to Filegate, the sale of Clinton Commerce
Department trade mission seats in exchange for anything or
campaign contributions or Vice President Al Gore's involvement
in campaign fundraising controversies. And he said that he
never told Ms. Lambuth otherwise.
But unfortunately the facts don't dissuade my committee
members, particularly those on the other side. We have no
credible evidence that you threatened anyone, yet the chairman
and other members keep repeating that you made jail threats and
these threats keep getting repeated in the newspapers.
Unfortunately you're not alone in receiving this unfair
treatment from this committee. Unfortunately your seatmate can
speak to the same type of treatments.
I introduce to the record as I prepare to yield back to my
chairman, Mr. Waxman, GOP's distrust of Clinton drives
Congress' agenda. You mentioned so eloquently, Ms. Mills, the
issue that we should be addressing here in this Congress. You
even reminded this chairman and perhaps suggested to him and
members on the other side that U.S. attorneys who sit on that
side, former U.S. Attorneys, that perhaps we ought to
investigate the way young African American men are being
treated in New York and Los Angeles and around this Nation. If
we could find a way to link it to something that's happening at
the White House I think we'd probably have better success in
getting this committee to do that.
But I would only repeat the comments of a Republican
Senator, a dedicated war veteran in Senator Chuck Hagel, who is
no real friend of those of us liberals on this side, as we are
sometimes labeled, and those of us who are hiding, obstruction
of justice and those who are perjurers, but Senator Chuck Hagel
criticized his fellow Republicans for allowing their deep
seeded suspicions of President Clinton to derail their own
political agenda. Mistrust is the common thread. It is my hope
that in the midst of all of this, Chairman Barr, Chairman
Burton and others on the other side, that we will remember that
government's about something bigger and better than us, that we
are dispensable to this whole system, sir.
We, as Ms. Mills so eloquently said, have good days and bad
days, but I hope we would not take our bad days out on those
who disagree with us and who have visions and perspectives and
biases and prejudices that may be different than ours. Mr.
Waxman is going to be upset with me for taking all his time,
Ms. Mills, but I want to say one more time you were absolutely
wonderful this morning and I only wish that more of my
colleagues could have been here to hear you, and only hope that
those of us that are here will take the message back to our
colleagues who did not get an opportunity to hear your
outstanding comments this morning.
Mr. Lindsay, I didn't hear yours. I trust yours were great
the other day.
Mr. Burton [presiding]. The gentleman's time has expired.
I'm going to yield my time to Congressman Shays.
Mr. Shays. I thank the chairman. I'm sorry, I thought it
was my time. I apologize.
Mr. Burton. I'm going to, in the event you need more time,
Mr. Shays.
Mr. Shays. I just want to give you, Mr. Ruff and Ms. Mills
and Mr. Lindsay, a different perspective and it comes from my
heart as it comes from yours, Ms. Mills. I participated in the
Hart hearings a few years ago and the Pierce scandal, and I
didn't know that it was my role then to defend the
administration. I was a new Member so I went after just trying
to find the truth, and so you had Republicans and Democrats
just trying to find the truth, not defending the witnesses,
just trying to find the truth. I've learned, I guess, that's
not the way it happens, and when Debra Gordene came to that
hearing and she declared--took advantage of her fifth amendment
rights all the Democrats in the committee were outraged that
she would want to hide something, and I was outraged, and so I
thought when Members would come before this committee that we
would see that same outrage on the other side of the aisle, and
we've now had 79 House and Senate witnesses asserting their
fifth amendment.
Now they can do that and it may mean they don't have
anything to cover up, but in my nonlegal way I begin to think
there's something behind that.
And when I read your statement, Ms. Mills, before you even
delivered it, I became so incensed by the focus on you and not
about getting at this issue that I've written out a statement,
and I've written out the statement so I don't say more than I
need to say.
So, Ms. Mills, you're not the only one disillusioned by
this process. I have been pushed from disappointment to anger
to outrage by the pervasive ethical and moral minimalism of
this White House. Among the important issues you omitted from
your list is respect for law and the affirmative obligation of
sworn officers of the court to disclose material facts to
properly constituted authorities. As much as you might not like
it, this committee is such a properly constituted authority.
While undoubtedly deeply felt, your statement conveyed to me a
profound lack of respect for this constitutional process, and
I'll say unlike the profound respect that I thought you showed
to the Senate. It's not enough for those in the White House you
defend to say no evidence has been found that anyone
intentionally sought to hide the e-mail system problems. That's
far too low a bar to set for yourselves, to convince yourselves
prematurely the problem was minimal, to hide behind the expense
and difficulty of the reconstruction project, to delay any
disclosure of a problem until forced by negative publicity. All
bespeak an ethical opportunism that allows by omission, if not
by commission, the obstruction of justice. For evil to prevail,
it is enough for good people to do nothing. I don't get the
sense much was done by the good people in the White House to
confront the potential evil flowing from the e-mail mess.
Now, I also remember some people at the White House. I
remember Billy Dale and John Drellinger, John McSweeney, Barney
Brasseux, Gary Wright, Robert Van Eimeren and Ralph Maughan. I
remember them. They were in the White House and they got fired,
and then to defend their being fired the FBI and the IRS had to
take a good look at them.
And I was looking at an old article, and this may have been
said in jest, Mr. Ruff, I know it was said in jest, but it has
an eerie feeling of strength to it. You were interviewed by Bob
Woodward when you, as the fourth and final prosecutor to
Whitewater, acknowledging initially it had gone on too long--
Watergate, excuse me, Watergate. This was an article written
June 19, 1977, in your admitted youth, and you were asked to
kind of describe where you fit in in all these committees that
had done investigation. You thought you would show up better
than the Warren commissioner and some of the other
commissioners that had looked, and then I'll read what Mr.
Woodward says. He says Ruff says there's nothing he has done to
protect himself from a more hostile view of the work of his
office. If called to testify some day at such an inquiry; in
other words, defending your committee's work, Ruff says he
knows just what he'll do, quote, I'd say, gee, I just don't
remember what happened back then and they won't be able to
indict me for perjury and that maybe that's the principal thing
I've learned in 4 years, I just intend to rely on that failure
of memory.
I know you said it in jest, but the words you used to
respond to questions, I don't recall, I don't remember, I
understood this is an issue and so on and don't remember if I
was at a meeting. The meeting, Mr. Lindsay, on June 19th, how
many people were at that meeting when you spoke to Mr. Ruff?
Mr. Lindsay. I don't recall, sir.
Mr. Shays. You don't recall if there's one, two, three,
four or five?
Mr. Lindsay. I remember that I talked with Mr. Ruff. I
don't remember if there was anyone else at that meeting.
Mr. Shays. Do you remember where you met?
Mr. Lindsay. I'm fairly certain it was in Mr. Ruff's
office.
Mr. Shays. You remember it was Mr. Ruff's office, you don't
remember if anybody else was in the office.
My time has expired. I'll come back.
Mr. Burton. Gentleman's time has expired. Who's on your
side? Mr. Kanjorski.
Mr. Kanjorski. Welcome once again to a committee of the
Congress. I suspect that you will have spent more time at
committee hearings of the Congress than most of the Members of
Congress after your respected service is done.
Ms. Mills, I've had the opportunity to look over your
statement, and unfortunately I wasn't here when you delivered
it because I would have imagined it would have been most heart
rendering to hear your statements. I have had the occasion of
watching your service for 7 years in the White House, and I
want to tell you that there are Members of this Congress that
appreciate what you've dedicated to this country and to this
President and that you have done it honorably, and the fact
that this Congress has been so frustrated with a dynamic
Presidency that they did not expect or did not think was
warranted in the election of 1992, that a good many years have
been spent with the sole intent of creating an aura around this
President that he was not worthy of the job and was not serving
America. You know I got to thinking about it as we went
tediously through questions yesterday, and some of my
colleagues on the other side, particularly the younger Members,
may not recall prior administrations, but in reality they have
succeeded in creating a new definition for political life in
America, and that is accusations, charges, unsubstantiated and
unproven, eventually will become labeled as scandals, and we so
often hear the media now say another scandal when in fact it's
another unsubstantiated charge.
And the purpose of this hearing some 7, 6 months before a
new Presidential election is because the majority of this
Congress have no other issues, and their hope against all odds
is that the American people will be foolish enough to believe
that charges alone represent substance and/or scandals in
themselves when in fact we know better as members of the bar.
The fact that you were called out of private service to
come up here and go over your memories and people on this
committee respond with the idea that, oh, you should have an
absolute perfect memory, both yourself and Mr. Ruff, of every
occurrence that happened in the throes of probably the second
most historical act against the Presidency, the last
impeachment, is beyond me. I have to think that you were all
working 18 hours a day, 7 days a week and were totally focused
and committed to the immediate issue of the trial and that you
didn't necessarily partake in checking out every factor or
every bit of information.
It is only too bad that because sometimes of the lack of
technical expertise of the American people and the appreciation
of what the new computer age is all about that this hearing
would even be here, the suggestion that oh, my heavens, there
where e-mails that were lost, isn't that a shocking surprise in
a perfect world, when we know that the instrumentality of the
computer is not perfect.
So, you know, as I listen to this testimony developed over
these 2 days, I'm becoming frustrated with the Congress myself.
I can't believe that we do not have more important issues as
the only oversight committee of the House of Representatives.
We have spent almost our full time for these many years in
doing nothing but attempting to denigrate the reputation of
those people that serve in the executive branch of this
government and the President himself and have added nothing
from this committee's work that I've seen over the last number
of years of a positive nature.
What have we done to solve some of the problems like
overexpenditures, fraud, misuse and abuse and Medicare? What
have we done to analyze the social security problems for the
future of the American people, which is all under the
jurisdiction of this committee, to oversight, what's happening
and anticipate what new legislation is necessary to solve real
problems of real people in their real lives. Instead for pure
partisan political purposes, there are people on this committee
and in this town that have now become to believe that
partisanship is a religion and it has to be practiced to the
fullest extent and in the purest nature, and they forget that
those of you that have tremendously talented lives that have
come to serve in this administration and perhaps lead the way
for other extraordinary people to serve future Presidencies
have to stop and think of whether they really want to do that
to themselves, their lives or their families or their personal
fortunes.
I'm so much aware through all of the Whitewater hearings
how many people spent more than their net worth just to be
represented by counsel so that they could have said that they
served a President of the United States.
Mr. Burton. The gentleman's time has expired. We are going
to recess to the fall of the gavel. We have two votes on the
House floor, and then when we come back Mr. Barr will be the
first questioner.
[Recess.]
Mr. Burton. The committee will reconvene. Mr. Barr, you are
recognized for 5 minutes.
Mr. Barr. Thank you, Mr. Chairman. I hate to interfere with
that love fest that was going on earlier, but somehow I don't
think that will come as a surprise. The fact of the matter is
that at least two of these witnesses and a third party, I don't
see the other Mr. Lindsey here, he was here earlier, have in
fact been found to have engaged in criminal violations of
Federal law by a Federal judge. That is a matter of record, and
the other side may not like it and may be irrelevant to them,
but in an order issued just recently, I think the end of May
this year, Judge Royce Lambeth found that Mr. Ruff, the other
Mr. Lindsey and Ms. Mills in March 1998 engaged in discussions
and advised the President to release the Kathleen Willey
letters in violation, clear, knowing violation of the Privacy
Act.
So for people to wander around in this Alice in Wonderland
funk and say that nobody has done anything wrong here and how
dare anybody impugn anybody's reputation, I'm not citing Robert
Kennedy, I'm not citing Mr. Waxman, I'm not citing Mr. Burton,
I'm not citing myself, I'm citing Judge Royce Lambeth. So let's
get real. There are some serious problems here. This is the
sort of conduct that concerns us.
Now, with regard to the issue immediately before us, which
relates to hundreds of thousands of e-mails subject to lawful
subpoena by at least two committees of this House of
Representatives, the Judiciary Committee conducting an inquiry
of impeachment, which again some people may find irrelevant,
funny, inconsequential. I know you all don't because y'all
participated in it and have very high regard I presume for the
process through which we went. It is very serious. The
information contained in the hundreds of thousands of e-mails
that have not yet been searched were also subject in large
part, in large measure to subpoenas issued by the Office of
Independent Counsel, again an office that y'all may not like,
y'all may not like the individual who headed that office, Judge
Kenneth Starr, but the fact of the matter is that there were
lawful subpoenas that were issued that related to the subject
matter of these hundreds of thousands of e-mails that y'all
knew had not been searched and had not been reviewed in order
to ensure a full, complete and timely compliance with subpoenas
lawfully issued and which were not subject to any defense for
noncompliance.
Mr. Lindsay, you testified when you appeared before this
committee a number of weeks ago that pursuant to a search of
some of the computers conducted by Mr. Robert Haas that a
significant number of e-mails, about 1,000 I think you
testified to, were in fact retrieved from this universe of e-
mails out there that you all knew were not subject to
retrieval, had not been reviewed, had not been retrieved, and
you testified that in July 1998 you took that relatively small
batch of e-mails, about 1,000 that he had printed out pursuant
to his search of the computers themselves, the hard disks I
believe, over to the White House counsel's office. Do you
recall that testimony?
Mr. Lindsay. The characterization as to the general
population of the e-mails, of that e-mail sampling that you're
referring to was taken from, I did not make any comment as to
the general population. I do not know now and I did not know
then----
Mr. Barr. That's fine. I'm not quibbling over how many. I
know that anything you say is like pulling teeth to get you all
to say anything, I realize that, and we'll just sort of take
judicial notice of that. These are the e-mails here. This is
about I'd say, what would you say, counsel, about 1,000?
Mr. Wilson. It's certainly at least that.
Mr. Barr. And counsel, these are a copy of the e-mails
retrieved by Robert Haas pursuant to and as he testified in
mid-1998 to determine the scope of the problem that was being
faced; is that correct?
Mr. Wilson. Correct, the White House produced these 2 days
ago to us.
Mr. Barr. OK. Is this the material, and I know you can see
them so obviously I'm not going to ask you to testify as to
what's in them, but is this approximately the size of the
materials, the number of pieces of paper you took over, as you
testified earlier under oath, to the White House counsel's
office in July 1998?
Mr. Lindsay. I did not count them when I brought them over.
Mr. Barr. I know you didn't count them. I'm not asking you
to count them. I said approximately. That's why I used that
term. You're not going to be held to a specific number.
Mr. Lindsay. Some number that approximates that.
Mr. Barr. OK. And at that point your memory utterly failed
you, according to your testimony last time, you have no
recollection at all of who you gave these some--and there is
approximately 1,000 documents in here, I'm not asking you to
verify that. Reflecting back and looking at this fairly
significant amount of documents, does that jog your memory,
your recollection? Do you recall at this time who you gave
those documents to in the White House counsel's office in July
1998?
Mr. Lindsay. No, I do not, sir.
Mr. Barr. Did you receive them, Mr. Ruff?
Mr. Ruff. I don't believe so. I have no recollection of
receiving them, Mr. Barr.
Mr. Barr. Did you receive them, Ms. Mills?
Ms. Mills. I did receive a batch of e-mails that were--that
represented the search that had been conducted. I did not
receive them from an individual other than my assistant, but at
that point what we did was forward them to another associate
counsel to review them to determine whether or not they were in
fact duplicative or whether or not they were not and had not
been captured in a prior search.
Mr. Barr. Are you satisfied in your mind----
Mr. Burton. Mr. Shays has time. I think he's going to yield
to you and I'm going to yield to Mr. Shays.
Mr. Shays. I am happy to yield to the gentleman.
Mr. Barr. Are you satisfied in your mind that we are all
talking about the same documents here?
Ms. Mills. As I haven't seen those documents, I don't know
what's in those documents. I'm not in a position to be able to
answer you correctly or honestly as to those documents.
Mr. Barr. You're always in a position to answer me honestly
I would hope.
Ms. Mills. Not honestly with respect to whether or not
they're the same documents that I got. I don't know.
Mr. Barr. And I'm not asking about these specific
documents. What I'm simply asking is about the documents to
which we're referring, in other words, a batch of documents, e-
mails, hard copies of e-mails printed out that were transmitted
personally by Mr. Lindsay to the White House counsel's office,
as he's testified to in prior appearance before this committee
in July 1998.
Ms. Mills. OK. I was not aware that he personally provided
the materials, but I know that the e-mails came to our office.
Mr. Barr. OK. And who conducted the review of those e-
mails?
Ms. Mills. Shelly Peterson, who's an associate counsel in
our office.
Mr. Barr. And what conclusions did--is that Mr. or Ms.?
Ms. Mills. It's a Ms.
Mr. Barr [continuing]. Did Ms. Peterson arrive at
concerning those e-mails and whether or not they were subject
to any of the subpoenas that had been served on the White
House?
Ms. Mills. Ms. Peterson, to my understanding, reviewed the
documents to determine whether or not they were duplicative
with respect to documents we had produced or whether or not
there were in fact new documents that were there that had not
been produced.
Mr. Barr. And?
Ms. Mills. She concluded that the materials were
duplicative of materials that had been previously been
produced.
Mr. Barr. In other words, they were identical in every
regard, every single respect to documents that had already been
furnished to the folks who had--whatever entity had issued the
subpoenas?
Ms. Mills. Without addressing the characterization of your
question, it was my understanding that these e-mails were
duplicative and had in fact been produced.
Mr. Barr. And therefore who made the determination not to
send those documents to the authorities that had subpoenaed
them?
Ms. Mills. Well, the authorities that had subpoenaed them
had them.
Mr. Barr. Did you ask them if they had them? You made the
determination that they did or Ms. Peterson did?
Ms. Mills. Well, when we do a document production we then
keep a copy for ourselves of what we sent to the individual
that's requesting.
Mr. Barr. Let me make you all aware of a problem that we
ran into yesterday, which is one reason why we're trying to ask
very specifically about duplicative records, for example. We
had print copies of e-mails and I think you all may have them,
for example exhibit 81, which is an e-mail that had a blank in
it, and it appeared as if there was some information missing
from it. Now Mr. Heissner, the author of that particular e-
mail, testified to, and I'm not saying whether it's accurate or
not, he testified that the e-mail that was presented to us,
which is exhibit No. 81, was identical with another e-mail that
might be found if we went back and searched the backup records
for the ARMS system, although it might appear differently
because the way he printed it out didn't pick up some of the
graphics in it. It might have listed things a little bit
differently, the spacing might have been different, so forth.
In other words, you can take two documents that have the same
information on them, but it might be formatted a little bit
differently.
As a trained attorney you would recognize certainly the way
information is formatted might have a bearing on the accuracy
of the information, how it's interpreted, would you not?
Ms. Mills. Well, I think that what you're asking is when
you asked as to or question whether or not they're identical or
not, I obviously did not conduct the review but it is my
understanding Ms. Peterson went through the materials and made
the determination that these were duplicative of materials that
had been produced.
Mr. Barr. What would be the legal theory under which you
would not or the ethical theory or the practical theory under
which you would not just go ahead and send them in
overabundance of caution just to make sure that there was no
problem, that you would have this batch of documents and say,
well, these are subject to subpoena, it may very well be that
some of these or maybe all of these in one form or another have
been transmitted but they are subject to a lawful subpoena and
then we're just going to go ahead and send them? Wouldn't that
be the more prudent, more ethical course of conduct?
Ms. Mills. Well, one thing we are obviously cognizant of is
how much paper and materials everybody is getting. So to the
extent that----
Mr. Barr. Y'all are looking out for the taxpayers.
Ms. Mills. No. Actually I wasn't going to say that but
obviously that's something to be thoughtful about as well. So I
appreciate you making that observation as well. But to the
extent that there are materials that we've already sent
individuals, it's probably challenging to send them more to
think that potentially they're getting something that they
don't already have, and so in this instance because Ms.
Peterson was able to determine that these materials were
duplicative there was no reason to send them another copy of
materials that they had.
Mr. Barr. Who reviewed or approved her decision?
Ms. Mills. Well, we have no reason--I mean I don't know how
to answer that question. I mean, Ms. Peterson has the skills
and the ability as a trained attorney.
Mr. Barr. The answer would be nobody.
Ms. Mills. Well, she certainly conducted her research and
went through and did it in a fashion that would be consistent
with what we understand to be or----
Mr. Barr. I know Mr. Waxman is getting antsy over there.
We'll save the questions for additional time.
Mr. Burton. That is fine. Mr. Waxman, I would like to
remind you that when you had 30 minutes I let you guys run over
almost 4 minutes, but we'll give you your 5 minutes now.
Mr. Waxman. Your generosity overwhelms me. We've had Mr.
Barr with two 5-minute segments, and the rules of the House
entitle me to have my 5 minutes and I want to have my 5 minutes
now. I'd like the clock started over again.
Mr. Burton. You're getting your 5 minutes, Mr. Waxman.
Mr. Waxman. Mr. Lindsay, I'd like to revisit some of your
testimony about your understanding of the MAIL2 problem.
Mr. Lindsay. Yes, sir.
Mr. Waxman. I think you were pretty clear when you
testified about this previously, but there seems to be some
misunderstanding about it. You said that you were informed
about the MAIL2 problem in June 1998 and after you were
informed about it, you promptly informed the White House
counsel's office. You then assisted in a search for e-mails
relating to Monica Lewinsky and that you had this to say about
the search, ``I believed the non-ARMS managed e-mails were
searched. I now understand though that I did not understand it
then that the backup tapes containing the e-mails may never
have been searched.''
Later you heard back from the White House counsel's office
that the Lewinsky search had produced only duplicates of e-
mails already turned over, and this led you to think, again
your words, it probably isn't that big of a problem because
this information has already been produced, end quote. So you
concluded that there may not be a legal problem in terms of
whether or not documents were produced, but I still had a
problem, and that was I still had a technical staff that
reported to me that there was a glitch. Even if that test came
back in a positive way, I may have not had a production problem
but I had a technical problem because my e-mail system and my
ARMS system and how they worked together, that was the issue I
needed to resolve. That was again your statement.
I think your testimony's pretty clear on this point. You
were concerned about the problem initially. You notified the
White House counsel's office, and when they informed you that
the problem had not affected document productions, your
concerns were put to rest. The concern that you did have was
that for reasons relating to the Presidential and Federal
Records Act you still needed to reconstruct and archive the
missing e-mails, but this was not a high priority and since you
knew that you would have time to do that for archival purposes
later.
Is that an accurate statement, Mr. Lindsay?
Mr. Lindsay. Yes, it is, sir. It's important to know also
that we are in the process of conducting reconstruction for
years of e-mails from the Reagan administration, the Bush
administration, from the early Clinton administration. So the
process of reconstruction is one that--was one that took many
years and people in the committees and whatever were familiar
with the fact we were conducting those activities.
Mr. Waxman. Mr. Lindsay, yesterday the chairman accused the
White House of trying to delay the reconstruction of the MAIL2
e-mails until after the election in November. He said that the
White House was trying to, quote, run out the clock. Is that
accusation accurate?
Mr. Lindsay. It is absolutely not correct, sir.
Mr. Waxman. What has the White House done to ensure that
the e-mails are reconstructed and produced as soon as and as
efficiently as possible?
Mr. Lindsay. When I met specifically and gave direction to
my staff, my instruction to them was that they were to conduct
the reconstruction as quickly as possible in accordance with
the request by this committee and by other bodies to have this
work done as quickly as possible. I told them to conduct that
and to essentially give me a schedule for production or
reviewing these materials and making sure that they were
reconstructed on a 24-hour, 7-day a week schedule if necessary
to make sure that it was done as quickly as is humanly
possible.
Mr. Waxman. And when do you anticipate making these e-mails
available to our committee?
Mr. Lindsay. It is going to be completed on a rolling
basis, but I believe in the June timeframe will be the first
time we'll be able to produce some information from the
reconstruction process.
Mr. Waxman. So rather than delaying production, you're
going to turn over documents as you produce them?
Mr. Lindsay. Absolutely, and as a matter of fact many of
the contractors that we tried to get to do this work protested
by the fact that what we were doing was such an ambitious and
such a speedy schedule that they declined to participate and to
even bid for the contract.
Mr. Waxman. Just so we have this very clear, my
understanding is that the reconstruction project is scheduled
to be completed by Thanksgiving. That does not mean, however,
that the reconstructed e-mails will not be produced until
Thanksgiving. Document production will begin long before then.
All that it means is that the final stages of the e-mail
project which involve putting the reconstructed e-mails into
ARMS for archival purposes will be completed then. The actual
reconstruction of the e-mails, the placing of those e-mails
into a searchable data base and the production of e-mails to
our committee will begin well before that date and well before
the election.
Is that an accurate statement?
Mr. Lindsay. That is true, sir.
Mr. Waxman. I just think that ought to be clear to
everybody so we don't keep on hearing these accusations.
One more point, I understand that decisions about what
materials will be produced first will be made by the White
House counsel's office in consultation with our committee and
other investigative committees; is that correct?
Mr. Lindsay. I believe so, sir.
Mr. Waxman. Thank you.
Mr. Burton. The gentleman's time has expired. We were told
initially that probably the e-mail problem, in compliance with
our subpoenas, would be handled by September, and yesterday we
were informed that it would be the Monday before Thanksgiving,
which is after the election. The White House counsel's office
I'm sure will be the one that will be charged with the
responsibility of giving us e-mails as they are produced, and
the reason I made the statements I did yesterday was because of
the track record of the White House counsel's office in
complying with subpoenas and working with this committee to get
the facts out to the American people. So I don't believe I
misspoke yesterday.
I'll believe we're getting the e-mails in an orderly
fashion when I start to see them rolling off the presses,
coming through the counsel's office and given to us. Up to now
we have not seen that kind of cooperation from the White House
counsel's office going back to Mr. Ruff, and I will now yield
to Mr. Barr. Excuse me, Mr. Barr. Did you want the time, Mr.
Barr?
Mr. Barr. Thank you, Mr. Chairman. One of the--this is just
one subpoena that I know you are all familiar with. It's dated
September 15th or September 1, 1999. It is a subpoena duces
tecum from this committee addressed to the Executive Office of
the President, Cheryl D. Mills, and it simply has an attachment
that subpoena is returnable 2 weeks later, September 15, 1999.
It has attached to it schedule A, which is two pages of very
standard language, and that's really what I wanted to ask you
all about, and then a third page of schedule A which has to do
with the specific subject matter of the subpoena, in this case,
the Puerto Rican terrorists.
If y'all would glance at the first two pages, please, of
schedule A, which is the definitions and instructions, and if
y'all could let me know if that has been y'all's view of
standard language which accompanies subpoenas duces tecum in
order to identify in very, very broad terms the types of
information that are covered by the subpoena.
Mr. Ruff.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T9621.618
[GRAPHIC] [TIFF OMITTED] T9621.619
[GRAPHIC] [TIFF OMITTED] T9621.620
[GRAPHIC] [TIFF OMITTED] T9621.621
[GRAPHIC] [TIFF OMITTED] T9621.622
Mr. Ruff. Let me just note initially that September 15th is
about a month and a half after my departure from the White
House, but without having had the opportunity to either read it
carefully or to compare it with other subpoenas from this
committee, it appears on its face to be comparable to similar
documents that the White House received during my tenure.
Mr. Barr. Thank you. Ms. Mills.
Ms. Mills. I agree.
Mr. Barr. The language, and I might ask counsel, Mr.
Wilson, is the language contained in the first two pages of
schedule A what is referred to in the legal profession as
boilerplate language?
Mr. Wilson. Yes, it is.
Mr. Barr. OK. In other words, this is standard language
that would be included in subpoenas duces tecum in order to
ensure to the greatest extent possible that the recipient of
the subpoena has to comply and look for all copies, all
versions of various documents or records? In other words, this
language is intended to reach as broadly, not as narrowly, as
possible?
Mr. Wilson. That's correct.
Mr. Barr. Would it also be counsel's understanding of the
law and the practice of the Congress certainly in issuing
subpoenas duces tecum that when a subpoena duces tecum such as
this one before us, and I would ask unanimous consent to
include this in the record----
Mr. Burton. Without objection.
Mr. Barr. Are such subpoenas duces tecums and the language
contained in schedule A, which is standard boilerplate
language, are they intended to reach all different copies of
something that might contain the subject matter, the
substantive subject matter, relate to the substantive subject
matter of the subpoena itself?
Mr. Wilson. Yes, the language is intended to reach
different copies.
Mr. Barr. And in this case, for example, it's my
understanding, and if you would confirm this, please, Mr.
Wilson, that this subpoena issued in September 1999 would have
covered--was intended to cover what we now know to be e-mails
that were not furnished to the committee because they were
among those many thousands that were not captured in the ARMS
system?
Mr. Wilson. Yes, it was. If I could explain one thing very
quickly, though, there have been times when the White House has
come in and explained to us that there are certain categories
of documents that they will not produce, for example, newspaper
clippings, and sometimes we've made agreements. They're
generally reduced to writing and it's known in advance. So
that's a very important thing to understand, that sometimes
there are things committed to paper in advance of the
production of documents.
Mr. Burton. The gentleman's time has expired. Mr.
Kanjorski.
Mr. Kanjorski. I have no questions.
Mr. Burton. Mr. Kanjorski passes. Mr. Ford.
Mr. Ford. I took up all of Mr. Waxman's time. I will be
happy to yield to him. I don't have any further questions.
Mr. Burton. The gentleman passes. We'll now go to Mr.
Shays.
Mr. Shays. I'm happy to yield to my time to allow the
gentleman to finish.
Mr. Barr. Thank you. If I could engage counsel a little bit
further, given his familiarity with the procedures of this
committee and his knowledge as counsel generally with regard to
subpoenas issued by a committee of the Congress to the
executive branch, would it satisfy the committee--would it
satisfy you as counsel for the committee that some documents
but not all documents were searched in order to ensure
compliance with this lawful subpoena issued by this committee?
Mr. Wilson. Absolutely not.
Mr. Barr. And why is that?
Mr. Wilson. Well, there is the expectation, unless there is
something communicated to us to the contrary, that all
available sources of documents are searched, and something I
might point out, to this day the White House has not
communicated to us that they have not done that. The e-mail
problem that we're talking about today, they have yet to
communicate to us that they have not searched in the backup
tapes for material responsive to the various subpoenas issued
by the committee.
Mr. Barr. Mr. Chairman, just a few moments ago in
questioning of the witness I showed this very large, and I know
that in dealing with this administration that one always has to
qualify and I know these things are all relative, but this very
large batch of e-mails, and I have just leafed through them
since we've not had time to go through them in detail, and I
assume the independent counsel's office will be going through
them in some detail, but contained in here are e-mail after e-
mail after e-mail concerning or from or to Monica Lewinsky
clearly which would have been covered by various subpoenas that
had been issued. We also have the subpoena duces tecum that
I've introduced into the record here which is one of many
issued by the committee in this case regarding another very
important matter before a duly constituted committee of the
Congress and that is the pardons granted by the President to
Puerto Rican terrorists.
And in one case, the case of the Lewinsky materials which
were subject to subpoena by the independent counsel and the
Judiciary Committee in its impeachment inquiry, we know that
there are, at least on simply one particular day that these
records were searched by Mr. Haas, approximately 1,000
documents that were never furnished to the impeachment
committee or apparently to the independent counsel. And as I
say, I think that from what I read in the newspapers is
certainly something that is of concern to the independent
counsel; that is to say, nothing about all of the other days
that were not searched and all of the other individuals whose
names were not queried of the computer. This is just, I
believe, one or two names, actually Raines and Monica Lewinsky.
And in the case of the Puerto Rican terrorist question, we
don't know at this point how many documents were not searched,
and therefore, we're not even at the point where we have
somebody saying somebody else at the White House did look at
these and please trust us, they said they were all exactly
identical.
So I think there are a lot of very, very important
unanswered questions here, and as I said yesterday at the
hearing, I appreciate very much, Mr. Chairman, your going into
these matters, and hopefully at some point in the not too
distant future we will have better answers than we've received
so far.
Mr. Burton. Thank you, Mr. Barr. Mr. Shays, do you wish to
have the rest of your time or do you want to yield it back
right now?
Mr. Shays. I'd like more time, so I'll start now.
Mr. Burton. Go ahead.
Mr. Shays. Thank you.
Getting back, Mr. Lindsay, you learned about the letter 2
problem--Mail2 problem in June. And you thought this was a
serious problem or you didn't think it was a serious problem?
Mr. Lindsay. When I was first told about the problem, I did
not know the breadth or scope of the issue. My instruction to
my staff was to investigate and conduct a review to try and
identify the breadth and scope of the problem.
Mr. Shays. You waited to meet with Mr. Ruff until you knew
that, the depth of the problem.
Mr. Lindsay. I waited--I conveyed the information to Mr.
Ruff when I had some information. At the time I talked to Mr.
Ruff, I did not have a complete picture. And frankly, as we
move forward, it's a fairly technically complicated issue, we
discovered new little bits of information as we move forward.
But, generally, the sum and substance of the information that
was contained in the memorandum of June 18th or 19th fairly
accurately states the state of knowledge that we had at that
time.
Mr. Shays. And so you were aware that----
Mr. Burton. I'm going to yield the gentleman my time for
this round--oh, it's Mr. Barr's time. You want to yield to Mr.
Shays?
Mr. Barr. I can hardly not do that. I yield my time to the
gentleman from Connecticut.
Mr. Shays. So you knew there was a potential problem with
certain e-mails that may not have been captured. You just
didn't know how many.
Mr. Lindsay. Sir, I want to place that into context. I had
potential problems with computer systems and with e-mail issues
frequently. We had an antiquated system that we are working
very diligently to make improvements on, and I took them all
seriously.
Mr. Shays. That you had a serious problem with not being
able to retrieve e-mails, I'm just asking if you were aware of
that. And, you know, I'm going to say right out, Mr. Lindsay, I
don't think in my mind that these were done intentionally. What
I want to know is, once the problem was discovered, what was
done about it and who was notified. So I'm not going to get
into whether you had an old system or new system, a bad system,
a good system, but you were aware that some e-mails were not
being captured, isn't that correct? I mean, do we have to play
games on this?
Mr. Lindsay. It's not a game, sir. It's very, very
important to understand that it isn't a simple question of
whether or not e-mails were being captured one way or the
other. The information that was reported to me was that
information of what people believed to be the case at that
time.
Mr. Shays. That what?
Mr. Lindsay. That e-mails weren't being captured.
Mr. Shays. Good. So we've arrived at the point, that e-
mails weren't being captured, right?
Mr. Lindsay. Yes, sir.
Mr. Shays. What's the significance of that?
Mr. Lindsay. The significance of it, from a technical point
of view, is that there was an operation of the system that
probably wasn't working the way that it should.
Mr. Shays. How about from a legal point of view, given that
the White House was required to capture e-mails and identify
ones that fit the request of this committee and Mr. Starr's
work and the committee on impeachment, the Judiciary Committee.
Mr. Lindsay. It would be an inappropriate legal conclusion
to come to on my part or anyone's part that information--
because the information was not captured or may not have been
captured----
Mr. Shays. I didn't ask for a conclusion.
Mr. Lindsay [continuing]. That it wasn't produced.
Mr. Shays. I didn't ask for a conclusion. What I was asking
was--is whether there was the potential that information wasn't
being captured that was important to fulfill a legal
requirement.
Mr. Lindsay. I presume that that potential was there.
Potentially. Hypothetically.
Mr. Shays. So--and I hope so. Because you're in charge of
the Office of Administration, and I think that you were
requested to provide relevant documents to various parties,
through Mr. Ruff's office and others, correct?
Mr. Lindsay. That is correct, sir. But there are other ways
of providing the information. Keep in mind that this
information very well could be--they're duplicates that are
kept in three locations.
Mr. Shays. I do hear you. But a little radar, something
went off and said we may have a problem here. And it's--we may
have not identified all our e-mails, we may not have identified
all our e-mails, we may or may not, correct?
Mr. Lindsay. I did not come to that conclusion. My issue
was to convey to the counsel's office the fact that this glitch
had occurred and that it had the potential, hypothetically, for
causing an interference in terms of people's understanding of
what they could get from the ARMS system. That does not mean
and I did not make a representation about any other source.
Mr. Shays. You answered the question. There are people that
needed things from the ARMS system, and you are now aware that
you've got a problem, and you thought it was enough of a
problem to talk to Mr. Ruff. Why did you think you needed to
speak to Mr. Ruff?
The good thing is you remember meeting with Mr. Ruff. You
think you met with him in the office. You just don't know who
was at the meeting.
But now I want to ask you what you told him. I first want
to know why you went to see, and I want to know what you told
him.
Mr. Lindsay. I was directed by my boss's boss to talk to
Mr. Ruff. That's why I talked to Mr. Ruff.
Mr. Shays. And your boss's boss? Who's your boss?
Mr. Lindsay. Ada Poze.
Mr. Shays. And your boss's boss?
Mr. Lindsay. Virginia Apuzzo.
Mr. Shays. Now why did they want you to tell Mr. Ruff?
Mr. Lindsay. Because it was a technical issue and they
wanted the information to be conveyed quickly and to take the
time to explain all the details of it through them.
Mr. Shays. And Mr. Ruff's in charge of how to operate the
computers, he's the technical guy on how to operate the
computers, that's why you did?
Mr. Lindsay. No, sir.
Mr. Shays. You had a technical problem. You needed his help
to fix it.
Mr. Lindsay. No, sir.
Mr. Shays. Obviously not. So why did you tell him?
Mr. Lindsay. I was directed by the Assistant to the
President for Management and Administration to do so.
Mr. Shays. You don't know why he directed you to.
Mr. Lindsay. It's a her, and I believe it was because this
issue affected the ARMS system and there was a potential--
because of the potential of the impact that it could have on
searches.
Mr. Shays. So we are--it's taken me about 5 minutes to have
you acknowledge that there was a problem with the potential to
do searches. Correct? That's what you said now. Finally, we got
to point that you could have just said right off, but we're
playing this little game to get to a point.
I have a red light. I'll just wait.
Mr. Burton. The gentleman's time has expired, and I
appreciate the patience of the gentleman from Connecticut.
Mr. Hutchinson.
Mr. Hutchinson. Thank you, Mr. Chairman.
I want to extend greetings to Mr. Ruff and Ms. Mills. It's
been some time since I've had an opportunity to visit with you.
And I listened to your testimony, Mr. Ruff, and I haven't been
here all today, and I haven't looked at all the materials, but
I have not seen anything that would indicate any evidence of
intentional conduct on your part or Ms. Mills' part that would
indicate a desire to cover up or failure to comply with
subpoenas.
And I just wanted to lay that out. I'm not making those
allegations. You're an officer of the court, and I think that
any time we look at your obligation to comply with subpoenas we
ought to be careful before we jump to conclusions on it.
But I am concerned from a number of standpoints. I think
there's some legitimate points of inquiry. Again, as officers
of the court, subpoenas and the production of documents is a
very important part of our legal system; and, without any
question, certain servers were not reviewed for compliance with
the subpoenas; and so, even to this day, we do not know whether
all the relevant documents have been produced. Is that a true
statement, Mr. Ruff?
Mr. Ruff. I don't have firsthand knowledge, obviously,
Congressman, but that's my understanding from reading the
record.
Mr. Hutchinson. Correct. And you're not there day to day
now.
Mr. Ruff. No, I view that as a blessing.
Mr. Hutchinson. Which is, I'm sure, to your relief. But we
don't have them today. I think that determining the reasons for
it and what we need to do to correct it is very relevant to our
judicial process today and there's certainly some ongoing
investigation.
Second, I think it is very relevant to determine what the
causes were for it and whether there was due diligence in
complying with it. And I hear--again, it certainly didn't
indicate anything that would indicate intentional conduct, but
I did sense a little bit that would give me some concern about
a matter of diligence and perhaps a more of a cavalier attitude
toward getting the information. I know there was a lot going on
in life at that particular point, but that is a concern. You
know there were investigations going on that wanted this
information. It was not being retrieved. And this exhibit 1,
which is the memo from Virginia Apuzzo which you received, is
that correct?
Mr. Ruff. That's correct, Congressman.
Mr. Hutchinson. That in reading it would certainly point up
to me a problem.
Mr. Ruff. Indeed.
Mr. Hutchinson. And then you assigned it to different
people who ultimately wound up with a technical person to do
some testing, and we don't know who that is.
Mr. Ruff. I do not know who conducted the test, no,
Congressman.
Mr. Hutchinson. And at any point did you believe that this
is information that should be provided to the requesting
authority such as the Congress, the independent counsel or the
Department of Justice?
Mr. Ruff. My state of mind is, in essence, as I've
previously described it, was that I recognized that there might
indeed be a problem, as has been expressed; that it was
important to find out whether this problem indeed had affected
anything we had done or not done previously; that when the
report came back to me on the test that had been run, I
concluded--I understood that that suggested that there was no
such adverse effect on what we had done previously.
Obviously, my understanding was incorrect in the sense that
I now recognize that there is a body of material out there
about which I do not have any details that had not, in fact,
been searched or had not, in fact, been retrieved. But my view
at the time was very clear in my memory that indeed when the
report came back to me on the materials that had been searched
and the duplicative nature of what had been produced I believed
that the problem had not affected us. And that may well have an
erroneous conclusion, but it was my conclusion.
Mr. Hutchinson. How would you have failed if in your
defense of the President you had requested certain documents
from the Congress or from other body and then you had come to
find out that they were never produced?
Mr. Ruff. Obviously, I would not have been happy about
that.
And I think the point you make is an absolutely solid and
important one. This committee has every obligation to inquire
into the circumstances surrounding those events in order to
determine, first, whether indeed there was any impropriety--and
I am firmly of the belief that there was none; second, to
determine whether there's a systemic problem that needs to be
corrected; and, third, whether the White House is responding
appropriately to the committee's concerns. I view all of those
as entirely legitimate inquiries, and we're doing our best to
try to respond to them.
And presumably I would have reacted the same way if I asked
any adversary or any third party for a set of documents. I
would want to know why they weren't produced. That's an
entirely appropriate inquiry for you to make.
Mr. Hutchinson. With your very succinct statement as to the
legitimate purpose of this inquiry I'm going to yield back the
time. I know you have all been here a long time. Thank you.
Mr. Burton. We have a vote on the floor. We'll stand in
recess at the fall of the gavel.
[Recess.]
Mr. Burton. I want to apologize to our witnesses for the
interruption, but that's the way the legislative process works.
So we'll now yield to--who's next on there? Mr. Shays? It's my
time. OK. I will yield to Mr. Shays.
Mr. Shays. Thank you.
Mr. Lindsay, I have five slots, and I'm not trying to trick
you, and I know you're trying to be precise, but it really took
us a long time to get to this point. That you met with Mr. Ruff
to tell him about the problems, a technical problem that
prevented you to capture certain e-mails. And you knew this was
a potential problem for Mr. Ruff because he needed--there were
issues--there were certain e-mails you needed to capture and
there were potentials there.
Mr. Lindsay. Yes, sir.
Mr. Shays. So when you went to Mr. Ruff you believe you met
with him in his office, but you don't know if anyone else was
there. And that's correct.
Mr. Lindsay. That's what I testified to this time. That's
what I testified to on the 23rd also.
Mr. Shays. And that's correct.
Mr. Lindsay. That is correct, sir.
Mr. Shays. And you're telling us that your boss's boss told
you to disclose this information to Mr. Ruff.
Mr. Lindsay. That is correct, sir.
Mr. Shays. And you were saying it was a technical problem,
but you didn't go to Mr. Ruff because he had any technical
expertise with resolving the problem. He needed to know what?
Mr. Lindsay. Excuse me, sir?
Mr. Shays. He needed to know what? You weren't there to
have him fix the computers. It was a technical problem in the
computers that prevented certain e-mails from being captured
and so you didn't go to him to help you with the technical
problem.
Mr. Lindsay. That is correct, sir.
Mr. Shays. You went to disclose information. What was the
information you went to disclose?
Mr. Lindsay. The impact of the technical problem on
something that Mr. Ruff had an interest in.
Mr. Shays. OK. And what are those things that he had an
interest in?
Mr. Lindsay. ARMS searches.
Mr. Shays. OK. And, Mr. Ruff, if you would tell me, what
was the impact of this? I mean, in other words, you're being
told that certain information isn't being captured, that you
had thought you had--we had captured all the e-mails, all the
correspondence, all the relevant information is being forwarded
on to the relevant parties, and your word is golden in this
committee and in Congress. So did you not begin to wonder if
you had to come back? Let me say this. What was your reaction?
Mr. Ruff. I think my reaction is as I've described it,
Congressman, which is that my first concern was to determine
whether whatever problem it was that existed--and you're quite
correct in not attributing to me any technological knowledge or
understanding--whatever problem existed, did it or did it not
have an impact on searches we had already conducted.
The most immediate point of concern, because it was the
nearest in time and in June 1998 the most sort of prominent, I
think, in all our minds in the counsel's office, was whether it
had affected our search for Lewinsky-related material.
Thereafter--and as I've indicated I can't trace for you the
process that got from my concern to the framing of a search
request that went back to the Office of Administration. But it
was my belief that such a search was being conducted to
determine whether indeed we had made the proper search and the
proper production or whether there was a problem we needed to
address.
Mr. Shays. Did you give out certain fairly strong requests
for--to ascertain the extent of the problem? I mean, did you--
did you recognize that this could be a challenge that needed to
be dealt with quickly?
Mr. Ruff. Indeed. And that was the purpose for conducting
the search that was being conducted, to determine whether--
immediately and as rapidly as possible to determine whether or
not something had happened that would require us to take
corrective action.
Mr. Shays. Did you impress upon Mr. Lindsay that this was
an important issue?
Mr. Ruff. I don't think there was any need to impress on
Mr. Lindsay that. I think both of us understood that the very
fact that a memo had gone from Ms. Apuzzo to the deputy chief
of staff and that Mr. Lindsay was meeting with me on it meant
it was an important problem.
Mr. Shays. So you agree, Mr. Lindsay, it was an important
problem?
Mr. Lindsay. Yes.
Mr. Shays. OK. And the problem was from your side you had a
technical problem which meant certain e-mails weren't being
captured. The problem from Mr. Ruff's side was he had
information he needed to get to various parties. You made
reference to one, Judiciary Committee, I'm assuming, or Mr.
Starr.
Mr. Ruff. Mr. Starr.
Mr. Shays. Mr. Starr as it related to a particular
individual. So this would be, I would think, a memorable
meeting, true.
Mr. Ruff. The fact of the meeting is memorable, but witness
my already stated failure of recollection with regard to the
specifics of the conversation. I fear not memorable in terms of
exactly what it is that Mr. Lindsay told me and what I said to
him.
Mr. Shays. I would love more time or who is next.
Mr. Burton. Or who was there.
Mr. Ruff. Let me just address that momentarily. Because I
said in my interview with the committee that I thought Ms.
Mills was there but couldn't vouch for it. It's been suggested
that because my time planner, my calendar, had Ms. Mills' name
on it that she must have been there. Let me just make it clear,
if it's not already, that that is a preplanning calendar and
not a reflection of what actually happened. So that as I think
back on it and looking at that calendar, candidly, and I
initially assumed that she was there, however, I take it
absolute face value her recollection that she was not, and my
assumption at the moment as we go forward is that it was Mr.
Lindsay and I.
Mr. Burton. Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
To Mr. Ruff, Ms. Mills and Mr. Lindsay, thank you for being
with us today. I can only echo the comments that have been made
on this side, particularly by my colleague, Mr. Ford, with
regard to your service to this great country.
I might take just a note--make a note, Ms. Mills, that as a
father of a 17-year-old young lady, first-year student at
Howard university, my daughter was very moved by your
presentation when you represented the President of the United
States; and it left a mark on the DNA of every cell of her body
to be the very best that she could be. I want to thank you for
all that you are.
And I also want to thank you for your opening statement,
which is probably, if you heard us on this side you would hear
almost your same words, not as eloquent, but your same words.
Because I've sat now on this committee for 4 years and so many
of the problems that trouble our young people, so many of the
problems that trouble this Nation are never addressed here.
Never addressed. We don't spend 1 second addressing them while
we spend all this time and money addressing things like we're
addressing today. But be that as it may, I thank you.
Mr. Lindsay, let me just ask you a few questions. Even
after 3 days of hearings it seems there's still some confusion
about the nature of the e-mail problem we're discussing. I
would like for you to help me clarify this.
Mr. Lindsay. Yes, sir.
Mr. Cummings. Did the problem with the Mail2 server affect
all e-mails in the White House?
Mr. Lindsay. No, it did not, sir.
Mr. Cummings. As I understand the problem, it resulted in
incoming e-mails to certain White House employees not being
properly archived. This does not mean that those e-mails were
not produced, however. There are other ways those affected e-
mails may have been made into ARMS, made into ARMS. For
example, anytime a person responded to an e-mail with history,
that entire response containing the original incoming message
would have been automatically sent into ARMS, is that correct?
Mr. Lindsay. That is correct, sir.
Mr. Cummings. Furthermore, if an incoming e-mail was sent
or cc'd to any nonaffected user in the EOP or if it was
forwarded by the recipient, then it would also be in ARMS, is
that correct?
Mr. Lindsay. That is correct, sir.
Mr. Cummings. We've established that the problem was
limited to incoming e-mails to certain White House users, and
some of those same e-mails could have been archived into ARMS
anyway.
Mr. Lindsay. That is exactly correct, sir.
Mr. Cummings. In addition, many e-mails that did not get
properly archived may still have been produced, and that's a
very important point. We've been told by Mr. Ruff and Ms. Nolan
that any time the White House receives a subpoena or document
request a search is conducted of ARMS. In addition, however,
all relevant individuals are asked to search their own computer
records, so any e-mails that were saved would have been
produced regardless of whether or not they were archived in
ARMS, isn't that correct?
Mr. Lindsay. That is exactly correct, sir.
Mr. Cummings. Now, there's been a lot of loose talk about
the hundreds of thousands of missing e-mails. Representative
Barr made statements to that effect today in this very hearing.
Do any of you have any idea how many e-mails may have been
missing from ARMS?
Mr. Lindsay. I do not, sir.
Mr. Cummings. Ms. Mills.
Ms. Mills. I do not.
Mr. Cummings. Mr. Ruff.
Mr. Ruff. No, sir.
Mr. Cummings. Is there any way of knowing how many e-mails
were not produced?
Mr. Lindsay. Not to my knowledge, sir. You would have to
complete the reconstruction process to actually get an
assessment as to what that number is.
Mr. Cummings. Do any of you have any knowledge about the
content of those missing e-mails?
Mr. Lindsay. No, I do not, sir.
Ms. Mills. I do not, sir.
Mr. Ruff. I do not, Mr. Congressman.
Mr. Cummings. Is there any way of knowing the content of
the missing e-mails?
Mr. Lindsay. Short of reconstruction or actual examination
of those e-mails after reconstruction, no, there is not.
Mr. Cummings. So any speculation about the number or the
content of the missing e-mails is just that, speculation; is
that correct?
Mr. Lindsay. Yes, sir.
Mr. Cummings. Now, Mr. Lindsay, I would like to--like you
to help me out with the document that has been cited several
times during our hearings. It is exhibit 62. It is a document
dated--are you familiar? It is a document dated June 18, 1998
and is apparently the results of a survey conducted by Northrop
Grumman contractor Bob Haas who looked at the White House e-
mail network to determine how many e-mails were archived in
ARMS. Are you familiar with this document?
Mr. Lindsay. Generally familiar, sir.
Mr. Ford. What exhibit number is that?
Mr. Cummings. That's exhibit No. 62.
Now Mr. Haas apparently came up with 246,000 e-mails that
had not been archived in ARMS. Some people have suggested that
this means that those 246,000 e-mails were missing or they were
not produced. That's just plain wrong. Mr. Haas was looking at
e-mails that were still on the White House's computer network.
Those e-mails may not have been in ARMS, but they have been
saved by the recipient. This means that every 1 of those
246,000 e-mails should have been searched and, if responsive,
produced when people were told to search their own files in
response to the document request. Is that correct, Mr. Lindsay?
Mr. Lindsay. That is exactly my understanding, sir.
Mr. Cummings. I see we've run out of time. Thank you very
much.
Mr. Burton. Thank you Mr. Cummings.
Mr. Shays, I think you're next.
Mr. Shays. Thank you.
Let's talk about that document No. 62 a little bit more.
Mr. Lindsay. Yes, sir.
Mr. Shays. This was a document provided by Northrop
Grumman. And I want to know if you were given this document.
It's prepared, I believe, by Bob Haas of Northrop Grumman.
Mr. Lindsay. It is before me now, sir.
Mr. Shays. Pardon me?
Mr. Lindsay. It is before me right now.
Mr. Shays. Had you ever seen the document before?
Mr. Lindsay. Before these proceedings, no, sir. Before I
testified on the 23rd, no, sir.
Mr. Shays. Do you know who this document was given to?
Mr. Lindsay. No, I do not, sir.
Mr. Shays. Did you know that that document existed?
Mr. Lindsay. Prior to my testifying before this group, no,
sir.
Mr. Shays. Kind of takes my breath away.
In this document, Northrop Grumman was your contractor.
Mr. Lindsay. Had a contract with the Office of
Administration to provide common computer support and therefore
provided support for our facilities contract.
Mr. Shays. What were you?
Mr. Lindsay. At that time, I was the general counsel. They
work for the Office of Administration.
Mr. Shays. So they prepared this document for you don't
know who.
Mr. Lindsay. No, I do not, sir.
Mr. Shays. But you were supposed to assess the problem.
Now this document was prepared on I believe it is June
18th. And this document which you have lists various names,
from Phillip Caplan to Bruce Lindsey to Betty Currie--these are
e-mails we didn't capture--Erskine Bowles, John Podesta--who
was then the deputy chief--Ira Magaziner--and Ira Magaziner was
almost 4,000--well, 3,600 more precisely. Charles Ruff even had
five in here.
But this is just a snapshot of 1 day. Now, admittedly, it's
a snapshot of 1 day. We don't know how far back it would
capture. It's 246,000 potential e-mails. And then it doesn't
capture all the e-mails that were lost from June until November
until the system was fixed.
So it kind of blows my mind that you who work in the office
have never seen this document before and these are the people
that work for you. So it was really kept under wraps by
somebody. And that's why I begin to suspect--I'm sorry.
Mr. Lindsay. I don't believe anything was kept under wraps.
There are many, many documents--I mean, right now, as assistant
for the President of Management and Administration there are
over 2,400 people who report to me in one way or the other. All
those people may have documents.
Mr. Shays. This is relevant information. You're supposed to
report the problem, and this is the problem, and you're not
able to report the problem. How convenient.
Mr. Lindsay. I can----
Mr. Shays. Mr. Ruff can say he never saw it. Mr. Ruff, did
you ever see this document?
Mr. Ruff. No, I did not.
Mr. Shays. OK. I'm assuming, Ms. Mills, you never saw it
either.
Ms. Mills. No, I do not.
Mr. Lindsay. I cannot speak, sir, as to why they did not
present that document to them.
Mr. Shays. These are reasons why we need to find out.
Because you're willing to make an assumption that there was no
cover-up, and I'm willing to make an assumption there was. And
so we both are making assumptions. And then we're going to try
to find the truth. But my assumption is no different than your
assumption. The problem is, this is relevant information that
you didn't get, you should have gotten, and you, Mr. Ruff,
should have known it because it says there are 246,000.
Mr. Lindsay. It's not an assumption on my part, sir, that
there's no cover-up. I know that I didn't cover anything up.
I'm testifying about what I know.
Mr. Shays. That's an assumption that you didn't. But you
said more than that, you said nobody tried to cover-up.
Mr. Lindsay. I don't believe anyone did.
Mr. Shays. That's your belief. You don't know it. The only
thing you can speak on is about what you say.
Mr. Lindsay. That's correct.
Mr. Shays. You can tell me you think, and I can be critical
of your thinking that way, just as you can be critical of mine
being suspicious of the fact that we didn't learn about this
problem until the press told us, just like we didn't know about
the videotapes until the press told us. Then you gave us the
videotapes, and now we have this document.
So, Ms. Mills, I'm sorry we're having this hearing, but
we're learning things that are important. Somehow there was the
big disconnect, and this big disconnect meant that relevant
information may not have been presented to the proper
authorities.
And I voted against impeachment, as I told you earlier.
Wouldn't it be interesting to know if there was things in here
that would have affected my vote differently. But we didn't
have the information. Because I still buy your argument
impeachable offenses weren't proven and the proven offenses
weren't impeachable, but they may not have been proven because
information was withheld.
I want to be clear now, given that you didn't have relevant
information, what you were really able to tell Mr. Ruff. This
is relevant information that you didn't tell him because you
didn't know about it. So you didn't try to cover up. But what
did you tell him then without this relevant information?
Mr. Lindsay. As I testified earlier and as I testified on
March 23rd, the information that I provided Mr. Ruff is roughly
the information that was provided in the June 18th memorandum
from Ms. Apuzzo. That is the sum and substance of what I
understand we conveyed.
Mr. Shays. Who do you think can help us find out who had
this in the White House?
Mr. Lindsay. I don't know, sir.
Mr. Shays. Well, try to stretch your mind a bit. Who would
most likely have it? Wouldn't it have been most likely that you
should have it or who most likely should have had it?
Mr. Lindsay. I don't know if I should have had it at all,
sir. My understanding to this day right now is that that
document is misleading in that it gives one the impression that
it describes the entire population of e-mails that were or were
not captured.
Mr. Shays. No. No, you're wrong about that. See, it is the
total amount potentially minus the e-mails found in individual
PCs, minus the e-mails found attached to sent e-mails with
history, minus the e-mails found in printed filings, minus the
e-mails retrieved from back-up tapes. Then that leaves a
certain number that we haven't found. We don't know what that
number is. And then of that number there may be some not
relevant. But, in there, there may be subpoenaed information
not produced. And you and I have this one big challenge. I
don't fault you or anyone else that the breakdown happened. I
fault you for not telling the relevant information.
Which gets me to you, Mr. Ruff. If you take responsibility
what does that mean, you take responsibility?
Mr. Ruff. It means that, ultimately, it was my judgment or
misjudgment and my misunderstanding of the circumstances that
led me to conclude--and for that I blame no one other than my
own failure of understanding, that led me to conclude that
indeed the problem did not have an adverse affect on our prior
productions. In that sense, I take responsibility for not
pursuing further the inquiry that I thought had been adequately
pursued by the search that had been conducted.
Mr. Shays. You were aware, though, that the problem wasn't
yet fixed either, correct?
Mr. Ruff. No. That's part of my understanding at the end of
the search that had been conducted, was that indeed whatever
glitch there was, whatever the technological problem was, did
not affect our prior production and collection of information.
And in that sense, candidly, I put it aside and went on to
other pressing matters.
Mr. Shays. And did you at any time learn that this
problem--and they referred to it--what did they refer to this
project as, Mail2 problem, Mr. Lindsay?
Mr. Lindsay. Who referred to what?
Mr. Shays. Didn't they call it project X?
Mr. Lindsay. I never called it project X.
Mr. Shays. Did you ever hear it referred to as project X?
Mr. Lindsay. I heard about it here when I heard the
testimony of some of the Northrop Grumman employees.
Mr. Shays. Right. OK. So your testimony before the
committee, Mr. Ruff, is that you take full responsibility and
based on what you knew you didn't think there was any reason to
tell the committee. What do you think now?
Mr. Ruff. Obviously, that if I had understood at the time
what the scope of the problem was, that indeed the test that
had been conducted did not give sufficient assurance that the
problem had not affected earlier searches, I would have done
something about it.
Mr. Shays. If you were on this committee and you had found
this information, wouldn't you be pretty unhappy and concerned
about what the White House had done?
Mr. Ruff. Well, I have no doubt about the capacity of the
committee to be concerned about what the White House has done,
Congressman. I don't mean to be flip, but I do think, as I said
to Congressman Hutchinson, that there are legitimate areas of
inquiry, and one of those legitimate areas is to determine
through appropriate means whether anything untoward occurred. I
may disagree with you and others about what the scope of that
inquiry ought to be and how it ought to be conducted, but I
don't question the core issue of whether it ought to be of
concern to you.
Mr. Shays. But, see, what I want to know is, who had this
document and why wasn't Mr. Lindsay and others told? And why
weren't you told?
Mr. Ruff. On that score I can't help you, Congressman.
Mr. Shays. So it just makes me suspicious.
I yield back.
Mr. Barr [presiding]. Does the gentleman yield back?
OK. Who seeks recognition? Mr. Waxman.
Mr. Waxman. For a 10-minute round.
Mr. Barr. Mr. Waxman is recognized for 10 minutes.
Mr. Waxman. As we near the end of our 4th day of hearings,
I want to summarize some of the most important facts that we've
learned.
We have learned that no one in the White House had any role
in developing the message retrieval system; that no one in the
White House asked that any e-mail messages be excluded from the
system; and that before June 1998, no senior officials in the
White House even knew that some e-mail messages were being
excluded from the retrieval system.
We have learned that the Northrop Grumman employees
involved in this issue have conflicting recollections of
whether any threats were made to them. One employee, Robert
Hass, believed they had been threatened with jail by Laura
Callahan, a White House employee. Mr. Haas told us that in a
meeting with Mrs. Callahan and his four coworkers, he
flippantly asked what would happen if he discussed the computer
glitch with others, particularly his wife. He remembers Mrs.
Callahan warning him that, ``there would be a jail cell with
his name on it.''
Sandra Golas initially testified that, while she remembered
the word ``jail'' being used in the meeting, she couldn't
remember who said it. But she later said she did feel
threatened and thought jail was a real possibility.
Yiman Salim and John Spriggs, both of whom were in that
meeting and both of whom seemed credible, have no memory of
jail ever being discussed. Miss Salim testified that she never
felt threatened, and both said they believed Mrs. Callahan
acted reasonably given the circumstances.
Betty Lambuth did agree with Mr. Haas' recollection and
added that at a second meeting she had with Mr. Lindsay and
Paulette Cichon another threat by Mr. Lindsay was made.
But we know now that Ms. Cichon had signed a statement
saying that the threat never happened. In fact, Ms. Cichon's
statement says, ``at no time during this meeting did I perceive
Mark threatening Betty or myself. At no time was a threat of
jail mentioned or any other threat. If any threat were made, I
would certainly have remembered it and would have taken the
appropriate action in response.''
I want to point out that Miss Cichon was a political
appointee and has spent almost all of her career in the private
sector and no longer works at the White House.
We also learned that none of the Northrop Grumman employees
and no one in the White House had any knowledge of the content
of the missing e-mails. They all testified that they didn't
have any knowledge of it.
One witness said she thought she knew what was in it
because she heard from Mr. Hass, but Mr. Haas said he didn't
inform her what was in it because he didn't know what was in
it. So the evidence is that none of them really knew what was
in these e-mails.
Yesterday, we learned from Mr. Heissner and Mr. Lyle that
they knew of no efforts to conceal this information from
Congress or the independent counsel; and we learned that,
despite yesterday's press reports, there was no inappropriate
action regarding Sidney Blumenthal's e-mail account.
Now let's put it all in context.
At this point, we've heard from Mr. Heissner, who is a
career civil servant and has served in the administrations of
Presidents Ford, Carter, Reagan, Bush and Clinton--by the way,
Mr. Ruff, have you ever met Mr. Heissner?
Mr. Ruff. Not to my knowledge, Congressman.
Mr. Waxman. Mr. Lyle, the director of the Office of
Administration, became involved in this issue in April 1999,
almost 10 months after the White House counsel's office focused
on the issue.
Betty Callahan and--excuse me, I have been calling her
Betty Callahan, but I understand it's Laura Callahan. It's a
mistake. It's not a criminal action. It's a mistake. Laura
Callahan, who was accused of making the initial threat, is a
registered Republican and a career civil servant. So she's the
one that supposedly made the threat.
Paulette Cichon, as I noted before, also was not a
political appointee and has spent most of her working life in
the private sector.
And today we have Mr. Lindsay, Mr. Ruff and Ms. Mills, all
of whom have impressive backgrounds in records of public
service.
So if there is a scandal and a deliberate attempt to
conceal information, obstruct justice and thwart
investigations, these are all the people that would be
involved. They would be the participants in this cover-up. Not
only have they all credibly denied being involved in any
wrongdoing, none of them have any knowledge of others making an
attempt to conceal the e-mails.
Now, Mr. Ruff and Ms. Mills, when this problem arose did
you have any knowledge of the content of the incoming missing
e-mails?
Ms. Mills. I did not.
Mr. Ruff. No, Mr. Congressman.
Mr. Waxman. So if the theory of wrongdoing is correct, you
would have had to participate in a cover-up without even
knowing what you were trying to cover up. And Mr. Ruff and Ms.
Mills would have had to be doing this with the help of Mr.
Heissner and others, who at least Mr. Ruff said he's never met.
Ms. Mills, have you ever met Mr. Heissner?
Ms. Mills. I have met Mr. Heissner.
Mr. Waxman. You have met Mr. Heissner. OK. So I can't say
this cover-up involved a man you never met. Mr. Ruff never met
him. You met him. Did you participate in a cover-up with him?
Ms. Mills. No.
Mr. Waxman. And now to cover up the cover-up, all the
witnesses who have testified in the 4 days of hearings would
have been lying to us and all of them would have been lying to
us under oath, if you want to believe all the suspicions that
some of my colleagues say they have.
I think a more plausible explanation is that Mr. Ruff and
others in the White House counsel's office simply did a bad job
in responding to the system defect that resulted in missing e-
mails. It's embarrassing to have to face that fact. But
mistakes do happen.
The one area that I agree with Mr. Barr is that responding
to subpoenas is a serious obligation. Every effort should be
made to produce documents. In this case, for whatever the
reason, I don't think enough attention was given to
understanding the problem and making sure subpoenas were fully
complied with.
I understand that the people in the counsel's office
thought you had complied with the subpoenas. You acted in good
faith, believing that the missing e-mails were in fact turned
over; and it may still turn out to be true that that's the
case. But because of that belief, I don't think that enough was
done to quite find out whether everything was being fully
complied with. I regret it. I'm sure that Mr. Ruff, Ms. Mills
and others who worked in the counsel's office regret that as
well. But if that is the explanation, and I think it's a
logical explanation, this is an unfortunate mistake. It is not
criminal conduct, and it doesn't amount to a scandal.
And I must say, when we get all these e-mails, I will be
astonished if we're going to learn something we didn't know
about Monica Lewinsky. I would just be astonished that maybe
any of us who voted against the impeachment would think that we
should have voted for impeachment because of something on a
missing e-mail, especially when you realize that the e-mails
that are missing are missing because they were sent from the
outside into the Office of the President and all the expanded
offices that are involved in the office of the executive
branch.
I would hope that and expect that we're going to see what
is in there. But like so many other examples we have in this
committee, before we get documents, all these suggestions are
made, allegations are asserted, accusations are laid on the
table that there's a scandal. And then when we get the
documents it turns out that the documents and information never
substantiated the allegations, then we quickly go onto another
allegation.
Mr. Kanjorski, I understand you wanted me to yield to you.
I do have less than a minute, but I will yield to you.
Mr. Kanjorski. I just want to point out that it's
unfortunate, highlights the culture of the committee and the
circumstances of the last 7 years.
I heard my colleague from Connecticut examining the three
witnesses, and he readily recognized he makes an assumption
that there's a cover-up. The problem is, that's a shift of the
burden of proof. It means if there is no cover-up you have to
prove a negative. That's extremely difficult, if not
impossible, as we know, in the law. But that's the new burden
that this committee would place on the executive branch of
government.
I think I would like to associate myself in entirety with
Mr. Waxman's summarization. I think it's very clear. There was
a mistake made. It is as much technical as perhaps failure to
follow through appropriately. But perhaps that's because the
people that should have followed through appropriately didn't
understand the technical complications involved. Clearly, this
is not a scandal. This is a mistake. It's not criminality. It's
an overburdened White House with investigations that have gone
on and on and on and continue to go on.
Mr. Barr. The gentleman's time has expired.
Mr. Waxman. This is the 4th day of the hearing and who
knows how many more we'll have. I yield back the balance of my
time.
Mr. Barr. The gentlelady is recognized for 5 minutes.
Mrs. Chenoweth-Hage. Thank you, Mr. Chairman.
Mr. Ruff, I would like to discuss some of the assurances
that you and your successors have given to this committee about
the completeness of document production. It's a serious matter.
And we have heard it in opening statements by one of the
witnesses how really trivial are the matters that this
committee engage in. And I would think any officer of the
court, any lawyer who found that vast numbers of items that
were sought after under subpoena had been either mistakenly or
purposefully withheld, most attorneys would be pretty upset.
So, Mr. Ruff, would you please turn to exhibit No. 140.
This is a letter--this is your letter to this committee on
campaign fundraising.
[Exhibit 140 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.623
[GRAPHIC] [TIFF OMITTED] T9621.624
[GRAPHIC] [TIFF OMITTED] T9621.625
[GRAPHIC] [TIFF OMITTED] T9621.626
[GRAPHIC] [TIFF OMITTED] T9621.627
[GRAPHIC] [TIFF OMITTED] T9621.628
Mr. Ruff. Forgive me. It's taking me a few minutes to get
there.
Mrs. Chenoweth-Hage. Oh, yes.
Mr. Ruff. I have it.
Mrs. Chenoweth-Hage. This is a letter to the committee
where you stated, this letter serves to certify that to the
best of my knowledge the White House has produced all documents
responsive to the committee's subpoenas.
And then, on the dog track matter, exhibit No. 141, which
is four pages beyond the document just referred to, in your
January 6, 1998, letter you wrote, to the best of our knowledge
we have provided the committee with all responsive materials
that we have located as a matter of our EOP-wide search for
documents relating to the St. Croix Meadows Greyhound Racing
Park.
[Exhibit 141 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.629
Mrs. Chenoweth-Hage. Then in exhibit No. 142 on the Charlie
Trie matter, in a February 20, 1998 letter Lanny Breuer wrote,
I understand that all e-mails currently searchable regarding
Mr. Trie have been provided to the committee.
[Exhibit 142 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.630
Mrs. Chenoweth-Hage. Then in exhibit No. 143 involving
clemency for the Puerto Rican terrorists, in a December 3,
1999, letter, Dimitri Nionakis wrote, in addition, due to the
number of requests for information from investigative bodies,
the search of archived e-mail messages has taken longer than
expected. I anticipate that we should complete that search by
the end of next week.
[Exhibit 143 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.631
[GRAPHIC] [TIFF OMITTED] T9621.632
Mrs. Chenoweth-Hage. Then on the Waco tragedy, in a January
28, 2000, letter, Dimitri Nionakis wrote, and I quote from
exhibit No. 60, the scope of our recent search for Waco-related
materials encompassed all items or documents in any way
relevant to the events occurring at the Branch Davidian
compound in Mt. Carmel outside of Waco, Texas, in February
through April 1993.
Mrs. Chenoweth-Hage. Now, these are not trivial matters. I
think anyone would agree with that.
Mr. Ruff, given what we know, though, about the e-mail
problems, these assurances are no longer reliable that I just
read to you, not a single one of them. Granted some of the
assurances were given before your office's knowledge of the e-
mail problem, but let's begin by focusing on those examples of
assurances made before the summer of 1998. Do you believe that
the White House counsel's office has an obligation to inform
the committee if it learns information that renders a prior
certification invalid or inaccurate?
Mr. Ruff. I do, and it has.
Mrs. Chenoweth-Hage. Mr. Ruff, do you believe that the
White House counsel's office should wait for pressure from the
press and or public hearings to correct inaccurate information
provided by the committee----
Mr. Ruff. The White House's----
Mrs. Chenoweth-Hage [continuing]. Provided to the
committee.
Mr. Ruff. The White House counsel's has, to my knowledge
and my experience, been forthcoming with the committee, whether
the words be a happy one or unhappy one, about its compliance
with committee requests.
Mrs. Chenoweth-Hage. I find that difficult--I find it
difficult to understand that, in this Nation, the most highly
technical information retrieval systems that exists in the
White House, that we can't get information before Thanksgiving
of this year.
Mr. Ruff. Congresswoman, to that issue, I am really not
able to speak; and I'll leave it in Mr. Lindsay's hands. But,
as I explained earlier, I think he said that there will be a
rolling production made and before Thanksgiving.
Mrs. Chenoweth-Hage. And it is now May. I don't think your
assurances make us feel very sanguine about this issue, nor the
American people.
But let's turn to those assurances given----
Mr. Barr. The gentlelady's time has expired.
Mrs. Chenoweth-Hage. Thank you, Mr. Chairman.
Mr. Barr. Who seeks recognition?
The gentleman from Tennessee is recognized for 5 minutes.
Mr. Ford. Let me walk back through really quickly just for
the record.
My colleague, Mr. Barr, has made, panelists, some very
strong allegations that seem to be completely unfounded. In
fact, he held up a folder of e-mails regarding Monica Lewinsky
and said they had not been produced to the Office of
Independent Counsel. He was referring to the results conducted
by Mr. Haas, I believe, in mid-1998. Was that accusation
accurate?
I ask any of the panelists who might be able to respond. I
think Mr. Lindsay might.
Mr. Lindsay. It's not my understanding. If I understand the
testimony here today, that that was not correct.
Mr. Ford. In fact, we've actually heard from numerous
people testifying that Miss Shelly Peterson in the White House
counsel's office searched those e-mails and determined that
every single responsive e-mail had already been produced for
the independent counsel or to the independent counsel. Is that
your understanding as well?
Mr. Lindsay. I refer that to counsel.
Ms. Mills. That is my understanding.
Mr. Ford. Now Mr. Barr states it was puzzling that the
White House counsel's office did not produce the documents to
the independent counsel a second time, even though they had
already produced or been turned over. Do any of you know--and
I'm a lawyer, graduated from a rural school, Mr. Barr, up in
Michigan called the University of Michigan, I'm not as bright
as you, but I don't know any legal theory or set of legal
ethics that suggests that it's necessary to turn over documents
when you have already produced those exact same documents. Mr.
Ruff, do you know of any legal theory or legal ethics that
requires that?
Mr. Ruff. I do not, Congressman. I think we made the
judgment that because indeed these documents were duplicative
of those which had already been turned over that we met our
obligation under the subpoena.
Mr. Ford. Miss Mills, I know you're a Stanford lawyer. Do
you know of any legal theory or set of legal ethics that would
require you to turn over two times documents?
Ms. Mills. I am not aware of any.
Mr. Ford. Mr. Lindsay.
Mr. Lindsay. No, sir.
Mr. Ford. My good friend from Connecticut, who I am sorry
left--I understand left, made some comments about Ms. Mills'
brilliant opening statement. And I can imagine if you were one
of those that had worked tirelessly, even if it was not the
intention to bring truth to some of the horrible things that
we've done on this committee, that perhaps you would disagree
or find disagreeable some of the things that she said.
But I do take somewhat of an issue with those who may
suggest that there have been those in the White House, Miss
Mills included, who have not been as forthright and forthcoming
as she should have been. Perhaps the better way of saying it,
she's not--they're not saying the things you would like for
them to say. The badgering of Mr. Lindsay by my colleague, Mr.
Shays, was embarrassing. I can understand if we disagree with
what he's saying, but you can't disagree because he's not
saying what it is you want him to say.
Also, Chairman Barr, it's come to my attention that one
of--that someone on your side encouraged other Members on your
side who might be friendly or might, I should say, be willing
to accept what the White House officials are saying were
encouraged not to come, not to attend this morning's hearings
because it might give off the wrong impression. If someone on
the other side can dispute that I, unlike you, will believe
you, unlike we're giving these witnesses the credit this
morning.
I would close by saying my good friend, Mr. Barr--and he is
a friend. We were at the Super Bowl together in Atlanta, and I
had a chance to see his wife. He was rooting for the wrong
team, the St. Louis Rams if I remember, but he's still a friend
nonetheless.
You know, there are those on your side of the aisle who
have been accused of doing things that we have learned were not
true. At one point when you were U.S. attorney in Georgia you
were accused of going after--unfairly going after African
American elected officeholders. You said indeed that was not
the case at your office. There was no racism, no bigotry
involved. And many accepted that. I've accepted that. And
others, even politicians in Atlanta that I know and are close
with, have accepted that.
Mr. Burton has his own share of allegations levelled at
him; and there are those that suggest that he's done nothing
wrong, as he has. And I accept and respect that. I would only
hope that at some point we can learn to accept and respect what
the White House is saying.
Again, we can disagree over policies and perspectives and
issues and vision, but when do we stop? I mean, we went through
an impeachment hearing where you lost a would-be Speaker, Mr.
Livingston. And no disrespect to Mr. Hastert but Congressman
Livingston--Chairman Livingston would probably have made a
great Speaker. He respects this process.
And, again, I would love to see Mr. Gephardt be Speaker,
but we have to have a non-Democrat. Mr. Livingston would have
made a great Speaker. We lost him. You lost your other Speaker,
Speaker Gingrich, because he didn't aggressively go after the
President. When do we stop?
I mean, when is that in--we take a look--and I would love--
Mr. Shays was asking Mr. Ruff--Mr. Ruff, if you were a member
of this committee, do you think it would be appropriate to take
some of the recommendations offered by Ms. Mills to investigate
why black men in New York are afraid to take their wallets out
of their back pockets?
Mr. Barr. The gentleman's time has expired.
Mr. Ford. No, no. Would you urge us, Mr. Shays----
Mr. Barr. The gentleman's time has expired. Would he like
an additional minute by----
Mr. Ford. Mr. Ruff, if you were a member of this committee,
would you investigate that?
Mr. Ruff. That I think is the people's business,
Congressman.
Mr. Ford. If you were a member of this committee, would you
look into the LAPD and some--I mean, if we're going to----
Mr. Barr. The gentleman's time has expired. The gentleman's
time has expired.
Mr. Ford. If you're going to ask, Mr. Barr, these----
Mr. Barr. The gentleman's time has expired.
Mr. Ford [continuing]. Would you be investigating the White
House, Mr. Ruff, with the aggression of those of us on this
committee?
Mr. Ruff. I have a modestly biased view of that,
Congressman, you'll understand.
Mr. Ford. You can answer yes or no. I'll accept it.
Mr. Ruff. The answer is I think that----
Mr. Barr. The gentleman's time has expired. The gentleman
knows the rules of decorum. He's choosing deliberately to
ignore them. Would the gentleman like additional time by
unanimous consent? Would you stop just long enough to allow me
to ask you that question?
Mr. Ford. I would.
Mr. Barr. OK. Without objection, the gentleman is
recognized for 1 more minute.
Mr. Ford. If you were a member of this committee, Ms.
Mills, would you commence an investigation into why African
American men are afraid to take their wallets out in New York?
Ms. Mills. I would.
Mr. Ford. Mr. Lindsay, if you were a member of this
committee, would you commence an investigation as to why young
African American men are afraid to take their wallets out in
New York?
Mr. Lindsay. Absolutely, sir.
Mr. Ford. If you were a member of this committee, would you
want other Members of this body to investigate why we have not
passed a prescription drug benefit for seniors at a time when
the economy is performing like it is and prescription drug
prices are spiraling out of control like they are? If you were
a Member of this Congress, would you not be interested in those
issues, Mr. Lindsay?
Mr. Lindsay. Yes, sir.
Mr. Ford. Ms. Mills.
Ms. Mills. Yes.
Mr. Ford. Mr. Ruff.
Mr. Ruff. Yes, sir.
Mr. Ford. I would imagine they're not alone, Mr. Barr, Mr.
Chairman. At some point, it has to come to an end.
It's unfortunate that it had to be framed in a joke the
other night by the President at dinner with members of the
press, but he said we only have 7 more months to investigate
him. I would hope that we would not take him up on his word.
You all have been great in not taking him up on his word. I
would hope that this one time that you would remain consistent
on that front and let us get back to the business of the
people. Listen to what we're debating. We're debating e-mails.
Mr. Barr. The gentleman's time has expired. I recognize
myself for 5 minutes.
Mr. Ruff, in December 1998, as a matter of fact by letter
dated December 8, 1998, Judicial Watch which, as you know, is
representing parties in the Alexander versus the FBI case
before Judge Lamberth, they sent a letter to Mr. James Gilligan
of the U.S. Department of Justice Civil Division Federal
Programs Branch in which they raise the issue in December 1998
of the missing e-mails. And this was in the context of the
Alexander case that they ask the Department of Justice and they
included the December 28th issue of Insight magazine article on
this that I know you're familiar with. Have you ever seen that
letter? Did that letter come up in any of your conversations or
the interface that you conducted on these matters with the
Department?
Mr. Ruff. Perhaps I could see a copy of it now, and I would
be happy to tell you.
Mr. Barr. You have no independent recollection.
Mr. Ruff. I do not, no.
I have no recollection of ever having seen this letter or
of the attachments that purport to have been with it.
Mr. Barr. Did you have any discussions either at that time
or contemporaneously in that time period with anybody at the
Department of Justice about the request from judicial watch?
Mr. Ruff. There were--I couldn't tell you whether they were
contemporaneous or not. I would, on occasion, over the course
of my tenure in the White House, meet with one or more of my
staff and one or more of the Justice Department lawyers who
were helping us respond to various matters in connection with
this litigation. I have no recollection of any discussion that
would be contemporaneous or related to this letter.
Mr. Barr. Mr. Lindsay, last month you testified, and I
don't remember your exact words, and knowing how very
particular you are, appropriately so, I'm not going to put any
words in your mouth, but the testimony last month, or in March
when you testified here, you, I believe, testified that the
issue of getting this whole matter of the missing e-mails
resolved as being very important; is that accurate?
Mr. Lindsay. I believe at that point I was referring to
the--resolving the technical problem because that's all I
really knew about at that time.
Mr. Barr. But you knew there was a serious problem, or are
you now maintaining that----
Mr. Lindsay. No, I am saying there was a problem and----
Mr. Barr. OK. I'm not interested in--not trying to put
words in your mouth. If you would please, in that context then,
refer to exhibit 94. This is an e-mail of February 24, 1999.
Mr. Heissner, Karl Heissner writes that on the current status
of the Mail2 reconstruction, which is the serious problem that
we're talking about here, is that he is, quote, awaiting
funding and management decision to proceed.
Mr. Heissner testified, as I know you're probably aware,
yesterday to this committee that no one in the Office of
Administration management, including yourself, ever gave him
any funding or direction to proceed with the reconstruction of
the unreported e-mails until early this year, the year 2000,
long after the problem had already been reported, was well-
known and actually had been reported even in the media.
Why was Mr. Heissner prevented from moving forward and
never given the authorization to move forward with the
reconstruction, in other words, to resolve this problem?
Mr. Lindsay. Sir, the--as I stated in my testimony on March
23rd, November, when we discovered, when we were able to
resolve the Mail2 problem in terms of solving the glitch, the
first priority that I had was addressing the Y2K problem. This
is the time period where we received the money that we needed
to address the Y2K problem after a long period where we hadn't
received enough resources to address the technical concerns of
the Executive Office of the President and the Presidency of the
United States.
Mr. Barr. Were you not aware of any subpoenas, lawful
subpoenas, failure to comply with which could subject
individuals to contempt of court, if not obstruction of justice
charges that were outstanding?
Mr. Lindsay. As we discussed before, sir, there are two
different issues. The issue of compliance with the subpoenas
and whether or not the information that was provided was
complying with those subpoenas was a determination that was
made by the counsel's office. The other problem----
Mr. Barr. They've never made that determination. The only
determination that we have is Ms. Mills' testimony today that
somebody else not before this committee with regard to just
that one stack of e-mails had made a determination, not
reviewed apparently by anybody, prior to the decision being
made and finalized, that these materials would not be sent over
to whoever had requested them by subpoena. But there's never
been any determination made because the reconstruction has
never been made with regard to anything other than just that
one stack of e-mails.
Mr. Lindsay. As it was already testified earlier today,
sir, the information as to the impact of this particular glitch
on searches it was believed, believed by me and believed by
people in the counsel's office, that it did not have an impact
on those searches. Therefore, I was left with problem No. 2.
Mr. Barr. How can you, with a straight face, say that?
We're talking about hundreds of thousands of e-mails that have
not been reviewed.
Mr. Lindsay. Yes, sir.
Mr. Barr. You're making a statement that you feel
comfortable that there's nothing in there that's subject to any
subpoenas, because if you can't make that statement, you can't
state that all of the subpoenas have been complied with.
Mr. Lindsay. No. 1, sir, I did not know how many e-mails
there were at that time. I'm testifying about the state of my
mind at that particular time. All I knew about what was the
fact----
Mr. Barr. Of course, you are. You wouldn't have any way of
knowing.
Mr. Lindsay [continuing]. That would seem to show that
there was no problem with the production of any kind of
subpoenas. Therefore, sir, I was left with one very important
other issue, and that was the technical issue of how to resolve
it. Resolving that technical issue, we needed not only money
but also----
Mr. Barr. So when you're talking about resolving it, you're
not talking about resolving it, you're just talking about
solving the technical problem from that point forward?
Mr. Lindsay. No.
Mr. Barr. That in your mind, your state of mind, as you
call it, is resolving the issue, is that what you're talking
about?
Mr. Lindsay. That's not an accurate characterization of my
testimony. What I said is when I first came into contact with
the issue, I was interested in resolving the issue. That meant
resolving the issue if you, the counsel's office, came back to
me and said that there was a problem with the e-mails, then I
would go back and then take whatever----
Mr. Barr. Who assured you that there was no problem?
Mr. Lindsay. It's not that I was assured that there was no
problem. The information that came to me was that the
information that I provided after the task was duplicative
information. Therefore, the information----
Mr. Barr. Information duplicative of what?
Mr. Lindsay [continuing]. Searches.
Mr. Barr. Information duplicative of what?
Mr. Lindsay. That the information had already been provided
in other information.
Mr. Barr. How would anybody know that, Mr. Lindsay?
Mr. Lindsay. I did not--I don't know how they did it. I
don't know the process in terms of what was going on.
Mr. Barr. You're obviously a very bright man.
Mr. Lindsay. Thank you, sir.
Mr. Barr. And you made sure we understood that last time.
You told us your degrees and so forth, and I agree with that.
How can you make the statement that hundreds of thousands--
let's not even use the word hundreds of thousand--a large
number of e-mails, that nobody has seen----
Mr. Lindsay. Sir, I worked in an environment where a lot of
people who----
Mr. Barr [continuing]. That would be subject to being
provided pursuant to a subpoena when nobody's looked at them?
Mr. Lindsay. The determination as to whether or not that
information met or was required by subpoena or was responsive
or not was a determination made by the counsel's office.
Mr. Barr. Who? Who?
Mr. Lindsay. I don't know who in the counsel's office. I
was sitting here learning about some of those components.
Mr. Barr. Who told you that there was nothing in those
missing e-mails subject to any subpoenas?
Mr. Lindsay. I don't recall.
Mr. Barr. Oh, come on. You're stating under oath that
somebody made that statement to you and you cannot recall, as
you sit here today, who in the White House counsel's office
told that to you?
Mr. Lindsay. I'm not stating under oath that someone said
that to me. What I'm stating is that the information that I
provided----
Mr. Barr. Did they take any notes to that effect?
Mr. Lindsay [continuing]. Was a duplicate of information
that was provided, and therefore it did not present an issue--
--
Mr. Cummings. Mr. Chairman, is there a time limitation?
Mr. Ford. Can I ask a unanimous consent request that we
extend the chairman's----
Mr. Barr. That's OK. We'll come back. Who seeks
recognition?
Mr. Cummings. Ms. Norton.
Mr. Barr. Gentlelady from the District of Columbia is
recognized for 5 minutes.
Ms. Norton. I thank the chairman and I thank the gentleman
from Maryland.
Mr. Chairman, I regret the troubling presumption of
wrongdoing that surrounds these hearings. Anyone who has been
at the bar knows that in a criminal or civil trial, a person's
reputation for integrity outweighs very heavily on the outcome.
Therefore, I'd like to say a few words about the integrity of
these witnesses.
The allegations and the evidence that has been adduced so
far fails altogether to override the reputations they have at
the bar and in the community. I see no evidence that they would
sacrifice reputations they have built over a period of years to
avoid their legal or ethical responsibility.
I know Charles Ruff personally, and I know him by
reputation at the bar and in the city where he has lived for
many years. Although one of the most successful lawyers in the
country at a time when, in the early nineties, when there was a
great deal of crime in the District, Charles Ruff offered his
services to the city, not as a lawyer, but to do whatever he
could for children. The officials of the District of Columbia
could only scratch their heads as to how they could use such a
distinguished lawyer for children. Whenever he speaks in this
city these days, he does not speak about the bar or about
lawyers, he speaks about children.
Finally, the city convinced him that he should become the
corporation counsel of this city where he led the city during a
particularly troubling period and distinguished himself and
made a world of difference for having left private practice to
do so. He was the president of the bar in this city. On any
list of the leading lawyers in the United States of America,
Charles Ruff would be near the top of that list.
Cheryl Mills is one of the bright lights of her generation.
I mean to see to it that her remarks at this hearing go into
the congressional record. She owes her meteoric rise not only
to her extraordinary proven ability, but to her wonderful
integrity, proved at so young an age that the President of the
United States was willing to put his entire, his entire fate in
her hands until she decided to do what few lawyers of any
generation would do and, that is, to decline to be the counsel,
the White House counsel to the President.
I do not know Mr. Mark Lindsay personally, but I do know
him by reputation because he served ably one of the pillars of
the House, Mr. Lewis Stokes, who would have had no one on his
staff except a person of the most stellar reputation.
It does seem to me that these witnesses are at least
entitled to have put in the record what others think of them,
and when I insist that what I think of them goes into the
record, I want it to be known that I am speaking for thousands
of others.
I thank you, Mr. Chairman, and I yield back the remainder
of my time.
Mr. Burton [presiding]. The gentlelady yields back the
balance of her time.
Mr. Cummings, did you have some comments you wanted to
make?
Mr. Cummings. I just want to echo my colleagues' kind words
again to our witnesses. You know, as I've sat here, Mr.
Chairman, hearing after hearing, I have been a witness to
people's characters being torn apart, and you know, when I
think about government service, our government employees are so
often, Mr. Chairman, underpaid. So many of them work very, very
long hours, and they give their blood, their sweat and their
tears, and they come into a room like this and are often raked
across the coals. And Ms. Mills is right, you know, the
question becomes who would go in government service, I mean,
when they see this.
And that's why I join in with Mr. Ford and Mr. Waxman, and
certainly my colleague, Ms. Norton, and take a moment to simply
say thank you. Thank you for all that you have given. Thank you
for not only touching us as adults, but someone once said our
children are the living messages we send to a future we will
never see, and Mr. Ruff, you will be interested to know, I was
walking down the hall just a few moments ago and a young man, I
think he's a lawyer, I overheard him say, you know, Mr. Ruff is
a guru of the Washington bar. I mean, that's a hell of a
statement, it really is. I mean this was unsolicited, he was
just talking to a friend and talking about how much he admired
you, and you know, I think sometimes we forget that we are all
human beings.
I think Ms. Mills said it best, said all of us make our
mistakes, we do some things good, we do some things not so
good, but we are all human beings, and in this life and in this
government life, and the kind of government that we deal with
today, I think we all face some very tremendous challenges, and
Mr. Waxman often says that a lot of times the allegations that
are made about people when they come before this committee,
they're put out there, they're put out there into the universe,
and you know, the sad part about it is all the people that hear
the allegations, they don't necessarily hear what we hear. They
don't necessarily hear a lot of the allegations literally torn
to shreds. And I have seen situations where allegations were
made, and by the time a hearing was over, it's hard to believe
the allegations were ever made because of the testimony that
has come forward.
And for those reasons, I take my moment to simply say thank
you. Thank you for all that you've done. Thank you for all that
you're doing, and thank you for standing up.
Ms. Norton was talking about integrity, and one person has
defined integrity as having three parts, Mr. Chairman. First of
all, it's standing up for what is right, discerning between
what is right and wrong. Second, it is acting on what is right,
even to your own peril. And third, it is telling others what
you did so that they can follow your example. And to our
witnesses today, I thank you for having integrity. No matter
what others may say, no matter what the referrals may be, thank
you for standing up for what you believe in, and thank you for
being examples to us and our children. Thank you.
Mr. Burton. The gentleman yields back the balance of his
time. We will now go to the counsel for his questioning in
accordance with the rule. I will just take about a minute here
at the beginning of his time to say that I understand the
accolades that have been given to the witnesses today, but the
fact remains, for over 2 years the White House has known about
these e-mails. The White House counsel's office has known about
these e-mails. They were under subpoena from a number of
sources to whom all of this information should have been given
in a timely fashion, or at least they should have been made
aware of the glitch that was taking place over there, but for 2
years, we've been held at arm's length and we haven't gotten
those documents. So all the accolades and all the nice things
that are being said about the people at the table doesn't
change the fact.
The fact is that duly subpoenaed documents were kept from
the Congress when the White House had knowledge about them for
over 2 years, and I use the missing tapes in the Nixon case
that were a part of the reason that he was removed from office,
and here we have hundreds of thousands of e-mails that may be
relevant to a whole series of investigations. We haven't
received them. We haven't even been notified about them, even
though the White House knew about them, the White House
counsel's office knew about them, and yet we continue to hear
these accolades, but these are the facts.
These are the things that need to be made clear to the
American people, that if there's an investigation going on by
an independent counsel by a committee of Congress and a duly
authorized subpoena has been sent, we are entitled to that
information, and if the White House knows about it and they
don't give it to us intentionally, or they keep the information
from us intentionally about a problem over there, then they're
obstructing our investigations and that's what this is all
about.
Mr. Wilson.
Mr. Wilson. Good afternoon. I'll be as brief as possible,
and hopefully we'll soon be out of here, with this panel,
anyways. I want to try and cover two areas, and I'll tell you
what they are in advance so that we can hopefully be as brief
as possible. The first relates to the search that was conducted
that resulted in the materials that were produced to us the day
before yesterday, and I'll tell you why I want to cover this
with a little more specificity.
Mr. Ruff came in for an interview. He's testifying today.
He's been very clear that he understood that there was a
potential problem that might relate to document production. He
told us in his interview to, and I'll quote, make sure, in
fact, this system which the problem had not--it is a little bit
of garbled syntax, but which was probably not tainted--the
ability to find materials that were responsive to the special
prosecutor's inquiry, and following from that, a search was
conducted, and Mr. Ruff said today, indeed, that was the
purpose of conducting the search.
So an awful lot was riding on this search. The search, in
many respects, determines whether somebody should or should not
have understood that there was a problem. So I want to ask a
few more questions about that.
The second thing I would like to cover is a second meeting
at the White House. When the Mail2 problem was discovered in
June 1998, Mr. Lindsay has taken pains to point out that he
testified last month that he did go and meet with Mr. Ruff.
This is something we do know, and we've discussed the memo that
was drafted that Mr. Ruff saw and that ultimately that was
directed to the deputy counsel for the President.
One thing we learned just in the last week, however, that
we did not know from your testimony previously and we learned
this from Mr. Lyle, Michael Lyle, the director of the Office of
Administration, was that in April 1999, another aspect of this
e-mail problem was discovered, and Mr. Lyle indicated to us
that Mr. Lindsay went back to the White House counsel's office
and told them a second time about an e-mail problem. And I'd
like to cover--we haven't discussed that at all today. I'd like
to cover that with you, Mr. Lindsay.
Let's go back to the search. The question's been asked,
what were the terms of the search, and just so that we can
start from a level playing field, I'll ask again, Mr. Ruff, do
you know what the terms of the search were?
Mr. Ruff. I do not, Mr. Wilson.
Mr. Wilson. Ms. Mills, do you know what the terms of the
search were?
Ms. Mills. I do not, and in your statement there was a memo
sent to the deputy counsel to the President, and I'm not aware
of that memo.
Mr. Wilson. If I did I misspoke. I meant to say the deputy
chief of staff at that time, Mr. Podesto. So I apologize. I
know it would not have been you.
Ms. Mills. Thank you.
Mr. Wilson. Fair enough. Now, Mr. Lindsay, I'll ask you the
same question--well, I will ask you the same question first. Do
you know what the terms of the search were?
Mr. Lindsay. You mean the names that were being searched?
Mr. Wilson. Well, we don't know at all what the terms of
the search were. So I'm asking you what the terms of the search
were.
Mr. Lindsay. I believe that they were the names of certain
individuals. I don't know anything about the terms.
Mr. Wilson. Now, where have you gained that belief from?
How do you know that?
Mr. Lindsay. The person who conveyed the request for the
search to me, then I conveyed that information to, I can't
remember, I think it was Laura Callahan, and then the search
was conducted.
Mr. Wilson. Was the search--was what was conducted to you
in writing?
Mr. Lindsay. No.
Mr. Wilson. So is it fair to say you had a verbal
instruction as to what you should look for in the e-mails that
you could search from the servers?
Mr. Lindsay. Yes.
Mr. Wilson. OK. Mr. Ruff, just turning to you, this search
was clearly quite important, because it now stands for the
proposition that there wasn't a problem, and I'm just--one of
the problems we're struggling with is why does nobody remember
what the search was supposed to be for, do you know?
Mr. Ruff. That's a question that I can't answer for you,
Mr. Wilson. I do not, as I have said, know who conveyed the
parameters of the search or any other instructions. There may
be such a person waiting to be identified, but I can't help you
in that regard.
Mr. Wilson. Now if I can, for a second, I'll turn to you,
Ms. Mills, because it's our understanding that Mr. Ruff did
rely on his staff, and I can understand him not knowing all of
the details of matters that he delegates to his staff, and this
is one reason we've asked you to come here today to try and
help us and explain to us what precisely you were looking for
to help you decide that there wasn't a problem. If you could,
please tell us.
Ms. Mills. Well, your characterization suggests that I was
looking for something, and I think my testimony has been, and I
hope has been clear with respect to the fact, it was my
understanding that OA was undertaking the search, that they
were going to provide the e-mails that were missing, that we
were going to review them to make a determination as to whether
or not they were duplicative or they were e-mails that had not
been captured and needed to be produced.
So what I was anticipating was that there would be
documents that would come, that there would be review conducted
of them and that review would tell us whether or not those
materials had or had not been provided to the appropriate
requesters.
Mr. Wilson. You're clear on that. The part I don't
understand, I think the committee has a problem with, is how
did the Office of Administration come to conduct a search?
We've been told by Office of Administration employees that they
never conducted searches of their own volition. They just
didn't go into people's computers and look for information. We
were told that they, in all other cases, received written
instructions and did searches accordingly. Everybody we have
talked to has told us that they did not originate a search
term.
So how did the Office of Administration come to be
conducting a search?
Ms. Mills. As I can only testify from my personal
knowledge, I don't know the answer to that question.
Mr. Wilson. Do you know who we might turn to to ask that
question of?
Ms. Mills. I do not.
Mr. Wilson. Do you know whether Ms. Peterson, at any point,
formulated a search term for the Office of Administration?
Ms. Mills. I do not know whether or not she did, though I
would be surprised, primarily because I provided the materials
that came over from the Office of Administration to her for her
to conduct her review, but I don't know the answer to that
question.
Mr. Wilson. The part that I'd like you to help us out with,
if you can, is that the search was very important, because it
ultimately was going to determine whether there was a larger
problem or not, and two of the principal lawyers in the Office
of White House Counsel, indeed counsel to the President, Mr.
Ruff and yourself, although you were only deputy counsel, are
telling us they did not formulate the search, and so one of
our--I think it is a legitimate point of concern--is to try and
determine who formulated the search to see whether there was a
problem or not, and there's not more I can do, I guess. No one
on this panel does know. But did you ever ask, Ms. Mills, what
precisely the search term was?
Ms. Mills. I did not.
Mr. Wilson. Why did you not ask?
Ms. Mills. I think there are certain assumptions that
you're making, and in my testimony I've been trying to be very
clear that it was my understanding that the search was being
conducted, that it was going to produce materials that needed
to be reviewed against prior production to make a determination
as to whether or not it had been captured before.
Mr. Wilson. I understand, but we're very circular here.
You're telling us that the search was going to be conducted.
Ms. Mills. It was my understanding that the search was
being conducted, that I was going to be provided with the
materials we then needed to make a determination with respect
to whether or not they were or were not produced previously.
Mr. Wilson. Did you ever express any concern as to what the
search would be for?
Ms. Mills. I didn't have the requisite knowledge to express
that type of concern, if I were to have that type of concern,
but I certainly believed that to the extent there was an issue
that it was going to be, the documents were going to be
searched for, and to the extent that they had not been
provided, that we were going to provide them.
Mr. Wilson. I think here is where we part ways a little
bit. I understand much of what you have said, but you've told
us you didn't have the requisite knowledge. What we do know is
that there were many document requests that had been made to
the White House on many different issues. You were, at the
time, focusing on an impeachment inquiry. That's something this
committee has had no interest in, no part of.
But we did have document requests that went to campaign
finance matters. There were many requests from other
independent counsels, the Justice Department had requests, and
what we know, and this is why I'm really legitimately trying to
work through this problem with you, what we know is that there
was a universe of documents that had never been looked at, and
this is the memo, and somewhat of the substance of Mr.
Lindsay's discussion with Mr. Ruff, communicated and Mr. Ruff
understood that, and he's told us he understood that. He
understood that there was a universe of documents that had not
been looked at and that that might have ramifications for
production of documents.
So there's a large universe of--well, there's a universe of
information, and there are many document requests out, and so
the problem we have is we have a folder of information that
goes to one matter, e-mails from Monica Lewinsky to someone
else, but there's nothing here that goes to campaign finance or
any of the other issues that were being searched. So we're
struggling with what does the search stand for. Can you tell us
what the search as conducted should prove to us?
Ms. Mills. I cannot. It was my understanding that the e-
mails were being collected and that they were the e-mails that
might have been missed, and that if we received those e-mails,
we should go through them to make a determination as to whether
or not they had been produced or not. That is what we did.
Mr. Wilson. OK. Now Mr. Ruff generously said that the buck
stopped with him, but he did inform us during our interview
with him that he delegated responsibility to look into this
problem to his subordinates, and he gave us a number of names
of people who might have been looking at the matter. Yours was
one of them. Who do we ask or who do we turn to to find out who
was really thinking about this problem? It really appears to us
that there's either extraordinary indifference to the problem
or nobody was really thinking about the problem. Nobody was
taking charge of trying to decide whether there was an issue
here.
Was anybody in charge of trying to decide whether there was
a problem?
Mr. Ruff.
Mr. Ruff. Obviously, I am hesitant for all the reasons that
have been both expressed and implicit in today's hearing to
offer any more individuals the opportunity to spend their day
in this chamber. All I can do, and truly is all I can do, Mr.
Wilson, is to tell you, as I told you previously, the names of
my staff members who regularly participated in the business of
document collection and response to subpoenas. Beyond that, if
I had any insight into who specifically spoke with OA or
otherwise framed the search, I would give that information to
you.
Let me say, although I understand your question, that this
does not, and did not then, and does not now, reflect, in any
sense, any absence of care about the problem. To the contrary,
I think the immediate reaction, particularly triggered by the
fact that there was this outstanding independent counsel
subpoena on the one issue that was of particular interest to us
at the moment, suggests the concern we did have and perhaps
also suggests the response we got, because it did relieve us of
that concern, led in turn to the conclusion, as I have already
acknowledged, not based on what we now know to be the facts,
but the problem really was not there.
Mr. Wilson. From our perspective though, it does appear
that there's some absence of care because even as we sit here
today, no one is able to really tell us anything specific about
what was done to determine there was an ongoing problem or not.
We know there was a search. We know some materials were
searched.
Mr. Ruff. That, I suggest, Mr. Wilson, is not an absence of
care; it is an absence of memory, but if I had the memory, I
would tell you what I knew beyond what I've testified.
Mr. Wilson. There are no notes that have been produced to
us. There's no memorandum. We know when the problem was
discovered, it was of such significance that Mr. Lindsay
participated in a process that resulted in a memorandum to the
deputy chief of staff to the President, and within days of the
discovery of the problem, you, the counsel of the President,
were briefed about a computer problem. This is something that
from our perspective, and obviously it is from our perspective,
but this is something that indicates that this is a problem
that is out of the ordinary, and you yourself indicated that
there might be ramifications for production of documents.
And one of the things that's been very clear to us, it's
been pointed out, that this was a time of great concern. The
impeachment process was--had begun. There was a great sense of
angst about that, but that heightens from a lawyer's
perspective, certainly from mine, if I knew at a time of great
difficulty, such as you were in at that point, that there was
an entire universe of information that had never been looked
at, that is something that would stand out in my mind. That's
something I'd want to know. I'd want to know the search terms,
how people went after identifying whether there was or was not
a problem. That's the type of thing I'd want to identify, and
we'll ask other people. But it just appears that nobody can
come up with any recollection as to what they sent the
subordinates out, your subordinates out, Ms. Mills, if she sent
any of her subordinates out, it doesn't appear that anybody can
say this is what we told a particular person to do, to find out
whether there was a problem, and that does indicate some lack
of care, and that's a charitable characterization.
Mr. Ruff. I disagree with your characterization, but I fear
there's not much more I can offer you.
Mr. Wilson. Fair enough. I understand that. Let me turn for
just a moment, Mr. Lindsay, to April 1999. It's our
understanding from talking to Mr. Lyle that in April 1999,
computer technicians identified the second glitch in the
computer system that indicated documents were not being
captured by the ARMS system, the user D problem. Were you told
in April 1999 about the user D problem?
Mr. Lindsay. Yes, I was.
Mr. Wilson. And if you could be brief, I'd appreciate that.
After you were told about the user D problem, what steps did
you take to bring that to the attention of any of your
superiors or anybody in the White House? A two-part question.
Mr. Lindsay. One thing, my role was different. I was no
longer the general counsel at that particular time.
Mr. Wilson. That's fine, but what steps did you take if
any?
Mr. Lindsay. The primary steps, the drill was essentially
the same in terms of what we did in terms of addressing any
kind of technical problem of this nature, the effort to make
repairs and correct the issue as quickly as possible, and I'm
happy to report that frankly we were able to complete the
repairs for that particular issue in a much shorter timeframe
than we were with the other one. I think that's because, with
my best recollection, that's because people had experience with
the other problem, they were able to address it and get it
resolved quicker. There's greater understanding of the nature
of those kinds of issues.
Mr. Wilson. Did you ever go to anybody in the White House
counsel's office and tell them about the user D problem?
Mr. Lindsay. Yes, I did.
Mr. Wilson. Now my recollection is that you did not bring
that up in your previous testimony; is that correct?
Mr. Lindsay. I believe I did.
Mr. Wilson. That you went to the White House in April or
thereafter of 1999 and briefed someone in the counsel's office?
Mr. Lindsay. I don't think I said that. I brought up the
letter D problem issue in my testimony.
Mr. Wilson. You certainly did, and there's no dispute on
that, but did you tell us before that you went to the counsel's
office and told them about the user D problem?
Mr. Lindsay. I don't remember being asked that specific
question.
Mr. Wilson. I don't think you were asked. That's one reason
we brought you back, and we only learned this recently but it's
not something you volunteered. Now you went back to the
counsel's office in April 1999, according to Mr. Lyle. First of
all, is that correct, was it April 1999?
Mr. Lindsay. Yes, sir.
Mr. Wilson. OK. Now that's not quite a year after the Mail2
problem was first discovered, but it's almost a year after. Who
did you speak to in the counsel's office?
Mr. Lindsay. I don't have a specific recollection of who I
talked to.
Mr. Wilson. Why did you go to the counsel's office.
Mr. Lindsay. Because there was the potential of having a
similar kind of situation with the other e-mail situation and
that would be my normal course of how I would handle it.
Mr. Wilson. Was it the potential or was it the same type of
situation as previously? I don't understand the use of the word
``potential.''
Mr. Lindsay. It was actually a different problem. It was
quite a different problem. It was caused by a different group
of people.
Mr. Barr. We understand how it was caused and all that, but
it had the same net result. It resulted in information not
being captured in the ARMS system; is that correct?
Mr. Lindsay. That was my understanding.
Mr. Barr. OK. So you went back to the White House counsel's
office to tell them something. Apart from--well, and you just
told us, so I can't ask too many times, but you don't recall
who you talked to. Was it just one person?
Mr. Lindsay. I don't recall, sir.
Mr. Barr. On this occasion did you draft another memorandum
as had been done in June 1998?
Mr. Lindsay. No. I requested a memorandum be prepared for
me describing what the problem was and for my folks to look at
it and to try and come up with some kind of resolution.
Mr. Burton [presiding]. Let me interrupt just a minute. I
want to make sure this point is very, very clear. You went to
the White House counsel's office when the first e-mail problem
arose, but you don't remember who was there other than Mr.
Ruff, and you don't remember who you talked to if there was
someone else there, and now you're telling us that there was a
second time that you went to the White House counsel's office
after having been aware of the first e-mail problem, now you
had a second e-mail problem. You must have known the gravity of
the situation, but the second time you went, you still don't
know who you talked to, you can't recall; is that correct?
Mr. Lindsay. That is correct, but it's very important to
understand that there were all--there were regular problems
with e-mail, not of the nature that I think would interest this
particular committee, but interest me and my staff from a
technical perspective of having people not being able to have
access to e-mails.
Mr. Burton. But the point is, by this time there must have
been awareness even in your office, that there were subpoenas
outstanding, there was an e-mail problem, you have gone back
with the second e-mail problem, you have talked to them and you
still don't remember who you talked to?
Mr. Lindsay. No, sir, I do not recall.
Mr. Wilson. Let's pick up the narrative if we can. You went
to the White House counsel's office, you talked to somebody,
you don't recall the name of the individual you talked to. What
was communicated to you, if anything?
Mr. Lindsay. I don't have any specific recollection of
anything being communicated back to me other than we were going
to continue to look into the issue and try to resolve it, which
is exactly what we did.
Mr. Wilson. ``We'' as you or ``we'' as the White House
counsel's office?
Mr. Lindsay. No, my staff.
Mr. Wilson. We just talked about the search that was
conducted. Monica Lewinsky e-mails were found, they were
compared, they were apparently duplicates. You've come back
with a second problem nearly a year later. Do the Monica
Lewinsky e-mails that were searched for the previous year stand
for any proposition that there was no problem that had to be
considered by White House counsel's office? Did you discuss
this search of Lewinsky e-mails from the previous year?
Mr. Lindsay. I don't have a specific recollection of doing
that, sir.
Mr. Wilson. Did you communicate at the time that there was
a problem that might relate to document production?
Mr. Lindsay. I may have. I don't have a recollection of
doing it. I think it was obvious because of the nature of the
issue that it might have an impact on that kind of an issue.
The issue still remained that the previous example of a
different kind of circumstance but still an e-mail issue, there
was duplicate information that was provided.
I also knew that there were lots of other means for that
information to be provided. So if it was an issue, that it very
well might have been, but only after we were able to do an
assessment of the scope and the breadth of the issue would we
be able to make any kind of an assessment.
Mr. Wilson. I think it's interesting for you to use the
word obvious in relation to document production issues. It's
obvious that it might have had some ramifications in document
production. It's interesting because it seemed like people in
the White House counsel's office didn't find anything obvious
in it at all. It sounds like, from everything we've seen, from
the documents we've reviewed, from the people we have talked
to, that people didn't understand something that is to us
relatively simple to understand.
Mr. Lindsay. That's not my understanding and recollection
of the testimony I have heard today.
Mr. Wilson. No. I said what is easy for us to understand,
and that's a statement I made, and that doesn't go to
testimony. I mean, the proposition is relatively simple. There
is a universe of documents that have never been looked at. To
this day, nobody knows what is in that universe of documents.
That's not a particularly difficult concept for anyone to
understand, and I think Mr. Ruff immediately saw that when he
gave the instructions he gave as soon as he was briefed.
It's just our problem is we're trying to find what was done
to really understand, to come to grips with whether there was a
problem. The computer technicians that we've talked to are all
very clear there was a problem. They knew it. They understood
it. You seem to have understood it. Mr. Ruff seemed to have
understood it. And somewhere there's a disconnect. That's why
we've asked you the questions, and I appreciate the fact you
can't remember who you talked to and you can't remember what
you discussed.
Let me just ask one other--turn to something else very
quickly. Mr. Lindsay--before I turn to that, I'll ask, courtesy
of my memory being improved here, Ms. Mills, did you ever learn
about the letter D problem?
Ms. Mills. No, I did not.
Mr. Wilson. Mr. Ruff, were you ever informed of the letter
D problem?
Mr. Ruff. I have no recollection of being informed of that,
Mr. Wilson.
Mr. Wilson. Mr. Lindsay, maybe you can help us. The first
time you went to talk about the Mail2 problem, you sought a
meeting with Mr. Ruff.
Mr. Lindsay. I was directed by the assistant to the
President for Management and Administration to talk to Mr.
Ruff.
Mr. Wilson. OK. Now, the second time you went back to talk
about this type of computer problem, were you directed by
anybody to go back to the White House counsel's office?
Mr. Lindsay. No, I was not.
Mr. Wilson. I mean, when you were first informed of the
user D problem, did you tell your superiors about this problem?
Mr. Lindsay. Yes, I did.
Mr. Wilson. And did you discuss whether you should go back
and inform White House counsel's office a second time?
Mr. Lindsay. I told them that I would.
Mr. Wilson. And what was their response?
Mr. Lindsay. That that was a good idea.
Mr. Wilson. But this time, and I understand Mr. Ruff said
he doesn't recall, maybe you did go to Mr. Ruff, but would
there be a reason go to anybody other than the counsel to
discuss this type of problem?
Mr. Lindsay. There were other people that may have been
involved and that I may have run into or dealt with on other
issues that I may have discussed the other issues with. So it's
possible there's another attorney in the counsel's office I may
have discussed it with. I just don't recall who it was.
Mr. Wilson. Now, one thing we've heard from people we've
talked to is that they--people who worked for the Office of
Administration had a clear understanding that if they didn't
have either the money or the personnel to ultimately--and I'll
be very simplistic here--but fix this problem, then the problem
wasn't going to get fixed. The question I ask of you is, first,
did you ever consider asking Congress for additional funds to
help fix this e-mail problem? I know it's been done in the year
2000, in March 2000 and starting, but before the year 2000 did
you ever consider asking Congress for funds to help fix the e-
mail problem?
Mr. Lindsay. I think that the answer to the question has to
be placed into context. In November 1998----
Mr. Wilson. Well, just asking if you ever considered going
to Congress and asking----
Mr. Lindsay. If I ever considered it, yes, I did consider
it.
Mr. Wilson. Did you ever ask Congress or instruct anybody
else to ask Congress for funds to fix this problem that we are
talking about today?
Mr. Lindsay. Yes, I did.
Mr. Wilson. You did? When was that?
Mr. Lindsay. March 2000.
Mr. Wilson. Well, I should have been a little more broad.
Away from the year 2000--and let me ask, in 1998, did you ever
ask Congress or instruct anybody to ask Congress for funds to
help fix this problem?
Mr. Lindsay. That's what I'd like to place into context.
Mr. Wilson. Well, did you or did you not?
Mr. Lindsay. I did not, and the reason why I did not is
because we were faced--at the time I was trying to get money to
address the Y2K problem. That was a recognized national crisis
issue, and we did----
Mr. Wilson. We gave you money on that.
Mr. Lindsay. I just want to place into context I needed
that money in September. I did not get it until November.
Though it was very necessary, I didn't get it. That was an
issue that would keep us--it would make the e-mail issue moot
because the e-mail system resides on systems that were not
going to work when the year turned over. So that issue had to
be resolved first. And at that point my staff came to me and
said you will not be able to make that timeframe because we do
not have the resources.
Mr. Wilson. You have pointed that out before, and we
appreciate it. Did you consider Congress had any role in the
prioritization of how funds would be allocated? It seems you
made a unilateral decision, but did Congress not have any role
to play in assessing how funds might be spent?
Mr. Lindsay. As a matter of fact, sir, at my appropriations
hearing we discussed the budget for the Executive Office of the
President. Ninety-eight percent of the questions that I
remember were about Y2K and the fight to get the resources to
address a problem that I believe that I had a mandate from
Congress to do everything that was necessary to make sure that
we met the requirements that we needed to. We were starting
late because of a lot of other circumstances, and so it was
very, very clear and obvious to me that Congress wanted us not
to fail to meet the Y2K deadlines. They wanted us to spend
those moneys responsibly, and that is what we endeavored to do.
Mr. Wilson. Fair enough. One last question. Mr. Ruff, did
you ever speak with Earl Silbert about any Northrop Grumman
matters at any time?
Mr. Ruff. Ever?
Mr. Wilson. Well, actually, yes, ever.
Mr. Ruff. Because I can't recall ever speaking to Earl
about this. I suppose somewhere in the course of our private
practice the issue of some Northrop Grumman matter may have
surfaced, but I have no recollection of that.
Mr. Wilson. In September 1998 do you have any recollection
of having any conversations with Mr. Silbert about any matter
pertaining to Northrop Grumman?
Mr. Ruff. I do not. I'd be perfectly happy to have my
memory refreshed, but I don't have any recollection.
Mr. Burton. Counsel's time has expired. Counsel.
Mr. Schiliro. Mr. Lindsay, yesterday we went over this. You
weren't here. I just want to go over it with you.
When counsel was just asking you questions about funding in
1999, the decisionmaking process then wasn't focused on a
response to subpoenas or subpoena compliance. The issue, as we
understood it yesterday from the testimony we received, it was
an archival issue?
Mr. Lindsay. Exactly, sir.
Mr. Schiliro. The mindset at the White House at that point
wasn't that you were violating subpoenas or weren't producing
information to subpoenas but that you should fix the problem
because there was an archival responsibility that had to be met
to satisfy Federal law; is that correct?
Mr. Lindsay. Exactly, and keep in mind that we had been
engaged in reconstruction of Reagan era, Bush era and early
Clinton administration tapes, which I discussed on numerous
times with our appropriations folks. I had people from the
committee come down and view the tapes. The issue of
reconstruction and the issue of the archival issues were all
folded into one, and those were things that I had no qualms
about discussing with my appropriators and did.
Mr. Schiliro. So is there anything else that we need to
know about the 1999 decisionmaking process in getting funding
or not getting funding?
Mr. Lindsay. The only other thing I would add is that it's
easy now to look back and look at the situation for Y2K and not
appreciate the severity of the circumstances. But for us, after
coming from a period of having less funding and an antiquated
information technology network, we were faced with a prospect
of not having a system operating that would serve the President
of the United States. That was something that, frankly, we had
to do everything in our charge to make sure we didn't do. We
had that mandate from the Appropriations Committee, and we got
it we felt from Congress in terms of their support to go about
doing that, and that what we endeavored to do, and we placed
that as our first priority. And because all of these other
issues of the operation of the e-mail system and other systems
would become moot if our computer systems did not operate
properly.
Mr. Schiliro. I assume your thinking would have been
differently had you thought that this was a subpoena compliance
problem.
Mr. Lindsay. That is exactly correct, sir.
Mr. Schiliro. And notwithstanding the Y2K problems, you
would have devoted whatever resources had to be devoted in
order to meet the requirements of subpoenas?
Mr. Lindsay. Exactly correct, sir.
Mr. Schiliro. Mr. Ruff, counsel made the point which I
think is the accurate one, you had no idea of the content of
the e-mails, you testified to that before, so that the idea
that somebody was making a conscious effort from keeping these
e-mails public would be inconsistent with the notion that you
didn't know what was in the e-mails? There might be exculpatory
material there, so why would you be trying to keep something
quiet if you had no idea what the content was.
Mr. Schiliro. Exactly so.
A broader statement I suppose is appropriate which is,
good, bad or indifferent information, we would never have kept
something quiet.
Mr. Schiliro. Mr. Ford.
Mr. Ford. Very quickly, I want to ask counsel if he
wouldn't mind, in his mind was it more important for--and I
appreciate our counsel clarifying some of these issues for all
of us and perhaps even some on your side of the aisle, but
would you believe--Mr. Chairman, perhaps you can answer as
well--would you believe it was more important for them to
satisfy an archival responsibility or to ensure the President
of the United States and all that the Presidency brings that
the operating system at the White House and the information
technology system at the White House did not collapse?
Again, I appreciate Mr. Lindsay pointing out for us that at
this point it's easy to say that perhaps we overreacted to a
potential Y2K problem, but in light of the hearings held in
this committee by Mr. Horn, by the concerns raised by other
committee members, Mrs. Morella as well as Members on this side
of the aisle, do you believe that perhaps--I'm suggesting to
counsel as well, if he wouldn't mind responding--that they
acted inappropriately or perhaps wrongly for prioritizing the
way they did?
I would argue that even if you had been subpoenaed that I
would hope that your first priority would have been to ensure
that the operating systems at the White House did not collapse.
That would seem to me--but in light of the fact that that was
not the case, Mr. Chairman, that indeed it was a simple or near
archival responsibility now that I understand, would your
counsel say that----
Mr. Burton. I'll respond by saying that they were not
mutually exclusive. The funds could have been acquired to look
into the e-mail problem and hire the personnel necessary to get
to the bottom of the e-mail problem at the same time they were
dealing with the Y2K problem, but they never brought to the
attention of the appropriations subcommittee this problem. In
fact, it's deliberately crossed out, and that's one of the
things we've tried to find out, why was that crossed out, why
was it not put into a memo that was going to go----
Mr. Ford. Reclaiming my time for one moment, Mr. Chairman,
but if there was not a subpoena compliance issue problem, why
would anything that you say be relevant? And, two, if you were
in their shoes, sir, would your priority not have been to
ensure that the White House operating system was Y2K compliant?
Would that not have been your focus?
Mr. Burton. Well, the counsel has the time. That's fine. If
you ask me a question and you want me to answer it, let me
finish the answer. Don't reclaim your time. We are not on the
House floor. If you want me to answer a question, I'll do it.
If not, don't ask me any questions.
Mr. Ford. Mr. Chairman, you're the chairman of the
committee, sir, but I can reclaim my time if I choose. I'm
asking you a question. If you choose to answer it, you can, but
I will reclaim my time. You may be chairman of this committee--
you can treat these witnesses the way you choose, but you can't
treat members of this committee any way you choose. So I
absolutely defer to you to answer the question, but I will not
take orders from you in terms of when I can reclaim my time.
Again, you can treat Mr. Ruff--you can disrupt Ms. Mills'
schedule and Mr. Lindsay's schedule, but you will not----
Mr. Burton. You do not have the time. The counsel has the
time.
Mr. Ford. This is our time.
Mr. Burton. It's the counsel's time.
Mr. Ford. He's yielded to me.
Mr. Burton. It's the counsel's time. If he yields to you,
that's fine, but don't start telling me it's your time.
Mr. Ford. If you, Mr. Chairman, were working at the White
House and charged with ensuring the White House operating
system was Y2K compliant and you had a charge also to update
this archival system, this responsibility that Mr. Lindsay has
spoken of and our counsel, what would you have done? And I
yield to you if my counsel believes it's OK, and I believe that
he does, Mr. Chairman, and I would ask your counsel as well
who's whispering in your ear now if he were there what would he
have done.
Mr. Burton. The least the White House could have done, the
least was to tell the relevant committees of Congress that had
subpoenaed documents and the independent counsels that there
was a problem. They chose not to tell us anything, none of us,
even though legitimate subpoenas had been sent. So even if they
weren't going to solve the problem, the problem should have at
least been brought to our attention.
Mr. Ford. Again, if you were in their shoes, what would
have been your top priority, Mr. Chairman, at a time when the
Nation was braced to deal with a computer breakdown, a collapse
of our banking system, our FAA and other important government
agencies, what would you have done, sir? Would you have done
anything different at the time in which Mr. Lindsay was faced
with tackling a problem that I would imagine none of us would
have probably wanted.
Mr. Burton. I would have done something different, and I've
explained that, and I will explain it one more time. They're
not mutually exclusive. What I would have done is I would have
asked the Congress, the Appropriations Committee, for the money
to take care of the e-mail problem. Because all they needed was
the money and the personnel, and they didn't even ask the
Congress for it. In fact, it appears as though they didn't want
the Appropriations Committee to know about it because they
didn't want the e-mail problem brought to the surface.
Mr. Ford. It appears to me, and I think any reasonable
observer could probably agree, that what we have is a problem
and a fundamental problem is that you guys have answered
questions sufficiently, those at the White House, but some on
this committee are looking for different answers, and
unfortunately you cannot provide the answers they want because
it's simply not true.
Now, I can respect the fact, Mr. Chairman, that those on
your side--and, you know, you suggested it's a mutually--
they're not mutually exclusive. I'm glad you all made the
decision that you made at the White House in terms of
prioritizing which responsibilities were more important. I can
assure you that if you had followed the lead of this chairman
and this Republican side here on this committee that not only
would you have been back before this committee answering
questions as to why you allowed the White House operating
systems to collapse, that you would have had this Congressman
and Congressmen all throughout this Chamber, Democrats and
Republicans, lambasting you, Mr. Lindsay, and your office for
following the lead of this chairman in trying to fulfill an
archival responsibility because of this perverse and bizarre
and seemingly endless appetite we have for Monica Lewinsky and
all that that entails.
I am proud to say that this White House prioritized
correctly. I am pleased and refreshed and somewhat surprised to
hear that Mr. Chairman has said that maybe if you all had come
back and made the request we would have provided the resources.
I hope, Mr. Ruff, that you're probably pleased to hear this as
well with your passion for children. Perhaps if we figure out a
way to come before this committee and ask for more moneys for
school construction perhaps we can persuade this chairman and
others on that side to go before the Appropriations Committee
to make that request as well.
I'm pleased you made the decision that you made. I'm
pleased that you're here today. It's unfortunate, Ms. Mills and
others, that your schedules have been disrupted, but it is my
sincere hope that when all of this is over, and we only have 7
months left, thank God, that we will offer the three of you and
so many others in this administration whose reputations have
been smeared and tarnished an apology from this committee,
starting with this chairman, this committee, and the others in
this Congress for all that we have put you through.
Ms. Mills, I apologize, Mr. Lindsay, I apologize, Mr. Ruff,
I apologize, not only to you but to your families for all that
you've had to go through, not because we've asked these
questions, these are legitimate questions, we have an oversight
responsibility here, but I apologize for the personal attacks,
I apologize for the incredulous behavior of some of my
colleagues and more so again I apologize again for this bizarre
appetite for more Monica Lewinsky.
With that I yield back to my counsel whom I hope would
yield back to the chairman.
Mr. Schiliro. Mr. Chairman, we have 20 minutes remaining
and we'll yield it back.
Mr. Burton. The gentleman yields back the balance of his
time. Who seeks time on our side? No one seeks time. Mr. Barr.
Mr. Barr. Mr. Lindsay.
Mr. Lindsay. Yes, sir.
Mr. Barr. I think you testified before this committee last
month here again that your No. 1 objective was to make sure
that this problem was resolved. And we went into what exactly
that meant. Leaving aside our different interpretations,
obviously some substantially different, of what ``resolve''
means, yesterday again going back to exhibit 94, and Mr.
Heissner's testimony, you may recall that Mr. Heissner made
corrections to a bullet point relating to the MAIL2
reconstruction. Both Mr. Heissner and Mr. Lyle testified
yesterday that these changes were made in preparation for your
testimony before congressional appropriators on March 2, 1999.
Mr. Lyle also testified that Kate Anderson of your staff
deleted this corrected bullet point from the final memo they
used to brief you for the appropriations hearing. Were you
aware that this deletion had taken place?
Mr. Lindsay. What exhibit number is that, sir?
Mr. Barr. 94.
Mr. Lindsay. 94? That's the Heissner e-mail is what I have
got it as. Is that the one you're referring to, sir?
Mr. Barr. The Heissner.
Mr. Lindsay. OK. Got it.
Mr. Barr. So you were aware that that deletion had taken
place?
Mr. Lindsay. No, I was not, sir.
Mr. Barr. You were not. OK. Was the deletion of an accurate
description of the MAIL2 problem from a memo used to assist you
in informing Congress consistent with trying to do your best to
resolve the e-mail problem?
Mr. Lindsay. First----
Mr. Barr. First inconsistent.
Mr. Lindsay. First, I think it deserves a little
explanation. First, the briefing book was a briefing book for
me to testify before Congress. I didn't need briefing points on
matters that I already knew. I needed briefing points on those
matters for which I was unfamiliar or had numerical
information, data, personnel changes, things like that. That's
the kind of information that belonged in the briefing book, not
information about something that I was familiar. Therefore,
though I didn't know it at the time that Ms. Anderson removed
that information, I believe it would be appropriate for her to
do so because she knew that that's something I already knew
something about and it would be inappropriate to be included in
my briefing book. And the briefing book was for me, not for the
members of the committee. If they were to ask me a question
about that matter at the time or at the hearing they could have
asked me the question.
Mr. Barr. Somebody used--if somebody had in mind a common
sense notion of what a briefing book is and that is to place
those items that are important for a person testifying before
Congress, that is not the way you would use a briefing book?
Mr. Lindsay. No.
Mr. Barr. The only thing that would be in a briefing book
in preparation for preparing you to speak to a committee are
things that you don't know?
Mr. Lindsay. Things I don't know, essentially or very, very
detailed information, numerical data, things like that that I
may receive questions about so I could respond to the questions
to the committee.
Mr. Barr. There were bullet items in there on things that
you did know like Y2K?
Mr. Lindsay. The Y2K issue is, as you can imagine----
Mr. Barr. It's there because it was important.
Mr. Lindsay. It was there because it was a vast issue. It
involved----
Mr. Barr. An important issue?
Mr. Lindsay. That also, sir.
Mr. Barr. It was an important issue.
Mr. Lindsay. That also.
Mr. Barr. The MAIL2 problem wasn't there?
Mr. Lindsay. Because I already knew about it, sir.
Mr. Barr. I believe it was also your testimony when you
testified before Mr. Kolbe's subcommittee you never even
brought the MAIL2 problem to his attention?
Mr. Lindsay. No, I didn't. Mr. Kolbe asked me most
questions about Y2K and my opening statement and most of the
discussion was about Y2K.
Mr. Barr. So Mr. Kolbe just didn't ask the right questions?
Mr. Lindsay. No, I had talked with people on the committee
about reconstruction issues in the past or at the course of the
relationship that I had with the committee. The issue of the
day was getting the resources and they had expressed very
significant concerns about us providing the appropriate
justification for receiving the resources that we needed to
get. I knew that if I was unsuccessful in getting those
resources, I would fail in my mission to get the resources to
help.
Mr. Barr. The best way to get them would be just to not
bring it up?
Mr. Lindsay. No. I did bring up the Y2K issue. That's why I
talked about it.
Mr. Barr. I'm talking about the MAIL2 issue, not the Y2K.
The MAIL2 issue was not brought up?
Mr. Lindsay. No, it was not brought up.
Mr. Barr. It was specifically deleted?
Mr. Lindsay. No, it was not specifically deleted from any
kind of----
Mr. Barr. It was inadvertently deleted?
Mr. Lindsay. No, it was not deleted from any topic for
discussion. It was removed from the briefing book which
contained information for which I was not familiar. Primarily
for detailed information which I didn't have a specific
recollection, I would have to refresh my recollection and I
could use as a reference.
Mr. Barr. You're saying you were familiar with the MAIL2
problem?
Mr. Lindsay. Very much so.
Mr. Barr. And you have also testified that it was an
important issue; its resolution was an important issue?
Mr. Lindsay. It was an important archival issue, not as
important as receiving resources for Y2K and answering the
other questions of the committee. They had----
Mr. Barr. It was not an important issue to assure
compliance with lawful subpoenas, it was important only for
archival issues? Now we're splitting that hair?
Mr. Lindsay. Of course compliance with lawful subpoenas is
very important, but that was not the issue that was before me
then and that wasn't the issue that was in question there. At
least that wasn't my----
Mr. Barr. That's right. Your definition of resolving the
issue meant only to the technical question of resolving the
issue from that point forward?
Mr. Lindsay. In this particular instance, the e-mail issue
was an archival issue and a technical issue of resolving a
glitch. It didn't relate at that time in my thinking to
production of documents or subpoenas.
Mr. Barr. Bottom line is you didn't bring it up, even
though you're trying to convince us that you thought this was
an important issue and you wanted something done with it and it
was a high priority with you. But you didn't even take
advantage of an excellent opportunity before the chairman of
the subcommittee that had authority to basically provide funds?
Mr. Burton. Mr. Shays.
Mr. Lindsay. I don't agree with the characterization of my
testimony, sir.
Mr. Barr. I'm sure you don't.
Mr. Burton. Mr. Shays.
Mr. Shays. I was not going to jump in here but this is
bizarre as can be. You're basically telling us you had a
presentation to be made before the Appropriations Committee.
Did you present all the items in the document?
Mr. Lindsay. All what items in the document?
Mr. Shays. All the items that were in this document.
Mr. Lindsay. What document is that, sir?
Mr. Shays. 134, exhibit 134. I think it's 5 pages, isn't
it? Take your time.
Mr. Lindsay. OK. What was your question, sir?
Mr. Shays. Are you familiar with this document?
Mr. Lindsay. I have seen it before.
Mr. Shays. This is the--this was your preparation document
before the Appropriations Committee?
Mr. Lindsay. This document I have seen after the hearing
fairly recently. The information that actually ended up in my
briefing book I did not do a comparison to see if this is
exactly the same.
Mr. Shays. So you're going to tell me and the committee
that this is a document that was prepared for your briefing and
you don't really remember seeing it or not but you can speak
with such certainty about the fact that one thing was taken off
because you knew about that really well. Did you know about the
MAIL2 reconstruction better than you knew about all the other
items in this document? I want you to take the time to look at
the document. So all the other items you knew less about than
the MAIL2 document?
Mr. Lindsay. Some of them, yes, because they're specific
numbers associated with matters. But let me make this very,
very clear. The document that was actually included in my
briefing book was not this document.
Mr. Shays. I understand. I understand. No, I'm just trying
to understand something.
Mr. Lindsay. And I don't know what other deletions may have
been made from this document, from the document that actually
ended up in my briefing book.
Mr. Shays. See, what's difficult for me just being this
common nonlawyer, what's difficult for me is in the course of
your day here you knew very little about this problem with the
MAIL2 and you didn't have documents but you said you knew so
much about it you didn't need information about it in your
briefing. You did. You didn't need information about it in your
briefing, which would imply that you knew more about that than
any of the other items here and I think that's simply not true.
I think you know more about some of these items than the MAIL2.
So it makes me begin to get more interested in what I consider
are very evasive answers which you would think are not evasive.
Tell me an item here that you knew better than the MAIL2
problem.
Mr. Lindsay. There were several issues associated with why
we need to get Y2K issues and why we need to get funds for it
that I was more familiar with which I didn't include in the
briefing book because those are things that I was very familiar
with. The issue----
Mr. Shays. Don't talk so quickly here. You were more
familiar with what?
Mr. Lindsay. For example, the impact on people of not
getting the resources in a timely fashion. That is something
that was very, very important to me. The fact that the--we were
facing delays----
Mr. Shays. I'm not dealing with important now. I am dealing
with a simple question of what you knew more about or what you
knew less about. Your only justification for why this was
crossed off, your only justification was that you knew so much
about it you didn't need to have it in your briefing book. I
think that's absurd. And I prepare briefing books for myself
and what happens in a briefing book, you put all the items you
intend to speak about. And it tells you where you're going to
fit in and what you're going to talk about, what you're not
going to talk about. So you're telling me you knew so much
about the problem of the MAIL2 problem that you didn't need it
in your briefing book. But we have struggled to get you to tell
us even basic things about what you knew about MAIL2. I am
asking this question. Are you telling me that you didn't know
about method ITT, that you didn't know about IS&T leadership,
and therefore you needed that in there. You didn't know about
mission critical system highlights. You didn't know about all
these other things and those need to be in there but MAIL2
problem, no, you knew about that so that didn't need to be in
there. Is that what you're saying?
Mr. Lindsay. No, I'm not saying that.
Mr. Shays. OK. So why don't you give me another story then.
Mr. Lindsay. The briefing book, obviously I used the
briefing book differently than you use your briefing book. I
was using it to address not only those issues that were
important but those issues where I needed to have cues, either
verbal cues or information cues, for me to provide testimony
and to respond to the questions which were most likely to come
up at the hearing. Y2K issues were issues that I was informed
by the members of the committee were certainly going to be
issues that were going to come up at the hearing. Therefore, I
would go into greater detail in my briefing book for what
information was included.
Mr. Shays. So the real answer then is since we didn't know
about the MAIL2 problem you weren't going to be asked about it,
no point in having it in your book?
Mr. Lindsay. No, sir.
Mr. Shays. Did we know about the problem?
Mr. Lindsay. I don't know, sir.
Mr. Shays. Why would we know about the problem? You guys
didn't tell anybody.
Mr. Lindsay. There were lots of--I had discussions with
Northrop Grumman, I got a letter from someone in Kentucky who
works for Northrop Grumman about the matter. There are lots of
people----
Mr. Shays. Let's be clear. Who did you talk about? Who?
Mr. Lindsay. It's not that I talked about it, it's just the
record is replete with examples of people within the Office of
Administration and people on the outside of Office of
Administration.
Mr. Shays. Anybody in Congress?
Mr. Lindsay. Not to my knowledge.
Mr. Shays. So don't tell us that we would know in Congress.
That's a little disingenuous.
Mr. Lindsay. I cannot testify as to what Members of
Congress knew.
Mr. Shays. No. The people at Northrop worked for you, they
didn't work for us. They were your employees. It was your
system, you knew about the system, we didn't. At least give us
that. With all the other things you can be, don't be
disingenuous you thinking that we already knew. Please don't do
that.
Mr. Lindsay. Northrop Grumman was not my employee.
Mr. Shays. Whose employee were they?
Mr. Lindsay. They were contractors. Independent
contractors.
Mr. Shays. Contractors to the White House or to the
Congress. Who were they contractors to?
Mr. Lindsay. To the White House.
Mr. Shays. OK. They are your contractors. They're not your
paid employees. They are working for you, not Congress. I'm
just asking at least give us this, don't suggest now that you
thought we knew about this problem. That's really being
disingenuous.
Mr. Burton. The gentleman's time has expired. Unless
members have further questions of this panel, we will bid them
ado. I would like to leave them with, and I hope they take a
look at these memos from Mr. Barry and others, talking about
how critical it was to get to the bottom of this as quickly as
possible and nothing happened. But if there is no more
questions of this panel we will thank you for your patience and
your testimony. And to answering the questions that you did
answer. And we'll let you go and we'll come back in about 10
minutes and get to the next panel.
Mr. Ruff. Mr. Chairman, I just have one question. I want to
be sure that I don't take this home accidentally. A member of
the staff appears to have left a campaign button in our
briefing book here and I just--whoever it belongs to can pick
it up. I'll leave it right here for them.
Mr. Burton. That's right. Thank you very much. It's not
mine, I don't think. We stand in recess.
[Recess.]
Mr. Burton. I've been informed that the button to which Mr.
Ruff alluded was not left by any Member of Congress but by
somebody in the audience and that it had some lewd material in
it and the person who put the button on the desk has been asked
to leave the room. So that problem is solved. The committee
will reconvene.
Thank you, Ms. Nolan, for being here. Mr. Nionakis, thank
you. Would you please stand and be sworn?
[Witnesses sworn.]
STATEMENTS OF BETH NOLAN, CHIEF COUNSEL TO THE PRESIDENT; AND
DIMITRI NIONAKIS, ASSOCIATE COUNSEL TO THE PRESIDENT
Mr. Burton. Be seated. Mr. Nionakis, we wanted to have you
here today. We're not disappointed that the chief counsel of
the President, Ms. Nolan, is with us, but you're the person
that we really wanted to talk to. So do you have an opening
statement you would like to make?
Mr. Nionakis. I do not, sir.
Mr. Burton. OK. Just 1 second.
I think we'll start off, without objection from Mr. Shays,
with the counsel doing the questioning in accordance with the
rules passed by the committee today. So counsel.
Mr. Wilson. Mr. Nionakis, good afternoon.
Mr. Nionakis. Good afternoon, Mr. Wilson.
Mr. Wilson. Ms. Nolan.
Ms. Nolan. Mr. Wilson, good afternoon.
Mr. Wilson. Thank you very much for the--I'm glad that we
could resolve ultimately the differences we had and thank you
very much for the calls we had last night. There are a few
things that I wanted to cover and I'll try and give you a sense
of where I'm going before I get there just so as to try and be
as direct as possible.
One of the things we talked to the previous panel about was
a test that was conducted to ultimately determine whether there
was a problem that had ramifications for document production.
Now, one of the things that we have been told is that after the
problem was discovered in June 1998, the e-mail problem was
discovered in June 1998, there were contacts with the White
House counsel's office, and ultimately some type of test was
conducted to determine something. And we're not quite sure what
because it's been difficult for us. And I'm not sure, Mr.
Nionakis or Ms. Nolan, whether you have any knowledge about
this but this is one of the things that we're trying to
determine. What we want to find out is whether the White House
did a thorough job and made a fair assessment of whether there
were any documents that should or should not have been
produced. So let's just start with the threshold question. When
did you first become aware of the--and I'll use the shorthand.
It's the MAIL2 user problem but I'll just call it the e-mail
problem. That's what we're going to be talking about for the
next 45 minutes or hour or so--but when did you first become
aware of the e-mail problem?
Mr. Nionakis. It was about February 2000 of this year.
Mr. Wilson. You had no knowledge at all of the problem
prior to news accounts, is that fair to say?
Mr. Nionakis. I believe it was either news accounts or from
people with whom I work, working on those matters that are
reported in those news accounts on or about February 2000, yes.
Mr. Wilson. OK. That may well eliminate some questions. Mr.
Ruff had indicated that you may or may not have been involved
in some of the initial searches or some of the initial
considerations of the e-mail problem. I'll eliminate a lot of
questions by asking you the very simple, very simple one. Do
you know what the search terms were that were used in 1998
after the e-mail problem was discovered when the White House
was conducting a test?
Mr. Nionakis. Mr. Wilson, I was not involved in that search
and I am unaware of what those search terms were.
Mr. Wilson. I will move completely away from that. We
received some documents from the White House a couple of days
ago that were initially designated subject to a privilege. I
wanted to ask you about one of those documents. If you would,
there's a book in front of you, an exhibit book. If you could
turn please to exhibit 144. Hopefully it's been added to your
book because it was just put in last night.
Mr. Nionakis. I have it in front of me.
Mr. Wilson. If you could just take a moment and look at
that, please. These are handwritten notes. The document is
marked E 4459, and at the very top of the page it has a name
Jason Baron and a telephone number, which we have come to learn
is in Vancouver, Canada. And the name's of interest to us
because we understand that Mr. Baron used to work at the
Department of Justice.
Let me start with a threshold question. Have you seen this
document before today?
Mr. Nionakis. The first time I saw it was when I received
it for production.
Mr. Wilson. Do you know who created this handwritten
document?
Mr. Nionakis. Yes.
Mr. Wilson. Who did create the document?
Mr. Nionakis. I believe that handwriting is Jack Young's
handwriting.
Mr. Wilson. And Mr. Young I believe is the general counsel
of the Office of Administration, is that correct?
Mr. Nionakis. One moment, please. I believe that's correct.
He's the general counsel of the Office of Administration.
Mr. Wilson. In the privilege log we received----
Mr. Nionakis. Excuse me, Mr. Wilson, I want to amplify
that. I believe he's on medical leave right now. That's why I
was hesitating as to his status.
Mr. Wilson. I appreciate that. I'm not quite sure of his
status myself but we don't need to discuss that. With this
document a privilege log was produced and the document is
described as follows: And I quote from the privilege log
produced by counsel's office, handwritten notations of OA
general counsel of conversations with Department of Justice
attorney regarding issues raised by inquiries related to the
White House e-mail system. Do you know who prepared that
description.
Mr. Nionakis. Yes. I did.
Mr. Wilson. Did you? Is Mr. Baron in fact a Department of
Justice attorney.
Mr. Nionakis. As I said at the time that I prepared the
document, my understanding was that he was a Department of
Justice attorney. I just want to point out that the document,
the draft log of documents subject to privilege is indeed a
draft. It was prepared because we were trying very hard to
produce that draft to you with the other documents that we
produced last Friday. And I received these documents the day
before I sent that privilege, that draft privilege log up to
you. So that is why for a number of reasons why I call it a
draft, because it certainly would be subject to any corrections
if I obtained more accurate information after that.
Mr. Wilson. I don't have many questions but let me explain
where I'm going before I go there and it may be of some
assistance to cut the time back. It's our understanding that
Mr. Baron was a Department of Justice attorney and was
contacted at the time that the MAIL2 problem was first
discovered in 1998, individuals from the White House or Office
of Administration contacted Mr. Baron. And I'll be perfectly
honest, we don't know what his position is at the Department of
Justice or even whether he's still there but it's of some
concern to us because we have been trying, the committee has
been trying to speak with Department of Justice attorneys. And
the Department of Justice has advanced their argument that we
should not be able to talk to line attorneys and we understand
that argument and we are talking to them about that. We're
trying to determine whether anybody from the White House in
fact contacted Mr. Baron. Do you know whether anybody called
Mr. Baron?
Mr. Nionakis. I believe Mr. Young did given that--from what
I gather from this document I believe he did, but I don't know
that anybody else did.
Mr. Wilson. Do these notes represent as far as you can
understand, I know you did not create them, do these notes
represent notes taken by Mr. Young when he was talking to Mr.
Baron?
Mr. Nionakis. I would not know. I think you would have to
ask Mr. Young that question.
Mr. Wilson. Do you know if anybody else has had any
contacts about Mr. Baron?
Mr. Nionakis. Not to my knowledge, no.
Mr. Wilson. I mean obviously I'm aware that you're an
employee of the executive branch and the Department of Justice
is also very much a part of the executive branch, but we have a
concern and I would like you to help me work through this
concern that whereas the committee has requested a special
counsel to be appointed in this matter because of a perception
that the Department of Justice is on both sides of an issue,
the same issue, this e-mail issue, civil division attorneys
have been assisting the White House and now there is apparently
a campaign financing task force investigation of possible
obstruction of justice, we're trying to determine whether the
White House has actually been talking to Department of Justice
attorneys and getting advice or assistance contemporaneously.
Do you know when these notes were created?
Mr. Nionakis. I do not.
Mr. Wilson. Well, we appreciate that we can ask Mr. Young
some of these questions. If you would, in your book----
Mr. Burton. Does Mr. Young work with you?
Mr. Nionakis. Mr. Young works in the Office of
Administration. He's the general counsel for that office. I
work in the White House counsel's office.
Mr. Burton. So you don't have direct contact with him on a
regular basis?
Mr. Nionakis. I have contact with him but since he has gone
on medical leave I have not had direct contact with him.
Mr. Burton. I see. Did you talk to him about this note?
Mr. Nionakis. I did not talk to him about this document,
no.
Mr. Burton. So you didn't have any knowledge of whether or
not he talked to Mr. Baron directly?
Mr. Nionakis. It's my understanding--excuse me. Are you
asking about Mr. Baron or Mr. Young?
Mr. Burton. Yes. Did you have any knowledge whether he
talked to Mr. Baron, Mr. Young?
Mr. Nionakis. I believe at one point Mr. Young told me that
he did speak to Mr. Baron.
Mr. Burton. Do you know the contents of that conversation,
did he tell you anything about it?
Mr. Nionakis. I believe that the subject matter was that--
and this is to the best of my recollection--that Mr. Baron had
provided some assistance regarding I think it was an Armstrong
issue. And he called him up about that. But again, my
recollection is very foggy on that and I do not know exactly
what that conversation was about.
Mr. Burton. But you don't know of any other content of that
conversation other than you think he may have talked to him
about the Armstrong?
Mr. Nionakis. I do not recall any other content of that
conversation.
Mr. Wilson. If you could, in the book in front of you,
please take a look at exhibit 60.
Mr. Nionakis. 60?
Mr. Wilson. Yes. And that's a letter from yourself to a
member of our staff Andre Hollis, who's a senior counsel on
this committee. It's a letter about searches conducted by the
White House for documents related to the Waco tragedy. If you
take just a moment and at least refresh your recollection. Now,
I just wanted to----
Mr. Nionakis. I'm sorry, one moment.
Mr. Wilson. Sure.
Mr. Nionakis. OK.
Mr. Wilson. I really just want to direct your attention to
one representation made in the letter. Toward the end the
paragraph that begins before the numbered points, you note that
the--actually that's not what I'm looking at, the final
sentence I believe is the EOP believes that this search
sufficiently covered the scope of the committee's subpoena.
Now, given that you've just indicated that you only learned
about the e-mail problem this year, can you tell us whether you
believe that this--is this statement still accurate or is this
statement not accurate?
Mr. Nionakis. First of all, I would like to say that I had
several conversations with Mr. Hollis about the subpoena. I
think we reached a reasonable accommodation on this in which we
did produce, as the letter states, certain documents. I cannot
say one way or the other whether given my awareness of the
MAIL2 and letter D errors now that we have indeed provided
everything. And of course, we would go back and search those
materials as soon as they are available.
Mr. Wilson. That's what I'm getting at. If you have the
opportunity now you would do that search and that would be--
that would enable you to make a representation that you had
looked in all of the places that might be relevant to this
document production?
Mr. Nionakis. We would certainly look there, yes.
Mr. Wilson. Yeah. That's not to say there's anything there,
but it's a place to look. And this letter does stand for
something that we discussed in the previous panel. It's very
important to note that here this is a situation where you did
come to an accommodation with us, and we mutually agreed that
there were certain things that did not need to be produced and
it was embodied in the letter and we appreciate those
conversations.
Mr. Nionakis. As do I, Mr. Wilson. I think you and I have
had many discussions, we have had many differences but I think
we've reached many, many agreements on previous occasions about
documents and productions and so forth.
Mr. Wilson. Once the White House learned about the MAIL2
problem, have there been any discussions that you've been privy
to where individuals have suggested that bodies that have
sought documents such as ourselves should be officially
notified that searches that have been conducted in the past may
not be complete?
Mr. Nionakis. I believe our office has attempted to notify
those bodies and certainly respond to any inquiries from those
bodies.
Mr. Wilson. I mean, I'm looking more for something formal.
We obviously know there have been lots of newspaper articles
and discussion in various venues but one of the things that I
don't think we have to this day is any type of certification
that there may be places that you should look for documents.
And I'm being--you know, I'm dancing around this--that would be
the e-mails that are under consideration. There does not appear
to be a sort of an official statement that there may be places
that you do need to look. Perhaps this is something that could
be provided to us.
Ms. Nolan. Mr. Wilson, if I may interrupt for a second
since I think you're asking for something from our office. What
is it that you would like us to provide to you?
Mr. Wilson. Well, just as in the past we received
certifications that to the best of your knowledge documents
have been produced, though we have to live in the framework of
statements made by White House counsel and others about what's
going on here, it would be helpful to us to have some type of
official recognition that there are materials or there are at
least documents that need to be searched for responsiveness.
That's obviously not a representation that there's anything
there but at least a representation that there are documents
that need to be searched for responsiveness and I guess that's
a request that we're making of you now. And we can discuss that
later.
Ms. Nolan. Certainly, Mr. Wilson. I just want you to know
that one of the things we've been doing is going back to
collect all previous investigative requests and identify for
ourselves what requests might have covered the MAIL2 or letter
D problems and identify those so that we can then know, have
the entire universe of searches that need to be done and we
would certainly notify this committee and other investigative
bodies once we've completed that list.
Mr. Wilson. This may not be the time or place to have this
exchange but is there a current plan to prioritize searches
that the White House counsel's office has developed?
Ms. Nolan. Our plan is to work in coordination with the
relevant investigative bodies to come up with a list of
priorities.
Mr. Wilson. OK. I only ask that because that process has
not yet begun.
Ms. Nolan. My understanding is that some people have made
some initial identification of what they think would want to be
done. But we've been quite clear that we cannot set priorities
until it's done through the counsel's office with the
investigative bodies.
Mr. Wilson. That sounds somewhat like an elective process.
It sounds like your putting the ball in our court to now
provide----
Ms. Nolan. No. No. No. We will notify when we're ready to
make those priorities so that you can participate in those
discussions. I'm not expecting you to think you need to come
forward.
Mr. Burton. Mr. Nionakis, you said, I think, that you
didn't know about the e-mail problem or were not made aware of
it until when, February of this year?
Mr. Nionakis. 2000, yes sir.
Mr. Burton. How long have you been the White House
counsel's office?
Mr. Nionakis. Since early March 1997.
Mr. Burton. 1997. And you worked closely with Ms. Mills and
Mr. Ruff?
Mr. Nionakis. They were my superiors, yes.
Mr. Burton. You never heard anything about the e-mails or
knew anything before the problem until February of this year?
Mr. Nionakis. That's correct, sir.
Mr. Wilson. Ms. Nolan, I would just like to followup on
something that we discussed at the last hearing and this is one
reason it's very helpful for you to have returned. You
indicated to us that you would investigate the e-mail matter
and I'm wondering whether you've made any inquiries as to what
the search terms were that were used back in 1998 when the
problem was first discovered.
Ms. Nolan. Mr. Wilson, I do not know what the search terms
were. I've not been able to identify them. We were able to
locate the materials and provide them to the independent
counsel, who now has them and is finishing that investigation,
conducting that investigation.
Mr. Wilson. Is it fair to say that you have gone to all of
the relevant places and asked all of the relevant people and
they've simply been unable to identify what the search terms
from 1998 were?
Ms. Nolan. I have not been able to identify who asked for
the search to be done or what the search terms were and I've--I
or my staff have asked I think everyone we could think of.
Mr. Wilson. Now, if we can just turn for a moment to the
privilege log that was produced and I know that Mr. Nionakis
made a representation that it was a draft log, but one of the
difficulties we confronted and it's been an ongoing concern of
ours over the past 2 years----
Ms. Nolan. I'm sorry, Mr. Wilson, do we have the privilege
log here?
Mr. Wilson. I can provide you a copy. I'm not sure if it's
an exhibit. I didn't want it in the book. If you could wait
just one moment we'll have a copy brought down to you.
I looked down. Did you get the copy of the privilege log.
They disappeared. Ms. Nolan, while we're waiting one of the
questions I was going to ask at the end was whether or not the
Department of Justice has interviewed either yourself or
members of your staff. Have interviews been conducted of your
staff?
Ms. Nolan. I have met with the Department of Justice
regarding this matter. They've not interviewed me. And they
have requested interviews of certain members of the staff. And
I believe my staff is coordinating with them to make those
available. I don't know which ones have been accomplished yet.
Mr. Wilson. So those will take place at some point in the
not too distant future?
Ms. Nolan. You would have to ask the Department of Justice
when they'll take place but the ones that have been requested
are being set up, yes.
Mr. Wilson. If we could hopefully now--do you have a copy
of the privilege log? If you take just a moment and look at
that.
Ms. Nolan. Sure.
Mr. Wilson. I'm not going to ask any detailed questions. I
just want to ask about the subject of executive privilege
claim. In my experience claims of executive privilege are quite
extraordinary. I know that President Ford made one such claim,
President Carter made one executive privilege claim. President
Reagan made 3 claims, President Bush made 1 claim, President
Clinton has made 14 claims. Now, this stands for the
proposition that it's quite rare to claim executive privilege.
And I guess what I'm looking at here, having looked at
these documents that have been submitted to us and I know that
privilege was not claimed for them, but they were withheld from
us subject to privilege initially. Many of these documents
don't appear to come even close, remotely close to qualifying
for executive privilege status. For example, there was what
appears to be a handwritten note by the counsel, not even White
House counsel but the Office of Administration counsel, about a
document that was discussed at our previous hearing and the
extent of the document is not great as it has the document
number and a few other words on it. And it's--I'll characterize
this but it's obviously vexing to us to see documents like that
put under a subject of executive privilege claim. From our
perspective it would be easier just to get those documents with
a little bit less difficulty. My question, and I'm rambling
here, but my question is did the White House have any
consultation with the Department of Justice before it submitted
the privilege log to us?
Ms. Nolan. We did not have consultation with the Department
of Justice before we submitted the privilege log. I should tell
you that the normal process here which I'm aware of from my
time in government service starting in 1981 at the Justice
Department is that agency general counsels normally make
initial determinations about what they think may be subject to
privilege. They then engage in discussions and what is the
constitutional accomodation process with the relevant
congressional committee.
And when at the point at which accommodation may not be
succeeding the Department of Justice is often then brought
there to determine whether there should be in fact a formal
assertion of executive privilege. So this was at the very start
of the process, not a place where we normally would engage the
Department of Justice unless we had some peculiar issues.
And I would disagree with your characterization here. What
these were were attorney work product either in preparation for
this investigation or after the matter was discovered and the
lawyers knew that there would be such an investigation. These
weren't documents about the discovery of the MAIL2 problem at
the time. They were in fact the documents of the lawyers
preparing for an investigation, classic attorney/client or
attorney work product as subsumed in executive privilege for
the executive branch, the kind of thing that is routinely put
on a privilege log and then discussed with the committee in
which the executive's interest in keeping those documents
confidential is balanced against the committee's legitimate
needs to receive the information.
Mr. Wilson. I understand your concerns. I do understand the
valid concerns of attorney work product or attorney/client
privilege aspects but executive privilege claims should be made
sparingly and we would take them with a great deal of
seriousness and from our perspective it appears that there's a
cheapening of the executive privilege claim when there's almost
a blanket referral to all documents as potentially subject to
executive privilege.
Now I understand from your answer you can extrapolate all
documents that go to executive privilege ultimately but it
appears that some of these didn't come close to a serious claim
of executive privilege.
Ms. Nolan. I completely disagree, Mr. Wilson. First of all,
these were 7 documents out of over 4,000 that I believe we've
provided to you. So the place where I had concern was where the
executive might be in the position of revealing not information
about the committee's quite appropriate area of inquiry, but
instead information about how the executive was preparing to
respond to the investigation. That that would get into micro
management, into the internal deliberations of the executive
branch, that that is exactly the kind of thing that calls for a
discussion between the committee and the relevant executive
agency, in this case the White House and the Office of the
Counsel to the President. That's exactly what this does. This
log is an invitation to talk. And that's what we wanted to do.
Mr. Wilson. We appreciate that. I don't dispute what you
say there. I just have one very brief subject left and that is
documents that have been produced to us, some of the witnesses
we have talked to have indicated that they have received sets
of documents in advance of interviews or appearances here
before this committee. And I'm wondering whether you know of
documents being produced to any potential witnesses, any type
of potential witness in this e-mail matter.
Ms. Nolan. You know, I certainly saw documents before I
came up and testified. I don't know if that's what you mean but
I certainly saw some of the documents that our office had
produced or had discovered as part of my investigation. I'm
not----
Mr. Wilson. Let me take that a little bit further. Do you
know of any documents being produced to anybody who was not an
employee of the White House?
Ms. Nolan. I don't think so, but you might be able to
refresh my recollection. That's--you know, I can't think of a
specific example now.
Mr. Wilson. If you can't you can't. I understand that.
Ms. Nolan. It may be that some former employees were
provided information.
Mr. Wilson. That's what I'm driving at actually. I'm
driving at former employees and not necessarily the White House
but the Office of Administration. Do you know whether any
former employees of either the White House or the Office of
Administration were provided with any documents by the White
House?
Ms. Nolan. I don't believe I know that that was the case,
no. I can't think of any such examples. The only reason I'm
hesitating, Mr. Wilson, is it would not surprise me if a former
employee was provided with one of his or her own documents,
something like that. I don't know if that happened but I think
I would not take particular note of it. So I might have learned
of it.
Mr. Wilson. I understand. Nor would we, I believe. But it's
our understanding that much wider categories of documents you
know, many of the documents we've been looking at are e-mails
and it appears to us that documents that may be other people's
e-mails to other individuals have been provided to potential
witnesses in anticipation of their either interview or
testimony before us.
And my simple question would be, would that be
inappropriate to provide information that was not germane to
that particular person, say somebody else's private e-mails. We
got them because we subpoenaed them but what I'm asking you and
I'll ask both of you would it be appropriate to provide an e-
mail that party A sent to party B to person C, would that be
inappropriate for the White House or the Office of
Administration to do that?
Ms. Nolan. Mr. Wilson, I think you would have to see the
specific example. It would depend on whether somebody had
authorized it, it might depend on whether it was something the
person had probably previously seen but didn't have a copy of.
So I don't know that I can answer the question in the abstract.
Mr. Burton. Counsel, our time has expired. The ranking
minority member, Mr. Waxman, is recognized for 30 minutes.
Mr. Waxman. Thank you, Mr. Chairman. I want to start off
with two points: One, how accommodating this White House has
been in trying to get documents to this committee that have
been requested, even documents for which I think there's an
argument that there is no reason for you to have to turn them
over. I must say I agree that executive privilege ought to be
used sparingly but there are times when documents ought not to
be turned over to Congress appropriately, whether it's
deliberations with the President and his staff or people within
the executive branch. I don't think that ought to be made
public. I don't think that ought to be turned over to the
Congress. I don't want that to be used as an excuse to refuse
to turn over documents and it seems to me you have not made
that excuse. You've been very forthcoming in getting
information to us.
And the second point I want to make is we just had a half
hour of questions from our committee counsel of you that could
have been asked without having you come down here for a
hearing. There was nothing that was asked that I don't believe
couldn't have been discussed and resolved in a conversation on
the phone. Yet you had to drop everything that you're doing to
be here to answer these questions. And I just would hope that
in the future the majority would try to work things out through
discussions and mutual accommodations than to have your
schedule disrupted, all of the members--well, there aren't that
many but those members that are here and the press, and there
aren't many of them either, have to take all the time to be
here to go through this whole issue.
I want to contrast what is happening here with what I
experienced when I chaired a subcommittee and we had the Bush
administration in power. I was very involved in environmental
issues. And in the environmental area the law was often written
to require the Environmental Protection Agency as the agency in
charge to write the appropriate regulations. They had to do it
pursuant to the Administrative Act, the Administrative
Procedure Act. They had to follow certain protocols, they had
to have documents on the record. And then their opinions could
be challenged if they didn't have sufficient base in the record
for the conclusion they reached. That was the way the law was
written, that's the way the law was supposed to work.
Well, there was a group called the Competitiveness Council.
And that was an organization that was not in the law at all, it
was something that Vice President Quayle had organized. And
this Competitiveness Council met with the industries that were
affected by regulations. And these industries would lobby Vice
President Quayle and his staff to intervene in these
deliberations by the Environmental Protection Agency to give
the industries a break. They shouldn't have to reduce pollution
so much. They shouldn't have to spend money to meet the
requirements of the Clean Air Act or other environmental laws.
I thought this was an extralegal, if not illegal action on the
part of the administration at that time.
We requested documents from the executive branch and we
kept on getting stonewalled by them. So I was surprised to hear
the counsel talk about the number of times that executive
privilege was used by the Bush administration. Maybe they
didn't use executive privilege but they stonewalled us every
step of the way. They wouldn't even tell us what businesses and
industries wrote to them requesting that they intervene with
the regulatory agencies. This is obviously no privilege in any
way that I could understand it in terms of internal
deliberations within the White House. But they wouldn't even
give us that information.
And yet you're now being asked and have complied with
information that regards the internal deliberations of the
White House counsel's office.
So I think it is quite remarkable to compare any criticism
of your office where you sometimes draw a line and say there
are some things that need not and should not be turned over to
Congress, compared to the Bush administration where they drew
that line very, very broadly and I think misused their powers.
Now, you were here, I guess, 3 or 4 weeks ago on this whole
issue of the data base so--how many hours were you here; do you
recall?
Ms. Nolan. I think it was about 6.
Mr. Waxman. Six hours.
Ms. Nolan. Well, I had lunch.
Mr. Waxman. Your day had to be devoted basically to being
here answering questions. In addition to that, you had to
review all of the information in preparation for it, and I am
sure after you left, you had a huge headache which required at
least a couple of hours to get over before you went back to
work. There will probably be some time for all of the things
that you didn't do that day as part of your job as the White
House counsel, because basically that is what this hearing is
all about.
These series of hearings are to criticize people in the
White House counsel's office for not having paid enough
attention to one issue that wasn't really that visible at that
time when they were dealing with so many other issues before
them.
I want to start by asking you again this Mail2
reconstruction process, it is an issue over which there is some
confusion. The chairman has accused the White House of trying
to delay the reconstruction of the Mail2 e-mails until after
the election in November. He stated that the White House was
trying to, quote, run out the clock.
Ms. Nolan, do you think that accusation is accurate?
Ms. Nolan. I do not.
Mr. Waxman. Why not?
Ms. Nolan. We have spent--since coming to understand the
Mail2 and letter D problem, we have spent a huge number of
hours to try to resolve the problem. We are working very hard
at getting the problem resolved. I have attended meetings with
the Office of Administration and contractors. It is very
unusual for the White House counsel to be talking to
contractors to the Office of Administration, but I have gone to
those meetings to make sure that everybody understands what a
high priority this is, how important it is that we think
creatively about ways to get it resolved.
If we could get these e-mails searched tomorrow, I would be
thrilled about it.
Mr. Waxman. When do you anticipate that we will be getting
these e-mails before our committee?
Ms. Nolan. What I have been told is that we can start to
expect to do searches next month, and we will do that on a
rolling basis.
Mr. Waxman. Mr. Lindsay testified today that decisions
about what materials will be produced first will be made by the
White House counsel's office in consultation with our committee
and other investigative bodies; is that an accurate statement?
Ms. Nolan. That is absolutely accurate.
Mr. Waxman. So you are going to produce these e-mails and
going back over the whole data base and pulling out the e-
mails, and you will give them to our committee and the other
investigators, and you are even going to take into
consideration what we consider or what the majority and
minority consider the highest priority for e-mail information?
Ms. Nolan. We will identify what tapes should be searched
first, and we will make that determination in concert with the
relevant investigative bodies.
Now, I understand that those bodies may have disputes about
what they want to have searched first. This is a situation
where I think we will accommodate whatever agreement can be
reached by the investigative bodies. I don't have a particular
interest in which one it is so much as I have an interest in
making sure that we are able to get those things that people
identify as the highest priorities searched first.
Mr. Waxman. I wanted to know if there are any e-mails on
Monica Lewinsky because I don't think that the Starr report
went into enough detail for me. I think there is more for us to
know; and once we know it, we will certainly have enough
information on Monica Lewinsky.
That was sarcasm.
Ms. Nolan, I understand that Mr. Burton sought the
appearance of one of your staff members, Mr. Nionakis, who is
here, to explain decisions made by your office regarding the
production of certain items requested by the committee. I also
understand that you attempted to reach Mr. Burton and his staff
to discuss this request. Is that accurate?
Ms. Nolan. Yes, that is correct, and I want to say, Mr.
Waxman, that Mr. Wilson and I were able to speak last night
several times, including once late in the evening. He was able
to confer with the chairman this morning, and in those
conversations I said that if there were going to be questions
about our office's decisions regarding privilege or production
of documents, that I as the counsel wanted to answer that
rather than have one of my associate counsels answer those
questions since those are decisions of the counsel's office and
decision of the counsel.
Mr. Wilson and the chairman accommodated that request. We
had some misunderstanding about whether we were going to be
able to speak; but once we did, they accommodated that request,
and that is why I am here.
Mr. Waxman. I am very pleased to hear that, and I want to
commend the chairman for reaching that understanding. It is
only reasonable if someone wants to question the decision I
made, I don't want them subpoenaing my staff people that gave
me differing points of view. They ought to question me as to
how I decided and why I decided. Otherwise people work for you,
and they give you different opinions, they are going to feel
intimidated about giving you their best judgment if they think
that you have to go through all of the deliberative process of
everyone that works for you having to come before the Congress
and testify under oath as to what they said and their
perspective. Is that----
Ms. Nolan. That is exactly right.
Mr. Waxman. I appreciate that the chairman was sensitive to
it, and I am sorry that it took until last night. Maybe if you
had a further opportunity, you would not have had to come here
at all, because what we really needed was for you to have a
chance to talk to each other and clarify these issues.
Ms. Nolan. I think Mr. Wilson and I agreed, and I hope that
he conveyed this to the chairman, that I hope these are the
kinds of conversations that we will be able to continue having
whenever necessary before we get involved in calling people up
to testify. I think we will be able to do that and work
together.
Mr. Waxman. I am glad you made that point, and I think it
is very forthcoming on your part, and I am pleased to hear that
they responded in the conversation last night. May this be the
beginning of a wonderful relationship. And let's do our jobs in
a professional manner, but to have you come back 3 weeks after
you spent 6 hours here to answer questions which could have
been answered in a telephone conversation strikes me as an
unfortunate waste of your time and ours. Our time is all being
paid for by the taxpayers, and they ought to feel that their
money is not being wasted.
In a May 3 letter to the chairman, you expressed concern
about this issue, and I would like to have that letter in the
record. I think there was a May 3--May 2 and May 3 letter to
the chairman, and perhaps his letters to you all ought to be
part of this hearing record.
Mr. Chairman, if you have no objection, I would like to ask
unanimous consent.
Mr. Burton. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T9621.633
[GRAPHIC] [TIFF OMITTED] T9621.634
Mr. Waxman. Your May 3 letter noted that there historically
has been a view that accommodation is an important part of this
process of inquiries between branches of government. Your
understanding is consistent with that of the previous
administration's. As your letter noted, in 1989, then Assistant
Attorney General William Barr stated, and I want to quote your
quote of his quote--Mr. Barr, the Attorney General, said, the
process of accommodation requires that each branch explain to
the other why it believe its needs to be legitimate. Without
such an explanation, it may be difficult or impossible to
assess the needs of one branch and relate them to those of the
others. At the same time requiring such an explanation imposes
no great burden on either branch. If either branch has a reason
for needing to obtain or withhold information, it should be
able to express it.
Ms. Nolan, do you believe that this committee has allowed
the White House's counsel office with appropriate opportunity
to express its reason for recent requests from this committee?
Ms. Nolan. Mr. Waxman, I was trying to do that over the
past several days. I was frustrated that I did not feel that we
were engaging in the accommodation process. I think we had a
very helpful conversation with Mr. Wilson last night, and I
think we have come to an agreement which I hope we will have a
beautiful relationship in which we will engage in the
accommodation process when we have concerns.
I understand, and I am sure this committee agrees with me,
that there are going to be great disagreements about some
matters, and they will be disagreements that sometimes may be
quite vigorous, but I think as long as we are forthcoming about
them, identify, as we did in this privilege log, what documents
we are concerned about and talk about, I hope that we can reach
a resolution, as we did here.
Both of the documents on the privilege log and the other
set of material, the e-mails that have been requested, I did
provide. When I hadn't been able to reach the chairman or Mr.
Wilson, I decided to just go ahead and send them on Tuesday. So
they have been provided to the committee, so we are now simply
talking about a log that really no longer--it is a draft that
never became a final because we ended up providing the
documents.
Mr. Waxman. There are legitimate differences between the
branches, and those things need to be worked out and discussed.
There are differences between the political parties, but we
ought to try to find out if there are places for
accommodations. And if there are disagreements, it doesn't mean
that one side is disloyal to this country and the other side is
true blue American. We have differences of opinion by people
who both love this country and support its Constitution and its
institutions.
And I haven't heard very often praise from the other side
of the aisle, praise of what any Democrat has said, but I want
to praise what a Republican has said, and that is Mr. Barr. And
I disagreed with him a lot when he was a Republican Attorney
General during the Bush administration. I disagreed with him on
a lot of issues, but I think his position, as you quoted him,
expresses the basis for the two branches trying to understand
each other. If one branch wants some information, we ought to
be able to, if it is us, to explain why we feel we need it. And
if the executive branch feels that there is some reason that
you shouldn't give it, you ought to be able to explain that,
and we will work through the process if it comes to a
confrontation. But I don't see the need for constant partisan
confrontation. I think we could be spending our time in so much
more of a productive way.
I was so impressed by Cheryl Mills' statement to this
committee this morning. I would recommend the text of it to you
if you have an opportunity in your spare time to read it,
because what she said to us in a very heartfelt way is that
there are problems. And this committee which has jurisdiction
for oversight and investigations on any problem facing this
Nation could be looking into some of these real problems, and
we have spent so much of our time in partisan--partisan kind of
fights, investigations that are one-sided.
This committee had a campaign finance investigation. Did we
look into abuses of campaign finance laws by Democrats and
Republicans? No, it was an investigation of presumed abuses by
Democrats, some of which were real, and it was only about
Democrats. Does anyone believe that campaign laws are only
abused by Democrats? And yet this committee refused to even
look at those allegations of concern where Republicans may have
stepped out of bounds.
I think we are all moving to better a situation because
yesterday the chairman agreed with us and made accommodations
that we are going to get the Justice Department 302s in some of
those Republican campaign finance issues where they did some
interviews with people who may well have something to--
something to say that may be relevant on the accusations about
Republican campaign finance abuses.
But there are so many other problems we ought to be dealing
with. I am at the point where I would be welcoming this
committee to look at Elian Gonzalez, because we have had four
hearings on this issue, and we have about exhausted it. Maybe
we will have more. I would like us to look at the high prices
of prescription drugs that the elderly pay because Medicare
doesn't pay for it. I would like us to look at environmental
problems, some of which I think cause the high rate of cancer
in this country. I would like us to look to see if there is an
innovative way that we can improve the education system in this
country so we can educate our children to compete in a new
global economy. I would like to look at international problems
to see if we can make this a safer planet and reach out to
other countries to give incentives for people to try to find
areas of agreement internationally.
I think there is a whole plethora of issues that we could
be talking about, but what we have done in four hearings is we
took a data base system that the White House contracted to have
created to capture the e-mails in order to archive them for
historical purposes, and after that contract was let out for
these archiving of the e-mails and retrieval of them to be
archived, it turned out that the contractor ended up making
some technical mistake, and some e-mails were not being
captured. When it was discovered, people moved to correct that
problem, and it was corrected prospectively.
Now the issue that we are faced with in four hearings so
far was whether there were lost e-mails retroactively. It
appears that the White House counsel's office thought that all
of the e-mails that the investigators who wanted e-mails were
turned over to them because there are other ways to get the e-
mails off the individual computers as well as the centralized
system, and that may not have been the case. But to assume that
it is a conspiracy and obstruction of justice, perjury and all
of the others things thrown so loosely around this committee,
everyone else is guilty of a crime if there is some mistake
made, can't help but lead to an exacerbation of the problems
between the branches and between the parties, and it has kept
us from looking at areas where we could be together dealing
with the real concerns of the American people.
You have been here for a number of hours, and I see that
Mr. Shays is ready to ask you more questions, as is appropriate
under the rules. We may have other questions as well. We will
ask all of the questions that anybody might want to ask you of
you, and I hope in the future the spirit in which you undertook
conversations with the majority on our committee last night
will lead to ways to get to the basic information we want
without disturbing everybody's schedule and wasting our time
and wasting taxpayers' money so we can get to the information,
get to it in the most efficient possible way and find out if
there is wrongdoing.
If there is wrongdoing, I don't care if it is Democratic or
Republican wrongdoing, if there is a criminal violation, it
should be prosecuted. If somebody makes an accusation and it
turns out to be wrong, they should apologize. We should let the
truth speak for itself and not simply go from one accusation to
another.
Obviously I have taken a lot of my time because each side
is given a half hour. I don't have anything else to ask you. I
am going to yield back the balance of my time. I hope that at
some point we can conclude this hearing that has gone on far
longer than I think is necessary.
Mr. Burton. Mr. Shays.
Mr. Shays. I know that is encouragement on your part, the
gentleman from California not to ask questions, but I haven't
asked questions of this panel yet.
Mr. Waxman. That is not the case.
Mr. Shays. It sounded that way. I guess I misinterpreted
it.
Ms. Nolan, I am curious why you are here today. Why did you
feel that you needed and wanted to be here?
Ms. Nolan. Mr. Shays, my understanding was that the
committee wanted to ask questions about the office's decision
to put items on a privilege log or its interpretations of the
subpoena. Those are decisions of the counsel's office and of
the counsel, and my understanding also is that the past
practice has been when similar questions were put to associate
counsel by this or other committees, Mr. Ruff had sat and
answered those questions rather than having the associate
counsels do that. I asked for the same treatment, and the
chairman granted it.
Mr. Shays. Just for the record, you are here because you
wanted to be here?
Ms. Nolan. I am here voluntarily.
Mr. Shays. We did not ask you to be here?
Ms. Nolan. That is absolutely correct. What you did, do,
however, was ask someone who I did not think should be asked to
appear here to answer those questions. I tried to reach an
accommodation with the committee about getting the right person
to answer the questions.
Mr. Shays. I don't want Mr. Waxman or anyone else to
suggest that we asked you to come again. Frankly, you made it
clear to us that you started in September last year?
Ms. Nolan. That's correct.
Mr. Shays. So all of the questions about what happened in
June 1998, you were basically telling us that you knew nothing
about it.
Ms. Nolan. No, I came to answer those questions about the
privilege that we discussed.
Mr. Shays. I understand. I am just explaining to you.
Mr. Nionakis, you have worked in the White House since
when?
Mr. Nionakis. Since March 1997.
Mr. Shays. You were sworn in, correct?
Mr. Nionakis. That's correct.
Mr. Shays. The reason you are sworn is because then you
have a legal obligation to tell the truth; is that correct?
Mr. Nionakis. That's correct.
Mr. Shays. So if we picked up the phone and said, by the
way, did you happen to get any--for instance, did you see this
document that talked about the 246,000 e-mails that slipped by
under the Mail2 problem, you could have said, no, I don't know
anything about it, it would be a meaningless statement under
law if we did it by phone; isn't that correct? Or whatever you
said by phone, it would have no legal standing, would it?
Mr. Nionakis. I would try and answer honestly and
accurately.
Mr. Shays. I respect that, but the point is this is an
investigation in which we need to swear you in. Unfortunately,
you are here because we needed to swear you in. When you said
that you didn't know anything about this problem until February
of this year, you did it under oath?
Mr. Nionakis. That's correct.
Mr. Shays. That is why you are here. We had questions that
had you answered differently, and we had no way of knowing
under oath how you would have answered, we would have asked you
other questions. That is why you are here, and it doesn't take
a rocket scientist to know that.
You also wrote a puzzling letter to the committee, and I
think you know what letter it is. It is the letter of April 28,
exhibit 139. Maybe there is an answer for it, but it sure
puzzles me. I will give you time to look at that letter. It is
from you, I believe, and it is addressed to our counsel, James
Wilson.
[Exhibit 139 follows:]
[GRAPHIC] [TIFF OMITTED] T9621.635
[GRAPHIC] [TIFF OMITTED] T9621.636
Mr. Nionakis. OK.
Mr. Shays. Would you read out loud paragraph 4 for us.
Mr. Nionakis. ``The general language of the subpoena calls
for all documents relating to the `Mail2' programming error.
The Lewinsky related e-mails, while gathered after the `Mail2'
error was discovered, are unrelated to that error. They were
gathered in response to a subpoena request from the Office of
Independent Counsel Starr, and therefore pertain to a distinct
matter by a different investigative body.''
Mr. Shays. What did you mean when you said, ``The Lewinsky
related e-mails, while gathered after the `Mail2' error was
discovered, are unrelated to that error?'' What do you mean by
that?
Mr. Nionakis. I will defer that question to Ms. Nolan.
Mr. Shays. I am happy to have you defer it, but this letter
is from you. We will let Ms. Nolan answer it, but could you
explain to me what you meant when you wrote the letter? I don't
want to know what Ms. Nolan meant, I want to know what you
meant.
Ms. Nolan. Mr. Chairman, I believe this is exactly the kind
of question with respect to what our office's position was with
respect to these documents that we agreed could be answered by
me.
Mr. Shays. Could I say I am happy to have you answer it,
but could I have Mr. Nionakis answer it because he wrote the
letter and let you qualify it or change it. Is that a problem?
Ms. Nolan. I believe what we agreed to, and I explained to
Mr. Wilson----
Mr. Shays. I will go with the agreement. Let's go with the
agreement.
Mr. Nionakis. Mr. Nionakis, did you write this letter?
Mr. Burton. Excuse me. I think Mr. Wilson has indicated
that it is not his understanding----
Mr. Shays. I can live with it. Did you write this letter?
Mr. Nionakis. I drafted it.
Mr. Shays. So this is your letter?
Mr. Nionakis. No, I drafted it, and other people reviewed
it.
Mr. Shays. And did you sign it, or did other people sign
it?
Mr. Nionakis. I signed it on behalf of the office.
Mr. Shays. So you wrote it, you let other people look at
it, and then you signed it, and yet we will have other people
answer. I am happy to have you answer, Ms. Nolan.
Ms. Nolan. Thank you, Mr. Shays.
The e-mails that were produced were simply the contents of
e-mails that had been sent between Monica Lewinsky and someone
in the EOP. They reveal nothing about, show nothing about the
Mail2 problem; and moreover, when I was here last, the chairman
himself indicated that he intended to issue a subpoena for
those documents. He had never done so. He never informed me
that he believed that the preexisting subpoena called for them,
and the first we had heard of that was a voice mail left by Mr.
Wilson last week that said, and we consider these e-mails to be
covered by the subpoena.
The view that our office took was that they weren't covered
by the subpoena; in fact, that the chairman wouldn't have
indicated he intended to subpoena them if he thought that they
were covered then. So we wrote that we did not believe that
they were covered by the subpoena. Instead of getting a phone
call, getting a question, asking for discussion about it, Mr.
Nionakis got a letter from the chairman saying, I am going to
subpoena you.
Mr. Shays. Mr. Nionakis, in the letter that you wrote and
drafted and signed, you said that these Lewinsky e-mails were
unrelated to the error. Would you explain to me why they are
not directly related to the error?
Ms. Nolan. Mr. Shays, we just explained what our office's
view was about why they weren't related.
Mr. Shays. You didn't say whether they related to the
committee.
Ms. Nolan. Related to the error. They are e-mails that have
nothing to do with the error. They are not about the search.
They are simply e-mails the contents of which reveal nothing by
themselves.
Mr. Shays. So these e-mails are in no way related to the
search that was done afterwards?
Ms. Nolan. It was our view that they were not called for by
the subpoena.
Mr. Shays. You all want to get into legalistic terms. I
just want to know the truth.
Ms. Nolan. There is not necessarily a difference, sir.
Mr. Shays. Maybe there won't be, and maybe in the end I
will agree with you, but I don't want you to confuse me in the
process.
After the White House learned that there was a Mail2
problem, Mr. Nionakis, when you all learned that--and he was
here before you, Ms. Nolan--when you all learned that,
evidently you made a test to see how big a problem it was. Were
any of these e-mails related to that test?
Mr. Nionakis. I did not participate in that search.
Mr. Shays. You know now, though. Were they related?
Ms. Nolan. Those were the e-mails, Mr. Shays, that were
uncovered. They don't reveal anything about the Mail2 problem.
Mr. Shays. Wait a second. Maybe you are right about this,
but we just had testimony that in order to see how serious this
problem was, we did a test, and the test was with Ms. Lewinsky,
and that satisfied us that there wasn't a problem. Are these
those e-mails? It is a yes or no.
Ms. Nolan. Those are the e-mails, I believe, that were
produced and checked.
Mr. Shays. That's all. That's all. We just wanted to see
the e-mails related to the test. And they are very related to
the subject of this hearing about the e-mails. And the
committee wants to know what you tested and what you found. How
can you say that they are not related to the test and not
related to the work of this committee?
Ms. Nolan. Mr. Shays, the independent counsel is reviewing
what was produced against that list. I don't think having those
e-mails enables the committee to make that determination. But
in any event--and I believe, as I said, that the chairman had
indicated his determination that they weren't covered by the
previous subpoena. But, in any event, I determined that the
committee could ask for them and that rather than have a
dispute about it, I would just provide them. So on Friday we
notified the committee that we did not consider them covered,
and on Tuesday we provided them to the committee.
Mr. Shays. I know Mr. Waxman thinks you cooperate, but to
me this is like a ridiculous game. The committee has learned of
hundreds of thousands of e-mails that have been lost. That is
what we learned. And we wanted to know, one, how it happened,
and we are pretty satisfied it was an accident. We also learned
that it took another 5 months to fix, so the problem got worse
before it got better. We also learned that nobody in the White
House notified us, and then we wanted to know who knew what
when. And everybody has their own little compartmentalized
story. And then we get a letter that basically says these are
unrelated to the error in Mail2, and they are totally related.
Mr. Nionakis, you may have drafted the letter, and maybe
somebody has to answer for you, but it just blows my mind that
you would have said that.
Mr. Burton. The gentleman's time has expired.
Mr. Waxman.
Mr. Waxman. I am puzzled because Mr. Shays is asking Mr.
Nionakis about these letters and these e-mails, and you are
arguing about whether they are related or not related. Why
didn't you give them to the committee?
Ms. Nolan. We provided them to the committee. We gave them
on Tuesday.
Mr. Waxman. So we now have the e-mails?
Ms. Nolan. You now have the e-mails and the ZIP disk.
Mr. Waxman. So we can read those e-mails?
Ms. Nolan. Yes.
Mr. Waxman. And we will probably make them part of the
record. Maybe they are already part of the record. That I will
leave up to the chairman.
Mr. Burton. Would the gentleman yield?
Mr. Waxman. Certainly.
Mr. Burton. We have no interest in the Lewinsky matter,
only the e-mail problem, so there is no reason to make them
part of the record.
Mr. Waxman. I would dispute you on that.
So the question is that you wrote this letter, Mr.
Nionakis, and said that the general language for the subpoena
calls for all documents relating to the Mail2 programming
error. The Lewinsky e-mails, while gathered after the Mail2
error was discovered, are unrelated to that error. You can
argue that one forever, but the essential point is that we got
the e-mails, and we can make our own decision.
Ms. Nolan. I think that is right, Mr. Waxman, and I think
there are two different views about whether they were called
for or not.
I made a determination to accede to the committee's view
that they were called for without having a dispute about
whether a new subpoena was called for and provided them, and
the committee has them. I am not sure what else to say about
them.
Mr. Waxman. I don't know what else to say about them
either. If you hadn't given them to us, then there is a lot to
talk about, whether you should have given them, whether you are
withholding information, whether it is part of a cover-up,
whether you are confronting Congress irresponsibly, whether we
have a different point of view than you do on executive; but
that has nothing to do with anything. Whether you think that we
are entitled to it or not, you decided to give it to us?
Ms. Nolan. That's right.
Mr. Waxman. And we have got them?
Ms. Nolan. You have got them.
Mr. Waxman. That is good enough for me. I yield back the
balance of my time.
Mr. Shays. Mr. Chairman.
Mr. Burton. Mr. Shays.
Mr. Shays. Mr. Ruff's staff thought they revealed that
there was--you basically said that they revealed nothing, they
showed nothing about the Mail2 program; and Mr. Ruff was
telling us that having done this, he revealed there was no
problem, at least he thought it was taken care of. So he
thought that these Lewinsky e-mails showed that there really
wasn't a problem, and you are saying they reveal nothing about
the problem.
Ms. Nolan. Sir, I think they will reveal something to the
Office of the Independent Counsel who has jurisdiction over
this matter to compare what was produced to them with that
group of e-mails.
I think the e-mails by themselves reveal nothing about the
Mail2 problem, provide no information to the committee. These
are just Monica Lewinsky e-mails.
Mr. Shays. But it was the basis, was it not, for the White
House making a determination that they had tested the Mail2
problem and found that there was no problem? Isn't that true?
Ms. Nolan. That is my understanding. But the e-mails
themselves, which is what was called for, I don't think reveal
anything about the Mail2 problem.
Mr. Shays. Thank you.
Mr. Burton. Well, I think we have come to the end of the
road.
Mr. Nionakis. Mr. Chairman, 1 minute, please.
Mr. Burton. Go ahead.
Let me just say that Mr. Waxman has complained about the
failure of the Bush administration to cooperate. I want to get
that part of the record straight. They claimed executive
privilege once, and the Clinton administration has claimed it
14 times in the last 5 years, so that at least is in the
record.
I appreciate your statement of cooperation, Ms. Nolan, and
I would just like to say to Mr. Nionakis, I recall when you
worked with Mr. Ruff, you were in my office, and we were
talking, I think, back in 1997 when I assumed the Chair of this
committee. I believe we were talking about getting documents
from the White House at that time, and you were part of the
staff that Mr. Ruff brought with him to my office; is that
correct?
Mr. Nionakis. That's correct.
Mr. Burton. You appeared to be one of the people that Mr.
Ruff had a great deal of confidence and were one of his
confidants. I am not saying that you have misled us, but that
is why I find it difficult to believe that being a member of
his staff and the subsequent counsel staffs, that you would not
be aware of the e-mail problem when it came about. And you are
saying that you didn't know about it until February of this
year, and that kind of mystifies me because of your close
association with Mr. Ruff and his--and Ms. Nolan and Ms. Mills.
Mr. Nionakis. I understand, Mr. Chairman, but to the best
of my knowledge, the first time I ever heard about this
problem, the e-mail problem, was February 2000.
Mr. Burton. Let me just followup on that.
Mr. Nionakis. Yes, sir.
Mr. Burton. Can you categorically say--and not to the best
of your knowledge, because do you know how many times I have
heard ``to the best of my knowledge'' and ``I can't recall''
and ``I am not sure''? I mean, the selective memory loss of
people before this committee--I'm not saying you--is just
legion, so I would like you to be more definitive.
Can you say categorically that you did not know about the
e-mail problem until February of this year?
Mr. Nionakis. One moment, please.
Mr. Chairman, I do not recall ever hearing about the e-mail
problem prior to February 2000. I cannot categorically say I
never did. If there is something--if you understand otherwise,
I would be happy for you to bring it to my attention.
Mr. Burton. That's all right. I just want to say in the
finest tradition of the Clinton administration, we are getting
the same answers that we have gotten from the beginning. Let me
thank you.
Mr. Nionakis. Excuse me, may I amplify one other answer?
You asked about conversations with DOJ attorneys, and I am sure
that this committee is well aware that obviously our office
speaks to members of the Campaign Finance Task Force and their
investigation, and they are a DOJ entity, as well as members of
the Civil Division who represent us on various litigation
matters where this issue has come up. So those conversations
obviously occur, and those people are DOJ lawyers.
Mr. Burton. I am glad you mentioned that because as we
close, that makes another strong argument for a special counsel
to review this whole issue, because you have got the Criminal
Division of Justice on one side and the Civil Division on the
other side, and how two divisions of the same Justice
Department can conduct an investigation like that is beyond me.
That's why once again I believe we should have a special
counsel to review that whole matter. I appreciate you being
here today.
Ms. Nolan, I appreciate the olive branch that you have
extended to Mr. Wilson and myself. We will try to work with you
in a way that is accommodating to you, but we do want to get
the facts when we need them, and hopefully that will occur.
If there are no further comments or questions, we stand
adjourned.
[Whereupon, at 5:05 p.m., the committee was adjourned.]
[Additional information submitted for the hearing record
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